Bangalore District Court
Against The Accused For The Offence vs Assured That She Would Repay The Same ... on 24 November, 2018
1 CC.28999/2017 (J)
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 24th day of November-2018
Present: Subhash.B.Hosakalle.
B.Com.,LL.B (Spl)
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.28999/2017
2.Name of the Complainant: Mr.VADIVELU,
S/o.Muniswamy,
Aged about 30 years,
R/at No.32, 2nd Floor,
1st Main, 4th Cross,
Old KEB office,
Muninanjappa Layout,
Kavalbyrasandra,
R.T.nagar Post,
Bengaluru - 560 32.
3.Name of the accused: Smt.PRAMILA,
W/o.Denzil Leo Kumar,
Aged about 30 years,
R/at No.7/1, 1st Floor,
1st Main, 4th Cross,
Old KEB office,
Muninanjappa Layout,
Kavalbyrasandra,
R.T.nagar Post,
Bengaluru - 560 32.
4.The offence complained of U/s.138 of Negotiable
: Instruments Act.
5.Plea of the accused: Pleaded not guilty.
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6.Final Order: Acting U/s.255(1) Cr.P.C.,
Accused is Acquitted.
7.Date of final Order 24th day of November-2018.
***
This complaint is filed U/Sec.200 of Cr.P.C., by the
complainant against the accused for the offence
punishable U/Sec.138 of the Negotiable Instruments Act,
1881.
The facts in brief is as under.
2. As per complainant he know the accused since
four years as they are residing in the same building. In the
first week of October-2016 the accused has approached the
complainant and requested him to give hand loan of
Rs.2,50,000/- to meet out her financial problems. The
accused assured that she would repay the same within one
year. Accordingly the complainant paid the said loan
amount to the accused by way of cash. The accused
towards discharge of legally enforceable debt has issued a
cheque bearing No.000004, dated 4.10.2017, drawn on
Lakshmi Vilas Bank, Ganesh Block, Dinnur Main road,
R.T.nagar branch, Bengaluru. That on 05.10.2017 the
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said cheque was presented by the complainant for
encashment purpose and it was dishonored with an
endorsement of "Funds Insufficient". That on 23.10.2017
the notice was issued to the accused by RPAD. It was duly
served on the accused. Despite of service of the notice the
accused failed to pay the cheque amount and accordingly
she committed an offence punishable U/s.138 of the
N.I.Act. It is prayed to punish the accused.
3. After the institution of the complaint it has been
registered in PCR. No.14295/2017 and took cognizance of
the offence. The sworn statement of the complainant was
recorded and on the basis of the sworn statement and
other materials on the hand the criminal case has been
registered against the accused and summoned to her. In
response to the summons the accused put her appearance
through her learned counsel and got enlarged on bail and
to whom the prosecution papers were supplied to the
accused and recorded her plea. Accused denied the plea
and claimed for trial.
,
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4. During trial the complainant was examined as
PW.1 and got marked Ex.P.1 to P.6. The 313 statement of
the accused was recorded. The accused was examined as
DW-1 and got marked the Ex.D.1 to D.3.
5. I have heard the argument of learned counsel for
the complainant, perused the written argument submitted
by the accused, perused the pleading and evidence of the
parties and the following points would arise for my
consideration.
1. Whether the complainant proves that
the accused towards the discharge of
legally enforceable debt has issued a
cheque for a sum of Rs.2,50,000/-
and on its presentation for
encashment purpose it was
dishonored with an endorsement of
"Funds Insufficient" and thereby the
accused has committed an offence
punishable U/Sec.138 of N.I. Act,
1881 ?
2. What order?
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6. My answers on the above points for
consideration are as under.
Point No.1 : In the Negative
Point No.2 As per final order for the following:-
REASONS
7. Point No.1:- I have perused the averments of the
complaint, perused the entire evidence placed on record
and other materials in the file. The complainant was
examined as PW-1. He has filed evidence affidavit and
wherein he has been deposed as per averments made in
the complaint. In support of oral evidence the complainant
has got marked the Ex.P.1 the cheque dated 4.10.2017 for
a sum of Rs.2,50,000/- and Ex.P.1(a) is the signature of
the accused on the cheque, Ex.P.2 is Bank endorsement
dated 05.10.2017 reveals that the cheque has been
dishonored with an endorsement of "Funds Insufficient",
Ex.P.3 is the office copy of legal notice dated 23.10.2017
reflects that within 30 days statutory notice was issued to
the accused, Ex.P.4 and P.5 are the two postal receipts for
having sent the legal notice to the accused through
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registered post as well as speed post and Ex.P.6 is the
postal acknowledgement card for having due service of
legal notice on the accused.
8. On perusal of the materials produced by the
complainant speaks that the complainant has caused the
legal notice to the accused at the address as shown in the
cause title of the complaint. The said address is also find
place in the Ex.P.4 to P.6 which are the postal receipts and
acknowledgment card. It is pertinent to note that during
the examination-in-chief of the DW-1/Accused has not at
all denied her address as shown in the cause title of the
complaint and also in Ex.P.4 to P.6. Therefore, the
statutory presumption can be drawn as provided U/s.27 of
the General Clauses Act., in favour of the complainant,
that, the notice issued by him has been duly served on the
accused.
9. On plain perusal of the exhibits P.1 to P.6
discloses that the complainant has complied the
ingredients of Section 138 of the Act and accordingly the
complaint is well within the time.
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10. As a defence evidence the accused was examined
as DW-1. The DW-1 has got produced the Ex.D.1 to D.3.
The Ex.D.1 is the certified copy of FIR dated 13.11.2017,
Ex.D.2 is the certified copy of complaint lodged by the
accused against one Smt.Vani and her son Vadivelu who is
none other than the complainant in the case on hand and
Ex.D.3 is the certified copy of Order-sheet in Crime
No.345/2017 on the file of 11th ACMM Court, Bengaluru.
Apart from the defence evidence the accused has
submitted her written argument. I have perused the same.
She placed reliance upon the Judgment reported in AIR
2008 SC Page No.1325 - Krishna Janardhan Bhat
V/s.G.Dattatreya Hegde - held presumption U/s.139 of the
Act is rebuttable - duty of Court - presumption of
innocence as human rights and Doctrine of reverse burden
introduced by Section 139 - should be delicately balanced
- it largely depends on factual matrix of each case. 2007
AIR SCW 6736 - John K.John Vs. Tom Varghese and
another. John K.Abraham V/s.Simon 'C' Abraham and
another - reported in 2014 Crl. L.J. Page No.2304 - for
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drawing presumption U/s.118 R/W.Section 139 burden is
heavily upon complainant - complainant not sure as to
who wrote the cheque nor aware as to when and where
existing transaction took place for which cheque was
issued by accused - defects in evidence of complainant as
noted by Trial Court brushed by High Court without
assigning any valid reason - conviction of accused
therefore, not proper. 2014 (3) Crimes Page No.291
Supreme Court - Ramadass V/s.Krishnananda - Section
138 - complainant, an employee of accused having annual
saving of Rs.10,000/- claiming to have given hand loan of
Rs.5 lakhs to the accused - could not explain the source of
fund - claim not sustainable - Trial Court rightly
acquitting accused - Appellant.
11. The PW-1 in his examination-in-chief deposed
as per averments made in the complaint. I have perused
the cross-examination of the PW-1. He has stated that he
has been working as Field Officer in the office of Gemini
Associates and drawing the salary of Rs.25,000/- to
Rs.30,000/- per month. Further stated that he was
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residing in the house of the accused as a tenant and he
vacated the same. He further stated that he do not know
the date on which the accused has sought money from
him. Per contra he stated that in the first week of October-
2016 he given money to the accused in the presence of her
husband and in-laws. He further deposed that he does not
taken any documents from the accused regarding lending
money to her and not charged any kind of interest on the
loan amount and no acknowledgement has been received
from the accused. He further deposed that the accused
has issued a cheque on 04.10.2017 and she herself filled
the cheque. He further deposed that he has not produced
any kind of documents to show his monthly income of
Rs.25,000/- to Rs.30,000/- He further deposed that he can
produce the same. At this stage, it is necessary to mention
that, the PW-1/Complainant at the subsequent stage of the
proceedings failed to produce necessary documents as he
stated in his cross-examination regarding his monthly
alleged income of Rs.25,000/- to Rs.30,000/- He further
deposed that his wife has been running Tutorials and
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getting monthly income of Rs.6,000/- to Rs.7,000/-. To
prove this fact the complainant has not been produced any
materials in the case on hand.
12. This PW-1 in his further cross-examination para
No.11 has been specifically stated that he has not
produced any kind of documents to show that he had an
amount of Rs.2,50,000/- at the given point of time. But on
the contrary he has stated that he had withdrawn money
from the Bank and it was in his custody and further stated
that he has adjusted money from the others. He further
stated that he has borrowed Rs.1 lakh from his mother.
13. After perusing the relevant portion of cross-
examination of the PW-1 as narrated herein above, I have
gone through the evidence placed on record by the
accused. The accused has been examined as DW-1. This
DW-1 in her examination-in-chief has been denied the
averments of the complaint. Nowhere she has stated that
directly she borrowed an alleged amount of Rs.2,50,000/-
from the complainant. But she denied the signature on the
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cheque. She further stated that she has borrowed a sum
of Rs.1,50,000/- from the complainant and same was
repaid to the complainant. The learned counsel for the
complainant has placed reliance upon the said line of
version of the accused and submitted that the accused has
borrowed loan from the complainant and towards the
discharge of the loan amount has issued the cheque. The
said line of version of DW-1 would not come into the rescue
of the complainant because the accused has denied the
signature on the cheque. It is material to note that the
complainant has not produced convincing evidence to
prove that the accused is signatory to the instruments i.e.,
the cheque marked at Ex.P.1. In other words the
complainant failed to establish that the accused is drawer
of the cheque. The complainant would have referred the
cheque in question to handwriting expert for their opinion
regarding alleged signature find place on the instruments.
Hence, the said point of argument of learned counsel for
the complainant is hereby rejected as it has no substance.
12 CC.28999/2017 (J)
14. On assessment of cross-examination of the PW-1
as narrated herein above, it discloses that the complainant
had no financial capacity at given point of time. It is
evident that he has not possessed huge amount with him
to lent alleged loan amount as he sought under Ex.P.1 the
cheque for alleged sum of Rs.2,50,000/-. Further it is
evident that the complainant himself was a debtor to his
mother from whom he borrowed alleged sum of Rs.1 lakh
in order to pay to the accused. This shows that the
complainant had no huge sum with him at the relevant
point of time. Therefore, the story of the complainant is
not believable that, the accused has issued the alleged
cheque towards discharge of legally enforceable debt of
Rs.2,50,000/-. Through evidence it is undisputedly clear
that complainant failed to prove the material fact that the
accused owe a debt of Rs.2,50,000/- towards the
complainant. Under the light of this observation based on
the evidence, I am of the opinion that the complainant
failed to prove that the accused has issued the cheque
towards the discharge of legally enforceable debt as
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provided under the Proviso Clause of Section 138 of Act. It
is also clear from the discussion made herein above that
the accused is succeeded in rebutting the statutory
presumption available in favour of the complainant
U/s.139 of the Act.
15. For the aforesaid reasons, the complainant is
utterly failed to prove the fact that the accused issued a
cheque marked at Ex.P.1 towards discharge of legally
enforceable debt. Therefore accused is not found guilty for
the offence punishable U/s.138 of the Act. Accordingly, I
proceed to answer the point No.1 in Negative.
16. Point No.2 : In view of the reasons assigned on
Point No.1, I proceed to pass the following:-
ORDER
As per the provisions of Sec.255(1) Cr.P.C. the accused is hereby Acquitted for the offence punishable u/s.138 of NI Act, 1881. The accused is set at liberty forthwith. The personal bond executed by the accused is hereby stands cancelled.
14 CC.28999/2017 (J) Office to refund the cash surety of Rs.3000/- to the accused after expiry of appeal period.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 24th day of November-2018.) (Subhash.B.Hosakalle) XV Addl. CMM., Bangalore. ANNEXURE Witnesses examined for the Complainant:-
PW.1 Vadivelu.
Documents marked for the Complainant:-
Ex.P.1 Original cheque. Ex.P.1a Signature of the accused. Ex.P.2 Bank endorsement.
Ex.P.3 Legal Notice
Ex.P.4 & P.5 Two postal receipts.
Ex.P.6 Postal acknowledgement.
Witnesses examined For Defence:-
DW-1 Pramila Documents marked for Defence:-
Ex.D.1 Certified copy of the FIR. Ex.D.2 Certified copy of the complaint. Ex.D.3 Certified copy of the Order-sheet in Crime No.345/2017.
(Subhash.B.Hosakalle) XV Addl.CMM., Bangalore.
15 CC.28999/2017 (J) 24.11.2018 (Judgment Pronounced in the Open Court Vide Separate Order sheet ORDER As per the provisions of Sec.255(1) Cr.P.C. the accused is hereby Acquitted for the offence punishable u/s.138 of NI Act, 1881. The accused is set at liberty forthwith. The personal bond executed by the accused is hereby stands cancelled.
Office to refund the cash surety of Rs.3000/- to the accused after expiry of appeal period.
(Subhash.B.Hosakalle) XV Addl.CMM., Bangalore. 16 CC.28999/2017 (J)