SAROJA Vs. ANASUYA DEVI

JUDGEMENT

(1.) Heard the learned counsel for the petitioner and the learned counsel for the respondent. The brief facts are as follows:

(2.) The learned counsel for the petitioner would submit that, it cannot be said that the cheques said to have been issued by the petitioner are dishonoured, ought to make out a cause of action for an offence punishable under Section 138 of the NI Act. It was the specific defence of the petitioner that, while she was going on the road, she had lost her purse containing two cheque books, all the cheque leaves were duly signed by the petitioner and she had immediately informed her banker of such loss and had also lodged a police complaint on 12.05.2004. The complaint was duly acknowledged by the police and that has been marked in evidence. Similarly, the intimation to her banker has also been acknowledged, which is the reason why the cheques presented by the complainant have been returned with an endorsement that they were lost cheques. In that view of the matter, it cannot be said that the cheque leaves have been duly issued by the petitioner and that they have been dishonoured for want of sufficient funds. Further, insofar as the complainant's capacity to lend money even if it could be said that there was a loan transaction, has been demonstrated as being not possible, since the complainant did not have the means to lend such substantial amount of money. Further, the petitioner also did not have the need for any such money as she was well-provided for and her family members were financially comfortable and did not require the assistance of any such loan. Notwithstanding the same, the courts below having held that the defence of the petitioner as to the loss of the cheques could not be accepted, is only on account of a mistake committed in the complaint lodged as regards the loss of cheques in the first instance by the petitioner, which is sought to be held against her. The learned counsel would submit that if the mistake is accepted, then the further material on record to indicate that the so-called lost cheques had been issued to third parties and were signed and encashed, would be sufficiently explained and therefore, would submit that the said infirmity could not have been held to displace the defence that was sought to be urged by the petitioner. Hence, he would submit that there is miscarriage of justice, warranting interference of this Court in this petition.

(3.) While the learned counsel for the respondent would point out that the entire case of the petitioner was that she had lost two cheque books containing particular numbers and that the same was sought to be misused by the petitioner. If indeed the same had been lost, it is inexplicable that the very cheques in the very series that were supposed to have been issued by the petitioner, as well have been encashed by third parties and the same have been allowed to be encashed without demur, by the petitioner. If indeed they were lost and sought to be misused by third parties, the petitioner would certainly have raised a protest and would have complained against such loss of cheques. If therefore, the case of the petitioner was to be believed, the petitioner was required to explain the circumstances under which the very cheques which were said to be lost, have been duly encashed by third parties and apparently have been issued by the petitioner, and it is a blunder on the part of the petitioner to have falsely claimed that the said cheques were lost. It is this circumstance which has led the court below to disbelieve the defence of the petitioner and it is also pointed out that the court below has taken note of the circumstance that notice under certificate of posting having been served, there is no reply from the petitioner denying the liability that was claimed under the said cheques and therefore, the learned counsel seeking to contend that since the notice sent by way of registered post has been returned as not claimed, there is no due service of notice, is not a contention that can be readily accepted since the notice was also sent under certificate of posting and that is deemed to have been served. In the above facts and circumstances, the petitioner had specifically contended that cheque books bearing Nos. 208521 to 208530 and 211681 to 211690, had been lost by the petitioner when she was in Prakashnagar; that she had lost her purse containing the said cheque books. Inexplicably, however, the very cheque namely 211684 had been issued in favour of one Manjunatha on 6.1.2004 and a telephone bill has been paid by a cheque bearing No. 211681. Further, another cheque bearing No. 211683 has been issued in favour of one Kustha Begum and a cheque bearing No. 211689 in favour of Subramanya; cheque bearing No. 208526 had been issued in favour of Anasuyadevi; another cheque bearing No. 208527 had been issued in favour of Manjula. Therefore, the very defence sought to be set up by the petitioner was a false and concocted case as a large number of cheques issued to third parties have been duly encashed and if indeed the said cheques had been lost and had been duly informed to the banker as claimed by the petitioner, the same would have been returned with similar endorsement as in the case of the complainant. Therefore, the petitioner had falsely claimed that the cheques had been lost even though the same had been issued much earlier to the complainant and complaint of loss of cheque books had been made subsequently, but those cheques had been duly encashed by third parties. It is this glaring circumstance which has prompted the courts below to negate the defence set up by the petitioner and hence, the contention on behalf of the petitioner that the respondent-complainant did not have the means to lend money, etc., are not contentions which can be countenanced in the light of the fact that cheques in question have been issued on the account of the petitioner and the said cheques also bear the signature of the petitioner which is not denied, is a circumstance that would militate against the petitioner. It is inexplicable that the two entire cheque books which are sought to be lost are duly signed on every single cheque leaf, by the petitioner. This is a case which cannot be accepted. Accordingly, there is no merit in this petition and the same stands dismissed.