Bangalore District Court
Pressurized The Accused To Repay The ... vs Through Rpad And Same Was Served. But The on 14 September, 2021
SCCH-2 1 C.C.319/2018
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL
CAUSES AND ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU (SCCH2)
C.C. NO: 319/2018
Present: Smt. Shainey K.M.
BAL.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACMM, Bengaluru.
Dated: On this 14th day of September, 2021.
JUDGMENT U/S 355 OF CR.P.C. 1973.
1. Sl.No. of the C.C.No.319/2018
Case :
2. The date of commission 10.01.2018
of the
offence :
3. Name of the complainant: Sri. Balamurali C.S.,
S/o Sri. C.V. Srinivasulu,
Aged about 38 years, No.45,
2nd Cross, Lakshminarayana
Swamy Temple Road,
Venkatappa Layout,
Amruthahalli, Bengaluru560
092.
SCCH-2 2 C.C.319/2018
(By Sri. J.M.U., Advocate)
4. Name of the Sri. K.N. Nagabhushana,
accused : S/o Nanjundappa,
Aged about 60 years,
No.26/A, 1st Cross,
'E' Block, Thirumalanagar,
Attur Layout, Yelahanka,
Bengaluru560 064.
(By Sri.S.N., Advocate)
5. The offence complained Under Section 138 of the
of or proves : Negotiable Instrument Act.
6. Plea of the accused
and his examination : Pleaded not guilty.
7. Final Accused is acquitted.
Order :
8. Date of such order
for the following : 14.09.2021.
JUDGMENT
This is private complaint filed against the accused for the offences punishable under section 138 read with section 142 of N.I Act (hereinafter referred to as 'the Act') . SCCH-2 3 C.C.319/2018 This case has been transferred from 19th ACMM court, Bangalore to this court as per notification no ADM 1 (A) 19/2017, Dtd: 20.11.2017. Cognizance of the offence was taken on presentation of the private complaint before the Hon'ble 19th ACMM, Bengaluru and ordered to register the criminal case, as there were prima facie materials to proceed against the Accused.
02. The brief facts of the complainant's case is as follows:
It is the contention of complainant that, his father Sri. C.V. Srinivasulu has introduced the accused to him. That on 01.12.2016, the accused requested the complainant to arrange Rs.10,00,000/ for the purpose of his daughter's marriage. The complainant has considered the request of accused and paid him Rs.10,00,000/ on 24.10.2016. The accused has agreed to repay the said amount within three months after sale of his agricultural property, situated at SCCH-2 4 C.C.319/2018 Gowribidanur Taluk, but he failed to repay the money as agreed upon by him. In the month of March 2017, when the complainant pressurized the accused to repay the money, he requested for another three month. Even after lapse of three months, the accused did not repay the money, but issued a cheque bearing No.227554, dated:01.08.2017 drawn on Corporation Bank, Jakkuru Branch, Bengaluru by promising to maintain sufficient amount in his account. The complainant has presented the said cheque through his bankers State Bank of India, Amruthahalli Branch, Bengaluru. The said cheque came to be dishonoured on 07.11.2017 for the reason "funds insufficient". That on 28.11.2017, the complainant has issued legal notice to the accused through RPAD and same was served. But the accused has given untenable reply instead of repaying the amount. Hence, this complainant.SCCH-2 5 C.C.319/2018
03. On being served the summons, the Accused appeared through his counsel and got released him on bail. Plea of the Accused has been recorded by explaining the substances of accusation. Accused pleaded not guilty and claims to be tried. The Accused filed application under Section 145 (2) of N.I Act, seeking permission to crossexamine Complainant and to proceed in accordance with Law. Accordingly, the application is allowed and the Accused is permitted to cross examine Complainant/PW1.
04. In support of his case, complainant got examined himself as PW1 and produced ten documents marked at Ex.P.1 to Ex.P.10. Sri. Rajesh G.s was examined as P.W.2 and he produced two documents at Ex.P.11 and Ex.P.12, respectively.
06. After closure of Complainant's evidence, the Accused was examined under Section 313 of Cr.P.C. by explaining the incriminating circumstances appearing in the evidence of the Complainant. The Accused has denied the prosecution version SCCH-2 6 C.C.319/2018 in toto. The Accused got examined him as DW1. Ex.D:1 to 8 marked in defence evidence.
05. Heard arguments of Complainant & Accused. The learned counsel for Accused has also relied upon the following citations in support of accused's defence.
1. 2007 AIR SCW 6736, John K. John Vs. Tom Verghese and Another.
2. 2009 SCC Online Kar. 190, Smt. H.R. Nagarathna Vs. Smt. Jayashree Prasad.
3. 2010 CRL. L.J. 3386, S. Thimmappa Vs. L.S. Prakash.
4. 2011 CRL.L.J.552,Amzad Pasha Vs. H.N. Lakshmana.
5. (2014) 12 Supreme Court Cases 625, Ramdas S/o Khelu Naik Vs. Krishnanand S/o Vishnu Naik.
6. (2015) Supreme Court Cases 99, K. Subramani Vs. K. Damodara Naidu.
7. LAWS (KAR) 2015 6 353, A.M. Govindegowda Vs. B.V. Ravi.
SCCH-2 7 C.C.319/2018
8. AIR 2019 SC 1983, Basalingappa Vs. Mudibasappa.
6. Now, following points arise for my consideration for disposal of case;
POINTS
1. Whether Complainant proves beyond all reasonable doubt that Accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
2. Whether accused has rebutted the presumption as contemplated u/sec 139 of N.I Act?
3. What order?
7. My answers to the above points are as follows:
Point no:1 : In the negative.
Point no:2: In the affirmative.
Point no.3: As per final order for the following:
:REASONS:
SCCH-2 8 C.C.319/2018
8. Point no:1 & 2: For sake of convenience and to
avoid repetition of facts, these points are taken up for common discussion as here under.
9. This is a private complaint filed against the accused for the offence punishable under sec 138 read with section 142 of NI Act. To prove his case, the complainant examined himself as Pw:1 and filed affidavit by way of examination in chief. Pw:1 has reiterated the averments of complainant in his evidence. In support of his evidence, Pw:1 has produced the cheque in question allegedly issued by accused at ExP:1. The cheque was returned by Corporation bank with an endorsement stating funds insufficient as per ExP2. Thereafter, the complainant issued legal notice to accused calling upon him to repay the loan amount of Rs 10 lakhs and said notice is marked as ExP:3. ExP:4 is the postal receipt and ExP5 is the registered postal acknowledgement in respect of said notice. ExP:6 is the reply notice dtd; SCCH-2 9 C.C.319/2018 30.12.2017. ExP:7 and 6 are the Gold Loan in respect of Ledger no: F5469 and F5553, respectively. ExP:9 is the statement of account of Pw:2 Rajesh. ExP:10 is the statement of account of Pw:1. Accused has cross examined the Pw:1 in detail.
10. It is the case of the complainant that on 24.10.2016, the accused has borrowed a sum of Rs 10 lakhs from the complainant and as he did not repay the above amount, in the month of March, 2017, he demanded for repayment of loan, again accused has taken 3 months of time to repay the amount and then, after 3 months he issued ExP:1 cheque to Pw:1 for repayment of loan. So it can be inferred that ExP:1 was issued in the month of June 2017.
11. The accused has seriously disputed the financial capacity of complainant to lend Rs 10 lakhs. The accused has issued cheque to complainant and it is not in dispute. ExP:1 (a) is the signature of the accused and it is not in SCCH-2 10 C.C.319/2018 dispute. The Financial transaction with complainant is admitted by the accused, but only quantum of the loan amount is disputed. It is the specific plea of accused that he received loan of Rs 5 lakhs from the complainant and his father and he also repaid the said amount through RTGS to Praksh, the complainant's brother as per the request of the complainant and to substantiate his contention he produced the statement of account at ExD:1. After repayment of the above loan, the complainant and his father have not returned the cheque ExP:1 and other cheque and filed one more criminal Case i.e., CC no: 235282017. So, the financial capacity of the complainant to lend amount of Rs 10 lakhs is also seriously disputed by the accused.
12. It is the specific plea of accused that he gave ExP:1 to complainant for the purpose of security of loan amount of Rs. 5 lakhs. To substantiate his contention accused filed affidavit by way of examination in chief and examined SCCH-2 11 C.C.319/2018 himself as Dw:1. To show payment of Rs 5 lakhs made to brother of Pw:1, through RTGS, the accused produced the statement of account at ExD:1. ExD:2 is the sworn statement of C.V Srinivasulu, father of complainant in PCR no: 1939 2017 which has been filed against KN. Sunil, the son of accused herein.
13. Aforesaid criminal case was filed by the father of present complainant against the son of accused herein alleging that Rs.10,00,000 was paid to him on 14.3.2015. It is just and proper to state the facts which is not in dispute. The admitted facts are as follows:
Admitted facts.
