Bangalore District Court
Aged About 47 Years vs Office on 20 June, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 20th DAY OF JUNE, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.60865/2017
Sri. N. Saravana Rajan
S/o. Nagarathinam .D
COMPLAINANT Aged about 47 years, R/at No.5, 4th Street
Kalahally, Near MEG & Center, Shivan Cetty
Garden Post Office, Bengaluru - 560 042.
Smt. Shyashree M.S
W/o. Late Sunder Rajan
Aged about 48 years, No.48, Kalahally, Near
MEG & Center, Shivan Cetty Garden Post
ACCUSED Office, Bengaluru - 560 042.
Office Address :
Smt. Shyashree M.S
M/s. Gas Turbine Research Establish Division
(MMG), C.V. Raman Nagar, PO Box 9302,
Bengaluru - 560 093.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.60865/2017
JUDGMENT
The complainant has approached this court with this complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant is that, the accused is known to the complainant from past many years being a relative. The accused had approached the complainant on 02.05.2017 requesting for hand loan of Rs.9,50,000/-. Since the accused is the family member, the complainant had paid Rs.9,50,000/- to the accused in cash and in turn the accused had agreed to repay Rs.9,50,000/- within six months. It is further case of the complainant that after number of visits on 04.10.2017 the accused handed over the cheque bearing No.147849 dated 06.10.2017 for Rs.9,50,000/- drawn on State Bank of India, C.V. Raman Nagar branch, Bengaluru towards discharge of the hand loan amount. The complainant presented the said cheque for encashment on 06.10.2017, but the said cheque was returned dishonoured for the reason "payment stopped by the drawer" as per memo dated 07.10.2017. Thereafter the complainant got issued legal notice on 25.10.2017 to the official as well as residential address of the accused calling 3 C.C. No.60865/2017 upon her to make payment of the cheque amount. The accused had not opted to receive the notice, which was sent to her residential address and the same was returned as "not claimed" on 30.10.2017. The notice sent to the official address was served on the accused on 30.10.2017. In spite of service of notice, the accused neither replied to the said notice nor made payment of the cheque amount and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Under these attending circumstances, the complainant is constrained to file the present complaint and accordingly prayed for conviction of the accused and for grant of compensation in his favour in accordance with law in the interest of justice and equity.
3. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons to the accused and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued to the accused.
4. In pursuance of the summons issued by this court, the accused has put up her appearance through her counsel and enlarged on bail. Thereafter plea was recorded. The 4 C.C. No.60865/2017 accused has denied the substance of accusation and claimed for trial.
5. In order to prove the case of the complainant, the complainant himself examined as CW.1 and got marked as many as six documents as per Ex.P1 to P6 and closed his evidence. During cross-examination of the accused, the complainant got marked one document as per Ex.P7. After closure of the complainant's side evidence, statement of the accused as provided U/s.313 of Cr.PC was recorded. The accused had denied the incriminating circumstances found in the evidence of the complainant. The accused himself examined as DW.1 and got marked two documents as per Ex.D1 and D2 and closed her evidence and thereby evidence of the parties concluded.
6. Heard the arguments of the learned counsels for respective parties. The learned counsel for the complainant has relied upon the rulings reported in AIR 2010 (SC) 1898
- (Rangappa Vs. Mohan). On the other hand the learned counsel for the accused has relied upon the rulings of the Hon'ble Apex Court reported in AIR 2009 SC 1518 - (M/s.Kumar Exports Vs M/s. Sharma Carpets), LAWS (SC) 2014 - 1115 (K. Subramani Vs K. Damodar Naidu).
7. On perusal of the entire material available on file and also on hearing the arguments of the learned counsels, 5 C.C. No.60865/2017 in the light of the rulings relied, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt as contended?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is
entitled for the relief as prayed in
the complaint?
4) What Order?
8. The above points are answered as under;
Point Nos.1 to 3 : In negative,
Point No.4 : As per the final order,
for the following.......
REASONS
9. Point Nos. 1 to 3 : Since these points are
inter linked and to avoid repetition they are taken together for discussion. Before peeping into the disputed facts, it is appropriate to refer the undisputed facts at this stage itself, which can be gathered from the material placed before this 6 C.C. No.60865/2017 court. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the complainant and accused are close relatives and the accused is working in Defense Establishment being a Central Government servant. It is also clear that the husband of the accused died about 15 years back and after death of the husband of the accused, the accused used to take the assistance of the complainant in her needs and they were in good cordial terms and they were also residing in same area. Further it is admitted fact that the mother of the accused is having property at Neelasandra and in that regard the complainant has produced the original registered sale deed as per Ex.P7 and in that regard there is no dispute. It is not in dispute that the cheque in question belonged to the accused and the signature found in the cheque is that of the accused. Admittedly the cheque in question was dishonoured for the reason "payment stopped by the drawer". It is also clear that since May 2017 the accused has been financially in good condition. There is no dispute as to address of the accused as shown in the legal notice as well as in the complaint. It is further clear that after dishonour of the cheque, the complainant got issued legal notice to the residential as well as official address of the accused and notice so sent to the residential address of the accused was returned as "not claimed".7 C.C. No.60865/2017
10. With the above admitted facts, now the facts in issue are analyzed, as already stated the accused has denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act while recording her plea for the said offence and also denied the incriminating circumstances found in the evidence of the complainant at the time of recording her statement U/s.313 of Cr.PC. On going through the cross-examination of the complainant and also evidence of the accused, it is clear that the accused has denied the monitory transaction, availment of Rs.9,50,000/- from the complainant, issuance of cheque in question in favour of the complainant towards repayment of the borrowed amount as put up by the complainant in toto. The accused has also denied the service of notice on her and so also the financial capacity of the complainant to lend such huge amount as put up by the complainant. It is found to be a specific defence of the accused that she had lost her one cheque in the month of June 2015 and she came to know about the said fact at the end of June 2015 while verifying her cheque book. Immediately, on 02.07.2015 itself she had issued stop payment letter to her banker in that regard. It is also contended that there was no need for the accused to take loan from the complainant and the complainant by misusing the lost cheque of the accused filed 8 C.C. No.60865/2017 the false case and accordingly prayed for her acquittal in the interest of justice and equity.
11. Relying on the oral and documentary evidence, the learned counsel for the respective parties vehemently argued as to the contention of the parties. It is needless to say that the proceeding U/s.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna 9 C.C. No.60865/2017 Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date as found therein.
12. In the light of the rival contention of the parties at the out set it is to be determined as to whether the complainant had complied with the requirements of Sec.138 of N.I. Act as contended. It is admitted fact that Ex.P1- cheque belonged to the accused and it was signed by her. Along with Ex.P1 - cheque dated 06.10.2017, the contents of Ex.P2 i.e bank endorsement are analyzed, it is clear that the complainant presented Ex.P1-cheque for encashment through Indian Overseas Bank, S.C. Garden branch, Bengaluru on 06.10.2017 and the same was returned dishonoured for the reason "payment stopped by the drawer" on 07.10.2017. The contents of Ex.P3 to P6 i.e office copy of the legal notice, two postal receipts for having sent notice to the two addresses of the accused, returned postal envelop and track consignment are analyzed, they reveal that after dishonour of the Ex.P1-cheque as found in 10 C.C. No.60865/2017 Ex.P2, the complainant got issued legal notice dated 25.10.2017 on 27.10.2017 by RPAD to the residential as well as official address of the accused. The notice sent to the residential address of the accused returned as "not claimed" on 30.10.2017 and the notice sent to the official address of the accused was served on the accused on 30.10.2017 as found in Ex.P6. Admittedly, the accused had not complied with the demand made in the notice. The complainant presented the present complaint on 11.12.2017 i.e after lapse of 15 days from the date of service of notice/returning of the notice as "not claimed" by the accused and within 30 days thereafter. On perusal of these aspects, it is prima facie clear that that complainant had presented the cheque for encashment within its validity and got issued statutory notice within statutory time and presented the complaint within prescribed time. Therefore, on going through these documents their remains no doubt that the complainant had complied with all the technical requirements of Sec.138 of N.I. Act so as to constitute the offence against the accused.
13. As already stated the accused has denied the service of notice on her. In this regard the learned counsel for the accused has argued as to non-production of postal acknowledgment by the complainant. However as argued by the learned counsel for the complainant it is found that 11 C.C. No.60865/2017 notice was sent to the correct addresses of the accused and the notice sent to the residential address of the accused was returned as "not claimed". It is needless to say that when the notice was sent to the correct address of the accused by RPAD it is deemed to be served on her. In this regard the contents of Ex.P5 - returned RPAD envelop is analyzed, the postal endorsement found therein makes it very clear that the intimation was delivered to the accused and in spite of that the accused has not opted to receive the said registered post and as such it was returned as "not claimed". It is needless to say that it is the duty of the accused to receive the registered letter addressed to her. When the accused herself had not claimed the registered notice sent to her correct address having notice of the same then she cannot contend that it was not served upon her. As already stated the accused herself during the course of cross-examination clearly admitted her both addresses as shown in the legal notice as well as the complaint and in that regard there is no dispute. Further the track consignment produced as per Ex.P6 also reveals that the notice sent as per Ex.P4 by RPAD was delivered to the accused on 30.10.2017 as stated by the complainant. There are no reasons to disbelieve the endorsement made by the postal authority. Therefore viewed from any angles, the contention of the accused that 12 C.C. No.60865/2017 notice was not served on her as contended by her is found to be without any merit and that cannot be accepted.
14. Added to the above referred documentary evidence, the complainant in his evidence by way of affidavit specifically stated as to compliance of requirement of Sec.138 of N.I. Act. Though the learned counsel for the accused cross-examined the complainant as to non-service of notice, he could not elicit anything from his mouth so as to dis-believe the case of the complainant in that regard. Therefore on conjoint reading of entire oral documentary evidence, their remains no doubt that the complainant had complied with all the requirements of Sec.138 of N.I. Act. This being the fact, as argued by the learned counsel for the complainant, in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available U/s.139 of N.I. Act is required to be drawn and shall presume that the cheque in question was issued towards discharge of legally recoverable debt. It is also to be presumed that cheque was issued for consideration on the date as mentioned therein.
15. As argued by the learned counsel for the accused, it is well settled principle of law through catena of decisions that, though the statutory presumptions available U/ss.118 and 139 of N.I. Act are mandatory in nature, they are 13 C.C. No.60865/2017 rebuttable one. It is needless to say that when the complainant proves the requirements of Sec.138 of N.I. Act and the accused admits the cheque in question, the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the presumptions with all preponderance of probability with clear, cogent and convincing evidence though not beyond all reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts to the shoulder of the complainant. It is also well settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also well settled principle that in order to rebut the presumption it is not imperative on the part of the accused to step into the witness box and he may discharge his burden on the basis of the material already brought on record and on the basis of the facts elicited in the cross- examination of the complainant. It is also equally true that, if the accused places such evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decision of the Hon'ble Apex court reported in (2006) 3 SCC (Crl.) 30 - (Tamilnad Mercantile Bank Ltd., Vs M/s.Subaiah Gas Agency and others), ILR 2009 (2) 1633 - (Kumar 14 C.C. No.60865/2017 Exports Vs Sharma Carpets), AIR 2008 (SC) 1325 (Krishna Janardhan Bhat Vs. Dattathraya G. Hegde), 2013 SAR (CRI) 373 - (Vijay Vs Laxman and another) and AIR 2010 (SC) 1898 - (Rangappa Vs. Mohan). Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
16. In view of the specific defence taken by the accused, as against the claim of the complainant, now the evidence available on file is analyzed, in support of the defence of the accused, the accused herself examined as DW.1 and got marked "stop payment letter" dated 02.07.2015 issued by her to her banker as per Ex.D1 and statement of account relating to her account for the period from 02.06.2014 to 31.12.2017 as per Ex.D2. As already stated in this case, the accused has specifically denied the monitory transaction as put up by the complainant and so also the financial capacity of the complainant to lend such huge amount of Rs.9,50,000/-. In this regard if the material available on file is analyzed, absolutely there is no any piece of document to evidence the transaction as well as the financial capacity of the complainant to lend such huge amount except the self serving assertion of the complainant. As argued by the learned counsel for the accused, it is pertinent to note that the complainant claims that he had 15 C.C. No.60865/2017 lent huge amount of Rs.9,50,000/- to the complainant on 02.05.2017, but nowhere either in the notice or in the complaint or in the evidence he has stated as to for what purpose the accused had sought for the amount and what is the source for the complainant to lend such huge amount. In this regard, the evidence of the complainant during cross- examination is analyzed, during cross-examination he has stated that " ¢£ÁAPÀ 02-05-2017 gÀAzÀÄ £À£Àß §½ 9,50,000/- gÀÆ¥Á¬Ä EzÀÝ PÀÄjvÀÄ zÁR¯Áw EgÀÄvÀÛzÉ. CzÀ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ¥Àr¸À®Ä AiÀiÁªÀÅzÀÉà vÉÆAzÀgÉ E®è." This evidence of the complainant reveals that he has a document to show that he had Rs.9,50,000/- with him on 02.05.2017 and he has no hurdle to produce the said document before the court. But in spite of the specific defence taken by the accused, the complainant has not opted to produce such available document with him. This being the fact an adverse inference has to be drawn against the complainant for non-production of the said material document before the court in the light of the specific contention taken by the accused.
