Bangalore District Court
Dilip Kumar vs The Proprietor on 4 March, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 4th day of March - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.3275/2019
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Dilip Kumar,
S/o.Dharam Chand,
Aged about 40 years,
R/at No.1601, 4th Cross,
6th Main, RPC Layout,
Vijayanagar, Bengaluru.
(Rep. by Smt.Hemavathi.A.V, Adv.)
V/S
Accused : The Proprietor,
Sri. Vinayaka Steel Corporation,
#194/L, Ullal Main Road,
III Block, Sir M.V.Layout,
Near Vidyanikethan School,
Bengaluru-56.
(Rep.by Sri.H.T.Jagannatha, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 04.03.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.3275/2019
JUDGMENT
The complainant has presented the instant complaint against the accused on 21.08.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.2,50,000/-.
2. The brief facts of the complainant case is as follows:
The complainant and accused are known to each other well. In a property belongs to the family of accused situated at Ullalu Village, the said property particularly belongs to one Smt.Leela Ramesh, accused came in to contact with the complainant and developed good acquaintance. In that acquaintance, the accused had approached the complainant for hand loan of Rs.2,50,000/- for development of M/s. Vinayaka Steel Corporation and complainant states that, in order to help the accused, distress condition, the complainant paid Rs.2,50,000/- to the accused on 18.11.2017. The accused promised to repay the same within 5 months.
The complainant has further averred that, subsequently, when the complainant requested the accused for repayment of hand loan borrowed, he issued cheque bearing No.409211, drawn on Indian Overseas Bank, Banashankari II Stage Branch, Judgment 3 C.C.No.3275/2019 dated:11.04.2018 and requested the complainant to present it during the 1st week of June, 2018. Accordingly, the complainant had presented the said cheque for collection through his banker viz., Bank of India, RPC Layout Branch, Bengaluru. But it was utter shock and dismay of complainant as per memo dated:11.06.2018, the said cheque came to be dishonoured for the reasons "Payment Stopped by Drawer".
The complainant has further contended that, he brought the said fact to the notice of accused; he pleaded his inability and informed him to arrange the money for repay the hand loan within fortnights, but not paid. Hence, the complainant through his counsel got issued legal notice to the accused on 16.07.2018 by way of R.P.A.D and the same got served on 16.07.2018. After receipt of notice, the accused neither paid the cheque amount nor issued reply. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, this court took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
Judgment 4 C.C.No.3275/2019
4. In response to the summons, the accused appeared through his counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P5. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by him was recorded. In this case, the accused not choosen to entered in to witness box and also not produced any document.
7. Both side counsels have not addressed their arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.2,50,000/- on 18.11.2017 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 Judgment 5 C.C.No.3275/2019 cheque bearing No.409211, dated:11.04.2018 for sum of Rs.2,50,000/- drawn on Indian Overseas Bank, Banashankari II Stage Branch, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P5, they are:
a) Ex.P1 is the cheque bearing No.409211 issued by the accused for sum of Rs.3,25,000/-
dated:11.04.2018, drawn on Indian Overseas Bank, Banashankari II Stage Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:11.06.2018.
Judgment 6 C.C.No.3275/2019
d) Ex.P3 is the Legal Notice dated:10.07.2018.
e) Ex.P4 is the Postal receipt and
f) Ex.P5 is the Postal Acknowledgment Card.
The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citations and relied upon same, they are;
a) (2006) 6 SCC 39
b) (2018) 8 SCC 165
c) LAWS (APH) 2005 10 55
11. In this case, the accused has not choosen to entered into witness box and also not produced documents. But through his counsel has produced the citations and relied upon same. They are:
a) Crl.A.No.23/2010
b) Crl.A.No.918/2010
12. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
13. After cross-examination of PW.1, whatever the incriminating evidence made against the accused was read over and explained Judgment 7 C.C.No.3275/2019 to him as required under Section 313 of Cr.P.C., wherein, he denied the same and substantially given his statement by stating that, he received legal notice and also gave reply. Moreover, he specifically stated that, particularly with H.Ramesh, who is the signatory of Sri Vinayaka Steel Corporation, he did not have any loan transaction. But he specifically stated that, the proprietor of the said concern by name Smt.R.Leelavathy, in order to purchase property, complainant gave Rs.10 lakhs to her, later the said agreement came to be cancelled and the accused concern for repayment of the advance money, got issued the questioned cheque as security, later got cleared money, the complainant without returning the said cheque, filed the false case.
14. From which, it made clear that, the accused not admitted the claim of complainant, apart from cross-examining PW.1, he himself gave statement contrary to the case of complainant and narrated, under which compelling circumstances questioned cheque was came in to the possession of the complainant. No doubt, the accused not entered into witness box to prove his probable defence.
However, it is an appropriate to cite the decisions of the Hon'ble Supreme Court in (2008) 2 Supreme Court Cases Judgment 8 C.C.No.3275/2019 (Criminal) 166 (Krishna Janardhan Bhat V/s. Dattatraya G Hegde) and 2010 AIR SCW 2946 (Rangappa V/s. Mohan).
"The accused need not enter into witness box and he could rebut the presumption envisage under Section 139 of Negotiable Instruments Act by setting up a probable case. As such, there is no strict rule that, the accused should enter into the witness box in support or proof of his defence. The accused has got every right to prove his defence from the cross- examination of PW.1 or the materials already brought on record. It is also held that, the standard of evidence be to led by the accused is preponderance of probabilities and no proof beyond reasonable doubt. On the contrary, for the complainant he should prove his case beyond all reasonable doubt".
15. As per the said dictum, the accused need not require to enter in to the witness box to prove his probable defence, but he can prove his defence by way of cross-examining the PW.1 and relied upon the documents of the complainant. From the point of above dictum, the non-entering into the witness box by the accused is not a ground or hindrance to his probable defence. Therefore, whatever the defence placed by the accused by way of oral say through PW.1 is to be appreciated.
Judgment 9 C.C.No.3275/2019
16. On going through the said dictum, it also pleased to observe that, existence of legally recoverable debt, is not a matter of presumption under Section 139 of Negotiable Instruments Act. It merely raised a presumption in favour of holder of cheque that, the same has been issued for discharge of any debt or other liability. The courts proceed on the basis that Section 139 raises a presumption in regard to existence of debt also. A statutory presumption as on evidentiary value, the question as to whether the presumption stood rebutted are not must, therefore, be determined keeping in view the other evidence on record. Therefore, wherein, it was pleased to held that, for the purpose of rebut the presumption, accused need not require to enter into witness box. Therefore, the accused not entered into witness box is not a ground to draw the adverse inference against him, the accused has observed in the said dictum, had placed his defence by way of cross-examining the PW.1 as well as 313 of Cr.P.C. statement.
17. No doubt, as per Sections 118 and 139 of Negotiable Instruments Act, initial statutory presumption is drawn in favour of complainant that, for discharge of existence of legally recoverable debt, the accused got issued the questioned cheque, unless and until contrary prove. Therefore, the initial statutory presumption Judgment 10 C.C.No.3275/2019 as required, shall be drawn in favour of complainant that, the accused got issued questioned cheque for discharge of existence of legally recoverable debt. It is pertinent to note that, if at all accused admitted the case of complainant, then it is not an issue.
18. In the case on hand, the accused attack on the claim of complainant by way of cross-examining PW.1 and put forth altogether defence by way of suggestion and elicited certain admission, that apart, he also gave his statement. Therefore, whatever the defence placed by the accused is permissible by virtue of the dictum cited supra. Hence, it is require to appraise, whether the accused had discharged initial onus to rebut the statutory presumption as well as facts and circumstances of the case is to be looked into.
19. In this case, the accused choosen to cross-examine the PW.1 against the complaint averments and allegations. Wherein, harping on the name made mentioned in the cheque alleged to be pertaining to the complainant and the initial of the complainant is questioned by the accused. No doubt, the complainant has deposes that, his name spelling is Dilip Kumar. He also admitted that, in the Ex.P1-cheque the spelling is mentioned as Deelip. Therefore, the advocate for the accused has suggested that, the Judgment 11 C.C.No.3275/2019 names of the complainant and name found in Ex.P1-cheque altogether different, hence, it is not refer to complainant. But the PW.1 has denied the said suggestion and stated that, the accused has wrongful spelt out in the cheque. Even on reading of the name's of the complainant made mentioned in the cause title of complaint as well as the cheque, the pronunciation is one and the same. In order to known that, the initial of the complainant at the time of issuance and execution of questioned cheque, definitely, it is not the contention of the complainant that, despite, he gave instruction by mentioning the spelling or tender documents, the accused wantonly mentioned his spelling in the name wrongly. It is mentioning of spelling is left to the knowledge of the person, who got execution. Therefore, the PW.1 has stated that, the complainant was spelt out wrongly and it was informed to him on 11.04.2018 itself, immediately he noticed. Once person issued a cheque, if he capable to issue alternative cheque by mentioning fresh spelling, it is not a mater, but after got issuing the alleged cheque at Ex.P1, the complainant has to be accepted as it does not make much difference and the accused utterly failed to prove that, he had the transaction with one Deelip only and the said cheque was issued only to Deelip not to the complainant.
Judgment 12 C.C.No.3275/2019
20. Under such circumstances, the said mentioning of spelling as it was handed over to the complainant in the similar name person, whatever the defence taken by the accused, regarding mentioning of spelling, wholes no good and it is not support the claim of accused.
21. That apart, it is pertinent to note that, the complainant has put forth his claim contended that, the complainant and accused are acquainted each other in connection to the property sold by Smt.Leela Ramesh to the accused and in that acquaintance, accused asked him for the loan of Rs.2,50,000/- for the development of the accused concern, accordingly, he paid Rs.2,50,000/- on 18.11.2017 and accused promised to repay the same within 5 months and after lapse of stipulated period, when he repeatedly pursued for repayment, then gave questioned cheque dated:11.04.2018 and requested him to present it during 1st week of June, 2018. Since, cheque was dishonoured, he got issued legal notice and served, as not paid money, filed the present case. Under the above set of facts, the complainant approached this court for adjudicate the issue stating that, despite, gave legal notice, accused not paid money, therefore, he committed the offence punishable under Section 138 of Negotiable Instruments Act. No doubt, accused in this case, questioned the very Judgment 13 C.C.No.3275/2019 transaction as well as borrowal of money and got issuance of questioned cheque, but placed his defence by suggesting and getting admission from the evidence of PW.1. The relevant portion of cross of PW.1 is runs thus:
"ªÉÄÁzÀ®Ä DgÉÆæ ªÀÄvÀÄÛ £À£Àß £ÀqÀÄªÉ ¸ÉÊn£À «µÀAiÀÄPÉÌ ¸ÀA§AzÀ¥ÀlÖAvÉ PÀgÁgÀÄ ¥ÀvÀæªÁVvÀÄÛ JAzÀgÉ ¸Àj. DUÀ DgÉÆæUÉ ZÉQÌ£À ªÀÄÄSÁAvÀgÀ gÀÆ.10 ®PÀë ºÀtªÀ£ÀÄß PÉÆnÖzÉÝ JAzÀgÉ ¸Àj. D PÀgÁgÀÄ £ÉÆÃAzÁ¬ÄvÀ PÀæAiÀÄ ¥ÀvÀæ ªÀiÁrPÉƼÀîzÀ PÁgÀt gÀzÁÝVvÀÄÛ JAzÀgÉ ¸Àj. ¸ÉÊn£À°è vÀPÀgÁgÀÄ EzÀÝ PÁgÀt PÀgÁgÀÄ gÀzÁÝVvÀÄÛ JAzÀÄ ¸ÁQë ¸ÀévÀB £ÀÄrAiÀÄÄvÁÛgÉ. DgÉÆæ £À¤ßAzÀ ¥ÀqÉzÀAvÀºÀ gÀÆ.10 ®PÀë ºÀtªÀ£ÀÄß ºÀAvÀºÀAvÀªÁV ¸ÀA¥ÀÅÁtð, £À£Àß ¨ÁåAPï£À SÁvÉUÉ, DgÉÆæ ¨ÁåAPï£À SÁvɬÄAzÀ ªÀÄgÀÄ¥ÁªÀw¹zÁÝgÉ. DgÉÆæ ¸ÀzÀj ºÀtªÀ£ÀÄß AiÀiÁªÀ AiÀÄÁªÀ ¢£ÁAPÀzÀAzÀÄ ¤ÃrzÀÝgÀÄ JA§ÄzÀÄ ºÉüÀ®Ä £É£À¦®è. ¢B18.12.2017 ªÀÄvÀÄÛ ¢B31.01.2018 gÀAzÀÄ DgÉÆæ £À£ÀUÉ vÀ¯Á gÀÆ.5 ®PÀëzÀAvÉ Dgï.n.f.J¸ï ªÀÄÄSÁAvÀgÀ £À£ÀUÉ ¥ÁªÀw ªÀÄÁrzÀÝgÀÄ JAzÀgÉ ¸Àj. DgÉÆæAiÉÆA¢UÉ PÀgÁgÀÄ gÀzÁÝUÀĪÁUÀ PÀæAiÀÄzÀ ¥Àæw¥Às® ªÀÄgÀ½¸ÀĪÀ ¸À®ÄªÁV DvÀ¤AzÀ ¨ÀszÀævÉUÁV ¸À» ªÀiÁrzÀ SÁ° ZÉPÀÄÌUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆArzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è."
22. On meticulous perusal of the said evidence of PW.1, though the complainant was very much silent as to the agreement entered into between complainant and accused and receipt of Judgment 14 C.C.No.3275/2019 advance money of Rs.10 lakhs pertaining to immovable property and it was repaid by the accused to him, nothing has stated in the complaint, but there is clear cut admission revealed from the evidence of PW.1. No doubt, from the evidence stated above, the PW.1 clearly admitted that, in respect of site, there was sale agreement was entered into between complainant and accused and complainant gave Rs.10 lakhs advance to the accused. The PW.1 clearly admitted that, the said sale agreement got cancelled. The PW.1 volunteers that, since there was dispute pertaining to the property, agreement came to be cancelled. More particularly the PW.1 admitted that, stage by stage, the accused whatever the advance amount of Rs.10 lakhs issued by complainant got repaid by way of remitting to the bank account of the complainant. PW.1 deposes, he does not remember the date, when so he repaid. However, the suggestion made by the advocate for the accused that, on 18.12.2017 and 31.01.2018, the accused by way of RTGS got repaid sum of Rs.5 lakhs each to the complainant, and suggestion is been admitted by the complainant.
23. More particularly, the later portion of suggestion made it clear that, at the time of cancellation of the agreement, for the guarantee of repayment of advance money payable by the accused, the complainant took the signed blank cheque. The said Judgment 15 C.C.No.3275/2019 was denied by the complainant. However, the evidence of PW.1 made it clear that, prior to the complaint loan transaction dated:18.11.2017, the accused has demonstrate the property transaction were held and accused got received Rs.10 lakhs advance money and it was repaid on 18.12.2017 and 13.01.2018. The said transaction clearly admitted by the complainant. From the evidence of PW.1 as well as the probable defence of the accused, it is crystal clear that, whatever the property transaction held between complainant and accused, it came to be ended by way of cancellation of agreement and accused got repaid received from the complainant. From the admission, it made clear that, on 31.01.2018 itself the complainant took back Rs.5 lakhs as last clearance amount by way of RTGS. In the subsequent suggestion made to PW.1, it was clear that, the complainant took signed blank cheque as security for repayment of the advance money inspite of he cleared the money, complainant not returned the same and filed the false case by filled the amount. Therefore, it made clear that, there was serious allegation made against the complainant, as to the alleged borrowal of loan.
24. In the cross-examination, the complainant clearly admitted that, he not paid any money to the accused concern by name M/s.
Judgment 16 C.C.No.3275/2019 Vinayaka Steel Corporation. The PW.1 has denied that, for the purpose of said concern, accused not borrowed money from the complainant. Then, why the complainant has brought the said concern as accused without mentioning liability of the accused is also no satisfactory evidence from the say of the complainant.
25. On going through the complaint allegations, it discloses, he alleged on 18.11.2017 paid Rs.2,50,000/- by way of cash and accused undertakes to repay the same within 5 months and as he agreed not paid, subsequently, when complainant asked for repayment, accused gave questioned cheque on 11.04.2018 and requested to present it during the 1st week of June, 2018. During the course of cross of PW.1, he deposes that:
"DgÉÆæ £À¤ßAzÀ ¸Á®ªÀ£ÀÄß ¥ÀqÉ¢zÀÄÝ, d£ÀªÀj-2018 gÀAzÀÄ ¤¦.1gÀ ZÉPÀÌ£ÀÄß ¤ÃrzÀÝgÀÄ JAzÀÄ ¸ÀévÀB £ÀÄrAiÀÄÄvÁÛgÉ. ¸Á® ¥ÀqÉzÀ ¢£À CgÉÆæ¬ÄAzÀ AiÀiÁªÀÅzÀÉà zÁR¯É ¥ÀqÉ¢®è PÁgÀt, gÀÆ.10 ®PÀëªÀ£ÀÄß DvÀ ¥ÁæªÀiÁtôPÀvɬÄAzÀ ªÀÄgÀ½¹zÀÝ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
26. On going through the above testimony of PW.1, he deposed that, accused gave the questioned cheque in the month of January, 2018. More particularly he deposed that, as on the date of alleged lent of loan, he not secured any document from the accused as security, as the accused sincerely returned Rs.10 Judgment 17 C.C.No.3275/2019 lakhs. From the said evidence of PW.1, it made clear that, as on the date of alleged payment of loan, complainant not obtained any security document. The said testimony also discloses, as accused was already cleared Rs.10 lakhs sincerely, he came down to pay the alleged loan amount on 18.11.2017.
27. On going through the previous cross-examination portion re-produced above, it made clear that, the accused got returned Rs.10 lakhs on 18.12.2017 and 31.01.2018 for sum of Rs.5 lakhs each. On meticulous perusal of those dates, it discloses, after the alleged payment of loan made mentioned in the present complaint dated:18.11.2017, Rs.10 lakhs wee repaid by accused on 18.12.2017 and 31.01.2018 in respect of the property transaction, accused got returned advance money. If at all, as said by the PW.1, since accused was repaid Rs.10 lakhs sincerely, he gave loan of Rs.2,50,000/- on 18.11.2017, there is no sequence in the say of PW.1. As per oral evidence of PW.1, the accused got cleared the property transaction amount of Rs.10 lakhs 18.12.2017 and 31.01.2018, hence, unless cleared the said amount, question of the complainant paid loan of Rs.2,50,000/- on 18.11.2017 prior to the alleged repayment of Rs.10 lakhs is also highly improbable and unbelievable and to make believe there is no acceptable evidence placed by the complainant. The Judgment 18 C.C.No.3275/2019 difference of dates made mentioned in the pleading, as to he alleged loan as well as alleged repayment of advance money pertaining to the sale transaction, it reveals that, as on the alleged date of loan on 18.11.2017, the accused not at all paid the advance amount of Rs.10 lakhs, hence, without clear the said Rs.10 lakhs, the complainant came forward to pay the huge amount of Rs.2,50,000/- without obtaining any security document, is cannot be acceptable and his evidence inspite of repose confidence, it creates strong doubtful circumstance, as to alleged lent of loan, in view of the arrears already due payable by the accused. Hence, the contradictory statement of the complainant, as to alleged lent of loan without security, in view of the accused sincerely cleared Rs.10 lakhs is not been proved by the complainant. Hence, it is one of the strong circumstances to disbelieve the version of PW.1, as to alleged lent of loan on 18.11.2017, hence, to make believe, he had hard cash of Rs.2,50,000/- and paid to the accused as on 18.11.2017 is not been proved by the complainant.
28. That apart, complainant has contended that, accused undertakes to repay the same within 5 months, and subsequently, as he not paid money, when he approached the accused for repayment of loan, accused gave cheque dated:11.04.2018. On Judgment 19 C.C.No.3275/2019 appraisal of the event stated supra by the complainant, if at all, taken in to consideration of alleged payment of loan on 18.11.2017, as he paid money over the period of 5 months, till 17.04.2018, the complainant should not demand for repayment. The said period, the complainant cannot have any voice to demand for repayment, as he paid the loan for the period of 5 months. If at all, after lapse of 5 months, if he approached the accused for repayment of the loan, issued on or after 17.04.2018. But the complainant in the cross-examination as re-produced above, has deposed that, in the month of January, 2018, accused gave cheque to him. Was it possible, when lent the loan for the period of 5 months, before lapse of 2 months, accused came forward to pay cheque for repayment of loan amount, itself created doubt. As to the alleged execution and issuance of questioned cheque, as pleaded by the complainant and the oral evidence of PW.1, which contradicts to each other. Hence, it also one of the strong circumstances to disbelieve the alleged loan transaction and issuance of questioned cheque by the accused.
29. That apart, the complainant has pleaded that, though accused gave cheque dated:11.04.2018 asked the complainant to present it during 1st week of June, 2018. If at all, it was an contention of the accused, definitely, by gave cheque Judgment 20 C.C.No.3275/2019 dated:11.04.2018, asked him to present it during June, 2018, no need to request, but by putting the date in the month of June, 2018, could have been issued the cheque. Therefore, earlier issuance of cheque and requested to present it in the month of June, 2018 also creates doubt, as to the genuine transaction put forth by the complainant. No doubt, as contended by the accused, whatever the advance amount took by him for Rs.10 lakhs in connection to the sale transaction were admittedly repaid by him and got closed the transaction. Therefore, in order to accused approach the complainant seeking for the said huge amount without obtaining any security document, the complainant alleged to be paid loan on 18.11.2017 is not been proved.
30. In the complaint, the complainant has pleaded, on the date of issuance of legal notice dated:16.07.2018 by R.P.A.D got served on accused. Though, there is improbable in taking such contention, the accused has not disputed the service legal notice, but while record 313 of Cr.P.C. statement, he got admitted. Therefore, in view of the complainant himself has failed to prove his case beyond the reasonable doubt to prove the guilt of the accused. The non-reply of legal notice is not have any sequence.
Judgment 21 C.C.No.3275/2019
31. When the very loan transaction is not been proved by the complainant, the question of alleged issuance of cheque by the accused to the complainant in respect of said loan transaction is also highly improbable. Mere because that, the complainant possessed questioned cheque for the reasons better known to him, though there is no existence of legally recoverable debt payable by the accused to the complainant, got presented the cheque for encashment and the same came to be dishonoured and got issued legal notice to the constitute an offence under Section 138 of Negotiable Instruments Act. The complainant, possessed the cheque pertaining to other transaction and by conceding those transaction put forth the present claim without any base, and whatever the contention, he taken in the present complaint, itself is nullified by contradictory evidence led by him. The complainant utterly failed to prove the amount covered under the cheque is not the existence of legally recoverable debt. Mere because of possessed the questioned cheque with the signature of the accused, itself is not a ground to presume that, in respect of the existence of legally recoverable debt, accused got issued the questioned cheque. The statutory presumption enumerated under Section 139 of Negotiable Instruments Act, is rebutted by the accused successfully. Though, it was reverse burden by virtue of Judgment 22 C.C.No.3275/2019 Section 139 of Negotiable Instruments Act as well as the complainant utterly failed to prove that, he had hard cash of Rs.2,50,000/- as alleged in the complaint and pass on to the accused and for its repayment, accused got issued the questioned cheque is not been proved. Therefore, the accused is entitled for benefit of doubt for acquittal.
32. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
At this stage, this court relies upon the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
"Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to Judgment 23 C.C.No.3275/2019 the complainant and the latter received if from the former".
33. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheque bares his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act - Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
34. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as Judgment 24 C.C.No.3275/2019 discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.2,50,000/- to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
35. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, he is not liable to pay Ex.P1 cheque amount of Rs.2,50,000/- and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and he is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken his defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.2,50,000/-. Hence, complainant has failed to Judgment 25 C.C.No.3275/2019 prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
36. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Ex.P1 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
37. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
Judgment 26 C.C.No.3275/2019
38. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.2,50,000/- legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his case beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
39. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence Judgment 27 C.C.No.3275/2019 punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 4th day of March - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Dilip Kumar List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Postal Acknowledgment card
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 28 C.C.No.3275/2019
Judgment pronounced in the open court vide
separate order.
*****
ORDER
Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence
punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.