Bangalore District Court
K.Nagaraja vs Stella on 14 February, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 14th day of February - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.27327/2014
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : K.Nagaraja,
S/o.Kariyappa,
Aged about 43 years,
No.112, 1st B Main,
RPC Layout, Pipe Line,
Vijayanagar,
Bengaluru-40.
(Rep. by Sri.M.Nagaraja, Adv.)
V/S
Accused : Stella,
W/o.Late.B.S.Sulomon,
Aged about 58 years,
No.43, Old No.225, (1st Floor),
Madhuranagara, 3rd Main Road,
Nagarabhavi Main Road,
Moodalapalya,
Opp. Ganapathi Grills Works,
Land Mark-Opp. Seetharama
Kalhana Mantapa,
Madhuranagar,
Bengaluru-72.
(Rep.by Sri.Sridhara.T, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.No.27327/2014
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 14.02.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 26.08.2014 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.4,50,000/-.
2. In precise, the facts of the complainant case is:
The accused and her husband by name B.S.Sulomon and their son S.Roopkumar were known to the complainant from many years. Taking advantage of the said acquaintance, the complainant was agreed to purchase the site bearing No.11, carved in Sy.No.44, situated at Nagarbhavi Village, presently said property belongs to the accused easement ownership property having RCC roofed house and measured East to West 22.06 feet and North to South 36.0 feet for the total valuable sale consideration of Rs.20 lakhs. Out of which, sum of Rs.4,50,000/- paid in cash as advance in the presence of witnesses and it was Judgment 3 C.C.No.27327/2014 endorsed on 29.04.2009 by the accused individually. The accused individually collected the said advance sale agreement deposit with her husband.
The complainant has further averred that, remaining sale consideration of Rs.15,50,000/- will be payable by the complainant within 44 months from the date of agreement for registration. The accused has to furnish the original document of the said property, at the time of registration of the sale deed.
The complainant has further contended that, in the mean while, the complainant was requested the accused and demanded on several occasions to furnish the original property documents for the purpose of registration. All the time, the accused intimated the complainant and expressed her inability to furnish the original documents and took time to provide the documents. By doing so, the accused prolonged time. Whenever the complainant asked for provide the original document, accused and her husband evade for one or other reasons and postponed the same.
The complainant has further alleged that, even after the several requests and demands made by the complainant orally, for perform specific performance of contract based, on the said agreement, but the complainant in the meanwhile got shock and Judgment 4 C.C.No.27327/2014 dismay, the husband of the complainant, came to be died on 25.06.2010 intestate living behind only the legal heirs, those are accused and her son. Further, complainant without any alternative got wait for some time. Whenever and in the month of December, 2013, the complainant asking for provide original documents, the accused told him that, she is making hectic efforts to trace out the mother deeds of the said agreement. The complainant got shock and surprise, after verifying the title deeds, then came to know that, the accused is not the absolute owner and only she is possession and enjoyment of the said property, as sale agreement holder, she had no right. Suddenly, on the intervention of the mediators/friends discussed to remind her to settle the advance sale consideration paid by the complainant as soon.
The complainant has further contended that, upon the oral reconciliation held between both in the month of February, 2014, accused decided to refund the entire outstanding advance received by her at the time of entering into the sale agreement and got issued post dated cheque dated:08.05.2014 bearing No.406576 for sum of Rs.4,50,000/- drawn on Vijaya Bank, Moodalapalya, Bengaluru, for discharge of legally enforceable advance sale consideration to the complainant and assured to Judgment 5 C.C.No.27327/2014 maintain sufficient funds in her account, at the time of its presentation.
The complainant has further contended that, when he presented the said cheque for encashment through his banker viz., The Karnataka Apex Co-operative Bank Ltd., Vijayanagar Branch, Bengaluru on 19.05.2014. The said cheque came to be dishonoured as per bank memo dated:20.05.2014 stating "Funds Insufficient". Thereafter, the complainant personally contacted the accused in her residence and intimated about the same, then, she requested to re-present it during 1st week of July, 2014. Accordingly, at the request of the accused, again the complainant presented the cheque with his banker, even then, as per memo dated:08.07.2014, the same came to be dishonoured for the reasons "Funds Insufficient". Thereafter, calling upon the accused to pay the amount covered under the cheque within 15 days, he got issued legal notice by way of R.P.A.D as well as courier. The notice issued so was served on the accused. Despite that, the accused neither replied nor paid the amount covered under the cheque. Thereby, she committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
Judgment 6 C.C.No.27327/2014
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Wherein, the complainant narrates facts unknown to the complaint averments and allegations. Any how, my predecessor in office, since found grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through her counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to her, wherein, she denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P26(a). The PW.1 was subjected for cross-examination by the advocate for the accused. In the cross-examination of PW.1, accused counsel got confronted three documents and same are marked as Exs.D1 to D3.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by her was recorded. In support of the defence, the accused herself was Judgment 7 C.C.No.27327/2014 examined as DW.1 and also subjected for cross-examination by the advocate for the complainant.
7. Both side counsels have submitted their detailed written arguments, apart from adduced oral arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount covered under the Ex.P4-cheque is the existence of legally enforceable debt payable by the accused?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
Judgment 8 C.C.No.27327/2014 The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P26, they are:
a) Ex.P1 is the agreement of sale dated:29.04.2009 executed by accused and her husband in favour of complainant.
b) Ex.P2 is the copy of death certificate pertaining to Solomon.G.S issued by Shekhar Hospital, Bull Temple Road, Bengaluru.
c) Ex.P3 is he certified copy of registered sale agreement dated:22.07.1983 executed by one P.Krishnan in favour o B.S.Solomon.
d) Ex.P4 is the cheque bearing No.406576 issued by the accused for sum of Rs.4,50,000/-
dated:08.05.2014, drawn on Vijaya Bank, Moodalapalya, Bengaluru.
e) Ex.P4(a) is the alleged signature of accused.
f) Exs.P5 and P6 are the Bank Memos dated:08.01.2014 and 20.05.2014.
g) Ex.P7 is the bank challan counter foil.
h) Ex.P8 is the Legal Notice dated:25.07.2014.
i) Ex.P9 is the Postal receipt.
j) Ex.P10 is the Postal Acknowledgment Card.
k) Ex.P10(a) is the signature of accused.
l) Ex.P11 is the professional courier receipt.
m) Ex.P12 is the certified copy of sworn statement affidavit of complainant herein.
n) Ex.P13 is the certified copy of private complaint.
o) Ex.P14 is the certified copy of list of document.