A. C.V. Srinivaslu is father of the complainant and Praksh is elder brother of complainant herein. The complainant and his father are living together at Amtrutahalli. The father of complainant herein has SCCH-2 12 C.C.319/2018 filed another private complainant against the son of accused herein for the o/p/u/sec 138 of NI Act as per ExD:2.
B. Except, ExP:1 cheque, no other document was got executed by the complainant for the security of loan transaction in dispute. No promissory note or loan agreement executed by the accused as well. C. In ExP:3, the legal notice issued by Pw:1 it is stated that ExP:1 cheque was issued by the accused on 10.8.2017. However in the complaint as well as evidence of Pw:1, it is stated and deposed that the cheque was issued on 1.8.2017.
D. Pw:1 is a vegetable merchant and he used sell vegetable in CV Raman Nagar, Kaggadasapura, Bengaluru.SCCH-2 13 C.C.319/2018
E. No information given to income Tax department while submitting IT returns by Pw:1 regarding advancement of Rs 10 lakhs by him to accused. F. Praksh, elder brother of Pw:1 is a flower merchant and he runs the flower business under name and style as 'Poojita flowers'.
G. ExP:10 is the statement of account of complainant herein and he did not withdraw huge amount from his bank account before lending money to accused herein.
14. Financial Capacity : The accused has challenged the financial capacity of complainant to lend a sum of Rs. 10 lakhs. As accused has challenged the financial capacity of the complainant to lend such a huge amount, the burden lies on the complainant to prove his financial capacity to lend hand loan of Rs 10 lakhs to accused as well as his source of income.
SCCH-2 14 C.C.319/2018
15. Hon'ble apex court of India had considered section 118, (a), 138 and 139 of NI Act in case between M.S Narayana Menon Vs State of Keral (2006) 6 SCC 39. It was held that presumption both under sections 118 (a) and 139 of Act are rebuttable in nature. What would be the effect of the expressions "may presume" "shall presume" and "conclusive proof" has been considered by hon'ble Supreme Court of India in Union of India Vs. Pramod Gupta (2005) 12 SCC 1. It was noted in M.S Narayana Menon case, that the expression "shall presume" cannot be held to be Synonymous with conclusive proof. Applying the said definitions of "proved" or "disproved" to the principle behind sec. 118(a) of the NI Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that consideration does not exist or considers the non existence of the consideration so probable that a prudent SCCH-2 15 C.C.319/2018 man ought, under the circumstance of the particular case, to act upon the supposition that the consideration does not exist.
16. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
17. In Krishna Janardhan Bhat V Dattatraya G Hegde, (2008) 2 SCC (Cri) 166, the hon'ble Apex could held that an accused for discharging the burden of proof placed upon him under a statue need not examine himself. He may discharge his burden on the basis of the material already brought on record. An accused has a constitutional right to maintain silence. "Standard of proof on the part of an accused and that of the prosecution in a criminal case is different." The standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". SCCH-2 16 C.C.319/2018
18. In Kumar Exports Vs Sharma Carpets (2009) 2 SCC 513, hon'ble apex court, again examined as to when the complainant discharges the burden to prove that the instrument was executed and when the burden shall be shifted (In paras 18 to 20).
19. In Rangappa Vs. Sri Mohan 2010 (11) SCC 441, hon'ble Apex court held that the presumption mandated by sec. 139 of NI Act, does indeed include the existence of a legally enforceable debt or liability, which of course, is in the nature of rebuttable presumption (in para 26). In several decisions, hon'ble apex courts have held that it is not necessary for the accused to come in the witness box to support his defence.
20. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on the cheque having been admitted, a presumption shall be raised under sec 139 of Act, that the cheque was issued in discharge of SCCH-2 17 C.C.319/2018 debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused.
21. It is an admitted fact that, P.W.1 is mere vegetable vendor. So the financial capacity of P.W.1 to lend money is being challenged by the accused. Although P.W.1 is the vegetable merchant, he is not an income tax assessee and this fact is taken into consideration to assess the financial capacity of P.W.1 to deal with the financial affairs particularly such as lending huge amount to anyone including accused.
