Bangalore District Court
Sri E. Hanumantha Rao vs Smt. K. Aruna on 16 August, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 16th day August, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No.20815/2009
Complainant: Sri E. Hanumantha Rao
S/o. Sri Eshwar Rao,
Aged about years,
R/at at No.99,
1st Main, 2nd Cross,
RMV 2nd Stage, Ashwathanagar,
Bengaluru -560 034.
Accused: Smt. K. Aruna
W/o. Late K. Murthy,
R/at No.Q-56, 1st Floor,
5th Main Road, Maruthi Extension,
Sriramapura,
Bengaluru -560 021.
Also at:
Fun School Play Home,
No.4045, 3rd Main Road,
Krishna Nilaya,
Ground Floor, 2nd Stage,
'B' Block, Subramanyanagara,
Bengaluru -560 021.
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found not guilty
Date of order: 16th August 2016
2 CC No. 20815/2009
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 NI Act.
2. The brief facts of the complainant is as hereunder that; The Complainant stated that the Complainant and the accused are known to each other from several years and out of the acquaintance, the accused approached this complainant for the financial help of Rs.6,00,000/- in the month of June 2008 to meet her domestic necessities. The complainant by considering the request of the accused, had advanced a sum of Rs.6,00,000/- and after receipt of the loan amount, the accused agreed to repay the loan amount within six months. Subsequently, on the repeated request and demand of this Complainant to repay the loan amount, the accused towards repayment of the loan amount, had issued a post-dated cheque bearing No.096901 dtd.3.7.2009 for a sum of Rs.6,00,000/- drawn on Bank of India, Milk Colony branch, Bengaluru in his favour with a request to present the said for encashment on its due date and it will be honoured on its presentation.
3. It is further submitted by the complainant that he presented the said cheque for encashment before his banker Vijaya Bank, Sanjayanagar branch, Bengaluru on 3.7.2009 , but the cheque returned 3 CC No. 20815/2009 dishonoured for the reason "Insufficient Funds" on 6.7.2009 and the same was intimated to the accused. It is further submitted that as the accused has failed to make payment of the cheque amount, the Complainant on 16.7.2009 got issued the legal notice through RPAD and also under Certificate of Posting, calling upon the accused to pay the cheque amount within 15 days from the date of receipt of notice and the said notice was duly served upon this accused on 17.07.2009. The accused even inspite of receipt of legal notice, has neither chosen to make payment of the cheque amount nor she has replied to the notice. The accused knowing fully well that she has no sufficient funds in her bank account, had issued a bogus cheque and thereby accused has committed an offence punishable u/Sec.138 of N.I.Act.
4. After recording of 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 examined himself as PW1 and he got produced 5 documents marked as Ex.P.1 to Ex.P.5 and closed his side of evidence.
4 CC No. 20815/2009
6. After closure of the complainant side evidence accused Statement u/s 313 of Cr.P.C. was recorded and read over to the accused in her language. The accused denied the entire incriminating evidence in toto and she intended to lead her evidence. The accused got examined herself as DW1 and she got produced 6 documents marked as Ex.D.1 to Ex.D6 and closed her side of evidence.
7. I have heard the arguments of both the Learned Counsels and perused the records. The learned Counsel for the Complainant has also filed his written arguments .
8. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI 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, got examined as PW1-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
5 CC No. 20815/2009
11. PW1 deposed that the accused is known to him from several years and out of the acquaintance the accused borrowed the hand loan of Rs..6,00,000/- to meet her domestic necessities and after receipt of the loan amount, the accused agreed to repay the loan amount within six months. He deposed that on his repeated request and demand to repay the loan amount, the accused towards repayment of the loan amount, had issued a post-dated cheque bearing No.096901 dtd.3.7.2009 for a sum of Rs.6,00,000/- drawn on Bank of India, Milk Colony branch, Bengaluru in his favour with a request to present the said for encashment on its due date and it will be honoured on its presentation.
12. He further deposed that he presented the said cheque for encashment before his banker on 3.7.2009, but the cheque returned dishonoured for the reason "Insufficient Funds" on 6.7.2009 and the same was intimated to the accused. He further deposed that as the accused has failed to make payment of the cheque amount, he on 16.7.2009 got issued the legal notice through RPAD and also under Certificate of Posting, calling upon the accused to pay the cheque amount and the said notice was duly served upon this accused on 17.07.2009. 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 to the notice. He deposed that the 6 CC No. 20815/2009 accused knowing fully well that she has no sufficient funds in her bank account, had issued the bogus cheque and thereby accused has committed an offence.
