Bangalore District Court
Sri Bharath Kumar vs Smt. Girijamma on 13 October, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 13th day October 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 21673/2015
Complainant: Sri Bharath Kumar
S/o. Late Bojanna,
Aged about 28 years,
R/at No.12, 13th Cross,
5th Main, Near Sharadambha School,
Jawaregowda Nagar, R.R. Nagar,
Bengaluru -560 098.
Accused: Smt. Girijamma
W/o. Manjunath,
Aged about 42 years,
R/at 404, 1st Main Road,
Jagajyothinagar, Jnanabharathi Post,
Bengaluru -560 056.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused not found guilty
Date of order: 13th October 2016
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act.
2. The brief facts of the complaint is as hereunder:
The complainant stated that the Complainant and accused are well acquainted to each other from past few years and out of 2 C.C.No.21673/2015 acquaintance, the accused approached this Complainant on 5.5.2015 for the hand loan of Rs.8,00,000/- for educational expenses and towards payment of fee of her children and other family and legal necessity. The Complainant by considering the request of the accused, on 7.5.2015 had advanced a hand loan of Rs.8,00,000/- to this accused and the same was acknowledged by the accused and she agreed to repay the loan amount within 2 months and issued a post-dated cheque on the very same day bearing No.793754, dtd.9.7.2015 for a sum of Rs.8,00,000/- drawn on Canara Bank, Kengeri Satellite Town, Bengaluru in favour of this Complainant.
3. It is further submitted by the Complainant that after lapse of two months, the Complainant approached the accused and demanded for repayment of the loan amount, wherein the accused instructed him to present the cheque and draw the amount from her bank account on its due date and accordingly, on the assurance of the accused, the Complainant presented the said cheque before his banker Canara Bank, Mahalakshmi Layout, Bengaluru for encashment, but the said cheque returned dishonoured with an endorsement "insufficient funds" on 10.7.2015 and the same was informed to this Accused. As the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 22.7.2015 by RPAD, calling upon the Accused to make payment of the cheque amount 3 C.C.No.21673/2015 within 15 days from the date of receipt of the notice and the said notice was duly served on 23.7.2015. The Accused even inspite of receipt of Legal Notice, has neither chosen to make payment of the cheque amount nor she has replied the notice by denying the transaction. The Accused knowing fully well that she has no sufficient funds in her bank account, with a dishonest intention to cheat the Complainant, had issued a bogus cheque and thereby, she has committed an offence punishable u/Sec. 138 of N.I. Act.
4. After recording sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through her Counsel and she was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried
5. The complainant got himself examined as PW1 and he got produced 5 documents marked as Ex.P1 to Ex.P5 and closed his side of evidence.
6. After closure of the complainant side evidence, the accused statement u/Sec. 313 Cr.P.C. recorded and read over to the accused in her language. Accused denied the entire incriminating evidence in toto and she intended to lead her evidence. The accused 4 C.C.No.21673/2015 got herself examined as DW1 and she got produced 3 documents marked as Ex.D.1 to Ex.D3 and closed her side of evidence.
7. I have heard the arguments on both sides and I have also perused the entire records.
8. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of N.I. Act beyond all reasonable doubts?
2. What order?
9. My findings to the above point are as under:
Point No. 1 In the Negative Point No. 2 As per final order for the following REASONS
10. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the Complainant stepped into the witness box and got examined as PW1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
11. PW1 deposed that the accused is well acquainted to him and out of acquaintance, the accused approached him on 5.5.2015 for the hand loan of Rs.8,00,000/- for her legal necessity and on 7.5.2015 he had advanced a hand loan of Rs.8,00,000/- to this accused and the same was acknowledged by the accused and she agreed to repay the 5 C.C.No.21673/2015 loan amount within 2 months and issued her post-dated cheque on the very same day bearing No.793754, dtd.9.7.2015 for a sum of Rs.8,00,000/- drawn on Canara Bank, Kengeri Satellite Town, Bengaluru in his favour.
