Bangalore District Court
N.S.Vishwanath vs Khushi Radhya on 15 July, 2022
KABC030112752019
Presented on : 13-02-2019
Registered on : 13-02-2019
Decided on : 15-07-2022
Duration : 3 years, 5 months, 2 days
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 15th day of July - 2022
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.3820/2019
Complainant : N.S.Vishwanath,
S/o.Late N.Siddaiah,
Aged about 70 years,
D.No.92, (EWS) 3rd Cross,
2nd Stage, KHB Colony,
Agrahara Dasarahalli,
Bengaluru-79.
(Rep. by Sri.M.Mahesha, Adv.)
V/S
Accused : Khushi Radhya,
D/o.Renukaradhya,
Aged about 33 years,
D.No.11, Hanee Home,
1st Floor, (Backside House),
5th A Cross, 5th Main Road,
Pipeline Road, Jalahalli Village,
Judgment 2 C.C.No.3820/2019
Bahubali Nagar, (Ward No.16),
Bengaluru-13.
(Rep.by Sri.A.N.Gowrish, 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 : 15.07.2022.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 05.02.2019 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque amount of Rs.90,50,000/-.
2. The brief facts of the complaint are as under:
The complainant has submitted that the accused well acquainted with him since 2 years and both are relatives. The accused was Director of Vivid Ventures Pvt. Ltd. In the month of June 2018, the accused has approached and requested him for Judgment 3 C.C.No.3820/2019 loan of Rs.87 lakhs to meet out her project work, finance business and real estate business of her firm.
The complainant has further contended that the accused has borrowed loan amount of Rs.87 lakhs from him by way of cash on 10.07.2018 at about 11.00 am in the presence of witnesses for a period of 3 months. On the very same day, towards repayment of the said principal amount of Rs.87 lakhs with interest amount of Rs.3,50,000/-, in all Rs.90,50,000/-, the accused has issued a post dated cheque bearing No.000186 dated 10.10.2018 drawn for Rs.90,50,000/-, drawn on HDFC Bank, C.P.Tower, Cambridge Road, Bengaluru in his favour.
The complainant has further contended that as per instructions of accused, he presented said cheque for encashment through his banker viz., Syndicate Bank, Vijayanagar Branch, Bengaluru on 07.01.2019, the same came to be dishonoured with an endorsement dated 08.01.2019 stating "Funds Insufficient". Thereafter, he approached the accused and intimated about dishonour of cheque and demanded for repayment of the cheque amount, but the accused has given evasive answers and postponed the same for one or other reasons. Hence, he got issued legal notice to the accused Judgment 4 C.C.No.3820/2019 through his counsel on 16.01.2019 by way of R.P.A.D calling upon her to repay the cheque amount within 15 days from the date of receipt of the legal notice and the same was duly served upon accused on 17.01.2019. Despite, the accused neither paid the cheque amount nor replied to the legal notice. Thus, the accused committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office 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 her counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to accused, wherein, she denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself chosen to examine as PW.1 and got marked Exs.P1 to P38. The PW.1 was subjected for cross-examination by the advocate for the accused. In the cross-examination of DW.1, complainant party in person Judgment 5 C.C.No.3820/2019 got confronted fourteen documents and same are marked as Exs.P39 to P53.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same. In support of the defence, the accused herself was examined as DW.1 and got marked Exs.D1 to D10. The DW.1 was subjected for cross-examination by the complainant party in person.
7. I have heard arguments on both side. The complainant party in person has also submitted his detailed written arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
1) Whether the complainant proves beyond all reasonable doubt that towards discharge of legally recoverable debt or liability, the accused has issued Ex.P1 - cheque in his favour and the same came to be dishonoured for the reasons 'Funds Insufficient' and even after service of notice, the accused has failed to repay the cheque amount and thereby accused has committed an offence punishable under Section 138 of N.I.Act?
2) What Order?
Judgment 6 C.C.No.3820/2019
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 : As per final order, for the following:
REASONS
10. POINT No.1: The complainant has filed this complaint for an offence punishable under Section 138 of Negotiable Instruments Act against the accused and prayed to punish the accused for an offence punishable under Section 138 of Negotiable Instruments Act.
11. To attract Section 138 of Negotiable Instruments Act, complainant should prove that; (1) the accused has issued a cheque for discharge of legally recoverable debt. (2) The same was presented through his banker. (3) It was dishonoured on presentation. (4) The notice in terms of provisions was served on the accused and (5) Despite service of notice neither any payment was made nor other obligations, if any were complied within 15 days from the date of receipt of notice.
12. In order to prove his case, the complainant filed his affidavit and himself examined as PW.1, wherein, he has reiterated the Judgment 7 C.C.No.3820/2019 averments made in the complaint. In support of his contention, he relied upon the documents at Exs.P1 to P53. Among them, cheque bearing No.000186 for sum of Rs.90,50,000/- dated 10.10.2018, drawn on HDFC Bank, C.P.Towers, Cambridge Road, Opp. St. Annes Women's College, Bengaluru is marked as Ex.P1.
The signature of accused is marked as Ex.P1(a). Ex.P2 is the Bank Endorsement issued by Syndicate Bank, the contents of Ex.P2 disclose that the cheque bearing No.000186 drawn for Rs.90,50,000/- was dishonoured for the reasons "Funds Insufficient". Ex.P3 is the Legal Notice dated 16.01.2019, the recitals of Ex.P3 disclose that the complainant has issued this notice to the accused through his counsel. By issuing this notice, complainant called upon the accused to repay the cheque amount of Rs.90,50,000/- within 15 days from the date of receipt of notice. Exs.P4 and P5 are the Postal receipts. Ex.P6 is the postal acknowledgment card. Ex.P7 is the unserved R.P.A.D cover same was returned as addressee left. Ex.P7(a) is the legal notice at Ex.P7. Ex.P8 is the Visiting Card pertaining to accused, who is the director of Vivid Ventures Pvt. Ltd. Exs.P9 and P10 are the Statements of account pertaining to complainant issued by Canara Bank for the period from 25.05.2018 to 30.06.2018 and 05.06.2018 to 25.06.2018. Ex.P11 is the Statement of account Judgment 8 C.C.No.3820/2019 pertaining to complainant issued by Veerashaiva Sahakari Bank Ltd., for the period from 01.06.2018 to 31.07.2018. Ex.P12 is the personal ledger from 01.07.2018 to 15.07.2018 pertaining to complainant issued by The comptroller's office Co-operative Bank Ltd. Exs.P13 to P16 are the rent agreements executed by complainant herein on various dates on various persons. Ex.P17 is the property tax receipt for the year 2019-20 pertaining to complainant issued by BBMP. Exs.P18 to P19 are the Katha Certificate and Katha Extract pertaining to complainant herein issued by Assistant Revenue Officer, BBMP, Bengaluru. Ex.P20 is the property tax paid receipt for the year 2019-20 pertaining to one R.Susheela issued by BBMP. Ex.P21 is the Rent agreement dated 10.08.2018 executed by one Smt.R.Susheela in favour of one Albert Deepak Fayaz. Exs.P22 to P25 are the copies of share application money receipts pertaining to Susheela.R and complainant herein issued by Kanva Fashions Limited. Exs.P26 and P28 are the jewels loan details receipts. Exs.P27 and P29 are the jewels loan member ship cards. Ex.P30 is Statement of account for the period from 01.01.2015 to 31.03.2015 pertaining to complainant issued by Veerashaiva Sahakari Bank Ltd. Exs.P31 and P32 are the gold loan sanctioned letters. Ex.P33 is the true copy of bank passbook pertaining to complainant issued Judgment 9 C.C.No.3820/2019 by Basaveshwarnagar Co-operative Credit Bank Ltd. Ex.P34 is the account statement for the period from 01.12.2014 to 12.03.2020. Exs.P35 & P36 are the Notarized copies of On demand promissory note and consideration receipt dated 15.02.2018. Exs.P35(a) & P36(a) are the signatures of complainant. Ex.P37 is the reply notice dated 16.02.2019 issued by accused through her counsel to the complainant's counsel. Ex.P38 is the certified copies of private complaint and its enclosures filed by accused herein against M/s. DSU Business Solutions and another on the file of learned 15th ACMM, Bengaluru. Exs.P39 to P50 are the original cheques pertaining to accused herein. Exs.P51 and P52 are the certified copies of private complaints in C.C.No.22125/2019 and 27976/2019 filed by accused herein against Suhas.S on the files of learned 16th and 18th ACMM Courts, Bengaluru. Ex.P53 is the xerox copy of Registration Certificate of Establishment issued by Labour Department, Government of Karnataka in the name of accused herein. The PW.1 was subjected to the cross-examination by the advocate for the accused.
Section 118 (a) of Negotiable Instruments Act provides that:
Judgment 10 C.C.No.3820/2019 "Until the contrary is proved, the following presumptions shall be made: (a) of consideration; 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."
Section 139 of Negotiable Instruments Act provides that:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
The above presumptions are rebuttable in nature.
13. In order to rebut the presumption available under Sections 118(a) and 139 of Negotiable Instruments Act, the accused has filed her affidavit and examined herself as DW.1. In her evidence, she denied the relationship as well as acquaintance with complainant and she stated that in the month of November/December-2016, one Suhas.S had introduced the complainant to her. The said Suhas.S incorporated a company under the name and style as Vivid Ventures Pvt. Ltd. and asked her to join as sleeping partner with his company, the said Suhas was well acquainted with her, hence she agreed to become a Judgment 11 C.C.No.3820/2019 sleeping director to the said company. The said Suhas has taken her some cheques and same were kept at his office. The said Suhas had humiliated her, hence, on 17.05.2017, she resigned from the Directorship of the said company and further she stopped to visit the said office as well as the house of Suhas. She has not received amount from the complainant as alleged in the complaint and she has not issued the questioned cheque as well as other cheques in favour of complainant for discharge of legally recoverable debt. After resigning Directorship to the company of Suhas, the said Suhas has not returned her cheques. The questioned cheque was misused by Suhas by colluding with the complainant and filed this false case against her. Hence, she is not liable to pay the amount covered under the cheque at Ex.P1 to the complainant. Hence, she prayed to acquit her. In support of her contention, the DW.1 has relied upon the documents at Exs.D1 to D10. Among them, Ex.D1 is the computer generated copy of airtel mobile bill pertaining to accused. Ex.D2 is the copy of Memorandum of Association (Amended) of Vivid Ventures Private Limited. Ex.D3 is the computer generated gmail copy of resignation letter dated 17.05.2017 sent by accused through her mail to the mail address of Suhas. Ex.D4 is the computer generated gmail copy of final request for settlement letter dated Judgment 12 C.C.No.3820/2019 22.12.2021 sent by Suhas to the mail ID of accused. Ex.D5 is the computer generated copy of another airtel mobile bill pertaining to the accused. Exs.D6 and D7 are the cash/credit bill and Trip Sheet dated 17.07.2018 pertaining to accused issued by Keerthi Tours and Travels. Ex.D8 is the certified copy of private complaint filed by complainant herein against Suhas.S in C.C.No.27473/2019 on the file of learned 22nd ACMM, Bengaluru. Ex.D9 is the certified copy of sworn statement of complainant herein in PCR No.14238/2019 on the file of learned 22nd ACMM, Bengaluru. Ex.D10 is the certified copy of cheque bearing No.271275, bank endorsement and its enclosures. The DW.1 was subjected to the cross-examination by the complainant. In the entire cross-examination made by complainant, the DW.1 has not admitted the suggestions made by the complainant in respect of issuance of questioned cheque in favour of complainant for discharge of legally recoverable debt.
14. As per Sections 118(a) and 139 of Negotiable Instruments Act, the initial presumption raised in favour of complainant. But the said presumption is rebuttable in nature. It is not necessary to the accused to enter into witness box and give her oral and documentary evidence before the court to prove her defence.
Judgment 13 C.C.No.3820/2019 She can prove her defence on the basis of materials available on record.
15. It is not in dispute that the cheque and signature appears thereon belong to accused. The complainant has not denied the say of accused that when she has agreed to become as a Sleeping Director of Vivid Ventures Pvt. Ltd. at that time, the said Suhas, who was the director of said company has taken her some cheques to the company. Further, the accused has denied the borrowing of loan amount of Rs.87 lakhs from the complainant and issuance of Ex.P1-cheque in favour of complainant for discharge of legally enforceable debt. On carefully perusal of the case records, it appears that the amount involved in the cheque Rs.90,50,000/- is a very huge amount. Admittedly, the complainant was retired from his service in the month of July 2007 and at that time his monthly salary was Rs.17,000/- and after retiring from service, he is getting pension of Rs.1,326/- p.m.
16. It is the main contention of complainant is that in the month of June 2018, the accused has requested him loan of Rs.87 lakhs for a period of 3 months for the purpose of project work, finance business and real estate business of her firm Vivid Ventures Pvt. Ltd. After considering the request of accused, on 10.07.2018, he Judgment 14 C.C.No.3820/2019 lent an amount of Rs.87 lakhs to the accused by way of cash in her firm at about 11.00 am in the presence of witnesses. Towards repayment of the said amount of Rs.87 lakhs including 3 months interest, in all Rs.90,50,000/-, the accused has given the alleged Ex.P1-cheque in his favour, when the said cheque was presented for encashment, the same came to be dishonoured with a shara "Funds Insufficient" and after issuance of demand notice, the accused has not paid the cheque amount to him. Hence, he filed the present complaint. The said contention of complainant was strongly denied by the accused by way of cross-examination of PW.1.
17. On carefully perusal of the entire materials available on record produced by the complainant, no documents speak that the complainant has lent an amount of Rs.87 lakhs to the accused on 10.07.2018. During the course of cross-examination of PW.1, the accused's counsel has questioned the financial capacity of complainant to lend such huge amount of Rs.87 lakhs to the accused on 10.07.2018. In this regard, the complainant, in his cross-examination, has deposed that:
"ಸಕ ನಪ-9 ರರದ 12 ರ ದಖಲಗಳನನ ನ ನನನಡ, ದನರಕಕ28.05.2018 ರಲ ರನಕ5 ಲಕ, ದನರಕಕ01.06.2018 ರಲ ರನಕ5 ಲಕ, Judgment 15 C.C.No.3820/2019 ದನರಕಕ13.06.2018 ರಲ ರನಕ3,03,000/-, ದನರಕಕ26.06.2018 ರಲ ರನಕ4,04,000/-, ದನರಕಕ 27.06.2018 ರಲ ರನಕ4,04,000/-, ದನರಕಕ04.06.2018 ರಲ ರನಕ5,00,000/-, ದನರಕಕ21.06.2018 ರಲ ರನಕ5,50,000/-, ದನರಕಕ10.07.2018 ರಲ ರನಕ 3,18,355/-, ದನರಕಕ09.07.2018 ರಲ ರನಕ 3,00,000/-, ದನರಕಕ05.06.2018 ರಲ ರನಕ5,00,000/-, ರನಕ 4,00,000/- ಮತನತ ರನಕ 4,00,000/- ಮತನತ ಪನಕ ರನಕ 3,00,000/-, ದನರಕಕ 25.06.2018 ರಲ ರನಕ 58,733/- ನಗಧನಕರಸ ಆರನನಪಗ ನನಡದನನ."
18. Further the PW.1, in his cross-examination, has deposed that:
"ನಿಪ.9 ರಲಲ್ಲಿ ಕಕೆನರರಾ ಬರಾಬಬ್ಯಾಂಕ್, ಬಸವಕೆವೇಶಶ್ವರ ನಗರ ಶರಾಖಕೆಯಲಲ್ಲಿ ನಿಪ.9 ರಬ್ಯಾಂತಕೆ ಕಬ್ಯಾಂಡಡುಬಬ್ಯಾಂದಬ್ಯಾಂತಕೆ ದಿನರಾಬ್ಯಾಂಕಕ28.05.2018 ರಲಲ್ಲಿ ರರ:5,00,000/- ನನನ್ನ ಖರಾತಕೆಗಕೆ ಜಮರಾ ಆಗಿದಡುದ, ಅದಕೆವೇ ದಿನ ನರಾನಡು ಸಡುರಕೆವೇಶ್ ರವರ ಖರಾತಕೆಗಕೆ ವಗರಾರ್ಗಾಯಿಸಿದಕೆದವೇನಕೆ. ಆ ದಿನ ನನನ್ನ ಬರಾಬಬ್ಯಾಂಕಿನ ಬರಾಬಲಕೆನ್ಸ್ ರರ.1,664/- ಮರಾತತ್ರ ಎಬ್ಯಾಂದರಕೆ ಸರ. ದಿನರಾಬ್ಯಾಂಕಕ01.06.2018 ರಲಲ್ಲಿ ರರ.5,00,000/- ಬಬ್ಯಾಂದಿದಡುದ, ಅದಕೆವೇ ದಿನ ಲಕೆರವೇಹಿತ್ ರವರ ಖರಾತಕೆಗಕೆ ವಗರಾರ್ಗಾಯಿಸಿದಕೆದವೇನಕೆ ಎಬ್ಯಾಂದರಕೆ ಸರ. ಬಳಿಕ ಆ ದಿನ ನನನ್ನ ಬರಾಬಬ್ಯಾಂಕಿನ ಬರಾಬಲಕೆನ್ಸ್ ರರ.1,134/- ಮರಾತತ್ರ ಎಬ್ಯಾಂದರಕೆ ಸರ. ದಿನರಾಬ್ಯಾಂಕಕ13.06.2018 ರಲಲ್ಲಿ ರರ.3,03,000/-ಬಬ್ಯಾಂದಿದಡುದ, ಅದಕೆವೇ ದಿನದಿಬ್ಯಾಂದ, ದಿನರಾಬ್ಯಾಂಕಕ 16.06.218 ರವರಕೆಗಕೆ ನರಾನಡು ಹಣ ಖರಡುರ್ಗಾ ಮರಾಡಿದದನಡುನ್ನ ಹಕೆರರತಡು ಪಡಿಸಿ ರರ.1,233/-ಗಳಡು ಬರಾಲಕೆನ್ಸ್ ಮರಾತತ್ರ ಎಬ್ಯಾಂದರಕೆ ಸರ. ದಿನರಾಬ್ಯಾಂಕಕ26.06.2018 ರಲಲ್ಲಿ ರರ.4,04,000/-
Judgment 16 C.C.No.3820/2019
ಕಣಶ್ವದಿಬ್ಯಾಂದ ಬಬ್ಯಾಂದ ಹಣವನಡುನ್ನ ಆ ದಿನರಾಬ್ಯಾಂಕದಿಬ್ಯಾಂದ
ದಿನರಾಬ್ಯಾಂಕಕ27.7.2018 ರವರಗಕೆ ನರಾನಡು ಹಣ ಖರಡುರ್ಗಾ ಮರಾಡಿದದನಡುನ್ನ
ಹಕೆರರತಡು ಪಡಿಸಿ ರರ.15,995/- ಗಳಡು ಬರಾಲಕೆನ್ಸ್ ಮರಾತತ್ರ ಎಬ್ಯಾಂದರಕೆ ಸರ. ದಿನರಾಬ್ಯಾಂಕಕ27.06.2018 ರಲಲ್ಲಿ ರರ.4,04,000/- ಕಣಶ್ವದಿಬ್ಯಾಂದ ಬಬ್ಯಾಂದ ಹಣವನಡುನ್ನ ದಿನರಾಬ್ಯಾಂಕಕ 28.06.2018 ರಬ್ಯಾಂದಡು ಲಕೆರವೇಹಿತ್ ರವರ ಖರಾತಕೆಗಕೆ ವಗರಾರ್ಗಾಯಿಸಿದಕೆದವೇನಕೆ ಎಬ್ಯಾಂದರಕೆ ಸರ.
ನಿಪ.11 ರ ಪತ್ರಕರಾರ ದಿನರಾಬ್ಯಾಂಕಕ04.06.2018 ರಲಲ್ಲಿ ರರ.5,00,000/-ಬಬ್ಯಾಂದಿದಡುದ, ದಿನರಾಬ್ಯಾಂಕಕ 05.06.2018 ರಬ್ಯಾಂದಡು ಲಕೆರವೇಹಿತ್ ರವರ ಖರಾತಕೆಗಕೆ ರರ.5,00,000/- ವಗರಾರ್ಗಾಯಿಸಿದಕೆದವೇನಕೆ ಎಬ್ಯಾಂದರಕೆ ಸರ. ಬಳಿಕ ಆ ದಿನ ನನನ್ನ ಬರಾಬಬ್ಯಾಂಕ್ ನ ಬರಾಲಕೆನ್ಸ್ ರರ.2,139/- ಮರಾತತ್ರ ಎಬ್ಯಾಂದರಕೆ ಸರ. ದಿನರಾಬ್ಯಾಂಕಕ21.06.2018 ರಲಲ್ಲಿ ರರ.5,50,000/- ಕಣಶ್ವದಿಬ್ಯಾಂದ ನನಗಕೆ ಬಬ್ಯಾಂದಿದಕೆ ಎಬ್ಯಾಂದರಕೆ ಸರ. ಆ ಹಣವನಡುನ್ನ ಕರಡ ರವಿಕಡುಮರಾರ್ ರವರ ಖರಾತಕೆಗಕೆ ರರ.5,02,559/- ವಗರಾರ್ಗಾಯಿಸಿದಕೆದವೇನಕೆ ಎಬ್ಯಾಂದರಕೆ ಸರ. ಬಳಿಕ ಆ ದಿನ ನನನ್ನ ಬರಾಬಬ್ಯಾಂಕ್ ನ ಬರಾಬಲಕೆನ್ಸ್ ರರ.4,580/- ಮರಾತತ್ರ ಎಬ್ಯಾಂದರಕೆ ಸರ. ಕಣಶ್ವದಿಬ್ಯಾಂದ ದಿನರಾಬ್ಯಾಂಕಕ10.07.2018 ರಲಲ್ಲಿ ರರ.3,18,355/- ಬಬ್ಯಾಂದಿದಡುದ, ಅದಕೆವೇ ದಿನ ಸಶ್ವತಕ ಸಬ್ಯಾಂಪಪೂಣರ್ಗಾ ಹಣವನಡುನ್ನ ನಗದಿವೇಕರಸಿಕಕೆರಬ್ಯಾಂಡಿದಕೆದವೇನಕೆ ಎಬ್ಯಾಂದರಕೆ ಸರ. ಬಳಿಕ ಆ ದಿನ ನನನ್ನ ಬರಾಬಬ್ಯಾಂಕ್ ನ ಬರಾಬಲಕೆನ್ಸ್ ರರ.943/-ಮರಾತತ್ರ ಎಬ್ಯಾಂದರಕೆ ಸರ. ನಿಪ.12 ರ ಪತ್ರಕರಾರ ದಿನರಾಬ್ಯಾಂಕಕ09.07.2018 ರಲಲ್ಲಿ ರರ.3,00,000/- ಬಬ್ಯಾಂದಿದಕೆ ಎಬ್ಯಾಂದರಕೆ ಸರ. ದಿನರಾಬ್ಯಾಂಕಕ 10.07.2018 ರಬ್ಯಾಂದಡು ಸಶ್ವತಕ ಸಬ್ಯಾಂಪಪೂಣರ್ಗಾ ಹಣವನಡುನ್ನ ನಗದಿವೇಕರಸಿಕಕೆರಬ್ಯಾಂಡಿದಕೆದವೇನಕೆ ಎಬ್ಯಾಂದರಕೆ ಸರ. ಬಳಿಕ ಆ ದಿನ ನನನ್ನ ಬರಾಬಬ್ಯಾಂಕ್ ನ ಬರಾಬಲಕೆನ್ಸ್ ರರ.1,236/-ಮರಾತತ್ರ ಎಬ್ಯಾಂದರಕೆ ಸರ. ಕಣಶ್ವದಿಬ್ಯಾಂದ Judgment 17 C.C.No.3820/2019 ದಿನರಾಬ್ಯಾಂಕಕ05.06.2018 ರಲಲ್ಲಿ ರರ.5,00,000/- ಮತಡುತ ರರ.4,00,000/-, ರರ.4,00,000/- ಮತಡುತ ಪಪುನಕ ರರ.3,00,000/- ಬಬ್ಯಾಂದಿದಡುದ, ಆ ಹಣದ ಪಕೆಪೈಕಿ ರರ. 5,00,000/- ಮತಡುತ ರರ. 4,00,000/- ಲಕೆರವೇಹಿತ್ ಮತಡುತ ಸಿದದಲಬ್ಯಾಂಗಪಪ್ಪನವರ ಖರಾತಕೆಗಕೆ ವಗರಾರ್ಗಾಯಿಸಿದಕೆದವೇನಕೆ ಎಬ್ಯಾಂದರಕೆ ಸರ. ಹರಾಗಕೆವೇ ಬಬ್ಯಾಂದ ಹಣ ಖರರಾರ್ಗಾದ ಬಳಿಕ ನನನ್ನ ಬರಾಬಬ್ಯಾಂಕ್ ನ ಬರಾಬಲಕೆನ್ಸ್ ರರ.1,410/- ಮರಾತತ್ರ ಎಬ್ಯಾಂದರಕೆ ಸರ. ಕಣಶ್ವದಿಬ್ಯಾಂದ ದಿನರಾಬ್ಯಾಂಕಕ 25.06.2018 ರಲಲ್ಲಿ ರರ.58,733/- ಬಬ್ಯಾಂದಿದಕೆ ಎಬ್ಯಾಂದರಕೆ ಸರ. ಆ ಪಕೆಪೈಕಿ ರರ.58,700/- ಮೊತತ ಲಕೆರವೇಹಿತ್ ರವರ ಖರಾತಕೆಗಕೆ ವಗರಾರ್ಗಾಯಿಸಿದಕೆದವೇನಕೆ ಎಬ್ಯಾಂದರಕೆ ಸರ. ಹರಾಗಕೆವೇ ಬಬ್ಯಾಂದ ಹಣ ಖರರಾರ್ಗಾದ ಬಳಿಕ ನನನ್ನ ಬರಾಬಬ್ಯಾಂಕ್ ನ ಬರಾಬಲಕೆನ್ಸ್ ರರ.1,443/-ಮರಾತತ್ರ ಎಬ್ಯಾಂದರಕೆ ಸರ.
ನಿಪ.26 ರ ಪತ್ರಕರಾರ ನರಾನಡು ದಿನರಾಬ್ಯಾಂಕಕ08.01.2017 ರಬ್ಯಾಂದಡು ಸರಾಲವನಡುನ್ನ ಪಡಕೆದಡು ಆ ಹಣವನಡುನ್ನ ನರಾನಡು ಕಣಶ್ವ ಸಬ್ಯಾಂಸಕೆಸ್ಥೆಗಕೆ ಪರಾವತ ಮರಾಡಿದಕೆದನಡು. ನಿಪ.33 ರ ಪತ್ರಕರಾರ ಚಿನನ್ನದ ಸರಾಲ ಪಡಕೆದಡು ಆ ಹಣವನಡುನ್ನ ನರಾನಡು ಕಣಶ್ವ ಸಬ್ಯಾಂಸಕೆಸ್ಥೆಗಕೆ ಪರಾವತ ಮರಾಡಲಡು ಸರಾಲ ಪಡಕೆದಿದಕೆ ಎಬ್ಯಾಂದರಕೆ ಸರ."
19. On going through the said testimony of PW.1, he admitted that as per Exs.P9 to P12 documents, he had transferred the amounts through his accounts to the various persons. The said testimony of PW.1 and bank documents relied by the complainant, do not disclose that he has given an amount of Rs.87 lakhs to the accused on the alleged date. The above own versions of complainant are totally contradictory with each other. The above contentions, itself creates doubt regarding genuineness of Judgment 18 C.C.No.3820/2019 transaction held in between complainant and accused. On relying these type of contradictory versions, it is difficult to come to conclusion that the complainant has given an amount of Rs.87 lakhs to the accused on 10.07.2018.
20. DW.1, in her cross-examination, has deposed that on 17.05.2017, she has resigned to the post of Director of Vivid Ventures Pvt. Ltd. and the said resignation letter was sent by her to the gmail address of Suhas. In support of her contention, she has produced Ex.D3 - resignation letter. On carefully perusal of the Ex.D3, it appears that she has sent her resignation to the cadre of Director of Vivid Ventures Pvt. Ltd. to the gmail I.D. of Suhas. The sending of resignation letter to the Suhas was not denied by the complainant. The DW.1 has denied the suggestion of complainant that in the year 2018, she was in the said company and running of business. The complainant has not placed sufficient documents before the court that in the year 2018, the accused was running the business in the Vivid Ventures Pvt. Ltd. On 17.05.2017, the accused has resigned her Directorship, after completion of one year two months, how it is possible to complainant, on 10.07.2018, he lent an amount of Rs.87 lakhs to the accused in the Vivid Ventures Pvt. Ltd. Itself creates doubt, Judgment 19 C.C.No.3820/2019 regarding the transaction taken place in between complainant and accused.
21. Further the PW.1, to prove his financial capacity, he has produced rental agreements and same were got marked at Exs.P13 to P16 and P21. On carefully perusal of the said rental agreements, it appears that the complainant and his wife have executed the said agreements to the various persons in the year end of 2018 and in the year 2019. But in the present case transaction was held on 10.07.2018 as per say of complainant. It clearly appears that after completion of the complaint transaction, the complainant and his wife executed the rent agreements. Hence, the said documents are not helpful to the complainant to prove his source of income at the time of transaction. Further, he did not try to adduce the evidence of any one of his lessee to prove that they have given advance amount as per rental agreements.
22. Further contention of complainant is that he has borrowed an amount of Rs.36 lakhs from his relative by name S.Ravikumar and lent the same to the accused. On carefully perusal of the Exs.P35 and P36 - Notarized copy of On demand promissory note and consideration receipt, it appears that the transaction was Judgment 20 C.C.No.3820/2019 held on 15.02.2018. In the present case on hand, as per complaint version, the accused has approached him in the month of June 2018 and he lent an amount of Rs.87 lakhs to the accused on 10.07.2018. Itself creates doubt that how he obtained loan from the S.Ravikumar before 5 months as alleged date of transaction without approaching by the accused for loan. It clearly manifests that the complainant for his personal purpose borrowed loan from S.Ravikumar and not lent the same to the accused. The said documents are also not supported to the contention of complainant and further he did not try to adduce the evidence of said S.Ravikumar before the court. To substantiate his case, the complainant has not placed any cogent and convincing materials before the court. No prudent man lend such a huge amount to other person without obtaining any property documents or agreements or any other security documents. Rs.87 lakhs is not a smaller amount, it is an huge amount. Further, there is no evidence on behalf of complainant that how he has mobilized sum of Rs.87 lakhs.
23. The PW.1, in his cross-examination, has admitted that as per Exs.P26 to P28 and P31 to P33, he has obtained gold loan from Repco Bank and Veerashaiva Sahakari Bank Ltd. When the complainant himself was a borrower as per Exs.P26 to P29 and Judgment 21 C.C.No.3820/2019 P31 to P33, how it is possible him to give huge amount of loan to another person like accused. It is one of the strong doubtful circumstances created in the mind of this court that he was a borrower, how he mobilized the huge amount of Rs.87 lakhs. In this regard, there is no proper explanation is forth coming from the side of complainant. Itself creates doubt regarding the financial capacity of complainant to lend the huge amount of Rs.87 lakhs to the accused. The complainant has not produced cogent and convincing documents before the court to prove that on the alleged date, he had possessed cash an amount of Rs.87 lakhs in his hand. Without any substance, the complainant stated that he paid the alleged loan amount to the accused, it is highly impossible to accept the claim put forth by the complainant. Therefore, he needs to prove his source of income or mobilization of fund. Accused got rebutted the statutory presumption as well as the financial capacity of the complainant.
At this juncture, it is worthy to cite the decision reported in AIR 2011 (NOC) 75 (KAR) (Amzad PashaV/s. H.N.Lakshmana). Wherein, it was pleased to held that:
(B) Negotiable Instruments Act (26 of 1881). S. 138 -
Dishonour of cheque - Accused alleged to have taken loan from complainant - Complainant has not placed any evidence to show that he had financial capacity to lend Judgment 22 C.C.No.3820/2019 substantial amount of Rs.4,50,000/- - Admittedly no document evidencing the loan transaction has come into existence - Case of complainant that he had lent Rs.4,50,000/- to the respondent is highly impossible and not acceptable - None of witnesses in presence of whom loan amount was paid by complainant examined by complaint - Adverse inference can be drawn against complainant - Accused liable to be acquitted".
24. From the point of above dictum also it made clear that the complainant has not produced cogent and convincing documents before the court to establish that he had physically hard cash of that much huge amount on the alleged date. The presumption under Section 139 of Negotiable Instruments Act, could be raised in respect of some consideration and burden is on the complainant to show that he had paid the 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, which was so observed in a decision reported in AIR 2008 SC 278, in a case between John K John V/s. Tom Verghees, rendered by the Hon'ble Apex Court.
25. By virtue of the said dictum also, the complainant has utterly failed to discharge the reverse burden of proving his financial capacity. The accused has denied that she has taken Judgment 23 C.C.No.3820/2019 loan amount of Rs.87 lakhs from the complainant and also issuance of questioned cheque in favour of complainant for discharge of legally enforceable debt. To disprove the said contention of accused, the complainant has cross-examined the accused in length, but nothing is elicited from the mouth of DW.1 to believe the case of complainant.
26. The learned counsel for accused has argued that mere issuance of cheque and admission of the signature on the cheque is not a proof of receiving of amount from the complainant. Hence, he prayed to acquit the accused.
It is worthy to cite the decision reported in ILR 2009 KAR 2331 in the case of B.Indramma V/s. Sri.Eshwar. Wherein, the Hon'ble High Court of Karnataka observed that:
"When the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by the complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that the cheque in question bears his signature would not be sufficient proof of the fact that he delivered the said cheque to the complainant and the latter 'received it from the former' so as to raise the presumption U/s 139 of N.I.Act."
Judgment 24 C.C.No.3820/2019 In another decision reported in AIR 2019 SC 1983 in the case of Basalingappa V/s. Mudibasappa. Wherein, the Hon'ble Apex observed that:
"Drawing of presumption under, and how said presumption can be rebutted - Standard of proof - While prosecution must establish its case beyond reasonable doubt, accused to prove a defence must only meet standard of preponderance of probabilities."
In view of the above decisions, in an offence punishable under Section 138 of Negotiable Instrument Act, the cheque in question bears with signature would not be sufficient proof of the fact that she delivered the said cheque to the complainant.
27. During the course of cross-examination of DW.1, the complainant has confronted some cheques pertaining to accused and same were got marked as Exs.P39 to P50. The complainant did not explain, how the said cheques came into his possession. It appears that the complainant has taken the said cheques from Suhas and filed the present false case against the accused for gaining of illegal money. The accused has strongly denied the issuance of cheques and hand writings made on the said cheques. In this regard there is proper explanation is forth Judgment 25 C.C.No.3820/2019 coming from the side of complainant, who filled up questioned cheque as well as other cheques.
28. Further, in this case, the documents placed by the complainant before the court do not speak that the complainant has paid an amount of Rs.87 lakhs to the accused on 10.07.2018. As discussed above, the complainant has utterly failed to prove that the accused has issued Ex.P1-cheque for discharge of legally recoverable debt of Rs.90,50,000/-.
29. When the complainant has failed to prove his claim as the amount involved in the cheque at Ex.P1 is the existence of legally recoverable debt, it is the reverse burden on the complainant to prove his case beyond the reasonable doubt by virtue of Section 139 of Negotiable Instruments Act.
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 extend to the extent that cheque was issued for the discharge of any debt or liability, which is required to be proved by the complainant".
Judgment 26 C.C.No.3820/2019 In another decision reported in AIR 2008 SC 278 between John K John V/s. Tom Verghees, wherein the Hon'ble Apex court was pleased to observed 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".
30. 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. In that regard, as discussed earlier, the complainant has utterly failed to prove his case beyond all reasonable doubt by adducing cogent and convincing material before the court. Thus, the accused has rebutted the legal presumptions available under Sections 118(a) and 139 of Negotiable Instruments Act. Hence, the accused is entitled for benefit of doubt for acquittal.
31. In the present case on hand, the accused has admitted the receipt of legal notice sent by complainant and she has issued reply notice to the legal notice of complainant. From which, it Judgment 27 C.C.No.3820/2019 made clear that the legal notice as required under Section 138(b) of Negotiable Instruments Act was served upon accused and complainant has complied the Section 138(b) of Negotiable Instruments Act.
32. On overall appreciation of the material facts available on record, it discloses that the complainant has failed to prove his case with cogent and convincing evidence.
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".
33. In this case on hand, the complaint failed to prove that the accused is liable to pay Ex.P1-cheque amount of Rs.90,50,000/- and it is legally recoverable debt. On perusal of the oral and documentary evidence placed on record, it is crystal clear that accused has made out a probable case which clearly rebut the presumptions arisen in favour of complainant. Accused has proved that she is not liable to pay the Ex.P1-cheque amount of Rs.90,50,000/- to the complainant. The accused has taken her Judgment 28 C.C.No.3820/2019 defence at the earliest point of time, while recording of accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablized that complainant has failed to prove that accused is liable to pay the the cheque amount of Rs.90,50,000/- to the complainant. Therefore, 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 No.1 in the Negative.
34. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 15 th day of July - 2022) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 29 C.C.No.3820/2019
ANNEXURE
List of Witnesses examined on behalf of Complainant:
PW-1 : N.S.Vishwanath 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
Exs.P4 & P5 : Postal receipts
Ex.P6 : Postal acknowledgment card
Ex.P7 : Unserved R.P.A.D cover
Ex.P7(a) : Legal notice at Ex.P7
Ex.P8 : Visiting Card
Exs.P9 to P12 : Statement of accounts
Exs.P13 to P16 : Rent agreements
Ex.P17 : Property tax receipt
Exs.P18 & P19 : Katha certificate and Extract
Ex.P20 : Property tax receipt
Ex.P21 : Rent agreement
Exs.P22 to P25 : Share application money receipts
Exs.P26 to P29 : Loan receipts and ID Cards
Ex.P30 : Statement of account
Exs.P31 & P32 : Gold loan receipts
Ex.P33 : Bank passbook
Ex.P34 : Statement of account
Exs.P35 & P36 : Notarized copies of On demand promissory
note and consideration receipt
Exs.P35(a) & P36(a) : Signatures of complainant Ex.P37 : Reply notice Ex.P38 : CC of private complaint in C.C.No.16515/19 Exs.P39 to P50 : Original cheques Ex.P51 : CC of private complaint in C.C.No.22125/19 Ex.P52 : CC of private complaint in C.C.No.27976/19 Ex.P53 : Colour xerox copy of registration certificate of establishment List of Witnesses examined on behalf of the defence:
DW.1 : Khushi Radhya Judgment 30 C.C.No.3820/2019
List of Exhibits marked on behalf of defence:
Ex.D1 : Copy of phone bill
Ex.D2 : Copy of Memorandum of Association
(Amended) of Vivid Ventures Pvt. Ltd.
Exs.D3 & D4 : Computer generated copies of gmail
Ex.D5 : Copy of phone bill
Ex.D6 : Cash / Credit bill
Ex.D7 : Trip Sheet
Ex.D8 : CC of private complaint in C.C.No.27473/19
Ex.D9 : CC of sworn statement and depositions in
PCR No.14238/19
Ex.D10 : CC of cheque and bank endorsement
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 31 C.C.No.3820/2019
15.07.2022.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide separate order.
***** 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.