Bangalore District Court
R. Nirmala vs Rajeswari M on 21 June, 2024
KABC010348682022
IN THE COURT OF LXV ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY (CCH-66)
PRESENT
SRI. HEMANTH KUMAR. C.R, B.A.L., L.L.B.,
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 21st day of June, 2024
Crl.A.No.1581/2022
Petitioner: R. Nirmala, W/o R. Ravi,
Aged about 45 years,
R/at No.16/B,
7th Main Road, 9th Cross,
Bhuvaneshwarinagar,
K.P. Agrahara,
Bengaluru- 23.
(By Sri. G.S, Advocate)
-Vs-
Respondent: Rajeshwari M,
W/o B.M. Manjuunath,
Aged about 44 years,
R/at No.304, 3rd Floor,
'Sai Pradan' Apartment,
Koligu Main Road,
Yelhanka Post,
Bengaluru- 64.
(By Sri. B.A.R, Advocate)
2 Crl.A.No.1581/2022
JUDGMENT
This appeal is filed by the appellants u/s.374 of Cr.P.C, seeking to set aside the judgment and order of sentence dated 29.11.2022 passed by learned the XXIII ACCM, Bengaluru (for short 'the trial Court') in C.C.No.11609/2019 convicting the accused for the offence punishable u/s.138 of NI Act sentencing to pay fine of Rs.3,70,000/-, in default, to undergo simple imprisonment for six months.
2. The appellant is accused and the respondent is complainant before the trial Court in the criminal case and hence, for the purpose of convenience, the parties to this appeal are hereinafter referred to in their rank before the trial Court.
3. The complainant filed private complaint against the accused u/s.200 of Cr.P.C. on the file of trial Court praying to take cognizance of offence and to register criminal case against the accused for the offence punishable u/s.138 of Negotiable Instruments Act (for short 'NI Act').
The case of complainant is that he know the accused through her brother - Manikanttan since 2010 and the accused frequently used to meet the complainant and developed a very good friendship over a period. On 28-10-2018, the accused performed the marriage of her daughter Soudarya" with Mr. Y. Vinodkumar and for the purposes of performing the marriage of her daughter, the accused was in need of funds. The accused borrowed Rs.3,50,000/- from the complainant in the month of August 2018 and promised to repay the same by the end of December 2018. The Complainant having good confidence and also at the request of the brother of the accused Mr. 3 Crl.A.No.1581/2022 Manikantan, gave the said amount of Rs.3,50,000/- to the accused. The accused performed the marriage of her daughter and in the first week of January 2019, the complainant demanded the accused to repay the amount which she had borrowed from the complainant. The accused did not have money and requested the complainant two weeks time to repay the money. In the last week of January 2019, the accused issued cheque bearing No.439231 dated 06.02.2019, drawn on Canara Bank, Magadi Road Branch, Bangalore, for a sum of Rs.3,50,000/- in favour fo the complainant and promised that the cheque would be honoured. The complainant having presented the cheque for encashment through her banker, Vijaya Bank, Vijaynagar Branch, Bengaluru. The said cheque dishonoured with an endorsement dated 08.02.2019 as 'payment stopped by drawer'. The complainant immediately contacted the accused and stated in respect of dishonour of cheque. The accused has not paid the cheque amount, which was issued towards discharge of outstanding liability. The complainant having left with other option has issued legal notice on 27.02.2019 through RPAD demanding the accused to pay the aforesaid cheque amount of Rs.3,50,000/-. The accused has not claimed the legal notice and as such, it was returned with an endorsement dated 01.03.2019 as "not claimed". The accused has either neither paid the cheque amount nor replied to the legal notice. As such, the complainant has filed the complaint before the jurisdictional Magistrate for the offence punishable u/s.138 of NI Act.
