Bangalore District Court
Sathish Kumar B.R vs Umesh on 2 November, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 2nd day of November, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 17733/2015
Complainant: Sathish Kumar B.R.,
S/o. B.M. Revanna,
Aged about 41 years,
R/at Door No.21, 9th Cross,
1st Main, Magadi Road,
Bengaluru -560 023.
Accused: Umesh
R/at No.298, 13th Cross,
Vinayaka Nagar,
Vibhuthipura Main Road,
Bengaluru -560 017.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found not guilty
Date of order: 2nd November 2016
JUDGMENT
The complainant has filed this complaint u/s. 200 of Cr.P.C. against the accused for the offences punishable u/s.138 of N.I. Act.
2. The Complainant stated that the Accused is well known to him from several years and out of acquaintance, approached this Complainant in the third week of July, 2014 for a hand loan of 2 C.C No.17733/2015 Rs.6,00,000/- for his legal necessities and personal problems. The Complainant by considering the request of the Accused, had advanced a sum of Rs.6,00,000/- in the month of July 2014 by way of cash and after receipt of the loan amount, the accused had assured to repay the said amount within 6 months. After repeated requests and demand made by the Complainant for repayment, finally the accused had issued a cheque bearing No.382150 dtd.25.5.2015 for Rs.6,00,000/- drawn on Canara Bank, Mico branch, Bengaluru with a request to present the said cheque for encashment and it will be honoured on its presentation.
3. It is further submitted by the Complainant that on the assurance of the accused, he presented the cheque before his Banker Canara Bank., Mico branch, Adugodi Bengaluru for encashment on 25.5.2015 but the said cheque returned dishonoured with an endorsement "funds insufficient" and the same was informed to this Accused.
4. He further stated that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice on 3.6.2015 through RPAD as well as under Certificate of Posting calling upon the Accused to make payment of the cheque amount, within 15 days from the date of receipt of notice and the said notice was duly 3 C.C No.17733/2015 served upon this accused. After receipt of the Legal Notice, the accused has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. The Accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus cheque only with an intention to cheat this Complainant and thereby, the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
5. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through his counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
6. The complainant got examined himself as PW1 and he got produced 4 documents marked as Ex.P1 to Ex.P4 and closed his side of evidence.
7. After closure of the complainant side evidence, accused Statement u/Sec.313 Cr.P.C. recorded and read over to the accused. The accused denied the incriminating evidence in toto. The accused has not led any evidence from his side.
8. I have heard the arguments and perused the records. 4 C.C No.17733/2015
9. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/Sec.138 of N.I. Act beyond all reasonable doubts?
2. What order?
10. My findings to the above point are as under:
Point No.1 In the Negative Point No.2 As per final order for the following:
REASONS:
11. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the Complainant stepped in to the witness-box, got examined as PW1 and filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
12. PW1 deposed that the Accused is well known to him from several years and out of acquaintance, approached him in the third week of July, 2014 for a hand loan of Rs.6,00,000/- for his legal necessities and personal problems and he by considering the request of the Accused, had advanced a sum of Rs.6,00,000/- in the month of July 2014 by way of cash and after receipt of the loan amount, the accused had assured to repay the said amount within 6 months and 5 C.C No.17733/2015 after on his repeated requests and demand for repayment, finally the accused had issued his cheque bearing No.382150 dtd.25.5.2015 for Rs.6,00,000/- drawn on Canara Bank, Mico branch, Bengaluru with a request to present the said cheque for encashment and it will be honoured on its presentation.
13. He further deposed that on the assurance of the accused, he presented the cheque before his Banker for encashment on 25.5.2015 but the said cheque returned dishonoured with an endorsement "funds insufficient" and the same was informed to this Accused.
14. He further deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice on 3.6.2015 through RPAD as well as under Certificate of Posting calling upon the Accused to make payment of the cheque amount and the said notice was duly served upon this accused. He deposed that after receipt of the Legal Notice, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. He deposed that the Accused knowing fully well that he has no sufficient funds in his bank account, had issued his bogus cheque only with an intention to cheat him and thereby, the Accused has committed an offence.
