Bangalore District Court
Sri.Hemanth Kumar vs A.Krishna Murthy on 20 July, 2018
1 C.C.No.3468/2015 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 20thday of July, 2018
Present:- Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.CMM., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.3468/2015
Complainant : Sri.Hemanth Kumar,
S/o. Late. Raghunath,
Aged about 34 years,
R/at No.47, Srinivasa Colony,
Next to Sai Baba Temple,
Arehalli,
Subramanyapura,
Bengaluru.
(Rep.by Sri.B & S. Associates,
Advs.,)
- Vs -
Accused : A.Krishna Murthy,
S/o. Anjinappa,
Aged about 29 years,
R/at No.141, 22nd Main Road,
Chikkallasandra Main Road,
Padmanabhanagar,
2nd Stage,
Bengaluru.
And also at :
A.Krishnamurthy,
C/o. Maths Academy,
No.206, Venkatesh Dass Road,
Padmanabhanagar,
Bengaluru -560 017.
(Rep.by Sri.Pallava.R, Adv.,)
2 C.C.No.3468/2015 J
Case instituted : 18.12.2014
Offence complained : U/s s138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 20.7.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused had taken financial assistance on 22.1.2014 to the extent of Rs.5 Lakhs from him and agreed to pay interest of Rs.2 % per month. At the time of receiving the amount, the Accused had assured him that the same would be returned in the month of October 2014. In the month of October 2014, when he approached the Accused and demanded the amount, to discharge the liability, the Accused had issued a cheque bearing No.070854 dated 30.10.2014 for Rs.5 Lakhs drawn on the IDBI Bank, Banashanakari, Bangalore and assured that the same would be duly honored on its presentation.
3. The Complainant has submitted that when he presented the said cheque for encashment through his 3 C.C.No.3468/2015 J banker, the same came to be returned dishonored as "Account Closed" vide Bank Endorsement dated: 31.10.2014.
4. The Complainant has submitted that, thereafter left with no other option, he got issued a legal notice to the Accused on 10.11.2014 calling upon him to pay the cheque amount to him within 15 days from the date of the receipt of the said legal notice and despite the service of the same, he has neither replied nor has he paid the cheque amount to him. Hence the present Complaint.
5. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that he be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
6. In his pre-summoning evidence, the Complainant has examined as C.W.1 and he has filed his affidavit-in-lieu of his Sworn-Statement, in which, he has reiterated the complaint averments.
7. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
4 C.C.No.3468/2015 J8. The Accused has appeared before the court on 30.12.2015. He has been enlarged on bail. The substance of the accusation has been read over and explained to him, to which, he has pleaded not guilty and has stated that he has his defence to make.
9. In his post-summoning evidence stage, the Complainant is examined as P.W.1 and he has filed his affidavit, in which, he has reiterated the complaint averments.
10. In support of this evidence, P.W.1 has produced and relied upon the following additional documentary evidence as per Ex.P1 to P9 which is as follows:-
The Original Cheque dated: 30.10.2014 as per Ex.P.1, the signature on the said cheque identified by C.W.1 as that of the Accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, the two Postal Receipts as per Ex.P.4 & P.5 respectively, the returned Legal Notice as per Ex.P.6, the Postal Envelope as per Ex.P.7, the Postal Receipt as per Ex.P.8 and the Postal Acknowledgement as per Ex.P.9.
11. It is seen that, P.W.1 has been cross-examined partly by the learned Defence Counsel and thereafter though he was ready to further cross-examine him, for the reasons 5 C.C.No.3468/2015 J known to him, P.W.1 has failed to tender for his complete cross-examination.
12. The statement of the Accused u/Sec.313 of Cr.P.C. has been recorded. He has denied incriminating evidence found against him and has chosen to lead his evidence.
13. The Accused is examined as D.W.1 and he has filed his evidence affidavit, which is accepted by this court, as per the direction of our Hon'ble High Court in Afzal Pasha V/s. Mohamed Ameer Jan, reported in LAWS (KAR) 2016 (8) 131, in which, the acceptance of the affidavit of the Accused is permitted by our Hon'ble High Court in accordance with the direction of the Hon'ble Apex Court in the case of the Indian Bank Association Vs., Union of India, reported in (2014) 4 SCC
590.
14. The gist of the defence of the Accused in his affidavit is that, the Complainant has filed this false case against him and that he had no financial transaction with the Complainant of whatsoever nature much less the transaction in question.
15. According to D.W.1, he had the financial transaction with one Kiran Kumar @ Ravi Kiran who was his classmate and he had borrowed loan from him in the year 2013-14 for his personal needs, for which, he had issued his three signed blank cheques, including the cheque in dispute 6 C.C.No.3468/2015 J as a security for the said loan. The said Kiran Kumar has misused the said cheques given to him to enrich himself and he got filed three false cases against him before this court. one case was filed at the instance of one Sri.Mohan Kumar which was dismissed for non-prosecution by this court and another case was filed by Kiran Kumar which was also dismissed for non-prosecution and this is the third case got filed by Kiran Kumar at the instance of the present Complainant, who is not directly known to him.
16. It is further alleged by D.W.1 that, the Complainant had no source of income to have lent him a loan of Rs.5 Lakhs as claimed in this case. There is no service of the legal notice on him. Accordingly he has prayed for his acquittal.
17. In support of his evidence, D.W.1 has produced and relied upon the following documentary evidence:-
Ex.D1 is the Cheque Record Slip pertaining to his IDBI Bank Account and Ex.D1(a) is the relevant entry in Ex.D1.
18. However it is seen that, as D.W.1 failed to tender for his cross-examination, his evidence has been discarded by this court.
19. The learned counsel for the Complainant has addressed his arguments during the course of which he has prayed for the conviction of the Accused on the ground that 7 C.C.No.3468/2015 J the Accused has admitted that the cheque in dispute belongs to him and it bears his signature and that he has issued the same to the Complainant.
20. It is also argued that, the Accused has failed to probablise his defence and as such the Complainant is entitled to the benefit of the presumptions available under Sec.118 and 139 of the N.I.Act. Accordingly he has prayed for the conviction of the Accused.
21. Per contra, the learned Defence Counsel has addressed his arguments, during course of which, he has prayed for the acquittal of the Accused on the ground that the entire case of the Complainant is shrouded with suspicion, since the Complainant has failed to prove his case and he has not tendered for his complete cross-examination and there is no legally enforceable debt. There is no service of the legal notice on the Accused and the evidence of the Accused is discarded and as such the Accused deserves to be acquitted. Hence on these grounds, he has prayed for the acquittal of the Accused.
22. I have considered the submissions and perused the record carefully.
23. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
8 C.C.No.3468/2015 J(i) Drawing up of a cheque by the Accused towards the 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 15 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.
24. Apart from this, Sec.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:-
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".
25. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
9 C.C.No.3468/2015 J(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, was accepted, indorsed, negotiated or transferred for consideration."
26. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
27. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
28. It is a well settled position of law that, the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
29. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the 10 C.C.No.3468/2015 J Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
30. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
31. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
32. It is pertinent to note that, there is no dispute between the parties with regard to the fact, they are well acquainted with each other and that the cheque in dispute belongs to the Accused with his signature on it and that he has issued the same in favour of the Complainant. However there is a serious dispute with regard to the alleged liability 11 C.C.No.3468/2015 J of the Accused under the subject cheque as claimed by the Complainant in this case.
33. No doubt, the moment the Accused admits his signature on the cheque and it's issuance in favour of the Complainant, the presumptions u/Sec.118 and 139 of the N.I.Act are to be raised in favor of the latter.
34. However before raising the said presumptions in favour of the Complainant, it is necessary for him to prove the existence of the legally payable debt by the Accused in his favour, when the same is seriously contested by the Accused in a case.
35. Keeping in mind, the aforesaid well settled position of law, it could be seen that, even in the present case, the Accused has denied his alleged loan transaction with the Complainant. In this regard, though the Complainant has produced the documentary evidence as per Ex.P1 to P10, it could be seen that, except the subject cheque, there is no other documentary proof in support of the case of the Complainant.
36. Moreover the Complainant has claimed that, though he is working in a Software company, as on the date of the transaction in question he was getting a monthly salary of Rs.30,000/= and according to him, the source of funds so as to have lent the loan to the Accused was by having sold his 12 C.C.No.3468/2015 J site 2 to 3 months prior to the date of his alleged lending of the loan to the Accused. According to P.W.1, he had sold his site for Rs.22 Lakhs.
37. It is interesting to note that, though according to P.W.1, his main source of funds to the tune of Rs.11 Lakhs was through part of the sale proceeds of his site, which he claims was paid to him by way of DD, he has failed to produce the relevant documents before this court. Therefore when the Complainant had the opportunity to produce the cogent and reliable proof to prove his source of funds and he has failed to produce the same, an adverse inference is liable to be drawn against him in this regard as per Sec.114 (g) of the Evidence Act.
38. Moreover the Complainant has also claimed that, he has lent Rs.5 Lakhs to the Accused by way of cash and he has not got executed any document from the Accused in respect of his lending and that he has not got executed any document from the Accused in respect of his alleged agreement to pay 2 % interest per month. Moreover he has also claimed that there is no witness to his alleged lending of Rs.5 Lakhs to the Accused.
39. The aforesaid facts deposed by the Complainant in his cross-examination clearly raise serious doubts in his case, since it is hard to believe that the Complainant would 13 C.C.No.3468/2015 J have ventured to lend a huge loan of Rs.5 Lakhs to the Accused, without collecting any security documents from him. Moreover it is not the case of the Complainant that, the Accused had issued the subject cheque to him while availing the loan from him. In such circumstance, it cannot be believed that, the Complainant would have lent Rs.5 Lakhs to the Accused without having any security for its repayment.
40. No doubt, the defence of the Accused is that, he had issued the subject cheque as a signed blank cheque to his friend Pradeep Kumar, through whom the subject cheque is alleged to have reached the Complainant herein and who in turn has misused the same. Though there is no proof regarding this defence version, the fact that the Complainant himself has failed to tender for his cross-examination, an adverse inference is liable to be drawn against him in this regard.
41. It could be seen that, though the Accused had led his chief evidence by having filed his affidavit and had also relied upon the documentary evidence as per Ex.D1 and D1
(a), his evidence has also been discarded by this court, as he failed to tender for his cross-examination.
42. Moreover, it could be seen that, though the learned Defence Counsel was ready to further cross-examine the Complainant in the light of the defence of the Accused, for 14 C.C.No.3468/2015 J the reasons best known to him, the Complainant remained continuously absent and thereby failed to tender for his further cross-examination. As a result, an adverse inference is liable to be drawn against him.
43. Interestingly, though there is no satisfactory explanation offered by the Accused in respect of his cheque, being in the custody of the Complainant, there is no necessity to doubt the defence of the Accused in this regard, since there is a serious lapse on the part of the Complainant to prove his case beyond reasonable doubt.
44. Therefore, viewed from any angle, I have no hesitation to hold that, the entire case of the Complainant suffers from serious doubts and it is shrouded with serious suspicion.
45. Therefore, the appreciation of the entire evidence on record clearly goes to show that, the Complainant has miserably failed to prove his case beyond the reasonable doubt and on the contrary, the Accused has successfully rebutted the presumptions available in favor of the Complainant U/s.118 and 139 of the N.I.Act by pointing out the serious doubtful circumstances in the case of the Complainant and as such, the benefit of the said doubt needs to be given to the Accused. Accordingly, I proceed to pass the following:-
15 C.C.No.3468/2015 JORDER By exercising the power-conferred u/s 255(1) of Cr.P.C., the Accused is herby acquitted of the offence punishable u/s 138 of Negotiable Instruments Act.
His bail bond stands discharged.
The cash security of Rs.3,000/= deposited by the Accused vide order dated 30.12.2015 is ordered to be refunded to him (if not forfeited or lapsed) after the expiry of the appeal period. (Dictated to the Stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 20th day of July, 2018).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.Hemanth Kumar;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original cheque; Ex.P-1(a) : Signature of the Accused; Ex.P-2 : Bank Memo; Ex.P-3 : The office copy of the Legal Notice; Ex.P-4 & 5 : Postal Receipts; Ex.P-6 : Returned Legal Notice; Ex.P-7 : Postal Envelope; Ex.P.8 : Postal Receipt; Ex.P.9 : Postal Acknowledgment.
3. List of witness/s examined on behalf of the Accused:-
(Evidence is Discarded):-16 C.C.No.3468/2015 J
DW.1 : A.Krishnamurthy
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : Original Cheque Record Slip;
Ex.D.1(a) : Relevant Entry;
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.
17 C.C.No.3468/2015 J
20.7.2018 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power-conferred u/s 255(1) of Cr.P.C., the Accused is herby acquitted of the offence punishable u/s 138 of Negotiable Instruments Act.
His bail bond stands discharged.
The cash security of Rs.3,000/= deposited by the Accused vide order dated 30.12.2015 is ordered to be refunded to him (if not forfeited or lapsed) after the expiry of the appeal period.
XVI ACMM, B'luru.