Bangalore District Court
Sri.Rangegowda vs Sri.Ravi.H.J on 13 March, 2017
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 13th day of March, 2017
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.17994/2015
Complainant : Sri.Rangegowda,
S/o.Late Thimmegowda,
Aged about 47 years,
R/at.No.842, 16th Cross,
2nd Stage,
Kumaraswamy Layout,
Bengaluru-78.
Occupation: Business.
(Rep. by Sri.Lankesh.L.,
Adv.,)
- VS -
Accused : Sri.Ravi.H.J,
S/o.Late Jogappa,
Aged about 40 years,
R/at.S.I.Honnalagere Village,
C.A.Kere Hobli,
Maddur Taluk,
Mandya District,
Occupation: Business.
2 C.C. No.17994/2015 J
(Rep. by Sri.M.C.Jayakirthi.,
Adv.,)
Case instituted : 2.6.2015
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 13.3.2017
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, the Accused is known to him since 2007 and since then he was taking hand loan from him for his business and personal needs and used to repay the same to him. During March 2013, the Accused approached him and requested for a hand loan of Rs.15,00,000/= in order to build a house in his native place and accordingly from March 2013 till December 2013, he has lent a total sum of Rs.15,00,000/= to the Accused, which the latter 3 C.C. No.17994/2015 J promised to repay within a period of 6 months. But as per his promise, the Accused did not repay the amount, but went on postponing the same on one pretext or the other. In the month of January 2015, the Accused represented to him that he would repay the entire due amount within a short period. Accordingly in the month of March 2015, the Accused issued a cheque bearing No.392222 dated 15.3.2015 for a sum of Rs.11,00,000/= drawn on the Canara Bank, Konanakunte Branch, Bengaluru, assuring of the prompt honoring of the said cheque upon presentation. As per the promise of the Accused, when he presented the said cheque through his Banker, the same came to be returned dishonoured for the reason "Account Closed" as per Bank memo dated 28.3.2015. Though he informed the same to the Accused and demanded for the repayment of the amount, the latter went on postponing the same on one pretext or the other.
3. The Complainant has further submitted that, thereafter left with no other alternative, he got issued a legal notice to the Accused on 22.4.2015 through RPAD, which came to be duly served upon the Accused on 24.4.2015. Though the Accused got issued an untenable 4 C.C. No.17994/2015 J reply to the said legal notice, he has failed to repay the cheque amount.
4. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
5. The Pre-summoning evidence has been led by the Complainant on 27.7.2015. Prima-facie case has been made out against the Accused and he has been summoned vide order of the same date.
6. The Accused has appeared before the Court on 25.1.2016, he has been enlarged on bail, the substance of the accusation has been read over to him, he has pleaded not guilty and claimed the trial.
7. In his post-summoning evidence, the Complainant has examined himself as PW1 and has filed his affidavit, wherein he has reiterated the averments made in the complaint.
5 C.C. No.17994/2015 JP.W.1 has also relied upon the following documentary evidence:-
Ex.P1 is the cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank Memo as per Ex.P2, the office copy of the Legal Notice as per Ex.P3, the Postal Receipt as per Ex.P4, the Postal Acknowledgement as per Ex.P5, the Reply Notice as per Ex.P6 and the Bank Statement as per Ex.P7.
8. The statement of the Accused under Sec.313 of Cr.P.C., has been recorded on 28.5.2016.
9. In Defence evidence, the Accused has examined himself on Oath under Sec.315 of Cr.P.C., as DW1.
In his evidence, DW1 has deposed that, he came to Bengaluru in the year 2007 for the purpose of a job and that he was doing work in the Coco-Cola company through an agency by name Yashas Enterprises and that he used to deliver coco-cola by taking orders in Kumaraswamy Layout.
