Bangalore District Court
When She Approached Him For Financial ... vs The Complainant Lent A Sum Of Rs.10 Lakhs ... on 20 December, 2022
1 C.C.No.17363/2018
KABC030469972018
Presented on : 27-06-2018
Registered on : 27-06-2018
Decided on : 20-12-2022
Duration : 4 years, 5 months, 23 days
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 20 th day of December 2022
Present: Lokesh Dhanapal Havale, B.A.LL.B
XV Addl.C.M.M., Bengaluru.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case C.C.No.17363/2018
2.Name of the Complainant: Mr. Gangadhar K. Devnani
Aged about 38 years,
S/o Kannayalal Devnani
R/at No.117, 2nd Floor,
VIII cross, Railway Parallel Road,
Kumara Park West,
Bengaluru-560 020.
3.Name of the accused: Ms. Anu Chandy
Aged about 35 years,
No.135, Gina Road,
Aishwarya Enclave,
Kothanur Main Road,
Next to DS Max Apartments,
Bengaluru- 560 077.
2 C.C.No.17363/2018
ALSO AT:
'Physio Studio'
S-409, 4th floor, South Block,
Manipal Centre,
Dickenson Road,
Bengaluru-560 001.
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(1) Cr.P.C., accused
is Acquitted
7.Date of final Order 20th day of December, 2022
* * *
This complaint is filed U/Sec.200 of Cr.P.C. against the
accused for the offence punishable U/Sec.138 of the Negotiable
Instruments Act, 1881.
2. The facts of the complaint in brief are as under:
The complainant is a Financial Consultant and a businessman
in general merchandise with a wide area of operations in
Bengaluru and nearby cities. The complainant and accused though
live at different places, they knew each other quite intimately as
the accused is a professional and she has her business in the name
'Physio Studio' in the City Bengaluru. She got acquainted with the
complainant when she approached him for financial assistance for
her business pursuits. Early January 2017, the accused approached
the complainant for financial assistance to advance her professional
3 C.C.No.17363/2018
interests and business endeavors and on the request of the
accused, the complainant lent a sum of Rs.10 lakhs to the accused
by way of cheque on Corporation Bank. She executed an On
demand promissory note and assured the complainant that she
would repay the loan. To assure the payment of loan by equated
monthly installments, the accused issued 10 cheques on account in
Yes Bank, Kamanahally branch each for Rs.1 lakh. The first two
cheques were encashed while the other 5 cheques were
dishonoured with an endorsement 'Funds Insufficient'. The Cheques
are bearing Nos.256991 dated 11.03.2017, Cheque No.256992
dated 11.04.2017, Cheque No.256993 dated 11.05.2017, Cheque
No.256994 dated 11.06.2017, Cheque No.256995 dated 11.07.2017
for Rs.1,00,000/- each. The complainant presented each of the said
cheques on their due dates in his bank HDFC, Sheshadripuram
branch, they returned on 14.03.2017, 12.7.2017, 3.8.2017 and
3.8.2018. The accused assured the complainant to make good and
loss and instead she promised to pay cash and as a result the
remaining 3 cheques were out dated. The cheques are bearing
Nos.256997 dated 11.09.2017, Cheque No.256999 dated
11.11.2017, Cheque No.257000 dated 11.10.2017 for Rs.1,00,000/-
each. When complainant approached the accused to repay the loan
and she offered her car and tried to mislead him as the
complainant found that the same is pledged for a loan with ICICI
Bank. Thereafter the accused issued three cheques bearing
Nos.000092 dated 27.02.2018 for Rs.2,50,000/-, No.000093 dated
27.02.2018 for Rs.2,50,000/- & No.000094 dated 27.02.2018 for
Rs.3,00,000/- all cheques drawn on Kotak Mahindra Bank, Lavelle
Road, Bangalore. On presentation of cheques for encashment, they
4 C.C.No.17363/2018
were returned dishonored with an endorsement "Account blocked"
vide endorsement dated 28.02.2018. The complainant instructed
the accused to ensure sufficient balance in her account before he
sends the cheques to her bank and waited for some time. He
presented the cheques again and they were again returned for the
reason 'Funds Insufficient' on 13.03.2018, 14.03.2018 and
15.03.2018 respectively. He issued legal notice dated 24.03.2018 to
the accused calling upon her to repay the cheque amount. The
notice sent through RPAD was returned with an endorsement
31.03.2018 with shara 'LEFT'. The demand notice sent by Speed
post was accepted at her residence on 02.04.2018. The accused
failed to repay the amount within 15 days from the said date and
thereby committed an offence punishable U/s.138 of the N.I.Act.
3. After the institution of the complaint, the cognizance
was taken and it has been registered as PCR No.7333/2018. The
sworn statement of the complainant has been recorded and on the
basis of sworn statement and other materials on hand, the criminal
case has been registered against the accused and summons was
issued to her. In response to the service of summons, the accused
appeared through her learned counsel and got enlarged on bail.
The prosecution papers were supplied to the accused and the
substance of the accusation was read over and explained to the
accused in the language known to her. She pleaded not guilty and
claimed to be tried.
4. During trial the complainant examined himself as PW-1
and got marked Ex.P1 to P31. The statement of the accused U/s.
5 C.C.No.17363/2018
313 of Cr.P.C. was recorded. The accused examined herself as
DW1 and got marked Ex.D1 to D3. on her behalf.
5. Heard the arguments. On perusal of the entire
materials on record, the points that arise for my consideration are
as under;
1. Whether the complainant proves that the
accused issued 3 cheques bearing Nos.000092
dated 27.02.2018 for Rs.2,50,000/-, No.000093
dated 27.02.2018 for Rs.2,50,000/- &
No.000094 dated 27.02.2018 for Rs.3,00,000/-
all cheques drawn on Kotak Mahindra Bank,
Lavelle Road, Bangalore towards the discharge
of legally enforceable debt/liability and on its
presentation for encashment, it was
dishonored with an endorsement "Funds
Insufficient" and even after the service of
legal notice, the accused has not paid the
amount within 15 days and thereby accused
committed an offence punishable U/Sec.138 of
N.I. Act, 1881?
2. Whether the accused rebuts the
presumption U/s.139 of the N.I.Act?
3. What order?
6. My answers on the above points for consideration are
as under:
Point No.1 : Negative
Point No.2 : Affirmative
6 C.C.No.17363/2018
Point No.3 : As per final order for the following;
REASONS
7. Point No.1 and 2 :- The points are taken together for
the common discussion to avoid repetition of facts and evidence. It
is necessary to discus the provisions U/s. 118(a) and 139 of the
Act., 1881 at this stage.
"118. Presumptions as to negotiable
instruments. - Until the contrary is
proved, the following presumptions shall
be made:-
(a) of consideration - that every
negotiable instrument was made or drawn
for consideration, and that every such
instrument, when it has been accepted,
indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or
transferred for consideration;"
"139. Presumption in favour of
holder.- It shall be presumed, unless the
contrary is proved, that the holder of a
cheque received the cheque of the nature
referred to in section 138 for the
7 C.C.No.17363/2018
discharge, in whole or in part, of any
debt or other liability."
8. On plain perusal of the provision U/s. 118(a) and 139
of the N.I.Act., it can be seen that initially the presumptions
constituted under these two provisions are in favour of the
complainant. However the presumptions are rebuttable and it is
open to an accused to raise a defence to rebut the statutory
presumptions. An accused can raise a defence, wherein the
existence of legally enforceable debt or liability can be contested.
9. It is also well established that an accused need not
examine himself for discharging the burden of proof placed upon
him under a statute. He may discharge his burden on the basis of
the materials already brought on record. An accused has
constitutional rights to remain silent. The standard of proof on
part of the accused and that of the prosecution in a Criminal Case
is different. The prosecution must prove the guilt of an accused
beyond all reasonable doubts, the standard of proof so as to prove
a defence on the part of an accused is preponderance of
probabilities.
10. Under the light of position of the law, I have perused
the complaint and the evidence placed on record. The complainant
in support of his claim made in the complaint has adduced
evidence by examining herself as PW-1 and he got marked Ex.P1
to 31. PW-1 filed his evidence affidavit on oath and reiterated the
complaint averments. Ex.P1 is the On Demand Pronote and
8 C.C.No.17363/2018
Consideration Receipt dated 10.1.2017, wherein the accused
promised to pay Rs.10,00,000/- to the complainant. Ex.P2 to 9 are
the 8 cheques bearing Nos.256991 dated 11.03.2017, No.256992
dated 11.04.2017, No.256993 dated 11.05.2017, No.256994 dated
11.06.2017, No.256995 dated 11.07.2017, No.256997 dated
11.07.2017, No.256999 dated 11.11.2017 & No.2567000 dated
11.10.2017 for Rs.1,00,000/- each drawn on YES bank, Kamanhalli
branch, Bengaluru. Ex.P2(a) to Ex.P.9(a) are the signatures of the
accused. These are the 8 cheques out of the 10 cheques issued by
the accused. Ex.P13 to Ex.P16 are the Bank Memos with shara
"Funds Insufficient". The remaining bank memos have not been
produced.
11. Ex.P10 to 12 are the cheques bearing No.000092 dated
27.2.2018 for Rs.2,50,000/-, No.000093 dated 27.02.2018 for
Rs.2,50,000/- & No.000094 dated 27.02.2018 for Rs.3,00,000/-
drawn on Kotak Mahindra Bank, Lavelle Road branch, Bengaluru
issued in favour of the complainant. Ex.P10(a) to Ex.P.12(a) are
the signatures of the accused. Ex.P17 to 19 are the 3 bank memos
with shara "Account Blocked" dated 28.02.2018. Ex.P20 to 22 are
the 3 bank memos with shara "Funds Insufficient" dated
13.03.2018, 14.03.2018 and 15.03.2018 respectively. Ex.P23 is the
office copy of Legal Notice dated 24.03.2018 issued by the
complainant to the accused demanding repayment of the cheques
amounts to the addresses of the accused. Ex.P24 & 26 are the 2
postal receipts for having sent the legal notice to the accused.
