Bangalore District Court
Smt.C.Shanthi vs Sri. G.Santhosh on 17 February, 2020
1 C.C.No.21013/2016 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 17th day of February, 2020
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.21013/2016
Complainant : Smt.C.Shanthi,
Aged about 47 years,
W/o. Sri.Chakradhar B,
# G4, Sindu Residency,
I Main Road,
Simha Colony,
Chikkakallasandra,
Bengaluru -560 081.
(Rep. by Sri LEX NEXUS., Advs.,)
- Vs -
Accused : Sri. G.Santhosh,
Aged about 41 years,
S/o.Late Sri.T.Govindaswamy
Naidu,
R/at: Nallapothulla Dorswamy
Naidu Apartment,
2nd Floor, Northern House,
Door No. 44,45, I Main Road,
Sumukha Layout,
Opp. Magan Golden Gate,
2 C.C.No.21013/2016 J
BSK 3rd phase, 3rd Stage,
Bengaluru -560 061.
(Rep. by Sri. Sudhindra B.S., Adv.,)
Case instituted : 8.9.2016
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 17.2.2020
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, towards payment and discharge of the legal liability (which is legally recoverable) the Accused has issued five cheques bearing nos. 1) cheque bearing No. 000422 dated: 27.6.2016 for sum of Rs.25,00,000/-, drawn on account maintained by the Accused Kotak Mahindra Bank Ltd., Sri. Complex, Bhavani Housing Co-operative society Ltd., Banashankari, Bengaluru 2) cheque bearing No. 000423 dated: 27.6.2016 for sum of Rs.25,00,000/-, 3 C.C.No.21013/2016 J drawn on account maintained by the Accused Kotak Mahindra Bank Ltd., Sri. Complex, Bhavani Housing Co-operative society Ltd., Banashankari , Bengaluru,
3) cheque bearing No. 000424 dated: 27.6.2016 for sum of Rs.25,00,000/- drawn on account maintained by the Accused Kotak Mahindra Bank Ltd., Sri. Complex, Bhavani Housing Co-operative society Ltd., Banashankari, Bengaluru, 4) cheque bearing No. 000425 dated: 27.6.2016 for sum of Rs.25,00,000/-, drawn on account maintained by the Accused Kotak Mahindra Bank Ltd., Sri. Complex, Bhavani Housing Co-operative society Ltd., Banashankari 3rd stage, Bengaluru and 5) cheque bearing No. 069144 dated: 27.6.2016 for sum of Rs.31,00,000/-, drawn on account maintained by the Accused M/s. IDBI Bank, Ltd, Banashankari 3rd Stage Branch, Bengaluru i.e. in total for sum of Rs.1,31,00,000/- in her favour with assurance that, the said cheques would be honoured upon presentation for payment and acceptance of the amount due their under either on the date of appearing on the respective cheques or at any subsequent thereto within the period of their validity. It is further contended that, as per the 4 C.C.No.21013/2016 J instructions given by the Accused she has presented the said cheques for payment and acceptance through his bankers M/s. City Union Bank Ltd., Banashankari Branch, Bengaluru on 27.6.2016 but the said cheques were returned dishonoured for the reasons of "Payment Stopped by Drawer" on 27.6.2016 and same was received by the complainant through her banker on 30.6.2016 thereafter she got issued legal notice dated:
25.7.2016 to the Accused demanding amongst other things, the amount due and payable by him, towards her through the RPAD dated: 27.7.2016 and the said notice was served on the Accused on 28.7.2016, inspite of receipt of the notice, the Accused has not made the payment of the amount due. Hence the complainant has filed this present complainant 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 affidavit-in-lieu of his sworn statement, in which, she has reiterated the averments of the complaint. In support of her oral evidence, she has relied upon the documentary 5 C.C.No.21013/2016 J evidence as per Ex.C.1 to C.14 i.e, five Original Cheques dated:-27.6.2016 as per Ex.C.1 to C.5 respectively, the signatures on the said cheques identified by P.W.1 as those of the accused as per Ex.C.1(a) to C.5(a) respectively , five Bank Memos as per Ex.C.6 to C.10 respectively, the office copy of the Legal Notice as per Ex.C.11, two Postal Receipts as per Ex.C.12 and C.13 respectively, postal acknowledgement as per Ex.C.14.
4. Prima-facie 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. In view of the principles of law laid down and as per the directions 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, the case was posted for the complainant evidence.6 C.C.No.21013/2016 J
6. The SPA holder of the complainant examined as PW.1 and he has filed his affidavit, in which he has reiterated the complaint averments and has adopted the documents which are already marked as Ex.C.1 to C.14 at the time of recording of sworn statement and has produced the Special Power of Attorney executed by the complainant marked as per Ex.P.15 and closed his side.
7. 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.
8. The Accused himself examined as DW.1 and he has filed his affidavit in lieu of his examinations-in-chief and during the course of cross-examination of the complainant got marked certified copy of the registered sale deed dated:
20.4.2015 executed by him infavour of the complainant as per Ex.D.1 and certified copy of the complaint in PCR No.12577/2016 filed by him before the 4th ACMM, Bengaluru against the complainant 7 C.C.No.21013/2016 J herein and others., as per Ex.D.2, certified copy of the plaint in O.S.No. 7884/2015 filed before the City Civil Judge Court (CCH -18) at Bengaluru as per Ex.D.3 and closed his side.
9. Heard the arguments of both learned counsels for the complainant and the Accused and perused the decisions submitted by the both learned counsels for the complainant and Accused materials on record. The learned counsel for the complainant has produced decisions i.e. 1) Crl.NO.s 3858/2019 in case of Pavan Diliprao Dike Vs. Sihal Narendrabhai Parmer decided by the Hon'ble Supreme court of India, 2) Crl. Appeal No. 1020/2010 in case of Rangappa Vs. Mohan decided by the Hon'ble Supreme Court of India,
3) Crl. Appeal No. 73/2007 and 1437/2012 in case of A.C.Narayanan and Ors., State of Maharashtra and Ors., decided by the Hon'ble supreme Court of India; 4) Crl. Appeal No. 230-
231/2019 incase of Bir Singh Vs. Mukesh Kumar; 5) Crl. Appeal No. 2571/2010 in case of Kowdi Yalameli Enterprises Vs. V.G.Bhat and Ors., 6) Crl. Appeal No. 950-951/2018 in case of 8 C.C.No.21013/2016 J T.P.Murugan (Dead) thr., LRs and Ors., Vs. Bojan The learned counsel for the Accused has relied upon the decisions reported in 1) 2017(1) DCR 17 Rajan Athmaram (Deceased) Vs. M/s. Celebrate Screens Pvt.Ltd., (Madras High Court; 2) 2016(1) DCR 625 in case of The Karad urban Co-
operative Bank Ltd., Vs. Sunil Laxman Dalvi & Another (Bombay High Corut) ; 3) (2009) 2 SCC 513 in case of Kumar Exports Vs. Sharma Carpets
10. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:-
1. Whether the complainant proves that the accused has issued five cheques i.e
1) cheque bearing No. 000422 dated: 27.6.2016 for sum of Rs.25,00,000/-, drawn on account maintained by the Accused Kotak Mahindra Bank Ltd., Sri. Complex, Bhavani Housing Co-operative society Ltd., Banashankari, Bengaluru 2) cheque bearing No. 000423 dated: 27.6.2016 for sum of 9 C.C.No.21013/2016 J Rs.25,00,000/-, drawn on account maintained by the Accused Kotak Mahindra Bank Ltd., Sri. Complex, Bhavani Housing Co-operative society Ltd., Banashankari, Bengaluru, 3) cheque bearing No. 000424 dated: 27.6.2016 for sum of Rs.25,00,000/- drawn on account maintained by the Accused Kotak Mahindra Bank Ltd., Sri. Complex, Bhavani Housing Co-operative society Ltd., Banashankari, Bengaluru, 4) cheque bearing No. 000425 dated: 27.6.2016 for sum of Rs.25,00,000/-, drawn on account maintained by the Accused Kotak Mahindra Bank Ltd., Sri. Complex, Bhavani Housing Co-operative society Ltd., Banashankari 3rd stage, Bengaluru and 5) cheque bearing No. 069144 dated:
27.6.2016 for sum of Rs.31,00,000/-
drawn on account maintained by the Accused M/s. IDBI Bank, Ltd, Banashankari 3rd Stage Branch, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented a cheques for encashment through her banker but the said cheques have been dishonoured for the reasons " Payment Stopped by drawer " on 27.6.2016 and the complainant issued legal notice to the accused on 25.7.2016 and inspite of it the accused has not paid the cheques amount within 10 C.C.No.21013/2016 J prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
11. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
12. 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 11 C.C.No.21013/2016 J such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act pre-supposes 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.
13. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must 12 C.C.No.21013/2016 J have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages 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 or 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.
14. In the present case the SPA holder of the complainant has examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire contents of the complaint. The SPA holder of the complainant/ PW.1 testified that, the complainant is his wife and has executed a special power of attorney in his favour on 23.3.2017, 13 C.C.No.21013/2016 J authorizing him to prosecute this complaint against the Accused and he is personally aware of the facts, events, circumstances, etc., of this case. The PW.1 further testified that, towards payment and discharge of liability the Accused has issued five cheques ie Ex.C.1 to C.5 for total sum of Rs.1,31,00,000/- infavour of the complainant by assuring that, the said cheque would be honoured on their presentation either on the date of appearing on the cheques or at any time subsequent thereto within the period of their validity, accordingly the complainant has presented the said cheques through her banker on 27.6.2016 but the said cheques were returned dishonoured for the reasons of "Payment Stopped by Drawer" dated: 27.6.2016 and same was communicated to the complainant on 30.6.2016. The PW.1 further testified that, the complainant got issued demand notice dated:
25.7.2016 to the Accused through RPAD on 27.7.2016 demanding amongst other things, the amount due and payable to her but though the said notice was served on 28.7.2016 on the Accused, he did not made any payment of the amount due under the cheque.14 C.C.No.21013/2016 J
15. In support of oral evidence the complainant has produced documents as per Ex.C.1 to C.14 i.e, five Original Cheques dated:-27.6.2016 as per Ex.C.1 to C.5 respectively, the signatures on the said cheques identified by P.W.1 as those of the accused as per Ex.C.1(a) to C.5(a) respectively , five Bank Memos as per Ex.C.6 to C.10 respectively, the office copy of the Legal Notice as per Ex.C.11, two Postal Receipts as per Ex.C.12 and C.13 respectively, postal acknowledgement as per Ex.C.14, subsequently the SPA holder of the complainant i.e., PW.1 has produced the Special power of Attorney document executed by the complainant marked as per Ex.C.15.
16. The Accused in his defence has denied the liability in question and issuance of cheques in question towards discharge of liability in question as claimed by the complainant in the complaint. It is also defence of the Accused that, the complainant has forcibly taken the cheques in question from him on 13.6.2016 for that, he lodged the complaint before the jurisdictional police station, however in view of non taking action against the complainant he 15 C.C.No.21013/2016 J has filed a private complaint before the 4th ACMM, Court, Bengaluru ion PCR No.12577/2016 for adjudication. It is also the defence of the Accused that, he sold his property bearing No. 36 of Sy.No.17 measuring to an extent of 60 x 42 sq. ft. situated at Chikkakallsandra Village, Uttarahalli Hobli, Bengaluru in favour of the complainant on 20.4.2015 through registered sale deed for total sale consideration of Rs.1,31,00,000/- and in respect of disturbance by the third parties over the said property, a false case has been registered before the City Civil and Session Judge Court, Bengaluru in OS.No.7884/2015 and now by misrepresenting the facts and during subsistence of sale deed and after constructions and other works in the property sold by him the complainant with ill intention of recovering the said sale consideration amount received by him during the execution of sale deed in an illegal manner with active support of sub inspector of Subramanyapura Police forcibly took the cheques in question and filed the false case though there is no legally enforceable debt. It is settled law that, once the issuance of the cheque infavour of holder in due course is admitted by the drawer, 16 C.C.No.21013/2016 J 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. In the present case, it has tobe examined as to whether the Accused has rebutted the presumption successfully or not by examining oral and documentary evidence adduced by the both parties.
17. On careful considering the contents of the legal notice i.e. Ex.C.11 issued by the complainant, averments of the complaint and evidence of the SPA holder of the complainant makes it clear that, the complainant in her notice, complaint and evidence of the PW.1, has not disclosed the nature of transaction and liability between her and the Accused and also not mentioned which date/dates the liability arose, quantum of liability, to whom and when the cheques were given and for what purpose 17 C.C.No.21013/2016 J the cheques were issued. It is pertaining to note here that, the complainant only has stated in her complaint that, "towards discharge of his liability (which is legally recoverable) the Accused issued five cheques for a total sum of Rs.1,31,00,000/- only, the details of which are mentioned herein below, drawn in favour of the complainant with assurance that the cheques which he had so issued, would immediately be honoured upon presentation, for payment and acceptance of amount due there under, either on the appearing on the respective cheques, or at any time subsequent thereto within the period of their validity". Except the above said averments the complainant has not averred or pleaded anything regarding nature of transaction, liability between her and the Accused. Now the question before the court is whether non pleading or mentioning of the nature of transaction in question or liability in question it can be held that there was no existence of legally enforceable debt or liability as against the Accused.
18. In this regard, it is relevant here to refer the decision of Hon'ble Apex Court of India reported in (2015) 15 SCC 693 in the case of "Omni Plast 18 C.C.No.21013/2016 J (P) Ltd., Vs. Standard Chartered Bank and Others"., wherein the Hon'ble Apex Court held that " Absence of require pleading in respect of transaction concern- quashed of complaint, conferred". In another decision of Hon'ble Apex Court of India reported in AIR 2004 Supreme Court 4274 in the case of Menben Kethan Bhaisha and others Vs. State of Gujarat and others., wherein the Hon'ble Apex court held that "
Necessary - In absence of requisite averment in complainant, the offence against Accused/partners could not be made out". "Mere filing at belated stage , copy of partnership deed to show that, Accused were active in business. Is of no consequence when no such document was filed along with complaint -discharge of Accused proper. In another decision of Hon'ble High Court of Delhi decided in the case of M/s. Shivam Minerals Ltd., and another Vs. State and another., wherein the Hon'ble High Court held that " It is required to be avare in the complaint of Sec.138 of N.I. Act as to what is the factual basis to show existing debt or liability or necessary ingredients to maintain the 19 C.C.No.21013/2016 J complaints in question are lacking." Hence on careful reading of the principles of law laid down by the Hon'ble Apex Court in the above decisions makes it clear that, the complainant has to plead specific averments with regard to existence of debt or liability in respect of the transaction in question against the Accused, in the absence of such pleadings or averments the complaint itself suffers from necessary ingredients of sec.138 of N.I. Act, i.e., existence of legally recoverable debt. It is also relevant here to refer another decision of Hon'ble Apex Court reported in LAWS (SC) -2019-8-82f Supreme Court of India decided on 21.8.2019 in the case of " Shree.Dharneshwari Traders" Vs. Sanjay Jain", Wherein the Apex court held that "
Though complaint contents no specific averments that, cheques were issued or purchase made on credit, in his evidence, complainant clearly stated that, cheques were issued for commodities purchased on credit -
"oral and documentary adduced by the complainant are sufficient to prove that, it was a legally enforceable debt and that cheques were issued to discharge the legally enforceable debt-20 C.C.No.21013/2016 J
with evidence adduced by the complainant the courts below ought to have raised presumption U/s.139 of N.I. Act. Hence, from careful reading of the principles of law laid down by the Hon'ble Apex Court in the above referred decision makes it clear that, even though the complaint contains no specific averments with regard to issuance of the cheques , in such circumstances, if the complainant established the same by producing his oral and documentary evidence to prove that, there is a legally enforceable debt and cheques were issued to discharge the said legally enforceable debt , in such circumstances court can raise presumption U/s.139 of N.I. Act. On careful perusal of the legal notice, complaint and evidence adduced by the complainant in the present case it appears that, the complainant has not averred in her legal notice or complaint regarding the transaction in question and liability of the Accused in question and issuance of the cheque towards the liability in question by the Accused. It is also relevant here to mention that, even though the complaint contents no specific averments that, cheques were issued and existence of legally enforceable debt and cheques were issued to 21 C.C.No.21013/2016 J discharge of legally enforceable debt but in the evidence of SPA holder of the complainant i.e. PW.1 also he nowhere stated about the nature of transaction and liability of the Accused and issuance of the cheque by the Accused towards discharge of liability. Hence, it goes to show that, the averments made in the complaint is bald without disclosing the factual aspects as to how, when and in what connection the huge liability of Rs.1,31,00,000/- arose and has not averred on which date the liability arose, quantum of liability, and to whom and when the cheques in question were given and for what purpose the cheques were given. The complainant in her complaint and in the evidence of her SPA holder i.e PW.1 has stated with regard to liability is only in one sentence i.e. "towards payment and discharge of his liability (which is legally recoverable) the Accused has issued five cheques for a total sum of Rs.1,31,00,000/- only in favour of the complainant' , therefore except the said sentence the complainant has not averred with regard to existence of legally recoverable debt or liability and issuance of the cheques in question by the Accused towards discharge of legally enforceable debt or liability. In 22 C.C.No.21013/2016 J addition to that, the SPA holder of the complainant/ PW.1 in his cross-examination at page No.5 has admitted that, " It is true to suggest that, I have not pleaded either in the legal notice or in my complaint or in my affidavit about the purpose for which I have collected the cheques in dispute from the Accused". Hence, the very admission of PW.1 makes it clear that, the complainant either in her notice or in the complaint or her SPA holder i.e PW.1 in his evidence has not stated about the purpose for which she had collected the cheques in dispute from the Accused, thus in view of the principles of law laid down by the Hon'ble Apex Court of India in the above referred decision, it can be held that, there was no existence of legally recoverable debt in the absence of clear and specific averments in the complaint with regard to factual basis to show existing debt or liability or necessary ingredients to maintain the complaint in the question, therefore the complainant has miserably failed to prove or show there was an existence of legally recoverable debt or liability against the Accused as claimed by the complainant in this complaint. In view of the principles of law laid down 23 C.C.No.21013/2016 J by the Hon'ble Apex Court in the decision referred above the complainant atleast her SPA holder could have stated about the nature of transaction in question and liability of the Accused and the cheques were issued towards legally enforceable debt but no oral or documentary evidence adduced by the complainant so as to raise the presumption U/s.139 of N.I. Act, that, there was existence of legally enforceable debt and the cheques in question were issued to discharge the said legally enforceable debt, in such circumstances, the complainant has miserably failed to prove to raise the presumption U/s.139 of N.I. Act in respect of the cheques in question.
19. It is also relevant here to mention that, the complainant in her legal notice, complaint and in the evidence of PW.1 though she has not averred the nature of transaction and liability of the Accused and facts with regard to how, when and in what connection the huge liability of Rs.1,31,00,000/- arose against the Accused and also not aware on which date the liability arose, quantum of liability, to whom and when the cheques were given and for 24 C.C.No.21013/2016 J what purpose the cheques were given, but interestingly the SPA holder of complainant/PW.1 in his cross-examination admitted that, according to him they have purchased a property bearing Site No.36 in Sy.No.70 of Chikkakallasandra Sarvabhowma Nagara, measuring 42 x 60 sq. ft. on 24.2.2015 from the Accused in respect of which they have paid Rs.1,31,00,000/- to the Accused and the certified copy of the sale deed date: 20.4.2015 is identified and admitted by the PW.1 so it has been marked as Ex.D.1 and also admitted that, other than the said transaction of purchase of the site by them from the Accused there has been no other transaction between his wife and the Accused and also admitted that, apart from the sale consideration which is shown in Ex.D.1 i.e., certified copy of the sale deed dated: 20.4.2015 the Accused has not received the amount from him which is shown under the cheques in dispute. It is relevant here to mention that the learned counsel for the complainant during the course of cross-examination of the Accused at page No.6 of cross-examination has suggested that, the cheques in question have been issued to the complainant towards repayment 25 C.C.No.21013/2016 J of the sale consideration amount received under registered sale deed as the Accused has sold the property to the complainant under the registered sale deed, though he has not the owner and having title and possessory right over the said property. Hence on combined reading of the admissions of the PW.1 and suggestions made by the learned counsel for the complainant to the Accused makes it clear that, according to the complainant the Accused has forged and created the title deed of the property and has sold the property infavour of the complainant and has cheated by them by executing a sale deed infavour of the complainant and in order to repay the sale consideration amount received by the Accused has issued the cheques in question infavour of the complainant. It is also relevant here to mention that, as it is already stated in the above that, the complainant has not averred or pleaded the above said factual aspects either in the legal notice, complaint or in the evidence of the PW.1, hence only on the basis of suggestion made by the complainant during the course of cross-examination of the Accused it cannot be held that, the cheques in question were issued towards repayment of the sale 26 C.C.No.21013/2016 J consideration amount received by the Accused under registered sale deed dated: 20.4.2015. Even for sake of discussion if it is assumed that, the cheques in question were issued by the Accused towards repayment of the sale consideration amount received by him under the registered sale deed dated: 20.4.2015, the initial burden is on the complainant to prove the said fact. It is also relevant here to mention that, though PW.1 has admitted in his cross-examination that, they have purchased the site property from the Accused for sale consideration amount of Rs.1,31,00,000/- and have paid the said amount to the Accused and except the said transaction there has been no other transaction between his wife and the Accused and the Accused has issued the cheques in question towards repayment of the sale consideration amount but the complainant has not produced the said registered sale deed dated: 20.4.2015 , on the contrary the Accused has produced the certified copy of the said registered sale deed which is Ex.D.1.
20. It is also relevant here to mention that, according to the admissions of PW.1 in his cross-27 C.C.No.21013/2016 J
examination the cheques in question have been issued by the Accused towards repayment of the sale consideration amount of Rs.1,31,00,000/- received by him as the Accused has forged and created title deed of the property and sold infavour of the complainant and has cheated the complainant by executing a sale deed for that, the cheques in question have been issued by the Accused in favour of the complainant. In this regard, it is relevant here to refer the certain crucial admitted facts of the SPA holder of the complainant i.e. PW.1 during the course of his cross-examination which reads under:
" after the purchase of the said site the katha in respect of the same has been registered in the name of my wife. It is true to suggest that, after having purchased the said site we have been paying the tax in respect of the same. It is true to suggest that, we have also availed loan on the said site. It is true to suggest that, at the time of its purchase the said site was vacant site. It is true to suggest that, 28 C.C.No.21013/2016 J after getting the katha in respect of the said site in the name of my wife we have also obtained the license from the BBMP to put up construction on it. I have no impediment in producing the katha, the tax paid receipt and sanctioned plan before this court. After getting the sanctioned plan from the BBMP we have put up a four storage building (Ground floor Plus three floors) on the said site.
Further admitted as under:
" It is true to suggest that, after having purchased the site from the Accused I have lodged a complaint against one Narayanaswamy alleging that, he was causing obstructions to our peaceful possession of the said site. It is true to suggest that, I had also filed a suit for permanent injunction against him. The said suit is still pending. It is true to suggest that, thereafter a suit was also filed 29 C.C.No.21013/2016 J against me by one K.S.Sharadamma, K.S. Shivaram, K.S. Ananthaswamy and Bhagyalakshmi. I have no impediment in producing the relevant papers concerning the aforesaid complaint, suit filed by me as well as the suit that has been field against me."
Further admitted as under:
"It is true to suggest that, still I amount in possession of the site that I have purchased from the Accused. It is true to suggest that I have been granted with an order of temporary injunction against the Accused in the suit that, I have filed against him".
Further admitted as under:
" I have deposited the original sale deed before the Hon'ble High Court as per the direction given to me by the Hon'ble High Court".
"It is true to suggest that, the sale 30 C.C.No.21013/2016 J deed as per Ex.D.1 in favour of my wife is still subsisting"
Hence, the above admissions of the PW.1 makes it clear that, the complainant has purchased a site bearing No. 36 in Sy.No. 70, measuring 60 x 42 ft. situated at Chikkakallasandra Village, Bengaluru from the Accused for a total sale consideration amount of Rs.1,31,00,000/- through a registered sale deed dated: 20.4.2015 as per Ex.D.1. it is also admitted by the PW.1 that, after purchase of the said site the katha in respect of the same has been registered in the name of the complainant and they are in peaceful possession of the said site by paying taxes. It is also admitted by PW.1 that, after getting the katha in the name of the complainant they have availed a loan on the said site and also obtained a license from the BBMP to put up a construction and also obtained sanctioned plan from BBMP and put up four storage building on the said site. Hence, the admissions of the PW.1 makes it clear that, as on this day, the complainant is in possession and enjoyment of the site purchased from the Accused and the complainant has also collected the original documents from the Accused and has 31 C.C.No.21013/2016 J obtained a loan on the site and have also put up the construction of four storage building on the said site, hence it goes to show that, the complainant has acted upon the registered sale deed and established her ownership over the site purchased from the complainant. It is also admitted by the complainant that, she has filed complaint and a civil suit against one Narayanaswamy alleging that, he was causing obstructions to her possession of the said site, that itself goes to show that, the complainant is in possession of the site purchased from the Accused. It is also seen from the admission that, complainant has also field a suit against the Accused where she has been granted an order of temporary injunction against the Accused, in such circumstances, it can be held that, the complainant after purchase of the site from the Accused exercising her ownership and possessory right over the site, in such circumstances, it cannot be held that, there is an existence of enforceable debt against the Accused in respect of repayment of the sale consideration amount received by him. If really the cheques in question were issued by the Accused in favour of the complainant as stated by the PW.1 in his cross-
32 C.C.No.21013/2016 Jexamination and as suggested by the learned counsel for the complainant during the course of cross-examination of the Accused, then the question of getting the katha in the name of complainant in respect of the site purchased from the Accused through Ex.D.1 and obtaining loan from the bank on the said site and getting plan for construction of the buildings on the site and construction of the four storage building on the site and filing of the complaint and suit against the persons who are obstructing her possession does not arise at all, in such circumstances the serious doubt arises with regard to alleged issuance of cheque towards discharge of alleged liability in question.
21. It is also relevant here to mention that, the SPA holder of the complainant in his cross- examination has admitted that, as on this day, the sale deed i.e Ex.D.1 executed in favour of the complainant is still subsisting, hence it goes to show that, the registered sale deed executed by the Accused infavour of the complainant as per Ex.D.1 is still in subsisting that means the Ex.D.1 either it is not cancelled by any courts of law or by the 33 C.C.No.21013/2016 J competent authority , in such circumstances it cannot be held that, the Accused has executed the registered sale deed in favour of the complainant by forging or creating the title deed and sold in favour of the complainant and has cheated by executing the sale deed in favour of the complainant for that, has issued the cheques in question towards repayment of the sale consideration amount as claimed by the complainant. It is relevant here to mention that, when there is subsistence of sale deed i.e Ex.D.1 and complainant is exercising her ownership and possessory right over the site property on the basis of Ex.D.1 registered sale deed, then the question of repayment of the sale consideration amount received by the Accused does not arise at all.
22. It is also relevant here to mention that, the Accused in order to rebut the presumptions available infavour of the complainant himself examined as DW.1 in his evidence has stated that, the complainant has forcibly taken the cheques in question from him on 13.6.2016 for that, he lodged the complaint before the jurisdictional police station, however in view of non taking action against the 34 C.C.No.21013/2016 J complainant he has filed a private complaint before the 4th ACMM, Court, Bengaluru ion PCR No.12577/2016 for adjudication. The Accused /DW.1 further stated that, he sold his property bearing No. 36 of Sy.No.17 measuring to an extent of 60 x 42 sq. ft. situated at Chikkakallsandra Village, Uttarahalli Hobli, Bengaluru in favour of the complainant on 20.4.2015 through registered sale deed for total sale consideration of Rs.1,31,00,000/- and in respect of disturbance by the third parties over the said property, a false case has been registered before the City Civil and Session Judge Court, Bengaluru in OS.No.7884/2015 and now by misrepresenting the facts and during subsistence of sale deed and after constructions and other works in the property sold by him the complainant with ill intention of recovering the said sale consideration amount received by him during the execution of sale deed in an illegal manner with active support of sub inspector of Subramanyapura Police forcibly took the cheques in question and filed the false case though there is no legally enforceable debt. The Accused during the course of cross-examination of PW.1 got marked the certified copy of the registered sale deed 35 C.C.No.21013/2016 J dated: 20.4.2015 as Ex.D.1 and in support of his oral evidence, has also produced certified copy of the complaint in PCR No. 12577/2016 filed before the 4th ACMM, court Bengaluru and certified copy of the plaint in O.S.No.7884/2015 before the Hon'ble City Civil Judge Court, Bengaluru which are at Ex.D.2 and D.3 respectively.
23. It is also relevant here to mention that, the learned counsel for the complainant has cross examined the Accused in length but nothing has been elicited to discredit or disbelieve the evidence of the Accused. The Accused/DW.1 has denied the suggestions made to him that, the cheques in question have been issued by him towards repayment of the sale consideration amount received by him under the registered sale deed executed infavour of the complainant as he has forged and created the title deed of the property and sold the same to the complainant and by cheating has executed the sale deed in favour of the complainant. it is also relevant here to mention that, the complainant has admitted the fact that, the Accused has filed a private complaint as per Ex.D.2 before the 36 C.C.No.21013/2016 J 4th ACMM Court at Bengaluru against her and her husband i.e PW.1 and another by alleging that, the complainant her husband and another have pressurized , threatened and extracted him to pay an amount of Rs.1,31,00,000/- to the complainant to meet the losses towards litigation arose in respect of the property sold by him and forcibly, coercively putting threat to his life and by using the help of police inspector of Subramanyapura police station have obtained five post dated cheques infavour of the complainant from him. It is true that, the Accused has admitted that, he has filed a complaint to the police commissioner, Asst. Police commissioner and also to DCP by alleging that, the complainant forcibly obtained the cheques in question on 13.6.2016 but has not produced the document , on the contrary the Accused has produced the PCR copy filed before the 4th ACMM Court, which is at Ex.D.2 It is also true that, the Accused admitted that, the private complaint filed by him is still the same stage since from 18.10.2016, but only on that ground it cannot be held that, the allegations made by the Accused in PCR filed by him are false and cannot be acceptable one. It is also true that, the 37 C.C.No.21013/2016 J Accused has admitted that, he has issued stop payment instructions on 13.6.2016 to his bank but has not produced the acknowledgement for having issued the Stop payment instructions to his banker , but it is relevant here to mention that though the Accused has not produced the acknowledgement, the very endorsement issued by the bankers of the Accused towards the cheques in question as they were returned to the complainant for the reasons of stop payment made by the drawer, in such circumstances, no much relevancy is to be given for non production of the acknowledgement by the Accused for issuance of stop payment instructions to his bankers. It is also relevant here to mention that, the complainant during the course of cross- examination of the complainant has not disputed the subsisting of registered sale deed i.e Ex.D.1 executed by the Accused as on this day. It is also not disputed by the complainant about exercising her ownership right and possessory right over the site purchased by her from the Accused and also not disputed the fact that, after purchase of the site property she obtained loan from the bank and constructed four storage building on the site. It is also not disputed by the 38 C.C.No.21013/2016 J complainant that, after purchase of the site property since then she is in possession of the said site property and also not disputed filing of complaint and suit by her against one Narayanaswamy alleging that, he was causing obstructions to her possession as claimed by the Accused. Hence, in view of the said non disputing facts by the complainant during the course of cross-examination of the Accused makes it clear that, the complainant after execution of the sale deed by the Accused in her name she is in possession and enjoyment of the property and also constructed multistoried building for which, she obtained the bank loan and also utilized for the same, hence in view of the litigation pending before the court and the conduct of the complainant appears to be corroborate the defence of the Accused that, the complainant has forcibly collected the cheques in question from the Accused as contended by the Accused in his defence.
24. The perusal of the Ex.D.3 it appears that, one Smt.K.S.Sharadamma and others have filed a suit against the complainant and Accused herein in O.S.No.7884/2015 before the Hon'ble City Civil 39 C.C.No.21013/2016 J Judge Court at Bengaluru (CCH No.18) for declaration of their ownership and permanent injunction and also declaration of the sale deed executed by the Accused in favour of the complainant dated; 20.4.2015 as null and void and not binding on them and for other relief's It is also an admitted fact by the complainant that, the said suit is pending before the City Civil Judge Court for consideration, in such circumstances, it can be held that, the registered sale deed executed by the Accused in favour of the complainant i.e Ex.D.1 dated: 20.4.2015 is not at declared as null and void by the Civil Court and it is also admitted by the complainant that, as on this day, she is in possession of the property purchased under Ex.D.1, in such circumstances unless and until the registered sale deed executed by the Accused infavour of the complainant i.e Ex.D.1 is declared as null and void by the civil court , at this juncture the claim of the complainant in this case i.e. the Accused has issued the cheques in question towards repayment of the sale consideration amount of Rs.1,31,00,000/- in her favour as the Accused has forged and created the documents and has sold the 40 C.C.No.21013/2016 J property and by cheating has executed the registered sale deed in her favour is not maintainable. Therefore the complainant has miserably failed to prove that, the Accused has issued the cheques in question i.e Ex.C.1 to C.5 towards discharge of liability as claimed by her in the complaint.
25. It is relevant here to mention that, as it is already held in the above that, the complainant neither in her legal notice, complaint nor in the evidence of SPA holder has not disclosed about the existence of legally recoverable debt or liability against the Accused though the complainant claims that, the Accused has issued cheques in question for sum of Rs.1,31,00,000/-, but during the course of cross-examination of the Accused the learned counsel for the complainant had suggested that, the cheques in question have been issued by the Accused to the complainant towards repayment of the sale consideration amount received under the registered sale deed, but there are no documents to show that, whether the Accused has agreed to repay the sale consideration amount received by him as claimed by the complainant, on the contrary the SPA 41 C.C.No.21013/2016 J holder of the complainant during the course of his cross-examination has categorically admitted that, after purchase of the site property under the registered sale deed i.e., Ex.D.1 the katha of the said property has been changed in the name of complainant and thereafter the complainant availed a loan on the said site and obtained the license from BBMP and after getting the sanctioned plan constructed four storage building on the said site and also admitted that, the complainant had filed a civil suit and complaint against one Narayanaswamy for causing obstructions to her possession of the said site and also admitted that, as on this day she is in possession of the site purchased from the Accused and also obtain injunction order against the Accused and also admitted that, a civil suit is filed by one Smt.K.Sharadamma and others against her and Accused in O.S.No.7884/2015 before the Civil Court for declaration of their ownership and also declaration of sale deed executed by the Accused i.e Ex.D.1 in her favour as null and void and not binding on them, hence it goes to show that, as on the date of alleged issuance of the cheques in question and also on the date of presentation of the 42 C.C.No.21013/2016 J cheques by the complainant to the bank, the sale deed executed by the Accused i.e Ex.D.1 is subsisting and not at all set-aside or cancelled or declared null and void by any courts of law moreover the complainant herself exercising her ownership right and possessory right over the site on the basis of registered sale deed i.e Ex.D.1 executed by the Accused, in such circumstances as on the date of issuance of the cheque or as on today there is no existence of legally recoverable debt or liability as against the Accused. It is settled law that, in order to constitute an offence punishable U/s.138 of N.I Act there must be existence of legally recoverable debt as on the date of cheque by the drawer. In the present case though the complainant has contended that, the Accused has issued Ex.C.1 to C.5 cheques in question for total sum of Rs.1,31,00,000/- in her favour but whereas the SPA holder of the complainant i.e PW.1 in his cross-examination categorically admitted that, as on this day the sale deed executed by the Accused is in subsisting , in such circumstances it cannot be held that, the claim made by the complainant is maintainable as there is no existence of legally recoverable debt as on 43 C.C.No.21013/2016 J the date of issuance of the cheques in question , in such circumstances even though the subject cheques in question were dishonoured for "Payment Stopped by Drawer" as per the endorsements issued by the banker no presumption can be drawn in favour of the complainant and the Accused has not committed an offence U/s.138 of N.I. Act. In addition to that, it can also be held that, though the presumption U/s.118 and 139 of the N.I.Act are available in favour of the complainant but eh complainant has not proved her claim with cogent and convincible evidence, on the other hand, the Accused has led rebuttable evidence and his oral and documentary evidence supports his stands at the same time it creates doubt about the case of the complainant. Therefore for the above said reasons, the Accused has successfully rebutted the presumptions available to the complainant by producing cogent and convincible evidence to hold that, he has not committed an offence as alleged by the complainant.
26. On careful considering the written argument submitted by the learned counsel for the complainant and also the decisions relied upon by 44 C.C.No.21013/2016 J the learned counsel for the complainant it can be held that, the arguments canvassed by the learned counsel for the complainant are not acceptable one, since the complainant herself has failed to prove that, towards payment and discharge of liability the Accused has issued the cheques in question and there was an existence of legally recoverable debt or liability against the Accused and with due respect to the principles of law laid down by the Hon'ble Apex court and also Hon'ble High Court of Karnataka relied upon by the learned counsel for the complainant are not applicable to the case of the complainant, since the Accused in this case has successfully rebutted the presumption available to the complainant, U/s.118 and 139 of N.I. Act.
27. 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, the Accused is liable to pay an amount of Rs.1,31,00,000/- and towards payment and discharge of said liability has issued the cheques in question. No doubt, some discrepancies have been 45 C.C.No.21013/2016 J elicited by the complainant during the cross- examination of Accused but there are no proof regarding the same, however when the complainant herself has failed to establish her case beyond all reasonable doubt, she 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'.
28. 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 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.46 C.C.No.21013/2016 J
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.1,00,000/= which was deposited by the Accused vide order dated 28.11.2016 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 17th day of February, 2020).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri. Chakaradhar Bollineni;
2. List of documents exhibited on behalf of the Complainant:-
Ex.C.1 to C.5 : Original Cheques;
Ex.C.1(a) to : Signatures of the Accused;
C.5(a)
Ex.C6 to C.10 : Bank Memos;
Ex.C.11 : Office copy of the Legal Notice;
47 C.C.No.21013/2016 J
Ex.C.12 & : Postal Receipts;
C.13
Ex.C.14 : Postal Acknowledgement;
Ex.C.15 : Special Power of Attorney executed by
the complainant
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri. G.Santosh;
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : certified copy of the registered sale deed dated: 20.4.2015 executed by him infavour of the complainant (Marked through PW.1) Ex.D.2 : certified copy of the complaint in PCR No.12577/2016 filed by him before the 4th ACMM, Bengaluru against the complainant herein and others., (Marked through DW.1) Ex.D.3 : certified copy of the plaint in O.S.No. 7884/2015 filed before the City Civil Judge Court (CCH -18) at Bengaluru;
(Marked through DW.1) (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.48 C.C.No.21013/2016 J
17.2.2020 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.1,00,000/= which was deposited by the Accused vide order dated 28.11.2016 is ordered to be refunded to him (if not lapsed or forfeited) after the expiry of the appeal period. XVI ACMM, B'luru.