Bangalore District Court
And She Issued Cheque In Question As ... vs That Complainant Was Not Having ... on 3 March, 2022
1 CC.No.25119/2018
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 03rd Day of March2022
Present: Lokesh Dhanapal Havale. B.A.L.L.B.,
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.25119/2018
2.Name of the Complainant: Smt.B.Bharathi,
W/o.late G.K.Balaraj,
Aged about 54 years,
R/at 342, 1 Floor, 7th Cross,
2nd Main, Srinivasa Nagar,
BSK 1 Stage,
Bangalore.
3.Name of the accused: Sumithra.
W/o.Narayanaswamy,
Aged about 45 years,
R/at 617,
Near Bhavi Kempanna Layout,
Buddadahalli Main Road,
Near Akshay Residency,
Hebbal HA. Farm Post,
Bangalore.
And also at
Sumithra,
W/o.Narayanaswamy,
Aged about 45 years,
Ashoka Tru
I Ecoloby and the Environment
Royal Enclave, Mestripalya,
Bangalore64.
2 CC.No.25119/2018
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2) Cr.P.C., accused is
Acquitted..
7.Date of final Order 03.03.2022.
***
This complaint is filed U/Sec.200 of Cr.P.C. against the accused
for the offence punishable U/Sec.138 of the Negotiable Instruments
Act, 1881.
2. The facts of the complaint in brief are as under:
The complainant and the accused are well known to each other
from considerable time as friends. The accused borrowed a sum of
Rs.15,00,000/ on 30.07.2016 for financial commitments and amount
was paid to the accused by drawing Rs.12,80,000/ from Union Bank
Devanahalli branch on 27.07.2016 and Rs.2,20,000/ was paid by way
of cash on 30.07.2016 at her residence at 6.00 pm. The accused
assured her to repay it within 2 years. She executed On Demand
Promissory Note in favour of the complainant. After lapse of stipulated
period the complainant approached the accused for repayment of hand
loan but the accused keep on postponing the payment. The accused
finally issued a cheque bearing No.451433 dated 13.06.2018 for a sum
of Rs.15,00,000/ drawn on Canara Bank, Hebbal Branch, Bengaluru in
favour of the complainant. On its presentation, the cheque returned
dishonored with an endorsement of "Payment Stopped By Drawer" on
19.06.2018. She issued the legal notice to the accused on 06.07.2018
3 CC.No.25119/2018
demanding the repayment of hand loan. The notice was duly served on
the accused. After receiving the notice the accused neither replied nor
paid the loan amount within 15 days. Hence prayed to punish the
accused and compensate the complainant.
3. After the institution of the complaint, cognizance was
taken and the case was registered as PCR No.11526/2018. The sworn
statement of the complainant was recorded and on the basis of sworn
statement and other materials on hand, the criminal case was
registered against the accused and summons was issued to her. In
response to the service of summons the accused appeared through her
learned counsel and got enlarged on bail. The prosecution papers
supplied to the accused and the substance of accusation for the offence
punishable U/s.138 of Negotiable Instruments Act was read over to the
accused. She pleaded not guilty and claimed to be tried.
4. During trial the complainant examined herself as PW1
and got marked Ex.P.1 to P.7. The statement of the accused U/s. 313
of Cr.P.C. was recorded. The accused did not lead defence evidence.
5. I have heard the arguments and perused the entire
materials. The following points would arise for my consideration.
1. Whether the complainant proves that the accused
issued a cheque bearing No.451433 dated
13.06.2018 for a sum of Rs.15,00,000/ drawn
on Canara Bank, Hebbal Branch, Bengaluru in
favour of the complainant towards the
discharge of legally enforceable debt/liability
and on its presentation for encashment, it was
dishonored with an endorsement "Payment
4 CC.No.25119/2018
Stopped By Drawer" and the accused has not
paid the amount even after 15 days from the
date of service of notice on her and thereby
accused committed an offence punishable
U/Sec.138 of N.I. Act, 1881 ?
2. Whether the accused rebuts the
presumption U/s.139 of N.I.Act?
3. What order?
6. My answers to the above points are as under.
Point No.1 : In the Negative
Point No.2 : In the Affirmative
Point No.3 : As per final order for the following;
REASONS
7. Point No.1 & 2: The points are taken together for discussion
to avoid repetition of facts and evidence. At this juncture, it is necessary
to go through the provisions of N.I.Act before proceeding further. The
provisions under Section 118(a) and 139 of the Act., 1881 are
extracted and they reads thus;
"118. Presumptions as to negotiable
instruments. - 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,
indorsed, negotiated or transferred, was
5 CC.No.25119/2018
accepted, indorsed, negotiated or
transferred for consideration.
(b) as to date: that every Negotiable
Instrument bearing date was made or drawn
on such date;
"139. Presumption in favour of holder.
It shall be presumed, unless the
contrary is proved, that the holder of a
cheque received the cheque of the nature
referred to in section 138 for the discharge,
in whole or in part, of any debt or other
liability."
8. On plain perusal of the provisions under Section 118(a)
and 139 of the N.I.Act., as extracted herein above, it can be seen that
initially the presumptions constituted under these two provisions
favour the complainant. However, it is open to an accused to raise a
defence to rebut the statutory presumptions. An accused can raise a
defence, wherein the existence of legally enforceable debt or liability
can be contested.
9. It is also well established that an accused for discharging the
burden of proof placed upon him under a statute need not examine
himself. He may discharge his burden on the basis of the materials
already brought on record. An accused has constitutional rights to
maintain silence. Standard of proof on part of the accused and that of
the prosecution in a Criminal case is different. The prosecution must
prove the guilt of an accused beyond all reasonable doubts, the
6 CC.No.25119/2018
standard of proof so as to prove a defence on the part of an accused is
"Preponderance of probabilities".
10. Under the light of above extracted provisions of the Act, I
have perused the oral and documentary evidence on record. In order to
prove her case the complainant examined herself as PW.1 and got
marked Ex.P.1 to P.7. Ex.P.1 is the cheque bearing No.451433 dated
13.06.2018 for a sum of Rs.15,00,000/ drawn on Canara Bank, Hebbal
Branch, Bengaluru in favour of the complainant and Ex.P.1(a) is the
signature of the accused on the cheque. Ex.P.2 is the Bank endorsement
dated 08.06.2018 with shara 'Funds Insufficient'. Ex.P.3 is the office
copy of the statutory notice dated 06.07.2018. Ex.P.4 and P.5 are the
postal receipts for having sent the legal notice to the accused. Ex.P.6 is
the postal envelope, which was returned unserved with shara 'door
locked' on 25.07.2018 and Ex.P.7 postal acknowledgement for having
served the legal notice on the accused on 11.07.2018.
11. I have perused the exhibits on which the complainant has
placed his reliance. On plain perusal of the exhibits, it is clear that the
cheque at Ex.P.1 bearing cheque bearing No.451433 dated 13.06.2018
for a sum of Rs.15,00,000/ drawn on Canara Bank, Hebbal Branch,
Bengaluru in favour of the complainant was presented through the
Bank within its validity for encashment and the Bank issued
endorsement as per Ex.P.2 on 19.06.2018 with a shara "Payment
Stopped By Drawer". The Hon'ble Supreme Court of India has in the
case of Laxmi Dychem v. State of Gujarat and Ors. reported in (2012)
13 SCC 375 held that the expression "amount of money...........is
insufficient" appearing in Section 138, N.I. Act is a genus and dishonour
for reasons such as "account closed", "payment stopped", "referred to the
7 CC.No.25119/2018
drawer" are only species of that genus and would attract penal liability
under section 138, N.I. Act. Further in the case of MMTC Ltd. v. Medchl
Chemicals and Pharma (P) Ltd. reported in (2002) 1 SCC 234, the
Hon'ble Supreme Court observed that a complaint under Section 138
can be made not only when the cheque is dishonoured for reason of funds
being insufficient to honour the cheque or if the amount of the cheque
exceeds the amount in the account, but also where the drawer of the
cheque instructs its bank to "stop payment". If the accused shows that in
his account there were sufficient funds to clear the amount of the cheque
at the time of presentation of the cheque and that the stoppayment notice
had been issued because of other valid causes, then offence under Section
138 would not be made out. In the case on hand the accused did not
adduce any evidence to show that she had sufficient funds as on the
date of the presentation fo the cheque. The complainant issued
statutory notice dated 06.07.2018 as per Ex.P.3 within time from the
date of receipt of Bank Memo. The notice was served on the accused
on 11.07.2018.
12. The counsel for the accused relied on the Judgment of
Hon'ble Supreme Court of India in the case of Suman Sethi Vs.Ajay K
Churiwal reported in 2000 Crl.L.J. 1391, wherein it was observed at
para No.8 and 10 as under:
8. It is well settled principle of law that the notice has
to be read as a whole. In the notice demand has to be made
for the said amount i.e., cheque amount if no such demand
is made, the notice no doubt would fall short of its legal
requirement. Where in addition to "said amount" there is
8 CC.No.25119/2018
also a claim by way of interest, cost etc. whether the notice
is bad would depend on the language of the notice. If in a
notice while giving up break up of the claim the cheque
amount, interest, damages etc. are separately specified,
other such claims for interest, cost etc. would be superfluous
and these additional claims would be severable and will not
invalidate the notice. If, however, in the notice an omnibus
demand is made without specifying what was due under the
dishonoured cheque, notice might well fail to meet the legal
requirement and may be regarded as bad.
10. In Section 138 legislature clearly stated that for
the dishonoured cheque the drawer shall be liable for
conviction if the demand is not made within 15 days of the
receipt of notice but this is without prejudice to any other
provision of the Act. If the cheque amount is paid within the
above period or before the complaint is filed the legal
liability under Section 138 will cease and for recovery of
other demands as compensation, costs, interest etc., a civil
proceeding will lie. Therefore, if in a notice any other sum is
indicated in addition to the "said amount" the notice cannot
be faulted, as stated above.
The counsel for the accused also relied on the Judgment of
Hon'ble Supreme Court of India in the case of K.R.Indira
Vs.Dr.G.Adhinarayana reported AIR 2003 SC 4689, wherein it was
observed at para No.11 as under:
9 CC.No.25119/2018
11. . . . However, according to the respondent, the
notice in question is not separable in that way and that
there was no specific demand made for payment of the
amount covered by the cheque. We have perused the contents
of the notice. Significantly, not only the cheque amounts
were different from the alleged loan amounts but the
demand was made not of the cheque amounts but only the
loan amount as though it is a demand for loan amount and
not the demand for payment of the cheque amount; nor
could it be said that it was a demand for payment of cheque
amount and in addition thereto made further demands as
well. What is necessary is making of demand for the amount
covered by the bounced cheque which is conspicuously absent
in the notice issued in this case. The notice in question is
imperfect in this case not because it had any further or
additional claims as well but it did not specifically contain
any demand for the cheque amount, the non compliance
with such a demand only being the incriminating
circumstance which expose the drawer for being proceeded
against U/s.138 of the Act.
The counsel for the accused also relied on the Judgment of
Hon'ble Supreme Court of India in the case of Rahul Builders Vs.
Arihant Fertilizers and Chemicals and Another reported (2008) 2 SCC
321 wherein it was observed at para No.10 as under:
10. Service of a notice, it is trite, is imperative in
character for maintaining a complaint. It creates a legal
10 CC.No.25119/2018
fiction. Operation of Section 138 of the Act is limited by the
proviso. When the proviso applies, the main section would
not. Unless a notice is served in conformity with Proviso
(b)appended to Section 138 of the Act, the complaint
petition would not be maintainable. The Parliament while
enacting the said provision consciously imposed certain
conditions. One of the conditions was service of a notice
making demand of the payment of the amount of cheque as
is evident from the use of the phraseology "payment of the
said amount of money". Such a notice has to be issued
within a period of 30 days from the date of receipt of
information from the bank in regard to the return of the
cheque as unpaid. The statute envisages application of the
penal provisions. A penal provision should be construed
strictly; the condition precedent wherefor is service of notice.
It is one thing to say that the demand may not only
represent the unpaid amount under cheque but also other
incidental expenses like costs and interests, but the same
would not mean that the notice would be vague and capable
of two interpretations. An omnibus notice without
specifying as to what was the amount due under the
dishonoured cheque would not subserve the requirement of
law. Respondent No. 1 was not called upon to pay the
amount which was payable under the cheque issued by it.
The amount which it was called upon to pay was the
outstanding amounts of bills, i. e. , Rs. 8,72,409/ . The
notice was to respond to the said demand. Pursuant thereto,
11 CC.No.25119/2018
it was to offer the entire sum of Rs. 8,72,409/ . No demand
was made upon it to pay the said sum of Rs. 1,00,000/
which was tendered to the complainant by cheque dated 30.
04. 2000. What was, therefore, demanded was the entire
sum and not a part of it.
On perusal of the above decisions, it is clear that the complainant
has to demand for the cheque amount in the legal notice. The notice at
Ex.P.3, if read as a whole as observed in the aforesaid decisions, clearly
shows that the loan amount borrowed was Rs.15,00,000/, the cheque
was issued for Rs.15,00,000/ and the demand was also made for
Rs.15,00,000/. However it appears that while drafting the notice, due
to typographical error, it is mentioned in the last paragraph of the
notice as "I hereby call upon you (accused) to repay the above said
interest amount of Rs.15,00,000/" instead of "I hereby call upon you
(accused) to repay the above said loan amount of Rs.15,00,000/".
Therefore the notice is not bad and it is in accordance with the
provision U/s.138 of N.I.Act. The last paragraph of the notice at ExP.3
could not be read in isolation as argued by the counsel for the accused.
Therefore the argument that the notice is bad in law is not acceptable.
The complaint was filed on 27.08.2018, which is within limitation.
Therefore, the documents on record clearly show that the complainant
has complied the ingredients of Section 138(a) to (c) of the N.I.Act.
Therefore the presumptions U/s.118 and 139 of the N.I.Act arise in
favour of the complainant. The presumptions are rebuttable and the
burden is on the accused to rebut the presumptions.
12 CC.No.25119/2018
13. The accused did not lead the defence evidence but she
need not lead defence evidence, she could very well rely on the
evidence and cross examination of the complainant to prove her
defence. It is the defence of the accused as set up in the cross
examination of PW.1 that she borrowed loan of Rs.5,00,000/ from the
complainant and she issued cheque in question as security for the said
loan. The said loan amount of Rs.5,00,000/ was repaid but the
complainant did not return the security cheque. The cheque was
written for Rs.5,00,000/ and by adding 1 it was made as
Rs.15,00,000/. There was no transaction between herself and
complainant as alleged in the complaint. It is also the defence of the
accused that complainant was not having financial capacity to give the
amount as alleged. However the accused did not lead any evidence to
prove her defence. The counsel for the accused made suggestions in
respect of the defence of the accused but nothing worth was elicited to
prove the same. The complainant denied all the suggestions in respect
of the defence. Therefore the accused failed to prove her defence by
adducing cogent evidence.
14. The accused also raised the defence of material alteration
in the cheque at Ex.P.1. The accused stated that the amount in the
cheque has been altered by adding 1 and the amount of Rs.5,00,000/
has been made as Rs.15,00,000/. However on perusal of ExP.1, it is
clear that there is no such material alteration. The amount appears to
be written in same ink at the the same time. Further it is the defence of
the accused that she issued the cheque as security for the loan of
Rs.5,00,000/ taken by her. She also claimed that she repaid the
amount but the complainant did not return the cheque. However no
13 CC.No.25119/2018
details were specified as to when such loan was taken, when it was
repaid and why she has no taken any action against the complainant
for misuse of cheque etc. There is no evidence on record to substantiate
the defence of the accused. Therefore the defence raised by the accused
as to the material alteration is not tenable.
15. The accused need not lead defence evidence and she can
rebut the presumption relying on the evidence of the complainant. On
perusal of the complaint averments and crossexamination of PW1, it
is clear that there is variance in the averments in the complaint and
evidence of PW.1. It is averred in the complaint that accused is her
friend. However in her evidence, she stated that the accused is her
relative. Therefore it is not believable and it is not averred in the
complaint that they are relatives.
16. It is averred in the complaint that she gave the loan of
Rs.15,00,000/ to the accused on 30.07.2016 for her financial
commitments. However she stated in her evidence that the loan was
given to the accused for starting another P.G. The accused had one P.G
and she intended to start another P.G. She stated that she did not
mention about the same in the notice, complaint or the affidavit
evidence. It is averred in the complaint that the accused executed On
Demand Promissory Note at the time of borrowing the loan. It is also
elicited in the crossexamination that the accused executed promissory
note in her favour at the time of borrowing the loan. She stated that
she had the Promissory Note and she can produce it. However it was
not produced. It is averred in the complaint that the accused was given
the loan by way of cash. She withdrew an amount of Rs.12,80,000/ on
14 CC.No.25119/2018
27.07.2016 and she had Rs.2,20,000/ with her in home and she gave
Rs.15,00,000/ by way of cash to the accused on 30.07.2016. She
stated the same thing in her evidence also. She stated that she has the
documents and she can produce them. However on perusal of the case
file, it is found that she did not produce the bank statement to show
that she withdrew the amount of Rs.12,80,000/ on 27.07.2016. The
complainant withheld the documents and inference can be drawn that
if the said documents are produced, they would not be favourable to
the complainant. Further the fact of withdrawal of amount of
Rs.12,80,000/ from the Bank and lending of the same to the accused is
not mentioned in the notice. The counsel for the accused argued that
the as per the notice the accused approached the complainant for loan
in October 2016 and loan was alleged to have been lent in July 2016
and it is not believable. It is pertinent to note that the transaction is
pertaining to the month of July 2016. The complainant clearly
mentioned the date of loan as 30.07.2016 in the notice, complaint and
the affidavit evidence. However due to the typographical error and
there being another connected case in CC.No.25120/2018, wherein the
complainant filed cheque bounce case for Rs.10,00,000/ against the
daughter of the accused, and the transaction in the said case is being
dated 27.10.2016, the date of borrowing of loan at para No.2 in the
notice at Ex.P.3 is mentioned as 27.10.2016. It is mere typographical
error while drafting the notice and it could not be considered that the
accused approached complainant for loan on 27.10.2016 and the loan
was lent on 30.07.2016 and therefore the case of the complainant is
not believable as argued by the counsel for the accused. Apart from
that the complainant clearly stated in her evidence about the date of
loan and the mode of payment. However no documents were produced
15 CC.No.25119/2018
in support of financial capacity and there are inconsistencies in her
evidence. This creates doubt as to whether the transaction took place as
alleged by the complainant.
17. The accused challenged the financial capacity of the
complainant to lend the huge amount.
The Hon'ble Supreme Court of India in the case of Rangappa Vs.
Mohan reported in 2011 (11) SCC 441 held that the presumption
mandated by Section 139 of N.I.Act does indeed include the existence of
legally enforceable debt or liability. It is rebuttable presumption and it is
open to the accused to raise a defence wherein the existence of legally
enforceable debt or liability can be contested. However there can be no
doubt that there is an initial presumption which favours the complainant.
Section 139 of the Act is an example of reverse onus clause that has been
included in furtherance of the legislative objective of improving the
credibility of negotiable instruments. Therefore the as per the
presumption U/s139 of N.I.Act, if the cheque and signature are
admitted then it shall be presumed that there is legally enforceable
debt.
The Hon'ble Supreme Court of India in the case of Rohit Bhai
Jeevanlal Patel Vs. State of Gujarath and another reported in
(2019) 18 SCC 106 observed at para No.14 and 17 as under:
14. So far the question of existence of basic ingredients for
drawing of presumption under Sections 118 and 139 the NI
Act is concerned, apparent it is that the accusedappellant
16 CC.No.25119/2018
could not deny his signature on the cheques in question that
had been drawn in favour of the complainant on a bank
account maintained by the accused for a sum of Rs. 3 lakhs
each. The said cheques were presented to the Bank
concerned within the period of their validity and were
returned unpaid for the reason of either the balance being
insufficient or the account being closed. All the basic
ingredients of Section 138 as also of Sections 118 and 139
are apparent on the face of the record. The Trial Court had
also consciously taken note of these facts and had drawn the
requisite presumption. Therefore, it is required to be
presumed that the cheques in question were drawn for
consideration and the holder of the cheques i.e., the
complainant received the same in discharge of an existing
debt. The onus, therefore, shifts on the accusedappellant to
establish a probable defence so as to rebut such a
presumption.
17. In the case at hand, even after purportedly drawing the
presumption under Section 139 of the NI Act, the Trial
Court proceeded to question the want of evidence on the
part of the complainant as regards the source of funds for
advancing loan to the accused and want of examination of
relevant witnesses who allegedly extended him money for
advancing it to the accused. This approach of the Trial
Court had been at variance with the principles of
presumption in law. After such presumption, the onus
shifted to the accused and unless the accused had discharged
17 CC.No.25119/2018
the onus by bringing on record such facts and circumstances
as to show the preponderance of probabilities tilting in his
favour, any doubt on the complainant's case could not have
been raised for want of evidence regarding the source of
funds for advancing loan to the accusedappellant. The
aspect relevant for consideration had been as to whether the
accusedappellant has brought on record such
facts/material/circumstances which could be of a
reasonably probable defence.
It is clear from the aforesaid decision that once the presumption
is raised U/s 139 of N.I.Act, the source of income of the complainant
could not be questioned unless the accused discharges the onus by
bringing on record such facts and circumstances as to show the
preponderance of probabilities tilting in his favour.
The Hon'ble Supreme Court of India in the case of Rangappa Vs.
Mohan reported in 2011 (11) SCC 441 also held that in the absence of
compelling justifications, reverse onus clauses usually imposed an
evidentiary burden and not persuasive burden. Keeping this in view, it is
settled position that when an accused has to rebut the presumption
U/s.139, the standard of proof for doing so is that of preponderance of
probabilities. Therefore, if the accused is able to raise probable defence
which creates the doubt about existence of legally enforceable debt or
liability, the prosecution can fail. The accused can rely on the material
submitted by the complainant in order to raise such defence and it is
conceivable that in some cases the accused may not need to adduce
evidence of his/her own. Therefore though the accused failed to prove
18 CC.No.25119/2018
his specific defence, he can still rely on the evidence of the complainant
to rebut the presumptions by pointing out the infirmities in the case of
the complainant, which creates doubt on the case of the complainant.
Further the Hon'ble Supreme Court of India in the case of
Basalingappa Vs. Mudibasappa reported in AIR 2019 SC 1983 held
that the non mentioning of the date of issuance of cheque by the
complainant in the complaint as well as in the evidence and the
complainant not satisfactorily explaining the contradiction in the
complaint visavis his examination in chief and crossexamination and
his failure to prove the financial capacity to advance the substantial
amount, the accused entitled for acquittal. It was also held that whereas
prosecution must prove the guilt of an accused beyond all reasonable
doubt, the standard of proof so as to prove a defence on the part of an
accused is "preponderance of probabilities". 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." It was also observed by the Hon'ble Supreme Court that "during
his crossexamination, when financial capacity to pay Rs.6,00,000/ to
the accused was questioned, there was no satisfactory reply given by the
complainant. The evidence on record, thus, is a probable defence on behalf
of the accused, which shifted the burden on the complainant to prove his
financial capacity and other facts". Therefore it is clear from the
aforesaid judgment that if the financial capacity is specifically
questioned, the complainant has to prove his financial capacity.
18. The counsel for the accused questioned PW.1 in respect of
her source of funds to lend the amount. It was elicited in the cross
examination of PW1 that she has been doing agriculture since 2009.
19 CC.No.25119/2018
She had land to an extent of 1 ½ acres in Sy. No. 39 in Devanahalli.
She grew grapes in her land and she had net profit of Rs.1,50,000/.
She entered into an agreement of sale in respect of the said land with
Ramananda Reddy and the land is in his possession. She did not have
any other income apart from the agriculture. Her husband died in 2009
and she had no other income till the year 2018. Her husband had not
left any money and there was no financial support from her parental
house. It was further elicited that she performed the marriage of her
son in February 2016. She got Rs.70,00,000/ through D.D on
15.07.2017 after execution of the sale agreement. Out of the said
amount she gave Rs.13,60,000/ each to Krishnamurthy and
Chowdappa. The remaining amount was in her account. She can
produce the bank statement to substantiate the same. It was further
elicited that she gave Rs.15,00,000/ hand loan to Vanitha in October
2015, who is the sister of accused. She gave Rs.10,00,000/ hand loan
to Deepika on 28.10.2016, who is the daughter of the accused. She
gave hand loan of Rs.30,00,000/ to Narayanaswamy in the year 2016,
who is the husband of the accused. It was further elicited that she took
Rs.10,00,000/ loan on the said land and it was cleared out of the
advance amount received. She spent Rs.8 lakhs to 9 lakhs for the
marriage of her son in the year 2016. She denied that she did not draw
the amount and gave it to the accused. She stated that she can produce
the documents for withdrawing the amount. The complainant did not
produce any document to show that she had received the amount as
aforesaid. She neither produced the agreements of sale nor the bank
statement for having received the amount in her account. There is no
document on record to show the financial capacity of the complainant.
When the accused challenged the financial capacity, it is incumbent
20 CC.No.25119/2018
upon the complainant to prove her financial capacity. She stated that
she had documents and she can produce them but the none of the
documents were produced. Therefore inference can be drawn that if
the documents were produced, they would not be favourable to her. On
perusal of the above crossexamination it is clear that she cleared loan
of Rs.10,00,000/ out of the advance amount. She lent Rs.70,00,000/
to the accused and her family members. It is clear from her evidence
that she has no other income apart from the agriculture and the said
agricultural land was sold. She received Rs.70,00,000/ and out of
which she gave Rs.13,60,000/ each to Krishnamurthy and Chowdappa
and bank loan of Rs.10,00,000/ was cleared out of the said amount.
Such being the case, she would have produced the documents to
substantiate her financial capacity to lend such huge amounts to the
accused and her family members. It shows that the complainant is not
having financial capacity to lend the amount as alleged. The
observations made by the Hon'ble Supreme Court of India in
Basalingappa Vs.Mudibasappa are aptly applicable to the facts of the
case. Thus, the above discussion creates serious doubt in the mind of
this Court about transaction between the complainant and accused and
the financial capacity of the complainant at the given point of the time.
It is evident that the complainant utterly failed to prove transaction as
alleged by her and her financial capacity at the relevant point of time.
On the other hand, it is forthcoming from the evidence available on
record that the accused has rebutted the statutory presumption as
provided U/s.139 of the Act.
19. On perusal of the entire oral and documentary evidence, it
is clear that the complainant failed to prove the issuance of cheque by
21 CC.No.25119/2018
the accused in her favour for legally enforceable debt as alleged by her.
On other hand, the accused is able to establish that the complainant
has no financial capacity to lend the huge amount. It creates doubt in
the transaction of the complainant as alleged in the complaint. Hence
for the aforesaid reasons, it is clear that the complainant failed to prove
beyond all reasonable doubt that the accused has committed an offence
punishable U/s.138 of the Act. On the other hand the accused rebutted
the presumption U/s139 of NI Act by way of preponderance of
probabilities by creating doubt in the case of the complainant. Hence, I
proceed to answer the point No.1 in Negative and pint No.2 in the
Affirmative.
20. Point No.3 : In view of the reasons assigned on Point No.1
and 2, I proceed to pass the following:
ORDER
As per the provisions of Sec.255(1) Cr.P.C. the accused is hereby acquitted of the offence punishable u/s.138 of NI Act, 1881.
The personal bond executed by the accused is hereby stands cancelled and office is directed to refund cash surety of Rs.5,000/ to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 03rd day of March2022.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
22 CC.No.25119/2018ANNEXURE Witnesses examined for the Complainant: PW.1 Smt.B.Bharathi.
Documents marked for the Complainant: Ex.P.1 Cheque.
Ex.P.1a Signature of the accused.
Ex.P.2 Bank endorsement.
Ex.P.3 Legal Notice.
Ex.P.4 & P.5 Two Postal Receipts.
Ex.P.6 Postal Envelope.
Ex.P.7 Postal Acknowledgement.
Witnesses examined For Defence: Nil Documents marked for Defence: Nil (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.