Bangalore District Court
K.R.Lakshmi vs Annadani on 10 May, 2018
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 10th day of May - 2018
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.16762/2014
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : K.R.Lakshmi,
R/at No.103, 1st Floor,
1C, ISRO Housing Colony,
RPC Layout, Vijayanagar,
Bengaluru-40.
(Rep. by Sri.A.G.Prahallad, Adv.)
V/S
Accused : Annadani,
Aged about 46 years,
No.104, 2C, 1st Floor,
ISRO Layout, RPC Layout,
Vijayanagar, Bengaluru-40.
(Rep.by Sri.S.G.Maheshwara, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 10.05.2018.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.16762/2014
JUDGMENT
The complainant has presented the instant complaint against the accused on 28.02.2014 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque amount of Rs.3 lakhs.
2. The factual matrix of the complainant case is:
The accused being knew to the complainant, in the month of June, 2013 the accused has borrowed sum of Rs.3 lakhs for his immediate domestic necessities and having received the said money, he undertakes to repay the same within 6 months.
Towards, repayment of the said money, the accused got issued a post dated cheque bearing No.468918, dated:24.12.2013 for Rs.3 lakhs, drawn on State Bank of India, ISRO, Vinanpura, Bengaluru in favour of the complainant and assuring to honour the same.
The complainant has further contended and alleged that, reposing faith, confidence and trust on the accused, she accepted the cheque and presented it for encashment before her banker viz., Canara Bank, Sri Adichunchanagiri Mahasamsthana Mutt, Vijayanagar, Bengaluru, but the said cheque came to be dishonoured for the reasons "Exceeds Arrangement", as per Judgment 3 C.C.16762/2014 memo dated:01.01.2014. The said fact brought to the notice of the accused, wherein he pleaded certain financial difficulties and agreed to repay the amount went on postponing on one or other reasons. Therefore, on 20.01.2014 she gave legal notice by R.P.A.D to the accused through her counsel, and the same was duly served upon accused on 21.01.2014. The accused not comply the demand, but accused got issued untenable reply on 04.02.2014.
Though, the accused got issued the cheque not maintain sufficient funds in his account, thereby he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, the present complaint.
3. After receipt of private complaint, the then presiding officer took the cognizance and registered the PCR. After recording the sworn statement, since found prima facie grounds to proceed against the accused got registered the criminal case in register No.III and ordered to issue the summons.
4. In response to the summons, the accused got appeared before this court and obtained the bail and required copies were supplied on him. Therefore, recorded the plea, wherein he denied the same and claimed to have the defence.
Judgment 4 C.C.16762/2014
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P6. The PW.1 subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer was given by him is recorded. In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D1 to D6 and also subjected for cross- examination by the advocate for the complainant.
7. Heard the arguments of both side.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, she paid sum of Rs.3 lakhs in the month of June, 2013 as hand loan to the accused, and in turn for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.468918, dated:24.12.2013 for sum of Rs.3 lakhs drawn on State Bank of India, ISRO Vinanapra, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?Judgment 5 C.C.16762/2014
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
10. POINT NOs.1 & 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 in his affidavit reiterated the complaint averments and allegations and got marked Exs.P1 to P6, which are:
a) Ex.P1 is the admitted cheque bearing No.468918, issued by the accused for sum of Rs.3 lakhs, dated:24.12.2013 for sum of Rs.3 lakhs drawn on State Bank of India, ISRO Vinanapra, Bengaluru.
b) Ex.P1(a) is the admitted signature of accused.
c) Ex.P2 is the Bank Memo dated:01.01.2014.
d) Ex.P3 is the Legal Notice dated:20.01.2014.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the Postal Acknowledgment Card, and
g) Ex.P6 is the reply notice dated:04.02.2014 issued by the accused through his counsel to the complainant denied the contents of legal notice.Judgment 6 C.C.16762/2014
The PW.1 was subjected to the cross-examination by the advocate for the accused.
11. Likewise to prove the defence of the accused, apart from denial of allegations made against him and incriminating evidence made against him, he choosen to examined as DW.1 and filed the affidavit evidence. Wherein, he contended in brief:
In the year 2013, he had obtained loan from one B.Somashekar, Proprietor of Vinayaka Finanace, No.703, 1st Main, 3rd Cross, Domlur Layout, Bengaluru and for the security purpose he had issued signed blank cheques bearing Nos.468918 to 468925.
After clearance of the said loan, the said cheques were got returned by the said finance and he brought the same to his home and kept them in the showcase of all in his house.
12. The DW.1 has further contended that, the husband of the complainant by name Shankar Naik.S.P and himself are colleagues, working in ISRO and they have been provided apartment to them, accordingly, their families staying next to each other for many years, thus there was the family members were pretty close to each other. Accordingly, the wife of the accused go to the house of the Judgment 7 C.C.16762/2014 complainant, accordingly the complainant used to come to the house of the accused regularly. The DW.1 strongly believed that, when the complainant was regularly used to visit his house on account of the friendship with his wife and complainant shared, on one such visit, the complainant has slipped away the cheque bearing No.468918 which is in question from the showcase of the hall from his house. On some trivial issues, the friendship between the complainant's family and the accused sever and there was a quarrel between them and they are not in talking terms with each other. Now taking revenge and cause pain and tension to the accused, the complainant cooked up the false story stating that, she gave Rs.3 lakhs loan and for the repayment of the same, the accused got issued the questioned cheque to her falsely. Infact, the accused never taken any loan from the complainant nor issued the questioned cheque for repayment of the same.
13. The accused has further contended that, except the salary of the husband of the complainant, the complainant and her family has no other source of income during the year 2013, the husband of the complainant was working as technician F1 in ISRO. The son of the accused by name Naveen Annadani had filed an application under Judgment 8 C.C.16762/2014 the RTI Act to get details of salary of the husband of the complainant for the period of 2013, the concerned officer got provided the information stating the gross salary of the husband of the complainant in the month of May, Rs.30,303/-, after deduction his take home salary was of Rs.10,343/-, and the gross salary in the money of June, 2013 was Rs.31,241/-, after deduction, he take home salary was of Rs.11,151/-. This being the income of the complainant family, during the months of May and June, 2013 alleged to be lend the sum of Rs.3 lakhs to the accused, she has no financial capacity. But, though he not borrowed any alleged loan nor issued the cheque for its repayment, by written the signed blank cheque, taken out from his house and filed the false case against him, the said writings are in different ink and hand writing. The complainant has filed the false case due to vengeance and ill-will. Hence, prayed for his acquittal. He also subjected for cross- examination and produced the documents at Exs.D1 to D6. They are:
a) Ex.D1 is the information provided by the Department of Space under RTI Act, seeking for the salary particulars of the husband of the complainant.
b) Ex.D2 is the Indian Postal Order.Judgment 9 C.C.16762/2014
c) Ex.D3 is the covering letter enclosure of the details issued by the Accounts Officer of ISRO Satellite Centre, Bengaluru along with the pay particulars of the husband of the complainant for the period March, 2013 till December, 2013.
d) Ex.D4 is the certificate issued by the Vinayaka finance stating on account of settlement arrived in respect of C.C.No.27637/2003 returned the cheques bearing Nos.468918 to 468925 to the accused on 14.06.2017.
e) Ex.D5 and D6 are the copies of pay slips pertaining to the husband of the complainant for the period May and June, 2013.
14. On going through the defence taken by the accused, it made clear that, he is not accepted the allegations of borrowing of loan of Rs.3 lakhs or issue the cheque for its repayment, but contending that, the complainant, on acquaintance of the family of accused closeness and slipped away the questioned cheque and on account of subsequent quarrel between their families for an vengeance she filed the false case by alleging the un-borrowed loan. Thereby, the accused has attacked on the very financial capacity of the complainant and borrowing of loan as narrated in his affidavit as well as suggestion put forth to the PW.1 during her cross- examination. No doubt, as per Section 118 of Negotiable Instruments Act, the initial presumption drawn in favour of the complainant that, she being the drawer of the said cheque possessed the same for the payment made mentioned therein payable by the Judgment 10 C.C.16762/2014 accused to her. On account of Section 139 of Negotiable Instruments Act, it also presumed that, the amount or consideration made mentioned in the questioned cheque is payable by the accused which is the legally recoverable debt, and both the provisions are subject to the rider of the contrary proves by the accused. Through out the case, from the inception by way of causing reply notice, the accused got attacked the very claim put forth by the complainant based on the questioned cheque as well as passing of consideration and questioned the financial capacity of the complainant. Therefore, it is the burden lies upon the complainant to prove her financial capacity and passing of consideration of loan of Rs.3 lakhs from her to the accused and in turn, for its repayment, the accused got issued the questioned cheque at Ex.P1. In that context, it is just and proper to appreciate the materials on record.
15. On going through the rival contentions of the parties, the fact that, the husband of the complainant and accused were working together in ISRO as technician and they have provided the apartments staying next to each other and their families were very close to each other is not in dispute. The fact that, the address of the complainant and accused as per the cause title of the complaint Judgment 11 C.C.16762/2014 is also not in dispute. The fact that, the Ex.P1-cheque belongs to the accused and the signature found therein is of him is not in dispute. The fact that, the said cheque came to dishonoured on account of Existing arrangement of money in the account of the accused and thereafter she caused legal notice as per Ex.P3 and in turn as per Ex.P6 the accused got issued the reply notice by denying the very transaction are also not in dispute.
16. In this case, the accused has questioned the financial capacity of the complainant regarding issuance of the alleged loan to him, but strongly contended that, he never borrowed the alleged loan, but she slipped away singed blank cheque in his house from the showcase and on the account of subsequent vengeance she filed the false case by filled the money to the said cheque. Therefore, in order to show that, the complainant has no independent financial capacity, but she has relied upon the income of her husband, there was relevant suggestion was made during her cross-examination which runs thus:
"2003gÀ°è £ÀªÀÄä PÀÄlÄA§PÉÌ £À£Àß UÀAqÀ£À DzÁAiÀÄ MAzÉà JAzÀgÉ ¤d. £À£Àß UÀAqÀ PÉÃAzÀæ ¸ÀPÁðgÀzÀ £ËPÀgÀ JAzÀgÉ ¤d. ¥Àæw ªÀµÀð DzÁAiÀÄ vÉjUÉ ªÀgÀ¢AiÀÄ£ÀÄß ¸À°è¸ÀÄvÁÛgÉAzÀgÉ ¤d."Judgment 12 C.C.16762/2014
17. From the above suggestion put forth by the accused side, the PW.1 got admitted that, in the year 2003 perhaps that years has to be read as 2013 as the alleged transaction was made in the year 2013, on the date of alleged lending of loan, the complainant got no independent income, but she has the income through her husband only. She also admitted that, her husband is the central government employee and used to submit the income tax returns to the government. Though, she contended as such, she not choosen to produce the salary particulars of her husband or income tax particulars. Any how, she got admitted that, except the salary income of her husband, she has no other independent income. When she has not independent income she possess the huge money of Rs.3 lakhs does not arise, but she has to prove that, her husband has paid some portion of money for her expenses and she keep it with her, either in her hand or in her bank accounting or in the account of her husband, no such contention is taken by the complainant to prove the mobilize of funds, therefore it can presumed that, she has no independent income. To show that, her husband has the financial capacity of Rs.3 lakhs, the admitted documents of the husband of the complainant is tobe looked into which were produced by the accused as per Exs.D1 to D3, D5 and Judgment 13 C.C.16762/2014 D6. No doubt, the Ex.D1 discloses, the letter issued by the employer of the husband of the complainant regarding the application moved by the son of the accused by name Naveen Annadani for furnishing the salary particulars of the husband of complainant. The Ex.D2 and D3 are the postal order and letter moved by the accounts officer. But the documents enclosed with Ex.D3 regarding the salary particulars of the husband of the complainant by name Shankar Nayak, it discloses that, the bill of pay for the period 2012 to 2013. On going through the said documents it discloses, the salary available source and its deduction of the husband of the complainant. Apart from that, Ex.D5 and D6 are the crucial documents pertaining to the period of May and June, 2013.
18. On meticulous reading of the Ex.D5, it discloses that, in the month of May, 2013 the gross salary of the husband of the complainant was Rs.30,303/- and total deduction was Rs.19,960/-. In the month of June, 2013 out of the said total earnings Rs.31,241/-, deduction of Rs.20,090/-, from which, it made clear that, after statutory deduction in the month of May and June 2013, the husband of the complainant has received sum of Rs.10,343/- Judgment 14 C.C.16762/2014 and Rs.11,131/- in total in the month of May and June, 2013 he received salary of Rs.21,474/-. Under such circumstances, how the complainant got income of Rs.3 lakhs, she has not whispered anything in her legal notice, complaint or affidavit evidence. When she is getting the take home salary of Rs.11,131/-, how in the month of June, she arranged the money of Rs.3 lakhs, there is no whispered through out the case by the complainant.
It is relevant to cite the decision reported in AIR 2011 (NOC) 75 (KAR) (Amzad PashaV/s. H.N.Lakshmana). Wherein, it was pleased to held by the Hon'ble Apex court that:
(B) Negotiable Instruments Act (26 of 1881). S. 138 -
Dishonour of cheque - Accused alleged to have taken loan from complainant - Complainant has not placed any evidence to show that he had financial capacity to lend substantial amount of Rs.4,50,000/- - Admittedly no document evidencing the loan transaction has come into existence - Case of complainant that he had lent Rs.4,50,000/- to the respondent is highly impossible and not acceptable - None of witnesses in presence of whom loan amount was paid by complainant examined by complaint - Adverse inference can be drawn against complainant - Accused liable to be acquitted".
In another decision reported in SCC 2014 (2) 236 between John K.Abraham Vs. Simon C. Abraham and another, it is held that: Judgment 15 C.C.16762/2014
"Debt, Financial and Monetary Laws -
Negotiable Instruments Act, 1881 - Ss. 118, 139 and 138
- Dishonour of cheque - Drawing presumption under S. 118 r/w S.139 - Prerequisites for, when cheque is for repayment of a loan/advanced money - Proof required on the part of complainant - Held, in order to draw presumption under S.118 r/w S.139, burden lies on complainant to show: (i) that he had the requisite funds for advancing the sum of money/loan in question to accused, (ii) that the issuance of cheque by accused in support of repayment of money advanced was true, and
(iii) that the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant - In present case, complainant not aware of the date when substantial amount of Rs.1,50,000/- was advanced by him to appellant-accused - Respondent complainant failed to produce relevant documents in support of the alleged source for advancing money to accused - Complainant also not aware as to when and where the transaction took place for which the cheque in question was issued to him by accused - Complainant also not sure as to who wrote the cheque and making contradictory statements in this regard - In view of said serious defects/lacunae in evidence of complainant, judgment of High Court reversing acquittal of accused by trial court, held, was perverse and could not be sustained."
"Complainant also not aware as to when and where the transaction took place for which the cheque in Judgment 16 C.C.16762/2014 question was issued to him by accused - Complainant also not sure as to who wrote the cheque and making contradictory statements in this regard - In view of said serious defects/lacunae in evidence of complainant, judgment of High Court reversing acquittal of accused by trial court, held, was perverse and could not be sustained".
19. On going through the above said dictums, in regard to the mobilization of funds of Rs.3 lakhs, the complainant possessed as on the date of alleged lent, no explanation or no documentary evidence produced by her. Even, no proper explanation is also forth coming from her side, how she mobilized the requisite fund in order to lent to the accused is not demonstrated by her. The complainant has failed to produce the relevant document in support of alleged source of advancing money.
20. Even, during the cross-examination of PW.1, she deposed that:
"DgÉÆæ ªÀÄvÀÄÛ DgÉÆæAiÀÄ ºÉAqÀw E§âgÀÆ ¸Á®ªÀ£ÀÄß CªÀgÀ ªÀÄ£ÉAiÀÄ°è PÉýzÀÝgÀÄ. AiÀiÁªÀ wAUÀ¼ÀÄ, ªÀµÀðzÀ°è PÉýzÀÝgÀÄ J£ÀÄߪÀÅzÀÄ £É£À¦®è. dÆ£ï 2013gÀ°è DgÉÆæUÉ ¸Á®ªÀ£ÀÄß ¤ÃrgÀÄvÉÛãÉ, DzÀgÉ ¤¢ðµÀÖªÁzÀ ¢£ÁAPÀªÀ£ÀÄß ºÉüÀ®Ä §gÀĪÀÅ¢®è. ºÀtªÀ£ÀÄß CªÀgÀ ªÀÄ£ÉAiÀÄ°èAiÉÄà ¤ÃrgÀÄvÉÛãÉ. ¸ÀªÀÄAiÀÄ Judgment 17 C.C.16762/2014 UÉÆwÛ®è. gÁwæ CxÀªÀ ºÀUÀ®°è PÉÆnÖgÀÄvÉÛÃ£É J£ÀÄߪÀÅzÀÄ UÉÆwÛ®è. D ¸ÀªÀÄAiÀÄzÀ°è DgÉÆæAiÀÄ ºÉAqÀw ¸ÀºÀ EzÀÝgÀÄ. DgÉÆæAiÀÄ ªÀÄPÀ̼ÀÄ EgÀ°®è. £À£Àß eÉÆvÉ AiÀiÁgÀÆ EgÀ°®è. ºÀt ¤ÃrzÀ ¸ÀªÀÄAiÀÄzÀ°è DgÉÆæ¬ÄAzÀ AiÀiÁªÀÅzÉà zÁR¯ÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆArgÀĪÀÅ¢®è. ºÀt ¤ÃrzÀ MAzÀÄ ªÁgÀzÀ £ÀAvÀgÀ DgÉÆæ ZÉPÀÌ£ÀÄß ¤ÃrgÀÄvÁÛgÉ. DgÉÆæAiÉÄà ZÉPÀÌ£ÀÄß ¤ÃrgÀÄvÁÛgÉ. DUÀ ¸ÀªÀÄAiÀÄ JµÁVvÀÄÛ J£ÀÄߪÀÅzÀÄ UÉÆwÛ®è. DUÀ gÁwæ CxÀªÀ ºÀUÀ®Ä J£ÀÄߪÀÅzÀÄ UÉÆwÛ®è. DgÉÆæAiÀÄ ªÀÄ£ÉAiÀÄ°è DgÉÆæAiÉÄà ZÉPÀÌ£ÀÄß ¤ÃrgÀÄvÉÛãÉ. D ¸ÀªÀÄAiÀÄzÀ°è DgÉÆæ ªÀÄvÀÄÛ DgÀÉÆæAiÀÄ ºÉAqÀw EzÀÝgÀÄ."
21. From the above testimony of PW.1, it also discloses that, the PW.1 does not remember when accused was requested the loan and exactly when she lent to the accused is also not been explained by her. But she contended that, she does not remember the date, in the month of June, 2013 in the house of the accused she gave the money and she does not remember at what time, whether in the day or night she handed over money also she does not know. At the time of lent the alleged loan, the wife of the accused was present and when she handed over the said money in the house of the accused, she alone came and as on the date of issuing the alleged loan, admittedly she not taken up any documents from the accused. Judgment 18 C.C.16762/2014 She also deposed that, the Ex.P1-cheque was handed over one week after borrowing the alleged loan by the accused and even then, she does not remember exactly when the said cheque was handed over, whether it was a day or night. From the reading of the above testimony of PW.1 regarding the alleged approach made by the accused and handed over the money to the accused or issuance of Ex.P1-cheque itself is created the doubt regarding the genuineness of transaction. In support of the said contention, the complainant has not choosen to examine any one of the witness. The accused has taken the probable defence that, he not borrowed the money and the complainant got misused the cheque, therefore it is bounden duty of the complainant to remove the cost clouded on the alleged loan transaction. In that line, she has not made any effective efforts to prove the very borrowing of loan by the accused and handed over the cheque to her. From the evidence of PW.1 coupled with her pleading it made clear that, the complainant also not aware, as to when the transaction took place, for which the cheque in question was issued to her by the accused. The complainant also not sure doubt exactly, when the said transaction took place. It is significant fact to note that, during the course of cross-examination of PW.1, she deposed that:
Judgment 19 C.C.16762/2014
"¤¦-1 1999 E¸À«UÉ ¸ÉÃjzÀ ZÉPÁÌVgÀÄvÀÛzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ¤¦-1gÀ°è ¸À» ªÀÄvÀÄÛ G½zÀ §gÀªÀtôUÉ ¨ÉÃgÉ ¨ÉÃgÉ EAQ¤AzÀ §gÉAiÀįÁVzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ZÉQÌ£À°è DgÉÆæ CAQAiÀÄ°è ºÀtªÀ£ÀÄß §gÉzÀÄ ªÀÄvÀÄÛ ¸À»AiÀÄ£ÀÄß ªÀiÁr ªÀiÁvÀæ PÉÆnÖgÀÄvÁÛgÉ. G½zÀ §gÀªÀtôUÉAiÀÄ£ÀÄß CAzÀgÉ ¢£ÁAPÀ, ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ ¥ÀzÀUÀ¼À°è ªÉÆvÀÛªÀ£ÀÄß £Á£Éà §gÉ¢gÀÄvÉÛãÉ. ¤¦-1gÀ°ègÀĪÀ ¸À»AiÀÄ£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ J®è §gÀªÀtôUÉAiÀÄ£ÀÄß ªÀÄÄRåªÁV CAQAiÀÄ°è ºÀtªÀ£ÀÄß £Á£Éà §gÉ¢gÀÄvÉÛÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è."
22. From the reading of the said evidence, she discloses that, the Ex.P1 cheque was pertaining to the year 1999, and she denied that, the signature of the accused and other hand writings are in different ink, but she deposes that, the accused by affixing the signature and mentioned the amount in numeral and given the said cheque to the complainant and rest of the writings regarding date, name and amount in words and figures she herself wrote. The said aspect has denied by the accused, and strongly contended that, it was filled by the complainant herself. In that line, on going through the Ex.P1- cheque, meticulously it clearly manifest that, the Ex.P1(a) signature is made of in different ink and rest of the other writings are in different ink, both the hand writings prima facie appears to be in different. If at all, money made mentioned by the accused is Judgment 20 C.C.16762/2014 written by the accused definitely, the inks at Ex.P1(a) signature and numerals should be tallied. But, it does not so. From which, it is clear that, as she already admitted the name and date herself filled, it also presumed that, she also filled the numerals of Rs.3 lakhs. On going through Ex.P1-cheque and admission made by the PW.1 stating, she herself filled the cheque has to be presumed that, she possessed the singed blank cheque as alleged by the accused and she filled it as per her wish and whims and in order to give trouble to the accused for recover the illegal money of Rs.3 lakhs, though she not lent the same. Mere the possession of the cheque and signature of the accused itself is not enough to hold that, the accused is liable to be pay the cheque amount.
It is relevant to cite the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
"Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered Judgment 21 C.C.16762/2014 the said cheque to the complainant and the latter received if from the former".
23. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheque bares his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.
24. On going through the above said admitted facts and reasons discussed supra, the accused has made it clear that, he has taken probable defence from the inception by way of causing reply and contested the claim through out the case and he is successfully established the suspecting circumstances regarding the genuineness of very transaction. The very act of the complainant on account of the defence taken by the accused the conduct of the complainant is processing the matter without any base and logic all along by missing the court machinery has to be deprecated. Any how, as discussed above, the complainant herself sure that, she herself filled the cheque and the evidence of PW.1 is contradictory to her previous contents in legal notice and pleadings, there is so many lacks and defects in the evidence of complainant, therefore, the benefit of the doubt has to be given to the accused. Judgment 22 C.C.16762/2014
25. Though, the amount involved in the present case was of Rs.3 lakhs, definitely as required under the relevant provision of income tax Act, amount rupees more than Rs.20,000/- shall be payable to the cheque, but the complainant not follow the said procedure. In that regard also, it is just and proper to cite the decision reported in 2008 SAR (Criminal) 224 between Krishna Janardhan Bhat V/s. Dattatraya G.Hegde, the Hon'ble Supreme Court has observed that:
"When huge amount is lend as hand loan the complainant ought to have taken a written document for having lent such amount. If no such document is taken then a strong doubt arises in the case of complainant regarding payment of amount. Further the Hon'ble Supreme Court observed that, any amount lent more than Rs.20,000/-, then as per Section 69 SS of Income Tax was to be made by way of an account payee cheque only".
26. Regarding the traced out or slipped of the Ex.P1 questioned cheque by the house of the accused were suggested to the PW.1 during her cross-examination. Wherein, she deposed that, she does not know the questioned cheque was given as security to the Vinayaka Finance at the time of borrowing of loan. She denied the suggestions taken away the questioned cheque from the house of the accused. The Ex.D4, certificate issued by the Vinayaka Finance Judgment 23 C.C.16762/2014 also clearly manifest that, along with the questioned cheque, other cheques were given to the said finance as a security at the time of borrowing loan, on account of settlement arrayed in C.C.No.27637/2003 on 14.06.2007, those cheques were returned back to the accused. From which, it is clear that, once the questioned cheque was given to the said finance as security and after making payment, the accused got obtained the said cheques and kept in his house in the showcase has to be misplaced and from the source knowing to the complainant she secure the same and filed the present case in order to make illegally gain on account of there is enmity between the complainant and accused family has to be presumed. The accused by producing clear convincing, cogent documents has clearly demonstrated his probable defence and disproved the very case put forth by the complainant. As discussed above, the complainant has utterly fails to prove the passing of consideration of Rs.3 lakhs to the accused and in turn, the accused got issued the questioned cheque in her favour for the payment of existing legally recoverable debt. Therefore, from the above facts and circumstances, the benefit of doubt has to be given to the accused and consequently he has to be acquitted. Judgment 24 C.C.16762/2014
27. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, she fails to demonstrate her very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
In a decision reported in ILR 2008 KAR 4629 (Shiva Murthy V/s. Amruthraj). Wherein, the Hon'ble Court held that:
"On the date of the cheque, if no consideration was paid or if a loan was taken on a particular date and in discharge of the same the cheque was issued on the later date, then the presumption under Section 118(a) of the Negotiable Instruments Act stands rebutted".
28. The principles of law laid down in the above decision also applicable to the facts of the case. In the instant case, as appreciated above, it clearly manifested that, without any obligation from the side of the accused, as well as without narrating proper grounds, as to how, accused is liable to pay amount covered under the cheque alleged to be issued by the accused is also not demonstrated by the complainant satisfactorily. On the contrary, it can presume that, the said cheque was possessed by the Judgment 25 C.C.16762/2014 complainant from the unexplainable source, and falsely projected the case and failed to prove the same. Hence, there is no question of drawing presumption under Section 118(a) or 139 of the Negotiable Instruments Act, even though the signature in Ex.P1 is admitted by the accused. Just because, the cheque bares the signature of the accused, that, will not mandate the court to draw the presumption under Section 118 of Negotiable Instruments Act.
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act - Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".Judgment 26 C.C.16762/2014
29. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.3 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
30. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, he is not liable to pay Ex.P1 cheque amount of Rs.3 lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and he is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any Judgment 27 C.C.16762/2014 special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken his defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.3 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
31. Basically, insertion of the penal provision under Section 138 of the Negotiable Instruments Act, 1881, is to maintain a healthy business transaction between the people based on faith, belief and understanding. That is why; the drawer of a cheque should not be allowed to abuse the accommodation given to him by a creditor. At the same time, the payee or holder of a cheque cannot be permitted to use that, penal provision under law as a weapon for unlawful gain or to harass the debtor. To initiate a penal action under Section 138 of Negotiable Instruments Act, against a drawer of cheque, there should not be any kind of lapse or lacuna on the part Judgment 28 C.C.16762/2014 of the holder of a cheque. Because, the proceeding under Section 138 of Negotiable Instruments Act is not for recovery of money, but to punish a dishonest and incredible debtor, who intentionally tries to escape from his liability. That is why; it is the duty of the complainant in a given case under the Negotiable Instruments Act, 1881, to place a stable and firm case on his behalf before the court. When the case of the complainant itself is shaky, unstable, untrustworthy and doubtful one, then in the option of this court, presumption that is available under law will come to his help. In the case on hand, the accused has taken several contentions before the court and made out grounds to show that, the case of the complainant is highly improbable.
32. From the careful appreciation material evidence on record, it is very much clear that, without there being any money transaction between the complainant and accused, only with an intention causing harm to the accused, the complainant has lodged the instant complaint before this court and no independent evidence adduced to prove the alleged transaction set up by it, that too, in case like 2014. There is no material piece of evidence produced by the complainant before this court to substantiate it. Judgment 29 C.C.16762/2014
33. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
34. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Section 138 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove her contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.3 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of Judgment 30 C.C.16762/2014 appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove its case beyond all reasonable doubt. As discussed above the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
35. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 10th day of May - 2018) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 31 C.C.16762/2014
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : K.R.Lakshmi List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Postal Acknowledgment card Ex.P6 : Reply notice
List of Witnesses examined on behalf of the defence:
DW.1 : Annadani List of Exhibits marked on behalf of defence:
Ex.D1 : Information letter dtd:20.09.2016
Ex.D2 : Postal order
Ex.D3 : Information letter dtd:07.09.2016
Ex.D4 : Certificate dtd:14.06.2007
Exs.D5 & D6 : Pay Slips
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 32 C.C.16762/2014
10.05.2018.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide
separate order.
*****
ORDER
Acting under Section 255(1) of Cr.P.C. the
accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.Judgment 33 C.C.16762/2014
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.