Bangalore District Court
Smt.Umadevi vs Sri.Muthuraj on 5 October, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 5th day of October - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.9850/2016
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Smt.Umadevi,
W/o.Mallaiah,
Aged about 45 years,
R/at No.14/1, 13th Cross,
6th Main, Bhuvaneshwari Nagar,
K.P.Agrahara, Bengaluru-23.
(Rep. by Sri.V.Ashoka, Adv.)
V/S
Accused : Sri.Muthuraj,
Major,
No.4, 3rd Cross, Mallige Thota,
Cholurpalya, Magadi Road,
Bengaluru-23.
(Rep.by Sri.B.R.Prabhulinga Murthy, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 05.10.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.9850/2016
JUDGMENT
The complainant has presented the instant complaint against the accused on 09.03.2016 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheques of Rs.5,57,600/-.
2. In a nut shell, the case of the complainant is:
The accused was well known to the complainant from past several years. The accused was running chit business, wherein, she joined as a subscriber to a chit for Rs.10 lakhs. She also made joined other knowing persons and friends to the subscriber of the chit run by the accused. Since, the accused stopped the said chit transaction after 7 chits due to his inconvenience, thereby, he become liable to pay sum of Rs.5,57,600/- to the complainant.
The complainant has further alleged that, whenever she approached the accused and demanded for return of the said chit amount, accused went on postponing the same for one or other pretext. Finally, on persistent demand and requests made by her, towards discharge of the said liability, the accused got issued 3 cheques bearing Nos.364088 dated:30.11.2015 for sum of Rs.1,28,800/-, cheque bearing No.364086 dated:05.11.2015 for Judgment 3 C.C.No.9850/2016 sum of Rs.2 lakhs and another cheque bearing No.364087 dated:30.11.2015 for sum of Rs.2,28,800/- respectively, all the cheques are drawn on Syndicate Bank, Magadi Road Branch, Bengaluru, in favour of complainant and assured to honour the said cheques on their presentation.
The complainant has further averred that, at the instructions of the accused, she presented the said cheques for encashment through her banker i.e., Syndicate Bank, Magadi Road Branch, Bengaluru, but the same were dishonoured for the reasons "Funds Insufficient" as per memo dated:27.01.2016. Immediately, she approached and intimated the accused to the same, but he did not repay the money covered under the cheques. Hence, she got issued legal notice on 29.01.2016 by R.P.A.D. The same came to be served on accused on 30.01.2016. Despite that, either he not repaid the money covered under the cheques or reply the said notice. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act.
Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie Judgment 4 C.C.No.9850/2016 grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, she herself choosen to examined as PW.1 and got marked Exs.P1 to P10(a). The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D1 to D3 and also subjected for cross- examination by the advocate for the complainant.
7. I have heard the arguments of both side counsels.
Judgment 5 C.C.No.9850/2016
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 beyond the reasonable doubt that, the amount covered under the Exs.P1 to P3 - cheques are the existence of legally enforceable debt payable by the accused?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove her case choosen to examined herself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P10(a), they are:
Judgment 6 C.C.No.9850/2016
a) Exs.P1 to P3 are the cheques bearing Nos.364088, 364086 and 364087 issued by the accused for sum of Rs.1,28,800/-, Rs.2 lakhs respectively and Rs.2,28,800/-, in all Rs.5,57,600/- dated:30.11.2015 and 05.11.2015, drawn on Syndicate Bank, Magadi Road, Bengaluru.
b) Exs.P1 to P3(a) are the alleged signatures of accused.
c) Exs.P4 to P6 are the Bank Memo dated:27.01.2016.
d) Ex.P7 is the Legal Notice dated:29.01.2016.
e) Ex.P8 is the Postal receipt.
f) Ex.P9 is the Postal Acknowledgment Card.
g) Ex.P10 is the private complaint.
k) Ex.P10(a) is the signature of complainant.
11. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of her case the complainant through her counsel has produced the citations and relied upon same, they are;
a) LAWS (KAR) 2014 6 28
b) AIR 2018 SC 3173
c) (2010) 11 SCC 441
12. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed his side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and gave his Judgment 7 C.C.No.9850/2016 statement that, complainant has deposed falsely, but she herself run the chit of Rs.10 lakhs, wherein he was subscribed and the monthly premium was Rs.10,000/- and he got paid the premium for the period of 18 months. When he intends to bid the chit, she avoided the accused, later, accused not paid the premium. But the complainant when started the chit, she took 3 signed blank cheques of him as security by misusing the same filed the false case. Hence, he is not liable to pay the amount covered under the cheques at Exs.P1 to P3.
13. That apart, to prove his probable defence, the accused himself choosen to entered into witness box and orally examined as DW.1 on oath. Wherein he deposed that, one Smt.Sulochana in the year 2014 got introduced the complainant and told him that, complainant has run the chit and if he join, she would not be cheated. The accused subscribed chit with complainant for sum of Rs.10 lakhs and its monthly premium was Rs.10,000/- and accordingly, he got paid the premium of Rs.1,80,000/- to the complainant. When he joined chit, since he had monetary problem, with the complainant, he, his wife and his friend by name Sri.Venkatesh Reddy together took the loan of Rs.6 lakhs from the complainant in the year 2015 on monthly interest at 10%. In that regard, he paid Rs.60,000/- interest for the period of 10 months.
Judgment 8 C.C.No.9850/2016 While borrow the said loan, he gave 3 cheques to the complainant at her instruction for Rs.5,57,000/- including interest forcefully. The accused not liable to pay that much amount to the complainant. Apart from, the complainant took 3 cheques from the accused, she also took 3 cheques from Sri.Venkatesh Reddy, by stating that, would return the cheques of the accused, but not returned the cheques of the accused.
The accused has also deposed that, when he got delay in paying the interest in a month, one Sri.Satish by stating, he is working in Police Department came along with other persons to the house of accused, when he was not there, assaulted his two female children. In that regard, on the next day i.e., on 26.12.2016 he gave complaint to Magadi Road Police Station. Later, the police brought the complainant to Police Station and advised her. The complainant not returned the cheques of the accused, which were obtained forcefully. Therefore, he gave stop payment instruction to his banker.
The accused has further deposed that, earlier he, his wife and one Sri.Venkatesh Reddy together did real estate business in the name of Manjunath Enterprises and not did any chit transaction. Though, he not liable to pay money to the Judgment 9 C.C.No.9850/2016 complainant, by misusing the cheques obtained from the accused by use threat got filed the false case. Hence, he is not liable to pay any money to the complainant.
Apart from the accused also choosen to produced the documents at Exs.D1 to D3. They are:
a) Ex.D1 is the true copy of complaint lodged by accused herein before the Magadi Road Police Station and
b) Exs.D2 and D3 are the true copies of stop payment instruction applications submitted by accused herein before his banker.
The DW.1 was subjected to the cross-examination by the advocate for the complainant.
14. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
15. On going through the rival contentions of the parties, it made clear that, the complainant brought the present case based on the questioned cheques at Exs.P1 to P3 by claiming the accused is liable to pay the amount covered under therein has not repaid, despite, issued legal notice after dishonour of cheques. Therefore, it made clear that, as per Section 118 Negotiable Instruments Act, the statutory presumption has to be drawn in Judgment 10 C.C.No.9850/2016 favour of complainant that, cheques had been issued for the consideration and until contrary is prove, such presumption would holds good. As per Section 139 of Negotiable Instruments Act, it also made clear that, the necessary to draw the statutory presumption in favour of complainant based on the questioned cheques that, unless the contrary is prove, the complainant being a holder of the cheques received the Exs.P1 to P3 cheques of the nature referred in Section 138 of Negotiable Instruments Act, for the discharge of in whole or in part of any debt or other liability. Therefore, by virtue of Sections 118 and 139 of Negotiable Instruments Act, it made clear that, initial statutory presumption is in favour of complainant, but subject to the rider, unless and until contrary prove. Therefore, it made clear that, it is initial burden on the accused to prove her probable defence.
16. As per decision reported in 2019 SCC Online SC 389, in a case between Rohith Bai Jeevan Ltd., V/s State of Gujarath. Wherein, the Division Bench of Hon'ble Apex Court pleased to observed that, the onus though shifts on the accused to establish a probable defence so as to rebut such presumption. Wherein, it was also pleased to observed that, presumption it was needed to be drawn by the Court Under Section 118 of Negotiable Instruments Act, would oblige the court to presume that cheque Judgment 11 C.C.No.9850/2016 had been issued for consideration and only contrary is prove, such presumption would hold the ground. Wherein, it was also pleased to observed that, the test of proportionality should guide the construction and interpretation reverse onus clauses and the accused cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justification, reverse onus clauses usually impose o evidentiary burden and not a persuasive burden. It is settled position that, when accused has to rebut the presumption under Section 139 of Negotiable Instruments Act, the standard of proof doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise the probable defence, which creates a doubt the or liability, the prosecution can fail. As clarified in the citation, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that, in some cases the accused may not need to adduce evidence of his own. In the said dictum, it also observed that, the accused also may rely upon presumption of fact, for instance, those mentioned in Sections 114 of the Evidence Act, to rebut the presumption arising under Sections 118 and 139 of Negotiable Instruments Act.
17. Accordingly, it made clear that, it is the initial burden on the accused needs to prove his probable defence under the principal Judgment 12 C.C.No.9850/2016 of preponderance of probabilities. It is capable to raise doubts as to the existence of legally recoverable debt or liability, then whatever the statutory presumption supports the case of complainant would fail. Therefore, it is just and proper to appreciate the evidence of accused on priority coupled with appreciation of the defence taken during the course of cross of PW.1.
18. In that regard, the accused apart from cross-examining the PW.1, gave his statement under Section 313 of Cr.P.C. and also entered into witness box placed his probable defence and produced documentary evidence at Exs.D1 to D3.
19. On close perusal of the defence set out by the accused, he fight contrary to the case of complainant. The accused has specifically stated that, the complainant herself has run the chit for Rs.10 lakhs and he claimed to be paid the premium for the period of 18 months and in all he paid Rs.1,80,000/- to the complainant. No doubt, while gave statement he stated that, at the time of start the said chit, the complainant took 3 signed blank cheques from him and got misused the same. But while legally enforceable debt his evidence, apart from contending so, he also deposed, the accused, his wife and Sri.Venkatesh Reddy together went to Judgment 13 C.C.No.9850/2016 complainant and borrowed loan of Rs.6 lakhs on the monthly interest at 10% along with gave 3 signed blank cheques as security. Even stated, the complainant subject to return the cheques of the accused also obtained 3 cheques from the friend of accused by name Sri.Venkatesh Reddy, but without returned his cheques, filed the false case.
20. On meticulous perusal of the Chief-examination of PW.1 coupled with the statement given by him under Section 313 of Cr.P.C., whatever the statement given as to handed over 3 cheques as security for chit, is not been whispered in his Chief- examination. But in his Chief-examination he categorically deposed, apart from chit money, he paid to the complainant at Rs.1,80,000/-, in the year 2015 he borrowed money from complainant along with others on the security of 3 signed blank cheques of him as well as 3 blank cheques of Sri.Venkatesh Reddy subject to return his earlier cheques. Therefore, from the very say of accused itself made clear that, his subsequent statement gave in the witness box on oath has to be consider and concluded that, at the time of subscribed chit with the complainant, he not gave 3 signed blank cheques to the complainant. Therefore, the facts needs to prove that, while borrow loan of Rs.6 lakhs from the complainant along with others Judgment 14 C.C.No.9850/2016 as said earlier, he gave 3 signed blank cheques and under the assurance of return of the same to the accused, Sri.Venkatesh Reddy gave 3 signed blank cheques to the complainant needs to prove.
21. On going through the cross-examination of DW.1 despite, he made serious allegation against the complainant herself that, she run the chit for Rs.10 lakhs on the monthly installment of Rs.10,000/- and alleged to be paid Rs.1,80,000/-, in that regard, the suggestion made from the complainant is to be seen that:
"¦AiÀiÁð¢ aÃn £ÀqɸÀÄwÛzÀÝ §UÉÎ £À£ÀUÉ zÁR¯ÉAiÀÄ£ÀÄß PÉÆnÖ®è. gÀÆ.10 ®PÀë aÃnAiÀÄ ºÀtªÀ£ÀÄß ¦AiÀiÁð¢AiÀÄ §½ £Á£ÀÄ PÀnÖzÀ §UÉÎ zÁR¯É DPÉ £À£ÀUÉ PÉÆnÖ®è. gÀÆ.10,000/- ªÀiÁvÀæ PÀAvÀ£ÀÄß PÀnÖzÀ §UÉÎ £À£Àß°è zÁR¯É E®è. aÃnAiÀÄ ºÀt gÀÆ.1,80,000/- ¦AiÀiÁð¢UÉ £Á£ÀÄ ¥ÁªÀw¹zÀ §UÉÎ £À£Àß°è zÁR¯É E®è."
22. On meaningful reading of the said testimony of DW.1, which revealed the case of complainant also. On close perusal of the same statement of DW.1, it was suggested to the accused by the complainant that, in order to show that, the complainant has run the chit, she not gave any document to the accused. Like that, it was also suggested that, to show that, she run the chit for Rs.10 lakhs and accused made payment of monthly premium of Judgment 15 C.C.No.9850/2016 Rs.10,000/- and in all paid Rs.1,80,000/-, asked the DW.1 that, whether any document was issued by the complainant to the accused, but the DW.1 stated no. On carefully going through the said testimony of DW.1, it reveal that, the accused has categorically deposed that, in order to show that, he joined the chit and made payment as he alleged as a premium, admittedly, no document is been issued by the complainant. It is significant fact to note that, though accused has entered into witness box and orally deposed, the complainant has run the chit, wherein he joined and paid the chit premium for the tune of Rs.1,80,000/-, is not been denied by the complainant. Mere because of non- production of document by the accused, does not mean that, the complainant has not run the chit. As, single stray suggestion is not made by way of denial to the DW.1. Thereby, it has to be presume that, the complainant had run the chit as alleged by the accused.
23. That apart, the accused took his defence that, since he was financial loss while paying chit money, he, with his wife and Sri.Venkatesh Reddy together borrowed loan of Rs.6 lakhs from the complainant on interest at 10% p.m. on the security of 3 signed blank cheques subject to return his cheques, she also took Judgment 16 C.C.No.9850/2016 signed blank cheques of Sri.Venkatesh Reddy. It is relevant to cite the testimony of DW.1 that:
"d£ÀªÀj 2015 gÀAzÀÄ £Á£ÀÄ, £À£Àß eÉÆvÉAiÀÄ°èzÀÝAvÀºÀ ªÉAPÀmÉñï gÉrØ gÀªÀjUÉ ¸Á® ¨ÉÃPÁzÀ PÁgÀt, £Á«§âgÀÆ PÀÆr ¦AiÀiÁð¢AiÀÄ §½ gÀÆ.6 ®PÀë ¸Á® PÉýzÉݪÀÅ. ¦AiÀiÁð¢, ªÉAPÀmÉñÀ gÉrØ gÀªÀjUÉ £À£Àß ªÀÄÄAzÉ gÀÆ.6 ®PÀë ¤Ãr®è, DzÀgÉ DPÉ D ºÀtªÀ£ÀÄß PÉÆnÖzÉÝãÉAzÀÄ ¨ÀszÀævÉUÉ ZÉPÀÄÌUÀ¼À£ÀÄß £À¤ßAzÀ ¥ÀqÉ¢zÀÝgÀÄ. ¦AiÀiÁ𢠪ÀÄvÀÄÛ ªÉAPÀmÉñÀ gÉrØ gÀªÀgÀ £ÀqÀÄªÉ 2015 gÀAzÀÄ AiÀiÁªÀ jÃwAiÀÄ ªÀåªÀºÁgÀ DVzÀÉ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è JAzÀgÉ ¸Àj. £À£Àß ªÀÄÄRå «ZÁgÀuÉAiÀÄ°è £À£ÀUÉ ºÀt ¨ÉÃPÁzÀ PÁgÀt £Á£ÀÄ, £À£Àß ºÉAqÀw ªÀÄvÀÄÛ ªÉAPÀmÉñÀ gÉrØ gÀªÀgÀÄ ¦AiÀiÁð¢AiÀÄ°è ¸Á® PÉýzÉݪÀÅ JAzÀÄ £Á£ÀÄ £ÀÄr¢®è. GªÀiÁ ¦AiÀiÁð¢UÉ D ¸Á®PÉÌ ªÀiÁ¹PÀ 10 ¥Àæw±ÀvÀ §rØ £Á£ÀÄ vÀ®Ä¦¹zÀ §UÉÎ DPÉ zÁR¯É §gÉzÀÄPÉÆnÖ®è. £Á£ÀÄ ¦AiÀÄĹ ªÁå¸ÀAUÀ ªÀiÁrzÉÝãÉ. D jÃw §rØAiÀÄ£ÀÄß ZÉPï CxÀªÁ DgïnfJ¸ï ªÀÄÄSÁAvÀgÀ ¤ÃqÀÄvÉÛãÉAzÀÄ £Á£ÀÄ PÉýzÁUÀ, DPÉ DzÁAiÀÄ vÉjUÉ ¥ÁªÀwAiÀÄ°è vÉÆAzÀgÉ DUÀÄvÀÛzÉ, ºÁUÁV £ÀUÀzÀÄ ¤ÃqÀĪÀAvÉ PÉýzÀ ¥ÀæPÁgÀ, £ÀUÀzÁV ¥ÁªÀw¹zÉÝãÉ. D §UÉÎ DPÉ gÀ²Ã¢ £À£ÀUÉ PÉÆnÖ®è."
24. On going through the said testimony of DW.1, he deposed, contrary to his chief-examination that, during the month of January, 2015, his friend Sri.Venkatesh Reddy was in need of loan, he along with him went to the complainant and asked for Judgment 17 C.C.No.9850/2016 loan of Rs.6 lakhs. But he deposed, in his presence, complainant not lent loan of Rs.6 lakhs to Sri.Venkatesh Reddy. But he categorically deposed that, she by stating gave the said money took cheques from the accused. He categorically deposed, in between complainant and Sri.Venkatesh Reddy in the year 2015 what transaction were happened is does not known to the accused, but he admitted the said suggestion. By making such suggestion it made clear that, though accused has took 'U' turn to his chief evidence by stating, earlier loan was taken by complainant along with Sri.Venkatesh Reddy, but in his cross-examination stating, Sri.Venkatesh Reddy was need the said money.
25. On going through the said testimony of DW.1, it also reveal the case of complainant suggested to the accused. Wherein, no suggestion is made, as to either denial of loan borrowed by the accused or by Sri.Venkatesh Reddy from the complainant, based on the security cheques. One thing clears from the evidence of DW.1 that, Sri.Venkatesh Reddy is the key eye witness to the said transaction. The accused has deposed, contrary to his chief- examination that, the said loan was borrowed by Sri.Venkatesh Reddy, not by him. Even he deposed that, the complainant to show that, she took interest at 10% p.m. got received from the accused, admittedly no document has been executed by her to Judgment 18 C.C.No.9850/2016 the accused. the DW.1 has deposed that, he studied P.U.C, when he offered the complainant that, the interest would be pay by him by way of RTGS or cheque, she told him that, it would be caused problem in income tax returns, therefore, at her request, he paid the interest in cash and to the same, she not issued any receipt.
26. On going through the said testimony of DW.1, it also reveal that, there is no suggestion made to DW.1 by the complainant as to the alleged borrowing of loan of Rs.6 laks from the complainant in the presence of Sri.Venkatesh Reddy. Only suggestion was made, no document is been produced in order to show, the said transaction were happened. Mere putting such suggestions would not suffice to disbelieve the very probable defence taken by the accused. Necessary suggestion require to be made to DW.1 by way of denial of borrowing of alleged loan of Rs.6 lakhs by the accused or Sri.Venkatesh Reddy, but no such effort is been made. Thereby, indirectly admitted the defense of the accused. When the accused reasserted the borrowing of loan of Rs.6 lakhs from the complainant in the presence of Sri.Venkatesh Reddy, no suggestion is made or any truth has been not extracted from the mouth of DW.1. Even the role of Sri.Venkatesh Reddy also not denied by the complainant herein. The DW.1 in his further cross-
Judgment 19 C.C.No.9850/2016 examination has denied the suggestion made to the complainant that, the accused himself run the chit. Even he denied, along with complainant and her 2 - 3 friends were also subscribed the chit as a members with the accused also denied by him. He also denied the suggestion that, only he run the 7 chits and later not continued and in that regard, the accused is liable to pay sum of Rs.5,57,600/- to the complainant accordingly, got issued the Exs.P1 to P3 cheques to the complainant, but the DW.1 has denied the very suggestion made by the complainant and thereby withstood his contention.
27. As the accused has raised doubtful circumstances by way of production of rebuttable evidence against the case of complainant and alleged execution and issuance of cheque. Hence, it is the reverse burden created on the complainant by virtue of Sections 118 and 139 of Negotiable Instruments Act.
It is well worthy to cite the decision reported in ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:
(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -
Judgment 20 C.C.No.9850/2016 Something probable has to be brought record -
Burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - Thereafter the said presumption arising under Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural even human conduct and public and private business) -
Evidence Act, 1872 - Section 114 - Presumptions of fact under".
Added to that, in a decision of AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".
28. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused. As discussed earlier, the complainant has utterly failed to extract any Judgment 21 C.C.No.9850/2016 admission in the evidence of DW.1, as to he run the chit transaction and for its payment the accused got issued the questioned cheques at Exs.P1 to P3. From the suggestion made to DW.1, it made clear that, the complainant got paid 7 chits premium amount, therefore, for its payment, the accused got issued the Exs.P1 to P3 cheques. If at all, the accused were run the chit, as alleged by the complainant, the complainant could have been suggested to DW.1 as to, what was the chit amount, what was its premium, how many members were subscribed and for paying 7 chit premium, how the said amount became Rs.5,57,600/- as alleged by the complainant is not been suggested to the DW.1.
29. To prove the case of complainant, herself choosen to entered into witness box and subjected for cross-examination. Wherein, she deposed, accused, his wife and Sri.Venkatesh Reddy together were run Manjunath Enterprises and did the Fiber Line Business and also did chit business. But she denies, they are not doing the said business, but only doing the real estate business. The PW.1 by deposing so, she has admitted the knowingness of Sri.Venkatesh Reddy. In her cross-examination to prove her claim, PW.1 has deposed that:
Judgment 22 C.C.No.9850/2016 "£Á£ÀÄ 2015 £Éà E¸À«AiÀÄ°è DgÉÆæAiÉÆA¢UÉ 10 ®PÀëzÀ aÃnUÉ ¸ÀzÀ¸Àå¼ÁVzÉÝ. ªÀiÁ¹PÀ 20 ¸Á«gÀ PÀAvÀÄ D aÃnUÉ PÀlÄÖwÛzÉÝ. 8 wAUÀ¼ÀªÀgÉUÉ DgÉÆæ aÃnAiÀÄ£ÀÄß £Àqɹ, §½PÀ ¤°è¹zÀÝgÀÄ. aÃnAiÀ£ÀÄß DgÉÆæAiÀÉÄà vÉUÉzÀÄPÉƼÀÄîwÛzÀÝgÀÄ. CzÀ£ÀÄß EvÀgÀ ¸ÀzÀ¸ÀågÀÄ ¥Àæ²ß¹zÀ PÁgÀt DgÉÆæ aÃnAiÀÄ£ÀÄß ¤°è¹zÀÝgÀÄ. £Á£ÀÄ aÃnAiÀÄ ¸ÀzÀ¸Àå¼ÁVzÉÝ JAzÀÄ w½¸À®Ä DgÉÆæ £À£ÀUÉ ¥ÀŸÀÛPÀ §gÉzÀÄPÉÆnÖzÁÝgÉ ºÁUÀÆ ZÉPÀÌ£ÀÄß ¤ÃrgÀĪÀÅzÀgÀ «£ÀB ¨ÉÃgÉ zÁR¯É E®è."
30. On going through the said testimony of PW.1, she deposed, in the year 2015, she subscribed Rs.10 lakhs chit with accused and got paid monthly premium of Rs.20,000/- and paid for the period of 8 months and later the accused stopped the chit. Since, accused himself got bid the chit, other members were questioned, he stopped the running of chit business. She categorically deposed, in order to show that, she was subscribed for chit with accused, he got issued book to the complainant and except the cheques issued by the accused, she had no other documents. The said testimony of PW.1 discloses, she is claiming to paid the chit installments amount of Rs.20,000/- for the period of 8 months, then it become Rs.1,60,000/-, not comes amount covered under the cheques at Exs.P1 to P3 of Rs.5,57,600/-. In that regard, she has not explained, why the said huge amount were entered into in Judgment 23 C.C.No.9850/2016 the questioned cheques. In order to show that, the accused run the chit, book issued by him is with the complainant, but why she not produced the same before this court is not been explained. In that regard, no suggestion is made to DW.1 also. The statement of PW.1 discloses, except the cheques issued by the accused, he also not having any other document. Under such circumstances, what happened to the book issued by the accused, as she deposed, which is material document to establish her case, but not produced before this court. In her cross-examination she deposed that, she was doing saree selling business and having the monthly income of Rs.20,000/- to Rs.25,000/- and denied the running of chit business.
31. The PW.1 categorically denied, accused his wife and Sri.Venkatesh Reddy together came with complainant and borrowed loan of Rs.6 lakhs. Though accused has asserted the borrowing of loan of Rs.6 lakhs, the complainant has been denied the very same suggestion. It is significant fact to note that, it was the defence of accused towards the borrowing of loan of Rs.6 lakhs by them, on the monthly interest at 10% and for few months paid the interest. The cross-examination of PW.1 also suggested the new defence of the accused that, complainant also, accused and his wife took loan of Rs.1,80,000/- and by deducting the same Judgment 24 C.C.No.9850/2016 the complainant got paid remaining amount of Rs.4,20,000/- to the accused and his wife, in that connection 3 cheques were taken from him is been denied by the PW.1. In that connection, the accused gave questioned cheques at Exs.P1 to P3 to the complainant is been denied by the PW.1. Though, PW.1 has deposed, took 3 cheques of the accused in connection to the loan of Rs.6 lakhs, she categorically admitted in her cross-examination that:
"¤¦-1 jAzÀ 3 ZÉPÀÄÌUÀ¼À£ÀÄß DgÉÆæ¬ÄAzÀ ¥ÀqÉ¢zÀÝ®èzÉ, ªÉAPÀmÉñÀgÉrجÄAzÀ £Á£ÀÄ ¨ÉÃgÉ ZÉPÀÄÌ gÀÆ.3 ®PÀëPÉÌ ¥ÀqÉ¢zÉÝÃ£É JAzÀgÉ ¸Àj. ªÉAPÀmÉñïgÉrØ 3 ®PÀëPÉÌ ZÉPÀÌ£ÀÄß £À£ÀUÉ ¤Ãr, DgÉÆæ¬ÄAzÀ ¥ÀqÉzÀAvÀºÀ ¤¦-1 jAzÀ 3 ZÉPÀÄÌUÀ¼À£ÀÄß DvÀ¤UÉ ªÀÄgÀ½¸ÀĪÀAvÉ w½¹zÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæ ªÉAPÀmÉñïgÉrØ 3 ®PÀëPÉÌ ZÉPÀÌ£ÀÄß ¤ÃrzÀ §½zÀ ¤¦-1 jAzÀ 3 ZÉPÀÄÌUÀ¼À£ÀÄß ªÀÄgÀ½¸ÀĪÀAvÉ £À£Àß ªÀÄ£É §½ §AzÀÄ PÉýPÀÆAqÁUÀ, £Á£ÀÄ UÀ¯ÁmÉ ªÀiÁr PÀ¼ÀÄ»¹zÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. D ¸ÀA§AzÀs DgÉÀÆæ £À£Àß «gÀÄzÀÞ ªÀiÁUÀr gÀ¸ÉÛ ¥ÉÇðøï oÁuÉAiÀÄ°è ¢.26.01.2016 gÀAzÀÄ zÀÆgÀÄ zÁR°¹zÁÝgÉ JAzÀgÉ ¸ÀjAiÀÄ®è."
32. Though PW.1 has denied, the accused, his wife and Sri.Venkatesh Reddy together borrowed the loan of Rs.6 lakhs on the security of 3 cheques of the accused. In her further cross- examination, she has categorically admitted that, apart from she Judgment 25 C.C.No.9850/2016 took Exs.P1 to P3 cheques from the accused herein, she also took cheque from Sri.Venkatesh Reddy for Rs.3 lakhs is been clearly admitted by the PW.1. But she denied the suggestion that, Sri.Venkatesh Reddy by gave cheque for Rs.3 lakhs to the complainant and informed her that, return the cheques of the accused at Exs.P1 to P3, is been denied by her. Since, Sri.Venkatesh Reddy asked to return those cheques of accused by came to her house and she made galata and send them back. In that regard, accused on 26.01.2016 lodged complaint against the complainant herein is been denied by the PW.1. Therefore, the lodging of complaint at Ex.D1 is to be seen.
33. On going through the Ex.D1 it discloses, the accused herein on 26.01.2016 at 11.30 a.m. lodged complaint against one Sri.Satish and complainant herein. On close perusal of the allegations made therein, wherein he alleged that, he along with his wife Smt.Bindhushree and Sri.Venkatesh Reddy being partners did the real estate business. The above 3 persons together borrowed the loan of Rs.6 lakhs from Sri.Satish and Smt.Uma, during the month of February, 2015 on the monthly interest at 10%. Accordingly, they have paid the interest regularly to them. The accused and others were joined chit with the complainant, in that connection by deducting the chit amount of Judgment 26 C.C.No.9850/2016 Rs.1,80,000/- payable to the accused, remaining amount of Rs.4,20,000/-, the accused gave cheques at Exs.P1 to P3. Wherein, it also alleged that, since the accused had financial problem for repayment of loan to the complainant and Sri.Satish, on their behalf Sri.Venkatesh Reddy gave cheque for Rs.3 lakhs to Sri.Satish and Smt.Uma. On 25.01.2016, when accused and his wife were not in home, night at about 10.30 p.m. Sri.Satish and Smt.Uma along with Smt.Sulochana and their friends came to their house and abused them. Even, informed the owner of the house to quit the accused from rented house. Sri.Satish by knocking the door of the house, threatened the children of accused. Hence, not to made that galata lodged that complaint before the Police Station.
34. On going through the said complaint it is dated:26.01.2016, wherein whatever the defence taken by the accused could have been seen. Whatever the copy of complaint is lodged by the accused, it is subsequent to the cheques dated:05.11.2015 and 30.11.2015 produced at Exs.P1 to P3. Even, the said complaint is one day earlier to presentation of cheques Exs.P1 to P3, dated:27.01.2016 as found in banker slip. So, the Ex.D1 complaint discloses, one day earlier to presentation of cheques, the accused has lodged complaint before the jurisdictional Police Judgment 27 C.C.No.9850/2016 Station. Therefore, the Ex.D1 though it is not substantial evidence, it reveal the alleged transaction held between complainant and accused. It is significant fact to note that, whatever the money transaction alleged to be held between accused, his wife and Sri.Venkatesh Reddy with complainant, the PW.1 has been categorically denied. Therefore, in prove the said loan transaction is not a criteria in appreciate the materials.
35. On going through the Exs.D2 & D3 - stop payment instructions given by the accused through his banker viz., Syndicate Bank, which discloses, on 19.11.2015 itself he gave stop payment instruction by mentioning the cheques bearing No.364086, dated:05.11.2016 for sum of Rs.2 lakhs, cheque bearing No.364087 dated:30.11.2015 for sum of Rs.2,28,800/- and another cheque bearing No.364088 dated:30.11.2015 for sum of Rs.1,28,800/-. Wherein it clearly mentioned, cheques were issued to the complainant herein as mentioned in Sl.No.8 on the request letter. Wherein, specifically mentioned about the stop payment of the cheque, which is produced by complainant herein as per Exs.D2 and D3. Therefore, it made clear that, in order to avoid the liability accrued under the Exs.P1 to P3 cheques, before their presentation as found in banker slips at Exs.P4 to P6 dated:27.01.2016, much earlier the accused got issued the stop Judgment 28 C.C.No.9850/2016 payment instruction letters at Exs.D2 and D3. No doubt, the Ex.D2 is dated:19.11.2015 in respect of cheque at Exs.P2 and P3 and in respect of Ex.P1-cheque the stop payment instructions had given by the accused on 26.11.2016 as per Ex.D3. As per the same, it made clear that, much earlier the presentation of the cheque, the accused gave stop payment instruction to his banker, accordingly, questioned cheques were got dishonoured as per banker slips at Exs.P4 to P6. Thereby, the accused has safeguarded his interest of misuse of questioned cheques at Exs.P1 to P3 much earlier.
36. As made mentioned earlier, it made clear that, the PW.1 categorically admitted the receipt of cheques at Exs.P1 to P3 from accused apart from receipt of cheque for Rs.3 lakhs from Sri.Venkatesh Reddy. If at all, she got received separate cheques from accused and Sri.Venkatesh Reddy, it is in respect of which transaction it requires to explain by the complainant, but the same is lack. When Sri.Venkatesh Reddy is part with the complainant, what was the compelling circumstances to the complainant needs to collect another cheque for Rs.3 lakhs from him, if his contention were to be true. Therefore, though got receipt of cheque for Rs.3 lakhs from Sri.Venkatesh Reddy, it is the complainant needs to return whatever the cheques got obtained Judgment 29 C.C.No.9850/2016 from the accused needs to return by her, as Sri.Venkatesh Reddy got indemnify the liability accrued from accused as found in Ex.D1 complaint. The accused by way of production of complaint at Ex.D2, has made out sufficient grounds to disbelieve the very contention of the complainant. Therefore, in view of the complainant has denied herself got run the chit and alleged lent of loan of Rs.6 lakhs to the accused, his wife and Sri.Venkatesh Reddy, it is her to demonstrate the running of chit business by the accused himself. In that line, it requires to focus on cross- examination of PW.1.
"DgÉÆæAiÉÆA¢UÉ £Á£ÀÄ 10 ®PÀëzÀ MAzÀÄ aÃnAiÀÄ£ÀÄß ºÁQzÀÄÝ, ºÀgÁfUÉ ªÉÆzÀ®Ä gÀÆB20,000/- PÀAvÁVzÀÄÝ, £ÀAvÀgÀzÀ°è D aÃn ªÉÆvÀÛ ªÀiÁ¹PÀ gÀÆB13,000/- DVvÀÄÛ. aÃnAiÀÄ£ÀÄß £Á£ÀÄ PÀÆV®è. £À£ÀßzÀÄ MAzÉà aÃnAiÀiÁVzÀÄÝ, £À£Àß ¸ÉûßvÀgÀÄ PÀÆr 8 d£À aÃn ºÁQzÉݪÀÅ. 8 wAUÀ¼ÀÄ DgÉÆæ aÃnAiÀÄ£ÀÄß ºÁQzÀÝgÀÄ. DgÉÆæ £À£ÀUÉ ¥ÀŸÀÛPÀzÀ°è PÀAw£À PÀ¼ÉzÀ §UÉÎ ¸À» ªÀiÁr PÉÆnÖzÀÝgÀÄ, £À£Àß §½ EzÉ. DgÉÆæ D jÃw aÃn £ÀqɸÀÄvÁÛ EgÀ°®è ºÁUÀÆ AiÀiÁªÀÅzÉà ºÀtªÀ£ÀÄß ¹éÃPÀj¹, ¥ÀŸÀÛzÀ°è §gÉzÀÄ PÉÆnÖ®è JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQë ¸ÀévÀB ªÀÄÄAzÀĪÀjzÀÄ ªÀÄAdÄ£Áxï JAlgï¥ÉçʸÀ¸ï PÀZÉÃjAiÀÄ°è aÃn ªÀåªÀºÁgÀ £ÀqɸÀÄwÛzÀÝgÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. DgÉÆæ 8 PÀAvÀÄUÀ¼À£ÀÄß £À¤ßAzÀ PÀnÖ¹PÉÆArzÀÝgÀÄ. D ªÀgÉUÉ £À£Àß ºÀt gÀÆB1,60,000/- jAzÀ gÀÆB1,70,000/- gÀªÀgÉUÉ £À¤ßAzÀ Judgment 30 C.C.No.9850/2016 DgÉÆæ ¥ÀqÉ¢zÀÝgÀÄ. £Á£ÀÄ, ¸Àwñï, ¸ÀįÉÆÃZÀ£Á, PÉÆêÀįÁ, CAd°, EAzÁæ gÀªÀgÀ£ÀÄß DgÉÆæ £ÀqɹzÀ aÃnUÉ ¸ÉÃj¹zÉÝ£ÀÄ. D «µÀAiÀĪÀ£ÀÄß F ¥ÀæPÀgÀtzÀ°è F ªÉÆzÀ®Ä ºÉý®è JAzÀgÉ £É£À¦®è. EvÀgÀjAzÀ ZÉPï£À ºÀtªÀ£ÀÄß DgÉÆæ ªÀ¸ÀÆ®Ä ªÀiÁqÀ®Ä C¢üPÁgÀ ¥ÀvÀæ §gɬĹPÀÉÆAr®è. ¸ÁQë ¸ÀévÀB ªÀÄÄAzÀĪÀjzÀÄ £ÁªÉ®ègÀÆ ºÉÆÃV DgÉÆæUÉ aÃn ºÀtªÀ£ÀÄß ªÀÄgÀ½¸À®Ä PÉýzÁUÀ, DvÀ J®ègÀ ¥ÀgÀªÁV PÀÆqÀ ZÉPï£ÀÄß £À£ÀUÉ ¤ÃrzÀgÀÄ."
37. On close scanning of the evidence of PW.1, she categorically deposed, she was subscribed chit for Rs.10 lakhs with accused for monthly premium of Rs.20,000/-. Later it would reduced to Rs.13,000/-. She categorically deposed, she not bid the chit and she stated, along with her, to her 8 friends were joined chit. She categorically deposed, accused got issued book and whenever she made payment by affixing his signature and got issued endorsements on the same to the complainant and the said book is still with the complainant. By deposing so, 2nd time she reasserted, she had a book, wherein, the accused has endorsed as to receipt of chit money. Therefore, the said document is vital piece of document to establish the accused has run the chit, wherein, she joined as subscriber. Therefore, the production of said document is must to establish the case of complainant, but for the reasons better known to her, she with Judgment 31 C.C.No.9850/2016 held the same, is one of the strong suspicious circumstances to accept the very contention of the complainant.
38. It is significant fact to note that, accused has denied the very running of chit and got executed the endorsement in favour of complainant. Though, PW.1 has volunteers, accused run the chit in Manjunath Enterprises, by production of the said document is must, but for the reasons better known to her not produced.
39. The PW.1 has categorically deposed, she paid premium for 8 months about the amount of Rs.1,60,000/- to Rs.1,70,000/-. If at all, she joined chit with accused, her claim is only paid Rs.1,60,000/- to Rs.1,70,000/- and admittedly it reveal that, she not paid the amount of Rs.5,57,600/- as covered under the Exs.P1 to P3. When she paid maximum Rs.1,70,000/-, she only needs to got repay from the accused that much amount and she not entitled for the huge amount of Rs.5,57,600/-. Therefore, if the contention of the complainant were to be true, she needs to explain against the liability of Rs.1,70,000/-, why the accused liable to pay Rs.5,57,600/- to the complainant, but in that regard, no necessary pleading nor explanation in her cross-examination if forthcoming.
Judgment 32 C.C.No.9850/2016
40. No doubt, in her cross-examination as reproduced above, PW.1 has deposed, she joined one Sri.Satish, Smt.Sulochana, Smt.Komala, Smt.Anjali and Sri.Indra with the accused. She deposed that, she not discloses, about mentioning the same earlier in the present case. Even she herself not deposed for repayment of chit amount to the complainant and others, the accused got issued Exs.P1 to P3 cheques to the complainant alone. When suggested to PW.1 that, to recover chit amount of others, has she took any power of attorney from them, she deposed, no such authorization got obtained, but she volunteers that, when complainant and others went to accused requesting that, returning of chit amount, on behalf of others also, the accused gave questioned cheques at Exs.P1 to P3. By deposing so, the PW.1 has try to convince that, whatever the amount covered under the Exs.P1 to P3 is not payable to the complainant alone is also payable to other subscribers also. If so, what was the exact amount payable to each one of others, either she not explained or not choosen to examine them for the reasons best known to her. If the amount of Rs.1,70,000/- is only payable to the complainant, in the absence of others she needs to file case for recover the said amount, but she did not choosen to do so. In order to claim cheques amount of Rs.5,57,600/-, she needs to Judgment 33 C.C.No.9850/2016 discloses, what quantum of amount payable by the accused to the others, which included in the said cheques apart from complainant, no explanation is furnished by the complainant. If at all, the other subscribers are also entitled for chit amount, which covers under Exs.P1 to P3, definitely, it is the complainant needs to examine those subscribers, but no such effort is been made by her. Even she not discloses their names and particulars, as to entitlement of the amount covered under the cheques at Exs.P1 to P3. From which, it made clear that, against her claim of Rs.1,70,000/- maximum, she brought the present case by mentioning the cheques amount of Rs.5,57,600/- is not acceptable theory put forth by the complainant. The complainant has denied the alleged loan transaction of Rs.6 lakhs, then why she got received cheque from Sri.Venkatesh Reddy is also not been satisfactorily explained.
41. In the present case, either the complainant or accused have not disclosing true affairs, but on imaginary grounds by creating obligation of each other brought the present case. Thereby, complainant utterly failed to prove the mandates of law. Therefore, mere because of the complainant got possessed the questioned cheques at Exs.P1 to P3 pertaining to the accused, it would not creates any obligation on the accused. The PW.1 Judgment 34 C.C.No.9850/2016 admitted the involvement of others also, for recover chit amount, which covered under Exs.P1 to P3, but no materials have been furnished by her to establish the same. She has utterly failed to plead and prove her claim in order to create obligation on the accused. Therefore, in view of the complainant has failed to prove her case beyond the reasonable doubt, the accused is entitled for benefit of doubt of acquittal.
42. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, she fails to demonstrate her very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
In the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
"Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to Judgment 35 C.C.No.9850/2016 the complainant and the latter received if from the former".
43. 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 his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act - Rebuttal of cheque in question was allegedly issued 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".
44. 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 Judgment 36 C.C.No.9850/2016 discussed above, the complainant has failed to prove with cogent evidence. 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.
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".
45. In this case on hand also, on the lack of the complaint failed to prove the alleged transaction, it can gather the probability that, he is not liable to pay Exs.P1 to P3 cheques amount of Rs.5,57,600/- and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence. 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 cheques, who is not at all liable to pay the cheques amount. The accused has taken his 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 Judgment 37 C.C.No.9850/2016 placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheques for discharge of liability of Rs.5,57,600/-. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
46. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheques Exs.P1 to P3 in discharge of his 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.
47. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheques pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheques in question were 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 Judgment 38 C.C.No.9850/2016 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.
48. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove her contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.5,57,600/- legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove her case beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
Judgment 39 C.C.No.9850/2016
49. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 5th day of October - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Umadevi List of Exhibits marked on behalf of Complainant:
Exs.P1 to P3 : Original Cheques Exs.P1(a) to P3(a) : Signatures of accused Exs.P4 to P6 : Bank endorsements Ex.P7 : Office copy of legal notice Ex.P8 : Postal receipt Ex.P9 : Postal Acknowledgment card Ex.P10 : Private complaint Ex.P10(a) : Signature of complainant Ex.P10 : Reply notice dtd:17.04.2013 Judgment 40 C.C.No.9850/2016
List of Witnesses examined on behalf of the defence:
DW.1 : Muthuraj List of Exhibits marked on behalf of defence:
Ex.D1 : True copy of complaint
Exs.D2 & D3 : True copies of stop payment intimation letters
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 41 C.C.No.9850/2016
05.10.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are absent.
No representation from both side advocates, despite, web-host the case proceedings and intimate the date of pronouncement of judgment. Hence, as per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.