Bangalore District Court
S.Chikkaraju vs P.Narayanaswamy on 2 December, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 2nd day of December - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.23562/2016
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : S.Chikkaraju,
S/o.lte.Siddegowda,
Aged about 64 years,
R/at No.22/2/3/415, 1st Floor,
80 Feet Road, KHB Colony,
3rd Stage Bus Stop,
Kengeri Upanagara,
Bengaluru-60.
(Rep. by Sri.H.G.Revanna, Adv.)
V/S
Accused : P.Narayanaswamy,
S/o.Puttaswamy,
Aged about 46 years,
R/at. No.91, Subashnagara,
Kengeri Upanagara,
Bengaluru-60.
Also at:
P.Narayanaswamy,
S/o.Puttaswamy,
Aged about 46 years,
R/at. Subbrayanapalya,
Marahalli Layout, Ramohalli Post,
Tavarekere Hobli,
Bengaluru-60.
(Rep.by Sri.Radha Krishna, Adv.)
Judgment 2 C.C.No.23562/2016
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 02.12.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 03.09.2016 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of 2 cheques of Rs.5 lakhs each, in all Rs.10 lakhs.
2. The brief facts of the complainant case is as follows:
The complainant has submitted that, the accused well known to him from last 4 years through his friend Shivanna. As the accused doing real estate business in Kengeri and he facing financial problems for the marriage of his son and also full fill of his domestic purpose, he had approached the complainant during the 1st week of August, 2015 for sum of Rs.10 lakhs and the accused assured to return the same within a short period. On the request of the accused, the complainant had arranged the amount Judgment 3 C.C.No.23562/2016 out of his residential site was sold on that period and given to the accused on the 1st week of September, 2015 for the purpose of stated above. After acknowledged the above said amount, the accused had promised to repay the same within short period.
The complainant has averred that, after the stipulated period, he approached the accused and demanded for repayment of the loan amount. On several requests made by the complainant and his demands, the accused towards repayment of the said amount, got issued 2 cheques bearing Nos.898444 and 898447 dated:20.05.2016 and 31.05.2016 for sum of Rs.5 lakhs each respectively, drawn on Karnataka Bank Ltd., Kengeri Satellite Town Branch, Bengaluru, which were duly signed by the accused and assured to maintain sufficient balance in his account on the date of their presentation.
The complainant has further contended that, on the instructions of accused, he presented the said cheque for encashment on 04.07.2016 to his banker viz., Kaveri Grameena Bank, Kengeri Satellite Town Branch, Bengaluru. But to utter shock and surprise to the complainant, the said cheques came to be returned as per memo dated:06.07.2016, wherein, it mentioned the cheques came to be dishonoured for the reasons Judgment 4 C.C.No.23562/2016 "Funds Insufficient". Immediately, after receipt of the information, he informed the same to the accused and demanded him to pay the amount covered under the cheques, but he expressed his financial problems and promised to repay the same within few days. Till filing the private complaint, he not paid the cheques amount. Hence, on 23.07.2016 he got issued legal notice to the accused by way of R.P.A.D., and the same was refused by the accused on 28.07.2016. Despite, he either not paid the amount covered under the cheques nor issued any reply. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
Judgment 5 C.C.No.23562/2016
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P8. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D1 to D3. The DW.1 is also choosen to examine one witness by name Ramesh as DW.2. The DW.1 and DW.2 were subjected for cross-examination by the advocate for the accused.
7. Complainant counsel has submitted his detailed written arguments, apart from adduced oral arguments. Accused counsel has not addressed his side arguments. Inspite of given liberty to file his written arguments, but he not submitted his written arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
Judgment 6 C.C.No.23562/2016
1) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.10,00,000/- during 1st week of September as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Exs.P1 & P2 cheques bearing Nos.898444 and 898447, dated:20.05.2016 and 31.05.2016 for sum of Rs.5,00,000/- each drawn on Karnataka Bank Ltd., Kengeri Satellite Town Branch, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on 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
-: UNDISPUTED FACTS:-
10. The fact that, the complainant was retired Work Inspector of Housing Board is not in dispute. The fact that, the cause title addresses of the complainant and accused as mentioned in the complaint is not in dispute. The fact that, one Shivanna is friend of complainant is not in dispute. The fact that, Shivanna, Ramesh since they did real estate business, along with them the Judgment 7 C.C.No.23562/2016 complainant also did real estate business for the period of one year is not in dispute. The fact that, altogether they did the said business in hire building by making an office is not in dispute. The fact that, when the complainant did real estate business through Shivanna, the accused introduced to the complainant is not in dispute.
The fact that, the accused is a handicap was doing Sri.Lakshminarasimha Travels business is not in dispute. The fact that, his children were attached two hired vehicles to KEB on hire is not in dispute. The fact that, Muniyamma is the aunt of accused is not in dispute. The fact that, from the said Muniyamma, the complainant for his son got purchased the site is not in dispute. The fact that, in connection to the said dealing of site, the complainant had remitted Rs.2 lakhs to the account of accused is not in dispute. The fact that, one Nagendra is the son of complainant is not in dispute.
The fact that, Exs.P1 and P2 cheques are belongs to accused is not in dispute. The fact that, signature found in Ex.P1(a) is of the accused is not in dispute. The fact that, on 18.08.2015, the complainant lent loan of Rs.1 lakh to the accused through Shivanna is not in dispute. The fact that, the hand writing Judgment 8 C.C.No.23562/2016 found in the rare portion of Exs.P1 and P2 cheques is of the complainant is not in dispute. As per the same, the account No.85029840661 pertaining to the complainant is not in dispute. The fact that, the name and amount made mentioned in the front portion of Ex.P2-cheque is of the complainant is not in dispute.
The fact that, the financial status of the accused was good is not in dispute. The fact that, the accused had 2 children and they are also earning is not in dispute. The fact that, after filing of the present case against the accused and on mark of his appearance, sum of Rs.15,000/- was remitted from the account of son of accused to the account of complainant is not in dispute. The fact that, the name of the complainant is made mentioned in the Ex.P1-cheque on the hand writing of him is not in dispute.
The fact that, when complainant was opened his office with his partners and with whom, the DW.1 was accompanied for the period of 3 months is not in dispute as suggested to DW.1. The fact that, the DW.2/Ramesh was also with the complainant did partnership business of real estate in the same office is not in dispute. The fact that, the Ex.D1 bank statement pertaining to the accused concern by name M/s.Sri.Lakshminarasimha Swamy Travels is not in dispute. The fact that, Ex.D2 is the bank Judgment 9 C.C.No.23562/2016 statement pertaining to the accused held in Kaveri Grameena Bank is not in dispute. The fact that, as found in Ex.D2 sum of Rs.2 lakhs were remitted from the account NO.085029840661 as reflected in rare portion of Exs.P1 and P2 cheques and was remitted to the account of accused on 29.09.2015 is not in dispute.
The fact that, Ex.D3 bank statement held in Karnataka Bank Ltd., pertaining to the accused business is not in dispute. The fact that, as found therein on 13.01.2018 after institution of the present case sum of Rs.10,000/- were remitted from the account of the accused to the account complainant is not in dispute.
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P8, they are:
a) Exs.P1 and P2 are the cheques bearing Nos.898444 and 898447 issued by the accused for sum of Rs.5 lakhs each dated:20.05.2017 and 31.05.2017, drawn on Karnataka Bank Ltd., Kengeri Satellite Town Branch, Bengaluru.
Judgment 10 C.C.No.23562/2016
b) Exs.P1(a) and P2(a) are the alleged signatures of accused.
c) Exs.P3 and P4 are the Bank Memos
dated:06.07.2016.
d) Ex.P5 is the Legal Notice dated:23.07.2016.
e) Exs.P6 & P7 are the Postal receipts.
f) Ex.P8 is the unserved R.P.A.D cover.
The PW.1 was subjected to the cross-examination by the advocate for the accused.
12. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed his side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C. Wherein, he denied the same and specifically gave his statement that, he not borrowed the alleged loan from the complainant and not issued the questioned cheques at Exs.P1 and P2 for its repayment. More specifically he stated that, questioned cheques at Ex.P1 signature found therein is not of him. But whatever the signature found in the Ex.P2-cheque is not of him. He also stated that, Shivanna and Ramesh through the complainant has provide the loan of Rs.1 lakh on the security of cheques. In that regard, he stated, he would lead his defence evidence, wherein, mentioned the detail defence is not liable to Judgment 11 C.C.No.23562/2016 pay the amount covered under the cheques. Accordingly, the accused entered into witness box on oath he orally examined as DW.1.
The accused has deposed orally that, as alleged by the complainant, he not borrowed loan of Rs.10 lakhs from him nor issued questioned cheques for repayment of any loan. The accused has specifically contended that, complainant through Mr.Shivanna and Mr.Ramesh in the year 2015 got introduced to Mr.Ramesh, who is of his native place and Mr.Shivanna belongs to some other place. The complainant, Mr.Shivanna and Mr.Ramesh in the same office did real estate business. By kept separate 3 tables in the same office and each had paid rentals at Rs.2,000/- respectively. When Mr.Shivanna left the said business, by substituting him, he brought the accused to did travel business and thereby accused had paid monthly rentals at Rs.2,000/- and accordingly, accused along with complainant and Ramesh run the said office. Wherein, the accused did traveling business, complainant and Mr.Ramesh did real estate business.
The accused has further contended that, for the period of 6 months in connection to the said business, accused gave Rs.2,000/- rentals. After lapse of 6 months, the complainant took Judgment 12 C.C.No.23562/2016 away 3 tables kept in the same office got vacated the building. In the table of the accused, his cheque book, documents pertaining to KEB were kept, the same also taken away by the complainant. Thereafter, the accused brought the said fact to the notice of Mr.Ramesh as to taken away his documents. 15 days later, Mr.Ramesh brought one plastic cover and handed over to the accused stated that, complainant had returned his documents. The accused has not verified those documents and kept the same in his house.
The accused has further contended that, thereafter, one month later, he asked the loan of Rs.1 lakh from Mr.Shivanna, but he told him that, he had not that much amount, and intimated him that, would provide loan through the complainant. One week later, Mr.Shivanna and Mr.Ramesh together got contacted the accused to the complainant and through the complainant in the year 2015 got issued the loan of Rs.1 lakh. One week later, from the same, complainant asked the accused that, to the said loan he not furnished any security document. Hence, the accused gave him his signed blank cheque to the complainant drawn on Karnataka Bank Ltd.
Judgment 13 C.C.No.23562/2016 The accused has further contended that, after obtaining loan of Rs.1 lakh from the complainant, one month later, from the money he got received by way of hire his 2 vehicles to the KEB, from which he got money and Rs.1 lakh had been returned by him to the complainant through Mr.Shivanna and Mr.Ramesh at 10.30 a.m. at Subbarayappanapalya. The children of the complainant by name Mr.Naveen and Smt.Renuka Prasad were told the accused to pay the loan amount to the complainant. Accordingly, the accused had cleared the said loan to the complainant. One week later, when accused asked the complainant to return his signed blank cheque, then the complainant has replied him that, it was kept in his house. Later, 3 - 4 months, the accused was not met the complainant, when once again he asked the complainant to return the said cheque, then complainant told him that, the accused is handicap and what can do on his cheque and told him that, would return the same, but not at all returned his signed blank cheque. The non returning of security cheque by the complainant were intimated by the accused to Mr.Ramesh and Mr.Shivanna and they assured the accused that, would ask the complainant. Later, the accused intimated about those persons, as to the receipt of summons from the court. Thereafter, those 2 persons approached the complainant and questioned despite got Judgment 14 C.C.No.23562/2016 received money from the accused, why filed the present case against the accused, then complainant told him that, he did wrong and withdraw the case. After receipt of summons, by the court then came to know that, complainant had misused his 2 cheques. The complainant when he took away his table, when kept in the office of the complainant, wherein, he took away one unsigned cheque leaf and including the security cheque got obtained for the loan of Rs.1 lakh together with took away the cheque from his table got filed the false case by misusing the same. The accused had intimated the said factum to Mr.Shivanna and Mr.Ramesh, but they have told the accused that, such another cheque in the house of accused. Later, the accused has suspected about the complainant, then lodged complaint in the Police Station. Wherein, the police called the complainant and enquired, then the complainant told the police that, he had no cheques of the accused.
The accused has further contended that, his Aunt by name Smt.Muniyamma got sold her property for lessor price, complainant would assured to pay commission of Rs.2 lakhs to the accused. Accordingly, accused through the complainant had registered site from Smt.Muniyamma. In that connection complainant had given Rs.2 lakhs commission to the accused Judgment 15 C.C.No.23562/2016 through his bank account on 29.09.2015. In that regard, accused has produced his bank statement. After got registered the site, got receipt of summons from the court, the accused told him, Mr.Ramesh and Mr.Shivanna, then the complainant told them that, if accused paid Rs.25,000/-, he would withdraw the case. Accordingly, on the date of accused sought bail from this court got paid Rs.15,000/- to the complainant and another Rs.10,000/- was remitted to the bank account of the complainant on 13.01.2018. Despite that, complainant was not withdraw the present case against the compromise in the presence of Mr.Ramesh and Mr.Shivanna and got receipt of the said money. When the complainant was questioned by them, then there was galata arose between them, complainant has not withdraw the present case. As alleged by the complainant, he not solemnized marriage of his children and nor borrowed any loan from the complainant. The accused not liable to pay the cheques amount to the complainant. Complainant never paid Rs.1 lakh to the bank account of the accused and he not liable to pay the amount covered under the cheques. Hence, prayed for his acquittal.
Apart from the accused also choosen to produced the documents at Exs.D1 to D3. They are:
Judgment 16 C.C.No.23562/2016
a) Exs.D1 to D3 are the statement of accounts pertaining to accused herein.
The DW.1 was subjected to the cross-examination by the advocate for the complainant in detail.
13. That apart, to prove his defence, the accused got choosen to examined one Mr.Ramesh as witness on oath as DW.2. The DW.2 has deposed that, he, complainant and one Mr.Shivanna together did partnership office at Kengeri Upanagar, wherein did real estate business for the period of one year, by way of paying equal monthly rents at Rs.2,000/- each for the building. When DW.2 on account of his business, wishes to quit from partnership was intimated to complainant and Mr.Shivanna, they told him that, they are not able to pay the rentals, therefore, asked the DW.2 to arrange the substitute partner. Accordingly, on the request of complainant, he brought the accused at that time, did Narasimhaswamy Travels business as substitute for him as a partner and had joined the accused to the office of the complainant.
The DW.2 has further deposed that, accordingly, the complainant, accused together did business in the same office. After 3 - 4 months, the accused had asked loan of Rs.1 lakh from Mr.Shivanna and that much amount was not with him and with Judgment 17 C.C.No.23562/2016 Mr.Shivanna, then they together assured to facilitate the loan from the complainant. Accordingly, Mr.Shivanna and DW.2 brought the accused to the complainant and provide loan of Rs.1 lakh to the accused. Later, the complainant ask the accused to provide the documents for the loan. Accordingly, accused gave his signed blank cheque to the complainant through him.
The DW.2 has further deposed that, after lapse of 7 - 8 months, in between complainant and accused, there were differences arose. The accused has left the office of complainant. Since, the accused not went to the office of complainant, the complainant brought the DW.2 by kept the documents pertaining to the accused in one cover and asked him to hand over to the accused. Accordingly, DW.2 handed over the same to the accused.
The DW.2 has further deposed that, 2 - 3 months later, the complainant got issued notice to the accused. The accused had intimated the same to him as well as Mr.Shivanna. Then, DW.2 told to accused that, we are to go complainant and would talk the same. By that time, accused for repayment of loan borrowed from the complainant got handed over Rs.1 lakhs to DW.2 and Mr.Shivanna in order to reach the complainant, accordingly, they Judgment 18 C.C.No.23562/2016 have handed over the said sum of Rs.1 lakh to the complainant. Thereafter despite, the accused got cleared the loan, why notice has sent by the complainant have been asked by him and Mr.Shivanna. Then the complainant informed to pay Rs.25,000/-, accordingly, Rs.15,000/- were given by them and remaining amount of Rs.10,000/- they have asked time for payment. Few days later, when went and asked the complainant, then told them that, he would do as per his wishes, who are them to ask him. When they have requested to take back the case after receipt of money from the accused, the complainant did not took back the case. The complainant and accused are not known to each other. The DW.2 and Mr.Shivanna got introduced the accused to the complainant. The DW.2 was subjected to the cross-examination by the advocate for complainant.
14. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheques at Exs.P1 and P2. Therefore, it is needs to draw the presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is Judgment 19 C.C.No.23562/2016 prove, the holder of the cheque, the complainant received the cheques for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheques were drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued the Exs.P1 and P2 cheques unless and until contrary prove. Therefore, as per those sections, it made clear that, it is the initial onus on the accused to prove his case based on the principles of 'Preponderance of Probabilities'.
It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also, it was pleased to observed that, the accused can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of Judgment 20 C.C.No.23562/2016 showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to observed that, mere denial of issuing cheque, whether is Judgment 21 C.C.No.23562/2016 sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial of issuing cheques would not be sufficient as it is time and again noted that, once the cheques issued duly signed by the accused, the presumption goes against him as per Section 139 of Negotiable Instruments Act.
15. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, guilt of accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the materials brought on record by parties, but also by reference to the circumstances upon which he relies.
16. On going through the above authorities as well as dictums, it made clear that, it is the initial burden on the accused to prove his probable defence in order to rebut the statutory presumption as well as the case put forth by the complainant. In this case, the accused has seriously attack on the claim put forth by the complainant as to alleged borrowal of loan of Rs.10 lakhs during 1st week of September, 2015 for the purpose of marriage of his Judgment 22 C.C.No.23562/2016 son and attend the domestic purpose as well as got issuance of questioned cheques at Exs.P1 and P2 for sum of Rs.10 lakhs, he categorically denied the service of legal notice on him. Whereas, the accused has not only taken up simple contention in attack on the claim of complainant, but whatever his specific defence he had got put by way of cross-examine the PW.1 as well as himself entered into witness box got examined as DW.1, together with examined one of the material witness, who is vital part in alleged transaction held between complainant and accused got examined and also the accused got produced the documentary evidence.
17. It was the specific defence of the accused that, complainant did real estate business in rented office along with Mr.Ramesh and Mr.Shivanna. In the same room by having 3 separate tables by sharing equal monthly rent at Rs.2,000/- each. In the year 2015 when one of the said partner Mr.Shivanna got left the said business at the instance of complainant, he brought the accused to continue the business in the said office and he inducted the same.
18. On going through the said induction of the accused in the place of Mr.Shivanna, though complainant has denied the induction of accused as a partner to the said business, during the Judgment 23 C.C.No.23562/2016 course of cross-examination of PW.1 when suggested so, the PW.1 has deposed that:
"ಶವಣಣ ಪಲಲದರಕಯಯದ ಹಹರಹಹಹದ ಮಹಲ ಬಹರಯವರನಲ ನ ಪಲಲಗರರನನಗ ಮಡಕಹಯಡಲಲ, ಬದಲಗ ಕಛಹರಯನಲ ನ ಮಲಚಚದ.
ನ , ನನನ ಪಲಲಗರರನನಗ ಸಹರಸದದರಲ
ಸದರ ಶವಣಣ ಆರಹಹಪಯನಲ
ಎಯದರ ಸರಯಲಲ. ಸಕ ಆತ ಬಯದಲ ಹಹಹಗಲತತದದ ಎಯದಲ
ನಲಡಯಲತತರ. ಆರಹಹಪ ಮತಲತ ನನಲ ಇಬಬರಹ ಕಹಡ 6 ತಯಗಳ ಕಲ
ಸದರ ಕಛಹರಯ ಬಡಗ ಕಟಟದವ ಎಯದರ ಸರಯಲಲ. ನನಲ ಸಲಳಲ
ಳ
ಹಹಳಲತತದನ ಎಯದರ ಸರಯಲಲ."
19. On going through the said testimony of PW.1, he deposed, when Mr.Shivanna left out from the partnership business, inducted the accused substituting him is been denied, but he stated, he closed his office. But he volunteers that, the accused used to visit his office. To whom it was suggested that, the accused and complainant together did business for the period of 6 months in the rented building and got shared the rentals, but the PW.1 has denied the same, therefore, it was suggested by the accused that, the PW.1 has deposes falsely. The said evidence of PW.1 reveals that, the accused had visited the office of complainant, then if the accused was not inducted as a substitute partner in the place of Mr. Shivanna, then why he used to came to his office itself creates doubt.
Judgment 24 C.C.No.23562/2016
20. That apart, the PW.1 in his further cross-examination again deposed, against the suggestion of the accused advocate that, when Mr.Shivanna got jointed the accused as a partner and for the period of one year the complainant and accused got run the business, but PW.1 has denied the same and volunteers that, the accused used to visit the same. If at all, accused had no interest in the office of complainant or had any other transaction with the complainant, then why he used to visit the office of complainant itself creates doubt. Unless having any partnership venture by the accused, as he projected, what was his necessity to visit the office of the complainant oftenly is also not been satisfactorily explained. Contrary to the said evidence of PW.1, by way of making suggestion to DW.1 in his cross-examination, the complainant had clearly admitted that:
"ಚಕಕರಜಲ ರವರಲ ಕಛಹರ ತರದಗ ಮಹರಲ ತಯಗಳಲ ನನಲ,
ಆತನಹಯದಗ ಇದದದನಲ ಎಯದರ ಸರ. ಆತನ ಕಛಹರಯಲ ಮಹರಲ
ಟಹಬಲನನ ಲ ಇಟಲ ನ ನಡಸಲತತದದ ಬಗಗ ದಖಲ
ಟ ಕಹಯಡಲ, ನನಲ ಕಛಹರಯನಲ
ಹಜರಲಪಡಸಲಲ. ಮಸಕ ರಹರ2,000/- ಬಡಗ ಪರರದಗ ನಹಡದ
ಬಗಗ ದಖಲ ಇಲಲ, ಕರಣ ನಗದಲ ನಹಡದನಲ."
21. By way of made such suggestion to the DW.1, the complainant had clearly admitted that, when complainant had opened his office, the accused for the period of 3 months was with Judgment 25 C.C.No.23562/2016 the complainant. If the accused was with the complainant in his office, that too, the long duration of 3 months unless being a partner why he permitted to continue for the said duration is not been explained, then it has to be presume that, the accused was a partner continued the office of the complainant. It was suggested to DW.1 that, in order to show that, in the office of complainant 3 partners kept there separate tables and did real estate business, the DW.1 has deposed not produced any document. The DW.1 has explained that, by way of cash he paid his part of rent of Rs.2,000/- to the complainant, in that regard no document he possessed. From the above cross of DW.1, by way of suggestion the complainant has admitted, the accused was inducted in the office of the complainant for the period of 3 months is been proved by the accused. Contrary to the said suggestion made to DW.1, PW.1 has falsely deposed that, only the accused came and go not the partner, but the said evidence is brushed out by way of making admission by way of suggestion. Thereby, it made clear that, the accused was inducted in the place of Mr.Shivanna from the office of complainant, thereby 3 had nexus in doing business is been proved by the accused.
22. When the 3 persons are doing the join ventured of real estate business, the accused has stated he was denied traveling Judgment 26 C.C.No.23562/2016 agency business and during such business, when accused was in need of Rs.1 lakh, he asked other persons by names Mr.Shivanna and Mr.Ramesh in the year 2015, then those have told him that, they were not having money, but would talk with the complainant and provide loan accordingly, sum of Rs.1 lakh have been paid by the complainant in the year 2015 at the instance of Mr.Shivanna and Mr.Ramesh and subsequently, the complainant took signed blank cheque of the accused drawn in Karnataka Bank Ltd., as a security. Later, by way of receiving money from their children in respect of they have hired out their 2 vehicles to KEB and at the instance of their children, through Mr.Shivanna and Mr.Ramesh at Subbarayappanapalya at 10.30 a.m. accused got repaid Rs.1 lakh to the complainant. In that regard, the accused subjected for cross-examination. Wherein, he denied the suggestion made from the complainant and reasserted the same. With regard to the said loan transaction as deposed by the DW.1, no suggestion is made to him, whether he got received any such loan from the complainant at the instruction of Mr.Shivanna and Mr.Ramesh and got returned complainant are not. Therefore, it requires to focus on the cross-examination of PW.1, as to the alleged lent of loan of Rs.1 lakh and its repayment.
Judgment 27 C.C.No.23562/2016
23. During the course of cross of PW.1, it was clarified by way of extracted certain admissions, which runs thus:
"ನನಗ ರಹರ10 ಲಕ ದಹಡಡ ಮತತ, ಆರಹಹಪ, ಶವಣಣರವರ ಮಲಖಯತರ ಪರಚಯ. ಶವಣಣನ ಮಲಖಯತರ ಪರಚಯ. ಶವಣಣನ ಮಲಖಯತರ ಆತನಗ ಸಲ ನಹಡಲಲ ತಹಯದರ ಇರಲಲಲ. ಶವಣಣನ ಮಲಖಯತರ ಆರಹಹಪಗ ಮದಲ ಬರ ರಹರ1 ಲಕವನಲ ನ ನಗದಗ ಕಹಟಟದ ಎಯದರ ಸರ. ಸಕಯಲ ಸಸತರ ಮಲಯದಲರದಲ, ಚಕಮಲಖಯತರ ಕಹಟಟದ ಎಯದಲ ನಲಡಯಲತತರ. ಚಕ ಮಲಖಯತರ ಕಹಟಟಲಲ ಎಯದರ ಸರಯಲಲ. ಆ ರಹರ1 ಲಕ ಸಲ ನಹಡದ ನಯತರ, ಒಯದಲ ವರದ ಬಳಕ ಆರಹಹಪಯಯದ ನ ಪಡದದ ಎಯದರ ಸರಯಲಲ. ಚಕನ ನನಲ ಖಲ ಸಹ ಮಡದ ಚಕಕನಲ ನ ಪಡದಲಕಹಯಡಲಲ ವನರ ಆರಹಹಪಯಯದ ನನಲ ಬಹರ ದಖಲಯನಲ ಎಯದರ ಸರ. ಆರಹಹಪ ಶವಣಣನ ಮಲಖಯತರ ರಹರ1 ಲಕ ಮರಳಸದದರಯದರ ಸರಯಲಲ. ಸಕಯಲ ಸಸತರ ಮಲಯದಲವರದಲ ದ , ಆತ ರಹರ88,000/-
ಶವಣಣನಹಯದಗ ನನಲ ಬಹರ ವವವಹರ ಮಡದಲ
ನನಗ ಕಹಟಟದದರಯದಲ ನಲಡಯಲತತರ. ಆರಹಹಪ ರಹರ1 ಲಕವನಲ
ನ ಸದರ
ದ , ನನಲ ಸಲಳಲ
ಶವಣಣನ ಮಲಖಯತರ ನನಗ ಮರಳಸದಲ ಳ ಹಹಳಲತತದನ
ಎಯದರ ಸರಯಲಲ."
24. On going through the testimony of PW.1, he deposed that, sum of Rs.10 lakhs is huge amount to him. The accused was knew to him through Mr.Shivanna and also deposed, he had no impediment to lent loan to accused through Mr.Shivanna. But the PW.1 has categorically admitted that, through the said Judgment 28 C.C.No.23562/2016 Mr.Shivanna earlier he gave Rs.1 lakh to the accused. That apart, he volunteers that, the said money was remitted to the account of accused by way of cheque. Both money through cheque is been denied by the accused, but both have admitted, complainant lent loan of Rs.1 lakhs to the accused through Mr.Shivanna. It was suggestion made to PW.1 that, after lent of loan of Rs.1 lakh, one week later, complainant took signed blank cheque of the accused as security for the said loan only. It was suggested to PW.1 that, in connection to the lent of the said loan of Rs.1 lakh paid to the accused, it was suggested through Mr.Shivanna only, the accused got repaid the loan of Rs.1 lakh, but PW.1 has denied the same and volunteers that, with Mr.Shivanna, he had different business and accordingly, he paid Rs.88,000/- to the complainant. The accused was denied that, accused sent Rs.1 lakh through Mr.Shivanna to the complainant, but he deposed falsely.
25. On going through the said testimony of PW.1, on the 1 st part he categorically admitted through Mr.Shivanna, he gave Rs.1 lakh to the accused. When stated about accused got repaid the same, then PW.1 got dilute his say and deposed that, he paid loan to Mr.Shivanna, therefore, he got repaid Rs.88,000/-. When he not whispered anything about lent of Rs.1 lakh to Mr.Shivanna, then question of Mr.Shivanna remitted Rs.88,000/- to the complainant Judgment 29 C.C.No.23562/2016 does not arise. From the said testimony it revealed that, whatever the loan of Rs.1 lakh paid by the complainant the accused on the guarantee of signed blank cheque of the accused, the accused through the said Mr.Shivanna got cleared the said loan is stands proved. In order to show that, other than he lent loan to accused of Rs.1 lakh through Mr.Shivanna, separately the complainant lent loan to Mr.Shivanna, the complainant has not produced any document before this court nor contended the same earlier. The PW.1, after receipt of money, from the accused through Mr.Shivanna had taken 'U' turn about the said transaction and try to put forth altogether different kind of transaction. Thereby, the accused has projected and proved his defence that, while borrow loan of Rs.1 lakh, from complainant through Mr.Shivanna gave signed blank cheque as security and same were not returned by the complainant to the accused. The said inference needs to be drawn as the complainant has admitted the receipt of Rs.88,000/- from Mr.Shivanna and he failed to demonstrate that, other than the say of accused, he had separate transaction with Mr.Shivanna. Thereby, the accused had rebutted by way of placing substantial evidence that, his signed blank cheque in a keeping Rs.1 lakh loan despite, he got repaid through Mr.Shivanna, the complainant had retained the same.
Judgment 30 C.C.No.23562/2016
26. It is significant fact to note that, the complainant had pleaded that, Mr.Shivanna is his friend. Therefore, if the version of the accused were not to be true definitely, he had remember and opportunity to examine the said Mr.Shivanna, in what connection he got received the said money from Mr.Shivanna is not been proved by the complainant. When Mr.Shivanna was the friend of complainant, definitely, there were no impediment to drag him before the court of law in order to prove the claim of complainant or disprove the defence of the accused. Thereby, the complainant has maintained silence as to role of Mr.Shivanna, therefore, the say of accused needs to be accepted, whatever the loan of Rs.1 lakh, he got received from the complainant through Mr.Shivanna, it got repaid through Mr.Shivanna only, and thereby ended the loan transaction with the complainant and accused. That apart, the accused has contending that, despite the complainant had not returned his one of the cheque.
27. That apart, the accused has specifically taken up the defence that, when he was substituted Mr.Shivanna in the business of complainant, the accused was kept table in the said office, wherein, he kept his valid documents including cheques. When complainant quit the office, he took away the table of accused along with his own documents and while the accused Judgment 31 C.C.No.23562/2016 asked Mr.Shivanna and Mr.Ramesh as to return of his cheques kept in the table, then the complainant through Mr.Ramesh got sent his documents kept in the cover. After receipt of summons, he came to know about the complainant took away another cheque from the table and by retaining earlier cheque as a security for Rs.1 lakh loan, misused the same filed the false case by claiming Rs.10 lakhs. No doubt, the complainant has denied the same.
28. As discussed earlier by way of suggestion made to DW.1, the complainant has clearly admitted, the accused was inducted in the office of complainant for the period of 3 months. Definitely, during the course of joined business, when accused has separate table and doing separate business of traveling agency, apart from the complainant and Mr.Ramesh did real estate business, needs to kept some documents in the office. In view of the role of accused being a partner worked in the office of complainant for the period of 3 months, it needs to draw the inference that, accused kept some documents in the table and it took away by the complainant and got returned through DW.2. In that regard, the accused choosen to examine DW.2.