13. PW-1 in order to prove his case, got produced the original cheque issued by the accused marked as Ex.P-1. He deposed that the signature found on Ex.P-1 cheque is that of this accused and he got identified the signature of this accused marked as Ex.P-1(a). He got produced the bank endorsement marked as Ex.P-2. He got produced the copy of the legal notice marked as Ex.P.3. He got produced postal acknowledgement card for having served notice marked as Ex.P-4. He got identified the complaint marked as Ex.P.5 and his signature on the complaint is marked as Ex.P.5(a).
14. The accused denied the entire case of the complainant and also denied the very fact that she had borrowed a total hand loan of Rs.6,00,000/- from this complainant and she in order to repay the said loan amount, had issued her Ex.P-1 cheque and same was bounced. The learned Counsel for the accused subjected the PW-1 for cross- examination. PW-1 was extensively cross-examined by the learned Counsel for the accused.
7 CC No. 20815/2009
15. Though PW-1 in his cross-examination has stated that he has no documents with him to prove that he had with him a sum of Rs.6,00,000/- to advance the same in favour of this accused as a loan and he advanced the said amount to this accused on her request. PW1 stated that he is not remembered when exactly he advanced the loan amount to this accused. However, he has stated that he advanced the loan amount in the month of June 2008 at the house of this accused. Even according to PW1, he advanced the huge loan amount of Rs.6,00,000/- out of his retirement benefits, as he was taken voluntary retirement from his work and got the retirement benefit. PW1 stated that he was working at UB City for about 14 years and taken the voluntary retirement and received the voluntary service benefits and out of the said amount, he had advanced a sum of Rs.6,00,000/- to this accused on his request.
16. Admittedly, the PW1 except adducing the oral evidence that he was working at UB City and he was taken voluntary retirement from his service , for which he was awarded retirement service benefits, has not chosen to produce any piece of document before this court. Even according to PW1 he is having documents with him to prove that he had sufficient funds to advance the loan amount to this accused in the month of June 2008 and on the request of the accused, he had advanced the hand loan of Rs.6,00,000/- to this accused by 8 CC No. 20815/2009 way of cash. Admittedly, the PW1 except adducing the oral evidence that he had documents with him to prove this fact, has not chosen to produce any piece of document before this court to substantiate his contention for the reason best known to him
17. Likewise PW1 in his cross-examination stated that he has not obtained any documents from this accused for the huge loan amount of Rs.6,00,000/- as a security and even he has not insisted this accused to furnish surety for the loan amount of Rs.6,00,000/-. He further stated that he has not informed the husband of the accused about the request of the accused for the loan amount of Rs.6,00,000/-. Though PW1 in his cross-examination denied the entire suggestions put to him and denied that there was no any loan transaction in- between them at any point of time and even he has not at all advanced any loan much less an amount of Rs.6,00,000/- to this accused at any point of time However, even according to PW1, he has not remembered exactly on which date he advanced huge loan amount of Rs.6,00,000/ to this accused and even he has not maintained any diary to prove that he advanced loan amount to this accused on the particular date on his request.
18. However, the accused has taken up the specific defence that, after the death of the husband of this accused, the accused has lost 9 CC No. 20815/2009 some of her cheques and with respect to the same, the accused on 11.1.2007 itself had given a police complaint regarding lost of her cheques and also she has given an application before her banker to make stop payment of the cheque, if anybody presented her lost cheque for encashment by stating that she has lost her cheques. The said defence was put to PW1 during his cross-examination by suggesting that on 11.1.2007 itself, the accused had lodged a police complaint regarding lost of her many cheques and even she has given an application before her banker to make stop payment of the cheques, if anybody presented the cheques for encashment on the ground that she has lost the cheques. Though the said defence was denied by the PW1 in his cross-examination and denied that he by mis-using the duly signed blank cheque of this accused, created the same as Ex.P.1 and filed this false complaint even though there was no any loan transaction in between him with this accused much less amounting to Rs.6,00,000/-.
19. PW1 in his cross-examination even though denied the entire suggestions put to him and denied that there was no any loan transaction in-between him with this accused and even denied the suggestion that the accused has not issued her Ex.P1 cheque towards the repayment of the loan amount of Rs.6,00,000/- and she has no 10 CC No. 20815/2009 liability to pay the cheque amount and he by misusing the lost cheque of this accused, created the same as Ex.P1 for Rs.6,00,000/- and filed this false case against this accused with an intention to make an unlawful gain for himself and to cause monetary loss to this accused. However, admittedly, PW-1 has not chosen to produce documents before this court to prove that he had with him a sum of Rs.6,00,000/- to advance the same to this accused in the month of June 2008 and he advanced the said amount to this accused on her request and this accused towards the repayment of the loan amount of Rs.6,00,000/- , had issued her Ex.P1 cheque in his favour for a sum of Rs.6,00,000/-. The PW1 except adducing the oral evidence that he had advanced a sum of Rs.6,00,000/- to this accused in the month of June 2008 and towards the repayment of the loan amount, the accused had issued her Ex.P1 cheque, has not chosen to prove the said fact by adducing documentary evidence before this court.
20. PW1 has stated that there was no agreement for the interest on the said amount in-between him with this accused and even he has not demanded any interest from this accused on the huge amount of Rs.6,00,000/-. It is not the testimony of PW1 that he has obtained documents for the security of the huge loan amount of Rs.6,00,000/- from this accused.
11 CC No. 20815/2009
21. Though PW1 denied the suggestion that he has no financial capacity to advance the huge loan amount of Rs.6,00,000/- to this accused and even he had no money with him to advance the same in favour of this accused. However, admittedly, PW1 has not chosen to produce any piece of document before this court to prove his financial capacity to advance the huge loan amount of Rs.6,00,000/- to this accused.
22. The PW1 except deposing that he advanced huge loan amount of Rs.6,00,000/- to this accused by way of cash on her request, has categorically admitted that he has no documents with him to prove that he had with him a sum of Rs.6,00,000/- at his house and he advanced the said amount to this accused on her request. Likewise, PW1 except adducing the oral evidence that he is getting more than taxable income, has not chosen to prove the same by adducing documentary evidence before this court. Even according to PW1, the entire amount of Rs.6,00,000/- is an unaccounted black money.
23. PW1 has categorically stated that he advanced the loan amount without any interest to this accused and as such he has not claimed any interest on the loan amount. Even though he has denied the suggestion that as this accused has not borrowed any loan from him much less amounting to Rs.6,00,000/- she is not liable to pay the 12 CC No. 20815/2009 cheque's amount. On the contrary, admittedly, the PW1 in order to prove the loan transaction and also to prove that he had with him a huge amount of Rs.6,00,000/- and he advanced the said amount to this accused on her request, has not chosen to produce any piece of document before this court.
24. Even though the accused has admitted his Ex.P1 cheque, she has categorically denied the fact that she in order to repay the loan amount of Rs.6,00,000/- to this complainant, had issued her Ex.P1 for Rs.6,00,000/-. In such situation, the burden is heavily on this PW1 to prove the loan transaction and also to prove the existence of debt or other liability as on date of loan transaction and also to prove the issuance of cheque towards the re-payment of the loan amount. In order to prove this fact, the PW1 except adducing the oral evidence that he advanced a huge loan amount of Rs.6,00,000/- to this accused on her request, has not chosen to prove the same by adducing documentary evidence before this court that this accused had borrowed the loan from him.
25. Admittedly, the burden is heavily on this PW1 to prove that he advanced the loan amount to this accused on her request and as on date of Ex.P1 cheque there existing a legally recoverable debt or other liability on this accused and this accused by admitting her liability, 13 CC No. 20815/2009 had issued her Ex.P1 cheque towards the repayment of the loan amount. In such situation, without any evidence before this court, it is not possible to believe the testimony of PW1 that as on date of Ex.P1 cheque, there existing a legally recoverable debt on this accused and she by admitting her liability in order to discharge her liability, had issued her Ex.P1 cheque.
26. Moreover, it is not case of the Complainant he advanced loan amount to this accused in the presence of the witnesses. Even according to PW1, he advanced the huge loan amount of Rs.6,00,000/- to this accused without obtaining any document from her for the security of the huge loan amount and even he has not stated that whether any of the witnesses were present on the spot on the date of loan transaction.
27. 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.6,00,000/- to this accused without obtaining any document from her side for the security of the loan amount. The PW1 through out the proceedings has stressed upon that he advanced the loan amount to this accused by way of cash and he had with him a huge sum of Rs.6,00,000/- saved from his savings.
14 CC No. 20815/2009
28. The accused in order to prove her defence and also to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act, stepped into the witness box and got examined as DW1. She deposed that the Complainant is an utter stranger to her. She deposed that she never approached this Complainant nor she has seen him anywhere in her locality nor she has made any kind of transaction with him or with anybody during the lifetime of her deceased husband and even after his death. She deposed that she has not obtained any loan either from this Complainant or from anybody and even she has no financial difficulty to borrow loan much less amounting to Rs.6,00,000/-. She further deposed that she is getting income from the business and also receiving rental income. She deposed that she has received a notice from this Complainant on 16.7.2009 and after seeing the notice, she was shocked. She deposed that the Complainant in the notice has stated with respect to the cheque which she has lost long back and even with respect to the same, she has lodged a police complaint and therefore, immediately she has sent her reply by denying the transaction and also by denying the issuance of cheque.
29. She deposed that some of the cheque leaves were lost kept at her house when her husband was expired and many of the people were gathered to see the dead body and after sometime, she found out 15 CC No. 20815/2009 that some of the cheques were missing from the drawer and immediately after the knowledge she had given requisition to her banker on 30.12.2006 to make stop payment of the missing cheques and also lodged a complaint before concerned police station on 11.01.2007 by stating the details of the cheques numbers missing from her office and also given a complaint before the Commissioner of Police regarding missing of her cheques. She deposed that based on the application given by her, the bank made stop payment of the cheques. She deposed that at no point of time, she had issued her Ex.P1 cheque in favour of this Complainant for repayment of the loan amount of Rs.6,00,000/- and even she has not borrowed any loan from this Complainant much less amounting to Rs.6,00,000/-. DW1 prays to dismiss the complaint.
30. She got produced the Reply Notice issued by her through her Counsel in favour of this Complainant marked as Ex.D.1 along with COP Receipt marked as Ex.D.2. She got produced the endorsement issued by the Police Commissioner's office marked as Ex.D.3. She got produced certified copy of the complaint lodged by her before the Commissioner of Police regarding missing of her cheque leaves along with other signed documents on 12.1.2007 marked as Ex.D.4. She got produced the Certified Copy of the application filed by her before her banker State Bank of India, 16 CC No. 20815/2009 Malleshwaram branch, regarding stop payment of the lost cheques on 15.2.2007 as well as 30.12.2006 marked as Ex.D.5 and Ex.D6 respectively.
31. Even though the learned Counsel for the Complainant subjected DW1 for cross-examination by denying her testimony, however DW1 in her cross-examination denied the entire suggestions put to her and denied that she had borrowed a sum of Rs.6,00,000/- from this Complainant in the month of June 2008 and after receipt of the loan amount, towards repayment of the loan amount, had issued her Ex.P1 cheque for Rs.6,00,000/- in favour of PW1. DW1 in her cross-examination denied the suggestion that she has not lodged Ex.D4 complaint against this Complainant for committing theft of her cheques. Even though the Ex.D4 complaint is not lodged against this Complainant for committing theft of her cheques, however, in Ex.D4 the DW1 has clearly stated that some of her duly signed cheque leaves and duly signed blank bond paper kept in her drawer were missing and she has also given the missing cheque numbers of her cheques along with the missing cheque of her son along with the cheque number. In Ex.D4, the DW1 has clearly stated that the cheque No. 096901 was also missing along with other cheque numbers and other duly signed blank papers and bond papers.
17 CC No. 20815/2009
32. Admittedly, the Ex.D4 document was lodged by this DW1 on 12.1.2007 much earlier to the date of alleged loan transaction disclosed in Ex.P5 complaint. Likewise, the DW1 also got produced the application filed by her before her banker for making stop payment of the cheques as the same were missing from her house marked as Ex.D.5 and Ex.D6 and even in Ex.D5 she has clearly disclosed the cheque number relating to this case as 096901 and she made stop payment of the cheque by filing this application on 15.2.2007 itself. These documents were not denied by the Complainant. The Complainant neither denied the lodging of Ex.D4 complaint before the Commissioner of Police nor he has denied the filing of application as per Ex.D5 and Ex.D6 before her banker State Bank of India for making stop payment of the cheques amount on 15.2.2007 and 30.12.2006. No doubt, the Complainant during the cross- examination of DW1, put a suggestion to her that she intentionally with an intention to ran away from her liability to pay the cheque amount, has created Ex.D4 to Ex.D6 documents and produced the same before this court. However, DW1 has categorically denied the entire suggestions put to her and denied that she with an intention to ran away from her liability, has created the documents and filed the same before this court.
