Bangalore District Court
Sri. L.Gaviranga vs Sri. P.V.Sathish on 17 November, 2018
1 C.C.No.23139/2015 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 17thday of November, 2018
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.23139/2015
Complainant : Sri. L.Gaviranga,
S/o. R.Lakkanna,
Major in age,
No.101/A, 14th A Cross,
Weavers Street,
Sarakki Gate,
J.P.Nagar 1st Phase,
Bengaluru - 560 078.
(Rep.by Sri.K.K. Surendra., Adv.,)
- Vs -
Accused : Sri. P.V.Sathish,
S/o. P.S.Venkatesh,
Major in age,
No.233/12, 6th Cross,
9th Main, 2nd Block,
Jayanagar,
Bengaluru.
And also at
No.133, 3rd Cross,
9th Main, 2nd Block,
Jayanagar,
Bengaluru.
(Rep. by Smt. V.Manjula Bai and
others., Advs.,)
2 C.C.No.23139/2015 J
Case instituted : 7.8.2015
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 17.11.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused and he is known to each other since several years. Hence the Accused had approached him and requested for a hand loan of Rs.11 Lakhs in the 1st week of November 2014 in order to meet his financial, domestic and business commitments. Heeding to the request of the Accused, he arranged the above said amount with the help of his friends, relatives etc., and lent a hand loan of Rs.11 Lakhs to the Accused by way of cash in the 2nd week of November 2014.
3. The Complainant has submitted that, the Accused had assured to repay the said amount within 6 months from the date of borrowing. However, after the expiry of 6 months, when he approached the Accused and requested 3 C.C.No.23139/2015 J for the repayment of the loan amount, in the month of May 2015, towards the discharge of his liability, the Accused issued the following two cheques in his favour:-
a) Cheque bearing No.000610 dated:- 15.5.2015 for a sum of Rs.6,00,000/=; and
b) Cheque bearing No.000611 dated:- 20.5.2015 for a sum of Rs.5 Lakhs, both drawn on the Karur Vysya Bank Ltd, Bangalore -
560 002, with an assurance that, the said cheques would be duly honoured on their presentation on the due dates.
4. The Complainant has submitted that, as per the instructions of the Accused, when he presented the said cheques for encashment, through his banker, the same came to be returned dishonoured as "Funds Insufficient"
on 12.6.2015. When he informed the said fact to the Accused, he requested him to re-present the said cheques for encashment, again the said cheques returned dishonoured as "Funds Insufficient" on 1.7.2015. When he informed the said fact to the Accused, he did not respond to the same.
5. Thereafter left with no other alternative, he got issued a legal notice to the Accused through RPAD on 15.7.2015 calling upon him to pay the cheques amount to 4 C.C.No.23139/2015 J him within 15 days from the date of the receipt of the said legal notice and despite the service of the same, the Accused has neither replied nor has he paid the cheques amount to him. Hence the present complaint.
6. The Complainant submits that, the dishonour of the cheques by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that he be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
7. The Complainant has led his pre-summoning evidence by examining him as CW.1 and he has filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the complaint averments.
8. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
9. The Accused has appeared before the court and he has been enlarged on bail. The substance of the accusation has been read over to him, to which he has pleaded not guilty and has stated that he has the defence to make.
5 C.C.No.23139/2015 J10. In his post-summoning evidence Complainant has examined as P.W.1 and has filed his affidavit, in which he has reiterated the complaint averments.
11. In support of his oral evidence, P.W.1 has produced and relied upon the documentary evidence at Ex.P1 to P12, which is, as follows:-
Ex.P1 and P.2 are the Original Cheques dated 20.5.2015 and 15.5.2015 respectively, in which, the signatures identified by P.W.1 as those of the Accused are as per Ex.P.1(a) and P.2(a) respectively, the two Bank Memos as per Ex.P.3 and P.4 respectively, the office copy of the Legal Notice as per Ex.P.5, the two Postal Receipts as per Ex.P.6 and P.7 respectively, the two Track Results as per Ex.P.8 and P.9 respectively, the I.T. Returns for the Assessment Year 2012-13 to 2014-15 as per Ex.P.10 to P.12 respectively,
12. P.W.1 has been cross-examined by the learned Defence Counsel.
13. It is seen that, in support of the case of the Complainant, two witnesses by name Sri.Nageshwar Rao and Sri.M.Kumar are examined as PW.2 and PW.3 respectively.
6 C.C.No.23139/2015 JFirstly, PW.2 has deposed as follows:-
i) That, the Accused and the Complainant are common friends and that the former had approached the Complainant and sought for a hand loan and at that time, the Complainant had contacted him and informed him about the said fact and the Complainant asked him to pay Rs.4 Lakhs so as to help the Accused financially;
ii) That the Complainant had also told that, he had received Rs.3,50,000/= from PW.3 and asked him to adjust the remaining amount and to pay the same to the Accused;
iii) That he paid Rs.4 Lakhs to the Complainant in the 2nd week of November 2014, which was saved from out of his business savings and the Complainant had received Rs.3.5 Lakhs from PW.3 and adjusted the remaining amount and thereafter lent a total sum of Rs.11 Lakhs to the Accused by way of cash in his presence and in the presence of PW.3;
iv) That as such, he is fully aware of the financial transaction which has taken place between the Complainant and the Accused.
.
7 C.C.No.23139/2015 JLikewise PW.3 has deposed as follows:-
i) That, the Accused and the Complainant are common friends and that the former had approached the Complainant and sought for a hand loan and at that time, the Complainant had contacted him and informed him about the said fact and the Complainant asked him to pay Rs.4 Lakhs so as to help the Accused financially;
ii) That the Complainant had also told that, he had received Rs.4,00,000/= from P.W.2 and asked him to adjust the remaining amount and to pay the same to the Accused;
iii) That he paid Rs.4,00,000/= to the Complainant in the 2nd week of November 2014, which was saved from out of his business savings and the Complainant had received Rs.4 Lakhs from PW.2 and adjusted the remaining amount and thereafter lent a total sum of Rs.11 Lakhs to the Accused by way of cash in his presence and in the presence of PW.2;8 C.C.No.23139/2015 J
iv) That as such, he is fully aware of the financial transaction which has taken place between the Complainant and the Accused.
14. P.W.2 and P.W.3 have been cross-examined by the learned Defence Counsel.
15. The statement of the Accused as required under Sec. 313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence found against him. Though he has denied the incriminating evidence found against him, he has not lead his rebuttal evidence but has filed his statement of defence u/Sec. 313 (5) of the Cr.P.C.
16. The defence of the Accused in the said statement is that, he knew the Complainant since 10 years and that in the year 2012, he was doing Sari business and he had purchased the saris from the Complainant on two occasions in the month of May 2012, worth of Rs.20,000/=. That towards the payment of the said amount of Rs.20,000/= each to the Complainant on two different dates, in the month of May 2012, he had issued the subject cheques to him only for the purpose of security as signed blank cheques. Therefore except his signatures on the subject cheques, the rest of the contents in them were not in his hand writing.
9 C.C.No.23139/2015 J17. Further according to the Accused, the Complainant is well aware of the fact that, the former is capable of writing in his own hand writing and in such circumstance, it is clear that, the contents of the subject cheques are not in his hand writing.
18. Further, according to the Accused, the notice issued by the Complainant is not served upon him and that the subsequent numbered cheques pertaining to the subject cheques of the same series were acknowledged in the year 2012 and he has cleared the amount due to the Complainant towards the sari business in the year 2012 itself. Though the Complainant had assured him that, he was going to hand over the cheques immediately after tracing, by misusing the signed blank cheques, the Complainant has filed this false case against them, though he has not borrowed any such hand loan from him.
19. In support of his defence, the Accused has produced his Bank Statement in support of his defence version. Hence he has prayed to dismiss the complaint.
20. I have heard the arguments of the learned counsels representing both the sides and perused the record carefully.
10 C.C.No.23139/2015 J21. In support of his arguments, the learned counsel for the Complainant has relied upon the following decisions:-
1. In ICDS Ltd., Vs., Beena Shabeer and another., reported in (2002) 6 SCC 426 ;
2. In Smt.Umaswamy Vs., K.N.Ramanath, reported in (2006) 6 KANT. LJ 217;
3. In S.T.P.Ltd., Vs., Usha Paints and Decorators, and A.V.Ganesh, reported in LAWS (KAR) 2006 3 (42);
4. In Shalini Enterprises & Anr., Vs., India Bulls Financial Services Ltd., reported in 2014(1) DCR 204;
5. In T.Vasantha Kumar Vs., Vijayakumari., reported in (2015) 8 SCC 378;
6. In Jaspal Singh Vs., The State (Govt. of NCT of Delhi) & Anr., in Crl.Rev.P.160/2016 & 162/2016 and Crl.M.B.1804 & 1805/2016; decided by the Hon'ble Delhi High Court);
7. In Sampelly Satyanarayana Rao Vs., Indian Renewable Energy Development Agency Ltd., reported in (2016) 10 SCC 458;
8. In Arjun Vs., E.Shekar reported in LAWS (KAR) 2017 (3) 78;11 C.C.No.23139/2015 J
9. In T.P.Murugan (Dead) Thr. Lrs., Vs., Bojan in Crl.Appeal No.950-951/2018 dated:- 31.7.2018 decided by the Hon'ble Supreme Court of India;
10. In Rangappa Vs., Sri.Mohan., reported in 2010 (1) DCR 706;
11. In Sajeev.P.R Vs., Thriveni Credit Corporation Thoudupuzha & anr., reported in 2007 Crl.L.J (NOC) 520 (KER);
12. In Sripad Vs., Ramadas M.Shet., reported in LAWS (KAR) 2014 628;
13. In Hiten P. Dalal Vs., Bratindranath Banerjee reported in (2001) 6 SCC 16;
14. In Kishan Rao Vs., Shankargouda., in Crl.Appeal No.803/2018 decided by the Hon'ble Supreme Court of Inida;
15. In Lillykutty Vs., K.Lawrance in LAWS (KER) 2003 (8) 48;
16. In Ravi Chopra Vs., State, reported in LAWS (DLH) 2008 (3) 54;
17. In Jaspal Singh Vs., The State of NCT of Delhi) & Another., in Crl.Rev. P.160/2016 & 162/2016 and Crl.M.B.1804/16 & 1805/2016, decided by the Hon'ble High Court of Delhi;12 C.C.No.23139/2015 J
18. In K.Bhaskaran Vs., Sankaran Vaidhyan Balan and another., reported in (1999) 7 SCC 510
19. In C.C.Alavi Haji Vs., Palapetty Muhammed and Anr., reported in 2007 AIR SCW 3578;
20. In Ajeet Seeds Limited Vs., K.Gopala Krishnaiah reported in (2014) 12 SCC 685;
21. In Mr.Mohammed Iqbal Vs., Mr. Mohammed Zahoor, reported in ILR 2007 KAR 3614;
22. In Mr. Krishna P.Morajkar Vs., Mr.Joe Ferrao and another, in Crl.Appeal No.6/2012 decided by the Hon'ble High Court of Bombay;
23. In Mr. Sunil Thukral Vs. Mr. Tolu @ Tulo Puno Velip and another, in Crl.Appeal No.45/2011, decided by the Hon'ble High Court of Bombay at Goa; (HC)
24. In C.N.Dinesha Vs., C.G.Mallika, reported in LAWS (KAR) 2017 (4) 57;
25. In Shri Shyam Sunder Vs., Sohan Singh @ Shoban Singh, in RFA No.189/2015, decided by the Hon'ble High Court of Delhi;
26. In Mainuddin Abdul Sattar Shaikh Vs., Vijay D. Salvi, reported in (2015) 9 SCC 622;
27. In H. Pukhraj Vs., D. Parasmal., reported in (2015) 17 SCC 368;13 C.C.No.23139/2015 J
28. In Hiten P. Dalal Vs., Bratindranath banerjee., reported in 2001 Crl.L.J. 4647;
29. In Rajesh Agarwal Vs., State, in LAWS (DLH) 2010 7 404, decided by the Hon'ble High Court of Delhi.
22. On the other hand, the learned Defence Counsel has relied upon the following decisions:-
1. In K.Subramani Vs., K.Damodara Naidu, reported in 2014(4) KCCR 3661 (SC);
2. In Mr.B.Shivaram, Vs., Mr.M.V.Venkatesh, reported in 2015(1) DCR 642;
3. In Amzad Pasha Vs., H.N.Lakshmana., reported in 2011 Cri.L.J.552;
4. In Rajendraprasad Gangabishen Porwal Vs., Santoshkumar Parasmal Saklecha and another., reported in 2008 Cri.L.J.2955;
5. In Shiva Murthy Vs., Amruthraj., reported in ILR 2008 KAR 4629;
6. In Bhausaheb Shravan Kumawat Vs., Santosh Madhavrao Vyavhare and another., reported in 2014 (3) DCR 767;
7. In Rajeev Vs., State of Kerala., reported in LAW (Ker) 2012-1-148;
8. In John.K.John Vs., Tom Varghese and another, reported in (2007) 12 SCC 714;14 C.C.No.23139/2015 J
9. In Vijaya Kundanlal Sharma Vs., Satyawan Bhikaji Jadhav., reported in LAWS (Bom) 2013 (7) 295;
10. In Prabhakar Rauji Shet Vs., Shrikanti M. Arolkar, reported in LAWS (BOM) 2009-2-163;
11. In B.Girish Vs., Ramaiah., reported in 2011 (3) AIR Kar R 434;
12. In Veerayya Vs., G.K. Madivalar., reported in LAWS (KAR) 2011-11-35,
13. In Sanjay Mishra Vs., Ms.Kanishka Kapoor @ Nikki and another., reported in 2009 Cri.L.J. 3777;
14. In Vijaya Kundanlal Sharma Vs., Satyawan Bhikaji Jadhav and another., reported in 2014 (3) DCR 760;
15. In Surjit Singh Vs., Amarpal Singh Tiwana., reported in 2014 (3) DCR 488;
16. In Mr.B.Shivaram Vs., Mr.M.V.Venkatesh., reported in 2015 (1) DCR 642;
17. In Shobha Chouhan Vs., Gopichand Shatri., reported in 2016 (3) DCR 568;
18. In Kamala.S Vs., Vidhyadharan.M.J. and another., reported in (2007) 5 SCC 264;
19. In P.Satyanarayana Vs., C.H.Jayathertha., reported in 2009(2) KCCR 1273;
20. In S.K.Sales Vs., Jay Ambe Industries., reported in reported in LAWS (BOM) 2008 7 173;15 C.C.No.23139/2015 J
21. In C.Antony Vs., K.G.Raghavan Nair., reported in AIR 2003 SC 182;
22. In H.Manjunath Vs., Sri.A.M.Basavaraju., reported in ILR 2014 Kar 6572;
23. In Krishna Janardhan Bhat Vs., Dattatraya G. Hegde, reported in 2008 AIR SCW 738;
24. In M.Senguttuvan Vs., Mahadevaswamy., reported in ILR 2007 KAR 2709;
25. In M/s. K.M.Enterprises Vs., M/s. Garware Synthetics Ltd., & Ors., reported in 2015 (1) DCR 267;
26. In Abdul Nazar Vs., Dillep Kumar, reported in 2015(1) DCR 33;
27. In John K. Abraham Vs., Simon.C.Abraham and another., reported in (2014) 2 SCC 236;
28. In B.P.Venkatesulu Vs., K.P.Mani Nayar, reported in 2001 Cri.L.J.745;
29. In Vijay Vs.Laxman and another, reported in 2013 (3) SCC 86;
30. In Prabhkar Murthy Vs., S.G.Shankaraiah., reported in LAWS (KAR)2015-12-84, decided by Hon'ble High court of Karnataka;
31. In B.Indramma Vs., Sri.Eshwar., reported in ILR 2009 KAR 2331;
32. In Santhi.C Vs. Mary Sherly in LAWS (KER) 2011-
6-19 decided by Hon'ble High Court of Kerala;
16 C.C.No.23139/2015 J33. In M.S.Narayana Menon Alias Mani Vs. State of Kerala and another., reported in (2006) 6 SCC 39.
23. I have considered the submissions and perused the record carefully.
24. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards the payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
17 C.C.No.23139/2015 J25. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
26. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
27. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
28. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
18 C.C.No.23139/2015 J29. It is a well settled position of law that, the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
30. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
19 C.C.No.23139/2015 J31. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
32. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
33. Admittedly, there is no dispute with regard to the acquaintance between the parties, as well as with regard to the fact that, the cheque in dispute belongs to the Accused with his signature on it and that he has issued the same in favour of the Complainant.
34. However, there is a serious dispute with regard to the existence of the alleged loan transaction between the parties as claimed by the Complainant in the present case. In such circumstance, the onus of proving the case beyond reasonable doubt is upon the Complainant.
35. It is pertinent to note that, there is a specific averment made by the Complainant in the complaint that, the Accused had approached him in the first week of November 2014, requesting him for a hand loan of Rs.11 20 C.C.No.23139/2015 J Lakhs, in order to meet his financial, domestic and business commitments and heeding to his request, he arranged the above said amount, with the help of his friends and relatives and lent Rs.11 Lakhs to him by way of cash in November 2014.
36. It is interesting to note that, though it is pleaded in the complaint that, the Complainant arranged the amount of Rs.11 Lakhs from his relatives and friends, there is no specific pleading about the persons from whom, he had allegedly availed the financial assistance so as to help the Accused financially. Likewise, even in the affidavit filed by the Complainant, both during the stage of his sworn statement as well as his chief-examination, there is no specific mention about the names of the persons, from whom the Complainant had taken financial assistance so as to help the Accused. However, it is for the first time, in his cross-examination that, the Complainant has come up with a claim that, out of the amount of Rs.11 Lakhs, he had arranged Rs.3.5 Lakhs from his friend Mr.Kumar/P.W.3 and Rs.4 Lakhs from his friend Nageshwar Rao/P.W.2.
37. Moreover, the Complainant has also deposed in his cross-examination that, he had taken the Accused directly to the houses of his friends i.e. P.W.2 and P.W.3 and got lent the respective amounts from them to him, one 21 C.C.No.23139/2015 J or two days prior to his alleged lending of the loan amount to him in the month of November 2014. Therefore as per the version of the Complainant, he could arrange Rs.7.5 Lakhs with the financial assistance from P.W.2 and PW.3, in respect of which, admittedly, there is no scrap of paper or any documentary proof, so as to believe the said version.
38. No doubt, to corroborate his claim in this regard, the Complainant has examined the aforesaid witnesses as PW.2 and PW.3 respectively, who have filed their respective affidavits, in which, they have supported the claim of the Complainant.
39. In this regard, during the course of his arguments, the learned Defence Counsel has pointed out to the insertion of the phrase "second week of November 2014" and has argued that, as the said witnesses are the cooked up witnesses by the Complainant, the very drafting of their affidavits clearly indicate the fact that, they are brought before the court only for the purpose of giving false evidence in support of the case of the Complainant.
40. It is also argued that, the insertion of the phrase "in 2nd week of November 2014" in the respective affidavits of PW.2 and PW.3 cannot be considered to be a typographical omission or a mistake due to oversight, while 22 C.C.No.23139/2015 J preparing the said affidavits, since such mistake might have happened in only while preparing one affidavit, but not while preparing both the affidavits.
41. However, the evidence of the witnesses P.W.2 and P.W.3 cannot be doubted by this court, only because of the fact that, the phrase "in 2nd week of November 2014", has been subsequently inserted manually and in order to consider the genuineness of their evidence, it is necessary for this court to appreciate the answers elicited from them in their cross-examination by the learned Defence Counsel.
42. It is interesting to note that, though according to the Complainant, he got lent the respective amounts of Rs.4 and 3.5 Lakhs respectively to the Accused directly by taking him to the respective houses of P.W.2 and P.W.3, both these witnesses have contradicted in this regard by deposing in their cross-examinations that, they paid the amounts to the Complainant, who in turn paid the said amount to the Accused. However, both these witnesses have admitted the suggestions that, there is no document executed between the Complainant and them to prove their alleged payment of the respective amounts to the Complainant, for the purpose of lending the same to the Accused.
23 C.C.No.23139/2015 J43. Moreover, P.W.2 has specifically deposed that, he had withdrawn Rs.4 Lakhs from his account about 15 days prior to his alleged payment of the said amount to the Complainant and he had no impediment to produce his Bank Pass Book before this court. He has also deposed that, he had no impediment to state the date of the withdrawal of the amount by him from his bank account while preparing his affidavit.
44. Therefore, when admittedly there is no documentary proof in respect of the alleged financial assistance by P.W.2 and P.W.3 in favour of the Complainant, some iota of evidence on their part so as to corroborate their version was expected to believe their evidence.
45. Moreover, when P.W.2 had clearly deposed that, he has his Bank Pass Book, which he could have easily produced before the court, but he has not produced the same, this would also result in drawing an adverse inference against him u/Sec. 114(g) of the Evidence Act.
46. Moreover, the witnesses P.W.2 and P.W.3 have deposed that, they have not seen the Complainant allegedly lending Rs.11 Lakhs to the Accused. In such circumstance, when the entire case of the Complainant is 24 C.C.No.23139/2015 J seriously denied by the Accused, the examination of the witnesses/P.W.2 and P.W.3, so as to corroborate his case by the Complainant, amounts an improvement in his case and as such this would also create a doubt in the mind of this court about the genuineness in the claim of the Complainant.
47. It is further pertinent to note that, though P.W.2 and P.W.3 have deposed with regard to their source of funds, so as to have allegedly paid the respective amounts to the Complainant, except their self-asserting testimony in this regard, neither of them has produced any documentary proof to substantiate his claim with regard to his source of funds with him as on the date of his alleged payment of the amount to the Complainant. Therefore it cannot be believed that, even if P.W.2 and P.W.3 possessed the respective amounts with them, they have paid any such amount to the Complainant, who in turn, claims to have lent the said amount to the Accused.
48. Moreover, it is also elicited from P.W.2 that, he does not know the purpose for which, the Accused had borrowed the loan of Rs.11 Lakhs from the Complainant. In such circumstance, when P.W.2 and P.W.3 claim to have advanced a huge sum of Rs.7.5 Lakhs to the Complainant, so as to lend the same to the Accused, 25 C.C.No.23139/2015 J without knowing the purpose for which, the Accused had allegedly sought for such loan amount from the Complainant, even on this ground, the case of the Complainant is liable to be doubted by this court.
49. Moreover, according to the Complainant, after having adjusted Rs.4 Lakhs and Rs.3.5 Lakhs from P.W.2 and P.W.3 respectively, he arranged the balance of Rs.3.5 Lakhs by having sold his gold jewelry. Though the Complainant claims that, he has not retained the documents in this regard, but claims to have shown them to the Accused, till date, there is absolutely no documentary proof led by the Complainant, in order to show that, he had sold his gold jewelry and lent the loan amount to the Accused, from out of the said sale proceeds of his gold jewelry.
50. However, it is not the case of the Complainant that, he has lent a huge loan of Rs.11 Lakhs to the Accused by charging any interest. In such circumstance, the Complainant is expected to explain to the court, as to, what was the necessity for him to borrow the loans from others and sell his own gold jewelry, only for the purpose of helping the Accused financially, when he himself had no source of funds for his personal purposes. Interestingly, there is no explanation offered by the Complainant in this 26 C.C.No.23139/2015 J regard. Therefore whatever is the closeness between the parties, the claim of the Complainant that, he sold his gold jewelry, so as to help the Accused and that too without charging any interest from him is a highly doubtful circumstance in his case.
51. Moreover, in the cross-examination of the Complainant, it is elicited from him that, the Accused is not his relative and that he has not pleaded about the charging of any interest from him, in respect of the alleged loan and it is also elicited from him that, except the cheque, he has no other document to prove that, he has lent Rs.11 Lakhs to the Accused. These circumstances elicited from the Complainant would also create a serious doubt in the mind of this court about his case.
52. It is interesting to note that, the Complainant has also deposed that, he has not shown the name of the Accused in his I.T.Returns, concerning the Assessment year 2015-16. Therefore if the claim of the Complainant about his alleged lending of Rs.11 Lakhs to the Accused was really true, then nothing prevented him from disclosing about the said transaction in his I.T. Returns. Therefore the omission on the part of the Complainant in this regard also creates doubt in his case.
27 C.C.No.23139/2015 J53. It could be seen that, the learned Defence Counsel has also successfully elicited from the Complainant that, he has purchased a car in the month of August 2014 by availing a loan of Rs.5 Lakhs and that, he has also availed the loan for the purpose of the construction of the 2nd floor of the building January 2015.
54. Therefore the admissions elicited from the Complainant to the effect that, as on the date of the alleged loan transaction, he himself had the liabilities in the form of loans, then the obvious question that arises is, as to, what was the necessity for him to borrow loans from others and sell his gold and advance interest free loan to the Accused. Though there is no answer to the aforesaid questions by the Complainant, the natural human conduct would go to show that, no person of ordinary prudence would venture to do such act. Therefore the case of the Complainant is liable to be doubted even on the aforesaid grounds.
55. It is further pertinent to note that, with regard to the contents of the cheques in dispute, the Complainant has claimed that, the Accused did not fill up the contents of the subject cheques and that they were filled up by the employees of the Accused in his shop. However, it is an admitted fact that, the Accused is an educated person, who 28 C.C.No.23139/2015 J can read and write in English language and in such circumstance, there was no necessity for the Accused to entrust his work of filling up the contents of the subject cheques to another. In such circumstance, Sec.20 of the N.I.Act cannot come to the rescue of the Complainant, taking into consideration the fact of the totality of the doubtful circumstances pointed out in the case of the Complainant.
56. Moreover, when it is the defence of the Accused that, the cheques in dispute are in the possession of the Complainant since May 2012 and in this regard the learned counsel for the Complainant has argued that, the Accused has failed to explain, as to, why his cheques have been in the possession of the Complainant since 2012.
57. However, it is the specific defence of the Accused that, the Complainant is a weaver by profession and that that the latter used to supply the saris to him and in respect of such two transactions during May 2012, the cheques in dispute were collected by him from the Accused only for the purpose of security, in respect of the purchase of the saris worth Rs.20,000/= on each occasion on credit basis. Therefore it is in the background of the said transaction that the Accused claims that, the cheques in dispute were in the possession of the Complainant since 29 C.C.No.23139/2015 J May 2012. Though the Complainant has denied the aforesaid defence version put forth by the Accused, to corroborate his claim, the Accused has produced his Bank statement, though which is not marked as exhibit, the said document goes to show that, the cheques of the series of the cheque in dispute were used by him during the year 2012 itself.
58. No doubt, there is no prohibition under the banking rules to use the old cheques in the subsequent years. However, the fact that, the Accused has used the cheques of the same series of the cheque in dispute during the year 2012 itself corroborates his defence thereby probabalising his defence version.
59. Therefore from the material available on record, it is clear that, the Complainant has utterly failed to prove the existence of the alleged loan transaction between the Accused and him as claimed by him and he has also failed to establish his source of funds as on the date of the alleged loan transaction.
60. Nextly, it is pertinent to note that, the Accused has also taken up the technical defence of the alleged non- service of the legal notice. However, the said defence, though a technical one and one of the mandatory requirements under Sec.138 (b) of the N.I.Act to be strictly 30 C.C.No.23139/2015 J complied with by the Complainant, is no longer a valid defence available to the Accused, if the case of the Complainant is bound to be accepted by the court on the other grounds.
61. Moreover in view of the decision of the Hon'ble Apex Court in the case of CC Alavi Haji Vs., Palapetty Muhammed and ano., reported in 2007 AIR SCW 3578, wherein it is clearly held that:-
"The drawer of the cheque is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court in pursuance of the service of summons on him and in such situation, his defence of non-service of the legal notice cannot be available to him".
the Accused is no longer entitled to plead the defence of the non-service of the legal notice, if the case of the Complainant is bound to be accepted on the other grounds. Therefore in the present case, in view of the well settled position of law in this regard as per the decision of the Hon'ble Apex Court cited supra, I have no hesitation to hold that, the Accused is not entitled to the technical defence of the alleged non- service of the legal notice.
31 C.C.No.23139/2015 J62. Therefore the appreciation of the evidence on record goes to show that, the Complainant has failed to prove his financial capacity as well as his case beyond reasonable doubt and on the contrary, the Accused has successfully pointed out the serious doubtful circumstances in the case of the Complainant. In such circumstances the benefit of the same needs to be extended to the Accused. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-
conferred u/Sec. 255(1) of Cr.P.C. the Accused is hereby acquitted of the offence punishable u/Sec.138 of Negotiable Instruments Act.
His bail bond and surety bond stands discharged.
(Dictated to the Stenographer, transcript thereof is computerized by her, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 17thday of November, 2018).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
PW.1 : Sri. L.Gaviraja;
PW.2 : Sri. Nageshwar Rao;
PW.3 : Sri. M. Kumar.
32 C.C.No.23139/2015 J
2. List of documents exhibited on behalf of the
Complainant:-
Ex.P.1 & P.2 : Original Cheques;
Ex.P.1(a)& : Signatures of the Accused;
P.2(a)
Ex.P.3 & P.4 : Bank Memos;
Ex.P.5 : Office copy of the Legal Notice;
Ex.P.6 & P.7 : Postal Receipts;
Ex.P.8 & P.9 : Track Results;
Ex.P.10 to 12 : I.T. Returns for the Assessment year 2012-13 to 2014-15.
3. List of witness/s examined on behalf of the Accused:-
- Nil -
4. List of documents exhibited on behalf of the Accused:-
- Nil -
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.33 C.C.No.23139/2015 J
17.11.2018 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power-conferred u/Sec. 255(1) of the Cr.P.C. the Accused is hereby acquitted of the offence punishable u/Sec.138 of Negotiable Instruments Act.
His bail bond and surety bond stands discharged.
XVI ACMM, B'luru.