Bangalore District Court
Smt. Padmavathi.R.S vs Smt. N. Mala on 7 April, 2015
IN THE COURT OF THE XVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
DATED : THIS THE 7TH DAY OF APRIL 2015
PRESENT: LAKSHMINARAYANA BHAT.K., B.A., LL.B.
XVIII ADDL.C.M.M., BANGALORE
C.C.NO: 26284/2014 AND C.C.NO: 25763/2014
Complainant: Smt. Padmavathi.R.S.
W/o. M.L.Prakash Kumar,
Aged about 52 years,
Residing at No: 111,
"Samrudhi", 12th Cross,
12th Main Road,
III Phase, Girinagar,
Bangalore-560 085.
(Represented by Shri. M.L.P.Kumar.,,
Advocate)
V/s.
Accused : Smt. N. Mala,
W/o.Shivakumar.N.,
Aged about 52 years,
Residing at No:10,
"Megaharshitha",
Anjanaya Krupa,
12th Cross, 12th Main Road,
III Phase, Girinagar,
Bangalore-560 085.
(Represented by Sri.C.R.Muniyappa.,
Advocate)
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Final order Accused is found not guilty
Date of order: 7/4/2015
2 C.C.No:26284/2014 C/w.
C.C.No:25763/2014
JUDGMENT
The complaint was filed against the accused for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter in short referred as N.I. Act.).
2. After filing of the complaint, cognizance of the offence was taken. After recording sworn statement in pursuance of summons, presence of the accused was secured and she was enlarged on bail. The substance of accusation was recorded and the accused pleaded not guilty.
3. To prove the complaint averments, the complainant was examined as P.W.1 and has produced documents marked as per Ex.P.1 to Ex.P.7 in C.C.No: 25763/2014 and Ex.P.1 to Ex.P.5 in C.C.No:
26284/2014. The accused was examined and her statement under Section 313 of Cr.P.C was recorded. The accused has not led any evidence in defence.
4. Heard the arguments. The learned advocate appearing for the accused has placed reliance on following reported Judgments.
(1) 2015 SAR (Criminal) 162 in K. Subramani V/s. K. Damodara Naidu.
(2) 2014 AIR SCW 2158 in John.K.Abraham V/s.
Simon C. Abraham and another.
(3) AIR 2010 SC 1898 in Rangappa V/s. Mohan.
3 C.C.No:26284/2014 C/w.
C.C.No:25763/2014 (4) 2007 AIR SCW 6736 in John.K.John V/s. Tom Varghese and another.
(5) AIR 1994 SC 853 in S.P.CHengalvaraya Naidu (dead) by L.R.s V/s. V. Jagannath (dead) by L.R.s.
(6) 2008 AIR SCW 738 in Krishna Janardhan Bhat V/s. Dattatraya G. Hegde.
(7) (2013) 3 SCC 86 in Vijay V/s. Laxman and another.
(8) (2006) 3 SCC (Cri.) 30 in M.S.Narayana Menon V/s. State of Kerala and another.
(9) 2013 (1) DCR 326 in Nandi Agro Fertilizers V/s. D. Satish S/o. D. Jayanna.
5. After analyzing the averments made in the complaint, oral and documentary evidence placed on record and after hearing the arguments, at this stage the points that arise for my determination are:-
1) Whether the complainant has proved on
18/6/2014 she had advanced hand loan of
Rs.32,50,000/- to the accused and Ex.P.1 cheques issued in discharge of the said debt in both the cases were dishonoured and even after service of notice the accused had failed to pay the amount and thereby she is guilty of the offence punishable under Section 138 of N.I.Act?
2) What order?
6. My findings on the aforesaid points are as under:-
POINT NO.1 : In the Negative, 4 C.C.No:26284/2014 C/w. C.C.No:25763/2014 POINT NO.2 : As per final order, for the following:-
REASONS
7. POINT NO.1:- As per the complaint averments, the complainant and accused are known to each other for the last several years and they are residing in the same area. That on 18/6/2014 the accused approached the complainant and demanded hand loan of Rs.32,50,000/- for her urgent requirements. She had promised to repay the said amount to the complainant within one month together with interest at the rate of 1.5% per month. She had also executed a demand promissory note and consideration receipt dated 18/6/2014. It is submitted in the second week of July 2014 the complainant had demanded repayment of the loan and at that time the accused had issued two cheque in favour of the complainant bearing No:139750 dated 18/7/2014 for Rs.20,00,000/- and Cheque No:222524 dated 14/8/2014 for Rs.12,50,000/- for the repayment of the aforesaid loan amount. The aforesaid cheques are the subject matter of each case. The complainant presented Cheque No: 139750 dated 18/7/2014, but as per memo dated 22/7/2014 it was returned unpaid with an endorsement "Funds Insufficient". The complainant presented Cheque No:222524 dated 14/8/2014, and the said cheque also was dishonoured and he received a memo dated 16/8/2014 with an endorsement "Account closed". After both the cheque were returned unpaid by the Bank, the complainant got 5 C.C.No:26284/2014 C/w. C.C.No:25763/2014 issued legal notice dated 14/8/2014 and 22/8/2014 calling upon the accused to make the payment of the cheque amount. The accused had promised to repay the said amount within 10 days. But after dishonour of the cheque the accused had promised to repay the said amount but she did not keep up her promise. The notice sent to the accused returned to the sender with an endorsement "addressee absent, intimation delivered, not claimed". The accused has neither made the payment of the cheque amount nor sent any reply. The complainant in his affidavit filed in lieu of examination-in-chief deposed as per the averments made in the complaint.
8. During cross-examination of the complainant and during the course of argument, the defence of the accused is that she has denied borrowed loan of Rs.32,50,000/- from the complainant or in discharge of the said debt issued Ex.P.1 cheques which are the subject matter of both the complaints in favour of the complainant. She has specifically challenged the financial capacity of the complainant to advance huge amount of Rs.32,50,000/-. The accused has disputed she had issued Ex.P.1 cheque in favour of the complainant in discharge of any debt or liability. As per her contention, Bhagyalakshmi got Ex.P.1 cheque and she got presented the cheque through the complainant and filed a false complaint for wrongful gain. For the aforesaid reasons the accused has prayed for dismissal of the complaint.
6 C.C.No:26284/2014 C/w.
C.C.No:25763/2014
9. As per the complaint allegations, evidence of P.W.1 and Ex.P.3 statutory demand notice, that on 18/6/2014 the complainant claimed to have advanced Rs.32,50,000/- hand loan to the accused through cash. During cross-examination P.W.1 deposed the accused had demanded loan of Rs.40 to 50 Lakhs but the complainant was not having so much of amount and hence she had paid only Rs.32,50,000/-. This fact has been elicited during cross-examination of the complainant. Ex.P.7 is the demand promissory note alleged to have been executed on 18/6/2014 by the accused in favour of the complainant as on the date of transaction. Ex.P.7 is the only document available on record in support of the complaint alleged transaction. During cross-examination of the complainant, the accused has not disputed her signature appearing in Ex.P.7 demand promissory note or Ex.P.1 cheque. As per the recitals of Ex.P.7 demand promissory note, the accused had borrowed a sum of Rs.32,50,000/- and had agreed to repay the said amount with interest thereon at 1.5% per month.
10. During cross-examination of the complainant, the accused has disputed the financial capacity of the complainant to advance huge amount of Rs.32,50,000/-. As per the evidence, the complainant is a house wife and she is also a Landlady. As per her evidence, she is getting Rs.2,00,000/- per month as rent from the building. In support of the aforesaid contention, she has not produced the copy of the lease deed 7 C.C.No:26284/2014 C/w. C.C.No:25763/2014 executed by the tenants or placed any evidence in support of her contention. As per the evidence of the complainant deposed during her cross-examination, out of Rs.32,50,000/-, Rs.7,50,000/- was paid out of her savings and balance amount of Rs.25,00,000/- belonged to her daughter and Son-in-law. It is further deposed the said amount belonging to her daughter and Son-in-law of the complainant was with her in connection with the construction of residential building. On considering the oral evidence of the complainant elicited during cross- examination, the question arises for determination is whether any prudent man will keep Rs.32,50,000/- cash in their house. Moreover, the testimony of the complainant that she has paid Rs.25,00,000/- money belonging to her daughter and Son-in-law without their consent to the accused is unbelievable. Moreover, the complainant has not placed any evidence to show her daughter and Son-in-law had kept ready cash of Rs.25,00,000/- with the complainant and the said amount was with the complainant in connection with construction of their residential building. The complainant has not produced her Bank account extract to prove her financial capacity. During cross-examination, P.W.1 deposed the tenants were depositing the rents in respect of the building to the Bank account of the complainant. Therefore, the complainant could have produced those documents to substantiate her claim that she is getting Rs.2,00,000/- per month as rent from the tenants. The complainant further admitted she is not aware since how many years she 8 C.C.No:26284/2014 C/w. C.C.No:25763/2014 has been paying income tax. She has not produced any documents in support of payment of income tax. She has not whispered whether the complaint alleged transaction had been disclosed in the documents submitted to the income tax department or the complainant has paid tax on the said amount. It is not in dispute the amount of Rs.32,50,000/- is a taxable income. Since the complainant has not produced any documents regarding payment of income tax, the inference to be drawn is she was not having income as deposed in her evidence.
11. During cross-examination, the complainant has admitted she had not disclosed the complaint alleged transaction to her husband or her daughter. The accused had issued two cheques in favour of the complainant in the second week of July 2014 and it appears he had issued both the cheques on the same day. The cheques were post dated 18/7/2014 and 14/8/2014 for Rs.20,00,000/- and Rs.12,50,000/-. Ex.P.1 cheques in both the cases were drawn on Axis Bank Limited, Banashankar Branch, Bangalore bearing No:139750 in C.C.No:
25763/2014 and Cheque No: 222524 in C.C.No: 26284/2014. From these documents, we can ascertain these cheque leaves are not from the same cheque book. In the event the accused had issued both the cheque on the same day in the month of July 2014, there is every possibility that under normal circumstances the drawer issues two cheques of the same cheque book. The case of the complainant that the accused had issued 9 C.C.No:26284/2014 C/w. C.C.No:25763/2014 two post dated cheques of different dates is probable. In this regard, during cross-examination of the complainant the witness has shown ignorance whether Ex.P.1 cheque in both these cases were pertaining to the same cheque book or different books. As per the contents of Ex.P.7 demand promissory note, the accused had promised to repay the loan amount with interest thereon at 1.5% per month (18% per annum). But the cheque amount not includes interest for the aforesaid period is one of the strong circumstances to suspect the complaint alleged transaction. In this regard the complainant has also not forwarded any explanation the reason behind the accused had not issued cheque for the interest on the loan amount. The complainant has admitted there was no previous financial transaction between herself and the accused. In the result, the complainant for the first time had advanced huge amount of Rs.32,50,000/- to the accused is also unbelievable.
12. During cross-examination of the complainant, the learned Advocate appearing for the accused has tried to contend non-service of Ex.P.3 statutory demand notice issued by the complainant. As per Ex.P.5 postal envelope, in both the cases there is an endorsement "door locked, intimation delivered, unclaimed, return to the sender". The accused has not produced any documentary evidence in order to prove his correct postal address. Even the learned defence counsel during cross-examination of the complainant has not contended the address 10 C.C.No:26284/2014 C/w. C.C.No:25763/2014 mentioned in the notice and postal cover is incorrect. Therefore, the complainant has discharged her burden by sending notice to the last known correct address is made out from the documentary and oral evidence produced by the complainant. As per Section 27 of General Clauses Act, there is a presumption regarding letter sent through Registered post. The endorsement made in Ex.P.5 Postal cover shows the accused had deliberately evaded service of notice and it is sufficient to hold deemed service of notice. Ex.P.6 is the postal acknowledgement in proof of service of Ex.P.6 demand notice on the husband of the accused. But such service of notice is not a legal requirement and even though the notice was served on the husband of the accused, it is not proper to hold valid service. In this regard I have referred the Judgment of Hon'ble Apex Court reported in 2007 AIR SCW 3578 in C.C.Alavi Haji V/s. Palapetty Muhammed and another. In Para No:17 of the said Judgment, Hon'ble Apex Court held as below.
It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the Court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by 11 C.C.No:26284/2014 C/w. C.C.No:25763/2014 receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C.Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case, if the giving of notice in the context of Clause(b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
13. During cross-examination of the complainant, the accused has contended she had filed a Petition to the police against 13 persons alleging they are demanding exorbitant rate of interest from her. The accused has not produced the copy of the alleged Petition said to have been submitted to the police. During cross-examination of the complainant, Bhagyalakshmi was present before the Court. She had accompanied with the complainant as on the date of hearing. The complainant has not forwarded any explanation the reason behind presence of Bhagyalakshmi in the Court and her interest in the two complaints. It is suggested on behalf of the accused that Bhagyalakshmi 12 C.C.No:26284/2014 C/w. C.C.No:25763/2014 got filled Ex.P.1 cheque in both the cases through the complainant, presented for encashment and got filed these complaints for wrongful gain. In view of presence of Bhagyalakshmi during cross-examination of the complainant, this defence of the accused also appears to be probable. As per Section 139 of N.I. Act Court shall presume that the cheque had been issued in discharge of any debt or liability and the burden to rebut the said presumption is upon the drawer of the cheque.
14. In the case on hand, during cross-examination of the complainant the accused has successfully made out Ex.P.1 cheque was not issued in discharge of any debt or liability. It is further prima facie proved the contention of the complainant regarding advancement of loan of Rs.32,50,000/- is doubtful. The evidence on record and other attending circumstances clearly shows Ex.P.1 cheques in both the cases were not issued in discharge of any debt or liability. In this regard, as per the Judgment relied on by the learned defence counsel in Rangappa's case referred supra, in Para No.14 of the Judgment Hon'ble Court held, it is a settled proposition that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore if the accused is able to raise a probable defence which creates doubt about existence of legally enforceable debt or liability, the prosecution can fail. In the other 13 C.C.No:26284/2014 C/w. C.C.No:25763/2014 Judgment reported in 2014 AIR (Criminal) 1 in John K.Abraham V/s. Simon.C.Abraham and another, Hon'ble Apex Court held "Presumption under - Drawing of Party on whom burden for the same lies - Such burden heavily lay upon the complainant to show - (1) that he had required funds for having advanced the money to the accused - (2) further that the issuance of the cheque in support of such payment advanced was true and
- (3) that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant".
From the evidence available on record and from the defence put forwarded by the accused, she has successfully made out Ex.P.1 cheque was not issued in discharge of any debt or liability. The complainant has failed to prove her financial capacity to advance Rs.32,50,000/- hand loan to the accused and in discharge of the said debt accused had issued Ex.P.1 cheques in her favour. For the aforesaid reasons, my findings on Point No.1 is in the Negative.
15. POINT NO.2:- In view of my findings on Point No.1., the accused is liable to be acquitted for the offence punishable under Section 138 of N.I. Act. Therefore, I proceed to pass the following:-
ORDER Acting under Section 255 (1) of Cr.P.C, accused is acquitted for the 14 C.C.No:26284/2014 C/w. C.C.No:25763/2014 offence punishable under Section 138 of Negotiable Instruments Act 1881. She is set at liberty. The bail bond and surety bonds hereby stands discharged.
The original Judgment shall be kept in C.C.No: 25763/2014 and the copy shall form part of the record in C.C.No: 26284/2014. (Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 7th day of April 2015).
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.
ANNEXURE FOR C.C.NO: 25763/2014
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Smt. Padmavathi.R.S.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque No: 139750 dated 18/7/2014
for Rs.20,00,000/-.
Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Bank endorsement.
Ex.P.3 : Office copy of demand notice.
Ex.P.4 : Two postal receipts.
Ex.P.5 : Postal cover.
Ex.P.6 : Postal acknowledgement.
Ex.P.7 : Promissory note and consideration receipt.
Ex.P.7(a) : Signatures in Ex.P.7 documents.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
- Nil -
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
- Nil -
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.15 C.C.No:26284/2014 C/w.
C.C.No:25763/2014 ANNEXURE FOR C.C.NO: 26284/2014
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Smt. Padmavathi.R.S.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque No: 222524 dated 14/8/2014
for Rs.12,50,000/-.
Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Bank endorsement.
Ex.P.3 : Office copy of demand notice.
Ex.P.4 : Two postal receipts.
Ex.P.5 : Postal cover.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
- Nil -
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
- Nil -
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.16 C.C.No:26284/2014 C/w.
C.C.No:25763/2014 (Judgment pronounced in Open Court vide a separate Order) ORDER Acting under Section 255 (1) of Cr.P.C, accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. She is set at liberty. The bail bond and surety bonds hereby stands discharged.
The original Judgment shall be kept in C.C.No: 25763/2014 and the copy shall form part of the record in C.C.No: 26284/2014.
XVIII A.C.M.M., BANGALORE.