Bangalore District Court
Sri. Kishore Y.S vs Sri. Ravi on 10 January, 2023
-KABC020112292019
IN THE COURT OF THE JUDGE COURT OF SMALL
CAUSES AND A.C.M.M, AT BENGALURU
DATED THIS THE 10th DAY OF JANUARY-2023
PRESENT:
SRI.SOMASHEKARA.A,B.A.,L, L.L.M.
SMALL CAUSES JUDGE & MACT
CC No.2468/2019
Complainant: Sri. Kishore Y.S.
Son of Srivappa,
Aged about 19 years,
R/at No.89, I Main, 3rd Cross,
Byraveshwara Nagara,
(Andanappa Layout),
Bagalagunte,
Bengaluru- 560 073.
(By Smt.Sheela N.K. - Adv.)
-Vs-
Accused: Sri. Ravi,
Aged about 40 years,
R/at No.48,
Santhrupthi Building,
2nd Cross, M.P. Layout,
Sapthagiri Engineering College
Main Road,
Judge Sign
2 CC. No.2468/2019
Judgment
Chikkasandra, Hessaraghatta
Main Road,
Bengaluru- 560090.
(By Sri. Narayana Murthy-
Adv)
JUDGMENT
The present complaint is filed by the complainant Under Section 200 of Cr.P.C. against the accused for the offence punishable U/Sec. 138 of N.I.Act.
2. The factual matrix of the complaint is summarized as under:
The accused is the friend of the complainant and the well known to the complainant. During the last week of May 2018 the accused had obtained hand loan of Rs.8,00,000/- from the complainant by way of cash to run the paying Guest with an assurance to repay the same within the period of 6 months. After completion of 6 months, on several repeated requests and Judge Sign 3 CC. No.2468/2019 Judgment demands, accused had issued cheque bearing No. 844665, dated 28.02.2019 for Rs.8,00,000/- drawn on Karnataka Bank Hesaraghatta Main Road, Bengaluru. On its presentation for encashment with the complainant bank, the same was got dishonoured for the reasons "Funds Insufficient" dated:01.03.2019. Thereafter, the complainant got issued legal notice on 01.04.2019 through RPAD. The notice issued to the accused was duly served on 04.04.2019. It is contended that the accused intentionally not maintained sufficient amount in his bank account to honour the cheque. On these allegations, present complaint is filed.
3. On filing of complaint, this Court has taken cognizance for the offence punishable U/Sec. 138 of N.I.Act, sworn statement of the complainant was recorded. My Predecessor being satisfied with the prima facie materials to proceed against the accused, Judge Sign 4 CC. No.2468/2019 Judgment summons was issued. After appearance the accused enlarged on bail and Plea was recorded as per Sec.251 of Cr.P.C. He pleaded not guilty and claims to be tried.
4. Thereafter, complainant in order to prove his case, he examined himself as PW-1 and got marked 5 documents as per ExP1 to P5. Thereafter, statement of accused u/Sec. 313 of Cr.P.C. was recorded. Inspite of giving sufficient opportunity accused has cross examined the complainant and but not adduced his defense evidence.
5. Heard the arguments. Perused the materials on record.
6. The following points are arise for my consideration:
1. Whether the complainant proves beyond reasonable doubt that the accused availed loan of Rs.8,00,000/- from the complainant and towards repayment of Judge Sign 5 CC. No.2468/2019 Judgment the said amount the accused has issued Ex.P1-cheque and on its presentation, the same was got bounced for the reasons "Funds Insufficient". inspite of legal notice the accused did not paid the cheque amount and thereby the accused is guilty for the offence punishable under Section U/Sec. 138 of N.I.Act?
2. What order?
7. My findings on the above points are as under:
Point No.1 : In the Negative;
Point No.2 : As per the final order;
for the following:
REASONS
8. Point No.1:- It is the core contention of the complainant that during last week of May 2018, the accused had borrowed hand loan of Rs.8,00,000/-by way of cash from the complainant to run the PG Guest House with assurance to repay the said loan within 6 months. After completion of the said period, on several repeated Judge Sign 6 CC. No.2468/2019 Judgment demands, towards discharge of hand loan availed by the accused he had issued Ex.P1/cheque in question Rs.8,00,000/-. On its presentation the same is got dishonoured for the reasons "Funds Insufficient". Inspite of issuance of notice, he has not repaid the cheque amount and as such the present complaint has been filed.
9. In order to bring home the guilt of the accused, the complainant herself examined as PW.1 and reiterated the contents of the complaint in his chief examination. In support of his oral evidence he has placed the documentary evidence at Ex.P1 to 5 documents.
10. Ex.P1 is the cheque in question, as could be seen from the said document, it appears that the complainant has presented the said cheque within the Judge Sign 7 CC. No.2468/2019 Judgment period of limitation from the date of its issuance. Ex.P2 is the endorsement issued by the bank by intimating that the cheque got dishonoured for the reasons "Funds Insufficient" in the accused account. Ex.P3 is the office copy of the legal notice, dtd.01.04.2019 issued to the accused in compliance with Section 138 of N.I.Act. Ex.P4 is the postal receipt and Ex.P5 is the Postal acknowledgment
11. Based on the oral and documentary evidence the learned counsel for the complainant vehemently argued that the complainant has complied with all the requirements of Section 138 of N.I.Act and thus he prayed for conviction of the accused.
12. As could be seen from the Order Sheet, it appears that on 30.11.2020 the complainant had filed application Under Sec.311 of Cr.P.C to reopen the case Judge Sign 8 CC. No.2468/2019 Judgment and recall the PW1 to lead further chief-examination and to produce additional documents and to examine one witness by name Mahindra Kumar and Ambarish. The said application was came to be allowed 05.12.2020 and thereafter, the matter was posted for further chief- examination of PW1. Inspite of granting several opportunities the complainant/PW1 neither present before the Court nor was made any attempt to examine his witnesses to prove the advancement of loan amount to the accused and as such on 19.02.2021 my Predecessor in Office was pleased to closed the further chief-examination of PW1 and posted the matter for cross-examination. Ever since as many as 23 adjournments have been granted to the PW1 with a direction to keep himself present before the Court, inspite of which he was not tendered for cross- examination and was not examined his witnesses.
Judge Sign 9 CC. No.2468/2019 Judgment Having no other alternative, on the basis of the available record, this Court will proceed to appreciate the evidence on record.
13. The accused has taken a specific defense that the accused and the father of complainant are the subscribers of the chit transaction run by one Gayathri, towards the financial transaction accused had issued cheque to the said Gayathri in the presence of father of the complainant. (The accused has placed photograph on record to show that he was handing over cheque to said Gayathri through father of the complainant. Unfortunately, the said document is not marked.) This Court has taken judicial notice on the said photographs, wherein the accused was hading over cheque to one Gayathri through father of complainant. Therefore, it appears that the said cheque was misused in this case through the present complainant.
Judge Sign 10 CC. No.2468/2019 Judgment
14. The first and foremost contention taken by the accused that the complainant failed to mention in the complaint about the date and month of availment of loan, issuance of the cheque is not narrated in the complaint. When the very factum of date of loan and delivery of the cheque in question by the accused to the complainant and receipt by the complainant from the accused itself is seriously disputed and as such it is just and necessary to look into the facts of the case on hand. In para No.1 of the complaint, the complainant has not stated when the accused had approached on what date and month, the said amount was paid. The relevant portion of cross-examination is reads thus - Kannada deposition " DgÉÆæUÉ ºÀtªÀ£ÀÄß AiÀiÁªÀvÀÄÛ J°è ºÉÃUÉ PÉÆnÖzÉÝ JAzÀÄ £ÉÆÃn¸ï, zÀÆgÀÄ ºÁUÀÆ ¥ÀæªÀiÁt ¥ÀvÀæzÀ°è ºÉý®è JAzÀgÉ Judge Sign 11 CC. No.2468/2019 Judgment ¸ÁQë ªÉÄà 2018 PÉÆ£ÉAiÀĪÁgÀzÀ°è PÉÆnÖzÉÝÃ£É JAzÀÄ ºÉýzÉÝÃ£É JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ, ¢£ÁAPÀ ºÉý®è."
In the absence of these material facts, the complaint is not maintainable. At this juncture, I would like to rely upon the decision reported in the year AIR 2019 Supreme Court on 1983 - Non mentioning of date of issuance of cheque by complainant as well as in his evidence, complainant not satisfactorily explaining contradiction in complaint vise visa his examination in chief and cross-examination.
14. Admittedly, as could be seen from the complaint averments and also as stated in his affidavit sworn to his evidence in examination-in chief, that the accused borrowed money from him and towards repayment he had issued cheque/Ex.P1 for a sum of Rs.8,00,000/-. It is pertinent to note that the complainant has not stated either in his complaint or Judge Sign 12 CC. No.2468/2019 Judgment Ex.P3 statutory notice issued to the accused as to on what date he lent the said amount to the accused. What all the complainant has stated in his complaint and also in the notice, is only that towards discharge of the loan accused has issued cheque/Ex.P1 for Rs.8,00,000/-. Thus, it is clear that the complainant has not given the exact date and month on which the accused borrowed the said amount from him. Besides this, the complainant has not produced any documents or oral evidence of any witnesses to substantiate his case.
15. Apart from this, it is very strange to say that the complainant who lend an amount of Rs.8,00,000/- to the accused, he doesnot know the name of accused. In this regard, a question was posed to PW1 to say about the full name of the accused but he failed to spell out the name of the accused. Further, a suggestion was Judge Sign 13 CC. No.2468/2019 Judgment posed to PW1 by indicating the name of accused as Ravi Kumar.A.T but the said suggestion was also denied by the PW1. From this, it can be presumed that the complainant donot know the true and correct name of the accused. This will also create doubt in the mind of this Court regarding acquaintance of the accused and complainant. The accused has placed copy of his Aadhaar Card to show his name as Ravi Kumar. A.T. The present complaint is filed against one Ravi but not against Ravi Kumar A.T. when the name and identification of accused is itself under doubt. In such circumstances, it can safely held that the complainant is not known to the accused person.
16. It is worth to note here that the complainant is aged about 19 years he was a student studying in II year B.E and as such the source of income of the complainant has been seriously disputed by the accused.
Judge Sign 14 CC. No.2468/2019 Judgment Therefor,e I have carefully scrutinised the cross- examination of PW1, wherein he categorically admitted that in the year 2017 he was joined for BE in BMS College, while he was studying he was supervising xerox and stationary business of his sister, the income arised out of the said business was taking by his sister. Under such circumstances, the financial capacity of the complainant is appears to be doubtful, the loan amount is Rs.8,00,000/- is huge amount, a student like the complainant will not able to mobilize the said huge amount during his student life. If at all, if the complainant had source of income certainly he would have placed sufficient materials before the Court to prove his financial capacity. On careful reading of the entire cross-examination of PW1, it clearly reveals that the complainant has not produced any documentary evidence for having possessed such a huge amount of Judge Sign 15 CC. No.2468/2019 Judgment Rs.8,00,000/- during his tender age of 19 years. Therefore, the very advancement of the loan amount by the complainant is under cloud.
17. Further, the learned counsel for the accused argued that on what date the complainant lent the said amount to the accused is not mentioned in the complaint.
18. At this juncture, I would like to take shelter of the decision reported in 2010 (3) AIR KAR R 207 (S. Thimmappa V. L. S. Prakash) in which it is held as follows:
"....(A) Negotiable Instrument Act (26 of 1881), S.139- Existence of debt - Not the subject matter of presumption U/Sec. 139 - Drawee of cheque has to prove existence of debt or liability.
Judge Sign 16 CC. No.2468/2019 Judgment (B) Negotiable Instrument Act (26 of 1881), Ss.118(a), (b), 139 - presumption under
- In complaint, it is merely stated that accused borrowed R.S.No.1,30,000/- as hand loan from complainant - Complaint does not state date on which complainant advanced said loan - Even in examination-in-chief,
-complainant has not spelled out on which loan was advanced...."
Admittedly, in the case on hand, the complainant has not spelt out any date and month when the accused has lent the amount. Therefore, the principle laid down in the above said decision is aptly applicable to the case on hand.
19. No doubt as per Section 118(a) of the Act, there is a rebuttable presumption and when such instrument is accepted, it shall be presumed that it was accepted for consideration. According to clause (b) of Sec.118, there Judge Sign 17 CC. No.2468/2019 Judgment is a presumption that every negotiable instrument bearing a date was made or drawn on such date.
20. The learned counsel for complainant submitted that the accused has not lead his evidence and as such his defense cannot be considered.
21. It is pertinent to note that, the accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials on record. Accused has a constitutional right to maintain silence. Standards of proof on the part of an accused and that of prosecution in a criminal case is different. A statutory presumption has an evidentiary value. The question as to whether the presumption stood rebutted or not, must, therefore, be determined keeping in view the other Judge Sign 18 CC. No.2468/2019 Judgment evidences on record. For the said purpose, stepping in to the witness box by the accused is not imperative.
22. No doubt as per Section 118(a) of the Act, there is a rebuttable presumption and when such instrument is accepted, it shall be presumed that it was accepted for consideration. According to clause (b) of Sec.118, there is a presumption that every negotiable instrument bearing a date was made or drawn on such date.
23. Reading of both clauses (a) & (b) of Section 118 together makes it clear that as per the presumption under these clauses, the consideration is supposed to have been received on the date of the cheque. If in a given case from the apparent averment or from the evidence of the drawee of the cheque it can be gathered that on the apparent date of the cheque no Judge Sign 19 CC. No.2468/2019 Judgment consideration was paid or in other words if according to the specific case of the drawee or holder in due course of a cheque, loan was taken on a particular day and for the discharge of the same, on a later date the loanee issued the cheque, the presumption U/sec.118(a) stand rebutted.
24. In the light of the above, from the very averments made in the complaint or from the specific case of the drawee of the cheque, or from other materials on record, it is clear that no consideration was paid on the purported date of the cheque, it would be proper on the part of the Court to hold that the presumption U/sec.118(a) of the Act has stood rebutted.
25. In support of his arguments that the existence of legally enforceable debt is not a matter of presumption U/sec.138 of Negotiable Instrument Act.
Judge Sign 20 CC. No.2468/2019 Judgment The accused counsel has relayed reported in ILR 2008 KAR 4629 (Shivamurty Vs. Amrutraj) in which it is held that it is only after satisfying that complainant has proved the existence of legally recoverable debt or liability, the court could proceed to draw presumption U/sec. 139 of Negotiable Instrument Act.
26. Considering all these aspects to case and perusal of Evidence let on behalf of the complaint does not depict that accused is liable to pay Rs.8,00,000/- to the Complainant. The documents produced by the Complainant do not disclose the existence of legally recoverable debt, which is prerequisite condition for prosecuting the case U/Sec.138 of Negotiable Instrument Act. Presumption U/Sec.139 and 118(a) of Negotiable Instrument Act cannot be extended to presume that there exist legally enforceable debt. More Judge Sign 21 CC. No.2468/2019 Judgment so presumptions they themselves are not Evidence. Hence, viewing from any angle the Complainant has filed to establish that she is entitled for interest. It is also trite that mere issuance of cheque without corresponding legally recoverable interest is not an offence. In the instant case also Complainant is not established the existence of interest on cheque amount. Under these circumstances the imperative conclusion that the accused is not committed an offence as alleged by the Complainant. This will entitles in acquittal of the accused. Therefore, I answer Point No.1 in the Negative.
27. POINT No.2:- In the result of my findings on point No.1 , I proceed to pass the following:-
ORDER The accused is acquitted U/s.255(1) of Cr.P.C for the offence punishable U/s.138 of Negotiable Instrument Act.
Judge Sign 22 CC. No.2468/2019 Judgment His bail bond and surety bond shall stand cancelled.
(Dictated to the stenographer on computer, corrected and then pronounced by me in the open court on this the 10th day of January, 2023.) (Somashekara A.) Judge, Court of Small Causes & ACMM Bengaluru.
ANNEXURE List of Witnesses examined on behalf of complainant:
PW1 Sri. Kishore Y.S. List of Documents marked on behalf of complainant:
Ex.P1 Cheque- Ex.P1(a) Signature of accused Ex.P 2 Bank endorsement Ex.P3 Notice Ex.P4 Postal receipt Ex.P5 Postal acknowledgment
List of Witnesses examined on behalf of accused:
NIL Judge Sign 23 CC. No.2468/2019 Judgment List of documents marked on behalf of accused:
NIL Judge, Court of Small Causes & ACMM, Bengaluru.
Judge Sign