Bangalore District Court
Mr.S.R.Ravikumar vs Smt.Leela.N.V on 7 October, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 7th day of October - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.28779/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Mr.S.R.Ravikumar,
S/o.Rajashekarappa,
Aged about 39 years,
R/at No. 6, 1st Cross,
Raghavnagar, NTY Layout,
Mysore Road, Bengaluru-26.
(Rep. by Sri.Girish Chandra.N, Adv.)
V/S
Accused : Smt.Leela.N.V,
W/o.K.R.Venkatesh,
Aged about 46 years,
R/at. No.1098, Sri Venkatesh Krupa,
10th Main Road, 5th Cross,
Prakash Nagar, Bengaluru-21.
(Rep.by Sri.Niranjankumar.B, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 07.10.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.28779/2017
JUDGMENT
The complainant has presented the instant complaint against the accused on 29.11.2017 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.20 lakhs.
2. The some of substance of the complaint is as follows:
The complainant was proprietor of Sri.Vinayaka Motors, having its office at No.38, Moodalapalya Circle, Nagarabhavi Main Road, Bengaluru-72. The complainant was engaged in the business of sales and service of two wheeler vehicles. The complainant knows the accused through her sister Smt.Sheela. That, accused and her sister Smt.Sheela and her husband by name Mr.Nagesh are known to the complainant since from years, as Smt.Sheela was also engaged in the business of sales and service of two wheeler vehicles in the name and style of Maruthi Motors having office at No.6, Bonemill Bus Stop, Hesaraghatta Main Road, Nagasandra Post, Bengaluru-73.
The complainant has further alleged that, during the month of February, 2016, accused had approached the complainant along with her sister Smt.Sheela and requested for hand loan of Rs.25 lakhs and promised to return the same within 3 months.
Judgment 3 C.C.No.28779/2017 Complainant though was engaged in the business; he did had that much huge money to give it to accused and expressed his inability to give hand loan of that amount.
The complainant has further alleged that, thereafter, accused approached the complainant at his office along with her sister Smt.Sheela several times and requested for financial help. Finally, the accused and her sister have requested the complainant to take loan on the business of the complainant to help. Though complainant was not inclined to avail loan, he believed words and promises of the accused. The accused promised the complainant that, she will repay the loan installment along with interest and also within 3 months, she will close the account by repaying the loan amount in full. The complainant bonafide believed and trusted the accused and approached his banker viz., Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru, seeking for loan of his business in order to give money to accused. The banker upon completion of procedures had sanctioned the loan of Rs.20 lakhs and debited to his account on 03.05.2016. The accused and her sister Smt.Sheela came to know about the sanction of the said loan, though approached the complainant at his office on 07.05.2016 and requested for money. The complainant has pleaded his bank Judgment 4 C.C.No.28779/2017 statement and loan account statement were produced along with the complaint to show the sanction of loan.
The complainant has further averred that, on 07.05.2016, complainant along with his cousin Mr.Rudresh, accused and her sister Smt.Sheela together went to Sir M.Visvesvaraya Co- operative Bank Ltd., J.P.Nagar Branch, Bengaluru and withdrawn Rs.20 lakhs at his bank and near the bank itself the said amount was given to accused by way of cash in the presence of Rudresh, accused and her sister Smt.Sheela. The complainant further alleged that, accused having received the money promised for payment of loan installments and clear the loan within 3 months and accused and her sister went on away.
The complainant has further contended that, he contacted the accused during the month of May, 2016 and informed about the payment of 1st installment of loan, but she sought time and promised to clear the loan within 3 months. Thereafter, the complainant himself had paid the loan installments. The accused has failed to pay the loan installments and every month accused started giving lame excuses. As such, the complainant demanded and urged to clear the loan amount immediately. In that circumstances, the accused and her sister Smt.Sheela had sought Judgment 5 C.C.No.28779/2017 time for clearance of the loan amount and in that regard a date for payment of loan amount is fixed and accordingly, accused has issued a cheque bearing No.831091 dated:21.09.2017 for Rs.20 lakhs drawn on Bank of India, Rajajinagar Branch, Bengaluru and instructed to deposit the same for clearance of principal amount and promised to pay the interest amount at the time of closure of loan amount to the bank.
The complainant has further alleged that, believing the accused and took the said cheque from her and he himself paid the loan installments so far. On 21.09.2017, the complainant at the instruction of the accused had presented the said cheque for encashment through his banker Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru. To that effect, counter file of the bank challan for deposit of the cheque also made mentioned has produced. On 22.09.2017 the bank got issued memo stating, there is "Funds Insufficient" in the account of the accused and the said memo was received by the complainant on 26.09.2017. On seeing the same, he got utter shock and surprise.
Thereafter, the accused and her sister Smt.Sheela approached the complainant at his office and made big galata and threaten the complainant with dire consequence of filing false cases against the complainant for presenting the cheque for clearance alleging Judgment 6 C.C.No.28779/2017 that, complainant should not have present the said cheque, instead of return and taken back the cash. The complainant has not tolerated the torture and harassment of the accused and her sister, hence, he lodged complaint and with the intervention of police the accused and her sister went away from his office by made threat. In that regard, he made mentioned that, the bank memo as well as copy of the police complaint is produced along with complaint.
The complainant has further averred that, the accused after having received the huge amount from the complainant and took benefited and now escaping from the repayment of the same, on the other hand she is harassing the complainant. The complainant was struggling hard in paying monthly loan installments, hence, without any alternative complainant got issued the legal notice to the accused on 13.10.2017 through his advocate by way of R.P.A.D. The accused got issued untenable reply. Since, the accused has not paid the amount covered under the cheque. Thereby, she committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
Judgment 7 C.C.No.28779/2017
3. After receipt of the private complaint, this court took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through her counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to her, wherein, she denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P13. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by her was recorded. In support of the defence, the accused herself was examined as DW.1 and got marked Exs.D1 to D6. The DW.1 is also choosen to examine her sister by name Smt.Sheela as DW.2 and through her, she got marked Ex.D7. The DW.1 and DW.2 were subjected for cross-examination by the advocate for the complainant.
Judgment 8 C.C.No.28779/2017
7. Both side counsels have submitted their detailed written arguments, apart from adduced oral arguments through video conference.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount covered under the Ex.P1-cheque is the existence of legally enforceable debt payable by the accused?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS UNDISPUTED FACTS:-
10. On appraisal of the materials available on record as well as rival contentions raised by both the parties as well as their witness Judgment 9 C.C.No.28779/2017 the following facts are remains undisputed, hence, it does not required prove.
The fact that, complainant and the sister of accused by name Smt.Sheela are known to each other is not in dispute. The fact that, the complainant has run the two wheeler sub-dealership of selling of mother bike in the name and style of Sri.Vinayaka Motors is not in dispute. The fact that, Smt.Sheela also did sales and service of two wheeler vehicles in the name and style of Maruthi Motors and thereby known to each other is not in dispute. The fact that, the complainant has bank account at Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru as well as Janalakshmi Finance Service Ltd., Shanthi Nagar, Bengaluru is not in dispute.
The fact that, questioned cheque at Ex.p1 and signature therein is of the accused is not in dispute subject to proof of due execution and issuance to the complainant for discharge of existence of legally recoverable debt. The fact that, the hand writing of filling made in Ex.P1-cheque as well as paying slip wherein the Ex.P1-cheque was presented to the bank for encashment belongs to the complainant himself is not in dispute.
Judgment 10 C.C.No.28779/2017 The fact that, the Ex.P1-cheque as per banker slip at Ex.P3 came to be dishonored is not in dispute. The fact that, though notice dated:13.10.2017 found at Ex.P4 it was issued to the accused as per Ex.P5 postal receipt on 17.10.2017 is not in dispute. The fact that, as per Ex.P6 the accused through her advocate by denying the each and every allegation made mentioned in the complaint which attracts the Ex.P1-cheque has placed her specific defence as per Ex.P6 dated:31.10.2017 is not in dispute.
The fact that, on 25.09.2017 as found in Ex.P10 acknowledgment issued by the Assistant Sub-Inspector of Vijayanagar Police Station with regard to the un-detailed purpose made mentioned in the same lodged by the complainant against Smt.Leela, who is accused herein is not in dispute. The fact that, as per Ex.P11 on seeing the purpose of lodging complaint by the complainant herein against Smt.Sheela dated:28.09.2017 as per Ex.P11 is not in dispute. The fact that, Ex.P12 income tax returns submitted by the complainant in his individual name for the assessment year 2018-19 very particularly submitted on 19.07.2018 after filing of the present complaint before this court dated: 29.11.2017 is not in dispute.
Judgment 11 C.C.No.28779/2017 The fact that, as found in Ex.P13 the loan sanction letter issued by the Janalakshmi Finance Service Ltd., Shanthi Nagar, Bengaluru by disclosing the disbursement of loan of Rs.20 lakhs to the complainant himself on 30.04.2016 with interest at 18% p.a. is not in dispute. The fact that, as per Ex.P13 the incidental and financial charges of Rs.46,086/- were deducted out of the disbursement of loan of Rs.20 lakhs to the complainant is not in dispute. The fact that, as per Ex.P13 EMI start from 03.06.2016 and require mode of repayment ECS through bank of the complainant is not in dispute.
