Bangalore District Court
Aged About 41 Years vs Aged About 38 Years on 15 May, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 15th DAY OF MAY, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.51876/2017
Sri. Ashok Kumar .N
S/o. Narayanaswamy
COMPLAINANT Aged about 41 years, Flat No.401,
Meenakshi Paradise, 2nd Main, 3rd Block,
Hosapalya, Peekayam Layout, H.S.R Sub
Division, Bengaluru - 560 068
Sri. Shivanna .D
S/o. Dyavarayya
ACCUSED Aged about 38 years, No.93, Mathru Krupa,
(Jayamma Anjanappa), Vishwanna Layout,
Banashankari 2nd Stage, Tumkur - 572102.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.51876/2017
JUDGMENT
The complainant has approached this court with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. The case of the complainant is that, the complainant and accused being friends since 1999 - 2000 known to each other. During 1st week of January 2013, the accused had approached the complainant and requested him to provide hand loan of Rs.15 lakhs for improvement of his hotel business or catering and for other legal necessities assuring the complainant to refund the same within three years. Considering the friendship and acquaintance of the accused, the complainant had agreed and paid Rs.13 lakhs by way of cash to the accused. It is further case of the complainant that towards repayment of the said loan amount, the accused issued cheque bearing No.712338 dated 7.1.2016 for Rs.13 lakhs drawn on ICICI Bank, Jayanagar 7th block branch, Bengaluru and orally requested the complainant to present the same for encashment on 14.02.2016.
3. It is further case of the complainant that as per the assurance of the accused, the complainant presented the said cheque for encashment on 14.02.2016 through his banker - HDFC Bank, Richmond Road branch, Bengaluru. But the said cheque was returned dishonoured with an endorsement "funds 3 C.C. No.51876/2017 insufficient" on 16.02.2016. Immediately the complainant appraised the accused in that regard and the accused requested the complainant to represent the cheque in the 3rd week of February 2016. Accordingly the complainant represented the said cheque for encashment, but again the said cheque had been returned dishonoured for the reason "funds insufficient" on 22.02.2016. Thereafter the complainant got issued legal notice dated 17.03.2016 to the accused by RPAD calling upon him to pay the amount covered under the cheque. The said notice was returned on 31.03.2016 as "addressee left". Though the accused had issued the cheque for discharge of legally recoverable debt, he had not maintained sufficient amount to honour the cheque and did not pay the due amount in spite of the demand notice issued and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Accordingly on these grounds, the complainant has prayed for punishment to the accused and for grant of compensation in his favour to meet the ends of justice.
4. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued.
4 C.C. No.51876/20175. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the complainant himself examined as CW.1 and got marked as many as 7 documents as per Ex.P1 to P7 and closed his evidence. After closure of the complainant's side evidence, statement of the accused as provided U/s.313 of Cr.PC was recorded. The accused had denied the evidence of the complainant which is found against him and examined himself as DW.1 and got marked four documents as per Ex.D1 to D4 and closed his evidence and thereby evidence of the parties concluded.
7. The learned counsels for the respective parties filed detail written argument. At that stage, it is noticed as to three days delay in filing the complaint and accordingly the complainant has filed application for condonation of delay of three days. The said application is allowed by hearing both parties.
8. The learned counsel for complainant has relied upon the following citations;
a) AIR 2010 (NOC) 305 (KER.) - (Narayanan Kuttikrishnan Nair Vs State of Kerala and another.
b) AIR 2010 SC 1898 - (Rangappa Vs Mohan) 5 C.C. No.51876/2017
c) 2004 CRL. L.J. 2812 - (Abdul Raheem Vs U.P.K Mohammed Haneefa)
d) 2006 CRI.L.J. 3760 - (Smt.Umaswamy Vs K.N. Ramanath)
e) 2008 CRI. L.J. (NOC) 155 - Shalendra Alva Vs Nagesh) Similarly the learned counsel for accused has relied upon the following citations ;
a) (2014) 2 SCC 236 - (John K. Abraham vs. Simon C. Abraham & another).
b) 2016 CRI. L.J. 1267 - (Venkatesh Sadanand Pai vs. Mrs.Kanchan A. Kakodkar & another)
c) 2013 (1) DCR 326 - (Nandi Agro Fertilizers vs. D. Satish s/o. D. Jayanna)
e) 2012(2) DCR 368 - (Pawan Singhal vs Gauri Shankar Deora & another)
9. On perusal of the entire material available on file and also in the light of the written argument submitted and rulings relied, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt as contended?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is entitled for the relief as prayed in the complaint?
