Bangalore District Court
Sri.R.Rajan vs Mr.Pinky Sonene on 6 October, 2016
IN THE COURT OF THE XVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated: This the 6th day of October, 2016
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.29272/2014
Complainant : Sri.R.Rajan,
S/o.Sri.N.Ramadas,
Aged about 42 years,
R/at.No.10/26, 5th Cross,
ITC Colony, Jeevanahalli,
Bengaluru-05.
(Rep. by Sri.H.N.Goverdha
Reddy., Adv.,)
- Vs -
Accused : Mr.Pinky Sonene,
D/o.Sri.Mithilal Sonene,
Aged about 27 years,
R/at.No.264, 4th Cross,
Murphy Town, Ulsoor,
Bengaluru-05.
(Rep. by Sri.M.Nagaraj.,
Adv.,)
Case instituted : 8.9.2014
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 6.10.2016
2 C.C.No.29272/2014 J
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused is closely known to him and she borrowed a sum of Rs.5 lakhs from him for her business purpose and other family necessities in the month of March 2014 and promised to repay the same within 3 months thereafter.
3. It is further submitted by the Complainant that when he approached the Accused for the repayment of the said amount in the first week of July 2014, she issued a cheque bearing No.000043 dated 07/07/2014 for a sum of Rs. 5 lakhs to him drawn on the Kotak Mahindra Bank Ltd., J.P.Nagar Branch, Bengaluru and assured him that, the said cheque would be honoured on its presentation. However, upon presentation, the said cheque came to be returned vide endorsement dated 10.07.2014 as "Payment Stopped by the Drawer".
4. Left with no other alternative, he got issued legal notice to the Accused on 06.08.2014 by way of RPAD and courier service. The notice sent by courier service came to be served on the Accused, while the notice sent by RPAD was not received by her even though intimation was delivered to her on 07/08/2014. Inspite of it she has failed either to reply to the said legal notice or to repay the cheque amount.
3 C.C.No.29272/2014 J5. The Complainant has further submitted that, the dishonour of the cheque has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint, praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
6. The pre-summoning evidence has been led by the Complainant on 07.11.2014. Prima-facie case has been made out against the Accused and she has been summoned vide the order of the same date.
7. The Accused has appeared before the Court on 27.04.2015, she has been enlarged on bail and the substance of the accusation has been read over to her on 02.06.2015, to which she has pleaded not guilty and claimed the trial.
8. In his post-summoning evidence, the Complainant has examined himself as PW1 on 27.06.2015 and he has filed her affidavit, wherein he has reiterated the averments made in the complaint.
P.W.1 has also relied upon the following documentary evidence:-
Ex.P1 is the disputed cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a) respectively, the Bank memo as per Ex.P2, the office copy of the legal notice as per Ex.P3, the postal receipt as per Ex.P4, the courier receipt as per Ex.P5, the returned RPAD cover as per 4 C.C.No.29272/2014 J Ex.P6, the complaint as per Ex.P7, the signature of the Complainant on the complaint as per Ex.P7(a).
The photo as per Ex.P8 is marked through the Accused.
9. The statement of the Accused under Sec.313 of the Cr.P.C., has been recorded on 02.01.2016.
10. The Accused has led her defence evidence by examining himself on oath under Sec.315 of the Cr.P.C., as D.W.1.
During her evidence, D.W.1 has deposed that she is a house wife and she completed her BA in the year 2007 and MSW in the year 2009 and she got married in the November 2012 and that from October 2009 to December 2014 she was working and she never intended to do any business at any point of time and that she has not taken any hand loan from anyone and that she was not at all in financial difficulty at any point of time.
11. She has further deposed that she does not know the Complainant and that she has seen him for the first time only in the court and that she has not seen him even along with her family members.
12. D.W.1 has further deposed that on 28/01/2013 she gave Stop Payment Instructions from her bank account, as she had lost her cheque leaves and as per the instruction given by her banker, she stopped payment from her account.
13. In this regard, she has produced the documentary evidence as per Ex.D1, which is her wedding invitation card, 5 C.C.No.29272/2014 J Ex.D2 which is the Letter issued by her bank, Ex.D3 which is the concerned page from the Stop Payment Register of her bank.
14. According to D.W.1, the cheque in question is one among her lost cheque leaves and that there were about 2 signed cheque leaves among her lost cheque leaves. It is further deposed by D.W.1 that she had kept her signed cheque leaves for the purpose of making advance payments to caterers and others at the time of her marriage. Further she has claimed that her cheque leaves might have been lost some time during November 2012 to January 2013. Thus on these grounds the Accused has claimed her innocence.
15. D.W.1 has been cross examined by the learned counsel for the Complainant and during her cross examination, D.W.1 has admitted that her father late Mothilal Sonene was working in the ITS Company, but she has pleaded ignorance to the suggestion that even the Complainant was working in the same Company along with her father.
16. With regard to the cheque books, it is admitted by DW1 that generally at the time of applying for the cheque books, a cheque book consisting of 10, 25, 50 or and 100 cheque leaves would be issued by the bank, but she has pleaded ignorance to the suggestion about the total number cheque leaves which were in her cheque book and she has also admitted the suggestion that normally at the time of issuing the cheques, it would be started from the first cheque leaf and that even she follows the same practice. However according to her, on 28.1.2013, she had 6 C.C.No.29272/2014 J given instruction to her Bank for the stoppage of the payments relating to 20 or more than 20 leaves and according to her, she had given instruction to her bank to stop payment in respect of cheque Numbers 10 and 15 to 30. It is also admitted by her that, the Stop Payment Instruction given by her to her Bank was not in respect of the cheques of the continuous numbers and the reason assigned by her for not doing so is that, she had availed loan from the Bank, towards which she had issued her few cheques and as she did not remember the said cheque numbers, she had given instruction for the stop payment in respect of the cheques of the random numbers. Therefore according to DW1, the reason assigned by her for stop payment from her account was the loss of her cheque book. However it is elicited from her that, she has not taken any legal action in respect of the loss of her cheque book. Even though she has admitted that, as an educated, she is aware of the consequences of having loss her cheque books. In this regard, the explanation given by DW1 is that she had intimated about the loss of her cheque book to her Bank, for which, they had instructed her to stop payment through online. However it is admitted by her that she has not lodged either the police complaint or taken any action in respect of the loss of her cheques. Further with regard to the cheque numbers, in which, she claims to have signed, according to her, she had lost such two signed cheques. However she has not been able to state the said cheque's numbers for the reason that she does not remember the same.
7 C.C.No.29272/2014 J17. With regard to the time, at which, she had lost her cheque book, according to DW1 is during the time of her marriage and at that time in order to pay the advance to the caterers and to others, she had kept her signed cheques in her house and she came to know about the missing of the same, during the first week of January 2013. It is further admitted by DW1 that as per Ex.D2, she had given instruction for the stoppage of the payment, in respect of cheque numbers 10, 20, 35, 38, 60 and not in respect of cheque numbers 11 to 19, 36 &
37.
18. During her further cross-examination, DW1 has admitted that, the cheque at Ex.P1 relates to her account and the signature at Ex.P1(a) is her signature. However she has denied the claim of the Complainant that, she had issued the said cheque towards the repayment of the loan of Rs.5,00,000/= allegedly availed by her from the Complainant in March 2013 for the purpose of her business and family necessities. It is also elicited from the mouth of DW1 that, even after she came to know that the cheque in question had been presented by the Complainant in the Bank, she has not taken any action against him.
19. Further according to DW1, there is no service of legal notice upon her, but she has denied the suggestion that though she was given intimation by the postal departments, she has not collected the legal notice sent to her address, but she has admitted that the address found in Ex.P6 is her address.
8 C.C.No.29272/2014 J20. Another important document on which the Complainant has relied upon is the photograph, which has been confronted to DW1 during her cross-examination and the same has been admitted by DW1 and accordingly it is marked as Ex.P8 and it is elicited from DW1 by confronting the said photograph to her that, she has attended the marriage of the Complainant about 10 years back. On the basis of this photograph, it is the claim of the Complainant that the Accused has taken up a false defence that she does not know the Complainant at all, even though she has admitted his wedding about 10 years along with her family members.
21. To corroborate the defence of the Accused, her paternal uncle by name Sri. P.Prakash is examined as DW2, who in his chief-evidence has deposed that he is aware of the present case and that the Accused is his niece and that the father of the Accused died on 3.11.2012 unexpectedly, when all the preparations for the marriage of the Accused were kept ready and that the marriage of the Accused was performed on 18.11.2012 under his leadership and according to him, the marriage expenses of the Accused have been borne by the savings of the Accused, her brother and his younger brother and as the father of the Accused died 15 days prior to the marriage of the Accused, for about 12 days, there were the funeral ceremonies and after the completion of the same, only 3 days were left for the preparations of the marriage and during that time, the cheques of the Accused might have been lost.
9 C.C.No.29272/2014 J22. It is further deposed by DW2 that, the husband of the Accused is a software Engineer, with a monthly salary of Rs.1,00,000/= and in the year 2014, even the Accused was working for a monthly salary of Rs.30,000/= and thereby the Accused had no financial difficulties in the year 2014 and that she had not availed loan from anybody. He has further deposed that he does not know the Complainant and that as per the version of the Complainant, as the latter is said ito be working in ITC company, he might be known to the father of the Accused, but not to him. Further according to DW2, till the year 1996, they were in joint family and therefore during that time, they were attending the relative's marriages along with all the family members.
23. With regard to the loss of the cheques of the Accused, DW1 has deposed that, he came to know about the same through phone by the Accused and thereafter he had accompanied the Accused to the Bank and at that time the Banker of the Accused had instructed her to stop the payment from her account. It is also deposed by DW2 that, they came to know about the present case, only after the receipt of the summons from the Court and there has been no service of notice prior to it.
24. Even DW2 has been cross-examined at length by the learned counsel for the Complainant, during which, he has deposed that, the father of the Accused had made the arrangements for the marriage of the Accused by arranging the hall, paying advance to the caterers for decoration, inviting the families and purchasing the clothes and gold. However according 10 C.C.No.29272/2014 J to DW2, the father of the Accused had made all the financial arrangements to meet the marriage expenses of the Accused and the remaining marriage expenses were met by his younger brother, himself, the brother of the Accused and also from the savings of the Accused.
25. Similarly, he has also been cross-examined at length with regard to the financial position of the Accused in the year 2014, in respect of which, DW2 has deposed, that he cannot state about the Bank balance of the Accused and her husband in the year 2014 and that he also does not know the Bank balance of the Accused and her husband subsequent to 2014. Similarly it is admitted by DW2 he does not know as to what was the financial requirement of the Accused.
26. With regard to Ex.P8, i.e., the photograph of the wedding of the Complainant, DW2 has deposed that, as they were in joint family, his brother might have taken his children along with his children and his wife for family occasions and he has also admitted that his wife as well as the Accused have attended the said marriage along with other family members. However he has denied that his entire family members know the Complainant.
27. With regard to the loss of the cheques of the Accused, DW2 has deposed that, the Accused informed to him that her cheques were lost in January 2014 and thereafter he went to the Bank along with the Accused and lodged a complaint about the loss of the cheques of the Accused. However DW2 has not been 11 C.C.No.29272/2014 J able to state the total number of cheques which were allegedly lost by the Accused. Similarly with regard to the service of the legal notice though in his chief-evidence, D.W.2 has denied that there is service of legal notice on the Accused, during his cross- examination, he has pleaded ignorance, as to, if, the legal notice has been served upon the Accused. Similarly it is admitted by D.W.2 that the father of the Accused was working in the ITC Company, but he has pleaded ignorance as to, if, the Complainant was also working in the same Company. Thereafter in his further cross-examination, D.W.2 has denied about the suggestion that he is deposing falsely before the Court only with a view to save the Accused from her liability to pay the cheque amount to the Complainant.
28. The learned counsel for the Complainant has argued for the conviction of the Accused on the ground that though the Accused has denied her acquaintance with the Complainant, by admitting her participation in the marriage of the Complainant about 10 years back, which is proved by the Complainant through Ex.P8, the claim of the Accused that she does not know the Complainant has been disproved by the Complainant. It is further argued that D.W.2 is the uncle of the Accused, who has only corroborated the evidence of the Accused, but there are serious contradictions in the evidence of the Accused and her uncle about their acquaintance with the Complainant. It is further argued that there are contradictions in the evidence of the Accused and her uncle, about the time, during which the cheques of the Accused were allegedly lost. It is further argued 12 C.C.No.29272/2014 J that, if at all, the defence of the Accused that her cheques were lost at the time of her marriage was true, nothing prevented the Accused from taking appropriate action apart from giving stop payment instructions to her Bank. Therefore the conduct of the Accused clearly goes to show that, though she has availed a loan of Rs.5,00,000/= from the Complainant in March 2014, for the purpose of her business and other family necessities and issued the cheque in question in July 2014, by taking inconsistent defences, the Accused has failed to probabilise her defence and thereby she has failed to rebut the presumption available in favour of the Complainant under Sec.118 r/w.139 of the N.I.Act. Accordingly, prayed for the conviction of the Accused.
29. The learned defence counsel has filed his written arguments, in which, he has argued for the acquittal of the Accused on the ground that, in fact the Accused does not even remember the Complainant and his wedding, since the photograph at Ex.P8 is 15 to 20 years old and at that time the age of the Accused might be around 8 to 9 years old. It is further argued that, according to the Complainant, the Accused and all her family members had attended his wedding and according to him, the father of the Accused is well known to him for more than 10 years, then what prevented the Complainant from disclosing the alleged loan transaction to any of the family members of the Accused. Similarly it is also argued by the learned defence counsel that, even though the Complainant has claimed that, he knows the family members of the Accused for more than 10 years, he does not know the address of either the 13 C.C.No.29272/2014 J Accused or her family members and similarly he has also admitted that he does not know the phone numbers of either the Accused or her relatives. In such circumstance it is highly impossible to believe the claim of the Complainant that he knows the Accused and her family members for more than 10 years. It is further argued that, as his evident from the cross-examination of the Complainant itself, he does not even know the date of the alleged loan transaction and he also does not know for what business or family necessities, the Accused needed money, according to him. Similarly it is argued that, as the Complainant himself has admitted that, he did not even make any attempt to know as to for what business, he had lent the money to the Accused, in such circumstance, it is difficult to imagine that the Complainant might have advanced a loan of Rs.5,00,000/= as claimed by him.
30. The learned Defence counsel has also argued that according to the Complainant, he does not know the Accused personally, but knows her through her father and in such circumstance nothing prevented the Complainant from intimating to any of family members of the Accused about the alleged loan transaction. It is further argued that the Accused has issued stop payment instructions in her Bank in respect of the cheque leaves of random numbers, because of the fact that, she had issued some cheques to Mahidra Finance for the car loan and through 2 self cheques, she had withdrawn the amount, while the cheque in question is one among the lost cheques of the Accused. Hence it is argued that, the Complainant has cooked up 14 C.C.No.29272/2014 J the case for making wrongful claim, but has failed to prove his case beyond reasonable doubt.
31. I have considered the submissions and perused the record carefully.
32. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the bank as unpaid.
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under proviso (b) to Section 138.
33. The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
34. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-15 C.C.No.29272/2014 J
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
35. Also, Sec. 118 of the Negotiable Instruments Act states:-
"Until the contrary is proved, the following presumptions shall be made:-
(a) 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 accepted, indorsed, negotiated or transferred for consideration".
36. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
37. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
38. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
39. The first defence of the Accused in the present case is that, she does not know the Complainant. In such circumstance, the burden is shifted to the Complainant to prove his acquaintance with the Accused. In this regard the 16 C.C.No.29272/2014 J Complainant has admitted in his cross-examination that, he knows the Accused through her father, as the latter was working in the ITC Company and in order to prove that he knows the Accused, the Complainant has confronted a wedding photograph as per Ex.P8, in which, the Accused has admitted having attended his wedding along with her relatives. Solely by relying upon this document, the Complainant is claiming before the Court that the Accused and he are known to each other since many years. Thus according to the Complainant he knows not only the Accused, but also her family members for more than 10 years. No doubt it is pertinent to note that, though the Accused has taken up a defence that she does not know the Complainant at all, during her cross-examination, she has admitted that she is found in the photograph at Ex.P8 along with her relatives. No doubt the said photograph is admittedly of the marriage of the Complainant and at that time, the Accused is a child and therefore even after it is proved that she has attended the wedding of the Complainant, that by itself, cannot lead to an inference that she was closely acquainted with the Complainant during the subsequent years.
40. In this regard even the uncle of the Accused who is examined as D.W.2 has corroborated the evidence of the Accused and he has also deposed before the Court that, as the Complainant is working in the ITC Company, in which, her brother i.e., the father of the Accused was working, the father of the Accused might have seen the Complainant, but he has denied having seen the Complainant earlier. However this defence taken 17 C.C.No.29272/2014 J by the Accused and which is supported by D.W.2 cannot be accepted by the court, in view of the fact that, even during his cross-examination, D.W.2 has admitted that even his wife had attended the wedding of the Complainant. Therefore the document at Ex.P8 goes to show that, both the Accused as well as her family members knew the Complainant much earlier to 2014.
41. Now coming to the next defence of the Accused that, according to the Complainant, her family members are known to him for more than 10 years, then, in such circumstance, it cannot be believed that the Complainant had not intimated about the alleged loan transaction between the Accused and himself to any of the family members of the Accused. In this regard, during the cross-examination of P.W.1, he has deposed that as the Accused had sought loan for some business purpose, he had not informed about the same to her elder members of the family and it is also his claim that, he has not intimated about the alleged loan transaction even to the father of the Accused. However he has admitted that, as on the date of his alleged lending of loan to the Accused, she was in sound financial position. Similarly when PW1 has been questioned as to what was the income of the Accused, the answer given by him is that her father was well known to him. If this were to be so, nothing prevented the Complainant from informing about the alleged approach of the Accused seeking loan from him either to her father or to any of her family members. By not having done so, a serious doubt arises in the mind of the Court about the claim of the 18 C.C.No.29272/2014 J Complainant. It is a normal practice that, whenever a person seeks loan, then the lenders would generally verify about the financial capacity of the borrower so as to repay the amount or take guarantee from someone so as to clear such loan, in case of default, if any committed by such borrower. In the present case, when the Complainant himself has admitted that, he has not informed either to the father of the Accused or to her family members about the alleged loan, this raises a serious doubt about the case of the Complainant.
42. Similarly the Complainant himself has admitted in his cross-examination that, he does not know the address of any of the family members of the Accused and that he also does not know the address of the Accused and even the telephone numbers of either the Accused or her relatives. If this is true, as admitted by the Complainant himself, then it is highly improbable to believe the version of the Complainant that he has lent Rs.5,00,000/= to the Accused. Because it is common sense that if a person does not know either the address or the phone number of a borrower, he would advance a loan of Rs.5,00,000/= as claimed by the Complainant in the present case. Even this factor also contributes to drawing an adverse inference against the Accused.
43. Similarly according to the Complainant, he has lent the loan amount to the Accused, without even obtaining any documents from her and that too without there being any witness present at the time of such alleged lending. Similarly no where in the complaint, the Complainant has disclosed as to where the 19 C.C.No.29272/2014 J alleged loan transaction had taken place and according to him, he does not even know the date on which, the Accused allegedly approached him for financial assistance and when he has lent the alleged loan to her. This is also very crucial in order to know the conduct of the Complainant.
44. At this juncture, this Court places reliance upon the following decisions:-
a) In Shiva Murthy Vs. Amruthraj, reported in ILR 2008 KAR 4629, wherein our Hon'ble High Court has held that:-
" Before considering the conduct of the accused, to find out as to whether or not he has been able to rebut the statutory presumption available under Section 139, the courts have to consider as to whether the complainant has proved the existence of the legally enforceable debt. It is only after satisfying that the complainant has proved the existence of the legally enforceable debt or liability, the courts could have proceeded to draw presumption under Section 139 of N.I. Act and thereafter, find out as to whether or not the accused has rebutted the said presumption".
45. By placing reliance upon this decision it is argued by the counsel for the accused that, the complainant has to prove before this court as to when and how he collected the amount, which is a substantial amount and why he should lend a substantial amount to the accused without charging interest.
20 C.C.No.29272/2014 J46. In Veerayya Vs. G.K. Madivalar, reported in 2012(3) KCCR 2057, it has been held that:-
" Mere issuance of cheque is not sufficient unless it is show that, the said cheque was issued towards the discharge of a legally recoverable debt when the financial capacity of the complainant is questioned, the complainant has to establish his financial capacity".
47. Further the Complainant admits that, though he is an income tax assessee, he has not declared about the alleged loan transaction with the Accused in his IT returns. In such circumstance, even Sec.269 SS of the Income Tax Act is applicable to the Complainant.
48. Now coming to the purpose, for which the Accused is alleged to have availed loan from the Complainant, according to the Complainant, the Accused availed loan for the purpose of her business. However during his evidence before the Court, PW1 has not been able to say as to what was the business that the Accused intended to start by availing a loan from him. This also raises a serious doubt in the case of the Complainant.
49. Further with regard to the letter of stop payment issued by the Accused to her Bank, she has been cross-examined seriously by the learned counsel for the Complainant about the fact that, the Accused has issued the stop payment instructions in respect of the cheques in random number and not in sequence. This is also indicative of the fact that though the 21 C.C.No.29272/2014 J Accused has issued the cheque in question to the Complainant towards the repayment of the loan, she has come up with a false defence that she had issued the other cheques towards her car loan etc., However this cannot be doubted in view of the fact that, it is not only the cheque in question that the Accused has left out in her stop payment instructions, but also the other cheques with Numbers 00003820041 and thereafter from 00003282 to 000060. No doubt it is a common practice that the cheques are issued in the order of sequence, but whenever the loans are obtained either from the Bankers or from the financial institutions, it is a common practice to issue cheques in bulk in the form of either 10 cheque leaves or 20 cheque leaves etc., Therefore this defence of he Accused seems to be believable.
50. The next defence of the Accused is with regard to the technical defence of the non-service of the legal notice. In this regard during her cross-examination, though the Accused has denied that, she has been served with the legal notice, she has admitted the suggestion that the address shown in Ex.P6 i.e., the postal envelop is her address and that she resides in the said address, but she has denied that, though she has been intimated by the postal authorities about the same, she has failed to collect the said notice. She has further denied that, she has received the legal notice sent to her through the courier service.
51. It is a well settled principle of law that, whenever a post is sent through RPAD and it is returned with a shara, then before drawing the presumption under Sec.27 of the General clauses Act, it is the duty of the Complainant to summon the concerned 22 C.C.No.29272/2014 J postman and prove about the same. However it is pertinent to note that when the Accused has admitted that she is residing in the address shown on Ex.P6, there is deemed service of notice as per Sec.27 of the General clauses Act. Therefore this technical defence is not available to the Accused.
52. Now by appreciating the entire evidence placed on record, it clearly goes to show that the claim of the Complainant that he has lent a loan of Rs.5,00,000/= to the Accused is not proved by him beyond reasonable doubt. But the fact that the Complainant has not mentioned about the alleged loan transaction in his IT returns raises a serious doubt about his case.
53. In the light of the above discussion, it comes out that the Complainant has failed to prove his case beyond reasonable doubt and he has failed to fulfil all the ingredients of the offence punishable under Sec.138 of the N.I Act against the Accused. The Accused has successfully proved her defence and rebutted the presumption in favour of the Complainant, as the standard of proof so as to prove the defence on the part of the Accused is only "Preponderance 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.
54. Thus in the present case, the defence of the Accused to the case of the Complainant that, she does not know the Complainant and secondly that, she never had transaction with 23 C.C.No.29272/2014 J the Complainant and the facts that during his cross-examination, the Complainant could not state about the family members of the Accused, all these factors are sufficient to draw inferences that the Complainant and the Accused did not know each other and no document in support of the alleged loan transaction is placed on record by the Complainant and the Complainant also failed to mention the date of the advancement of the loan and even during his cross-examination, he has not been able to state the exact date of his advancement of loan to the Accused and these factors are sufficient to hold that the defence of the Accused is probable and that the Complainant has failed to prove the alleged transaction and thereby this Court has no hesitation to hold the Accused has probabalised her defence successfully.
55. In support of his arguments, the learned defence counsel has relied upon the decision of the Court of the Metropolitan Magistrate of Delhi in Anil Kumar Vs., Amit Aircone, through it's Proprietor Rajiv Gupta.
56. In view of the aforesaid reasons and discussions, I proceed to pass the following:-
ORDER By exercising the power-conferred u/s 265 of Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act.
Her bail bond and surety bond stands
cancelled.
24 C.C.No.29272/2014 J
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, verified and then pronounced by me in the open Court on this the 6th day of October, 2016).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:
PW.1 : R.Rajan
2. List of documents exhibited on behalf of the Complainant:
Ex.P-1 : Original Cheque; Ex.P-1(a) : Signature of the Accused; Ex.P-2 : Bank memo; Ex.P-3 : Copy of the Legal Notice; Ex.P-4 : Postal receipt; Ex.P-5 : Courier receipt; Ex.P-6 : Returned RPAD cover; Ex.P-7 : Complaint; Ex.P-7(a) : Signature on complaint; Ex.P-8 : Photo ( Marked through D.W.1)
3. List of witnesses examined on behalf of the Accused:
DW1 : Pinky Sonene; DW2 : P.Prakash.
4. List of documents exhibited on behalf of the Accused:
Ex.D1 : Wedding invitation card;
Ex.D2 : Letter by the Bank;
Ex.D3 : Extract from the Stop payment Register.
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.
25 C.C.No.29272/2014 J
6.10.2016
Judgment pronounced in the open court vide
separate order.
ORDER
By exercising the power conferred
u/s 265 of Cr.P.C., the Accused is hereby
acquitted of the offence punishable u/s
138 of Negotiable Instruments Act.
Her bail bond and surety bond
stands cancelled.
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.