Bangalore District Court
K.P.Reddy @ K.Peddula Reddy vs Shashidhar @ Shashi on 18 January, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 18th day of January - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.4158/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : K.P.Reddy @ K.Peddula Reddy,
S/o.Gangireddy,
Aged about 56 years,
Sri. Venkateshwara Tent House,
Near Bidadi Police Station,
B.M.Road, Bidadi,
Ramanagaram Taluk.
(Rep. by Sri.Srinivasa, Adv.)
V/S
Accused : Shashidhar @ Shashi,
S/o.Bori Thimmaiah,
Aged about 32 years,
R/at. Medanahalli Village,
Bidadi Hobli, Ramanagara Taluk,
Ramanagara District-562 109.
(Rep.by Sri.V.Chandra, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 18.01.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.4158/2017
JUDGMENT
The complainant has presented the instant complaint against the accused on 28.12.2016 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.10 lakhs.
2. The facts given raised to this private complaint are as follows:
The accused is known to complainant for past several years and in the month of December, 2015, the accused had approached him and requested for urgent financial assistance of hand loan of Rs.10 lakhs, towards his treatment for cancer and the accused assured to repay the same out of sale consideration, which received by sell his family property. On humanitarian grounds, the complainant had agreed to provide the accused a hand loan of Rs.10 lakhs and accordingly, in between 15.12.2015 and 30.12.2015, the complainant had paid in all sum of Rs.10 lakhs by way of cash as hand loan to the accused and he availed the same from the complainant.
The complainant has further alleged that, even after 8 months from borrowing the said hand loan, the accused failed and neglected to repay the same. In the meanwhile, complainant came to know through reliable sources that a prospective Judgment 3 C.C.No.4158/2017 purchaser had agreed to purchase the property of accused and paid substantial advance amount towards the agreed sale consideration.
The complainant has further contended that, on 07.09.2016, the complainant had demanded repayment of said hand loan availed by the accused and towards its repayment, he had issued cheque drawn on ICICI Bank, Bidadi Branch bearing No.274135, dated:08.09.2016 for sum of Rs.10 lakhs. The accused had assured and promised the complainant that, cheque would be honoured on the date of its presentation.
The complainant has further averred that, at the instructions of the accused, he presented the said cheque for encashment during 2nd week of September, 2015 through his banker viz., The Shamarao Vital Co-operative Bank Ltd., Mysore Road Branch. However, to shock and surprise to him to see the endorsement dated:14.09.2016 stating the said cheque came to be dishonoured for the reasons "Signature Differs". Immediately, the complainant had informed the accused above the same and stated that, signature is proper, but he requested to re-present the same during 1st week of November, 2016. Accordingly, again he presented the said cheque for encashment through his banker, Judgment 4 C.C.No.4158/2017 even then, the same came to be dishonoured as per endorsement dated:03.11.2016 stating "Other Reasons". Thereafter, he gave legal notice through his counsel on 19.11.2016 to the correct address of the accused, but he not claimed. Hence, it has to be considered as deemed service. That apart, he not paid amount covered under the cheque nor issued any reply. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, the 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 P8. The PW.1 Judgment 5 C.C.No.4158/2017 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 D9(a) and also subjected for cross-examination by the advocate for the complainant.
7. I have 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.10,00,000/- in between 15.12.2015 to 30.12.2015 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.274135, dated:08.09.2016 for sum of Rs.10,00,000/- drawn on ICICI Bank, Bidadi Branch?
Judgment 6 C.C.No.4158/2017
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
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 P8, they are:
a) Ex.P1 is the cheque bearing No.274135 issued by the accused for sum of Rs.10,00,000/-
dated:08.09.2016, drawn on ICICI Bank, Bidadi Branch.
b) Ex.P1(a) is the alleged signature of accused.
c) Exs.P2 to P4 are the Bank Memos dated:14.09.2016 & 03.11.2016.
d) Ex.P5 is the Legal Notice dated:19.11.2016.
e) Ex.P6 is the Postal receipt.
Judgment 7 C.C.No.4158/2017
f) Ex.P7 is the unserved R.P.A.D cover and
g) Ex.P8 is the certified copy of sale deed
dated:31.08.2015 executed by complainant herein in favour of one Sridhar.N.
11. 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) 2018 (8) SCC 165
b) 2013 Crl.L.J. 3288
c) 2006 (3) CHN 518
d) AIR 2019 SC 1876
12. In order to prove the defence of the accused, he himself choosen examined as DW.1 and produced the documents at Exs.D1 to D9(a). They are:
a) Ex.D1 is the Discharge Summary dated:03.01.2016 pertaining to the accused herein issued by Mallige Hospital.
b) Ex.D2 is the Inpatient Bill dated:03.01.2016 pertaining to the accused herein issued by Mallige Hospital.
c) Ex.D3 is the Advance receipt dated:03.01.2016 pertaining to the accused herein issued by Mallige Hospital.
d) Ex.D4 is the Medicines bill from 21.12.2015 to 02.01.2016 pertaining to the accused herein issued by Mallige Hospital.
Judgment 8 C.C.No.4158/2017
e) Ex.D5 is the insurance claiming letter pertaining to the accused herein.
f) Ex.D6 is the letter dated:01.09.2006 issued by Toyota Kirloskar Auto Parts to accused herein.
g) Ex.D7 is the Identity card pertaining to the accused herein issued by issued by Toyota Kirloskar Auto Parts Pvt. Ltd.
h) Ex.D8 is the certified copy of cancellation of sale agreement dated:11.01.2016.
i) Ex.D9 is the bank passbook pertaining to one Bori Thimmaiah, who is the father of accused herein and
j) Ex.D9(a) is the some relevant entries of Ex.D9. 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 citations and relied upon same. They are:
a) 2011 (2) DCR 696
b) 2012 (1) DCR 385
c) 2003 (2) Crimes 122
d) 2014 (1) DCR 9
e) 2008 Crl. L.J. 434
f) 2014 (1) DCR 547
g) 2015 (3) DCR 132
h) 2015 (3) DCR 782
i) 2015 (3) DCR 672
j) 2014 (2) SCC 236
k) 2015 (1) DCR 642
l) 2015 (1) DCR 5
h) 2013 (2) DCR 427 Judgment 9 C.C.No.4158/2017
13. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
14. 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, the accused has denied the same and claimed to have the defence. Accordingly, the accused choosen to filed affidavit evidence on oath and he examined as DW.1. In his affidavit evidence, the accused has totally denied the very claim put forth by the complainant, as to the alleged lent of loan of Rs.10 lakhs and issuance of questioned cheque for repayment of the said loan. The accused has also contended that, no notice is served on him. The accused has specifically taken up the defence that, one Mr.Manohar, who is the none other than the brother-in-law of the complainant was entered into sale agreement with him on 14.10.2015. Due to some reasons, the said sale agreement entered into between said Manohar and accused was cancelled on 11.01.2016, at that time, of cancellation of the said sale agreement, the accused was given blank singed cheque to Manohar for repayment of the advance amount. At that juncture, due to income tax problem, Manohar demanded him to pay money in cash and accordingly, at his Judgment 10 C.C.No.4158/2017 instruction and request, the accused paid sum of Rs.10 lakhs by way of cash to him. Prior to receive summons from this court, he was under the impression that, he was taken back the singed blank cheque given to Manohar at that time of cancellation of sale agreement. Then only he came to know that, Manohar not returned the said signed blank cheque to him and in fraudulent manner, colluded with the complainant by misusing the said cheque, filed the false case.
15. The accused has further contended that, he is a cancer patient and admitted to Mallige Hospital in register No.31/32, Cresent Road, Bengaluru on 21.12.2015, took treatment and undergone surgery on 24.12.2015 and discharged from the hospital on 03.01.2016. The total medical bill was Rs.3,98,486/- and as he was the employee of Toyota Kirloskar Auto Part's Ltd., at Bidadi, he is having Medi Assist Indian Pvt. Ltd., Insurance and paid the bill amount of Rs.3,10,000/- from which, and remaining amount of Rs.88,485.80 was paid by him. Therefore, he had no financial problem to his treatment.
