Bangalore District Court
Sri. Ambrish. M. V vs Smt. Amitha Hegde on 19 October, 2016
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SMT. C.G. VISHALAKSHI, B.A.L, L.L.B.,
XIII A.C.M.M Bengaluru.
C.C. NO. 18477/2015
Dated: This the 19th day of OCTOBER - 2016
COMPLAINANT/S: Sri. Ambrish. M. V.
S/o. Sri. M.C. Venkatesh,
Aged about 36 years,
R/at. No.1787,
Rama Mandira Street,
Mangalavarapete,
Channapatna Town,
Ramangara District.
ACCUSED: Smt. Amitha Hegde,
W/o. Sri. L.S. Punith Kumar,
Aged about 27 years,
R/at. No.1250/2-A, 6th Cross,
Maruthi Badavane, Fort,
Channapatna Town,
Ramanagara District.
OFFENCE U/s.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Acquitted
*****
JUDGEMENT 2 C.C.18477/2015
JUDGEMENT
This complaint is filed against the accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 of Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The complainant and accused are known to each other. On such acquaintance the accused approached the complainant for financial assistance of Rs.5,00,000/- as hand loan, promising to repay the said amount within two months along with interest at the rate of 2% p.m. The complainant had advanced the said amount of Rs.5,00,000/- to the accused at his house on 26-10-2014. After laps of stipulated period of two months, when the complainant has approached the accused, demanding her to pay the loan amount with interest and after requests and demands, the accused had issued cheque bearing No.536406, dated: 02-01-2015 for Rs.5,20,000/- drawn on Canara Bank, Bangalore Dairy Branch, Bangalore-560029 infavour of the complainant on 02-01-2015 towards discharge of the said debt assuring about its honour on its JUDGEMENT 3 C.C.18477/2015 presentation. As per the assurance, when the complainant has presented the said cheque for encashment through his banker i.e., Karnataka Bank Ltd., Channapatna, but the said cheque was returned unpaid for the reason 'Funds Insufficient'. After receipt of information from the banker, the complainant had contacted the accused, but she did not responded properly. Hence, he got issued legal notice against the accused by RPAD on 09-01-2015, addressing to the residential address as well as working address of the accused. The notice was duly served on the accused on 12- 01-2015. Despite of the same, the accused has not complied the demands of notice. Hence, having no other go the complainant approached this court with this complaint against the accused alleging that, the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and prays to deal the accused in accordance with law.
3. On presentation of the complaint, this court has taken cognizance of the offence, Sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued JUDGEMENT 4 C.C.18477/2015 against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to her. Substance of accusation was readover and explained to the accused. Accused did not pleaded guilty and claims to be tried. Hence, the matter was posted for the evidence of the complainant.
4. In order to prove the case of the complainant, the complainant got examined himself and one witness as PW.1 & PW.2 and got marked documents as Ex.P1 to P9 and closed his side evidence. After completion of the complainant's evidence, the accused was examined under Section.313 of Cr.P.C. and her statement was recorded. To substantiate her defence and to falsify the claim of the complainant, the accused examined herself as DW.1, and got marked documents at Ex.D1 to D16 on her behalf.
5. Heard arguments. The complainant has submitted written arguments in addition to their oral arguments. JUDGEMENT 5 C.C.18477/2015
6. Upon reading the entire materials on record and on hearing the arguments, the following points that arise for my consideration:
PIONTS
1. Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence punishable under Section.138 Negotiable Instruments Act?
2. What order?
7. My answers to the above points are as follows:
Point No.1: In the Negative
Point No.2: As per the final order, for the
following.
:: REASONS ::
8. POINT NO.1: As the accused did not pleaded
guilty, the complainant has chosen to examine himself as PW.1 and one witness as PW.2 and got marked documents as Ex.P1 to P9.
JUDGEMENT 6 C.C.18477/2015
9. As per the decision reported in ILR 2008 KAR PAGE- 4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex court in AIR-2008 SC-1325 between Krishna Janardharn Bhat V/s Dattareya G. Hegde, in order to attract Sec.138 of N.I Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
10. Keeping in view the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P1 cheque bearing No.536406, dated: 02-01-2015 for Rs.5,20,000/- drawn on Canara Bank, Bangalore Dairy, Bangalore-560029. According to complainant, Ex.P1(a) is the signature of the accused. On perusal of the original JUDGEMENT 7 C.C.18477/2015 complaint, it is clear that it buttress the stand taken by the complainant herein.