17. Further, it is also noticed form the cross- examination of the complainant that he had account in State Bank of India and Indian Overseas Bank and he had no hurdle to produce the bank statement for the period 2016 and 2017. But the complainant has not opted to produce 16 C.C. No.60865/2017 the bank statement though the accused has specifically denied the financial capacity of the complainant. Along with the above aspects, it is also noticed from the cross- examination of the complainant that he is well aware as to demonetarization step taken by the Government by banning old currencies of Rs.500/- and Rs.1,000/- and after 08.11.2016 the monitory transaction of more than Rs.2 lakhs in cash was banned. Further the complainant himself admitted that since 08.11.2016 up to June 2017 only Rs.50,000/- could be drawn from one account. This being the fact, it is pertinent to note that the complainant claims that the accused approached him on 02.05.2017 requesting Rs.9,50,000/- and he had lent the said amount on the same day. If that is so, it is not understood from where the complainant had collected such huge amount so as to lend the same to the complainant on the very same day. These aspects are looked into, it creates doubt in the mind of the court as to very monitory transaction as put up by the complainant. Even the learned counsel for the complainant could not convince this court as to non-production of available document with the complainant to show that he had Rs.9,50,000/- as on 02.05.2017.
18. As argued by the learned counsel for the complainant, the complainant has produced the original sale deed dated 05.11.2004 as per Ex.P7, which is in the name 17 C.C. No.60865/2017 of the mother of the accused to support the monitory transaction. But it is pertinent to note that the said document is produced belatedly at the time of cross- examination of the accused and the complainant has not stated anything as to said document either in the notice or in the complaint. If at all the said document was given to support the monitory transaction, definitely the complainant could have stated the said fact in his notice or at least in the complaint, which was not done. Further the said document does not belonged to the accused, but admittedly it belongs to her mother. If the said document belongs to the accused herself then the matter would have been little bit different. Under these attending circumstances, Ex.P7 cannot be considered as a document to support the monitory transaction as argued by the learned counsel for the complainant.
19. The accused has specifically contended that she had lost her one cheque in the month of June 2015 and she came to know about the said fact at the end of June 2015 itself and immediately she had issued "stop payment letter"
to her banker in that regard. Admittedly cheque was dishonoured for the reason "payment stopped by the drawer". Now the contents of Ex.D1 and D2 are analyzed, it is clear that on 02.07.2015 itself the accused had issued "stop payment letter" with regard to the cheque in question 18 C.C. No.60865/2017 as per Ex.D1 and the same is found in Ex.D2 also. The contents of Ex.D1 reveals that the "stop payment letter"
issued by the accused is specifically referring to cheque bearing No.147849 relating to S.B Account No.10406863189 i.e cheque involved in this case. In the said letter, the accused has specifically stated that she had lost the said cheque and sought for stop payment of the said cheque. Ex.D1 is found to be issued at undisputed point of time and much earlier to the monitory transaction as stated by the complainant. Therefore the contents of Ex.D1 clearly support the defence of the accused. Further the contents of Ex.D2 is analyzed, it appears that the accused has maintained approximately similar balance amount through out the years since 2013 to 2017. It is pertinent to note that admittedly the complainant and accused are very close relatives and the husband of the accused died about 15 years back. After death of the husband of the accused, the accused used to take assistance form the complainant. This aspect makes it very clear that the complainant had access to the house of the accused. Further admittedly Ex.P1- cheque is analyzed, the signature of the accused in the cheque is found to be in one ink and the remaining handwritings are found to be in different ink. If at all the accused herself had issued the said cheque, she should have filled up the cheque by using the same pen. Under these 19 C.C. No.60865/2017 attending circumstances, one cannot totally rule out the defence of the accused.
