Bangalore District Court
B.Nagalakshmamma vs Sushma Shree Heggade.D on 7 December, 2016
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 7th day of December - 2016
PRESENT: SRI. S.G.SALAGARE, B.Sc., LL.B.,(Spl)
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.23464/2014
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : B.Nagalakshmamma,
W/o.C.Doddaiah,
Aged about 56 years,
R/at. No.2628/79, 6th 'A' Main,
RPC Layout, Vijayanagar 2nd Stage,
Bengaluru-40.
(Rep. by Sri.A.N.Srimantharaje Urs,
Advocate)
V/S
Accused : Sushma Shree Heggade.D,
W/o.Nataraju.M.C,
Aged about 30 years,
R/o Opp.to Ex Counsellor
Channapatna, 12th Main,
1st Cross, Ramanagar District,
Channapatna.
Also at:
Sushma Shree Heggade.D,
No.39/40, HP Company,
Hamlet Packard Global,
Software Ltd., Electronic City,
Bengaluru-560 100.
(Rep.by Sri.Kumar & Bhat, Advocates)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.23464/2014
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 07.12.2016.
(S.G.SALAGARE)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
This complaint is filed by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as under:
Complainant and accused are knew each other from 4 to 5 years and they are residents of same village. During the 1st week of September, 2013 accused approached the complainant and requested for hand loan of Rs.10 lakhs to meet her personal commitments, and taken hand loan of Rs.10 lakhs from the complainant on 20.09.2013, and accused promised to repay the said amount within six months. In the 2nd week of March, 2014, complainant demanded for return of amount, and in order to repay the borrowed amount, accused has issued a cheque bearing No.485478, dated:22.03.2014 drawn for Rs.10 lakhs drawn Judgment 3 C.C.23464/2014 on IndusInd Bank, Thippasandra Branch, Bengaluru in favour of complainant and requested her not to present the said cheque on the particular day and again asked three months time.
It is further case of complainant that, as per instructions of accused, the complainant has presented the said cheque through her banker viz., Bank of India, RPC Layout Branch, Bengaluru for collection. On 03.06.2014, the said cheque was returned unpaid for the reasons "Funds Insufficient" in the account maintained by accused. On 24.06.2014, the complainant brought this fact to the knowledge of accused by issuing demand notice through RPAD to the residential address as well as office address of accused, but the accused has not claimed the demand notice. Even after grace period of 15 days from the date of return of notice accused has neither paid the cheque amount nor replied the notice. Hence, the complainant has filed the complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act and prayed to punish the accused with Judgment 4 C.C.23464/2014 maximum sentence and to award compensation to the complainant.
3. My predecessor after perusing records, took cognizance of offence, and recorded sworn statement, ordered to register Criminal Case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused after service of summons put her appearance through her counsel and has been enlarged on bail. Thereafter, the court has recorded the plea of accused and the accused has pleaded not guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4. The complainant in order to prove her case, got examined herself as PW-1 and got marked ten documents at Exs.P1 to P10 and closed her side. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under Section 313 of Cr.P.C., the accused denied all the incriminating evidence arisen against her. The accused in order to disprove the case of complainant got examined Judgment 5 C.C.23464/2014 herself as DW.1 and got marked nine documents at Exs.D1 to D9 and closed her side.
5. I have heard the arguments of both side counsels and perused the materials placed on record.
6. The following points would arise for my consideration:
1) Whether the complainant proves beyond all reasonable doubt that, she had advanced Rs.10 lakhs hand loan to the accused and Ex.P1 -
cheque bearing No.485478, dated:22.03.2014 drawn for Rs.10 lakhs drawn on IndusInd Bank, Thippasandra Branch, Bengaluru is issued in favour of complainant for discharge of the said amount, and on its presentation, cheque came to be dishonoured for the reasons 'Funds Insufficient' and even after service of notice, the accused has failed to repay the amount and thereby accused is guilty of the offence punishable under Section 138 of N.I.Act?
2) What Order?
