Bangalore District Court
Smt. K.A. Padmavathi vs Sri. K.M. Munikrishnappa on 23 March, 2018
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SMT. C.G. VISHALAKSHI, B.A.L., L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO.4854/2016
Dated: This the 23rd day of MARCH-2018
COMPLAINANT/S: Smt. K.A. Padmavathi,
W/o. Sri. K.R. Ashok Kumar,
Aged about 50 years,
R/at. No.665, 19th Main,
Padmanabhanagar,
Bangalore-560070.
Rep. by her GPA Holder,
Sri. K.R. Ashok Kumar,
S/o. Late. K.R. Radhakrishna
Setty.
ACCUSED: Sri. K.M. Munikrishnappa,
S/o. Muniyappa @ Buddanna,
Major,
R/at. No.41 (First floor),
7th Main Road, Banagiri Nagar,
B.S.K. 3rd Stage,
Bangalore-560085.
OFFENCE Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Acquitted
**
JUDGEMENT 2 C.C.4854/2016
JUDGEMENT
This complaint is filed against the accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The accused has borrowed loan of Rs.15,00,000/- has hand from the complainant on 16-02-2015 agreeing to repay the same with interest at the rate of 2% p.a. and had executed demand promissory note and consideration receipt infavour of the complainant and undertaken to repay the principle amount with interest within short period, but thereafter, he failed to keep up his promise. After several requests and demands, the accused had issued two cheques i.e., the cheque bearing No.000159 for Rs.10,00,000/- and cheque bearing No.000160 for Rs.5,00,000/- both dated: 31-12-2015, both are drawn on the Karur Vysya Bank Ltd., No.13/2, Ashraff Commercial Complex, J.C. Road, Bangalore-560002 infavour of the complainant towards discharge of the loan of JUDGEMENT 3 C.C.4854/2016 Rs.15,00,000/-. As per the assurance, when the complainant has presented those cheques for encashment through his banker i.e., The Karur Vysya Bank Ltd., Avenue Road, Bangalore, those cheques were returned dishonoured for the reason 'Funds Insufficient' vide memo dated: 01-01-2016. The complainant caused legal notice against the accused on 01-01-2016 by RPAD demanding him to pay the amount covered under the cheques. Inspite of service of notice against the accused on 08-01-2016, the accused did not come forward to pay the amount covered under the cheques. Hence, having no other go, the complainant maintained this complaint against the accused, alleging that the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and prays to deal the accused as per law.
3. On presentation of the complaint, this court has taken cognizance of the offence, sworn statement of the GPA Holder of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the JUDGEMENT 4 C.C.4854/2016 process, the accused has appeared before this court and enlarged on bail. Copy of the complaint paper supplied to him. Substance of the accusation was read over and explained to the accused. Accused did not plead guilty and claims to be tried. Hence, the matter was posted for evidence of the complainant.
4. In order to prove the case of the complainant, the GPA holder the complainant got examined himself as PW.1 and got marked documents as Ex.P1 to P20 and closed his side evidence. After completion of the complainant's evidence, the accused was examined under Section.313 of Cr.P.C. and his statement was recorded. To substantiate his defence and to falsify the claim of the complainant, the accused not produced any evidence on his side.
5. Heard arguments. The counsel for the accused has submitted written arguments.
To strengthen the case of the complainant, the counsel for the complainant has relied upon the following citation:
JUDGEMENT 5 C.C.4854/2016
Cri. Appeal No.1020/2010 Rangappa V/s. Sri. Mohan ** To strengthen the case of the accused, the counsel for the accused has relied upon the following citation:
(2015)1 SCC 99 K. Subramani V/s. K. Damodara Naidu ** Manu/SC/0503/2008 Krishna Janardhan Bhat V/s. Dattatraya G. Hegde ** Manu/MH/1078/2009 Sanjay Mishra V/s. Kanishka Kapoor @ Nikki and Anr **
6. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
POINTS
1. Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence punishable under Section.138 Negotiable Instruments Act?
2. What order?JUDGEMENT 6 C.C.4854/2016
7. My answers to the above points are as follows:
Point No.1: In the Negative
Point No.2: As per the final order,
for the following.
:: REASONS ::
8. POINT NO.1: As the accused did not pleaded
guilty, the complainant has chosen to examine himself as PW.1 and got marked documents as Ex.P1 to P20.
As per the decision reported in ILR 2008 KAR PAGE- 4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex court in AIR-2008 SC-1325 between Krishna Janardhan Bhat V/s Dattatreya G. Hegde, in order to attract Sec.138 of Negotiable Instruments Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally JUDGEMENT 7 C.C.4854/2016 enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
9. Keeping in view the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P1 is the GPA executed by the complainant infavour of her son i.e., PW.1.
(b) Ex.P2 to 4 are the demand promissory notes and consideration receipts. Ex.P5 and 6 are the cheques i.e., cheque bearing No.000159 for Rs.10,00,000/- and cheque bearing No.000160 for Rs.5,00,000/- both dated: 31-12-
2015, both are drawn on the Karur Vysya Bank Ltd., No.13/2, Ashraff Commercial Complex, J.C. Road, Bangalore-560002. As per the say of the complainant, Ex.P5(a) and P6(a) are the signatures of the accused.
(c) Ex.P7 and 8 are the endorsements and Ex.P9 and 10 are the Bank endorsements issued by the Bank JUDGEMENT 8 C.C.4854/2016 authorities, dated: 01-01-2016 for having dishonour of the cheques for the reason 'Funds Insufficient'.
(d) Ex.P11 is copy of the legal notice dated: 01-01-2016, which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheques amount by issuing notice against him which is within 30 days.
(e) Ex.P12 is the postal acknowledgment card, it shows that notice was sent against the accused under RPAD.
10. On perusal of the entire materials on record, it shows that the complainant has maintained the complaint against the accused alleging that the accused by borrowing loan of Rs.15,00,000/- from her on 16-02-2015 on execution of on demand promissory notes and consideration receipts, had agreed to repay the said loan amount with interest at the rate of 2% p.a., had given the disputed cheque in her favour towards discharge of the said debt or liability on persistent demands and those cheques were returned unpaid for the reason 'Funds Insufficient' on their JUDGEMENT 9 C.C.4854/2016 presentation for encashment by the complainant through her banker. Despite of issuance of demand notice against the accused and its due service on him, since the accused did not come forward to pay the amount covered under the cheques, she maintained this complaint in time.
11. Per-contra, on reading the line of cross-examination, it shows that he has disputed the very acquaintance of him with the complainant stating that the complainant never seen him and there is no any acquaintance in between himself and the complainant. He also denied with regard to the loan transaction in between himself and the complainant by stating that he never borrowed any loan from the complainant and he never issued these disputed cheques infavour of the complainant towards discharge of any debt or liability. On the other hand, he has taken up the defence that there was monitory transaction in between the husband of the complainant i.e., GPA Holder of the complainant and himself and he had borrowed a sum of Rs.50,000/- during the year 2015 from the GPA Holder of the complainant i.e., from the husband of the complainant, JUDGEMENT 10 C.C.4854/2016 on that time, the husband of the complainant had obtained his two signed blank cheques and his signatures to blank pro-notes and consideration receipts. Thereafter, though he has repaid the said loan amount of Rs.50,000/- to the complainant, but he by misusing his security cheques and pro-notes in collusion with this complainant, got filed this complaint against him, though there is no any loan transaction in between himself and the complainant.
12. Thus, there is no dispute so as to the fact that Ex.P5 and P6 cheques are belongs to the bank account of the accused and Ex.P5(a) and P6(a) are his signatures.
13. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE- 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of Negotiable Instruments (cheque in question) is admitted as well as proved.
JUDGEMENT 11 C.C.4854/2016
14. In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption under Section.139 of Negotiable Instruments Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration.
15. Having admitted the fact that Ex.P5 and P6 cheques are belongs to the bank account of the accused and Ex.P5(a) and P6(a) are his signatures, presumption arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, the burden is on the accused to rebut the same with probable evidence.
16. To prove the case of the complainant, she examined her husband i.e., her GPA Holder as PW.1. Who deposed his evidence by way of an affidavit and reiterated the averments of the complaint and stated about the loan transaction in between himself and the accused and JUDGEMENT 12 C.C.4854/2016 deposed about lending loan of Rs.15,00,000/- by the complainant infavour of the accused on16-02-2015. He also deposed with regard to the execution of pro-notes and consideration receipts by the accused infavour of the complainant for acknowledging the receipt of the loan amount.
17. To prove his oral evidence, he produced documents like Ex.P2 to P5 along with original pro-notes and consideration receipts. It is the evidence of PW.1 that the signatures found on pro-notes which are marked at Ex.P2(a) to P5(a) are the signatures of the accused, but the accused has denied the very loan transaction in between himself and the complainant and denied the fact of acquaintance with the complainant. When such being the case, burden is on the complainant to prove the fact that there was acquaintance in between the complainant and the accused. Because, without ascertaining the whereabouts of the person, no person would lend loan infavour of any person that too to the tune of Rs.15,00,000/-. Hence, at first instance, the complainant JUDGEMENT 13 C.C.4854/2016 has to prove the fact that there was acquaintance in between the complainant and the accused. But in this regard, complainant has not produced any material evidence placed before this court to prove the factum of acquaintance in between the complainant and the accused. This creates doubt.
18. Further, the accused has denied the very loan transaction in between the complainant and the accused stating that he never borrowed any loan from the complainant and he never executed any documents infavour of the complainant muchless the alleged Ex.P2 to P5 pro-notes and consideration receipts infavour of the complainant and it is also his defence that he did not issued any cheques infavour of the complainant towards discharge of any debt or liability. When such being the case, it is for the complainant to prove the alleged loan transaction in between the complainant and the accused by placing any cogent and necessary evidence beyond shadow of doubt.
JUDGEMENT 14 C.C.4854/2016
19. No doubt, having admitted the fact that the signatures found on Ex.P6 and 7 cheques belongs to his bank account and the signatures found on the said cheques are that of the accused and so also the fact that having admitted the fact that the signatures found on Ex.P2 to P5 pro-notes are the signatures of the accused, presumption arose infavour of the complainant under Section.139 of Negotiable Instruments Act and also under Section.118 of Negotiable Instruments Act that the said pro-note is supported by the consideration and the disputed Ex.P6 and P7 cheques were issued towards discharge of the legally enforceable debt or liability. But those presumptions are rebuttable presumption and the accused is entitle to rebut the said presumption with necessary cogent and convincing evidence by rising the probable defence. That means to say that the accused can prove the non-existence of consideration by raising probable defence. If the accused proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, then the onus would shifted on the complainant JUDGEMENT 15 C.C.4854/2016 who will be obliged to prove it has a matter of fact and upon its failure to prove would disentitle him to grant of relief on the basis of the Negotiable Instruments. The bare denial of passing of consideration apparently does not appeared to be any defence, something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant.
20. In the case on hand, the accused has denied the very loan transaction in between himself and the complainant and also about passing of consideration under the alleged pro-notes and consideration receipts. When such being the case, burden is on the complainant to prove the fact that there was loan transaction in between the complainant and the accused and she must prove the fact that she had lent loan of Rs.15,00,000/- infavour of the acc and the accused by receiving the same, had executed the said documents i.e., Ex.P2 to P5 on demand promissory note and consideration receipt in her favour for acknowledging the receipt of the loan amount. But to prove the said fact except the production of the documents, the complainant JUDGEMENT 16 C.C.4854/2016 has not chosen to examine any independent witnesses to substantiate the fact of said loan transaction. Because, the complainant has not chosen to examine any independent person who allegedly witnessed the said transaction. On the other hand, it is the evidence of PW.1 that at the time of lending loan amount of Rs.15,00,000/- except himself and his wife and the accused, there were no other person present etc. This creates doubt.
21. Because, the amount allegedly advanced infavour of the accused is not a small amount, on the other hand it is huge amount of Rs.15,00,000/-. When such being the case, no person would advance such huge amount of Rs.15,00,000/- infavour of any person without any witnesses. If at all was there any such loan transaction in between the complainant and the accused, she would have advanced such huge amount of Rs.15,00,000/- in presence of any person as witness to the alleged loan transaction. But in the case on hand, though it is the say of the complainant, she had lent loan of Rs.15,00,000/- infavour of the accused, but she did not made any attempt to JUDGEMENT 17 C.C.4854/2016 advance such huge amount of Rs.15,00,000/- infavour of the accused by keeping any person as witness or in the presence of any witness. But as per the evidence of PW.1, there was no any person present at the time of lending loan of Rs.15,00,000/- infavour of the accused. This creates doubt. Further though complainant claimed that the accused had executed the pro-note and consideration receipts in her favour for having receipt of the loan amount. But the complainant not proved the fact of execution of alleged Ex.P2 to P5 pro-note and consideration receipt by examining any person who witnessed the alleged execution of said documents i.e., Ex.P2 to 5 pro-note and consideration receipt. But no persons have been examined before this court. On the other hand, as per the evidence of PW.1 that there were no persons present at the time of alleged loan transaction. Further the said pro-note and consideration receipts not attested by any of the witnesses as no person stated as witness to the alleged Ex.P2 to P5 pro-note and consideration receipt. This also creates doubt with regard to the say of the complainant about passing of consideration infavour of the accused.
JUDGEMENT 18 C.C.4854/2016
22. Because, mere production of the document is not sufficient to come to conclusion that it is proved unless proves the same as per Law. No doubt, there is no any dispute with regard to the signature found on Ex.P2 to P5 documents that those signatures that of the accused. But mere that fact the accused not denied the signatures on Ex.P2 to P5 pro-note and consideration receipt, it cannot be said that the accused has admitted about such execution of Ex.P2 to P5 documents. Because, execution of connotes something more than the basic physical act of signing, even in common parlance, a mere signature on the document would not be treated as executed document in the sense of consciously subscribing to the contents of the documents. The expression "execute" of a document would necessarily connotes the knowledge of the contents of the document at the time when the signature is made on it. If a person executes a document knowing its contents of a document and knowledge of the contents, then he cannot deny his execution. But in the case on hand, it is the defence of the accused that he had given his signed blank cheque and pro-note infavour of the husband of the JUDGEMENT 19 C.C.4854/2016 complainant in connection to the alleged loan transaction of Rs.50,000/-. So barely signing the document did not amount as an admission of execution. That means to say that the signature on the document would not amounts to execute on pro-note and consideration receipt. So, the complainant has to prove the fact of execution of Ex.P2 to P5 documents i.e., pro-note and consideration receipt, that they were executed by the accused only by proving the fact that the accused had affixed his signatures on those documents consciously knowing the contents of the said documents i.e., Ex.P2 to P5. But in the case on hand, the complainant has not proved the fact of such execution of the said documents i.e., Ex.P2 to P5 pro-note and consideration receipt by the accused and affixture of the signatures by the accused with due knowledge of the said contents of the document by examining any person before this court who allegedly witnessed the execution of Ex.P2 to P5 documents by the accused for having borrowed alleged loan of Rs.15,00,000/-. This creates doubt about the passing of consideration under Ex.P2 to P5 documents to the accused. This circumstance is sufficient to rebut the JUDGEMENT 20 C.C.4854/2016 presumption under Section.118 of Negotiable Instruments Act.
23. Further the accused has questioned the very passing of consideration of Rs.15,00,000/- by the complainant in his favour under alleged pro-notes and consideration receipts by questioning the monitory capacity of the complainant, contending that the complainant has no such monitory capacity to lend loan of Rs.15,00,000/- infavour of the accused. Though PW.1 in his evidence deposed that the father of the complainant had given the amount by selling away the property of the mother of the complainant and the complainant had obtained her share of amount out of that property and the said amount was with her and out of that amount, she had advanced the loan infavour of the accused etc. But to substantiate the said fact of payment of the said amount by the father of the complainant by selling away the property belongs to the mother of the complainant infavour of the complainant, he did not produced any documents before this court and there is no any evidence to show that she had that much of amount JUDGEMENT 21 C.C.4854/2016 with her on that particular date to lend the same infavour of the accused.
24. Though at one stretch, the complainant made an attempt to say that she had withdrawn some amount from the bank and by arranging remaining amount which was in the house, had paid a sum of Rs.15,00,000/- infavour of the accused etc. But to substantiate the fact that she had withdrawn the amount from the bank, the complainant not produced any documents before this court. Further PW.1 not stated before this court that how much amount was withdrawn by the complainant from the bank and how much amount was with the complainant at his house in order to give the said loan infavour of the accused. This creates doubt.
25. Further PW.1 has not stated about the source of amount which was allegedly in the house. Thus, the complainant has not produced any iota of evidence to show the factum of arrangement of funds of Rs.15,00,000/- in order to advance the same infavour of the complainant. This creates doubt with regard to the very monitory JUDGEMENT 22 C.C.4854/2016 capacity of the complainant in lending loan of Rs.15,00,000/- infavour of the accused. This creates doubt with regard to the passing of consideration under the alleged pro-notes. Because, when the complainant has failed to prove the fact of arrangement of funds of Rs.15,00,000/- and about her monitory capacity to lend loan to the tune of Rs.15,00,000/- by placing any cogent and documentary evidence, doubt created with regard to the payment of the said loan amount infavour of the accused and about execution of pro-notes by the accused for having acknowledgment of receipt of the loan amount. This creates doubt with regard to the passing of consideration under the alleged pro-note to the accused. When such being the case, the say of the accused that she had lent loan of Rs.15,00,000/- infavour of the accused and the accused had executed pro-notes and consideration receipts in her favour for having receipt of the loan amount etc., is not acceptable and convincing one.
26. This circumstance is sufficient to rebut the presumption which arose under Section.118 of Negotiable JUDGEMENT 23 C.C.4854/2016 Instruments Act, since he has produced some evidence before this court to show that there was no any passing of consideration.
27. When the complainant has failed to prove the factum of loan transaction in between herself and the accused and about lending loan of Rs.15,00,000/- infavour of the accused by placing some material evidence before this court to prove her monitory capacity and source of arrangement of funds, the say of the accused with regard to the issuance of this disputed cheques by the accused in her favour towards discharge of the alleged debt of Rs.15,00,000/- is also doubtful. This circumstance is sufficient to rebut the presumption which arose infavour of the complainant under Section.139 of Negotiable Instruments Act.
28. Hence, onus shifted on the shoulder of the complainant to prove the factum of alleged loan transaction in between the complainant and the accused. But the complainant not produced any iota of evidence to prove the JUDGEMENT 24 C.C.4854/2016 fact either lending loan of Rs.15,00,000/- infavour of the accused by proving the monitory capacity and source of arrangement of funds or proved the fact of execution of pro-note by the complainant for having receipt of the loan amount. Hence, this court is of the opinion that the complainant is utterly failed to prove the very essential ingredients of Section.138 of Negotiable Instruments Act i.e., existence of legally enforceable debt or liability in between the complainant and the accused.
29. No doubt, there is some suggestion of the accused to the PW.1 during his cross-examination that apart from the transaction of Rs.15,00,000/-, was there any other transaction on 16-02-2015. With this complainant made an attempt to say that the very suggestion of the accused to PW.1 reflects the fact of alleged loan transaction in between the complainant and the accused to the tune of Rs.15,00,000/- and as there was loan transaction of Rs.15,00,000/- in between the complainant and the accused on 16-02-2015, the accused counsel has made such suggestion to PW.1 etc. JUDGEMENT 25 C.C.4854/2016
30. But on careful reading of the entire evidence of the PW.1, the said suggestion of the accused apart from the transaction of Rs.15,00,000/- was there any transaction on 16-02-2015 cannot be taken as an admission of the accused with regard to the alleged loan transaction of Rs.15,00,000/- in between the complainant and the accused. On the other it is a just question to PW.1 to elicit some evidence from the mouth of PW.1 that whether was there any other transaction on that particular date i.e., on 16-02-2015. Because, it is the defence of the accused that there was one more transaction in between PW.1 and himself with regard to the property and there was sale agreement transaction in between the husband of the complainant and the accused. Since there was transaction of sale agreement also on 16-02-2015 between the husband of the complainant i.e., PW.1, the accused counsel has given such suggestion to the PW.1. Hence, the said suggestion cannot be treated as an admission with regard to the alleged loan transaction in between the complainant and the accused, unless the complainant proves the said factum of existence of loan transaction in JUDGEMENT 26 C.C.4854/2016 between herself and the accused by placing any cogent and documentary evidence.
31. But as aforesaid, the complainant has not produced any iota of evidence to prove the factum of alleged loan transaction in between her and the accused. When the complainant has failed to prove the factum of loan transaction in between her and the accused, the say of the complainant with regard to the issuance of disputed cheques in her favour towards discharge of debt or liability is also not acceptable and convincing one.
32. On the other hand it shows that the complainant has gained possession of the disputed cheques obtained in different circumstances, then the accused cannot be held liable for the conviction for the offence punishable under Section.138 of Negotiable Instruments Act.
33. Because, it is very defence of the accused that there was monitory transaction in between the husband of the complainant i.e., PW.1 and himself and he had borrowed a JUDGEMENT 27 C.C.4854/2016 sum of Rs.50,000/- from the complainant during the year 2015 and on that time the husband of the complainant had collected his two signed blank cheques along with signed blank pro-notes and consideration receipts and though he had discharged the said debt, the husband of the complainant without returning those security documents, but by misusing those documents and by creating the documents as pro-notes and consideration receipts and also the cheques got filed this false complaint through this complainant.
34. No doubt the accused has not proved the said defence on furnishing his signed blank cheque and pro- notes infavour of the complainant in connection to the alleged loan transaction of Rs.50,000/- by placing any material evidence. But mere that fact, it cannot be said that the complainant has proved the transaction in between the herself and the accused i.e., about lending loan of Rs.15,00,000/-, unless she proves the same by placing cogent and documentary evidence. JUDGEMENT 28 C.C.4854/2016
35. On the other hand, as per the version of the PW.1, there was monitory transaction in between herself and the accused, since he only has deposed that he had advanced a sum of Rs.25,000/- infavour of the accused on previous occasions i.e., at about 15 years back. But it is the say of the accused that the complainant had advanced a sum of Rs.50,000/- in his favour during the year 2015. To substantiate the said fact, he has produced pass book which is not marked as an exhibit stating that there was relevant entry with regard to the deposit of Rs.50,000/- by this complainant to his bank account. Though the said transaction is not proved by the accused by placing any evidence before this court, but it is admitted the fact that there was monitory transaction in between the PW.1 and the accused. This probablise the defence of the accused that complainant might have taken signed blank cheque and pro-notes of the accused as security in connection to the loan allegedly advanced infavour of the accused. This probablise the defence of the accused that his cheques and pro-notes were taken by the husband of the complainant as security and they were misused through his JUDGEMENT 29 C.C.4854/2016 complainant. Even otherwise, as aforesaid discussion, the complainant has not proved the factum of lending loan of Rs.15,00,000/- infavour of the accused by placing any material and cogent evidence before this court. Hence, I am of the opinion that the complainant has gained possession of the disputed cheques and pro-notes in some other circumstances and not in respect to the alleged loan transaction in question. Therefore, the accused is not liable for conviction.
36. Hence, the presumption on the existence of above noted the fact that Ex.P6 and 7 cheques were issued to the complainant to discharge of existed liability has been rebutted through sufficient evidence. Hence, onus shifted on the shoulder of the complainant, to prove the fact that there was existence of debt or liability in between the complainant and the accused and to prove the fact of advancement of alleged loan of Rs.15,00,000/- infavour of the accused by placing necessary evidence with regard to loan transaction beyond reasonable doubt. But as aforesaid discussion, the complainant failed to prove the JUDGEMENT 30 C.C.4854/2016 fact of lending loan of Rs.15,00,000/- infavour of the accused by placing any cogent and convincing evidence. Hence, with all these reasons, I am of the opinion that the complainant utterly failed to prove the guilt of the accused beyond reasonable doubt for the offence punishable under Section.138 of Negotiable Instruments Act. Hence, I answered Point No.1 in the Negative.
37. POINT NO.2: In view of my discussions on Point No.1 as above, I proceed to pass the following:
ORDER Acting under Section.255(1) Cr.P.C., the accused is acquitted for the offence punishable under Section.138 of Negotiable Instruments Act.
The accused is set at liberty and his bail bond stands cancelled.
(Dictated to the stenographer and transcribed by him, corrected and then pronounced in open court by me on this the 23rd day of March-2018.) (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.JUDGEMENT 31 C.C.4854/2016
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : K.R. Ashok Kumar Documents marked on behalf of the complainant:
Ex.P1 : GPA
Ex.P2to5 : C/c.Pro-notes and Consideration Receipts
Ex.P6&7 : C/c. Cheques
Ex.P8&9 : C/c. Endorsement
Ex.P10 : C/c. Bank Endorsement
Ex.P11 : C/c. Legal Notice
Ex.P12 : C/c. Postal acknowledgment Card
Ex.P13 : Complaint
Ex.P14&15: Original Pro-notes and Consideration
Receipts
Ex.P16&17 : Original Cheques
Ex.P18 : Original Bank Endorsement
Ex.P19 : Original Legal Notice
Ex.P20 : Original Postal acknowledgment Card
Witnesses examined on behalf of the accused:
- None -
Documents marked on behalf of the accused:
- Nil -
(C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.
(Note: Due to oversight, there was some mistakes at the time of marking the documents. The documents like GPA, C/c. Pro-notes and Consideration Receipts, C/c. Cheques, C/c. Endorsement, C/c. Bank Endorsement, C/c. Legal Notice, C/c. Postal acknowledgment Card and Complaint and Original Pro-notes and Consideration Receipts, Original Cheques, Original Bank Endorsement, Original Legal Notice and Original Postal acknowledgment Card were marked as Ex.P1 to P19 instead of Ex.P1 to P20.)