16. The accused has also contended that, before admitted to the hospital, his father by name Bori Thimmaiah, is economically strong person and he himself gave the amount of Rs.10 lakhs to Judgment 11 C.C.No.4158/2017 the accused through RTGS on 16.11.2015, hence, the accused was not required any amount for his cancer treatment and complainant filed the false case against him.
17. The accused has also contended that, the complainant inhumanly taken the disadvantage of the ill-health of the accused and misused the cheque by colluded with his brother-in-law and filed the false case for making illegal gain by projecting false case. When complainant himself having the financial problem as per Ex.P8, it was not having financial capacity to extend the hand loan as he alleged. The accused was not received any demand notice from the complainant till the day, hence, complaint is not maintainable and prayed for dismissal of the case. The DW.1 was also subjected for cross-examination from the advocate for the complainant.
18. No doubt, the complainant brought the present case based on the questioned cheque at Ex.P1. Since the complainant relied upon the cheque filed the present case, it has to be presume that, for due discharge of existence of legally recoverable debt, the accused got issued questioned cheque, unless and until contrary prove as per Sections 118 and 139 of Negotiable Instruments Act. Therefore, the statutory presumption is always in favour of the Judgment 12 C.C.No.4158/2017 complainant that, the accused issued the questioned cheque for discharge of existence of legally recoverable debt. Hence, it is the initial burden created on the accused to prove his probable defence to rebut the statutory presumption as well as case put forth by the complainant that, the amount covered under the cheque is in the existence of legally recoverable debt.
19. No doubt, in this case, the accused has submitted affidavit evidence. The affidavit evidence also can be looked into. If at all, ignored the affidavit evidence of the accused on technical ground, by virtue of the decisions of the Hon'ble Supreme Court in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s. Dattatraya G Hegde) and 2010 AIR SCW 2946 (Rangappa V/s. Mohan).
"The accused need not enter into witness box and he could rebut the presumption envisage under Section 139 of Negotiable Instruments Act by setting up a probable case. As such, there is no strict rule that, the accused should enter into the witness box in support or proof of his defence. The accused has got every right to prove his defence from the cross- examination of PW.1 or the materials already brought on record. It is also held that, the standard of evidence be to led by the accused is preponderance of probabilities and no proof beyond reasonable doubt. On the contrary, for the complainant he should prove his case beyond all reasonable doubt".
Judgment 13 C.C.No.4158/2017
20. As per the said dictum, the accused need not require to enter in to the witness box to prove his probable defence, but he can prove his defence by way of cross-examining the PW.1 and relied upon the documents of the complainant. From the point of above dictum, the non entering into the witness box by the accused is not a ground or hindrance to his probable defence. Therefore, whatever the defence placed by the accused by way of oral say through PW.1 is to be appreciated. No doubt, from the day one itself the accused has attack the claim of the complainant.
21. On going through the rival contentions of the parties, the addresses of the complainant and accused are not in dispute. The fact that, the accused was the employee of Toyota Kirloskar Auto Part's Ltd., at Bidadi is not in dispute. The fact that, his monthly income is not in dispute. The fact that, he suffered from cancer and admitted to Mallige Hospital, took treatment during 21.12.2015 till 03.01.2016, as contended by the accused is not in dispute. The fact that, the accused had the insurance facility of Medi Assist India Pvt., Ltd., and took the treatment, out of the said insurance claimed amount apart from investing his personal money, as contended is not in dispute.
Judgment 14 C.C.No.4158/2017
22. The fact that, the brother-in-law of the complainant by name Manohar was entered into sale agreement with the accused on 14.10.2015 is not in dispute. The fact that, on 11.01.2016, the said sale agreement came to be cancelled is also not in dispute. The fact that, questioned cheque and signature at Ex.P1(a) belongs to the accused is not in dispute.
23. In this case, the accused strongly opposed the claim put forth by the complainant based on the questioned cheque at Ex.P1. Therefore, it is initial burden on the accused to prove his probable defence. It was his specific contention that, he sold the property by virtue of sale agreement dated:14.10.2015 to one Manohar, who is none other than brother-in-law of complainant and later as per the cancellation agreement dated:11.01.2016, the said sale agreement came to be cancelled and at that time, the accused gave singed blank cheque to Manohar for repayment of the advance amount borrowed by him and at the juncture, as suggested by Manohar to avoid income tax problem, the accused paid money in cash of Rs.10 lakhs and after he came to this court, then only came to know about the questioned cheque came to the possession of complainant and he filed false case.
