Mrs. Yashodamma vs Mrs. M. Ratna

N. Ananda, J.—The learned trial judge has acquitted the accused (respondent) for an offence punishable u/s 138 of the Negotiable Instruments Act. Therefore, the complainant is before this court. I have heard Sri. Rajagopal Naidu, learned counsel for accused and the learned State Public Prosecutor for the State.

It is alleged in the complaint that complainant and accused are neighbours. There was friendship between the two families. The husband of accused was working as a Head Constable in the office of Superintendent of Police situate at Millers Road, Bangalore. On 20.06.2001, accused and her husband approached the complainant for financial assistance of Rs. 3,00,000/- promising to return the money at the earliest. The complainant and her husband agreed to help the accused. The amount which was saved by the complainant was given to accused on 25.07.2001. The accused returned a sum of Rs. 15,000/- out of the amount of Rs. 3,00,000/- in the month of November 2001. When the complainant demanded the accused to repay the loan amount, the accused bombarded the complainant by stating that it was not possible for her to pay back the entire amount. The complainant sought intervention of well-wishers and friends. The complainant and accused entered into an agreement on 27.11.2001 and this agreement was executed in the house Smt. Munilakshmamma who is residing at Door No. 10 of Thyagarajanagar, Bangalore. The agreement was signed not only by the accused but also by the witnesses and husband of accused. Under the said agreement, the accused and her husband had agreed to pay a sum of Rs. 60,000/- on 31.01.2002 and further agreed to pay the balance amount of Rs. 2,25,000/- on 04.12.2002. In terms of the agreement, the accused issued post dated cheques which are five in numbers. Out of five cheques, one cheque was drawn for a sum of Rs. 25,000/- and remaining four cheques were drawn for a sum of Rs. 49,999/- each.

The details of post dated cheques are as follows:

1) Cheque No. 497611 dated 03.12.2002 for Rs. 49,999/-

2) Cheque No. 497612 dated 02.12.2002 for Rs. 49,999/-

3) Cheque No. 497613 dated 01.12.2002 for Rs. 49,999/-

4) Cheque No. 497614 dated 31.11.2002 for Rs. 49,999/-

5) Cheque No. 497615 dated 04.12.2002 for Rs. 25,000/-

When these cheques were presented for encashment, they were dishonored for want of funds. The complainant was waiting to receive a sum of Rs. 60,000/- which was agreed to be paid on 31.01.2002. The accused failed to pay a sum of Rs. 60,000/- and prolonged the matter till July 2002 and ultimately, instead of paying Rs. 60,000/-, she made her husband to give a cheque for Rs. 20,000/- and pleaded for time to pay the remaining sum of Rs. 40,000/-. The complainant presented the cheque, which was dishonored. When the complainant approached the accused and her husband (Head Constable) they threatened her. The aforestated 5 cheques were presented, they were dishonoured. Therefore, the complainant caused legal notice for which accused caused untenable reply. Therefore, a complaint was initiated alleging an offence punishable u/s 138 of the Negotiable Instruments Act.

The learned counsel for complainant would submit that when the cheques are issued and dishonored, a presumption u/s 139 of the Negotiable Instruments Act would arise in favour of the complainant both regarding existence of legally recoverable debt and that cheques were issued to discharge legally recoverable debt or liability. It is true that there is presumption in favour of the complainant however, the presumption available u/s 139 can be rebutted by the accused by adducing evidence or by relying on evidence adduced by complainant.

It is seen from the evidence of complainant that she is doing Tailoring work and her husband is running an Autorickshaw. Before that, her husband was working in Kirloskar. She has denied the suggestion that complainant and her husband had no financial capacity to lend a sum of Rs. 5,63,000/- during the period between 1999 and 2001. She has admitted that she has gone to the office of Police Commissioner, the accused was called to the police commissioner''s office for enquiry. She had not kept the money in the bank. She had lent a sum of Rs. 3 Lakhs to the accused under Ex. P2.

On perusal of Ex. P2, we find that the parties had entered into an agreement and it was brought to the notice of the commissioner of police. In the circumstances, the evidence of complainant that accused became due in a sum of Rs. 3,50,000/- to the complainant under agreement dated 31.01.2002 cannot be accepted. The complainant has failed to prove that she had a sum of Rs. 3 Lakhs and lent the same to the accused. The complainant has admitted that her husband was working in Kirloskar subsequently he was running an Autorickshaw. The complainant has admitted that out of service benefits received by her husband and by raising loan, she had lent money to the accused without charging interest and without obtaining any security.

As could be seen from the dishonored cheques, we find that dishonored cheques were issued in pursuance of agreement dated 27.11.2001 as per Ex. P2. The contents of cheques including the name of Payee and the value of cheque are typewritten. The complainant has also produced another cheque dated 26.07.2002 which was issued by the husband of accused in favour of the complainant for a sum of Rs. 20,000/-.

It is not the case of complainant that dishonored cheques were issued on 27.11.2001 to revive the loan given by complainant to the accused on 25.07.2001. It looks improbable that complainant had lent a sum of Rs. 3 Lakhs to the accused without interest and without taking any security for repayment of the amount. It is an admitted fact that husband of accused is working as Head Constable. Therefore, the complainant and her husband had taken the matter to the office of Police Commissioner wherein the parties had issued dishonored cheques. The complainant has failed to bring to the notice of the court the provisions of law under which the failure of debtor to pay the loan could be taken before the Commissioner of Police.

The learned trial judge on proper appreciation of evidence has held that:

i) the complainant has failed to prove her financial capacity to lend a sum of Rs. 3 Lakhs to the accused;

ii) the evidence of complainant that service benefits of her husband and borrowings from others consolidated to lend a sum of Rs. 3 Lakhs to the accused free of interest looks highly improbable;

iii) the evidence of complainant that she had lent a sum of Rs. 3 Lakhs to the accused without obtaining any security for repayment of loan looks highly improbable.

The learned trial judge on consideration of contents of Ex. P2, in pursuance of which the dishonored cheques were issued has held that agreement as per Ex. P2 has no sanctity in the eye of law. The complainant and her husband had taken the matter to the office of Police Commissioner to put pressure on the husband of accused who was working as Head Constable. The learned trial judge has held that evidence adduced by accused is sufficient to rebut the presumption available u/s 139 of the Negotiable Instruments Act. On reconsideration of the matter, I do not find reasons to interfere with the impugned judgment. Therefore, the appeal is dismissed.