Bangalore District Court
Anil Kumar vs Nagaraju on 4 September, 2024
1
C.C.NO. 20298/2018
KABC030549082018
Presented on : 25-07-2018
Registered on : 25-07-2018
Decided on : 04-09-2024
Duration : 6 years, 1 months, 10 days
IN THE COURT OF THE XXII ADDL.CHIEF JUDICIAL
MAGISTRATE, BENGALURU
PRESENT : SRI.JAI SHANKAR.J,
B.A.L., LL.B
XXII ADDL.C.J.M., BENGALURU.
DATED: THIS THE 4TH DAY OF SEPTEMBER 2024
JUDGMENT UNDER SECTION 278(1) of BNSS -2023
(Old Correspondence No. 255(1) OF CODE OF CRIMINAL
PROCEDURE,
C.C.NO. : 20298/2018
COMPLAINANT : Sri. Anil Kumar,
S/o. Late Venkatesh,
Aged about 34 years,
R/at No.80,
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C.C.NO. 20298/2018
Pattangere Village,
R.R.Nagar,
Bangalore - 560 098.
(By Sri. K.N. Shashidhar., Adv.,)
V/s.
ACCUSED : Sri. Nagaraju,
S/o. Hanumanthaiah,
Aged about 48 years,
Residing at Kurubara Karenahalli,
S.C.Colony, Bidadi Hobli,
Ramanagar District & Taluk.
(By Sri.H.T. Nagaraja, Adv.,)
Offence complained : U/s.138 of N.I.Act
of
Plea of the Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 04.09.2024
JUDGMENT
The complainant has filed this complaint U/s. 200 of Cr. P C R/w sec. 138 of N.I.Act against the accused alleging 3 C.C.NO. 20298/2018 that, he has committed an offence punishable U/s.138 of N.I.Act.
The brief facts of the present case are as under:-
2. The accused is well known to the complainant and under such acquittance, during the month of October 2017, the accused requested the complainant for hand loan of Rs.5 Lakhs for his financial commitments and domestic needs assuring to repay the same within a period of six months. Believing the assurance made by the accused, the complainant had advanced an amount of Rs.5 lakhs to the accused. After lapse of six months, on several demands made by the complainant, the accused has issued the cheque bearing No.597593, dt:30.04.2018 for Rs.5 Lakhs drawn on Canara Bank, Bidadi Branch, Bidadi, Ramanagar District - 53 assuring that, on presentation it would be honored. The complainant has presented the cheque 4 C.C.NO. 20298/2018 through his banker ie., Canara Bank, Rarjarajeshwari Nagar Branch, Bengaluru, but it returned with shara as "Funds Insufficient" on dt:01.05.2018. Immediately, the complainant got issued the legal notice dt:10.05.2018 through RPAD demanding the repayment of the cheque amount, which was served on the accused on 23.05.2018, but he has not chosen to comply the demand which gave cause action to file the present complaint.
3. After filing of the complaint, this court has taken cognizance of the offence punishable U/s.138 of N.I.Act.
Sworn statement of the complainant was recorded. Being satisfied that, there are primafacie materials to proceed against accused, summons was issued. After appearance of the accused, he was enlarged on bail and plea was recorded. The accused pleaded not guilty and claimed for the trial. 5
C.C.NO. 20298/2018
4. From the basis of the pleading, the following points that arise for my consideration are as follows:-
1. Whether the complainant proves that, the accused issued cheque bearing No.597593, dt:30.04.2018 for Rs.5 Lakhs drawn on Canara Bank, Bidadi Branch, Bidadi, Ramanagar District - 53, towards discharge of his liability which was returned unpaid on presentation for the reason "Funds Insufficient" and despite of the knowledge, he has not paid the said cheque amount and thereby, committed an offence punishable U/s.138 of N.I.Act?
2. What order?
5. The sworn statement and the documents marked at Ex.P.1 to P.4 of the complainant is being treated as the complainant evidence as per the decision rendered by the Hon'ble Apex Court in Indian Bank Association Vs. Union of India and Ors., reported in 2010 (5) SCC 590. On completion of the complainant evidence, the statement of 6 C.C.NO. 20298/2018 accused as required U/s.313 of Cr.P.C. is recorded and he has denied the incriminating evidence appeared against him and submitted that, he has the evidence and accordingly, he has been examined as DW.1 and got marked Ex.D.1 document and also got examined two witnesses by name Sri. Nanjundaiah Bhovi as DW.2 and Sri. Bengaluraiah as DW.3 and closed his side evidence.
6. Heard. The defence counsel filed written argument and relied upon the decisions referred therein ie.,
1. AIR 2024 SC 2105 - M/s. Rajco Steel Enterprises Vs. Kavita Saraff
2. 2024 (2) KCCR 1488- B.A. Abubakkar Saheb Vs. D.K. and Udupi Dist. Fish Marketing Federation ltd., Mangalore
3. 2024 (2) KCCR 1131 - Khaleel Khan.P Vs. Shankarappa 7 C.C.NO. 20298/2018
4. 2024 (2) KCCR 1571 - C.M. Mallikarjunappa Vs. B.G. Sharanappa
5. 2011 CRI.L.J 531 - Joseph Vilangadan Vs. Phenomenal Health Care Services Ltd., and Anr.
7. 2003 CRI. L.J. 2146 - M/s.Pawan Enterprises Vs. Satish H. Verma
8. AIR 2006 SC 3366 - M.S. Narayana Menon @ Mani Vs. State of Kerala and Anr.
9. 2007 0 Supreme (GUJ) 125 - Manishbhai Bharatbhai Shah Vs. State of Gujarat
10. 2009 (3) Crimes 133 (Bom.) - Bombay High Court - Titanor Components Ltd., Vs. Techno Engineers and Another
11. 2019 SC 1983 - Basalingappa Vs. Mudibasappa 8 C.C.NO. 20298/2018
12. 2016 (4) KCCR 2891 - Prabhakra Murthy Vs. S.G. Shankaraiah
13. 2015 (5) KCCR 990 - L. Raju V/s. Gurappa Reddy
14. LAWS (KAR) 2010 152 - B. Girish Vs. S. Ramaiah
15. (2014) 2 SCC 236 - John K. Abraham Vs. Simon C. Abraham and another.
All these decisions are dealt on the point of presumption, rebuttable presumption and the burden of proof.
7. Perused the materials available on record.
8. My answer to the aforesaid points are as under:-
Point No.1 :- In the Negative Point No.2 :-As per the final order, for the following:-9
C.C.NO. 20298/2018 REASONS
9. Point No.1:- The complainant has filed this complaint alleging that, the accused has committed an offence punishable U/s.138 of N.I.Act. To substantiate the complainant case, the complainant has got filed his sworn statement which is being treated as his evidence wherein he has reiterated the contents of complaint about the accused raising hand loan of Rs.5 Lakhs in the month of October 2017 and towards the discharge of the said loan, he had issued the disputed cheque which is being dishonored for want of sufficient funds. Therefore, the complainant pleading that, the accused has committed an offence punishable U/s.138 of N.I.Act, seeks for the conviction of the accused. However, the accused denied the very claim of the complainant by taking the stand that, he never borrowed the loan amount of Rs.5 lakhs from the 10 C.C.NO. 20298/2018 complainant nor he has issued the disputed cheque towards the discharge of the loan amount to the complainant by taking the contention that, the complainant is stranger to him and that, he had raised loan of Rs.50,000/- from the father-in-law of the complainant by name Sri. Narasimha Murthy on 25.03.2016 and while borrowing the said loan, the said Narasimha Murthy had obtained two blank cheques. He had repaid the said amount to the said Narasimha Murthy and the said Narasimha Murthy had returned one cheque by assuring that, he would return the another cheque which is said to be misplaced. But, however rather returning the said cheque, he has got colluded with the present complainant and has filed the present complaint with an intention to gain unlawfully and thereby, questioning the financial capacity of the complainant, has prayed for his acquittal. 11
C.C.NO. 20298/2018
10. Having, heard and after perusal of the materials available on record with the decisions relied by the defence, at this stage it would be appropriate to extract U/s.118 & 139 of N.I.Act which would help this court to appreciate the rival claims of the parties in the proper manner.
Sec. 118 of the Act reads as thus, that every Negotiable Instrument was made or drawn for consideration and that, every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
Sec.139 of Negotiable Instrument Act provides for presumption infavour of PA holder. It reads like this, 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, or any debt or any other liability.
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C.C.NO. 20298/2018
11. A combined reading of the referred sections with the decisions relied by the complainant, it raises a presumption infavour of the holder of the cheque that, she has received the same for discharge in whole or in part of any debt or other liability. No doubt, the said presumptions of law are rebuttable in nature, the opponent can take probable defense in the scale of preponderance of probabilities to rebut the presumption available to the holder of the cheque. It is need less to say that, the evidence of the PW.1 can be rebutted even by effectively cross-examining him, rather entering the witness box.
12. So here, it is relevant to note that, whether the accused by cross examining the PW.1 and by adducing his evidence as DW.1 and also the evidence of the witnesses as DW.2 & DW.3, has really rebutted the presumption available under the law which requires due consideration. 13
C.C.NO. 20298/2018 Here, it cannot be denied that, the disputed cheque at Ex.P.1 does belongs to the accused and so also, the signature at Ex.P.1(a) appearing therein belongs to the accused. Here, though the accused do deny the signature appearing in the disputed cheque, but the endorsement issued by the bank would evidence that, the disputed cheque is not being dishonoured for the signature differs, but for the reason of the funds insufficient. So, here it could be inferred that, the signature appearing in the disputed cheque at Ex.P.1(a) does belongs to the accused and that, he had signed it. Infact, the accused has also not made any efforts to summon the bank manager and to establish the signature appearing therein does not belongs to him. But, rather by not making any effort merely taking a defence that, the signature does not belongs to him and it is being forged by the complainant appears to hold no force. 14
C.C.NO. 20298/2018 Therefore, as said above, an inference could be drawn that, the signature at Ex.P.1(a) does belongs to the accused.
13. The disputed cheque at Ex.P.1 being dishonored for want of sufficient funds is also not in dispute and that could also be gathered through Ex.P.2 the bank endorsement. It also cannot be denied that, on the dishonour of the disputed cheque at Ex.P.2, the complainant has got issued the demand notice dt:
10.05.2018 at Ex.P.3, but however the RPAD or the acknowledgment being not returned, the complainant has lodged a complaint to the postal department as per Ex.P.4 and the track consignment enclosed with the said document would indicate the notice is being delivered to the addressee on 23.05.2018. So, it could be said that, the complainant by issuing a demand notice has complied the mandatory provision as required U/s. 138 of N.I.Act. 15
C.C.NO. 20298/2018
14. Here, it is relevant to note that, the complainant by reiterating the averments of the complaint has deposed the manner how the accused had approached him for the hand loan of Rs.5 Lakhs to overcome his financial difficulties and he obliging his request, he having advanced Rs.5 lakhs. He also deposed the manner how the accused has issued the disputed cheque at Ex.P1 and it being dishonored for the reason of Funds Insufficient. As said above, though the accused do not dispute the fact of the disputed cheque does belongs to him, but he has categorically denied the loan transaction, the issuance of the cheque to the complainant and also, has questioned the very financial capacity of the complainant in advancing Rs.5 Lakhs. When, the rival claims of the parties are taken into consideration, it could be said that, heavy burden is casted upon the complainant to discharge the foremost 16 C.C.NO. 20298/2018 burden of the financial capacity in advancing the loan amount of Rs.5 Lakhs in cash to the accused. No doubt, no prudent man would issue the cheque unless there is liability under it, which also could be inferred in the case in hand, but when the accused has taken a specific contention that, he never issued the disputed cheque to the complainant, rather he had issued the cheque to the complainant's father-in-law Narasimha Murthy in some other loan transaction, certainly, it is the burden upon the complainant to establish his case by placing the probable evidence. So here unless and until the complainant establishes his financial capacity to advance Rs.5 lakhs to the accused, merely placing the disputed cheque at Ex.P.1 and the notice at Ex.P.3 without supporting any corroborative evidence, it cannot be said that, the disputed cheque is being issued by the accused only towards the 17 C.C.NO. 20298/2018 payment of the legal liability. In other words, unless and until the complainant establishes his financial capacity to advance Rs.5 Lakhs and the proof of the loan transaction, any stretch of evidence adduced on the point of Ex.P.1, in no way would support the complainant case.
15. So, keeping this fact in mind, if the complainant case is taken into consideration, as said above, he claims that, he has advanced Rs.5 Lakhs the loan amount in cash to the accused in the month of October 2016. But, to establish his financial capacity and also, to establish the loan transaction, except his self testimony evidence, he has not placed any corroborative evidence to appreciate his claim. Because, it is an admitted fact that, Rs.5 lakhs is not a meager amount. Here, though the complainant has not disclosed his employment in his complaint or in his affidavit evidence, but during the course of his cross examination, 18 C.C.NO. 20298/2018 he has categorically deposed that, he is working as a partner in a name board company on contract basis. No doubt, he claim that, he is working as a partner in the said name board company, but it is also an admitted fact that, he has not chosen to produce any document to establish his occupation nor of his income or the fact of the partnership as he claims. Even, he has not specifically pleaded as to what is his exact income and what is his savings.
16. Perhaps, he claims that, he had advanced the loan amount of Rs.5 Lakhs to the accused from the sale consideration received from the property sold which belongs to their family. He also deposes that, the said property was sold in the year 2010 for sale consideration of Rs.8 crore and after dividing the share between 24 share holders, he was handed over with Rs. 80 lakhs. He also, deposes that, he got his share of Rs.10 Lakhs in the year 19 C.C.NO. 20298/2018 2010 and Rs.40 Lakhs in the year 2020. He also deposes that, the tax is being deducted through his bank account and he would produce the document to that regard. So, here by gathering his evidence, it could be asserted that, he claims to have advanced the loan of Rs.5 Lakhs in the month of October 2016 not out of his savings, but he happens to have advanced from the sale consideration for the property sold as referred above. But, admittedly to appreciate this fact, again the complainant has not pleaded the exact location of the property, its measurement and also, has not produced any document to that regard. Either, he has produced the copy of the sale deed to establish that, the property was said to be sold for Rs.8 crore nor has produced his bank statement to establish that, he is being allotted with Rs.80 lakhs as claimed by him. Even for a moment, if it is construed that, he was 20 C.C.NO. 20298/2018 being allotted with the share of Rs.80 Lakhs, but his very admission would go to indicate that, he is being paid Rs.10 Lakhs in the year 2010 and Rs.40 lakhs in the year 2020. The present transaction as pleaded by the complainant is of the year 2016. It was incumbent upon him to produce some document to show that, he had sufficient funds in his account in the month of October 2016 which he alleged to have advanced, but admittedly he has not produced any documentary proof to appreciate his financial capacity when more particularity the accused has disputed his financial capacity. The I.T. return or the bank statement would have thrown some light on the issue . It would not be wrong to say that, not producing the I.T. returns and the bank statement of the particular year would be a fatal to the complainant case. So, here it could be said that, when the accused has raised the defence of the financial 21 C.C.NO. 20298/2018 capacity of the complainant and inspite of which, the complainant has not chosen to produce the document, it could be said that, there is some force in the argument of the defence.
17. It is an admitted fact that, the accused is no way related to the complainant through blood or relation, but he is a neighboring villager of the complainant's father-in- law Naraismha Murthy. Here, the complainant claims that, he has advanced the loan of Rs.5 Lakhs to the accused on the guarantee given by his father-in-law Narasimhamurthy. He also claims that, the accused had initially approached his father-in-law Narasimhamurthy for the financial help and after discussion, he had advanced the said amount to the accused. He also claims that, his father-in-law was the retired ASI from the police department. Here, it is relevant to note that, can a person without expecting any 22 C.C.NO. 20298/2018 documentary proof or getting the loan transaction reduced in writing, is it possible to advance a hand loan who is noway related to the family more particularly the hard cash of Rs.5 Lakhs. Neither, complainant or his father -in-law are the laymen, rather the complainant claims that, he is a partner and his father-in-law is a retired ASI from the police department. When the very fact would go to indicate that, having well knowledge, would they advance Rs.5 Lakhs without any document. Absolutely, I do not find any force in the argument of the complainant of he advancing Rs.5 Lakhs in hard cash to the accused. Perhaps, when the complainant claims that, his father in law had witnessed the loan transaction, nothing had prevented him to examine his father-in-law, when he was alive which also goes to the root of the case.
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18. It is also relevant to note that, even the complainant has categorically admitted that, he never visited the house of the accused and also, pleaded his ignorance of the family particulars of the accused. So, when the complainant has categorically admitted the fact of he not visiting the house of the accused and also, he pleads ignorance of the family particulars of the accused, he advancing Rs.5 Lakhs to the accused who is noway related to him appears not digestable. On the other hand, it indicates that, the defence raised by the accused that, he had raised hand loan of Rs.50,000/- from the complainant's father-in-law Narasimha Murthy and had handed over the disputed cheque with other cheque towards the security purpose appears to hold some force. The complainant has pleaded his ignorance about the said transaction and he also, pleads ignorance about the accused handing over the 24 C.C.NO. 20298/2018 disputed cheque to his father-in-law. The relevant admission would read like this, "ನಮ್ಮ ಮಾವ ಆರೋಪಿಗೆ 50 ಸಾವಿರಾರು ಮಾತ್ರ ಸಾಲ ಕೊಟ್ಟಿದ್ದರು ಎನ್ನುವುದು ಸರಿಯಲ್ಲ. ಸದರಿ ಸಾಲದ ಭದ್ರತೆಗಾಗಿ ನಿಪಿ.1 ಚೆಕ್ಕನ್ನು ನಮ್ಮ ಮಾವನಿಗೆ ಆರೋಪಿಯು ಕೊಟ್ಟಿದ್ದರು ಎನ್ನುವುದು ಗೊತ್ತಿಲ್ಲ." If really, the loan transaction was taken place between the complainant and the accused and that, the disputed cheque was issued towards the discharge of the legally enforceable debt, the complainant could have darely denied the issuance of the cheque to his father-in- law as claimed by the defence, rather he pleading his ignorance . When the very evidence of PW.1 appears to be contradictory to his case, again a serious doubt would create so far the transaction is concerned.
19. No doubt, the accused claims that, he had raised Rs.50,000/- from the complainant father-in-law and had repaid it and that, the said Narasimha Murthy had assured 25 C.C.NO. 20298/2018 to return back the disputed cheque and so also, the accused has not taken any efforts to take back the cheque, but the evidence of DW.2 & DW.3 would go to support the defence case of they witnessing the loan transaction between the said Narasimha Murthy and the complainant and the said Narasimha Murthy retaining the disputed cheque. If, the complainant had produced some documentary proof with regard to the financial capacity & so also, the loan transaction by examining his father-in-law Narasimha Murthy, then certainly the evidence of DW.2 & DW.3 would have surrounded with doubt and their evidence would have not rescued the defence stand. But, when the complainant has utterly failed to establish his case, certainly, the evidence of DW.2 & DW.3 coupled with a stand of DW.1 has to be accepted and it has to be construed that, the accused has rebutted the presumption. 26
C.C.NO. 20298/2018 When, the very evidence goes to indicate that, except the self testimony evidence of the complainant, there is no documentary evidence so as to support the complainant case, I do not find any ground to hold that, the complainant had the financial capacity so as to advance the loan amount of Rs.5 lakhs the hard cash to the accused and that, the accused had received the said amount without interest. Even, the complainant advancing the loan without expecting any interest also gives a serious doubt.
20. In this back ground, by considering the oral and documentary evidence available on record, it suffices that, except the self testimony evidence of the complainant, there is no documentary proof on record so as to establish his financial capacity to lend Rs.5 Lakhs to the accused, the loan transaction and that, the accused has issued the 27 C.C.NO. 20298/2018 disputed cheque at Ex.P.1 towards the discharge of the loan liability. Having, the complainant failed to establish all these aspects, I am of the considered view that, not only the complainant failed to establish his financial capacity in lending the loan amount of Rs.5 lakhs to the accused, but also failed to establish the loan transaction and so also, failed to establish that, it is a legally enforceable debt. In this back ground, it cannot be said that, the disputed cheque was issued towards the discharge of the legally enforceable debt. Therefore, point No.1 is answered in the Negative.
21. Point No.2:- For the reasons discussed in the point No.1, I proceed to pass the following :
ORDER Acting U/s.278(1) of BNSS -2023 (Old Correspondence No. 255(1) of Code of Criminal Procedure), the accused is acquitted 28 C.C.NO. 20298/2018 for the offence punishable under section 138 of the Negotiable Instruments Act.
The bail bond and surety bond furnished by the accused stands cancelled.
(Directly dictated to stenographer on computer, typed by her, revised by me and then pronounced by me in the open court on this the 4th day of September 2024). Digitally signed
JAI by JAI
SHANKAR J
SHANKAR Date:
J 2024.09.04
15:39:59 +0530
(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Sri. Anil Kumar List of exhibits marked on behalf of complainant:-
Ex.P1 : Original cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Bank Memo
Ex.P3 : Legal notice
Ex.P3(a) : Postal receipt
Ex.P4 : Letter issued by postal department
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List of witnesses examined on behalf of the accused:-
DW.1 : Sri. Nagaraju DW.2 : Sri. Nanjunda Bhovi DW.3 : Sri. Bengaluraiah
List of exhibits marked on behalf of the accused:-
Ex.D.1 : Bank Pass book
Digitally signed
JAI by JAI SHANKAR
SHANKAR J
Date: 2024.09.04
J 15:40:04 +0530
(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate, Bengaluru.
30 C.C.NO. 20298/2018