IN THE COURT OF THE XIII ADDL DISTRICT& SESSIONS JUDGE,
RANGA REDDY DISTRICT AT L.B.NAGAR.
PRESENT: SRI B. SURESH,
XIII ADDL.SESSIONS JUDGE,
RANGA REDDY DISTRICT
DATED THIS THE 10th DAY OF JULY, 2020
CRIMINAL APPEAL No. 110 OF 2018 Between:-
Smt. P. Rani (Nagarani), W/o. P. Venkatesh, Aged about 35 years, Occ: Housewife, R/o. H. No. 1-3-671, Kavadiguda, Hyderabad.…Appellant
AND
Maddi Narender Reddy @ Sridhar Reddy, S/o. Ramchandra Reddy, Aged about 46 years, Occ: Business, R/o. H. No. 1-57, Thattiannaram (V), Hayathnagar Mandal, Ranga Reddy District. … Respondent
This Criminal Appeal is preferred against the Judgment of
Conviction and Sentence, Dt. 08/01/2018 passed by the X Special
Magistrate Court, R.R. District at Hasthinapuram in:
C.C. No. 207 of 2015 Between:-
Maddi Narender Reddy @ Sridhar Reddy, S/o. Ramchandra Reddy, Aged about 46 years, Occ: Business, R/o. H. No. 1-57, Thattiannaram (V), Hayathnagar Mandal, Ranga Reddy District.… Complainant
AND Smt. P. Rani, W/o. P. Yadagiri, Aged about 40 years, Occ: Housewife, R/o. H. No. 1-3-671, Kavadiguda, Hyderabad.… Accused
CRIMINAL APPEAL No. 111 OF 2018 Between:-
Smt. P. Manjula, W/o. P. Yadagiri, Aged about 40 years, Occ: Housewife, R/o. H. No. 1-3-671, Kavadiguda, Hyderabad.…Appellant
AND Maddi Narender Reddy @ Sridhar Reddy, S/o. Ramchandra Reddy, Aged about 46 years,
CRLA Nos. 110 & 111 of 2018 2 of 57
Occ: Business, R/o. H. No. 1-57, Thattiannaram (V), Hayathnagar Mandal, Ranga Reddy District. … Respondent
This Criminal Appeal is preferred against the Judgment of
Conviction and Sentence, Dt. 08/01/2018 passed by the X Special
Magistrate Court, R.R. District at Hasthinapuram in:
C.C. No. 204 of 2015 Between:-
Maddi Narender Reddy @ Sridhar Reddy, S/o. Ramchandra Reddy, Aged about 46 years, Occ: Business, R/o. H. No. 1-57, Thattiannaram (V), Hayathnagar Mandal, Ranga Reddy District.… Complainant
AND Smt. P. Manjula, W/o. P. Yadagiri, Aged about 40 years, Occ: Housewife, R/o. H. No. 1-3-671, Kavadiguda, Hyderabad.… Accused
These Criminal Appeals are coming up for final hearing in the presence of Sri S. Bhageshwar Rao, Counsel for the Appellants and
Sri Y. V. Hanumantha Rao, Counsel for Respondent and upon hearing both sides, perusing the material on record and having stood over the matter for consideration till this day, this Court delivered the following:-
COMMON JUDGMENT
1.The Criminal Appeal No. 110/2018 is preferred U/s.
374(3) of Cr.P.C by the Appellant i.e., Accused being aggrieved by the Judgment of Conviction and
Sentence, Dt. 08/01/2018 passed by the X Special
Magistrate Court, R.R. District at Hasthinapuram in
C.C. No. 207/2015, wherein the Accused was convicted and sentenced to undergo Simple
Imprisonment for a period of six (06) months and to pay fine of Rs. 15,00,000/- and in default to undergo Rigorous imprisonment for a period of one
CRLA Nos. 110 & 111 of 2018 3 of 57 (01) month for the offence under section 138 of
Negotiable Instruments Act.
2.The Criminal Appeal No. 111/2018 is preferred U/s.
374(3) of Cr.P.C by the Appellant i.e., Accused being aggrieved by the Judgment of Conviction and
Sentence, Dt. 08/01/2018 passed by the X Special
Magistrate Court, R.R. District at Hasthinapuram in
C.C. No. 204/2015, wherein the Accused was convicted and sentenced to undergo Simple
Imprisonment for a period of six (06) months and to pay fine of Rs. 13,00,000/- and in default to undergo Rigorous imprisonment for a period of one (01) month for the offence under section 138 of
Negotiable Instruments Act.
3.Since the Complainant in both the cases are one and the same and since the Accused are co-sisters and since the contention of both the parties in both the cases are one and the same and since the Trial
Court in both the cases is one and the same, the above appeals are being disposed of by this common judgment.
4.The parties as arrayed in the Trial Court are being referred herein for the sake of convenience and to avoid unnecessary confusion.
5.The brief facts of the case in C.C. No. 207/2015 are that the
Complainant is the owner and possessor of H. No. 1-3-671,
Kawadiguda, Hyderabad, wherein the Accused is tenant in the said
CRLA Nos. 110 & 111 of 2018 4 of 57 premises since 6 years and due to the acquaintance the Accused approached him in the last week of May, 2013 for hand loan of
Rs. 12 lakhs for her urgent family necessities and accordingly the
Complainant paid Rs. 12 lakhs to the Accused on 25/05/2013 in the presence of PW2 at Thattiannaram Village on execution of a promissory note in favour of the Complainant by agreeing to repay the said amount on demand with interest @ 12% per annum. Further, on repeated demands made by the complainant, the Accused issued cheque bearing No. 922961, Dt. 25/06/2015 for Rs. 15,00,000/- drawn on Syndicate Bank, Chikkadpally Branch, Hyderabad towards hand loan amount with interest and in turn the complainant presented the said cheque in his bank at ICICI Bank, Dilsukhnagar Branch on 02/08/2015 which was dishonoured as “Signature Differs” vide cheque return memo, Dt. 04/08/2015 which was informed to the Accused but there was no response from her and hence the complainant got issued the legal notice through his counsel on 03/09/2015 by calling upon the
Accused to repay the cheque amount within 15 days from the date of receipt of notice which was unserved with the endorsement as “Refused” and therefore, the complainant filed the present complaint against the Accused by praying the court to punish her for the offence under section 138 of Negotiable Instruments Act.
6.During the course of trial, on behalf of the Complainant, PWs 1 and 2 were examined and Exs. P1 to P10 were marked. On behalf of
Accused, DW1 was examined and got marked Exs. D1 to D19.
7. On consideration of the oral and documentary evidence, the
Trial Court found the Accused guilty for the offence under section 138
CRLA Nos. 110 & 111 of 2018 5 of 57 of Negotiable Instruments Act and accordingly, convicted and sentenced him as stated supra.
8.The brief facts of the case in C.C. No. 204/2015 are that the
Complainant is the owner and possessor of H. No. 1-3-671,
Kawadiguda, Hyderabad, wherein the Accused is tenant in the said premises since 6 years and due to the acquaintance the Accused approached him in the last week of March, 2015 for hand loan of Rs.
13 lakhs for her urgent family necessities and accordingly the
Complainant paid Rs. 13 lakhs to the Accused on 10/03/2015 in the presence of PW2 at Thattiannaram Village on execution of a promissory note in favour of the Complainant by agreeing to repay the said amount on demand. Further, on repeated demands made by the complainant, the Accused issued cheque bearing No. 251641, Dt.
25/07/2015 for Rs. 13,00,000/- drawn on Syndicate Bank, Jai Santosh
Nagar Colony Branch, Habsiguda, Hyderabad towards hand loan amount with interest and in turn the complainant presented the said cheque in his bank at ICICI Bank, Dilsukhnagar Branch on 03/08/2015 which was dishonoured as “Contact Drawer Bank and Present Again” vide cheque return memo, Dt. 04/08/2015 which was informed to the
Accused but there was no response from her and hence the complainant got issued the legal notice through his counsel on 03/09/2015 by calling upon the Accused to repay the cheque amount within 15 days from the date of receipt of notice which was unserved with the endorsement as “Refused” and therefore, the complainant filed the present complaint against the Accused by praying the court to punish her for the offence under section 138 of Negotiable Instruments
Act.
CRLA Nos. 110 & 111 of 2018 6 of 57
9.During the course of trial, on behalf of the Complainant, PWs 1 and 2 were examined and Exs. P1 to P10 were marked. On behalf of
Accused, DW1 was examined and got marked Exs. D1 to D19.
10. On consideration of the oral and documentary evidence, the
Trial Court found the Accused guilty for the offence under section 138 of Negotiable Instruments Act and accordingly, convicted and sentenced him as stated supra.
11.Aggrieved by the Judgment of conviction by the trial Court in
C.C. Nos. 207/2015 and 204/2015, the Accused/Appellants herein have preferred the present appeals on the following grounds:-
a) The Judgments of Trial Court are contrary to law, weight of evidence and against the probabilities of the case.
b)The Trial Court ought to have seen that the Appellants/Accused haveneverobtainedanyhandloansfromthe
Respondent/Complainant and any amount claimed by the
Respondent/Complainant was paid directly by him to Smt. G. Rani, the owner of the property at the request of respective husbands of
Appellants/accused in both the cases and got the said property registered in his name, as such the question of liability either on the part of the Appellants/Accused or of their husbands does not arise.
c)The Trial court ought to have considered that the
Respondent/Complainant in the cross examination as PW1 denied the very signatures of Appellants/Accused on Exs. P1 and P2 as the same were obtained in blank unsigned from the appellant/Accused at the time of paying Rs. 10 lakhs to Smt. G. Rani, the owner of the property
CRLA Nos. 110 & 111 of 2018 7 of 57 under Ex. P7 at the request of respective husbands of Accused in both the cases that to be by declaring the son of the Appellant/Accused Mr.
Sai Raghava as prized subscriber of two private unregistered chits for
Rs. 10 lakhs each carried on by the Respondent after foregoing an amount of Rs. 5 lakhs in each chit and it was a time barred claim cheque as the same was obtained blank unsigned from the husband of
Accused in the year 2010 that to be as the Complainant intends to know about the bank account particulars of accused and without any sign and thereby ought to have rejected the claim as it is only a time barred one but also for the reason of forging the signature of Accused on Exs. P1 and P2. But answer to the question of disputing the signatures of Accused given in open court by the Respondent was corrected to the favour of Respondent/complainant and held that the signature of are that of Accused on Exs. P1 and P2. In fact in the attested copy issued by the Trial Court upon the memo filed by the
Accused on her behalf, it is clearly admitted by the
Respondent/Complainant in his cross examination, Dt. 01/09/2016 at
Page No. 2 Line No. 10 that the Complainant deny the signatures of the Accused on Exs. P1 and P2 in both the cases but not that of
Accused and whereas in the certified copy of the said cross examination part, the said sentence corrected as complainant deny suggestion that signatures of the Accused on Exs. P1 and P2 in both the cases but not that of Accused.
d)The Trial Court ought to have seen that in cross examination of
PW2, it is stated that Ex. P1 was already written by the time he came to the house of the Complainant and that he does not know who scribed the same. Moreover, PW1 in his cross examination admitted
CRLA Nos. 110 & 111 of 2018 8 of 57 that PW2 is his relative, as such the Trial Court ought not to have considered the evidence of PW2 as it is nothing but outcome of a collusive document planted to support the claim of the Complainant.
e)The Trial Court ought to have seen that Exs. P2 in both the cases were returned to the Complainant by the banker with reasons “To contact Drawer/Drawee Bank and to present again” and “Signature
Differs” in both the cases but not for the reason of insufficient funds as claimed by the Respondent/Complainant as the Complainant forged the signatures of Appellants/Accused.
f)The Trial court ought to have seen that the writings in Ex. P1 and Ex. P2 are not that of the Appellants/Accused as admitted by the
Respondent/Complainant.
g)The Trial Court ought to have seen that the Accused have never obtained any hand loan from the Complainant and as to how the
Complainant came into possession of unsigned blank cheque of
Accused.
h)The Trial Court ought to have seen that the Complainant failed to explain the source of his income and by what means he paid loan amount to the Accused and that about the failure on part of
Complainant in producing any cogent evidence substantiating his claim that he paid hand loan amounts to Accused and also overlooked into the admission of PW1 about non showing of the said amounts in his IT
Returns.
i)The Trial Court ought to have seen that the Complainant by fabricating and forging the signatures of Accused in promissory notes
CRLA Nos. 110 & 111 of 2018 9 of 57 and cheques and filed false case to extract huge money and also swallow the house property from the Accused, who are no way concerned with the Complainant.
j)The Trial Court ought to have seen that respective husbands of
Accused in connection with purchasing of the house property to pay the balance sale consideration and Complainant agreed to pay the same has obtained signed blank cheques, signed blank promissory notes, signed blank papers and unsigned blank cheques of Accused with an intention to have information about their bank accounts details etc and paid the amount of Rs. 10,00,000/- directly to the owner of the house property and got it registered in his favour under Ex. P7 and that the question of any liability on the part of Accused does not arise as the amount paid was secured by the complainant by way of Ex. P7 in his favour.
k)The Trial Court ought to have seen that the Complainant having received an amount of Rs. 40,33,900/-from the husbands of the
Appellants under Exs. D1 to D17, in lieu of amount of Rs. 10 lakhs paid by him to the owner of the property under Ex. P7, failed to return the documents lying in his possession and that his failure to execute registered sale deed in favour of the husbands of appellants and illegally initiated criminal proceedings against the Appellants to extract huge money.
l)The Trial Court ought to have seen that the rental agreements i.e., EXs. P8 and P9 are forged and fabricated in the same lines of Exs.
P1 and P2 brought into existence by the Complainant to evict the husbands of appellants from the house property under Ex. P7 illegally
CRLA Nos. 110 & 111 of 2018 10 of 57 and about the denial of execution of Exs. P8 and P9 by the husbands of Appellants and ought to have referred all those documents for expert opinion under section 45 of Indian Evidence Act for verification of signatures of Appellants and their husbands on Exs. P1, P2, P8, P9 and D1 to D17 as the writings on Exs. D1 to D17 were denied by the
Complainant. The Trial Court without considering all these aspects came to a conclusion on its own presumptions and assumptions and passed the judgment.
m)The Trial Court ought to have seen that on 19/03/2010 husbands of Appellants purchased a house property bearing municipal
No. 1-3-671 consising 6 RCC rooms and 4 tiled rooms with toilet and bathroom in all admeasuring 120 square yards situated at Kavadiguda,
Hyderabad for a total consideration of Rs. 18 lakhs from its original owner namely Smt. G. Rani, W/o. late G. Anjaiah, r/o. H. No. 12-3-12,
Moosapet Village, Balanagar Mandal and that Smt. G. Rani having received Rs. 3,20,000/- from them towards part sale consideration executed Agreement of Sale, Dt. 19/03/2010 in their favour and that they have also paid further sum of Rs. 4,80,000/- towards further advance and due to financial crisis, they could not pay the balance sale consideration of Rs. 10 lakhs to Smt. G. Rani within stipulated 3 months from the date of Agreement of Sale. Hence, left with no other alternative, they approached the complainant through M. Ashok to valid the hand loan of Rs. 10 lakhs and the Complainant agreed for the same with a condition asking them to join in two private chits of Rs. 10 lakhs run by him so that from the said two chits amount he will pay
Rs. 10 lakhs to them so as to pay to Smt. G. Rani and demanded to get the house property registered in his name till the repayment of the
CRLA Nos. 110 & 111 of 2018 11 of 57 said amount so as to keep the same as collateral security and that they subscribed two chits of Rs. 10 lakhs each in the name of their son
P. Sai Raghav and that he was declared prize subscriber of the said two chits of Rs. 10 lakhs each AND PAID Rs. 10 lakhs out of Rs. 20 lakhs to Smt. G. Rani and got the house property registered in his name under Ex. P7 by obtaining signed blank cheques, signed blank promissory notes, signed blank papers of husband of Appellant and her co-sister Smt. P. Nagarani and also unsigned blank cheques of
Appellants and account details qetc and that the entire amount with interest and penalties in all amounting to Rs. 40,33,900/- were paid under Exs. D1 to D17 to the Complainant in lieu of Rs. 10 lakhs and that Complainant having received used to issue receipts for the lesser denomination i.e., to say if he receives Rs. 1,69,000/- from them, he used to issue receipt for Rs. 1,690/- on the pretext that it is a practice prevailing with him as he will not clear them and that the husbands of
Appellants believed and trusted the Complainant and accordingly paid a sum of Rs. 40,33,900/-.
n)The Trial Court ought to have seen that once the amount paid to the owner of the house property at the request of husbands of appellants and got secured the same by Ex. P7, the question of liability either on the part of appellants or on the part of their husbands does not arise.
o)The Trial Court ought to have seen that husbands of appellants discharging of liability under EXs. D1 to D17 which were issued for lesser denomination and also non returning of the documents to them on the pretext of its missing by the Complainant.
CRLA Nos. 110 & 111 of 2018 12 of 57
p)The Trial Court ought to have seen about admission of
Complainant in his cross examination as PW1 about non-scribing of
Exs. P1 and P2 and denial of signatures of appellants on both the documents by the appellants.
q)The Trial Court ought to have seen the words and figures including the date on Ex. P1 and Ex. P6, which were not scribed by appellants and ought to have seen that the same is admitted by
Complainant and supported by PW2.
r)The Trial Court ought to have seen the admissions of PWs 1 and 2 in their respective cross examinations and also failure on the part of the Complainant in proving the existence of any legally enforceable debt against Appellants.
12.No oral or documentary evidence has been adduced before the
Appellate Court.
13.Heard both sides and perused the material on record.
14.Now, the point for consideration is “Whether the Judgments of
Conviction and Sentence, Dt. 08/01/2018 passed by the X Special
Magistrate Court, Ranga Reddy District at Hasthinapuram in C.C. Nos.
207/2015 and 204/2015 are contrary to law, weight of evidence and probabilities of the case and requires any interference by this Court ?
15.POINT: The case of the Complainant is that the Accused in both the cases being tenants of the complainant, they approached him for a hand loan of Rs. 12 lakhs in C.C. No. 207/2015 and a sum of Rs.
13,00,000/- in C.C. No. 204/2015 for their urgent family necessities
CRLA Nos. 110 & 111 of 2018 13 of 57 and accordingly the complainant advanced the said amounts to the respective accused in both the cases and in discharge of the said hand loan amounts they respectively got issued cheques for a sum off Rs.
15 lakhs in C.C. No. 207/2015 and Rs. 13 lakhs in C.C. No. 204/2015 and the complainant got presented the said cheques for realization of the said amounts but the said cheques were dishonoured for the reason as “Drawer Signature differs” in C.C. No. 207/2015 and as “Contact Drawer/Drawee Bank and present.” Then the Complainant got issued legal notice to both the accused herein but they refused to receive the notice nor paid the said amount as such he got filed complaints.
16.The contention of the Accused in both the cases are that they deny that they are the tenants of the complainant and they deny with regard borrowing of hand loan amounts from the Complainant herein and they also further denied with regard to issuance of the cheques towards discharge of legally enforceable liability to the complainant and they also deny their signatures on the cheques as well as promissory notes alleged to have been contended by the complainant that they got executed promissory notes as well as cheques for discharge of the legally enforceable debt and their contention is that the complainant on the particular day of advancing the amount had no capacity to advance such loan and their contention is that their husbands intended to purchase the house bearing No. 1-3-671 situated at Kawadiguda, Hyderabad i.e., the property mentioned in Ex.
P7 and they entered into agreement of sale with the owners of the said property by name G. Rani, W/o. G. Anjaiah and also paid advance and part sale consideration for purchase of the said house and as they fell
CRLA Nos. 110 & 111 of 2018 14 of 57 short of finance for purchase of the said property and as the vendor of the said property threatened them for cancellation of the said agreement by forfeiting their advance and earnest money and as there was no other alternative, they approached the complainant through their relative by name M. Ashok for a hand loan of Rs. 10 lakhs and at that time the complainant laid down the conditions that the property should be registered in the name of the complainant and that they should join in to private chits being held by the complainant and also he obtained various signed documents, promissory notes, cheques from their husband and unsigned cheques from the Accused herein and accordingly Ex. P7 was registered in the name of the complainant and even after their discharge from the liability of the complainant by paying the amount of Rs. 40,33,900/- in total and demanded for return of the said documents, the complainant contended that the documents were misplaced and with his consent and knowledge they affected renovation to the said house and thereafter the complainant with malafide intention again demanded another sum of Rs. 28 lakhs to convey the property in their name i.e., to the husband of the accused contending that the value of the property has been increased and when they failed to fulfill the demands of the complainant, the documents were fabricated by the complainant and got filed these two cases against the Accused.
17.The first and foremost contention of the Complainant is that the
Accused in both the cases i.e., C.C. No. 207/2015 and 204/2015 are the tenants of the complainant. Now the point for consideration is whether such relationship is being existing between the complainant and the Accused i.e., whether the Complainant is the landlord of the
CRLA Nos. 110 & 111 of 2018 15 of 57
Accused in both the cases. The Complainant herein as per Ex. P7 claimed to be the owner of the property wherein both the Accused are living. It is observed that Ex. P7 is the GPA. On careful perusal of Ex.
P7, it is not a sale deed wherein the complainant becomes owner of the said property. It is the Agreement of sale cum GPA, wherein consideration was alleged to be Rs. 26,54,000/- wherein the GPA holder cum the person titled as vendee had paid only a sum of Rs.
26,50,000/- and there remains an amount of Rs. 4,000/- which can be paid at the time of registration of the sale deed. So, that itself discloses that there is no complete execution of the sale deed to acquire title to the property. In the said document, the vendor authorized the vendee i.e., the complainant, to look after and manage the property and sell the same and it is further averred in the document that the said document of agreement of sale cum GPA is not a final document and confirmation deed will be the sale deed. So, the contents of the said document, which is relied upon by the complainant discloses that he is not the owner of the property. Ex. P7 i.e., agreement of sale cum GPA was executed on 18/09/2010. Till now the complainant herein did not obtain the sale deed from the vendor. Had it been true that the complainant happened to be real purchaser of the suit schedule property and has got capacity to advance lakhs of rupees he ought to have paid the balance sale consideration of Rs. 4,000/- as early as possible from the date of execution of agreement of sale cum GPA and would have obtained the sale deed in his name.
18.Coming to the evidence of PW1, he deposed as follows:
CRLA Nos. 110 & 111 of 2018 16 of 57 “The municipal taxes and other documents were not transferred in my name including the electricity bills and water bills after my purchase of the property.”
Atleast the Complainant could have mutated his name with regard to the said property in electricity department, municipal office etc to show that he is the owner of the said property. PW1 in his evidence further deposed as follows:
“I purchased the property from one Rani but I do not know her initial who was residing near BHEL, Patancheru area. I do not know whether the said Rani was residing at
Moosapeet. At this stage the defence counsel had shown
AGPA document executed by G. Rani in favour of PW1 wherein the residential address of the vendor is shown as 12-3-12, Moosapet Village, Balanagar Mandal.”
So, had it been true that there was seller and purchaser relationship between the complainant and the owner of the property i.e., G. Rani, the particulars of the vendor could have been known to the complainant and where she was living as there was an opportunity for him to negotiate with regard to the property and complete transaction of the sale. So, the complainant unaware about the residence of vendor would only goes to support the contention of the
Accused. Had it been true that the complainant was purchaser of the property, he would not have deposed as follows:
“I do not know whether already the property was executed by the same Rani as vendor in favour of Yadagiri
CRLA Nos. 110 & 111 of 2018 17 of 57 husband of Accused in this case i.e., in C.C. No. 204/2015 and Venkatesh the husband of Accused in C.C. No.
207/2015 on 19/03/2010. I do not know whether the above transaction was executed for Rs. 28 lakhs.”
If at all the complainant was purchaser, he could have denied the fact that they got entered into agreement of sale with the husband of the accused herein for purchase of the said property.
19.Further, in support of the contention of the complainant herein to establish the relationship between the Complainant and Accused, the complainant relied upon Exs. P8 and P9 which documents are alleged to be rental agreements between the husbands of the Accused and the complainant herein. The said rental agreements are also
dated 18/09/2010 i.e., the date of agreement of sale cum GPA. On
careful perusal of Ex. P7, there is no mention with regard to any person living in the said property as tenants as on the date of execution of Ex. P7 i.e., Agreement of sale cum GPA. If at all there is a landlord and tenant relationship between the husband of the Accused and the Complainant after he got purchased the property, he could have let out the said property as early as possible but it could not be on the same day of the execution of GPA itself and the rental deeds have been executed in favour of the Complainant with the husband of the Accused herein. Those documents ought to have been got obtained other than the date of Ex. P7. Even there is no attornment of tenancy by vendors of the property i.e., P. Rani in favour of the
Complainant. PW1 in his evidence deposed as follows:
CRLA Nos. 110 & 111 of 2018 18 of 57 “The said G. Rani has executed the document handing over the attornment of tenancy rights of the
Accused in both the cases to me. I am ready to file the said documents.”
But the Complainant herein failed to produce the said documents. If at all husbands of Accused are living in house being tenants of the said property, the landlord who attorned the tenancy in favour of the complainant by executing the document in favour of the purchaser i.e., the complainant herein and notice ought to have been issued to the husbands of Accused herein alleging that she attorned the tenancy in favour of the complainant and from that day onwards the rents should be paid to the complainant. But no such document of attornment of tenancy is being made by the vendor of the complainant and execution of such rental deeds on the date of agreement cum GPA is appearing to be unreliable, unrealistic and beyond the imagination.
Moreover, the title is not yet transferred in favour of the complainant, as sale deed is not yet executed. Hence, it would be G. Rani the vendor of the house being the owner of the house. So, these aspects also strengthen the contention of the Accused herein.
20.Further, with regard to the admissibility of the rental agreements, admittedly the documents i.e., Exs. P8 and P9 are in the names of the husbands of the Accused herein as they being tenants of the Complainant but it is not executed by the Accused herein as tenants of the Complainant. On perusal of Ex. P8, the signature which is present on the foot note of the documents is being corrected i.e.,
CRLA Nos. 110 & 111 of 2018 19 of 57 first page (stamp paper). Coming to the evidence of PW1, he deposed as follows:
“It is true that there are no signatures of husbands of the Accused in Exs. P8 and P9 on the stamp papers pertaining to the C.C. Nos. 204/2015 and C.C. No.
207/2015 respectively.”
So, even according to the Complainant/PW1, both the parties signatures are not present on Exs. P8 and P9, more particularly the tenant name is not present on the document. Thereafter PW1 further deposed as follows:
“It is true that in both EXs. P8 and P9 there were earlier signatures on Rs. 100/- stamp papers which was erased by me with white liquid fluid and then I affixed my signatures on both the documents.”
21.Even on perusal of stamp papers, corrections made therein is clearly visible to the naked eye and it may be by PW1. So, that itself discloses that the document is being tampered. In such circumstances we cannot rely upon the said documents. The learned Magistrate contended that the accused admitted the relationship between the
Accused and their husbands and the complainant which is a laring mistake committed by him and even on comparison of the signatures of the husbands of the Accused on Exs. P8 and P9 with that of Exs.
D18 and D19 as per section 73 of Indian Evidence Act they are alleged to be not one and the same. But on examination of the document under Ex. P8 as per section 73 of Indian Evidence Act which is
CRLA Nos. 110 & 111 of 2018 20 of 57 between the Complainant and one P. Yadagiri with that of signature in
Ex. D18 i.e., the PAN Card of Yadagiri and the deposition of DW1 i.e.,
Yadagiri is examined as DW1, the signatures are not tallying even to the naked eye, more particularly the signature on Ex. P8 with that of signature of Yadagiri on Ex. D18. Likewise also with regard to Ex. P9, on the stamp paper the signature of said Venkatesh is not present and the signature is being tampered with only the signature of the complainant on the stamp paper and the signature of Venkatesh when compared with Ex. P9 with that of Ex. D19 i.e., PAN Card of
Venkatesh, the signatures are completely different which are visible to the naked eye. So, that itself discloses that the persons who executed
Exs. P8 and P9 are not the husbands of Accused and it appears that the documents are fabricated. PW1 further deposed as follows:
“It is true that Rs. 100/- stamp paper which contains the date as 13/04/2010 of the District Registrar, R.R.
District, East pertaining to Exs. P8 and P9. It is also true that date of purchase of stamp paper in Exs. P8 and P9 is 15/09/2010 and both the documents are executed as per
Exs. P8 and P9 on 18/09/2010”.
22.PW1 in his cross examination further deposed as follows:
“It is true that Ex. P7 document is dated 18/09/2010. Immediately after registration under Ex. P7 documents under Exs.P8 and P9 were executed by him outside the registration office around 6.00 PM on the same day.”
So, this evidence of PW1 completely demolishes the relationship of landlord and tenant between the complainant and the husband of
CRLA Nos. 110 & 111 of 2018 21 of 57 the Accused, as per Exs. P8 and P9, as it is not contended by the complainant that they (i.e., husbands of Accused in both the cases) also followed him to the Registrar Office for execution of rental deeds.
Had it been true, that only strengthens the case of the Accused that they being tenants, they got the GPA got executed in favour of the
Complainant, as such they had been to the registrar office to get the documents executed in the name of the complainant i.e., GPA and it appears that these Exs. P8 and P9 are being fabricated by the complainant to create the relationship as landlord and tenant between the husbands of the Accused and the complainant after the cross examination of the complainant as he recalled him and got marked
Exs. P8 and P9 as additional evidence on his behalf. When the complainant failed to establish that those documents are executed by the husbands of Accused as the signatures are being tampered and the signatures of the tenants i.e., husbands of the Accused are not tallying with their original signatures on PAN cards and when the Accused along with their husbands deny the relationship of landlord and tenant between the complainant and accused as well as their husbands. The learned Magistrate throughout the judgment concluded that the accused admitted the relationship between them, which was a wrong conclusion by the Trial Court. On careful perusal of entire evidence of
DW1, nowhere it is alleged or admitted by the Accused with regard to existence of landlord and tenant relationship between them and they paying rents to the complainant.
23.PW1 in his cross examination deposed as follows:
“No such documents has been executed by husband of the accused by handing over the rights of tenancy from
CRLA Nos. 110 & 111 of 2018 22 of 57 them in CC 204/15 & CC 207/15 as stated by me earlier.
At this stage the defence counsel has shown the signature of the one G. Rani on Rs. 100/- stamp paper dt:
22.08.2013 and confronted with the witness with regard to the signature and the witness admitted that it belongs to
G. Rani. It is true that the said the G. Rani has executed
Agreement of sale cum GPA under Ex. P7. Again the defence counsel has shown another signature of G. Rani on Rs. 100/- stamp paper, Dt. 16/09/2010 but the witness denied the signature on it. The witness again adds that he also denies the earlier signature shown to him on stamp paper, Dt. 22/08/2013”
So, this evidence of PW1 is oscillating with regard to the signatures being identified by him on various documents as he is changing his version from time to time, as such his evidence is unreliable.
PW1 in his evidence further deposed as follows:
“At the time of my purchasing the property, there was half slab with tiled portion which is only a ground floor portion. I do not know whether the husband of the
Accused Yadagiri and one Venkatesh have demolished the entire portion and constructed G+2 in the said portions in the year 2011-12.”
Had it been true that the complainant is the owner of the said property, he could not have denied the fact that the husbands of the
CRLA Nos. 110 & 111 of 2018 23 of 57
Accused have demolished the property and constructed new house as without his knowledge, there may not be alterations or additions or renovations or any kind of improvement in the property. So, pleading ignore by PW1 about husbands of Accused being constructing house or renovating house only disclose that he is not regularly visiting the house property and he is not aware anything about the said property and this fact only goes to show that he is not the owner of the property and that the document was only obtained by the husbands of
Accused in the name of the Complainant. PW1 further deposed as follows:
“Initially I have let out the portion for Rs. 8,000/- in both the cases and presently the rent is Rs. 10,000/- per month. Since for the past 6 months the accused in both the cases are defaulters and not paying rents. I have not issued any notice to the Accused for not paying rents and for handing over the portions back to him. “
24.If at all the complainant is the owner of the property, wherein the husbands of the Accused along with Accused are living as tenants, the complainant could have initiated actions against them for evicting them from the said premises, if they commit willful default in payment of rents. So, the silence on his part without initiating any action against the Accused will only strengthen the contention of the Accused that they are not the tenants and they are residing in the house as purchasers of the said house, though documents are yet to be conveyed in their names. PW1 further deposed as follows:
CRLA Nos. 110 & 111 of 2018 24 of 57 “I do not know whether the said house where the
Accused are residing as my tenant has been purchased by the husbands of the Accused in both the cases from Smt.
G. Ran, the original owner of the property for the sale consideration of Rs. 18 lakhs under the sale agreement,
Dt. 19/03/2010. It is true that I also purchase the same
property from the said G. Rani. I know Yadagiri and
Venkatesh since 2010 since I purchased the property. It is true that I purchase the property from the said Yadagiri and Venkatesh under registered agreement of sale cum
GPA vide document No. 3026/2010, Dt. 18/09/2010. I have not filed the above said document before the Court.
The names of Yadagiri and Venkatesh are not shown as tenants in the said property in the registered document.”
25.So, this evidence of PW1 that he is not aware about the Accused purchasing the property and again admitting the fact that he purchased the property from said Yadagiri and Venkatesh under registered agreement of sale would only strengthen the contention of the Accused herein that when their husbands approached the complainant for hand loan amount to purchase the said house, he demanded that the documents should be executed in his favour as such it was executed by them in favour of the complainant which also strengthens the contention of the Accused as on the said date, they were present at the Registrar Office as deposed by the complainant earlier therein that tenancy document was executed by the Accused at the Registrar Office. As an afterthought after completion of his evidence, he got filed Exs. P7 to P10. In this evidence it is also
CRLA Nos. 110 & 111 of 2018 25 of 57 disclosed that after cross examination of PW1 to overcome the cross examination, the Complainant has fabricated the said documents i.e.,
Ex. P8 to P10 and got filed these documents.
26.So, in the light of above discussion, it categorically establishes the fact that the complainant herein failed to establish the fact that there is a landlord and tenant relationship between the Accused and the Complainant herein. Even for arguments sake, if the said contention is considered to be true, the said relationship, it should be between husband of the Accused and the complainant but there is no iota of evidence in the entire evidence of PW1 with regard to acquaintance between the Complainant and the Accused herein. Had they been wives of Yadagiri and Venkatesh, they might be living in the house but the transactions are only between the husbands of the
Accused and the Complainant but not between the Accused and the
Complainant. Further in support of this contention of the Complainant, nowhere in the evidence of PW1 or in the pleadings of the complaint, it is stated with regard to the acquaintance between the Complainant and Accused herein except contending that she being tenant, she approached the Complainant for a hand loan of huge amount of
Rs. 13 lakhs and Rs. 12 lakhs and on considering their request he advanced the said amounts which also appears to be unrealistic and unbelievable in view of the following discussion.
27.PW1 in his evidence further deposed as follows:
“At the time of handing over cash to the Accused, no other person was present on the accused side in both the cases.”
CRLA Nos. 110 & 111 of 2018 26 of 57
PW1 in his legal notice i.e., Ex. P4 mentioned that on the acquaintance with the complainant and the accused i.e., they being tenant i.e., Accused and her husband approached the complainant in the month of March, 2015 for hand loan of Rs. 13,00,000/-. But when coming to the complaint and evidence of PW1, he simply deposed that the Accused alone approached the Complainant for borrowing the amount. In C.C. No. 204/2015 PW1 deposed as follows:
“It is true that the accused in both the cases are housewives”
So, a housewife alone coming to the Complainant and sought for a huge amount of Rs. 13 lakhs and Rs. 12 lakhs respectively and he being aware that they are housewives advancing such amounts without informing to their husbands or their husbands being accompanied by them to receive the same is appearing to be unrealistic, unbelievable and unreliable.
28.PW1 in C.C. No. 207/2015 in his chief affidavit as well as in the complaint alleged that the Accused is his tenant since 5 to 6 years and on that acquaintance the accused approached him in the last week of
May, 2013 for the hand loan of Rs. 12 lakhs. The contention of the
Defacto Complainant is that he got purchased the flat on 18/09/2010.
The date of lending the amount is shown as 25/05/2013. So, the period from the date of purchase till the date of lending the amount is only 2 years 8 months. But PW1 contends that he knew the Accused since 5 to 6 years. There is no evidence to show as to how PW1 got acquainted with the Accused herein and in fact, Accused is not the person, who obtained the premises on rents from the Complainant.
Even according to the Complainant, as per Exs. P8 and P9, the rental
CRLA Nos. 110 & 111 of 2018 27 of 57 agreements, it was their husbands who approached the complainant for letting out premises. If we believe the contention of the complainant, the Accused being housewives, their husbands obtained premises on rent, there is no likelihood of any acquaintance between the Complainant and the Accused herein. Mere contention of the
Complainant is not sufficient to support his contention with regard to the acquaintance between the complainant and Accused. In C.C. No.
204/2015 the same fact is contended that the Accused is the tenant of the complainant in the premises since 6 years and the accused approached him for a hand loan of Rs. 13 lakhs and on 10/03/2015 he advanced the said amount. In C.C. No. 207/2015 in his complaint, the complainant stated that the Accused agreed to repay the said amount on demand with interest @ 12% per annum and on his repeated demands, the Accused has issued the account payee cheque for a sum of Rs. 15 lakhs on 25/06/2015. Coming to the evidence of PW1, in his chief examination, he deposed as follows:
“I further submit that the Accused paid interest for one year period and thereafter failed to pay interest also and on my repeated demands, Accused issued an account payee cheque bearing No. 922961, Dt. 25/06/2015 for an amount of Rs.
15,00,000/- drawn on Syndicate Bank, Chikkadpally Branch,
Hyderabad in my favour towards discharge of above said hand loan amount including interest.”
29.So, after leaving one year from 25/05/2013 to 24/05/2014, if we calculate the interest till 25/06/2015 i.e., from 24/05/2014 to 25/06/2015 it is about 13 months and the interest accrued would be
Rs. 1,56,000/- for 13 months and adding to the principal amount, the
CRLA Nos. 110 & 111 of 2018 28 of 57 total amount due will be Rs. 13,56,000/-. So, obtaining the cheque for
Rs. 15,00,000/- is more than the amount due by the Accused to the
Complainant. So, there is no explanation on the part of the complainant with regard to obtaining cheque for Rs. 15 lakhs. It is settled legal position that if the liability of accused as on the date of presentation of cheque is even one rupee less or more than the cheque amount, provision of Section 138 of NI Act is not attracted to dishonour of such a cheque.In an authority between Angu
Parameswari Textiles (P) vs. Sri Rajam & Co. (disposed on 24 January, 2001), the Hon’ble High Court of Madras held as follows:
” Section 138 of the Negotiable Instruments Act reads
that where any cheque was drawn for payment of any amount
of money for the discharge in whole or any part of any debt or
other liability and the same is dishonoured by the Bank, the
person who drew the cheque shall be punishable. Therefore, the
cheque drawn should be towards the discharge of either the
whole debt or part of the debt. If the cheque is more than the
amount of the debt due, I am afraid, Section 138 cannot be
attracted. This is a case where the cheque amount was more
than the amount due on the date when the cheque was
presented. The presentation of the cheque and subsequent
dishonour alone raises a cause of action. When the cheque
cannot be said to be drawn towards the discharge of either the
whole or part of any debt or liability, Section 138 is not
attracted. On this sole ground, the complaint is liable to be
quashed and is accordingly quashed. The petition is, therefore,
allowed, connected Crl. M. P. Nos. 9221 and 9222 of 2000 and
Crl. M. P. No. 455 of 2001 are closed.”
CRLA Nos. 110 & 111 of 2018 29 of 57
In C.C. No. 204/2015 the alleged amount being advanced by the
Complainant to Accused is on 10/03/2015. It is observed that from 24/05/2014 the Accused in C.C. No. 207/2015 was not at all paying any interest or principal amount to the Complainant even according to his chief affidavit and again after 10 months the Accused in C.C. No.
204/2015 who is none other than the co-sister of Accused in C.C. No.
207/2015, when approached the complainant for Rs. 13 lakhs, ignoring the fact of nonpayment of amount in C.C. No. 207/2015, the complainant simply advancing the amount to her without even charging any interest is appearing to be unnatural, unbelievable and it is not inspiring the confidence of the Court to believe such version.
30.The next aspect to be considered in this case is with regard to capacity of the Accused to advance the said amount as on the date of advancing, as the Accused also pleaded with regard to capacity of the complainant in advancing the said amount. The learned Magistrate opined that as the Complainant in his evidence deposed that he is carrying on real estate business and normally he possesses Rs.
1,000/- to Rs. 1,00,00,000/- also in connection with real estate and said fact is not being denied by the Accused by giving suggestion that he is not having such amount, as such the contention of PW1 with regard to his capacity is being established that he is having capacity to advance such amount.
31.Let us see as to whether the contention of PW1 can be relied upon or not. PW1 in his evidence deposed as follows:
CRLA Nos. 110 & 111 of 2018 30 of 57 “I am doing real estate business in the name of
Durga Matha Real Estates at Thattiannaram, which is not registered.”
So, PW1 deposed that he does not have any license or he does not have office for carrying real estate business but he contended that he is running business in the name and style of Durga Matha Real
Estates. But no document is produced to that extent. There is no office and it is not registered either. So, there is no evidence to establish that he is carrying on real estate business.
PW1 further deposed as follows:
“I am an income tax assessee. I have not shown the present transaction in my IT Returns in CC 204/2015 and
CC 207/15 in the respective IT Returns. I don’t possess
the exact cash amount with me always. Though the present transaction is not shown in I.T. Returns, normally
I possess Rs. 1,000/- and even Rs. 1 crore also in connection with dealing with real estate business.”
So, on one hand it is contended by the Complainant that he do not possess the amount and on the other hand he contends that he would be having an amount of Rs. 1,000/- to Rs. 1 crore with regard to his business. So, this inconsistent plea of the complainant with regard to his business, which is not registered and even he did not show the amount in income tax returns. So, the contention of the complainant with regard to running of real estate business and his capacity to lend the amount cannot be believed. He further deposed as follows:
CRLA Nos. 110 & 111 of 2018 31 of 57 “I am not in the habit of showing the amount in IT returns even in case I possess Rs. 1 crore and also about its expenditure. I have no license to do real estate business.”
32.Even though the Accused is not having any office, he do not have any license to run real estate business and he categorically deposed that he is not in the habit of showing the amount in IT returns. After this evidence has been completed, the Complainant recalled himself who is examined as PW1 and relied upon Exs. P7 to
P10. Ex. P10 is the income tax returns of Complainant for the year 2015-16. On perusal of the said document, it is not an authenticated document and there is no endorsement of the IT Officials with regard to submission of this statement to them as his returns nor it is attested by any auditor alleging that it is the returns filed by the complainant. But in one of the sheets of the said returns, he has shown loans and advances i.e., a sum of Rs. 9 lakhs to R. Vijay Laxmi and some of Rs. 8 lakhs to D. Jagadish Chary and a sum of Rs. 13 lakhs to P. Manjula i.e., the Accused in C.C. No. 204/2015 and others a sum of Rs. 10,640/-. PW1 categorically deposed in his evidence that he has not submitted IT returns showing the amounts in C.C. No.
204/2015 or the amount in C.C. No. 207/2015 and again he got filed
Ex. P10 IT returns showing the amounts of the Accused in C.C. No.
204/2015 along with other amounts being advanced by the complainant which discloses that he has manipulated or fabricated the said documents after completion of his cross examination and got filed
Ex. P10, which is not authenticated either by the auditor or by the income tax officials by their office seal and sign showing that it is the
CRLA Nos. 110 & 111 of 2018 32 of 57 income tax returns filed by the complainant. Hence, the said document cannot be relied upon and the inconsistent plea taken by the complainant with regard to showing the amounts of loans of the
Accused and others in IT returns also cannot be believed that on that particular day he is having capacity to lend the amount to the Accused.
33.There is no document filed by PW1 to substantiate his contention that in C.C. No. 204/2015 i.e., on 10/03/2015 he had a sum of
Rs. 13 lakhs and in C.C. No. 207/2015 as on 25/05/2013 he had an amount of Rs. 12 lakhs. PW1 did not file any statement of account of his business or from where he secured the amount i.e., any authenticated document with regard to source of income. Even the
Complainant did not file any statement of account or account books or any authenticated document to show that on those particular days he was possessing amounts of Rs. 12 lakhs and Rs. 13 lakhs, which were alleged to be lent to the Accused. In the light of the above discussion,
PW1/Complainant lead some inconsistent statement with regard to subsisting legally enforceable debt between himself and Accused.
34.With regard to the capacity of the Complainant herein to lend such a huge amount, the learned counsel for the Accused relied upon the following authorities:
Between John K. Abraham Vs. Simon C. Abraham and another reported in 2014 (1) SCC (Crl.) 791, wherein their Lordships held as follows:
“It has to be stated that in order to draw the presumption under section 118 read along with 139 of the
Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had required funds
CRLA Nos. 110 & 111 of 2018 33 of 57 for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.”
Between K. Subramani Vs. K. Damodara Naidu reported in 2015 (1) SCC (Crl.) 576, wherein their Lordships held as follows:
“Though the complainant was an income-tax assessee he had admitted in his evidence that he had not shown the sale of site no. 45 in his income tax return. On the contrary the complainant has admitted in his evidence that in the year 1997 he had obtained a loan of Rs.
1,49,205/- from L.I.C. It is pertinent to note that the alleged loan of Rs. 14 lakhs is claimed to have been disbursed in the year 1997 to the Accused. Further the complainant did not produce bank statement to substantiate his claim. The Trial Court took into account the testimony of the wife of the complainant in another criminal case arising under section 138 of the N.I. Act in which she has stated that the present appellant/accused had not taken any loan from her husband. On a consideration of entire oral and documentary evidence, the trial court came to the conclusion that the complainant had no source of income to lend a sum of Rs. 14 lakhs to the accused and he failed to prove that there is legally enforceable debt payable by the Accused to him.”
Between K. Krishna Reddy Vs. K. Rajender and another reported in 2011 Law Suit (AP) 7450, wherein their Lordships held as follows:
“In view of the inconsistent versions of PW1 about the subject transaction and the execution of Exs. P1 and
P4, the non mentioning of the loan in the income tax returns of PW1, the non production of any bank statement, the non filing of any books or statements of account and
CRLA Nos. 110 & 111 of 2018 34 of 57 the absence of any oral or documentary corroboration for the claims of PW1 about the availability of such a huge sum and advancing money on 08/09/1999 assume significance, moreso, in the face of total denial of any acquaintance between them by the accused. The total variance between the contents of Ex. P5 and the evidence
before the Criminal Court makes the claims more doubtful
and the existence of a legally enforceable debt or liability itself becomes suspect.”
Between Sanjay Mishra Vs. Kanishka Kapoor @ Nikki reported in 2009 Law Suit (Bom) 603, wherein their Lordships held as follows:
“A cheque issued in discharge of alleged liability of repaying “Unaccounted cash amount cannot be said to be a cheque issued in discharge of a legally enforceable debt or liability within the meaning of explanation of section 138 of the said Act. Such an effort to misuse the provision of section 138 of the said Act has to be discouraged.”
In this case the complainant did not produce any documentary evidence to show that as on the date of lending such amount, the complainant was possessing such huge amount with him and he did not file any bank statement or account to establish the source of securing funds, as such the complainant failed to establish that he is having capacity to lend such huge amounts to the Accused.
35.The contention of the Complainant with regard to borrowing of the amount is that the Accused got executed promissory note in his favour in the presence of attestor and he relied upon Ex. P1 for passage of the amount and that the Accused in both the cases got issued cheques under Ex. P2. The Accused herein denied to have issued cheques under Ex. P2 in both the cases. The Accused herein
CRLA Nos. 110 & 111 of 2018 35 of 57 have denied to have executed promissory notes and cheques. Their contention is that as their husband with regard to purchase of the property have approached the Accused for a loan of Rs. 10 lakhs and at that time the Complainant obtained unsigned and blank cheques from them. The Accused have denied the execution of promissory note and issuing of the cheques for discharge of the amount under the said promissory note in both the cases. In support of the contention of PW1 lending amount to the Accused, the Complainant relied upon
Ex. P1, which is promissory note.
36.On perusal of executants signature on Exs. P1 and P2 in C.C. No.
204/2015 i.e., cheques and promissory notes, both the signatures are similar in nature. But as per section 73 of Indian Evidence Act, when the signatures on Exs. P1 and P2 are compared with the signatures of the Accused in her examinations under sections 251 Cr. PC., 313 Cr.
P.C., and 255 (2) of Cr. P.C., the strokes of the signatures on those documents are quite different from that of the signatures on Exs. P1 and P2, more particularly in the signatures on Ex. P1 and P2 there is a line underneath the signature of the persons on Exs. P1 and P2 but the
Accused is not in the habit of affixing line under her signatures. But the Trial Court opined that the signatures are one and the same. But on minute observation of the signatures, it can be seen that the signatures present on Exs. P1 and P2 are quite different from all the signatures of Accused on her examinations under sections 251 Cr. PC., 313 Cr. P.C., and 255 (2) of Cr. P.C. In this case even the bank returned the cheque with a memo “contact drawee bank and present again.” If at all the signatures would have tallied, they could have
CRLA Nos. 110 & 111 of 2018 36 of 57 returned the cheque with an endorsement of insufficient funds or any other reason.
37.In C.C. No. 207/2015 even PW1 is unaware about the name of the Accused. The name of the Accused in C.C. No. 207/2015 is stated to be P. Nagarani but on perusal of the signatures on the promissory note alleged to have been executed by the Accused in C.C. No.
207/2015, it is mentioned as P. Rani and likewise also on Ex. P2 i.e., cheque as “P. Rani”. But as per section 73 of Indian Evidence Act, when the signatures on Exs. P1 and P2 are compared with the signatures of the Accused in her examinations under sections 251 Cr.
PC., 313 Cr. P.C., and 255 (2) of Cr. P.C., the signatures of Accused are completely different. Even in this case in the promissory note it is mentioned as the name of the borrower as P. Rani but not as P. Naga
Rani. In this case, the cheque returned memo i.e., Ex. P3 is returned with an endorsement “Signature differs.” So, even the bank categorically returned the cheque with an endorsement alleging that the signature of the drawer is not tallied with the specimen signatures.
PW2 who is an attestor to the promissory note, deposed in his evidence that by the time he saw the promissory note, Rani signature was already there. So, neither Pw1 nor PW2 witnessed the Accused affixing her signature on the promissory note. So, in such circumstances, the execution of promissory note by Accused is not established.
38.Further, in support of the contention of the Complainant with regard to execution of the promissory note, the complainant got examined the attestor of the promissory note. In C.C. No. 204/2015
CRLA Nos. 110 & 111 of 2018 37 of 57 the attestor is stated to be M. Srikanth Reddy. In the cross examination PW1 deposed as follows:
“One Srikanth Reddy is my cousin brother, who belongs to my village.”
But when coming to the evidence of PW2 he deposed with regard to execution of promissory note as follows:
“I am not related to the Complainant or not even a cousin brother.”
39.So, the evidence of PWs 1 and 2 with regard to their relationship is not corroborated. When PW1 himself admits that there is a relationship between him and the attestor, the attestor himself gave a different version with that of the version of PW1 and he denies the said relationship. When PW1 admits the relationship, it is deemed that he is interested witness and his evidence cannot be relied upon.
PW2 deposed that the Accused approached the Complainant for a hand loan of Rs. 13 lakhs for urgent family necessities and accordingly the
Complainant arranged the said loan of Rs. 13 lakhs and gave the same to the Accused on 10/03/2015 and she received the said amount and executed promissory note in his presence. But in the cross examination he deposed that the amount was paid on 10/03/2015 at the residence of the complainant. But on perusal of the promissory note there is no mention with regard the place of transaction. PW2 further deposed as follows:
“The amount of Rs. 13 lakhs was paid to the Accused in cash but I cannot say the denomination of the amount paid by PW1.”
CRLA Nos. 110 & 111 of 2018 38 of 57
40.When PW2 is aware about the date of transaction, the amount advanced and the fact that the accused needed the amount for her urgent family necessities and he unable to say the denomination of the cash being paid by PW1 to the Accused herein is raising any amount of suspicion in the version of PW2. Atleast PW2 could have stated that it was in denomination of currency notes of Rs. 100/- or Rs. 500/- or Rs.
2,000/- or mixture of the notes. It is observed that the amount of Rs.
13 lakhs is not simple amount and in such circumstances, PW2 deposing that he is not aware about the denominations of the amount paid by Complainant to Accused is appearing to be unrealistic. PW2 in his chief affidavit deposed that the Accused issued cheque in favour of the complainant for an amount of Rs. 13 lakhs towards payment of the hand loan which was borrowed from the complainant in his presence.
He further stated that the presentation of the said cheque by the complainant and the same is reportedly dishonoured and thus the complainant got filed this case. But when coming to the cross examination, PW2 deposed as follows:
“I was not present at the time of issuance of the cheque by the Accused.“
41.In such circumstances, how he is able to know about the issuance of the cheque and dishonor of the cheque and filing of the complaint is not explained by PW2 or PW1. Even in the chief affidavit of PW2, he did not depose that he was informed by PW1 with regard to issuance of the cheque and dishonor of the cheque and filing this complaint. PW2 further deposed that at the time of transaction, except PW1 and the Accused along with him, no other person was
CRLA Nos. 110 & 111 of 2018 39 of 57 present. If the said fact is true, he deposed in the cross examination as follows:
“I do not know whether Yaddula Hussain was present at that time.”
If that fact is true, he could have stated that he was not present but he would not have deposed that he do not know whether the said person i.e., Yaddula Hussain was present at that time. So, this evidence of PW2 as he denied his relationship with PW1 and other factors as discussed above, goes to show that the evidence of PW2 cannot be relied upon with regard to he witnessing PW1 advancing the amount of Rs. 13 lakhs to the Accused herein.
42.Likewise also in C.C. No. 207/2015 in support of the contentions of the Complainant with regard to execution of promissory note, the complaint got examined one S.K. Yaddula Hussain as PW2 who is alleged to be attestor of promissory note and he deposed that he witnessed the money transaction between the Complainant and the
Accused in Thattiannaram Village. But he did not depose the particular place where the transaction took place i.e., at the house of the
Accused or any other place of the village like house of the Sarpanch or any other house in the village. He further deposed that the Accused approached the Complainant for a hand loan for her urgent and family necessities and accordingly the Complainant arranged the said amount of Rs. 12 lakhs and gave to the Accused on 25/05/2013 and she received the said amount and executed promissory note in his presence. When coming to the cross examination of PW2, he deposed as follows:
CRLA Nos. 110 & 111 of 2018 40 of 57 “I do not know the scribe of the promissory note and by the time I saw the promissory note, Rani signature was already there.”
So, the evidence of Pw2 categorically deposed the fact that he did not witness the Accused executing the promissory note or affixing her signature on the promissory note in his presence. He further deposed as follows:
“I do not know whether the name of the Accused is
Nagarani but not Rani.”
If at all the transaction took place in his presence, he could have known the name of the Accused. He deposed as follows:
“Cash of Rs. 12 lakhs was paid by PW1 to the
Accused but I do not know the denominations.”
43.When PW2 is aware about the date of transaction, the amount advanced and the fact that the accused needed the amount for her urgent family necessities and he unable to say the denomination of the cash being paid by PW1 to the Accused herein is raising any amount of suspicion in the version of PW2. Atleast PW2 could have stated that it was in denomination of currency notes of Rs. 100/- or Rs. 500/- or mixture of the notes. It is observed that the amount of Rs. 12 lakhs is not simple amount and in such circumstances, PW2 deposing that he is not aware about the denominations of the amount paid by
Complainant to Accused is appearing to be unrealistic. PW1 in his evidence deposed as follows:
“Except the attestor witness in both the cases under
Ex. P1, no other person was present.”
When coming to the cross examination of PW2, he deposed as follows:
CRLA Nos. 110 & 111 of 2018 41 of 57 “At the time of transaction, one person was present along with the Accused, whom I do not know.”
So, there is no corroboration of evidence between PW1 and PW2 with regard to execution of promissory note as well as receiving of consideration and in whose presence the amount was being paid.
44.In both the cases, PW1 contended that the amount was received by them for their urgent family necessities but nowhere in the evidence of PW1 or PW2, it was deposed with regard to urgent personal and family necessities of Accused. The Accused being housewives in these cases without knowing the fact to their husbands, they approaching the complainant for huge amounts of Rs. 12 lakhs and Rs. 13 lakhs respectively for their personal or family necessities, without the knowledge of any kith and kin of the accused and without informing as to what are those urgent family necessities is appearing to be highly improbable. At least PW1/Complainant ought to have enquired as to what were such necessities i.e., whether it was marriage of their children or payment of school/college fee or for purchase of property etc., for which they were borrowing the amounts from him. Even according to the evidence of PW1, the Accused are wives of his tenants and they have approached him for such a huge amount and simply without their consultation and knowledge and without knowing the necessity of the Accused, advancing such a huge amount to the Accused that too when the Accused in C.C. No.
207/2015 failed to pay interest amount or principal amount for a period of 13 months and again without any hesitation he lending the amount of Rs. 13 lakhs without any interest to the Accused in C.C. No.
204/2015, who is co-sister of the Accused in C.C. No. 207/2015, is
CRLA Nos. 110 & 111 of 2018 42 of 57 appearing to be highly unrealistic, unnatural, improbable and in such circumstances the conduct of the Complainant is contrary to the conduct of a man of ordinary prudence and he failed to explain as to why such amount was allegedly paid to the Accused, which is a relevant question. The complainant lending such a huge amount despite knowing that the Accused even was not in a position to discharge their burden even by installments, as it is admitted by him that they are none other than housewives, as PW1 deposed in his evidence that the accused in both the cases are housewives as discussed above.
45.PW1 in his evidence deposed that the cheque was issued by the
Accused to him at their residence, though initially the witness stated that the Accused brought cheque to him. He further deposed that even at the time of issuance of the cheque by the Accused, no other person was present in both the cases. Even at the time of issuing of the cheques that too at the house of accused, non availability of any person is appearing to be highly improbable as any member of the family would have present in the house and it is highly unbelievable to say that only when the accused were present in the house, the complainant went to their house and obtained the cheque. PW1 further deposed in his evidence that he has enquired with the Accused after dishonor of the cheque since signature differs by visiting their house on four occasions and four days after first dishonor of the cheque, he visited the house of the Accused in both the cases and again for the second time four days after his first visit he went to the accused for enquiry for the second time and thereafter he visited with one day gap. So, according to him he visited the house of the accused
CRLA Nos. 110 & 111 of 2018 43 of 57 after dishonor of the cheque but what conspired between the complainant and the Accused when he first visited the house is not being deposed and at the second time what conspired between them is not being deposed and for the third and fourth time what conspired is not being deposed by PW1 i.e., whether the Accused requested the complainant to present the cheque again or denied to issue another cheque or refuse to pay the amounts etc would had been the dialogue between the Accused and the Complainant but nothing is deposed by
PW1. So, the evidence of PW1 is appearing to be unbelievable with regard visiting house of Accused. It is further observed that on four occasions he did not happen to meet any of his family members and enquired the husbands of the accused or their children about the transaction between the complainant and the Accused is appearing to be strange contrary to the conduct of a prudent man.
46.In C.C. No. 207/2015 the complainant obtained cheque from the
Accused on 25/06/2015 and even according to the complainant, he presented the said cheque on 02/08/2015 i.e., after one month seven days. There is no explanation on the part of the complainant as to why he did not present the said cheque immediately after receipt of the said cheque. On the date of issuing of this cheque by the Accused in C.C. No. 207/2015 i.e., on 25/06/2015 he had no idea or he cannot imagine that the Accused in C.C. No. 204/2015 would issue a cheque for the amount allegedly borrowed by her i.e., on 25/07/2015 and after he obtained both the cheques, he presented the cheque in C.C.
No. 207/2015 on 02/08/2015 and the cheque in C.C. No. 204/2015 on 03/08/2015 i.e., on the next date of presenting the cheque in C.C. No.
207/2015 and thereafter he got issued legal notice to the accused in
CRLA Nos. 110 & 111 of 2018 44 of 57 both the cases i.e., on 04/08/2015, which itself discloses that as he was in possession of the said cheques, he himself filled up said cheques and got presented the said cheques according to his convenience. If not, had it been in general course, the cheque had been issued in C.C. No. 207/2015 on 25/06/2015, he could have presented the cheque for realization immediately. Likewise also with regard to cheque in C.C. No. 204/2015 which was got issued on 25/07/2015 he waited till 03/08/2015 for presenting the said cheques and he could have presented the said cheque on the same day or any other nearby date. So, this act of complainant would only goes to doubt the acts of the complainant and supports the contention of the
Accused that the complainant being in possession of the blank cheques fabricated the same and presented the same in his bank according to his convenience.
47.On the other hand with regard to the contention of the Accused herein, they got examined DW1 and relied upon Exs. D1 to D19. Exs.
D4 to D17 are the exhibits with regard to payment of the amounts and they were alleged to have been issued by the Accused with regard to the chit transaction and they further contended that the Accused was in the habit of issuing the receipt for a lesser amount for instance when they deposit an amount of Rs. 1,69,000/-the accused used to issue receipt for Rs. 1,690/- and even without affixing his signature on it. But on perusal of the said documents at the back of the said receipts, the amounts paid and it is mentioned as amount received by
Sridhar Reddy. On perusal of said receipts, it discloses that it was paid with regard to chit amount. But as the signature of the complainant is not present, we cannot rely upon it.
CRLA Nos. 110 & 111 of 2018 45 of 57
48.The other documents relied upon by the Accused are Exs. D1 and D2. In the cross examination of PW1, it is mentioned as follows:
“It is true that an amount of Rs. 40,000/- was credited to my wife’s account in Andhra Bank No.
114510027032932 and another amount on the same date i.e., dt. 11.01.2012 of Rs. 38,000/- was credited to the account No. 114510025100929 which stands in my account. Ex. D1 and D2 are the receipts, dt. 11.01.2012.“
As on the date of 11/01/2012 there was no transaction or borrowing of the amount by the Accused from the Complainant. The first transaction took place in C.C. No. 207/2015 on 25/05/2013 as alleged by the complainant and on that day he advanced an amount of
Rs. 12 lakhs to the Accused. So, this transaction is much prior to the transaction in C.C. No. 207/2015. There is no explanation on the part of the complainant as to for which purpose those amounts were deposited into his account and the account of his wife. Even permitting the amounts to be deposited into the account of his wife would only goes to support the contention of the Accused that the
Complainant was in the habit of transferring the amounts into various sources to be received by him, so as to avoid any proof being created with regard to his chit fund business. If there was any chit transaction between the husbands of the Accused and the complainant herein, there was no necessity for them to deposit such huge amounts into the account of the complainant as well as the account of his wife. At that moment, PW1 did not mention in his cross examination that the said amounts were towards arrears of rents but he gave suggestion in the cross examination of DW1 that those amounts were towards arrears of rents, which was being denied by DW1 and it is an afterthought of
CRLA Nos. 110 & 111 of 2018 46 of 57
PW1 to cover up latches on his part. But the learned Magistrate has come to a wrong conclusion that the Accused admitted that it was paid towards arrears of rents. If at all the said fact had been true, then and there itself when Exs. D1 and D2 were confronted to the complainant, he could have stated the said fact that it was for arrears of rents.
49.Even for arguments sake, if we believe his contention that he failed to establish the landlord and tenant relationship between the
Complainant and Accused or between the Complainant and the husbands of the Accused, then the complainant has to come up showing as to for what period the accused or their husbands as tenants were liable to pay the rents and whether they cleared the total arrears of rents or they paid only part of the amount etc. but no proof is filed to that extent. Even the Complainant failed to establish the landlord and tenant relationship between the Complainant and Accused or the complainant and husbands of the Accused. So, in the absence of such evidence, it only discloses the fact that these amounts ought to have been paid by the husbands of the accused towards chit fund amount and the complainant receiving the amount into his account and into the account of his wife would only goes to show that the complainant does not want to create or show any type of evidence or proof with regarding his chit transactions and about his habit of transferring funds into various sources. If at all we believe the contention of the complainant that the said deposited amounts are with regard to arrears of rents, that itself discloses that the Accused or their husbands do not have capacity even to pay monthly rents to the complainant and in such circumstances, the complainant advancing
CRLA Nos. 110 & 111 of 2018 47 of 57 such huge amounts to the Accused on 25/05/2013 and 10/03/2015 is appearing to be unnatural and unbelievable.
50.The Accused in support of their contention relied upon Ex. D3. In the cross examination of PW1 he deposed as follows:
“Ex. D3 is the receipt issued by Pw1 in the name of
Katta Maisamma Temple towards donations paid by P.
Yadagiri for Rs. 25,000/-.”
It is not established by the complainant that he is the committee member i.e., President or Secretary or Treasurer of Katta Maisamma
Temple and he is being authorized by temple to receive donations and there is no explanation on the part of the complainant as to why he was in possession of donation book for collection of funds in the name of the temple. No explanation was given by PW1 in his evidence with regard to said fact. Even for the sake of arguments, if we presume that the Complainant has established the landlord and tenant relationship between the complainant and husbands of Accused, it is highly improbable to believe that a person who is unable to pay the rents could able to donate a sum of Rs. 25,000/- in the name of Katta
Maisamma Temple. Further, if we presume the contention of Accused herein, it is to be appreciated that a person who was not having amounts to purchase the house, where he borrowed the loan for purchase of the house and in this regard he is being levied interest and
principal amount towards repayment of the loan amount, it is highly
improbable to imagine that he would donate an amount of Rs.
25,000/- towards temple without any reason. It is not establish that there was any festival in the temple or any type of festival being celebrated in the temple or that there was a construction of temple, so
CRLA Nos. 110 & 111 of 2018 48 of 57 that we can imagine that the said donation was paid. So, in these circumstances, it only goes to support the contention of the Accused that the complainant was in the habit of screening the truth of his transactions with regard to his money lending business and chit fund business etc. The learned counsel for the Accused contended that the complainant is carrying on money lending business without any license for which he relied upon an authority between R. Chennakesava Rao
Vs. P. Laxmi Narsaiah reported in 2017 (2) ALD (Crl.) 471, wherein their Lordships held as follows:
“In view of the said definition, who is lending amount or advances loan to the other on payment of interest would fall within the definition of section 2 (7) of the Act. The person, who does such business must possess license to carry on such business, but here the complainant did not possess any such license and he himself admitted about lending amount orally without obtaining any document, on payment of interest at 24% p.a. Therefore, the complainant is a money lender within the meaning of section 2 (7) of the Act.
When the complainant lent or advanced amount, for payment of interest along with principal amount by the borrower, without possessing any license to carry on such business is totally in contravention to section 2 (7) of the
Act. When an identical question came up before this Court in “M/s. Krishnam Raju Finances, Hyderabad Vs. Abida
Sultana, 2004 (1) ALT (Crl.) 474 (A.P.), this Court held as follows:
‘Since the appellant had no money lending business license, it cannot be said that there was a legally enforceable liability of the Respondent in view of section 9 (2) read with section 2 (4) of the Andhra Pradesh (Telangana Area) Money Lenders Act, 1349 Fasli. Once an
CRLA Nos. 110 & 111 of 2018 49 of 57
Act declares that a particular transaction is illegal, it cannot be made legal for the purpose of any other Act.
The sheet-anchor of section 138 of the Act is as to legally enforceable liability against the Respondent, which is conspicuously absent in the case on hand. Therefore, there was no legally enforceable liability against the respondent.”
51.It is contended by the Complainant that he could establish that the Accused got issued cheque for the amount borrowed by the
Accused from him, the endorsement that the amount of money is insufficient appearing in section 138 of the Act is genus and it is only for reasons such as “Account Closed”, “Payment stopped”, “refer to drawer” are only species of that genus and so also the dishonor on the ground that signature did not match or that the image is not found which too implies that the specimen signatures did not match the signatures on the cheque would constitute dishonor within the meaning of section 138 of the Negotiable Instruments Act and as he could establish the presumption under sections 139 and 118-A of
Negotiable Instruments Act and as the said burden is not rebutted by the Accused, he could establish his contentions that the Accused are liable for offence punishable under section 138 of Negotiable
Instruments Act and relied upon the following citations with regard to the sample principle of law as laid down in the above citations:
K.N. Bena Vs. Muniyappan reported in (2001) 8 Supreme Court Cases 458
Hittin P. Dalal Vs. Brathindranath Banerjee reported in (2001) 6 Supreme Court Cases 16
Rangappa Vs. Mohan reported in 2010 (3) ALT (Crl.) 339 (SC)
CRLA Nos. 110 & 111 of 2018 50 of 57
52.No doubt when the complainant could establish the initial burden that the cheque was issued for legally enforceable debt, the burden shifts to the Accused to rebut such presumption and if they failed to rebut such presumption, the Accused is liable for punishment. In the light of the above discussion, the complainant herein first of all failed to discharge his initial burden to establish the relationship/ acquaintance between him and the Accused nor the relationship of landlord and tenant between the husbands of Accused and himself and his capacity to pay such a huge amount on a particular date i.e., by way of possession of such amount and in proof of such fact producing books of accounts, bank statement, source of income etc and Accused have also denied with regard to issuing of cheques signed by them and through Exs. D1 to D3 the Accused could establish that there is a transaction between husbands of the Accused and the complainant with regard to borrowing of the amount for purchase of the house covered under Ex. P7 and in this regard they joined private chits though they failed to establish the said fact, they could establish the payment of amounts to the complainant even prior to the lending of the amount as alleged by the Complainant to the Accused. Above all if the contention of the complainant is to be believed, as per the principle laid down in the authority between R. Chennakesava Rao Vs.
P. Laxmi Narsaiah reported in 2017 (2) ALD (Crl.) 471, lending the amounts on interest without money lending license is illegal, as such it is not a legally enforceable debt as per section 138 of Negotiable
Instruments Act.
53.The learned counsel for the Accused herein with regard to initial burden of the complainant has relied upon the following authorities:
CRLA Nos. 110 & 111 of 2018 51 of 57
N. Narsamma Vs. Chinna Mukkiranna and another reported in 2017 (2)
ALD (Crl.) 115, wherein it is held as follows:
“It is settled principle of law that once the accused takes the plea that cheque was not issued for discharge of a legally enforceable debt or liability, then the complainant is bound to prove the circumstances under which the cheque was given in her favour and the same is issued in discharge of legally enforceable debt. Unless the initial burden is discharged by the complainant the presumption available under section 139 of N.I. Act cannot be made against the Accused.”
Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm &
Others reported in Civil Appeal No. 5597/2001 (disposed on 16/05/2008), wherein the Hon’ble Supreme Court held as follows:
“Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist......"
From the above decision of this court, it is pellucid that if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the non- existence of the consideration, the plaintiff would
CRLA Nos. 110 & 111 of 2018 52 of 57 invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour.”
Bharat Barrel And Drum Manufacturing Company Vs. Amin Chand
Payrelal (disposed on 18 February, 1999 reported in (1993) 3 SCC 35, wherein the Hon’ble Supreme Court held as follows:
“Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not
CRLA Nos. 110 & 111 of 2018 53 of 57 appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption the defendant has to bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. We find ourselves in the close proximity of the view expressed by the Full Benches of the Rajasthan High Court and Andhra Pradesh High
Court in this regard.”
54.Though the complainant did not discharge initial burden, even if we consider that the presumption is available to the complainant as per the citations relied upon by him, it is a rebuttable presumption and the Accused can rebut the presumption by showing a preponderance of probabilities in his favour by referring to the circumstances under which he relies upon and the court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence and relied upon the following authorities:
Ashok Kumar Goud Vs. Sri Ramulu and another reported in 2018 (1)
ALD (Crl.) 256, wherein their Lordships held as follows:
“In view of the decision of this Court, it is clear that non production of any banks statements and also as there is no mention of this amount in the income tax returns filed by the complainant under Ex. P8, makes the claim of the complainant doubtful and existence of any legally enforceable debt or liability on the part of the accused.”
CRLA Nos. 110 & 111 of 2018 54 of 57
M.Vidyavathi Vs, Chandraiah Alias Chandra Babu reported in (High
Court Of Telangana) Criminal Petition No. 573 Of 2003 (disposed of on 04-12-2009), wherein their Lordships held as follows:
“The accused himself need not come to the witness box to show that he has not borrowed any amount and that he has not received the cheque and demand draft or the amount of Rs. 7,00,000/- on four different dates, he can also rebut the burden by eliciting the same from complainant's evidence by proving the fact by preponderance of probabilities.”
55.So, even if it is considered that the cheque is being issued, it raises presumption in favour of the Complainant but the Accused herein can rebut such presumption by proving the circumstances of the case by letting evidence on his behalf. In this case the Accused herein could establish that the presumption itself is not available to the complainant as they deny the execution of promissory note and they deny issuance of cheque for discharge of such amount under the promissory note and even passing of consideration and the complainant herein failed to establish the execution of promissory note and issuing of cheque for discharge of said promissory note as discussed above. Hence, even if the presumption is available to the complainant, the accused could successfully rebut the presumption and the burden lies upon the complainant as per the principle laid down in the above said citations. In view of the principle laid down in the above said authorities, the Complainant failed to discharge initial burden to claim benefit of presumption under section 118 of
Negotiable Instruments Act. Even if it is presumed that he discharged initial burden, the Accused has rebutted the presumption in the light of the evidence and the circumstances in the said case by leading
CRLA Nos. 110 & 111 of 2018 55 of 57 evidence on their behalf and the complainant herein failed to establish the relationship between the complainant and the accused and the execution of promissory notes for the hand loan borrowed by him and the complainant failed to establish the purpose for which the accused borrowed such a huge amount and his capacity to pay such huge amount on those particular days and with regard to transaction between the complainant and accused in both the cases.
56.With regard to passing of consideration, the evidence of PW2 in both the cases did not support the contention of the complainant.
Moreover, the signatures of the accused on the promissory note and as well as on the cheques does not tally with their signatures on the examinations of Accused under sections 251 Cr. P.C., 313 Cr. P.C. and 255 (2) of Cr. P.C.. So, the Complainant failed to establish even the initial burden of tenant and landlord relationship between the Accused and the Complainant and the capacity of the Complainant to lend such huge amounts to the Accused on those particular days without the knowledge of the family members of the accused i.e., their husbands or kith and kin and the purpose for which the loans were advanced is not explained. Hence, the Accused could establish the presumption by showing a preponderance of probabilities in their favour by referring to the circumstances under which they relied upon and on the other hand the Complainant failed to establish his case by cogent and convincing evidence and whatever the evidence let in by the complainant in both the cases is inconsistent and the documents relied upon by the complainant are appearing to be fabricated. Such serious lacunae in the evidence adduced on behalf of Complainant strikes at the root of a complaint under section 138 of Negotiable Instruments
CRLA Nos. 110 & 111 of 2018 56 of 57
Act, having been noted by the learned Trial Judge. If the Judgment of the Trial Court is clearly unreasonable, it is a compelling reason for interfering with the judgment passed by the Trial Court. When the
Trial Court has ignored the evidence or misrepresented the material evidence or ignored the material documents, the Appellate Court is competent to reverse the decision of the Trial Court depending on the material placed before the Court. The Trial Court has arrived to a wrong conclusion that there is a legally enforceable debt between the complainant and the Accused and thereby convicted the Accused in both the cases by ignoring the fact that the complainant has failed to establish his source of income and the acquaintance between the
Accused and the complainant and finally the signatures alleged to be on the cheques also does not belong to the Accused. The appellants in both the cases have established their respective cases by proving the grounds of appeal and on the other hand the Complainant failed to establish that the Accused are liable to pay legally enforceable debt to him and more particularly the evidence adduced on behalf of the
Complainant is inconsistent and it is highly improbable to believe his version. In view of the principle laid down in the above said citations relied upon by the Appellants and also in view of the above facts and circumstances, the appellants are entitled for setting aside the judgment passed by the Trial Court. Accordingly the point for determination is answered in favour of the Appellants and against the
Respondent.
57.In the result:
Criminal Appeal No. 110/2018 is allowed by setting aside the
Judgment of Conviction and Sentence, Dt. 08/01/2018 passed by the
CRLA Nos. 110 & 111 of 2018 57 of 57
X Special Magistrate Court, R.R. District at Hasthinapuram in C.C. No.
207/2015 and thereby the Appellant/Accused herein is acquitted for the offence alleged against her under section 138 of Negotiable
Instruments Act by invoking section 255 (1) of Cr. P.C. The fine and compensation amount paid by the Appellant/Accused, if any, is ordered to be returned to the Appellant/Accused after expiry of appeal time.
Criminal Appeal No. 111/2018 is allowed by setting aside the
Judgment of Conviction and Sentence, Dt. 08/01/2018 passed by the
X Special Magistrate Court, R.R. District at Hasthinapuram in C.C. No.
204/2015 and thereby the Appellant/Accused herein is acquitted for the offence alleged against her under section 138 of Negotiable
Instruments Act by invoking section 255 (1) of Cr. P.C. The fine and compensation amount paid by the Appellant/Accused, if any, is ordered to be returned to the Appellant/Accused after expiry of appeal time.
Dictated to the Stenographer, transcribed and typed by him, pronounced and
corrected by me in Open court, on this the 10 th day of July, 2020.
XIII ADDL. DISTRICT & SESSIONS JUDGE,
RANGA REDDY DISTRICT.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
-NIL-
EXHIBITS MARKED
-NIL-
CRLA Nos. 110 & 111 of 2018 58 of 57
XIII ADDL.DISTRICT & SESSIONS JUDGE,
RANGAREDDY DISTRICT.