Bangalore District Court
Sri.Vishwanatha.G.G vs Sri.M.S. Dilip Kumar on 14 February, 2020
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
Dated this the 14th day of February 2020
PRESENT: KALPANA.M.S.,
B.Sc., LL.M.,
XX ADDL. C.M.M.
Bengaluru.
C.C.No.13444/2013
Complainant : Sri.Vishwanatha.G.G.
S/o Govinde Gowda,
Aged about 48 years,
C/o.Poonga Vonam Carpenter,
Proprietor of Nagashree Painting,
Works, No.56, 9th Cross,
Lakshmipuram,
Bengaluru - 560 008.
Vs.
Accused : Sri.M.S. Dilip Kumar,
S/o.M.P.Sudhakara,
Aged about 29 years,
Work at, ' Swadista Family Restaurant',
Multi Cuisione and Andra Style,
No.56/A, 1st Main,
Lower Palace Orchards,
Bhasyam Circle,
Near Petrol Bunk,
Vyalikaval,
Bengaluru - 560 003.
2 C.C.13444/2013
And also,
R/at,Madhugere, Andagere Village,
Muthuru Hobli,
Hosagrahara Post,
Thirtahalli Taluk,
Shimoga District,
Pin - 577 415.
Offence complied of : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of Order : 14-02-2020
JUDGMENT
The complainant has filed this complaint under section 200 of code of criminal procedure read with section 138 of the Negotiable Instruments Act ( in short referred as "N.I. Act") against the accused alleging that, he has committed the offence.
3 C.C.13444/2013
02. The sum and substance of the complaint, is as follows;
The accused is known to the complainant. On 12.03.2013, the accused had obtained hand loan of Rs.3,00,000/- from the complainant for his commitments and agreed to repay the same within one week and issued a cheque bearing No.341414 dated 20.03.2013 for Rs.3,00,000/-, drawn on Karnataka Bank Ltd., E.C.M.M. Court, Bengaluru. Complainant presented the said cheque for encashment through his banker i.e., Canara Bank, Ulsoor Branch, Bengaluru on 20.03.2013 and the said cheque returned with an endorsement "Account Closed", dated 22.03.2013. Thereafter, complainant got issued legal notice on 16.04.2013 to accused. The notice was duly served to the accused on 17.04.2013. Accused has not complied the notice. It is contended that, accused intentionally not maintained sufficient amount in his bank account to honour the cheque issued in favour of the complainant towards discharge of 4 C.C.13444/2013 legally enforceable debt. On these allegations, present complaint is filed.
03. After filing of complaint, this court perused the documents and taken cognizance for the offence punishable under section 138 of Negotiable Instrument Act, sworn statement of complainant was recorded. Being satisfied that there are prima-facie materials to proceed against accused, summons was issued. After appearance, accused enlarged on bail and plea was recorded as per section 251 of Cr.P.C. Accused has not stated the defence.
04. In order to prove his case, complainant his Special Power of Attorney holder and daughter as PW.1 and got marked documents from Ex.P.1 to 15. The statement under section 313 of code of criminal procedure is recorded, read over and explained to the accused. The defence of the accused is total denial. Further accused and his wife examined as 5 C.C.13444/2013 DW.1 & DW.2 and got marked documents as Ex.D.1 & Ex.D.2 through confrontation in the cross examination of the complainant.
05. In this case, the evidence on record shows that summons trial procedure was adopted instead of summary trial. As per the judgment passed by Supreme Court reported in 2014 Cr.L.J. 1953, in a case of Mehsana Nagarik Sahakari Bank Limited V/s. Shreeji CAB Company Limited and others, conducting Denova trial does not arises.
06. Complainant relied on the following citations;
1. 2006 -Crl.L.J 1(AP)
2. 2007 -Crl.L.J.(NOC) 520 (KER) Sanjeev P.R. V/s. Thriveni Credit Corporation, Thodupuzha & Another
3. 1999 (4) Crimes 212 (SC) K.Bhaskaran Vs. Sankaran Vaidhyan Balan & Another 6 C.C.13444/2013 4.2001- Crl.L.J.4647 (SC) Hiten P.Dalal Vs. Bretindranath Baneerjee, 5.2004(3) kccr 1816 (Karnataka High Court) L. Mohan Vs. Mohan Naidu
6. 2006 Crl.L.J. 904(KAR) Smt. Usha Suresh Vs. R.V.Shashidaran
7.ILR 2013 KAR 1201 Sri.M.Prakash Vs. Sri.Murugarajendra Co-Operative
8. ILR 1998- LAR 1825 J.Rajanna Setty Vs. Sri Patel Thimmegowda
9. ILR 2006 KAR 2054 H.S.Srinivasa Vs. Girijamma and Others
10. 2001(4) KAR LJ 122 S.R. Muralidar Vs. Ashok.G.Y.
11. 2008 Crl.L.J. (NOC) 1153 (BOM) Shree Hemant Pavel Gracias Vs. Shree Socorro Santan Fernandes 12.2014 AIR SCW 4321 M/s. Ajeet Seeds Limited Vs. K. Gopala Krishnaiah,
13. 2007 6 Supreme Court Cases 555 C.C.Alavi Haji, Vs. Palapetty Muhammed and another, 7 C.C.13444/2013
14. 2009 Crl.L.J. 326 (SC) M/S. Indo Automibiles Vs. M/S. Jai Durga Enterprises & Ors,
07. Accused relied on the following citations;
1. (2010)4 Supreme Court Cases 329 Tukaram S. Dighole Vs. Manikrao Shivaji Kokate
2. 2003 SCC Bom 945 Boman P.Irani and Another Vs. Manilal P.Gala and Others.
3. 2007 SCC Madras 1334 P.Umapathy & Anr . Vs. Muthupandian
4. (2014) 11 SCC 790, A.C.Narayan Vs. State of Maharashtra
5. 2019 SCC 5 Pg. 418 Basalingappa Vs. Mudibasappa
08. Heard the Learned Counsel for complainant and accused. Perused the written arguments filed on behalf of the complainant, accused, citations and materials on record. 8 C.C.13444/2013
09. The points that arise for my consideration are as follows;
POINTS
1. Whether the complainant proves that, accused issued cheque bearing No.341414 dated 20.03.2013 for Rs.3,00,000/-, towards discharge of his liability, which was returned unpaid on presentation and also not complied the notice issued by the complainant and thereby committed an offence punishable under section 138 of Negotiable Instruments Act?
2. What Order?
10. My answer to the above points is as follows;
1. Point No.1: In the Affirmative
2. Point No.2: As per final order for the following;
REASONS
11. POINT No.1: Complainant has filed this complaint alleging that accused has committed offence under section 9 C.C.13444/2013 138 of N.I. Act. He pleads and asserts that, towards discharge of his liability, accused has issued a cheque bearing No.341414 dated 20.03.2013 for Rs.3,00,000/-, the said cheque came to be dishonoured on presentation. Complainant has issued notice within time stipulated calling upon the accused to pay the amount covered under cheque. Inspite of service of notice, accused has not paid the amount within 15 days, which gave raise cause of action to file this complaint. Complainant further relied on the documents from Ex.P.1 to 15. This witness was subjected to cross examination.
12. In this scenario, let us scrutinize the documents relied by complainant in order to examine the compliance of statutory requirements envisaged under section 138 of N.I. Act. Ex.P.1 is cheque dated 20.03.2013, the said cheque returned with an endorsement " Account Closed". Ex.P.2 is bank endorsement dated 22.03.2013, Ex.P.3 is legal notice 10 C.C.13444/2013 dated 16.04.2013, which was duly served on the accused on 17.04.2013, Ex.P.4 is postal receipt, Ex.P.5 Postal acknowledgement, Ex.P.6 is complaint, Ex.P.7 is the notarized copy of Special Power of Attorney, Ex.P.8 is the postal receipt, Ex.P.9 is the bank pass book of the complainant, Ex.P.9(a) is the relevant portion of the pass book, Ex.P.10 is the RTC belongs to the complainant's mother, Ex.P.11 deposition of accused in O.S.No.75/2013 at Theerthahalli, Ex.P.12 is the notarized copy of agreement of sale dated 15,03.2012, Ex.P.13 is the is the notarized copy of postal cover, Ex.P.14 is the bank pass book of the Shantha.M.S., Ex.P.15 is the written statement of accused in O.S.No.75/2013. This complaint came to be filed on 27.08.2013.. A careful scrutiny of the documents relied by the complainant goes to show that, statutory requirements of section 138 of N.I. Act is complied with and this complaint is filed within time. Thus, complainant relied on the statutory 11 C.C.13444/2013 presumptions enshrined under section 118 read with section 139 of N.I. Act.
13. No doubt, the said presumptions of law are rebuttable in nature. The accused can take probable defence and rebut the presumption available to the complainant. Let us examine whether accused has successfully rebutted the presumptions of law. The accused denied the impugned transaction and also denied the service of legal notice. It is the specific defence of the accused that, complainant is his distant relative, but of little acquaintance. In the year 2009, accused has taken loan amount of Rs.25,000/- from his aunt by name Shantha, at that time, he has handed over signed blank cheque to said Shantha for the purpose of security. Even after expiry of 2-3 years, accused was not able to return the amount. Hence, said Shantha intent to purchase 35 guntas of land belongs to the accused situated at Mudugiri, Theerthahalli for Rs.2,00,000/- and agrees to pay the balance amount after 12 C.C.13444/2013 deducting the loan amount. Accordingly, she paid Rs.70,000/- by way of cash and under take to pay Rs.90,000/- by way of cheque. But, she has not issued the cheque and hence accused has not executed sale deed in her favour. A Civil Suit is pending in this regard, before Theerthahalli court. Said Shantha has misused the security cheque issued at the time of availing hand loan of Rs.25,000/- and filed this false case through her sister's husband. At no point of time, disputed cheque was issued in favour of the complainant. Accused has also disputed the competency of Special Special Power of Attorney holder to give evidence, as she has no personal knowledge of the impugned transaction. On these contentions, accused sought for dismissal of the complaint and consequent acquittal. To endorse these contentions, accused examined himself as DW.1 and also examined his wife as DW.2 and relied the documents from Ex.D. 1 & Ex.D.2, certified copies of plaint 13 C.C.13444/2013 and order sheet of O.S.No.75/2013 before Theerthahalli Civil Judge Court.
14. In the back drop of the rival contentions, this court has given anxious consideration to the case papers. At the outset, accused has admitted the issuance of the disputed cheque and also admitted the signature present therein. Thus legal presumptions enshrined under section 118 read with section 139 of the NI Act, is available to the complainant. The said provisions lays down a special rule of evidence that, unless contrary is proved, it shall be presumed that, the complainant is the holder in due course of the cheque and it was issued for consideration. No doubt, the statutory presumptions are rebuttable in nature. In case, accused is successful in rebutting the presumptions by raising probable defence, the reverse onus shifts on the complainant to prove the contrary, that the accused is liable to pay the cheque amount and there exists legally enforceable debt. 14 C.C.13444/2013
15. This proposition of law is laid down by the Hon'ble High Court of Karnataka in the decision reported in ILR 2006 KAR 4672 - J.Ramaraj V/s Iliyaz Khan, wherein it is held that;
"Mere denial of issuing cheque would not be sufficient as it is time and again noted that once the cheque is issued duly signed by the petitioner, the presumption goes against him as per Sec.139 of the Negotiable Instruments Act."
No doubt, said statutory presumptions are rebuttable in nature. It is for the accused to place cogent and probable defence to rebut the presumptions raised in favour of the Complainant.
16. To discharge the burden of rebuttal, accused has put forth the various contentions. Let us consider those contentions to examine the sufficiency to rebut the statutory presumptions raised in favour of the complainant. The first 15 C.C.13444/2013 and foremost contention is on technical ground of non service of legal notice on the accused. It is argued that, the service of legal notice on the accused i.e., compliance of section 138(b) of NI Act, is pre-requisite to launch this prosecution. In that view of the matter, it is just and proper to examine this aspect before proceedings further.
