Bangalore District Court
Sri. B.Nagaraju vs Sri. Bheemappa on 9 June, 2020
1 C.C.No.22539/2018 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 9th day of June, 2020
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.22539/2018
Complainant : Sri. B.Nagaraju,
S/o. Late Balanna,
Aged about 40 years,
R/at No.57, 2nd Cross,
6th Main, Thyagarajanagara,
4th Block,
Bengaluru -560 028.
(By Sri. S.Narayana Murthy.,
Adv.,)
- Vs -
Accused : Sri. Bheemappa,
S/o. Eshwarappa,
Aged about 34 years,
R/at. Gandhinagar,
Tippaganahalli Post,
Chennagiri Taluk,
Davanagere District.
(By Sri. Lohith Kumar N.S., Adv.,)
Case instituted : 6.8.2018
2 C.C.No.22539/2018 J
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Acquitted
Date of order : 9.6.2020
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 is close relatives and he is doing Bangle and cosmetic business, by traveling place to place doing his business and by improving his business and constructing house in his village for that purchased vehicle in the year 2016 and also the Accused had approached him for hand loan of Rs.5 Lakhs, but as on the date of requesting by the Accused of Rs.5 Lakhs, he has not having such amount with him and he had agreed to pay the amount what ever the amount was requested by the Accused accordingly he had transferred a Rs.49,000/- on 10.2.2016, Rs.19,000/- transferred 3 C.C.No.22539/2018 J on 11.2.2016, on 4.5.2016 transferred of Rs.17,600/- on 10.5.2016 transferred Rs.23,750/- and on 8.6.2018 transferred of Rs.36,840/- in total, he had transferred Rs.1,46,190/- to the account of Accused and remaining amount of Rs.3,53,810/- was paid by him to the Accused, in the month of June 2016 and the Accused had availed hand loan of Rs.5 Lakhs from him after getting loan from him, the accused had agreed to pay the entire amount within one year and after completion of one year, he had visited the accused and to demanded to repay the hand loan of Rs.5 Lakhs for that, the Accused had requested some more time to repay the same, due to non getting of dues from the customers.
3. The complainant further contended that, in the end of December 2017, he met with the Accused and demanded the loan amount but again he requested the time to repay the amount in the month of February 2018, thereafter again he approached Accused in the month of March 2018 and requested him to pay the loan amount, on that day, the Accused did not paid the loan amount and expressed that, amount will be arranged in the 4 C.C.No.22539/2018 J month of June 2018 and had issued a cheque bearing No.863457 dated: 18.6.2018 drawn on State Bank of Mysore, Channagiri Branch, Channagiri. Thereafter he presented the said cheque for encashment through his banker, but the said cheque was returned dishonoured as "Insufficient Funds", vide bank Memo dated: 19.6.2018 thereafter he got issued legal notice to the Accused on 4.7.2018 through registered post and the said notice was received by him on 9.7.2018, after receiving the notice, the Accused neither paid the amount nor reply to the notice. Hence he has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
4. Before issuing process against the accused, the Complainant has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the averments of the complaint. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.11 i.e, Original Cheque, dated: 18.6.2018 is as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the 5 C.C.No.22539/2018 J accused as per Ex.P.1(a), the Bank memo as per Ex.P.2, five Bank Challans as per Ex.P.3 to P.7 respectively, the office copy of Legal Notice as per Ex.P.8, postal receipt as per Ex.P.9, postal acknowledgement as per Ex.P.10, complaint as per ExP.11 and signature of the complainant as per ExP.11(a).
5. Prima-facie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
6. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as he intended to set out his defence, the case came to be posted for the Cross-examination of complainant.
7. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been 6 C.C.No.22539/2018 J recorded. He has denied the incriminating evidence appearing against his and has chosen to lead his rebuttal evidence subsequently the Accused has examined as DW.1, during the course of cross- examination of PW.1 on behalf of the Accused 8 receipts (Challans) have been marked as per Ex.D.1 to D.8 and closed his side.
8. Heard by learned counsel for the complainant and the Accused and perused the written argument and the decision submitted by the learned counsel for the Accused i.e 1) (2009) 2 SCC 513 in case of Kumar Exports Vs. Sharma Carpets., 2) (2014) 2 SCC - 236 in cas of John K. Abraham Vs. Simon C. Abraham and another.,
3) (2015) 1 SCC 99 incase of K. Subramani Vs. K.Damodara Naidu; 4) (2013) 3 SCC 86 in case of Vijay Vs. Laxman and another., 5) 2016 SCC Online.Kar.6035 in case of Ramananda Rao Vs. Smt. Girija Kasbaker; 6) 2010 Crl.L.J.- 2159 incase of Mrs. Rosa Maria Fernandes Vs., Nauso N Kepkar; 7) 2012 (2) DCR 368 in case of Pawan Singhal Vs. Gauri Shankar Deora & Anr., ; 8) (2013) 1 SCC - 327 in case of Reverend Mother 7 C.C.No.22539/2018 J Marykutty; 9) Crl.Appl.No. 636/2019 in Basalingappa Vs. Mudibasappa; 10) (2008) 4 SCC 54 in case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde.
9. On the basis of complaint, evidence of complainant and documents the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued cheque bearing No. 863457 dated:
18.6.2018 for Rs. 5 Lakhs drawn on State Bank of Mysore, Channagiri Branch, Channagiri to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 19.6.2018 and the complainant issued legal notice to the accused on 4.7.2018 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?8 C.C.No.22539/2018 J
10. The above points are answered as under:
Point No.1: In the Negative Point No.2: As per final order for the following:
..
REASONS
11. Point No.1 : Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes three conditions for prosecution of an offence which are as under:
9 C.C.No.22539/2018 J1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' ' endorsement' and holder in course of 10 C.C.No.22539/2018 J Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
13. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein the complainant has reiterated the entire averments of the complaint. The complainant/PW1 testified that, he and Accused are close relatives and Accused doing bangle and cosmetic business by traveling place to place, for improvement of his business and constructing house in his village an din order to purchase a vehicle, has approached him in the year 2016 and requested for hand loan of Rs. 5 Lakhs but as on the date of request made by the Accused he have not having such amount with him 11 C.C.No.22539/2018 J but agreed to pay the amount what ever requested by the Accused, accordingly he transferred Rs.49,000/- on 10.2.2016, Rs.19,000/- on 11.2.2016, Rs.17,600/- on 4.5.2016, Rs.23,750/= on 10.5.2016 Rs. 36,840/- on 8.6.2018 in total an amount of Rs.1,46,190/- to the account of Accused i.e. account bearing No. 64101184634 State Bank of Mysore Channagiri Branch, and remaining amount of Rs. 3,53,810/- was paid by him by way of cash in the month of June 2016 and the Accused has availed in total an amount of Rs. 5 Lakhs from him and agreed to pay the entire amount within one year. The complainant/PW.1 further testified that, after completion of one year he demanded the Accused to repay the hand loan of Rs.5 Lakhs, for that he requested some more time to repay and in the end of December 2017, and demanded the loan amount again Accused requested time to repay the loan amount till the month of February 2018, thereafter again he requested the Accused to pay the hand loan in the month of March 2018 on that day the Accused agreed to arrange the amount in the 2nd week of June 2018 and also issued a cheque in question i.e Ex.P.1 in his favour by assuring to 12 C.C.No.22539/2018 J honour the same. The complainant/PW.1 further testified that, as per the request of the Accused he has presented the said cheque through his banker and said cheque was returned with shara of "Insufficient Funds" on 19.6.2018, thereafter he got issued legal notice to the Accused on 4.7.2018 through RPAD and said notice was received by the Accused on 9.7.2018 even after receipt of notice the Accused neither paid the amount nor replied to his notice.
14. In support of his oral evidence the complainant has produced 11 documents which are marked as Ex.P.1 to P.11 i.e, Original Cheque, dated: 18.6.2018 is as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank memo as per Ex.P.2, five Bank Challans as per Ex.P.3 to P.7 respectively, the office copy of Legal Notice as per Ex.P.8, postal receipt as per Ex.P.9, postal acknowledgement as per Ex.P.10, complaint as per ExP.11 and signature of the complainant as per ExP.11(a).
13 C.C.No.22539/2018 J15. In the present case, there is no dispute between the complainant and accused in respect of their acquaintance. It is also not in dispute by the accused that, the cheque in dispute i.e., Ex.P.1 belongs to his account and signature appearing on Ex.P.1 at Ex.P.1(a) is also that of his signature and the said cheque has been presented to the bank for encashment and returned dishonoured as "Insufficient Funds" is also not in dispute. As a matter on record proved by return memo i.e., Ex.P.2 issued by the accused banker dated 19.6.2018, therefore it is a matter on record and has been proved that, cheque in question was presented within its validity period and dishonoured as per bank memo. In relation to the service of legal notice, the Accused has not disputed hence as per Ex.P.10 i.e. postal acknowledgement, the legal notice issued by the complainant i.e Ex.P.8 served on the Accused.
16. In the present case, the accused has taken specific defence that, he has denied the entire claim of the complainant that, he has received a loan of Rs.5 Lakhs from the complainant as stated by him 14 C.C.No.22539/2018 J and also issuance of the cheque in question i.e. Ex.P.1 towards discharge of the said loan amount. It is also the specific defence of the Accused that, he has admitted the receipt of amount of Rs.1,46,190/- from the complainant on various dates for which the complainant has demanded the documents pertains to his house property but he told that has no such property documents, for that complainant insisted and opened the bank account in his name and has collected his blank signed cheque and on demand promissory note. It is also the defence of the Accused that, though he has repaid the above said entire amount to the complainant by transferring to his bank account despite of it the complainant by misusing his blank cheque has filed this complain against him.
17. Now, the initial burden is on the complainant to substantiate his claim i.e. as per his claim he has paid an amount of Rs.5 Lakhs to the Accused as a hand loan. According to the averments of the complaint and also evidence of the complainant, the complainant out of loan amount of Rs. 5 Lakhs has paid an amount of Rs.1,46,190/- on 15 C.C.No.22539/2018 J various dates by way of transferring the said amount to the account of the Accused i.e .account bearing No. 64101184634 State Bank of Mysore, Channagiri Branch and remaining amount of Rs.3,53,810/- paid by him by way of cash in the month of June 2016. In order to substantiate the above said claim the complainant has produced bank challans which are at Ex.P.3 to P.7. The perusal of Ex.P.3 to P.7 it appears that, as per Ex.P.3 an amount of Rs.49,000/- deposited to the account of the Accused on 10.2.2016 and as per Ex.P.4 an amount of Rs.19,000/- deposited to the account of the Accused on 11.2.2016, and as per Ex.P.5 an amount of Rs.17,600/- deposited to the account of the Accused on 4.5.2016, as per Ex.P.6 an amount of Rs.23,750/- deposited to the account of the Accused on 10.5.2016, as per Ex.P.7 an amount of Rs.36,840/- deposited to the account of the Accused on 8.6.2016. On combine reading of Ex.P.3 to P.7 it goes to show that, an amount of Rs.1,46,190/- has been deposited to the account of the Accused, the Accused has not disputed receipt of Rs.1,46,190/- from the complainant but he has disputed receipt of remaining alleged amount of 16 C.C.No.22539/2018 J Rs.3,53,810/- by way of cash from the complainant. It is also the defence of the Accused that, he has repaid said amount i.e. more than the said amount to the complainant despite of it the complainant has misused the blank signed cheque which was collected by him at the time of lending a loan of Rs.1,46,190/-. Hence, it is to be see that, whether the complainant has proved that, he has paid an amount of Rs.3,53,810/- by way of cash to the Accused . In this regard, the complainant except the above bank challans i.e Ex.P.3 to P.7 has not produced any other documents to show that, as on the date or prior to the lending of Rs. 3,53,810/- by way of cash to the Accused he was having sufficient funds either in his account or any other documents to that effect . It is important to note here that, as per Ex.P.3 to P.7 the complainant has transferred a maximum amount of Rs.49,000/- to the account of the Accused on 10.2.2016 and final payment made by the Accused through the bank was on 8.6.2018 i.e. an amount of Rs.36,840/- , hence it goes to show that, as per the version of the complainant since from the date of first payment i.e. 10.2.2016 and final transfer i.e. on 8.6.2018, the complainant was 17 C.C.No.22539/2018 J not having the amount in his bank account more than Rs.50,000/-, in such circumstances a serious doubt arises in the mind of the court about the alleged payment of Rs.3,53,810/- in the month of June 2016 by the complainant. If really the complainant was having huge amount of Rs.3,53,810/- with him in the month of June 2016 what prevented him to transfer the said amount to the account of the Accused as admittedly the complainant has transferred final transfer amount of Rs.36,840/- on 8.6.2018 i.e., the said amount has been transferred after alleged cash payment of Rs.3,53,810/- , in such circumstances an adverse inference can be drawn against the complainant that, if really the complainant having or possessed an amount of Rs.3,53,810/- in the month of June 2016 definitely he would have transferred the said amount to the account of the Accused as transferred by him the remaining amount of Rs.1,46,190/- on various dates, therefore the claim made by the complainant that, he has paid an amount of Rs.3,53,810/- by way of cash in the month of June 2016 appears to be doubtful and complainant has not proved the said fact by producing cogent and 18 C.C.No.22539/2018 J convincible evidence. It is also important to note here that, as per the averments of the complaint and evidence of the complainant the complainant has transferred an amount of Rs.1,46,190/- to the account of the Accused on 5 various dates but the complainant has failed to explain and produce the documents how and where he has collected such huge amount of Rs.3,53,810/- and has paid to the Accused and even the complainant has not stated on which particular date, the said amount has been paid to the Accused by way of cash, hence on this count also a serious doubt arises about alleged amount of Rs.3,53,810/- paid to the Accused by way of cash.
18. It is relevant here to mention that, it is the specific claim of the complainant that, he has lent an amount of Rs.5 Lakhs to the Accused by way of bank transfers and also by way of cash for the improvement of business, constructing of house of the Accused and purchase of vehicle, but the complainant either in his complaint or in his evidence nowhere stated whether the said loan amount carries interest or not or whether it is 19 C.C.No.22539/2018 J interest free loan and if it is interest free loan for what reason the interest has not been charged, therefore in the absence of such pleadings or averments a serious doubt arises with regard to lending of loan amount without charging the interest, as no person shall lend the huge amount as interest free loan unless there are specific reasons or circumstances warrants for not charging the interest. In this case, the complainant is silent on the part of charging of interest, on this count also a serious doubt arises with regard to alleged loan transaction between the complainant and the Accused.
19. It is also important to note here that, according to the complainant the Accused approached him in the year 2016 and requested to lend loan of Rs.5 Lakhs at that time he did not possess such amount to lend the same to the Accused , hence it goes to show that, as on the date of alleged approach of the Accused admittedly the complainant did not possess such amount. It is interesting to mention here that, the complainant for the reasons best known to him has not stated the 20 C.C.No.22539/2018 J particular date or week on which the date or week the Accused approached him seeking alleged loan of Rs.5 Lakhs , on the contrary he stated that, in the year 2016 the Accused had approached him for hand loan of Rs.5 Lakhs, the conduct of the complainant in non disclosure of the particular date or week on which the Accused approached him itself suffice to say that, if really the Accused approached the complainant for particular date, definitely the complainant has mentioned the particular date of approach of the Accused either in his complaint or in his evidence, on this count also a serious doubt arises in the mind of the court about the transaction in question. The complainant in his complaint and evidence stated that, he has transferred an amount of Rs.49,000/- on 10.2.2016, RDs.19,000/- on 11.2.2016, Rs.17,600/- on 4.5.2016, Rs.23,750/- on 10.5.2016, Rs.36,840/- on 8.6.2018 in total Rs.1,46,190/- transferred to the account of the Accused, but the complainant nowhere stated whether on particular date of transfer or prior to the date of transfer the Accused approached him for transfer of the said amount or not. It is also important to mention here that, the 21 C.C.No.22539/2018 J complainant has not stated either the date or week on which day or in the week he has lend the remaining alleged amount of Rs.3,53,810/- by way of cash, but only stated that, he has paid the said amount in the month of June 2016 but has not mentioned the particular date or week that itself goes to show that, the complainant has suppressed the true facts as if really the complainant has paid Rs.3,53,.810/- by way of cash to the Accused, definitely he would have transferred the said amount to the account of the Accused instead of paying the same by way of cash.
20. The complainant/PW.1 in his cross- examination has also admitted that, at the time of paying the cash amount of Rs.3,50,000/- one Sri. Ashok and Sri.Srinivas who is the relative of the Accused were present and have witnessed the payment of Rs.3,50,000/- made by him to the Accused but at the same time in his further cross- examination admitted that, he has paid the cash amount of Rs.3,50,000/- to the Accused in the presence of his owner under whom he was working and at the time of cash payment of Rs.3,50,000/-
22 C.C.No.22539/2018 Jhe was having half of the said amount in his bank account and the remaining half of the amount was taken from his owner and total amount of Rs.3,50,000/- paid to the Accused . But if really the complainant was having half of the amount of Rs.3,50,000/- in his account defiantly he would have produced the document to that effect, but no such document have been produced before the court. Apart from that, the complainant one breath contends that, at the time of handing over the cash of Rs.3,50,000/- to the Accused one Sri. Ashok and Sri. Srinivas were present and another breath he contends that, at the time of handing over the cash of Rs.3,50,000/- his owner under whom he was working was present , hence the two versions of the complainant itself sufficient to held that, the complainant is not firm to say who were present at the time of alleged cash payment made by him, if really the complainant paid an amount of Rs.3,50,000/- or Rs.3,53,810/- to the Accused by way of cash, definitely he would have stated the name of the persons or person who were /was present at the alleged time of payment , in such circumstances a serious doubt arises in the mind of 23 C.C.No.22539/2018 J court to accept the claim made by the complainant that, he has paid a cash amount of Rs.3,53,810/- to the Accused by way of cash. In addition to that, the complainant in order to prove the cash amount paid by him to the Accused by way of cash definitely he would have examine the persons i.e. Sri.Ashok and Sri.Srinivas or his owner as admitted by him in his cross-examination to prove the fact that in their presence he has paid an amount of Rs.3,53,810/- to the Accused by way of cash but the complainant has not chosen to examine any of the witnesses who were witnessed the alleged cash payment made by him to the Accused for the reasons best known to him, in such circumstances also a serious doubt arises in the mind of court with regard to cash payment of Rs.3,53,810/- made to the Accused as contended by in his complaint.
21. It is important to refer certain admissions of the complainant/PW.1 admitted in his cross- examination i.e. the complainant has admitted that, the Accused had availed a loan of Rs.2,50,000/- from him in the year 2015 and the entire amount of Rs.2,50,000/- was repaid to him by the Accused 24 C.C.No.22539/2018 J prior to one week from the date of borrowing of loan in question. It is relevant here to mention that, if really the Accused has borrowed an amount of Rs.2,50,000/- and returned to him prior to the borrowing of loan transaction in question, there is no hindrance for the complainant to disclose the said fact either in his complaint or in his evidence but for the first time the complainant in his cross- examination admitted that, the Accused borrowed loan of Rs.2,50,000/- in the year 2015 and has repaid the entire loan amount to him prior to one week from the date of borrowal of the amount in question, in such circumstances also a serious doubt arises with regard to earlier alleged transaction as admitted by the complainant. It is a also relevant here to refer the admissions of the complainant that, he has admitted that, on 9.2.2016 has received an amount of Rs.25,000/-, on 1.3.2016 has received an amount of Rs.56,000/-, on 2.3.2017 has received an amount of Rs.40,000/-, on 27.3.2017 has received an amount of Rs.28,000/-, on 7.4.2017 has received an amount of Rs.14,000/-, on 29.6.2017 has received an amount of Rs.15,000/-, on 21.6.2016 has received an 25 C.C.No.22539/2018 J amount of Rs.3,500/- and on 22.9.2017 has received an amount of Rs.20,000/- by way of transfer to his account and also has not denied the suggestion that, the Accused has transferred an amount of Rs.15,000/- and Rs.18,000/- from his SBI AIM to his account in the year 2017. Hence, the above admissions of the complainant makes it clear that, if really the Accused had availed a loan of Rs.2,50,000/- from him during the year 2015 and has paid entire amount prior to the one week from the date of borrowal of the loan in question, the Accused ought not have been paid the amount after one week from the date of borrowal of the loan in question as admitted by the complainant in his cross-examination, but the complainant himself admitted that, even after alleged first payment made by him in the loan transaction in question i.e. 10.2.2016 he has received the amount from the complainant on various dates after 10.2.2016 as admitted by him in the above i.e. he has admitted that, the Accused has transferred the amount to him on 1.3.2016, 2.3.2017, 27.3.2017, 7.4.2017, 29.6.2017, 22.9.2017, therefore the complainant has suppressed the real facts regarding repayment 26 C.C.No.22539/2018 J made by the Accused in respect of the loan amount borrowed by him as admitted in his defence and the complainant was claimed stating that, the Accused has borrowed a loan of Rs.5 Lakhs from him during the year 2016 and out of the said loan amount has paid Rs.1,46,190/- by way of bank transfers and deposits and remaining balance amount of Rs.3,53,810/- by way of cash. In addition to that, as per the averments of the complaint and evidence of the complainant according to the complainant, he has lent alleged loan of Rs.5 Lakhs to the Accused by way of bank transfers, deposits and by way of cash on different dates during the year 2016, it appears that, the very fact that, the figure shown by the complainant at para No. 3 of his complaint i.e. Rs.49,000/- on 10.2.2016, RDs.19,000/- on 11.2.2016, Rs.17,600/- on 4.5.2016, Rs.23,750/- on 10.5.2016, Rs.36,840/- on 8.6.2018 in total Rs.1,46,190/- transferred to the account of the Accused, that itself creates a serious doubt in the mind of the court that, generally no person or common man would ask for the loan of Rs.19,000/-, Rs.17,600/- 23,750/- etc., like unless there are some special reasons from the 27 C.C.No.22539/2018 J same and the complainant has not stated the specific reasons of transfer of the alleged amounts out of Rs.5 Lakhs by way of installments i.e., by way of transfer, deposit and by way of cash as alleged by him in his complaint, on this count also a serious doubt arises in respect of transaction in question took between the Accused and the complainant as alleged by the complainant.
22. It is true that, in the present case the complainant has produced oral and documentary evidence i.e. Ex.P.1 to P.11, out of them Ex.P.1 to P.10 makes it clear that, the cheque in question i.e Ex.P.1 is issued by the Accused and signature thereon is that of the Accused and the said cheque was presented by the complainant and it was returned dishonoured with an endorsement of "Funds Insufficient" and thereafter he got issued legal notice to the Accused and same was served on him, therefore the complainant has discharged his initial burden by complying the mandatory provisions of Sec.138 of N.I. act. It is true that, a presumption can be drawn in favour of the complainant U/s.118 and 139 of the N.I. Act but 28 C.C.No.22539/2018 J the said presumption are rebuttable presumptions and are not conclusive one, this preposition of law has been laid down by Hon'ble Apex court of India and High Court of Karnataka in catena of decisions. It is also settled law that, a presumption can be drawn in favour of the complainant but consequently it is for the Accused to rebut the said presumption either only on the basis of materials produced by the complainant even without entering into the witness box but the Accused has to rebut the said presumption by producing cogent and convincible evidence. In the present case in order to rebut the presumption available infavour of the complainant, the Accused himself examined as DW.1. the Accused in his defence evidence has specifically stated that, Complainant is the son of his elder sister and he has borrowed an amount of Rs.1,46,190/- on installment basis for that, the complainant insisted him to give his house property documents but he told him that, he does not have such documents, thereafter complainant insisted him and opened a bank account and collected a blank signed cheque from him and the said cheque is in question i.e Ex.P.1 and the complainant has also collected 29 C.C.No.22539/2018 J signed On demand Promissory note from him. The Accused/DW.1 has also deposed that, he has repaid the entire amount borrowed from the complainant but also paid more than the amount i.e Rs.50,000/- additional amount to the complainant by way of transfer to his bank account and has produced the receipts to that effect which are at Ex.D.1 to D.8.
23. It is relevant here to refer the admissions of the complainant in his cross-examination i.e. the complainant in his cross-examination at page No.4 has clearly admitted that the Accused had transferred an amount of Rs.25,000/- on 9.2.2016 amount of Rs.5,600/- on 1.3.2016, amount of Rs.40,000/- on 2.3.2017, amount of Rs.28,000/- on 27.3.2017, amount of Rs.14,000/- on 7.4.2017, amount of Rs.15,000/- on 29.6.2017, amount of Rs.3,500/- on 21.6.2016, and amount of Rs.20,000/- on 22.9.2017 to his bank account . The complainant has also admitted that, the as per the Ex.D.1 to D.8 receipts the Accused has transferred the above said amount to his bank account. The complainant has also not denied that, the Accused had transferred an amount of 30 C.C.No.22539/2018 J Rs.15,000/- and Rs.18,000/- from SBI ATM to his account during the year 2017. Hence, the above admissions of the complainant makes it clear that, the complainant himself admitted that, the Accused had transferred or deposited the above said amounts on various dates as per Ex.D.1 to D.8 and also during the year 2017 i.e. the total amount of Rs.1,84,100/- deposited by the Accused to the account of the complainant. If really the Accused has not repaid the entire loan amount i.e. more than the amount what he has received as per his defence, definitely the complainant would have denied the deposits or transfer made by the Accused to his account, on the contrary the complainant has clearly admitted about the receipt of the amount of Rs.1,84,100/- on various dates as per Ex.D.1 to D.8, this fact has clearly corroborates the defence of the Accused that, whatever the loan amount i.e. Rs.1,46,190/- has been repaid by the Accused.
24. The complainant in his cross-examination has stated that, whatever the amount deposited or transferred by the Accused to his account i.e. as per Ex.D.1 to D.8 pertains to the loan amount borrowed 31 C.C.No.22539/2018 J in the year 2017 but not pertains to the transaction in question. If really the complainant lend a loan amount to the Accused prior to the transaction in question i.e. in the year 2017 and as per his own admission the entire loan amount has been repaid by the Accused prior to the one week from the date of receipt of the loan amount i.e. transaction in question, if that is the true fact then as per the say of the complainant the entire alleged loan amount borrowed by the Accused in the year 2017 should have been paid by the Accused prior to the loan amount borrowed by him in the present case, but as per the Ex.D.1 to D.8 the amount transferred by the Accused appears to be after the alleged loan amount lend by the complainant in the present case that is the amount transferred by the Accused are almost in the year 2017, in such circumstances, it can be held that, the complainant only in order to avoid admitting of truth and defence of the Accused, he is intentionally and falsely deposing before the court that whatever the payments made by Accused are not pertains to the present transaction in question, on the contrary Ex.D.1 to D.8 makes it clear that, the Accused has repaid the amount borrowed from 32 C.C.No.22539/2018 J the complainant as per his defence. It is also relevant here to refer the admissions of the complainant at para No.6 in page No.5 of his cross- examination that, the complainant has clearly admitted that, he has credited an amount of Rs.49,000/- to the account of the Accused on 10.2.2016 out of the loan amount of Rs.50,000/- though he has denied has not taken an amount of Rs.1,000/- towards interest of the said amount and an amount of Rs.19,000/- credited to the account of Accused on 11.2.2016 out of loan amount of Rs.20,000/- though he has denied that, has deducted Rs.1,000/- towards interest and an amount of Rs.17,600/- credited to the account of Accused on 4.5.2016 out of loan amount of Rs.20,000/- though he has denied that, the said amount has been deposited by deducting the interest has credited the said amount and an amount of Rs.23,750/- credited to the account of Accused on 10.6.2016 out of loan amount of Rs.25,000/- though he has denied that, the said amount has been deposited by deducting the interest and an amount of Rs.36,840/- credited to the account of Accused on 8.6.2018 out of loan amount of 33 C.C.No.22539/2018 J Rs.40,000/- though he has denied that, the said amount has been deposited by deducting the interest. Hence, the said admissions makes it clear that, the complainant has admitted the lending of loan amount Rs.1,46,190/- to the Accused on installment basis by deducting the interest and credited the said amount to the account of the Accused, no doubt the complainant has denied that, he has not credited the loan amount to the account of the Accused by deducting the interest but the very conduct of crediting the amount in that fashion may draw an inference against the complainant that, complainant might have credited the loan amount to the account of the Accused by deducting the interest. If really the complainant has not received the interest amount as stated by him he would not have lend the loan amount of Rs.49,000/-, Rs.19,000/- Rs.17,600/- Rs.23,750/- etc., to the Accused, therefore on this count also the admissions made by the complainant corroborates the defence of the Accused that, the complainant has lent an amount to Rs.1,46,190/- to the Accused by way of transfer to the account of the Accused and inturn the Accused has repaid the entire amount 34 C.C.No.22539/2018 J and also excess amount to the complainant which is evidenced by documents i.e. Ex.D.1 to D.8 receipts as admitted by the complainant.
25. It is also important to note here that, as per the defence of the Accused the complainant had collected his signed blank cheque and blank signed On Demand stamp paper at the time of lending of Rs.1,46,190/- and he has repaid the entire said amount to the complainant as per Ex.D.1 to D.8 receipts by way of transferring the amounts to the account of the complainant. The complainant has also admitted receipt of the amount as per Ex.D.1 to D.8 and in his cross-examination has also admitted that, at the time of lending of the loan amount to the complainant he has taken signature of the Accused on two rupees stamp paper but he has stated that, the said stamp paper has been executed by the Accused for having receipt of loan amount of Rs.5 Lakhs but no such document or stamp paper has been produced by the complainant to show that, the Accused has executed stamp paper for having receipt of Rs.5 Lakhs loan amount and even it is not his case that, the Accused has executed stamp 35 C.C.No.22539/2018 J paper in his favour for having receipt of Rs.5 Lakhs as a loan amount, in such circumstances, in the absence of document and on the admission of the complainant an adverse inference can be drawn against the complainant that, as per the defence of the Accused he might have collected blank signed cheque as well as blank signed stamp paper from the Accused, therefore the admissions of the complainant corroborates the defence of the Accused that, at the time of lending of the amount of Rs.1,46,190/- the complainant might have collected the blank signed cheque. Therefore for the said reasons, it can be held that, the Accused has successfully rebutted the fact that, how the cheque in question has been entered into the hands of complainant.
26. The Accused in his evidence specifically stated that, complainant has collected his signed blank cheque and on demand stamp paper at the time of lending of loan amount of Rs.1,46,190/- and the said cheque is subject cheque in question . The complainant during the course of his cross- examination has admitted that, the Accused has 36 C.C.No.22539/2018 J issued the cheque in question in his favour and denied the suggestion that, the contents of the cheque filled in by him but in further he admits that, the Accused has not written the contents of the cheque in question before him and also admitted that the has studied up to 7th to 8th std. On combined reading of the above admissions of the complainant and bare perusal of Ex.P.1 cheque and its contents it appears that, the signature found on Ex.P.1 cheque and the other contents which are written on Ex.P.1 are appears to be in different style and the signature made by the Accused i.e at Ex.P.1(a) is in the Kannada language and the other contents of the cheque are filled in English language, therefore an inference can be drawn on the basis of the admissions of the complainant and contents of Ex.P.1 cheque and signature found on the cheque the contents of the cheque might have been written by somebody i.e. other than the complainant as admittedly as per the own admission of the complainant the contents of the cheque have not been written in his presence.
27. It is relevant here to refer the decision of 37 C.C.No.22539/2018 J Hon'ble High Court of Karnataka reported in LAWS (KAR) 2018 2 208 in the case of Branch Manager Pca and R.D. Bank Ltd., Belthanangady Vs. Suresh Ganapathi Das., wherein the Hon'ble High Court of Karnataka Held that " if on the date of cheque liability or debt exists or the amount has become legally recoverable then Sec.138 is not attracted and not other wise and also held that, cheque in question was given in blank as security at the time of availing the loan and there was not other liability existing at the time of issuance of the cheque".
28. Now let us examine as per the allegations made by the complainant whether the Accused has committed an offence punishable U/s.138 of N.I. Act. On plain reading of the Sec. 138 of N.I. act it appears that the cheque presented for encashment should be one for payment in full or part or debt or liability. The essential ingredient of the offence that the cheque should re-present the same amount or part of it due to payee as on the date of presentation of the cheque for collection or encashment. Therefore in order to attract an offence U/s.138 of N.I. act, the 38 C.C.No.22539/2018 J cheque should be issued by the drawer it should be either one for full payment or part of the debt due to payee. Even for sake of discussion, if it is assumed that, the complainant has paid Rs.5 Lakhs as a loan amount to the accused but as admitted by the complainant himself he has received the amounts or payments made by the Accused by way of transferring to his account as per the Ex.D.1 to D.8 receipts an amount to Rs.1,51,100/- has been received by the complainant, no doubt the complainant contends that, the said payments made by the Accused are pertains to the earlier loan transaction but the complainant has not proved that, the said payments are pertains to the earlier loan transaction not pertains to the present transaction in question, therefore for sake of discussion even if it is assumed that, the Accused has received Rs.5 Lakhs from the complainant, the complainant should have deducted the amount which has been credited to his account and has to claim the remaining amount from the Accused, hence as per the admitted fact by the complainant it appears that, the debt of Rs.5 Lakhs was not in existence as on the date of alleged issuance of the 39 C.C.No.22539/2018 J cheque or the cheque in dispute covered the amount more than the alleged amount due by the Accused, in such circumstances it can be held that the amount claimed in Ex.P.1 cheque is more than what the alleged loan amount advanced by the complainant on this count also it can be held that, there is no legally enforceable debt equal to the cheque amount as on the date of its presentation, the presumption U/s.139 of N.I. Act, cannot be drawn in favour of the complainant, even though the cheque in dispute stands dishonour for the reason of "Funds insufficient" . thus for the above said reasons the defence taken by the Accused appears to be plausible defence and complainant not able to prove that, he is entitled presumption U/s.118A and 139 of N.I. Act and it can be held that, the offence U/s.138 of N.I.Act would not be attracted as alleged by the complainant in this case.
29. Therefore, on careful scrutiny of over all evidence of the complainant and Accused as it is already held and come to the conclusion that, the complainant has miserably failed to prove that he has lend an amount of Rs.5 Lakhs/= to the Accused 40 C.C.No.22539/2018 J by way of transfer and cash and in order to discharge of the said loan amount the Accused has issued the cheque in question i.e., Ex.P.1. No doubt, some discrepancies have been elicited by the complainant during the cross-examination of Accused but there are no proof regarding the same, however when the complainant himself has failed to establish his case beyond all reasonable doubt, he cannot be permitted to find fault in the defence of the Accused. Hence the standard of proof is expected from side of the complainant is proof beyond all reasonable doubt and in the present case complainant has failed to prove his case beyond all reasonable doubt on the contrary the Accused has successfully rebutted the presumption available infavour of the complainant U/s.118 and 139 of N.I. Act by taking reasonable and probable defence, accordingly for the above said reasons this point is answered in the 'Negative'.
30. Point No.2: In the light of discussions made at above point and for the said reasons this point is answered in the negative and it is just and proper to pass the following :-
41 C.C.No.22539/2018 JORDER The complaint U/s.200 of Cr.P.C. filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C. the accused is acquitted for the offence punishable U/sec.138 of N.I.Act. Personal bond executed by the Accused stands cancelled.
The cash security of Rs.5,000/= which was deposited by the Accused vide order dated 17.10.2018 is ordered to be refunded to him (if not lapsed or forfeited) after the expiry of the appeal period.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 9th day of June, 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.B.Nagaraju;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque;
Ex.P-1(a) : Signature of the Accused;
42 C.C.No.22539/2018 J
Ex.P-2 : Bank Memo
Ex.P-3 to P7 : Bank challans;
Ex.P-8 : Office copy of the Legal Notice;
Ex.P-9 : postal receipt
Ex.P-10 : Postal Acknowledgement;
Ex.P.11 : complaint;
Ex.P.11(a) : Signature of the complainant;
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri. Bheemappa;
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 to D.8 : 8 receipts ( Challans);
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
43 C.C.No.22539/2018 J
9.6.2020
As per the Notification of Hon'ble
High Court i.e. modified Standard
Operating Procedure (SOP) -
District Judiciary dated: 28th May
2020 and as per the directions of
Hon'ble High Court of Karnataka
dated: 3.5.2020 i.e. para No.31,
today the case is posted for
Judgment. Counsel for
complainant and Accused are
called out, Both counsels for
Complainant and Accused are
present.
Judgment pronounced in the open court vide separate order.
ORDER The complaint U/s.200 of Cr.P.C.
filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C. the accused is acquitted for the offence punishable U/sec.138 of N.I.Act.
Personal bond executed by the Accused stands cancelled.
44 C.C.No.22539/2018 JThe cash security of Rs.5,000/= which was deposited by the Accused vide order dated 17.10.2018 is ordered to be refunded to him (if not lapsed or forfeited) after the expiry of the appeal period.
XVI ACMM, B'luru.