Bangalore District Court
Sri.Satish Kumar.B vs Mr.Shivakumar.R on 31 March, 2015
IN THE COURT OF THE V ADDL. SMALL CAUSES
JUDGE & 24th ADDL. CHIEF METROPOLITAN
MAGISTRATE
Court of Small Causes, Mayo Hall Unit, Bangalore
(SCCH-20)
Dated this the 31st day of March, 2015
Present: Smt.K.BHAGYA,
B.Com., LL.B.
V Addl. Small Causes Judge & XXIV
A.C.M.M., Bangalore
C.C.No.27408/2011
Judgment U/s 355 of Cr.P.C
Complainant : Sri.Satish Kumar.B,
S/o Balasundaram,
Aged about 39 years,
Residing at No.152, 6th Cross,
Jai Jawan Nagar,
Subbannapalya,
Bangalore-560 033.
(By Pleader Sri.V.R.K.Sudhir)
(SCH-20) 2 CC 27408/11
:Vs:
Accused : Mr.Shivakumar.R,
Son of late Raghavan,
Aged about 39 years,
No.248, I Block, HRBR Layout,
Kalyan Nagar,
Bangalore-43.
(By Pleader M/s Sebastian & Co.,)
The offence complained
of or proved : U/s 138 of Negotiable
Instruments Act.
Plea of accused &
his examination : Pleaded not guilty
Final order : Acting u/s 255(1) of
Cr.P.C. accused is
acquitted
Date of such order : 31-03-2015
* * * * *
J U D G M E N T
The complainant by name Sri.Satish Kumar.B has filed this complaint against the accused by name (SCH-20) 3 CC 27408/11 Sri.Shivakumar.R, for the offence punishable U/sec 138 of N.I. Act.
02. It is the case of the complainant that, the complainant and accused well acquaintance with each other for the past several years, accused is doing business and having an office in the name and style of M/s SYSCON at Kalyan Nagar, Bangalore-43, in order to develop his business, accused approached and requested the complainant for financial assistance of Rs.44,00,000-00, agreeing to repay the same within two years with interest at the rate of 12% p.a. Believing the words of the accused, the complainant paid a sum of Rs.44,00,000-00 by way of cash on 12-06-2008 to the accused and he executed an Agreement on the same day in favour of the complainant and also hypothecated the original sale deed dt:03-02-1992 of the property at Tamilnadu, towards security for due discharge of the liability and thus, accused have created charge over the said property in favour of the complainant. Even after expiry of two years, accused has not chosen to pay interest nor the principal amount, hence, complainant (SCH-20) 4 CC 27408/11 wrote a letter dt:30-07-2010 to the accused, requesting to discharge the entire liability together with interest. After receipt of the letter the accused gave reply dt:28-08-2010 by acknowledging the debt and further towards discharge of the principal amount, accused has issued two cheques bearing Nos.013893 & 870754 dt:25-01-2011 and 05-02-2011 drawn on South Indian Bank Ltd., Maruthi Seva Nagar, Bangalore-33 respectively, for a sum of Rs.22,00,000-00 each, by assuring to the complainant that both the cheques will be honored on its presentation and agreed to pay the interest within a short period. Then the complainant presented the said cheques for realization through his banker i.e., State Bank of India, SBI-CCPU Branch, Banaswadi, Bangalore. But the same were returned dishonoured on 10-03-2011 with a shara "Funds Insufficient". Thereafter, the complainant got issued a legal notice to the accused on 26-03-2011 through his counsel through RPAD and UCP, calling upon the accused to pay the cheques amount within 15 days from the date of receipt of (SCH-20) 5 CC 27408/11 notice. The notice sent by RPAD was returned back and the notice sent by UCP was duly acknowledged by the accused. Even after the receipt of the notice, the accused made an untenable reply notice on 07-04-2011 and failed to pay the cheques amount within 15 days. Hence the complainant is before this Court with this complaint.
03. After registration of this complaint, summons and NBW have been issued to the accused. He has appeared before the Court through his counsel and got released on bail. Thereafterwards, this Court has recorded the plea of the accused. As the accused has not pleaded guilty and claimed to be tried, the case was posted for complainant's evidence. The complainant in order to prove his case, got examined himself as P.W.1 and 14 documents got marked on his behalf and Ex.D.1 to Ex.D.5 on the side of accused through the P.W.1. He was thoroughly cross-examined by the advocate for the accused. Then this Court has recorded the accused No.1 statement U/sec 313 of Cr.PC. As the accused No.1 submitted that, he would adduce his (SCH-20) 6 CC 27408/11 defence evidence, the case was posted for defence evidence. Then accused No.1 himself got examined as D.W.1 and got marked documents at Ex.D.1(a) to Ex.D.5(a) and Ex.D.6 to Ex.D.13 on his behalf. He was thoroughly cross-examined by the advocate for the complainant. Then the case was posted for arguments. Thereafterwards, the written arguments filed by the counsels for complainant and the accused are taken into consideration. Now the case is for pronouncement of Judgment.
04. The counsel for the complainant has relied upon the following decisions:-
01. Criminal Revision Petition No.1351/2010
02. Criminal Revision Petition No.1237/2008
03. AIR 2010 Supreme Court 1898
05. The counsel for the accused has relied upon the following decisions:-
01. 1998 CRL. L.M. 906
02. 2009 CRL. L.M. 3777
03. 2014 CRL. R. 827 (SC)
04. CRL. M.C. No.2224/2009
05. LAWS (APH)-1997-2-1 (SCH-20) 7 CC 27408/11
06. MANU/KA/1758/2010
07. Indiankanoon.org/doc/1045261
08. AIR (37) 1950 Kutch 17
06. As already observed above, the complainant by name Mr.Satish Kumar.B filed this complaint against the accused by name Mr.Shivakumar.R, for the offence punishable U/sec 138 of N.I. Act. Here, the complainant filed his affidavit in lieu of his chief examination, in which he has reiterated all the averments made in the complaint itself. Further he has also produced 14 documents.
07. Ex.P.1 is the original Cheque alleged to be issued by the accused in favour of this complainant for a sum of Rs.22,00,000-00 dt:25-01-2011. Ex.P.2 is the Bank memo dt:10-03-2011, which is endorsed as "Funds Insufficient". Ex.P.3 is the original Cheque alleged to be issued by the accused in favour of this complainant for a sum of Rs.22,00,000-00 dt:05-02-2011. Ex.P.4 is the Bank memo dt:10-03-2011, which is endorsed as "Funds Insufficient". Ex.P.5 is the returned RPAD cover. Ex.P.6 is the office copy of Legal notice (SCH-20) 8 CC 27408/11 dt:26-03-2011 issued to the accused by the advocate of the complainant calling upon him to pay the cheques amount within 15 days from the date of receipt of the said notice. Ex.P.7 is the RPAD receipt. Ex.P.8 is the UCP receipt. Ex.P.9 is the Reply given by the accused on 07-04-2011. Ex.P.10 is the copy of the FIR. Ex.P.11 is the copy of the Complaint dt:20-10-2010 given by the accused to the Inspector of Banaswadi Police Station. Ex.P.12 is the Letter dt:28-08-2010 written by the accused to the complainant's letter dt:30-07-2010 by acknowledging the debt. Ex.P.13 is the Agreement executed in between the accused and the complainant, which is dt:12-06-2008. Ex.P.14 is the original Sale Deed dt:03-02-1992. These are all the documents on which the complainant has relied upon.
08. Here, as already observed above, the complainant case is that, as the accused was in good acquaintance with him for several years, he had approached him for the financial assistance of Rs.44,00,000-00 by agreeing to repay the same within 2 years with interest at 12% p.a. So, he had (SCH-20) 9 CC 27408/11 paid Rs.44,00,000-00 by cash on 12-06-2008 upon the accused executing an agreement dt:12-06-2008 in favour of the complainant.
09. Here, the defence of the accused is that, he has not at all availed financial assistance of Rs.44,00,000-00 from the accused. But he has availed only Rs.1,00,000-00 in the month of July 2007 and at that time, the complainant received signed blank papers in the year 2007 itself and he has not at all executed any agreement as said by the complainant, but the said agreement is a created document by the complainant by misusing the signatures put by the accused on the blank stamp papers. Moreover, the original title deed of the property kept as a security towards Rs.1,00,000-00 only in the year 2007. It is also his defence that, he has not at all written any letter on 28-08-2010 to the complainant & moreover, he has not at all issued any cheques for Rs.22,00,000-00 each to the complainant. He had issued blank cheques as a security at the time of availing Rs.1,00,000-00 in the month of July 2007.
(SCH-20) 10 CC 27408/11
10. Here, the complainant has been thoroughly cross-examined by the advocate for accused. He has filed his affidavit in lieu of his chief examination, in which he has reiterated all the averments made in the complaint itself. Further in the cross-examination he has deposed that, he is doing Real Estate business and he is also an Agent of Insurance Company. He gave Rs.44,00,000-00 to the accused in cash. He gave the said sum of Rs.44,00,000-00 at once. At the time of giving the said sum of Rs.44,00,000-00, the two friends of the accused were present. He also deposed that, he had that much of amount out of his business. Further, he has deposed as, "£À£Àß ªÁå¥ÁgÀ¢AzÀ §AzÀAvÀºÀ ºÀt CzÁVvÀÄÛ. CAzÀgÉ ¸Àé®à £ÀUÀzÀÄ EvÀÄ.Û ªÀÄvÀÄÛ G½zÀ ºÀtPÁÌV a£ÀßzÀ D¨ÀsgÀtUÀ¼À£ÀÄß CqÀªÀiÁ£ÀªÁV ElÄÖ ºÀt ¥ÀqÉzÀÄ £ÀAvÀgÀ PÉÆnÖzÉÝ. £Á£ÀÄ a£ÀßzÀ D¨ÀsgÀtUÀ¼À£ÀÄß CqÀªÀiÁ£ÀªÁV EnÖgÀĪÀ §UÉÎ zÁR¯ÁwUÀ¼À£ÀÄß ¨ÉÃPÁzÀgÉ ºÁdgÀÄ¥Àr¸À§¯É"è . As per his deposition, he gave this Rs.44,00,000-00 to the accused out of his income and also by pledging some gold ornaments. In this regard, the learned counsel for the accused (SCH-20) 11 CC 27408/11 vehemently argued that, can it be believable that, a person can give an amount of Rs.44,00,000-00 as a loan to any person by pledging gold ornaments?. Ofcourse, it is an acceptable argument. In order to give hand loan to any person, that too, an extent of Rs.44,00,000-00, can a person pledge his golden ornaments and then pay the amount?. Definitely, it is an unnatural thing to believe. In this regard the learned counsel for the accused has relied upon the decision reported in Crl. Appeal No.1371/2007 (B.Girish Vs S.Ramaiah) by the Hon'ble High Court of Karnataka, in which it is held as, "It is highly unnatural that, the complainant for the purpose of lending substantial sum of Rs.50,000-00 to the accused would borrow the same from others. No documentary evidence is produced by the complainant to show that he had borrowed money from the Credit Co-operative Society and others. Admittedly, the accused had no financial capacity to pay Rs.50,000-00 nor he had any savings. In the absence of any evidence placed by the complainant, it is highly difficult to believe that he had borrowed money from a Credit Co-operative Society and others for the purpose of lending the loan to the accused".
(SCH-20) 12 CC 27408/11
11. In this case also, though, in the complaint it is averred that, he gave the said sum of Rs.44,00,000-00 to the accused in cash, before the Court, in the cross-examination he has deposed that, he had some amount and he had pledged some gold ornaments and by obtaining the said amount he has handed over the same amount to the accused. Though, he has deposed that, he has document regarding pledging of gold ornaments, he has not produced any such document before the Court. Further, he has deposed on 16-01-2014 in his cross- examination as " a£ÀßzÀ D¨ÀsgÀtUÀ¼À£ÀÄß CqÀªÀiÁ£ÀªÁV ElÄÖ 6 ®PÀë gÀÆUÀ¼£À ÀÄß ¥Àq¢ É zÉÝ. ªÀÄvÀÄÛ £À£Àß §½AiÀÄ°è £ÀUÀzÀÄ 8 ®PÀë EzÀݪÀÅ. G½zÀ ºÀtªÀ£ÀÄß £Á£ÀÄ ªÀiÁqÀĪÀ ¸ÉÊmï ªÁå¥ÁgÀ¢AzÀ §A¢zÁÝVvÀÄ.Û F §UÉÎ £Á£ÀÄ AiÀiÁªÀÅzÉà zÁR¯ÁwUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¹®è." Thus, on 16-01-2014, there is an improvisation in his answer regarding the amount. On this 16-01-2014 he has deposed that, he had that much of amount, out of the site sold by him. Further he had received Rs.6,00,000-00 out of pledging the gold ornaments and he had Rs.8,00,000-00 with him. He gave these amounts to (SCH-20) 13 CC 27408/11 the accused. But regarding the selling of his site and obtaining cash amount, he has not at all produced any document. Further, on 23-04-2014 he has deposed in his cross-examination as, "a£ÀߪÀ£ÀÄß CqÀªÀiÁ£ÀªÁV ElÄÖ £Á£ÀÄ 8 ®PÀë gÀÆUÀ¼£À ÀÄß ¥ÀqÉ¢zÉ.Ý G½zÀ ºÀtªÀ£ÀÄß £Á£ÀÄ £À£Àß ¸ÉÊmï ©¹£É¸ï¤AzÀ §AzÀAvÀºÀ ºÀt ªÀÄvÀÄÛ £À£Àß PÉÊAiÀÄ°èzÀÝ ºÀt ¸ÉÃj¹ PÉÆnÖzÉÝ. F ºÀtªÀ£ÀÄß £À£Àß CzÁAiÀÄ vÉjUÀÉAiÀÄ jl£ïð죰 À è vÉÀÆÃj¹®è". So, on this 23-04-2014, he has deposed that, he has obtained Rs.8,00,000-00 from pledging the gold ornaments and the remaining, out of the selling of site & the remaining was in his hand. This Court has observed that, on 16-01-2014 he has deposed that, out of pledging the gold ornaments he has obtained Rs.6,00,000-00. But on 23-04-2014 he has deposed that, out of pledging the gold ornaments, he has obtained Rs.8,00,000-00. But regarding the pledging the gold ornaments, he has not at all produced any document. Moreover, this Court has observed many contradictions regarding the amount through which he has obtained i.e., Rs.44,00,000-00, in his cross- examination as observed above. Moreover, it is (SCH-20) 14 CC 27408/11 highly unnatural that, by pledging gold ornaments, can any person give hand loan to another person, that too, an extent of Rs.44,00,000-00.
12. Further, he has deposed that, he is doing Real Estate business and he is also an Insurance Company Agent. But regarding his business, he has not all produced any document. On 18-11-2013 he has deposed as, "£Á£ÀÄ DzÁAiÀÄ vÉjUÉAiÀÄ£ÀÄß PÀlÄÖvÉÃÛ £É. PÀ¼ÉzÀ 2 ªÀµÀðUÀ½AzÀ ªÁå¥ÁgÀzÀ°è £ÀµÀÖ EgÀĪÀÅzÀjAzÀ Income tax returns £ÀÄß ¸À°è¸ÀÄwÛ®.è £Á£ÀÄ FUÁUÀ¯Éà ¸À°¹è gÀĪÀAvÀºÀ IT returns £ÀÄß ºÁdgÀÄ¥Àr¸À§¯Éè". But he has not all produced his income tax returns before this Court. Moreover, on 23-04-2014 he has deposed as, "F ºÀtªÀ£ÀÄß £À£Àß CzÁAiÀÄ vÉjUÀÉAiÀÄ jl£ïðì£À°è vÉÀÆÃj¹®è". So, he has not produced his income tax returns before this Court. In this regard the learned counsel for the accused has relied upon the decision of Hon'ble High Court of Andhra Pradesh reported in ALT (CRI)-1997-2-100/ALD (CRI) -1997-1-940, in which the Hon'ble High Court of Andhra Pradesh has observed as, "While admitting that he is an income tax assessee he stated that this amount (SCH-20) 15 CC 27408/11 was not shown in the income tax returns. For all these reasons the trial Court disbelieved the evidence of the P.W.1 and held that there is no legally enforceable liability by the accused to the petitioner herein and accordingly, the complaint was dismissed".
13. Moreover, he has not at all produced his Bank statement to show that, he had Rs.8,00,000-00 or Rs.6,00,000-00 with him. Further, he has deposed in his cross-examination on 16-01-2014 at page No.11 as, "£Á£ÀÄ §rØUÁV ºÀtªÀ£ÀÄß PÉÆqÀÄvÉÃÛ £É J£ÀÄߪÀÅzÀÄ ¸Àj. ±ÉÃPÀqÁªÁgÀÄ §rØAiÀÄ£ÀÄß £Á£ÀÄ D ªÀåQÛAiÀÄ£ÀÄß £ÉÆÃr ºÁPÀÄvÉÛãÉ.
£Á£ÀÄ DgÉÄÁæUÉ ±ÉÃPÀqÁ 2gÀ §rØAiÀÄAvÉ ºÀtªÀ£ÀÄß PÉÆnÖzÉ.Ý
£Á£ÀÄ ºÀtªÀ£ÀÄß §rØUÁV PÉÆqÀ®Ä AiÀiÁªÀÅzÉà jÃwAiÀÄ
¥ÀgÀªÁ¤UÉAiÀÄ£ÀÄß ¥Àq¢
É ®è. PÀµÀÖ JAzÀÄ §gÀĪÀªÀjUÉ £Á£ÀÄ
§rØAiÀÄ ªÉÄÃ¯É ¸Á® PÉÆqÀÄvÉÃÛ £É CµÀÖÉÃ". At first, in his cross-examination he has deposed that, he is doing Real Estate business and he is also an Insurance Agent. Further, he has deposed that, he also lend money for interest. To that aspect, he has not obtained any licence. He has clearly deposed that, by seeing the person, he charges interest. (SCH-20) 16 CC 27408/11 Moreover, he charge 2% interest to the amount lent by him to the accused. But in the complaint it is very clearly averred as, "..........agreeing to repay the same within 2 years, interalia agreeing to pay the interest at the rate of 12% p.a.". Then, which statement/averment of the complainant has to be believe/considered by this Court?. Moreover, when this complainant has been dealing with many business and doing so many activities, he is not at all filing his income tax returns. Moreover, he has not at all shown this amount of Rs.44,00,000-00 in his income tax returns. Regarding this aspect, the learned counsel for the accused relied upon the decision reported in 2009 CRL. LJ 3777............
"(B) N.I. Act (26 of 1881), Ss.138, 139 -
Dishonour of cheque - Presumption as to issuance of cheque in discharge of legally enforceable debt - Amount advance by complainant to accused was unaccounted cash amount - It was not disclosed in Income Tax Return - Liability to repay unaccounted cash amount cannot be said to be legally enforceable liability within meaning of explanation to S.138 -
Acquittal of accused proper".
(SCH-20) 17 CC 27408/11
14. The Hon'ble Bombay High Court has clearly held that, at no stretch of imagination it can be stated that, liability of repay unaccounted cash amount is a legally enforceable liability within the meaning of explanation to S.138 of N.I. Act. The alleged debt cannot be said to be a legally recoverable debt. The applicant has failed to establish that, the cheque was issued towards the discharge of a legally recoverable debt is correct.
15. The above ratio aptly applicable to the present case on hand. Here also, the amount with the complainant definitely an unaccounted cash amount. Because though, he has deposed that, he has been doing so many business, he is not filing his income tax returns. He has not shown the amount of Rs.44,00,000-00 in his income tax returns. He has not at all produced his bank statement account. Pleading of gold ornaments and paying the same to any person as a hand loan is highly unnatural and highly unbelievable one. Hence, definitely in view of the above cited decision, the amount of (SCH-20) 18 CC 27408/11 Rs.44,00,000-00 cannot be considered as legally enforceable liability within the meaning of Sec.138 of N.I. Act.
16. Moreover, here, it is important to note that, this complainant himself has produced the Ex.P.10 i.e., the FIR. The complaint given by the accused against this complainant stating that, though accused has received loan of Rs.13,86,150-00 from the complainant and paid Rs.10,05,000-00, but still the complainant is asking for interest amount of Rs.40,73,447-00 and in that regard, on 20-10-2010 at about 12.55 p.m. the complainant with his men entered into the office of the accused and abused in filthy language to the sister of the accused and also the employee who were in the office and also threatened to close the office in case the interest will not be paid by the accused. The Ex.P.11 is the Complaint given by the accused against the complainant. Regarding this complaint and the FIR, the accused has deposed in his cross-examination as, " ¤¦ 11gÀ°è £Á£ÀÄ ¦gÁåzÀÄzÁgÀjAzÀ 13,86,150-00 gÀÆUÀ¼À£ÀÄß ¥ÀqÉ¢zÉÝ JAzÄ w½¹zÉÃÝ£É J£ÀÄߪÀÅzÀÄ ¸Àj. ¤¦ (SCH-20) 19 CC 27408/11 11gÀAvÉ ¦gÁåzÀ£ÀÄß ¥ÉÇð¸ï oÁuÉUÉ ¤ÃrzÀ £ÀAvÀgÀ, ¤¦ 9gÀAvÉ £Á£ÀÄ ¦gÁåzÀÄzÁgÀgÀ £ÉÆÃnùUÉ GvÀgÛ ÀªÀ£ÀÄß ¤ÃrgÀÄvÉÃÛ £É J£ÀÄߪÀÅzÀÄ ¸Àj. ¸ÀzÀj ¤¦ 9gÀ°è, ¦gÁ墣À°è w½¹zÀ «µÀAiÀÄ CAzÀgÉ 13,86,150-00 gÀÆUÀ¼À ¨Á§ÄÛ K£À£ÀÆß w½¹®è J£ÀÄߪÀÅzÀÄ ¸Àj. ¤ÃªÀÅ 44 ®PÀë gÀÆUÀ¼À£ÀÄß ¦gÁåzÀÄzÁgÀjUÉ PÉÆqÀ¨ÉÃPÁVzÀÄÝzÀÝjAzÀ, D ¨Á§iÛ ¸ÀzÀj «µÀAiÀĪÀ£ÀÄß ¤ÃªÀÅ ¤ÃrzÀ GvÀgÛ À ¤¦ 9gÀ°è w½¹gÀĪÀÅ¢®è JAzÀÄ ªÀiÁrzÀ ¸À®ºÉUÉ ¸ÁQë, ¤¦ 9gÀ°è CzÀ£ÀÄß 'C®èUɼ¢ É ÝzÉÃÝ £É' J£ÀÄßvÁÛgÉ. ¤¦ 11gÀ°è, ¤ÃªÀÅ, ¦gÁåzÀÄzÁgÀgÀÄ 40,73,447-00 gÀÆUÀ¼À£ÀÄß PÉüÀÄwÛzÀÄÝ, 25,18,477-00 gÀÆ §rØAiÀÄ£ÀÄß ºÁQgÀÄvÁÛgÉ, CzÀgÀ°è 10,05,000-00 »ÃUÁUÀ¯Éà PÉÆnÖgÀÄvÉÛÃ£É JAzÀÄ w½¹gÀÄwÛÃj JAzÀÄ ªÀiÁrzÀ ¸À®ºÉUÉ ¸ÁQë, ºËzÀÄ J£ÀÄßvÁÛg.É £Á£ÀÄ ¤ÃrzÀAvÀºÀ ¦gÁåzÀÄ ¸ÀļÁîVgÀÄvÀÛzÉ JAzÀÄ ¥ÉÇð¸ÀgÀÄ © CAwªÀÄ ªÀg¢ À AiÀÄ£ÀÄß ¸À°è¹gÀĪÀ «µÀAiÀÄ £À£U À É UÉÆwÛ®è.". Thus, this accused has admitted the lodging of complaint by him against the complainant & its contents. But the contention of the complainant is that, the Police have filed 'B' report with respect to the complaint lodged by the accused. It is very pertinent to note, when this complainant has produced the FIR (Ex.P.10) & the Complaint (Ex.P.11) given by this accused against him, what prevented him in not (SCH-20) 20 CC 27408/11 producing the 'B' report filed by the Police in respect of that Complaint. Moreover, this Court has observed very keenly that, in this complaint dt:20-10-2010 (i.e., before issuance of Notice to the accused), in this complaint it is clearly complained that, he has borrowed Rs.13,86,150-00 & has paid Rs.10,05,000-00 to the complainant. But the complainant is harassing to pay Rs.40,73,447-00 & the interest amount itself is Rs.25,18,477-00 which is very very exorbitant and he has already given to property documents to the complainant. This is averred in the complaint given by the accused. Before the Court also the accused has submitted that, he has already paid Rs.10,05,000-00 out of Rs.13,86,150-00, but still the complainant asking for the interest amount of Rs.25,18,477-00, even by retaining his property documents. At this juncture, it is necessary to know the answer given by the complainant in his cross- examination on 16-01-2014 as, "£Á£ÀÄ §rØUÁV ºÀtªÀ£ÀÄß PÉÆqÀÄvÉÛÃ£É J£ÀÄߪÀÅzÀÄ ¸Àj. ±ÉÃPÀqÁªÁgÀÄ §rØAiÀÄ£ÀÄß £Á£ÀÄ D (SCH-20) 21 CC 27408/11 ªÀåQÛAiÀÄ£ÀÄß £ÉÆÃr ºÁPÀÄvÉÃÛ £É. £Á£ÀÄ DgÉÄÁæUÉ ±ÉÃPÀqÁ 2gÀ §rØAiÀÄAvÉ ºÀtªÀ£ÀÄß PÉÆnÖzÉÝ. £Á£ÀÄ ºÀtªÀ£ÀÄß §rØUÁV PÉÆqÀ®Ä AiÀiÁªÀÅzÉà jÃwAiÀÄ ¥ÀgÀªÁ¤UÉAiÀÄ£ÀÄß ¥Àq¢ É ®è. PÀµÀÖ JAzÀÄ §gÀĪÀªÀjUÉ £Á£ÀÄ §rØAiÀÄ ªÉÄÃ¯É ¸Á® PÉÆqÀÄvÉÛÃ£É CµÀÖÃÉ ". That means, he is lending money on interest. Moreover, he charges interest by seeing the person. That's the reason he has charged interest to the extent of lakhs together on this accused, who is M.Sc., graduate and borrowed money to develop his business. Moreover, it is very important to note that, without having any licence, this complainant has been doing this money lending business also with his other business i.e., Real Estate business, Insurance Agent business etc.,. At this juncture, it is very important go through the documents produced by the accused. Ex.D.1 to Ex.D.8 are the original Cash/Cheque Vouchers signed by this complainant. Actually, these vouchers are marked through the complainant himself as he has identified his signatures on these vouchers. The signatures of the complainant got marked as Ex.D.1(a) to Ex.P.8(a). These cash vouchers are (SCH-20) 22 CC 27408/11 admitted by the complainant in his cross- examination. Ex.D.1 is for Rs.1,00,000-00 received by the complainant on 03-05-2010. Ex.D.1 is for Rs.95,000-00 received by the complainant on 24-03-2010. Ex.D.3 is for Rs.1,20,000-00 received by the complainant on 04-11-2009. Ex.D.4 is for Rs.30,000-00 received by the complainant on 02-11-2009. Ex.D.5 is for Rs.95,000-00 received by the complainant on 30-03-2010. Ex.D.6 is for Rs.10,000-00 received by the complainant on 01-09-2009. Ex.D.7 is for Rs.2,00,000-00 received by the complainant on 20-09-2008. Ex.D.8 is for Rs.2,00,000-00 received by the complainant on 13-07-2009. Thus, as per these cash vouchers, the complainant has received Rs.8,36,000-00 from the accused on various dates towards the loan amount of Rs.13,86,150-00 received by the accused. Regarding the balance amount he has deposed in his chief examination as, "I have transferred Rs.1,55,000-00 from my account to the account of complainant during the said period only.............. I have paid 11 installments amounts of (SCH-20) 23 CC 27408/11 Rs.10,05,000-00. I have not repaid the balance amount of Rs.3,86,000-00". Thus, the accused has admitted before the Court that, he has to pay Rs.3,86,000-00 to the complainant. Moreover, this thing has been mentioned in the complaint lodged by the accused. In the complaint itself he gave reason for not paying the balance amount of Rs.3,86,000-00 as, "Sir, I had two operations in the last 10 months and that is the reason I am not able to pay him back". This is stated in the complaint itself. Thus, these things clearly reveal that, this complainant is an unauthorized money lendor having unaccounted amount with him.
17. Further, it is very important to note, the complainant also produced one document as, "Agreement", which is marked as Ex.P.13. The complainant say is that, at the time of giving Rs.44,00,000-00 to the accused, the accused has executed this agreement in his favour. But in the reply notice itself, the accused has stated that, while availing loan of Rs.1,00,000-00, he gave signed blank paper and signed cheques. This agreement has (SCH-20) 24 CC 27408/11 been created by the complainant. Here, this Court has observed one thing that, some transaction took place in between the complainant and the accused. This has been admitted by the accused himself in his chief examination, "The transaction in between us took place from 23-07-2007 to 16-10-2008. Total 17 transactions took place in between us. And total amount for these transactions was Rs.13,66,150-00". This Court has observed and also it can infer and also take the judicial notice of the facts that, in these 17 transactions, the complainant has received all types of signed papers, signed cheques, signed letterheads, property documents etc.,. Here, it is very important to note, the complainant has admitted that, without any licence he is doing Real Estate business, Money lending business etc.,.
18. When this Court has gone through this Ex.P.13, it can be said without any hesitation, by going through the signatures put by the accused at the end, at the corner side of all the pages on this Ex.P.13, definitely, it is a created document. As (SCH-20) 25 CC 27408/11 rightly taken contention by the accused that, he gave signed blank papers, the said signed blank papers have been misused by this complainant in this way by creating this Ex.P.13. Any Court can hold without any hesitation that, this is a concocted document. Ofcourse, it is signed by two witnesses by name A.George and Alexander. But these witnesses have not been examined before this Court for the best reasons known to the complainant. When the complainant has relied upon this document as a prime document, he has not examined the witnesses. If at all, he had got examined the said witnesses also, it can be said without any hesitation that, it is a concocted document by seeing the signatures put by this accused on all pages (At the corner end of all the pages).
19. Further, this complainant has also obtained the property document i.e., the Sale Deed which is marked as Ex.P.14. Regarding this receival of document by the complainant, the accused has stated the said thing in the complaint given by him to the concerned Police Station as, "I have already (SCH-20) 26 CC 27408/11 given him my property document". Regarding this property document, the advocate for complainant has suggested that, by receiving Rs.44,00,000-00 from the complainant, the accused has executed a Sale Agreement in favour of the complainant. He has deposed that, "£Á£ÀÄ 44 ®PÀë gÀÆUÀ¼À£ÀÄß ¦gÁåzÀÄzÁgÀjAzÀ ¸Á®ªÁV ¥Àq¢ É zÀÝjAzÀ £À£Àß ¹ÝgÀ D¹ÛAiÀÄ ¨Á§ÄÛ zÁR¯ÁwUÀ¼£À ÀÄß ¦gÁåzÀÄzÁgÀjUÉ PÉÆlÄÖ PÀgÁgÀ£ÀÄß ªÀiÁrPÉÆArgÀÄvÉÛÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. £Á£ÀÄ ªÀiÁrPÉÆnÖgÀĪÀÅzÀÄs sale agreemnet". But the said Sale Agreement has not been produced by the complainant before this Court.
20. Further the complainant also produced Ex.P.12 i.e., Letter written by this accused to the complainant dt:28-08-2010. But the defence of the accused in his Reply notice itself that, he has not at all written any letter to the complainant. He has denied this Ex.P.12. But admitted his signature on it. His say is that, the complainant being an Insurance Agent, he has obtained his letterhead. The said letterhead has been misused in this way. Regarding (SCH-20) 27 CC 27408/11 these facts, the accused in his chief examination itself has deposed as, "The complainant used to come to me for getting insurance policies. He also used to offer short terms loans for my business and for the insurance policies. My employees were also covered in the said insurance. The complainant was an agent for LIC and United India Insurance". That means, his employees were also covered by the complainant by issuing insurance policies. Further, in his cross- examination at page No.5 deposed as, "¯Élgï ºÉqï £À£ÀßzÉÃ. DzÀgÉ CzÀg° À è EgÀĪÀ «µÀAiÀÄUÀ¼À£ÀÄß §gÉ¢gÀĪÀªÀ£ÀÄ £Á£À®è. CzÀÀgÀ ªÉÄðgÀªÀ ¸À» ¤ªÀÄäzÝÉà JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQë F §UÉÎ £À£ÀUÉ ¸ÀjAiÀiÁV UÉÆwÛ®è J£ÀÄßvÁÛgÉ. ¤ªÀÄä ªÀÄÄRå «ZÁgÀuÉAiÀÄ°è ¤ÃªÀÅ ¸ÀzÀj ¯Élgï ºÉqï £À£ÀßzÉà ªÀÄvÀÄÛ CzÀPÉÌ ¸À» ºÁQ PÉÆnÖgÀÄwÛä JAzÀÄ w½¹gÀÄwÛÃj JAzÀÄ ªÀiÁrzÀ ¸À®ºÉUÉ ¸ÁQë, CzÀ£ÀÄß £Á£ÀÄ E£ï±ÉÆgÀ£ïì purpose UÁV ¤ÃrzÉÝ J£ÀÄßvÁÛgÉ". This Court gone through the contents of this letter dt:28-08-2010. It is typed as, the accused is issuing two cheques for Rs.22,00,000-00 each dt:25-01-2011 & 05-02-2011 towards the discharge of the liability of principal amount. It is (SCH-20) 28 CC 27408/11 also stated that, he is very grateful for the timely financial assistance extended by the complainant. But the accused has denied this letter. When the accused has lodged a complaint before the Police Station complaining that, he has borrowed Rs.13,86,150-00 and he has paid Rs.10,05,000-00, the complainant is harassing him to pay Rs.40,73,447-00 out of which the interest itself is Rs.25,18,477-00, can it be believable or acceptable that, he had issued the said two cheques for Rs.22,00,000-00 each?. That's why, in the earlier paragraphs itself this Court has observed that, during the transactions in between the accused and the complainant, the complainant has obtained all the necessary signed blank papers, signed blank cheques, signed letterheads etc., and misused the same in this way. Definitely, it can be said without any hesitation, it is a concocted transaction. The complainant filed the present complaint with all concocted documents.
(SCH-20) 29 CC 27408/11
21. At this juncture, it is also necessary to go through the citations filed by the advocate for complainant. He has relied upon the Judgment passed in Criminal Revision Petition No.1351/2010 by the Hon'ble High Court of Karnataka, in which the Hon'ble High Court of Karnataka has held, "It looks improbable that an educated person would issue signed blank cheque for securing loan as he was aware of consequences of issuing blank signed cheques". Ofcourse, in this case this accused is an M.Sc., graduate and doing business in the name and style as "SYSCON". So, the complainant's advocate argued that, can such a person issued signed blank cheque, signed blank paper etc.,. But the accused himself has admitted that, there were nearly 17 transactions took place in between them. Moreover, the complaint reveal that, "in order to develop his business", he had approached him. Thus, though, this accused being an educated one, in order to improve and develop his business, he had borrowed loan by giving all the above papers, cheques etc.,. (SCH-20) 30 CC 27408/11
22. Further, the advocate for complainant also relied upon the decision reported in AIR 2010 SC 1898, in which it is held as, "Existence of legally recoverable debt or liability is a matter of presumption U/sec 139". The advocate for complainant also knew that, this presumption is a rebuttable presumption. The accused entered into the witness box and produced the necessary documents and also cross-examined the P.W.1 in length and proved that, the complainant was/is doing illegal money lending business. He is not at all filing income tax returns nor shown this Rs.44,00,000-00 in his IT returns. He has not at all produced the bank statement. The amount which he has alleged to be paid to the accused was an unaccounted amount. Such type of amount paid to any person cannot be considered as legally enforceable debt (discussed above).
23. Thus, in this case, it can be held without any hesitation, this complainant has been doing many business illegally without obtaining any licence from the concerned authority. He has been lending money (SCH-20) 31 CC 27408/11 to the public and charging interest by seeing the person and extracting amount from the persons who were badly in need of money. So, the amount given by the complainant cannot be considered as a legally enforceable debt at all. Moreover, definitely he has not at all lent Rs.44,00,000-00 to the accused.
24. Thus, by going through all the materials on record, it can be held without any hesitation that, the complainant has failed to prove that, the accused has committed an offence punishable U/sec 138 of N.I. Act. Hence, in the result, I proceed to pass the following:
O R D E R The complaint filed by the complainant is hereby dismissed.
The accused is acquitted U/Sec 255(1) of Cr.P.C for the offence punishable U/Sec 138 of N.I. Act.(SCH-20) 32 CC 27408/11
The bail bonds of accused hereby stands cancelled.
(Dictated to the Stenographer, transcribed by him, corrected by me and then pronounced in open court on this day of 31st March 2015) (K.BHAGYA) V ASCJ & XXIV ACMM, Court of Small Causes, Mayo Hall Unit, Bangalore.
Annexures Witnesses examined for Complainant:
P.W.1 Satish Kumar.B
Documents marked for Complainant:
Ex.P.1 original Cheque for Rs.22,00,000-00
dt:25-01-2011
Ex.P.2 Bank memo dt:10-03-2011
Ex.P.3 original Cheque for Rs.22,00,000-00
dt:05-02-2011
Ex.P.4 Bank memo dt:10-03-2011
Ex.P.5 returned RPAD cover
Ex.P.6 Legal notice dt:26-03-2011
Ex.P.7 RPAD receipt
(SCH-20) 33 CC 27408/11
Ex.P.8 UCP receipt
Ex.P.9 Reply given by the accused
Ex.P.10 copy of the FIR
Ex.P.11 copy of the Complaint dt:20-10-2010 given by the accused to the Inspector of Banaswadi Police Station Ex.P.12 Letter dt:28-08-2010 written by the accused to the complainant by acknowledging the debt Ex.P.13 Agreement executed in between the accused and the complainant, dt:12-06-2008 Ex.P.14 original Sale Deed dt:03-02-1992 Witnesses examined for defence:
D.W.1 Shivakumar.R
Documents marked for defence:
Ex.D.1 to
Ex.D.5 copies of Cash/Cheque Vouchers given by
the accused to the complainant
Ex.D.1(a) to
Ex.D.5(a) &
Ex.D.6 to
Ex.D.8 original Cash/Cheque Vouchers given by
the accused to the complainant
Ex.D.9 to
Ex.D.12 Income Tax returns of the accused for
the year 2008-09, 2009-10, 2010-11 & 2011-12.(SCH-20) 34 CC 27408/11
Ex.D.13 Internet copies of Bank account of the accused from January 2008 to April 2011.
(K.BHAGYA) V ASCJ & XXIV ACMM, Court of Small Causes, Mayo Hall Unit, Bangalore.