1 C.C.No.8890/2017 IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITAN MAGISTRATE, BENGALURU Present: Smt. HEMA PASTAPUR B.A., LL.B., XXII Addl. Chief Metropolitan Magistrate, Bengaluru. Dated this the 31st day of March 2018 C.C.No.8890/2017 Judgment under section 355 of [ACT] Complainant :- SMT. LATHA. N.C., w/o D.G. [ENTITY], Aged about 31 years, No.2, 9th B Cross, 2nd Main Road, Ramakrishnappa Layout, Nagarabhavi 2nd Stage, Malagala, Bengaluru - 560 091, Occupation:- House wife. (By Smt. [ENTITY], Advocate) V/s Accused :- SMT. PUTTAMMA, w/o [ENTITY], Aged about 40 years, 2 C.C.No.8890/2017 R/at No.28, Ramasandra Village, Sulikere Grama Panchayat, Kengeri Hobli, Bengaluru South Taluk, Bengaluru - 560 060, Occupation:- Own business. (By Shri. [ENTITY], Advocate) JUDGMENT
That, the complainant has filed the private complaint under [SECTION] of [ACT], for taking action against the accused for the offence punishable under [SECTION] of the [ACT].
That, the brief facts of the present case are as under:-
1. That, the complainant and accused are well known to each other since more than four years and the accused in pursuance of said acquaintance in the month of January 2016 had approached and requested the complainant for advancing her a sum of Rs.15,00,000/- for her personal needs and business purpose and accordingly, the complainant in the last week of January 2016 had advanced her the said amount in cash. That, the accused at the time of availing the said loan amount had agreed to repay the same on or before December 2016 and to discharge her legally enforceable debt on 16.01.2017 had issued in favour of the complainant a Cheque bearing No.682061 dated:-16.01.2017 for a sum of Rs.15,00,000/- drawn on Syndicate Bank, Ramasandra branch, Bengaluru. That, the complainant had presented the said cheque for encashment in State Bank of India, Malagala Road branch, Vijayanagar, Bengaluru and on 18.01.2017 the same was returned with the shara as 'Funds Insufficient' in the account of the accused. That, the complainant for the aforesaid acts of the accused on 24.01.2017 had issued the legal notice to her and the same was duly served upon her on 31.01.2017. That, the accused in spite of receiving the said notice had failed to comply with the terms of the same. In view of the same, the complainant has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took the cognizance for the offence punishable under [SECTION] of the [ACT] and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record, registered the case against the accused in Register No. III and issued summons to her. That, the accused in pursuance of said summons appeared before this court through her Learned counsel and she was enlarged on bail. That, the substance of accusation of the accused has recorded and read over her in language known to her and she has not pleaded guilty and claimed to be tried. That, after completion of the complainant side evidence the statement of the accused as contemplated under [SECTION] of [ACT], has recorded and read over her and she denied all incriminating evidence appearing against her.
3. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge her legally enforceable debt had issued in her favour a Cheque bearing No.682061 dated:-16.01.2017 for a sum of Rs.15,00,000/- drawn on Syndicate Bank, Ramasandra branch, Bengaluru?
2. Whether the complainant has further proved that, the said cheque was dishonoured as 'Funds Insufficient' in the account of the accused and thereby the accused has committed the offence punishable under [SECTION] of the [ACT]?
3. What order?
4. That, the complainant to substantiate her contentions has deposed herself as PW1 and got marked the documents at EXs.P1 to 10. That, the complainant to strengthen her contentions has got examined her mother Smt. [ENTITY] w/o [ENTITY] as PW2 and her husband by name Shri [ENTITY] B.G. s/o [ENTITY] as PW3 and closed her side.
That, the accused to substantiate her contentions has orally deposed herself as DW1 and not adduced any documentary evidence on her behalf and closed her side.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the [ACT] Point No.2 :- In the [ACT] Point No.3:- As per the final order for the following:-
REASONS
6. Point No.1:- It is specific contention of the complainant that, in the month of January 2016 the accused had approached and requested her for advancing her a sum of Rs.15,00,000/- for her personal needs and business purpose and accordingly, in the last week of January 2016 she advanced the said amount to her in cash.
7. That, the accused in her evidence has specifically deposed that there is no financial transaction between her and the complainant.
8. It is pertinent to note here that, the accused in support of her contentions has placed her reliance on following decisions:-
1. [PRECEDENT] wherein it has held that wherein it has held that Debt, Financial and Monetary Laws - [ACT], 1881 - [SECTION], [SECTION] and [SECTION] -
Dishonour of cheque - Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan transaction was made to appellant-accused- Presumption in favour of holder of cheque - stood rebutted - Acquittal restored.
2. [PRECEDENT] wherein it has held that where respondent-complainant fails to produce the relevant documents in support of alleged source for advancing money to the accused, the acquittal of the accused is proper.
3. M/s. [ENTITY] Exports -vs- Sharma Carpets, reported in (2009) SCC 153 wherein it has held that the accused in a trial under [SECTION] of the [ACT] has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption an accused is not expected to prove his defense beyond reasonable doubt as is expected of the complainant in a criminal trial.
4. [PRECEDENT] wherein the Hon'ble High Court of Karnataka has remanded the matter to Hon'ble XX ACMM., Bengaluru for giving an opportunity to the accused to confront certain documents to PW1.
9. It is to be noted here that, the complainant has contended that the accused in the month of January 2016 had approached and requested her for advancing her a sum of Rs.15,00,000/- and accordingly, in the last of January 2016 she advanced the said amount to her in cash. It is pertinent to note here that, the burden heavily lies upon the complainant to substantiate her aforesaid contentions with all preponderance of probabilities.
It is pertinent to note here that, the complainant in her complaint and in her examination-in-chief has not mentioned the exact dates on which the accused had requested her for advancing her said amount and when she advanced the same to her. It is significant to note here that, the complainant in her cross-examination in page No.5 at 3rd line has deposed that the accused in the month of December 2015 had requested her for advancing the amount. It is pertinent to note here that, the complainant on one hand asserts that the accused in the month of January 2016 had requested her for advancing her the said amount and on the other hand asserts that in the month of December 2015 the accused requested her for advancing the said amount. It is pertinent to note here that, from the said evidence of the complainant it clearly appears that she is not aware when the alleged transaction had occurred between her and the accused. It is pertinent to note here that, in absence of any material particulars the contentions of the complainant that the accused in the month of January 2016 had approached and requested her for advancing the said amount and in the last week of January 2016 she advanced the said amount to her in cash cannot be accepted.
10. That, the complainant in her complaint has not disclosed about her source of income. It is pertinent to note here that, the complainant has not produced here Pass book, statement of account etc., to substantiate that, in the month of January 2016 she possessed with her a sum of Rs.15,00,000/-
It is significant to note here that, the complainant in her examination-in-chief in para-3 has deposed that during the second week of January 2016 she sold her property which is situated at Herohalli village, Yeshwanthpur, Bengaluru, for a valuable sale consideration of Rs.19,20,000/-.
It is pertinent to note here that, inspite of giving an opportunity by this court the complainant has failed to produce before the court the alleged sale deed.
It is significant to note here that, the complainant in order to substantiate that she sold her said property has got examined PWs.2 and 3. It is pertinent to note here that, PWs.2 and 3 have unequivocally deposed that the complainant on 18.01.2016 had sold the said property to Sri. [ENTITY] and Smt. [ENTITY] and received a sum of Rs.9,60,000/- from each purchaser and they have signed on the said document as a attesting witnesses. It is pertinent to note here that, PW2 in her cross-examination in page No.2 at 12th line has deposed that the complainant had received the sale consideration amount from the purchaser at the end of January 2016 and whereas, PW3 in his cross-examination in page No.3 at 13th line has deposed that at the time of registration of the sale deed the purchaser have paid the sale consideration amount to the complainant. It is pertinent to note here that, from perusal of entire evidence of the PWs.2 and 3 it clearly appears that there is no corroboration in their evidence in view of the same their evidence cannot be believed.
It is significant to note here that, the complainant is claiming that she advanced the said amount to the accused without obtaining any document and has also not charged any interest on said amount. It is pertinent to note here that, the said conduct of the complainant plays a vital role. It is significant to note here that, the complainant in her cross- examination in page No.10 in para-2 at 6th line has deposed that, [PRECEDENT].
It is pertinent to note here that, the said admissions of the complainant is itself sufficient to hold that she has not advanced any amount to the accused. It is pertinent to note here that, the said admissions of the complainant it clearly reveals that the accused has been falsely implicated in present case. It is pertinent to note here that, from overall evidence of the complainant and from the evidence of PWs.2 and 3 it clearly appears that PW.1-complainant in the month of January 2016 she was not possessed with her a sum of Rs.15,00,000/- and she had not advanced the same to the accused. It is significant to note here that, the complainant has failed to prove the existence of legally recoverable debt.
11. It is pertinent to note here that, the complainant has further contended that the accused to discharge her legally enforceable debt had issued in her favour a Cheque bearing No.682061 dated:-16.01.2017 for a sum of Rs.15,00,000/- drawn on Syndicate Bank, Ramasandra branch, Bengaluru.
It is to be noted here that, the complainant to substantiate her aforesaid contentions in her evidence has got marked the Cheque bearing No.682061 dated:-16.01.2017 for a sum of Rs.15,00,000/- drawn on Syndicate Bank, Ramasandra branch, Bengaluru, at EX.P1.
12. It is pertinent to note here that, the accused in her evidence has specifically deposed that PW2 i.e., Smt. [ENTITY] was doing the chit business and in said chit business she invested a sum of Rs.9,00,000/- and Rs.5,00,000/- and she availed a sum of Rs.5,00,000/- from the said [ENTITY] and at that time she gave her four cheques, one agreement and Rs.100/- Stamp paper to the said [ENTITY].
That, the accused has further deposed that the said [ENTITY]-PW2 thereafter, failed to return her said amount of Rs.9,00,000/- and when she asked her for returning her said amount, she made a galata.
13. It is pertinent to note here that, the accused in support of her contentions has placed her reliance on following decision:-
[PRECEDENT] wherein it has held that [ACT], 1881 - Ss.[SECTION], 138, [SECTION] and 142 - Evidence to rebut presumption under S.[SECTION] - Cheque not in handwriting of accused - Significance of - Held, it strengthens defence version that cheque was not issued in favour of payee/complainant - Evidence Act, 1872, Ss.45, 3 and 4.
14. It is pertinent to note here that, the burden heavily lies upon the complainant to substantiate that the accused to discharge her legally enforceable debt had issued in her favour EX.P1. It is pertinent to note here that, as stated above the accused has taken a specific defense that the said [ENTITY] was doing chit business and she invested the said amount in said chit business and issued in her favour her four cheques and other documents. It is pertinent to note here that, though, the complainant in her cross-examination has denied that the accused was supplying milk to the house of PW2, but, EX.P6 the complaint copy produced by her reveals that PW2 had lodged the complaint against the accused and her husband by name [ENTITY]. It is to be noted here that, from the said conduct of the complainant it clearly appears that she has falsely deposed before the court. It is significant to note here that, the PW2 [ENTITY] in her cross-examination has clearly admitted that the accused was supplying milk to her house.
It is pertinent to note here that, from perusal of EX.P1 it clearly appears that the accused had signed on it in Kannada language and rest of the contents were written in English language. It is pertinent to note here that, the complainant in her cross-examination in page No.12 at 7th line has deposed that, QU FU -1 gg -1(J) Pqz U Gz MPuU DAU sAi Egv JAz zP Q vU UwgAz vg.
It is pertinent to note here that, from the said evidence of the complainant it clearly appears that she has given a evasive answer. It is pertinent to note here that, the word Uw would amount an admission of a particular fact. It is pertinent to note here that, from entire evidence of the complainant it clearly appears that the accused has not issued the cheque in question to the complainant to discharge her legally enforceable debt. It is pertinent to note here that, the accused has taken a probable and acceptable defense. It is pertinent to note here that, the complainant has utterly failed to prove the execution of the document by the accused in her favour. It is pertinent to note here that, when the complainant fails to prove the execution of the document by the accused then the presumption arises in favour of the accused that she has not issued the cheque in question in favour of the complainant. It is pertinent to note here that, in view of My above findings and without much discussion I hold that, the complainant has failed to prove that the accused to discharge her legally enforceable debt had issued in her favour EX.P1. In view of the same point no.1 is answered in the [ACT].
15. Point No.2:- It is specific contention of the complainant that, when she presented the EX.P1 for encashment in State Bank of India, Malagala Road branch, Vijayanagar, Bangaluru, on 18.01.2017 the same was returned with the shara as 'Funds Insufficient' in the account of the accused and for which on 24.01.20147 she issued the legal notice to the accused and the same was duly served upon her on 31.01.2017.
It is pertinent to note here that, the complainant to substantiate her aforesaid contentions in her evidence has got marked the Cheque return memo issued by the aforesaid Bank at EX.P2, Legal notice issued by her to the accused dated:-
24.01.2017 at EX.P3, Postal receipt at EXs.P4, 7 and 8 and Track consignment at EXs.P9 and 10.
It is to be noted here that, as discussed on point No.1, the complainant has failed to prove that the accused to discharge her legally enforceable debt had issued in her favour EX.P1 and if such being the case, the question of committing the offence by the accused under [SECTION] of the [ACT], does not arise at all. It is pertinent to note here that, in view of My above findings and without much discussion I hold that, the complainant has failed to prove that the accused has committed the offence punishable under [SECTION] of the [ACT]. In view of the same, point no.2 is answered in the [ACT].
16. Point No.3:- That, as discussed on points No.1 and 2, I proceed to pass the following:-
ORDER That, acting under [SECTION] of [ACT], the accused is acquitted for the offence punishable under [SECTION] of the [ACT].
That, the accused shall comply with provisions of [SECTION] of [ACT].
(Dictated to Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 31st day of March 2018) ([ENTITY]) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Smt. [ENTITY] w/o D.G. [ENTITY]; PW.2 : Smt. [ENTITY] w/o [ENTITY] and PW.3 : Sri. [ENTITY] s/o [ENTITY].
List of exhibits marked on behalf of complainant:-
Ex.P1 : Original cheque; Ex.P1(a) : Signature of the accused; Ex.P2 : Cheque return memo; Ex.P3 : Legal notice dated:-24.01.2017; Exs.P4, 7 and 8 : Postal receipts; Ex.P5 : Xerox copy of Delivery status report; Ex.P6 : Xerox copy of Complaint dated:- 04.03.2017 and Exs.P9 and 10 : Track consignments.
List of witnesses examined on behalf of the accused:-
DW.1 : Smt. [ENTITY] w/o [ENTITY].
List of exhibits marked on behalf of the accused:-
- Nil -
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.