The Case-
The complainant filed the complaint against the accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of 3 cheques cumulatively amounting Rs.10,60,000/-
Complainant’s Case-
It is Case of the complainant that he and accused were known to each other as they had worked together from 2011 to 2016. The accused had approached and requested the complainant in the 1st week of October 2016 to lend a hand loan of Rs.10,60,000/- to meet her urgent domestic necessities and assured to repay the same within one year two months. Considering the request of accused, the complainant has agreed to pay the same to the accused. Thereafter, on 24.10.2016, the complainant has paid sum of Rs.10,60,000/- to the accused by way of cash and on the very same day, the accused has issued three post dated cheques bearing Nos.312989, 312990 dated 24.11.2017 for sum of Rs.7,00,000/- and Rs.2,00,000/- respectively, both the cheques are drawn on United Bank of India, Brigade Road Branch, Bengaluru and another cheque bearing No.643411 dated 24.11.2017 for sum of Rs.1,60,000/- drawn on Karnataka State Co-operative Apex Bank Ltd. Magadi Road Branch, Bengaluru, in all Rs.10,60,000/- in favour of complainant towards discharge of her liability and the accused has also assured the complainant that the said cheques would be honoured on their presentation.
The complainant has further contended that as per instructions of accused, he has presented the said 3 cheques for encashment through his banker viz., Axis Bank, Vijayanagar Branch, Bengaluru, the same came to be returned with an endorsement dated 28.11.2017 stating "Funds Insufficient". Immediately, the complainant intimated the same to the accused, but for the reasons best known to accused, she went on postponing the same by one or other pretext. Therefore, the complainant left with no other option got issued legal notice to the accused through his counsel on 05.12.2017, calling upon her to repay the cheques amount within 15 days from the date of receipt of the legal notice and the same was duly served upon accused on 06.12.2017. After receipt of legal notice, the accused got issued untenable reply on 18.12.2017 to the legal notice of complainant, but has not paid the cheques amount. Thus, she committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the criminal complaint.
Accused’s Case-
Accused lady has stated that herself and complainant have worked together and she knows the complainant. She has not approached the complainant and she has not taken hand loan of Rs.10,60,000/- on 24.10.2016 and she did not issue three post dated cheques in favour of complainant as stated in the complaint. She further stated that she has taken hand loan of Rs.7 lakhs from the complainant to meet her legal necessities in the year 2016 and issued two blank cheques bearing Nos.312989 and 312990, except her signature on the instrument nothing has been written on the cheques. She has repaid sum of Rs.5,50,000/- by way of NEFT/RTGS on different dates and remaining amount of Rs.1,60,000/- by way of cash to the complainant and she has Judgment 10 C.C.No.3972/2018 cleared the said loan amount of Rs.7 lakhs along with addition amount of Rs.15,000/-. She has not issued another cheque bearing No.643411 dated 24.11.2017 to the complainant on 24.10.2016. Because on that day i.e., on 24.10.2016, she had not opened the bank account in respect of cheque bearing No.643411. After repayment of the hand loan of Rs.7 lakhs, she requested the complainant to return the alleged cheques which were given by her to the complainant for security purpose. But he did not return the same to her for the reasons best known to him.
Case Laws relied-
K.Subramani V/s K.Damodara Naidu, the Hon'ble Apex court held capacity to pay the amount of cheque is pertinent while deciding a case.
Veerayya V/s. G.K. Madivalar, the Hon'ble High Court of Karnataka held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
M.S.Narayana Menon Alian Mani V/s. State of Kerala and another, AIR 2006 Supreme Court 3366, Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
Court’s Reasoning-
The Court ruled that the complainant must prove his financial capacity to lend huge amount of Rs.10,60,000/- to the accused. In the present case on hand, when the accused has made out a probable defence by adducing oral and documentary evidence, the burden shifts on the complainant to prove that on 24.10.2016, he paid sum of Rs.10,60,000/- to accused. In the absence of relevant documents, the contention of complainant that he paid the amount of Rs.10,60,000/- to the accused cannot be accepted. When complainant was lending such a huge amount, he could have lend the amount in the presence of witnesses. Complainant has not examined any witnesses in support of his contention.
In this case on hand the complaint failed to prove the alleged loan transaction, it can gather the probability that she is not liable to pay Exs.P1 to P3 cheques amount of Rs.10,60,000/- and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that the accused has borrowed the cheques amount and she is legally liable to pay the same. The accused has taken her defence at the earliest point of time, while recording of accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablized that complainant has failed to prove that accused issued the cheques for discharge of liability of Rs.10,60,000/-. The complainant has not produced needed evidence to prove that amount of Rs.10,60,000/- is legally recoverable debt.
Conclusion-
Therefore, as discussed above, complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
The Case-
The complainant filed the complaint against the accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of 3 cheques cumulatively amounting Rs.10,60,000/-
Complainant’s Case-
It is Case of the complainant that he and accused were known to each other as they had worked together from 2011 to 2016. The accused had approached and requested the complainant in the 1st week of October 2016 to lend a hand loan of Rs.10,60,000/- to meet her urgent domestic necessities and assured to repay the same within one year two months. Considering the request of accused, the complainant has agreed to pay the same to the accused. Thereafter, on 24.10.2016, the complainant has paid sum of Rs.10,60,000/- to the accused by way of cash and on the very same day, the accused has issued three post dated cheques bearing Nos.312989, 312990 dated 24.11.2017 for sum of Rs.7,00,000/- and Rs.2,00,000/- respectively, both the cheques are drawn on United Bank of India, Brigade Road Branch, Bengaluru and another cheque bearing No.643411 dated 24.11.2017 for sum of Rs.1,60,000/- drawn on Karnataka State Co-operative Apex Bank Ltd. Magadi Road Branch, Bengaluru, in all Rs.10,60,000/- in favour of complainant towards discharge of her liability and the accused has also assured the complainant that the said cheques would be honoured on their presentation.
The complainant has further contended that as per instructions of accused, he has presented the said 3 cheques for encashment through his banker viz., Axis Bank, Vijayanagar Branch, Bengaluru, the same came to be returned with an endorsement dated 28.11.2017 stating "Funds Insufficient". Immediately, the complainant intimated the same to the accused, but for the reasons best known to accused, she went on postponing the same by one or other pretext. Therefore, the complainant left with no other option got issued legal notice to the accused through his counsel on 05.12.2017, calling upon her to repay the cheques amount within 15 days from the date of receipt of the legal notice and the same was duly served upon accused on 06.12.2017. After receipt of legal notice, the accused got issued untenable reply on 18.12.2017 to the legal notice of complainant, but has not paid the cheques amount. Thus, she committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the criminal complaint.
Accused’s Case-
Accused lady has stated that herself and complainant have worked together and she knows the complainant. She has not approached the complainant and she has not taken hand loan of Rs.10,60,000/- on 24.10.2016 and she did not issue three post dated cheques in favour of complainant as stated in the complaint. She further stated that she has taken hand loan of Rs.7 lakhs from the complainant to meet her legal necessities in the year 2016 and issued two blank cheques bearing Nos.312989 and 312990, except her signature on the instrument nothing has been written on the cheques. She has repaid sum of Rs.5,50,000/- by way of NEFT/RTGS on different dates and remaining amount of Rs.1,60,000/- by way of cash to the complainant and she has Judgment 10 C.C.No.3972/2018 cleared the said loan amount of Rs.7 lakhs along with addition amount of Rs.15,000/-. She has not issued another cheque bearing No.643411 dated 24.11.2017 to the complainant on 24.10.2016. Because on that day i.e., on 24.10.2016, she had not opened the bank account in respect of cheque bearing No.643411. After repayment of the hand loan of Rs.7 lakhs, she requested the complainant to return the alleged cheques which were given by her to the complainant for security purpose. But he did not return the same to her for the reasons best known to him.
Case Laws relied-
K.Subramani V/s K.Damodara Naidu, the Hon'ble Apex court held capacity to pay the amount of cheque is pertinent while deciding a case.
Veerayya V/s. G.K. Madivalar, the Hon'ble High Court of Karnataka held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
M.S.Narayana Menon Alian Mani V/s. State of Kerala and another, AIR 2006 Supreme Court 3366, Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
Court’s Reasoning-
The Court ruled that the complainant must prove his financial capacity to lend huge amount of Rs.10,60,000/- to the accused. In the present case on hand, when the accused has made out a probable defence by adducing oral and documentary evidence, the burden shifts on the complainant to prove that on 24.10.2016, he paid sum of Rs.10,60,000/- to accused. In the absence of relevant documents, the contention of complainant that he paid the amount of Rs.10,60,000/- to the accused cannot be accepted. When complainant was lending such a huge amount, he could have lend the amount in the presence of witnesses. Complainant has not examined any witnesses in support of his contention.
In this case on hand the complaint failed to prove the alleged loan transaction, it can gather the probability that she is not liable to pay Exs.P1 to P3 cheques amount of Rs.10,60,000/- and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that the accused has borrowed the cheques amount and she is legally liable to pay the same. The accused has taken her defence at the earliest point of time, while recording of accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablized that complainant has failed to prove that accused issued the cheques for discharge of liability of Rs.10,60,000/-. The complainant has not produced needed evidence to prove that amount of Rs.10,60,000/- is legally recoverable debt.
Conclusion-
Therefore, as discussed above, complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Read Judgement Here:
SOURCE ; /www.latestlaws.com
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