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2022 DIGILAW 1439 (KAR)

Jalaja @ Jalajakshi v. G. venkta Durga Sarojini

2022-11-07

H.B.PRABHAKARA SASTRY

body2022
ORDER 1. The present petitioner was accused in C.C.No.50961/2014, in the Court of the learned XIV Addl.Chief Metropolitan Magistrate, Bengaluru, (hereinafter for brevity referred to as the 'trial Court'). By its judgment dated 26.02.2016, the trial Court convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as 'N.I.Act') and was sentenced accordingly. 2. The summary of the case of the complainant in the trial Court was that the complainant and the accused and one Suresh, son of accused, were known to each other for the past ten years. The accused and his son approached the complainant for financial assistance of Rs. 5 lakhs for construction of the third floor in their building and also for alteration of the ground to second floor. As the amount was huge, the complainant sought three months time to arrange for the funds. In the first week of January 2009, the complainant managed to arrange the loan and has paid a total sum of Rs. 4,75,000/-. The amount was paid by the complainant from the compensation amount received by her in MVC.No.3237/2001 and MVC.No.3238/2001. The complainant had the LIC policy in her name and she surrendered and got back Rs. 18,853/-. The accused assured the complainant that she would repay the loan amount after the completion of construction and the property given on lease or within a period of one year whichever is earlier. The complainant had stated that the loan amount was given to the accused on several dates by cheque dated 22.06.2010 bearing No.156428 for a sum of Rs. 85,000/-, cheque dated 03.12.2009 bearing No.156422 for a sum of Rs. 65,000/-, cheque dated 19.01.2010 bearing No.156424, for a sum of Rs. 7,000/- and cheque dated 31.03.2010 bearing No.156426, for a sum of Rs. 10,000/-and the remaining amount was paid in cash, for which the complainant has received the acknowledgement dated 13.08.2010 and 15.08.2010 from the accused. The complainant had also received the post-dated cheques duly signed by the accused and her son. After the completion of the stipulated period, the accused and her son did not repay the amount. Finally, to discharge the outstanding liability, the accused has issued five cheques in question, bearing No.531765, for a sum of Rs. 25,000/-, No.964188, for a sum of Rs. 10,000/-, No.964200, for a sum of Rs. 10,000/-, No.964181, for a sum of Rs. After the completion of the stipulated period, the accused and her son did not repay the amount. Finally, to discharge the outstanding liability, the accused has issued five cheques in question, bearing No.531765, for a sum of Rs. 25,000/-, No.964188, for a sum of Rs. 10,000/-, No.964200, for a sum of Rs. 10,000/-, No.964181, for a sum of Rs. 5,000/- and No.531764, for a sum of Rs. 25,000/-, all dated 27.07.2013, drawn on Indian Bank, Cantonment Branch, Bengaluru. One cheque bearing No.162284, dated 27.07.2013, for a sum of Rs. 4,00,000/- was issued by the accused's son drawn on Vijaya Bank, HBR Layout Branch, Bengaluru. When the said cheques were presented for encashment, the same were returned on 29.07.2013 with an endorsement ' funds insufficient'. The complainant got issued the notice to accused on 24.08.2013 informing them about the dishonour of the cheques and calling upon them to make payment within fifteen days from the date of receipt of the notice. The accused has not repaid the same, which constrained the complainant to institute a criminal case against the accused in the trial Court for the offence punishable under Section 138 of N.I.Act. 3. Since the accused pleaded not guilty, charges were framed against the accused for the alleged offences. 4. The complainant in order to prove her case, got herself examined as PW-1 and got marked twenty six documents from Exs.P-1 to P-26. On behalf of the accused, the accused got herself examined as DW-1 and got marked eight documents from Exs.D-1 to D-8. 5. After hearing both side, the trial Court by its impugned judgment dated 26.02.2016, convicted the accused for the offence punishable under Section 138 of N.I.Act and sentenced her accordingly. 6. Challenging the said order, the accused has preferred an appeal in Criminal Appeal No.25018/2016, before the learned XXVIII Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru, (hereinafter for brevity referred to as 'Sessions Judge's Court), which by its judgment dated 07.12.2017, dismissed the appeal by confirming the judgment of conviction passed by the trial Court. It is against these judgments of conviction, the accused has preferred this revision petition. 7. Records from the trial Court and Sessions Judge's Court pertaining to the matter were called for and the same are placed before the Court. 8. It is against these judgments of conviction, the accused has preferred this revision petition. 7. Records from the trial Court and Sessions Judge's Court pertaining to the matter were called for and the same are placed before the Court. 8. In view of the fact that the learned counsel for the respondent (complainant) failed to appear before this Court on several dates of hearing, this Court by its reasoned order dated 19.09.2022, appointed learned counsel Smt.P.V.Kalpana, as Amicus Curiae for the respondent/complainant to represent her in this case. 9. Heard the arguments of learned counsel for the petitioner and learned Amicus Curiae for the respondent. Perused the materials placed before this Court. 10. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court. 11. After hearing the learned counsel from both side, the only point that arises for my consideration is,- 'Whether the impugned judgments suffer from perversity, illegality, impropriety warranting any interference at the hands of this Court'. 12. The learned counsel for the petitioner/accused in his argument submitted that it is not in dispute that the parties to the litigation were known to each other and that the cheques in question were drawn by the accused, which came to be dishonoured for the reason of insufficiency of funds when presented for their realisation by the complainant. He also submitted that the issuance of legal notice by the complainant demanding the payment of the cheque amount is also not in dispute. He further submitted that, however he disputes that there was no legally enforceable debt payable by the accused towards the complainant as on the date of presentation of the cheques. The complainant herself in her cross-examination has admitted that the amount that were due were paid to her as per Exs.D-1 and D-1(a). The cheques in question were blank cheques collected by the complainant while giving small handloans for construction of third floor of the building by the accused and those cheques were misused by the complainant. He also submitted that there is no reason for giving five cheques for different sums on the same day by the accused. The cheques in question were blank cheques collected by the complainant while giving small handloans for construction of third floor of the building by the accused and those cheques were misused by the complainant. He also submitted that there is no reason for giving five cheques for different sums on the same day by the accused. Finally stating that the complainant had no capacity to lend such a huge amount, learned counsel submitted that both the trial Court and the Sessions Judge's Court failed to consider the said aspect which has led them to pass an erroneous judgments. 13. Per contra, learned Amicus Curiae for the respondent in her brief argument submitted that the accused has admitted that there were financial transaction between herself and the complainant. Even though PW-1 has admitted in her cross-examination that it was she who had filled her name and the date in the cheques in question, however, the same is not prohibited under N.I.Act. Finally stating that DW-1 in her cross-examination has made admissions that the entry in Ex.D-2 is with respect to payment of interest, as such, the same cannot be considered as repayment of the principle loan amount, learned Amicus Curiae submitted that the impugned judgments does not warrant any interference at the hands of this Court. 14. The complainant got herself examined as PW-1, who in her examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by her in her complaint filed under Section 200 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.'). Her statement that accused and her son Suresh were known to her and that the five cheques at Exs.P-1 to P-5 were drawn by accused and those cheques came to be returned unpaid when presented for realisation for the reason of insufficiency of funds as per the Banker's endorsements at Exs.P-6 and P-7, have not been denied or disputed from the accused side. Further the evidence of PW-1 that after dishonour of the cheques, she got issued a legal notice through her counsel upon the accused as per Ex.P-8 demanding repayment of the cheque amount and the same was served upon the accused as could be seen from the postal receipt, postal track information and settled reply at Exs.P-9, P-10 and P-11 respectively, also have not been denied or disputed from the accused side. Admittedly, the cheque amount demanded by the complainant in her legal notice at Ex.P-8 has not been paid by the accused. As such, a presumption about legally enforceable debt forms in favour of the complainant under Section 139 of N.I.Act. However, the said presumption is rebuttable. 15. In the course of attempt to rebut the presumption formed in favour of the complainant, the accused has taken a specific defence both in the cross-examination of PW-1, as well in her examination-in-chief as DW-1 that the two cheques for a sum of Rs. 85,000/- and Rs. 65,000/- respectively shown to have been given by the complainant to the accused were towards the lease amount with respect to the lease of the third floor in the building said to be belonging to the accused, however, the said lease amount was returned to the complainant. But, the complainant has misused the cheques collected by her as security which has led in she filing the present complaint against the accused. However, the suggestions made from the accused side to the complainant in the cross-examination of PW-1 was not admitted as true by PW-1. Similarly, the statements made by accused, who got herself examined as DW-1 reiterating her defence, were denied in her cross-examination made from the complainant side. 16. Further the contention of the accused that the complainant had no financial capacity to lend loan amount were taken by suggesting the same in the cross-examination of PW-1, as well the accused taking the said defence even in her evidence as DW-1, however, the complainant has stated that she had received the compensation in a motor vehicle compensation claim cases i.e., in MVC.No.3237/2001 and MVC.No.3238/2001, wherein the award came to be passed on 30.04.2005. In that regard, the complainant got marked her bank account passbook at Ex.P-14, certified copy of judgment in MVC.No.3237/2001 connected with MVC.No.3238/2001, at Ex.P-15 and certified copy of the award passed in those cases at Ex.P-16. However, in her cross-examination, a suggestion was made to the effect that the compensation amount which was a sum around Rs. 2,80,000/- was withdrawn by her on the date 06.06.2006, but, the witness stated that she is not remembering the same. The attention of the witness was also drawn towards an entry to that effect in the passbook, still, the witness has stated that she does not remember the same. 2,80,000/- was withdrawn by her on the date 06.06.2006, but, the witness stated that she is not remembering the same. The attention of the witness was also drawn towards an entry to that effect in the passbook, still, the witness has stated that she does not remember the same. Since the said passbook and entries are marked as Ex.P-14 and the compensation amount said to have been credited to her account is also supported by Ex.P-17, which is a photocopy of the cheque in favour of the complainant and the challan showing the deposit of the cheque amount to her account, the same would go to show that the total amount as compensation credited to the account of the complainant was only a sum of Rs. 1,55,943/-. The relevant entry in the passbook at Ex.P-14 is shown on the date 03.05.2006. Out of the said amount, on 06.06.2006, the complainant is shown to have withdrawn an amount of Rs. 1,50,000/- leaving a balance of Rs. 7,374.98 ps. in her bank account. Further the entry in the very same bank passbook would not show that at any time during the alleged period of loan under installments, the complainant had such a huge balance to support her contention that the loan amount was a sum of Rs. 4,75,000/-. Thus, prima facie a doubt arises about the financial capacity of the complainant to lend a sum of Rs. 4,75,000/- as loan amount to the accused. This aspect both the trial Court and the Sessions Judge's Court have not analysed and appreciated in their proper perspective. Secondly, when it is the specific contention of the accused that the alleged payment of Rs. 85,000/- and another sum of Rs. 65,000/- through bank cheques in favour of the accused were only towards lease amount and the issuance and payment of those two cheques were prior to the date of lease agreement which is said to be on 01.11.2010, it was for the complainant who agreed the existence of a Lease Agreement between herself and the accused to produce cogent evidence, including Lease Agreement, to show that the recital about the cheques shown in the Lease Agreement were different than the alleged loan of Rs. 85,000/- and Rs. 65,000/- vide cheque No.156428 and cheque No.156422 respectively. 85,000/- and Rs. 65,000/- vide cheque No.156428 and cheque No.156422 respectively. The complainant who admittedly was in possession of the said Lease Agreement as a lessee under the accused, had documents with her which could have substantiated her contention. However, for the reasons best known to her, she did not produce the said documents. This also creates a doubt in the case of the complainant and makes the defence of the accused stronger to rebut the presumption formed in favour of the complainant under Section 139 of N.I.Act. The aspect that Rs. 1,50,000/- was towards the lease amount further gains support by the statement made by none else than the complainant in her cross-examination that the sum of Rs. 1,50,000/- which was lease amount has been received by her back in the presence of police. This makes the defence of the accused more probable that the alleged two cheques of Rs. 85,000/- and Rs. 65,000/-, amounting to Rs. 1,50,000/- may not be towards the alleged loan amount, but, was towards the lease amount payable by the complainant to her landlady i.e., the accused, which lease amount, as admitted by the complainant (lessee), she had collected back in the presence of the police. This point also the trial Court and the Sessions Judge's Court have not analysed and appreciated in their proper perspective. Thirdly, the complainant who claims that she had lent a sum of Rs. 4,75,000/- to the accused, could not able to say in her cross-examination as to how much of the amount she had paid in cash as loan and when the amount in cash were paid to the accused. Had really the complainant paid such a huge amount as loan to the accused, she was expected to either maintain some documents in that regard or at least should remember as to when the alleged installments in the loan were given to the accused and of what amount. On the other hand, though she denied a suggestion that as shown in Exs.D-1 and D-2, the accused has repaid their dues towards the complainant, but, the very same witness in her initial cross-examination on 22.01.2015 has admitted that the contents in the mini-diary at page Nos.95 to 99 are in her handwriting and the signature found therein are also her signature only. The mini-diary was marked at Ex.D-1 and the relevant portion at Ex.D-1(a). The mini-diary was marked at Ex.D-1 and the relevant portion at Ex.D-1(a). A perusal of those entries in Ex.D-1 and D-1(a) go to show that the complainant has acknowledged the receipt of several small amounts of Rs. 5,000/- on seven occasions and Rs. 8,600/- on one occasion, thus, a sum of Rs. 43,600/- is shown to have been received by her. The same would go to show that the accused has repaid some amount to the complainant. Thus, the alleged loan amount cannot be a sum of Rs. 4,75,000/-. However, it was for the complainant to establish that what was the actual quantum of the legally enforceable debt that was due from the accused to her. She should have shown that it was a sum of Rs. 75,000/- or more, as such, the accused was liable to pay the total amount of all the five cheques i.e., from Exs.P-1 to P-5. The complainant has not made any attempt in that regard. On the contrary, she has only stated that the entries at Ex.D-1 was with respect to another transaction. The mere statement that the same was with respect to another transaction would not exonerate the complainant from satisfying about the alleged due from the accused since the accused by leading cogent evidence both in the cross-examination of PW-1 and herself as DW-1 and also producing the documents at Exs.D-1 and D-2 could able to introduce several serious doubts in the case of the complainant both about her financial capacity to lend and also about the alleged loan transaction. Lastly, the complainant both in her complaint and in her examination-in-chief as PW-1 has stated that towards the repayment of the loan, the accused had issued five post-dated cheques. Thus, she has made it clear that the cheques at Exs.P-1 to P-5 were also dated with post-date when they were given to her. On the contrary, the very same witness in her cross-examination has stated that it was she who filled her name in those cheques and also mentioned the dates in them. This makes her very statement made in her examination-in-chief that those cheques were post-dated a false one. On the contrary, the very same witness in her cross-examination has stated that it was she who filled her name in those cheques and also mentioned the dates in them. This makes her very statement made in her examination-in-chief that those cheques were post-dated a false one. As such also, when it is the contention of the complainant that towards repayment of the loan, five post-dates cheques were given, but, the very same witness subsequently shows that they were not the post-dated cheques, but, she filled the dates in those cheques by herself makes her own case weaker about the existence of legally enforceable debt. 17. It is needless to say that, in order to rebut the presumption formed under Section 139 of N.I.Act, the accused need not have to prove his/her defence beyond reasonable doubt. Suffice if he/she makes out a case of preponderance of probability. In the instant case, the accused initially by showing that the complainant had no financial capacity to lend such a huge amount of Rs. 4,75,000/- as loan to her, then by establishing that there existed a lease transaction between herself and the complainant and that the lease amount collected by the accused as a landlady was repaid in the presence of police and further showing a doubt in the case of the complainant that she could not come up with exact amount of the alleged loan as due amount, has made out a case of preponderance of probabilities and thus has successfully rebutted the case of the complainant. However, both the trial Court and the Sessions Judge's Court have failed to appreciate these aspects. On the other hand, merely because the cheques at Exs.P-1 to P-5 were drawn by the accused and those cheques were returned unpaid when presented for realisation and also on the fact that the complainant got issued a legal notice demanding the payment of the said cheque amount, they concluded holding that the complainant has proved the guilt of the accused punishable under Section 138 of N.I.Act. Since the said conclusion of both the trial Court and the Sessions Judge's Court has now proved to be erroneous, the impugned judgments warrants interference by this Court. 18. Accordingly, I proceed to pass the following order: order [i] The Criminal Revision Petition stands allowed. Since the said conclusion of both the trial Court and the Sessions Judge's Court has now proved to be erroneous, the impugned judgments warrants interference by this Court. 18. Accordingly, I proceed to pass the following order: order [i] The Criminal Revision Petition stands allowed. [ii] The impugned judgment of conviction and order on sentence passed by the learned XIV Addl.Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru, dated 26.02.2013 in C.C.No.50961/2014, holding the petitioner herein (accused) guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, and the impugned judgment passed by the learned XXVIII Addl.City Civil and Sessions Judge, Mayo Hall, Bengaluru, dated 07.12.2017, in Criminal Appeal No.25018/2016, confirming the judgment of the trial Court, are hereby set aside; [iii] The petitioner (accused) - Smt.Jalaja @ Jalajakshi, wife of late E.Bhaskar Naidu, residing at No.47/48, Jai Jawan Street, Kalkere Main Road, Ramamurthy Nagar, Bengaluru-560 016, is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The Court, while acknowledging the services rendered by the learned Amicus Curiae for the respondent -Smt P.V.Kalpana, recommends an honorarium of a sum of not less than Rs. 4,000/- payable to her by the Registry. Registry to transmit a copy of this order to both the trial Court as also the Sessions Judge's Court along with their respective records immediately.