18 CC No. 20815/2009
33. The Complainant except putting some suggestion to DW1 that she had issued her Ex.P1 cheque in favour of this Complainant towards the repayment of the loan amount of Rs.6,00,000/- which has been categorically denied by DW1, nothing has been elicited from her mouth to disbelieve her testimony and to discard her documentary evidence.
34. As I have discussed supra, the Ex.D4 to Ex.D6 documents falsify the entire case of the Complainant and also rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. After this accused led her evidence before this court, the Complainant has not chosen to adduce his rebuttal evidence before this court to prove his financial capacity to advance the huge loan amount of Rs.6,00,000/- and even he has not produced documents to prove that as on date of Ex.P1 cheque, he had with him a huge amount of Rs.6,00,000/- and he advanced the said amount to this accused on her request as a loan.
35. As I have discussed supra, the Complainant during the cross-examination of DW1, except putting suggestions to her that she had issued her Ex.P1 cheque towards repayment of the loan amount after receipt of the loan amount of Rs.6,00,000/-, which has been categorically denied by DW1, nothing has been elicited from her 19 CC No. 20815/2009 mouth to disbelieve her testimony or to discard her evidence. As I have discussed supra, the initial burden is always on this Complainant to prove the existence of debt or liability as on date of Ex.P1 cheque on this accused and to prove that the accused by admitting her liability in order to discharge her liability, had issued her Ex.P1 cheque.
36. As I have discussed supra, the Complainant in order to prove this fact, except adducing the oral evidence that he advanced the huge loan amount of Rs.6,00,000/- to this accused and this accused towards repayment of the loan amount, had issued Ex.P1 cheque, has not chosen to prove the same to the satisfaction of the court.
37. There is nothing on record to disbelieve the testimony of DW1 or to discard her evidence. As I have discussed supra, the initial burden is always on this Complainant to prove the existence of debt or liability as on date of Ex.P1 cheque on this accused and to prove that the accused by admitting her liability in order to discharge her liability, had issued her Ex.P1 cheque.
38. As I have discussed supra, the Complainant without obtaining any documents from this accused and even without insisting this accused to execute documents in his favour for the huge loan amount of Rs.6,00,000/-, had stated that he advanced the huge loan 20 CC No. 20815/2009 amount of Rs.6,00,000/- to this accused on her request, cannot be believable and acceptable.
39. The Complainant except adducing the oral evidence that he had advanced a huge loan amount of Rs.6,00,000/- to this Accused, has not chosen to prove the same to the satisfaction of the court. It is well settled principle of law that the 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 to the satisfaction of the court and to prove that he had the financial capacity to advance the huge amount of Rs.6,00,000/- to this Accused.
40. Here in this case, the Complainant except adducing the oral evidence that he had advanced the huge loan amount of Rs.6,00,000/- to this accused and towards the repayment of the loan amount, the Accused had issued Ex.P.1 cheque, has miserably failed to prove his case to the satisfaction of the court. The Complainant has utterly failed to prove the existence of legally recoverable debt or other liability on this Accused as on date of Ex.P.1 cheque.
41. As I have discussed supra, the Complainant except adducing the oral evidence, has totally failed to prove his case by adducing 21 CC No. 20815/2009 documentary evidence before this court to the satisfaction of the court. The accused has also sent her reply immediately after receipt of the Ex.P3 notice as per Ex.D1 and she got produced Ex.D2 document before this court to prove that she has sent the reply notice to the advocate of this Complainant through UCP and the same was served on him. Even in the Reply Notice marked as Ex.D.1 the accused has clearly taken up the defence that on 11.1.2007 itself she has lodged the complaint before the Commissioner of Police for missing and lost of her cheques and therefore, issuing the Ex.P1 cheque in the month of December 2008 towards the repayment loan amount of Rs.6,00,000/- issued her cheque does not arise. These facts were not denied by the Complainant.
42. On the contrary, the learned Counsel for the accused has vehemently argued that there is no burden on this Accused to prove her defence beyond all reasonable doubts and this accused can very well discharge her burden by preponderance of probabilities and even by cross-examining PW1 and this Accused by cross-examining PW1 and also by leading her evidence before this court and also by producing and marking Ex.D1 to Ex.D6 documents, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act, is fully convinced this court. Likewise, his arguments that the entire burden is on this Complainant to prove his financial capacity to 22 CC No. 20815/2009 advance the huge loan amount of Rs.6,00,000/- and to prove that this Complainant had the financial capacity to advance the huge loan amount of Rs.6,00,000/- to this accused and this Complainant has totally failed to prove this fact by adducing convincing evidence before this court, is convinced this court.
43. His further arguments that the Complainant has totally failed to prove that as on date of Ex.P1 cheque, there existing a legally dischargeable debt or other liability on this accused and she by admitting her liability, had issued her Ex.P1 cheque and the same was bounced. He argued that as on date of Ex.P1 cheque, there is no existence of legally dischargeable debt. His arguments is fully convinced this court and therefore, it is accepted.
44. 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 she has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act. The accused by producing Ex.D3 to Ex.D6 documents, clearly proved that in the month of February 2007 itself she has initiated proceedings against missing of her cheques leaves from her house and with respect to the same, she lodged the police complaint before the Commissioner of Police and she has also given 23 CC No. 20815/2009 application before her banker as per Ex.D5 to make stop payment of the cheques relating to the cheques' numbers disclosed in the application as the same were missing and lost. In such situation, the case of the Complainant that the accused after receipt of the loan amount of Rs.6,00,000/- towards repayment of the loan amount, had issued her Ex.P1 cheque in the month of December 2008 for a sum of Rs.6,00,000/-, cannot be believable and acceptable.
45. Moreover, it is not the case of the Complainant that the accused after thought with an intention to deceive him, had issued her Ex.P1 cheque prior to the year 2007 and subsequently, in the year 2007 she has lodged the false police complaint as per Ex.D4 and also given false application before her banker as per Ex.D5 and Ex.D6. Admittedly, no such contention taken by this Complainant either in his complaint averments or in his evidence and even after this accused was led her evidence, the Complainant has not chosen to lead his rebuttal evidence. In such situation, the arguments canvassed by the learned Counsel for the Complainant that the accused only with an intention to ran away from her liability to pay the cheque amount, has created and concocted the documents marked as Ex.D.1 to Ex.D6 and filed the same before this court, cannot be acceptable and it holds no merit.
24 CC No. 20815/2009
46. Likewise, the learned Counsel for the Complainant has vehemently argued that the Complainant before filing of this complaint, has followed all the procedures prescribed u/Sec.138 of N.I. Act and this Accused even after receipt of the Legal Notice, has neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction and in such situation, an adverse inference has to be drawn against this accused that she after admitting the contents of the notice and also by admitting the issuance of cheque towards repayment of the loan amount, issued her Ex.P1 cheque and her cheque was bounced and therefore she has not resisted the claim of the Complainant, cannot be acceptable and it holds no merit. Admittedly, the accused immediately after receipt of ExP3 notice sent her Ex.D1 reply through COP as per Ex.D2 and the same was served on the Advocate of this Complainant. In such situation, his arguments that the accused after receipt of the Legal Notice, has neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction, cannot be acceptable and it holds no merit. Likewise, his further arguments that the accused during the stage of trial, only for the sake of defence, has taken up the false defence that her blank cheque leaves and other duly signed blank documents were missing and lost from her house, is also not convinced this court and it holds no merit. His arguments that the 25 CC No. 20815/2009 accused mere taking a defence and denial of issuance of cheque, is itself is not sufficient to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act and by considering all these facts, the accused has to be convicted in accordance with law, is not convinced this court and it cannot be acceptable.
47. As I have discussed supra, the Complainant has utterly failed to prove his case and to prove that this Accused has committed an offence punishable u/Sec.138 of N.I. Act. The oral and documentary evidence adduced before this court by the Complainant is not sufficient and convincing to bring home the guilt of the Accused beyond all reasonable doubts. 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 initial burden, no burden will shift on this Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I Act. The Complainant has utterly failed to prove that the 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 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.
26 CC No. 20815/2009
48. 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/s.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 her is verified and then pronounced by me in the Open Court on this the 16th day of August, 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bengaluru. ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. E. Hanumantha Rao Witnesses examined on behalf of the Accused: D.W.1 Mrs. Aruna K. 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 Legal Notice Ex.P.4 Postal Acknowledgement Ex.P.5 Complaint Ex.P.5(a) Signature of the Complainant 27 CC No. 20815/2009 Documents marked on behalf of the Accused: Ex.D1 Reply Notice Ex.D2 COP Receipt Ex.D3 Endorsement issued by the Police Commissioner's office Ex.D4 Certified copy of the complaint lodged before the Commissioner of Police Ex.D5 & Ex.D6 Certified Copies of the applications filed before the banker XIX ACMM, B'lore. 28 CC No. 20815/2009