Bangalore District Court
Sri.L.Mallikarjuna vs Smt.Usha R.Rao on 30 June, 2016
IN THE COURT OF XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 30th day of June 2016
Present: Smt. Saraswathi.K.N, B.A.L.,LL.M.,
XVI Addl. Chief Metropolitan Magistrate,
Bengaluru.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.9730/2014
Complainant : Sri.L.Mallikarjuna, Advocate,
S/o. Late K. P.Linga Reddy,
Aged about 44 years,
R/at 1st Cross, 1st Stage,
1st Block, H.B.R.Layout,
Bengaluru-43.
(Rep. by Sri.M.G.Nagesh Babu.,
Adv.,)
- VS -
Accused : Smt.Usha R.Rao,
W/o.Sri.V.Raghavendra Rao,
Aged about 45 years,
R/at.No.363,
16th "A" Main, Sri Raghavendra
Swamy Temple Road,
Jayanagar T-Block, Bengaluru
(Rep. by Sri.H.Pavan Chandra
Shetty, Adv.,)
Case instituted : 19.2.2014
2 C.C. No.9730/2014
Offence complained : U/s 138 of N.I. Act
of
Plea of accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 30.06.2016
JUDGMENT
The Complainant has filed this complaint against the accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. It is the case of the Complainant that, the Accused and her family members are well known to him since 10 years and taking advantage of the same, the Accused and her husband approached him on 20.12.2012 and requested him for financial assistance for her family and business necessities to the tune of Rs.40,00,000/- & he has paid a sum of Rs.20,00,000/- on 31.1.2013. Out of that, a sum of Rs.12,00,000/- was received by the husband of the Accused and Rs.8,00,000/- by her. He also represented that, he has arranged the remaining amount of Rs.20,00,000/-. At the time of the availing loan, the Accused had assured him that, she would pay the said amount within 15 days. After a lapse of 15 days when he personally contacted the Accused at her residence till 19.11.2013, on that day, the Accused has issued a cheque bearing No.482799 dated 26.12.2013 for an 3 C.C. No.9730/2014 amount of Rs.8,00,000/- drawn on the Canara Bank, Jayanagar 4th "T" Block, Bengaluru. On 20.12.2013, when he personally approached the Accused for presenting the same on 26.12.2013, she assured that, she would keep the amount in her account sufficiently. As per the assurance given by the Accused, when he presented the said cheque for encashment through his Banker, it got dishoured with shara "Funds Insufficient". Thereafter he personally met the Accused seeking repayment of the cheque amount and at that time the Accused requested him to represent the said cheque on 27.1.2014 for encashment, once again it got dishonoured with a shara 'Funds Insufficient". Thereafter he got issued legal notice to the Accused by way of RPAD to her residential address. The said notice has been served upon the Accused. Inspite of it, the Accused has neither replied to the legal notice nor repaid the cheque amount. Hence the present case.
3. After recording the sworn statement of the Complainant, the same has been registered as a criminal case, summons has been issued to the accused, who has appeared through her counsel and has got enlarged on bail. The substance of the accusation has been read over to her, she has pleaded not guilty and has claimed to be tried.
4 C.C. No.9730/20144. In order to prove his case, the Complainant has examined himself as PW-1 by relying upon the documentary evidence at Ex.P1 to P17.
5. Thereafter, the incriminating evidence found in the evidence of the Complainant has been explained to the accused by recording her statement as required under Sec. 313 of Cr.P.C., who has denied the same and has chosen to lead her defence evidence.
6. The Accused has examined herself as DW1 and relied upon Ex.D1.
7. The counsel for the Complainant has filed his written arguments along with citations. Similarly the counsel for the Accused has also submitted his written arguments.
8. I have perused the same and also the other materials available on record.
9. The following points arise for my consideration:-
1. Whether the Complainant has proved beyond reasonable doubt that the accused is guilty of the offence punishable under Sec.138 of the Negotiable Instruments Act?
2. If so, what Order or Sentence?
10. My findings to the above points are as under:-
5 C.C. No.9730/2014Point No.1 : Negative;
Point No.2 : As per the final order for the following:-
REASONS
11. POINT No.1:- It is the case of the Complainant that, on 20.12.2012, the Accused and her husband approached him seeking financial assistance for the purpose of their family and business necessities to the tune of Rs.40,00,000/- and he has paid a sum of Rs.20,00,00/- on 31.1.2013, out of which a sum of Rs.12,00,000/- has been received by the husband of the Accused and Rs.8,00,000/- by the Accused and that the said amount had been agreed to be repaid by the Accused within 15 days. According to the Complainant, though the Accused had assured of repaying the said amount of Rs.8,00,000/- within 15 days, she failed to keep up her promise and thereafter, towards the repayment of the said amount, she has issued the cheque in question, which upon presentation twice, came to be dishonoured due to the reason "Funds Insufficient" in the account of the Accused. In this regard, the Accused is said to have issued the cheque at Ex.P1 which came to be bounced and thereafter even after the service of the legal notice, the Accused has not repaid the cheque amount.
6 C.C. No.9730/201412. In order to prove these allegations, the Complainant by examining himself as PW.1 has reiterated the complaint averments in his affidavit.
In support of his oral evidence, initially P.W-1 has relied upon the following documentary evidence:-
Ex.P1 is the disputed cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank memos are as per Ex.P2 & 3, the office copy of the legal notice is as per Ex.P4, the Postal receipts are as per Ex.P5 & 6, the letter as per Ex.P7, the complaint settled reply as per Ex.8 & the original complaint as per Ex.P9.
13. On the basis of the documentary evidence at Ex.P1 to 9, PW1 has been extensively cross-examined by the learned Defence counsel and thereafter on 2.2.2015 and 6.3.2015, PW1 produced the additional documentary evidence as per Ex.P10 to 17 which are as follows:-
The Statement of Account as per Ex.P10, the certified copy of Joint memo as per Ex.P11, the Subscriber Account Statement as per Ex.P12, the IT Returns are as per Ex.P13 to 16, the Bank Statement as per Ex.P17.
14. By placing reliance upon this documentary evidence, in his cross-examination, it is elicited from P.W-1 that, he cannot state his definite monthly income from his 7 C.C. No.9730/2014 advocacy profession and that he is residing in a rented house and his office is also in a residential building which is situated in his residence itself. According to PW1 on 31.1.2013 he had withdrawn Rs.6,50,000/- from his account and the remaining amount was with him. In this regard it is pertinent to note that, it is the specific claim of the Complainant that, he has paid a sum of Rs.20,00,000/- to the Accused on 31.1.2013, out of which, a sum of Rs.12,00,000/- has been paid by him to the husband of the Accused and Rs.8,00,000/- to the Accused. Though according to PW1, he had withdrawn Rs.6,50,000/- from his Bank account on 31.1.2013 and the balance amount was with him, his Statement of account which is at Ex.P10 goes to show that, at page No.7, there is an entry with regard to the withdrawal of Rs.6,50,000/- from his account. But once again the entry on 2.2.2013 goes to show that, a sum of Rs.6,50,000/- has been deposited to his account by way of cash and even the withdrawal of Rs.6,50,000/- through cheque No.35450 has been done by way of drawing a self cheque by PW1. In this regard, during the cross-examination of PW1, it is suggested to him that, as per Ex.P17 also, which is his Statement of Account he has withdrawn Rs.6,50,000/- through his self cheque, while a sum of Rs.6,50,000/- has been deposited by him by way of cash to his account on 2.2.2013. Further it is admitted by PW1 that, on 31.1.2013 8 C.C. No.9730/2014 there was no balance of Rs.20,00,000/- in his Bank account and that, he has produced his Bank Statement in order to show that, he has lent Rs.12,00,000/- loan to the husband of the Accused and Rs.8,00,000/- to the Accused. However it is pertinent to note that, except the entry pertaining to the withdrawal of Rs.6,50,000/- from the account of PW1 on 31.1.2013, neither in Ex.P10 nor in Ex.P17, there is entry regarding either the balance of PW1 to show that, he had Rs.20,00,000/- with him or to show that, he has withdrawn more than a sum of Rs.6,50,000/- from his account. Though in this regard it is claimed by PW1 that on 31.1.2013 he had withdrawn only Rs.6,50,000/-, the burden is once again upon him to prove before the Court, as to which is the other transaction, by virtue of which, he has deposited the same amount of Rs.6,50,000/- to his account on 2.2.2013. Therefore this raises a serious doubt in the case of the Complainant.
15. The defence of the Accused is that, the Complainant had lent only Rs.8,00,000/- to her husband in respect of which C.C.No.4043/14 came to be filed by the Complainant against her husband and according to her, in the said case a memo has been filed as per Ex.D1, which has been duly signed by the Complainant and the counsel for the Complainant and counsel for her husband who is the 9 C.C. No.9730/2014 Accused in the said case and it is stated in the said memo that, as on 1.12.2015, the Complainant has received a sum of Rs.8,50,000/- out of Rs.12,50,000/- from her husband and the balance of Rs.4,00,000/- has been agreed to be paid by her husband without fail before 30.3.2016.
16. It is also deposed by the Accused, in her evidence that, her husband had availed a loan of Rs,8,00,000/- from PW1 and he had agreed to repay the same with interest at 3% and according to her, the said sum of Rs.8,00,000/- was paid by the Complainant to her husband in the court premises itself and towards the security of the said transaction, the Complainant had taken the two cheques of her husband and one cheque belonging to her and as such the cheque at Ex.P1 has not been issued by her to the Complainant towards the discharge of any legally recoverable debt. No doubt it is admitted by DW1 that, the cheque at Ex.P1 has been issued by her to the Complainant, but it is her specific defence that, the writings on Ex.P1 do not belong to her and that the said cheques was issued by her husband to the Complainant only towards the security of the loan availed by her husband. As the Accused has specifically denied that, the writings on Ex.P1 do not belong to her, the burden is shifted to the Complainant to prove the same as per law. But in this regard no steps have been taken by the Complainant in order to 10 C.C. No.9730/2014 prove that, the writings on Ex.P1 belong to the Accused. No doubt it is a well settled principle of law that, once the signature on the cheque is admitted, it is not the material as to who has written the other contents of the cheque in view of Sec.20 of the Negotiable Instrument Act. However when the Accused has categorically taken up the defence that, she had no independent transaction with the Complainant, the burden is once again shifted in favour of the Complainant to prove the existence of any such independent financial transaction with the Accused as alleged by him in the Complaint. Moreover the Accused has also taken up a defence that, the Complainant has mis-used her blank cheque which had been given by her husband at the time of the transaction between the Complainant and himself. In such circumstance just because the signature on the cheque and the issuance of the cheque is admitted by the Accused, it does not absolve the Complainant from proving that, the cheque at Ex.P1 had been issued by the Accused towards the discharge of the legally recoverable debt. However in the present case, except the evidence of PW1 there is no other evidence on record in order to corroborate the evidence of the Complainant. Moreover the Complainant has claimed that, on 31.1.2013 he has lent a total sum of Rs.20,00,000/-, out of which Rs.12,00,000/- to the husband of the Accused and Rs.8,00,000/- to the Accused. In this regard though as per 11 C.C. No.9730/2014 Ex.D1, the Accused herself has admitted the transaction between the Complainant and her husband, the Complainant has failed to prove that, on the same day, he has lent a sum of Rs.8,00,000/- to her independently. Therefore it is clearly proved by the Accused that, the cheque in question is only a security cheque which has been given by her husband to the Complainant along with his two cheques.
17. In support of his written arguments, the counsel for the Complainant has relied upon the following decisions:-
1. In Venkatesh Prasad Vs., Subray V.Bhat, reported in 2014 (2) DCR 93,
2. In M.Nazar Vs., K.Gopinathan Pillai, reported in 2013 (1) DCR 380,
3. In A.Brahmananda Reddy VS., The State of A.P. & another, reported in 2013(1) DCR 295,
4. In Vijay Vs., Laxman & another, reported in 2013(1) DCR 625,
5. In M/s.Deogiri Transport Vs., M/s.Damodar Transport, reported in 2013(1) DCR 551,
6. In Debobrata Poddar Vs., The State of West Bengal & another, reported in 2013(1) DCR 19, 12 C.C. No.9730/2014
7. In M/s.Enpee Eathmovers Vs., M/s.
Resources International, reported in 2013(1) DCR 526,
8. In Natarajan Vs., Chinnasamy, reported in 2011(1) DCR 588,
9. In R.Raju Vs., K.Sivasamy, reported in 2012(1) DCR 242,
10. In Smt.Sanheeta Ved Vs., M/s.Iqmen Data Solutions Pvt Ltd., and others, reported in 2012(4) KCCR SN 301,
11. In K.Dinesan Vs., P.K.Narayanan & Ors., reported in 2012(1) DCR 258,
12. In Dr.B.V.Sampathkumar Vs., Dr.K.G.V.Lakshmi, reported in ILR 2006 Kar 1730,
13. In Anil Kumar M.P. Vs., M.Gopinath, reported in 2013(2) DCR 330,
14. In C.C.Alavihaji Vs., Palapetty Muhammed and another, reported in (2007)6 SCC 555,
15. In Ningegowda Vs., Y.H.Hanumantha, reported in 2012(5) KCCR SN 627.
13 C.C. No.9730/201418. Similarly in support of his written arguments, the counsel for the Accused has also relied upon the following decision:-
In K.Subramani Vs., K.Damodaranaidu, reported in (2015) I SCC 99.
19. It is pertinent to note that, before the presumption under Sec.139 of the N.I. Act is drawn in favour of the Complainant, the Complainant has to prove his source of income, from which he has allegedly advanced the loan to the Accused. Moreover when the financial capacity of the Complainant is questioned and is seriously disputed by the Accused, the onus is shifted in favour of the Complainant to prove the same by leading cogent and reliable evidence. In this regard, it is pertinent to note that, even though the Complainant in this case has produced the documentary evidence at Ex.P10, Ex.P12 to 17 so as to prove his financial capacity before the Court, admittedly there is no averments with regard to the same either in the complaint or in his affidavit and even in his IT returns he has failed to show that, he has allegedly lent a sum of Rs.12,00,000/- to the husband of the Accused and Rs.8,00,000/- in favour of the Accused. Even though in respect of the transaction with the husband of the Accused, there is compromise as per Ex.P11, there is no iota of evidence led by the Complainant in order to prove 14 C.C. No.9730/2014 his alleged transaction with the Accused. Therefore it clearly goes to show that, the Complainant had no source of income to lend a sum of Rs.8,00,000/- to the Accused and thereby he has failed to prove that, there was any legally enforceable debt payable by the Accused to him. Thus the Accused has rebutted the case of the Complainant convincingly and she has also proved before the Court that, there was no independent transaction between the Complainant and herself and as such the cheque issued by her husband in favour of the Complainant has only as a security for the loan transaction between the Complainant and himself & that time has been mis-used by the Complainant. In view of the aforesaid reasons and discussions, this Point deserves to be answered in the Negative.
20. POINT No.2:- In view of the above reasons and discussions, 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 Negotiable Instruments Act.
Her bail bond and surety bond stands cancelled.15 C.C. No.9730/2014
(Dictated to the stenographer, transcript thereof is computerized and print out taken by her, verified and then pronounced by me in open the Court on this the 30th day of June, 2016).
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the Complainant:
PW.1 : Sri.L.Mallikarjuna List of documents exhibited on behalf of the Complainant:
Ex.P-1 : Cheques; Ex.P-1(a) : Signature of the accused; Ex.P-2 & 3 : Bank memos; Ex.P-4 : Office copy of the legal notice; Ex.P-5 & 6 : Postal receipts; Ex.P-7 : Letter; Ex.P-8 : Reply notice; Ex.P-9 : Complaint; Ex.P-10 : Statement of Account; Ex.P-11 : Joint memo; Ex.P-12 : Subscriber Account Statement; Ex.P-13 to 16 : IT returns; Ex.P-17 : Bank statement.
List of witnesses examined on behalf of the accused:
D.W-1 : Smt.Usha R.Rao List of documents exhibited on behalf of the accused:
Ex.D.1 : Certified copy of the Joint Memo (SARASWATHI.K.N), XVI ACMM, Bengaluru City.16 C.C. No.9730/2014
30.06.2016 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.
Her bail bond and surety bond stands cancelled.
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.
17 C.C. No.9730/2014