Bangalore District Court
Sri. T.V. Valasale Gowda vs Smt. Shanthala on 27 January, 2021
1
C.C.No.30462/2017 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 27th day of January, 2021
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.30462/2017
Complainant : Sri. T.V. Valasale Gowda,
S/o. Late Sri.Venkate Gowda,
Aged about 54 years,
No.519/A, (Old No.119/A),
Garla Garnet,
Above Coffee Day,
9th Main, 4th Block, Jayanagar,
Bengaluru 560 011.
(By Sri. C.S.Sudheer and
Associates, Advs.,)
Vs
Accused : Smt. Shanthala,
W/o. Late Vishwanath.V.S,
Prop. S.K. Road Lines,
No.19/1, 2nd Main, 3rd Cross,
Kalasipalyam New Extension,
Bengaluru 560 002.
And also residing at
2
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No.1046, 2nd A Cross,
1st Main Road,
Sarvagnanagar (SVG Nagar),
Moodlapalya, Nagarbhavi,
Bengaluru 560 072.
(By Sri.Veeresh Kumar Javali. M.C,
Advs .,)
Case instituted : 18.11.2017
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 27.1.2021
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, accused be friended him through one Sri.A.V.Venkate Gowda @ Swamy Gowda who was working with accused in S.K.Road Lines situated No.19/1, 2nd Main, 3rd Cross, Kalasipalyam New Extension, Bengaluru, as accused had a financial 3 C.C.No.30462/2017 J commitment and had sought hand loan of Rs.4 Lakhs in the month of May 2016 from him and had promised him that, she would return the same within one year and also assured him that she would pay interest at 12% p.a and she also requested him that she will pay the interest separately at the end of one year while repaying the amount. As per the assurance and promise of the accused, he advanced the hand loan of Rs.4 Lakhs in the second week of May 2016, for the clearance of the said hand loan, the accused had issued the cheque bearing No.107015 dt:10.8.2017 drawn on Canara Bank, Bangalore Sports Authority of India, Bangalore for Rs.4 Lakhs and requested him to present the said cheque on 11.10.2017, as per the instructions of the accused, he presented the said cheque for encashment through his banekr, the same came to be returned with an endorsement of "Account Closed" vide cheque return memo dt: 12.10.2017, for the same the accused requested him few more days to repay the same. The complainant further contends that, as there was no proper reply nor any amount was paid, a legal notice dt: 26.10.2017 was issued to 4 C.C.No.30462/2017 J the accused through RPAD and Speed Post on 26.10.2017 calling upon her to pay the amount within 15 days from the date of receipt of the notice, the notice sent through RPAD and Speed post were also duly served on the accused, inspite of receipt of the notice, the accused have neither replied to the said notice nor paid any amount. Hence he has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavitinlieu of his sworn statement, in which, he has reiterated the averments made in the complaint. In support of his evidence, P.W.1 has relied upon the documentary evidence as per P.1 to P.18., i.e, Original Cheque dated: 10.8.2017 is as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of Legal Notice as per Ex.P.3, postal receipts as per Ex.P.4 to P.7, Postal acknowledgement as per Ex.P.8, returned legal 5 C.C.No.30462/2017 J notices as per Ex.P.9 and P.10 respectively, postal envelopes as per Ex.P.11 and P.12 respectively, postal receipts as per Ex.P.13 and P.14 respectively, postal acknowledgement as per Ex.P.15, Photos as per Ex.P.16 and P.17, C.D. as per Ex.P.18. One A.V. Venkategowda is examined as PW.2 and closed his side.
4. Primafacie case has been made out against the accused and summons was issued against the accused in turn has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to her, to which she pleaded not guilty and claims to be tried.
5. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as she intended to set out her defence, then the case was posted for the crossexamination of complainant.
6. Thereafter, the statement of the accused as 6 C.C.No.30462/2017 J required under Sec.313 of the Cr.P.C. has been recorded. She has denied the incriminating evidence appearing against her and has chosen to lead her rebuttal evidence subsequently the Accused has examined as DW.1 and she has produced Death certificate of her husband and Statement of Accounts as per Ex.D.1 and D.2.
7. Heard by learned counsel for the complainant and the Accused and perused the written arguments submitted by the learned counsels for the complainant and the accused and also the decisions relied upon by the learned counsel for the complainant i.e. in 1) 20194SCC197 in case of Birsingh Vs.Mukesh Kumar; 2) Crl.A.No.508/2019 (Supreme Court of India) incase of Rohitbhai Jeevanlal Patel Vs. State of Gujarath; 3) 19711 SCC396SC Union of India Vs. Jyothi Prakash Mitter; 4) AIR 2003 P H 344 Punjab and Haryana High court Yash Pal Vs. Kartar Singh; 5) Rajgopal Vs. A.Sivasubramanian Madras high Court,Madurai Bench; 6) Uthirapathy Vs. 7 C.C.No.30462/2017 J Balasubramanian Madras High Court; 7) Criminal Petition No.101456/17 C/w. 100366/17
- Dharwad Bench, High Court of Karnataka, 8) Sampelly Sathyanagaraya Rao Vs. Indian Renewable Energy Development Agency Ltd., 201610SCC458, 9) Sri.Yogesh Poojary Vs. Sri.K.Shankar Bhat - ILR 2019 KAR 493.
8. The decisions relied upon by the learned counsel for the accused i.e. 1) Crl. Appeal no.939/2010 Yeshwanth Kumar Vs. Shanthkumar 2) Crl. Appeal No.192/1998 G.Premadas Vs. Sri.Venkataraman; 3) (2015) 1 SCC 99 in case of K.Subramani Vs. K.Damodara Naidu; 4) 2007 AIR SCW 6736 John K. John Vs. Tom Varghese and another; 5) (2008) 1 SCC 258 K. Prakashan Vs. P.K. Surendran 6) 2008 CRI.L.J. 3353 Bindo Kumar Lall Vs. State of Jharkand and another; 7) LAWS (MAD) 2006 11 280 Sri.Ramakannan Vs. Chettiar and Co. 8) LAWS (KAR) 2010 1 52 Sri.B.Girish Vs. S. 8 C.C.No.30462/2017 J Ramaiah; 9) (2009) 2 SCC 513 Kumar Exports Vs. V.Sharma Carpets; 10) AIR 2019 SC 1983 Basalingappa Vs. Mudibasappa; 11) (2010) 11 SCC 441 Rangappa V. Vs. Sri Mohan; 12) Crl. Appeal No.261/2013 Vijay Vs. Laxman and Anr.
9. On the basis of complaint, evidence of complainant and documents the following points that are arise for consideration are:
1. Whether the complainant proves that the accused has issued cheque bearing No.107015 dated:
10.8.2017 for Rs.4,00,000/ drawn on Canara Bank, Bangalore Sports Authority of India to discharge legally recoverable debt to the complainant and when the complainant has presented cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Account closed" on 12.10.2017 and the complainant issued legal notice to the accused on 26.10.2017 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?9
C.C.No.30462/2017 J
2. What Order?
10. The above points are answered as under:
Point No.1: In the Negative Point No.2: As per final order for the following:
.
REASONS
11. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act 10 C.C.No.30462/2017 J presupposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
12. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must 11 C.C.No.30462/2017 J have been issued towards legally recoverable debt or liability. Sec.118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and are rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
13. In the present case the complainant has examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire contents of the complaint. The complainant/PW.1 testified that, accused be friended him through one Sri.A.V.Venkate Gowda @ Swamy Gowda who was working with 12 C.C.No.30462/2017 J accused in S.K.Road Lines situated No.19/1, 2 nd Main, 3rd Cross, Kalasipalyam New Extension, Bengaluru, as accused had a financial commitment and had sought hand loan of Rs.4 Lakhs in the month of May 2016 from him and had promised him that, she would return the same within one year and also assured him that she would pay interest at the rate of 12% p.a., and she also requested him that she will pay the interest separately at the end of the year while repaying the amount. The complainatn/PW.1 further testifed that, as per the assurance and promise of the accused, he advanced the hand loan of Rs.4 Lakhs in the second week of May 2016, for the clearance of the said hand loan, the accused had issued the cheque bearing No.107015 dt:10.8.2017 drawn on Canara Bank, Bangalore Sports Authority of India, Bangalore for Rs.4 Lakhs and requested him to present the said cheque on 11.10.2017 and as per the instructions of the accused, he presented the said cheque for encashment through his banker, the same came to be returned with an endorsement of "Account Closed" vide cheque return memo dt: 12.10.2017, for 13 C.C.No.30462/2017 J the same the accused requested him few more days to repay the same. The complainant/PW.1 further testified that, as there was no proper reply nor any amount was paid, a legal notice dt: 26.10.2017 was issued to the accused through RPAD and Speed Post on 26.10.2017 calling upon her to pay the amount within 15 days from the date of receipt of the notice, the notice sent through RPAD and Speed post were duly served on the accused, inspite of receipt of the notice, the accused neither has replied to the said notice nor paid any amount. Hence he has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
14. In support of his evidence, P.W.1 has relied upon the documentary evidence as per P.1 to P.18., i.e, Original Cheque dated: 10.8.2017 is as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of Legal Notice as per Ex.P.3, postal receipts as per Ex.P.4 to P.7, Postal acknowledgements as per Ex.P.8, 14 C.C.No.30462/2017 J returned legal notices as per Ex.P.9 and P.10 respectively, postal envelopes as per Ex.P.11 and P.12 respectively, postal receipts as per Ex.P.13 and P.14 respectively, postal acknowledgement as per Ex.P.15, Photos as per Ex.P.16 and P.17, C.D. as per Ex.P.18.
15. The Accused in her defence has denied the loan transaction in question and issuance of cheque in question to the accused towards discharge of loan in question. It is also defence of the Accused that, her deceased husband during his life time was running Transport business in the name and style of "S K Road Lines" and her husband died on 28.3.2011 during the said time her son was studying and due to their inexperience in transport business after death of her husband the transport business i.e., was entrusted to look after the affairs of the said business to one Swamy Gowda @ Venkate Gowda who was her husband's friend and at that time she used to give him cheque book contained signed blank cheques and ATM Debit card towards utilization for the said business and during the 15 C.C.No.30462/2017 J month of March 2016 they closed their Road lines but the said Swamy Gowda @ Venkategowda had not return the proper accounts but requested her to give a sum of Rs.1 lakh to him but she did not lend the said amount to him due to the said reason the said Swamy @ Venkategowda has misused her blank signed cheque which was given to him during the year 2012 through the present complainant by filing this false complaint. It is also the defence of the accused that, she does not know the complainant and has not received any loan amount from him and has not issued the cheque in question towards discharge of the loan as claimed by the complainant. It is also the defence of the accused that, the accounts pertaining to SK Road Lines was closed during the year 2017. Hence, the defence of the accused goes to show that, the accused has denied the entire claim of the complainant and also acquitance of the complainant as stated by him. It is settled law that, once the issuance of the cheque infavour of holder in due course is admitted by the drawer, presumption can be drawn about the existence of legally recoverable debt U/s.139 of N.I. 16 C.C.No.30462/2017 J Act, terms in favour of holder in due course. The Hon'ble Apex Court in Rangappa Vs. Mohan case reported in 2010(11) SCC 441, has held that, "issuance of the cheque would create a presumption with respect to legally enforceable debt in favour of the payee of the cheque", however, the said presumption is rebuttable. In the present case, it has tobe examined as to whether the Accused has rebutted the presumption successfully or not, by examining oral and documentary evidence adduced by the both parties.
16. It is also settled law that, if the drawer of the cheque is admitted issuance of the cheque and his/her signature on the cheque, presumption can be drawn to the extent of consideration as per Sec. 118 and 139 of Negotiable Instruments Act, however the said presumptions are rebuttable presumptions and Accused can rebut the said presumptions either by relying the materials produced by the complainant or by producing cogent and convincible evidence on his/her behalf. In this regard, it is relevant here to refer the admitted facts of the complainant in his 17 C.C.No.30462/2017 J evidence and also in his crossexamination. As per the evidence of the complainant that, accused be friended him through one Sri.A.V. Venkategowda @ Swamy Gowda who was working with the accused in S.K. Road Lines , Bengaluru and as the accused had financial commitment sought hand loan of rs.4 Lakhs in the month of May 2016 from him and also promsied that, the said amount would return within one year and also agreed to pay interest at 12% p.a. separately at the end of year while repaying the loan amount, accordingly he advanced a loan of Rs.4 Lakhs in the 2nd week of May 2016. But the accused during the course of his crossexamination has admitted certain facts at page No.1 & 2 of cross examination which reads as under:
" As I used to consign the borewell pumps through the S.K. Transport, which was being run by the accused, I came in contact with her"
Further at page No.3 & 4 of cross examination admitted as under: 18 C.C.No.30462/2017 J " I came in contact with the accused for the first time in the year 2015. There has been no transaction between the Accused and myself with regard to the consignment of the borewells through her transport, apart from the one that, I have stated in my earlier crossexamination. It is true to suggest that, accused is neither my friend nor my relative.
Further at page No.6 of his cross examination admitted as under:
ಆರರರಪಯ ಮಗ 2016 ನರ ಇಸವಯಲ ನನನನದ 4 ಲಕ ರರ. ಗಳ ಸಲ ಕರಳಲಲ ಬನದದಲ ಆ ಸಮಯದಲ ವನಕಟರಗಡ ಎನಬತ ಹಜರದದರಲ. ಆ ಸಮಯದಲ ಆರರರಪಯ ಮಗ ಟನಬರ ದ ಣದ ಹತತರ ನನಲ ನಡಸಲತತದದ ಕಟಟಡ ಯರರ ಲರಔಟನ ಬಸನಲ ಕಮಗರಯ ಸಸಳಕಕ ಬನದದದರಲ. ನನಲ ಅದರ ದನ ಆರರರಪಗ ಹಣ ಕರಟಟಲಲ. ಆರರರಪ ನನನನದ ಹಣ ಕರಳದದರಲ ಎನದಲ ಹರಳಲದ ದನದನದ ಒನದಲ ವರದ ನನತರ ನನಲ ಆಕಗ ಹಣ ಕರಟಟರಲತತರನ.
Further at page No.8 of his cross examination admitted as under:
ಆರರರಪಗ ನನಲ ನರರವಗ ಹಣ ಕರಟಟ ಲಲ.
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C.C.No.30462/2017 J
Hence, the above admissions of the
complainant goes to show that, though the
complainant has stated in his complaint and
evidence that, the accused be friended him through one Sri.A.V. Venkategowda @ Swamy Gowda who was working with the accused in SK Road Lines, Bengaluru and out of the said acquitance the accused sought hand loan of Rs.4 Lakhs to him but whereas the complainant in his crossexamination has stated contrary to his own version that, he came in contact with the accused as he used to consign the borewell pumps through the SK Road Lines Transport and the accused is neither his friend nor his relative, hence the said admissions itself creates a serious doubt with regard to the acqutiance of the accused as stated by the complainant in his complaint and evidence. If really the accused became of friend of the complainant through one A.V.Venkategowda @ Swamy Gowda, definitely he would have stated the said fact in his cross examination, therefore at the first instance only the complainant has miserably failed to prove how he came in contact with the accused as stated by him.20
C.C.No.30462/2017 J It is also imporant to mention here that, the complainant at one breath in his complaint and evidence stated that, as the accused had financial commitments and sought a hand loan of Rs.4 Lakhs in the month of May 2016 from him and promised him to return the same within one year and also agreed to pay separate interest at the rate of 12% p.a at the end of one year ie., at the time of repaying the loan amount, but whereas in the crossexamination again he has stated contrary to his own statement made in the complaint and evidence that, during the year 2016 the son of the accused approached him and requested a loan of Rs.4 Lakhs and he has advanced the loan after one week from the date of approach of the son of the accused, hence the said admissions itself makes it clear that, the accused directly has not approached to the complainant and sought alleged loan amount of Rs.4 Lakhs and also agreed to repay the said loan amoutn within one year and separate interest at the rate of 12% p.a as contended by the complainant. If really the complainant has advanced the loan of Rs.4 Lakhs to the accused, definatley he would hae stated the said 21 C.C.No.30462/2017 J fact in his crossexamination or otherwise if the son of the accused approched him and sought a hand loan of Rs.4 Lakhs on behalf of the accused, definatley the complainant would have stated the said fact in his complaint or evidence, therefore the above admissions of the complainant are not stray admissions, on the contrary the said admissions are material admissions and they are contradictory to the claim made by the complainant himself in his complaint and also evidence in respect of alleged lending of loan amount of Rs.4 Lakhs to the accused, therefore a serious doubt creates with regard to lending of the loan amount to the accused by the complainant. It is also important to note here that, the complainant at page No.5 and 6 of his cross examination has clearly admitted that, whoever paying loan amount to borrower, in such circumstances they will note down the date, month and year with regard to lending of loan amount when such being the fact and the complainant is having knowledge about the same he would have stated exact date, month and year ie., when he has allegedly advanced loan amount either to the accused or to the 22 C.C.No.30462/2017 J son of the accused, on this count also a serious doubt arised with regard to alleged approach of the accused or her son for seeking hand loan of Rs.4 Lakhs as claimed by him. It is also relevant here to mention that, the complainant in his cross examination has clearly admitted that, the accused approched her and sought loan in respect of business of her SK Road Lines but he has not mention the same either in his complaint or in his affidvit evidence, hence it goes to show that, if really the accused approached him seeking loan to meet out the affairs of her S.K.Road Lines business, definitely the complainant would have mention the same either in his complaint or in the affidavit evidence instead of mentioning the same as hand loan, therefore the claim made by the complainant in the complaint and also evidence and his admissions goes to show that, the complainant is not sure or definate about the purpose of lending of alleged loan amount either to the accused or to her son.
17. It is also important to note here that, the complainant has examined one witness by name 23 C.C.No.30462/2017 J A.V. Venkategowda as PW.2 on his behalf and the PW.2 in examinationinchief itself stated contrary to the version of complainant that, the accused approached and requested him to provide loan to her and in turn he contacted the complainant and resqeusted him to advacne loan to the accused as she requires amount but at that time the complainant did not advance the loan and agreed to lend after 3 to 4 months but in the meantime the son of the accused requested him to provide loan amount, thereafter he takes the son of the accused i.e. Dhanush to the complainant and requested to lend the loan amount, on that day the accused gave a loan of Rs.4 Lakhs to the son of the accused i.e. to Dhanush at that time the said Dhanush promised to return the said amount within three months. Hence, the evidence of PW.2 itself is contradictory to the version of the complainant i.e. the complainant in his complaint and evidence stated that, the accused has approached him and requested a hand loan of Rs.4 Lakhs and in turn he advanced the said loan amount to the accused and in turn the accused agreed to repay the said loan amount within one year 24 C.C.No.30462/2017 J and also agreed to pay interest at 12% p.a. separately at the end of the one year, therefore the evidence of PW.2 in respect of lending of loan amount to the accused cannot be acceptable one. It is also important to note here that, the complainant at one breath contends that, the accused approched him and sought loan amount and he advanced the same to her but whereas the PW.2 another breath stated that, the son of the accused I.e Dhanush approched him and requested to provide loan amount and thereafter he had taken the son of the accused to the complainatn and the complainant in turn advanced the loan amount to the son of the accused and in turn he agreed to return within three months with bank interest, therefore the two versions of the complainant cannot be acceptable one and creates serious doubt as to the lending of loan amount in question and the accused has agreed to repay the same within one year and also promised to pay interest at 12% p.a at the end of one year as claimed by the complainant in his complaint as well as in his evidence. It is also important to note here that, the PW.2 in his cross examination has stated that, he 25 C.C.No.30462/2017 J had taken the son of the accused to the complainant in the first week of May 2016 and the complainant advanced the loan amount in the second week of May 2016 and the accused agreed to repay the said amount within three months and also agreed to pay bank interest on the loan amount, therefore the said admissions of the PW.2 are taken into consideration they are contradictory and against to the claim made by the complainant i.e. the claim of the complainant is the accused has received the loan amount of Rs.4 Lakhs and agreed to repay the same within one year but whereas PW.2 stated that, the son of the accused received the loan amount and agreed to repay the same within three months, therefore the two versions of the complainant and PW.2 creates a serious doubt even with regard to period of repayment of the loan amount in question by the accused as stated by the complainant.
18. It is important to mention here that, the complainant in his complaint and evidence has specifically contended that, for the clearance of the hand loan the accused has issued the cheque 26 C.C.No.30462/2017 J bearing No. 107015 dt: 10.8.2017 for Rs.4 Lakhs and reqeusted to present the said cheque on 11.10.2017, accordingly he has presented the said cheque but it was returned with endorsement of "Account Closed" vide memo dt: 12.10.2017, but on entire perusal of the averments of the complaint and evidence of the complainant makes it clear that, the complainant either in his legal notice, complaint and evidence nowhere stated or mentioned the specific date, month and year and or place in which the accused approached him and issued the subject matter of the cheque in his favour, hence in view of the same, a serious doubt creates with regard to issuance of cheque in question by the accused in favour of the complainant towards the discharge of the loan transaction in question. It is also important to note here that, the complainant during the course of his cross examination has admitted that, the cheque in question has been issued on the very day when the alleged loan amount advanced to the accused . It is also admitted by the complainant that, except the signature of the accused the remaining contents of the cheque have been filled up by him 27 C.C.No.30462/2017 J only, therefore the said admissions itself creates a doubt that, the accused has issued the cheque in question for sum of Rs.4 Lakhs towards discharge of the loan transaction in question as claimed by the complainant. Even it is not the case of the complainant that, the accused has issued blank signed cheque to him and also consented to fill up the contents of the cheque at the time of presentation of the cheque, therefore by the admissions of the complainant itself goes to show that, without the consent or knowledge of the accused i.e. the drawer of the cheque the complainant himself filled up the contents and presented the said cheque to the bank, in such circumstances it cannot be held that, the cheque in question was issued by the accused towards discharge of the alleged debt in question. It is also important to note here that, the complainant at page No.10 of his crossexamination has specifically admitted that, at the time of lending of the loan amount the accused had given the cheque in question and requested to retain the cheque with him until repayment of the loan amount and after returning the loan amount requested to return the 28 C.C.No.30462/2017 J cheque in question, hence these admissions of the accused creates serious doubt with regard to issuance of cheque in question by the accused towards discharge of loan amount and accused has requested to present the cheque in question on 11.10.2017 as alleged by the complainant in the complaint. If really the cheque in question was issued by the accused as claimed by the complainant, he would not have admitted in his crossexamination that, the cheque in question was given by the accused as security at the time of lending the loan amount with a condition to return the said cheque after repayment of the loan amount, therefore the admitted facts of the complainant are inconsistent and contrary to his own claim made in the complaint and evidence with regard to issuance of cheque in question by the accused and same cannot be acceptable one.
19. It is also important to mention here that, the complainant in his crossexamination at page No.12 has also admitted that, as per the entry appearing on the disputed cheque i.e. 2012 MCRAQ 29 C.C.No.30462/2017 J means the cheque pertains to the year 2012 and all the serial number cheques pertaining to the year 2012 were realized during the said year only and also not denied the suggestion made to him that, the cheque in question pertains to the account of the SK Road Lines and it was issued as blank cheque to Venkategowda in the year 2012 itself, hence in view of non denial of the specific suggestion made to the complainant that, the cheque in question was given to one Venkategowda as blank cheque in the year 2012 itself in respect of affairs of the SK Road Lines itself sufficient to hold that, the cheque in question has not been issued to the complainant towards discharge of the alleged debt in question. It is also relevant here to refer the admissions of the complainant at page No.13 of his crossexamination that, the complainant unequivocally admitted that, he has not collected any other documents either from the accused or her son, except the cheque in dispute and that too the said cheque was collected towards security of the loan amount advanced by him and he has not disclosed the said fact that, either in the legal notice or in the complaint or in his affidavit 30 C.C.No.30462/2017 J evidence, hence the above said admissions of the complainant also makes it clear that, the complainant himself admitted that, the cheque in question was collected by him at the time of advancing loan amount as security but the said fact has not been disclosed by him either in his legal notice, complaint or in his evidence, therefore an adverse inference can be drawn against the complainant that, the complainant has concealed the true facts and has contended falsely in his legal notice, complaint and evidence that, the cheque in question was issued by the accused for clearance of the hand loan and requested him to present the said cheque on 11.10.2017.
20. In addition to the above, the witness of the complainant i.e., PW.2 also in his evidence stated that, after receiving the loan amount the accused did not repay the same to the complainant even after expiry of one year, thereafter the complainant started to give torture to him as the accused is not ready to repay the loan amount to him, therafter he has instructed the complainant to present the cheque 31 C.C.No.30462/2017 J which was with him and in his crossexamination has also admitted that, the complainant had not collected any other documents except the cheque at the time of lending of the loan amount and he was present at the time of issuance of the cheque and the contents of the cheque ie in Ex.P.1 have been written by the complainant. Hence the very evidence of the PW.2 makes it clear that, the cheque in question was collected by the complainant at the time of lending of the loan amount in question as security and it was in his possession and the contents of the cheque ie., writings in the cheque were also written by the complainant himself only without her consent but the accused has not written the contents of the cheque and handed over it to the complainant. The PW.2 has also instructed to the complainant to present the said cheque that means, the cheque in question was not presented by the complainant as per the instructions of the accused but on the contrary as per the instructions of the PW.2 only the cheque in question was presented by the complainant, thus the claim of the complainant that, the cheque in question was presented by him 32 C.C.No.30462/2017 J as per the instructions of the accused falsified by the evidence of the PW.2, therefore from the evidence of PW.2, it can be held that, the cheque in question has not been issued by the accused to the complainant but on the contrary the cheque in question was in possession of the complainant and it was collected towards security of the loan amount as admitted by the complainant and the complainant has followed the instructions of PW.2 for presentation of the cheque to the bank.
21. Hence, on careful considering the oral and documetnary evidence of the complainant and his witness i.e. PW.2 and the admissions of the complainant and PW.2 makes it clear that, the complainant has miserably failed to prove that, accused be friended to him through one Sri.A.V. Venkategowda @ Swamy Gowda and approched him seeking financial assistance ie., hand loan of Rs.4 Lakhs in the month of May 2016 and he has lend the said loan amount to the accused and in turn the accused for clearance of the said loan had issued the cheque in question ie., Ex.P.1 in favour of the 33 C.C.No.30462/2017 J complainant and as per the instructions of the accused the complainant has presented the said cheque through his banker for encashment and it was dishonoured as contended by the complainant.
22. It is important to note here that, in this case the accused has admitted her singature at Ex.P.1(a) i.e cheque in question and also admitted that, the cheque inquestion belongs to account of M/s. S.K. Road Lines and also admitted that, the cheque in question was dishonoured for the reason of "Account Closed" and also admtited that, after dishonour of the Ex.P.1 cheque the legal notice issued by the complainant was served on her. Hence, it goes to show that, the complainant has complied mandatory requriementes as required U/s.138 (a) to
(c) of NI Act and an initial presumptions can be drawn infavour of the complainant U/s. 118(a) and 139 of NI Act, But the said presumptions are not conclusive and are rebuttable one and accused can rebut the said presumptions either by relying the materials produced by the complainant or by producing evidence on his behalf as held by Hon'ble 34 C.C.No.30462/2017 J Apex Court of India in several decisions mainly ie., Rangappa Vs. Mohan case reported in 2010 (11) SCC 441. Hence, in this case as it is already held in the above that, the complainant has miserably failed to prove that, he has held the loan amount of Rs.4 Lakhs to the accused and the accused in turn has issued the Ex.P.1 cheque in his favour towards discharge of said loan amount. Apart from that, the accused in order to rebut the presumptions available to the complainant, herself examined as DW.1. The accused /DW.1 in her evidence deposed that, her husband was died on 28.3.2011 and during his life time he was running transport business in the name of S.K. Road Lines and one Venkategowda @ Swamy Gowda was his friend and he was also working in the said transport business and after death of her husband the transport business was entrusted to look after the affairs of said business to said Venkategowda @ Swamy Gowda and during that time she used to give signed blank cheques and ATM Debit card to the said Venkategowda towards utilisastion of affairs of the business. The accused/DW.1 further stated that, during the month 35 C.C.No.30462/2017 J of March 2016 they have closed the tansport business and also clsoed the accounts pertaining to the M/s. S.K.Road Lines in the year 2017 and at that time, the said Swamy gowda has not submitted proper accounts to them and also requested to give an amount of Rs.1 lakh but she did not lend the said amount to him. The said Swamy Gowda has misused the cheque in question which was given as blank signed cheque to him in the year 2012 in respect of looking after the affairs of transport business, through the present complainant by filing this false complaint. In support of oral evidence the accused has produced death certificate of her husband which is at Ex.D.1 and true copy of bank statement pertaining to M/s. S.K.Road Lines bank account which is at Ex.D.2.
23. It is also important to mention here that, the complainant during the course of his cross examination has admitted that, the said Venkategowda @ Swamy Gowda was working in the M/s. S.K. Road Lines along with the deceased husband of the accused and also admitted that, after 36 C.C.No.30462/2017 J the death of husband of the accused the said Venkategowda continued to look after the affairs of the said M/s.S.K.Road Lines as the son of the accused was minor. It is also admitted by the complainant that, at the instance of the said Venkategowda the alleged loan of Rs.4 Lakhs was advanced to the son of the accused. It is also admitted by the complainant that, he has advanced the loan amount in respect of business of M/s. S.K. Road Lines and he has not directly given loan amount to the accused. It is also admitted by the complainant that, the disputed cheque ie., Ex.P.1 belongs to the account of M/s. S.K.Road Lines, Proprietory concern and he has not made the M/s. S.K.Road Lines as party to this complaint and except the signature on the cheque the all remaining contents were written by him only. It is also admitted that, at the time of advancing the loan amount the cheque in question was collected by him with a request to retain the cheque with him and return the said cheque to the accused after repayment of the loan amount in question. It is also admitted by the complainant that, he does not know as to whether as 37 C.C.No.30462/2017 J on the date of presentation of the said cheque whether the M/s.S.K.Road Lines proprietory concern was in existing or not and he does not know as to whether the said M/s. S.K.Road Lines, Propreitory concern was closed as on the date of issuance of legal notice.
24. It is also not denied by the complainant to the sugestions made to him that, the husband of the accused died in the year 2011 and due to lack of knoweldge in respect of business of the M/s. S.K.Road Lines transport the accused entrusted to look after the affairs of the M/s. S.K.Road Lines business to Venkategowda ie PW.2 and the accused used to give signed blank cheque in the hands of said Venkategowda towards payment of the staff who were working in the M/s. S.K.Road Lines. The complainant has also not denied the suggestion made to him that, the M/s. S.K.Road Lines transport business was closed in the month of February 2016 and the bank transactions pertains to the said Proprietory concern were completely closed in the month of March 2017 at that time the said 38 C.C.No.30462/2017 J Venakategowda was wokring in the M/s. S.K.Road Lines transport business. The complainant has also not denied the suggestions made to him that, as per the entry found on the disputed cheque ie., 2012 MCRAQ it appears that, the cheque in question was of the year 2012 and the other serial numbers of the cheques issued in the same year were realized. The complainant has also not denied the suggestion made to him that the cheque in dispute was issued as blank signed cheque to Venkategowda in the year 2012 towards affairs of the M/s. S.K.Road Lines business. Hence, the above admissions and non denial of the suggestions made to the complainant makes it clear that, the complainant has unequivocally admitted that, after the death of husband of the accused due to lack of knowledge the accused has entrusted to look after the affairs of the M/s. S.K.Road Lines transport business to one Venkategowda who was working with her husband in the said business during his life time and also handed over her signed blank cheque book to the said Venkategowda to utilize the said cheques during the course of business and the said cheques were 39 C.C.No.30462/2017 J handed over in the year 2012 itself. It is also admitted that, disputed cheque is also one of the cheque out of the signed blank cheques issued in the year 2012, handed over to Venkategowda.
25. In addition to the above, it is relevant here to refer the evidence of the complainant witness ie, PW.2 who is non other than the Venkategowda @ Swamy Gowda and earlier he was working in M/s. S.K.Road Lines tranport business along with the deceased husband of the accused and after the death of her husband the said Venkategowda continued to work in the said transport business. The PW.2 during the course of his crossexamination has specifically admitted that, at the time of transaction in question he was working in M/s. S.K.Road Lines and the accused and her son approached him and requested to provide loan to them, accordingly he had taken the son of the accused to the complainant and requested to give loan amount to the accused and at his instance the loan amount in question was advanced to the son of the accused, but the complainant has stated contrary to the said version that, the accused herself approached him and requested to loan 40 C.C.No.30462/2017 J amount,accordingly he advanced the loan amount to the accused. The PW.2 has also admitted that, while he was working in M/s. S.K.Road Lines during the year 2012 he used to take his salary by way of cash and as per the entry dt: 3.1.2012 in Ex.D.2 an amount of Rs.12,000/= was transfered to him and an amount of Rs.35,000/ each were withdrawn on 11.3.2012 and 7.2.2012 through the cheques which were presented in his name and also admitted that, the said cheques were issued towards the affairs of the M/s. S.K. Road Lines business. The PW.2 has also admitted that, he does not know the cheque in question i.e Ex.P.1 belongs to the year 2012 and has not denied the suggestion made to him that, he was removed from the M/s.S.K.Road Lines since he has not properly maintained and submitted the accounts pertains to the M/s.S.K.Road Lines. Hence, the above admissions of the PW.2 makes it clear that, admitedly he was working in M/s. S.K.Road Lines even during the life time of the husband of the accused and after the death of husband of the accused he was entrusted to lookafter the affairs of the said business and the accused used to handed 41 C.C.No.30462/2017 J over her signed blank cheques to him to utilize the said cheques towards the affairs of the business. It is also proved by the admission of the PW.2 that, the cheque in question pertains to the year 2012. It is also important to mention here that, the PW.2 in his crossexamination has specifically admitted that, when the accused has failed to return the loan amount the complainant started to give torture to him by contending that, the accused is not ready to pay the loan amount at that time he has instructed to the accused to present the cheque which was with him, hence it goes to show that, the PW.2 has got knowledge about the custody of the cheque I.e the cheque in question was already in the possession of the complainant and as per his instructions only the cheque in question was came to be presented, in such circumstances it can be held that, the cheque in question has entered into the hands of the complainant through the PW.2 only. It is also important to refer the crossexamination of the PW.2 that, the a specific question was posed to the PW.2, but the PW.2 has not denied the suggestion that, he has been removed from M/s.S.K. Road Lines since 42 C.C.No.30462/2017 J he has not properly maintained the accounts and return the same, hence an adverse inference can be drawn that, the PW.2 has clearly admitted that, he was removed from M/s. S.K. Road Lines on account of non maintaining of the accounts properly and the signed blank cheque handed over by the accused during the year 2012 to him and one of the said cheque has been produced before the court by the complainant i.e Ex.P.1 by filling up the contents in the cheque as admitted by the complainant and PW.2 during the course of the crossexamination i.e. the complainant has filled up the contents of the cheque in question except the signature of the accused. Therefore the entire perusal of the crossexamination of the PW.2 it can be held that, the PW.2 after the death of husband of the accused while working in S.K. Road Lines ie., during the year 2012 he was looking after the affairs of the S.K. Road Lines transport business has collected signed blank cheques from the accused to utilize the said cheques for the purpose of transport business and also he has been removed from the said S.K. Road Lines due to non maintaining of proper accounts and due to 43 C.C.No.30462/2017 J non lending of the amount of Rs.1 Lakh by the accused as requested by him, there are every chances of misuse of blank signed cheque of the accused by the PW.2 through the present complainant as contended by the accused in her defence.
26. Therefore, from the admissions of the complainant and his witness i.e. PW.2 makes it clear that, the accused has proved her defence that, the cheque in question was given to the PW.2 as signed blank cheque towards looking after the affairs of the S.K. Road Lines in the year 2012 and the said cheque has been produced by the complainant in the present case i.e. Ex.P.1 by filling the contents of the cheque and as per the instructions of the PW.2 the said cheque has been presented by the complainant to the bank and has filed this complaint against the accused. It is also proved by the accused that, the complainant has not advanced a loan of Rs.4 Lakhs to her and in turn she has issued the cheque in question towards discharge of the said loan amount, as admitted by the complainant and his witness in 44 C.C.No.30462/2017 J their crossexamination.
27. It is also the defence of the accused that, the PW.2 ie., Venkategowda has misused her signed blank cheque through the present complainant and filed this false complaint against her claiming that, she has borrowed a loan of Rs.4 Lakhs from the complainant and issued the cheque in question to the complainant. As it is already held in the above that, the complainant has miserably failed to prove that, he has advanced a loan amount in question to the complainant and the accused has issued the cheque in question to him towards discharge of the loan amount. Apart from that, it is an admitted fact that, the complainant in his legal notice, complaint and evidence and in his crossexamination also admitted that, he has not mentioned the exact date and place with regard to advancing the loan amount to the accused and complainant has also not mentioned in which place the accused has issued the subject matter of the cheque in his favour. It is also admitted by the complainant and his witness ie., PW.2 in their crossexamiantion that, the 45 C.C.No.30462/2017 J complainant had filled the contents of the cheque except the signature of the accused, hence it goes to show that, the blank signed cheque of the accused got filled in up by the complainant himself . If really the accused has borrowed the loan amount in question and issued the cheque in question towards discharge of the loan amount as claimed by the complainant, definitely the complainant would have mentioned the date and place in which the accused approched him and issued the cheque in question in his favour and also the contents of the cheque would be written by the accused only or with the consent of the accused the contents of the cheque could be filled up by the complainant but failure to mention the said important facts may leads to draw an adverse inference against the complainant that, the claim made by the complainant in this case appears to be doubtful and the admissions of the complainant and PW.2 corroborates the defence of the accused that the cheque in question was given to PW.2 as signed blank cheque towards utilizing the affairs of the S.K. Road Lines business. In this regard, it is relevant here to refer the decisions of Hon'ble High Court of 46 C.C.No.30462/2017 J Karnataka reported in ILR 2014 KAR 6572 in a case of Sri.H.Manjunath vs. Sri.A.M. Basavaraju, wherein the Hon'ble High Court of Karnataka held that "NEGOTIABLE INSTRUMENTS ACT, 1881 section 138 offence under - Judgment of Acquittal - Appealed against -Absence of statement in the complaint as to when the amount was actually given to the accused Absence of material particulars of the transaction in the complaint except signature all other entries are in different handwriting different ink and undoubtedly made at different time Mentioning of merely the date of issue of cheque without any material particulars - HELD , Judgment of acquittal is justified As seen from the complaint there is no statement as to when the amount was actually given to the Accused. The complainant has merely mentioned the date of issuance of cheque without any material particulars of the transaction. The cheque in question undoubtedly is signed by the accused.
47C.C.No.30462/2017 J The dispute raised is entries made in the cheque are not in his handwriting. - It is not the case of the complainant that cheque was issued in blank and filled up later with consent of the accused FURTHER HELD, perusal of cheque at Ex.P.1 makes it manifest that except signature all other entries are in different hand writing, different ink and undoubtedly made at different time. In this view it is difficult to accept the version of the complainant. CRIMINAL PROCEDURE CODE, 1973 - SECTION 378(4) - APPEAL AGAINST ACQUITTAL - DISCUSSED. It is a relevant here to the decision of Hon'ble Apex Court of India reported in (2015) 1 SCC 99 in the case of K.Subramani Vs. K. Damodar Naidu., wherein the Hon'ble Apex court held that " Debt, Financial and Monetary Laws Negotiable Instruments Act, 1881 Ss, 138, 118 and 139 - Dishonour of cheque - Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was 48 C.C.No.30462/2017 J made to appellant accused - Presumption infavour of holder of cheque, hence, held, Stood rebutted Acquittal restored". In another decision reported in (2014) 2 SCC 236 in the case of John K. Abhraham Vs. Simon C.Abraham and another., wherein the Hon'ble Apex court held that " In the present case the complainant not aware of the date when substantiate amount of Rs.1,50,000/= was advanced by him to the appellant/accused - respondent/ complainant failed to produce relevant documents in support of alleged source for advancing money to the Accused - complainant also not aware as to when and where the transaction took place for which the cheque in question was issued to him by Accused - complainant also not sure as to who wrote the cheque and making contradictory statements in this regard in view of said serious defects/lacuna in evidence of complainant, judgment of High Court reversing acquittal of Accused by trial court, held was 49 C.C.No.30462/2017 J perverse and could not be sustained - acquittal restored". The principles of law laid down by Hon'ble Apex Court and High Court of Karnataka in the above decisions are aptly applicable to this case in hand, as in the present case also the complainant has not stated the date on which the Accused was approached him seeking loan of Rs.4 Lakhs and has not stated the place of issuance of cheque in question to him and also admitted that, he himself written the contents of the cheque in question i.e., Ex.P.1 without the consent of the accused, in such circumstances and in view of the above principles of law laid down by Hon'ble High Court of Karnataka and Apex Court of India, the complainant has miserably failed to prove that he has lent loan amount of Rs.4 Lakhs to the Accused and in turn the Accused has issued the cheque in question towards the discharge of the said loan amount, on the other hand, the Accused has rebutted the presumptions available infavour of the complainant.
28. It is also the defence of the accused that, the cheque in question i.e Ex.P.1 belongs to the M/s.
50C.C.No.30462/2017 J S.K.Road Lines, Proprietory concern and the said cheque has not been issued in Individual capacity of the accused but the complainant in his legal notice, complaint and evidence stated that, the accused has issued the cheque in question towards discharge of the loan transaction in question . The complainant in his crossexamiantion has admitted that, the cheque in question i.e., Ex.P.1 is not belongs to the individual account of the accused and it belongs to the account of her proprietory concern and he has not made the S.K.Road Lines Propreitory concern as party to this complaint. Hence, the learned counsel for the accused argued that, as per the admissions of complainant the cheque in question has not been issued by the accused in her individual capacity and issued on behalf of the S.K.Road Lines proprietory concern in favour of the complainant and for sake of argument, if the Ex.P.1 cheque is issued by the accused even then also the complaint filed by the complainant is not maintainable U/s. 141 of Negotiable Instrument Act without impleading the S.K.Road Lines Firm as a party to this complaint ie., as per Sec.141 of N.I. Act the firm is not made as a 51 C.C.No.30462/2017 J party to the proceedings in compliance of Sec.141 of the N.I. Act , the complaint itself is not maintainable. On careful considering the defence of the accused and perusal of the admitted facts by the complainant during his crossexamination and Ex.P.1 makes it clear that, the complainant categorically admitted that, the disputed cheque i.e Ex.P.1 is not pertains to the individual account of the accused but it belongs to the account of the S.K Road Lines proprietory concern and also admitted that, the said S.K. Road lines has not been made as party to this complaint. It is also seen from Ex.P.1 cheque that, there is clearly mentioning of name of the firm in it as "For S.K.Road Lines Proprietor" and the accused has signed to the said cheque. It is also seen from Ex.D.2 bank statement that, the cheque in question pertains to the account of S.K. Road Lines proprietory concern. Hence, in view of the admissions of the complainant and Ex.P.1 makes it clear that, the cheque in question has been issued on behalf of S.K.Road Lines Proprietory concern and admittedly the said proprietory concern has not made as party to this complaint. In additioin to that, the 52 C.C.No.30462/2017 J complainant himself has produced Ex.P.16 and P.17 photographs along with C.D. I.e Ex.P.18 by stating that, even as on this day also the S.K. Road Lines Transport is in existence and it is running by the accused, therefore as per the own admissions of the complainant it goes to show that, according to him as on this day also the S.K.Road Lines Tranport is in existence. It is relevant here to refer that, on careful reading of Sec.141 of NI Act, the explanation to the said section as made it clear that, "Company" means any body corporate and includes a firm or other association of Individuals, therefore in the light of said section it clearly states that, the term company also includes firm and under such circumstances when there is criminal liability towards discharge of the debt, a cheque has been drawn on company it mandates to implead or the impleading of company or a firm as one of the accused is must and without impleding the firm or a company the complaint itself is not maintainable. In the present case as stated in the above that, the complainant unequivocally admitted that, the Ex.P.1 cheque belongs to the S.K.Road Lines Proprietory concern and it is not 53 C.C.No.30462/2017 J pertains to the individual account of the accused, then under such circumstances it cannot be held that, the cheque in question i.e Ex.P.1 has been issued by the accused in her individual capacity. Therefore in view of mandate U/s.141 of N.I. Act without making the firm as a party to the proceedings the vicarious liability cannot be fixed on the accused. In this regard it is relevant here to refer the decision of Hon'ble Apex Court of Karnataka in Crl. Revison Petition No.219/2019 dt:
12.11.2019 in the case of Smt. Prabhavathi K.R. W/o. Late Muniraju and another Vs. Sri. Lokesh, S/o. Sri. Thirumalappa, wherein the Hon'ble High Court has held that " U/s. 141 of N.I. Act, without making the firm as a party to the proceedings the vicarious liability cannot be fixed on the accused" Hence, the principles of law held in the above referred decision are aptly applicable to the present case, since in this case also it is admitted by the complainant that, the Ex.P.1 cheque belongs to the account of the S.K. Road Lines Proprietory concern and the accused has not issued the cheque 54 C.C.No.30462/2017 J in question in her individual capacity, in such circumstances the complaint filed by the complainant is not maintainable.
29. On careful considering the written argument filed by the learned counsel for the complainant at para No.1 to 9 are not acceptable one in view of the reasons stated by this court while appreciating the oral and documentary evidence adduced by the complainant and also accused. It is held in the above that, the complainant has miserably failed to prove that, he has lent an amount of Rs.4 Lakhs to the accused and in turn the accused has issued cheque in question i.e. Ex.P.1 towards discharge of the alleged loan amount and it is also held that, the accused has successfully rebutted the presumptions available to the complainant not only by eliciting the materials from the evidence of the complainant but also by adducing her evidence and producing the documents in support of her defence. It is true that, the accused has admitted her signature and cheque in question belongs to her account but it is nowhere admitted by 55 C.C.No.30462/2017 J the accused that, the cheque in question i.e Ex.P.1 was issued in favour of the complainant and also proved that, the cheque in question entered into the hands of complainant through the PW.2 who was workign in S.K.Road Lines as opined by this court at the time of appreciation of the evidence of both parties. No doubt, the other defences which have been taken up by the accused has not rebutted but however when the accused has rebutted the presumptions available to the complainant and complainant has failed to prove the initial burden casted upon him as contemplated under the law, in such circumstances the complainant cannot be permitted to take contention that, the presumptions envisaged U/s. 139 are come to his aid, therefore for the said reasons the contentions taken by the learned counsel in the written argument cannot be acceptable one. It is true that, in view of the principles of law laid down by Hon'ble Apex Court and High Courts in the decisions relied upon by the learned counsel for the complainant i.e 1) 2019 4 SCC197 in case of Birsingh Vs.Mukesh Kumar; 2) Crl.A.No.508/2019 (Supreme Court of India) in case 56 C.C.No.30462/2017 J of Rohitbhai Jeevanlal Patel Vs. State of Gujarath; 3) 19711SCC396SC Union of India Vs. Jyothi Prakash Mitter; 4) AIR 2003 P H 344 Punjab and Haryana High court Yash Pal Vs. Kartar Singh; 5) Rajgopal Vs. A.Sivasubramanian Madras high Court,Madurai Bench; 6) Uthirapathy Vs.Balasubramanian Madras High Court; 7) Criminal Petition No.101456/17 C/w. 100366/17 - Dharwad Bench, High Court of Karnataka, 8) Sampelly Sathyanagaraya Rao Vs. Indian Renewable Energy Development Agency Ltd., 201610SCC458, 9) Sri.Yogesh Poojary Vs. Sri.K.Shankar Bhat - ILR 2019 KAR 493, the court can draw presumption U/s. 118 and 139 of N.I. Act that, when the holder of the cheque admitted the signature and issuance of the cheque the court can draw presumptions towards issuance of the cheque is for legally recoverable debt or liability but the Hon'ble Apex Court in the said decisions also held that, "Issuance of cheque would create a presumption with respect to legally enforceable debt in favour of the payee of the cheque however, the said presumption is rebuttable", but in the present case the facts and 57 C.C.No.30462/2017 J circumstances and the facts and circusmtances of the decided case are not one and the same and in the present case the accused has established that the cheque in question has not been issued to the complainant though she has admitted her signature on the cheque and also rebutted the presumption available in favour of the complainant, therefore with due respect to the principles of law laid down by the Hon'ble Apex Court of India and High Court of Karnataka referred by learned counsel for the complainant are not applicable to the claim made by the complainant in this case.
30. The learned counsel for the accused has releid upon the decisions in support of his argument i.e. 1) Crl. Appeal Bo.939/2010 Yeshwanth Kumar Vs. Shanthkumar 2) Crl. Appeal No.192/1998 G.Premadas Vs. Sri.Venkataraman; 3) (2015) 1 SCC 99 in case of K.Subramani Vs. K.Damodara Naidu; 4) 2007 AIR SCW 6736 John K. John Vs. Tom Varghese and another; 5) (2008) 1 SCC 258 K. Prakashan Vs. P.K. Surendran 6) 2008 CRI.L.J. 3353 Bindo Kumar Lall Vs. State of Jharkand and 58 C.C.No.30462/2017 J another; 7) LAWS (MAD) 2006 11 280 Sri.Ramakannan Vs. Chettiar and Co. 8) LAWS (KAR) 2010 1 52 Sri.B.Girish Vs. S. Ramaiah; 9) (2009) 2 SCC 513 Kumar Exports Vs. V.Sharma Carpets; 10) AIR 2019 SC 1983 Basalingappa Vs. Mudibasappa; 11) (2010) 11 SCC 441 Rangappa V. Vs. Sri Mohan; 12) Crl. Appeal No.261/2013 Vijay Vs. Laxman and Anr. On careful reading of the decision of Hon'ble High Court ie, Crl.Appeal No.939/2010 Yeshwanth Kumar Vs. Shanth kumar., wherein the Hon'ble High Court held that "Even in the complaint as well as in the examination in chief there is no clear averments that, complainant actually paid the loan amount to the accused and there is contradiction in the averment and in the examination in chief", therefore on this ground the complaintant is unable to show on what date he has paid the loan amount to the accused, therefore the contention of the complainant that he has actually lend the loan amount and in discharge of the said loan amount the accused issued the cheque to discharge legally 59 C.C.No.30462/2017 J recoverable debt cannot be accceptable one. In this case also the complainant has not mentioned exact date of lending of the loan amount either in the complaint or in the examinationinchief and even he is unable to say the exact date of lending of the loan amount in his crossexamination, therefore the principles of law laid down by the Hon'ble High Court of Karnataka are aptly applicable to the case on hand. It is also held in the decision of Hon'ble Apex Court of India reported in AIR 2019 SC 1983 in the case of Basalingappa Vs. Mudibasappa wherein also the Hon'ble Apex Court held that " Non mentioning of date of issuance of cheque by complainant in complaint as well as in his evidence and the complainant not satisfactorily explaining contradiction in complaint vis a vis his examinationinchief and crossexamination held complaint is not maintainable". The some of the other decisions relied by the learned counsel for the accused are already referred in the above at the time of discussion of the evidence. In view of the principles of law laid down by the Hon'ble Apex Court 60 C.C.No.30462/2017 J of India and High Courts relied upon by the learned counsel for the accused the accused has rebutted the presumptions available to the complainant and complainant has failed to prove the transaction in question and also issuance of cheque by the accused towards the discharge of the liability in question.
31. Therefore, on careful scrutiny of over all evidence of the complainant and Accused as it is already held and come to the conclusion that, the complainant has miserably failed to prove that he has lend an amount of Rs.4 Lakhs/= to the Accused by way of cash and in order to discharge the said loan amount the Accused has issued the cheque in question i.e.,Ex.P.1 infavour of the complainant. No doubt, some discrepancies have been elicited by the complainant during the crossexamination of Accused but there are no proof regarding the same, however when the complainant himself has failed to establish his case beyond all reasonable doubt, he cannot be permitted to find fault in the defence of the Accused. Hence the standard of proof is expected from side of the complainant is proof beyond all 61 C.C.No.30462/2017 J reasonable doubt and in the present case complainant has failed to prove his case beyond all reasonable doubt on the contrary the Accused has successfully rebutted the presumption available infavour of the complainant U/s.118 and 139 of N.I. Act by taking reasonable and probable defence, accordingly for the above said reasons this point is answered in the 'Negative'.
32. Point No.2: In the light of discussions made at above point and for the said reasons this point is answered in the negative and it is just and proper to pass the following : ORDER The complaint U/s.200 of Cr.P.C.
filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C.
the accused is acquitted for the offence punishable U/sec.138 of N.I.Act.
Personal bond executed by the Accused stands cancelled.
62C.C.No.30462/2017 J The cash security of Rs.4,000/= which was deposited by the Accused vide order dated 05.03.2018 is ordered to be refunded to her (if not lapsed or forfeited) after the expiry of the appeal period.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 27th day of January 2021).
.
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri. T.V. Valasale Gowda PW.2 : Sri. A.V. Venkategowda
2. List of documents exhibited on behalf of the Complainant: Ex.P1 : Original Cheque;
Ex.P1(a) : Signature of the Accused;
Ex.P2 : Bank Memo
Ex.P3 : Office copy of the Legal Notice;
Ex.P4 to P.7 : postal receipts;
Ex.P8 : Postal Acknowledgement
Ex.P.9 & P.10 : Returned Notices
63
C.C.No.30462/2017 J
Ex.P.11 & : Postal Covers
P.12
Ex.P.13 & 14 : Postal Receipts
Ex.P.15 : Postal Acknowledgement
Ex.P.16 & : Photos (Marked through DW.1)
P.17
Ex.P.18 : C.D (Marked through DW.1)
3. List of witness/s examined on behalf of the Accused: DW.1 : Smt. Shanthala
4. List of documents exhibited on behalf of the Accused: Ex.D.1 : Death Certificate of husband of DW.1 Ex.D.2 : Statement of Accounts (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
64C.C.No.30462/2017 J .
27.1.2021 case called, Both complainant and counsel for the complainant absent, accused absent, counsel for the accused present, E.P.filed, Heard and allowed. Judgment pronounced in the open court, vide separate order.
ORDER The complaint U/s.200 of Cr.P.C. filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C. the accused is acquitted for the offence punishable U/sec.138 of N.I.Act. Personal bond executed by the Accused stands cancelled. The cash security of Rs.4,000/= which was deposited by the Accused vide order dated 05.03.2018 is ordered to be refunded to her (if not lapsed or forfeited) after the expiry of the appeal period. XVI ACMM, B'luru.