Bangalore District Court
Krishnappa vs Malini.V on 28 July, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 28th day of July - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.16596/2015
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Krishnappa,
S/o. Gangaguddaiah,
Aged about 38 years,
R/at No.42, 6th Cross,
11th Main, Vrushabhavathi Nagar,
Kamakshipalya, Bengaluru-79.
(Rep. by Sri.Manohar.B.K, Adv.)
V/S
Accused : Malini.V,
Husband name not known,
Aged about 32 years,
R/at. No.5C 412, 5th Cross,
Kasturinagar, Bengaluru-43.
(Rep.by Sri.M.K.Girish, 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 : 28.07.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.16596/2015
JUDGMENT
The complainant has presented the instant complaint against the accused on 29.04.2015 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.5 lakhs.
2. The facts raised by the complainant in the complaint in brief is as follows:
The complainant has averred that, the accused and complainant are friends and they knew each other from last several years. The accused requested him for sum of Rs.5 lakhs to meet his (though accused cited as woman) business commitments as hand loan and had assured that, he (though accused cited as woman) repay the same in the month of November, 2014 along with interest at the rate of 12% p.a. The complainant owing to his (though accused cited as woman) request as paid sum of Rs.5 lakhs in a good faith and on the assurance of same would be return in the month of November, 2014.
The complainant has alleged that, on the 3rd week of November, 2014, when the complainant reminded the accused to discharge his (though accused cited as woman) legal debt amounting in a sum of Rs.5 lakhs, the accused issued a cheque Judgment 3 C.C.No.16596/2015 bearing No.000029 dated:21.11.2014 drawn on Bank of Baroda, Vijayanagar Branch, Bengaluru for sum of Rs.5 lakhs and requested the complainant to present the same in the month of February, 2015, as he (though accused cited as woman) needs to arrange the above amount and had further assured the complainant that, the same would be honoured on presentation.
The complainant has further contended that, he presented the said cheque for encashment on 20.02.2015 through his banker viz., Axis Bank Ltd., M.L.Puram Branch, Bengaluru. To the utter shock and surprise to him, it was informed by him his banker as per memo dated:21.02.2015 that, the said cheque came to be dishonoured for the reasons "Funds Insufficient". Thereafter, the complainant immediately, contacted the accused and intimated the same, wherein, the accused pleaded his (though accused cited as woman) inconvenience and had requested the complainant a week time to arrange amount. Believing his (though accused cited as woman) words and having faith in their friendship, the complainant had waited till 15.03.2015, but the accused did not kept his (though accused cited as woman) promise and failed to arrange the funds.
Judgment 4 C.C.No.16596/2015 The complainant has further alleged that, he had try to contact the accused, but accused avoided to meet him, all efforts made by him went in vain. Therefore, through his counsel he got issued legal notice to the accused on 16.03.2015 by R.P.A.D, the same came to be served on the accused. The accused gave evasive reply on 31.03.2015 and denied to make the payment. Thereby, she 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 grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through her counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to her, wherein, she 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 P9. The PW.1 is Judgment 5 C.C.No.16596/2015 also choosen to examine the Branch Manager of Karnataka State Co-operative Apex Bank, Mahalakshmipuram Branch by name Basavaraj S Sajjan as PW.2. The PW.1 and PW.2 were subjected for cross-examination by the advocate for the accused. In the cross-examination of PW.1, accused counsel got confronted one document and same is marked as Ex.D1.
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 her was recorded. In support of the defence, the accused herself was examined as DW.1, and no documents marked through her. The DW.1 was also subjected for cross-examination by the advocate for the complainant.
7. Both side counsels have submitted their detailed written arguments, apart from adduced oral arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.5,00,000/- as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.000029, dated:21.11.2014 for sum of Judgment 6 C.C.No.16596/2015 Rs.5,00,000/- drawn on Bank of Baroda, Vijayanagar Branch, Bengaluru?
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 :UNDISPUTED FACTS:
10. On going through the rival contentions of the parties, the fact that, the address made mentioned in the complaint cause title pertaining to the complainant and accused is not in dispute. The fact that, questioned cheque and signature therein belongs to the accused is not in dispute. The fact that, the banker slip produced at Ex.P2 issued by the bank and its genuineness is not in dispute. The fact that, the exchange of legal notices between complainant and accused dated:16.03.2015 as per Ex.P3 as well as Ex.P6 dated:31.03.2015 are not in dispute. The fact that, the Ex.P7 is Judgment 7 C.C.No.16596/2015 the bank statement pertaining to the account of complainant for the period from 20.02.2011 till 30.12.2012 is not in dispute. The fact that, in the Ex.D1 photograph the presence of complainant is very much seen is not in dispute. The fact that, as admitted by the PW.1 from the account of accused during the period 2013 on various dates got paid sum of Rs.2,93,000/- by way of NEFT/RTGS as well as from other source transferred to the account of complainant is not in dispute.
11. 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 his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P9, they are:
a) Ex.P1 is the cheque bearing No.000029 issued by the accused for sum of Rs.5 lakhs dated:21.11.2014, drawn on Bank of Baroda, Vijayanagar Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:20.02.2015.
d) Ex.P3 is the Legal Notice dated:16.03.2015.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the Postal Acknowledgment Card.
Judgment 8 C.C.No.16596/2015
g) Ex.P6 is the reply notice dated:31.03.2015 issued by accused through her counsel to the complainant counsel.
h) Ex.P7 is the statement of account pertaining to complainant for the period from 20.12.2011 to 30.12.2012 issued by The Karnataka State Co-
operative Apex Bank Ltd., Bengaluru.
i) Ex.P8 is the colour Xerox copy of credit slip dated:15.12.2012 pertaining to The Karnataka State Co-operative Apex Bank Ltd., Bengaluru and
j) Ex.P9 is the colour Xerox copy of Transfer Debit challan pertaining to The Karnataka State Co- operative Apex Bank Ltd., Bengaluru.
12. That apart, to prove his case, the complainant got choosen to examined examine the Branch Manager of Karnataka State Co- operative Apex Bank, Mahalakshmipuram Branch by name Basavaraj S Sajjan as PW.2. The PW.1 and PW.2 were subjected for cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citations and relied upon same, they are;
a) Crl.A.Nos.61-62 of 2011
b) 2009 (2) SCC 513
13. In order to prove the defence of the accused, she herself choosen to examined as DW.1, she herself not produced any document. The DW.1 was subjected for cross-examination by the advocate for the complainant. At the time of cross-examination of Judgment 9 C.C.No.16596/2015 PW.1, her counsel got confronted one document and same is marked at Ex.D1. It is:
a) Ex.D1 is the photograph.
14. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
15. 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 her as required under Section 313 of Cr.P.C., wherein, the accused denied the incriminating evidence made against her.
16. Wherein, though the PW.1 has denied the knowingness of one K.Chandraiah, when confronted the photograph, he clearly admitted his presence there, therefore, the said photograph got marked at Ex.D1. Later, the complainant choosen to examined his bank manager by name Sri.Basavaraju S Sajjan as PW.2 orally. The PW.2 has deposed that, the Exs.P8 and P9 credit slip and transfer debit challans are in accordance with the original challans maintained in his bank and brought the original and compared with Exs.P8 and P9 since both are tallied each other, Judgment 10 C.C.No.16596/2015 as those original documents are required to PW.2 bank for daily necessity, hence, the originals were retuned. The PW.2 has deposed that, Exs.P8 and P9 credit and transfer debit colour Xerox copies with signature produced before this court is issued by his bank. In that line, he subjected for cross-examination, wherein, has clearly deposed that, in Exs.P8 and P9 there is no mentioned about the dates, on which date it was certified. But he categorically deposed that, Exs.P8 and P9 colour Xerox copies of credit and transfer debit challans were issued by his bank officials. More particularly, the PW.2 has deposed that, in his bank there is no facility of RTGS money transfer. Therefore, it made clear that, the Exs.P8 and P9 the colour Xerox copies of credit slip and transfer debit challans got issued by bank of PW.2 is stands proved, as no contra evidence is been placed. Simultaneously, the PW.2 being the responsible official of his banker has deposed that, there is no facility of RTGS in his bank. Therefore, On meticulous perusal of the Ex.P9 it discloses the name credit slip pertaining to the bank K.S.C. Apex Bank Ltd., Mahalakshmipuram Branch, Bengaluru. The said credit slip dated:15.12.2012 to the Canara Bank account of Malini.V, Basaveshwaranagar Branch, with S.B.Account No.2529101005474 is requested to credit for sum of Rs.5 lakhs. The said credit discloses, the said document Judgment 11 C.C.No.16596/2015 was written by bank of PW.2 to KSC Apex Bank Ltd., Head Office. Wherein, particular discloses the request made to transfer Rs.5 lakhs to the account of Malini.V.
