Bangalore District Court
Sri M.C. Ramadas vs M/S Sai Ram Traders on 16 May, 2018
C.C.NO.14783/2012
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present: Smt. HEMA PASTAPUR
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 16th day of May 2018
C.C.No.14783/2012
Judgment under section 355 of Code of Criminal Procedure
Complainant : SRI M.C. RAMADAS,
s/o Chikkavenkataramanappa,
Aged about 38 years,
Residing at No.26, 2nd Cross,
G.C. Road, S.V.G. Nagar,
Moodalapalya,
Bengaluru - 560 072.
(By Shri G. Vijayakumar, Advocate)
V/s
Accused : M/S SAI RAM TRADERS,
Proprietor S.R. Surya Prakash,
No.433-35, 10th Cross,
1st Stage, 'N' Block,
Rajajinagara,
Bengaluru - 560 010.
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C.C.NO.14783/2012
And also at:-
No.259, 'Sriranga Nilaya',
(Ground Floor), 1st Main Road,
Sharada Colony,
Shiva Shakti Gas Agency Road,
Basaveshwaranagar,
Bengaluru - 560 079.
(By Shri N. Ravishankar, Advocate)
JUDGMENT
That, the complainant has filed the private complaint under section 200 of Code of Criminal Procedure, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the brief facts of the present case are as under:-
1. That, the accused is the relative and closed friend of the complainant and the accused on 20.05.2011 had approached and requested the complainant for advancing him a sum of Rs.3,00,000/- to improve his furniture business and accordingly, the complainant on very same day had advanced him the said amount. That, the accused at the time of availing the said loan amount i.e., 20.05.2011 to discharge his legally enforceable debt 2 C.C.NO.14783/2012 had issued in favour of the complainant a post dated Cheque bearing No.079895 dated:-20.12.2011 for a sum of Rs.3,00,000/-
drawn on Syndicate Bank, Basaveshwaranagar branch, Bengaluru - 560 079 and also agreed to repay the said amount with an interest at the rate of 24% per annum from 20.05.2011 to till its realization. That, the complainant on 20.12.2011 had presented the said cheque for encashment in Canara Bank, Vijayanagara branch, Bengaluru and on 23.12.2011 the said cheque was returned with the shara as 'Funds Insufficient'. That, the complainant for the aforesaid acts of the accused on 28.12.2011 had issued the legal notice to him and the same was duly served upon him on 31.12.2011. That, as the accused inspite of receiving the said notice failed to comply with the terms of the same the complainant has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took the cognizance for the offence punishable under section 138 of the Negotiable Instruments Act and thereafter, recorded the sworn statement of the complainant and after satisfying with the 3 C.C.NO.14783/2012 materials placed on record registered the case against the accused in Register No. III and issued summons to him. That, in pursuance of said summons the accused appeared before this court through his Learned counsel and he was enlarged on bail. That, the substance of accusation of the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to tried. That, after completion of complainant side evidence the statement of the accused as contemplated under section 313 of the Code of Criminal Procedure, has recorded and read over him and he denied all incriminating evidence appearing against him.
3. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in his favour a post dated Cheque bearing No.079895 dated:-20.12.2011 for a sum of Rs.3,00,000/- drawn on Syndicate Bank, Basaveshwaranagar branch, Bengaluru - 560 079? 4
C.C.NO.14783/2012
2. Whether the complainant has further proved that, the said cheque was dishonoured as 'Funds Insufficient' in the account of the accused and thereby the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act?
3. What order?
4. That, the complainant to substantiate his contentions has deposed himself as PW1 and got marked the documents at EXs.P1 to 8 and closed his side.
That, the accused to substantiate his contentions has deposed himself as DW1 and got marked the document at EX.D1 and closed his side.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the NEGATIVE Point No.2 :- In the NEGATIVE Point No.3:- As per the final order for the following:-
REASONS
6. Point No.1:- It is specific contention of the complainant that, the accused on 20.05.2011 had approached and requested him for advancing him a sum of Rs.3,00,000/- to improve his 5 C.C.NO.14783/2012 furniture business and accordingly, on very same day he advanced the said amount to him.
7. That, the complainant in support of his contentions has placed his reliance on following decisions:-
1) Shri Kashinath Balu Gaonkar -vs- Smt. Sunita Krishnajirao, reported in 2015 (2) DCR 142 wherein it has held that Negotiable Instruments Act, 1881 - Section 138 and 139 - Criminal Procedure Code, 1973 - Section 374 -
Dishonour of cheque - Conviction and sentence - Validity
- Held - Since complainant has established her case beyond reasonable doubt and accused had failed to rebut the presumption under Section 139 of N.I. Act, so accused was rightly held guilty - No interference - Petition devoids merit and is dismissed.
2) Kirpal Singh -vs- Balvinder Singh, reported in 2006 Crl.L.J. 2004 wherein it has held that Negotiable Instruments Act (27 of 1977 Smvt.) S.92 - Dishonour of cheque - Service of notice - Proof - Plea by complainant that he sent notice within period prescribed after dishonouring of cheque - It is for accused to say that he 6 C.C.NO.14783/2012 had not received that notice for escaping penal consequences which can be done during trial - Proceedings cannot be dropped on ground that date of service of notice was not disclosed in complaint.
8. It is pertinent to note here that, the accused in his evidence has specifically deposed that he do not know the complainant and he has not entered into any transaction with the complainant. That, the accused has further specifically deposed that in the year 2008 he was doing the sand and hotel businesses and in the year 2009 he was doing the furniture business. That, the accused has further deposed that he was doing the said sand and hotel business along with Shri Swamy and Shri Vijay Kumar. That, the accused has further deposed that in the year 2010 he was closed his aforesaid businesses. That, the accused has further deposed that he had not availed any loan amount from anybody.
It is pertinent to note here that, the accused in his evidence has got marked the Letter issued by him to ACCT, LVO-140, Bengaluru dated:-27.08.2010 at EX.D1. It is to be noted here that, from perusal of EX.D1 it appears that the said letter has 7 C.C.NO.14783/2012 been issued to the said authority for issuing De-Register certificate.
9. That, the accused in support of his contentions has placed his reliance on following decisions:-
1. John K. Abraham -vs- Simon C. Abraham and another, reported in (2014) 2 SCC 236 wherein it has held that Debt, Financial and Monetary Laws -Negotiable Instruments Act 1881-Ss. 118, 139 and 138-Dishonour of cheque- Drawing presumption under S. 118 R/w. 139-
Prerequisites for, when cheque is for repayment of a loan/advanced money- Proof required on the part of complainant-Held, in order to draw presumption under S. 118 R/w. 139, burden lies on complainant to show; (i) That he had the requisite funds for advancing the sum of money/loan in question to accused, (ii) that the issuance of cheque by accused in support of repayment of money advanced was true, and (iii) That the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant- In present case, complainant not aware of the date when substantial 8 C.C.NO.14783/2012 amount of Rs. 1,50,000/- was advanced by him to appellant-accused - Respondent complainant failed to produce relevant documents in support of the alleged source for advancing money to accused- Complainant also not aware as to when and where the transaction took place, for which the cheque in question was issued to him by accused- Complainant also not sure as to who wrote the cheque and making contradictory statements in this regard- In view of said serious defects/Lacuna in evidence of complainant, judgment of High Court reversing acquittal of accused by trial court, held, was perverse and could not be sustained- Acquittal restored.
2. K. Subramani -vs- K. Damodara Naidu, reported in 2015 AIR SCW 64 wherein it has held that - Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of cheque - complaint- Finding by trial court on consideration of entire oral and documentary evidence- That complainant had no source of income to lend sum of Rs. 14 lakhs to accused- He failed to prove that there is legally recoverable debt payable by accused to him- 9
C.C.NO.14783/2012 Acquittal of accused was proper- Order by High Court remanding case for retrial- Liable to be set aside.
3. Amzad Pasha -vs- H.N. Lakshmana, reported in 2011 Crl.L.J. 552 wherein it has held that Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of cheque - Accused alleged to have taken loan from complainant - Complainant has not placed any evidence to show that he had financial capacity to lend substantial amount of Rs.4,50,000/- - Admittedly no document evidencing the loan transaction has come into existence
- Case of complainant that he had lent Rs.4,50,000/- to the respondent is highly improbable and not acceptable - None of witnesses in presence of whom loan amount was paid by complainant examined by complaint - Adverse inference can be drawn against complainant - Accused liable to be acquitted.
4. Venkatesh Sadanand Pai -vs- Mrs. Kanchan A. Kakodkar and another, reported in 2016 Crl.L.J. 1267 wherein it has held that Negotiable Instruments Act (26 10 C.C.NO.14783/2012 of 1881), S.138 - Dishonour of cheque - Legally enforceable debt - Proof - Complainant alleged on basis of promissory note executed by accused that he had advanced various amounts ranging from Rs.30,000/- to 80,000/- to accused totaling to Rs.7 lacs for period from June, 2006 to Dec., 2007 - However, complainant had neither made mention about said promissory note in statutory demand notice nor in complaint - Accused also denied execution of said promissory notice and complainant failed to prove its execution - Complainant admittedly advanced loan of more than Rs.20,000/- in cash which is not permissible in terms of S.269SS of Income Tax Act - Further, transaction was not evidenced in any income -tax return - In circumstances complainant having failed to establish that cheque was issued in discharge of any legally enforceable debt or liability, complaint dismissed.
5. Sanjya Mishra -vs- Ms. Kanishka Kapoor @ Nikki and another, reported in 2009 Crl.L.J. 3777 wherein it has held that Negotiable Instruments Act (26 of 1881), 11 C.C.NO.14783/2012 Ss. 138, 139- Dishonour of cheque - Presumption as to issuance of cheque in discharge of legally enforceable debt - Amount advanced by complainant to accused was unaccounted cash amount - It was not disclosed in Income Tax Return - Liability to repay unaccounted cash amount cannot be said to be legally enforceable liability within meaning of explanation to S.138 - Acquittal of accused proper.
6. M/s. Aswin Papers -vs- B.G. Kalathil, reported in 2013 (2) DCR 427 wherein it has held that Negotiable Instruments Act, 1881 - Criminal Procedure Code, 1973
- Section 255(1) - Dishonour of cheque - Acquittal - Legality - Held - Prosecution has to establish and prove its case on its own footing and evidence and the same is not depend upon the failure of defence in proving its defence - In absence of any positive evidence from the part of complainant regarding execution of cheque, acquittal of accused is just and proper - No interference
- Petition dismissed.
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C.C.NO.14783/2012
7. Mr. B. Shivaram -vs- Mr. M.V. Venkatesh, reported in 2015 (1) DCR 642 wherein it has held that Negotiable Instruments Act, 1881 - Section 138 and 139 - Criminal Procedure Code, 1973 - Section 378 - Dishonour of cheque - Acquittal - Validity - Held - Where accused successfully rebutted the presumption under Section 139 of N.I.Act, by way of preponderance of probabilities, there acquittal of accused is just and proper.
8. Sri H. Manjunath -vs- Sri A.M. Basavaraju, reported in ILR 2014 KAR 6572 wherein it has held that Negotiable Instruments Act, 1881 - Section 138 - Offence under - Judgment of acquittal - Appealed against - Absence of statement in the complaint as to when the amount was actually given to the accused - Absence of material particulars of the transaction in the complaint - Except signature all other entries are in different handwriting, different ink and undoubtedly made at different time - Mentioning of merely the date of issue of cheque without any material particulars - Held, Judgment of Acquittal is justified - As seen from 13 C.C.NO.14783/2012 the complaint there is no statement as to when the amount was actually given to the accused. The complainant has merely mentioned the date of issuance of cheque without any material particulars of the transaction. The cheque in question undoubtedly is signed by the accused. The dispute raised in entries made in the cheque are not in his handwriting. - It is not the case of the complainant that cheque was issued in blank and filled up later with consent of the accused. FURTHER HELD, Perusal of the cheque at Ex.P1 makes it manifest that except signature all other entries are in different handwriting, different ink and undoubtedly made at different time. In this view it is difficult to accept the version of the complainant. - Criminal Procedure Code, 1973 - Section 378(4) - Appeal against acquittal - Discussed.
10. It is pertinent to note here that, the burden heavily lies upon the complainant to substantiate that on 20.05.2011 he possessed with him a sum of Rs.3,00,000/- and on very same day he advanced the same to the accused.
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C.C.NO.14783/2012 It is pertinent to note here that, the complainant in his complaint and in his examination-in-chief has not disclosed about his source of income. It is pertinent to note here that, the complainant has also not produced before the Court any document such as his Bank account statement, Pass book etc., to substantiate that on 20.05.2011 he possessed with him a sum of Rs.3,00,000/- and he advanced the same to the accused. It is pertinent to note here that, the complainant in his cross- examination in page No.8 at 9th line has deposed that, ºÀtªÀ£ÀÄß PÉýzÀ ¢£ÀªÉà DgÉÆæUÉ ºÀtªÀ£ÀÄß PÉÆmÉÖ. D ¢£À ºÀt £À£Àß §½AiÀÄ°èAiÉÄà EvÀÄÛ. £À£Àß ºÀwÛgÀ D ¢£ÁAPÀzÀAzÀÄ ªÀÄÆgÀÄ ®PÀë gÀÆ ºÀtªÀ£ÀÄß EvÀÄÛ JAzÀÄ vÉÆÃj¸À®Ä zÁR¯É E®è, ºÀtªÉà EvÀÄÛ.
It is pertinent to note here that, from the said evidence of the complainant it clearly appears that on alleged date he was not at all possessed with him a sum of Rs.3,00,000/- and he had not advanced the same to the accused. It is significant to note here that, if at all the complainant possessed with him a sum of Rs.3,00,000/- on alleged date then he could have definitely 15 C.C.NO.14783/2012 produced the documents before the Court. It is significant to note here that, in absence of any cogent, reliable and material evidence the contention of the complainant that the accused on 20.05.2011 had requested him for advancing him a sum of Rs.3,00,000/- and on very same day he advanced the same to him cannot be accepted.
It is further pertinent to note here that, the complainant in his cross-examination in page No.8 at 19th line has specifically deposed that he informed his wife about advancing a sum of Rs.3,00,000/- to the accused. It is pertinent to note here that, the complainant to substantiate his aforesaid contention has not examined his said wife.
11. It is pertinent to note here that, the complainant in his evidence has specifically relied upon EXs.P5 to 8. It is pertinent to note here that, EX.P5 is the Letter issued by the Bengaluru Electricity Company Ltd., to the complainant, EX.P6 is the Licence renewal certificate, EX.P7 is notary attested copy of Letter issued by Joint Director, District Industries Center, Bengaluru and Electricity bill at EX.P8. It is pertinent to note here that, EXs.P5 to 8 will not come to the aid of the 16 C.C.NO.14783/2012 complainant to substantiate that on 20.05.2011 he possessed with him a sum of Rs.3,00,000/- and he advanced the same to the accused.
It is pertinent to note here that, the complainant has specifically contended that the accused for the purpose of his furniture business had availed from him the said loan amount. It is significant to note here that, from perusal of EX.D1 it clearly appears that in the year 2010 the accused had closed his aforesaid business. It is significant to note here that, in view of the same, the contention of the complainant that the accused for his furniture business had availed from him the said loan amount cannot be accepted.
It is pertinent to note here that, in the instant case from the entire evidence of the complainant it clearly appears that on 20.05.2011 he was possessed with him a sum of Rs.3,00,000/- and he had not advanced the same to the accused. It is pertinent to note here that, the complainant has failed to prove the existence of legally recoverable debt. 17
C.C.NO.14783/2012 It is significant to note here that, the complainant in cross- examination of the accused in page No.7 at 7th line has elicited as under:-
¸À£ï 2011gÀ°è £Á£ÀÄ ¸ÀzÀj ¦ügÁåzÀÄzÁgÀjAzÀ ¸ÀzÀj ¸Á®ªÀ£ÀÄß ¥ÀqÉAiÀÄĪÀ ¸ÀAzÀ¨ÀsðzÀ°è ±ÁgÀzÁ PÁ¯ÉÆäAiÀÄ°è ªÁ¸À ªÀiÁqÀÄwÛzÉÝ JAzÀgÉ ¸Àj. ¸ÀzÀj ±ÁgÀzÁ PÁ¯ÉÆäAiÀÄ ºÀwÛgÀ MAzÀÄ §¸ï¸ÁÖ¥ï EgÀÄvÀÛzÉ JAzÀgÉ ¸Àj.
It is pertinent to note here that, the said stray admission of the accused will not come to the aid of the complainant. It is pertinent to note here that, the complainant has to prove his case with all preponderance of probabilities and he cannot rely upon the weakness of the accused and on stray admissions given by him. It is pertinent to note here that, as stated above the complainant has failed to prove the existence of legally recoverable debt.
12. It is pertinent to note here that, the complainant has specifically contended that the accused to discharge his legally enforceable debt on 20.05.2011 had issued in his favour a post dated Cheque bearing No.079895 dated:-20.12.2011 for a sum 18 C.C.NO.14783/2012 of Rs.3,00,000/- drawn on Syndicate Bank, Basaveshwaranagar branch, Bengaluru - 560 079.
It is pertinent to note here that, the complainant to substantiate his contentions in his evidence has got marked a post dated Cheque bearing No.079895 dated:-20.12.2011 for a sum of Rs.3,00,000/- drawn on Syndicate Bank, Basaveshwaranagar branch, Bengaluru - 560 079, at EX.P1.
13. It is pertinent to note here that, the complainant in support of his contentions has placed his reliance on following decisions:-
1. Girishbhai Natvarbhai Patel -vs- State of Gujarat and another, reported in 2006 Crl.L.J. 3378 wherein it has held that Negotiable Instruments Act (26 of 1881), Ss.138 and 139 - Presumption under S.139 - Rebuttal of
- Plea by accused that cheques in question were not issued in relation to any transaction between parties -
Signature of accused on cheques in question not denied by him - Accused not choosing to examine himself to prove that cheques were not issued in relation to any transaction between parties - Accused thus, failed to 19 C.C.NO.14783/2012 discharge his burden to dislodge presumption - Held, that accused was guilty of offence under S.138.
2. S.V. Rao -vs- Credential Finance Ltd., and others, reported in 2006 Crl.L.J. 1999 wherein it has held that Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of cheque - Cheque was issued by accused towards repayment of amount financed by complaint under bill counting system - There was no suggestion from accused that complainant was professional money lender and was lending money without license - Having admitted issuance of cheque, burden was on accused to prove that it was in connection with bill re-discounting system and hence debt was not legally enforceable debt
- Accused, however, remained silent despite issuance of statutory notice and did not make arrangement for payment - All accused, except those, who resigned prior to issuance of cheque, are, therefore, liable to be convicted.
3. K.N. Beena -vs- Muniyappan and another, reported in (2001) 8 SCC 458 wherein it has held that Negotiable 20 C.C.NO.14783/2012 Instruments Act, 1881 - Ss.138 and 139 and 118(a) - Presumption under - Burden to prove that the dishonoured cheque was issued to discharge a debt or liability - Held, in view of the provisions contained in Ss.118 and 139, the court has to presume that the cheque had been issued for discharging a debt or liability
- However, the said presumption could be rebutted by the accused by proving the contrary - Mere denial or rebutted by accused in the reply to the legal notice sent by encashment complainant not enough - Accused had to prove by cogent evidence that there was no debt or liability - Evidence Act, 1872, Ss.114 III. (c), 101-103, 3 and 4 - Criminal Trail - Presumption of innocence - Presumption under Ss.1189a), 139 and 138 of the Negotiable Instruments Act.
4. Krishna Janardhan Bhat -vs- Dattatraya G. Hegde, reported in AIR 2008 Supreme Court 1325 wherein it has held that Negotiable Instruments Act (26 of 1881), Ss.138, 139 - Dishonour of cheque - Defence - Proof - Accused not required to step into witness box - He may 21 C.C.NO.14783/2012 discharge his burden on basis of materials already brought on record - Question whether statutory presumption rebutted or not - Must be determined in view of other evidences on record.
5. Devidas S. Mardolkar -vs- Harichandra Mandrekar, reported in 2009 (1) DCR 592 wherein it has held that Negotiable Instruments Act, 1881 - Section 138 and 139
- Appeal against acquittal - Determination of presumption in favour of holder of cheque - Held - In case of dishonour of cheque it has to be presumed that cheque is issued in discharge of any debt or liability - Burden of proof is on the person who wants to rebut the presumption.
14. It is pertinent to note here that, the complainant has also produced before the Court the xerox copy of the Judgment rendered by the Hon'ble XVI ACMM., Bengaluru, in C.C.No.50/2014 dated:- 27.02.2018 to show that one Shri Ramana Reddy D.V.- the complainant had lodged the complaint against one Shri H. Ramesh - accused and the said Court had convicted the accused.
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15. It is pertinent to note here that, the accused in his evidence has specifically contended that one Shri Vijaya Kumar- the Learned counsel was dealing with the cases pertaining to his wife and at that time he uses to give him the fees either in cash or through his signed blank cheques. That, the accused has further contended that he had issued the EX.P1 in favour of the said counsel and he signed on it, but, he had not written the contents of EX.P1.
16. It is pertinent to note here that, the accused in support of his contentions has placed his reliance on following decisions:-
1. Laxminivas Agarwal -vs- Andhara Semi Conductors Pvt. Ltd., and others, reported in 2006 Crl.L.J. 2643 wherein it has held that Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of cheque - Merely because signatures in cheques are admitted, it cannot be said in all cases that drawer of said cheque is liable for punishment under S.138.
2. Santhi -vs- Mary Sherly, reported in 2012 (1) DCR 385 wherein it has held that Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Admission 23 C.C.NO.14783/2012 of signature - Legality - Held - Admission of signature in a cheque leaf alone will not constitute admission of execution of cheque.
3. Baiju G. Nath Laiju Nivas -vs- Girija Krishnakumar, reported in 2012 (2) DCR 741 wherein it has held that Negotiable Instruments Act, 1881 - Section 138 and 139
- Acquittal - Held - For offence under Section 138 of N.I. Act as the execution of cheque is not proved in any manner the complainant is not liable with the presumption under Section 139 of N.I. Act - There is no evidence for passing of consideration for the execution of cheque, so mere admission of signature on cheque does not prove a legally enforceable debt - Acquittal is just and proper - Petition dismissed.
4. C. Antony -vs- K.G. Raghavan Nair, reported in IV (2006) BC 295 (SC) wherein it has held that Dishonour of cheque - Acquittal by Trail Court - High Court on reappreciation of evidence came to different conclusion on entirely new grounds without considering material considered by Trial Court and convicted appellant - High 24 C.C.NO.14783/2012 Court as an Appellate Court obliged to come to definite conclusion that findings of Trial Court are either perverse or contrary to material on record - Non-examination of Advocate and C.P. to whom appellant alleged to have given blank cheque in regard to Chit transaction, fatal to case of complainant/respondent - It was necessary piece of evidence to establish fact that respondent advanced sum of Rs.26,500/- to appellant - Trial Court further found ink used in body of cheque was different from ink used in signature of cheque and case put froth by respondent doubtful and could not be accepted - Trial Court justified that because of said deficiencies respondent's complaint ought to fail - High Court erroneously reversed finding of acquittal recorded by Trial Court - Negotiable Instruments Act, 1881 - Section
138.
17. It is pertinent to note here that, the accused has produced before the Court the xerox copy of the Order sheet in O.S.No.1726/2006 to show that the learned counsel Shri G. Vijay Kumar had contested the said suit for his wife by name Smt. 25 C.C.NO.14783/2012 Malini. That, the accused has also produced before the court the xerox copy of the Joint memo filed in said original suit to substantiate that the said counsel Shri G. Vijay Kumar had signed on it. It is pertinent to note here that, the accused has also furnished before the Court the xerox copy of the Absolute sale deed dated:-24.03.2005 to substantiate that the said counsel Shri G. Vijay kumar had prepared the said sale deed. It is pertinent to note here that, the accused has also furnished before the Court the xerox copy of the Memorandum of title deeds to substantiate that the said counsel Shri G. Vijay Kumar had signed on it as a witness.
18. It is pertinent to note here that, the burden lies upon the complainant to substantiate that the accused to discharge his legally enforceable debt had issued in his favour EX.P1. It is pertinent to note here that, in present case the accused on 18.12.2017 had filed an application under Section 91 of Code of Criminal Procedure, with a prayer to direct the Branch Manager/concerned authorities of Syndicate Bank, Basaveshwaranagar branch, Basavehswaranagar, No.15/28, Havanur Complex, 1st Stage, KHB Colony, Havanur Circle, 26 C.C.NO.14783/2012 Bengaluru - 560 079, for producing before the Court the Current account number of the accused i.e., 06511010000459 from 2008 to 2011 and this Court on 09.01.2018 had allowed the said application and directed the Manager of the said branch for producing the aforesaid documents. That, on 28.03.2018 the said Manager had produced before the Court the aforesaid document from 01.01.2008 to 31.01.2012. It is pertinent to note here that, the number of the cheque in question is 079895. It is pertinent to note here that, from perusal of the said account statement it appears that on 30.01.2009 the accused had issued a Cheque bearing No.079899 in favour of one Shri Vijay Kumar G. It is pertinent to note here that, the cheque in question and the aforesaid cheque are of same series. It is to be noted here that, as stated above the accused had issued the cheque bearing No.079899 to the said Vijay Kuamr G on 30.01.2009 and if such being the case, the question of issuing the cheque in question by the accused to the complainant in the year 2011 does not arise at all. It is to be noted here that, from the said conduct of the complainant it clearly appears that the accused had not issued the cheque in question to the complainant to discharge his 27 C.C.NO.14783/2012 legally enforceable debt. It is pertinent to note here that, the said conduct of the complainant itself strengthen the defenses taken by the accused. It is pertinent to note here that, in view of My above findings and without much discussion I hold that, the complainant has failed to prove that the accused had issued the cheque in question to discharge his legally enforceable debt. In view of the same, point No.1 is answered in the NEGATIVE.
19. Point No.2:- That, the complainant has specifically contended that on 20.12.2011 he presented the EX.P1 for encashment in Canara Bank, Vijayanagar branch, Bengaluru - 40 and on 23.12.2011 the same was returned with the shara as 'Funds Insufficient' and for which he issued the legal notice to the accused on 28.12.2011 and the same was duly served upon him on 31.12.2011.
It is pertinent to note here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked a Cheque return memo issued by the said Bank at EX.P2, Legal notice issued to the accused dated:-28.12.2011 at EX.P3, Postal receipt at EXs.P3(a) and 3(b) and Postal acknowledgement at EX.P3(c).
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C.C.NO.14783/2012 It is to be noted here that, as discussed on point No.1, the complainant has failed to prove that the accused to discharge his legally enforceable debt had issued in his favour EX.P1 and if such being the case, the question of committing the offence by the accused under section 138 of the Negotiable Instruments Act, does not arise at all. It is to be noted here that, in view of My above findings and without much discussion I hold that, the complainant has failed to prove that the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act. In view of the same, point No.2 is answered in the NEGATIVE.
20. Point No.3:-That, as discussed on points No.1 and 2, I proceed to pass the following:-
ORDER That, acting under section 255(1) of Code of Criminal Procedure, the accused is acquitted for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the bail and surety bonds of the accused are stands cancelled.
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C.C.NO.14783/2012 That, the accused shall comply with the provisions of section 437(A) of the Code of Criminal Procedure. (Dictated to Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 16th day of May 2018) (Hema Pastapur) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Shri M.C. Ramadas s/o Chikkavenkataramanappa.
List of exhibits marked on behalf of complainant:-
Ex.P1 : Original cheque;
Ex.P1(a) : Signature of the accused;
Ex.P2 : Cheque return memo;
Ex.P3 : Legal notice dated:-28.12.2011;
Exs.P3(a) and (b) : Postal receipt;
Ex.P3(c) : Postal acknowledgement;
Ex.P4 : Original complaint;
Ex.P5 : Letter issued by Bengaluru Electricity
Company Ltd.,;
Ex.P6 : Trade License;
Ex.P7 : Notary attested copy of Letter issued by
Joint Director, District Industries Center, Bengaluru and 30 C.C.NO.14783/2012 Ex.P8 : Electricity Bill.
List of witnesses examined on behalf of the accused:-
DW.1 : Shri S.R. Surya Prakash s/o Rangappa.
List of exhibits marked on behalf of the accused:-
Ex.D1 : Letter dated:-27.08.2010.
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.31