Judgment 32 C.C.No.23562/2016
29. The DW.2 in the oral evidence specifically deposed about he and Mr.Shivanna on their request got provide loan of Rs.1 lakh from the complainant to the accused. In that connection, the complainant took signed blank cheque of the accused as security and despite, accused got cleared loan through them, complainant not returned his cheque. Even he deposed that, the accused gave Rs.1 lakh to repay the loan of complainant to DW.2 and Mr.Shivanna, accordingly, they were paid the said sum of Rs.1 lakh to the complainant, but he gave notice to the accused as intimated by the accused. The DW.2 has subjected for cross- examination. The role of DW.2 as one of the partner in the real estate business of the complainant is not been denied by the complainant. When the PW.1 himself has clearly admitted the role of DW.2 did the business, by denying the same, once again contrary to the evidence of PW.1 as nothing worthwhile to appreciate. The PW.1 in his cross-examination has deposed that, he and Mr.Shivanna in the year 2015 got opened office and Mr.Ramesh was not with him for the period of one year. He also stated that, the monthly rentals of Rs.5,000/- and advance of Rs.70,000/- were paid by him alone. He also stated, in the month of December and January, 2016 he got closed his office. The accused has suggested to PW.1 that, through the friend of Judgment 33 C.C.No.23562/2016 complainant by name Mr.Shivanna got repaid Rs.1 lakh to the complainant. But in the earlier cross-examination of PW.1, he categorically admitted, Mr.Shivanna and Mr.Ramesh had did real estate business very known to complainant. Therefore, the access of Mr.Shivanna and Mr.Ramesh in the joint ventured business with the complainant, it is complainant needs to examine Mr.Shivanna, but for the reasons better known to him, he not examined.
30. The DW.2 in his cross-examination has reasserted that, with the complainant he had no real estate business, but he did business of flower decoration in the said office. When complainant suggested to DW.2 that, when brought the DW.2 and Mr.Shivanna, the complainant had not made any documents. The DW.2 has deposed, in connection to did partnership business by 3 persons no written document has been entered. Even deposed, no name plate were affixed infront of office. But he deposed that, complainant was did personally. Though there is no direct evidence discloses, DW.2 did partnership business with the complainant and Mr.Shivanna, the suggestion made to DW.2 is to be seen.
Judgment 34 C.C.No.23562/2016 "ನನಲ ಹಹವನ ಅಲಯಕರ ಮತಲತ ರಯಲ ಎಸಟಹಟ ವವವಹರ ಪರರದಯಯದಗ ಮಡದ ಆದಲ, ಆ ಬಗಗ ಬಲ ಪಸತಕ ಪರರದಯ ಕಛಹರಯ ವಳಸದಲರಲತತತಲತ ಎಯದರ ಸಕಯಲ, ಕಹವಲ ರಯಲ ಎಸಟಹಟ ವವವಹರ ಮತ ತ ಆತನಹಯದಗ ಮಡದ ಎಯದಲ ನಲಡಯಲತತರ."
31. The DW.2 in his cross-examination has deposed that, he did flower decoration business and real estate business with the complainant, if at all, it should be recorded in the bill book in the address of complainant office. But the DW.2 gave his explanation that, he did real estate business with the complainant only. Though, he deposed as such, he had no document. When the complainant has deposed, Mr.Shivanna and Mr.Ramesh did real estate business knew to him, the version of accused has to be accepted, he was one of the partner with the complainant. Even PW.1 has admitted that, accused was introduced through Mr.Shivanna. When Mr.Shivanna and Mr.Ramesh were did real estate business, when Mr.Shivanna left the office, he inducted the accused as one of the partner of the complainant. Therefore, the access of the accused to the office of the complainant being a partner and he had business for the period of 3 months, as suggested to DW.1 can be seen.
Judgment 35 C.C.No.23562/2016
32. The DW.2 also deposed that, after the accused asking him about the complainant took away his table with documents, then the PW.1 got returned the documents of the accused through DW.2. When DW.2 has specifically attack on the claim of complainant and projected his role as one of the partner and disclose the nexus between complainant and accused through the Mr.Shivanna and DW.2, the complainant has not satisfactorily made out any contrary circumstances. Even through the DW.2 it also revealed that, despite, the accused got cleared the loan amount of Rs.1 lakh obtained from the complainant, he not returned the security cheque as well as by misusing another cheque kept in his office, the complainant wrongly projected the alleged loan and filed the false case. After filing the case when DW.2 and Mr.Shivanna asked the complainant to return his cheques by way of withdraw the case. The DW.2 also deposed that, when he talk with complainant for withdrawal of case, it was contested the complainant and accused through in their presence that, complainant by receiving Rs.25,000/- from the accused got withdraw the case. He also deposed that, the talks made in that regard were known to the advocate for accused and not known to the advocate for complainant. Thereby, try to project that, the complainant was not aware about the said cheque. By that time, Judgment 36 C.C.No.23562/2016 the complainant was assured the DW.2 and accused that, by spoke to his advocate to withdraw the case. As per the said talk, the accused had remitted Rs.15,000/- to the account of complainant from the account of accused and later he got paid another Rs.15,000/- to the complainant. The suggestion were made to DW.2 that, no such money were remitted to the account of complainant by the account of accused. But suggestion made to DW.2 discloses that:
"ಪರರದಯ ಗಮನಕಕ ಬರದಯತ ಆರಹಹಪಯ ಮಗನ ಖತಯ ಮಲಖಯತರ ಕಹವಲ ರಹರ10,000/-ವನಲ ನ ಪರರದಯ ಖತಗ ನವ ಜಮ ಮಡಸದವ ಎಯದರ ಸರಯಲಲ. ನನಲ ಪರರದಗ ಪರಚತನಲಲ, ಸಲಳಲ ಳ ಸಕವ ನಲಡಯಲತತದನ ಎಯದರ ಸರಯಲಲ."
33. On going through the said testimony of DW.2, it revealed that, after filing of the present case, sum of Rs.10,000/- were remitted to the account of the son of accused to the account of complainant, but DW.2 has denied the same. By way of making such suggestion it made clear that, after institution of present case sum of Rs.10,000/- were remitted by the accused to the account of complainant, the same also reflected in the bank statement of accused produced at Ex.D3.
Judgment 37 C.C.No.23562/2016
34. From the evidence of DW.1 and DW.2, it reveal that, the accused has sufficiently proved his probable defence by way of examining himself as well as brought the DW.2 into witness box and their evidence withstood their contention. Their evidence it made clear that, whatever the amount of Rs.1 lakh got received by the accused as loan from the complainant in the presence of Mr.Shivanna and Mr. Ramesh, got cleared by th accused. Despite that, complainant had not returned the signed blank cheque. That apart, it also reveal that, while the accused was quit from the office of complainant, he took away the office table of the accused with certain documents including cheque book. As demonstrated by the accused, one of the cheque was taken by the complainant and by misusing the same, though he not liable to pay any sum to the complainant, and he filed the false case. Even after filing of the present case, complainant got received sum of Rs.10,000/- from the account of accused as admitted by both side. The accused also stated, for withdrawal of case, complainant demanding for Rs.25,000/- through Mr.Shivanna and Mr.Ramesh, Rs.15,000/- were paid by him to the complainant and Rs.10,000/- though remitted to the account of the complainant, he not withdraw the case. The said evidence is not been convinced by Judgment 38 C.C.No.23562/2016 complainant from the mouth of DW.1 and DW.2 coupled with documentary evidence produced at Exs.D1 to D3.
35. That apart, whatever the Ex.D1 bank statement pertaining to the accused held in Karnataka Bank Ltd., which discloses, the accused did Lakshminarasimha Travels Business. The Ex.D2 discloses, the account held by accused in Kaveri Grameena Bank, wherein, clearly made mentioned on 29.09.2015 from the account of complainant bearing No.085029840661 sum of Rs.2 lakhs were transferred to the account of accused. It is not the case of complainant that, it was the portion of loan amount remitted by him to the accused. But in his cross-examination he categorically admitted, towards the property purchased from Mrs.Muniyamma in the name of his son, he gave commission as such to the accused. Therefore, admittedly, the amount made mentioned in Ex.D2 is not the loan amount. The Exs.D1 and D2 does not revealed the passing of any consideration of Rs.10,000/- or any major amount to the account of accused. The Ex.D3 which also the Statement of account held by the complainant in Karnataka Bank Ltd., which also does not revealed any money transferred by the accused to the account of complainant. Thereby, the accused has clarified this court that, as alleged by the complainant through any bank transaction either by way of Judgment 39 C.C.No.23562/2016 cheque or RTGS for any other mode any amount is not transmitted to his account. Ex.D3 revealed that, sum of Rs.10,000/- was remitted to the account of complainant on 13.01.2018. The said amount remittance is also not in dispute. Thereby, it more requires to rebut the statutory presumption as well as facts and circumstances set out by the complainant.
36. Apart from the accused proved his probable defence by way of oral as well as documentary evidence, he able to extract certain contradictions in the evidence of PW.1. On going through the pleading of the complainant, he stated, during 1st week of August, 2015 the accused had approached him sought for loan of Rs.10 lakhs to meet out the expenses of marriage of his son and attend domestic purpose. Though, he pleaded as such, not specified on which date, where, on whose presence the accused had made such request. However the said pleading discloses, for the purpose of expenses of marriage function of the son of accused and attend domestic purpose sought the loan. The accused has strongly denied by contending that, he has not solemnized marriage of any sons, therefore, to need huge expenses of Rs.10 lakhs, that too, the marriage expenses of male person, it is highly impossible to accept that, accused requires Rs.10 lakhs. That apart, if at all, any portion of money was lent for Judgment 40 C.C.No.23562/2016 the said purpose, it is the complainant needs to explain, what is his name, where the marriage was happened, on which date, who were the participants, anything has been explained or pleaded. If at all, any other domestic purpose, the accused was need any major portion of amount, the complainant himself being a retired employee got mere pension, how he was made enough to believe the grounds urged by accused, nothing has been pleaded or proved. If at all, any domestic purpose accused was in need of money definitely, unknowing to the accused, what was the reason behind the accused was appeared to the complainant is also not been satisfactorily explained.
37. That apart, he also pleaded, during 1st Week of September, 2015 he gave the said loan to the accused. If at all, during 1 st week of September, 2015, he being a retired employee, how he was able to mobilized the huge amount of Rs.10 lakhs, on which guarantee, where, when, on which security he lent loan is not been pleaded, no such explanation has forth coming from the mouth of PW.1 during his cross-examination. However, he choosen to explained, how he lent money to the accused. In that regard, the cross of PW.1 runs thus:
Judgment 41 C.C.No.23562/2016
"ದನಯಕರ19.08.2015 ರಯದಲ ಆರಹಹಪ ನನನಲ ಆತನ ಮಗನ
ಮದಲವಯಯದಲ 2 ಲಕ ತಗದಲಕಹಯಡದದರಲ. ಆರಹಹಪ ಆಗಸಟ ಮತಲತ
ಸಪಟಯಬರ ತಯಗಳಲ ಸಲಮರಲ 20 ದನಗಳ ಅಯತರದಲ ನನನಲ ಬಯದಲ
ಹಣ ಕಹಳದದರಲ. ನನನ ಕಛಹರಗ ಬಯದಲ ನಹರವಗ ನನನಲ ಕಹಳದದರಲ. ದನಯಕರ31.05.2016 ರಯದಲ ನಗದಲ ರಹರ5 ಲಕ ನನನಯದ ಪಡದಲ, ಚಕಲ ಕ ಕಹಟಟದದರಲ. ನಯತರ 2 ಬರ ಒಯದಹಯದಲ ಲಕವನಲ ನ ನನನಯದ ಸಲವಗ ಪಡದದದರಲ. ಆರಹಹಪಗ ಚಕ ಮಲಖಯತರ 2 ಲಕ ಹಗಹ 1 ಲಕದ ಮಹರಲ ಚಕಲ ನ , 5 ಲಕವನಲ ಕ ಗಳನಲ ನ ಚಕ ಮಲಖಯತರ ಕಹಟಟದ.
ದನಯಕರ31.05.2016 ಕಕ ನಗದಗ 5 ಲಕ ಈ ಮಹಲ ಹಹಳದಯತ
ಕಹಟಟದನಲ. ಬವಯಕನ ಸಟಹಟ ಮಯಟನಲ
ನ ಈ ಪಪಕರಣದಲ
ಹಜರಲಪಡಸದನ. ಆ ರಹತ ರವದಹ ಸಟಹಟ ಮಯಟನಲ
ನ
ಹಜರಲಪಡಸಲಲ ಎಯದರ ಸರಯಲಲ."
38. On going through the said testimony of PW.1 and on comparative scanning of evidence of PW.1, he contrary to his own pleading he deposed, on 19.08.2015 for the marriage of the son of accused,he took loan of Rs.2 lakhs. By way of deposing so against his own pleading, though alleged during 1 st week of August, 2018, the accused was requested for the loan, the complainant has deposed on 19.08.2015 he lent Rs.2 lakhs. The said explanation is against his own pleading alleged lent of loan. In the pleading stated, during 1st week of September, 2015 he lent loan, therefore, the said explanation of the PW.1 as to lent of alleged loan of Rs.2 lakhs is prior to the alleged request and Judgment 42 C.C.No.23562/2016 alleged lent has made mentioned in his pleading, therefore, it creates doubt.
39. No doubt, as observed earlier, the PW.1 has categorically admitted,he got purchased property from aunt of accused by name Mrs.Muniyamma in the name of his son in respect of the same, he gave Rs.2 lakhs as commission to the accused. More carefully he deposed, the transaction is altogether different. The remittance of the said Rs.2 lakhs to the accused as alleged by the complainant on 19.08.2015 no documentary evidence is been placed by him. But on close perusal of the bank statement of the accused marked at Ex.D2 held in Kaveri Grameena Bank, which clearly manifest on 29.09.2015 complainant had transferred sum of Rs.2 lakhs to the account of accused. Therefore, in order to show that, as he deposed, on 19.08.2015 he lent Rs.2 lakhs to the accused no evidence is been produced. At least to show that, the said sum of Rs.2 lakhs was remitted by him to the accused either by way of cash or by way of any account transaction, the complainant had not produced any document.
40. No doubt, the complainant had at the fag end of the case got produced his bank statement held in Kaveri Grameena Bank and State Bank of India. Though it is not marked, at last this court Judgment 43 C.C.No.23562/2016 has taken judicial note as to any reflection of payment made as such on 19.08.2015 to the account of accused or not? is to be seen. No doubt, in the statement held at Kaveri Grameena Bank, there is entry discloses, on 18.08.2015 by way of cheque bearing No.423735 sum of Rs.1 lakh was remitted to the account of accused. But it does not discloses, the payment of Rs.2 lakhs. In respect of receipt of the said Rs.1 lakh as found in the entries of bank statement of the complainant, the complainant had taken up the defence and got admission from the mouth of PW.1 that, accused through Mr.Shivanna and Mr.Ramesh got obtained loan of Rs.1 lakh from the complainant and it got repaid through Mr.Shivanna. The PW.1 got admitted the receipt of the said loan of Rs.1 lakh from the accused, though he denied the transaction is altogether different for the discussion made supra, it has been clearly admitted by the PW.1 that, he lent loan of Rs.1 lakh to the accused through the intervention of Mr.Shivanna and Mr.Ramesh. The said loan has deposed by the PW.1 in his cross-examination, through Mr.Shivanna the accused got repaid the same, but the PW.1 deposed, Mr.Shivanna got paid Rs.88,000/- in connection to other transaction. Thereby, the said evidence of PW.1 rather supports it creates altogether different evidence and if at all, it is different transaction, why he stated on 19.08.2015 he got paid Judgment 44 C.C.No.23562/2016 Rs.2 lakhs, but the same is not reflected in his statement. On 18.08.2015 alleged paid Rs.1 lakhs to the accused as found in unmarked statement of the complainant revealed other date and accused contended, it was only the amount so received by him through Mr.Shivanna and Mr.Ramesh and same got repaid to the complainant.
41. From the said evidence it made clear that, though PW.1 has deposed, on 19.08.2015 he lent loan of Rs.2 lakhs to the marriage function of son of accused, but he failed to prove the same. At least, he could have discloses, whose marriage the accused borrowed loan and marriage particulars would have been narrated, but the same also lacks, which creates serious doubt, as to the alleged payment of Rs.2 lakhs on 19.08.2015. The further cross of PW.1 re-produced above, it discloses, the accused during August and September months within the gap of 20 days again came to him and asked for the loan in his office. Accordingly, on 31.05.2016 accused took Rs.5 lakhs from the complainant and gave the cheque. If at all, it was the contention of the complainant lent Rs.5 lakhs on 31.05.2016 the same has to be reflected in his pleading as well as cross-examination including his bank statement. On going through the unmarked bank statement held in Kaveri Grameena Bank and State Bank of India, on 31.05.2015 Judgment 45 C.C.No.23562/2016 there is no entry as to withdrawal of money of Rs.5 lakhs by the accused from Kaveri Grameena Bank. The said statement which unmarked discloses, on 30.06.2016 the complainant in Kaveri Grameena Bank had the balance of Rs.9696.16 only. Therefore, on the said date the complainant gave Rs.5 lakhs by withdrawing money from Kaveri Grameena Bank does not arise. Likewise, the complainant had produced any bank statement held in State Bank of India, on meticulous perusal of the entries pertaining to the dated:31.05.2016, it was balance of Rs.19,012/-. He had no requisite fund of Rs.5 lakhs on the said day. Therefore, withdrawing money of Rs.5 lakhs from his bank on the said day of alleged lent to accused also does not arise.
42. In order to show that, on 31.05.2016 the accused borrowed sum of Rs.5 lakhs from the complainant is not been proved by the complainant. Even there is no pleading as such. When he not able to pay Rs.5 lakhs on 31.05.2016, as there is no sufficient fund in his bank account, alleged lent of Rs.5 lakhs to the accused does not arise and not been proved by the complainant. The complainant has clearly deposed that, on 31.05.2016 by lent Rs.5 lakhs, he took cheque from accused. When he failed to prove that, on the said day he lent Rs.5 lakhs to the accused, how it possible to accused gave cheque to the complainant on the said Judgment 46 C.C.No.23562/2016 day is created very strong doubtful circumstances as to the alleged issuance and execution of cheque. By contending so, PW.1 has admitted Ex.P1-cheque is the 1st cheque taken by the complainant from the accused. The accused has contended, it was signed blank cheque gave to complainant in respect of loan of Rs.1 lakh, despite got cleared, the complainant not returned and filed the false case. The said defence had been proved by the accused through the mouth of DW.1 and DW.2. Even PW.1 has admitted, the hand writings in Ex.P1-cheque at front side mentioned his name and backside are his hand writing. Enable the complainant to mentioned his name in Ex.P1-cheque, it made clear that, it was blank cheque. When he unable to write his name, then who wrote the amount in the said cheque in words and numerals, the complainant has not explained, who did. Since, he admitted himself mentioned his name in the cheque, then it has to be draw the inference that, complainant alone got filled the cheque against the interest of accused. When he failed to prove, on 31.05.2016 he lent Rs.5 lakhs to the accused, as he alleged the question of got receive cheque at Ex.P1 from the accused does not arise and it rather supports the contention of the complainant, it supports the clear defence of the accused in Judgment 47 C.C.No.23562/2016 connection to the loan of Rs.1 lakh, the complainant took signed blank cheque.
43. That apart, PW.1 has deposed that, later, 2 times the accused took Rs.1 lakh each as loan from the complainant. In that regard, he gave explanation that, through cheque he gave Rs.2 lakhs and Rs.1 lakhs through 3 cheques gave Rs.5 lakhs to the accused. The said evidence discloses, he try to say that, Rs.2 lakhs by way of one cheque and another Rs.3 lakhs by way of separate 3 cheques he gave money to the accused. If so, the entry should be reflect in the bank statement of the complainant. The unmarked bank statement, on close perusal of the same, it does not reveal any entries as to by way of 3 cheques he gave Rs.2 lakhs and Rs.1 lakh on 3 times in all Rs.5 lakhs to the accused. Then why the complainant had invited the risk in depose so, without any substantiate document is created doubt. On close perusal of un-marking statement it discloses, the complainant used to withdraw the money through his self cheque. As he urged Rs.2 lakhs or Rs.1 lakh each on 3 times he not directly paid to the account of the accused or withdraw directly by the complainant. If at all, any sums reflects in his statement got withdraw by the complainant, it was for his purpose and in order to show that, any money as such was remitted to the accused, the Judgment 48 C.C.No.23562/2016 complainant has not furnished any satisfactory evidence and explanation. Though he produced bank statement at the fag end, not marked the same.
44. As deposed, if at all, taken into consideration of above testimony as per his say on 19.08.2015 he gave Rs.2 lakhs. Again he stated, on 31.05.2016 he gave Rs.5 lakhs. Again he stated another 2 times the accused took Rs.1 lakh each. He also stated that, again he paid Rs.2 lakhs by way of cheque and Rs.3 lakhs by way of separate cheques to the accused. By considering the same, as per say of complainant in all Rs.15 lakhs has been paid by him. It is not his case that, in all he paid Rs.14 lakhs amount to the account of accused or directly to the accused. The said evidence itself discloses, the complainant has not pleaded the said fact and deposed against his own pleading. There is serious contradictions alleged and development in the evidence of PW.1, it creates so doubtful circumstances, as to the alleged transaction held between complainant and accused.
45. The PW.1 has deposed that, while he gave Rs.5 lakhs on 31.05.2016 he took one cheque from accused. But his pleading discloses, the accused undertakes to repay the loan within short period. In order to pay the huge amount of Rs.10 lakhs, the time Judgment 49 C.C.No.23562/2016 limit should be specified, in that regard what was the duration undertaken by the accused to repay the loan is not pleaded and proved. In order to demand the accused for repay the amount, what was the stipulated period lapsed is also not been pleaded and explained by the complainant. No prudent man without any documentary evidence normally would not take risk to pay the huge loan. Accordingly, in the same line, the very conduct of the complainant in projecting the present case without any security document alleged lent of loan itself is highly created doubt.
46. The complainant has pleaded that, after lapse of stipulated period, when he demanded for repayment, then accused gave cheques at Exs.P1 and P2 dated:20.05.2016 and 31.05.2016. On going through the above re-production of cross of PW.1, he himself deposed that, on 31.05.2016 he took cheque from the accused for Rs.5 lakhs. The said evidence goes against his own pleading and got execution and issuance of questioned cheques. The PW.1 does not discloses, when he took the Ex.P2 cheque from the accused. In the further cross-examination of PW.1 contrary to the earlier saying of PW.1, he got try to rectify the error or lapses might in the earlier cross-examination and deposed that:
Judgment 50 C.C.No.23562/2016
"ದನಯಕರ29.09.2015 ಆಸಲಪಸನಲ ಆರಹಹಪಯ ಮಗನ
ಮದಲವರಗದ. ದನಯಕರ18.08.2015 ಕಕ ಚಕ ಮಲಖಯತರ,
ದನಯಕರ29.09.2015 ರಲ ರಹರ2 ಲಕ ಚಕ ಮಲಖಯತರ ಆರಹಹಪಗ ಪವತ ಮಡದ, ಸಲಮರಲ 1 ತಯಗಳಲ ಅಥವ 20 ದವಸದ ಆಸಲಪಸನಲಯಹ ರಹರ7 ಲಕ ನಗದಗ ಕಹಟಟದನ. ಆ ಬಗಗ ರವದಹ ದಖಲ ಇಲಲ. ಆರಹಹಪಯಯದ ತಲ ರಹರ5 ಲಕದ 2 ಚಕಲ ಕ ಗಳನಲ ನ ಪಡದ ಬಳಕವಹ ಚಕಮತಲತ ನಗದಲ ಮಲಖಯತರ ರಹರ10 ಲಕ ಪವತ ಮಡದ.
ಸಕ ಮಲಯದಲವರದಲ, ಆರಹಹಪಗ ಹಣ ಮರಳಸಲವಯತ ಕಹಳದ ನಯತರ, ಆತ 5 ಲಕದ 2 ಚಕಲ ಕ ಗಳನಲ ನ ದನಯಕರ20.05.2016 ಮತಲತ 31.05.2016 ರ ದನಯಕ ನಮಹದಸ ಕಹಟಟದದರಲ. ಆರಹಹಪಗ ಹಣವನಲ ನ ವಶಸಸದ ಮಹಲ ಕಹಟಟದನಲ. ಆ ವವವಹರ ನಡಯಲವಗ ನನಲ ಮತಲತ ಆರಹಹಪ ಮತ ತ ಇದವ.. ಆರಹಹಪ ನಮಮ ಕಛಹರಗ ಬಯದಗ, ನನನ ಮತಲತ ಆತನ ವನರ ಹಣದ ವವವಹರ ಬಹರಯವರಗ ತಳಯಕಹಡದಲ ಎಯಬ ಕರಣಕಕ ಆ ಹಣ ಬಹರಯವರ ಸಮಕಮ ಆರಹಹಪ ಕಹಳಲಲ."
47. On going through the said testimony, the PW.1 has deposed, on the assumption that, on 29.09.2015 may the son of accused got married. He not clarified, whose marriage it was happened, where, but on the assumption he deposed, in that regard, it at all, he gave money definitely, the accused could have been invited him and if really he attended, he must the particulars, but he on presumption has deposed as such, hence, no reliance can the place on the same. Contrary to the earlier cross- examination, the PW.1 has deposed that, on 18.08.2015 through Judgment 51 C.C.No.23562/2016 cheque and on 29.09.2015 through cheque for Rs.2 lakhs he paid money to the accused. Thereafter, about one month or 20 days gap he gave Rs.7 lakhs. He categorically admitted, in order to show that, as alleged he paid money to the accused, he had no document. Contrary to the same, he deposed in the 5th line onwards that, after obtaining 2 cheques for Rs.5 lakhs each from the accused, he gave Rs.10 lakhs to the accused.
48. On the one stretch he deposed, after collecting 2 cheques from the accused, he handed over Rs.10 lakhs to the accused. Thereafter, he got alert and take twist by wantonly deposed that, when he asked the accused to return the money, then he gave 2 cheques for Rs.5 lakhs on 20.05.2016 and 31.05.2016. The said evidence of PW.1 demonstrates, the complainant has not approached this court with clean hands, as to alleged execution and issuance of cheques in favour of complainant. If really, any transaction as alleged by the complainant were happened definitely, there may be no chance of the PW.1 has changed his version stage by stage and date by date. The evidence of PW.1 rather supports his case it creates doubt. He also deposed, on faith he gave money to the accused. In order to repose faith, as he stated, he only knew the accused to Mr.Shivanna, though he not directly known to complainant, if he was not working as a Judgment 52 C.C.No.23562/2016 partner in his office, under which circumstances he got repose faith on the accused itself creates doubt. He also stated, the alleged transaction took place, by that time, he and accused were only present. When accused came to his office, except them, nobody should no transaction for that reason the accused was not asking for loan from the complainant. The said explanation appears to be bald, without any base for the convenient of the complainant, he deposed. If complainant paid huge amount to the accused definitely, it should be done through documentary evidence or at least, in the presence of witnesses. By ignoring the same in order to help the accused, he keep maintain silence, as to alleged lent of loan itself creates doubt as to the bonafidness of the complainant.
49. The very evidence of PW.1 has creates strong doubtful circumstances as to the financial capacity of the complainant and alleged lent of Rs.10 lakhs to the accused. When he failed to demonstrate his financial capacity and alleged lent question of accused gave Exs.P1 and P2 cheques for payment of Rs.5 lakhs each does not arise. The complainant has not satisfactorily explained, under which circumstances he got possessed the questioned cheques. Therefore, it needs to be draw the adverse inference against the complainant that, for the grounds urged by Judgment 53 C.C.No.23562/2016 the accused, complainant got possessed the questioned cheques and for the reasons better known to him, in order to extract money himself, as he admitted got filled both the cheques as per his wishes and got dishonoured. Though cheques were dishonoured, the legal notice is not served on the accused. The unserved R.P.A.D., produced at Ex.P8 discloses, the same is not served.
50. On meticulous perusal of the entries made by the postal authority the concern postman when he went to the address of accused as found in Ex.P8, he note that, on 25.07.2016, 26.07.2016 and 27.07.2016, absent. When the accused became absent in the address, all of sudden he made mentioned that, addressee refused. If at all, the address mentioned in the Ex.P8 is a residential address of the accused, how the postman has endorsed earlier he was absent and later refused. Therefore, in order to verify the genuine entries made by the postal authority, the complainant has not examined the concern postman. Mere because of postman has made such entry, is not enough to consider the notice was duly served or refused by the accused. The accused has contended that, after receipt of summons from this court, he came to know that, thereafter, through Mr.Shivanna and Mr.Ramesh, he approached the complainant filing of the case despite, receipt of money. The DW.2 has also deposed in the said Judgment 54 C.C.No.23562/2016 line, therefore, it made clear that, unless serve the legal notice on the accused, expect reply from him does not arise. Therefore, he had no opportunity to cause reply, as legal notice was not served on him. Therefore, it is the consider opinion of this court that, the complainant has utterly failed to discharge the reverse burden created on him on account of the successful rebuttable evidence placed by the accused. On account of Section 139 of Negotiable Instruments Act, as well as the relevant decisions, in view of accused proved his probable defence, it was reverse burden on the complainant to prove his case beyond the reasonable doubt.
It is well worthy to cite the decision reported in ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:
(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -
Something probable has to be brought record - Burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - Thereafter the said presumption arising under Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon presumptions under Evidence Act, 1872 Section Judgment 55 C.C.No.23562/2016 114 (common course of natural even human conduct and public and private business) -
Evidence Act, 1872 - Section 114 - Presumptions of fact under".
Added to that, in a decision of AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".
51. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused. As per the said dictums and under Section 139 of Negotiable Instruments Act, though it was created reverse burden on the complainant, he utterly failed to demonstrate the mobilization of Rs.10 lakhs and accused was requested for the loan during 1st week of August, 2015 and he lent the same during 1 st week of September, 2015 is not been proved. When he failed to demonstrate the due execution and issuance of the accused as Judgment 56 C.C.No.23562/2016 per Exs.P1 and P2 cheques, as he plead and he deposed, contrary to his own case, it has to be consider the defence set out by the accused is more probable. Under the circumstances narrated by the accused, the questioned cheques came to the possession of complainant and he made an attempt to swindle money from the accused, by himself got filled the questioned cheques. Unless, the complainant had the requisite fund of Rs.10 lakhs alleged lent to accused does not arise. Mere because of he possessed the questioned cheques of accused and himself got filled the same, as not extended the liability of the accused under the guise of payment of existence of legally recoverable debt, accused got issued the same. Viewed from any angle, the complainant has utterly failed to plead and proved his case. Hence, the accused is entitled for benefit of doubt for acquittal.
52. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
In the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
Judgment 57 C.C.No.23562/2016 "Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
53. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheques bare his signatures, that, does not mean that, the accused issued cheques in discharge of a legally payable debt.
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act -
Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to Judgment 58 C.C.No.23562/2016 rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
54. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.10 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
55. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, he is not liable to pay Exs.P1 and P2 cheques amount of Rs.10 lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheques amount and he is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheques, who is not at all liable to pay the cheques amount. The accused has Judgment 59 C.C.No.23562/2016 taken his defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheques for discharge of liability of Rs.10 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Apart from that, in a decision reported in, KCCR 12 (3) page 2057, the Hon'ble Apex Court held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
56. In the case on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show his financial capacity to lend an amount of Rs.10 lakhs to accused. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheques for discharge of Rs.10 lakhs does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheques Judgment 60 C.C.No.23562/2016 for discharge of liability of Rs.10 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
57. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheques Exs.P1 and P2 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
58. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheques pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheques in question were issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, Judgment 61 C.C.No.23562/2016 accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
59. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.10 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his case beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
60. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 62 C.C.No.23562/2016 ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 2nd day of December
- 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : S.Chikkaraju List of Exhibits marked on behalf of Complainant:
Exs.P1 and P2 : Original Cheques Exs.P1(a) & P2(a) : Signatures of accused Exs.P3 & P4 : Bank endorsements Ex.P5 : Office copy of legal notice Exs.P6 & P7 : Postal receipts Ex.P8 : Unserved R.P.A.D., cover
List of Witnesses examined on behalf of the defence:
DW.1 : P.Narayanaswmay DW.2 : Ramesh
List of Exhibits marked on behalf of defence:
Exs.D1 to D3 : Statement of accounts
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 63 C.C.No.23562/2016
02.12.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are
absent. No representation from both side
advocates, despite, web-host the case
proceedings and intimate the date of
pronouncement of judgment. Hence, as
per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.