Bangalore District Court
Sri. Pradeep Kumar. B vs Smt. Hemalatha on 26 February, 2020
1 C.C.No.8995/2015 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 26th day of February, 2020
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.8995/2015
Complainant : Sri. Pradeep Kumar. B,
S/o. Late B. Somanath,
Aged about 61 years,
Residing at Mookambika,
R.T. Nagar, II Main,
KEB Road, Tumkur Town,
Tumkur.
(Rep. by Sri L.T. Gopal and
H.C.Rajesh., Advs.,)
- Vs -
Accused : Smt. Hemalatha,
W/o.S.S.Murthy,
Aged about 52 years,
Proprietrix of S.S. Murthy Co.
Residing at No.430/A,
10th Cross, 21st Main Road,
J.P.Nagar 2nd phase,
Bengaluru -560 078.
(Rep. by Sri. K.R.Keshava Murthy.,
Adv.,)
2 C.C.No.8995/2015 J
Case instituted : 21.2.2015
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 26.2.2020
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, his daughter Sushrutha P.S was married to Harshavardhan.S @ Vijayasrinivas, S/o. S.S.Murthy on 27.2.2011, at the time of marriage he being the father of Sushrutha had given gold ornaments and silver articles of Vijayasrinivas's family as demanded by both son-in-law and his mother i.e the Accused herein, besides he has also given cash more than Rs.30 Lakhs as dowry since the Accused compelled and insisted his daughter after marriage , however to safeguard interest of his daughter, he had no option except to fulfill their illegal demand. As things stood 3 C.C.No.8995/2015 J thus, on 3.11.2013 the Accused i.e. mother of his son-in-law approached and requested him for financial assistance of Rs.40 Lakhs as hand loan stating that, the amount was required for purpose of improvement of business and promising to repay the said amount within three months initially he and his wife refused to lend the money, however upon considering relationship as well interest of his daughter's carrier and urgency pleaded by the Accused he has paid a sum of Rs.30 Lakhs to the Accused on 12.11.2013 by cash, after receiving the said amount the Accused and her son started to give more and more physical and mental torture and harassment to his daughter and ultimately they have succeeded their attempt to thrown out his daughter from the matrimonial home on 10.12.2013. It is further contended that, he and his family members approached and requested the Accused to take care of daughter but all the efforts made by them went in vain and also requested to repay the hand loan amount of Rs.30 Lakhs. Subsequently his daughter lodge a complaint against her husband and Accused and based on the complaint the jurisdictional police have registered a case a 4 C.C.No.8995/2015 J same is pending for investigation in the meantime the Accused and her son approached him and his daughter Smt.Sushrutha P.S. and handed over to three cheques i.e., 1) cheque bearing No. 431603 dated: 12.12.2014 for Rs.10 Lakhs 2) cheque bearing No. 431602 dated: 19.12.2014 for Rs.10 Lakhs 3) cheque bearing No. 431601 dated: 27.12.2014 for Rs.10 Lakhs , all are drawn on Vijaya Bank, South- End Circle Road Branch, Bengaluru duly signed by Accused as a Proprietrix of the S.S.Murthy company in his favour towards discharge of the debt, besides that, the Accused has also issued a letter addressed to his daughter by mentioning the transaction as well as cheques and also assuring him that on presentation of the cheque the said cheques would be honoured, accordingly he has deposited the said cheques through his banker i.e., State Bank of Mysore, Tumkur for realization but the said cheques came to be dishonoured on 17.12.2014 , 20.12.2014 and 29.12.2014 as unpaid with an endorsement "Funds Insufficient" , thereafter he got issued legal notice dated: 9.1.2015 through RPAD to the Accused notifying the dishonour of cheques and demanding for repayment of the said cheques amount within 15 5 C.C.No.8995/2015 J days from the date of receipt of notice and the said notice was served on the Accused on 12.1.2015 but the Accused failed to pay the amount within 15 days but has issued an untenable reply to him. Hence the complainant has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the averments of the complaint and produced original documents.
4. Prima-facie case has been made out against the accused and summons was issued against the accused in turn she has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to her, to which she pleaded not guilty and claims to be tried.
5. The complainant himself got examined as PW.1 by filing his affidavit evidence in lieu of oral evidence wherein he has reiterated the entire 6 C.C.No.8995/2015 J averments of the complaint. In support of his oral evidence, he has relied upon the documentary evidence as per Ex.P.1 to P.11 i.e, three Original Cheques dated:-27.12.2014, 19.12.2014 and 12.12.2014 as per Ex. P.1 to P.3 respectively, the signatures on the said cheques identified by P.W.1 as those of the accused as per Ex.P.1(a) to P.3(a) respectively, three Bank Memos as per Ex.P.4 to P.6 respectively, the office copy of the Legal Notice as per Ex.P.7, Postal Receipt and postal acknowledgement as per Ex.P.8 and P.9, reply notice as per Ex.P.10, letter issued by the Accused in the name of complainant's daughter as per Ex.P.11 and signature of the Accused as per Ex.P.11(a). The complainant has also examined his wife by name Smt. H.T.Shobha as PW.2 and closed his side.
6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. She has denied the incriminating evidence appearing against her and has chosen to lead her rebuttal evidence.
7. The Accused herself examined as DW.1 and 7 C.C.No.8995/2015 J she has filed her affidavit in lieu of her examinations-in-chief and she has produced Vat Registration certificate as per Ex.D.1, Rent Deeds dated: 19.7.2011, and 15.9.2011 as per Ex.D.2 and D.3, Vat registration certificate of daughter-in-law of Accused as per Ex.D.4, true copy of the Statement dated: 25.6.2014 as per Ex.D.5, true copy of the letter written by the daughter-in-law of the Accused to the police inspector, J.P.Nagar PS as per Ex.D.6, certified copy of the Charge sheet filed in crime No. 408/014 of J.P.Nagar Ps for the offence punishable U/s.498a, 506 R/w Sec. 34 of IPC r/w sec. 3 and 4 of D.P.Act as per Ex.D.7, certified copy of the statement given by daughter-in-law of the Accused before the PI , JP.Nagar PS dated: 10.6.2015 as per Ex.D.8 and closed her side.
8. Heard the arguments of both learned counsels for the complainant and the Accused and perused the written argument submitted by the learned counsel for the Accused and also the learned counsel for the Accused has relied upon the decisions i.e.1) 2008 (4) SCC 54 in case of Krishna Janardhan Bhat Vs. Dattatraya G. 8 C.C.No.8995/2015 J Hegde; 2) 2014(2) SCC 236 in case of John K. Abraham Vs. Simon C. Abraham and another; 3) 2015(1) SCC 99 in case of K.Subramani Vs. K.Damodara Naidu; 4) 2010 (11) SCC 441 in case of Rangappa Vs. Sri. Mohan; 5) AIR 2009 SC 1518 in case of M/s. Kumar Exports Vs. M/s. Sharma Carpets; 6) ILR 2008 KAL 4629 in case of Shiva Murthy Vs. Amruthraj.
9. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued three cheques i.e.,
1) cheque bearing No. 431601 dated: 27.12.2014 for Rs.10 Lakhs;
2) cheque bearing No. 431602 dated: 19.12.2014 for Rs.10 Lakhs;
3) cheque bearing No. 431603 dated: 12.12.2014 for Rs.10 Lakhs, all are drawn on Vijaya Bank, South-End Circle Road, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented a cheques for encashment through her banker but the said cheques have been 9 C.C.No.8995/2015 J dishonoured for the reasons " Funds Insufficient" on 17.12.2014, 20.12.2014 and 29.12.2014 and the complainant issued legal notice to the accused on 9.1.2015 and inspite of it the accused has not paid the cheques amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
10. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
11. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act 10 C.C.No.8995/2015 J is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the 11 C.C.No.8995/2015 J date on which cause of action arise to file complaint.
12. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
13. In the present case the complainant has examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire contents of the 12 C.C.No.8995/2015 J complaint. The complainant/ PW.1 testified that, his daguther Smt.Sushrutha P.S. was married to Harshavardhan.S. @ Vijayasrinivas.S, S/o. S.S. Murthy on 27.2.2011 and at the time of marriage he had given gold ornaments and silver articles to the family of his son-in-law as demanded by his son-in- law and Accused and also given cash more than Rs.30 Lakhs as dowry. The PW.1 further testified that, on 3.11.2013 the Accused who is the mother of his son-in-law approached and requested him for financial assistance of Rs.40 Lakhs as hand loan for the purpose of improvement of business and promising to repay the same within 3 months considering relationship and interest of his daughter's carrier has paid a sum of Rs.30 Lakhs to the Accused on 12.11.2013 by cash but after receiving the said amount the Accused and his son- in-law started more and more both physical and mental torture and harassment to his daughter, finally they thrown out his daughter form their home on 10.12.2013. The complainant/PW.1 further testified that, he and his family members approached the Accused and requested to take care of his daughter but all the efforts made by them 13 C.C.No.8995/2015 J went in vain and also requested the Accused to repay the loan amount of Rs.30 Lakhs taken from him, subsequently his daughter lodge a complaint against her husband and also Accused and based on the said complaint the jurisdictional police have registered the case against them and investigation is pending, in the meantime the Accused and her son approached him and his daughter and handed over the cheques in question i.e. Ex.P.1 to P.3 for sum of Rs.30 Lakhs in his favour duly signed by the Accused as Proprietrix of S.S.Murthy company towards discharge of her legal debt or obligation, besides the Accused has also issued a letter addressed to his daughter by mentioning the transactions as well as cheques and amount details having received by the Accused from him. The complainant/PW.1 further testified that, he has presented the said cheques in question through his banker but the said cheques were came to be dishonoured on 17.12.2014, 20.12.2014 and 29.12.2014, thereafter he got legal notice dated:
9.1.2015 through RPAD to the Accused notifying the dishonour of cheques and demanding for repayment of the said cheques within 15 days from the date of 14 C.C.No.8995/2015 J receipt and the said notice was served on the Accused but the Accused has failed to pay the amount and has given untenable reply.
14. In support of oral evidence the complainant has produced documents as per Ex.P.1 to P.11 i.e, three Original Cheques dated:-
27.12.2014, 19.12.2014 and 12.12.2014 as per Ex.
P.1 to P.3 respectively, the signatures on the said cheques identified by P.W.1 as those of the accused as per Ex.P.1(a) to P.3(a) respectively , three Bank Memos as per Ex.P.4 to P.6 respectively, the office copy of the Legal Notice as per Ex.P.7, Postal Receipt and postal acknowledgement as per Ex.P.8 and P.9, reply notice as per Ex.P.10, letter issued by the Accused in the name of complainant's daughter as per Ex.P.11 and signature of the Accused as per Ex.P.11(a).
15. The complainant has also examined his wife as PW.2 who in her evidence stated that, her daughter Sushrutha was one Sri.Harshavardhana S. @ Vijayasrinivas on 27.2.2011, after marriage her son-in-law and his mother i.e the Accused 15 C.C.No.8995/2015 J requested her husband to provide financial assistance of Rs.40 Lakhs as a hand loan considering their requests her husband has paid Rs.30 Lakhs to the Accused on 12.11.2013 by cash and she was present on the date of payment made by her husband in the house of the Accused. PW.2 further stated that, out of Rs.30 Lakhs her husband had arranged Rs.15 Lakhs and remaining Rs.15 Lakhs arranged by her and her nephew, thus the Accused had received sum of Rs.30 Lakhs from her husband as hand loan and same was not returned so far.
16. The Accused in her defence has denied the liability in question and issuance of cheques in question towards discharge of liability in question as claimed by the complainant in the complaint. It is also defence of the Accused that, her son by name Vijay was married the daughter of the complainant i.e. Sushrutha and at the time of their marriage and before marriage and after marriage she has not demanded and received any dowry from the complainant and earlier to marriage her son was residing separately and his marriage was solemnized 16 C.C.No.8995/2015 J on 27.2.2011 since then her son and daughter of the complainant were residing in No.37, Samruddi Nynappanahalli village, Begur Main Road, Bengaluru till the death of her son and her son was running cement and iron business at No.7, Ground Floor, V.G.R Tower, BDA road, Nynappanahalli village, Avanisingeri Nagar, Bengaluru, subsequently after marriage has shifted his business to Sy.No.78/2B, Opp. Sai Mandira 80 ft. road, BTM 6th stage, Bannerghatta Road, IIM Post, Bengaluru and the said business was running in the name of Sushrutha i.e. daughter of the complainant at No.44/1, Singh Layout, Arakere, Bannerghatta Road, Bengaluru. It is also the defence of the Accused that, on 25.6.2014 the JP Nagar police called her and she went to the police station at 8.30 a.m and detained her till 12.00 noon without informing anything, at that time the complainant and his wife, his daughter had came to the police station and at that stage the police told her that she and her son has received an amount of Rs.30 Lakhs from the complainant, hence she has to pay the same and the complainant influenced the police higher officers and tortured her till night to get the 17 C.C.No.8995/2015 J money from her, finally the police took three cheque leaves from her for Rs.10 Lakhs each/= and also on the same day taken a letter to that extent from her, hence the cheques in question were taken from her by coercion and threatening by the police and now the complainant had produced the said cheques in this complaint though she has not received any money from him. It is also the defence of the Accused that, the daughter of the complainant has given a request letter to the JP Nagar police requesting to keep the investigation pending till encashment of the cheques , hence the main intention of the complainant was to extract money from her not for the dowry harassment and subsequently when the cheques were dishonoured and the payment was stopped by her the complainant has made arrangement to file false charge sheet against her for dowry harassment which is still pending.
17. It is settled law that, once the issuance of the cheque infavour of holder in due course is admitted by the drawer, presumption can be drawn about the existence of legally recoverable debt 18 C.C.No.8995/2015 J U/s.139 of N.I. Act, terms in favour of holder in due course. The Hon'ble Apex Court in Rangappa Vs. Mohan case reported in 2010(11) SCC 441, has held that, "issuance of the cheque would create a presumption with respect to legally enforceable debt in favour of the payee of the cheque", however, the said presumption is rebuttable. In the present case, it has tobe examined as to whether the Accused has rebutted the presumption successfully or not by examining oral and documentary evidence adduced by the both parties.
18. On careful perusal of the averments of the complaint and evidence of the complainant and his wife i.e. PW.2 makes it clear that, the daughter of the complainant and PW.2 by name Sushrutha was married to one Harshavardhan @ Vijayasrinvas i.e. the son of the Accused on 27.2.2011. It is also claim of the complainant that, at the time of marriage of his daughter as per the demand and at the instance of the Accused and her son i.e. his son-in-law, he had given gold ornaments and silver articles and also cash more than Rs.30 Lakhs as dowry as he 19 C.C.No.8995/2015 J had no option except to fulfill their illegal demand and with hope that they would take care and look after well of his daughter. The Accused in her defence admitted that, his son by name Harshavardhana.S @ Vijayasrinvas was married to the daughter of complainant on 27.2.2011, but has denied the demanding and acceptance of gold ornaments and silver articles and cash more than Rs.30 Lakhs as dowry. It is also claim of the complainant that, on 3.11.2013 the Accused approached and requested him to for financial assistance of Rs.40 Lakhs as hand loan since the said amount was required for the purpose of improvement of the business, upon considering the relationship as well as interest of his daughter's and urgency pleaded by the Accused he has paid sum of Rs.30 Lakhs to the Accused on 12.11.2013 by cash. The complainant in order to prove the fact that, he has lent an amount of Rs.30 Lakhs to the Accused on 12.11.2013 has not produced any documentary evidence. Even the complainant has also not produced any documents except the cheques in question to show that, as on the date of lending of the loan amount he was having an a mount of Rs.30 20 C.C.No.8995/2015 J Lakhs hard cash in his hand and same was paid to the Accused. In this regard it is relevant here to refer certain crucial admissions of the complainant in his cross-examination. The complainant/PW.1 at page No. 4 and 5 of his cross-examination admitted as under:
" I had arranged Rs.15 Lakhs from out of my source and Rs.15 Lakhs from the nephew of my wife. I had not withdrawn the said amount of Rs.15 Lakhs from my account. The witness volunteers I had the said amount with me".
Further admitted that, " I have not produced any document before the court to show that, I had such amounts in my bank account. I have not declared about my alleged lending of Rs.15 Lakhs from my source in my I.T. Returns. I can produce document before the court to show that, the nephew of my wife had such amount as on the date of alleged 21 C.C.No.8995/2015 J transaction. I can examine the said person before the court. The said person had paid the said amount to me in cash.
The complainant/PW.1 in his cross-examination at page No.6 and 7 had admitted as under:
" I have paid the said amount my son- in-law to the Accused in their house and at that time my wife and some relatives of the Accused were present. I have not declared about the payment of the said amount of Rs.30 Lakhs in my I.T. Returns. I had arranged the said amount of Rs.30 Lakhs from out of the salary of my wife, myself and borrowed some amount from my elder brother.............................................. My brother had paid me around Rs.10 Lakhs and I am not sure about the said amount. The name of my elder brother is Mr.Pramod....................................... ... ............................................................... ...............................................................22 C.C.No.8995/2015 J
my wife might have contributed around Rs.8 Lakhs towards the amount of Rs.30 Lakhs. I do not know as to my wife has declared about this fact in her I.T. returns or not? I had contributed around Rs.12 Lakhs towards the said amount of Rs.30 Lakhs. I have not declared amount the same in my I.T. returns. I being a Senior Police Officer did not feel that I was concealing the said fact to the I.T. Department".
The complainant/PW.1 in his cross- examination at page No.8 had admitted as under:
" The first payment of Rs.30 Lakhs was made by me to my son-in-law and the Accused as they demanded the said amount towards the dowry, while the payment of Rs.30 Lakhs in one lump sum made by me subsequently was for the purpose of development of the business of the Accused at her request. I being a Senior Police Officer did not feel like registering a complaint against my 23 C.C.No.8995/2015 J son-in-law and Accused for their alleged demand of the dowry from me at that point of time".
It is also relevant here to refer the admissions of the wife of the complainant i.e. PW.2 in her cross- examination. The PW.2 in her cross-examination admitted that, they have paid an amount of Rs.30 Lakhs to the family of the Accused and out of the said amount her husband has paid an amount of Rs15 Lakhs and she had paid an amount of Rs.15 Lakhs. The PW.2 has also admitted that, her elder sister's son who is residing at Dubai has also contributed an amount of Rs.8 Lakhs and she also aware of the fact that her husband has received amount from one Pramod Kumar and she do not know as to whether the said amount has been given to the Accused or incurred the same during the time of marriage as expenditure. The PW.2 has also admitted that, she had filed I.T.Returns for every years but has not declared the amount of Rs.7 Lakhs given to her husband and also admitted that, an amount of Rs.5 Lakhs has been given by her sister's son. The PW.2 has also admitted that, she had withdrawn an amount of Rs.5 Lakhs from her GPF 24 C.C.No.8995/2015 J and the same has been declared in her I.T.Returns.
19. Hence, on careful considering the admissions of the complainant and his wife i.e. PW.2 goes to show that, according to the complainant he has given an amount of Rs.30 Lakhs and golden ornaments and silver articles to the Accused and her son i.e. his son-in-law at the time of marriage of his daughter and subsequently after marriage of his daughter, has paid an amount of Rs.30 Lakhs to the Accused for development of her business i.e. alleged transaction in question, out of the said Rs.30 Lakhs he had arranged Rs.15 Lakhs from his source and remaining Rs.15 Lakhs arranged from nephew of his wife. The wife of the complainant i.e PW.2 in her evidence she has stated that, her husband has paid Rs.15 Lakhs and she has paid Rs.15 Lakhs and out of Rs.15 Lakhs paid by her, an amount of Rs.8 Lakhs paid by her elder sister's son to her and she had paid Rs.7 Lakhs and out of the said Rs.7 Lakhs she has withdrawn an amount of Rs.5 Lakhs from her GPF account. If really the complainant has arranged Rs.15 Lakhs from his source and his wife has paid Rs.7 Lakhs out of her salary that too by 25 C.C.No.8995/2015 J withdrawing Rs.5 Lakhs from her GPF account and admittedly both the complainant and his wife i.e PW.2 are government servants, atleast they could have produced the documentary proof to show that, as on the date of lending of the amount they had or arranged an amount of Rs.30 Lakhs cash in their hands and the wife of the complainant could have produced the documents to show that, she had withdrawn Rs.5 Lakhs from her GPF account but no such documents were forthcoming before the court. It is also relevant here to mention that, the complainant and his wife admitted in their cross- examination that, though they have paid huge amount but have not declared the same in their Income Tax Returns, the complainant and his wife being public servants, atleast they could have declare the amount alleged to have been paid to the Accused in their I.T. Returns but they have not declared the same and even both of them have not stated the reasons for non declaration of the alleged lending of loan amount to the Accused in their I.T.Returns, this may also leads to creates a doubt with regard to lending of alleged loan amount to the Accused.
