Bangalore District Court
B.Channamallikarjuna vs Sri.Mahalingappa on 20 February, 2023
1
C.C.No.10299/2019
KABC030324482019
Presented on : 06-05-2019
Registered on : 06-05-2019
Decided on : 20-02-2023
Duration : 3 years, 9 months, 14 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 20th day of February 2023
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.No
: C.C.No.10299/2019
Complainant : B.Channamallikarjuna
S/o B.C.Basavarajaiah
Aged about 51 years
R/at No.481, First - I Cross,
4th main, II Phase, 6th Block,
Banashankari III Stage,
Bengaluru -560 085
also for and on behalf of his son
Shashanka.C
Aged about 13 years
as father and natural guardian.
(By Sri. S.R.Suresh., Adv,)
V/s
Accused : Sri.Mahalingappa
R/at No.172, 7th Cross,
Bapujinagara Layout,
2
C.C.No.10299/2019
Near Chandra Layout,
Near Vijayanagar,
Bengaluru-560040.
(By Sri.J.M.Ravi Kumar., Adv.,)
Case instituted : 02.05.2019
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Acquitted
Date of order : 20.02.2023
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the Complainant is as under:-
The complainant is working as an agent in the Life Insurance of Corporation of India, Bengaluru. The accused is working as a Development Officer in the Life Insurance Corporation of India. The complainant and the accused are close friends since 28 years and they are in cordial relationship. The accused used to take money from the past 12 years from the complainant and used to return the money promptly within short period and created a confidence and trust over the complainant.3
C.C.No.10299/2019
3. It is averred in the complaint that the accused was visiting the house of complainant regularly in the morning times and used to go for business canvass. The accused was wanted a home loan with ICICI Bank in the year 2015 for which, he had taken an assistance of the complainant. The complainant has helped the accused to get the home loan of Rs.70,45,000/- under mortgage and normal home loan in the year 2015 on equal monthly installments at the rate of Rs.1,60,000/- per month.
4. It is further averred in the complaint that the complainant has paid a hand loan to the accused from his savings account of Corporation Bank, Overdraft loan and fixed deposit loan etc on different dates through RTGS, NEFT and by way of cash from his joint account maintained in NKGBS bank with his minor son Shashanka.C. The accused has encashed an amount of Rs.76 lakhs. The accused has issued 14 cheques bearing No.000564 dated 21.03.2019 for Rs.13 lakhs drawn on HDFC Bank, cheque bearing No.000401 dated 21.3.2019 for Rs.10 lakhs drawn on HDFC Bank, cheque bearing No.586641 dated 22.3.2019 for Rs.10 lakhs drawn on ICICI Bank, cheque bearing No.000389 dated 22.3.2019 for Rs.10 lakhs drawn on HDFC Bank, cheque bearing No.000308 dated 22.3.2019 for Rs.5 4 C.C.No.10299/2019 lakhs drawn on HDFC Bank, cheque bearing No.000309 dated 22.3.2019 for Rs.5 lakhs drawn on HDFC Bank, cheque bearing No.639121 dated 22.3.2019 for Rs.3 lakhs drawn on ICICI, cheque bearing No.000189 dated 22.3.2019 for Rs.4,50,000/- drawn on HDFC Bank, cheque bearing No.504015 dated 22.3.2019 for Rs.5 lakhs drawn on ICICI Bank, cheque bearing No.426134 dated 22.3.2019 for Rs.2 lakhs drawn on Comptroller's office Co-operative Bank, cheque bearing No.426135 dated 22.3.2019 for Rs.3 lakhs drawn on Comptroller's office Co-operative Bank, cheque bearing No.000003 dated 27.3.2019 for Rs.2 lakhs drawn on HDFC Bank, cheque bearing No.000004 dated 27.3.2019 for Rs.1 lakh drawn on HDFC Bank and cheque bearing No.000005 dated 27.3.2019 for Rs.1 lakh drawn on HDFC Bank in favour of the complainant towards repayment of loan of Rs.74,50,000/-.
5. It is further averred in the complaint that the complainant has presented the 14 cheques dated 21.3.2019, 22.3.2019 and 27.3.2019 respectively for encashment before NKGSB Co-Operative Bank Ltd., Banashankari III Stage, Bengaluru. But the said cheques were dishonoured for want of sufficient funds in 5 C.C.No.10299/2019 the account of the accused vide bank endorsements dated 22.3.2019, 25.3.2019 and 30.3.2019 respectively. Therefore, the complainant got issued a legal notice dated 9.4.2019 calling upon the accused to pay the cheques amount of Rs.74,50,000/- within 15 days from the date of service of legal notice. The accused has received the legal notice on 11.4.2019. But in spite of service of legal notice, the accused has failed to pay the cheques amount within 15 days from the date of receipt of legal notice and issued the reply notice and thereby committed an offence punishable U/s.138 of NI Act. Hence, this complaint.
6. After presentation of complaint, it was ordered to be registered as PCR No.5711/2019 vide order dated 3.5.2019.
7. The sworn statement of the complainant has been recorded and the documents were got marked as per Ex.P.1 to P.42.
8. My Learned Predecessor in office having heard the arguments of learned counsel for complainant and having satisfied with the complaint averments, sworn statement of complainant and documents at Ex.P.1 to P.42 and having satisfied with the prima facie materials placed on record has taken the cognizance for the 6 C.C.No.10299/2019 offence punishable U/s.138 of N.I.Act and the case was order to be registered as CC.No.10299/2019 and the process was ordered to be issued against the accused vide order dated 3.5.2019.
9. On service of summons, the accused has appeared before the court through his learned counsel and obtained the bail by depositing cash surety of Rs.76,000/- vide Q.No.5210/2019 dt:8.7.2019. The copies of all the prosecution papers were supplied to the accused.
10. The Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded and the substance of accusation has been read over and explained to the accused in the language known to him vide dated 7.8.2019. The accused has pleaded not guilty, but claims to be tried.
11. In order to establish the guilt against the accused, the complainant got himself examined as PW-1 and got the documents marked as Ex.P.1 to P.46. PW.1 was subjected for cross examination at length by the learned counsel for the accused. During the course of cross examination of PW.1, the statement of HDFC Bank, relavent entries therein, Certified Copies of the complaint and statements were confronted and they are 7 C.C.No.10299/2019 admitted by PW.1 and hence, they are marked at Ex.D1 to D3 and D1(a) to D1(k).
12. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been recorded vide dated 27.12.2019 and the incriminating evidence as such forthcoming against the accused in the evidence of complainant and documents has been read over and explained to the accused in the language known to him. But the accused has denied the entire evidence of complainant and documents and he submits that the complainant was known to him for about 10-15 years and on service of legal notice, he has replied the notice and the complainant has obtained the blank signed on demand pronote and different cheques for security purpose and he has already repaid the loan of Rs.76 lakhs through RTGS, NEFT from 2013 to 2018 through his account and the joint account of his son and his brother with interest at the rate of 5% per annum. However, the accused did not choose to enter the defence evidence.
13. I have heard the arguments of learned counsel for both the side on merits in full at length. The learned counsel for complainant has also filed detailed notes of 8 C.C.No.10299/2019 artuments along with memo with citations. The learned counsel for the accused also filed memo with citations.
14. In the light of the arguments canvassed by the learned counsel for both the side, I have carefully perused the oral and documentary evidence placed on record and also gone through the principles laid down in the cited decisions on behalf of both the parties.
15. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued 14 cheques bearing No.000564 dated 21.03.2019 for Rs.13 lakhs drawn on HDFC Bank, cheque bearing No.000401 dated 21.3.2019 for Rs.10 lakhs drawn on HDFC Bank, cheque bearing No.586641 dated 22.3.2019 for Rs.10 lakhs drawn on ICICI Bank, cheque bearing No.000389 dated 22.3.2019 for Rs.10 lakhs drawn on HDFC Bank, cheque bearing No.000308 dated 22.3.2019 for Rs.5 lakhs drawn on HDFC Bank, cheque bearing No.000309 dated 22.3.2019 for Rs.5 lakhs drawn on HDFC Bank, cheque bearing No.639121 dated 22.3.2019 for Rs.3 lakhs drawn on ICICI, cheque bearing No.000189 dated 22.3.2019 for Rs.4,50,000/- drawn on HDFC Bank, cheque bearing No.504015 dated 22.3.2019 for Rs.5 lakhs drawn on ICICI Bank, 9 C.C.No.10299/2019 cheque bearing No.426134 dated 22.3.2019 for Rs.2 lakhs drawn on Comptroller's office Co-
operative Bank, cheque bearing No.426135 dated 22.3.2019 for Rs.3 lakhs drawn on Comptroller's office Co-operative Bank, cheque bearing No.000003 dated 27.3.2019 for Rs.2 lakhs drawn on HDFC Bank, cheque bearing No.000004 dated 27.3.2019 for Rs.1 lakh drawn on HDFC Bank and cheque bearing No.000005 dated 27.3.2019 for Rs.1 lakh drawn on HDFC Bank in his favour towards legally recoverable debt of Rs.74,50,000/- and on presentation of cheques for encashment before NKGSB Co- operative Bank Ltd, Banashankari III Stage, Bengaluru, they were dishonorued for want of sufficient funds in the account of the accused vide bank endorsements dt:22.3.2019, 25.3.2019, 26.3.2019 and 30.03.2019 respectively and in spite of issuance of legal notice dt: 9.4.2019 and in spite of service of legal notice, the accused has failed to pay the cheques amount within 15 days from the date of service of legal notice and thereby committed an offence punishable U/s.138 of N.I.Act?
2. What Order?
16. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under :
[ Point No.1: In the Negative.
Point No.2: As per final order for the following :-10
C.C.No.10299/2019 REASONS
17. Point No.1 : The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law, 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 inpart, 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 proviosn of this Act, be punished with imprisonment for 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.
18. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, 11 C.C.No.10299/2019 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, 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.
[ 19. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.
20. Now keeping the above said provisions of Section 138 and 139 of N.I.Act in mind, let us consider as to whether the complainant could able to comply all the madates, ingredients, terms and conditions of Section 138 of N.I.Act, so as to draw the presumption in his favour as per Section 139 of N.I.Act.
12C.C.No.10299/2019
21. It is averred in the complaint and stated by PW.1 in his oral evidence that he is working as an agent in Life Insurance Corporation of India and the accused is also working as a Development Officer in the same LIC Office and they are close friends since 28 years and the accused used to take money from past 12 years and was returning the money and created confidence and trust over him and the accused was visiting his house regularly in the morning times and used to go for business canvass and the accused wants to take home loan with ICICI Bank in the year 2015 for which, he has helped the accused to get a home loan of Rs.70,45,000/- under mortgage and normal home loan in the year 2015 on an equal monthly installments at the rate of Rs.1,60,000/- per month.
22. It is further averred in the complaint and stated by PW.1 in his oral evidence that he has paid a hand loan to the accused from his savings account of Corporation Bank, Overdraft loan and Fixed Deposit loan on different dates through RTGS, NEFT and by cash from his joint account maintained with NKGBS bank with his minor son Shashanka.C and the accused has encashed the amount of Rs.76 lakhs and towards the repayment of hand loan of Rs.76 lakhs and issued 14 cheques in his favour towards repayment of debt of 13 C.C.No.10299/2019 Rs.74,50,000/- and on presentation of cheques for encashment before NKGBS Co-operative Bank Ltd., Banashankari III Stage, Bengaluru, the said cheques were dishonoured for want of sufficient funds in the account of the accused vide bank endorsements dated 22.3.2019, 25.3.2019, 26.3.2019 and 30.3.2019 respectively and therefore, he got issued a legal notice dated 7.4.2019 calling upon the accused to pay the cheques amount of Rs.74,50,000/- within 15 days from the date of service of legal notice and the notice was served on the accused on 11.4.2019, but the accused has failed to pay the cheques amount and issued a reply notice and therefore, he has presented the complaint before the court on 2.5.2019.
23. The complainant has produced 14 cheques, 14 bank endorsements, legal notice dated 9.4.2019, postal receipts dated 9.4.2019, postal acknowledgement dated 11.4.2019, reply notice, income tax returns, ICICI bank statement, NKGBS bank statement, Corporation bank statement, Karnataka Bank statement, income tax returns for the year 2019-2020, certified copies of complaint in CC.No.6129/2021, CC.No.8782/2019, CC No.8783/2021 and they are marked at Ex.P1 to P46.
