Bangalore District Court
W/O Bheeme Gowda vs Is Permitted To Cross-Examine ... on 27 September, 2021
SCCH-2 1 C.C.22459/2017
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL
CAUSES AND ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU (SCCH-2)
C.C. NO: 22459/2017
Present: Smt. Shainey K.M. BAL.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACMM, Bengaluru.
Dated: On this 27th day of September, 2021.
JUDGMENT U/S 355 OF CR.P.C. 1973.
1. Sl. no. of the Case C.C.No.22459/2017
:
2. The date of commission
of the offence 11.09.2017
:
3. Name of the Smt. Bhagya B,
complainant: W/o Bheeme Gowda,
Aged about 36 years,
Residing at No. 28, 8th Cross,
24th Main Agara, HSR Layout,
1st Sector, Sarjapura Main
Road, Bangalore-560102.
(By Sri. M. Sathish.,
Advocate)
SCCH-2 2 C.C.22459/2017
4. Name of the accused Sri. Dharshan,
: S;o Late Umesha,
Aged bout 30 years,
Residing at Soppanahalli (V),
Singaapura (P), Palya (H),
Halur (T), Hassan (D)
(By Sri.Murali S., Advocate)
5. The offence complained Under Section 138 of the
of or proves Negotiable Instrument Act.
:
6. Plea of the accused
and his examination Pleaded not guilty.
:
7. Final Order Accused is acquitted.
:
8. Date of such order
for the following 27.09.2021.
:
JUDGMENT
This is private complaint filed against the accused for the offences punishable under section 138 read with section 142 of N.I Act (hereinafter referred to as 'the Act') . This complaint is filed by the complainant against the accused under SCCH-2 3 C.C.22459/2017 Sec.200 of Cr. P. C. for the offence punishable under Section 138 of the Negotiable Instruments Act. Cognizance of the offence is taken on presentation of the private complaint and ordered to register the criminal case, as there were prima facie materials to proceed against the accused.
02. The brief facts of the complainant's case is as follows:
It is the contention of complainant that, in the month of December 2016 the accused has borrowed hand loan of Rs. 1,50,000/- from the complainant for his financial necessities and promised to return the said amount within 6 months. The accused issued 2 cheques bearing No.857656 for Rs. 1,00,000/- dated 10.05.2017 and Cheque No. 857658 for Rs.49,999/- dated 15.05.2017 both cheques were drawn on Andra Bank, Koramangala Branch, Bengaluru and promised to maintain sufficient amount in his account. The complainant has presented the said cheque through her bankers State Bank of India, SCCH-2 4 C.C.22459/2017 Parangipalya, HSR 2nd Sector, Bengaluru. The said cheque came to be dishonoured on 07.07.2017 for the reason "funds insufficient". That on 02.08.2017, the complainant has issued legal notice to the accused through RPAD and same was served on 22.08.2017. However, the accused neither repaid the amount nor replied the legal notice. Hence this complainant.
03. On being served the summons, the Accused appeared through his counsel and got released him on bail. Plea of the Accused has been recorded by explaining the substances of accusation. Accused pleaded not guilty and claims to be tried. The Accused filed application under Section 145 (2) of N.I Act, seeking permission to cross-examine Complainant and to proceed in accordance with Law. Accordingly, the application is allowed and the Accused is permitted to cross-examine Complainant/PW-
1. SCCH-2 5 C.C.22459/2017
04. In support of his case, complainant got examined herself as PW-1 and produced ten documents marked at Ex.P.1 to Ex.P.10.
05. After closure of Complainant's evidence, the Accused was examined under Section 313 of Cr.P.C. by explaining the incriminating circumstances appearing in the evidence of the Complainant. The Accused has denied the prosecution version in toto. The Accused got examined him as DW1. Ex.D:1 marked in defence evidence.
06. Heard arguments of Complainant & Accused. The learned counsel for Accused has also relied upon the following citations in support of accused's defence.
07. Now, following points arise for my consideration for disposal of case;
POINTS
1. Whether Complainant proves beyond all reasonable doubt that Accused has committed an offence punishable under Section 138 of Negotiable Instruments SCCH-2 6 C.C.22459/2017 Act?
2. Whether accused has rebutted the presumption as contemplated u/sec 139 of N.I Act?
3. What order?
08. My answers to the above points are as follows:
Point no:1 : In the negative.
Point no:2: In the affirmative.
Point no.3: As per final order for the
following:
:REASONS:
09. Point no:1 & 2: For sake of convenience and to
avoid repetition of facts, these points are taken up for common discussion as here under.
10. This is a private complaint filed against the accused for the offence punishable under sec 138 read with section 142 of NI Act. To prove his case, the complainant examined herself as Pw:1 and filed affidavit by way of examination in chief. Pw:1 has reiterated the averments SCCH-2 7 C.C.22459/2017 of complainant in his evidence. In support of her evidence, Pw:1 has produced the cheques in question allegedly issued by accused at ExP:1 and 2 respectively. The cheques were returned by Corporation bank with an endorsement stating funds insufficient as per Ex.P.3 and
4. Thereafter, the complainant issued legal notice to accused calling upon him to repay the loan amount of Rs 1,49,999/- lakhs and said notice is marked as ExP:5. ExP:6 & 7 are the postal receipts and Ex.P.8 is the registered postal acknowledgement in respect of said notice. ExP:9 is the reply notice dtd; 18.08.2017. ExP:10 is the statement of account of the complainant. Accused has cross examined the Pw:1 in detail.
11. It is the case of the complainant that she given Rs.1,50,000/- to the accused in the month of December 2016 as hand loan and he agreed to repay the same within 6 months. It is just and proper to state the facts which is not in dispute. The complainant is working in SBI SCCH-2 8 C.C.22459/2017 Bank as house Keeping since 3 years. The complainant has two daughters who are married and living with their respective husbands. She performed marriage of her elder daughter on 14.04.2013 and marriage of the 2 nd daughter was performed on 20.04.2014. She spent Rs.6,00,000/- to perform the marriage of her elder daughter. In cross examination PW-1 admitted that accused is none other than her son-in-law whom with her younger daughter got married.
12. The evidence of PW-1 is contradicting with the pleading narrated in the complaint.
Firstly in cross examination she deposed that she has given loan to accused in the month of March 2017. However in complaint, as well as Ex.P5 legal notice it is stated that she lent money to accused in the month of December 2016. The contradicting statement given by PW-1 creates doubt regarding the existence of alleged loan transaction.
SCCH-2 9 C.C.22459/2017
Secondly to prove her financial capacity to lend money she deposed that she has pledged her gold for Rs.1,50,000/- in order to give to same to accused as loan. To substantiate her contention she has not produced the receipt issued by Pan broker receipt. She produced Ex.P10 the statement from 01.03.2016 to 01.04.2018. The entries made in Ex.P10 pertaining to period form 09.08.2016 to 25.12.2016 are only relevant in this case. The entries made in Ex.P10 for the period from 09.08.2016 to 25.12.2016 reveals that she had only Rs.1106 in her account as on 08.12.2016 and Rs.12 was in her account as on 25.12.2016. The details of gold loan not been mentioned in this statement. Therefore Ex.P10 is not helpful to the complainant to prove her financial capacity to lend money to accused.
13. Leaned counsel for complainant argued that after demonetarization declared by the Central Govt. of India , the complainant herein has given her invalid currency SCCH-2 10 C.C.22459/2017 notes of Rs.1,50,000/- to accused for exchange with new currency notes. But after getting exchange the old notes with new currency notes, accused did not return the amount to the complainant and he issued cheque in question to complainant for return of said amount taken for the complainant for exchange of currency notes. However there is no such pleading in the complaint or legal notice. The pleadings and evidence and also explanation given by learned counsel for complainant at the time of argument regarding the nature of monetary transaction between the parties are contradicting to each other. Moreover, the financial capacity of complainant to lend money is not satisfactorily established.
14. Hon'ble apex court of India had considered section 118, (a), 138 and 139 of NI Act in case between M.S Narayana Menon Vs State of Keral (2006) 6 SCC 39. It was SCCH-2 11 C.C.22459/2017 held that presumption both under sections 118 (a) and 139 of Act are rebuttable in nature. What would be the effect of the expressions "may presume" "shall presume"
and "conclusive proof" has been considered by hon'ble Supreme Court of India in Union of India Vs. Pramod Gupta (2005) 12 SCC 1. It was noted in M.S Narayana Menon case, that the expression "shall presume" cannot be held to be Synonymous with conclusive proof. Applying the said definitions of "proved" or "disproved"
to the principle behind sec. 118(a) of the NI Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstance of the particular case, to act upon the supposition that the consideration does not exist. SCCH-2 12 C.C.22459/2017
15. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
16. In Krishna Janardhan Bhat V Dattatraya G Hegde, (2008) 2 SCC (Cri) 166, the hon'ble Apex could held that an accused for discharging the burden of proof placed upon him under a statue need not examine himself. He may discharge his burden on the basis of the material already brought on record. An accused has a constitutional right to maintain silence. "Standard of proof on the part of an accused and that of the prosecution in a criminal case is different." The standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities".
17. In Kumar Exports Vs Sharma Carpets (2009) 2 SCC 513, hon'ble apex court, again examined as to when the complainant discharges the burden to prove that the SCCH-2 13 C.C.22459/2017 instrument was executed and when the burden shall be shifted (In paras 18 to 20).
18. In Rangappa Vs. Sri Mohan 2010 (11) SCC 441, hon'ble Apex court held that the presumption mandated by sec. 139 of NI Act, does indeed include the existence of a legally enforceable debt or liability, which of course, is in the nature of rebuttable presumption (in para 26). In several decisions, hon'ble apex courts have held that it is not necessary for the accused to come in the witness box to support his defence.
19. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on the cheque having been admitted, a presumption shall be raised under sec 139 of Act, that the cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused.
SCCH-2 14 C.C.22459/2017
20. Firstly, the date of alleged loan transaction is contradicting with the averments made in the complaint as well as evidence.
21. Secondly, it is an admitted fact that, P.W.1/complainant herein never had Rs.1,50,000/- either in her hand nor in her bank account. The Ex.P10 the statement of account is also not helpful to the complainant to prove her financial capacity to lend money. My reason is supported by the decision of Hon'ble Supreme Court reported in 2007 AIR SCW 6736 in the case between John K. John Vs. Tom Varghese and Another and the decision of hon'ble High court of Karnataka reported in a case between
1. Shankara Narayana V/ K. Annappa Prabhu in Crl. Appeal no:987-2011 dtd; 2.12.2019. 2) Smt. Shashikala Vs. Sri Nyatappa in Crl.A no: 901-2010 dtd: 22.9.2020. 3) Ashok Tatappa Kotiwale Vs. Sevantha Sukumar Bagi in Crl.A no: 100026-2015 dtd; 2.12.2020. 4) Yallappa Basappa Hadapad Vs. SCCH-2 15 C.C.22459/2017 Nabisab Rajesab Nadaf, in Crl.A no: 100059-2014 dtd: 20.11.2010. 5) T. Venkataramaiah Vs. Esha G S/o Gangadhar in Crl.A no: 498-2011 dtd. 25.9.2020, and 5) Basalingappa v. Mudibaappa, 2019 (5) SCC 418, AIR 2019 SC 1983.
22. Based on evidence led by defence, this court is inclined to hold that the accused has raised a probable defence and complainant failed to prove his financial capacity. Therefore, the complainant is failed establish the advancement of loan and his financial capacity to lend money by placing cogent and corroborative evidence. Hence Point no:1 is answered in the negative and point no:2 in the affirmative.
23. Point no:3 : For the reasons discussed above in Point no:1 and 2, I, proceed to pass the following:
ORDER Acting U/sec 255 (1) of Cr.P.C, the accused is not found guilty and therefore, acquitted him SCCH-2 16 C.C.22459/2017 for the offence punishable under Section 138 of the Negotiable Instrument Act.
The bail bond of accused and that of surety is hereby stands cancelled.
(Dictated to the stenographer on laptop, typed by her, corrected, print out taken, signed, then pronounced in open court on this the 27th day of September 2021) (Shainey K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT PW.1 : Smt. Bhagya B LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1&2 : Cheques
Ex.P.1(a) & 2(a): Signature of accused
Ex.P.3& 4 : Bank endorsements.
Ex.P.5 : Legal Notice
Ex.P.6 &7 : Postal receipts.
Ex.P. 8 : Postal Acknowledgment.
Ex.P.9 : Reply notice.
Ex.P.10 : Bank statement
SCCH-2 17 C.C.22459/2017
LIST OF WITNESSES EXAMINED BY ACCUSED D.W.1 : Sri. Dharshan LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED Ex.D.1 : Bank Statement (Smt. Shainey K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.