26 C.C.No.8995/2015 J20. It is also relevant here to mention that the complainant in his cross-examination has categorically admitted that, he can produce the document before court to show that his wife's nephew had amount as on the date of alleged transaction and also admitted that, he can examine the said person before the court as the said person has paid amount to him in cash. It is also admitted by the complainant that, he does not wish to examine his wife and also his brother before the court. But the complainant has not produced the documents as admitted by him and also not examine the nephew of his wife as admitted by him but though he has admitted that, he will not going to examine his wife before the court but has examined his wife as PW.2 on his behalf, hence an adverse inference can be drawn against the complainant that, though he has admitted to produce the documents and examine the person i.e., the nephew of his wife but not produced the documents and examine the said person for the reasons best known to him. If really his wife's nephew has paid the amount to him and there were existence of the documents to that effect, definitely the complainant 27 C.C.No.8995/2015 J could have been produced the documents before the court and also examine the nephew of his wife, in such circumstances also a serious doubt arises with regard to contribution of the amount by nephew of wife of the complainant and the said amount has been allegedly lent to the Accused.
21. It is also relevant here to mention that, it is the specific claim of the complainant that, after marriage of his daughter with the son of Accused on 27.2.2011 and on 3.11.2013 the Accused approached and requested him to provide financial assistance of Rs.40 Lakhs for the purpose improvement of business and promising to repay the same within three months, upon considering the relationship as well as interest of his daughter's carrier in the Accused family and urgency pleaded by the Accused has paid a sum of Rs.30 Lakhs on 12.11.2013 by cash but after receiving the said amount the Accused and his son have started more and more both physical and mental torture and harassment to his daughter and ultimately his daughter has been thrown out from the house of the Accused on 10.12.2013. Subsequently his daughter 28 C.C.No.8995/2015 J has filed a complaint against her husband and the Accused and based on the complaint the jurisdictional police have registered a case and same is pending for investigation. It is relevant here to mention that, the complainant has not produced any documents to show that, her daughter has field complaint against the Accused and her son and a case has been registered against them and investigation is pending but the Accused in support of her defence has produced the certified copy of the charge sheet filed in Crime No.408/2014 by the J.P.Nagar Police for the offence punishable U/s.498a, 506 r/ w sec. 34 of IPC and Sec.3 and 4 of D.P. Act and also certified copy of the complaint lodged by daughter of the complainant which are at Ex.D.7 and D.8 and also produced the certified copy of the statements of the complainant and his wife i.e PW.2 herein given before the concerned police. The complainant during the course of cross-examination of the Accused has not disputed the Ex.D.7 and D.8 i.e .charge sheet and complaint lodged by the daughter of the complainant. Hence, on careful reading of the Ex.D.8 i.e., the complaint lodged by the daughter of the complainant against the Accused 29 C.C.No.8995/2015 J and her son i.e. her husband, wherein at para No.2 and 3 of complaint it is alleged that, at the time of marriage of the daughter of the complainant had given gold ornaments, diamond ring, and silver articles and cash of Rs.50,000/- to the son of the Accused and also incurred expenditure of Rs.30 Lakhs for performing the marriage. It is further alleged that, after two months from the date of marriage i.e. 27.2.2011 the Accused and her son i.e. the husband of the complainant's daughter have started to ill-treat her mentally and physically by abusing her in filthy language, inspite of that by tolerating the same and she was living in their house, but in the month of April 2011 her husband has demanded and received an amount of Rs.10 Lakhs and in the month of February 2012 an amount of Rs.15 Lakhs and again in the month of March an amount of Rs.5 Lakhs in total an amount of Rs.30 Lakhs given as a dowry to them and she had requested to return of the said amount but at that time her husband has tortured her and also forced her to take and given poison to her and thereafter she got admitted to the Apollo hospital on 5.9.2013 for taking treatment and thereafter again 30 C.C.No.8995/2015 J started to ill-treat her at the instance of the Accused and finally as per the instructions of the Accused her husband had taken her and left her on the Tumkur Road on 10.12.2013 to her house since then she is residing in her maternal house and in the meantime her mother had been to the house of the Accused and requested to take her daughter but they did not agreed to take her back.
22. Hence, on entire reading of the allegations made in the complaint made by the daughter of the complainant in Ex.D.8 it is nowhere stated about the alleged transaction in question, if really the Accused had approached the complainant on 3.11.2013 and requested to lend a hand loan of Rs.40 Lakhs and upon considering the relationship the complainant has paid Rs.30 Lakhs to the Accused for improvement of her business, definitely the daughter of the complainant would have stated the said fact in her complaint as the said complaint was filed on 10.6.2014 that too after the alleged transaction in question. It is nowhere stated by the daughter of the complainant in her complaint, on the contrary she has stated that, after three months of her marriage 31 C.C.No.8995/2015 J they had given an amount of Rs.30 Lakhs i.e Rs.10 Lakhs on 18.4.2011 and Rs.15 Lakhs in the month of February 2012 and Rs.5 Lakhs in the month of March 2012 and even in the statements given by the complainant and his wife before the police on 11.6.2014 nowhere stated about the alleged transaction in question in their statement, if really the complainant has lend an amount of Rs.30 Lakhs to the Accused on 12.11.2013, defiantly the complainant and his wife would have stated the same in their statements, but neither the complainant nor his daughter and his wife have stated that, on 12.11.2013 the complainant has paid an amount of Rs.30 Lakhs to the Accused for the purpose of improvement of business as claimed in the complaint, in such circumstances a serious doubt arises in the mind of the court with regard to lending of the loan amount of Rs.30 Lakhs to the Accused on 12.11.2013. It is also relevant here to mention that, the daughter of the complainant in her complaint i.e.,Ex.D.8, has stated that, they had given an amount of Rs.10 Lakhs in the month of April 2011, Rs.15 Lakhs in the month of February 2012 and Rs.5 Lakhs in the month of March 2012 in 32 C.C.No.8995/2015 J all Rs.30 Lakhs that itself negativates the claim made by the complainant in this complaint that he has paid an amount of Rs.30 Lakhs to the Accused for the purpose of improvement of business of the Accused on 12.11.2013.
