Bangalore District Court
Sri.Ravindra Prasad K vs Smt. Jayalakshmi on 27 August, 2016
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 27th day of August 2016
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.12236/2014
Complainant : Sri.Ravindra Prasad K,
S/o. Late Kalappa,
Aged about 46 years,
R/at No.21/1,
Manjunatha Nilaya,
Neharu Road,
New Guddadhahalli,
Mysore Road,
Bengaluru-26.
(Rep. by
Sri.K.V.Sathyanarayana., Adv.,)
[
- Vs -
Accused : Smt. Jayalakshmi
W/o. Gangappa,
Aged about 50 years,
R/at.No.6/1,
Nagasandra Cross,
Netaji Road,
T.R.Nagar,
Bengaluru-28.
(Rep. by Sri.V.Vijaya Shekara
Gowda., Adv.,)
2 C.C. No.12236/2014
Case instituted : 7.6.2013
Offence complained : U/s 138 of the N.I.Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 27.8.2016
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, Accused and he are friends from several years. Hence she has good acquaintance with him. Taking undue advantage of her acquaintance with him, during the second week of January 2011, the Accused approached him for a sum of Rs.10,00,000/- to meet her immediate domestic and legal necessities. As such, believing the words of the Accused, he was having some funds with him and taking hand loan from his friends and he arranged a sum of Rs.3,00,000/- and paid the same to the Accused by way of cash during the second week of 3 C.C. No.12236/2014 February 2011, Rs.5,00,000/- was paid by him to the Accused by way of cash during the second week of March 2011 and Rs.2,00,000/- during the second week of December 2012 and in total, he has paid a sum of Rs.10,00,000/- to the Accused.
3. It is further submitted by the Complainant that, at the time of borrowing the said amount, the Accused has executed a payment receipt and promised him to return the borrowed amount within a short period. However even after the lapse of several months, she has failed to repay the said amount and therefore he requested her and demanded for the repayment of the amount of Rs.10,00,000/-. But she Accused went on postponing the same on pretext or the other. Thereafter instead of making the payment in cash, she issued cheque bearing No.740291 dated 10.3.2013, for a sum of Rs.5,00,000/- and cheque bearing No.740292 dated 20.2.2013 for a sum of Rs.5,00,000/-, both the cheques drawn on the Canara Bank, D.V.G.Road Branch, Bengaluru and instructed him to present the said cheques for encashment assuring that they would be honoured.
4 C.C. No.12236/20144. It is further submitted by the Complainant that, as per the instructions of the Accused, when he presented both the cheques for encashment on 26.3.2013 through his Banker, to his utter shock and surprise, both the cheques got dishonoured for the reason "Account Closed" on 28.3.2013. Therefore being aggrieved by the dishonour of the said cheques, he immediately approached the Accused and intimated her about the same, but it has not yielded any result. Therefore left with no other alternative he got issued a legal demand notice to the Accused by RPAD, calling upon her to repay the amounts covered under the cheques on 26.4.2013. However the said legal notice came to be returned with shara " Door Locked, Returned to sender". Inspite of the deemed service of the notice, the Accused has failed to comply with the demand made in the notice.
5. Therefore the Complainant submits that, the dishonour of the cheques by the Accused has been malafide and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that the Accused be summoned, tried and 5 C.C. No.12236/2014 punished in accordance with Sec.138 of the Negotiable Instruments Act.
6. The pre-summoning evidence was led by the Complainant on 13.5.2014. Prima-facie case was made out against the Accused and she was summoned vide order of the same date.
7. The Accused appeared before the Court on 29.11.2014, the substance of the accusation has been read over to her on 20.1.2015, she has pleaded not guilty and claimed the trial.
8. In his post-summoning evidence, the Complainant examined himself as PW1 and filed his affidavit, wherein he has reiterated the averments made in the complaint.
