Bangalore District Court
S/O.Late.Mohanalal Sharma vs Is Acquitted on 14 September, 2016
1 CC.NO.13671/2014
IN THE COURT OF THE XV ADDL CHIEF
METROPOLITAN MAGISTRATE: BANGALORE CITY.
Dated this the 9th day of September 2016.
Present: Sri.V.S.Pandit,B.A, L L B
XV Addl.C.M.M. : Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.13671/2014
2.Name of the Rajendra Kumar Sharma,
Complainant: S/o.late.Mohanalal Sharma,
46 years, R/at No.13/1, 1st
Main, 1st Cross, Valmiki
Nagar, Bangalore-560 026.
3.Name of the accused: Bherumal Patel,
S/o.late Udaram, 46 years,
R/at No.90/33, 4th Main,
Vittal Nagar West, Kastoor
Ba Nagar, Bangalore-560
026.
4.The offence U/s.138 of Negotiable
complained of : Instruments Act.
5.Plea of the accused : Pleaded not guilty.
6.Final Order: Acting U/s.255(1) Cr.P.C.,
Accused is Acquitted.
7.Date of such order : 9th day of September 2016.
for the following:
2 CC.NO.13671/2014
1. The accused has been prosecuted by the
complainant for the offence punishable U/s.138 of
Negotiable Instrument Act - 1881 (hereinafter referred as NI
Act for brevity)
2. Case of the complainant in brief are as under-
a. Complainant is acquainted with the accused. In
the month of February 2011, accused approached the
complainant for financial assistance for the purpose of
business. Accordingly, accused had borrowed a sum of
Rs.2,50,000/- and assured to repay the amount within
three months. In this aspect, accused has executed an on
demand promissory note and also issued post dated cheque
for a sum of Rs.2,50,000/-, drawn on Vijaya Bank, Mysore
Road branch, Bangalore. The said cheque was dated
17/12/2013. Accordingly, the said cheque was presented
through Union Bank of India, Avenue Road branch,
Bangalore. The said cheque was returned with an
endorsement 'PAYMENT STOPPED BY THE DRAWER'.
b. It is further case of the complainant that on
4.1.2014, legal notice was issued demanding repayment of
the amount. The said notice is duly served on the accused
on 23/1/014. Accused instead of making payment, has
3 CC.NO.13671/2014
issued false and evasive reply. Therefore, complainant is
constrained to file the complaint.
3. After taking cognizance, issued summons to the
accused. In response to the summons, accused appeared
and was enlarged on bail. Plea for the offence was read over
and explained to the accused. Accused pleaded not guilty
and pleads his innocence.
4. To sustain the charge leveled against the accused,
the complainant examined himself as PW.1 and got
marked the documents at Ex.P.1 to Ex.P.10 on behalf of
the complainant.
5. After conclusion of the evidence of the
complainant, statement of the accused U/s.313 Cr.P.C.,
was recorded. Accused denied the evidence. Accused
examined herself as DW.1 and got marked document at
Ex.D.1 on behalf of defence.
6. Heard both sides.
7. The points that arise for my consideration are
as under:-
1. Whether the complainant has proved that
cheque was issued by the accused for
discharge of legally enforceable debt, the
same were returned unpaid for the reason
'Payment stopped by the Drawer' and
4 CC.NO.13671/2014
notice was not complied. Hence accused
committed an offence under Sec.138 of N.I.
Act ?
2. What Order ?
8. My findings on the above points are as follows:
Point No.1 : In the Negative,
Point No.2 : As per final Order, for the following;
REASONS
9. Point No.1 - It is the case of the complainant
that a sum of Rs.2,50,000/- was paid to the accused for
the purpose of business. Accused issued post dated
cheque and also executed an on demand promissory note.
When the cheque was presented at the instant of the
accused, it was returned with an endorsement 'PAYMENT
STOPPED BY THE DRAWER'. Despite service of notice,
accused did not make the payment. On the contrary,
issued false and evasive reply.
10. It is the case of the accused that he had no
monetary transaction whatsoever with the complainant.
The complainant has filed false case before the learned
XXI ACMM, Bangalore, for a sum of Rs.4,50,000/-. In the
said case, accused was acquitted. It is categorically
denied with regard to the borrowing of loan to the extent of
5 CC.NO.13671/2014
Rs.2,50,000/- and issuance of the cheque. The cheque of
the instant litigation is the previous serial number cheque
pertains to the case filed by the complainant before the
XXI ACMM Court.
11. It is the specific case of the accused that he did
not executed an on demand promissory note or cheque in
favour of the complainant. The said documents have been
given in favour of Dhanubai. It is further specific case
that in the year 2011, the accused borrowed a sum of Rs.2
lakhs and for the security purpose, an on demand
promissory note and cheque was issued. The complainant
and Dhanubai were friends. Therefore, the Dhanubai
handed over cheque to the complainant and both of them
in collusion with each other, have filed false case. The
proper reply to the notice was issued by the complainant.
Apart from that, police complaint is also lodged against the
complainant for misusing the cheque.
12. The learned counsel for the complainant at the
out set has submitted that the signature and drawing of
the cheque from the account of the accused is not denied.
Apart from that, the accused has also executed an on
demand promissory note as per Ex.P.1, acknowledgement
6 CC.NO.13671/2014
for receipt of Rs.2,50,000/-. Though, accused stated in
his evidence that he is not acquainted with the
complainant but in the cross-examination, it has been
admitted by the accused that he is doing business of cloth
in the shop pertains to the relative of the complainant. It
is also admitted by the accused in his cross-examination
that when he commenced the business, he had shortage of
requisite funds. These are the aspects, which can be
taken into consideration to appreciate the case of the
complainant. It is also contended that the witness
Dhanubai, according to the accused, whom he had
entrusted the cheque in question has not been examined
before the Court. Further, there is no records to show
that a sum of Rs.2 lakhs was borrowed from Dhanubai.
No records to show that the amount was refunded.
Inaction on the part of the accused to procure his cheque
even after payment, casts serious doubt with regard to the
defence set up by the accused. Merely because, as per
Ex.D.2, judgment rendered by the XXI Court, in CC
NO.6466/2012 itself is not a sole ground to acquit the
accused in this case also.
7 CC.NO.13671/2014
13. The accused has questioned financial capacity
of the complainant. But as per Ex.P.8, income tax returns
for the year 2014-15, and as per Ex.P.9 i.e. Statement of
affairs as on 31.3.2014, discloses with regard to the
financial status of the complainant. There is nothing
elicited in the cross-examination of the complainant to
discard the consistent evidence coupled with the
documentary evidence. The cheque in question is
admittedly returned with remarks 'PAYMENT STOPPED BY
THE DRAWER'. If really, cheque in question was issued in
favour of Dhanubai, if the amount is refunded according to
the version of the accused, he could have intimated the
bank to withhold the cheque. No attempt whatsoever is
made by he accused, under such circumstances, the
leaned counsel for the complainant sought for conviction.
14. As against these arguments, the learned
counsel for the accused has submitted that no records to
show that the complainant is capable of advancing huge
amount of Rs.2,50,000/-. Further, as per Ex.D.2, the
Hon'ble XXI ACMM Court, Bangalore, had acquitted the
accused in respect of next serial number of the disputed
cheque pertains to the instant litigation. No records to
8 CC.NO.13671/2014
show that a sum of Rs.2,50,000/- was in fact paid to the
accused. Apart from that, the complainant during the
course of cross-examination has admitted that at the time
of purchasing house, he had borrowed a sum of
Rs.8,80,000/- from Union Bank. Apart from that, the
complainant also admitted in his cross-examination that
in the year alleged advancement of the loan to the
accused at that time, complainant himself is doomed in
loan. In Ex.P.9 i.e. income tax returns, there is no
mention with regard to the loan to be recovered from the
accused. No any date mentioned with regard to the
advancement of the loan. The complainant himself has
admitted that he has not produced any records to
substantiate the source of income. PW.2 the witness
examined who is a scribe according to the complainant,
signed Ex.P.1, has given clear go-bye to the statement of
the complainant. Apart from that, the complainant has
admitted that there is a difference in the signature-
compared to the other writings made in the Ex.P.1. The
scribe is not examined and none had signed Ex.P.1 i.e. on
demand promissory note as a scribe. For all these
9 CC.NO.13671/2014
reasons, the learned counsel for the accused sought for
acquittal.
15. It is not in dispute with regard to the
signature and drawing of the cheque from the account of
the accused. Therefore, initial presumption has to be
drawn that cheque in question was issued for discharge of
liability. However, the said presumption is rebuttable in
nature and it is for the accused to rebut the presumption
by placing direct or circumstantial evidence. The onus is
that of 'Preponderance of Probabilities'. Accused need not
put forth his defence beyond all reasonable doubt. When
once the accused is able to raise probable defence, it is for
the complainant to prove that cheque in question is issued
for discharge of liability. What are the material placed on
record by the accused to rebut the presumption is to be
seen.
16. It is not in dispute with regard to the prosecution
by the complainant against the accused in
CC.NO.6466/2012. It is further not in dispute that in the
said proceedings, accused was acquitted as per Judgment
dated 7.2.2015, which is produced by the accused as per
Ex.D.2. Since, Ex.D.2 is not denied and the instant
10 CC.NO.13671/2014
alleged transaction and the transaction averred in Ex.D.2
are almost identical in nature. Therefore, the said Ex.D.2
judgment has been taken into consideration to appreciate
the case propounded by both the parties.
In the instant litigation, there is an allegation of
Rs.2,50,000/- in the month of February 2011. It is only
stated in the complaint that in the month of February
2011, accused approached the complainant seeking
financial help for a sum of Rs.2,50,000/-. However, no
specific date has been mentioned with regard to the exact
advancement of the loan. Therefore, in the absence of
that, it has to be inferred that according to the
complainant, alleged loan was advanced in the month of
February 2011. In Ex.D.2 - Judgment dated 7.2.2015,
there is an averment of payment to the extent of
Rs.4,50,000/- in the month of April 2011. Therefore,
there is a gap of two months of the alleged advancement
of the loan in the instant case and in the case at Ex.D.2.
In the instant case, it is contended that accused has
issued post dated cheque dated 17.12.2013, for a sum of
Rs.2,50,000/-. Again, at para no.4 of the complaint, it is
stated that accused issued a cheque on 17.12.2013, when
11 CC.NO.13671/2014
the complainant insisted for repayment of the amount.
Therefore, the complainant at one breadth in pare no.3 of
the complaint, has stated that post dated cheque for a
sum of Rs.2,50,000/- dated 17.12.2013 was issued. At
another breadth has stated that on demand, cheque for a
sum of Rs.2,50,000/- on 17.12.2013 was issued.
Therefore, complainant is not sure that whether post-
dated cheque was issued or on demand, cheque dated
17.12.2013 was issued.
17. As it could be seen that in Ex.D.2, there is an
allegation of issuance of the cheque on 2.11.2015. In the
instant case, there is an allegation of issuance of the
cheque on 17.12.2013. If the alleged both transaction is
compared, in the month of February 2011 and April 2011,
according to the complainant, he had paid a sum of Rs.7
lakhs to the accused. If the sequence of issuance of the
cheque is concerned in Ex.D.2 after the lapse of nearly six
months, alleged cheque was issued for a sum of
Rs.4,50,000/- and in the instant case, the alleged cheque
was issued after the lapse of nearly two years nine
months. Admittedly, no security documents have been
obtained from the accused. No any interest was charged
12 CC.NO.13671/2014
for a huge sum of Rs.2,50,000/-. Under such
circumstances, the allegation of issuance of cheque after
the lapse of nearly three years by the accused is casts
serious doubt with regard to the transaction. It is to be
noticed at this juncture itself that the complainant admits
in his cross-examination that accused is well versed with
English language. It is come in the evidence of the
complainant as well as on bare perusal of the impugned
cheque as per Ex.P.2, it can be easily stated here that the
signature is made with black ink pen, whereas other
contents have been written in blue ink pen. Under such
circumstances, by this glaring difference in the
handwriting, made this Court to note that on the date of
issuance of the cheque, it was empty and not filled up by
the accused. No doubt, it is true that our own Hon'ble
High Court, in the case of -"2006 (5) AIR Kar R.171 -
Smt.Umaswamy -Vs- K.N.Ramanath" has held that
'Merely because it is issued as security, is no ground
to exonerate the penal liability U/s.138". Apart from
that, U/s.20 of the N.I.Act, the writings made in the
contents of the cheque hardly makes any difference to
attract the penal provision of Sec.138 of NI Act. But in the
13 CC.NO.13671/2014
instant case, it is not the case of the complainant that
blank signed cheque was issued and he was authorized to
fill up the cheque. Further, absolutely, there is no records
produced by the complainant to show that a sum of
Rs.2,50,000/- was in fact paid to the accused and in token
thereof, blank cheque was issued authorizing the
complainant to fill up the cheque. Under such
circumstances, this is one of the ground to view the case
of the complainant suspiciously.
18. Admittedly, the cheque involved in Ex.D.2 is the
next serial number cheque involved in the instant
litigation for a sum of Rs.4,50,000/- as averred in Ex.D.2,
the accused had accepted that cheque issued in the
month of November 2011. Whereas, in the instant
litigation, the complainant had accepted the cheque which
is valid only after lapse of nearly three years. This aspect
also made this Court to view the case of the complainant
suspiciously. No person would part huge amount for
nearly three years without charging any interest, without
procuring security documents and no guarantor, all these
aspects are not convincingly explained by the
complainant.
14 CC.NO.13671/2014
19. So-far as financial capacity of the complainant is
concerned, he has to come up with all particulars to
explain how he had arranged huge amount of Rs.7 lakhs
within a span of two months in the year 2011. In Ex.D.2,
there is an allegation of parting of amount to the extent of
Rs.4,50,000/- in April 2011 and in this case, averment
that a sum of Rs.2,50,000/- is parted in the month of
February 2011. Therefore, in the month of February and
April 2011, complainant must possess a sum of Rs.7 lakhs
and he should come out explaining the source of income
generated to pay a huge amount of Rs.7 lakhs. The
financial capacity of the complainant is one of the criteria
to arrive at a conclusion that there was a transaction
between the complainant and the accused. Apart from
that, the source of income is one of the condition
precedent to invoke the provisions U/s.118 and 139 of NI
Act. The Hon'ble Supreme Court in the case of
"K.Subramani -Vs- K.Damodara Naidu- (2015) 1 SCC
99" has held that "Legally recoverable debt not proved
as complainant could not prove source of income from
which alleged loan was made to accused-Presumption
in favour of holder of cheque, hence, held, stood
15 CC.NO.13671/2014
rebutted-Acquittal restored". In "- John K.Abraharm
-Vs- Simon C.Abraham - LAWS (SC)-2013-12-4" in this
case the Hon'ble Supreme Court has held that -
"The respondent was not even aware of the
date when substantial amount of Rs.1,50,000/--
was advanced by him to the appellant, that he
was not sure as to who wrote the cheque, that
he was not even aware when exactly and where
exactly the transaction took place for which
the cheque came o be issued by the appellant.
Apart from the said serious lacuna in the
evidence of the complainant, he further
admitted as PW.1 by stating once in the course
of the cross-examination that the cheque was
in the handwriting of the accused and the very
next moment taking a diametrically opposite
stand that it is not in the handwriting of the
accused and that it was written by the
complainant himself, by further reiterating
that the amount in words was written by him".
Therefore, in view of the Judgment of the Hon'ble Apex
Court, it is incumbent on the part of the complainant to
prove his financial position so as to arrive at a conclusion
that complainant is capable of advancing huge amount of
Rs.7 lakhs to the accused. The complainant did not state
anything about his financial position in the complaint.
But during the course of cross-examination, it is stated by
16 CC.NO.13671/2014
the complainant that by the profession of astrology, he
had saved the money. Absolutely, there is no records to
sustain the contention of the complainant. The
complainant has produced income tax returns which is at
Ex.P.8 for the assessment year 2014-15 and the gross
total income was disclosed as Rs.3,25,100/-. What is
relevant to note is in the instant case, we are concerned
about source of income of the complainant in the year
2011. Therefore, Ex.P.8 is submitted in the year 2014-15
that too income was disclosed to the extent of
Rs.3,25,100/- is of no avail to the case of the complainant.
What exactly income of the complainant in the year 2011
is nowhere stated and produced any material documents.
It is significant note that Ex.P.9 was produced by the
complainant to establish his contention that a sum of
Rs.7 lakhs is liable to be recovered from the accused. This
Ex.P.9 is produced subsequently. This Ex.P.9 is dated
29.5.2015. Whether this Ex.P.9 is submitted to the
income tax department or not is not made clear. Apart
from that, with regard to the financial position of the
complainant, defence had been raised in
CC.NO.6466/2012 and in that case, to prove the financial
17 CC.NO.13671/2014
position, Ex.P.9 was not produced. Under such
circumstances, Ex.P.9 is nowhere helpful to the case of the
complainant with regard to source of income as well as
submission of the same to the income tax department.
20. It is the submission of the learned counsel for
the complainant that it is not just a case of issuing
cheque, but accused acknowledged his liability to pay a
sum of Rs.2,50,000/- and executed an on demand
promissory note. It is also submitted that PW.2 is one of
the attesting witness to the Ex.P.1, has categorically stated
with regard to the due execution of an on demand
promissory note. There is nothing elicited in the cross-
examination of PW.2 to discard his evidence. On careful
scrutiny of Ex.P.1 i.e. On demand promissory note, it is
executed on 15.2.2011. What is relevant to note is, it is
the specific defence of the accused that blank an on
demand promissory note was given to the Dhanubai for
security. The execution of Ex.P.1 on 15.2.2011, is
nowhere stated in the complaint. Apart from that, as
rightly submitted by the learned counsel for the accused,
no initial is being made by the person who had written an
on demand promissory note. Apart from that, PW.2 is one
18 CC.NO.13671/2014
of the attesting witness to Ex.P.1, has admitted in his
cross-examination that he do not know anything about the
affidavit submitted by way of evidence. Further, pleaded
ignorance with regard to the monetary transaction took
place between the complainant and the accused.
Particularly pleaded ignorance with regard to the date and
year in which the monetary transaction had taken place.
PW.2 has also admitted that he is the neighborer of the
complainant and he was present through out at the time
of the cross-examination of the complainant in the open
Court. Further, stated that the complainant is the close
friend of PW.2. The complainant had requested the PW.2
to depose on his behalf. Apart from that, it is also stated
that at the instance of the complainant, he is deposing.
Further, it is relevant to note that PW.2 has admitted in
his cross-examination that on the date of advancement of
the loan, cheque has been obtained. If, the evidence of
PW.2 is taken into consideration, in my opinion, due
execution of an on demand promissory note is not at all
satisfactorily and convincingly proved by the complainant.
This PW.2 appears to be interested in the welfare of the
complainant. What is significant to note is that PW.2 has
19 CC.NO.13671/2014
completely expressed with regard to the date and year on
which the monetary transaction had taken place. When
the accused had taken specific defence that blank an on
demand promissory note was executed and given to
Dhanubai, under such circumstances, it is on the part of
the complainant to prove that an on demand promissory
note was written at the instance of the accused. Most
importantly, the role of the scribe is absent in the
document. Therefore, it supports the contention of the
accused that blank an on demand promissory note was
issued. Further, it is pertinent to note that if the cheque
had been obtained by the complainant on the date of
alleged advancement of the loan i.e. for the year 2011,
what made him to wait for nearly three years for
presentation of the cheque. Under such circumstance, in
my opinion, evidence of the PW.2 is not going to help the
case of the complainant. Therefore, the decision relied
upon by the learned counsel for the complainant with
regard to an on demand promissory note and its
worthiness reported in the case of "Suresh Chandra
Goyal -Vs- Amit Singhal rendered by the Delhi High
Court in Crl.L.P.No.706/2014, Don Aywngia -Vs- The
20 CC.NO.13671/2014
State Assam and another and M.Kokila -vs-
A.Dhanalakshmi - 2012(2) DCR 494, rendered by the
Hon'ble Madras High Court, is not applicable to the facts
of the present case.
21. No doubt, it is true that there is no material
produced by the accused to show that a sum of Rs.2 lakhs
was borrowed by Dhanubai and it was repaid. Apart from
that, it is also true that accused did not make any attempt
to procure his cheque if really issued for security purpose.
Further, the accused did not intimate the bank to withhold
the cheque. But, even in the absence of these, accused is
succeeding in rebutting the presumption since accused
need not entirely depend upon his defence set up by
himself, he can rely upon by the material placed on record
by the complainant also. At the cost of repetition, during
the discussion made in the previous paragraphs, since
there is no material to sustain the contention of
complainant possessed a sum of Rs.7 lakhs, no material
to show that the said sum was in fact paid to the accused.
At one breadth, the complainant says that post dated
cheque was issued and at another breadth, he says that
cheque in question was issued on 17.12.2013. Apart from
21 CC.NO.13671/2014
that, the complainant also admitted in his cross-
examination that at the time of alleged advancement of the
loan, he had taken cheque for a sum of Rs.4,50,000/-,
Rs.2,50,000/- and D.P.Note. Under such circumstances,
as noted earlier itself cheque is presented after lapse of
nearly three years from the date of alleged advancement of
the loan. There is no any interest is charged for a huge
sum of Rs.7 lakhs. No security had been obtained. All
these infirmities will certainly help the accused to grab in
both hands to rebut the presumption.
22. The decisions relied upon by the learned
counsel for the complainant reported in the case of
T.Vasanthakumar -Vs- Vijayakumari - AIR 2015 SC
2240, Venkatesh Prasad -Vs- Subray.V.Bhar - 2014
(2) DCR 93, Syed Nayed Ali -Vs- Siddharath Sankar
Dey - 2014 (2) DCR 505, M/s.SBQ Steels -Vs- M/s.Goyal
Gases Private Limited - 2014(1) DCR 74 (Mad) High
Court, Peeranabi -Vs- Hajimalang - 2014 (1) DCR 179
Karnataka High Court, M.Sursh Babu -Vs- Smt.Geetha
Suresh - in Crl.RP.No.59/2013, M/s.Shivaraj Wires
Limited and others -Vs- State of Punjab and another -
2013(1) DCR 184 are not applicable to the facts of the
22 CC.NO.13671/2014
present case since the judgments have been rendered in a
different set up facts and circumstances. If the facts and
circumstances of this case propounded by both the parties
is taken into consideration, in my opinion, the decisions
relied upon by the learned counsel for the complainant
cannot be made applicable to the facts of the present case.
23. Therefore, after analyzing the entire material
placed on record by both the parties, the complainant has
failed to impress upon the Court that it is a fit case to
draw presumption envisaged U/s.118 and 139 of NI Act.
On the contrary, material placed on record by the
complainant itself is sufficient to rebut the presumption in
favour of the accused. As such, I answer Point No.1 in the
affirmative.
24. Point No.2 : In the result, I proceed to pass the
following:
ORDER
Acting Under Sec.255(1) Cr.P.C., accused is Acquitted for the offence punishable u/s.138 of the N.I.Act.
His bail bond and surety bond shall stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, is verified and then 23 CC.NO.13671/2014 pronounced by me in Open Court on this the 9th day of September 2016.) (V.S.PANDIT), XV Addl. CMM., Bangalore.
ANNEXURE Witnesses examined for the Complainant:-
PW.1 Rajendra Kumar Sharma, PW.2 Ganesh Prasad, Documents marked for the Complainant:-
Ex.P.1 D.P.Note,
Ex.P.1a Sign.,of PW.2,
Ex.P.2 Cheque,
Ex.P.2a Signature,
Ex.P.3 Bank Endorsement,
Ex.P.4 Notice,
Ex.P.5 Postal A.D.Card,
Ex.P.6 Postal receipt,
Ex.P.7 Reply Notice,
Ex.P.8 Income tax returns for the year
2014-15,
Ex.P.9 Balance Sheet,
Ex.P.10 Wedding card.
Witnesses examined For Defence:-
DW.1 Beeruman Patel, Documents marked for Defence:-
Ex.D.1 Certified copy of cheque, Ex.D.2 Certified copy of judgment In CC.NO.6466/2012.
XV Addl.CMM., Bangalore.24 CC.NO.13671/2014 25 CC.NO.13671/2014 26 CC.NO.13671/2014 27 CC.NO.13671/2014 28 CC.NO.13671/2014