Bangalore District Court
R. Ravishankar vs R. Dinesh Babu on 21 April, 2023
KABC020028312018
IN THE COURT OF ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY.
SCCH-6
PRESENT: SMT. K. LAKSHMI, B.A.L, LL.B.,
IV Addl., Small Cause Judge &
ACMM, Court of Small Causes,
BENGALURU.
C.C. No.4011/2020
Dated this the 21st day of April 2023
COMPLAINANT : R. Ravishankar
S/o Late M. Ramakrishnaiah,
Aged about years,
R/at #26, 12th cross, 19th B main,
1st Block, Rajajinagar,
Bengaluru-560 010.
(By Advocate Shri. Madhukar
Deshpande)
V/s
ACCUSED : R. Dinesh Babu
S/o Late M. Ramakrishnaiah,
Aged about years,
R/at No.494/608,
13th Cross, 2nd Main,
C.C. No. 4011 / 2020
Shasthri Nagar,
Bengaluru-560 028.
(By Advocate Shri. L. P. Suresh)
* * *
-: J U D G M E N T :-
The complainant has filed the present complaint
against the accused under section 200 of Cr.P.C for the
offence punishable under section 138 of Negotiable
Instrument Act.
2. According to the Complainant, the accused is his
full brother. His father by name M. Ramakrishna was
working as Traffic Controller in the KSRTC department.
The said Ramakrishna had purchased the property bearing
No. 608 (old No. 494) , situated at 13 th cross, 2nd main,
Shastrinagar, Thyagaraja Nagar Post, Bangalore in the
name of Smt. Lakshmamma, who is the wife of
Ramakrishna. The said Ramakrishna and Smt.
Lakshmamma has three sons by name Sri. R. Suresh, R.
Ravishankar i.e., who is the complainant in this case,
C.C. No. 4011 / 2020
Dinesh babu, who is the accused in this case, and Smt.
Umadevi. The said property purchased by the said
Ramakrishna from the source of ancestral properties. The
said property is not a self acquired property of Shri.
Ramakrishna and Smt. Lakshmamma. The said
Ramakrishna died intestate leaving behind his wife, three
sons and daughter. The first son of Ramakrishna by name
Suresh died leaving behind his wife and son. The said
property is not absolute property of his mother. His
mother has no absolute right and title over the said
property and she has no right to execute the gift deed in
favour of accused. The accused had obtained the gift deed
from his mother by playing fraud on the other legal heirs
of the deceased Shri. Ramakrishna. The complaint was
lodged against the accused before the Thyagrajnagar police
in Crime No. 131/2011. Thereafter, the accused has
settled the matter and executed the cancellation of gift deed
on 30-12-2011.
C.C. No. 4011 / 2020
3. It is further alleged that the accused has
approached him and stated that he is in serious financial
crisis and requested the complainant and his mother to
transfer the property in his name to enable him to raise
the loan on the said property and clear his dues. It is
further alleged that the accused has also agreed to pay
share to the complainant, his mother and his sister and
also promised to take care of complainant's mother.
Based on the assurance of the accused, the complainant
and his sister executed release deed in favour of accused
and his mother has also executed the gift deed in respect
of above said property. Accordingly, the accused has
agreed to pay Rs. 52,00,000/- in view of the settlement
held on 19-03-2018. Subsequently for repayment of the
said agreed amount the accused issued a cheque bearing
No. 965363 for a sum of Rs. 52,00,000/- on 19-03-2018
drawn on Sree Thyagaraja Co-operative Bank, BSK 2 nd
stage Branch, Bengaluru. It is further alleged that the
accused requested to present the cheque during 3 rd week
of December2019. It is further alleged that the accused
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again requested to present the impugned cheque for
encashment on 2nd week of January 2020. Accordingly,
the cheque was presented for collection in the account of
the complainant and the said cheque was dishonored by
the said Bank on 17-01-2020 on the ground that the
"funds insufficient". Thereafter, the complainant issued a
statutory notice dated 06-02-2020 under section 138 of the
Negotiable Instrument Act, to the accused. The accused
received the notice. The accused did not even sent any
reply to the said statutory notice. Since the said notice was
not complied with, the above said complaint is preferred
by the complainant.
4. In his pre-summoning evidence, complainant was
examined on affidavit. He reiterated the contents of
complainant and got marked eight documents as per Ex.
P-1 to Ex. P-8. Upon appreciation of pre-summoning
evidence, accused was summoned for an offence punishable
under section 138 of the Negotiable Instrument Act. After
receipt of summons, the accused appeared before this
C.C. No. 4011 / 2020
Court through his counsel and he was enlarged on bail.
Plea of accusation has been read over and explained to the
accused and he pleads not guilty and claims to be tried.
The accused was examined u/Sec.313 of Cr.P.C. He
totally denied the entire case of the complainant.
5. The accused moved an application to cross
examine the complainant and said application came to be
allowed. After cross examination of complainant and he
moved an application to produce the additional
documents. The said application came to be allowed.
Thereafter, he produced the certified copy of Judgment,
gift deed dated 11-02-2011 unserved postal cover, postal
acknowledgment and they were marked as Ex. P-5 to Ex.
P-8. The accused has cross examine the complainant. On
the other hand, the accused has not led evidence. He
relied on the evidence of DW-1 and Ex. D-1 to Ex. D-6.
Thereafter, the case is posted for arguments.
6. Heard the arguments.
C.C. No. 4011 / 2020
7. On the basis of the above facts, the following
points arise for my consideration :-
1. Whether the complainant proves beyond all
the reasonable doubt that, the accused has
agreed to pay the amount of Rs. 52,00,000/-
to him in lieu of his share and he is liable to
pay the amount of Rs. 52,00,000/- to him ?
2. Whether the complainant proves beyond
all the reasonable doubt that, the accused has
issued a cheque bearing No. 965363 for a sum
of Rs. 52,00,000/- dated 16-12-2019 drawn
on Sree Thyagaraja Co-operative Bank, BSK
2nd stage Branch, Bengaluru a and when the
complainant presented the cheque for
encashment and the cheque was dishonored
due to "funds insufficient", for which the
complainant has issued a legal notice through
RPAD and the same was served, but the
accused has not repaid the said amount and
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thereby the accused has committed the offence
punishable under section 138 of Negotiable
Instruments Act?
3. Does the impugned cheque represent the
legally enforceable debt at the time of its
drawing ?
4. What order ?
8. My answers to the above points are as follows :
Point No.1 : In the Negative,
Point No.2 : In the Negative,
Point No.3 : In the Negative,
Point No.4 : As per final order,
for the following:
-: R E A S O N S :-
POINTS No. 1 to 3 :-
9. The complainant has filed his affidavit in lieu of
his oral chief examination. In his affidavit he has testified
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regarding the liability of the accused to pay the amount of
Rs. 52,00,000/-, issuance of the cheque, its dishonour,
issuance of legal notice and failure of the accused to pay
the cheque amount. The complainant has produced the
disputed the cheque bearing No. 965363 for a sum of
Rs. 52,00,000/- dated 16-12-2019 drawn on Sree
Thyagaraja Co-operative Bank, BSK 2nd stage Branch,
Bengaluru alleged to be issued by the accused in favour
of the complainant. Ex. P-1 stands in the name of the
complainant. Ex. P-2 is the Banker's endorsement. Ex. P-
3 is the office copies of the legal notice. Ex. P-4 is the
postal receipt. Ex. P- 5 is the certified copy of Judgment.
Ex. P-6 is the certified copy of Gift deed 02-11-2011.
Ex. P-7 is the unserved postal cover and Ex. P-8 is the
postal acknowledgment.
10. On the other hand, the accused has relied on the
evidence of DW-1. DW-1 is the bank official. He deposed
that the accused is holding the account in his name. The
accused had given the requisition to open the account in
C.C. No. 4011 / 2020
the Thyagaraj Co-operative Bank. Accordingly, the
account opened in the name of accused. The specimen
signatures of accused obtained in the bank at the time of
opening the account. He has produced the true copies of
specimen signatures card and requisition given by the
accused. He further deposed that the signature found in
the cheque not tally with the specimen signatures of
accused.
11. Learned counsel for the complainant argued that
the complainant has discharged his initial burden of
proving the case by his oral as well as documentary
evidence. It is also contention of the complainant that the
accused has not initiated the legal action against the
complainant to recover the disputed cheque. The accused
was aware of the fact that the disputed cheque was with
the complainant. He has also contended that the benefit of
presumption under Sections 118 and 139 of Negotiable
Instruments Act is in favour of the complainant, and
therefore the accused has failed to rebut the presumption.
C.C. No. 4011 / 2020
Hence, the accused is liable to be convicted. In support of
his contention, he relied on the following citations :-
1. (2007) 6 SCC 555 : C. C. Alavi Haji Vs.
Palapetty Muhammed and another.
2. (2017) 5 SCC 737 : N.
Parameshwaran Unni Vs. G. Kannan and
another.
3. (2019) 4 SCC 197: Bir Singh Vs.
Mukesh Kumar.
4. (2018) 8 SCC 165: Kishan Rao Vs.
Shankar gouda
5. CRM(M) No. 308/2021 : Mohamman
Shafi Wani Vs. Noor Mohammad Khan.
6. (2019) 9 SCC 606 : M. Abbas Haji Vs. T. N.
Channakeshava.
7. Criminal Appeal No. 1260/2022 : Oriental
Bank of Commerce Vs. Prabodh Kumar Tewari.
8. (1999) 3 SCC 376: L. C. Goyal Vs. Suresh
Joshi (Mrs) and others.
9. 2020 SCC Online KAR 2313 : Indus
International School Vs. M. A. Cariappa.
10. Criminal Revision petition No. 16/2020 :
S. Lokesh Vs. N. Shivashankar.
C.C. No. 4011 / 2020
11. (2012) 13 SCC 375: Laxmi Dyechem Vs.
State of Gujarat and others.
12. (2019)10 SCC 287 : Uttam Ram Vs.
Devinder Singh Hudan and another.
12. To counter theses submissions, the learned
counsel for defence counsel submits that there is no cash
transaction between the accused and the complainant. The
notice was not sered on him. He further argued that he
disputed cheque was not issued to the complainant for the
discharge of debt. The contents of cheque are not in the
handwriting of the accused. The accused is not a signatory
of cheque. The complainant used to visit house of accused
and take the impugned cheque without knowledge and
consent of accused. The complainant misused the cheque
in order to make wrongful gain from the accused. It is also
contention of defence counsel that the legal representatives
of deceased R. Suresh filed a partition suit in respect of
gifted property against the complainant and other legal
representatives of deceased Ramakrishna in O.S. No.
6524/2011. The said suit came to dismissed and the legal
C.C. No. 4011 / 2020
representatives of deceased R. Suresh preferred an appeal
in RFA No. 303/2015 against the said order before the
Hon'ble High Court. If really the accused has agreed to
pay the disputed amount as per the settlement it would
have mentioned in the Gift deed and Release deed i.e., Ex.
D-1 and Ex. D-2. The property belonged to the mother
of accused and she executed the gift deed on account of her
love and affection. Neither the complainant nor the legal
representatives of deceased Ramakrishna have right over
the gifted property. The complainant and his sister have
also executed the release deed and they relinquished their
rights over the gifted property without any consideration.
It is further argued that the complainant has not disclosed
the execution of gift-deed and release-deed in RFA No.
303/2015. If the accused has issued the impugned cheque
as per settlement he would have submitted the same before
the Hon'ble High Court. The conduct of complainant
reveals that the impugned cheque not all issued for the
discharge of liability. The accused is not liable to pay the
cheque amount to the complainant. The complainant has
C.C. No. 4011 / 2020
approached the Court within unclean hand. The It is
further contended that though there is presumption under
Sec.118 and 139 of Negotiable Instruments Act, existence
of legally enforceable debt is not a matter of presumption
u/Sec.139 of Negotiable Instruments Act.
13. In view of rival contentions raised by the
parties, it is necessary to consider the statutory provisions
in this regard and also proposition of law.
Section 118 of Negotiable Instrument Act lays
down that:
"Until the contrary is proved, it shall be
presumed that every Negotiable
instrument was made or drawn for
consideration."
Section 139 of N.I. Act contemplates that :
" Unless the contrary is proved, it shall
presume that holder of the cheque
receive the cheque of the nature
referred to section 138 of the N.I. Act
for the discharge, in whole or in part, of
any debt or other liability."
C.C. No. 4011 / 2020
Section 58 of Negotiable Instrument Act lays
down that:
Instrument obtained by unlawful
means or for unlawful consideration.
When a negotiable instrument has been
lost, or has been obtained from any
maker, acceptor or holder thereof by
means of an offence or fraud, or for an
unlawful consideration, no possessor or
indorsee who claims through the person
who found or so obtained the
instrument is entitled to receive the
amount due thereon from such maker,
acceptor or holder, or from any party
prior to such holder, unless such
possessor or indorsee is, or some person
through whom he claims was, a holder
thereof in due course.ﾵ"
It is also relevant to refer to Section 2(d) of the
Indian Contract Act, 1872, which defines consideration
as under:
"When, at the of the promiser,
promiseesee or any other person has done or
abstained from doing, or does or abstains
from doing or promises to do or abstain from
doing something, such act or abstinence or
C.C. No. 4011 / 2020
promise is called a consideration for the
promise".
Section 10 of the Indian Contract
Act, 1872:- "All agreements are contracts
if they are made by the free consent of parties
competent to contract, for a lawful
consideration and with a lawful object, and
are not hereby expressly declared to be void.
Nothing herein contained shall affect any law
in fore in India, and not hereby expressly
repealed, by which any contract is required
to be made in writing or in the presence of
witnesses, or any law relating to the
registration of documents."
Section 23 of the Indian Contract
Act, 1872:- "The consideration or object of
an agreement is lawful, unless it is forbidden
by law; or is of such nature that, if
permitted it would defeat the provisions of
any law or is fraudulent; of involves or
implies, injury to the person or property of
another; or the Court regards it as
immoral, or opposed to public policy.
In each of these cases, the
consideration or object of an agreement is
said to be unlawful. Every agreement of
which the object or consideration is void."
C.C. No. 4011 / 2020
Section 24 of the Indian Contract
Act, 1872:- "If any part of single
consideration for one or more objects, or
any one or any part of any one of several
consideration of a single object, is unlawful,
the agreement is void."
14. The presumption mandated by Section 139 of
N.I. Act does indeed show the existence of legally
enforceable debt or liability. It is a rebuttal presumption.
It is open to raise the defence, wherein the existence of
legally enforceable debt or liability can be contested. For
rebutting presumption accused is not required to adduce
evidence with unduly high standard of proof, but the
standard of proof for doing so is that preponderance of
probability. If the accused is able to raise probable defence,
which creates doubt about the existence of legally
enforceable debt or liability, then the onus shift back to
the complainant. It is also clear that for rebutting the
presumption accused can rely on the material submitted
by the complainant or his cross examination and he need
not necessarily adduce his defence evidence in all the cases.
C.C. No. 4011 / 2020
15. According to learned counsel for complainant,
the accused has admitted the cheque. The Court is bound
to draw the presumption under Section 139 of the
Negotiable Instrument Act that the cheque was issued for
the discharge of a debt or liability. In the light of above
contention, the question to be decided is whether the
mere drawing of cheque would lead to the presumption
under Section 139 of the Negotiable Instrument Act that
the the cheque in issue is received for the discharge of
debt or liability. In my view, it will not. Admittedly, the
admission of cheque and signature of the accused in the
cheque may prove that the cheque is drawn by him,
provided the Court is satisfied that the cheque was written
and signed by the drawer voluntarily, and such drawing
is not vitiated by any legal grounds. Mere proof of
drawing of cheue will not further prove the relevant
purpose for which the cheque is drawn. This is because of
the simple reason that a cheque can be drawn by a person
for various purpose other than for the discharge of debt or
C.C. No. 4011 / 2020
other liability also. Therefore, the Court cannot, on the
mere proof of execution of cheque, conclude that such
execution was for the discharge of debt or other liability,
unless there is evidence to prove such fact or heres is any
presumption in law to presume such fact. Even on a plain
reading of Section 139 of the Act, it cannot be said that
the mere execution/drawing of the cheque will
automatically lead to the presumption that the cheque is
drawn for a debt or other liability. On the other hand, it
is clear the said section, certain factors refereed to in the
section are to be established. The mere fact that the cheque
produced in court came from possession of complainant
alone will not be sufficient to prove execution. Thus, the
holder's right not be merely to receive or recover the
amount stated or shown in the cheque, but such amount
must be due thereon from the parties thereto. To support
my view, I rely on the decision reported on (1973) 2
SCC 808, Kali Ram Vs State of H. P and also Hiten P.
Dalal -Vs- Brrathindranath Banerjree, (2001) 6 SCC
C.C. No. 4011 / 2020
16, wherein our Hon'ble Apex Court held that as
hereunder :-
" the Court must be satisfied of existence
of facts which have to be present before the
presumption can be drawn".
Further in the case of NEPC Micon
Limited -Vs- Magan Leasing Limited, AIR
1995 SC 1952, wherein our Sureme Court
held that the Courts must interpret Section
138 to the legislative intent to suppress the
mischief and advance the remedy. The
objective of the Act is general and Section
138 specifically is to enhance the acceptability
of cheques and to indicate faith in the efficacy
of negotiable instruments for the transaction
of business. Section 138 criminalises the
dishonor of cheques. This is in addition to
the Civil remedy that is available. This is in
addition to the civil remedy that is available.
Through the criminalistaion of the dishonor
of cheques, the legislature intended to prevent
dishonest on the part of the drawer of the
cheques, the legislature intended to prevent
dishonest on the part of the drawer of a
negotiable Instrument. The interpretation of
Section 138 must not permit dishonest of the
drawee of the cheque as well.
C.C. No. 4011 / 2020
In Sunil Todi -Vs- State of Gujrath,
Criminal Appeal No. 1446 / 2021, the
Hon'ble High Court held that the posted
dated cheque issued after the debt was
incurred would be covered within the
meaning of debt. Section 138 would also
include cases where the debt is incurred after
the cheqeu is drawn but before it is presented
for encashment.
16. In the case of Sripati Singh -Vs- State of
Jarkand, 2021 SCC online SC 1002, our Hon'ble
Supreme Court held that "if a cheque is issued as security
and if debt is not repaid in any other form before the due
date of if there understanding or agreement between the
parties to defer the repayment, cheque would mature for
presentation. Further, the borrower would have the
option of repaying the loan amount or such financial
liability in any other form and in that manner if the
amount of loan due and payable has been discharged
within the agreed period, the cheque issued as security
cannot thereafter be presented." Thus, Section 138 of Act
indicate that an offence under the provisions arises if the
C.C. No. 4011 / 2020
cheque represents a legally enforceable debt on the date of
maturity. Though a post dated cheque might be drawn to
represent a legally enforceable debt at the time of drawing,
for the offence to be attracted, the cheque must represent
a legally enforceable debt at the time of encashment. If
there has been material change in the circumstance such
that the sum in the cheque does not represent a legally
enforceable debt at the time of maturity or encashment,
then the offence under Section 138 is not made out. It
may be borne in mind that cheques are issued in the course
of various types of business transaction in which several
complicated situations may rise. The Court cannot
visualize all such situations, without foreseeing all such
instances. It may not be proper for this Court to lay down
any general proposition that the complainant who is a
'payee' or holder in due course' as the case may be, is the
'holder' of the cheque. By carefully choosing the word
'holder' in section139 of the Act, legislature has achieved
its goal whereby a complainant who seeks the Court to
draw the presumption under Section 139 of the Act, is
C.C. No. 4011 / 2020
bound to establish that he is the 'holder of the cheque, as
defined under Section 8 of the Act. If a contrary
interpretation is given to Section 139 of the Act, the
Complainant will be able to realize any amount stated in
the cheque through criminal case by the mere production
of the cheque and without even proving his entitlement to
receive or recover the amount from the drawer, as referred
to in Section 8. But, such a recover without proof of
entitlement, is put of question by way of a civil litigation.
A criminal prosecution is not intended to provide for easy
short cuts for recovery of money without proving even
right to recover the money refereed to in the cheque from
the drawer. If the complainant proves his entitlement as
refereed to in Section 8, the presumption under Section
139 can certainly be drawn in his favour. In the absence
of establishing the same, no presumption shall be drawn
under Section 139, in favour of the complainant. The
cardinal rule when a cheque is issued for security is that
between the date on which the cheque is drawn to the date
C.C. No. 4011 / 2020
on which the cheque matures, the loan could be repaid
through any other mode.
17. It is also the allegation of the defence that the
accused has not signatory of cheque and he has not given
authority to complainant to complete the blanks in the
cheque. It is also alleged that the complainant has
completed the blanks in the cheque without the consent of
accused. The complainant committed an act of forgery by
filling the blanks in the cheque. As regards the defence
raised by the accused that he did not fill the details in the
cheque himself and had not handed over signed blank
cheque to the complainant and particulars were not filled
by the accused thus this case is not maintainable. At this
juncture it would be worthwhile to discuss the provisions
under Sections 20 and 118 of the Negotiable Instruments
Act, which is as under:
20. Inchoate stamped instruments.
Where one person signs and delivers to another
a paper stamped in accordance with the law
relating to negotiable instruments then in force
in [India], and either wholly blank or having
C.C. No. 4011 / 2020
written thereon an incomplete negotiable
instrument, he thereby gives prima facie
authority to the holder thereof to make or
complete, as then case may be, upon it a
negotiable instrument, instrument, for any
amount specified therein and not exceeding the
amount covered by the stamp. The person so
signing shall be liable upon such instrument, in
the capacity in which he signed the same, to any
holder in due course for such amount,
provided that no person other than a holder in
due course shall recover from the person
delivering the instrument anything in excess of
the amount intended by him to be paid
thereunder.
118. Presumptions as to negotiable instruments of
consideration Until the contrary is proved, the following
presumptions shall be made:
(a) of consideration that every negotiable
instrument was made or drawn for
consideration, and that every such instrument,
when it has been accepted, indorsed, negotiated
or transferred, was accepted, indorsed,
negotiated or transferred for consideration;
C.C. No. 4011 / 2020
(b) as to date that every negotiable
instrument bearing a date was made or drawn
on such date;
(c) as to time of acceptance that every
accepted bill of exchange was accepted within a
reasonable time after its date its date and before
its maturity;
(d) as to time of transfer. that every
transfer of a negotiable instrument was made
before its maturity;
(e) as to order of endorsements that the
endorsements appearing upon a negotiable
instrument were made in the order in which
they appear thereon;
(f) as to stamps that a lost promissory
note, bill of exchange or cheque was duly
stamped;
(g) that holder is a holder in due course
that the holder of a negotiable instrument is
a holder in due course; provided that, where
the instrument has been contained from its
lawful owner, or form any person in lawful
custody thereof, by means of an offence or
fraud, or for unlawful consideration, the
burden of proving that the holder is a holder
in due course lies upon him.
C.C. No. 4011 / 2020
The bare perusal of section 20 of Negotiable
Instrument Act reveals that the holder of the cheque has
implied authority to complete the blanks in the cheque.
The filling of the details in the blank cheque perse does
not attract the provisions of Section 87 of Negotiable
Instrument Act. In other words, the completing of blank
cheque by the holder cannot be said to be material
alteration in the cheque and also forgery. It is no law that
for a cheque must be said to be valid the contents must be
filled by the drawer. Moreover, nothing contrary has been
proved to show that the complainant does not have
implied authority to fill the blank cheque. Thus, the
defence of the accused that he has not filled the contents in
the impugned cheque is not tenable in the eye of law.
18. In the case of Mojj Engineering Systems
Limited & Ors. Vs. A.B. Sugars Ltd.; 154 (2008) Delhi
Law Times 579, the Hon'ble Delhi High Court had
observed as under :-
" Even otherwise, prima facie, it was the
petitioners who had handed over the undated
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cheque for a certain amount to the respondent
in terms of a contract between the parties. Since
an undated cheque cannot be encashed, it can
only mean that the petitioners had authorized
the complainant to enter an appropriate date on
it.
Further in the case of Young Vs. Grote
(1827) 4 Bing. 253 it was held that when a
blank cheque is signed and handed over, it
means the person signing it has given an
implied authority to any subsequent holder to
fill it up.
Similarly, in Scholfield Vs. Lord Londesborough
(18951899) All ER Rep 282 it was held that whoever
signs a cheque or accepts a bill in blank, must necessarily
intend that either the person to whom he gives it, or some
future holder, shall fill up the blank which he has left.
This common law doctrine was also affirmed by Hon'ble
Justice Macnaghten in Griffiths Vs. Dalton [1940] 2 KB
264 where it was held that the drawer of an undated
cheque gives a prima facie authority to fill in the date. This
aspect has also been incorporated in Section 20 of the
Negotiable Instruments Act, which deals with Inchoate
C.C. No. 4011 / 2020
Stamped Instruments. The Hon'ble Supreme Court in T.
Nagappa Vs. Y. R. Murlidhar, (2008) 5 SCC 633 while
discussing the scope of Section 20 held that by reason of
this provision, a right has been created in the holder of the
cheque. Prima-facie, the holder thereof is authorized to
complete the incomplete negotiable instrument.
19. A collective reading of the above provisions
shows that even under the scheme of the Negotiable
Instrument Act, it is possible for the drawer of a cheque
to give a blank cheque signed by him to the said cheque
being filled up at a subsequent point in time and presented
for payment by the drawer. There is no provisions in the
Negotiable Instrument Act which either defines the
differences in the handwriting or the ink pertaining to the
material particulars filled up in comparison with the
signature thereon as constituting a material alteration for
the purpose of Section 87 of Negotiable Instrument Act.
What, however, is essential is that the cheque must have
been signed by the drawer. If the signature is altered or
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does not tally with the normal signature of the make, that
would be a material alteration. Therefore, as long as the
cheque has been signed by the drawer, the fact that the
filling of details in the blank cheque perse does not attract
the provisions of forgery.
20. In this case, the complainant has taken a
contention that the accused has agreed to repay the
amount in lieu of his share after the execution of release
deed and issued the impugned cheque for the repayment
of said amount to him. On the contrary, the learned
defence counsel submits that there is no existence of debt
or liability towards the accused. Hence, the accused is not
liable to pay the cheque amount to the complainant. Thus,
it is necessary to define the debt. Aiyar's Judicial
Dictionary defines debt as follows:-
'Debt is a pecuniary liability. A sum
payable or recoverable by action in respect
of money demand.'
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In Webb - Vs- Strention, 1888QBD
518, defined debt as ' a sum of money
which is now payable in the future by
reason of a present obligation, debitum
in praedenti, solvendum in futuro'.
Further, in the case of Banchharam
Majumdar -Vs- Adyanath Bhattachrjee,
(19090ILR 36 Cal 936, Honble High
Court of Calcutta held that 'the word
debt is as applicable to a sum of money
which has been promised at a future day
as to a sum now due and payable.
Thus, the term debt also includes a sum of money
promised to be paid on a future day by reason of a present
obligation. A post dated cheque issued after the debt has
been incurred would be covered by the definition of debt.
However, if the sum payable depends on a contingent
event, that it takes the color of a debt only after the
contingency has occurred. Consideration means
'something in return'. In every legal contract, there must
be something in return. An agreement is legally capable to
be enforced only when each of parties to it gives
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something and gets something. The consideration should
not be unlawful, illegal, immoral or opposed to public
policy. 'No consideration no contract' means every legal
contract needs a lawful consideration, without any lawful
consideration there is no contract. An agreement to
become a contract must give rise to a legal obligation. If
an agreement is incapable of creating a duty enforceable by
law, it is not a contract.
21. Now, coming to the facts of this case, the accused
has taken a defence that the cheque in question has not
been issued by the accused. The accused has also stated that
since the cheque was stolen and he had never signed the
cheque. During entire proceedings, the accused has
disputed signature on the cheque. In support of his defence
that the signature found on the cheque is of the accused or
not, the accused has examined the branch manager of the
bank with whom the accused maintained his account as
DW-1. The branch manger, DW-1 has given a statement
that the signatures of the accused on the cheque do not
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match the specimen signature that the accused had given to
the bank at the time of opening of the bank account. It is
a settled position of law that the dishonour of the cheque
even because of the reason account closed ensues liability
on the accused and the accused is not be acquitted only on
the basis that the cheque has been dishonored because of
the reasons 'account close', 'payment stopped' or 'refereed
to drawer''. It is true that the cheque got dishonored
because of the reason 'insufficient fund' and not because of
the reason of 'signature differs', however, it becomes
necessary and import that to decide whether the signature
found on the cheque is of the accused, in the interest of
justice and fairness, and also in order to determine
whether accused had actually issued the cheque in
question, especially when he has contended that the
cheque in question was stolen and the signatures found on
the the cheque have been forged by the complainant. It is
also settled law that in case of denial signature of the
drawer of cheque, the best witness would be concerned
bank manager and not a handwriting expert. In support
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of this, I rely on citation reported in 2007 Criminal Law
Journal 232, H. M. Sathis -Vs- B.N. Ashok, wherein
the Ho'ble High Court has held that:-
"in case of denial of signature on cheque by
accused, the best witness would be concerned
bank manager since cheque was dishonored
for insufficient funds and signature on cheque
was disputed as forged one."
Therefore, in view of the above authority, it is
abundantly clear that in identifying the signature on
cheque, the Court can rely upon the testimony of the
bank manager. In this case, in order to the prove that the
signature found on the cheque is not of the accused, the
accused had called one Shri. Narayanaswamy, who is the
branch manger of Thyagaraj Co-operative Bank,
Bengaluru, to bring on record the specimen signatures of
the accused and was examined as DW-1. DW-1 has stated
that the signatures on the cheque is not as same as in the
specimen signature i.e., in Ex. D-5. In view of the
aforesaid discussion, the accused has been able to cast a
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doubt in the complainant's version of the case and in the
mind of the Court as to whether the cheque in question
was actually handed over to the complainant in discharge
of legally enforceable liability. Therefore, the accused has
been able to show on the basis of preponderance of
probabilities that his signature on the cheque in question
might be forged. The accused has raised a doubt about his
signatures on the cheque.
22. Section 138 of the Negotiable Instrument Act
states that the cheque must be issued for a legally
enforceable debt. A legally enforceable debt means a debt
that can be enforced by law. In the present case, the
version of the complainant that the accused has
approached him and stated that he is in serious financial
crisis and requested the complainant and his mother to
transfer the property in his name to enable him to raise
the loan on the said property and clear his dues. It is
further alleged that the accused has also agreed to pay
share to the complainant, his mother and his sister and
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also promised to take care of complainant's mother. Based
on the assurance of the accused, the complainant and his
sister executed release deed in favour of accused and his
mother has also executed the gift deed in respect of above
said property. Accordingly, the accused has agreed to pay
Rs. 52,00,000/- in view of the settlement held on 19-
03-2018. Subsequently for repayment of the said agreed
amount the accused issued impugned cheque in his favour.
Ex. D-1 and Ex. D-2 are the gift deed and release deed
and perusal of these documents implies that the parties to
the documents executed the said deeds on account of
natural love and affection between parties standing in a
near relation to each other. There is no mention about a
post dated cheque in the said deeds or for the payment of
money by the accused to the complainant. A question
which arises is that can oral evidence be given about terms
of contract. At this juncture, it is important to extract the
relevant provisions of Section 91 and 92 of the Indian
Evidence Act, which provide as follows:
Section 91 of Indian Evidence Act:-
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"91. Evidence of terms of contracts, grants and
other dispositions of property reduced to form of
documents.--When the terms of a contract, or of
a grant, or of any other disposition of property,
have been reduced to the form of a document, and
in all cases in which any matter is required by
law to be reduced to the form of a document, no
evidence1 shall be given in proof of the terms of
such contract, grant or other disposition of
property, or of such matter, except the document
itself, or secondary evidence of its contents in
cases in which secondary evidence is admissible
under the provisions hereinbefore contained.--
When the terms of a contract, or of a grant, or of
any other disposition of property, have been
reduced to the form of a document, and in all
cases in which any matter is required by law to
be reduced to the form of a document, no
evidence2 shall be given in proof of the terms of
such contract, grant or other disposition of
property, or of such matter, except the document
itself, or secondary evidence of its contents in
cases in which secondary evidence is admissible
under the provisions hereinbefore contained."
Exception 1.--When a public officer is required
by law to be appointed in writing, and when it is
shown that any particular person has acted as
such officer, the writing by which he is appointed
need not be proved.
Exception 2.--Wills 2[admitted to probate in
3[India]] may be proved by the probate.
Explanation 1.--This section applies equally to
cases in which the contracts, grants or
dispositions of property referred to are contained
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in one document, and to cases in which they are
contained in more documents than one.
Explanation. 2.--Where there are more originals
than one, one original only need be proved.
Explanation 3.--The statement, in any
document whatever, of a fact other than the facts
referred to in this section, shall not preclude the
admission of oral evidence as to the same fact.
Section 92 of Indian Evidence Act:-
92. Exclusion of evidence of oral agreement.--
When the terms of any such contract, grant or
other disposition of property, or any matter
required by law to be reduced to the form of a
document, have been proved according to the last
section, no evidence of any oral agreement or
statement shall be admitted, as between the
parties to any such instrument or their
representatives in interest, for the purpose of
contradicting, varying, adding to, or subtracting
from, its terms: Proviso(1) .--Any fact may be
proved which would invalidate any document, or
which would entitle any person to any decree or
order relating thereto; such as fraud,
intimidation, illegality, want of due execution,
want of capacity in any contracting party,
1[want or failure] of consideration, or mistake
in fact or law: (1).--Any fact may be proved
which would invalidate any document, or which
would entitle any person to any decree or order
relating thereto; such as fraud, intimidation,
illegality, want of due execution, want of
capacity in any contracting party, 3[want or
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failure] of consideration, or mistake in fact or
law\:" Proviso (2).--The existence of any
separate oral agreement as to any matter on
which a document is silent, and which is not
inconsistent with its terms, may be proved. In
considering whether or not this proviso applies,
the Court shall have regard to the degree of
formality of the document: Proviso (3).--The
existence of any separate oral agreement,
constituting a condition precedent to the
attaching of any obligation under any such
contract, grant or disposition of property, may be
proved: Proviso (4).--The existence of any
distinct subsequent oral agreement to rescind or
modify any such contract, grant or disposition of
property, may be proved, except in cases in which
such contract, grant or disposition of property is
by law required to be in writing, or has been
registered according to the law in force for the
time being as to the registration of documents:
Proviso (5).--Any usage or custom by which
incidents not expressly mentioned in any
contract are usually annexed to contracts of that
description, may be proved: Provided that the
annexing of such incident would not be
repugnant to, or inconsistent with, the express
terms of the contract: Proviso (6).--Any fact
may be proved which shows in what manner the
language of a document is related to existing
facts.
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Sections 91 and 92 of the Indian Evidence Act are
example of best evidence rule. It means that a party shout
should produce the best evidence available of a fact
depending upon the circumstances of the case. When the
contents of a term of a documents are reduced in the form
of a contract, then the best evidence is the contract itself.
Section 122 of the Transfers of Property Act, which
provide as follows:
Section 122 of Transfers of Property Act 1882 :-
122. "Gift" defined.--"Gift" is the
transfer of certain existing moveable or
immoveable property made voluntarily and
without consideration, by one person, called the
donor, to another, called the donee, and
accepted by or on behalf of the donee.
Acceptance when to be made.--Such
acceptance must be made during the lifetime of
the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is
void.
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Perusal of Section 122 of provides that 'gift is a
relinquishment without consideration of one's own right
in property and the creation of right of another. A gift is
generally regards as a transfer of ownership of a property
where the sender willingly brings into effect such transfer
without any compensation or consideration in monetary
value. It may be in the form of movable or immovable
property. Admittedly, release deed or deed of
relinquishment is a legal instrument where a legal legatee
gives up or releases his legal right in a hereditary property
for another legal heir. A release deed involves a transfer of
right, title and interest in the immovable property and is
considered valid only when it signed by parties in the
presence of witnesses, adequately stamped and registered.
23. Section 91 and 92 of the Indian Evidence Act
mandates that only parties to the contract or their
representatives in interest are barred from giving oral
evidence. The complainant and accused are the parties to
the deed and are covered under Section 91 and 92 of the
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Indian Evidence Act. When the terms of the Contract,
deposition of a property or any matter required to be in
writing under the law, is proved by the document, then
the oral evidence cannot be given to contradict it. After a
document has been produce and to prove its terms under
provisions of 91 and 92 and exclude evidence of any oral
agreement or statement for the purpose of contradicting,
varying adding or subtraction from its terms. This
Court places reliance on the Judgment of the Hon'ble
Supreme Court in the case of Krishi Ptpadan Mandi
Smithi -Vs- Bipin Kumar, (2004) 2 SCC 283, where
it was held that parties who undervalued their
document for payment of stamp duty are precluded
from claiming that their own document does not reflect
the correct market value.
Further in the case of Bai Hira Devi
-Vs- Official Assignee AIR 1955 BOMBAY
122, wherein it was held that in the case of a
convenient, it would not be open to either of
the parties to the document to prove that if
the consideration was mentioned as in the
document or in fact it was more or less.
C.C. No. 4011 / 2020
In the present case, the release deed is executed by
the complainant in favour of accused and both have signed
the document. The release deed clearly records that the
complainant has given up his right on account of his love
and affection. Thus, the complainant cannot say that the
accused has agreed to pay the disputed amount in lieu of
his share by virtue of provisions of Section 91 and 92 of
Evidence Act. Therefore, in the present case, the
complainant cannot give oral evidence to show that the
accused has agreed to pay the amount in lieu of his share.
Therefore, in my opinion, no legal debt or liability exists.
Further, it is nowhere stated in the complaint that the
accused agreed to pay the amount of Rs. 52,00,000/- to
him even though it is not mentioned in the release deed.
The complainant has deposed in the cross-examination
that the accused agreed to pay the amount in lieu of his
share in the presence of his mother and sister. The
complainant has not examined his mother and sister. Non-
examination of the said witnesses fatal to the case of
complainant. In the present case, the release deed is
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executed between parties i.e., complainant, accused and
their sister. They have signed the document. In essence,
the release deed contains details about the property. On
page No. 3 of release deed, it is clearly recorded that the
complainant has relinquished his right in respect of
property on account of love and affection. There is no
mention about a post dated cheque in the release deed or
the complainant relinquished his right in lieu of money.
Therefore, the release deed clearly records that the
complainant has relinquished his right on account of love
and affection. Thus, the complainant now cannot say that
the accused agreed to pay the amount to him in lieu of his
share by virtue of Sections 91 and 92 of Indian Evidence
Act. Therefore, in this case, the complainant cannot give
oral evidence to show that the accused agreed to give his
share by way of cash. Therefore, in the opinion of this
Court, no legal debt or liability exists. In view of the
above discussions, the present case appears to be a fit case
where benefit of doubt can be extended to the accused.
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24. The fact that the accused has drawn the cheque
as stated above can proved by any known method
recognized by law. The mere production of a cheque or
marking the same as an exhibit in a case however, will not
prove that the cheque is drawn by the accused. The factum
of drawing or execution of cheque has to proved by
evidence of person or persons who vouchsafe for the truth
of the facts in issue. It can be proved by direct or
circumstantial evidence, which is admissible in law. This
proposition will be clear from what the Hon'ble Supreme
Court held in Narbada Devi Gupta -Vs- Birendra
Kumar Jaiswal, (2003) 8 SCC at page 751 :
"The legal position is not in dispute that
mere production and marking of a
document as exhibit by the Court cannot
be held to be a due proof of its contents. Its
execution has to be proved by admissible
evidence, that is, by the evidence of those
persons who can vouchsafe for the truth of
the facts in issue."
C.C. No. 4011 / 2020
Like any other document, mere production and
marking of cheque may only prove that a cheque which
contains an order in writing and signature has come into
existence. But, it will not further prove that it is created
or executed by the accused. If the complainant has seen the
accused making or drawing a cheque, by writing in the
cheque and signing the same, as required in Section 5 and
6 of the Act, such person can give direct evidence relating
to such writing and affixture of signature and prove that
accused has drawn the cheque. If complainant is not an eye
witness to the drawing and if there is any other eye
witness, such witness can be examined to prove drawing of
the cheque by accused. In cases in which, there is no eye
witness to drawing of cheque, prosecution can adduce
circumstantial evidence to prove drawing of cheque by
accused. It has also to be borne in mind that there may be
cases in which accused would not by himself write in the
cheque but, he would have caused the cheque to be filled
up by some other person. In such cases, the person who
actually wrote in the cheque can be examined to prove
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that he filled up the cheque, under instruction of accused
or at his instance. In cases in which, even such evidence is
also not available, prosecution can establish
execution/drawing by placing circumstantial evidence
either oral or documentary before court, from which, the
court can draw an inference whether accused has drawn
the cheque or not.
C.C. No. 4011 / 2020
25. The prosecution shall however, make clear to
court, each of the circumstance which is relied upon by it,
to establish drawing of the cheque by accused. The mere
fact that the cheque produced in court came from
possession of complainant alone will not be sufficient to
prove execution, even though it may be one of the
circumstances. No law allows a court to presume that the
cheque which is produced and marked in court was
handed over or delivered to complainant by accused. The
court, at best, can say that the cheque was in possession of
complainant. But, under what circumstances it came to his
possession is to be stated by complainant. In the absence of
such statement, court cannot proceed on any assumption
that it was handed over to complainant by accused. At any
rate, no universal rule can be laid down, what are the
various circumstances to be proved to establish drawing of
cheque by accused, in the absence of direct evidence. It
depends on facts of each case. The court shall consider
whether each of the circumstances is proved by
prosecution, as per law and whether those proved
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circumstances lead to an irresistible conclusion that the
cheque was drawn by the accused, as alleged by
prosecution. In cases in which only circumstantial
evidence is produced before court to prove drawing of
cheque, court shall follow the mode adopted for
appreciation of circumstantial evidence, to enter a finding
whether cheque is drawn by accused, as alleged by
prosecution. If any circumstance or circumstances proved
in the case can be explained on any hypothesis which is
inconsistent with the assertion of drawing of cheque by
accused, accused cannot be said to have drawn the cheque.
C.C. No. 4011 / 2020
26. Whether the cheque was handed over or
delivered to complainant by accused and whether it was
drawn by accused are independent facts, which require
independent proof. The mere production of the cheque in
court will not prove either of the above facts. It seems
from the records in various cases involving offence under
Section 138 of the Act that most of the complaints do not
contain even the relevant facts. The complainant has not
made to speak the relevant facts in box. Everything seems
to be taken for granted. This case also falls under that
category. The cases are often proceeded with, as though
mere production of cheque proves all the relevant facts
which prosecution must establish in a prosecution under
Section 138 of the Act. This approach is not a correct.
For a successful prosecution of offence under Section 138
of the Act, complainant must allege and prove that the
cheque was "drawn" or executed by the accused. In the
absence of an allegation in the complaint that the cheque
was drawn by the accused and in the absence of proof of
such fact, an accused cannot be convicted for offence under
C.C. No. 4011 / 2020
Section 138 of the Act. The court must be satisfied from
the allegations in the complaint and from the evidence
adduced that the cheque was made, prepared or created by
accused. The court must be convinced that the order in
writing which is found in the cheque was made by accused
himself or by some other person at the instance of accused
or under his instructions. Even if such other person
cannot be identified or examined, complainant can still
prove execution by circumstantial evidence. There must
also be satisfactory evidence to show that accused himself
executed the cheque. Then alone, it can be said that
accused has drawn the cheque.
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27. It is well settled that the party who pleads has
also to prove his case. Section 101 of the Indian Evidence
Act, 1872 defines 'burden of proof', which clearly lays
down that whosoever desires any Court to give judgment
as to any legal right or law dependent on the existence of
facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact
it is said that the burden of proof lies on that person. The
complainant has admitted the execution of gift deed by
her mother in favour of accused and he has deposed that
the release deed also executed in favour of accused. A
reading of Ex. D-1 will show that it is a simple gift
without any obligation and the donee is not made liable
for liability. It is not onerous. Admittedly, in the gift
deed i.e., Ex. D-1, the accused did not say the
circumstances under which Ex. D-1 was executed. The
complainant has also accepted the gift. For proving the
acceptance, there need not be any direct evidence. It can be
expressed or implied. It can also be inferred from the facts
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and surrounding circumstances attending the transaction
of gift.
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28. Now coming to the facts, it is not established in
this case that the complainant is the holder of cheque. He
has not prover his entitlement to receive or recover the
amount stated in cheque, as due thereon from the accused.
On an analysis of evidence on record, I find that the case
set up by the complainant that the accused has issued the
cheque for the discharge of debt is not believable. The
complainant has not produced acceptable evidence to show
that the accused has agreed to pay the chque amount.
Further, if the complainant's mother transferred the
property in favour of the accused without her free
consent, the complainant and his sister have every
opportunity to cancel the gift deed on the ground that the
gift deed came into existence against the will of the
complainant's mother. Neither the complainant nor his
sister take any action to revoke the gift deed executed in
favour of accused. The conduct of the complainant reveals
that the alleged gift deed executed by her mother in favour
of accused on account of her love and affection. Further,
the complainant has also executed release deed in favour of
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accused and it reveals that he has executed the release deed
on account of his natural love and affection. It is pertinent
to note that, the complainant has not produce the release
deed alleged to be executed in favour of the accused. He
withholds the said release deed. In this case, the accused
has proved the release-deed and the release deed confront
through complainant. If the complainant relinquished his
right over property in lieu of consideration, what
prevented him to mention the same in the release deed is
not forthcoming. Admittedly, the parties to the deed have
not disclose the pending of civil suit in respect of subject
matter of gift deed and release deed to the concerned sub
registrar at the time of registration of document. Law
protects those who respect it. Non-disclosure of details of
pending litigation concerning the subject matter of the
dispute would amount to material suppression of fact.
The suppression of a material fact by a litigant from
abstaining any relief. In this case, the complainant has
not disclosed in the complaint as well as in his evidence in
respect of civil proceedings in respect of the subject matter
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of gifted property before the Hon'ble High Court of
Karnataka. The complainant has also not disclosed the
execution of gift deed and release deed in the RFA No.
33/2018. There is a clear suppression of fact by the
complainant in this case. The complainant has not all
disclosed pending of proceedings before the Hon'ble
High Court in this case and also to the concerned
Registering Authority at the time of execution of release
deed as well as gift deed. Further, the appeal preferred by
the legal representatives of Suresh came to be allowed and
this fact is also disclosed by the complainant in this case.
Non discloser of the relevant and material document with
a view to obtain an undue advantage would amount to
fraud. Hence, it creates doubt in the mind of Court that
the accused has not issued the impugned cheque to the
complainant for the discharge of debt. The conduct of the
complainant, as revealed from evidence doesn't reconcile
with normal human conduct. The uncorroborated
evidence of PW-1 does not prove her entitlement to
receive or recover the amount from the accused. Hence,
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presumption under Section 139 of Negotiable Instrument
Act cannot be drawn in favour of complainant. The
admission of the cheque alone will not prove the offence
under Section 138 of the Act.
29. It is a settled position of the law that the case of
the complainant should stand on his own legs. It cannot
take advantage of the weakness of the defence, nor can the
court, on its own make out a new case for the prosecution
and convict the accused on that basis. If defence version is
incorrect, it does not mean that the prosecution version is
necessarily correct. Therefore, the contention of the
learned Counsel for the complainant regarding the deep
defence of the accused appears to be of no use in sailing
through the case of the complainant. The Hon'ble Apex
Court in the landmark judgment titled as " Sharad Birdi
Chand Sarda -Vs- State of Maharashtra" (1984) 4 SCC
116", while discussing the principles of appreciation of
prosecution and defence evidence, has held that-
''It is well settled that the prosecution must
stand or fall on its own legs, and it cannot
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derive any strength from the weakness of the
defence. This is trite law. However, where
various links in a chain are in themselves
complete, then a false plea or false defence
may be called into aid only to lend assurance
to the court. In other words, before using the
additional link it must be proved that all the
links in the chain are complete and do not
suffer from any infirmity. It is not the law
that where there is any infirmity or lacuna in
the prosecution case, the same could be cured
or supplied by a false defence or a plea which
is not accepted by a court''.
Thus, in view of the totality of the circumstance and
the settled legal positions as discussed above, the case
attempted to be built by the complainant, appears to be
suffering from fatal infirmities so much so, it goes directly
to the root of the case and shakes the very edifice on which
the case of the complainant rests. It is also relevant to
mention here that it is of paramount importance to
demand evidence of unambiguous, impeccable and of
unimpeachable in nature so as to entail criminal conviction
of the accused and which the complainant has failed to
bring.
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30. In the case of Kulvinder Singh vs Kafeel
Ahmad', Crl L. P. 478 of 2011, decided on 04.01.2013,
Hon'ble Delhi High Court has held that the basic
principle in criminal law is that the guilt of the accused/
respondent, must be proved beyond reasonable doubt and
if there is any slightest doubt about the commission of an
offence, then the benefit has to accrue to him. Further in
the case of Sh. Naveen Sethi Vs. Sh. Pralok Kmar, it was
held as hereunder :-
"At the same time, it is important to
underscore the established canon of criminal
law that in order to pass a conviction in a
criminal case, the accused ''must be'' guilty
and not merely ''may be'' guilty. The mental
distance between ''may be'' guilty to ''must
be'' guilty is a long one and must be travel
not on surmises and conjectures, but by co -
gent evidence."
C.C. No. 4011 / 2020
Accordingly, in view of the above discussions, this
court holds that the complainant has failed to prove his
case. Thus, in view of the totality of the circumstance and
the settled legal positions as discussed above, the case
attempted to be built by the complainant, appears to be
suffering from fatal infirmities so much so, it goes directly
to the root of the case and shakes the very edifice on
which the case of the complainant rests. It is also relevant
to mention here that it is of paramount importance to
demand evidence of unambiguous, impeccable and of
unimpeachable in nature so as to entail criminal conviction
of the accused and which the complainant has failed to
bring. In this case, there is a major contradiction in the
evidence of complainant. The statement of complainant
not corroborated by the material available on the record.
In such an event, it is difficult to accept the version of the
complainant. The above precedents are squarely applicable
to the case in hand. Despite various deficiencies in the
version of the accused, I am unable to overlook the fact
that the alleged transaction itself is uncorroborated and
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unproved. The complainant has failed to prove his case
beyond all the reasonable doubts and it has failed to fulfill
all the ingredients of offence under Section 138 of
Negotiable Instrument Act against the accused. The
accused has been able to rebut the presumption in favour
of the complainant as the standard of proof so as to prove
a defence on the part of the accused is only 'preponderance
of probabilities' and inference of preponderance of
probabilities can be drawn not only from the materials
brought on record by the parties but also by reference to
the circumstances upon which he relies as the same was
held by Hon'ble Supreme Court in M/s Indus Airway
Private Limited and others -Vs- Magnum Aviation
Private Limited and another ( CA No.830 of 2014).
In the light of the above discussions and observations, this
Court has no hitch to hold that the complainant has failed
in proving his case beyond the shadow of reasonable
doubts. This court exonerates the accused for the offence
punishable under Section 138 of Negotiable Instrument
Act. On perusal of records, it shows that the complainant
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has executed the release deed in favour of accused not on
account of the consideration, but on account of natural
love and affection. This fact is not mentioned in the
complaint and also in his affidavit evidence. The
complainant has admitted this fact at the time of his cross-
examination by the accused. Further, the complainant has
not produced the release deed executed in favour of
accused and he withholds the said document. He has not
disclosed the pending of civil proceedings before the
Hon'ble High Court of Karnataka in this case. The
complainant is a guilty of suppression of fact.
31. Admittedly, once the cheque relates to the
account of the accused and he accepts and admits his
signature on the cheque, then initial presumption as
contemplated u/Sec.139 of N.I. Act has to be raised by
the court in favour of the complainant. The presumption
referred to u/Sec.139 of N.I. Act is a mandatory
presumption and not a general presumption. But, the
accused is entitled to rebut the said presumption by
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probable and acceptable evidence. Admittedly, in this case,
the accused had also not taken any legal action against the
complainant after receipt of the summons to recover the
cheque in issue from him. Merely, the accused has not
taken the legal action against the accused is not sufficient
to draw the presumption against him, because in this case,
the complainant failed to prove and establish his
entailment of cheque amount from the accused. In this
case, the complainant failed to prove the existence of
legally enforceable debt. Hence, I answer points No.1 to
3 are in the 'Negative'.
POINT No.4 :-
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32. The people, who approach the Court for relief ,
are under a contract with the Court that they would state
the whole case fully and fairly to the Court and where the
litigant has broken such faith, the discretion of the Court
cannot be exercised in favour of such a litigant. The
obligation to the Court with clean hands is an absolute
obligation. It is also well settled law that the Court has
frowned upon litigants who, with intent to deceive and
mislead the Court, initiated proceedings without full
disclosure of facts and came to the Court with unclean
hands. A litigant who attempts to pollute the stream of
justice or who touches the pure foundation of justice with
tainted hands is not entitled to any relief. No litigant
should be permitted to misuse the judicial process by filing
frivolous petition. It is also settled cannon of
administration of justice is that no litigant has a right to
unlimited drought upon the Court time and public money
in order to get his affairs settled in the manner as he
wishes. Easy access to justice should not used as a license
to file misconceived an frivolous petition. The legal maxim
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'jure naturae aequum est neminem cum alterius
detrimento et injuria fieri locupletiorem', which means
that it a law of nature that one should not be enriched by
the loss or injury to another, is the percept for Courts.
No litigant can play 'hide and seek' with the Courts or
adopt 'pick and choose'. One, who does not come with
facts, cannot hold a Court with soiled hands. Suppression
of material facts is impermissible to a litigant or even as a
technique of advocacy. The person seeking equity must do
equity. It is not just the clean hands, but also clean mind,
clean heart and clean objective that are the fundamental of
judicious litigation. In the case of Jasraj Inder Sing Vs
Hemaraj Multanchand, (1997) 2 SCC 155, the Hon'ble
Supreme Court held as hereunder :-
"Truth, like song, is whole, and half
truth ca be noise! Justice is truth, is
beauty and the strategy of healing
injustice is discover of the whole truth and
harmonising human relations. Law's
Finest hour is not in meditating on
abstraction, but in being the deliver agent
of full fairness."
C.C. No. 4011 / 2020
"Further, in the case of Ved Parkash
Kharanda -Vs- Vimal Bindal, 198
(2013) DLT 555, the Hon'ble High
Court held that the the duty of Court to
discover truth. The truth is the
foundation of justice and should be the
guiding star in the entire judicial process.
C.C. No. 4011 / 2020
33. Further in the case of T. Arivndandam -vs- T.
V. Satyapal and Another, (1977) 4 SCC 464, the
supreme court held that "the frivolous ad manifestly
vexatious litigation should be shot sown at the very
threshold. It is further held that the Courts of law are
meant for imparting justice between the parties. One
who comes to the Court, must come with clean hands. We
are constrained to say that more often than ton, process
of the court is being abused. Property-grabbers, tax
evaders, bank-loan-dodgers and other unscrupulous people
from all walks of life find the Court process a convenient
lever to retain the illegal gains indefinitely. We have no
hesitation to say that a person, who's case is based on
falsehood, has no right to approach the Court. He can be
summarily thrown out at any stage of the litigation. Non-
production and even non-mentioning of the release deed
at the trial is tantamount to laying fraud on the Court. A
litigant, who approaches the Court, is bound to produce
all the documents executed by him which are relevant to
the litigation. If he withholds a vital document in order to
C.C. No. 4011 / 2020
gain advantage on the other side then he would be guilty
of playing fraud on the Court as well as on the opposite
party."
C.C. No. 4011 / 2020
34. Admittedly, the deceased Suresh is the brother
of complainant as well as accused. The legal representatives
of deceased Suresh filed a suit for partition in O.S. No.
6524 / 2011 in respect of property which is subject matter
of release deed against the complainant, accused and other
legal representatives of deceased Ramakrishna. The said
suit came to be dismissed and against the said order the
legal representatives of said Suresh preferred an appeal
before the Ho'ble High Court and said appeal came to be
allowed. During the pendency of the said appeal the gift
deed as well as release deed came into existence. Neither
the complainant nor the other parties to the proceedings
take the leave of the Hon'ble High Court before the
existence of release deed as well a release deed. They have
also not intimated the same to the Hon'ble High Court
after the existence of the said documents. Admittedly, the
complainant has not produced the release deed alleged to
be executed by him in favour of accused. The complainant
did not approach the Court with clean hands. His
conduct was not that of a prudent man. It is nowhere
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stated in the gift as well as release deed that the accused
agreed to pay the amount on account of release of
property in his favour. It is obligation of the parties to the
proceedings to disclose all the transaction in respect of
properties in dispute to the Court. The conduct of accused
as well as complainant reveals that the gift deed and release
came into existence only to defeat the rights of the legal
representatives of Suresh in respect of gifted property.
Here, the accused is also the guilty of suppression of
material fact. It is not the case of accused that the pending
of the RFA NO. 303 / 2018 before the Hon'ble Hight
Court is not within the knowledge. Further, the accused
has received the notice in respect of RFA No. 303/2018
from the Ho'ble High Court of Karnataka and he did not
appear before the Hon'ble High Court after the receipt of
notice. Such being the case, the duty is also cast upon the
accused to take the leave of the Hon'ble High Court of
Karnataka to get the registered document when the
proceedings were pending before the Hon'ble High Court
of Karnataka. Nether the complainant nor accused take
C.C. No. 4011 / 2020
the leave of Hon'ble High Court of Karnataka before the
execution of documents. They have not intimated the
same to the Hon'ble High of Karnataka Court even after
the existence of gift deed and release deed. The conduct of
the accused discloses that the disclosure of proceedings
pending before the Hon'ble High Court at the time of
cross examination of complainant only in order to save his
skin and not to assist the court and also take the favorable
order from the Court. In the present case, the burden of
proof shifted to the complainant to prove the existence of
legally enforceable debt when the accused successfully
rebutted the statutory presumption under Sections 118 (a)
and 139 of the Negotiable Instrument Act. Therefore, it
is for the complainant to prove the guilt of the accused
beyond reasonable doubt by leading cogent evidence on
record. However, the complainant has failed to prove the
existence of legally enforceable debt. Although, the
accused could not prove his defence, but he has succeeded
in rebutting the presumption under Section 139 of the
Act by disproving the case of the complainant. In this
C.C. No. 4011 / 2020
case, the complainant failed to prove the existence of
legally enforceable debt. This Court finds the version of
the complainant improbable and difficult to believe. The
complainant failed to establish that there was a legal debt
or liability standing on the part of the accused towards the
complainant. The conduct of the complainant reveals that
he knowing himself that the claim is false and the purpose
of the execution of release deed is only to defeat the rights
of legal representatives of deceased Suresh. The material
record reveals that the claim made by the complainant is
false. The complainant is not entitled any relief even his
part of claim is false. Further, the complainant has not
given explanation for non production of release deed in
his evidence. It is also settled law that no litigant should be
permitted to misuse the judicial process by filing frivolous
petitions. No litigant has a right to unlimited drought
upon the Court time and public a money in order to get
his affairs settled in the manner as he wises. Easy access to
justice should not be used as a license to file misconceived
and frivolous petition.
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35. Easy access to justice should not be used as a
license to file misconceived and frivolous petition. It is a
solemn duty of the Courts, not merely conclude and leave
the case the moment suspicious are created, It is onerous
duty of the Court, within the permissible limit to find out
the truth. It means, on one hand no innocent man should
be punished, but on the other hand to see no person
committing an offence should get scot free. In the case of
A. Shanmugam -Vs- Ariya Kshatriya, [2012] 6 SCC
439, the Hon'ble Supreme Court held that the entire
journey of a judge is to discern the truth from the
pleadings, documents and arguments of the parties.
Truth is the basis of justice delivery system. The
Hon'ble Supreme Court laid down the following
principles : -
It is the bounden duty of the Court to
uphold the truth and do justice.
Every litigant is expected to state truth
before the law Court whether it is
pleadings, affidavits or evidence.
C.C. No. 4011 / 2020
Dishonest and unscrupulous litigants
have no place in law courts.
The ultimate object of the judicial
proceedings is to discern the truth and do
justice. It is imperative that pleadings
and all other presentations before the
Court should be truthful
Once the Court discovers falsehood,
concealment, distortion, obstruction or
confusion in pleadings and documents,
the court should in addition to full
restitution impose appropriate costs. The
court must ensure that there is no
incentive for wrong doer n the temple of
justice. Truth is the foundation of justice
and it has to be the common endeavor of
all to uphold the truth and no one should
be permitted to pollute the stream of
justice.
It is the bounden obligation of the Court
to neutralize any unjust and or
understand benefit or advantage obtained
by abusing the judicial process.
C.C. No. 4011 / 2020
36. In this case, it is pertinent to note that the
complainant has not produced the release deed and he has
also not disclosed the proceeding pending before the
Hon'ble Hight Court of Karnataka for adjudication in
respect of subject matter of the release deed. The
complainant has not made any attempt to give any
explanation in respect of non-production of release and
nondisclosure of pending of RFA No. 303/2018 in the
complaint as well as in his affidavit. It is also well settled
law that the litigant, who approaches the Court, is bound
to produce all the documents executed by him and in his
favour which are relevant to the proceedings. The
proposition that a contract between the parties will
prevail over an overriding statutory provisions is contrary
to basis norms of jurisprudence. It is also well settled that
there can be no contract which could defeat provisions of
any law. This is one of the important facets of Section 23
of the Contract Act. In this case, the conduct of the
complainant as well as accused clearly reveal that the gift
deed and release deed came into existence in order to
C.C. No. 4011 / 2020
defeat the rights of legal representatives of the deceased
Suresh in the property. During the pendency of RFA No.
303/2018 for adjudication the said deed came into
existence. Neither the complainant nor accused seek the
leave of the Hon'ble High Court of Karnataka before the
existence of the gift deed and release deed. They have not
informed the same to the Hon'ble High Court of
Karnataka ever after the execution of said documents.
C.C. No. 4011 / 2020
37. In this case, it is pertinent to note that the
complainant has not produced the release deed. The
complainant has not made any attempt to give any
explanation in respect of non-production of release deed.
It is also well settled law that the litigant, who approaches
the Court, is bound to produce all the documents executed
by him and in his favour which are relevant to the
litigation. If he withholds a vital document in order to
gain advantage on the other side then he would be guilty
of playing fraud on the Court as well as on the opposite
party. In the case of S. P. Chengalvarya Naidu (dead )
by Lrs -Vs- Jagantath, AIR 1994 SC 853, the
respondent instituted a suit for partition of an immovable
property without disclosing that he had already
relinquished all his right in respect of the subject property
by executing a registered release deed. The appellant
obtained a preliminary decree. At the stage of hearing of
the application for final decree, the appellant became
aware of the release deed and challenged the preliminary
decree on the ground of having been obtained by the
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respondent by playing fraud on the Court. The Trial
Court accepted the appellant's contention and dismissed
the respondent's application for final decree. Th High
Court reversed the findings of the Trail Court against
which appellant approached the Hon'ble Supreme Court.
The Hon'ble Supreme Court allowed the appeal and held
that the respondent played fraud upon the court by
withholding the release deed executed by him. The
Hon'ble Supreme Court held that a person, who's case is
based on falsehood, has no right to approach the Court
and he can thrown out at any stage of the litigation.
C.C. No. 4011 / 2020
38. Truth is the foundation of justice. It must be
endeavor of judge to ascertain truth in every matter and
no stone should be left unturned in achieving this object.
Courts must give greater emphasis on the veracity of
complaint and documents in order to ascertain the truth.
The averments in the complaint are foundation of
litigation. It is the bounden duty and obligation of the
parties to investigate and satisfy themselves as to the
correctness and authenticity of the matter pleaded. The
averments in the complaint under Section 200 of Cr.P.C
must inspire and confidence and credibility. If false
averments are introduce, then the Court must carefully
look into int while deciding a case and insist that those
who approach the Court must approach it with clean
hands. A litigant cannot be allowed to take any benefit of
his own wrongs. The maxim actus curiae neminem
gravabit, which means that the act of the Court shall
prejudice no one. In consonance with principle of equity,
justice and good conscience judges should ensure that the
legal process is not abused by the litigants in any manner.
C.C. No. 4011 / 2020
The Court should never permit a litigant to perpetuate
illegality by abusing the legal process. It is the bounden
duty of the Court to ensure that dishonesty and any
attempt to abuse the legal process must be effectively
curbed and the Court must ensure that there is no
wrongful, unauthorized or unjust gain for anyone by the
abuse of the process of the Court. The Court would be
full justified even imposing punitive costs where legal
process has been abused. No one should be permitted to
use the judicial process for earning undeserved gains or
unjust profits. The Court must effectively discourage
fraudulent, unscrupulous and dishonest litigation. The
Court's constant endeavor must be to ensure that everyone
gets just and fair treatment. Thus, it would be only proper
for this Court deny relief to a complainant who attempts
pollute the stream of justice by coming to it with his
unclean hands. In this case, the complainant has suppressed
the material facts in order to get favorable order from the
hands of this Court. The complainant has tried to use the
judicial process for earning undeserved gains or unjust
C.C. No. 4011 / 2020
profits. The suppression of material facts will not only
amount to playing fraud on the Court but is an abuse of
the process of the Court. In this case, the accused is also
one of the contributor for the abuse of process of law.
Neither the complainant nor accused approached this
court with clean hand, clean mind, clean heart and clean
objects. They knock the door of this Court only to gain
advantage in their favour. It is the legal duty of every
party to state in the pleadings the true facts and if they do
not, they must suffer the consequence. A party, whether
he is a complainant or a accused, or a witness, has to
respect the solemnity of the proceedings in the Court and
he cannot play with Courts and pollute the stream of
justice. It is cases like this, with false claims which load
the Courts, cause delays, consume judicial time and bring
a bad name to the judicial system. This case is a sample
where the facts are glaring. The judicial system has a right
and duty to protect itself from such conduct by the litigant
and impose the cost to parties who consume the judicial
time to achieve their motive. It is not necessary that a
C.C. No. 4011 / 2020
person should have appeared in the witness box. If the
conduct of accused is fair, he would have approached the
Hon'ble High Court of Karnataka to take the leave to get
the gift and release deed. The accused has not taken the
leave of the Hon'ble High Court of Karnataka to get the
release deed and gift deed nor brought to the notice of the
Hon'ble High Court after the existence of said documents.
Admittedly, the legal representatives of deceased Sri.
Suresh filed the suit for partition in respect of subject
matter of release deed in O. S. No. 6254/2011 before the
City Civil Court and said suit came to be dismissed on the
ground that the subject matter of suit is not ancestral and
joint family property. The legal representatives of deceased
Shri. Suresh preferred an appeal in RFA No. 303 / 2015
before the Hon'ble High Court of Karnataka and said
appeal came to be allowed on 11-02-2020. The Hon'ble
High Court of Karnataka allowed the appeal and setting
aside the order of trial Court. The Hon'ble High Court
of Karnataka held that the subject matter of the release
deed is a joint family property and the legal representatives
C.C. No. 4011 / 2020
of deceased have also share in the subject matter of release
deed as well as gift deed. During the pendency of the
appeal before the Hon'ble High Court of Court, the
mother of complainant has executed the gift deed in favour
of accused and the complainant and his sister have also
executed the release deed in favour of accused on 19-03-
2018 without obtaining the leave of the Hon'ble High
Court. The parties to proceedings had not intimated to the
same to the Hon'ble Hight Court of Karnataka even after
the existence of release deed as well as gift deed. Hence,
the conduct of the parties reveals that the alleged release
deed and gift deed came into existence only to defeat the
rights of the legal representatives of deceased Sri. Suresh
and it can be seen from the bare eyes. The obligation is
also on the accused to disclose the true facts before this
Court. He cannot blame the complainant in order to
conceal his motive in respect of the circumstances of
existence of gift deed as well as release deed. Admittedly,
the complainant present this case immediately after the
disposal of the RFA No. 303/2015 pending before the
C.C. No. 4011 / 2020
Hon'ble High Court. The complainant as well as accused
have not disclosed the existence of release deed and gift
deed before the Hon'ble High Court of Karnataka. The
concealed the existence of said deeds before the Hon'ble
High Court of Karnataka. In this case, the complainant
has not disclosed the real facts and also circumstances
under which the alleged release deed and gift deed came
into existence. The complainant and accused are bound
to obey the order of Hon'ble High Court. The
complainant has also not produced the order of Hon'ble
High Court of Karnataka in respect of RFA No.
303/2015. It is also not the case of the complainant that
the 1/5th share in resepct of subject matter of the release
deed fallen to his share as per the order of Ho'ble Hight
Court and he relinquished his share in the said property in
favour of accused in lieu of money. There is no mention in
the release deed in respect of consideration and also the
issuance of impugned cheque. The obligation on the
complainant to disclose the all material fact in respect of
present proceedings. The complainant has deliberately
C.C. No. 4011 / 2020
suppressed the material facts before this Court. Therefore,
the complainant as well as the accursed suppressed the
material facts before this Court in order to achiever their
goals. Hence, this court has imposed the punitive Cost
on the complainant and accused
C.C. No. 4011 / 2020
39. Section 138 creates a deeming offence. The proviso
prescribe stipulations to safeguard the drawer of the
cheque by providing them the opportunity of responding
to the notice and an opportunity to repay the cheque
amount. The condition stipulated in the provisos need to
be fulfilled in addition to the ingredients in the main
provision of Section 138 of the Act. The offence under
section 138 arises only when a cheque that represents a
part or whole of the legally enforceable debt at the time of
encashment is returned by the bank unpaid. Since the
cheque did not represent the legally enforceable debt at the
time of encashment, the offence under Section 138 is not
made out. On a totality of the facts and circumstances and
based on the evidence on record, the presumption under
Section 139 of the Act stood rebutted and that the defence
stood probabalised. From the evidence available on record
reveals that the complainant has given up his property in
respect of gifted property on account of love and affection.
The complainant has not challenged the validity of
release deed. Such being case, then it is difficult to accept
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the version of complainant that the accused has drawn the
cheque for the discharge of debt.
C.C. No. 4011 / 2020
40. Section 139 of N.I. Act creates presumption that
the cheque received in the nature referred to Section 138
of N.I. Act is always issued in discharge of debt or other
liability. For a successful prosecution of offence under
section 138 of the Act, complainant must allege and prove
that the cheque was drawn or executed by the accused. In
the absence of proof of existence of debt, presumption
cannot be drawn in favour of the complainant. Mere
admission of signatures in the cheque would not led to
presumption under Section 139 that the cheque was
received for discharge of debt or liability. The non-
production of release deed executed by him in favour of
accused in the present proceedings was a material
contradiction which indicated that there was a doubt in
regard to the transaction. In this case, the accused had a
probable defence and complainant failed to prove and
establish his case beyond all reasonable doubt. The
complainant has suppressed the material fact before this
Court in order to grab the money from the accused.
Hence, the benefit of doubt given to the accused. In view
C.C. No. 4011 / 2020
of my findings to the above point, I proceed to pass the
following :
ORDER
The accused is not found guilty of the offence punishable under Section 138 of Negotiable Instruments Act.
Hence, the accused is acquitted acting Under Section 255(1) of Cr.P.C of the charges leveled against her for the offence punishable under Section 138 of Negotiable Instruments Act.
The complainant and accused are liable to pay the cost of Rs. 25,000/-each within thirty days from the date of this order. After the deposit of amount towards cost and same shall be forfeited to State. If they failed to pay the cost, it shall be recovered as arrears of land revenue by attaching their properties.
Bail bond of accused is canceled and surety stands discharged. (Dictated to the Stenographer, transcribed and typed on Lap-top, then corrected by me, Print out taken, signed and then pronounced by me in the open court on this the 21st day of April 2023) (K. LAKSHMI) IV Addl. SCJ & ACMM., C.C. No. 4011 / 2020 Bengaluru.
C.C. No. 4011 / 2020 ANNEXURE List of witnesses Examined for Prosecution:
PW.1 : R Ravishankar List of documents marked for prosecution :
Exp.1 : Cheque Exp.1(a) : Signature of accused Exp.2 : Banker's endorsement Exp.3 : Office copy of Legal notice Exp.4 : Postal receipt Exp.5 : C/c of judgment in R.F.A No. 303/2015 Exp.6 : C/c of Gift-deed Exp.7 : Postal cover Exp.8 : Postal Acknowledgement List of witnesses examined for accused :
DW-1 : Narayana Swamy List of documents marked for accused :
ExD.1 : Xerox copy of gift-deed ExD.2 : Copy of rights release deed ExD.3 : Copy of sale-deed ExD.4 : Copy of Khatha Certificate C.C. No. 4011 / 2020 ExD.5 : C/c of specimen signature ExD.6 : Letter dtd: 14.06.2022 (K. LAKSHMI) IV Addl. SCJ & ACMM., Bengaluru.
C.C. No. 4011 / 2020 Dt: 21.04.2023 C-
A-
For Judgment (Order pronounced in open court vide separate judgment) ORDER The accused is not found guilty of the offence punishable under Section 138 of Negotiable Instruments Act.
Hence, the accused is acquitted acting Under Section 255(1) of Cr.P.C of the charges leveled against her for the offence punishable under Section 138 of Negotiable Instruments Act.
The complainant and accused are liable to pay the cost of Rs. 25,000/-each within thirty days from the date of this order. After the deposit of amount towards cost and same shall be forfeited to State. If they failed to pay the cost, it shall be recovered as arrears of land revenue by attaching their properties.
Bail bond of accused is canceled and surety stands discharged.
(K. LAKSHMI) IV Addl. SCJ & ACMM, Bengaluru.
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