14C.C.No.10299/2019
24. The accused neither disputed the loan transaction with complainant nor issuance of cheques in favour of the complainant for security purpose or presentation of cheques for encashment or dishonour of cheques for want of sufficient funds in his account or issuance of bank endorsements by the concerned banks in favour of the complainant or issuance of legal notice or service of legal notice or issuance of reply notice. In fact, there is no material suggestions to PW.1 either to deny the loan trransaction or the issuance of cheques or presentation of cheques for encashment or dishonour of cheques for want of sufficient funds in the account of the accused or issuance of legal notice or service of legal notice or issuance of reply notice.
25. On the other hand, it is suggested to PW.1 that whatever the amount availed by the accused from the complainant on different dates has already been repaid with interest at the rate of 5% per annum through RTGS and NEFT and the cheques were issued in favour of the complainant towards security purpose of the loan.
26. Be that as it may, during the course of his statement U/Sec.313 of Cr.P.C., the accused has stated that the complainant was known to him since 10-15 15 C.C.No.10299/2019 years and he has already repaid the entire loan of Rs.76 lakhs with interest at the rate of 5% per annum through RTGS and NEFT through his account and the account of his son and brother and also issued cheques in question to the complainant for the security purpose of laon and even after repayment of laon, the complainant has failed to return the cheques and on service of legal notice, he has replied the notice. Under these circumstances, admission is the best proof for the complainant to comply the mandates of Sec.138 of NI Act.
27. However, on careful perusal of complaint averments, oral evidence of PW.1 and the documentary evidence at Ex.P1 to P46 including the material suggestions put to PW.1 during the course of his cross examination, it clearly establishes that the complainant has been working as an agent in Life Insurance Coporation of India and the accused is also working as Development Officer in the same Life Insurance Corporation of India and they were known to each other since long time and the accsed was used to take loan from the complainant since long time and used to repay the loan.
28. The materials placed on record, clearly establishes that the cheques vide Ex.P1 to P14 are 16 C.C.No.10299/2019 belongs to accused and he has drawn the said cheques on an account maintained by him with his bankers namely HDFC Bank, ICICI Bank and the Comptoller's Office Co-operative Bank and the signatures on the cheques are as that of the signature of the accused. The materials placed on record would clearly establishes that the accused has issued the cheques vide Ex.P1 to P14 to the complainant and on presentation of cheques for encashment, all the cheques were dishonoured for want of sufficent funds in the account of the accused vide bank endorsements at Ex.P15 to P28 vide dated 22.3.2019, 25.3.2019, 26.3.2019, 27.3.2019 and 30.3.2019 respectively.
29. The materials placed on record further establishes that the complainant got issued a legal notice vide Ex.P29 dated 9.4.2019 calling upon the accused to pay the cheques amount within 15 days from the date of service of legal notice and the said notice has been duly served on the accused on 11.4.2019 as per Ex.P32 and P33 and in fact, the accused has issued a reply notice vide Ex.P34 dated 22.4.2019, but the accused has failed to pay the cheques amount and therefore, the complainant presented the complaint before the court on 2.4.2019.
17C.C.No.10299/2019
30. It is pertinent to note here that the cheques vide Ex.P1 to P14 are dated 21.3.2019, 22.3.2019 and 27.3.2019. As could be seen from the bank endorsements vide Ex.P15 to P28, the cheques were dishonoured for want of sufficient funds in the account of the accused vide dated 22.3.2019, 25.3.2019, 26.3.2019, 27.3.2019 and 30.3.2019 respectively. So, it is crystal clear that the complainant has presented the cheques for encashment before the bank within its validity and they were dishonoured for want of sufficient funds in the account of the accused.
31. As could be seen from the documents at Ex.P29 to P31, the complainant got issued a legal notice on 9.4.2019 giving 15 days time to the accused to comply the demands made in the notice and to pay the cheques amount. As could be seen from the documents at Ex.P32 and P33, the demand notice sent by the complainant has been duly served upon the accused on 11.4.2019. As could be seen from the document at Ex.P34, the accused instead of complying the demands made in the notice and pay cheques amount, has replied the notice vide Ex.P34 dated 22.4.2019. Therefore, the complainant has presented the complaint before the court on 2.5.2019 which was well within time. The accused neither disputed the issuance of cheques nor 18 C.C.No.10299/2019 signature on the cheques or presentation of cheques for encashment or dishonour of cheques for want of sufficient funds in his account or issuance of legal notice including its service and issuance of reply notice.
32. So, the complainant has complied the mandates of Sec.138 of NI Act by adducing the oral evidence of PW.1 and by producing the documentary evidence at Ex.P1 to P46. Under these circumstances, when the complainant has complied the mandates of Sec.138 of NI Act, this court has no option but to raise the presumptions available in favour of the complainant under the provisions of Sec. 139 of NI Act.
33. Admittedly, the presumptions available in favour of the complainant under the provisions of Sec. 139 of NI Act is not conclusive proof, but it is rebuttable in nature. Therefore, when once the complainant has complied the mandates of Sec.138 of NI Act and when once the court has drawn the presumptions in favour of the complainant under the provisions of Sec. 139 of NI Act, then the onus shifts on the accused to raise a probable defence and prove the same before the court and to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec. 139 of NI Act.
19C.C.No.10299/2019
34. Now, let us consider as to whether the accused could able to raise a probable defence and could able to substantiate the same before the court and could able to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec. 139 of NI Act.
35. The learned counsel for the complainant has argued with force that the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P46 clearly establishes that the complainant has paid a hand loan of Rs.76 lakhs from his savings account of Corporation Bank, Overdraft loan and fixed deposit loan on different dates through RTGS, NEFT and by way of cash from his joint account maintained with NKGBS Co-opeative bank with his minor son Shashanka.C and the accused has encashed the same and the accused has issued cheques vide Ex.P1 to P14 in favour of the complainant for legally recoverable debt of Rs.74,50,000/-.
36. It is further contended that on presentation of cheques for encashment within its validity, all the cheques were dishonoured for want of sufficient funds in the account of the accused vide bank endorsements dated Ex.P15 to P28 and therefore, the complainant got issued a legal notice vide Ex.P29 giving 15 days time to 20 C.C.No.10299/2019 the accused to comply the demands made in the notice, but in spite of service of legal notice as per Ex.P32 and P33, the accused has failed to pay the cheques amount within 15 days from the date of receipt of legal notice, but he has given an evasive reply as per Ex.P34 and therefore, the complainant has presented the complaint before th court on 2.5.2019 which was well within time.
37. It is further contended that the accused neither disputed the loan transaction nor issuance of cheques in question vide Ex.P1 to P14 or his singnature on the cheques as per Ex.P1(a) to P14(a) or presentation of cheques for encashment within its validity or dishonour of cheques for want of sufficient funds in his account as per Ex.P15 to P28 or issuance of legal notice vide Ex.P29 or service of notice as per Ex.P32 and P33 and therefore, the presumption is always available in favour of the complainant as per Sec. 139 of NI Act.
38. It is further contended that the accused has taken a defence that the amount of Rs.76 lakhs borrowed by him from the complainant has already been repaid by him to the complainant on different dates commencing from 2013 to 2019 and the complainant has not shown the same either in the notice or in the complaint or in the affidavit or in the income tax 21 C.C.No.10299/2019 returns. But, though the accused has taken the said contention, same has not been proved before the court in any manner. The accused neither entered into the witness box to depose evidence nor adduced the evidence of any independent witnesses before the court and thereby failed to substantiate his defence and failed to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec. 139 of NI Act. Nothing has been elicited in the evidence of PW.1 to show that the accused has already repaid the entire loan with interest and the complainant has misued the cheques and concocted and created the documents before the court. Therefore, the defence of the accused is sustainable under law.
39. It is further contended that though PW.1 has admitted during the course of his cross examination with respect to payment of amount by the accused on different dates and though the said entries are mentioned in the bank statements at Ex.P38 to P41 including documents at Ex.D1 and D1(a) to D1(k), but the said payments made by the accused in favour of the complainant and the entries made in the said documents are not relates to the present loan transaction of Rs.76 lakhs between the complainant and accused, but the said entries are relates to the other 22 C.C.No.10299/2019 earlier loan transaction between the complainant and accused and therefore, queston of showing the said facts either in the notice or in the complaint or in the affidavit does not arise and the accused cannot take the disadvantage of the same and the accused has not placed any materials to show that he has alredy repaid enire loan of Rs.76 lakhs obtained from the complainant and thereby the accused has failed to rebut the statutory presumptions and hence, the accused is liable for conviction U/Sec.138 of NI Act.
40. In support of his submission, the learned counsel for the complainant has relied upon a decision reported in (2015) 8 SCC 378 in between T.Vasantha Kumar V/s Vijaya Kumari, wherein while dealing with the provision of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that there is a presumption U/Sec.139 of NI Act that the holder of the cheque received it for discharge of debt or other liability, hence, the burden is on the accused to rebut it.
41. The learned counsel for the complainant has also relied upon a decision reported in ILR 2001 KAR 4127 in between S.R.Muralidar V/s Ashok G.Y., wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble High Court of Karnataka has pleased 23 C.C.No.10299/2019 to held that when there is no positive version of defence and the accused has not examined himself and from plea taken up by picking out of context the statements made in the cross examination and from the statements made in reply of the accused and when a hazy defence thereby sought to be built up, then the accused is liable for conviction.
42. The learned counsel for the complainant has also relied upon a decision rendered by the Hon'ble High Court of Karnataka in CRL.R.P.No.1482/2010 in between Mr.K.L.Agarwal V/s M/s Paramount Solutions dated 7.2.2017, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble High Court of Karntaka has pleased to held that when the accused has admitted the issuance of cheques and his signature drawn on, then the presumptions available in favour of the complainant U/Sec.139 of NI Act and it is for the accused to rebut the presumptions.
43. The learned counsel for the complainant has also relied upon a decision reported in AIR 2001 SC 3897 in between Hiten.P Dalal V/s Bratindranath Banerjee, wherein while dealing with the provisions of 138 of NI Act, the Hon'ble Supreme Court has pleased to held that there is a presumption that cheque was drawn 24 C.C.No.10299/2019 for discharge of liability of drawer and the presumption of law ought to be raised by court in very case, it is for the accused to rebut the same and mere plausible explanation is not sufficient, but proof of explanation is necessary.
44. The learned counsel for the complainant has also relied upon a decision rendered by the Hon'ble Supreme Court in Crl.A.Nos.1233-1235 of 2022 in between P.Rasiya V/s Abdl Nazer and another, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that when once the initial burden is discharged by the complainant that the cheque was issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. On the same principles, the learned counsel for the complainant has also relied upon a decision reported in AIR 2021 SC 606 in between Sripathi Singh V/s State of Jarkhand.
45. Per contra, the learned counsel for the accused has vehemently contended that the oral evidence of PW.1 and the documentary evidence at 25 C.C.No.10299/2019 Ex.P1 to P46 do not establish that the accused has issued the cheques vide Ex.P1 to P14 towards legally recoverable debt of Rs.76 lakhs and the oral and documentary evidence placed on record do not establish the existence of legally recoverable debt of Rs.76 lakhs as on the date of issuance of the cheques in question vide Ex.P1 to P14.
46. It is further contended that the contents of notice, contents of complaint including affidavit in chief examination of PW.1 do not indicate or establish the exact date on which the accused has approached the complainant for loan of Rs.76 lakhs and the exact date on which the complainant has paid loan of Rs.76 lakhs to the accused on different dates and also on different occassions. The notice, complaint and affidavit in chief examination of PW.1 are very much vague in nature and not specific with respect to date of approach of accused for loan and date of lending of loan.
47. It is further contended that whatever the amount paid by the complainant to the accused on different dates already been paid by the accused to the complainant on different dates with interest. The documents produced by the complainant at Ex.P38 to P40 itself clearly proves the repayment of entire loan 26 C.C.No.10299/2019 with interest by the accused to the complainant, but the complainant has not shown the same either in the notice or in the complaint or in the affidavait in chief examination.
48. It is further contended that though the complainant has not shown about the repayment of loan by the accused in the notice, complaint and affidavit in chief examination, but when the documents at Ex.D1 to D3 including Ex.D1(a) to D1(k) confronted to PW.1 during the course of his cross examination, he has admitted about the repayment of loan made by the accused to the complainant on different dates and on different occassions by way of cash, cheque, RTGS and NEFT and therefore, the said documents are marked at Ex.D1 to D3 and Ex.D1(a) to D1(k).
49. It is further contended that PW.1 has admitted in his evidence that he himself filled all the contents of the cheques and it was not filled by the accused and therefore, it clearly establishes that the complainant has obtained all the cheques vide Ex.P1 to P14 for security purpose towards earlier transaction and not issued for the present transaction and therefore, it cannot be said that the accused issued the cheques in question towards legally recoverable debt of Rs.76 lakhs.
27C.C.No.10299/2019
50. It is further contended that the complainant has also admitted in his cross examination about the difference of ink with respect to signature and the contents of cheques in question and therefore, they were issued for security purpose in respect of earlier loan transaction between the complainant and accused, but in spite of repayment of loan by the accused, the complainant has failed to return back the cheques and misused the same by filling the cheques and also by filing the false complaint.
51. It is further contended that in order to rebut the statutory presumptions U/Sec. 139 of NI Act, the accused need not enter into witness box or need not produce any documents, but the accused can definately make use of the materails produced by the complainant and accordingly, the accused has raised a probable defence and proved the same before the court by eliciting the materail facts in the cross examination of PW.1 and also by confronting the material documents to PW.1 which has been clearly admitted by PW.1 and they are marked at Ex.D1 to D3 and D1(a) to D1(k) which clearly establishes the probable defence taken by the accused and thereby, the accused has rebutted the statutory presumptions available in favour of the complainant 28 C.C.No.10299/2019 under the provisions of Sec. 139 of NI Act and therefore, the accused is entitled to an order of acquittal.
52. In support of his submission, the learned counsel for the accused has relied upon a decision reported in AIR 2022 SC 4961 in between Dashrathbhai Trikambhai Patel V/s Hitesh Mahendrabhai Patel and another, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that when the borrower agrees to repay the loan within a specified timeline and issues a cheque for security but defaults in repaying the loan within the time line, the cheque matures for presentation. However, the cardinal rule when a cheque is issued for security is that between the date on which the cheque matures, the loan could be repaid through any other mode within the due date or if the loan has been discharged before due date or if there is an altered situation, then the cheque shall not be presented for encashment.
53. The learned counsel for the accused has also relied upon a decision reported in AIR 2019 SC 1983 in between Basalingappa V/s Mudibasappa, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that the 29 C.C.No.10299/2019 non mentioning of date of issuance of cheque by the complainant in complaint as well as in his evidence and when the complainant not satisfactorily explaining contradiction in complaint vis-a-vis his examination in chief and cross examination, his failure to prove financial capacity to advance substantial amount to different persons including the accused, then the accused is entitled to an order of acquittal. On the same principles, the learned counsel for the accused has also relied upon a decision reported in AIR 2019 SC 942 in between Anss Rajashekar V/s Augustus Jeba Ananth.
54. The learned counsel for the accused has also relied upon a decision reported in (2014) 2 SCC 236 in between John.K Abraham V/s Simon C. Abraham and another, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that in order to draw presumptions U/Sec.118 and 139 of NI Act, burden lies on the 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 30 C.C.No.10299/2019 had been agreed while issuaing cheque in favour of complainant.
55. The learned counsel for the accused has also relied upon a decision reported in (1999) 3 SCC 35 in between Bharat Barrel and Drum Manufacturing Company V/s Amin Chand Payrelal, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'bel Supreme Court has pleased to held that the presumption that promissory note was for consideration is rebuttable. This can be done either by direct evidence or by preponderance of probabilities showing that existence of of consideration was improbable, dobutful or illegal.
56. The learned counsel for the accused has also relied upon a decision reproted in ILR 2008 KAR 4629 in between Shiva Murthy V/s Amruthraj, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble High Court of Karnatkaa has pleased to held that before considering the conduct of the accused to find out as to whether or not he has been able to rebut the statutory presumption available under section 139 of NI Act, the court has to consider as to whether the complainant has proved the existence of legally enforceable debt. It is only after satisfying that the 31 C.C.No.10299/2019 complainant has proved the existence of legally enforceable debt or liability, the court can proceed to draw presumption under section 139 of NI Act and thereafter, find out as to whether or not the accused has rebutted the said presumptions.
57. The learned counsel for the accused has also relied upon a decision reported in 2009 (2) Crimes 463 in between Joseph Sartho V/s Gopinathan Nair, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble High Court of Kerala has pleased to held that once part payment was received, cheque no longer was one for payment of money for discharge of any debt whole or in part. When the cheque amount longer than amount of debt or liability, if dishonoured, will not be an offence under section 138 of NI Act. On the same principles, the learned counsel for the accused has also relied upon a decision rendered by the Hon'ble High Court of Karnataka in Crl.A.No.1697/2006 in between Vishnudas V/s Mr.Vijaya Mahantesh.
58. Now keeping the arguemtns canvassed by the learned counsel for both the side and also the principles laid down in the above cited decisions on behalf of both the side in mind, let us consider as to whether the accused could able to rebut the statutory presumptions 32 C.C.No.10299/2019 available in favour of the complainant under the provisions of Sec. 139 of NI Act.
59. As could be seen from the plea of accused recorded on 7.8.2019, the accused has pleaded not guilty, but claims to be tried. As could be seen from the statement of accused U/Sec.313 of Cr.P.C. recorded on 27.12.2022 and statement of accused filed U/Sec.313(5) of Cr.P.C. dated 27.12.2022 and as could be seen from the material suggstions put to PW.1, the accused has taken a specific defence that he has already discharged the entire debt availed by him from the complainant in between 2013 to 2018 on different occassions by way of RTGS, NEFT and cheques and he has already replied the notice issued by the complainant and therefore, there was no existence of legally recoverable debt as on the date of issuance of cheques in question and therefore, he is not liable to pay any cheques amount.
60. The complainant all the while in his complaint and all the while in his affidavit in chief examination has stated that he has paid hand loan of Rs.76 lakhs to the accused from his savings acocunt of Corporation Bank, overdraft bank loan and fixed deposit loan on different dates and therefore, the accused has issued 14 cheques towards repayment of total loan of RS.74,50,000/-. But 33 C.C.No.10299/2019 as admitted by PW.1 in his cross examination that he has not disclosed as to the exact date on which the accused has approached him for loan of Rs.76 lakhs and the exact date on which he has paid hand loan of Rs.76 lakhs and the exact date on which the accused has issued the cheques in question. The notice, complaint and affidavit in chief examination are very much vague in nature and not specific as to the exact date on which the accused has approached the complainant for loan of Rs.76 lakhs to the accused and the exact date on which the accused has issued 14 cheques.
61. At one point of time, the complainant has stated that he has helped the accused to get home loan of Rs.70,45,000/- in the year 2015. At another point of time, the complainant has stated that he has paid a hand loan of Rs.76 lakhs to the accused from his savings account of Corporation Bank, Overdraft loan and fixed deposit on different dates through RTGS, NEFT and by way of cash from the joint account maintained in NKGBS Bank with his minor son Shashanka.C and the complainant has encashed the said loan of Rs.76 lakhs. But, at another point of time, the complainant has stated that the accused has issued 14 cheques for total loan of Rs.74,50,000/-. All these inconsistencies and glaring discrepancies found in 34 C.C.No.10299/2019 notice, complaint and affidavit in chief examination goes to the very root of the case made out by the complainant.
62. Be that as it may, the notice, complaint and affidavit in chief examination of PW.1 do not indicate or establish the repayment made by the accused to the complainant on different dates. However, during the course of his cross examination, PW.1 has categorically and unambiguiously has admitted that the accused has transferred an amount of Rs.3 lakhs on 13.7.2012 to his account by way of cheque; Rs.8 lakhs on 4.2.2014, Rs.6 lakhs on 5.3.2014, Rs.5 lakhs on 7.3.2014, Rs.5 lakhs on 6.9.2014, Rs.45,000/- on 7.10.2014 and Rs.45,000/- on 5.12.2014 and in the year 2014, an amount of Rs.17,35,000/- transferred to his account from the account of the accused.
63. It is also admitted by PW.1 that on 7.3.2015, an amount of Rs.65,000/- transferred from the account of the accused to his account, Rs.37,500/- on 9.5.2015, Rs.1 lakhs on 28.5.2015, Rs.3 lakh on 24.7.2015, Rs.80,000/- on 10.7.2015, Rs.70,000/- on 8.8.2015, Rs.70,000/- on 9.9.2015, Rs.90,000/- on 10.10.2015, Rs.90,000/- on 10.12.2015, Rs.10 lakhs on 22.12.2015, Rs.60,000/- on 23.12.2015 and Rs.10 lakhs on 35 C.C.No.10299/2019 12.2.2015 and total amount of Rs.29,62,500/- has been transffered to his account in the year 2015.
64. It is also admitted by PW.1 in his cross examination that an amount of Rs.60,000/- has been transferred from the account of accused to his account on 12.1.2016 and Rs.90,000/- on 1.9.2016 and Rs.29 lakhs has been transferred from the account of the accused to his account in the year 2017. It is also admitted by PW.1 that an amount of Rs.1,80,000/- has been transferred from the account of the accused to his account on 17.1.2017, Rs.90,000/- on 3.2.2017, Rs.90,000/- on 6.3.2017, Rs.90,000/- on 15.4.2017, Rs.90,000/- on 4.5.2017, Rs.1,20,000/- on 6.6.2017, Rs.1,50,000/- on 5.7.2017, Rs.1,50,000/- on 3.8.2017, Rs.1,50,000/- on 20.9.2017, Rs.50,000/- on 7.10.2017; Rs.4,50,000/- on 7.10.2017, Rs.1 lakh on 8.11.2017 and Rs.1,50,000/- on 4.12.2017.
65. It is also admitted by PW.1 that as per the statement of accounts of HDFC Bank shown to him, an amount of Rs.1,65,000/- has been transferred from the account of the accused to his account on 4.1.2018, Rs.1,65,000/- on 3.2.2018; Rs.1,65,000/- on 7.3.2018, Rs.90,000/- on 19.3.2018, Rs.1,78,000/- on 4.2.2018; Rs.1,78,000/- on 8.6.2018, Rs.50,000/- pm 14.6.2018;
36C.C.No.10299/2019 Rs.60,000/- on 9.5.2018, Rs.10,000/- on 6.7.2018, Rs.1,28,000/- on 17.8.2018 and Rs.1 lakh on 17.8.2018 and the said entries of statement of acounts belongs to HDFC Bank has been admitted by PW.1 and therefore, they are marked at Ex.D1 and D1(a) to D1(k). All these documents marked through the cross examination of PW.1 vide Ex.D1 and Ex.D1(a) to D1(k) falsify the case made out by the complainant and probablise the defence taken by the accused.
66. It is also admitted by PW.1 that an amount of Rs.65,000/- has been transfered from the account of the accused to his account on 7.3.2015, Rs.37,500/- on 9.5.2015, Rs.3 lakhs on 24.7.2015, Rs.80,000/- on 10.7.2015; Rs.70,000/- on 8.8.2015; Rs.1 lakh on 28.5.2015; Rs.90,000/- on 10.11.2015, Rs.90,000/- on 10.12.2015, Rs.10 lakhs on 22.12.2015, Rs.60,000/- on 23.12.2015 and Rs.10 lakhs on 24.12.2015.
67. It is also admitted by PW.1 that an amount of Rs.60,000/- has been transfered from the account of the accused to his account on 12.1.2016, Rs.90,000/- on 1.9.2020, Rs.1,80,000/- on 17.1.2017, Rs.90,000/- on 3.2.2017; Rs.90,000/- on 6.3.2017; Rs.90,000/- on 15.4.2017,Rs.90,000/- on 4.5.2017, Rs.1,20,000/- on 6.6.2017, Rs.1,50,000/- on 5.7.2017,Rs.1,50,000/- on 37 C.C.No.10299/2019 3.8.2017, Rs.1,50,000/- on 20.9.2017, Rs.50,000/- on 7.10.2017, Rs.1 lakh on 8.11.2017, Rs.4 lakhs on 7.10.2017 and Rs.1,50.000/- on 4.12.2017.
68. The entries made in the documents at Ex.D1 and D1(a) to D1(k) marked through the evidence of PW.1 and the documents at Ex.P38 to P41, Ex.P38(a) to P38(g), 39(a) to 39(c) and 40(a) to 40(o) clearly establishes that the accused has already paid the loan of Rs.76 lakhs availed by him from the complainant with interest. But the complainant has not disclosed the said facts of repayment of loan with interest either in his notice or in his complaint or in his affidavit in chief examination.
69. Even according to PW.1 that he do not know the exact date on which the accused has asked him to lend the loan and the exact dates on which he has paid an amount of Rs.76 lakhs to the accused on different dates and he do not know the exact quantum of loan paid by him to the accused in the year 2013. At one point of time, PW.1 has stated that he has paid an amount of Rs.76 lakhs to the accused on 14 dates. But at another point of time, PW.1 has stated that he has paid loan of Rs.76 lakhs to the accused from 2013 to 2018. At one point of time, PW.1 has stated that he has 38 C.C.No.10299/2019 not lend the loan to the accused for the purpose of interest. But another point of time, PW.1 has stated about the repayment made by the accused on different dates along with interest. At one point of time, PW.1 has stated that out of loan of Rs.76 lakhs, the accused not even paid any amount. At another point of time, PW.1 has categorically admitted about the repayment made by the accused commencing from 2013 to 2017-18 on different dates and therefore, those entries and documents are marked through the evidence of PW.1 which falsify the case made out by the complainant and probablise the defence taken by the accused.
70. It is the evidence of PW.1 that he has demanded the loan from the accused on 6.32017 and therefore, the accused has issued 14 cheques on 6.3.20189 which is highly contrary to the documents at Ex.P1 to P14. Because, the cheques vide Ex.P1to P14 are dated 21.3.2019, 22.32019 and 27.32019 respectively and not 6.3.2019. It is also admitted by PW.1 that in the year 2015, the accused has availed a housing loan from LIC for which, he has received commission amount of Rs.22,000/-. It is also admitted by PW.1 that he has not disclosed the repayment of loan made by the accused in his income tax returns for the 39 C.C.No.10299/2019 year 2012-13 and 2013-14 and he has not produced those income tax returns before the court.
71. It is pertinent to note here that at one point of time, PW.1 has stated that he has lend loan of Rs.17 lakhs in the year 2017. At another point of time, PW.1 has stated that he has lend the amount of Rs.35 lakhs to the accused in the year 2015. At another point of time, PW.1 has stated that he has lend the loan of Rs.76 lakhs to the accused on different dates. But the cheques vide Ex.P1 to P14 were alleged to be issued for amount of Rs.74,50,000/-. It is also admitted by PW.1 that he has not produced full bank statement for the year 2013 to 2017 and he has not disclosed about the repayment made by the accused from 2013 to 2018.
72. It is also pertinent to note here that PW.1 himself has stated that there are no documensts to show that the accused was due for Rs.76 lakhs as on 6.3.2019. This necessarily indicate that the cheque vide Ex.P1 to P14 were issued for security purpose only and not for existence of legally recoverable debt of Rs.76 lakhs. At one point of time, PW.1 has feigned his ignorance as to who have filled the cheques vide Ex.P1 to P3. At one point of time, PW.1 has stated that he has filled the cheques in question. At another point of time, 40 C.C.No.10299/2019 PW.1 has stated that the accused had filled the cheques. It is also admitted by PW.1 that the contents of cheques and signatures on the cheques are in different handwriting and in different ink colour. It is also admitted by PW.1 that the document at Ex.D2 is the complaint lodged by the accused against him on 6.3.2019 and Ex.D3 is the statement given by him before the police. All these documents at Ex.D1 to D3 including Ex.D1(a) to D1(k) falsify the case made out by the complainant and probablise the defence taken by the accused.
73. On appreciation of the entire oral and documentary evidence placed on record, it is found that the complainant was working as an agent in the Life Insurance Corporation of India and the accused was also working as a development officer in the Life Insurance Corporation of India and therefore, they were close friends since long time and got good acquitaince with each other. The evidence placed on record would also indicate that the accused used to avail loan from the complainant and used to repay the loan to the complainant and the accused was wanted to avail home loan with ICICIBank in the year 2015 and accordingly the complainant had helped the accused in getting home loan of Rs.70,45,000/- under mortgage and normal loan 41 C.C.No.10299/2019 in the year 2015 and the accused has already repaid the entire loan to the concerned bank.
74. The oral and documentary evidence placed on record would also indicate that the complainant had lend the loan of Rs.76 lakhs to the accused on different dates as mentioned in the documents at Ex.P38 to P41 and at that time, the complainant had obtained 14 cheques for security purpose in respect of said loan. But, as could be seen from the documents at Ex.P38 to 41 including documents at Ex.D1 to D3 and Ex.d1(a) to D1(k) as admitted by PW.1 and marked through the evidence of PW.1 that the accused had already repaid entire loan to the complainant with interest. But the complainant has failed to return the blank signed cheques which were obtained for security prupose in the year 2013 and thereafter, filled the same and filed the complaint against the accused.
75. A perusal of cheques vide Ex.P1 to P14 goes to show that the signatures and the contents of the cheques are in different handwriting and also in different ink colours. It is forthcoming in the evidence of PW.1 that he filled the cheques and presented for encashment before the bank. Under these circumstances, the defence taken by the accused that the blank signed cheques 42 C.C.No.10299/2019 were obtained by the complainant in the year 2013 and in spite of repayment of enitre loan with interest, the complainant has failed to return back the cheques and later on filled by him and filed the complaint is seems to be more probable than that of the case made out by the complainant.
76. It is pertinent to note here that from the oral and documentary evidence adduced and produced by the complainant before the court, it is not shown by the complainant as to how an amount of Rs.74,50,000/- was due as on 21.03.2019, 22.3.2019 and 27.3.2019, payable by the accused. As already stated above and as admitted by PW.1 in his cross examination that the notice, complaint and affidavit in chief examination of PW.1 do not indicate or establish as to the exact date on which the accused had approached the complainant for loan of Rs.76 lakhs and the exact date on which the complainant has paid loan of Rs.76 lakhs to the accused on different dates. But, the cheques are dated 21.3.2019, 22.32.2019 and 27.3.2019. As could be seen from the documents at Ex.P38 to P41 and documents at Ex.D1 to D3 and D19a) to D1(k), the accused has already repaid the loan to the complainant on different dates by way of cheques, RTGS and NEFT. The complainant has not placed any materials to show that 43 C.C.No.10299/2019 the loan repaid by the accused on different dates as per the documents at Ex.D1 and D1(a) to D1(k) and as per Ex.P38 to P41 pertains to some other loan and not to the present loan of Rs.76 lakhs. Therefore, the complainant required to establish before the court by producing relevant documents that the amount mentioned in the cheques was actually due as on the date of issuance of the cheques on 21.3.2019, 22.3.2019 and 27.3.2019 respectively. But the complainant has not placed any materials before the court as to how an amount of Rs.74,50,000/- as mentioned in the Ex.P1 to P14 due from the accused as on the date of issuance of cheques in question. Under these circumstances, it cannot be said that there was an existence of loan of Rs.74,50,000/- and the accused has issued the cheques vide Ex.P1 to P14 towards legally recoverable debt of Rs.74,50,000/-.
77. It is also pertinent to note here that the liability and the security are two distinct entities and both cannot be mixed or acted upon simultaneously. If the act of a person in discharge of liability is not done, then the security comes into picture. If the act of a person in discharge of a liability is performed, then the security would not have any legall force. The oral and documentary evidence placed on record would clearly 44 C.C.No.10299/2019 establishes that the loan amount availed by the accued already been repaid by the accused to the complainant on different dates as per the documents at Ex.P38 to 41 and Ex.D1 and D1(a) to D1(k) as admitted by PW.1 in his cross examination. Under these circumstances, when once the accused has repaid the loan with interest to the complainant, then the complainant ought to have return back the cheques to the accused which were obtained by him for security purpose for the loan transaction in the year 2013. But he has not done so. No explanation as such forthcoming in this regard. If at all the accused was due for any balance loan amount, then the complainant could have disclosed the exact balance loan either in his notice or in his complaint or in his affidavit chief examination. But he has not done so. No explanation as such forthcoming in this regard in the evidence of PW.1. In the absence of such an explanation, an adverse inference has to be drawn against the case made out by the complainant. Consequently, it cannot be said that there was an existence of legally recoverable debt of Rs.76 lakhs and the accused has issued the cheques in question to the complainant towards the alleged legally recoverable debt of Rs.76 lakhs.
78. Therefore, the arguments of the learned counsel for complainant that the complainant has 45 C.C.No.10299/2019 proved the guilt against the accused with oral evidence of P.W.1 and the documentary evidence at Ex.P1 to P46 which clearly establishes that the accused was due for loan of Rs.70,50,000/- as on the date of issuance of the cheques in question and towards the repayment of loan of Rs.74,50,000/-, the accused has issued the cheques vide Ex.P1 to P14 and the complainant has established the existence of loan of Rs.74,50,000/- and issuance of cheques in question towards the loan of Rs.74,50,000/-, but the accused has failed to raise a probable defence and also failed to prove the same before the court with legal evidence and the documents at Ex.D1 to D3 do not establish the repayment of loan amount and the accused has failed to rebut the statutory presumtpions available in favour of the complainant under the provisions of Sec.118 and 138 of NI Act and therefore, the accused is liable for conviction U/Sec.138 of NI Act is not sustainable under law and therefore, cannot be accepted and the decisions cited in this regard are also not appblicable to the present facts and circumstances of the case.
79. But, on the other hand, there is some legal and considerable force in the submission of the learned counsel for the accused that the notice, complaint and affidavit in chief examination of PW.1 do not establish 46 C.C.No.10299/2019 the exact date of loan and also do not establish that the accused was due for Rs.74,50,000/- and therefore, he has issued the cheques in question towards existence of legally recoverable debt of Rs.74,50,000/-, but on the other hand, the documents at Ex.D1 to D3 and Ex.D1(a) to D1(k) and material facts elicited in the cross- examination of PW.1 clearly establishes that what ever amount availed by the accused has already been repaid to the complainant on different dates through RTGS, NEFT including cheques as mentioned in the documents at Ex.D1, D1(a) to D1(k) and documents at Ex.P38 to P41 and the accused need not enter into the witness box to rebut the statutory presumptions, but he can definately relay upon the materials produced by the complainant and accordingly, the accused has raised a probable defence and also proved the same before the court by eliciting the material facts in the evidence of PW.1 and also by producing the documents at Ex.D1 to D3 which has been admitted by the complainant during the course of his cross-examination and therefore, in view of the accused rebutted the presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act, the accused is entitled to an order of acquittal for the offence punishable U/Sec.138 of NI Act and the decisions cited in this regard are also 47 C.C.No.10299/2019 applicable to the present facts and circumstances of the case.
80. Therefore, for the reasons discussed above, this Court is of the considered view that materials placed on record do not establish the guilt against the accused for the offence punishable U/Sec.138 of N.I.Act. Hence, I hold that the complainant has failed to prove the guilt against the accused for the offence punishable U/s.138 of N.I.Act. Hence, I answer point No.1 in the Negative.
81. Point No.2: In view of my findings on point No.1, I proceed to pass the following:-
O RDE R The accused is found not guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable U/sec.138 of N.I.Act.
The bail bonds of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
The cash surety of Rs.76,000/- deposited by the 48 C.C.No.10299/2019 accused vide Q.No.5210/2019 dated 8.7.2019 shall be refunded to the accused after the appeal period is over with due identification and on proper verification of documents. (Dictated to the stenographer, transcribed by her, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 20 th February 2023).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Mr.B.Channamallikarjuna
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 to 14 : Original Cheques
Ex.P.1(a) to : Signatures of the Accused
14(a)
Ex.P.15 to 28 : Bank Memos
Ex.P.29 : Copy of Legal Notice.
Ex.P.30 & 31 : Postal Receipts.
Ex.P.32 & 33 : Postal Acknowledgements
Ex.P.34 : Reply Notice
49
C.C.No.10299/2019
Ex.P.35 to 37 : I.T.R.
Ex.P.38 : ICICI Bank Statements
Ex.P.38(a) to : Relevant Entries
38(d)
Ex.P.38(e) to : Relevant Entries
38(g)
Ex.P.39 : NKGSB Bank Statements
Ex.P.39(a) to : Relevant Entries
39(c)
Ex.P.40 : Corporation Bank Statements
Ex.P.40(a) to : Relevant Entries
40(o)
Ex.P.41 : Karnataka Bank Statements
Ex.P.41(a) : Relevant Entries
Ex.P.42 : Complaint
Ex.P.43 : 2019-20 ITR
Ex.P.44 : Complaint in CC.No.6129/2021
Ex.P.45 : Complaint in CC.No.8782/2021
Ex.P.46 : Complaint in CC.No.8783/2021
3. List of witness/s examined on behalf of the Accused:-
: Nil
4. List of documents exhibited on behalf of the Accused:-50
C.C.No.10299/2019 Ex.D.1 : HDFC Bank Statement Ex.D.1(a) to : Relevant Entries D.1(k) Ex.D.2 : Complaint Ex.D.3 : Statement (N.M.RAMESHA) XVI ACMM, Bengaluru City.