Judgment 15 C.C.No.4158/2017
24. On going through the said contention, it is very much clear that, the accused has projected altogether different theory stating, in respect of repayment of advance money to Manohar, the accused gave the cheque, later he paid money in cash. No doubt, in the cross-examination of PW.1, the advocate for accused had suggested about sale transaction held between Manohar and accused and its cancellation, and repayment of the hard cash of Rs.10 lakhs by the accused to Manohar, the same were not denied by the PW.1, but he answered that, he does not know about the said transaction. The PW.1 has clearly admitted that, Manohar is his brother-in-law. It was the specific defence of the accused that, the said brother-in-law of complainant for security of repayment of the advance sale consideration amount took the signed blank cheque and after the accused repaid the hard cash of Rs.10 lakhs entirely, he forgotten to take back the said cheque and the complainant has filed the present case. The said factum of handed over the singed blank cheque to Manohar is not denied by the PW.1. However, though he stated, he does not know about the sale transaction and its cancellation held between accused and Manohar, by way of making suggestion to DW.1 that:
Judgment 16 C.C.No.4158/2017 "¢£ÁAPÀ 14.10.2015 gÀAzÀÄ £Á£ÀÄ £À£Àß D¹ÛAiÀÄ£ÀÄß ªÀÄ£ÉÆúÀgï gÀªÀjUÉ ªÀiÁgÁl ªÀiÁqÀ®Ä PÀgÁgÀÄ ªÀiÁrPÉÆArzÉÝ JAzÀgÉ ¸Àj. D PÀgÁgÀ£ÀÄß ªÀÄÆgÀÄ wAUÀ¼À CªÀ¢üAiÀÄ°è KvÀPÉÌ gÀzÀÄÝ¥Àr¹PÉÆArj JA§ ¥Àæ±ÉßUÉ ¸ÁQëAiÀÄÄ, D D¹ÛAiÀÄ£ÀÄß £Á£ÀÄ ªÀÄ£ÉÆúÀgï gÀªÀjUÉ ªÀiÁgÁl ªÀiÁrgÀ°®è, PÉêÀ® gÀÆ.10 ®PÀë ¸Á®ªÀ£ÀÄß DvÀ¤AzÀ ¥ÀqÉzÀÄPÉÆArzÉÝ, CzÀ£ÀÄß ªÀÄgÀ½¹zÀ PÁgÀt ¤r.8 gÀ gÀzÀÝw ¥ÀvÀæªÀ£ÀÄß DvÀ¤AzÀ §gɬĹPÉÆArzÉÝãÉAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ªÀÄ£ÉÆúÀgï gÀªÀjAzÀ ¸Á® ¥ÀqÉzÀ §UÉÎ zÁR¯É E®è. PÁgÀt DvÀ DzÁAiÀÄ vÉjUÉAiÀÄ°è vÉÆAzÀgÉ DUÀÄvÀÛzÉ JAzÀÄ w½¹zÀ PÁgÀt D §UÉÎ zÁR¯É §gɬĹPÉÆAr®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
25. By way of making such suggestion, the complainant also admitted that, with the brother-in-law of complainant by name Manohar, the accused entered into sale agreement dated:14.10.2015 is admitted by the PW.1. Therefore, it reveal that, the sale transaction was well known to the complainant. Even, the DW.1 has deposed that, the said sale agreement was got cancelled within 3 months stating, the property was not sold to Manohar, but obtained loan of Rs.10 lakhs and by return the same got executed Ex.D8 cancellation agreement. To show that, he obtained loan from Manohar, the accused had no document. As he told him that, it will trouble in mentioning the income tax, therefore, not obtained any document. The said evidence of Judgment 17 C.C.No.4158/2017 DW.1 is not denied by the complainant by way of any suggestion. Therefore, the said factum of evidence of DW.1 made clear that, there was sale transaction and its cancellation held between complainant and accused. The accused specifically asserted that, in connection to repayment the advance money taken from Manohar, he gave questioned singed blank cheque to him and after its repayment, he not taken back the said cheque and complainant got misused the same.
26. On going through the further cross-examination of DW.1, it also discloses that:
"¤r.8 PÀæAiÀÄzÀ PÀgÁj£À gÀzÀÝw ¥ÀvÀæ DUÀĪÁUÀ £À£Àß vÀAzÉAiÀÄ ¸ÀªÀÄPÀëªÀÄ ªÀÄ£ÉÆúÀgï gÀªÀjUÉ gÀÆ.10 ®PÀë ªÀÄgÀ½¹zÉÝãÉ. D ºÀt ªÀÄgÀ½¹zÀ §½PÀ ªÀÄ£ÉÆúÀgï ªÀÄvÀÄÛ £ÀªÀÄä £ÀqÀÄ«£À ªÀåªÀºÁgÀ ¥ÀÇtðUÉÆArvÀÄÛ JAzÀgÉ ¸Àj. D ªÀåªÀºÁgÀ ªÀÄÄVzÀ §½PÀ, £Á£ÀÄ ªÀÄ£ÉÆúÀgï gÀªÀjUÉ ¤¦.1 gÀ ZÉPÀÌ£ÀÄß PÉÆqÀĪÀ CUÀvÀå EgÀ°®è, £Á£ÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëAiÀÄÄ, ªÀÄ£ÉÆúÀgï gÀªÀjUÉ ZÉPÀÌ£ÀÄß PÉÆlÖ «µÀAiÀÄ £À£ÀUÉ UÉÆwÛgÀ°®è, DzÀgÀÆ PÀÆqÀ £Á£ÀÄ £ÀUÀzÁV gÀÆ.10 ®PÀë DvÀ¤UÉ PÉÆnÖzÉÝ£ÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
27. On going through the said testimony of DW.1, it also made clear that, the complainant not disputed that, the accused had Judgment 18 C.C.No.4158/2017 repaid the advance money of Rs.10 lakhs to the brother-in-law of complainant in cash. Even, the PW.1 has clearly admitted by way of suggestion that, the transaction held between Manohar and accused pertaining to the property came to be ended. Even the suggestion made to DW.1 that, after closure of the said transaction, question of issue Ex.P1-cheque to Manohar, no requirement was made to DW.1 and he deposed falsely, but DW.1 volunteers that, he not known about the cheque were given to Manohar, though he paid Rs.10 lakhs to Manohar. Even, he further deposes that, for misusing the questioned cheque not initiated any action against Manohar. The said testimony of DW.1, by way of suggestion, the complainant has clearly admitted the repayment of Rs.10 lakhs to Manohar. Therefore, it also made clear that, Ex.D8 - Cancellation of sale agreement dated:11.01.2016 is also very much clear and recited that, the entire amount of Rs.10 lakhs received by the accused as advance amount was repaid to Manohar and in that regard, necessary recitals were made in Ex.D8. Therefore, the due payable by the accused to Manohar were set-right. No doubt, the accused stated that, he does not know about the cheque held with Manohar and after receiving summons from this court, then only Judgment 19 C.C.No.4158/2017 he came to know that, complainant based on the cheque, filed the false case.
28. In the evidence of DW.1, he also contended that, he was no need to borrow money, as his father already paid Rs.10 lakhs to the accused on 16.11.2015 to the account of accused, as found in Ex.D9 bank pass book, particularly entries marked at Ex.D9(a). Therefore, the said admitted document, which made clear that, on 16.11.2015, the accused had sum of Rs.15,01,138.98 in his account. Therefore, the said factum also discloses, one month prior to alleged payment made by the complainant between 15.12.2015 and 30.12.2015, the accused has found in Ex.D9 had Rs.15 lakhs amount in his account, as on 16.11.2015. Therefore, it made clear that, accused one month prior, the alleged borrowal of loan had Rs.10 lakhs in his account. The accused has contended that, he was employee in Toyota Kirloskar and from the Medi Assist India Pvt. Ltd., insurance, he got paid the medical expenses of Mallige Hospital took for cancer treatment in between the period 21.12.2015 till 03.01.2016 as in-patient, as found in Ex.D1 to D6 is also not denied by the complainant by way of any suggestion to accused or in the evidence of PW.1. Therefore, the document at Exs.D1 to D9 produced by the accused, which substantiate his contention, which clearly reveal that, he was the Judgment 20 C.C.No.4158/2017 employee of Toyota Kirloskar and had Medi Assist India Pvt. Ltd., Insurance coverage and admitted to the hospital in between 21.12.2015 till 03.01.2016 and born the medical expenses, out of the insurance coverage, therefore, as alleged by the complainant, the accused borrowed the loan of Rs.10 lakhs from the complainant, is to be proved by the complainant, as the accused successfully rebutted the statutory presumption as well as the very claim put forth by the complainant.
