Smt. Deepa vs Smt. N. Sudha

A.S. Pachhapure, J.—The appellant has challenged the judgment and order acquitting the respondent for the charge u/s 138 of Negotiable Instruments Act (hereinafter referred to as ''NI Act'' for short) on a trial held by Addl. CMM, Bangalore City. The appellant who is the complainant before the Trial Court said to have advanced a sum of Rs. 3,00,000/- to the respondent and towards repayment of the same, the respondent is said to have issued the cheque dated 19.01.2009 for Rs. 3,00,000/- drawn on Bank of Muscat, Infantry Road, Bangalore and when the cheque was presented with HDFC Bank with whom the Muscat Bank is merged, the cheque returned with an endorsement of insufficient funds. The appellant issued notice and it was replied by the respondent denying the liability and hence, the appellant filed complaint before the Trial Court to initiate action against the appellant for the charge u/s 138 of NI Act.

The respondent appeared and after recording the plea, the appellant was examined as PW 1 and in her evidence documents Exs. P1 to P8 were marked. Statement of respondent was recorded u/s 313 Cr. P.C. Respondent was examined as DW 1 and the documents Exs. D1 to D6 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, has dismissed the complaint by granting an order of acquittal. It is this order that has been challenged in this appeal.

I have heard learned Counsel for the appellant on interim application for Special leave and also on admission.

It is the submission of learned Counsel for the appellant that the Trial Court has committed an error and when the cheque is said to be admittedly signed by the respondent, the presumption would arise u/s 139 of the Act and as there is no material to rebut the presumption, acquittal order granted by the Trial Court is erroneous and illegal. So also it is his contention that the respondent has not taken any defence in the reply notice regarding the merger of Muscat Bank with either Centurion Bank or HDFC Bank, therefore, he submits that in the absence of any defence in the notice, the defence put forth in the Trial Court cannot be accepted to rebut the presumption.

As could be seen from the material placed on record, according to the complainant cheque is dated 19.01.2009 drawn at Muscat Bank for a sum of Rs. 3,00,000/-. The cheque was presented and was dishonored on 15.04.2009. After return of the cheque, notice was issued and it was replied by the respondent in a reply notice at Ex. D4. As could be seen from the defence put forth by the respondent in the Trial Court, it is the specific contention that she had taken a sum of Rs. 10,000/- much prior to the transaction in question and the cheque in question was signed by her and was offered as a security. She also contended that the amount of Rs. 10,000/- was paid and though she asked for the cheque, the appellant stated that it was misplaced. Hence, she contended that the appellant has misused the cheque and presented it in the month of April, 2009 by filling the blanks.

Now to support this defence, Ex. D6 is the letter issued by HDFC Bank. Perusal of this letter would reveal that Muscat Bank was taken over by Centurion Bank in the year 2003. Subsequently, the Centurion Bank was also not in existence and it merged with HDFC Bank on 23.05.2008. It is subsequent to this date, the disputed cheque bears the date. Perusal of this material placed on record in the context of defence raised by the respondent, it appears more probable that the respondent had taken a loan of Rs. 10,000/- as contended by her and at that time, the cheque of Muscat Bank was given long prior to the date of disputed cheque. So as this defence is more probable, the Trial Court has granted an order of acquittal. Taking into consideration this material on record in view of the defence raised in Ex. D4, though there is no specific contention in the reply notice regarding the merger of Muscat bank and centurion bank with HDFC, as on the date of reply it may be that the respondent is unaware of the fact. On presentation of the complaint that defence was taken in the cross examination after getting the document at Ex. D6. Therefore, the mere absence of this defence in the reply notice has no bearing on the case. Taking into consideration the circumstances, I am of the opinion that it is not a fit case to grant special leave or to admit it.

In the result, as the appeal has no merits and is dismissed, accordingly.