7. My findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : As per final order, for the following:Judgment 6 C.C.23464/2014
REASONS
8. POINT NO.1: It is alleged that, the accused had borrowed an amount of Rs.10 lakhs from complainant, and to discharge her liability has issued a cheque bearing No.485478, dated:22.03.2014 drawn for Rs.10 lakhs drawn on IndusInd Bank, Thippasandra Branch, Bengaluru in favour of complainant. When said cheque was presented for encashment, same was dishonoured for the reasons 'Funds Insufficient' in the account maintained by the accused. Even after issuance of demand notice, accused has not made any arrangement for return of cheque amount. The accused has denied the accusation made against her.
9. To prove her case, the complainant got examined herself as PW.1 by filing her affidavit in lieu of her examination in chief evidence. In the affidavit, PW.1 has reiterated the averments made in the complaint and in support of her contention; PW.1 has got marked ten documents. Among them cheque bearing No.485478, dated:22.03.2014 drawn for Rs.10 lakhs is marked as Ex.P1. The said cheque is drawn on IndusInd Bank, Judgment 7 C.C.23464/2014 Thippasandra Branch, Bengaluru in favour of complainant. The signature of accused is marked as Ex.P1(a), Ex.P2 is the Bank Endorsement issued by the Bank of India, the contents of Ex.P2 disclose that, cheque bearing No.485478, drawn for Rs.10 lakhs returned unpaid for the reasons 'Funds Insufficient' in the account maintained by the accused, Ex.P3 is the letter dated:17.06.2014 issued by the Bank of India in favour of complainant, Ex.P4 is the Demand Notice dated:24.06.2014, the recitals of Ex.P4 disclose that, the complainant has issued this notice to the accused through her counsel. By issuing this notice complainant called upon the accused to repay the cheque amount of Rs.10 lakhs within 15 days from the date of receipt of notice. Exs.P5 and P6 are the Postal Receipts, and Exs.P7 and P8 are the unserved postal covers, Ex.P9 is the Certified copy of Sale Deed dated:11.08.2011 executed by B.Nagalakshmamma (complainant herein) in favour of H.V.Somashekar and S.Veena and Ex.P10 is the bank account pass book pertaining to complainant bank account issued by the State Bank of Mysore, Channapatna Branch. In order to substantiate her contention, accused got Judgment 8 C.C.23464/2014 examined herself as DW.1 and in support of her case got marked nine documents at Exs.D1 to D9.
10. In the cross-examination of PW.1 and also in the defence evidence accused has taken defence that, her husband Nataraj and complainant colluded with each other and filled up the cheque, forged her signature and lodged this false complaint to harass her. Off course this defence of accused is denied by complainant. When accused has denied her signature on the disputed cheque, then the burden lies of the complainant to prove that accused has signed Ex.P1 as per Ex.P1(a).
At this stage this court has gone through the decision reported in AIR 2010 SC 1898 between Rangappa V/s. Mohan, the Hon'ble Apex court is held that:
"The presumption mandated by section 139 of the Act is in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in Judgment 9 C.C.23464/2014 furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted Judgment 10 C.C.23464/2014 by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
11. The principle laid down in the above decision by the Hon'ble Supreme Court is that, if accused admits the cheque and her signature then burden lies on the accused to rebut the presumptions arisen in favour of complainant under Section 118(a) and 139 of Negotiable Instruments Act. In the present case accused admitted that Ex.P1 cheque belongs to her, but she denied her signature marked at Ex.P1(a). Therefore, the principle laid down in the above case is not applicable to case on hand. Complainant has to prove the existence of legally recoverable debt i.e., complainant has to prove that, she has paid Rs.10 lakhs to accused on 20.09.2013. In the cross-examination accused has denied the capacity of complainant to lend Rs.10 lakhs to her.
12. In the cross-examination of PW.1 and in defence evidence, accused has taken defence that, there is no any acquaintance between herself and complainant, she has not borrowed an amount of Rs.10 lakhs from complainant Judgment 11 C.C.23464/2014 and she has not issued Ex.P1 cheque in favour of complainant for discharge of alleged Rs.10 lakhs. Accused taken defence that, after the marriage herself and her husband were cordial till January, 2013 and thereafter the relationship between herself and her husband was strained. When accused and her husband staying together, at that time her husband had taken two cheque leaves and colluding with complainant and another person got registered false case against her for the offence punishable under Section 138 of Negotiable Instruments Act.
