Bangalore District Court
Varna.J.V vs M.Rekha on 3 April, 2018
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 3rd day of April - 2018
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.30689/2014
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Varna.J.V,
W/o.Dhananjaya Reddy,
Aged about 32 years,
R/at No.44, Ekadantha Nilaya,
17th (A) Cross, Jnana Bharathi
Layout, Nagadevanahalli, 2nd Stage,
Bengaluru-56.
(Rep. by Sri.Hanumantha Reddy.Y,
Advocate)
V/S
Accused : M.Rekha,
W/o.Nagaraj,
Aged about 36 years,
Building No.53,
Door No.HIG-B-4-13,
KHB Colony, Shirke,
Kengeri Upanagar,
Bengaluru-60.
(Rep.by Sri.Jayarama,
Advocate)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.30689/2014
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 03.04.2018.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 27.09.2014 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque of Rs.10 lakhs.
2. In the complaint, the facts raised by the complainant in brief is as follows:
The complainant knows the accused since several years, and accordingly, in the month of September, 2013 she had approached her to provide the financial assistance of Rs.10 lakhs for purchase a house as she was in financial crisis. The complainant believing the words of the accused, disbursed the said loan amount to the accused of Rs.10 lakhs by way of cash in the month of September, 2013 and she has created a liability, and she undertakes to repay the same within one year. Subsequently, she failed to pay the said money, thereafter, the complainant made repeated requests to the accused, Judgment 3 C.C.30689/2014 then she issued the post dated cheque bearing No.430434 dated:01.08.2014 drawn for Rs.10 lakhs, drawn on State Bank of Mysore, Kengeri Satellite Town Branch, Bengaluru, in favour of the complainant, towards repayment of loan amount.
The complainant has further contended that, at the instruction of the accused, she presented the said cheque with her banker by name Canara Bank, Kengeri Satellite Town Branch, Bengaluru, on 16.08.2014 the same got retuned with a shara "Funds Insufficient".
Thereafter, the complainant without any alternative got issued the legal notice through her counsel by R.P.A.D on 01.09.2014, calling upon her to pay the money covered under the cheque and the said notice was returned unserved on 13.09.2014 with shara stating "Door Lock 2nd Intimation delivered". Despite that, the complainant neither paid the money nor gave reply, thereby, the accused committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, the then presiding officer took the cognizance and got registered the PCR and recorded the sworn statement. Since, made out prima-facie grounds Judgment 4 C.C.30689/2014 to proceed against the accused for the alleged offence, got issued process by registering the criminal case in register No.III.
4. In response to the summons, the accused appeared through her counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, plea was recorded, wherein, she denied the allegations made against her and claimed to have the defence.
5. Thereafter, to substantiate the case of the complainant, she himself choosen to examined as PW.1 and got marked Exs.P1 to P6. The PW.1 was also subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was read over and explained and statement recorded under Section 313 of Cr.P.C, wherein, the accused denied the same and the answer was given by her is recorded. In support of the defence, the accused herself was examined as DW.1 and other witnesses by names Shanthamma and Nagaraj were examined as DW.2 and DW.3, and they also subjected for cross-examination by the advocate for the complainant.
Judgment 5 C.C.30689/2014
7. Both side counsels have addressed their arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves that, she complied all the mandatory provisions to maintain the present case?
2) Whether the complainant proves beyond the reasonable doubt that, she lent sum of Rs.10 lakhs to the accused in the month of September 2013, and for the repayment of the same, the accused got issued Ex.P1 cheque bearing No.430434 dated:01.08.2014 drawn for Rs.10 lakhs, drawn on State Bank of Mysore for due discharge of existing legally enforceable debt?
3) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
4) 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 : In the Negative Point No.4 : As per final order, for the following:Judgment 6 C.C.30689/2014
REASONS
10. POINT NOs.1 to 3: Since these three points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 in her substantial evidence filed by way of affidavit narrating the complaint averments in toto, and got marked documents at Exs.P1 to P6, they are:
a) Ex.P1 is the cheque No.430434 issued by the accused for sum of Rs.10 lakhs, dated:01.08.2014 drawn on State Bank of Mysore.
b) Ex.P1(a) is the signature of accused.
c) Ex.P2 is the Bank Memo dated:16.08.2014.
d) Ex.P3 is the Legal Notice dated:01.09.2014.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the unserved postal cover stating door lock 2nd intimation delivered.
g) Ex.P6 is the certified copy of agreement of sale dated:20.04.2015 held between K.Nagaraju and Vani.A.C.
11. The PW.1 was subjected to the cross-examination by the advocate for the accused in detail.
12. In order to prove the defence of the accused, she herself choosen examined as DW.1. In support of her defence the accused Judgment 7 C.C.30689/2014 got examined two witnesses as DW.2 and DW.3, and got marked documents at Exs.D1 to D5, they are:
a) Ex.D1 is the Certified copy of Sale Deed dated:30.10.2012 executed by one Patil Mallesh Gowda in favour of K.Nagaraju.
b) Exs.D2 to D5 are the ITR-V, Indian Income Tax Returns Verification Forms for the assessment year 2010-11 to 2014-15 pertaining to the husband of accused.
Apart from lead defence evidence, the DW.1 through her counsel has produced the citations and relied upon same. They are:
a) 2015 CRL.L.J.912
b) 2002 SCC (Cri) 14
c) ILR 2008 KAR 4629
d) 2013 (3) KCCR 1940
e) 2012 (1) AIR Kar R 389
13. Apart from denial of plea as well as 313 statement, in support of the defence of the accused, herself choosen to examined as DW.1, wherein, by filing the affidavit contended that, she not borrowed the alleged loan from the complainant and not issued the Ex.P1-cheque for discharge of any legally enforceable debt payable to the complainant. The DW.1 further contended that, the complainant was carrying on chit business since 2010 and herself and her friends by name B.R.Shantha, Jayamma, Manjusheela and Judgment 8 C.C.30689/2014 others were members to the said chit and the DW.1 was subscribed for two chits for sum of Rs.1,25,000/- each, so run by the complainant. Accordingly, she was regular in payment of monthly subscription and successfully bid the chit. The DW.1 became entitled for chit amount, when she demanded, the complainant to pay the money, then the complainant obtained the blank cheque from the accused without filled. After closure of the said chit business, inspite of request made by the complainant, she not returned the same, but she vacated her house without returning the said cheque.
14. The DW.1 further contended that, the Ex.P1-cheque was issued by her in blank as a security to the chit transaction and the complainant by filling the same without the knowledge of the accused filed the false case. The DW.1 further contended that, she never took money for purchase the property bearing No.13, HIGB- 4, Ground Floor, Block No.53, situated at Nagadevanahalli, Bengaluru, but the said property was purchased by the husband of the accused on 30.10.2012 by mortgaging the said property for sum of Rs.14,80,000/- to the Janatha Co-operative Bank Limited. Judgment 9 C.C.30689/2014
15. The DW.1 further contended that, with a ulterior motive, to cause wrongful loss to the accused and making unlawful gain, herself filled the cheque and got dishonoured and the same is not legally enforceable debt. The complainant paying the said huge amount of Rs.10 lakhs as loan to the accused is improbable and the same is unaccounted amount is not enforceable debt. But, she misusing the blank cheque filed the false case. The notice issued by the complainant never served on her and she never took any loan from the complainant, and the complainant being a house wife has not financial capacity to lend the said huge amount. The husband of the accused is doing business and getting the income of Rs.4,05,000/- per annum, from his business and hence he taken the loan from the complainant does not arise. Therefore, prayed to acquit her.
16. The DW.1 was subjected for cross-examination. In support of her claim, she choosen to examined the DW.2 and DW.3, in their oral evidence, they have almost commonly contended that, they new the complainant and accused, and the complainant was doing the chit business, wherein, the DW.2 and DW.3 were subscribed for the chit of Rs.1,25,000/- each, the DW.2 subscribed one chit and Judgment 10 C.C.30689/2014 the DW.3 subscribed 2 chits for the said sum. The DW.2 bid the said chit for sum of Rs.58,000/- and the DW.3 bid the 2 chits for Rs.65,000/- and at that time for repayment of the chit money, the complainant took the signed blank cheques from them. The said blank cheques were not returned by the complainant to the DW.2 and DW.3. Therefore, the DW.2 lodged complaint before the Kengeri Police Station, at that time, the complainant vacated the said house and still she does not know the correct address. Not only, the DW.2 and DW.3, it is more than 25 members were subscribed the chit under the complainant along with the accused. The DW.2 and DW.3 have deposed that, the complainant not returned the cheques to them and even to the accused. The accused never borrowed the loan of Rs.10 lakhs from the complainant and issued the questioned cheque to the complainant for re-payment of the said loan. They were very much present at the time of issuing the Ex.P1-cheque to the complainant as a security to the chit business of the complainant.
In a decision reported in 2010 (2) DCR 80 Karnataka High Court (Matheson Bonsanquet V/s. K.V.Manjunatha). Wherein the Hon'ble Court held that:
Judgment 11 C.C.30689/2014
"In a criminal case, the complainant has to prove beyond the reasonable doubt in his case against the accused as alleged in his complaint but not a case which is contrary to one alleged in the complaint. Further, it is also held that, cheque was issued as security for performing his part of contract entered into between himself and the complainant and further it is also not the case of the complainant that, the accused did the breach of contract then no offence arises under Section 138 of Negotiable Instruments Act".
The principle of law laid down in the above decision is aptly applicable to the case on hand.
17. No doubt, in the present case, in the cross-examination, apart from deposing as such, they have also deposed that, the DW.1 do not know about the monetary transaction held between the complainant and accused. But specifically contended that, the questioned cheque was issued by the accused as a security for the chit transaction. In order to prove the contrary to the testimony of DW.1 and DW.2, the complainant not choosen to produce any documents stating that, it is the accused did the chit business, wherein, she and others were subscribers. Even, no suggestion was made to the DW.2 in that regard. Therefore, the evidence of DW.1 to DW.3 smelt something regarding the other transaction then the Judgment 12 C.C.30689/2014 questioned loan transaction. The accused, has taken the specific defence, contrary to the statutory presumptions required under Section 118 and 139 of Negotiable Instruments Act. Therefore, it is the reverse burden on the complainant to demonstrate her case, as she projected beyond the reasonable doubt. In that backdrop, it is just and proper to appreciate the materials and evidence of PW.1.
18. On going through the legal notice, complaint averments as well as evidence affidavit, the complainant being a house wife, how she has mobilized Rs.10 lakhs as on the date of alleged issuance of loan is not been explained. Wherein, the date of approached as well as alleged lent to the accused is also not specific. Though, not whispering any specific date, regarding the approach made by the accused for borrowing of loan during the course of her cross- examination she deposed that, the alleged loan transaction talk made in the house of the complainant at Shirke. Even she deposed that, at one stretch she gave Rs.10 lakhs to the accused. In order to show that, how she has gathered the said money, she deposes that, Rs.10 lakhs in her own money and the same has received from the income of the property situated at Chitradurga. The said property was leased out for Rs.2,50,000/- and his brother Raghavendra look Judgment 13 C.C.30689/2014 out the matter and he handed over the said money of Rs.2,50,000/- to her since 6 to 7 years. Apart from she contending the same, she also contended that, her father and mother were also gave money and she collected the same and made Rs.10 lakhs and handed over to the accused. In order to show that, she mobilized Rs.10 lakhs out of the leased out the land at Chitradurga, she not choosen to produce any documents in order to substantiate her contention. If at all, the major portion of the amount she gathered by way of leased out her property for Rs.2,50,000/- per month and collected the said money since 6 to 7 years through her brother Raghavendra from Chitradurga definitely, she has no impediment to produce the same. The production of the said documents at least to show that, the said properties are existed, it requires to produce the same as the accused straightaway harping on the financial capacity of the complainant to lend the said huge amount.
It is a relevant to cite the decision reported in, KCCR 12 (3) page 2057, the Hon'ble Apex Court held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the Judgment 14 C.C.30689/2014 financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
It is relevant to cite the another decision reported in Criminal Appeal No.2402 of 2014, between K.Subramani V/s K.Damodara Naidu, the Hon'ble Apex court held that:
"The Hon'ble Apex Court confirmed the Judgment of Trial Court acquitting the accused on the ground of capacity to pay the amount of cheque. In the above said ruling the Trial Court acquitted the accused on the ground that the complainant had no source of income to lend sum of Rs.14,00,000/-. In the appeal the 1st Appellate Court set aside the order and remanded the matter to the Trial Court to give an opportunity to complainant to prove the same. The accused went in appeal before the Hon'ble Apex Court and the Hon'ble Apex Court has set aside the order of the 1st Appellate Court and upheld the acquittal order passed by the Trial Court".
19. In the present case on hand, from the suggestion made from rival parties through out the case, it discloses that, the complainant and accused are residing in a rented house. When such being the fact, how they have gathered the said Rs.10 lakhs, despite having a several expenses is not been explained by her. No doubt, in this case, the accused made counter attack, the PW.1 herself has deposed that, since the accused and her husband running the chit Judgment 15 C.C.30689/2014 business along with real estate business, she came to know the accused. It is not her contention that, she was subscribed the chit with the accused. Though, contended so many persons were subscribed, nothing as elicited from the mouth of DW.1 and 2 with regard to the accused has running the chit business. Since, there is no allegations of the complainant that, accused is running the chit business, wherein, the complainant was participated does not arise, therefore the said testimony of PW.1 no where assist the case of the complainant.
20. Contrary, it was the clear cut evidence of the accused that, she never borrowed the loan from the complainant of Rs.10 lakhs for purchase the house, but her husband prior to the alleged loan transaction, had purchased the house property as per the registered sale deed dated:30.10.2012. Therefore, there was no need to her to borrow the loan from the complainant. To that effect, she has produced the registered sale deed dated:30.10.2012. On meticulous reading of the said documentary evidence available on record, it clearly manifest that, the husband of the accused from one patil Mallesh Gowda had purchased the immovable property bring residential tenement bearing No.13, HIG B4, Ground Floor, Block Judgment 16 C.C.30689/2014 No.53 for the sale consideration of Rs.14,30,500/-. When the husband of the accused already purchased the property much earlier to the alleged borrowing of loan in the month of September, 2013, how the complainant has contending as such, for the purchase of house, the accused borrowed the loan from her is clearly created doubt in the mind of the court. It is not the contention of the complainant that, the accused has purchased another house apart from the property described at Ex.D1, under such circumstances; it is her to demonstrate that for purchase of the property at Ex.D1 she lent the loan. When the sale deed is much earlier prior to the alleged borrowing loan, definitely, she gave money for purchase the same is highly impossible. Therefore, it is her to demonstrate that, Rs.10 lakhs has been paid by her for purchase the house. Since, Rs10 lakhs is huge, it is her to demonstrate, how she disburse the said money without verifying the purpose of borrowing loan is it possible to common lady to lent sum of Rs.10 lakhs as hard cash, it discloses that, there is no substance in the contention of the complainant. But she made a chance to workout her idea, but she fails to demonstrate that, for purchase the house the accused borrowed the loan. When the complaint and other documents including her evidence has fails to demonstrate on which date the Judgment 17 C.C.30689/2014 accused approached her and when she disbursed the said loan. If at all, the accused required the said huge amount as loan definitely, she could have approached the public bank sector. When the complainant is not doing any money business, what was the necessity to her, without making her condition suitable for residence etc., why she compel to pay the said loan is clearly created doubt regarding the very genuineness of transaction put forth by the complainant.
21. The PW.1 has contended that, the accused undertakes to pay the money within one year. Can any person lend the Rs.10 lakhs of huge amount to others without any interest or profit is not explained by the complainant. When the accused is not a relative of the complainant or friend or any close relationship, how it possible to the complainant to lend the huge amount of Rs.10 lakhs to the accused without any benefit is also one of the suspicious circumstances regarding the genuineness of the transaction put forth by the complainant.
22. The complainant has contended that, despite she promised to clear the money within one year, not paid the money, subsequently she approached the accused, than she issued the post dated cheque Judgment 18 C.C.30689/2014 by mentioning the date 01.08.2014 and directed her to present it after three days. From which, it also made clear that, if loan was lent in the month of September, 2013, one year has to be lapsed after August, 2014. After the August only the complainant has to approach the accused for demanding the said money, but before the lapse of one year, she asked the accused to repay the said money and in turn, she issued the post dated 01.08.2014 cheque is also unbelievable. In this case, the accused has taken the contention that, the said cheque was issued to the accused as security in blank, but after finishing he chit transaction inspite of the return the said cheque to the accused, she not returned the same and misused by say of filing the instant case. It is pertinent to note that, to show that, the PW.1 was doing chit business, apart from suggestion her in her cross-examination, she choosen to examine herself as well as one of the chit subscriber DW.2 and her husband. The evidence of DW.1 to 3 clearly discloses that, apart from the accused, DW.2, Teja, Channa, Ramesh, Kumar, Vijaya are also subscribed the chit. Among the subscribers, the DW.2 is choosen to examined and she stated that, Ex.P1-cheque was issued in blank to the complainant as security. The evidence of DW.1 to DW.3 also reveals the said fact. Mere suggestion made by the complainant is not enough; the Judgment 19 C.C.30689/2014 accused has taken all the probable defence. But, it does not require the accused to prove her defence beyond the reasonable doubt. But, she has taken probable defence and demonstrates her case. But, it is the complainant has to establish her case beyond the reasonable doubt. The evidence of DW.1 also clear that, she purchased the property as per Ex.D1. There was suggestion made to DW.3, the complainant is residing in her own flat at KHB Platinum Apartment. If, really she resides in the said address, why the said address has not been mentioned in the cause title nor produce any document to show her ownership. It was the suggestion made by the accused that, the PW.1 is not having the financial capacity and inspite of return the cheque to the accused as well other subscribers, the complainant left the earlier address at Shirke to some other address. Therefore, it is her to establish her residential proof, in order to establish her contention. When the complainant, herself not produced any document to show that, where she exactly reside, then she paying the sum of Rs.10 lakhs to the others is also difficult to accept.
23. It is the contention of the accused that, legal notice at Ex.P5 was not served on her. The said legal notice endorsed by the postal Judgment 20 C.C.30689/2014 authority stating that, the addressee absent, door lock, 2nd intimation delivered. The PW.1 in her cross-examination also deposed that, the said R.P.A.D returned unserved stating door lock. The said R.P.A.D discloses that, intimation delivered on 02.09.2014 and 03.09.2014. The address of the accused made mentioned in the Ex.P5 as well as complaint discloses one and the same. In order to show that, she is not residing in the said address, she has not furnished any separate address. But, to show that, her husband has purchased the property at Ex.D1, she has not produced any other documents. Whether, the accused was residing in the cause title address or the address at Ex.D1 is to be looked into. The accused in her self served affidavit mentioned the different address stating reside at Door No.14, 4th Cross, Kempegowda Layout, Nagadevanahalli, Bengaluru. The said address has not been disputed by the complainant, during the course of cross- examination. But, during he course of cross-examination of DW.1, it was the suggestion made to her that, whatever the land purchased by the husband of the accused was leased out to one Ramakrishna. The said suggestion was denied by the accused, but she not stated, whether she is residing in the said address are not. The accused to show that, she is residing in the address of mentioned in her Judgment 21 C.C.30689/2014 affidavit not produced any document. But, from the documents at Ex.P5, complaint, Ex.D1 as well as affidavit of DW.1, it made clear that, the accused is not residing in the cause title address. The fact that, earlier she was residing in the said address is not disputed by the accused. When she vacated the said address and whether she was there at the time of issuing the legal notice is not explained by her. The said R.P.A.D was retuned stating 'door lock intimation delivered'. Therefore, the intimation delivered is none other than to the family members of the accused. As per Section 138(b) of Negotiable Instruments Act, it mandates that, the legal notice shall be given in writing to the drawer of the cheque. The said legal notice was not served on the accused. The service of the said notice is warranted. Whether, at the time of issuance of said notice, accused was residing in the said address, and the postal authority has made wrong entry, the complainant not choosen to enquired the concerned postman. The legal notice required to be served personally. The complainant could have opportunity to send the notice by certificate of posting or speed post or by courier as required under Section 144 of Negotiable Instruments Act. Without adopting any other mode, straightaway issued the R.P.A.D, the same also got returned the addressee absent. The addressee Judgment 22 C.C.30689/2014 absent indicates that, the accused was not in the house and notice was not served on her. Therefore, she is excepted to give reply to the said notice does not arise. From the point of Section 138(b) of Negotiable Instruments Act also the complainant has not complied the mandatory requirement.
24. Even, the PW.1 deposed that, at the time of she lent Rs.10 lakhs to the accused, her mother, husband and children along with the accused and her husband were present. But, when her case itself is shaky, she not choosen to examine any other witnesses to substantiate her contention. Though, the PW.1 has projected her case, the accused approached in the month of September, 2013 and she lent the alleged loan in the said month itself, but during her cross-examination she deposed that, "PÉÆ£ÉAiÀÄ ¨Áj PÉù£À ¸Á®ªÀ£ÀÄß ¥ÀqÉAiÀÄ®Ä r¸ÉA§gï 2012 gÀ°è §A¢zÀÝgÀÄ". The said self served testimony of PW.1 itself is goes against her own pleadings as well as case put forth through out. She has not whispered anything about, the accused at the last time approached in the month of December, 2012 for borrowing the said loan. From which, it made clear that, the complainant has filed the present case as chance though there was no monetary transaction held as alleged between Judgment 23 C.C.30689/2014 the complainant and accused. Even, the complainant has no monetary capacity to pay the said huge amount as loan without any substantial documents. From the reading of the cheque at Ex.P1, it also discloses that, the signature is together different from other writings including name, date and money. From which, it can gathered the accused has not filled the other particulars within the signature, therefore, it is the complainant has to demonstrate. Overall, appreciation of the materials available on record, it made this court that, the complainant without any base and transaction filed the case against the accused. There was no monetary transaction has held between the complainant and accused for the tune of Rs.10 lakhs. Including the reasons assigned for borrowing of loan, and issuance of cheque itself is doubtful. Totally, the complainant has utterly fails to prove her case beyond the reasonable doubt, even hit the compliance of Section 138(b) of Negotiable Instruments Act is not made. Therefore, it is fit case to acquit the accused, as the complainant fails to demonstrate her theory.
25. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very Judgment 24 C.C.30689/2014 claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
In a decision reported in 2010 (2) DCR 80 Karnataka High Court (Matheson Bonsanquet V/s. K.V.Manjunatha). Wherein the Hon'ble Court held that:
"In a criminal case, the complainant has to prove beyond the reasonable doubt in his case against the accused as alleged in his complaint but not a case which is contrary to one alleged in the complaint. Further, it is also held that, cheque was issued as security for performing his part of contract entered into between himself and the complainant and further it is also not the case of the complainant that, the accused did the breach of contract then no offence arises under Section 138 of Negotiable Instruments Act".
The principle of law laid down in the above decision is aptly applicable to the case on hand.
In a decision reported in ILR 2006 KAR 3579, (M/s. Sathavahana Ispat Ltd., V/s. Umesh Sharma and another). Wherein, the Hon'ble High Court of Karnataka clearly held that: Judgment 25 C.C.30689/2014
"The cheque issued in respect of uncertain future liabilities would not attract prosecution under Section 138 of Negotiable Instruments Act, though the right to recover the amount in a Civil Forum will not get affected".
The principle of law laid down in the above decision is also applicable to the facts of the case.
Further in a decision reported in ILR 2008 KAR 4629 (Shiva Murthy V/s. Amruthraj). Wherein, the Hon'ble Court held that:
"On the date of the cheque, if no consideration was paid or if a loan was taken on a particular date and in discharge of the same the cheque was issued on the later date, then the presumption under Section 118(a) of the Negotiable Instruments Act stands rebutted".
26. The principles of law laid down in the above decisions also applicable to the facts of the case. In the instant case, as appreciated above, it clearly manifested that, without any obligation from the side of the accused, as well as without narrating proper grounds, as to how, accused is liable to pay amount covered under the cheque alleged to be issued by the accused is also not demonstrated by the complainant satisfactorily. On the contrary, it can presume that, the said cheque was possessed by the Judgment 26 C.C.30689/2014 complainant from the unexplainable source, and falsely projected the case and failed to prove the same. Hence, there is no question of drawing presumption under Section 118(a) or 139 of the Negotiable Instruments Act, even though the signature in Ex.P1 is admitted by the accused. Just because, the cheque bares the signature of the accused, that, will not mandate the court to draw the presumption under Section 118 of Negotiable Instruments Act.
At this stage, this court relies upon 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".
27. 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. Judgment 27 C.C.30689/2014
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act - Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
28. 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.10 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act. Judgment 28 C.C.30689/2014
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
29. 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.10 lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and she is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken her defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.10 lakhs. Judgment 29 C.C.30689/2014 Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Apart from that, in a decision reported in, KCCR 12 (3) page 2057, the Hon'ble Apex Court held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
30. In the case on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show her financial capacity to lend an amount of Rs.10 lakhs to accused. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheque for discharge of Rs.10 lakhs does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.10 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 30 C.C.30689/2014
31. From the above elaborate discussions, it is 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.
32. Basically, insertion of the penal provision under Section 138 of the Negotiable Instruments Act, 1881, is to maintain a healthy business transaction between the people based on faith, belief and understanding. That is why; the drawer of a cheque should not be allowed to abuse the accommodation given to him by a creditor. At the same time, the payee or holder of a cheque cannot be permitted to use that, penal provision under law as a weapon for unlawful gain or to harass the debtor. To initiate a penal action under Section 138 of Negotiable Instruments Act, against a drawer of cheque, there should not be any kind of lapse or lacuna on the part of the holder of a cheque. Because, the proceeding under Section 138 of Negotiable Instruments Act is not for recovery of money, but to punish a dishonest and incredible debtor, who intentionally tries to escape from his liability. That is why; it is the duty of the Judgment 31 C.C.30689/2014 complainant in a given case under the Negotiable Instruments Act, 1881, to place a stable and firm case on his behalf before the court. When the case of the complainant itself is shaky, unstable, untrustworthy and doubtful one, then in the option of this court, presumption that, is available under law will come to his help. In the case on hand, the accused has taken several contentions before the court and made out grounds to show that, the case of the complainant is highly improbable.
33. From the careful appreciation material evidence on record, it is very much clear that, without there being any money transaction between the complainant and accused, only with an intention causing harm to the accused, the complainant has lodged the instant complaint before this court and no independent evidence adduced to prove the alleged transaction set up by it, that too, in case like 2014. There is no material piece of evidence produced by the complainant before this court to substantiate it.
34. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Judgment 32 C.C.30689/2014 Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
35. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Section 138 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove is contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.10 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 its case beyond Judgment 33 C.C.30689/2014 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 to 3 are Negative.
36. Point No.4: In view of my findings on point Nos.1 to 3, 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 surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 3rd day of April - 2018) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Varna Judgment 34 C.C.30689/2014 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 : Unserved postal cover Ex.P6 : CC of agreement of sale
List of Witnesses examined on behalf of the defence:
DW.1 : M.Rekha DW.2 : Shanthamma DW.3 : Nagaraju
List of Exhibits marked on behalf of defence:
Ex.D1 : CC of Sale deed
Exs.D2 to D5 : ITR-V Income tax return verification forms
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 35 C.C.30689/2014
03.04.2018.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide
separate order.
*****
ORDER
Acting under Section 255(1) of Cr.P.C. the
accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.