K.N. Keshavanarayana, J.@mdashAs the parties to these two appeals are common and since the facts are inter linked as also since common questions of law and fact arise for consideration, these two appeals were heard together and are being disposed of by this common judgment. In these two appeals filed on grant of special leave u/s 378(4) of Cr.P.C., the common appellant-complainant has questioned the legality and correctness of the independent but identical judgments dated 4.2.2006 passed by XIII Additional CMM, Bangalore in C.C. Nos. 1608/2003 and 1609/2003, acquitting the common respondent-accused of the charge levelled against him for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the Act''). For the sake of convenience, during the course of this judgment, I shall refer the parties with reference to their ranking in the trial Court.
2. The common complainant-Lakshmi Subramanya filed two private complaints alleging offence punishable u/s 138 of the Act against the common accused. In C.C. No. 1608/2003, the complainant inter alia contended that for discharge of his liability towards the complainant, the accused issued 3 cheques bearing Nos. 689235, 689236 and 689237 each for Rs. 1 Lakh all dated 11.12.2002 drawn on Canara Bank, Stock Exchange Branch, Bangalore in favour of the complainant assuring that the cheques so issued would be honoured on presentation; that when the complainant presented those cheques through her Banker Janatha Co-operative Bank Limited, Bangalore, on 24.12.2002, all the cheques were returned unpaid on 27.12.2002 on the ground "funds insufficient and payment stopped by the drawer"; that the complainant received the intimation regarding dishonour of the cheques from her Bank on 30.12.2002 and on 7.1.2003, she got issued notice of demand to the accused informing the accused about return of the cheques unpaid and called upon him to pay the amounts covered under the cheques; that though the accused received the said notice, has failed to comply with the demand made therein and instead has sent an untenable reply.
In CC. No. 1609/2003, the complainant inter alia contended that for discharge of his liability towards the complainant, the accused issued 3 cheques bearing Nos. 689239 and 689238 dated 11.12.2002 each for Rs. 1 Lakh and 001967 for Rs. 3 Lakhs, all drawn on Canara sank, Stock Exchange Branch, Bangalore in favour of the complainant assuring that the cheques when presented for encashment would be honoured; that when the complainant presented those cheques through her banker Janatha Cooperative Bank Limited, Bangalore, on 24.12.2002, the same were returned unpaid on 27.12.2002 on the ground "funds insufficient and payment stopped by the drawer"; that the complainant received the intimation regarding dishonour of the cheques from her Bank on 30.12.2002, therefore, she got issued notice of demand on 7.1.2003 to the accused informing the accused about the return of the cheques unpaid and called upon him to pay the amounts covered under the cheques; that though the accused received the said notice, has failed to comply with the demand made therein instead has sent an untenable reply.
3. Upon service of summons, the accused appeared before the learned Magistrate in both the cases and pleaded not guilty for the accusation made against him and claimed to be tried. The husband of the complainant viz., C.P. Subramanya, as power of attorney holder of the complainant was examined as PW.1 in both the cases. The complainant placed reliance on documentary evidence as per Exs.P.1 to P. 15 in both the cases. During his examination u/s 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him. In his defence, the accused summoned the complainant Lakshmi Subramanya as his witness and examined her as DW. 1. In addition, he got himself examined as DW.2 in both the cases. He relied on documentary evidence Exs.D. 1 to D. 14.
4. PW.1 though in the examination-in-chief filed by way of affidavit in both the cases reiterated the allegations made in the complaint about the issuance of cheques by the accused for discharge of liability due by him to the complainant and about its return unpaid, in the cross-examination, he disclosed that the complainant had paid hand loan in all Rs. 8 Lakhs to the accused and out of the said Rs. 8 Lakhs, Rs. 5 Lakhs was paid by means of an account payee cheque drawn in favour of BVN Securities Private Limited of which the accused is a Director and the balance of Rs. 3 Lakhs was paid in cash to the accused; that in this behalf the accused also executed 8 promissory notes and consideration receipts each for Rs. 1 Lakh (marked as Exs.D. 1 to D.8); that the accused had agreed to repay the loan amount within 3 years with interest at 2% per mensum and that as the accused failed to repay the principal amount though he paid some amount towards the interest, ultimately on 11.12.2002, the accused issued the cheques in question which are the subject matter of the two cases for a total sum of Rs. 8 Lakhs for discharge of the said debt due by him to the complainant.