Judgment 9 C.C.No.27327/2014
p) Ex.P15 is the certified copy of order sheet in C.C.No.28384/2014.
q) Ex.P16 is the certified copy of sale deed.
r) Exs.P17 to P20 are the encumbrance certificates.
s) Ex.P21 is the certified copy of complaint dtd:17.08.2013 lodged by complainant herein before the Vijayanagar Police Station.
t) Ex.P22 is the acknowledgment dated:29.04.2009 executed by Roopkumar.S. u) Ex.P23 is the certified copy of legal notice dated:28.07.2014.
v) Ex.P24 is the samujayashi pathra dated:23.02.2011 executed by Roopkumar.S in favour of complainant herein.
w) Ex.P24(a) is the signature of Roopkumar.S.
x) Exs.P25 and P26 are the On demand promissory note and consideration receipt dated:23.02.2011 executed by Roopkumar.S in favour of complainant herein.
y) Exs.P25(a) and P26(a) are the signatures of Roopkumar.S.
11. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citation and relied upon same, it is;
a) AIR 2019 SC 1876
b) AIR 2019 SC 2446
c) AIR 2019 SC 1625
Judgment 10 C.C.No.27327/2014
12. In order to prove the defence of the accused, she herself choosen examined as DW.1. In the cross-examination of PW.1, accused counsel got confronted three documents and same are marked as Exs.D1 to D3. They are:
a) Ex.D1 is the certified copy of private complaint in PCR No.13182/2014.
b) Ex.D2 is the legal notice dated:25.07.2014 issued by complainant herein through his counsel to the accused and
c) Ex.D3 is the sworn statement affidavit pertaining to the complainant herein in PCR No.13182/2014 i.e., in the present case.
The DW.1 was subjected to the cross-examination by the advocate for the complainant.
13. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
14. After cross-examination of PW.1, the incriminating evidence made against the accused was read over and explained to her as required under Section 313 of Cr.P.C., wherein, she specifically admitted the legal notice issued by the complainant, got received by her and she does not say anything about cause reply. However, to prove her probable defence, she choosen to entered Judgment 11 C.C.No.27327/2014 into witness box and filed affidavit evidence on oath and she examined as DW.1. In brief, the accused has contended that,
15. At no point of time she taken any money from the complainant and never borrowed any money from the complainant. The accused also contended that, she never entered into any kind of agreement with the complainant and property was not standing in her husband name. She also contended that, she not received any money from the complainant. Her husband was died in the year 2010 and complainant filed the false case against her with created stories.
16. The accused has further alleged that, she had a son by name Roopsh Kumar and he also died in the year 2012. After his death, she came to know about her deceased son and complainant were friends. The accused never met the complainant and had no transaction with him.
17. The accused has further contended that, her deceased son Roopesh Kumar had taken her blank cheque and other papers assuring to arrange loan on the said property. Hence, cheque was given by her, to her son for the arrangement of loan, but unfortunately he died.
Judgment 12 C.C.No.27327/2014
18. The accused has further alleged that, after the death of her son, only she came to know the knowledge that, the said cheque has been misused by the complainant with her deceased son. The accused had no personal knowledge that, how the cheque is possessed by the complainant and she not given the same to the complainant, as she had no transaction with him under any circumstances. The complainant deposed falsely before this court for making wrongful gain by create documents and played fraud. Hence, complaint is liable to be dismiss with cost. The accused subjected for cross-examination by the advocate for the complainant in marathon manner.
19. On going through the rival contentions of the parties, the fact that, complainant has brought the present cheque bounce case based on the Ex.P4 cheque pertaining to the accused by alleging that, for the repayment of the advance amount, received by the accused by virtue of sale agreement dated:29.04.2009, accused gave questioned cheque, despite he present it for encashment at her request, on twice the same came to be dishonoured stating 'funds insufficient'. Despite, gave legal notice as per Ex.P8 and on its service to the accused, she either replied or paid the amount covered under the cheque. Hence, the complaint.
Judgment 13 C.C.No.27327/2014
20. Whereas, it is the specific defence of the accused, she does not know the complainant and had no any kind of transaction of money or sale with the complainant and she gave the questioned cheque to her son Roopesh Kumar.S during his lifetime for the purpose of obtain loan and she does not know, how the said cheque came to be in possession of the complainant being a friend of her son. Very particularly, the accused alleged on the complainant that, he got misused the questioned cheque, though it was not issued by the accused for discharge of any legally enforceable debt.
21. Therefore, it made clear that, by virtue of Sections 118 and 139 of Negotiable Instruments Act, the initial statutory presumption shall be drawn in favour of the complainant that, for discharge of existence of legally recoverable debt, the accused got issued questioned cheque unless and until contrary prove.
22. In this case, the accused has not admitted the claim of complainant and she denied the whole claim including entered into sale agreement dated:29.04.2009 as well as receipt of alleged amount of Rs.4,50,000/- out of total consideration of Rs.20 lakhs and got issuance of questioned cheque for repayment of advance money has been denied. The accused not only Judgment 14 C.C.No.27327/2014 denied, but choosen to cross-examining the PW.1 in detail through her counsel. That apart, herself choosen to entered into the witness box and subjected for detail cross-examination by the advocate for complainant.
23. During the course of cross of DW.1, she specifically stated that, she aged about 60 years and her husband was Ex-employee of Binny Mill and he got retired from service and she is the house wife, Roopesh Kumar.S was her son. The accused has denied that, her husband got purchased the property covered under the Ex.P3 on 22.07.1983 by virtue of sale agreement purchased the said property for Rs.14,500/-, but the DW.1 has denied the same. By making such suggestion, the complainant also clearly admitted that, if at all, the said document reveal the name of husband of accused, admittedly, it was only registered sale agreement, no sale deed is been registered in the name of husband of the accused. Under such circumstances, admittedly, the said husband came to be died on 26.06.2010, how the complainant and her son Roopesh Kumar.S were inherited the said property and how they become absolute owners, no document is been produced by the complainant. But the DW.1 has clearly denied, her husband has purchased the said property under sale agreement dated:22.07.1983. Even, there was suggestion made Judgment 15 C.C.No.27327/2014 to the DW.1 that, the portion of property retained by the accused and the portion of property, accused, her husband and son altogether sold 1.1 gunta of property No.11 by way of sale agreement in favour of complainant. But the said suggestion is denied by the accused, as to the execution of sale agreement.
24. It is relevant to re-produce the said portion of evidence of DW.1 that:
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25. On going through the said testimony of DW.1, when tendered the Ex.P1 sale agreement, wherein, found the LTM of Stella in the witness box, she deposed, does not know. Even, she on seeing the signature of her son Roopkumar.S said, she does not know. Even, she said, witness byname Hanumanthu also does not know. The DW.1 has deposed that, Hanumanthu is not signed the agreement, but witness the same. The DW.1 has stated that, she does not know that, Kumar signed to the said agreement, not known to her. Even, she said that, does not know that, the said Kumar is the resident of No.28, 10th Main Road, 7th Cross, Pandurayapura. Even, she deposed, she does not know that, the complainant had signed at page No.2 and 3 of Ex.P1. It is significant fact to note that, the end suggestion made to the PW.1 that, accused, her husband and son together, sold 1.1 gunta of land in property No.11 gave out in Sy.No.44 by way of sale agreement to the complainant as per Ex.P1 and deposed falsely. The said suggestion disclosed, the accused has said, she does not know about the signatures and LTM found in the said document, but by way of making last suggestion, complainant has Judgment 17 C.C.No.27327/2014 stated, the accused, her husband and her son got executed the sale agreement at Ex.P1 in favour of complainant. Therefore, it is just and proper to focus of Ex.P1, as to the vendor of the said document and its genuineness.
26. In this case, complainant has produced the said agreement at Ex.P1. On meticulous perusal of the Ex.P1, the alleged sale advance agreement dated:29.04.2009, though accused has disputed its execution and issuance, but it discloses, the alleged signature of the accused her husband G.S.Solomon and her son name Roopkumar.S as witness and another witness by name Hanumanthu. The said document in the page No.3 also discloses, the another witness by name Kumar.
27. On going through the said recitals, it discloses, the vendors name as B.S.Solomon and the name of accused. Wherein, it has recited that, the property bearing No.11 were purchased from one P.Krishnan and mentioned that, 'me'. On careful perusal of the recitals made mentioned in the para No.3 and 4 of the Ex.P1, inspite of mentioned the vendors as we, it only mentioned 'me' and property came to 'me' and it was 'my absolute ownership property'. If at all, it was owned by any one either husband or wife
- accused herein, definitely, could have state among them, who is Judgment 18 C.C.No.27327/2014 the absolute owner of the said property, but no such clarificatory recitals is made. However, the said recitals discloses, it was the absolute property and ownership of either G.S.Soloman or Stella i.e., accused herein. On going through the entire cross- examination of DW.1, the suggestion made to the DW.1 is to be seen, as to right, title and interest of the vendors that:
"£À£Àß UÀAqÀ PÀȵÀÚ¥ÀàgÀªÀjAzÀ Rjâ ªÀiÁrzÀ D¹Û ªÀÄÆqÀ® ¥Á¼ÀåzÀ ¸ÀªÉð £ÀA§gï D¹ÛAiÀiÁVvÀÄÛ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. ¸ÀzÀj PÀȵÀÚ¥Àà ¥ÀǪÀð AiÉÆÃd£É E®èzÉ 1.1 D¹ÛAiÀÄ£Àß £À£Àß UÀAqÀ¤UÉ ¤¦.3 gÀ ¥ÀæPÁgÀ ªÀiÁgÁl ªÀiÁrzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. PÀȵÀÚ¥Àà PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁV £À£Àß UÀAqÀ¤UÉ ¤¦.3gÀ PÀgÁgÀ£ÀÄß §gÉzÀÄPÉÆnÖzÀÄÝ, D PÀgÁj£À DzsÁgÀzÀ ªÉÄÃ¯É £À£Àß UÀAqÀ PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁV ¤¦.1 ¥ÀæPÁgÀ PÀæAiÀÄzÀ PÀgÁgÀ£ÀÄß ªÀiÁrPÉÆnÖzÁÝgÉAzÀgÉ ¸ÀjAiÀÄ®è. ¤¦.3 ¥ÀæPÁgÀ £À£Àß UÀAqÀ Rjâ¹zÀ D¹Û PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁVzÀÄÝ, D D¹ÛAiÀÄ JqÀ¨sÁUÀzÀ°ègÀĪÀ £ÀªÀÄä D¹Û ºÁUÀÆ §® ¨sÁUÀzÀ°ègÀĪÀ ¸ÀA§A¢üUÀ¼À ºÉ¸ÀjUÉ SÁvÁ ªÀUÁðªÀuÉAiÀiÁV®è JAzÀgÉ ¸ÀjAiÀÄ®è."
28. There is no specific recitals in the Ex.P1, agreement as to ownership accrued either to the accused or her husband, but the said suggestion made clear that, the husband of the accused got purchased the property from Krishnappa can be seen. The said suggestion denied by the accused. The said suggestion also Judgment 19 C.C.No.27327/2014 discloses, the said vendor Krishnappa without pre-plan got soled 1.1 gunta of property to the husband of accused as per Ex.P3 registered sale agreement dated:22.07.1983. Even, the complainant advocate gone to extent that, the said Krishnappa Illegally sold property to the husband of the accused as per Ex.P3, and in turn, the husband of the accused got executed the Ex.P1 sale agreement in favour of complainant, but the DW.1 has denied the said suggestion. The said suggestion also continues by stating, the husband of the accused illegally purchased property and left side property of the accused and right side property of the relatives of the accused not got mutated, the said suggestion is denied by the accused.
29. On going through the said suggestion made it clear that, earlier one Krishnappa sold the property to the husband of accused as per Ex.P3. The complainant himself suggested that, the said sale transaction either from Krishnappa to Soloman or from Solomon to the complainant herein are illegal. Therefore, it made clear that, the husband of the accused as per Ex.P3 only got purchased by way of agreement and no marketable right, title and interest was been transferred during the lifetime of Solomon from Krishnappa or after the death of husband of accused on 25.06.2010, no mutation is carried out either in the name of Judgment 20 C.C.No.27327/2014 accused or her deceased son Roopkumar.S. The complainant has suggested that, those transactions were illegal. Therefore, the complainant has clearly admitted that, whatever the transaction made in respect of site No.11 inter say between Krishnappa and Solomon as well as Solomon and complainant or illegal. Therefore, the role of accused and her son in entered into the sale agreement at Ex.P1 is also created doubt, as on the alleged sale agreement dated:29.04.2009 at Ex.P1, Solomon was alive and he came to be died on 25.06.2010. Therefore, unless the accused name is inserted or the joint name, the property mutated, how the accused and her husband got executed sale deed is also created doubt. Moreover, by way of making such suggestion, the complainant has admitted that, it was illegal transaction, therefore it was him to be deligent in entered into said transaction, but not removed the doubt.
30. No doubt, in order to prove the due execution of the Ex.P1, in view of accused strongly denied its execution as well as receipt of Rs.4,50,000/- from the complainant, it is require to examine any one of the attested witnesses of the said agreement. On careful going to the said document, in the 1st page the witnesses name cited as Roopkumar.S and Hanumanthu and in the page No.3 one more witness name Kumar is been inserted. If at all, the said sale Judgment 21 C.C.No.27327/2014 transaction was held as urged by the complainant in the presence of witnesses, definitely, in view of death of Roopkumar.S, Hanumanth and Kumar are the better witnesses to prove the due execution of sale agreement, in that regard, no effort is made by the complainant to brought them before this court, to prove his due execution.
31. The DW.1 during her cross-examination repeatedly reasserted that, she, her husband and her son not executed the Ex.P1 sale agreement in favour of complainant. The DW.1 has reasserted that, she not gave questioned cheque for repayment of advance sale consideration of Rs.4,50,000/- to the complainant, but she gave singed blank cheque to her for the purpose of obtaining loan and he misused the same and complainant being his friend, filed the false case by misusing the same.
32. No doubt, on close perusal of the rival contentions of the parties, it made clear that, based on the Ex.P1, the complainant not sought for specific performance. But brought the case based on the questioned cheque at Ex.P4 for refund of advance money paid by him as per Ex.P1. The accused has clearly denied the receipt of Rs.4,50,000/- from the complainant and got execution of agreement at Ex.P1 on 29.04.2009 and issuance of Ex.P4 cheque Judgment 22 C.C.No.27327/2014 in favour of complainant. Therefore, in view of accused challenged the very vital document are solely relied by the complainant by stating passing of consideration of Rs.4,50,000/-, as part of sale consideration out of Rs.20 lakhs in the presence of witnesses, it was the complainant has to prove the passing of consideration of Rs.4,50,000/- from him to the accused. It is him to demonstrate that, whether the said Rs.4,50,000/- apart advance was paid by the complainant either to G.S.Solomon or to the accused nor to Roopkumar.S, but the Ex.P1 document is not clear, as to handed over the said money. The recitals disclose, the receipt of money by one person, but he failed to demonstrate among 3, who received from the family members of the accused. In that regard, no clarificatory answer is furnished by the complainant. Even, as said by the complainant, the said transaction was happened in the presence of witnesses, therefore, examination of any one of the witness, as to at least passing of consideration of Rs.4,50,000/-, the complainant require to examine, but not examined and to avoid the same, no satisfactory explanation is forth coming from his side.
33. It is significant fact to note that, the accused only not denied the execution of sale agreement and denial of got issuance of questioned cheque at Ex.P4 cheque. But her counsel subjected Judgment 23 C.C.No.27327/2014 the PW.1 for cross-examination. Wherein also some of the discrepancy in the evidence of PW.1, as to the alleged date of entered into sale agreement. During the course of cross of PW.1, on the 1st day the PW.1 has deposed that:
"¸ÀzÀj PÀgÁgÀÄ ¥ÀvÀæªÀ£ÀÄß 2009gÀ°è ªÀiÁrPÉÆArgÀÄvÉÛãÉ. PÀgÁgÀÄ ¥ÀvÀæ DzÀ ¢£ÁAPÀ ªÀÄvÀÄÛ wAUÀ¼ÀÄ ºÉüÀ®Ä §gÀĪÀÅ¢®è. ¸ÁQëUÉ ¹¹ £ÀA.27327/2014 gÀ°è ¦gÁå¢AiÀÄ zÀÆj£À zÀÈrüÃPÀÈvÀ £ÀPÀ®£ÀÄß vÉÆÃj¹ EzÉà zÀÆgÀ£ÀÄß ¤ÃªÀÅ zÁR°¹gÀÄwÛÃj JAzÀÄ ¸ÀÆa¹zÀgÉ ¸ÁQë M¦àPÉÆArgÀÄvÁÛgÉ. ¸ÀzÀj zÁR¯ÉAiÀÄ£ÀÄß ¤r-1 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. £ÁUÀgÀ¨sÁ«AiÀÄ°ègÀĪÀ D¹ÛAiÀÄ §UÉÎ ¢.29.04.2011gÀAzÀÄ £Á£ÀÄ PÀgÁgÀÄ ¥ÀvÀæ ªÀiÁrPÉÆAqÉ JAzÀÄ zÀÆj£À°è w½¹zÉÝ JAzÀgÉ ¸Àj. ¸ÀzÀj PÀgÁgÀÄ ¥ÀvÀæªÀ£ÄÀ ß DgÉÆæAiÀÄ UÀAqÀ£À eÉÆvÉUÉ ªÀiÁrPÉÆArzÉÝ JAzÀgÉ ¸Àj. £Á£ÀÄ ¤¦-2 ªÀÄgÀt ¥ÀæªÀiÁt ¥ÀvÀæªÀ£ÀÄß ºÁdgÀÄ ªÀiÁrzÉÝãÉAzÀgÉ ¸Àj. ¸ÀzÀj ¤¦-2 gÀAvÉ DgÉÆæAiÀÄ UÀAqÀ 2010gÀ°è wÃjPÉÆArgÀÄvÁÛgÉAzÀgÉ ¸Àj. ¤¦-2 ¨ÁAqï ¥ÉÃ¥Àgï£ÀÄß 2009gÀ°è Rjâ¹gÀÄvÀÛzÉ JAzÀgÉ ¸Àj. ¨ÁAqï ¥ÉÃ¥Àgï£ÀÄß DgÉÆæAiÀÄ ªÀÄUÀ gÀÆ¥ÉñïPÀĪÀiÁgï vÀA¢gÀÄvÁÛgÉ. ¨ÁAqï ¥ÉÃ¥Àgï£ÀÄß Rjâ¹zÀ ¢£ÀªÉà PÀgÁgÀÄ ¥ÀvÀæªÀ£ÀÄß vÀAiÀiÁgÀÄ ªÀiÁrgÀÄvÀÛzÉ ¸Àj. ¸ÁQëUÉ MAzÀÄ zÁR¯ÉAiÀÄ£ÀÄß vÉÆÃj¹ ¸ÀzÀj zÁR¯ÉAiÀÄAvÉ £Á£ÀÄ £ÀªÀÄä ªÀQîgÀ ªÀÄÆ®PÀ Judgment 24 C.C.No.27327/2014 DgÉÆæUÉ £ÉÆÃn¸ï PÀ¼ÀÄ»¹zÉÝ JAzÀgÉ ¸Àj. ¸ÀzÀj zÁR¯ÉAiÀÄ£ÀÄß ¤r-2 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¤r-2 gÀ°è PÀÆqÀ 2011gÀ°è D¹Û Rjâ¸ÀÄvÉÛãÉAzÀÄ Rjâ PÀgÁgÀÄ ¥ÀvÀæ DVvÀÄÛ JAzÀÄ w½¹zÉÝãÉAzÀgÉ ¸Àj. £Á£ÀÄ ¸À°è¹zÀ zÀÆj£À°è PÀgÁgÀÄ ¢.29.04.2009 JAzÀÄ §gÉ¢zÉ JAzÀgÉ ¸Àj. zÀÆgÀÄ ªÀÄvÀÄÛ £ÉÆÃn¸ï£À°è ¢£ÁAPÀ vÀ¥ÁàVzÉ JAzÀÄ £Á£ÀÄ AiÀiÁªÀÅzÉà wzÀÄÝ¥Àr CfðAiÀÄ£ÀÄß ¸À°è¹®è JAzÀgÉ ¸Àj."
34. The PW.1 during his cross-examination has deposed that, the sale agreement was entered into in the year 2009 and he deposed that, he is not able to say, what was the date and month. When tendered the certified copy of complaint filed by him in the present case, he clearly admitted that, it was filed by him, hence, it was marked at Ex.D1. The PW.1 has deposed that, as mentioned in his complaint at Ex.D1, which is none other than the complaint in the present case, he clearly admitted that, he stated the date of agreement was 29.04.2011, entered with the husband of the accused. The said date clearly found in Ex.D1 complaint, which is none other than the certified copy of complaint filed by very complainant herein. It is significant fact to note herein itself that, after the accused obtained the Ex.D1 complaint, some corrections are made in the date:29.04.2011, which has been changed in to 29.04.2009. On going through the present Judgment 25 C.C.No.27327/2014 complaint, it is clearly mentioned about the corrections made the date as 29.04.2009 to the earlier date:29.04.2011. Even, the advocate for the complainant for mentioning the corrections put his counter signature. But while cross-examining the DW.1, denied that, the complainant and his counsel not made such correction.
35. No doubt, based on the complaint it requires to leads sworn statement by the complainant. On going through the sworn statement led by the complainant at the earliest point of time, inspite of it consists of reiterate the complaint averments and allegations, it discloses, altogether different facts and circumstances narrated in the complaint. From that point itself, sworn statement of the complainant is also not in accordance with law. Hence, there is no significance can attach to the same, as it reverse altogether different facts and circumstances. However, this case is contested and rival parties have placed their contentions, it also requires to be appreciating.
36. If at all, it was correction made in the original complaint after the accused obtained the Ex.D1 certified copy of changed the date from 29.04.2011 in to 29.04.2009, no order is obtained by the complainant, but contrary to the existing liability and procedure, without obtaining permission, without the knowledge of Judgment 26 C.C.No.27327/2014 the court did such correction, the very act of the complainant and his counsel altered the date from 29.04.211 to 29.04.2009 is condemned. It discloses, the very object and intention of the complainant, in order to put forth his claim of wrong foot, taken the risk to change the year of the agreement, the same is deprecated herein. Since, accused also not questioned the very act of correction, this court except passing remark on the said correction made by the complainant after obtaining certified copy of Ex.D1 the complainant herein, no action is initiated, as it was done at the risk and cost of the complainant, wherein, others role is not there.
37. In the further part of cross-examination re-produced above, the PW.1 has admitted that, the husband of the accused was died, hence, he produced his death certificate at Ex.P2. On going through the same it reveal that, on 25.06.2010 her husband was died. It also stated that, the bond paper in Ex.P1 agreement was purchased in the year 2009. The PW.1 has deposed that, the e- Stamp Paper was purchased by the son of accused by name Roopkumar.S and on the date of purchase the said agreement was entered into. To make known that, the son of accused Roopkumar.S purchased the e-Stamp Paper is not reflected in the Ex.P1, two stamp papers of Rs.100/- each. The said e-Stamp Paper was purchased in the name of G.S.Solomon, not in the Judgment 27 C.C.No.27327/2014 name of Roopkumar.S, therefore, if at all, the e-Stamp Paper was purchased by the son of accused by name Roopkumar.S, what happened to that e-Stamp Paper, why not produced before this court is not been explained. The PW.1 has deposed that, on the date of purchase of bond paper agreement was entered into. No doubt, agreement was entered on 29.04.2009, as per the entries found in Ex.P1. The Ex.P1 discloses the e-Stamp Papers were purchased by the husband of the complainant, not the son. Therefore, where it has gone, if at all, the agreement was entered into in the name of e-Stamp Paper purchased by son of accused is also not been satisfactorily explained. Therefore, it also contradicts against the documentary evidence at Ex.P1.
38. The PW.1 in his further cross-examination has clearly admitted that, he sent legal notice to the accused; the same got marked at Ex.D2. On going through the Ex.D2 the suggestion was made to the PW.1 that, wherein, it is mentioned that, the property was agreed to purchase and agreement was entered in the year 2011 is been admitted. Therefore, as per the say of PW.1, the agreement was entered into in the year 2011, the same also made mentioned in the Ex.D2 notice caused to the accused. All of sudden, against the said contention made mentioned at the earlier undisputed point of time, all of sudden, how the date of Judgment 28 C.C.No.27327/2014 29.04.2009 came in to entered into present complaint, is not narrated by the complainant. More particularly, the PW.1 has deposed that, in the complaint and notice in order to rectify the change of date, admittedly, not moved any application before the court. Therefore, the said evidence of PW.1 discloses, the conduct of the complainant as to, though he projected the case by stating the agreement was entered into between complainant and accused on 29.04.2011. Subsequently, that too, after the Ex.D1 document collected by the accused, complainant without the knowledge of the court and other side, got rectify the date against his own pleading. The very act of complainant discloses, the approach of the complainant is not fair.
39. As per Ex.P1 it was recited about payment of Rs.4,50,000/- was made as part of sale consideration in the presence of witnesses on 29.04.2009. In the further cross-examination of PW.1, he deposed that:
"2011gÀ°è ºÀtªÀ£ÀÄß DgÉÆæAiÀÄ PÉÊUÉ PÉÆnÖgÀÄvÉÛãÉ. PÀgÁgÀÄ ¥ÀvÀæzÀ ªÁAiÉÄÝ 44 wAUÀ¼ÁVvÀÄÛ."
40. The PW.1 has deposed contrary to his document at Ex.P1 and pleading, stated, in the year 2011 he gave money to the hands of accused and also stated, the validity of the said Judgment 29 C.C.No.27327/2014 agreement was 44 months. If at all, he gave money to the accused in the year 2011, as he deposed, what was the money paid by him, as narrated in the Ex.P1 is also created doubt. It is not his contention that, as per Ex.P1 agreement on 29.04.2009 not paid money to the accused and only paid money in the year 2011, therefore, the oral as well as documentary evidence of PW.1 contradicts each other, as to passing of consideration.
41. That apart, during the course of cross of PW.1, he further deposed that:
"ZÉPÀÌ£ÀÄß DgÉÆæ¬ÄAzÀ 2011gÀ°è ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛãÉ. ºÀt PÉÆqÀĪÁUÀ DgÉÆæAiÀÄ UÀAqÀ EgÀ°®è. DgÉÆæ ¤ÃrzÀ ZÉPï £ÀA§gï, ¢£ÁAPÀ 5£Éà wAUÀ¼ÀÄ 2011 EgÀÄvÀÛzÉ. ¸ÀzÀj ZÉPï gÀÆ.4,50,000/- zÁÝVgÀÄvÀÛzÉ. ZÉPï £ÀA.406576 JAzÀgÉ ¸Àj. ZÉPï ¢£ÁAPÀ:08.05.2014 JAzÀgÉ ¸Àj."
42. As per oral say of PW.1, he deposed that, he obtained cheque at Ex.P4 from the accused in the year 2011. More particularly in his evidence, he deposed that, at the time of he gave money to the accused, her husband was not there. If at all, her husband was not there, why her husband was brought as party in the Ex.P1 and recited about the payment of Rs.4,50,000/- is also not been satisfactorily explained and whatever the doubt Judgment 30 C.C.No.27327/2014 created by the accused with regard to the genuineness of passing of consideration made mentioned in the agreement at Ex.P1 is not removed by the complainant. His own say discloses, he made payment in the year 2011. It is quite contrary to his own recitals at Ex.P1 as well as earlier pleading at Ex.D1.
43. That apart, though in the complaint, he stated questioned cheque was issued by the accused for repayment of the advance money during February, 2014, on oral reconciliation made between the parties. If at all, questioned cheque has pleaded by the complainant was issued during February, 2014, then which was the cheque received by the complainant from the accused during 2011, other than the Ex.P4 is not been proved by the complainant. The complainant has not contended that, he took more than one cheque, under such circumstances, it has to be presume that, questioned cheque at Ex.P4 taken by the complainant in the year 2011 and put the date:08.05.2014 as per his convenience. In the above said testimony it also reveal that, the date of issue cheque, number is mentioned as 5th month of 2011. But the Ex.P4 cheque discloses, 5th month of 2014. On going through the Ex.P4, seeing the same, the accused clearly admitted that, the said cheque bares the date:08.05.2014 for Rs.4,50,000/-. Then, it strongly created doubt, if at all, accused Judgment 31 C.C.No.27327/2014 gave any cheque in the year 2011, that too, in the month of May, definitely, what happened to the said cheque, whether it is none other than the Ex.P4 is also not been explained. From the several contradictory evidence made by the PW.1 against his own pleading as well as documentary evidence it discloses, the complainant has not approached this court with clean hands. Whatever the contention taken by him in the legal notice issued to the accused, at the earliest point of time by mentioning the agreement was entered in the year 2011, as found in Ex.D2, subsequently altered after institution of present case as, the accused successfully demonstrated by producing Ex.D2. From which, it made clear that, complainant got changed the date:29.04.2011 into 29.04.2009. Though, he stated, cheque was issued in the month of May, the said cheque is not been produced, but all of sudden got mentioned the different date:08.05.2014, after lapse of 3 years, the Ex.P4 came in to the picture. It made clear that, whatever the cheque taken by the complainant from the accused through unexplained source, as very case he made doubtful, he filled the same for his convenience, therefore, it is not a ground to accept the very contention of the complainant that, questioned cheque was issued by the accused for discharge of existence of legally recoverable Judgment 32 C.C.No.27327/2014 debt. Though PW.1 subjected for further cross-examination in lengthy, he try to clarify his mistake, but it was not reasonable in accepting, as he himself damaged his case. None of the parties have alleged each other, as to the commission of perjury with regard to the correction of complaint averments. Hence, it does not require to make any specific observation in that regard, as complainant failed in prove his case.
44. The accused in this case has taken up the defence, she gave singed blank cheque and singed blank e-Stamp Paper to her son Roopkumar.S for the purpose of obtaining loan and the complainant being his friend, after his death, got misused the said document by way of filing present case. During the cross- examination of PW.1, he clearly admitted the knowingness of the complainant and Roopkumar.S and had monetary transaction held between them. In that regard, he deposed that:
"DgÉÆæAiÀÄ ªÀÄUÀ gÀÆ¥ÉÃ±ï £À£Àß ¸ÉßûvÀ. DvÀ wÃjPÉÆArzÁÝ£ÉAzÀgÉ ¸Àj. gÀÆ¥ÉÃ±ï ¸ÁgÁ¬Ä PÀÄrAiÀÄÄwÛzÀÝ JAzÀgÉ ¸Àj. gÀÆ¥ÉÃ±ï ¸ÀĪÀiÁgÀÄ 20 ªÀµÀðUÀ½AzÀ UÉÆvÀÄÛ. gÀÆ¥Éñï£À ªÀÄ£ÉAiÀĪÀgÀ ¥ÀjZÀAiÀÄ EgÀ°®è. gÀÆ¥Éñï wÃjPÉÆAqÀÄ 3-4 ªÀµÀð DVgÀ§ºÀÄzÀÄ. gÀÆ¥ÉÃ±ï §ÄzÀÄQzÁÝUÀ £À£Àß ªÀÄvÀÄÛ gÀÆ¥Éñï£À Judgment 33 C.C.No.27327/2014 £ÀqÀÄªÉ ºÀt vÉUÉzÀÄPÉƼÀÄîªÀ ªÀÄvÀÄÛ PÉÆqÀĪÀ ªÀåªÀºÁgÀ EvÀÄÛ JAzÀgÉ ¸Àj."
45. As per the say of PW.1, he clearly admitted that, son of accused is his friend, and he also admitted, he is no more. He also clearly admitted that, the son of accused was in the habit of drunk and he knew 20 years to the complainant. The PW.1 deposed that, he does not know the family members of Roopkumar.S. If at all, he was a friend for the period of 20 years, he does not know the family members of the accused is also created doubt. But he admitted, about 3 - 4 years back the son of accused was died. More particularly, the PW.1 has deposed that, during the lifetime of Roopkumar.S, there was money transaction between him and complainant. The same is substantiated the probable defence of the accused, as to the transaction held between complainant and accused. It was also suggested to the PW.1, the situation how the questioned cheque and stamp paper came to the possession of the complainant. In the cross- examination of PW.1, further deposed that:
"gÀÆ¥ÉÃ±ï §zÀÄQzÁÝUÀ ¤¦-1gÀ°è w½¹zÀ D¹Û PÀÄjvÀÄ vÀPÀgÁgÀÄ EvÀÄÛ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQë ªÀÄÄAzÀĪÀjzÀÄ D jÃw gÀÆ¥ÉÃ±ï £À£ÀUÉ ºÉýgÀ°®è JAzÀÄ £ÀÄr¢gÀÄvÁÛgÉ. ¤¦-1gÀ°è w½¹zÀ Judgment 34 C.C.No.27327/2014 ±ÉqÀÆå¯ï D¹ÛAiÀÄ ªÉÄÃ¯É ¤£ÀUÉ ¸Á® PÉÆr¸ÀÄvÉÛÃ£É JAzÀÄ gÀÆ¥Éñï¤UÉ ºÉýzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. DUÀ ¸ÀzÀj D¹ÛAiÀÄ£ÀÄß ¤£Àß ºÉ¸ÀjUÉ ªÀiÁrPÉƽî JAzÀÄ ºÉýzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. D ¸ÀªÀÄAiÀÄzÀ°è CAzÀgÉ 2009gÀ°è D¹ÛAiÀÄ PÀgÁgÀÄ ¥ÀvÀæ DgÉÆæAiÀÄ ºÉ¸Àj£À°è EgÀĪÀÅzÀjAzÀ DgÉÆæUÉ ¸ÉÃjzÀ MAzÀÄ SÁ° ZÉPï ªÀÄvÀÄÛ MAzÀÄ SÁ° ¨ÁAqï ¥ÉÃ¥Àgï PÉÆr JAzÀÄ PÉýzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. £À£Àß PÉÆÃjPÉAiÀÄ ªÉÄÃgÉUÉ gÀÆ¥Éñï DvÀ£À vÁ¬ÄUÉ ¸ÉÃjzÀ MAzÀÄ SÁ° ZÉQÌUÉ ªÀÄvÀÄÛ MAzÀÄ SÁ° ¨ÁAqï ¥ÉÃ¥ÀgïUÉ DvÀ£À vÁ¬ÄAiÀÄ ¸À»AiÀÄ£ÀÄß ªÀiÁr¹ £À£ÀUÉ 2009gÀ°è PÉÆnÖzÀÝ£ÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. D jÃw £Á£ÀÄ gÀÆ¥Éñï¤UÉ AiÀiÁªÀÅzÉà ¸Á®ªÀ£ÀÄß PÉÆr¸À°®è ªÀÄvÀÄÛ zÁR¯ÉUÀ¼À£ÀÄß ªÁ¥À¸ï PÉÆqÀ°®è JAzÀÄ ¸ÀÆa¹zÀgÉ ¸ÁQë ¸Á® PÉÆr¸ÀÄvÉÛãÉAzÀÄ £Á£ÀÄ ºÉýgÀ°®è JAzÀÄ £ÀÄr¢gÀÄvÁÛgÉ."
46. During the course of cross of PW.1, he admitted that, earlier he was taxi driver and also doing real estate business. In the above said testimony of PW.1, the suggestion made to him that, in respect of the property covered under Ex.P1, there was dispute was there. PW.1 has deposed that, Roopkumar.S not told about the same to him. The PW.1 has denied the suggestion made by the accused that, he assured Roopkumar.S to obtain loan on the property covered under Ex.P1 agreement. He also denied that, he advised Roopkumar.S to obtain the said property in his claim.
Judgment 35 C.C.No.27327/2014 The PW.1 has denied the defence suggestion made by the accused that, by that time, since the property agreement in the year 2009 was stood in the name of accused, he asked her son to bring one singed blank cheque and one blank e-Stamp Paper and on his request, Roopkumar.S brought one singed blank cheque and e-Stamp Paper of his mother and handed over to the complainant in the year 2009. It also denied by the PW.1 that, as assured by the PW.1, not provide any loan to Roopkumar.S nor returned those documents. The said defence though, denied by the PW.1, it reveal the transaction held between complainant and Roopkumar.S.
47. Any how, the said defence is suggestion discloses, the singed blank cheque and e-Stamp Paper came from the hands of accused to the complainant through Roopkumar.S. However, the PW.1 has denied the same, but on account of inconsistence contention taken and placed by the PW.1, it also creates doubt, as to how those documents came to the possession of complainant, other than the reason assigned by the accused. No doubt, in this case, the complainant has produced other documents, which from Exs.P12 to P20 pertaining to the property covered under Ex.P1. Since, the present case is not for specific performance or declaration, whatever it may contents, appreciate those Judgment 36 C.C.No.27327/2014 documents does not require, as none of the parties are seeking for specific performance. Admittedly, as suggested by the complainant to the DW.1, the husband of the accused by illegal document produced the property covered under Ex.P3 and in turn, though know that, he had no right to sold the said property to the complainant, those appreciation does not required.
48. In this case, the complainant also choosen to produced and marked the documents alleged to be executed by Roopkumar.S, which are none other than, Exs.P24 to P26, which are Samujayashi Pathra and On demand promissory note and consideration receipt respectively. On going through the Samujayashi Pathra, it was alleged to be made on 23.02.2011 executed by Roopkumar.S during his lifetime. The Exs.P25 and P26 On demand promissory note and consideration receipt also alleged to be made on the same date. On going through the Ex.P24 at the last line, it is mentioned that, he admitted the receipt of Rs.4,50,000/-, but not stated, who received either Roopkumar.S or his father nor his mother, but he simply stated that, sum of Rs.4,50,000/- was received and would not returned the said money and if available document would be given. The said Samujayashi Pathra, unless perform the agreement at Ex.P1 or Judgment 37 C.C.No.27327/2014 refund of money, the question of considering the Ex.P24 there is no valid reason.
49. That apart, the On demand promissory note and consideration receipt is also no valid, as the Ex.P1 document does not discloses, Roopkumar.S was received Rs.4,50,000/-. When Roopkumar.S came to be died, automatically the claim of the complainant based on Exs.P24 to P26 automatically lapsed and it is not enforceable against the accused, therefore, no sanctity can be attached to those documents. That apart, the complainant has produced the document at Exs.P12 to P15 pertaining to PCR in No.13183/2014. In the said sworn statement, copy of the complaint at Ex.P12, it discloses, the agreement dated:29.04.2011. The said agreement date does not disclosed in the complaint. Therefore, against the complaint allegations in the affidavit at Ex.P12 cited the date:29.04.2011, therefore, it creates doubt in rely upon the same. Admittedly, the complainant has deposed, he produced the complaint copy and other documents at Exs.P13 to P15 pertaining to C.C.No.28384/2014 filed by the complainant against Shivakumar.V, the same does not connected to the present case, therefore, no need to appreciate those documents. Further, by way of cross-examining the PW.1, accused has attack on the Judgment 38 C.C.No.27327/2014 claim of complainant and successfully created reverse burden as required under Section 139 of Negotiable Instruments Act. Despite that, complainant has utterly failed to prove, as to the genuine transaction held between complainant and accused based on Ex.P4. His documents, pleading as well as evidence goes against his own contention, as to the entered into the alleged agreement. When he utterly failed to prove the execution of alleged agreement at Ex.P1, by examining any one of the witness on account of the contradictory evidence of PW.1, it is also difficult to accept the payment of Rs.4,50,000/- made by the complainant to the accused. Even in his cross-examination, he deposed, contrary as to the particulars of payment of money as well as alleged issuance of questioned cheque. Hence, it made clear that, the complainant possessed the questiond cheque through the unexplained source, then put forth the present case in order to make claim. But he utterly failed to prove that, the amount made mentioned in the questioned cheque at Ex.P4 is the existence of legally recoverable debt payable by the accused to him. Under such circumstances, mere because of questioned cheque bares the signature of the accused, it does not mean that, it was issued for discharge of existence of legally recoverable debt. The accused is successfully proved her probable defence Judgment 39 C.C.No.27327/2014 and demolished the very case of complainant. Hence, the accused is entitled for benefit of doubt for acquittal.
50. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
In the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
"Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
In the decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
Judgment 40 C.C.No.27327/2014 "Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act -
Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
51. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
Judgment 41 C.C.No.27327/2014
52. In this case on hand also, on the lack of the complaint failed to prove the alleged sale transaction, it can gather the probability that, she is not liable to pay Ex.P1 cheque amount of Rs.4,50,000/- and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has received the advance sale consideration amount of Rs.4,50,000/- and she is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken her defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.4,50,000/-. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
53. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Judgment 42 C.C.No.27327/2014 Ex.P1 in discharge of her legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
54. From the careful appreciation material evidence on record, it is very much clear that, without there being any sale transaction between the complainant and accused, only with an intention causing harm to the accused, the complainant has lodged the instant complaint before this court and no independent evidence adduced to prove the alleged transaction set up by him, that too, in case like 2014. There is no material piece of evidence produced by the complainant before this court to substantiate it.
55. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce Judgment 43 C.C.No.27327/2014 cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and she need not prove the defence beyond reasonable doubt.
56. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.4,50,000/- legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his case beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
57. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 44 C.C.No.27327/2014 ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 14th day of February
- 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : K.Nagaraja List of Exhibits marked on behalf of Complainant:
Ex.P1 : Agreement of sale
Ex.P2 : Copy of death certificate
Ex.P3 : CC of registered agreement of sale
Ex.P4 : Original Cheque
Ex.P4(a) : Signature of accused
Exs.P5 & P6 : Bank endorsements
Ex.P7 : Challan counter foil
Ex.P8 : Office copy of legal notice
Ex.P9 : Postal receipt
Ex.P10 : Postal Acknowledgment card
Ex.P10(a) : Signature of accused
Ex.P11 : Professional courier receipt
Ex.P12 : CC of sworn statement Affidavit
Ex.P13 : CC of private complaint
Ex.P14 : List of documents
Ex.P15 : CC of order sheet
Judgment 45 C.C.No.27327/2014
Ex.P16 : CC of sale deed
Exs.P17 to P20 : Encumbrance Certificate
Ex.P21 : CC of complaint
Ex.P22 : Acknowledgment
Ex.P22(a) : Signature of Roopkumar.S
Ex.P23 : Copy of legal notice
Ex.P24 : Samujayishi pathra
Ex.P24(a) : Signature of Roopkumar.S
Exs.P25 & P26 : On demand promissory note and
consideration receipt
Exs.P25(a) & P26(a) : Signatures of Roopkumar.S
List of Witnesses examined on behalf of the defence:
DW.1 : Stella List of Exhibits marked on behalf of defence:
Ex.D1 : CC of private complaint
Ex.D2 : Legal notice dtd:25.07.2014
Ex.D3 : Sworn statement affidavit
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 46 C.C.No.27327/2014
14.02.2020.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide
separate order.
*****
ORDER
Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence
punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.