4) What Order?6 C.C. No.51876/2017
10. The above points are answered as under;
Point No.1 : In negative,
Point No.2 : In negative,
Point No.3 : In negative,
Point No.4 : As per the final order,
for the following.......
REASONS
11. Point Nos. 1 to 3: Since these points are inter linked and to avoid repetition they are taken together for discussion. Before peeping into the disputed facts, it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court at this stage itself. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the complainant and accused are well known to each other since long time and the complainant himself facilitated the accused to get the job in ICICI Bank. It is clear that there was a monitory transaction between the complainant and accused and the complainant used to provide financial assistance whenever the accused was in need of money. It is also admitted fact that the complainant had provided loan to the accused to start the catering business. Further admittedly Ex.P1-cheque belonged to the accused and the same was dishonoured for the reason "funds insufficient". It is also clear that after dishonour of the cheque, the complainant 7 C.C. No.51876/2017 issued legal notice to the accused and the same was returned to the sender.
12. With the above admitted facts, now the facts in dispute are analyzed, as already stated the accused has denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act while recording his plea for the said offence and also denied the incriminating circumstances found in the evidence of the complainant at the time of recording his statement U/s.313 of Cr.PC. At the time of either recording plea or statement U/s.313 of Cr.PC, the accused has not put up any positive case on his behalf. However on going through the cross-examination of CW.1 and evidence of the accused, it is found to be the defence of the accused that the accused had taken hand loan of Rs.2 lakhs from the complainant in January 2010 to start catering business and at that time, the complainant had taken one signed blank cheque of the accused as a security. The accused had repaid the said loan amount within December 2011, but the complainant did not return the security cheque stating that the same was misplaced. Now by misusing the said blank cheque the complainant filed the present false case. It is also further case of the accused that again in January - February of 2012 he had taken hand loan Rs.3 lakhs from the complainant to start hotel and restaurant and at that time also the complainant had taken two signed blank cheques as a security. The accused had repaid the said Rs.3 lakhs through bank account of himself and his wife.
8 C.C. No.51876/2017Even after repayment of the said Rs.3 lakhs also, the complainant did not return the blank cheques stating that they were also misplaced at the time of vacating the house and by misusing the said two cheques also the complainant has filed another case for Rs.9 lakhs. The accused had also denied the financial capacity of the complainant to lent huge amount of Rs.13 lakhs, service of notice on him and due of any amount in favour of the complainant and accordingly prayed for his acquittal to meet the ends of justice.
13. Relying on the oral and documentary evidence, the learned counsels for respective parties through their written argument vehemently put up the contention of the parties. It is needless to say that the proceeding U/s.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. Act is fulfilled, then it has to be presumed that the cheques were issued for discharge of the legally recoverable debt or liability. The presumption envisaged U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court 9 C.C. No.51876/2017 including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date found therein.
14. In the light of the rival contention of the parties at the out set it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. In order to prove the case of the complainant, the complainant being CW.1 reiterated the complaint averments in his sworn statement by way of affidavit which itself is treated as examination-in-chief in view of the decision of the Hon'ble Apex court in Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. In addition to that the complainant has also produced cheque dtd.07.01.2016, bank return memo dtd.24.02.2016, bank endorsement dated 16.02.2016, office copy of legal notice dated 15.03.2016, returned RPAD envelop, one postal receipt dated 17.03.2016 for 10 C.C. No.51876/2017 having sent the notice by registered post and one loan agreement as per Ex.P1 to P7 respectively to substantiate his contention. As already stated it is admitted fact that Ex.P1- cheque belonged to the accused and signed by him and the same was dishonoured for the reason "funds insufficient" as found in Ex.P2 & P3. The contents of Ex.P2 & P3- i.e cheque return memo issued by the complainant's bank reveal that the complainant had presented Ex.P1-cheque for encashment for two times through HDFC Bank and the same was dishonoured for the reason "funds insufficient" on 16.02.2016 and on 24.02.2016 as put up by the complainant. The contents of Ex.P4 to P6 are analyzed, it is clear that after dishonour of Ex.P1- cheque as found in Ex.P2, the complainant got issued legal notice dtd.15.03.2016 to the accused by registered post on 17.03.2016 calling upon the accused to pay the cheque amount and the said notice was returned with a postal endorsement dated 28.03.2016 as "unclaimed". The complainant has presented the present complaint on 15.05.2016. Therefore on going through these documents, it is clear that the complainant had presented the cheque for encashment within its validity and got issued statutory notice dated 15.03.2016 by registered post on 17.03.2016 within statutory period and presented the complaint three days after the prescribed time. As already stated the delay of three days in presenting the complaint was condoned by this court. Therefore prima facie the complainant 11 C.C. No.51876/2017 had complied with the technical requirements of Sec.138 of N.I. Act in presenting the complaint.
15. Added to the above documentary evidence, the complainant in his evidence by way of affidavit specifically stated as to compliance of requirements of Sec.138 of N.I. Act as contended. However the accused has denied service of notice on him. In this regard the learned counsel for the complainant relied upon Ex.P5 - returned RPAD envelop contending that since the registered notice returned as "unclaimed" the notice has to be deemed to be served on the accused. So far as the service of notice is concerned, as found in Ex.P5, the registered notice was returned to the sender for the reason "unclaimed". It is not the case of the accused that notice was sent to wrong address. But the accused has contended that at the time of issuance of notice, he was not residing in the address shown in the notice. In that regard the accused even produced notarized copy of the Aadhaar Card as per Ex.D4, wherein the different address of the accused is found. But in this regard, it is pertinent to note that the evidence of the accused himself reveals that Ex.D4-Aadhaar Card was made in February 2017 and whereas notice was issued on 17.03.2016 itself. Therefore on the basis of Ex.D4 it cannot be held that the accused was not residing in the address as shown in the notice.
12 C.C. No.51876/201716. Admittedly, the registered notice was returned for the reason "unclaimed". It is not the defence of the accused that he was not at all residing in the address shown in the legal notice. This being the fact it is the accused who has to show that he was not residing in the given address as on the date of issuance of notice. But absolutely there is no material made available on behalf of the accused in that regard except his oral assertion. It is needless to say that mere denial of the service of notice is not sufficient to hold that notice was not served on the accused or to hold that the accused was not residing in the address shown in the notice in the absence of convincing and acceptable evidence to the contrary. It is also pertinent to note that the notice sent by registered post on behalf of the complainant was returned as "unclaimed" as found in Ex.P5 and whereas summons sent by this court in the year 2017 to the same address is returned as "addressee left". If at all the accused was not residing in the address given in the notice, then the registered notice should have returned as "addressee left" or "addresee not residing in the address" or "no such person etc"
and not for the reason "unclaimed". There are no reasons to disbelieve the postal endorsement found in Ex.P5. It is needless to say the when the notice was sent to the correct address of the accused, the accused has to receive the same. If he did not receive the registered post, then it has to be deemed that it is served on him. Therefore this court is of the considered view that the contention of the accused that notice was not served on 13 C.C. No.51876/2017 him cannot be accepted. Though the learned counsel for the accused cross-examined the complainant in this regard he could not elicit anything from his mouth so as to disbelieve the case of the complainant in this regard. Therefore on conjoint reading of the entire oral and documentary evidence, their remains no doubt that the complainant had complied with all the requirements of Sec.138 of N.I. Act. This being the fact, as discussed earlier, in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available U/s.139 of N.I. Act is required to be drawn and shall presume that the accused had issued the cheque as per Ex.P1 towards discharge of legally recoverable debt. It is also to be presumed that cheque was issued for consideration on the date as mentioned therein.
17. It is well settled principle of law through catena of decisions that, though the statutory presumptions available U/ss.118 and 139 of N.I. Act are mandatory in nature, they are rebuttable one. It is needless to say that when the complainant proves the requirements of Sec.138 of N.I. Act, the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the presumptions with all preponderance of probability with clear, cogent and convincing evidence though not beyond all reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts shoulder 14 C.C. No.51876/2017 of the complainant. It is also well settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also well settled principle that in order to rebut the presumption it is not imperative on the part of the accused to step into the witness box and he may discharge his burden on the basis of the material already brought on record and on the basis of the facts elicited in the cross-examination of the complainant. It is also equally true that, if the accused places such evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decision of the Hon'ble Apex court reported in (2006) 3 SCC (Crl.) 30 - (Tamilnad Mercantile Bank Ltd., Vs M/s.Subaiah Gas Agency and others), ILR 2009 (2) 1633 - (Kumar Exports Vs Sharma Carpets), AIR 2008 (SC) 1325 (Krishna Janardhan Bhat Vs. Dattathraya G. Hegde), 2013 SAR (CRI) 373 - (Vijay Vs Laxman and another) and AIR 2010 (SC) 1898 -
(Rangappa Vs. Mohan). Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
18. In view of the defence taken by the accused, as against the claim of the complainant, now the evidence available on behalf of the accused is analyzed, the accused himself examined as DW.1 in support of his defence and also produced bank statement relating to his account as well as the account of his wife maintained in ICICI Bank as per Ex.D1 & D2 and also 15 C.C. No.51876/2017 produced statement of account issued by ICICI Bank as per Ex.D3 to substantiate his contention. As already stated the accused has totally denied the existence of any due/debt in favour of the complainant and so also issuance of Ex.P1-cheque in favour of the complainant towards discharge of any due/debt as put up by the complainant. It is admitted fact that there was a several monitory transactions between the complainant and accused. So far as the monitory transaction as put up by the complainant is concerned, as argued by the learned counsel for the accused, there is no any documents to support the same. In this case the contents of legal notice are analyzed, nowhere the complainant has stated as to when the accused had approached seeking financial assistance and also when exactly the complainant had lent Rs.13 lakhs to the accused. The notice is totally silence in that regard. Whereas in the complaint, the complainant contended that during the 1st week of January 2013, the accused had approached him and requested to provide hand loan of Rs.15 lakhs for improvement of his hotel business or catering and for other legal necessities and considering the friendship and acquaintance of the accused, the complainant had agreed and paid a sum of Rs.13 lakhs by way of cash to the accused. In the complaint also there is no specific averments as to when exactly the complainant lent a sum of Rs.13 lakhs to the accused. Whereas the affidavit evidence of the complainant is analyzed, there also the complainant has not stated as to when the accused approached him for financial assistance and when did 16 C.C. No.51876/2017 he lent the amount to the accused. But he has stated as to entering into loan agreement between himself and the accused and upon entering into the loan agreement he had paid Rs.13 lakhs to the accused. This version of the complainant himself reveals that there was a loan agreement entered into the complainant and accused for lending the money. But this fact is nowhere disclosed by the complainant either in the legal notice or in the complaint, but for the first time stated in the sworn statement.
19. So far as the loan transaction as contended by the complainant is analyzed, the evidence of the complainant reveals that he had paid the amount of Rs.13 lakhs to the accused upon entering into the loan agreement and the complainant has produced said loan agreement as per Ex.P7. But on going through the evidence on record and contents of Ex.P7, it is noticed that there is clear total inconsistencies and contradictions in the case of the complainant as to the very loan transaction itself. As already stated nowhere the complainant has stated as to Ex.P7 till filing his sworn statement and and the complainant has produced Ex.P7 after his cross-examination. But the evidence of the complainant during cross-examination is analyzed, the complainant has specifically stated that "£Á£ÀÄ DgÉÆæUÉ ºÀtªÀ£ÀÄß PÉÆlÖ PÀÄjvÀÄ DgÉÆæ¬ÄAzÀ D£ï rªÀiÁAqï ¥Áæ«Ä¸Àj ¥ÀvÀæªÀ£ÁßUÀ°Ã CxÀªÁ AiÀiÁªÀÅzÉà zÁR¯ÁwAiÀÄ£ÁßUÀ°Ã ¥ÀqÉzÀÄPÉÆArgÀ°®è." This version of the complainant himself reveals that he had not taken 17 C.C. No.51876/2017 any document from the accused evidencing the loan transaction. If that is the case it is not understood how Ex.P7 came into existence subsequently. It is also pertinent to note that during cross-examination, the complainant further stated "DgÉÆæAiÀÄÄ £À£Àß §½ MAzÉà ¨ÁjUÉ ºÀ¢ªÀÄÆgÀÄ ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß vÉUÉzÀÄPÉÆArgÀ°®è, ¸ÁQë ºÉüÀÄvÁÛgÉ ºÀAvÀ ºÀAvÀªÁV MªÉÄä JgÀqÀÄ ®PÀë, ªÀÄvÉÆÛªÉÄä ªÀÄÆgÀÄ ®PÀë, E£ÉÆߪÉÄä JgÀqÀÄ ®PÀë »ÃUÉ ¨ÉÃgÉ ¨ÉÃgÉ ¸ÀªÀÄAiÀÄzÀ°è vÉUÉzÀÄPÉÆArzÀÝgÀÄ JAzÀÄ. AiÀiÁªÀ AiÀiÁªÀ ¢£ÁAPÀUÀ¼ÀAzÀÄ DgÉÆæAiÀÄÄ £À¤ßAzÀ D jÃw ºÀt ¥ÀqÉ¢zÀÝgÉA§ÄzÀ£ÀÄß £À£ÀUÉ ºÉüÀ¯ÁUÀĪÀÅ¢®è." This version of the complainant is analyzed, it totally against the case of the complainant as to the very loan transaction itself. As already stated it is the specific case of the complainant that the accused had approached in the 1st week of January 2013 seeking hand loan of Rs.15 lakhs and the complainant had paid him Rs.13 lakhs by way of cash. Even the affidavit evidence of the complainant is analyzed, he has specifically stated that upon entering into the loan agreement he had paid Rs.13 lakhs to the accused. Therefore it is clear that the complaint averments as well as examination-in-chief of the complainant reveal as to payment of Rs.13 lakhs at once to the accused, but the above evidence contrary to it. Further, it is also noticed from the above evidence that even the complainant is not aware of the date on which he had lent the amount to the accused as stated by him. Further the complainant during his cross-examination further deposed that "DgÉÆæAiÀÄÄ ¤.¦.7 PÉÌ £À£Àß ¸ÀªÀÄPÀëªÀÄzÀ°èAiÉÄà ¢£ÁAPÀ 26-01-2010 gÀAzÀÄ ¸À» ªÀiÁrzÀÝgÀÄ. ¤.¦.7 PÉÌ CgÉÆæAiÀÄÄ 18 C.C. No.51876/2017 ¸À» ªÀiÁqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è ¯ÉÆÃPÉñï PÀĪÀiÁgï ªÀÄvÀÄÛ ªÀĺÉñï J£ÀÄߪÀªÀgÀÄ EzÀÝgÀÄ. DgÉÆæAiÀÄÄ ¢£ÁAPÀ 26-01-2010 QÌAvÀ ¸ÀĪÀiÁgÀÄ MAzÀÄ wAUÀ¼À ªÉÆzÀ®Ä £À£Àß §½ ¸Á® PÉÆqÀĪÀAvÉ PÉýzÀÝgÀÄ." This version of the complainant again totally contrary to his own case as to the very loan transaction itself. The above evidence reveals that the accused had signed Ex.P7 on 26.1.2010 and the accused had sought for financial assistance from the complainant one month prior to 26.01.2010. But in this regard it is pertinent to note that Ex.P7 reveals that the agreement was made on 26.01.2010 and executed on 02.01.2013. If that is the case, it is clear that as per Ex.P7, the said document was executed on 2.1.2013 and not on 26.01.2010 as stated by the complainant. On the other hand if the defence of the accused is analyzed, this fact probabalize the defence put up by the accused as to availment of hand loan in the year 2010 as put up by him. Therefore, it is crystal clear the very loan transaction stated by the complainant is found to be prima facie false and it appears he has come up with such loan transaction to suit his claim.
20. So far as the loan agreement as put up by the complainant is analyzed, along with the oral evidence, it is certain that Ex.P7 is created subsequently. The accused has specifically denied the very execution loan agreement as per Ex.P7. In this regard evidence of the complainant himself is analyzed, it is clear that even he is not aware as to when exactly the accused had given loan agreement as stated by him. As 19 C.C. No.51876/2017 already stated there is no reference as to Ex.P7 either in the legal notice or in the complaint and in this regard absolutely no explanation is forthcoming from the complainant. If at all Ex.P7 was executed in support of the loan transaction as put up by the complainant, definitely the complainant could have stated the same in the legal notice itself or at least in the complaint. But that is not done. During the cross-examination the complainant has stated that " F ¥ÀæPÀgÀtzÀ ªÀåªÀºÁgÀªÀÅ 2013 gÀ°è DVzÀÄÝ CzÁzÀ £ÀAvÀgÀ E£ÉÆßAzÀÄ ºÀtPÁ¹£À ªÀåªÀºÁgÀªÀÅ 2014 CxÀªÁ 2015 gÀ°è DVvÀÄÛ." This version of the complainant reveals that the monitory transaction involved in this case was in the year 2013, but the contents of Ex.P7 goes contrary to the same and it refers to the loan agreement made in the year 2010. In this angle also the case of the complainant as to the very loan transaction again creates clear doubt.
21. Further Ex.P7, the alleged agreement is analyzed, from the evidence placed before this court, it is also noticed that the residential address of the complainant as shown in Ex.P7 is found to be his subsequent residential address. The complainant has stated he had purchased the said house in the year 2013 and the registered deed was executed with regard to the said house in the year 2014. It is also clear from the evidence of the complainant himself that he started to reside in the said house in between 2013 - 2014. Further he has specifically admitted that he started to reside in the said house 20 C.C. No.51876/2017 after executing the registered sale deed. As already stated the registered sale deed is found to be executed in the year 2014. With this aspect now the date of execution of Ex.P7 as found in Ex.P7 is analyzed, it is stated to be executed on 02.01.2013 by giving the specific residential address of the complainant which was purchased by him in the year 2014. Admittedly as found from the evidence of the complainant himself, he was not residing in the house shown in Ex.P7 as on 02.01.2013. When the said house itself was purchased subsequently and when the complainant started to reside in the said house thereafter, it is not understood how the address of the complainant as described in Ex.P7 was shown. The evidence of the complainant as to his residence in the address shown in Ex.P7 is analyzed, it is clear that he tried to suppress the real fact in that regard and tried to give evasive answer. Therefore there remains no doubt that Ex.P7 was manipulated subsequently and thereby no importance could be given to it so as to uphold the contention of the complainant in any angle. It is crystal clear that the complainant has suppressed the real fact and come up with the false contention with created and manipulated documents.
22. As already stated the accused has specifically denied the financial capacity of the complainant to lend such huge amount of Rs.13 lakhs, but the complainant asserted his such financial capacity. But it is pertinent to note that the complainant had not produced any piece of document to show that he had such financial capacity to lend such huge amount of 21 C.C. No.51876/2017 Rs.13 lakhs. In this regard the evidence of the complainant during his cross-examination is analyzed, the complainant during his cross-examination categorically stated that " £À£Àß §½ DgÉÆæUÉ PÉÆqÀ®Ä ºÀ¢ªÀÄÆgÀÄ ®PÀë gÀÆ¥Á¬Ä EvÀÄÛ JA§ PÀÄjvÀÄ zÁR¯Áw EgÀÄvÀÛzÉ. CzÀ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ¥Àr¸À®Ä £À£ÀUÉ AiÀiÁªÀÅzÉà vÉÆÃAzÀgÉ E®è. "This version of the complainant reveals that the complainant had documents with him to show his financial capacity to lend Rs.13 lakhs to the accused and he has no hurdle to produce the said documents. But for the reason best known to the complainant, the complainant has not opted to produce the said available documents before this court. Therefore in this regard the adverse inference has to be drawn against him. Further the evidence of the complainant reveals that he is the income tax assessee and used to pay the income tax. However it is clear from his evidence itself that he had not shown the lending of huge amount of Rs.13 lakhs in his income tax returns. There is no explanation in that regard also from the complainant. These aspect again creates doubt as to the claim of the complainant.
23. In addition to the above aspects, in the light of the specific defence taken by the accused, the evidence of the complainant himself is analyzed during cross-examination he has stated that "L¹L¹ ¨ÁåAQ£À°è SÁvÁ £ÀA§gÀÄ 000201535538 gÀ J¸ï © DPËAlÄ EzÉ JAzÀgÉ ¸Àp. ¸ÀzÀj SÁvÉUÉ ¸ÀA§A¢ü¹zÀ ¨ÁåAPï ¸ÉåÃmïªÉÄAl£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ¥Àr¸À®Ä £À£ÀUÉ AiÀiÁªÀÅzÉà vÉÆAzÀgÉ E®è. ¸ÀzÀj £À£Àß J¸ï © DPËAmïUÉ DgÉÆæ ºÁUÀÆ DgÉÆæAiÀÄ ºÉAqÀwAiÀÄ SÁvɬÄAzÀ ¸ÀĪÀiÁgÀÄ LzÀÄ ®PÀë 22 C.C. No.51876/2017 gÀÆ¥Á¬Ä 2010 gÀ ¸Á°¤AzÀ 2014 gÀªÀgÉUÉ dªÀiÁ DVgÀÄvÀÛzÉ JAzÀgÉ ¸ÁQë ºÉüÀÄvÁÛgÉ dªÀiÁ DVgÀ§ºÀÄzÀÄ CzÀ£ÀÄß ¥Àj²Ã°¹ £ÉÆÃr ºÉüÀ¨ÉÃPÀÄ ªÀÄvÀÄÛ D jÃw dªÀiÁ DVzÀÝ°è CzÀPÀÆÌ F ¥ÀæPÀgÀtzÀ ªÉÆvÀÛPÀÆÌ ¸ÀA§AzÀs«®è JAzÀÄ. He further deposed that during cross-examination that "DgÉÆæAiÀÄÄ £À¤ßAzÀ 2010 gÀ°è JgÀqÀÄ ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß ºÁUÀÆ 2012 gÀ°è ªÀÄÆgÀÄ ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß MlÄÖ LzÀÄ ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß ¸Á®ªÁV ¥ÀqÉ¢zÀÝgÀÄ JAzÀgÉ ¸ÁQë ºÉüÀÄvÁÛgÉ 2010 gÀ ¸Á®zÀ «ZÁgÀ £À£ÀUÉ £É£À¦®è. 2012 gÀ°è EgÀ§ºÀÄzÀÄ JAzÀÄ." These version of the complainant is analyzed, it clearly probabalize the defence of the accused as put up by him. Further the evidence of the complainant is meticulously analyzed, it is clear that even the complainant is not aware as to when exactly Ex.P1-cheque in question was issued.
24. At this juncture, now the evidence available on behalf of the accused is analyzed, as already stated the accused has stated his defence in his examination-in-chief. Though the learned counsel for the complainant cross-examined the accused, he could not elicit anything from his mouth so as to support the case of the complainant in any angle. The accused during his cross-examination also specifically denied the suggestions put to his mouth as to the case of the complainant specifically stating his defence even during cross-examination. The accused has produced bank statement as per Ex.D1 and D2 to show the payment made and in that regard there is no much dispute. At this juncture, it is pertinent to note that the contents of Ex.D3 i.e statement of account issued by ICICI Bank 23 C.C. No.51876/2017 for the period 01.02.2010 to 31.07.2010 reveals that previous and subsequent number cheques to the cheque in question were cleared in the year 2010 itself. This aspect also support the version of the accused.
25. As discussed above, on analyzing the evidence on record meticulously it is clear that the complainant has suppressed the real facts and come up with false contention. It also appears that the suit the claim, the complainant even went to the extent of creating documents. The prosecution launched by the complainant is found to be with malafide intention to grab the money if possible by taking undue advantage of the position of the accused. As discussed on going through the evidence on record, the defence put up by the accused found to be more probable as against the claim of the complainant. At this stage this court is also being guided by the various rulings relied by the learned counsels. The decision relied by the learned counsel for the complainant as stated supra are found to be not much helpful to the complainant to prove his claim. The said decisions cannot be made applicable to the facts of the present case in any angle. At this juncture the rulings relied by the learned counsel for the accused are analyzed, this court found that the ruling relied by the learned counsel for the accused is applicable to the facts of the present case also to some extent. In the light of the existing evidence in this case, the contents of the ruling of the Hon'ble Apex Court reported in (2014) 2 SCC 236 is analyzed, in the present case also the 24 C.C. No.51876/2017 complainant has not even placed available documents to show that he had such financial capacity to lend such huge amount and even he is not sure as to when exactly he had paid the alleged amount and when exactly the cheque in question was issued. In this angle the said decision could be made applicable to the facts of the present case so as to up hold the defence of the accused. Further the decision of the Hon'ble High court of Bombay reported in 2016 Cri.L.J. 1267 is analyzed, once again the said decision is also found to be applicable to the facts of the present case. In this case also though the complainant has produced Ex.P7 agreement at the subsequent stage, he had not stated anything about Ex.P7 agreement in the statutory demand notice and also in the complaint. The accused has denied the execution of Ex.P7 and the complainant had failed to prove its due execution. As discussed earlier Ex.P7 itself appears to be manipulated subsequently. Further admittedly the complainant has not stated as to lending of huge amount of Rs.13 lakhs in his I.T returns though he had submitted his yearly assessment as stated by him. In this regard the said citation comes to the aid of the accused. Further on analyzing the decision of the Hon'ble Delhi High Court reported in 2012 (2) BCR 368, this court found that in the present case also there is serious contradictions in the evidence of the complainant and averments made in the complaint as to very transaction itself. The said ruling is also found to be helpful to the defence of the accused to some extent.
25 C.C. No.51876/201726. Thus for the reason discussed above, this court is of the considered view that, though the complainant is entitled for presumptions U/s.139 and 118 of N.I. Act, the same are rebutted by the accused. Per contra, in the light of the available evidence, it is clear that the complainant has not revealed the material fact and his claim as to existence of due amount is also found to be unacceptable one. The contention of the accused is found to be more probable and convincing one in the light of the evidence on record. No doubt, the evidence of the accused reveals that he is the law graduate and he has not opted to take any legal action against the complainant for non-returning of the blank cheque. But only on that ground the case of the complainant cannot be accepted. Even the accused has stated during cross-examination that since he had trust with the complainant, he had not taken any action against the complainant for non-returning of the blank cheques. In the decision reported in 2013 (1) DCR 326 - (Nandi Agro Fertilizers Vs D. Satish) our Hon'ble High Court held that "If there are circumstances to prove the probable defence, that itself is sufficient to dismiss the complaint". This court is of the considered view that this principle held in the said decision is applicable to the facts of the present case also. Hence considering all these aspects, this court is of the considered view that the complainant has failed to prove the commission of the offence punishable U/s.138 of N.I. Act as against the accused and so also issuance of cheque in question towards discharge of 26 C.C. No.51876/2017 debt as put up by him. On other hand it is found that the complainant has not come to the court with clean hands and the complaint filed by the complainant is found to be with malafide intention. Therefore, Point Nos.1 and 2 are required to be answered in negative. It is needless to say that when the complainant has failed to prove Point Nos.1 & 2 in his favour as contended, it goes without saying that he is not entitled for any relief as sought for in this cases. Therefore Point Nos.1 to 3 are required to be answered in negative and answered accordingly.
27. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following....
ORDER
Acting under Section 255(1) of Cr.PC
accused is hereby acquitted for the offence
punishable under Section 138 of Negotiable
Instrument Act.
The bail bond of the accused and that of his
surety stands cancelled.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 15th day of May, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 27 C.C. No.51876/2017 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. Ashok Kumar
Witnesses examined for the defence:
DW.1 : Sri. Shivanna .D
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P2 : Bank return memo
Ex.P3 : Bank endorsement
Ex.P4 : Legal Notice
Ex.P5 : Unserved postal cover
Ex.P6 : Postal receipt
Ex.P7 : Loan Agreement
Documents marked for the defence:
Ex.D1 to D3 : Bank statements
Ex.D4 : True copy of Aadhaar card
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU