Bangalore District Court
Sri. N.T.Ravikumar vs Sri. Gangadharan.C on 12 June, 2015
IN THE COURT OF THE XVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
DATED : THIS THE 12TH DAY OF JUNE 2015
PRESENT: LAKSHMINARAYANA BHAT.K., B.A., LL.B.
XVIII ADDL.C.M.M., BANGALORE
C.C.NO: 8746/2013
Complainant: Sri. N.T.Ravikumar,
S/o. R. Thippeswamy,
Aged about 48 years,
Residing at No: 141,
9th Cross, II Main Road,
BEL Layout, Vidyaranyapura,
Bangalore-560 097.
(Represented by Shri.C.P.Puttaraja.,
Advocate)
V/s.
Accused : Sri. Gangadharan.C.,
S/o. Kannan,
Aged about 50 years,
Residing at No:132,
Singapura Main Road,
Varadarajanagar,
Near Delwin Provision Stores,
Opp. Dodla Milk & Vishwa Wood
Works,
Vidyaranyapura,
Bangalore-560 097.
(Represented by Sri.A. John Bosco.,
Advocate)
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Final order Accused is found not guilty
Date of order: 12/6/2015
2 CC.No:8746/2013
JUDGMENT
The complaint was filed against the accused for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter in short referred as N.I. Act.).
2. After filing of the complaint, cognizance of the offence was taken. After recording sworn statement in pursuance of summons, presence of the accused was secured and he was enlarged on bail. The substance of accusation was recorded and the accused pleaded not guilty.
3. To prove the complaint averments, the complainant was examined as P.W.1 and has produced documents marked as per Ex.P.1 to Ex.P.7. The statement of the accused under Section 313 of Cr.P.C was recorded. The accused entered his defence and was examined as D.W.1. He has produced documents marked as per Ex.D.1 to Ex.D.4.
4. Heard the arguments. The learned advocate appearing for the accused has filed memorandum of written arguments and also placed reliance on following reported Judgments.
(1) ILR 2008 KAR 4629 in Shiva Murthy V/s.
Amruthraj.
(2) (2006) (3) Supreme Court Cases (Cri) 30 in M.S.Narayana Menon Alias Mani V/s. State of Kerala and another.
3 CC.No:8746/2013(3) 2008 AIR SCW 738 in Krishna Janardhan Bhat V/s. Dattatraya G.Hegde.
5. After analyzing the averments made in the complaint, oral and documentary evidence placed on record and after hearing the arguments, at this stage the points that arise for my determination are:-
1) Whether the complainant has proved he had advanced Rs.4,00,000/- hand loan to the accused and Ex.P.1 cheque issued in discharge of the said debt was dishonoured and even after service of notice the accused had failed to pay the amount and thereby he is guilty of the offence punishable under Section 138 of N.I.Act?
2) What order?
6. My findings on the aforesaid points are as under:-
POINT NO.1 : In the Negative, POINT NO.2 : As per final order, for the following:-
REASONS
7. POINT NO.1:- As per the complaint averments, the accused is known to the complainant and he had some financial problems in his Industry and demanded hand loan of Rs.4,00,000/- from the complainant. The complainant claimed on 8/6/2012 he had advanced Rs.4,00,000/- loan amount to the accused by cash. The accused at the time of borrowing loan, as a security for the transaction issued a post 4 CC.No:8746/2013 dated in favour of the complainant dated 28/12/2012 drawn on Karnataka Bank, Vidyaranyapura Branch, Bangalore. The complainant presented the said cheque but as per memo dated 30/12/2012 it was returned unpaid with an endorsement "Account closed". Thereafter, the complainant issued legal notice dated 15/1/2013 and the said notice was duly served on the accused on 18/1/2013. The complainant in his affidavit filed in lieu of examination-in-chief deposed as per the averments made in the complaint.
8. The accused in his defence deposed since from 2007 he is having acquaintance with the complainant. As per his evidence, in the year 2007 he had borrowed loan of Rs.20,000/- from the complainant and further deposed repaid the said amount on 23/10/2010 in the presence of witness by name Pawan Kumar. For the aforesaid loan transaction, the complainant alleged to have charged interest at the rate of 5% per month. It is admitted Ex.P.1 cheque pertains to the Bank account of the accused and the signature appearing in the said cheque. According to accused, at the time of repayment of the aforesaid loan amount, the complainant had not returned the signed cheque deposited at the time of advancement of loan. He had assured to return the cheque to the accused but he did not keep up his promise. The accused further claimed on 19/10/2010 through his Advocate he has sent a notice to the complainant calling upon him to return the signed blank 5 CC.No:8746/2013 cheque pertaining to the loan transaction of the year 2007. It is stated the complainant has misused the cheque, presented for encashment and filed a false complaint for wrongful gain. For the aforesaid reasons he has prayed for dismissal of the complaint.
9. According to the case of the complainant, on 8/6/2012 he had advanced Rs.4,00,000/- hand loan to the accused by cash. In proof of advancement of the above referred loan amount, the complainant has not placed any documentary evidence on record. That on excluding the testimony of P.W.1, there is absolutely no other documentary or oral evidence in support of advancement of above referred loan of Rs.4,00,000/- to the accused as on 8/6/2012. The complainant during his cross-examination admitted the accused is a painting contractor. As per the evidence of the accused, he is doing painting as a daily labourer and was earning Rs.200/- per day in the year 2007. During cross- examination, P.W.1 has specifically admitted he had not seen the accused doing painting work or he has obtained painting work as a contractor. The complainant has further admitted he is not aware of the income of the accused from the above said painting work. Therefore, the reason behind the complainant claimed to have advanced Rs.4,00,000/- hand loan to the accused without charging any interest and without ascertaining the purpose for which the accused had borrowed loan gives rise to a serious doubt regarding transaction. Even at the time of 6 CC.No:8746/2013 advancement of loan the complainant did not insist the accused to execute any documents in support of the transaction. In between the date of advancement of loan 8/6/2012 till the date of issuance of Ex.P.1 cheque 28/12/2012, there is a time gap of more than 6 months. In spite of this fact, the complainant did not charge any interest on the accused on the aforesaid loan amount of Rs.4,00,000/-.
10. As per the evidence of the complainant, he is doing business of supplying feeds to poultry farms. During cross-examination of P.W.1, it is elicited from the mouth of the witness that he had not shown advancement of loan of Rs.4,00,000/- to the accused in his income tax returns submitted to the concerned department. Ex.P.6 is the Income tax returns verification form produced by the complainant for the assessment year 2012-13 submitted to the concerned department. As per the document, the declared gross total income of the complainant for the financial year 2011-12 is Rs.4,99,598/- and after deductions the total income was Rs.4,36,980/-. The complainant has paid income tax of Rs.32,460/-. In the said document, there is no reference regarding advancement of loan of Rs.4,00,000/- hand loan to the accused as on 8/6/2012. In the result the inference to be drawn from the aforesaid document is that the complainant did not advance Rs.4,00,000/- hand loan to the accused as on 8/6/2012 and in the event he had advanced, the said transaction ought to have found place in Ex.P.6 income tax 7 CC.No:8746/2013 returns. The complainant cannot be allowed to contend he had not disclosed the said transaction in his income tax returns or paid income tax on the said amount in the previous financial year. But he has not disclosed the said transaction in his disclosed income tax.
11. The accused in his defence evidence claimed in the year 2007 he had borrowed a sum of Rs.20,000/- from the complainant and repaid the said amount on 23/10/2010. In proof of the above referred financial transaction, the accused has not produced any documentary evidence. In order to substantiate his contention, he has examined D.W.2 to D.W.4 witnesses. Even in order to prove Ex.P.1 signed blank cheque was deposited with the complainant in the year 2007, he could have produced his cheque book record slip or Bank account extract. From these documents, we can ascertain the date on which Ex.P.1 cheque was issued by the Bank in favour of the complainant and the date on which the other cheques pertaining to the same cheque book series were presented and encashed by the Bank. For the non-production of cheque book record slip or Bank passbook or Bank account extract, the accused has not forwarded any explanation. Ex.D.3 is the passbook produced by the accused issued by Karnataka Bank, Vidyaranyapura Branch, Bangalore. As per the said document, there is an entry pertaining to the transaction for the period 11/5/2006 to 11/11/2009. During the said period, the accused had even failed to maintain minimum balance in his 8 CC.No:8746/2013 account. During the said period, not even a single cheque pertaining to Ex.P.1 cheque series No:640641 was presented or encashed through the said Bank account. From the contents of Ex.D.3 Bank account extract, we can arrive conclusion that since the accused has failed to maintain the minimum balance in his account, the Bank authorities have closed the said account as non performing account. Therefore, the question arises from perusal of Ex.D.3 Bank account extract that the complainant had advanced Rs.4,00,000/- hand loan to the accused by way of cash is unbelievable. As per Ex.D.3, for the period 11/5/2007 to 11/11/2009 the accused was maintaining maximum Bank balance of Rs.6340/- on 7/12/2006.
12. Ex.P.1 cheque is dated 28/12/2012 issued in favour of the complainant for Rs.4,00,000/-. On perusal of the contents of the cheque, the signature and other contents are filled in different ink and hand writing. Therefore, at the time the accused had affixed his signature to the cheque, he had not filled the other contents can be inferred. In the above circumstances, a blank signed cheque has been filled subsequently as contended by the accused in his defence cannot be totally ruled out. Ex.P.1 cheque amount of Rs.4,00,000/- not includes interest for the period June 2012 to December 2012 is one of the strong circumstances appearing against the case of the complainant. Admittedly, the accused is not a friend or relative of the complainant. In the above circumstances, there was no necessity or occasion for the 9 CC.No:8746/2013 complainant to advance huge amount of Rs.4,00,000/- without charging any interest on the accused. In order to prove the accused had some financial problems in his industry as alleged in the complaint is apparently false. Admittedly, the accused is not running any Industry. The complainant himself is not aware whether the accused is doing painting contract work or he is doing painting as a daily labourer. As per Ex.P.2, the cheque issued by the accused was returned unpaid with an endorsement "Account closed".
13. The accused claimed as per Ex.D.1 notice dated 19/10/2010, he had called upon the complainant to return Ex.P.1 cheque No:640641 dated 28/12/2012. Ex.D.2 is the document produced by the accused to show he had sent copy of Ex.D.1 notice to the complainant under certificate of posting. As per Ex.D.2 endorsement dated 19/10/2010, the notice was sent to the address of Mr.S.Raman, No: 282, 5th Main, 1st Cross, Vivek Nagar further Extension, Bangalore-47 from the Advocate of the accused A.John Bosco and Associates, No.6, II Floor, Hindu Complex, Mathikere, Bangalore. But bare perusal of Ex.D.2 endorsement clearly shows the accused has produced Ex.D.2 by manipulating the document by writing the address of the complainant below the address of S.Raman as Sl.No.2. There is every possibility Ex.D.2 endorsement was in the custody of the Advocate appearing for the accused. In the absence, there was no possibility of mentioning the address of S.Raman in Ex.D.2 endorsement. Therefore, it is a clear case 10 CC.No:8746/2013 to hold Ex.D.2 has been misused by the accused in order to create a false defence to claim got issued Ex.D.1 notice to the complainant. In the above circumstances, there is every reason to arrive conclusion that Ex.D.1 notice was not sent to the complainant as on 19/10/2010. In the absence, since the notice was issued through Advocate, he could have sent the notice through Registered post. In order to put forward a false contention, the accused has produced Ex.D.1 and Ex.D.2 documents before the Court and he has miserably failed in his attempt.
14. Even if it is presumed that the accused has sent notice to the complainant as per Ex.D.1 on 19/10/2010, but he has filed a complaint against the complainant for the offence punishable under Sections 406, 420 and 423 of I.P.C. on 21/10/2013 on the file of IV Addl. Chief Metropolitan Magistrate, Bangalore. Therefore, there is an inordinate delay in between the date of sending Ex.D.1 notice and filing of complaint before the Court in connection with the said transaction. It appears only after receipt of statutory demand notice sent on behalf of the complainant as per Ex.D.3 and after receipt of summons in this proceeding, he has filed the said complaint. In this proceeding, as per order dated 7/6/2013 the summons came to be issued and after service of summons on 5/11/2013, the accused entered appearance through his Advocate. Even though the accused was aware Ex.P.1 cheque was in the custody of the complainant, he did not give instructions to the Bank for 11 CC.No:8746/2013 stop payment. This is a strong circumstance appearing in support of the case of the complainant that the accused had issued Ex.P.1 cheque in favour of the complainant in discharge of the debt. But the accused has failed to prove he had borrowed Rs.20,000/- loan from the complainant and in connection with the said transaction deposited Ex.P.1 cheque in favour of the complainant in 2007. The accused has not obtained any receipt from the complainant or certificate regarding discharge of entire loan. He has not forwarded any explanation why he had not obtained signed blank cheque from the complainant before making payment. The complainant in his evidence has also not shown the necessity or occasion for the accused to borrow huge amount of Rs.4,00,000/-. At the time of advancement of loan, the complainant did not got executed any documents from the accused except receiving Ex.P.1 cheque is one of the grounds to suspect the complaint alleged transaction. A prudent man before advancement of loan ascertains the purpose for which the accused is borrowing loan. The evidence of D.W.2 to D.W.4 witnesses have come before the Court only with an intention to assist the case of the accused and depose false evidence regarding their presence at the time of alleged loan transaction.
15. Ex.P.3 is the copy of the notice sent on behalf of the complainant and as per Ex.P.5 postal acknowledgement, the said notice was duly served. When the complainant has advanced Rs.4,00,000/- hand loan and the accused has denied the said transaction, the onus of 12 CC.No:8746/2013 proof shifts upon the complainant to prove the transaction by placing prima facie evidence. It is true as per Section 139 of the Act, there is a legal presumption in favour of the complainant that the cheque had been issued in discharge of any debt or liability and the burden to rebut the said presumption is upon the accused. But the degree of proof required to prove the defence is preponderance of probabilities and the accused is not expected to prove his defence and the evidence to be adduced is comparatively less. The aforesaid presumption will not extend to hold the cheque amount is the actual debt and the accused is liable to make payment of the said amount to the complainant. In this regard I have referred Judgment reported in AIR 2010 Supreme Court 1898 in Rangappa V/s. Mohan case. In Para No.14 of the Judgment Hon'ble Apex Court held, it is a settled proposition that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubt about existence of legally enforceable debt or liability, the prosecution can fail. I have further placed reliance on the Judgment of Hon'ble Apex Court in Kumar Exports V/s. Sharma Carpets reported in ILR 2009 KAR 1633. The learned Advocate appearing for the accused has relied upon the Judgment of M.S.Narayana Menon and in the said Judgment also Hon'ble Apex Court held the standard of proof is preponderance of probabilities. For the aforesaid reasons the complainant has failed to 13 CC.No:8746/2013 prove advancement of Rs.4,00,000/- hand loan to the accused and in discharge of the said debt, he had issued Ex.P.1 cheque. Therefore, my findings on Point No.1 is in the Negative.
16. POINT NO.2:- In view of my findings on Point No.1., the accused is liable to be acquitted for the offence punishable under Section 138 of N.I. Act. Therefore, I proceed to pass the following:-
ORDER Acting under Section 255 (1) of Cr.P.C, accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is set at liberty. The bail bond and surety bonds hereby stands discharged.
(Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 12th day of June 2015).
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.14 CC.No:8746/2013
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri. N.T.Ravikumar.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque No:640641 dated 28/12/2012
for Rs.4,00,000/-.
Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Bank endorsement.
Ex.P.3 : Office copy of demand notice.
Ex.P.4 : Postal receipt.
Ex.P.5 : Postal acknowledgement.
Ex.P.6 : Income tax returns verification form.
Ex.P.7 : Acknowledgement from Bank for having
paid income tax.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Sri. Gangadharan.C.
D.W.2 : Sri. Pawan Kumar.
D.W.3 : Sri. Kumaresha.
D.W.4 : Sri. Satish.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D.1 : Legal notice received from the
complainant.
Ex.D.2 : UCP receipt.
Ex.D.3 : Bank passbook.
Ex.D.4 : Reply notice.
Ex.D.5 : Postal receipt.
Ex.D.6 : Postal acknowledgement.
(LAKSHMINARAYANA BHAT.K)
XVIII A.C.M.M., BANGALORE.
15 CC.No:8746/2013
(Judgment pronounced in Open Court vide a separate Order) ORDER Acting under Section 255 (1) of Cr.P.C, accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is set at liberty. The bail bond and surety bonds hereby stands discharged.
XVIII A.C.M.M., BANGALORE.