Smt. Ranjitha. P. Rajanal vs Sri K.K. Shekar

V. Jagannathan

This Criminal Revision Petition is by the accused, who suffered conviction in respect of the offence u/s 138 of the Negotiable Instruments Act at the hands of the trial court and the lower appellate court dismissed the appeal preferred by her confirming the trial court''s verdict.

The case of the respondent complainant is that, the petitioner approached him for hand loan of Rs. 75,000/- and one week after the request, he gave Rs. 75,000/- by cash to the petitioner and she issued a cheque for Rs. 75,000/- on 28.12.2007. The said cheque, on presentation, was returned with the endorsement "insufficient funds". A notice was issued to the petitioner by the complainant and on getting no reply, the complainant approached the trial court u/s 200 of the Cr.P.C. alleging the offence u/s 138 of the N.I.Act.

After appearance of the parties before the trial court, evidence was let in by both sides and, on behalf of the complainant, he himself was examined as P.W.1 and eight documents were marked on his side. On the side of the petitioner herein, she was examined as D.W.1 and one more witness D.W.2 was also examined and nine documents were produced by her.

The learned trial judge after evidence appreciation, accepted the case of the complainant and the petitioner was convicted u/s 138 of the N.I. Act and was directed to pay Rs. 75,000/- as fine and in default to undergo S.I. for six months. The appeal preferred by the petitioner was also dismissed.

I have heard learned counsel Shri P.V.Rao for the petitioner-accused and learned counsel Shri K.Ravi for the respondent-complainant and perused the records of this case.

The learned counsel for the petitioner put forward two main grounds for allowing this petition and first of the two grounds is that, the legal notice was not sewed on the accused and secondly, the complainant had failed to establish that the cheque was issued by the accused towards discharge of a legal recoverable debt. On these grounds, the judgments of the courts below are sought to be set aside and the learned counsel for the petitioner took me through the evidence on record to substantiate the aforesaid conditions.

Particular reference was made by the petitioner''s counsel to the complaint lodged by the petitioner with the Police Commissioner. Bangalore, and also a letter addressed to the Branch Manager, S.B.I., and argued that the contents of the said letters marked as Exs.D-1 and D-2 before the trial court would go to show that the petitioner was forced to go to the police station as her husband was detained by the police on the allegation of the accused''s husband having assured some persons of getting jobs and having collected certain amount of money. The petitioner was forced to bring cheque leaves from her house and was asked to issue six cheques and one of the cheques was in the name of the complainant for Rs. 75,000/-. Therefore, it is argued that the aforesaid documents produced by the petitioner and the evidence given by her before the court would give rise to doubt the complainant''s case with regard to the complainant having advanced Rs. 75,000/- to the petitioner.

Nextly it is contended that, the complainant has not been able to establish before the court with regard to the loan advanced by him to the petitioner and the persons from whom he is said to have taken some amount also were not examined to corroborate the stand of the complainant. The source of money is also not established and without taking any security whatsoever, the complainant could not have given the hand loan of Rs. 75,000/- and not even an acknowledgement has been obtained from the accused. All these would go to show that the theory put forward by the complainant itself is a false one.

As far as the service of notice is concerned, the petitioner''s counsel, referring to Ex.P-6 postal cover, contended that the endorsement on the cover is "no such person at this address" and therefore, it is clear from the aforesaid endorsement that the notice was not served upon the petitioner. It is also mentioned that the name of the accused is "Rajani" and not "Ranjitha". Therefore, the learned counsel sought for the petition being allowed and drew support for the above submissions by relying on a decision of the Goa Bench of the Bombay High Court in the ease of Peter Mcscarenhas Vs. Monsabre Ashley Oswald Dias, reported in 2010 Crl.L.J. (NOC) 1278.

On the other hand, the learned counsel for the respondent supported the judgments of the courts below and argued that the case put up by the accused cannot be believed because, if the accused had been subjected to harassment at the police station, she would not have kept quiet and her husband, being in the position of the Joint Secretary to the Government of Karnataka, working in the Secretariat, also would not have kept quiet and, at least a private complaint would have been lodged by the couple. In the absence of these steps being taken all the theory that is put forward before the trial court and the defence taken were rightly disbelieved by the trial court.

As far as the legal notice is concerned, the submission made is that the endorsement on the postal cover Ex.P-6 also mentions "not claimed". This itself shows that the notice was sent to the proper address but the accused refused to claim the notice and as such, no infirmity can be found in the case of the complainant. The petition, therefore, be dismissed.

Having thus heard both sides, whether the petitioner has made out a case for this court to interfere with the judgments of the courts below is the point for consideration.

The first and foremost requirement u/s 138 of the N.I.Act is the cheque in question should have been issued or drawn towards the discharge in whole or in part of any debt or liability. Except the say of the complainant before the trial court that the accused approached him for hand loan of Rs 75,000/ and the amount, was paid by the complainant, there is no other supporting evidence to corroborate the testimony of P.W.1. Though in the evidence it is stated by P.W.1 that he borrowed certain amounts from two persons, the complainant has not examined any one of them to substantiate his claim with regard to he having advanced Rs. 75,000/- to the accused.

Secondly, no receipt was obtained by the complainant from the accused nor any acknowledgement was given in respect of the loan transaction. The source of money is also not explained by the complainant but, the very fact that he had deposed that he also took help from others, who were his colleagues, itself shows that the complainant was not having the capacity to advance Rs. 75,000/- to the accused.

From the defence point of view, the petitioner has deposed in her evidence by way of affidavit about the incident that took place in the police station and it is in her evidence that she was called to the police station on 28.8.2006 and was threatened by the Circle Inspector to bring the cheque book and also threatened her to issue cheques in the names of K.K.Shekhar (complainant), one Parvathamma and one Anjaneyappa. She has also sworn to the effect that she and her husband were manhandled by the Circle Inspector and she was asked to sign in all five cheques and one more cheque was given in blank. The witness has gone on to depose further that she and her husband gave complaint to the Commissioner of Police and also written a letter to the Manager of the State Bank of India, Jeevanbhimanagara Branch, Bangalore.

The aforesaid evidence of D.W.1 has come out unscathed in the cross examination and nothing serious has been elicited to disbelieve her version. On the other hand. D.W.1 has given more details about the incident that happened at the police station. The said evidence of D.W.1 is also further strengthened by the documents produced at Exs.D-1, D-2 and D-3. Since Exs.D-1 and D-2 are the letters addressed by the husband of the accused, who happens to be in the position of Joint Secretary, DPAR. Vidhana Soudha, Bangalore, it is not possible to take the view that the contents of the said letters are all false one because, no person holding a senior post in the Government would venture to give a false complaint that too addressed to the Commissioner of Police and to the Manager of the S.B.I.

Ex.D-3 is another letter addressed to the Deputy Commissioner of Police wherein the accused''s husband has sought for information to be furnished and action to be taken against the Circle Inspector, Jeevanbhimanagara Police Station. Ex.D-4 is another letter addressed to the appellate authority under the Right to Information Act and Ex.D-5 is one more letter addressed to the Commissioner of Police.

All the aforesaid documents placed by the petitioner before the trial court lends support to the defence theory or version that the petitioner was forced to issue the cheques at the instance of the Circle Inspector of the concerned police station. It is a settled law that in order to rebut the presumption, the accused need not enter the witness box but can still rebut, the presumption based on the material placed by the complainant himself, in the instant case, not only the presumption is rebutted by referring to the complainant''s evidence, but the accused has also placed more material to substantiate her defence version that the cheque issued to the complainant was under duress and coercion.

Another aspect is that, the legal notice said to have been served on the petitioner actually has not been served on her in view of the endorsement on the postal cover Ex.P-6. The endorsement is that "no such person is found in the address" and therefore, the learned counsel for the petitioner is justified in contending that there was no service of notice on the petitioner. In order to attract the offence u/s 138 of the N.I. Act, notice will have to be served on the accused and as the requirement of proviso (b) to Section 138 of the N.I. Act has not been fulfilled, no offence u/s 138 of the N.I Act can be said to have been made out.

For the aforesaid reasons the judgments of the courts below cannot be sustained in law as the findings recorded are contrary to the evidence on record and thus perverse in nature. The decision referred to by the petitioners counsel was also a ease where the complainant was said to have raised money from his friends and gave it to the accused and though the said friends of the complainant were examined in that case still, the court held that the accused had rebutted the presumption u/s 138 of the N.I. Act since the complainant had failed to examine the advocate in whose presence money was said to have been paid to the accused. The case of the petitioner herein stands on a stronger footing because, except mentioning the names of the persons the complainant even does not examine them to say that he had taken certain amount from the two persons in order to advance loan to the accused.

In the result, the petition is allowed and the judgments of the courts below stand set aside. The amount in deposit if any, made by the petitioner shall be refunded to her.