Bangalore District Court
Smt.Vinyasa N Prakash vs Smt.C.Indira Priya Darshini on 7 October, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 7th day of October - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.30205/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Smt.Vinyasa N Prakash,
D/o.Late.N.Nagaprakash
Aged about 30 years,
Residing in the house at No.173/A,
5th Cross, Jyothi Nagar,
Chandra Layout,
Bengaluru-72.
(Rep. by Sri.B.G.Thimmaiah, Adv.)
V/S
Accused : Smt.C.Indira Priya Darshini,
W/o.V.Suresh Kumar,
Aged about 50 years,
Residing in the house at Plat No.20,
Kumaran 2nd Street, J.B.Estate,
Avadi, Chennai, Tamil Nadu State-54.
Working address:
Smt.C.Indira Priya Darshini,
Indian Bank, Pattabiram Branch,
At No.9, Pattabiram,
Chennai, Tiruttani Highway,
Tamil Nadu State-600 072.
(Rep.by Sri.B.Janakiram, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.No.30205/2018
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 07.10.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 11.10.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of 3 cheques of Rs.4 lakhs each, in all Rs.12 lakhs.
2. The factual matrix of the complainant case is:
The accused was being very well known person to the father of the complainant by name Late.N.Nagaprakash, while he was working in Indian Bank, as Assistant Manager in Kellys Branch, Chennai, Tamilnadu State. The accused was also working in the said branch.
The complainant has further alleged that, the accused being very well aware of the fact about her father helping nature/tendency, she had approached her father seeking for financial help under the guise of money of her urgent personal Judgment 3 C.C.No.30205/2018 and family financial problems and also for discharge of her family outside financial commitments i.e., for treatment of her father's ill health, for treatment of her mother's Cancer disease, so also for higher education of her son in pursuing Engineering Course etc., from the year 2013 to 2015, on several occasions, frequently, approached her father and had borrowed loan amount more than Rs.12 lakhs.
The complainant has further averred that, her father sourced the loan amount to the accused from his hard earned money which kept for the marriage of the complainant as well as from 3rd parties at a certain rate of interest, as it was agreed mutually between them, as accused was in urgent need of money.
The complainant has further contended that, unfortunately her father succumbing to serious health issues due to failure of multiple organs, died on 06.06.2016, at Vikram Hospital, Bengaluru, his hospital bill for provide treatment were Rs.18 lakhs and this facts known to the accused also. Hence, because of tremendous financial and personal stress to her father while the father of the complainant underwent treatment in the hospital, incessantly both the complainant and her father called the accused and made telephonic conversation through messages Judgment 4 C.C.No.30205/2018 and were requesting for repayment of the balance loan amount, but the accused was giving mere promise to her father that, she would discharge the said loan amount by sell her property at Chennai and she apologized him for being late in making repayment of the loan amount borrowed by her.
The complainant has further alleged that, hence, towards discharge of outstanding principal loan amount of Rs.12 lakhs, which borrowed by the accused from the father of complainant, after her several visits, requests and demands made for repayment, the accused for discharge of her liability on 07.07.2018 towards the settlement of her outstanding balance of Rs.12 lakhs, she gave 3 cheques bearing Nos.767317, dated:24.08.2018, cheque bearing No.767318 and 767319 dated:27.08.2018 respectively, for sum of Rs.4 lakhs each, in all Rs.12 lakhs, drawn on Indian Bank, Tiruninravur Branch, Chennai, Tamilnadu State, towards discharge of the debt borrowed from her deceased father. The accused asked the complainant to present the cheques on the due dates and believing the words and version of the accused, since she had faith on her assurance as per her instructions, the complainant had presented those 3 cheques for encashment through her banker viz., Corporation Bank, RPC Layout Branch, Vijayanagar 2nd Stage, Bengaluru.
Judgment 5 C.C.No.30205/2018 But to utter shock and surprise to see the bank endorsement dated:29.08.2018, those 3 cheques came to be dishonoured for the reasons "Funds Insufficient".
The complainant has further contended that, thereafter, she frequently try to contact the accused seeking for clarification about the dishonour of cheques, again and again accused had avoided to receive her phone calls. But inspite of waiting for payment of the aforesaid cheques amount, the accused has utterly failed to keep up her promise to discharge her liability, she intentionally got issued 3 cheques, despite, knowing she had insufficient funds in her bank account in order cause cheat and play fraud on the complainant, she got issued the said cheques. Without having any alternative, the complainant through her advocate on 10.09.2018 got issued legal notice to her both residential and working address by way of R.P.A.D and the same came to be served on her on 15.09.2018. Thereafter, on 02.10.2018, she gave untenable reply, but not paid the amount covered under the cheques. Thereby, she committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
Judgment 6 C.C.No.30205/2018
3. After receipt of the private complaint, this court 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.
4. In response to the summons, the accused appeared through her counsel and obtained 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, she herself choosen to examined as PW.1 and got marked Exs.P1 to P13. 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 three documents and same are marked as Exs.P14 to P16.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by her was recorded. In support of the defence, the accused herself was examined as DW.1 and got marked Exs.D1 to D3 and also subjected for cross- examination by the advocate for the complainant.
Judgment 7 C.C.No.30205/2018
7. Both side counsels have submitted their detailed written arguments, apart from both side counsels have adduced their oral arguments through video conference.
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, the amount made mentioned in Exs.P1 to P3 cheques for sum of Rs.12 lakhs is the legally existing debt payable by the accused to the complainant?
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
-: UNDISPUTED FACTS :-
10. On going through the rival contentions of the parties, the following points remains undisputed, hence, the same needs no proof. Which are:
Judgment 8 C.C.No.30205/2018 The fact that, one N.Nagaprakash is the father of complainant is not in dispute. The fact that, the said N.Nagaprakash was working as Assistant Manager and accused was working as Clerk in Indian Bank, Kellys Branch, Chennai is not in dispute. The fact that, during his lifetime there were money transactions held between deceased father of the complainant and accused, as narrated in the bank statement of the deceased father of the complainant as well as in the joint account of Smt.Asha Prakash and N.Nagaprakash as well as joint account of complainant and her deceased father as found in Exs.P14 to P16 are not in dispute. The fact that, in the year 2015 itself the very father of the complainant got retired from his service after he transferred from Kellys Branch, Chennai to Virajpet Branch of Coorg District is not in dispute. The fact that, the father of the complainant on account failure of multiple organs, after taking treatment in the hospital and was died on 06.06.2016 is not in dispute. The fact that, sum of the amount has been transferred from the joint account of N.Nagaprakash held with Smt.Asha Prakash, complainant herein as found in Exs.P14 to P16 is not in dispute. The fact that, the Exs.P14 to P16 the bank statements pertaining to the joint account of the names mentioned earlier are not in dispute.
Judgment 9 C.C.No.30205/2018 The fact that, the deceased N.Nagaprakash as per Ex.P14 had joint account bearing No.400649289 with his wife Smt.Asha Prakash and had another bank joint account bearing No.870059383 is not in dispute. The fact that, as pleaded by the complainant, the accused had made repayment of loan to the said joint account as found in Exs.P14 to P16 is not in dispute.
The fact that, the accused used to transfer money for repayment of loan to the joint account held as per Exs.P14 to P16 by way of self voucher, by way of her account used own cheque, by way of cash deposit as well as transferred money through bank account Nos.00400644236, 00602530717 and 00788113676 apart from transferred through vouchers on various dates as found Exs.P14 to P16 is not in dispute. The fact that, through the said modes she used to transfer the account from the branches of St. Peters Engineering College Branch, Chamarajpet Service Branch, Huma R.S.Branch, as found in the bank statements produced by the complainant at Exs.P14 to P16 is not in dispute.
The fact that, as per the said bank statements, on various dates from minimum sum of Rs.10,000/- and at the maximum of Rs.1,50,000/- as found in Exs.P14 to P16 remitted from the said joint account by the deceased N.Nagaprakash to the account of Judgment 10 C.C.No.30205/2018 the accused is not in dispute. The fact that, on 07.07.2018, the complainant herein went to the working place of accused at Indian Bank, Kellys Branch, Chennai, Tamilnadu and there were hot and cold discussion were happened between them is not in dispute. The fact that, on 01.08.2018, the accused lodged a complaint against the complainant herein in Pattabiram Police Station as found in Ex.D1 in a Tamil language, Ex.D1(a) is in its translation version in English language, is not in dispute.
The fact that, as found in Ex.P16 on 23.01.2015 after N.Nagaprakash had transferred to Virajpet Branch, sum of Rs.20,000/- were transferred by the accused herein through her St. Peters Engineering College Branch is not in dispute. The fact that, questioned cheques at Exs.P1 to P3 as well as signatures found therein belong to the accused is not in dispute. The fact that, as per the banker slips at Exs.P4 to P6, the said cheques came to be dishonoured is not in dispute. The fact that, as per Ex.P7 the legal notice issued by the complainant got served on accused and in turn, as per Ex.P12 on 02.10.2018, she got issued reply notice to the complainant is not in dispute. The exchange of WhatsApp messages between complainant and accused through their registered mobile numbers is not in dispute.
Judgment 11 C.C.No.30205/2018
11. 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.
The PW.1 to prove his case choosen to examined herself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P16, they are:
a) Exs.P1 to P3 are the cheques bearing Nos.767317, 767318 and 767319 issued by the accused for sum of Rs.4 lakhs each, in all Rs.12 lakhs, dated:24.08.2018 and 27.08.2018, drawn on Indian Bank, Tiruninravur Branch, Tamil Nadu.
b) Exs.P1(a) to P3(a) are the alleged signatures of accused.
c) Exs.P4 to P6 are the Bank Memos dated:29.08.2018.
d) Ex.P7 is the Legal Notice dated:10.09.2018.
e) Exs.P8 & P9 are the Postal receipts.
f) Exs.P10 & P11 are the Postal Acknowledgment Cards.
g) Ex.P12 is the reply notice dated:02.10.2018 issued by accused through her counsel to the complainant counsel by denying the averments of Ex.P7 legal notice.
h) Ex.P13 is the original death certificate pertaining to N.Nagaprakash issued by Medical Officer, Shivaji Nagar Range, BBMP, Bengaluru and
i) Exs.P14 to P16 are the statement of accounts.
Judgment 12 C.C.No.30205/2018 The PW.1 was subjected to the cross-examination by the advocate for the accused.
12. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed her side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to her as required under Section 313 of Cr.P.C., wherein, she denied the same and gave her statement that:
About 9 years from the father of the complainant, frequently she used to borrowed loan of Rs.35 lakhs and with higher rate of interest, she got repaid Rs.40 lakhs to him. To the said N.Nagaprakash, the accused as a security got issued signed blank cheques. Later, he got transferred to Bengaluru in the year 2010, he not returned her cheques. Whenever she asked, he told her that, he was suffering from ill-health. In the year 2015, he got retired from his serve and since he hospitalized for his ill-health, he not returned the said cheques. Though, she not liable to pay any money filed the false case against her.
13. That apart, she entered into witness box and choosen to filed affidavit evidence to prove her probable defence and on oath she examined as DW.1. No doubt, in this case, the filing of Judgment 13 C.C.No.30205/2018 affidavit by the accused in lieu of her probable defence is not opposed by the complainant. Mere because of she not sought permission under Sections 315 and 316 of Cr.P.C., it does not a ground to outrate reject the probable defence set out by the accused. Mere because Section 145(1) of Negotiable Instruments Act does not expressly permit the accused to filed affidavit evidence, it does not mean that, the court cannot allow the accused to give his evidence on affidavit. By applying the same analogy, unless there is just and reasonable ground to refuse such permission, there is no express bar on accused to give evidence on affidavit either in the accused or in the court.
In view of the order of Hon'ble High Court of Karnataka in Criminal Petition No. 9331-2017 C/w Criminal Petition No. 9332- 2017 dated 02.07.2019 , wherein following the law laid down by the Hon'ble Supreme Court in Indo international Ltd., Another Vs. State of Maharastra & Another,, 2005 Cr.L.J. 208, it was pleased to held that, "The court dealing with a complaint under Section 138 of the said Act of 1881 has an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence witnesses, if any on affidavit". Hence, accept the affidavit Judgment 14 C.C.No.30205/2018 evidence for appraisal of the defence set by the accused, there is no impediment to this court.
14. The accused in her affidavit evidence has contended that, she not borrowed the alleged loan of Rs.12 lakhs from the Sri.N.Nagaprakash. But she contended that, they were working together in a same branch. The accused has specifically contended, she used to borrow money from the deceased N.Nagaprakash and she also repaid all the money so borrowed from him promptly with due interest as per mutually agreed terms, which is clear from the statement of the account of the accused banker held in Indian Bank pertaining to the period from 01.01.2010 to 01.06.2016.
The accused has further contended that, the said Sri.N.Nagaprakash then requested upon the accused to give signed blank cheques as security for the money borrowed, in pursuant of his request, she issued signed blank 3 Non-CTS cheques bearing Nos.767317, 767318 and 767319 on 26.11.2014 from her account held at Indian Bank, on the assurance of Sri.N.Nagaprakash once the amount was paid to him, he returned those cheques to the accused and accused trusted on him. The entire liability towards the said Sri.N.Nagaprakash had been Judgment 15 C.C.No.30205/2018 repaid and he had already retired from his service and settled back to his home town Bengaluru. Despite, several efforts made by the accused to get back those cheques given to Sri.N.Nagaprakash as a security went futile as he had succumbed to serious health problems and eventually he died on 06.06.2016.
The accused has further contended that, she was in Bengaluru from 18.06.2016 to 19.06.2016 to visit her ailing Brother-in-law Mr.Jayakumar, who had admitted in a hospital at Bengaluru. While, she was in Bengaluru, she paid a visit to the house of complainant in order to console for the loss of her father. In the midst of conversation, the accused demanded her security cheques given to father of the complainant and requested to return the same to the accused. The complainant even accepted fact that, her father once told that, accused had repaid all the monies owed to him, hence, the cheques should be returned to the accused and she promised the accused that, she would find the cheques and either she will return the same by post or in person if she had chance to come to Chennai.
The accused has further contended that, after accused returned to Chennai; the complainant neither returned the cheques by post nor come to Chennai. The accused tried en-
Judgment 16 C.C.No.30205/2018 number of times to contact the complainant to remind about her cheques, but she never attended the calls not even once.
The accused has further contended that, on 07.07.2018 the complainant had visited to the bank of the accused at Chennai, where she was working accompanied by her fiancé, instead of returning the cheques to the accused, the complainant demanded excess amount of Rs.4 lakhs for returning the said cheques. When accused had questioned, as to why she demanding excess amount, the complainant got enraged and started to abuse the accused in filthy language in front of her colleagues. Narrating the said occurrence, she had preferred a complaint in Pattabiram Police Station, Chennai on 01.08.2018 against the complainant and to that effect police got issued receipt in CSR No.418/2018. Though, complainant was summoned for enquiry by the Station House Officer, she failed to appear for enquiry.
The accused has further contended that, as alleged in the complaint regarding transaction, execution and issuance of the cheques voluntarily done by the accused is false and never taken place. There is an over writing the name of the complainant in the cheques bearing Nos.767317 and 767318. She must explain about the same and accused did not consent to do so. As such, Judgment 17 C.C.No.30205/2018 complainant has become disentitled to complain against the accused.
The accused has further contended that, complainant has failed to produce any convincing document, whatsoever in the complaint against the accused, about the liability owed by the accused. The signed blank cheque issued to the deceased Mr.Nagaprakash have been misused by the complainant and accused never voluntarily executed and issued the cheques to the complainant. In order to extract money from the accused by way of threatening or black mailing, she used to the blank cheques issued to her deceased father as a security for the liability, which was extinguished in the year 2015 itself. The complainant did not revere the true facts before this court; hence, she is not entitled for any order. Hence, the accused is prayed for pass deem fit or proper orders.
15. Apart from the accused also choosen to produced the documents at Exs.D1 to D3. They are:
a) Ex.D1 is the Xerox copy of complaint lodged by accused herein before the Pattabiram Police Station against the complainant herein.
b) Ex.D1(a) is the English translation version of Ex.D1.
Judgment 18 C.C.No.30205/2018
c) Ex.D2 is the acknowledgment given by the Station House Officer of Pattabiram Police Stationin Tamil Language.
d) Ex.D2(a) is the English translated version of Ex.D2 and
e) Ex.D3 is the bank statement having 81 pages pertaining to the account of deceased N.Nagaprakash.
The DW.1 was subjected to the cross-examination by the advocate for the complainant. Apart from lead defence evidence, the DW.1 through her counsel has produced the citations and relied upon same. They are:
a) Crl.W.P.No.842/2009
b) Crl.A.No.302/2010
c) Crl.A.No.1136/2003
d) Crl.A.No.980/2002
e) 2008 CJ (SC) 825
16. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
17. Accordingly, by virtue of the provisions cited supra coupled with dictums, it made clear that, it is the initial burden on the accused to rebut the case of complainant.
Judgment 19 C.C.No.30205/2018 That apart, in a decisions of the Hon'ble Supreme Court in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s. Dattatraya G Hegde) and 2010 AIR SCW 2946 (Rangappa V/s. Mohan).
"The accused need not enter into witness box and he could rebut the presumption envisage under Section 139 of Negotiable Instruments Act by setting up a probable case. As such, there is no strict rule that, the accused should enter into the witness box in support or proof of his defence. The accused has got every right to prove his defence from the cross- examination of PW.1 or the materials already brought on record. It is also held that, the standard of evidence be to led by the accused is preponderance of probabilities and no proof beyond reasonable doubt. On the contrary, for the complainant he should prove his case beyond all reasonable doubt".
18. As per the said dictum, the accused need not require to enter in to the witness box to prove her probable defence, but she can prove her defence by way of cross-examining the PW.1 and relied upon the documents of the complainant. From the point of above dictum, the non entering into the witness box by the accused is not a ground or hindrance to his probable defence. Therefore, whatever the defence placed by the accused by way of oral say through PW.1 is to be appreciated. Therefore, it made Judgment 20 C.C.No.30205/2018 clear that, the documents relied by the complainant is made by use of the accused while prove her probable defence on account of she not produced her own bank statement, it does not suffice to negativate the probable defence of the accused.
19. It is pertinent to note that, the presumption under Sections 118 and 139 of Negotiable Instruments Act, while live, exist and survive and shall end only, when the contrary is proved by the accused i.e., cheque was not issued for consideration and discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exist.
20. The use of phrase "until the contrary is proved" Section 118 of the accused and used of the words "unless contrary is proved"
in Section 139 of Negotiable Instruments Act r/w the definition "may presume" "Shall presume" has given in Section 4 of Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable it only point out that, the party on whom lies the duty of going forward with evidence on the fact presumed and when that party has produced evidence fairly and reasonably tendering to show that, the real fact is not presumed, the purpose Judgment 21 C.C.No.30205/2018 of presumption is over. It was so observed in a decision reported in 2019 SCC Online MAD 5541, in a case between T.Murali V/s. BMD Hotels and resort Pvt. Ltd.
21. The accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose, accordingly, it made clear that, in the present case on hand, the accused has not taken any plausible defence to attack on the claim of complainant with specific defence.
22. As per Section 116 of Evidence Act, when any act is specifically within the knowledge of any person, the burden of proving that fact is upon him. Therefore, the person who having knowledge of certain facts as to prove the same before the court of law. In a decision reported in (2020) 3 SCC 321, in a case between Vareender Kumar V/s. State of Himachala Pradesh, wherein it was pleased to observed that:
"Criminal jurisprudence mandates balance in the rights of the accused and prosecution."
23. By keeping in the mind of the said dictums as well as the relevant provisions which governs the subject matter of the issue, this court has appreciated the materials available on record coupled with oral as well as documentary evidence. It is the Judgment 22 C.C.No.30205/2018 specific case of the complainant that, when the accused and her father were working together, she took financial assistance from the deceased father of the complainant during 2013-15 more than Rs.12 lakhs as loan amount for the various reasons that, to meet out her urgent personal and family financial problems as well as discharge out side commitments such as, for treatment of her father and mother for cancer disease as well as her son's education in Engineering etc. The complainant has contended, her father lent the huge amount of loan to the accused earned out of his own hard money which kept for the marriage of the complainant as well as from third parties of lent of certain rate of interest as agreed between her father and accused. The complainant has specifically alleged that, her father was suffering from failure of multiple organs and admitted the hospital and the bill was Rs.18 lakhs for underwent the treatment and on 06.06.2016 he died. When complainant and her father called the accused during the conversation through messages requesting for repay the loan amount, she told him that, by sell her property at Chennai would pay the money, but not paid. Finally on 07.07.2018 for payment of Rs.12 lakhs she got issued questioned cheques at Exs.P1 to P3. Despite, it is dishonoured, legal notice Judgment 23 C.C.No.30205/2018 was given to her, she not repaid money, but caused untenable reply. Hence, the complaint.
24. Whereas, the accused got contested the matter from the inception by way of caused reply at Ex.P12 and after receipt of summons choosen to cross-examine the PW.1 and production of documents as well as herself entered into witness box and led evidence and subjected for cross-examination.
25. No doubt, immediately after receipt of legal notice, the accused got issued reply through her advocate as per Ex.P12 dated:02.10.2018. In the first instance by way of causing reply, the accused took up the defence that, she only borrowed loan of Rs.6,25,000/- from the deceased father of the complainant in between 19.09.2013 till 08.02.2015. Against the same, she got repaid Rs.8,35,500/-. In the reply notice it was also contended by her that, while borrow loan from the father of the complainant on interest in some occasions she gave cheques at Exs.P1 to P3 as a security and she got repaid money to him either by way of transferring or by way of depositing etc. punctually and regularly got deposited the monthly interest and capital and she is nothing owe to deceased father of the complainant. Wherein, she alleged that, complainant is neither a payee nor a holder in due course in Judgment 24 C.C.No.30205/2018 the eye of law. In order to appropriate money from accused by way of deposit her cheques without her knowledge and approval got presented the said cheques by committing forgery in her own hand writing by filling the cheques.
26. The accused has also contended that, she is not liable to pay money, the complainant stealing the cheques of accused and filed false case, whatever money borrowed from her deceased father got repaid with interest. Wherein also contended that, the complainant came out to Chennai and threatened the accused with dire consequence, if she is failed to make payments, towards the complainant, hence, the accused on 01.08.2018 lodged a complaint before the Station House Officer of Pattabiram Police Station and CSR No.418/2018 was registered. On going through the said reply notice, the accused had admitted the borrowing of loan for the tune of Rs.6,25,000/- from the deceased father of complainant and took up the defence that, on the security of signed blank cheques at Exs.P1 to P3 and later through the recognized mode either by way of transfer or deposit in the account of the deceased father of the complainant, she got cleared with interest. From the say of PW.1 it discloses, whatever the loan she borrowed was Rs.6,25,000/-, but with interest she got repaid Rs.8,35,500/-.
Judgment 25 C.C.No.30205/2018
27. That apart, to the objection filed by the accused to the application submitted by the complainant under Section 143(a) of Negotiable Instruments Act, she has made some manual calculation and contended that, she borrowed the loan of Rs.34,10,000/- from the deceased father of the complainant on various dates and in turn, with interest she got repaid sum of Rs.41,51,700/-. Both the contentions taken by the accused, she not denied in the witness box. In the witness box on oath she denied the alleged due of Rs.12 lakhs payable by the accused as loan borrowed from her deceased father and now she being a legal heir, the accused not liable to pay the said money, but whatever the loan she got received from the deceased father of the complainant, it was cleared with interest as per the entries of her bank during 01.01.2010 to 01.06.2016. The accused during her cross-examination has categorically made some admissions as to borrowing of amount and its repayment. During the course of cross of DW.1, she categorically deposed that, from 2004 till 2015, she admittedly used to borrow loan from the deceased N.Nagaprakash on several occasions. Even she deposed, for meet out family necessity including hospital expenses or any other urgency she used to borrow loan from the deceased.
Judgment 26 C.C.No.30205/2018
28. She categorically denied that, whenever accused borrow the loan from deceased, he used to sent money to the accused through the joint account of deceased and Smt.Asha Prakash as well as the joint account of complainant and deceased. But the DW.1 has volunteers that, earlier deceased N.Nagaprakash sent money from his personal salary account and later by under virtue of the retirement he converted his joint account with Smt.Asha Prakash. By deposing so, she admitted that, earlier deceased sent money to accused through his account, later it was converted as joint account with his wife Smt.Asha Prakash. Therefore, she not denied that, whatever the statement she produced pertaining to the joint account of deceased and Smt.Asha Prakash is also the document at Ex.P14. She categorically deposed that, deceased N.Nagaprakash before and after his retirement used to gave loan to the accused from his joint account only with Smt.Asha Prakash and complainant herein. The accused on the one hand admitted, she got receipt of loan from deceased N.Nagaprakash, but categorically denied it was joint account. But on production of Exs.P14 to P16 it made clear that, earlier deceased N.Nagaprakash had joint account with his wife Smt.Asha Prakash and later with his daughter - complainant herein as found in Exs.P14 to P16. Therefore, it made clear that, Judgment 27 C.C.No.30205/2018 deceased N.Nagaprakash was one of the account holder with his wife and daughter as found in Exs.P14 to P16 is not been denied by the accused.
29. The DW.1 during her cross-examination has deposed that:
"It is not true to suggest that, from the joint account of deceased Nagaprakash and Asha Nagaprakash bearing account No.400649289 sum of Rs.35,19,000/- were transferred to my account bearing No.0040064236 from 2013 to 2015. The witness volunteers that, it is true to sent amount to my account but it was not the joint account as suggested. To the witness confronted the bank statement, the same were admitted by the witness, therefore it is marked as Ex.P.14. The witness volunteers that, copy of the said statement I have already produced before this court."
30. On going through the above testimony of DW.1, though she deposed, it is not true to suggest that, from the joint account of deceased N.Nagaprakash and his wife Smt.Asha Prakash bearing No.400649289 sum of Rs.35,19,000/- were transferred to the account of the accused bearing No.0040064236 from 2013-2015, later, she volunteers that, it is true to suggest sent the said amount to the account of the accused. But she stated, it was not Judgment 28 C.C.No.30205/2018 the joint account of the deceased N.Nagaprakash with his wife and daughter. When Ex.P14 document which is none other than bank statement were confronted, she got admitted and also stated she also produced the same copy. On going through the Ex.P14 it made clear that, joint account of deceased N.Nagaprakash and Smt.Asha Prakash is been seen. The Ex.P14 also discloses, it was the staff account. From which it made clear that, the said account earlier opened in the name of deceased N.Nagaprakash being a staff. Later it was converted into joint account. Whatever the bank statement at Ex.P14 is been produced by the complainant the same is also produced by the accused at Ex.D3. The Ex.P14 is pertaining to the period 01.03.2013 to 31.12.2014. The Ex.D3 is pertaining to 01.01.2010 to 01.06.2016. Therefore, Ex.P14 is the material document, which reveals the transformation of portion of amount from the account of deceased N.Nagaprakash to the account of accused stands proved. Likewise, Ex.P15 also the bank statement of deceased N.Nagaprakash and Smt.Asha Prakash pertaining to same account number made mentioned in Ex.P14 pertaining to 01.03.2013 to 31.12.2014. The Ex.P15 is the joint bank account of complainant with her deceased father pertaining to the period from 01.01.2013 to 30.06.2016. Therefore, the above testimony Judgment 29 C.C.No.30205/2018 of PW.1 discloses, the monetary transaction held between deceased N.Nagaprakash and accused only.
31. On going through the pleadings and contention of the complainant it also reveal that, the complainant is not taken up any contention as to along with her deceased father, she also lent money through her joint account to the accused. During the cross-examination of DW.1, she deposed that, she does not remember that, from the joint account of deceased N.Nagaprakash and complainant bearing No.870059383 sent sum of Rs.6,32,700/- to her account during 2013-15. When the bank statement tendered to her, she admitted, therefore, the same got marked at Ex.P15 and P16. The DW.1 volunteers that, whatever the amount so received from deceased N.Nagaprakash, had repaid by her to the joint account of N.Nagaprakash and Smt.Asha Prakash. By taking such contention, the accused also attack on the claim of complainant, as to whatever the amount transferred by deceased N.Nagaprakash to his joint account held with his wife Smt.Asha Prakash had been repaid by the accused. It is necessary to reproduce the testimony of DW.1 that:
"I am not sure that, total so I borrowed as per bank statement at Ex.P.14 to Ex.P.16 amounting to Judgment 30 C.C.No.30205/2018 Rs.41,51,700/-, the witness volunteers that, the said Nagaprakash has not paid the money at one time, but whenever he lent money to me after I repaid the same only, then he lent the fresh loan. It is true to suggest that, all the time I have repaid whatever the loan borrowed from Nagaprakash through bank transaction only. I have not produced documents as to the repayment made by me as such. Witness volunteers that, whatever the payment I made to the joint account of Nagaprakash, I revealed the payment made by me. It is true to suggest that, I have not produced my bank statement but produced the bank statement of deceased Nagaprakash."
32. On going through the testimony of DW.1, it was suggested to her that, as found in Exs.P14 to P16, she borrowed the loan of Rs.41,51,700/-. But she deposes, she is not sure that, but volunteers that, deceased N.Nagaprakash had not paid the said money at once, but whenever he lent money to her, after its repayment made by her to the deceased N.Nagaprakash only got paid fresh loan. By deposing so, she taken up the contention that, whatever the portion of loan amount she borrowed earlier from the deceased N.Nagaprakash, after its repayment only the complainant got paid fresh loan to her. Thereby, she has strongly Judgment 31 C.C.No.30205/2018 contended that, once, she not borrowed the huge loan of Rs.41,51,700/-, but in all she got received same and claiming it was also repaid to him. More categorically she admitted that, all the time she had repaid, whatever the loan amount borrowed from deceased N.Nagaprakash through her bank transaction only. By deposing so, she has categorically deposed, she did repayment through bank transaction only. She clearly admitted in that regard, she not produced any document, but stated, whatever the payment she made to the joint account of deceased N.Nagaprakash is been produced by her. Thereby, she strongly contended whatever the bank statement produced by her pertaining to deceased N.Nagaprakash held with his wife Smt.Asha Prakash and complainant herein are reflected the payments made by her.
33. On going through the said cross of DW.1, the accused has admitted in all borrowing loan of Rs.41,51,700/-. In her further cross-examination, she has deposed that:
"It is false to suggest that, out of the total loan amount of Rs.41,51,700/-, only I had transferred sum of Rs.17,00,000/- to the joint account of deceased Nagaprakash and complainant. According to me, I have no dues payable either to the deceased Judgment 32 C.C.No.30205/2018 Nagaprakash or the complainant. It is false to suggest that, still I am liable to pay sum of Rs.27,00,000/- to the complainant herein and deceased Nagaprakash. It is false to suggest that, in order to skip from my liability to pay the cheque amount I have deposed falsely."
34. The DW.1 during her cross-examination, she has denied the suggestion made to her that, out of the borrowing loan of Rs.41,51,700/-, she only transferred sum of Rs.17 lakhs to the joint account of the deceased N.Nagaprakash and complainant herein. By way made such suggestion to DW.1, the complainant has categorically admitted the receipt of Rs.17 lakhs from the accused through the joint account of her with deceased N.Nagaprakash. The DW.1 has specifically stated that, she is not liable to pay any sum to the deceased N.Nagaprakash or complainant and denied the liability suggested by the complainant for the tune of Rs.27 lakhs to the deceased N.Nagaprakash. She also deposed as false that, in order to skip away from her liability she deposed falsely.
35. From the said evidence of DW.1, it made clear that, Rs.17 lakhs amount paid by the accused is reflected in Ex.P16, the joint account of complainant with her deceased father. Thereby, categorically admitted the payment of Rs.17 lakhs by the accused Judgment 33 C.C.No.30205/2018 to the complainant and her deceased father. The above testimony also revealed to case suggested by the complainant that, accused is still liable to pay Rs.27 lakhs. If at all, her contention is, the accused is liable to pay sum of Rs.27 lakhs, whether includes or exclude the cheques amount of Rs.12 lakhs is not been suggested to DW.1. Even in the complaint itself she vaguely contended that, during 2013-15 deceased father on several occasions lent Rs.12 lakhs and more, she not specified exactly what was the loan amount lent by her deceased father to the accused. If at all, it was due of Rs.27 lakhs paid by deceased to the complainant, definitely, the same could have been pleaded and prove, but for the reasons better known to complainant, not whispered anything in the legal notice, complaint and affidavit evidence, but contrary to the same were suggested to DW.1. Therefore, the liability of Rs.27 lakhs whether includes cheques at Exs.P1 to P3 or not, is not been satisfactorily explained by the complainant. The DW.1 has denied the suggestion made by the complainant.
36. The DW.1 has categorically deposed that, she caused reply at Ex.P12, wherein, she admitted, the mentioning of the receipt of loan of Rs.6,25,000/- from the complainant, against the same, she got repaid Rs.8,33,500/- to the complainant is not been denied by Judgment 34 C.C.No.30205/2018 her. But accused had deposed voluntarily that, she has taken random from her bank statement and mentioned as such in her reply notice. She also stated, some part only she had taken and mentioned in reply notice. By way of deposing so, she stated that, whatever the amount she made mentioned in her reply notice at Ex.P12 is only mentioned in random and admittedly whatever the amount so received and repaid is not been mentioned is been admitted.
37. Even the DW.1 has clearly admitted in the objection to the application filed by the complainant under Section 143(a) of Negotiable Instruments Act, she also admitted as true that, she mentioned Rs.39,06,496/- have been repaid. Even she also admitted that, she only borrowed the loan of Rs.34,10,000/-. But categorically denied the borrowing of loan of Rs.41,51,700/- from the joint account of deceased N.Nagaprakash with his wife and daughter. The evidence of DW.1 though appears to be inconsistence, but it clearly reveal that, the financial transaction held between deceased N.Nagaprakash with accused. More categorically her contention as to payment of Rs.17 lakhs is been proved by way of admission from the side of complainant to the joint account of deceased N.Nagaprakash with complainant herein.
Judgment 35 C.C.No.30205/2018
38. In order to show that, against the total amount of Rs.34,10,000/- she is claiming got repaid Rs.39,06,496/-. By deposing so, she categorically admitted totally borrowing of loan of Rs.34,10,000/-. But the complainant has not specified, on which score as alleged that, deceased N.Nagaprakash had lent loan of Rs.41,51,700/- to the accused and the accused is still liable for pay Rs.27 lakhs. Even no proper suggestion is made, on which date, the said huge amount was transmitted by the deceased N.Nagaprakash to the account of accused. Even no specification from the point of entries available from the joint bank statement of the deceased N.Nagaprakash with his wife and daughter, as to create liability on the accused. It is significant fact to note that, the accused has taken up the specific defence that, after clearing earlier loan only she borrowed subsequent loan. On meticulous perusal of the Exs.P14 to P16 pertaining to the joint account statement, it also revealed that, the accused on several occasions through her bank account bearing Nos.0040064236, 00602530717, 870059383 and 00788113676 as well as by way of self voucher or her account through nor by deposit cash to the said joint account on various dates through various branches got deposited huge amount in the joint account of deceased N.Nagaprakash.
Judgment 36 C.C.No.30205/2018
39. On going through the bank statement it also discloses, whatever the loan borrowed by the accused from deceased N.Nagaprakash got repaid in installments. Thereafter, it also discloses, borrowing and repayment were made. Therefore, it discloses, since earlier loan was cleared by the accused, the deceased N.Nagaprakash appears to be lent small portion of amount to the accused on the subsequently. The accused has contended that, after clear the earlier loan, only the deceased N.Nagaprakash was used to lent loan afresh subsequently, otherwise, question of go on lent loan years together as pleaded during 2013-15 or as suggested to DW.1 during 2003-2011 does not arise. Since, the accused was repaid with interest, the deceased N.Nagaprakash was went on paying money to the loan to the accused on installments. Even what exact amount was lent by the deceased N.Nagaprakash to the accused with its particulars has not been pleaded and proved by the complainant. The accused apart from production of the bank statement of the deceased, as it reflected the payment made by her, though she not produced her bank statement, the production of Exs.P14 to P16 is very much enough to reflected the transaction held between complainant and accused. In order to show that, the accused is liable to pay Rs.12 lakhs which covered under the Judgment 37 C.C.No.30205/2018 questioned cheques, the complainant has not proved the alleged lent of loan more than Rs.12 lakhs in between 2013-15 or the alleged lent of loan of Rs.41,51,700/- is not been proved. Years together there were lent of loan and its repayment were made as found in bank statements. Therefore, it is the complainant needs to explain what was the real transaction held between fasther of the complainant and accused and exactly what amount was lent as loan and what amount was repaid by the accused is not been satisfactorily demonstrated.
40. No doubt, the accused as stated regarding payment made to deceased N.Nagaprakash through her bank account, it reflected in her statement. No doubt, she has not produced her bank statement. She has categorically contended, through various source as well as her branch or other branches she got repaid money. The same is reflected in the bank statement of the deceased N.Nagaprakash and produced the same. More so, whatever the exchanges of money between complainant and accused were reflected in the bank statement. The said bank statement does not reveal, the accused was borrowed the loan of Rs.41,51,700/- or her liability of Rs.27 lakhs nor the liability of Rs.12 lakhs covered under the questioned cheques as the case put forth by the complainant. If at all, the deceased Judgment 38 C.C.No.30205/2018 N.Nagaprakash was lent the huge amount of Rs.41,51,700/- definitely, the complainant must plead and prove. Even exact amount of payment of loan to accused is not been pleaded. Against the pleading itself contradictory suggestion were made as to the liability of the accused of Rs.27 lakhs, despite, she got repaid Rs.17 lakhs to the complainant. But the accused has denied the same and contended, she borrowed loan of Rs.34,10,000/- on various dates and with interest, she go repaid Rs.39,64,091/-. Therefore, against the bank statement the complainant's father was due sum of Rs.12 lakhs from the accused which covers under the questioned cheques at Exs.P1 to P3 is require to be proved by the complainant. Whatever the amount the accused got received form the deceased N.Nagaprakash, on various dates it was repaid by her as found in bank statement produced by complainant itself at Exs.P14 to P16. The accused has denied the liability of Rs.12 lakhs covered under the cheques, therefore, though she took inconsistence defence, it probablize the defence taken by the accused which attack on the claim of complainant. Therefore, it is reverse burden on the complainant to prove her case beyond the reasonable doubt..
41. That apart, it is significant fact to note that, the complainant has not admitted the particulars of the payment made by the Judgment 39 C.C.No.30205/2018 accused. But suggested to DW.1 that, she had repaid sum of Rs.17 lakhs and balance has to be paid. During the course of cross of DW.1, it was suggested to her that, whatever the deposit amount in the statement of the deceased N.Nagaprakash is not made by the accused; it was made by other borrowers of the deceased N.Nagaprakash. By suggesting so, the complainant has denied what ever the payment made by the accused as found in the bank statement of the deceased N.Nagaprakash with Smt.Asha Prakash, as produced at Ex.D3. On going through the Ex.D3, it was the joint account bank statement pertaining to deceased N.Nagaprakash and his wife Smt.Asha Prakash pertaining to the period from 01.01.2010 to 01.06.2016. It is significant fact to note that, the very copy is also produced by the complainant as per Exs.P14 and P15. On going through the said statement, the complainant's advocate has suggested to DW.1 that, the accused wrongly projected that, whatever the payment made by other in the joint account of deceased N.Nagaprakash and Smt.Asha Prakash, as it was the payment made by the accused. Thereby, the complainant has disputed, whatever the payment made by the accused through various banks, various accounts as well as various mode as made mentioned in the undisputed paras, then how the complainant has assessed that, Judgment 40 C.C.No.30205/2018 the accused had only paid Rs.17 lakhs as against the total loan she borrowed. This court has minutely perused the necessary entries found in Exs.P14 to P16 as well as Ex.D3 and convinced that, the accused by way of voucher, cash deposit, account transfer by own cheques, through other accounts, through various branches had deposits or transfer huge amount in the joint account of deceased N.Nagaprakash held with his wife Smt.Asha Prakash and daughter complainant herein. The complainant has not whispered anything as to the said payments were made by the accused through various modes, though reflects the name of the accused, her account number. Therefore, there is no base in suggesting to DW.1 that, she took up the entries with regard to the deposit made by others and claimed repayment were made to the deceased father of the complainant is have no significance at all.
42. The necessary bank entries found in Exs.P14 to P16 coupled with Ex.D3, as they have its own significance and require to be place reliance as to accept the payment made by the accused. Though complainant has denied, the accused has not made payment as such, therefore, she avoided to produce her bank statement. When the document produced by the complainant at Exs.P14 to P16, it is crystal clear, as to reflection of payment made by the accused through various modes, she Judgment 41 C.C.No.30205/2018 need not require to produce her own bank statement. If at all, the Exs.P14 to P16 and Ex.D3 does not reflect the account number and name of the accused in respect of the various payments made by her, then there would be some reason in suggesting so. The very statement clearly manifests the name of the accused as to the payment made by t accused to the joint account of complaint with his father and mother. Therefore, those documents are material piece of documents, which reflects the repayment made by the accused. Even in respect of those entries no suggestion is made to DW.1, as to repayment were made by the accused against which portion of the loan or interest is not been suggested. Therefore, the documentary evidence and its necessary entries maintained by the very banker of the deceased N.Nagaprakash and accused are from relevant piece of evidence which establishes the repayment made by the accused. If at all, the complainant not accepted the entries made in those document, on which basis the complainant has suggested to DW.1 that, the accused only repaid Rs.17 lakhs as against the alleged borrowing of loan of Rs.41,51,700/-. The accused categorically denied that, except through bank modes she never paid money to the deceased N.Nagaprakash by way of cash. Therefore, whatever the entries found in the joint bank statement Judgment 42 C.C.No.30205/2018 produced at Exs.P14 to P16 as well as Ex.D3 clearly manifest the repayment made by the accused. It is significant fact to note that, by denying or clarifying the said payment adjusted to which portion of loan or interest is not been suggested to DW.1. Thereby, those documents prima facie discloses, the repayment of loan by the accused to the deceased N.Nagaprakash joint account.
43. It is significant fact to note that, those bank statements clearly revealed that, deceased N.Nagaprakash used to lent the loan to the accused as suggested by the complainant to the DW.1 commencing from 2004-2015. The accused categorically admitted the borrowing of loan. It is significant fact to note that, the complainant has not made any specific allegation against the accused, as to how much she borrowed loan from her deceased father, but vaguely she pleaded that, more than Rs.12 lakhs she borrowed. If her father was lent the loan to the accused, it was the transaction inter se between her father and accused. Her father is no more. It is not the contention of the complainant that, in respect of the alleged payment made to the accused, her father had maintained necessary ledger book or any other document. Even the accused has not contended as such. Therefore, it the complainant's father and accused needs to explain the particulars Judgment 43 C.C.No.30205/2018 of loan transaction held between them. No doubt, the father of the complainant is no more. When she made serious allegation against the accused from the point alleged monetary transaction held between he deceased father and accused, she must know the better particulars. At least, by calculating the exchange of money in the account of her father with the accused, she needs to place necessary explanation. In that regard, no document has been produced by the complainant. As the father of complainant is no more, the complainant being stepped in to his shoes brought this case, hence, she needs to explain the particulars of the transaction. In that regard, there is specific explanation is found in the pleading or in the evidence of PW.1 or in suggesting to DW.1.
44. No doubt, there was discrepancy in the probable defence taken by the accused in the reply at Ex.P12 as well as the contention raised in the objection filed by her to the application filed by the complainant under Section 143(a) of Negotiable Instruments Act. In view of the clear cut admission made by the accused in her objection as well as cross-examination, she categorically deposed, she borrowed the loan of Rs.34,10,000/- only from the deceased N.Nagaprakash and against the same, she got repaid Rs.31,06,496/-. She categorically denied the borrowing of loan of Rs.41,51,700/-. Even it is not the case of Judgment 44 C.C.No.30205/2018 complainant that, her father was lent the said huge amount of loan to the accused. If at all, it was paid to the accused as such, in the absence of her father, she needs to produce necessary documentary evidence or oral evidence, but the same is lacks.
45. The accused has relied upon Ex.D1 complaint lodged before Pattabiram Police Station and its translated version produced at Ex.D1(a). On going through the said complaint, it discloses, during the life time of deceased N.Nagaprakash, he took 5 cheques for Rs.5 lakhs, despite, the accused got repaid money and requested for return the said cheques, he told her that, he will cancel the same. On account of the friendship, she believed on him. After his death, the complainant came to her working place at Chennai on 07.07.2018 scold her among public with strong and loud voice degraded her and demanding to give Rs.6 lakhs to her. The said complaint also found the allegation against the complainant that, complainant along with another came and made such threats in the bank under the threat of them, she gave in writing as they told. By contending so, she made serious allegation against the complainant on 07.07.2018, she came along with another person to the bank of accused and scold her and got obtained paper in writing. It is pertinent to note that, the complainant had visited the bank of accused on 07.07.2018 is Judgment 45 C.C.No.30205/2018 not been disputed. Even the PW.1 has admitted that, the said jurisdictional Police have informed the complainant based on oral complaint of the accused whenever she comes to Chennai asked her to come to the Police Station. Thereby, it made clear that, the complainant visited the bank of accused on 07.07.2018 and in turn, she lodged complaint as per Ex.D1 is not in disputed. Unless the complainant approached the accused, it was no need to her to lodge complaint for the allegation made mentioned therein. As per Ex.D1 it discloses, complainant went there and demand Rs.6 lakhs and also alleged got obtained one document from the accused in writing, as she told. But no such document is been produced by the complainant. If at all, any document is secure by the complainant as such as security either for undertaking or acknowledging the liability of the accused, she could have been produce before this court, but no such document is been placed. Unless produced those document, it does not warrant any appraisal of the same.
46. On going through the pleading of the complaint, she stated, when her father was hospitalized before his death, she and he called the accused and also made conversant through massages and was requesting for repayment of balance loan amount. Though, the complainant has pleaded as such, in order to show Judgment 46 C.C.No.30205/2018 that, she made telephonic conversation with accused and also with her father are exchanged messages, she not marked any documentary evidence before this court.
47. On going through the case records it discloses, the complainant got produced the WhatsApp messages exchanges between complainant and accused in between 17.04.2016 to 10.08.2016 in Xerox. The said document is not been marked by the complainant or the accused. It is pertinent to note that, the said document is obtain through electronic media, therefore, to consider it as evidence, the compliance of Section 65(b) of Evidence Act is must, therefore focus on the same as evidence does not arise. However, during the course of address the arguments by both side, they have touched the Xerox copies of WhatsApp messages exchanged between complainant and accused. Even the same is reflected in the written arguments of the both side. Since both the parties have made remarks on the said exchanges of messages those court needs to take judicial note on the same about the transaction held between complainant and accused at undisputed point of time. On going through the Sl.No.42 of the message dated:16.08.2016 exchanges between complainant and accused, it runs thus:
Judgment 47 C.C.No.30205/2018 "Mam I will call tonight without fail please....... Wat is Ur drama all about??? I have never seen a shameless lady like you... god II never forgive u... U legal liability face d consequences very soon... I'm presenting Ur old cheque tmrw in a diff branch.. let's c hw much dram more legal liability u do.."
48. On going through the said message it discloses, in response to the message sent by the accused, the complainant has reply by stating supra. Wherein, the complainant apart from mention other words also, has heavily come down on the accused even threatened that, she is going to present the old cheque of the accused in a different branch. Wherein, also contended, accused will face the consequences very soon.
49. It is significant fact to note that, by sent the message the complainant has clearly admitted, she is going to present the old cheque of the accused tomorrow in a different branch let's how much drama more it will you do. By sent a message at undisputed point of time that, on 16.08.2016 itself the complainant had admitted she had old cheques of the accused and threaten the accused that, she is going to present the said cheque through various banks. If at all, as alleged by the complainant, accused gave the questioned cheques at Exs.P1 to P3 on 07.07.2018 at Judgment 48 C.C.No.30205/2018 Chennai, the said message reveal that, on 16.08.2016 itself she possessed the old cheque of the accused. When those cheques came to be in possession of the complainant is also not been disclosed and the fate of the said cheque is also not been explained. Therefore, the said messages discloses prior to the alleged issuance of questioned cheques on 07.07.2018, the complainant already possessed old cheques of the accused. When the complainant was not had personal transaction with the accused, how she came to be possessed the old cheques of the accused other wise through her deceased father is not been explained by her. The said message discloses, prior to the alleged issuance of questioned cheques the complainant already possessed old cheques of the accused. If at all, she already possessed old cheques as such, as on 16.08.2016, that too, 2 years prior from the alleged date of issuance of cheques on 07.07.2018 itself creates doubt as to the bonafidness of the complainant.
50. Though, the said WhatsApp messages discloses, the exchange of harsh words by the complainant for demanding money from the accused and the request made by the accused could have been months together.
Judgment 49 C.C.No.30205/2018
51. During the course of arguments, the advocate for the complainant has focused on the message sent by the accused mentioned in Sl.No.54 at 2.47 p.m. and submitted that, accused herself has admitted that, actual amount payable is only Rs.6 lakhs principal, but she will pay maximum amount that is possible to clear off. She also stated that: "I still say if u present cheque you are not letting me way to avail loan, then my way will be blocked. I don't want make things complicated but your intention is to punish me or to settle things. I am a human being I can face only Max I can bare not always in office at home outside etc. in one stage I have to take extreme end which is not good for anyone. Its not joke. One day you asked me to end my life like my husband OK for money sake that too after payig interest for so many years. Please think and decide yourself please please please......."
52. Further in the said message the accused was also contended, if complainant presented the cheque it will in let the accused avail loan have then she will be blocked. Against the said message the complainant had replied that, "Hello madam u have to pay 10 lakhs..... I'm leaving u vth easy 6 lakhs. Don lie pls i have a letter from u saying u huge to pay ujs 10 lakhs n also my dad has Judgment 50 C.C.No.30205/2018 told under Section 138 of Negotiable Instruments Act.... Such u cheap women u r.... Don cheat us".
53. The complainant in response to the message of the accused as stated that, accused have to pay Rs.10 lakhs and she leaving the accused with easy Rs.6 lakhs do not like please I have letter from the accused saying the accused have to pay Rs.10 lakhs and also her dad as told them. The said exchange of matter also reveals that, whatever the contention of the accused about payment of Rs.6 lakhs is denied by the complainant. The complainant has stated, accused needs to pay Rs.10 lakhs in that regard, she had executed the letter. Unless having the letter, why the complainant had sent a message as such is not been explained. The complainant has not admitted the liability of the accused was Rs.6 lakhs to saying that, she needs to pay Rs.27 lakhs as suggested during the course of cross of PW.1. The said messages since the complainant has not admitted the liability of Rs.6 lakhs restricted the claim of Rs.6 lakhs does not arise. Since, the complainant has projected different amount in different stages as due payable by the accused. The said WhatsApp messages discloses, the complainant liable to pay Rs.10 lakhs in that regard, she executed a letter. Therefore, if at all, complainant had a letter as such, definitely, it could be one of the best piece of Judgment 51 C.C.No.30205/2018 evidence produce before this court to draw necessary inference, but for the reasons better known to the complainant, she not produced the same.
54. In the message No.55 dated:06.09.2016 runs thus:
"Hello madam u have to pay 10 lakhs.... I'm not leaving u vth easy 6 lakhs.... Don lie pls I have a letter from u saying u have to pay under Section 138 of Negotiable Instruments Act 10 lakhs n also my dad has told under Section 138 of Negotiable Instruments Act.... such a cheap woman u r.... Don cheat under Section 138 of Negotiable Instruments Act."
55. The said message sent by the complainant to the accused against demanding the accused to pay Rs.10 lakhs and not let the accused for payment of Rs.6 lakhs, oftenly she go on stating that, accused liable to pay Rs.10 lakhs. If at all, as on 06.09.2016 it was Rs.10 lakhs, then how as per Exs.P1 to P3 cheques it becomes Rs.12 lakhs or as suggested to DW.1 it becomes Rs.27 lakhs, it also not been satisfactorily explained. The said exchange of messages though not marked by both the sides, this court has taken judicial note and made the passing remarks as independently both have choosen to relied upon same, while address the argument and referred in their written argument. However the said Xerox copies of the WhatsApp messages Judgment 52 C.C.No.30205/2018 exchanged between complainant and accused discloses another fact of the transaction. Even the said document allows to draw the inference that, in the year 2016 itself the complainant already possessed the old cheques of the accused. Therefore, there is some strength in the probable defence taken by the accused as to misuse of the signed cheques of the accused. When there was hot discussion gone through exchange of WhatsApp message as such, is their any prudent man once again though knew that complainant already possessed old cheques came forward to pay another 3 cheques on 07.07.2018 as alleged by the complainant itself creates doubt. If at all, accused gave any cheque on 07.07.2018 to the complainant definitely while she lodges complaint as per Ex.D1 definitely, she could have narrated the things. But she not made mentioned therein about a hand over any cheque afresh on 07.07.2018. Therefore, it also one of the strong circumstances needs to draw the presumption that, accused on 07.07.2018 not handed over any cheques as alleged by the complainant, therefore, she not whispered anything in the Ex.D1 complaint lodged by her.
56. In the Ex.D1 accused alleged, complainant on force took writing on the document. The complainant has not whispered anything about the said document. But WhatsApp messages Judgment 53 C.C.No.30205/2018 disclose, complainant got possessed one letter. Therefore, some reliance has to be placed on the probable defence of the accused that, the complainant claimed to be possessed some document which reveals the monetary transaction held between either with deceased father of complainant by the accused or after his death the accused if any document got executed by acknowledging her liability payable to the deceased N.Nagaprakash or to the complainant definitely, without their being production of the said documents why the complainant got exchanged the messages in WhatsApp is also created doubt. Therefore, the complainant not choosen to mark the said WhatsApp messages documents before this court. The said document itself is one of the doubtful circumstances created to disbelieve the alleged liability fixed by the complainant on the accused emerged from the Exs.P1 to P3 cheques.
57. The DW.1 during the course of her cross-examination has strongly attack on the claim put forth by the complainant by way of suggestion. She has withstood her contention stating that, whatever the amount she borrowed from deceased N.Nagaprakash got repaid. She categorically deposed she ever borrowed the huge amount of loan of Rs.41,51,700/- in one lumpsum. The documentary evidence relied by both the parties Judgment 54 C.C.No.30205/2018 discloses, the deceased N.Nagaprakash on various dates from minimum Rs.10,000/- to an extent of maximum Rs.1,50,000/- on various dates years together got paid money to the accused those statements also discloses, whenever the payment made by the complainant first to the accused, in the subsequent dates accused to an extent possible to her to pay the principal or interest. In order to calculate what was the total amount lent by the deceased N.Nagaprakash to the accused, no calculation were made, no particulars were suggested as to alleged lent of its repayment. What was the small portion of loan lent by the complainant, oftenly the accused repaid the same and later obtained fresh loan. Therefore, it is the complainant needs to furnish better particulars in order to fix liability.
58. On going through the probable defence of the accused it also reveal that, on 07.07.2018, she alleged complainant came to her bank and made threat and got hand writing of the accused on one document. She not stated anything about handed over the questioned cheques on the said day. When there was rift between complainant and accused as found in the WhatsApp exchange message, was there any chance of the accused got issued cheques at Exs.P1 to P3 by mention the date:24.08.2018 and for another 2 cheques mentioned the date:27.08.2018 itself Judgment 55 C.C.No.30205/2018 creates doubt. Therefore, as per Ex.D-1 on:07.07.2018, the complainant and another came to the bank of the accused and made galata, then, the accused lodged complaint on 01.08.2018. Thereafter, the questioned cheques at Exs.P1 to P3 came into light, by mention the date. If at all, the cheques already possessed by the complainant definitely, she could have initiate necessary action much earlier and no needs to wait till accused lodge complaint at Ex.D1 on 01.08.2018. Because of accused lodged complaint as per Ex.D1, complainant perhaps put act on the security cheques kept with her obtained through unexplained source. Thereby, the accused has successfully proved her probable defence which destroyed the very case of complainant. Therefore, in order to prove the liability covered under the Exs.P1 to P3 cheques, it is the complainant needs to establish her case beyond the reasonable doubt. By made out probable defence doubtful circumstances accused has established that, the amount covered under the cheques at Exs.P1 to P3 Rs.4 lakhs each is not the existence of legally recoverable debt, hence, she is not liable to pay the same. As per Sections 118 and 139 of Negotiable Instruments Act, it is the reverse burden casted on the complainant to prove her case beyond the reasonable doubt.
Judgment 56 C.C.No.30205/2018 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 another 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 conduct and public and private business) -
Evidence Act, 1872 - Section 114 - Presumptions of fact under".
Judgment 57 C.C.No.30205/2018 Added to that, in a 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".
59. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused. As per the said dictums as well as relevant provisions, it re-casted the burden on the complainant to prove her case beyond the reasonable doubt. Therefore, it requires to appreciate the pleading and evidence of complainant.
60. In the complaint it was pleaded that, the accused for the various reasons from 2013-15 borrowed loan of more than Rs.12 lakhs from the father of the complainant. She also stated, her father was sourced the loan to the accused from his hard earned amount as well as from 3rd parties at certain rate of interest. As it was mutually agreed between her father and accused. By Judgment 58 C.C.No.30205/2018 pleading so, the complainant has projected that, it was the loan transaction between 2013-2015. The complainant though she is subjected for cross-examination, she has not disclose, exactly on which date, what portion of the amount were borrowed by the accused from her father. Though she pleaded as such, contrary to the same she deposed that:
"In my complaint, I have stated accused liable to pay more than Rs.12,00,000/-, in fact, she has to pay Rs.24,00,000/-. Except the cheque, I have not submitted any documents but I have the bank statements to that effect. It is true to suggest that, I have not specified, what was the Bank Interest and third parties name as narrated in my complaint. I am not aware about the rate of interest."
61. On going through the testimony of PW.1, she categorically admitted that, she deposed accused is liable to pay more than Rs.12 lakhs. Even further she clarified that, infact she has to pay Rs.24 lakhs. If, it was the transaction held between deceased N.Nagaprakash and accused and still accused liable to pay the said huge amount definitely, there was no impediment to the complainant to discloses the true affairs. But for the reasons better known to her she did so. Therefore, it is one of the doubtful circumstances as to the claim of the complainant as well as Judgment 59 C.C.No.30205/2018 alleged liability on the accused. The PW.1 has categorically admitted that, except, the cheques, she has not produced any document before this court. Even she deposed, she does not specified what was the bank interest and the amount sourced by her father from the 3rd party in the complaint. She deposed she not aware about the rate of interest. The said testimony of PW.1 is not clarificatory as to the alleged lent of loan as well as the repayment made by the accused and outstanding due with its interest. The PW.1 in her further cross-examination has categorically admitted that, on 07.07.2018 she went to working place of the accused and also admitted there were heated arguments held between them. Even she admitted the police have called and informed her that, the accused was lodging of complaint. Therefore, it made clear that, there is some force in the defence of the accused as to the alleged transaction made mentioned in the Ex.D1 complaint.
62. The PW.1 has deposed that, on 07.07.2018 itself accused gave questioned cheques at Exs.P1 to P3 to her. If at all, the accused gave those cheques to the complainant definitely, it should be reflected in the Ex.D1 complaint. But no such allegation is made. As discussed earlier the complainant had pass WhatsApp Messages to the accused and admitted in the Judgment 60 C.C.No.30205/2018 year 2016 she had contended, on old cheques of the accused. If at all, she had old cheques as such, once gain how she obtained cheques on 07.07.2018 from the accused, she needs to prove due execution and issuance of those cheques in her favour in respect of the alleged liability. The PW.1 in her cross-examination has categorically deposed that, accused herself got filled the cheques and handed over to her. On going through the Exs.P1 to P3 cheques it discloses, the admitting signature of the accused and other hand writings are appears to be in different. If at all, accused herself got issued those cheques to the complainant definitely, she could have done through it her own hand writing. Inspite of give separate 3 cheques no impediment to her to issue one cheque for huge amount. In that regard, no necessary explanation is forth coming from the side of complainant.
63. In the pleading complainant has alleged that, the accused borrowed loan from 2013-15 on several occasions. As appreciated above, during the course of cross of DW.1 it was suggested to her that, she borrowed loan from the deceased N.Nagaprakash had not lent huge amount at once, but as suggested, for the period of 9 years he go on lent of several occasions. If the accused has not repaid its different, but as found in Exs.P14 and P16 as well as Ex.D3 she had been repaid the Judgment 61 C.C.No.30205/2018 maximum amount. In order to show that, the said amount was adjusted towards the interest and as suggested to DW.1, she is still liable to pay Rs.27 lakhs or pay the cheques amount of Rs.12 lakhs, the complainant has not produced any satisfactory evidence.
64. In the complaint it was pleaded that, her father sourced loan out his hard earned amount, then it can inferred that, his bank statement revel the payment made to the accused. In order to show that, her father had mobilized the fund through 3rd parties, it is not the contention of the complainant lent the loan to the accused by way of cash. It is significant fact to note that, deceased N.Nagaprakash was Assistant Bank Manager. He by mobilized fund to another and deposited to his bank account then paid to accused is not the contention of the complainant. Thereby, the complainant failed to prove that, her father had mobilized from 3rd party.
65. The complainant has not satisfactorily pleaded about the exact loan transaction held between her father and accused with better particulars. In the pleading narrated more than Rs.12 lakhs loan lent to the accused. While cross-examination of PW.1 on seeing the probable defence of the accused has to her payment Judgment 62 C.C.No.30205/2018 made to deceased N.Nagaprakash through the bank account it was suggested that, sum of Rs.41,51,700/- was lent by her father to the accused and she still liable for Rs.27 lakhs, there is no evidence produced by the complainant. There is no written document as to the alleged loan transaction held between deceased N.Nagaprakash and accused. Even complainant has not produced satisfactory explanation or evidence to accept her claim.
66. The accused through out the case from the inception by way of caused reply at Ex.P12 has been attack on the claim of complainant. Even some extent has able to rebut the statutory presumption as well as the case put forth by the complainant. The accused has made out so many doubtful circumstances to disbelieve the very case put forth by the complainant as discussed earlier. Thereby, the accused has able to probe her probable defence that, questioned cheques at Exs.P1 to P3 are not issued by her to the complainant for discharge of alleged liability or any liability. There is no monetary transaction between complainant and accused, therefore, when complainant stepped into shoes of her deceased father as to the alleged transaction held between deceased father and accused, she must approach this court with better particulars including the repayment of same by the Judgment 63 C.C.No.30205/2018 accused. But without any clarification might because of she possessed the questioned cheques of the accused, she brought the present case by projecting that, for discharge of existence of legally recoverable debt, the accused got issued the same. Mere because of possessed the questioned cheques at Exs.P1 to P3 of the accused it does not mean that, the amount made mentioned there in is the existence of legally recoverable debt as accused has created so many doubtful circumstances in that regard. Though it was reverse burden on the complainant, she utterly failed to prove her case. As discussed earlier, the following are serious lacks in the case of complainant. Though, deceased N.Nagaprakash was the retired bank Assistant Branch Manger, alleged to lent loan to the accused in between 2013-15 as pleaded by the complainant, it goes against the same while suggesting to DW.1 that, it was the transaction between 2004-15. It appears that, there is some restriction in recover the time barred debt under the relevant provisions of Limitation Act. It is not the contention of the complainant that, the accused by undertaking her liability after the death of deceased father, after the point of limitation or before, she got executed any loan revival letter or acknowledgment enable the complainant approached the court of law.
Judgment 64 C.C.No.30205/2018
67. That apart, the complainant has utterly failed to plead and prove the real transaction amount involved between deceased father of complainant and accused years together. The complainant had failed to discloses, the repayment made by the accused as found in the necessary entries in the joint bank statement of deceased N.Nagaprakash held with his wife and daughter. Despite, accused had made several repayments of the smaller borrowing of loans on various dates years together, apart from she paying the principal and interest, the complainant has not discloses the particulars of true transaction also creates doubt one of the strong doubtful circumstances.
68. That apart, the pleading it was pleaded accused borrowed more than Rs.12 lakhs. The same is lacks in the evidence of PW.1 as well as DW.1, but it has been diluted to the loan transaction for the tune of Rs.41,51,700/-. The complainant has not specified on which dates, what portion of amount, years together lent and it was not adjusted towards the various repayment made by the accused as observed and discloses in the bank statement of the deceased N.Nagaprakash. Though complainant has admitted the receipt of Rs.17 lakhs from the accused on various dates towards the repayment of loan borrowed from the deceased N.Nagaprakash, utterly failed to Judgment 65 C.C.No.30205/2018 demonstrate the liability of the accused either it was Rs.12 lakhs as pleaded emerged from Exs.P1 to P3 cheques or balance liability of Rs.27 lakhs.
69. The complainant has not produced any documentary evidence as to the loan transaction held between deceased N.Nagaprakash and accused. The complainant has not lent any loan to the accused. Therefore, when she stepped into shoes of deceased father of complainant, it needs to furnish necessary particulars, but the same is lacks.
70. The complainant consequent to the death of her deceased father on 06.06.2016 in the year 2018 brought the present case. Wherein, the accused has opposed since his mother is not being a party without obtaining necessary legal heirs certificate or probates or letter of administration, she is handicap to brought the present case. In that regard relied upon the decision reported in Crl. Writ Petition No.842/2009, in a case between Vishnupant V/s. Kailash rendered by the Hon'ble High Court of Bombay.
71. As observed in the said dictum by ignoring the mother of complainant, she prosecuted the matter alone without any authorization, she also not clarified. The alleged transaction held between deceased N.Nagaprakash and accused for the period of Judgment 66 C.C.No.30205/2018 2004-2015. Therefore, for recover the said amount the relevant provisions of Limitation Act would come as obstacle. Even to remove same necessary explanation with documents or evidence is not been placed by the complainant.
72. The complainant's father was Assistant Branch Manager, he alleged to be lent loan to the accused on interest years together. In order to do the said money lending business without their being valid licence, no satisfactory explanation has been placed by the complainant. What was the rate of interest imposed by the complainant and which was adjusted towards the repayment made by the accused for the admitted amount of Rs.17 lakhs is also not been satisfactorily explained. Though there was serious exchange of messages between complainant and accused, wherein complainant got admitted possessed the old cheques of the accused during September, 2016 itself then how she once again possessed the questioned cheques at Exs.P1 to P3 on 07.07.2018 is also not been satisfactorily proved and established the due issuance and execution in order to fix liability on the accused.
73. If at all, the accused herself admitted the liability of Rs.12 lakhs and came forward to pay the same, she no needs to give Judgment 67 C.C.No.30205/2018 separate 3 cheques by mentioning the dates on 24.08.2018 for one cheque and 27.08.2018 for another 2 cheques. She being Bank Employee herself could have issued and executed one cheque, the due and execution of questioned cheques is also not been satisfactorily demonstrated by the complainant in order to treat it as legally enforceable debt. The complainant herself has inconsistent case as to the liability of the accused as observed earlier. Therefore, the inconsistence defence taken by the accused at her reply notice as well as in her objection statement or the defence placed through PW.1 or DW.1 would not enable the complainant to consider her case. On going through the materials available on record, it is the consider opinion of this court that, the accused has established her probable defence and rebutted the very statutory presumption as well as the transaction put forth by the complainant. The complainant though projected this case as Rs.12 lakhs is the existence of legally recoverable debt, she has failed to prove her theory.
74. The accused has adduced direct and circumstantial evidence to prove that, cheques in question was not supported with the consideration and there was no debt or liability to be discharged by her. The accused should disprove the non existence of consideration and debt by leading direct evidence.
Judgment 68 C.C.No.30205/2018 The accused has cannot taken mere plausible defence, but the accused herein, has attack on the claim of complainant with certain specific defence with documentary evidence. The evidence led by the accused which is probable has to be brought on record and thereby, getting the burden of proof shifted to complainant. To disprove the presumption, the accused has brought on record such facts and circumstances, upon the consideration of which the court may either believer that the consideration and debt did not existence was so probable that, a prudent man would under the circumstances of the case, act upon the plea that, they did not exist. By place the rebuttable evidence, the complainant has disproved the case and liability fixed on her whatever the facts specifically within the knowledge of accused, she brought on record and created reverse burden on the complainant. But the complainant has failed to discharge the same and prove the guilt of the accused. Hence, the accused is entitled for benefit of doubt for acquittal.
75. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, she fails to demonstrate her very case. While appreciate the materials available on record, this court has Judgment 69 C.C.No.30205/2018 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:
"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".
76. 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 cheque in discharge of a legally payable debt.
At this stage, this court also relies upon another 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:
Judgment 70 C.C.No.30205/2018 "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 rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
77. 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.12 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".
Judgment 71 C.C.No.30205/2018
78. 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 to P3 cheques amount of Rs.12 lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable 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 cheque, who is not at all liable to pay the cheque 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.12 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
79. 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 to P3 in discharge of her legally payable debt for valid Judgment 72 C.C.No.30205/2018 consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
80. 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 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 she need not prove the defence beyond reasonable doubt.
81. 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 her contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to Judgment 73 C.C.No.30205/2018 prove that, amount of Rs.12 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 her case beyond all 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.
82. 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.
As this court has taken the judicial notice as to the Xerox copies of the WhatsApp message exchanged between the complainant and accused for the period of 17.04.2016 to 10.08.2016, the same shall be keep as part and parcel of the documents of the Judgment 74 C.C.No.30205/2018 complainant in this case as observed in this judgment.
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 7th day of October - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Vinyasa N Prakash List of Exhibits marked on behalf of Complainant:
Exs.P1 to P3 : Original Cheques Exs.P1(a) to P3(a) : Signatures of accused Exs.P4 to P6 : Bank endorsements Ex.P7 : Office copy of legal notice Ex.P8 & P9 : Postal receipts Exs.P10 & P11 : Postal Acknowledgment cards Ex.P12 : Reply notice Ex.P13 : Death certificate Exs.P14 to P16 : Statement of accounts Ex.P11 : Postal receipt Ex.P12 : Postal Acknowledgment card Exs.P13 to P16 : Statement of accounts
List of Witnesses examined on behalf of the defence:
DW.1 : C.Indira Priyadarshini List of Exhibits marked on behalf of defence:
Ex.D1 : Xerox copy of police complaint Judgment 75 C.C.No.30205/2018 Ex.D1(a) : Translated copy of Ex.D1 in English version Ex.D2 : Xerox copy of acknowledgment Ex.D2(a) : Translated copy of Ex.D2 in English version Ex.D3 : Statement of account Unmarked document taken judicial note
Xerox copies of WhatsApp Messages exchanges between complainant and accused pertaining to the mobile number of accused for the period 17.04.2016 to 10.08.2016.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 76 C.C.No.30205/2018
07.10.2020.
Comp -
Accd -
For Judgment
Case called out through Video
Conference.
Complainant and accused are present.
Through Video Conference no representation advocate for the complainant. The advocate for accused is present. The following judgment is pronounced through video conference vide separate order.
Judgment 77 C.C.No.30205/2018 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.
As this court has taken the judicial notice as to the Xerox copies of the WhatsApp message exchanged between the complainant and accused for the period of 17.04.2016 to 10.08.2016, the same shall be keep as part and parcel of the documents of the complainant in their case as observed in this judgment.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.