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2020 DIGILAW 315 (KAR)

Poornima W/o. Venkatesh M. N. v. B. M. Ramaswamy

2020-02-03

JOHN MICHAEL CUNHA

body2020
ORDER : This appeal is directed against the judgment of acquittal dated 2.11.2016 rendered by the XXII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.24342/2015 whereby the complaint filed by the appellant (hereinafter referred to as complainant) has been dismissed and the respondent herein (hereinafter referred to as accused) is acquitted of the offence punishable under Section 138 of the N.I. Act. 2. Heard learned counsel for the appellant/complainant and learned counsel for the respondent/accused and perused the records. 3. Brief facts of the case are as follows : The complainant initiated action against the accused under Section 138 of N.I. Act on the allegation that the accused approached the complainant in the month of April, 2012 requesting for a loan of Rs.1,50,000/- to meet his financial commitments and to promote his business and again in the month of October, 2012 requesting a sum of Rs.1,50,000/and again, in the month of February, 2013 for Rs.1,00,000/and accordingly, the complainant paid a total sum of Rs.4,00,000/to the accused in cash. The accused promised to return the amount within May, 2015. Since he did not keep up his promise, the complainant approached the accused and at that time, the accused issued a cheque bearing No.797412 dated 12.8.2015 drawn on State Bank of India, Vijayanagara Branch, Bangalore, for Rs.4,00,000/. The said cheque when presented for encashment was returned with a shara ‘account closed’. The complainant issued a notice demanding payment of the cheque amount. Notice sent to the accused though was served, the accused did not comply with the demand and hence, the complainant sought prosecution of the accused. 3.2. The accused denied the charge and faced trial. In order to substantiate his case, the complainant examined himself as PW1 and produced in evidence 8 documents marked as exhibits P1 to P8. The original cheque was marked as Ex.P1, copy of the legal notice as Ex.P3, bank statement of the complainant as Ex.P8. In rebuttal, the accused examined himself as DW1 and produced in evidence 14 documents marked as exhibits D1 to D14. 3.3. Considering the said material, by the impugned judgment, the trial Court dismissed the complaint and acquitted the accused. The original cheque was marked as Ex.P1, copy of the legal notice as Ex.P3, bank statement of the complainant as Ex.P8. In rebuttal, the accused examined himself as DW1 and produced in evidence 14 documents marked as exhibits D1 to D14. 3.3. Considering the said material, by the impugned judgment, the trial Court dismissed the complaint and acquitted the accused. The trial Court was of the opinion that the complainant failed to prove that she had sufficient funds at her credit as on the date of the alleged transaction and that the complainant failed to establish that the cheque in question was issued by the accused towards discharge of debt or liability due by the accused and with this reasonings, the trial Court dismissed the complaint and acquitted the accused. 4. The learned counsel appearing for the complainant submits that the finding recorded by the trial Court are contrary to the material on record. In support of her financial capacity, the complainant has produced Ex.P8-bank statement which discloses that at the relevant time, the complainant had withdrawn substantial amount from her S.B account. The accused himself has admitted in his evidence that the cheque in question was signed and issued by him to the complainant at her house. The defence taken up by the accused is not probable. According to the accused he came to know about the loss of the subject cheques in the month of February, 2015 whereas, the account was closed only in the month of July 2015. Even in the said notice, there was no mention that on account of loss of cheque, the account was sought to be closed. These circumstances indicate that the alleged defence set up by the accused is an afterthought. Without considering any of these aspects, the trial Court dismissed the complaint, which in the circumstance of the case has led to miscarriage of justice, and thus sought to interfere with the impugned judgment. 5. Learned counsel appearing for the accused however argued in support of the impugned judgment contending that the learned Magistrate has considered every aspects of the case and on perusal of the bank statement produced by the complainant at Ex.P8 has held that as on 17.12.2012 there was only a balance of Rs.22,299/in the S.B.Account of the complainant. 5. Learned counsel appearing for the accused however argued in support of the impugned judgment contending that the learned Magistrate has considered every aspects of the case and on perusal of the bank statement produced by the complainant at Ex.P8 has held that as on 17.12.2012 there was only a balance of Rs.22,299/in the S.B.Account of the complainant. The contention of the petitioner that she was doing tailoring business and was earning substantial income has been disproved in the course of evidence as it is established that she was only a house wife and was not doing tailoring business. As such, there is no reason to interfere with the factual finding of the trial Court. 