Bangalore District Court
Prema vs Lakshminarasimhaiah on 7 June, 2019
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 7th day of June - 2019
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.18981/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Prema,
W/o.Beeresh,
Aged about 38 years,
R/at No.2471, 7th Cross,
7th Main Road, Hampinagar,
Vijayanagar, Bengaluru-40.
(Rep. by Sri.M.N.Nagaraju, Adv.)
V/S
Accused : Lakshminarasimhaiah,
Father name not known,
Aged about 45 years,
R/at. No.195,
Lakshminarasimhaswamy Prasanna,
Rathnamma Nilaya, 7th Cross,
7th B Main Road, Govindarajanagar,
Bengaluru-40.
And also at:
Lakshminarasimhaiah,
Horticulture Department,
BBMP Ward No.133 Office,
Hampinagar, Vijayanagar 2nd Stage,
4th Main Road, 5th Cross,
Bengaluru-40.
(Rep.by Sri.Vikas Banawane, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
Judgment 2 C.C.18981/2017
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 07.06.2019.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 05.07.2017 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.3 lakhs.
2. The facts raised in the complaint is as follows in brief:
The complainant and accused are acquainted with each other. In that acquaintance, the accused had approached the complainant in the 1st week of August, 2016 requesting for hand loan of Rs.3 lakhs to fulfill his family necessities and other legal obligations. Accordingly, on the request of the accused, the complainant advanced hand loan for the tune of Rs.3 lakhs to the accused by way of cash on 08.08.2016 and accused has agreed to repay the same within six months.Judgment 3 C.C.18981/2017
The complainant has further averred that, thereafter, the accused as agreed, not paid the loan amount by him, and though admitted his legal liability for repayment of the loan, he avoided todo so, and after the period of six months, when complainant has approached the accused, then he assured and promised to repay the same. The complainant run pillar to post and at last, after the much harassment, the accused had issued a cheque bearing No.437207 dated:13.02.2017 for Rs.3 lakhs drawn on Canara Bank, Adhichunchanagiri Mahasamsthana, Bengaluru for repayment of the loan and assured to maintain sufficient money in his account.
The complainant has further contended that, when she has presented the said cheque for encashment through her banker viz., State Bank of Mysore, RPC Layout Branch, Bengaluru, it was utter shock and surprise to see the endorsement dated:11.05.2017, cheque came to be dishonoured for the reasons "Funds Insufficient" in the account maintained by the accused. Thereafter, on 22.05.2017, she got issued legal notice to the accused by R.P.A.D through her counsel to both the addresses of the accused. The said notice sent through R.P.A.D to the 1st address of accused was duly served and 2nd address was returned stating "Absent" on 24.05.2017. After receipt of Judgment 4 C.C.18981/2017 notice, the accused neither paid the cheque amount nor issued reply notice. Thereby, he 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.
4. In response to the summons, the accused appeared through his counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, she herself choosen to examined as PW.1 and got marked Ex.P1 to P7. 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 the answer given by him was Judgment 5 C.C.18981/2017 recorded. In support of the defence, the accused himself was examined as DW.1 and got marked two documents at Exs.D1 and D2 and also subjected for cross-examination by the advocate for the complainant.
7. I have heard the arguments of both side counsels. The complainant counsel has also submitted his detailed written arguments.
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, she paid sum of Rs.3,00,000/- on 08.08.2016 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.437207, dated:13.02.2017 for sum of Rs.3,00,000/- drawn on Canara Bank, Sri Adhichunchanagiri Mahasamsthana, 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 Judgment 6 C.C.18981/2017 Point No.3 : As per final order, for the following:
REASONS
10. 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 P7, they are:
a) Ex.P1 is the cheque bearing No.437207 issued by the accused for sum of Rs.3,00,000/-
dated:13.02.2017, drawn on Canara Bank, Sri Adichunchanagiri Mahasamsthana, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:11.05.2017.
d) Ex.P3 is the Legal Notice dated:22.05.2017.
e) Exs.P4 and P5 are the Postal receipts.
f) Ex.P6 is the Postal Acknowledgment Card and
g) Ex.P7 is the unclaimed R.P.A.D cover.
The PW.1 was subjected to the cross-examination by the advocate for the accused.
