Bangalore District Court
Mahesh.S. S/O Srinivas.N vs A.Chalrles S/O Late Anand Raj on 15 February, 2017
IN THE COURT OF THE LX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
(CCH-61)
Dated this the 15th day of February, 2017
:Present:
Sri S.K.Vantigodi, B.A., LL.B.,
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Crl. Appeal. No. 413 / 2016
Appellant :- Mahesh.S. S/o Srinivas.N.
Aged about 42 years
Working as Assistant
Machine Minder
At Government Central press Unit-2
R.V.College Post
Mysore Road
Bengaluru -560 059
Also at No.11/1, 4th Cross
Nagappa Street
Palace Guttahalli
Malleshwaram
Bengaluru-560 003.
(Sri M.S.Shankara Gulli, Advocate for appellant)
Vs
Respondent:- A.Chalrles S/o Late Anand Raj
Aged about 58 years
Working as Senior compositor
At Government Central press Unit-2
R.V.College Post
Mysore Road
Bengaluru -560 059
(Sri Rajanna, Advocate for respondent)
2 Crl.A.413/2016
JUDGMENT
This appeal is filed U/sec. 374(3) of Cr.P.C., by the appellant, praying to set aside the judgment of conviction and sentence passed by XXII Addl. CMM, Bengaluru in CC No.17188/2015 dt.04.03.2016 for the offence punishable U/Sec. 138 of Negotiable Instruments Act.
2. The appellant was the accused and respondent herein was the complainant before the trial Court and they are referred to as per the ranks assigned to them before the lower court.
3. The brief facts which give rise to this appeal can be stated as under:-
The complainant and accused were known to each other as they are working in the same department. In view of the request made by the accused to advance hand loan of Rs.3,00,000/-, the complainant paid hand loan of Rs.Three Lakhs in the month of March 2014 to the accused, who agreed to repay the same within six months. Thereafter, the accused towards repayment of said loan liability issued cheque dt.10.6.2015 for Rs.Three lakhs in favour of complainant. On its presentation, said cheque came to 3 Crl.A.413/2016 be dishonoured with an endorsement as funds insufficient. Then the complainant got issued legal notice to accused, which despite service of notice, neither replied nor repaid the cheque amount.
Then the complainant filed the complaint against the accused for offence punishable U/sec. 138 of Negotiable Instruments Act.
On filing of such complaint, the learned Magistrate took cognizance against the accused for offence punishable U/sec. 138 of Negotiable Instruments Act and secured presence of accused before court. The accused denied to plead guilty of offence alleged. Then the complainant examined himself as PW1 and got marked documents as per Ex.P.1 to 8. On recording statement of accused U/s.313 of Cr.P.C., the accused examined himself as DW1 and no documents are marked on his behalf. The learned Magistrate on the hearing arguments of both sides, proceeded to convict the accused U/s.265 of Cr.P.C., for offence punishable U/sec. 138 of Negotiable Instruments Act and sentenced him to pay a fine of Rs.3,000/- and in default of payment of fine amount, the accused shall undergo S.I. for a period of two months and further awarded compensation of Rs.6,00,000/- i.e., double the cheque amount with simple interest at the rate of 6% p.a. from the date of cheque till realization of the 4 Crl.A.413/2016 same and the same shall be paid to the complainant by the accused within 30 days from the date of the order and in default of payment of compensation amount, the accused shall undergo S.I. for a period of one year. It is this judgment of conviction and sentence, which is challenged by the appellant / accused by means of this appeal on the following grounds:-
The impugned judgment of conviction and sentence is opposed to the settled principles of law, facts and probabilities of the case. The learned Magistrate failed to appreciate the oral and documentary evidence available on record in proper perspective. The learned Magistrate completely lost sight of the cardinal principles of evidence act and appreciation of oral and documentary evidence. The learned Magistrate failed to assign any legal grounds to arrive such a conclusion. The impugned judgment is bereft of legal reasons and same is non-est in law. The learned Magistrate has completely overlooked the material admissions elicited in the cross examination of PW1. The learned Magistrate failed to attach any importance to the defence set up by the accused.
5 Crl.A.413/2016 The learned Magistrate has not applied his judicial mind and it has resulted in miscarriage of justice. The procedure adopted by the learned Magistrate in passing impugned judgment is erroneous and unknown to law. The learned Magistrate failed to notice that Sec.265 of Cr.P.C., does not authorize the trial Court to award any compensation.
The procedure adopted by the learned Magistrate in awarding compensation to the tune of double the cheque amount without assigning any legal reasons is highly illegal and arbitrary. The learned Magistrate erred in not holding that the respondent /complainant had no financial capacity to lend such loan amount of Rs.3,00,000/- to the accused. The learned Magistrate erred in appreciating the contents of Ex.P.8 i.e., bank statement in proper perspective. The learned Magistrate failed to notice that the contents of complaint do not reveal as to the date of alleged loan transaction. The learned Magistrate erroneously relied on the case of complainant resulting in miscarriage of justice.
6 Crl.A.413/2016 The learned Magistrate erred in not properly appreciating defence set up by the accused, who had availed only a sum of Rs.50,000/- by giving blank signed cheque as security. The learned Magistrate erred in not attaching any importance to the facts elicited in the cross examination of PW1 which reveal as to the borrowal of Rs.40,000/- from one Sunil, who is his friend. The learned Magistrate failed to notice that the name of said Sunil and date of loan transaction have not been revealed in the complaint.
The learned Magistrate though rejected the application under Sec.311 of Cr.P.C., filed by complainant to examine said Sunil as his witness, erred in not holding that non disclosure of name of Sunil as witness in the complaint, creates doubt as to the alleged loan transaction. The impugned judgment of conviction and sentence is illegal, arbitrary and one sided and hence, prayed to set aside the impugned judgment of conviction and to acquit the appellant for the offence punishable U/Sec. 138 of Negotiable Instruments Act by allowing the appeal.
7 Crl.A.413/2016
4. After filing of this appeal, notice duly served on the respondent who made his appearance through a counsel. The trial Court records are secured.
5. Heard the arguments of learned counsel for appellant and learned counsel for respondent, who submitted memos along with citations.
6. Perused the records.
7. In the light of the contentions taken up in the memorandum of appeal, the points that arise for my determination are as follows;
1) Whether the impugned judgment of
conviction is opposed to settled
principles of law, facts and probabilities of the case?
2) Whether the learned Magistrate erred in not properly appreciating the defence set up by the accused?
3) Whether the learned Magistrate erroneously relied on Ex.P.8 to believe the case of the complainant?
8 Crl.A.413/2016
4) Whether the learned Magistrate erred in not properly appreciating the material facts, elicited in the cross examination of PW1?
5) Are there any grounds to interfere with
the order of conviction and sentence?
6) What order?
8. My findings on the above points are as follows:
Point No.1 to 5 : In Affirmative Point No.6 : As per final Order for the following:-
REASONS
9. Point No.1 to 5:- All these points are taken together for discussion for the sake of convenience and to avoid repetition of facts.
10. I have carefully gone through the contents of appeal memo, impugned judgment and the trial Court records. It is the specific case of the complainant that himself and accused are known to each other very well since they are working in same department. Under such acquaintance, accused borrowed a sum of Rs. Three Lakhs from him in the month of March 2014 agreeing to repay the same within six months. The accused then issued a 9 Crl.A.413/2016 cheque dt.10.6.2015 for Rs.Three lakhs towards repayment of said loan liability. When the cheque was presented for encashment it came to be dishonoured for want of sufficient funds in the account of accused. Then the complainant got issued legal notice to accused, who despite service of legal notice, neither replied the same nor repaid the cheque amount as such prayed to take legal action against accused for the offence punishable U/sec. 138 Negotiable Instruments Act.
11. On the other hand, it is the defence set up by the accused that under his acquaintance with complainant, once he had borrowed a sum of Rs.50,000/- in the month of August 2014 and for the purpose of security, he had issued a blank signed cheque i.e., Ex.P.1 in favour of complainant only as security. Though he repaid the said loan amount of Rs.50,000/- with 8% interest in the year 2015, the complainant failed to return the said cheque which was given as security and thereby misused the same and got filed this false complaint.
12. It is also the case of the accused that since he personally contacted the complainant after receipt of legal notice, he did not choose to give any reply to the notice. As such prayed 10 Crl.A.413/2016 to dismiss the complaint since there was no such legally recoverable debt or liability due towards complainant by accused.
13. In the light of the rival contentions of both the parties, I have carefully appreciated the oral and documentary evidence let in by both the parties to answer the points in controversy. Obviously the burden is on the complainant to prove that the cheque in question i.e., Ex.P.1 was issued by the accused towards repayment of loan amount of Rs.3,00,000/- which was advanced in the month of March 2014.
14. In this regard, the complainant got himself examined as PW1, who in his evidence has virtually reiterated the averments of complaint and got marked the documents i.e., cheque in question, bank endorsement, copy of legal notice, postal receipts and acknowledgements as per Ex.P.1 to 7.
15. In the cross examination he states that he knows the accused since last 12 years as they are working in the same department. He is getting monthly salary of Rs.34,000/- and odd. He used to receive net salary of Rs.28,800/- after deductions. He used to save Rs.500/- p.m. 11 Crl.A.413/2016
16. He states that he paid Rs.70,000/- on 10.3.2014, Rs.80,000/- on 12.3.2014, Rs.80,000/- on 13.3.2014 and 70,000/- on 20.3.2014 in all Rs.3,00,000/- to accused in cash. He got withdrawn the said amount from ATM to pay the said amount to the accused. He admits that he has not stated the details of payment of loan amount either in his complaint or in the legal notice Ex.P.3.
17. At this stage, the bank statement pertaining to the account of complainant with State Bank of Mysore for the months of February and March 2014 was marked as per Ex.P.8.
18. He states that he has not taken any security from the accused for having advanced loan amount of Rs.3,00,000/- since it was given under friendship to the accused. He states that the writings found on Ex.P.1 pertain to accused. He does not know whether there is a difference in the ink used for putting signature and the hand-writings found on Ex.P.1.
19. He states that on 19.3.2014 he withdrew Rs.40,000/- and borrowed a sum of Rs.40,000/- from his friend Sunil and then paid in all Rs.80,000/- to the accused on 20.3.2014. He denied the suggestion that as per the bank statement, he made bank 12 Crl.A.413/2016 transactions with his account on the previous dates of alleged payment of loan amount.
20. He states that the accused requested him to advance loan amount on 8.3.2014. He had no such money with him on that day. However, he had money with his bank account. He states that to avoid delay if loan amount is paid through cheque, he paid loan amount in cash to the accused. He got withdrawn Rs.30,000/- and 40,000/- from ATM on 8 and 9th March 2014 and paid the same to the accused on 10.3.2014. He had knowledge in bank transactions since 2005.
21. He states that accused borrowed hand loan amount from for saree business of his wife and for the education of his son and to take back the ornaments which was pledged by sister of his wife and also for his personal needs. He requested the accused for repayment of loan amount in the month of October 2014. Though he requested the accused for return of the loan amount till March 2015, the accused did not repay the same. He had not issued any notice to accused during that period.
22. Accused issued cheque to him on 8.6.2015 by putting date as 10.6.2015 on Ex.P.1. He is an income tax assessee. He 13 Crl.A.413/2016 has not shown about the payment of loan amount to accused in his income tax returns. He availed Rs.40,000/- as hand loan from his friend Sunil. He denied the suggestions that the cheque in question was issued in blank as security towards borrowal of loan amount of Rs.50,000/- in March 2014. He denied the suggestion that he got misused the cheque which was issued in blank as security for the hand loan amount of Rs.50,000/-. He denied the suggestion that he is doing money lending business. He admits that after the said cheque was bounced back, the accused met him after service of legal notice. He admits that he used to meet the accused often in the office since they are working in the same department. He denied the other suggestions.
23. A careful appreciation of evidence of PW1 coupled with contents of Ex.P.1 to 8 goes to show that the complainant has not disclosed all the material facts in the complaint or in the legal notice with regard to alleged hand loan transaction. But, those facts are disclosed for the first time in his cross examination. No reasons are assigned by complainant as to why those material facts are not pleaded either in complaint or in legal notice.
14 Crl.A.413/2016
24. It is pertinent to note that complainant simply averred in the complaint and legal notice that he advanced hand loan amount of Rs.3,00,000/- to the accused in the month of March 2014. For the first time, accused disclosed the details in his cross examination as to the dates of payment of loan amount in four installments i.e., on 10th, 12th, 13th and 20th of March 2014.
25. The complainant has not explained as to why he did not disclose the exact dates of payment of hand loan amount in four installments either in the complaint or in the legal notice. Admittedly there was no hurdle for complainant to disclose all these important facts in complaint which is the foundation of case. So, non disclosure of these material facts creates doubt as to the alleged hand loan transaction as well as the existence of legally recoverable debt due towards complainant by accused.
26. Furthermore, the PW1 made a material improvement in his cross examination by stating that in view of shortage of funds with him as on that date, he had borrowed a sum of Rs.40,000/- from his friend Sunil so as to advance portion of loan amount to the accused. This fact does not find place either in the complaint or in the legal notice. Even the complainant has not 15 Crl.A.413/2016 chosen to examine said Sunil as his witness to appreciate his case. As such, this aspect of the case also creates doubt as to the payment of loan amount in installments by complainant to accused for want of specific pleadings in the complaint.
27. Moreover, the complainant in his cross examination has stated that he paid loan amount on 10th, 12th, 13th and 20th of March 2014 to the extent of 70,000/-; 80,000/-; 80,000/- and 70,000/- respectively in cash to the accused.
28. In this regard, the complainant mainly relied upon Ex.P.8 i.e the bank statement which is got produced during the course of cross examination. If we carefully scrutinize the contents of Ex.P.8, it reflects that an amount of Rs.40,000/- was withdrawn through ATM on 10.3.2014. Whereas, PW1 states that he paid Rs.70,000/- to accused on 10.3.2014. In this context, he comes up with an explanation that he got withdrawn a sum of Rs.40,000/- on 9.3.2014 through ATM. But this fact is not stated by complainant in his complaint.
29. Similarly he states that he paid Rs.80,000/- to the accused on 12.3.2014. Whereas the bank statement reveals that the complainant got withdrawn 40,000/- on 12.3.2014 and 16 Crl.A.413/2016 Rs.30,000/- on 13.03.2014. If that is true, the payment of Rs.80,000/- on 12.3.2014 to accused becomes doubtful. However, he comes up with an explanation that he got withdrawn Rs.40,000/- on 11.3.2014. But the same is not stated in the complaint.
30. Similarly PW1 states that he paid Rs.80,000/- on 13.3.2014 to accused. But in Ex.P.8, only an amount of Rs.30,000/- was withdrawn from the ATM. However, he has come up with an explanation that he got withdrawn balance amount on earlier dates. But the same is not narrated in the complaint.
31. Similarly he states that he paid Rs.70,000/- as final installment to the accused on 20.3.2014. But no amount was withdrawn from the account of the complainant through ATM on 20.3.2014. However, he comes up with an explanation that he withdrew Rs.40,000/- on 19.3.2014 and borrowed a sum of Rs.40,000/- from his friend Sunil and in all paid Rs.80,000/- to the accused on 20.3.2014. But as per the earlier portion of his evidence, he paid only Rs.70,000/- on 20.3.2014 to the accused, but not Rs.80.000/-. If this is true, then the evidence of PW1 that 17 Crl.A.413/2016 he withdrew Rs.40,000/- on 19.3.2014 and borrowed a sum of Rs.40,000/- from his friend Sunil and in all paid Rs.80,000/- to the accused on 20.3.2014, becomes doubtful.
32. So, having regard to all these facts and circumstances of the case and crucial facts elicited in the cross examination of PW1 and improvements made in the evidence of PW1 during the course of cross examination, it can be said that the very payment of loan amount to accused in four installments is doubtful and the facts elicited in cross examination of PW 1, create doubt as to the alleged loan transaction between the complainant and accused as well as issuance of Ex.P 1 by accused towards discharge of legally recoverable debt or liability due to complainant.
33. If really the complainant is sure about the fact that he advanced loan of Rs.3,00,000/- to the accused in four installments in the month of March, 2014, he would have certainly narrated all those dates wherein he paid such amount of Rs.3,00,000/- in installments. Furthermore, the complainant made an improvement in his evidence by stating that he had received Rs.40,000/- by way of loan from his friend Sunil. But this being material fact is not 18 Crl.A.413/2016 averred in the complaint. Even the said witness by name Sunil is not examined to appreciate the say of PW1. Therefore, all these facts elicited from the mouth of PW1 during the cross examination would create doubt as to the issuance of Ex.P.1 towards discharge of legally recoverable debt.
34. Further, if we carefully go through the contents of Ex.P.1 i.e., cheque in question, it clearly indicates that except putting signature on Ex.P.1, the other writings found in Ex.P.1 do not pertain to accused. In this regard, PW 1 in his cross examination states that he does not know who has written Ex.P.1 and who has filled up cheque. So, this aspect of the case also creates doubt as to the issuance of Ex.P.1 by accused towards repayment of alleged loan amount of Rs.3,00,000/-. Merely because the accused has not replied legal notice, it does not come help the complainant to contend that the cheque in question was issued towards discharge of legally recoverable debt or liability.
35. However, PW1 admits in cross examination that after service of legal notice, the accused had personally met him and enquired. It shows that accused enquired complainant and 19 Crl.A.413/2016 objected for issuance of said legal notice and disputed loan transaction. Therefore, the complainant cannot contend that non- replying the legal notice by the accused would prove the loan transaction.
36. Further, PW1 states that he has not shown about loan amount in his income tax returns. Even he has not taken any security from the accused for having advanced such huge loan amount of Rs.3,00,000/-. So, all these facts coupled with admissions elicited from the mouth of PW1 certainly indicate that the cheque in question which was given in blank with signature, must have been misused by the complainant. Such being the fact, it can be concluded that the accused has successfully rebutted the presumption available under Sec.139 of Negotiable Instruments Act in favour of complainant.
37. When the said presumption u/s 139 of N.I.Act is not available to the complainant, he has to prove his case against the accused under the principles of preponderance of probabilities. Herein this case, the complainant has not explained as to why he did not to disclose the details of alleged loan transaction as disclosed by him in the cross examination either in the complaint 20 Crl.A.413/2016 or in the legal notice. Even he has failed to prove that he got withdrawn such amount from ATM on very dates of alleged payment of loan in installments. Further, no document or receipt was taken by complainant for having advanced such huge hand loan amount to accused. Even he has not chosen to examine his friend Sunil to appreciate his case.
38. Therefore, looking into all these facts and circumstances of the case, I am of the view that the learned Magistrate lost sight of all these material aspects while appreciating the case of the complainant. The learned Magistrate even has not referred those facts elicited in cross examination while appreciating the evidence on record. Even learned magistrate has not attached any importance to those facts elicited in cross examination of PW 1.
39. Further, it is very unfortunate to note that the learned Magistrate has even not referred all these material facts while evaluating the evidence of PW1. The learned Magistrate erroneously proceeded to form an opinion that when the accused admits his signature on Ex.P.1, it is sufficient to believe the loan transaction. So, this approach of the learned Magistrate in 21 Crl.A.413/2016 erroneously believing the case set up by complainant is unsustainable and it has resulted in miscarriage of justice. Therefore, there are sufficient grounds to interfere in the impugned judgment of conviction and sentence.
40. On the other hand, the accused who stepped into witness box as DW1 has categorically deposed that he gave the blank signed cheque in the hands of complainant only as security while borrowing loan amount of Rs.50,000/- during August 2014. It is also his evidence that though he repaid the loan amount with interest in the year 2015, the complainant failed to return the cheque by stating that the said cheque was misplaced and to that effect a galata had occurred between them. Thereafter, the complainant got misused said cheque and filed false complaint. In the cross examination it is suggested that he had not obtained any receipt for having paid such blank signed cheque as security, but under the day to day circumstances, no such receipt will be taken. So, though DW1 is cross examined at length, no worth material is elicited from his mouth to disbelieve his evidence. Further, merely because accused had borrowed loan amount from several banks and his collegues, it does not mean that the cheque in question was issued towards discharge of loan liability.
22 Crl.A.413/2016 Therefore, the complainant failed to bring out any such circumstances to believe that the cheque in question was issued by accused towards repayment of hand loan amount. Moreover, the complainant has not offered any explanation as to why he did not obtain any security documents from accused while advancing such huge loan amount. Therefore, DW1 with stood the test of cross examination and his evidence is believable and acceptable one under the attending circumstances.
41. During the course of arguments, learned counsel for appellant vehemently argued that when the complainant failed to disclose the material facts with regard to payment of loan amount in installments and other particulars with regard to receiving an amount of Rs,40,000/- from one Sunil in the complaint, it creates doubt as to the issuance of EX.P1 as well as existence of any legally recoverable debt due towards complainant. In this regard the learned counsel for appellant referred to an authority reported in (2014)2 SCC 236 in the case of John K. Abraham Vs. Simon C. Abraham and Another wherein the Hon'ble Apex Court observed as under:-
23 Crl.A.413/2016 Debt, financial and Monetary Laws - Negotiable Instruments Act - Ss.118, 139 and 138 - Dishonour of cheque - Drawing presumption under Sec.118 r/w 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 in 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, 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 alleged source for advancing money to accused -
Complainant also not aware as to when and where the transaction took place for which the cheque in question was issued to him by accused - Complainant also not 24 Crl.A.413/2016 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.
42. On perusal of the above said authority, I am of the view that the ratio observed is aptly applicable to the case on hand. Herein this case also, the complainant has not disclosed when and where the loan amount has been paid to accused in installments. Even the complainant has not disclosed the alleged payment of loan amount on four dates as stated by him in the cross examination. Even, the complainant either in the complaint or in the legal notice, has not disclosed the particulars and details of payment of loan amount on different dates to the accused.
43. So, these facts clearly indicate that there are material lacunas and defects in the evidence of PW 1 to believe the case of complainant against accused. Further, in the above said authority, it is clearly observed by Hon'ble Apex Court that when the complainant is not sure as to when and where the loan 25 Crl.A.413/2016 transaction took place and who wrote the cheque etc., then the conviction of accused was perverse and not sustainable in law. Such being the situation, I am of the view that the very payment of loan amount to accused and issuance of cheque in question are doubtful. Hence I do find some force in the arguments advanced by the learned counsel for appellant relying on above said authority.
44. Further I am also supported by an authority reported in 2008 AIR SCW 738 in the case of Krishna Janardhan Bhat. Vs. Dattatraya G Hegde, Hon'ble Apex Court held as under:-
"An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. The standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies.
26 Crl.A.413/2016 On perusal of the above said authority, I am of the view that the ratio observed is aptly applicable to the case on hand. Herein this case also the accused by eliciting material facts during the cross examination of PW1 is able to create doubt in the case of complainant with regard to issuance of Ex.P.1 towards discharge of legally recoverable debt. Herein this case while no instrument was executed although a huge amount of money was allegedly paid to the accused is not explained by the complainant. So, the conduct of complainant in not taking any document as a security for having advanced such huge loan amount, is not that of a prudent man. Herein this case, not only no documents has been executed, even no interest has been charged. So these facts certainly create doubt as to the payment of such loan amount to the accused without taking any security. Therefore, the ratio observed in the above said authority is aptly applicable to the case on hand.
45. Further more, heavy burden casts on complainant to prove the existence of legally recoverable debt or liability due towards him, because the same is not matter of presumption. But the complainant failed to discharge his burden. Further, there was no hurdle for the complainant to disclose the payment of loan 27 Crl.A.413/2016 amount in installments on different dates in the complaint as well as in the legal notice if really it was so.
46. Even otherwise, the production of Ex.P.8 i.e., copy of bank statement does not itself prove that the loan amount was paid to the accused by withdrawing the amount on different dates through ATM, because the dates of withdrawal as stated by the PW1 in the cross examination do not tally with the dates on which the amount was actually withdrawn from ATM as per Ex.P.8. Further, it is no where stated in the complaint that he had borrowed an amount of Rs.40,000/- from his friend Sunil so as to advance loan amount to the accused. So, this aspect of the case also creates doubt as to the issuance of cheque in question towards discharge of legally recoverable debt due towards complainant. The complainant ought to have placed some thing probable on record to believe that he had capacity to lend such amount to accused as on the date of loan transaction. Therefore, the presumption available under Sec.139 of Negotiable Instruments Act has been successfully rebutted by the accused.
47. Further, in the cross examination PW 1 pleads his ignorance by stating that he does not know who has filled the 28 Crl.A.413/2016 cheque in question. It shows that he himself is not sure as to who actually filled or wrote the cheque in question. Though he states that the hand-writing found on Ex.P.1 pertains to accused, he pleads his ignorance that he does not know whether there is difference in writings as to signature and other contents of Ex.P.1. Because, one can make out by seeing EX.P1 that the person who signed EX.P1, did not fill its contents. It shows that the contents of cheque have been written by somebody other than accused. As such, this fact comes to the support of accused who asserts that blank signed cheque which was given as security has been misused subsequently for wrongful gain. Such being the fact, the defence set up accused is probable and believable one.
48. On the other hand, the learned counsel for respondent during the course of arguments referred to the authorities reported in 1) 2015(4) KCCR 2881 (S.C.) 2) AIR 2015 S.C. 2240 3) 2015 Crl.L.J. 3618 (S.C.) and 4) 2015(1) KCCR 235 (Karnataka high Court). I have gone through the above said authorities, which deal with the issuance of cheque as security and awarding of fine amount to the extent of double the cheque amount, etc. I do admit the proposition of law laid down in the above said authorities. But the facts involved in the above said 29 Crl.A.413/2016 authorities are entirely different to the facts involved in the case on hand. As such, the said ratio observed in the above said authorities is distinguishable on the basis of facts involved in the case on hand.
49. Herein this case, the complainant himself has suppressed some material facts while filing the complaint and while issuing legal notice with regard to the payment of loan amount in installments. If really, the complainant had paid the loan amount of Rs.3,00,000/- in four installments and received an amount of Rs.40,000/- from his friend Sunil for pooling the funds, there was no hurdle for him to disclose all those facts in the complaint as well as in the legal notice. He simply states that in the month of March 2014, he advanced loan amount of Rs.3,00,000/-. This pleading is diluted from the facts elicited in the cross examination of PW1. As such, all these facts certainly create doubt as to the alleged loan transaction as well as existence of legally recoverable debt due and issuance of Ex.P1 by accused.
50. Having regard to all these material facts and circumstances of the case, I am of the view that the complainant 30 Crl.A.413/2016 has failed to prove that the cheque in question was issued by accused towards repayment of legally recoverable debt or liability due to him. Further, the complainant has also failed to prove that he had sufficient funds with him as on the date of payment of loan amount of Rs.3,00,000/- to the accused. As such the burden casts, on the complainant to prove the issuance of cheque in question by accused towards repayment of hand loan amount of Rs.3,00,000/-, has not been discharged. Hence, it is highly improbable to believe that the cheque in question was issued towards repayment of loan amount of Rs.3,00,000/- in favour of complainant. The defence set up by the accused that the cheque in question which was issued as a blank signed cheque for having received loan amount of Rs.50,000/- from complainant, is probable and believable under the attending circumstances.
51. Therefore, the learned Magistrate grossly erred in not attaching any importance to the material facts elicited in the cross examination of PW1 while evaluating his evidence. The learned Magistrate erroneously overlooked the material admissions elicited in the cross examination of PW1 while assessing his evidence. The learned Magistrate erred in not holding that the complainant failed to prove that the cheque in question was 31 Crl.A.413/2016 issued by the accused towards payment of legally recoverable debt or liability. The learned Magistrate committed grave illegality in convicting the accused on erroneous application of mind without appreciating evidence in proper perspective. Hence, the impugned judgment of conviction and sentence is opposed to the settled principles of law, facts and probabilities of the case. The erroneous appreciation of evidence by the learned Magistrate has resulted in the miscarriage of justice. The very approach of learned Magistrate in overlooking the material aspects while appreciating the case of complainant is erroneous and unsustainable in law. Such being the situation, there are reasonable and sufficient grounds which warrant this Court to interfere in the reasoning and findings of trial Court. Consequently the judgment of conviction and sentence passed by the learned Magistrate in CC No.17188/2015 dt.4.3.2016 deserve to be set aside and the appellant /accused is liable to be acquitted by allowing the appeal. Accordingly, I answer point No.1 to 5 in Affirmative.
32 Crl.A.413/2016
52. Point No.6: In view of my findings on point No.1 to 6, I proceed to pass the following:
ORDER The appeal filed by appellant U/sec. 374 of Code of Criminal Procedure is hereby allowed.
The impugned judgment of conviction and sentence passed by the XXII ACMM, Bengaluru, in CC No17188/2015 dt.04.03.2016 is hereby set asided.
Consequently, the complaint filed u/s 138 of N.I.Act stands dismissed and appellant /accused is hereby acquitted for the offence punishable U/sec.138 of Negotiable Instruments Act. The bail bond executed by Accused and that of his surety during the course of trial, stand cancelled.
The fine amount deposited if any, shall be refunded to appellant after expiry of appeal period.
Send a copy of this judgment to the lower Court along with LCR.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court on this the 15th day of February, 2017) (S.K. VANTIGODI) LX Addl.City Civil & Sessions Judge, Bengaluru.
Rrt*