5. The defence of the accused was that he borrowed a sum of Rs. 5 Lakhs only from the complainant which was paid to him by means of an account payee cheque and it was agreed that the said amount of Rs. 5 Lakhs will be repaid within 3 years together with interest of Rs. 3 Lakhs and for that reason he executed 8 promissory notes and consideration receipts each for Rs. 1 Lakh in favour of the complainant and as insisted by the complainant and her husband, he also delivered the cheques in question duly signed but without mentioning the date as well as the name of the payee to the husband of the complainant as collateral security and though subsequently he repaid the entire amount of Rs. 8 Lakhs through cheques, the complainant failed to return the cheques in question, therefore, he called upon the husband of the complainant with whom he had transacted, to return the cheques also intimating him about the stop payment instruction issued to the Bank and in spite of the same, the complainant by filling up the date of the cheque as 11.12.2002, has deliberately presented the cheques. Thus according to the defence of the accused the cheques in question were not issued on 11.12.2002 for discharge of any debt or liability. According to him, as on that date the entire amount due by him had been repaid to the complainant and that as on the date of presentation of the cheques for encashment, no amount was due by him to the complainant as such he had not committed the offence punishable u/s 138 of the Act.
6. After hearing both sides and on appreciation of oral as well as documentary evidence, the learned Magistrate by the judgment under appeal, by independent but identical judgments passed in each of the two cases acquitted the accused holding that only a sum of Rs. 5 Lakhs had been advanced by the complainant as loan to the accused and not Rs. 8 Lakhs as contended by her and that the cheques in question were not issued for discharge of debt due by the accused to the complainant but on the other hand they were given to the complainant as collateral security and that as on the purported date of the cheques and as on the date of its presentation for encashment, no amount was due and outstanding by the accused to the complainant as the accused had discharged the entire loan amount with interest. Aggrieved by the said judgments of acquittal, the complainant presented these two appeals.
7. I have heard Sri. C.V. Nagesh, learned Senior Counsel appearing for the complainant as well as Sri. B.M. Arun, learned Counsel for the accused. Perused the records secured from the Court below and the judgment under appeal.
8. Learned Senior Counsel for the complainant contended as under:
that the learned Magistrate has completely lost sight of the evidence placed by the accused himself which completely falsifies his defence theory; that the learned Magistrate has failed to raise presumptions under Sections 118 and 139 of the Act and has further failed to notice that the accused has not rebutted those presumptions; that the learned Magistrate has committed serious error in holding that only a sum of Rs. 5 Lakhs was advanced as loan to the accused though the accused himself had admitted that he has executed 8 promissory notes and consideration receipts each for Rs. 1 Lakh acknowledging the receipt of Rs. 8 Lakhs; that the defence of the accused that the cheques in question were delivered to the complainant as collateral security without mentioning the date as well as payee''s name, is shown to be false by the very letter written by the accused to his Banker which has been marked as Ex.P.15 in C.C. No. 1608/2003 wherein the accused has mentioned the date of the cheques in question as 11.12.2002. This indicates that the accused knew that the cheques are dated 11.12.2002, as such the finding of the learned Magistrate that the cheques were delivered as securities is contrary to the very evidence led by the accused; that the payments indicated in Ex.D.14 relied upon by the accused to C.P. Subramanya were in relation to a different transaction with said C.P. Subramanya, therefore, those repayments could not have been construed as payment, to the complainant in relation to the transaction involved in these cases; that the last payment as mentioned in Ex.D.14 was on 4.11.2002 whereas the cheques in question were all dated 11.12.2002. Therefore, it is clear that the payments made to C.P. Subramanya as indicated in Ex.D. 14 relates to some other transaction and not in connection with the present transaction and in the light of the said admission, there was no occasion for the complainant to have shown the existence of other transactions between the accused and C.P. Subramanya, husband of the complainant. Therefore, the learned Senior Counsel contended that the judgments under appeal are liable to be set aside and the accused is liable to be convicted for the offence u/s 138 of the Act.