4. The trial Court after receiving the complaint has registered the case in PCR and sworn statement of the complainant was recorded and the complainant has filed affidavit and got examined as P.W.1 4 Crl.A.No.1581/2022 and got marked Exs.P.1 to P.5. The trial Court has taken cognizance for the offence punishable u/s.138 of NI Act and issued summons to the accused. The accused having been served with the summons has appeared through his advocate and was enlarged on bail and the plea of the accused was recorded and the accused having pleaded not guilty, the sworn statement of the complainant is treated as complainant evidence and the accused having filed the application u/s.145(2) of NI Act seeking permission to put up his defence, the said application was allowed and the case was posted for cross-examination of P.W.1. The complainant has not tendered for cross-examination and as such, her cross-examination is taken as nil and the case was posted for arguments. Subsequently, the complainant has filed application u/s.311 of Cr.P.C. seeking to recall the P.W.1 for cross-examination. The said application was allowed and the case was posted for cross-examination of P.W.1. P.W.1 having been present before the Court on 15.02.2021, the accused and her counsel have remained absent. The cross-examination of P.W.1 was taken as nil and the case was posted for statement of the accused and subsequently, the accused having filed application for recall of P.W.1 and the same having been allowed. The accused has cross-examined the P.W.1 and the case was posted for defence evidence. The accused has led the evidence and got examined one witness, Manager of the Canara Bank, Magadi Road as D.W.1 and got marked documents at Exs.D.1 & D.2. The accused has led the evidence as D.W.2. The trail Court Court having heard the arguments and considering the case on merits has convicted the accused for the offence punishable u/s.138 of NI Act and sentenced to pay fine of Rs.3,70,000/- and in default of payment of fine amount to undergo simple imprisonment for a period of six months.
5 Crl.A.No.1581/20225. The appellant/ accused being aggrieved by the said judgment passed by the trial Court has preferred this appeal on the following among other grounds:
The appellant has contended that the trial Court has rested its judgment on the assumption that the respondent has been successful in proving the loan which the respondent is said to have given to the appellant. The trial Court has failed to see the alleged loan amount is Rs.3,50,000/- is a big money and is said to have been given in the month of August 2018. The appellant has also contended that the complainant has not specifically mentioned the date on which she lent the money to the accused and the basic requirement is that the non-mentioning of the date of loan in the notice or in the complaint or in the evidence clearly make out that there was no loan transaction between the respondent and the appellant. The appellant has also contended that she is presently resides with her family along with her husband and children and for few years, she was residing with her mother and when she was residing with her mother, the appellant's brother Manikantan was also residing with the family members and there was an incident in the month of July 2016, whereby the appellant's brother Manikantan was forcibly taken by few persons with whom he had transaction and when he was picked up from the home, certain things and documents were taken along with him and he was freed after the appellant's mother had gone to the Police station and had made known to the Police about the force used against her son and the issue was closed when Manikantan was freed. The appellant has further contended that when the Manikantan was taken from his home, he has taken along with certain documents and probably in that, the appellant's instruments were also taken by those, who had 6 Crl.A.No.1581/2022 taken her brother. The appellant submits that she did not find two of her cheque leaves and therefore, she had reported the loss her cheque leaves to her banker, Canara Bank, Magadi Road. The missing cheque leaves were taken note by the banker on her request ane the banker had endorsed in the records about the stoppage of the cheque for collection. Exs.D.1 and D.2 are the letters which the appellant had given to her banker for loss of cheques and her request for stoppage if those are presented for collection. The appellant has further contended that she has examined the banker as D.W.1 and she has given the true facts of the letter given by the appellant. The appellant has further contended that the said fact and the evidence given by D.W.1 has been overlooked by the trial court. It is evident from Ex.D.1 and D.2 that the appellant had lost the instrument before 01.08.2016. As such, how can the appellant issue a cheque as alleged by the respondent in the last week of January 2019. The said important piece of evidence has been overlooked by the trial Court. The appellant has also contended that the trial court has been misled by the respondent in submitting that the appellant required the loan money for her daughter's marriage and the appellant has waited for some incident and she has taken benefit of the marriage event that had taken place in the house of the appellant. The appellant's daughter's marriage was prefixed and she had planned well for her daughter's marriage and she never required any money for her daughter's marriage. The appellant has also contended that the respondent has not submitted any documents to show that the respondent had lent the money to the appellant. There is absence of any document between the appellant and respondent regarding the making or creating of loan will clearly show that the appellant is lying 7 Crl.A.No.1581/2022 and giving false facts with respect to the loan. The appellant has further contended that the trial Court has believed that the notice is served. Ex.P.5 is the unserved RPAD cover, which has been returned to the sender and has been produced by the respondent before the trial Court. The said RPAD has been returned unserved. The address shown in the postal cover is not of the appellant and the appellant has proved that the address is not that of her and she did not reside at the given point of time at the address shown in postal envelop. The trial Court believed that the address shown is correct and also believed that the notice has been served. As such, the appellant was not within the knowledge of notice as such, she could not reply to such notice. The appellant has further contended that the respondent has failed to prove the basic element of NI Act that i.e., the provision of loan and the appellant has demonstrated very well before the trial Court that no loan was given to the appellant at any point of time and the appellant never knew the respondent and she has no reason for knowing the respondent at any point of time. The appellant has further contended that her brother Manikantan probably had the transaction with the respondent and the respondent along with her brother and goons had forcibly taken the appellant's brother and extracted certain documents. The appellant has further contended that the trial Court has not taken with seriousness that why a Police complaint was not lodged at the appropriate time and also the appellant has contended that the trial Court has questioned as to why the appellant has not led the evidence of her brother Manikantan to display that the appellant and respondent had no transaction, but the transactions were between the application's brother and the respondent. The appellant has further contended that the trial Court has failed to see 8 Crl.A.No.1581/2022 that the signature on Ex.P.1, which is marked as Ex.P.1(a) is not that of the appellant. The appellant has further contended that the instrument, when she had lost probably blank and the respondent who probably possessed the instrument when her brother was forcibly taken and when she understood that the instruments are not of the appellant's brother, but of the appellant, has through the banker's help made use of the signature and also the address. The appellant has further contended that from any angle, the appellant had no reasons to be convicted, but the trial Court going to the surmises and fictional deductions has convicted the appellant and the respondent has miserably failed to prove the debt, the loan and the issuance of cheque and the payments thereof. In the absence of concrete proof issuance of cheque and offence u/s.138 of NI Act cannot be sustained. Hence, the appellant prays to allow the appeal and set aside the judgment and conviction passed by the trial Court.
6. After registering the appeal, this court ordered for issuance of notice to the respondent. The respondent appeared through his counsel. The trial Court records were secured.
7. Heard the arguments of both sides. I have gone through the trial Court records, the impugned judgment of conviction and the grounds urged in the appeal memo.
8. In the light of grounds urged in the appeal memo, the following points arise for my consideration:
1. Whether the appellant/ accused has made out sufficient grounds to interfere with the impugned judgment and order of conviction?
2. What Order?9 Crl.A.No.1581/2022
9. My findings on the above points are:
Point No.1: In the negative, Point No.2: As per the final order, for the following:
REASONS
10. Point No.1: The appellant counsel has addressed the arguments contending that the judgment passed by the trial Court is against the law and it is on the assumption that the respondent has successfully proved the loan transaction, which the respondent said to have given to the appellant. The appellant counsel has also addressed the arguments contending that the trial Court has failed to see the alleged loan amount is Rs.3,50,000/-, which is a big amount said to have been given in the month of August 2018. The appellant counsel has also contended that the trial Court has failed to consider the cross-examination of P.W.1 and has also further contended that the complainant has not mentioned the date of the loan transaction in the complaint nor in the notice or in the evidence, non-mentioning of the date of loan transaction is fatal to the case of the complainant and the same has not been considered by the trial Court. The appellant counsel has also contended that the appellant is presently residing with her family her husband and children and for few years, she was residing with her mother and when she was residing with her mother, the appellant's brother Manikantan was also residing with the family members and in the month of July 2016, the appellant's brother Manikantan was forcibly taken by few persons with whom he had transaction and when he was picked up from the home, certain things and documents were also taken along with him and he was freed after the appellant's mother had gone to the Police station and made known to the Police about the 10 Crl.A.No.1581/2022 force used against her son and the said issue was closed when Manikantan was freed. The appellant counsel has further contended that when the Manikantan was taken from his home, he has taken along with certain documents and probably in that, the appellant's instruments were also taken by those, who had taken her brother. The appellant counsel has further addressed the arguments contending that the application has given the letter to the banker, Canara Bank, Magadi Road as per Ex.D.1 for stoppage of the cheque for collection alleging loss of her cheques and the banker has taken note of it and on her request for stopped of cheque if those are presented for collection. The appellant counsel has further contended that the evidence given by D.W.1 has been overlooked by the trial Court and also Ex.D.1 and D.2 produced by the accused. The appellant counsel has further contended that the appellant had lost the instrument before 01.08.2016 and she having reported the same to her banker as per Exs.D.1 and D.2. The appellant had no instrument, as such, the issuance of cheque by the application by the appellant in the last week of January 2019 does not arise. The appellant counsel has addressed the arguments contending that the appellant was not need of loan amount for her daughter's marriage as the appellant's daughter's marriage was prefixed and she had planned well and she never required any money for her daughter's marriage. The appellant counsel has further contended that the respondent has forcibly taken the appellant's brother and taken the instruments along with him, but she having realized that the said instrument was not that of the appellant's brother and it belong to the appellant, to make use of the said instrument, the respondent has waited for appropriate time and when the appellant's daughter's marriage was fixed and finalized, the respondent has made use of 11 Crl.A.No.1581/2022 the said cheque. The appellant counsel has further contended that the respondent has not produced any document to show that she had lent Rs.3,50,000/- to the appellant. The appellant counsel has further contended that the evidence of P.W.1 clearly show that the respondent has bank account and it was operating since a long time and long before the alleged loan to the appellant. The appellant counsel has further contended that respondent has not produced any statement with respect to bank and no piece of evidence before the trial Court to show that the respondent had the said amount in her account or in any other mode that she had capacity to lend the money to the appellant, a sum of Rs.3,50,000/- on the given date of time and no income tax returns or other documents are produced before the Court. The appellant counsel has further contended that the trial Court has considered Ex.P.5 has been served, whereas, Ex.P.5 was returned unserved RPAD cover and the address shown in the postal cover is not of the appellant and though the appellant has proved that the address mentioned in Ex.P.5 is not that of her and she had not resided in said address and the trial Court has believed that the address is correct and has taken the service of notice as served and also held that the appellant in spite of service of notice has not replied to the said notice. The appellant counsel has also addressed arguments contending that the trial Court has failed to see that the signature on Ex.P.1, which is marked as Ex.P.1(a) is not that of the appellant and the instrument which she had lost probably blank. The appellant counsel has further contended that the signature on Ex.P.1 is not of the appellant and the signature of appellant in other records before the trial Court will make it clear that the signature differs completely. The appellant counsel has further contended that in the absence of concrete proof 12 Crl.A.No.1581/2022 of loan and issuance of cheque and offence u/s.138 of NI Act cannot be sustained and the presumption u/s.139 of NI Act starts only when the parties satisfy the Court of the basic element of the liability on the part of the opposite person, who issues the cheque or the instrument. In the present case, the respondent has failed to prove the basis elements of offence. Hence, the appellant counsel prays to dismiss the complaint and acquit the accused.
11. The respondent counsel has filed written arguments contending that the appeal filed by the appellant is devoid of merits and also further contended that the trial Court has rightly convicted the appellant. The respondent counsel has further contended that the trial Court has rightly appreciated the documents and evidence of parties, as such, no interference is required by this Court and prays to dismiss the appeal. The learned respondent counsel has also filed written arguments.