P.W.1 has also relied upon the following documentary evidence:-
Ex.P1 & 2 are the Bank challans respectively, Ex.P2 & 3 are the disputed cheques respectively, in which, the signatures are identified by P.W.1 as those of the Accused as per Ex.P2(a) Ex.P3(a) respectively, the Bank memo as per Ex.P5, the office copy of the legal notice as 6 C.C. No.12236/2014 per Ex.P6, the postal receipt as per Ex.P7, the postal acknowledgement as per Ex.P8, the on demand Pronotes and the Consideration receipts as per Ex.P9 & 10 respectively, the Signatures of the Accused in them as per Ex.P9(a), Ex.P9(b), Ex.P10(a) & Ex.P10(b) respectively, the cash receipt as per Ex.P11, the signature of the Accused as per Ex.P11(a), the Pass Book as per Ex.P12, the Pigmy Entry Books as per Ex.P13 & 14 respectively, the pay slips as per Ex.P15 & 16 respectively and the complaint as per Ex.P17.
9. The statement of the Accused under Sec.313 of Cr.P.C., has been recorded on 29.12.2015.
10. In Defence evidence, the Accused examined herself on Oath under Sec.315 of Cr.P.C., as DW1.
11. In her evidence, DW1 has deposed that, the Complainant is her cousin brother. She has two sons and two daughters and that her husband is alive and her children are married. Her husband served in the Mujrai department and retired and he is getting monthly pension and both her sons are working in the software company and they are residing together in a joint family 7 C.C. No.12236/2014 and her sons are looking after the family affairs. She has further deposed that, she is not working and she has no independent source of income and that her children meet her expenses.
12. It is further deposed by DW1 that, she had put two chits of Rs.50,000/- each, with the Complainant, towards which, she was paying Rs.5,000/- per month to him and she took bid the said two chits by leaving Rs.10,000/- and at that time, the Complainant took her two blank cheques, towards security, for the chit amount along with her two blank pronotes and a blank stamped white paper on which, he obtained her signatures and that she has not filled up the contents of the cheques in question in English language. It is further deposed by DW1 that, she has not written the date, month and the amount and also the contents of the pronotes and the receipt and that the signatures of the biclam in Ex.P9 & 10 as well as the signatures of the witnesses at Ex.P11 have not been obtained in her presence and that she has not availed any loan of Rs.10,00,000/- from the Complainant in January 2011 as alleged by him and that he has not lent any amount of Rs.10,000,000/- by way of 3 installments as alleged by him and similarly she has 8 C.C. No.12236/2014 not executed either the pronotes or the receipts or the disputed cheques, after allegedly receiving Rs.10,00,000/- from the Complainant.
13. DW1 has further deposed that, she has not received any legal notice from the Complainant and that, she is residing in a house which the ancestral property of her husband since 15 to 20 years, to which address all the posts will be delivered. Thus on these grounds, she has denied the entire case as alleged by the Complainant.
14. DW1 has been cross-examined at length by the learned counsel for the Complainant. During her cross- examination, it is admitted by the Accused that she knows the Complainant since her childhood, as he is her relative. However she has denied that, she has deposed falsely that her husband is getting a monthly pension having retired from the Mujrai department. According to her, her husband is getting a monthly pension of Rs.15,000/-, though she has admitted that, she has not produced any documents to prove the same. Further she has deposed that, her two sons would pay her Rs.5,000/- each, out of which, she spends around Rs.500/- to 1000/- towards her personal expenses and the remaining 9 C.C. No.12236/2014 amount for the other purposes. It is also admitted by DW1 that, the cheques at Ex.P1, 3 & 4 relates to her account and that she knows to sign in English language and that the signatures on the disputed cheques are her signatures and the signatures and the LTMs on the cheques at Ex.P9 to Ex.P11 belong to her.
15. With regard to the documentary evidence, in respect of the chit transaction with the Complainant as claimed by her, DW1 has answered that, she has not produced any documents to prove the same, since the Complainant has not issued any documents to her. Moreover according to DW1, the Complainant has taken her signatures on the blank documents and in turn he has not given any document to her. Further with regard to the documentary proof to show that, she was paying the monthly subscription amount towards the chit, the explanation given by DW1 is that, she had become a member to the chit transaction with the Complainant as she had trust in him, being her relative. No doubt it is elicited from the mouth of DW1 that, she has not issued any notice to the Complainant seeking return of her cheques and she has also not taken any action against the Complainant alleging the non-return of her cheques 10 C.C. No.12236/2014 by him, the explanation given by DW1 in this regard is that, the Complainant being her relative, she has not taken any action against him. Thus it could be seen that D.W.1 has denied all the suggestions put to her in respect of Ex.P9 to 11.
