Bangalore District Court
Sri. Abhay Kumar Jain vs Sri. Pankaj.R.Makkanna on 11 May, 2016
IN THE COURT OF THE XVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
DATED : THIS THE 11TH DAY OF MAY 2016
PRESENT: LAKSHMINARAYANA BHAT.K., B.A., LL.B.
XVIII ADDL.C.M.M., BANGALORE
C.C.NO: 17561/2013, 17562/2013 AND 17568/2013
Complainant: Sri. Abhay Kumar Jain,
S/o. Lalith Kumar Jain,
Aged about 22 years,
Residing at No: 773,
Ganesh Saw Mill Road,
T. Dasarahalli,
Bangalore-560 057.
(Represented by
Shri.C.H.Hanumantharaya., Advocate)
V/s.
Accused : Sri. Pankaj.R.Makkanna,
S/o. Ravi Prakash Makkanna,
Aged about 24 years,
Residing at No: 10,
1st Main Road,
Sripuram,
Sheshadripuram,
Bangalore-560 020.
Also at:-
Pankaj.R.Makkanna,
C/o. Makkanna Jewellers,
No.19, 1st Floor,
AGMP Complex,
Near Union Bank,
CT Street,
Bengaluru - 560 002.
(Represented by Sri.T. Subramanya.,
Advocate)
Offence complained of: U/s.138 of N.I.Act
2 CC.Nos:17561/2013,
17562/2013 and
17568/2013
Plea of accused: Pleaded not guilty
Final order Accused is found not guilty
Date of order: 11/5/2016
JUDGMENT
The complaint was filed against the accused for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter in short referred as N.I. Act.).
2. After filing of the complaint, cognizance of the offence was taken. After recording sworn statement in pursuance of summons, presence of the accused was secured and he was enlarged on bail. The substance of accusation was recorded and the accused pleaded not guilty.
3. In all these cases, the complaint was filed against the same accused and hence all these mattes are taken up together for disposal by a common Judgment. The complainant in all these cases was examined as P.W.1 and has produced documents as per Ex.P.1 to Ex.P.7. The accused was examined under Section 313 of Cr.P.C. In all the cases, the accused was examined as D.W.1 and in C.C.No:17561/2013 the accused has produced documents marked as per Ex.D.1 to Ex.D.11. One witness was examined on behalf of the accused as D.W.2.
3 CC.Nos:17561/2013,
17562/2013 and 17568/2013
4. Heard the arguments. The learned Advocate appearing for the parties have placed reliance on following reported Judgments. For the Complainant :-
(1) (2010) 11 SCC 441 in Rangappa V/s. Mohan.
(2) (2015) 8 SCC 378 in T.Vasanthakumar V/s.
Vijayakumari.
(3) 2007 SCC online Bom 670 in Ravikant.C.Borkar V/s. Gokuldas Ramchandra Naik and another.
(4) (2002) 1 SCC 234 in M.M.T.C. Ltd and another V/s. Medchl Chemicals and Pharma (P) Ltd and another. (5) (2002) 1 SCC 235 in Goa Plast (P) Ltd V/s. Chico Ursula D'Souza.
(6) (2001) 8 SCC 458 in K.N.Beena V/s. Muniyappan and another.
For the Accused :-
(1) 2008 (6) AIR KAR 432 in Shiva Murthy V/s. Amruthraj.
(2) 2008 AIR SCW 7702 in P.Venugopal V/s.
Madan.P.Sarathi.
(3) 2011 Crl.L.J. 552 in Amzad Pasha V/s.
H.N.Lakshmana.
(4) AIR 2010 Supreme Court 1898 in Rangappa V/s. Mohan.
(5) 2008 AIR SCW 738 in Krishna Janardhan Bhat V/s. Dattatraya.G.Hegde.
(6) ILR 2004 KAR 433 in K.R.Indira V/s.
Dr.G.Adinarayana.
4 CC.Nos:17561/2013,
17562/2013 and
17568/2013
(7) (2006) 3 Supreme Court Cases (Cri) 30 in M.S.Narayana Menon alias Mani V/s. State of Kerala and another.
(8) Crl. Appeal No: 16/2015 in R.Krishnappa V/s. N.Rame Gowda dated 13/1/2016.
5. After analyzing the averments made in the complaint, oral and documentary evidence placed on record and after hearing the arguments, at this stage the points that arise for my determination are:-
1) Whether the complainant has proved he had advanced a total amount of Rs.42 lakhs to the accused and Ex.P.1 cheques issued by the accused, the subject matter of the above three complaints, came to be dishonoured and even after service of notice, the accused had failed to pay the amount and thereby he is guilty of the offence punishable under Section 138 of N.I.Act?
2) What order?
6. My findings on the aforesaid points are as under:-
POINT NO.1 : In the Negative, POINT NO.2 : As per final order, for the following:-
REASONS
7. POINT NO.1:- As per the complaint averments, the complainant is a B.Com graduate and he is associated with his father in his family 5 CC.Nos:17561/2013, 17562/2013 and 17568/2013 business. The complainant and accused are known to each other for the past several years as friends. The complainant and his family members had lot of fondness for the accused and for the family of the accused. That being so, on 20/7/2011, the accused demanded money from the complainant and he wanted to invest in their business. The complainant was not having large savings to spare for the monetary needs of the accused and he asked his father Lalith Kumar Jain and promised that he would return to same before February 2012. The father of the complainant appears to have paid Rs.32 lakhs to the complainant and the accused had received the said amount from the complainant. Thereafter, the accused has made another plea to the complainant to lend further sum of Rs.10 lakhs in the same month and the complainant had advanced additional amount of Rs.10 lakhs to the accused. It is submitted the complainant and his father are having enormous faith and trust in the accused and his family members. It is admitted to their surprise the accused had failed to make repayment of the said amount and after repeated request and insistence, the accused finally agreed to issue 3 cheques in favour of the complainant bearing No: 088241 dated 30/10/2012 for Rs.15 lakhs, cheque No: 088242 dated 31/10/2012 for Rs.15 lakhs and cheque No: 088243 dated 2/11/2012 for Rs.12 lakhs. All the cheques were drawn on Union Bank of India, Chowdeshwari Temple Street Branch, Bengaluru. When the 6 CC.Nos:17561/2013, 17562/2013 and 17568/2013 complainant presented those cheques, to his surprise, all the cheques were dishonoured. 2 memos were returned unpaid with an endorsement "Funds Insufficient" on 1/11/2012, and another memo dated 3/11/2012 with an endorsement "Payment stopped by the drawer". The complainant claimed to have issued demand notice dated 30/11/2012 calling upon the accused to make payment of the dishonoured cheque amount. After service of notice, the accused has neither made payment nor sent any reply. The complainant in his affidavit filed in lieu of his examination-in-chief in the respective complaints deposed as per the averments made in the complaint.
8. The accused in his defence evidence specifically admitted he is acquainted with the complainant. As per his evidence, from 2008 to 2010 they were studying together in Sheshadripuram College and they were college mates. He has further deposed the brother of the accused D.W.2 and the complainant are friends. The accused has specifically denied borrowed loan of Rs.42 lakhs from the complainant in two installments or in discharge of the aforesaid debt he had issued 3 cheques in favour of the complainant for a total amount of Rs.42 lakhs. As per the specific defence of the accused, there was a betting transaction between the complainant and the brother of the accused D.W.2. As per the said transaction, the complainant was in due and 7 CC.Nos:17561/2013, 17562/2013 and 17568/2013 liable to make payment of Rs.12 lakhs to the brother of the accused D.W.2. The complainant has sought 2 months time to make payment and after 2 months, when D.W.2 appears to have demanded money from the complainant, at that time the complainant has claimed D.W.2 himself is liable to make payment of Rs.15 lakhs betting amount. Therefore, both of them have mutually settled their dispute amicably.
9. The other allegations made against the complainant is that, the complainant and his friends were coming to the shop of the accused and were demanding a sum of Rs.15 lakhs and Rs.30 lakhs from the accused. He further stated the complainant has threatened with criminal intimidation against the father and brother of the accused. The accused further admitted when the complainant had demanded cheque, out of fear he had handed over 12 blank signed cheques to the complainant. In this regard, the accused has submitted himself and his brother D.W.2 have submitted a petition to Sheshadripuram police station as per Ex.D.1. The accused further admitted on 8/8/2012 he had again given intimation to the Bank for stop payment of those cheques in the event they are presented for encashment. He has further submitted issued public notice in daily newspaper dated 11/9/2012 alleging the complainant has forcibly obtained 12 blank signed cheques. The accused has admitted service of Ex.P.6 statutory demand notice sent on 8 CC.Nos:17561/2013, 17562/2013 and 17568/2013 behalf of the complainant and he had not sent any reply to the said notice. The accused has specifically denied he had borrowed loan of Rs.30 lakhs and Rs.12 lakhs from the complainant as alleged in the complaint or in discharge of the said debt he had issued 3 cheques subject matter of these complaints in favour of the complainant. It is submitted the contents of Ex.P.1 cheque produced by the complainant are not filled by the accused. For the aforesaid reasons he has prayed for dismissal of the complaint.
10. As per the specific case of the complainant, on 20/7/2011 the complainant claimed to have advanced Rs.32 lakhs to the accused in the first installment and in the same month July 2011, he had again advanced Rs.10 lakhs and in all Rs.42 lakhs to the accused by cash and the accused had borrowed loan to improve his business. The complainant and accused are acquainted with each other is not in dispute. The accused has accepted Ex.P.1 cheque marked in all the three cases and his signature appearing in those cheques. As per Section 139 of N.I. Act, there is a statutory presumption in favour of the complainant that Ex.P.1 cheque was issued in discharge of any debt or other liability. Therefore, it is the burden of the accused to show non- existence of debt or liability and the cheques were not issued in favour of the complainant in discharge of any debt or other liability. Whether the 9 CC.Nos:17561/2013, 17562/2013 and 17568/2013 accused has discharged his burden by placing sufficient evidence is a question of fact to be decided from the documentary and oral evidence placed on record.
11. The accused during cross-examination of the complainant and in his oral evidence specifically disputed borrowed loan of Rs.42 lakhs from the complainant. As averred in Para No.4 of the complaint and affidavit filed in lieu of his examination-in-chief, in Para No.3 of Ex.P.3 statutory demand notice issued to the accused, in clear and unambiguous terms that "he had no large savings to spare for the monetary needs of the accused and he had asked his father Mr. Lalith Kumar Jain, if he could lend the money to the accused, on the promise that the accused would return the same by February 2012".
It is further submitted accordingly the father of the complainant Lalith Kumar Jain had advanced Rs.32 lakhs and Rs.10 lakhs to the complainant in two installments and the complainant had advanced the said amount to the accused. Therefore, as per the admission of the complainant, the total amount of Rs.42 lakhs claimed to have been advanced in favour of the accused belonged to his father Lalith Kumar Jain. The complainant has not explained how his father has arranged a sum of Rs.42 lakhs within a period of 10 days immediately after the accused had demanded loan on 20/7/2011 and before 31/7/2011 which 10 CC.Nos:17561/2013, 17562/2013 and 17568/2013 was advanced in favour of the accused. It is not the case of the complainant that his father had ready cash of Rs.42 lakhs in their house. The complainant during his cross-examination has shown ignorance whether his father had declared the advancement of loan of Rs.42 lakhs to the accused in the Income Tax documents. During cross-examination, the complainant has deposed on 20/7/2011 the accused had demanded Rs.35 lakhs and in the same month in two installments he claimed to have advanced Rs.32 lakhs and Rs.10 lakhs to the accused, but failed to depose the date of advancement of loan. At this stage, the question arises for determination is whether any prudent man even not remembering the date of advancement of huge amount of Rs.42 lakhs is unbelievable. The complainant or his father did not insist the accused to execute any documents in proof of borrowing huge amount of Rs.32 lakhs and Rs.10 lakhs as on the date of advancement of loan is the other suspicious circumstances appearing in the case of the complainant. As per the evidence of the complainant, it is elicited during cross-examination that the accused had issued Ex.P.1 cheque in favour of the complainant when demanded repayment of the loan in the month of September 2012. As per the complaint averments, it is submitted the accused had assured to make repayment of the loan amount before February 2012. Therefore, as per the case of the complainant and evidence of P.W.1, from the date of advancement of loan July 2011 till 11 CC.Nos:17561/2013, 17562/2013 and 17568/2013 September 2012, the accused had issued 3 cheques for Rs.42 lakhs, the complainant was not having any documents in support of the advancement of loan for recovery of the said amount is highly improbable.
12. The complainant has admitted he had borrowed Rs.42 lakhs from his father and advanced the said amount to the accused. The complainant has not examined his aforesaid father as a witness to prove the transaction. The name of the father finds reference in the list of witness filed with the complaint dated 11/1/2013 along with other two witnesses Dilip.B.M. and the Manager of Vijaya Bank. In the entire evidence, there is no reference how Dilip.B.M. is aware of the facts of the case and whether he is a witness to the transaction. The complainant has not forwarded any explanation regarding non-examination of his father who is a material witness to the complaint alleged transaction. During cross-examination of P.W.1, it is elicited by the accused that the complainant is not having any documents to show in July 2011 his father had ready cash of Rs.32 lakhs and Rs.10 lakhs respectively for the purpose of advancement of loan in favour of the accused. Therefore, in proof of passing of consideration, except the contents of affidavit filed by P.W.1 in lieu of his examination-in-chief, there is no other documentary or oral evidence. The complainant or his father did not insist the 12 CC.Nos:17561/2013, 17562/2013 and 17568/2013 accused to execute loan agreement or demand promissory note which casts serious suspicion regarding the alleged loan transaction. The complainant or the accused have not disclosed the income from their business. A prudent man before advancement of loan ascertains the purpose of borrowing loan and the financial capacity of the borrower to make repayment within time assured by him. In the case on hand, whether the complainant or his father have ascertained the nature of improvement the accused has undertaken to do in their business, daily business of the accused from the shop and whether he is capable to make repayment of Rs.42 lakhs within February 2012, there is absolutely no evidence is placed. In this regard, the learned Advocate appearing for the complainant has failed to cross-examine the accused.
13. The accused in his defence evidence admitted Ex.P.1 cheque marked in all the three cases pertains to his Bank account and also his signature appearing in those cheques marked as per Ex.P.1(a). The accused has specifically submitted he had not filled the contents of those cheques. During cross-examination of D.W.1, in Para No.2 the accused has not admitted he has filled the contents of Ex.P.1 cheque. It is true as per the provisions of N.I. Act it is not mandatory that the drawer of the cheque has to fill the contents. But as per the evidence of the accused, the complainant has forcibly obtained 12 blank signed cheques, filled the 13 CC.Nos:17561/2013, 17562/2013 and 17568/2013 instrument for an imaginary amount and presented those cheques for encashment. Ex.P.1 cheque marked in all the three cases bearing serial No: 088241 dated 30/10/2012 for Rs.15 lakhs, cheque No: 088242 dated 31/10/2012 for Rs.15 lakhs and cheque No: 088243 dated 2/11/2012 for Rs.12 lakhs. As per the evidence placed on record, there is no reference regarding the parties to the case had any earlier financial transaction in between them. Ex.P.1 cheque is drawn on Union Bank of India, Chowdeshwari Temple Street Branch, Bengaluru. As per Ex.P.2 memo dated 1/11/2012 in C.C.No:17561/2013 and C.C.No:17568/2013, Ex.P.1 cheque marked in these cases were dishonoured with an endorsement "Funds Insufficient" and in C.C.No:
17562/2013 as per Ex.P.2 memo, the cheque was dishonoured with an endorsement "Payment stopped by the drawer". Ex.D.4 is the endorsement produced by the accused issued by Union Bank of India and its content reads "ACCEPTED STOP PAYMENT FOR THE Account number: 376302010768257/INR/37630 PANKAJ R With begin cheque number: 2088241 and number of the leaves being:12 And the account balance at the time of accepting of the stop payment was: INR 4,118.80 Cr. and the stop payment accept date and time was:09-08-2012 12:58:33 Bearing payee name 14 CC.Nos:17561/2013, 17562/2013 and 17568/2013 M/s instrument dated: and the cheque amount being: INR0.00 the reason for the stop is stated as:
002/PAYMENT STOPPED BY DRAWER".
It appears in Ex.D.4, due to typographical error the cheque number has been shown as 2088241 instead of 088241. It is proved from the contents of Ex.D.4 that as on 9/8/2012 the accused has issued intimation to the Bank for stop payment of 12 cheques from serial number 088241 to 088252. In Ex.D.3 copy of the letter dated 8/8/2012, the accused requested the Bank for stop payment of cheque Nos: 088241 to 088252 and those cheques have been forcibly obtained and therefore in Ex.D.3 document finds no reference regarding the name of the complainant, is not so much relevant. In the result, as per the evidence of P.W.1 as deposed in his cross-examination that in the month of September 2012 the accused had issued three cheques marked as per Ex.P.1 in all the three cases is apparently false and unbelievable. It is not the case of the complainant that before issuing the cheque the accused had issued intimation to the Bank for stop payment as per Ex.D.3 and Ex.D.4 and thereafter issued 3 cheques marked as per Ex.P.1 is highly improbable. The accused has produced Ex.D.1 copy of petition submitted to Inspector of Police, Sheshadripuram Police station and the document is undated. Ex.D.2 is the endorsement given by Sheshadripuram Police in favour of D.W.2 the brother of the accused, 15 CC.Nos:17561/2013, 17562/2013 and 17568/2013 and in the said document there is reference regarding the date of Petition as 3/8/2012. Therefore, before approaching the Bank for stop payment as per Ex.D.3 and Ex.D.4, the accused and his brother have given intimation to the police as per Ex.D.1 and Ex.D.2 is made out. The complainant during his cross-examination specifically admitted in connection with the complaint alleged dispute, he had been called to Sheshadripuram police station. The learned defence counsel has vehemently argued that Sheshadripuram police station was not having territorial jurisdiction in the matter and the accused and his brother in collusion with the police officers have submitted petition to the said police station. It is pertinent to note, in furtherance of Ex.D.1 and Ex.D.2, the concerned police had not initiated any legal action against the complainant. Moreover, even before the complainant had presented the cheques marked as per Ex.P.1 for encashment, the accused published pubic notice in Ex.D.6 and Ex.D.7 Kannada and English daily on 11/9/2012 that the cheque bearing Nos: 088241 to 088252 have been forcibly obtained from his possession which includes cheques marked as Ex.P.1 cheques in all these cases. Therefore, from the documentary evidence marked as per Ex.D.1 to Ex.D.7 and from his oral evidence, the accused has acted as a prudent man to prevent misuse of 3 cheques marked as per Ex.P.1 in all these cases is prima facie made out. The aforesaid evidence creates doubt regarding advancement of Rs.42 16 CC.Nos:17561/2013, 17562/2013 and 17568/2013 lakhs hand loan to the accused in the month of July 2011 or in discharge of the said debt the accused had issued these 3 cheques in favour of the complainant.
14. The accused has produced Ex.D.11 passbook issued by Union Bank of India, Chowdeshwari Temple Street Branch, Bengaluru. He has further produced Ex.D.10 cheque book and as per the document, there is unused cheque leaves bearing serial Nos: 088253 to 088260. As per the record slip of Ex.D.1 cheque book, there is no reference regarding in favour of whom the accused had issued cheque Nos: 088241 to 088252 and the column in which some writings have been made is striked out. Ex.P.1 cheque marked in all these cases are also cheque leaves of Ex.D.10 cheque book. As per Ex.D.11, the accused had opened his new account in Union Bank of India by depositing a sum of Rs.5,000/- on 15/3/2012 and there is a reference that it is a new account. Ex.D.11 contains transaction for the period 15/3/2012 to 2/2/2014. In Ex.D.11, as per entry dated 9/8/2012, a sum of Rs.200/- has been deducted from the Bank account of the accused as stop payment charges. Therefore, the aforesaid deduction made by the Bank is in correspondence with Ex.D.3 and Ex.D.4, and the stop payment instruction given by the accused can be ascertained. As per the contents of Ex.D.11 Bank account extract, from 15/3/2012 to 2/2/2014 17 CC.Nos:17561/2013, 17562/2013 and 17568/2013 the accused was maintaining maximum bank balance of Rs.13,000/- on 28/3/2012 and minimum balance of Rs.22/- on 30/7/2013. Therefore, at this stage the question arises for determination is whether any prudent man may advance huge amount of Rs.42 lakhs without obtaining any documents from the accused and his Bank balance as per Ex.D.11 was Rs.13,000/- for a period of almost 2 years. Moreover, the complainant claimed to have advanced Rs.42 lakhs in the month of July 2011 and the accused had issued Ex.P.1 cheque dated 31/10/2012, 30/10/2012 and 2/11/2012 for the principal loan amount of Rs.42 lakhs and the complainant had advanced the said amount without charging any interest for the period of more than 15 months is not acceptable and probable.
15. The learned defence counsel has vehemently argued there is a presumption in favour of the complainant under Section 139 of N.I. Act and therefore on the basis of presumption the complainant has proved the alleged transaction. As per Section 139 of N.I. Act, there is a presumption that the cheque had been issued in discharge of any debt or liability. The cheque amount of Rs.42 lakhs is the actual debt and the said amount was advanced, and towards repayment of the said amount 3 cheques as per Ex.P.1 were issued is to be proved by independent evidence. In the case on hand, the complainant has filled 3 cheques 18 CC.Nos:17561/2013, 17562/2013 and 17568/2013 marked as per Ex.P.1 for an imaginary amount of Rs.42 lakhs, cannot be totally ruled out. The accused has failed to send reply to Ex.P.3 demand notice sent on behalf of the complainant is in itself not sufficient to draw adverse inference against him. Even in the absence of issuing reply during the course of trial, the accused is having every liberty to put forward all the defences available to him to disprove the complaint alleged transaction. The complainant is expected to approach the court with clean hands and with specific case. He cannot take advantage of the weakness of the defence to prove his case. It is well settled principle of law that the standard of proof for proving the defence is preponderance of probabilities and the accused is not expected to place high standard of proof in support of his defence. In this regard, both the parties have relied upon the Judgment of Hon'ble Apex Court in its full Bench in Rangappa V/s. Mohan case referred supra. In this Judgment, Hon'ble Court held "27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instrument. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be 19 CC.Nos:17561/2013, 17562/2013 and 17568/2013 better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clause and the defendant accused cannot be expected to discharge an unduly high standard or proof".
"28. In the absence of compelling justifications, reverse onus clause usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubt about the existence of legally enforceable debt or liability, the prosecution can fail. AS clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
I have also referred the Judgment reported in Kumar Exports V/s. Sharma Carpets reported in ILR 2009 KAR 1633. In Para No.20 of the aforesaid Judgment it is held as below:-
"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did 20 CC.Nos:17561/2013, 17562/2013 and 17568/2013 not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the non- existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, bare denial of the passing of consideration and existence of debt, apparently does not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift 21 CC.Nos:17561/2013, 17562/2013 and 17568/2013 again on the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act".
In addition, I have also relied on the Judgment of Hon'ble Apex Court reported in 2014 AIR (Criminal) 1 in John K.Abraham V/s. Simon.C.Abraham and another, wherein Hon'ble Court held "Presumption under - Drawing of Party on whom burden for the same lies - Such burden heavily lay upon the complainant to show - (1) that he had required funds for having advanced the money to the accused - (2) further that the issuance of the cheque in support of such payment advanced was true and - (3) that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant".
I have relied on the Judgment of Hon'ble Apex Court in AIR 2008 SC 278 in John.K.John V/s. Tom Varghese and another. In this Judgment, Hon'ble court held "It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only 22 CC.Nos:17561/2013, 17562/2013 and 17568/2013 no document had been executed, even no interest had been charged".
From the documentary and oral evidence placed on record and in the case on hand, before the complainant has presented the cheque, the accused had approached Sheshadripuram police station as per Ex.D.1 and Ex.D.2. He has also given intimation to the Bank for stop payment as per Ex.D.3 and Ex.D.4. As per the Judgment relied by the learned Advocate appearing for the complainant referred supra in Ravi Kant case, the cheque amount is only Rs.58,750/-. As per the facts and circumstances of the case and evidence placed on record, the Court came to the conclusion that the cheques were forcibly taken is not proved. It is not the defence of the accused that the cheques were dishonoured with an endorsement "stop payment" does not attract the offence punishable under Section 138 of N.I. Act. The accused has not disputed in his defence that when the 3 cheques marked as per Ex.P.1 in all the 3 cases were presented, there was sufficient balance of Rs.42 lakhs in his account. The accused during cross-examination of the complainant and in his defence evidence is able to create doubt regarding cheque amount of Rs.42 lakhs as debt or liability. He has further able to make out a probable defence that Ex.P.1 cheques in all the cases were not issued in favour of the complainant in discharge of any debt or other liability. The accused has discharged his initial burden by placing prima facie 23 CC.Nos:17561/2013, 17562/2013 and 17568/2013 evidence. The evidence of D.W.2 is not relevant to rebut the presumption appearing in favour of the complainant under Section 139 of N.I. Act. In a criminal case, it is a well settled principle of law that, the accused in his defence is entitled to take conflicting, contradicting and inconsistent defences. Therefore, the argument of the learned counsel for the complainant that the accused has failed to prove Ex.P.1 cheques were issued in connection with the cricket betting transaction is not proved cannot be sustained. The complainant has failed to place substantive evidence to prove passing of consideration of Rs.42 lakhs in favour of the accused. Even from the other evidence, the accused has rebutted the presumption appearing in favour of the complainant under Section 139 of the Act. Therefore, my findings on Point No.1 is in the negative.
16. POINT NO.2:- In view of my findings on Point No.1., the accused is liable to be acquitted for the offence punishable under Section 138 of N.I. Act. Hence, I proceed to pass the following:-
ORDER Acting under Section 255 (1) of Cr.P.C, accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is set at liberty. The bail bond and surety bonds hereby stands discharged.24 CC.Nos:17561/2013,
17562/2013 and 17568/2013 The original Judgment shall be kept in C.C.No: 17561/2013 and the copy shall form part of the record in C.C.No: 17562/2013 and 17568/2013.
(Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 11th day of May 2016).
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.
ANNEXURE IN C.C.NO: 17561/2013
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri. Abhay Kumar Jain.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque No:088242 dated 31/10/2012 for Rs.15 lakhs.
Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Office copy of demand notice. Ex.P.4 and Ex.P.5 : Two Postal receipts.
Ex.P.6 and Ex.P.7 : Two postal acknowledgements.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Sri. Pankaj.R.Makkanna. D.W.2 : Sri. R. Vicky Kumar.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D.1 : Complaint given to police station.
Ex.D.2 : Acknowledgment received from
police station.
Ex.D.3 : Stop payment given to the Bank.
Ex.D.4 : Bank endorsement.
Ex.D.5 : Public notice.
Ex.D.6 and Ex.D.7 : Newspaper publication. Ex.D.8 : Complaint given to police station.
25 CC.Nos:17561/2013,
17562/2013 and
17568/2013
Ex.D.9 : Acknowledgment received from
police station.
Ex.D.10 : Bank cheque book.
Ex.D.11 : Bank passbook.
XVIII A.C.M.M., BANGALORE.
xxxxxxxxxxxxxxxxx
ANNEXURE IN C.C.NO: 17562/2013
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri. Abhay Kumar Jain.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque No:088243 dated 2/11/2012 for Rs.12 lakhs.
Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Office copy of demand notice. Ex.P.4 and Ex.P.5 : Two Postal receipts.
Ex.P.6 and Ex.P.7 : Two postal acknowledgements.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Sri. Pankaj.R.Makkanna. D.W.2 : Sri. R. Vicky Kumar.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
- Nil -
XVIII A.C.M.M., BANGALORE.
xxxxxxxxxxxxxxxxx 26 CC.Nos:17561/2013, 17562/2013 and 17568/2013 ANNEXURE IN C.C.NO: 17568/2013
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri. Abhay Kumar Jain.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque No:088241 dated 30/10/2012 for Rs.15 lakhs.
Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Office copy of demand notice. Ex.P.4 and Ex.P.5 : Two Postal receipts.
Ex.P.6 and Ex.P.7 : Two postal acknowledgements.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Sri. Pankaj.R.Makkanna. D.W.2 : Sri. R. Vicky Kumar.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
- Nil -
XVIII A.C.M.M., BANGALORE.27 CC.Nos:17561/2013,
17562/2013 and 17568/2013 (Judgment pronounced in Open Court vide a separate Order) ORDER Acting under Section 255 (1) of Cr.P.C, accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is set at liberty. The bail bond and surety bonds hereby stands discharged.
The original Judgment shall be kept in C.C.No: 17561/2013 and the copy shall form part of the record in C.C.No: 17562/2013 and 17568/2013.
XVIII A.C.M.M., BANGALORE.