Bangalore District Court
Sri.T.Vijaykumar vs Tmc Electronics on 9 November, 2016
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 9th day of November 2016
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.643/2011
Complainant : Sri.T.Vijaykumar,
S/o.T.Thimmappa,
Aged about 36 years,
R/at.No.95, 2nd Main,
2nd Cross,
Panduranga Nagar,
Venkatadri Layout,
B.G.Road,
Bengaluru-560076.
(Rep. by Sri.B.L.Ranganatha.,
Adv.,)
- Vs -
Accused : TMC Electronics
No.1594, East End Road,
Jayanagar 9th Block,
Bengaluru-560 069.
Represented by it's Partners
1. Sri.Venugopal Rao Kureti,
S/o.K.Narasimha Rao,
Aged about 36 years,
2 C.C.No.643/2011 J
No.1594, East End Road,
Jayanagar 9th Block,
Bangalore - 560 069.
2. Sri.K.Srinivasa Rao,
S/o.K.Narasimha Rao,
Major,
No.1594, East End Road,
Jayanagar 9th Block,
Bangalore - 560 069.
Sri.K.Narasimha Rao,
(Dead)
Not known, Major
No.1594, East End Road,
Jayanagar 9th Block,
Bangalore - 560 069
(Rep. by Sri.P.B.Appaiah.,
Adv.,)
Case instituted : 13.10.2014
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused No.1 and 2 are
acquitted
Date of order : 9.11.2016
3 C.C.No.643/2011 J
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the 1st Accused approached him on 28/09/2007 through his friend one Mr.Sanjay for a hand loan of Rs.40,00,000/= (Rupees Forty Lakhs only) to improve his business TMC Electronics. At that time he had not much amount and therefore he paid the amount of Rs.38,00,000/= (Rupees Thirty Eight Lakhs only) on various dates to the 1st Accused i.e., Rs.10,00,000/= on 28/09/2007, 00,000/= on 07/05/2008 and Rs.24,00,000/= on 01/07/2008 totally amounting to Rs.38,00,000/= and the 1st Accused promised that the said loan amount would be refunded within 2 years and also issued post dated cheques in his favor and also executed two on demand pronotes.
3. The Complainant has further submitted that, after paying the said hand loan amount, the 1st Accused 4 C.C.No.643/2011 J issued four cheques to him on different dates for the discharge of his said hand loan amount the said cheques are as follows:-
Cheque No. Date Amount
160381 07/10/2009 Rs.9,00,000/=
160382 16/10/2009 Rs.9,00,000/=
156325 10/11/2009 Rs.10,00,000/=
160379 18/11/2009 Rs.10,00,000/=
All the cheques drawn on the Bank of Baroda, Byrasandra Branch, Bangalore.
4. The Complainant has further submitted that he arranged the said amount through his brother-in-law viz., R.Lakshman Nayak. After the due date, when he demanded for the said loan amount, the first Accused kept on dragging thte same. By that time his brother-in- law R.Lakshman Nayak also forced him to return the amount, which he informed to the Accused, but the Accused did not turn up and neglected to pay the said hand loan amount.
5 C.C.No.643/2011 J5. The Complainant has further submitted that after several requests from him, the 1st Accused informed him to present the cheque after 20th February 2010 and as per the instructions of the Accused, when he presented all the above said cheques to his bankers, to his utter shock and surprise, all the said cheques got dishonored and returned with shara "Funds Insufficient" on 24/02/2010. Thereafter he got issued a legal notice to the Accused on 18.03.2010 through RPAD as well under UCP, which came to be duly served upon her. But inspite of the receipt of the notice, the Accused has neither replied nor repaid the amount covered under the cheque.
6. The Complainant submits that, the dishonour of the cheques by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
7. The Pre-summoning evidence has been led by the Complainant on 23.12.2010. Prima-facie case has been 6 C.C.No.643/2011 J made out against the Accused and they have been summoned vide order of the same date.
8. The Accused No.2 has appeared before the Court on 17.10.2011, while Accused No.1 has appeared before the court on 22/08/2012 and he has been enlarged on bail. As the Accused No.3 is reported to have died during the pendency of the present proceedings, the case against him has been abated.
9. Thereafter the substance of the accusation has been read over to Accused No.1 and 2, to which they have pleaded not guilty and have claimed the trial.
10. In his post-summoning evidence, the Complainant has examined himself as PW1 and has filed his affidavit, wherein he has reiterated the averments made in the complaint.
P.W.1 has also relied upon the following documentary evidence:-
Ex.P1 to P4 are the cheques, in which, the signatures are identified by P.W.1 as those of the Accused No.1 as per Ex.P1(a) to P4(a) respectively, the Bank memos as per Ex.P5 to P8 respectively, the office 7 C.C.No.643/2011 J copy of the legal notice as per Ex.P9, the 4 Postal Receipts as per Ex.P9(a), the Postal Acknowledgements as per Ex.P9(b) to 9(e) respectively, UCP receipts as per Ex.P10 and 11 respectively, the Complaint as per Ex.P12.
11. In support of the case of the Complainant, a witness by name R.Lakshman Naik, who is the Brother-in-law of the Complainant is examined as PW-
2. In his evidence, PW-2 has deposed that in 2007 the Complainant had sought Rs.39 to 40 lakhs from him, which, he has accordingly paid to him by way of cheque, in respect of which, he has produced his statement of accounts as per Ex.P13. He has further deposed that the Complainant has received the said amount so as to pay the same to his friend i.e., Accused No.1 and 2 and that when he lent amount to the Complainant fourth time, the Accused No.1 and 2 were present. According to him he has paid the amount to the Complainant in his office of T.M.C.Electronics on the Jayanagar East End Main Road and he has denied that Ex.P10 is a created document.
12. When PW-2 has been cross-examined by the learned Counsel for the Accused No.1, he has deposed 8 C.C.No.643/2011 J that, he does Real Estate Business from which he has a monthly income of Rs.1,25,000/- and that in the year 2007 he had only turnover of Rs. 1 Crore to Rs.1.5 Crores, out of it, his income was about Rs.9 lakhs per annum and that in the year 2008, his income as well as turnover for more than that. He has further deposed that since 1996 he has been paying Income Tax, but he has not declared that his alleged lending of the amount to the Complainant in his I.T.Returns.
13. It is admitted by PW-2 that, he has taken an office in the building of the Accused No.1, but he has deposed that he does not remember that there is a Lease Agreement between the Accused No.1 and himself in respect of the said building on 08.08.2007. However, he has admitted that the Accused No.1 has filed O.S.No.6505/2009 against him in the City Civil Court, but he has denied that since 2007, there has been dispute between the Accused No.1 and himself with regard to the said office. It is further denied by him that, the dispute is due to the fact that he has put up a Board of Dalitha Sangarsha Samithi in front of the office without using the same for the purpose, for which, the said shop was leased out to him. He has even gone to the 9 C.C.No.643/2011 J extent of denying that since he is a tenant in the building of the Accused No.1 and the Complainant used to visit his office and through him, the Accused No.1 has come in contact with the Accused No.2. However, according to PW-2, the Complainant and the Accused No.1 are known to each other since earlier times. It is further deposed by PW-2 that, he does financial transactions through the Complainant and also through four to five other persons. It is further admitted by him that, the Accused have not met him and they have not sought any loan from him, but according to him, in 2008 the Accused No.1 had taken loan from him and had repaid the same and with regard to the his alleged lending of the amount to the Complainant, it is claimed by PW-2 that he has paid the amount to the Complainant twice by way of cheque in 2007-08 and during the third time also, he has paid the amount to the Complainant through cheque. According to him, the Complainant informed him that, he paid Rs.38.50 lakhs to the Accused, but he has not enquired about the same with the Accused No.1. Likewise it is also deposed by PW-2 that, he has not enquired from the Complainant, the purpose for which the Accused No.1 availed loan from him and that he has not taken 10 C.C.No.643/2011 J anything as a security at the time of he paying the amounts to the Complainant thrice.
14. With regard to the financial status of the Complainant, it is deposed by PW-2 that the Complainant has good income and that they share that income that they derive in their business and that he has not enquired with the Complainant about his definite income.
15. PW-2 has been cross-examined with regard to one Satish, in respect of whom, he has deposed that he knows the Proprietor of M/S. Save Meditech, by name Satish, but he denied that he has filed a private complaint against the said Satish through the Complainant for the recovery of Rs.63 Lakhs. Likewise he has pleaded ignorance that the Complainant had also filed a private complaint against the said Satish.
16. PW-2 has admitted that, one Mahesh and the Accused No.1 have lodged a complaint against him before the Mico Layout Police Station in Cr.No.709/2008 in which he has been charge-sheeted.
11 C.C.No.643/2011 J17. PW-2 has admitted that there was financial transaction between the Accused No.1 and himself in 2006-07 and at that time the Accused No.1 had issued his cheques to him. But it is denied by him that, the present case has been falsely filed against him through the Complainant, who is his Brother-in-law, by misusing the cheques issued by the Accused No.1 to him in respect of the transaction in the year 2006-07.
18. With regard to the financial status of PW-2, it is not denied by P.W.2 that, he had filed an application to permit him to sue in O.S.No.6505/2009 as an indigent person and though this has not been denied by him, the Accused No.1 has produced the certified copy of the said I.A as per Ex.D8, which goes to show that the said application had been filed by PW-2 in the said case under Order XXXIII Rule 17 R/W.Sec.151 of C.P.C., to permit him to set up a counter claim as an indigent person and in this regard he has also sworn to an affidavit on 16.08.2011.
19. It is admitted by PW-2 that, he has not obtained any license for doing money lending business and that as per Ex.P13, the amount of Rs.24 lakhs which he claims 12 C.C.No.643/2011 J to have paid to the Complainant by way of cheque is not an Account Payee cheque. According to him, he has not produced any document to show that he has paid the balance amount to the Complainant by way of cheques.
20. It is also admitted by PW-2 that, he has not paid the amount to the Complainant through his Account Payee cheques. P.W.2 has also admitted that, in the year 2008, he had filed a complaint against the Accused No.1 under the SC's and ST's (Prevention of Atrocities) Act, but he has denied that before the alleged financial transaction between the Complainant and the Accused No.1, there was ill-will between himself and the Accused No.1.
21. According to him, he had few cheques of the Accused No.1, in respect of the financial transactions that had taken place between the Accused No.1 and himself and he claims that, when the Accused No.1 lodged complaint against him before the Police, he has returned the cheques of the Accused No.1 which were in his possession. However, according to PW-2, he has not obtained any receipt or acknowledgement so as to show that Accused No.1 has taken back his cheques from his 13 C.C.No.643/2011 J possession. Likewise he has not obtained any documents from the Police to show that he has returned the cheques to the Accused No.1 in the Police Station.
22. The statement of the Accused No.1 and 2 under Sec.313 of Cr.P.C., has been recorded on 30.06.2015. They have denied the incriminating evidence found against them and have chosen to lead their rebuttal evidence.
23. The Accused No.2 is examined as D.W.1 on oath u/s.315 of the Cr.P.C., He has deposed in his evidence that the Complainant has falsely claimed that, he has lent a total sum of Rs.38 lakhs to the Accused No.1. He has further deposed that, at that time he was not working in the TMC Electronics Company. His father expired on 13.06.2006 and thereafter on 20.07.2006 the TMC Electronics Company was reconstituted. He has document to prove the same. He has further deposed that he has retired from the Company and that he has not received any amount from the Complainant and that the Complainant has not lodged in his complaint that the Accused No.2 has received the amount from the Complainant.
14 C.C.No.643/2011 J24. It is further deposed by DW-1 that the TMC Electronics Company was established on 08.08.2001 in which his father (Accused No.3) his mother K.K.Krishnakumari himself and his brother i.e., Accused No.1 were the partners and that the financial transaction stated in the complaint has taken place in September- 2007, while he retired from the Firm on 20.07.2006 and therefore he is no way concerned to any financial transaction which has taken place after 20.07.2006 and that the cheques produced by the Complainant in this case are in no way concerned to him.
25. He has produced the Death Certificate of his father as per Ex.D1, Certified Copy of the Reconstitution of the Partnership Deed as per Ex.D2, the Certified Copy of Form No.V as per Ex.D3, the Certified Copy of the Affidavit as per EX.D4, the Certified Copy of Form No.D as per EX.D5, the Certified Copy of the Plaint in O.S.No.7570/2008 as per Ex.D6 and on the basis of the same, he has claimed that he is not liable to pay any amount to the Complainant and accordingly prayed for the dismissal of the Complaint against him.
15 C.C.No.643/2011 J26. During his cross-examination, it is admitted by DW-1 that TMC Electronics is a Partnership Firm, but he has denied that he is one of the partners in the said Firm. According to him he was the Partner in the said Firm from 2001 to 2006 and that they have informed to the Bank with regard to the Reconstitution of the Firm as per Ex.D1 and that there is no account in the name of the Firm in the Bank and he has denied that till date he is one of the partners in the Bank Account till date.
27. With regard to the authority to sign on the cheque, it is deposed by DW-1 that after the Reconstitution of the Firm Accused No.1 has the authority to sign on the same, he has denied that they had sought a loan of Rs.38 lakhs from the Complainant on 28.09.2007 for the purpose of the development of the Accused No.1 Company and that towards the repayment of the same the cheques in question were issued by them to the Complainant. Likewise he has also deposed that the cheques at Ex.P1 to P4 bear the signature of the Accused No.1, but he does not know as to the purpose for which the said cheques were issued by the Accused No.1 to the Complainant.
16 C.C.No.643/2011 J28. Accused No.1 has examined himself as DW-2 and in his evidence, he has deposed that he does not know the Complainant and that he has not done any financial transaction with him and that he has not issued cheques in question to him. According to DW-2 the cheques at Ex.P1 to P4 relate to his Company, which were issued by him to Lakshman Naik (PW-2) in the year 2007, when he had availed a loan of Rs.12 lakhs from the said Lakshman Naik and that he had given the cheques in question has signed blank cheques as a security for the said loan of Rs.12 lakhs. He has also deposed he has repaid the entire loan availed by him from Lakshman Naik along with an interest of 10 to 15%, but even then, the said Lakshman Naik was pressurising him and in respect of the same he filed a complaint against the said Lakshman Naik and one Mahesh before the Mico Layout Police Station.
29. To substantiate his defence version, DW-1 has produced the Certified Copy of the FIR as per Ex.D7, the Certified Copy of the I.A filed by Lakshman Naik in O.S.No.6505/2009 seeking permission to sue as an indigent person in the said suit as per Ex.D8, the Certified Copy of the Order of Anticipatory Bail, granted 17 C.C.No.643/2011 J to him, in respect of a case registered against him under the SC's and ST's (Prevention) of Atrocities Act by the said Lakshman Naik, as per Ex.D9, the Reply Notice as per Ex.D10, the Postal receipt as per Ex.D11 and the Postal Acknowledgement as per Ex.D12.
30. He has further produced the Certified Copy of the Judgment in a case filed against M/s.Save Meditech Pvt., Ltd., and it's Directors by the Complainant as per Ex.D13, the Cheque Book Details as per Ex.D14 and by relying upon these documentary evidence he has prayed for his acquittal.
31. DW-2 has also been cross examined by the Learned Counsel for the Complainant. No doubt in his cross-examination, he has admitted that the cheques at Ex.P1 to P4 relate to his Company and they bear his signatures and that he was authorised to sign on the cheques of their Company.
32. It is further elicited from DW-1 that after the Reconstitution of the Firm he has not given any letter to the Bank for the closure of the Bank Account and he has 18 C.C.No.643/2011 J admitted that one Vidya James had filed the case against him in CC.No.32201/2009.
33. It is seen that inspite of given sufficient opportunities the learned counsel for the Complainant has not addressed his arguments.
34. The learned defence counsel for the Accused No.1 has argued for the acquittal of the Accused No.1 on the ground that the Complainant has admitted that he had no single pie to lend and therefore according to him he borrowed the amount from his brother-in-law through cheques and lent the same to the Accused. But this has not been proved through any cogent evidence. The Accused admits having availed loan from P.W.2, but not from P.W.1, who is an utter stranger to them. It is further argued that there is rift between the Accused No.2 and P.W.2 since 2007 and therefore a suit for ejectment is filed by the Accused No.2 against P.W2 and the same is pending and P.W.2 has been admittedly charge-sheeted in respect of a complaint lodged against him by the Accused No.2. It is further argued that the Complainant has failed to prove the existence of the legally enforceable debt as well as his financial capacity. There are total 19 C.C.No.643/2011 J contradictions in the evidence of P.W.1 and P.W.2 about the dates of the issuance of the cheques and the documents produced by him proves the conduct of the Complainant as well as P.W.2. It is further argued that P.W.2 is a Professional Money lender without license. Thus it is also argued that the Complainant has initiated this case fraudulently with criminal conspiracy with P.W.2 and therefore the Accused No.1 is entitled to an order of acquittal.
35. The learned defence counsel for the Accused No.2 has also argued for the acquittal of Accused No.2 on the ground that the complaint itself is not maintainable, since TMC Electronics is not made a party to the proceedings. The signatures on Ex.P9 are not those of the Accused No.2. The Legal notice is reported to have been served on Accused No.3, who had already died on 13/06/06. The alleged transaction is of the year 2007, while the Accused No.2 had already retired from the partnership firm from 20/07/06. There is no single allegation against the Accused No.2in the legal notice and that only the Accused No.1 is the signatory to the cheques at Ex.P1 to P4. It is the Accused No.1 who is the authorized signatory from 20/07/06. Hence it is argued 20 C.C.No.643/2011 J that the Accused No.2 is not liable to pay any amount under the cheques and accordingly prayed for the acquittal of the Accused No.2.
36. I have considered the submissions and perused the record carefully.
37. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards the payment of the amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section 138.
38. The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
21 C.C.No.643/2011 J39. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
40. Also, Sec. 118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) that every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
41. Thus, the Act clearly lays down the presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused, towards the discharge of his liability in favour of the Complainant.
22 C.C.No.643/2011 J42. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
43. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
44. The first defence raised by the Accused No.1 and 2 in this case is that, they know only P.W.2 and not the Complainant.
In this regard it is deposed by P.W.1 that the Accused were introduced to him by M.G.Sanjay in the year 2007 on the ground that they were doing the business of Car Accessories, but he has not visited the office of the Accused and that he came to know that the Accused were running the TMC Electronics as per the say of the said Sanjay and that he has not personally visited their office. This admission on the part of P.W.1 is sufficient to hold that the defence of the Accused that they do not P.W.1 is proved.
23 C.C.No.643/2011 J45. The next defence of the Accused is that the Complainant has failed to prove his financial capacity.
According to the Complainant he has advanced a total loan of Rs.38,00,000/= to the Accused when they approached him through his friend Sanjay and that as he did not have so much amount, he paid the same to them on different dates by way of part payments commencing from 28/09/2007 to 01/07/2008.
46. In his cross examination P.W.1 has admitted that he was earlier working in the MICO Company, where he left his job in the year 2006 and though he has claimed that he had received Rs.7.5 lakhs through cheque, he has no document to prove the same.
47. According to P.W.1 he has arranged the said amount from his brother-in-law Sri.Lakshman Nayak. P.W.1 has claimed that on 28/09/2007, he lent Rs.10 lakhs to the Accused in cash, by he, in turn availing the same from his brother-in-law Sri.Lakshman Nayak. According to him he has no personal knowledge about the source in which the said amount was arranged by his brother-in-law Sri.Lakshman Nayak.
24 C.C.No.643/2011 J48. P.W.1 has further claimed that he has lent Rs.24 lakhs on 1/7/08 and Rs.4 lakhs on 7/5/08, by he inturn receiving the same from his brother-in-law Sri.Lakshman Nayak. With regard to these amounts also, it is deposed by P.W.1 that he has no personal knowledge about the source in which the said amounts were arranged by his brother-in-law Sri.Lakshman Nayak. P.W.1 was categorically admitted that he did not have his independent funds so as to lend it to the Accused. Further according to P.W.1 that his brother-in-law Sri.Lakshman Nayak lent the aforesaid amounts to him by way of cheques, which he got encashed, but he has no document to prove the same.
49. In this regard though P.W.2 has produced his statement of accounts as per Ex.P13, the said document only shows entry relating to Rs.24,00,000/= dated 1/7/2008 but not about the other two alleged cheque transactions. Therefore the admission on the part of P.W.1 that there is no document to show that his brother-in-law Lakshman Nayak had advanced to him the amounts of Rs.10 lakhs on 28/09/2007, Rs.28 lakhs on 1/7/2008 and Rs.4 lakhs on 7/5/08 goes to show 25 C.C.No.643/2011 J that the said fact has not been proved by the Complainant.
50. At this juncture it is also necessary to consider as to if the brother-in-law of the Complainant/P.W.2 from whom the Complainant claims to have taken the above said amounts and in turn to have lent them to the Accused has proved his financial capacity before the court.
51. In this regard it is elicited from P.W.2 that he does real estate business and has a monthly income of about Rs.1,25,000/= and in the year 2007 he had an annual turnover of Rs.1 to 1.5 crores, out of which his income was about Rs.9 lakhs. But P.W.2 has claimed that he has not declared about he having allegedly lent the amount to the Complainant in his IT Returns. According to P.W.2 the Complainant has good income and that he and the Complainant share the income that they derive in their business. If this were to be true, then a question arises as to what was the need for the Complainant to avail loan from P.W.2 and thereafter lend the same to the Accused, who are admittedly neither his friends nor close relatives.
26 C.C.No.643/2011 J52. Another crucial factor to be noted is that P.W.2 has not denied that in O.S.No.6505/09, in which he has filed a counter claim, he has filed an I.A to declare him as an indigent person. This is proved by the Accused through Ex.D8, which is the certified copy of the I.A.under Order 33 Rule 17 r/w. Sec.151 of the CPC, in which P.W.2 has sworn to an affidavit before the said court that he has suffered huge loss in his business and therefore he is not possessed of sufficient means in order to pay the prescribed fee towards his counter claim in the said suit. This affidavit is sworn on 16/08/2011, while P.W.2 claims to have advanced 28/09/2007, Rs.28 lakhs on 1/7/2008 and Rs.4 lakhs on 7/5/08 to the Complainant. Hence this is sufficient to hold that both the Complainant as well as P.W.2 have failed to prove their respective financial capacities before the court.
53. Further it is also pertinent to note that P.W.2 has claimed that he has not collected any document from P.W.1 in respect of his alleged lending of Rs.38 lakhs to the latter. Though both of them claim that they are closely related to each other, it cannot be believed that a huge sum of Rs.38 lakhs could have been lent by P.W.2 to P.W.1 without taking any document for security and 27 C.C.No.643/2011 J that too without even knowing the purpose for which the Complainant was taking the said loan amount. Further P.W.1 has also claimed that he has not repaid the said amount of Rs.38 lakhs to P.W.2. But even if the version of the Complainant that he borrowed Rs.38 lakhs from P.W.2 is believed, then nothing prevented P.W.2 to pay the said amounts through account payee cheques. Having not done so, it is highly impossible to believe the said version of the Complainant claiming to have borrowed a sum of Rs.38 lakhs from P.W.2.
54. Now coming to the next aspect, about the dates of issuance of the cheques by the Accused:-
According to P.W.1 as stated by him in affidavit as well as in the Complaint is that, after he allegedly paying the hand loan amount to the Accused, they issued post dated cheques to him and also 2 on demand pronotes. But none of the on demand pronotes have been produced by P.W.1. According to P.W.1 as stated by him in his affidavit, the Accused issued the following 4 cheques to him on different dates as follows:-
Cheque No. Date Amount
160381 07/10/2009 Rs.9,00,000/=
28 C.C.No.643/2011 J
160382 16/10/2009 Rs.9,00,000/=
156325 10/11/2009 Rs.10,00,000/=
160379 18/11/2009 Rs.10,00,000/=
55. While in his cross examination P.W.1 has deposed that the Accused have issued 2 cheques in October 2009 and 2 cheques in November 2009. He has admitted that he has not produced the promissory notes alleged to have been executed by the Accused before the court. If the Accused had really executed any such pronotes, nothing prevented P.W.1 from producing them before the court. Therefore this conduct on the part of P.W.1 leads to an adverse inference against him.
56. Further it is claimed by P.W.1 that he has collected cheques from the Accused on the day of his alleged lending of Rs.24 lakhs to them. That means it is on 1/7/2008. This goes to show that there is total inconsistency in the case of the Complainant about the dates on which the cheques in question were collected by him from the Accused. Therefore this raises a serious doubt in the case of the Complainant.29 C.C.No.643/2011 J
57. The next defence of the Accused is with regard to their relationship with the brother-in-law of the Complainant, Lakshman Nayak/P.W.2:-
In this regard the Accused have admitted their acquaintance with P.W.2. But P.W.1 has pleaded ignorance as to if the Accused and P.W.2 were known to each other. He has also pleaded ignorance as to if the Accused No.1 is the owner of the building in which P.W.2 has taken a shop on rent and that there are civil and criminal cases pending between them. However P.W.2 has admitted in his cross-examination is that he is a tenant under the Accused No.1 on lease and that there is O.S.no.6509/09, a suit for ejectment filed against him by the Complainant and that the same is pending. But he has denied that there has been a complaint lodged by him against P.W.1 as per Ex.D9 under the SC's and ST's (Prevention of Atrocities) Act. Though P.W.2 has denied that there has been ill will and strained relationship between he and the Accused, the documentary evidence at Ex.D7 and D9 proves the same.
58. Likewise the Accused have taken up the chief defence that there had been financial transaction between the Accused No.1 and P.W.2 in September 2007 30 C.C.No.643/2011 J to an extent of Rs.12 lakhs and that towards the security of the said loan, the cheques in question were issued by the Accused No.1 as signed blank cheques, without mentioning the date and the month on them and though he has repaid the said loan amount together with interest, P.W.2 has misused the said cheques and got filed this false case against them through his relative, the Complainant herein. In respect of this defence, it is admitted by P.W.2 that there was a financial transaction between he and the Accused No.1 and that few cheques of the Accused No.1 were in his possession. But according to him, the Accused No.1 has collected the said cheques from his possession in the Police Station by lodging a complaint. But he has admitted he has not collected any document either from Accused No.1/ or from the Police for having returned his cheques to him in the Police Station. Therefore in the absence of proof to show that the cheques of the Accused No.1 were returned to him in the Police Station, this claim of P.W.2 cannot be accepted and believed by this court. But this admission on the part of P.W.2 is sufficient to believe and accept the defence of the Accused No.1 that there was financial transaction between them and that the Cheques of the 31 C.C.No.643/2011 J Accused were in his possession. Therefore this defence version clearly probabalises the defence of the Accused that the cheques in question have been misused by P.W.2 through his relative/P.W.1 and a false case has been filed against them.
59. The last defence of the Accused No.2 is that, as on the date of the alleged loan transaction, he was not at all the partner in the firm of the Accused and that it was the Accused No.1 who was the authorized signatory of the firm.
Though in this regard P.W.1 has pleaded ignorance, he has not denied that after the death of the Accused No.3, the firm was reconstituted. This is clearly proved by the Accused No.3 through the documentary evidence at Ex.D1 to D5. Therefore this clearly goes to show that as on the date of the alleged transaction the Accused No.2 was not at all the partner or the authorized signatory of the firm and he has been falsely implicated in this case.
60. Further the Accused have also taken up a defence that the Complainant has also filed a cheque bounce case against one Sathish for Rs.63 lakhs.
32 C.C.No.643/2011 JThough this has been denied by P.W.1 the same has been proved by the Accused No.1 through Ex.D13, which is the certified copy of the judgment in C.C.No.19303/2012, which was a case filed by P.W.1 against one M/s.Save Meditech Pvt., Ltd., r/by it's Director Sri.B.V.Satish and his wife Smt.Seemaraj.
61. Likewise the documentary evidence at Ex.D14 shows that the cheques bearing No.160379 to 160382 were used in November 2011 and that the same have been shown to have been issued to P.W.2. Interestingly neither P.W.1 nor P.W.2 has disputed this document. Therefore this defence version of the Accused has remained unchallenged.
62. The last defence of the Accused is that when the relationship between them and P.W.2 was admittedly strained in the year 2008 itself, then it could not be believed and imagined that, he could have advanced loan to an extent of Rs.38 lakhs to the Complainant, so as to lend the same to the Accused and that too without even enquiring about the purpose of such loan.
33 C.C.No.643/2011 J63. This defence is very much probable because no person would lend even a single pie when he does not have cordial relationship with the borrower. Therefore this defence is also available to the Accused.
64. By appreciating the entire evidence available on record, it is clear that, though the Accused has issued the cheque in question in favour of the Complainant towards the repayment of the legally enforceable debt, she has tried to probabalise her defence by taking up a vague defence, but has ultimately failed to succeed. On the other hand the Complainant has proved his case beyond reasonable doubt.
65. Thus for the reasons discussed above, I proceed to pass the following: -
ORDER By exercising the power conferred u/s 265 of the Cr.P.C., the Accused No.1 and 2 are hereby acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act.
Their bail bonds and surety bonds stand cancelled.34 C.C.No.643/2011 J
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 9th day of November, 2016).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:
PW.1 : T.Vijaykumar; PW.2 : R.Lakshman Naik.
2. List of documents exhibited on behalf of the Complainant:
Ex.P-1 to P4 : Original Cheques; Ex.P-1(a) to : Signatures of the Accused No.1; P4(a) Ex.P-5 to P8 : Bank memos; Ex.P-9 : Office Copy of the Legal Notice; Ex.P-9(a) : Postal receipts;
Ex.P-9(b) to (e) : Postal acknowledgements;
Ex.P10 and 11 : UCP Receipts; Ex.P12 : Complaint.
3. List of witnesses examined on behalf of the Accused:
D.W.1 : Sri.K.Srinivas Rao;
D.W.2 : Sri.Venugopal Rao Kureti.35 C.C.No.643/2011 J
3. List of documents exhibited on behalf of the Accused:
Ex.D1 : The Death Certificate of the father of the Accused No.1 and 2;
Ex.D2 : The Certified Copy of the Reconstitution of the Partnership Deed;
Ex.D3 : The Certified Copy of Form No.V; Ex.D4 : The Certified Copy of the Affidavit; Ex.D5 : The Certified Copy of Form No.D; Ex.D6 : The Certified Copy of the Plaint in O.S.No.7570/2008 Ex.D7: The Certified Copy of the FIR; Ex.D8 : The Certified Copy of the I.A filed by Lakshman Naik in O.S.No.6505/2009; Ex.D9 : The Certified Copy of the Order of Anticipatory Bail;
Ex.D10 : The Reply Notice;
Ex.D11: The Postal receipt;
Ex.D12: The Postal Acknowledgement card.
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.