17. On perusal of Ex.P8, though PW.2 has admitted that, it was issued from his banker, it does not discloses about the account number, name and other particulars of the complainant account. Therefore, unless the name of complainant is find on Ex.P8 it cannot be said that, the complainant had made request to his banker to transfer the said money to the account of accused. In the absence of necessary particulars as to name, account details of the complainant it cannot be opined that, Ex.P8 is pertaining to the complainant. Therefore, the Ex.P8 does not repose confidence, as to the complainant had transferred sum of Rs.5 lakhs to the accused.
18. However, the complainant got marked Ex.P9 - colour Xerox copy of Transfer Debit challan, got issued by KSC Apex Bank Ltd., M.L.Puram Branch, Bengaluru dated:15.12.2012. On meticulous perusal of the said document, it discloses that, the debit particulars as SB/20110365/Krishnappa.G, amount towards RTGS and mentioned as Rs.5,00,165/-. On meticulous perusal of Ex.P9, it also does not discloses, the name and account of the Judgment 12 C.C.No.16596/2015 accused, the amount of Rs.5,00,165/- were been debit from the account of complainant directly to the account of accused. Therefore, in order to show that, whatever the amount made mentioned in Exs.P8 and P9 got transferred from the account of complainant to the account of accused as made mentioned therein, the complainant is require to produce his bank statement held in KSC Apex Bank Ltd. On meticulous perusal of the Exs.P8 and P9, it does not reveal that, directly from the account of complainant sum of Rs.5 lakhs has been transferred to the account of accused. The PW.2 has categorically admitted that, his bank had no facility on RTGS. Therefore, it is the complainant has to demonstrate, as he contended sum of Rs.5 lakhs were been transferred from his bank account to the bank account of accused. The Exs.P8 and P9 in the absence of produce the bank statement, either complainant or accused it does not repose confidence.
19. No doubt, the complainant had produced his bank statement at Ex.P7 pertaining to the KSC Apex Bank Ltd., Mahalakshmipuram Branch, Bengaluru for the duration from 20.12.2011 till 30.12.2012. On meticulous perusal of the said statement at Ex.P7 pertaining to the complainant, whatever the amount alleged to be remitted from the account of the Judgment 13 C.C.No.16596/2015 complainant to the account of accused if any, as on 15.12.2012, it should disclose in Ex.P7. On meticulous perusal of the Ex.P7, on 15.12.2012 sum of Rs.4,96,700/- were credited to the account of complainant through instrument No.6747. On the same day sum of Rs.10,000/- were debited by way of clearing. On the very same day sum of Rs.5,00,165/- were transferred by way of RTGS. No particulars has been mentioned as to the which account number or to whom the said amount was debited from the account of the complainant. Though, PW.2 has deposed in his bank there is no facility of RTGS, but against his testimony the Ex.P7 dated:15.12.2012 discloses, the debit of Rs.5,00,165/-.
20. Therefore, in view of the accused has attack on the claim of complainant by contending that, who is stranger to her and she not borrowed any loan, one Chandraiaha took her bank passbook and cheques for doing his chit and money transaction, though he was the government employee with her mother got misused the same through the complainant and filed the false case. Therefore, in view of serious attack made by the accused, the complainant require to produce necessary particulars, as to the passing of consideration of Rs.5 lakhs from his bank account to the account of the accused. In that regard, whatever the documents placed by him at Exs.P7 to P9 does not repose any Judgment 14 C.C.No.16596/2015 confidence. The accused has seriously attack on the genuineness of the said document as to passing of Rs.5 lakhs to the account of accused by way of RTGS. Therefore, the said material document was questioned by the accused, and she was successfully rebutted the claim of complainant, therefore, from the point of Exs.P7 to P9 also the reverse burden is casted on the complainant.
21. It is significant fact to note that, complainant has arrayed the accused by name Smt.Malini.V, she is a female gender, though he knew the said aspect through out the complaint averments and allegations, he averred that, 'he' against 'she'. Even no necessary clarification is made, why time and again pleaded, 'he' instead of 'she' no satisfactory explanation is forth coming. If he knew, the accused could he plead as such doubt would arise. Moreover, the complainant though contended, she is the married, but does not disclose the name of her, her husband though alleged, she is friend to him from last over several years. Without knowing the husband of the accused, on which certainty the complainant came forward to deal monetary transaction with the accused is also not satisfactorily explained.
Judgment 15 C.C.No.16596/2015
22. It is significant fact to note that, the accused from the movement of got receipt of legal notice at Ex.P3, she attack on the claim of complainant by way of caused reply at Ex.P6. Wherein, she categorically took up the contention that, the notice at Ex.P5 was issued unconcern person, it was real person behind of the things in issuing notice was Sri.Chandraiah, who is colleague of her mother Indhumathy. The accused in the reply notice has contended that, she neither due sum of Rs.5 lakhs as alleged by the complainant nor issued questioned cheque to the complainant for payment of any debt or liability. More categorically she pleaded that, K.Chandraiah was in custody of certain blank cheques of accused as well as her mother and same got misused by the complainant and directed the complainant not to foist a false case. Therefore, it made clear that, by way of reply itself from the inception, the accused got attack on the claim of complainant, therefore, the complainant require to plea necessary facts and circumstances, as to his financial capacity as well as transfer of alleged amount of Rs.5 lakhs to the account of accused, and in turn, the accused got issued the questioned cheque to him for discharge of legal liability.
23. No doubt, the complainant brought the present case based on the questioned cheque at Ex.P1 by contending that, the Judgment 16 C.C.No.16596/2015 accused due sum of Rs.5 lakhs for its repayment, she got issued the same, the same came to be dishonoured, despite, got issued legal notice at Ex.P3, she not paid money, hence, the complaint. Whereas, from the inception the accused by way of cause reply at Ex.P6 as well as by contested the matter severally in the present case and took up the defence that, the complainant is unknown to her, who is utter stranger to her and the colleague of her mother Indhumathy.A.N. Sri.Chandraiah.K being a government employee, illegally did the chit and financial transaction and to the same, he took the bank passbook and cheques of the accused by made use of the account of the accused and accordingly, the said Sri.Chandraiah.K got misused the said questioned cheque and through the complainant, though she not borrowed any loan from him filed the false case. Therefore, as per the say of accused, it made clear that, she is not admitted the money transaction alleged to be made mentioned in the present complaint held between complainant and accused, but she seriously attack on the same. Therefore, it made clear that, though statutory initial presumption has to be drawn in favour of complainant that, for the discharge of existence of legally recoverable debt, the accused got issued questioned cheque, it is subject to the rider unless and until contrary prove by the accused as per Sections 118 and 139 Judgment 17 C.C.No.16596/2015 of Negotiable Instruments Act. Therefore, the statutory presumption is not absolute, but it is subject to the rider and proof from the part of accused. In this case, the accused has not admitted the claim put forth by the complainant, but she specifically denied each and every allegation set out by the complainant.
