Sridevi vs Vinaykumar

P.D. Waingankar, J—By judgment dated 29.07.2009 in C.C. No. 546/2006 the I Addl. Civil Judge, (Jr. Dn.) and JMFC, Dharwad acquitted the accused for the offence punishable under Section 138 of N.I. Act. Questioning the legality and correctness of judgment of acquittal, this appeal is preferred by the complainant.

The respondent/accused had obtained a hand loan of Rs. 65,000/- from the appellant/complainant. Towards the discharge of the hand loan, the accused issued a cheque in favour of complainant dated 11.02.2005 for a sum of Rs. 65,000/-drawn on Reddi Sahakan Bank Niyamita, Dharwad. The complainant presented the cheque for collection. But, it was returned with an endorsement "insufficient funds". When she brought this fact to the notice of the accused, he requested her for some more time to pay the cheque amount. As such, the complainant waited for some more time and approached the accused for payment. The accused asked her to present the cheque for encashment. For the second time, she presented the cheque for collection through her banker State Bank of Mysore, Dharwad on 10.03.2005. Again, it was bounced for the same reason. When the matter was brought to the notice of the accused, he sought for two days time to pay the amount. But he did not. Complainant issued a legal notice demanding the payment of cheque amount within the stipulated period. Though the notice was served on the accused he failed to pay the cheque amount which made the complainant to file a private complainant against the accused for the offence under Section 138 of N.I. Act.

The accused appeared and denied the accusation. The complainant in order to establish the offence under Section 138 of N.I. Act committed by the accused examined herself as PW.1 and relied upon 9 documents marked as Exs. P1 to P9. The accused stepped into the witness box as DW1 and marked Ex. D1 copy of the notice and Ex. D1 (a) unclaimed notice with cover. The learned Magistrate on appreciation of evidence recorded a finding that the complainant failed to prove the existence of debt for the discharge of which the accused issued a cheque in question. As a result, the case ended in acquittal of the accused. Hence, this appeal questioning the legality and correctness of judgment of acquittal.

I have heard the submission made by the learned counsel for the appellant/complainant and the learned counsel for the respondent/accused. Perused the records.

The learned counsel for the appellant would submit that the Trial Court has failed to understand the extent of the presumption under Section139 of N.I. Act and thereby it has fastened the entire burden on the complainant and thereby the judgment had led to miscarriage of justice.

The learned counsel for the respondent/accused, on the other hand, has argued in support of the judgment of acquittal.

Having heard the submissions made by both the learned counsel and upon closer scrutiny the entire material placed on record, the point that would arise for my determination is:

"Whether the impugned judgment of acquittal of the respondent/accused by the Magistrate calls for my interference?"

If we peruse Ex. P6 the copy of the demand notice issued by the complainant to the accused, it is the case of the complainant that the accused was due to pay an amount of Rs. 65,000/- to the complainant and for discharge of the amount of Rs. 65,000/- that was due, the accused issued a cheque drawn on Reddi Sahakan Bank Niyamita, Dharwad for Rs. 65,000/-dated 11.02.2005 in favour of the complainant asking her to present the cheque for collection after one or two days. She presented the cheque for encashment through her banker State Bank of Mysore, Dharward on 12.02.2005 the very next day. But the cheque was returned for insufficient funds. When the fact was intimated to the accused, he requested to wait for some time that he would make arrangement. The complainant waited for some time and again presented the cheque for encashment. Again, it came to be bounced. As such, the complainant issued a demand notice calling upon the accused to pay the cheque amount. The transactions between the parties are not disclosed in the notice. How the accused was due to pay a sum of Rs. 65,000/- is also not forthcoming in the notice. When the amount was taken by the accused from the complainant is also not forthcoming.

The averments made out in the complaint are also in conformity with the contents of the demand notice. The contents of the affidavit filed by the complainant in the form of her chief examination is also in conformity with the contents of the notice and contents of the complaint. In the cross-examination, the complainant who was examined as PW.1 admits that she is a housewife not doing any work, accused is the distant relative of her husband and therefore, he is known to her. She also admits that accused and her husband had formed a partnership firm, which was not in existence as on the date of her evidence. She pleaded ignorance about the actual date of dissolution of the firm. She admits having filed another complaint against accused as GPA holder of her husband and the said case was disposed of as settled out of Court. She further admits that during the said settlement, the accused paid the entire amount of firm. But, she has denied the suggestion that during the said settlement, she was required to return the blank cheques and other documents relating to partnership firm to the accused. The further suggestion made to PW.1 that the accused had issued four blank cheques at the time of dissolution of partnership firm and that the complainant misused the blank cheques and filed C.C. No. 507/2004 before C.J.M. Dharwad has been denied. It is admitted by PW.1 that she has not produced any receipt given by the accused for having received the amount from the complainant. The suggestion made to her that on account of financial difficulties her husband dissolved the partnership firm has been denied. Similarly, she has denied that the accused fully paid the amount as per the dissolution agreement. Further, she has deposed that she does not remember the date when the accused borrowed Rs. 65,000/- from her. Thus, there is no concrete evidence placed on record by the complainant where and when exactly the amount of Rs. 65,000/- was advanced by her to the accused, that too when she admits that she is the housewife not doing any work. She has not produced any document to show that at any point of time she had that much of amount so as to advance the same to the accused. Nor she has produced an acknowledgment from the accused for having received a sum of Rs. 65,000/- from the complainant. She has not whispered about the partnership firm formed by her husband along with the accused, dissolution of the partnership firm either in the notice or in the complaint or in the chief examination for the reason best known to her. Ii is only in the cross-examination, it has been extracted that the accused is the relative of her husband, both of them had formed a partnership firm, a criminal case filed against the accused was settled out of Court on account of the settlement and payment of entire amount of the firm by the accused. Under such circumstances, I have every reason to believe that the blank cheques signed by the accused while the accused and the husband of the complainant were doing partnership business has been misused. It is true that whenever a cheque is issued a presumption has to be drawn under Section 139 of N.I. Act that the cheque is issued towards the discharge of legally recoverable debt which presumption also extends to the existence of debt as held by the Supreme Court in case of Rangappa Vs. Sri Mohan, AIR 2010 SC 1898 : (2010) 2 BC 693 : (2010) CriLJ 2871 : (2010) 5 JT 259 : (2010) 5 SCALE 340 : (2010) 11 SCC 441 : (2011) 1 SCC(Cri) 184 : (2010) 100 SCL 389 : (2010) AIRSCW 2946 : (2010) AIRSCW 6043 : (2011) AIRSCW 404 : (2010) 4 Supreme 169 : (2010) 5 Supreme 206 But the said presumption though statutory in nature, it is rebuttable presumption. Therefore, it is for the accused to rebut the presumption either by leading his own evidence or from the evidence placed on record by the complainant. The burden to be discharged by the accused is not heavy as that of the prosecution who has to prove the case beyond reasonable doubt. The burden to be discharged by the accused to establish a case is by preponderance of probability. The burden to be discharged by the accused is similar to that of plaintiff or defendant in a civil case. Upon going through the material placed on record by the complainant and on appreciation of the same, the accused has been able to probabilise his defence that the cheque was not issued towards the discharge of existing of liability. But it was a blank cheque that was signed by the accused while he was doing partnership business along with the husband of the complainant. Therefore, the learned Magistrate on proper appreciation of evidence has rightly recorded a finding that the complainant failed to prove the existence of debt which resulted in acquittal of the accused. On my re-appreciation of evidence, I do not find any illegality or irregularity committed by the Magistrate in coming to the said conclusion. The appeal is devoid of merits. Hence, I pass following:

ORDER

The appeal is dismissed.