10. He has further deposed that he was being paid monthly salary and extra incentive upon reaching target 6 C.C. No.17994/2015 J and that the company was not giving credit facility and therefore he had to reach target on his own risk. He was delivering the coco-cola to one Manjunath stores in Kumaraswamy Layout, of which one Nagamahesh was the owner. Hence he requested some loan from him for the purpose of reaching his target and accordingly he told him that he had no money with him and that he would get him financial assistance through his friend who was doing finance business. Accordingly he got Rs. 42,500/- by deducting Rs.7,500 towards interest through the Complainant. The Complainant had given a book in the presence of Nagamahesh for the purpose of getting the entries with regard to the repayments that were to be paid by him. Accordingly he has repaid Rs. 50,000/- inclusive of Rs.7,500/= interest in 100 days. Towards this transaction, the Complainant had collected his 6 cheques. Likewise he used to lend Rs.1 Lakh by deducting Rs. 12,500/- towards interest. The said amount has been repaid by him by way of daily payment of Rs.1,000/-, in respect of which, he has produced the book containing the relevant entries. Similarly he had also availed Rs.2 lakhs from him, which he has paid by deducting Rs.25,000/- towards interest. Even the said 7 C.C. No.17994/2015 J amount has been repaid by him by way of making daily payment of Rs.2,000/- per day for 100 days.
11. He has further deposed that in June 2013, he was not able to repay Rs. 38,000 within 100 days in respect of Rs. 2 lakhs which he had taken from him. Therefore he got transferred my two wheeler bike bearing registration no. KA05 HP 7638 for Rs. 38,000/- in his name. Likewise he had transaction with him till December 2013. By December he repaid the entire loan amount which he owed to him. He had also informed him that as he was resigning from the job, he was not in need of any money.
12. Accordingly he had issued his 6 cheques to the Complainant and after the coming into force of the CTS cheques, he took back his 6 old cheques and issued 6 CTS cheques to him. After the repayment of the entire loan, though he sought for the return of his cheques, the Complainant went on postponing the same on the ground that they were misplaced and that he would return them after they were traced out. He sought for the return of the book in which the Complainant had endorsed for having received the amount from him, but he retained them with 8 C.C. No.17994/2015 J him undertaking to give it to the Complainant once his cheques were returned to him. As he was going back to his native place, he once again sought for the return of his cheques by informing to him that he intended to close his account. However he failed to return his cheques. Hence he returned the remaining cheques which were with him and went to his native by closing his bank account. When he was in his native, he received notice claiming that, in the year 2013 he had availed a loan of Rs.15 lakhs for the purpose of house construction. (Rs.11 lakhs pertaining to this case and Rs.4 Lakhs pertaining to C.C.No.17992/15).
13. D.W.1 has further deposed that he not constructed any house as claimed by the Complainant and that he has constructed house in 2009, the house warming ceremony of which, was performed in February 2010. After the clearance of the loan amounts, the Complainant was taking back the books containing the entry pertaining to the payments that were being made by him and the entries as well as the signatures in Ex.D- 2 have been made by the Complainant. According to D.W.1, he has not availed any loan from the Complainant 9 C.C. No.17994/2015 J as alleged by him in the complaint and therefore prayed for the dismissal of the complaint.
14. DW1 has been cross-examined by the learned counsel for the Complainant.
In his cross-examination, DW1 has admitted that, presently he is residing in Bengaluru and his present residential address is Chikkegowdana Palya, Thalaghattapura Post, Bengaluru and that presently he is not working anywhere. He has further deposed that, he has studied upto 12th Standard (JOC) and after he came to Bengaluru, he was only working for Coca-cola company though an agency and prior to it, he was not doing any work. According to him, at that time, he was getting a monthly salary of Rs.6,000/= and extra incentive upon reaching the target fixed by the company. Other than the salary, he was getting an extra monthly incentive amount per month for Rs.6,000/= to Rs. 7,000/= and in case he failed to reach the target, there was no payment of incentive. Other than the salary and the incentive, he had no other source of income.
15. From 2007 to 2011 he was receiving the salary and incentive in cash and from 2011 through cheque.
10 C.C. No.17994/2015 JAccording to DW1 his account was in Bank of India, V.V. Puram Branch, Bengaluru and that he opened an account in Canara Bank, Konanakunte Cross Branch in the year 2007 and that from 2007 till 2014-15 he had his two Bank accounts.
16. DW1 has further admitted his acquaintance with the Complainant since 2007 and he has also deposed that, he was not availing loans from persons other than from the Complainant and that he was availing loans from the Complainant both in cash as well as through cheque. According to DW1, he was maintaining an entry about the loans in a diary, not only at the time of receiving the loan by way of cash, but also at the time of availing loans by way of cheques.
17. It is further deposed by DW1 that, he used to inform the Complainant about the specific purpose for which he was availing loans from him, but the Complainant was not verifying about the purpose for which he used to utilize the loans from him. However DW1 has denied the suggestion that the Complainant used to lend money to him as and when he sought for the same from him and he has further denied that, he has 11 C.C. No.17994/2015 J availed a total loan of Rs.15,00,000/= from the Complainant from March 2013 to December 2013 and that he has availed a loan of Rs.10,50,000/= out of Rs.15,00,000/= by way of cheques and Rs.4,50,000/= by way of cash. He has also denied that, he has availed the said loans from the Complainant on the pretext of constructing a house in his native place. However according to DW1 he has not constructed any house in his native place.
18. By relying upon Ex.P-7, it is suggested to DW1 that, he has received a total loan of Rs. 10,50,000/= from the Complainant by way of cheques from March 2013 to December 2013, for which the explanation given by the Accused is that as per Ex.P-7 he has availed a loan of Rs.1.75 lakhs from the Complainant and after his repayment of the same, with an interest of Rs.25,000/=, the Complainant has lent a fresh loan of Rs.1.75 lakhs to him. However DW1 has admitted that a sum of Rs.10.5 lakhs has been credited to his account by way of 7 cheques belonging to the Complainant.
19. However DW1 has denied that in July 2013 he had availed Rs.2 Lakhs each by way of cash twice and 12 C.C. No.17994/2015 J Rs. 50,000/= in the month of December 2013 from the Complainant by way of cash. According to DW1, the writings found on Ex.D2 (marked in C.C.No.17992/2015) have been written in December 2013.
20. According to DW1, he had issued his 6 cheques to the Complainant in the year 2007 i.e., at the time of the commencement of the transactions with the Complainant and that at that time he was due to pay him Rs.42,500/=. According to him, towards the repayment of the said amount of Rs.42,500/, he had issued his 6 blank cheques to the Complainant and in February 2013, he had issued his 6 CTS Cheques to the Complainant and at that time, he was due to pay a total amount of Rs. 1,75,000/= to him.
21. According to DW1 the reason for the issuance of 6 CTS cheques to the Complainant is because the latter had demanded for the same from him. According to him, except with the Complainant he has not made any transaction with anybody and therefore he is aware of the fact that his 6 cheques were in the custody of the 13 C.C. No.17994/2015 J Complainant, which are referred to by him in his Reply Notice at Ex.P6.
22. It is denied by DW1 that, he has not quit his job due to health problem, but was compelled to resign from the Company as he was cheating his Company and that in the year 2013 he had also lost money in his Cricket betting. It is further denied by DW1 that, he had taken loans from various persons even in his native place and without repaying the same, he absconded from his native and started residing in Bengaluru and that for the same reason, he has not given his correct address before the Court.
23. It is further denied by DW1 that, till date, he is running a shop by name Mandya Gowdara Halemane on the Uttarahalli Main Road in Bengaluru and though he is self employed, he is deposing falsely that he is unemployed now.
24. It is further elicited from D.W.1 that, his account in the Bank of India, V V Puram Branch is my Salary account, which was opened by his employer that the cheque in question is drawn on his personal account 14 C.C. No.17994/2015 J in the Canara Bank. It is further admitted by him that, after 2011, his salary and other incentives were being credited to his salary account in the Bank of India and that his salary was being enhanced once in every two or three years.
25. It is further elicited from DW1 that, his fixed salary in the year 2013-14 was Rs.6,500/- to Rs.7,000/- per month and inclusive of the incentives, it was around Rs.13,000/- to Rs.14,000/- and that he was not being paid his salary every month regularly. According to him, his account in the Bank of India, V V Puram Branch is still in existence, but he is not doing any transaction from the said account and he closed his Canara Bank account in the year 2014, while shifting to his native place and as he was not using that account and there was requirement of maintaining of a minimum balance of Rs.1,000/- and he was in need of Rs.1,000/- then, he closed the said account.
26. According to DW1, except the six cheques given by him to the Complainant, he has surrendered the remaining cheque leaves to the bank at the time of the closure of his bank account, but he has not given the 15 C.C. No.17994/2015 J stop payment instructions to his bank in respect of the six cheques, which were issued by him to the Complainant. However he has denied the suggestion that, he has not issued any cheques to the Complainant before the closure of his bank account and that he had issued only two cheques to him and not six cheques as claimed by him.
27. According to DW1, as he had reposed faith in the complainant, he has not given stop payment instructions to his Bank. Thereafter DW1 has denied the entire case suggested to him by the counsel for the Complainant and he has further denied that, he had no daily income, so as to repay the loan amount to the Complainant on day to day basis and that he has created Ex.D-4 for the purpose of the present case and he has further denied that the transaction shown in Ex.D-2 is not in respect of the transaction stated in the present case.
28. Final arguments were advanced at length by the learned counsels representing both the sides.
16 C.C. No.17994/2015 J29. The learned counsel for the Complainant has prayed for the conviction of the Accused on the ground that, the Accused has not disputed the financial capacity of the Complainant and he has admitted the receipt of the loan from the Complainant. It is further argued that there is no proof led by the Accused about his alleged repayment of the loan to the Complainant and there is no proof of the financial capacity of the Accused to have repaid the entire loan to the Complainant that too within 270 days.
30. It is further argued that the Accused has claimed that he is due to pay only Rs.80,000/= to the Complainant, the defence which is not taken by the Accused earlier in his reply notice.
31. It is further argued that the Accused has taken inconsistent defences and there is no single document produced by the Accused to prove his capacity to repay Rs.10,50,000/= within a span of 272 days. The Accused has admitted that he was in need of Rs.1000 and therefore he closed his account. This fact also establishes his financial capacity.
17 C.C. No.17994/2015 J32. It is finally argued that the conduct of the Complainant in not taking steps like giving Stop Payment Instructions proves that his defence is improbable and unbelievable. It is lastly argued that, the presumption under Sec.118 r/w.Sec.139 of the N.I. Act is in favour of the Complainant and thus the Accused be convicted for the offence punishable under Sec.138 of the N.I. Act.
33. On the other hand, the learned counsel for the Accused has prayed for the acquittal of the Accused on the ground that, the dates of the alleged lending or mode of lending is neither pleaded nor proved by the Complainant. The Accused has not availed a loan of Rs.15 Lakhs at one stretch and it is not the defence of the Accused that he has repaid Rs.15 Lakhs at one stretch.
34. It is further argued that when the Complainant claims that the Accused has no financial capacity then it cannot be believed that he could have lent a huge loan of Rs.15 Lakhs to the Accused. Ex.P7 i.e., the Statement of Account is not proved as per law. The Complainant has failed to prove his financial capacity. The Complainant has admitted that he is not an Income Tax Assessee.
18 C.C. No.17994/2015 J35. It is further argued that the Complainant does money laundering business and Ex.D2 is not disputed by the Complainant. The entries in Ex.D2 are intermittently after a gap of 5 days each and similar entries are found in Ex.D3. it is also argued that the Complainant concealed the facts and about the entries in Ex.D2.
36. The Complainant has admitted that the contents of Ex.P1 are in his hand writing. The Complainant has admitted that the Accused is an educated person, but says that he has filled up the cheque in question on 24/3/2015 that means, the cheque in question was in his possession prior to 24/3/2015. As per the complaint there is no pleading that the Accused issued a blank cheque.
37. It is further argued that the Complainant has not disputed the Invitation Card at Ex.D4 and it is not the case of the Complainant that apart from the house at Ex.D4, the Accused has constructed one more house. Moreover Ex.D1 is dated 26/6/2013 and it cannot be believed that the Complainant could have purchased bike from the Accused for Rs.38,000/= when the latter owed to him an alleged loan of Rs.15 Lakhs.
19 C.C. No.17994/2015 J38. It is further argued that Ex.D2 proves the defence of the Accused. The Complainant cannot rely upon the weakness of the defence of the Accused. The contents of the Reply Notice at Ex.P6 is the first defence of the Accused. The Accused is not expected to lead his negative evidence and the evidence of the Complainant is not corroborated and the Complainant has failed to prove his case beyond reasonable doubt and also the fact that the cheque in dispute came to be issued by the Accused in his favour towards the discharge of the legally enforceable debt and therefore the Accused has successfully rebutted the presumption available in favour of the Complainant and thus prayed for the acquittal of the Accused.
39. I have considered the submissions and perused the record carefully.
40. The learned counsel for the Complainant has relied upon the following decisions:-
1. In Smt.M.Suguna Vs., Muni Krishna, reported in 2014(4) KCCR 3079,
2. In Sripad Vs., Ramadas.M.Shet, reported in 2014(4) AKR 98, 20 C.C. No.17994/2015 J
3. In T.Vasanthakumar Vs., Vijayakumari, reported in AIR 2015 SC 2240,
4. In Latha.K.Nair Vs., M/s.Gold Mohar Foods & Feeds Ltd., reported in 2008(2) AIR Kar R 91.
41. The learned Defence Counsel has relied upon the following decisions:-
1. In M.S.Narayana Menon Vs., State of Kerala and ano., reported in 2006(3) SCC 30,
2. In Krishna Janardhan Bhat Vs., Dattatraya G.Hegde, reported in 2008 AIR SCW 738;
3. In Kumar Exports Vs., Sharma Carpets, reported in 2009(2) SCC 513;
4. In K.Subramani Vs., Damodara Naidu.K, reported in 2015(1) SCC 99;
5. In Omniplast Pvt Ltd., Vs., Standard chartered Bank and ors, reported in (2015)15 SCC 693.
42. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
21 C.C. No.17994/2015 J(i) Drawing up of a cheque by the Accused towards the payment of the amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section
138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
43. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".22 C.C. No.17994/2015 J
44. Also, Sec. 118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) 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;"
45. Thus, the Act clearly lays down the presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused, towards the discharge of his liability in favour of the Complainant.
46. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
47. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
23 C.C. No.17994/2015 J48. The first defence raised by the Accused is with regard to the financial capacity of the Complainant so as to have allegedly lent the loan to him. No doubt the Accused has not disputed his acquaintance with the Complainant as well as having financial transaction with him. But it is specific defence of the Accused that, the Complainant, who is admittedly not an income tax assessee cannot be believed to have advanced a loan of Rs.15,00,000/= to the Accused as claimed by him. In such circumstance, it is the bounden duty of the Complainant to prove that, he had the requisite financial capacity to do so.
49. To discharge this burden, during his cross- examination, it is deposed by the Complainant that, he is doing real estate business on commission basis, from which, he has an annual income of Rs.10,00,000/= to Rs.15,00,000/= and that, he does not do money lending business and that he is not an income tax assessee and that he can produce his Bank statement. Though the Complainant has denied that neither in his complaint nor in his notice, he has stated the dates nor the quantum of his alleged lending of the loan amounts to the Accused on various dates, there is no specific 24 C.C. No.17994/2015 J averment about the same either in the notice or in the Complaint.
50. According to the Accused, he has not availed Rs.15,00,000/= at one stretch from the Complainant and it is not his defence that, he has repaid the entire loan amount to the Complainant at one stretch. Though the non-filing of the IT Returns by the Complainant as admitted by him may not be a serious factor to be considered for the present case, but it certainly reflects upon the financial capacity of the Complainant. In this regard, it is pertinent to note that, there is no single document produced by the Complainant so as to prove his financial capacity before the Court.
51. Though according to the counsel for the Complainant as pointed out in his arguments the Accused has not disputed the financial capacity of the Complainant, but while cross-examining him, when a question has been put to him, as to, if he could produce the documents pertaining to his financial source, it is sufficient to hold that, there is a challenge to the financial capacity of the Complainant. Though in this regard it is argued by the learned counsel for the 25 C.C. No.17994/2015 J Complainant that, as the Accused himself has admitted that he used to avail loans from the Complainant, that is not sufficient to hold that he has admitted the financial capacity of the Complainant because there is a vast difference when the Complainant claims that, he has advanced a huge loan of Rs.15,00,000/= to the Accused that too without even collecting any documents from him for the purpose of security. The Complainant cannot be permitted to shift the burden of proving his case on the Accused, because it is a well settled principle of law that, the burden of proving the case is entirely upon the Complainant and that the standard of proof that is required on the part of the Complainant is high when compared to that of the Accused. Therefore the Complainant cannot find fault with the defence of the Accused by claiming that, the Accused has not led any proof so as to prove his financial capacity to have repaid the entire loan to the Complainant that too within a span of 270 days.
52. Further according to the counsel for the Complainant, when the Accused himself admits that his annual income was Rs.40,000/= to Rs.50,000/=, he cannot be expected to have repaid the entire loan to the 26 C.C. No.17994/2015 J Complainant though not at one stretch, but from the period March 2013 to December 2013, it is for the Accused to establish the said fact. However just because the Accused has admitted having received the loans from the Complainant, it cannot lead to an inference that the financial capacity of the Complainant is admitted by the Accused.
53. As per the Complainant himself, the Accused used to avail small loans of Rs.10,000/= and Rs.20,000/= as hand loans from him, which he used to repay to him. However the Complainant has denied that, he used to repay the loans by way of making daily repayments of Rs.500/= or Rs.1000/= in the event of availing a loan of Rs.1000/=. When the learned defence counsel has confronted a pocket diary as per Ex.D2 to the Complainant and suggested to him that as per the entries found in the said document, the Accused used to make repayments of such loans to him by making daily payments. However when the entries in the said dairy are carefully gone through, it goes to show that there is an intermittent break up of 5 days to 6 days each in between the 2 days mentioned therein, which clearly substantiates the defence version of the Accused that, he 27 C.C. No.17994/2015 J used to make a daily payment to the tune of Rs.1000/= to Rs.2000/= in favour of the Complainant. No doubt it is the specific case of the Complainant that the Accused owed to him a loan to the extent of Rs.15,00,000/=, but he admits that as per the document at Ex.D1 he has purchased a two wheeler belonging to the Accused on 26.6.2013 for a sale consideration of Rs.38,000/=. In this regard it is the defence of the Accused that, when he was not in a position to repay Rs.38,000/= within 100 days in respect of the loan of Rs.2,00,000/= in June 2013 in favour of the Complainant, the latter got transferred his two wheeler bike for Rs.38,000/= in his name.
54. Interestingly the Complainant has not denied the said transaction, but according to him, as the Accused intended to sell his two wheeler, he purchased the same by paying the amount of Rs.38,000/= to him by way of cash. But this version of the Complainant cannot be believed and accepted by this court at any stretch of imagination, because of the fact that, as on the date of the registration of the said motor bike in the name of the Complainant, the Accused still owed the amount in favour of the Complainant. Therefore it is beyond imagination that, when the Accused himself owed the 28 C.C. No.17994/2015 J loan amount in favour of the Complainant, the latter could have paid the sale consideration of Rs.38,000/= to the Accused in respect of his two wheeler. Therefore the defence of the Accused that, the Complainant has adjusted the price of the said two wheeler by transferring the said two wheeler in his name is highly probable and this court cannot find any doubt or any suspicion in the defence version pleaded by the Accused.
55. No doubt the Complainant has produced his Bank statement as per Ex.P7, but in this document, it could be seen that, even prior to the alleged transaction there are entries dated 10.2.2012, by virtue of which, a sum of Rs.87,500/= is paid in favour of the Accused and the same is debited from the account of the Complainant and likewise the entries dated 3.4.2013, 25.5.2013, 15.6.2013, 31.7.2013, 7.8.2013, 5.9.2013 and on 1.10.2013, the amounts of Rs.1,75,000/= on 5 dates and Rs.1,00,000/= once and a sum of Rs.75,000/= once debited from the account of the Complainant in favour of the Accused through the respective cheques. The Accused has taken up the defence with regard to these entries that such payments have been made by the Complainant in his favour by deducting Rs.25,000/= out 29 C.C. No.17994/2015 J of the loan of Rs.2,00,000/= and the same have been repaid by him, but finally he is liable to repay only Rs.80,000/= in favour of the Complainant. But the Complainant has denied this defence version and according to him, all these payments made by the Accused are in respect of the loan of Rs.10,50,000/= through cheques and Rs.4,50,000/= by way of cash advanced by him in favour of the Accused.
56. However when this Statement of Accounts is carefully gone through, it goes to show that, at no point of time, there has been such huge balance found in the account of the Complainant and prior to the said entries, certain amounts have been credited to the account of the Complainant and immediately thereafter some amounts have been debited in favour of the Accused. In such circumstance, it cannot be held that the Complainant had to requisite financial capacity, so as to prove that, he had the capacity to lend a huge loan of Rs.15,00,000/= to the Accused. Therefore only by relying upon Ex.P7, it cannot be believed that the Complainant's financial capacity is proved and therefore the said document does not prove the case of the Complainant in it's entirety. No doubt it is elicited from the Accused that a sum of 30 C.C. No.17994/2015 J Rs.10,50,000/= has been credited to his account by way of 7 cheques of the Complainant, but that sole admission given by the Accused cannot be considered by this court in isolation. Moreover a stray admission cannot be considered by the court by not considering the other evidence available on record.
57. According to the Accused, in respect of the entries made in Ex.P7, he has availed a loan of Rs.1,75,000/= from the Complainant and only after he has repaid the said amount with an interest of Rs.25,000/=, the Accused has lent a further loan of Rs.1,75,000/= to him. This defence version is supported by the documentary evidence at Ex.D2, which clearly goes to show that, a sum of Rs.2,00,000/= is said to have been repaid by the Accused by way of making daily payments as per the entries found in Ex.D2. Though the Complainant has denied that, the writings as well as the signatures in the said diary belong to him, he has not disputed the genuineness of the documentary evidence at Ex.D2. Moreover the Complainant has not disputed the genuineness of Ex.D2 or he has not alleged that it is a document created by the Accused only for the purpose of proving his defence. In such circumstance, the 31 C.C. No.17994/2015 J documentary evidence at Ex.D2 clearly corroborates the defence version of the Accused. Therefore it is clear that the defence of the Accused is probable, so as to rebut the case of the Complainant.
58. The Accused has raised another defence that, he has not constructed any house in his native place, for the purpose of which, he is alleged to have loans from the Complainant. In such circumstance, it is the burden cast upon the Complainant to prove that he has lent the loan to the Accused for that specific purpose. But the Accused has categorically denied that, he has constructed his house in his native place and he has also deposed that it is his mother who has constructed her own house in the year 2010.
59. To substantiate this defence version, the Accused has produced the Invitation card of the house warming ceremony as per Ex.D4, which is dated 4.2.2010. Interestingly the Complainant has not at all disputed the genuinety of this document while cross- examining the Accused. Therefore it is proved through the documentary evidence at Ex.D4 by the Accused that, his mother has constructed the house in his native place 32 C.C. No.17994/2015 J in the year 2010 itself i.e., much prior to the alleged loan transaction.
60. It is further pertinent to note that, according to the Accused, as he was resigning his job he was not in need of any money and therefore by December 2013, he had repaid the entire loan amount which he owed to the Complainant. To substantiate this contention the Accused has produced his Relieving Letter as per Ex.D3, as per which, it is informed to him that, his resignation has been accepted and he has been relieved from the Company on 10.3.2014. According to the Accused, he had informed the Complainant that, as he was resigning from his job, he was not in need of any money and though after the repayment of the entire loan, he sought for the return of his cheques, the Complainant went on postponing the same on the ground that, they were misplaced and that he would return them after they were traced out. But in his cross-examination, the Accused has denied that, he was compelled to resign from the Company since he had cheated his Company and that in the year 2013, he had also lost money in Cricket betting and that even in his native place, he had taken loans from various persons and without repaying the same, he 33 C.C. No.17994/2015 J had absconded from there and stared residing in Bengaluru.
61. Interestingly when the Complainant has taken all these stands while cross-examining the Accused, which have been denied by the latter, the burden is once again shifted upon the Complainant to prove the same beyond reasonable doubt. But as could be seen from the record, except suggesting all these facts to the Accused, there is no iota of evidence led by the Complainant in this regard. Therefore it is clear that the Complainant has not been able to demolish the defence version of the Accused. No doubt it is elicited from the Accused that, he had his accounts in the Bank of India of V.V.Puram Branch and his personal account in the Canara Bank and that he closed his Canara Bank account in the year 2014, while going to his native place and that he closed it, because he was not using that account and he was in need of Rs.1,000/= and there was a requirement of maintaining a minimum balance of Rs.1,000/= in the said account. However it is not the case of the Complainant that, the Accused has closed his account after the issuance of the cheque in dispute in his favour. Moreover there is not even a single question put to the Accused as to when he 34 C.C. No.17994/2015 J closed the said account and it is not the claim of the Complainant that the Accused has closed the said account intentionally so as not to honour the cheque in question.
62. It is further pertinent to note that, the Complainant has not even denied the fact stated by the Accused that, except the 6 cheques given by him to the Complainant, he has not surrendered the remaining cheque leaves to the Bank at the time of the closure of his Bank account and that he has not given stop payment instructions to his Bank in respect of the 6 cheques, which were issued by him to the Complainant. According to the Accused, it is only the two cheques pertaining to the present case as well as that of C.C.No.17994/2015 that have been issued by him to the Complainant, but as per the contents of the reply notice he has also issued 4 other cheques as stated in para No.7 of his reply notice.
63. It is pertinent to note that, even in his defence taken at the earliest point of time i.e., in the Reply Notice, the Accused has reiterated the same defence and the Complainant has nowhere denied or disputed the 35 C.C. No.17994/2015 J contents of the said Reply Notice. Moreover even while cross-examining the Complainant the Accused has reiterated the same defence, as set out by him in his Reply Notice at Ex.P6. If at all these defences taken by the Accused in his reply notice were to be false, then nothing prevented the Complainant from issuing a Rejoinder to the same by denying the averments made in the said reply notice by the Accused. He, having failed to do so, it is to be inferred that he has admitted the contents of the Reply Notice.
64. Therefore by appreciating the entire evidence available on record, it clearly goes to show that though the Complainant has tried his best to prove his case, he has failed to do so beyond reasonable doubt.
65. No doubt after his arguments, the learned counsel for the Complainant has failed a memo, in which, he has calculated the number of days on the basis of the payments that were to have been made by the Accused on daily basis as per his defence version. But as it is a well settled principle of law that, before looking into strength or the weakness of the defence of the Accused there should not be any suspicious 36 C.C. No.17994/2015 J circumstances surrounding the case of the Complainant. But as already discussed in the present case the Complainant has failed to prove his case beyond reasonable doubt and on the contrary, the defence of the Accused is probable believable and reliable.
66. In view of the aforesaid reasons and discussions, I proceed to pass the following: -
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act.
His bail bond and surety bond stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 13th day of March, 2017).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:-37 C.C. No.17994/2015 J
P.W.1 : Rangegowda.T
2. List of documents exhibited on behalf of the Complainant:-
Ex.P-1 : Original Cheque; Ex.P-1(a) : Signature of the Accused; Ex.P-2 : Bank Memo; Ex.P-3 : Copy of the Legal Notice; Ex.P-4 : Postal Receipt; Ex.P-5 : Postal Acknowledgement; Ex.P-6 : Reply Notice; Ex.P7 : Statement of Accounts.
3. List of witnesses examined on behalf of the Accused:-
DW-1 : Ravi.H.J
4. List of documents exhibited on behalf of the Accused:-
Ex.D-1 : Delivery Note (Marked through P.W.1 in C.C.No.17992/15) Ex.D-2 : Pocket Diary; (Marked through P.W.1 in C.C.No.17992/15) (SARASWATHI.K.N), XVI ACMM, Bengaluru City.38 C.C. No.17994/2015 J
13.03.2017 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of Negotiable Instruments Act.
His bail bond and surety bond stands cancelled.
XVI A.C.M.M., B'luru.