Bangalore District Court
On Perusal Of Ex.P.12 vs Knew Each Other. On Perusal Of The ... on 25 October, 2021
1 CC.19594/2018 (J)
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 25th Day of October2021
Present: Lokesh Dhanapal Havale. B.A.L.L.B.,
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.19594/2018
2.Name of the Complainant: Zareen Taj,
W/o.Parveez Khan,
Aged about 48 years,
R/at Sultan Palya Main Road,
R.T.Nagar, Kanakanagar,
Bangalore32.
3.Name of the accused: 1. Mani P.
S/o.Parameshwaran,
R/at 2nd Floor Sripada
Enclave Yelachenahalli,
Bangalore560 062.
2. Jayamma,
W/o.Mani P.
R/at 2nd Floor Sripada
Enclave Yelachenahalli,
Bangalore560 062.
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(1) Cr.P.C., accused
No.1 and 2 are acquitted.
7.Date of final Order 25.10.2021.
***
2 CC.19594/2018 (J)
This complaint is filed U/Sec.200 of Cr.P.C. against the accused
for the offence punishable U/Sec.138 of the Negotiable Instruments
Act, 1881.
2. The facts of the complaint in brief are as under:
The complainant is the house wife and the accused No.1 and 2
are husband and wife. The accused No.2 is the owner of the property
situated at Eshwari Enclave, S Block, No.4, STF Floor, Kananka Nagar,
R.T. Nagar, Bengaluru32. The accused No.1 and 2 were looking for
tenant for their property and they approached the complainant
requesting her to take the property on lease. She agreed to take the
property on lease. They requested her to give Rs.10,00,000/ as lease
advance. She paid the lease advance of Rs.4,50,000 by way of two
cheques of Rs.1,50,000/ and they withdrew the amount on
12.12.2016 and 14.12.2016. She paid Rs.1,50,000/ by way of cash to
them after 15 days. She agreed to give remaining amount at the time of
taking possession of the property. They failed to give possession of the
property and dragged the matter on one or other reason. They stated
that they are not ready to give the property on lease. The accused
agreed to repay the amount of Rs.4,50,000/ and issued 3 post dated
cheques pertaining to the account of accused No.1 bearing the cheque
Nos. 000047, 000048 and 000049 dated 09.05.2018 for Rs.1,50,000/
each totally amounting to Rs.4,50,000/ drawn on the Bank of Baroda,
ISRO Layout Branch, Bengaluru in her favour. She presented the
cheques for encashment through her banker Syndicate Bank, Sultan
Palya Branch, Bengaluru. The cheques were dishonored with shara
"Funds Insufficient" on 02.06.2018. It was intimated to the accused but
he failed to make the payment. She issued the legal notice to the
3 CC.19594/2018 (J)
accused on 05.06.2018 and it was returned unserved with shara 'no
such person in this address' and the copy of it was sent to the
WhatsApp and it was received by them. Even after expiry of 15 days,
the accused did not pay the amount. Hence prayed to punish the
accused and compensate the complainant.
3. After the institution of the complaint, cognizance was
taken and the case was registered as PCR No.9652/2018. The sworn
statement of the complainant was recorded and on the basis of sworn
statement and other materials on hand, the criminal case was
registered against the accused and summons was issued to them. In
response to the service of summons, they appeared through their
learned counsel and got enlarged on bail. The prosecution papers
supplied to the accused No.1 and 2 and the substance of accusation for
the offence punishable U/s.138 of Negotiable Instruments Act was read
over to the accused No.1 and 2. They pleaded not guilty and claimed
to be tried.
4. During trial the complainant examined as PW1 and got
marked Ex.P.1 to P.14. The statement of the accused U/s. 313 of
Cr.P.C. was recorded. The accused No.1 lead defence evidence and
examined as DW1 and got marked Ex.D.1 and D.4.
5. I have heard the argument of both learned counsels and
perused the entire materials. The following points would arise for my
consideration.
4 CC.19594/2018 (J)
1. Whether the complainant proves that the accused
No.1 issued cheques bearing Nos. 000047, 000048
and 000049 dated 09.05.2018 for Rs.1,50,000/
each totally amounting to Rs.4,50,000/ drawn on
the Bank of Baroda, ISRO Layout Branch, Bengaluru
in her favour towards the discharge of legally
enforceable debt/liability and on their presentation
for encashment, they were dishonored with an
endorsement of "Funds Insufficient" in the account
maintained by the accused No.1 and the accused
have not paid the amount even after 15 days from
the date of service of notice and thereby accused
committed an offence punishable U/Sec.138 of N.I.
Act, 1881 ?
2. Whether the accused No.1 and 2 rebuts the
presumption U/s.139 of N.I.Act?
3. What order?
6. My answers to the above points are as under.
Point No.1 : In the Negative
Point No.2 : In the Affirmative
Point No.3 : As per final order for the following;
REASONS
7. Point No.1 & 2: The points are taken together for discussion
to avoid repetition of facts and evidence. At this juncture, it is necessary
5 CC.19594/2018 (J)
to go through the provisions of N.I.Act before proceeding further. The
provisions under Section 118(a) and 139 of the Act., 1881 are
extracted and they reads thus;
"118. Presumptions as to negotiable
instruments. - Until the contrary is proved,
the following presumptions shall be made:
(a) of consideration - 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.
(b) as to date: that every Negotiable
Instrument bearing date was made or drawn
on such date;
"139. Presumption in favour of holder.
It shall be presumed, unless the
contrary is proved, that the holder of a
cheque received the cheque of the nature
referred to in section 138 for the discharge,
in whole or in part, of any debt or other
liability."
8. On plain perusal of the provisions under Section 118(a)
and 139 of the N.I.Act., as extracted herein above, it can be seen that
initially the presumptions constituted under these two provisions
6 CC.19594/2018 (J)
favour the complainant. However, it is open to an accused to raise a
defence to rebut the statutory presumptions. An accused can raise a
defence, wherein the existence of legally enforceable debt or liability
can be contested.
9. It is also well established that an accused for discharging
the burden of proof placed upon him under a statute need not examine
himself. He may discharge his burden on the basis of the materials
already brought on record. An accused has constitutional rights to
maintain silence. Standard of proof on part of the accused and that of
the prosecution in a Criminal case is different. The prosecution must
prove the guilt of an accused beyond all reasonable doubts, the
standard of proof so as to prove a defence on the part of an accused is
"Preponderance of probabilities".
10. Under the light of above extracted provisions of the Act, I
have perused the oral and documentary evidence on record. In order to
prove her case the complainant examined herself as PW.1 and got
marked Ex.P.1 to P.14. Ex.P.1 to 3 are the cheques bearing Nos.
000047, 000048 and 000049 dated 09.05.2018 for Rs.1,50,000/ each
totally amounting to Rs.4,50,000/ drawn on the Bank of Baroda, ISRO
Layout Branch, Bengaluru in favour of the complainant and Ex.P.1(a)
to Ex.P.3 (a) are the signatures of the accused No.1 on the cheques.
They did not bear the signatures of accused No.2 and the account is
only pertaining to the accused No.1 as averred in the complaint.
Therefore the accused No.2 is not the drawer of the cheques. Ex.P.4 to
6 are the Bank endorsements dated 02.06.2018, which were issued
7 CC.19594/2018 (J)
with a Shara "Funds Insufficient". Ex.P.7 is the office copy of the
statutory notice dated 05.06.2018. Ex.P.8 and 9 are the Postal receipts
for having sent the statutory notice to the accused No.1 and 2 through
registered post. Ex.P10 and 11 are the Postal Envelopes, which have
been returned unserved with shara 'no such person in this address'.
11. Ex.P.12 is the statement of Bank account of the
complainant. On perusal of Ex.P.12, it is clear that on 12.12.2016 the
cheques issued by the complainant in favour of accused No.1 and 2 for
Rs.1,50,000/ each were not honoured and the complainant transferred
the amount of Rs.1,50,000/ each to the accused No.1 and 2 through
NEFT on 14.12.2016. ExP.13 and 13 (a) are the bank pass books of the
account of the complainant, which are similar to that of ExP.12, as they
are pertaining to the same account of the complainant. ExP.14 is the
copy of the WhatsApp for having sent the notice to the accused through
WhatsApp and ExP.14 (a) is the certificate filed by the complainant
U/s.65 B of Indian Evidence Act in support of ExP.14.
12. I have perused the exhibits on which the complainant has
placed her reliance. It is admitted fact that the complainant and
accused knew each other. On perusal of the exhibits, it is clear that the
cheques at Ex.P.1 to 3 bearing Nos. 000047, 000048 and 000049 dated
09.05.2018 for Rs.1,50,000/ each totally amounting to Rs.4,50,000/
drawn on the Bank of Baroda, ISRO Layout Branch, Bengaluru were
presented through the Bank within their validity for encashment and
the Bank issued endorsement as per Ex.P.4 to 6 on 02.06.2018 with
shara "Funds Insufficient". The complainant issued statutory notice
dated 05.06.2018 as per Ex.P.7 within time from the date of receipt of
8 CC.19594/2018 (J)
Bank Memos. On perusal of Ex.P.10 and 11, it is clear that the notice
was not served on the accused No.1 and 2. They disclose that the
postal envelopes returned unserved 20.06.2018 with shara "no such
person in this address, return to sender". The address of the accused
No.1 and 2 in the notice at Ex.P.7 is mentioned as R/o. 2 nd Floor, Sripad
Enclave, Yelachenahalli, Bengaluru 560062. The accused No.1/DW1
was crossexamined by the counsel for the complainant and it was
suggested to him that his address is 2 nd Floor, Sripad Enclave,
Yelachenahalli, Bengaluru 560062 and DW1 denied the address. The
accused No.1 also produced and got marked Bank Passbook as per
Ex.D.2 and Aadhar Card as per Ex.D.3 to show that his address is
No.1105, Ist Floor, 80 Feet Road, Kristal Dolomite, Narayananagar
Layout, Doddakallasandra Post, Bengaluru. On perusal of Ex.D.2, it is
found that the account was opened on the said address on 6.12.2014.
On perusal of Ex.D.3, it is found that the Aadhar Card was taken on the
said address on 08.01.2014. The counsel for the accused relied on the
Judgment of the Hon'ble Supreme Court of India in the case of Central
Bank of India and another Vs. Saxons Farms and others reported in
(1999) 8 SCC 221, wherein it was held that the service of legal notice
demanding repayment of the amount of cheque is a condition precedent
for filing the complaint U/s.138 of N.I.Act. The counsel for the accused
also relied on the Judgment of the Hon'ble High Court of Andhra
Pradesh in the case of C.S.Madhusudhan Vs.B.Eswaramma reported in
LAWS (APH) 2006 7 112, wherein the Hon'ble High Court Referred the
decision of Hon'ble Supreme Court in K. Bhaskaran Vs. Sankaran
Vaidhyan Balan reported in (1999) 7 SCC 510, wherein it was observed
as follows:
9 CC.19594/2018 (J)
If a strict interpretation is given that the drawer should have
actually received the notice for the period of 15 days to start running no
matter that the payee sent the notice on the correct address, a trickster
cheque drawer would get the premium to avoid receiving the notice by
different strategies and he could escape from the legal consequences of
Section 138 of the Act.
In the said case it was also observed as follows:
Burden is on the complainant to show that the accused managed to
get an incorrect postal endorsement made. What is the effect of it has to
be considered during the trail, as the statutory scheme unmistakably
shows the burden is on the complainant to show the service of notice.
Therefore, where the material is brought to show that there was false
endorsement about the non availability of notice, the inference that is to
be drawn has to be judged on the background facts of each case.
In the case on hand, the facts of the case and evidence, show
that the notice returned unserved. However on perusal of Ex.D.4,
which is the notice issued by the Court of Deputy Registrar of Co
operative Societies, Karnataka Cooperative Urban Banks Federation
Ltd., Bengaluru. It discloses that the notice was sent to accused No.1
and 2 to their address at Sripad Enclave, Yelachenahalli, Bengaluru
560062 on 26.08.2015. The documents disclose that the notice might
not have been sent to address of the accused No.1 and 2 as claimed by
them as per Ex.D.2 and D.3. However Ex.D.4 clearly shows that the
address mentioned in the complaint as well as notice is shown to be the
last known correct address of accused No.1 and 2. Further on perusal
of the order sheet, it is found that the summons was sent through Court
10 CC.19594/2018 (J)
and through RPAD on the same address and the accused No.1 and 2
appeared before the Court and obtained the bail. Therefore the notice
is deemed to have been served on accused No.1 and 2. Even otherwise
as per the Judgment of the Hon'ble Supreme Court of India in
Crl.Appeal No.767 of 2007 (Arising out of SLP (Crl) No.3910 of
2006 between CC Alavi Haji Vs.Palapetty Muhammed and
another decided on 18.5.2007, wherein it has been held by the Hon'ble
Supreme Court of India para No.17 as under;
17. It is also to be borne in mind that the
requirement of giving of notice is a clear departure from
the rule of Criminal Law, where there is no stipulation
of giving of a notice before filing a complaint. Any
drawer who claims that he did not receive the notice
sent by post, can, within 15 days of receipt of
summons from the court in respect of the complaint
U/s.138 of the Act, make payment of the cheque amount
and submit to the Court that he had made payment
within 15 days of receipt of summons (by receiving a
copy of complaint with the summons) and, therefore,
the complaint is liable to be rejected. A person who does
not pay within 15 days of receipt of the summons from
the Court along with the copy of the complaint
u/s.138 of the Act, cannot obviously contend that there
was no proper service of notice as required u/s.138, by
ignoring statutory presumption to the contrary u/s.27
of the G.C. Act and Section 114 of the Evidence Act. In
our view, any other interpretation of the proviso
would defeat the very object of the legislation. As
observed in Bhaskaran's case (supra), if the 'giving of
notice' in the context of Clause (b) of the proviso was
the same as the 'receipt of notice' a trickster
cheque drawer would get the premium to avoid receiving
11 CC.19594/2018 (J)
the notice by adopting different strategies and escape
from legal consequences of Section 138 of the Act.
In a nutshell it can be said that the statutory notice is an
opportunity given to the accused to make payment and avoid the
consequences of 138 of N.I.Act. In the case on hand, though the
summons was not properly served on the said address, the accused
No.1 and 2 had the knowledge of the proceedings and appeared before
the Court before issuance of NBW and contested the case by taking all
probable defences. Therefore they cannot take the shelter of statutory
requirement of service of notice to avoid the consequences of Section
138 of N.I.Act. Therefore, the documents on record clearly show that
the complainant has complied the ingredients of Section 138(a) and (c)
of the N.I.Act. That apart the notice was sent to the accused also
through WhatsApp as per Ex.P.14, though it was denied by them. The
complaint has been filed on 09.07.2018, which is within limitation. The
accused No.1 also admitted the cheques and signatures on the cheques.
Therefore, the documents on record clearly show that the complainant
has complied the ingredients of Section 138(a) to (c) of the N.I.Act.
Therefore the presumptions U/s.118 and 139 of the N.I.Act arise in
favour of the complainant. The presumptions are rebuttable and the
burden is on the accused to rebut the presumptions. Once the issuance
of cheque is proved, the presumption that arises under the aforesaid
section is in respect of the fact that the cheque was issued for legally
enforceable debt/ liability and actual existence of debt or liability can
be contested. The accused can rebut the presumptions by raising
probable defences and proving it relying on the evidence of the
complainant or by leading her direct evidence.
12 CC.19594/2018 (J)
13. It is pertinent to note that the accused No.1 issued the
cheques pertaining to his account. He is the drawer of the cheques at
Ex.P.1 to 3. On perusal of Ex.P.1 to P.3, the signature of the accused
No.2 is not appearing on the cheques. Even though it is considered that
the accused No.1 issued the cheques for the liability of both of them,
the accused No.2 could not be held liable as she is not the drawer of
the cheques. The Hon'ble Supreme Court India in its decision dated
08.03.2021 in Criminal Appeal No. 258 OF 2021 in the case of Alka
Khandu Avhad Vs. Amar Syamprasad Mishra & Anr, held at para
No.7 as under;
7. On a fair reading of Section 138 of the NI Act, before a
person can be prosecuted, the following conditions are required
to be satisfied: i) that the cheque is drawn by a person and on
an account maintained by him with a banker; ii) for the
payment of any amount of money to another person from out
of that account for the discharge, in whole or in part, of any
debt or other liability; and iii) the said cheque is returned by
the bank unpaid, either because of the amount of money
standing to the credit of that account is insufficient to honour
the cheque or that it exceeds the amount arranged to be paid
from that account. Therefore, a person who is the signatory to
the cheque and the cheque is drawn by that person on an
account maintained by him and the cheque has been issued for
the discharge, in whole or in part, of any debt or other liability
and the said cheque has been returned by the bank unpaid,
such person can be said to have committed an offence. Section
138 of the NI Act does not speak about the joint liability. Even
13 CC.19594/2018 (J)
in case of a joint liability, in case of individual persons, a
person other than a person who has drawn the cheque on an
account maintained by him, cannot be prosecuted for the
offence under Section 138 of the NI Act. A person might have
been jointly liable to pay the debt, but if such a person who
might have been liable to pay the debt jointly, cannot be
prosecuted unless the bank account is jointly maintained and
that he was a signatory to the cheque.
In the case on hand, the account pertaining to the cheques at
ExP.1 to P.3 is not joint account of the accused No.1 and 2. The
accused No.2 is not the drawer of the cheques and a person who is not
a drawer of the cheques can not be prosecuted for the offence
punishable U/s.138 of N.I.Act. Therefore no case is made out against
the accused No.2. Hence the accused No.2 has to be acquitted of the
offence punishable U/s.138 of N.I.Act on this ground itself.
14. The accused No.1 relied on the evidence of complainant as
well as led his defence evidence to prove his defence. It is the defence
of the accused No.1 that he asked for lending of loan of Rs.5 lakhs to
the complainant in December 2016 for the purpose of his business. The
complainant issued three cheques for Rs.1,50,000/each. He presented
two cheques out of the three cheques for encashment and both the
cheques were dishonored. He intimated the said fact to the
complainant. She transferred Rs.1,50,000/ to his account and
Rs.1,50,000/ to the account of his wife by way of NEFT. He had not
needed the amount and therefore he did not present the third cheque.
14 CC.19594/2018 (J)
He produced it before the Court as per Ex.D.1. He issued three cheques
for Rs.1,50,000/ each on the day when he received three cheques of
Rs.1,50,000/ each from the complainant. He repaid the amount during
the period from 15.02.2017 to August 2017. He transferred
Rs.1,03,000/to the account of complainant and he paid Rs.45,000/ on
10.03.2017, Rs.50,000/ on 04.04.2017, Rs.50,000/ on 05.04.2017,
Rs.40,000/ on 09.08.2017 and Rs.15,000/ on 15.08.2017 by way of
cash to the complainant. He asked for return of cheques and
complainant told that she could not find the cheques and she would
return after searching them. He did not take the amount from the
complainant for lease of the house. He purchased the house for Rs.25
lakhs from the Builder. The builder did not hand over the possession to
him. The bank took the possession of the house for non payment of
loan.
15. In order to prove his defence he examined himself as DW
1. Ex.D.1 was marked during the crossexamination of PW1 by way of
confrontation. On perusal of the Ex.D.1, it is clear that it is the cheque
issued by the complainant in favour of accused No.1 for Rs.1,50,000/.
The cheque is bearing No.603406 drawn on Syndicate Bank,
Ganganagar branch, Bengaluru. On perusal of Ex.P.12, which is the
Bank statement of complainant pertaining to Syndicate Bank,
Ganganagar branch, Bengaluru, it discloses that the cheques bearing
No.603403 and 603405 issued in favour of accused No.1 and 2 were
dishonoured on 12.12.2016. The series of the cheques issued to
accused as alleged by the complainant matches with the Ex.D.1.
However it was elicited in the crossexamination of PW1 that the
amount of Rs.4,50,000/ was paid through cheques and the two
15 CC.19594/2018 (J)
cheques have been honoured. There is entry in the Bank Passbook
about the honouring of the cheques and she can produce the Bank
Passbook. Later she admitted that the cheques given by her to the
accused were returned dishonoured on 12.12.2016. During the later
part of the crossexamination she denied that she gave three cheques
for Rs.1,50,000/ each to the accused for payment of Rs.4,50,000/.
When the cheque was confronted to her during her crossexamination,
she admitted the cheque and it was marked as Ex.D.1. Again she
denied that she gave three cheques including the cheque at Ex.D.1 to
the accused. Further it was elicited that the accused gave three cheques
to her in the last week of April 2018. However during the later part of
crossexamination, when it was asked to her that the accused No.1 gave
three cheques on the date, when she gave cheques for Rs.4,50,000/,
she answered that earlier two cheques were given and the accused gave
one cheque later. On perusal of the complaint, it is found that the
complainant averred that the accused issued post dated cheques
bearing the date 09.05.2018. However it is not averred in the
complaint about the date of issuance of cheques. Therefore the version
stated by the complainant is not believable and it creates doubt on the
transaction as alleged by the complainant. Therefore the defence of the
accused appears to be probable.
16. The counsel for the accused crossexamined PW1 in
respect of alleged lease of house of the accused. It is admitted by PW1
in the crossexamination that generally when the lease of any house is
made, it is made through a lease deed. When it was asked to PW1 that
she had no hurdle to get execute the lease deed, she answered that the
flat of the accused about to be given on lease was not vacant. When it
16 CC.19594/2018 (J)
was asked again that she did not had any hurdle to get execute
agreement in respect of the payment of amount, she answered that the
accused issued cheques. It was further elicited that she saw the flat
about to be given on lease. It is in front of her house and it is
comprising of two bed rooms, kitchen, dining hall and hall. The said
flat is in the name of accused No.2. She did not know whether she
produced the documents in that regard. She did not know that the
Bank has taken the possession of the flat in the year 2015. She did not
know that as per the order in case No.JRD/UBF No.590/201516, the
Bank took the possession of the flat in the year 2015. The answers
elicited in the crossexamination clearly show that she did not properly
enquire about the house of the accused. She would have answered the
questions specifically but she stated that she did not know about it. On
perusal of Ex.D.4, it is clear that the Court of Deputy Registrar of Co
operative Societies, Karnataka State Urban Banks Federation issued
summons to accused No.1 and 2 in respect of the case filed by Sir
M.Vishveshwaraiah Cooperative Bank, Shankarapuram Bengaluru
pertaining to recovery of loan amount of Rs.28,05,204/ on 26.08.2015
asking them appear before the Court on 23.09.2015. Therefore the
defence that the possession of the house of the accused by the Bank in
the year 2015 appears to be probable. Such being the case, it is not
believable that the transaction took place in respect of lease of the
house of the accused subsequently.
17. On the other hand, the accused admitted the issuance of
cheques for repayment of loan, dishonour of cheques and intimation by
the Bank in respect of the dishonour of the cheques in his cross
examination. It was suggested to DW1 that he did not pay the amount
17 CC.19594/2018 (J)
of Rs.1,03,000/ to the complainant by way of NEFT. The counsel for
the complainant crossexamined in respect of rent of house generally.
DW1 admitted that the rent is around Rs.10,000/, Rs.12,000/ and
15,000/ per month for the kind of house which belonged to him. It
was suggested to DW1 that as he could not give his house on lease to
the complainant, he agreed to pay the rent of the house of the
complainant and paid Rs.12,000/, which was denied by DW1 and he
clearly stated that there was no transaction in respect of lease of flat.
He admitted that as per the bank statement of the complainant, he
transferred Rs.93,000/ to the complainant but he denied that it was in
respect of rent of the house of the complainant. On perusal of the
notice and complaint, it is clear that the complainant did not mention
about either oral or written agreement in respect of payment of rent of
the house of the complainant on failure by the accused to lease their
house to the complainant. The complainant did not mention about the
payment received from the accused either in the notice or in the
complaint. No prudent man would agree with the stand taken by the
complainant as it was not taken at the earliest point in time and no
document adduced in support of the same.
18. It is the specific defence of the accused No.1 that he paid
the entire amount of Rs.3 lakhs by way of Bank transfer as well as by
way of cash. On perusal of Ex.D.2, it is clear that the accused No.2
transferred Rs.93,000/ to the account of complainant. The other
transactions shown in the Ex.D.2 could not be considered as the
payment to complainant as the amount was transferred to accused
No.2 and self withdrawn. No document has been produced to show
that the amount has been transferred from the account of accused No.2
18 CC.19594/2018 (J)
to the account of complainant. However PW1 admitted that the
accused No.1 transferred amount four times and accused No.2
transferred one time to her account through NEFT. She also admitted
that she received Rs.1,03,000/ from the accused. She denied the cash
payments as alleged by the accused. However it was stated by PW.1 in
the crossexamination that the amount was given in respect of rent. She
denied that she did not mention about the same in the notice and the
complaint. It was elicited that Rs.12,000/ was given by the accused in
her house by way of cash in the month of March. It shows that the
accused also paid amount to the complainant by way of cash. Apart
from this as discussed above the explanation offered by the
complainant that the amount received was in respect of rent of her
house as the accused failed to lease their house to her is not believable
in the eyes of any prudent man, without there being any written
agreement to that effect. Therefore the defence is able to prove that
part of the amount has been paid.
19. It is also the specific defence of the accused No.1 that he
had taken loan of Rs.3 lakhs for business purpose through bank transfer
and he never received Rs.1,50,000/ by way of cash from the
complainant. On perusal of the complaint, it is clear that the
complainant mentioned that she paid Rs.1,50,000/ by way of cash in
December 2016. PW1 stated in her crossexamination that she
transferred Rs.3 lakh through Bank transfer to the accused and she
gave Rs.1,50,000/ to the accused by way of cash. She also stated that
she gave the amount in the month of December 2016. It was elicited
that she produced the bank statement for having withdrawn amount of
Rs.1,50,000/. However on perusal of the bank statement at Ex.P.12,
19 CC.19594/2018 (J)
which is for the period from 01.12.2016 to 31.07.2017, did not show
any entry of such transaction during the month of December 2016.
Ex.P.13 and P.13(a) are the two bank passbooks for statement from
07.03.2013 to 19.07.2017 pertaining to her account in Syndicate Bank,
which also show the similar entries as that of bank statement at
Ex.P.12. It was further elicited that she did not remember the date on
which she paid Rs.1,50,000/ to the accused. She did not withdraw the
amount from the Bank. The amount was with her in the house. It is
also not averred in the complaint. It shows that the version of the
complainant differs from time to time and therefore the payment of
Rs.1,50,000/ alleged to be made by the complainant by way of cash is
not believable.
20. Further on perusal of Ex.P.1 to 3, it is clear that the
writings on the cheque and signature, except the name of the
complainant and date, appears to have written with the same ink and
at the same time. The name of the complainant and date on ExP.1 to 3
appears to have written with different ink. It is admitted by the accused
No.1 that he signed the cheques in question. It is true that such aspects
have no bearing on the case because as per the presumption
U/s.118(b) of N.I.Act every Negotiable Instrument bearing a date was
made or drawn on such date and as per Section 20 of the N.I.Act, if the
person signs and delivers Negotiable Instrument and it is left
incomplete and thereby he authorizes the holder to complete the
Negotiable Instrument and thereby he is liable for the amount
mentioned in the Negotiable Instrument. Even in view of the Judgment
rendered by the Hon'ble Supreme Court of lndia in its Criminal Appeal
20 CC.19594/2018 (J)
No.230231 of 2019 - Bir Singh V/s.Mukesh Kumar also such aspects
have no bearing, wherein the Hon'ble Apex Court held as under;
38. If a signed blank cheque is voluntarily
presented to a payee, towards some payment, the
payee may fill up the amount and other particulars.
This in itself would not invalidate the cheque. The
onus would still be on the accused to prove that the
cheque was not in discharge of a debt or liability by
adducing evidence.
40. Even a blank cheque leaf, voluntarily
singed and handed over by the accused, which is
towards some payment, would attract presumption
under Section 139 of the Negotiable Instruments Act,
in the absence of any cogent evidence to show that the
cheque was not issued in discharge of a debt.
However the facts of the case are different and the principles laid
down in the above case are not applicable to the case on hand. The
accused No.1 took probable defence and he is able to demonstrate that
the transaction alleged by the complainant is doubtful. It is also a
defence of the accused that the cheques in question were given as
security. The evidence on record show that the cheques in question
were given as security. No doubt that even if the dishonoured cheque in
question was issued for security, it will still comes under the ambit of
Section 138 of the Act. The only condition is that the cheque must be
backed by some form of legally enforceable debt or other liability
21 CC.19594/2018 (J)
towards the holder. However it is not fulfilled as per the above
discussion. It is cleat from the evidence on record that the accused No.1
took Rs.3,00,000/ for business purpose and he had already repaid
Rs.1,03,000/. In the case of Sampelly Satyanarayana Rao v. Indian
Renewable Energy Development Agency Limited reported in (2016) 10
SCC 458, wherein the Hon'ble Apex Court held that " If on the date of
the cheque, liability or debt exists or the amount has become legally
recoverable, the Section is attracted and not otherwise." Therefore on
account of the said law as well, no offence U/s 138 of NI Act is
attracted since on the date of the cheques, liability of the amount of the
cheques was not actually due to the complainant. Therefore the
complainant failed to prove that the amount of Rs.4,50,000/ is the
legally recoverable debt. The burden is on the accused to prove that
there was no legally recoverable debt or liability and the accused No.1
discharged his burden by way of preponderance of probabilities.
21. The counsel for the accused relied on the Judgment of the
Hon'ble Supreme Court of India in the case of K.Subramani
Vs.K.Damodar Naidu reported in (2015) 1 SCC 99, wherein it was held
that the legally recoverable debt not proved as the complainant could not
prove the source of income from which the alleged loan was made to the
appellant accused and the presumption in favour of the holder of the
cheque stood rebutted. The counsel for the accused also relied on the
Judgment of the Hon'ble Supreme Court of India in the case of
Basalingappa Vs.Mudibasappa reported in AIR 2019 SC 1983, wherein
it was held that the non mentioning of the date of issuance of cheque by
the complainant in the complaint as well as in the evidence and the
complainant not satisfactorily explaining the contradiction in the
22 CC.19594/2018 (J)
complaint visavis his examination in chief and crossexamination and
his failure to prove the financial capacity to advance the substantial
amount, the accused entitled for acquittal. The judgments are also
applicable to the facts of the case as discussed above.
22. As per the aforesaid discussion and reasons assigned, it is
clear that the version of the complainant in the complaint and evidence
are different. There are so many inconsistencies and contradictions,
which the complainant failed to explain. Issuance of cheques as alleged
was not proved. Therefore reasons are sufficient to hold that the
complainant failed to prove the existing debt or liability of the accused
to the tune of Rs.4,50,000/. It is well settled that the accused needs to
prove his defence by preponderance of probabilities. It is sufficient if
the doubt is created on the alleged transaction. The accused No.1 has
created the doubt on the alleged transaction and issuance of cheques in
favour of complainant as alleged. He proved that there is no debt or
liability in favour of the complainant to the extent claimed in the
cheques. Therefore this Court is of the opinion that the accused No.1
rebutted the statutory presumption U/s.139 and 118(a) of the Act.
Accordingly as discussed above, the accused No.1 and 2 are found not
guilty for the offence punishable U/s.138 of the N.I.Act. Hence, the
Point No.1 is answered in the Negative and Point No.2 is answered in
the Affirmative.
23. Point No.3 : In view of the reasons assigned on Point No.1
and 2, I proceed to pass the following:
23 CC.19594/2018 (J)
ORDER
As per the provisions of Sec.255(1) Cr.P.C. the accused No.1 and 2 are hereby acquitted of the offence punishable u/s.138 of NI Act, 1881.
The personal bond executed by the accused No.1 and 2 hereby stand cancelled and office is directed to refund cash surety of Rs.2,000/ each to the accused No.1 and 2 after appeal period is over.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 25th day of October2020.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
24 CC.19594/2018 (J) ANNEXURE Witnesses examined for the Complainant: PW.1 Zareen Taj Documents marked for the Complainant: Ex.P.1 to 3. Three original Cheques. Ex.P.1a to P3a Signatures of the accused. Ex.P.4 to P.6 Three Bank endorsements.
Ex.P.7 Legal Notice.
Ex.P.8 & P.9 Two Postal Receipts.
Ex.P.10 & P.11 Two Postal Envelopes.
Ex.P.12 Bank Statement of Account.
Ex.P.13 Bank Passbook.
Ex.P.13a Bank Passbook.
Ex.P.14 WhatsApp Notice Printer Copy.
Ex.P.14a Certificate U/s. 65B of Indian Evidence Act .
Witnesses examined For Defence: DW1 Sageer Ahmed [ Documents marked for Defence: Ex.D.1 Cheque.
Ex.D.2 Bank Passbook.
Ex.D.3 Aadhar Card
Ex.D.4 Bank Notice.
(Lokesh Dhanapal Havale)
XV Addl. CMM., Bangalore.