9. On the other hand, learned Counsel for the accused sought to justify the judgment under appeal and contended as under:
that the judgments do not suffer from any perversity or illegality warranting interference by this Court; that the trial Court having regard to the circumstances brought out on record is justified in holding that the accused has probabilised his defence theory that only a sum of Rs. 5 Lakhs had been advanced as loan by means of cheque and that the cheques in question were delivered only as collateral security and not towards discharge of debt and that the entire loan amount of Rs. 5 Lakhs with interest has been repaid by the accused and since those findings are sound and reasonable, regard being had to the evidence on record, no interference is called for by this Court in these appeals filed against the judgment of acquittal.
Pointing out to several circumstances, learned Counsel contended that the case of the accused that the cheques in question were not issued on 11.12.2002 as sought to be contended by the complainant, is highly probable and acceptable and, therefore, the Court below is justified in holding that the accused has rebutted the presumption that the cheques in question were issued for discharge of debt or liability. He contended that in view of the fact that the evidence of the accused that the husband of the complainant carried out transaction and used to collect the repayments made to his wife, has not been challenged in the cross- examination and in the absence of any evidence to indicate that there was any other financial transaction between the accused and the husband of the complainant, the payments as indicated in Ex.D.14 in the name of C.P. Subramanya (P.W.1) have been rightly held as payments towards the loan amount due to the complainant and under those circumstances, the trial Court is justified in holding that the entire loan amount of Rs. 5 Lakhs together with interest of Rs. 3 Lakhs had been repaid by the accused to the complainant even as on the purported date of the cheques and its presentation.
10. In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for consideration are;
(1) For total amount of loan advanced by the complainant to the accused was Rs. 8 Lakhs as sought to be contended by the complainant or it was only Rs. 5 Lakhs as contended by the accused?
(2) Whether the cheques in question had been delivered as collateral security and not towards discharge of debt due by the accused to the complainant?
(3) Whether as on the purported date of the cheques and as on the date of their presentation for encashment, the accused had repaid the entire loan amount with interest due to the complainant?
(4) Whether the judgment under appeal acquitting the respondent-accused suffers from any perversity or illegality warranting interference by this Court?
11. I have bestowed my anxious considerations to the submissions made on both sides.
12. Perusal of the averments made in the complaints presented before the learned Magistrate indicates that in none of the complaints there has been any indication as to when, how and how much amount was lent by the complainant to the accused. Even in the statutory notices issued preceding the presentation of the complaints also, there is no such indication. As could be seen from the records, on presentation of the complaints, the complainant-Lakshmi Subramanya gave sworn statement before the learned Magistrate wherein she came out with the statement that the accused had taken loan of Rs. 8 Lakhs in the month of January 2000 for his business agreeing to repay within one year but did not pay the said amount as agreed and later he issued the cheques in question. Thus though in the sworn statement of the complainant she stated that the total loan amount was Rs. 8 Lakhs and the loan was advanced in the month of January 2000, she has not stated as to the mode of payment of loan. As noticed supra, the husband of the complainant was examined as PW. 1 during the trial of the case claiming to be the power of attorney holder of the complainant. PW. 1 filed his evidence by way of affidavit. In the affidavit evidence also PW. 1 has not stated as to when and how the loan amount was advanced. It is only in the cross-examination, PW. 1 has stated that a sum of Rs. 8 Lakhs was paid as loan by the complainant to the accused and out of Rs. 8 Lakhs, Rs. 5 Lakhs was paid by means of account payee cheque drawn in favour of BVN Securities Limited on 20.1.2000 and the balance of Rs. 3 Lakhs was paid by way of cash to the accused on the same day. Of course, PW. 1 has denied the suggestions in the cross-examination that only Rs. 5 Lakhs was advanced as loan and Rs. 3 Lakhs was not paid in cash. Of course, the accused ran the risk of examining the complainant as his witness and she in her evidence as DW. 1 obviously has supported the evidence of her husband. According to her, she paid Rs. 8 Lakhs as loan to the accused and out of which Rs. 5 Lakhs was paid through cheque dated 20.1.2000 and the remaining Rs. 3 Lakhs was paid in cash. She has also stated that the accused has paid Rs. 1,50,000/- towards interest and he also executed on demand promissory note in her favour for having borrowed the loan amount after about 5 or 6 days. The accused examined as DW.2 has reiterated his defence that only Rs. 5 Lakhs was borrowed by him and he agreed to repay the said loan amount together with interest of Rs. 3 Lakhs and for the total amount of 8 Lakhs he executed 8 promissory notes each for Rs. 1 lakh in favour of the complainant. The accused has been cross examined at length.
13. Under clause (a) Section 118 of the Act, there is presumption that the negotiable instrument is drawn for consideration and u/s 139 of the Act, there is a presumption that the cheque of the nature mentioned u/s 138 of the Act has been drawn for discharge of debt or liability by the drawer to the drawee. From the apparent tenor of the cheques involved in these two cases, they are dated 11.12.2002. Except the cheque bearing No. 001967 marked as Ex.P.3 in CC. No. 1609/2003, the other 5 cheques arc apparently drawn for Rs. 1 Lakh each while the said cheque bearing No. 001967 has been drawn for Rs. 3 Lakhs. The complainant Lakshmi Subramanya has been shown as payee in all the six cheques. There is no dispute that the cheques in question relate to the account held by the accused with a banker and they bear the Signatures of accused. Therefore, as contended by the learned Senior Counsel, presumption under Sections 118 and 139 of the Act have to he raised. However, both these presumptions arc rebuttable presumptions. The drawer of the cheques is entitled to rebut the presumption either by direct evidence or by circumstance brought out on record in the evidence led on behalf of the complainant. It is well settled that the standard of proving the defence plea is based on preponderance of probabilities and not proof beyond reasonable doubt.
14. In the case of
20. The accused in a trial u/s 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumption arising under Sections 118 and 139 of the Act.
21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant''s rescue.
This view has been reiterated by the larger Bench in the case of
14. In light of these extracts, we are in agreement with the respondent- claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the, specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption u/s 139 is a device to prevent undue delay, in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption u/s 139, the standard of proof for doing so is that of ''preponderance of probabilities''. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
15. Keeping the above principles in mind, let me consider as to whether the finding of the learned Magistrate that the accused has rebutted the presumption and has established that only a sum of Rs. 5 Lakhs had been advanced as loan by the complainant.
16. From the evidence on record, it is clear that though the complainant asserted that she had lent a sum of Rs. 8 Lakhs to the accused, but only Rs. 5 Lakhs was shown to have been paid by the complainant to the accused through an account payee cheque. Except the oral say of PW1 and DW. 1 that the balance amount of Rs. 3 Lakhs was paid by way of cash, there is no other evidence on record to substantiate the same.
17. There is no explanation from the complainant as to why Rs. 3 Lakhs was paid in cash when Rs. 5 Lakhs had been paid by means of an account payee cheque. This shows that the complainant is aware of the requirement of law that loan transaction exceeding Rs. 20,000/- shall be only by means of account payee cheque. When the complainant had advanced loan of Rs. 5 Lakhs by way of account payee cheque, there was no reason for lending another sum of Rs. 3 Lakhs on the same day by way of cash. PW. 1 in his cross-examination has admitted that his wife is a housewife, she gets rental income and also she has invested money in the share market. According to him, his wife is an Income Tax assessee in the year 2001-2002. He pleads ignorance as to whether there is document with him in respect of returns filed by his wife. It is not forthcoming as to whether the lending of Rs. 8 Lakhs to the accused by the complainant has been reflected in the income tax returns of the complainant. As already noticed supra, neither in the notice preceding the complaints nor in the complaints, there was any mention about the mode of advancing the loan. Even in his affidavit evidence filed in both the cases, PW. 1 did not disclose the mode by which the loan of Rs. 8 Lakhs was advanced. It is only in the cross-examination, these facts have been revealed. No doubt, the accused has admitted that he has executed 8 promissory notes and consideration receipts each for Rs. 1 Lakh in favour of the complainant. However, he has come out with the explanation as to under what circumstances he executed promissory notes. Right from the beginning it was his consistent defence that only a sum of 5 Lakhs was borrowed by him from the complainant and he agreed to repay the said Rs. 5 Lakhs together with interest of Rs. 3 Lakhs and for total amount of Rs. 8 Lakhs he executed 8 promissory notes and consideration receipts and also delivered signed cheques as collateral security. In fact, the complainant appears to have not placed any reliance on the promissory notes, as is clear from the fact that in the notices issued preceding the complaints, in the complaints presented, in the sworn statement of the complainant and in the affidavit evidence of PW. 1, there is no references to execution of promissory notes.
18. It is interesting to note that in the promissory notes executed by the accused, there is no promise to repay the amount with interest. In fact, DW. 1 in her evidence has stated that in the promissory notes there is no mention about the interest. But according to her, there was an oral agreement with regard to the payment of interest. This circumstance in my considered opinion, probabilises the defence theory that only Rs. 5 Lakhs had been advanced the accused had agreed to repay the said money together with interest of Rs. 3 Lakhs and for that purpose, 8 promissory notes were executed on the same day, each for Rs. 1 Lakh, covering the total amount of Rs. 8 Lakhs. Otherwise, a business person like complainant and her husband would not have certainly omitted to mention the promise to pay interest. It is also highly unnatural to believe that such huge sums would be advanced without charging interest.
19. As could be seen from the oral evidence of PW. 1 and also DW. 1, the money was lent on interest and there was an oral agreement to pay interest. The accused also admitted that he borrowed money from the complainant agreeing to pay interest. If Rs. 8 Lakhs had been advanced as contended by the complainant and acknowledging the receipt of the same, the accused had executed the promissory note and consideration receipts, in the light of the agreement regarding payment of interest, the said fact would have certainly been reflected in the promissory notes. The very fact that the promissory notes does not reflect about repayment of the borrowed loan with interest indicates that the promissory notes and the consideration receipts had been executed for the principal amount of Rs. 5 Lakhs and for Rs. 3 Lakhs towards interest agreed to be paid. Therefore, the execution of 8 promissory notes each for Rs. 1 Lakh by the accused totaling to Rs. 8 Lakhs by itself cannot be a circumstance to come to the conclusion that the accused had borrowed 8 Lakhs. Admittedly there is no document to evidence lending of Rs. 3 Lakhs by way of cash. Having regard to the circumstances under which the 8 promissory notes have been executed by the accused as noticed supra, these promissory notes cannot be the basis to hold that Rs. 8 Lakhs had been advanced as loan by the complainant to the accused.
20. From the above, it is clear that the accused has probabilised his defence theory that only Rs. 5 Lakhs was borrowed by him and the remaining Rs. 3 Lakhs was the amount agreed by him to be payable as interest on Rs. 5 Lakhs and thereby he has rebutted the presumption u/s 118 and also u/s 139 of the Act regarding the existence of debt to an extent of Rs. 8 Lakhs. In the light of the discussion made above, I am of the considered opinion that the learned Magistrate is justified in holding that the complainant had advanced only Rs. 5 Lakhs to the accused as loan which had been paid to the accused by way of account payee cheque and the remaining Rs. 3 Lakhs as mentioned in promissory notes was payment agreed by the accused towards the interest on Rs. 5 Lakhs. I find no error in the said finding recorded by the learned Magistrate and the same does not call for interference by this Court. Hence I answer point No. 1 accordingly.
Re-Point No. 2:
21. It is the specific case of the accused that the six cheques in question had been delivered to the complainant through her husband as collateral security and not towards discharge of debt. However, on the other hand, according to the complainant, the cheques were issued on 11.12.2002 towards discharge of debt due by the accused to her. Of course, the six cheques admittedly relate to the account held by the accused with the banker and since they bear his signature and the cheques are drawn for specified amount, it has to be presumed that the cheques were issued for discharge of debt due by the accused to the complainant as provided by Section 139 of the Act. However, as noticed supra, while discussing point No. 1, this Court has found that only a sum of Rs. 5 Lakhs had been advanced by the complainant to the accused and the accused had agreed to repay the said amount of Rs. 5 Lakhs together with interest of Rs. 3 Lakhs and in that regard he had executed 8 promissory notes. The accused contended that these cheques were delivered without mentioning the date and name of the payee. To substantiate this, the accused relied on Ex.D.9, a copy of the letter dated 15.12.2002 addressed to PW. 1.
22. The complainant had sought to disprove the contention of the accused that the cheques were delivered without mentioning the date, by examining an Officer of the Canara Bank, Stock Exchange Branch, Bangalore as PW.2 and by marking a copy of the letter addressed by the accused to his Banker as per Ex.P. 15. Ex.P. 15 is the attested copy of the letter written by the accused to his banker. The accused in his oral evidence sought to give explanation that the date in Ex.P. 15 was mentioned as per the direction of the Bank Manager. It is based on Ex.P. 15, the learned Senior Counsel contended that the accused knew that all the cheques had been issued on 11.12.2002. Therefore, this Court is now required to consider as to whether these cheques had been drawn and delivered by the accused to the complainant on 11.12.2002.
23. Under clause (b) of Section 118 of the Act, there is a presumption as to the date on which the instrument is drawn and if it bears a date, it has be presumed that it was drawn on that day. However, the said presumption is also a rebuttable one. It was contended by the learned Counsel for the accused that if really the accused had issued the cheques on 11.12.2002 for discharge of debt of Rs. 8 Lakhs, there was no reason for him to have issued six cheques on the Same day, since it was sufficient for him to have issued one cheque. This circumstance, according to the learned Counsel for the accused, probabilises the plea of the accused that these cheques had been delivered to the complainant to be held as collateral security and not meant to be presented for encashment.
24. I find considerable force in this contention. If the accused was due in a sum of Rs. 8 Lakhs as on 11.12.2002 to the complainant, it was sufficient for him to have issued one cheque covering the entire amount of Rs. 8 Lakhs. There is no explanation as to why six cheques were issued on the same day for different amounts covering a total sum of Rs. 8 Lakhs. It is not the case of the complainant that post-dated cheques had been issued.
25. There is yet another intrinsic evidence available on record which probabilises the defence theory that the cheques in question could not have been drawn on 11.12.2002. Admittedly, Ex.D. 14 is the extract of the bank account held by the accused on which the cheques'' in question had been drawn. As could be seen from the entries found in Ex.D. 14, the last cheque in the series starting from 689201 to 689250 was cleared on 3.2.2001. The three cheques involved in C.C. No. 1608/2003 are bearing Nos. 689235, 689236 and 689237. The two cheques in C.C. No. 1609/2003 are bearing Nos. 689238 and 689239 and all these five cheques are apparently drawn for Rs. 1 Lakh. If the last cheque in the series had been cleared on 3.2.2001 itself, it has to be assumed that the aforesaid 5 cheques, which are subject matter of these proceedings, must have been drawn and delivered prior to 3.2.2001. The third cheque in C.C. No. 1609/2003 is bearing No. 001967. As could be seen from Ex.D.14, cheque bearing No. 001999 was cleared on 7.1.2002. It is also interesting to note that the cheque bearing No. 001966 was issued to PW.1 and the same was cleared on 16.8.2001. The cheque bearing No. 001969 was cleared on 18.8.2001. From this it is clear that cheque bearing No. 001967 must have been drawn and issued prior to 18.8.2001. Thus from the above, it is clear that the cheque book with the series bearing Nos. 689201 to 689250 and also the cheque book in the series bearing Nos. 001901 to 002000 had been exhausted much prior to 11.12.2002. In Ex.D.9 the accused has specifically stated that 5 cheques bearing Nos. 689235 to 689239 had been delivered on 9.1.2001 and the 6th cheque bearing No. 001967 had boon delivered on 11.8.2001. The entries in Ex.D.14 as indicated above, probabilises the say of the accused that the cheques have been delivered on the dates mentioned in Ex.D.9. At any rate, the above circumstance clearly indicates that none of these cheques could have been drawn and delivered to the complainant on 11.12.2002.
26. PW.1 in his cross-examination dated 4.2.2005 in C.C. No. 1608/2003 has stated that he does not know the exact date of issuance of cheque, but according to him, it may be in the year 2000 or 2001 and that the accused had given six cheques to him. According to him, he does not remember whether all the said cheques were given on the same day or not. DW. 1 in her evidence has stated that the cheques in question were issued by the accused in the year 2001 or 2002. Thus PW. 1 and DW. 1 are not definite as to when the cheques were issued in the cross-examination they have not asserted that the cheques were drawn and delivered on 11.12.2002. If the cheques had been drawn and delivered on 11.12.2002, there was no difficulty for PW. 1 and DW. 1 to have stated the said fact. On the other hand, they have vaguely stated that the cheques were issued either in the year 2000 or 2001 or 2002. This circumstance also probabilises the case of the accused that the cheques were not issued on 11.12.2002 and they were issued much earlier.
27. In
Re-point Nos. 3 and 4:
28. It is the specific contention of the accused that he has repaid the entire amount of Rs. 8 Lakhs to the complainant through account payee cheques drawn either in the name of the complainant or in the name of her husband and as on the purported date of the cheques as well as on the date of its presentation, no amount was due and outstanding to the complainant. To substantiate the said contention, the accused produced bank account statement as per Ex.D.14. As could be seen from the entries in Ex.D.14, between 31.1.2000 to 13.5.2002 on various dates a sum of Rs. 6,24,500/- has been paid to C.P. Subramanya by means of account payee cheques. Ex.D. 14 also indicates that from 29.1.2000 to 4.11.2002, a sum of Rs. 2,08,000/- has been paid to the complainant Lakshmi Subramanya on various dates through account payee cheques. PW.1 in his cross-examination has denied the suggestion that the accused has repaid the entire amount of Rs. 8 Lakhs. DW.1 in her evidence has stated that the accused has paid Rs. 1,50,000/- towards interest.
29. DW.2 in his examination-in-chief filed by way of affidavit has asserted that he has paid in all Rs. 8,38,750/- to the complainant through her husband C.P. Subramanya. He has also set out the details of the payments made through account payee cheques. In the cross-examination of DW.2, it has been elicited that Ex.D. 14 contains 70 pages and it refers to the amount paid to C.P. Subramanya. He has denied the suggestions that he had borrowed a sum of Rs. 5 Lakhs in one transaction and Rs. 8 Lakhs in another transaction. In the further cross-examination held on 23.11.2005 in C.C. No. 1608/2003, DW.2 has denied the suggestion that he borrowed a sum of Rs. 8 Lakhs in one transaction, Rs. 5 Lakhs in second transaction and Rs. 1,50,000/- in the third transaction from the complainant. He has denied the suggestion that entries in Ex.D. 14 are not connected to the present transaction. It is further elicited from DW.2 that PW. 1 had filed a case against him in C.C. No. 1611/2003 and there is no relationship between the transaction involved in these cases and the transaction involved in C.C. No. 1611/2003. In the entire cross-examination of DW.2, in both the cases, except a bare suggestion that entries., found in Ex.D. 14 are not connected with transaction pertaining to these proceedings, there is absolutely no explanation from the complainant or PW. 1 to show that the payments as indicated in Ex.D.14 to the complainant and also PW.1 relate to some other transaction.
30. Perusal of evidence of PW.1 and of DW.2 indicate that the complainant has not disputed receipt of Rs. 8,32,500/- on different dates as indicated in Ex.D. 14. All these payments have been made through account payee cheques. Therefore, it is not possible for PW.l and complainant to dispute those payments. No doubt, DW.2 has admitted that PW. 1 has filed another complaint in C.C. No. 1611/2003. A copy of the complaint in C.C. No. 1611/2003 is made available. Perusal of the same indicates that it relates to a cheque issued by the accused to PW. 1 in a sum of Rs. 50,000/- on 5.1.2.2002 and in the said case, the accused was convicted. The accused has produced copy of receipt for having deposited the fine amount as ordered by the trial Court in that case. Therefore the payment of Rs. 6,24,500/- to PW.1 as reflected in Ex.D.14 cannot be towards the claim in CC. No. 1611/2003. PW.1 while in the witness, box has not stated anything about any other transaction between him and the accused. After production of Ex.D14 by the accused indicating payment of a sum of Rs. 6,24,500/- to PW.1, no attempt has been made by PW. 1 or the complainant to explain as to in respect of which transaction the payments reflected in Ex.D.14 have been received by him. Therefore, in the absence of any such explanation from PW. 1 and the complainant, the say of the accused that those payments made to PW. 1 are all towards the amount due to the complainant, has been rightly accepted by the trial Court. PW. 1 is none other than the husband of complainant. In his evidence PW. 1 has stated that the complainant is a house wife. Therefore, it is clear that PW. 1 looks after the business run in the name of his wife and acts on behalf of his wife. Therefore, it was necessary for PW. 1 to have shown that there are different transactions between him and accused and that the payments received by him as reflected in Ex.D.14 were towards such different transactions. In the absence of any material showing existence of any other liability due by the accused to PW. 1, the irresistible conclusion one has to reach is that those payments as reflected in Ex.D.14 have been received by PW. 1, for and on behalf of his wife towards the transactions involved in these proceedings.
31. Of course, the learned Senior Counsel during the course of the arguments contended that there are several transactions between PW. 1 and the accused and the payments reflected in Ex.D.14 relate to those transactions. However, no material is produced in support of the said contention. In the absence of any explanation from PW. 1 while he was in the witness box and failure on the part of PW. 1 to produce any material in this regard even after the accused producing Ex.D.14, there is no substance in the contention of learned Senior Counsel. DW. 1 has admitted receipt of certain money to the extent of Rs. 1,60,000/- whereas. Ex.D.14 shows that Rs. 2,08,000/- has been received by DW.1. In the light of the findings that 8 is was inclusive of interest of Rs. 3 Lakhs on Rs. 5 Lakhs, the say of DW. 1 that Rs. 1,60,000/- received by her was towards interest, cannot be accepted. In the light of the finding that the cheques in question are shown to have been drawn and delivered much prior to 11.12.2002, there is no force in the submission of learned Senior Advocate that the payments reflected in Ex.D.14 are towards different transactions, on the premise that the cheques as dated 11.12.2002 while the last payment as shown in Ex.D.14 was on 4.11.2002. Thus the accused by producing cogent evidence has established that he has repaid more than Rs. 8 Lakhs to the complainant through her husband by means of account payee cheques and therefore, as on the purported date of the cheques and also on the date of its presentation, no amount was found due and outstanding by him. The finding recorded by the learned Magistrate in this regard is sound and reasonable regard being had to the evidence on record. Therefore, the learned Magistrate is justified in holding the accused not guilty of the charge levelled against him for the offence u/s 138 of the Act The judgment under appeal does not suffer from any perversity or illegality warranting interference by this Court. In this view of the matter, I answer point Nos. 3 and 4 accordingly. In view, of the: above discussion, I find no merit in these appeals. Accordingly, the appeals are dismissed.