29. The production of Ex.D8 - sale agreement clearly discloses that, whatever the transaction held between Manohar and accused, very much cleared and the accused was paid Rs.10 lakhs to the brother-in-law of complainant by name Manohar. Therefore, the fact remains that, the questioned cheque given by the accused to Manohar as security, despite, clear the said amount as found in Ex.D8, he not returned the same and the complainant being a brother-in-law of Manohar got misused the said cheque. There is some force in the contention of the accused, regarding the complainant came to be in possession of the questioned cheque, therefore, as per Sections 118 and 139 of Negotiable Instruments Act, it was reverse burden on the complainant to establish his case beyond the reasonable doubt, in order to prove the guilt of he accused.
Judgment 21 C.C.No.4158/2017 It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".
In the decision reported in ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:
(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -
Something probable has to be brought record - Burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - Thereafter the said presumption arising under Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural even human conduct and public and private business) -
Evidence Act, 1872 - Section 114 - Presumptions of fact under".
Judgment 22 C.C.No.4158/2017 In the decision of AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".
30. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused.
31. On going through the complaint pleadings, it discloses, for the medial treatment of cancer, the accused approached the complainant during December, 2015, sought for hand loan of Rs.10 lakhs for treatment and assured to repay the same by sell his property. Accordingly, the complainant gave the loan between 15.12.2015 and 30.12.2015 by way of cash of Rs.10 lakhs. On reading of the said contention of the complainant, he is not very much clear exactly, when the accused came and approach the complainant asking for the hand loan of Rs.10 lakhs. Even the alleged payment made stated between 15.12.2015 and Judgment 23 C.C.No.4158/2017 30.12.205, he paid Rs.10 lakhs is also not clearly convinced, as to exactly, when he paid money to the accused. Therefore, it is require to focus on the evidence of PW.1 and DW.1.
32. The PW.1 in his cross-examination has deposed that:
"¢.20.12.2015gÀAzÀÄ gÀÆ.5 ®PÀë ªÀÄvÀÄÛ ¢.25.12.2015gÀAzÀÄ gÀÆ.5 ®PÀë ºÀtªÀ£ÀÄß DgÉÆæUÉ ¤ÃrgÀÄvÉÛãÉ. ºÀtªÀ£ÀÄß £À£Àß CAUÀrAiÀÄ°è DgÉÆæUÉ ¤ÃrgÀÄvÉÛãÉ. DgÉÆæ £À£ÀUÉ PÁå£Àìgï DVzÉ aQvÉì ¥ÀqÉAiÀÄ®Ä ºÀt ¨ÉÃPÁVzÉ JAzÀÄ ºÉý ºÀt PÉýzÀgÀÄ. aQvÉìUÁV DgÉÆæUÉ JµÀÄÖ ºÀt RZÁð¬ÄvÉAzÀÄ £Á£ÀÄ w½zÀÄPÉÆArgÀĪÀÅ¢®è. DgÉÆæ PÁå£Àìgï gÉÆÃV JAzÀÄ ªÉÆzÀ¯Éà £À£ÀUÉ UÉÆwÛvÀÄÛ JAzÀgÉ ¸Àj. DzÀÝjAzÀ DgÉÆæAiÀÄ PÁå£Àìgï aQvÉìUÁV ºÀt PÉÆnÖzÉÝãÉAzÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è."
33. On meticulous perusal of the evidence of PW.1, against his pleading he deposed that, on 20.12.2015 and 25.12.2015, he paid sum of Rs.5 lakhs each to the accused in his shop. Further he deposed that, the accused by stating, he is suffering from cancer, he took the money. The PW.1 has deposed that, he does not enquire about what was the medical expenses was incurred. The PW.1 specifically deposed that, he knew that, accused was suffering from cancer, but he denied the suggestion that, as he Judgment 24 C.C.No.4158/2017 knew that, accused was suffering from cancer, now complainant has deposed falsely.
34. On meticulous perusal of the testimony of PW.1, he deposed that, on 20.12.2015 and 25.12.2015 paid Rs.5 lakhs each in his shop. The said evidence of PW.1 goes against his own pleading that, he claimed to be paid Rs.10 lakhs in between 15.12.2015 and 30.12.2015. Therefore, the very payment of loan made to the accused itself created doubt. If at all, the complainant gave alleged loan, definitely, he must remember exactly on which date, he paid money. Contrary to the same, it also clearly admitted by the PW.1 that:
"DgÉÆæ ¢.21.12.2015 jAzÀ 03.01.2016 gÀ ªÀgÉUÉ ªÀÄ°èUÉ D¸ÀàvÉæAiÀÄ°è PÁå£Àìgï M¼ÀgÉÆÃVAiÀiÁV aQvÉì ¥ÀqÉ¢zÀÝgÀÄ JAzÀgÉ ¸Àj. D aQvÉì ºÀtªÀ£ÀÄß DgÉÆæUÉ «ªÀiÁ PÀA¥À¤AiÀĪÀgÀÄ ¥ÁªÀw¹zÀÝgÀÄ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è."
35. The PW.1 as well as the medical report produced by the accused at Ex.D2, which clearly made convinced that, from 21.12.2015 till 30.01.2016, the accused was admitted as in-patient in the Mallige Hospital. Even, he not denied the suggestion; the insurance company was paid medical expenses in the said hospital. The said testimony is goes against his own pleading and Judgment 25 C.C.No.4158/2017 very case of the complainant, as in the earlier occasion the PW.1 has deposed that, accused came to his shop and collected money on 20.12.2015 and 25.12.2015. But as he admitted that, the accused was admitted as in-patient in the hospital on 21.12.2015 and 25.12.2015. But as he admitted that, the accused was admitted as in-patient in the hospital on 21.12.2015 till 03.01.2016. Under such circumstances, how it was possible to the accused came from the hospital and collected money from the complainant in his shop inspite of took treatment in the hospital, itself created strong suspicious circumstances, as to the alleged lent of money.
36. No doubt, in the evidence of PW.1, he deposed, on 20.12.2015 he paid money to accused. But from 21.12.2015 onwards, he was admitted to the hospital. But whatever the case of PW.1, he himself got confused in mentioning the alleged payment made to accused. When accused was in hospital, he came to his shop and collected money of Rs.10 lakhs, either pleaded or as deposed by the PW.1, contrary to the same against the true affairs of the transaction. When accused himself has admitted in the hospital, he came to the shop of the complainant and borrowed the loan of Rs.10 lakhs; itself created strong suspicious circumstances in put forth claim of the complainant.
Judgment 26 C.C.No.4158/2017 Therefore, the complainant has utterly failed to prove that, he lent sum of Rs.10 lakhs to the accused, as he alleged.
37. That apart, the complainant has claiming that, he is running tent house and lent furnitures of hire. Very particularly in his cross-examination, when asked by the accused, how he mobilized the fund, then PW.1 has deposed that, he got received the advance amount in respect of the property sold by him and in that connection, he got produced the Ex.D8 sale deed. On going through the Ex.P8 sale deed produced by the complainant, it discloses the date:31.08.2015. It was held between complainant and with the vendee. The complainant in the said agreement has stated that, he got received advance consideration of Rs.20 lakhs. Even, the said agreement also discloses the reason that, for the domestic purpose along with maintenance of the family, development of his business and cleared is hand loan, he sold that property. When the registered sale agreement at Ex.P8 has recited by the complainant for his personal requirement, he sold the property to the vendee, not for the purpose of mobilizing fund or kept with him for other purpose. Therefore, whatever he sold the property, it was for his requirement, then how he came forward to pay the said money as loan to the accused by kept the same over the period of 4 months and paid to the accused, as Judgment 27 C.C.No.4158/2017 alleged is not been proved by the complainant. Thereby, the complainant has also failed to prove that, he had sufficient financial capacity to lend the alleged loan of Rs.10 lakhs to the accused. Thereby, the accused has successfully proved and suspected the financial capacity of the complainant.
38. Admittedly, the PW.1 has not reported the alleged lent of loan in his income tax returns. Even, the cheque bounce notice is also not directly served on the accused, but the shara made on Ex.P7 discloses, from 21.11.2016 till 29.11.2016, whenever the postman visited the address of the accused, got endorsed absent and finally returned. Therefore, it also made clear that, party absent whenever the postman visited to serve the notice. The Ex.P7 is a vital document discloses, the legal notice as required under Section 138(b) of Negotiable Instruments Act, is not served, thereby, not complied the mandatory provision. The accused has contended that, questioned cheque given to Manohar, who is brother-in-law of complainant, he forgotten about gave the said cheque to him and after receipt of summons from this court, then he came to know about the complainant got misused the same.
39. On going through the Ex.P1-cheque it discloses that, the signature and other writings of the cheque are appears to be in Judgment 28 C.C.No.4158/2017 different hand writing and ink, therefore, it prima facie discloses to the bare eyes that, the accused not filled the said cheque and it was the complainant has to demonstrate, it was duly executed and issued by the accused to him for discharge of existence of legally recoverable debt. But he utterly failed to prove the same. Even, PW.1 has deposed that, he not able to discloses, who filled the questioned cheque, and also deposed that, he does not know that, the hand writings, fillings and signature of the accused are altogether different. Even, he denied the suggestion that, he himself got filled the said cheque. Viewed from any angle as discussed above, the complainant has utterly failed to prove the very claim put forth by him that, he got paid Rs.10 lakhs as hand loan to the accused and in turn, for its repayment, accused got issued questioned cheque and the same came to be dishonoured. Despite, issuance of legal notice not paid the money is not been proved by the complainant. The accused by way of entered into witness box as well as by producing the documentary evidence, apart from cross-examining the PW.1, successfully established his probable defence and contradicts the case of complainant successfully. The complainant has utterly failed to prove that, the amount covered under the cheque is not the existence of legally recoverable debt. Even, he not satisfactorily Judgment 29 C.C.No.4158/2017 demonstrated how he came to be in possession of the questioned cheque pertaining to the accused. Hence, the accused is entitled for benefit of doubt for acquittal.
40. 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".
41. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused Judgment 30 C.C.No.4158/2017 admits that, cheque bares his signature; that, does not mean 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".
42. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.10 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
Judgment 31 C.C.No.4158/2017
43. 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.10 lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque 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 cheque, who is not at all liable to pay the cheque 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, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.3 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
44. 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 cheque Ex.P1 in discharge of his legally payable debt for valid Judgment 32 C.C.No.4158/2017 consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
45. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque 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, cheque in question was 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, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
46. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.10 lakhs legally recoverable debt.
Judgment 33 C.C.No.4158/2017 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.
47. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
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 18th day of January - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 34 C.C.No.4158/2017
ANNEXURE
List of Witnesses examined on behalf of Complainant:
PW-1 : K.P.Reddy @ K.Peddula Reddy List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Exs.P2 to P4 : Bank endorsements Ex.P5 : Office copy of legal notice Ex.P6 : Postal receipt Ex.P7 : Unserved R.P.A.D cover Ex.P8 : CC of sale deed
List of Witnesses examined on behalf of the defence:
DW.1 : Shashidhara List of Exhibits marked on behalf of defence:
Ex.D1 : Discharge Summary
Ex.D2 : Inpatient Bill
Ex.D3 : Advance Receipt
Ex.D4 : Pharmacy medicines bill
Ex.D5 : Insurance e-mail correspondence letter
Ex.D6 : Letter dtd:01.09.2006
Ex.D7 : ID Card
Ex.D8 : Cancellation of sale agreement
Ex.D9 : Bank passbook
Ex.D9(a) : Some relevant entries of Ex.D9
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 35 C.C.No.4158/2017
18.01.2020.
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.