Bangalore District Court
J.Karunakaran vs C.Raja on 1 December, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 1st day of December - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.166/2016
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : J.Karunakaran,
S/o.Jayavelu,
Aged about 31 years,
R/at No.18, Channenahalli,
Kadubagere Post,
Mahemannana Palya,
Bengaluru North, Bengaluru-23.
(Rep. by Sri.K.Murthy, Adv.)
V/S
Accused : C.Raja,
S/o.Late.Chavari,
Aged about 35 years,
C/o. Parvathamma Chavari,
No.09, Avalamma Chowtry,
3rd Main, 1st Cross, Magadi Road,
Bengaluru-23.
(Rep.by Sri.Lokesh R Yadav, 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 : 01.12.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.166/2016
JUDGMENT
The complainant has presented the instant complaint against the accused on 16.05.2014 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.5 lakhs.
2. In brief, the complainant case is:
The complainant and accused were known to each other past from several years. Due to the said friendship, the accused had requested the complainant for financial assistance during the month of February, 2016 for his needs and necessities, and accused had received sum of Rs.5 lakhs from the complainant by way of cash for his needs and necessities in the month of March, 2013. The accused had agreed to repay the same within a year and towards the repayment of the said amount, he had issued a cheque bearing No.252156 dated:07.03.2014 for sum of Rs.5 lakhs drawn on HDFC Bank, Magadi Chord Extension, Bengaluru, in favour of complainant and instructed the complainant to present it.
The complainant has further contended that, he presented the said cheque for encashment through his banker viz., ICICI Bank, RPC, Bengaluru. Surprisingly, the said cheque came to be Judgment 3 C.C.No.166/2016 dishonoured for the reasons "Account Closed" as per memo dated:11.03.2014, the same has been intimated by the complainant to the accused.
The complainant has further alleged that, immediately after brought to the notice of accused, he promised to pay the amount covered under the cheque within a week, but he did not pay the same. On the other hand, he stated prolonging the same on one or other pretext. Hence, on 26.03.2014 he got issued legal notice to the accused by way of RPAD and demanding him to pay the amount covered under the cheque. The same were duly served on him and he personally came and requested the complainant to grant some more time to pay the amount after receipt of legal notice. Instead of settle the amount, he kept postponed the same without any reasons. Finally, the accused did not pay the amount to the accused, since complainant had not received either un- served RPAD cover or postal acknowledgment; he gave complaint to the postal authority on 29.04.2014. The complainant had not received the postal acknowledgment, inspite of that, the accused has not paid the amount covered under the cheque. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
Judgment 4 C.C.No.166/2016
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 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 P4. The PW.1 was subjected for cross-examination by the advocate for the accused. The PW.1 is also choosen to examine his father by name U.Jayavelu as PW.2 and he chosen to filed affidavit evidence, despite gave sufficient opportunities, the PW.2 not tendered for cross-examination, therefore, on 04.02.2020 his cross-examination was taken as nil. In the cross-examination of PW.1, accused counsel got confronted one document and same is marked as Ex.D1.
Judgment 5 C.C.No.166/2016 6. Thereafter, incriminating evidence made against the
accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by him was recorded.
In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D2 to D12 and also subjected for cross-examination by the advocate for the complainant.
7. The complainant counsel addressed his side oral arguments. The accused counsel has not addressed 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.5 lakhs as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused got issued the Ex.P1 cheque bearing No.252156 dated:07.03.2014 for sum of Rs.5 lakhs drawn on HDFC Bank, Magadi Chord Extension, Vijayanagar Club Road, 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 Judgment 6 C.C.No.166/2016 Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
-:UNDISPUTED FACTS:-
10. The fact that, one U.Jayavelu, who his PW.2 herein is the father of the complainant herein is not in dispute. The fact that, one Mr.N.S.Shivanna and Mr.P.Srinivas got issued legal notice to the accused in respect of dishonour of cheques bearing No.252160 and 252155 for sum of Rs.8 lakhs and sum of Rs.2,50,000/- respectively as found in Exs.D2 and D4 is not in dispute. The fact that, as per Ex.D6 BBMP got allotted property in the name of Smt.Narasamma is not in dispute. The fact that, as found in Ex.D9 Smt.Narasamma had executed affidavit is not in dispute. The fact that, as found in notice dated:25.04.2015 the accused gave stop payment instruction to his banker is not in dispute. The fact that, Ex.D10 cheque bares the signature of the accused which got issued in favour of complainant dated:25.03.2014 for the tune of Rs.10 lakhs is not in dispute. The fact that, Smt.Prema and Rajendra were died is not in dispute. The fact that, as found as Ex.D12 some of the persons were gave Judgment 7 C.C.No.166/2016 representation to human rights commission with regard to allotment of house/property 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 P4, they are:
a) Ex.P1 is the cheque bearing No.252156 issued by the accused for sum of Rs.5 lakhs dated:07.03.2014, drawn on HDFC Bank Ltd., Magadi Chord Extension, Vijayanagar Club Road, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:11.03.2014.
d) Ex.P3 is the Legal Notice dated:26.03.2014.
e) Ex.P4 is the Postal receipt.
12. The PW.1 was subjected to the cross-examination by the advocate for the accused. After cross-examination of PW.1, he choosen to examined his father by name Sri.U.Jayavelu as PW.2 and he choosen to filed affidavit evidence, but despite gave sufficient opportunities, the PW.2 not tendered for cross-
Judgment 8 C.C.No.166/2016 examination, therefore, on 04.02.2020 his cross-examination was taken as nil.
13. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same. In order to prove the defence of the accused, the accused himself choosen to entered into witness box and examined as DW.1 on oath and filed affidavit evidence.
14. No doubt, in this case, the accused was entered into witness box and filed affidavit evidence. The filing of affidavit by the accused in lieu of his probable defence is not opposed by the complainant. Mere because of she not sought permission under Sections 315 and 316 of Cr.P.C., it does not a ground to out-rate reject the probable defence set out by the accused. Mere because Section 145(1) of Negotiable Instruments Act does not expressly permit the accused to filed affidavit evidence, it does not mean that, the court cannot allow the accused to give his evidence on affidavit. By applying the same analogy, unless there is just and reasonable ground to refuse such permission. There is no express bar on accused to give evidence on affidavit either in the accused or in the court.
Judgment 9 C.C.No.166/2016 In a decision reported in 2006 SCC online, Bombay 703, in a case between Peacock Industries Limited Vidhyadhar and others V/s. Dudhrani Finance Limited Bombay and another . Ratio layout therein was partly firm in a decision reported in (2010) 3 SCC 83, in a case between Mandovi Co-operative Society Ltd., V/s. Nimesh B Takore. Wherein, by citing the decisions reported in KSL and Industries Ltd., case, it was pleased to observed that, the observation made by the Division Bench in KSL and Industries Ltd., case, clearly indicate that, even the accused should be given option to lead her evidence on affidavit. But such request should be made in writing as providing for Section 315(1) of Cr.P.C. Wherein, lordship was pleased observed that, fine no justified reason to refuse permission to the accused to give his evidence on affidavit subject to the provisions contained in Sections 315 and 316 of Cr.P.C.
That apart, in a judgment passed by the Hon'ble High Court of Karnataka dated:13th Day of February 2020 in a case between Jagadeesh Hiremath and R. Venkatesh in Criminal Appeal No.907 of 2017 A/W Criminal Appeal No.908 of 2017 is pleased to observed that, in view of the orders of this court in Criminal Petition No.9331/2017 C/w Criminal Petition No.9332/2017 dated:
02.07.2019, wherein following the law laid down by the Hon'ble Judgment 10 C.C.No.166/2016 Supreme Court in Indo International Ltd., & Another V/s. State Of Maharasthtra & Another, 2005 Crl.L.J.208, it is held that, "The court dealing with a complaint under Section 138 of the said Act of 1881 had an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence witnesses, if any on affidavit"
15. In the affidavit evidence of the ac, he contended that, the questioned cheque was not issued to the complainant, but he had issued his 5 - 6 cheques to U.Jayavelu who is the father of complainant herein for the reason that, he was a reputed residence and at that time, the family of the accused property had been acquired by the Metro Railway Department and to take compensation, the father of the complainant said to the accused that, he will reputed the accused and his family in all stages of the legal and other proceedings. Hence, he collected 5 - 6 cheques in case it was ended, at the time of receive compensation amount. Hence, accused had given his HDFC Bank Ltd., Magadi Road Branch, Bengaluru, cheques, the said cheques signed on empty paper. The said father of the complainant got misused those cheques given to him through one Mr.P.Srinivas, Mr.N.S.Shivanna as well as through his son the complainant herein. In that regard the legal notice has issued by Mr.N.S.Shivanna and Mr. P.Srinivas Judgment 11 C.C.No.166/2016 through his advocate after bouncing of cheque is been produced by him. In the said legal notice, it can be seen that, the same HDFC Bank Ltd., Magadi Road Branch cheques series serial number cheques such as cheque No.252155 to 252160 were bounced against the accused. Against the same, the accused had lodged complaint against them and they did not proceed to continue the case and stopped the same, which shows they are try to misuse cheques of the accused given to father of the complainant herein with an ulterior motive and to make financial loss.
The accused has further contended that, Smt.Narasamma had given General Power of Attorney to the wife of brother of accused by name Smt.Prema W/o. Late.Rajendra. Since the brother of the accused was died, accused took care of his brother's family and help them. The accused wishes to approach the Metro Railway Department to get the benefit to Smt.Narasamma to Smt.Prema, since Smt.Prema was widow. The accused being a family member and took responsibility of his family by innocence, he gave 5 - 6 cheques to Mr.Jayavelu. In that regard, he produced General Power of Attorney executed by Smt.Narasamma in favour of Smt.Prema, dated:10.04.2002. The accused never issued the above disputed cheque to the Judgment 12 C.C.No.166/2016 complainant herein. The accused already made the stop payment instruction in respect of above disputed cheque to his banker and when complainant came to know about the same, he made threat through some people. During the course of cross of PW.1, he admitted that, his father had taken the cheques from the accused and after the Commissioner had directed him to take action on the complaint lodged by the accused, his father had been summoned by the Magadi Road Police Sub-Inspector Smt.Kavitha, and another cheque which were in the possession of the father of complainant herein bearing No.252591 for sum of Rs.10 lakhs drawn on HDFC Bank Ltd., which was returned by him to the accused. The said cheque was also marked through PW.1. The accused ever took the financial assistance for the tune of Rs.5 lakhs from the complainant as alleged in the complaint, even he had no financial capacity to lend such huge amount. In order to show that, he had such financial capacity, the complainant has not produced any document before this court. As alleged by the complainant, he never approached him nor borrowed the alleged loan or issued questioned cheque for payment of Rs.5 lakhs as alleged by the complainant. Hence, he is not liable to pay any money and whatever the cheque took by the father of the complainant got misused through the complainant herein as well Judgment 13 C.C.No.166/2016 as two other persons cited supra, which were given to him in connection to receive compensation from the Metro Railway Department for acquisition of family property. Hence, he prayed for his acquittal.
16. Apart from the accused also choosen to produced the documents at Exs.D1 and D12. They are:
a) Ex.D1 is the copy of complaint dated:25.04.2015 lodged by accused herein before the Commissioner of Police, No.1, Infantry Road, Bengaluru City against N.S.Shivanna and P.Srinivas.
b) Ex.D2 is the true copy of legal notice dated:19.03.2015 issued by N.S.Shivanna through his counsel to the accused herein.
c) Ex.D3 is the true copy of R.P.A.D., cover.
d) Ex.D4 is the true copy of legal notice dated:20.04.2015 issued by P.Srinivas through his counsel to the accused herein.
e) Ex.D5 is the true copy of R.P.A.D., cover.
f) Ex.D6 is the true copy of house allotment letter dated:04.10.1991 issued by BBMP to one Smt.Narasamma.
g) Ex.D7 is the true copy of General Power of Attorney dated:10.04.2002 executed by Smt.Narasamma in favour of one Smt.Prema.
h) Exs.D8 and D9 are the Notarized copies of affidavits dated:10.04.2002 sworn by Smt.Narasamma.
i) Ex.D10 is the original cheque bearing No.252159 dated:25.03.2014 for Rs.10 lakhs pertaining to accused herein issued in favour of one U.Jayavelu drawn on HDFC Bank.
Judgment 14 C.C.No.166/2016
j) Ex.D11 is the copy of computer printed copy of query on case number pertaining to W.P.No.512/2013 and
k) Ex.D12 is the copy of complaint dated:17.11.2012 lodged before Human Rights.
The DW.1 was subjected to the cross-examination by the advocate for the complainant.
17. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheque at Ex.P1. Therefore, it is needs to draw the presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is prove, the holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheque was drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued Judgment 15 C.C.No.166/2016 the Ex.P1-cheque unless and until contrary prove. Therefore, as per those sections, it made clear that, it is the initial onus on the accused to prove his case based on the principles of 'Preponderance of Probabilities'.
It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also it was pleased to observed that, the accused can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be Judgment 16 C.C.No.166/2016 any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to observed that, mere denial of issuing cheque, whether is sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial of issuing cheques would not be sufficient as it is time and again noted that, once the cheque issued duly signed by the accused, the presumption goes against him as per Section 139 of Negotiable Instruments Act.
18. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, guilt of Judgment 17 C.C.No.166/2016 accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the materials brought on record by parties, but also by reference to the circumstances upon which he relies.
19. On going through the materials available on record coupled with order sheet entries in discloses, whatever the 6 days delay in filing the present case was condoned by the then Presiding Officer as per the order dated:16.07.2015, the said order remains un- challenged by the accused.
20. On going through the rival contentions of the parties, it made clear that, the complainant brought the present case based on the Ex.P1 - cheque by contending, the accused got issued the same for re-payment of Rs.5 lakhs, despite, got issued legal notice and its service, the accused has not paid the money. If the accused has admitted the claim put fourth by the complainant, then it requires to accept the claim of complainant. However, the accused after mark his appearance in the present case very oftenly on 06.02.2017 through his counsel has contested the claim of complainant and denied the entire claim put fourth by the Judgment 18 C.C.No.166/2016 complainant. The accused has set out his strong defence that, the father of complainant by name Sri.U.Jayavelu was reputed person in their residence, at the time of family property had been acquired by the Metro Railway Department, in order to take compensation, the father of the complainant assured the accused that, he would represent the accused and his family in all stages of the legal and other proceedings and in that regard, he had collected 5 - 6 cheques for receiving compensation. Accordingly, the accused gave 5 - 6 cheques along with signed one empty paper. The cheques so collected by the father of complainant got misused through various persons such as, Mr.P.Srinivas, Mr.N.S.Shivanna and complainant herein, apart from he himself got used cheque bearing No.252159 for sum of Rs.10 lakhs as found in Ex.D2, D4 and D10. Except the father of complainant and other 3 persons including complainant herein got bounced cheques of the accused and got issued legal notice as per Ex.D2, D4 and D10 as well as Ex.P3 legal notice. Since, the complainant's father got misused his cheques, he lodged complaint to the Commissioner of Police, wherein the father of complainant was appeared before the Magadi Road Police Station, as in view of the accused lodged complaint as per Ex.D1 and got returned the Ex.D10 - cheque to the accused and the Judgment 19 C.C.No.166/2016 other persons Mr.P.Srinivas and Mr.N.S.Shivanna though got issued legal notice as per Ex.D2 and D4, not pursued the proceedings. The complainant's father totally got misused cheques of the accused.
21. The accused also strongly contended that, Smt.Narasamma had given General Power of Attorney to the wife of brother of accused by name Smt.Prema and on account of death of his brother, the accused took care about the family and in order to help them to take the compensation from Metro Railway Department in the name of Smt.Prema, innocently he gave the above said 5 - 6 cheques to Sri.U.Jayavelu and he got misused the same. By taking such defence, the accused has attack on the claim of complainant that, his father in connection to facilitated the accused and his family members in got compensation from Metro Railway Department in view of acquisition of there property in order to assist he took 5 - 6 cheques and got misused through various persons stated above. In that regard, he got produced documents at Exs.D1 to D12. On going through the documents produced by the accused Ex.D1 discloses, the accused lodged complaint against one Mr.N.S.Shivanna and Mr.P.Srinivas before the Commissioner of Police. Wherein he cited the reference of private complaint filed by the complainant herein against the Judgment 20 C.C.No.166/2016 accused and strongly alleged the misuse of his 5 - 6 cheques given to the father of the complainant herein. The factum of filing of complaint at Ex.D1 is not in dispute. Though, there is not mentioning about the name of the father of complainant it was stated, about the reference of complainant herein has filed the present case and accused gave his cheques to his father. Thereafter, Exs.D2 and D4 it discloses, the above the said Mr.N.S.Shivanna and Mr.P.Srinivas in respect of the cheques bearing Nos.252160 and 252155 for sum of Rs.8 lakhs and Rs.2,50,000/- each issued the cheque bounce notice as such, is not in dispute. The accused has contended, those persons in collusion with the complainant and his father, though he not borrowed the alleged loan made mentioned therein and got issued legal notice and they have not persuaded the case. The Exs.D2 and D4 clearly manifest the above said two persons got issued demand notice to the accused as to dishonour of cheques. The same factum is also not been denied by the complainant herein, the Exs.D3 and D5 are the true copies of postal covers, which are not in dispute.
22. The accused in order to show that, Smt.Narasamma had the property he choosen to produced Ex.D6, the notice issued by the BBMP dated:04.10.1991. The said document is not in Judgment 21 C.C.No.166/2016 dispute, as to family members of the accused by name Smt.Narasamma had owned the property. The Ex.D7 discloses, in connection to the said property, the said Smt.Narasamma had executed General Power of Attorney in favour of Smt.Prema. The said Smt.Prema is none other than the wife of deceased brother of accused is not in dispute. The Ex.D9 is also discloses, the said Smt.Narasamma had executed affidavit by raising her no objection, the same is not in dispute.
23. The accused got produced another cheque at Ex.D10 by contending that, the father of the complainant by name Sri.U.Jayavelu got misused his cheque at Ex.D10 by mentioning the huge amount of Rs.10 lakhs and in pursuance of he lodged complaint before the Police Commissioner as per Ex.D1, he was called and thereafter his father got returned the Ex.D10 cheque to the accused. On going through the Ex.D10 cheque it discloses, the admitted signature of the accused and other writings and date made mentioned therein dated:25.03.2014 are in deferent hand writing and ink. During the course of addressed the arguments by the advocate for the complainant, he denied the allegation made by the accused from the point of Ex.D10 and vehemently contended that, it was creation by the accused. If it was the creation of accused, it is the complainant or his father needs to Judgment 22 C.C.No.166/2016 say on those documents, but in that documents to disbelieve the contention of the accused nothing has whispered.
24. The DW.1 clearly manifest the defence of the accused that, father of the complainant got try to use the Ex.D10 cheque for the tune of Rs.10 lakhs by mentioning his name, date and amount, but for the development made by the accused by way of lodge complaint, the Ex.D10 was not used and consequently returned to the accused needs to be accepted. As, the complainant not deposed contrary to the same nor PW.2 tendered for cross examination to give necessary explanation on the serious allegations made against him, as to misuse of Ex.P1 - cheque or Ex.D10 cheque nor the contentions taken out by Mr.N.S.Shivanna and Mr.P.Srinivas. Therefore, the adverse inference has to be drawn against the complainant that, since PW.2 - father of the complainant got misused the questioned cheque including cheques made mentioned in Exs.D2, D4 and D10, he avoided enter into witness box. The Ex.D12 discloses, several persons have lodged complaint to the Managing Director of Bengaluru Metro for provide the alternative sites. The contents of the same is not subject matter of the present case. The accused by way of production of Exs.D1 to D10 clearly manifest his defence, as to misuse of his 5-6 cheques by the father of the complainant. It Judgment 23 C.C.No.166/2016 also requires to appreciate the oral evidence of PW.1 from the point of defence allegations suggested to PW.1.
25. During the course of cross of PW.1, he deposed that:
"ನನನ ತತದ ಕಕಡ ಅದದ ಪರಸರದಲ ವಸಸಸವ ಹರಯರದದರತದ, ಆರಕದಪಯ ಭಕ ಸಸಧದನ ಸತಬತಧ ಪರಹರವನಸ ನ ಪಡಯಸವ ಸಲಸವಗ, ನನನ ತತದ, ಆರಕದಪಯತದ ಸಹ ಮಡದ ಐದಸ ಖಲ ಚಕಸ ನ ಪಡದದದರಸ ಎತದರ ನನಗ ಗಕತತಲಲ.
ಕ ಗಳನಸ ಪರಹರ ಪಡಯಲಸ
ಪಪಮಣ ಪತ ತವನಸ
ನ ಸಲಸಲಸ, ಖಲ ಕಗದಕಕ ಆರಕದಪಯ ಸಹಯನಸ
ನ
ಕಕಡ ಪಡದದದರಸ ಎತದರ ಸರಯಲಲ. ಆ ಸತಬತಧ ಆರಕದಪ, ನನನ ಮತಸತ ನನನ ತತದ, ಶವಣಣ ಮತಸತ ಶಪದನವಸ ರವರಸಗಳ ವರಸದದ ಪದಲಸಠಣಗ ದಕರಸ ನದಡದದರಸ ಎತದರ ಸರ. ಸದರ ಘಟನಗ ಸತಬತಧಪಟಟತತ ನವಗಳಸ ಪದಲದಸಠಣಯಲ ಹದಳಕಯನಸ ನ ನದಡದವತದರ ನನಸ ಠಣಯತದ ಹಕರಗಡ ಇದನಸ, ನನನ ತತದ ಕಕಟಟರಬಹಸದಸ, ನನಗ ನನಪಲಲ ಎತದಸ ನಸಡಯಸತತರ. ಆರಕದಪಯತದ ಅಕ ತಮವಗ ಪಡದತತಹ ಐದಸ ಖಲ ಚಕಸ ನ ಬಳಸಕಕತಡಸ ನನನ ತತದ, ಶಪದನವಸ, ಕ ಗಳನಸ ಶವಣಣ ಮತಸತ ನನನ ಮಸಖತತರ ಸಸಳಸ ಳ ಚಕ ಬನನ ಪಪಕರಣಗಳನಸ ನ ದಖಲಸದರ ಎತದರ ಸರಯಲಲ. ಶವಣಣ ದಖಲಸರಸವ ಪಪಕರಣ ಇದದ ನನಯಲಯದಲ ಕಳದ ಒತದಕವರ ತತಗಳ ಹತದ ವಜಗಕತಡದ ಎತದರ ಸರಯಲಲ. ಶಪದನವಸ ಕಕಡ ಆರಕದಪಯ ವರಸದದ ಯವದದ ಪಪಕರಣ ದಖಲಸಲಲ ಎತದರ ಸರಯಲಲ. ಆರಕದಪಯ ವರಸದದ ದಖಲಸರಸವ ಇತರ ಪ ಪಕರಣದ ಚಕಸ ಕ ಗಳಕ ಕಕಡ ನಪ-1 ರ ಬನತಕನ ಖತಗ ಸತಬತಧಪಟಟದ ಎತದರ ನನಗ ಗಕತತಲಲ. ನನನ ತತದಯನಸ ನ ಈ ಪಪಕರಣದಲ ವಚರಣಗ ಒಳಪಡಸಲಸ ತಕತದರ ಇಲಲ. ಆರಕದಪ ನನನತದ Judgment 24 C.C.No.166/2016 ಎತದಗಕ ರಕರ5 ಲಕ ಸಲ ಪಡದಲಲ ಮತಸತ ಆ ಹಣ ಮರಸಪವತಗಗ ನ ನದಡಲಲ ಎತದರ ಸರಯಲಲ. ನನನ ತತದ ಪಡದತತಹ ಖಲ ನಪ-1 ರ ಚಕಕನಸ ಚಕಸ ನ ನನಸ ಬಳಸಕಕತಡಸ ಆರಕದಪಯ ವರಸದದ ಕ ಗಳ ಪಪಕ,ಒತದಸ ಚಕಕನಸ ಳ ಪಪಕರಣ ದಖಲಸ ಮಡದನತದರ ಸರಯಲಲ. ಆರಕದಪ ನಪ-1 ರ ಸಸಳಸ ಚಕನ ಮತತ ನನಗ ನದಡಲಸ ಬಧನನಲಲ ಎತದರ ಸರಯಲಲ."
26. When there was serious allegations made against the complainant that, since the father of the complainant was senior and reputed person in the vicinity of the accused for obtaining the compensation, he took 5 - 6 blank cheques from the accused. But, the PW.1 not denied and expressed his inability by stating that, he does not know. But, he denied the suggestion that, in order to receive compensation, the father of the complainant took signed blank paper. The said signed blank paper is not placed by the complainant in the present case, therefore, his denial would not play any vital role. The PW.1 has categorically denied that, accused against, complainant, his father, Mr.N.S.Shivanna and Mr.P.Srinivas lodged the complaint in the Police Station. The PW.1 has not denied the suggestion made to him that, in connection to the said incident, those persons were gave statement in the Police Station, but without denying the same, he stated that, at that time, he was out side from the Police Station and his father might have been given the statement, but he does Judgment 25 C.C.No.166/2016 not remember. Thereby, the accused lodged the complaint against the above referred persons and his father got gave the statement in the Police Station is also remains undisputed.
27. In the above said cross-examination, the PW.1 has denied the suggestion made that, his father illegally took 5 blank cheques from the accused and got misused in collusion with complainant, Mr.P.Srinivas and Mr.N.S.Shivanna by way of filing cheque bounce cases is been denied by him. The PW.1, though he deposed as such, the production of Exs.D2 & D4 notices were issued by the said Mr.P.Srinivas and Mr.N.S.Shivanna clearly manifest, the cheques of the accused were tried to make use. Therefore, the denial of PW.1 has no base. The PW.1 has denied the suggestion that, whatever the case filed by Mr.N.S.Shivanna was came to be dismissed by this court. In that regard, no document is been placed by both side. Even though, PW.1 has denied the suggestion that, Mr.P.Srinivas had not lodged any complaint against the accused, but the Ex.D4 clearly manifest the demand made by him, therefore, non filing case would not suffice, but it indicates the effort made by Mr.P.Srinivas in misuse the cheque, against the accused.
Judgment 26 C.C.No.166/2016
28. The PW.1 has not denied, but deposed, he does not know whatever the cheques of the accused were dishonoured pertaining to the same bank account held at Ex.P1. More categorically PW.1 has deposed that, he had no impediment to examine his father. Though he choosen to examined his father as PW.2 on the subsequent events, though, he filed affidavit by denying the defence taken by the accused and for the reasons better known to him, when there is serious allegations against the father of complainant, who is PW.2 herein for the reasons better known to him, he not tendered for cross-examination. In the affidavit evidence of PW.2 apart from he denial of the contention including he got misused the Ex.D10 cheque and made misuse of the other cheques of accused, through Mr.N.S.Shivanna and Mr.P.Srinivas and complainant herein, he contended in order to divert the mind of court, the complainant taken false defence by way of misguide. He contended that, infact for legally recoverable debt, the complainant had filed the present case and contending he was doing business in railway station and PW.2 had held financial in the business of complainant, as and when required. Except the said contention nothing has contended by the PW.2. In order to ascertain, whether the allegations made by the accused against PW.2 as to misuse of 5 - 6 blank cheques of the Judgment 27 C.C.No.166/2016 accused through complainant, Mr.P.Srinivas and Mr.N.S.Shivanna, the PW.2 needs to enter into witness box and withstood his contention. But for the reasons better known to him, despite, gave sufficient opportunities, the PW.2 without answering the allegations made by the accused throughout the case, he ran away from the witness box thereby, created doubtful circumstances to draw the adverse inference that, since the defence taken by the accused were to be true in order to disclose the truth, the PW.2 has avoid to tender for cross-examination. Accordingly, the adverse inference has done against PW.2 that, in order to avoid disclosure of truth from the point of allegation made by the accused being a father of complainant, he avoided entering into witness box. Hence, it made clear that, the evidence led by PW.2 by way of affidavit is false. Therefore, he not tendered for cross-examination in order to test his veracity of truth. Therefore, by way of PW.2 himself ran away from the witness box, has created strong doubtful circumstances against him as to misuse of questioned cheque, Ex.D10 and other cheques through Mr.P.Srinivas and Mr.N.S.Shivanna.
29. In the above said reproduction of cross-examination in the last portion it also made clear that, though PW.1 choosen to examine his father subsequently, his evidence not fit for appraisal Judgment 28 C.C.No.166/2016 as not tendered for cross-examination. The accused was specifically suggested to PW.1 that, ever the accused not borrowed loan of Rs.5 lakhs from the complainant and for its repayment never issued Ex.P1 - cheque to the complainant. Though PW.1 has denied, he avoided his father to examine before this court to disclose truth. There was serious allegation made against to PW.1 that, the father of complainant who took blank cheques of the accused got misused Ex.P1 - cheque through the complainant and filed the false case, therefore, the accused not liable to pay the amount covered under the cheque. Though, PW.1 has denied the factual circumstances and conduct of PW.2 in avoiding for tendering cross-examination clearly manifest the defence of the accused that, since the contention of the accused were to be true the PW.1 not denied he same nor examined PW.2 by way of cross-examination. Thereby, the accused has successfully proved his probable defence and rebutted the statutory presumption as well as the facts and circumstances set out by the complainant. Since, the accused has successfully proved his probable defence and created contra circumstances as well as doubtful movement in happening of the alleged loan transaction, it is reverse burden created on the Judgment 29 C.C.No.166/2016 complainant to prove the guilt of the accused beyond the reasonable doubt.
It is well worthy to cite 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 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".
Added to that, in a 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 Judgment 30 C.C.No.166/2016 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. As per the said dictums coupled with the rider of under Sections 118 and 139 of Negotiable Instruments Act, it was the reverse burden on the complainant to prove his case beyond the reasonable doubt.
31. On going through the pleading of the complainant, he stated that, since past several years complainant and accused known to each other, in that friendship for meet out the needs and necessities during February, 2013 accused sought for loan of Rs.5 lakhs and accordingly, he gave during March, 2013 and accused agreed to repay the same within one year and towards its repayment got issued Ex.P1 - cheque. On meticulous perusal of the said testimony it discloses, though complainant has contended, there were friendship between complainant and accused. In his cross-examination he deposed that, accused and Judgment 31 C.C.No.166/2016 complainant were worked as goods agents in Railway Station. He also stated that, the accused was not his childhood friend, but stated, he knew him since his 10 years. Mere knowing of each other is not enough to taken the contention that, both are friendship. For having friendship there should be some nexus, but to make believe the friendship between complainant and accused, there is no satisfactory explanation is forth coming from the complainant. In view of the accused has proved his probable defence, it leads for draw the inference that, the complainant and accused were not the friends and mere because of complainant got possessed the Ex.P1 - cheque through his father - PW.2 for the defence stated by the accused, complainant ventured for filing this case, but failed to demonstrate the friendship between them.
32. Though complaint has pleaded, during February, 2013 the accused approached him for loan for meet out his needs and necessities. If at all, the accused was need the said huge amount of Rs.5 lakhs in the year 2013, definitely it was strong reason to the accused to approach the complainant, but complainant has not stated, what was the said compelling circumstances to the accused to approach him, in that regard also no satisfactory pleading nor explanation were given. If at all, any request made by accused during the month of February, 2013, where, accused Judgment 32 C.C.No.166/2016 came and on which date, at what time he made request is require to be plead and prove, but the same is seriously lapse. At least, the complainant needs to plead and prove, how he mobilized the huge amount of Rs.5 lakhs on which date, where, at what time, on which security he gave the said huge amount by way of cash to the accused. In that connection no such pleading nor necessary explanation was forth coming in the evidence of PW.1.
33. During his cross-examination, the PW.1 has deposed that:
ದ , ಯವ ದನತಕ ಸಲ "ಆರಕದಪ ಯವ ದನ ನನನಲ ಸಲ ಕದಳದಸ ನದಡದ ಮತಸತ ಆರಕದಪ ಯವ ಚಕನನ ಸ ನದಡದದ, ಎತಬ ಬಗಗ ನನಗ ಗಕತತತಸತ, ಆ ವಷಯವನಸ ನ , ನಕದಟದಸ, ದಕರಸ ಮತಸತ ಪಪಮಣ ಪತ ತದಲ ಕಣಸಲಲ ಎತದರ ಸರಯಲಲ. ಆ ವಷಯವನಸ ನ ಸಸಷಟವಗ ಬರದಸ ಕಣಸಲಸ ತಕತದರ ಇರಲಲಲ."
34. By deposing so, ವ he stated that, he knew that, when accused was asked for loan and exactly when he got issued the cheque. But as admitted by him, it was not by mentioned in the legal notice, complaint as well as his affidavit evidence. There is not mentioning about the particulars and more clearly he admitted to discloses, those facts he had no impediment. Not mentioning those particulars earlier is serious lacks on the part of complainant. In the further cross-examination PW.1 has deposed Judgment 33 C.C.No.166/2016 that, during the 1st week of February, 2013, the accused requested for loan of Rs.5 lakhs and after one month i.e., during 2 nd Week of March very particularly on 13.03.2013 he gave money to the accused. If it was the particulars narrated by the complainant were to be true, definitely, it should be the relevant date needs to made mentioned in legal notice, complaint and affidavit evidence, but as he admitted, those particulars were not discloses, earlier in the present case. By deposing so, the complainant try to develop his case against his own pleading, which is one of the strong circumstances to disbelieve the version of PW.1.
35. That apart, the PW.1 in his further cross-examination has deposed how he mobilized the fund. In his cross-examination he deposed, for the purpose of business of the complainant his father gave Rs.3 lakhs, that apart, Rs.2 lakhs the complainant had gathered the said amount and gave it to the accused. If at all, he mobilized fund of Rs.3 lakhs from his father and complainant had Rs.2 lakhs, definitely, in that connection document needs to be produce, but no document has been placed to establish that, the complainant had cash of Rs.2 lakhs with him and in his father gave Rs.3 lakhs. The PW.2 - father of the complainant was right person to disclose the truth as to he lent of Rs.3 lakhs to the complainant, but for the reasons better known to him, he ran away Judgment 34 C.C.No.166/2016 from the witness box and thereby, disprove the contention of PW.1, as to his father lent Rs.3 lakhs to the complainant. In order to show that, the accused had Rs.2 lakhs on the alleged date of lent it is him to explain, how he mobilized and the physical amount was handed over to the accused. In that regard, no satisfactory explanation is forth coming from the side of complainant. The PW.1 is also not denied in his cross-examination, as to Ex.D10.
36. Though the accused for complainant has addressed arguments by stating that, Ex.D10 cheque was created by the accused in the name of U.Jayavelu, though it was not issued to him. In that connection it needs to appreciate the evidence of PW.1. During the course of cross of PW.1, he deposed that:
"ನಡ-1 ದಕರನಲ, ಪಯರದ ದಖಲಸರಸವ ಪಸಆರ ನತರ7990/2014 ಬಗಗ ನಮಕದಸದ ಎತದರ ಸರ. ಸಕಗ ಚಕಸತಖನರ252591 ಹಚಡಎಫಸ ಬನತಕನಲ ಯಸ.ಜಯವದಲಸ ಹಸರನಲರಸವ ರಕರ10 ಲಕವನಸ ನ ನ ಆರಕದಪ ಚಕನನ ಸ, ನನನ ತತದಯತದ ಮಗಡ ದನತಕರ25.03.2015 ನಸ ರಸತ ಪದಲಸರಸ ಆರಕದಪಗ ಮರಳ ಕಕಡಸದದರಸ ಎತಬ ಸಲಹಗ, ಸಕ ಆ ಬಗಗ ಹಗಕ ಆ ಚಕನ ಬಗಗ ನನಗ ಗಕತತಲಲ ಎತದಸ ನಸಡಯಸತತರ.
ಆರಕದಪ ನನನ ತತದಗ ನದಡದ ಮತಸತ ನನಗ ನದಡದ 2 ಚಕಸ ಕ ಗಳಸ ಹಚಡಎಫಸ ಬನತಕಗ ಸತಬತಧಪಟಟದದ ಸ ಎತದರ ಸರ. ನನನ ತತದಗ ಮತಸತ ನನಗ ಮಚರ 2014 ರಲ ಚಕಕನಸ ನ ಕಕಟಟದರತದಸ ನಮಕದಸದರ ಎತಬ ಬಗಗ ಸಕ, ನನನ ತತದಗ ಚಕನನ ಸ ಕಕಟಟರಸವ ವಷಯ ನನಗ ಗಕತತಲಲ.
Judgment 35 C.C.No.166/2016 ನನನ ತತದಗ ನದಡದರತದಸ ತಳಸರಸವ ಚಕನ ಸತಖನ ನಪ-1 ಚಕನ ನತತರ ಚಕ ಎತದರ ಸರ. ಹಚಡಎಫಸ ಬನತಕಗ ನಪ-1 ದಕರನಸ ನ ಆರಕದಪ ನದಡದರ ಎತದರ ಸರ. ಮಗಡ ರಸತ ಯ ಪದಲಸ ಠಣಯತದ, ಪದಲಸರಸ ಕರ ಮಡದ ನತತರ, ನನಸ ಮತಸತ ನನನ ತತದ ಹಕದಗದವ.
ಆ ದನ ಕವತ ಎತಬ ಉಪ-ನರದಕಕರಸ, ಆರಕದಪಗ ರಕರ25,000/-
ನಮಮತದ ಕಕಡಸದದರಸ. ಸಕ ಸಸತರ ಮಸತದಸವರದಸ, ಆ ಪಪಕರಣವನಸ ನ ಆರಕದಪ ಹತದಕಕ ಪಡಯಲಸ ಜಬದರಸತ ನತದ ಆ ಮತತವನಸ ನ ಆರಕದಪಗ ಕಕಡಸದದರಸ ಎತದಸ ನಸಡಯಸತತರ."
37. The PW.1 has clearly admitted that, in the complaint lodged by the accused as per Ex.D1 it is mentioning about the filing of present PCR No.7990/2014. It also tendered the cheque at Ex.D10 to the PW.1, which stood in the name of father of complainant for the tune of Rs.10 lakhs mentioned the date:25.03.2015 and the said cheque was returned by the father of complainant to the accused n pursuance of accused lodged Ex.D1 complaint, but the PW.1 has not denied the same and deposed that, he does not know about the same. Therefore, the PW.1 has not denied the defence of accused raised from the point of Ex.D10 cheque. The PW.1 has admitted that, cheque produced at Ex.P1 as well as cheque at Ex.D10 pertaining to the accused drawn on same bank. The PW.1 has deposed that, the accused gave cheque to his father was not known to the Judgment 36 C.C.No.166/2016 complainant. He also clearly admitted that, Ex.P1 - cheque is subsequent cheque to Ex.D10 given to his father.
38. The PW.1 has categorically admitted that, lodged complaint at Ex.D1 by the accused in pursuance of the telephonic call made by Magadi Road Police, the PW.1 and his father went to the said Police Station. He also categorically admitted, on the same day, the Sub-Inspector by name Smt.Kavitha through the complainant and his father was directed to gave Rs.25,000/- and accordingly, paid to the accused is also been admitted. The PW.1 volunteers that, in order to taken back the present case by forcefully made to pay the said money to the accused. The said testimony does not convey any meaning. The complainant if at all, filed the case against the accused, he gave Rs.25,000/- to the accused does not arise, then the accused if at all any liability was him, it is him to pay and on force the complainant and his father gave Rs.25,000/- to the accused does not arise. From the say of evidence of PW.1, it creates strong doubtful circumstances as to misuse of cheque by the father of complainant. Though PW.1 has appears, he not denied the allegation made against his father by the accused.
39. On meticulous perusal of the Ex.P1 - cheque it is bearing No.222156 dated:07.03.2014 for sum of Rs.5 lakhs. On Judgment 37 C.C.No.166/2016 meticulous perusal of the Ex.P1 - cheque except the admitted signature of the accused other writings, name, amount and date are made in different hand writing and ink. Therefore, it prima- facie discloses to the bare eyes that, one person cannot execute and issued the said cheque it revealed the participation of two other persons, therefore, it is the complainant needs to explain other than he, who got filled the said cheque, not satisfactorily explanation is forth coming from the mouth of PW.1.
40. It is equally important to focus on Ex.D10 cheque bearing No.252159 dated:25.03.2014 for sum of Rs.10 lakhs payable in the name of U.Jayavelu. Ex.D10 is the subsequent cheque. If at all, complainant lent loan to the accused as alleged in the present complaint, during March, 2013, once again what was the necessity to the accused to issue the Ex.D10 cheque dated:25.03.2014 in favour of his father, creates doubtful circumstances, as to misuse of Negotiable Instruments.
41. The Ex.D10 also revealed that, the signature and other hand writing are altogether different with ink. Therefore, it prima- facie discloses, the complainant and his father-PW.2 made the accused as scapegoat on account of he handed over the sighed blank cheques to the complainant. Therefore, it is the strong Judgment 38 C.C.No.166/2016 doubtful circumstances made out by the accused that, whatever the blank cheques taken by PW.2 in connection to the pursued to obtain compensation from Metro Railway Department, for the reasons better known to PW.2, he got misused those cheques through various persons including complainant. Therefore, the very act of the complainant has to be condemned. Those serious allegations made against PW.1 and PW.2, the PW.1 has avoided to enter into court of law for tender cross-examination. Though PW.1 has projected this case, he utterly failed to demonstrate the same. First of all, the complainant has utterly failed to prove that, accused is his friend and on the allegations and averments made in the complaint, he utterly failed to plead and prove the alleged request made by the accused sought for loan of Rs.5 lakhs with particular purpose.
42. The aspect to be taken note of is that, in the case of Shiva Murthy V/s Amrutharaj, reported in ILR 2008 Karnataka 4629, has pleased to observed that, no prudent man would lend substantial amount of Rs.75,000/- without charging interest and the provisions of Section 269 SS of the Income Tax Act had not been followed and therefore, the court, in the instant case, declined to accept the case of the complainant with regard to the loan transaction. The said analogy or principle is also reiterated in the Judgment 39 C.C.No.166/2016 judgment pertaining to the case of Veerayya V/s G.K.Madivalar by the Hon'ble High Court of Karnataka, dated:30.11.2011. In the presence case on hand, the complainant claiming to be lent of Rs.5,00,000/- to the accused. But, to establish, to pay the said huge amount of loan, he not secured any documents nor claiming paid for interest. Therefore, it creates doubt as to the claim put forth by the complainant.
43. That apart, he also utterly failed to prove that, he had financial capacity to pay huge cash of Rs.5 lakhs to the accused and accordingly, failed to prove the same. The complainant has pleaded, accused gave the cheque on the date of receipt of loan and undertakes to repay the same within one year. If at all, any loan transaction were took place as alleged definitely, necessary security document could have taken by the complainant, but the same has not done by him. No prudent man will not allow other to misuse the hard earned cash, therefore, since the complainant has not lent loan to the accused he not secured any security document to establish passing of loan amount to the hands of accused. No prudent man without any profit of interest for the period of one year would not lent loan. In order to collect the loan of interest the date of issuance is must, the same is lapse. When complainant failed to demonstrate the alleged lent of loan, Judgment 40 C.C.No.166/2016 question of accused got issued the cheque in favour of him for payment of Rs.5 lakhs does not arise. When complainant has failed to demonstrate, he had cash of Rs.5 lakhs enable him to pay loan to accused, the question of pass the said amount in the hands of accused does not arise. When the complainant failed to prove the passing of consideration to the hands of accused, the question of considering the payment of loan as alleged by the complainant does not arise. When complainant has failed to demonstrate to possess the request cash as on the alleged date of lent, question of lent to the accused does not arise. Accordingly, without passing any consideration question of accused got issued or executed the Ex.P1 - cheque in favour of the complainant does not arise. Because of probable defence set out by the accused, the PW.2 got possessed the Ex.P1 sighed blank cheque of the accused coupled with other cheques and subsequently for the reasons better known to PW.2 in collusion with complainant and other persons, got misused the cheques of the accused. Accordingly, the present case is emerged without any base with bald contention. The very fatal act of the complainant is condemned, as to misuse of the Negotiable Instruments. Hence, the accused is entitled for benefit of doubt for acquittal.
Judgment 41 C.C.No.166/2016
44. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
In the decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act - Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
45. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent Judgment 42 C.C.No.166/2016 evidence as to the lending of loan of Rs.5 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
46. 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.5 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 Judgment 43 C.C.No.166/2016 statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.5 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".
47. 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.5 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.5 lakhs does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge Judgment 44 C.C.No.166/2016 of liability of Rs.5 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
48. 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 Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
49. 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, Judgment 45 C.C.No.166/2016 accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
50. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the 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.5 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.
51. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 46 C.C.No.166/2016 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 1st day of December
- 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : J.Karunakaran PW.2 : U.Jayavelu
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
List of Witnesses examined on behalf of the defence:
DW.1 : C.Raja List of Exhibits marked on behalf of defence:
Ex.D1 : Copy of complaint dated:25.04.2015 Ex.D2 : True copy of legal notice dtd:19.03.2015 Ex.D3 : True copy of postal cover address Ex.D4 : True copy of legal notice dtd:20.04.2015 Judgment 47 C.C.No.166/2016 Ex.D5 : True copy of postal cover address Ex.P6 : True copy of house allotment letter Ex.D7 : True copy of General Power of Attorney Exs.D8 & D9 : Notarized copies of affidavits Ex.D10 : Original cheque bearing No.252159 Ex.D11 : True copy of query details on case number Ex.D12 : Copy of complaint XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 48 C.C.No.166/2016
01.12.2020.
Comp -
Accd -
For Judgment
Case called out. The complainant
and accused are remained absent. Both
side counsels are also absent. The proxy
counsel for accused is present.
The advocate for accused
yesterday i.e., on 30.11.2020 has filed the board application under Section 309 of Cr.P.C., seeking for advance the case on the regular hearing date for file the application under Section 311 of Cr.P.C. to re-open the stage for arguments from the side of accused.
Along with the board application, the advocate for accused has filed application under Section 311 of Cr.P.C., seeking for re-open the stage to provide an opportunity to file written arguments during the last week of December, i.e., 25/26-12.2020. In the application the advocate for the accused has also Judgment 49 C.C.No.166/2016 contended that, on account of Covid-19 pandemic, he did not present before the court, now solely pandemic is getting low, he is ready to file written argument, if another chance provide during last week of December, 2020 as stated above.
It is difficult to the advocate for accused to file written argument, since this is the old matter and needs to give more time to study the case and in prepare the written argument within 10 days. Hence, prayed for seeking 10 days more time to file the written argument.
On going through the order sheet it discloses, it is the case of the year 2016, this court has given sufficient opportunities to the advocate for accused, either to address oral arguments physically or through video conference nor file written arguments. Even as per order dated:13.11.2020 10 days time were given to him to submit written argument, till then not filed. Even the instant application not accompanied with written arguments. For prepare and file written argument, he sought time for another 10 days or specifically on 25/26-12-2020. When the judgment is prepared and yet to be pronounce, question of considering the instant application does not arise. No grounds made out in the instant application to consider at this stage.
Judgment 50 C.C.No.166/2016 Hence, the application filed by the advocate for accused under Section 311 of Cr.P.C. is hereby dismissed.
Since the stage is already set for pronounce judgment, this court proceed to pronounce the judgment.
As the complainant and accused are remained absent, by virtue of Section 353(6) of Cr.P.C. this court proceed to pronounce the judgment in the open court vide separate order.
***** ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence 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.