The fact that, Smt.Vidyashree.K.V is the wife of Mr.Shridhar is son-in-law of the accused is not in dispute. The fact that, Smt.Sheela is the sister of accused is not in dispute. The fact that, as per Ex.D1 Smt.Vidyashree.K.V got purchased two wheeler - Honda Shine motor bike/scooter through the salesman by name Mr.Ravi as found in Ex.D1 dated:30.08.2016 is not in dispute. The fact that, Ex.D2 issued by Raja Automation Pvt., Ltd., Koramangala, Bengaluru is not in dispute. The fact that, Ex.D3 is the Credit Card statement pertaining to Smt.Vidyashree.K.V as to made payment to Raja Automation Pvt., Ltd., dated:29.08.2016 is not in dispute. The fact that, as per Ex.D4 is the Summary Monthly Statement pertaining to credit card Judgment 12 C.C.No.28779/2017 of Mr.Shridhar.N.N pertaining to the date:20.08.2016 payment made to Raja Automation Pvt., Ltd., Koramangala, Bengaluru is not in dispute.
The fact that, in Ex.D5 the file cover discloses, Sri Vinayaka Motors, dealers in : All types of two wheelers, No.38, Mudalapalya Circle, Bengaluru-72 is not in dispute. The fact that, the pane No.7 of additional particulars form with the signature of Smt.Vidyashree.K.V in order to submit to the concern RTO is not in dispute.
The fact that, cheque at Ex.D7 bearing No.015267 drawn on Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru pertaining to the complainant bares his signature dated:25.05.2015 for sum of Rs.2,15,000/- is not in dispute. The fact that, the Ex.D7 cheque of the complainant got produced by the DW.2 - Smt.Sheela in connection to the business held with complainant and her is not in dispute.
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
Judgment 13 C.C.No.28779/2017 The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P13, they are:
a) Ex.P1 is the cheque bearing No.831091 issued by the accused for sum of Rs.20 lakhs dated:21.09.2017, drawn on Bank of India, Rajajinagar Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the bank challan counter foil.
d) Ex.P3 is the Bank Memo dated:22.09.2017.
e) Ex.P4 is the Legal Notice dated:13.10.2017.
f) Ex.P5 is the Postal receipt.
g) Ex.P6 is the reply notice dated:31.10.2017 issued by the accused through her counsel to the complainant counsel by denying the averments of legal notice at Ex.P3.
h) Ex.P7 is the private complaint.
i) Ex.P7(a) is the signature of complainant.
j) Ex.P8 is the statement of account pertaining to Sri Vinayaka Motors for the period from 01.05.2016 to 31.05.2016 issued by Sir M.Visvesvaraya Co-
operative Bank Ltd.
k) Ex.P9 is the Loan Repayment Schedule pertaining to Sri Vinayaka Motors.
l) Exs.P10 and P11 are the acknowledgments issued Asst.Sub Inspector of Police, Vijayanagar Police Station, Bengaluru.
m) Ex.P12 is the ITR-V pertaining to Sulekere Rajashekarappa Ravikumar for the assessment year 2018-19 and Judgment 14 C.C.No.28779/2017
n) Ex.P13 is the loan sanction letter pertaining to Sri Vinayaka Motors issued by Janalakshmi Financial Services Ltd.
The PW.1 was subjected to the cross-examination by the advocate for the accused.
12. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed her side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to her as required under Section 313 of Cr.P.C., wherein, she denied the same and gave her statement that:
"£À£Àß ªÀÄUÀ½UÉ ºÉÆAqÁ ±ÉÊ£ï ªÉÆÃmÁgï ¨ÉÊPÀ£ÀÄß ¦AiÀiÁð¢¬ÄAzÀ Rjâ ªÀiÁrzÀÄÝ, D ºÀtªÀ£ÀÄß ²æÃzÀsgï ªÀÄvÀÄÛ «zÁå²æÃ, £À£Àß C½AiÀÄ ªÀÄvÀÄÛ ªÀÄUÀ¼À PÉærmï PÁqïð ªÀÄÄSÁAvÀgÀ ¥ÁªÀw¹zÉݪÀÅ. Dgï.n.N. £ÉÆAzÀtôAiÀiÁzÀ £ÀAvÀgÀ gÀÆB10,000/- PÉÆqÀ®Ä SÁ° ¸À» ªÀiÁrzÀ ZÉPÀÌ£ÀÄß £À£Àß ¸ÀºÉÆÃzÀj ²Ã®jUÉ ¤ÃrzÀÄÝ, DPÉ ªÀÄÄSÁAvÀgÀ ¦AiÀiÁð¢UÉ PÉÆnÖzÀÝgÀÄ. D ZÉPÀÌ£ÀÄß zÀħð¼ÀPÉ ªÀiÁr ºÉaÑ£À ªÉÆvÀÛ §gÉzÀÄ ¸ÀļÀÄî ¥ÀæPÀgÀt zÁR°¹zÁÝgÉ. ZÉPï£À ªÉÆvÀÛ ¤ÃqÀ®Ä ¨sÁzÀå¼À®è."
13. That apart, to prove her probable defence, the accused was entered into witness box and filed affidavit evidence. The filing of affidavit by the accused in lieu of her probable defence is not Judgment 15 C.C.No.28779/2017 opposed by the complainant. Mere because of she not sought permission under Sections 315 and 316 of Cr.P.C., it does not a ground to out-rate reject the probable defence set out by the accused. Mere because Section 145(1) of Negotiable Instruments Act does not expressly permit the accused to file affidavit evidence, it does not mean that, the court cannot allow the accused to give her evidence on affidavit. By applying the same analogy, unless there is just and reasonable ground to refuse such permission. There is no express bar on accused to give evidence on affidavit
14. That apart, in view of the order of Hon'ble High Court of Karnataka passed in Criminal Petition No. 9331/2017 C/w Criminal Petition No.9332/2017 dated 02.07.2019 , wherein following the law laid down by the Hon'ble Supreme Court in Indo international Ltd., and another V/s. State of Maharastra & another, 2005 Crl.L.J. 208, it was pleased to held that, "The court dealing with a complaint under Section 138 of the said Act of 1881 has an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence witnesses, if any on affidavit". Hence, accept the affidavit evidence for appraisal of the defence set by the accused, there is no impediment to this court.
Judgment 16 C.C.No.28779/2017
15. The accused in her affidavit evidence has specifically contended that, her daughter Smt.Vidhyashree.K.V wish to purchase of two wheeler during the month of August, 2016 to gift the same to her husband Mr.Shridhar on the occasion of his birthday. Since, her cousin sister Mrs.Sheela was suggested the complainant name, as she was not dealing with the sales of Honda Bikes.
The accused has further contended that, accordingly, her daughter and son-in-law named above had approached the complainant to purchase bike. Complainant being a sub-dealer of Raja Automation Pvt. Ltd., negotiated with his daughter and son- in-law and bike was booked.
The accused has further contended that, the complainant raised a retail invoice in her daughter's name, further to which the payment of Rs.44,880/- was made as instructed by the complainant in favour of Raja Automation Pvt. Ltd., on 30.08.2016, thorough the daughter's of the accused credit card. On 01.09.2016 Rs.20,400/-, Rs.210/-, Rs.6,721.27 and Rs.238/- were paid through the credit card of her son-in-law. Accordingly, the said vehicle was delivered to her daughter.
Judgment 17 C.C.No.28779/2017 The accused has further alleged that, in relation to the registration of the said vehicle in the office of RTO, the expenses about Rs.10,000/- was to be borne by her daughter and in that regard, the complainant had demanded Rs.10,000/- in cash for RTO expenses, which should be made cash only. But Smt.Vidhyashree.K.V has not taken cash and cheque in her hand. Hence, her daughter called the accused to arrange the cash. On that day, instead of drawing cash from ATM, accused gave her blank signed cheque bearing No.831091 drawn on Bank of India, Rajajinagar Branch, Bengaluru to her daughter and the same was given to the complainant for RTO expenses of her daughter's above two wheeler.
The accused has further contended that, subsequently there was a business dispute between complainant and her cousin sister Smt.Sheela as a result complainant had stopped the RTO registration of all the two wheelers which were referred by her cousin sister Smt.Sheela. The complainant also denied the registration process of the vehicle purchased by her daughter. The son-in-law of the accused had made repeated requests to the complainant to complete the process of registration of the said bike with the RTO, but the same was not completed by complainant till the date.
Judgment 18 C.C.No.28779/2017 The accused has further contended that, in order to take revenge against her cousin sister Smt.Sheela and to make illegal gain, the complainant had misused her blank cheque by filling the fanciful figure up to Rs.20 lakhs and presented and got dishonoured. The complainant got issued notice to her by making illegal, absurd, false and frivolous allegations; she had no acquaintance either with the complainant or with his cousin Rudresh. She never went to Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru. Hence, she lodged complaint against the complainant in the jurisdictional Police Station.
The accused has further contended that, she is a house wife and at no point of time she was in need of any financial assistance and therefore, she had not approached the complainant seeking for financial assistance of Rs.20 lakhs for the purpose of business. The accused has specifically denied the each and every allegations made by the complainant as to the approach made by her with her sister Leela and borrowed the alleged loan and got issuance of cheque. She also contended that, there was no occasion for her to approach the complainant seeking for financial requirement, there is no legally enforceable debt against her. The complainant himself got filled the cheque Judgment 19 C.C.No.28779/2017 and inserted his name and other particulars and presented and got dishonoured. Therefore, she was replied to his notice by disclosing her defence. Since, she is not liable to pay the amount covered under the cheque, prayed for her acquittal.
16. Apart from the accused also choosen to produced the documents at Exs.D1 to D6. They are:
a) Ex.D1 is the retail invoice Honda Shine motor bike purchased by Vidyashree.K.V issued by Raja Automation Pvt. Ltd., on 30.08.2016.
b) Ex.D2 is the Raja Honda Delivery Checklist.
c) Ex.D3 is the copy of titanium Times Card Credit Card Statement pertaining to Vidhyashree.K.V.
d) Ex.D4 is the copy of my Kotak Credit Card Monthly statement pertaining to Shridhar.N.N. issued by Kotal Bank.
e) Ex.D5 is the Sri Vinayaka Motors file cover.
f) Ex.D6 is the Additional particulars details form.
g) Ex.D6(a) & D6(b) are the signatures of
Vidhyashree.K.V.
17. Apart from lead defence evidence, the DW.1 through her counsel has produced the citations and relied upon same. They are:
a) ILR 2009 KAR 2331
b) Crl.A.No.636/2019
c) 2015 (2) KCCR 1115
d) 2012 (3) KCCR 2057 Judgment 20 C.C.No.28779/2017
e) ILR 2008 KAR 4629
f) AIR 2010 SC 1898
g) (2006) 3 SCC (Crl) 30
h) AIR 2011 (NOC) 75 (KAR)
i) AIR 2007 NOC 2612
j) (2015) 1 SCC 99
k) Crl.A.No.2043/201
l) Crl.A.No.190/2016
m) Crl.A.No.630/2015
n) Crl.R.P.No.63/2015
o) Crl.A.No.1658/2017
18. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
19. That apart, to prove her defence, the accused got choosen to examined her sister by name Smt.Sheela as DW.2. The DW.2 orally on oath examined and she deposed that, in between 2011-
16 she was owner of Maruthi Motors two wheeler vehicle showroom. Since, 2011 she knew the complainant herein. The complainant and accused from their respective showrooms used to sell the two wheelers. The complainant in respect of the vehicle sold by DW.2 used to do the RTO registration.
Judgment 21 C.C.No.28779/2017 The DW.2 has also contended that, apart from that, the wife of complainant by name Vasanth Kumari got run Bhoomandalam chits registered business, wherein, the accused was subscriber. For that reasons there was monetary transaction held between complainant and DW.2. Whenever there is shortage of two wheelers in the showroom of complainant, he used to purchase TVS two wheeler motor bikes from the showroom of her. By that time, she was not received money from the complainant, but he gave cheque bearing No.015267 for sum of Rs.2,15,000/- in the year 2015 and she produced the same before this court and got marked at Ex.D7. She also identified the signature of the complainant and got marked the same as Ex.D7(a). The complainant informed her that, should not submit the said cheque for encashment. Till the day the complainant had not paid the amount covered under the Ex.D7 cheque to her. Whenever she asked him to pay the amount covered under Ex.D7 cheque, he got prolonged on one or other pretext then made galata with DW.2. The complainant came to home town of DW.2 wherein also made galata. That apart, he also caused trouble to her in register vehicle she sold in the office of RTO for the purpose of registration.
Judgment 22 C.C.No.28779/2017 The DW.2 also stated that, as alleged by the complainant in the year 2016 she and accused were not asked the loan of Rs.25 lakhs from the complainant. In the month of August, 2016, the daughter of the accused approached her to purchase Honda Shine motor bike, then she told her to purchase with complainant and send Smt.Vidhyashree.K.V with him. Since, she has not sell Honda Shine motor bike and Smt.Vidhyashree.K.V was the causing she sent her with complainant to purchase the said two wheeler. Sometimes, the complainant got registered the vehicles sold by DW.2 in the RTO office, sometimes she gave DD and sometime she gave cheque for making payments. When Smt.Vidhyashree.K.V got purchased motor bike with complainant, she was lack of Rs.10,000/-, she gave the accused signed blank cheque to the complainant for making payment. The complainant got filled the said cheque by mentioning amount of Rs.20 lakhs and after he presented it to his banker, the accused contacted her and informed the said fact. Later, the DW.2 since the accused gave the said cheque to the complainant on her reference, she went to the complainant for enquired, but he was not available. Before that, the complainant against the accused and DW.2 by alleging they have did galata lodged complaint.
Judgment 23 C.C.No.28779/2017 The DW.2 has further deposed that, complainant when he purchased site at Magadi Road, had informed her that, by availed loan from Janalakshmi Bank of Rs.20 lakhs, he purchased the said site. In order to borrow loan, he told her that, he mortgaged his property at Sarjapura. The complainant shown her the property purchased at Magadi Road. The accused was no need to borrow the loan of Rs.20 lakhs; she is residing in her own house. As alleged the accused and DW.2 not went to Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru to borrow loan. After the galata held with complainant, he not registered two wheeler of Smt.Vidhyashree.K.V in the RTO Office. Smt.Vidhyashree.K.V only liable to pay Rs.10,000/- to the complainant, but he mentioned more amount in the cheque of the accused and submitted to bank, it was informed by accused to DW.2. The accused through DW.2 got marked Ex.D7. It is:
a) Ex.D7 is the cheque bearing No.015267 dated:25.05.2015 for Rs.2,15,000/- drawn on M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru issued by accused concern to DW.2 concern.
The DW.1 and DW.2 were subjected to the cross- examination by the advocate for the complainant.
20. As per Sections 118 and 139 of Negotiable Instruments Act coupled with the decisions cited supra, it made clear that, the Judgment 24 C.C.No.28779/2017 initial statutory presumption shall be drawn in favour of complainant. Accordingly, the initial statutory presumption favors of complainant that, for discharge of existence of legally recoverable debt, the accused got issued the questioned cheque to the complainant unless and until contrary prove. There is clear rider on those sections, thereby created initial burden on the accused to rebut the case of complainant as well as statutory presumption. If the accused able to rebut the case of complainant then, it would be reverse burden on the complainant to prove his case beyond the reasonable doubt. In the backdrop, it requires to appreciate the materials available on record coupled with oral as well as documentary evidence.
21. It is significant fact to note that, immediately after dishonour of the cheque at Ex.P1 as per the banker slip at Ex.P3, the notice at Ex.P4 was issued by the advocate for the complainant to the accused and the same were served on accused. The accused immediately got replied the same by denying the each and every allegation made in the legal notice and placed her defence under which compelling circumstances questioned cheque in blank came to the possession of the complainant were narrated and whatever the defence placed by the accused by way of cross- examining the PW.1 as well as placed through the DW.1 and Judgment 25 C.C.No.28779/2017 DW.2 were already taken in the reply notice at Ex.P6. From which, it made clear that, the accused with strong consistence defence from inception till fag end has attack on the claim of complainant. Therefore, it made clear that, immediately after issuance of legal notice she got replied at Ex.P6 and denied the liability emerged from the Ex.P1. Therefore, she not paid the amount covered under the cheque at Ex.P1 and she contended it is not the existence of legally recoverable debt.
22. After mark the appearance of the accused in the present case while record plea, she categorically denied the allegations made against her. That apart, she choosen to cross-examine the PW.1 and placed her defence by way of suggestion to PW.1 coupled with documents produced by the complainant, she relied and suggested. That apart, she and her witness got examined as DW.1 and DW.2 and produced the documentary evidence at Exs.D1 to D7, which contradicts the very case put forth by the complainant in avoid the liability alleged to be emerged from Ex.P1-cheque.
23. It is require to appreciate the probable defence of the accused. It is the specific defence of the accused that, her daughter on the occasion of the birthday of her son-in-law, she Judgment 26 C.C.No.28779/2017 wishes to purchase Honda Shine two wheeler motor bike; therefore, she approached her cousin sister Smt.Sheela, who is examined as DW.2. Since she not the dealer of Honda Shine two wheeler motor bike; therefore, the DW.2 had referred her to the complainant as he is the sub-dealer of Honda Shine two wheeler motor bike. Accordingly, from the reply at Ex.P6 as well as specific defence made from accused as well as DW.2, they have specifically stated that, the daughter of accused had booked a motor bike with the complainant and the complainant had raised retail invoice in the name of his daughter for payment of Rs.44,880/-. In that connection from the credit card of Smt.Vidhyashree.K.V and Shridhar, they have paid the value of motor bike. Since, the complainant was doing registration of the motor bike in the RTO for bare expenses of Rs.10,000/- from the daughter of the accused since, she had no money at that time her instructions the accused gave signed blank cheque at Ex.P1. On account of some disputes between complainant and Sheela, he did not complete the RTO registration even stop doing RTO registration of vehicle sold by Sheela also. The said complainant by misusing the said cheque given by the accused in blank to the complainant got filled the same in his hand writing by mentioning huge amount of Rs.20 lakhs, got dishonoured and filed the false Judgment 27 C.C.No.28779/2017 case. She not requested and borrowed the alleged loan and no need to borrow the said huge sum. In order to show that, her daughter had purchased two wheeler vehicle, she choosen to produced the retail invoice at Ex.D1. On going through the Ex.D1 it discloses, Smt.Vidhyashree.K.V the daughter of the accused got purchased Honda Shine two wheeler motor bike from salesman mentioning the name Ravi. The accused and DW.2 specifically stated that, the complainant has sold the said motor bike to his daughter. But the DW.1 during her cross-examination when suggestion was made to him that:
"DgÉÆæAiÀÄ ªÀÄUÀ¼ÀÄ «zÁå²æà £ÀªÀÄä°è ¢éZÀPÀæ ªÁºÀ£ÀªÀ£ÀÄß 2017 gÀ°è Rjâ ªÀiÁrzÁÝgÉAzÀgÉ ¸ÀjAiÀÄ®è."
24. At the earliest, the accused by way of cross-examining the PW.1, as suggested that, her daughter got purchased Honda Shine two wheeler motor bike from the complainant in the year 2017. But the PW.1 for the reasons better known to him, despite he sold the said Honda Shine two wheeler motor bike as per Ex.D1 retail invoice, he denied the same. The Ex.D1 also discloses his name. No doubt, the said Ex.D1 discloses, the seal of Raja Automation Pvt. Ltd., Koramangala, Bengaluru. During the course of cross of PW.1, he deposed that:
Judgment 28 C.C.No.28779/2017
"£Á£ÀÄ ¹°PÁ£ï ºÉÆAqÁ ªÀÄvÀÄÛ ¥Á¥ÀÅ®gï §eÁeï
ºÀAaPÉzÁgÀgÀ CrAiÀÄ°è, G¥À-ºÀAaPÉzÁgÀ£ÁVgÀÄvÉÛãÉ. £ÀªÀÄä°è
¢éZÀPÀæ ªÁºÀ£À Rjâ¹zÀ ªÁºÀ£À¢AzÀ D£ï gÉÆÃqï
¸ÀA§AzÀs¥ÀlÖAvÉ rr vÀgÀ®Ä ºÉüÀÄvÉÛêÉ. CªÀgÀ §½ PÉærmï PÁqïð EzÀÝ°è CzÀgÀ ªÀÄÄSÁAvÀgÀªÀÅ ºÀtªÀ£ÀÄß ¹éPÀjøÀÄvÉÛêÉ."
25. The above testimony of PW.1, he categorically admitted that, he is the sub-dealer under Silicon Honda and Popular Bajaj. He also deposed that, from who purchase two wheelers from his sub-dealership, for getting online registration, he asked them to furnish demand draft. He also submitted that, in the event of said purchasers have credit card them also used to receive money. By deposing so, the PW.1 has clearly admitted that, he was sub- dealer. When he is sub-dealer definitely, his seal separately affixed to the retail invoice does not arise. It is the dealer only use to affix signature. In order to show that, altogether differently he used to put his seal and signature other than Ex.D1, if having any document it is the complainant needs to produce, but he not choosen to produce the same. Therefore, the name of complainant is seen at Ex.D1 as salesman. Therefore, he got sold the Honda Shine two wheeler motor bike to Smt.Vidhyashree.K.V can be reflected in the Ex.D1. On going through the Ex.D2 it also discloses delivery checklist particulars.
Judgment 29 C.C.No.28779/2017 Wherein, the road tax, insurance, number plate particulars are kept in blank. From which it can make out that, despite, sold the motor bike rote tax, insurance and number plate were not arranged by the dealer. It is the complainant needs to furnish, but since he not provided those facilities, the said delivery checklist discloses in blank.
26. On going through the Exs.D3 and D4, it also made clear that, in respect of purchase of Honda Shine two wheeler motor bike by Smt.Vidhyashree.K.V, she and her husband Shridhar.N.N got paid money through their credit card in the name of the said dealer. The said factum also remains undisputed.
27. It is significant fact to note that, on production of Ex.D5 file with the printed formats of Sri Vinayaka Motors Dealers in all types of two wheelers, wherein it also found the one printed format on VOW-ID kept in blank have the 4 signatures of the daughter of the accused and 2 signatures were marked at Exs.D6(a) and D6(b). On going through the particulars it discloses, backside the caption with certificate of inspection of motor vehicle is to be done by the RTO Officers only, in order to get the registration number. Therefore, it made clear that, in the anticipation of provide registration of motor bike purchased by the Judgment 30 C.C.No.28779/2017 daughter of the accused, she gave signed blank Form at Ex.D6 to the complainant, therefore, the complainant kept the Ex.D6 in his file printed Form at Ex.D5. All other particulars which gave by the daughter of the accused in order to get register the vehicle number in the RTO office; the other particulars were not seen. Wherein, only manual page No.7 is only kept, that too, which is incomplete. Therefore, it made clear that, as per Exs.D5 and D6 the complainant only got sold the motor bike to Smt.Vidhyashree.K.V, therefore, as a part work of him to get register the vehicle in the office of RTO is kept pending, therefore, he took signature on blank format.
28. No doubt, for getting registration of vehicle in the RTO office it requires to pay money. When accused and DW.2 the said charges were not paid, but to pay the same the accused on behalf of her daughter got issued signed blank cheque. On account of production of Exs.D1 to D6, the probable defence disclosed by the accused as well as DW.2 has to be accepted that, for the purpose of bare the expenses of registration in the office of RTO, the complainant being a sub-dealer, who sold the vehicle and took the Ex.D6 Form with signed blank cheque of the accused has to be accepted. Accordingly, the same is accepted that, because of pay the expenses for the purpose of registration of vehicle of daughter Judgment 31 C.C.No.28779/2017 of the accused purchased through the complainant, she gave signed blank cheque.
29. The PW.1 though, he is the sub-dealer and sold the vehicle to Smt.Vidhyashree.K.V has denied the same for the reasons better known to him. It is significant fact to from the DW.2 that, despite, complainant purchased the vehicles from the DW.2, he gave cheque at Ex.D7, but the said amount was not paid to the DW.2 for the tune of Rs.2,15,000/- as due by him as on 25.05.2015. The production of Ex.D7 which clearly manifest that, as on 25.05.2015 itself the complainant himself was due sum of Rs.2,15,000/- to DW.2, under such circumstances, on the instance of DW.2, he gave Rs.20 lakhs loan to the accused, that too, on 07.05.2016 itself created doubt. The DW.2 has specifically alleged that, the amount payable by the complainant as per Ex.D7 is not been paid. The DW.2 has specifically stated that, after Smt.Vidhyashree.K.V got purchased the motor bike from complainant earlier he used to did RTO registration of the selling vehicle of DW.2 and undertakes to register the vehicle sold by to Smt.Vidhyashree.K.V, but, he not did so despite having receipt of signed blank cheque of the accused for payment of charges. The DW.1 and DW.2 have specifically stated that, since he stopped the RTO registration work of his daughter as well as Judgment 32 C.C.No.28779/2017 the work of DW.2, there was dispute between complainant and DW.2. The DW.1 and DW.2 has specifically deposed as such and withstood their contention. If at all, complainant did finished his part of work at least to register the vehicle of Smt.Vidhyashree.K.V in the RTO office, as he being a sub-dealer, definitely, then there may be chance of disbelieve the version of DW.1 and DW.2 as to dispute arose. The DW.2 has also clearly stated that:
"¦AiÀiÁð¢AiÀÄ ºÉAqÀw aÃn ªÀåªÀºÁgÀ £ÀqɸÀÄwÛzÀÝ, D ¸ÀA§AzÀs ºÁUÀÆ DgïnN £ÉÆAzÀtôUÉ ¸ÀA§A¢ü¹zÀAvÉ DvÀ £À£ÉÆßA¢UÉ §AzÀÄ UÀ¯ÁmÉ ªÀiÁrzÀÝgÀÄ. ¦AiÀiÁ𢠪ÀÄvÀÄÛ £À£Àß £ÀqÀÄªÉ ¸ÀĪÀiÁgÀÄ ¸ÀAzÀ¨ÀsðUÀ¼À°è ºÀtzÀ «ZÁgÀPÉÌ ¸ÀA§AzÀs¥ÀlÖAvÉ UÀ¯ÁmÉ DUÀÄwÛvÀÄÛ JAzÀgÉ ¸Àj. ¦AiÀiÁð¢ D¹Û Rjâ¹zÀ «ZÁgÀ £À£ÀUÉ ºÉýzÀÝgÀÄ. £À«Ää§âgÀ £ÀqÀÄ«£À ªÀåªÀºÁjPÀ ¸ÀA§AzÀs ZÉ£ÁßVvÀÄÛ JAzÀgÉ ¸Àj. ¦AiÀiÁð¢AiÀÄ ªÀÄ£É UÉÆvÀÄÛ. «zÁå²æà ªÀÄzÀĪÉUÉÀ §A¢zÀÝgÀÄ. «zÁå²æà ¦AiÀiÁð¢UÉ ¤¦.1 gÀ ZÉPÀÌ£ÀÄß PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ ¸ÀévÀB ªÀÄÄAzÀĪÀgÉzÀÄ, DgïnN ºÀt ¥ÁªÀwAiÀÄ §UÉÎ SÁ° ZÉPÀÌ£ÀÄß PÉÆnÖzÀÝgÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. «zÁå²æà D ZÉPÀÌ£ÀÄß PÉÆnÖzÀÝ®è, £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆæ ¸ÉÃj ¦AiÀiÁð¢AiÀÄ ¸Á® wÃgÀĪÀ½UÁV, ¤¦.1 gÀ ZÉPÀÌ£ÀÄß PÉÆnÖzÉݪÀÅ JAzÀgÉ ¸ÀjAiÀÄ®è."
Judgment 33 C.C.No.28779/2017
30. The complainant and accused has specifically contended that, they have did transaction through DW.2. Therefore, whatever the say of DW.2 being an eye witness is to be looked into. On going through the above testimony of DW.2, she categorically deposed that, in connection to the chit run by the wife of complainant as well as the matter connecting to RTO registration, the complainant came to DW.2 and made galata. The said evidence of DW.2 is not been denied by the complainant herein. Apart from that, it was supported by way of suggestion made to her that, many times with regard to money there were galata took place between complainant and DW.2 is been admitted by the complainant himself. She also deposed that, complainant told him that, he was purchased the property. Even DW.2 has deposed that, the business between complainant and her were nice. DW.2 has deposed that, she knew the house of complainant and also stated, he came to the marriage of daughter of the accused by name Smt.Vidhyashree.K.V. The DW.2 has categorically admitted that, Smt.Vidhyashree.K.V gave Ex.P1- cheque to the complainant. By making such suggestion, the complainant himself has clearly admitted that, Smt.Vidhyashree.K.V gave cheque at Ex.P1 to the complainant. That apart, the DW.2 has volunteers that, in order to pay RTO Judgment 34 C.C.No.28779/2017 expenses Smt.Vidhyashree.K.V gave signed blank cheque to the complainant. After the DW.2 has clarified that, the complainant side has made the suggestion that, Smt.Vidhyashree.K.V has not given cheque, she and accused together for clearance of loan amount got issued Ex.P1-cheque to the complainant is been clearly denied by DW.2. On the said cross-examination of DW.2 on the one hand complainant has clearly admitted that, there was dispute between complainant and DW.2 with regard to money transaction in connection to chit run by his wife as well as regarding RTO registration. The said factum is not been denied by the complainant.
31. Moreover, by way of made suggestion, the complainant has admitted that, Smt.Vidhyashree.K.V gave Ex.P1-cheque to the complainant. Even to the same, the DW.2 has gave explanation it was issued for bear RTO expenses. Though, later suggested, no such cheque were issued by Smt.Vidhyashree.K.V by making clear cut suggestion to DW.2, the complainant has clearly admitted the said cheque Smt.Vidhyashree.K.V gave complainant not by the accused. If at all, accused borrowed the loan definitely, the presence of DW.2 in issuing cheque as suggested to her by the advocate for complainant does not arise. The said evidence of DW.1 and DW.2 made clear that, it reveal the clear cut Judgment 35 C.C.No.28779/2017 transaction of purchase of 2 wheeler vehicle by the daughter of the accused as found in Exs.D1 to D6. When complainant himself has not finished got registration of the vehicle in the RTO office, as he required to do, but he failed to do despite, he took blank signed cheque of the accused for bare some expenses in RTO.
32. There may be serious allegation made by the DW.1 and DW.2 against the complainant that, his wife was running did registered chit business. In that regard, it was suggestion made to the PW.1, wherein, he categorically admitted, his wife Vasanth Kumari run Bhoomandalam chits. Though accused was serious attack on him that, wherein, also DW.2 were member. In that regard suggestion made to PW.1, but he deposed, whether DW.2 was the member or not, he does not know, only his wife knew. By deposing so, the complainant has not open up his mind as to the other monetary transaction held between complainant and DW.2 as well as DW.2 with his wife. As reproduced above, the suggestion made from the advocate for complainant to DW.2 it discloses, there was several galata were made between complainant and DW.2, as to the money transaction including chit as well as regarding RTO registration. Therefore, it appears that, complainant has not discloses, the true affairs, but projected the Judgment 36 C.C.No.28779/2017 case altogether different manner against the factual circumstances as well as the existence of documents.
33. Though, DW.1 subjected for cross-examination, wherein she categorically withstood her contention that, on 30.08.2016 she gave signed blank cheque to her daughter for the purpose of hand over to the complainant to bare the RTO registration expenses. The DW.2 who entered into witness box and faced the cross- examination also deposed in the same manner. The DW.1 and DW.2 have withstood their contention by reasserting that, questioned signed blank cheque was given by the accused to the complainant through Smt.Vidhyashree.K.V for making payment of RTO office expenses. They were categorically denied requirement of the accused to borrow the huge amount of loan of Rs.20 lakhs and made request as well as borrowed the loan as such and got issuance of cheque were categorically denied by them and withstood their contention through out the case.
34. That apart, the DW.1 and DW.2 have able to prove their probable defence coupled with extract some admission from the complainant as to knowingness of the accused, enable him to pay the huge loan of Rs.20 lakhs. The PW.1 during his cross- examination has deposed that:
Judgment 37 C.C.No.28779/2017 "DgÉÆæ vÀ£Àß ¸ÀºÉÆÃzÀj ²¯Á ªÀÄÄSÁAvÀgÀ ¥ÀjZÀAiÀÄ. DPÉ PÀÄlÄA§zÀ »£Àß¯É UÉÆvÀÄÛ. DPÉAiÀÄ ªÀÄUÀ¼À ªÀÄzÀĪÉUÉ ºÉÆÃVzÉÝ£ÀÄ. DgÉÆæAiÀÄ DzÁAiÀÄzÀ §UÉÎ UÀÉÆwÛ®è. ²Ã¯Á, DgÉÆæAiÀÄ ¸ÀºÉÆÃzÀj, gÀPÀÛ ¸ÀA§A¢üAiÉÆà K£ÉÆà £À£ÀUÉ UÉÆwÛ®è. DPÉ DgÉÆæAiÀÄ aPÀÌ¥Àà£À ªÀÄUÀ¼ÀÄ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è."
35. On going through the cross of PW.1, though he deposed, accused is the sister of DW.2. He also deposed, he knew the background of the family of accused. He also deposed, he went to the marriage of accused daughter. The DW.2 has also deposed, the complainant also went to the marriage of daughter of accused. Mere because of attended the marriage being his customer, as she purchased Honda Shine motor bike from the complainant itself not enough to repose confidence on the accused to pay the huge loan of Rs.20 lakhs. It is the complainant needs to explain financial capacity and background of her family and requirement to approach him to borrow and he needs to through her financial capacity of repayment. The testimony of PW.1 above, though he deposed, he knew the background of the family of the accused, he deposed, he does not know the income of accused. Even he deposed, he does not know whether the accused is a direct blood relative of the DW.2 or not. He deposed, he does not know that, DW.2 is the cousin Judgment 38 C.C.No.28779/2017 sister of accused. The said evidence of PW.1 creates doubt as to the knowingness of the accused, which repose confidence of him to mobilize the found by mortgage his business and borrow the loan.
36. The said testimony of PW.1 discloses that, accused is not having access with the complainant which made him to take risk to pay huge amount of loan of Rs.20 lakhs. That apart, in his further cross-examination he deposed that:
"DgÉÆæAiÀÄ ªÀÄgÀÄ¥ÁªÀwAiÀÄ ¸ÁªÀÄxÀðå £ÉÆÃr®è, PÁgÀt ²Ã¯Á gÀªÀgÀÄ £Á£ÀÄ eÉÆvÉAiÀÄ°è EzÀÝgÉ 2-3 ªÀµÀðzÉƼÀUÉ E§âgÀÄ ¸ÉÃj ¨ÁåAQ¤AzÀ ¸Á® ¥ÀqÉzÀÄ ªÀÄgÀ½¸ÀĪÀÅzÁV w½¹zÀgÀÄ. DgÉÆæUÉ gÀÆ.20 ®PÀë ¤ÃrzÁUÀ DPɬÄAzÀ AiÀiÁªÀÅzÉà zÁR¯É §gɬĹPÉÆAr®è DzÀgÉ ²Ã¯Á ªÀÄvÀÄÛ DgÉÆæ £À£Àß D¦üøïUÉ §AzÀÄ DgÉÆæ ZÉPï£ÀÄß £À£ÀUÉ ¤ÃrgÀÄvÁÛgÉ. DgÉÆæ ¤ÃrzÀ ZÉPï ¤¦.1 DVgÀÄvÀÛzÉ. DgÉÆæ ZÉPï£ÀÄß £À£ÀUÉ ¨Àswð ªÀiÁqÀ®Ä ºÉýzÀ ªÉÄÃgÉUÉ £Á£Éà ¨Àswð ªÀiÁrzÉÝÉãÉ, £ÀAvÀgÀ DPÉ ¸À» ªÀiÁrzÁÝgÉ. £À£Àß £ÉÆÃn¸ï£À°è «±ÀÉéñÀégÀAiÀÄå PÉÆÃ-D¥ÀgÉÃnªï ¨ÁåAQ¤AzÀ gÀÆ.20 ®PÀë ¸Á® ¥ÀqÉ¢®è. CzÀ£ÀÄß £À£Àß ªÀQîgÀÄ vÀ¥ÁàV £ÉÆÃn¸ï£À°è PÁtô¹zÁÝgÉ. £Á£ÀÄ zÀs£À®Qëä ¥sÉÊ£Á£ïì¤AzÀ UÀȺÀ ¸Á® gÀÆ.20 ®PÀë ¥ÀqÉ¢zÉÝ£ÀÄ. ºÀt ¤ÃrzÀ ¢£À ZÉPï DgÉÆæ¬ÄAzÀ vÉUÉzÀÄPÉÆArzÉÝãÉAzÀÄ £ÉÆÃn¸ï£À°è PÁtô¹®è. ¸ÀzÀj UÀȺÀ ¸Á®zÀ ºÀtzÀ¯Éèà DgÉÆæUÉ ¸Á®ªÁV ¤ÃrgÀÄvÉÛãÉ."