(b) Ex.P2 & P3 are the cheque return memos, it shows that the above said cheque i.e., Ex.P1 was returned unpaid dated: 03-01-2015 because of the reason that 'Funds Insufficient'.
(c) It must be noted as per Clause (b) proviso to Section.138 of Negotiable Instruments Act, the complainant was required to make a demand for payment of the said amount within 30 days from the date of receipt of cheque as un-paid.
(d) Ex.P4 is copy of the legal notice dated: 09-01-2015 which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheques amount by issuing notice against her which is within 30 days.JUDGEMENT 8 C.C.18477/2015
(e) Ex.P5 & P6 are postal receipts and Ex.P7 & P8 are postal acknowledgements, which shows that the notice was sent against the accused under RPAD and through courier.
As per Clause (C) proviso to Section.138 of N.I Act, the accused is entitle 15 days time to make payment of money covered under cheque. Further, as per Sec.142 (b) of N.I Act, complaint has to be filed within 30 days from the date of which the cause of action aroses. Therefore, the complainant had filed this complaint well within time.
11. Thus, the complainant has fulfilled all the ingredients, which were required for the completion of the offence punishable under Section.138 of Negotiable Instruments Act.
12. Keeping these documents in view, let us proceed to discuss that, whether the cheque in question belongs to the accused and whether the signatures found on disputed cheques are that of the accused.
JUDGEMENT 9 C.C.18477/2015
13. On reading the entire materials on record, it is shows that the complainant has maintained this complaint alleging that the accused being known person to him through her husband has borrowed a loan of Rs.5,00,000/- on 26-10-2014, promising to repay the same with interest at the rate of 2% p.m. within two months. After stipulated time, when the complainant had approached the accused demanding her to pay the loan amount, then the accused had issued this disputed Ex.P1 cheque on 02-01-2015 in his favour towards discharge of the debt. On presentation of the said cheque for encashment by the complainant through his banker, the said cheque was bounced back unpaid for the reason 'Funds Insufficient' on 03-01-2015. Despite of issuance of demand notice against the accused and its due service on her, since the accused has not complied with demands of notice, the complainant has maintained this complaint alleging that the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act.
JUDGEMENT 10 C.C.18477/2015
14. Per-contra, on reading the line of cross-examination and the defence setout by the accused, it shows that though accused not disputed the fact that Ex.P1 cheque is belongs to her bank account and Ex.P1(a) is her signature, but it is her specific defence that she never borrowed any loan from the complainant at any point of time and she never issued this disputed cheque infavour of the complainant towards discharge of any debt or liability and there was no any monitory transaction or loan transaction in between herself and the complainant. In fact, either on the alleged date of approach for loan with the complainant i.e., on 10-10-2014 or on the date of borrowing alleged loan i.e., on 26-10-2014, she was not at all residing with her husband at her matrimonial home, as there was some family dispute in between herself and her husband and on such dispute she had left her matrimonial home on 31-05- 2014 itself and she was residing at her parent's house at Channapatna. Further, taken the defence that she had also filed M.C. petition against her husband seeking the relief of divorce. Thus, it is the contention of the accused that there was some family dispute in between her and her husband JUDGEMENT 11 C.C.18477/2015 and as such there was no occasion for her to reside together with her husband on 10-10-2014 i.e., on the date of alleged approach for loan with the complainant. Further, it is her defence that there was some quarrel in between herself and her husband on 25-10-2014 and she was assaulted by her husband and thus she by obtaining treatment at Government Hospital, Channapatna and she had been to the police station to lodge complaint against her husband. Thus, it is the contention of the accused that she never went to the house of the complainant to borrow any loan as alleged by the complainant.
15. Further, it is the defence of the accused that she was not at all present at Channapatna on the date of alleged issuance of disputed cheque i.e., on 02-01-2015. On the other hand, she had been to Anand, Amedabad to attend training program conducted by National Dairy Development Board and thus she had left Channapatna on 01-01-2015 at about 1.30 p.m. itself and she traveled to Ahmedabad by flight on that day. Thus, it is the defence of the accused that there was no occasion for her to present at Channapatna to issue this disputed cheque infavour of JUDGEMENT 12 C.C.18477/2015 the complainant. Hence, taken the defence that there was no any monitory transaction or loan transaction in between herself and the complainant and she never borrowed any loan from the complainant and she never issued this disputed cheque infavour of the complainant towards discharge of any debt. On the other hand, she had left her matrimonial home on 31-05-2014 itself along with her daughter due to some matrimonial dispute in between herself and her husband. Further, it is the defence of the accused that while coming out of her husband's house, she had left some of her signed blank cheques at the house of her husband and she had kept those cheques in order to give it to the LIC Agents towards LIC Monthly premium as she used to go to out of station on duty frequently. Taking advantage of the said circumstances, her husband who being the friend of this complainant and they by colluding each other, have filed this false complaint against her, though there exists no debt or liability in between herself and the complainant.
JUDGEMENT 13 C.C.18477/2015
16. Thus, there is no dispute so as to the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is her signature.
17. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE- 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of Negotiable Instruments Act (cheque in question) is admitted as well as proved.
18. In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption U/s.139 of N.I Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration. JUDGEMENT 14 C.C.18477/2015
19. Having admitted the fact that Ex.P1 cheque belongs to the bank account of the accused and Ex.P1(a) is her signature, presumption arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, the burden is on the accused to rebut the same with probable evidence.
20. To prove her defence, the accused not only cross- examined PW.1 and PW.2, but also adduced her evidence as DW.1 and produced documents like Ex.D1 to D16.
21. During cross-examination of PW.1, though PW.1 reiterated that when he had been to the house of the accused on 10-10-2014, the accused and her husband were there and they have asked him for hand loan of Rs.5,00,000/- by denying the suggestions of the accused counsel that on 10-10-2014 the accused was not at all residing at the house of her husband and she had deserted her husband and left her matrimonial home on 31-05-2014 itself and since then she was residing on her parent's house etc., as false. But to prove the said defence, the accused not only deposed in her evidence with regard to JUDGEMENT 15 C.C.18477/2015 the family dispute in between herself and her husband and about leaving her matrimonial home on 31-05-2014 and about her residence at her parent's house. Further she also deposed about issuance of notice against her by her husband on 01-07-2014 calling her back to the marital life.
22. To substantiate her oral evidence she produced documents like Ex.D1 notice. On reading the said Ex.D1 notice, it reflects that it was issued by one Punith Kumar S/o Late. K. Somanna, i.e., the husband of the accused through his advocate against the accused on 01-07-2014, wherein he by narrating the fact of their marital relationship between himself and the accused stating that it is the accused had left the matrimonial home on 31-05- 2014 along with their five years old daughter and residing at her parent's house. The said portion is marked at Ex.D1(a). This evidence is not falsified by the complainant by suggesting any suggestions to DW.1 during cross- examination and on the other hand, the complainant's counsel only has suggested about filing of M.C. petition by the accused against her husband. This clearly goes to show that on 31-05-2014 itself, the accused had left her JUDGEMENT 16 C.C.18477/2015 husband's house along with her child and since then she is residing at her parent's house at Channapatna.
23. Further, the accused has produced copy of the M.C. Petition filed by her against her husband seeking the relief of divorce, which is marked at Ex.D2. When such being the case, how it could be possible for the complainant to see the accused with her husband at the house of the husband of the accused on 10-10-2014 and how she could approach the complainant for loan of Rs.5,00,000/- as claimed by the complainant. This creates doubt about the very approach of the accused for loan with the complainant on 10-10-2014 at her matrimonial house as contended by the complainant.
24. Further, it is the case of the complainant that he had advanced loan of Rs.5,00,000/- infavour of the accused on 26-10-2014 stating that the accused had been to his house at about 7.30 a.m. to 8.00 a.m. itself and borrowed loan etc. But it is denied by the accused with specific defence that on that day she was at police station and she had been to police station to lodge complaint against her JUDGEMENT 17 C.C.18477/2015 husband, as there was some quarrel and assault by her husband against her on previous day i.e., on 25-10-2014 at her parent's house and as such she by obtaining treatment at Government Hospital at Channapatna had went to the police station on 26-10-2014 to lodge complaint. Thus, it is the defence of the accused that she never went to the house of the complainant and obtained any loan.
25. Though PW.1 has pleaded ignorance about these aspects during cross-examination, but to prove the said defence, the accused not only deposed her oral evidence, but in addition to the same she produced documents like OPD Card, which is marked as Ex.D3. On perusal of the said document, it shows that she had been to the Government Hospital at Channapatna, on the complaint of assault by her husband and obtained treatment.
26. Further the accused has produced copy of the complaint i.e., acknowledgement given by the police i.e., Channapatna Police as per Ex.D4. It reflects the fact that the accused had lodged complaint against her husband JUDGEMENT 18 C.C.18477/2015 Punith Kumar alleging that her husband had assaulted her on 25-10--2014 at about 6.30 p.m. and by made galata demanding her for LIC Bond and assaulted her with hands by abusing him in filthy words. On such complaint the police have given endorsement for receipt of complaint by the accused. Ex.D5 is another endorsement issued by the police which shows that in -pursuance of the complaint lodged by the accused, the police have called the husband of the accused to the police station and by advising him suitably have concluded the said complaint. These documents clearly depict the fact that as on 26-10-2014, she was at police station to lodge complaint against her husband Punith Kumar. When such being the case, the say of the complainant that she had been to their house in order to obtain loan of Rs.5,00,000/- creates doubt.
27. Though, complainant had stated that she had come to their house at about 7.30 to 8.00 in the morning itself. But as per the documents there was family dispute in between accused and her husband. This creates doubt about the say of the complainant about borrowing loan of Rs.5,00,00/- by the accused on 26-10-2014 at his house. JUDGEMENT 19 C.C.18477/2015
28. Further, it is the case of the complainant that the accused had borrowed loan of Rs.5,00,000/- from the complainant on 26-10-2014, agreeing to repay the same within two months along with interest. Hence, after such expiry of stipulated time, he had approached the accused demanding her to pay the cheque amount and after several requests and demands, the accused had issued this disputed cheque on 02-01-2015 in his favour towards discharge of the said debt and the said cheque was dishonoured on its presentation vide memo dated: 03-01- 2015. But the accused not only denied the very loan transaction in between the complainant and accused, but also denied the very issuance of this disputed cheque in favour of the complainant contending that as on the alleged date of issuance of cheque as claimed by the complainant i.e., on 02-01-2015, she was not at all in station i.e., at Channapatna. On the other hand, she had been to Anand, Ahmedabad to attend training program conducted by NDDB, Anand from 05-01-2015 to 09-01- 2015 and she returned to the Channapatna only on 11-01- 2015. Hence, it is the contention of the accused that she JUDGEMENT 20 C.C.18477/2015 never issued this disputed cheque infavour of the complainant towards discharge of debt or liability.
29. Though, PW.1 denied the suggestions posed by the accused counsel during cross-examination that the accused was not at all in station i.e., at Channapatna on 02-01-2015 in order to give the cheque, but on the other hand she was at Ahmedabad etc., as false, but to prove the said defence the accused in addition to her oral evidence produced documents like order issued by Bangalore Urban and Bangalore Rural and Ramanagara District Co- operative Milk Federation Society Ltd., dated: 18-12-2014 which is marked at Ex.D7. On perusal of the said document which shows that the accused under P.C. No.4736, was deputed for training program i.e., business appreciation program conducted by NDDB at Anand from 05-01-2015 to 09-01-2015. The accused also produced document like Ex.D8 flight ticket which shows that she traveled from Bangalore to Ahmedabad on 01-01-2015. She also produced documents like travelling allowance claim form as per Ex.D9, wherein she claimed the traveling allowance from her department for the period 01-01-2015 JUDGEMENT 21 C.C.18477/2015 to 11-01-2015 for having attended training program at Anand, Ahmedabad. Further, the document like Ex.D10 Certificate reflects the fact that the accused has participated in training program conducted by NDDB, Anand at Ahmedabad. These documents testifies the fact that the accused has traveled to Ahmedabad by flight on 01-01-2015 itself in the evening flight as per Ex.D8 flight ticket. After attending training program at Anand from 05- 01-2015 to 09-01-2015, she had returned to her home town i.e., Channapatna only on 11-01-2015. This clearly reflects the fact that the accused was not at all in Channapatna on 02-01-2015. When such being the case the say of the complainant that the accused had given Ex.P1 cheque in his favour towards discharge of debt or liability on 02-01-2015 is not acceptable one. On the other hand, doubt created in the minds of this court with regard to issuance of this disputed cheque by the accused in favour of the complainant on particular date i.e., on 02-01- 2015. Though, the complainant in his written arguments has stated that the accused had given the said cheque on 01-01-2015 itself by putting post date as 02-01-2015 etc., JUDGEMENT 22 C.C.18477/2015 but there is no such evidence or pleadings in that regard. On the other hand, as per the complaint and the complainant's chief-evidence, the alleged Ex.P1 cheque was given by the accused in his favour on 02-01-2015 itself. Thus, the attempt of the complainant to say with regard to the issuance of cheque on 01-01-2015 by putting post date as 02-01-2015 in the written arguments is not convincing one. Thus, doubt entertained in the minds of this court about issuance of this disputed cheque by the accused infavour of the complainant towards discharge of debt or liability as claimed by the complainant.
30. Further though the complainant has denied the genuinity of the documents relied by the accused to show that she was not at all in station from 01-01-2015 to 11- 01-2015 by contending that those documents are all created and concocted one etc. But he has not produced any material evidence before this court to prove the alleged concoction or creation of the such document nor elicited any material admission from the mouth of PW.1. When the accused has placed some documents to prove her defence of 'alibi' by placing some documents to show that as on the JUDGEMENT 23 C.C.18477/2015 date of alleged issuance of alleged Ex.P1 cheque, she was not at all in station i.e., at Channapatna, but on the other hand she was at Ahmedabad etc., then it is the burden of the complainant to falsify the said documentary evidence by placing any cogent evidence. If the documents relied by the accused are concocted and created one, then the complainant had every opportunity to prove such contention by examining the competent person of the department of the accused by summoning him along with documents. But no such attempt has been made by the complainant except posing some bare suggestion that the documents relied by the accused are concocted and created one. Hence, the say of the complainant that the documents relied by the accused which is marked at Ex.D7, D8 and D9 are concocted and created etc., holds no water. On the other hand, those documents corroborated to the say of the accused to show that she was not at all in station i.e., at Channapatna on 02-01-2015 and on the other hand she was at Ahmedabad. When such being the case, the say of the complainant that she had given this Ex.P1 disputed cheque in his favour towards discharge of alleged debt or JUDGEMENT 24 C.C.18477/2015 liability on 02-01-2015 etc., is not acceptable one. On the other hand, doubt created with regard to the very issuance of this disputed cheque by the accused in favour of the complainant towards discharge of alleged debt or liability.
31. Further it is the case of the complainant that after issuance of the said cheque by the accused, he has presented the said cheque for encashment through his banker Karnataka Bank, Channapatna Branch and the said cheque was returned unpaid for the reason 'Funds Insufficient' and to substantiate the said fact he has produced document like Ex.P2. But the accused has denied the fact of very issuance of cheque infavour of the complainant towards discharge of any debt or liability by taking specific defence that there was no monitory transaction or loan transaction in between herself and the complainant and she never borrowed any loan from the complainant and she never issued this disputed cheque. On the other hand, due to some family dispute in between herself and her husband, she had left her husband's house on 31-05-2014 itself along with her daughter and was residing at her parent's house at Channapatna and at the JUDGEMENT 25 C.C.18477/2015 time of leaving her husband's house, she had left some signed blank cheques and she had kept those cheques in order to give it to LIC Agents towards payment of monthly premium as she being Extension Officer, used to go out of station on duty frequently. Hence, soon after returning to her parent's house she had given necessary 'stop payment' instruction to the bank authorities requesting them not to honour the cheques by mentioning the cheque numbers stating that those cheques were misplaced. To substantiate the said defence she produced document like Ex.D6. On reading the said document it shows that the accused had given such 'stop payment' instruction letter to the Manager of Canara Bank, Dairy Circle Branch, Bangalore-29 on 28- 11-2014 itself. Though the complainant during the course of cross-examination of PW.1 elicited some evidence that as per her evidence she had kept her signed blank cheques at the house of her husband while coming out of her husband's house due to family dispute, but she had given 'stop payment' instructions to the bank authorities by stating that she had lost her cheque book etc. With this the complainant made an attempt to say that the accused had JUDGEMENT 26 C.C.18477/2015 not left any signed blank cheques as contended by her and on the other hand, she being educated lady, cannot keep her signed cheques in blank without there being any transactions and hence contended that though accused only had given Ex.P1 cheque in favour of the complainant by filling it duly towards discharge debt or liability, but she by colluding with her husband has created document like Ex.D6 letter, just to over come the situation. But as aforesaid discussion, the accused has proved the fact that there was some family dispute in between herself and her husband and she had left the Matrimonial home on 31-05- 2014 itself. When such being the case, the say of the complainant that the accused by colluding with her husband has created document like Ex.D6 letter just to over come the situation is not acceptable one.
32. On the other hand, the accused by believing her husband might have kept her signed blank cheques in the home to meet the immediate circumstances when they were in cordial terms and this circumstance cannot be brushed aside. But however soon after she returned to her parent's house by deserting her husband, she had given JUDGEMENT 27 C.C.18477/2015 'stop payment' instruction letter to the Bank authorities requesting them not to honour the cheques anticipating the misuse of those cheques. No doubt there is some discrepancy in the reason assigned for her to give 'stop payment' instructions, but whatever may be the reason, the accused had given such 'stop payment' instructions to the Bank authorities requesting them not to honour the cheques by mentioning the cheques number including the disputed cheque on 28-11-2014 itself i.e., more or less 30 days prior to the alleged date of issuance of cheque as claimed by the complainant. When such being the case, how the accused could anticipate of giving the said disputed cheque only in future date i.e., on 02-01-2015 infavour of the complainant. This creates doubt with regard to the issuance of the disputed cheque on 02-01-2015 in respect to the alleged loan transaction as claimed by the complainant.
33. Further at one stretch the complainant suspected the genuinity of Ex.D6 letter by suggesting that the alleged cheque was not returned for the reason stop payment, but it was returned for the reason 'Insufficient Funds' etc., but JUDGEMENT 28 C.C.18477/2015 Ex.D6 letter is contained the stamp and signature of the bank authorities and which clearly testifies the fact of giving such 'stop payment' instruction by the accused on 28-11-2014 requesting them not to honour the cheques mentioned in that letter in case of their presentation. Despite of the same, the bank authorities had given Ex.P2 and P3 endorsements by mentioning the reason for dishonour of Ex.P1 cheque as 'Insufficient Funds'. Mere the fact that the accused had not taken any steps against the bank authorities for giving such false endorsements, it cannot be a ground to suspect the very genuinity of Ex.D6 letter, when it bares the seal and signature of the competent authorities. If the complainant suspects that the said document is concocted and created one etc., then he had every opportunity to prove the same by summoning necessary documents from the bank authorities by examining any competent authority of the bank before this court, but no such attempt made by the complainant in this regard except putting some oral suggestions. Hence, the attempt made by the complainant to falsify Ex.D6 letter is concocted and created one is not acceptable one. JUDGEMENT 29 C.C.18477/2015
34. Though at one stretch, the counsel for the complainant during arguments, argued by drawing attention of the court to the recital at Ex.D6 letter stated that the alleged cheque book was not at all issued by the Bank authorities etc. But if that circumstance was true, then also the complaint is not maintainable, as it is the burden of the complainant to prove the fact that the disputed Negotiable Instrument allegedly given by the accused towards discharge of debt or liability from the account maintained by her in order to get attract Section.138 of Negotiable Instruments Act. If the alleged cheque book was not given infavour of the accused, then it indirectly shows the cheque was not drawn from the account of the accused. Under such circumstances also the complaint under Section.138 of Negotiable Instruments Act is not maintainable. Even otherwise, the disputed cheque was not returned on that ground. Hence, the attempt made by the complainant in that regard is not convincing one.
35. Further the accused had attacked the case of the complainant by questioning the monitory capacity of the JUDGEMENT 30 C.C.18477/2015 complainant in order to advance such quantum of loan of Rs.5,00,000/- in her favour. To substantiate the said defence, the add relied on cross-examination of PW.1. During cross-examination of PW.1 though complainant had explained the source of income and arrangement of the funds in order to advance such quantum of loan infavour of the accused, stating that, he is looking after the liquor business standing in his father's name and his parents had given funds to him in order to lend loan infavour of the accused etc., and to prove the said fact he has examined his father before this court as PW.2. But during cross- examination of PW.2, the accused elicited the evidence from the mouth of PW.2 that he has not given any amount personally infavour of the complainant in order to lend loan infavour of the complainant. On the other hand, he has stated that his son looking after his liquor business, he had given the loan etc. This contradictory evidence of PW.1 and PW.2 creates doubt with regard to the source of funds in order to advance such huge amount of Rs.5,00,000/- in favour of the accused. Thus, doubt created with regard to JUDGEMENT 31 C.C.18477/2015 the very loan transaction in between the complainant and accused.
36. These circumstances are sufficient to rebut the presumption, which arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, onus shifted on the shoulder of the complainant to prove the fact that there was existence of debt or liability in between himself and the accused by proving the fact of advancement of alleged loan of Rs.5,00,000/- infavour of the complainant by proving his monitory capacity and about issuance of this disputed cheque by the accused in his favour towards discharge of debt beyond reasonable doubt. But as aforesaid discussion, he has not placed any iota of evidence to substantiate the fact either about approach of the accused with him seeking financial assistance of Rs.5,00,000/- on 10-10-2014 or about advancement of alleged loan of Rs.5,00,000/- infavour of the accused on 26-10-2014 or about issuance of this disputed cheque by the accused in his favour towards discharge of the alleged cheque on 02-01-2015. Hence, with all these reasons, I am of the opinion that the JUDGEMENT 32 C.C.18477/2015 complainant utterly failed to prove the guilt of the accused beyond reasonable doubt for the offence punishable under Section.138 of Negotiable Instruments Act. Hence, I answered Point No.1 in the Negative.
37. POINT NO.2: In view of my discussions on Point No.1 as above, I proceed to pass the following:
ORDER Acting under Section. 255(2) Cr.P.C., the accused is acquitted for the offence punishable under Section.138 of Negotiable Instruments Act.
The accused is set at liberty and his bail bond stands cancelled.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 19th day of October-2016) (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.JUDGEMENT 33 C.C.18477/2015
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Ambarish. M.V. PW.2 : Venkatesh
Documents marked on behalf of the complainant:
Ex.P1 : Cheque Ex.P2&3 : Bank endorsements Ex.P4 : Letter Ex.P5 & 6 : Postal Receipts Ex.P7&8 : Postal acknowledgements Ex.P9 : Complaint
Witnesses examined on behalf of the accused:
DW.1 : Amitha Hegde Documents marked on behalf of the accused:
Ex.D1 : Notice
Ex.D2 : M.C. Petition No.42/2014
Ex.D3 : OPD Card
Ex.D4 : Acknowledgement
Ex.D5 : Endorsement
Ex.D6 : Letter
Ex.D7 : Order passed by milk co-operative society
Ex.D8 : Flight Ticket
Ex.D9 : Travelling Allowance Claim Form
Ex.D10 : Certificate
Ex.D11 : Letter
Ex.D12 : Stop payment instructions
Ex.D13 : Acknowledgement
Ex.D14 : Reply Notice
Ex.D15 : Postal receipt
Ex.D16 : Postal acknowledgement
(C.G. Vishalakshi)
XIII A.C.M.M., Bengaluru.