Bangalore District Court
Aged About 71 Years vs Aged About 34 Years on 15 April, 2019
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 15th DAY OF APRIL, 2019
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.54620/2018
Smt. Suriya Kumari
W/o. Late Sri. Hemadri Naidu
COMPLAINANT Aged about 71 years, R/at No.43, Pillayar
Koil Street, Richmond Town, Ashokanagara,
Bengaluru - 560 025.
Smt. Prithi .J
D/o. Leelavathi and Late Janakiram
ACCUSED Aged about 34 years, R/at No.19, 1st Floor,
1st Cross, LIC Colony, 3rd Block, Jayanagar
East, Bengaluru - 560 011.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.54620/2018
JUDGMENT
The complainant has approached this court with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. The case of the complainant is that, accused being her relative frequently visiting the residence of the complainant and had gain confidence of the complainant. During 2012, when the accused came to know that the complainant had substantial amount with her asked the complainant to lend Rs.20 lakhs. The complainant borrowed Rs.5 lakhs by pledging her jewellery in the bank, Rs.8 lakhs from the deposit of her house advance and remaining amount by taking hand loan from her relatives and gave entire Rs.20 lakhs in cash to the accused. Much later the complainant insisted the accused to repay the amount. After intervention of Police Sahayavani, the accused gave away her used car to the complainant and asked the complainant to sell the same to appropriate the amount towards part payment of the due amount. The accused also issued cheque bearing No.001888 dtd.05.01.2018 for Rs.18 lakhs drawn on ICICI Bank, J.B Nagar branch, Bengaluru in favour of the complainant for clearing the balance amount.
3 C.C. No.54620/20183. It is further case of the complainant that as per promise of the accused, the complainant presented the said cheque for encashment through her banker on 26.02.2018, but the said cheque was returned dishonoured on 27.02.2018 for the reason "account closed". The accused has also started to avoid the complainant. Thereafter the complainant got issued statutory notice to the accused on 23.03.2018, the said notice was returned by the postal authorities on 02.04.2018 with a shara "not claimed". The accused intentionally refused to take the notice. In spite of the service of notice, the accused did not comply with the demand made in the said notice and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Under these attending circumstances, the complainant is constrained to file the present complaint and accordingly prayed for conviction of the accused and for grant of compensation in accordance with law in the interest of justice and equity.
4. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons and accordingly Criminal Case was registered against the accused for the offence 4 C.C. No.54620/2018 punishable U/s.138 of N.I. Act and summons was ordered to be issued.
5. In pursuance of the summons issued by this court, the accused has put up her appearance through her counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial. Thereafter the accused herself conducted the case in person.
6. In order to prove the case of the complainant, the complainant herself examined as CW.1 and got marked as many as six documents as per Ex.P1 to P6. The complainant has also examined one witness as CW.2 and closed her evidence. After closure of the complainant's side evidence, statement of the accused as provided U/s.313 of Cr.PC was recorded. The accused has denied the incriminating circumstances found in the evidence of the complainant's side. The accused herself examined as DW.1 and got marked six documents as per Ex.D1 to D6 and closed her evidence and thereby evidence of the parties concluded.
7. Heard the arguments of the learned counsel for the complainant. The learned counsel for the complainant has also filed written synopsis of the argument with following two citations.
5 C.C. No.54620/2018A) Crl. A. No.508/2019 (Rohitbhai Jivanlal Patel Vs. State of Gujarat and another) B) Crl. A. Nos.230-231/2019 - (Bir Singh Vs Mukesh Kumar) Similarly the accused herself filed detail written argument.
8. On perusal of the entire material available on file and also on hearing the arguments with the rulings relied, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt as contended by her?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is entitled for the relief as prayed in the complaint?
4) What Order?
9. The above points are answered as under;
Point Nos.1 to 3 : In negative,
Point No.4 : As per the final order,
for the following.......
