Bangalore District Court
Sri.K.Prasanna Kumar vs Sri.Prashanth Kumar.M.R on 5 March, 2021
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU
(CCH.20)
:Present:
Sri.D.S.VIJAYA KUMAR, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru
th
Dated this the 5day of March, 2021
Crl.Appeal No.25057/2017
Appellant:- Sri.K.Prasanna Kumar,
S/o Y.K.Kambaiah,
Aged about 48 years,
R/a. Ananda Nilaya,
Bairaveshwara Prasanna,
No.115/2, 5th Link Road, Near
Siddivinayaka Temple,
Kathriguppe, Bengaluru -85.
[By Sri.S.G.V-Advocate]
Vs.
Respondent:- Sri.Prashanth Kumar.M.R.,
S/o Ramachandra,
Aged about 26 years,
R/a. No.414/415, Kaveri
Extension, Behind Vivekananda
Ashrama, Whitefield Road,
Hoody, Bengaluru - 560 048.
[Absent- Ex-parte
JUDGMENT
The Appellant/Accused has filed this Criminal Appeal under Section-374(3) of the Cr.P.C., 2 Crl.A.No.25057/2017 questioning the Common Judgment of Conviction and sentence dtd. 18.03.2017 passed in C.C.Nos. 51681/2013 and 51683/2013 by the LVIII Additional Chief Metropolitan Magistrate, Mayo Hall, Bengaluru, wherein the appellant/accused has been convicted in C.C.No.51681/2013 for the offence under section 138 of Negotiable Instruments Act, 1881 and sentenced to pay a fine of Rs.1,50,000/- with default sentence of simple imprisonment of 3 months and out of the fine amount ordered a sum of Rs.1,45,000/- to be paid to the complainant and in default to pay fine, ordered that the Appellant/ Accused shall undergo simple imprisonment for a period of 3 months. Further, appellant/accused has been convicted in C.C.No. 51683/2013 for the offence u/s.138 of Negotiable Instruments Act, 1881 and sentenced to pay a fine of Rs.1,50,000/- with default sentence of simple imprisonment of 3 3 Crl.A.No.25057/2017 months and out of the fine ordred a sum of Rs.1,45,000/- to be paid to the complainant. In default to pay fine it is ordered that the Appellant/Accused shall undergo simple imprisonment for a period of 2 months.
2. Brief facts of the Complainant/respondent's case before the lower court in C.C.No.51681/2013 are as under:-
That the Appellant/Accused was known to the Complainant/respondent for many years and the Appellant/Accused had promised to open BPO and share trading business and in that connection was in the habit of availing hand loans periodically from the Complainant/respondent to meet his financial exigencies. In the month of March 2010 the Appellant/Accused availed hand loan of Rs.2.00 lakhs from the complainant promising to repay the 4 Crl.A.No.25057/2017 amount by January 2012. Thereafter, Appellant/ Accused failed to keep up the promises and after repeated request and demand by the Complainant/ respondent, Appellant/Accused issued cheque bearing No.418158 dtd.3.4.2012 for Rs.1,00,000/- drawn on HDFC Bank, Kathriguppe Branch, Bengaluru in favour of complainant. Complainant/ respondent presented the said cheque through his Banker-State Bank of Mysore, Hoodi Branch, Bengaluru on 17.05.2017. Complainant was holding the said Account with the Bank along with his friend by name Mr. Anil Kumar J.V. and hence complainant banker issued a common endorsement along with his friend's account. As per the return memo issued by the Banker the Appellant/Accused had closed his account. Return Advice memo is dtd. 18.05.2012. After the cheque was returned with shara 'Account Closed' complainant got issued a Legal notice dated 5 Crl.A.No.25057/2017 08.06.2012 to the Appellant/Accused and same was served at the Accused residential address through RPAD. However, the Appellant/Accused failed to make payment of the cheque amount and hence, complainant was constrained to file a private complaint in PCR No.1235/2012 on 21.07.2012.
3. Brief facts of the complainant's case before the trial court in C.C.No.51683/2013 is similar as in C.C.No.51681/2013, barring the fact that the cheque in C.C.No.51683/2013 was issued for the balance amount of Rs.1,00,000/- on 2.1.2011 and the said cheque is bearing no.404474 dtd. 3.4.2012 for Rs.1,00,000/- drawn on HDFC Bank, Kathriguppa Branch, Bengaluru. It is stated that the said Cheque was also dishonoured with shara 'Account Closed'. Complainant had presented the said cheque as well through his banker State Bank of Mysore, Hoodi Branch, Bengaluru which was being 6 Crl.A.No.25057/2017 held by the complainant along with his friend Anil Kumar J.V. and the return memo was issued commonly along with his friend's account. Legal notice is also said to have been issued on 8.6.2012 through RPAD and it is claimed that it was served at the Accused residential address through RPAD, but the Appellant/Accused failed to pay the cheque amount and hence private complaint in P.C.R.No.1236/2012 dtd. 21.07.2012 was filed.
