Bangalore District CourtSri.Chetan vs Smt.Jayamma on 5 February, 20221          C.C. No.24663/2019 Judgt.\n\n\n  IN THE COURT OF THE XXI ACMM, BENGALURU\n\n     Dated: This the 05th day of February, 2022.\n\n                           Present:\n\n              Smt. Reshma H.K., B.A.,LL.B.,\n                 XXI ACMM, Bengaluru\n\n                    C.C.No.24663/2019\n    Complainant       : Sri.Chetan,\n                        S/o Venkojirao.,\n                        Aged about 32 years,\n                        R/at: #II 1095, 21st Main,\n                        21st Cross, Shriganda Kaval,\n                        "D" Group Layout, Nagarabhavi,\n                        Bengaluru - 560072.\n\n                                     (By Sri.K.B., adv.)\n                               V/s\n    Accused           : Smt.Jayamma,\n                        W/o Tirumalagouda,\n                        Aged about 65 years,\n                        Kumri Narayanapur,\n                        At/Post Tallikatte,\n                        Tq-Bhadravati - 577301,\n                        Dist-Shivamoga.\n                                     (By Sri.R.G., Adv.)\n\n                        JUDGMENTThis is the complaint filed by the complainant undersection\n\n200of Cr.P.C. against the accused for the offence punishable\n\nundersection 138of Negotiable Instruments Act and to take\n\ncognizance of the offence to punish the accused in accordance\n\nwith law.2          C.C. No.24663/2019 Judgt.2.    The factual matrix of the complaint is that the complainant\n\nand accused are well known to each other as both are belongs to\n\nsame native i.e., Bhadravati. With this acquaintance, during the\n\nfirst week of March 2018 the accused has approached the\n\ncomplainant and sought for a hand loan of Rs.5,00,000/- to clear\n\nhis housing loan. Accordingly, complainant has paid the said\n\namount in two occasions, in March Second Week of 2018 paid\n\nRs.2,00,000/- and March Last Week of 2018 paid Rs.3,00,000/- by\n\nway of cash to the accused and also accused assured that he will\n\nrepay the said amount within one year. Further the case of the\n\ncomplainant is that, after repeated request and reminders made\n\nby the complainant, the accused has issued a cheque bearing\n\nNo.746164 dated:19.02.2019 for an amount of Rs.5,00,000/-\n\ndrawn on Canara Bank, Channagiri Road Branch, Bhadravathi.3.   Further, as per the accused instructions, the complainant\n\nhas presented the above said cheque for encashment through his\n\nbanker i.e., Canara Bank, Nrupathunga Road Branch, Bangalore,\n\nbut to the shock and surprise of the complainant said cheque\n\nreturned as 'Funds Insufficient' as per the bank memo\n\ndated:22.02.2019. Thereafter, the complainant issued Legal\n\nnotice dated:21.03.2019 to the accused through R.P.A.D calling3          C.C. No.24663/2019 Judgt.upon him to pay the amount covered under the cheque within\n\nthe stipulated period and the same was served to the accused on\n\n25.03.2019. Despite of service of summons, accused failed to\n\nrepay the borrowed amount. Hence, the complainant filed the\n\npresent complaint against the accused for the offence punishable\n\nundersection 138of Negotiable Instrument Act.4.       This court after perusing records, cognizance of the offence\n\nwas taken and there on sworn statement of the complainant was\n\nalso recorded. The criminal case has been registered against the\n\naccused for the offence punishable undersection 138of N.I. Act.5.       Upon service of summons, accused appeared through her\n\ncounsel and enlarged on bail. Thereafter, the court has recorded\n\nthe plea of the accused and the accused not pleaded guilty of the\n\noffence and claims to be tried. Hence, the case was posted for\n\ntrial.6.       The complainant in order to prove his case, he examined\n\nhimself as PW-1 and got marked 06 documents i.e., Ex.P-1 to\n\nEx.P-06. Original Cheque marked as Ex.P.1, Signature of accused\n\nmarked as Ex.P.1(a), Return Memo marked as Ex.P.2, Legal Notice\n\nmarked as Ex.P.3, RPAD Postal receipt marked as Ex.P.4, Postal4             C.C. No.24663/2019 Judgt.Acknowledgement marked as Ex.P.5 and Medical Certificate\n\nmarked as Ex.P.6.7.    After completion of the evidence of complainant, the\n\nsubstance of the evidence has been read over and explained to\n\nthe accused undersection 313of Cr.P.C. the accused denied the\n\nincriminating evidence available against her and she did not\n\nchoose to lead evidence on her behalf.8.    Heard arguments and perused the materials placed before\n\nthe court. The counsel for complainant relied on the following\n\ndecisions;1. ILR 2019 KAR 4932. AIR 2018 SCC 31739.    The advocate for accused also relied on the decision\n\nreported     in     (2019)   5   SCC      418     (Basalingappa         V/s\n\nMudibasappa).10.   The following points would arise for consideration;1.         