6. Further, referring to Ex.D14 copy of the letter issued to the concerned banker, the learned counsel submitted that on coming to know of the loss of cheque, a mandate was given to the Bank to close the account which clearly indicate that the complainant used the stolen cheque to lay a false claim against the accused and the trial Court having considered all these aspects in proper perspective, there is no reason to interfere with the well considered judgment of the trial Court. 7. I have given my anxious consideration to the rival submissions made at the Bar and have carefully scrutinized the material on record. 8. The specific case of the complainant is that accused approached her on three occasions requesting for hand loan and accordingly, she lent a sum of Rs.1,50,000/in the month of April, 2012, a sum of Rs.1,50,000/in the month of October, 2012 and a sum of Rs.1,00,000/in the month of February, 2013. In order to show that she had sufficient source at her disposal, she has relied on Ex.P8, the statement of accounts, which discloses that on 12.3.2012 and 13.3.2012, the complainant had withdrawn Rs.40,000/and Rs.30,000/respectively. Likewise, on 13.10.2012 and 16.10.2012, she had withdrawn Rs.25,000/and Rs.45,000/respectively from her account and on 23.2.2013, she had withdrawn Rs.35,000/from her S.B.account. 9. The trial Court, however, considering this statement has held that the amount lying to the credit of the complainant as on 17.12.2012 was only Rs.22,299/and based on this entry, the trial Court has come to the conclusion that the complainant failed to prove that she had sufficient funds at her credit as stated in the complaint. 9. The trial Court, however, considering this statement has held that the amount lying to the credit of the complainant as on 17.12.2012 was only Rs.22,299/and based on this entry, the trial Court has come to the conclusion that the complainant failed to prove that she had sufficient funds at her credit as stated in the complaint. But the entries referred to above go to show that at the relevant time, the complainant had substantial amount in her S.B. Account and the same was withdrawn by her, and as this withdrawal corresponds to the date of transaction mentioned in the complaint and it lends credence to her statement that at the relevant time, the amount was paid by her to the accused. Though there is no clear material to show that in the months of April, 2012, October, 2012 and February 2013, the complainant had withdrawn the entire amount paid to the accused, nonetheless, having regard to Ex.P8 bank statement, it cannot be said that the complainant was not in a position to mobilize the funds as stated in her evidence. There is no requirement under law for the complainant to prove that at the relevant time, she had jingling coins in her pocket. Such evidence cannot be expected especially, when the law itself presumes that she received the cheque towards discharge of the debt or liability due to her. 10. The learned Magistrate has disbelieved the evidence of the complainant considering the amount lying to her credit on 17.12.2012. Naturally, when substantial amount was withdrawn by her from time to time as on 17.12.2012, there could not have been more amount to her credit. The trial Court failed to note that even thereafter substantial amount was credited to her account and in the month of February, 2013, a sum of Rs.35,000/was withdrawn by her. This shows that the complainant had sufficient source to lend money to the complainant. In the wake of this evidence the findings recorded by the trial Court in this regard cannot be sustained. 11. Undeniably the accused was prosecuted for the offence under Section 138 of the N.I. Act. Section 139 of the N.I.Act creates a presumption in favour of the complainant when the transaction is proved before the Court of law. In the instant case, the complainant has adduced cogent evidence in proof of the transaction between her and the accused. 11. Undeniably the accused was prosecuted for the offence under Section 138 of the N.I. Act. Section 139 of the N.I.Act creates a presumption in favour of the complainant when the transaction is proved before the Court of law. In the instant case, the complainant has adduced cogent evidence in proof of the transaction between her and the accused. Though the accused has denied this transaction yet, in the course of his cross examination, he has unequivocally admitted that he had signed the cheque and had given the same to the complainant in her house. In view of this evidence, burden shifts on the accused to show that the subject cheque was not issued by him towards discharge of debt or any dues payable by him. In order to rebut the presumption, accused has taken up a plea that the cheque in question was lost and therefore, he had given a mandate to the Bank to stop payment of the aforesaid cheque. The trial Court has believed the defence and has held that the document produced by the accused at Ex.D14 has the effect of rebutting that evidence of the complainant. 12. I have considered the evidence adduced by the accused with reference to Ex.D14. In his reply as well as in his evidence, the accused has taken up a stand that he came to know about the loss of the said cheque on 4.2.2015. According to the accused, these cheques were signed and kept by him towards payment of LIC premium and Electricity bill. If, in fact, the said cheques were intended to be paid to LIC or the Electricity Board, in all probability, while signing the said cheques, the accused would have written the name of the drawee of the said cheques. But, the cheques in question are seen to have been drawn in the name of the complainant. This fact belies the defence set up by the accused. 13. In this context it is also necessary to note that though a plea was taken up before the Court that the signature and the writing on the cheque leaves were in different ink, but the same does not make any difference especially in view of the contention taken up by the accused that he had kept the said cheques for payment towards the electricity charges and the LIC premium. Assuming for the sake of arguments that the accused had kept the cheques towards payment of electricity bill or to the LIC, accused would have come to know about the loss of these cheques in the month of February itself when the Electricity bill was required to be paid for the said month or at least in the subsequent month when he would have received a demand notice for the previous month. Such evidence is not produced before the Court. On the other hand, Ex.D14 produced before the Court indicates that he submitted a letter to the Manager of State Bank of Mysore to close the account only in July 2013. It is also pertinent to note even though it is the case of the accused that the cheque leaves were lost in the month of February, 2005, there is absolutely no mention in the letter that he had issued the said letter seeking to close the account on account of loss or theft of the cheques. The letter reads as under : “Sir, am means Varshitha Enterprises holding account in your Bank an account No is 64122743191. To close the account. Cheque Nos.797421 to 797425 797412 797413 lost 797419 Yours faithfully for Varshitha Enterprises Sd/ Proprietor” 14. In this letter he has mentioned the cheque numbers as ‘797421 to 797425’ which indicates that the cheque leaves bearing the above serial numbers were returned to the Bank. But apparently when it was shown to the accused that the returned cheque book did not contain three cheque leaves, the accused appears to have later inserted these three cheque numbers i.e. 797412, 797413 and 797419 and added in the bracket as ‘lost’. This later insertion is evident to the naked eye. If the contention of the accused is to be believed, when the first two cheques written by him were lost certainly, he would not have kept another cheque bearing No.797414 in the same cheque book. This document in my view completely exposes the falsity of the defence set up by the accused. 15. In the light of above discussion, I am not inclined to accept the defence set up by the accused that the cheque in question was stolen by the complainant from the house of accused and the same has been made use of by the complainant to lay a false claim against the accused. 15. In the light of above discussion, I am not inclined to accept the defence set up by the accused that the cheque in question was stolen by the complainant from the house of accused and the same has been made use of by the complainant to lay a false claim against the accused. On the other hand, the circumstance brought out in the evidence of the complainant and especially the admission made by the accused in the course of his cross examination referred to above, conclusively establishes that the cheque in question was issued by the accused towards discharge of the debt and liability due by him to the complainant as claimed in the complaint. The evidence adduced by the complainant, in my view, is convincing and reliable to hold that the cheque in question was issued by the accused towards the repayment of loan borrowed by him. The complainant has successfully proved the ingredients of Section 138 of N.I. Act. 16. In the light of the above discussion, the finding recorded by the trial Court being preserve and opposed to the material on record are liable to be set aside and is accordingly set aside. On reappreciation of the entire material on record, I hold that the complainant has proved each and every ingredient of Section 138 of the N.I. Act thereby making out the offence alleged against the accused. 17. For the aforesaid reasons, the appeal is allowed. The impugned judgment of acquittal dated 2.11.2016 rendered by the XXII Additional Chief Metropolitan Magistrate, Bangalore, in C.C.No.24342/2015 is set aside. Consequently, the accused is held guilty of the offence punishable under Section 138 of the N.I. Act and is sentenced to pay a fine of Rs.4,50,000/. In default to pay the fine amount, the accused shall undergo S.I. for a period of one year. Upon realization of the fine amount from the accused, an amount of Rs.4,25,000/shall be paid to the complainant and the rest of the amount shall be forfeited to the State.