16. Final arguments are advanced at length by the learned counsel for the Complainant and the learned counsel for the Accused.
17. The counsel for the Complainant has also submitted his written arguments.
18. In his written arguments, the learned counsel for the Complainant has prayed for the conviction of the Accused on the ground that, the issuance of the cheques as well as the signatures of the Accused on the cheques is admitted by the Accused both in her evidence and also in the cross-examination of the Complainant. It is further argued that, the Accused has admitted the address stated in the legal notice at Ex.P6 to 8 and also in the cause title of the Complaint. The Accused has not produced any documentary evidence in order to prove the alleged chit transaction by her with the Complainant and 11 C.C. No.12236/2014 knowing fully well that, her Bank account was closed the Accused has issued the cheques in question and also intentionally avoided the service of the notice. Hence on these grounds prayed to convict the Accused for the offence punishable under Sec.138 of the N.I. Act.
19. On the other hand, the learned counsel for the Accused has prayed for the acquittal of the Accused on the ground that, the Accused has never taken any loan from the Complainant and that she, being a senior citizen of more than 70 years old was never in need of a huge sum of money as Rs.10,00,000/- and her family is financially well settled and as such there was no necessity for the Accused to allegedly avail a loan of Rs.10,00,000/- from the Complainant. It is also argued that, the Complainant has failed to establish his financial capacity before the Court and as such the Accused has probabalised her defence before the Court.
20. I have considered the submissions and perused the record carefully.
12 C.C. No.12236/201421. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of notice under the proviso (b) to Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
22. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-13 C.C. No.12236/2014
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
23. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
24. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
25. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
26. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to 14 C.C. No.12236/2014 rebut the presumptions in favour of the Complainant in this case.
27. The first defence raised by the Accused is with regard to the financial capacity of the Complainant so as to allegedly lend a sum of Rs.10,00,000/- to the Accused.
28. In this regard it is pertinent to note that, as per the complaint averments it is stated by the Complainant that the Accused is his friend since several years and she approached him during the second week of January 2011 for a sum of Rs.10,00,000/- to meet her immediate domestic and legal necessities. At that time, he was having some funds with him and he took some hand loan from his friends and arranged a sum of Rs.3,00,000/- and paid the same to the Accused by way of cash during the second week of February 2011 and similarly a sum of Rs.5,00,000/- during the second week of March 2011 and Rs.2,00,000/- during the second week of December 2012. Thus it is the claim of the Complainant that starting from February 2011 upto December 2012, he has lent a total amount of Rs.10,00,000/- to the Accused by way of 3 installments and according to him at that 15 C.C. No.12236/2014 time, the Accused has executed the payment receipt and promised to return the said amount within a short time. In this regard during his cross-examination, PW1 has come up with a version that, the Accused is not his friend, but his relative and that he is working as a Scanner operator in Prajavani with a monthly salary of Rs.40,000/- and according to him, as he took the amount from the finance and lent the same to the Accused, it is not necessary to disclose the same in his IT returns. Further he has also claimed that he has lent the amount to the Accused, he in turn by availing loan. If this version of the Complainant is to be believed, then a serious question arises as to what was the necessity for the Complainant to avail loan in his name for the purpose of lending the same to the Accused, as the latter is neither his family member nor his close relative. Further it is elicited from the mouth of PW1 that, on the date of his alleged lending of loan to the Accused i.e., on 9.2.2011, there was a balance amount of Rs.6,90,433/- in his account as per Ex.P12, inspite of it, what made him to lend the loan to the Accused by way of cash instead of by way of cheque. In this regard the answer given by PW1 is that, the Accused had sought for the 16 C.C. No.12236/2014 loan amount to be paid by way of cash. Further with regard to the withdrawal of Rs.2,00,000/- on 10.2.2011 and Rs.1,00,000/- on 11.2.2011, which are evident in the entries at Ex.P12, the explanation given by PW1 is that, it was made for his personal purpose, but subsequently he has stated that, he has taken that amount for the purpose of arranging Rs.10,00,000/- to be paid to the Accused. However it is pertinent to note that, if at all this version of PW1 is to be believed, then the burden is upon him to show that in addition to this amount of Rs.2,00,000/- withdrawn from his account, from where he adjusted the balance amount of Rs.2,00,000/- since according to him at the first instance he paid Rs.3,00,000/- to the Accused and Rs.5,00,000/- during the second week of March 2011. In this regard there is no single piece of evidence made available by the Complainant before the Court.
29. In this regard, the inconsistent stands taken by the Complainant in his complaint and during his cross- examination with regard to the mode in which he claims to have arranged a sum of Rs.10,00,000/- is also highly unbelievable, as at no stretch of imagination it is possible to imagine that a person would lend loan to the another, 17 C.C. No.12236/2014 he in turn availing loan from some other source except if the borrower is his kith or kin.
30. The next defence raised by the Accused is that, though the signatures on the cheques at Ex.P3 & 4, the pronotes at Ex.P9 & 10 are the receipt at Ex.P11 are admitted by the Accused as belonging to her, the said documents were not issued by her to the Complainant towards the discharge of any legally enforceable debt, but they were issued as signed, blank documents only towards security, in respect of a chit transaction with the Complainant by her.
31. In this regard, no doubt, the Accused has admitted her signatures on all these documents. But with regard to the over-writing in respect of the month in Ex.P3, when it is suggested to PW1 that, the month has been over written in Ex.P3, he has answered that, the same has been done by the Accused. If this were to be a fact, then nothing prevented the Complainant from obtaining a small signature or an initial of the Accused, in respect of such over-writing on the month in Ex.P3. Therefore this is also raises a serious doubt in the claim of the Complainant.
18 C.C. No.12236/201432. Now coming to another serious contradiction in the case of the Complainant, that according to the complaint averments, the Accused has executed a payment receipt at the time of the borrowing of the amounts by her from the Complainant. According to him, even after the lapse of several months, the Accused failed to repay the borrowed amount and after his repeated requests and demands, instead of making the payment in cash, she has issued the cheques in question to him. However quite contrary to what is stated by the Complainant in his chief-evidence, during his cross- examination, PW1 has deposed that, the Accused has issued the cheques on the last date of payments by him and on the same occasion she has issued a pronote to him. However PW1 has denied that, he has taken the blank cheques, blank on demand pronotes and blank cash receipt from the Accused at the time of her taking the bid amount from him in respect of the chit transaction. If this claim of the Complainant in this regard is to be believed, then the once again the burden is shifted to the Complainant to prove before the Court, as to when the Accused has issued both these pronotes 19 C.C. No.12236/2014 to him. But the Complainant has utterly failed to discharge the onus which has been shifted upon him.
33. Further with regard to the contents of the on demand pronotes at Ex.P9 & 10, this Court could observe one more fact that, there is a recital with regard to the payment of interest at the rate of 1% per month for Rs.5,00,000/- and Rs.3,00,000/- respectively in Ex.P9 &
10. But neither in the legal notice nor in the complaint nor in his affidavit, has the Complainant pleaded anything about the interest alleged to have been agreed to be paid by the Accused. Similarly the Complainant has failed to examine any of the witnesses who have signed on the on demand pronotes and the consideration receipts at Ex.P9 & 10 or on the cash receipt at Ex.P11.
34. The next defence taken by the Accused is with regard to the non-service of the legal notice.
35. During the cross-examination of PW1, it is generally suggested to him that, there is no service of legal notice on the Accused and that he has colluded with the postal authorities to see that the said legal notice is 20 C.C. No.12236/2014 not served upon the Accused but, this suggestion has been denied by PW1.
36. Even during her evidence before the Court, the Accused has stated that, she is residing in a house which is the ancestral property of her husband since 15 to 20 years and all the postal letters will be served to the said address, but according to her she has not received legal notice from the Complainant.
37. In this regard, during her cross-examination DW1 has stated that, her residential address is Door No.6/1, Nagasandra Cross, Netaji Road, T.R.Nagar, Bengaluru and she has admitted that, the same address is mentioned in the cause title of the complaint and also in the legal notice at Ex.P6 and the un-served postal cover sent by RPAD. It is pertinent to note that, even though the Accused has denied the service of the legal notice upon her, the postal endorsement at Ex.P3 shows that, the same has been returned with a shara "Door locked, the intimation delivered". Therefore it could be seen that, even though there is deemed service of the legal notice, the Accused has taken up a technical defence alleging the non-service of the legal notice upon 21 C.C. No.12236/2014 her. Therefore this defence is also not available to the Accused.
38. Thus by considering the overall evidence placed on record by the Complainant, it goes to show that, the Complainant has utterly failed to prove beyond reasonable doubt his alleged lending of Rs.10,00,000/- to the Accused. Moreover according to the Complainant though he has allegedly lent Rs.8,00,000/- to the Accused in February and March 2011, he has allegedly paid Rs.2,00,000/- after a span of 22 months i.e., in December 2012. This also raises a serious doubt about the case of the Complainant, since even if it is believed that, the Complainant could have lent Rs.8,00,000/- to the Accused in February and March 2011, why he has paid Rs.2,00,000/- after a gap of 22 months. Moreover the Complainant has not placed any material on record in order to show as to how he has arranged such huge amount of money. In this regard he has taken total inconsistent stands about the manner in which he arranged the said amount. Therefore by careful appreciation of the evidence on record, it clearly goes to show that, the Complainant has failed to prove the alleged transaction beyond reasonable doubt.
22 C.C. No.12236/201439. In support of his arguments, the learned counsel for the Complainant has relied upon the following decision:-
1. In C.C.Alavi Haji Vs., Palapetty Muhammed & Anr, reported in 2007 AIR SCW 3578,
40. On the other hand the learned counsel for the Accused has relied upon the following decisions:-
1. In K.Subramani Vs., K.Damodara Naidu, reported in (2015) I SCC 99,
2. In Sri.H.Manjunath Vs., Sri.A.M.Basavaraju, reported in ILR 2014 KAR 6572.
41. It is a well settled principle of law that, the burden of proof required to be discharged by the Accused is not the same as that which is expected from the Complainant. Therefore this Court is of the view that, the defences raised by the Accused are probable and 23 C.C. No.12236/2014 sufficient so as to rebut the presumptions in favour of the Complainant. Accordingly I proceed to pass the following:-
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act.
Her bail bond and surety bond stands cancelled.
(Dictated to the stenographer, transcript thereof is computerized and printout taken by her, verified, and then pronounced by me in the open Court on this the 27th day of August 2016).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:
PW.1 : Ravindraprasad.K
2. List of documents exhibited on behalf of the Complainant:
Ex.P-1 & 2 : Bank challans;
24 C.C. No.12236/2014
Ex.P-3 & 4 : Original cheques;
Ex.P-3(a) & : Signatures of the Accused;;
4(a) Ex.P-5 : Bank memo;
Ex.P-6 : Copy of the Legal Notice;
Ex.P-7 : Postal receipt;
Ex.P-8 : Postal acknowledgement;
Ex.P-9 & 10 : On Demand pronotes & Consideration
receipts;
Ex.P-9(a)(b) & Signatures of the Accused;
10(a)(b) Ex.P11 : Cash receipt; Ex.P11(a) : Signature of the Accused; Ex.P12 : Pass Book; Ex.P13 & 14 : Pigmy Entry Books; Ex.P15 & 16 : Pay slips; Ex.P17 : Complaint.
3. List of witnesses examined on behalf of the Accused:
DW-1 : Jayalakshmi
4. List of documents exhibited on behalf of the Accused:
- Nil -
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.25 C.C. No.12236/2014
27.08.2016 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of Negotiable Instruments Act.
His bail bond and surety bond stands cancelled.
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.