23. It is also relevant here to mention that, during the course of cross-examination of the complainant admitted that, the Accused had approached him seeking financial assistance from him on 3.11.2013 and he has lent the same to her on 12.11.2013 and prior to the said transaction there has been no other financial transaction between him and Accused and as on 12.11.2013 the relationship between his daughter and son-n-law was not so cordial. It is also admitted by the complainant that, he do not remember as to the complainant which had been lodged his daughter Sushrutha against the Accused and her son was prepared prior to going to the police station or thereafter and also admitted that he being a police officer and being a responsible father his daughter Sushrutha used to share about her alleged harassment with him and also admitted that, at the 33 C.C.No.8995/2015 J time of filing of the complaint by his daughter he and his wife had accompanied their daughter, Sushrutha to the JP Nagar Police station. It is also stated by the complainant that, as per para No.2 of the complaint dated: 10.6.2014 he has borne the expenses of Rs.30 Lakhs as the marriage expenses and also towards the gold and silver articles at the time of marriage and has not denied the contents of para No.2 of Ex.D.8 read over to him and also admitted that, declared about the gold of 500 gms, the silver of 2 ½, kgs and cash of Rs.30 Lakhs in his I.T.returns and he do not remember as to when he has paid Rs.30 Lakhs to the Accused and her son at the first instance by way of installments and he has not visited the Apollo hospital on 5.9.2013 in respect of the alleged incident as described in para No.2 in page No.2 of the complaint at Ex.D.8 and he was informed about the same by his daughter later on and also stated that, he do not remember as to if he has been summoned and his statement has been recorded by the concerned police in connection with the investigation of Crime No.408 of 2014 of JP Nagar Police Station and also admitted that, he do not know that, PSI JP Nagar Police station by name 34 C.C.No.8995/2015 J Manjunath has recorded his statement in connection with the investigation of Crime No. 408/2014 on 11.6.2014 and could not remember as to he had visited the JP Nagar police station on 11.6.2014 and had given his statement on 11.6.2014 by stating that, his daughter had informed him about the alleged incident dated: 5.9.2013 to him when his wife and himself had visited the hospital. Hence, the above admissions of the complainant makes it clear that, the complainant has admitted the contents of the complaint lodged by his daughter as per Ex.D.8 but though he has not denied the recording of his statement by the PSI JP Nagar Police Station but he has stated that, he do not remember as to whether he has visited the JP Nagar police station and had his given his statement on 11.6.2014, hence it goes to show that, the complainant has not denied recording of his statement on 11.6.2014 by the PSI of JP Nagar police station in connection with crime No. 408/2014, in such circumstances it can be held that, according to the contents of the complaint lodged by the complainant's daughter and statement given by the complainant and his wife before the police station there are serious allegations made by 35 C.C.No.8995/2015 J the daughter of the complainant against her husband and Accused herein with regard to alleged ill treatment given by them and also forced her to take poison due to that she had admitted to hospital on 5.9.2013 and the said fact has been informed to the complainant by his daughter, under such circumstances it can be held that as on 5.9.2013 there were no cordial relationship between the complainant's daughter and Accused and her son and same has been intimated to the complainant, therefore when there were no cordial relationship between the complainant and Accused then in such a situation there is no possibility of approaching the Accused and her son to the complainant for requesting hand loan of Rs.40 Lakhs for improvement of her business and also the question of lending alleged loan amount appears to be doubtful. It is also relevant here to mention that, the complainant in his legal notice has not stated about the filing of complaint by his daughter against the Accused and her son and only after giving reply by the Accused has disclosed the real facts in the complaint and in his evidence, this circumstances also may leads to suppression of true facts by the 36 C.C.No.8995/2015 J complainant. Therefore on overall perusal of the Ex.D.7 and D.8 and the admissions of the complainant makes it clear that, a serious doubt arises with regard to lending of alleged loan amount to the Accused, as the daughter of the complainant in her complaint i.e in Ex.D.8 and in the statement of the complainant given before the police one breath they contended that, immediate after two months from the date of marriage they had given an amount of Rs.30 Lakhs to the Accused and her son and another breath in the complaint and evidence of the complainant contended that, the Accused has approached on 3.11.2013 and requested to lend loan amount, in such circumstances the claim made by the complainant appears to be doubtful and the said claim is itself negativated by the contents of Ex.D.8 and the statement given by the complainant before the police during the course of investigation of the complaint lodged by his daughter. Therefore the complainant has not produced reliable evidence to accept his claim that, he has lent an amount of Rs.30 Lakhs to the Accused on 12.11.2013 for the purpose of improvement of business, on the contrary it creates serious doubt about lending of the alleged 37 C.C.No.8995/2015 J loan amount.
24. It is also the specific claim of the complainant that, after borrowing the loan amount the Accused and her son had given more mental torture and harassment to his daughter and also thrown out her from their house on 10.12.2013 and thereafter he and his family members approached the Accused and requested to take care of their daughter but their efforts were went in vain and also requested to repay the loan amount of Rs.30 Lakhs to the Accused , subsequently his daughter lodged the complaint against her husband and Accused and based on the said complaint the jurisdictional police have registered a case and same is pending for investigation, in the mean time the Accused and her son approached him and his daughter and handed over the cheques in dispute i.e Ex.P.1 to P.3 for sum of Rs.30 Lakhs duly signed by the Accused as Proprietrix of S.S.Murthy Company towards discharge of her legal debt/obligation in his favour and the Accused has also issued a letter addressed to his daughter by mentioning the transaction as well as cheques and amount details having received 38 C.C.No.8995/2015 J by the Accused from him. In support of the said contention complainant has produced the letter alleged to have been issued by the Accused which is at Ex.P.11. It is interesting to mention here that, the complainant in his legal notice, complaint and evidence nowhere stated on which date, month and year he has visited the house of the Accused and requested for repayment of the loan amount in question and on which date, month and year and place the Accused has issued the cheque to him, this circumstances also leads to draw an adverse inference against the complainant with regard to on which date, month and year and in which place the cheques in question have been handed over to him. It is also relevant here to mention that, the complainant has not disclosed about the existence of Ex.P.11 dated: 25.6.2014 i.e the letter alleged to have been issued by the Accused in the legal notice issued by her which is the basic document for initiation of the proceedings U/s.138 of Negotiable Instruments Act. No doubt the complainant has mentioned the issuance of cheques and dishonour of cheques and demanded the amount covered under the dishonour cheques within 15 days from the date 39 C.C.No.8995/2015 J of receipts but the complainant has not mentioned the nature of debt and on which date, month and year the alleged debt become due and how much amount has lend to the Accused and on which date month and year the alleged amount was lend was due by the Accused, therefore in the absence of nature of debt and due and liability in the legal notice creates a doubt about the existence of the documents which have been subsequently produced by the complainant during the course of trial. If really the Ex.P.11 was in existence as on the date of issuance of the legal notice there was no hindrance for the complainant to mention about the existence of Ex.P.11 in the legal notice but on the contrary after giving reply by the Accused by disclosing the fact that, on 25.6.2014 the cheques in question were obtained in the police station, the complainant disclosed it on the complaint and has produced the Ex.P.11 at the time of his evidence, hence the conduct of the complainant in non disclosure of existence of Ex.P.11 in the legal notice also create doubt with regard to Ex.P.11. It is also relevant here to mention that, according to the complainant during the pendency of investigation in respect of the 40 C.C.No.8995/2015 J complaint lodged by his daughter against the Accused and her son, Accused had handed over the cheques in question i.e. Ex.P.1 to P.3 in his favour and also issued a letter i.e Ex.P.11 by mentioning the transaction as well as the cheques and amount details having received by the Accused from him, but on perusal of the recitals of Ex.P.11 alleged to have been issued by the Accused wherein it is seen that, the said letter is addressed to the daughter of the complainant Smt.Sushrutha P.S. and in the said letter in the first para it is written that "the cheques in question belongs to S.S.Murthy company of the Accused have been issued towards the amount of Rs.30 Lakhs due to the daughter of the complainant and the cheques number date and amount i.e Ex.P.1 to P.3 are referred. It is further written that, she had agreed to return all the gold ornaments which have been received from the daughter of the complainant and subsequently it is added that, Accused has also agreed to return the amount of Rs.30 Lakhs which was borrowed from the complainant i.e. Pradeep Kumar, as a hand loan within 30.9.2014 and if she fails to return the gold ornaments and amount within the said date, the 41 C.C.No.8995/2015 J Accused has agreed to take legal action against her. Hence, for sake of discussion, if it is assumed that, the Ex.P.11 was issued by the Accused but as per the recitals of the Ex.P.11, there is no reference in respect of cheques in question i.e Ex.P.1 to P.3 were issued in the name of complainant or the same were handed over to the complainant towards discharge of the alleged debt or loan amount in question and it is also seen from Ex.P.11 that, the Accused has agreed to return the gold ornaments and amount of Rs.30 Lakhs within 30.9.2014 but no such averments are pleaded by the complainant either in the legal notice or in the complaint or in his evidence, hence it goes to show that, as per Ex.P.11 it cannot be held that, the cheques in question have been issued or handed over by the Accused infavour of the complainant towards discharge of alleged loan amount of Rs.30 Lakhs on the contrary the recitals discloses that, the said cheques have been given to the daughter of the complainant and the Accused has undertaken to repay the amount of Rs.30 Lakhs borrowed as hand loan from the complainant within 30.9.2014 but it is nowhere mentioned that, the cheques mentioned in Ex.P.11 i.e the Ex.P.1 to P.3 in this case were issued 42 C.C.No.8995/2015 J in the name of complainant towards discharge of the loan transaction in question. Therefore the complainant has failed to prove that, the Accused has issued Ex.P.1 to P.3 cheques in question in his favour towards discharge of the debt in question and also issued a letter i.e Ex.P.11 by mentioning the transaction as well as the cheques and amount details having received by the Accused from the complainant, in such circumstances Ex.P.11 will not helps the complainant to prove the fact that, the cheques in question have been issued by the Accused towards discharge of the debt in question.