4. Pursuant to the private complaints filed above, cognizance has been taken and sworn statements have been recorded in both the cases and the Appellant/Accused has been summoned and after trial the Appellant/Accused has been found guilty of the offence punishable under section 138 of Negotiable Instruments Act,1881 in both the cases with the result of passing impugned sentence. 7
Crl.A.No.25057/2017
5. Appellant/Accused has challenged the impugned judgment of conviction and order of sentence in C.C.No.51681/2013 and C.C.No. 51683/2013 by filing a single appeal against common judgment of conviction and order of sentence dtd. 18.03.2017 on the following grounds:-
The impugned judgment of conviction and order of sentence is illegal and suffers from serious legal infirmities. Complainant/respondent has failed to disclose the exact date, month and year of the loan transaction either in the complaint or in the notice or in the affidavit filed for examination in chief. The impugned judgment is passed without considering the defence taken by the Appellant/ Accused. The Trial court has not appreciated the legal aspects pertaining to the existence of the legally enforceable debt. Legal fiction under section 8 Crl.A.No.25057/2017 139 of Negotiable Instruments Act,1881 has not been properly appreciated. In a casual manner the Trial court has proceeded to hold that the cheques were issued to discharge the legally enforceable debt merely because the Accused admits that the cheques in question belong to him. Trial court failed to appreciate the acquittal of the Appellant/Accused in C.C.Nos.147-153/2013 passed by the Learned 20 th Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru. Complainant in C.C.No.5918/2013 and his family members in C.C.No.147 to 153/2013 had filed it against the Appellant/Accused on the same grounds. Appellant/Accused adduced same evidence in those cases and he has been acquitted.
Complainant has given evidence in the present cases similar to the evidence given in C.C.Nos. 147 to 153/2013, but the Trial court failed to appreciate the facts and circumstances and the doubtful document 9 Crl.A.No.25057/2017 of the complainant. Trial court failed to appreciate the different version given by the complainant during his cross examination compared to the complaint averments and documents relied on by him. Trial court did not appreciate the ratio decidendi in the reported judgments. Admission elicited in the cross examination of the Complainant/ respondent were not taken into consideration. Therefore, the impugned judgment of conviction and order of sentence dtd. 18.03.2017 in C.C.No. 51681/2017 and C.C.No.51683/2017 are liable to be set aside and the Appellant/Accused is entitled to be acquired. Thus, the Appellant/Accused has sought for allowing the appeal.
6. L.C.Rs. have been secured and perused.
7. Inspite of affording sufficient opportunity neither the counsel for Accused nor the Respondent has submitted arguments in the Appeal. Liberty was 10 Crl.A.No.25057/2017 reserved to file the written arguments, but the same also has not been submitted.
8. Now the points that arise for my consideration are:-
1. Whether Complainant/Respondent has complied with Sec.138(a) to (c) of the Negotiable Instruments Act,1881 in filing the complaints in C.C.No.51681/2013 and C.C.No. 51683/ 2013?
2. Whether the Complainant/ respondent has proved that Ex.P.1 cheque marked in C.C.No. 51681/2013 and C.C.No.51683/2013 were issued for discharging the legally enforceable debt or liability?
3. Whether Complainant/respondent has proved that the Appellant/ Accused has committed the offence U/S. 138 Negotiable Instruments Act, 1881, beyond reasonable doubt?11
Crl.A.No.25057/2017
4. Whether the impugned judgment of conviction and order of sentence dtd. 18.03.2017 in C.C.No. 51681/ 2013 and 51683/2013 is illegal and calls for interference?
5. What order?
9. My answer to the above points are as follows:-
POINT No.1 :- In the negative
POINT No.2 :- In the negative
POINT No.3 :- In the negative
POINT No.4 :- In the affirmative
POINT No.5 :- As per final order
for the following
REASONS
10. POINT No.1:- Sum of the details of the cheque marked at Ex.P.1 in both CC No.51681/2013 and 516832/2013, their presentation dates, date of 12 Crl.A.No.25057/2017 issuance of notices, date of presenting the cheques, are tabulated for the sake of convenient understanding as below:-
C.C. Date of Cheque Date of Return Date of Date of Date of Nos. Cheque- Amt. presentati Memo Legal Postal present Exhibit (Rs.) on of and notice & Ack. & ation Cheque Exhibit Exhibit Exhibit of compla int.
51681/ 3.4.2012 1.00 17.5.2012 Nil 08.6.2012 11.6.2012 21.07.2 2013 Ex.P.1 lakh Ex.P.2 Ex.P.4 012 51683/ 3.4.2012 1.00 17.5.2012 Nil 08.6.2012 11.6.2012 21.07.2 2013 Ex.P.1 lakh Ex.P.2 Ex.P.4 012 As can be seen from the above, Ex.P. 1 in both the cases are cheques dated 03.04.2012. They have been presented for encashment on 17.05.2012. So, cheques have been presented within its validity period and then legal notices are issued as per Ex.P.2 dtd.08.06.2012. Ex.P.4 are the Postal Acknowledgements for having received the said legal notices by the Appellant/Accused. Thereafter, 13 Crl.A.No.25057/2017 both the complaints have been presented on 21.07.2012.
11. In both the complaints, Complainant/ respondent and Appellant/Accused have lead similar evidence. Cheques pertaining to C.C.No.51681/2013 has been marked as Ex.P.1. In the said case, cheque is bearing No.418158 and it is dated 03.04.2012 issued for Rs.1,00,000/-. Ex.P.2 is the legal notice dtd. 8.6.2012 issued by the complainant in respect of the dishonour of the Cheque- Ex.P.1. Ex.P. 3 is the postal receipt and Ex.P.4 is the postal Acknowledgement regarding the service of Ex.P.2 Notice on the Appellant/Accused. Cheque marked at Ex.P.1 has been affixed with Seal "Account Closed".
12. Similarly in C.C.No.51683/2013 cheque is marked as per Ex.P.1 which is bearing NO.40447 dtd. 3.4.2012 and issued for Rs.1,00,000/- and on the said 14 Crl.A.No.25057/2017 cheque also there is a Seal affixed as "Account closed". Ex.P.2 is the legal notice dtd. 8.6.2012 and Ex.P.3 is the Postal receipt and Ex.P.4 is the postal Acknowledgement regarding service of Ex.P.2 on the Appellant/Accused.
13. Section 138 of the Negotiable Instruments Act,1881 reads as follows:-
"Section 138 in The Negotiable Instruments Act, 1881:-
138 Dishonour of cheque for insufficiency, etc., of funds in the account.
--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that 15 Crl.A.No.25057/2017 nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.]"
As per clause (b) of Sec. 138 of the Negotiable Instruments Act,1881, payee or the holder in due course of the cheque should make a demand for payment of the cheque amount by giving a notice in writing to the Accused within 30 days of the receipt 16 Crl.A.No.25057/2017 of the information by him from the Bank regarding return of the cheque as unpaid. So, complainant should establish that from the date of return of the cheque he issued legal notice within 30 days calling upon the Appellant/Accused to pay the cheque amount. In this case Ex.P.1 in both the complaints are dtd. 3.4.2012 and the legal notice in both the cases are marked as per Ex.P.2 dtd. 8.06.2012. When so, except for vaguely stating in the complaint that the return advice dtd. 18.05.2012 was issued by the Complainant's banker regarding dishonour of cheque with a shara 'Account Closed', the Complainant has actually not chosen to produce the Return memo before the court to prove the date of receipt of information of the dishonour of the cheque- Ex.P.1 in both the cases. Appellant/Accused is denying the entire transaction though admits that the cheques marked at Ex.P.1 in both the cases 17 Crl.A.No.25057/2017 belong to him. He contends that he had lost the said cheques and in that connection he has lodged complaint to the police and claims that the Complainant was not known to him until these complaints were filed before the court. Since the defence of the Appellant/Accused is total denial of the Complainant's case, it was incumbent on the Complainant to produce the return memo/advise issued by his banker to prove the date of receipt of intimation of the dishonour of the cheque by him. But, the complainant has not chosen to produce the Bank return Memo before the court to prove the date of intimation received by him regarding dishonour of cheques in question. In this connection it is necessary to note the complaint avermetns at para-4 in both the complaints which are similar, which reads as below:-
"4. It is submitted that the complainant presented the said cheque issued by the Accused 18 Crl.A.No.25057/2017 through his bankers, State Bank of Mysore, Hoodi Branch, Bangalore on 17.05.2012, complainant is holding his account with his friend by name Mr.Anil Kumar.J.V. and as such complainant banker has given a common endorsement along with his friends account since the drawer of the cheque/i.e, yourself is one and the same and to the shock and surprise of the complainant, the said cheque issued by the accused is returned without encashment with a shara as 'Account Closed'. The xerox copy of the return advise dtd. 18.05.2012 issued by the HDFC Bank, Kathriguppa Branch, Bangalore- 85 is produced herewith the kind perusal of this Hon'ble court and marked as 'Document No.2".