13. To substantiate her defence accused has produced the copy of complaint lodged before the Jayanagar Police Station marked at Ex.D1 and acknowledgment for having lodged the complaint marked at Ex.D2, and the statement given by her husband before police marked at Ex.D3. Accused has also lodged complaint against her husband under Section 12(1) of Protection of Women from Domestic Violence Act, 2005. Complainant has also produced the acknowledgment issued by Ulsoor Gate Police Station. The recitals of Ex.D1 to D4 and D9 disclose that, there is no cordial relationship between accused and her husband. But, by mere production of Exs.D1 to D4 and D9 cannot Judgment 12 C.C.23464/2014 prove that, the relationship of accused and her husband is strained and they are staying separately.
14. In the present case complainant approached this court alleging that, accused borrowed Rs.10 lakhs and issued cheque Ex.P1 for discharge of her liability. Accused has denied the execution of cheque in favour of complainant. Therefore burden is on the complainant to prove the existence of legally recoverable debt i.e., complainant has to prove that she has paid Rs.10 lakhs to accused on 20.09.2013. When the accused questioned the complainant from where she collected the money and paid to accused, complainant stated that she sold her site for Rs.8,40,000/- and also sold her golden ornaments for Rs.3,40,000/- and paid to accused. To this effect complainant has produced the certified copy of sale deed marked at Ex.P9. The recitals of Ex.P9 disclose that, complainant has sold her site on 11.08.2011 for Rs.6,35,000/- to H.V.Somashekar and his wife Veena jointly. Ex.P9 disclose that, out of Rs.6,35,000/- sale consideration amount an amount of Rs.4 lakhs was paid to cheque, an amount of Rs.2 lakhs is paid to pay order and an amount of Rs.35,000/- is paid through cash. Judgment 13 C.C.23464/2014 Admittedly, the amount paid through cheque and pay order remit in the bank account of complainant. Thus in all Rs.6 lakhs out of sale consideration remit in the bank account of complainant. Ex.P10 is the bank pass book disclose that, on 16.09.2013 complainant withdrawn Rs.3,40,000/- through cheque for herself. It is not shown that, said amount was paid to accused. However, an inference can be drawn that, accused had withdrawn the amount of Rs.3,40,000/- and kept in her house. But so far as sale consideration amount of Rs.6 lakhs received through cheque and pay order, it is not shown that the amount was withdrawn from the bank and kept in the house. Complainant has not shown that she has source of income other than sale consideration of Rs.6,35,000/- and amount of Rs.3,40,000/- received from gold loan. Admittedly, complainant has not produced the bank statement in respect Rs.6 lakhs amount withdrawn from the bank and kept in the house. If really complainant had withdrawn the amount from the bank, then she will get the bank statement on which date she withdrawn the amount. Absolutely, complainant has not produced any such document to prove that, she had withdrawn the amount Judgment 14 C.C.23464/2014 kept in her house. Complainant has also not produced any document to show that she obtained gold loan of Rs.3,40,000/- and said amount was paid to accused. Thus complainant has failed to establish that as on 20.09.2013 she had the amount of Rs.10 lakh with her. Further in the cross-examination PW.1 has stated that, she cannot say the exact date and month on which she paid amount to accused. When the complainant has paid huge amount of Rs.10 lakhs, she cannot forget the date.
15. Complainant has admitted in her cross-examination that, she knows husband of accused Nataraj since 15 to 20 years and he was visiting to her house. It is the contention of complainant that, accused borrowed the amount for the purpose of her business. Complainant has not stated what business the accused had undertaken. Complainant is also unable to say the business of husband of accused. Admittedly, accused is a software engineer and complainant has sent the legal notice to her company. This itself proves that, accused is working in HP software company. This proves that, accused is not doing any business.
Judgment 15 C.C.23464/2014
16. Accused has denied her signature on Ex.P1. The accused has taken specific defence that, she has not borrowed money from complainant and issued Ex.P1 cheque in favour of complainant. Accused has specifically denied signature marked at Ex.P1(a). It is the specific contention of accused that, complainant and her husband colluded and filed the false complaint against her. When the accused denied the signature and execution of cheque, then burden lies on the complainant to prove that, accused has signed the cheque and issued to her for repayment of Rs.10 lakhs. Complainant has not taken any steps to refer the signature marked at Ex.P1(a) to the hand writing expert to establish that signature is that of accused. Complainant could have called for the bank manager along with specimen signature of accused and got identified the signature of accused on Ex.P1 cheque. When complainant has lent such a huge amount of Rs.10 lakhs she ought to have taken other documents or got executed loan agreement, but complainant has not taken any document. Admittedly, accused is not related to complainant and no prudent person would lend such a huge amount to stranger Judgment 16 C.C.23464/2014 without taking any document and without charging any interest.
At this stage this court has gone through the decision reported in Criminal Appeal No.2402 of 2014, between K.Subramani V/s K.Damodara Naidu.
"In the said ruling the Hon'ble Apex Court confirmed the Judgment of Trial Court acquitting the accused on the ground of capacity to pay the amount of cheque. In the above said ruling the Trial Court acquitted the accused on the ground that the complainant had no source of income to lend sum of Rs.14,00,000/-. In the appeal the 1st Appellate Court set aside the order and remanded the matter to the Trial Court to give an opportunity to complainant to prove the same. The accused went in appeal before the Hon'ble Apex Court and the Hon'ble Apex Court has set aside the order of the 1st Appellate Court and upheld the acquittal order passed by the Trial Court".
17. Complainant has failed to prove that she had an amount of Rs.10 lakhs with her as on 20.09.2013 and therefore complainant has failed to prove that, she had capacity to lend huge amount. It is pertinent to note that, in Ex.P9, it is stated complainant has sold the site to Judgment 17 C.C.23464/2014 discharge her loan and for the purpose of her family necessities. It is pertinent to note that, complainant is residing in a rented house. Complainant has no her own house, under such circumstances it is not possible to obtain gold loan and pay the amount to accused without any interest. What was the necessity for the complainant to obtain the loan and pay the amount to accused without interest is not explained. No prudent person would obtain loan and pay the amount to other person.
18. The documents produced by accused disclose that, there is no cordial relationship between herself and her husband. The said documents probablize the defence of accused.
At this stage this court has gone through the decision reported in KCCR 12 (3) page 2057, the Hon'ble Apex Court held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".Judgment 18 C.C.23464/2014
19. From the evidence placed on record it reveals that, complainant has failed to prove the execution of cheque by accused in her favour for discharge of alleged loan amount of Rs.10 lakhs. Complainant has failed to prove the existence of loan transaction as stated in the complaint. Complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act. In view of the above said reasons, I hold point No.1 in the Negative.
20. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 7th day of December - 2016) (S.G.SALAGARE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 19 C.C.23464/2014
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : B.Nagalakshmamma List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Letter dtd:17.06.2014 Ex.P4 : Office copy of legal notice Exs.P5 & P6 : Postal receipts Exs.P7 & P8 : Unserved postal covers Ex.P9 : CC of Sale Deed Ex.P10 : Bank Account Pass Book
List of Witnesses examined on behalf of the defence:
DW.1 : Sushmashree Heggade.D List of Exhibits marked on behalf of defence:
Ex.D1 : Xerox copy of police complaint dtd:30.7.15 Ex.D2 : Acknowledgment issued by Jayanagar PS Ex.D3 : Copy of police complaint dtd:02.09.2015 Ex.D4 : CC of complaint in C.Misc.No.215/15 on the file of MMTC-II, Bengaluru Ex.D5 : CC of order sheet in CC No.1333/13 Ex.D6 : Omega Tracking Reminder Ex.D7 : Mail Letter Ex.D8 : Laptop request letter Ex.D9 : Acknowledgment issued by Ulsoor Gate PS XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 20 C.C.23464/2014
07.12.2016.
Comp -
Accd -
For Judgment Judgment pronounced in the open court vide separate order.
*****
ORDER
Acting under Section 255(1) of
Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 21 C.C.23464/2014XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX and to establish that she has not issued Ex.P1 cheque for discharge of alleged loan amount of Rs.10 lakhs. To disprove the case of complainant accused has choosen to cross-examine PW.1 and also accused led her defence evidence.
PW.1 has deposed in her evidence affidavit that, husband of accused Nataraju was coming to her house since 10 to 15 years and therefore she came in contact with accused. PW.1 stated that, accused is not her relative. In the year 2013 accused borrowed an amount of Rs.10 lakhs from her for the purpose of business. PW.1 has stated that, she cannot say the exact date and month on which she paid amount to accused. She sold her site for Rs.8,40,000/- and also sold her golden ornaments for Rs.3,40,000/- and paid the amount to accused. Accused and her husband were doing business, but she cannot say exactly what business they were doing. PW.1 denied that, accused was not doing any business. Accused has issued the cheque in the month of March, 2014. PW.1 denied the suggestion Judgment 22 C.C.23464/2014 that, she has not having capacity to lend an amount of Rs.10 lakhs to accused. In the cross-examination of PW.1 on page 11 accused counsel suggested that Ex.P1 is not signed by accused. PW.1 denied the suggestion of accused counsel that, Nataraj and PW.1 have forged the signature of accused marked as Ex.P1(a).
In the defence evidence accused has stated that, she has not borrowed amount of Rs.10 lakhs from complainant and she has not issued Ex.P1 cheque in favour of complainant for discharge of alleged amount of Rs.10 lakhs. Accused has stated that, she married Nataraj on 10.06.2012 and they were cordial with each other till January, 2013 and thereafter the relationship between accused and her husband strained, and she went to her mother's house. The elder persons have advised and again sent her to her husband house. Her husband was doing stock market trading business and for the purpose of his business her husband has opened the bank account at IndusInd Bank, Thippasandra Branch in her and took the cheque book on the said account. Her husband had taken two cheque leaves from the said cheque book. Again she went to her mother's house in the month of March, 2013 and thereafter Judgment 23 C.C.23464/2014 she did not joint her husband. Accused stated that, she was working in HP Softwhere company, situated at Electronic City and came back to Bengaluru and she was residing along with her friends at Jayanagar 8th Block, Sangam Circle, Bengaluru. Her husband was giving harassment to her in respect of money and in that aspect she lodged complaint before the Jayanagar Police. Her husband was secured by police and her husband given statement admitting the cheques by him and undertaking to return the cheques after completion of money transaction of his creditors. Accused stated that, she is not acquainted with Nagalakshmamma, she had no any money transaction with Nagalakshmamma, she has not borrowed any money from complainant and she has not received any demand notice from complainant. Accused stated that, on 20.03.2013 since 8.00 am to 5.00 pm she worked at HP Company and she has submitted her work report to her manager through E-Mail. Accused stated that, her husband came along with complainant to court and he was giving harassment to her and therefore she lodged complaint at Ulsoor Gate Police Station. Accused has admitted that cheque belongs to her, but she refused to Judgment 24 C.C.23464/2014 admit the signature and other writings. Her husband and complainant colluded with each other and got misused Ex.P1. In order to prove that, on 20.03.2013 she was working at her HP Company, accused has produced Exs.D6 to D8. Exs.D6 to D8 are the copies of computer print, by producing these documents complainant is trying to establish that on 20.03.2013 she worked at her HP company, situated at Electronic City from 8.00 am to 5.00 pm. Ex.D6 is a message from WW OMEGA Program HP Enerprise Services. This document disclose that, the said message is sent from Omega tracking information on 15.10.2013 Tuseday, to accused herein. It is submitted that, Omega tracking close Thursday, October 17, 2013. But this document did not disclose that, accused was worked from 8.00 am to 5.00 pm on 20.09.2013. Ex.D7 is Mail sent by accused to one Kumar Ravi regarding the team work done by her. Ex.D8 is mail sent by accused to one Arunkumar regarding laptop request. It is the contention of accused that, all these mails are sent through company systems. But Exs.D6 to D8 do not disclose that, the said mails are sent through company systems. Of course this mails are computer print outs and the