Smt Meena K. vs Sri N.R. Ravi Kumar

V. Jagannathan, J.—The Petitioner is before this Court following the trial court convicting her in respect of the offence punishable u/s 138 of the N.I. Act and directing her to pay Rs. 75,000/- fine amount and in default, to undergo S.I. for two months and the said judgment being confirmed by the lower appellate court by dismissing the Petitioner''s appeal.

The case of the Respondent-complainant as per his complaint before the trial court is that, the Petitioner herein had borrowed hand loan of Rs. 50,000/- on 12.8.03 for legal necessities and in that regard, she had executed an on demand promissory note and consideration receipt. Thereafterwards, the Petitioner also issued a cheque dated 12.4.04 for Rs. 50,000/- and the said cheque on being presented to the bank, was returned with the endorsement ''insufficient funds''. The complainant issued a legal notice to the Petitioner on 17.4.04 which was received by the Petitioner and she did not: reply to the same. Hence, the complaint u/s 200 of the Code of Criminal Procedure was lodged before the trial court alleging offence u/s 138 of the N.I. Act.

The Petitioner on the other hand, took up the stand before the trial court that, she had not received any loan of Rs. 50,000/- from the complainant and there was only loan transaction between the parties in the very small sum and whenever the Petitioner used to pay back the loan amount, the complainant used to sign in the Petitioner''s book. Therefore, the question of the Petitioner taking a loan of Rs. 50,000/- and issuing a cheque in that connection, does not arise. Although the cheque in question bears the signature of the Petitioner, it was the case of the Petitioner that, no amount, of loan of Rs. 50,000/- was ever received by the Petitioner from the complainant.

The trial court after recording the evidence of the parties, ultimately accepted the case of the complainant on the basis of the cheque Ex.PI and convicted the Petitioner u/s 138 of the N.I. Act as mentioned earlier. The lower appellate court dismissed her appeal.

I have heard the learned Counsel Sri. Vinod Prasad for the Petitioner and Sri B. Pramod for the Respondent and perused the records of this case.

Submission of Sri. Vinod Prasad, the learned Counsel for the Petitioner is that, the complainant''s case is full of doubt, inasmuch as, there are three different versions given by the complainant. The first one is, in the complaint itself, it is stated that the Petitioner took hand loan of Rs. 50,000/- and executed an on demand promissory note along with the receipt, but in the evidence before the trial court, the complainant did not whisper about the promissory note or the receipt and further during the cross examination by the accused, the complainant came up with one more version, viz., that he had given Rs. 1 lakh to the Petitioner and she paid, Rs. 50,000/- and towards the balance of Rs. 50,000/-, the Petitioner had issued the cheque Ex.P1. In view of the aforesaid variations in the very case of the complainant, the trial court ought to have disbelieved the complainant''s version.

Another contention put forward is that, Ex.D1 is marked on behalf of the accused and it is a small book wherein the complainant had signed whenever he received back the loan from the Petitioner. Therefore, in view of Ex.D1 and signature of the complainant Ex.D1(b), the Petitioner had placed enough material to rebut the presumption in favour of the complainant. Moreover, the Respondent-complainant has not been able to produce even now the promissory note or the consideration receipt, as submitted by the learned Counsel for the Respondent, before this Court today. For all these reasons, the petition be allowed arid the judgment of the courts below be set aside.

On the other hand, submission of Sri. Pramod, the learned Counsel for the Respondent is that, the cheque in question Ex.P1 is not in dispute and signature on the cheque is also admitted by the Petitioner, legal notice was issued to the Petitioner and she did not respond to it. All these factors therefore go to establish the case of the Respondent and as such, the courts below committed no error in convicting the Petitioner u/s 138 of the N.I. Act. Learned Counsel also submitted that the Respondent does not have in his possession either the promissory note or the consideration receipt.

In the light of the above submissions put forward and having regard to the evidence on record, whether the Petitioner has made out a case for this Court to interfere with the concurrent findings of the courts below.

So far as interference is concerned, the law is well settled, viz., interference is permissible if the findings recorded by the courts below are perverse in nature. At the same time, in respect of the offence u/s 138 of the N.I. Act, though the initial presumption is in favour of the complainant as per Section 139 of the N.I. Act, if the accused is able to place material to rebut the presumption, then the court cannot ignore the said material placed on behalf of the accused. The accused need net enter the witness box to rebut the presumption, but it is sufficient for the accused to show from the evidence on record that the defence case is improbabalised.

Keeping the aforesaid principles in view, I have examined the material on record. As rightly submitted by the learned Counsel for the Petitioner, the complainant has come up with three different versions. The first version as per the complainant is that, the accused for legal necessities, borrowed hand loan on 12.8.03 in a sum of Rs. 50,000/- and executed an on demand promissory note and consideration receipt as well and thereafterwards, the cheque was issued dated 12.4.04. The version given before the trial court during the evidence of the complainant as per his sworn statement is that, the accused borrowed Rs. 50,000/- hand loan from the complainant. In the affidavit of the complainant, there is no mention of either the promissory note executed by the Petitioner or the consideration receipt having been passed on by the Petitioner, nor is there any indication of the date on which the loan transaction took place. The third version of the complainant is, in the cross examination of the complainant, he has stated that the Petitioner had borrowed Rs. 1 lakh loan and had repaid Rs. 50,000/- and towards the balance amount of Rs. 50,000/-, she had issued the cheque. Thus, the complainant was not very definite about the very foundation of his case.

If at all, the Petitioner had issued an on demand promissory note along with consideration receipt, nothing prevented the complainant to say so in his evidence by way of affidavit before the trial court. If the accused had taken Rs. 1 lakh as loan and paid Rs. 50,000/- and towards the balance she issued the cheque Ex.P1, the complainant could not have omitted to state these facts in the complaint itself. Thus, the case of the complainant appears to be doubtful from the material placed by the complainant himself.

Looking from the angle of the defence, the Petitioner had produced Ex.D1 which is said to be the note book where the complainant used to put his signature whenever the Petitioner repaid the loan. The said document Ex.D1 was marked in evidence of DW-1 i.e. the Petitioner. The signature at Ex.D1(a) is said to be that of the complainant and in the course of the examination-in-chief of the Petitioner, it has been stated that the complainant had signed Ex.D1 at Ex.D1(a), (b) and (c). This part of the evidence of DW-1 has remained unchallenged in the cross-examination and nowhere it is suggested to her that the signature found in Ex.D1 is not that of the complainant. At the same time, it is suggested to DW-1 that, whenever amount, is given by the Petitioner to the complainant, complainant used to sign and make entry in the small book maintained by the Petitioner.

Thus, it is clear from the defence evidence as well that loan transaction between the parties to the tune of Rs. 50,000/- had taken place during the period from 7.8.2003 to 27.3.2004. The cheque in question, which is marked as Ex.P2 is dated 12.4.04, whereas the loan transaction is said to have taken place as per the complainant version on 12.8.03. The complainant has not produced the on demand promissory note and the receipt which are very vital documents to support the case of the complainant.

For the aforesaid reasons, the entire theory put forward by the complainant cannot be believed and the accused has placed enough material to rebut the initial presumption in favour of the complainant. Both the courts below lost sight of the defence evidence placed and did not take note of Ex.D1, the notebook. As such, the findings recorded are perverse in nature and contrary to the evidence on record. Interference is inevitable.

In the result, the petition is allowed and the judgments of the courts below are set aside. The Petitioner is acquitted of the offence u/s 138 of the N.I. Act Amount, if any, deposited by her shall be refunded to her.