Bangalore District Court
Smt. Mani Krishnaswamy vs Sri. B.V. Dwarakanath on 21 June, 2021
1
C.C.No. 11119/16 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 21st day of June, 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.11119/2016
Complainant : Smt. Mani Krishnaswamy,
W/o. Late D.R.Krishnaswamy,
Aged about 75 years,
residing at No.12371,
Saratoga Creek Drive,
Saratoga, C.A. 95070 USA,
(Since deceased represented by her
Legal Representatives)
1(a) Shri.Satyanarayana Simha,
Aged about 56 years,
S/o. Late D.R. Krishnaswamy,
Residing at No.12371,
Saratoga Creek Drive
Saratoga, C A, 95070, USA.
1(b) Shri.Arun Krishnaswamy
Simha,
Aged about 55 years,
S/o. Late D.R. Krishnaswamy,
Residing at No.1590,
Elwood Drive,
Las Gatos, C A 95032, USA.
2
C.C.No. 11119/16 J
Both LR's represented by their SPA
Holder,
Shri. Manjunath C.K,
Aged about 35 years,
S/o. Shri.R. Krishnappa,
Residing at No.4, Jyothi Nilaya,
4th Cross, Chowdaiah Block,
R.T. Nagar,
Bengaluru 560 032.
(By Sri. Dhananjay Joshi
Associates., Advs.)
Vs
Accused : 1. Sri. B.V. Dwarakanath,
S/o. Late B.S.Vishveshwara
Shastry,
Aged about 56 years,
No.10, 4th Cross,
Shankarapuram,
Bangalore 560 004.
2. Sri. M.S.Amarnath,
S/o. M.R. Sreeramaiah Setty,
Aged about 51 years,
No.100, 13th Cross,
2nd Phase, JP Nagar,
Bangalore 560 078.
3. Sri.P. Madhusudhan,
S/o. P. Govindappa,
Aged about 46 years,
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C.C.No. 11119/16 J
No.211, 3rd Main,
Ramanjaneya Nagar,
Chikkallasandrda,
Bangalore 560 061.
4. Sri. Gururaj,
S/o. Late Hanumanthachar,
Aged about 45 years,
No.25/35, DVG Road,
Basavanagudi,
Bangalore 560 004.
5. Sri.G.S. Srinivas,
S/o. R. Subba Rao,
Aged about 45 years,
No.42, 7th Cross,
Srinivasnagar 2nd Stage,
Bangalore 560 050.
(Proceedings against accused
No.2 to 5 dropped, vide order
dt: 20.01.2017)
(By Sri. Gandhi Law Chambers.,
Adv .,)
Case instituted : 28.4.2016
Offence : U/s 138 of N.I Act
complained of
Plea of Accused : Pleaded not guilty
Final Order : Accused No.1 is acquitted
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C.C.No. 11119/16 J
Date of order : 21.06.2021
JUDGMENT
The SPA holder of the Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the complainant and her sons were owner of a property bearing site No.12, situated at 4 th Cross, Shankarapuram, Bangalore and the accused No.1 is the Founder Chairman of the Sree Charan Souhardha Cooperative Bank Limited and accused No.2 to 5 are his nominees and associates and in the month of June 2015 the accused No.1 approached the complainant to purchase the above stated site and the complainant agreed to sell the said site for a total sale consideration of Rs.9,12,00,000/ (Rupees Nine Crores Twelve Lakhs only), accordingly on 19.08.2015 the accused No.1 got his nominee ie., accused Nos.3 and 5, to enter into an Agreement of Sale with the complainant, in which it was agreed 5 C.C.No. 11119/16 J that, the said site will be sold for a total sale consideration of Rs.9,12,00,000/, the agreement also provided that the complainant will try and close the compound wall on the southern side and even if any person raised any objection thereto, the sale transaction will be completed within four months from 19.08.2015, but a sum of Rs.38,00,000/ (Rupees thirty Eight Lakhs) may be withheld from the complainant until such objection is resolved.
