Bangalore District Court
T.R.Anantha Raju vs G.Bhagya Jyothi on 2 January, 2021
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 2nd day of January - 2021
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.24230/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : T.R.Anantha Raju,
S/o.Rangaswamy,
Aged about 55 years,
R/at No.252, 5th Cross,
'D' Group Employee Layout,
Lingadheeranahalli, Andrahalli Main
Road, Bengaluru-91.
(Rep. by Sri.M.G.Sateesha, Adv.)
V/S
Accused : G.Bhagya Jyothi,
W/o.N.Mahadevaiah,
Aged about 42 years,
R/at. No.109, I Main,
Ekadanthanagara,
Andrahalli Main Road,
Herohalli, Bengaluru-91.
(Rep.by Sri.B.N.Shivakumar Swamy, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 02.01.2021.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.24230/2017
JUDGMENT
The complainant has presented the instant complaint against the accused on 18.09.2017 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.7 lakhs.
2. The factual matrix of the case complainant case are:
The complainant has pleaded that, the accused was his family friend and well known to him for past several years. During the 1st week of July, 2016, accused had approached him and obtained the hand loan of Rs.7 lakhs to meet out her family legal necessities and also to clear the hand loan raised by her from others and assured to repay the same within one year.
The complainant has averred that, after completion of the stipulated period, when he demanded the accused for repayment of the said hand loan, at that time, she towards discharge of her liability got issued cheque bearing No.795677 dated:18.07.2017 for sum of Rs.7 lakhs, drawn on Bank of India, BEL Layout, East West College Road, Bharat Nagar, Bengaluru, in his favour and assured to honour the said cheque on the date of its presentation.
The complainant has further alleged that, believing the promise and assurance made by the accused, on 18.07.2017 he Judgment 3 C.C.No.24230/2017 presented the said cheque for encashment through his banker viz., Textile Co-operative Bank Ltd., Magadi Road Branch, Bengaluru. But on seeing the memo dated:19.07.2017, he got utter shock and surprise the said cheque came to be dishonoured for the reasons "Payment Stopped by Drawer".
The complainant has further contended that, immediately, he approached the accused and informed about the dishonour of the cheque and demanded to pay the amount covered under the cheque, but she has been dragged on one or other reasons.
Hence, on 07.08.2017, he got issued legal notice to the accused by R.P.A.D., and the same got served on accused and in turn, on 23.08.2017 she got issued untenable reply by suppressing true and real facts in order to cause wrongful loss to the complainant and made illegal gain. Thereby, she committed the offence punishable under Section 138 of Negotiable Instruments Act.
Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
Judgment 4 C.C.No.24230/2017
4. In response to the summons, the accused appeared through her counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to her, wherein, she denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P9. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by her was recorded. In support of the defence, the accused herself was examined orally as DW.1 and got marked Ex.D1 & D1(a) and also subjected for cross-examination by the advocate for the complainant. In the cross-examination of DW.1, complainant counsel got confronted four documents and same are got marked as Exs.P10 to P13.
7. The respective advocates for the complainant and accused have addressed their arguments.
Judgment 5 C.C.No.24230/2017
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.7,00,000/- during 1st week of July, 2016 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.795677, dated:18.07.2017 for sum of Rs.7,00,000/- drawn on State Bank of India, BEL Layout, East West College Rod, Bharat Nagar, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
-: UNDISPUTED FACTS:-
10. The fact that, the cause title address of complainant and accused made mentioned in the present complaint is not in dispute. The fact that, one Mr.Gajendra.T.R is the brother of Judgment 6 C.C.No.24230/2017 complainant herein, who was working at HAL is not in dispute. The fact that, his wife Smt.Geetha was doing saree selling business is not in dispute. The fact that, the complainant as he deposed, he is doing tailoring business and his wife is the house wife is not in dispute.
The fact that, questioned cheque at Ex.P1 and signature found therein at Ex.P1(a) belongs to the accused is not in dispute. The fact that, the questioned cheque as per Ex.P2 banker slip came to be dishonoured for the reasons 'Payment Stopped by Drawer' is not in dispute. The fact that, the exchange of legal notices between complainant and accused are not in dispute.
The fact that, as per Ex.D1 the accused had her bank account at State Bank of India is not in dispute. The fact that, as found in Ex.D1(a) entry, through accused bank account by way of cheque bearing No.795676 got paid sum of Rs.1,50,000/- as per Ex.D1(a) dated:26.08.2015 is not in dispute. The fact that, the accused is the President of Akshaya Kriya Chethana Credit Co- operative Society, wherein the wife of complainant by name Smt.Girija and the wife of his brother Mr.Gajendra.T.R by name Smt.Geetha are the Directors therein is not in dispute.
Judgment 7 C.C.No.24230/2017 The fact that, as per Ex.P6 registered sale deed the complainant's wife and children got sold their property on 21.03.2012 for the sale consideration made mentioned therein for Rs.35 lakhs is not in dispute. The very wife and children subsequently as found in Ex.P7 got purchased the property on 30.03.2012 for the sale consideration made mentioned therein is not in dispute. The fact that, as found in Ex.P12, accused had run Vidya Vinayaka International School is not in dispute. The fact that, as found Ex.P13 cheque belongs to the accused including her signature is not in dispute.
The fact that, the complainant had a daughter by name Dimple and she got married in the year 2016 by spending sum of Rs.10 lakhs to Rs.12 lakhs, as he deposed, is not in dispute. The fact that, Mr.Shekar and Mrs.Sunitha had filed separate cheque bounce cases for sum of Rs.1 and sum of Rs.2,66,000/- against the very accused herein in C.C.Nos.15345/2017 and 51073/2017 are not in dispute. The fact that, as found in Exs.P10 and P11 pertaining to those cases, the accused herein got convicted by imposing fine sentence also not in dispute.
Judgment 8 C.C.No.24230/2017
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P13, they are:
a) Ex.P1 is the cheque bearing No.795677 issued by the accused for sum of Rs.7 lakhs dated:18.07.2017, drawn on State Bank of India, BEL Layout, East West College Road, Bharat Nagar, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:19.07.2017.
d) Ex.P3 is the Legal Notice dated:07.08.2017.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the postal acknowledgment card.
g) Ex.P6 is the certified copy of absolute sale deed dated:21.03.2012 executed by the family members of complainant herein in favour of Champalal Bhansali.
h) Ex.P7 is the another certified copy of sale deed dated:30.03.2012 executed by one Smt.Roopashree.H.R in favour of wife of complainant herein.
i) Exs.P8 and P9 are the Statement of accounts pertaining to one Komal, who is the son of complainant herein.
j) Exs.P10 and P11 are the certified copies of judgments in C.C.Nos.15345/2017 and 50073/2017 on the files of learned 4th Addl. And 30th ACMM Court, Bengaluru (SCCH-6).
Judgment 9 C.C.No.24230/2017
k) Ex.P12 is the one photograph.
l) Ex.P13 is the original cheque bearing No.549465 dated:22.08.2016 for Rs.40,000/- issued by accused herein in favour of one Smt.N.Chandramma and
m) Ex.P13(a) is the signature of accused herein.
The PW.1 was subjected to the cross-examination by the advocate for the accused.
12. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed his side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to her as required under Section 313 of Cr.P.C., wherein, she denied the same.
13. In order to prove the defence of the accused, the accused herself choosen to entered into witness box and examined orally as DW.1 on oath. Wherein she has deposed that, she knew the complainant and as alleged by him in the present complaint, she not borrowed the loan and for payment of Rs.7 lakhs, she not issued the questioned cheque at Ex.P1 and she not liable to pay the amount covered under the cheque. The accused has disclosed her defence by stating that, in the year 2013 to 2015, Mrs.Geetha and her husband Mr.Gajendra.T.R did the saree business. Mr.Gajendra.T.R is the government employee and his Judgment 10 C.C.No.24230/2017 wife Mrs.Geetha for the purpose of sell sarees, the accused gave loan in between 2013-15. In the year 2015, the said Mr.Gajendra.T.R also asked for the loan of Rs.1,50,000/- from the accused and for making payment to him, she gave 3 cheques bearing Nos.795676, 795677 and 795678 signed in blank drawn on State Bank of India for encash Rs.50,000/- each. But the said Mr.Gajendra.T.R through cheque bearing No.795676 inspite of got encash Rs.50,000/-, he at a time got encashed Rs.1,50,000/- from her bank account against her direction. Later, she asked the said Mr.Gajendra.T.R to return remaining 2 cheques, he assured to return, but not yet returned. Therefore, on 02.05.2016 in respect of other 2 cheques, she gave stop payment instruction to her banker.
The accused has further contended that, in the year 2017, the said Mr.Gajendra.T.R and his brother complainant herein gave legal notice separately by alleging that, they are lent loan of Rs.10 lakhs and Rs.7 lakhs respectively to the accused. To the same, she got issued reply. Either to the complainant or to Mr.Gajendra.T.R, she is not liable to pay the cheque amount and she got produced her State Bank of India bank passbook and got marked at Ex.D1 and the relevant entry of making payment of Rs.1,50,000/- to Mr.Gajendra.T.R dated:26.08.2015 got marked at Judgment 11 C.C.No.24230/2017 Ex.D1(a). Thereafter, the DW.1 was subjected for cross- examination by the advocate for complainant in detail. With that, the accused got closed her side.
14. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheque at Ex.P1. Therefore, it needs to draw the presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is prove, the holder of the cheque, the complainant received the same for discharge of legal liability. This presumption is rebuttable. As per Sections 139 and 138 of Negotiable Instruments Act, it requires to presume that, cheque is issued by the drawer to the drawee in respect of discharge of liability. It is statutory presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued the Ex.P1-cheque unless and until contrary prove. Therefore, as per those sections, it made clear Judgment 12 C.C.No.24230/2017 that, it is the initial onus on the accused to prove his defense based on the principles of 'Preponderance of Probabilities'.
It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts, unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also, it was pleased to observed that, the accused can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, she relies could bare denial of passing consideration apparently does not appears to be any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving Judgment 13 C.C.No.24230/2017 to the complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to held that, mere denial of issuing cheque would not be sufficient as it is time and again noted that, once the cheque issued duly signed by the accused, the presumption goes against him as per Section 139 of Negotiable Instruments Act.
15. On going through the provisions referred supra, it made clear that, if the accused able to rebut he case of the complainant and statutory presumption, then it will be reverse burden on the complainant to prove the guilt of accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the Judgment 14 C.C.No.24230/2017 materials brought on record by parties, but also by reference to the circumstances upon which he relies.
16. In the case on hand, the accused has not admitted the claim put forth by the complainant. But from the inception by way of caused reply notice, to the demand notice issued by the complainant, she has resisted her claim. Thereby notice issued by the accused in original not been produced by the complainant. But, produced the xerox copy, not stated about the original copy which received by the complainant, why not been produced. However, in the pleading itself the complainant has categorically admitted that, the accused gave evasive reply on 23.08.2017. Though, the complainant has not produced the original copy of reply notice he got received, but produced its xerox copy. Since, both the parties have not disputed the reply notice caused by the accused. Mere because of it not marking, it does not mean that, it can ignore. Though, the xerox copy is available on record, none of them have choosen to mark, therefore, in order to ascertain the defence taken by the accused at appropriate stage, therefore, court has taken judicial notice on the reply notice issued by the accused dated:23.08.2017. Accordingly, this court has taken judicial notice on the xerox copy of the reply notice issued by the accused on 23.08.2017.
Judgment 15 C.C.No.24230/2017
17. On going through the said reply notice it discloses, the accused immediately after receipt of legal notice at Ex.P3 dated:07.08.2017, on 23.0.2017 itself caused reply and specifically denied the averments and allegations made by the complainant, as to alleged borrowal of loan of Rs.7 lakhs from the complainant and got issuance of Ex.P1-cheque for its repayment. On close perusal of the said reply notice, it discloses, the said reply notice caused by the accused to the complainant herein as well as to one Mr.Gajendra.T.R in common. Wherein also cited about the complainant and the said Mr.Gajendra.T.R got issued legal notice to the accused on 07.08.2017 by alleging, the complainant alleged to be lent loan of Rs.7 lakhs and the said Mr.Gajendra.T.R alleged to be lent loan of Rs.10 lakhs during the month of July, 2016 and wherein also alleged to be issued the cheques bearing No.795678 dated:28.07.2017 and another cheque bearing No.795677 dated:18.07.2017 for sum of Rs.7 lakhs and sum of Rs.10 lakhs respectively. The accused got denied the very notice issued by the complainant and said Mr.Gajendra.T.R. Wherein, she specifically taken up her defence that, during June, 2015 she has borrowed in all sum of Rs.1,50,000/- from Mr.Gajendra.T.R on the security of 3 signed blank cheques bearing Nos.795676 to 795678 and also Judgment 16 C.C.No.24230/2017 contended that, same were cleared on 26.08.2015 itself despite that, Mr.Gajendra.T.R without returned those security cheques, misused her cheques by him as well as through the complainant herein.
18. On going through the said reply it discloses that, the accused has put forth her specific contention, as to borrowing loan of Rs.1,50,000/- from Mr.Gajendra.T.R in the year 2015 on the security of 3 signed blank cheques and despite, she got cleared the same on 26.08.2015 without returned her cheques filed the false cases by himself as well as through the complainant herein. The said defence is not been seen while cross-examining the PW.1 as well as the accused deposed in the witness box as DW.1. The said contention got twisted by the accused by contending that, herself at the request of the said Mr.Gajendra.T.R for paying Rs.1,50,000/-, she got issued 3 cheques to him and insisted him to collect the amount of Rs.50,000/- each on those cheques, but against her instruction, the said Mr.Gajendra.T.R got encashed Rs.1,50,000/- through her cheque bearing No.795676 and despite, she requested him to return other 2 cheques, not returned, therefore, she got instructed her banker on 02.05.2016 to make stop payment on other 2 cheques. The said suggestion also discloses by way of suggesting to PW.1.
Judgment 17 C.C.No.24230/2017
19. During the course of cross of PW.1, it was suggested to PW.1 that:
"ಗಜಜಜದದ ನನನ ತಮಮ , ಗಜತ ಆತನ ಹಜಡತ. ನನನ ತಮಮ ಹಚಎಎಲನಲ ಕಲಸ ಮಡಡತತದರ. ಗಜತ ರಜಷಮ ಸಜರ ವವಪರ ಮಡಡತತರ . ಗಜಜಜದದ ಮತಡತ ಗಜತ ರವರಡ ಸಜರ ವವವಹರಕಕ ಸಜಬಜಧಪಟಟಜತ ಆರರಜಪಯಜದ 2015 ರಲ ಮರರಡ ಚಕಡ ಕ ಗಳ ಸಜಖವಖ795676, 795677 ಮತಡತ 795678 ಸಜರಯ ಹಣವನಡ ನ ಕಜತನ ರರಪದಲ ಪವತ ಮಡಡವ ಸಲಡವಗ ಪಡದದದರಡ ಎಜದರ ನನಗ ಗರತತಲಲ. ಸಕಯಡ ಸಸತಖ ಮಡಜದಡವರದಡ, ಆರರಜಪ ನನನ ತಮಮ ನಜದ ಕರಡ ರರಖ10 ಲಕ ಸಲವನಡ ನ ಪಡದದರಜದಡ ನಡಡಯಡತತರ. ಆರರಜಪ ಚಕಸಜಖವಖ795676 ರ ಪದಕರ ರರಖ1,50,000/-ವನಡ ನ ದನಜಕಖ26.08.2015 ರಜದಡ ಪವತ ಮಡದರಜದಡ ನನಗ ಗರತತಲಲ."
20. On going through the said testimony of PW.1, it reveal the defence of accused that, the brother of the complainant by name Mr.Gajendra.T.R and his wife Mrs.Geetha. He was working in HAL and his wife was doing saree selling business. It was suggested to him that, the said Mr.Gajendra.T.R and Mrs.Geetha in connection to the saree business in the year 2015 through 3 cheques bearing Nos.795676 to 795678 for making payment of saree on installments, took said 3 cheques from the accused was not denied by the PW.1, but he deposed, he does not know. But the PW.1 volunteers that, without denying the said suggestion Judgment 18 C.C.No.24230/2017 made by the advocate for accused, he volunteers that, accused also borrow loan of Rs.10 lakhs from his brother. He also deposed that, he does not know, as to the accused got paid Rs.1,50,000/- on 26.08.2016 by way of cheque bearing No.795676.
21. On close perusal of the said testimony of PW.1, he admitted the identity of person referred his brother and his wife and their work. Even he not denied, his brother and his wife in the year 2015 took those 3 cheques, which includes the Ex.P1-cheque is not been denied by the PW.1. He not taken pain to say on Ex.P1- cheque which suggested by the accused alleging that, it was given by the accused to his brother. Contrary to the same, the complainant has deposed, his brother also lent Rs.10 lakhs to the accused. The said evidence of PW.1 which discloses, there were financial and cheque transaction between Mr.Gajendra.T.R and accused. Though the complainant and accused have not produced reply notice dated:23.08.2017 caused by the accused, but the xerox copy which judicial notice taken by the court discloses, the different version of the accused. The accused in the reply notice stated, she borrowed loan of Rs.1,50,000/- from Mr.Gajendra.T.R on security of 3 cheques and got repaid. Without producing the said notice, the accused got twisted her defence by Judgment 19 C.C.No.24230/2017 contending that, she herself gave 3 cheques to Mr.Gajendra.T.R for making installment payment with regard to saree. Contrary to the same, the accused when in the witness box, she has orally clarified her defence that, the said Mr.Gajendra.T.R being government employee and Mrs.Geetha for doing saree business in the year 2013-15, she gave loan. Very particularly she deposed that, in the year 2015 the said Mr.Gajendra.T.R requested the loan of Rs.1,50,000/- and for making him payment in installments, she gave those 3 referred cheques including the cheque at Ex.P1 by directing him to encash by mentioned the amount of Rs.50,000/- each, contrary to the same, through the cheque No.795676 he got encashed Rs.1,50,000/- against Rs.50,000/- and without returning other 2 cheques despite, her request, she gave stop payment instruction to her banker on 02.05.2016.
22. From the reply notice as well as cross of PW.1 coupled with the evidence of DW.1, stage by stage the defence taken by the accused got twisted. However the said defence leads to draw the inference that, the monetary transaction inter-say between the complainant and Mr. Gajendra.T.R and cheques were alleged to be handed over by the accused to Mr.Gajendra.T.R. Therefore, the inconsistence defence taken by the accused, which does not Judgment 20 C.C.No.24230/2017 debar her defence, but revealed the transaction held between Mr.Gajendra.T.R and accused, therefore, it is the complainant needs to examine his brother Mr.Gajendra.T.R in connection to the alleged loan transaction. The examination of said Mr.Gajendra.T.R is very much required by the complainant, as he also claiming that, apart from lent the alleged loan of Rs.7 lakhs by the complainant, he also claiming his brother also lent Rs.10 lakhs to the accused, therefore, whatever the inconsistence defence taken by the accused, it revealed the other transaction purely held between Mr.Gajendra.T.R and accused, therefore, it would not come in the way of present case in she put forth her defence.
23. It is significant fact to note that, whatever the suggestion made to PW.1 with regard to the alleged loan transaction held between Mr.Gajendra.T.R and accused for the tune of Rs.1,50,000/- and got issuance of the above mentioned 3 cheques signed in blank including Ex.P1 and she claimed the payment of Rs.1,50,000/- on 26.08.2015 as found in Ex.D1, the complainant needs to examine his brother. Whatever the defence suggested by the accused through the mouth of PW.1 is not denied by him including the issuance of questioned cheque at Ex.P1-cheque along with other 2 cheques to the brother of Judgment 21 C.C.No.24230/2017 complainant. Thereby, the accused has created doubtful circumstances as to under which compelling circumstances questioned cheque was came into the hands of complainant.
24. In the cross-examination of DW.1 she categorically withstood her contention that, she is studied Diploma and also running Akshaya Kriya Chethana Credit Co-operative Society along with other directors including the wife of complainant and his brother. From which, it made clear that, the accused very much appeared before this court with specific defence and very much available in the witness box, it was the duty on the complainant to cross-examine her in respect of if any inconsistence defence taken by her, either in the reply notice or defensive suggestion made to PW.1, nor the contention raised by her in the witness box. Since, both the parties have not produced the reply notice dated:23.08.2017 caused by the accused to the complainant and his brother jointly, much reliance cannot be placed on that, with regard to the facts raised by the accused. Therefore, facts remains that, the accused in the witness box personally took upon the defence as to herself alleged lent of Rs.1,50,000/- to the brother of complainant by name Mr.Gajendra.T.R, therefore, the reliance has to be placed on the oral testimony of DW.1 as well as suggestion made to PW.1.
Judgment 22 C.C.No.24230/2017
25. Whatever the evidence placed by the accused as to she paid Rs.1,50,000/- to Mr.Gajendra.T.R as reflected in Ex.D1 bank statement very particularly on 26.08.2015 stands proved. If at all, Mr.Gajendra.T.R took loan of Rs.1,50,000/- as alleged by the accused inspite of encash that amount in installments of Rs.50,000/- each, as mentioned earlier through separate 3 cheques, it is not only he returned about other 2 cheques, it also require him to repay the said loan of Rs.1,50,000/-, in that regard the accused has very much silent. However her evidence discloses, admittedly she lent Rs.1,50,000/- to Mr.Gajendra.T.R on 26.08.2015. But the complainant has not choosen to demonstrate, what was the real transaction held between Mr.Gajendra.T.R and accused and the accused in which connection got issued 3 signed blank cheques including Ex.P1. The accused though appears to be taken up inconsistence defence, it was not challenged by the complainant by way of place any specific suggestion with regard to the same. Therefore, whatever the defence placed by the accused was suggested to PW.1 and the accused has made out sufficient grounds to rebut the statutory presumption as well as the alleged transaction. Thereby, whatever the suggestion made to PW.1, he not denied nor gave any specific explanation or to prove except the complaint Judgment 23 C.C.No.24230/2017 transaction held between complainant and accused. The accused gave Ex.P1-cheque to him, but he not choosen to produce any other evidence. The accused by way of repeatedly attack on the brother of complainant by name Mr.Gajendra.T.R by contending that, in connection to the transaction of Rs.1,50,000/- either she borrowed loan from the complainant or she lent loan to him and got issuance of 3 cheques including Ex.P1-cheque, the said Mr.Gajendra.T.R is the material witness require to be examine by the complainant, but without doing so, the accused has successfully rebutted the case of complainant.
26. That apart, if as alleged by the complainant, accused requested for the loan of Rs.7 lakhs during 1 st week of July, 2016, it is him to plead and prove as well as make necessary suggestion to DW.1, under which compelling circumstances the accused was in need of the said huge amount and exactly on which date she made approach the complainant herein and on which source the complainant being a tailor had mobilized the huge fund as such and on which security, where and when and on whose presence lent the said huge amount is required to be disclose, but he did not do so. Even there is no specific suggestion as to exactly on which date, the accused gave questioned cheque at Ex.P1 to the complainant and its due execution and issuance is also not been Judgment 24 C.C.No.24230/2017 suggested. Whatever the vague suggestion made to DW.1 that, accused took the loan of Rs.7 lakhs from the complainant in the year 2016 and for its repayment the accused got issued the questioned cheque is been denied by her. Thereby, she has discharged her initial burden and able to rebutted the statutory presumption and facts and circumstances narrated by the complainant. Thereby, she had created doubtful circumstances, as to the happening of alleged loan transaction between complainant and accused including got issuance of questioned cheque for discharge of existence of legally recoverable debt. Though DW.1 subjected for cross-examination, to whom also suggestion were made by the complainant that, apart from complainant, accused also took Rs.10 lakhs loan from the complainant's brother, and to whom also accused alleged to be issued one cheque for repayment. When there is serious allegation made by the complainant, as to she was defaulter in payment of loan to one Mr.Shekar and Mrs.Sunitha as found in Exs.P10 and P11, on which confidence the complainant and his brother go on lent the alleged loan to the accused itself creates doubt. Unless the complainant has produced clean picture or evidence, as to the happening of the said transaction, the available evidence of the complainant is insufficient to establish Judgment 25 C.C.No.24230/2017 his claim made in the present case. Therefore, the accused has made out her probable defence which attack on the claim of complainant, thereby, creates very doubtful movement as to, the alleged happening of loan transaction. Therefore, it is reverse burden by virtue of Section 139 of Negotiable Instruments Act, is created and thereby require to be prove the very case of the complainant.
It is well worthy to cite the decision reported in AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".
Added to that, in a decision of ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:
(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -
Judgment 26 C.C.No.24230/2017 Something probable has to be brought record -
Burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - Thereafter the said presumption arising under Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural even human conduct and public and private business) -
Evidence Act, 1872 - Section 114 - Presumptions of fact under".
27. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused.
28. On going through the pleading, it does not pleaded as to,for what compelling circumstances,the accused being a woman was in need of huge amount of Rs.7 lakhs and exactly on which date, where and when she approached the complainant is not been pleaded. Though, he had stated, the accused was having legal family necessity and to clear hand loans raised from others, it is the complainant needs to explain, what was the legal family necessities, from which the accused had borrowed loan, what extent she liable to pay nothing has been stated. By pleading as such, the complainant himself has admitted that, accused was Judgment 27 C.C.No.24230/2017 already due loan amount to the various persons, under such circumstances, on which capacity she is going to repay the loan, if the complainant is lent to the accused and on which security he lent the alleged loan to the accused is not been whispered nor explained or suggested to DW.1 through out the case.
29. That apart, exactly on which date, the accused was requested and how the complainant being a tailor having the monthly income of Rs.4,000/- to Rs.5,000/-, as he deposed in his cross-examination at the fag end, was able to mobilize the huge loan amount of Rs.7 lakhs and lent to the accused is also not been pleaded and explained. Even the complainant has not specified, on which basis he is contended that, the accused was agreed to repay the loan within one year. From which date the complainant has calculated the stipulated period and how he is projected that, the accused was issued questioned cheque, when and where, it was executed and issued is also not been pleaded. In the absence of necessary pleading, it require to appreciate the evidence of PW.1, at least he had an opportunity to explain and prove his case in the witness box. In that regard, the PW.1 has deposed that, apart from accused did chit business, she also run Akshaya Kriya Chethana Co-operative Society, therefore, he had known her since 7 - 8 years. This factum were not narrated by Judgment 28 C.C.No.24230/2017 the complainant earlier. Though he deposed, the accused had did such business, in his further cross-examination contrary to the same, he deposed that:
"ಆರರಜಪ ಏನಡ ಕಲಸ ಮಡಡತತರಜದಡ ವವಯಕತಕವಗ ನನಗ ಗರತತಲಲ.
ಆರರಜಪಗ 2016 ರ ಜರನ ತಜಗಳ ಮದಲ ವರದಲ ರರಖ7 ಲಕ
ಹಣವನಡ
ನ ನನನ ಮನಯಲ ನಗದಗ ಕರಟಟದನಡ. ಆ ಸಜದರರ
ದ , ನನಡ, ನನನ ಹಜಡತ ಹಗರ
ಆರರಜಪ ತನನ ಗಜಡನರಜದಗ ಬಜದದಡ
ನದನ ಮನಯಲ ಇದವ. ಸಡಮರಡ ಸಜಜ 5.00 ಗಜಟ ಸಮಯಲ
ಹಣ ಕರಟಟದನಡ. ಆ ಸಜದರರ ರರಖ500/- ಮತಡತ ರರಖ1,000/- ಮಡಖ ನ ಕರಟಟದನ. ಎಷಟಷಟ ಡ ನರಜಟಡಗಳದದವ ಎಜದಡ ಬಲಯ ನರಜಟಡಗಳನಡ ಗರತತಲಲ."
30. The PW.1 by deposing so has categorically admitted that, during 1st week of June, 2016, he gave Rs.7 lakhs in his house to the accused, by that time, the husband of accused was accompanied her and the wife of complainant and her sister were also present. Though, PW.1 has deposed as such, he not discloses exactly on which date, he lent the alleged loan to the accused. As per his say at 5.00 p.m. he lent loan to the accused in the presence of his wife and his wife's sister in his house with the denomination of Rs.500/- and Rs.1,000/- notes. He deposed, he does not know how much notes were he gave. However, he categorically deposes, at the time of alleged lent of loan to Judgment 29 C.C.No.24230/2017 accused, his wife and her sister were present. Definitely, those are the material eye witnesses require to be examine by the complainant, as he utterly failed to produce any documents or evidence with regard to his financial capacity of lent of loan of Rs.7 lakhs to the accused or physically handed over to the accused, as he alleged. Mere say of PW.1 that, he lent as such is not sufficient. As deposed by the PW.1, he is a tailor by profession, then how he mobilized the huge fund of Rs.7 lakhs is require to be seen from his explanation given in the witness box.
31. No doubt, the complainant has produced the sale deed at Ex.P6 dated:21.03.2012 which discloses, his wife and children got sold their property for the sale consideration of Rs.35 lakhs. The Ex.P7 discloses that, subsequently his wife and children got purchased another residential property on 30.03.2012 by mentioning sale consideration of Rs.25 lakhs. The documentary evidence prevails over the oral evidence. The complainant has not disputed the recitals made mentioned in Exs.P6 and P7. Contrary to the recitals as to the sale consideration made mentioned therein, the PW.1 has deposed that, he sold property at Rs.80 lakhs and out of the said sale consideration were purchased the house at Andhrahalli and remaining amount were lent to accused. He categorically admitted, sold the house in the Judgment 30 C.C.No.24230/2017 year 2012 for Rs.80 lakhs. The said Rs.80 lakhs is not been reflected in Ex.P6, but reflected Rs.35 lakhs. He also deposed that, though he sold property for Rs.80 lakhs, he purchased the house property for Rs.65 lakhs within 2 months from the date of he sold.
32. On going through the Exs.P6 and P7 it discloses, the complainant is not a party to the said sale transaction. He not specified his wife and children were sold and gave money to the complainant. However, taken into consideration of his oral say, if taken as true against his own documentary evidence at Exs.P6 and P7, as per his say, he sold property for Rs.80 lakhs and got purchased another property for Rs.65 lakhs, thereby, he had only balance amount of Rs.15 lakhs. He categorically admitted in his cross-examination that, his daughter by name Mrs.Dimple got married in the year 2016, for which he spent the amount of Rs.10 lakhs to Rs.12 lakhs. Whatever the amount he got left after purchase the house property at Ex.P7 may be of Rs.15 lakhs. The Pw.1 has deposed, he spent for his daughter's marriage for the tune of Rs.12 lakhs. Thereby, only sum of Rs.3 lakhs he got retained. In his further cross-examination he also deposed that, that apart, in the year 2015 by mortgage his property to the private person, he got borrowed loan of Rs.2 lakhs. If at all, he Judgment 31 C.C.No.24230/2017 had cash of Rs.3 lakhs after doing all the transaction stated above, was it necessary to him to mortgage his property in the year 2015 and borrowed loan of Rs.2 lakhs, it reflected the financial situation of the complainant. Which lead to draw the inference that, since he had no money, though he was in need of money for his personal purpose, he took the loan of Rs.2 lakhs by mortgage his property in the year 2015 itself.
33. By appreciating the sequence status supra, it made clear that, in the year 2015 itself the complainant himself was financial critical condition, therefore, he mortgaged his property and borrow the loan of Rs.2 lakhs. Therefore, contrary to his own financial complications, how it possible as he deposed earlier, by sold the property for Rs.80 lakhs, he purchased the property for Rs.65 lakhs and remaining amount were given to accused during July, 2016 itself is highly impossible. On appreciating sequence supra, it made clear that, by made of the expenses the complainant himself was no money in his hand, that too, in the year 2015, he borrowed mortgage loan. Therefore, how it possible to once again he possessed the sale consideration and kept with him till July, 2016 and alleged lent to the accused itself is not satisfactorily demonstrated by him. Therefore, it is the complainant has utterly failed to prove that, during 1 st week of Judgment 32 C.C.No.24230/2017 July, 2016 he had the request fund of Rs.7 lakhs in order to lend to the accused.
34. That apart, in order to show that, in the 1st week of July, 2016 she had requested fund of Rs.7 lakhs, admittedly, he not produced any other documents. If at all, he had requisite fund of Rs.7 lakhs as such, definitely, he needs to produce necessary documents or evidence, in that regard, no pleading nor explanation or any suggestion made to DW.1.
35. That apart, the complainant has not specified exactly on which date of during 1st week of July, 2016, accused had approached him for the loan. If at all, she approached him what was the assurance given by the complainant to her with regard to arrangement of fund and how he mobilized the fund and exactly on which date he lent to the accused is not been pleaded nor been suggested. The evidence of PW.1 including his pleading it does not reveal the date of alleged lent. It is not his contention that, he kept hard cash of Rs.7 lakhs in his house on the movement of accused requested for the loan, on the very same day in the presence of witnesses or document he lent loan to the accused. Therefore, unless furnishes necessary details as to alleged request and mobilization of fund and alleged lent it does Judgment 33 C.C.No.24230/2017 not mean that, the complainant has lent the huge amount of Rs.7 lakhs to the accused.
36. The complainant has pleaded, the accused agreed to repay the loan within one year, but she not repaid, thereafter, he approached her for repayment, then she got issued Ex.P1-cheque for Rs.7 lakhs. In order to calculate the cut off date of one year for repayment, from which date he started calculate and exactly on which date he had approached the accused and requested for repayment is also not been pleaded nor explained or suggested to DW.1. Even there is no clarity with regard to the alleged execution and issuance of Ex.P1-cheque by the accused to complainant. Through out the cross-examination of PW.1, he has not explained the doubtful circumstances created by the accused as to the alleged loan transaction. The complainant has produced the documents at Exs.P8 and P9. On going through the Exs.P8 and P9, it does not reveal the name of complainant, but reveal the name of Komala.A, who is none other than his wife. On going through the said statement it discloses, during 1st week of July, 2016 discloses the entries pertaining to the period of 2012-13 only. Even it does not discloses, for having receipt of the sale consideration made mentioned in Exs.P6 and P7. The said statement does not discloses, as on during 1 st week of July, 2016 Judgment 34 C.C.No.24230/2017 at least his wife had requisite the fund. Therefore, those statements are not fit to appreciate and no reliance can be placed.
37. That apart, the complainant choosen to produced the judgments at Exs.P10 and P11 in a cases filed by Mr.Shekar and Mrs.Sunitha against the accused herein. Those judgments revealed that, if at all, accused already in financial crisis as contended by the complainant, it is not the contention of complainant that, to clear those loans he lent the loan again to the accused. The dispute involved in the judgment at Exs.P10 and P11 or inter-say between the parties, the complainant has nothing to do with the same. Therefore, mere conviction of the accused in those cases would not suffice or pre-supposes the case of complainant.
38. No doubt, the complainant got produced cheque at Ex.P13 pertaining to the accused which bares the No.549465, which was tendered to the DW.1 during her cross-examination, wherein the DW.1 has deposed that, she had bank account at Karnataka State Co-operative Apex Bank Ltd. It is not the case of complainant that, the accused has various bank accounts in other banks. The production of Ex.P13 cheque or she run the school as found in Ex.P12 would not come in the way. On close appraisal of PW.1 Judgment 35 C.C.No.24230/2017 and DW.1, rather the complainant convince his case, as to he had requisite fund of Rs.7 lakhs and alleged lent to the accused and for its repayment the accused got issued the Ex.P1-cheque, he gave his contradictions, omissions and developments in his evidence, which goes very root of his case. The complainant has not specified exactly on which date the accused gave Ex.P1- cheque, but on going through the Ex.P1-cheque it discloses on 18.07.2017.
39. In the pleading, the complainant has stated that, after completion of one year, when he met the accused, then she gave cheque at Ex.P1 and promised and assured him that, the said cheque would be honoured on the date of its presentation. By pleading so, it conveys the meaning that, prior to the cheque dated, it was issued to the complainant. On going through the material documents at Ex.P1-cheque its dated:18.07.2017, it discloses, the same were presented by him for encashment on 19.07.2017. From which, it reveal that, on the very next date of cheque itself, the complainant had presented the same. Therefore, as he pleaded, the accused assured and promised the complainant to present the cheque on the date of it does not arise. The very pleading and documentary evidence created doubt as to due execution and issuance of the cheque. On prima-
Judgment 36 C.C.No.24230/2017 faice perusal of Ex.P1-cheque, on front and rare portion it discloses, admitted signature of the accused. On close perusal of the same, the fillings made therein is not similar to the admitted hand writing of the accused. Therefore, it is the complainant needs to explain the due execution and issuance of the cheque by the accused.
40. That apart, it also discloses, if at all, the accused gave cheque to the complainant, it is drawee only authorized to sign at rare portion of the cheque, contrary to the same it bares the another signature of the accused. The self-cheque only bares the signature of the drawer at rare portion, therefore, it is also one of the strong doubtful circumstances to suspect the due execution and issuance of cheque in favour of the complainant. The accused has narrated so many doubtful circumstances, which disbelieve the very claim put forth by the complainant as well as statutory presumption.
41. The PW.1 has repeatedly stated that, apart from his brother Mr.Gajendra.T.R were also lent Rs.10 lakhs to the accused. If at all, among whom, who lent first to the accused is not been stated. If really any loan was lent either by the complainant or by his brother Mr.Gajendra.T.R to the accused and it remains unpaid, Judgment 37 C.C.No.24230/2017 then whether any one of the them after knew the factum of non- repayment of loan, dare enough to come forward to pay another loan also created doubt. The accused as discussed earlier, as created so many doubtful circumstances with regard to the genuineness of claim put forth by the complainant. The complainant has utterly failed to discharge the reverse burden in proving his case, as to alleged lent of loan. As discussed above, though it is the burden on the complainant to prove his case beyond the reasonable doubt, on account of reverse burden created by the accused, he utterly failed to demonstrate that, he had requisite finance of Rs.7 lakhs as on the alleged lent. When he utterly failed to demonstrate the requisite fund in his hand, question of lent to the accused does not arise. Though, he specified, he lent loan to the accused in the presence of his wife and her sister, he not examined any one of the the.
42. That apart, he not satisfactorily demonstrated, on which date accused was made request and how he mobilized the fund and alleged lent to the accused is not been satisfactorily explained. In his cross-examination he has not denied, 3 cheques including Ex.P1-cheque were given by the accused to Mr.Gajendra.T.R as security for the loan of Rs.1,50,000/-. Even he not denied the financial transaction alleged to be held between his Judgment 38 C.C.No.24230/2017 brother and accused as suggested by the accused. The PW.1 in order to remove the doubtful circumstances created by the accused, as to misuse of questioned cheque by the complainant and his brother colluding each other, he not brought his brother to disprove the same. Mere because of complainant possessed the questioned cheque of the accused, it does not mean that, the amount made mentioned therein is the existence of legally recoverable debt. It is significant fact to note that, much earlier or presentation of cheque, as found in Ex.D1 the bank statement of the accused very particularly dated:02.05.206 as suggested to PW.1, she made stop payment instruction to her banker. The said bank on accepting the said instruction deducting the charges of Rs.345.50. The said entry pertaining to the undisputed point of time as its own significance, as to accused to caution as to misuse of her cheque, therefore, prior to the cheque dated:18.07.2017, she gave said instruction. Therefore, on the said ground only the Ex.P2 banker slip endorsement were made. The said precaution taken by the accused which safeguard her interest as to misuse of Ex.P1-cheque. Despite, the accused has made attack on the claim of complainant, he utterly failed to demonstrate his case beyond the reasonable doubt in order to convict the accused. Therefore, it is the consider opinion of this court that, the Judgment 39 C.C.No.24230/2017 complainant has utterly failed to prove his case beyond the reasonable doubt. Hence, the accused is entitled for benefit of doubt for acquittal.
43. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
In the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
"Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
44. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused Judgment 40 C.C.No.24230/2017 admits that, cheque bares her signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act - Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
45. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.7 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
Judgment 41 C.C.No.24230/2017 In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
46. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, she is not liable to pay Ex.P1 cheque amount of Rs.7 lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and she is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken her defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.7 lakhs. Hence, complainant has failed to prove Judgment 42 C.C.No.24230/2017 the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Apart from that, in a decision reported in, KCCR 12 (3) page 2057, the Hon'ble Apex Court held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
47. In the case on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show his financial capacity to lend an amount of Rs.7 lakhs to accused. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheque for discharge of Rs.7 lakhs does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.7 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 43 C.C.No.24230/2017
48. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Ex.P1 in discharge of her legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
49. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
50. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the Judgment 44 C.C.No.24230/2017 presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.7 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his case beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
51. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 45 C.C.No.24230/2017 The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 2 nd day of January - 2021) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : T.R.Anantha Raju List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Postal Acknowledgment card Exs.P6 & P7 : CC of sale deeds Exs.P8 & P9 : Statement of accounts Ex.P10 : CC of judgment in C.C.No.15345/2017 Ex.P11 : CC of judgment in C.C.No.50073/2017 Ex.P12 : photograph Ex.P13 : Original cheque bearing No.549465 Ex.P13(a) : Signature of accused
List of Witnesses examined on behalf of the defence:
DW.1 : Bhagya Jyothi List of Exhibits marked on behalf of defence:
Ex.D1 : Bank passbook
Ex.D1(a) : Relevant entry of Ex.D1
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 46 C.C.No.24230/2017
02.01.2021.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are
absent. No representation from both side
advocates, despite, web-host the case
proceedings and intimate the date of
pronouncement of judgment. Hence, as
per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.