6 C.C No.17733/2015
15. PW1 in order to prove his case got produced Cheque issued by this Accused marked as Ex.P.1. He deposed that the signature found on Ex.P.1 is that of this Accused, he got identified the signature of this Accused marked as Ex.P.1(a). He got produced bank endorsement marked as Ex.P.2. He got produced copy of Legal Notice along with the RPAD receipt. As the PW1 has not chosen to produce documents for having served the notice to this accused, the said notice along with RPAD receipt are marked subject to objection and production of documents for service of notice as Ex.P3 and Ex.P3(a) respectively. He got produced the application filed before the postal department marked as Ex.P4.
16. The Accused has denied the entire case of the Complainant and also denied the very fact that he borrowed hand loan of Rs.6,00,000/- from this Complainant and towards discharge of the said loan amount, he had issued his Ex.P.1 cheque and the same was bounced on its presentation for encashment. The Learned Counsel for the Accused subjected PW1 for cross-examination and he extensively cross-examined the PW1.
17. PW1 in his cross-examination admitted that the accused was also a co-employee in his factory working by him and they were colleagues. He admitted the suggestion that the owner of his factory 7 C.C No.17733/2015 had established a new branch at Magadi Town and the Management had transferred some of the workers to the Magadi Branch office to work and for this reason, there was a strike going on in his factory. Though he admitted the suggestion that the accused has not supported for the strike and he continued his work. However, he denied the suggestion that as this accused has not supported for their strike conducted by the Employees' Union, he got enmity with this accused and for this reason, they were not in good terms with each other. He denied the suggestion that the accused without tolerating the harassment given by him and his employees' union, left his job and resigning his post in the month of May 2016.
18. PW1 stated that he advanced the huge loan amount of Rs.6,00,000/- to this accused on his request and he is not aware for what purpose the accused borrowed the loan and even he has not disclosed the exact reason for purpose of loan in this proceedings. PW1 stated that he is not aware when exactly he advanced the loan amount to this accused and even he has not disclosed the date of the loan transaction either in his notice or in his complaint or in his affidavit evidence. PW1 further stated that he has not obtained any documents from this accused for the huge loan amount of Rs.6,00,000/- and even he has not demanded any interest on the loan amount.
8 C.C No.17733/2015
19. Likewise, PW1 stated that he has no documents with him to prove that he had with him a sum of Rs.6,00,000/- to advance the same in favour of this accused and as on date of Ex.P1 cheque, there existing a legally recoverable debt or other liability on this accused. PW1 stated that he is not aware whether the Ex.P1 cheque is 9-10 years old cheque and it is a old-pattern cheque. He admitted the suggestion that in Ex.P3 notice, he disclosed the date of issuance of notice as "3.6.2015" and even admitted that in the complaint he has disclosed the date as "16.5.2015". Admittedly, in the complaint as well as in the Vakalathnama filed the learned Counsel for the Complainant before this court the date was disclosed as "16.5.2015". On the contrary, the Ex.P3 notice discloses the date as "3.6.2015" and even Ex.P3 (a) RPAD receipt discloses that the notice was sent on 3.6.2015. This clearly discloses that after the complaint was prepared and signed by the Complainant, Ex.P3 notice was served.
20. Moreover, the PW1 has not chosen to produce documents before this court to prove that the Ex.P3 notice was duly served on this accused. Admittedly, the Ex.P3 and Ex.P3(a) documents were marked subject to objection with a direction to produce the document for having served the notice to this accused. The Complainant has not complied the objections by producing the document for having served the notice to the accused. Accordingly, Ex.P3 document was not 9 C.C No.17733/2015 proved as required under law to be proved. In such situation, the very complaint filed by the Complainant, is not maintainable and it holds no merit. There is no reason to believe testimony of PW1 that the notice issued as per Ex.P3 was duly served upon this accused and even inspite of service of notice, the accused has failed to make payment of the cheque amount well within the period of limitation as prescribed under law and to hold that the Complainant has filed this complaint well within the period of limitation.
21. The accused has denied the very fact that he in the month of July 2014 had borrowed the loan amount of Rs.6,00,000/- from this Complainant and he in order to repay the loan amount, had issued his Ex.P1 cheque in favour of this PW1.
22. Admittedly, the Complainant has not furnished the exact date of loan transaction and even he has not deposed when he exactly he advanced the loan amount to this accused and when exactly the accused issued his Ex.P1 cheque in his favour towards repayment of the loan amount. The notice averments as well as the complaint averments and also the affidavit evidence averments, the date of notice and signing the complaint by the Complainant, is contrary to each other, which creates a serious doubt in the mind of court about the case of the Complainant .
