Bangalore District Court
M.Shrenik Raj vs Deepak S.Sunderarajan on 11 December, 2018
IN THE COURT OF THE XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
Dated this the 11th day of December 2018
PRESENT: KALPANA.M.S.,
B.Sc., LL.M.,
XX ADDL. C.M.M. Bengaluru.
C.C.No.1921/2016
Complainant : M.Shrenik Raj,
S/o Manikchand,
R/at No.6,
between 2nd and 3rd Cross,
Lalbagh Road,
Bengaluru - 560 027.
Vs.
Accused : Deepak S.Sunderarajan,
R/at No.60, Sri Krishna Nilaya,
Ranga Rao Road,
Shankarpuram,
Basavanagudi,
Bengaluru - 560 004.
Offence complied of : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
2 C.C.1921/2016
Final Order : Accused is Acquitted
Date of Order : 11-12-2018
JUDGMENT
The complainant has filed this complaint under section 200 of code of criminal procedure read with section 138 & 142 of the Negotiable Instruments Act ( in short referred as "N.I. Act") against the accused alleging that, he has committed the offence.
02. The sum and substance of the complaint, is as follows;
Complainant contends that, accused and other five persons by colluding with each other cheated the complainant by receiving huge amount to the tune of Rs.4.5 crores on different occasions from 2013 till 2014 with promise to procure the business projects for BPO/Call Centre/Data Entry/ Software Development/ Development of Human Resources to 3 C.C.1921/2016 the complainant, who is running call Centre business in the name and style of " Sri Misri Solutions Pvt.Limited", BTM Layout, Bengaluru. Thereafter, the accused has failed to procure the same and thereby complainant has been cheated by the accused miserably. Aggrieved by the same, the complainant has filed complaint before the Central Police Station, Bengaluru in Crime No.183/2014, the Police are investigating the matter. Further, during pendency of the above criminal complaint against the accused and others, the accused has approached the complainant to settle the issue of criminal case and the amount which the accused has received illegally. Accordingly, the accused has issued a cheque bearing No.000001 dated 26.10.2015 drawn on HDFC Bank, Jayamahal Extension, Bengaluru for Rs.6,00,000/- towards part payment of the amount received by the accused with an instruction to the complainant to present the same. As per the instructions and advice, the complainant has presented the cheque in his bank on 05.11.2015, which came to be dishonoured for the 4 C.C.1921/2016 reason "Payment Stopped By Drawer" on 06.11.2015. Complainant got issued Legal notice to the accused. Accused issued untenable reply to the said notice. On these set of facts, complainant sought for suitable orders.
03. On filing of complaint, this court has taken cognizance for the offence punishable under section 138 of Negotiable Instrument Act, sworn statement of complainant was recorded. Being satisfied that there are prima-facie materials to proceed against accused, summons was issued. After appearance, accused enlarged on bail and plea was recorded as per section 251 of Cr.P.C. Accused has not stated the defence.
04. In order to prove his case, complainant examined himself as PW.1 and got marked documents from Ex.P.1 to 5. The statement of accused under section 313 is recorded, read over and explained to the accused. The defence of the accused is 5 C.C.1921/2016 total denial. Further accused examined as DW.1 and got marked documents from Ex.D.1 to 4.
05. In this case, the evidence on record shows that summons trial procedure was adopted instead of summary trial. As per the judgment passed by Supreme Court reported in 2014 Cr.L.J. 1953, in a case of Mehsana Nagarik Sahakari Bank Limited V/s. Shreeji CAB Company Limited and others, conducting Denova trial does not arises.
06. Heard the Learned Counsel for complainant and accused. Perused the written arguments filed on behalf of the complainant and accused, citations and materials on record.
07. The points that arise for my consideration are as follows;
POINTS
1. Whether the complainant proves that, accused issued cheque for Rs.6,00,000/- towards discharge of his liability, which was returned unpaid on 6 C.C.1921/2016 presentation and also not complied the notice issued by the complainant and thereby committed an offence punishable under section 138 of Negotiable Instruments Act?
2. What Order?
08. My answer to the above points is as follows;
1. Point No.1: In the negative
2. Point No.2: As per final order for the following;
REASONS
09. POINT No.1: Complainant has filed this complaint alleging that accused has committed offence under section 138 of N.I. Act. He pleads and asserts that, towards discharge of his liability, accused has issued a cheque for Rs.6,00,000/-. The said cheque came to be dishonoured on presentation. Complainant has issued notice within time stipulated calling upon the accused to pay the amount covered under cheque. Inspite of service of notice, accused has not paid the amount 7 C.C.1921/2016 within 15 days, which gave raise cause of action to file this complaint. He further relied on the documents from Ex.P.1 to 5. This witness was fully cross examined.
10. In this scenario, let us scrutinize the documents relied by complainant in order to examine the compliance of statutory requirements envisaged under section 138 of N.I. Act. To prove his case, complainant placed oral testimony as well as documentary evidence. The material documents from Ex.P.1 to 5 i.e., Ex.P.1 is the cheque dated 26.10.2015, Ex.P.2 is the bank endorsement dated 06.11.2015, Ex.P.3 is the legal notice dated 26.11.2015, Ex.P.4 is the Postal acknowledgement & Ex.P.5 is reply notice shows that, complaint is filed within statutory period of limitation. It is worth to note that, accused has not disputed the signature present on the cheque. Thus, statutory presumption enshrined under section 118 read with section 139 of N.I. Act would operate.
8 C.C.1921/2016
11. No doubt, the said presumptions of law are rebuttable in nature. The accused can take probable defence and rebut the presumption available to the complainant. Let us examine whether accused has successfully rebutted the presumptions of law. It is the specific defence of the accused that, he had never promised the complainant to procure any business projects. Complainant has filed a false complaint before the Central police station, Bengaluru. Accused contends that, he had not given any cheque to the complainant for Rs.6,00,000/, as he is not due or liable to pay any amount to the complainant . He further states that, he had lost cheque bearing No.0000001 in the year 2014 and given stop payment intimation of the said cheque to the bank on 11/07/2014 itself. The complainant misused the friendship and somehow got the custody of signed cheque of the accused and filled-up the same and presented the cheque by creating a false story. Complainant has filed this false case to extract money from the accused in order to make un-lawful gain. On these contentions, accused sought for 9 C.C.1921/2016 dismissal of the complaint. To fortify the defence, accused examined himself as DW.1 and relied on the documents from Ex.D.1 to 4. Ex.D.1 is Certified copy of order sheet in PCR.990/2016, Ex.D.2 is acknowledgment, Ex.D.3 is reply notice and Ex.D.4 is postal receipt.
12. In the back drop of the rival contentions, this court has given anxious consideration to the case papers. In order to discharge the burden of rebuttal, accused has seriously disputed the financial capacity of the complainant to lend huge amount of Rs.4,50,00,000/- to the accused and his other friends on different occasions from 2013 to 2015. To substantiate this contention, accused has seriously cross examined PW.1 on this aspect by eliciting admissions that, he is an Income Tax Assessee. He has not produced any document to show that, he had an amount of Rs.4,50,00,000/- during the year 2013-2014. Complainant further assert that, he had paid amount through bank transfer and in cash. For better 10 C.C.1921/2016 appreciation, the relevant portion of evidence of PW.1 is culled out as under;
'' £Á£ÀÄ DzÁAiÀÄ vÉjUÉ ¥ÁªÀwzÁgÀ . 2013-2014 £Éà ¸Á°£À°è £À£Àß §½ gÀÆ.4,50,00,000/- ºÀt EvÉÛAzÀÄ vÉÆÃj¸À®Ä zÁR¯ÉUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¹®è."
From this part of evidence of complainant , it is crystal clear that, complainant has not placed iota of evidence such as bank statement and Income Tax returns etc, to show his financial capacity or source of income to lend huge amount of Rs. 4,50,00,000/- to the accused and others.
13. In this context, it is profitable to refer the decision reported in, (2015) 1 Supreme Court Cases 99 - K.Subramani Vs. K.Damodara Naidu, wherein it is held that;
"Dishonour of cheque - Legally recoverable debt not proved as complaint could not prove source of income from which alleged loan was made to appellant- accused -
Presumption in favour of holder of 11 C.C.1921/2016 cheque, hence, held, stood rebutted- Acquittal restored ".
The proposition of law laid down in the above decisions is applicable to the present case.
14. Accused relied on the decision of the Hon'ble supreme court reported in, (2008) 4 Supreme Court Cases 54, in Krishna Janardhan Bhat Vs. Dattatraya G.Hegde, wherein it is held that;
" Trial court not drawing any inference as to the probability of the complainant advancing a sum of Rs.1.5 lakhs on mere asking and that too without keeping any documentary proof or requiring presence of any witness - Purported story that the appellant would himself come forward to return the amount by a cheque knowing fully well that he did not have any sufficient funds was difficult to believe - ...... Complainant failed to produce any books of accounts or any other proof to show that he got so much money from Bank- Courts below failed to notice that ordinarily in terms of S.269-SS, Income Tax Act, any advance taken by way of loan or more than Rs.20,000/- had to be made by an account payee cheque only-12 C.C.1921/2016
Considering the peculiar facts and circumstances of the case, held, courts below approached the matter on wrong application of the legal principles to the fact situation of the case- Hence, conviction and sentence set aside-''
15. It is further claim of the complainant that, there was business transaction with the accused and his friends to procure the business projects to the complainant. Further, complainant contends that, an agreement was reduced to writing to that effect. He is the custodian of the said agreement and there is no impediment to produce the same. For better appreciation the relevant portion of evidence of PW.1 is culled out as under;
'' F ªÀåªÀºÁgÀzÀ ¨Á§ÄÛ PÀgÁgÀÄ §gÉzÀÄPÉÆnÖzÁÝgÉ. ¸ÀzÀj PÀgÁgÀÄ £À£Àß §½ EzÉ. PÀgÁgÀ£ÀÄß ºÁdgÀÄ¥Àr¸À®Ä vÉÆAzÀgÉ E®è. "
It is pertinent to note that, an agreement establishing the alleged business between complainant, accused and others clinches the matter in dispute. Complainant admittedly having 13 C.C.1921/2016 possession of the said agreement has not produced the same for the reasons best known to him. To put it other way, complainant has intentionally suppressed the alleged agreement to establish the business transaction with the accused. Therefore, an adverse inference could be drawn against complainant by holding that, there exists no such agreement allegedly executed between complainant, accused and five others. In that view of the matter, the business transaction in-connection of which the amount was paid by the complainant to the accused and others is not proved.
16. Further, from the complaint averments as well as the evidence of the complainant, it is forth coming that, complainant has given an amount of Rs.4,50,00,000/- to accused and other five persons i.e., Nagesh, Umesh Shankar, Mithun Aiyappa, Abhishek Jar and Shadab Rashid. It is further case of the complainant that, accused came forward to repay the amount and towards part payment issued the present cheque. For better 14 C.C.1921/2016 appreciation, the relevant portion of evidence of PW.1 is culled out as under;
'' «ªÁ¢vÀ ZÉPï£À°è £ÀªÀÄÆ¢¹gÀĪÀ 6 ®PÀë ªÉÆvÀÛªÀ£ÀÄß 2013 ªÀÄvÀÄÛ 2014 £Éà E¸À«AiÀÄ°è DgÉÆæUÉ PÀAvÀÄUÀ¼À°è PÉÆnÖzÉÝãÉ. ºÀtªÀ£ÀÄß ¨ÁåAPï mÁæ£ïì¥Àsgï ªÀÄvÀÄÛ £ÀUÀzÀÄ gÀÆ¥ÀzÀ°è PÉÆqÀ¯ÁVzÉ. "
Accused has totally denied the case of the complainant.
17. Surprisingly, contrary to the claim of lending the amount to the accused and his friends, complainant has clearly stated in his evidence that, one Abhishek Jar had taken hand loan from the complainant. Present accused person has not taken any loan from the complainant. For better appreciation the relevant portion of evidence of PW.1 is culled out as under;
'' C©üµÉÃPïeÁgï £À£Àß §½ PÉÊ ¸Á® vÉUÉzÀÄPÉÆAqÀgÀÄ. ¥Àæ¸ÀÄÛvÀ DgÉÆæ PÉÊ ¸Á® vÉUÉzÀÄPÉÆAr®è. "
15 C.C.1921/2016
From this part of evidence, it is crystal clear that, accused has not taken any amount as loan or for any other purpose from the complainant. This admission attributable to the complainant is fatal to his case. This contrary contentions of the complainant creates doubt in the mind of the court about existence of legally enforceable debt due from the accused to the complainant.
18. It is forthcoming from the case papers that, accused has taken probable defence to rebut the presumptions drawn in favour of the complainant. It is settled point of law that, the burden on the accused is not heavy and law permits him to rebut the presumptions by way of preponderance of probabilities. In this context, it is profitable to refer the decision of larger bench of the Hon'ble Apex Court reported in Rangappa Vs. Mohan reported in AIR 2010 SC 1898, Wherein their lordships pleased to observe that, "Keeping this in view, it is settled position that when an accused has to rebut the presumption. under section 139, the standard of proof for doing 16 C.C.1921/2016 so is that 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/ her own."
19. In another decision reported in, 2012 (2) Crimes 29 (Chhat.), - H.R.Construction Vs. Ram Prasad Soni, wherein their lordships pleased to observe that, "Complainant admitted in cross examination that cheque in question was taken as advance - Complainant did not bring any evidence to clear that ambiguity- Acquittal was not to be interfered with."
20. Further, in the decision reported in, (2006) 3 Supreme Court Cases (Cri) 30, in a case of M.S.Narayana Menon @ Mani Vs. State of Kerala and another, it is held that; 17 C.C.1921/2016
"Whether the initial burden has been discharged by accused is a question of fact- Burden of proof on accused is not heavy- He need not disprove the prosecution case in its entirety- He can discharge his burden on the basis of preponderance of probabilities through direct evidence or on the materials relied by the complainant".
21. From the overall consideration of the evidence on record, it is clear that, accused has taken probable defence to rebut the presumption of law. The standard of proof required for the accused is preponderance of probabilities. Whereas, complainant has to prove the guilt of the accused beyond all reasonable doubt. It could be seen that, the defence taken and proved by the accused is probable. Hence, this court opined that, accused has rebutted the presumption drawn in favour of complainant. Therefore, the onus shifts on the complainant to prove that, the disputed cheque was issued by the accused towards legally recoverable debt. No concrete and cogent evidence is placed to establish the same. Hence, this court 18 C.C.1921/2016 opined that, complainant has not proved that disputed cheque was issued by the accused towards discharge of the liability. Consequently, this point No.1 is answered in the negative.
22. POINT NO.2: In view of the reasons stated and discussed above, the complainant has not proved the guilt of the accused punishable under section 138 of N.I. Act. Hence, this court proceed to pass the following;
ORDER Acting under Section 255(1) of code of criminal procedure, the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond of accused stand cancelled. {Dictated to the stenographer, transcribed and computerized by her, corrected and then signed by me and then pronounced in the open court on this 11th day of December 2018}.
KALPANA.M.S.) ( XX ACMM, Bengaluru.
19 C.C.1921/2016ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 M.Shrenik Raj List of documents produced on behalf of complainant:
Ex.P.1 Cheque Ex.P. 1(a) Signature of the accused Ex.P. 2 Bank endorsement Ex.P. 3 Copy of the legal notice Ex.P. 4 Postal acknowledgement Ex.P. 5 Reply notice
List of witnesses examined on behalf of accused:
D.W.1 Deepak S. Sunderajan 20 C.C.1921/2016 List of documents produced on behalf of accused:
Ex.D.1 Certified copy of order sheet in PCR.990/2016 Ex.D.2 Acknowledgment Ex.D.3 Reply notice Ex.D.4 Postal receipt XX A.C.M.M., Bengaluru.21 C.C.1921/2016
Judgment pronounced in open court vide separate order:
ORDER Acting under Section 255(1) of code of criminal procedure, the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond of accused stand cancelled.
(KALPANA.M.S.) XX ACMM, Bengaluru.
Acting under section 437-A of
Code of Criminal Procedure,
accused is hereby directed to
execute bond for Rs.6,00,000/-to
appear before the appellate court as
and when such court issues notice
in respect of any appeal or petition
filed against the judgments.
The bond stands cancelled
after expiry of six months.
(KALPANA.M.S.)
XX ACMM, Bengaluru.
22 C.C.1921/2016