17. Complainant claims that, after dishonour of disputed cheque, Ex.P.3- legal notice dated 16.02.2013 was issued to both the addresses i.e., working address and permanent address of the accused. The legal notice issued to both the address were duly served on the accused as per Ex.P.5. The Postal acknowledgement in respect of issuance of notice to the native address of the accused was not received by the complainant / Learned Counsel for complainant . However, it can be taken that, legal notice sent to the correct address of the accused was deemed to have been served on him. 16 C.C.13444/2013
18. Per contra, it is vehemently argued on behalf of the accused that, the legal notice issued to the working address of the accused i.e., ' Swadista Family Restaurant' was not served on him. Ex.P.5- Postal acknowledgement reveals that, the signature present on the said acknowledgment was striked out and name of the accused is written. Said signature does not belongs to the accused. The Postal acknowledgement is concocted for the purpose of this case.
19. To counter this contention, complainant has put forth the explanation that, when the notice was sent to the working address of the accused, he was taking rest in his room. The authorized person of the restaurant has received the legal notice and put his signature on the Postal acknowledgement. Later on, in response to the phone call, accused came and received the legal notice by affixing his signature. Therefore, postal department employee has strike off the earlier signature of the employee of restaurant and also mentioned 17 C.C.13444/2013 the phone number of the accused. Accused is taking advantage of the said aspect and disputes the service of legal notice.
20. In the light of the afore said submission of both parties, if we go through the materials on record, it is evident that, accused has not disputed the address mentioned in the Postal acknowledgement at Ex.P.5. Thus, it is abundantly clear that, the legal notice sent by way of registered post acknowledgment due to the proper and correct address of the accused. Therefore, section 27 of General Clauses Act and 114 of Indian Evidence Act, comes into play and thereby court can safely presume the service of legal notice. No doubt, accused disputes the mobile number mentioned in the said Ex.P.5- acknowledgment. However, he admits Ex.P.13- certified copy of the postal cover depicting the native/ permanent address of the accused. Wherein, the same cell number is mentioned. Accused has not denied the mentioning 18 C.C.13444/2013 of the said cell number with his admitted address forth coming in Ex.P.13. As such, it can be conveniently infer that, there is service of legal notice to the first address of the accused mentioned in the legal notice as well as cause title of the complaint.
In the decision reported in, (2014) 12 Supreme Court Cases 685, M/s. Ajeet Seeds Limited Vs. K. Gopala Krishnaiah, it is held that;
" B. Statute Law- General Clauses Act, 1897- S.27- Presumption as to service of notice- Notice sent to correct address by registered post- Service of, unless and until the contrary is proved, reiterated, is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business- Evidence Act, 1872- S.114."
In the present case, accused has not disputed his address mentioned in the legal notice. Hence, it can be taken that, there is valid service of service of legal notice. 19 C.C.13444/2013
21. Even otherwise, Ex.P.8 -postal receipt shows that, postal instrument was sent through registered post on 16.04.2013 to the second address i.e., native of the accused. Complainant claims that, legal notice was sent under the said receipt. Admittedly, accused has not disputed his native address. Though, complainant has not produced the Postal acknowledgement to show the service of legal notice on the accused to his native address. However, by invoking section 27 of General Clauses Act, it can be taken that, notice sent to the correct and proper address of the accused by way of registered post, is deemed to have been served on the addressee. No doubt, accused claims that, complainant has not produced this receipt at the initial stage along with the complaint. Said receipt was produced after cross examination of Special Power of Attorney holder of the complainant on this point to fill up the lacuna. However, the complaint as well as the legal notice depicts both address of the accused. Therefore, production of the second postal receipt at belated 20 C.C.13444/2013 stage is not fatal to the case of the complainant. For all these reasons, this court opined that, this contention of accused disputing the service of legal notice, is not acceptable.
22. Further, it could be seen that, inspite of service of legal notice, the accused has not taken steps to issue reply taking all these contentions. The act of the accused in not issuing reply at the earliest point of time immediately after service of the legal notice is one of the strong circumstances in favour of the complainant. This proposition of the law laid down in the following decisions.
23. To fortify this point, complainant relied on the following authorities;
In the decision reported in, 2009 CRI.L.J. 236, M/S. Indo Automibiles Vs. M/S. Jai Durga Enterprises & Ors, it is held that;
21 C.C.13444/2013
" Negotiable Instruments Act (26 of 1881), S.138- Dishonour of cheque- Notice sent to respondents through registered post and under certificate of posing on their correct address- Must be presumed that service has been made effective- Service of notice could not be found to be not valid merely because of endorsement of postal peon - Moreso, when postal peon was not at all examined- Order summoning respondents - Quashing of, on ground that notice was not served on them- Liable to be set aside".
In the decision reported in, (2007)6 Supreme Court Cases 555, C.C.Alavi Haji, Vs. Palapetty Muhammed and another, it is held that;
" B. Negotiable Instruments Act, 1881, - S.138 provisions (b) & (c) -
Course open to drawer where he claims not to have received the notice sent by post but received copy of the complaint with the summons- Held, he can within 15 days of the receipt of the summons make payment of the cheque amount and on that basis submit to the court that the complaint be rejected- He then cannot contend that there was no proper service of notice. "
22 C.C.13444/2013In the decision reported in, 2007 CRI.L.J. (NOC) 520 (KER), Criminal Rev.Petn. No. 1249 of 2005 (A). D/- 28.07.2006, Sanjeev P.R. V/s. Thriveni Credit Corporation, Thodupuzha & Another; wherein it is held that;
"(B). Negotiable Instrument Act (26 of 1881), S.138- Dishonour of cheque- Conviction- Validity-
Signature in cheque is admitted -
Notice of demand though duly received and acknowledged , did not evoke any reply......- Concurrent finding that complainant has succeeded in proving all ingredients of the offence punishable under section 138 - Conviction of accused proper."
Further, in the decision reported in, 2006 CRI.L.J.1, Criminal Appeal No. 1581 of 1999 and Cri Revision case No 312 of 1999, D/- -7.10.2005, Gorantala Venkateswara Rao. V/s. Kolla Veera Raghava Rao and another, it is held that;
23 C.C.13444/2013
"(B) Negotiable Instrument Act ( 26 of 1881), S.138 - Dishonour of cheque- Legally enforceable debt-
Failure of accused in giving reply to legal notice issued by complainant-
Is one of the strong circumstances to draw an inference that accused borrowed amount from complainant and cheque was issued towards part payment of legally enforceable debt."
The citations are squarely applicable to the present case. Similar to the facts and circumstances of the said decision, in the present case also, the postal employee has done mistake by strike off the signature of the other person who received the legal notice on the first instance and thereafter, obtain the signature of the accused by serving the legal notice on him. For the said mistake of post man, complainant shall not suffer. Moreover, accused has neither examined post man who caused service nor produced the running sheet maintained by the postal authority to get the signature after service of the postal instrument. Therefore, by applying the 24 C.C.13444/2013 principles laid down in the aforesaid citations, it can be safely taken that, there is valid service of legal notice.
24. Accused has taken further contention disputing the competency of the Special Power of Attorney holder of the complainant to depose, due to lack of knowledge regarding the impugned transaction and allied circumstances. To fortify this contention, the Learned Counsel for the accused invited the attention of the court to the cross examination of PW.1, wherein she has expressed ignorance for few questions posed on behalf of the accused. Relying on this part of evidence, it is argued that, Special Power of Attorney holder of the complainant is not competent to give evidence and hence her evidence does not carry evidentiary value. The Learned Counsel further put forth the line of argument that, there is no mention regarding presence of the Special Power of Attorney holder during the impugned transaction, either in the complaint or in the evidence of the Special Power of 25 C.C.13444/2013 Attorney holder , which is fatal to the claim of the complainant.
25. To buttress this line of argument, accused relied on the decisions reported in, (2014) 11 SCC 790, decided on 13.09.2013, A.C. Narayan Vs. State of Maharashtra, wherein it is observed that;
" 26. (i). Filing of complaint petition under section 138of N.I. Act through Power of Attorney is perfectly legal and competent.
(ii). The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.
(iii). It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who has no 26 C.C.13444/2013 knowledge regarding the transaction cannot be examined as a witness in the case.
Relying on the proposition of the law laid down in the aforesaid decision, it is contended that, the Special Power of Attorney holder of the complainant is not aware of the material facts pertaining to the case on hand and hence, no evidentiary value can be attached to the Said evidence.
26. In the light of the aforesaid submission put forth by the Learned Counsel for accused, this court has given careful consideration to the said portion of the evidence of the Power of Attorney of the complainant. No doubt, PW.1 deposed that, she has forgotten the date of issuance and service of legal notice and to which address of the accused the legal notice was sent and regarding the issuance of legal notice to the only one address of the accused. However, in a normal situation, any person hardly remember the dates of issuance and 27 C.C.13444/2013 service of legal notice effected about five years back. Further, legal notice used to issue by an advocate and the party has got little knowledge about the said aspects. Only on the basis of said ignorance attributable to the Special Power of Attorney holder of the complainant, this court cannot jump into conclusion that, she is not competent to depose on behalf of the complainant.
27. That apart, PW.1 has reformed in her evidence regarding her presence at the time of withdrawal of the amount from the bank and lending the said amount to the accused. She also clearly deposed regarding the purpose for which accused has taken the hand loan from the complainant. Admittedly, she is daughter of the complainant . Above all, application filed seeking permission to examine the Special Power of Attorney holder of the complainant instead of complainant due to his medical condition, was allowed by this court. Accused has not questioned the said order and hence 28 C.C.13444/2013 attained finality. Therefore, this court find substance in the line of argument placed on behalf of the complainant that, accused is estopped from questioning the competency of Special Power of Attorney holder to prosecute this case on behalf of the complainant. So for as, absence of averments in the complaint regarding present of Special Power of Attorney holder during impugned transaction is concerned, this complaint is not filed through Power of Attorney. She came on record at the later stage on the ground of ill health of her father to attend and give evidence before the court. Therefore, there is absence of averments to that effect in the complaint. However, in Ex.P.7- Special Power of Attorney, it is clearly mentioned about the presence of the Special Power of Attorney holder during the incident in question. Viewing from any angle, this contention of the accused questioning the competency of the Special Power of Attorney holder, is not acceptable.
29 C.C.13444/2013
28. Coming to the merits of the case, it is forth coming from the defence put forth by the accused that, during the year 2009, he has issued the cheque in question in favour of his aunt by name Shantha for security towards hand loan of Rs.25,000/-. Since, he failed to return the hand loan amount, agreed to sell his property in favour of Shantha for Rs.2,00,000/-. Said Shantha deducted the loan amount of Rs.25,000/- out of sale consideration amount and paid Rs.70,000/- by way of cash and agreed to pay balance amount of Rs.90,000/- by way of cheque. But, she failed to pay the balance amount of Rs.90,000/- and hence accused has not executed registered sale deed in her favour. Being annoyed by this act of the accused, Shantha misused the security cheque and filed this false complaint. Complainant has totally denied the defence put forth by the accused.
