Siddaiah Gowda vs Ravi Kumari

Shivashankar Amarannavar, J

This appeal is filed by the complainant challenging the judgment of acquittal dated 05.02.2013 passed in C.C.No.23670/2008 by the XIII A.C.M.M., Bengaluru, whereunder the respondent -accused has been acquitted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act” for brevity).

The brief facts of the appellant -complainant’s case is that

The complainant and accused are residing in the same locality and they are family friends. Both used to help each other in the family affairs. During the month of December -2007, the accused along with her sister Pushpa had came to the house of the complainant to arrange loan of Rs.4,00,000/- to repair their lorries and to repair her house. The complainant lent a sum of Rs.1,00,000/- each vide four cheques dated 31.12.2007, 07.01.2008, 14.01.2008 and 21.01.2008. The respondent –accused promised to repay the said amount within 06 months. Towards the repayment of the said amount, the respondent –accused has issued cheque bearing No.871587 dated 10.07.2008 for Rs.4,00,000/- drawn in Syndicate Bank, Puttanachetty Road Brnach, Bengaluru. The appellant -complainant presented the said cheque for encashment and it came to be dishonoured with endorsement as want of sufficient fund in the account of the respondent -accused. The complainant got issued legal notice to the respondent –accused. Inspite of service of legal notice the respondent –accused neither replied to the legal notice nor paid the cheque amount. Therefore, the appellant -complainant has filed private complaint against the respondent –accused for offence punishable under Section 138 of Negotiable Instruments Act, 1881.

Learned Magistrate took cognizance and registered case against the respondent –accused for offence punishable under Section 138 of N.I. Act in C.C.No.23670/2008. The plea of the respondent –accused has been recorded. The complainant in order to prove his case has examined himself as P.W.1, got examined one witness as P.W.2 and got marked documents as Ex.P1 to P11. The statement of respondent -accused came to be recorded under Section 313 of Cr.P.C. The respondent – accused has been examined himself as D.W.1 and no documents are produced on behalf of the respondent – accused. Learned Magistrate after hearing arguments on both sides has formulated points for consideration and passed impugned judgment of acquittal. The said judgment of acquittal has been challenged by the complainant in this appeal.

Heard learned counsel for the appellant and learned counsel for the respondent.

Learned counsel for the appellant would contend that the respondent –accused has not disputed her signature on cheque –Ex.P1. As the respondent – accused has not been disputed signature on Ex.P1 – cheque, the presumption has to be drawn under Section 139 of N.I Act that cheque has been issued for making payment of legally enforceable debt. The said presumption has not been rebutted by the respondent –accused. He further submits that amount has been lent through four cheques on different dates and they have been en-cashed and there are entries in that regard in the passbook of the bank account of the complaint which is at EX.P6. The respondent –accused has not put forth his defence at initial stage by sending reply to the legal notice. The complainant has credited sufficient balance in order see that cheques issued to respondent -accused are honoured prior to their dates. The said aspect has been misunderstood by the learned Magistrate by starting that cheques have been en-cashed by the complainant and amount is re-deposited to the bank account of the complainant. The appellant has examined his wife – Sumitra who is signatory to Ex.P4 and P5. The contention of the respondent –accused is that P.W.2 –wife of the complainant was running chit transaction has been denied by P.W.2. The respondent –accused in order to establish that P.W.2 –Sumitra was running chit transaction has not placed any materials on record. The respondent –accused has not established that Ex.P1 –Cheque has been issued to P.W.2 as security to chit transaction. Without considering all these aspects, learned Magistrate has erred in passing judgment of acquittal. With these, he prays to allow the appeal and convict the respondent – accused for offence punishable under Section 138 of the N.I Act.

Learned counsel for the respondent –accused would contend that the respondent –accused has taken up the defence that the Ex.P1 –cheque has been issued as security to the chit transaction run by wife of the complainant –P.W.2 -Sumitra. The respondent –accused has also denied the capacity of the complainant to lend huge amount of Rs.4,00,000/-. The respondent –accused has denied execution of Ex.P4 –on demand promissory note and Ex.P5 –consideration receipt. He submits that Ex.P6 –Bank pass book itself indicate that on the same day the amount of the three cheques have been re-credited to the account of the complainant that itself indicate that cheques have not been en-cashed by the accused. P.W.1 has stated that he has availed loan and gave to the accused and no materials have placed in that regard. D.W.1 -accused has stated his defence in his evidence. Considering all these aspects, learned Magistrate has rightly passed judgment of acquittal of the respondent –accused for offence punishable under Section 138 of the N.I Act. With these, he prays for dismissal of the appeal.

Having heard learned counsels, the Court has perused the impugned judgment and trial Court records. Considering the grounds urged, the point arises for my consideration is

“Whether learned Magistrate has erred in passing the judgment of acquittal of respondent –accused for offence punishable under Section 138 of N.I. Act.”?

My answer to the above point is in the affirmative for the following reasons.

It is specific case of the appellant –complainant that the respondent –accused borrowed Rs.4,00,000/- and in order to repay the amount borrowed has issued Ex.P1 – cheque for Rs.4,00,000/-. The respondent –accused has admitted her signature on Ex.P1 –cheque. As respondent –accused has admitted her signature on Ex.P1 -cheque, the presumption has to be drawn under Section 139 of the N.I Act that cheque has been issued for making payment of debt. The said presumption is rebuttable presumption. The standard of proof for rebutting the said presumption is preponderance of probability.

It is defence of the respondent –accused that Sumitra –P.W.2 -wife of the appellant –complainant was running chit transaction and Ex.P1 cheque has been issued as security to the said chit transaction. P.W.2 –Sumitra, the wife of the appellant –complainant has denied the suggestion that she was running chit transaction and Ex.P1 –cheque has been issued as security for the said chit transaction. D.W.1 in his cross examination has admitted that there are other members of the said chit transaction. The respondent –accused has not choosen to examine any of the members of the chit transaction to establish his defence that Ex.P1 –cheque has been given as security to the chit transaction run by P.W.2 –Sumitra. In the cross examination of P.W.1 it is suggested by showing four pocket note books stating that contents are in hand writing of his wife. The said suggestion itself indicates that the respondent –accused is possessing those 04 pocket note books and they are not produced. Even, P.W.2 has denied the suggestion that three books shown to her contained her hand writing. The said books are not produced even though accused has been examined as D.W.1.

Ex.P6 is bank pass book of the complainant of Syndicate Bank. Entries dated 31.12.2007, 07.01.2008, 14.01.2008 and 21.01.2005 indicate that cheques issued in the name of Ravi Kumari for Rs.1,00,000/- each have been en-cashed. The said entries indicate that Ravi Kumari who is accused herein has en-cashed those cheques drawn for Rs.1,00,000/- each. It is contention of the respondent –accused that on the dates of en-cashing the said cheques, same amount of Rs.1,00,000/- has been deposited in the account of the complainant. On perusal of the said pass book even though there is deposit of Rs.1,00,000/- it is not by cash it is by clearing SBM cheque. Therefore, the said contention is that the amount has been withdrawn by the complainant in the name of the respondent –accused and same is deposited in his account. The very said availability of the balance in the bank account of the complainant indicate that he had capacity to lend the amount. More so the complainant has stated that he borrowed amount from different persons and made arrangements for payment to the respondent – accused. Considering all these aspects, the respondent – accused has failed to rebut the presumption drawn under Section 139 of the N.I Act that cheque has been issued for making payment of debt.

Ex.P1 –cheque has been dishounoured for want of funds in the account of the respondent –accused. Within statutory period the notice –Ex.P7 dated 31.07.2008 has been issued to the respondent –accused by RPAD and under certificate of posting. The notice sent to the respondent –accused by RPAD has been served on her and postal acknowledgment is at Ex.P10. The respondent – accused has not sent any reply to the legal notice nor paid the cheque amount. The respondent –accused has denied service of said legal notice. Considering the postal acknowledgement and certificate of posting it is clear that the notice has been served on the respondent –accused. The respondent –accused has not paid the cheque amount within statutory period and therefore, the complaint has been filed within statutory period from the date of cause of action. Considering all these aspects, the appellant – complainant has established that the respondent –accused has committed offence punishable under Section 138 of N.I Act.

Without considering all these aspects, learned Magistrate has erred in passing the impugned judgment of acquittal and therefore, impugned judgment of acquittal requires to be set aside. The respondent –accused requires to be convicted for offence punishable under Section 138 of the N.I Act.

In the result, the following

ORDER

i) The appeal is allowed.

ii) The impugned judgment of acquittal dated 05.02.2013 passed in C.C.No.23670/2008 by XIII A.C.M.M., Bengaluru acquitting the respondent –accused for offence punishable under Section 138 of the N.I Act is set aside.

iii) The respondent –accused is convicted for offence punishable under Section 138 of the N.I Act and he has been sentenced to pay fine of Rs.4,10,000/- and in default of payment of said fine amount he shall undergo simple imprisonment for a period of 06 months.

iv) Out of the fine amount Rs.4,00,000/- is ordered to be paid as compensation to the appellant –complainant.

v) The respondent –accused shall deposit the said fine amount within 02 months from this day.