Ex.P25 is the postal envelope, which was returned with shara
'Left' on 26.03.2018. Ex.P27 is the tracking report issued by postal
9 C.C.No.17363/2018
authority for having served the notice on the accused on
02.04.2018. On perusal of Ex.P27 it is found that the notice is not
stated to be served on the accused but it was delivered to Arabic
College SO on 02.04.2018.
12. Ex.P28 is the NC acknowledgment letter dated
19.02.2019 issued by Ashok Nagara police station in respect of
NCR No.113/2019. Ex.P29 is the compliant dated 19.02.2019
pertaining to NCR No.113/2019. On perusal of Ex.P28 and 29, it is
found that the accused filed complaint in Ashok Nagar Police
station alleging that the complainant took her car bearing
No.KA.05.MJ.4788 for the purpose of sale and it was left in
No.20, Anepalya, Shanthi Nagar, Bengaluru in a garage on
18.01.2019 and the complainant is neither selling the car and
making payment nor returning the car. Ex.P30 is the Letter dated
29.01.2018. It was marked during the cross examination of DW.1
by way of confrontation and admission of her signature. DW.1
admitted only the signature and not the contents. It is the
document produced and relied on by the complainant. On perusal
of Ex.P30, the contents show that the complainant alleged to have
agreed that she borrowed loan of Rs.10,00,000/- from the
complainant in January 2017 and repaid Rs.2,00,000/- and the
outstanding balance is Rs.8,00,000/- for which she has been giving
her Mercedes Benz car bearing KA.05.MJ.4788 worth
Rs.9,00,000/-. The complainant stated to have agreed to clear the
loan on the car to an extent of Rs.4,70,000/- and maintenance
expenditure of Rs.1,00,000/-. The accused agreed to deduct
Rs.3,30,000/- in loan of Rs.8,00,000/- and also agreed to pay
10 C.C.No.17363/2018
balance Rs.4,00,000/- to the complainant within a month. As per
the version of the complainant it is given by the accused. However
the contents are not in the handwriting of the accused. The
accused is doctor by profession and if she would have to give
letter to anybody on her letter head, why would she get it written
from somebody else. It being the document relied on by the
complainant, it is clear that the complainant agrees to the contents
of ExP.30. Ex.P31 is the ICICI Bank statement of the accused
marked during her cross examination. On perusal of Ex.P31, it
shows that there was out standing car loan amount of
Rs.1,10,817/- as on 24.01.2018.
13. On perusal of the documents, it is clear that the
cheques at Ex.P10 to 12 bearing Nos.000092 dated 27.02.2018 for
Rs.2,50,000/-, bearing No.0000093 dated 27.02.2018 for
Rs.2,50,000/- & cheque bearing No.000094 drawn on Kotak
Mahindra Bank, Lavelle Road branch, Bengalore issued in favour
of the complainant was presented within its validity. Ex.P20 to 22
are the Bank Memo's with shara "Funds Insufficient" dated
13.03.2018, 14.03.2018 and 15.03.2018 respectively. The
complainant issued legal notice to the accused on 24.03.2018 as
per Ex.P23, which is well within the time from the date of receipt
of dishonor memos. The notice was sent by the complainant to
two addresses of the accused i.e. office address and house address.
The notice was sent through RPAD to the office address i.e. Physio
Studio returned with shara 'Left'. The notice was sent through
Speed Post to the house address i.e. No.135, Gina Road, Aishwrya
Enclave, Kothnur Main Road, Next to DS Max Apartments,
11 C.C.No.17363/2018
Bengaluru is stated to have been served as per ExP.27. However
on perusal of Ex.P27, it makes it clear that the notice was
delivered to Arabic College S.O. but there is no mention that the
notice has been delivered to the addressee. The accused disputed
the notice saying that she came to know about the case only when
she received call from the police. Further on perusal of all the
documents such as complaint filed by the accused to the police at
ExP.28 and 29, insurance policy at ExD.2 and bank account
statement at ExP.31, the address of the house of the accused is
different. It is No.840, 5th Cross, 9th Main, Kalyan Nagar,
Bengaluru. The said address is from 2014 to 2020. Therefore the
address of the house of the accused as mentioned in the notice
could not be considered as correct address of the accused so as to
draw the presumption U/s.27 of G.C.Act. However the office
address is same as that of the address mentioned in the pronote at
ExP.1. The notice sent to office address returned with shara 'Left'.
Therefore the address of the office being the correct address, the
presumption U/s.27 of G.C.Act could be drawn so as to treat the
same as deemed service of notice. As per the Judgment of the
Hon'ble Supreme Court of India in the case of C.C.Alavi Haji Vs.
Palapetty Muhammed and Another reported in (2007) 6 SCC
555, it was held that when the notice is sent by registered post
by correctly addressing the drawer of the cheque, the mandatory
requirement of issue of notice in terms of clause (b) of proviso to
Section 138 of the Act stands complied with. As per the Judgment
of the Hon'ble Supreme Court of India in the case of N.
Parameswaran Unni v. G. Kannan reported in (2017) 5 SCC
737 it was held that it is clear from Section 27 of the General
12 C.C.No.17363/2018
Clauses Act, 1897 and Section 114 of the Evidence Act, 1872 that
once notice is sent by registered post by correctly addressing to
the drawer of the cheque, the service of notice is deemed to have
been effected. However, the drawer is at liberty to rebut this
presumption. It was also held that when a notice is sent by
registered post and is returned with postal endorsement "refused"
or "not available in the house" or "house locked" or "shop
closed" or "addressee not in station" or "intimation served,
addressee absent", due service has to be presumed. In the case on
hand, the notice sent to office address returned with shara 'Left'.
Therefore it is deemed service of notice. The complaint was filed
on 11.05.2018, which is within limitation. The issuance of cheque
is disputed by the accused but that the cheque belongs to her
account and the signature in the cheque are not disputed.
Therefore, the documents on record clearly show that the
complainant has complied the ingredients of Section 138(a) to (c)
of the N.I.Act. Therefore the presumptions U/s.118 and 139 of the
N.I.Act arise in favour of the complainant. The presumptions are
rebuttable and the burden is on the accused to rebut the
presumptions. The accused can rebut the presumption by raising
probable defence and proving it relying on the evidence of the
complainant or by leading his direct evidence.
14. The Hon'ble Supreme Court of India in the case of
Rangappa Vs. Mohan reported in 2011 (11) SCC 441 held as
under;
13 C.C.No.17363/2018
The presumption mandated by Section 139 of N.I.Act
does indeed include the existence of legally
enforceable debt or liability. It is rebuttable
presumption and it is open to the accused to raise a
defence wherein the existence of legally enforceable
debt or liability can be contested. However there can
be no doubt that there is an initial presumption
which favours the complainant. Section 139 of the
Act is an example of reverse onus clause that has
been included in furtherance of the legislative
objective of improving the credibility of negotiable
instruments.
Therefore the as per the presumption U/s139 of N.I.Act,
if the cheque and signature are admitted then it shall be
presumed that there is legally enforceable debt.
15. The Hon'ble Supreme Court of India in its latest case
of M/s. Kalamani Tex v. P. Balasubramanian reported in 2021
SCC OnLine SC 75 observed at para No.14 to 16 as under:-
14. Adverting to the case in hand, we find on a
plain reading of its Judgment that the trial Court
completely overlooked the provisions and failed to
appreciate the statutory presumption drawn under
Section 118 and Section 139 of NIA. The Statute
mandates that once the signature(s) of an accused on
the cheque/negotiable instrument are established, then
14 C.C.No.17363/2018
these 'reverse onus' clauses become operative. In such
a situation, the obligation shifts upon the accused to
discharge the presumption imposed upon him. This
point of law has been crystalized by this Court in
Rohitbhai Jivanlal Patel Vs. State of Gujarat, (2019) 18
SCC 106 in the following words:
"In the case at hand, even after purportedly
drawing the presumption under Section 139 of the NI
Act, the trial Court proceeded to question the want of
evidence on the part of the complainant as regards
the source of funds for advancing loan to the accused
and want of examination of relevant witnesses who
allegedly extended him money for advancing it to the
accused. This approach of the Trial Court had been at
variance with the principles of presumption in law.
After such presumption, the onus shifted to the
accused and unless the accused had discharged the
onus by bringing on record such facts and
circumstances as to show the preponderance of
probabilities tilting in his favour, any doubt on the
complainant's case could not have been raised for
want of evidence regarding the source of funds for
advancing loan to the appellant-accused....."
15. Once the 2nd Appellant had admitted his
signatures on the cheque and the Deed, the trial
Court ought to have presumed that the cheque was
15 C.C.No.17363/2018
issued as consideration for a legally enforceable debt.
The trial Court fell in error when it called upon the
Complainant-Respondent to explain the circumstances
under which the appellants were liable to pay. Such
approach of the Trial Court was directly in the teeth
of the established legal position as discussed above,
and amounts to a patent error of law.
16. No doubt, and as correctly argued by
senior Counsel for the appellants, the presumptions
raised under Section 118 and Section 139 are
rebuttable in nature. As held in M.S.Narayana Menon
Vs. State of Kerala, (2006) 6 SCC 39, which was
relied upon in Basalingappa (supra), a probable
defence needs to be raised, which must meet the
standard of "preponderance of probability", and not
mere possibility. These principles were also affirmed
in the case of Kumar Exports (supra), wherein it was
further held that a bare denial of passing of
consideration would not aid the case of accused.
Therefore it is clear from the above judgments that the
accused has to raise a probable defence and prove it by adducing
evidence, which must meet the standard of preponderance of
probabilities. Unless the same has been done, doubt can not be
raised on the case of the complainant.
