Bangalore District Court
Sri. Ramakrishna. V.T vs Smt. Renukadevi on 5 April, 2018
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SMT. C.G. VISHALAKSHI, B.A.L., L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO.12781/2016
Dated: This the 5th day of APRIL-2018
COMPLAINANT/S: Sri. Ramakrishna. V.T.
S/o. Late. Thimmaiah,
Aged about 60 years,
R/at. U-33, 6th Main,
RGI Colony,
Lakshminarayanapura,
Bangalore-560021.
ACCUSED: Smt. Renukadevi,
W/o. K.B. Mohanraju,
Aged about 50 years,
R/at. No.U-38, 6th Main,
RGI Colony,
Lakshminarayanapura,
Bangalore-560021.
OFFENCE Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Acquitted
**
JUDGEMENT 2 C.C.12781/2016
JUDGEMENT
This complaint is filed against t accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The accused is known to him since more than 35 years, as the both families are residing in the same locality.
The accused had approached the complainant for financial assistance for construction of new house after demolishing the existed old structure and also for opening ceremony of the newly constructed building and also for her vegetable and fruits business. Hence, she has sought for financial assistance to the tune of Rs.6,00,000/- in the form of hand loan. The complainant by considering her pitiful conditions and also on humanitarian grounds, he had arranged a sum of Rs.5,75,000/- and advanced the same infavour of the accused on 24-04-2013 by way of cash at his house in the presence of the witness. The accused has agreed to pay JUDGEMENT 3 C.C.12781/2016 interest for the said amount at the rate of 24% p.a. She also agreed to repay the said loan amount within 2½ years.
When the complainant has insisted for document, then the accused had executed on demand promissory note and consideration receipt infavour of the complainant and also issued two post dated cheques bearing No.189851 for Rs.2,75,000/- and cheque bearing No.189852 for Rs.3,00,000/- and both cheques were dated: 16-10-2015 and both are drawn on IDBI Bank, Malleshwaram Branch, Bangalore.
3. It is further case of the complainant that the accused has performed the house opening ceremony on 13-05-2013 and she had invited the complainant also. The accused has paid interest for few months, but thereafter she did not chosen to pay interest. When the complainant has insisted the accused for interest, then she went on assuring and promising that she would pay the same as early as possible, but she did not chosen to do so. Hence, the complainant has demanded the accused to return his loan JUDGEMENT 4 C.C.12781/2016 amount and also to pay the up to date interest. Accordingly, on 14-10-2015 the accused has written letter to the complainant admitting her liability to pay the loan amount and sought for two months time and if not the accused has permitted to present the cheques for encashment. Inspite of granted two more months time, the accused did not chosen to keep up her words. The complainant has presented the said cheques for encashment through his banker i.e., Canara Bank, RNR 2nd Block, Rajajinagar, Bangalore. Those cheques were returned for the reason 'Funds Insufficient' vide memo dated: 17-12-2015. Hence, he caused legal notice against the accused on 02-01-2016 by way of RPAD, but when he neither received back RPAD cover nor acknowledgment, he has lodged complaint with the post office, but the postal authorities have not replied in time. Hence, having no other go, the complainant maintained this complaint against the accused alleging that the accused has committed an offence punishable under Section.138 of JUDGEMENT 5 C.C.12781/2016 Negotiable Instruments Act and prays to deal the accused as per law.
4. On presentation of the complaint, this court has taken cognizance of the offence; sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to her. Substance of the accusation was read over and explained to the accused. The accused did not plead guilty and claims to be tried. Hence, the matter was posted for the evidence of the complainant.
5. In order to prove the case of the complainant, he got examined himself as PW.1 and got marked documents as Ex.P1 to P16 and closed his side evidence. After completion of the complainant's evidence, the accused was examined under Section.313 of Cr.P.C. and her statement was recorded. To substantiate her defence, the accused JUDGEMENT 6 C.C.12781/2016 examined herself as DW.1, but not produced any documents on her side.
6. Heard arguments. The accused counsel has submitted written arguments.
To strengthen the case of the complainant, the counsel for the complainant has relied upon the following citations:
(2001) 6 SCC 16 Hiten P. Dalal V/s. Bratindranath Banerjee ** 2003(1) DCR 540 H. Shivraj V/s. Sree Rayalseema Hi-Strength Hypo Limited Gondiparla, Kurnool and another ** AIR 2005 Madras 90 Natarajan V/s. Marappa Gounder ** 2005(1) DCR 375 Noble T. Francis V/s. Seleena Jos ** 2006 Cri.L.J.1 Gorantla Venkateswara Rao V/s. Kolla Veera Raghava Rao & Anr ** 2006(6) AIR KAR R.483 S. Parameshwarappa & Anr. V/s. S. Choodappa ** 2007(2) DCR 273 V.R. Jayasankar V/s. K.G. Dharman & Anr.
** JUDGEMENT 7 C.C.12781/2016 (2008) 7 SCC 655 Mallavarapu Kasivisweswara Rao V/s. Thadikonda Ramulu Firm and others ** AIR 2010 SC 1898 Rangappa V/s. Mohan ** 2012(1) DCR 177 Deepak Vig V/s. Avdesh Mittal ** 2017(2) DCR 76 Mukesh Kumar V/s. State & Anr ** 2017(3) DCR 603 Bansal Plywood V/s. State (NCT of Delhi) & Ors ** 2017(2) DCR 691 P. Ethiraj V/s. M. Nowsath Seth **
7. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
POINTS
1. Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence punishable under Section.138 Negotiable Instruments Act?
2. What order?JUDGEMENT 8 C.C.12781/2016
8. My answers to the above points are as follows:
Point No.1: In the Negative
Point No.2: As per the final order,
for the following.
:: REASONS ::
9. POINT NO.1: As the accused did not pleaded
guilty, the complainant has chosen to examine himself as PW.1 and got marked documents as Ex.P1 to P16.
As per the decision reported in ILR 2008 KAR PAGE- 4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex court in AIR-2008 SC-1325 between Krishna Janardhan Bhat V/s Dattatreya G. Hegde, in order to attract Sec.138 of Negotiable Instruments Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally JUDGEMENT 9 C.C.12781/2016 enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
10. Keeping in view the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P1 and P2 are the on demand promissory note and consideration receipt.
(b) Ex.P3 and P4 are the cheques i.e., cheque bearing No.189851 for Rs.2,75,000/- and cheque bearing No.189852 for Rs.3,00,000/-, both dated: 16-10-2015, both drawn on IDBI Bank, Malleshwaram Branch, Bangalore-560003. As per the say of the complainant, Ex.P3(a) and P4(a) are the signatures of the accused.
(c) Ex.P5 and P6 are the Bank endorsements issued by the Bank authorities, dated: 17-12-2015 for having dishonour of the cheques for the reason 'Funds Insufficient'.
JUDGEMENT 10 C.C.12781/2016
(d) It must be noted as per Clause (b) proviso to Section.138 of Negotiable Instruments Act, the complainant was required to make a demand for payment of the said amount within 30 days from the date of receipt of cheque as un-paid.
(e) Ex.P7 is copy of the legal notice dated: 02-01-2016, which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheques amount by issuing notice against her which is within 30 days.
(f) Ex.P8 is the postal receipt, Ex.P9 is the letter to the Post Master and Ex.P10 is the settled reply issued by the postal authorities, it shows that notice sent against the accused under RPAD was duly served on the accused.
As per Clause (C) proviso to Section.138 of Negotiable Instruments Act, the accused is entitled 15 days time to make payment of money covered under cheque. Further, as per Section.142 (b) of Negotiable Instruments Act, JUDGEMENT 11 C.C.12781/2016 complaint has to be filed within 30 days from the date of which the cause of action arose. Therefore, the complainant has filed this complaint well within time.