Judgment 39 C.C.No.28779/2017
37. The PW.1 though claiming to be paid loan of Rs.20 lakhs to the accused, he deposed that, he does not see the financial repayment capacity of the accused. He clarified that, the accused along with DW.2 together itself 2 - 3 years by borrow loan from bank would repay loan to the complainant. If at all, accused and DW.2 wishes to borrow loan from bank directly, they could have borrow no need to ask the complainant and as he alleged in his pleading, pressures the complainant to borrowed loan from bank on his business does not arise. Even no prudent man would choosen to do so. More categorically the PW.1 has deposed that, as alleged, he paid loan of Rs.20 lakhs to the accused admittedly, he not get any document from the accused. But he deposed that, accused and DW.2 came to his office and gave the cheque at Ex.P1-cheque. Even he not clarified, though alleged lent of loan to the accused on 07.05.2016, when the accused came to the office and got executed and issued the questioned cheque to him is also not been satisfactorily explained.
38. It is significant fact to note that, the DW.1 and DW.2 has specifically taken up the defence that, accused gave signed blank cheque to the complainant for the purpose of bare the RTO office expenses only. From the above testimony of PW.1, it also made clear that, complainant himself categorically admitted, he got filled Judgment 40 C.C.No.28779/2017 the cheque of the accused. In order to show that, accused had instructed him to fill the cheque, he not given any satisfactory explanation. At the fag end of the said consideration receipt, he categorically deposed, as allege din the reply notice recitals, he not borrowed loan from Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru for the tune of Rs.20 lakhs. That apart, he also stated that, his advocate was wrongly stated in his notice. The PW.1 has further deposed that, he borrowed loan from Janalakshmi Financial Service Ltd., for the tune of Rs.20 lakhs. Even he deposed that, he has mentioned in his notice on the date of making payment to accused, he not obtained cheque from accused. He more categorically deposed, out of the said housing loan, he gave money to the accused. The said evidence of DW.1, it goes against the pleading of complaint as well as contents of legal notice and affidavit evidence. Wherein he clearly stated and pleaded that, by mortgage his business in order to help the accused he borrowed loan from Sir M.Visvesvaraya Co- operative Bank Ltd., J.P.Nagar Branch, Bengaluru and by withdrawing money on 07.05.2016 in the said bank itself in the presence of Rudresh, accused and DW.2, he gave money to the accused.
Judgment 41 C.C.No.28779/2017
39. On going through the pleading his clear case was that, on 07.05.2016 on withdraw money from Sir M.Visvesvaraya Co- operative Bank Ltd., J.P.Nagar Branch, Bengaluru; he gave hard cash to the accused in the presence of witnesses. The said admission is also found in legal notice at Ex.P4, complaint and affidavit evidence. Contrary to the same, he deposed as reproduced above, he not borrowed loan from Sir M.Visvesvaraya Co-operative Bank Ltd., and whatever he made mentioned earlier it was wrong insertion by his advocate. Therefore, it made clear that, when he not borrowed loan from Sir M.Visvesvaraya Co- operative Bank Ltd., J.P.Nagar Branch, Bengaluru and really borrowed loan from Janalakshmi Financial Service Ltd., Shanthinagar, Bengaluru, definitely, it is him to plead and prove. It is not his say that, Janalakshmi Financial Service Ltd., is situated at J.P.Nagar, J.P.Nagar and Shanthinagar wherein, those banks and situated are far away from each other. Under such circumstances, if at all, the accused and other witnesses were came to Janalakshmi Financial Service Ltd., at Shanthinagar, Bengaluru, it is him to disclose, they were came to Shanthinagar in need to disclose they were came to J.P.Nagar and borrowed loan. The mentioning of wrong bank name, wrong place of borrowing of loan in the presence of alleged witnesses is strong Judgment 42 C.C.No.28779/2017 doubtful circumstanced made out by the accused, to disbelieve the case of the complainant. The complainant is not certain and since no such transaction is happened in between complainant and accused, that too, huge loan of Rs.20 lakhs, therefore, he is not able to demonstrate his alleged transaction. If at all, he was very deligent and did the transaction as alleged between complainant and accused in the presence of witnesses definitely, by taken up loan, he could have obtain necessary loan document. At least, he must be aware he borrowed the loan and in that bank itself by withdrawing money gave the loan, he must disclose with clear particulars. But the very pleading and say of PW.1 contradicts each other in prove his case. When he deposed, he not borrowed loan from Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru, the question of he lent to the accused in the said bank in the presence of witnesses, itself contradicts his case and which brushed out his case in entirety. From the said prima facie probable defence placed by the accused, it made clear that, the accused has successfully rebutted the statutory presumption as well as the facts and circumstances narrated and pleaded by the complainant and in its entirety the accused has attack and disproved the very case of Judgment 43 C.C.No.28779/2017 complainant. Therefore, as per Section 139 of Negotiable Instruments Act, it is reverse burden casted on the complainant.
It is well worthy to cite the decision reported in ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:
(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -
Something probable has to be brought record - Burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - Thereafter the said presumption arising under Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural even human conduct and public and private business) -
Evidence Act, 1872 - Section 114 - Presumptions of fact under".
Added to that, in a decision of AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had Judgment 44 C.C.No.28779/2017 paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".
40. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused.
41. As discussed in the earlier part the initial burden has clearly discharged by the accused and find out so many contradictions, inconsistence and irregularities in the case set out by the complainant as to the liability fixed on the accused. Thereby, the accused has successfully proved her probable defence that, whatever the amount narrated in the questioned cheque is not the existence of legally recoverable debt payable by her to the complainant. Accordingly, it is the reverse burden on the complainant to prove his case beyond the reasonable doubt by removing all suspicious circumstances created by the accused. In that backdrop, it requires to appreciate the evidence of complainant.
42. On going through the pleading of complainant, he clearly pleaded that, during February, 2016 accused along with her sister Judgment 45 C.C.No.28779/2017 Smt.Sheela requested for the loan of Rs.25 lakhs and undertakes to repay the same within 3 months. It is significant fact to note that, as and when they have alleged to be requested, the complainant admittedly, complainant had no money, therefore, he pleaded expressed his inability. Thereby, the accused has pleaded, complainant during February, 2016 had no money. Therefore, the same has to be consider that, as the complainant was financial incapable till the alleged date of making payment that is on 07.05.2016. It was the specific say of complainant that, on persistent demand and request made by the accused and her sister Smt.Sheela, he believed on their words, he approached Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru of his business borrowed loan of Rs.20 lakhs. Accordingly, he further deposed that, in the presence of his cousin Rudresh, accused and her sister Smt.Sheela went to the said Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru and withdrawn Rs.20 lakhs at his bank and very particularly stated, near the bank itself the said amount were given by him to the accused in the presence of said witnesses. The accused has clearly by cross-examining the PW.1, as demonstrated that, the complainant had not borrowed loan from Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Judgment 46 C.C.No.28779/2017 Bengaluru. Therefore, unless the said amount was in the said bank, he withdraw from the said bank in the presence of above cited witnesses gave the said money on 07.05.2016 near the said bank at J.P.Nagar itself is not been proved.
43. The PW.1 categorically deposed, he not borrowed loan from the said Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru. In that regard, his cross- examination require to be reproduce, which runs thus:
"zÀs£À®Qëä ¥sÉÊ£Á£ïì¤AzÀ gÀÆ.20 ®PÀë ¸Á® ²Ã¯Á gÀªÀgÀ ¸ÀºÉÆÃzÀjUÉ ¤ÃqÀĪÀ ¸À®ÄªÁVAiÉÄà ¸Á® ¥ÀqÉ¢zÉÝ£ÀÄ. «±ÉéñÀégÀ ¨ÁåAPï¤AzÀ ¸Á® ¥ÀqÉ¢®è. £Á£ÀÄ ¸ÀzÀj ¥sÉÊ£Á£ïì¤AzÀ D¹Û Rjâ¸À®Ä ¥ÀqÉ¢gÀÄvÉÛãÉ. D ¸ÀA§AzÀs ¨ÁåAPï£À ¸ÉÖÃmïªÉÄAmï ºÁdgÀÄ¥Àr¹zÉÝãÉ. D ¸Á® ¥ÀqÉzÀ §UÉÎ zÁR¯É ºÁdgÀÄ¥Àr¸À®Ä vÉÀÆAzÀgÉ E®è."
44. On going through the said testimony of PW.1, he categorically deposed for the purpose of give loan to the sister of Smt.Sheela, he borrowed loan from finance. He categorically deposed, he not borrowed loan from Sir M.Visvesvaraya Co- operative Bank Ltd., J.P.Nagar Branch, Bengaluru. Very particularly he deposed, he borrowed loan from said finance for the purpose of purchase property. In that regard, he produced Judgment 47 C.C.No.28779/2017 bank statement and no impediment to produce the loan document. The said testimony also reveal the fact that, he not borrowed loan from Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru and claimed to be borrowed from finance. In the later portion of cross-examination produced the Ex.P13 the loan sanction letter issued by Janalakshmi Financial Service Ltd., Shanthinagar, Bengaluru. Therefore, the Ex.P13 made clear that, the said finance situated not at J.P.Nagar and it is at Shanthinagar, Bengaluru. Though, he stated for the purpose of lent of loan to the accused, he borrowed loan, but very testimony also convince that, he borrowed loan for the purpose of purchase property. For the purpose sublet loan to others no bank of finance institution come forward to release the loan. Therefore, the factum of the complainant borrowed loan for purpose of property is to be accepted. On going through the Ex.P13 it discloses, on 30.04.2016 he borrowed the personal loan, wherein not mentioned the reason of loan given to accused. Therefore, mere say of complainant for the purpose of lent loan to the accused, he borrowed the loan as per Ex.P13 there is no means and no prudent person can do like that.
45. In the further cross-examination he deposed that, since DW.2 not gave money to the accused, he himself on 07.05.2016 Judgment 48 C.C.No.28779/2017 gave money to the accused in the denomination of Rs.500/- and Rs.1,000/-, by that time, DW.2 and her sister were also present. But his presence at the time of lent of loan to the accused, the complainant has not whispered. Therefore, it discloses, the said Rudresh along with the complainant is very much interested persons; therefore, he came and watch the proceedings. Though complainant deposed, accused, DW.2 and her husband were present; he not discloses the presence of Rudresh at the time of alleged lent of loan. Thereby, he failed to prove the alleged lent of loan. On going through the Ex.P13 loan sanction letter, it discloses, the complainant had borrowed loan on the interest at 18% p.a. But in his cross-examination he deposed that:
"£Á£ÀÄ zÀs£À®Qëä ¥sÉÊ£Á£ïì¤AzÀ 18 ¥Àæw±ÀvÀ §rØUÉ ¸Á®ªÀ£ÀÄß ¥ÀqÉ¢zÀÄÝ, DgÉÆæUÉ §rØ gÀ»vÀªÁV ¤ÃrzÉÝ£ÀÄ, PÁgÀt 2-3 wAUÀ¼ÉƼÀUÁV ªÀÄgÀ½¸ÀĪÀÅzÁV w½¹zÀgÀÄ. ZÉPï ¨Ë£ïì DzÀ £ÀAvÀgÀ £ÀªÀÄä ªÀQîjUÉ £ÉÆÃn¸ï ¤ÃqÀ®Ä w½¹zÀ §½PÀ DgÉÆæ £ÀªÀÄä PÀZÉÃjUÉ §AzÀÄ UÀ¯ÁmÉ ªÀiÁrzÀgÀÄ. D §UÉÎ £Á£ÀÄ zÀÆgÀÄ ¤ÃrzÉ£ÀÄ. DgÉÆæ PÀÆqÁ £À£Àß «gÀÄzÀÝ ªÀÄvÉÆÛAzÀÄ zÀÆgÀÄ ¤ÃrzÀÝgÀÄ."
46. The PW.1 categorically deposed that, though he borrowed loan on interest at 18% p.a. as per Ex.P13, he claimed without interest he lent loan to the accused, as she undertakes to repay Judgment 49 C.C.No.28779/2017 within 2 - 3 months. No prudent man by paying interest to the bank would not lent loan others, that too, without any interest months together for the huge loan of Rs.20 lakhs. The accused is not relative of the complainant. If at all, she was need of money as such, definitely, she could have approach the financial institutions and could have borrow the loan in her personal name, no need to request the complainant to borrow loan by mortgage his business. Normally, no prudent man would come forward to lent the huge amount of loan by mortgage his property and sublet the loan without interest is highly impossible todo so. Therefore, the version of PW.1 as to the alleged lent loan without interest, despite, he borrowed on huge interest from the private banking sector, is difficult to believe and to place reliance on his contention, the complainant has not explained before this court satisfactorily. The said testimony also discloses, after bouncing of cheque, when he approached the advocate to issue legal notice to accused, then he alleged that, the accused came to his office and made galata, therefore, he lodged complaint against her and she also lodged complaint against him. From the testimony of PW.1 it also reveals that, before issue legal notice to the accused, the accused came and made galata in his office. Then how the accused came to know about the factum of her cheque came to Judgment 50 C.C.No.28779/2017 be bounced by the complainant. Unless serve notice or message, intimation sent by the bank regarding dishonour of cheque, the accused came to the knowledge of dishonour of her cheque or misuse of her cheque would not arose. The evidence of PW.1 discloses, before issued the legal notice from the side of complainant, accused knew that, the complainant had presented her cheque for encashment. Therefore, before issue legal notice the accused came to his office made galata.
47. It is pertinent to note that, the complainant has pleaded that, after dishonour of cheque, accused and her sister Sheela came to his office and made galata, by that time, he gave complaint to the Police Station. Then on the intervention of police the accused and her sister went away from his office by made threat. It is pertinent to note that, the complainant has not discloses, on which date the accused came as such and made galata. But the said pleading discloses, after the accused and her sister came to his office made galata after he lodged complaint, the police came and intervene the matter, then she gone out. What was the compelling circumstances to the complainant to lodge complaint, he require to produce copy of the complaint, wherein made allegation against the accused. But he produced Ex.P10, the acknowledgment given by the Vijayanagar Police Station. On Judgment 51 C.C.No.28779/2017 going through the Ex.P10 it discloses, complaint was given by the complainant on 25.09.2017. The Ex.P3 bank memo disclosing the date:22.09.2017. The complainant has pleaded the said memo received by him on 26.09.2017, then under what context the accused came to the office of complainant along with Sheela and made galata, it is the complainant needs to produce the copy of complaint. The Ex.P10 - acknowledgment does not discloses, the allegation rather disclose he lodge complaint against the accused only. Therefore, no significance can be attached to the Ex.P10 - acknowledgment given by police.
48. The complainant also produced Ex.P11 - acknowledgment given by the Assistant Sub-Inspector of Police of Vijayanagar Police Station dated:28.09.2017. The said acknowledgment discloses, since so many years Smt.Sheela did vehicle business and she gave cheque to the complainant it came to be bounced, in that regard case is pending in the court. On 28.09.2017 at 2.00 p.m. the said Sheela, who is none other than DW.2 herein came to the shop of complainant and made galata without any reason and threatened that, she would not go out from his office. The said Ex.P11 also discloses, DW.2 gave cheque to the complainant, the same came to be dishonoured and wherein mentioned, the complainant has filed case against her. It is not Judgment 52 C.C.No.28779/2017 the case of complainant that, DW.2 gave Ex.P1-cheque. If at all, as he alleged, accused gave the Ex.P1-cheque, which was the cheque issued by DW.2 to the complainant is not been explained. If at all, DW.1 gave cheque as alleged in Ex.P11, which is in respect of which transaction is not been explained by the complainant. If at all, he filed any case against DW.2, definitely, it is him to disclose its particulars. There is no mentioning of the particulars of monetary transaction held between complainant and DW.2. Therefore, the Exs.P10 and P11 made it clear that, in order to threat the accused and DW.2, the complainant has filed false case in the Police Station. In order to avoid the allegation made by him against the accused and DW.2, which is subject matter of Exs.P10 and P11, he avoided to produce the complaint copy. Therefore, it also discloses, the bonafidness of complainant in doing so. The accused or DW.2 came to his office and made galata is not been proved by the complainant. If they were came to his office and have been came for asking for return the misuse cheque at Ex.P1 as no transaction as alleged by the complainant were happened.
49. The complainant has given contradictory, bald and confusion statement, contradicts to his own pleading. Though in the earlier cross-examination he admitted, he not borrowed loan Judgment 53 C.C.No.28779/2017 from Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru, only borrowed loan from Janalakshmi Financial Service Ltd., Shanthinagar, Bengaluru as per Ex.P13. In the further cross-examination he deposed that:
"DgÉÆæUÉ ¸Á® ¤ÃqÀĪÁUÀ, ²Ã¯Á ªÀÄvÀÄÛ DPÉAiÀÄ UÀAqÀ ºÁUÀÆ ªÀÄvÉÆÛ§âgÀÄ §A¢zÀÝgÀÄ. ¢£ÁAPÀB 07.05.2016 gÀAzÀÄ eÉ.¦.£ÀUÀgÀzÀ «±ÀÉéñÀégÀAiÀÄå PÉÆÃ-D¥ÀgÉÃnªï ¨ÁåAQ¤AzÀ £ÀUÀ¢ÃPÀj¹ DgÉÆæUÉ PÉÆnÖgÀÄvÉÛãÉ. D ¢£À gÀÆ.20 ®PÀë £ÀUÀ¢ÃPÀj¹PÉÆArzÉÝ£ÀÄ. £Á£ÀÄ D ¢£À PÉêÀ® gÀÆ.19,50,000/- ªÀiÁvÀæ £ÀUÀ¢ÃPÀj¹PÉÆArzÀÄÝ gÀÆ. 20 ®PÀë £ÀUÀ¢ÃPÀj¹PÉÆArzÉÝãÉAzÀÄ ¸ÀļÀÄî £ÀÄrAiÀÄÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. ¸Á® PÉÆqÀĪÁUÀ G¥À¹ÞvÀjzÀݪÀgÀ ºÉ¸ÀgÀ£ÀÄß ¸ÁQë ¥ÀnÖAiÀÄ°è PÁtô¹®è."
50. By deposing so, the PW.1 has deposed, while lent loan to accused, DW.2 and her husband and another person were came. Though he deposed 2nd time as such, he was very much silent, as to presence of one Rudresh, who is cousin of complainant. Therefore, it made clear that, though said Rudresh was not there, he unnecessarily pleaded his name. Though, the said Rudresh was very much present in the court, not choosen to examine him to prove his case. Contrary to earlier testimony, he deposed on 07.05.2016 from Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru, he withdraw money and gave it to Judgment 54 C.C.No.28779/2017 accused. He deposed on the said day he withdraw Rs.20 lakhs. He denied the suggestion only withdraw about Rs.19,50,000/-, but deposed falsely as Rs.20 lakhs. He also deposed, he not cited the witnesses' names who were present at the time of lent loan. The PW.1 has stated above as contradictory deposed to earlier his statement and contended, he withdraw money from Sir M.Visvesvaraya Co-operative Bank Ltd., J.P.Nagar Branch, Bengaluru. If he withdraws money from Sir M.Visvesvaraya Co- operative Bank Ltd., J.P.Nagar Branch, Bengaluru, on 07.05.2016, then why he earlier deposed, he not borrowed loan from Sir M.Visvesvaraya Co-operative Bank Ltd., to an extent of Rs.20 lakhs.
51. On going through the Ex.P8 his bank statement discloses, he had current account bearing No.532. On going through the Ex.P8 on 03.05.2016 sum of Rs.19,50,964/- were remitted to his account through RTGS. It is not his contention that, whatever he loan borrowed from Janalakshmi Financial Service Ltd., Shanthinagar, Bengaluru were transferred to the said account. Then how the said huge amount came to his account is also not been explained. If he not borrowed loan from M.Visvesvaraya Co- operative Bank Ltd., then through RTGS, why the said huge amount sent to his account not been explained. He categorically Judgment 55 C.C.No.28779/2017 deposed, on 07.05.2016 he withdraw Rs.20 lakhs from his bank account. On close perusal of Ex.P8 bank statement it does not discloses withdrawal of such huge amount of Rs.20 lakhs through self cheque bearing No.19867. No doubt, on the said date he withdrew Rs.20 lakhs. As per his say, he not borrowed loan from M.Visvesvaraya Co-operative Bank Ltd., then how the said money came to his account is not been explained. Inspite of withdraw by using self cheque definitely, could have directly pay to the accused by way of cheque to maintain document. But no such effort has been made. Withdraw of money from his self cheque discloses, it is for his purpose he withdraw the said money, not for the purpose of lent to accused. If at all, he lent in the presence of witness, he could have been examine the witnesses cited by him.
52. Ex.P9 is loan repayment schedule statement produced by complainant, wherein mentioned as flex cud. On going through the said statement it discloses, it is in the name of complainant. It does not disclose the name of bank. Therefore, no significance can be attached to the same. The complainant stated, he borrowed loan from Janalakshmi Financial Service Ltd., and alleged that, by withdrawing from his Sir M.Visvesvaraya Co- operative Bank Ltd., paying money to the accused. By mortgage his property borrowing loan it should be for the sake of Judgment 56 C.C.No.28779/2017 complainant alone. If at all, the said money was transferred from Janalakshmi Financial Service Ltd., to Sir M.Visvesvaraya Co- operative Bank Ltd., it is the complainant to disclose, but nothing has whispered, how separate amount has been seen in his bank statement.
53. On appraisal of the evidence of PW.1 it discloses, rather it supports the claim of complainant it creates doubt as to the genuineness of the claim put forth by the complainant. The evidence of PW.1 is contradicts his own pleading and documentary evidence. There is no corroboration in oral as well as documentary evidence of the complainant. However, the accused from inception by way of cause reply till fag end of the case went on attack on the claim of complainant and successfully made out the circumstances that, questioned cheque was given by her to the complainant in connection to the transaction held with her daughter and complainant for making payment of RTO office registration charges. On account of rift between DW.2 and complainant, complainant went on to take revenge against the DW.2 by misusing cheque of the accused and foisted the false case against the accused. If at all, the accused gave the questioned cheque definitely, it should be filled in her hand writing. Contrary to the same, the PW.1 has deposed, he himself Judgment 57 C.C.No.28779/2017 filled the questioned cheque at the instruction of accused. He utterly failed to prove that; accused gave instructions to fill the cheque. In the absence of instructions given by the accused as there is no alleged transaction held between complainant and accused, then it shall draw the inference against the complainant that, on account of his business while he sold the Honda Shine two wheeler motor bike to Smt.Vidhyashree.K.V, he took signed blank cheque for the expenses incurred for registration in the RTO office, but the same is misused by him. Even he not got registered her vehicle in her name, despite, he sold the same. The complainant went to an extent to make illegal gain by misused the questioned cheque at Ex.P1 of the accused. The accused being a woman folk, why she need the huge amount of Rs.20 lakhs is also not been satisfactorily demonstrated by the complainant. The very case of complainant from the inception of oral as well as documentary evidence is not corroborative, but contradicts each other. The evidence of PW.1 and documents does not repose any confidence, hence, the evidence of PW.1 is not trustworthy, therefore, it is not safe to relied upon. On the other hand, the accused by way of examining herself and DW.2 coupled with production of documents at Exs.D1 to D7, has destroyed the very case of complainant. Thereby, she rebutted Judgment 58 C.C.No.28779/2017 the statutory presumption as well as the facts and circumstances alleged by the complainant. Hence, the accused is entitled for benefit of doubt for acquittal.
54. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
At this stage, this court relies upon the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
"Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
55. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused Judgment 59 C.C.No.28779/2017 admits that, cheque bares her signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act -
Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
56. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.20 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to Judgment 60 C.C.No.28779/2017 rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
57. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, she is not liable to pay Ex.P1 cheque amount of Rs.20 lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and she is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken her defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant Judgment 61 C.C.No.28779/2017 has failed to prove that, accused issued the cheque for discharge of liability of Rs.20 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
58. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Ex.P1 in discharge of her legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Sections 139 and 118 of Negotiable Instruments Act in favour of the accused.
59. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, Judgment 62 C.C.No.28779/2017 accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
60. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by discharge reverse burden and made out the circumstances to draw statutory presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act in his favour. The complainant has not produced needed evidence to prove that, amount of Rs.20 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his case beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
61. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 63 C.C.No.28779/2017 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 cash security/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 October - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : S.R.Ravikumar List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank challan counter foil Ex.P3 : Bank endorsement Ex.P4 : Office copy of legal notice Ex.P5 : Postal receipt Ex.P6 : Reply notice Ex.P7 : Private complaint Ex.P7(a) : Signature of complainant Ex.P8 : Statement of account Ex.P9 : Loan repayment schedule Exs.P10 & P11 : Acknowledgments Ex.P12 : ITR-V Ex.P13 : Loan sanction letter Judgment 64 C.C.No.28779/2017
List of Witnesses examined on behalf of the defence:
DW.1 : Leela.N.V DW.2 : Sheela
List of Exhibits marked on behalf of defence:
Ex.D1 : Retail invoice
Ex.D2 : Delivery checklist
Ex.D3 : Copy of titanium times card credit card
statement
Ex.D4 : My Kotak credit card monthly statement
Ex.D5 : File wrapper cover
Ex.D6 : VOW-ID form
Ex.D6(a) & D6(b) : Signatures of Vidhyashree.K.V
Ex.D7 : Original cheque bearing NO.015267
Ex.D7(a) : Signature of PW.1
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 65 C.C.No.28779/2017
07.10.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are absent.
No representation from both side advocates, despite, web-host the case proceedings and intimate the date of pronouncement of judgment. Hence, as per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
Judgment 66 C.C.No.28779/2017 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 cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.