16 C.C.No.17363/2018
16. It is the defence of the accused that the complainant
filed false case against her in order to make illegal gain. The
person by name Girish met her and she knew Girish from past
several years. She had done for money transaction with him. He
transferred Rs.10,00,000/- to the account of Gangadar K. Devanani.
She repaid Rs.2,25,000/- to the complainant and there after she
paid Rs.2,00,000/- in order to repay the loan amount. She totally
repaid Rs.4,25,000/-. Thereafter the complainant approached her
and asked her to sell Mercedes Benz Car bearing
No.KA.05.MJ.4788. She handed over the car to them on
18.01.2018 along with relevant documents. She also gave insurance
policy and loan documents to the complainant. The complainant
told her to drop the car in Standard Automobiles, Door No.20,
Audugodi, Anepalya, Bangalore. She also signed Form No.29 and
30 and handed over to the complainant. The complainant assured
her to sell the car, take the loan amount and pay her remaining
amount of sale. She received call from the police station and came
to know that the complainant filed case against her. Thereafter she
gave complaint to Ashok Nagar police station in respect of the car.
The complainant admitted to have taken the car before the
investigation officer and assured to pay her the remaining amount
of sale of car. The complainant has been using her car from 2018.
She produced NC acknowledgment as per Ex.D1. Insurance policy
of the car for the period from 27.03.2017 to 20.03.2018 as per
Ex.D2 in order to prove her defence. However the accused did not
issue reply notice to the notice of the complainant taking similar
contentions. As per the discussion made above in respect of service
of notice, it is clear that the notice was not actually served on the
17 C.C.No.17363/2018
accused and it is taken as deemed to have been served. It is also
pertinent to note that the order sheet and the postal envelopes in
the case file show that the summons sent to the address of the
accused through RPAD have returned unserved. As per the order
sheet, the summons was taken as deemed to have been served. On
issuance of NBW by the Court, the accused appeared and obtained
bail. Therefore it could be inferred that the accused has not issued
reply notice to the notice of the complainant for the said reason.
17. It is clear from the evidence on record and documents
that the accused admitted to have borrowed Rs.10,00,000/- from
the complainant in January 2017. The pronote at ExP.1 is
admitted. It is also admitted that the accused issued 10 cheques
for Rs.1,00,000/- each for repayment of the loan and that two
cheques have been encashed. The remaining cheques at ExP.2 to 9
are admitted to be dishonoured and that she had outstanding loan
of Rs.8,00,000/- prior to January 2018. It was suggested to PW.1
during his cross examination that the accused repaid Rs.4,00,000/-
ut PW.1 denied the same and stated that only Rs.2,00,000/- was
repaid. However it was suggested to the accused during her cross
examination that she paid only Rs.2,00,000/- to the complainant to
repay the loan amount and she admitted it. She also admitted that
she agreed to pay the interest on the loan amount and she paid
Rs.2,25,000/- as interest to the complainant through bank transfer.
It shows that the accused totally paid Rs.4,25,000/- to the
complainant out of which Rs.2,25,000 is admittedly the interest
portion and it is clear that the loan repaid is only Rs.2,00,000/-.
18 C.C.No.17363/2018
The evidence makes it clear that the outstanding loan amount is
admittedly Rs.8,00,000/-.
18. It is the specific defence of the accused that the
complainant approached her and asked her to sell Mercedes Benz
Car bearing No.KA.05.MJ.4788. She handed over the car on
18.01.2018 along with relevant documents. The complainant told
her to drop the car in Standard Automobiles, Door No.20,
Audugodi, Anepalya, Bangalore. She also signed Form No.29 and
30 and handed over to the complainant. The complainant assured
her to sell the car, deduct the loan amount and pay her remaining
amount of sale. The counsel for the accused cross examined PW.1
in respect of the defence of the accused. It was suggested to PW.1
that he took the RC book of the car but he denied it. He stated
that the car bearing No.KA.05.MJ.4788 is not with him. It was
also suggested that he took the car for the out standing of loan
amount but he denied it. It was elicited in the cross examination
of PW.1 that he knew the contents of the legal notice issued by
him to the accused and the notice was drafted by his counsel as
per his instructions. The notice is at Ex.P23.
19. On perusal of the notice at Ex.P23, it is clear that the
accused has alleged to have suggested the complainant to deal
with her Mercedes Benz Car bearing No.KA.05.MJ.4788 to sell the
same and discharge his loan liability and delivered the RC card
and signed a delivery note in respect of the car. It shows that the
evidence of the complainant is inconsistent with the demand notice
at Ex.P23. Further the counsel for complainant cross examined
19 C.C.No.17363/2018
DW.1 and made suggestions in respect of the car. It was suggested
to DW.1 that the accused did not tell her to drop the car in
Standard Automobiles in order to sell it. It was also suggested that
she did not handed over the RC book, DL and form No. 29 and
30 to the complainant. DW.1 denied the said suggestions. It was
elicited in the cross examination of DW.1 that she did not obtain
the acknowledgment for having handed over the car to the
complainant. She voluntarily stated that the complainant told her
to give the receipt but he did not give it. She also did not obtain
the receipt from the Mudassar, who is the owner of the Standard
Automobile, Anepalya, Bengaluru. It was suggested to DW.1 that
she did not handed over the car to anybody as stated by her in
her evidence. She denied the said suggestions. When the counsel
for the complainant drafted the notice at Ex.P23 as per the
instructions of the complainant, it is clearly mentioned that the car
and RC book are handed over, even then the counsel for the
complainant goes on cross examining DW.1 stating that she did
not hand over the car to the complainant or to the Standard
Automobiles at the instance of the complainant. It is pertinent to
note that though the complainant denied having the car of the
accused in his possession, PW.1 admitted in his cross examination
that he told the accused to come with car on 18.01.2018. When
the counsel for the accused made reference of car being taken by
the complainant as per the contents of the notice, PW.1 stated
that he had no objections for the accused to take the car. He also
stated that he did not remember that the accused sent the details
of car loan on 18.01.2018 to his WhatsApp application. These
aspects shows that the complainant had taken the car of the
20 C.C.No.17363/2018
accused on 18.01.2018 and still it is in his possession. The
evidence shows that the complainant is blowing hot and cold
together. Therefore the evidence of complainant is not believable.
20. It is the case of the complainant that after taking the
car of the accused, he came to know that the said car was
hypothecated in ICICI Bank, Bengaluru. Therefore it could not be
sold. The counsel for the complainant cross examined DW.1 in that
regard. It was elicited that she purchased the Mercedes Benz car
in the year 2011. She took car loan of Rs.19,00,000/- in ICICI
Bank by hypothecating the said car. She stated that there is no
out standing car loan ( as per her evidence dated 12.12.2019 ). It
was also elicited that there was out standing car loan of
Rs.4,00,000/- in ICICI Bank as on the January 2018. She admitted
that she did not give the ICICI Bank loan statement to the
complainant at the time of selling the car. She voluntarily stated
that the complainant did not ask for the same but she sent the
loan amount details to the complainant through e-mail. The
counsel for the complainant further cross examined in respect of
out standing car loan amount and confronted the loan account
statement to DW.1. She admitted that ICICI bank car loan
statement and it was marked as Ex.P31. She admitted that there
was loan of Rs.1,10,870/- on the car as on 24.01.2018. She
voluntarily stated that she had cleared the loan. She admitted that
as per Ex.P31 she defaulted the EMI of car loan. She voluntarily
stated that due to the demonetization the work of clinic was
stopped but later she cleared the loan completely. The cross
examination of DW.1 clearly show that the car was hypothecated
21 C.C.No.17363/2018
to ICICI bank and there was out standing car loan amount of
Rs.4,00,000/- as on January 2018 as per her oral evidence. But
the counsel for the complainant himself confronted the document
at Ex.P31 and asked her that the outstanding balance as on
24.01.2018 is Rs.1,10,870/- and she admitted it. Therefore one
aspect is clear that though there is difference in the out standing
car loan amount, there is balance car loan amount which to be
paid by the accused and in respect of which the car was
hypothecated. Under such circumstances, the car could not be sold
by the accused unless and until the loan amount is cleared or
NOC is obtained from ICICI Bank for selling the car. The
complainant did not dispute that the car loan amount was cleared
by the accused. It is his case that at the time of handing over the
car there was balance car loan amount and therefore it could not
be sold. If that is so the defence of the accused could not have
been considered to be probable. However the complainant himself
produced and got marked Ex.P30 by way of confrontation to the
accused during her cross examination. On perusal of Ex.P30,
which is dated 29.01.2018, the contents show that the complainant
alleged to have agreed that she borrowed loan of Rs.10,00,000/-
from the complainant in January 2017 and repaid Rs.2,00,000/-
and the outstanding balance is Rs.8,00,000/- for which she has
been giving her Mercedes Benz car bearing KA.05.MJ.4788 worth
Rs.9,00,000/-. The complainant stated to have agreed to clear the
loan on the car to an extent of Rs.4,70,000/- and maintenance
expenditure of Rs.1,00,000/-. The accused agreed to deduct
Rs.3,30,000/- in loan of Rs.8,00,000/- and also agreed to pay
balance Rs.4,00,000/- to the complainant within a month. As per
22 C.C.No.17363/2018
the version of the complainant it is given by the accused. However
the contents are not in the handwriting of the accused. The
accused is doctor by profession and if she would have to give
letter to anybody on her letter head, why would she get it written
from somebody else. It being the document relied on by the
complainant, it is clear that the complainant agrees to the contents
of ExP.30. Therefore as per the contents of Ex.P30 as there was
out standing car loan amount, the complainant has to clear the
loan and sell the car, deduct his loan amount and the accused has
to pay the balance loan amount within a month. Ex.P30 shows
that the complainant had knowledge of the loan and having
known everything, he received the car from the accused. Therefore
as per Ex.P30, there is no outstanding liability of the accused to
an extent of Rs.8,00,000/- in view of handing over of car as part
payment of loan amount. Therefore the version of the complainant
goes on changing and it is inconsistent and contradictory.
Therefore the evidence of the complainant is not believable.
21. The accused in order to prove her defence, produced
the documents at Ex.D1 to Ex.D3. The counsel for the complainant
also confronted the documents i.e., the NCR acknowledgment and
complaint filed by the accused on 19.02.2019 and they are at
Ex.P28 & 29. Ex.D1 and Ex.P28 are one and the same. Ex.D2 is
the car insurance policy taken by the accused from Bajaj Alliance
company. It is for the period from 21.03.2017 to 20.03.2018. The
premium was Rs.36,338/- and the insured declared value of the
car is Rs.14,00,000/-. Therefore it is hard to believe that the
accused agreed to sell the car at Rs.9,00,000/- as per Ex.P30.
23 C.C.No.17363/2018
Ex.P28/Ex.D1, Ex.P29 and Ex.D3, clearly show that complaints
were filed by the accused, when the complainant neither sold the
car and deducted the loan amount nor handed over the car to the
accused. Therefore the defence of the accused appears to be
probable.
22. The counsel for the complainant cross examined DW.1
in respect of issuance of cheques. It was suggested to DW.1 that
she issued 3 cheques of Kotak Mahindra Bank in order to repay
outstanding loan amount to the complainant, she answered that
the said cheques were issued for the previous transactions.
However the accused did not whisper anything about the issuance
of cheques at Ex.P10 to 12 in favour of the complainant in respect
of the previous transactions. It was also elicited in the cross
examination of DW.1 that she had 3, 4 transactions with the
complainant prior to the present transaction but she could not say
the loan amounts. She repaid the previous loans along with
interest. On perusal of the evidence nothing is forthcoming on
record to show that there are previous transactions between the
complainant and the accused. Therefore the issuance of the
cheques by the accused to the complainant for previous
transactions appears to be not probable.
23. It is the case of the complainant that the accused
handed over the car and RC book to discharge the loan by selling
it and also issued cheques at Ex.P10 to 12 for remaining balance
of Rs.8,00,000/- as per the legal notice at Ex.P23. It is admitted
fact that there is outstanding loan of Rs.8,00,000/- only. If that is
24 C.C.No.17363/2018
so why would the accused hand over the car to discharge the loan
by selling it and also issue the cheques amounting to
Rs.8,00,000/-. Therefore the version stated by the complainant in
the notice is not believable. It is the case of the complainant in
the compliant that the accused offered her car to discharge her
loan and tried to mislead the complainant even though the car is
hypothecated in ICICI Bank. Thereafter she issued cheques of her
personal account as per Ex.P10 to 12. It is pertinent to note that
it is not mentioned either in the notice or in the complaint about
the date of issuance of cheques by the accused. The cheques at
Ex.P10 to 12 are dated 27.02.2018. As per the presumption
u/sec.118(b) of N.I Act until the contrary is proved, it shall be
presumed as to the date that every Negotiable Instrument bearing
a date was made or drawn on such date. Therefore Ex.P10 to 12
are presumed to have been drawn on 27.02.2018 and the burden
is on the accused to prove the contrary. If the averments in the
notice at Ex.P23 are considered then the accused appeared to have
issued the cheques at the time of handing over the car, which is
admittedly as per the oral evidence of the complainant on
18.01.2018 and as per the documentary evidence at Ex.P30 on
29.01.2018. If the averments in the compliant are considered then
the accused appeared to have issued the cheques after the
complainant came to know about the fact that the car was
hypothecated by the accused in ICICI Bank. However it is not
made clear that whether Ex.P10 to 12 are issued by the accused
on the date mentioned in them or prior to that.
25 C.C.No.17363/2018
24. The counsel for the accused cross examined PW.1 in
respect of issuance of cheques. It was elicited that he did not
know when the accused issued cheques at Ex.P10 to 12. He could
not say the bank to which the said cheques belong. The cheques
might have been filled up by the accused and the cheques might
have been signed by the accused. The answers elicited in the cross
examination of PW.1 show that the complainant himself is not
sure about the date of issuance of cheques. Further when the
accused gave her car to the complainant for discharge of her loan
and as per the document at Ex.P30 produced by complainant
himself, complainant agreed to clear the loan, sell the car, adjust
the amount towards loan and balance is only Rs.4,70,000/- as on
29.01.2018, it could not be believed that the accused issued the
cheques at Ex.P10 to 12 for total amount of Rs.8,00,000/- is not
believable. If at all the case of the complainant is to be considered
that the accused issued the cheque for balance amount of
Rs.8,00,000/- as per Ex.P10 to 12 after coming to know the fact
that the car could not be sold as it was hypothecated in ICICI
bank as on the dates of cheques i.e., 27.02.2018, why would he
kept the car of the accused with him. He would have handed over
the car of the accused back to her on issuance of cheques at
Ex.P10 to 12. The first complaint was filed by the accused in
Ashok Nagar police station on 19.02.2019 as per Ex.P28/Ex.D1,
Ex.P29 to take back the car. During the cross examination dated
22.06.2019, PW.1 stated that he has no objections for the accused
to take her car back. However the car was not handed over to the
accused by the complainant. Thereafter the second complaint was
filed and FIR was registered against the accused on 13.03.2020 as
26 C.C.No.17363/2018
per Ex.D3. However the car was not handed over to the accused
by the complainant. If at all the car was handed over by the
complainant to the accused he would have produced documents to
show that he has handed over the car to the accused. It shows
that the car of the accused is still with the complainant. This
shows the conduct of the complainant.
25. The accused in order to prove her defence produced
Ex.D2, which is the insurance policy for the period from
21.03.2017 to 20.03.2018. The Insured Declared Value is shown as
Rs.14,00,000/- in Ex.D2. The Insured Declared Value is the present
market estimation of the vehicle minus the depreciation on its
parts. Insured Declared Value (IDV) refers to the maximum claim
insurer will pay if your vehicle is damaged beyond repair or is
stolen. Simply, it is the current market value of the car. Therefore
as on January 2018, the value of the car is around Rs.14,00,000/-.
Therefore it could not be believable that the accused handed over
the car and also issued the cheques without receiving back the
car. Therefore the documents at Ex.P23, Ex.P28, Ex.P29, Ex.P30,
Ex.P31 & Ex.D1 to D3 are sufficient to prove that the defence of
the accused is probable and rebut the presumption raised
U/sec.139 of N.I Act raised in favour of the complainant.
26. For the reasons mentioned herein above, it is
crystallized that the accused has proved that there was no
existence of legally enforceable debt/liability between her and the
complainant to an extent of Rs.8,00,000/- in view of handing over
of the car for discharge of the debt and she has not at all issued
27 C.C.No.17363/2018
the instant cheques towards the discharge of legally enforceable
liability of Rs.8,00,000/-. On the other hand, the complainant
failed to prove that the accused issued the cheques for the legally
enforceable liability. The complainant failed to prove his case
beyond reasonable doubts. It is well settled that the accused
needs to prove his defence by preponderance of probabilities. It is
sufficient if the doubt is created on the alleged transaction. The
accused has created the doubt on the transaction and issuance of
cheques in favour of complainant as alleged in the complaint. She
proved that there is no debt or liability in favour of the
complainant to the extent alleged in the complaint. Therefore this
Court is of the opinion that the accused rebutted the statutory
presumption U/s.139 and 118(a) of the Act by pointing out the
infirmities in the case of the complainant. Accordingly, the
accused is found not guilty for the offence punishable U/s.138 of
the N.I.Act. Hence, the Point No.1 is answered in the Negative
and Point No.2 is answered in the Affirmative.
27. Point No.3 : In view of the reasons assigned in Point
No.1 and 2 and considering the facts and circumstances of the
case, I proceed to pass the following:-
28 C.C.No.17363/2018
ORDER
As per the provisions of Sec.255(1) Cr.P.C. the accused is hereby acquitted of the offence punishable u/s.138 of NI Act, 1881.
The Personal Bond executed by the accused is hereby stands cancelled and the cash surety of Rs.5,000/- deposited by the accused shall be refunded to her after appeal period is over.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, is verified and then pronounced by me in Open Court on this the 20th day of December-2022.) (Lokesh Dhanapal Havale), XV Addl. CMM., Bangalore.
29 C.C.No.17363/2018ANNEXURE Witnesses examined for the Complainant:-
PW.1 : Gangadhar K Devnani Documents marked for the Complainant:-
Ex.P1 : D.P Note
Ex.P2 to 12 : 11 cheques
Ex.P2(a) to Ex.P12(a) : Signatures of the accused
Ex.P13 to 16 : 4 bank endorsements
Ex.P17 to 22 : 6 bank endorsements
Ex.P23 : Office copy of the legal notice.
Ex.P24 & 26 : 2 postal receipts
Ex.P25 : Postal envelope
Ex.P27 : Postal Track Report
Ex.P28 : C/c of acknowledgment
Ex.P29 : C/c of Complaint
Ex.P30 : Letter
Ex.P31 : ICICI Bank statement
Witnesses examined For Defence:-
DW.1 : Smt. Anu Chandy Documents marked for Defence:-
Ex.D1 : NC Acknowledgment
Ex.D2 : Insurance policy
Ex.D3 : C/c of FIR and complaint.
(Lokesh Dhanapal Havale), XV Addl.CMM., Bengaluru.
30 C.C.No.17363/2018 31 C.C.No.17363/201820/12/2022 (Judgment Pronounced in the Open Court Vide Separate Order sheet) ORDER As per the provisions of Sec.255(1) Cr.P.C. the accused is hereby acquitted of the offence punishable u/s.138 of NI Act, 1881.
The Personal Bond executed by the accused and surety bond is hereby stand cancelled and the cash surety of Rs.5,000/- deposited by the accused shall be refunded to her after appeal period is over.
XV Addl.CMM., Bengaluru.
32 C.C.No.17363/2018