Bangalore District Court
Smt. Suma vs Sri. M. C. Nataraj on 15 April, 2023
KABC020211452020
IN THE COURT OF ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY.
SCCH-6
PRESENT: SMT. K. LAKSHMI, B.A.L, LL.B.,
IV Addl., Small Cause Judge &
ACMM, Court of Small Causes,
BENGALURU.
C.C. No.4514/2020
Dated this the 15th day of April 2023
COMPLAINANT : Smt. Suma
W/o Srinivas,
Aged about 40 years,
Residing at No.7/114,
10th 'C' Cross, 6th Block,
Rajajinagar,
Bengaluru-560 010.
(By Advocate Shri. K. G.
Nirguna)
V/s
ACCUSED : Sri. M. C. Nataraj
S/o Late M. Chinnaiah,
Aged about 46 years,
Residing at No.11,
C.C. No. 4514 / 2020
Kote Road, Near Government
Girls Hostel Shimoga,
Karnataka-577 201.
And also at:
Librarian
D.V.S Polytechnic,
Basaveshwara Circle,
SLV Road, Shimoga,
Karnataka-577 201.
(By Advocate Shri. V. S. Sham
Sundar)
* * *
-: J U D G M E N T :-
The complainant has filed the present complaint
against the accused under section 200 of Cr.P.C for the
offence punishable under section 138 of Negotiable
Instrument Act.
2. According to the Complainant, the accused is her
full brother. The accused is the owner of property
bearing No.1, Corporation Katha No. 25/25/ 4/7,
measuring 1200 square feet i.e., East to West : 30 feet
and North to South : 40 feet, situated at Shimoga. It is
C.C. No. 4514 / 2020
further alleged that the accused availed a credit facility
to the tune of Rs. 23,75,000/- from the City Co-
Operative Bank Limited, Kote Road, Shimoga, by
mortgaging the above said property. The accused has not
paid the amount to the Bank towards EMI. Hence, the
Bank has treated the account of accused as non
preforming account. Thereafter, the bank has issued the
notice to the accused. The accused was need of money to
clear the bank loan, therefore, the accused approached
the complainant and availed a credit facility from her.
3. The complainant paid the amount of Rs.
8,00,000/- to the accused. The complainant has
transferred the amount of Rs.7,00,000/- to the loan
account through NEFT and an amount of Rs. 1,00,000/-
paid to the accused by way of cash. Subsequently for
repayment of the said amount the accused issued a cheque
bearing No.595676 dated 18-08-2020 for a sum of Rs.
8,00,000/- drawn on State Bank of India, Shimoga.
Thereafter, the cheque was presented for collection in the
C.C. No. 4514 / 2020
account of the complainant and the said cheque was
dishonored by the said Bank on 29-09-2020 on the
ground that the "payment stopped by drawers".
Thereafter, the complainant issued a statutory notice
dated 05-10-2020 under section 138 of the Negotiable
Instrument Act, to the accused. The accused received the
notice. The accused did not even sent any reply to the
said statutory notice. Since the said notice was not
complied with, the above said complaint is preferred by
the complainant.
4. In her pre-summoning evidence, complainant was
examined on affidavit. She reiterated the contents of
complainant and got marked ten documents as per Ex.
P-1 to Ex. P-10. Upon appreciation of pre-summoning
evidence, accused was summoned for an offence
punishable under section 138 of the Negotiable
Instrument Act. After receipt of summons, the accused
appeared before this Court through his counsel and he
was enlarged on bail. Plea of accusation has been read
C.C. No. 4514 / 2020
over and explained to the accused and she pleads not
guilty and claims to be tried. The accused was examined
u/Sec.313 of Cr.P.C. She totally denied the entire case of
the complainant.
5. The accused moved an application to cross
examine the complainant and said application came to be
allowed. The accused has cross examined the
complainant. On the other hand, the accused has led
evidence as DW-1. He relied on the evidence of DW-2
& DW-3 and also Ex. D-1 to Ex. D- 61 on his behalf.
Thereafter, the case is posted for arguments.
6. Heard the arguments.
7. On the basis of the above facts, the following
points arise for my consideration :-
1. Whether the complainant proves beyond all
the reasonable doubt that, the accused is liable
to pay the amount of Rs. 8,00,000/- to her ?
C.C. No. 4514 / 2020
2. Whether the complainant proves beyond all
the reasonable doubt that, the accused has
issued a cheque bearing No. 595676 dated
18-08-2020 for a sum of Rs. 8,00,000/- drawn
on State Bank of India, Shimoga and when the
complainant presented the cheque for
encashment and the cheque was dishonored
due to "payment stopped by drawer", for
which the complainant has issued a legal notice
through RPAD and the same was served, but
the accused has not repaid the said amount and
thereby the accused has committed the offence
punishable under section 138 of Negotiable
Instruments Act?
3. Does the impugned cheque represent the
legally enforceable debt at the time of its
drawing ?
4. What order ?
C.C. No. 4514 / 2020
8. My answers to the above points are as follows :
Point No.1 : In the Negative,
Point No.2 : In the Negative,
Point No.3 : In the Negative,
Point No.4 : As per final order,
for the following:
-: R E A S O N S :-
POINTS No. 1 to 3 :-
9. The complainant has filed her affidavit in lieu of
her oral chief examination. In her affidavit she has
testified regarding lending of Rs.8,00,000/- to the
accused, issuance of the cheque, its dishonour, issuance of
legal notice and failure of the accused to pay the cheque
amount. The complainant has produced the disputed
the cheque bearing No. 595676 dated 18-08-2020 for a
sum of Rs. 8,00,000/- drawn on State Bank of India,
Shimoga, alleged to be issued by the accused in favour
of the complainant. Ex. P-1 stands in the name of the
complainant. Ex. P-2 is the Banker's endorsements. Ex.
C.C. No. 4514 / 2020
P-3 and Ex. P-4 are the office copies of the legal notices,
which are dated 05-10-2020. Ex. P- 5 and Ex. P-6 are
the postal receipts. Ex. P-7 is the postal consignment.
Ex. P-8 is the bank statement. Ex. P-9 is the unserved
postal cover. Ex. P-10 is the bank challen.
10. On the other hand, the accused has led evidence
as DW-1. The complainant is his full sister. His mother
was suffering from severe cordial disease and her heart
beat count is less than 37%. The money was required for
her treatment. His mother was the owner of property
bearing No.1, Corporation Katha No. 25/25/ 4/7,
measuring 1200 square feet i.e., East to West : 30 feet
and North to South : 40 feet, situated at Shimoga. It is
further alleged that the accused availed a credit facility to
the tune of Rs. 23,75,000/- from the City Co-Operative
Bank Limited, Kote Road, Shimoga. His mother was
executed the gift deed in respect of the said property to
bear the expenses in respect of her treatment. He has
availed a loan facility from the bank for his mother
C.C. No. 4514 / 2020
treatment by mortgaging the above said property. He
was not able to pay the installments in respect of said
loan. The bank initiated the recovery proceedings against
him. Hence, he requested the financial assistance from
the complainant and her husband in order to clear the
bank loan. Accordingly, the complainant and her
husband paid the amount of Rs. 24,75,000/- to
transferred the amount to his loan account in order to
clear the bank loan. He further deposed that the
complainant and her husband forced to transfer the
property in their names for the payment of the said
amount. The complainant has forcibly secured the gift
deed from him. The alleged gift deed executed on the
condition that the gifted property transferred again in
the name of accused after the repayment of loan. The
complainant has availed a loan by mortgaging the said
property after securing the gift deed without his consent
and knowledge. The complainant has also filed suit for
injunction against him in respect of gifted property.
C.C. No. 4514 / 2020
11. He further deposed that the disputed cheque
was not issued to the complainant for the discharge of
debt. The contents of cheque are not in the handwriting
of the accused. His mother was suffering severe cordial
disease and her heart beat count is less than 37% and she
required money for her treatments. He is working in the
school. He has given the signed blank to his mother for
her treatment expenses. The complainant and her
husband used to visit his house and take the impugned
cheque along with other cheques without his knowledge
and consent. The complainant and her husband misused
the cheques in order to make wrongful gain from him.
The husband of complainant had also filed a false
complaint against him in order to grab the property from
him. He is not liable to pay the cheque amount to the
complainant. The complainant has not come to the
Court with clean hands.
12. DW-2 and DW-3 are the bank officials. They
deposed that the accused has borrowed a loan from the
C.C. No. 4514 / 2020
City Co-operative Bank. The said amount was repaid by
the accused through his sister and her husband. The
complainant and her husband paid a sum of Rs.
24,75,000/- to the bank. The bank executed the release
deed in favour of accused after the repayment of said
amount. DW-3 deposed that the complainant borrowed
a loan from Arya-Vysya Shreeram Co-operative Bank by
mortgaging the property. DW-2 and DW-3 produced
the copies of memorandum of deposit of title deeds, gift
deed, pro-note, requisition letter, loan sanction letter,
loan application bank statement, property estimate report
From No. 15, consideration receipts, affidavit, Property
extract and sale-deed and they were marked as Ex. D-20
to Ex. D-61.
13. Learned counsel for the complainant argued that
the complainant has discharged has initial burden of
proving the case by his oral as well as documentary
evidence. It is also contention of the complainant that the
accused has not initiated the legal action against the
C.C. No. 4514 / 2020
complainant to recover the disputed cheques. The
accused was aware of the fact that the disputed cheque
was with the complainant. He has also contended that
the benefit of presumption under Sections 118 and 139 of
Negotiable Instruments Act is in favour of the
complainant, and therefore the accused has failed to rebut
the presumption. Hence, the accused is liable to be
convicted.
14. To counter these submissions, the learned
counsel for defence counsel submits that the mother of
accused suffering from cordial disease and the accused
spent huge money for her treatment. His mother
executed the gift deed in respect of her property to bare
the medical expenses. The accused has availed a loan from
the bank for his mother treatment by mortgaging the
gifted property. He was unable to clear the bank loan.
The bank initiated the recovery proceeding against him.
Hence, the accused has approached the complainant and
her husband to clear the bank. The complainant and her
C.C. No. 4514 / 2020
husband transferred the amount of Rs. 24,75,000/- to
the bank for the clearance of loan. The notice was not
sered on the accused. The complainant and her husband
forcibly secured the gift deed from him after clearance of
loan to the bank. He further argued that he disputed
cheque was not issued to the complainant for the
discharge of debt. The contents of cheque are not in the
handwriting of the accused. His mother was suffering
severe cordial disease and her heart beat count is less than
37% and the money required for her treatments. He is
working in the school. He has given the signed blank to
his mother for her treatment expenses. The complainant
and her husband used to visit house of accused and take
the impugned cheque along with other cheques without
knowledge and consent of accused. The complainant and
her husband misused the cheques in order to make
wrongful gain from the accused. It is further contended
that though there is presumption under Sec.118 and 139
of Negotiable Instruments Act, existence of legally
enforceable debt is not a matter of presumption
C.C. No. 4514 / 2020
u/Sec.139 of Negotiable Instruments Act. In support of
his contention, he relied on the following citations :-
1. Criminal Appeal No.814/2011 : E.
Dhanuskodi Vs. D. Sreedhar.
15. In view of rival contentions raised by the
parties, it is necessary to consider the statutory provisions
in this regard and also proposition of law.
Section 118 of Negotiable Instrument Act lays
down that:
"Until the contrary is proved, it
shall be presumed that every
Negotiable instrument was made
or drawn for consideration."
Section 139 of N.I. Act contemplates that :
" Unless the contrary is proved, it
shall presume that holder of the
cheque receive the cheque of the
nature referred to section 138 of
the N.I. Act for the discharge, in
whole or in part, of any debt or
other liability."
C.C. No. 4514 / 2020
Section 58 of Negotiable Instrument Act lays
down that:
Instrument obtained by unlawful
means or for unlawful consideration. When
a negotiable instrument has been lost, or
has been obtained from any maker,
acceptor or holder thereof by means of an
offence or fraud, or for an unlawful
consideration, no possessor or indorsee who
claims through the person who found or so
obtained the instrument is entitled to
receive the amount due thereon from such
maker, acceptor or holder, or from any
party prior to such holder, unless such
possessor or indorsee is, or some person
through whom he claims was, a holder
thereof in due course.ﾵ"
It is also relevant to refer to Section 2
(d) of the Indian Contract Act, 1872,
which defines consideration as under:
"When, at the of the promis er promiseesee
or any other person has done or abstained
from doing, or does or abstains from doing
or promises to do or abstain from doing
something, such act or abstinence or
promise is called a consideration for the
promise".
C.C. No. 4514 / 2020
16. The presumption mandated by Section 139 of
N.I. Act does indeed show the existence of legally
enforceable debt or liability. It is a rebuttal presumption.
It is open to raise the defence, wherein the existence of
legally enforceable debt or liability can be contested. For
rebutting presumption accused is not required to adduce
evidence with unduly high standard of proof, but the
standard of proof for doing so is that preponderance of
probability. If the accused is able to raise probable
defence, which creates doubt about the existence of
legally enforceable debt or liability, then the onus shift
back to the complainant. It is also clear that for rebutting
the presumption accused can rely on the material
submitted by the complainant or his cross examination
and he need not necessarily adduce his defence evidence
in all the cases.
17. According to learned counsel for complainant,
the accused has admitted the issuance of cheques and also
signatures in the cheques. The Court is bound to draw
C.C. No. 4514 / 2020
the presumption under Section 139 of the Negotiable
Instrument Act that the cheque was issued for the
discharge of a debt or liability. In the light of above
contention, the question to be decided is whether the
mere drawing of cheque would lead to the presumption
under Section 139 of the Negotiable Instrument Act that
the the cheque in issue is received for the discharge of
debt or liability. In my view, it will not. Admittedly,
the admission of cheque and signature of the accused in
the cheque may prove that the cheque is drawn by him,
provided the Court is satisfied that the cheque was
written and signed by the drawer voluntarily, and such
drawing is not vitiated by any legal grounds. Mere proof
of drawing of cheque will not further prove the relevant
purpose for which the cheque is drawn. This is because of
the simple reason that a cheque can be drawn by a person
for various purpose other than for the discharge of debt
or other liability also. Therefore, the Court cannot, on
the mere proof of execution of cheque, conclude that
such execution was for the discharge of debt or other
C.C. No. 4514 / 2020
liability, unless there is evidence to prove such fact or
heres is any presumption in law to presume such fact.
Even on a plain reading of Section 139 of the Act, it
cannot be said that the mere execution/drawing of the
cheque will automatically lead to the presumption that
the cheque is drawn for a debt or other liability. On the
other hand, it is clear the said section, certain factors
refereed to in the section are to be established. The mere
fact that the cheque produced in court came from
possession of complainant alone will not be sufficient to
prove execution. Thus, the holder's right not be merely
to receive or recover the amount stated or shown in the
cheque, but such amount must be due thereon from the
parties thereto. To support my view, I rely on the
decision reported on (1973) 2 SCC 808, Kali Ram Vs
State of H. P and also Hiten P. Dalal -Vs-
Brrathindranath Banerjree, (2001) 6 SCC 16,
wherein our Hon'ble Apex Court held that as
hereunder :-
C.C. No. 4514 / 2020
"the Court must be satisfied of
existence of facts which have to be
present before the presumption can be
drawn".
Further in the case of NEPC Micon
Limited -Vs- Magan Leasing Limited,
AIR 1995 SC 1952, wherein our
Sureme Court held that the Courts must
interpret Section 138 to the legislative
intent to suppress the mischief and
advance the remedy. The objective of the
Act is general and Section 138
specifically is to enhance the acceptability
of cheques and to indicate faith in the
efficacy of negotiable instruments for the
transaction of business. Section 138
criminalises the dishonor of cheques.
This is in addition to the Civil remedy
that is available. This is in addition to
the civil remedy that is available.
Through the criminalistaion of the
dishonor of cheques, the legislature
intended to prevent dishonest on the part
of the drawer of the cheques, the
legislature intended to prevent dishonest
on the part of the drawer of a negotiable
Instrument. The interpretation of
Section 138 must not permit dishonest of
the drawee of the cheque as well.
C.C. No. 4514 / 2020
In Sunil Todi -Vs- State of Gujrath,
Criminal Appeal No. 1446 / 2021, the
Hon'ble High Court held that the posted
dated cheque issued after the debt was
incurred would be covered within the
meaning of debt. Section 138 would also
include cases where the debt is incurred
after the cheqeu is drawn but before it is
presented for encashment.
18. In the case of Sri Pati Singh -Vs- State of
Jarkand, 2021 SCConline SC 1002, our Hon'ble
Supreme Court held that "if a cheque is issued as
security and if debt is not repaid in any other form
before the due date of if there understanding or
agreement between the parties to defer the repayment,
cheque would mature for presentation. Further, the
borrower would have the option of repaying the loan
amount or such financial liability in any other form and
in that manner if the amount of loan due and payable has
been discharged within the agreed period, the cheque
issued as security cannot thereafter be presented." Thus,
Section 138 of Act indicate that an offence under the
C.C. No. 4514 / 2020
provisions arises if the cheque represents a legally
enforceable debt on the date of maturity. Though a post
dated cheque might be drawn to represent a legally
enforceable debt at the time of drawing, for the offence
to be attracted, the cheque must represent a legally
enforceable debt at the time of encashment. If there has
been material change in the circumstance such that the
sum in the cheque does not represent a legally
enforceable debt at the time of maturity or encashment,
then the offence under Section 138 is not made out. It
may be borne in mind that cheques are issued in the
course of various types of business transaction in which
several complicated situations may rise. The Court
cannot visualize all such situations. Without foreseeing all
such instances. It may not be proper for this Court to
lay down any general proposition that the complainant
who is a 'payee' or holder in due course' as the case may
be, is the 'holder' of the cheque. By carefully choosing
the word 'holder' in section139 of the Act, legislature has
achieved its goal whereby a complainant who seeks the
C.C. No. 4514 / 2020
Court to draw the presumption under Section 139 of the
Act, is bound to establish that he is the 'holder of the
cheque, as defined under Section 8 of the Act. If a
contrary interpretation is given to Section 139 of the
Act, the Complainant will be able to realize any amount
stated in the cheque through criminal case by the mere
production of the cheque and without even proving his
entitlement to receive or recover the amount from the
drawer, as referred to in Section 8. But, such a recover
without proof of entitlement, is put of question by way
of a civil litigation. A criminal prosecution is not
intended to provide for easy short cuts for recovery of
money without proving even right to recover the money
refereed to in the cheque from the drawer. If the
complainant proves his entitlement as refereed to in
Section 8, the presumption under Section 139 can
certainly be drawn in his favour. In the absence of
establishing the same, no presumption shall be drawn
under Section 139, in favour of the complainant. The
cardinal rule when a cheque is issued for security is that
C.C. No. 4514 / 2020
between the date on which the cheque is drawn to the
date on which the cheque matures, the loan could be
repaid through any other mode.
19. It is also the allegation of the defence that the
accused has not given authority to complainant to
complete the blanks in the cheque. It is also alleged that
the complainant has completed the blanks in the cheque
without the consent of accused. The complainant
committed an act of forgery by filling the blanks in the
cheque. As regards the defence raised by the accused that
he did not fill the details in the cheque himself and had
not handed over signed blank cheque to the complainant
and particulars were not filled by the accused thus this
case is not maintainable. At this juncture it would be
worthwhile to discuss the provisions under Sections 20
and 118 of the Negotiable Instruments Act, which is as
under:
20. Inchoate stamped instruments.
Where one person signs and delivers to
another a paper stamped in accordance
C.C. No. 4514 / 2020
with the law relating to negotiable
instruments then in force in [India], and
either wholly blank or having written
thereon an incomplete negotiable
instrument, he thereby gives prima facie
authority to the holder thereof to make
or complete, as then case may be, upon it a
negotiable instrument, instrument, for
any amount specified therein and not
exceeding the amount covered by the
stamp. The person so signing shall be
liable upon such instrument, in the
capacity in which he signed the same, to
any holder in due course for such amount,
provided that no person other than a
holder in due course shall recover from
the person delivering the instrument
anything in excess of the amount intended
by him to be paid thereunder.
118. Presumptions as to negotiable instruments of
consideration Until the contrary is proved, the following
presumptions shall be made:
(a) of consideration that every
negotiable instrument was made or drawn
for consideration, and that every such
instrument, when it has been accepted,
C.C. No. 4514 / 2020
indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or
transferred for consideration;
(b) as to date that every negotiable
instrument bearing a date was made or
drawn on such date;
(c) as to time of acceptance that every
accepted bill of exchange was accepted
within a reasonable time after its date its
date and before its maturity;
(d) as to time of transfer. that every
transfer of a negotiable instrument was
made before its maturity;
(e) as to order of endorsements that
the endorsements appearing upon a
negotiable instrument were made in the
order in which they appear thereon;
(f) as to stamps that a lost promissory
note, bill of exchange or cheque was duly
stamped;
(g) that holder is a holder in due
course that the holder of a negotiable
instrument is a holder in due course;
provided that, where the instrument has
been contained from its lawful owner, or
form any person in lawful custody thereof,
C.C. No. 4514 / 2020
by means of an offence or fraud, or for
unlawful consideration, the burden of
proving that the holder is a holder in due
course lies upon him.
The bare perusal of section 20 of Negotiable
Instrument Act reveals that the holder of the cheque has
implied authority to complete the blanks in the cheque.
The filling of the details in the blank cheque perse does
not attract the provisions of Section 87 of Negotiable
Instrument Act. In other words, the completing of blank
cheque by the holder cannot be said to be material
alteration in the cheque and also forgery. It is no law that
for a cheque must be said to be valid the contents must be
filled by the drawer. Moreover, nothing contrary has
been proved to show that the complainant does not have
implied authority to fill the blank cheque. Thus, the
defence of the accused that he has not filled the contents
in the impugned cheque is not tenable in the eye of law.
In support of this contention, I relied on the following
citations.
C.C. No. 4514 / 2020
20. In the case of Mojj Engineering Systems
Limited & Ors. Vs. A.B. Sugars Ltd.; 154 (2008)
Delhi Law Times 579, the Hon'ble Delhi High Court
had observed as under :-
" Even otherwise, prima facie, it
was the petitioners who had handed
over the undated cheque for a certain
amount to the respondent in terms of a
contract between the parties. Since an
undated cheque cannot be encashed, it
can only mean that the petitioners had
authorized the complainant to enter an
appropriate date on it.
Further in the case of Young Vs.
Grote (1827) 4 Bing. 253 it was held
that when a blank cheque is signed and
handed over, it means the person
signing it has given an implied authority
to any subsequent holder to fill it up.
Similarly, in Scholfield Vs. Lord Londesborough
(18951899) All ER Rep 282 it was held that whoever
signs a cheque or accepts a bill in blank, must necessarily
intend that either the person to whom he gives it, or
some future holder, shall fill up the blank which he has
C.C. No. 4514 / 2020
left. This common law doctrine was also affirmed by
Hon'ble Justice Macnaghten in Griffiths Vs. Dalton
[1940] 2 KB 264 where it was held that the drawer of an
undated cheque gives a prima facie authority to fill in the
date. This aspect has also been incorporated in Section 20
of the Negotiable Instruments Act, which deals with
Inchoate Stamped Instruments. The Hon'ble Supreme
Court in T.Nagappa Vs. Y.R.Murlidhar, (2008) 5
SCC 633 while discussing the scope of Section 20 held
that by reason of this provision, a right has been created
in the holder of the cheque. Prima facie, the holder
thereof is authorized to complete the incomplete
negotiable instrument.
21. A collective reading of the above provisions
shows that even under the scheme of the Negotiable
Instrument Act, it is possible for the drawer of a cheque
to give a blank cheque signed by him to the said cheque
being filled up at a subsequent point in time and
presented for payment by the drawer. There is no
C.C. No. 4514 / 2020
provisions in the Negotiable Instrument Act which either
defines the differences in the handwriting or the ink
pertaining to the material particulars filled up in
comparison with the signature thereon as constituting a
material alteration for the purpose of Section 87 of
Negotiable Instrument Act. What, however, is essential
is that the cheque must have been signed by the drawer.
If the signature is altered or does not tally with the
normal signature of the maker, that would be a material
alteration. Therefore, as long as the cheque has been
signed by the drawer, the fact that the filling of details in
the blank cheque perse does not attract the provisions of
forgery.
22. In this case, the complainant has taken a
contention that the accused has agreed to repay the
amount and issued the impugned cheques for the
repayment of said amount to him. On the contrary, the
learned defence counsel submits that there is no existence
of debt or liability towards the accused. Hence, the
accused is not liable to pay the cheque amount to the
C.C. No. 4514 / 2020
complainant. Thus, it is necessary to define the debt.
Aiyar's Judicial Dictionary defines debt as follows:-
'Debt is a pecuniary liability. A
sum payable or recoverable by action
in respect of money demand.'
In Webb - Vs- Strention,
1888QBD 518, defined debt as ' a
sum of money which is now payable in
the future by reason of a present
obligation, debitum in praedenti,
solvendum in futuro'.
Further, in the case of Banchharam
Majumdar -Vs- Adyanath
Bhattachrjee,(19090ILR 36 Cal 936,
Honble High Court of Calcutta held
that 'the word debt is as applicable to a
sum of money which has been
promised at a future day as to a sum
now due and payable.
Thus, the term debt also includes a sum of money
promised to be paid on a future day by reason of a
present obligation. A post dated cheque issued after the
debt has been incurred would be covered by the
definition of debt. However, if the sum payable depends
C.C. No. 4514 / 2020
on a contingent event, that it takes the color of a debt
only after the contingency has occurred. Consideration
means 'something in return'. In every legal contract,
there must be something in return. An agreement is
legally capable to be enforced only when each of parties
to it gives something and gets something. The
consideration should not be unlawful, illegal, immoral or
opposed to public policy. 'No consideration no contract'
means every legal contract needs a lawful consideration,
without any lawful consideration there is no contract.
An agreement to become a contract must give rise to a
legal obligation. If an agreement is incapable of creating a
duty enforceable by law, it is not a contract.
23. Now, coming to the facts, it is evident from the
statement of PW-1 and Ex. P-8, the amount of Rs.
7,00,000/- transferred to the loan account at the request
of accused. According to the complainant, the accused
has borrowed a loan from her and issued the cheques in
her favour. On the contrary, the accused denied issuance
C.C. No. 4514 / 2020
of cheque and also contents of the cheque are not in his
handwriting. It is specific defence of the accused is that
the complainant and her husband transferred the amount
of Rs. 24,75,000/- to the bank for the clearance of loan.
The notice was not served on him. The complainant and
her husband forcibly secured the gift deed from him after
clearance of loan to the bank. He further argued that the
disputed cheque was not issued to the complainant for
the discharge of debt. The contents of cheque are not in
the handwriting of the accused. His mother was suffering
severe cordial disease and her heart beat count is less
than 37% and money required for her treatments. He is
working in the school. He has given the signed blank to
his mother for her treatment expenses. The complainant
and her husband used to visit house of accused and take
the impugned cheque along with other cheques without
knowledge and consent of accused. The complainant
and her husband misused the cheques in order to make
wrongful gain from the accused. Thus, it is necessary to
C.C. No. 4514 / 2020
extract the relevant portion of the evidence of PW-1.
The relevant portion of evidence of PW-1 as hereunder :-
"ನನನ ಪತ ಶಶಶನವಸ ರವರರ ಸಹ ಹಣ ಕರಟಟದರ
ಎಎದದ ನನನ ಫರರದನಲ ನಮರದದ ಇರದತತದ ಎಎದರ ಸರ.
ಟ 25
ಸಕಯದ ಸಸತತ ನನದ ಮತದತ ನನನ ಯಜಮನರದ ಸಶರ ಒಟದ
ಲಕ ಹಣವನದ ನ ತತರ....
ನ ಆರರಶಪತರ ಖತಗ ಹಕರದತತಶವ ಎನದ
ಆರರಶಪತರದ ನನಗ ಕರಡಬಶಕಗದದ ರರ. 25,73,000/
ಹಣದ ಮರದಪವತ ಆಗದವವರಗರ ಆರರಶಪತರ ಹಸರನಲದದ
ಸಸತತನನ ದ ಭದಶತಗಗ ನನನ ಹಸರಗ ಬರಸಕರಟಟರದತತರ ಎಎದರ
ಸರಯಲಲ. ತಯಯವರದ ಬರದದಕರಟಟ ದನ ಪತ ತವನದ
ನ
ಹಜರದಪಡಸಲದ ಆಗದತತದಯಶ ಎಎಬ ಪ ಶಶನಗ ಸಕಯದ ನನನ
ತಯಯ ಆರರಶಪತರದ ನನನಎದ ಪಡದದಕರಎಡ ಹಣಕಕ ಹಗರ
ಸಸತತನನ ದ ಹಳದ ಮಡದತತರಎದದ ಹಶಳ ದನಪತ ತ
ಬರದದಕರಡದವಎತ ಹಶಳ ಆರರಶಪತರಎದ ದನಪತ ತವನದ
ನ
ನ ತತರ....
ಬರಸಕರಟಟರದತತರ ಎನದ
ನನನ ತಯಯವರದ ಆರರಶಪತರಗ ದತ 25.11.2015
ರಎದದ ದನಪತ ತವನದ
ನ ಬರದದಕರಟಟರದತತರ ಎಎದರ ಸಕಯದ
ನನನ ಹಸರಗ ದನಪತ ತವನದ
ನ ಬರದದಕರಡದವ ಸಮಯದಲ
ನ ತತರ. ಶವಮಗಗ ಕರಶಟಯಲರದವ ಮನ 3
ಗರತತಗರದತತದ ಎನದ
ದ , ಮರರನಶ
ದ ಎಎದರ ಸಕಯದ ಎರಡದ ಅಎತಸತನದದ
ಅಎತಸತನದದ
ಅಎತಸತನಲ ಸಣಣದಗರದವ ಕರಠಡಯನದ
ನ ಕಟಟಲಗರದತತದ
ನ ತತರ.
ಎನದ ನನನ ಹಸರನಲ ಆರರಶಪತರದ ದನಪತ ತ
ಬರದದಕರಡದವ ಸಮಯದಲ ಅದರ ಮಲಲ 1 ಕರಶಟ 50 ಲಕ
C.C. No. 4514 / 2020
ಎಎದರ ಸರಯಲಲ. ಸಕಯದ 60 ರಎದ 70 ಲಕ ಇರಬಹದದದ
ನ ತತರ. ನನನ ತಯಯ ಜಶವತ ಅವಧಯಎದಗ ನ.ಡ3 ರಲ
ಎನದ
ಬರದರದವ ಸಸತತನನ ದ ಸಟ ಕರಶಆಪರಶಟವ ಬಲಎಕ ನಲ
ಅಡಮನ ಮಡಲಗತದತ ಎಎದರ ಗರತತರದವದಲಲ. ನನನ ತಯ
ಮಮತ ಹರಎದದವ 10 ವರರಕಕ ಮದಎಚಯಶ ಹಮದಯ ಸಎಬಎಧ
ನ ತತರ....
ಕಯಲಯಎದ ಬಳಲದತತದದರದ ಎನದ
ನನನ ತಯಯವರದ ಚಕತತಗಗ ಹಣ ಬಶಕಗದದ ಕರಣ
ನನನ ತಯಯವರದ ಸರರಟಗಗ ಸಹ ಮಡದದರದ ಎಎದರ
ಸಕಯದ ಆರರಶಪತರದ ರರ.23,75,000/ ಹಣಕಕ
ಸಎಬಎಧಪಟಟಎತ ಮತ ತ ಎಎದದ ಹಶಳ ಸಹಯನದ
ನ
ನ ತತರ.....
ಪಡದದಕರಎಡರದತತರ ಎನದ
It is further suggested to PW-1 as hereunder :-
ನನನ ಹಸರಗ ಬಕಸ ಪತ ತದ ಪ ಶಕರ ಬಎದ ಸಸತತನ ಮಶಲ
ದ ,
ಶವಮಗಗದ ಸಟ ಕರಶ-ಆಪರಶಟವ ಬಲಎಕ ನಲ ಸಲ ಇದದ
ಅದರ ಮರದಪವತಗಗ ರರ.23,75,000/- ಹಣವನದ
ನ ಜಮ
ಮಡರದತತಶನ ಎಎದರ ಸರ....
ಆರರಶಪತರಎದ ನನದ ಸಸತತಗ ಸಎಬಎಧ ಪಟಟಎತ ನನದ
ಬಕಸದ ಪತ ತವನದ
ನ ಬರಸಕರಎಡ ಕರಣ ಅವರದ ರವದಶ
ನ ಕರಡಲದ ಬಧಲರರದವದಲಲ ಎಎದರ ಸಕಯದ ನಮ
ಹಣವನದ ಮ
ತಯಯವರದ ಬಕಸ ಪತ ತವನದ
ನ ಬರದದಕರಟಟರದತತರ
ನ ತತರ. ನನನ ತಯಯವರದ ಸಸತತಗ ಸಎಬಎಧ ಪಟಟಎತ ಬಕಸ
ಎನದ
ಪತ ತವನದ
ನ ಬರದದಕರಟಟರದವದಲಲ ಎಎದರ ಸಕಯದ ನನನ
ನ ತತರ. ಬಕಸಪತ ತವನದ
ತಯಯವರದ ಬರಸಕರಟಟರದತತರ ಎನದ ನ
C.C. No. 4514 / 2020
ಆರರಶಪತರದ ನನನ ತಯಯ ಹಶಳಕಯ ಮಶರಗ
ಬರದದಕರಟಟರದತತರ ಎಎದದ ಅದರಲ ಉಲಖ ಇರದವದಲಲ...
ಆರರಶಪತರದ ಈಗಲರ ಸಹ ಬಕಸ ಪತ ತದಲ ನಮರದದ
ಮಡರದವ ಸಸತತನಲಯಶ ವಸವದರ ಎಎದರ ಸರ....
ರರ.23,75,000/ ಹಣದ ಮರದಪವತಗ ಸಎಬಎಧ ಪಟಟಎತ
ನನದ ಆರರಶಪತರಎದ ಬಲವಎತವಗ ಸಸತತಗ ಸಎಬಎಧಪಟಟಎತ
ನ ಬರಸಕರಎಡರದತತಶನ ಎಎದರ ಸರಯಲಲ. ಸಕಗ
ಬಕಸಪತ ತವನದ
ಎರಡದ ಫಶಟರಶಗಳನದ ದ , ಅದದ ಬಕಸ ಪತ ತದಲ
ನ ತರಶರಸದದ
ಬರದದಕರಟಟ ಸಸತದತ ಎಎದದ ಒಪಪದ ಕರಣ ಸದರ ಫಶಟರಶಗಳನದ
ನ
ನ.ಡ.4 ಮತದತ ನ.ಡ.5 ಎಎದದ ಗದರದತದ ಮಡಲಯತದ.
ಆರರಶಪತರದ ಈಗಲರ ಸಹ ಬಕಸ ಪತ ತದಲ ನಮರದದ
ಮಡರದವ ಸಸತತನಲಯಶ ವಸವದರ ಎಎದರ ಸರ....
ದನ ಪತ ತದಲ ನಮರದದ ಮಡರದವ ಸಸತತಗ ಸಎಬಎಧ
ಪಟಟಎತ ನನದ ಆರರಶಪತರ ವರದದದ ಶವಮಗಗದ
ನಲರಲಯದಲ ಶಶಸತ ನಭರಎದಜ ಕರಶರ ದವವನದ
ನ
ಹರಡರದತತಶನ ಎಎದರ ಸರ. ಸಕಗ ಅದಕಕ ಸಎಬಎಧ ಪಟಟಎತ
ವದಪತ ತವನದ ದ , ಸಕಯದ ಅದನದ
ನ ತರಶರಸದದ ನ ಒಪಪದ ಕರಣ
ತ
ಅಸಲದ ದವ ಸಎಖಲ 209/2021 ರ ವದ ಪತ ತದ ಜರಕ
ಪ ಶತಯನದ
ನ ನ.ಡ.6 ಎಎದದ ಗದರದತದ ಮಡಲಯತದ. ಸಕಗ
ಒಎದದ ದಖಲತಯನದ
ನ ದ ,
ತರಶರಸದದ ಅದದ ಅವರ
ತಯಯವರದ ಆರರಶಪತರಗ ಬರದದಕರಟಟ ದನ ಪತ ತ ಎಎದ
ತ ಪ ಶತಯನದ
ಒಪಪದ ಕರಣ ದನ ಪತ ತದ ಜರಕ ನ ನ.ಡ.7 ಎಎದದ
ಗದರದತದ ಮಡಲಯತದ. ಸಕಯದ ಸಸತತ ಆರರಶಪತರದ
C.C. No. 4514 / 2020
ದನಪತ ತವನದ
ನ ಒತತಯ ಪವರಕವಗ ಬರಸಕರಎಡರದತತರ
ನ ತತರ.
ಎನದ ಆರರಶಪತರದ ದನಪತ ತವನದ
ನ ಒತತಯ
ಪವರಕವಗ ಬರಸಕರಎಡರದತತರ ಎಎದದಅವರ ವರದದದ
ರವದಶ ಕನರನದ ಕ ತಮವನದ
ನ ತಗದದಕರಎಡರದವದಲಲ.
ಆರರಶಪತರದ ನನನ ತಯಯಎದ ಬಲವಎತವಗ ದನಪತ ತವನದ
ನ
ಬರಸಕರಎಡರದತತರ ಎಎದದ ಗರತತದ ನಎತರವ ಸಹ ನನದ
ರವದಶ ಕನರನದ ಕ ತಮವನದ
ನ ತಗದದಕರಎಡರದವದಲಲ
ಎಎದರ ಸರ. ನ.ಡ.7 ದನಪತ ತದಲ ಸಟ ಕರಶಆಪರಶಟವ
ಬಲಎಕ ನಲ ದ ,
ಸಲವದದ ಅದನದ
ನ ತಶರಸಬಶಕಎದದ
ನಮರದರದತತದ ಎಎದರ ಸಕಯದ ನನನ ತಯಗ ಓದದಬರಹ
ಬರದವದಲಲ, ಬಲವಎತವಗ ಬರಸಕರಎಡರದತತರ ಎನದ
ನ ತತರ.
ಅಸಲದ ದವ ಸಎಖಲತ 209/2021 ನನದ ಹರಡರದತತಶನ ಎಎದರ
ಸಕಯದ ನನದ ರವದಶ ದವಯನದ
ನ ಹರಡರದವದಲಲ
ನ ತತರ....
ಎನದ
ನನಗ ಈ ಪ ಶಕರಣದಲ ಅನನದಕರಲವಗದತತದ ಎಎದದ
ಹಶಳ ಅಸಲದ ದವ ಸಎಖಲ 209/2021 ಅನದ
ನ ನನದ
ಳ ಹಶಳದತತದನ ಎಎದರ ಸರಯಲಲ.
ಸಲಸರದವದಲಲ ಎಎದದ ಸದಳದ
ಶವಮಗಗದದಲ ನನದ ಹರಡದದ ದವಗ ವಕಶಲರದ
ಕ.ಜ.ನಗದರಣ ಎಎದರ ಸರ. ಅಸಲದ ದವ ಸಎಖಲ
209/2021 ರಲ ಕ.ಜ.ನಗದರಣ ಅವರದ ನನನ ಪರವಗ
ದ , ಆ ಕಶಸನದ
ವಕಲತತನನ ದ ಹಕದದ ನ ನನಶ ಹರಡರದತತಶನ ಎಎದರ
ಸರ....
ನ.ಪ.1 ಚಕನಲರದವ ಹಸರದ, ಮತತ ಹಗರ ದನಎಕ ನನನ
ಯಜಮನರದ ಬರದರದತತರ. ಸಸ ಸಎಖಲ 17405/2020 ರಲ
ಸಲಸರದವ ಚಕ ನಲರದವ ಬರವಣಗ ರರದದ ಎಎದದ ನನಗ
C.C. No. 4514 / 2020
ಹಶಳಲದ ಆಗದವದಲಲ. ನ.ಪ1 ಚಕನಲರದವ ಹಸತಕರ ಹಗರ
ಸದರ ಪ ಶಕರಣದಲ ಹಜರದಪಡಸರದವ ಚಕನಲರದವ ಬರವಣಗ
ನ ತತರ....
ಒಎದಶ ಎಎದರ ಸಕಯದ ಗರತತರದವದಲಲ ಎನದ
From the evidence available on record discloses that
the impugned cheque was not issued for the discharge of
debt. Further, the complainant has stated in her evidence
that the contents of th cheques were filled by her
husband. She has not stated in the evidence that the
contents of the cheque were filled as per the instruction
of the accused. So, the main factor to be proved by
complainant to establish guilt of accused under Section
138 of the Negotiable Instrument Act is that the accused
has drwan the cheque. Section 7 of the Act defines
'drawer' thus: 'makes of a cheque is called the drawer'.
Thus, a person can be said to have 'drawn' a cheque, if
he has made, prepared or created a cheque. A cheque is
an instrument which is created, inconformity with
requirements of Section 6 read with Section 5 of the
Negotiable Instrument Act. A combined reading of
Sections 5 and 6 of the Act shows that a cheque consists
C.C. No. 4514 / 2020
of mainly, two parts. One is, an unconditional order in
writing directing the banker to pay a certain sum of
money only, or to the order of, a certain person or to
the bearer of the cheque. The second part is the signature
of the drawer. Thereafter, if prosecution proves that the
accused has made or prepared or created a cheque, which
contains an order in writing, under his signature,
directing the banker to pay a certain sum of money only
to the payee or the bearer or to the order of a certain
person, he can be said to have 'drawn; the cheque.
24. The fact that the accused has drawn the cheque
as stated above can proved by any known method
recognized by law. The mere production of a cheque or
marking the same as an exhibit in a case however, will
not prove that the cheque is drawn by the accused. The
factum of drawing or execution of cheque has to proved
by evidence of person or persons who vouchsafe for the
truth of the facts in issue. It can be proved by direct or
circumstantial evidence, which is admissible in law. This
proposition will be clear from what the Hon'ble
C.C. No. 4514 / 2020
Supreme Court held in Narbada Devi Gupta -Vs-
Birendra Kumar Jaiswal, (2003) 8 SCC at page 751 :
"The legal position is not in dispute that
mere production and marking of a
document as exhibit by the Court cannot
be held to be a due proof of its contents.
Its execution has to be proved by
admissible evidence, that is, by the
evidence of those persons who can
vouchsafe for the truth of the facts in
issue."
Like any other document, mere production and
marking of cheque may only prove that a cheque which
contains an order in writing and signature has come into
existence. But, it will not further prove that it is created
or executed by the accused. If the complainant has seen
the accused making or drawing a cheque, by writing in
the cheque and signing the same, as required in Section 5
and 6 of the Act, such person can give direct evidence
relating to such writing and afixture of signature and
prove that accused has drawn the cheque. If complainant
is not an eye witness to the drawing and if there is any
C.C. No. 4514 / 2020
other eye witness, such witness can be examined to prove
drawing of the cheque by accused. In cases in which,
there is no eye witness to drawing of cheque, prosecution
can adduce circumstantial evidence to prove drawing of
cheque by accused. It has also to be borne in mind that
there may be cases in which accused would not by
himself write in the cheque but, he would have caused
the cheque to be filled up by some other person. In such
cases, the person who actually wrote in the cheque can be
examined to prove that he filled up the cheque, under
instruction of accused or at his instance. In cases in
which, even such evidence is also not available,
prosecution can establish execution/drawing by placing
circumstantial evidence either oral or documentary
before court, from which, the court can draw an
inference whether accused has drawn the cheque or not.
25. The prosecution shall however, make clear to
court, each of the circumstance which is relied upon by
it, to establish drawing of the cheque by accused. The
mere fact that the cheque produced in court came from
C.C. No. 4514 / 2020
possession of complainant alone will not be sufficient to
prove execution, even though it may be one of the
circumstances. No law allows a court to presume that
the cheque which is produced and marked in court was
handed over or delivered to complainant by accused. The
court, at best, can say that the cheque was in possession
of complainant. But, under what circumstances it came to
his possession is to be stated by complainant. In the
absence of such statement, court cannot proceed on any
assumption that it was handed over to complainant by
accused. At any rate, no universal rule can be laid down,
what are the various circumstances to be proved to
establish drawing of cheque by accused, in the absence of
direct evidence. It depends on facts of each case. The
court shall consider whether each of the circumstances is
proved by prosecution, as per law and whether those
proved circumstances lead to an irresistible conclusion
that the cheque was drawn by the accused, as alleged by
prosecution. In cases in which only circumstantial
evidence is produced before court to prove drawing of
C.C. No. 4514 / 2020
cheque, court shall follow the mode adopted for
appreciation of circumstantial evidence, to enter a finding
whether cheque is drawn by accused, as alleged by
prosecution. If any circumstance or circumstances proved
in the case can be explained on any hypothesis which is
inconsistent with the assertion of drawing of cheque by
accused, accused cannot be said to have drawn the
cheque.
26. Whether the cheque was handed over or
delivered to complainant by accused and whether it was
drawn by accused are independent facts, which require
independent proof. The mere production of the cheque
in court will not prove either of the above facts. It seems
from the records in various cases involving offence under
Section 138 of the Act that most of the complaints do
not contain even the relevant facts. The complainant has
not made to speak the relevant facts in the witness box.
Everything seems to be taken for granted. This case also
falls under that category. The cases are often proceeded
with, as though mere production of cheque proves all the
C.C. No. 4514 / 2020
relevant facts which prosecution must establish in a
prosecution under Section 138 of the Act. This approach
is not a correct. For a successful prosecution of offence
under Section 138 of the Act, complainant must allege
and prove that the cheque was "drawn" or executed by
the accused. In the absence of an allegation in the
complaint that the cheque was drawn by the accused and
in the absence of proof of such fact, an accused cannot be
convicted for offence under Section 138 of the Act. The
court must be satisfied from the allegations in the
complaint and from the evidence adduced that the cheque
was made, prepared or created by accused. The court
must be convinced that the order in writing which is
found in the cheque was made by accused himself or by
some other person at the instance of accused or under his
instructions. Even if such other person cannot be
identified or examined, complainant can still prove
execution by circumstantial evidence. There must also be
satisfactory evidence to show that accused himself
C.C. No. 4514 / 2020
executed the cheque. Then alone, it can be said that
accused has drawn the cheque.
27. It is well settled that the party who pleads has
also to prove his case. Section 101 of the Indian Evidence
Act, 1872 defines 'burden of proof', which clearly lays
down that whosoever desires any Court to give judgment
as to any legal right or law dependent on the existence of
facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any
fact it is said that the burden of proof lies on that person.
It is definite stand of the accused that the complainant
and her husband secured the gift deed from him and the
complainant has secured the amount in the form of
property through gift deed. The complainant has
admitted the execution of gift deed by the accused in her
favour and she has deposed that her mother insisted her
to take the gift deed from the accused in respect of
amount paid to the bank. Thus, the gift deed came into
existence at the instance of the complainant towards the
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payment made by her to the bank to clear the debt due
by the accused in respected of gifted property. The
evidence bearing on the question of the gift deed in lieu
of payment made to the bank will have to be appreciated
in the background of the circumstances relating to the
execution of such a deed. There may be cases where
slightest evidence of such acceptance would be sufficient.
There may be still cases where the circumstances
themselves eloquently speck to such acceptance.
Normally, when a person gifts properties to another and
it is not an onerous gift. A reading of Ex. D-3 will show
that it is a simple gift without any obligation and the
donee is not made liable for liability. It is not onerous.
Admittedly, in the gift deed i.e., Ex. D- 3, the accused
did not say the circumstances under which Ex. D- 3 was
executed. I have also narrated the circumstances under
which the gift deed was executed, the circumstances
which are not disputed by the complainant. The
complainant has also accepted the gift. For proving the
acceptance, there need not be any direct evidence. It can
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be expressed or implied. It can also be inferred from the
facts and surrounding circumstances attending the
transaction of gift. In this case, the complainant availed
a loan from the bank by mortgaging the gifted property
after the execution of gift deed. Undisputed facts are
that the accused availed a loan from the bank by
mortgaging the gifted property and he was unable to
clear the loan amount. The bank has initiated the recover
proceedings. Thereafter, the accused requested the
complainant and her husband to clear the loan amount.
The complainant and her husband transferred the
amount of Rs. 24,75,000/- to the loan account of the
accused to clear the loan. After the clearance of loan, the
surrounding circumstances forced the accused to executed
the gift deed in favour of complainant in respect of
payment made by the complainant and her husband to
clear the bank loan. The circumstance speaks that the
accused is not able to clear the bank loan due to his
financial crisis. Further, no other properties stand in the
name of accused except gifted property Such being case,
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the question of executing the gift deed on account of love
and affection cannot be believable. Thus, it can be said
that the complainant received her money in the form of
property by virtue of gift deed.
28. Now coming to the facts, it is not established in
this case that the complainant is the holder of cheque.
She has not prover her entitlement to receive or recover
the amount stated in cheque, as due thereon from the
accused. On an analysis of evidence on record, I find
that the case set up by the complainant that the accused
has issued the cheque for the discharge of debt is not
believable. The complainant has not produced acceptable
evidence to show that the accused has secured the
property forcibly from her mother by way of gift deed.
Further, if the complainant's mother transferred the
property in favour of the accused without her free
consent, the complainant and his mother have every
opportunity to cancel the gift deed on the ground that
the gift deed came into existence against the will of the
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complainant's mother. Neither the complainant nor her
mother take any action to revoke the gift deed executed
in favour of accused. The conduct of the complainant
reveals that the alleged gift deed executed by her mother
in favour of accused on account of her love and affection.
Further, the complainant secured the gift deed from the
accused towards the payments made by her and her
husband to clear the bank loan. It is pertinent to note
that the complainant availed a credit facility by
mortgaging the gifted property after the execution of gift
deed. The evidence of PW-1 also shows that the gift deed
came into existed on 19-02-2020. Even according to the
complainant the accused alleged to be issued the cheque
on 06-06-2020. Hence, it creates doubt in the mind of
Court that the accused has not issued the impugned
cheque to the complainant for the discharge of debt.
The conduct of the complainant, as revealed from
evidence doesn't reconcile with normal human conduct.
It is not the case of complainant that the accused agreed
to pay the amount after the execution of gift in order to
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recover the property in his name. It is also not the case of
the complainant that the alleged gift-deed came into
existence on account of love and affection. Admittedly,
the accused is in financial crises that it is difficult to
expect the property from the accused at the free of cost.
Under such circumstance it can be presumed that the gift-
deed executed infavour of complainant in order to repay
the amount in the form of property. Admittedly, the
complainant received the amount from the accused more
than the amount of the debt due in the form of property.
The uncorroborated evidence of PW-1 does not prove
her entitlement to receive or recover the amount from
the accused. Hence, presumption under Section 139 of
Negotiable Instrument Act cannot be drawn in favour of
complainant. The admission of the cheque and signature
in the cheque alone will not prove the offence under
Section 138 of the Act.
29. It is a settled position of the law that the case of
the complainant should stand on his own legs. It cannot
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take advantage of the weakness of the defence, nor can
the court, on its own make out a new case for the
prosecution and convict the accused on that basis. If
defence version is incorrect, it does not mean that the
prosecution version is necessarily correct. Therefore, the
contention of the learned Counsel for the complainant
regarding the deep defence of the accused appears to be of
no use in sailing through the case of the complainant.
The Hon'ble Apex Court in the landmark judgment
titled as " Sharad Birdi Chand Sarda -Vs- State of
Maharashtra" (1984) 4 SCC 116", while discussing the
principles of appreciation of prosecution and defence
evidence, has held that-
''It is well settled that the prosecution
must stand or fall on its own legs, and it
cannot derive any strength from the
weakness of the defence. This is trite law.
However, where various links in a chain
are in themselves complete, then a false
plea or false defence may be called into aid
only to lend assurance to the court. In
other words, before using the additional
link it must be proved that all the links in
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the chain are complete and do not suffer
from any infirmity. It is not the law that
where there is any infirmity or lacuna in
the prosecution case, the same could be
cured or supplied by a false defence or a
plea which is not accepted by a court''.
Thus, in view of the totality of the circumstance
and the settled legal positions as discussed above, the case
attempted to be built by the complainant, appears to be
suffering from fatal infirmities so much so, it goes
directly to the root of the case and shakes the very edifice
on which the case of the complainant rests. It is also
relevant to mention here that it is of paramount
importance to demand evidence of unambiguous,
impeccable and of unimpeachable in nature so as to entail
criminal conviction of the accused and which the
complainant has failed to bring.
30. In the case of Kulvinder Singh vs Kafeel
Ahmad', Crl L. P. 478 of 2011, decided on
04.01.2013, Hon'ble Delhi High Court has held that
the basic principle in criminal law is that the guilt of the
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accused / respondent, must be proved beyond reasonable
doubt and if there is any slightest doubt about the
commission of an offence, then the benefit has to accrue
to him. Further in the case of Sh. Naveen Sethi Vs. Sh.
Pralok Kmar, it was held as hereunder :-
" At the same time, it is important to
underscore the established canon of
criminal law that in order to pass a
conviction in a criminal case, the
accused ''must be'' guilty and not
merely ''may be'' guilty. The mental
distance between ''may be'' guilty to
''must be'' guilty is a long one and
must be travel not on surmises and
conjectures, but by co-gent evidence."
Accordingly, in view of the above discussions, this
court holds that the complainant has failed to prove her
case. Thus, in view of the totality of the circumstance
and the settled legal positions as discussed above, the case
attempted to be built by the complainant, appears to be
suffering from fatal infirmities so much so, it goes
directly to the root of the case and shakes the very edifice
on which the case of the complainant rests. It is also
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relevant to mention here that it is of paramount
importance to demand evidence of unambiguous,
impeccable and of unimpeachable in nature so as to entail
criminal conviction of the accused and which the
complainant has failed to bring. In this case, there is a
major contradiction in the evidence of complainant. The
statement of complainant not corroborated by the
material available on the record. In such an event, it is
difficult to accept the version of the complainant. The
above precedents are squarely applicable to the case in
hand. Despite various deficiencies in the version of the
accused, I am unable to overlook the fact that the alleged
transaction itself is uncorroborated and unproved. The
complainant has failed to prove her case beyond all the
reasonable doubts and it has failed to fulfill all the
ingredients of offence under Section 138 of Negotiable
Instrument Act against the accused. The accused has been
able to rebut the presumption in favour of the
complainant as the standard of proof so as to prove a
defence on the part of the accused is only 'preponderance
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of probabilities' and inference of preponderance of
probabilities can be drawn not only from the materials
brought on record by the parties but also by reference to
the circumstances upon which he relies as the same was
held by Hon'ble Supreme Court in M/s Indus Airway
Private Limited and others -Vs- Magnum Aviation
Private Limited and another (CA No.830 of 2014).
In the light of the above discussions and observations,
this Court has no hitch to hold that the complainant has
failed in proving his case beyond the shadow of
reasonable doubts. This court exonerates the accused for
the offence punishable under Section 138 of Negotiable
Instrument Act.
31. On perusal of records, it shows that the
complainant has taken gift deed from the accused in
respect of payment made by her and her husband. This
fact is not mentioned in the complaint and in his affidavit
evidence. The complainant has admitted this fact at the
time of his cross-examination by the accused. Further,
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though the sufficient opportunities were given to the
complainant has not cross-examination and the cross-
examination of accused and his witness taken as nil . It
is settled law that the objects of cross-examination are to
impeach the accuracy, credibility and general value of
the evidence given in chief to shift the facts already stated
by the witness, to detect and expose discrepancies, to
elicit suppressed facts which will support the case of the
cross-examining party. The opposite party has a right to
cross-examine the accused and his witnesses. Cross-
examination is one of the important processes for the
elucidation of the facts of a case. Where a person did
not cross-examine by the opposite party and his witnesses
after adducing the oral evidence under oath, such non
cross-examination would lead to inference that there is no
reason to doubt their veracity. The effect of non cross-
examination is that the statements of witnesses have not
been disputed. In this regard, I rely on the decision
reported in AIR 1963 SC 1906, in Bhoju Mandal
C.C. No. 4514 / 2020
and others Vs. Debnath Bhagat and others the
Hon'ble Supreme Court held as hereunder :-
"The effect of non cross-examination is
that the statement of witness has not
been disputed. Party is required to put
his version to the witness. If no such
questions are put the Court would
presume that the witness account has
been accepted."
In Maroti Bansi Teli - Vs- Radhabai,
AIR 1945 Nagpur 60, the Hon'ble
High Court held as" the matters sworn
to by one party in the pleadings not
challenged either in the pleadingsor
cross-examination by other party must
be accepted as fully established." The
Hon'ble High Court of Calctta in
A.E.G. Carapiet -Vs- A. Y. Derderian
AIR 1961 Calcutta 359 has laid down
that the party is obliged to put his case
in cross-examination of witnesses of
opposite party. The rule of putting one's
version in cross-examination is one of
essential justice and not merely technical
one.
Further in the case of Karnidan Sarda
and Another -Vs- Sailaja Kanta Mitra
C.C. No. 4514 / 2020
AIR 1940 Patna 683, the Hon'ble High
Court of Patna has laid down that it
cannot be too strongly emphasized that
the systm of administration of justice
allows of cross-examination of opposite
party's witnesses for the purpose testing
their evidence, and it must be assumed
that when witnesses were not tested in
that way, their evidence is to be
ordinarily accepted.
In this case, it is pertinent to note that the
complainant has not cross-examined the accused and his
witnesses. No questions were asked from the
complainant in cross-examination about the
circumstances of existence of gift deed. No question was
asked from the complainant to the effect that the
payment was not made by the accused in the form of gift
deed. It is specific contention of the accused is that the
impugned cheque never issued in favour of complainant.
Admittedly, the complainant has not disclosed the fact
that the execution of the gift deed by the accused in her
evidence. The complainant has right to elicited this
important fact from the mouth of the accused in respect
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of circumstances of existence of gift deed, but the
complainant did not cross-examine though the sufficient
opportunity given to her. When the complainant has
not cross examined the accused and his witnesses, their
evidence has value in the eye of law and only remedy left
open to the Court is to accept the version of the accused.
Thus, the complainant failed to contest the existence of
legally enforceable debt.
32. Once the cheque relates to the account of the
accused and he accepts and admits his signature on the
cheque, then initial presumption as contemplated
u/Sec.139 of N.I. Act has to be raised by the court in
favour of the complainant. The presumption referred to
u/Sec.139 of N.I. Act is a mandatory presumption and
not a general presumption. But, the accused is entitled to
rebut the said presumption by probable and acceptable
evidence. The accused has denied the issuance of cheques
in favour of complainant. In the instant case, the
complainant failed to prove that the existence of legally
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enforceable debt. Hence, I answer points No.1 to 3 are
in the 'Negative'.
POINT No. 4 :-
33. During the course of arguments, the defence
counsel submits that the complainant making a false
statement on oath and she has committed an offence
punishable under Section 181 of Indian Penal Code.
Making a false statement on oath is an offence punishable
under Section 181 of the Indian Penal Code. The legal
position is that if the application be with intent to deceive
the Court or one made with an intention defraud, the
same should be contempt, as it would interfere with
administration of justice. Anyone who takes recourse to
fraud, deflects the course of judicial proceedings or if
anything is done with oblique motive, the same
interferes with the administration of justice. Such
persons are required to be properly dealt with, not only
to punish them for wrong done, but also to deter others
from indulging in similar acts which shake the faith of
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people in the system of administration of justice. It is
well settled that a litigant, who attempt to pollute the
stream of justice or who touches the pure fountain of
justice with tainted hands, is not entitled to any relief
interim or final. Suppression of material facts from the
Court of law is actually playing with the Court. In this
case, it is defence of accused that the disputed cheque was
not issued for the discharge of debt. The complainant
received the amount in the form of property by virtue of
gift deed. The complainant filed a false case against the
against the accused in order to make wrongful gain from
him. The complainant has not disclosed the receipt of
money in the form of property by virtue of gift deed.
The complainant has not denied the circumstances under
which the gift deed came into existence. Admittedly, in
the gift deed i.e., Ex. D-3, the accused did not say the
circumstances under which Ex. D-3 was executed. I
have also narrated the circumstances under which the gift
deed was executed, the circumstances which are not
disputed by the complainant. The terms of the gift deed
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that the gifted property was given by the accused to the
complainant in full and final settlement of the loan
amount.
34. The people, who approach the Court for relief ,
are under a contract with the Court that they would state
the whole case fully and fairly to the Court and where
the litigant has broken such faith, the discretion of the
Court cannot be exercised in favour of such a litigant.
The obligation to the Court with clean hands is an
absolute obligation. It is also well settled law that the
Court has frowned upon litigants who, with intent to
deceive and mislead the Court, initiated proceedings
without full disclosure of facts and came to the Court
with unclean hands. A litigant who attempts to pollute
the stream of justice or who touches the pure foundation
of justice with tainted hands is not entitled to any relief.
No litigant should be permitted to misuse the judicial
process by filing frivolous petition. It is also settled
cannon of administration of justice is that no litigant has
C.C. No. 4514 / 2020
a right to unlimited drought upon the Court time and
public money in order to get his affairs settled in the
manner as he wishes. Easy access to justice should not
used as a license to file misconceived an frivolous
petition. The legal maxim 'jure naturae aequum est
neminem cum alterius detrimento et injuria fieri
locupletiorem', which means that it a law of nature that
one should not be enriched by the loss or injury to
another, is the percept for Courts. No litigant can play
'hide and seek' with the Courts or adopt 'pick and
choose'. One, who does not come with facts, cannot hold
a Court with soiled hands. Suppression or concerned of
material facts is impermissible to a litigant or even as a
technique of advocacy. The person seeking equity must
do equity. It is not just the clean hands, but also clean
mind, clean heart and clean objective that are the
fundamental of judicious litigation. In the case of Jasraj
Inder Sing Vs Hemaraj Multanchand, (1997) 2
SCC 155, the Hon'ble Supreme Court held as
hereunder :-
C.C. No. 4514 / 2020
"Truth, like song, is whole, and half truth ca
be noise! Justice is truth, is beauty and the strategy
of healing injustice is discover of the whole truth
and harmonising human relations. Law's Finest
hour is not in meditating on abstraction, but in
being the deliver agent of full fairness."
"Further, in the case of Ved Parkash
Kharanda -Vs- Vimal Bindal, 198 (2013) DLT
555, the Hon'ble High Court held that the the
duty of Court to discover truth. The truth is the
foundation of justice and should be the guiding
star in the entire judicial process.
35. Further in the case of T. Arivndandam -vs-
T. V. Sayapal and Another, (1977) 4 SCC 464, the
supreme court held that "the frivolous ad manifestly
vexatious litigation should be shot sown at the very
threshold. It is further held that the Courts of law are
meant for imparting justice between the parties. One who
comes to the Court, must come with clean hands. We are
constrained to say that more often than ton, process of the
Court is being abused. Property-grabbers, tax evaders,
bank-loan-dodgers and other unscrupulous people from all
walks of life find the Court process a convenient lever to
C.C. No. 4514 / 2020
retain the illegal gains indefinitely. We have no hesitation
to say that a person, who's case is based on falsehood, has
no right to approach the Court. He can be summarily
thrown out at any stage of the litigation. Non-production
and even non-mentioning of the release deed at the trial is
tantamount to laying fraud on the Court. A litigant, who
approaches the Court, is bound to produce all the
documents executed by him which are relevant to the
litigation. If he withholds a vital document in order to gain
advantage on the other side then he would be guilty of
playing fraud on the Court as well as on the opposite
party."
36. Admittedly, the complainant has not mentioned
the gift deed in her evidence alleged to be executed by the
accused in her favour in the complaint. She nowhere state
that the accused has executed the gift deed in the
complaint and also in the notice. Admittedly, the
complainant has not produced the gift deed alleged to be
executed by the accused in her favour. The complainant
C.C. No. 4514 / 2020
did not approach the Court with clean hands. Her conduct
was not that of a prudent man. It is not the case of the
complainant that the accused has executed the gift deed on
account of love and affection and not with an intention to
repay the amount in the form of property by virtue of gift
deed. In the present case, the burden of proof shifted to
the complainant to prove the existence of legally
enforceable debt when the accused successfully rebutted the
statutory presumption under Sections 118 (a) and 139 of
the Negotiable Instrument Act. Therefore, it is for the
complainant to prove the guilt of the accused beyond
reasonable doubt by leading cogent evidence on record.
However, the complainant has failed to prove the existence
of legally enforceable debt. Although, the accused could
not prove his defence, but he has succeeded in rebutting
the presumption under Section 139 of the Act by
disproving the case of the complainant. In this case, the
complainant failed to prove the existence of legally
enforceable debt. This Court finds the version of the
complainant improbable and difficult to believe. The
C.C. No. 4514 / 2020
complainant failed to establish that there was a legal debt or
liability standing on the part of the accused towards the
complainant. The conduct of the complainant reveals that
she knowing herself that the claim is false and the purpose
of the proceeding is only to extract some money and other
material benefits from the accused. The material record
reveals that the the claim made by the complainant is
false. The complainant is not entitled any relief even her
part of claim is false. Further, the complainant has not
given explanation for non discloser of execution of gift deed
by the accused in respect of the repayment of existence of
debt in the complaint as well as in her affidavit.
Considering the facts of the present case I am of the
opinion that the complainant has come to this Court with a
false case. Section 209 of the Indian Penal Code, 1860
provides that when a person comes to Court with a false
case, such person is liable to be punished by imprisonment
for a period up to two years in addition to fine. It is also
settled law that no litigant should be permitted to misuse
the judicial process by filing frivolous petitions. No litigant
C.C. No. 4514 / 2020
has a right to unlimited drought upon the Court time and
public a money in order to get his affairs settled in the
manner as he wises. Easy access to justice should not be
used as a license to file misconceived and frivolous petition.
37. It is a solemn duty of the Courts, not merely
conclude and leave the case the moment suspicious are
created, It is onerous duty of the Court, within the
permissible limit to find out the truth. It means, on one
hand no innocent man should be punished, but on the
other hand to see no person committing an offence should
get scot free. In the case of A. Shanmugam -Vs- Ariya
Kshatriya, [2012] 6 SCC 439, the Hon'ble Supreme
Court held that the entire journey of a judge is to
discern the truth from the pleadings, documents and
arguments of the parties. Truth is the basis of justice
delivery system. The Hon'ble Supreme Court laid down
the following principles : -
It is the bounden duty of the Court to
uphold the truth and do justice.
C.C. No. 4514 / 2020
Every litigant is expected to state truth
before the law Court whether it is
pleadings, affidavits or evidence.
Dishonest and unscrupulous litigants
have no place in law courts.
The ultimate object of the judicial
proceedings is to discern the truth and
do justice. It is imperative that pleadings
and all other presentations before the
Court should be truthful
Once the Court discovers falsehood,
concealment, distortion, obstruction or
confusion in pleadings and documents,
the court should in addition to full
restitution impose appropriate costs. The
court must ensure that there is no
incentive for wrong does'n the temple of
justice. Truth is the foundation of
justice and it has to be the common
endeavor of all to uphold the truth and
no one should be permitted to pollute the
stream of justice.
It is the bounden obligation of the Court
to neutralize any unjust and or
understand benefit or advantage obtained
by abusing the judicial process.
C.C. No. 4514 / 2020
In this case, it is pertinent to note that the complainant
has not produced the gift deed and she has also not
disclosed the execution of the gift deed. The complainant
has not made any attempt to give any explanation in
respect of non-disclosure of gift deed in the complaint as
well as in her affidavit. It is also well settled law that the
litigant, who approaches the Court, is bound to produce
all the documents executed by him and in his favour
which are relevant to the litigation. If he withholds a vital
document in order to gain advantage on the other side then
he would be guilty of playing fraud on the Court as well as
on the opposite party. In the case of S. P. Chengalvarya
Naidu (dead ) by Lrs -Vs- Jagantath, AIR 1994 SC 853,
the respondent instituted a suit for partition of an
immovable property without disclosing that he had already
relinquished all his right in respect of the subject property
by executing a registered release deed. The appellant
obtained a preliminary decree. At the stage of hearing of
the application for final decree, the appellant became aware
of the release deed and challenged the preliminary decree
C.C. No. 4514 / 2020
on the ground of having been obtained by the respondent
by playing fraud on the Court. The Trial Court accepted
the appellant's contention and dismissed the respondent's
application for final decree. The High Court reversed the
findings of the Trail Court against which appellant
approached the Hon'ble Supreme Court. The Hon'ble
Supreme Court allowed the appeal and held that the
respondent played fraud upon the court by withholding the
release deed executed by him. The Hon'ble Supreme Court
held that a person, who's case is based on falsehood, has
no right to approach the Court and he ca thrown out at
any stage of the litigation Further, in the case of Mohan
Sing -Vs- State of M. P., (1999) 2 SCC 428 the
Hon'ble Supreme Court held as hereunder :-
"effort should be made to find the truth;
this is the very object for which courts are
created. To search it out, the Court has to
remove chaf from the grain. It has to
disperse the suspicious, cloud and dust out
the smear of dust as all these things clog the
very truth. So long chaff, cloud and dust
remains, the criminals are clothed with this
protective layer to receive the benefit of
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doubt. So, it is a solemn duty of the
Courts, not to merely conclude and leave
the case the moment suspicious are created.