20. With the above aspects, it is also noticed that admittedly the accused is the Government employee and thereby she has definite monthly income. Admittedly already the children of the accused also married. This being the fact, it is not understood as to what were the circumstances for the accused to avail such huge amount from the complainant as hand loan. As already stated in this regard there is no any particulars available form the complainant. Further the suggestions put to the mouth of the accused during her cross-examination reveal that since May 2017, the accused was financially in better position. Such being the fact the question that would again arises is what was necessity for the accused to have such huge loan amount. It is clear from the suggestions put to the mouth of the accused that the accused used to clear earlier loan and to take fresh loan from time to time till April 2017. It is also clear that the accused used to clear the loan by using the cheques and almost all cheques were used by her only to clear the loan. If this is the case, the accused could have taken fresh loan if at all she was in a need of finance for any purpose. In this angle also the defence of the accused is found to be more probable.
20 C.C. No.60865/201721. As argued by the learned counsel for the complainant in this case, as discussed earlier the notice issued by the complainant after bouncing of the cheque is found to be served on her and she has not issued any reply to the said notice. But just because, the accused had not issued reply to the legal notice that alone cannot be a sole ground for upholding the claim of the complainant in toto. However the non-issuance of reply may be a one of the circumstances to support the version of the complainant to some extent.
22. Thus for the reason discussed above, this court is of the considered view that though the complainant is entitled for presumptions U/s.139 and 118 of N.I. Act, the same are found to be rebutted by the accused. Absolutely there is no evidence available on behalf of the complainant to prove the hand loan transaction as put up by him. On going through the entire evidence available on file, as discussed above, the defence of the accused is found to be more probable and convincing. In the light of the evidence on record there arises doubt as to very loan transaction itself as put up by the complainant and naturally the benefit of which goes to the accused. In the decision of our Hon'ble High Court reported in 2013 (1) DCR 326 - (Nandini Agro Fertilizers Vs D. Satish) - "If there are circumstances to prove the probable defence, that itself is sufficient to dismiss 21 C.C. No.60865/2017 the complaint". Under the facts and circumstances of the present case, this court is of the considered view that the said decision is applicable to the facts of the present case also. This court is also being guided by the ruling of the Hon'ble Apex court in Rangappa's case. But if the facts of the said case and facts of the present case with available evidence and circumstances are analyzed, it is clear that the said decision is not helpful to the complainant to accept his contention. The facts of the present case is found to be different from the facts and circumstances of the Rangappa's case. Hence, considering all these aspects, this court is of the considered view that the accused has made out probable defence and the complainant has failed to prove the very loan transaction and issuance of cheque towards discharge of the due amount and thereby has failed to prove the commission of the offence punishable U/s.138 of N.I. Act as against the accused. Therefore, Point Nos.1 and 2 are required to be answered in negative. It is needless to say that when the complainant has failed to prove Point Nos.1 & 2 in her favour as contended, it goes without saying that he is not entitled for any relief as sought for in this case. Therefore Point Nos.1 to 3 are required to be answered in negative and answered accordingly.
22 C.C. No.60865/201723. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following....
ORDER Acting under Section 255(1) of Cr.PC accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bond of accused stands cancelled. The cash security is deposited by the accused is ordered to be refunded in her favour in accordance with law.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 20th Day of June, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 23 C.C. No.60865/2017 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. N. Saravana Rajan
Witnesses examined for the defence:
DW.1 : Smt. Shylashri
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P2 : Bank endorsement
Ex.P3 : Legal Notice
Ex.P4 : Postal receipt
Ex.P5 : Returned postal cover
Ex.P6 : Postal track consignment
Ex.P7 : Absolute Sale Deed
Documents marked for the defence:
Ex.D1 : Stop payment letter
Ex.D2 : Statement of Account
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU