Bangalore District Court
Sri. B.S.Ganesh vs Sri. Ravi.R on 23 November, 2021
1 C.C.No. 8176/18 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 23rd of November, 2021
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.8176/2018
Complainant : Sri. B.S.Ganesh,
S/o. B.S.Shankarappa,
Aged 25 years,
Residing at No.159,
New No.336,
Veerabhadra Nagar,
BSK 3rd Stage,
Bengaluru 560 085.
(By Sri.G.V.Manjunatha., Advs.)
Vs
Accused : Sri. Ravi.R
S/o. G.V. Ramachandra,
Residing at No.74, 3rd Cross,
Yellappa Garden,
Banagiri Nagar, BSK 3rd Stage,
Bengaluru 560 085.
And also at:
C/o. D E O Main Office,
A S C (South, ) E D P center,
Victoria Road,'
Bengaluru 560 042.
(By Sri. Bharath Kumar.V Adv.)
2 C.C.No. 8176/18 J
Case instituted : 9.3.2018
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Acquitted
Date of order : 23.11.2021
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, he knows accused since several years, in the month of June 2017 accused has availed a hand loan of Rs.2 Lakhs from him to meet his urgent business expenses and family necessities and at that time accused agreed to repay the same within six months and after expiry of the agreed time, he approached accused for repayment of the above said amount, for which, accused has issued a cheque bearing No.644300 dated:19.1.2018 drawn on Syndicate Bank, Vijaya College Campus Branch, Bengaluru for a sum of Rs.2 Lakhs in his favour. The complainant further contended that, as per the instructions of the accused, he presented the said cheque for 3 C.C.No. 8176/18 J encashment through his banker, the same came to be returned dishonoured as "Dormant Account"
vide bank endorsement dated:23.1.2018 thereafter he got issued a legal notice on 12.2.2018 to the both addresses of the accused mentioned in the cause title through RPAD calling upon him to pay the cheque amount to him within 15 days from the date of the receipt of the said legal notice and despite the service of the same instead of complying the same, accused has issued evasive reply dated:27.2.21018. Hence he has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavitinlieu of his sworn statement, in which, he has reiterated the averments made in the complaint. In support of his evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.6. i.e, Original Cheque dated: 19.1.2018 is as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of Legal Notice as per Ex.P.3, postal receipts as per Ex.P.4 and P.5 postal 4 C.C.No. 8176/18 J acknowledgement as per Ex.P.6.
4. Primafacie case has been made out against the accused and summons was issued against the accused in turn has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
5 In view of the principles of law laid down and as per the directions of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the accused, as he intended to set out his defence, and the case was posted for cross examination of complainant and after his crossexamination, the complainant has closed his side.
6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence subsequently the Accused has examined as DW.1 and he has produced 18 5 C.C.No. 8176/18 J documents ie, Bank challans as per Ex.D.1 to D.9 respectively, Bank pass book of SBI as per Ex.D.10, copy of the Notice dt: 3.3.2018 issued to Shankarappa by accused as per Ex.D.11, postal receipts and postal acknowledgement as per Ex.D.12 and D.13 respectively, copy of the complaint dt:
21.6.2018 lodged by the accused as per Ex.D.14, copy of the Statement given by shankarappa as per Ex.D.15, copy of the Reply notice as per Ex.D.16, postal receipt and postal acknowledgement as per Ex.D.17 and D.18 respectively. The accused has also examined father of the complainant by name Sri. Shankarappa Late Shivanna as DW.2.
7. Heard by learned counsel for the complainant and the Accused and perused the written argument submitted by the learned counsel for the complainant and accused and the decisions relied upon by the learned counsel for the complainant ie.,
1) AIR 2019 SC 2446 - Birsingh Vs. Mukesh Kumar 2) AIR 2018 SC 3601 - T.P.Murugan (Dead) Thrs Lrs., V.s Bojan Posa Nandhi Rep. Thr.POLA Holder T.P.Murugan Vs. Bojan; 3) AIR 2018 SC 3173 - Kishan Rao Vs. Shankargouda;
6 C.C.No. 8176/18 J4) AIR 2009 SC 568 - P.VenGopal Vs. Madan P.Sarathi and perused the materials on record.
8. On the basis of complaint, evidence of complainant and documents the following points that are arise for consideration are:
1. Whether the complainant proves that the accused has issued cheque bearing No.644300 dated:19.1.2018 for a sum of Rs.2 Lakhs drawn on Syndicate Bank, Vijaya College Campus Branch, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 23.1.2018 and the complainant issued legal notice to the accused on 12.2.2018 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Negative Point No.2: As per final order for the following:7 C.C.No. 8176/18 J
.
REASONS
10. Point No.1 : Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act presupposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within 8 C.C.No. 8176/18 J one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
11. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e., U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are 9 C.C.No. 8176/18 J required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
12. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire averments of the complaint and in his evidence testified that, he knows accused since several years, in the month of June 2017 accused has availed a hand loan of Rs.2 Lakhs from him to meet his urgent business expenses and family necessities and at that time accused agreed to repay the same within six months and after expiry of the agreed time, he approached accused for repayment of the above said amount, for which, accused has issued a cheque bearing No.644300 dated:19.1.2018 drawn on Syndicate Bank, Vijaya College Campus Branch, Bengaluru for a sum of Rs.2 Lakhs in his favour. The complainant/PW.1 further testified that, as per the instructions of the accused, he presented the said cheque for encashment through his banker, the same 10 C.C.No. 8176/18 J came to be returned dishonoured as "Dormant Account" vide bank endorsement dated:23.1.2018 thereafter he got issued a legal notice on 12.2.2018 to the both addresses of the accused mentioned in the cause title through RPAD calling upon him to pay the cheque amount to him within 15 days from the date of the receipt of the said legal notice and despite the service of the same instead of complying the same, accused has issued evasive reply dated: 27.2.21018.
13. In support of his evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.6. i.e, Original Cheque dated: 19.1.2018 is as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of Legal Notice as per Ex.P.3, postal receipts as per Ex.P.4 and P.5 postal acknowledgement as per Ex.P.6.
14. In the present case, there is dispute between the complainant and Accused with regard to their acquaintance as contended by the complainant. It is not in dispute by the accused that, the cheque in question belongs to his account and signature found 11 C.C.No. 8176/18 J at Ex.P.1(a) is also that of his signature. The Accused has also not disputed that the cheque in dispute was presented for encashment and dishonoured for the reason of "Dormant Account " vide bank endorsement dated:23.1.2018 therefore as a matter on record and has been proved by producing bank memo i.e., Ex.P.2 issued by the concerned bank dated: 23.1.2018. Therefore the complainant has proved that, the cheque in question i.e Ex.P.1 was presented within its validity period and dishonoured as per bank endorsement issued by the banker of the Accused and the cheque in question belonging to the Accused account and signature of the Accused is at Ex.P.1(a). In relation to the service of notice, the complainant in order to prove service of notice upon the Accused, has produced the documents i.e copy of the legal notice dated 12.2.2018, postal receipts and postal acknowledgement which are at Ex.P.3 to P.6. The perusal of the Ex.P.3 to P.6 it appears that, the complainant has issued legal notice by his advocate to the accused through RPAD and the said notice was served upon the accused as per the postal acknowledgement i.e., Ex.P.6. The accused has issued reply to the legal notice issued by the complainant, but the complainant has not produced 12 C.C.No. 8176/18 J the reply notice issued by the accused, on the contrary the accused has produced reply notice issued by him which is at per Ex.D.16, hence the legal notice issued by the complainant was duly served on the accused. Hence the complainant has complied all the mandatory requirements as required under Sec.138 (a) to (c) of N.I. Act.
15. It is settled law that, once the issuance of cheque in favour of the holder in due course is admitted by the drawer, presumption can be drawn about the existence of legally recoverable debt under Sec.139 of NI Act, terms in favour of holder in due course. "The Hon'ble Apex Court of India in Rangappa Vs. Mohan's Case reported in 2010(11) SCC 441 held that, issuance of cheque would create a presumption with respect to legally enforceable debt in faovur of the payee of the cheque, however the said presumption is rebuttable." In the present case though the accused has admitted the issuance of cheque and also signature thereon belongs to him but has denied the transaction in question and issuance of the cheque to the complainant towards discharge of the debt in question, hence though initial presumption drawn 13 C.C.No. 8176/18 J in favour of the complainant, but the said presumption is rebuttal, in such circumstances it has be examined as to whether the accused has rebutted the presumption successfully or not. It is also settled law that, the accused in a proceedings U/s.138 of N.I.Act has two options i.e. the accused can either show that, consideration and debt did not exists or that, under particular circumstances of the case the non existence of consideration and debt is so probable that, a prudent man ought to suppose that, no consideration and debt existed and in order to rebut the statutory presumption accused is not expected to prove his defence beyond reasonable doubt as expected of the complainant in Criminal trial and the accused may adduce direct evidence to prove that the cheque in question was not supported by consideration and there was no debt or liability to be discharged by him and the court need not insist in every case that, the accused should disprove the non existence of consideration that, by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. In this regard it is relevant here to refer the decision of Hon'ble Apex court of India reported in LAWS (SC) 20198 82 in the case of Shri.Dhaneshwari Traders Vs. 14 C.C.No. 8176/18 J Sanjay Jain and in another case reported in ( 2020) 12 SCC 500 wherein the Hon'ble Apex court held that " It is well settled that, rebuttal can be made with reference to the evidence of the prosecution as well as of defence" and in another decision reported in (2010) 11 SCC 441 in thecase of Rangappa Vs. Sri. Mohan wherein the Hon'ble Apex Court held that "Ordinarily in cheque bounce cases, what the courts have consdiered is whether the ingredients of the offence enumerated in Sec.138 of Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Sec.139 of the Act, and also held that "it is settled position that, when an accused has to rebut the presumption U/s.139, the standard of proof for doing so is that of preponderance of probabilities". Hence, in view of the principles of law laid down by the Hon'ble Apex Court of India in the above referred decision in order to rebut the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt and the accused may adduce direct evidence to prove his 15 C.C.No. 8176/18 J defence or the rebuttal can be make with reference to the evidence of the prosecution and standard of proof for rebuttal of the presumption is that of preponderance of probabilities i.e. something which is probable has to be brought on record by the accused, by applying these principles of law to the present case, now the oral and documentary evidence adduced by the complainant and accused has to be examined.
16. It is the specific defence of the Accused that, complainant is a stranger to him and he has not borrowed any loan amount from the complainant and issued the cheque in question toward discharge of the loan amount in question in favour of the complainant. It is also the defence of the accused that, the cheque in question along with On demand promissory note was issued to father of the complainant by name Sri.B.S.Shankarappa as blank in the year 2015 while borrowing an amount of Rs.50,000/ from him as insisted by the father of the complainant to give signed blank cheque and signed blank On demand promissory note for security purpose of the said loan. It is also the defence of the accused that, he had repaid the entire loan amount 16 C.C.No. 8176/18 J along with interest to the said Sri.Shankarappa and requested him to return the blank signed cheque and promissory note and even after repeated request he has not return the same by informing one or other reason for that, he also kept quite believing that, the said person was good person but the complainant managed to get the cheque in question from his father and got issued false notice and filed this false complaint against him. It is also the defence of the accused that, he has questioned the financial capacity of the complainant to lend the loan amount in question.
17. It is relevant here to mention that, the complainant in order to discharge his initial burden has filed his affidavit in lieu of oral evidence and wherein he has reiterated the entire averments of the complaint. In order to substantiate the claim of the complainant , except the cheque in question ie Ex.P.1 has not produced any other documentary proof to show that, he has lent the loan amount in question. It is relevant here to mention that, the complainant during his cross examination though he has not admitted the defence of the accused but he has not denied the specific suggestions made to him 17 C.C.No. 8176/18 J by the accused and instead of denying the suggestions has stated as he does not know, hence it goes to show that, the complainant has not denied the defence of the accused. In this regard, it is relevant here to reproduce the answers given by the complainant in his cross examination which reads under:
" It is true to suggest that, my father does money lending business. I do not know that, accused had borrowed Rs.50,000/ in my father in the year 2015 with monthly interest at 10%. I do not know that, while advancing the said loan my father had collected a signed blank cheque and signed blank pronote from the accused for security purpose. I do not know that, the accused has repaid Rs.70,000/ to my father by having deposited the said amount to the account of my father on various dates. I do not know that, accused has repaid Rs.30,000/ to my father to his two cheques. I do not know that, the accused has repaid said loan of Rs.50,000/ along with Rs.50,000/ as interest to my father. I do not know that, my father had 18 C.C.No. 8176/18 J his account in the SBM of Kathriguppe Branch. I do not know that, in view of the merger of SB M with SBI, the account of my father also came to be merger to the SBI. I do not know that, after the clearance of his loan through the accused sought for the return of his security documents from my father, he was told by my father that, the same were misplaced."
It is also admitted by the complainant /PW.1 as under:
" It is true to suggest that, the accused has got issued the reply notice to my counsel. It is true to suggest that, the said reply notice has been received by my counsel. I do not know that, intentionally the reply notice has not been produced in this case. I do not know that, the accused has also got issued legal notice to my father asking him to return his security documents to him. I do not know that since the contents of the said legal notice is true, my father has not replied to the same, though he has received the said legal notice".19 C.C.No. 8176/18 J
Hence, the above admissions of the complainant makes it clear that, though there were specific suggestions made to him by the accused that, the accused has borrowed a loan of Rs.50,000/ in the year 2015 from his father on monthly interest at the rate of 10% and at that time his father had collected blank signed cheque and blanks pronote from the accused for security purpose and in turn the accused has repaid the said loan amount with interest ie., Rs.70,000/ to the account of his father on various dates and after repayment of the loan amount he has sought for return of the security documents from his father but his father was informed him that, the same were misplaced, the complainant has not denied the said suggestions instead of it, he has stated that, he does not know to the suggestions made to him, therefore in view of non denial of the specific suggestions made by the accused may leads to draw an adverse inference against the complainant he has admitted the suggestions made to him by the accused, therefore in view of non specific denial by the complainant it can be held that, the complainant has admitted the defence of the accused as stated in the above.
20 C.C.No. 8176/18 J18. In addition to the above, the complainant himself admitted in his crossexamination that, he is working in a company namely 24/7 and as on the date of lending of the loan amount he was getting salary of Rs.13,000/ and also admitted that, he may produce the documents to that effect. It is also admitted that, the loan amount which was lend to the accused was withdrawn from his salary account and he was also having income from Dog breeding business and also admitted that, he may produce the documents ie bank statement to that effect. It is also admitted that, he has not produced any documents to show that, he was having sufficient amount as on the date of lending of the loan amount and has not collected any documents from the accused at the time of lending of the loan amount. The complainant has also admitted that, he does not know the exact date of lending of the loan amount to the accused and he do not know that, there was no financial necessity to the accused in June 2017 and has not enquired about the business of the accused. The complainant has also admitted that, he has not disclosed about the transaction in question in his I.T. returns and has no impediment to disclose the same in the I.T. Return.
21 C.C.No. 8176/18 J19. Hence, the above admissions of the complainant makes it clear that, the complainant has categorically admitted that, though he was working in a company ie 24/7 and was getting salary of Rs.13,000/ p.m. and the loan amount was given from withdrawing the salary amount but has not produced any documents though they are available and admitted that, he may produce the documents, in such circumstances the conduct of the complainant in non production of the document for the reason known to him may leads to draw a adverse inference that, if really the complainant had paid the loan amount to the accused by withdrawing the amount from his bank and also from the income of the dog breeding business, definitely he would have produce the documents , the non production of the document creates a serious doubt with regard to financial capacity of the complainant and also lending of the loan amount in question to the accused. The complainant himself admitted that, he has not produced any documents to show that, as on the date of lending of the loan amount he was having sufficient source of income and has not collected any documents at the time of lending of the loan amount, the said conduct of the complainant ie., in non 22 C.C.No. 8176/18 J taking the documents though he has lend the huge amount as the loan appears to be doubtful in respect of the lending of the loan amount to the accused, since no prudent man can lend a huge amount as a loan without collecting the documents towards lending of the loan amount, therefore on this count also a serious doubt creates with regard to lending of the loan amount. It is also admitted by the complainant that, he has not enquired about the business of the accused at the time of lending of the loan amount and also admitted that, he do not know for what purpose the accused has utilized the loan amount in question and he do not know the financial necessity of the accused in the month of June 2017, therefore the said admission itself goes to show that, the complainant at one breath in his compliant and evidence stated that, the accused has borrowed loan of Rs.2 Lakhs in the month of June 2017 towards his urgent business expenses and family necessities and another breath but in his cross examination he admitted that, he do not know about the financial capacity of the accused in the month of June 2017 and for what purpose the accused utilized the loan amount if really the accused had approached the complainant in the 23 C.C.No. 8176/18 J month of June 2017 as he was in need of money as stated by him definitely the complainant would have stated this fact in his cross examination but the admissions of the complainant itself are inconsistent to his own claim made in the complaint and evidence, on this count also the claim made by the complainant that, the accused was approached in the month of June 2017 and availed loan of Rs.2 Lakhs from him to meet his urgent business expense and family necessities itself appears to be doubtful and creates a serious doubt with regard to approach of the accused and lending of the loan amount in question by the complainant as claimed by him.
20. It is also relevant here to mention that, the complainant in his legal notice, complaint and evidence has not disclosed on which date he has lend the loan amount to the accused, hence it goes to show that, even complainant is not able to say on which date he has lend the loan amount to the accused and the complainant in his cross examination has also admitted that, he does not know the exact date of lending of loan amount to the accused. If really the complainant had given Rs. 2 Lakhs to the accused, definitely he would have 24 C.C.No. 8176/18 J disclosed the date of lending of loan amount in his legal notice, evidence and the complaint, but has not disclosed the same, hence non disclosure of the date of lending of loan amount and inconsistent statements of complainant in respect of mode of lending of the loan amount may leads to create a serious doubt about the lending of loan amount in question to the accused.
21. It is also relevant here to mention that, the complainant in his notice, complaint, evidence has not mentioned the specific date with regard to approach of the Accused seeking loan amount to him and it is also admitted fact that, the complainant has not mentioned or stated, the date and in which place the Accused has issued the subject matter of the cheque in his favour, hence in view of the above said facts a serious doubt creates with regard to issuance of cheque in question by the Accused infavour of the complainant towards discharge of the loan transaction in question. If really the Accused has borrowed the loan amount in question and issued the cheque in question towards discharge of the said loan amount as claimed by the complainant, definitely the complainant would have mentioned the 25 C.C.No. 8176/18 J date on which the Accused approached him and the date and place in which the Accused has issued the cheque in question in his favour, failure to mention the above said important facts may leads to draw an adverse inference against the complainant that, the claim made by the complainant in this case appears to be doubtful and it corroborates the defence of the Accused. It is also relevant here to mention that, the complainant has stated that, the accused has agreed to repay the loan amount within six months and after expiry of the agreed time he approached accused for repayment of the said loan amount then the accused has got issued a cheque ie Ex.P.1 in question for sum of Rs.2 Lakhs dt: 19.1.2018 in his favour but whereas in the cross examination he has categorically admitted that, the accused has given the cheque in question in his house in the 3 rd week of December 2017 but he do not know the exact date of issue of cheque in question. Hence, it goes to show that, according to the complainant the cheque in question was handed over to him in the 3 rd week of December 2017 but whereas the cheque bears the date as 19.1.2018 and it is not the case of the complainant that, the accused has issued post dated cheque in the 3rd week of December 2017 by 26 C.C.No. 8176/18 J mentioning the date as 19.1.2018, therefore if the claim of the complainant is taken into consideration with regard to issuance of the cheque itself goes to show that, prior to the date as alleged in the legal notice, complaint and evidence the cheque was in the hands of complainant and it is not the definite case of the complainant that, the accused has issued cheque in question as post dated cheque, in such circumstances the complainant has miserably failed to prove that, after expiry of six months ie., agreed time he approached the accused and in turn the accused has issued the cheque in question , if really the cheque in question was issued by the accused in the 3rd week of December 2017 definitely the date on the cheque would have been mentioned on which date it was given to the complainant but it was bears the date as 19.1.2018, in such circumstances it can be held that, a serious doubt arises with regard to issuance of the cheque in question by the accused infavour of the complainant as claimed by him. In this regard, it is relevant here to refer the decisions of Hon'ble Apex Court of India reported in AIR 2019 SC 1983 in the case of Basalingappa Vs. Mudibasappa., wherein it is held that, A) "NEGOTIABLE INSTRUMENTS ACT, (26 of 1881) 27 C.C.No. 8176/18 J section 138, S 139, S.118(a) Dishonour of cheque Non mentioning of date of issue of cheque by complainant in complaint as well as in his evidence - complainant not satisfactorily explaining contradiction in complaint vis a vis his examination in chief and cross examination his failure to prove financial capacity though he is retired employee to advance substantial amount to different persons including accused findings of trial court that, complainant cannot prove his financial capacity cannot be termed as perverse without discarding evidence led by defence - accused entitled to acquittal. In another decision reported in AIR 2019 SC 942 in the case of A.N.S.S. Rajashekar Vs. Augustus Jeba Ananth" wherein it is held that "
A) "NEGOTIABLE INSTRUMENTS ACT, (26 of 1881) section 138, S 139 Dishonour of cheque presumption as to legally enforceable debt failure of complainant to establish source of funds alleged to be utilised for disbursal of loan amount to accused presence of doubt on transaction as complainant not disclosing facts 28 C.C.No. 8176/18 J as to cheques and steps taken by him for recovery of same - material on record rendered probablitiy as to absence of legally enforceable debt High Court convicting accused on the ground that, he remained absent though notice of appeal was served not proper". In another decision of Hon'ble High Court of Karnataka reported in ILR 2014 KAR 6572 in a case of Sri.H.Manjunath vs. Sri.A.M. Basavaraju, wherein the Hon'ble High Court of Karnataka held that "NEGOTIABLE INSTRUMENTS ACT, 1881 section 138 offence under - Judgment of Acquittal -
Appealed against -Absence of statement in the complaint as to when the amount was actually given to the accused Absence of material particulars of the transaction in the complaint except signature all other entries are in different handwriting different ink and undoubtedly made at different time Mentioning of merely the date of issue of cheque without any material particulars -HELD, Judgment of acquittal is justified As seen from the complaint there is no statement as to when the amount was actually 29 C.C.No. 8176/18 J given to the Accused. The complainant has merely mentioned the date of issuance of cheque without any material particulars of the transaction. The cheque in question undoubtedly is signed by the accused. The dispute raised is entries made in the cheque are not in his handwriting. - It is not the case of the complainant that cheque was issued in blank and filled up later with consent of the accused FURTHER HELD, perusal of cheque at Ex.P.1 makes it manifest that except signature all other entries are in different hand writing, different ink and undoubtedly made at different time. In this view it is difficult to accept the version of the complainant. CRIMINAL PROCEDURE CODE, 1973 - SECTION 378(4) - APPEAL AGAINST ACQUITTAL - DISCUSSED. It is a relevant here to the decision of Hon'ble Apex Court of India reported in (2015) 1 SCC 99 in the case of K.Subramani Vs. K. Damodar Naidu., wherein the Hon'ble Apex court held that " Debt, Financial and Monetary Laws Negotiable Instruments Act, 1881 Ss, 138, 118 and 139 -
30 C.C.No. 8176/18 JDishonour of cheque - Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant accused - Presumption infavour of holder of cheque, hence, held, Stood rebutted Acquittal restored". In another decision reported in (2014) 2 SCC 236 in the case of John K. Abhraham Vs. Simon C.Abraham and another., wherein the Hon'ble Apex court held that " In the present case the complainant not aware of the date when substantiate amount of Rs.1,50,000/= was advanced by him to the appellant/accused - respondent/ complainant failed to produce relevant documents in support of alleged source for advancing money to the Accused - complainant also not aware as to when and where the transaction took place for which the cheque in question was issued to him by Accused - complainant also not sure as to who wrote the cheque and making contradictory statements in this regard in view of said serious defects/ lacuna in evidence of complainant, judgment of High Court reversing 31 C.C.No. 8176/18 J acquittal of Accused by trial court, held was perverse and could not be sustained - acquittal restored". Hence above the said principles of law laid down by Hon'ble Apex Court to the present facts of the case are aptly applicable to this case as in the present case also the complainant has not stated the date on which the Accused was approached him seeking loan of Rs.2 Lakhs and has not stated the place of issuance of cheque in question to him and has also not produced the document to show that, he has got sufficient source of funds to lend the loan amount to the Accused and the complainant has failed to prove that, he has lent loan of Rs.2 Lakhs to the accused as stated by him in his complaint and evidence, in such circumstances the claim set up by the complainant in the present complaint appears to be doubtful with regard to lending of loan amount in question, in such circumstances in view of the above principles of law laid down by Hon'ble High Court of Karnataka and Apex Court the complainant has miserably failed to prove that he has lent loan amount of Rs.2 Lakhs to the Accused and in turn the Accused has issued the cheque in question towards the discharge of the said loan amount and the Accused has rebutted the presumption available 32 C.C.No. 8176/18 J infavour of the complainant.
22. It is important to note that, though the complainant has lend alleged loan amount of Rs.2 Lakhs ie., huge amount but in the complaint and evidence has not stated about the charging of interest in respect of the loan amount in question and also admitted that, without collecting any documents from the accused and without ascertaining the re payment capacity of the accused he has lend the loan amount to the accused. Hence, in view of the same makes it clear that, though the complainant claims that, he has lent huge amount of Rs.2 Lakhs to the accused but without collecting the documents from the accused and without knowing the repaying capacity of the accused has lend alleged loan amount of Rs.2 Lakhs to the accused, therefore the conduct of the complainant in lending huge amount that, too without collecting any documents for having lent the huge amount and without verification of the repaying capacity of the accused may leads to draw an adverse inference against the accused that no prudent man can lent huge amount by way of loan that too without collecting any 33 C.C.No. 8176/18 J documents and knowing repayment capacity appears to be doubtful transaction. Even the complainant has not charged any interest on huge amount of Rs.2 Lakhs alleged to have been lent to the accused for a longer period, on this count also a serious doubt arises about the alleged lending of loan amount to the accused as no prudent man would lend substantial amount of Rs.2 Lakhs without charging the interest. In this regard, it is relevant here to refer the decision of Hon'ble Apex Court of India, reported In 2007 AIR SCW 6736 in the case of John K. John Vs. Tom Varghese and Anr.
Wherein the Hon'ble Apex Court held that "Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was opened to the High Court to draw its own conclusion therein. Not only no document had been executed even no interest had been charged". Therefore the Hon'ble Apex Court in the above referred decision has considered the collection of document at the time of lending of huge sum of money and also non charging of interest on the huge loan amount were relevant 34 C.C.No. 8176/18 J circumstances to find out as to whether the existence of debt has been proved or not. In the present case as already stated in the above that, admittedly no documents have been executed and even no interest has been charged and no explanations were forthcoming from the complainant as to why the documents have not been collected and interest was not charged on the alleged lending of huge loan amount of Rs.2 Lakhs, therefore for the above said reasons also it can be held that, the complainant has not established nor proved the existence of legally enforceable debt as against the accused.
23. It is true that, the complainant has proved that, the cheque in question I.e. Ex.P.1 belongs to the account of the accused and the signature found at Ex.P.1(a) is that of the accused. The complainant has also proved that the cheque in dispute was presented within its validity period and the said cheque returned dishonored for the reasons of Dormant account as per Ex.P.2 and it is also proved by the complainant that, within 30 days from the date of receipt of bank memo has issued legal notice to the accused and the said notice was also served on the accused. Hence, the complainant has complied the 35 C.C.No. 8176/18 J mandatory requirements as required U/s.138 of Negotiable Instruments Act and initial presumption can be drawn U/s.139 of N.I. Act in favour of the complainant, but as it is already held in the above that, in view of principles of law laid down by the Hon'ble Apex Court of India in Rangappa Vs.Mohan case reported in 2010(11) SCC 441, the Hon'ble Apex court held that the said presumption is rebuttable and the said presumptions can be rebutted by the accused either on the basis of materials produced by the complainant himself or by adducing his separate oral and documentary evidence. As it is already held in the above that, the complainant has miserably failed to prove that, he has advanced loan of Rs.2 Lakhs to the accused and in turn the accused has issued the cheque in question in his favour as contended by him in his complaint and evidence. Now it is to be seen that, the accused has rebutted the presumptions available in favour of the complainant or not.
24. The Accused in order to rebut the presumption available to the complainant, himself examined as DW.1 and the accused in his evidence stated that, the complainant is stranger to him and 36 C.C.No. 8176/18 J he do not have any acquittance with him since he is very younger to him and aged about 25 years and he is 55 years old as such question of making financial transaction with the complainant does not arise at all. It is an admitted fact by the complainant that, he is aged about 25 years as on the date of filing of the complaint and the accused is aged about 55 years but the complainant in his complaint and evidence has stated that, he know the accused since several years and in his cross examination he admits that, accused and his father are known to each other and also admitted that, he has not enquired about the business of the accused as on the date of lending of the loan amount and he does not know for which purpose the loan amount in question was utilized by the accused, hence by considering the admitted facts by the complainant and the difference in age between the complainant and accused itself goes to show that, there may not be acquittance between the complainant and the accused and the admission of the complainant corroborates the defence that, the accused is friend of the father of the complainant and he had a loan transaction with the father of the complainant ie., borrowed the amount from the father of the complainant this fact has not been 37 C.C.No. 8176/18 J denied by the complainant during his cross examination, in view of the admissions of the complainant may leads to draw an inference that, the complainant is very younger to the accused and there may not have any acquittance between the complainant and accused and there are meager possibility of approaching the accused to the complainant for making financial assistance as claimed by the complainant.
25. The accused/DW.1 in his evidence has also stated that, he know the father of the complainant ie Mr.B.S. Shankarappa and borrowed a sum of Rs.50,000/ from him for interest at the rate of 10% p.m. at that time the father of the complainant insisted him to give blank signed cheque, On demand promiscuity note for security purpose of the said loan, accordingly he have issued blank signed cheque and On demand promissory note to him for security purpose and thereafter he had repaid the entire loan amount of Rs.50,000/ along with interest ie., he has paid totally a sum of Rs.1 Lakh to the father of the complainant including the principle and interest amount by way of depositing the said amount to the bank accounts of 38 C.C.No. 8176/18 J the father of the complainant, as stated para No.3 of his affidavit. The accused /DW.1 further stated that, after repayment of the loan amount and interest he reqeusted the said Shankarappa to return his blank signed cheque and On demand promissory note and even on his repeated requests, the said Shankarappa has not returned the same on one or other reason, as such having no alternative he has issued a notice to the said Shankarappa asking him to return his blank signed cheque and on Demand promissory note and it was duly served on him inspite of service of the said notice the said Shankarappa has not choose to reply his notice and thereafter on 21.6.2018 he was also lodge a complaint before the police Commissioner, Bengaluru against the said Shankarappa and same was referred to Channammanakere Achukattu Police Station and the said police have recorded the statement of said Shankarappa. The accused/DW.1 further deposed that, the said Shankarappa to gain illegally colluding with his son ie the Complainant and got filled his blank signed cheque in the name of complainant as per their whims and fancies and presented the same for encashment and got it bounced and filed the present case against him though he has not 39 C.C.No. 8176/18 J borrowed any amount from the complainant and has not issued the cheque in question to the complainant to discharge any loan as alleged by the complainant and except his signature on the cheque all other writings on the cheque are not in his handwriting.
26. In support of oral evidence the accused has produced copies of bank challans which are at Ex.D.1 to D.9, original pass book which is at Ex.D10, copy of notice dt: 3.3.2018 issued to the father of the complainant, postal receipt and postal acknowledgement which are at Ex.D.11 to D.13 respectively, copy of the complaint lodged to the Commissioner of police Bangalore dt: 21.6.2018 which is at Ex.D.14 copy of the statement given by the father of the complainant before the Channammanakere Achukatte PS, Bangalore is at Ex.D.15, copy of the reply dt: 27.2.2018 issued to the complainant, postal receipt and acknowledgment which are at Ex.D.16 to D.18 respectively. The perusal of Ex.D.1 to D.9 and D.10 it appears that, the accused has paid total amount of Rs.1 Lakh on different dates through bank challans to the account of the father of the complainant and the said fact of depositing of Rs.1 Lakh is reflected in the Ex.D.10.
40 C.C.No. 8176/18 JIt is relevant here to mention that, the complainant has not disputed the deposit of Rs.1 Lakh by the accused to the account of his father. It is also relevant here to mention that, the accused has examined the father of the complainant as DW.2 and the father of the complainant has clearly admitted the deposit of Rs.1 Lakh by the accused to his account as per Ex.D.1 to D.9. The father of the complainant ie DW.2 in his evidence has clearly admitted that, accused has deposited an amount of Rs.1 Lakh through Ex.D.1 to D.9 to his account. Hence the accused has proved that, he has paid an amount of Rs.1 Lakh to the father of the complainant as per his defence.
27. It is relevant here to mention that, the complainant during the course of crossexamination of the accused has denied the defence of the accused that, the accused has borrowed a loan of Rs.50,000/ from him father and in turn he has paid an amount of Rs.1 Lakh to his father along with interest amount but the complainant suggested that, the amount which was deposited by the accused to his father's account is pertains to the loan amount borrowed by one Sri.Gangachowdappa from his 41 C.C.No. 8176/18 J father, but the accused has denied the said suggestion, therefore the burden is on the complainant to prove that, whatever the amount deposited by the accused to the account of father of the complainant pertains to the loan amount borrowed by one Sri.Gangachowdappa, in this regard except the suggestion made to the accused nothing has been produced before the court and even though the father of the complainant examined before the court by the accused but the complainant has not made suggestion to his father, therefore the suggestion made by the complainant is not sufficient to hold that, the amount of Rs.1 Lakh deposited by the accused to his father's account as per Ex.D.1 to D.9 is pertains to the loan borrowed by one Gangachowdappa. It is also relevant here to mention that, the father of the complainant ie DW.2 also in his evidence stated that, one Sri. Gangachowdappa is the friend of accused and who borrowed a loan from him and the accused has deposited the amount to his account in respect of the loan borrowed by the said Gangachowdappa but in order to prove the same, even the father of the complainant ie DW.2 has not produced any documents or the complainant examined the said Gangachowdappa, therefore the 42 C.C.No. 8176/18 J claim made by the complainant and his father ie., DW.2 that, the amount of Rs.1 Lakh deposited by the accused as per Ex.D.1 to D.10 to the account of the father of the complainant pertains to the loan amount borrowed by one Gangachowdappa cannot be acceptable one, on the contrary the fact of receipt of Rs.1 Lakh as per Ex.D.1 to D.9 by the father of the complainant remains as it is , therefore in view of non production of the documentary proof or satisfactory evidence either by the complainant or by his father ie., DW.2 to show that, the amount of Rs.1 Lakh deposited b y the accused as per Ex.D.1 to D.9 not pertains to the loan amount borrowed by the accused may leads to draw an adverse inference against the complainant and his father that, they are denying or avoiding to admit the defence of the accused that, the accused after borrowing the loan amount of Rs.50,000/ from the father of the complainant on interest at the rate of 10% p.m. and has repaid the said amount along with interest ie., Rs.1 Lakh to the account of the father of the complainant has produced Ex.D.1 to D.9.
28. It is also the specific defence of the accused that, the father of the complainant at the 43 C.C.No. 8176/18 J time of lending of loan amount of Rs.50,000/ as insisted to give blank signed cheque and also On demand promissory note towards security of the loan amount, accordingly the accused has given blank signed cheque and on Demand promissory note and thereafter though he has repaid an amount of Rs.1 Lakh including the principle amount and interest to the father of the complainant and requested for return of his blank signed cheque and on demand promissory note, despite of his repeated requests the father of the complainant did not return the same and even inspite of issuing notice to the father of the complainant and filing the complaint against the father of the complainant he did not return the same but the father of the complainant has misused his blank signed cheque through his son ie the complainant by filing this complaint. In this regard, the accused has produced the copy of the reply given to the complainant as per Ex.D.16 through RPAD as evidenced by postal receipt and acknowledgement as per Ex.D.17 and D.18. It is relevant here to mention that, though the accused has issued reply to the legal notice caused by the complainant and same has been received by the complainant as per Ex.D.18 ie., postal 44 C.C.No. 8176/18 J acknowledgement and also admitted by the complainant, but the complainant did not produced the copy of the reply given by the accused and it is also admitted fact that, the complainant has not issued any rejoinder to the reply given by the accused, therefore the conduct of the complainant in non production of the reply issued by the accused and non issuance of the rejoinder by denying the defence of the accused makes it clear that, the complainant has suppressed the material facts and has not denied the defence of the accused at the earliest point of time. If really the accused has borrowed the loan amount and issued the cheque in question towards discharge of the loan amount, definitely the complainant would have issued rejoinder to the reply given by the accused or atleast he would have produced the copy of the reply issued by the accused, therefore on this count also a serious doubt arises with regard to lending of loan amount in question to the accused and issuance of the cheque in question by the accused as claimed by the complainant.
29. It is also relevant here to mention that, the father of the complainant though he has denied 45 C.C.No. 8176/18 J service of notice issued by the accused on him in his examination in chief but during the course of his cross examination has clearly admitted that, the accused has issued the legal notice to him for return of his blank signed cheque and On demand promissory note and he has not issued any reply to the said notice, therefore the perusal of Ex.D.11 it goes to show that, after receipt of the legal notice issued by the complainant , the accused has issued reply to the said notice and also issued legal notice to the father of the complainant vide Ex.D.11 and in the said legal notice the accused has categorically mentioned that, he had borrowed a loan of Rs.50,000/ during the year 2015 from the father of the complainant and he has repaid the entire amount along with interest and he has requested for return of his documents which were collected as security towards the said loan amount inspite of that, has not return the same such being the fact he has received a legal notice issued by one Sri. B.S.Ganesh through his advocate dt: 12.2.2018 stating that, he has borrowed sum of Rs.2 Lakhs from him and issued the cheque in question towards repayment of the said loan and said cheque has been dishonoured and also denied the alleged loan transaction stated 46 C.C.No. 8176/18 J in the notice by contending that, the cheque which was given as blank signed cheque as security and the same has been misused by him ie., said Ganesh and also demanded for return of the said blank signed cheque. The said notice ie Ex.D.11 was received but the father of the complainant has not issued any reply to the said notice and same has been admitted by him in his crossexamination. Hence, in view of the issuance of the reply to the complainant and also issuance of legal notice to the father of the complainant as per Ex.D.11 and D.16 by the accused and the same have been received by the complainant and father of the complainant, despite of that, either the complainant or the father of the complainant have not issued any rejoinder or reply to the notice issued by the accused, therefore their conduct goes to show that, the father of the complainant has admitted the contents of the legal notice issued by the accused as per Ex.D.11 are true and correct, if really the father of the complainant did not collected the cheque in question as blank signed cheque from the accused at the time of lending of the loan amount of Rs.50,000/ as claimed by the accused certainly he would have issued reply to the said notice but he has not issued any reply, 47 C.C.No. 8176/18 J therefore the conduct of the father of the complainant may leads to draw an adverse inference that, he has not issued reply to the notice issued by the accused for the reason that, he had collected the cheque from the accused as blank signed cheque towards security of the loan amount not for any other reason. It is also seen from Ex.D.14 and D.15 that, after issuanc eof the legal notice the acused has lodge a complaint against the father of the complainant before the Commissioner of Police, Bangalore for misuse of his blank signed cheque colluding with his son without returning the same to him though he has repaid the entire loan amount to the father of the complainant and in turn the said complaint was refereed to the Jurisdictional Police ie., Channammanakere Achukattu PS, Banglaore and the said police have called the father of the complainant and recorded the statement. Inspite of lodging the complaint by the accused either the complainant or his father ie DW.2 did not made any efforts to give reply to the notice caused by the accused, therefore the conduct of the complainant and his father with regard to non issuing of the rejoinder or reply to the accused makes it clear that, they have admitted that, the accused had borrowed a loan of Rs.50,000/ from the father 48 C.C.No. 8176/18 J of the complainant on interest basis and at that time the father of the complainant had collected signed blank cheque from the accused towards security of the loan amount and thereafter the accused has repaid the loan amount along with interest ie Rs.1 Lakh to the account of the father of the complainant as per Ex.D.1 to D.9. It is also relevant here to mention that, the complainant during the course of his cross examination has specifically admitted that, his father does money lending business and he do not know that the accused has borrowed Rs.50,000/ from his father in the yar 2015 on monthly interest at 10% and while advancing the said loan his father had collected a signed blank cheque and pronote from the accused for security purpose and the accused has paid said loan of Rs.50,000/ along with Rs.50,000/ as interest to the account of his father , therefore in view of the categorical admissions of the complainant it can be held that, the accused has proved his defence that, the father of the complainant had collected his blank signed cheque at the time of lending of the loan amount of Rs.50,000/ to him. Apart from that if really the amount which was deposited by the accused to the account of the father of the complainant pertains to the loan 49 C.C.No. 8176/18 J amount of one Sri.Gangachowdappa not in respect of the loan amount borrowed by the accused and the accused has not issued the cheque in question towards security of the loan amount borrowed by the accused as contended by the complainant and his father, definitely either the complainant or his father would have disclosed this fact by issuing rejoinder or reply to the notice issued by the accused but they did not deny the defence of the accused even after receipt of the reply and legal notice and after filing of the complaint by the accused against the father of the complainant, therefore the complainant and his father have impliedly admitted that, the accused has borrowed the loan amount of Rs.50,000/ on interest basis from the father of the complainant and inturn the father of the complainant had collected blank signed cheque from the accused. It is true that, the accused during the course of cross examination has admitted that, the legal notice issued by him and police complaint lodged by him only after receipt of legal notice issued by the complainant in this case and he has not issued legal notice and filed complaint prior to the issuance of legal notice by the complainant but the accused has specifically stated that, the complainant is stranger to him and he do 50 C.C.No. 8176/18 J not know the complainant therefore he did not issued legal notice and lodged the complaint prior to the issuance of legal notice by the complainant, hence it is the defence of the accused that, the age of the complainant is 25 years and he is aged about 55 years old and the complainant is totally stranger to him and he do not have any acquittance with the complainant, therefore considering the age factor of the complainant and accused and for the above said reasons it can be held that, the accused only after receipt of legal notice came to know about the misuse of his cheque in question by the complainant, therefore the accused has issued reply and legal notice and also lodged the complaint and has disclosed his defence at the earliest point of time and it cannot be expect that, earlier to the receipt of notice the accused would have issued legal notice to the father of the complainant or filed complaint against the father of the complainant with regard to misuse of his blank signed cheque, in such circumstances though the accused has admitted that, he had issued legal notice and filed complaint against the father of the complainant after receipt of the legal notice can be acceptable one and nothing has been elicited from the accused during the course 51 C.C.No. 8176/18 J of cross examination of the accused either to discard his evidence or to believe the claim of the complainant. Therefore for the above said reasons the accused has successfully proved that, the cheque in question has been entered into the hands of the father of the complainant as blank signed cheque at the time of borrowing the loan amount of Rs.50,000/ from him during the year 2015 and thereafter the accused has repaid the loan amount along with interest as per Ex.D.1 to D.9 to the account of the father of the complainant and also disclosed the same in reply given to the complainant and also issued legal notice to the father of the complainant and also filed complaint against the father of the complainant in respect of misuse of his blank signed cheque by the complainant and the accused not only proved his defence from eliciting the materials produced by the complainant but also by leading his oral and documentary evidence and has successfully rebutted the presumptions available to the complainant. Therefore for the above said reasons the arguments canvassed by the learned counsel for the complainant at para No. 12 to 16 cannot be acceptable one as the complainant has miserably failed to prove that, he has lent loan 52 C.C.No. 8176/18 J amount in question to the accused and in turn the accused has issued the cheque in question towards repayment of the loan amount, on the contrary the accused has successfully proved his defence by producing cogent and convincible oral and documentary evidence and with due respect to the principles of law laid down by the Hon'ble Apex Court of India in the decisions relied upon by the learned counsel for the complainant are not applicable to the facts of the present complaint as in the present case the accused has successfully rebutted the presumptions raised in favour of the complainant, not only from the materials produced by the complainant but also by producing his oral and documentary evidence.
30. In addition to that, as it is already held and come to the conclusion that, the complainant has miserably failed to prove that he has lend an amount of Rs.2 Lakhs to the Accused and in order to discharge the said loan amount the Accused has issued the cheque in question i.e.,ExP.1 infavour of the complainant. No doubt, some discrepancies have been elicited by the complainant during the cross examination of Accused but there are no proof 53 C.C.No. 8176/18 J regarding the same, however when the complainant himself has failed to establish his case beyond all reasonable doubt, he cannot be permitted to find fault in the defence of the Accused. Hence the standard of proof is expected from side of the complainant is proof beyond all reasonable doubt and in the present case complainant has failed to prove his case beyond all reasonable doubt on the contrary the Accused has successfully rebutted the presumption available infavour of the complainant U/s.118 and 139 of N.I. Act by taking reasonable and probable defence, accordingly for the above said reasons this point is answered in the 'Negative'.
31. Point No.2: In the light of discussions made at above point and for the said reasons this point is answered in the negative and it is just and proper to pass the following : ORDER The complaint U/s.200 of Cr.P.C.
filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C.
the accused is acquitted for the offence punishable U/sec.138 of 54 C.C.No. 8176/18 J N.I.Act.
Personal bond executed by the Accused stands cancelled.
Cash surety deposited by the Accused is hereby return to the Accused (If not lapsed) after appeal period is over on his proper identification and acknowledgment.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 23rd day of November, 2021).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri.B.S.Ganesh
2. List of documents exhibited on behalf of the Complainant: Ex.P1 : Original Cheque;
Ex.P1(a) : Signature of the Accused;
Ex.P2 : Bank Memo; Ex.P3 : Office copy of the Legal Notice; Ex.P4 & P5 : Postal receipts; Ex.P6 : Postal acknowledgement;
3. List of witness/s examined on behalf of the Accused: DW.1 : Sri. Ravi 55 C.C.No. 8176/18 J DW.2 : Sri.Shankarappa
4. List of documents exhibited on behalf of the Accused: Ex.D.1 to D.9 : Bank Challans Ex.D.10 : Bank pass book of SBI Ex.D.11 : copy of the Notice dt: 3.3.2018 issued to Shankarappa by accused Ex.D.12 : Postal receipt Ex.D.13 : Postal acknowledgement Ex.D.14 : copy of the complaint dt: 21.6.2018 lodged by the accused Ex.D.15 ; copy of the Statement given by Shankarappa Ex.D.16 : copy of the Reply notice Ex.D.17 : Postal receipt Ex.D.18 : Postal acknowledgement (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
56 C.C.No. 8176/18 J 23.11.2021 Case called out, complainant and counsel for complainant absent, Accused and counsel for accused present. Judgment pronounced in the open court, vide separate order. ORDER The complaint U/s.200 of Cr.P.C. filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs. Acting U/sec.255(1) of Cr.P.C. the accused is acquitted for the offence punishable U/sec.138 of N.I.Act. Personal bond executed by the Accused stands cancelled. Cash surety deposited by the Accused is hereby return to the Accused (If not lapsed) after appeal period is over on his proper identification and acknowledgment. XVI ACMM, B'luru. 57 C.C.No. 8176/18 J