Bangalore District Court
Mrs.Kavitha.A @ Kanchana.A vs Smt.M.Kalavathi on 9 November, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 9th day of November - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.1112/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Mrs.Kavitha.A @ Kanchana.A,
D/o.Ashwath Narayana,
Aged about 36 years,
R/at No.302, A Block,
Gopalan Residency Telecom Layout,
N.R.Vijayanagar, Pipeline,
Bengaluru-23.
(Rep. by Sri.Venkataram, Adv.)
V/S
Accused : Smt.M.Kalavathi,
W/o.G.V.Shankarappa,
R/at. No.76, 10th Main Road,
Shivanagar, Rajajinagar,
Bengaluru-10.
Also working at:
Smt.M.Kalavathi,
W/o.G.V.Shankarappa,
Government Higher Primary School,
Arehalli, Bengaluru South Zone,
Bengaluru.
(Rep.by Sri.V.Seenappa, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.No.1112/2018
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 09.11.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 20.11.2017 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.5 lakhs.
2. In a nut shell, the case of the complainant is:
The accused was the friend of complainant and known to her from past several years. In that acquaintance, she borrowed sum of Rs.5 lakhs from the complainant to meet her urgent family needs and attend the medical expenses of her son. The said amount was borrowed in 2 occasions i.e, on 01.09.2015 sum of Rs.2 lakhs which was paid through cheque and on 10.09.2015 sum of Rs.3 lakhs which was paid in cash. While receiving the said cash of Rs.3 lakhs, the accused had executed On demand promissory note and consideration receipt in her her favour and promised to repay the said loan amount within 2 years and in pursuance of the same, she had issued and delivered a post Judgment 3 C.C.No.1112/2018 dated cheque bearing No.823809 dated:04.09.2017 for sum of Rs.5 lakhs drawn on Syndicate Bank, Jayanagar 8th Block Branch, Bengaluru, towards discharge of her liability and promised to maintain sufficient funds in her account.
The complainant has averred that, at the instructions of the accused, she presented the said cheque cheque for encashment through her banker viz., ICICI Bank, RPC Layout Branch, Bengaluru. But the same came to be returned unpaid with an endorsement "Funds Insufficient" dated:06.09.2017. Thereafter, she gave legal notice to the accused on 03.10.2017 through her counsel by R.P.A.D. On receipt of the same, the accused gave untenable reply, but not paid the amount covered under the cheque. 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.1112/2018
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, she herself choosen to examined as PW.1 and got marked Exs.P1 to P12. 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 as DW.1 and got marked Exs.D1 to D3 and also subjected for cross- examination by the advocate for the complainant.
7. I have heard the arguments of both side counsels. The accused 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:
Judgment 5 C.C.No.1112/2018
1) Whether the complainant proves beyond the reasonable doubt that, she paid sum of Rs.5,00,000/- on 28.09.2016 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.823809, dated:04.09.2017 for sum of Rs.5 lakhs drawn on Syndicate Bank, Banashankari Extn. Jayanagar 8th Block, 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
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 her case choosen to examined herself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P12, they are:
Judgment 6 C.C.No.1112/2018
a) Ex.P1 is the cheque bearing No.823809 issued by the accused for sum of Rs.5 lakhs dated:04.09.2017, drawn on Syndicate Bank, Banashankari Extn. Jayanagar 8th Block, Bengaluru .
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:07.09.2017.
d) Ex.P3 is the Legal Notice dated:03.10.2017.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the reply notice dated:17.10.2017 issued by accused through her counsel to the complainant counsel.
g) Ex.P6 is the complaint dated:14.11.2017 lodged by the complainant counsel before the Post Master, regarding report of delivery of notice sent by RPAD.
h) Ex.P7 is the settled reply.
i) Exs.P8 & P9 are the On demand promissory note and consideration receipt dated:10.09.2015 executed by accused in favour of complainant.
j) Exs.P8(a) and P9(a) are the signatures of accused.
k) Ex.P10 is the private complaint.
l) Ex.P10(a) is the signature of complainant.
m) Ex.P10 is the certified copy of entrepreneurs memorandum part-1 acknowledgment issued by Joint Director, District Industries Center in favour of complainant herein.
n) Ex.P11 is the ITR-V pertaining to the complainant herein for the assessment year 2016-17 and
o) Ex.P12 is the schedule-01 - proprietor capital account for the assessment year 2015-16 pertaining to Kanchana Group of companies.
Judgment 7 C.C.No.1112/2018
11. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of her case the complainant through her counsel has produced the citations and relied upon same, they are;
a) 2012 (1) DCR 189
b) 2015(3) AKR 147
c) 2004 (3) KCCR 1816
d) 2011 (1) DCR 588
e) 2017(1) DCR 595
f) Crl.A.No.1545/2019
g) Crl.A.No.508/2019
h) ILR 2019 KAR 493
i) 2018(1) KAR LR 490 (SC)
12. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed her 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 and gave her statement that:
"ನನನ ಪರರದಯಯದ ರರರ2 ಲಕ ಸಲವನನ ನ ಖಲ ಸಹ ಮಡದ ಚಕ ಹಗರ ಖಲ ಸಹ ಮಡದ ಆಯಡಮಮಯಡ ನರನಟನನ ನ ಟ ಪಡದದನ. ಆ ಸಲ ಮರಳಸದದರರ, ಸದರ ದಖಲಗಳನನ ಬರದನಕರಟನ ನ Judgment 8 C.C.No.1112/2018 ಮರಳಸದ ಹಚಚನ ಮತತ ಬರದನ ಸನಳನ ಳ ಪಪಕರಣ ದಖಲಸದರ. ಚಕಕನ ಮತತ ನನಡಲನ ಭದಮಳಲಲ."
13. In order to prove the defence of the accused, the accused herself choosen to entered into witness box and examined as DW.1 on oath and filed affidavit evidence.
14. No doubt, in this case, the accused was entered into witness box and filed affidavit evidence. The filing of affidavit by the accused in lieu of her probable defence is not opposed by the complainant. Mere because of she not sought permission under Sections 315 and 316 of Cr.P.C., it does not a ground to out-rate reject the probable defence set out by the accused. Mere because Section 145(1) of Negotiable Instruments Act does not expressly permit the accused to filed affidavit evidence, it does not mean that, the court cannot allow the accused to give her evidence on affidavit. By applying the same analogy, unless there is just and reasonable ground to refuse such permission. There is no express bar on accused to give evidence on affidavit either in the accused or in the court.
In a decision reported in 2006 SCC online, Bombay 703, in a case between Peacock Industries Limited Vidhyadhar and others V/s. Dudhrani Finance Limited Bombay and another . Ratio layout Judgment 9 C.C.No.1112/2018 therein was partly firm in a decision reported in (2010) 3 SCC 83, in a case between Mandovi Co-operative Society Ltd., V/s. Nimesh B Takore. Wherein, by citing the decisions reported in KSL and Industries Ltd., case, it was pleased to observed that, the observation made by the Division Bench in KSL and Industries Ltd., case, clearly indicate that, even the accused should be given option to lead her evidence on affidavit. But such request should be made in writing as providing for Section 315(1) of Cr.P.C. Wherein, lordship was pleased observed that, fine no justified reason to refuse permission to the accused to give her evidence on affidavit subject to the provisions contained in Sections 315 and 316 of Cr.P.C.
That apart, in a judgment passed by the Hon'ble High Court of Karnataka dated:13th Day of February 2020 in a case between Jagadeesh Hiremath and R. Venkatesh in Criminal Appeal No.907 of 2017 A/W Criminal Appeal No.908 of 2017 is pleased to observed that, in view of the orders of this court in Criminal Petition No.9331/2017 C/w Criminal Petition No.9332/2017 dated:
02.07.2019, wherein following the law laid down by the Hon'ble Supreme Court in Indo International Ltd., & Another V/s. State Of Maharasthtra & Another, 2005 Crl.L.J.208, it is held that, " The court dealing with a complaint under Section 138 of the said Act of 1881 had Judgment 10 C.C.No.1112/2018 an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence witnesses, if any on affidavit"
15. In the affidavit evidence of the accused, she has contended that, she has not borrowed loan of Rs.5 lakhs from the complainant as she alleged and she is not liable to pay the amount covered under the cheque. The accused has specifically contending that, the cheque in question was issued to Kanchana Group of Company at the time of borrowing of loan in the month of September, 2015 for the tune of Rs.2 lakhs only. At the time of borrowing the said loan from Kanchana Group of Company, it took her blank cheque for the purpose of security. In the month of April, 2016, she had cleared the said hand loan to the said Kanchana Group of Company, after repaid the same, she had requested it to return the said blank cheque, the complainant being a head of the company told her that, it was misplaced and assured that, if it trace out then would return to the accused, but she has not returned her cheque under the one or other reasons and postponed to return the cheque. After receipt of legal notice, she came to know that, complainant had misused her cheque by suppressing true facts made false allegations and filed the false Judgment 11 C.C.No.1112/2018 case. Hence, she is not liable to pay the amount covered under the cheque. Hence, she prayed for dismiss the present case.
16. Apart from the accused also choosen to produced the documents at Exs.D1 to D3. They are:
a) Ex.D1 is the reply notice dated:17.10.2017 issued by accused through her counsel to the complainant counsel.
b) Ex.D2 is the postal receipt and
c) Ex.D3 is the postal acknowledgment card.
The DW.1 was subjected to the cross-examination by the advocate for the complainant. Apart from lead defence evidence, the DW.1 through her counsel has produced the citations and relied upon same. They are:
a) (2009) 2 SCC 513
b) (2014) 2 SCC 236
c) (2019) SCC 418
17. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
18. 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 Judgment 12 C.C.No.1112/2018 materials it discloses, the complainant has brought the present case against the accused based on the questioned cheque at Ex.P1. Therefore, it is 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 cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheque was drawn for discharge of liability of drawer, it is 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 that, it is the initial onus on the accused to prove his case 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 Judgment 13 C.C.No.1112/2018 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 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 Judgment 14 C.C.No.1112/2018 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 cheques 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.
19. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, 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 materials brought on record by parties, but also by reference to the circumstances upon which she relies.
20. On going through the above authorities as well as dictums, it made clear that, it is the initial burden on the accused to prove her probable defence in order to rebut the statutory presumption as well as the case put forth by the complainant. On going through the defence taken by the accused it made clear that, she Judgment 15 C.C.No.1112/2018 has categorically admitted the borrowing of loan of Rs.2 lakhs from Kanchana Group of Company during the month of September, 2015 on the guarantee of her signed blank cheque for the purpose of security. She had cleared the said loan to the complainant during the month of April, 2016. Despite that, the complainant being head of the Kanchana Group of Company had not returned the said signed blank cheque and got misused the same. Under the averments and allegations made in the affidavit evidence of the accused, she subjected for cross-examination. By way of production of Exs.D1 to D3, she made clear that, immediately after receipt of legal notice from the complainant after dishonour of cheque at Ex.P1 for the tune of Rs.5 lakhs, immediately, as per Ex.D1 she got issued reply and as per Ex.D3 it was served on complainant. Therefore, it made clear that, the accused from the inception till the fag end had resisted the claim put forth by the complainant. During the course of cross of PW.1, she categorically deposed that, since 13 years she was working as teacher in a school. She admitted her signature found in Ex.P1-cheque as well as On demand promissory note and consideration receipt produced at Exs.P8 and P9. More categorically she withstood in her cross-examination that:
Judgment 16 C.C.No.1112/2018
"ಏಪಪಲ-2016 ರಯದನ ಪರರದಯಯದ ಪಡದಯತ ರರರ2 ಲಕವನನ
ನ
ನನನ ನನನ ಸಯಬಳವಗನವ ಬಮಯಕನಯದ ಸಲವನನ
ನ ಪಡದನಪರರದಗ
ನಗದಗ ಕರಟನ
ಟ ಮರಳಸದನ. ಆಕಯ ಸರಚನಯ ಮನರಗ ನಗದಗ
ಕರಟಟದನ. ನನನ ಆಕಯ ಬಮಯಕಕನ ಖತಗ ಹಣ ಹಕನವದಗ
ಹನಳದಗ, ಆಕ ನಗದಗಯನ ಬನಕಯದನ ತಳಸದ ಮನರಗ ಕರಟಟರನತತನನ. ಆಕಗ ಹಣ ಪವತ ಮಡದ ಬಗಗ ನನನಲ ದಖಲ ಇಲಲ."
21. On going through the said testimony of DW.1, she has reasserted in her cross-examination that, whatever the loan she borrowed from the complainant during September, 2015, as she asserted in her chief-examination, in the cross-examination she clarified that, it was repaid by her to the complainant during April, 2016 by way of borrowing of loan from bank. Even she more specified that, at the instructions of the complainant, she repaid the said money in cash. When she told to the complainant that, the said money would be deposited in the bank account of the complainant, then she told her that, she should be pay through cash, accordingly, she got paid through cash in that regard, she had no document. Thereby, the DW.1 withstood her contention by contending that, whatever the loan of Rs.2 lakhs she got received from the complainant concern Kanchana Group of Company, she had repaid the same. She more categorically deposed that, she borrowed loan from the complainant, she being a head of the Judgment 17 C.C.No.1112/2018 Kanchana Group of Company not personal loan of complainant and accordingly, at her instructions, she got repaid through the account of Kanchana Group of Company. The DW.1 withstood her contention, when she deposed, alleged loan was borrowed from Kanchana Group of Company and repaid to the same definitely, the relevant document maintained in the said company is vital piece of document, it is the complainant being claimed as proprietor, she ought to produce the same. Thereby, rebut the probable defence taken by the accused, but for the reasons better known to her, she did not make such any effort. It is not the case of complainant that, she is unconcerned to Kanchana Group of Company either to believe the probable defence of the accused as to only borrowed loan of Rs.2 lakhs from the Kanchana Group of Company and got repaid to it definitely, necessary loan application, loan allotment letter and transfer of money to the account of accused must have to be maintained in the said company coupled with discloses, whatever the security document got executed from the borrower in communication to the Kanchana Group of Company. The non production of the said vital piece of document, the complainant being a proprietor is fatal to the case of complainant and non production of those documents leads to draw the adverse inference against the Judgment 18 C.C.No.1112/2018 complainant, since ad had paid the said amount to Kanchana Group of Company, therefore, in order to avoid reveal truth, she not produced the same.
22. The DW.1 in her cross-examination has admitted her signature as found in Exs.P8 and P9 which are none other than On demand promissory note and consideration receipt. She deposed, for non return of questioned cheque and Exs.P8 and P9, after clearance of loan, she had not initiated any action against the complainant and she gave explanation, why she did so, since the complainant was assured to return the same, she has not choosen to do so.
23. No doubt, in the further cross of DW.1, the suggestions were made to her by the advocate for the complainant that, for obtaining loan from Kanchana Group of Company, she had no document. Therefore, it was suggested by the complainant that, since she has not borrowed loan from the said Kanchana Group of Company, is been denied by her. The DW.1 apart from denying the said suggestion, as volunteers that, the complainant from her Kanchana Group of Company only provide the loan to the accused. She has not disputed the borrowing of loan of Rs.2 lakhs by way of cheque on 01.09.2015 to her bank account. But Judgment 19 C.C.No.1112/2018 she categorically denied the allegation made by the complainant as to lent cash of Rs.3 lakhs on 10.09.2015 to the accused. More categorically she denies that, for repayment of loan of Rs.5 lakhs, the accused got issued questioned cheque at Ex.P1 and got executed On demand promissory note and consideration receipt as per Exs.P8 and P9 in favour of complainant. More categorically the DW.1 by denying the said suggestion has deposed that:
"ಕಯಚನ ಗರ ಪ ಪ ಆಫ ಕಯಪನಯಯದ ನನನ ಸಲ ಪಡದ ಬಗಗ ದಖಲಗಳನ ಇಲಲ. ನನನ ಸದರ ಸಯಸಸಯಯದ ಸಲ ಪಡದದದಲಲ.
ಪರರದಯಯದ ಸಲ ಪಡದದ ಎಯದರ ಸರಯಲಲ. ಸಕಯನ
ಪರರದ ಸದರ ಸಯಸಸಯ ಮನಖಯತರ ನನಗ ಸಲ ಕರಡಸದದರನ ಎಯದನ
ನನಡಯನತತರ. ದನಯಕರ01.09.2015 ರಯದನ ಪರರದ ರರರ2
ಲಕವನನ
ನ ನನನ ಬಮಯಕನ ಖತಗ ವರರಯರಸದರ.