29. In this scenario, let us critically examine the defence. As per the case of the accused, his aunt Shantha has agreed to 30 C.C.13444/2013 purchase the land measuring 35 guntas for Rs.2,00,000/- and agreed to pay the balance amount after deducting the loan amount. If this version is to be believed, after deducting the loan amount of Rs.25,000/, Shantha was required to pay Rs.1,75,000/- to the accused. Surprisingly, accused affirms that, Shantha ha paid Rs.70,000/- by way of cash and under took to pay balance amount of Rs.90,000/- by way of cheque. For better appreciation the relevant portion of evidence of DW.1 is culled out as under;
" 2009gÀ°è £À£Àß aPÀ̪ÀÄä¤AzÀ gÀÆ25000 ºÀt vÉUÉzÀÄPÉÆArzÉÝ. D ¸ÀAzÀ¨ÀsðzÀ°è ¨ÀszÀævÉUÁV ¸À» ªÀiÁrzÀ SÁ° ZÉPÀÌ£ÀÄß DPÉUÉ PÉÆnÖgÀÄvÉÛãÉ. 2-3 ªÀµÀðUÀ¼ÁzÀgÀÆ ºÀt »A¢gÀÄV¸À®Ä ¸ÁzÀåªÁUÀ°®è. D PÁgÀt¢AzÀ, £À£Àß aPÀ̪ÀÄä ±ÁAvÀ wÃxÀðºÀ½îAiÀÄ ºÀwÛgÀ ªÀÄzÀÄUÀÉgÉAiÀÄ°ègÀĪÀ 35 UÀÄAmÉ £À£Àß d«ÄãÀ£ÀÄß gÀÆ2 ®PÀëPÉÌ Rjâ¸ÀÄvÉÛãÉAzÀÄ ºÉý, £Á£ÀÄ vÉÉUÀzÀÄPÉÆArzÀÝ ¸Á®zÀ ºÀtªÀ£ÀÄß PÀ¼ÉzÀÄ G½zÀ ºÀt PÉÆqÀÄvÉÛãÉAzÀÄ PÀgÁgÀÄ ªÀiÁrPÉÆAqÀgÀÄ. D ¥ÀæPÁgÀ gÀÆ70000 ºÀtªÀ£ÀÄß £ÀUÀzÀÄ gÀÆ¥ÀzÀ°è DPÉ £À£ÀUÉ PÉÆlÖgÀÄ, G½zÀ gÀÆ90000 ºÀtªÀ£ÀÄß ZÉPï ªÀÄÄSÁAvÀgÀ PÉÆqÀÄvÉÛãÀÉAzÀÄ ºÉýzÀgÀÄ, DzÀgÉ PÉÆqÀ°®è. DzÀPÁgÀt, £ÉÆAzÀtô PÀæAiÀÄ ¥ÀvÀæ ªÀiÁrPÉÆnÖ®è. F «ZÁgÀªÁV wÃxÀðºÀ½îAiÀÄ°è ¹«¯ï zÁªÉ ZÁ°ÛAiÀÄ°èzÉ. ªÉÄîÌAqÀ ¸Á® vÉUÉzÀÄPÉÆAqÀ ¸ÀAzÀ¨ÀsðzÀ°è ¨ÀszÀævÉUÁV 31 C.C.13444/2013 PÀÉÆnÖzÀÝ ZÉPÀÌ£ÀÄß zÀÄgÀÄ¥ÀAiÉÆÃUÀ¥Àr¹PÉÆAqÀÄ DPÉAiÀÄ vÀAVAiÀÄ UÀAqÀ£À ªÀÄÄSÁAvÀgÀ ¥Àæ¸ÀÄÛvÀ ¥ÀæPÀgÀt zÁR°¹zÁÝgÉ."
Form this part of evidence, it is evident that, out of sale consideration amount Rs.2,00,000/-, Shantha has paid Rs.70,000/- by way of cash, Rs.90,000/- amount was agreed pay by way of cheque and admittedly Rs.25,000/- loan was deducted. Total amount comes to Rs.1,85,000/-. Accused has not placed satisfactory explanation for balance amount of Rs.15,000/- out of agreed sale consideration amount of Rs.2,00,000/-. It is not the case of the accused that, Rs.15,000/- is towards interest calculated on the hand loan of Rs.25,000/-. Moreover, in the Ex.P.12- agreement of sale between the accused and Shantha, there is no mention of deduction of Rs.25,000/- loan amount out of sale consideration amount of Rs.2,00,000/-. For better appreciation the relevant portion of evidence of DW.1 is culled out as under;
32 C.C.13444/2013
" £Á£ÀÄ ±ÁAvÀgÀªÀjAzÀ vÉÉUÉÀzÀÄPÉÆArzÀÝ gÀÆ25000 ºÀtªÀ£ÀÄß PÀ¼ÉzÀÄ, G½zÀ ºÀtPÉÌ PÀæAiÀÄzÀ PÀgÁgÀÄ ¥ÀvÀæ §gÉzÀÄPÉÆqÀ¯ÁVzÉAiÉÄAzÀÄ, PÀæAiÀÄzÀ PÀgÁgÀÄ ¥ÀvÀæzÀ°è ºÉý®è."
Form this part of evidence, it is clear that, non mentioning of said aspect in the agreement of sale is not satisfactorily explained. This aspect creates genuine doubt in the mind of the court.
30. Nevertheless, it is definite case of the accused that, Shantha has not paid the balance amount of Rs.90,000/-, which prompted the accused not to execute the registered sale deed in accordance with Ex.P.12- agreement of sale in favour of the said Shantha. Therefore, said Shantha misused the security cheque. This contention of the accused is seriously opposed by the complainant by relying on the Canara bank pass book of Shantha as per Ex.P.14, which clearly shows that on 19.03.2012, i.e., immediately after execution of Ex.P.12- agreement of sale, an amount of 33 C.C.13444/2013 Rs.90,000/- was withdrawn by accused under cheque number 446592 from the bank account of Shantha as per Ex.P.14(a). Thus, Ex.P.14 falsifies the contention of the accused regarding non payment of balance sale consideration amount by Shantha, which is root cause for this false claim.
31. One more point which merits the consideration of this court is, if at all there was an understanding between the accused and his aunt Shantha to purchase the property belongs to the accused for Rs.2,00,000/- and to pay the consideration amount after deducting Rs.25,000/- as claimed by the accused, what prevented the accused to take suitable steps to get back the security cheque allegedly issued in favour of Shantha towards hand loan of Rs.25,000/- immediately after execution of Ex.P.12- agreement of sale, is not satisfactorily explained. In the normal course of business, any prudent man will certainly take steps to get back the security cheque after execution of the sale agreement. This 34 C.C.13444/2013 conduct of the accused throws shadow on his defence. In that view of the matter, the evidence of wife of the accused i.e., DW.2 will not render much help to prove the defence, as the impugned transaction as well as the alleged transaction claimed by the accused taken place even before her marriage. Therefore, this court is not hesitant to opine that, this defence of the accused is improbable and not sufficient to rebut the statutory presumptions.
32. In this regard, complainant relied on the following authorities;
In the decision reported in, 2008 CRI.L.J.(NOC) 1153, (BOM) - 2008 (4) AIR Bom R 487, Crl.A.58 of 2006, D/- 22.08.2007, Shree Hemant Pavel Gracias Vs. Shree Socorro Santan Fernandes, wherein it is held that;
" (B) Negotiable Instruments Act (26 of 1881), Ss. 138, 118- Dishonour of cheque- Friendly loan of Rs.4 lacs given by complainant to accused- Accused claimed to have given blank cheque to complainant on his assurance to 35 C.C.13444/2013 pay him Rs.1 lac- No explanation furnished by accused is to why he had to give blank cheque-
Surprisingly, no action was taken by accused against complainant who allegedly deceived him by not advancing Rs.1 lac and misusing cheque for Rs.4 lacs - Silence on part of accused is not replying to statutory notice of complainant reflects falsity his case- Accused failed to rebut presumption under S.118- He is liable to be convicted and sentenced to S.I. for 4 months and pay compensation of Rs.4.60 lacs. "
In The decision reported in, 2001 CRI.L.J. 4647, Criminal Appeal No. 688 of 1995 D/- 11.07.2001, Hiten P.Dalal Vs. Bretindranath Baneerjee, wherein it is held that;
" (B) Negotiable Instruments Act ( 26 of 1881), Ss.1 39, 138- Dishonour of cheque-
Presumption that cheque was drawn for discharge of liability of drawer- Is presumption of law- Ought to be raised by Court in every case- Rebuttal evidence- Nature- Mere plausible explanation is not sufficient- Proof of explanation is necessary. "
The decision reported in, 2006 CRI.L.J. 904, Criminal Appeal No. 1108 of 2005, D/- 27.10.2005, Smt. Usha Suresh Vs. R.V.Shashidaran, wherein it is held that;36 C.C.13444/2013
" (A) Negotiable Instruments Act ( 26 of 1881), Ss.138, 139- Dishonour of cheque- Issuance of cheque and signature on cheque is accepted and admitted by accused - Initial presumption has to be raised in favour of the complainant that cheque in question was issued towards ' legally enforceable debt' - Presumption being rebuttable such rebuttal evidence has to be placed before Court by accused - By giving mere explanation, accused cannot get away from penal action- Defence raised by accused must be probable or acceptable to Court. "
The proposition of laid down in the cited decisions is aptly applicable to the case on hand.
33. That apart, accused has taken bleak contention of misuse of blank cheque issued to Shantha towards security for the hand loan of Rs.25,000/-. From the discussion made supra, aforesaid defence of the accused is not proved through cogent and consistent evidence. Any how, section 20 of Negotiable Instrument Act, empowers the holder in due course to fill up the cheque. On this point, it is relevant to refer the following citations relied by the complainant. 37 C.C.13444/2013 In the decision reported in, ILR 2006 KAR 2054;, H.S.Srinivas Vs. Girijappa and others, " Negotiable Instruments Act, 1888 -Section 20- Inchoate Stamped Instruments- Plaintiff's suit for recovery of money with interest based on Blank promissory notes - Application filed to complete the promissory notes as contemplated under Section 20 of the N.I.Act authorizes that where a promissory note is signed and delivered to another person on a properly stamped and either left blank or an incomplete document, the person whom the promissory note delivered will have prima facie authority to make the document complete. - The plaintiff will have the authority to complete the document as a negotiable one- Learned Trial Judge was not justified in rejecting the application on the ground that the filling up the blank instrument is impermissible under Section 93 of the evidence Act- Impugned order is set aside. In another decision reported in, 2001 (4) Kar.L.J.122;, S.R. Muralidar Vs. Ashok.G.Y., it is held that;
" (A) Negotiable Instruments Act, 1881, Sections 20, 138,139 and 140- Blank cheque-
Issue of - Issuing of cheque duly signed by maker thereof authorizing payee to fill up amount agreed upon will not invalidate cheque as such practice is recognised and 38 C.C.13444/2013 permitted by law- Dishonour of such cheque attracts penal liability."
By applying the principle laid down in the afore said decisions to the facts and circumstances of this case, it can be conveniently held that, the above contention of the accused holds no water.
34. Further accused disputes the source of income and financial capacity of the complainant to lend an amount of Rs.3,00,000/- to the accused. To counter this contention, complainant has produced Ex.P.9- bank pass book to show that, as on the date of transaction, funds available in the bank account of the complainant to lend hand loan to the accused. Accused seriously disputes this document on the ground that, except on 12.03.2013, no other entries in the said bank pass book reveal the balance of more than Rs.1,00,000/-. The strenuous contention of the accused is that, Shantha has deposited an amount of Rs.3,00,000/- in 39 C.C.13444/2013 the bank account of the complainant to suit the story created by Shantha in collusion with the complainant.
35. Per contra, complainant put forth the plea that, he has got agricultural income out of property standing in the name of his mother Duggmma, W/o.Late.Govindegowda and produce RTC as per Ex.P.10. Accused disputes this document on the ground that, complainant has not produced any document to show that, Duggamma is his mother and he has got regular agricultural income. In the back drop of the rival contentions, it is evident from the case papers that, accused has not denied the relationship of complainant and Duggamma to the suggestions posed in the course of cross examination. For better appreciation the relevant portion of evidence of DW.1 is culled out as under;
"¤¦.10-¥ÀºÀtôAiÀÄ°è ¸ÀÆa¹gÀĪÀ zÀÄUÀΪÀÄä PÉÆÃA ¯ÉÃmï UÉÆëAzÉÃUËqÀ, zÀÆgÀÄzÁgÀgÀ vÁ¬ÄAiÀiÁUÀ¨ÉÃPÀÄ JAzÀgÉ UÉÆwÛ®è. ¸ÀzÀj ¥ÀºÀtôAiÀÄ°è zÀÄUÀΪÀÄä£ÀªÀgÀ »¸ÉìUÉ MAzÀÄ JPÀgÉ 13 UÀÄAmÉ d«ÄãÀÄ vÉÆÃj¹zÉ JAzÀgÉ ¸Àj."40 C.C.13444/2013
Admittedly, accused is related to the complainant. If at all, Duggamma is not mother of the complainant, he could have specifically denied the afore said suggestion instead of expressing ignorance. That apart, name of father of the complainant mentioned in the cause tile of the complaint tallies with the husband name of Duggamma, W/o.Govindegowda. As admitted by accused, Ex.P.10 RTC depicts that 1 acre 35 guntas land goes to show that, to Duggamma. Thus, this court has no hesitation to infer that, complainant has got regular agricultural income, which appears to have deposited in his bank account on various dates. No doubt, complaint lacks the detailed description of the income of the complainant. However, it goes with out saying that, complaint is not an encyclopedia to include each and every aspects and it is quite natural to the complainant to elaborate his source of income in the course of evidence more specifically in the cross examination. 41 C.C.13444/2013
36. Nevertheless, it is settled point that, when the complainant is relied on the statutory presumptions, the burden of rebuttal is on the accused. In case, accused is successfully placed probable defence so as to rebut the presumptions of law, then only the reverse onus shifts on the complainant to prove the impugned transaction, availability of funds, financial capacity such other aspects independently through cogent and acceptable evidence. At the cost of repetition, from the discussion made supra, it is abundantly clear that, accused is not successful in rebutting the statutory presumptions. Thus, the question of calling upon the complainant to prove the aforesaid aspects does not arise.
37. Even otherwise, the Hon'ble Supreme Court of India, pleased to observe in the larger bench decision reported in, Rangappa Vs. Mohan reported in AIR 2010 SC 1898 = 42 C.C.13444/2013 2010 AIR (SCW) 2946, It is relevant to reproduce said observations;
Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the complainant. The presumption referred to in Section 139 of the NI 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 the given circumstances. 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. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the court. Hence, the High Court concluded that the alleged discrepancies on part of the complainant which had been noted by the trial court were not material since the accused had failed to raise a probable defence to rebut the presumption placed on him by Section 139 of the Act. Accordingly, the Hon'ble High Court recorded a finding of conviction. 43 C.C.13444/2013 It is further observed in para 18 of the decision that, Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumptions contemplated by Section 139 of the Act.
" Chapter XVII containing Sections 138 to 142 was introduced in the Act by Act 66 of 1988 with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions. These provisions were intended to discourage people from not honouring their commitments by way of payment through cheques. The court should lean in favour of an interpretation .........
In view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. The presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption.
A contrary view would render S.138 a dead letter and will provide a handle to persons trying to avoid payment under legal obligations undertaken by them through their own acts which in other words can be said to be taking advantage of one's own wrong. ..."44 C.C.13444/2013
The Hon'ble Apex court clearly laid down the ratio that, when the ingredients of section 138 of NI Act is complied with, presumption shall be drawn in favour of the complainant . The burden is upon the accused to rebut the statutory presumptions.
38. Accused relied on the decision reported in AIR 2019 SC 1983, Crl.A.636/2019 Basalingappa Vs. Mudi Basappa, and argued that, complainant is required to prove his financial capacity of lending money. With due respect, in the cited decision the Hon'ble Supreme Court of India observed that, Complainant in that case has utilized his retirement benefits of Rs.8,00,000/- to pay the sale consideration amount and further payment of loan of Rs.50,000/-. Thus, case of the complainant regarding payment of Rs.18,00,000/- was held to be doubtful. Per contra, in the present case, complainant has produced the pass book to show the availability of funds along with the RTC to establish 45 C.C.13444/2013 agriculture income. The occupation of the complainant as painter is not seriously disputed by the accused. In that view of the matter, this court may not be at fault in holding that the facts and circumstances of the decision relied by the accused is not applicable to the present case. More over, by law of precedents, law laid down by the larger bench of the Hon'ble Supreme Court is binding on this court.
39. That apart, as far as proof of existence of legally enforceable debt is concerned, it is profitable to refer the observations of Rangappa's case cited supra;
"In the light of these extracts, we are in agreement with the respondent-
claimant that the presumption
mandated by section 139 of the Act
does indeed include the existence of
the legally enforceable debt or
liability".
In view of the law laid by three judges bench of Hon'ble Apex Court, the presumption enshrined under section 139 of the N.I. Act is extendable to the existence of legally enforceable 46 C.C.13444/2013 debt. Accused has not placed cogent material to rebut the said presumption. As such, this contention of the accused disputing the financial capacity of the complainant, holds no water.
40. Under the facts and circumstances of this case, it is profitable to refer the decisions of the Hon'ble Supreme Court of India reported in, AIR 2018 SUPREME COURT 3601, in a case of, T.P.Murugan (Dead) Thr.Lrs. V. Bojan, wherein it is held that;
" Negotiable Instruments Act (26 of 1881), Ss.118,138,139- Dishonour of cheque- Presumption as to enforceable debt- cheques allegedly issued by accused towards repayment of debt- Defence of accused that 10 cheques issued towards repayment of loan back in 1995- Behavior of accused in allegedly issuing 10 blank cheques back in 1995 and never asking their return for 7 years, unnatural- Accused admitting his signature on cheques and pronote, presumption under S.139 would operate against him- Complainant proving existence of legally enforceable debt and 47 C.C.13444/2013 issuance of cheques towards discharge of such debt- Conviction, proper".
41. In another decision reported in, AIR 2018 Supreme Court 3604, in a case of Krishna Rao Vs. Shankargouda, wherein it is held that;
"Negotiable Instruments Act (26 of 1881), Ss.138, 139-Dishonour of cheque- Presumption as to - Accused issuing cheque of Rs. 2 lacs towards repayment of loan to complainant - Said cheque dishonored on account of insufficiency funds- Complainant proving issuance of cheque having signatures of accused- Accused failing to rebut presumption raised against him and no evidence led by him in his support - Acquittal of accused by High Court in revisional jurisdiction on ground of doubt in mind of court with regard to existence of loan, improper- Accused, liable to be convicted".
42. Moreover, in the latest judgment decided on 15th March 2019, the Hon'ble Supreme Court of India, AIR 2019 48 C.C.13444/2013 Supreme Court 1876; Rohitbhai Jivanlal Patel V/s State of Gujarat & Another, it is observed in para 12 that;
" 12. For determination of the point as to whether the High Court was justified in reversing the judgment and order of the Trial Court and convicting the appellant for the offence under section 138 of the NI Act, the basic questions to be addressed to are two - fold: as to whether the complainant - respondent No.2 had established the ingredients of Sections 118 and 139 of the NI Act, so as to justify drawing of the presumption envisaged therein; and if so, as to whether the accused -appellant had been able to displace such presumption and to establish a probable defence whereby, the onus would again shift to the complainant?........"
It is further observed in 18.6 that;
" 18.6. The fact of the matter remains that the appellant could not deny his signatures on the said writing but attempted to suggest that his signatures were available on the blank stamp paper with Shri Jagdishbhai. This suggestion is too remote and too uncertain to be accepted.49 C.C.13444/2013
No cogent reason is available for the appellant signing a blank stamp paper. It is also indisputable that the cheques as mentioned therein with all the relevant particulars like cheque numbers, name of bank and account number are of the same cheques which form the subject matter of these complaint cases. The said document bears the date 21.03.2007 and he cheques were postdated, starting from 01.04.2008 and ending 01.12.2008. There appears absolutely no reason to discard this writing from consideration...."
It is further observed in para No.19 that;
" 19. Hereinabove, we have examined in detail the findings of the Trial Court and those of High Court and have no hesitation in concluding that the present one was clearly a case where the decision of the Trial Court suffered from perversity and fundamental error of approach; and the High Court was justified in reversing the judgment of the Trial Court. The observations of the Trial Court that there was no documentary evidence to show the source of funds with the respondent to advance the loan, or that the respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the 50 C.C.13444/2013 complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaint to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not. The other observations as regards any variance in the statement of complainant and witness; or want of knowledge about dates and other particulars of the cheques; or washing away of the earlier cheques in the rains though the office of the complainant being on the 8th floor had also been or irrelevant factors of consideration of a probable defence of the appellant....."
The ratio laid down in the cited decisions are aptly applicable to the case on hand.
51 C.C.13444/2013
43. The accused has taken a vague defence and not placed cogent evidence to prove the same. This aspect is discussed in detail in a decision reported in, 2014(4) AKR 98 between Sripad Vs.Ramadas M.Shet, Criminal Appeal No.2689 of 2009, wherein it is held that;
"Negotiable Instrument Act (26 of 1881), Ss.138,139, 118- Dishonour of cheque-Acquitted-Validity-Cheque issued by repay loan amount to complainant, was dishonoured-Specific defence -However, accused failed to rebut initial presumption under sections 118 and 119- Mere distorted version or mere taking up defence by It means that he is not liable to pay any amount- Are not sufficient to put back the burden on to the complainant-
Acquittal of accused- Not proper."
The ratio laid down in the cited decision is squarely applicable to the facts on hand.
52 C.C.13444/2013
44. In this case plea of the accused was recorded as per section 251 of Cr.P.C. Accused pleaded not guilty. As per section 251 of Cr.P.C. accused has to state about his defence. Here, except pleading not guilty accused has not stated his defence at the time of recording plea. As per the decision reported in AIR 2014 SC 2528 (Indian Bank Association V/s Union of India), Crl. Petition No.8943/2010 M/s.Mess Transgare Pvt V/s Dr .R. Parvathareddy and in Rajesh Agarwals case, Wherein, it is held that; " Accused cannot simply say " I am innocent " or " I pleaded not guilty ". The proposition of law laid down in the aforesaid decision is squarely applicable to the facts and circumstances of this case. As such, it cannot be taken that accused has rebutted the presumption of law enshrined under section 139 and 118 of N.I. Act, by mere pleading not guilty.
45. From the discussion made supra, it is clear that, accused has neither taken probable defence nor taken steps to 53 C.C.13444/2013 prove the same. To put it other way, accused has not taken and proved probable defence to rebut the presumption of law available in favour of the complainant, envisaged under section 118 read with section 139 of N.I. Act. Accordingly, the case of the complainant is believable. Complainant has proved that, accused has intentionally not maintained sufficient amount in his account to honour the disputed cheque. Hence, this point No.1 under consideration is answered in the affirmative.
46. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act It is worth to note that, the offence is of the nature of civil wrong. Hence, it is proper to award sentence of fine, instead of awarding sentence of imprisonment. Hon'ble Supreme Court of India in a decision reported in, Crl.Appeal No.1731 OF 2017, D/- 05.10.2017, M/s. METERS AND INSTRUMETNS PRIVATE 54 C.C.13444/2013 LIMITED & ANR, KANCHAN MEHTA, observed that, "The complainant could be given not only the cheque amount but double the amount so as to cover interest and costs. Section 357(a) (b) of the Cr.P.C. provides for payment of compensation for the loss caused by the offence out of the fine." Hon'ble Supreme Court of India in another decision reported in, (2015) 17 SCC 368, in a case of H.Pukhraj Vs. D.Parasmal, observed that, having regard to the length of trial and date of issuance of the cheque, it is necessary to award reasonable interest on the cheque amount along with cost of litigation. Considering all these aspects, this court proceed to pass the following;
ORDER
Acting under section 255 (2) of
Criminal Procedure Code, accused is
hereby convicted for the offence
punishable under section 138 of
Negotiable Instrument Act and sentenced 55 C.C.13444/2013 to pay fine of Rs.6,10,000/- (Six Lakhs Ten Thousand Rupees only). In default thereof accused shall undergo simple imprisonment for 6 (Six) months.
Acting under section 357(1) (b) of code of criminal procedure, it is ordered that, Rs.6,00,000/- (Six Lakhs Rupees only), there from shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/-
(Ten Thousand Rupees only) is defrayed to the state for the expenses incurred in the prosecution.
The bail bond of the accused stands cancelled.
56 C.C.13444/2013
Office to supply the copy of this Judgment to the accused immediately on free of cost.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 14th day of February 2020}.
(KALPANA.M.S.) XX ACMM, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 Sri.Vishwanatha.G.G. List of documents produced on behalf of complainant:
Ex.P.1 Cheque
Ex.P. 1(a) Signature of the accused
Ex.P. 2 Bank endorsement
Ex.P. 3 Copy of the legal notice
57 C.C.13444/2013
Ex.P. 4 Postal receipt
Ex.P. 5 Postal acknowledgement
Ex.P.6 Complaint
Ex.P.7 Notarized copy of Special
Power of Attorney
Ex.P.8 Postal receipt
Ex.P.9 Bank pass book of the
complainant
Ex.P.9(a) Relevant portion of the pass book Ex.P.10 RTC belongs to the complainant's mother Ex.P.11 Deposition of accused in O.S.No.75/2013 at Theerthahalli Ex.P.12 Notarized copy of agreement of sale dated 15.03.2012 Ex.P.13 Notarized copy of postal cover Ex.P.14 Bank pass book of the Shantha.M.S., Ex.P.15 Written statement of accused in O.S.No.75/2013.
58 C.C.13444/2013List of witnesses examined on behalf of accused:
D.W.1 Sri.M.S. Dilip Kumar DW.2 Smt.Vinoda
List of documents produced on behalf of accused:
Ex.D.1 & Ex.D.2 Certified copies of plaint and order sheet of O.S.No.75/2013 before Theerthahalli Civil Judge Court XX A.C.M.M., Bengaluru.