It is onerous duty of the Court, within
permissible limit to find out the truth.
In the case of Bhimnna -Vs- State of
Karnataka, (2012) 9 SCC 650, the Hon'ble
Supreme Court held that the Court must
endeavor to find the truth. There would be
failure of justice not only by unjust
conviction but also by acquittal of the guilty,
as a result of unjust failure to produce
requisite evidence. Of course, the rights of
accused have to be kept in mind and
safeguard but they should not be
overemphasised to the extent of forgetting
that the victims also have right. Further,
in the case of Mohanlal Shamji Soni -Vs-
Union of India, 1991 supp (1) SCC 271,
the Hon'ble Supreme Court held that the
presiding officer of Court should not simply
sit as a mere umpire at a contest between
two parties and declare at the end of the
combat who has won and and who has lost
and that there is a legal duty of his own,
independent of the parties, to take an active
role in the proceedings in finding the truth
and administering justice.
C.C. No. 4514 / 2020
38. In this case, the accused makes a claim before a
Court of justice for the purpose of Section 209 when he
seeks certain relief or remedies from the Court and a claim
for relief necessarily impasses the ground for obtaining the
relief. The offence is complete the moment a false claim is
filed in Court. Admittedly, the complainant came with a
false claim that the impugned cheque was issued for the
discharge of debt. The complainant has suppressed the
execution of gift deed by the accused in respect of payment
of amount due. The complainant has not disclosed the fact
that the accused repaid the loan amount in the form of
transfer of property by the accused by virtue of gift deed.
Considering the facts of the present case, I am of the
opinion that the complainant has come to this Court with a
false claim. Section 209 of the Indian Penal Code, 1860
provides that when a person comes to Court with a false
case, such person is liable to be punished. I therefore issue
notice to the complainant under Section 340 of the Code of
Criminal Procedure, 1973 to show cause as to why a
criminal case be not lodged against her by the Registrar of
C.C. No. 4514 / 2020
this Court or by the accused in terms of permission to be
granted by this Court, under Section 209 IPC.
39. Section 138 creates a deeming offence. The
proviso prescribe stipulations to safeguard the drawer of
the cheque by providing them the opportunity of
responding to the notice and an opportunity to repay the
cheque amount. The condition stipulated in the provisos
need to be fulfilled in addition to the ingredients in the
main provision of Section 138 of the Act. The offence
under section 138 arises only when a cheque that represents
a part or whole of the legally enforceable debt at the time
of encashment is returned by the bank unpaid. Since the
cheque did not represent the legally enforceable debt at the
time of encashment, the offence under Section 138 is not
made out. On a totality of the facts and circumstances and
based on the evidence on record, the presumption under
Section 139 of the Act stood rebutted and that the defence
stood probabalised. From the evidence available on record
reveals that the complainant has secured the gift deed for
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the repayment of her money. The loan is repaid in the
form of property by virtue of gift deed within due date
that the cheque would mature for presentation. Neither
the complainant nor accused challenged the validity of
gift deed. Hence, it can be said that the gift deed is valid
one and complainant has secured her money in the form
of property from the accused by virtue of gift deed. It is
also not the case of the complainant that the impugned
cheque was issued on the condition that the gift deed could
be revoked on the payments of debt. Such being case, then
it is difficult to accept the version of complainant that the
accused has drawn the cheque for the discharge of debt.
40. Section 139 of N.I. Act creates presumption that the
cheque received in the nature referred to Section 138 of
N.I. Act is always issued in discharge of debt or other
liability. For a successful prosecution of offence under
section 138 of the Act, complainant must allege and prove
that the cheque was drawn or executed by the accused. In
the absence of proof of existence of debt, presumption
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cannot be drawn in favour of the complainant. Mere
admission of signatures in the cheque would not led to
presumption under Section 139 that the cheque was
received for discharge of debt or liability. Admittedly, the
complainant had not mentioned anything about the accused
having executed the gift deed in her complaint. Nothing
was stated by the complainant in regard to the
circumstances of issuance of cheques by the accused in her
favour. The non-disclosure of the facts pertaining to the
execution of gift deed by the accused in the present
proceedings was a material contradiction which indicated
that there was a doubt in regard to the transaction. In this
case, the accused had a probable defence and complainant
failed to prove and establish her case beyond all reasonable
doubt. The complainant has suppressed the material fact
before this Court in order to grab the money from the
accused. Hence, the benefit of doubt given to the accused.
In view of my findings to the above point, I proceed to pass
the following :
C.C. No. 4514 / 2020
ORDER
The accused is not found guilty of the offence punishable under Section 138 of Negotiable Instruments Act.
Hence, the accused is acquitted acting Under Section 255(1) of Cr.P.C of the charges leveled against her for the offence punishable under Section 138 of Negotiable Instruments Act.
Bail bond of accused is canceled and surety stands discharged.
Issue notice to the complainant under Section 340 of the Code of Criminal Procedure, 1973 to show cause as to why criminal case be not lodged against her by the Registrar of this Court.
(Dictated to the Stenographer, transcribed and typed on Lap-top, then corrected by me, Print out taken, signed and then pronounced by me in the open court on this the 15th day of April 2023) (K. LAKSHMI) IV Addl. SCJ & ACMM., Bengaluru.
C.C. No. 4514 / 2020 ANNEXURE List of witnesses Examined for Prosecution:
PW.1 : Smt. Suma List of documents marked for prosecution :
Exp.1 : Cheque Exp.1(a) : Signature of accused Exp.2 : Banker's endorsement Exp.3&4 : Office copy of Legal notices Exp.5&6 : Postal receipts Exp.7 : Postal Track Exp.8 : Account Statement Exp.9 : Unserved Postal Cover Exp.10 : Bank deposit challen List of witnesses examined for accused :
DW-1 : M. C. Nataraj
DW-2 : Prakash. K
DW-3 : Sachin T. L
List of documents marked for accused :
ExD.1 : Copy of legal notice ExD.2 : Copy of legal notice C.C. No. 4514 / 2020 ExD.3 : Copy of gift-deed ExD.4&5 : Photos ExD.6 : Copy of document in O. S. No.209/2021 ExD.7 : Copy of gift-deed ExD.8 : Copy of documents in CC. No. 17405/2020 ExD.9-16 : Medical Reports along with prescriptions ExD.17 : Medical bills ExD.18 : Medical prescription ExD.19 : Authorization letter ExD.20 : letter dtd: 12.01.2023 ExD.21 : C/c of loan application ExD.22 : C/c of Memorandum of deposit of title-deeds ExD.23 : C/c of promissory note ExD.24 : Bank Statement ExD.25 : C/c of letter dtd: 13.01.2020 ExD.26 : C/c of voucher ExD.27 : Bank Statement C.C. No. 4514 / 2020 ExD.28 : C/c of Sanction letter ExD.29&30 : Account extracts ExD.31 : C/c of Valuation of property ExD.32 : C/c of Report letter dtd: 09.01.2017 ExD.33 : C/c of Clearance Certificate ExD.34 : Copy of document dtd: 19.02.2019 ExD.35 : Letter dtd: 31.12.2020 ExD.36 : C/c of Loan Agreement ExD.37 : Loan Application ExD.38 : C/c of agreement ExD.39 : C/c of promissory note ExD.40-42 : Payment Receipts ExD.43 : C/c of Memorandum of deposit of title-deed ExD.44 : Copy of Form-15 ExD.45 : C/c of gift-deed ExD.46 : C/c of sale-deed ExD.47 : C/c of Partition-deed ExD.48 : Copy of Form-15 ExD.49 : Copy of Affidavit C.C. No. 4514 / 2020 ExD.50 : C/c of gift-deed dtd: 27.11.2015 ExD.51&52 : C/c of consideration receipt ExD.53 : C/c of construction license ExD.54 : C/c of sanctioned sketch ExD.55-59 : C/c of Revenue Registers ExD.60 : C/c of sale-deed ExD.61 : C/c of transfer of rights order (K. LAKSHMI) IV Addl. SCJ & ACMM., Bengaluru.
C.C. No. 4514 / 2020 Dt: 03.04.2023 As per Notification dated 31.03.2023 3rd April declared as holiday. Hence case is adjourned on 05.04.2023.
IV ASCJ & ACMM Dt: 05.04.2023 Due to rush of work Judgment not ready.
For Judgment 15.04.2023.
IV ASCJ & ACMM Dt: 15.04.2023 C-
A-
For Judgment (Order pronounced in open court vide separate judgment) ORDER The accused is not found guilty of the offence punishable under Section 138 of Negotiable Instruments Act.
Hence, the accused is acquitted acting Under Section 255(1) of Cr.P.C of the charges leveled against her for the offence C.C. No. 4514 / 2020 punishable under Section 138 of Negotiable Instruments Act.
Bail bond of accused is canceled and surety stands discharged.
Issue notice to the complainant under Section 340 of the Code of Criminal Procedure, 1973 to show cause as to why criminal case be not lodged against her by the Registrar of this Court.
(K. LAKSHMI) IV Addl. SCJ & ACMM, Bengaluru.
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