Judgment 7 C.C.18981/2017
11. In order to prove the defence of the accused, he himself choosen examined as DW.1 and got produced two documents at Exs.D1 and D2. They are:
a) Ex.D1 is the Notarized copy of Aadhaar Card pertaining to the accused issued by Unique Identification Authority of India and
b) Ex.D2 is the Notarized copy of Driving Licence pertaining to the accused.
The DW.1 was subjected to the cross-examination by the advocate for the complainant.
12. Thereafter, incriminating evidence made against the accused under Section 313 of Cr.P.C. was read over and explained to the accused, wherein, he denied the same as false and stated that, he borrowed loan of Rs.3 lakhs from Rachaiah in the year 2015, he took signed blank cheque as guarantee from him. Despite, he repaid the said loan, he not returned the cheque, but filed the present case through the complainant by misusing the cheque and he not liable to pay money covered under the cheque.
13. That apart, he choosen to appeared before this court and examined himself as DW.1 and filed affidavit evidence. The complainant has not opposed the affidavit evidence of the accused. In the affidavit evidence, the accused has contended Judgment 8 C.C.18981/2017 that, he do not know the complainant personally and had any financial transaction with her. He not borrowed any loan from the complainant as alleged nor issued the questioned cheque for repayment of the loan. Legal notice is not been served on him. The complainant by gave false address in order to not served the notice on accused, send R.P.A.D to the wrong address, he not received the same. He denied the borrowing of loan and issuance of cheque to the complainant. Hence, prayed for dismissal of the complaint. The DW.1 was submitted for cross-examination.
14. During the course of cross-examination, the DW.1 admitted that, he is working as Gardner in BBMP Horticulture Department. Even, he admitted that, the questioned cheque and signature therein is of him. Though, he earlier stated, he does not known the complainant, in his cross-examination admitted that, he knew the complainant since 4 - 5 years. The DW.1 has deposed that, his residential address in accordance with the Aadhaar Card issued on 19.12.2011 as well as Driving Licence, which was issued in the year 2006-07 as per Exs.D1 and D2. The said address are prima-facie appears tobe altogether different from the address made mentioned in the post acknowledgment at Ex.P6. Wherein, notice was issued to the house address of the accused, so also the same is mentioned in the cause title as well as legal Judgment 9 C.C.18981/2017 notice, postal acknowledgment at Ex.P6, the complainant has not produced any document.
15. During the course of cross of PW.1, she has deposed that:
"DgÉÆæ 10 ªÀµÀðUÀ½AzÀ ¥ÀjZÀAiÀÄ. £À£Àß zÉÆqÀتÀÄä£À ªÀÄÄSÁAvÀgÀ DgÉÆæ ¥ÀjZÀAiÀÄ. DgÉÆæAiÀÄ ªÀÄ£É UÉÆëAzÀgÁd £ÀUÀgÀzÀ°è EzÉ. DvÀ£À ªÀÄ£ÉUÉ £Á£ÀÄ JA¢UÀÆ ºÉÆÃV®è."
16. As per the say of PW.1, though she claimed to be known the accused since 10 years. Admittedly, though she stated the house of the accused is in Govindarajanagar, admittedly, she not visited his house. In order to show that, the house of the accused is situated at Govindarajanagar, she has not produced any document, even legal notice issued to the address received by another person, not the accused. In order to show that, the person who singed the legal notice is a family member of the accused, the complainant has not deposed anything. When the complainant has not visited the house of the accused, at that time, then how she came to know the address of the accused is not been explained.
17. That apart, the PW.1 in her further cross-examination deposed that:
Judgment 10 C.C.18981/2017
"¤¦.1J ¸À» DgÀÉÆæ ªÀiÁrzÁÝgÉ. ¤¦.6 CAZÉ ¹éÃPÀÈwAiÀÄ°è EgÀĪÀ ¸À» DgÉƦAiÀÄzÀ¯Áè JAzÀgÉ EgÀ§ºÀÄzÀÄ. ¸ÀzÀj £ÀÉÆÃnøÀ£ÀÄß DgÉÆæAiÀÄ vÀ¥ÀÅà «¼Á¸ÀPÉÌ PÀ¼ÀÄ»¹PÀÉÆnÖzÉÝÃ£É . DvÀ£À «¼Á¸À £À£ÀUÉ UÉÆwÛ®è JAzÀgÉ ¸ÀjAiÀÄ®è."
18. From the said testimony of PW.1, she admitted that, signature at Ex.P1(a) is of the accused and similarly the signature found at Ex.P6 in the address of the accused, is not of the accused is also admitted by the PW.1. But she admits that, the said notice was issued to the wrong address of the accused, though she not knew the correct address of the accused was denied by her. As per her say, she never visited the house of the accused and clearly admitted that, notice at Ex.P3 is not served on the accused. Therefore, it made clear that, the complainant does not know, whereabouts of the accused is very much cleared, therefore legal notice at Ex.P3 is not served on the accused.
19. It is pertinent to note that, the complainant has issued legal notice to the office address of the accused. The DW.1 has deposed, he is Gardner in Horticulture Department of BBMP Division at Bengaluru. The R.P.A.D cover returned at Ex.P7 discloses the address of the accused without mentioning his designation. The R.P.A.D cover at Ex.P7 discloses, not the Judgment 11 C.C.18981/2017 designation of the accused, but admittedly, the accused is working as Gardner. In the BBMP office, how many persons in the name of accused are working and to make serve directly on the accused, it requires to mentioned the father's name of the accused or designation, but no such particulars have been seen in the Ex.P7 postal cover. Therefore, unless mentioned the correct address of the accused in order to serve the notice by way of R.P.A.D, it simply make note on the cover as 'Absent' on 23.05.2017, 24.05.2017 itself not amounts that, the accused unclaimed. Unless intimation was delivered to the accused, question of unclaimed the R.P.A.D cover does not arise. The post authority has endorsed as 'absent' then how it becomes unclaimed is also not a reasonable endorsement made by the postal authority. In order to make confirm that, the accused wantonly not claimed the R.P.A.D, though he was working as Gardner in BBMP, how can he become absent unless that, leave for few days, what was the impediment caused to the postman to make serve the R.P.A.D is also not satisfactorily explained. Without deliver the intimation, unclaimed the R.P.A.D does not arise, therefore, the endorsement made by the postal authority as unclaimed is also not satisfactory and acceptable one. Judgment 12 C.C.18981/2017
20. It is also pertinent to note that, after the concern postman mentioned as absent I/D (intimation delivered) and affixed his signature, to whom intimation was delivered is not been mentioned. The signature made to the said entries and signature made on the portion of address of the accused as unclaimed is altogether different and it also creates doubt, whether the concern postman has made the said endorsement or some other officials have made is also not been satisfactorily explained. However, complainant has utterly failed to prove the service of legal notice or intimation delivered on Ex.P7. Since, the accused is the government employee, question of he unclaimed, when he was working does not arise. If at all, he refuse should have to make such endorsement. The suggestion made by the complainant, as to borrowing of loan of Rs.3 lakhs in the year 2016 is denied by the accused. Even, to the DW.1 not suggested, when the accused was borrowed the loan of Rs.3 lakhs, what was the compelling circumstances to him to approach the complainant and borrow the amount and how could accused met the complainant to work pillar to post is also not suggested. Simply suggesting for borrowing of loan is not enough, at least in the line of pleading as to be suggested to DW.1, but no such effort was made. The DW.1 successfully withstood for his defence, therefore, it was the Judgment 13 C.C.18981/2017 reverse burden casted upon the complainant as required under Sections 118 and 138 of Negotiable Instruments Act.
It is relevant to cite the decision reported in (2014) 1 Supreme Court Cases (Cri) 791 (John K.Abraham V/s. Simon C Abraham and another). Wherein it was pleased to held that:
"It has to be stated that in order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant."
21. As per the said dictum, it is the complainant has to prove and demonstrate the very passing of consideration of Rs.3 lakhs, and in turn, the accused got issued the questioned cheque.
22. On going through the pleading, she not pleaded, when exactly the accused approached her for asking for the huge loan of Rs.3 lakhs, though admittedly, she doing Aaya work in Holy Angle High School, and her husband doing plumber work. The complainant not discloses, when the accused approached her and how she mobilized the fund, though she became getting monthly Judgment 14 C.C.18981/2017 salary of Rs.6,000/- is not been explained. Admittedly, the complainant being a Aaya and her husband became a plumber, both as per her say earning Rs.11,000/- p.m. and after deducting the expenses, how much they have saved and what was the amount kept in her bank or cash, she not been explained. In her cross-examination, she deposed that:
"DgÀÉÆæUÉ 3 ®PÀëªÀ£ÀÄß ¢.08.08.2017 gÀAzÀÄ PÉÆnÖzÉÝ. D ºÀt, £ÀªÀÄä vÀAzÉAiÀÄ d«ÄãÀÄ ªÀiÁgÁl ªÀiÁrzÀ ºÀt. £ÀªÀÄä vÀAzÉ £À£ÀUÉ PÉÆnÖzÀÝgÀÄ. D ºÀtªÀ£ÀÄß DgÉÆæUÉ ¸Á®ªÁV PÉÆnÖzÉÝ£ÀÄ. CµÀÄÖ ªÉÆvÀÛ £À£Àß §½ EgÀ°®è £Á£ÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæUÉ CµÀÄÖ ºÀt PÉÆnÖzÉÝÃ£É JAzÀÄ ºÉüÀĪÀ ¤¦.1 ZÉPï£À «£ÀB ¨ÉÃgÉ zÁR¯É £À£Àß §½ E®è JAzÀgÉ ¸Àj."
23. As per say of PW.1, she deposed, on 08.08.2017 she gave Rs.3 lakhs, which she mobilized through her father, he sold the property. Her father gave the said money to the complainant and she in turn, gave it as loan to the accused. She denied the suggestion that, she had no such money and deposed falsely. The PW.1 has deposed that, in order to show that, she gave money to the accused, she had Ex.P1-cheque except that, she has no other document been clearly admitted. From the evidence of PW.1 stated above, it made clear that, the complainant had no money, but she took from her father, she collected the said money Judgment 15 C.C.18981/2017 out of sale proceedings by sold the property. In order to sold the property of father of the complainant, she not produced any document. Therefore, those documents are require to produce before this court, in order to make believe the mobilization of funds by the father of the complainant and in turn, he gave to the complainant. In that regard, for the reasons best known to the complainant, she withheld the sale transaction document, thereby she failed to prove the mobilization of funds of Rs.3 lakhs as alleged.
24. It is pertinent to note that, in the complaint she has not pleaded, on whose presence and based on which document, she gave the alleged loan to the accused on 08.08.2016. In her further cross-examination, she deposed that:
"DgÉÆæUÉ D ºÀt ¤ÃqÀĪÁUÀ £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è ¤ÃrzÀÄÝ, D ¸ÀAzÀ¨Àsð £À£Àß vÀAzÉ, £À£Àß vÀªÀÄä EzÀÝgÀÄ."
25. As per say of PW.1, she gave money to the accused, at that time, her father and brother were there. But to establish the factum of passing of consideration of Rs.3 lakhs from the hands to the accused, she not choosen to examine any one of them for the reasons best known to them. Thereby, the complainant withheld the sale transaction document as well as not examined the father Judgment 16 C.C.18981/2017 and brother, thereby, she avoided to prove the mobilization of funds and handed over to the accused.
26. It is also pertinent to note that, as said, the complainant is working as Aaya and in her further cross-examination, she deposed that:
"£À£ÀUÉ ©¦J¯ï ¥ÀrvÀgÀ aÃn ¸ÀPÁðgÀ ¤ÃrzÉ. D ºÀt £À£Àß vÀAzÉAiÀÄ SÁvÉAiÀÄ°è D¹Û ªÀiÁjzÀ ºÀt E¢ÝzÀÄÝ ,"
27. As per the say of PW.1, she was having BPL Card and after the accused asking for the loan of Rs.3 lakhs, she gone to her father and taken the money from him as he had money by sold the property. To show that, she collected money from her father, as said earlier she not choosen to produce any document nor examined him. On going through the evidence of PW.1, it discloses that, since the accused has attack on the claim of complainant, regarding her financial capacity as well as passing of Rs.3 lakhs to the accused, as she alleged and handed over the questioned cheque, it was the burden strongly lies upon the complainant to prove the very transaction. But no such effort has been made by the complainant.
28. As per say of PW.1, it clearly manifest that, she is working as Aaya and having BPL Card facility. She also admitted that, Judgment 17 C.C.18981/2017 since she had not sufficient income, the said card was issued by the government and providing the facility. It discloses, her financial incapacity to gather Rs.3 lakhs. Though, she deposed, gathered through her father, out of her proceeds, she not produced any document nor examined eye witness, her father and brother to prove her contention. Thereby, the complainant has utterly failed to prove her financial capacity as well as mobilization of funds. The accused has taken the defence that, he gave cheque to one Rachaiah, while borrowed loan of Rs.3 lakhs, despite he repaid the loan, he not returned the cheque, through various persons, he filed the several cases.
29. From the evidence of DW.1, it also made clear that, against the accused Sudhamani has filed cheque bounce case for Rs.90,000/- in C.C.No.24498/2016 and others have also filed the cheque bounce cases. The accused has not denied the same, but his probable defence that, Rachaiah got misused the cheques and filed the several cases against him by misusing the cheques including the present case. When such being the probable defence raised by the accused, it is the complainant has to demonstrate that, his probable defence is false and the accused is liable to pay the amount covered under the cheque, but she not taken pain to prove the same. The accused by way of furnishing Judgment 18 C.C.18981/2017 probable defence as well as documentary evidence at Exs.D1 and D2, has rebutted the case of the complainant and contradicts the statutory presumption. Therefore, the complainant cannot take benefit of the statutory presumptions.
30. Moreover, on going through the Ex.P1-cheque, it discloses, wherein, the signature, amount and date made in different ink and hand writing as well as the name of the complainant is found in different ink and hand writing, therefore, it is the complainant has to establish, how she possessed the cheque, other than the defence raised by the accused. But she failed to demonstrate the same. Therefore, it has to be presume that, the complainant mere because of possessed the questioned cheque through unexplained source, projected the present case, but she failed to prove the same by producing clear, convincing and clinching evidence. Therefore, it is the considered opinion of this court, mere because of amount made mentioned in the cheque, it cannot be considered as existence of legally recoverable debt. The complainant utterly failed to prove her financial capacity as well as mobilization of funds of Rs.3 lakhs and handed over to the accused. Only because of she possessed the cheque gathered through unexplained source, projected the present case is not sufficient to presume that, the amount made mentioned in the Judgment 19 C.C.18981/2017 cheque is existence of legally recoverable debt. Hence, the accused is entitled for benefit of doubt for acquittal.
31. 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 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".Judgment 20 C.C.18981/2017
32. 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.3 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.
33. 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, he is not liable to pay Ex.P1 cheque amount of Rs.3 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 he 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 his 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 Judgment 21 C.C.18981/2017 of liability of Rs.3 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Apart from that, in a decision reported in, (2015) 1 SCC 99 (K.Subramani V/s. K.Damodara Naidu). Wherein, it was pleased to held by the Hon'ble Apex court that:
"Debt, Financial and Monetary Laws - Negotiable Instruments Act, 1881 - Ss.138, 118 and 139 - Dishonour of cheque - Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant-accused - Presumption in favour of holder of cheque, hence, held, stood rebutted - Acquittal restored".
In the decision reported in AIR 2011 (NOC) 75 (KAR) (Amzad PashaV/s. H.N.Lakshmana). Wherein, it was pleased to held by the Hon'ble Apex court that:
(B) Negotiable Instruments Act (26 of 1881). S. 138
- Dishonour of cheque - Accused alleged to have taken loan from complainant - Complainant has not placed any evidence to show that he had financial capacity to lend substantial amount of Rs.4,50,000/-
- Admittedly no document evidencing the loan transaction has come into existence - Case of complainant that he had lent Rs.4,50,000/- to the respondent is highly impossible and not acceptable - None of witnesses in presence of whom loan amount Judgment 22 C.C.18981/2017 was paid by complainant examined by complaint - Adverse inference can be drawn against complainant
- Accused liable to be acquitted".
34. In the case on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show her financial capacity to lend an amount of Rs.3 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.3 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.3 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
35. 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 his 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.
Judgment 23 C.C.18981/2017
36. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the 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.3 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 her 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.
37. 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 Judgment 24 C.C.18981/2017 punishable under Section 138 of Negotiable Instruments Act.
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 7th day of June - 2019) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Prema 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 Exs.P4 & P5 : Postal receipts Ex.P6 : Postal Acknowledgment card Ex.P7 : Unclaimed R.P.A.D cover
List of Witnesses examined on behalf of the defence:
DW.1 : N.T.Lakshminarasimhaiah List of Exhibits marked on behalf of defence:
Ex.D1 : Notarized copy of Aadhaar Card
Ex.D2 : Notarized copy of Driving licence
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 25 C.C.18981/2017
07.06.2019.
Comp -
Accd -
For Judgment
Judgment 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.