12. He further deposed that after lapse of two months, he approached by demanding for repayment of the loan amount, wherein the accused instructed him to present the cheque and draw the amount from her bank account on its due date and accordingly, on the assurance of the accused, he presented the said cheque before his banker for encashment, but the said cheque returned dishonoured with an endorsement "insufficient funds" on 10.7.2015 and the same was informed to this Accused. He deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice on 22.7.2015 by RPAD, calling upon the Accused to make payment of the cheque amount and the said notice was duly served on 23.7.2015. He deposed that the Accused even inspite of receipt of Legal Notice, has neither chosen to make payment of the cheque amount nor she has replied the notice by denying the transaction. He deposed that the Accused knowing fully well that she has no sufficient funds in her bank account, with a dishonest intention to cheat him, had issued her bogus cheque and thereby, she has committed an offence. 6 C.C.No.21673/2015
13. PW1 in order to prove his case, got produced the cheque issued by this Accused marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this accused. He got identified the signature of this accused marked as Ex.P1(a). He got produced the bank endorsement marked as Ex.P2. He got produced copy of the legal notice along with a postal receipt marked Ex.P3 and Ex.P3(a) respectively. He got produced the Postal Acknowledgement Due Card for having served the notice to the accused marked as Ex.P.4. He got produced the copy of the complaint lodged by this accused before Jnanabharathi Police Station against this Complainant marked as Ex.P.5 through confrontation to DW1 during her cross-examination.
14. The accused has denied the entire case of the Complainant and denied the very fact that she had borrowed a hand loan of Rs.8,00,000/- from this Complainant and she in order to repay the said loan amount, had issued her Ex.P.1 cheque and the same was bounced. The Learned Counsel for the Accused subjected PW1 for cross-examination and he extensively cross-examined the PW1 by denying his testimony.
15. Though PW1 in his cross-examination stated that the accused is acquainted to him through his mother as this accused and his mother are friends. He further stated that the accused was 7 C.C.No.21673/2015 frequently visiting his house to meet his mother and therefore, he was acquainted to this accused. He further stated his mother is working at NCC Department as a Clerk and now she is working at Mysore Road Satellite Bus Stand. However, he has categorically denied the suggestion that his mother is also doing chit transaction business. PW1 in his cross-examination stated that he is not aware of the educational qualification of the children of this accused and even he is not aware how many children are there to this accused. PW1 stated that he without any enquiry and even without ascertaining the actual reason for the loan, had advanced a sum of Rs.8,00,000/- to this accused by way of cash and the entire amount of Rs.8,00,000/- was advanced by him by way of Rs.1,000/- currency notes.
16. PW1 stated that he has arranged a sum of Rs.6,00,000/- after his mother sold one of her site property for a sum of Rs.6,00,000/- and he arranged remaining Rs.2,00,000/- from his savings and accordingly, he advanced a sum of Rs.8,00,000/- to this accused on her request. He admitted the suggestion that neither in his complaint averments nor in his affidavit evidence, he has disclosed the how he arranged a huge sum of Rs.8,00,000/- to advance the same in favour of this accused. Moreover, PW1 has stated that he is not an Income Tax Assessee and even he has not paid TDS to the Sale Consideration Amount of Rs.6,00,000/-. Though he denied the suggestion that he has no 8 C.C.No.21673/2015 financial capacity to advance the huge loan amount of Rs.8,00,000/- and even he was unable to arrange Rs.8,00,000/- fund to advance the same in favour of this accused.
17. The accused has taken up the specific defence that the mother of this Complainant was doing chit transaction business in which, the accused was also one of the members and she has taken chit from his mother and towards security of the chit transaction, she had given her duly signed Ex.P1 blank cheque and even after completion of the chit transaction, the mother of this Complainant failed to return her cheque and she requested to take one more chit from her and accordingly, she continued the chit business with the mother of this Complainant and subsequently, the Complainant colluding with his mother, misused her duly signed blank cheque and created the same for his convenience as Ex.P1 for Rs.8,00,000/- and filed this false complaint. PW1 in his cross-examination has categorically denied the entire suggestions put to him and denied that he himself for his convenience, written all the contents of the cheque and presented the same before his banker for encashment even though the accused has not issued her Ex.P1 cheque towards repayment of the loan amount.
18. Admittedly, the Accused not only denied the loan transaction with this Complainant but she has also denied the very 9 C.C.No.21673/2015 fact that this Complainant had the financial capacity to advance the huge loan amount of Rs.8,00,000/- to her.
19. It is her specific defence of the accused that the Complainant had no financial capacity to advance the huge loan amount of Rs.8,00,000/- and as such he has not at all advanced any kind of loan in her favour. Though the said suggestion was put to PW1 during his cross-examination by suggesting that he has no financial capacity to advance the huge loan amount of Rs.8,00,000/- to this Accused. Even though the said suggestion was categorically denied by PW1 in his cross-examination on the contrary, PW1 in order to prove this fact and to prove that he had the financial capacity to advance the huge loan amount of Rs.8,00,000/- and he had with him a sum of Rs.8,00,000/- as on date of loan transaction, has not chosen to produce any piece of evidence before this court.
20. The PW1 except adducing the oral evidence that he had sold the site property of his mother for a sum of Rs.6,00,000/- and after adding Rs.2,00,000/- saved by him from his savings, advanced the loan amount of Rs.8,00,000/- to this accused, has not chosen to produce either the copy of the Sale Deed before this court or his bank account extract to prove his financial capacity to advance the huge loan amount of Rs.8,00,000/- to this accused.
10 C.C.No.21673/2015
21. Admittedly, the PW1 except adducing the oral evidence that he had with him a sum of Rs.8,00,000/- to advance the same in favour of this Accused and he had advanced the said amount to this Accused on her request, has not chosen to prove the same that as on date of loan transaction, he had with him a sum of Rs.8,00,000/- to advance the same in favour of this Accused. This clearly proves that PW1 has no financial capacity to advance the huge loan amount of Rs.8,00,000/- to this accused.
22. Though he denied the suggestion that he himself has written all the contents of Ex.P1 cheque for his convenience by misusing the duly signed blank cheque of this accused issued by her in favour of his mother for the security of the chit transaction business and filed this false complaint with an intention to make a wrongful gain for himself and to cause monetary loss to this accused.
23. PW1 in his cross-examination denied the suggestion that this accused was doing chit transaction business with his mother and towards the security of the chit transaction business, she had given her duly signed blank cheque and even after conclusion of the chit, his mother failed to return her duly signed blank cheque and subsequently he colluding with his mother, misused her duly signed blank cheque, created the same as Ex.P.1 for Rs.8,00,000/- and filed 11 C.C.No.21673/2015 this false complaint, even though this Accused is not liable to pay the cheque amount.
24. Admittedly, the PW1 except adducing the oral evidence that he had advanced the huge loan amount of Rs.8,00,000/- to this Accused on her request, which has been categorically denied by this Accused, nothing has been placed before this court to prove the loan transaction and also to prove that as on date of Ex.P.1 cheque, there existing a legally recoverable debt or other liability on this Accused and this Accused by admitting her liability, had issued her Ex.P.1 cheque and the same was bounced.
25. The evidence of PW1 is surrounded with a lot of suspicion, which creates a doubt in the mind of court about the loan transaction and also about the issuance of Ex.P.1 cheque by this Accused towards repayment of the loan amount of Rs.8,00,000/-. The PW1 except adducing the oral evidence that he had with him a sum of Rs.8,00,000/- to advance the same in favour of this Accused and on the request of this Accused, he advanced the loan amount of Rs.8,00,000/- to this Accused, has not chosen to prove the same by adducing documentary evidence before this court.
26. Admittedly, the burden is heavily on this PW1 to prove that as on date of Ex.P.1 cheque, there existing a legally recoverable 12 C.C.No.21673/2015 debt or other liability on this Accused and this Accused by admitting her liability and also by agreeing to repay the loan amount of Rs.8,00,000/-, had issued her Ex.P.1 cheque and the same was bounced.
27. As I have discussed supra, the Complainant in order to prove this fact except adducing the oral evidence, which has been categorically denied by this Accused, nothing has been placed before this court to believe his testimony and to believe his case.
28. In such situation, without any proper evidence before this court, it is not possible to believe the testimony of PW1 that he advanced the huge loan amount of Rs.8,00,000/- to this Accused and as on date of Ex.P.1 cheque, there existing a legally recoverable debt or other liability on this Accused and this Accused by admitting her liability and in order to discharge her liability, had issued Ex.P.1 cheque and the same was bounced.
29. Admittedly, the PW1 has not chosen to produce any piece of document before this court to prove the loan transaction and also to prove that he advanced the huge loan amount of Rs.8,00,000/- to this Accused. This fact creates a serious doubt in the mind of court about the loan transaction and also about the issuance of cheque towards repayment of the loan amount. The Complainant has not cleared all 13 C.C.No.21673/2015 the doubts aroused in the mind of court by adducing cogent and convincing evidence before this court.
30. Per contra, the Accused in order to prove her defence and also to rebut the case of the Complainant and to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act, got herself examined as DW1. She has categorically deposed before this court that she is residing in a house bearing No.9, 9th Cross, Nagadevanahalli, Annapoorneshwari Layout, Bengaluru since from 7-8 years and it is her correct address and all the letters and other corresponding notices were served on her to this address. She deposed that this Complainant is a stranger to her and moreover, there was no any loan transaction in between her with this Complainant and even she has not issued Ex.P1 cheque in favour of this Complainant.
31. She deposed that one Smt. Savithramma was running the chit business, for which she was also one of the members and for the security of the chit transaction amount, she had given her duly signed blank cheque in the year 2010. She deposed that she had taken a chit for Rs.55,000/- on monthly subscription amount of Rs.2,50,000/- and after completion of the chit, the said Smt. Savithramma requested her to take one more new chit and she by considering the request of the said Smt. Savithramma, continued chit business with her and left her 14 C.C.No.21673/2015 duly signed blank cheque with Smt. Savithramma as she continued chit business with her. She deposed that she has taken two chits totally amounting to Rs.1,00,000/- and apart from the chit business, the said Smt. Savithramma was also doing share business for which, she has also invested amount of Rs.1,000/- per month towards the shares.
32. She deposed that after completion of the chits, Smt. Savithramma has neither retuned the chit amount nor she has paid the share amount and when she demanded her amount, the Smt. Savithramma made galata with her. She got produced the Bank Extract of her Canara bank marked as Ex.D.1. She in order to prove her address, got produced the Aadhaar Card Along with Voters' Identity Card issued by Election Commission of India marked as Ex.D2 and Ex.D3 respectively. She has categorically deposed that she has not issued Ex.P.1 cheque in favour of this Complainant towards repayment of the loan amount. DW1 deposed that the Complainant by misusing her duly signed blank cheque issued in favour of his mother, only with an intention to make unlawful gain for himself and to cause monetary loss to her, filed this false complaint. DW1 prays to dismiss the complaint.
33. The Complainant has denied the testimony of DW1 and his Learned Counsel subjected DW1 for cross-examination. Though DW1 15 C.C.No.21673/2015 in her cross-examination admitted that she has lodged a complaint before Jnanabharathi Police Station as per Ex.P5 and in the said complaint, she has given the very same address disclosed in this complaint. However, DW1 stated that she has given address of her friend in Ex.P5 document as the police have refused to take her correct address. No doubt, the DW1 has not produced any document before this court to prove that the address disclosed in Ex.P5 is that of her friend and she has given the address of her friend in Ex.P5 on the direction of the police personnel. On the contrary, the Ex.P5 document clearly proves that the DW1 by furnishing the address as "No.404, 1st Main Road, Jagajyothinagar, Jnanabharathi Post, Bengaluru" stated that the said address is belonged to her and she is residing in the said address. No doubt, in Ex.P5, the DW1 lodged the First Information against the mother of this Complainant by alleging that she is the member to the chit transaction and even inspite of completion of chit, the mother of this Complainant Smt. Savithramma instead of paying the chit amount threatening her to do away with her life if, she demands for chit amount.
34. Admittedly, the Ex.P5 does not prove that the address disclosed in the said document is relating to the friend of DW1 and she has given her friend's address. The Ex.P5 document clearly proves that the DW1 only with an intention to depose false before this court that 16 C.C.No.21673/2015 she is not residing in the address disclosed in Ex.P3 and once she admits the receipt of Ex.P3 notice she will be held liable for the chit amount, has deposed false before this court that Ex.P3 notice is not served on her and even the signature found on Ex.P4 document is not related to her husband Sri Manjunath and no notice is served on her by this Complainant earlier to filing of this complaint.
35. On the contrary, the Complainant except putting some suggestions to DW1 regarding availment of loan by DW1 from this Complainant amounting to Rs.8,00,000/- which has been categorically denied by DW1, nothing has been elicited from the mouth of DW1 to prove his case and also to prove the loan transaction.
36. The Complainant has not the denied the Ex.D1 document nor he has denied the contents of Ex.D1. The Complainant except putting suggestions to DW1 that the address disclosed in Ex.D1 to Ex.D3 are all different addresses, has not chosen to deny the contents of Ex.D1 document. Moreover, DW1 has stated that she has produced Ex.D1 document to prove that she has given her Ex.P1 cheque in favour of the mother of this Complainant towards chit transaction. The contents of Ex.D1 document clearly proves that the previous and subsequently cheque numbers related to Ex.P1 cheque are all used by this DW1 in the year 2009-10. The contents of Ex.D1 discloses that the cheque bearing No.793741 to 793753 were used from 28.3.2009 to 17 C.C.No.21673/2015 18.2.2010 and even the subsequently cheque bearing No. 793755 to 793757 were used by this DW1 from 24.5.2010 to 24.1.2011.
37. These facts were not denied by the Complainant. No suggestion was put to DW1 by suggesting that she only with an intention to cheat the Complainant has issued Ex.P1 cheque on 7.5.2015 of late by retaining the cheque bearing No.793754. In such situation, the defence taken by the DW1 that she has issued her Ex.P1 duly signed blank cheque in favour of Smt. Savithramma in the year 2010 towards the security of the chit amount is so probable and believable that a prudent man can believe her defence and can believe her testimony.
38. The contents of Ex.D1 document is fully corroborated with the testimony of DW1 and clearly proves that the accused during the year 2010 had issued her Ex.P1 duly signed blank cheque in favour of Smt. Savithramma towards the chit transaction. The Ex.D1 document falsify the case of the Complainant and also falsify the testimony of PW1.
39. As I have discussed supra, the initial burden is on this Complainant to prove his case and to prove his financial capacity to advance the huge loan amount of Rs.8,00,000/- to this Accused and also to prove the existence of legally recoverable debt or other liability 18 C.C.No.21673/2015 on this Accused as on date of Ex.P.1 cheque. Here in this case, the Complainant has utterly failed to discharge his initial burden by adducing cogent before this court. When the Complainant has utterly failed to prove his case, then the burden will not shift on this Accused to disprove the case of the Complainant and to discard his testimony.
40. As I have discussed supra, the Complainant during the cross-examination of DW1, except putting some suggestions to her that she had issued Ex.P.1 cheque after receipt of the loan amount of Rs.8,00,000/- towards repayment of the loan amount, which has been categorically denied by DW1, nothing has been elicited from her mouth to disbelieve her testimony or to discard her evidence.
41. As I have discussed supra, the initial burden is always on this Complainant to prove his case on the strength of his own evidence. As I have discussed supra, the Complainant has utterly failed to prove his case by adducing cogent and convincing evidence before this court. The Complainant has utterly failed to prove that he had advanced the huge loan amount of Rs.8,00,000/- to this Accused and after receipt of the loan amount, the Accused in order to pay the loan amount, had issued her Ex.P.1 cheque, to the satisfaction of the court.
19 C.C.No.21673/2015
42. Likewise, the PW1 has utterly failed to convince this court that he had the financial capacity to advance the huge loan amount of Rs.8,00,000/- to this Accused. It is also pertinent to note that the Complainant claimed that he advanced the huge loan amount of Rs.8,00,000/- to this Accused, even without insisting this Accused to pay interest on the loan amount and even he has not demanded any interest on the loan amount. Even this fact creates a very serious doubt in the mind of court about the case of the Complainant and also about the conduct of PW1. The Complainant has not chosen to clear all the doubts aroused in the mind of court by adducing cogent and convincing evidence before this court.
43. It is well settled principle of law that presumption u/Sec.139 of N.I. Act is available to this Complainant, only with respect to issuance of cheque for repayment of debt or other liability by this Accused. However, the burden is on this Complainant to prove the existence of debt or other liability as on date of Ex.P.1 cheque and also to prove that he had the financial capacity to advance the huge loan amount of Rs.8,00,000/- to this Accused. Here in this case, the Complainant has utterly failed to prove his case to the satisfaction of the court. The Complainant has failed to prove that the Accused is liable to pay the cheque amount disclosed in Ex.P.1. In such situation, the very complaint filed by the this Complainant against this Accused 20 C.C.No.21673/2015 for the offence punishable u/Sec. 138 of N.I. Act, is not maintainable and it holds no merit.
44. The learned Counsel for the Complainant has vehemently argued before this court that the Accused has not chosen to prove her defence to the satisfaction of the court that she had given her duly signed blank cheque in favour of the mother of the Complainant towards the security of the chit transaction and after the completion of the chit, the mother of this Complainant instead of retuning the cheque, misused her cheque colluding with her son and created the same as Ex.P.1 for Rs.8,00,000/-. He has argued that the entire burden is on this Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act and this Accused has utterly failed to rebut the presumption available to this Complainant by adducing cogent evidence before this court.
45. He further argued that the Accused except adducing the oral evidence that her cheque was misused by the Complainant, has not chosen to prove the same. He has argued that the Accused neither lodged a complaint against this Complainant nor she has initiated any legal action against this Complainant for misusing her cheque and creating the same for Rs.800,000/-. He has stated that the Accused only with an intention to ran away from her liability to pay the cheque 21 C.C.No.21673/2015 amount, has taken up false defence before this court and therefore, the defence of the Accused has to be discarded. He further argued that the Complainant has filed this complaint after complying all the provisions of Section 138 of N.I. Act and well within the statutory period of limitation against this Accused.
46. He has stated that the Ex.P.1 cheque is belong to this Accused and even the Accused has admitted her signature on the cheque and therefore, by drawing presumption in favour of this Complainant u/Sec.139 of N.I. Act and also by holding that the Accused has not successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act, the Accused has to be convicted for the offence punishable u/Sec. 138 of N.I. Act and she has to be sentenced for imprisonment and also sentenced to pay fine. The arguments canvassed by the learned Counsel for the Complainant, is not convinced this court and it holds no merit.
47. As I have discussed supra, the Complainant in order to prove his financial capacity to advance the huge loan amount of Rs.8,00,000/- and also to prove the loan transaction with this accused, has not chosen to produce any piece of evidence before this court. As I have discussed supra, the PW1 except adducing the oral evidence that he after sold the site property of his mother for a sum of 22 C.C.No.21673/2015 Rs.6,00,000/- and after adding Rs.2,00,000/- saved by him, had advanced a sum of Rs.8,00,000/- to this accused, has not chosen to produce the alleged Sale Deed copy before this court nor he has chosen to examine any of the witnesses related to the said Sale Deed to prove his financial capacity to advance the huge loan amount of Rs.8,00,000/-. In such situation, the arguments canvassed by the learned Counsel for the Complainant cannot be acceptable and it holds no merit.
48. Likewise, judgment replied by the learned Counsel for the Complainant in support of his arguments reported in (1999) 7 Supreme Court Cases 510 between K.Bhaskaran Vs. Sankaran Vaidhyan Balan & Another wherein it is held that;
"(b) Notice to drawer returned as "unclaimed" - Context of S.138, held, invites a liberal interpretation favouring the person who has the statutory obligation to give notice, because he is presumed to be the loser in the transaction and the provision itself has been made in his interest - Thrust in the clause is on the need to "make a demand" - Strict interpretation would give a handle to a trickster cheque drawer - Further held, the principle incorporated in Sec.27 of the General Clauses Act, 1897 can be imported into a case where sender has dispatched the notice by post with correct address written thereon - Such notice can be deemed to have been served on sendee unless he proves that it was never actually served and that he was not responsible for the non-service - Thus when a notice is returned as unclaimed by the sendee - drawer such date would be the date to start reckoning the period of 15 days contemplated in clause (c) - Held, High Court in appeal rightly found the appellant guilty of the offence under S.138 of the Negotiable Instruments Act - Words and phrases "giving of notice", "receiving of the notice" - General Clauses Act, 1897, S.27 - Evidence Act, 1872, S.114 III (e) -
interpretation of Statutes - Basic rules - liberal interpretation - Notice to drawer of bounced cheque - Basic rules - Mischief rules, applied"
23 C.C.No.21673/2015
ILR 2001 KAR 4127 between S.R. Muralidhar Vs. Ashok G.Y. wherein it is held that;
"Negotiable Instrument Act, 1881 (Cental Act No.26 of 1881) - Section 138 - In a cheque Bounce case Complainant has challenged the order of Acquittal accepting the defence of the drawer of the cheque that the Complainant who is his business associate and was allowed to deal with the accounts and bank transactions has mis-used a cheque signed by him and the same is misutilized to fasten the false liability. High Court set aside the acquittal on the ground that there is no positive version of defence and the accused has not examined himself and from pleas taken up by picking out of context the statements made in the cross-examination and from the statements made in reply of the Accused, a hazy defence theory is sought to be built up "
2002 SCC (Cri) 14) between K.N. Beena Vs. Muniyappan and another wherein it is held that;
"In view of the provisions contained in Ss.118 and 139, the court has to presume that the cheque had been issued for discharging a debt or liability - However, the said presumption could be rebutted by the accused by proving the contrary - Mere denial or rebuttal by accused in the reply to the Legal Notice sent by the Complainant nor enough - Accused had to prove by cogent evidence that there was no debt or liability -
2004 (3) KCCR Page 1816 between L. Mohan Vs. V.Mohan Naidu wherein it is held that;
"When once issue of cheque and signature of it is admitted, the court has to presume that the cheque has been issued for discharging the debt or other liability. The burden of proof shifts on the accused to prove that there was no liability or debt or that the cheque was issued a different person."
2008 AIR SCW 7702 between P. Venugopal Vs. Madan P. Sarathi wherein it is held that;
"(A) Negotaible Instrumetns Act (26 of 1881), Ss.118, 139 -
Presumption that cheque was issued in discharge of debt - Scope
- Does not absolve Complainant of burden to prove existence of debt or liability"
24 C.C.No.21673/2015
(B) Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of cheque - Cheque issued by drawer in discahge of liability -
Complainant alleging that cheque was issued in discharge of hand loan given by him - Plea raised by accused that there was no debtor creditor relationship between parties - Concurrent finding that Complainant has been able to prove his case of grant of a loan - Not liable to be interfered with in appeal. (C) Negotiable Instruments Act (26 of 1881), S.138, Proviso (c) - Dishonour of cheque - Service of notice on drawer - Is question of fact - Concurrent finding that notice was served on drawer - Not liable to be interfered with an appeal.
2007 CRl.L.J. 3214 (SC) (B) between C.C. Alavi Haji Vs. Palapetty Muhammed & Another wherein it is held that;
"Negotiable Instruments Act (26 of 1881), S.138, Proviso (b)(c) - dishonour of cheque - complaint - Averments that notice sent under Sec..138(b) was evaded by the accused or that the accused had played role in return of notice unserved - Not necessary in view of presumption u/Sec.27 of G,.C. Act 2010 Crl.L.J.2871 (SC) between Rangappa Vs. Mohan wherein it is held that;
(A) Negotiable Instruments Act,(26 of 1881), -SECTION 138-
Dishonour of cheque-On account of 'stop payment' instruction sent by accused to Bank in respect of post dated cheque-S. 138 is attracted-Insufficiency of funds in account, irrespective. (B) Negotiable Instruments Act(26 of 1881), S.138-Existence of legally recoverable debt or liability-Is matter of Presumption U/S
139. The law laid down in these judgments is not applicable to the facts of the present case on hand and it will not helpful to the case of the Complainant.
49. Per contra, the Learned Counsel for the Accused has vehemently argued that this Accused had the chit transaction with the mother of this Complainant Smt. Savithramma and during the year 25 C.C.No.21673/2015 2010 the accused towards the security of the chit transaction, had given her Ex.P1 cheque in favour of said Smt. Savithramma and this accused by adducing oral and documentary evidence before this court, proved that she had given her Ex.P1 duly signed blank cheque in favour of Smt. Savithramma during the year 2010 and this Complainant has not chosen to disprove the defence taken by the accused. He has argued that the mother of this Complainant by colluding with this Complainant, misused the duly signed blank cheque of this accused issued towards security of the chit amount and filed this false complaint. He further argued that the accused by adducing oral and documentary evidence before this court, has proved her defence. His arguments is fully convinced this court.
50. After this accused adduced her evidence before this court, the burden shift on this Complainant to prove that apart from the chit transaction, the Complainant had also advanced the loan amount amounting to Rs.8,00,000/- to this accused and this accused in order to repay the said loan amount, had issued her Ex.P1 cheque in his favour and the same was bounced. Admittedly, the Ex.P1 cheque is related to the year 2010 and moreover, earlier serial number of the Ex.P1 cheque and subsequent serial numbers of cheque are all used by this accused during the year 2009-10 and this fact was proved by this accused by producing Ex.D1 document.
26 C.C.No.21673/2015
51. The Complainant has not led any rebuttal evidence after this accused has led her evidence before this court and by considering all these facts, the accused has to be acquitted. The arguments canvassed by the learned Counsel for the accused is fully convinced this court. The accused by adducing oral and documentary evidence before this court, has successfully rebutted the presumption available to this Complainant u/Sec.138 of N.I. Act.
52. He further argued that the Complainant except adducing the oral evidence that he had the financial capacity to advance the huge loan amount of Rs.8,00,000/- to this Accused, has not chosen to prove the same by adducing documentary evidence before this court. He has stated that the PW1 has failed to prove the loan transaction and also failed to prove that as on date of Ex.P.1 cheque, there existing a legally recoverable debt or other liability on this Accused and this Accused by admitting her liability, had issued her Ex.P.1 cheque. The arguments canvassed by the Learned Counsel for the Accused, is fully convinced this court.
53. Likewise, the arguments canvassed by the Learned Counsel for the Accused that there is no burden on this Accused to prove her defence beyond all reasonable doubts and she can very well discharge her burden by preponderance of probabilities and even by cross- 27 C.C.No.21673/2015 examining PW1. He has argued that the Accused has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act, by adducing her evidence before this court and even by cross- examining PW1, is also convinced this court.
54. Admittedly, there is no burden on this Accused to prove her defence beyond all reasonable doubts. The Accused can very well discharge her burden by preponderance of probabilities and this Accused has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act. The Complainant has utterly failed to prove the case and failed to prove that this Accused has committed an offence punishable u/Sec.138 of N.I. Act.
55. The oral and documentary evidence adduced before this court by this Complainant is not sufficient and convincing to bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. The entire burden is on this Complainant to bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. Unless the Complainant is discharge his burden, no burden will shift on the Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. The Complainant has utterly failed to prove that this Accused that this Accused has committed an offence punishable u/Sec. 138 of N.I. Act and therefore, she is liable for punishment. In such situation, the benefit of doubt 28 C.C.No.21673/2015 goes in favour of this Accused. Hence, by taking into consideration the facts and circumstances and evidence available on record, I answer Point No.1 in the Negative.
56. Point No.2: In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255(1) of Cr.P.C., the accused is hereby acquitted for the offence punishable u/Sec.138 of N.I. Act.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by him is verified and then pronounced by me in the Open Court on this the 13th day of October, 2016) (ISHRATH JAHAN ARA) XIX ADDL.CMM., Bengaluru.
ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. Bharath Kumar
Witnesses examined on behalf of the Accused:
D.W.1 Mrs. Girijamma
Documents marked on behalf of the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused
Ex.P.2 Bank endorsement
Ex.P.3 Copy of the legal notice
Ex.P.3(a) RPAD receipt
Ex.P.4 Postal Acknowledgement Due Card
Ex.P.5 Copy of the complaint lodged by the accused
Documents marked on behalf of the Accused:
Ex.D1 Bank Extract
Ex.D2 Aadhaar Card
Ex.D3 Voters' Identity Card
XIX ACMM, B'lore.
29 C.C.No.21673/2015