Bangalore District Court
Gunashekar.B vs Kiran.E on 17 February, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 17th day of February - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.13517/2016
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Gunashekar.B,
S/o.Late.Balaram.L,
Aged about 61 years,
R/at No.29/1, Subbanna Chari Line,
Cotton Pet, Bengaluru-53.
(Rep. by Smt.N.L.Sheela Prasad, Adv.)
V/S
Accused : Kiran.E,
S/o.Eshwarn.S,
Aged about 32 years,
R/at. No.134, Channasandra Colony,
6th Cross, Dr.Vishnuvardhan Road,
Bengaluru-98.
And also at:
Kiran.E,
S/o.Eshwaran.S,
Aged about 32 years,
C/o. Raffiq Ahammed,
I.D.No.FS(315),
Code No.6040683,
BHEL (EDN) Mysore Road,
Bengaluru-26.
(Rep.by Sri.P.M.Chengappa, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
Judgment 2 C.C.No.13517/2016
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 17.02.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 21.03.2015 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheques of Rs.7,50,000/-.
2. In nut shall, the case of the complainant is:
The complainant and accused are well known to each other from past 4 years as colleague as they were working at BHEL.
The complainant has alleged that, during the 1st week of May, 2014, the accused approached the complainant and requested for hand loan of Rs.7,50,000/- for the purpose of his brothers appointment as Sub-Inspector Post and also meet his personal requirements and assured to repay the same within six months.
Believing the version of accused, the complainant paid the said money by way of cash to the accused. While receiving the money, the accused issued 3 post dated cheques bearing Judgment 3 C.C.No.13517/2016 Nos.102503, 1025012 and 102513 drawn on State Bank of India, Rajajinagar Branch, in favour of complainant for Rs.2,50,000/-
each, amounting to Rs.7,50,000/- dated:30.12.2015. The accused instructed the complainant to present the said cheques during December, 2015.
The complainant has further alleged that, at the instructions of accused, he presented the said cheques for encashment through his banker viz., Punjab National Bank, BHEL Branch, Mysore Road, Bengaluru. But on seeing the endorsement dated:05.01.2016, the said cheques came to be dishonoured stating "Payment Stopped by Drawer". Immediately, the complainant brought the said fact to the notice of accused and demanded for repayment, then accused expressed his financial difficulties and keep on dodging the time for one or other reasons and failed to repay the amount covered under the cheques.
Since, the complainant has no other way, then got issued legal notice through is counsel to the accused on 03.02.2016, calling upon him to pay the amount covered under the cheques within 15 days. The notice sent through R.P.A.D was came to be returned stating "Unserved" as it was intimated to the accused. As the accused has not paid the amount covered under the cheques.
Thereby, the accused has committed the offence punishable Judgment 4 C.C.No.13517/2016 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 the 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.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P9(a). 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 the 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 and also Judgment 5 C.C.No.13517/2016 subjected for cross-examination by the advocate for the complainant.
7. Heard the arguments of both side counsels. The accused counsel has also submitted his detailed 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:
1) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.7,50,000/- as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Exs.P1 to P3 cheques bearing No.102503, 102512 and 102513 dated:30.12.2015 for sum of Rs.2,50,000/- each, amounting to Rs.7,50,000/- drawn on State Bank of India, 5th Block, Rajajinagar 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:
Judgment 6 C.C.No.13517/2016
REASONS
10. 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 P9(a), they are:
a) Exs.P1 to P3 are the cheques bearing Nos.102503, 102512 and 102513 issued by the accused for sum of Rs.2,50,000/- each, dated:30.12.2015, drawn on State Bank of India, Rajarajeshwarinagar Branch, Bengaluru.
b) Exs.P1(a) to P3(a) are the alleged signatures of accused.
c) Exs.P4 to P6 is the Bank Memos dated:06.01.2016.
d) Ex.P7 is the Legal Notice dated:03.02.2016.
e) Ex.P8 is the Postal receipt.
f) Ex.P9 is the not claimed R.P.A.D cover.
g) Ex.P9(a) is the legal notice at Ex.P9 The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citation and relied upon same, it is;
a) AIR 2019 SC 1876
Judgment 7 C.C.No.13517/2016
11. In order to prove the defence of the accused, he himself choosen examined as DW.1 and produced the documents at Exs.D1 to D3. They are:
a) Ex.D1 is the acknowledgment dated:11.05.2015 given by Kengeri Police Station.
b) Ex.D2 is the true copy of complaint dated:11.05.2015 lodged by accused herein before the Kengeri Police Station regarding lost of cheque book and
c) Ex.D3 is the affidavit dated:11.05.2015 sworned by accused herein.
The DW.1 was subjected to the cross-examination by the advocate for the complainant. Apart from lead defence evidence, the DW.1 through his counsel has produced the citation and relied upon same. It is:
a) (2015) 1 SCC 99
12. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
13. After cross-examination of PW.1, 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 stated he was defence evidence and filed affidavit evidence on oath. The accused in his affidavit evidence has Judgment 8 C.C.No.13517/2016 contended that, he is working at BHEL in Bengaluru working from June, 2011 and he knew the complainant, as both are working at BHEL. The accused has further contended that, he came to know about the present case only after receipt of summons and after going through the records, he came to know about the facts leading to the present case.
The accused has further contended that, he do not have any account at State Bank of India, 5th Block Rajajinagar Branch, as mentioned in the legal notice dated:03.02.2016 as well as complaint, his affidavit evidence.
The accused has further contended that, he not issued cheques bearing Nos.102503, 102512 and 102513 drawn on State Bank of India, 5th Block Rajajinagar Branch, in discharge of his liability as alleged in legal notice dated:03.02.2016 as well as complaint and affidavit evidence. The accused has not received the legal notice at Ex.P7.
The accused has further contended that, he had account bearing No.31828606793 in State Bank of India, Rajarajeshwarinagar Branch, Bengaluru. When on 20.04.2015 he travelling from Kengeri to Kengeri Satellite Bus Stand, he had lost cheque book contending cheque leaves No.0010251 to 00102550 Judgment 9 C.C.No.13517/2016 drawn on State Bank of India of Rajarajeshwarinagar Branch, Bengaluru. Amongst the cheque leaves many of the cheque leaves were singed by him, which he was to be handed over for availing a vehicle loan.
The accused has also contended that, he intimated the said factum to his banker, they have advised him to file police complaint as such, on 11.05.2015, he lodged complaint and upon the insistence of police filed affidavit, wherein, he mentioned about the lost of cheques. The Kengeri Police have acknowledged his complaint and he produced the same in this case. The accused has submitted the copies of complaint and affidavit to his banker and requested to make stop payment pertaining to the said cheque leaves.
The accused has also contended that, hand writing made in the cheque is not of him and it was made by the advocate for complainant and the same was informed by the very complainant herein to him. The same hand writing is also found in Ex.P9 R.P.A.D cover addressed to the accused sent by the advocate of the complainant. The accused reserved his right/liberty to get the experts opinion pertaining to the hand writing in the cheque to the Judgment 10 C.C.No.13517/2016 compared with the hand writing of the advocate for the complainant.
The accused has further alleged that, he not issued those cheques for discharge of any liability and he is not have any legally enforceable debt payable to the complainant in respect of the cheques at Exs.P1 to P3. Each cheques are valid for Rs.10 lakhs, under which, it was printed in the cheques, if at all, accused suppose to give any amount to complainant as alleged, he would have issued single cheque inspite of issue 3 different cheques on the same date. The complainant has utilized cheques of the accused which got lost with the ulterior motive to make illegal gain. Hence, he prayed for his acquittal.
14. On going through the rival contentions of the parties, it made clear that, the complainant based on the questioned cheques at Exs.P1 to P3 has filed the present case, therefore, the initial statutory presumption shall be drawn in favour of complainant that, it were issued by the accused to the complainant for the discharge of existence of legally recoverable debt, unless and until contrary prove.
15. It is significant fact to note that, the accused has not admitted the very claim put forth by the complainant, but stating Judgment 11 C.C.No.13517/2016 that, he denied the transaction and clearly stated that, the amount made mentioned in the cheques are not existence of legally recoverable debt payable by him to the complainant and when he traveled from Kengeri to Kengeri Satellite Town Bus Stand on 20.04.2015 as found in Ex.D2, he lost those cheques on 20.04.2015, which were carried by him for the purpose of purchase vehicle loan, hence, at the instance of police submitted affidavit.
16. On going through the said defence taken by the accused, it discloses that, the documents from produced by the accused at Exs.D1 to D3, as per his contention, the questioned cheques at Exs.P1 to P3 were lost from his custody on 20.04.2015 itself, while he traveled in a bus from Kengeri to Kengeri Satellite Town Bus Stand. It is pertinent to note that, the complainant has projected the present case stating that, during 1st week of May, 2014, the accused him seeking for hand loan of Rs.7,50,000/- for the purpose of getting appoint of his brother for the post of S.I and to meet out his personal requirements under the assurance of repay the same within 6 months, obtained the said loan on cash. While, the accused borrow the said loan got issued Exs.P1 to P3 post dated cheques to him. Therefore, it discloses that, as per the say of complainant, the questioned cheques were issued by the Judgment 12 C.C.No.13517/2016 accused as alleged during 1st week of May, 2014. The complainant has not specified in the complaint, as to exactly when the accused approached him, how he mobilized the fund and on which date he paid the huge amount of Rs.7,50,000/- to the accused, as he alleged nothing has been stated with its better particulars. However, from the point of allegation it can gather that, the complainant has alleged during 1st week of May, 2014, he gave the alleged loan. Therefore, it noticed that, as per say of complainant, it is him to prove the said transaction. However, the initial burden on the accused to prove that, the questioned cheques were lost on 20.04.2015. It is important to note that, whether as on 20.04.2015, the complainant had possessed the questioned cheques, as he alleged in the complaint or not is to be looked into. As per the say of complainant, the accused while borrow loan during 1st week of May, 2014, got issued Exs.P1 to P3 post dated cheques to him. On meticulous perusal of those cheques it discloses, the common date:30.12.2015. Therefore, it discloses that, those dates found in Exs.P1 to P3 are subsequent to the date of lost of cheques dated:20.04.2015.
17. It is significant fact to note that, though accused has alleged, on 20.04.2015 he lost the Exs.P1 to P3 cheques while traveled, to that effect he lodged complaint as per Ex.D2 before Judgment 13 C.C.No.13517/2016 the Kengeri Police Station on 11.05.2015. The said evident discloses that, before mentioning the date in the cheque as 30.12.2015, on 11.05.2015 itself the accused got lodged complaint in the Police Station stating lost of his cheques. The suggestion made by the complainant advocate to the accused that, when the complainant yet to present those cheques to the bank for encashment colluding with the police got created the Ex.D2, the copy of the complaint is produced here in order to defeat the claim of complainant cannot be accepted, as the complainant submitted the said cheques for encashment on 04.01.2016 and bank authorities as per Ex.P4 to P6 got issued the endorsements dated:06.01.2016, therefore, it made clear that, before the complainant presented those cheques for encashment, the accused lodged complaint before the Kengeri Police Station stating they are lost. Even police also gave endorsement as per Ex.D1 stating the contents of complaint at Ex.D2. Even, the affidavit at Ex.D3 also reveal the lost of cheques from the hands of accused on 20.04.2015.
18. Any how, the accused to substantiate his contention relied upon documents at Exs.D1 to D3, which made clear that, which are prior to the date of cheques at Exs.P1 to P3, therefore, easily it cannot be ignored the contents. During the course of cross of Judgment 14 C.C.No.13517/2016 PW.1, it was suggestion to him that, those suggested about the borrowal loan of Rs.7,50,000/- for the purpose of getting Sub- Inspector job to the brother of accused and house expenses, he took loan of Rs.7,50,000/-, no date is specified, exactly on which date, he paid money to the accused, how the complainant being an official, when he was the central government employee working at BHEL, how he mobilized the fund and exactly when it was handed over to the accused, nothing has been suggested. If at all, exactly, the alleged loan of Rs.7,50,000/- were paid by the complainant to the accused, as he contended, since it is huge amount, those particulars are very much require to demonstrate. In that regard, no suggestion were made to the DW.1. However, the DW.1 has successfully withstood that, he lost those cheques, in that regard lodged complaint at Ex.D2 and police have gave endorsement and in that regard, he gave affidavit to the police.
19. Even, the cross-examination of DW.1 also he deposed that, he not received legal notice at Ex.P7 and clearly stated that, still resides in the address made mentioned in Ex.P9. The postal authority as per Ex.P9 gave the endorsement stating, 'not claimed' by the accused, hence, returned to sender. To show that, the said notice is served on accused, the endorsement made by the postal authority is to be considered as deemed service as Judgment 15 C.C.No.13517/2016 the accused resides in the said address, as on the date of issuance of legal notice. The issuance of legal notice itself is not sufficient, the accused by way of producing document at Exs.D1 to D3 and with his oral evidence has successfully rebutted the statutory presumption and case put forth by the complainant. Therefore, it is the reverse burden created on the complainant to prove the very loan transaction and guilt of the accused as contemplated under the Act.
20. In this case, the complainant has contended that, accused approached him during 1st week of May, 2014 seeking for hand loan of Rs.7,50,000/- for the purpose of getting appointment to the brother of the accused to the post of Sub-Inspector as well as to meet his personal requirements and assured to repay the same within six months and on the date of receipt of money, itself the accused got issued questioned post dated 3 cheques. Therefore, on bare reading of the said allegations made in the complaint, it discloses, the complainant has not specified, exactly when accused was approached him, is it necessary to pay bribe amount for getting the post of Sub-Inspector and what was the personal requirements of the accused, had requirement of Rs.7,50,000/- is not been pleaded. However, he subjected for cross-examination. Wherein, he deposed that:
Judgment 16 C.C.No.13517/2016 "DgÉÆæ ªÉÄà 2014 gÀ°è vÀ£Àß vÀªÀÄä£À G¥À¤jÃPÀëPÀ ºÀÄzÉÝUÉ ªÉÆzÀ®Ä DvÀ gÀÆ.10 ®PÀëªÀ£ÀÄß PÉýzÀÝgÀÄ. D «µÀAiÀÄ £ÉÆÃn¸ï, zÀÆj£À°è ºÉý®è. PÉêÀ® DvÀ¤UÉ PÉÆlÖ §UÉÎ ªÀiÁvÀæ ºÉýgÀÄvÉÛãÉ. D GzÉÝñÀzÀ «£ÀB, DgÉÆæ ¨ÉÃgÉ PÁgÀtPÉÌ £À£Àß°è ºÀt PÉý®è."
21. On going through the said testimony of PW.1, he deposed that, accused asked for the loan of Rs.10 lakhs earlier for the purpose of getting Sub-Inspector post of his brother in the month of May, 2014. He clearly admitted that, he not stated those factum in his legal notice and complaint. He more particularly deposed, except for the purpose of getting job for his brother, no other reason assigned for requesting for the loan amount. But in the complaint, he stated, also meet out personal requirement, he asked for the loan, the said testimony his case against his own pleading and stated accused asked for the loan for Rs.10 lakhs, as is also contradicts his own pleading. In order to know the genuineness of reason cited by the complainant, it requires to focus of his further cross-examination. Wherein, he deposed that:
"DgÉÆæAiÀÄ vÀªÀÄä£À£ÀÄß ¥sÉÆÃ£ï ªÀÄÄSÁAvÀgÀ JgÀqÀÄ ¨Áj ªÀiÁvÀ£Ár¹zÉÝãÉ. DvÀ£À ºÉ¸ÀgÀÄ £É£À¦®è. D gÀÆ.7,50,000/- ªÀ£ÀÄß DgÉÆæAiÀÄ vÀªÀÄä£À PÉ®¸À ¥ÀqÉAiÀÄ®Ä, ®AZÀ ¤ÃqÀĪÀ ¸À®ÄªÁVAiÉÄà £À£Àß°è PÉý ¥ÀqÉzÀÄPÉÆArzÀÝgÀÄ. AiÀiÁªÀ ¢£ÁAPÀ CµÀÄÖ ªÉÆvÀÛ ¤ÃrzÉÝ JAzÀÄ £À£ÀUÉ £É£À¦®è. ¸ÁQëAiÀÄÄ ¸ÀévÀB ªÀÄÄAzÀĪÀgÉzÀÄ, DgÉÆæUÉ Judgment 17 C.C.No.13517/2016 ªÉÆzÀ®Ä gÀÆ.7,50,000/- ªÀ£ÀÄß £ÀAvÀgÀ gÀÆ.6 ®PÀëªÀ£ÀÄß DgÉÆæUÉ ¸Á®ªÁV PÉÆnÖzÉÝ£ÀÄ. DgÉÆæ 2014 gÀ ªÉÆzÀ® ªÁgÀzÀ°è £À£Àß°è ¸Á® PÉýzÀÄÝ, ¸ÀĪÀiÁgÀÄ 15 ¢£ÀzÀ §½PÀ gÀÆ.7,50,000/- ªÀ£ÀÄß ¸Á®ªÁV PÉÆnÖzÉÝ. ¸ÀzÀj ºÀtªÀ£ÀÄß PÉÆlÖ ¸ÀĪÀiÁgÀÄ 18 jAzÀ 20 ¢£ÀUÀ¼À £ÀAvÀgÀ gÀÆ.6,00,000/- ªÀ£ÀÄß DgÉÆæUÉ PÉÆnÖzÉÝ£ÀÄ. DgÉÆæUÉ ªÉÆzÀ®Ä gÀÆ.7,50,000/- ¤ÃrzÀ §½PÀ DvÀ ¸ÁPÀµÀÄÖ ºÀt PÀrªÉÄAiÀiÁUÀÄvÀÛzÉ JAzÀÄ ºÉaÑ£À ºÀtªÀ£ÀÄß gÀÆ.6 ®PÀë PÉýzÀÝgÀÄ. D PÁgÀt CµÀÄÖ ªÉÆvÀÛ £À£Àß°è E®èzÀ PÁgÀt, «zÉñÀzÀ°è PÉ®¸À ªÀiÁqÀĪÀ £À£Àß ªÀÄUÀ£À°è gÀÆ.6 ®PÀë PÉý ¥ÀqÉzÀÄ PÉÆnÖgÀÄvÉÛãÉ. JgÀqÀ£Éà ¨Áj DgÉÆæ PÉüÀĪÁUÀ, AiÀiÁªÀ GzÉÝñÀ JAzÀÄ ºÉýgÀ°®è. £Á£ÀÄ PÁgÀt PÉüÀzÉà D ºÀtªÀ£ÀÄß PÉÆnÖzÉÝãÉ. DgÉÆæUÉ ¤ÃrzÀ ¸ÀA¥ÀÇtð ºÀt £À£Àß ªÀÄUÀ¤AzÀ PÉý ¥ÀqÉ¢zÉÝãÉ. D §UÉÎ zÁR¯É ºÁdgÀÄ ¥Àr¹®è. zÁR¯É ºÁdgÀÄ ¥Àr¸À®Ä vÉÆAzÀgÉ EgÀ°®è."
22. On going through the said testimony of PW.1, he deposed, he made telephonic conversation with the younger brother of the accused and he does not remember his name. He deposed that, for the purpose of getting Sub-Inspector job and pay the bribe, he paid the loan of Rs.7,50,000/- to the accused and more particularly he deposes, on which date, he paid the said money, he does not remember, but volunteers that, earlier he gave Rs.7,50,000/- to the accused and later paid Rs.6 lakhs to him. In Judgment 18 C.C.No.13517/2016 respect of the same he filed present case for Rs.7,50,000/- and another case in C.C.No.5139/2017 for Rs.6 lakhs he filed. He deposes that, in the 1st week of May, 2014, the accused asked for the loan and after lapse of 15 days, he gave Rs.7,50,000/- as loan. Thereafter, without clearing the said loan, once gain he claimed that, after lapse of 18 to 20 days, from the lent of earlier loan against he paid Rs.6 lakhs to the accused, as he said, Rs.7,50,000/- were shortage.
23. It is significant fact to note that, complainant has stated that, he claimed to be paid the loan of Rs.7,50,000/- and Rs.6 lakhs respectively within the span of 18 to 20 days. Was it possible to a person without obtaining any security document and on the assurance of repayment as well as confirming the reasons for compulsion for the requirement of money, paid the said money, no such acceptable explanation is forth coming from the side of complainant. However, the PW.1 has deposed that, since he had no such amount, he took Rs.6 lakhs from his son, who worked at Abroad. He also deposed that, at the time of accused borrowed the loan of Rs.6 lakhs on the 2nd time, he had not discloses, the reason and more particularly he deposed, without asking for the reason he paid the said money to the accused. The PW.1 has deposed that, the entire money paid to the accused were taken by Judgment 19 C.C.No.13517/2016 his son and paid to the accused, in that regard, not produced any document and no impediment to produce the same. The evidence of PW.1 made it clear that, the complainant had not paid his own money, but he collected money from his son from Abroad and alleged to be paid to the accused of Rs.7,50,000/- as well as Rs.6 lakhs respectively, as involved in the present case as well as in C.C.No.5139/2017. Therefore, it made clear that, the complainant has admitted, he had no such money in his hand, as on the alleged date of payment, therefore, he claimed, gathered money through his son. Therefore, sent money from Abroad, to the account of complainant in Bengaluru, definitely, it should be through the bank process or any other financial transaction done, if so, definitely, it should be reflected in the documents. In that regard, the complainant though undertakes to produced documents, not produced any such document, which reveal he got received the exact money from his son enable him to pay to the accused. In that regard, no document nor acceptable explanation is forth coming from the side of complainant. The complainant failed to demonstrate the mobilization of fund either Rs.7,50,000/- or Rs.6 lakhs. When complainant was working as Engineer in BHEL, it is nothing, but the Central Government Employment. While in-service doing such monetary transaction, Judgment 20 C.C.No.13517/2016 definitely, it requires prior permission or at least shall report to the higher authority of the complainant, in that regard, no explanation or document is produced by the complainant.
24. Though complainant has prosecuted the matter, in his cross-examination, he deposed that:
"¢£ÁAPÀ 03.02.2016 ºÁUÀÆ 26.02.2016 gÀAzÀÄ DgÉÆæUÉ, DvÀ¤UÉ ¸ÀA§AzÀs¥ÀlÖ ZÉPÀÄÌUÀ¼À §UÉÎ ¥ÀævÉåÃPÀ JgÀqÀÄ £ÉÆÃn¸ïUÀ¼À£ÀÄß ¤ÃrzÀÄÝ CzÀgÀ §UÉÎ £À£ÀUÉ UÉÆvÀÄÛ. DgÀÉÆæUÉ D JgÀqÀÄ £ÉÆÃn¸ïUÀ¼À£ÀÄß ¤ÃqÀĪÁUÀ ªÉÆvÀÛ DvÀ PÉÆqÀ¨ÉÃPÉAzÀÄ £Á£ÀÄ w½¹zÉÝ, G½zÀ «µÀAiÀĪÀ£ÀÄß ªÀQîgÉà §gÉ¢gÀÄvÁÛgÉ. £Á£ÀÄ zÁR°¹gÀĪÀ ¥ÀævÉåÃPÀ JgÀqÀÆ zÀÆj£À ¸ÀASÉåB13517/16 ªÀÄvÀÄÛ 5139/17 UÀ¼À°è PÀÆqÀ DgÉÆæUÀÉ ºÀt ¤ÃrzÀ §UÉÎ ªÀQîjUÉ w½¹gÀÄvÉÛãÉ. CªÀgÉà zÀÆj£À ¸ÀAUÀwUÀ¼À£ÀÄß w½¹gÀÄvÁÛgÉ. CzÉà jÃw D JgÀqÀÄ ¥ÀæPÀgÀtUÀ¼À°è ªÀQîgÀÄ vÀAiÀiÁj¹zÀ ¥ÀæªÀiÁt ¥ÀvÀæPÉÌ £Á£ÀÄ ¸À» ªÀiÁrzÉÝãÉ."
25. On going through the said evidence of PW.1, he deposed that, he knew got issued 2 separate cheque bounce notices to the accused on 03.02.2016 and 26.02.2016. He deposed that, while gave notice to the accused, he stated the accused has to pay money to him and rest of the matter were written by his advocate. The PW.1 has deposes that, in both the cases, he informed to his Judgment 21 C.C.No.13517/2016 advocate that, he paid money to accused and his advocate were wrote the matter in both the cases. Even he deposed that, his advocate prepared the affidavit, to which he singed. The said evidence also discloses, the complainant was not known to the facts and circumstances made in the complainant as well as affidavit, but he stated, he only informed to his advocate, as to the alleged payment of money not stated about the facts. Therefore, it is him to demonstrate, who explained the facts and circumstances narrated in the complaint is not been satisfactorily explained and his version appears to be discloses, it was the story created by his advocate. Therefore, it is also one of circumstances to disbelieve his version.
26. In this case, the complainant has contended that, the accused agreed to repay the same within six months and on the date of receipt of money, he took 3 post dated cheques from the accused, which are none other than the Exs.P1 to P3. In his cross-examination he deposed that:
"£À£Àß zÀÆgÀÄ ªÀÄvÀÄÛ £ÉÆÃn¸ï£À°è DgÉÆæ 6 wAUÀ¼À M¼ÀUÉ ºÀt ªÀÄgÀ½¸ÀĪÀÅzÁV w½¹zÀÝgÀÄ JAzÀÄ PÁtô¹zÉ JAzÀgÉ ¸Àj. £ÀªÉA§gï 2014 gÀ°è, DgÉÆæAiÀÄ£ÀÄß ºÀt ªÀÄgÀ½¸À®Ä PÉýzÉÝ. §gÀªÀtôUÉAiÀÄ°è PÉýgÀ°®è. DgÉÆæ ªÉÆzÀ®Ä ªÀÄÆgÀÄ ZÉPÀÄÌUÀ¼À£ÀÄß £À£ÀUÉ ¤Ãr, Judgment 22 C.C.No.13517/2016 ªÀiÁgÀ£Éà ¢£À £À¤ßAzÀ gÀÆ.7,50,000/- ºÀt vÉUÉzÀÄPÉÆArzÀÝgÀÄ. gÀÆ.6 ®PÀë DgÉÆæ £À£Àß ªÀÄ£ÉAiÀÄ°è §AzÀÄ ¥ÀqÉAiÀÄĪÁUÀ, JgÀqÀÄ ZÉPÀÄÌUÀ¼À£ÀÄß £À£ÀUÉ PÉÆlÄÖ ºÉÆÃVzÀÝgÀÄ. DgÉÆæAiÀÄ JzÀÄj£À¯ÉèÃ, £ÀªÀÄä ¸ÀA¸ÉÜAiÀįÉèà PÉ®¸À ªÀiÁqÀÄwÛgÀĪÀ ºÁUÀÆ vÀgÀ¨ÉÃw ¥ÀqÉAiÀÄÄwÛgÀĪÀ GzÉÆåÃVUÀ¼À ªÀÄÄSÁAvÀgÀªÉà 5 ZÉPÀÄÌUÀ¼À£ÀÄß £Á£ÀÄ ¨Àswð ªÀiÁr¹zÉÝãÉ. CzÀPÉÌ ¢£ÁAPÀªÀ£ÀÄß DgÉÆæ 6 wAUÀ½¤AzÀ 10 wAUÀ¼À M¼ÀUÉ, £Á£ÀÄ ¤ªÀÈwÛAiÀiÁUÀĪÀ ¥ÀǪÀðzÀ¯Éèà ºÀt PÉÆqÀÄvÉÛãÉAzÀÄ w½¹zÀ PÁgÀt, ¢£ÁAPÀªÀ£ÀÄß PÀÆqÀ DUÀ ºÁQ¹zÉÝ£ÀÄ. ªÀiÁZïð 2015 gÀ M¼ÀV£À ¢£ÁAPÀ £Á£ÀÄ £ÀªÀÄÆ¢¸À¨ÉÃPÁVvÀÄÛ, £À£ÀUÉ C£ÀÄPÀÆ®PÀgÀªÁUÀĪÀAvÉ r¸ÉA§gï 2015 gÀ ¢£ÁAPÀªÀ£ÀÄß ¥ÀæPÀgÀt ¸ÀASÉåB13517/16 gÀ°è £ÀªÀÄÆ¢¹, G½zÀ JgÀqÀÄ ZÉPÀÄÌUÀ½UÉ ¸ÀA§AzÀs¥ÀlÖAvÉ ¹¹. £ÀA.5139/17 gÀ°è ¢£ÁAPÀ 25.01.2017 £ÀÄß £À£ÀUÉ ¨ÉÃPÁzÀAvÉ PÁtô¹PÉÆArzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. gÀÆ.7,50,000/- MAzÉà ZÉPÀÌ£ÀÄß ¥ÀqÉAiÀħºÀÄzÁVvÀÄÛ JAzÀgÉ ¸ÁQëAiÀÄÄ DgÉÆæ ºÀt ¹PÁÌUÀ¯É¯Áè ªÀÄgÀ½¸ÀĪÀÅzÁV w½¹ ¨ÉÃgÉ ¨ÉÃgÉ ªÉÆvÀÛªÀ£ÀÄß §gÉzÀÄ ZÉPÀÄÌUÀ¼À£ÀÄß ¤ÃrzÀÝgÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
27. On going through the said testimony of PW.1, he clearly admitted that, accused undertakes to repay the loan amount within 6 months, the same were made mentioned in his complaint and legal notice. He also stated that, in the month of November, he asked the accused for repayment of the loan early and not made any written request. He deposed that, accused earlier by Judgment 23 C.C.No.13517/2016 gave 3 cheques to him and on the very next date took the amount of Rs.7,50,000/- from him. He also deposed that, accused is took money of Rs.6 lakhs in his house, on the same day he took his 2 cheques. He also deposed that, in the presence of accused, through the other employees working in the training unit of BHEL, he got filled 5 cheques. Even he deposed, at the instance of accused, he undertakes to repay the loan amount within the period of 6 to 10 months, before his retirement, as he assured, he aside the person who filled the cheque, but mentioned the date. Even he deposed, within the period of March, 2015, the date ought to be mentioned, but denied that, for the convenient of the complainant mentioned the dates in the cheques and filed separate cases in the present as well as in C.C.No.5139/2017.
28. The PW.1 has deposed that, since accused undertakes to pay the money whenever he asked, hence, not took single cheque and obtained separate cheques from him. The very evidence of the PW.1 itself created doubt that, the accused himself not executed and issued cheques to him. But he deposed that, he himself through the other persons got filled 5 cheques. Therefore, it made clear that, the complainant could have been filled the cheques for his convenient. It is pertinent to note that, each cheque valid for Rs.10 lakhs, therefore, inspite of filled cheques Judgment 24 C.C.No.13517/2016 for different denominations of Rs.2,50,000/- each, could have secured one cheque for the said huge amount. The very evidence of PW.1 is not repose any confidence, as he does not discloses, exactly on which date to the accused, he paid the money. If at all, the complainant was deligent in securing post dated cheques at Exs.P1 to P3, as on the date of alleged lent, he could have obtain necessary security documents, but no such effort is been made. The very evidence of PW.1, it creates doubt. Moreover, in his cross-examination he clearly admitted that, after the cheque came to be bounced, he approached the accused asking for repayment of loan, then, he had no impediment to obtain any document, as to the liability of the accused.
29. Even, PW.1 has deposed that, the notice issued in respect of cheque bounce amount of Rs.7,50,000/- were not served on accused, but he deposed, notice in respect of cheques Rs.6 lakhs in C.C.No.5139/2017 were served. The Ex.P9 postal cover discloses, the endorsement not claimed. In the backside of the said cover it also made mentioned that, intimation delivered and not claimed. To show that, the accused wantonly avoided the service of legal notice, the complainant has not said anything in his evidence. From the evidence of PW.1, it also made clear that, notice is not served on the accused.
Judgment 25 C.C.No.13517/2016
30. That apart, the evidence of PW.1, itself discloses, apart from the complainant herein, he paid loan to one Narayana and Padmaraj for sum of Rs.3 lakhs and Rs.2,50,000/- respectively, who are the employees of BHEL. It discloses that, complainant is in the habit of lent loan in his working place. If very alleged lent of loan to various persons discloses that, the complainant knew the consequence of said transaction. Without obtaining necessary permission from his authority, he involved in the lent of loan transaction, how it is possible todo so without obtaining any profit or interest is not been explained by him. Since, complainant involved in the alleged loan transaction with various persons, definitely, if at all, he paid the loan of Rs.7,50,000/- as alleged, definitely, could have obtained necessary documents, but no such document is been produced. Even, to show that, for paying bribe, he paid the huge amount of Rs.7,50,000/- for getting joint of Sub- Inspector post to the brother of the accused is also not been satisfactorily demonstrated by the complainant. The very act of the complainant from the point of pleading and his evidence discloses, by obtaining cheques, he used to lent loan, but utterly failed to prove that, he on the particular date paid sum of Rs.7,50,000/- to the accused. The very cheques at Exs.P1 to P3 dated:30.12.2015 are appears to be made and filled by the Judgment 26 C.C.No.13517/2016 complainant through his employees, after the same were lost from the custody of the accused, as found in Ex.D2 on 20.04.2015, therefore, from the point of evidence of DW.1 as well as document at Exs.D1 to D3, it made clear that, after those cheques were lost from the custody of the accused, the complainant perhaps filled the same for his convenience is to be accepted.
31. The accused has successfully proved that, those cheques were lost much earlier, hence, he lodged complaint. The very complainant herein secured the singed blank cheques of the accused got filled through his employees and mentioned the amount as per his whims and presented them for encashment. The said notice issued by him also admittedly not served on the accused. Hence, accepting any reply from the accused does not arise. The accused has successfully proved that, the amount covered under the cheques is not the existence of legally recoverable debt payable to the complainant. Despite, the accused has created reverse burden on the complainant, he utterly failed to prove that, how he mobilized the funds and on which date, what compelling circumstances, he paid the huge amount to the accused is also been not demonstrated. Totally, the complainant utterly failed to prove the guilt of the accused and to establish that, the amount covered under the questioned Judgment 27 C.C.No.13517/2016 cheques at Exs.P1 to P3 are the existence of legally recoverable debt. Hence, the accused is entitled for benefit of doubt for acquittal.
32. 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:
"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".
33. 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 bares his signatures, that, does not mean Judgment 28 C.C.No.13517/2016 that, the accused issued cheque 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 rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
34. 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.7,50,000/- to the accused. Thus, that fact itself is sufficient to infer that, accused is able to Judgment 29 C.C.No.13517/2016 rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
35. 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 Ex.P1 cheque amount of Rs.7,50,000/- 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 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, Judgment 30 C.C.No.13517/2016
complainant has failed to prove that, accused issued the cheques for discharge of liability of Rs.7,50,000/-. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
36. 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 to P3 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.
37. 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 31 C.C.No.13517/2016 accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
38. 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.7,50,000/- 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.
39. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 32 C.C.No.13517/2016 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 17th day of February
- 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Gunashekar.B List of Exhibits marked on behalf of Complainant:
Exs.P1 to P3 : Original Cheques Exs.P1(a) to P3(a) : Signatures of accused Exs.P4 to P6 : Bank endorsements Ex.P7 : Office copy of legal notice Ex.P8 : Postal receipt Ex.P9 : Not claimed R.P.A.D cover Ex.P9(a) : Legal notice at Ex.P9 Ex.P9 : Legal notice dtd:23.03.2013
List of Witnesses examined on behalf of the defence:
DW.1 : Kiran.E Judgment 33 C.C.No.13517/2016
List of Exhibits marked on behalf of defence:
Ex.D1 : Endorsement
Ex.D2 : True copy of police complaint
Ex.D3 : Affidavit
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 34 C.C.No.13517/2016
17.02.2020.
Comp -
Accd -
For Judgment
Judgment 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.