24. Since, it is initial burden on the accused to prove her probable defence, apart from she caused reply at Ex.P6, she through out the case has denied the allegations as well as incriminating evidence made against her and she entered into witness box and choosen to filed affidavit evidence. Since, the complainant has not opposed the same, her affidavit evidence is taken on record and on oath she examined as DW.1. Wherein, she is specifically stated that, the complainant is utter stranger to her and as alleged in the complaint, she not borrowed the loan of Rs.5 lakhs from him and she not issued the questioned cheque for repayment of the said money. Specifically she is stated that, the hand writing on the cheque is not of her and the involved cheque at Ex.P1 were given by her to one Sri.Chandraiah.K, who was colleague to her mother by name Indhumathy, who is working in government department. The family of the accused had good nexus with Sri.Chandraiah.K and since the accused had some Judgment 18 C.C.No.16596/2015 financial relationship with him as he was running some chit transaction in the year 2013 and since, he is a government servant, he told the accused that, he cannot directly involved in chit transaction and he approached the accused to involve in the said chit transaction. As, she had not such knowledge about chit transaction earlier she was denied, thereafter, again he pressurized her to at least hand over her pass book of the account maintained in bank of Baroda at Vijayanagar Branch, Bengaluru and promised her that, he will only use her account for money receiving for withdrawal for chit transaction.
25. The accused also contended that, in that regard, she had apathetic mind to all this benami transaction and he convinced the accused that, he will never misuse her account and cheques belongs to her. Believing his words, accused handed over her account pass book, signed challan slips and signed cheques including the questioned cheque to said Sri.Chandraiah.K. The pass book account of the accused clearly reflect that, there were money transaction held between Sri.Chandraiah.K in her account during 2013-14, many times, he approached the accused to get her signature to pay slips and withdrawal challans. Later, when all chit business were windup, she approached him to return back her bank pass book and cheques, which were given by her to him, Judgment 19 C.C.No.16596/2015 but he got returned pass book only and told to her that, he got misplaced her cheques and soonafter trace out would return to her. She believed the words of Sri.Chandraiah.K and hope that would return.
26. The accused also contended that, since Sri.Chandraiah.K was her family friend many years and also work next desk colleague of her mother in a government department, she believed on him. She insisted Sri.Chandraiah.K to give back her cheques, but he kept those cheques with him on the word that, there will be no complications with respect to the said cheques and promised that, if any problems arise, he will solve the said problem. So, the questioned cheque was not given to the complainant, but it was given to Sri.Chandraiah.K. Later, she stated, the complainant is friend and relative of said Sri.Chandraiah.K, inspite of give bank her cheque at Ex.P1, he got misused the same by filled the same and filed the present case through the complainant herein. She not borrowed the alleged loan from the complainant. Hence, she is not liable to pay any money and she prayed for dismiss the present complaint and for her acquittal.
Judgment 20 C.C.No.16596/2015
27. From the said affidavit evidence of the accused, it made clear that, she attack on the claim of complainant as well as she made nexus of monetary transaction held between Sri.Chandraiah.K and accused, in that connection for operating the account of accused, he took questioned cheque along with other documents. The DW.1 was subjected for cross- examination. Wherein, she deposed that, she is qualified degree holder and working at SRS Private Company. She is also deposed that, mother working as Assistant in Health Department. From the said status of the accused, it made clear that, though she is clarified and working employee in private company, it is to be condemned of her part to hand over her bank pass book and signed blank cheques or any other documents to Sri.Chandraiah.K in doing illegal monetary transaction against his status of government employee. Therefore, the very act of the accused in taking such contention, she handed over her bank documents including questioned cheque, is to be condemned being an educated woman. She endorsed the illegal activities of Sri.Chandraiah.K in doing the monetary transaction and chit transaction as alleged by her at her risk and cost. However, whatever the said illegal transaction or monetary transaction did by Sri.Chandraiah.K by operating the account and cheques of Judgment 21 C.C.No.16596/2015 accused is not the subject matter of present case, it is the concerned department if found true would initiate necessary action against the said persons involved in the illegal transactions including accused. Therefore, the said activities of the accused let Sri.Chandraiah.K to operate her bank account and cheques are not a ground to disbelieve or came in the way of her probable defence.
28. The DW.1 in her cross-examination earlier, she was denied the suggestion that, in the year 2012 she did share marketing business, but in the later portion of suggestion, she clearly admitted that, while she was doing share business in the year 2012, she had financial crisis. However, she categorically denied that, during the month of December, 2012, she approached the complainant and sought for loan of Rs.5 lakhs and since she was close to the complainant on 15.12.2012, he remitted sum of Rs.5 lakhs by way of RTGS to the account of accused. Though, there was suggestion made from the side of complainant during the cross of DW.1, she categorically admitted that, account No.252911005474 is of her account. The very document relied by the complainant does not discloses that, sum of Rs.5 lakhs were remitted or deposited or credited to the account of accused as on 15.12.2012, in that regard, no document is been produced. The Judgment 22 C.C.No.16596/2015 Exs.P7 to P9 does not reveal that, the same made mentioned therein was credited to the account of accused. Therefore, in the absence of necessary document to show that, on the said date the said sum was remitted to the account of accused, the complainant has not produced any document.
29. The DW.1 in her cross-examination has stated that, she does not see the face of complainant and denied the borrowing of loan of Rs.5 lakhs for meet out her financial crisis held in the share market business and undertakes to repay the said money on or before November, 2014. As she not paid, when complainant came and asked her for repayment, she gave the questioned cheque is been denied by her. More particularly she deposed, she saw the complainant in the court itself. She denied the suggestion that, when herself got signed the Ex.P1 cheque and handed over to the complainant for payment of Rs.5 lakhs on 21.11.2014, she took false defence, as to hand over the same to Sri.Chandraiah.K and who filed the false case through the complainant. Any how, though DW.1 was subjected for cross- examination, she withstood her contention by way of denial of borrowing of alleged loan as well as issuance of questioned cheque to the complainant. No doubt, the accused not produced any document, though she contended, she did transaction with Judgment 23 C.C.No.16596/2015 Sri.Chandraiah.K, she not choosen to produce her bank statement. However, she admitted that, she gave her pass book, cheques and other documents of her bank account to Sri.Chandraiah.K to operate. By admitting so, the accused herself clearly admitted that, she let Sri.Chandraiah.K to operate her bank account and did monetary transaction in her name, it is her risk and cost, so she is liable in the event of any authorities initiate proceedings against her.
30. That apart, the accused has specifically contended that, the complainant is a friend and relative of Sri.Chandraiah.K, though Sri.Chandraiah.K got returned bank pass book, other documents and questioned cheque not returned, but through the complainant though she is unknown to him, projected the present case falsely. Thereby, she made nexus with her questioned cheque in the custody of Sri.Chandraiah.K and for making illegal gain; he lodged present case through the complainant herein. No doubt, the accused attack on the very approach of complainant as well as Sri.Chandraiah.K. When she made serious allegation against Sri.Chandraiah.K, she expected to examine Sri.Chandraiah.K in support of her probable defence does not arise, since made allegations nobody come to the court and depose true facts. Therefore, non-examining the Sri.Chandraiah.K by the accused is Judgment 24 C.C.No.16596/2015 not a hindrance. However, the accused has liberty to take probable defence to disprove the case of complainant and rebut to the statutory presumption. Apart from, she withstood her contention in her evidence, she choosen to prove that, Sri.Chandraiah.K is known person, she choosen to suggest to the PW.1 during his cross-examination. Wherein, the PW.1 has deposed that:
"¨ËjAUï D¸ÀàvÉæAiÀÄ°è PÉ®¸À ªÀiÁqÀĪÀ ZÀAzÀæAiÀÄå £À£ÀUÉ UÉÆwÛ®è. ¤¦-1 gÀ ºÀ¸ÁÛPÀëgÀ ZÀAzÀæAiÀÄå §gÉ¢zÁÝgÉAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. DgÉÆæAiÀÄ£Éßà PÉüÀ¨ÉÃPÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¦AiÀiÁðzÀ£ÀÄß N¢ ¸À» ªÀiÁrzÉÝãÉAzÀgÉ ¸Àj. £À£ÀUÉ DgÉÆæ AiÀiÁgÉAzÀÄ UÉÆwÛ®è, D PÁgÀtPÉÌ £À£Àß zÀÆj£À°è CªÀ¼À §zÀ°UÉ CªÀ£ÀÄ JA§ ¥ÀzÀªÀ£ÀÄß §¼À¹zÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. ZÀAzÀæAiÀÄå D¸ÀàvÉæAiÀÄ°è PÉ®¸À ªÀiÁqÀĪÀÅzÀÆ C®èzÉà ¨ÉÃgÉ ¨ÉÃgÉ jÃwAiÀÄ aÃn ªÀåªÀºÁgÀªÀ£ÀÄß ªÀiÁqÀÄwÛzÁÝgÉAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. ¸ÁQëAiÀÄÄ DvÀ£Éà £À£ÀUÉ UÉÆwÛ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. DgÉÆæAiÀÄ vÁ¬Ä PÀÆqÀ DgÉÆÃUÀå E¯ÁSÉAiÀÄ°è dƤAiÀÄgï ºÉ¯ïì C¹¸ÉÖAmï DV PÉ®¸À ªÀiÁqÀÄwÛzÁÝgÉ JAzÀgÉ ¸Àj. ZÀAzÀæAiÀÄå D¸ÀàvÉæAiÀÄ°è PÉ®¸À ªÀiÁqÀĪÀ ¹§âA¢UÀ½UÉ ¸Á® ¤ÃqÀĪÀ C¨sÁå¸ÀªÀ£ÀÄß ElÄÖPÉÆArzÁÝgÉAzÀgÉ, DvÀ£Éà £À£ÀUÉ UÉÆwÛ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
31. By deposing so, the PW.1 has specifically deposed that, he does not know Sri.Chandraiah.K, who worked in Bowring Hospital.
Judgment 25 C.C.No.16596/2015 The suggestions were made from the accused that, whatever the hand writing made at Ex.P1 cheque was belongs to Sri.Chandraiah.K only. But PW.1 has deposed, he does not know. The complainant cannot skip, he need to explain due execution and issuance of cheque. The PW.1 has not denied the suggestion that, whatever the hand writing found at Ex.P1 in filling portion, except the signature of the accused is not of Sri.Chandraiah.K. Thereby, indirectly admitted the suggestion of the accused that, it was filled by hand writing of Sri.Chandraiah.K. To rebut the said factum, the complainant needs to call him, but for the reasons better known to him not called to witness to the same. The PW.1 has deposed that, on reading the complaint, he put his signature. It was suggestion made to him that, since, he does not know the accused, therefore, inspite of mentioned the gender of the accused, as 'she' or 'her', it was made mentioned as 'he' or 'his' in the complaint. But he denied the same, against the pleading made mentioned in the complaint. In mentioning 'his' or 'him' in the complaint as against 'her' or 'she', there is no acceptable explanation put forth from the side of complainant. The proper pleading is very much necessary in identifying the gender of the accused as in the Ex.P6 reply notice itself, at the inception she took defence that, the complainant is unconcerned Judgment 26 C.C.No.16596/2015 person and stranger and with whom, she had no business or transaction whatever the nature. Therefore, the wrong pleading of the gender against the true status of the accused is also one of the ground to suspect the very approach of complainant as well as genuineness of the transaction.
32. The PW.1 in the above piece of cross-examination has deposed, by stating that, he does not know, the said Sri.Chandraiah.K, apart from working in hospital, he did different kinds of chit business, but he volunteers that, he does not know Sri.Chandraiah.K. The PW.1 categorically admitted that, the mother of the accused was working in Junior Health Assistant in Health Department. The PW.1 has deposed that, he does not know that, the said Sri.Chandraiah.K in his hospital used to lent loans to the employees in the hospital. But he said, he does not know. From the said evidence of PW.1, it can gather that, though accused has attack on the contention of the complainant, as on the tune of Sri.Chandraiah.K, he filed false case by misusing questioned cheque, he being a friend and relative of Sri.Chandraiah.K. But the PW.1 specifically deposed, he does not know Sri.Chandraiah.K. Judgment 27 C.C.No.16596/2015
33. On the first day of cross-examination, the PW.1 has deposed, he does not know Sri.Chandraiah.K. Therefore, it was inevitable to the accused as to establish that, there was nexus between Sri.Chandraiah.K and complainant and they colluded each other brought the present case. Therefore, in the subsequent day cross-examination the photograph, wherein discloses, the physical appearance of complainant and Sri.Chandraiah.K seen were tendered. In that regard, the PW.1 has deposed that:
"¸ÁQëUÉ MAzÀÄ ¥sÉÆmÉÆêÀ£ÀÄß vÉÆÃj¹ CzÀgÀ°è vÁ£ÀÄ ªÀÄvÀÄÛ ZÀAzÀæAiÀÄå JA§ ªÀåQÛUÀ¼ÀÄ EzÁÝgÉ JAzÀÄ vÉÆÃj¹ PÉüÀ¯ÁV, ¸ÁQëAiÀÄÄ CzÀgÀ°è vÁ£ÀÄ EgÀĪÀÅzÀ£ÀÄß M¦àPÉÆAqÀ ªÉÄÃgÉUÉ ¤r.1 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¸ÁQëAiÀÄÄ ¤r.1 ¥sÉÆmÉÆêÀ£ÀÄß £ÉÆÃr CzÀgÀ°è EgÀĪÀ ªÀåQÛ AiÀiÁgÉAzÀÄ UÉÆwÛ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¸ÀzÀj ¥sÉÆÃmÉÆÃzÀ°è PÀAqÀÄ §gÀĪÀ ZÀAzÀæAiÀÄå ªÀÄvÀÄÛ DgÉÆæAiÀÄ vÁ¬Ä J.J£ï. EAzÀĪÀÄw DgÉÆÃUÀå E¯ÁSÉAiÀÄ°è MnÖUÉ PÉ®¸À ªÀiÁqÀÄvÁÛgÉAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. ¸ÀzÀj ZÀAzÀæAiÀÄå £À£Àß ºÀwÛgÀzÀ ¸ÀA§A¢ü JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀzÀj ZÀAzÀæAiÀÄå£À ªÀÄÄSÁAvÀgÀªÉà DgÉÆæAiÀÄ vÁ¬Ä £À£ÀUÉ ¥ÀjZÀAiÀĪÁVzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀzÀj ZÀAzÀæAiÀÄå DgÉÆÃUÀå E¯ÁSÉAiÀÄ°ègÀĪÀ £ËPÀgÀjUÉ §rØUÁV ¸Á® PÉÆqÀÄwÛzÀÝgÀÄ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. ¸ÀzÀj ZÀAzÀæAiÀÄå Judgment 28 C.C.No.16596/2015 ¸ÀPÁðj £ËPÀgÀ£ÁzÀ PÁgÀt, £À£Àß ªÀÄÄSÁAvÀgÀªÉà §rØAiÀÄ ªÀåªÀºÁgÀªÀ£ÀÄß ªÀiÁqÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è."
34. On going through the said testimony of PW.1, when there is tendering of photograph, wherein discloses, the complainant and Sri.Chandraiah.K were sat on wooden cot in a room and the complainant had look at Sri.Chandraiah.K. But, the PW.1 has cleverly deposed that, in the said photograph his photo appears and identified his presence, therefore, the said photograph got marked at Ex.D1. On meticulous perusal of the said testimony, it reveals that, the PW.1 was very much silent about the identification of Sri.Chandraiah.K, who sat on the same cot along with complainant, but only identified his presence. That apart, the PW.1 on seeing another person sat on the same cot towards another end, he on seeing the same again deposed that, the person who sat on the cot, he does not know. It was suggestion made to him that, the another person found in Ex.D1 is none other than Sri.Chandraiah.K, who was working in Health Department with the mother of accused, but PW.1 repeatedly said, he does not know. It was suggested to PW.1 that, the very person was nearest relative of complainant and through Sri.Chandraiah.K only the mother of accused was introduced to the complainant, was denied by the PW.1. There was serious allegation made against Judgment 29 C.C.No.16596/2015 PW.1 that, Sri.Chandraiah.K used to gave loan to Health Department Employees, since he was government employee, he used to lent loan through the complainant on interest been denied by PW.1.
35. On appraisal of above piece of evidence, it made clear that, when complainant and Sri.Chandraiah.K were sat together on one cot and Sri.Chandraiah.K had eat something from the plate, the complainant is very much present on another corner of the cot and saw at him. More particularly, the said photograph reveals that, it was taken in a room except none were present. If at all, the common photograph of any public assembling is tendered, the approach of PW.1 could have been accepted. Contrary to the same, though complainant and Sri.Chandraiah.K were sat on single cot and he saw towards him, while they are two only in the room, he does not know Sri.Chandraiah.K, it discloses that, the complainant for the reasons better known to him, though he knew Sri.Chandraiah.K and had close nexus with him in order to avoid the risk of defence set out by the accused, though the clear picture of both are sit together was brought before the court at Ex.D1, he denied the same. The very denial of presence of Sri.Chandraiah.K in the photograph at Ex.D1, wherein, complainant was sat together with him, it clearly manifest that, the Judgment 30 C.C.No.16596/2015 complainant has not approached this court with clean hands. Therefore, the very act of the complainant has to be condemned for the reasons best known to him.
36. The very denial of presence of Sri.Chandraiah.K in a photograph at Ex.D1, it draw the inference that, there were close proximity between complainant and Sri.Chandraiah.K. That was nothing but, as suggested by the accused, the said Sri.Chandraiah.K had did monetary transaction through the complainant herein, therefore, they were close to each other and though, he denied that, he does not know Sri.Chandraiah.K. At least the complainant could have summon Sri.Chandraiah.K before this court to examine, as the accused has clearly established that, Sri.Chandraiah.K and complainant were close proximity and did monetary transaction against the financial capacity of Sri.Chandraiah.K through the complainant. Therefore, it was reverse burden on the complainant to establish that, he does not know or had no financial transaction with him. By way of production of Ex.D1, the accused has successfully proved that, in respect of transaction held between Sri.Chandraiah.K and accused, the questioned cheque was handed over in blank by her to him with signature, despite, she terminated the transaction and took back all other documents, the questioned cheque and other Judgment 31 C.C.No.16596/2015 cheques were retained by Sri.Chandraiah.K and he got himself filled the questioned cheque through the complainant herein had filed the false case has to be accepted. Therefore, from the above probable defence, the accused has successfully proved her probable defence and rebutted the statutory presumption as well as facts and circumstances set out by the complainant. Therefore, it is the reverse burden on the complainant to prove the very alleged loan transaction.
It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".
In 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 - Something probable has to be Judgment 32 C.C.No.16596/2015 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".
In the 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".
37. 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. It is the proper to see object of introduction of Negotiable Instruments Act, 1881.
In a decision reported in 1996 Cr.L.J. 638 (Andhra Pradesh) (D.B) in a case between B.Mohan Krishna V/s. Union of India.
Wherein, it was pleased to observed that, Judgment 33 C.C.No.16596/2015 "Section 138 was enacted in public interest; its objective is to "enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in certain cases while at the same time providing 'adequate safeguards' to prevent harassment of honest drawers". As the evil practice of issuing cheques in settlement of liabilities without there being adequate amount in the accounts became rempant, the Union Parliament thought it fit to curb the same effectively by enacting a stringent law while at the same time taking care to safeguard the interest of honest drawers". That apart, in another decision reported in AIR 2000 SC 954:(2000) 2 SCC 745:2000 SCC (Cr) 546:2000 Cr.L.J 1464 in a case between Kusum Ingots & Alloys Ltd., V/s. Pennar Peterson Securities Ltd. Wherein, it was pleased to observed that:
"The object of bringing the Section 138 on statute is to inculcate faith in the efficacy of banking operations and credibility in transacting business on Negotiable Instruments".
"The purpose behind incorporation of Section 138 of Negotiable Instruments Act is to lend credibility for cheque transaction. Though as per Section 138 of Negotiable Instruments Act, there is no burden on the part of complainant to prove the entire details of the transaction."
Judgment 34 C.C.No.16596/2015
38. But as discussed earlier, in view of accused has placed her specific defence and rebutted the statutory presumption as well as under which circumstances, the questioned cheque came to in possession of Chandraiah.K and how he misused the same through the complainant, it is by virtue of Sections 118 and 139 of Negotiable Instruments Act, the reverse burden on the complainant to prove his case beyond the reasonable doubt, as observed in the dictums cited supra.
39. As discussed earlier, the reverse burden is created by the complainant, therefore, it is the complainant has to establish his case beyond the reasonable doubt and prove the guilt of accused. On meticulous perusal of the complaint particulars, the complainant merely pleaded that, accused is her friend and to meet her business commitment, she asked for hand loan of Rs.5 lakhs and assured to repay the same during November, 2014 with interest at 12% p.a. accordingly, he gave sum of Rs.5 lakhs. On close reading of the said paragraph No.1 of the complaint, though he pleaded as such, it does not disclose, what is the occupation of complainant and accused, how he mobilized the huge fund of Rs.5 lakhs, the accused being married woman, why she was in need of huge amount of Rs.5 lakhs and what kind of business commitment she had, is not been explained. Moreover, on which Judgment 35 C.C.No.16596/2015 date, the accused were asked the complainant seeking for loan and how he mobilized the fund and handed over to the accused, which date, money and year, nothing has been reflected. Even nothing has disclosed, on which security the complainant had alleged to be paid the said loan to the accused. If at all, necessary particulars were furnished in the legal notice at Ex.P5 or the complaint as well as affidavit evidence of the complainant definitely, it would be an opportunity to the accused to take specific stand against the claim made by the complainant. It is necessary to cite the following decisions:
In a decision reported in 2001 Cr.L.J.52 (Andhra Pradesh) in a case between K.Janaki Manoharan V/s. Gayatri Sugar Complex Ltd. Wherein, it was pleased to observed that:
"No person could be prosecuted in the absence of a specific, clear and unambiguous assertion in the complaint against such persons impleaded as accused that they were incharge of and were responsible to the company for the conduct of the business at the material time when the offence was committed by the company. The complainant is bound to share that information in the complaint. The contents of the complaint are required to be meticulously scrutinized by the Magistrate before taking the same on file. Further proceedings in a complaint where there is no such averment and clear allegation would be an abuse of judicial process. The Judgment 36 C.C.No.16596/2015 requirement of specific, clear and unambiguous allegation in the complaint before the same is taken on file by a Magistrate cannot be relaxed. No person could be allowed to prosecuted on imaginary grounds".
40. On going through the said dictum, it was opined that, no person could be prosecuted in the specific clear and unambiguous assertion in the complaint against such persons impleaded as accused that, they were incharge of and were responsible to the company for conduct of business at the material time when the offence was committed by the company. It was also observed that, the complainant is bound to share that information in the complaint. No person could be allowed to be prosecuted on imaginary grounds.
41. By virtue of the said dictum, at least to make known the accused, what was the case made against her, the complainant is require to furnish better particulars or information, but he complainant lacks the same. No doubt, in view of various decisions, though it was pleased to observe that, all those particulars are not necessary to made mentioned in the complaint, but in the best interest of justice to make known the accused, to take defence, what was the alleged transaction held, it requires to Judgment 37 C.C.No.16596/2015 furnish necessary information in the complaint, but the same is lack.
42. As observed above, there is no information in the legal notice at Ex.P5, complaint as well as in the affidavit evidence of the complainant, as to when the accused made request for hand loan and how he mobilized the same and on which date, on which security, he came forward to pay the said huge alleged amount on interest at 12% p.a. is not been pleaded. However, the accused has attack on the very claim of complainant; therefore, she made cross-examination to PW.1 through her counsel. Wherein, the complainant has deposed that:
"DgÉÆæAiÀÄ vÁ¬Ä £À£Àß ªÀÄ£ÉUÉ §gÀÄwÛzÀÄÝzÀÝjAzÀ DgÉÆæ £À£ÀUÉ ¥ÀjZÀAiÀÄ EzÁÝgÉ. DgÉÆæAiÀÄ vÁ¬Ä EAzÀĪÀÄw £À£Àß ¸ÉßûvÀgÁVzÀÝgÀÄ. DPÉAiÀÄ UÀAqÀ£À ºÉ¸ÀgÀÄ UÉÆwÛ®è."
43. Now the accused has deposed that, since the mother of the accused came to the house of complainant, accused knew to him. He not stated that, accused used to come to his house along with her mother. Though, in the complaint, the complainant had pleaded the accused is his friend and knew each other since last several years. But in the said cross-examination has stated that, her mother Indumathy was friend of him and hence, the accused Judgment 38 C.C.No.16596/2015 known to him. If at all, the accused was friend of him, definitely, he could have been stated. But in the cross-examination, against his pleading, he deposed that, the accused knew to him and not stated about the friendship of complainant and accused, as he contended. Thereby, he failed to prove that, accused is his friend since several years.
44. That apart, the PW.1 has deposed, the mother of accused was his friend. Then definitely, he must know name of the father and husband of accused. In that regard, no explanation is forth coming from the side of PW.1, thereby, he failed to demonstrate that, either the accused or her mother was his friends. The accused has contended that, Chandraiah.K and her mother were next desk colleagues in the office. Therefore, it is require to prove the complainant that, friendship with the accused or with his mother, but nothing has been done as such. The friendship which made the complainant came forward to pay huge amount of loan, therefore, it is him to establish the same, but the same is lack from his part. Thereby, he utterly failed to prove that, either the accused or her mother were his friends. Hence, without any security, the complainant came forward to pay the huge amount of Rs.5 lakhs, as he pleaded creates doubt in the mind of court.
Judgment 39 C.C.No.16596/2015
45. That apart, as discussed earlier, the complainant has not pleaded anything about the request made by accused nor exactly, when and where he paid money to the accused. But there is some development in the cross-examination of PW.1. Wherein, he deposed that:
"DgÀÉÆæ, ¢£ÁAPÀ 15.12.2012 gÀAzÀÄ DgïnfJ¸ï ªÀÄÄSÁAvÀgÀ gÀÆ.5 ®PÀë ¤ÃqÀĪÁUÀ DPÉ ªÀĤ mÁæå£ïì¥Àsgï/µÉÃgÀÄ ªÀåªÀºÁgÀªÀ£ÀÄß ªÀiÁqÀÄwÛzÀÝgÀÄ. AiÀiÁªÀ ¸ÀA¸ÉÜAiÀÄ°è D ªÀåªÀºÁgÀ ªÀiÁqÀÄwÛzÀÝgÀÄ JAzÀÄ UÉÆwÛ®è. ¸ÁQëAiÀÄÄ ªÀÄÄAzÀĪÀgÉzÀÄ DgÉÆæ µÉÃgÀÄ ªÀåªÀºÁgÀzÀ°è £ÀµÀÖªÁVzÉ, D PÁgÀtPÉÌ £À¤ßAzÀ gÀÆ.5 ®PÀë ¸Á®ªÀ£ÀÄß PÉýzÀÝgÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. DgÉÆæ AiÀiÁªÀÅzÉà jÃwAiÀÄ µÉÃgÀÄ ªÀåªÀºÁgÀUÀ¼À£ÀÄß ªÀiÁqÀÄwÛgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëAiÀÄÄ D jÃwAiÀiÁV £À£ÀUÉ ºÉýzÀÝgÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. DgÉÆæUÉ D ªÀåªÀºÁgÀ ªÀiÁqÀzÀ PÁgÀt, AiÀiÁªÀÅzÉà jÃwAiÀÄ £ÀµÀÖ GAmÁVgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è."
46. On appraisal of the said evidence of PW.1, he try to brought few new things, as to give clarification as to when he paid money to the accused, under what circumstances. The said evidence of PW.1 discloses, against his pleading he stated, on 15.12.2012 itself by way of RTGS he paid Rs.5 lakhs to the accused, by that time, she was doing money transfer/share business. He deposed that, he does not know, in which concern she was did the said Judgment 40 C.C.No.16596/2015 business. But he volunteers that, by informed him that, she was sustained financial lost in the share business, she asked for loan. The accused side has strongly denied that, accused was not did any such of share marketing business, as alleged by the complainant. The PW.1 has deposed that, by denying the said suggestion, he stated that, she told as such to him. But, the suggestion were made to him by the accused side that, the accused was not did such kind of share marketing business, therefore, she was not did any such business. The said evidence of PW.1, it discloses that, the complainant himself not seen, the accused did the share marketing business, but he projected that, she told the said factum to him. Under such circumstances, what inspite him to pay the huge amount of loan as on 15.12.2012 is not explained. If exactly, the complainant paid the loan of Rs.5 lakhs on 15.12.2012 as deposed in his cross-examination definitely, he must known the said factum while prepare legal notice or at least in his pleading or affidavit evidence, but the same is lack. The PW.1 has produced the Exs.P8 and P9, which are none other than the credit slip and transfer debit challans. In his cross-examination in that regard, he deposed that:
"r¸ÉA§gï 2018 gÀAzÀÄ £Á£ÀÄ CfðAiÀÄ£ÀÄß ¸À°è¹ CªÀÅUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆArzÉÝãÉ. F ¥ÀæPÀgÀt zÁR°¸ÀĪÁUÀ ¤¦-8 ªÀÄvÀÄÛ ¤¦-9 gÀ Judgment 41 C.C.No.16596/2015 zÁR¯ÉUÀ¼ÀÄ £À£Àß §½ EgÀ°®è JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ ¸ÀévÀB ªÀÄÄAzÀĪÀgÉzÀÄ CªÀÅUÀ¼ÀÄ ¨ÁåAQ£À°è EzÀݪÀÅ, £Á£ÀÄ CªÀÅUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆArgÀ°®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¨ÁåAQUÉ Cfð ¤ÃrzÀ §UÉÎ zÁR¯É F ¥ÀæPÀgÀtzÀ°è ºÁdgÀÄ ¥Àr¹®è. ¤¦-8 ªÀÄvÀÄÛ ¤¦-9 £ÀÄß F ¥ÀæPÀgÀtPÁÌV ¥ÀæPÀgÀt zÁR°¹zÀ §½PÀ ¸ÀȶֹPÀÉÆArzÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀzÀj zÁR¯ÉUÀ¼À §UÉÎ £À£Àß zÀÆj£À°è G¯ÉèÃR E®è JAzÀgÉ ¸ÁQëAiÀÄÄ CªÀÅUÀ¼À §UÉÎ £À£Àß ªÀQîjUÉ w½¹zÉÝ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
47. On going through the said testimony of PW.1, he deposed that, in the year 2018 by apply he got obtained the Exs.P8 and P9. More particularly he deposed, as on the date of lodged private complaint, the Exs.P8 and P9 were not with him. But he volunteers that, those documents were in the bank and not collected the same. The accused side has suggested that, by creating Exs.P8 and P9, subsequently produced the said documents, but the PW.1 has denied the same. The PW.1 specifically stated that, in respect of Exs.P8 and P9, he was informed to his advocate. If at all, he knew about Exs.P8 and P9 at least, he must know exactly on which date by way of RTGS, he made payment to the accused or her account definitely, his bank statement is primary document and he could have been stated in the pleading. If at all, he informed about the Exs.P8 and P9 to his advocate, definitely, there could be some pleading, as to alleged Judgment 42 C.C.No.16596/2015 lent of loan to the accused, but the same are lacks. Therefore, it made clear that, if at all, in the Exs.P8 and P9, the complainant paid money to the accused for Rs.5 lakhs as on 15.12.2012, definitely, he could have been pleaded, but for the reasons better known to him not pleaded as such. Though, he produced his bank statement at Ex.P7, it does not discloses that, he made RTGS payment to the account of accused. There is no particulars in the bank statement. At least to show that, the said money was remitted or transferred to the account of the accused, the complainant could have secure the bank statement of the accused and produce before this court, but for the reasons better known to him, he not placed.
48. In the pleading, the complainant has contended that, he lent loan to the accused on interest at 12% p.a. and she undertakes to repay the same in the month of November, 2014. If at all, as deposed by the PW.1, he lent loan to the accused on 15.12.2012, it was in his contention that, for the period of 2 years he lent loan. If at all, any person lent such huge amount, shall obtain necessary security documents to acknowledge the debt, but no such document is been secured by the complainant. Under such circumstances, on which confidence, he lent the loan, on which expectation he is expected for recover the same is also created Judgment 43 C.C.No.16596/2015 doubt. The complainant has contended that, an interest at 12% p.a. he lent the loan of Rs.5 lakhs. To doing said money lending business, the complainant has not secured any licence, but against provisions claiming did the money lending business, the very act of the complainant has to be deprecated.
49. In this case, the accused has specifically taken the contention that, she gave her bank pass book, cheques to Chandraiah.K for the purpose of his money lending or chit transaction business used. In that line, the PW.1 was subjected for cross-examination, wherein, the payment made from the account of the accused to the account of complainant was suggested. The relevant portion runs thus:
"DgÉÆæAiÀÄ SÁvɬÄAzÀ £À£Àß SÁvÉUÉ gÀÆ.2,93,000/- ««zÀs ¢£ÁAPÀUÀ¼ÀAzÀÄ J£ïEJ¥sïn, DgïnfJ¸ï, EvÀgÉ ªÀUÁðªÀuÉ ªÀÄÄSÁAvÀgÀ 2013 gÀ°è £À£ÀUÉ ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁrzÁÝgÉAzÀgÉ ¸ÁQëAiÀÄÄ PÉêÀ® gÀÆ.2 ®PÀë ªÀiÁvÀæ ªÀiÁrzÁÝgÉAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¸ÁQëAiÀÄÄ ªÀÄÄAzÀĪÀgÉzÀÄ ¤RgÀªÁV JµÀÄÖ ¥ÁªÀw ªÀiÁrzÁÝgÉAzÀÄ UÉÆwÛ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. C®èzÉà ¸ÁQëAiÀÄÄ £Á£ÀÄ DgÉÆæUÉ ¸ÀĪÀiÁgÀÄ gÀÆ.1,50,000/- ¬ÄAzÀ gÀÆ.2 ®PÀëzÀªÀgÉUÀÆ £ÀUÀzÁV 2011 gÀ°è ¥ÀqÉ¢zÀÄÝ, CzÀ£ÀÄß D jÃw ¥ÁªÀw ªÀiÁrzÁÝgÉAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. D ºÀt £À£ÀUÉ DgÉÆæ ¥ÁªÀw ªÀiÁrzÀ PÁgÀt D §UÉÎ £ÉÆÃn¸ï ªÀÄvÀÄÛ zÀÆj£À°è ¥Àæ¸ÁÛ¦¹®è."
Judgment 44 C.C.No.16596/2015
50. On going through the said testimony of PW.1, it was the suggestion made from the side of accused that, from the account of accused on various dates in the year 2013 by way of NEFT/RTGS and other source had transferred sum of Rs.2,93,000/-, but without denying the said contention, the PW.1 has deposed that, he received Rs.2 lakhs and volunteers that, he does not know, exactly what amount he received. Thereby, it made clear that, the PW.1 categorically admitted the receipt of Rs.2,93,000/- from the account of the accused. The accused has defended that, she unknown to the complainant and Chandraiah.K got used her account and cheques etc., for his transaction, complainant and Chandraiah.K colluded each other filed the false case. Therefore, the said payment of Rs.2,93,000/- from the account of accused pass on to the complainant could have been gathered. However, the receipt of Rs.2,93,000/- by the complainant from the account of accused has been proved by the accused. The said amount either it may be paid by the accused or said Chandraiah.K could have been used her account for the transaction. But the said admission as well as relevant undisputed entries suggested to PW.1 made clear that, sum of Rs.2,93,000/- were paid by the accused account to the complainant in the year 2013 itself.
Judgment 45 C.C.No.16596/2015
51. The accused further volunteers that, that apart, he lent sum of Rs.1,50,000/- to Rs.2 lakhs in cash to the accused in the year 2011, it were repaid by the accused as such. In respect of the receipt of the said money of Rs.2,93,000/- has not been mentioned in his legal notice and complaint. From the meaningful reading of the above said testimony of PW.1, has to draw the two inference. On one fold, the complainant has clearly admitted that, sum of Rs.2,93,000/- got received from the accused in the year 2013 itself. If at all, the said amount got received its subsequent to the payment of alleged loan made mentioned in the complaint on 15.12.2012. Therefore, it made clear that, after obtaining loan on 15.12.2012, the accused from her account got paid Rs.2,93,000/- in the year 2013. The present case was filed in the year 2015, but the complainant for the reasons better known to him not disclosed the receipt of Rs.2,93,000/- for the reasons better known to him, it clearly manifest the bonafidness of him.
52. On the another fold, though PW.1 has admitted the receipt of Rs.2,93,000/- in the year 2013, he try to clarify and connected to the another transaction alleged to be held in the year 2011 accused borrowed loan up to Rs.2 lakhs. From which also it creates doubt that, if at all, accused obtained loan in the year Judgment 46 C.C.No.16596/2015 2011 for the tune of Rs.2 lakhs definitely, in the year 2013, it was not repaid. Therefore, the said amount if taken into consideration paid Rs.2,93,000/- definitely, the present loan transaction happening on 15.12.2012 itself created doubt. As per say of PW.1, if at all, he lent loan in the year 2011 itself for the tune of Rs.2 lakhs, if it came to be unpaid by the accused, it is him he explain, on which security he again lent on loan unless cleared earlier loan. Once again he came forward to pay the huge amount of Rs.5 lakhs on 15.12.2012 as alleged in the complaint itself created doubt. Common prudent person, unless cleared the earlier huge loan, that too, years together once again came forward to lend the huge amount of Rs.5 lakhs is highly improbable.
53. Though, complainant projected in the year 2011, he lent loan of Rs.2 lakhs to the accused and it was repaid by her in the year 2013 for the tune of Rs.2,93,000/-, no satisfactory explanation is forth coming from him. From which, it made clear that, if at all, earlier loan transaction were there in between them in the year 2011, once again on 15.12.2012 if lent loan to the accused definitely, highly impossible and make believe that, as he pleaded or explained in his cross-examination lent the loan to accused on 15.12.2012, the complainant has not provide any Judgment 47 C.C.No.16596/2015 satisfactory explanation. If at all, he exactly paid loan on 15.12.2012 as found in Exs.P7 to P9 definitely, he could have been pleaded and deposed, but the same is lacks.
54. If at all, as per Ex.P7 taken in to consideration that, he alleged to be paid Rs.5 lakhs to the accused on 15.12.2012, sum of Rs.2,93,000/- has admitted by the PW.1 were repaid in the year 2013 itself from the account of the accused. Therefore, it made clear that, in case the present loan was lent by the complainant to the accused, much prior she repaid the maximum portion of loan amount of Rs.2,93,000/-, but the same has not disclosed by the complainant. If at all, the complainant claimed his benefit and definitely, by deducting the said sum for the remaining amount, he could have placed his claim, but he did not do so and despite, receipt of Rs.2,93,000/- once again for the reasons better known to him, because of he possessed questioned cheque through the various source he presented the cheque by mentioning the cheque amount as Rs.5 lakhs. Therefore, the very contents of Negotiable Instrument at Ex.P1 itself creates doubt as to due execution of its issuance to the complainant.
55. As pleaded by the complainant, if accused not repay the loan as agreed before November, 2014, definitely, he could have Judgment 48 C.C.No.16596/2015 secure necessary loan documents by renewal of acknowledgment is of debt. But no such document is secured. If at all, he lent the said loan for the period of 2 years without expecting any interest or profit, how the complainant had tolerated over the period of 2 years, as he lent the loan on interest is also created doubt. Whether, he was collected interest as he pleaded for the period of 2 years or not is not been explained. If at all, he lent loan for interest definitely, he must recover some interest from the accused during those period, but for the reasons better known to him, he silent about it.
56. That apart, In the pleading the complainant has contended ithat, after his remind, she gave cheque dated:21.11.2014 and requested him to present it during the month of February, 2015. If at all, she undertakes to pay the money during February, 2015, no need to mention the date:21.11.2014 in the cheque. The complainant though possessed the cheque and made the date:21.11.2014, he squat by hold the same over the period of 3 months and after came to know that, the validity of the cheque came to an end, before the lapse of last day, the complainant got presented the said cheque for encashment. If at all, the accused came and approach him to present it during the month of February, 2015, definitely, no needs to issue the cheque by Judgment 49 C.C.No.16596/2015 mention the date 21.11.2014. The complainant could have necessity her to mention the said date and obtain the fresh cheque which covers in time. But the presentation of cheque at the fag end of the validity also reveal that, for the reasons better known to complainant, he kept quiet all these days by receiving the huge amount of Rs.2,93,000/- from the account of accused, then for the reasons better known to him, he brought the present case. Therefore, the very act of the complainant appears to be not approached with clean hands. Though, complainant has pleaded the cheque was issued by accused during 3rd week of November, 2014, but in his cross-examination he deposed that:
"¤¦-1 gÀ ZÉPÀÌ£ÀÄß DgÉÆæAiÉÄà ¨Àswð ªÀiÁrPÉÆAqÀÄ §AzÀÄ £À£ÀUÉ PÉÆnÖzÀÝgÀÄ. CzÀ£ÀÄß AiÀiÁgÀÄ §gÉ¢zÁÝgÉAzÀÄ DPÉUÉ PÉüÀ¨ÉÃPÀÄ £À£ÀUÉ UÉÆwÛ®è. ¤¦-1J ¸À»UÀÆ G½zÀ §gÀºÀPÀÆÌ EAPÀÄ ªÀÄvÀÄÛ ºÀ¸ÁÛPÀëgÀ ªÀåvÁå¸À¢AzÀ PÀÆrzÉ JAzÀgÉ CzÀ£ÀÄß ¸ÀºÀ DPÉUÉ PÉüÀ¨ÉÃPÀÄ £À£ÀUÉ UÉÆwÛ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
57. On going through the said deposition of PW.1, he deposed that, questioned cheque was filled by the accused and handed over to him. He adamantly deposed that, who filled the said cheque has to be asked to the accused and he does not know about the same. Even the PW.1 has deposed, he does not know Judgment 50 C.C.No.16596/2015 that, in respect of signature at Ex.P1(a) and other writings made in the cheque are in different hand writing.
58. If at all, the accused herself came to the complainant and for discharge of existence of legally recoverable debt, if any, she being a degree graduate definitely, there was no impediment to her got filled the cheque by mentioning name of complainant and with other particulars. The signature at Ex.P1(a) and other writings are him in different hand writing and ink. There were suggestions from the side of accused that, K.Chandraiah himself got filled the cheque and filed the present false case through the complainant. Therefore, it is the complainant requires to examine the said K.Chandraiah as found in Ex.D1 in order to substantiate his contention, but he did not do so. From the perusal of questioned cheque, on bare eyes it clearly discloses the signature of accused is different from other fillings, therefore, it prima-facie draw the inference that, the accused not executed and issued the questioned cheque to the complainant.
59. It is pertinent to note that, the PW.1 has admitted, in the year 2013 he got received Rs.2,93,000/- from the account of accused, but the said amount is not deducted in the Ex.P1 cheque. Therefore, from the conduct and approach of Judgment 51 C.C.No.16596/2015 complainant only one can inference draw that, for the reasons better known to him, he possessed the cheque at Ex.P1, pertaining to the unexplained source, but projected the present case by claiming, he lent loan of Rs.5 lakhs and for its repayment the accused got issued the same and same came to be dishonoured despite, gave legal notice not pay the money. On the other hand, as defended by the accused, she has successfully established that, she is not borrowed loan from complainant of Rs.5 lakhs as alleged in the complaint and not issued the questioned cheque for its repayment. Mere because of the complainant possessed the questioned cheque of the accused through unexplained source and got filled for his convenience and made mentioned the huge amount of Rs.5 lakhs and filed the case against the working woman itself creates doubt, as to without knowing the family of the accused, the complainant lent the said loan is highly improbable.
60. The complainant has utterly failed to prove that, he paid Rs.5 lakhs to the accused, as he contended. If at all, he paid as per Exs.P7 to P9 definitely, he should deduct whatever the admitted payment made by the accused in the year 2013 for the tune of Rs.2,93,000/-. By ignoring the same, he brought the present case and contended that, it was paid by the accused in Judgment 52 C.C.No.16596/2015 respect of earlier loan obtained in the year 2011. It is not his case that, he used to lent loan to the accused very oftenly, though the earlier loan was not cleared by the accused; he once again came forward to pay the alleged loan of Rs.5 lakhs without obtaining any security documents. Therefore, the very approach of complainant on appraisal of overall as well as documentary evidence available on record, it made clear that, the complainant had not approached this court with clean hands. Therefore, the accused is not liable to pay any amount which covers under the questioned cheque, as there is no legally existence of debt payable by her to the complainant. Hence, the accused is entitled for benefit of doubt for acquittal.
61. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
In 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 Judgment 53 C.C.No.16596/2015 receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
In the 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".
62. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.5 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to Judgment 54 C.C.No.16596/2015 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".
63. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, she is not liable to pay Ex.P1 cheque amount of Rs.5 lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and she is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken her defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge Judgment 55 C.C.No.16596/2015 of liability of Rs.5 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
64. 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 cheque Ex.P1 in discharge of her legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
65. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, Judgment 56 C.C.No.16596/2015 accused has to set up a probable defence and she need not prove the defence beyond reasonable doubt.
66. 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 his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.5 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his 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.
67. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 57 C.C.No.16596/2015 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 28th day of July - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Krishnappa PW.2 : Basavaraj S Sajjan
List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Postal Acknowledgment card Ex.P6 : Reply notice Ex.P7 : Statement of account Ex.P8 : Colour Xerox copy of credit slip Ex.P9 : Colour Xerox copy of transfer debit Judgment 58 C.C.No.16596/2015
List of Witnesses examined on behalf of the defence:
DW.1 : V.Malini List of Exhibits marked on behalf of defence:
Ex.D1 : Photograph
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 59 C.C.No.16596/2015
28.07.2020.
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.