11. Thus, the complainant has fulfilled all the ingredients, which were required for the completion of the offence punishable under Section.138 of Negotiable Instruments Act.
12. On perusal of the entire materials on record, it shows that the complainant has maintained this complainant against the accused alleging that the accused being known person and residing in the same locality, had borrowed a sum of Rs.5,75,000/- to meet her legal necessities i.e., to construct the house and also for the purpose of house opening ceremony and also for her vegetable and fruits business, assuring to repay the same within 2½ years along with interest at the rate of 24% p.a. and executed on demand promissory note and consideration receipt in his favour in the presence of the witnesses and she had given these disputed cheques in favour of the complainant. But JUDGEMENT 12 C.C.12781/2016 thereafter though accused had paid interest for few months, but she did not paid any interest to the complainant. On the other hand, she went on postponing the same on one pretext or the other. Hence, when the complainant had demanded the accused to repay the loan amount along with up to date interest, then the accused had executed a letter infavour of the complainant admitting her liability to repay the loan amount and sought for two months time. But despite of granting two months time, the accused did not make any attempt to repay the loan amount with interest. Hence, as per the request of the accused through her letter, he had presented the said cheques for encashment through his banker and those cheques were returned unpaid for the reason 'Funds Insufficient'. Despite of issuance of demand notice and its due service on the accused as per the settled reply given by the postal authorities, since the accused did not come forward to pay the amount covered under the cheques. Hence, he maintained this complaint.
JUDGEMENT 13 C.C.12781/2016
13. Per-contra, on reading the line of cross-examination and the defence setup by the accused, though accused not denied the acquaintance in between herself and the complainant and the monitory transaction in between herself and the complainant and also the fact that Ex.P3 and P4 cheques are belongs to the bank account of the accused and Ex.P3(a) and P4(a) are her signatures. But she denied the loan transaction in question by contending that she never borrowed any loan of Rs.5,75,000/- from the complainant and she never issued these disputed cheques infavour of the complainant towards discharge of any debt or liability of repayment of sum of Rs.5,75,000/-. On the other hand, she has taken up the defence that she had borrowed loan of Rs.60,000/- only on 01-01-2012 on interest at the rate of 12% p.a. and she had repaid the said loan amount with interest on 01-02-2013, at that time of lending loan of Rs.60,000/- infavour of the accused, the complainant had collected her signed blank cheques and blank pro-note and consideration receipt as security. After clearance of the alleged debt of Rs.60,000/- with interest, JUDGEMENT 14 C.C.12781/2016 despite of the fact that the accused has demanded him to return her security cheques, but the complainant without returning her security documents, on the other hand he by misusing the same, has filed this false complaint against her, though there exists no debt or liability of Rs.5,75,000/- in between herself and the complainant.
14. Thus, there is no dispute so as to the fact that Ex.P3 and P4 cheques are belongs to the bank account of the accused and Ex.P3(a) and P4(a) are her signatures.
15. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE- 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of Negotiable Instruments (cheque in question) is admitted as well as proved.
JUDGEMENT 15 C.C.12781/2016
16. In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption under Section.139 of Negotiable Instruments Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration.
17. Having admitted the fact that Ex.P3 and P4 cheques are belongs to the bank account of the accused and Ex.P3(a) and P4(a) are her signatures, presumption arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, the burden is on the accused to rebut the same with probable evidence.
18. To prove the case of the complainant, he examined himself as PW.1 and got marked document at Ex.P1 to P16.
JUDGEMENT 16 C.C.12781/2016
19. To falsify the claim of the complainant and to put forth his defence, the accused examined herself as DW.1, but not documents marked on her side.
20. On careful scrutiny of the evidence of both parties, both oral and documentary, it shows that the complainant has maintained this complaint against the accused alleging that the accused being known person, had borrowed loan of Rs.5,75,000/- from him on 24-04-2013 for the purpose of house opening ceremony of her newly built house and also for her vegetable and fruits business. The accused though not denied about the monitory transaction in between herself and the complainant, but she denied the loan transaction in question contending that she never borrowed any loan of Rs.5,75,000/- from the complainant and denied about issuance of disputed cheques infavour of the complainant towards discharge of any debt of Rs.5,75,000/-. When such being the case, burden is on the complainant to prove the fact of loan transaction between himself and the accused i.e., about lending loan of JUDGEMENT 17 C.C.12781/2016 Rs.5,75,000/- infavour of the accused with necessary evidence.
21. No doubt, having admitted the fact that Ex.P3 and P4 cheques are belongs to the bank account of accused and signatures found on Ex.P3 and P4 are that of her signatures, presumption would arose infavour of the complainant under Section.139 of Negotiable Instruments Act that the said Negotiable Instruments have been given towards discharge of legally enforceable debt or liability and burden is on the accused to dispel the said presumption by raising probable defence by placing any cogent and convincing evidence.
22. In the case on hand, the accused has challenged the very loan transaction in question in between herself and the complainant by taking the defence that she never borrowed any loan of Rs.5,75,000/- from the complainant. To prove the fact of lending loan of Rs.5,75,000/- infavour of the complainant, though complainant has produced documents like demand promissory note and consideration JUDGEMENT 18 C.C.12781/2016 receipt which are marked at Ex.P1 and P2 stating that the accused had executed those documents in his favour for having acknowledging the receipt of the loan amount of Rs.5,75,000/-, but the accused not only denied the fact of execution of said promissory note and consideration receipt infavour of the complainant, but also denied the signatures found on Ex.P1 and P2 documents which are marked at Ex.P1(a) and P2(a) are not her signatures, contending that she never executed such documents like Ex.P1 and P2 promissory note and consideration receipt infavour of the complainant and she denied the genuinity of these documents contending that those documents are fabricated and created documents.
23. When such being the case, burden is on the complainant to prove the fact of execution of such Ex.P1 and P2 demand promissory note and consideration receipt by the accused in his favour by proving the fact that the signatures which are marked at Ex.P1(a) and P2(a) are the signatures of the accused by placing any material evidence JUDGEMENT 19 C.C.12781/2016 before this court. But in this regard, the complainant except production of the documents i.e., promissory note and consideration receipt as per Ex.P1 and P2, not made any attempt to prove the factum of execution of the said documents by the accused in his favour for having receipt of alleged loan of Rs.5,75,000/- by examining any witnesses to the alleged loan transaction before this court. Because, mere production of the documents is not suffice to come to conclusion about the proof of the said documents. On the other hand, burden is on the complainant to prove the due execution of the document and to prove the fact of loan transaction by examining the alleged witness of the said Ex.P1 and P2 documents in the presence of whom the alleged loan transaction had been taken place. But though complainant deposed in his evidence that he had lent loan of Rs.5,75,000/- infavour of the accused at his house in the presence of the witness and stated that the accused had executed the said document like Ex.P1 and P2 in his favour for having received the said loan amount from him etc. But to prove JUDGEMENT 20 C.C.12781/2016 the said fact, he did not made any attempt to examine any person who had either witnessed the alleged lending loan of Rs.5,75,000/- by the complainant infavour of the accused or about the person in whose presence the accused had executed such document like Ex.P1 and P2 demand promissory note and consideration receipt infavour of the complainant. This creates doubt about the execution of Ex.P1 and P2 documents by the accused in favour of the complainant for having receipt of the alleged loan of Rs.5,75,000/- on 24-04-2015.
24. Though at one stretch, the complainant made an attempt to say that the accused only had brought the witness and the person who signed as witnesses to the alleged Ex.P1 and P2 documents. With this he made an attempt to say that since they are witnesses of the accused, he did not examined those persons. But whatsoever it may be, burden is on him to prove the said transaction by examining any witness of the said documents before this court or atleast he should have made any attempt to call JUDGEMENT 21 C.C.12781/2016 them as his witness to prove the said factum of the alleged loan transaction. But no such attempt has been made by the complainant. This creates doubt about not only about the alleged loan transaction of Rs.5,75,000/- in between the complainant and the accused, but also about the alleged execution of Ex.P1 and P2 documents by the accused infavour of the complainant.
25. Further the accused denied the fact of signatures found on Ex.P1 and P2 documents which are marked at Ex.P1(a) and P2(a) are not her signatures. When such being the case, it is for the complainant to prove the said fact i.e., the signatures found on Ex.P1 and P2 documents which are marked at Ex.P1(a) and P2(a) are the signatures of the accused by producing any material admission before this court or by eliciting any material admission from the mouth of DW.1. But no such evidence has been elicited from the mouth of DW.1 in proving the fact that the signatures found on Ex.P1 and P2 documents which are marked at Ex.P1(a) and P2(a) are her signatures. JUDGEMENT 22 C.C.12781/2016
26. Further, the complainant would have proved the said fact i.e., signatures which are marked at Ex.P1(a) and P2(a) are the signatures of the accused by getting reference of the said disputed documents for handwriting expert for scientific analysis by filing necessary applications to get an opinion of the handwriting expert. But no such steps have been taken by the complainant. This also creates doubt with regard to the execution of the alleged Ex.P1 and P2 documents i.e., pro-note and consideration receipt by the accused infavour of the complainant. On the other hand, on perusal of the disputed signatures which are marked at Ex.P1(a) and P2(a) with that of the admitted signatures of the accused found on vakalath, bail bond, plead, 313 statement and also on her deposition by invoking Section.73 of Indian Evidence Act, it is shows that, they differs one another. This also creates doubt about the execution of Ex.P1 and P2 pro-note and consideration receipt by the accused infavour of the complainant. JUDGEMENT 23 C.C.12781/2016
27. Further it is the evidence of the complainant that at the time of lending loan infavour of the accused, the husband and daughter of the accused were present. If that was true, then what was the impediment for the accused to obtain their signatures as witnesses to the alleged pro-note and consideration receipt. But no such attempt has been made by the accused. Though complainant has stated that the accused only had brought readily prepared the documents i.e., pro-note and consideration receipt and hence he could not made the daughter and husband of the accused as witnesses. But this evidence itself creates doubt. Because, how the accused could anticipate the fact that the complainant would advance the loan of Rs.5,75,000/- only in her favour on that particular date to bring the said documents i.e., pro-note and consideration receipt readily prepared by getting typed. That means to say that how she could bring the documents readily typed to borrow loan from the complainant and how she could know about the fact that the complainant would impose 2% interest on the loan proposed to be lend in her favour, JUDGEMENT 24 C.C.12781/2016 because, the demand promissory note and consideration receipt are in the form of typed one and there is recital about the imposition of the interest at the rate of 2% p.m. with the averment of quantum of loan amount as Rs.5,75,000/-. This creates doubt with regard to the say of the complainant that the accused only had brought prepared Ex.P1 and P2 pro-note and consideration receipt to borrow loan from him etc. This also creates doubt about the fact of execution of the alleged documents i.e., Ex.P1 and P2 documents in his favour for having acknowledged the receipt of the loan amount.
28. Though at one stretch, the accused made an attempt to say that after stipulated time of 2½ years to pay the alleged loan of Rs.5,75,000/- as agreed by her, he had approached him seeking repayment of the loan amount often and often and hence the accused had given requisition letter as per Ex.P12 to him admitting the liability of repayment of the loan amount of Rs.5,75,000/- and sought two months time to repay the said amount etc. JUDGEMENT 25 C.C.12781/2016 But the accused has denied the fact of execution of the said letter which is marked at Ex.P12 infavour of the complainant by denying the signatures found on the said documents. When such being the case, burden is on the accused to prove the fact of existence of the said Ex.P12 letter, but he did not prove the said fact also by placing any material evidence before this court nor elicited any material admission from the mouth of DW.1 during cross- examination at the time of confronting the said document to the accused. On the other hand, it shows that the signatures found on Ex.P12 which is marked Ex.P12(a) is also not tallies with the signatures of the accused i.e., admitted signatures of the accused found on the cheques and other documents. Hence, the complainant has failed to prove the fact of execution of Ex.P12 letter in his favour admitting the liability of repayment of the loan amount and sought for extension of time to repay the loan amount.
29. Further the accused had questioned the source of arrangement of funds and monitory transaction of the JUDGEMENT 26 C.C.12781/2016 complainant to lend loan to the tune of Rs.5,75,000/- in her favour. To prove the said fact, the accused relied on the cross-examination of PW.1, wherein though PW.1 deposed that he was working as part time typist and has income of Rs.4,000/- p.m. This creates doubt with regard to his monitory capacity to lend loan to the tune of Rs.5,75,000/- infavour of the accused. Because, how the person could lend loan to the tune of Rs.5,75,000/- who has salary is just of Rs.4,000/- to Rs.4,500/- p.m. This creates doubt. Because, as per the version of the complainant, he is working as part time typist and remaining time, he used to sit idle and he has no other source of income. When such being the case, how the complainant could lend loan of such huge amount of Rs.5,75,000/- having that much meager salary of Rs.4,000/- or Rs.4,500/- p.m. This creates doubt with regard to the very monitory capacity of the complainant to lend loan infavour of the accused.
30. No doubt, the accused at one stretch stated that he had mortgaged his house property infavour of one JUDGEMENT 27 C.C.12781/2016 Sharadamma for Rs.5,00,000/- during January-2013 and he had that amount and out of the said amount, he had lent loan infavour of the accused etc. But to substantiate the said fact, he did not produced any such documents like mortgage agreement before this court, though he had undertaken to produce the said documents. This creates doubt with regard to the say of the accused about the source of arrangement of funds to lend loan of Rs.5,75,000/- infavour of the accused. On the other hand, an adverse inference could be drawn against the complainant under Section.114(g) of Indian Evidence Act, that there was no any such documents like mortgage agreement in the possession of the complainant and he had not mortgaged any such property infavour of anybody and he had no such amount with him in order to lend the loan of Rs.5,75,000/- infavour of the accused. This creates doubt with regard to the source of arrangement of funds and also monitory capacity of the complainant in order to lend such huge amount of Rs.5,75,000/-.
JUDGEMENT 28 C.C.12781/2016
31. When the complainant has failed to prove the fact of source of arrangement of funds and his monitory capacity, then the doubt created in the minds of this court with regard to the very existence of loan transaction of Rs.5,75,000/- in between himself and the accused i.e., with respect to the very lending loan of Rs.5,75,000/- by the complainant infavour of the accused. When the complainant has failed to prove the factum of advancement of loan of Rs.5,75,000/- infavour of the accused, then the say of the complainant that the accused had given these disputed cheques in his favour towards discharge of the alleged debt or liability is also not acceptable and convincing one.
32. No doubt, the complainant has produced F.D. receipt before this court as per Ex.P14 and with this he made an attempt to say that since he had advanced loan of Rs.5,75,000/- infavour of the accused. The accused had given the said FD receipt in his favour as security. But on careful perusal of the said document, it shows that the JUDGEMENT 29 C.C.12781/2016 maturity value of the said FD is for Rs.85,306/-. The loan allegedly lent infavour of the accused is to the tune of Rs.5,75,000/-. When such being the case, as rightly pointed out by the advocate for the accused during the course of argument that no person would get security for such lesser amount. Because, usually the security will be obtained to the amount equalent to the loan mount. In the case on hand, it is the say of he complainant that he had advanced loan of Rs.5,75,000/- infavour of the accused. When such being the case, if at all the complainant had an intention to obtain any security documents, then certainly he would have obtained security equalent amount to the loan allegedly lent infavour of the accused. Hence, the say of the complainant that the Ex.P14 FD receipt has been given by the accused in his favour as security to the alleged loan of Rs.5,75,000/- etc., holds no water.
33. No doubt, the accused has not proved her defence i.e., circumstance in which the disputed cheques went to the possession of the complainant by producing any JUDGEMENT 30 C.C.12781/2016 documents before this court i.e., with respect to borrowing loan of Rs.60,000/- only on furnishing these disputed cheques as security and it was misused by the complainant, despite of clearance of the debt by placing any cogent and convincing evidence. But mere that fact, it cannot be said that the complainant has proved the alleged loan transaction in question unless he proves the same by placing any material and cogent evidence beyond shadow of doubt. But as aforesaid discussion, the complainant utterly failed to prove the very fact of existence of loan transaction of Rs.5,75,000/- in favour of the accused and also failed to prove the factum of issuance of these disputed cheques by the accused in his favour in connection to the said loan transaction. On the other hand, it shows that the complainant gained possession of the cheques of the accused i.e., Ex.P3 and P4 cheques in some other circumstances.
34. When the cheques were obtained in different circumstances, then the accused cannot be held liable for JUDGEMENT 31 C.C.12781/2016 the conviction for the offence punishable under Section.138 of Negotiable Instruments Act.
35. In the case on hand also, there is no evidence placed before this court by the complainant to show that the Ex.P3 and P4 cheques were given by the accused towards discharge of the alleged debt of Rs.5,75,000/- only by proving the alleged loan transaction in between himself and the accused. Therefore, the accused is not liable for conviction.
36. Hence, the presumption on the existence of above noted the fact that Ex.P3 and P4 cheques were issued to the complainant to discharge of existed liability has been rebutted through sufficient evidence. Hence, onus shifted on the shoulder of the complainant, to prove the fact that there is existence of debt or liability in between the complainant and the accused and to prove the fact of advancement of alleged loan of Rs.5,75,000/- infavour of the accused by placing necessary evidence with regard to loan transaction beyond reasonable doubt. But as JUDGEMENT 32 C.C.12781/2016 aforesaid discussion the complainant failed to prove the fact of lending loan of Rs.5,75,000/- infavour of the accused by placing any cogent and convincing evidence. Hence, with all these reasons, I am of the opinion that the complainant utterly failed to prove the guilt of the accused beyond reasonable doubt for the offence punishable under Section.138 of Negotiable Instruments Act. Hence, I answered Point No.1 in the Negative.
37. POINT NO.2: In view of my discussions on Point No.1 as above, I proceed to pass the following:
ORDER Acting under Section.255(1) Cr.P.C., the accused is acquitted for the offence punishable under Section.138 of Negotiable Instruments Act.
The accused is set at liberty and his bail bond stands cancelled.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 5th day of April-2018.) (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.JUDGEMENT 33 C.C.12781/2016
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Ramakrishna. V.T. Documents marked on behalf of the complainant:
Ex.P1 : On demand promissory note Ex.P2 : Consideration receipt Ex.P3&4 : Cheques Ex.P5&6 : Endorsements Ex.P7 : Legal Notice Ex.P8 : Postal Receipt Ex.P9 : Letter to Post Master Ex.P10 : Settled reply issued by postal authorities Ex.P11 : Complaint Ex.P12 : Letter Ex.P13 : Reply Notice Ex.P14 : Fixed Deposit Bond Ex.P15 : House ceremony Invitation Card Ex.P16 : Wedding Invitation Card
Witnesses examined on behalf of the accused:
DW.1 : Renukadevi Documents marked on behalf of the accused:
- Nil -
(C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.