Bangalore District Court
Sri. Niranjana.B.R vs Smt.N. Shivamma on 12 August, 2020
1 C.C.No.22140/2016 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 12th day of August, 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.22140/2016
Complainant : Sri. Niranjana.B.R,
S/o. Rajanna,
C/o. Chandramma,
Aged about 28 years,
Residing at No.120,
Skanda Apartment 2nd Floor,
Opp. H.J.M. Public School,
Havalahalli,
Bengaluru -560 026.
(By Sri. Manu Shankar and
others., Adv.,)
- Vs -
Accused : 1. Smt.N. Shivamma,
W/o. Seethappa,
Major,
2. Mr.Anil Kumar. S,
S/o. Seethappa,
Major,
Both are R/at No.12/1,
2nd Main Road,
Marenahalli,
2 C.C.No.22140/2016 J
Vijayanagar,
Having PID No.35-9-12/1,
BBMP Ward No. 35,
Bengaluru - 560 040.
(By Sri. K.Sridhara and
Associates., Advs.,)
Case instituted : 12.7.2016
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused No.1 and 2 are
acquitted
Date of order : 12.8.2020
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, he and the Accused persons are known to each other since from several years, being friends, the Accused approached him and expressed her financial crises with respect, her personal problems and requested for a hand loan of Rs.12 Lakhs, accordingly he paid a sum of Rs.12 Lakhs by way of 3 C.C.No.22140/2016 J cash on 5.4.2016, due to the repayment of said amount, Accused have issued a cheque bearing No. 434787 drawn on HDFC Bank Ltd., Atpar Branch, Magadi Chord Extension, Vijayanagar Club road, Bengaluru dated: 2.5.2016 for an amount of Rs.12 Lakhs in his favour and he presented the said cheque for encashment through his banker, the same came to be returned dishonoured as "Account Closed" vide bank memo dated: 4.5.2016, thereafter he got issued legal notice dated: 2.6.2016 by RPAD, calling upon them to pay the cheque amount to him within 15 days from the date of receipt of the notice and the Accused have received the notice on 3.6.2016, still the Accused did not paid the cheque amount within stipulated period and have not replied to the same. Hence he has filed this present complainant against the Accused No.1 and 2 for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused No.1 and 2, the Complainant has filed his affidavit- in-lieu of his sworn statement, in which, he has reiterated the averments of the complaint. In support 4 C.C.No.22140/2016 J of his sworn statement, P.W.1 has relied upon the documentary evidence as per Ex.C.1 to C.7 i.e, Original Cheque, dated: 2.5.2016 is as per Ex.C.1, the signatures on the said cheque identified by P.W.1 are those of the accused No.1 and 2 as per Ex.C.1(a) and C.1(b) respectively, the Bank memo as per Ex.C.2, the office copy of Legal Notice as per Ex.C.3, postal receipts as per Ex.C.4 & C.5, postal acknowledgements as per Ex.C.6 & C.7.
4. Prima-facie case has been made out against the accused No.1 & 2 and summons were issued against the accused No.1 & 2 in turn they have appeared before the court and got enlarged on bail and the substance of the accusation has been read over to them to which they pleaded not guilty and claims to be tried.
5. 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 No.1 & 2, as they intended to set out their defence, 5 C.C.No.22140/2016 J the case came to be posted for the Cross- examination of complainant.
6. Thereafter, the statement of the accused No.1 & 2 as required under Sec.313 of the Cr.P.C. have been recorded, they have denied the incriminating evidence appearing against them and have chosen to lead their rebuttal evidence subsequently the Accused No.1 has examined as DW.1 and on her behalf has produced and marked the documents i.e., statement of Accounts as per Ex.D.1 and the relevant entry dated: 20.3.2014 as per Ex.D.1(a) and closed their side.
7. Heard by learned counsel for the complainant and the Accused No.1 & 2 and perused the written arguments submitted by the learned counsel for the complainant and Accused persons and also the decisions relied upon by them.
8. 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 No.1 and 2 have issued 6 C.C.No.22140/2016 J cheque bearing No.434787 dated:
2.5.2016 for Rs. 12,00,000/-
drawn on HDFC Bank, Atpar Branch, Magadi Chord Extension, Vijayanagara Club Road, Bengaluru 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 "Account closed" on 4.5.2016 and the complainant issued legal notice to the accused on 2.6.2016 and inspite of it the accused No.1 & 2 have 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?
9. The above points are answered as under:
Point No.1: In the Negative Point No.2: As per final order for the following:
..
REASONS
10. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under 7 C.C.No.22140/2016 J 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 conditions for prosecution of an offence which are as under:
1. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
2. Cheque shall be presented for payment within specified time i.e., from the date of issue before expiry of its validity.
3. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of 8 C.C.No.22140/2016 J information of the bounced cheque and
4. 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 conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of 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.
11. It is also one of the essential ingredient 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 presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of 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 9 C.C.No.22140/2016 J required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and are 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.
12. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire averments of the complaint and in his evidence testified that, he and the Accused are known to each other since from several years and being friends, the Accused approached him and expressed her financial crises and personal problems and requested for a hand loan of Rs.12 Lakhs, accordingly he paid a sum of Rs.12 Lakhs by way of cash on 5.4.2016, due to the repayment of said amount, Accused have issued a cheque bearing No. 434787 drawn on HDFC Bank Ltd., Atpar Branch, Magadi Chord Extension, Vijayanagar Club road, Bengaluru dated: 2.5.2016 for an amount of Rs.12 Lakhs in his favour. The complainant/PW.1 further testified that, when he presented the said cheque for encashment through 10 C.C.No.22140/2016 J his banker, the same came to be returned dishonoured as "Account Closed" vide bank memo dated: 4.5.2016, thereafter he got issued legal notice to the accused persons dated: 2.6.2016 by RPAD, calling upon them to pay the cheque amount to him within 15 days from the date of receipt of the notice and thereafter the Accused persons have received the notice on 3.6.2016, but still the Accused did not paid the cheque amount to him within stipulated period and have not replied to the same.
13. In support of the oral evidence of the complainant, he produced and marked the documents as per Ex.C.1 to C.7 i.e., Original Cheque, dated: 2.5.2016 is as per Ex.C.1, the signatures on the said cheque identified by P.W.1 are those of the accused No.1 & 2 as per Ex.C.1(a) and C.1(b) respectively, the Bank memo as per Ex.C.2, the office copy of Legal Notice as per Ex.C.3, postal receipts as per Ex.C.4 & C.5, postal acknowledgements as per Ex.C.6 & C.7.
14. The accused persons in this case in their defence, they have admitted the cheque in question 11 C.C.No.22140/2016 J belongs to them and signatures found on the cheque are those of their signatures, but they have denied the contents of cheque in question and cheque was returned to the complainant. The Bank Memo i.e Ex.C.2 discloses that, the cheque in question was dishonoured for the reason of "Account Closed". Hence, cheque in question was presented in time and it was dishonoured. It is also seen from Ex.C.3 to C.7 that, the complainant has issued legal notice within time after receipt of bank endorsement and said notice was served on the accused as per Ex.C.6 and C.7 i.e., postal acknowledgements. It is true that, though the accused persons have denied service of legal notice upon them, but the accused No.1/DW.1 in her cross-examination has specifically admitted that the legal notice issued by the complainant was received by her and have not given reply. Hence, the complainant has proved that, the legal notice issued by him was also served on the accused.
15. The accused in this case have taken specific defence that, they denied the acquaintance with the complainant as claimed by the complainant.
12 C.C.No.22140/2016 JThe accused have also denied the loan transactions in question and financial capacity of the complainant. The accused have also denied the issuance of cheque in dispute infavour of complainant in respect of discharge of transaction in question, therefore now in this back drop oral and documentary evidence led by both complainant and accused has to be appreciated.
16. The first defence of the accused persons that they do not know the complainant and have no occasion to borrow the loan amount in question. In order to substantiate this defence, the accused No.1 in her evidence deposed that, the accused No.2 is her son and they do not know the complainant and have seen the complainant for the first time before the court and have not borrowed the loan amount of Rs.12,00,000/- on 15.4.2016. Though the complainant has made suggestions to accused No.1/DW.1 stating that she is deposing falsely that, they do not know the complainant, but said suggestion was denied by her. It is important to note here that, the complainant himself has admitted certain important aspects in this regard which are 13 C.C.No.22140/2016 J relevant here to refer the same. The complainant/PW.1 at page No.1 in para No.1 has admitted that, he has no idea about the profession of the father of the Accused No.1 and in page No.2 at para No.2 admitted that, he do not have personal acquaintance with the accused and further at page No.2 in para No.3 admitted that, he do not know the exact address of the residence of accused and he have no knowledge with regard to the total number of houses belonging to the accused. The complainant/PW.1 has also admitted at para No.4 in page No.2 that, the accused and himself are not known to each other since several years and that they are not friends as claimed by him complaint.
17. Hence the above admissions of the complainant makes it clear that, he do not know the accused persons personally and the averments made in the complaint are falsified by the complainant himself, therefore an adverse inference can be drawn against the complainant that, the complainant has miserably failed to establish his relationship or acquaintance with the accused persons as stated by him in the complaint. On the 14 C.C.No.22140/2016 J contrary, the very admitted facts by the complainant clearly establishes that, there were no relationship between the complainant and accused persons and the admissions of the Complainant creates serious doubt about the happening of alleged transaction in question, as generally if the persons who are not knowing each other from several years and even the family members also, there are meager chances of occurrence of financial transactions. Therefore though the complainant in his complaint and evidence stated that, accused are known to him from past several years, but in his cross-examination, he himself falsify the said fact by admitting that, he do not have personal acquaintance with the accused and himself and accused are not known to each other since several years and they are not friends as claimed by him in complaint, such being the fact there is no hesitation to held that, the complainant and accused persons are stranger to each other, in such circumstances, serious doubt creates that, the question of approach of the complainant by the accused for requesting of hand loan that too sum of Rs.12 Lakhs as claimed by the complainant.
15 C.C.No.22140/2016 J18. The complainant in his complaint and evidence stated that, he and accused are known to each other since from several, being friends and accused approach and requested Rs.12,00,000/- hand loan for personal problems, accordingly he paid the said amount of Rs.12,00,000/- by way of cash on 5.4.2016, due to repayment of the said amount, accused have issued a cheque in question i.e. Ex.P.1 dated: 2.5.2016 for Rs.12 Lakhs and thereafter he has presented the said cheque through his banker and said cheque has been dishonoured for the reason of "Account closed". On the other hand, the accused persons have specifically denied the transaction in question and passing of loan amount and also disputed that, financial capacity of the complainant, therefore initial burden is on the complainant to prove the fact that, there must be debt or liability on him by the accused and he has collected the cheque in question for discharge of debt or liability. It is true that, the complainant has produced the documents i.e. Ex.C.1 cheque in question and Ex.C.1(a) and C1(b) are the signatures of the accused No.1 and 2 and Ex.C.2 memo issued by bank, Ex.C.3 is legal notice, Ex.C.4 & C.5 are the 16 C.C.No.22140/2016 J postal receipts and Ex.C.6 & C.7 are the postal acknowledgements. It is true that, the complainant has discharged his initial burden by complying mandatory provisions as required U/s.138(a) to (c) of N.I. Act and presumption can be drawn infavour of the complainant, but at the same time, it is equally settle law that, the presumptions are not conclusive and are rebuttable one. Therefore it is for the accused to rebut the presumptions either by producing independent evidence or on the basis of materials placed by the complainant.
19. In the present case, it is the specific contentions of the complainant that, he has paid Rs.12,00,000/- to the accused as 5.4.2016 by way of cash. As it is already held in the above that, the complainant himself has categorically admitted that, he has no idea about the profession of the father of accused No.2 and he is aware of the fact that, accused No.2 has brother by name Kiran and he have no idea with regard to profession of the said Kiran and he do not have personal acquaintance with the accused and accused and himself are not known to each other since several years and are not 17 C.C.No.22140/2016 J friends as claimed by him, hence in view of these admissions, it clearly establishes that, the complainant contrary to his own averments of the complaint admitted that, accused persons are not known to him, in such circumstances, a serious doubt arises to believe the version of the complainant that, the accused persons are known to him and have approached him seeking hand loan of Rs.12,00,000/- and he has paid to them.
20. It is also relevant here to mention that, except the cheque in question i.e. Ex.C.1 the complainant has not produced any documents to show that, either as on the date of alleged advancing the loan amount or prior to it, he was having sufficient funds with him. On the contrary, the complainant in his cross-examination at page No.3 in para No.6 admitted that, he have his accounts in the Canara Bank and in the SBI and he do his financial transactions through the said banks and he have no documents to show that, he had Rs.12 Lakhs with him as on 5.4.2020 and there are no documents to show that, he had lent Rs.12 Lakhs to the accused on 5.4.2016 and he has not collected 18 C.C.No.22140/2016 J either receipt or on Demand promissory from the accused thereby they acknowledges the alleged receipt of Rs.12 Lakhs from him. Hence, the above said admissions makes it clear that, though the complainant having his two bank accounts and he do his financial transactions through the said banks, but he did not produced any documents to show that, as on the date of alleged lending of loan amount or prior to it, he was having sufficient funds to lend the loan to the accused persons. Therefore the complainant is inconsistent regarding his financial capacity.
21. It is also relevant here to mention that, according to complainant, he has lent huge amount of Rs.12 Lakhs to the accused persons, but he himself admitted that, he has not collected any documents from the accused persons like receipt or On Demand Promissory, thereby they acknowledges the alleged receipt of Rs.12 Lakhs from him, in such circumstances an inference can be drawn that, no prudent man lend huge amount to the stranger persons that too without collecting any documents from them. On the contrary, the complainant 19 C.C.No.22140/2016 J himself admitted in his cross-examination at para No.12 in page No.8 that, he do not lent a huge loan to a person without collecting any documents from such persons, with whom he would not have close acquaintance. Hence, it goes to show that, the complainant is having knowledge about lending of huge loan amount by collecting the documents and he would not have lend huge amount without collecting documents to the persons who would not have close acquaintance, in such circumstances, an adverse inference can be drawn against the complainant that, if really the complainant had lent huge amount of Rs.12 Lakhs to the accused persons definitely he would have collected the documents but no such documents have been collected by the complainant as admitted by him which creates a serious doubt about alleged lending of loan amount of Rs.12 Lakhs to the accused persons and complainant has miserably failed to prove that, he was having sufficient source of income or financial capacity as on the date or prior to lending of alleged loan amount of Rs.12 Lakhs and he has paid the loan amount to the accused persons by producing cogent and convincible evidence.
20 C.C.No.22140/2016 J22. It is important to mention that, according to the complainant, the accused persons approached him and expressed financial crisis and requested for hand loan of Rs.12 Lakhs and he paid the said amount on 5.4.2016 by way of cash, due to repayment of said amount, accused have issued cheque i.e. Ex.C.1 dated:2.5.2016 for Rs.12 Lakhs. But in the cross-examination the complainant has admitted that, the accused No.2 had approached him seeking for a loan and he had lent the amount on 5.4.2016, thereafter two days from them, the accused have issued the cheque in dispute. Hence, it goes to show that, the complainant at one breath in his complaint and evidence stated that, both accused persons approached him for seeking loan but in his cross-examination stating that, only accused No.2 has approached him seeking loan, therefore complainant himself is not sure who have approach him for seeking loan, if really both accused have approached him for loan, definitely he would have stated the same in his cross-examination. Apart from that, the complainant has not mentioned the particular date, time or week on which date, or week the accused have approached him seeking 21 C.C.No.22140/2016 J alleged loan amount of Rs.12 Lakhs, therefore the conduct of the complainant in non disclosure of the particular date or week on which the accused persons approached him seeking for loan which itself suffice to say that, if really the accused persons approached him for hand loan, definitely the complainant would have mentioned the date or week either in the complaint or in his evidence, on this count also a serious doubt arises in the mind of the court about the occurrence of alleged loan transaction in question. It is also interesting to note that, though the complainant has lend alleged huge amount of Rs.12 Lakhs but he either in the complaint or in the evidence nowhere stated whether the said loan amount carries interest or not or whether it is interest free loan and if it is interest free loan for what reasons interest was not charged , therefore in the absence of these facts a serious doubt Aries with regard to the lending of alleged huge amount of Rs.12 Lakhs without charging the interest, as no prudent man shall lend huge amount as interest free loan unless there are specific reasons or circumstances warrants for not charging interest. In the present case, the complainant in silent on the 22 C.C.No.22140/2016 J part of charging interest, on this count also a serious doubt arises with regard to alleged loan transaction between complainant and accused persons.
23. It is important to note here that, the complainant/PW.1 in his examination-in-chief though he has stated that, the accused have approached him seeking financial help and requested hand loan of Rs.12 Lakhs and thereafter he paid Rs.12 Lakhs to the accused and in order to repayment of the said loan accused have issued cheque in question i.e., Ex.C.1 and thereafter he has presented the said cheque and it has been dishonoured for the reason of "Account Closed" and thereafter he got issued legal notice as per Ex.C.3 and it was served upon the accused and inspite of service of notice, accused No.1 & 2 did not repaid the loan amount and have committed an offence U/s.138 of N.I. Act. But it is also important to note that, the complainant in this case after partly cross- examination by the accused he did not turned up for tendering his further cross-examination, therefore on 29.8.2018 court has passed an order that, the complainant i.e. PW.1 is continuously absent he is 23 C.C.No.22140/2016 J treated as not tendered for further cross- examination, under these circumstances now it is to be seen that, whether the evidence of the complainant can be taken into consideration for proving allegations made in the complaint against the accused and whether the said evidence becomes complete evidence as against the accused. On careful reading of Sec.137 & 138 of Indian Evidence Act, which reveals that, the testimony of witness includes his examination-in-chief and cross- examination by the opposite party and re- examination by the party on whose behalf the witness appeared. Therefore examination of a witness is become complete unless the witness tendered for entire cross-examination by opposite party who may forgo its right if it is so desires but failure to cross-examination leads to the presumptions that, the witness account is correct. The truth can be extracted from the witness and falsehood can also be exposed only by cross- examining the witness, therefore a statement which is made by a witness is not tendered for cross- examination, such evidence should not be considered.
24 C.C.No.22140/2016 J24. In this regard, it is relevant here to refer the decision of Hon'ble High Court of Karnataka at Bengaluru in Crl.Appeal No.376/2007 decided on 25.2.2012 the Hon'ble High Court held that, "When the complainant has given evidence on affidavit, if the Accused applied to the court, then the court has no discretion but to summon the deponent in the affidavit to appear for examination as to the facts contained in the affidavit. Despite the court's direction, if the person giving evidence in examination in chief on affidavit fails to appear and tender himself tobe examined, then the deposition in the affidavit will not translate into legal evidence. This requirement is in line with the provisions of the evidence Act (C) subsection (1) of Sec.145 envisages 'not withstanding anything contained in the code of criminal procedure and may, subject to all exceptions be read in evidence in any enquiry, trial or other proceedings under the said court'. It no doubt permits evidence of the 25 C.C.No.22140/2016 J complainant may be given by him on affidavit, it is subject to all exceptions and is not without any riders - Every statement by a witness even given on oath before the court is not evidence in law unless the court admits such evidence- the statement of witness to be called evidence must be capable of being tested in cross-examination, otherwise it will certainly not to be legal evidence. Further it is held that, the resultant effect of the statement of PW.1 in examination in chief was not tested in cross-examination due to his own default, it remained nearly a statement and had not transferred into legally acceptable evidence.
25. In another decision reported in ILR 1990 KAR 1205 in the case of Sannaveerappa Bharamajappa Kalal Vs. State of Karnataka, wherein the Hon'ble High Court of Karnataka held as under:
"Complete evidence calls for cross- examination not examination-in-chief alone if witness does not submit to 26 C.C.No.22140/2016 J cross-examination after examination in chief court precluded from acting on such incomplete evidence".
Hence by applying the principles of law laid down by the Hon'ble High Court of Karnataka to the present facts of the case in this case also it is fact that, the complainant after filing his affidavit in lieu of the examination in chief and partly cross-examination, remained absent inspite of court's direction for tendering his cross-examination, thus the statement of PW.1 in examination in chief was not tested in cross-examination due to his own default, it remain as merely a statement and not transformed into legal acceptable evidence, therefore the evidence of the complainant who entered into the witness box being only part of the record of his deposition and such deposition is not legal evidence, under such circumstances, it has to be eschewed as rightly argued by the learned counsel for the accused and in view of the principles of law laid down by the Hon'ble High Court in the above referred decisions.
26. The accused persons in this case examined the Accused No.1 as DW.1 and in her evidence she 27 C.C.No.22140/2016 J has stated that, they have taken the loan of Rs.4 Lakhs on 20.3.2014 through cheque bearing No. 227802 in the name of M/s.Maheshwari Sounds and Lights from one Arun Kumar who is financier through one Manjunath who is their far relative and also advocate, during that time both Arun Kumar and Manjunath have taken 4 blank signed cheques pertaining to Sham Rao Vittal Co-operative Bank and 2 signed blank cheques pertaining to HDFC Bank along with blank singed white and Stamp papers for the purpose of security. The accused No.1/DW.1 further deposed that, even though they have repaid the entire loan amount but the said Arun Kumar and Manjunath have not returned those documents to them by saying one or other reasons, but they have not taken any action against them, since Manjunath is their relative. In support of the oral evidence accused have produced Bank account statements which is marked as Ex.D.1 and relevant portion is marked as Ex.D.1(a).
27. The learned counsel for the complainant cross examined in length but the suggestions made to the DW.1, were stoutly denied by her, except the 28 C.C.No.22140/2016 J denial of the examination in chief nothing has been elicited to believe the claim of the complainant that, the accused have borrowed Rs.12 Lakhs from the complainant and have issued the cheque in question to the complainant towards discharge of liability. Even the complainant has not suggested that, the accused have borrowed Rs.12 Lakhs on 5.4.2016 and has paid Rs.12 Lakhs and have issued cheque in question towards repayment of alleged loan. Hence, nothing has been elicited from the accused No.1/DW.1 to discard her evidence.
28. It is also relevant here to mention that, during the course of cross-examination of the complainant/PW.1 the accused have made the suggestions to him that, one Manjunath and Arun have collected the cheque for accused No.1 towards the loan amount borrowed on 20.3.2014 and at that time, the said Manjunath and Arun have collected signatures of accused No.1 and 2 on cheques and on stamp papers, the complainant has not denied the said suggestion but he stated that he do not know, hence in view of non denial of specific suggestions may leads to draw adverse inference against the 29 C.C.No.22140/2016 J complainant that, the cheque in question may be entered into the hands of complainant as per the defence taken by the accused persons in this case. The complainant has also admitted the Ex.C.1 cheque is an old cheque, therefore the very admission of the complainant corroborates the defence of the accused that, the cheque in question was given to one Arun who is money lender and has advanced loan to them in the year 2014 and at that time he had collected the cheque from them as security, therefore in view of the above said reasons and non denial of specific suggestions made by accused, the accused have successfully established their defence by rebutting the presumptions available to the complainant U/s.118 and 139 of N.I. Act.
29. The learned counsel for the complainant in the written arguments has relied upon the decision of Hon'ble Apex Court of India reported in Crl. Appeal No.508/2019 i.e., in Rohitbhai Jivanalal Patel Vs. State of Gujarat and another decision of Hon'ble High Court of Karnataka reported in 2017 Cr.R. 536(Kant) between C.M.Dinesha Vs. Smt. 30 C.C.No.22140/2016 J C.G.Mallika and argued that, in view of the principles of law and in the present case the complainant has proved that, the cheque in question belongs to the accused persons and signatures found at Ex.C.1(a) and Ex.C.1(b) are those of accused and cheque i.e. Ex.C.1 was presented by the complainant and same was dishonoured for reason of "Account Closed" and thereafter legal notice was given to the accused persons and said notice was served upon them inspite of it, the accused No.1 and 2 did not repaid the cheque amount, hence they have committed an offence U/s.138 of N.I. Act and prayed to convict the accused, but as it is already held in the above, at the time of discussion of oral and documentary evidence adduced by complainant and accused and come to the conclusion that, the complainant has miserably failed to prove that, himself and accused persons are known to each other and accused have approached him and borrowed the loan from him and have issued the cheque in question to him towards discharge of loan in question, in such circumstances the argument canvassed by the learned counsel for the complainant cannot be acceptable and with due 31 C.C.No.22140/2016 J respect to the principles of law laid down by the Hon'ble Apex court and High Court of Karnataka, same are not applicable to the case of complainant.
30. 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.12 Lakhs/= to the Accused persons by way of cash and in order to discharge the said loan amount the Accused have issued the cheque in question i.e., Ex.C.1. 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 No.1 and 2 have 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'.
31. Point No.2: In the light of discussions made at above point and for the said reasons this 32 C.C.No.22140/2016 J point is answered in the negative and it is just and proper to pass the following :-
ORDER The complainant U/s 200 of Cr.P.C. filed by the complainant for the offence punishable U/s 138 of NI ACT is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C. the accused No.1 and 2 are Acquitted for the offence punishable U/sec.138 of N.I.Act.
Personal bonds executed by the accused No.1 and 2 are stands cancelled after appeal period is over.
The cash security of Rs.
5,000/- each deposited by the accused No.1 and 2 vide order dt. 04-07-2019 is ordered to be released to the accused No.1 and 2 (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 12th day of August, 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.33 C.C.No.22140/2016 J
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.Niranjana B.R.
2. List of documents exhibited on behalf of the Complainant:-
Ex.C-1 : Original Cheque; Ex.C-1(a) & : Signatures of the Accused; C1(b) Ex.C-2 : Bank Memo Ex.C-3 : Office copy of the Legal Notice; Ex.C-4 & C-5 : postal receipts;
Ex.C-6 & C-7 : Postal acknowledgements.
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Smt.N.Shivamma,
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : Statement of Accounts;
Ex.D.1(a) : Relevant entry dated: 20.3.2014
(SRI.S.B.HANDRAL),
XVI ACMM, Bengaluru City.
.
34 C.C.No.22140/2016 J
12-08-2020
Complainant:
Accused:
Judgment pronounced in the open court vide separate order.
ORDER The complainant U/s 200 of Cr.P.C. filed by the complainant for the offence punishable U/s 138 of NI ACT is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C.
the accused No.1 and 2 are Acquitted for the offence punishable U/sec.138 of N.I.Act.
Personal bonds executed by the accused No.1 and 2 are stands cancelled after appeal period is over.
The cash security of Rs. 5,000/-
each deposited by the accused No.1 and 2 vide order dt. 04-07-2019 is ordered to be released to the accused No.1 and 2 (if not lapsed or forfeited) after the expiry of the appeal period.
XVI ACMM, B'luru.
35 C.C.No.22140/2016 J