Bangalore District Court
Smt. Preethi vs Sri. Babu on 23 December, 2016
IN THE COURT OF THE XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY.
(SCCH-5)
DATED THIS THE 23RD DAY OF DECEMBER, 2016
PRESENT: SMT. ROOPA K.N. B.Sc, LLB.,
VIII ADDL. SCJ & XXXIII ACMM
MEMBER - MACT
BENGALURU.
C.C No.27084/2012
COMPLAINANT : Smt. Preethi
W/o. C. Prabhakar
Aged about 33 years
R/at No.268, 2nd Floor,
2nd Cross, Someswarapura
Cambridge Layout,
Ulsoor,
Bengaluru - 560 016.
(By Sri.B.C.Venkatesh, Adv.,)
V/s
ACCUSED : Sri. Babu
S/o. not known to
Complainant
B 7/3, DRDO Township,
C.V.Raman Nagar,
Bengaluru - 560 093.
Also at:
Sri.Babu B.
C/o. Lakshmamma
LRDE Stores,
C.V.Raman Nagar, DRDO,
Bengaluru - 560 093.
(By Smt. L. Manjula, Adv.,)
2 C.C.No.27084/2012
SCCH-5
::JUDGMENT::
This complaint is filed by the Complainant under Sec.200 R/w Sec.138 of the Negotiable Instrument Act.
2. It is the case of the Complainant that:
Towards discharge of part liability due by the Accused, in connection to the hand loan taken by him, Accused issued cheque bearing No.054166 dated 18.08.2011 drawn on Citi Bank, Bengaluru infavour of Complainant for a sum of Rs.2,50,000/. This cheque was presented by the Complainant before his Banker i.e., Syndicate Bank, Ulsoor Branch, Bengaluru and it was returned dishonoured with shara on 22.08.2011 "Account Closed". In this connection, Complainant issued legal notice to the Accused through RPAD on 02.09.2011 and it was duly served on Accused on 05.09.2011. Despite service of notice, Accused neither replied nor made payment of the cheque amount. Hence, Complainant constrained to file this complaint under 3 C.C.No.27084/2012 SCCH-5 Sec.200 of Cr.P.C. R/w Sec.138 of N.I. Act, to take cognizance of the offence committed by the Accused and punish him for the said offences.
3. After perusal of the material available on record and on prima-facia material grounds, this Court took cognizance and thereafter recorded sworn statement of the Complainant on 11.09.2012 and thereafter summons were issued to the Accused, as per which Accused appeared through his counsel. Later, Accused was released on bail and on 28.09.2013 plea was read over and Accused pleaded not guilty and crime to be tried.
4. As per this, case was posted for Complainant evidence. Accordingly, Complainant examined herself as PW-1 and got marked Ex.P.1 to Ex.P.7. After completion of Complainant evidence, statement of Accused was recorded as required under Sec.313 of Cr.P.C. Per contra, Accused has been examined as DW-1 and got marked Ex.D.1 to Ex.D.3.
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SCCH-5
5. Heard argument of both counsels.
6. On the basis of pleadings, the Point for consideration is:
::POINTS::
1. Whether Complainant proves that Accused issued cheque bearing No.054166 dated 18.08.2011 for Rs.2,50,000/- drawn on City Bank, Bengaluru, in lieu of repayment of hand loan and the cheque came to be dishonored, obliging the Complainant to come up with this case?
2. What order?
7. My findings on the above points are as under:
Point No.1: In the negative Point No.2: As per final order for the following:
::REASONS::
8. Point No.1: It is the case of the Complainant that, towards discharge of part liability due by the Accused, in connection to the hand loan taken by him, Accused issued cheque bearing No.054166 dated 18.08.2011 drawn on Citi Bank, Bengaluru infavour of Complainant for a sum of Rs.2,50,000/. This cheque was 5 C.C.No.27084/2012 SCCH-5 presented by the Complainant before his Bank i.e., Syndicate Bank, Ulsoor Branch, Bengaluru and it was returned dishonoured with shara on 22.08.2011 "Account Closed". In this connection, Complainant issued legal notice to the Accused through RPAD on 02.09.2011 and it was duly served on Accused on 05.09.2011. Despite service of notice, Accused neither replied nor made payment of the cheque amount.
9. Inorder to prove her case, Complainant examined herself as PW-1 and got marked Ex.P.1 to Ex.P.7. Ex.P.1 is original cheque dated 18.08.2011 said to have been issued by the Accused infavour of this Complainant for Rs.2,50,000/- drawn on Citibank, Bengaluru and Ex.P.1(a) is signature of Accused. Ex.P.2 is an endorsement issued by the Syndicate Bank dishonouring the cheque for the reason "Account Closed". Ex.P.3 is office copy of the legal notice issued by the Complainant on 30.08.2011. Ex.P.4 to Ex.P.6 are the postal receipt, acknowledgement and envelope cover. 6 C.C.No.27084/2012
SCCH-5 Ex.P.7 is the copy of legal notice. Per contra, Accused examined himself as DW-1 and got marked Ex.D.1 to Ex.D.3, which consists Ex.D.1 is Rental Agreement dated 11.02.2011, Ex.D.2 is Lease Agreement dated 25.11.2011 and Ex.D.3 is Chit Book.
10. Despite giving sufficient opportunities both counsels for Complainant and Accused did not chosen to argue on merits. Hence, the case was posted for judgment.
11. At the outset I would like to discuss upon provisions of Sec.138, 139 and 140 of N.I.Act, which reads as follows;
Sec.138- Dishonour of cheque for insufficiency etc., of funds in the account-
Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money 7 C.C.No.27084/2012 SCCH-5 standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque, or with both.
Sec.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 Sec.140 - Defence which may not be allowed in any prosecution under Section 138 It shall not be a defence in a prosecution for an offence under Section 138 that the drawer had no reason to believe when he 8 C.C.No.27084/2012 SCCH-5 issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section
12. In the backdrop of these legal principles, if we peruse facts of the case and also evidence available on record, as per Sec.139 of the N.I.Act, the legal presumptions would be that, 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.
13. Here in this case, if we peruse the averments of the complaint, nowhere in the complaint we could find what was the transaction between the Complainant and Accused, inrespect of which, Accused borrowed debt from the Complainant and when was this transaction was held between them. The complaint simply deals with para No.3, wherein the Complainant has mentioned that, Accused towards part payment of hand loan issued respective cheque dated 18.08.2011 for Rs.2,50,000/-. 9 C.C.No.27084/2012
SCCH-5 Even the documents like Ex.P.1 and Ex.P.2 corroborate this fact.
14. If we peruse cross-examination of PW-1, she says that she was doing business from the year 2000 and getting monthly approximate income of Rs.30,000/- to Rs.40,000/- and she is also having her own house at HBR Layout, which has been leased for Rs.4,00,000/- and receiving monthly rent of Rs.7,500/- and she is also an Income Tax payee. According to her, she has shown this present loan transaction in the respective IT returns. She admitted that, she is not doing any money lending business. She admitted that, she purchased her house at HBR Layout in the year 2010 and at that time, market value was Rs.32,00,000/-. She further deposed that, she gave Rs.5,00,000/- to the Accused and 2nd week of the same month, she gave Rs.2,50,000/- and at the end of February 2011 she again paid Rs.2,50,000/- to the Accused in her parents house and she do not know the date when she made these payments. According to her, 10 C.C.No.27084/2012 SCCH-5 Accused approached her for this loan amount stating that, he wants to help his mother-in-law, who is constructing house and in need of money. She admitted that, mother-in-law of the Accused is Central Government Employee.
15. Inroder to rebut these facts, Accused examined himself as DW-1 and in his evidence he deposed that, Complainant was doing chit business and in that connection, he came to know about Complainant and he was also one of the chit member under the Complainant in the year 2007 for Rs.1,05,000/- and Rs.1,50,000/- and towards security Complainant had collected 3 cheques which were signed by the Accused. According to him, the allegation made by the Complainant that, Accused borrowed money to help his mother-in-law, who was in need of money to construct house is false, as his mother-in-law had already constructed a house much earlier to the date of cheque. The cross-examination of DW-1 is nothing but suggestions and denials. Inorder to 11 C.C.No.27084/2012 SCCH-5 prove these facts, Accused has produced Ex.D.1 which is Rental Agreement dated 11.02.2011 entered into between mother-in-law of Accused and her tenant.
16. If we carefully peruse the evidence available on record it may be true that, Accused has not disputed issuance of cheque and also his signature on Ex.P.1 and he also not disputed that, his account was closed by the time the said cheque was presented by the Complainant. The only defence that has been taken by the Accused rebutting the evidence of PW-1 is that, according to Accused, Complainant was doing chit business and in 2008 Accused also was a member of said chit under the Complainant and towards security Complainant insisted for signed blank cheques from this Accused and thereby misused the same by filing this complaint. If we peruse the documents produced by the Accused, according to Complainant, this loan transaction was done in the year 2011 and towards repayment of the same, Accused issued Ex.P.1, cheque dated 18.08.2011. Ex.D.1 and 12 C.C.No.27084/2012 SCCH-5 Ex.D.2 are the Rental Agreement and Lease Agreement dated 11.02.2011 and 25.11.2011. According to Complainant, Accused borrowed loan stating that, his mother-in-law is in need of money as she was constructing a house. But, if we peruse Ex.D.1 and Ex.D.2, by the time this alleged loan transaction was held, the mother-in-law of Accused has already constructed house and also rented the same to another person. This fact shows that, the contention of the Complainant regarding reason for this Accused to borrow loan amount seems to be false. If at all, the contention of the Complainant were to be true, she could have produced necessary documents from BBMP to show that, before this loan transaction the mother-in-law of Accused was constructing a house. But Complainant did not taken much pain and even the Complainant in her complaint nor in affidavit inrespect of chief-examination deposed that, inorder to help his mother-in-law, Accused 13 C.C.No.27084/2012 SCCH-5 borrowed loan amount. Hence, it is not possible for this Court to accept the contention of the Complainant.
17. Coming to the question of other aspects, in cross-examination of PW-1, she deposed that, she was doing saree business and earning Rs.30,000/- p.m. Though it is not necessary for the Complainant to prove the source of income, but since Complainant being housewife, when so much financially stable to lend huge amount of rupees nearly Rs.10,00,000/- to the Accused, she could have atleast produced her bank statement to show that, she was having such huge amount with her. But the Complainant has not produced any such bank statement to prove her financial stability to lend nearly Rs.10,00,000/- to the Accused. This fact also creates a doubt in the mind of the Court that, as to how this Complainant being a lady can lend such a heavy amount to the Accused. In the absence of proving that, Accused was due of a legally enforceable debt and also the source of income to lend the amount to the Accused, I hold that 14 C.C.No.27084/2012 SCCH-5 Complainant has utterly failed to prove the loan transaction and it is very clear that, this cheque might have been taken as security for chit business by this Complainant. Inview of these facts, Point No.1 is answered in the negative.
18. Point No.2: On the basis of discussions made on Point No.1, I proceed to pass the following:
::ORDER::
Acting under Sec.255 Cr.P.C. Accused is hereby acquitted for the offences punishable under Sec.138 of N.I. Act.
His bail bonds stands cancelled.
(Dictated to the stenographer, transcribed thereof is corrected and then pronounced by me on this the 23rd day of December, 2016) (ROOPA K.N.) VIII ADDL. SCJ & XXXIII ACMM, MEMBER, MACT, BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:-
P.W.1 : Smt. Preethi
15 C.C.No.27084/2012
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LIST OF WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:-
DW-1 : Sri. Babu LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:-
Ex.P.1 : Cheque dated 18.08.2011 Ex.P.1(a) : Signature Ex.P.2 : Endorsement Ex.P.3 : Legal Notice Ex.P.4 : Postal Receipts Ex.P.5 : Acknowledgement Ex.P.6 : Envelope Cover Ex.P.7 : Copy of notice
LIST OF DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:-
Ex.D.1 : Rental Agreement
Ex.D.2 : Lease Agreement
Ex.D.3 : Chit Book
(ROOPA K.N.)
VIII ADDL. SCJ & XXXIII ACMM,
MEMBER, MACT,
BENGALURU.