Arali Nagaraj, J.
1. The complainant in CC. No. 7926/2002 on the file of the Learned J.M.F.C., IV Court, Dakshina Kannada. (hereinafter referred to as 'Trial Court' in short) has challenged in this appeal the judgment and order of acquittal dated 23.4.2004 passed in the said case acquitting the accused therein (who is the respondent herein) of the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'N.I. Act' in short).
2. I have heard the arguments of Sri G. Balakrishna Shastry, the learned Counsel for the appellant-complainant and also Sri Shahul Hameed, the learned Advocate for Sri. B.L. Acharya, the learned Counsel for the respondent - accused and perused the impugned judgment and also the entire material found in the original records obtained from the Trail Court.
3. Stated in brief the case of the complainant as averred in his complaint filed under Section 200 Cr.P.C. is as under, (Parties will be referred to as per their rank before the Trial Court).
(a) Since the husband of the accused died in a road traffic accident that occurred on 19.2.2001, she was in need of money and therefore she approached the complainant to advance her a amount of Rs. 70,000/- saying that slue would repay the same within six months. Therefore, the complainant lent her the said sum of Rs. 70,000/- on 27.3.2001. In consideration of the said loan amount the accused executed an on demand promissory note on the same day i.e., on 27.3.2001 in favour of the complainant agreeing to repay said amount within six months from 27.3.2001. But she failed do so.
(b) On 6.4.2002 the accused issued a crossed cheque bearing No. 109411 in favour of the complainant drawn on her account maintained with Canara Bank, Car Street branch, Mangalore towards discharge of the said debt. When the said cheque was presented to the bank on 17.04.2002, it came to be dishonoured and returned on 19.4.2002 with endorsement as 'funds insufficient; payment stopped by the drawer.' Therefore, the complainant got issued a statutory notice to the accused calling upon her to pay the said amount of Rs. 70,000/. In response to the said notice the accused did not make payment of the said amount to the complainant within the stipulated period, Therefore the complainant filed her said complaint.
4. On appreciation of the oral evidence of the complainant as P.W.1, that of the accused as D.W.1 and her two witnesses D.W.2 and D.W.3 and also the documents at Exs.P.1 to 11 produced by the complainant and documents at Exs.D1 to 11 produced by the accused, the Trial Court passed the impugned judgment and order acquitting, the accused of the offence under Section 138 of N.I. Act. Therefore, the complainant has preferred the present appeal.
5. On careful reading of the impugned judgment, the evidence of P.W.1 complainant, D.W. 1 accused, D.W.2 and 3 the two witnesses for the accused and also on perusal of the documents Exs.P1 to P11 and Exs.D1 to D11 it could be seen that it is the case of the complainant that she lent Rs. 70,000/- to the accused on 27.3.2001 and the accused executed Ex.P3 'on demand promissory note' in her favour on the same day. But case of the accused is that one Jeevan Kumar, Advocate who bad. filed a claim petition on behalf of the accused and other dependents of her husband in respect of the death of her husband in the Motor Vehicle accident obtained from her a signed blank cheque saying that it was required for getting the release of the compensation amount in her favour and thereafter he demanded from her 20% of the compensation as his legal fees but she did not agree to it and therefore he got the said cheque misused through the complainant, who used to get compensation cases for the said advocate and as such she (accused) never borrowed the said amount of Rs. 70.000/- from the complainant as alleged against her.
6. Sri G. Balakrishna Shastry, learned Counsel for the appellant- complainant strongly contended as under:
(i) The Trial Court committed an error in. drawing an adverse inference against the complainant for not examining Sri Jeeva. Kumar, Advocate and her father in support of her case.
(ii) The Trial Court erred in holding that: execution of Ex.P.3, 'on demand promissory note' by the accused has not been proved by the complainant.
(iii). The Trial Court has failed to notice that since the accused has received the cheque in respect of compensation from the Claims Tribunal on 4.4.2002 and she obtained the cheque book and pass book from the bank on 6.4.2002, she had no occasion for her advocate namely, Jeevan Kumar, who represented her in the compensation case before the Claims Tribunal, to obtain signed blank cheque from the accused under the pretext that it was necessary for getting the compensation amount in the said case.
(iv) The Trial Court was not justified in dismissing the complaint and acquitting the accused despite the accused not establishing her defence version that she handed over the cheque in question to the said Jeeva Kumar, Advocate without filling the blanks therein and the same was misused by the complainant by taking it from the said Advocate.
(v) The Trial Court also failed to notice that there is no consistency between the defence taken by her in Ex.D. 11 the reply given by her to the statutory notice issued to her by the complainant and the masons stated in Ex.P7 the letter addressed to the bank requesting the bank to stop payment in as much as, if it is stated in the reply Ex.D. 11 that she gave to her Advocate Jeeva Kumar signed blank cheque, it is stated in Ex.P.7 letter that she lost the cheque book and pass book.
(vi). When the accused clearly admitted her signature on Ex.P.2 cheque, the Trial Court ought to have drawn presumption in favour of the complainant under Section 139 of N.I. Act that them existed the debt payable by the accused to the complainant as on the date of the cheque and the said cheque was issued by her towards discharge of the said debt.
7. Per contra, Sri Shahaul Hameed, the learned Counsel for the accused strongly contended as under:
(a) Through her oral evidence as D. W. 1 and also that of D. W.2 and the documents Ex. D1 to 11, the accused successfully established that Ex.P.2 cheque was not given by her to the complainant towards discharge of any debt, much less Rs. 70,000/- which is alleged to have been taken by her from the complainant and therefore, the Trial Court was quite justified in recording its finding that the complainant has failed to establish the very existence of legally recoverable debt as on the date of said cheque.
(b) Though the complainant has stated in her evidence that she got the said amount of Rs. 70,000/- from her father for lending the same to the accused, she has not chosen to get her father examined nor has she got any other witness examined to prove the factum of lending of the said money to the accused and therefore, the impugned judgment and order of acquittal does not call for any interference in this appeal.
(c) Though it is the specific case of the complainant that the accused executed Ex. P. 3 'on demand promissory now' in consideration of the said amount of Rs. 70,000/- she has failed to establish the execution of the said-demand promissory note by the accused and therefore, the Trial Court was right in recording its finding that the very existence of legally recoverable debt payable by the accused to the complainant as on the date of cheque in question was not established by the complainant.
8. On careful examination of the oral and documentary evidence placed on record by the complainant and the accused, the Following facts emerge as to the factum of the alleged lending of loan of Rs. 70,000/- by the complainant to the accused on 27.3.2001 against promissory note .
(a) Ex.P.3 'on demand promissory note' does not hear the signature of any person either as the attesting witness or as its scribe.
(b) Though the complainant has stated in her evidence that the accused approached her on 26.3.2001 and she gave the accused draft promissory note and the accused got the same typed and gave it to her on 27.3.2001, except her self-serving statement in her complaint and evidence, no other evidence is placed on record by her to substantiate the same.
(c) Though the complainant has stated that she got the said amount from her father, she has not chosen to get her father examined to substantiate the same. Further, though she has stated in her evidence that her brother who had been a Chartered Accountant, told her that signature of any witness is not necessary on the Promissory Note and therefore she did not get on the Demand Promissary Note signature of any witness. Though she has stated in her evidence in cross examination that she. got the said amount from her father's account with Bank of India, she has not produced, atleast the pass book of his father's said Account to substantiate the same. On the other hand, the accused has produced Ex.D10, the original pass book of the account of her father-in-law to substantiate her oral evidence that he paid towards all the expenses in connection with the accidental death of her husband D.w.3 Laxman is her father-in-law. He has deposed in his evidence that he sperit Rs. 5000/- by drawing from his account with the said bank towards expenses of obsequies ceremony of his son and as such, there was no necessity either for himself or for his daughter-in-law to barrow Rs. 70,000/- from the complainant.
9. On proper appreciation of the above facts and circumstances of the case. The Trial Court has rightly held that the complainant failed to prove the execution of Ex.P.3 'on demand promissory note' by the accused in her favour. This feeling so, it is quite clear that she further failed to establish that there existed debt payable by the accused to the complainant as on 6.4.2002 on which date Ex.P.2 cheque is said to have been issued by the accused in favour of the complainant.
10. Sri Balakrishna Shastry, the learned Counsel for the complainant placing strong reliance on the decision of Hon'ble Supreme Court in the case of Hiten P. Dalal v. Bratindranath Banerjee reported in 2001 (3) Crimes 220 (SC) contended that since the accused admitted her signature on Ex.P.2 cheque it was not necessary for the complainant to prove the existence of debt payable by the accused to the complainant and therefore, the Trial Court ought to have raised presumption under Section 139 of N.I. Act.
11. It is pertinent to note that the delivery of the cheque in question by the accused to the complainant is denied by the accused. In the said case before the Hon'ble Supreme Court the issuing of four cheques by the accused therein in favour of the complainant was not disputed. On the other hand, it was the case of the accused that the said cheques were given by the accused to the complainant towards Intended transaction which did oat take place after the issuance of the said cheques. Therefore, I am of the considered opinion that the principles laid down by the Hon'ble Supreme Court in the said case cannot be applied to the facts of the present case.
12. Section 139 of N.I. Act reads thus:
139. Presumption in favour of holder-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 far the discharge, in whale or in part, of any debt or other liability.
Further, Section 138 of N.I. Act reads thus:
138. Dishonour of cheque far insufficiency, eta, of funds in the account-Where any cheque drawn by a person on an account maintained by Mm with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to the amount of the cheque or with both;
Provided that nothing contained in this section shall apply unless:
a) xxx
b) xxx
c) xxx
Explanation-For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability.
13. A careful reading of the above provisions of Section 138 and 139 of N.I. Act it is clear that in order to raise the presumption under Section 139, the complainant has to establish the fact that 'he received the cheque' in question from the accused and thereby he became its holder. Therefore, it is now to be seen whether the complainant has established the fact that Ex.P.2 cheque was duly received by her from the accused.
14. If it is the case of the complainant that the accused herself gave her the said cheque on 6.4.2002 on which date itself she obtained cheque book and pass book from the bank as deposed to by P.W.2 the Manager of the bank and also as could be seen from Ex.P7 the letter addressed by the accused to the said Manager for requesting him to atop the payment from her account, the case of the accused, as stated at the earliest opportunity, in reply notice Ex.D11 and also as deposed in her evidence as D.W.1 is that after her claim for compensation in respect of death of her husband was settled before the Lok Adalath, her Advocate Jeevan Kumar took the said cheque under the pretext that it was required to be produced before the Claims Tribunal for obtaining payment of compensation and therefore, she gave the said cheque lay putting her signature an it and without filling the blanks therein.
15. It is established by the accused through her oral evidence and also the documents Ex/D1 the copy of Claim Petition in M.V.C. No. 519/2001 on the file of M.A.C.T., Mangalore Exs.D2 and D3 respectively the certified copy of vakalath filed by the said Advocate in the said case and order sheet therein; Ex.D4 the certified copy of compromise memo filed in the said case and also Ex.D5 to D7 the applications tiled by the accused and other claimants in the said case seeking payment of compensation; that Jeevan Kumar, Advocate represented her and all other claimants in the said case and got the claim settled in the Lokadalat for a total sum of Rs. 3,15,000/- towards death of the husband of the accused.
16. Further, D.W.1 accused has categorically stated in her evidence that she was not knowing the complainant and as such he was total a stranger to her and therefore there was no occasion for her to avail the said amount of Rs. 70,000/- as loan from the complainant and she never borrowed the said amount from the complainant and she did not issue the said cheque to the complainant. She has also stated in clear terms in her evidence that she gave the signed blank cheque to her Advocate Jeevan Kumar and said Advocate gave the same to the complainant, as she (complainant) was acquainted with him and got the false case filed against her {accused) as she refused to pay 20% of the compensation as his legal fees as demanded by him. It is worth to note that the accused has taken this defence at the earliest opportunity in Ex.D11, her reply to the statutory notice issued to her by the complainant pursuant to the dishonour of the cheque in question and as such, it cannot be said to be an after thought defence taken by the accused with intent to defeat the complainant's claim. Besides this, it is based on the facts which existed earlier to the date of the cheque in question. Further, though the accused took this defence in Ex.D11 her reply to the said notice and the complainant has clearly admitted the receipt of the said reply, she has not stated a single word in her complaint either as to the receipt of the said reply lay her or as to the said defence of the accused. She has not chosen to get the said advocate Jeevan Kumar examined as her witness nor has she given any acceptable explanation why she could not get him examined as her witness.
17. Further, it is pertinent to note that Ex.P.2 cheque bears signature of the accused on its face and also on reverse of it. This goes to show that the said cheque was intended to be used as a 'self-cheque', but not as the one issued by her to any other person. Besides, this D.W.1 has clearly stated in her evidence that the writings on Ex.P.2 cheque were not written by her. The evidence of PW2, the Bank Manager clearly establishes that the accused was introduced to the Bank by the said Advocate Jeevan Kumar and, on his introduction, the said account was opened for the accused. It is also pertinent to note that PW2 has stated in his evidence that cheque book was taken by the accused on 06.04.2002. Ex.P2 cheque is said to have been issued on the very same date i.e., on 06.04.2002. All these facts and circumstances clearly go to show that Ex.P.2 cheque was not delivered to the complainant by the accused so as to draw the presumption under Section 139 of N.I. Act. Besides this, these facts and circumstances probablise the defence version of the accused as stated in Exhibit D11 reply to the notice of the complainant and also as deposed in her evidence that she gave the said cheque to her Advocate Jeevan Kumar without filling the blanks therein.
18. In the case of Krishna Janardhan Bhat v. Dattathraya G. Hegde reported in : AIR 2008 SC 1325, it is observed by the Hon'ble Supreme Court at paragraph Nos. 20, 21, 23, 25, 26 and 34 as under:
Para 20: Section 138 of the Act has three ingredients, viz,:
(i) that there is a legally enforceable
(ii) that the cheque was drawn from the account of bank for discharge in, whole or in part of any debt or other liability which presupposes a legally enforceable debt: and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
Para. 21: 'The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can he acted upon by a court of law. Section 139 of the Act merely takes a presumption in regard to the second aspect of the matter. Existence of lagally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debtorother liability.
(Emphasis supplied by me]
Para 23: 'An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.
Para 25: 'Furthermore, whereas prosecution must prow the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities' Inference of preponderance of probabilities cats be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies.
Para 26: 'A statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not, must, therefore be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant Is not imperative, In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration.
Para 34: It is further argued that statute mandates raising of presumption but it stops at that, It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case., the materials brought on record and having regard to legal principles governing the same.
19. Following the above observations of the Hon'ble Supreme Court, I am of the considered view that the presumption under Section 139 of N.I. Act extends only to the issuing of cheque towards discharge of a legally enforceable debt or liability and it has to be raised only after the complainant establishes that such debt or liability in. fact existed as on the date of the cheque in question and that the cheque was given to Mm by the accused. Therefore, since the very fact that the complainant lent to the accused the loan of Rs. 70,000/- on 27.3.2001 and the accused issued in favour of the complainant and delivered to her Ex.P.2 cheque dated 06.04.2002 for the said ban amount of Rs. 70,000/- have not been established by the complainant, no presumption under Section 139 of N.I. Act could be raised in favour of the complainant that the said cheque was issued by the accused towards discharge of the alleged loan amount.
20. While drawing my attention to some inconsistencies in the evidence of D. W. 1 and contents of Ex.D11 reply given by her to the statutory notice issued by the complainant and Ex.P.7, the letter addressed on her behalf to the bank in respect of 'stop payment,' Sri G. Balakrishna Shastri, the learned Counsel for the complainant strongly contended that the accused miserably failed to prove her defence version and therefore, the Trial Court was not justified in dismissing the complaint and acquitting the accused, As observed by Hon'ble Supreme Court in the case of Krishna Janardhana Bhat referred to supra, it is the settled principle that, in a criminal case, the accused need not prove his defence version beyond reasonable doubt but the complainant has to prove his case beyond reasonable doubt. Further, it is also settled principle that in a criminal case, even falsity of defence put forth by the accused would not be a ground to come to a conclusion that the complainant or the prosecution established his/ its case against the accused beyond reasonable doubt so as to hold the accused guilty of the offence charged against him, Therefore, when the complainant herself failed to prove the very factum of lending of said amount of loan to the accused, the existence of legally enforceable debt as on the date of the said cheque and also the delivery of the said cheque by tine accused to the complainant it could not be held that the complainant established her case against the accused beyond reasonable doubt. On the other hand, the accused has probabalised her defence that she delivered to her Advocate Jeevan Kumar signed blank cheque in connection with her case for compensation. Therefore, the impugned judgment and order of acquittal does not call for any interference in this appeal.
21. Sri G. Balakrishna Shastri, the learned Counsel for the complainant placing strong reliance on the decision of this Court in the case of J. Rajanna Setty v. Sri Patel Thimmegowda reported in : ILR 1998 Kar 1825 submitted that when the signature on the cheque was admitted by the accused, the Trial Court ought not to have dismissed the complaint and acquitted the accused. In the said case, the defendant the suit against him for recovery of money, had clearly admitted that he had signed blank promissory note and had given the same to the plaintiff. But in the present case, it is not the case of the accused that she signed the blank promissory note or blank cheque and gave the same to the complainant. Therefore, the said decision is of no help to the complainant in this case.
22. For the foregoing reasons, I am of the considered opinion that the Trial Court was quite justified in passing the impugned judgment and order of acquittal. Hence, the appeal is dismissed as being devoid of merits.