22. Firstly, the date of alleged loan is contradicting with the averments made in the complaint as well as evidence. In the complaint, it is stated that entire amount of Rs.10,00,000/ was given by P.W.1 to accused on 24.10.2016. However in the crossexamination P.W.1 deposed that, once he gave Rs.2 lakhs to the accused and on different dates he gave Rs.5,00,000/ and Rs.3,00,000/ to the accused. Thus, it is clear from his SCCH-2 18 C.C.319/2018 evidence that, he did not gave entire amount of Rs.10,00,000/ to accused on 24.10.2016 as stated in the complaint. P.W.1 has deposed as follows:
" MAzÀÄ ¸À® gÀÆ 2 ®PÀë ºÀt, MAzÀÄ ¸À® gÀÆ. 5 ®PÀó ºÀt ªÀÄvÉÆÛAzÀÄ ¸À® gÀÆ. 3®PÀó ºÀt ºÉÃUÉ DgÉÆæUÉ PÉÆnÖzÉÝÃ£É J£ÀÄßvÁÛgÉ. AiÀiÁªÀ AiÀiÁªÀ ¢£ÁAPÀzÀAzÀÄ ºÀt DgÉÆÃ[UÉ PÉÆnÛ¢ÝÃj JA§ ¥Àæ±ÉßUÉ ¸ÁQë ¢£ÁAPÀ ºÉüÀ®Ä £É£À¦®è DzÀgÉ 2-3 wAUÀ¼À CªÀ ¢üAiÀÄ°è DgÉÆæUÉ DUÀ¸ïÖ 2016 gÀ M¼ÀUÉ ºÀt PÉÆnÖzÉÝÃ£É J£ÀÄßvÁÛgÉ.''
23. The evidence of P.W.1 is contradictory with the averments made in the complaint regarding the date of advancement of loan to accused. All these facts have been intentionally concealed by P.W.1 while sending Ex.P.3 notice as well as presenting complaint that is why the date of advancement of loan itself is doubtful from the evidence of P.W.1. The evidence of P.W.1 is contradictory to his own pleadings, which creates doubt in his allegations. SCCH-2 19 C.C.319/2018
24. Secondly, it is an admitted fact that, P.W.1/complainant herein never had Rs.10 lakhs in his hand or in his bank account prior to or at the time of alleged loan transaction. So burden is casted upon the P.W.1 to place cogent and corroborative evidence to prove his source of money to lend the loan. To prove his source of money to lend accused, P.W.1 deposed that, he accumulated the amount of Rs.10,00,000/ by borrowing Rs.5,00,000/ from one Rajesh G., who was examined as P.W.2 and Rs.3,00,000/ was accumulated by pledging gold belonging to his mother. The total amount received by complainant under gold loan, which is mentioned in Ex.P.7 is only Rs.99,999/ (Rs.1,00,000/). Ex.P.8 is ledger in respect of gold loan pertaining to period 2018, which is not related to transaction of present case. There is no sufficient evidence placed on record to establish SCCH-2 20 C.C.319/2018 that, the accused accumulate Rs.3,00,000/ by pledging gold as per Ex.P.7.
25. Ex.P.9 is the account statement of P.W.2 Rajesh G. P.W.1 deposed that, he has received Rs.5,00,000/ from the above said Rajesh G. To substantiate his contention he examined above said Rajesh G. as P.W.2. The entries made in Ex.P9 reveals that, P.W.2 himself has borrowed loan of Rs.4,85,000/ in the year 2016 for his necessity. Rs.1,44,697/ out of Rs.4,85,000/ was being paid by P.W.2 towards loan borrowed by him. So it can be easily inferred that only Rs.3,40,303/ was in account of Pw:2, after repayment of above loan. P.W.2 has withdrawn Rs.3,00,000/ from his bank account on 18.07.2016, as per entries made in Ex.P.9. However, there is no evidence to show that, he has paid the said Rs.3,00,000/ out of Rs.5,00,000/to Pw:1 as contended by him.
SCCH-2 21 C.C.319/2018
26. Thirdly, no documents were also got executed by Pw:2 from complainant while paying Rs.3,00,000/ or Rs.5,00,000/ as contended by him. No interest is also imposed by P.W.2 for the loan amount paid by him to complainant. Even the alleged amount received from P.W.2 and amount mentioned in Ex.P.7 is also not sufficient for the complainant to accumulate Rs.10,00,000/ in order to pay that to accused.
27. Moreover perusal of Ex.P.10, the pass book of the complainant discloses that, there was sum of Rs.2,82,743/ in the bank account of complainant as on 05.10.2016. But he never withdrew said amount prior to or on the date of the loan transaction in dispute. Thus, it is clear before the court that, complainant never withdrawn the amount from his bank account as deposed by him in his crossexamination. The complainant has failed to prove his financial capacity to lend money to the accused. My reasons are supported by the decision of Hon'ble Apex Court reported in the case between SCCH-2 22 C.C.319/2018 Basalingappa Vs. Mudibasappa in AIR 2019 Supreme Court 1983.
28. Another aspect is that, why no document as instrument was executed although the huge amount was allegedly being paid to accused is relevant question, which could be posed in the matter. Not only no document had been executed, even no interest has been charged. As deposed by P.W.1 himself, Rs.2,00,000/, Rs.5,00,000/ and Rs.3,00,000/ was given to accused by him on different months as discussed above. No documents were got executed by him for the security of said loan in each and every time while lending money.
29. Pw:1 deposed that the alleged loan amount was being paid by P.W.1 on or before August 2016 on different dates and months. The conduct of complainant creates doubt in the mind of court. No documents were also obtained by him for the purpose of security of loan, whenever he paid the amount to accused. According to Ex.P.1cheque was being issued by the SCCH-2 23 C.C.319/2018 accused after seven months of alleged loan transaction. No instrument was being executed by the accused for the security of above loan till July2017.
30. It could be seen from the evidence of P.W.1 that complainant himself has borrowed loan from P.W.2 and pledged gold to give the same to accused without interest on principal amount, which creates doubt in the case of complainant. My reason is supported by the decision of Hon'ble Supreme Court reported in 2007 AIR SCW 6736 in the case between John K. John Vs. Tom Varghese and Another and the decision of hon'ble High court of Karnataka reported in a case between 1. Shankara Narayana V/ K. Annappa Prabhu in Crl. Appeal no:9872011 dtd; 2.12.2019. 2) Smt. Shashikala Vs. Sri Nyatappa in Crl.A no: 9012010 dtd: 22.9.2020. 3) Ashok Tatappa Kotiwale Vs. Sevantha Sukumar Bagi in Crl.A no: 1000262015 dtd; 2.12.2020. SCCH-2 24 C.C.319/2018
4) Yallappa Basappa Hadapad Vs. Nabisab Rajesab Nadaf, in Crl.A no: 1000592014 dtd: 20.11.2010. 5) T. Venkataramaiah Vs. Esha G S/o Gangadhar in Crl.A no:
4982011 dtd. 25.9.2020, and 5) Basalingappa v. Mudibaappa, 2019 (5) SCC 418, AIR 2019 SC 1983.
31. Based on evidence led by defence, this court is inclined to hold that the accused has raised a probable defence and complainant failed to prove his financial capacity. Therefore, the complainant is failed establish the advancement of loan and his financial capacity to lend money by placing cogent and corroborative evidence. Hence Point no:1 is answered in the negative and point no:2 in the affirmative.
32. Point no:3 : For the reasons discussed above in Point no:1 and 2, I, proceed to pass the following: SCCH-2 25 C.C.319/2018
ORDER Acting U/sec 255 (1) of Cr.P.C, the accused is not found guilty and therefore, acquitted him for the offence punishable under Section 138 of the Negotiable Instrument Act.
The bail bond of accused and that of surety is hereby stands cancelled.
(Dictated to the stenographer on laptop, typed by her, corrected, print out taken, signed, then pronounced in open court on this the 14th day of September 2021) (Shainey K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT PW.1 : Sri. Balamurali C.S. PW.2 : Sri. Rajesh G. LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:SCCH-2 26 C.C.319/2018
Ex.P.1 : Original Cheque dated:01.08.2017.
Ex.P.1(a) : Signature of accused
Ex.P.2 : Cheque return memo dated:31.10.2017.
Ex.P.3 : Copy of Legal Notice dated:28.11.2017.
Ex.P.4 : Postal receipt.
Ex.P.5 : Postal Acknowledgment.
Ex.P.6 : Reply notice issued by the accused.
Ex.P.7 & 8: Two gold loan ledger extract of Muthoot
Fincorp Ltd.
Ex.P.9 : Vijaya Bank Account Statement of Rajesh.
Ex.P.10 : Bank Statement of complainant.
Ex.P.11 : True copy of loan application and Vijaya Bank
loan sanction letter of P.W.2.
Ex.P.12 : Statement of account of P.W.2.
LIST OF WITNESSES EXAMINED BY ACCUSED
D.W.1 : Sri. K.N. Nagabhushan.
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED Ex.D.1 : Bank Statement of Accused. Ex.D.2 : Certified copy of Sworn Statement of C.V. Srinivasulu in PCR.No.11939/2017. Ex.D.3 to 5: Certified copy of three cheques produced in PCR.No.11939/2017.SCCH-2 27 C.C.319/2018
Ex.D.6 : Certified copy of Legal Notice dt:23.08.2017. Ex.D.7 : Certified copy of Reply Notice dt:08.09.2017. Ex.D.8 : Certified copy of Sworn Statement of C.V. Srinivasulu in C.C.23528/2017.
(Smt. Shainey K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.