ದನಯಕರ10.09.2015 ರಯದನ ಆಕ ಪನರ ರರರ3 ಲಕವನನ
ನ ನಗದಗ ಸಲ
ನನಡದರಯದರ ಸರಯಲಲ. ಆ ರನತ ಪಡದ ರರರ5 ಲಕದ ತನರನವಳರಗ ನ ನನನ ಪರರದಗ ಕರಟಟದ ಎಯದರ ಸರಯಲಲ."
ನಪ-1 ರ ಚಕಕನನ
24. The DW.1 once again has reasserted that, she denied the execution of On demand promissory note and consideration receipt in respect of the loan of Rs.5 lakhs, but volunteers that, those blank documents got obtained her signature by the complainant. By deposing so, the accused has made attack on Judgment 20 C.C.No.1112/2018 the claim of complainant and denied the alleged lent of loan of Rs.3 lakhs by way of cash on 10.09.2015. Even the DW.1 has denied that, complainant had lent personal loan of Rs.2 lakhs on 01.09.2015, but categorically stated, complainant being a proprietor/head of Kanchana Group of Company, lent only Rs.2 lakhs on 01.09.2015 by way of cheque transferred to her bank account and the said company got obtained her signed blank cheque, signed blank On demand promissory note and consideration receipt, despite, she got cleared the said loan to the said Kanchana Group of Company, the complainant without returned her cheque and other documents filed the false case. Therefore, from the evidence of DW.1 it revealed that, as she projected her probable defence she only obtained loan for the tune of Rs.2 lakhs from Kanchana Group of Company on the security of Exs.P1, P8 and P9 signed blank documents and she got cleared the same to the said company. Therefore, it is the complainant being a proprietor of the said Kanchana Group of Company ought to produce necessary documents, books of register, account register extract or loan application and other particulars obtained from the necessary borrower pertaining to the period dated:01.09.2015 as well as 10.09.2015. The non production of the said document, it creates strong doubtful Judgment 21 C.C.No.1112/2018 circumstances against the genuineness of transaction alleged to be conduct by the complainant personally or through her finance company.
25. That apart, the accused choosen to cross-examination the PW.1, wherein, got obtained several contradictions, omissions and development in the evidence against her own pleading. During the course of cross of PW.1, she has deposed that:
"ಆರರನಪಗ ದರರನಲ ಕಣಸದ ಸಲ ನನಡನವಗ, ವದಮರಣ ಇರಲಲಲ.
ಆರರನಪಗ ನನನ ಆನ ಲಲನ ಮನಖಯತರ ರರರ2 ಲಕ
ದ , ರರರ3 ಲಕ ನಗದನನ
ದನಯಕರ01.09.2015 ರಯದನ ವರರಯಸದನ ನ
ದನಯಕರ10.09.2015 ರಯದನ ನನನ ಮನಯಲ ಆರರನಪಗ ಕರಟಟದನನ. ಆ ಸಯದರರ, ನಮಮ ಚಲಕ, ನನನ ಸನನಹತ ಮಯಜನಳ ಇದದರನ. ನನನ ಫಲನನನ ಸಲ ಮಡನವಗ, ಆರರನಪಯಯದ ಅರರ ಪಡದನ, ದಖಲಗಳ ಪಪಕರ ಸಲ ನನಡಬನಕನ ಎಯದರ ಸರ. ಸಕ ಸಸತರ ಮನಯದನವರದನ, ಆರರನಪಗ ಫಲನನನ ಮನಖತರ ಸಲ ನನಡಲಲ ಆಕಯ ಮಗನಗ ಹನಷರಲಲ ಎಯದನ ನನನಯದ ಸಲ ಕನಳದ ಕರಣ, ವಲಯಕತಕ ಸಲವನನ ನ ಆಕಗ ಕರಟಟದ."
26. On going through the said testimony of PW.1, it revealed from the evidence of PW.1 that, at the time of lent of loan, Smt.Vidyarani, who introduced the accused to the complainant was not present. The PW.1 has deposed, admittedly she lent Rs.2 lakhs on 01.09.2015 through on-line to the account of Judgment 22 C.C.No.1112/2018 accused. The sent of said money to the account of accused on 01.09.2015 is not been disputed by the accused, but she categorically denied it was not lent by the complainant in personal account, but it was lent by her Kanchana Group of Company, in that regard, complainant needs to produce document as she is the custodian of the documents, but no such document is been placed by her.
27. The above said testimony also discloses, PW.1 has deposed that, on 10.09.2015 she gave Rs.3 lakhs cash to the accused. By that time, her driver, friend Manjula were present. Though she deposed, who was her driver, why she not chosen to examine those driver and her friend Manjula, those are material eye witnesses to the alleged lent of Rs.3 lakhs is not been explained. Definitely, those other 2 eye witnesses are material to the present case requires to be examine by the PW.1, but for the reasons better known to her, despite, accused harping on the claim of complainant, she not choosen to examine them, is also one of the fatal to the case of complainant.
28. The PW.1 in the above testimony has deposed that, while lent loan from her finance, she needs to obtain loan application from accused, as per record only she lent loan to the accused.
Judgment 23 C.C.No.1112/2018 Though she admitted as such, she volunteers that, she not lent loan to the accused through her finance, but when she told her that, her son was not keeping well, therefore, she lent money to her as personal loan. From the said evidence of PW.1, it clearly revel that, normally when she lent loan from her finance, she used to collect loan application and by maintained necessary loan documents normally, would lent loan to the borrower. Though, she deposed she lent personal loan to the accused, the accused has not accepted the same, but she go on saying that, accused only borrowed loan from Kanchana Group of Company not from the complainant. Therefore, at least to discard the contention of the accused, the complainant being a proprietor had no impediment to produce her documents, but withheld the said piece of documents is one of the strong doubtful circumstances arose to disbelieve the contention of the complainant and probablize the defence of the accused. Whether the complainant has lent personal loan or not? is to be seen as she deposed. Though she deposed, she lent personal loan, in the further cross- examination she deposed that:
"ನನನ ಆರರನಪಗ ರರರ2 ಲಕ ಹಣವನನ
ನ ಕಯಪನ ಖತಯಯದ
ಆರ.ಟ.ರ.ಎಸ. ಮನಖಯತರ ಮಡದ , ಸದರ ಕಯಪನಯಲ ಪಯಯಗ
Judgment 24 C.C.No.1112/2018
ಗಸಟ, ಟಪವಲನ, ಫಲನನನ ವಮವಹರ ಕರಡ ಮಡನತತನನ. ನಮಮ ಹಣಕಸನ ಸಯಸಸ ನರನಯದಣರದ ಬಗಗ ದಖಲ ಹಜರನಪಡಸಲಲ."
29. The PW.1 earlier to her statement she stated that, she remitted Rs.2 lakhs to the accused account through operating her Kanchana Group of Company account and by way of RTGS sent money. The said testimony made clear that, the complainant had not paid money from her personal account or her own fund,but she paid amount from the account of Kanchana Group of Company. Therefore, it made clear that, the said money is not of the personal money of the complainant as she deposed, but it was the money of her Kanchana Group of Company, wherein, in accordance with the license only by obtaining necessary loan application, loan document only needs to do money lending business. But in order to avoid the production of document from her Kanchana Group of Company, she diluted her contention that, she lent money to the accused through her personal account is created doubt. The said testimony also reveal that, apart from she did finance business in Kanchana Group of Company, she used to do paying guest, travels, finance business. Therefore, she needs to produce necessary document either to prove her contention or to disprove the probable defence of the accused, but for the reasons better known to her, she not choosen to do so.
Judgment 25 C.C.No.1112/2018
30. That apart, in her further cross-examination, the accused had obtained certain contradictions:
"ರರರ2 ಲಕ ಆರರನಪಗ ಫಲನನನ ಹಣ ನನಡದ ಬಗಗ ಸಯಸಸಯ ಆದಯ ತರಗಯಲ ಕಣಸರನತತದ. ಸಕ ಸಸತರ ಮನಯದನವರದನ, ನನನ ಪಪಪಪಪಟರ ಆದ ಕರಣ, ಕಯಪನ ಮತನತ ನನನ ವಲಯಕತಕವಗ, ಒಯದನ ಆದಯ ತರಗ ಪವತಸದನ . ಆರರನಪಗ ರರರ5 ಲಕ ನನಡದ ಬಗಗ ನನನ ಬನಕ ಆಫ ಅಕಯಟನ ಹಗರ ಆದಯ ತರಗ ಪವತಯಲ ತರನರಸದನ. ಆ ನ ಈ ಪಪಕರಣದಲ ಹಜರನಪಡಸಲನ ತರಯದರ ಇಲಲ."
ದಖಲಗಳನನ
31. On going through the evidence of PW.1, she categorically deposed, in order to show that, she lent money of Rs.2 lakhs to the accused, it has been reflected in her income tax returns, wherein discloses, finance money were paid to the accused. Even she volunteers and deposed that, she being a proprietor, on behalf of company and her personal she had submitted only one income tax returns. By deposing so, the PW.1 has projected that, she has not submitted personal income tax returns, including her company, she submitted returns together. In that regard, she choosen to produced her income tax returns as per Exs.P11 and P12. Though, she deposed that, she is the proprietor of Kanchana Group of Company, on close perusal of the production of Exs.P11 and P12 at the later stage, it reveals, the assessee name Ashwathnarayana Kanchana. Wherein, the name of Judgment 26 C.C.No.1112/2018 complainant Smt.Kavitha @ Kanchana.A is not been seen. Then how, the assessment submitted as per Exs.P11 and P12 in the name of Ashwathnarayana Kanchana is relevant to the case of complainant, she has not been satisfactorily explained.
32. On going through the Ex.P11 wherein, attached statement of income list pertaining to Kanchana.A, father name mentioned as Ramaiah Ashwathnarayana. On going through the same, it does not revel the name of complainant as Kavitha. Then how the same is connected to the complainant, she not explained. That apart, she deposed that, regarding lent of loan to accused, she made mentioned in income tax returns pertaining to her as well as her Kanchana Group of Company. On going through the Ex.P12 the attached document pertaining to Kanchana Group of Company, for the financial year of 2015-2016. Wherein, mentioned in schedule - 04 current assets, loans and advances, cash in hand, cash at the bank accounts as per details, Narasimha Murthy, TDS Receivable and mentioned the name of accused as Kalavathi.M. Against the name of Kalavathi.M, it discloses, Rs.5 lakhs. In order to show that, the said Rs.5 lakhs amount lent by the Kanchana Group of Company or the personal account of the complainant, she has not given satisfactory explanation. The said statement discloses the name of Kanchana Judgment 27 C.C.No.1112/2018 Group of Company, and Ashwathnarayana Kanchana. In order to establish as she deposed, she is the proprietor and got paid money either from her personal account or from the account of company, she not choosen to produce any other documents.
33. On going through the Exs.P11 and P12 the income tax returns does not reveal the name of complainant. Therefore, in order to relied upon Exs.P11 and P12, she must produce necessary document, how she nexus with Kanchana Group of Company. The said document does not revel the name of complainant, therefore, mere because of the Exs.P11 and P12 submitted by the concern person of Kanchana Group of Company, and made self declaration mentioned the name of the accused as advancement of loan of Rs.5 lakhs would not supported the claim of complainant. Therefore, the Exs.P11 and P12 noway come to the support of claim of complainant. But the said document would supports the probable defence of the accused that, she borrowed loan from Kanchana Group of Company. Therefore, it is the complainant needs to produce necessary particulars with regard to her finance company.
34. The above said testimony at least last sentence PW.1 has categorically admitted that, regarding lent of loan of Rs.5 lakhs to Judgment 28 C.C.No.1112/2018 the accused, she had made mentioned in her books of account and income tax returns and she had no impediment to produce the same. As discussed earlier, she choosen to produced income tax returns at Exs.P11 and P12. On meticulous perusal of the same, it does not revel the name of complainant or her nexus to the said concern. The said document produced at later stage is not suffice the case of complainant. At least as she deposed, she could have produced her books of account or ledger account or necessary loan documents maintained in her Kanchana Group of Company. But though she claimed, she got made mentioned the lent of loan to the accused for the tune of Rs.5 lakhs in the books of account for the reasons better known to her, she withheld the same. Therefore, only one inference can be drawn on non production of material piece of document by the complainant that, as projected by the accused, she only lent loan of Rs.2 lakhs from Kanchana Group of Company, and the accused was repaid the said amount as she contended, the same were must have to be recorded in the said books of accounts or ledger account or any other loan particulars maintained in the Kanchana Group of Company. If at all, the same is produced before this court, it would revel the truth, therefore, wantonly the complainant has withheld the said material piece of document is more clarified the Judgment 29 C.C.No.1112/2018 very conduct of the complainant and indirectly proved the probable defence of the accused.
35. Apart from the above said contradiction, it also extracted from the mouth of PW.1 so many doubtful circumstances as to the alleged loan transaction. The PW.1 has deposed regarding lent of loan, she had maintained in her books of account, but she not produced the same. The said contention clearly admitted the defence of the accused. The said books of account are loan particulars maintained in the Kanchana Group of Company, if been produced before this court definitely, it would revel the true affairs conducted by the complainant. The PW.1 in her further cross-examination has deposed, when she took the Ex.P1- cheque and Exs.P8 and P9 that:
"ಆರರನಪಗ ನನನ ದನಯಕರ10.09.2015 ರಯದನ ರರರ3 ಲಕ ಸಲ ನ , ಒಯದನ ನಗದನ ನನನಯದ ಪಡಯನವಗ, ಆಕಯಯದ ನಪ-1 ಚಕಕನನ ಆಯಡಮಮಯಡಪಪಮಸರ ನರನಟನನ ನ ಬರಯಕರಯಡದನ. ನಪ-1 ಚಕಕನನ ನ ಆರರನಪಯಯದ ಪಡದ ಬಗಗ ಹಣ ಸಯದ ರಸನತ ಮತನತ ಅಯಡಮಮಯಡ ಪಪಮಸರ ನರನಟನಲ ಬರಯಸಕರಯಡಲಲ. ಆರರನಪಗ ನನನ ಬಡಡರಗ ಸಲ ನನಡಲಲ, ಆಕಯ ಮಗನ ಅನರರನಗಮದ ನಮತತ, ಆಕ ಒಯದನ ಮಗ ಕಲವದ ಕರಣ, ಬಡಡ ಪವತಸನವ ಸಮರಮರ ಆಕಗ ಇರಲಲಲ,ಆಕಗ ಬಡಡರಹತವಗ ನನಡದನನ."
Judgment 30 C.C.No.1112/2018
36. It is significant fact to note that, the accused has attack on the claim of complainant by contending that, she only lent Rs.2 lakhs from the Kanchana Group of Company of the complainant on 01.09.2015 on the guarantee of signed blank cheque, signed blank On demand promissory note and consideration receipt and despite, she got cleared, the complainant got misused the same without return to her. Under that backdrop, it needs to appraise the evidence of PW.1 stated about.
37. The PW.1 has deposed that , on 10.09.2015 when she lent Rs.3 lakhs to the accused in cash, she took Ex.P1-cheque, On demand promissory note and consideration receipt from her. She stated that, regarding having receipt of the Ex.P1, she not made mentioned in the On demand promissory note and consideration receipt. By deposing so, the PW.1 has clearly admitted, she got obtained cheque and On demand promissory note and consideration receipt. But she deposes, while lent of Rs.3 lakhs on 10.09.2015, she took the same. It is pertinent to note that, she gave Rs.2 lakhs on 01.09.2015 on the said day, on appraisal of her evidence it revel in-directly she admitted not obtained any document, but why lent Rs.3 lakhs, she took Ex.P1, P8 and P9 from the accused. Then on which guarantee she got released Rs.2 lakhs from her finance company to accused on 01.09.2015 Judgment 31 C.C.No.1112/2018 itself is not been explained. The complainant is not an ordinary woman she is claiming she is proprietor of Kanchana Group of Company definitely, when passing of consideration at the 1 st instance itself she might have been taken some security documents which are those, other than the defence taken by the accused is not been explained by the complainant.
38. On going through her testimony stated above, it also revealed that, she is not paid Rs.5 lakhs on 10.09.2015. Under such circumstances, without passing Rs.5 lakhs on 10.09.2015 she got obtained Ex.P9 by mentioning received from Kavitha.A, sum of Rs.5 lakhs being the consideration amount of the pronote executed by me/ accused this day in your favour in presence of following witnesses.
39. On meaningful reading of Ex.P9, if at all, accused got executed the Ex.P9 against the receipt of Rs.3 lakhs on the said day, why she needs to write or executed consideration receipt by mentioning wrongly as receipt of Rs.5 lakhs. Admittedly, on 10.09.2015 Rs.5 lakhs was not remitted by the complainant to the accused, against her alleged Rs.3 lakhs, why she took the consideration receipt by mentioning Rs.5 lakhs is one of the Judgment 32 C.C.No.1112/2018 strong doubtful circumstances is created from the conduct of the PW.1.
40. That apart, in the Ex.P9 consideration receipt, wherein, the accused has admitted her signature at Ex.P9(a) and she stated, while borrow Rs.2 lakhs from the Kanchana Group of Company, she gave signed blank documents. Therefore, as per her say, it was blank. The PW.1 in her cross-examination has stated, who are signatory to the Exs.P8 and P9. As discussed in the 1st part of appraisal of evidence of PW.1, her car driver and Manjula were present while lent Rs.3 lakhs on 10.09.2015. If so, in the presence of witnesses she lent the said sum, definitely, the complainant needs to examine the eye witnesses as well as witnesses to the Ex.P9 consideration receipt by name Manjula.N and Prakash.H. But for the reasons better known to her, she has not been examined. If at all, she was in the habit of obtaining On demand promissory note and consideration receipt while lent loan to accused, as said by her, if it is not lent by her finance, she need to obtain such document. If at all, require to obtain definitely, on the 1st day she transfer Rs.2 lakhs from her Kanchana Group of Company, she could have been obtained and for the later same only Ex.P9 as to be got executed by the accused, but contrary to the same, on 10.09.2015 itself shown as lent Rs.5 lakhs itself is Judgment 33 C.C.No.1112/2018 created doubt, as to the genuineness of due execution and issuance of consideration receipt at Ex.P9.
41. Above testimony at the fag end discloses, the PW.1 clearly admitted that, she lent money to attend the medical expenses of son friend accused and her one son already died, therefore, the accused was in the capacity pay interest, therefore, she lent money as without any interest. If her contention is so, the accused is not able to pay the interest, then on which confidence the complainant was lent the huge loan of Rs.2 lakhs on 01.09.2015 and Rs.3 lakhs on 10.09.2015 itself creates doubt. When she suspected the financial capacity of the accused as to payment of interest, it also to be consider that, to repay the huge amount of Rs.5 lakhs, the accused has no financial capacity. As discussed earlier, it also on 10.09.2015 Ex.P8 alleged On demand promissory note executed by the accused in favour of complainant. Contrary to the true affairs of lent of Rs.3 lakhs to the accused on 10.09.2015, the accused got executed Rs.5 lakhs On demand promissory note itself creates doubt as to the true transaction. Therefore, the Exs.P8 and P9 rather supports the claim of complainant, itself creates doubt as to the bonafidness of the claim put forth by the complainant. The complainant being running the Kanchana Group of Company justified, she did money Judgment 34 C.C.No.1112/2018 transaction, she needs to produce her money lending license enable this court to incident, whether she follow the procedure and doing the business in accordance with law are not. Despite, accused attack on the claim of complainant, she withstood those material piece of document also revealed the bonafidness of the complainant.
42. The accused also attack on the claim of complainant by contending that, she gave signed blank cheque to the complainant while borrow Rs.2 lakhs on 01.09.2015 from Kanchana Group of Company as a security for the said loan and later it was cleared by her in the month of April, 2016, she not returned those documents. Thereby, the accused has made serious allegation against the complainant being a financier as to misuse of signed blank cheque. Therefore, it is the complainant needs to remove the doubtful circumstances created by the accused.
43. During the course of cross of PW.1, she had deposed to the suggestion made by the accused advocate that, the admitted signature at Ex.P1(a) and other signatures and ink with regard to fillings made in the cheque are appears to be different, the PW.1 without denying the same as try to explain that, already got filled Judgment 35 C.C.No.1112/2018 and in her presence she put signature. She also clearly admitted that, signature made in ball pen and other writings are made in ink or jell pen, but she clearly deposed, she does not see the same. The said evidence of PW.1 disclosed, the said cheque was not duly executed by the accused in favour of complainant. The PW.1 has deposed that, she had no impediment to examine the witnesses cited in Ex.P9 by name Manjula and Prakash, as to prove the lent of Rs.3 lakhs, but for the reasons better known to her till the fag end not choosen to did so. The PW.1 though has deposed, the hand writings and signature are alleged to be made in different hand writing, she has failed to demonstrate that, accused herself has got issued and executed the questioned cheque in favour of her. On going through the Ex.P1-cheque, it disclose appears to be old cheque. On going through the said cheque, the signature and other writings are apparently made in different ink and hand writing. The complainant not satisfactorily demonstrated it was duly executed by the accused.
44. On going through the Ex.P1-cheque on both side it discloses, the signature of the accused. Normally drawer of the cheque if it was issued to the borrower requires to put signature on the front sheet only. If the person used to cheque for self, then she needs to put signature on both side, as she herself is the Judgment 36 C.C.No.1112/2018 drawee. Therefore, the signature made on 2 sides of the cheque revealed that, the complainant for the reasons better known to her, if at all, got executed the same in favour of either to the complainant or her Kanchana Group of Company, she needs to obtained the signature of one side and obtaining of signature on 2 sides leads for another doubtful circumstances misusing of the said cheque.
45. The accused has successfully proved her defence by way of cross-examining the PW.1 and extracted several contradictions from the development and omissions. There was clear suggestion made to PW.1 during her cross-examination that, the accused not borrowed loan from the complainant personally, but only borrowed Rs.2 lakhs on 01.09.2015 from her Kanchana Group of Company on the security of signed blank cheque, signed blank On demand promissory note and consideration receipt produced at Exs.P1, P8 and P9, and she got cleared the loan during April, 2016 to the said finance, complainant without returned her security documents filed the false case by projecting the alleged lent of loan of Rs.5 lakhs. Though, PW.1 denied other suggestions itself is not suffice to so the statutory presumption by virtue of Sections 118 and 139 of Negotiable Instruments Act. It is significant fact to note that, those statutory presumption initially Judgment 37 C.C.No.1112/2018 favour complainant is rebuttable one. After the accused has successfully rebutted by way of oral as well as documentary evidence coupled with contradictions secured from the evidence of PW.1, it is the reverse burden on the complainant to prove her case beyond the reasonable doubt. Therefore, as per Section 139 of Negotiable Instruments Act, it is reverse burden on the complainant to prove the guilt of the accused.
It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".
In another decision reported in 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 -
Something probable has to be brought record -
Judgment 38 C.C.No.1112/2018 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".
Added to that, in a decision of 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".
46. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish her very case beyond the reasonable doubt in order to convict the accused. In that regard, the complainant has utterly fails to produce her Kanchana Group of Company account ledger, ledger extract and Judgment 39 C.C.No.1112/2018 loan documents as to the alleged lent of loan of Rs.2 lakhs on 01.09.2015. Even she has not produced necessary documents, as to show that, she had sufficient funds in her personal account. Admittedly, the said payment of Rs.2 lakhs sent by her from the account of company. Therefore, she made used on the account of the Kanchana Group of Company, therefore, she is accountable to furnish those necessary particulars pertaining to her finance. Though, she claiming proprietor, she has not produced necessary documents as well as license enable her to do such money lending business. Though she claiming on different date lent the loan of Rs.2 lakhs and Rs.3 lakhs on 01.09.2015 and 10.09.2015, at the time of earlier lent of loan, she not obtained any document is not been substantiated, but the accused able to prove that, she borrowed the earlier loan of Rs.2 lakhs from her finance on the security of signed blank cheque, signed blank On demand promissory note and consideration receipt and the same was misused in the present case.
47. The complainant also failed to examine the eye witnesses, who present at the time of alleged lent of loan of Rs.3 lakhs to the accused. Though, she has produced her income tax returns, it does not suffice to prove the case put forth by the complainant. The accused has projected her defence contending borrowed Judgment 40 C.C.No.1112/2018 loan of Rs.2 lakhs from the finance and got repaid. Therefore, the production of documents pertaining to Kanchana Group of Company, which leads through the complainant is the vital piece of document, which has been withheld by the complainant is fatal to her case. Mere because of she possessed questioned cheque from the accused signed in blank while lent loan of Rs.2 lakhs from her Kanchana Group of Company, despite, she got cleared in order to swindle more money from accused, differently she projected she lent personal loan. She has utterly failed to demonstrate that, either she lent personal loan of Rs.3 lakhs or the said sum was lent from the account of her Kanchana Group of Company is not been proved by her. Against the payment of Rs.3 lakhs as alleged on 10.09.2015 the complainant got obtained Exs.P8 and P9 for Rs.5 lakhs in the presence of accused itself is created doubt as to the bonafidness. In that regard, no witnesses were examined nor satisfactory explanation is forth coming from her side are debars her claim. As discussed above, the complainant has utterly failed to prove that, on 10.09.2015 she lent Rs.3 lakhs to the accused in the presence of witnesses. When accused has clearly projected whatever the amount she borrowed on 01.09.2015 from the Kanchana Group of Company of complainant got repaid, she misused the questioned cheque Judgment 41 C.C.No.1112/2018 and other documents has to be accepted. When complainant has failed to demonstrate, accused still liable to pay Rs.5 lakhs, which is legally recoverable debt is not been proved. Hence, the same is not legally recoverable debt. Mere because of complainant possessed the Ex.P1-cheque would not enable her to filed present case, but claimed imaginary amount as per her wish. She has utterly failed to prove that, the amount made mentioned in the Ex.P1-cheque is the legally recoverable debt.
48. That apart, the complainant has utterly failed to prove, to produce her financial particulars which reveal the financial capacity to do that much huge transaction and alleged lent to the accused very particularly on the dates so alleged. Hence, the accused has proved her probable defence oral as well as relied upon documentary evidence of complainant and made out so may rebuttable circumstances, which brushed out the claim of complainant. Hence, the accused is entitled for benefit of doubt for acquittal.
49. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, she fails to demonstrate her very case. While appreciate the materials available on record, this court has Judgment 42 C.C.No.1112/2018 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".
50. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused 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 Judgment 43 C.C.No.1112/2018 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".
51. 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.5 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.
52. 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.5 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, Judgment 44 C.C.No.1112/2018 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.5 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
53. 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.
54. 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 Judgment 45 C.C.No.1112/2018 reverse burden to prove her contention as alleged in the complaint, in view of the accused has rebutted her case. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.5 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.
55. 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.
The bail bond and cash security/surety bond of the accused stands cancelled.
Judgment 46 C.C.No.1112/2018 (Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 9 th day of November
- 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Kavitha.A @ Kanchana.A 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 : Reply notice
Ex.P6 : Complaint dtd:14.11.2017
Ex.P7 : Settled reply
Exs.P8 & P9 : On demand promissory note and
consideration receipt
Exs.P8(a) & P9(a) : Signatures of accused
Ex.P10 : Private complaint
Ex.P10(a) : Signature of complainant
Ex.P11 : ITR-V
Ex.P12 : Statement of capital account
List of Witnesses examined on behalf of the defence:
DW.1 : Kalavathi List of Exhibits marked on behalf of defence:
Ex.D1 : Reply notice
Ex.D2 : Postal receipt
Ex.D3 : Postal acknowledgment card
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 47 C.C.No.1112/2018
09.11.2020.
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.