As per the above averments at para-4 of both the complaints which are similar, complainant actually states that he was holding his account with his friend by name Anil Kumar J.V. and the Banker has given common engrossment along with his friends account. It indicates that according to the complainant he was holding a joint account with one Anil Kumar J.V. and a common endorsement is claimed to have been issued by the Banker regarding dishonur of the cheques in question. When that is so, Complainant/respondent fails to produce the 19 Crl.A.No.25057/2017 said return advise/endorsement issued by the Banker to prove the date of intimation of dishonour received by him regarding the subject matter of cheques. Cross examination evidence of the Complainant/PW.1 shows that actually the Complainant had no acquaintance with the Accused at all. Complainant states that in the year 2010, Accused was introduced to him by his friend Anil Kumar. Whereas, the loan transaction is also said to have been taken place in the year 2010. In substance, according to the evidence of the Complainant during his cross examination he had not even spoken to the Appellant/Accused and even address of the Accused was given to him by his friend Anil Kumar. When that is so, at para-4 of the complaint it is stated that the Complainant was having his account with his friend Anil Kumar and common endorsement was issued to the complainant. It is incumbent on the complainant 20 Crl.A.No.25057/2017 to prove that actually the cheque was presented through his account or joint account and also dishonour of the cheques was intimated to him on 18.05.2012 and within 30 days from the said date, Legal notice at Ex.P.2 was issued on 08.06.2012. However, complainant has not chosen to produce return advice before the court to prove the date of intimation about the dishonour of cheque received by him since the cheques marked at Ex.P.1 are dtd. 3.4.2012 and the legal notices are dated 8.6.2012. In the absence of the complainant proving the date of receipt of information regarding the dishonour of the cheques in question, it is not possible to examine whether the legal notice has been issued within 30 days from the date of receipt of intimation of the dishonour of the cheque by the complainant. Since the defence is that of total denial, complaint version that the return memo was given to him on 21 Crl.A.No.25057/2017 18.05.2012 cannot be accepted on the basis of the self statement in the evidence affidavit and complaint averments. Therefore, non production of the return advice to prove the date of receipt of intimation of the dishonour of the cheques raises doubt in the case.
14. That apart, address furnished in the legal notices can be held to be correct address of the Appellant/Accused because in the cross examination of the Accused/D.W.1 he admits that he is residing in the said address furnished in the cause title of the complaint, which is the same address furnished in the legal notice and postal Acknowledgement. Therefore, service of legal notice on the accused has actually been proved. However, in the absence of the complainant producing the return advice/memo, to prove the date of receipt of the dishonour of cheques, I am of opinion that Ex.P.2 notice cannot be 22 Crl.A.No.25057/2017 held to have been issued within thirty (30) days from the date of intimation of the dishonour of the cheques in question. Hence, I am of opinion that the complainant has not proved Sec. 138(b) of the Negotiable Instruments Act,1881. Consequently, Point No.1 is answered in the negative.
15. Point Nos.2 and 3:-In the complaint as well as the Affidavit filed for examination in chief by the Complainant, it is stated that in the month of March 2010 the Appellant/Accused borrowed as sum of Rs.2,00,000/- by promising to return the amount by January 2012. As mentioned earlier Accused/DW.1 stoutly denies the entire case of the complainant by going to the extent of contending that the Complainant was not known to him until these complaints were filed. When so, on page-5 of the cross examination of the Complainant/PW.1 in both 23 Crl.A.No.25057/2017 the cases states that he saw the Accused (for the first time) in 2010 and he does not remember when he saw the Accused. He states that through his friend Anil Kumar he came to know of the Accused. His relevant statement on pages 5 and 6 of the cross examination is as below:-
"ನನನನ 2010 ರಲಲ ಆರರರರಪಯನನನ ನರರರಡದನದ ನನತರ ಪರಚಯ ಆಯತನ. ಯನವ ತನಗಳಲಲ ಆರರರರಪಯನನನ ನರರರಡದರದ ಎನಬನದನನನ ನನಗರ ಈ ಹರರಳಲನಗನವವದಲಲ. ಆರರರರಪಯ ಪರಚಯವವ ನನಗರ ನನನ ಸರನರಹತನನದ ಅನಲಲ ಕನಮನರಲ ಎನನನವವರ ಮರಲಕ ಆಯತನ".
Contrary to the above statement, at para-2 of the complaint, the complainant states as below:-
"It is submitted that the accused is a known person to complainant since many years and as such with a promise to open B.P.O and share trading business the accused used to avail hand loans from time to time from complainant whenever he had financial difficulties".
Aforesaid contradictory version shows P.W.1 is lying before the court as to from when he knew the accused.
24
Crl.A.No.25057/2017 Complainant/PW.1 admits that even his friend Anil Kumar has filed cheque bounce cases in C.C. No.51665/2013. He states that Anil Kumar introduced the Accused at one JCS Finance Company which was on Mahadevapura Ring Road. When it was suggested that the Accused is working as teacher in Government School, he denies knowledge of the same. He also denies knowledge as to how his friend Anil Kumar had come to know of the Accused. His relevant statement is at page-6 of his cross examination, which is as below:-
"ಆರರರರಪಯನ ಸಕನರರ ಶನಲರಯ ಶಕಕಕರನ ಎನದರರ ನನಗರ ಗರರತತಲಲ. ಆರರರರಪಗರ ಹನಗರ ಅನಲಲ ಕನಮನರಲ ರವರಗರ ಪರಚಯ ಹರರಗನಯತನ ಎನಬನದನ ನನಗರ ನದರಷಷವನಗ ಗರರತತಲಲ".
As per the defence put forth in the cross examination of the Complainant/PW.1, the Accused had never gone to JCS finance company and he was never introduced to the Complainant. In line with the 25 Crl.A.No.25057/2017 said defence when the complainant was further asked to state whether there was direct talk between him and the accused, he admits that there was no direct talk between the Accused and him at any point of time. But, after admitting same, he has retracted by saying that at JCS finance office they had spoken to each other. His relevant statement is on page 6 of his cross examination, which is as below:-
"ನನಗರ ಮತನತ ಆರರರರಪಗರ ಯನವತರತ ಸಹನ ನರರರವನಗ ಮನತನಕತರ ಆಗರಲಲಲ ಎನದರರ ಸರ . ಸನಕಕ ಪವನನ ಹರರಳನತನತರರ ನನಗರ ಮತನತ ಆರರರರಪಗರ ಫರಫನನನನನನ ವಚನರವನಗ ಮನತನಕತರ ಆಗತನತ ಎನದನ".
Appellant/Accused contends that since he was working as a Government school teacher there was no question of his starting a BPO company as claimed by the complainant. Whereas, the complainant states that the Accused asked for loan for starting the BPO company. In the first sentence 26 Crl.A.No.25057/2017 of the opening para-7 of the cross examination when it was suggested that the Appellant/Accused was working as teacher in Government Higher Primary School at Kathriguppe, PW.1 states that same may be true. Then, he states that he was not aware of the Accused's address which is furnished by him in the complaint cause title and he obtained the Accused said address from his friend Anil Kumar. His relevant statement on page 7 of the cross examination is as below:-
"2010 ರಲಲ ಆರರರರಪಗರ ಕತತಗನಪರಪ ಸನಗಮರಶಶರ ಪನತಥಮಕ ಶನಲರಯಲಲ ಸಕನರರ ಶಕಕಕರನಗ ಕರಲಸ ಮನಡನತತದದರನ ಎನದರರ ಇರಬಹನದನ. ಅವರನ ಕತತಗನಪರಪಯಲಲಯರ ವನಸವನಗದದರನ ಎನದರರ ನನಗರ ಗರರತತಲಲ . ದರರನಲಲ ಕನಣಸದ ಆರರರರಪಯ ವಳನಸ ನನಗರ ಗರರತತರಲಲಲ ಎನದರರ ಸನಕಕ ಹರರಳನತನತರರ ನನನನ ನನನ ಸರನರಹತರನದ ಅನಲಲ ಕನಮನರಲ ರವರನದ ಸದರ ವಳನಸವನನನ ತಳದನಕರರನಡನ ಕನಣಸದರದರನರ ಎನದನ".
Above said statement of the Complainant/PW.1 shows that he is not aware of any of the basic details 27 Crl.A.No.25057/2017 of the Appellant/Accused. Though he claims that he has lend Rs.2.00 lakhs to the Appellant/Accused he says that he was not aware of the Accused address and he obtained the Accused address which is furnished in the cause title of the complaint through his friend Anil Kumar. On Page-8 of the cross examination he further states that he cannot state as to in which month and on what date the Accused asked him for loan. But, he states that in the year 2010 Accused had asked for loan. On page-8 of his cross examination he states that he cannot precisely state the place where he handed over the loan amount of Rs.2.00 lakhs to the Accused. His said statement on page-8 of his cross examination is as below:-
"ಆರರರರಪಗರ ಯನವ ಸಸಳದಲಲ ಎರಡನ ಲಕಕ ರರಪನಯಯನನನ ಕರರಟಷದರದ ಎನಬನದನನನ ನನಗರ ನದರಷಷವನಗ ಹರರಳಲನಗನವವದಲಲ". 28
Crl.A.No.25057/2017 Thus, even though the complainant claims that he has advanced a sum of Rs.2.00 lakhs by way of cash to the Appellant/Accused, he has not been able to state as to in which place he handed over/paid the said amount to the Appellant/Accused.
16. As per the complaint averments loan of Rs.2.00 lakhs was given to the Accused in the month of March 2010. Thereafter, the Accused failed to repay the amount. According to the averments at para-2 of the complaint the Accused had promised to repay the amount by January 2012. At para-3 of the complaint it is stated that since the Accused failed to repay the amount, complainant made repeated demands and finally on 2.1.2011, Accused issued both cheques Ex.P.1 for Rs.1,00,000/- each. Relevant avemrnts of para-3 of the plaint are as below:- 29
Crl.A.No.25057/2017 " It is submitted that in spite of repeated request and demand by the complainant, the Accused has not repaid the said amount of Rs.1,00,000/- (Rupees one lakh only) within stipulated period. The accused has not repaid the said loan amount even after several meetings and finally on 02.01.2011 the accused towards payment, issued a cheque bearing No.404474 dtd. 3.4.2012 for Rs.1,00,000/- drawn on HDFC Bank, Kathriguppe Branch, Bangalore-85 in favour of the complainant for repayment of the existing aforesaid debt". So according to the averments at paras-2 and 3 of the complaint loan was advanced in March 2010 and Accused had promised to return the loan amount by 2012 and after repeated demands the Accused gave cheques in question on 2.1.2011 but the cheques were post dated bearing date as 3.4.2012. Contrary to the same on page-8 of the cross examination complainant states that when he advanced the loan to the Accused itself, accused had given Ex.P.1 cheques to him towards security.
Relevant statement of the complainant/PW.1 on page-8 of his cross examination is as below:- 30
Crl.A.No.25057/2017 "ಆರರರರಪಯನ ನನನನ ಅವರಗರ ಹಣ ಕರರಟಷ ಸಮಯದಲಲಯರ ತಲನ ಒನದನ ಲಕಕದ ಎರಡನ ಚರಕನಕಗಳನನನ ಕರರಟಷದದರನ. ಸದರ ಎರಡನ ಚರಕನಕಗಳನನನ ಆರರರರಪಯನ ಭದತತರಗನಗ ಕರರಟಷದದರನ. ನನನನ ಹನಜರನಪಡಸದ ಎರಡನ ಚರಕನಕಗಳಲಲ ದನನನಕ, ಹರಸರನ ಮತನತ ಮತತವನನನ ನನನರರ ಬರರದರನತರತರನರ ಎನದರರ ಸರ".
17. Coming to the contention regarding the financial capacity of the complainant/respondent to lend Rs. 2.00 lakhs, it is elicited in the cross examination of Complainant/PW.1 on page-7 as follows:-
"ನನನನ ಆರರರರಪಗರ ಎರಡನ ಲಕಕ ರರಪನಯ ಸನಲವನಗ ಕರರಟಷದರದ . ನನನನ ಎರಡನ ಲಕಕ ರರಪನಯಯನನನ ಪಎಫಲ ಮತತದನದ, ಸರನರಹತರನದ ಕರಫಸನಲ ಮನಡ ಹನಗರ ಮನರಯನದ ಸಶಲಪ ಹಣವನನನ ಪಡರದನ ಆರರರರಪಗರ ಕರರಟಷದರದ. Tycod ಕನಪನಯಲಲ ನನನನ ಕರಲಸ ಮನಡನತತದನದ ಅಲಲನದ ಸನಮನರನ 20,000 ರರಪನಯ ಪಎಫಲಹಣ ಪಡರದನಕರರನಡದರದ . ಸದರ ಹಣವನನನ 2009 ರಲಲ ತರಗರದನಕರರನಡದರದ. ಆ ಕನರತನ ದನಖಲನತಯನನನ ಹನಜರನಪಡಸಲನ ಯನವವದರರ ತರರನದರರ ಇಲಲ. ನನಗರ ನದರಷಷವನಗ ಯನವ ಸರನರಹತರನದ ಎಷಷಷನಷ ಹಣವನನನ ಪಡರದನಕರರನಡದರದ ಎನಬನದನನನ ಈಗ ಹರರಳಲನಗನವವದಲಲ".
According to the above said statement of the complainant/PW.1 he works in a private company and he had borrowed/withdrawn Rs.20,000/- from his P.F. Account in the year 2009 and had borrowed 31 Crl.A.No.25057/2017 hand loan from his friends to lend Rs.2.00 lakhs to the Appellant/Accused. It is not the case of the Complainant/respondent that he had lent money to the Appellant/Accused on interest. Apart from the same, his statement shows that he did not have any fund readily available with him to lend Rs.2.00 lakhs to the Appellant/Accused. He states that he had himself borrowed hand loan and had withdrawn Rs.20,000/- in the previous year from his PF Account and he had lent all the said amount in total Rs.2,00,000/- to the Appellant/Accused. He further states that he has no difficulty to produce documents in that regard, but in reality he has not produced any documents to show that he had withdrawn Rs.20,000/- from PF account and had borrowed hand loan from his friends and arranged the amount. Added to it, when he was asked to divulge names of his friends from whom he had 32 Crl.A.No.25057/2017 borrowed money and details of the amount he had borrowed from each friends, he says he cannot state the same. Same clearly shows preponderance of probability that the Complainant/Respondent did not have financial capacity to lend Rs.2.00 lakhs to the Appellant/Accused.
18. Learned Trial Judge has considered the presumption available under section 139 of the Negotiable Instruments Act,1881, and Accused's evidence that there are 20 cheque bounce cases against him, and permissibility for the payee to fill up the blank cheque; and proceeded to hold that the Accused is guilty of the offence under section 138 of Negotiable Instruments Act,1881. Whether the complainant had financial capacity particularly in the light of what is elicited in his cross examination has not been considered by the Learned Trial Judge. So 33 Crl.A.No.25057/2017 also, other circumstances discussed above have not been taken into considered by the Learned Trial Judge. Over all circumstances show that the Complainant/ respondent did not even know the Appellant/ Accused and he is unable to state as to where he lent/handed over the loan amount of Rs.2.00 lakhs to the Appellant/Accused, and blows hot and cold about whether he had ever spoken to the Appellant/Accused; and at the same time, above all, his evidence shows that he did not have financial capacity. Further, the fact that several cheque bounce cases have been filed against the Appellant/Accused by itself is not a circumstance to form an opinion that the Appellant/ Accused had issued cheques in question to the complainant to discharge his legally enforceable debt. More so, when PW.1 admits that even his friend Anil Kumar has filed a cheque bounce case against the Accused 34 Crl.A.No.25057/2017 and further states in the complaint that the complainant was holding joint account with the said Anil Kumar and his further statement that it was Anil Kumar who had introduced Accused to him and it was Anil Kumar who gave address of the Accused to him et-all.
19. From the over all evidence there is probability of the complainant misusing the cheque of the Appellant/Accused which had probably been given to some one else in some other transaction. Of-course, I do not attach much significance to the defence of the Appellant/Accused that he had lost signed cheques and he had lodged complainant to the police in that connection and the said cheques have been misused in the case. Appellant/Accused has not produced any documents before the court to 35 Crl.A.No.25057/2017 show that he had lodged complaint to the police about the loss of the blank cheques.
20. Long and short of the matter is that the circumstances elicited in the cross examination of Complainant/PW.1 corroborates the preponderance of probability that the accused had not borrowed Rs.2.00 lakhs from the Complainant and he had not given said cheques to the complainant towards the discharge of any legally enforceable debt. In these circumstances, I am of view that the presumption under section 139 of the Negotiable Instruments Act,1881 has been successfully rebutted in the case. But, the Complainant/respondent has not produced further evidence to substantiate the claim that he had advanced loan of Rs.2.00 lakhs to the Appellant/ Accused and for the discharge of the same Appellant/Accused had issued two cheques for 36 Crl.A.No.25057/2017 Rs.1.00 lakh each which have been marked at Ex.P.1 respectively in both the cases. In view of the same, I am of opinion that the offence under section 138 of Negotiable Instruments Act,1881 has not been proved by the Complainant/respondent. Consequently, Point Nos.2 and 3 are answered in the negative.
21. Point No.4:- In view of findings on Point Nos.1 to 3, I am of opinion that the impugned judgment of conviction and order of sentence in C.C. No.51681/2013 and C.C.No.51683/2013 cannot be sustained. Consequently, Point No.4 is answered in the affirmative.
22. Point No.5:- For the foregoing reasons, I proceed to pass the following :-
37
Crl.A.No.25057/2017 O R D E R Criminal Appeal filed by the Appellant/Accused under Sec.374(3) of the Cr.P.C., is hereby allowed.
Judgment of conviction & order of sentence and award of compensation against Appellant dated.18.03.2017 passed in C.C.No.51681/2013 and C.C. No. 51683/2013 by the Learned LVIII Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru is hereby set aside.
Appellant/Accused is hereby acquitted of the offence u/s.138 of the Negotiable Instruments Act, 1881, in both cases.38
Crl.A.No.25057/2017 His Bail bonds and surety bonds are discharged.
Retransmit the LCR along with a certified copy of this judgment to the Lower court without delay, by not later than 15 days.
--
(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me on this the 5th day of March, 2021)
--
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil & Sessions Judge vk Mayo Hall, Bengaluru.39
Crl.A.No.25057/2017 (Judgment pronounced vide separate Judgment) O R D E R Criminal Appeal filed by the Appellant/ Accused under Sec.374(3) of the Cr.P.C., is hereby allowed.
Judgment of conviction & order of sentence and award of compensation against Appellant dated.18.03.2017 passed in C.C.No.51681/2013 and C.C. No. 51683/2013 by the Learned LVIII Additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru is hereby set aside.
Appellant/Accused is hereby acquitted of the offence u/s.138 of the Negotiable Instruments Act, 1881, in both cases.
His Bail bonds and surety bonds are discharged.
Retransmit the LCR along with a certified copy of this judgment to the Lower court without delay, by not later than 15 days.
(D.S.VIJAYA KUMAR) XXVI Addl.CC & SJ, Mayo Hall Unit Bengaluru.40
Crl.A.No.25057/2017 ನನನನ 2010 ರಲಲ ಆರರರರಪಯನನನ ನರರರಡದನದ ನನತರ ಪರಚಯ ಆಯತನ. ಯನವ ತನಗಳಲಲ ಆರರರರಪಯನನನ ನರರರಡದರದ ಎನಬನದನನನ ನನಗರ ಈ ಹರರಳಲನಗನವವದಲಲ. ಆರರರರಪಯ ಪರಚಯವವ ನನಗರ ನನನ ಸರನರಹತನನದ ಅನಲಲ ಕನಮನರಲ ಎನನನವವರ ಮರಲಕ ಆಯತನ. ಆರರರರಪಯನ ಸಕನರರ ಶನಲರಯ ಶಕಕಕರನ ಎನದರರ ನನಗರ ಗರರತತಲಲ. ಆರರರರಪಗರ ಹನಗರ ಅನಲಲ ಕನಮನರಲ ರವರಗರ ಪರಚಯ ಹರರಗನಯತನ ಎನಬನದನ ನನಗರ ನದರಷಷವನಗ ಗರರತತಲಲ . ನನಗರ ಮತನತ ಆರರರರಪಗರ ಯನವತರತ ಸಹನ ನರರರವನಗ ಮನತನಕತರ ಆಗರಲಲಲ ಎನದರರ ಸರ . ಸನಕಕ ಪವನನ ಹರರಳನತನತರರ ನನಗರ ಮತನತ ಆರರರರಪಗರ ಫರಫನನನನನನ ವಚನರವನಗ ಮನತನಕತರ ಆಗತನತ ಎನದನ 2010 ರಲಲ ಆರರರರಪಗರ ಕತತಗನಪರಪ ಸನಗಮರಶಶರ ಪನತಥಮಕ ಶನಲರಯಲಲ ಸಕನರರ ಶಕಕಕರನಗ ಕರಲಸ ಮನಡನತತದದರನ ಎನದರರ ಇರಬಹನದನ. ಅವರನ ಕತತಗನಪರಪಯಲಲಯರ ವನಸವನಗದದರನ ಎನದರರ ನನಗರ ಗರರತತಲಲ . ದರರನಲಲ ಕನಣಸದ ಆರರರರಪಯ ವಳನಸ ನನಗರ ಗರರತತರಲಲಲ ಎನದರರ ಸನಕಕ ಹರರಳನತನತರರ ನನನನ ನನನ ಸರನರಹತರನದ ಅನಲಲ ಕನಮನರಲ ರವರನದ ಸದರ ವಳನಸವನನನ ತಳದನಕರರನಡನ ಕನಣಸದರದರನರ ಎನದನ ಆರರರರಪಗರ ಯನವ ಸಸಳದಲಲ ಎರಡನ ಲಕಕ ರರಪನಯಯನನನ ಕರರಟಷದರದ ಎನಬನದನನನ ಎನಬನದನನನ ನನಗರ ನದರಷಷವನಗ ಹರರಳಲನಗನವವದಲಲ. ಆರರರರಪಯನ ನನನನ ಅವರಗರ ಹಣ ಕರರಟಷ ಸಮಯದಲಲಯರ ತಲನ ಒನದನ ಲಕಕದ ಎರಡನ ಚರಕನಕಗಳನನನ ಕರರಟಷದದರನ. ಸದರ ಎರಡನ ಚರಕನಕಗಳನನನ ಆರರರರಪಯನ ಭದತತರಗನಗ ಕರರಟಷದದರನ. ನನನನ 41 Crl.A.No.25057/2017 ಹನಜರನಪಡಸದ ಎರಡನ ಚರಕನಕಗಳಲಲ ದನನನಕ, ಹರಸರನ ಮತನತ ಮತತವನನನ ನನನರರ ಬರರದರನತರತರನರ ಎನದರರ ಸರ .
7. ನನನನ ಆರರರರಪಗರ ಎರಡನ ಲಕಕ ರರಪನಯ ಸನಲವನಗ ಕರರಟಷದರದ .
ನನನನ ಎರಡನ ಲಕಕ ರರಪನಯಯನನನ ಪಎಫಲ ಮತತದನದ, ಸರನರಹತರನದ ಕರಫಸನಲ ಮನಡ ಹನಗರ ಮನರಯನದ ಸಶಲಪ ಹಣವನನನ ಪಡರದನ ಆರರರರಪಗರ ಕರರಟಷದರದ. Tycod ಕನಪನಯಲಲ ನನನನ ಕರಲಸ ಮನಡನತತದನದ ಅಲಲನದ ಸನಮನರನ 20,000 ರರಪನಯ ಪಎಫಲ ಹಣ ಪಡರದನಕರರನಡದರದ . ಸದರ ಹಣವನನನ 2009 ರಲಲ ತರಗರದನಕರರನಡದರದ . ಆ ಕನರತನ ದನಖಲನತಯನನನ ಹನಜರನಪಡಸಲನ ಯನವವದರರ ತರರನದರರ ಇಲಲ. ನನಗರ ನದರಷಷವನಗ ಯನವ ಸರನರಹತರನದ ಎಷಷಷನಷ ಹಣವನನನ ಪಡರದನಕರರನಡದರದ ಎನಬನದನನನ ಈಗ ಹರರಳಲನಗನವವದಲಲ.