Whether the complainant proves that\n             the     accused     issued   cheque       bearing\n             No.746164 dated:19.02.2019 for the\n             legally         enforceable          debt         of5          C.C. No.24663/2019 Judgt.Rs.5,00,000/-, in favour of complainant\n           and      it   was   presented         within    the\n           validity period and same is returned\n           unpaid         on    account      of         "Funds\n           Insufficient" and thereby caused the\n           dishonor of cheque and inspite of legal\n           notice,       the   accused    fail     to     make\n           payment and thereby committed an\n           offence punishable undersection 138of Negotiable Instrument Act?2. What Order?11.   My findings on the above points are as under:-Point No.1: In the "Negative"Point No.2: As per the final orders for the\n                       following:REASONS12.   Point No.1:On over all perusal of the oral and documentary evidence\n\nadduced by both the parties, it reveals that the case of the\n\ncomplainant is that during the first week of March 2018 the\n\naccused has approached the complainant and sought for a hand\n\nloan of Rs.5,00,000/- to clear his housing loan. Accordingly,\n\ncomplainant has paid the said amount in two occasions, in March\n\nSecond Week of 2018 paid Rs.2,00,000/- and March Last Week of6            C.C. No.24663/2019 Judgt.2018 paid Rs.3,00,000/- by way of cash to the accused and also\n\naccused assured that she will repay the said amount within one\n\nyear. In order to repay the said amount,the accused has issued a\n\ncheque bearing No.746164 dated:19.02.2019 for an amount of\n\nRs.5,00,000/-. On the other hand, the contention of the accused\n\nis that, she dont know about the complainant and she has not\n\ngiven Ex.P.1/Cheque to one Vasanthamma with respect to chit\n\nbusiness.       Further contended that accused colluding with\n\nU.Kumar and Vasanthamma has filed the present case by\n\nmisusing      the   Ex.P.1   cheque,    which    was    issued    to   said\n\nVasanthamma with respect to chit business.13.      Further, in order to prove the guilt of the accused for\n\noffence undersection 138of Negotiable Instruments Act, 1881,\n\nthe complainant is required to prove the following ingredients\n\nbeyond reasonable doubt:(i)     Accused had issued a cheque in favor of complainant.(ii) The said cheque has been issued in discharge of a\n         debt or liability and is for consideration.(iii) The said cheque has been dishonored on presentation.(iv) Accused has failed to make payment of cheque amount\n       within statutory period of service of legal notice served to\n       him by complainant.7          C.C. No.24663/2019 Judgt.14.   The above ingredients of offence punishable undersection 138of NI Act are required to be considered with\n\nreference tosec. 118and139of the Act. It is worth to note\n\nthat according tosection 118and139of the Act, rebuttable\n\npresumptions are available in favour of the complainant to the\n\neffect that once the issuance of cheque, its dishonor is proved,\n\ncourt has to presume that the same has been drawn for\n\nconsideration and it is issued for legally enforceable debt or\n\nliability. The onus of proof to rebut this presumption lies on the\n\naccused. Therefore, if the accused is able to raise a probable\n\ndefense which creates doubts about the existence of a legally\n\nenforceable debt or liability, the prosecution can fail.15.   With the above backdrop of statutory presumptions, on\n\nperusal of the evidence adduced by both the parties it reveals\n\nthat in ordered to prove the case of the complainant, the\n\ncomplainant examined himself as PW.1 and got marked the\n\ndocuments at Ex.P.1 to Ex.P.6. On the other hand, in order to\n\nestablish her defence accused did not stepped into witness box\n\nand also did not examined any witness on her behalf but placed\n\nher defence by way of effective cross examination of PW.1. As\n\nper the evidence on record, accused denied the issuance of8          C.C. No.24663/2019 Judgt.cheque in favour of complainant, the specific defence of the\n\naccused is that the she has issued Ex.P.1 cheque to one\n\nVasanthamma with respect to chit business. The complainant by\n\ncolluding with the son of Vasanthamma by name U.Kumar has\n\nfiled the present false case and thereby accused denied the\n\nentire allegation made against her.16.   Further, as per the case of the complainant, in the last\n\nweek of March 2018 he lend total amount of Rs.5,00,000/- to the\n\naccused. On the other hand, accused questioning the financial\n\ncapacity of the complainant in lending such an huge amount. For\n\nthis contention PW.1 explained in his cross examination that he is\n\nhaving a salary of Rs.13,000/- per month and he was having\n\nRs.2,00,000/- amount from his salary savings and obtained\n\nRs.3,00,000/- from his owner and same is handed over to the\n\naccused. Further, PW.1 deposed that his owner deducting amount\n\nfrom his salary for the said Rs.3,00,000/- till today, but in the\n\nsame cross examination dated:22.12.2021 PW.1 deposed that he\n\nhas not calculated the amount, which was return to his owner by\n\nway of deduction from his salary. However, complainant has not\n\nproduced any evidence before the court to show the same.