Bangalore District Court
Venkatesh.V vs M.Arjunan on 4 March, 2021
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 4th day of March - 2021
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.3482/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Venkatesh.V,
S/o.Late.Venkataswamappa,
Aged about 49 years,
R/at No.26, 9th D Main,
Pipeline, Viyayanagara,
Bengaluru-40.
(Rep. by Sri.Ramesh Adithya, Adv.)
V/S
Accused : M.Arjunan,
S/o.Manikyam,
Aged about 32 years,
No.S-31, 2nd Cross,
Karumariyamma Layout,
Valagerahalli, Jnanabharathi 1st Block,
Bengaluru-59.
(Rep.by Sri.Shivakumar, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 04.03.2021.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.3482/2018
JUDGMENT
The complainant has presented the instant complaint against the accused on 11.01.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.9,50,000/-.
2. The facts given raised to this private complaint are as follows:
The complainant has pleaded that, the accused is his good friend and on 30.06.2014, he borrowed a hand loan of Rs.9,50,000/- from the complainant and agreeing to repay the same with interest at the rate of 18% p.a. The accused had borrowed the said loan for meet out his necessity and facing monetary constraints as well as his legal necessities and business purpose. The accused had assured to repay the same with interest within a short period of time.
The complainant has averred that, in spite of repeated requests and demands made by him, the accused had not repaid the said loan borrowed by him and had been postponing the repayment on the one or other pretext. Finally, when the complainant had strictly demanded for its repayment, towards the repayment of said loan, the accused got issued a cheque bearing No.681071 for sum of Rs.9,50,000/- drawn on the then State Judgment 3 C.C.No.3482/2018 Bank of Mysore, Rajajinagar Branch, Bengaluru. Even he further requested the complainant to present the said cheque for encashment on the date made mentioned therein.
The complainant has further alleged that, on the request and assurance made by the accused, he presented the said cheque for encashment through his banker viz., K.S.C. Apex Bank Ltd., Magadi Road Branch, Bengaluru on 30.10.2017. The same came to be dishonoured as per the endorsement dated:31.10.2017 for the reasons "Funds Insufficient". Thereafter, the complainant had personally approached and informed to the accused regarding the same, but he evaded to pay the cheque amount. Hence, on 30.11.2017 he got issued legal notice to the accused by way of R.P.A.D., it was returned stating 'intimation delivered not claimed' . Since, the accused has not paid the cheque amount within the stipulated period of 15 days nor caused any reply. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, this court has took the cognizance and got registered the PCR and recorded the sworn Judgment 4 C.C.No.3482/2018 statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P12. The PW.1 tendered for partly cross-examination and when the case stage was set for further cross-examination of PW.1, despite given sufficient opportunities, he himself not tendered for further cross- examination. Thereby, further cross-examination from the side of complainant was taken as nil. In the cross-examination of PW.1, accused counsel got confronted three documents and same are marked as Exs.D1 to D3.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by him was recorded. In this case, the accused not choosen to enter into witness box.
Judgment 5 C.C.No.3482/2018
7. Accused counsel has submitted his detailed written arguments, apart from adduced oral arguments. Complainant counsel has not addressed his side arguments. Inspite of given liberty to file his written arguments, but complainant counsel has not submitted his written arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.9,50,000/- on 30.06.2014 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.681071, dated:02.08.2017 for sum of Rs.9,50,000/- drawn on the then State Bank of Mysore, Rajajinagar Branch, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
Judgment 6 C.C.No.3482/2018
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P12, they are:
a) Ex.P1 is the cheque bearing No.681071 issued by the accused for sum of Rs.9,50,000/-
dated:02.08.2017, drawn on the then State Bank of Mysore, Rajajinagar Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:31.10.2017.
d) Ex.P3 is the Legal Notice dated:30.11.2017.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the not claimed R.P.A.D cover.
g) Ex.P5(a) is the legal notice at Ex.P5.
h) Ex.P6 is the private complaint.
i) Ex.P6(a) is the signature of complainant.
j) Exs.P7 and P8 are the bank account passbooks pertaining to the complainant herein, issued by the Bank of India and Shree Subramanyeshwara Co-
operative Bank Ltd,. and
k) Exs.P9 to P12 are the letter head bills pertaining to Srinivasa Engineering Works and Navashakthi Rolling Shutters.
Judgment 7 C.C.No.3482/2018
11. The PW.1 tendered for partly cross-examination and when the case stage was set for further cross-examination of PW.1, despite given sufficient opportunities, he himself not choosen to tendered for further cross-examination. Thereby, further cross- examination from the side of complainant was taken as nil.
12. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and gave his statement that:
"ನನನ ಪರರದಯಯದ 2014 ರಲ ರರರ50,000/- ಸಲ ಪಡದಗ, ಆತನನ ನನನಯದ ಸಹ ಮಡದ 2 ಖಲ ಚಕನ ಕ ಗಳನ, 2 ಖಲ ಪಪಮಸರ ನರನಟಗಳನ, 2 ಖಲ ಛಪ ಕಗದಗಳಗ ನನನ ಸಹಯನನ ನ ಮತನತ ದ , 2015-16 ರಲ ಮರಳಸರನತತನನ.
ಮನಯ ದಖಲಗಳರಯದಗ ಪಡದದನ
ನ ನನನ ಬಡಡಯಯದಗ ಪವತಸದದರರ, ದಖಲಗಳನನ
ಸದರ ಹಣವನನ ನ
ಮರಳಸನವಯತ ಸಕಷನ
ಷ ಬರ ಕನಳದನ, ಇಯದನ, ನಳ ನನಡನವದಗ
ಹನಳ, ಸನಳನ
ಳ ಮತತ ಭತರ ಮಡ, ಈ ಪಪಕರಣ ದಖಲಸದರ. ಚಕನ
ಕ ಗಳ
ಮತತ ನನಡಲನ ನನನ ಭದದನಲಲ. ನನನ ಪರರದಯ ಮನಗ
ಸಯಟಪಯಗಕಲಸ ಕರಡ ಮಡಕರಟಷದನ."
13. In order to prove the defence of the accused, the accused not choosen to enter into witness box, but In the cross- examination of PW.1, accused counsel got confronted three documents and same are marked as Exs.D1 to D3. They are:
Judgment 8 C.C.No.3482/2018
a) Ex.D1 is the certified copy of order sheet in C.C.No.16765 of 2018 on the file of this court, the complainant herein has also lodged a private complaint against one Smt.Bharathi.V and another.
b) Ex.D2 is the certified copy of private complaint lodged by complainant herein against one B.S.Anand Kumar in P.C.R.No.6059 of 2018 on the file of this court and
c) Ex.D3 is the certified copy of Judgment in C.C.No.9166 of 2016, in the said case the accused therein was acquitted.
14. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheque at Ex.P1. Therefore, it needs to draw the presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is prove, the holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheque was drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge Judgment 9 C.C.No.3482/2018 of existence of legally recoverable debt, the accused got issued the Ex.P1-cheque unless and until contrary prove. Therefore, as per those sections, it made clear that, it is the initial onus on the accused to prove his case based on the principles of 'Preponderance of Probabilities'.
It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also it was pleased to observed that, the accused can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, he relies could bare Judgment 10 C.C.No.3482/2018 denial of passing consideration apparently does not appears to be any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to observed that, mere denial of issuing cheque, whether is sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial of issuing cheques would not be sufficient as it is time and again noted that, once the cheque issued duly signed by the accused, the presumption goes against him as per Section 139 of Negotiable Instruments Act.
Judgment 11 C.C.No.3482/2018
15. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, guilt of accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the materials brought on record by parties, but also by reference to the circumstances upon which he relies.
16. On going through the above authorities as well as dictums, it made clear that, it is the initial burden on the accused to prove his probable defence in order to rebut the statutory presumption as well as the case put forth by the complainant.
However, it is an appropriate to cite the decisions of the Hon'ble Supreme Court in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s. Dattatraya G Hegde) and 2010 AIR SCW 2946 (Rangappa V/s. Mohan).
"The accused need not enter into witness box and he could rebut the presumption envisage under Section 139 of Negotiable Instruments Act by setting up a probable case. As such, there is no strict rule that, the accused should enter into the witness box in support or proof of his defence. The accused has got every right to prove his defence from the cross-
Judgment 12 C.C.No.3482/2018 examination of PW.1 or the materials already brought on record. It is also held that, the standard of evidence be to led by the accused is preponderance of probabilities and no proof beyond reasonable doubt. On the contrary, for the complainant he should prove his case beyond all reasonable doubt".
17. As per the said dictum, the accused need not require to enter in to the witness box to prove his probable defence, but he can prove his defence by way of cross-examining the PW.1 and relied upon the documents of the complainant. From the point of above dictum, the non entering into the witness box by the accused is not a ground or hindrance to his probable defence. Therefore, whatever the defence placed by the accused by way of oral say through PW.1 is to be appreciated.
18. On going through the defence placed by the accused at the time of record 313 of Cr.P.C. statement, it is his specific defence that, during 2014 he borrowed the loan of Rs.50,000/- from the complainant herein on the security of 2 signed blank cheques, 2 signed On demand promissory notes, 2 signed blank stamp papers along with his house property documents. More particularly, the accused has stated that, during 2015-16 the said loan was repaid with interest, despite, he requested the complainant on several times to return those security documents, Judgment 13 C.C.No.3482/2018 though he assured to return the same, but by filling the false amount in the cheque and filed the false case. The accused also did centering work to the house of complainant. Therefore, he is not liable to pay the amount covered under the cheque.
19. No doubt, whatever the statement given by the accused, his defence as of him, before the accused placed those defence to the PW.1 in the subsequent cross-examination the PW.1 has ran away from the witness box, thereby, whatever the statement given by the accused by way of placing his defence remains unchallenged. Thereby, whatever the defence statement given by the accused, is the probable defence of the accused, which goes to the route of the case of complainant, therefore, other than the loan of Rs.50,000/- as stated by the accused, the alleged complaint loan transaction between complainant and accused creates doubt, in view of the accused has strongly denied the very loan transaction.
20. That apart, the accused also took upon the defence that, legal notice was not served on him. Thereby, whatever the said evidence packed through the statement of accused, is remains undisputed, as the PW.1 voluntarily declined to tender for further cross-examination. That apart, it also needs to appreciate the Judgment 14 C.C.No.3482/2018 defence taken by the accused while cross-examining the PW.1. From the point of above said statement given by the accused, as to the borrowal of loan of Rs.50,000/- in the year 2014 on the security of 2 signed blank cheques and other signed blank documents is to be seen from the evidence of PW.1.
21. During the course of cross of PW.1, he categorically admitted that:
"ಆರರನಪ ಮದಲನ 3-4 ಬರ ಗರಷಷ ರರರ1,00,000/- ದವರಗರ ನನನಯದ ಸಲವನನ ನ ಪಡದನ ಮರಳಸದ ಕರಣ, ಆ ಭರವಸಯ ಮನಲಯನ ಆತನಯದ ರವದನ ದಖಲಗಳನನ ನ ಪಡಯದ ರರರ9,50,000/- ಸಲವನನ ನ ಕರಟಷದನ. ಆ ವಷಯ ಈ ಮದಲನ ತಳಸಲಲ."
22. On close perusal of the said testimony of PW.1, he categorically admitted that, earlier the accused was borrowed the loan up to Rs.1 lakh about 3 - 4 times and accused got repaid the said loans. Therefore, he projected without securing any security documents, he lent loan of Rs.9,50,000/- to the accused and the said factum was not whispered in his pleading. Since the PW.1 has failed to demonstrate that, exactly on which occasions earlier up to Rs.1 lakh loan more than 3 - 4 times the accused had borrowed is not been proved by the complainant, but the said Judgment 15 C.C.No.3482/2018 clear cot admission clearly manifest, the defence of the accused that, as he stated, he borrowed the loan of Rs.50,000/- during 2014 is stands proved. The accused specifically stated that, the said loan was taken by him from the complainant on the security of 2 signed blank cheques, 2 signed blank On demand promissory notes, blank stamp papers along with his property documents. No common people did securing any security documents, taken risk to pay the loan. Therefore, the statement given by the accused made clear that, on the security of the documents narrated the complainant had lent the loan of Rs.50,000/-. Even, to put those suggestions to the mouth of PW.1, the PW.1 has scared to enter into witness box and in the anticipation avoided questions raised by the accused. From the said evidence it also reveal that, without obtaining any security documents, the complainant alleged to be paid loan of Rs.9,50,000/- to the accused.
23. On going through the pleading, he contended that, on 30.06.2014 he lent the said loan to the accused with interest at 18% p.a. and he undertakes to repay the same within the short period of time. On meaningful reading of the pleading, it does not revealed, exactly on which date, the accused has made request and what was the compelling circumstances made to the accused to borrow the said huge loan amount from the complainant and Judgment 16 C.C.No.3482/2018 how the complainant had mobilized the said huge amount and exactly on which place, time and in whose presence, he disbursed the said loan amount to the accused is been absent. More particularly, the complainant has not disclosed, what was the exact short period of time the accused borrowed the loan and on which confidence the complainant has lent the said loan without any security documents, for repayment. Therefore, it requires to focus on the cross of PW.1.
24. During the course of cross of PW.1, he deposed that:
ನ ಸಲವಗ ಪಡದದದರನ. ಆತನ "ಆರರನಪ ನನನಯದ ರರರ9,50,000/- ವನನ ಗರನದಮನನ ನ ಕಟಷಬನಕನ, ಹರಸ ಸಯಟಪಯಗ ಶನಟನನ ನ ಹಕಬನಕನ ಎಯದನ ಸಲವನನ ದ , ಅದಕಕ ಬದಯಕನ ಬಡಡ ದರವನನ ನ ಕನಳದನ ನ ಸನರಸ ಕರಡನವದಗ ತಳಸದದರನ. ದನಯಕರ30.06.2014 ರಯದನ ಆರರನಪ ನನನಯದ ಹಣ ಪಡದದದರನ. ಆರರನಪ ನನನಯದ ಸಲ ಪಡದನ, 2 ತಯಗಳ ಕಲ ಮಸಕ ನ ಕರಟಷದದರನ. ಮತತ ಬಡಡಯನನ ರರರ12,500/- ದಯತ ಬಡಡಯನನ ನ ನನಡಲಲ, ಕನಳದಗಲಲ ಲ ನಯತರ ಕರಡನತತನನಯದನ ಹನಳನತತದದರನ. ಒಯದರವರ ವಷರಗಳ ಕಲ ಬಡಡ ಕರಟಷಲಲ. ದನಯಕರ02.08.2017 ರಯದನ ಆರರನಪಯ ಮನಯಲ ಕಯರಕ ಕಮ ನಡಯನವಗ, ನನನ ಹರನಗ ನ ಕರಟಷದದರನ. ಆರರನಪಗ ನಗದಗ ಸಲ ಕನಳದಗ, ಆರರನಪ ಚಕಕನನ ಕರಟಷದನನ. ನನನ ವಕರ ಶಪನಲ ಮಧದಹನ ಊಟದ ಸಮಯ 1.30 ರಯದ 2.00 ಗಯಟಯ ಅವಧಯಲ ಕರಟಷದನ. ಆಗ ಬನರಯವರನ ಇರಲಲಲ. ಆರರನಪಗ ರರರ100/-, ರರರ500/- ಮತನತ ರರರ1000/-
Judgment 17 C.C.No.3482/2018
ಮನಖ ಬಲಯ ಬಯಡಲಗಳನನ
ನ ಕರಟಷದನ. ಎಲ
ಲ ನರನಟನಗಳ
ಮಶ ಪಣವತನತ. ದನಯಕರ30.06.2014 ರಯದನ ಆರರನಪಗ ಸಲ
ನ ಕನಳದದರನ. ಆ
ಕರಟಷದನನ. ಆರರನಪ 2 ದನ ಮನಯಚ ಬಯದನ ಹಣವನನ
ಕರಣಕಕ ಆ ಹಣವನನ
ನ ನನನ ಮನಯಯದ ದನಯಕರ30.06.2014 ರಯದನ
ಕರಡನತತನನಯದನ ತಳಸ, ನನನ ವಕರ ಶಪನಲ ತಯದಟನ
ಷ ಕರಯಡದನನ."
25. On going through the said cross-examination of PW.1, he deposed that, he lent Rs.9,50,000/- to the accused for the purpose of construction of godown and lay new centering sheets and undertakes to pay the bank interest. Accordingly, on 30.06.2014, he lent loan to the accused. On close perusal of the said testimony of PW.1, as per his say, he borrowed the said loan for the purpose of forming godown and lay new centering sheets.
If so, definitely, where that godown has been constructed, what is the necessity to lay the new centering sheets, unless it is knew to the complainant, but he is not been satisfactorily explained. Moreover, the PW.1 has deposed that, he knew the accused since 8 years, he used to came to his welding shop for the purpose of welding of his centering materials. More categorically he deposed, the accused is also doing steel centering work. It is not his contention that, accused is having separate centering center in doing the said business. But his evidence is not consonant with Judgment 18 C.C.No.3482/2018 the pleading with regard to the reasons assigned for the alleged loan.
26. Contrary to his testimony, in the pleading he stated that, accused borrowed the said loan for the purpose he was facing monetary constraints for his legal necessities and for the business purpose. From the said pleading, it made clear that, the accused already suffering from financial constraints and he was need the money for his legal necessities and business purpose. It leads to draw the inference that, the accused was not financially strong and even he himself under the financial constraints. Therefore, if lent the loan to the accused, on which capacity he anticipated repayment from the accused is also not been satisfactorily explained. If at all, as he deposed, he borrowed the loan for the purpose of forming godown or lay new centering sheets definitely, it could have been pleaded or else, he could have been deposed in the line of pleading with necessary clarification, as to what kind of monetary constraints, he had and what kind of legal necessities he had faced and what type of business purpose, he borrowed the said loan could have been explained, but the same is seriously lacks. Therefore, it creates doubt as to the alleged lent of loan.
Judgment 19 C.C.No.3482/2018
27. That apart, in the said further cross-examination it also revealed that, the PW.1 has categorically admitted against the said loan, the accused had paid the interest for the period of 2 months at Rs.12,500/-, thereafter, he not paid for the period of 1 ½ years. From which, it clearly manifest that, the complainant for the purpose of interest alleged to be lent the loan. In the pleading he stated, the accused had agreed to pay the interest at 18% p.a. In order to agreed the proposal of the complainant, it should be the pressure on the complainant to give the interest at the exorbitant rate of interest is to be seen. Unless he made proposal the question of accused agreed the same documentary evidence is not arise. On close perusal of the pleading and limited evidence of PW.1 available during the course of cross- examination, it made clear that, the PW.1 is not doing the money lending business nor obtaining any licence as such, but he run the welding shop and provided labour work to that can be understand from the evidence of PW.1 that:
"ನನನ ವಲಡಯಗಶಪನಲ ಜಬ/ಲನಬರ ವಕರ ಮಡನತತನನ. ಆ ಕಲಸಕಕ ಷ ವ ಅಗತದ ಇಲಲ.
ರವದನ ತರಗ ಕಟನ ಅದನ ನರನಯದಯತ ಸಯಸಸರಗಲಲ. ನನನ ವರರಕ ವರಮನ ಕನಷಷ ರರರ3 ಲಕದಯದ ರರರ5 ಲಕದವರಗರ ಇದ. ನನನ ಆದಯ ತರಗ ಪವತಸಲಲ. ನನನ ಈಗ 10 ವಷರದಯದ ದರರನ ಶನರರಕಯ ವಳಸದಲ ವಸ ಮಡನತತದನ."
Judgment 20 C.C.No.3482/2018
28. From the said testimony of PW.1 it made clear that, the complainant is doing job work in his welding shop. Even he not registered his business nor paid tax. In order to show that, he had the income in between Rs.3 lakhs to Rs.5 lakhs per year, he not submitted income tax returns nor produced any document. He also stated, since 10 years he has been resided in the cause title address of the complaint.
29. As per the said testimony of PW.1, it made clear that, the complainant is not doing money lending business nor obtained any licence. Therefore, it is illegal from the part of complainant lent the huge loan with higher rate of interest. The very act of the complainant is against the provisions of money lending act. When there are so many financial institutions are waiting to disburse the loan with lessor rate of interest, the complainant no need to pay the said loan with that huge exorbitant rate of interest. Therefore, the very act of the complainant, it leads to draw the inference that, the complainant is doing illegal money lending business for the higher rate of interest. If so, it made clear that, on which security the complainant has lent loan to the accused is to be seen. As appreciated earlier, it made clear that, without obtaining any security as earlier, the accused got cleared the loan up to Rs.1 lakh more than 3 - 4 times. Therefore, he lent loan without any Judgment 21 C.C.No.3482/2018 security document. As against the statement of the accused, as he borrowed the loan of Rs.50,000/- on the security of signed blank documents stated supra.
30. It is also relevant to note here itself that, in the former deposition reproduced earlier, it also continued to discloses that, the PW.1 has deposed, when the function was conducted in the house of accused, he went there and asked the accused, then he gave cheque. He stated that, on 02.08.2017 the accused gave the cheque. It is pertinent to note that, Ex.P1-cheque got dishonoured for the reasons "Funds Insufficient" as per bankers memo. If at all, the accused gave cheque on 02.08.2017 itself definitely, on the confidence of maintenance sufficient balance, then only used to put the date. Unless maintain sufficient fund as mentioned in the cheque, the question of mention same date without maintaining sufficient funds does not arise. The complainant has not presented the said cheque for encashment on 02.08.2017, but he was presented the same on 31.10.2017 about the lapse of 88 days. It clearly manifest that, the accused on 02.08.2017 impossible to issue cheque by mentioning the same date. If at all, it was issued definitely, then and there itself needs to present for encashment, but he did not choosen to do Judgment 22 C.C.No.3482/2018 so, it creates doubt as to the alleged execution and issuance of the questioned cheque.
31. The said testimony also revealed that, the complainant gave the said loan amount in his work shop in between 1.30 p.m. to 2.00 p.m. by that time none were present. He stated, in the denomination of Rs.100/-, Rs.500/- and Rs.1000/- notes in bundles mixture, on all were given to accused. If at all, it was true definitely, how much bundles of the each denomination he needs to be explain, but same is not. He stated that, 2 days earlier from the alleged lent on 30.06.2014, accused requested for the money, for that reason he brought the money from his house and given to the accused in his work shop. Therefore, the very evidence of PW.1, since he is being running the welding shop for doing piece labour work expected to store Rs.9,50,000/- itself is created doubt. As per the earlier deposition he stated, his annual income was Rs.3 lakhs to Rs.5 lakhs. Therefore, in order to save that much amount, he needs to wait and calculate for the period of 4 years without spending the said money for his business purpose or his family expenses. Even it is not his contention as such. Under such circumstances, kept money of Rs.9,50,000/- in his home and brought the same to his work shop and given to the accused on the alleged date itself creates doubt.
Judgment 23 C.C.No.3482/2018
32. As per Section 69 of SS of Income Tax Act, it mandates to pay money more than Rs.20,000/- by way of cheque or demand draft. But the complainant by ignoring the said provisions, as claimed to be paid the said huge amount itself creates doubt. That apart, either to show that, he had physical money as such, he not produced any document or to establish that, those amounts physically handed over to the accused, he not secured any documentary evidence or security documents nor did the transaction in the presence of witnesses. The said testimony of PW.1 it reveal that, against the true transaction he projected, he lent loan of Rs.9,50,000/- to the accused, itself creates strong doubt with regard to his financial capacity as well as mobilizing the said huge amount.
At this stage this court has gone through the decision reported in Criminal Appeal No.2402 of 2014, between K.Subramani V/s K.Damodara Naidu, the Hon'ble Apex court held that:
"The Hon'ble Apex Court confirmed the Judgment of Trial Court acquitting the accused on the ground of capacity to pay the amount of cheque. In the above said ruling the Trial Court acquitted the accused on the ground that the complainant had no source of income to lend sum of Rs.14,00,000/-. In the appeal the 1 st Appellate Court set aside the order and remanded the Judgment 24 C.C.No.3482/2018 matter to the Trial Court to give an opportunity to complainant to prove the same. The accused went in appeal before the Hon'ble Apex Court and the Hon'ble Apex Court has set aside the order of the 1 st Appellate Court and upheld the acquittal order passed by the Trial Court".
33. From the point of said dictum it also needs to prove by the complainant that, he has financially settled and capable to lent the alleged loan, but he utterly failed to demonstrate the same. Even his alleged welding shop business and doing piece labour work is also not obtained any licence from the concerned authority. Therefore, it appears that, from the said business the complainant earned money and lent the huge loan to the accused itself creates doubt. That apart, in his further cross-examination, the advocate for the accused has suspected about the mobilization of huge amount of Rs.9,50,000/-. Then he deposes that, he kept money earned from his work as well as for the purpose of his daughter's, his father-in-law gave Rs.30 lakhs and he kept the said money with him and those factum were narrated in his legal notice.
34. On close readings of the testimony of PW.1, he try to project that, he mobilized fund through his father-in-law for the tune of Rs.30 lakhs. If at all, his father-in-law gave Rs.30 lakhs definitely, he is the best witness to depose before this court, as to Judgment 25 C.C.No.3482/2018 mobilization of funds. It is not his case that, by mobilizing fund through his father-in-law and alleged lent to the accused. The very evidence of PW.1 getting twist from time to time is not safe to rely upon as to mobilization of fund as well as alleged lent of loan to the accused. Therefore, it needs to draw the adverse inference that, for the reasons stated by the accused in his 313 of Cr.P.C. statement, he gave questioned signed blank cheque and other documents to the complainant in respect of the loan of Rs.50,000/-, despite he got cleared, the complainant has not returned the said documents to the accused. Therefore, the complainant smelt the probable defence and real transaction held between inter-se, avoided to tender for further cross-examination.
35. That apart, on close perusal of the documents of the complainant, he choosen to produce his bank passbooks at Exs.P7 and P8. On going through the Ex.P7, the complainant as on 01.02.2014 and 02.08.2014 his bank balance was Rs.1904/- and 1942/- respectively. In between the said period alleged to be paid Rs.9,50,000/- on 30.06.2014 on the said day absolutely there is no transaction of either deposit or withdrawal or any transferred. Therefore, as per the Ex.P7 it made clear that, even minimum balance was not maintained in the account of the complainant, as on the alleged date of lent of loan.
Judgment 26 C.C.No.3482/2018
36. That apart, in the another bank bank passbook at Ex.P8 it discloses, as on 21.06.2014 his bank balance was Rs.2,68,000/- and as on 01.07.2014 bank balance was Rs.4,08,368/-. In between the same, as alleged on 30.06.2014 either he not deposited or withdrawn the alleged loan amount of Rs.9,50,000/- in order to pay to the accused. It is not his contention that, by withdrawing money from his bank account and paid to the accused, but his say was kept the money in his house and alleged to be lent to the accused. Unless he establish possession of physical money of Rs.9,50,000/- question of lent to the accused does not arise. Moreover, the said money is not legal money, therefore, cannot be said that, it was lent by him for interest.
37. As said earlier, he pleaded for the short period he lent the said huge amount with interest. As per his say, without security alleged lent. No prudent man without any specification for repayment or security is not take risk to lend the huge amount. But the complainant was dare enough to taken that risk it shows that, since the said transaction are not happened, therefore, he was not taken any security document. Perhaps he could have taken the said contention, in the anticipation of accused defence as to misuse of 2 signed blank cheques, 2 signed blank On demand promissory notes, blank stamp papers along with his Judgment 27 C.C.No.3482/2018 property documents. If at all, he had any documents as such, could have been avoided for the reasons better known to him. No doubt, during the course of cross of PW.1, the accused try to projected that, the complainant is doing money lending business for higher rate of interest. Therefore, so many suggestions were made as to lent of loan to the various persons by names Mr.Nagendra Kumar for Rs.2 lakhs in C.C.No.14467/2016, against Mr.Nataraj, Mr.Gangadhar, Mr.Venkatesh and Mr.Nanjappa, he filed so many cheque bounce cases is been denied by him. But he categorically admitted that, he filed cheque bounce cases against Mr.B.S.Anandkumar for Rs.26 lakhs and against Mr.L.Venu and Smt.Bharathi.V for Rs.4 lakhs. Though, he admitted as such, but he denied judgment copy tendered to him in connection to C.C.No.1032/2016 filed by the complainant herein. For the reasons better known to him, he denied the filing of cases.
38. That apart, he also categorically admitted, before the court of Nelamangala and in the City Civil Court against one Mr.Puttanarasappa and Mr.Channabasava, he filed original suits in O.S.Nos.155/2016 and 1084/2016 respectively for the relief of specific performance. The said testimony of PW.1 made clear that, the complainant is in the habit of filing cheque bounce cases and suits for specific performance. Though, filling of other cheque Judgment 28 C.C.No.3482/2018 bounces cases and suits are not subject matter of this court, it needs to consider the financial capacity of the complainant. As per his say, he had limited income of Rs.3 lakhs to Rs.5 lakhs from his profession per year. If at all, his father-in-law gave Rs.30 lakhs definitely, all these transactions he could not done from his self earned money. In order to do all those transactions, that apart, the PW.1 has admitted against the 3 persons, he filed cheque bounce cases for Rs.39 lakhs. The said attitude of the complainant demonstrate, he is doing money lending business, therefore, as a security took the cheques and played against the respective persons like accused herein. The letter head bill submitted by the complainant as per Exs.P9 to P12, it was for different duration. In order to show that, he attended the said work and got receipt of the amount made mentioned therein in between the period 2013-14, the payer signature is not been taken in order to show that, he attended the said work, necessary document is not been placed by him.
39. That apart, in his further cross-examination the advocate for accused got tendered Exs.D1 to D3. The said documents were clearly admitted by the complainant, as he filed those cases against the respective 3 persons for the tune of Rs.39 lakhs. On going through the Ex.D1, it also made clear that, against Judgment 29 C.C.No.3482/2018 Smt.Bharathi.V and Mr.L.Venu, complainant herein alleged that, during the year 2014, he lent Rs.5 lakhs on interest at 2.5% p.m. which is the exorbitant rate of interest. As per Ex.D2, the complainant had filed cheque bounce case against Mr.B.S.Anand Kumar for Rs.13 lakhs on interest at 18% p.a. alleging lent of loan on 08.01.2015. As per Ex.D3, he filed case against one Mr.Muniraju.G, alleging lent of loan of Rs.2 lakhs with interest. Wherein, the accused came to be acquitted. However, from Exs.D1 to D3, which clearly manifest that, he is in the habit of doing money lending business with higher rate of interest. When he himself alleged lent of Rs.5 lakhs to Smt.Bharathi.V and Mr.L.Venu during the year 2014 as found in Ex.D1, how he mobilized again the alleged loan of Rs.9,50,000/- given to the accused itself creates doubt, as to the genuineness of transaction put forth by the complainant. The complainant has utterly failed to prove that, first of all, he had financial capacity to lend the huge amount of Rs.9,50,000/-. He also failed to prove that, he had requisite fund as such alleged to be paid to the accused as loan. The complainant has utterly failed to demonstrate the possession of the said money as alleged lent to the accused. No prudent man, on the very same day of issuance of cheque, would not take risk to mention the date, but he alleged on the date made Judgment 30 C.C.No.3482/2018 mentioned in the cheque accused got issued. If so, why the complainant had been avoided to present it for encashment more than after lapse of period of 88 days, it also creates doubt, as to its execution and issuance. On going through the Ex.P1 cheque it discloses, the signature and other fillings are made in different hand writing and ink. Therefore, it is him to explain, who got executed. If really, the accused got executed definitely, it should be in his hand writing and par with Ex.P1(a) signature, but ink and hand writing are unlike, therefore, it creates strong doubt, as to its execution and issuance and though it was reverse burden on the complainant to prove the same, he utterly failed to demonstrate.
40. That apart, the legal notice as per Ex.P3 needs to be serve on accused to arise the cause of action to file the present case. He deposed, to the visiting card given to him as he deposed in his cross-examination, he sent legal notice as per Ex.P5. In his cross-examination he categorically admitted road, cross number is not been mentioned. By which, it also made clear that, the proper address is not been mentioned in the Ex.P5. On close perusal of the entries made by beat postman it reflection, on 01.12.2017, 04.012.2017 and 05.12.2017 door locked I/D. On close reading of the endorsement made as such, when door was locked, to whom the postman gave the intimation itself creates Judgment 31 C.C.No.3482/2018 doubt. If the door was locked, question of delivery the intimation does not arise. Therefore, it prima-faice discloses, intimation was not delivered either to the accused or to his family members. Therefore, the legal notice was not served on accused. When door was locked expected to deliver to the said address does not arise. If at all, the complainant has access with the accused and did huge loan transaction as alleged in the present case definitely, he must know the correct address whereabouts of the accused in order to recover the said money. But without having any security documents, without knowing his correct address has projected, he lent Rs.9,50,000/-. As required under Section 138(b) of Negotiable Instruments Act, the legal notice require to be served on the accused. But Ex.P5 remains unserved. From that point also it made clear that, the complainant has not complied the mandatory provision to maintain the present case.
41. Therefore, as discussed earlier, the complainant new all the defects in his complaint, the alleged transaction is not suppose to be happened between complainant and accused, he avoided to tender for further cross-examination. The very act of the complainant in presenting the case by misusing the questioned cheque of the accused has to be condemned. The accused has successfully proved his probable defence, which goes to the route Judgment 32 C.C.No.3482/2018 of the case of complainant and alleged transaction is not been happened between complainant and accused, as he projected. Though reverse burden is casted on the complainant enumerated under Section 139 of Negotiable Instruments Act, he utterly failed to prove his case beyond the reasonable doubt. Therefore, the accused is entitled for benefit of doubt for acquittal.
42. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
43. In the case on hand, the accused has clearly made out a probable case in respect of his non-liability to pay the cheque amount mentioned in Ex.P1 and that, the cheque Ex.P1 was actually issued for security in respect of earlier hand loan of Rs.50,000/- and not to the present transaction as alleged by the complainant.
In a decision reported in 2010 (2) DCR 80 Karnataka High Court (Matheson Bonsanquet V/s. K.V.Manjunatha). Wherein the Hon'ble Court held that:
Judgment 33 C.C.No.3482/2018 "In a criminal case, the complainant has to prove beyond the reasonable doubt in his case against the accused as alleged in his complaint but not a case which is contrary to one alleged in the complaint. Further, it is also held that, cheque was issued as security for performing his part of contract entered into between himself and the complainant and further it is also not the case of the complainant that, the accused did the breach of contract then no offence arises under Section 138 of Negotiable Instruments Act".
The principle of law laid down in the above decision is aptly applicable to the case on hand.
44. The principles of law laid down in the above decisions also applicable to the facts of the case. In the instant case, as appreciated above, it clearly manifested that, without any obligation from the side of the accused, as well as without narrating proper grounds, as to how, accused is liable to pay amount covered under the cheque alleged to be issued by the accused is also not demonstrated by the complainant satisfactorily. On the contrary, it can presume that, the said cheque was possessed by the complainant from the unexplainable source, and falsely projected the case and failed to prove the same. Hence, there is no question of drawing Judgment 34 C.C.No.3482/2018 presumption under Section 118(a) or 139 of the Negotiable Instruments Act, even though the signature in Ex.P1 is admitted by the accused. Just because, the cheque bares the signature of the accused, that, will not mandate the court to draw the presumption under Section 118 of Negotiable Instruments Act.
At this stage, this court relies upon the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
"Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
45. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheque bares his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s.
Judgment 35 C.C.No.3482/2018 Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act - Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
46. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.9,50,000/- to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
Judgment 36 C.C.No.3482/2018 "Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
47. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, he is not liable to pay Ex.P1 cheque amount of Rs.9,50,000/- and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and he is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken his defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.9,50,000/-. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 37 C.C.No.3482/2018 Apart from that, in a decision reported in, KCCR 12 (3) page 2057, the Hon'ble Apex Court held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
48. In the case on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show his financial capacity to lend an amount of Rs.9,50,000/- to accused. When complainant has failed to prove the transaction as alleged in the complaint, then the question of issuing the cheque for discharge of Rs.9,50,000/- does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.9,50,000/-. The complainant has failed to establish that, the amount covered under the cheque is the existence of legally recoverable debt. Hence, complainant has failed to prove the guilt of accused of the offence punishable under Section 138 of Negotiable Instruments Act.
49. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and Judgment 38 C.C.No.3482/2018 corroborative evidence to show that, accused has issued cheque Ex.P1 for discharge of his legally payable debt, for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
50. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
51. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the Judgment 39 C.C.No.3482/2018 reverse burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.9,50,000/- legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety, without the support of the substantial documentary evidence pertaining to the said transaction. The complainant utterly fails to prove his case beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
52. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
Judgment 40 C.C.No.3482/2018 (Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 4 th day of March - 2021) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Venkatesh.V List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Not claimed R.P.A.D., cover Ex.P5(a) : Legal notice at Ex.P5 Ex.P6 : Private complaint Ex.P6(a) : Signature of complainant Exs.P7 & P8 : Bank pass books Exs.P9 to P12 : Letter head bills
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
Ex.D1 : CC of order sheet in C.C.No.16465/18 Ex.D2 : CC of private complaint in PCR No.6059/18 Ex.D3 : CC of judgment in C.C.No.9166/2016 XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 41 C.C.No.3482/2018
04.03.2021.
Comp -
Accd -
For Judgment
Case called out. The complainant and
accused as well as both side counsels are also remained absent.
The advocate for complainant yesterday i.e., on 03.03.2021 without submitting the board application under Section 309 of Cr.P.C. has submitted the application under Section 311 of Cr.P.C., seeking to re-open the stage for tender the PW.1 for further cross-examination.
The accused and his advocate are absent. When the judgment is ready and yet to be pronounced, the advocate for the complainant filed the instant application. When the judgment is ready, considering the belated application does not arise, hence, the same is rejected.
Kept by for pronounce judgment.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Again called out. The complainant and his counsel are absent. Accused and his counsel are present. This court proceed to pronounce the judgment in the open court vide separate order.
ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence Judgment 42 C.C.No.3482/2018 punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.