Bangalore District Court
C.S.Nagaraj vs Arathi S Patil on 20 January, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 20th day of January - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.16097/2014
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : C.S.Nagaraj,
S/o.C.V.Satyanarayana,
Aged about 52 years,
R/at No.329, 8th Main,
4th Cross, Vidyapeeta,
Banashankari 3rd Stage,
Bengaluru-85.
(Rep. by Sri.D.N.Arunkumar, Adv.)
V/S
Accused : Arathi S Patil,
W/o.Shashi S patil,
Aged about 38 years,
R/at. No.329, Ground Floor,
Vidyapeeta, Banashankari 3rd Stage,
Bengaluru-85.
(Rep.by Sri.Thimmegowda, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 20.01.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.16097/2014
JUDGMENT
The complainant has presented the instant complaint against the accused on 19.04.2012 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheques of Rs.4 lakhs.
2. The brief facts of the complainant case is as follows:
The complainant and the accused were close family friends for the past several years and known to each other. During last week of June, 2011, accused had approached the complainant seeking for hand loan of Rs.4 lakhs for her personal and other necessities and promised to repay the same within 8 to 9 months. Believing the version of the complainant and since had good faith, with an intention to held the accused, the complainant had arranged the fund from his business and family members and paid Rs.4 lakhs by way of cash on 10.07.2011 to the accused in the presence of witnesses. On the very same day, the accused had issued two post dated 29.02.2012 and 22.03.2013 crossed cheques bearing Nos.267479 and 658101 for sum of Rs.2 lakhs each, drawn on Canara Bank, South End Circle Branch, Bengaluru and also issued one hand loan agreement being taken the hand loan from the complainant. While issue the said Judgment 3 C.C.No.16097/2014 cheques, promised to maintain sufficient funds in her account as on the date of their presentation.
The complainant has further averred that, on the specific advice of the accused, the complainant has presented the said cheques on 29.02.2012 and 22.03.2012 respectively, as per the bank endorsements dated:01.03.2012 and 24.03.2012, the same came to be dishonoured stating "Insufficient Funds". Thereafter, he contacted the accused, then she gave evasive reply. Hence, on 29.03.2012 he gave legal notice to the accused through his counsel by way of R.P.A.D as well as professional courier. The notice sent through R.P.A.D was duly served upon accused on 30.03.2012. Despite that, the accused neither paid the money covered under the cheques nor issued any reply. Thereby, she committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
Judgment 4 C.C.No.16097/2014
4. In response to the summons, the accused appeared through her counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to her, wherein, she denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P10. The PW.1 was subjected for cross-examination by the advocate for the accused. In the cross-examination of DW.1, complainant counsel got confronted one document and same is marked as Ex.P11.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by her was recorded. In support of the defence, the accused herself was examined as DW.1 and got marked Exs.D5 to D13 and also subjected for cross-examination by the advocate for the complainant. In the cross-examination of PW.1, accused counsel got confronted documents and same are marked as Exs.D1 to D4.
7. Both side counsels have addressed their arguments.
Judgment 5 C.C.No.16097/2014
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.4,00,000/- on 10.07.2011 as hand loan to the accused in the presence of witnesses, and in turn, she executed hand loan agreement and for discharge of legal recoverable debt, the accused issued the Exs.P1 and P2 cheques bearing Nos.267479 and 658101, dated:29.02.2012 and 22.03.2012 for sum of Rs.2,00,000/- each, drawn on Canara Bank, South End Circle, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
Judgment 6 C.C.No.16097/2014 The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P11(a), they are:
a) Exs.P1 and P2 are the cheques bearing Nos.267479 and 658101 issued by the accused for sum of Rs.2,00,000/- each, dated:29.02.2012 and 22.03.2012, drawn on Canara Bank, South End Circle, Bengaluru.
b) Exs.P1(a) and P2(a) are the alleged signatures of accused.
c) Exs.P3 and P4 are the bank challan counter foils.
d) Exs.P5 and P6 are the Bank Memos dated:01.03.2012 and 24.03.2012.
e) Ex.P7 is the Legal Notice dated:29.03.2012.
f) Ex.P8 is the Postal receipt.
g) Ex.P9 is the professional courier receipt..
h) Ex.P10 is the Postal Acknowledgment Card.
i) Ex.P11 is the hand loan agreement dated:10.07.2011 executed by accused in favour of complainant and
j) Ex.P11(a) is the signature of accused.
The PW.1 was subjected to the cross-examination by the advocate for the accused.