25. It is the specific defence of the Accused that, Ex.P.1 to P.3 were snatched from her on 25.6.2014 at JP Nagar Police station as she was called by the JP Nagar Police and on that day the complainant, his wife and daughter had came to the police station and the complainant influenced the police higher officer and took three cheque leaves from her for Rs10 Lakhs each and also on the same day the police taken a letter to that extent from her and the said cheques have been taken from her by coercion and threatening by the police. It is relevant 43 C.C.No.8995/2015 J here to mention that the Accused has produced true copy of the letter dated: 25.6.2014 obtained from the JP Nagar police station and another letter obtained from JP Nagar police station which are at Ex.D.5 and D.6 and the same documents were also marked as Ex.N.2 and N.3 during the course of cross- examination of the complainant.
26. It is relevant here to mention that, the complainant in his legal notice, complaint and evidence has not stated about the date and place of issuance of cheques in question, but in the complaint has stated that the cheques in question were issued by the Accused in his favour and handed over to him and his daughter and also issued a letter addressing to his daughter Smt.Sushrutha by mentioning the transaction as well as cheque and amount details having received the amount from him. But it is important to note here that, the complainant in his cross-examination has admitted contrary to it that, the Accused has issued the cheques in dispute in her house in J.P.Nagar to his daughter and he do not know as to who has written the contents of the cheques in 44 C.C.No.8995/2015 J dispute and the cheques were given to him as post dated cheques. The complainant has also stated that, he do not know that, as per recitals of Ex.N.2 i.e D.5 the J.P.Nagar police had collected the cheques in dispute from the Accused in the police station and he do not know that the contents of Ex.P.11 and that of Ex.N.2 have been written by some person. The complainant has also admitted that, he do not know who had written the Ex.P.11 and there is a reference of 3 cheques in Ex.P.11 and reference of 2 cheques in Ex.N.2. The complainant has also not denied the suggestions made to him that, Ex.N.3 is given by his daughter to the J.P.Nagar Police station and has not denied the suggestion that, the writings inEx.n.3 are his daughter's hand writings.
27. Hence, the above admissions of complainant are clearly goes to show that, the complainant has clearly admitted that, the cheques in questions have been collected by the complainant's daughter in J.P.Nagar Police station. The complainant has not denied the contents of documents i.e Ex.N.2 i.e Ex.D.5 and Ex.N.3 i.e 45 C.C.No.8995/2015 J Ex.D.6 and the writings found in Ex.D.5 and D.6 are one and the same and have been written by his daughter. It is also relevant here to mention that, in Ex.D.5 it is seen that, the Accused has issued a letter addressing police inspector J.P.Nagar police station, Bengaluru City, wherein it is referred that, the cheques bearing Nos. 43160 dated: 27.12.2014 for Rs.10,00,000/- and another cheque bearing No. 431603 date: 12.12.2014 for Rs.10,00,000/- i.e. drawn on Vijaya Bank, South-End Circle Branch, Bengaluru pertaining to S.S.Murthy company account bearing No. 120200301000127 i.e the Ex.P.1 and P.3 cheques towards the amount of Rs.30 Lakhs which are to be given to the Smt.Sushrutha i.e. daughter of complainant. Hence it goes to show that, as per Ex.D.5, the Ex.P.1 and P.3 cheques in questions have been given by the Accused to the police inspector of J.P.Nagar Police on 25.6.2014 i.e. as on the date of alleged issue of cheques in question to the complainant as per Ex.P.11. If really the Accused has issued the cheques in question to the complainant or towards the repayment of alleged loan of Rs.30 Lakhs, then question of issue of Ex.P1 and P.3 cheques to Police Inspector, J.P.Nagar Police 46 C.C.No.8995/2015 J station does not arise at all. It is also relevant here to refer that as per Ex.D.6, the daughter of complainant has also addressed letter to the police inspector of J.P.Nagar police Bengaluru wherein the daughter of complainant has requested to keep the investigation pending in Cr.No.408/2014 till encashment of cheques issued by the Accused i.e her mother-in-law for Rs.30 Lakhs with post dated cheques dated: 27.12.2014. hence on combined reading of Ex.D.5 and D.6 and Ex.D.7 it appears that, the daughter of complainant has filed complaint against the Accused and her son i.e husband of the complainant's daughter for the offence punishable U/s.498A, 506 R/w Sec. 34 IPC and U/s.3 and 4 of D.P.Act and the said complainant was registered by the JP Nagar police under Cr.No.408/2014 against the Accused and her son on 10.6.2014 and during the pendency of investigation, the cheques in question i.e. Ex.P.1 and P.3 have been given to the police Inspector of J.P.Nagar police as per letter i.e. Ex.D.5 and after receiving the said cheques towards payment of Rs.30 Lakhs the complainant in Cr.No.408/2014 i.e daughter of complainant herein has written a 47 C.C.No.8995/2015 J request letter as per Ex.D.6 to the Police Inspector, J.P.Nagar to keep the investigation pending till the encashment of cheques i.e Ex.P.1 and P.3 in question, since they were issued post dated cheques. Therefore if really the complainant had lend Rs.30,00,000/- to the Accused on 12.11.2013 for development of business to the Accused and her son and in turn the cheques in question i.e Ex.P.1 to P.3 have been issued in favour of complainant by the Accused towards payment of alleged loan, definitely, the said fact would have been mentioned either in Ex.D.5 and D.6, but on the contrary Ex.D.5 or D.6 discloses that, the cheques in question have been obtained in the police station, by the daughter of complainant in respect of complaint lodged by her which was registered in Cr.No.408/2014 for the offence punishable U/s.198A, 506 R/w 34 of IPC and U/s.3 and 4 of D.P.Act, therefore the complainant has miserably failed to prove that, the Accused has issued the cheques in question i.e.Ex.p.1 to P.3 in his favour toward discharge of loan amount.
28. The Accused in order to rebut the 48 C.C.No.8995/2015 J presumptions available to the complainant U/s.118 and 139 of N.I. Act herself examined as DW.1 by filing her affidavit evidence, wherein she has denied the entire transaction in question and issuance of cheque to the complainant towards alleged discharge of the loan amount and also denied the averments of the complaint made by the complainant. The Accused /DW.1 has stated that, her son by name Vijay was married the daughter of the complainant i.e. Sushrutha and at the time of their marriage and before marriage and after marriage she has not demanded and received any dowry from the complainant and earlier to marriage her son was residing separately and his marriage was solemnized on 27.2.2011 since then her son and daughter of the complainant were residing in No.37, Samruddi Nynappanahalli village, Begur Main Road, Bengaluru till the death of her son and her son was running cement and iron business at No.7, ground floor, V.G.R Tower, BDA road, Nynappanahalli village, Avanisingeri Nagar, Bengaluru subsequently after marriage has shifted his business to Sy.No.78/2B, Opp. Sai Mandira 80 ft. road, BTM 6th stage, Bannerghatta Road, IIM Post, Bengaluru and the 49 C.C.No.8995/2015 J said business was running in the name of Sushrutha i.e. daughter of the complainant at No.44/1, Singh Layout, Arakere, Bannerghatta Road, Bengaluru. The Accused/DW.1 further stated that, on 25.6.2014 the JP Nagar police called her and she went to the police station at 8.30 a.m and detained her till 12.00 noon without informing anything at that time the complainant and his wife, his daughter had came to the police station and at that stage the police told her that her son has received an amount of Rs.30 Lakhs from the complainant, hence she has to pay the same and the complainant influenced the police higher officers and tortured her till night to get the money from her, finally the police took three cheque leaves from her for Rs.10 Lakhs each/- and also on the same day taken a letter to that extent from her, hence the cheques in question were taken from her by coercion and threatening by the police and now the complainant had produced the said cheques in this complaint though she has not received any money from him. The Accused/DW.1 further stated that, the daughter of the complainant has given a request letter to the JP Nagar police requesting to keep the 50 C.C.No.8995/2015 J investigation pending till encashment of the cheques , hence the main intention of the complainant was to extract money from her not for the dowry harassment and subsequently when the cheques were dishonoured and the payment was stopped by her the complainant has made arrangement to file false charge sheet against her for dowry harassment which is still pending. In support of her oral evidence has produced the true copy of the Vat registration certificate of her son as per Ex.D.1, Rental agreements as per Ex.D.2 and D.3, Vat registration certificate of her daughter-in-law i.e the daughter of the complainant as per Ex.D.4, true copy of the letter issued by the Accused infavour of the police inspector, J.P.Nagar P.S. Bengaluru City as per Ex.D.5, true copy of the letter addressed to the police Inspector, J.P.Nagar P.S. Bengaluru by the daughter of the complainant a s per Ex.D.6, certified copy of the charge sheet filed by J.P.Nagar Police in Crime No. 408/2014 for the offence punishable U/s.498a, 506 r/w Sec. 34 of IPC and U/s.3 and 4 of D.P. Act as per Ex.D.7, certified copy of the complaint lodged by the complainant's daughter as per Ex.D.8.
51 C.C.No.8995/2015 J29. The learned counsel for the complainant though cross examined the Accused in length but nothing has been elicited to discredit or discard he evidence of Accused. it is important to note here that, on entire perusal of the cross-examination, the complainant has not touched the documents produced by the Accused i.e Ex.D.1 to D.8. It is true that, the Accused admitted that, neither the complainant nor his wife and daughter-in-law Sushrutha have never harassed her on any day and also admitted that, she has not lodged any complaint either against the police authorities or against the complainant in respect of collecting of cheques in question forcibly from her in the police station, before any authorities or court and has not given stop payment instructions to her banker in respect of subject cheques in question and has not issued any legal notice either to the complainant or to the concerned police officials calling upon them to return her cheques. But it is important to note here that, the Accused has specifically stated her inability for non taking of action against the complainant or the concerned police officials that, she do not know that she could have taken any such action against 52 C.C.No.8995/2015 J the police authorities in respect of cheques were collected from her in the police station on 25.6.2014 and as her son expired on 19.7.2014 and for the said reason she could not lodge complaint against complainant or police authorities. The Accused has also stated that, she had handed over the cheques in the police station to the police inspector as he has threatened her that, in case she did not hand over her cheques to him she would be sent to jail and the police inspector had collected the cheques from her so as to give them to the complainant. It is also stated by the Accused that, she had three sons among whom only one is alive and her eldest son expired in the year 2012 due to heart attack at the age of 32 years. Hence, the inability of the Accused in respect of non taking of action against the complainant and the police authority is taken in to consideration certainly the explanation given by the Accused for non imitation of the action against the complainant and police authorities regarding collection of her cheques in the police station can be acceptable one, since in view of death of her son, immediately after collection of the cheques in question from her by the police authorities that too 53 C.C.No.8995/2015 J with reference in writing i.e as per Ex.D.5, in such circumstances there are every possibilities of non taking of action by the Accused against the complainant and police authorities with regard to return of cheques in question from the complainant or police authorities but the facts remain as it is that the cheques in question have been collected from the Accused on 25.6.2014 at the JP Nagar Police Station which is evidence by the Ex.D.5 and D.6 in relation to the investigation pending in crime No.408/2014 on the basis of complaint lodged by the daughter of the complainant at JP Nagar PS. It is true that, though the Accused has admitted that, she had not filed any complaint against police authorities or complainant before the concerned authorities or court alleging that, they had collected the cheques in question from her forcibly but only on that ground it cannot be held that, cheques in question have been issued by the Accused to the complainant towards discharge of the loan amount as claimed by the complainant in the complaint, on the contrary the documents produced by the Accused corroborates the defence of the Accused that, cheques have been collected by the daughter of 54 C.C.No.8995/2015 J the complainant through the JP Nagar Police as per Ex.D.5 and D.6 in respect of the complaint lodged by her in crime No. 408/2014 before the JP Nagar Police, therefore the Accused has successfully rebutted the presumption available in favour of the complainants not only by producing oral evidence by also producing the documentary evidence that the cheques in question were not issued to the complainant towards discharge of alleged debt in question.
30. It is also relevant here to mention that, the complainant in his notice, complaint, evidence has not mentioned the specific date and has not mentioned or stated in which place the Accused has issued the subject matter of the cheques in his favour, even in the complaint the complainant has not stated the cheques in question were issued in his favour towards discharge of the loan amount in question and it is already held in the above that, though the complainant has stated in his cross- examination that, the cheques in question were issued to him at the house of the Accused at J.P.Nagar but the complainant also admitted in his 55 C.C.No.8995/2015 J cross-examination that, the cheques in question were collected by the police inspector of J.P. Nagar PS in the police station as per Ex.D.5, hence in view of the above said admitted facts a serious doubt creates with regard to issuance of cheques in question by the Accused infavour of the complainant towards discharge of the alleged loan transaction in question, on the contrary it corroborates the defence of the Accused that, the complainant has collected the cheques in question in JP Nagar police station in relation to the complaint lodged by his daughter which was registered under crime No. 408/2014. If really the Accused has borrowed the loan amount in question and issued the cheques in question towards discharge of the said loan amount as claimed by the complainant, definitely the complainant would have mentioned the date and place in which the cheques in question were issued in his favour, failure to mention the above said important facts may leads to draw an adverse inference against the complainant that, the claim made by the complainant in this case appears to be doubtful and it corroborates the defence of the Accused. In this regard, it is relevant here to refer the decisions of Hon'ble High Court of 56 C.C.No.8995/2015 J Karnataka reported in ILR 2014 KAR 6572 in a case of Sri.H.Manjunath vs. Sri.A.M. Basavaraju, wherein the Hon'ble High Court of Karnataka held that "NEGOTIABLE INSTRUMENTS ACT, 1881- section 138 offence under - Judgment of Acquittal - Appealed against -Absence of statement in the complaint as to when the amount was actually given to the accused- Absence of material particulars of the transaction in the complaint- except signature all other entries are in different handwriting different ink and undoubtedly made at different time- Mentioning of merely the date of issue of cheque without any material particulars - HELD
-, Judgment of acquittal is justified- As seen from the complaint there is no statement as to when the amount was actually given to the Accused. The complainant has merely mentioned the date of issuance of cheque without any material particulars of the transaction. The cheque in question undoubtedly is signed by the accused. The dispute raised is entries made in the cheque are not in his handwriting. - It is not the case of the complainant that cheque was 57 C.C.No.8995/2015 J issued in blank and filled up later with consent of the accused- FURTHER HELD, perusal of cheque at Ex.P.1 makes it manifest that except signature all other entries are in different hand writing, different ink and undoubtedly made at different time. In this view it is difficult to accept the version of the complainant. CRIMINAL PROCEDURE CODE, 1973 - SECTION 378(4) - APPEAL AGAINST ACQUITTAL - DISCUSSED. It is a relevant here to the decision of Hon'ble Apex Court of India reported in (2015) 1 SCC 99 in the case of K.Subramani Vs. K. Damodar Naidu., wherein the Hon'ble Apex court held that " Debt, Financial and Monetary Laws- Negotiable Instruments Act, 1881 - Ss, 138, 118 and 139 - Dishonour of cheque - Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant- accused - Presumption infavour of holder of cheque, hence, held, Stood rebutted- Acquittal restored". In another decision reported in (2014) 2 SCC 236 in the case of John K. Abhraham Vs. Simon C.Abraham and another., wherein the Hon'ble Apex court held that " In the present case 58 C.C.No.8995/2015 J the complainant not aware of the date when substantiate amount of Rs.1,50,000/= was advanced by him to the appellant/accused - respondent/ complainant failed to produce relevant documents in support of alleged source for advancing money to the 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/ lacuna in evidence of complainant, judgment of High Court reversing acquittal of Accused by trial court, held was perverse and could not be sustained - acquittal restored". Hence by applying the said principles of law laid down by Hon'ble Apex Court to the present facts of the case are aptly applicable to this case as in the present case also the complainant has not stated the date and place in which the cheques in question were issued to him , in such circumstances in view of the above principles of law laid down by Hon'ble High Court of Karnataka and Apex Court the complainant 59 C.C.No.8995/2015 J has miserably failed to prove that he has lent the alleged loan amount to the Accused and in turn the Accused has issued the cheques in question towards the discharge of the said alleged loan amount in question and the Accused has rebutted the presumption available infavour of the complainant.
31. Therefore, on careful scrutiny of over all evidence of the complainant and Accused as it is already held and come to the conclusion that, the complainant has miserably failed to prove that he has lend an amount of Rs.30 Lakhs/- to the Accused by way of cash and in order to repay the said loan amount the Accused has issued the cheques in question i.e.,Ex.P.1 to P.3 infavour of the complainant. No doubt, some discrepancies have been elicited by the complainant during the cross- examination of Accused but there are no proof regarding the same, however when the complainant himself has failed to establish his case beyond all reasonable doubt, he cannot be permitted to find fault in the defence of the Accused. Hence the standard of proof is expected from side of the complainant is proof beyond all reasonable doubt and in the present case complainant has failed to 60 C.C.No.8995/2015 J prove his case beyond all reasonable doubt on the contrary the Accused has successfully rebutted the presumption available infavour of the complainant U/s.118 and 139 of N.I. Act by taking reasonable and probable defence, accordingly for the above said reasons this point is answered in the 'Negative'.
32. Point No.2: In the light of discussions made at above point and for the said reasons this point is answered in the negative and it is just and proper to pass the following :-
ORDER The complaint U/s.200 of Cr.P.C. filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C. the accused is acquitted for the offence punishable U/sec.138 of N.I.Act. Personal bond and surety bond executed by the Accused stands cancelled.
(Directly dictated to the Stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 26th day of February, 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.61 C.C.No.8995/2015 J
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.Pradeep Kumar.B; P.W.2 : H.T.Shoba;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 to P.3 : Original Cheque; Ex.P.1(a) to : Signatures of the Accused; P.3(a) Ex.P.4 to P.6 : Bank Memos; Ex.P.7 : Office copy of the Legal Notice; Ex.P.8 & P.9 : Postal Receipt & Postal Acknowledgement;
Ex.P.10 : Reply notice;
Ex.P.11 : letter issued by the Accused in the name
of complainant's daughter;
Ex.P.11(a) : signature of the Accused;
Ex.N.1 : VAT registration certificate;
Ex.N.2 : Letter /complaint to J.P.Nagar Police by
Accused;
Ex.N.3 : Complaint to J.P.nagar police by the
daughter of the complainant
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Smt. Hemalatha;
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : Vat Registration certificate 62 C.C.No.8995/2015 J Ex.D.2 & D.3 : Rent Deeds dated: 19.7.2011, and 15.9.2011 Ex.D.4 : Vat registration certificate of daughter-
in-law of Accused;
Ex.D.5 : true copy of the Statement dated:
25.6.2014;
Ex.D.6 : true copy of the letter written by the daughter-in-law of the Accused to the police inspector, J.P.Nagar PS;
Ex.D.7 : certified copy of the Charge sheet filed in crime No. 408/2014 of J.P.Nagar Ps for the offence punishable U/s.498a, 506 R/w Sec. 34 of IPC r/w sec. 3 and 4 of D.P.Act;
Ex.D.8 : certified copy of the statement given by daughter-in-law of the Accused before the PI , JP.Nagar PS dated: 10.6.2015; (Marked through PW.1) (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
63 C.C.No.8995/2015 J26.2.2020 Judgment pronounced in the open court vide separate order.
ORDER
The complaint U/s.200 of
Cr.P.C. filed by the complainant
for the offence punishable
U/sec.138 of N.I.Act is hereby
dismissed. No costs.
Acting U/sec.255(1) of
Cr.P.C. the accused is acquitted
for the offence punishable
U/sec.138 of N.I.Act.
Personal bond and surety
bond executed by the Accused
stands cancelled.
XVI ACMM, B'luru.