3. It is further contended that, as the complainant resides out of India and found difficult to get anyone to do the work of closing the compound wall on the Southern side of her site, since the accused persons remained keen to purchase the site and they agreed to take on the work upon themselves but induced the complainant to agree to a sum of Rs.95,00,000/ being withheld for a period of three months on the specific assurance that, the accused shall not delay the payment of the balance sale consideration beyond the period of three months regardless of whether they succeeded in resolving the issue or not, accordingly complainant 6 C.C.No. 11119/16 J and her children executed four sale deeds drawn up by the accused No.1 in favour of each of the accused ie. 1) sale deed dt:21.11.2015, registered as Doc.No. 5125/201516, executed in favour of the accused No.2, in respect of a portion of the said site, under which she received Rs.2,23,00,000/ as part of sale consideration; 2) sale deed dt:21.11.2015, registered as Doc.No. 5126/201516, executed in favour of the accused No.3, in respect of a portion of the said site, under which she received Rs.2,17,00,000/ as part of sale consideration; 3) sale deed dt:21.11.2015, registered as Doc.No.5129/201516, executed in favour of the accused No.4, in respect of a portion of the said site, under which she received Rs.2,09,00,000/ as part of sale consideration 4) sale deed dt:21.11.2015, registered as Doc.No. 5130/201516, executed in favour of the accused No.1 and 5, in respect of a portion of the said site, under which she received Rs.1,68,00,000/ as part of sale consideration, in this manner, the complainant received an agreegate amount of Rs.8,17,00,000/ on 21.11.2015 and as regards the balance sale consideration of Rs.95,00,000/ on the same day ie 7 C.C.No. 11119/16 J 21.11.2015 the accused persons executed an Agreement infavour of the complainant, agreeing to close the gap in the compound wall on the southern side on their own and regardless of whether they succeeded or not, the payment of Rs.95,00,000/ shall be made on 21.2.2016. The complainant further contends that, she had insisted on the above understanding to be set out in the sale deeds and for the post dated cheques to be mentioned therein, the accused no.1 persuaded her to receive the post dated cheques under a separate agreement.
4. The complainant further contended that, immediately after the registration of the aforesaid sale deeds together with the demand drafts and issued the cheques ie., 1) cheque bearing No.093323, dt: 21.2.2016, for sum of Rs.19,00,000/ drawn on Sree Charan Souhardha Cooperative Bank Limited;
2) cheque bearing No.093324, dt: 21.2.2016, for sum of Rs.19,00,000/ drawn on Sree Charan Soudhardha Cooperative Bank Limited, 3) cheque bearing No.093325, dt: 21.2.2016, for sum of Rs.19,00,000/ drawn on Sree Charan Soudhardha 8 C.C.No. 11119/16 J Cooperative Bank Limited, 4) cheque bearing No.093326, dt:21.2.2016, for sum of Rs.19,00,000/ drawn on Sree Charan Soudhardha Cooperative Bank Limited, 5) cheque bearing No.093327, dt:
21.2.2016, for sum of Rs.19,00,000/ drawn on Sree Charan Soudhardha Cooperative Bank Limited, and all the cheques were presented for encashment but on 1.3.2016 all the five cheques were came to be returned unpaid with an endorsement of "Payment Stopped by Drawer" and her advocate letter ie. legal notice dt:23.03.2016 issued to the accused calling upon the accused to pay the aggregate sum of Rs.95,00,000/ (Ninety Five Lakhs only) within fifteen days of the receipt of the notice and her advocate made a typographical mistake in the legal notice stating that, the amount of each cheque was Rs.95,00,000/ while it should have been written that, the amount of each cheque was Rs.19,00,000/ aggregating to Rs.95,00,000/, in fact in the legal notice the accused No.1 admits that, he issued the said cheques, although he claims that, it was for a different purpose and the legal notice sent to the accused Nos.1, 4 and 5 were returned unserved with 9 C.C.No. 11119/16 J an endorsement "Unclaimed" and the legal notice was duly served on the accused No.2 and 3, and the accused No.1 replied to the legal notice by a letter dt: 07.04.2016 and none of the other accused replied to her legal notice dt: 23.03.2016. Hence she has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
5. Before issuing process against the accused, the SPA holder of 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 ie., P.W.1 has relied upon the documentary evidence as per Ex.C.1 to C.33 i.e, Special Power of Attorney as per Ex.C.1, Original Cheques dated: 21.02.2016 is as per Ex.C.2 to. C.6 respectively, the signatures on the said cheques identified by P.W.1 are those of the accused as per Ex.C.2(a) to C.6(a) respectively, the Bank Memos as per Ex.C.7 to C.11 respectively, the office copy of Legal Notice as per Ex.C.12, returned legal notices as per Ex.C.13 to C.15 respectively, three postal 10 C.C.No. 11119/16 J envelopes as per Ex.C.16 to C.18 respectively, three postal receipts as per Ex.C.19 to C.21 respectively, three postal acknoweldgements as per Ex.C.22 to C.24 respectively, two postal acknowledgements as per Ex.C.25 and C.26 respectively,five postal receipts as per Ex.C.27 to C.31 respectively, Reply notice given by 1st accused as per Ex.C.32, postal envelope as per Ex.C.33 and during the course of trial the SPA holder of the complainant I.e PW.1 has produced certified copy of the sale agreement dt: 19.8.2015 as per Ex.C.34, certified copies of the Sale deeds dt:21.11.2015 as per Ex.C.35 to C.38 respectively, certified copy of the Sale agreement dt: 21.11.2015 as per Ex.C.39, certified copy of the SPA dt:
27.12.2019 as per Ex.C.40.
6. Earlier on the basis of sworn statement affidavit of PW.1 and documents produced by the PW.1 I.e Ex.C. 1 to C.33 this court has formed an opinion that, primafacie case has been made out against the accused No.1 to 5 and summons were issued against them in turn they appeared before the court and got enlarged on bail. Thereafter the 11 C.C.No. 11119/16 J accused No.2 to 5 have filed an application U/s. 239 of Cr.P.C on 23.07.2016 to discharge them from the proceedings and the said application was opposed by the complainant by filing objections and thereafter hearing the said application by both sides it was was came to be allowed on 20.01.2017 by construing the same as one filed U/s. 258 of Cr.P.C. and the order of issuance of process against the accused No.2 to 5 was recalled and consequently the proceedings against the accused No.2 to 5 dropped and the complainant was directed to proceed only as against the accused No.1. Thereafter the substance of the accusation has been read over to the accused No.1, to which he pleaded not guilty and claims to be tried.
7. Thereafter, case was posted for cross examination of the complainant and after closure of the evidence of the complainant, case was posted for recording of the statement of the accused as required under Sec.313 of the Cr.P.C, accordingly statement of the accused has been recorded. He has denied the incriminating evidence appearing against him and 12 C.C.No. 11119/16 J has not chosen to lead his rebuttal evidence. However has filed his Addl. Written statement along with the documents and the Additional written statement of the accused were received and taken on record but the documents produced by the accused are received subject to proof of evidentiary value of the said documents in accordance with law and case was posted for arguments.
8. Heard by learned counsel for the complainant and the Accused and perused the written arguments submitted by both sides and the learned counsel for the complainant has relied the decisions in support of his argument ie., 1) ILR 2006 Kar 3129 Bhimappa and Others Vs. Allisab, 2) 2013 SCC Karnataka 1649 - Bhagyamma Vs R.Lokesh & Others, 3) (2001) 6 SCC 16 - Hitel P. Dalal Vs. Bratindranath Banerjee 4) (2019) 4 SCC 197 - Birsingh Vs. Mukesh Kumar; 5) 2013 SCC Del 4416 Ambica Plastopack Pvt Ltd., & anr., Vs. State & anr.
The learned counsel for the accused has relied 13 C.C.No. 11119/16 J upon the decisions in support of his argument ie., (2007) 5 SCC 264 Kamala S Vs., Vidhyadharan M.J and another. 2) (2014) 11 SCC 790 - A.C. Narayanan Vs. State of Maharashtra and another 3) (2010) 10 SCC 512 - man Kaur (Dead) by Lrs Vs. Hartar Singh Sangha; 4) (1999) 3 SCC 573 - Vidhyadhar Vs. Manikrao and another.
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 four cheques ie., 1) cheque bearing No.093323 dt:
21.2.2016 for Rs.19,00,000/
2) cheque bearing No.093324 dt:
21.2.2016 for Rs.19,00,000/
3) cheque bearing No. 093325 dt:
21.2.2016 for Rs.19,00,000/
4) cheque bearing No. 093326
dt:21.2.2016 for Rs.19,00,000/
5) cheque bearing No.093327
dt:21.2.2016 for Rs.19,00,000/, all the cheques were drawn on Sree Charan Souhardha Cooperative Bank Limited, Gandhi Bazar 14 C.C.No. 11119/16 J Branch, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented cheques for encashment through her banker but the said cheques have been dishonoured for the reasons "Payment Stopped by Drawer" on 01.03.2016 and the complainant issued legal notice to the accused on 23.03.2016 and inspite of it the accused has not paid the cheques amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
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 15 C.C.No. 11119/16 J 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 presupposes conditions for prosecution of an offence which are as under:
1. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
2. Cheque shall be presented for payment within specified time i.e., from the date of issue before expiry of its validity.
3. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of 16 C.C.No. 11119/16 J information of the bounced cheque and
4. 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 conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer in respect of 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 ingredient of Sec. 138 of N.I.Act that, a cheque in question must 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 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 17 C.C.No. 11119/16 J 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. It is the specific claim of the complainant that, she and her sons were the owners of the site bearing No.12, situated at 4th Cross, Shankarapuram, Bangalore and accused No.1 is the founder Chairman of Sree Charana Souhardha Co operative Bank Ltd., and accused No.2 to 5 are his nominees and associates, the accused No.1 approached her in the month of June 2015 and requested to purchase the site for that, the complainant agreed to sell the said site for total sale consideration of Rs. 9,12,00,000/, accordingly on 19.08.2015 the accused No.1 got his nominees, the accused No.3 and 5 to enter into agreement of sale with her in which it was agreed that the said site will be sold for total sale consideration of 18 C.C.No. 11119/16 J Rs.9,12,00,000/ and the agreement also provided that, the complainant will try and close the compound wall on southern side and that, even if any person raised objections thereto, the sale transaction will be completed within 4 months from 19.08.2015 but a sum of Rs. 38,00,000/ may be withheld from the complainant until such objection is resolved. It is also the specific claim of the complainant that, as she resides out of India and found difficult to get any one to do the work of closing the compound wall on south side of her site and since the accused persons remained keen to purchase the site, they agreed to take on the work upon themselves but induced her to agree to a sum of Rs.95,00,000/ being withheld for a period of 3 months on the specific assurance that, the accused shall not delay the payment of balance sale consideration beyond the period of three months regardless of whether they succeeded in resolving the issue or not, therefore she and her children executed four sale deeds drew up by the accused No.1 in favour of the accused No. 1 to 5 ie., 1) sale deed dt:21.11.2015, registered as Doc.No. 5125/201516, 19 C.C.No. 11119/16 J executed in favour of the accused No.2, in respect of a portion of the said site, under which she received Rs.2,23,00,000/ as part of sale consideration; 2) sale deed dt:21.11.2015, registered as Doc.No. 5126/201516, executed in favour of the accused No.3, in respect of a portion of the said site, under which she received Rs.2,17,00,000/ as part of sale consideration; 3) sale deed dt:21.11.2015, registered as Doc.No.5129/201516, executed in favour of the accused No.4, in respect of a portion of the said site, under which she received Rs.2,09,00,000/ as part of sale consideration 4) sale deed dt:21.11.2015, registered as Doc.No. 5130/201516, executed in favour of the accused No.1 and 5, in respect of a portion of the said site, under which she received Rs.1,68,00,000/ as part of sale consideration, in this manner, the complainant received an agreegate amount of Rs.8,17,00,000/ on 21.11.2015 and as regards the balance sale consideration of Rs.95,00,000/ on the same day ie 21.11.2015 the accused persons executed an Agreement infavour of the complainant, agreeing to close the gap in the compound wall on the southern side on their own 20 C.C.No. 11119/16 J and regardless of whether they succeeded or not, the payment of Rs.95,00,000/ shall be made on 21.2.2016, although she had insisted the above understanding to be set out in the sale deeds and also about the post dated cheques to be mentioned therein but the accused no.1 persuaded her to receive the post dated cheques under a separate agreement, immediately after the registration of the aforesaid sale deeds together with the demand drafts and also issued the cheques in question Ex.C.2 to C.6 ie., 1) cheque bearing No.093323, dt: 21.2.2016, for sum of Rs.19,00,000/; 2) cheque bearing No.093324, dt: 21.2.2016, for sum of Rs.19,00,000/
3) cheque bearing No.093325, dt: 21.2.2016, for sum of Rs.19,00,000/ 4) cheque bearing No.093326, dt:21.2.2016, for sum of Rs.19,00,000/ 5) cheque bearing No.093327, dt: 21.2.2016, for sum of Rs.19,00,000/ all the above cheques were drawn on Sree Charan Soudhardha Cooperative Bank Limited, towards balance sale consideration amount. It is also contended that, the said cheques were presented for encashment but on 1.3.2016 all the five cheques were came to be returned unpaid with an 21 C.C.No. 11119/16 J endorsement of "Payment Stopped by Drawer" and thereafter a legal notice dt:23.03.2016 was issued to the accused calling upon them to pay the aggregate sum of Rs.95,00,000/ (Ninety Five Lakhs only) within fifteen days of the receipt of the notice and her advocate made a typographical mistake in the legal notice stating that, the amount of each cheque was Rs.95,00,000/ while it should have been written that, the amount of each cheque was Rs.19,00,000/ aggregating to Rs.95,00,000/, in fact in the reply notice the accused No.1 admits that, he issued the said cheques, although he claims that, it was for a different purpose and the legal notice sent to the accused Nos.1, 4 and 5 were returned unserved with an endorsement "Unclaimed" and the legal notice was duly served on the accused No.2 and 3, and the accused No.1 replied to the legal notice by a letter dt: 07.04.2016 by denying his liability and none of the other accused replied to her legal notice dt:
23.03.2016, hence the complainant presented this complaint through her SPA holder.
