Bangalore District Court
S/O Sri. Lakshmanappa vs S/O Late M. Lakshmanan on 26 March, 2022
CC No: 5855/2019
KABC020264742019
IN THE COURT OF THE VI ADDL. SMALL CAUSES JUDGE &
XXXI ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY
C.C. NO:5855/2019
Present: Smt. Shainey K.M., BAL.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACMM, Bengaluru.
Dated: On this 26th day of March, 2022.
JUDGMENT U/S 355 OF CR.P.C. 1973.
1. Sl.No. of the Case : C.C.No.5855 of 2019
2. The date of : 10.10.2019.
commission of the
offence
3. Name of the : Sri. Somanna L.,
Complainant
S/o Sri. Lakshmanappa,
Aged about 39 years,
R/at Apartment No.1204,
Godrej Apartment,
Sahakara Nagar, Airport Road,
Bengaluru-560 092.
SCCH-2
2
C.C.5855/2019
(By Sri. S. Balan & Associates, Advocates)
4. Name of the : Sri. L. Ravi,
Accused
S/o Late M. Lakshmanan,
Aged about 46 years,
R/at No.16, 3rd A Main,
Srinidhi Layout,
Vidyaranyapura,
Bengaluru-560 097.
(By Sri. Jose Sabastian & Associates, Advocates)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument
Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused is acquitted
8. Date of such order for : 26.03.2022.
the following
JUDGMENT
This is a complaint under Sec. 200 of Cr. P. C. for the offence punishable under Section 138 of the Negotiable Instruments Act.
SCCH-2 3 C.C.5855/2019
02. The essence of the complainant's case is as follows:
2.1 It is contended that, accused is well known person to the complainant as well as his family. In the month of August-2019, accused had approached the complainant and requested for financial help of Rs.50,00,000/- for the purpose of purchasing property at Vidyaranyapura, Bengaluru. It is stated that, accused was over due to the bank and his account was at the verge of being classified as NPA. The complainant has paid Rs.30,00,000/- to the accused through RTGS on various dates between 21.08.2019 and 05.09.2019. Accused has agreed and promised to repay the loan on or before 12.09.2019 and issued a cheque dated:11.09.2019 drawn on SBI, BEL Factory Campus branch for Rs.20,00,000/- towards part repayment loan of Rs.30,00,000/- by executing the undertaking/financial settlement agreement dated:12.09.2019 and also executed an on demand pro-
note in favour of the complainant.
SCCH-2 4 C.C.5855/2019 2.2. On presentation of above said cheque, through his banker by the complainant, cheque was returned with an endorsement stating funds insufficient on 13.09.2019. Thereafter, the complainant got issued legal notice on 18.09.2019 through RPAD, as contemplated under Section 138(b) of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act"), to the accused to make payment of the cheque amount, however the notice has been returned with an endorsement stating refused, returned to sender on 20.09.2019. Despite deemed service of notice regarding dishonour of cheque, accused failed to pay the amount covered under the cheque within statutory period of notice of demand. Hence, this complaint.
03. Cognizance of the offence was taken on presentation of the private complaint and ordered to register the criminal case, as there were prima facie materials to proceed against the Accused.
SCCH-2 5 C.C.5855/2019
04. On being served the summons, the accused appeared through his counsel and released on bail. Plea of the accused was recorded by explaining the substances of accusation. Accused has pleaded not guilty and claims to be tried. The Accused has filed application under Section 145(2) of N.I Act, seeking permission to cross-examine Complainant and to proceed in accordance with Law. Accordingly, the application was allowed and the Accused was permitted to cross-examine Complainant/Pw-1.
05. In proof his contention, complainant got examined himself as Pw:1 by filing affidavit in lieu of examination in chief and exhibits were marked as Exs.P.1 to P:5. The complainant did not tender himself for cross examination in spite of sufficient opportunity. Hence, cross-examination of Pw-1 was taken nil and closed complainant's side evidence.
SCCH-2 6 C.C.5855/2019
06. After closure of complainant's side evidence, statement of the accused as required U/Sec. 313 of Cr.P.C. has been recorded and explained incriminating evidence appearing against him. The accused has denied the contents of statement as false.
07. Accused was examined himself as D.W.1 and Ex.D.1 to 35 were marked in evidence as exhibits. Complainant did not cross-examine D.W.1.
08. Heard arguments of learned counsel for accused. Complainant did not submit his side arguments.
09. Perused the materials placed on record. Now, following points that arise for my consideration;
POINTS
1. Whether complainant proves beyond all reasonable doubt that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
SCCH-2 7 C.C.5855/2019
2. Whether accused has rebutted the presumption as contemplated u/sec 139 of N.I Act?
3. What order?
10. My findings to the above points are:
Point No.1 : In the Negative Point No.2 : In the Affirmative. Point No.3 : As per the final order for the following;
REASONS
11. Point No.1 and 2:- In proof of her contention, the complainant was examined as Pw:1, who filed affidavit evidence in lieu of examination in chief. In chief examination affidavit Pw:1 has deposed in consonance with the averments of the complaint. In chief examination affidavit, Pw:1 has deposed that, he advanced loan of Rs.30,00,000/- to the accused through RTGS on various dates between 21.08.2019 and 05.09.2019. He further deposed that, accused has executed finance settlement SCCH-2 8 C.C.5855/2019 agreement dated:12.09.2019 and on demand promissory note in favour of complainant, acknowledging the debt and liability and he also issued a cheque in dispute with an instruction to present the same on 13.09.2019. To substantiate his contention, complainant has produced cheque in dispute at Ex.P.1 and finance settlement agreement at Ex.P.5.
12. The cheque issued by the accused was got dishonoured on 13.09.2019 and returned by the bank vide endorsement stating funds insufficient in the account of accused and it is evident from perusal of Ex.P.2- the memo issued by the bank. The complainant has issued statutory notice to accused on 18.09.2019, as per Ex.P.3. Ex.P.3(a) and 4 are the postal receipt in respect of legal notice and postal cover returned with an endorsement stating unclaimed by the accused. The loan bond allegedly executed by the accused on 12.09.2019 is marked as Ex.P.5.
SCCH-2 9 C.C.5855/2019
13. On perusal of oral and documentary evidence placed by the complainant, it reveals that the complaint is filed well within time in accordance with the provisions of Negotiable Instruments Act. Moreover, there is no dispute with regard to taking cognizance of the offence punishable under Section 138 of N I Act.
14. The accused has seriously denied the existence of liability to pay the amount mentioned in cheque. In the present nature of cases the court has to determine whether version of complainant is true or the theory put- forth by the accused is true?.
15. At the outset, an essential ingredient of Section 138 of N.I Act is that the cheque in question must have been issued towards legally enforceable debt. Under Section 118 of the Act, a presumption shall be raised regarding consideration, date, transfer, endorsement and regarding holder in the case of negotiable instruments. Even under Section 139 of the Act, a rebuttable presumption shall be SCCH-2 10 C.C.5855/2019 raised that, the cheque in question was issued regarding discharge of legally enforceable debt. These presumptions are mandatory provisions that are required to be raised in case of negotiable instruments.
16. Keeping in mind the position of law as stated supra, let me deviate to appreciate the evidence of PW-1. In spite of sufficient opportunity being given to the complainant; he did not appear before the court to tender himself for cross examination. Hence, Cross examination of PW:1 was taken as nil.
17. I have gone through the averments made in the complaint as well as affidavit filed by the complainant in lieu of examination-in-chief. Despite production of documents at Exs.P:1 to P.5, he did not appear and enter the witness box for the purpose of cross examination, so as to prove his contention. It appears that, the contention of the complainant is not genuine. Therefore, an adverse SCCH-2 11 C.C.5855/2019 inference has to be drawn that, there is no legal liability on the part of the accused.
18. As appreciated herein above the complainant has failed to put forth him case with material documents, as well failed to tender him for cross examination. Under these circumstances, it can be assumed that, there is no legal liability to pay the amount as contended by the complainant.
19. The positive evidence adduced by the accused has remained unchallenged and uncontroverted. The accused has filed affidavit in lieu of examination-in-chief and deposed that, he is working as a Deputy Manager in M/s Bharath Electronic Limited under the Ministry of Defence, Government of India and he rendered service to the company from past 25 years. D.W.1 deposed that, he had purchase a property at Vidyaranyapura, Bengaluru from one A. Sudha under registered sale deed dated:18.09.2015 and he availed loan of Rs.31,00,000/-
SCCH-2 12 C.C.5855/2019 from S.B.I., Jalahalli Branch towards the purchase of aforesaid property.
20. It is further deposed by Dw:1 that since the equated monthly installment was burdening him, he had decided to sell the property and this being state of affairs, BDA had executed registered sale deed on 18.01.2018 in respect of the site, which was allotted to accused at Arkavathi Layout, way back in the year 2017. The accused had taken hand loans from Sri. Muniraju and Manju, however since he could not repay the hand loans, he approached Muniraju with a proposal to sell his property which was situated in Arkavathi Layout and whereby it was agreed that, the amount which was taken as hand loan was to be adjusted towards the sale consideration and accordingly the property was sold to Dakshani wife of Muniraju under Registered sale deed dated:07.02.2019 for total sale consideration of SCCH-2 13 C.C.5855/2019 Rs.24,30,000/-. After the adjustment of hand loan, accused had received a sum of Rs.20,00,000/-.
21. D.W.1 further deposed that, B.S. Venkatesh and B.S. Srinath have opted to sell their property bearing Site No.50, Carved out of Sy.No.16 of Chikkabetta Halli for a sum of Rs.97,25,000/- and accused had entered into a sale agreement with them and he paid a sum of Rs.22,25,000/- towards the sale consideration out of Rs.97,25,000/-. He agreed to pay the balance sale consideration amount of Rs.75,00,000/- at the time of registration of sale deed. The sale agreement was materialized at the instance of one Yogesh, who was the real estate agent at Vidyaranyapura, Bengaluru.
22. D.W.1 deposed that, he opted to sell his house situated at Vidyaranyapura at Bengaluru and he had listed the property at the hands of aforesaid Yogesh. That on 26.05.2019, the accused had met aforesaid Yogesh at his office to enquire about the progress of the property, which SCCH-2 14 C.C.5855/2019 was intended to be sold and during the course of his discussion, aforesaid Yogesh had apprised him that, MLC candidate namely Sri. L. Somanna-the complainant is a well known political leader and he could be interested in purchasing accused's property. Thus, the complainant was got introduced to the accused by aforesaid Yogesh. The accused has believed that, the complainant is an influenced person. The complainant had advised to meet Sri. Venkatesh at Kollegala who could eradicate Drishti Dosha (Evil Eye) and convienced him to perform pooja, so accused could sell his property easily. Thus, the complainant has become very close to accused and conveyed him to purchase a site in MUDA at Mysore.
23. It is contended that, accused has paid Rs.1,00,000/- and Rs.50,000/- as commission for the allotment process. The evidence of accused discloses that, he had paid huge amount to the complainant on various dates and also signed few bond papers. Thereafter, he came to know SCCH-2 15 C.C.5855/2019 that, complainant was arrested by Basaveshwara Police, however he had escaped from the custody of police. To substantiate his contention, he had produced the paper publications at Ex.D.10. The WhatsApp chats between the parties to the case was marked at Ex.D.2 to 6. Ex.D.1 is the identity card of the accused. Ex.D.11 to 29 discloses that, the complainant has in habit of filing criminal cases against several persons under Sec.138 of N.I. Act. Several criminal cases filed by the complainant for the offence punishable U/Sec.138 of N.I. Act was dismissed and accused of those cases were acquitted as per Ex.D.13, 18,
19. Several criminal cases were dismissed for non- prosecution and it is evident from perusal of Ex.D.16, 14,
20.
24. Perusal of Ex.D.13- the final report submitted by investigation officer, Kodigehalli Police discloses that, charge sheet was submitted against complainant herein in C.C.No.29624/2015 for the offence punishable U/Sec.420 SCCH-2 16 C.C.5855/2019 and 506 r/w Sec.34 of I.P.C. The documents produced by the accused clearly discloses that, complainant has involved in many criminal cases. The complainant has not cross-examined the accused to test the credibility of the witness. The accused has placed rebuttal evidence to prove his defence. Hence, the complainant has utterly failed to prove that the cheque in question was issued towards legally recoverable debt and thereby the accused had committed an offence punishable under Sec.138 of the N.I. Act. In the circumstance, I hold the above point in the Negative.
25. Point No.2: In view of the finding on the point No.1, I proceed to pass following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
SCCH-2 17 C.C.5855/2019 The bail bond and surety bond of the accused is hereby stand cancelled and he is set at liberty. Ordered accordingly. (Dictated to the stenographer on official laptop, typed by her, corrected, signed, then pronounced by me in open court on this the 26th day of March, 2022) (SMT. SHAINEY.K.M ) VI Addl. Small Causes Judge & XXXI ACMM, Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT P.W.1 : Sri. Somanna L. LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT: Ex.P.1 : Original Cheque dated:11.09.2019. Ex.P.1(a) : Signatures of accused. Ex.P.2 : Cheque return memo dt:13.09.2019 Ex.P.3 : Copy of legal notice dt:18.09.2019.
Ex.P.3(a) : Postal Receipt. Ex.P.4 : Returned postal cover. Ex.P.4(a) : Returned legal notice. Ex.P.5 : Loan settlement agreement.
LIST OF WITNESSES EXAMINED BY THE ACCUSED D.W.1 : Sri. Ravi L. SCCH-2 18 C.C.5855/2019 LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED: Ex.D.1 : Attested copy of I.D. Card of accused.
Ex.D.2 : Photo copy of WhatsApp message dt:05.08.2019.
Ex.D.3 : Photo copy of Cheque bearing No.400379, dt:02.09.2019.
Ex.D.4 & 5 : 2 C.Ds. Ex.D.6 : Certificate U/Sec.65 (B) of Indian Evidence Act. Ex.D.7 : Copy of Letter dated:25.09.2019 issued by the accused to Manager, SBI, Jalahalli. Ex.D.8 : Copy of representation issued by the accused to Bharti Airtel. Ex.D.8(a) : Postal Receipt. Ex.D.9 : Copy of report of cheating case filed against complainant. Ex.D.10 : C.D. Ex.D.11 : Certified copy of order sheet in P.C.R.12777/2019. Ex.D.12 : Certified copy of complaint filed in C.C.22183/2016. Ex.D.13 : Certified copy of judgment passed in C.C.22183/2016. SCCH-2 19 C.C.5855/2019 Ex.D.14 : Certified copy of order sheet in C.C.14725/2016. Ex.D.15 : Certified copy of complaint filed in C.C.14725/2016. Ex.D.16 : Certified copy of order sheet in C.C.11374/2016. Ex.D.17 : Certified copy of complaint filed in C.C.11374/2016. Ex.D.18 : Certified copy of judgment passed in C.C.10585/2016. Ex.D.19 : Certified copy of judgment passed in C.C.15583/2014. Ex.D.20 : Certified copy of order sheet in C.C.18663/2016. Ex.D.21 : Certified copy of complaint filed in C.C.18663/2016. Ex.D.22 : Certified copy of complaint filed in C.C.12184/2016. Ex.D.23 : Certified copy of joint memo filed in C.C.12184/2016. Ex.D.24 : Certified copy of complaint filed in C.C.10582/2016. Ex.D.25 : Certified copy of joint memo filed in C.C.10582/2016. SCCH-2 20 C.C.5855/2019 Ex.D.26 : Certified copy of complaint filed in C.C.10584/2016. Ex.D.27 : Certified copy of joint memo filed in C.C.10584/2016. Ex.D.28 : Certified copy of complaint filed in P.C.R.12778/2016. Ex.D.29 : Certified copy of joint memo filed in C.C.26880/2016. Ex.D.30 : Certified copy of Final Report filed in C.C.29624/2015. Ex.D.31 : Certified copy of complaint filed in P.C.R.5635/2016. Ex.D.32 : Certified copy of FIR filed in Cr.No.65/2018. Ex.D.33 : Certified copy of complaint dt:04.04.2018 filed by Purushothama to police. Ex.D.34 : Copy of Press Report issued by the
Commissioner of police, Bengaluru.
Ex.D.35 : Copy of E-mail messages.
(SMT. SHAINEY.K.M ) VI Addl. Small Causes Judge & XXXI ACMM, Bengaluru.