Bangalore District Court
Sri H B Arun Gowda vs Sri Ramanjini on 10 July, 2024
KABC030857982021
Presented on : 23-11-2021
Registered on : 23-11-2021
Decided on : 10-07-2024
Duration : 2 years, 7 months, 17 days
IN THE COURT OF XIII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
:: PRESENT ::
SRI. VENKANNA BASAPPA HOSAMANI,
B.Com. LL.B.,(Spl.)
XIII ACJM, BENGALURU CITY.
Dated: This the 10th day of July, 2024
C.C. NO.32530/2021
COMPLAINANT: Sri.H.B.Arun Gowda,
S/o Bylegowda,
Aged about 40 years,
R/a No.66/8, 1st main,
1st cross, Maruthi Nagara,
Vajarahalli, Nelamangala Town,
Bengaluru Rural District-562 123.
(Reptd. by Sri. Bhojaraja,
Advocate)
V/s.
ACCUSED: Sri. Ramanjini,
S/o Jayaramaiah,
Aged about 30 years,
JUDGMENT -2- C.C. 32530/2021
R/a. Lagumenahalli,
Mandur Post,
Bengaluru East Taluk,
Bengaluru - 560 049.
(Reptd. by Sri. H.R. Satyapal
Hegde, Advocate)
Offence Under Section 138 of Negotiable
Instruments Act, 1881.
Plea of the accused Pleaded not guilty
Final order ACQUITTED
*****
:: JUDGMENT ::
This is a private complaint filed by the complainant against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. The factual matrix of the complainant's case are as under;
The complainant and accused are far relatives. The accused approached the complainant in the year 2019 and requested the complainant for financial assistance of Rs.5,00,000/- in order to discharge his urgent debts and also for his financial difficulty. On his request, JUDGMENT -3- C.C. 32530/2021 complainant paid Rs.5,00,000/- to accused by way of cash at his residence on 01.06.2019. The accused agreed to repay the said loan amount within one year from the said date. After lapse of one year the complainant demanded the accused to repay the said amount, but accused expressed his financial difficulty and requested another one year. Hence, the complainant agreed for extension of time. Further in the 1st week of July 2021 the complainant approached the accused and requested to repay the said loan amount. The accused had issued a cheque bearing No.835033 dated 02.08.2021 for Rs.5,00,000/- drawn on State Bank of India, Mandur, Bidarahalli Hobli, Bengaluru East Taluk. On presentation of the said cheque for encashment through his banker, the same was returned unpaid with the Banker's endorsement "Funds Insufficient" on 06.08.2021.
When the same was brought to the notice of accused, the accused requested the complainant to present the said cheque once again for encashment. On presentation of the said cheque, again it was returned with a shara "Signature Differ" on 10.08.2021. But the accused repeatedly JUDGMENT -4- C.C. 32530/2021 requested the complainant to present the said cheque once again, on his request the complainant presented the said cheque for encashment, on its presentation said cheque returned unpaid with shara "Funds Insufficient" on 01.09.2021. The complainant has got issued legal notice through his counsel to the accused on 21.09.2021 calling upon the accused to repay the loan amount within 15 days from the date of receipt of the notice. The said notice was duly served on the accused on 22.09.2021. Inspite of that accused has failed to pay the cheque amount. Hence, the complainant has filed this present complaint.
3. In order to prove the case of the complainant, complainant got examined himself as PW.1 and got marked Ex.P1 to Ex.P7. This court after taking cognizance of the offence issued summons to the accused.
4. Inspite of service of summons, accused not appeared, hence NBW has been issued against the accused, then the accused appeared through his counsel and got enlarged on bail. The sum and substance of the accusation has been read over to the accused and he has JUDGMENT -5- C.C. 32530/2021 denied the same and not pleaded guilty and submitted that he has defence to make.
5. After completion of evidence of the complainant side, statement under section 313 of Cr.P.C. was recorded and the incriminating evidence appearing against the accused is read over and explained to the accused and he has denied the same and he has defence evidence. The accused examined himself as DW1 and got marked Ex.D1 to Ex.D4.
6. Heard the arguments of Sri.BR, advocate for complainant and Sri.SU, advocate for accused. I have carefully examined the materials placed on record.
7. The following points that would arise for my consideration are;
1. Whether the complainant establishes that, the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act?
2. What Order?
JUDGMENT -6- C.C. 32530/2021
8. On perusal of materials placed on record and in the light of Arguments, my findings to the above points are as under:-
Point No.1: In the NEGATIVE
Point No.2: As per final order for the
following;
:: R E A S O N S ::
The objects of Section 138 of N.I. Act:
In the world of business, the cheque, as a negotiable instrument, was losing its credibility because of lack of responsibility on the part of the drawer. To bring back that credibility, to inculcate faith in the efficacy of banking operations in transacting business on negotiable instrument in general to bring the erring drawer to book, so that such irresponsibility is not perpetuated, to protect the honest drawer, to safeguard the payee who is almost a loser, this section was brought on statute. This aspect has been stated in the case of Vinaya Devanna Nayak V/s.
Ryot Sewa Sahakari Bank Ltd., reported in 2008 (2) SCC 305, this decision has been in the case of Bir Singh V/s.
Mukesh Kumar reported in (2019) 4 SCC 197.
JUDGMENT -7- C.C. 32530/2021 The section 138 of the Negotiable Instruments Act, has been enacted to lend credibility to financial transactions, more particularly to negotiable instruments. The main ingredients of the offence under Section 138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 30 days of the receipt of the notice under the proviso (b) to Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
Apart from this, Section 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
JUDGMENT -8- C.C. 32530/2021 The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
Also, Sec. 118 of the Negotiable Instruments Act states;
"Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred for consideration."
9. POINT NO.1:- It is the specific case of the complainant is that, accused had obtained the hand loan of Rs.5,00,000/- on 01.06.2019 agreeing to repay the said amount within one year. For repayment of the said hand loan accused had issued Ex.P.1 cheque, on presentation of the said cheque banker had issued Ex.P.2 to 4 endorsements. Complainant got issued demand notice as per Ex.P.5, inspite of that accused has not paid the cheque amount. Hence, he pray for conviction of the accused.
JUDGMENT -9- C.C. 32530/2021
10. The court can draw the presumption available under Section 139 of the Negotiable Instruments Act in favour of the complainant. The said presumption is rebuttable presumption, if once the complainant has proves initial burden lies on him, the accused ought to have rebut the case of the complainant by adducing or producing cogent, relevant and reliable evidence. If the accused has rebutted the case of the complainant, then the onus is shifts on the complainant, then the complainant has to prove his case independently, same has been held by the Hon'ble Apex court in Rangappa V/s. Mohan AIR 2010 SCC 1898.
11. The accused has to rebut the case of the complainant with preponderance of probabilities, if the accused has rebut the case of the complainant on preponderance of probabilities, then the onus shifts on the complainant to prove his case, the same has been held in the case of Basalingappa V/s. Mudibasappa (2019) 5 SCC
418.
JUDGMENT - 10 - C.C. 32530/2021
12. Admittedly, the complainant has to prove that, he had advanced a sum of Rs.5,00,000/- to the accused on 01.06.2019, for repayment of said loan the accused had issued Ex.P.1 cheque and on presentation of the said cheque same was returned unpaid and Banker issued has issued Ex.P.2 to 4. Inspite of issuance of demand notice as per Ex.P.5 and on receipt of the same, the accused has not paid the cheque amount. Once the complainant has discharged initial burden lies on him the accused has to rebut the same with cogent and relevant evidence. The accused is not duty bound to enter into witness box and give his evidence. But accused is liberty to enter into witness box and depose on his behalf or he can rebut the case of the complainant by effective cross-examination. But in this case accused himself examined as DW1 and got marked documents as Ex.D.1 to Ex.D.4 and denied the entire case of the complainant in his evidence.
13. The counsel for the complainant argued that, complainant has complied the all necessary ingredients of the Section 138 of NI Act, hence accused is liable to be convicted. On the other hand, the counsel for the accused JUDGMENT - 11 - C.C. 32530/2021 argued that, the present complainant was advocate for accused family and he was conducted the cases of accused and his family i.e. O.S. No.1678/2015, O.S. No.1095/2018, FDP No.50/2013 and M.C. No.151/2020. The complainant was not conducted the said cases properly therefore, accused and his family members requested the complainant for return of file and NOC. At that time complainant demanded Rs.10,00,000/- fees, the accused and his father had issued the signed cheques for the purpose of security, further argued that, cheque No.835034 for Rs.5,00,000/- has been encashed and accused had paid Rs.1,00,000/- by way of cash and transferred Rs.4,00,000/- through RTGS to the account of complainant and there is no due from the side of accused, complainant has not returned the signed cheques and misused the same and filed this case and another case i.e. CC No.3155/2022 against the father of accused for getting illegal benefit. Further, he argued that, the question of repayment of cheque amount does not arises, the complainant was earlier advocate for the accused and his family members and he supposed not to do other business except his case and he has violated the provisions of JUDGMENT - 12 - C.C. 32530/2021 Advocates Act. On this count also case of the complainant is not maintainable and pray for acquittal of the accused.
14. The advocate for the complainant has relied the rulings reported in
1. (2021) 5 SCC 283
2. (2020) 12 SCC 724
3. AIR 2019 SC 1876
4. 2022 (3) AKR 381
5. Crl.A. No.1233-1235/2022(SC)
15. The advocate for the accused has relied the rulings reported in
1. (2018) 1 SCC 638
2. (2019) 5 SCC 418
3. (2015) 1 SCC 99
16. Let me see how the complainant has proved his case and is accused has rebutted the case of the complainant.
17. The complainant in his demand notice, complaint and examination-in-chief filed by way of affidavit stated JUDGMENT - 13 - C.C. 32530/2021 that, in the year 2018 accused approached and requested him for financial assistance of Rs.5,00,000/- and he has paid Rs.5,00,000/- by way of cash at his residence on 01.06.2019 and accused agreed to repay the same within one year from the said date and accused has not paid the said amount after completion of one year and requested for extension of time and he extended one more year for repayment of the said loan.
18. At this stage I intend to quote the relevant portion of deposition of PW1, same is culled out and runs thus:
"ಆರೋಪಿ 2019 ರಲ್ಲಿ ನನಗೆ 14 ಲಕ್ಷ ಸಾಲ ಕೇಳಿದ್ದ. ನಾನು ಆತನಿಗೆ ಜೂನ್ 2019 ರಲ್ಲಿ 14 ಲಕ್ಷ ಸಾಲ ನೀಡಿದ್ದೆ. ಅದರಲ್ಲಿ ರೂ.9 ಲಕ್ಷ ಹಣ ಮರುಪಾವತಿ ಮಾಡಿದ್ದಾನೆ. ಸಾಲ ನೀಡಿದ ನಿರ್ದಿಷ್ಟ ದಿನಾಂಕ ನೆನಪಿಲ್ಲ. ........... ಹಣ ಪಡೆದ ಬಗ್ಗೆ ದಾಖಲೆ ಪಡೆದುಕೊಂಡಿಲ್ಲ. ...........
ನನ್ನ ದೂರು, ನನ್ನ ನೋಟೀಸ್, ಮುಖ್ಯ ವಿಚಾರಣೆ ಪ್ರಮಾಣಪತ್ರದಲ್ಲಿ 14 ಲಕ್ಷ ಸಾಲ ಕೊಟ್ಟ ಬಗ್ಗೆ ಹೇಳಿಲ್ಲ ಅಂದರೆ ಸರಿ."
19. The above culled out deposition of PW1 discloses that, during the year 2019 accused approached him and JUDGMENT - 14 - C.C. 32530/2021 requested for financial assistance of Rs.14,00,000/-. If really, accused had requested the complainant for hand loan a sum of Rs.14,00,000/-, he ought to have mention the same in his demand notice, complaint as well as examination-in-chief. If really the complainant had advanced Rs.14,00,000/- loan, he ought to have deposed the date of loan. The complainant is not an ordinary person, he is practicing advocate and he knows the consequences of loan transaction and further he know the procedure for loan transaction. Inspite of that, the complainant has not followed the proper procedure for advancing the loan to his client. In the cross-examination PW1 deposed that, he has advanced Rs.14,00,000/- loan by way of cash i.e. face value of Rs.500/- currency notes. The said facts has to be proved by the complainant with cogent, relevant and reliable evidence. The complainant has not furnished any document to show that he has advanced Rs.19,00,000/- loan to the accused as deposed by the him. Except oral evidence there is no material to believe the version of complainant.
20. As per the complainant he has advanced the loan agreeing to give the time one year and again extended one JUDGMENT - 15 - C.C. 32530/2021 more year for repayment of debt. No where in the complaint, the complainant has stated that he has advanced the loan for interest. Without charging the interest complainant has advanced the loan as per his version. But no ordinary prudent man has advance the huge amount of Rs.19,00,000/- without interest that too for a period of more than two years. If accused had failed to repay the said amount within the prescribed time, the complainant ought to have get it in writing, but in the case on hand, the complainant has not taken any steps to reduce the same in writing for the reasons best known to him. Therefore, the contention taken by the complainant is difficult to accept. No ordinary prudent man without any documents or without interest has lend the money of Rs.19,00,000/- that too by way of cash and not means of A/c Payee cheque or other online mode payment.
21. The complainant deposed in his evidence that, he had income during the year 2019-20 and 2020-21 of Rs.20,00,000/- including agricultural income and he has further deposed that, he is not a Income tax payee. But complainant has not furnished any document to show JUDGMENT - 16 - C.C. 32530/2021 that, he had income of Rs.20,00,000/- in the year 2019-20 and 2020-21 for the reasons best known to him. The complainant has not also given particulars of how much income he has earned by agriculture and how much income he has earned through his profession. The person who is having huge income, he ought to have filed the Income Tax Return, but being the advocate the complainant has not paid the income tax or not filed the Income Tax Returns for the reasons best known to him. Hence, this fact also creates the doubt in the mind of court that, is really complainant was having huge source of income to lend the huge money by way of cash.
22. The accused has taken defence of the complainant was not having huge source of income to lend the huge money as stated by him and further he has taken contention that, there is no occasion for the accused to borrow the amount from the complainant as himself having huge source of income. When the accused has taken the defence of complainant was not having huge source of income to advance the huge amount, in such circumstances the complainant ought to have prove his JUDGMENT - 17 - C.C. 32530/2021 source of income and on the other hand he has to prove that, accused was in need of money at that point of time. At this stage I intend to quote the relevant evidence of PW1, which is culled out and runs thus:
"ಆರೋಪಿ ಹಾಗೂ ಆತನ ತಂದೆ ಇಬ್ಬರು ಆರ್ಥಿಕವಾಗಿ ಬಲಿಷ್ಠರಾಗಿದ್ದಾರೆಂದರೆ ಸರಿ. ಕಂಪನಿಗೆ ಲಾರಿಗಳನ್ನು ಬಿಡಲು ಹಾಗೂ ಲಾರಿ ಖರೀದಿಸಲು ಹಣಕಾಸಿನ ಸಹಾಯ ಕೋರಿ ನನ್ನ ಬಳಿ ಸಾಲ ಪಡೆದಿದ್ದಾರೆ. ಈ ವಿಷಯವನ್ನು ಡಿಮ್ಯಾಂಡ್ ನೋಟೀಸ್ ನಲ್ಲಿ ಮತ್ತು ದೂರಿನಲ್ಲಿ ಹೇಳಿಲ್ಲ ಅಂದರೆ ಸರಿ. ಕಂಪನಿಗೆ ಲಾರಿಗಳನ್ನು ಬಿಡಲು ಹಾಗೂ ಲಾರಿ ಖರೀದಿಸಲು ಹಣಕಾಸಿನ ಸಹಾಯ ಕೋರಿ ನನ್ನ ಬಳಿ ಸಾಲ ಪಡೆದಿದ್ದಾರೆ ಅಂತ ಡಿಮ್ಯಾಂಡ್ ನೋಟೀಸ್ ನಲ್ಲಿ ಮತ್ತು ದೂರಿನಲ್ಲಿ ಬರೆಯಲು ತೊಂದರೆ ಇರಲಿಲ್ಲ ಎಂದರೆ ಸರಿ.
...... ಆರೋಪಿ ಮತ್ತು ಆತನ ತಂದೆ ಆರ್ಥಿಕವಾಗಿ ಬಲಿಷ್ಠರಾಗಿದ್ದು, ನನ್ನ ಬಳಿ ಸಾಲ ಪಡೆಯುವ ದರ್ದು ಅವರಿಗೆ ಇರಲಿಲ್ಲ ಎಂದರೆ ಗೊತ್ತಿಲ್ಲ. ನಾನು ಬೇರೆಯವರಿಗೆ ಸಾಲ ಕೊಡುವಷ್ಟು ಆರ್ಥಿಕವಾಗಿ ಸಬಲನಾಗಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ."
(Underlined by me)
23. During the course of cross-examination PW1 admitted that, accused and his father were financially sound. This admission itself is shows that, the accused and his father are having huge source of income and both are financially strong. The PW1 further deposed that, they JUDGMENT - 18 - C.C. 32530/2021 have obtained the loan for the purpose of purchasing the lorry but same has been not stated in the demand notice as well as complaint. If really the accused had obtained the loan for purchase of lorry, the complainant ought to have state the said facts in his demand notice, complaint and examination-in-chief filed by way of affidavit. The above quoted evidence of PW1 shows that, the complainant is trying to patch up the lacunaes of his case. Hence, the evidence of complainant is creates the doubt in the mind of court that, is really he has advanced the money for purchase of lorry, the person who is financially strong. If really accused was in dare need of money, the complainant ought to have deny the suggestion put by accused counsel. But he deposed that, he do not know that whether accused had in need of money to take loan from him.
24. The another defence of the accused is that, the complainant was conducted the cases of their family and for return of filed NOC complainant had demanded Rs.10,00,000/- and received the cheque for giving NOC. But the complainant has denied the said facts but in his cross-examination he has admitted some suggestions put JUDGMENT - 19 - C.C. 32530/2021 by the accused. Relevant portion of cross-examination of PW1 is culled out and runs thus:
"ಆರೋಪಿಯ ಕುಟುಂಬಕ್ಕೆ ಸಂಬಂಧಪಟ್ಟ ಸಿವಿಲ್ ಕೇಸುಗಳನ್ನು ನಾನು ನಡೆಸಿಲ್ಲ. ನಾನು ಈ ಮಾತನ್ನು ಸುಳ್ಳು ಹೇಳುತ್ತಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಾನು ಆರೋಪಿಯ ಹೆಂಡತಿಯ ಪರವಾಗಿ ಸಿವಿಲ್ ಕೇಸಲ್ಲಿ ವಕಾಲತ್ತನ್ನು ಹಾಕಿದ್ದೇನೆ. ಸಾಕ್ಷಿ ಆರೋಪಿಯ ತಾಯಿಯ ಪರವಾಗಿ ವಕಾಲತನ್ನು ಹಾಕಿದ್ದೆ, .......... ಆರೋಪಿ ನಮ್ಮ ಕಕ್ಷಿದಾರ, ನಾನು ಅವರ ವಕೀಲ ಆಗಿದ್ದೆ ಅಂದರೆ ಸರಿ. ........ ಎಫ್.ಡಿ.ಪಿ. 50/2013 ರಲ್ಲಿ ನಾನು no objection ಕೊಟ್ಟಿದ್ದೆ ಎಂದರೆ ಸರಿ "
25. The above quoted deposition of PW1 is crystal clear that, complainant was an advocate for accused family and he was conducted the civil cases of the accused family and given the no objections on particular point of time. Such being the case, the complainant has to deny to advance the loan to the accused and his father. When there is a relation of complainant and accused was advocate and client, the complainant ought to have follow the procedure known to law and more particularly Advocates Act. But the counsel for the complainant argued that, at the time of advancing the loan amount, the complainant was not the advocate of the accused family JUDGMENT - 20 - C.C. 32530/2021 and already he had given the NOC. At this stage, I intend to quote the relevant portion of evidence of PW1 which is culled out and runs thus:
" ಮೂರು ಚೆಕ್ಕುಗಳನ್ನು ಪಡೆದ ನಂತರ ದಿಃ28.07.2021 ರಂದು ರೂ.5 ಲಕ್ಷ ಹಣ ಈಗಲೇ ಕೊಟ್ಟರೆ ಎನ್.ಒ.ಸಿ. ಕೊಡುತ್ತೇನೆ ಉಳಿದ ಹಣವನ್ನು 2 ತಿಂಗಳ ನಂತರ ಕೊಡಿ ಅಂತ ಕೇಳಿದ್ದೆ ಅಂದರೆ ಸರಿಯಲ್ಲ. ಆರೋಪಿ ನೀಡಿದ ಚೆಕ್ ನಂ.835034 ದಿಃ28.07.2021 ರಂದು ಮಾನ್ಯಗೊಂಡು ನನ್ನ ಖಾತೆಗೆ ರೂ.5 ಲಕ್ಷ ಹಣ ಬಂದಿದೆ ಅಂದರೆ ಸರಿ. .............. ದಿಃ28.07.2021 ರಂದು ನನ್ನ ಖಾತೆಗೆ ರೂ.5 ಲಕ್ಷ ಹಣ ಬಂದ ನಂತರ ದಿಃ29.07.2021 ರಂದು ನಾನು ಅವರಿಗೆ ಎನ್.ಒ.ಸಿ. ಕೊಟ್ಟಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ.
26. The above culled out deposition of PW1 discloses that, on 28.07.2021 cheque issued by the accused bearing No.835034 for Rs.5,00,000/- has been encashed. Further discloses that, PW1 denies that, after receipt of Rs.5,00,000/- on 28.07.2021 complainant had issued the NOC. But the above quoted evidence i.e. admissions given by the complainant itself shows that on 28.07.2021 Rs.5,00,000/- cheque has been encashed and credited to his account. The Ex.D.3 certified copy of the vakalath filed by the present complainant in FDP No.50/2013 in the court of 1st Addl. Senior Civil Judge at Bengaluru Rural JUDGMENT - 21 - C.C. 32530/2021 District is discloses that, on 29.07.2021 the present complainant H.B.Arun Gowda had issued the no objections. On the basis of above culled out evidence of PW1 and Ex.D3 it can be held that, after receipt of Rs.5,00,000/- the complainant had issued the NOC vakalath. Hence, the defence taken by the accused i.e. as per the demand made by the complainant they have paid Rs.5,00,000/- though cheque to the complainant on 28.07.2021 and after receipt of the same NOC has been issued by complainant on 29.07.2021. Hence, there is high preponderance of probability that the contention of accused is true.
27. The counsel for the complainant argued that, as the date of loan transaction there was no relationship of advocate and client between complainant and accused, but in complaint itself, complainant stated that, he had advanced Rs.5,00,000/- on 01.06.2019 but Ex.D.1 discloses that, after receipt of Rs.5,00,000/- cheque i.e. on 29.07.2021 complainant had issued NOC. This fact itself is sufficient to hold that, the contention taken by the advocate for the complainant is totally far away from the truth.
JUDGMENT - 22 - C.C. 32530/2021
28. At this stage, I intend to quote the relevant portion of deposition of PW1 which is culled out and runs thus:
"ದಿಃ14.06.2019 ರಂದು ಆರೋಪಿಗೆ ರೂ.14 ಲಕ್ಷ ಸಾಲ ನೀಡುವ ಮೊದಲೇ ಮೇ 2019 ರಲ್ಲಿ ಅರೋಪಿ ತಂದೆಗೆ ರೂ.5 ಲಕ್ಷ ಸಾಲ ಕೊಟ್ಟಿದ್ದೇನೆ. ಸಾಕ್ಷಿ ಮತ್ತೆ ಹೇಳುತ್ತಾರೆ ಮೇ 2020. ............
ಆರೋಪಿ ರೂ.14 ಲಕ್ಷ ಸಾಲ ತೀರುವಳಿ ಮಾಡಿಲ್ಲ ಮತ್ತು ಅದಾದ ಒಂದೂವರೆ ವರ್ಷದ ನಂತರ ಆರೋಪಿ ತಂದೆಗೆ 5 ಲಕ್ಷ ಸಾಲ ಕೊಡುವಾಗ ನಾನು ದಾಖಲೆ ಮಾಡಿಕೊಂಡಿಲ್ಲ ................. ಮಗನ ಹಳೆಯ ಸಾಲ ತೀರುವಳಿಯಾಗದೇ ತಂದೆಗೆ ಸಾಲ ಕೊಡುವ ಪೂರ್ವದಲ್ಲಿ ಆರೋಪಿಯಿಂದ ಬಡ್ಡಿ ಪಡೆದಿದ್ದೀರ ಅಂದರೆ ಸಾಕ್ಷಿ ಇಲ್ಲ ಅಂತ ಹೇಳುತ್ತಾರೆ."
29. On the basis of above culled out deposition of PW1 it is crystal clear that, the complainant has advanced the loan of Rs.5,00000/- to the accused father before clearance of Rs.14 Lakhs loan obtained by the accused 1 ½ year back. No ordinary prudent man can advance the huge amount of Rs.5,00,000/- to the person, whose family member had not repaid the earlier huge loan of Rs.14,00,000/- that too by way of cash without obtaining any documents and interest. This fact is also creates the JUDGMENT - 23 - C.C. 32530/2021 doubt in the mind of this court that, is really complainant advanced Rs.5,00,000/- to the father of accused inspite of non repayment of loan obtained by the son.
30. I have taken above view with support of judgment of Hon'ble High Court of Karnataka in the case of Shiva Murthy Vs. Amruthraj, reported in ILR 2008 KAR 4629, wherein it has been held that, no prudent man would lend substantial amount without charging interest and the provisions of Section 269-SS of the Income Tax Act had not been followed. Therefore, in the instant case, I declined to accept the case of the complainant with regard to the loan transaction. In the instant case, the amount involved is Rs.5,00,000/- and even in this case also, there is no evidence of the complainant that the said amount was given as loan by charging interest. It is, therefore, difficult to accept the complainant's case that he lent Rs.5,00,000/- without charging any interest and that too the said amount in cash and not by means of any account payee cheque. For all these reasons, the contention of the learned Counsel for the accused that the complainant had no JUDGMENT - 24 - C.C. 32530/2021 capacity to advance Rs.14,00,000/- to the accused and Rs.5,00,000/- to the accused father has to be accepted.
31. The counsel for the accused take defence of, they have paid Rs.10,00,000/- to the complainant as agreed by them while taking the NOC from the complainant. The complainant also admitted that, he had obtained Rs.5,00,000/- through cheque No.835034 and Rs.4,00,000/- through RTGS by the accused through SBI, Mandur Branch. But as per the accused they have paid Rs.1,00,000/- by way of cash but complainant has denied the same. Hence, I am of the opinion that, the accused and his father had paid Rs.9,00,000/- to the complainant for obtaining the NOC from the complainant. Hence, there is a preponderance of probability is that after encashment of cheque bearing NO.835034 on 28.07.2021, the complainant had issued Ex.D.3 NOC vakalath to the accused family and the entire evidence of complainant is not inspire the confidence of this court that, the accused had issued the Ex.P1 cheque for repayment of the legally enforceable debt or liability. Only on the basis of cheque is JUDGMENT - 25 - C.C. 32530/2021 belong to the accused and signature put on the cheque is belongs to the accused is not good ground to convict the accused. PW1 in his cross-examination dated 08.01.2024 deposed that, he himself has filled the cheque. This fact itself is shows that, the complainant has filled the cheque and presented the same before the Bank and get bounced, not single time, thrice.
32. In (2015) 1 SCC 99, K.Subramani Vs. Dhamodara Naidu, Hon'ble Apex Court held that, legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to the accused. The presumption in favour of holder of cheque stood rebutted. In the present case on hand also the complainant has failed to prove his source of income to lend the huge amount of Rs.19,00,000/- to the accused without interest.
33. No prudent man believe that a person who is not filing Income Tax Returns was / is having huge income of Rs.15 to 20 Lakhs per annum and advanced the huge amount of Rs.19,00,000/- without obtaining any JUDGMENT - 26 - C.C. 32530/2021 documentary evidence and without imposing interest. The Hon'ble High Court of Karnataka in ruling reported in 2024 (1) KCCR 166 in the case of S.P.Rajakumar Vs. M.J.Prabhakara held that, without production of bank statement or IT return averments made in the complaint is not acceptable one. When the financial capacity to pay the amount was questioned, the complainant has to give the satisfactory explanation to prove the said fact. But in the case on hand the complainant has not furnished his bank statement or got examined other witnesses who were present at the time of issuance of disputed cheques by the accused or he has not given proper explanation to establish that he was having sufficient source of income to lend the huge amount of Rs.19,00,000/- to the accused and his father.
34. In the case of (2009) 2 SCC 513 - Kumar Exports V/s. Sharma Carpets the Hon'ble Apex Court held that, the accused in a trial under Section 138 of NI Act has two options. He can either show that consideration and debt did not exist or that under JUDGMENT - 27 - C.C. 32530/2021 particular circumstances of the case the non existence of consideration and debt is so probable that the prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption accused is not expected to prove his defence beyond reasonable doubt as is expected complainant in criminal trial. In the present case on hand, on perusal of the entire evidence of the complainant it is so probable that there is no existence of debt or liability and accused is liable to pay cheque amount.
35. Though the learned counsel for the complainant contended that, the complainant has fulfilled all the requirements u/s.138 of NI Act and accused has not disputed the cheque as well as signature on it, the legal presumption exists in favour of complainant in respect of enforceable debt is concerned, the same does not holds much water, for the reason that such initial presumption is rebuttable in nature at any stage of proceedings. In view of the law laid down by Hon'ble Apex Court in catena of judgments including Rangappa Vs. Mohan reported in (2010) 11 CC 441. The accused can rebut such JUDGMENT - 28 - C.C. 32530/2021 presumption by way of probable defence. In the case on hand and careful perusal of the evidence, the accused rebutted the initial presumption by way of probable defence that, the cheques in question were issued under compulsion while obtaining the NOC from the complainant. It is well settled law that, to rebut the presumption, standard of proof is that only on touch stone of preponderance of probabilities and not on the touch stone of proof beyond all reasonable doubt. The accused has put forward such a probable defence, as such it creates doubt about the existence of legally enforceable debt or liability. Therefore, I am of the opinion that, ruling relied by the advocate for complainant are not helps the complainant to convict the accused. On the other hand, ratio laid down in the ruling relied by the advocate for accused are applicable to the present case on hand. In overall the complainant has failed to prove that, he has entitle for entire cheque amount. Hence, the complainant is not entitled for benefit available under Section 118 and 139 of Negotiable Instrument Act, 1881. Accordingly, I answer Point No.1 in the NEGATIVE.
JUDGMENT - 29 - C.C. 32530/2021
36. POINT NO.2:- In view of the above discussion accused is not found guilty. Accordingly, I proceed to pass the following;
ORDER Acting under Section 255(1) of Cr.P.C, the accused is acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
Bail bond and surety bond of the accused will be stand cancelled after completion of Six months from today.
(Directly dictated to the Stenographer, on computer, computerized by her, corrected and then pronounced in open court by me on this the 10th day of July, 2024) (VENKANNA BASAPPA HOSAMANI) XIII ACJM, BENGALURU CITY.
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Sri. H.B.Arun Gowda Documents marked on behalf of the complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of the accused Ex.P2 to 4 : Bank Endorsements Ex.P5 : Office copy of Legal Notice JUDGMENT - 30 - C.C. 32530/2021 Ex.P6 : Postal receipt Ex.P7 : Postal acknowledgment
Witnesses examined on behalf of the accused:
DW.1 : Ramanjini J.
Documents marked on behalf of the accused:
Ex.D1 & 2 : Certified copies of vakalaths of complainant Ex.D3 : Certified copy of NOC vakalath of complainant Ex.D4 : Bank account statement of accused Digitally signed by VENKANNA VENKANNA B HOSAMANI B Date:
HOSAMANI 2024.07.11 13:46:19 +0530 XIII ACJM, Bengaluru City.