Bangalore District Court
K.S. Leela vs R. Anuradha on 3 February, 2024
KABC030017832021
Presented on : 07-01-2021
Registered on : 07-01-2021
Decided on : 03-02-2024
Duration : 3 years, 0 months, 27 days
IN THE COURT OF THE XXI ACMM, BENGALURU
Dated: This the 03rd day of February, 2024
Present:
SRI.GIRISH CHATNI, B.A.,LL.B.,(Spl)
XXI ACMM, Bengaluru
C.C.No.512/2021
Complainant : Smt.K.S.Leela,
Wife of Mahadevaswamy,
Aged about 35 years,
R/at No.4, Rathna Nivas,
Royal Palm Layout,
Near Mantri Tranquil,
Gubbalala, Kanakapura
Main Road, Bengaluru - 560 062.
(By Sri.K.P, Adv)
V/s
Accused : Smt.R.Anuradha,
Wife of R.Suresh,
Aged about 47 years,
R/at Nele, No.242,
6th Main Road,
2 C.C.No.512/2021
Sapthagirinagara,
Hosakerehalli,
Bengaluru - 560085.
(By Sri.A.Z, Adv.)
JUDGMENT
This case emanates from a private complaint filed by the complainant alleging that the accused has committed an offence punishable under section 138 of Negotiable Instruments Act, 1881.
2. THE ESSENTIAL FACTS IN BRIEF.
It is the case of the complainant that, the accused son Karthik is the friend of the complainant's daughter and known to each other. With this acquaintance, in the month of December 2019, the accused and her son Karthik together approached the complainant for construction of her house and requested the complainant to lend a sum of Rs.3,00,000/- and the accused also agreed to repay the same within one month. Accordingly, the complainant paid the said amount of Rs.3,00,000/- by way of cash to the accused in front of the complainant's friend Sri.Kumar.K. It is further contended that, after the span of stipulated period, the accused neither repaid the loan amount nor showed any interest regarding the same, after several 3 C.C.No.512/2021 requests and demands made by the complainant, accused issued a cheque bearing No.000010 dated 17.02.2020 for a sum of Rs.1,00,000/- drawn on Kotak Mahindra Bank, Girinagara II Phase Branch, Bengaluru in favour of the complainant.
2(i). It is further contended that, as per the instructions of the accused, complainant presented the said cheque for encashment through his banker i.e., Canara Bank, Konankunte Branch, Bengaluru. The said cheque was returned by the banker by intimation dated 18.02.2020 vide endorsement "Funds Insufficient". It is further contended that the complainant got issued a Legal notice dated 25.02.2020 calling upon the accused to pay the cheque amount, but the said notice was served to the accused on 26.02.2020. Despite of service of notice, the accused neither replied to the notice nor paid the cheque amount within the stipulated time from the date of service of the notice. Therefore, the complainant filed the present complaint against the accused alleging the commission of offence punishable under section 138 of Negotiable Instrument Act.
3. The complainant has led her pre summoning evidence. The complainant has filed her affidavit by way of sworn statement in lieu of oral evidence, in which, she has reiterated 4 C.C.No.512/2021 the complaint averments. In support of her oral evidence, PW.1 has produced 06 documents, which are marked as Ex.P.1 to Ex.P.6 and closed her side.
4. Prima-facie case has been made out against the accused and has been summoned vide order of the same date. Accused has appeared before the court and has been enlarged on bail. The substance of accusation was read over to her, to which she pleaded not guilty and claimed to be tried.
5. In view of the directions of the Hon'ble Apex Court in a decision reported in (2014) 5 SCC 510 (Indian Bank Association & Others V/s Union of India), the affidavit filed in lieu of sworn statement was treated as evidence of complainant. Thereafter, the accused was examined as provided under section 313 of Cr.P.C., by explaining the incriminating evidence available against her. The accused has examined herself as DW.1. In support of her oral evidence, DW.1 has produced Certified copies of order sheet, vakalath and complaint in CC.No.1022/2021 as per Ex.D.1.
6. One Kumari Archana examined as CW.1 and got marked Bank Statement as per Ex.C.1.
5 C.C.No.512/2021
7. Heard the learned counsel for the complainant and learned counsel for the accused and both of them have filed their written arguments. Perused the materials available on record. The learned counsel for the complainant has relied on the following decisions in support of his contentions;
1) (2016) 10 SCC 458
2) (2015) 8 SCC 378
3) 2010(11) SCC 441
4) SLP (Crl) No.5241/2016
8. During the course of the arguments, the counsel for the accused has relied on the following decisions in support of his contentions;
1) (2006) 6 Supreme Court Cases 39
2) ILR 2007 KAR 2709
3) ILR 2008 KAR 3635
4) 2008 CRI.L.J 1172 Supreme court
5) ILR 2009 KAR 172
6) ILR 2014 KAR 6572
7) 2015 AIR SCW 64
8) (2014) Supreme Court Cases 236
9. The following points would arise for consideration.
1. Whether the complainant proves that the accused issued Cheque bearing No.000010 dated:17.02.2020 for the legally 6 C.C.No.512/2021 enforceable debt of Rs.1,00,000/-, in favour of complainant and it was presented within the validity period and same are returned unpaid on account of "FUNDS INSUFFICIENT" and thereby caused the dishonor of cheque and inspite of legal notice, the accused failed to make payment and thereby committed an offence punishable under section 138 of Negotiable Instrument Act?
2. What Order?
10. My findings on the above points are as under:-
Point No.1: In the "Negative"
Point No.2: As per the final orders for the following:
REASONS
11. Point No.1:
Section 138 of the Negotiable Instrument Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence punishable U/s 138 of Negotiable Instrument Act are ;
(I) Drawing up of a cheque by the accused towards payment of an amount of money, for discharge, in whole or in part, of any debt or any other liability.7 C.C.No.512/2021
(ii) Return of the cheque by the Bank as unpaid.
(iii) The drawer of the cheque fails to make the payment of the said amount within 15 days of the receipt of notice under the proviso (b) to Section
138.
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.
12. Apart from this, section 139 of 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 the cheque received the cheque, of the nature referred to him section 138, for the discharge in whole or in part, of any debt or other liability."
13. Also, Section 118 of the N.I.Act states - 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 a date was made or drawn on such date;8 C.C.No.512/2021
(c) as to time of acceptance:--that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer:--that every transfer of a negotiable instrument was made before its naturity;
(e) as to order of endorsements:--that the indorsements appearing upon a negotiable instrument were made in the order in which they appear then on;
(f) as to stamp:--that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course:--
that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him
14. Thus the Act clearly lays down presumption 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.
15. 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.
9 C.C.No.512/2021
16. It is a well settled position of law that, the defence of the accused, if is in the nature of a mere denial of the case of the complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the complainant.
17. It is also a well settled position of law that once the cheque is proved relating to the account of the accused and if he /she accepts and admits the signature of the said cheuqe, then the initial presumption as contemplated under section 139 of the N.I.Act has to be raised by the court in favour of the complainant.
18. The presumption referred to in section 139 of N.I.Act is a mandatory presumption and not a general presentation, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. However, the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. 10 C.C.No.512/2021 The defence raised by the accused by way of rebuttal evidence, must be probable and capable of being accepted by the court.
19. No doubt the initial mandatory statutory presumption as provided under sections 118 and 139 of N.I.Act are in favour of the complainant. However, they are rebuttable presumptions and the accused is expected to rebut the presumption by raising a probable defence.
20. Such being legal position, it would be appropriate to refer the defence taken by the accused. On perusal of the examination-in-chief of the accused filed by way of affidavit, following defence have been raised by the accused.
I) Accused has contended that during the month of January 2020, three blank cheques with her signature and one blank cheque of his son with signature were missing.
II) The cheque in question was one of the blank cheque, which was missing at the residence of the accused. III) Accused has further contended that the complainant with an intention to have wrongful gain for herself has filled up the name, amount and the date in the blank cheque and thereby misused the same.
IV) Accused has further contended that neither herself nor her son have availed any loan from the complainant and have issued cheques to the complainant.
11 C.C.No.512/2021V) The accused has further contended that the complainant do not have any financial capability to organize and lend such a huge amount to the accused.
21. Having gone through the defence raised by the accused, now it has to be seen that whether presumption U/s 118 of N.I.Act can be drawn in favour of the complainant as the accused has disputed the very financial capacity of the complainant to lend such amount to the accused. The complainant has examined herself as PW.1 by filing sworn statement by way of affidavit in lieu of oral evidence, wherein she has reiterated the entire averments made in the complaint.
22. In support of her oral evidence, PW.1 has produced Cheque dated 17.02.2020 as per Ex.P.1, the signature on the said cheque was identified by PW.1 as that of accused as per Ex.P.1(a), the Bank memo as per Ex.P.2, office copy of the Legal notice as per Ex.P.3, Postal receipt as per Ex.P.4, Postal Acknowledgment Card as per Ex.P.5, Reply notice as per Ex.P.6.
23. The accused in order to prove her defence has got examined herself as DW.1 by filing examination-in-chief by way of affidavit in lieu of oral evidence and has deposed about the defence raised by her. She got produced the certified copies of 12 C.C.No.512/2021 order sheet, Vakalath and complaint in CC.No.1022/2021, which altogether marked as Ex.D.1.
24. It is pertinent to mention here that, even after providing sufficient opportunities PW.1 did not tender herself for further cross examination in order to mark the Savings Bank Account Statement of the complainant, which she herself has produced before this court. Thereafter, the accused has filed an application U/s 91 of the Cr.P.C., and got examined Manager of the Canara Bank, Konankunte Branch, Bengaluru as CW.1, wherein, she deposed that she has produced Bank Statement of the complainant for the period 01.12.2019 to 27.03.2020, which is marked as Ex.C.1. It is also relevant to mention here that, the complainant has not cross examined CW.1.
25. In order to prove her defence, the accused has cross examined PW.1, wherein, relevant portions of the cross examination of PW.1 will be taken into consideration in order to ascertain whether the presumption as contemplated U/s 118 can be drawn in favour of the complainant. Cross examination part of PW.1 on 01.08.2022 by the accused reveals that, PW.1 has deposed that she has studied up to 10 th Standard, she is house wife. PW.1 has further admitted that, she is not having personal 13 C.C.No.512/2021 income. At this juncture, it would be appropriate to refer the averments made in the complaint. Para No.2 of the complaint reveals that the complainant has contended that the accused was in need of financial help from the complainant to construct a house. The complainant paid a sum of Rs.3,00,000/- by way of cash to the accused in front of accused and the complainant's common friend Sri.Kumar.K. Having referred the said averments made in the complaint, it is clear that the complainant has contended that she has given Rs.3,00,000/- to the accused by way of cash.
26. As the accused has raised the defence regarding the financial capacity of the complainant to lend such huge amount, the accused has cross examined PW.1, wherein, the relevant portion of the cross examination is taken into consideration in order to ascertain about the financial capacity of the complainant in order to lend Rs.3,00,000/- to the accused. PW.1 has admitted that she has given amount to the accused by way of cash and the said cash is of her savings. PW.1 has further admitted that, she has withdrawn the said amount from her savings bank account. It was also suggested that whether she can produce the bank statement for the period 01.12.2019 to 01.03.2020, she has deposed that she can produce the same. Perusal of the materials 14 C.C.No.512/2021 on record, further reveals that though the bank statement for the said period was produced by the complainant, but during the proceedings, she remained absent and has not come forward to tender herself either for further examination or for cross examination by the accused. In that circumstances, the accused filed an application U/s 91 of Cr.P.C., wherein the said application came to be allowed and the bank Manager was summoned to produce the said statement.
27. The bank manager of the complainant banker was examined as CW.1 and she has produced the bank statement of SB account of the complainant for the period 01.12.2019 to 01.03.2020 and it was marked as Ex.C.1. On going through Ex.C.1, it clearly reveals that the complainant never had sufficient money in her savings account to draw Rs.3,00,000/- as admitted by her. On going through the said bank statement, the complainant never had more than Rs.25,000/- in her savings bank account during the period of alleged transaction. Pointing to the cross examination part of PW.1 and also relying on the bank statement, the counsel for the accused has argued that the complainant never had Rs.3,00,000/- in her savings bank account and given to the accused as admitted by her in the cross examination.
15 C.C.No.512/2021
28. The another defence of the accused that there is a material alteration in the cheque in question. In that regard the counsel for the accused has cross examined PW.1, wherein PW.1 has admitted that apart from the Ink of the Hand writings of the signature on the cheque in question and other hand writings in the cheque in question are different one. PW.1 has volunteered by deposing that the accused has signed over the cheque and the name has been filled by the complainant herself. During the course of the arguments, the counsel for the accused has relied on the decision reported in ILR 2014 KAR 6572 between H.Manjunath V/s A.M.Basavaraju, wherein, the Hon'ble High Court of Karnataka has observed that in the absence of the material particulars of the transaction in the complaint, except signature all other entries are in different hand writing, different ink and undoubtedly made in different time. Mentioning of merely the date of issue of cheque without any materials particulars. The Hon'ble High Court of Karnataka has held that the judgment of the acquittal of lower court was justified and dismissed the appeal filed by the complainant in that case.
29. I have carefully gone through the observations made in the decision referred. It is well settled that as per the provisions of the Negotiable Instrument Act, the holder of the 16 C.C.No.512/2021 Negotiable Instrument can fill up the same. Merely admitting that the Ink of the hand writings in cheque are different that alone cannot be sufficient to conclude that there are materials alterations made by the complainant in the cheque in question. Moreover, the accused has not opted to send the cheque in question to the hand writing expert and to obtain report there from. Therefore, the said line of defence that the except the signature in the cheque the other entries are in different hand writings and the cheque bears different hand writings made by the complainant is not maintainable. Moreover, the accused has not substantiated as to how the cheque in question went into the possession of the complainant.
30. I have carefully examined the examination-in-chief of the accused, wherein, she has specifically contended that during the month of January 2020, she found that three blank cheques with signatures and one blank cheque of his son with signature were missing and not found even after search made in her residence. It was also deposed that, the accused came to know that the complainant presented the cheque, which was lost. In this regard, I would like to refer the documents filed by the accused in order to ascertain whether the said defence is tenable or not or the accused was diligent in taking appropriate steps 17 C.C.No.512/2021 after the cheques were missing. The accused has produced the certified copies of order sheet, Vakalath and Complaint filed by one Kumar in CC.No.1022/2021. Apart from the said documents, the accused has not produced any other documents.
31. In this regard, I would like to refer the reply given to the notice by the accused, wherein, the accused has replied to the notice, wherein, the accused has contended that the complainant in the month of January 2020 has visited her residence at that point of time, the cheque in question and other cheques were missing and it appeared that the complainant has stolen the said cheques and presented it before the bank. On perusal of the materials the accused has failed to prove as to what are the appropriate steps have been taken by her when the complainant has stolen the cheques. In the absence of cogent documents, the said contention / defence is not maintainable.
32. I would like to refer the cross examination part of DW.1, wherein she has admitted that, she has not filed any complaint before the police after the cheques were found missing. On perusal of the materials on record, the accused has not produced any cogent documents in order to show that she was diligent in taking appropriate steps with regard to cheques 18 C.C.No.512/2021 being missing. No documents are put forth by the accused in order to show that she had filed complaint before the police with regard to the missing of cheques. No documents have been produced before this court in order to show that the accused and her son have issued stop payment instructions to their banker stating that the cheques were missing and to stop the payment in case the said cheques are being presented for encashment. In the absence of the sufficient oral and documentary evidence in order to show that the accused was diligent in taking appropriate steps with regard to the missing of the cheques, the defence of the accused that the cheques were missing is not tenable and not proved by the accused.
33. Accused has produced certified copy of Order sheet, Vakalath, Complaint in CC.No.1022/2021, wherein, it could be revealed that one K.Kumar has filed the private complaint against the accused herein for the commission of offence punishable U/s 138 of N.I.Act. The said complaint has been filed with regard to cheque bearing Nos. 000007 dated 17.02.2020 and 000008 dated 17.02.2020 for a sum of Rs.2,00,000/-. On perusal of the examination-in-chief of the accused, she has taken up defence that the complainant by colluding with her friend Sri.Kumar.K 19 C.C.No.512/2021 filed one more case in CC.No.1022/2021 on the file of Small Causes Judge (SCCH-8) at Bengaluru.
34. I have carefully examined the certified copy of the compliant wherein, the said K.Kumar has filed the complaint, he has contended that the accused is known to him through their common friend Smt.K.S.Leela i.e., the complainant herein and the said K.Kumar having realized his mistake did not appeared before the court, wherein, the said criminal case came to be dismissed for non-prosecution vide order dated 07.12.2022. Having referred the said averments in Ex.D.1, the counsel for the complainant would argue that the complainant colluding with her friend has filed criminal case with regard to the cheque, which was misplaced at the residence of the accused. I have carefully gone through Ex.D.1 and the submissions made by the accused. Mere production of the complaint would not suffice that the said K.Kumar colluding with the complainant has filed that case, which came to be dismissed.
35. I once again rely on the averments made in the complaint, legal notice and in the sworn statement, wherein, the complainant has contended that, that the complainant has paid a sum of Rs.3,00,000/- by way of cash to the accused infront of 20 C.C.No.512/2021 accused and her common friend Sri.Kumar.K. On perusal of the cross examination of PW.1, she has deposed that she has given Rs.3,00,000/- to the accused in her house, at that time, apart from the complainant and her workers no persons were present. Pointing to the said averments made in the Complaint, Legal Notice and Sworn Statement and in comparison with the above referred cross examination, the counsel for the accused would argue that there is a contradictory averments taken up by the complainant. Therefore, it clearly establishes that the complainant has not paid any amount to the accused as alleged by her in the complaint and in the sworn statement.
36. During the course of the arguments, the counsel for the complainant has filed written notes of arguments by submitting that the case has been filed against the accused for the commission of offence U/s 138 of N.I.Act. The counsel for the complainant has also argued that the accused is not disputing the cheque or the signature on it, however, she has concocted a story stating that her three blank signed cheques missing in the month of January-2020. The counsel for the complainant relying on the cross examination part of DW.1 has argued that she has admitted that she has not filed any complaint with regard to the missing of the cheques. Counsel for the complainant has argued 21 C.C.No.512/2021 that the accused has borrowed loan of Rs.3,00,000/-, in order to return the said loan amount, the accused and her son has issued two cheques, one belonging to her and another belonging to her son, which were signed by them for Rs.1,00,000/- and Rs.2,00,000/- respectively. The accused knowing fully well that there are no sufficient funds in the account has issued cheques, which came to be dishonoured for the reasons 'Insufficient Funds'. Counsel for the complainant has also argued that there is no document of proof to show that the cheque Nos. 000007 and 000008 have been misused by the complainant and the case has been filed through Mr.Kumar.K.
37. During the course of the arguments, the counsel for complainant has relied on the decision reported in (2016) 10 SCC 458 between Sampelly Satyanarayana Rao V/s Indian Renewable Energy Development Agency Limited. I have carefully gone through the said referred decision, which has been dealt with the presumption U/s 139 of N.I.Act, when to be raised and how to rebut there of.
38. During the course of the arguments, the counsel for complainant has relied on the decision reported in (2015) 8 SCC 378 between T.Vasanthakumar V/s Vijayakumari. I have 22 C.C.No.512/2021 carefully gone through the decision referred wherein the same has been dealt with the presumption U/s 139, burden of proof on the accused in which in that case the accused has failed to discharge.
39. During the course of the arguments, the counsel for complainant has relied on the decision reported in 2010(11) SCC 441 between Rangappa V/s Sri.Mohan. I have carefully gone through the decision referred wherein, the Hon'ble Apex Court has held that the presumption mandated by section 139 of the Act does indeed include the existence of a legally recoverable debt or liability. It was also observed that when accused has to rebut the presumption U/s 139 of N.I.Act, standard of proof for doing is that of preponderance of probability, apart from raising a probable defence.
40. During the course of the arguments, the counsel for complainant has relied on the decision in SLP (Crl) No.5241/2016 between Jain P.Jose V/s Santosh & Another. I have carefully gone through the decision referred, wherein the Hon'ble Apex Court elaborately discussed with presumption U/s 139 of N.I.Act and when to be drawn in favour of the complainant.
23 C.C.No.512/2021
41. During the course of the arguments, the counsel for the accused has filed written notes of arguments, wherein he has argued that the complaint is not maintainable either in law or on facts of the case and prayed for dismissal of the complaint. The counsel for the accused in his written notes of arguments has detailed out with regard to the defence raised by the accused. Counsel for the accused has also referred the cross examination part of PW.1 and argued that there are contradictory statements by the PW.1 in her examination-in-chief and in comparison with the Complaint and Legal notice. The counsel for the accused has also argued that the branch manager of the complainant banker has been summoned by this court and she was examined as CW.1, wherein, the bank statement has been marked as Ex.C.1. Pointing out to the said bank statement, the counsel for the accused would argue that the complainant had no financial capacity to lend such amount.
42. During the course of the arguments, the counsel for accused has relied on the decision reported in (2006) 6 Supreme Court Cases 39 between M.S.Narayana Menon V/s State of Kerala. I have carefully gone through the decision relied on, wherein, it has been dealt with presumptions U/s 118 and 139 of N.I.Act. It was also held that initial burden of proof is 24 C.C.No.512/2021 on the accused to rebut the same by raising a probable defence. If he discharges the said burden, the onus thereafter shifts on to the complainant. The Hon'ble Apex Court has dealt with the burden of proof of the accused in the proceedings under N.I.Act.
43. During the course of the arguments, the counsel for the accused has relied on the decision reported in ILR 2007 KAR 2709 between M.Senguttuvan V/s Mahadevaswamy. I have gone through the decision referred wherein, the Hon'ble High Court of Karnataka has dealt with the presumption U/s 139 of the N.I.Act need not to rebutted only by leading defence evidence and the said presumption can be rebutted even on the basis of the facts elicited in the cross examination of the complainant. In the case on hand also, the accused has raised probable defence and casted doubt on the financial capacity of the complainant in order to lend the amount to the accused.
44. During the course of the arguments, the counsel for accused has relied on the decision reported in ILR 2008 KAR 3635 between K.Narayana Nayak V/s Sri.M.Shivarama Shetty. I have carefully gone through the decision referred, wherein, the Hon'ble High Court has dealt with the preponderance or probabilities.
25 C.C.No.512/2021
45. During the course of the arguments, the counsel for accused has relied on the decision reported in 2008 CRI.L.J 1172 Supreme court between S.B.Sinha.J and H.S.Bedi.J. I have carefully gone through the decision, wherein, the Hon'ble Apex Court has dealt with the proof by the accused, wherein, he is not required to step into the witness box. Accused may discharge his burden on the basis of materials already brought on record. The Hon'ble Apex Court in the said decision has also discussed about the standard of proof so as to prove a defence on the part of accused in N.I.Act cases is preponderance of probabilities.
46. During the course of the arguments, the counsel for accused has relied on the decision reported in ILR 2009 KAR 172 between Sri.A.Viswanatha Pai V/s Sri.Vivekananda S.Bhat. I have carefully gone through the decision, wherein, the Hon'ble High Court of Karnataka has observed that the accused has successfully established his defence by adducing his own evidence and also by eliciting in the cross examination of PW.1.
47. During the course of the arguments, the counsel for accused has relied on the decision reported in 2015 AIR SCW 64 between Sri.K.Subramani V/s Damodara Naidu. I have 26 C.C.No.512/2021 carefully gone through the decision, wherein, the Hon'ble Apex court has dealt with the financial capacity of the complainant and failed to prove that there was legally recoverable debt payable by the accused. The said decision is aptly applicable to the case on hand.
48. During the course of the arguments, the counsel for accused has relied on the decision reported in (2014) 2 Supreme Court Cases 236 between John.K.Abraham V/s Simon C.Abraham and Another. I have carefully gone through the decision referred, wherein, the Hon'ble Apex Court has dealt with the drawing of the presumption U/s 118 R/w section 139 of N.I.Act and also discussed what are the per-requisites for when cheque is for repayment of a loan / advance money. The said decision is also aptly applicable to the case on hand.
49. On perusal of the entire materials on record, it is not in dispute that the complainant is known to the accused as the son of accused and daughter of the complainant are of friends with each other. The accused has seriously disputed the financial capacity of the complainant to lend Rs.3,00,000/- to the accused for construction of the house. It would be profitable to refer the decision of the Hon'ble Apex Court reported in (2019) 5 SCC 27 C.C.No.512/2021 418 between Basalingappa V/s Mudibasappa, wherein, the Hon'ble Apex court has elaborately dealt with section 4 and 114 of Indian Evidence Act and summarized the principles regarding the standard of proof. In the decision referred the Hon'ble Apex court has dealt with rebuttal of presumption on section 139 of N.I.Act, wherein, the accused has disputed the financial capacity of the complainant to pay amount and leading evidence to prove it, the Hon'ble Apex Court holding that the accused has led probable defence, under such conditions the burden would be on the complainant to establish his financial capacity which he was unable to do. Therefore, the Hon'ble Apex Court restored the order of acquittal. In order to summarize the decision referred, the Basalingappa, who was the accused before the lower court was acquitted of the offence punishable U/s 138 of N.I.Act., wherein, the complainant by name Mudibasappa has preferred an appeal before the Hon'ble High Court of Karnataka, wherein, the Hon'ble High Court set aside the judgment of acquittal and convicted the accused Basalingappa for the offence punishable U/s 138 of N.I.Act. The Hon'ble Apex Court in the appeal preferred by Basalingappa has restored the order of the acquittal holding that the accused has led probable defence and it is the complainant, who has failed to establish his financial capacity. 28 C.C.No.512/2021 The said decision referred supra is aptly applicable to the case on hand.
50. It is well settled that, when once the cheque and signature there on is admitted section 139 of N.I.Act mandates a presumption that the cheque was for the discharge of any debt or liability. The presumption U/s 139 of N.I.Act as discussed above is a rebuttable presumption as initial burden is on the accused to raise probable defence. Relying on the decisions referred by the accused, the standard of proof for rebutting the presumption is that off preponderance of probabilities. To rebut the said presumption it is open for the accused either to rely on the evidence led by him or can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties, but also by reference to the circumstances upon which they rely. It is not necessary for the accused as discussed above to come in the witness box to support of his defence, section 139 of N.I.Act imposed an evidentiary burden not a persuasive burden.
51. In order to draw presumption U/s 118 R/w 139 of N.I.Act, the burden lies on the complainant to show, 29 C.C.No.512/2021
i) That she had requisite funds for advancing the sum / money / Loan in question to the acucsed.
ii) That the issuance of cheque by accused in support of repayment of money advance was true.
Iii) That the accused was bound to make payment as had been agreed while issuing cheque in favour of the complainant.
In the case on hand, the complainant during her cross examination, she has admitted that she has drawn Rs.3,00,000/- from her SB account and given to the accused. Ex.C.1 further fortifies that the complainant never had that much of amount in her SB Account in order to lend that much amount to the accused. Therefore, the complainant has failed to prove that there is legally recoverable debt payable by the accused to her. Ofcourse, the materials on record further reveals that the accused has failed to show that the cheques were missing and the accused was diligent in taking appropriate steps with regard to the missing of the cheques.. No doubt, the issuance of the cheque and the signature appearing in the same has been admitted by the accused, presumption necessarily drawn in favour of the complainant. However, the accused by raising probable defence has rebutted the said presumption as to the 30 C.C.No.512/2021 financial capacity of the complainant. When there is no legally recoverable debt, no offence has been made out against the accused. Accordingly, she is entitled for acquittal. In view of the above said discussions, I answer point No.1 in the "Negative".
52. Point NO.2:- In the light of discussions made at point No.1, I proceed to pass the following;
ORDER
By invoking the power conferred
under section 255(1) of Cr.P.C., the
accused is hereby acquitted of the offence punishable U/S.138 of Negotiable Instrument Act.
Bail bond of the accused shall stands canceled.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me, signed then pronounced in the open court on this the 03rd day of February, 2024.) (SRI.GIRISH CHATNI) XXI ACMM, BENGALURU ANNEXURE
1. List of witnesses examined on behalf of the complainant:
PW-1 : K.S.Leela
31 C.C.No.512/2021
2. List of witnesses examined on behalf of
the accused:
DW-1 : R.Anuradha
3. List of documents marked on behalf the
complainant:
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of accused
Ex.P.2 : Return Memo
Ex.P.3 : Legal Notice
Ex.P.4 : Postal Receipt
Ex.P.5 : Postal Acknowledgment
Ex.P.6 : Reply notice
4. List of documents marked on behalf of the accused:
Ex.D.1 : C.C of Order sheet, Vakalath and
complaint
5. List of witnesses examined by the
Accused:
CW.1 : Kumari Archana
6. List of documents marked by the witness
who is examined by the accused:
Ex.C.1 : Bank Statement
Digitally signed by
GIRISH GIRISH SHIVANAND
SHIVANAND CHATNI
Date: 2024.02.06
CHATNI 17:24:49 +0530
(SRI.GIRISH CHATNI)
XXI ACMM, BENGALURU