6 C.C. No.54620/2018
REASONS
10. Point Nos. 1 to 3 : Since these points are
inter linked and to avoid repetition they are taken together for discussion. Before looking into the disputed facts, it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the complainant and accused are relatives and well known to each other. It is also noticed that admittedly accused was the owner of the Ford Figo Car bearing Reg. No.KA-03-MP-5613 which was later given to the complainant and in turn the complainant sold out the said vehicle through CW.2 for Rs.2 lakhs and the said amount was appropriated by the complainant. It is found that there was a some quarrel between the complainant and accused and the accused had lodged police petition against the complainant before Police Commissioner, Infantry Road, Bengaluru which was later enquired by Tilaknagar Police. Similarly the complainant had also lodged petition before the "Sahayavani" of Senior Citizens of Police Commissioner's Office, Infantry Road, Bengaluru and there was enquiry in that regard. It is also clear that there the accused was in need of financial assistance in the year 2012 and there was monitory transaction between the 7 C.C. No.54620/2018 complainant and accused. It is admitted fact that cheque in question belonged to the accused, signed by her and handed over to the complainant. Further it is not in dispute that the cheque in question was presented for encashment by the complainant and the same was dishonoured for the reason "account closed" and thereafter the complainant got issued legal notice to the accused in that regard which was returned as "not claimed". It is clear that the accused neither complied with demand made in the legal notice nor issued any reply to it.
11. With the above admitted facts, now the facts in issue are analyzed, as already stated the accused has denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act while recording her plea for the said offence and also denied the incriminating circumstances found in the evidence of the complainant and her witness at the time of recording her statement U/s.313 of Cr.PC. The accused has specifically denied the availment of loan of Rs.20 lakhs and issuance of cheque in favour of the complainant towards discharge of the said amount as put up by the complainant. Further the accused has also denied the service of statutory notice on her. On going through the cross-examination of the complainant and evidence of the accused, it is clear that in addition to the total denial of the case of the complainant, the positive 8 C.C. No.54620/2018 defence of the accused is found to be that she was in some financial difficulties in the year 2012 and the complainant came forward to provide Rs.2 lakhs to her as interest free hand loan and the accused promised to repay the same within ten days. At the time of giving Rs.2 lakhs, the complainant had taken RC book, Form No.29 and 30 of the car of the accused and also four signed blank cheques as a security for the said amount. It is further contention of the accused that she could not repay the amount within ten days as promised and as such the complainant asked for interest on the said amount. Thereafter the accused repaid the entire amount of Rs.2 lakhs in between December 2013 to January 2014 as promised by her. However the complainant did not return the four signed blank cheques, R.C book, Form Nos.29 & 30 which were taken by her as a security in spite of request made by the accused, stating that the said documents were misplaced and she will return the same after search. But she did not return the cheques and other documents in spite of the several requests made by the accused and now filed the false case by misusing the one of the cheques and accordingly on these grounds the accused has prayed for her acquittal in the interest of justice and equity.
12. It is needless to say that the proceeding U/s.138 of N.I. Act is an exception to the general principle that the 9 C.C. No.54620/2018 accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further recently the Hon'ble Apex court in Crl. A. No.803/2018 - (Krishna 10 C.C. No.54620/2018 Rao Vs Shankare Gowda) reported in 2018 (7) SCJ 300 reiterated the above principle. Further the recent decision of the Hon'ble Apex Court in Crl. A. No.508/2019 (Rohitbhai Jivanlal Patel Vs. State of Gujarat and another) and Crl. A. Nos.230-231/2019 - (Bir Singh Vs Mukesh Kumar) relied by the learned counsel for the complainant also support the said view. Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheques in question was issued for consideration on the date found therein.
13. In the light of the rival contention of the parties at the out set it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. In order to prove the case of the complainant, the complainant being CW.1 reiterated the complaint averments in her sworn statement by way of affidavit which itself is treated as examination-in-chief, in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. In addition to that the complainant has produced cheque dtd.05.01.2018, bank endorsement dtd.27.01.2018, petition dated 25.09.2017 given to Sr. Citizen's Sayahavani of the Police Commissioner's Office, Police Notice dtd.14.07.2017, office copy of legal notice dtd.23.03.2018, returned not claimed RPAD envelop containing statutory 11 C.C. No.54620/2018 notice addressed to the accused as per Ex.P1 to P6 respectively to substantiate her contention in this regard. As already stated it is admitted fact that Ex.P1-cheque belonged to the accused and the same is signed by her. Ex.P2-bank endorsement reveals that Ex.P1-cheque was presented for encashment by the complainant through her banker-Karnataka Bank Ltd., Ashokanagar, Bengaluru which was dishonoured on 27.02.2018 for the reason "account closed". Further the contents of Ex.P5 and P6 reveal that after dishonour of the cheque as found in Ex.P2, the complainant got issued legal notice dated 23.03.2018 to the accused by RPAD., and the same was found to be returned with a postal shara "not claimed" on 02.04.2018 as put up by the complainant. The complainant presented the complaint on 28.04.2018. On perusal of these documents, it is clear that the complainant had presented the cheque for encashment within its validity, got issued statutory notice in time and presented the complaint within prescribed period after service of the notice on the accused as required under law and thereby complied with all the requirements of Sec.138 of N.I. Act.
14. Added to the above documentary evidence, the complainant in her evidence by way of affidavit specifically stated as to compliance of requirements of Sec.138 of N.I. Act as contended. However the accused has denied the 12 C.C. No.54620/2018 service of notice on her and thereby the compliance of statutory requirements of Sec.138 of N.I. Act. In this regard the learned counsel for the complainant relied on Ex.P6 returned RPAD envelop with an endorsement "not claimed"
contending that when the notice sent by RPAD., returned as "not claimed" it shall be deemed to be served. The learned counsel has also taken notice of this court as to delivery of intimation slip by the postal authority in that regard as found in Ex.P6. No doubt as argued by the learned counsel for the complainant, when the registered post returned as "not claimed", it shall be deemed to be served on the addressee. In this regard, it is noticed that except mere denial of service of notice, the accused has not put up such evidence before this court to disbelieve the postal endorsement. No doubt in this case the accused has produced letter given to the postal authority as per Ex.D4 seeking information as to the service of registered post as per Ex.P6. But on the basis of the said document, it cannot be said that notice was not served on her. It is not the case of the accused that notice was sent to the wrong or incorrect address. This being the fact when the notice was sent to the correct address of the accused, it is the duty of the accused to receive the registered post that too when the intimation slip was delivered on her as found in Ex.P6. Further it is also noticed that summons sent by this court to the same 13 C.C. No.54620/2018 address of the accused was also found to be served on the accused on the same address. Absolutely there is no convincing and acceptable evidence to disbelieve the postal endorsement found in Ex.P6. Mere denial of the service of notice is not sufficient to disbelieve the service of notice on the accused. Since the registered notice was found to be not received by the accused, in spite of delivery of intimation slip, as argued by the learned counsel for the complainant the notice shall be deemed to be served on the accused. Under these attending circumstances, in the absence of any convincing and acceptable evidence on behalf of the accused, this court did not find any grounds to accept the contention of the accused that notice was not served on her and there is no merit in the contention of the accused in that regard.
15. Therefore on conjoint reading of the entire oral and documentary evidence, there remains no doubt that the complainant had complied with all the requirements of Sec.138 of N.I. Act. This being the fact, as discussed earlier, in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available U/s.139 of N.I. Act is required to be drawn and shall presume that the accused had issued the cheque as per Ex.P1 towards discharge of legally recoverable debt. It is also to be 14 C.C. No.54620/2018 presumed that cheque was issued for consideration on the date as mentioned therein.
16. It is well settled principle of law through catena of decisions that, though the statutory presumptions available U/ss.118 and 139 of N.I. Act are mandatory in nature, they are rebuttable one. It is needless to say that when the complainant proves the requirements of Sec.138 of N.I. Act, the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the presumptions with all preponderance of probability with clear, cogent and convincing evidence though not beyond all reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts on the shoulder of the complainant. It is also well settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also set in rest that in order to rebut the presumption it is not imperative on the part of the accused to step into the witness box and he may discharge his burden on the basis of the material already brought on record and on the basis of the facts elicited in the cross-examination of the complainant. It is also equally true that, if the accused places such evidence so as to disbelieve the case of the complainant, then the 15 C.C. No.54620/2018 presumptions stand rebutted. This view is also supported with the decision of the Hon'ble Apex court reported in (2006) 3 SCC (Crl.) 30 - (Tamilnad Mercantile Bank Ltd., Vs M/s.Subaiah Gas Agency and others), ILR 2009 (2) 1633 - (Kumar Exports Vs Sharma Carpets), AIR 2008 (SC) 1325 (Krishna Janardhan Bhat Vs. Dattathraya G. Hegde), 2013 SAR (CRI) 373 - (Vijay Vs Laxman and another) and AIR 2010 (SC) 1898 - (Rangappa Vs. Mohan) and also the citations produced by the complainant. Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
17. In view of the defence taken by the accused, as against the claim of the complainant, now the evidence available on behalf of the accused is analyzed, in support of the defence of the accused in addition to the cross- examination of the complainant's side witnesses, the accused herself examined as DW.1 and got marked six documents as per Ex.D1 to D6. So far as the filing of police petition as per Ex.D1 by the accused is not in dispute. Further the contents of Ex.D2 i.e B-Register Extract copy reveals that the accused was the owner of the FORD FIGO Car bearing Reg. No.KA-03-MP-5613 and the ownership of the said car was later transferred in the name of the complainant on 20.07.2016 and in that regard there is no 16 C.C. No.54620/2018 dispute. Though the accused has produced letter dtd.12.03.2019 given to the Branch Manager of the ICICI Bank seeking certain information and letter dtd.01.02.2019 given to the Superintend of Post seeking clarification as to service of registered post sent by the complainant under registered post No.RK347762737IN as per Ex.D3 and D4 and two postal receipts for having sent said letters to the concerned as per Ex.D5 and D6, they are found to be no use to the accused to substantiate her defence in any angle. The accused has produced the letter issued by the ICICI Bank by filing a memo which disclose that the bank account of the accused with ICICI Bank was closed on 31.07.2015 itself. It is not in dispute that cheque in question was bounced for the reason "Account Closed".
18. Now the evidence available on record with regard to the transaction as stated by the complainant is analyzed, as argued by the learned counsel for the complainant, CW.1 in her evidence stated as to the transaction between herself and the accused and also issuance of cheque by the accused as per Ex.P1 in her favour towards discharge of due amount of Rs.18 lakhs. Similarly the CW.2 in his examination-in- chief stated as to arranging of Rs.3 lakhs to the complainant in the year 2013 - 2014, selling of the FORD FIGO car of the accused at the request of the complainant at the end of 2016. He has also stated as to filling up of the Ex.P1- 17 C.C. No.54620/2018 cheque at the instance of the complainant in the presence of the accused.
19. With the evidence of the CWs.1 & 2, now the contents of the legal notice are analyzed, the complainant has not stated as to when the accused had borrowed the amount and for what purpose, except stating that the accused had borrowed Rs.20 lakhs in cash from her. But in the complaint, the complainant has stated that during 2012, the accused having knowledge of the money with the complainant pleaded her to lend Rs.20 lakhs and accordingly the complainant borrowed Rs.5 lakhs by pledging her jewellery in the bank, Rs.8 lakhs from the deposit of house advance and by borrowing the remaining amount from her relative, lent Rs.20 lakhs to the accused against the same cheques which were once taken away by the accused. In the complaint also the complainant has not stated as to the purpose for which the accused had taken alleged money from her. But from the complaint averments one thing is clear that the complainant claims lending of Rs.20 lakhs to the accused against the same cheques which were once taken away by the accused. Hence it appears from the complaint averments itself that the accused had given same cheques previously to the complainant and against the said cheques only, the complainant had given the alleged Rs.20 lakhs. This aspect presupposes the existence of earlier 18 C.C. No.54620/2018 transaction between the complainant and accused. But nowhere the complainant has disclosed the same. The complainant has not stated this facts in her notice also.
20. With the above said complaint averments, the defence of the accused is analyzed, one cannot totally rule out her defence. Now the lending of Rs.20 lakhs as put up by the complainant is looked into, the complainant in her complaint stated that amount of Rs.20 lakhs was lent to the accused during 2012. In her evidence also complainant has stated that during 2012 accused and her sister pleaded with her that they wanted capital of Rs.20 lakhs to do money lending business. She further stated that though she was reluctant to give such huge amount, at the persuasion of the accused and her sister mobilized Rs.5 lakhs by pledging her gold jewellary at her bank in Krishnagiri of Tamilnadu, by taking Rs.7 lakhs as hand loan from her friends and Rs.8 lakhs collected from her tenants and in all Rs.20 lakhs and lent it to the accused. But during cross-examination she has stated that "£Á£ÀÄ DgÉÆæ ¦æÃw eÉ gÀªÀjUÉ 20 ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß ¸Á®ªÁV PÉÆnÖzÉÝ. £Á£ÀÄ DgÉÆæUÉ MAzÉà ¨Áj 20 ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß PÉÆnÖgÀ°®è. CªÀjUÉ 3 ¨Áj ¸ÉÃj MlÄÖ 20 ®PÀë gÀÆ¥Á¬Ä PÉÆnÖzÉÝ. £Á£ÀÄ 2016 gÀ°è DgÉÆæUÉ 8 ®PÀë gÀÆ¥Á¬Ä PÉÆnÖzÉÝ. ¢£ÁAPÀ ªÀÄvÀÄÛ wAUÀ¼À£ÀÄß £À£ÀUÉ ºÉüÀ¯ÁUÀĪÀÅ¢®è. 8 ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß PÉÆlÖ 2 ¢£ÀzÀ £ÀAvÀgÀ ¥ÀÅ£ÀB DgÉÆæUÉ 5 ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß PÉÆnÖzÉÝ. 5 ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß PÉÆlÖ 19 C.C. No.54620/2018 MAzÀÄ ªÁgÀzÀ £ÀAvÀgÀ £Á£ÀÄ DgÉÆæUÉ ¥ÀÅ£ÀB 7 ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß PÉÆnÖzÉÝ. J¯Áè 20 ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß £ÀUÀzÀÄ gÀÆ¥ÀzÀ°èAiÉÄà PÉÆnÖzÉÝ. £Á£ÀÄ DgÉÆæUÉ 500 ºÁUÀÆ 1000 gÀÆ¥Á¬ÄUÀ¼À £ÉÆÃn£À°è ºÀtªÀ£ÀÄß PÉÆnÖzÉÝ." This version of the accused is totally different and inconsistent with the loan transaction stated in the complaint and evidence affidavit of the complainant. Further it is also noticed that in the complaint, the complainant stated that she had taken Rs.7 lakhs hand loan from "her relatives", whereas in affidavit evidence it was from "her friends" and in cross- examination from "her known person". Further it is also evidence of CW.1 during cross-examination that "2013 QÌAvÀ ªÉÆzÀ®Ä DgÉÆæAiÀÄÄ £À¤ßAzÀ AiÀiÁªÀÅzÉà ¸Á®zÀ ºÀtªÀ£ÀÄß ¥ÀqÉ¢gÀ°®è". This evidence of the complainant herself totally falsify the alleged loan transaction as put up by the complainant.
21. Added to the above aspects, from the cross- examination of the complainant, there arises another version as to mobilizing of the funds as stated by her. During her cross-examination she has stated that "5 ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß DgÉÆæUÉ £Á£ÀÄ £ÀªÀÄä ªÀÄ£ÉAiÀÄ ¥ÀPÀÌzÀ°ègÀĪÀ ªÀiÁªÁðrAiÀĪÀgÀ°è §AUÁgÀªÀ£ÀÄß CqÀ«lÄÖ PÉÆnÖzÉÝ." She further stated that "£Á£ÀÄ £À£Àß §AUÁgÀªÀ£ÀÄß ªÀiÁªÁðrAiÀÄ §½ 2013 - 2014 gÀ°è CqÀ«lÄÖ ºÀt vÉUÉzÀÄPÉÆArzÉÝ. D jÃw £Á£ÀÄ §AUÁgÀªÀ£ÀÄß CqÀ«lÖ §UÉÎ £À£Àß §½ FUÀ AiÀiÁªÀÅzÉà zÁR¯Áw E®è.
20 C.C. No.54620/2018£Á£ÀÄ §AUÁgÀªÀ£ÀÄß CqÀ«lÖ CAUÀrAiÀÄ ºÉ¸ÀgÀÄ ªÀÄ£ÉÆúÀgï ¥ÁgÀ¸ï PÀ£Áå¯Á¯ï ¥Á£ï ¨ÉÆæÃPÀgï JA§ ºÉ¸Àj£À CAUÀrAiÀiÁVvÀÄÛ. £Á£ÀÄ 7 ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß £À£Àß ¥ÀjZÀAiÀÄzÀªÀgÁzÀ QåµÀÚ¥Àá, ªÀgÀ®Qëä ºÁUÀÆ ¸À«vÀ J£ÀÄߪÀªÀjAzÀ vÉUÉzÀÄPÉÆArzÉÝ. CªÀjAzÀ £Á£ÀÄ ºÀt vÉUÉzÀÄPÉÆAqÀ §UÉÎ AiÀiÁªÀÅzÉà zÁR¯Áw E®è." These different versions of the complainant herself creates doubt in the mind of the court as to the very loan transaction alleged.
22. Further the complainant during her cross- examination deposed that "DgÉÆæAiÀÄÄ PÉJ-03-JA¦-5613 £ÀA§j£À PÁgÀ£ÀÄß £À£ÀUÉ ¸ÀzÀj PÁgÀ£ÀÄß ªÀiÁgÁl ªÀiÁrPÉƼÀÄîªÀAvÉ ¥ÀvÀæ §gÉzÀÄPÉÆlÄÖ PÁgÀ£ÀÄß DgÉÆæAiÉÄà ElÄÖPÉÆArzÀÝgÀÄ. vÀzÀ £ÀAvÀgÀzÀ°è zÉÆqÀتÀgÀÄ ªÀiÁvÁrzÀ £ÀAvÀgÀ DgÉÆæAiÀÄÄ PÁgÀ£ÀÄß £À£ÀUÉ PÉÆnÖzÀÄÞ PÁj£ÉÆA¢UÉ 18 ®PÀë gÀÆ¥Á¬ÄAiÀÄ ZÉPÀÌ£ÀÄß ¸ÀºÀ PÉÆnÖzÀÝgÀÄ. DgÉÆæAiÀÄÄ §gÉzÀÄPÉÆlÖ ¥ÀvÀæªÀÅ £À£Àß §½ EzÀÄÝ CzÀ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ¥Àr¸À®Ä AiÀiÁªÀÅzÉà vÉÆAzÀgÉ E®è." This evidence of the complainant reveals that there is a letter executed by the accused with the complainant relating to the transaction. But the said document is not produced before the court. As argued by the accused, it is also noticed from the evidence of the complainant that the purpose of the loan stated by the complainant is also not certain. In her examination-in-chief she stated that the accused and her sister were in need of money to do money lending business, whereas in the cross-examination she has 21 C.C. No.54620/2018 stated that "DgÉÆæAiÀÄÄ ªÀÄt¥ÀågÀA UÉÆïïØ£À°è CqÀ«lÖ §AUÁgÀªÀ£ÀÄß ©r¹PÉƼÀî®Ä ªÀÄvÀÄÛ ©¹£É¸ï ªÀiÁqÀ®Ä ºÀt ¨ÉÃPÉAzÀÄ £À¤ßAzÀ ºÀtªÀ£ÀÄß ¥ÀqÉ¢zÀÝgÀÄ." This aspect again creates doubt as to the contention of the complainant. Further the synopsis of argument submitted by the learned counsel for complainant gives some other version in para 'f', 'g' and 'j' as to assumed purpose of loan.
23. As argued by the learned counsel for the complainant, in Ex.P3, the complainant has stated that the accused and her sister took back the cheques from the complainant. But the complaint averments reveal that against the same cheques the complainant had lent Rs.20 lakhs to the accused. Again in Ex.P3, there is reference as to payment of amount to the financers and the amount paid by the complainant was not returned by the accused, her sister, mother and her uncle Rajaram. This is the another version as to loan transaction. Further it is also noticed that, Ex.P3 petition was given on 25.09.2017 and in the said petition, the complainant stated as to filing of the cheque bounce case in the court. But the present complaint was filed on 28.04.2018 and not prior to 25.09.2017 as found in Ex.P3. CW.1 in her cross-examination specifically stated that she had not filed any other cheque bounce case against the accused in any other court. In this view of the matter 22 C.C. No.54620/2018 again there arises serious doubt as to the very loan transaction alleged by the complainant. Hence on going through the entire evidence of CW.1, it appears that she has come with some facts to suit her claim by suppressing the real facts.
24. In this case the complainant though examined one witness as CW.2, his evidence is no way helpful to the complainant to establish her contention. On the other hand his evidence found to be contrary to the case of the complainant. As already stated the complainant stated that she had taken loan from CW.2 to mobilize the amount sought for by the accused. But the examination-in-chief of CW.2 itself reveals that he had only arranged for Rs.3 lakhs to the complainant from the financier in the year 2013 - 2014 against the cheque of the complainant herself. Therefore it is clear that CW.2 had not given hand loan as stated by the complainant. It is also noticed that CW.2 during his cross-examination stated that, he does not know the address of the accused. On the other hand complainant in her cross-examination stated that CW.2 himself brought the address of the accused and had given it to the advocate of the complainant. Further the evidence of CW.2 reveals that he himself written Ex.P1 cheque at the instance of the complainant in the presence of the accused. Therefore one thing is certain that the cheque in question was blank and 23 C.C. No.54620/2018 was filled up by CW.2. But it is not the case of the complainant. Further evidence of CW.1 and CW.2 are analyzed, it is clear that CW.2 is sailing with the complainant. On going through the evidence of CW.2, this court is of the considered view that his evidence is not trustworthy and not inspiring the confidence of the court.
25. With the above aspects, now the evidence of DW.1 is analyzed, the accused in her evidence stated her defence. Though the learned counsel for complainant cross-examined the accused, he could not elicit anything from her mouth to support the case of the complainant in any angle. Further the suggestion put to the mouth of the accused is also found to be contrary to the case of the complainant. In the complaint, the complainant specifically stated that the accused had issued Ex.P1 cheque after intervention of Police Sahayavani and not as per the settlement before Ashoknagar Police Station on 19.11.2016 as suggested. Even the purpose of the loan suggested to the mouth of CW.1 is found to be in another version.
26. Therefore on going through the entire evidence on records, it clearly appear that the complainant has suppressed the real fact and come up with some facts to suit her claim on the basis of Ex.P1. The case of the complainant creates serious doubt in the mind of the court. In the light of 24 C.C. No.54620/2018 the existing evidence, this court is of the considered view that the defence of the accused cannot be totally ruled out. It is very difficult to accept that such huge amount was given without any documents that by taking hand loan etc., by the complainant as stated. The complainant has not produced any documents to show that he had pledged her jewelleries with any person so as to mobilize the amount as stated. Therefore the case of the complainant is totally surrounded with heavy cloud and creates serious doubt. No doubt as argued by the learned counsel for the complainant, the accused is found to be an advocate and she had not issued reply to the legal notice. But on that basis the case of the complainant cannot be accepted in the light of the existing evidence. As discussed in detail, when the evidence placed before this court leads to disbelieve the case of the complainant, then the presumption stands rebutted. Thus considering all these aspects, this court is of the considered view that the complainant has failed to prove point nos.1 & 2 in her favour as contended. It is needless to say that when the complainant failed to prove point nos.1 and 2, the complainant cannot be granted with any relief as sought for in this case. Hence, point Nos.1 to 3 are required to be answered in negative and answered accordingly.
25 C.C. No.54620/201827. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following....
ORDER Acting under Section 255(1) of Cr.PC accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bond of accused and that of her surety stands cancelled.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 15th day of April, 2019) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 26 C.C. No.54620/2018 ANNEXURE Witnesses examined for the complainant:
CW.1 : Smt. Suriya Kumari V.H
CW.2 : Sri. Y. Krishnappa
Witnesses examined for the defence:
DW.1 : Prithi .J
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P2 : Bank endorsement
Ex.P3 : Complaint dated 25.09.2017
Ex.P4 : Police notice dtd.14.07.2017
Ex.P5 : Office copy of the Legal notice
Ex.P6 : Returned RPAD cover
Documents marked for the defence:
Ex.D1 : Complaint dated 01.12.2016
Ex.D2 : Vehicle particulars certificate
Ex.D3 : Application dtd.12.03.2019
Ex.D4 : Letter dated 01.02.2019
Ex.D5 & D6 : Two postal receipts
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU