Bangalore District Court
Sri. A. Prabhakar Naidu vs Sri. Nageshwar Rao on 31 July, 2021
C.C.No.19665/2018
1
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 31st day of July, 2021
Present: SRI.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.19665/2018
Complainant : Sri. A. Prabhakar Naidu,
S/o. Late Chinnaswamy Naidu,
R/at No.41, 2nd Floor,
Likith Layout,
Kalikare, B.G. Road,
Bengaluru - 560 083.
(Rep. by Balachandra Y. S., Advs.)
Vs
Accused : Sri. Nageshwar Rao,
S/o Late K Muniswamy Naidu,
Aged about 36 years,
R/at No.22, 6th Cross,
Annapoorneshwari Layout,
Near BDA Complex,
Annapoorneshwari Nagar,
Nagarbhavi, Bangalore-560091.
Also R/at No.65, 2nd Floor,
8th Cross, Road End,
Annapoorneshwari Layout,
Annapoorneshwari Nagar,
(Near Alladamara Bus Stop),
Nagarabhavi, Bangalore560091.
(Rep. by Sri. H. K. Honnegowda
Adv.,)
C.C.No.19665/2018
2
Case instituted : 28.05.2018
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Acquittal
Date of order : 31.07.2021
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, he and accused are known to each other and accused is in the business of construction of buildings and had entered into Joint Development Agreement with the land lord in respect of property bearing No.BDA site No.22 having B.B.M.P. khatha No.22/20/22 situated at Nagarabhavi II/VI Block Extension, Nagarabhavi, Bangalore, but the accused did not possess sufficient funds to complete the said project as agreed by him with respect to the above said property, therefore, the accused had approached him and requested to invest the amount in the said project by offering certain shares in the said project. It is further contended by the C.C.No.19665/2018 3 complainant that, by accepting the proposal of the accused he entered into an agreement with the accused dated 20.08.2015 on certain terms and conditions, as per the said agreement, the accused is liable to give 1/5th share or 10% share in the said project and under the said agreement, he has paid an amount of Rs.10,00,000/ and an additional amount of Rs.5,00,000/, in total has paid an amount of Rs.15,00,000/ to the accused. It is further contended by the complainant that, after completion of the said project, the complainant's share in the project was calculated and valued by the accused for an amount of Rs.23,00,000/, therefore the accused was liable to pay an amount of Rs.23,00,000/ as assured by him and out of Rs.23,00,000/ the accused has paid a total amount of Rs.20,00,000/ on different dates and has promised to pay the remaining amount of Rs.3,00,000/ in the month of December - 2017. It is further contended by the complainant that, the accused failed to repay the remaining amount within the agreed period, therefore he approached the accused on several occasions for the repayment of remaining amount, but the accused postponed the same on one or other reasons and on repeated requests made by him, the accused has issued a C.C.No.19665/2018 4 cheque for a sum of Rs.2,00,000/ towards the part payment of the balance amount in his favour i.e., cheque bearing No.218108, dated 22.02.2018 drawn on State Bank of India, Banashankari II Stage Branch, Bangalore - 34 and further assured that, he will repay the remaining balance of Rs.1,00,000/ within August - 2018 and he also assured that, the cheque amount will be realized as and when it is presented. It is further contended by the complainant that, he has presented the cheque through his bank i.e., State Bank of India, Chittor Branch, but the said cheque was returned with the bank shara "Insufficient Fund" dated 23.02.2018, thereafter when the complainant meets the accused, the accused expressed his financial constraints and his liability to maintain funds in his account and requested him to represent the said cheque on 20.03.2018, believing the words, he has represented the cheque bearing No.218108 through his banker i.e., Corporation Bank, Padmanabanagar Branch, Bangalore - 85, but again the cheque was returned with the bank shara "Insufficient Fund" on 21.03.2018. It is further contended by the complainant that, thereafter he got issued a legal notice to the accused calling upon him to pay the cheque amount of Rs.2 lakhs within 15 days from C.C.No.19665/2018 5 the date of receipt of the notice through RPAD, but the said notice was returned with the postal shara "Insufficient Address & In Complete Address", therefore the accused intentionally and knowingfully has not made proper and adequate arrangements to honour the cheque, thus accused has committed an offence punishable U/S 138 of Negotiable Instrument Act, accordingly the complainant has filed this present complaint against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavitinlieu of his sworn statement, in which, he has reiterated the averments of the complaint. In support of his evidence he has produced documentary evidence as Ex.P.1 to P.13 i.e. the Original Cheque dated: 22.02.2018 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memos as per Ex.P.2 and Ex.P.3, office copy of the Legal Notice as per Ex.P.4, the Postal Receipts as per Ex.P.5 and Ex.P.6, returned legal notices as per Ex.P.7 and Ex.P.8, RPAD Covers as per Ex.P.9 and Ex.P.10, Postal receipts as per Ex.P.11 and Ex.P.12, Original Memorandum of Agreement dated 20.08.2015 as per C.C.No.19665/2018 6 Ex.P.13 and signatures of the accused identified by the PW1 together are as per Ex.P.13(a) and signatures of the PW1 together are marked as Ex.P.13(b).
4. Primafacie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
5. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as he intended to set out his defence, then the case was posted for crossexamination of complainant and after cross examination of complainant, the complainant has also examined one witness by name Sri. N. Govindaraj as PW2 and closed his side.
6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. he has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence subsequently the Accused himself examined as DW.1 and has produced four certified C.C.No.19665/2018 7 copies of the registered sale deeds dated 03.10.2016, 16.02.2017, 23.11.2017 and 04.11.2017 which are marked as Ex.D.1 to Ex.D.4, True copy of the bank statement of account pertains to the accused issued by Andra Bank is at Ex.D.5, Gas transfer subscription voucher marked as Ex.D.6, Gas refill bill marked as Ex.D.7 and closed his side.
7. Heard by learned counsel for the complainant and the Accused and perused the materials on records.
8. On the basis of complaint, evidence of complainant and documents the following points that are arise for consideration are:
1. Whether the complainant proves that the accused has issued cheque bearing No.218108 dated:
22.02.2018 for Rs.2,00,000/ drawn on State Bank of India, Banashankari II Stage Branch, Bangalore to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 20.03.2018 and the complainant issued legal notice to the accused on 11.04.2018 and inspite of it the accused has not paid the cheque C.C.No.19665/2018 8 amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Negative Point No.2: As per final order for the following:
.
REASONS
10. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. C.C.No.19665/2018 9 Act presupposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
11. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec.118 and 139 of N.I.Act envisages C.C.No.19665/2018 10 certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and are rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
12. In the present case the complainant has examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire contents of the complaint. The complainant/PW.1 testified that, he and accused are known to each other and accused is in the business of construction of buildings and had entered into Joint Development Agreement with the land lord in respect of property bearing No.BDA site No.22 having B.B.M.P. khatha No.22/20/22 situated at Nagarabhavi II/VI Block Extension, Nagarabhavi, Bangalore, but the accused did not possess sufficient funds to complete the said project as C.C.No.19665/2018 11 agreed by him with respect to the above said property, therefore, the accused had approached him and requested to invest the amount in the said project by offering certain shares in the said project. The complainant/PW.1 testified that, by accepting the proposal of the accused he entered into an agreement with the accused dated 20.08.2015 on certain terms and conditions, as per the said agreement, the accused is liable to give 1/5th share or 10% share in the said project and under the said agreement, he has paid an amount of Rs.10,00,000/ and an additional amount of Rs.5,00,000/, in total has paid an amount of Rs.15,00,000/ to the accused. It is further contended by the complainant that, after completion of the said project, the complainant's share in the project was calculated and valued by the accused for an amount of Rs.23,00,000/, therefore the accused was liable to pay an amount of Rs.23,00,000/ as assured by him and out of Rs.23,00,000/ the accused has paid total amount of Rs.20,00,000/ on different dates and has promised to pay the remaining amount of Rs.3,00,000/ in the month of December - 2017. The complainant/PW.1 testified that, the accused failed to repay the remaining amount within the agreed period, therefore he C.C.No.19665/2018 12 approached the accused on several occasions for the repayment of remaining amount, but the accused postponed the same on one or other reasons and on repeated requests made by him, the accused has issued a cheque for a sum of Rs.2,00,000/ towards the part payment of the balance amount in his favour i.e., cheque bearing No.218108, dated 22.02.2018 drawn on State Bank of India, Banashankari II Stage Branch, Bangalore - 34 and further assured that, he will repay the remaining balance of Rs.1,00,000/ within August - 2018 and he also assured that, the cheque amount will be realized as and when it is presented. The complainant/PW.1 testified that, he has presented the cheque through his bank i.e., State Bank of India, Chittor Branch, but the said cheque was returned with the bank shara "Insufficient Fund"
dated 23.02.2018, thereafter when the complainant meets the accused, the accused expressed his financial constraints and his liability to maintain funds in his account and requested him to re present the said cheque on 20.03.2018, believing the words, he has represented the cheque bearing No.218108 through his banker i.e., Corporation Bank, Padmanabanagar Branch, Bangalore - 85, but again the cheque was returned with the bank shara C.C.No.19665/2018 13 "Insufficient Fund" on 21.03.2018. The complainant/PW.1 testified that, thereafter he got issued a legal notice to the accused calling upon him to pay the cheque amount of Rs.2 lakhs within 15 days from the date of receipt of the notice through RPAD, but the said notice was returned with the postal shara "Insufficient Address & In Complete Address", therefore the accused intentionally and knowingfully has not made proper and adequate arrangements to honour the cheque,
13. In support of his evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.13 i.e. the Original Cheque dated:22.02.2018 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memos as per Ex.P.2 and Ex.P.3, office copy of the Legal Notice as per Ex.P.4, the Postal Receipts as per Ex.P.5 and Ex.P.6, returned legal notices as per Ex.P.7 and Ex.P.8, RPAD Covers as per Ex.P.9 and Ex.P.10, Postal receipts as per Ex.P.11 and Ex.P.12, Original Memorandum of Agreement dated 20.08.2015 as per Ex.P.13 and signatures of the accused identified by the PW1 together are as per Ex.P.13(a) and signatures of the PW1 together are marked as Ex.P.13(b).
C.C.No.19665/2018 14
14. The accused has not disputed his signature on the cheque and cheque in question belongs to his account and presentation of the cheque in question and same was dishonoured for want of sufficient funds. It is settled law that, once the issuance of the cheque infavour of holder in due course is admitted by the drawer, presumption can be drawn about the existence of legally recoverable debt U/s.139 of N.I. Act, terms in favour of holder in due course. The Hon'ble Apex Court in Rangappa Vs. Mohan case reported in 2010(11) SCC 441, has held that, "issuance of the cheque would create a presumption with respect to legally enforceable debt in favour of the payee of the cheque", however, the said presumption is rebuttable. Hence in veiw of the above principles of law it can be held that, the presumptions are rebuttable presumptions and Accused can rebut the said presumptions either by relying the materials produced by the complainant or by producing cogent and convincible evidence on his/her behalf.
15. On careful perusal of the oral and documentary evidence produced by the complainant and accused, the accused has admitted certain facts C.C.No.19665/2018 15 in respect of the claim made by the complainant, but has denied the liability in question as claimed by the complainant. The accused has admitted that, he is in the business of construction of building and had taken up the project by entering into joint development agreement with the land lord in respect of property No.BDA Site No.22 having BBMP khatha No.22/20/22 situated at Nagarabhavi II/VI Block Extension, Nagarabhavi, Bangalore. It is also admitted by the accused that, he approached the complainant and requested to invest the amount in the said project by offering certain shares in the said project since he did not possess sufficient funds to complete the said project. It is also admitted by the accused that, he and complainant had entered into an agreement dated 20.08.2015 on certain conditions and as per the said agreement it was agreed by him that, he is liable to give 1/5th share or 10% share out of his 50% share in the said project. It is also admitted by the accused that, complainant has paid a sum of Rs.15 lakhs under the said agreement and same was accepted and acknowledged by him. But it is the specific defence of the accused that, after completion of project he has received an amount of Rs.1,98,00,000/ towards his share and out of the said share amount he has C.C.No.19665/2018 16 paid an amount of Rs.21,00,000/ towards the share of complainant i.e., by transferring the said amount in the name of the complainant and his wife and has no due to the complainant. It is also the defence of the accused that, he has not issued the cheque in question towards balance amount as claimed by the complainant. In the present case, it has to be examined as to whether the Accused has rebutted the presumption successfully or not, by examining oral and documentary evidence adduced by the both parties.
16. It is the specific claim of the complainant that, the accused approached him and requested the amount in construction project carried by him respect of the property bearing BDA Site No.22 having BBMP khatha No.22/20/22 situated at Nagarabhavi, II/VI Blcok Extension, Bangalore as he did not possessed sufficient funds to complete the said project and they have entered into an agreement dated 20.08.2015 on certain terms and conditions i.e., as per the agreement the accused agreed to give 1/5th share or 10% of share in the said project and he has paid an amount of Rs.15,00,000/ to the accused under the said agreement. It is also the specific claim of the complainant that, after completion of the said project his share in the said C.C.No.19665/2018 17 project was calculated and valued by the accused for sum of Rs.23 lakhs and accused is liable to pay the said amount of Rs.23 lakhs, out of the said amount the accused has paid Rs.20 lakhs on different dates and assured to pay the remaining balance amount of Rs.3 lakhs and thereafter on repeated requests, the accused towards part payment of the said balance amount has issued the cheque in question i.e., Ex.P.1 dated 22.02.2018 for sum of Rs.2 lakhs and assured to pay remaining balance amount of Rs.1 lakhs within August2018 and thereafter the said cheque has been presented for encashment through his banker, but it was returned dishonoured for the reason of Insufficient Fund on 23.02.2018. In support of the said claim, complainant has produced the original cheque issued by the accused which is at Ex.P.1 and memo issued by the concerned bank which is at Ex.P.2 and the original Memorandum of Agreement dated 20.08.2015 which is at Ex.P.13. On the other hand, the accused though he has admitted the receipt of Rs.15 lakhs from the complainant under the agreement dated 20.08.2015 i.e., as per Ex.P.13 towards investment in the project and admitted that, as per the said agreement he is liable to give 1/5th share or 10% share out of his 50% share in the said project, but has denied the claim C.C.No.19665/2018 18 made by the complainant that, after completion of the project the share of the complainant was calculated and valued for an amount of Rs.23 lakhs and out of the said amount has paid only Rs.20 lakhs and has assured to pay remaining balance of Rs.3 lakhs and towards part of the said balance amount has issued the cheque in question i.e., Ex.P.1 to the complainant.
17. In order to prove the claim made by the complainant i.e., to show that, after completion of the project work by the accused his share in the project was calculated and valued by the accused for sum of Rs.23 lakhs, has not produced any of documents, except the oral and self serving statement of the complainant, no documentary proof / evidence has been produced by him to prove his claim. It is also important here to refer that, the complainant in his legal notice i.e., Ex.P.7 nowhere mentioned about the total amount received by the accused towards the share of the accused in the said project and how the complainant is claiming his share of Rs.23 lakhs as against the accused, therefore without their being any details / documents of the total amount received by the accused in respect of his share in the project, the complainant cannot claim or project or restrict his C.C.No.19665/2018 19 share to an extent of Rs.23 lakhs. It is also important here to mention that, the complainant has claimed an amount of Rs.23 lakhs towards his share in the project out of the share of the accused as per the agreement i.e., Ex.P.13, if that is the share of the complainant i.e., 10% share out of the share of the accused in the project, the accused would have received an amount of Rs.2,30,00,000/, but in order to show that, the accused after completion of the project has received total amount of Rs.2,30,00,000/ towards his share in the said project, the complainant has not produced any documents, therefore the complainant has miserably failed to prove by producing documentary evidence that, after completion of the project, his share in the said project was calculated and valued by the accused for an amount of Rs.23 lakhs.
18. The complainant has examined one witness by name Sri. N. Govindaraju as PW2 who in his evidence deposed that, he is the witness to the transaction involved in this case and accused approached the complainant and requested to invest the amount in the project taken up by him in respect of Site property bearing BDA No.22 khata No.22/20/22 situated at Nagarabhavi under Joint Agreement Development entered with the land lord C.C.No.19665/2018 20 of the said site, accordingly the accused entered into an agreement with the complainant dated 20.08.2015 and as per the agreement, the accused was agreed to give 1/5th share or 10% share out of his share in the said project and complainant has paid an amount of Rs.15 lakhs to the accused. The PW2 has also deposed that, after completion of project the accused and complainant calculated and valued the share of the complainant to an amount of Rs.23 lakhs in his presence and accused paid an amount of Rs.20 lakhs to the complainant on different dates and thereafter on repeated request the complainant issued a cheque for Rs.2 lakhs towards repayment of the balance amount and also assured to repay the remaining balance amount of Rs.1 lakhs within August2018 and the complainant has presented the said cheque through his bank, but it was returned as "Insufficient Fund".
19. It is relevant here to mention that, on careful reading of the affidavit evidence filed by the PW2 it appears that, the PW2 has reiterated the entire averments of the complaint on his behalf. It is stated by PW2 that, he is the witness to the transaction involved in this case and also stated that, the complainant and accused entered into an agreement dated 20.08.2015 on certain terms and C.C.No.19665/2018 21 conditions and as per the said agreement the complainant has paid an amount of Rs.15 lakhs i.e., at the time of agreement complainant has paid Rs.7 lakhs through cheque and Rs.3 lakhs by way of cash and further the complainant paid an additional amount of Rs.5 lakhs paid on 20.03.2016, but whereas in his crossexamination he admits that, the complainant has not paid any amount to the accused in his presence at the time of agreement and after the agreement the complainant has not paid any amount to the accused in his presence, hence it goes to show that, the PW2 himself admitted that, no amount has been paid in his presence either at the time of agreement or after the agreement by the accused to the complainant, therefore his evidence is not trust worthy and supporting to the cliam of the complainant and cannot be acceptable one and it cannot be held that, he is the witness to the transaction involved in this case. It is also relevant here to mention that, after completion of the project he was called by the complainant and accused for sharing of profits, but he admits that he does not know the date on which he was called by the complainant and accused and on which date the complainant and accused have shared the profits and how much profit was gained and how many sale C.C.No.19665/2018 22 deeds have been executed by the accused to how many persons and how much share amount was received by the accused, hence, the admissions of the PW2 goes to show that, though he has supported the version of the complainant in his affidavit evidence, but in the crossexamination he admits that, he does not know the amount which was received by the accused towards his share and how much profits was gained by the accused and when the complainant and accused were shared the profits, in such circumstances the evidence of PW2 is not helpful for the complainant to prove his claim, on the contrary the admissions of the PW2 in his crossexamination corroborates the defence of the accused.
20. Therefore, from careful perusal of the oral and documentary evidence of the complainant makes it clear that, the complainant has not produced the documents to prove his claim that, after completion of the project in question by the accused, the accused and complainant have calculated and valued the share of the complainant to an amount of Rs.23 lakhs and out of the said amount, the accused has paid Rs.20 lakhs and accused assured to the complainant to repay the remaining balance amount of Rs.3 lakhs and C.C.No.19665/2018 23 thereafter has issued the cheque in question i.e., Ex.P.1 for sum of Rs.2 lakhs towards part of the balance amount.
21. It is important to note here that, in this case the accused has admitted his signature at Ex.P.1(a) i.e cheque in question and also admitted that, the cheque in question belongs to his account and also admitted that, the cheque in question was dishonoured for the reason of "Insufficient Funds" . Hence, it goes to show that, the complainant has complied mandatory requirements as required U/s.138 (a) to (c) of NI Act and an initial presumptions can be drawn in favour of the complainant U/s. 118(a) and 139 of NI Act, But the said presumptions are not conclussive and are rebuttable one and accused can rebut the said presumptions either by relying the materials produced by the complainant or by producing evidence on his behalf as held by Hon'ble Apex Court of India in several decisions mainly ie., Rangappa Vs. Mohan case reported in 2010 (11) SCC 441. Hence, in this case as it is already held in the above that, the complainant has miserably failed to prove that, the accused has issued Ex.P.1 i.e., cheque for Rs.2 lakhs towards part of balance amount out of Rs.3 lakhs. Apart from that, the accused in order to C.C.No.19665/2018 24 rebut the presumptions available to the complainant, himself examined as DW.1. The accused /DW.1 in his evidence deposed that, he know the complainant and at the time of project work he required sum funds and has borrowed an amount of Rs.2 lakhs from one Rajendra Naidu, at that time he had given a blank signed cheque without mentioning the date and name to him and after completion of the said project work he has repaid the said amount to Rajendra Naidu through the complainant, but the complainant retained the cheque which was given to the said Rajendra Naidu and has not handed over to him. The accused / DW1 further deposed that, the complainant is also having share i.e., 10% share in the project and has invested an amount of Rs.15 lakhs to the said project, after completion of project he has received an amount of Rs.1,98,00,000/ towards his share and out of the said share amount he has paid an amount of Rs.21,00,000/ to the complainant towards his share i.e., by transferring the said amount in the name of the complainant and his wife and has no due to the complainant. The accused / DW1 also deposed that, he has not received any notice or intimation from the complainant and at that time he was resided at No.65, 8th Cross, Binnimil Layout, C.C.No.19665/2018 25 Nagarabhavi. The accused has also stated that, Ex.P.1 cheque belongs to him, but he has not written the date and name in the cheque, but it was blank signed and handed over to one Rajendra Naidu and the complainant by misusing the said cheque has filed this false case against him. In support of oral evidence, the accused during the course of crossexamination of the complainant confronted four sale deeds which are marked as Ex.D.1 to Ex.D.4 and during his evidence has produced bank statement which is at Ex.D.5, Gas transfer subscription voucher and gas refilling bill which are at Ex.D.6 and Ex.D.7.
22. It is relevant here to mention that, though the learned counsel for the complainant has cross examined the DW1 in length, but nothing has been elciated to discard or discredit the evidence of the accused, In addition to that, the complainant himself in his crossexamination has admitted that, prior to the agreement between him and the accused as per the Ex.P.13, there was an agreement between the site owner and the accused as per Joint Development Agreement. The complainant has also admitted that, as per the Ex.P.13 there are four houses fallen to the accused towards his 50% share in the project and the accused has sold all four C.C.No.19665/2018 26 houses and has not produced the said documents. It is suggested to the complainant that, the accused has received an amount of Rs.1,99,65,000/ towards sale of the above said four houses, but the complainant has not denied the said suggestions. The complainant at page No.2 and 3 in para No.2 to 5 of his cross examination has clearly admitted that, as per Ex.D.1 the accused has sold the house property on 03.10.2016 to one Mallikarjuna G. S. and Shankunatala S. N. for sum of Rs.49,95,000/ under registered sale deed and as per Ex.D.2 the accused has sold the house property on 16.02.2017 to one Ramesh .R for sum of Rs.46,50,000/ under registered sale deed and as per Ex.D.3 the accused has sold the house property on 23.11.2017 to one Anil Kumar N. G. for sum of Rs.55,00,000/ under registered sale deed and also admitted that, as per Ex.D.4 the accused has sold the house property on 04.11.2017 to one B. Rathnam Naidu N. G. for sum of Rs.48,20,000/ under registered sale deed. Hence, the above admissions of the accused clearly goes to show that, the complainant has clearly admitted that, the accused has got four apartments (Houses) out of his 50% share in the project as per Joint Development Agreement and has sold all the four apartment / houses as per the registered sale deeds C.C.No.19665/2018 27 i.e., Ex.D.1 to Ex.D.4 produced by the accused for total sale consideration amount of Rs.1,99,65,000/ (Total sale consideration of Ex.D.1 to Ex.D.4) and a suggestion was made to the complainant at page No.2 that, the accused has got a total sale consideration amount of Rs.1,99,65,000/ out of sale of the four houses which were fallen to his 50% of the share in the project, the said suggestion was not denied by the complainant on the contrary he stated that, the accused has got total sale consideration amount of Rs.2,32,00,000/, but the complainant has not produced any documents to show that, the accused has got total sale consideration amount of Rs.2,32,00,000/, on the contrary the accused has produced documentary proof I.e, Ex.D.1 to Ex.D.4 certified copies of the registered sale deed in support of his defence and the same has been admitted by the complainant, in such circumstances it can be held that, the accused has proved that, he has got the total sale consideration amount of Rs.1,99,65,000/ out of sale of his 50% of share in the project.
23. It is also relevant here to mention that, the learned counsel for the complainant during the course of cross examination of the accused at page No.2 in para No.3 has suggested that, as per the C.C.No.19665/2018 28 Ex.P.13 the accused has got 50% of share in the project and out of the said 50% share he agreed to give 10% share out of his 50% share in the project and also suggested that, out of 8 houses, the accused has sold four houses and said suggestions were admitted by the accused, hence the very suggestion made by the complainant itself goes to show that, the complainant has admitted that, the accused has been allotted four houses out of his 50% of share in the project, as it is already held in the above that, the complainant himself admitted that, all the four houses have been sold by the accused as per Ex.D.1 to Ex.D.4 i.e., registered sale deeds and out of the four sale deeds has got total sale consideration amount of Rs.1,99,65,000/. It is also relevant here to mention that, the accused has admitted that, one penthouse was constructed by the accused on the top of the second floor of the building, but the accused clearly stated that, the said penthouse was constructed as per the agreement between him and the owner of the site and the rights in the said penthouse belongs to the owner of the site and him. It is suggested by the complainant to the accused that, the complainant has got 10% share in the penthouse since the accused has got 50% of right in the said penthouse C.C.No.19665/2018 29 and the 10% of share was calculated and valued for Rs.3 lakhs and the accused has agreed to pay 10% of the share out of four apartments i.e., calculated and valued for Rs.20 lakhs and Rs.3 lakhs towards share in penthouse and in total the accused has agreed to pay a sum of Rs.23 lakhs towards 10% share of the complainant, but the said suggestion was denied by the accused. It is relevant here to mention that, for the first time the complainant during the course of crossexamination that too after production of the documentary evidence by the accused has bifurcated his share i.e., 10% in the project and 10% of his share in the penthouse, hence it goes to show that, the complainant only after production of the documentary evidence tried to make out his claim by suggesting to the accused that, the accused has also agreed 10% of his share in penthouse which was calculated Rs.3 lakhs and same cannot be acceptable one. If really the claim of the complainant is restricted Rs.3 lakhs towards 10% share in the penthouse, definitely the complainant would have claimed the same in his legal notice, complaint and evidence, but has not disclosed said fact either in the legal notice, complaint or in his evidence. In such circumstances the deviation taken by the complainant towards his C.C.No.19665/2018 30 claim during the course of crossexamination of the accused without there being any claim in the legal notice, complaint and evidence cannot be acceptable one.
24. It is also relevant here to mention that, as already held in the above that, the complainant has clearly admitted that, there are four houses (apartments) fallen to the complainant towards 50% share in the project and all the four houses have been sold by the accused as per Ex.D.1 to Ex.D.4 registered sale deeds to different purchasers and the accused has received total sale consideration amount of Rs.1,99,65,000/ out of sale of four houses, this fact is admitted by the complainant. It is also relevant here to mention that, as per the recitals of Ex.P.13 MOU i.e., Clause No.1 of MOU the complainant offered to given 1/5th share or 10% of his share out of 50% share in the project to be constructed on the schedule property to the accused, hence as admitted by the complainant and accused, the complainant has got 1/5th share or 10% of his share out of 50% of the share of the accused in the project. It is also admitted by the complainant that, the accused has received total sale consideration amount of Rs.1,99,65,000/ out of 50% of his share in the project, therefore if 10% C.C.No.19665/2018 31 share of the complainant out of 50% share of the accused in the project is calculated it comes to about Rs.19,96,500/, but not Rs.23,00,000/ as claimed by the complainant in his legal notice, complaint and evidence.
25.It is also important to note here that, the complainant during the course of his cross examination at page No.3 in para No.6 has clearly admitted that, the accused has transferred an amount of Rs.20 lakhs to him and in the name of his wife i.e., Sujatha. The complainant has also admitted in page No.4 of his crossexamination that, as per his instructions the accused has paid Rs.7 lakhs on 28.11.2017 to his account and an amount of Rs.5 lakhs to the account of his wife. The witness i.e., PW2 examined on behalf of the complainant also admitted that, the accused has paid an amount of Rs.20 lakhs to the complainant. The accused during course of his crossexamination has clearly stated that, he has paid an amount of Rs.21 lakhs on different dates and on installments to the complainant out of 10% of complainant share by alienating the four house which were allotted to his 50% share in the project and has produced his bank statements as per Ex.D.5. The accused has also stated that, he has paid the said amount of Rs.21 C.C.No.19665/2018 32 lakhs in the name of complainant and his wife. It is important here to mention that, the complainant has suggested to the accused that, as per Ex.D.5 statement an amount of Rs.20 lakhs transferred to the complainant and his wife, but not Rs.21 lakhs, hence, the very suggestion of the complainant makes it clear that, the complainant has admitted that, the receipt of Rs.20 lakhs from the accused in his name and also in the name of his wife towards 10% of share out of 50% share of the accused in this project. In addition to that, on careful perusal of the Ex.D.5 makes it clear that, the accused has transferred various amounts in the name of complainant and his wife from his account i.e., an amount of Rs.4,00,000/ on 17.02.2017, an amount of Rs.7,00,000/ on 28.11.2017 and an amount of Rs.5,00,000/ on 18.02.2018 in the name of complainant and an amount of Rs.5,00,000/ on 28.11.2017 in the name of wife of the complainant i.e., Smt. Sujatha, in total an amount of Rs.21 lakhs amount has been paid by the accused to the complainant.
26. Hence, on careful considering the contents of the Ex.P.13 and documentary evidence produced by the accused i.e., Ex.D.1 to Ex.D.5 registered sale deeds and Ex.D.5 Statement of the account pertains C.C.No.19665/2018 33 to the account of the accused and the admitted facts by the complainant it can be held that, the accused has rebutted the presumptions available to the complainant not only from the materials produced by the complainant, but also by producing oral and documentary evidence. The complainant has miserably failed to prove that, after completion of the project by the accused his share in the said project was calculated and valued by the accused for an amount of Rs.23 lakhs and out of the said amount accused has prayed in total Rs20 lakhs and towards the balance amount of Rs.3 lakhs the cheque in question i.e., Ex.P.1 was issued towards part of the balance amount for Rs.2 lakhs and agreed to pay remaining balance amount of Rs.1 lakhs. On the other hand the accused has proved that, he has received an amount of Rs.1,99,65,000/ out of his 50% share in the project and as per Ex.P.13 the accused has to pay 10% of his share to the complainant i.e., Rs.19,96,500/ and also proved that, he has paid Rs.21 lakhs as admitted by the complainant and also proved by producing documentary evidence i.e., Ex.D.5 and there is no due to the complainant towards 10% of the share as claimed by the complainant in his complaint.
27. It is also important to note here that, the C.C.No.19665/2018 34 dispute in question that is according to the complainant the cheque in question was issued by the accused towards repayment of the balance amount of his share as provided under Memorandum of Understanding and document i.e Ex.P.13 towards discharge of his liability, on the other hand, the accused denied the contention of the complainant by contending that the cheque is not issued towards discharge of liability as alleged by the complainant. On careful considering the oral and documentary evidence of the complainant and accused makes it clear that, the dispute in question arising out of the terms and conditions mentioned in the Ex.P.13. Now the complainant is also claiming the cheque amount as per the terms and conditions mentioned in the MOU, therefore the terms and conditions enumerated in Ex.P.13 are taken into consideration it appears that, at page No.5 of MOU i.e Ex.P.13 in Clause No.12 it is clearly mentioned that, in the event of any disputes arise between the parties, the same shall be settled through arbitrator appointed by the second party with the consent of the first party. Hence when the dispute arises with regard to the matters relating to the MOU i.e Ex.P.13 the said dispute has to be resolved by appointing an Arbitrator under the provisions of the Arbitration C.C.No.19665/2018 35 and Conciliation Act 1996. Admittedly the transaction in question i.e. the dispute raised out of the terms and conditions mentioned in the MOU, hence the dispute in question is also touching to the matters relating to the MOU under such circumstances, the complainant instead of approaching the arbitrator for getting resolved the dispute with regard to alleged non payment of the dishonoured cheque amount has filed the present complaint under the provisions of Negotiable Instruments Act which is not maintainable in view of the Arbitration clause involved in MOU i.e Ex.P.13, since either of the parties to MOU cannot bypass the arbitration clause as they themselves agreed to approach an arbitrator to get resolve the disputes in respect of matters touching relating to the terms of the MOU. Therefore on this count also the complaint filed by the complainant is not maintainable as per Sec.138 of Negotiable Instruments Act.
28. It is also the defence of the accused that, the legal notice issued by the complainant was not served on him and also denied that, the address mentioned by the complainant in the legal notice, RPAD cover and postal receipt. In order to prove the service of the legal notice the complainant has produced copy of legal notice, postal receipt, C.C.No.19665/2018 36 returned notice, RPAD Covers with receipts which are marked as Ex.P.4 to Ex.P.12. On careful perusal of the averments of the complaint and evidence of the complainant and Ex.P.4 to Ex.P.12 it appears that, the legal notice issued by the complainant against the accused through RPAD was returned with postal shara "Insufficient Address & Incomplete Address". It is relevant here to mention that, the complainant during the course of his cross examination has clearly admitted that, the address of the accused mentioned in the legal notice and in Ex.P.13 are different one, but the complainant stated that, the accused has changed his address, hence it goes to show that, though the complainant has admitted that, the accused has changed his address, but has not issued the notice to the correct address of the accused as the legal notice sent to the accused was returned with endorsement of "Insufficient Address & Incomplete Address". It is also admitted by the complainant that, Annapurneshwari Nagar which was mentioned in the legal notice in respect of the address of the accused and Nagarabhavi are not one and the same and also admitted that, though the Annapurneshwari Layout and Nagarabhavi are different areas, but he has mentioned both areas are one and the same while referring the address of the C.C.No.19665/2018 37 accused. It is also admitted that, the accused is residing at Binnimil Layout, Nagarabhavi and he has seen the house of the accused, hence the above admissions of the complainant itself goes to show that, though the complainant had seen the house of the accused and aware of the address of the accused inspite of it he has mentioned the incomplete address of the accused and has sent the notice to the said incomplete address, accordingly the notice issued by the complainant was not served on the accused and it was returned with an endorsement of "Insufficient Address & Incomplete Address".
29. The accused in support of his defence has produced gas transfer subscription voucher and gas refilling bill which are marked as Ex.D.6 and Ex.D.7 and the complainant during the course of cross examination of the accused has not disputed the address of the accused reflected in Ex.D.6 and Ex.D.7, hence it goes to show that, as on 10.01.2018 the accused was residing at No.65, 2nd Floor, 2nd Stage, Binni Layout, Nagarabhavi BDA Complex, Bangalore and as on 07.02.2020 the accused was residing at No.798, 2nd Floor, 20th Main Road, 2nd Block, Jnanbharathi Layout, Bangalore. It is also seen from the address of the accused in the legal notice, RPAD cover it appears that, the complainant C.C.No.19665/2018 38 has issued legal notice dated 11.04.2018 to the incomplete address of the accused. In addition to that, the learned counsel for the complainant during the course of crossexamination of the accused has suggested that, the complainant requested him to furnish his address at that time the accused has given his address as Annapurneshwari Nagara and made the complainant to send the legal notice to his wrong address and the said suggestion was denied by the accused, but the very suggestion itself sufficient to hold that, the complainant has admitted that, he has sent legal notice to the wrong address of the accused. Hence, on careful perusal of the oral and documentary evidence produced by the complainant and in view of the reasons stated above and admitted facts by the complainant makes it clear that, the complainant has miserably failed to prove that, the legal notice caused by him was sent to the correct address of the accused and it was served on the accused. If really the legal notice was sent to the correct address of the accused and it was returned with false endorsement of "Insufficient Address & Incomplete Address", definitely the complainant would have proved the said fact by examining the concerned postal authorities, but no such efforts have been made by the complainant C.C.No.19665/2018 39 therefore the claim of the complainant that, the accused has intentionally avoided to receive the legal notice and he was having knowledge of issuance of the notice by him cannot be acceptable one. In this regard, it is relevant here to refer the decision of Hon'ble High Court of Punjab and Haryana reported in 2014 (III) DCR 156 in a case of Ajay Industries Vs. Gulshan Rai Malhothra., wherein the Hon'ble High Court held that, notice not sent on correct address i.e. if notice is not sent on correct address, no presumption of service can be drawn and complaint U/s.138 of N.I. Act is rightly rejected. In another decision of Hon'ble Apex court of India decided in Crl. Appeal No.711/2009 dated:
13.4.2009 in case of M.D.Thomas Vs. P.S.Jaleela and Ors. wherein the Hon'ble Apex Court has held that, "proviso to Sec.138 specifies the conditions which are required to be satisfied before a person can be convicted for an offence enumerated in the Sec - clause (b) of proviso to Sec.138 cost on the payee or the holder in due course of the cheque and in the said case the notice of demand was served upon the wife of the appellant and not the appellant, hence complainant had not complied with the C.C.No.19665/2018 40 requirement of giving of notice in terms of Sec.138(b) of the N.I. Act". In another decision of Hon'ble Apex Court of India, decided in Crl. Appeal No.887/1999 dated: 2.11.2004 in the case of V. Rajakumari Vs. T. Subbarama Naidu and ors., wherein also the Hon'ble Apex Court held that, "where the sendor has dispatched the notice by post with correct address written on it then it can be deemed to have been served on the service unless he proves that, it was not really and he was not responsible for such non service". Hence on careful reading of the principles of law laid down by the Hon'ble Apex Court of India and High Court of Punjab and Haryana in the above referred decisions makes it clear that, if a notice U/s.138b of N.I. Act is not served on the accused, under such circumstances, no presumption can be drawn and the complaint filed by the complainant is liable to be rejected and the Accused cannot be convicted and complaint is not maintainable failure on part of compliance of statutory requirement U/s.138(b) of N.I. Act. In the present case also as it is already held in the above that, the complainant has failed to prove that, the legal notice issued to the correct address of the accused and the said C.C.No.19665/2018 41 notice was served on him.
30. It is also the defence of the accused that, he has not issued the cheque in question i.e., Ex.P.1 in favour of the complainant, but the said cheque was handed over as blank signed cheque to one Rajendra Naidu from whom he has received an amount of Rs.2 lakhs and even after repayment of said amount of Rs.2 lakhs through the complainant to Rajendra Naidu, but the complainant has not handed over his blank signed cheque which was given by the said Rajendra Naidu to the complainant and though he has paid Rs.21 lakhs to the complainant out of his 10% share as agreed by him i.e., has paid Rs.1 lakhs excess to the complainant out of his 10% share and he requested for return of his Rs.1 lakh, the complainant by misusing his blank cheque has filed this complaint against him. As it is already held in the above, the complainant has miserably failed to prove that, accused has to pay an amount of Rs.3 lakhs out of 10% share in the project and in turn the accused issued the Ex.P.1 cheque for Rs.2 lakhs and agreed to pay balance amount of Rs.1 lakh. Apart from that, the complainant during the course of his cross examination has admitted that, he himself had written his name and date on the cheque, hence it C.C.No.19665/2018 42 goes to show that, the cheque in question has not been completely filled up by the accused and handed over to the complainant, on the contrary the complainant himself admitted that, he had written his name and date on the cheque that itself may leads to draw an adverse inference against the complainant that, a blank signed cheque was issued by the accused and same was filled in by the complainant as admitted by him in his cross examination. In addition to that, on careful perusal of the contents of the Ex.P.1 cheque, the bear perusal of the same one can say that, the writings of the name of the payee, amount written in the words, in the figure and date and signature on the cheque appears to be not written by the same handwrittings and as handwritings are not one and the same i.e., the style and strock of the writings are appears to be different in styles and strocks, therefore it appears that, the handwritings made in the Ex.P.1 cheque and admitted facts by the complainant corroborates the defence of the accused and failure to mention the said important facts may also leads to draw an adverse inference against the complainant that, the claim made by him in this case appears to be doubtful. In this regard, it is relevant here to refer the decisions of Hon'ble High Court of Karnataka C.C.No.19665/2018 43 reported in ILR 2014 KAR 6572 in a case of Sri.H.Manjunath vs. Sri.A.M. Basavaraju, wherein the Hon'ble High Court of Karnataka held that "NEGOTIABLE INSTRUMENTS ACT, 1881 section 138 offence under - Judgment of Acquittal - Appealed against -Absence of statement in the complaint as to when the amount was actually given to the accused Absence of material particulars of the transaction in the complaint except signature all other entries are in different handwriting different ink and undoubtedly made at different time Mentioning of merely the date of issue of cheque without any material particulars - HELD , Judgment of acquittal is justified As seen from the complaint there is no statement as to when the amount was actually given to the Accused. The complainant has merely mentioned the date of issuance of cheque without any material particulars of the transaction. The cheque in question undoubtedly is signed by the accused. The dispute raised is entries made in the cheque are not in his handwriting. - It is not the case of the complainant that cheque was issued in C.C.No.19665/2018 44 blank and filled up later with consent of the accused FURTHER HELD, perusal of cheque at Ex.P.1 makes it manifest that except signature all other entries are in different hand writing, different ink and undoubtedly made at different time. In this view it is difficult to accept the version of the complainant. The principles of law laid down by Hon'ble High Court of Karnataka in the above decision are aptly applicable to this case in hand, as in the present case also the complainant himself admitted that, he had written his name and date on the cheque in question i.e., Ex.P.1 without the consent of the accused, in such circumstances it can be held that, the complainant has miserably failed to prove his claim as contended by him in the complaint and evidence, on the other hand, the Accused has rebutted the presumptions available infavour of the complainant.
31. Therefore, on careful scrutiny of over all evidence of the complainant and Accused as it is already held and come to the conclusion that, the complainant has miserably failed to prove that, after completion of the project in question by the accused the accused and complainant have calculated and valued the share of the complainant for an amount C.C.No.19665/2018 45 of Rs.23 lakhs and out of the said amount, the accused has paid Rs.20 lakhs and accused assured to the complainant to repay the remaining balance amount of Rs.3 lakhs and thereafter has issued the cheque in question i.e., Ex.P.1 for sum of Rs.2 lakhs towards part of the balance amount in his favour and agreed to pay the remaining balance amount of Rs.1 lakh. No doubt, some discrepancies have been elicited by the complainant during the cross examination of Accused but there are no proof regarding the same, however when the complainant himself has failed to establish his case beyond all reasonable doubt, he cannot be permitted to find fault in the defence of the Accused. Hence the standard of proof is expected from side of the complainant is proof beyond all reasonable doubt and in the present case complainant has failed to prove his case beyond all reasonable doubt on the contrary the Accused has successfully rebutted the presumption available infavour of the complainant U/s.118 and 139 of N.I. Act by taking reasonable and probable defence, accordingly for the above said reasons this point is answered in the 'Negative'.
32. Point No.2: In the light of discussions made at above point and for the said reasons this point is answered in the negative and it is just and C.C.No.19665/2018 46 proper to pass the following : ORDER The complaint U/s.200 of Cr.P.C.
filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C.
the accused is acquitted for the offence punishable U/sec.138 of N.I.Act.
Personal bond executed by the Accused stands cancelled.
The cash security of Rs.2,000/= which was deposited by the Accused vide order dated 25.09.2018 is ordered to be refunded to him (if not lapsed or forfeited) after the expiry of the appeal period.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 31st day of July 2021).
.
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri. A. Prabhakar Naidu PW.2 : Sri. N. Govindaraj C.C.No.19665/2018 47
2. List of documents exhibited on behalf of the Complainant: Ex.P1 : Original Cheque Ex.P1(a) : Signature of the Accused Ex.P2 & 3 : Bank Memos Ex.P4 : Office copy of the Legal Notice Ex.P5 & 6 : Postal Receipts Ex.P7 & 8 : Returned Legal Notices Ex.P9 & 10 : RPAD Covers Ex.P11 & 12 : Postal Receipts Ex.P13 : Original Memorandum of Agreement Ex.P13(a) : Signature of the accused Ex.P13(b) : Signatures of the PW1
3. List of witness/s examined on behalf of the Accused: DW.1 : Sri. K. Nageshwar Rao
4. List of documents exhibited on behalf of the Accused: Ex.D1 to 4 : Registered sale deeds Ex.D5 : True copy of the bank statement of account Ex.D6 : Gas transfer subscription voucher Ex.D7 : Gas refilling bill (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
C.C.No.19665/2018 48 .
31.07.2021 case called, Both complainant
and counsel for the complainant
absent, accused and counsel for the
accused are present, Judgment
pronounced in the open court, vide
separate order.
ORDER
The complaint U/s.200 of
Cr.P.C. filed by the complainant
for the offence punishable
U/sec.138 of N.I.Act is hereby
dismissed. No costs.
Acting U/sec.255(1) of
Cr.P.C. the accused is acquitted
for the offence punishable
U/sec.138 of N.I.Act.
Personal bond executed by
the Accused stands cancelled.
The cash security of
Rs.2,000/= which was
deposited by the Accused vide
order dated 25.09.2018 is
C.C.No.19665/2018
49
ordered to be refunded to him (if
not lapsed or forfeited) after the
expiry of the appeal period.
XVI ACMM, B'luru.