\n\nTherefore, this statement of the PW.1 creates doubt in the mind9         C.C. No.24663/2019 Judgt.of    court regarding the trustworthiness of the testimony of the\n\ncomplainant with respect to source of funds in order to lend the\n\nsame to the accused.17.    Moreover, during the course of cross examination, PW.1\n\nhimself admitted that he came to know about the accused\n\nthrough one U.Kumar and in his presence only he has handed\n\nover the amount to the accused. It is worth to note that, in the\n\nentire cross examination accused repeatedly suggesting the PW.1\n\nthat the Ex.P.1 cheque was handed over to the Mother of said\n\nU.Kumar by name Vasanthamma with respect to chit amount and\n\nhe has filed the present case by colluding with these persons.\n\nUnder such circumstances, the complainant ought to have\n\nexamine said U.Kumar in order to falsify the case of the accused.\n\nBut, the complainant fails to take any steps to prove his case.\n\nFurthermore, In support of his case, the complainant has not\n\nproduced any documents to show the lending of such a huge\n\namount to the accused. With this regard counsel for the accused\n\nrelied on a decision of the Hon'ble Apex Court, i.e., in a case of\n\n'Basalingappa V/s Mudibasappa' reported in '2019 SCC\n\nonline SC 491' wherein which it is held that;10          C.C. No.24663/2019 Judgt."Drawing presumption under, and how\n      said    presumption     can   be    rebutted      -\n      Standard of Proof - While prosecution must\n      establish its case beyond reasonable doubt,\n      accused to prove a defence must only meet\n      standard of preponderance of probability."18.   Further, the position of law is that though presumption\n\ndoes arise against the accused undersections 118and139of\n\nthe said Act, the presumption is rebuttable on the touchstone of\n\npreponderance of probabilities. Further, to draw the presumption\n\nundersection 118read along with 139 ofNegotiable Instrument\n\nAct, the burden was heavily upon the complainant to prove that\n\nthe accused was bound to make the payment as had been\n\nagreed while issuing the cheque in favour of the complainant.\n\nHowever, in the present case, the material on record clearly\n\nindicates that the complainant fails to prove his case by\n\nproviding clinching evidence. Further, the onus of proof to rebut\n\nthe presumption lies on the accused and it is a settled position\n\nthat when an accused has to rebut the presumption undersection 139, the standard of proof for doing so is that of\n\n"preponderance of probabilities". In the present case, the\n\naccused is successfully raised a probable defense and it creates11            C.C. No.24663/2019 Judgt.doubt in the mind of court about the existence of a legally\n\nenforceable debt or liability. However, complainant fails to\n\ndemolish the evidence adduced by the accused.19.   Further, under the facts and circumstances of the case, I\n\nam of the opinion that PW-1 is unable to discharge the initial\n\nburden casted on him. So when such being the case, question of\n\ndrawing presumption undersection 118and139of Negotiable\n\nInstruments act does not arise.            So under the facts and\n\ncircumstances of the case, the inevitable conclusion is that\n\ncomplainant failed to discharge the initial burden pertaining to\n\nissuance of cheque as per Ex-P1 by the accused. Hence, the\n\ninevitable answer to point No.1 is in the "Negative".20.   Point    No.2:   On    foregoing     reasons    assigned    while\n\nanswering Point No.1 and in the result, I proceed to pass the\n\nfollowing:ORDER\n              By invoking the power conferred\n      undersection     255(1)of    Cr.PC.,    the\n      accused     is   hereby       acquitted    of    the\n      offence punishable U/S 138 ofNegotiable\n      Instrument Act.12            C.C. No.24663/2019 Judgt.Bail bond and surety bond of the\n\n       accused shall stand cancelled.(Dictated to the Stenographer directly on computer, typed by her, corrected\nby me, signed then pronounced in the open court on this the 05 th day of\nFebruary,2022.)\n\n\n\n                                         (SMT.RESHMA H.K.)\n                                        XXI ACMM, BENGALURU\n\n                                ANNEXURE1.    List of witnesses           examined        on    behalf    of   the\n      complainant:PW-1          :       Chetan2.    List of witnesses examined on behalf of the accused:-NIL-3.    List of   documents               marked       on    behalf      the\n      complainant:Ex.P.1                :     Original Cheque\n      Ex.P.1(a)             :     Signature of accused\n      Ex.P.2                :     Return Memo\n      Ex.P.3                :     Legal Notice\n      Ex.P.4                :     RPAD Postal receipt\n      Ex.P.5                :     Postal Acknowledgment\n      Ex.P.6                :     Medical certificate4.    List of documents marked on behalf of the accused:-NIL-(SMT.RESHMA H.K.)\n                                        XXI ACMM, BENGALURU