11. In order to prove the defence of the accused, she herself choosen examined as DW.1 and produced the documents at Exs.D1 to D13. They are:
Judgment 7 C.C.No.16097/2014
a) Ex.D1 is the statement of account pertaining to the accused herein for the period from 19.11.2010 to 31.03.2011.
b) Ex.D2 is the certified copy of order sheet in O.S.No.748/2012 on the file of Hon'ble CCH-43, Bengaluru.
c) Ex.D3 is the summons issued by Hon'ble CCH-43 to accused in O.S.No.748/2012.
d) Ex.D4 is the certified copy of plain in O.S.No.748/2012 on the file of Hon'ble CCH-43, Bengaluru.
e) Exs.D5 and D6 are the certified copies of judgment in C.C.No.6026/2013 and 16567/2014 on the files of 2nd ACMM, Bengaluru.
f) Ex.D7 is the certified copy of judgment in S.C.No.1711/2016 on the file of XVI Addl. Small Cause Court, Bengaluru.
g) Ex.D8 is the acknowledgment dated:19.04.2018 issued by CKA Police Station, Bengaluru to accused herein.
h) Ex.D9 is the complaint dated:19.04.2018 lodged by accused herein against one Smt.Gayathri Devi, who is the wife of complainant herein before the CKA Police Station.
i) Ex.D10 is the certified copy of order sheet in PCR No.19385/2011, on the file of II ACMM Court, Bengaluru.
j) Ex.D11 is the certified copy of private complaint filed by accused herein against complainant and his wife in PCR No.19385/2011, on the file of II ACMM Court, Bengaluru.
k) Ex.D12 is the certified copy of FIR in Cr.No.342/2011 and
l) Ex.D13 is the certified copy of B-Report.
Judgment 8 C.C.No.16097/2014 The DW.1 was subjected to the cross-examination by the advocate for the complainant.
12. In this case, the advocate for the accused completely cross- examined the PW.1 on several installments. Thereafter, the incriminating evidence made against the accused was read over and explained to her as required under Section 313 of Cr.P.C., then she denied the same and to prove her probable defence choosen to entered into the witness box and on oath filed affidavit evidence. Wherein, in proving she contended that, the accused has denied the averments and allegations made in the complaint against her and denied the borrowing of alleged loan. The accused specifically contended that, for the purpose of urgent needs, in the month of November, 2010, she borrowed sum of Rs.25,000/- from the complainant and at that time, she gave disputed two singed blank cheques and one singed blank document sheet paper as security to the complainant. Thereafter, she repaid the amount to the complainant with interest and the payment made by her to the complainant on 12.12.2010 sum of Rs.5,000/-, on 28.12.2010 sum of Rs.10,000/- and on 17.02.2011 sum of Rs.13,000/- is been admitted by him.
Judgment 9 C.C.No.16097/2014
13. The accused also contended that, she is the owner of two floors building having 5 houses. The complainant requested the accused to lease out one of the house to him and said, he ready to give the lease amount of Rs.3 lakhs, to the same the accused also agreed and gave the house on lease to the complainant. Meanwhile, by over confidence, the complainant forgotten to take back the 2 singed blank cheques and one singed blank document sheet. At the time of entering into the lease agreement with the complainant, he gave only Rs.2 lakhs and requested to gave balance amount of Rs.1 lakh after one month. Thereafter, the complainant has displayed his true colour and started to give mental torture and troubles and try to cheat her. When accused came to know about the said intention of the complainant, she filed complaint before the Jurisdictional Police Station, demanding the balance lease amount or vacate from the house. The police persons have not supported to her and hence, she filed private complaint in P.C.R.No.19385/2011.
14. The accused has also contended that, the complainant in order to take revenge against the accused filed false and frivolous case in C.C.No.6026/2013, 16567/2014 and O.S.No.748/2012 against her, wherein, un-contest the accused as acquitted, complainant has not contested the matter therein. In order to Judgment 10 C.C.No.16097/2014 cause mental torture and trouble, the accused one or other way, the complainant has foisted false case in order to grab money illegally by made use of two singed blank cheques, which were obtained in the month of November, 2010. She has denied, there is no creditor and debtor relationship between complainant and accused and he filed false case by misusing the questioned cheques. Hence, prayed for her acquittal by way of dismissal of the case. The DW.1 was subjected for cross-examination.
15. No doubt, as per Sections 118 and 139 of Negotiable Instruments Act, the initial statutory presumption shall be drawn in favour of the complainant that, for discharge of existence of legally recoverable debt, the accused issued the questioned cheques for payment of Rs.2 lakhs each to the complainant, unless and until contrary prove. In this case, the accused has not admitted the very claim put forth by the complainant and liability arose under the questioned cheques at Exs.P1 and P2. But she strongly attack on the claim of the complainant including his conduct of filing present case. The accused has cited above, as taken up altogether different stating that, while she borrowed money of Rs.25,000/- from the complainant for her urgent necessity in the year 2010, he took two singed blank cheques, which is subject matter of the present case and also one singed blank document Judgment 11 C.C.No.16097/2014 sheet and she got cleared the said money by over all paid Rs.28,000/- with interest, as admitted by the PW.1 and she forgotten to take back those documents. When the complainant came to her house as lessee, though he undertakes to pay lease amount of Rs.3 lakhs only he gave Rs.2 lakhs and Rs.1 lakh not been paid, hence, she lodged complainant at Exs.D10 and D11 against the complainant. As counter blast, complainant had filed separate criminal cases against the accused as per Exs.P5 to P9, wherein, she acquitted. The complainant in order to take revenge, got misused singed blank cheques and document sheet, filed the false case. Hence, she is not liable to pay money.
16. The accused not only taken up the mere plausible explanation, but also taken up with specific contention coupled with documents Exs.D1 to D10 placed on record to prove her probable defence. No doubt, as per Section 139 of Negotiable Instruments Act, the initial burden on the accused to rebut the case of the complainant and statutory presumption. In that regard, her evidence oral as well as documentary evidence on record.
17. The accused has specifically contended that, she not borrowed the alleged loan nor issued questioned cheques for Judgment 12 C.C.No.16097/2014 discharge of Rs.4 lakhs, as alleged by the complainant on 10.07.2011. But placed her specific defence narrated above. Even, the documentary evidence placed by the accused at Ex.D1 to D10, which clearly discloses that, earlier as per Ex.D1, she got repaid sum of Rs.28,000/- to the complainant with interest in respect of the borrowed loan amount of Rs.25,000/- during November, 2010. No doubt, in the earlier version of the cross of PW.1, though he denied the receipt of said money, but in the later portion of cross-examination, he clearly admitted that, whatever the amount of Rs.5,000/-, Rs.10,000/- and Rs.13,000/- found in Ex.D1 paid by the accused to him. If at all, the complainant not lent loan of Rs.25,000/- to the accused, what was the necessity to him to receive the said huge amount on 3 installments from the accused, as she urged is not been clearly explained. Therefore, the factum of the accused borrowed loan of Rs.25,000/- during November, 2010 and got cleared as per Ex.D1, clearly proved with oral as well as documentary evidence. Though, she subjected for cross-examination, she withstood her contention by re-asserting the same.
18. On going through the Exs.D2 and D3, it made clear that, by mentioning the cause of action dated:18.01.2012, as found in Ex.D2, he and his wife filed suit for injunction against the accused Judgment 13 C.C.No.16097/2014 in respect of lease premises of the accused. The said factum also clearly discloses that, at least from 24.01.2012 there were dispute between complainant and accused. Therefore, it discloses that, the property dispute arose between complainant and accused in respect of lease premises after the alleged lent of loan on 10.07.2011 by the complainant to the accused, dispute arose on 18.01.2012 as per Ex.D1. The said factum discloses that, before instituting the suit, definitely, there were few months earlier, the rift arise between complainant and accused. It is equally important to focus on the private complaint filed by the accused against the complainant as per Exs.D10 and D11. The Ex.D11 private complaint earlier filed by the accused against the complainant on 26.08.2011. It clearly manifest that, the complaint is lodged by the accused against the complainant from the alleged lent of loan dated:10.07.2011, almost 45 days gap. Therefore, it made clear that, the Ex.D10 is the vital document, which came to be in picture within 45 days of alleged lent of loan.
19. On going through the Ex.D11, the allegations made in the private complaint lodged by the accused against the complainant, it was the serious allegation made by her that, though accused was undertakes to pay lease amount of Rs.3 lakhs, he only paid Rs.2 lakhs and remaining lease amount of Rs.1 lakh not yet been Judgment 14 C.C.No.16097/2014 paid, despite, she made request, and made other allegations against the complainant. In the said complaint it was also alleged that, in the anticipation of the accused going to pay the balance lease amount of Rs.1 lakh, she permitted him to occupy her lease premises and when during 2nd week of May, 2011, she requested for another Rs.1 lakh, the accused used filthy language and scold her and other allegations are made so on. Therefore, it also discloses, from the said complaint that, during 2nd week of May, 2011, she went asking for balance amount of Rs.1 lakh, the accused lodged complaint. Therefore, the said factum also discloses that, there was rift between complainant and accused from 2nd week of May, 2011. The said allegations are made in the complaint at Ex.D1. Therefore, it made clear that, Exs.D10 and D11 are the vital documents, which reveal the misunderstanding between complainant and accused, as lessee and lesser at least from 2nd week of May, 2011. Thereafter, the complainant took the risk to pay huge amount of Rs.4 lakhs to the accused on 10.07.2011 in the presence of witness and in turn, she got executed the loan agreement and issued questioned cheques is to be proved by the complainant as reverse burden. Even through out the case, the accused withstand her contention in that regard.
Judgment 15 C.C.No.16097/2014
20. On going through the other cases found in Exs.D5 to D7, which also made clear that, the complainant and his wife lodged cases against accused, wherein, she acquitted. It is also significant fact to note that, the complainant not choosen to prosecute the matter by way of contesting. If he subjected for cross-examination definitely, truth will reveal in regard to the true affairs, but the same not been done by the complainant.
21. On going through the rival contentions of the parties, by virtue of the lease agreement entered into between accused and complainant in respect of her lease premises for the duration of 3 years commencing from 01.05.2011 as per admitted pleading of the complainant, as found in Ex.D2 - Plaint in O.S.No.748/2012 reveal. The said pleading, the very complaint herein has pleaded that, before induction, he gave Rs.2 lakhs as on 01.05.2011 and another Rs.1 lakh was paid by him on 06.06.2011. The Ex.P10 - complaint, it made clear that, though complainant has contended, paid Rs.2 lakhs and Rs.1 lakh respectively, on the above said dates, it made clear that, without paying the entire lease amount to the accused, the complainant entered into the lease premises and also claiming that, he paid sum of Rs.1 lakh on the later date on 06.06.2011. Whereas, the accused has contended that, the complainant only gave Rs.2 lakhs and later Rs.1 lakh was not Judgment 16 C.C.No.16097/2014 been paid by him. In that regard, she lodged private complaint before the court on 26.08.2011 as per Ex.D10 in P.C.R.No.19385/2011.
22. On meticulous perusal of the Ex.D10, the complaint allegations clearly discloses that, though there was lease agreement was entered into between complainant and accused, it was the allegation made against complainant that, without the knowledge of the accused, he himself got inserted the payment of Rs.1 lakh in the lease agreement, hence, she lodged complaint for recovery of Rs.1 lakh and alleged threat made by the complainant. The Ex.D10 - private complaint filed by accused at undisputed point of time against the very accused also made clear that, the accused got questioned the insertion of adding payment of Rs.1 lakh in the lease agreement dated:01.05.2011. Therefore, it made clear that, the lease agreement is the vital document; it requires to be produce by the parties. The accused is not brought the present case, therefore, in view of her serious allegation against the complainant, the said document is prima facie document to establish the alleged payment of Rs.3 lakhs being a lease amount to the accused. In this case, the complainant has not stated that, he is not having any such lease document, but in his cross-examination he stated that:
Judgment 17 C.C.No.16097/2014 "°Ã¸ï£À ªÉÆvÀÛ 3 ®PÀë gÀÆ. ¥ÀqÉzÀ §UÉÎ DgÉÆæ £À£ÀUÉ zÁR¯É §gÉzÀÄPÉÆnÖgÀÄvÁÛgÉ. D ¥ÀvÀæªÀ£ÀÄß DgÉÆæAiÉÄà vÀA¢gÀÄvÁÛgÉ. ºÁUÉ §gÉzÀÄPÉÆlÖ zÁR¯ÉAiÀÄ£ÀÄß £ÁåAiÀÄÁ®AiÀÄPÉÌ vÀAzÀÄ ºÁdgÀÄ¥Àr¸À®Ä vÉÆAzÀgÉ E®è,"
23. As per the say of PW.1, he stated that, accused for having receipt of Rs.3 lakhs got executed lease document and she herself has purchased the stamp paper and he had no impediment to produce the same. Later, in his further cross- examination he deposed that:
"DgÉÆæAiÀÄ ªÀÄ£ÉUÉ £Á£ÀÄ °Ã¸ïUÉ ºÉÆÃzÁUÀ 3 ®PÀë ¤ÃrzÉÝ. D °Ã¸ï ºÀtPÉÌ ¸ÀA§AzÀs¥ÀlÖAvÉ MAzÀÄ ¥ÀvÀæ ªÀiÁr¹PÉÆArzÉÝ. D zÀÁR¯É ºÁdgÀÄ¥Àr¸À®Ä vÉÆAzÀgÉ E®è."
24. On going through the further evidence of PW.1, he also restated so, and further convinced that, he got obtained document from the accused, regarding payment of Rs.3 lakhs and no impediment to produce the same before this court. Despite, he undertakes to produce those documents and submitted in impediment to place the same before this court, the said document for the reasons better known to the complainant, though he possessed as such been avoided for the reasons between known to him. Therefore, the said lease agreement Judgment 18 C.C.No.16097/2014 alleged to be executed by the accused in favour of complainant for the receipt of Rs.3 lakhs is with held by the complainant. Therefore, it made clear that, for the allegation made by the accused as per Ex.P10, the private complaint lodged by her, it has to be presume that, the complainant got inserted some words for having payment of Rs.1 lakh as alleged by the accused, he avoided to produce the same, in the anticipation of adverse effect of his claim. Therefore, the non-production of said lease agreement alleged to be executed by accused for having receipt of Rs.3 lakhs is created doubt, as to the bonafidness of the complainant. When complainant himself not paid Rs.1 lakh to the accused by virtue of the lease document, the same also admitted by the complainant by way of filing suit in O.S.No.748/2012 for bare injunction against the accused herein. Hence, it is difficult to accept that, the complainant had paid subsequent Rs.1 lakh to the accused on 06.06.2011.
25. It is require to prove by the complainant by producing necessary evidence, but he withheld the documentary evidence. In the Ex.D2-Plaint of the complainant herein, he stated that, Rs.1 lakh were paid by him to the accused on 06.06.2011 in the presence of witnesses, the accused acknowledged the said amount and affixed her signature and executed the lease Judgment 19 C.C.No.16097/2014 agreement. Therefore, though witnesses are available and executed the lease agreement by the accused, the same is prima facie document to establish the very contention of the complainant. But he not produced the same, it supports the probable defence of the accused that, complainant as per the lease agreement not paid the lease money of Rs.3 lakhs against which only paid Rs.2 lakhs. Therefore, the question would arise, when the complainant himself not able to pay agreed lease money, whether he was capable to pay the loan of Rs.4 lakhs, as he alleged in the complaint very particularly on 10.07.2011 itself created doubt. It is pertinent to note that, if at all, complainant lent loan of Rs.4 lakhs to the accused on 10.07.2011, as he alleged and on the very same day, he claimed to be accused got issued post dated cheques at Exs.P1 and P2 and got executed loan agreement.
26. It is pertinent to note that, through out the conclusion of the trial of the complainant, though, he alleged to be got executed loan agreement from the accused; he avoided to produce the same, enable the accused to cross-examine the same on its genuineness. In the complaint he stated that, in the present of witnesses, the complainant gave Rs.4 lakhs by way of cash on 10.07.2011. If at all, any witnesses were present, definitely, could Judgment 20 C.C.No.16097/2014 have been examine any one of the witness, but not examined any one of the witnesses nor produce the said hand loan agreement executed by the accused in his favour in his evidence. But produced by way of confronting the signature by folding the said agreement, when accused is in the witness box. Since found signature, the accused has admitted the said document stating that, signature is of her and said stamp paper was given by her to the complainant, while she borrowed loan of Rs.25,000/- in the year 2010 along with singed blank cheques. The DW.1 has successfully withstood her contention stating, denial of the contention of the complainant, at the time of borrowing of loan got executed the said loan agreement at Ex.P11. It also pertaining to note that, from the private complaint filed by the accused on 26.08.2011. it made clear that, before the complainant made use of the questioned cheques at Exs.P1 and P2 dated:29.02.2012, she already initiated legal action by way of filing private complaint as per Ex.D10. Therefore, she has successfully proved her probable defence, which attacks the very claim of the complainant, as to the alleged loan transaction held between complainant and accused. By virtue of contesting evidence of accused and production of document, it made clear that, she successfully attack on the claim of complainant, therefore, it is the Judgment 21 C.C.No.16097/2014 reverse burden on the complaint as per Section 139 of Negotiable Instruments Act, to prove his case beyond the reasonable doubt.
It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".
In the decision reported in ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:
(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -
Something probable has to be brought record - Burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - Thereafter the said presumption arising under Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural even human Judgment 22 C.C.No.16097/2014 conduct and public and private business) -
Evidence Act, 1872 - Section 114 - Presumptions of fact under".
In the decision of AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".
27. From the point of above dictums also, as well as by virtue of Sections 118 and 139 of Negotiable Instruments Act, it is the reverse burden on the complainant, proving as to passing of loan amount of Rs.4 lakhs from his hand on 10.07.2011 by way of arrangement and paid to the accused in the presence of witnesses.
28. In that regard, on going through the complaint allegations, he stated that, during last week of June, 2011, accused approached him seeking for loan of Rs.4 lakhs for meet out her personal and other necessities and promise to repay the same within 8 to 9 months. Believing her words on good faith, he Judgment 23 C.C.No.16097/2014 arranged the money from his business and family members, paid to the accused in cash on 10.07.2011 in the presence of witnesses. The said pleading of the complainant, it made clear that, complainant had no money, when accused alleged to be approached him, therefore, he pleaded arranged the money from his business and family members and paid in the presence of witnesses. Therefore, it is him to explain, how he mobilized the fund of Rs.4 lakhs, as he contended, in that regard, no pleading is made, but he tendered for cross-examination. Wherein, it was suggested to him that, no such loan amount is paid and when he subjected for cross-examination stated that, he studied 4th standard and drive the auto rickshaw. Before that, he did candle business and got income of Rs.15,000/- per month, his wife is house made and daughter is studied B.Com. From the said evidence of PW.1 stated, he had income out of running auto rickshaw, therefore, he needs to produce necessary document, how he mobilized the fund. In the complaint, not stated, how he mobilized the fund, but in the cross-examination also he lost his opportunity to explain, regarding arrangement of money.
29. In his cross-examination he stated that, in his house, in the presence of his wife, he gave money of Rs.4 lakhs to the accused. he also stated that, earlier, he used todo money lending business Judgment 24 C.C.No.16097/2014 and no document in that regard. As, accused asked for the loan amount, for urgent necessity, he gave and undertakes to repay the same within 8 to 9 months. He not stated, anything about the mobilization of fund. When he pleaded arranged from his business and family members, being an auto driver, how he mobilized such a huge amount, what extent he gathered from his business and from whom he mobilized the fund of his family members is also not been satisfactorily explained.
30. That apart, in his further cross-examination he deposed that, except lease business, the present complaint money transaction, he had no monetary transaction with the accused. As per his say, he stated, lease transaction and alleged loan transaction only happened between them and no other transaction were happened. As per his say, he inducted as lessee to the house of accused on 01.05.2011. The alleged loan, paid on 10.07.2011. Therefore, it made clear that, as per the say of PW.1 prior to that, no transaction were happened. Under such circumstances, as found in Ex.D1 bank statement of the accused, on several occasions, why he got received sum of Rs.28,000/- from the account of accused by way of cheque, that too, very particularly on 12.12.2010, 28.12.2010 and 17.02.2011 amounting to Rs.28,000/-. The said admission of receipt of money on Judgment 25 C.C.No.16097/2014 various dates, it clearly manifest that, PW.1 has deposed false, through there was monetary transaction held between them, he deposed contrary to the same, therefore, it also one of the circumstances, as to disbelieve his contention.
31. The PW.1 has stated that, accused gave cheque in the name of complainant for withdraw money by way of cheque in his name and gave it to the accused for her purpose, it also created doubt as to very contention of the complainant.
32. In the complaint, though he contended, gave money in the presence of witnesses, he not stated, how is that witnesses and why he not examine them is also created doubt, as to the bonafidness of the complainant.
33. The PW.1, though pleaded accused got issued one hand loan agreement, as to the borrowing of loan, through out completion of his evidence, he withheld the said document, in his cross-examination he stated that, he gave it to his counsel, but he misplaced, hence, not produced. At least before tendering the said document directly to the DW.1, he could have placed the same through the evidence of PW.1 by way of creating an opportunity to the accused to say something on the said document, but avoided in doing so, by way of tender through Judgment 26 C.C.No.16097/2014 DW.1. The complainant has contended that, the accused got executed the Ex.P11- hand loan agreement on 10.07.2011. If at all, as said by the complainant on the date of receipt of money in the presence of witnesses, if at all, the accused got executed the hand loan agreement at Ex.P11. In order to avoid further legal complications, he could have took signature of the witnesses to the said transaction, but no such signature is found in the Ex.P11 of the witnesses. The accused when tendered forged document, which discloses, the signature of the accused, she admitted, hence, the said document is got marked at Ex.P11 and her signature at Ex.P11(a), she very carefully stated that, the said signature were given on blank document, while borrow loan of Rs.25,000/- in the month of November, 2010. But the suggestion made by the complainant, as to the borrowal of loan of Rs.4 lakhs on 10.07.2011, accused got executed the said document is been denied. Therefore, it requires to focus on the said document. On going through the Ex.P11 as well as evidence of DW.1, she admitted her signature, but denied her due execution in respect of receipt of Rs.4 lakhs on 10.07.2011. Therefore, it is the complainant has to establish that, the said document was duly executed and issued by accused to him on 10.07.2011. It is significant fact to note that, though alleged document was kept in Judgment 27 C.C.No.16097/2014 the custody of the complainant from 10.07.2011 till 03.10.2019 over the period of 8 years, he kept the said document in his custody and after conclusion of his evidence through the DW.1 leave the said document on evidence for the reasons better known to him, despite, accused attack on its genuineness.
34. On meticulous perusal of the Ex.p11, it discloses, it is not a stamp paper, it is only document sheet of Rs.2/-. On meticulous perusal of the seal as to the payment of stamp duty, it discloses, Rs.50/- was paid on 23.04.2010. It is significant fact to note that, on 23.04.2010 no transaction held between complainant and accused. If at all, the said transaction was truly made on 10.07.2011, definitely, complainant could have taken the stamp paper on the same day by mentioning the name of the complainant and accused, but the same is lacks and appears to be got up the said document, subsequently, for the convenient of the complainant. How the complainant came to be used of the document sheet dated:23.04.2010, though, it is irrelevant to the said transaction. If at all, complainant was able to pay Rs.4 lakhs to the accused, as he alleged, no impediment to him to produce necessary recognized mode of e-stamp paper by paying necessary fee, but got created to the document sheet, that too, it was dated:23.04.2010 for his convenient, therefore, he avoided to Judgment 28 C.C.No.16097/2014 produce the said document through his evidence in the anticipation of the same. Therefore, it creates doubt, as to its genuineness. That apart, if at all, the said document is 8 years old, definitely, it should be dilapidated condition. But the said document and its recitals appears to be done recently, for the convenience of complainant to prove his alleged transaction. The very act of the complainant is to be deprecated. If at all, complainant able to pay Rs.4 lakhs, what impediment him to create the said document in the stamp paper purchased either in the name of complainant or in the name of accused very particularly on 10.07.2011, therefore, it creates doubt, as to its genuineness.
35. As discussed earlier, if at all, complainant gave money to the accused in the presence of witnesses, definitely, could have been secure the signature of witnesses in order to strengthen the said document, but for the reasons better known to him, the same is lacks, is also one of the strong circumstances to suspect its genuineness. That apart, if at all, secure the witnesses to evidence, could have been prove, but the same is not done. Even there is over written of date, as to the cheque as 22.03.2012, in that regard no counter signature is taken, someone has put initial, it is not explained by the complainant. The complainant has utterly Judgment 29 C.C.No.16097/2014 failed to prove the due execution and issuance of Ex.P11 - hand loan agreement, therefore, the same is not came to the rescue of the complainant in proving the passing of loan of Rs.4 lakhs from his hand to the accused on 10.07.2011.
36. The case and counter cases between complainant and accused since long time it discloses, there was rift between them, therefore, it made one of the ground to the complainant to initiate the present proceedings against the true transaction. Though, he stated, at the time of he gave loan of Rs.4 lakhs, his wife was present, but not examined her, and against his pleading stated, in the presence of witnesses paid money, not cited or examined any other witnesses to the said transaction. The lease agreement was in the custody of complainant held between complainant and accused for payment of Rs.3 lakhs was though alleged to be in the possession of complainant withheld the same, since the accused has initiated the proceedings by way of filing private complaint as per Ex.D10. Perhaps the same instigated the complainant to file the present case by using the cheque given by the accused, while she borrowed loan of Rs.25,000/- and repaid, as admitted by the DW.1 as found in Ex.D1. The accused successfully proved that, it was the loan transaction of Rs.25,000/- held between complainant and accused and she got cleared the Judgment 30 C.C.No.16097/2014 same as per Ex.D1, despite, complainant not returned the same. Even, she stated, despite complainant came as lessee to her house, not paid the balance of Rs.1 lakh, when he himself got wrote in the lease agreement, therefore, she filed the Ex.D10 complaint, hence, the complainant got misused the questioned cheques obtained from the accused in connection to other transaction, then the present complaint. The accused being a woman folk, need Rs.4 lakhs from the complainant being a auto driver, it also creates doubt to the financial capacity of the complainant as well as repayment capacity of the accused. The complainant being an auto driver, mobilized the fund of Rs.4 lakhs and gave to the accused itself created doubt. He utterly failed to prove the mobilization of fund as such, and handed over to the accused. When several banks are there to provide loan, with minimum interest, when there was rift between complainant and accused, then complainant gave money to the accused, as he alleged, created doubt as to the bonafidness of the complainant. Mere because of complainant possessed the questioned cheques at Exs.P1 and P2, which appears her signature, it does not mean that, it was issued by the accused for discharge of existence of legally recoverable debt.
Judgment 31 C.C.No.16097/2014
37. On bear perusal of those cheques, it also discloses, the other writings of the cheques including date, amount and name of the complainant hand writing by the accused. If at all, complainant gave loan of Rs.4 lakhs to the accused, definitely, he took the cheque for same amount, definitely, asked the accused to fill in her hand writing, as she is qualified. But he did not do so, and later for the reasons better known to him got filled the same through the various persons in different hand writing and ink also one of the ground to disbelieve the very contention of the complainant. Even, the accused to avoid rare side of cheque entries, got pasted the same by avoid appearance rare portion is also one of the doubtful circumstances, as to the bonafidness. The fillings of the cheques and filling of counter foils at Exs.P3 and P4, it discloses that, the complainant for his convenient got filled those cheques and presented it for encashment. The very act of the complainant is to be deprecated. As though there is no liability on the part of the accused, he did so by misusing the cheques of accused.
38. No doubt, the non-reply of legal notice, despite, it is service to the daughter of the sister of the accused, who resides in the same plot is not a ground to disbelieve her version. The complainant through out the case has utterly failed to prove the Judgment 32 C.C.No.16097/2014 financial capacity of Rs.4 lakhs and he mobilized the same and paid to the accused, in turn, she got executed Ex.P11 loan agreement and issued questioned cheques for discharge of existence of legally recoverable debt. Hence, the dishonour of those cheques does not creates burden or commit the offence by the accused, as alleged by the complainant for payment of the said money. Mere because of cheques belongs to the accused with her signature itself is not a ground to believe that, for discharge of existence of legally recoverable debt, the accused got issued the same. The complainant utterly failed to discharge his reverse burden to prove the alleged loan transaction. Hence, the accused is entitled for benefit of doubt for acquittal.
39. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
In the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
Judgment 33 C.C.No.16097/2014 "Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
40. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheques bare her signatures, that, does not mean that, the accused issued cheques in discharge of a legally payable debt.
At this stage, this court also relies upon decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act, (26 of 1881). S.138 Dishonour of cheque - Presumptions available to complainant under S.118 and S.139 of Act - Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to Judgment 34 C.C.No.16097/2014 rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
41. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.4 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
42. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, she is not liable to pay Exs.P1 and P2 cheques amount of Rs.4 lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable Judgment 35 C.C.No.16097/2014 evidence that, the accused has borrowed the cheques amount and she is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheques, who is not at all liable to pay the cheques amount. The accused has taken her defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheques for discharge of liability of Rs.4 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Apart from that, in a decision reported in, KCCR 12 (3) page 2057, the Hon'ble Apex Court held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
Judgment 36 C.C.No.16097/2014
43. In the case on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show his financial capacity to lend an amount of Rs.4 lakhs to accused. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheques for discharge of Rs.4 lakhs does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheques for discharge of liability of Rs.4 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
44. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheques Exs.P1 and P2 in discharge of her legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Sections 139 and 118 of Negotiable Instruments Act in favour of the accused.
45. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheques pertaining to the account of the accused is dishonoured and the Judgment 37 C.C.No.16097/2014 requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheques in question were issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
46. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.4 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his case beyond all Judgment 38 C.C.No.16097/2014 reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
47. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 20th day of January - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : C.S.Nagaraj List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques Judgment 39 C.C.No.16097/2014 Exs.P1(a) & P2(a) : Signatures of accused Exs.P3 & P4 : Bank challan counter foils Exs.P5 & P6 : Bank endorsements Ex.P7 : Office copy of legal notice Ex.P8 : Postal receipt Ex.P9 : Professional courier receipt Ex.P10 : Postal Acknowledgment Card Ex.P11 : Hand loan agreement Ex.P11(a) : Signature of accused
List of Witnesses examined on behalf of the defence:
DW.1 : Arati S Patil List of Exhibits marked on behalf of defence:
Ex.D1 : Statement of account
Ex.D2 : CC of order sheet
Ex.D3 : Summons
Ex.D4 : CC of plaint
Exs.D5 & D6 : CC of judgments in C.C.No.6026/2013 &
16567/2014
Ex.D7 : CC of judgment in S.C.No.1711/16
Ex.D8 : Acknowledgment
Ex.D9 : Complaint dtd:19.04.2018
Ex.D10 : CC of order sheet in PCR 19385/11
Ex.D11 : CC of private complaint in PCR No.19358/11
Ex.D12 : CC of FIR
Ex.D13 : CC of 'B' Report
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 40 C.C.No.16097/2014
20.01.2020.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide
separate order.
*****
ORDER
Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence
punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.