10 C.C No.17733/2015
23. The PW1 has utterly failed to convince this court out of these two contrary dates, which one has to be believed by this court and which one is the true and correct.
24. As I have discussed supra, if the date of signing the complaint is taken into consideration, then the issuance of notice as per Ex.P3 was after the Complainant prepared the complaint and signed the complaint. Moreover, as I have discussed supra, there is no sufficient and believable grounds to believe that the Complainant has filed this complaint well within the period of limitation after service of the notice to the accused issued u/Sec.138 (b) of N.I.Act
25. Moreover, on perusal of Ex.P1 Cheque it discloses that it is an old out-dated cheque. However, the bank has issued the endorsement by dishonouring the cheque for the reason "insufficient funds". Merely because, the bank has not dishonoured the cheque as it is out-dated, it will not become automatic that the cheque was dated 25.5.2015 and this Complainant presented the said cheque before his banker well within the period of limitation as prescribed u/Sec.138 of N.I. Act. As I have discussed supra, on perusal of Ex.P1 it clearly proves that the cheque was an outdated cheque.
26. Moreover, the PW1 in order to prove the loan transaction and also to prove the advancement of loan amount of Rs.6,00,000/- 11 C.C No.17733/2015 except adducing the oral evidence, has utterly failed to prove the existence of debt or other liability as on date of Ex.P1 cheque. There is nothing on record to believe that the accused after admitting his liability to repay the loan amount, had issued his Ex.P1 cheque on 25.5.2015 and the same was bounced on its presentation. The oral and documentary evidence adduced before this court by this PW1, is contrary to the complaint averments as well as to the documentary evidence.
27. Moreover, the PW1 in order to prove his financial capacity to advance the loan amount of Rs.6,00,000/- to this accused on his request, has not chosen to produce any piece of document before this court. There is nothing on record to believe the loan transaction and also to believe the issuance of Ex.P1 cheque on 25.5.2015 towards repayment of the loan amount.
28. Admittedly, the Complainant in this proceedings neither demanded interest on the loan amount nor he has deposed before this court that he demanded this accused to pay interest on the huge loan amount of Rs.6,00,000/-. Even these facts create a very serous doubt in the mind of court about the conduct and capacity of the PW1 to advance the huge loan amount of Rs.6,00,000/- to this accused. These doubts have not been cleared by this Complainant by adducing cogent 12 C.C No.17733/2015 and convincing evidence before this court to believe the testimony of PW1 and to believe his documents.
29. Moreover, PW1 has not produced any documents before this court to prove that he had with him a sum of Rs.6,00,000/- to advance the same to this accused and he advanced this said amount to this accused on his request.
30. Even though the accused has denied the issuance of Ex.P1 cheque in favour of PW1 towards repayment of the loan amount even though the accused admitted the fact that the Ex.P1 cheque is belonged to his bank account number, however, he has categorically denied his signature found on Ex.P1 marked as Ex.P.1(a). The accused has taken up the specific defence that the signature found on Ex.P1 cheque is not that of him and even he has not issued his Ex.P1 cheque in favour of this Complainant towards repayment of the loan amount.
31. As I have discussed supra, though PW1 in his cross- examination has denied the entire suggestions put to him on the contrary, as I have discussed supra, the accused has denied the very existence of loan as on date of Ex.P1 cheque. In such situation, the burden is heavily on this Complainant to prove the loan transaction and to prove that as on date of Ex.P1 cheque, there existing a legally dischargeable debt or other liability on this accused and this accused 13 C.C No.17733/2015 by admitting his liability and to repay the loan amount, had issued his Ex.P1 cheque. The Complainant in order to prove this fact, except adducing the oral evidence, which has been categorically denied by this accused, nothing has been placed before this court to prove his case and to believe his testimony that as on date of Ex.P1 cheque, there exiting a legally dischargeable debt or other liability on this accused.
32. Likewise, the PW1 except adducing the oral evidence that he had with him a huge amount of Rs.6,00,000/- and he advanced the said amount to this Accused on his request as a loan, has not chosen to prove the same by adducing the documentary evidence before this court.
33. Admittedly, the burden is on the PW1 to prove that he had the financial capacity to advance the huge amount of Rs.6,00,000/- and he advanced the said amount to the accused on his request. In order to prove this fact, there is no evidence from the side of this Complainant.
34. As I have discussed supra, the PW1 except adducing the oral evidence that he had advanced a huge loan amount of Rs.6,00,000/- to this Accused on his request, which has been categorically denied by this Accused, nothing has been placed before this court to believe his testimony and to prove the loan transaction 14 C.C No.17733/2015 and also to prove that as on date of Ex.P.1 cheque, there existing a legally enforceable debt or other liability on this Accused.
35. These facts create a very serious doubt in the mind of the court about the conduct and capacity of this Complainant to advance the huge loan amount of Rs.6,00,000/- in favour of this Accused and also issuance of Ex.P.1 cheque towards the repayment of the loan amount.
36. Admittedly, the Complainant except adducing the oral evidence, which has been categorically denied by this Accused, has utterly failed to clear all the doubts aroused in the mind of court by adducing cogent and convincing evidence before this court.
37. Even though the accused has not led his evidence from his side to prove his defence, however the entire burden is on this Complainant to prove his case and to prove that as on date of Ex.P1 cheque, there existing a legally recoverable debt or other liability on this accused and he by admitting his liability and in order to repay the loan amount, had issued his Ex.P1 cheque and the same was bounced. The initial burden is always on this Complainant to prove his case on the strength of his own evidence. Unless the Complainant discharge his burden, the burden will not shift on this accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. 15 C.C No.17733/2015 Moreover, it is well settled principle of law the accused need not prove his defence beyond all reasonable doubts to the satisfaction of the court. The accused can very well discharge his burden by preponderance of probabilities even by cross-examining PW1 by eliciting the truth from his mouth. Here in this case, the accused by cross-examining PW1, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act.
38. As I have discussed supra, the initial burden is always on this Complainant to prove the existence of debt or liability as on date of Ex.P1 cheque on this accused and to prove that the accused by admitting his liability in order to discharge his liability, had issued his Ex.P1 cheque.
39. As I have discussed supra, the Complainant in order to prove this fact, except adducing the oral evidence that he advanced the huge loan amount of Rs.6,00,000/- to this accused and this accused towards repayment of the loan amount, had issued Ex.P1 cheque, has not chosen to prove the same to the satisfaction of the court.
40. It is well settled principle of law that the presumption u/Sec.139 of N.I. Act is available to this Complainant only with respect to issuance of cheque for repayment of debt or other liability by this Accused. However, the burden is on this Complainant to prove 16 C.C No.17733/2015 the existence of debt or other liability as on date of Ex.P.1 cheque to the satisfaction of the court and to prove that he had the financial capacity to advance the huge amount of Rs.6,00,000/- to this Accused.
41. Here in this case, the Complainant except adducing the oral evidence that he had advanced the huge loan amount of Rs.6,00,000/- in favour of this Accused and towards repayment of the said loan amount, the Accused had issued Ex.P.1 cheque, has miserably failed to prove his case to the satisfaction of the court. The Complainant has utterly failed to prove the existence of legally recoverable debt or other liability on this Accused as on date of Ex.P.1 cheque and also to prove that the Ex.P.1 cheque issued towards the discharge of his liability to repay the loan amount.
42. The learned Counsel for the Complainant has vehemently argued that the Accused has totally failed to prove his defence to the satisfaction of the court that his cheque was misused by this Complainant by forging his signature on the cheque amount. He has argued that the accused has not taken any defence that how his cheque came into the hands of this Complainant and under what circumstances, he had issued his cheque.
17 C.C No.17733/2015
43. He further argued that by mistake and oversight the date on the complaint was wrongly written as 16.5.2015 and only because the date was wrongly disclosed on the complaint, the entire case of the Complainant, cannot be dismissed. He has argued that the Complainant before filing of this complaint, issued statutory notice as per Ex.P3 well within the period of limitation and the said notice was duly served upon this accused. He further argued that even inspite of receipt of Legal Notice, the accused neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. He has argued that by drawing an adverse inference against this accused that he after receipt of Legal Notice, by admitting the contents of the notice, did not resisted the claim of the Complainant by sending his reply. He has argued that the entire burden is on this accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act and this accused has failed to rebut the presumption available to this Complainant.
44. He further argued that the accused except cross-examining the PW1, has not adduced his oral evidence before this court that his cheque was misused by this Complainant. He has argued that the accused has not chosen to prove his defence. The accused neither lodged any complaint against this Complainant for misusing his cheque nor he has initiated any legal action for misusing his cheque 18 C.C No.17733/2015 and created the same for Rs.6,00,000/-. He further argued that the accused only with an intention to ran away from his liability to pay the cheque amount, has taken up the false defence before this court during the stage of trial.
45. He further argued that the Ex.P1 cheque is belonged to this accused and even the signature found on the said cheque is that of this accused and therefore, by drawing a presumption in favour of this Complainant u/Sec.139 of N.I. Act and also by holding that the accused has not successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act, the accused has to be convicted for the offence u/Sec.138 of N.I. Act and he has to be sentenced for imprisonment and also to impose fine. The arguments canvassed by the learned Counsel for the Complainant, is not convinced this court and it holds no merit.
46. As I have discussed supra, admittedly, the Complainant except adducing the oral evidence that he had the financial capacity to advance the huge loan amount of Rs.6,00,000/- to this Accused, has not chosen to prove the same by adducing the documentary evidence before this court. The burden is on this PW1 to prove his financial capacity to advance the huge loan amount of Rs.6,00,000/- to this Accused without claiming any interest on the loan amount. 19 C.C No.17733/2015
47. As I have discussed supra, the Complainant except adducing the oral evidence, has totally failed to prove his case by adducing documentary evidence before this court to the satisfaction of the court. Moreover, there is a clear ambiguity with respect to date disclosed in Ex.P3 notice and on the complaint which has not been cleared by the Complainant by adducing convincing evidence before this court. Likewise, the Complainant has not chosen to produce any documents before this court to prove that well within the period of limitation, he has sent Ex.P3 notice to this accused and the same was duly served upon the accused and even inspite of receipt of Legal Notice, well within the period of limitation the accused failed to comply the notice by paying the cheque amount. In such situation, it does not become automatic that the Complainant has proved his case beyond all reasonable doubts to the satisfaction of the court.
48. Likewise, there is no burden on this Accused to prove his defence beyond all reasonable doubts and this accused can very well discharge his burden by preponderance of probabilities and even by cross-examining PW1 and this Accused by cross-examining PW1 before this court, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act. In such situation, arguments of the learned Counsel for the accused that the entire burden is on this Complainant to prove his financial capacity to 20 C.C No.17733/2015 advance the huge loan amount of Rs.6,00,000/- and to prove that the accused towards repayment of the loan amount, issued his cheque in favour of this Complainant, is fully convinced this court. Likewise, his further arguments that the Ex.P1 cheque is an old out-dated 8-9 years cheque and it is an out-dated cheque when the same was presented before the bank for encashment, is also fully convinced this court. His arguments that the Complainant has totally failed to prove that as on date of Ex.P1 cheque, there existing a legally dischargeable debt or other liability on this accused and he by admitting his liability, had issued his Ex.P1 cheque and the same was bounced, is also convinced this court.
49. Admittedly, there is no burden on this Accused to prove his defence beyond all reasonable doubts. The Accused can very well discharge his burden by preponderance of probabilities and he has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act.
50. As I have discussed supra, the Complainant has utterly failed to prove his case and to prove that this Accused has committed an offence punishable u/Sec.138 of N.I. Act. The oral and documentary evidence adduced before this court by the Complainant is not sufficient and convincing to bring home the guilt of the Accused 21 C.C No.17733/2015 beyond all reasonable doubts. The entire burden is on this Complainant to bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. Unless the Complainant is discharge his initial burden, no burden will shift on this Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I Act. The Complainant has utterly failed to prove that the Accused had committed an offence punishable u/Sec.138 of N.I. Act and therefore he is liable for punishment. In such situation, the benefit of doubt goes in favour of this Accused. Hence, by taking into consideration of the facts and circumstances and evidence available on record, I answer Point No.1 in the Negative.
51. Point No.2: In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (1) of Cr.P.C., the accused is hereby acquitted for the offence punishable u/s.138 of N.I. Act.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 2nd day of November, 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bangalore 22 C.C No.17733/2015 ANNEXURE:
Witnesses examined on behalf of the Complainant: PW.1 Mr. Satish Kumar B.R. Witnesses examined on behalf of the Accused: Nil Documents marked on behalf of the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the Accused
Ex.P.2 Bank endorsement
Ex.P.3 Copy of Legal Notice
Ex.P.3(a) RPAD receipt
Ex.P.4 Application filed before the postal department-
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore.