Bangalore District Court
Gangadharaiah.H.A vs N.Durgoji Rao on 9 July, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 9th day of July - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.17630/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Gangadharaiah.H.A,
S/o.Late.Anadhani,
Aged about 46 years,
R/at No.69, 2nd Main,
2nd Cross, Srinivasanagar,
Sunkadakatte, Bengaluru-91.
(Rep. by Sri.D.M.Girish, Adv.)
V/S
Accused : N.Durgoji Rao,
S/o.Late.Narasimhamurthy,
Aged about 58 years,
No.24, 7th Cross, 2nd Main,
Srinivasanagar, Sunkadakatte,
Bengaluru-91.
(Rep.by Sri.M.K.Venkatesh, 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 : 09.07.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.17630/2018
JUDGMENT
The complainant has presented the instant complaint against the accused on 04.06.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.3 lakhs.
2. The facts raised by the complainant in the present case is as follows:
The complainant and accused are being friends and well acquainted each other from past several years. In that acquaintance, the accused had approached the complainant during the 2nd week of November, 2017 and had requested the financial assistance for sum of Rs.3 lakhs to solve his stringent financial commitments and also to clear the hand loans availed by 3rd parties. Considering the request and financial requirement, the complainant had agreed to pay the same and during the 3rd week of November, 2017, he paid sum of Rs.3 lakhs to the accused by way of cash. The accused undertakes to repay the same within 4 months.
The complainant has averred and alleged that, accused had paid 2 months interest as agreed and further failed to pay the interest as well as principal amount. Things stood thus, the complainant had approached the accused during 1st week of April, Judgment 3 C.C.No.17630/2018 2018, after due negotiations, the accused had paid interest amount and for the principal amount of Rs.3 lakhs, the accused got issued cheque bearing No.343446 dated:19.04.2018 drawn on Vijaya Bank, Race Course Road Branch, Bengaluru-01, and requested to present it for encashment.
The complainant has further alleged that, at the assurance of accused, he presented the said cheque for encashment through his banker viz., Apex Bank, Deepak Sahakari Bank Ltd., Vijayanagar Branch, Magadi Road, Bengaluru-23. But to utter shock and great surprise, the said cheque came to be dishonoured as per memo dated:23.04.2018 stating "Account Closed". Though, the accused got issued the questioned cheque for discharge of his liability, the same came to be dishonoured. Even though, the complainant had personally informed to the accused about the same, the complainant requested to repay the cheque amount by way of cash or demand draft, but not bothered for the same. Hence, on 10.05.2018, he got issued legal notice to the accused, calling upon him to pay the amount covered under the cheque by R.P.A.D, the same got served upon accused on 14.05.2018. After receipt of legal notice, the accused got issued untenable reply, but not paid the cheque amount. Thereby, he Judgment 4 C.C.No.17630/2018 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 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 P7(a). The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D1 to D4 and also Judgment 5 C.C.No.17630/2018 subjected for cross-examination by the advocate for the complainant.
7. The complainant counsel has submitted his detailed written arguments. The accused counsel not addressed his side 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.3,00,000/- in the 3rd week of November, 2017 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.343446, dated:19.04.2018 for sum of Rs.3,00,000/- drawn on Vijaya Bank, Race Course Road 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.17630/2018
REASONS
UNDISPUTED FACTS
10. On going through the rival contentions of the parties, the fact that, the cause title addresses of the complainant and accused mentioned in the complaint is not in dispute. The fact that, accused was working as Attender in the office of CID at Bengaluru is not in dispute. The fact that, the questioned cheque and signature therein is of him is not in dispute. The fact that, the exchange of notices between complainant and accused as per Exs.P3 and P6 is not in dispute. The fact that, after receipt of legal notice at Ex.D3, on the very same date of issue reply as per Ex.P6, the accused lodged complaint before the Commissioner of Police, Bengaluru as per Ex.D1 and the police in turn, got issued endorsement as per Ex.D2 with regard to supply of attendance register extract of the accused is not in dispute. The fact that, as per Ex.D3, Syndicate Bank got issued intimation of letter of sanction of loan for the tune of Rs.1,96,240/- in the name of daughter of accused and the copy was also sent to the name of accused as found in Ex.D3 is not is not in dispute. The fact that, the accused and his daughter got singed for the letter of sanction is not in dispute. The fact that, as per Ex.D4 the statement of Judgment 7 C.C.No.17630/2018 account is pertaining to the account of accused's daughter -
Pallavi Bai.D is not in dispute.
11. 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 P7(a), they are:
a) Ex.P1 is the cheque bearing No.343446 issued by the accused for sum of Rs.3,00,000/-
dated:19.04.2018, drawn on Vijaya Bank, Race Course Road Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:23.04.2018.
d) Ex.P3 is the Legal Notice dated:10.05.2018.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the track consignment issued by postal authority.
g) Ex.P6 is the reply notice dated:18.05.2018 issued by accused through his counsel to the complainant counsel.
h) Ex.P7 is the private complaint.
i) Ex.P7(a) is the signature of complainant.
12. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case the complainant Judgment 8 C.C.No.17630/2018 through his counsel has produced the citations and relied upon same, they are;
a) 2018 (8) SCC 165
b) AIR 2019 SC 1983
c) 2015 SCC 622
d) 2010(11) SCC 441
e) 2015 (4) KCCR 2881 (SC)
f) 2015 (1) KCCR 235
g) 2019 KLR 847
13. In order to prove the defence of the accused, he himself choosen examined orally as DW.1 and produced documents at Exs.D1 to D4. They are:
a) Ex.D1 is the copy of complaint dated:18.05.2018 lodged by accused herein before the Police Commissioner, Infantry Road, Bengaluru against complainant herein.
b) Ex.D2 is the letter and copies of attendance register extract dated:01.07.2009.
c) Ex.D3 is the education loan sanction letter dated:18.12.2012 pertaining to Syndicate Bank.
d) Ex.D3(a) and D3(b) are the signatures of accused and his daughter by name Pallavi Bai.D and
e) Ex.D4 is the statement of account pertaining to Pallavi Bai.D for the period from 01.01.2014 till 25.03.2019.
Judgment 9 C.C.No.17630/2018 The DW.1 was subjected to the cross-examination by the advocate for the complainant.
14. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
15. In this case, the complainant has not choosen to examine any of the witness. Thereafter, the cross-examination of PW.1, 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 by stating that:
In the year 2016, when he was suffering from Kidney problem, his wife Sunanda Bai had borrowed sum of Rs.40,000/- from the complainant on the security of his signed blank cheque. The said loan got cleared with interest on 10 installments. The entire amount has been repaid by the accused to the complainant. The complainant despite, assured to return the cheque, without returning the same, by filed the false case. Hence, he is not liable to pay the money covered under the cheque.
16. That apart, the accused entered into witness box, on oath examined as DW.1 orally he deposed that, the accused did not Judgment 10 C.C.No.17630/2018 seen the complainant and he is stranger to him. As alleged in the complaint, he not borrowed Rs.3 lakhs loan during the 3rd week of November, 2017 and as he said, not paid any interest and not issued cheque for Rs.3 lakhs to the complainant.
17. The accused has specifically deposed that, his daughter by name Lakshmi was studied B.Com, for payment of her college fee at the request of his wife, he gave singed blank cheque to his wife, but she took the loan of Rs.40,000/- from the complainant on gave singed blank cheque to the accused as security. The wife of accused got cleared the said loan with interest and compound interest. Accordingly, the entire amount got cleared his wife, though, he not returned the questioned cheque to the complainant. Since, the accused suffering from Kidney problem, his wife was looking after his house. After got receipt of cheque bounce notice, he gave complaint to the Commissioner Office and in turn, it was referred to Kamakshipalya Police Station. Wherein, the police came to his house and informed that, since matter is pending before the court got decide in the court itself. The accused not liable to pay the amount covered under the cheque and the complainant himself got filled the same and filed the false case against accused, the same, he lodged complaint to the Police Station as per Ex.D1 and in turn, the police got issued the Judgment 11 C.C.No.17630/2018 endorsement as per Ex.D2. The accused also produced the document at Ex.D3, which is none other than he applied for loan before the Syndicate Bank, which has granted him and the signatures of the accused and his daughter Pallavi got marked at Ex.D3(a) and D3(b) and bank statement got marked at Ex.D4. The accused to show that, as on the alleged date of borrowal of loan, he was on the duty got produced the Xerox copy of attendance register extract, since, it is a copy, it was refuse to mark and hence, he prayed for his acquittal. The DW.1 was subjected to the cross-examination by the advocate for complainant.
18. On going through the contentions of the complainant, it made clear that, based on the questioned cheque he brought the present case stating that, for discharge of existence of legally recoverable debt, the accused got issued the Ex.P1-cheque, the same came to be dishonoured for the reasons account closed, despite, he gave legal notice, not paid the amount and claimed thereby, accused committed the offence punishable under Section 138 of Negotiable Instruments Act. No doubt, as per Sections 118 and 139 of Negotiable Instruments Act, initial statutory presumption shall be drawn in favour of complainant, as to the Judgment 12 C.C.No.17630/2018 accused was issued by the accused for discharge of existence of legally recoverable debt, unless and until contrary prove.
19. On going through the said provision it made clear that, the rider creates burden on the accused to prove his probable defence in order to rebut the statutory presumption as well as the case set out by the complainant. In the case on hand, the accused has not admitted the claim of complainant including handed over the questioned cheque to the complainant, but he denied the knowingness of complainant and borrowing of alleged loan of Rs.3 lakhs during 3rd week of November, 2017 from the complainant, as he alleged and payment of interest as he contended and got issuance of questioned cheque for discharge of liability. It was the specific defence of the accused that, in the year 2016, he was suffering from Kidney problem he was not look after his family affairs, only his wife to care of it. Accordingly, for payment of college fee of one daughter of the accused by name Lakshmi, his wife Shantha Bai took his signed blank cheque and offered the same to the complainant and received loan of Rs.40,000/- on interest on the security of signed blank cheque of the accused. Later, his wife got cleared the said loan with normal and compoundable interest and got cleared the said loan. Despite, she asked for return of the said cheque, the accused not Judgment 13 C.C.No.17630/2018 returned the same, but filed the false case by mentioning higher amount.
20. No doubt, the accused is working employee is can be seen from the admission made by the complainant as well as the particulars furnished by the accused. It is significant fact to note that, to show that, the accused is a working employee and he was working during December, 2017, he furnished the attendance register extract in Xerox coupled with its genuineness report furnished by the IGP of CID dated:01.07.2019. No doubt, this court while mark the said document, since the attendance register extract appears to be Xerox, it was refuse to mark. On going through the Ex.D1, it made clear that, the IGP has clearly admitted, it was issued attached Xerox copy of the attendance register extract pertaining to the accused, therefore, it is just and proper to take judicial note of the same, otherwise no purpose would serve in production of Ex.D2.
21. On meticulous perusal of the Ex.D2 along with the attached Xerox copy of attendance register extract, wherein, it discloses the name of accused. On meticulous perusal of the said attendance register extract pertaining to the month of November, 2017, in the whole month, the accused only took CL on Judgment 14 C.C.No.17630/2018 03.11.2017 and RH on 04.11.2017. Except that, in the remaining days including as alleged by the complainant during the 3rd week, he not availed any leave. Accordingly, in the month of December, 2017, the attendance register extract discloses, during the said money, the accused only availed 3 days CL on 28.12.2017 to 30.12.2017, except that, he not availed any CL. On meticulous perusal of the attendance register extract, it made clear that, the accused has alleged by the complainant as he received Rs.3 lakhs from him during 3rd week of November, 2017, definitely, as the office time of the accused was since morning at least 10.00 a.m. to 5.30 p.m. Definitely, by applying leave, he approached the complainant and borrow the loan as alleged by the complainant does not arise. The attendance register extract discloses that, the accused was on duty on the working days during those period. Therefore, by jump the duty of the Attender, he came to the house of complainant and borrow the loan is highly improbable. By way of production of Exs.D2 and attached document, the accused has proved his plea of aliphi. Ex.D2 is the crucial document which depicts that, as alleged by the complainant during 3rd week of November, 2017, he was on duty. Thereby, it is the complainant has to demonstrate, exactly on which day, the accused came to his house and borrowed the loan. But no pleading in that regard, Judgment 15 C.C.No.17630/2018 nor explanation is forth coming from his side during his cross- examination. In that regard, there was cross-examination done, the relevant portion of cross of PW.1 runs thus:
"DgÉÆæUÉ £Á£ÀÄ 2017 gÀ £ÀªÉA§gï 3 £Éà ªÁgÀzÀ°è gÀÆ.3 ®PÀëªÀ£ÀÄß £ÀUÀzÁVAiÉÄà £À£Àß ªÀÄ£ÉAiÀįÉèà DgÉÆæ M§âgÉà §AzÀÄ ¨É½UÉÎ 10.30 UÀAmÉUÉ §AzÀÄ ¥ÀqÉzÀÄPÉÆArzÀÝgÀÄ. D ¸ÀAzÀ¨Àsð £À£Àß ºÉAqÀw PÀÆqÀ EzÀÝgÀÄ."
22. On going through the said testimony of PW.1, in the cross- examination also he asserted that, during 3rd week of November, 2017, he got paid Rs.3 lakhs loan to the accused in cash in his house. He also deposed that, accused alone came at 10.30 a.m., by that time the complainant's wife was also present. If at all, the complainant does not remember the date, on which basis he assist, claiming to be paid huge amount without any security documents needs to explain, as the accused strongly denied the same. But no such explanation through out the case forth coming. Rs.3 lakhs is not a small amount, since it is huge amount, it was the complainant expected to pay the said money by way of demand draft or cheque as per Section 69 of SS of Income Tax Act, but he did not do so. However, in the absence of documentary evidence, it is the oral evidence is required to Judgment 16 C.C.No.17630/2018 establish as to, on which date, on whose presence he paid money to the accused, but the same particulars lacks. Though simply stated, it was paid in the home at 10.30 a.m. is not enough, as the accused by way of got produced Ex.D2 made clear, during the 3rd week of November, 2017, he was on duty. Hence, return from his office and got received money from the complainant is highly impossible, as by that time he was engaged with his work. It is pertinent to note that, the PW.1 has deposed, by that time his wife was present. If so, definitely, she was the best eye witness, she ought to have examine before this court. But the complainant in the absence of furnish best particulars, as to the alleged lent of loan, he needs to examine her, but for the reasons better known to him, not did so, is one of the strong doubtful circumstances made out by the accused to disprove the version of PW.1.
23. That apart, in the further cross-examination of PW.1, he deposed that:
"CzÉà wAUÀ¼À JgÀqÀ£Éà ªÁgÀzÀ°è DgÉÆæ £À¤ßAzÀ gÀÆ.3 ®PÀë ©E ªÁå¸ÀAUÀPÉÌ ¸Á® PÉýzÀÝgÀÄ. £Á£ÀÄ CµÀÄÖ ºÀt KvÀPÉÌ JAzÀÄ PÉýzÁUÀ ¤ªÀÈwÛAiÀiÁzÀ §½PÀ PÉÆqÀÄvÉÛãÉAzÀÄ ºÉýzÀÝgÀÄ. ªÀiÁUÀr §½ eÉÆÃrºÉƸÀºÀ½î UÁæªÀÄzÀ°ègÀĪÀ D¹Û¬ÄAzÀ CrPÉ ªÀiÁgÁl ªÀiÁr ¸ÀĪÀiÁgÀÄ gÀÆ.4 ®PÀë ElÄÖPÉÆArzÉÝ£ÀÄ, D ¥ÉÊQ gÀÆ.3 ®PÀë Judgment 17 C.C.No.17630/2018 PÉÆnÖzÉÝ£ÀÄ. D ºÀt §rØ gÀ»vÀªÁV PÉÆnÖzÉÝ£ÀÄ. 4 wAUÀ¼À°è DgÉÆæ ªÀÄgÀ½¸ÀĪÀÅzÁV w½¹zÀÝgÀÄ. D jÃw DgÉÆæ £À£ÀߣÀÄß ºÀt PÉý®è, £Á£ÀÄ AiÀiÁªÀÅzÉà ¸Á®ªÀ£ÀÄß PÉÆnÖ®è JAzÀgÉ ¸ÀjAiÀÄ®è. CrPÉ ªÀiÁgÁl ªÀiÁr £À£Àß §½ ºÀt EzÀÝ §UÉÎ zÁR¯É ºÁdgÀÄ ¥Àr¹®è. £Á£ÀÄ ªÀåªÀ¸ÁAiÀÄ ªÀiÁqÀÄwÛzÀÄÝ, ¥sÉÆèÃgï «Ä®è£ÀÄß PÀÆqÀ ºÉÆA¢zÉÝãÉ. DgÉÆæUÉ gÀÆ.3 ®PÀë ¤ÃrzÀ §UÉÎ £À£Àß §½ zÁR¯É E®è. rr ªÀÄvÀÄÛ ZÉPï£À ªÀÄÄSÁAvÀgÀ ºÀt ¤ÃqÀ¨ÉÃPÀÄ JA§ CjªÀÅ £À£ÀUÉ E®è, ªÀÄ£ÉAiÀįÉèà EzÀÝ PÁgÀt £ÀUÀzÁVAiÉÄà PÉÆnÖzÉÝ£ÀÄ. DgÉÆæUÉ gÀÆ.3 ®PÀë ¸Á® ¥ÀqÉAiÀÄĪÀ CUÀvÀå E®è, £À£ÀUÉ CµÀÄÖ ºÀt ¸Á® ¤ÃqÀĪÀ ¸ÁªÀÄxÀåð £À£ÀUÉ E®è JAzÀgÉ ¸ÀjAiÀÄ®è."
24. The PW.1 in the complaint has alleged that, the accused for meet out his stringent financial commitments and also to clear his hand loan availed from the 3rd parties, he borrowed loan. From the said pleading, it made clear that, the complainant has projected that, to solve the stringent financial commitments or to clear the 3rd party loans held by the accused claimed to be paid the alleged loan. If so, definitely, with whom the accused had loan and what was his stringent commitment faced by the accused is not discloses in the pleading or produce any material. In the cross-examination of PW.1 reproduced above, he stated that, the accused during 2nd week asked for loan for Rs.3 lakhs for the Judgment 18 C.C.No.17630/2018 purpose of B.E education of his daughter. The accused has denied borrowal as well as the very purpose of borrowing loan and to disbelieve the version of complainant he got produced Ex.D3 - letter of loan sanction issued by the Syndicate Bank dated:18.02.2012.
25. On meticulous perusal of the Exs.D3 and D4, it made clear that, one of the daughter of the accused by name Pallavi Bai.D, on the security of accused herein got obtained the loan of Rs.1,96,240/- for her Engineering in Computer Science for 3 years course education. The Ex.D3 made clear that, at least as found in Ex.D3, she pursued her Computer Science Engineering course for the period of 3 years, during 2012 till 2014-15. Therefore, it made clear that, when daughter of accused by name Pallavi Bai.D already by secured education loan from the bank and got completed the education by the time of November, 2017. Therefore, again for the purpose of B.E., Education of one of daughter of the accused, no need to approach the complainant to borrow the huge loan of Rs.3 lakhs. Therefore, in view of documentary evidence produced at Ex.D3 - loan sanction letter and bank statement at Ex.D4, it made clear that, she already availed the said loan facility and pursued her computer science 3 years engineering course. Hence, the version of the PW.1 for the Judgment 19 C.C.No.17630/2018 purpose of did B.E., education, she borrowed loan is ruled out, as contended by the complainant.
26. It was also suggested that, whenever the complainant asked why that much money is required, then accused told him that, after got requirement would repay the same. If at all, on the security of the accused being he worked as Attender, it is the complainant must known when he is going to retired. The deposition of DW.1 discloses, as on the date of he entered into witness box on 04.07.2019, he was aged 61 years. Then the alleged loan was lent during 3rd week of November, 2017. By that time, what was the age of accused. If at all considered as it was 59 years, was it his contention that, as pleaded in the complaint he lent loan for the period of 4 months is also not properly explained. If at all, the complainant lent loan to the accused with a direction to return the same, after his retirement, definitely, duration was not of 4 months as pleaded by the complainant. From that point also the very transaction creates doubt.
27. The accused counsel was suggested to PW.1 that, as alleged by the complainant, no such loan was borrowed by the accused. Even suggested that, the complainant had no sufficient fund. To the same, the PW.1 has deposed that, by sold his Judgment 20 C.C.No.17630/2018 Areca-nut crop grown in his property situated at Jodihosahalli Village, he got received Rs.4 lakhs. Out of which, paid Rs.3 lakhs to the accused, that too, without interest. First of all, to show that, he gathered that much amount of Rs.4 lakhs income by sold his Areca-nut crop definitely, necessary document could have been produce before this court. To show that, either he had garden plant as such, or Areca-nut crop worth of Rs.4 lakhs, how he received, could have place document and in that regard, admittedly, no document is been placed. Earning of Rs.4 lakhs by sold Areca-nut crop is not a small thing. All that transaction should made through written document as amount involved in huge. But in that regard, no document is been placed or any witness, as to show the complainant got received Rs.4 lakhs is been examined.
28. That part, in the deposition he stated, he lent loan to the accused without any interest, contrary to his own pleading. In the pleading, he stated, the accused earlier got paid 2 months interest and later failed. Thereafter, due negotiations were held with accused, then he paid the interest amount for the principal loan of Rs.3 lakhs. If at all, he got received interest as such, from time to time as he pleaded, what was the amount he so received, what percentage of interest imposed on the accused and what amount Judgment 21 C.C.No.17630/2018 of interest has been paid by the accused to him is not been explained. Contrary to his pleading, the PW.1 has deposed, he lent loan without an interest, it contradicts the case of complainant is also one of the ground to creates doubt as to the bonafidness of the complainant. Though, the PW.1 has deposed by sold Areca- nut crop as well as accrued income from flour mill, no document is been placed before this court. He deposed, he had no knowledge that, such much huge amount have to pay through DD or cheque. But he stated, paid through cheque. But he failed to demonstrate, on which date, where he pass the said loan amount is not been satisfactorily demonstrated. Moreover, the accused has attack by way of suggestion made supra that, accused was no need to borrow the huge loan of Rs.3 lakhs and complainant had no financial capacity to lend the same. To prove the said defence raised by way of suggestion, he produced Exs.D3 and D4 sanction letter and bank statement. Which reveal, much earlier the daughter of the accused did engineering course. Once again, no need to borrow the loan from complainant as he alleged. Thereby, strongly attack on the claim of complainant and collapsed the very case. Even though PW.1 entered in to witness, his evidence is not corroborates his own pleading. It consists of several contradictions, omission and development.
Judgment 22 C.C.No.17630/2018
29. In the cross of PW.1, it was a defence suggested to PW.1 that, in the year 2014 the wife of accused by name Shantha Bai for her 2nd daughter B.Com., education purpose borrowed loan of Rs.40,000/- from the complainant on the security of singed blank cheque of the accused. Despite, she cleared the loan with interest and compound interest, the complainant not returned the said cheque and misused the same. The admissions in the pleading of the complainant made it clear that, he got received interest from the accused. But accused has contended, it was interest paid on behalf of his wife in respect of Rs.40,000/- loan, coupled with compound interest. From the said factum, it made clear that, the complainant lent loan either to the accused or his wife on interest. The accused has alleged, the said loan was paid to him of Rs.40,000/- on monthly interest at 10%. It made clear that, the complainant is doing the business of money lending without obtaining necessary licence. The very act of the complainant is to be deprecated. Even, complainant has not approached this court with clean hands, as to what quantum of interest as EMI got received from the accused or his wife not been narrated. But in the cross-examination he stated, without interest he paid money. Therefore, it is not safe to rely upon the evidence of PW.1.
Judgment 23 C.C.No.17630/2018
30. The evidence of PW.1 depicts the defence of accused. Likewise, accused has withstood his contention in his cross- examination stating that, he was suffering from Kidney problem since 2006, therefore, his wife took the maintenance and accordingly, borrowed loan of Rs.40,000/- from the complainant on the signed blank cheque of him and the same were repaid to him with higher interest and complainant not returned the questioned cheque and misused the same by filing the present case. Even, in the cross of DW.1, there is no suggestion made to him, exactly on which date the complainant lent the huge amount of Rs.3 lakhs and what was the compelling circumstances to the accused to borrow as such, is also not been suggested or extracted any admission with regard to the case of complainant. The accused seriously attack on the claim of complainant, the complainant despite got cleared the loan of Rs.40,000/- with interest and compound interest from his wife and not returned the security documents. The said defence of the accused remains unchallenged in the absence of complainant failed to prove his case. Though it was reverse burden casted on the complainant from the point of defence of the accused, he utterly failed to discharge the same. The accused by way of tendered himself for cross-examination coupled with cross-examining the PW.1 in Judgment 24 C.C.No.17630/2018 detail along with production of documents at Exs.D1 to D4, clearly proved his probable defence, and created doubt as to the genuineness of the transaction put forth by the complainant. Therefore, it was the reverse burden on the complainant as per Section 139 of Negotiable Instruments Act, to prove his case beyond the reasonable doubt.
It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".
In the decision reported in ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:
(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -
Something probable has to be brought record - Burden of proof can be shifted back to complainant Judgment 25 C.C.No.17630/2018 by producing convincing circumstantial evidence - Thereafter the said presumption arising under Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural even human conduct and public and private business) -
Evidence Act, 1872 - Section 114 - Presumptions of fact under".
In the decision of AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".
31. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused. Accordingly, as observed earlier, the complainant has utterly failed to disclose, exactly on which date, what purpose, the accused sought for loan from the complainant, that too, the huge amount of Rs.3 lakhs is not been explained. Likewise, even not Judgment 26 C.C.No.17630/2018 explained satisfactorily exactly on which date, on whose presence he passed the consideration of Rs.3 lakhs to the accused is not been explained satisfactorily. Even to show that, the complainant had requisite fund of Rs.3 lakhs as on the alleged date, not been furnished any document. The accused by production of his attendance register extract attached to the document at Ex.D2 has successfully proved that, on the working days he was joined the duty and not possible to return home during the office hours, under circumstances, as alleged by the complainant morning at 10.30 a.m. the accused came to his house and borrowed loan from him by the accused is not been proved. The non- examination of the wife of complainant is one of the strong doubtful circumstances arose as to the genuineness of the transaction.
32. In the pleading the complainant has contended, to solve the stringent financial commitment and to clear his hand loan availed from 3rd parties, accused borrowed the loan. From which, it made clear that, the accused if at all, had any stringent financial commitment, it is the complainant has to disclose, what was them, but not explained. The complainant already knew that, the accused had availed loan from 3rd parties to clear the same, if at all, borrowed the loan as he pleaded, the same is not whispered in Judgment 27 C.C.No.17630/2018 his cross-examination. From the said pleading, it made clear that, if at all, accused already defaulter of loan to 3rd parties, on which confidence the complainant took the risk to pay the said huge amount of Rs.3 lakhs is also not been satisfactorily explained. Though, complainant has pleaded for interest he lent loan, in his cross-examination he deposed contrary to the same. Thereby, he himself created doubt as to the genuineness of the transaction without obtaining licence, he claimed to be did the money lending business. Even what quantum of interest received from the accused and what was the rate of interest is also not been explained.
33. The accused from the inception itself by way of caused reply at Ex.P6, as attack on the claim of complainant. Even then, complainant has not narrated minimum requirement as to the genuineness of the money transaction particulars. Though, accused appeared in the present case got attack on the claim of complainant, through out the case and somehow, he able to disproved the case of complainant. On meticulous perusal of the Ex.P1-cheque, it prima facie made clear that, the questioned signature and other writings made in different, it appears that, accused not duly executed and issued the questioned cheque in favour of the complainant. Therefore, it was the reverse burden Judgment 28 C.C.No.17630/2018 on the complainant to prove its due execution and issuance, but he failed to prove the same.
34. That apart, in the pleading the complainant has contended that, the accused borrowed loan for the period of 4 months, as he undertakes only paid interest for 2 months and later not paid on due negotiation, later got paid the interest and got issued the questioned cheque dated:19.04.2018. But in his cross- examination has deposed that, on the date of got received loan amount itself the accused got issued the questioned cheque and no other document has been received. In that regard, it requires to reproduce the evidence of PW.1 that:
"£Á£ÀÄ DgÉÆæUÉ ºÀtªÀ£ÀÄß ¤ÃrzÀ ¢£ÀªÉà DvÀ ZÉPÀÌ£ÀÄß PÉÆnÖzÀÝgÀÄ, «£ÀB DvÀ¤AzÀ ¨ÉÃgÉ zÁR¯É §gɬĹPÉÆAr®è. DgÉÆæAiÀÄ ºÉAqÀw ¤¦.1 gÀ ZÉPÀÌ£ÀÄß £À£ÀUÉ PÉÆnÖzÀÝgÀÄ. DgÉÆæ £À£ÀUÉ PÉÆnÖzÀÝ®è JAzÀgÉ ¸ÀjAiÀÄ®è."
35. From the say of PW.1 it discloses, contrary to his pleading stated on the date of borrowal, the accused got issued the cheque. First of all, it made clear that, as per Ex.D2, the accused on the working days went to the office and how he came to his house, as he alleged not explained. Even he deposed, no document is been received other than the cheque. More Judgment 29 C.C.No.17630/2018 particularly, he deposed that, the wife of accused got issued the Ex.P1-cheque to him, but advocate for the accused has denied that, the said cheque was not issued by the accused to the complainant. From the said cross-examination, it made clear that, the complainant has admitted the questioned cheque was issued by the wife of accused, not by the accused. Therefore, it has to be presume that, the questioned cheque not issued by the accused. As contended by the accused, it was issued by his wife in respect of the loan of Rs.40,000/-, therefore, the complainant has uttered as such.
36. That apart, as discussed earlier, the PW.1 in the cross- examination as re-produced earlier, has deposed that, during 3rd week of November, 2017, accused along came to his wife in the presence of wife of accused at 10.30 a.m. borrowed the loan. The said testimony of PW.1 is contrary to his own testimony, as to hand over cheque by accused's wife on the date of borrowal itself. There is no similarity with regard to the evidence of PW.1 in the cross-examination itself. On the one stretch he stated, accused alone came to his house and borrowed loan and on the other hand, he deposed, the accused wife gave cheque itself is strongfull circumstances, which contradicts pleading as well as the evidence of PW.1 itself. Therefore, the accused has successfully Judgment 30 C.C.No.17630/2018 proved his probable defence and the complainant utterly failed to prove his case, despite, reverse burden casted on him. Hence, the accused has successfully proved his probable defence and rebutted the statutory presumption as well as facts and circumstances narrated by the complainant. From the probable defence of the accused, it made clear that, the questioned cheque not issued by the accused to the complainant, but it was issued by the wife of accused in respect of small loan of Rs.40,000/- obtained by her from the complainant. As contended by the accused, despite, he got cleared the loan with interest and compound interest and the complainant has admitted the receipt of interest, the questioned cheque was not issued by the accused to the complainant. The complainant went to the extent and got misused the questioned cheque by filing false case, therefore, the very act of the complainant has to be condemned. The accused discharged his initial burden and nullified the case of complainant. Hence, the accused is entitled for benefit of doubt for acquittal.
37. 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 Judgment 31 C.C.No.17630/2018 humbly gone through the decision relied by parties apart from the following decisions.
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:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
38. 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.3 lakhs 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 Judgment 32 C.C.No.17630/2018 of liability of Rs.3 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
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".
39. 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.3 lakhs to accused. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheque for discharge of Rs.3 lakhs 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.3 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 33 C.C.No.17630/2018
40. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Ex.P1 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Sections 139 and 118 of Negotiable Instruments Act in favour of the accused.
41. 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.
42. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the Judgment 34 C.C.No.17630/2018 presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.3 lakhs 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 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.
43. 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.
Judgment 35 C.C.No.17630/2018 The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 9th day of July - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Gangadharaiah.H.A 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 : Track consignment Ex.P6 : Reply notice Ex.P7 : Private complaint Ex.P7(a) : Signature of complainant
List of Witnesses examined on behalf of the defence:
DW.1 : N.Durgoji Rao List of Exhibits marked on behalf of defence:
Ex.D1 : Complaint dated:18.05.2018
Ex.D2 : Letter dtd:01.07.2019
Ex.D3 : Letter of loan sanction
Ex.D3(a) & D3(b) : Signatures of accused and his daughter
Ex.D4 : Statement of account
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 36 C.C.No.17630/2018
09.07.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are
absent. No representation from both
side advocates, despite, web-host the
case proceedings and intimate the date
of pronouncement of judgment. Hence, as
per Section 353(6) of Cr.P.C. the
following judgment is pronounced in the
open court vide separate order.
Judgment 37 C.C.No.17630/2018
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.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.