Bangalore District Court
Ravi R.K vs Mr. Anand Kumar on 2 June, 2018
IN THE COURT OF THE XV ADDL.JUDGE
COURT OF SMALL CAUSES & 23rd ACMM, MAYO HALL
UNIT, BENGALURU
Present: Sri. DYAVAPPA. S.B.,
B.A., LL.B.,
XV Addl. Small Causes Judge &
XXIII A.C.M.M., Member, M.A.C.T.,
Bengaluru.
Dated this the 2nd day of June 2018
CC.No.26080 / 2011
COMPLAINANT: Ravi R.K,
Rama Temple Street,
New Thippasandra Post,
BENGALURU-560 075.
(By Pleader Sri.Yoganand .P.)
v/s
ACCUSED: Mr. Anand Kumar,
S/o Sri. Kondappa,
R/at "Sri. Mookambika",
No.122, 1st Floor, 2nd Cross,
New Byappanahalli Extension,
BENGALURU.
Also shop at:
Sri. Venkateshwara Men's Parlour &
Saloon A/c. No.18 1st Floor,
HAL III Stage Road,10th Main Road,
Jeevan Bhimanagar,
BENGALURU-560 008.
( By Pleader Sri. V. Anand)
####
2
SCCH -19
CC.No.26080/2011
Date of offence : 19-02-2010
Date of report of offence : 09-04-2010
Date of arrest of the accused : -
Date of recording of evidence : 03-10-2012
Offence complained of : 138 of N.I Act
Judgment : Acquitted
JUDGMENT
The Complainant has filed this complaint against accused U/sec. 200 of Cr.P.C for the offence punishable under Section 138 of N.I. Act.
2. The brief facts of the Complainant's case as under:
The complainant and accused are close friends. In the month of June 2008, the accused approached the complainant and requested for financial assistance by way of hand loan to the extent of Rs.15,00,000/- to improve and expand his family business of men's saloons and parlors and also to meet family necessities and discharge his legal liabilities and also the accused promised to pay the said amount in the month of August 2009. The complainant having regard to the close friendship and he is also the tenant of his father property 3 SCCH -19 CC.No.26080/2011 has paid the amount of Rs.15,00,000/- by way of cash to the accused on 20th July 2008. In the month of August 2009, the complainant demanded the accused to pay the amount and the accused pleaded extension of time for another six months. Thereafter on 03.09.2009, the accused once again acknowledged the receipt of the said hand loan amount and towards the discharge of the said existing liability, he has issued three account payee post dated cheques in favour of the complainant on 19.02.2010 for amount of Rs.5,00,000/- on 20.02.2010 for amount of Rs.5,00,000/- and on 22.02.2010 for Rs.5,00,000/- drawn on Corporation Bank, Jeevan Bheemanagar Branch, Bangalore. The complainant has believed the words of the accused accepted the three cheques. As per the instructions of the accused, the complainant has presented the above three cheques through his banker of State Bank of India, Jeevan Bheemanagar Branch, Bangalore, but the said three cheques were returned with dishonored for the reasons of insufficient funds. Thereafter the complainant has issued the legal notice on 17.03.2010 to the accused calling upon to pay the three cheques amount. The said legal notice was served on the accused, but inspite of delivery of information of post, the accused did not claim 4 SCCH -19 CC.No.26080/2011 the notice sent through RPAD. Further insisted supplying the demand made by the complainant, the accused has issued untenable reply through his counsel on 24.03.2009. The accused failed to repay the aforesaid dishonor cheques amount to the complainant. The accused without arranging the funds in his bank account with an intention of cheating has issued the cheque and failed to discharge the legal liability. Therefore, the accused has committed an offence punishable under Section 138 of N.I. Act. Hence they pray to punish the accused and directed the accused to pay the cheque amount.
3. After presenting the complaint, this court has taken the cognizance of offence and registering as PCR No.8481/2010 and after recording the sworn statement and perusal of materials, this Court has registered this case for the offence punishable under Section 138 of N.I. Act and issued the summons to the accused. After service of the summons, the accused appeared through his counsel and obtained the bail. Copy of the complaint supplied to the accused and as the case is summons case, the acquisition of the plea as read over and explained to the accused. The accused pleads not guilty 5 SCCH -19 CC.No.26080/2011 and claims to be tried, hence posted for complainant evidence.
4. In order to prove the case, the complainant examined as PW.1 and produced in all 19 documents marked as Ex.P.1 to P.19. After completion of the complainant evidence the statement under Section 313 of Cr.P.C. is recorded and the accused denied the incriminating evidence against him. The accused himself examined as DW.1 and produced 14 documents marked as Ex.D.1 and D.14. After closed the both side evidence, heard argument of the respected both counsels.
5. I have perused the materials available on hand that for the following points arise for my consideration:
1) Whether the complainant proves that towards the discharge of legal liability, the accused has issued a cheque bearing No.016151 for a sum of Rs.5,00,000/-
dated:19.02.2010 and cheque No.016152 for a sum of Rs.5,00,000/- dated :
20.02.2010 and cheque No.016153 for a sum of Rs.5,00,000/- dated : 22.02.2010 drawn on Corporation Bank, Jeevan Bheemanagar Branch, Bangalore and on presentation of the said cheque, the same were dishonored with an endorsement of Insufficient Funds and inspite of issuance of legal notice, the accused has not paid the cheque amount and with an 6 SCCH -19 CC.No.26080/2011 intention to cheat and default the complainant issued the cheque, thereby the accused is committed an offence punishable under Section 138 of Negotiable Instrument Act?
2) Whether the complainant is entitled to claim the compensation amount from the accused?
3) What Order?
6. For the following reasons, I given the answer to the above points are as under:
Point No.1 : In the Negative:
Point No.2 : In the Negative:
Point No.3 : As per final order
for the following:
REASONS
7. Point No.1 : It is the specific case of the complainant that, the accused has borrowed the hand loan amount of Rs.15,00,000/- on 20.07.2008 from the complainant and for discharge of the said loan amount, the accused has issued the three cheques for a sum of Rs.5,00,000/- each drawn on Corporation Bank, Jeevan Bheemanagar Branch, Bangalore. But after presenting the said cheques were dishonor for the reasons of Funds Insufficient in the account of accused. Inspite of issuance of legal notice, the accused has failed to pay the 7 SCCH -19 CC.No.26080/2011 cheques amount and accused has intentionally issued the cheques for cheat and defaulter the complainant. Hence the complainant prays for punish the accused under Section 138 of N.I. Act.
8. The complainant Sri. R.K. Ravi examined himself as PW.1 and filed the affidavit in lieu of chief examination. In his affidavit, he has reiterated the entire averments of the complaint and produced three Bank endorsement marked as Ex.P.1 to P.3, produced one agreement marked as Ex.p.4, produced 3 Bank Endorsements marked as Ex.p.5 to P.7, produced 2 Debit advises marked as Ex.P.8 and P.9, produced copy of the legal notice marked as Ex.P.10, produced 3 postal receipts marked as Ex.P.11 to P.13, produced one postal acknowledgement marked as Ex.P.14, produced 2 returned postal covers marked as Ex.P.15 and P.16, produced reply notice marked as Ex.P.17, produced one copy of the tenancy agreement marked as Ex.P.18 and Statement of Account is marked as Ex.P.19. In the cross-examination, the counsel of the accused specifically suggested that, the accused has not borrowed the hand loan amount and also not issued the cheque for the purpose of discharge the legal liability and also 8 SCCH -19 CC.No.26080/2011 suggested by forcibly taken the signature of the accused on cheques and stamp papers, but same is denied.
9. The accused B.Anand Kumar, examined himself as Dw.1. He has deposed that he know the Complainant and his father, they are landlords of the building which is rented by the accused. Further in the year 2009 he has borrowed loan amount of Rs.5,00,000/- and he has given Promissory note for the security to the said amount. But said amount was repaid out of which Rs.4,00,000/- was adjusted to the advance amount. Further deposed that the complainant by forcibly taken the cheques and also obtained his signatures and they have obtained total 10 cheques with five blank stamp papers and also deposed that he has not borrowed loan amount from Complainant. He has produced one Bank pass book and Certified copy of Order sheet in Criminal case No.26370/2011 along with Complaint marked as Ex.D4 to 6, further produced one deposition and Acknowledgment receipt marked as Ex.D7 and 8, further produced three copy of cheques and copy of notice and also copy of reply notice marked as Ex.D9 to 13. In the cross examination counsel for the Complainant has specifically suggested that, he has borrowed the loan of 9 SCCH -19 CC.No.26080/2011 Rs.15,00,000/- from the Complainant on July-2008 and also executed one Agreement and given three post dated cheques for the repayment of said loan amount, but same is denied.
10. Counsel for the Complainant has submitted the Written Arguments and stated entire averments of the complaint. Further, accused has admitted his signature in the cheques and also agreement. Hence, presumption can be drawn that the cheques were issued for the discharge of legal liability. The counsel for the accused has argued that the accused is not capable to borrow the loan amount of Rs.15,00,000/- from the Complainant and also two cases were registered against the accused on same serial number cheques for total amount of Rs.13,00,000/- and writing of the cheques written by the Complainant Sri.Ravi and the complainant has created the documents. Further it is not possible to pay the amount of Rs.15,00,000/- within 3 days and cheques are issued on the same day and the accused has issued reply notice to the Complainant Counsel and taken contention that, they have not received the loan amount and CC.No.26080/2011 is not known to the accused. Further argued that, the General Power of Attorney 10 SCCH -19 CC.No.26080/2011 holder is not a proper person to give evidence as per the complaint and General Power of Attorney holder admitted that not know the transaction. Hence, the evidence of General Power of Attorney Holder is not considerable. Further argued that, the Complainant has failed to prove the issuance of Cheques for repayment of loan and hence the question of the offence punishable U/sec.138 of N.I. Act does not arise. In support of their arguments, the counsel for the Accused has cited following Judgments:
1. 2011(4) Crimes 158 (Kerala)
2. 2007 Crl.L.J. 3124 (Kerala)
3. 2013(1) DCR 390 (Kerala)
4. 2016 Crl.L.J. 2299 (Madras)
5. 2012(2) DCR 406 (P & H)
6. AIR 2009 SUPREME COURT 422 (S.C.)
7. 2017(2) DCR 740 (Kerala)
8. 2015(2) DCR 99 (Bombay)
9. 2012(1) DCR 385 (Kerala)
10. 2013(2) DCR 427 (Kerala)
11. 2008 Crl. L.J. 434 (S.C)
12. 2015 (3) DCR 132 (P & H)
13. 2015(1) DCR 642 (Karnataka)
14. 2015(1) DCR 5 (S.C.)
15. 2012 (2) DCR 504 (Bombay)
16. (2004) 2 Supreme Court Cases 236,
17. AIR 2005 Supreme Court 439, and
18. AIR 1999 Supreme Court 1441.
11. I have perused the documents produced by the Complainant it appears that, the cheques Ex.P1 to 3 are 11 SCCH -19 CC.No.26080/2011 belongs to the account of Accused and one agreement is produced with respect to receipt acknowledgment-cum- repayment agreement. The accused has taken specific contention that, the Complainant has taken blank cheques with forcibly and also obtained the signatures on the cheques. It is clearly admitted that the signature of the cheques are belongs to the accused, but the question is raised that, Whether said cheques are issued for the purpose of repayment of hand loan and either complainant nor accused were having the capacity to lend loan amount or borrowed the said amount. It is admitted fact that, the Accused is a Barber by Profession and running a Saloon shop. The complainant has stated that for the purpose of improving and extending the business the accused need loan amount and also requested to lend the amount. But as per the admission in the cross examination of the complainant the accused was vacated the shop. Therefore, how can it possible to improve and extending the business in the said shop.
12. It is pertain to note that, though the complainant has produced the bank account extract and drawing amount from the bank, but there is no recitals about payment of the said amount to the accused with regarding to hand loan. Therefore, mere drawing amount 12 SCCH -19 CC.No.26080/2011 from the bank is not sufficient proof about lending amount to the accused, the loan amount is 15 lakhs, Why the Complainant has not paid the amount through bank account to the name of accused. In this regard, the defence counsel has relied one Judgment reported in 2013(1) DCR 390 in the case of Rajeev V State of Kerala the Hon'ble Kerala High Court it is held that;
"Negotiable Instruments Act 1881-section 138- Determination of offence -held-producing pass book to show that the disputed amount was withdrawn from his account is not sufficient to hold that the same amount was handed over to accused".
13. The counsel of the accused vehemently argued that, the complainant is admitting the writings on the cheques in his handwriting and also the complainant has admitting the accused was tenant under his father building and as per the Ex.P.19 the Bank Account Statement is not belong to the complainant, hence the said account statement not corroborated with the evidence of the complainant. There is no legally recoverable debt and the accused is not capable to borrow the loan amount of Rs.15,00,000/- each cases is total Rs.30,00,000/-. Hence the cheque is not issued by the accused for discharge of the legally recoverable debt. Therefore it cannot be taken the presumption under 13 SCCH -19 CC.No.26080/2011 Section 139 of N.I. Act with regarding the issuance of cheque for discharge the legally liability.
14. I have gone through the evidence of the complainant in the cross-examination, the complainant is admitting that, accused was the tenant under their shop, hence he know to him. Further admitting that, the accused has running the cutting saloon Shop. Further the complainant is admitting that, the loan amount of Rs.15,00,000/- paid to the accused on cash and it is taken from the bank account and given the hand loan, but in support of the source of income, the complainant has not produced any documents. Though the complainant has produced one bank account statement, but the said statement was not belongs to the account of the complainant. After perusal of the Ex.P.19, the said account statement is in the name of K.B. Constructions. Therefore the said account statement is not relied for the purpose of source of income and lend the amount to the accused as hand loan. It is rightly pointed out by the defence counsel that in the year 2008 the amount of Rs.15,00,000/- is the big amount. The complainant has not offered any interest on said loan amount. It is pertain to note that, the accused is only known to the complainant as he is the tenant under their shops and 14 SCCH -19 CC.No.26080/2011 also he is the customer to the accused. Hence there is a doubt created that how can it possible to give the said big amount to the accused without any rate of interest. Further the complainant has failed to prove his source of income and nothing has been elicited from the mouth of the accused.
15. The accused being barber running the hair cutting saloon and also the complainant has failed to produce any document with respect of the accused is having the capacity to borrowed the loan amount of Rs.15,00,000/-. Though the complainant counsel has argued that for the purpose of proving the transaction, the accused has executed one repayment agreement, but the said agreement is only after borrowing the amount and the said agreement was created on 25.08.2009. The complainant has stated that he lend the amount to the accused on July 2008. Hence the said agreement i.e., Ex.P.4 is not concerned to the transaction of the loan amount. It is only to receipt of acknowledgement-cum- repayment of the agreement. It is pertain to note that, the said agreement shows the cheque numbers and amount and also date of the cheques. It disclose that, within 4 days, the accused has given the three cheques 15 SCCH -19 CC.No.26080/2011 to the complainant for the total amount of Rs.15,00,000/-. The accused being the barber and running the cutting shop, how can it possible to arrange the said amount within 3-4 days. Therefore it creates a doubt about the issuance of cheques for the purpose of repayment of the legally recoverable debt. Therefore mere issuance of cheques is not sufficient to prove the taken the presumption under Section 139 of N.I. Act.
16. The complainant has admittec in his cross- examination that, the writings on the said cheques in his hand, except the signatures, remaining all writings were written by the complainant. Therefore it is clear that, the said cheques were not written by the accused and proved that written by the complainant himself. Though the complainant has taken the contention that, on the instruction of the accused has written the cheques, but as per the submission made by the defence counsel that, another one case was filed by one Jayachandra Reddy against the accused for the offence punishable U/Sec. 138 of N.I. Act with regarding the dishonor of the three cheques in CC No.26370/2011. After perusal of the said case, the complainant Jayachandra Reddy was also registered the case against the same accused for 16 SCCH -19 CC.No.26080/2011 dishonor of three cheques total amount of Rs.15,00,000/-. In the said case, the writings of three cheques were written by the complainant herein this case R.K. Ravi. In support of the said contention, the accused has send the cheques of both cases to the truth lab. The laboratory was given the report with effect that in both cases all the writings on the said six cases are written by the same person. Therefore it is clear that, the complainant herein R.K. Ravi has written all the six cheques including the cheques presented in CC No.26370/2011 filed by the Jayachandra Reddy. The complainant has not denied the lab report and also not filed any objection to the said report. Hence it is clearly proved that, the writings on the cheques which are produced in CC No.26370/2011 are also written by this complainant and the said case is also filed by this complainant through the another one Jayachandra Reddy against the accused.
17. I have perused the documents produced by the accused it disclose that, the accused is the tenant under the father of the complainant and same is admitted by the complainant. After perusal of the bank pass book of the accused, there is no any heavy transaction by the 17 SCCH -19 CC.No.26080/2011 accused and also the complainant has not produced any documents with regarding the source of income of the accused. Hence the accused is not having the capacity to borrowed the loan amount of Rs.15,00,000/- from the complainant. After perusal of the materials in CC No.26370/2011, the complainant has alleged that, the accused was borrowed the amount of Rs.15,00,000/- within January 2008 to May 2008 and also the accused has given the three cheques each Rs.5,00,000/- on 25.02.2010 for total amount of Rs.15,00,000/-. Therefore it is clear that in the year 2008 within 6 or 7 months as per the contention of the complainant in both cases, the accused borrowed the total amount of Rs.30,00,000/- from the both complainants and also the accused has given the three cheques each to the complainant within six days for total amount of Rs.30,00,000/-. Therefore one thing is clear that in both cases, the accused was not having the capacity to borrow the amount of Rs.30,00,000/- from the complainant and he is not having the capacity to repay the said amount within 6 to 7 days. As per the lab report the writing of all the six cheques in both cases, except signature, entire writings were written by the one person.
18SCCH -19 CC.No.26080/2011
18. The complainant has not challenged the lab report. Though he has denied the writings of the cheques produced by the complainant in CC No.26070/11, but as per the lab report, it is clear that the said cheques were also written by this complainant. As per the allegation made by the accused that, the complainant R.K. Ravi has obtained the signatures on the cheques by forcibly and also in the blank stamp papers. After considering the writings which were written by the complainant herein this case, it is presumed that the complainant has taken the blank cheques from the accused and thereafter the complainant was written the amount on the said cheques. Therefore mere produced the cheques and signatures were admitted by the accused is not conclusive proof to establish the issuance of cheques for discharge the legally recoverable debt. In this regard, the accused counsel relied the Judgment of Hon'ble Kerala High Court in the case of Santhi V/s Mary Sherly reported in 2011(4) Crimes 158(Ker.), it is held that:
(i) Negotiable Instrument Act, 1881 - Section 138-Dishonour of cheque-Contention raised by accused in prosecution under Section 138 that he issued a bland signed cheque will not amount to admission of execution of cheque-A signed bland cheque leaf is very often referred to as a blank cheque but strictly speaking it is not a cheque as defined under N.I. Act-It can be treated only as a 19 SCCH -19 CC.No.26080/2011 cheque leaf containing admitted signature of accused.
(ii) Negotiable Instruments Act, 1881 -
Section 138 read with Sections 5 and 6-Dishonour of cheque-Only overt act which makes a person liable for offence under Section 138 is drawing of cheque by him-Main factor to be proved by complainant to establish guilt of accused under Section 138 is that accused has drawn cheque-A person can be said to have drawn a cheque if he has made, prepared or created a cheque_If prosecution proves that accused has made or prepared or created a cheque which contains an order in writing under his signature, directing banker to pay a certain sum of money only to payee or bearer or to the order of a certain person, he can be said to have drawn the cheque-Absence of word "execution" in Section 138 is of no consequence-It is also not an excuse not to prove execution/drawing in a prosecution under Section
138.
(iii) Negotiable Instrument Act, 1881-Section 138-Dishonour of cheque-Fact that accused has drawn cheque, can be proved by any known method recognized by law-Mere production of a cheque or marking the same as an exhibit in a case will not prove that cheque is drawn by accused-Factum of drawing or execution of cheque has to be proved by evidence of person or persons who can courchsafe for truth of facts in issue-It can be proved by direct or circumstantial evidence, which is admissible in law.
(iv) Negotiable Instruments Act, 1881-Section 138-Evidence Act, 1872-Sections 45 and 73- Dishonour of cheque-Mere production and marking of cheque may only prove that a cheque 20 SCCH -19 CC.No.26080/2011 which contains an order in writing and a signature has come into existence-But it will not further prove that it is created drawn or executed by accused-In absence of direct evidence relating to writing and signature in document, execution may be proved by examination of a person who is qualified and competent to express his opinion, as to handwriting and signature, by acquaintance or otherwise-Evidence of a handwriting expert under Section 45 may be obtained to prove authorship of writing and signature in the document-Court may also reach a conclusion on authorship of handwriting and signature by comparison.
(v) Negotiable Instruments Act, 1881-Section 138-Evidence Act, 1872-Sections 45 and 73- Dishonour of cheque-In cases in which only circumstances evidence is produced before court to prove drawing of cheque, court shall follow the mode adopted for appreciation of circumstantial evidence, to enter a finding whether cheque is drawn by accused-If any circumstance proved in the case can be explained on any hypothesis which is inconsistent with assertion of drawing of cheque by accused, accused cannot be said to have drawn cheque-For a successful prosecution of offence under Section 138, complainant must allege and prove that cheque was drawn or executed by accused-In absence of proof of such fact, accused cannot be convicted for offence under Section 138.
19. Further the Hon'ble High Court, Kerala held in the case of Kamalammal V/s C.K. Mohanan and Another reported in 2007 CRI. L.J. 3124, it is held that:
21SCCH -19 CC.No.26080/2011 (A) Negotiable Instruments Act (26 of 1881), Ss.
138, 139 - Dishonour of cheque - Presumption under S. 139 - When available - S. 139 applies only if "cheque" is established to be of nature stated in S.138 - Court cannot presume that cheque is "issued/executed/drawn" by accused - Issuance of blank cheque - Cannot give rise to presumption that implied authority is given to holder of cheque to fill it up towards discharge of debt etc. Section 139 applies only if it is established that the cheque is of the nature stated to in S.
138. Such a cheque must necessarily be one which satisfied the definition of cheque under S.6 read with S. 5 of the Act. It must contain an order in writing to pay to a certain person a certain sum of money only etc., as defined in the Act. There is nothing in S. 139 to show that the prosecution is exonerated from proving that the cheque falls within the definition of the cheque under the Act. The cheques produced in all the cases under S. 138, ordinarily contain an order in writing. But, that does not mean that the Court shall immediately come to a conclusion that such cheques satisfy the definition under the Act. In cases where the accused raises a plea that the cheque was a blank signed one when it was handed over or received by another person, the Court will have to scan through the evidence and material placed before it and decide whether the complainant 'proved' that the accused has drawn a cheque of the nature defined under the Act or, whether it was only a signed blank cheque, which does not satisfy the definition of a cheque under the Act, when it was handed over. The former has to be proved by the prosecution, just as in any 22 SCCH -19 CC.No.26080/2011 criminal prosecution whereas, the latter need only be probabalised, as in a defence case. The degree of proof certainly differs.
In the absence of specific allegation in the instant case either in the complaint or in evidence or in any of the materials on record that the blank cheque allegedly issued was given with an authority to fill up the same etc., the Court declined to draw an inference of implied authority etc.
20. Further in the case of T.G. Polymer and Company V/s K.s. Shaji and Others reported in 2017(2) DCR 740, the Hon'ble Kerala High Court it is held that, Section 138 of N.I. Act has Execution of cheque-Scope-Held-Merely because cheque in question bears signature of accused or just because signature is admitted, court cannot find execution against accused as conscious execution of a cheque is a different matter-Since execution of cheque is not proved, acquittal is just and proper.
Further in the case of Shri. Gajanan Lobaji Kitturkar V/s Smt. Sumati S. Bhandari reported in 2015 (2) DCR 99, the Hon'ble Bombay High Court it is held that:
Negotiable Instruments Act, 1881-Section 138 and 139-Criminal Procedure Code, 1973-Section 378- Conclusive proof-Scope-Held-Merely because a cheque is issued, the same is not a conclusive proof of fact that the same was issued for discharge of any legally endorceable debt or 23 SCCH -19 CC.No.26080/2011 liability-Prosecution must prove the guilt of accused beyond all reasonable doubts.
21. In the case of John K. John V/s Tom Varghese and Another reported in 2008 CRI.L.J. 434, Hon'ble Supreme Court it is held that, Negotiable Instruments Act Sectin 138 and 139 - Dishonour of cheque - Discharge of debt - Rebuttal of presumption under S. 139 - Court can take notice of conduct of parties - Respondent alleged to have borrowed huge sum from appellant- complainant despite suits for recovery of defaulted amount filed against him by appellant - No document executed - Amount advanced carrying no interest - Finding of fact by High court that respondent did not issue cheques in discharge of any debt and discharged burden of proof cast on him under S. 139 - Being not perverse cannot be interfered with under Art.136 of Constitution of India.
In the case of Manjit Singh V/s Kanta Verma reported in 2015(3) DCR 132, Hon'ble Punjab and Haryana High Court it is held that, Section 138 of Negotiable Instrument Act, Dishonour of cheque-Acquittal-Validity-Held-since there is no satisfactory explanation for source of funds out of which such alleged loan amount was acquittal of accused is justified-no interference - petition is dismissed.
24SCCH -19 CC.No.26080/2011 In the case of K. Subramani V/s K. Damodara Naidu reported in 2015(1) DCR 5, the Hon'ble Supreme Court it is held that, Negotiable Instruments Act 1881 - Sectin 138
- Dishonour of cheque-Acquittal-Legality-Held- Where complainant had no source of income to lend such huge amount to accused and failed to prove that there is legally recoverable debt payable by the accused to him then acquittal is just and proper.
In the case of John K. Abraham V/s Simon C. Abraham and Another reported in 2014(2) SCC 236. Hon'ble Supreme Court it is held that, Negotiable Instrument Act, Section 138, 139 and 138 - Dishonour of cheque - Drawing presumption under S. 118 R/w S. 139 -
Prerequisites for, when cheque is for repayment of a loan/advanced money - Proof required on the part of complainant - Held, in order to draw presumption under S. 118 R/w S. 139 burden lies on complainant to show: (i) That he had the requisite funds for advancing the sum of money /loan is question to accused.(ii) That the issuance of cheque by accused in support of repayment of money advanced was true, and iii) That the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant - In present case agreed while issuing cheque in favour of complainant - In present case, complainant not aware of the date when substantial amount of Rs.1,50,000/- was advanced by him to appellant-accused - Respondent complainant failed to produce relevant documents in support of the 25 SCCH -19 CC.No.26080/2011 alleged source for advancing money to accused - Complainant also not aware as to when and when the transaction took place for which the cheque in question was issued to him by accused - Complainant also not sure as to who wrote the cheque and making contradictory statements in this regard - In view of said serious defects/lacunae in evidence of complainant, Judgment of High Court reversing acquittal of accused by trial court, held, was perverse and could not be sustained - Acquittal restored.
22. After perusal of the evidence of the complainant and materials available on hand one thing is clear that, all cheques in both cases were written by the complainant R.K.Ravi. Though the complainant has deposed that on the instruction of the accused he has written the cheques, but in support of the said contention, the complainant has not produced any documents and also not adduced any oral evidence. It is pertain to note that, the counsel of the complainant nothing has been elicited from the mouth of the accused with regarding the issuance of cheques for discharge the legal liability or legally recoverable debt of Rs.15,00,000/-. Though the complainant has produced one agreement, but the said agreement is not pertain to lending the loan amount. It is only to receipt acknowledgement for repayment of the amount and issuance of cheques in favour of the 26 SCCH -19 CC.No.26080/2011 complainant. Therefore said document is not helpful to prove the loan transaction and the complainant is paid the amount to the accused as stated in the complainant.
23. As discussed above, the accused is being the Barber by Profession, he has no sufficient source of income and capacity to borrow the total loan amount of Rs.30,00,000/- within 5 to 6 months and also he is not capable to repay the said amount within the month by issuance of cheques. Mere there are some discrepancy in the cross-examination of the accused is not a sufficient grounds to prove the loan transaction between complainant and accused. After considering the writings on the said cheques by the complainant R.K.Ravi, it is presumption that, the accused has not issued the cheques for repayment of the amount of Rs.15,00,000/- each cases within one month. Further it is pertain to note that for the purpose of prove the source of income, the complainant has not produced any document. Though they have produced one bank account statement, but there is no direct evidence with regarding the source of income to the complainant and the complainant has not paid the huge amount through bank transaction. The alleged loan amount is huge amount, hence the 27 SCCH -19 CC.No.26080/2011 payment by cash is doubtful. Further it is pertain to note that, the complainant has given the hand loan without any interest, it cannot possible to pay the heavy amount without interest. Further the accused is not the close relation to the complainant and he is known as a barber and he was tenant under the building of father of the complainant. Therefore keeping in view the contentions urged by both sides and the principles laid down in the judgments referred supra, there are no any materials to prove the presumption drawn against the accused under Section 138 of N.I. Act with regarding the issuance of cheques to the complainant for discharge the legally liability and same were dishonored thereby committed an offence under section 138 of NI Act. Hence, I given the answer to the point No.1 in the Negative.
24. Issue No.2: As discussed in the point No.1, the complainant is failed to prove that, the accused has issued the cheques for discharge the liability. Hence the complainant is not entitled to claim any compensation amount from the accused. Hence, I given the answer to the point No.2 in the Negative.
28SCCH -19 CC.No.26080/2011 25 Point No.3: In view of the above discussion, I proceed to pass the following:
ORDER Acting U/sec.255(1) of Cr.P.C., accused is acquitted for the offence punishable U/Sec.138 of N.I. Act.
Bail bond executed by the accused stand cancelled and refund the cash surety to the accused after appeal period is over.
(Dictated to the Stenographer, computerized and transcribed by her, thereof corrected by me and then pronounced in the open court on this the 2nd day of June 2018).
(DYAVAPPA. S.B.) XV ASCJ & XXIII ACMM BANGALURU Annexure Witnesses examined for Complainant:
PW.1 : R.K. Ravi Documents marked for complainant:
Ex.P.1 : Three Cheques,
29
SCCH -19
CC.No.26080/2011
Ex.P.4 : Receipt Acknowledgment cum
Repayment Agreement
Ex.P.5-7 : 3 Bank Cheque Return Memos,
Ex.P.8 & 9: 2 Debit advises,
Ex.P.10 : Copy of the legal notice
Ex.P.11-12 : 2 Postal receipts
Ex.P13 : U.C.P
Ex.P.14 : Postal Acknowledgement
Ex.P.15 & 16: 2 returned postal covers Ex.P.17 : Reply notice Ex.P.18 : Copy of the tenancy agreement Ex.P.19 : Statement of Account.
Witnesses examined for defence:
DW.1 : Anand Kumar
Documents marked for defence:
Ex.D.1 : Lease Agreement
Ex.D.2 & 3: 2 - Draft Acquisition Form
Ex.D.3 : 3 Cheque return memos
Ex.D.4 : Bank Pass Book
Ex.D.5 : Copy of Order Sheet in
CC No.26370/2011
Ex.D.6 : Copy of Complaint
Ex.D.7 : Copy of Chief-examination of PW.1
Ex.D.8 : Copy of Receipt Acknowledgement-cum-
Repayment agreement,
30
SCCH -19
CC.No.26080/2011
Ex.D.9 : Copy of Legal notice
Ex.D.10 to 12: 3 - Copies of Cheques
Ex.D.13 : Copy of reply notice
Ex.D.14 : Stop payment letter
(DYAVAPPA. S.B.)
XV ASCJ & XXIII ACMM