12. On perusal of the records it is noticed that the case of the complainant is that the accused is known to complainant since 2010 to her brother Manikanta and the accused would frequently meet the complainant and developed very good friendship over a period of time. On 28.10.2018 the accused conducted the marriage of her daughter, for the purpose of performing the marriage of her daughter the accused was in need of funds, as such the accused has borrowed for a sum of Rs.3,50,000/- from the complainant in month of August -2018 and promised to repay the same by the end of December -2018. The complainant having confidence and also at the request of the accused brother gave an amount of Rs3,50,000/- to the accused. The accused having performed the marriage of her 13 Crl.A.No.1581/2022 daughter the complainant in the month to January 1 st week 2019 demanded the money and the accused requested for time and later in the last week of January -2019 the accused issued cheque bearing No.439231, dated 06.02.2019, drawn on Canara Bank, Magadi Road Branch for a sum of Rs.3,50,000/- and the said cheque having been presented, dishonored with endorsement 'payments stopped by drawer' and the complainant having intimated the same to the accused and the accused has not paid the amount, as such the complainant got issued legal notice on 27.02.2019 and the same returned unserved with endorsement not claimed. Hence, the complainant has filed the present complaint before the jurisdictional Magistrate and the trial court having ordered for registration of the PCR and having recorded the sworn statement of the complainant and having lead the evidence as PW1 and the complainant got examined herself as PW1 and got marked Ex.P1 to Ex.P5 documents and the plea of the accused was recorded and the accused was not pleaded guilty and claimed to have defence. Subsequently the accused having appeared and filed application under Section 145(2) of the Negotiable Instrument Act and the complainant has been cross-examined by the accused counsel and after completion of the complainant evidence, the statement of accused under Section 313 of Cr.P.C., recorded. The accused having lead the evidence of witness Assistant Bank Manager as DW1 and got marked Ex.D1 and Ex.D2 documents and the accused has also led the evidence as DW2. The DW1 and DW2 have also been cross examined by the counsel for complainant and the trial court having heard the arguments of both the complainant and accused, has convicted the accused for the offences punishable under Section 138 of the Negotiable Instrument Act.
14 Crl.A.No.1581/202213. On perusal of the evidence of PW1, the complainant has lead her evidence as PW1 and got marked Ex.P1 to Ex.P5 documents. PW1 has been cross-examined by the accused counsel with respect to defence of the accused. The PW1 has admitted that she is earning Savi boutique earlier at Vijayanagar and now shifted to Yelahanka. PW1 has also admitted that the accused and her brother are known to her through her relative. The PW1 has also admitted that in the month of August 25 th 2018 she has paid an amount of Rs.3,50,000/- to the accused at her residence. PW1 has also admitted that she does money transaction only through cheque and the amount she had kept in her house. PW1 has also admitted that she has not taken any documents in writing at the time of lending the money. PW1 has also admitted that accused has issued Ex.P.1 cheque and she has filled the said cheque in her presence. The PW1 has denied the suggestions of the accused with respect to accused brother having filed kidnap case against the complainant and also further denied the suggestion that on 01.08.2017 the Manikanta mother having lodged complaint before Amruthahalli PS. PW1 has also denied the suggestion that the writing in Ex.P.1 cheque and signature found on Ex.P.1 cheque are in different ink. PW1 has denied that Ex.P.3 notice has not been served to accused and also the accused handing over the cheque and the signature found on the Ex.P.1 is not that of the accused and the accused has not met the complainant at any time and she had not taken any loan. The PW1 has also denied the suggestion of the accused that on 31.08.2017 the complainant along with others had kidnapped the accused brothers and while kidnapping Manikanta they had taken other documents in the said documents the cheque in the present case was also one of the document. The PW1 has 15 Crl.A.No.1581/2022 also denied the suggestion that the said complainant knew that the said cheque was that of Manikanta's sister and she has affixed her signature and filed false case against the accused. The PW1 has also denied the suggestion that the accused in the year 2017 had given the letter to the bank for stop payment stating that the said cheque was been lost. The PW1 has denied the other suggestions made by the accused.
14. The accused has also lead the evidence of the Assistant Manager, Canara Bank, Magadi Road as DW1 and the said witness has deposed that the accused with respect to account No.1174101119739 had given the stop payment letter and the said letter is marked as Ex.D.1 and the said letter was given with respect to cheque Nos.439231 and 439232. DW1 has further deposed that the said application the bank has endorsed the seal and the accused has given the said application on 01.08.2016 and the same has been received and the mobile number mentioned in the application is 8147058892. The DW1 has further deposed that on receipt of the said application we have made stop payment with respect to said cheque. The DW1 has been cross examined by the accused counsel, wherein the DW1 has admitted that she is working as Assistant Manager and the Bank Manager is D.C. Arya. DW1 has also admitted that the summons has been issued to Chief Manager. DW1 has admitted that there is no authorization by Chief Manager to depose in the said case. DW1 has produced the original letter of stop payment and the said document is marked as Ex.D.2. The DW1 has admitted that the accused address not mentioned in Ex.D.1 and Ex.D.2. The DW1 has admitted that she has not seen the bank statement of the accused prior to 01.08.2016. The DW1 16 Crl.A.No.1581/2022 has denied the suggestion that the signature found on Ex.D.1 and Ex.D.2 is not that of the accused. The DW1 has denied the suggestion that the mobile number mentioned in Ex.D.1 and Ex.D.2 is not found in records. The DW1 has admitted that it is true that if the amount in the account is less than the cheque amount then the stop payment cannot be issued. The DW1 has denied the suggestion that the accused has not issued application for stop payment on 01.08.2016 in spite of that they have issued false endorsement and they have created Ex.D.1 and Ex.D.2 to help the accused. DW1 has admitted that there is no record in the bank with respect to loss of cheque and also further admitted that in Ex.D.1 and Ex.D.2 there is no mention with respect to loss of cheque and also further submitted that there is no mention in Ex.D.1 and Ex.D.2 with respect to reasons for stop payment. The DW1 has denied the other suggestions of the accused.
15. The accused has led the evidence as DW2 and she has deposed that the allegation made in the complaint are all false and she has not borrowed any amount at any point of time nor requested or received Rs.3,50,000/- in the month of August -2018 from the complainant. The accused has also contended that the she has not given the alleged cheque to the complainant for discharge of any liability and she does not owe any money to the complainant. The accused has also further contended that she is not found cheques bearing No.439231 and 439232 pertaining to her account, as such she had given stop payment advice to the Manager Canara Bank on 01.08.2016 to prevent misuse of the cheques. The accused has also further deposed that the her brother Manikanta had monetary transaction with complainant and the complainant brother 17 Crl.A.No.1581/2022 had told her that few years back he was kidnapped and kept in confinement by the friends of the complainant for not having paid the outstanding money to the complainant, while kidnapping the Manikanta the valuables and documents that were in his custody were taken by the abductors. The accused has also further deposed that she came to know about the said case after she got the court notice and she was surprised by the notice as she had never met the complainant in her lifetime. When enquired with his brother he revealed that he had transaction with the complainant and has further deposed that the said cheque had been misused by the complainant by forging signature of the accused.
16. On perusal of records, it is noticed that the complainant having got examined himself as P.W.1 has reiterated the complaint averments and in support of her case, got marked documents at Exs.P.1 to P.6 and P.W.1 was subjected to cross-examination and the accused has cross-examined P.W.1 with respect to her defence. The accused has also led the evidence as D.W.2 and also got examined one witness as Anitha Lakshmi, Asst. Manager of Canara Bank, Magadi Road as D.W.1 and got marked documents at Exs.D.1 and 2. On perusal of records, it is noticed that the case of the complainant is that the accused had borrowed the loan of Rs.3,50,000/- in the month of August 2018 for performing the marriage of her daughter- Soudarya and for repayment of said amount, the accused issued cross cheque and when the said cheque was presented for encashment, the same was returned with endorsement that 'payment stopped by drawer' and after issuance of demand notice, the accused has not paid the amount to her. The accused counsel cross-examined P.W.1 in length and the P.W.1 18 Crl.A.No.1581/2022 has admitted the suggestions of the accused and also P.W.1 has contended that the said cheque has been issued by the accused for discharge of enforceable debt. The appellant/ accused has taken the contention that the trial Court has not considered Exs.D.1 and D.2 produced by the accused and also the cross-examination made by the accused to P.W.1, wherein P.W.1 has not proved that she had sufficient amount to pay the loan to the accused. The accused has also taken the contention that she had issued the cheque for discharge of legally enforceable debt and the accused has also taken the contention that her brother Manikantan was kidnapped by the complainant's friends and the accused brother was possessed the said cheques and the said cheques having taken by the complainant has misused the said cheques by forging her signature. The accused has also taken the contention that the notice issued by the complainant has not been served on accused and further defence of the accused is that she had given application to her banker with respect to stop payment of two cheques on 01.08.2016. The accused having taken the said contention has cross-examined P.W.1. She has denied the suggestion of the accused with respect to kidnapping of her brother and also misusing the said cheque by forging her signature. The accused to substantiate her contention has not produced any document to show that the accused had kidnapped the complainant' brother and he has obtained the alleged cheque from the accused brother. The accused has not examined her brother to substantiate with respect to alleged kidnap and the complainant came to possession of alleged cheques and also the accused has not initiated any legal action after the issuance of notice or after filing of the present complaint. The accused having taken the contention that when the cheques were lost, she had 19 Crl.A.No.1581/2022 given the letter to the bank for stop payment and as per the instructions of the accused, the present cheque returned with endorsement that 'payment stopped by the drawer'. The accused got examined the D.W.1 to substantiate the said fact that she has given the letter to the bank for stop payment of present cheque and another cheque. On perusal of the evidence of D.W.1 and also the contention taken by the accused, the accused has given the letter for stop payment on 01.08.2016, whereas Ex.P.1 cheque is dated 06.02.2019. The contention of P.W.1 is that the said cheque was issued by the accused in the last week of January 2019. The defence of accused is that she has given the stop payment letter to the bank on 01.08.2016 and the said letters are marked as Exs.D.1 and D.2. The contention taken by the accused that she had issued the stop payment letter on 01.08.2016 has been negativated by the suggestion of the accused during the cross-examination, wherein the accused has suggested P.W.1 that on 31.08.2017, P.W.1 kidnapped her brother Manikantan and at that time, he had taken some documents and he possessed the cheque and the complainant having known that the said cheque belongs to Manikantan's sister, she has forged the signature of the accused and lodged false complaint. Though P.W.1 has denied the suggestion of the accused, and also the accused has further suggested P.W.1 that in the year 2017, the alleged cheque was lost and the accused has given stop payment letter to the bank. The said suggestion made by the accused to P.W.1 falsifies the evidence of D.W.1 that she has issued the application for stop payment on 01.08.2016 itself. If the accused had made the stop payment on 01.08.2016 by issuing the application, the said suggestion to P.W.1 that on 31.08.2017, she kidnapped the brother 20 Crl.A.No.1581/2022 of the accused -Manikantan forcibly and the said Manikantan had possessed the alleged cheque and same has been misused by the complainant does not arise. The accused has also taken the contention that the notice has not been served on her and she having taken the said contention that the notice issued her has been returned with an endorsement 'not claimed'. With respect to the said fact, the complainant has cross-examined D.W.2, wherein the accused has admitted that the address mentioned in Exs.D.5 and D.6 is correct and also she has further admitted as she has refused and not claimed, the same has been sent back with an endorsement 'not claimed'. The accused having cross-examined P.W.1 and having led the evidence of D.W.1 and she having examined herself as D.W.2 has failed to rebut the presumption. Though the accused has denied the receipt of loan amount of Rs.3,50,000/- and issuance of cheque and she has not replied to the notice issued by the complainant, the accused cannot take the contention that the complainant has no financial capacity to lend the amount without setting up the said defence in the reply notice about financial capacity of complainant. The accused has not denied the cheque that the same does not belong to her account though the accused has denied the writings and also signature on the said cheque, the accused has not made any effort to disprove the same by leading cogent evidence and by producing material documents before the Court. The accused having taken the contention that she has not received RPAD, the burden is on her to disprove that the service of notice has not been proper by producing the document to show that the address mentioned in Exs.P.5 and P.6 is not that of the accused.
21 Crl.A.No.1581/202217. On perusal of entire evidence, documents and evidence available on record, the accused has failed to discharge the initial burden to rebut the statutory presumption placed by the complainant. The complainant by producing the documents has proved the guilt of the accused that the accused is liable to pay the amount due under cheque- Ex.P.1 and the said cheque has been issued for legally enforceable debt. P.W.1 has substantially proved that the accused has issued Ex.P.1- cheque for legally enforceable debt. The contention of the accused has not been proved by the accused by producing any document to substantiate her defence. The accused having disputed the writing of the cheque and also her signature, she has not taken any steps to prove that the signature and writing of the cheque does not belong to the accused. The accused having failed to do so and also has not made any effort to prove that the said cheque was not issued for legally enforceable debt. The accused while answering the 313 statement has taken the contention that her brother - Manikantan was kidnapped and for his release, she had issued two cheques of her and two cheques of her brother. The said contention taken by the accused has also not been substantiated by any document and evidence. The accused has failed to prove that she has not issued the said cheque for legally enforceable debt.
18. The proposition of law is that it is always not necessary for the accused to step into witness-box and to depose before the court to prove his contentions. It is trite proposition of law that accused can prove his contention by way of cross-examining the complainant witnesses. In this case accused not disputed with regard to issuance of cheque. There is a clear and cogent evidence available 22 Crl.A.No.1581/2022 that cheque belongs to the accused which bears her signature. When such being the case, it is incumbent upon the accused to give explanation under what circumstances she parted with the possession of Ex.P1- cheque. In his statement under Section 313 of Cr.P.C., accused has stated that as her brother- Manikantan was kidnapped, for his release, she has given her two cheques and also two cheques of her brother. With respect to the said contention, the accused has not produced any document and has not led the evidence of her brother to substantiate the said fact. The accused with regard to possession of cheque belonging to her in the hands of the complainant. When such being the case the burden is on the accused to disprove that cheques were not issued towards legally enforceable debt.
19. There is an evidence of the complainant that cheque belongs to the accused. Cheque bears the signature of the accused. The accused disputed her signature on the cheque and issuance of cheque. As such this court proceeded to examine Sec.118 and 139 of Negotiable Instrument Act as they provided for statutory presumption. The statute mandates that once the signature of accused on the cheque is established then the 'reverse onus' clause become operative. In such a situation the obligation shifts upon the accused to discharge the presumption imposed upon.
20. The Hon'ble Supreme Court in its decision reported in (2009) 2 SCC 513 in the case of Kumar Exports v/s Sharma Carpets and another decision of the Hon'ble Supreme Court reported in AIR 2019 SC 1983 in the case of Basalingappa v/s Mudibasappa held 23 Crl.A.No.1581/2022 that presumption u/s.118 and 139 of NI Act are rebuttable presumptions. It is further held that rebuttal does not require proof beyond reasonable doubt. Something probable has to be brought on record. In this case the accused has not elicited any admissions from the mouth of complainant nor rebut the presumptions available to the complainant as provided u/s.118 and 139 of NI Act. The bare denial of passing of consideration would not aid the case of the accused. The Hon'ble Supreme Court clearly held that:
"A probable defence needs to be raised which must meet the standard of 'preponderance of probability', and not mere possibility".
21. The Hon'ble Supreme Court in its decision reported in (2019) 4 SCC 197 in the case of Bir Singh -Vs- Mukesh Kumar, it is held that:
"Even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment, would attract presumption u/s.139 of NI Act, in the absence of any cogent evidence to show that cheque was not issued in discharge of debt.
22. Ex.P.1 is the cheque belongs to the account of the accused. The accused though denied her signature on cheque marked at Ex.P.1, the accused has not substantiated her defence by producing the document and examining the witness. Such being the case, the defence raised by the accused in the considered opinion of this Court not inspire confidence or meet the standard of 'preponderance of probability'. In the absence of any other relevant evidence to disprove or to rebut the presumption available to the complainant, the accused in the opinion of this court has not discharged her onus 24 Crl.A.No.1581/2022 in proving her contention. The view of this court is fortified by the three bench decision of the Hon'ble Supreme Court reported in 2021 SCC ONLINE SC 75 in the case of M/s. Kalamani Tex and another v/s B.Balasubramanian. In view of the above observation, the trial court has rightly appreciated the evidence on record and there is no error committed by the trial court. As such the appellant has not made out sufficient ground to set aside the judgment passed by the trial court in C.C.No.11609/2019 dated 29.11.2022 and the judgment passed by the trial court does not require for any interference by this court. Accordingly, I answer point No.1 in the 'Negative.'
23. Point No.2: In view of my findings on point No.1, I proceed to pass the following:-
ORDER The appeal filed by appellant/ accused u/s.374(3) of Cr.P.C. is hereby dismissed.
The impugned judgment and order of sentence passed by XXII ACMM Court, Bengaluru in C.C.No.11609/2019 dated 22.11.2022 is hereby confirmed.
Send a copy of this judgment to the trial court along with TCR forthwith.
(Dictated to the Sr. Sheristedar, transcript corrected and then pronounced by me in the Open Court on this 21st day of June, 2024) (HEMANTH KUMAR C.R.) LXV Addl. City Civil & Sessions Judge, Bengaluru.