Bangalore District Court
Sri.Ravichandra M.S vs Smt.Malini K.K on 9 January, 2017
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 9th day of January 2017
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.28688/2014
Complainant : Sri.Ravichandra M.S.
S/o.Siddaiah,
Aged about 40 years,
R/at No.355, 18th Main,
4th Block, Nandini Layout,
Bengaluru.
(Rep. by Mr.Sreenidhi.V &
Ors., Adv.,)
- Vs -
Accused : Smt.Malini K.K.
W/o.Srinath Murunde
Ramachandra,
Proprietor of
Sai Madhura Enterprises
Aged about 35 years,
R/at.No.128, 1st Floor,
1st Cross, Lake Garden Shore,
Thindlu, Vidyaranyapura(Post)
Bengaluru-560097.
2 C.C. No.28688/2014 J
(Rep. By Shridhara.K.,Adv.,)
Case instituted : 02.08.2014
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 9.01.2017
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, both the Accused and her husband are known to him for several years and by taking advantage of the same, they requested him to lend a sum of Rs.5,00,000/= as a hand loan to them in the month of January 2014 for their business and personal necessities and also to discharge their debts. Prior to the said loan the husband of the Accused had taken a hand loan of Rs.5,00,000/= from him for his family necessities and both of them had assured to discharge their debts. Believing the Accused 3 C.C. No.28688/2014 J and having full faith in her bonafides, he lent a land loan of Rs.5,00,000/= to the Accused during the last week of January 2014, which the Accused had agreed to repay within 4 months from the date of the said hand loan.
3. After the completion of the said period of 4 months, as per the assurance of the Accused, when he personally requested her to repay the loan of Rs.5,00,000/=, after several requests made by him, finally the Accused issued a cheque bearing No.341310 dated 2.6.2014 drawn on the Bank of Maharashtra, Basavanagudi Branch, Bengaluru, for a sum of Rs.5,00,000/= towards the discharge of the aforesaid loan, which he accepted in good faith.
4. The Complainant has further submitted that when he presented the said cheque for encashment through his Banker, the same came to be returned dishonoured for the reason "Account Closed" vide endorsement dated 3.6.2014.
5. Left with no other option, he got issued a legal notice to the Accused on 2.7.2013 through RPAD, which came to be returned back on 14.7.2014 with a shara. The 4 C.C. No.28688/2014 J Accused has failed to comply with the demand made in the legal notice, has failed to pay the cheque amount.
6. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
7. The Pre-summoning evidence has been led by the Complainant on 30.10.2014. Prima-facie case has been made out against the Accused and he has been summoned vide order of the same date.
8. The Accused has appeared before the Court on 10.7.2015, she has been enlarged on bail. The substance of the accusation has been read over to her on 15.9.2015, to which she has pleaded not guilty and has claimed the trial.
9. In his post-summoning evidence, the Complainant has examined himself as PW1 and has filed 5 C.C. No.28688/2014 J his affidavit, wherein he has reiterated the averments made in the complaint.
P.W.1 has also relied upon the following documentary evidence:-
Ex.P1 is the cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank Memo as per Ex.P2, the office copy of the Legal Notice as per Ex.P3, the Postal Receipt as per Ex.P4, the Reply notice as per Ex.P5, the Postal Cover as per Ex.P6 and the Postal Receipt as per Ex.P7.
Ex.D1 to 7 have been marked through P.W.1 during his cross-examination by the learned Defence counsel.
10. The statement of the Accused under Sec.313 of Cr.P.C., has been recorded on 21.10.2016. The Accused has denied the incriminating evidence found against her and on her behalf, a written statement setting forth her defence has been filed by the Accused.
11. Final arguments were advanced at length by the learned counsels representing both the sides.
6 C.C. No.28688/2014 J12. The learned counsel for the Complainant has prayed for the conviction of the Accused on the ground that, there is no dispute with regard to the acquaintance between the parties as well as the earlier financial transaction between them. There is no mention of the cheque in question in document at Ex.D1, which is the office copy of the legal notice dated 1.7.2013, said to have been issued by the Accused though her counsel to the Complainant. In the Reply Notice, the Complainant has suitably replied to the allegation made in the legal notice against him at Ex.D1 and in such circumstance, the burden is once again shifted to the Accused to prove the allegation leveled against the Complainant in Ex.D1.
13. It is further argued that, the challans produced by the Accused as per Ex.D3 is not disputed by the Complainant, but they relate to the earlier transaction between the parties. The document at Ex.D4 which is said to be the SMS's said to have been sent by the Complainant to the Accused is disputed and that the same is not proved as per law. It is further argued that, the certified copy of the deposition of the Complainant in C.C.No.103/2013 at Ex.D6, is in no way related to the present case and as such, the documentary evidence 7 C.C. No.28688/2014 J relied upon by the Accused at Ex.D1 to 7 are in no way related to the present transaction. It is also argued that, the Accused has failed to produce the portion of the SMS's i.e., the reply sent by the Accused to the Complainant and therefore the document at Ex.D4 is an incomplete document which does not disclose real state of affairs. Hence on these ground prayed for the conviction of the Accused.
14. On the contrary, the learned Defence Counsel has prayed for the acquittal of the Accused on the ground that, even if the version of the Complainant as set out in Para No.7 to 9 of the Reply Notice at Ex.D2 is taken into consideration by this Court, according to the Complainant, the alleged loan transaction between the parties commenced in February 2011 and continued till 31.7.2013, during which, he claims to have lent a total sum of Rs.13,80,000/= to the Accused and her husband. Admittedly, the date of the cheque in question is 2.6.2014. Likewise, it is the claim of the Complainant that, he demanded for the repayment of the alleged loan amount from the Accused in June 2014. In such circumstance, the transaction itself amounts to a time bar debt, by virtue of which, the provision of which 8 C.C. No.28688/2014 J Sec.138 itself would not attract. Therefore without touching the merits, the complaint would be bad in law, since the cheque is issued towards a time barred debt.
15. It is further argued by the learned Defence Counsel that, in Ex.D2 it is stated by the Complainant that he has received two cheques i.e., one for Rs.8,80,000/= and another cheque belonging to the present Accused for Rs.5,00,000/=. Then it is the duty of the Complainant to clarify, as to, which is the cheque issued by the Accused, in respect of the legal notice sent to her as per Ex.P3 and Ex.P5. According to the Complainant, other than the transaction stated in the present case, there is no other transaction between the parities and when the Complainant admits that there were exchange of the legal notices and the reply notices between the parties in the year 2013, then the Complainant could not be excepted to have lent a fresh loan to the Accused in January 2014. Therefore when the Complainant himself has admitted that, the relationship between himself and the Accused and her husband had strained in the year 2013, then it cannot be excepted of the Complainant to have advanced a fresh loan to them again in the year 2014.
9 C.C. No.28688/2014 J16. It is further argued that, the postal envelope at Ex.P6 does not contain any shara and it is admitted by the Complainant that, the legal notice has not been served upon the Accused. Intentionally the Complainant has not got served the notice to the Accused, so as to avoid her from taking appropriate legal action against him. It is also argued that, the Complainant has admitted the documents at Ex.D5 and 6, but intentionally he says that they are in respect of the earlier case. However he has failed to explain before the Court, as to, which is the said earlier case. Moreover, during his cross- examination, the Complainant has given an answer in respect of the SMS's as shown in Ex.D4 that, he had sent the said SMS's only with a view to threaten the Accused. In such circumstance, he cannot be expected to lend a loan to the Accused once again in the year 2014. Thus according to the Accused, the Complainant has filed this false case against the Accused, by colluding with one D.K.Harish and Nataraj and though there is no transaction between them, she has been falsely implicated in the present case, with an ulterior motive to harass her and to extract money from her illegally.
10 C.C. No.28688/2014 J17. It is also argued that, the conduct of the Complainant in visiting the Court at T.Narasipura on every hearing date in another cheque bounce case, which was filed by one Nataraj is proved by the documentary evidence at Ex.D7 and Ex.D7(a) and all these circumstances, clearly establish that the Complainant has foisted a false case against the Accused for wrongful gain. Hence on all these grounds prayed for the acquittal of the Accused.
18. I have considered the submissions and perused the record carefully.
19. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards the payment of the amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the bank as unpaid;11 C.C. No.28688/2014 J
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section
138.
20. The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
21. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
22. Also, Sec. 118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
12 C.C. No.28688/2014 J(a) that every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
23. Thus, the Act clearly lays down the presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused, towards the discharge of his liability in favour of the Complainant.
24. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
25. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
26. The first and the technical defence raised by the Accused is that, there is no service of legal notice upon her.
It is a well settled principle of law that, in order to attract the offence punishable under Sec.138 of the N.I 13 C.C. No.28688/2014 J Act, one of the legal requirements prescribed in the said provision i.e., the issuance of the statutory demand notice by the Complainant to the Accused needs to have been complied with by the Complainant. Otherwise the Complaint will be bad in the eye of law and therefore it may not be maintainable.
27. In the present case, the Accused has raised a defence that, there is no service of legal notice upon her. To substantiate the same, during the cross-examination of the Complainant, the same suggestion has been put to him to the effect that, there is no service of legal notice upon the Accused. In this regard, the Complainant has given a material admission that the legal notice sent to the Accused is returned and that neither in the complaint nor in his affidavit has he stated the reason due to which, the said legal notice has been returned to him and that the said notice has not been served upon the Accused. It could be seen that, neither in the complaint nor in his sworn statement affidavit nor in his chief-examination affidavit, has the Accused stated the reason, due to which, the notice sent by RPAD to the Accused has been returned with a shara on 14.7.2014. No doubt there is no dispute with regard to the address 14 C.C. No.28688/2014 J of the Accused as shown in the complaint or in the legal notice or in the affidavit of the Complainant. However it is a settled position of law that admission is a best piece of evidence. Therefore as it is admitted by the Complainant himself that, the legal notice is not served upon the Accused, one of the essential ingredients of Sec.138 of the N.I.Act is not complied with by the Complainant and as such the Complaint is bad in the eye of law.
28. Now coming to the merits of the case, the Accused has taken up a defence that, in the year 2010 itself, her Banker had closed her account in view of no transactions in her account, without giving her any intimation. Interestingly the Complainant has not denied the said suggestion, but on the other hand, it is elicited from him that, even after the cheque in question came to be returned with an endorsement "Account Closed", he did not make any attempt to know, the year, in which, the account of the Accused came to be closed as well as the reason due to which the same was closed by the Banker. Therefore when the Complainant has not disputed that, the account of the Accused has been closed, not at the instance of the Accused, but at the 15 C.C. No.28688/2014 J instance of her Banker, it goes to show that, there is no intention on the part of the Accused, so as to issue the cheque drawn on a Bank, in which her account was already closed. Therefore as the Complainant has not denied or disputed the defence of the Accused that the account relating to the cheque in question had been closed in the year 2010 itself, the other important ingredient of Sec.138 of the N.I.Act i.e., the existence of the account, in respect of which, the cheque in dispute is drawn is also not fulfilled. Therefore this is also a failure on the part of the Complainant to fulfill the said requirement of Sec.138 of the N.I.Act.
29. No doubt there is no dispute between the parties with regard to their acquaintance as well as their financial transaction between each other. However it is elicited from the mouth of PW1 that, he knows the husband of the Accused since 2005 to 2006 and that, except the transaction in question, he has not made any other financial transaction with the Accused, but according to him other than the transaction of Rs.5,00,000/= as claimed in the present case, there had been other financial transaction between the family members of the Accused and himself. However in this 16 C.C. No.28688/2014 J regard, on behalf of the Accused, the certified copy of a notice dated 1.7.2013 is confronted to PW1 and the same is marked as Ex.D1. The certified copy of the legal notice at Ex.D1 is also marked through PW1 as Ex.D2.
30. It is pertinent to note that, under the legal notice at Ex.D1, which is issued to the Complainant on behalf of the Accused, it is stated that, the husband of the Accused has availed a loan of Rs.3,00,000/= in the first week of June 2009 and that at that time, he insisted the Accused and her husband to execute some documents as security to the said hand loan and since they were in need of money they fulfilled his demand and issued 4 un-dated cheques, i.e., two cheques of the Accused and two cheques of her husband, which were only signed by them. It is further stated that, out of the said cheques, the present Accused had issued a signed blank cheque bearing No.415159 of HDFC Bank, West of Chord Road Branch, Basaveshwaranagara, Bengaluru and cheque bearing No. 341309 of Bank of Maharashtra, Basavanagudi Branch, Bengaluru and her husband had also given his signed blank cheque of Federal Bank and another cheque of ICICI Bank as security and he had also collected their signatures on blank Pro-notes, blank 17 C.C. No.28688/2014 J on Demands and some blank stamp papers and assured them that they would be returned as soon after their repayment of the loan and that thereafter the husband of the Accused also took Rs.1,00,000/= by way of cash as hand loan in the month of January 2011.
31. It is further stated that, in the said transaction, huge interest were paid by them to him every month, but when he started extorting them by charging exorbitant interest and kept them under fear stating that, he had underworld contacts. Therefore in the month of July 2012, they requested for a one time settlement with him and at that time, he demanded them to give him Rs.3,00,000/= in total, so as to clear off their dues including the interest from them and after much persuasion, he agreed for a final settlement of Rs.2,50,000/= cash. It is further stated that, as per the said settlement, they paid Rs.2,50,000/= to him in August and requested him to return back their blank documents, but at that time, he insisted for a further payment of Rs.50,000/- and as they avoided to meet the said ill-legal demand, he failed to hand over the aforesaid documents to them.
18 C.C. No.28688/2014 J32. It is further stated in the legal notice that, the Accused and her husband felt safe to clear the due amount of Rs.50,000/= to him in further and to get back the documents and accordingly even in the month of July 2012, they sought for the return of all the documents, which were in his possession, but even at that time, he demanded them to pay the remaining amount and believing his words, they deposited an amount of Rs.25,000/= to his account.
33. However inspite of it, they were issued with a legal notice dated 3.11.2012 through one Harish, a total stranger to them, alleging that, the cheque bearing No341309 of Bank of Maharashtra, Basavanagudi Branch, Bengaluru was issued to him for Rs.3,00,000/= and that the same was dishonoured and after the receipt of the said notice they expressed their dismay and apprehended that the said Harish is his benami and requested him to give back the blank cheques, for which, he demanded them to give back the remaining amount. Thus under the said circumstances, till date their signed blanks and the singed blank documents are in his possession even though they have cleared the entire amount more than the due amount. But the Complainant 19 C.C. No.28688/2014 J has been harassing them by filing complaints through some strangers.
34. Ex.D2 is the Reply notice, which is got issued by the Complainant through his counsel to the counsel for the Accused and her husband, in which at para No.5, it is stated that, the Complainant is not at all known to one Harish and he has also denied that, he is in possession of the blank cheques and signed blank documents pertaining to them and it is further alleged in para No.7 of the said reply notice that, the Accused and her husband have jointly borrowed money on various dates from him commencing from February 2011 onwards and as on 31.7.2013, they have borrowed a total sum of Rs.13,80,000/= for the purpose of starting the business, which is not repaid by them and that they have also issued two cheques towards the discharge of the liability of Rs.13,80,000/= to him. It is further alleged in Ex.D2 that, the husband of the Accused has issued a cheque for Rs.8,80,000/=, while the Accused has issued a cheque for Rs.5,00,000/= and therefore the Accused and her husband have been called upon to pay the entire loan amount of Rs.13,80,000/= along with 24% interest per annum.
20 C.C. No.28688/2014 J35. With regard to the claim amount made by the Complainant, interestingly according to him right from February 2011 till 31.7.2013, the Accused and her husband had availed a loan of Rs.13,80,000/= from him. Even if it is assumed for a moment that, the said claim of the Complainant is correct, then it is the burden shifted to the Complainant to prove as to where is the cheque issued by the husband of the Accused for Rs.8,80,000/= and as to when has it been presented for encashment?. However the Complainant has failed to explain before the Court as to which was the said cheque issued by the husband of he Accused? However during his cross- examination it is elicited from PW1 that, there is no reference about the office copy of the legal notice at Ex.P3 and Ex.P5 either in Ex.D1 or in Ex.D2. However when it is suggested to PW1 that, there was a dispute between the Accused and her husband and himself in respect of the cheque in question and 3 other chuques in the year 2013, he has failed to deny the said suggestion, but has subsequently come up with an answer that, there is no relationship between the cheque in question and the other cheques. However it is admitted by PW1 that, he 21 C.C. No.28688/2014 J has not stated the exact date of his alleged lending of Rs.5,00,000/= to the Accused in 2014.
36. During the course of his further cross- examination, it is stated by the Complainant that except the cheque in question and the other cheque belonging to the husband of the Accused, he is not in possession of any other cheques of the Accused. However he has come up with a strange explanation that, he has not collected any cheques from either the Accused or her husband, except the cheque in question and the other cheque belonging to the husband of the Accused on any other occasion. Interestingly this statement made by the Complainant is contrary to what is stated in the Reply Notice by the Complainant in Ex.D2. However with regard to the cheques referred to in Ex.D2, it is claimed by the Complainant that, he has returned them to the Accused, but he has admitted that, there is no document in the form of an acknowledgment or a receipt to show that he has returned the said cheques to the Accused.
37. Likewise it is elicited from PW1 that, he has not taken any legal action against the Accused in respect of an allegation made by her in the legal notice at Ex.D1, 22 C.C. No.28688/2014 J alleging that her 4 cheques are in his possession and according to him after he gave reply notice to the Accused and her husband as per Ex.D2, the transaction stated in the present case has taken place. Interestingly the Reply Notice at Ex.D2 is dated 31.7.2013 and likewise the SMS's at Ex.D4 have taken place during the period from August 2012 to June 2013. The details of the said conversation clearly goes to show that the relationship between the Complainant, the Accused and her husband was strained in the year 2013 itself.
38. As rightly pointed out by the learned Defence Counsel in his arguments that, admittedly the relationship between the parties had strained in the year 2013, then it is highly improbable to believe and expect the Complainant advanced a fresh loan of Rs.5,00,000/= to the Accused in the month of January 2014. It is a human tendency that if any loan is advanced and if it is not repaid within the stipulated period according to terms and the conditions accepted between the parities, then no man of ordinary prudence would come forward to advance a fresh loan to such borrower, who has failed to keep up and honour his words in the previous promise. Therefore it clearly goes to show that, the claim of the 23 C.C. No.28688/2014 J Complainant that even though there was strained relationship between the Accused and himself in the year 2013, he advanced a fresh loan to the Accused in the year 2014 is highly impossible to be believed.
39. Further it is elicited from PW1 that, the Accused has deposited a sum of Rs.25,000/= to his SB account in the SBI, which is stated in Ex.D1 and that, he had no impediment to take a letter in writing from the Accused to the effect that she has received the cheques referred to in Ex.D2. However if the claim of the Complainant that, he had really returned the cheques referred to in Ex.D1 to the Accused, then as a man of ordinary prudence would do under a similar circumstance, the Complainant also could have taken an endorsement in the form of a receipt or an acknowledgment from the Accused. Moreover when the Complainant has admitted that, the Accused has deposited a sum of Rs.25,000/= to his account as per Ex.D3, nothing prevented him from pleading the same in the complaint. However it is elicited from PW1 that, he has no impediment to produce his statement relating to SBI account. Likewise it is also elicited from PW1 hat, as per the challans at Ex.D3, a sum of Rs.30,000/= has been deposited to his account.
24 C.C. No.28688/2014 JBut there is no explanation given by the Complainant as to what was the transaction, in respect of which, the said payments have been made by the Accused to his account. Therefore the conduct of the Complaint in this regard raises a serious doubt about his case.
40. The Accused has also taken up a defence hat, after she got issued the legal notice to the Complainant as per Ex.D1 in the year 2012, the Complainant has got filed the cheque bounce cases through one B.K.Harish and one Nataraj and on the basis of the remaining two cheques, the present false case and a case against her husband has been foisted by the Accused. Though the Complainant has denied the same, during his cross- examination, the certified copies of the affidavit and the cross-examination of one Nataraj. B have been marked as Ex.D6 & 7 respectively.
41. It is further elicited from P.W.1 that, as per Ex.D7(a), the Complainant therein viz., Nataraj.B has admitted in the said proceedings that, the former was accompanying him on the date of every hearing of the said case, before the said court. Though P.W.1 has denied that, he was regularly appearing before the said 25 C.C. No.28688/2014 J Court along with Nataraj, the admission of the said Nataraj as per Ex.D7(a) in the said case goes to prove the defence of the Accused that, it is the Complainant, who has hatched a complaint by misusing the cheques belonging to her and her husband. Otherwise there was no special reason for the Complainant to appear before the court at T.Narasipura on every hearing date along with the Complainant of the said case Nataraj. Therefore the conduct of the Complainant whihc proved by the Accused through the documentary evidence at Ex.D6 & 7 clearly goes to show that, the defence of the Accused is probable and reliable.
42. With regard to the contents of the SMS's at Ex.D4, the Complainant has claimed before this Court that, only with a view to threaten the Accused and her husband he had sent such SMS's to them. However there was no reason for the Complainant to threaten either the Accused or her husband and instead he could have taken steps against the Accused after 26.12.2012 as he has referred to in Ex.D5.
43. Thus the entire evidence available on record clearly goes to establish the fact that, though the 26 C.C. No.28688/2014 J Accused and her husband have repaid the entire loan that they had availed from the Complainant in the year 2009, the present false case has been initiated against her by the Complainant, by misusing the cheque in question. Moreover the Complainant has utterly failed to prove the alleged loan transaction and therefore even on merits, the case of the Complainant is bound to fail.
44. In support of the defence of the Accused, the learned Defence Counsel has relied upon the following decisions:-
1. In Amzad Pasha Vs., H.N.Lakshmana, reported in KCCR 2010 3 1950,
2. In H.P.Moodalappa Vs., C.A.Chowrappa, reported in 2012 Crl.L.J.804,
3. In Krishna Janardhan Bhat Vs., Dattatraya G.Hegde, reported in AIR 2008 SC 1325,
4. In K.Narayana Nayak Vs., M.Shivarama Shetty, reported in KCCR 2008 3 1569,
5. In Veerayya Vs., G.K.Madivalar, reported in KCCR 2012 3 2057,
6. In S.Timmappa Vs., L.S.Prakash, reported in 2010 Crl.L.J.3386,
7. A.Vishwanatha Pai Vs., Vivekananda S Bhat, reported in KCCR 2009 1 508, 27 C.C. No.28688/2014 J
8. In Wilson Marcelin Carvalho Vs., Krishna Budhaji Patil, in Crl.Appeal No.609/2007,
9. In Manoharaswamy Vs., Moulasab, in Crl.Appeal No.1038/2007,
10. In K.V.Subba Reddy Vs., N.Raghava Reddy, in Crl.Apl.No.545/2010.
45. It is a well settled principle of law that, an Accused is not expected to enter the witness box so as to prove his/her defence. It is sufficient for the Accused to rely upon the materials that is already brought on record in order to probabalise his/her defence. Therefore in the present case, I have no hesitation to conclude that the Complainant has utterly failed to prove the existence of the legally enforceable debt and on the other hand the defence of the Accused is probable and reliable.
46. Thus for the reasons discussed above, I proceed to pass the following: -
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act.
Her bail bond and surety bond stands canceled.28 C.C. No.28688/2014 J
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 9th day of January 2017).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:
PW.1 : Ravichandra M.S
2. List of documents exhibited on behalf of the Complainant:
Ex.P-1 : Original Cheque; Ex.P-1(a) : Signature of the Accused; Ex.P-2 : Bank memo; Ex.P-3 : Copy of the Legal Notice; Ex.P-4 : Postal receipt; Ex.P-5 : Reply Notice; Ex.P-6 : Postal Cover; Ex.P-7 : Postal Receipt;
3. List of witnesses examined on behalf of the Accused:
DW-1 : Smt.Malini K.K
4. List of documents exhibited on behalf of the Accused: {Marked through PW1} 29 C.C. No.28688/2014 J Ex.D-1 : Certified copy of the Legal Notice;
Ex.D-2 : Certified copy of the Reply notice; Ex.D-3 : Certified copy of the Bank Challan; Ex.D-4 & D-5 : Certified copy of the Mobile Details; Ex.D-6 : Certified copy of the Chief Examination affidavit;
Ex.D-7 : Certified copy of the Cross examination of PW-1;
Ex.D-7(a) : Relevant Entry.
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.
30 C.C. No.28688/2014 J
9.1.2017
Judgment pronounced in the open court
vide separate order.
ORDER
By exercising the power
conferred u/s 265 of Cr.P.C., the
Accused is hereby acquitted of
the offence punishable u/s 138
of Negotiable Instruments Act.
Her bail bond and surety
bond stands cancelled.
XVI A.C.M.M., Bengaluru.