14. The SPA holder of the complainant filed his 22 C.C.No. 11119/16 J affidavit in lieu of sworn statement and examined as PW.1 and has produced the documents i.e Ex.C. 1 to C.33 i.e, Special Power of Attorney executed by deceased complainant as per Ex.C.1, Original Cheques dated: 21.02.2016 is as per Ex.C.2 to. C.6 respectively, the signatures on the said cheques identified by P.W.1 are those of the accused No.1 as per Ex.C.2(a) to C.6(a) respectively, the Bank Memos as per Ex.C.7 to C.11 respectively, the office copy of Legal Notice as per Ex.C.12, returned legal notices as per Ex.C.13 to C.15 respectively, three postal envelopes as per Ex.C.16 to C.18 respectively, three postal receipts as per Ex.C.19 to C.21 respectively, three postal acknowledgements as per Ex.C.22 to C.24 respectively, two postal acknowledgements as per Ex.C.25 and C.26 respectively, five postal receipts as per Ex.C.27 to C.31 respectively, Reply notice given by 1st accused as per Ex.C.32, postal envelope as per Ex.C.33. After recording the sworn statement of the PW1 at the first instance considering the sworn statement of PW.1 and documents ie Ex.C.1 to C.33, this court took cognizance and issued process / summons against 23 C.C.No. 11119/16 J the accused No.1 to 5, in turn the said accused No.1 to 5 appeared before the court and got enlarged on bail. Thereafter the accused No.2 to 5 have filed an application U/s.239 of Cr.P.C on 23.07.2016 for their discharge from the proceedings and the said application was opposed by the complainant by filing objections and thereafter on hearing the said application by both sides it was came to be allowed by this court vide order dt:20.01.2017 and ordered that, by construing the application filed by the accused No.2 to 5 as one filed U/s.258 of Cr.P.C.
and the order of issuance of process against the accused No.2 to 5 was recalled and consequently the proceedings against the accused No.2 to 5 were dropped and the complainant was directed to proceed only as against the accused No.1. The said order was not setaside by the Hon'ble Appellate Court, hence the order passed by this court dt:
20.01.2017 attains its finality. Hence, the complainant proceeded against the accused No.1 only.
15. Thereafter the S.P.A. holder of the 24 C.C.No. 11119/16 J complainant/PW1, during the course of trial has produced additional documents i.e., certified copy of the sale agreement dt: 19.8.2015 as per Ex.C.34, certified copies of the registered Sale deeds dt:21.11.2015 as per Ex.C.35 to C.38 respectively, certified copy of the Agreement dt: 21.11.2015 as per Ex.C.39, certified copy of the SPA dt: 27.12.2019 executed by the children of the original complainant as per Ex.C.40 and closed his side.
16. On the other hand, the accused No.1 in his defence has admitted that, the cheques in question i.e Ex.C.2 to Ex.C.6 belonging to his account and signatures found at Ex.C.2(a) to C.6(a) are those of his signatures. The accused has also not disputed the presentations of the cheques in question to his bank and the said cheques were returned dishonoured for the reason of "Payment stopped by Drawer" as per Ex.C.7 to C.11, hence as matter on record and admitted facts by the accused it can be held that, the cheques in question ie Ex.C.2 to C.6 have been presented to the bank within their validity periods and same were dishonoured for the reason 25 C.C.No. 11119/16 J shown in Ex.C.7 to C.11. The accused has also issued reply to the legal notice issued by the complainant dt: 23.03.2016 as per Ex.C.32, hence it goes to show that, the accused has also admitted the issuance of legal notice by the complainant as per Ex.C.12 within 30 days from the date of receipt of the bank memo, hence the complainant has complied mandatory requirements as required U/s.138(a) to (c) of Negotiable Instrument Act.
17. Though, the accused No.1 has admitted the cheques in question belongs to his account and signatures found on the cheques in dispute were those of his signatures but has disputed the liability as claimed by the complainant in his complaint and also evidence ie., the cheques in question Ex.C.2 to C.6 were not issued towards the discharge of the liability as claimed by the complainant. It is also the specific defence of the accused in this reply i.e Ex.C.32 that, the complainant agreed to get the wall constructed through out from East o West on southern boundary for which the complainant demanded security for that, the cheques in question 26 C.C.No. 11119/16 J were issued as security not for any payment or debt and there is no balance due towards sale price of the sale deeds and no debt or liability due by him and the agreement in question is created one. It is settled law that, once the issuance of cheque in favour of holder in due course is admitted by the drawer, presumption can be drawn about the existence of the legally recoverable debt U/s.139 of N.I.Act, terms in favour of the holder in due course. However, the Hon'ble apex Court of India in Rangappa Vs. Mohan Case reported in 2010 (11) SCC 441 has 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". In the present case, it has to be examined as to whether the accused has rebutted the presumptions successfully or not, by examining the oral and documentary evidence adduced by the parties in this case.
18. It is relevant to mention that, the careful perusal of the claim of the complainant in her 27 C.C.No. 11119/16 J complaint and evidence of PW.1 it appears that, according to complainant, the accused No.1 and other persons have agreed to purchase the site property of the complainant for total sale consideration of Rs.9,12,00,000/, accordingly on 19.8.2015 the accused got his nominees ie., earlier arraigned as accuse No.3 and 5 to enter into agreement of sale with her on 19.08.2015 ie., as per Ex.P.34 and thereafter the complainant and her children have executed four sale deeds in favour of accused No.1 and earlier arraigned accused No.2 to 5 on 21.11.2015 but received an agreegate amount of Rs.8,17,00,000/ but as regards the balance amount of Rs.95,00,000/ the accused along with the former accused ie No.2 to 5 have executed an agreement on the same day ie. 21.11.2015 ie Ex.C.39 in her favour and pursuant to which the subject cheques ie Ex.C.2 to C.6 aggregating to Rs.95,00,000/ were received by accused No.1 and handed over to the complainant stating that, the balance sum of Rs.95,00,000/ was being with held for a period of three months for some compound wall issue tobe resolved and that regardless of whether 28 C.C.No. 11119/16 J the issue gets resolved or not the complainant would be entitled to present the said cheques after expiry of the three months period.
19. On the other hand, the accused No.1 has denied the claim of the complainant by contending that, the cheques in question have not been issued towards balance sale consideration amount or liability as claimed by the complainant, but has taken specific defence that, the cheques in question were issued as security towards construction of the compound wall from East to West towards southern boundary of the purchased property as agreed by the complainant and demand made by her but not issued towards any payment or debt or liability in question and there is no balance due towards sale price of the sale deeds, agreement of sale and agreement are created one.
20. In order to substantiate the claim of the complainant, the SPA holder of the complainant i.e PW.1 has produced the documents ie., Ex.C.34 agreement of sale dt: 19.08.2015 and four registered sale deeds dt: 21.11.2015 i.e., Ex.C.35 to C.38 and 29 C.C.No. 11119/16 J Ex.C.39 ie., Agreement dt: 21.11.2015. On careful perusal of the Ex.C.34 it appears that, the original complainant and her children have entered into a sale agreement with one Sri.P.Madhusudhan and G.S.Srinivas ie. the purchaser in sale deed at Ex.C.36 and one of the purchaser in Ex.C.38 by agreeing to sell the site property bearing No.12 situated at 4th cross, Shankarapuram Road, Bangalore measuring East west 48 ft and North -
South 100 ft. for sum of Rs.9,12,00,000/ and purchasers were also agreed to purchase the said property for the said sale consideration amount and have paid Rs.1 crore in favour of the complainant herein as advance sale consideration amount and agreed to pay the balance sale price at the time of registration of the sale deeds after deducting the income tax at source and the complainant and her children have agreed to deliver vacant possession of the said property at the time of registration of the sale deed.
21. It is important to mention here that, on careful perusal of the recitals of Ex.C.34 it appears 30 C.C.No. 11119/16 J that, admittedly the accused no.1 is not a party to the agreement of sale and there are no reference with regard to approach of accused no.1 along with his associates ie., earlier accused No.2 to 5 and the accused no.1 expressed to purchase the site property mentioned in the agreement of sale and even the accused no.1 has not agreed to purchase the entire site property along with the other earlier accused no.2 to 5 for sum of Rs.9,12,00,000/ and there is also no reference or mentioned in the agreement that, the accused no.1 got his nominees ie., accused No.3 and 5 to enter into an agreement of sale with the original complainant. Apart from that, there is no signature of the accused no.1 appearing in the Ex.C.34 sale agreement, therefore it can be said that, accused no.1 is noway concerned to the Ex.C.34 ie alleged agreement of sale. On the contrary the contents of Ex.C.34 discloses that, the said sale agreement was exclusively entered into between the original complainant and her children and the earlier accused no.3 and 5 and the said accused No.3 and 5 are only agreed to purchase the entire site property for total sale consideration amount of 31 C.C.No. 11119/16 J Rs.9,12,00,000/ and the said earlier accused no.3 and 5 have paid Rs.1 crore to the original complainant and also agreed to pay remaining balance sale consideration amount at the time of registration of the sale deed. It is true that, there is a reference of construction of wall in Ex.C.34 but there is no reference of the accused no.1 has agreed and issued the cheques in question towards withholding of balance sale consideration amount of Rs.95,00,000/ in view of construction of the compound wall, on the contrary the vendors ie the original complainant and her son have agreed to get constructed the wall at their own cost within a period of four months and the purchasers may withhold a sum of Rs.38,00,000/ until the issue of construction of wall is resolved , therefore the recitals of the Ex.C.34 are not binding on the accused No.1 and the complainant cannot fix the said responsibility or liability as claimed in this complaint directly against the accused no.1 and there is no nexus between the cheques in question ie Ex.C.2 to C.6 and the recitals of Ex.C.34 ie the Sale Agreement.
32C.C.No. 11119/16 J
22. It is also relevant here to mention that, the PW.1 ie., SPA holder of the complainant has produced the certified copies of the registered sale deeds dt: 21.11.2015 which are marked as Ex.C.35 to C.38. On perusal of the Ex.C.35 to C.38 it appears that, the complainant and her children have executed four sale deeds in favour of the accused No.1 and earlier accused No.2 to 5 i.e., Ex.C.35 discloses that, the complainant and her children have executed a registered sale deed dt: 21.11.2015 in favour of Sri. N.S.Amarnath ie., earlier accused No.2 in respect of portion of site bearing No.12, measuring EastWest : 43 ft, NorthSouth: 25 ft for sale consideration amount of Rs.2,23,00,000/ and Ex.C.36 discloses that, the complainant and her children have executed a registered sale deed dt:
21.11.2015 in favour of Sri.P.Madhusudhan ie earlier accused No.3 in respect of portion of site bearing No.12, measuring EastWest : 43 ft, NorthSouth :
25 ft for sale consideration amount of Rs.2,17,00,000/, Ex.C.37 discloses that, the complainant and her children have executed a registered sale deed dt: 21.11.2015 in favour of Sri. 33 C.C.No. 11119/16 J Gururaj ie., earlier accused No.4 in respect of portion of site bearing No.12, measuring EastWest : 43 ft, NorthSouth : 25 ft for sale consideration amount of Rs.2,09,00,000/; Ex.C.38 discloses that, the complainant and her children have executed a registered sale deed dt: 21.11.2015 in favour of Sri. B.V.Dwarakanath ie accused No.1 herein and Sri.G.S.Srinivas ie. earlier accused No.5 in respect of portion of site bearing No.12, measuring East West:48 ft, NorthSouth: 25 ft for sale consideration amount of Rs.1,68,00,000/ . Hence, on combined reading of Ex.C.35 to C.38 sale deeds it appears that, the complainant and her children have sold the entire site property bearing No.12 measuring East West:48 ft NorthSouth :100ft situated at Shankarapuram, Bangalore by dividing into four strips and executed four absolute registered sale deeds infavour of the different purchasers for different sale consideration amount as shown in the Ex.C.35 to C.38.
23. It is also important here to mention that, according to the complainant the accused No.1 and 34 C.C.No. 11119/16 J other earlier accused No.2 to 5 have agreed to purchase the site bearing No.12 for total sale consideration amount of Rs.9,12,00,000/ and on 19.8.2015 the accused No.1 got his nominees, the accused no.3 and 5 to enter into an agreement of sale with the complainant, in which it was agreed that, the said site will be sold for total sale consideration amount of Rs. 9,12,00,000/ and agreement also provides that, the complainant will try and close the compound wall on south side and even if any person raised any objection there too, the sale transaction will be completed within four months and an amount of Rs.38,00,000/ may be withheld from the complainant until such objection is resolved, however the complainant found difficulty to do the work of closing the compound wall but the accused agreed to take on the work upon themselves and induced the complainant to agree to a sum of Rs.95 Lakhs being withheld for a period of three months on the specific assurance that the accused shall not delay the payment of balance sale consideration beyond the period of three months regardless of whether they succeeded in resolving the said issue or 35 C.C.No. 11119/16 J not. But on combined reading of Ex.C.34 ie Sale agreement and Ex.C.35 to C.38 ie registered sale deeds executed by the complainant and her children it appears that, the registered sale deeds ie Ex.C.35 to C.38 have not been executed by the original complainant and her children in terms of the sale agreement dt: 19.08.2015 ie Ex.C.34 and even the purchasers in Ex.C.34 have not been purchased the entire sale property bearing No.12 from the complainant and her children as per the Ex.C.34 Sale agreement for total sale consideration amount of Rs.9,12,00,000/, in such circumstances it can not be held that, the accused No.1 approached along with other earlier accused Nos.2 to 5 to the complainant and agreed to purchase the site bearing No.12 for total sale consideration amount of Rs.9,12,00,00/ and accordingly on 19.08.2015 the accused no.1 got his nominees ie., accused No.3 and 5 to enter into an agreement of sale with the original complainant, in which it was agreed that, the said site will be sold for total sale consideration amount of Rs.9,12,00,000/ and thereafter complainant and her children have executed registered sale deeds as per 36 C.C.No. 11119/16 J Ex.C.35 to C.38. If such being the fact , definitely the said fact would have been reflected in the registered sale deeds executed by the complainant and her sons i.e., in Ex.C.35 to C.38.
24. It is also important here to mention that, if really the accused No.1 and other earlier accused No.2 to 5 have shown their keen interest to purchase the site and agreed to take the work of construction of compound wall upon themselves and induced the complainant to agree to a sum of Rs.95,00,000/ being withheld for a period of three months on the specific assurance that, regardless of whether they succeeded in resolving the issue or not and the accused No.1 has issued the cheques in question in favour of the original complainant and agreed for payment of Rs.95,00,000/ within three months ie payment of balance sale consideration amount, definitely the said fact would have been mentioned or referred in the registered sale deeds ie., Ex.C.35 to C.38 ie much less in the registered sale deed ie Ex.C.38 executed in favour of the accused No.1 and another, but no such recitals are found in 37 C.C.No. 11119/16 J any of the aforesaid registered sale deeds, in such circumstances the claim made by the complainant in the complaint and also in the evidence of her SPA holder ie., PW.1 cannot be acceptable one and it cannot be held that, the cheques in question ie Ex.C.2 to C.6 have been issued by the accused No.1 in favour of the original complainant in respect of the payment of the balance sale consideration amount of Rs.95 Lakhs and the said amount was withhold by the accused No.1 and other purchasers of Ex.C.35 to C.38 ie earlier accused No.2 to 5, in respect of the construction work of compound wall as claimed by the complainant.
25. It is also the specific claim of the complainant that, she has sold her site property bearing No.12 to the accused No.1 and his associates i.e., earlier accused No.2 to 5 for total sale consideration amount of Rs.9,12,00,000/ and also agreed that she will try and closed the compound wall on the southern side and even if any person raised any objections the sale transaction will be completed within four months from 19.08.2015 but a 38 C.C.No. 11119/16 J some of Rs.38,00,000/ may be withheld from the complainant until such objection is resolved, accordingly the sale agreement i.e., Ex.C.34 executed by her. Thereafter, she found difficulty to do the work of closing the compound wall but the accused No.1 and other purchasers agreed to take the construction work of compound wall upon themselves and induced her to agree to a some of Rs.95,00,000/ being withheld for a period of three months on the specific assurance that they shall not delay the payment of balance sale consideration behind the period of three months regardless of whether the succeeded in resolving the construction issue or not, accordingly she and her children executed four separate sale deeds in favour of the accused No.1 and earlier accused No.2 to 5 i.e., as per Ex.C.35 to 38, has received an aggregate amount of Rs.8,17,00,000/ on 21.11.2015. It is also the specific claim of the complainant that, as regards the balance consideration amount of Rs.95,00,000/ the accused persons executed an agreement i.e., as per Ex.C.39 in her favour, agreeing to close the gap in the compound wall on the southern side on their own 39 C.C.No. 11119/16 J and that regardless of whether they succeeded or not, the payment of Rs.95,00,000/ shall be made on 21.02.2016 and though she had insisted the same to be set out in the sale deeds and for the post dated cheques to be mentioned therein, the accused No.1 pursued her to receive the post dated cheques under a separate agreement, accordingly immediate after the registration of sale deeds, together with the demand drafts issued thereunder, the accused No.1 for and on behalf of himself and other accused persons, drew and furnished the cheques in question I..e, Ex.C.2 to Ex.D.6 for Rs.19,00,000/ each in her favour and thereafter she has presented the cheques after they fell due on 21.02.2016, however on 01.03.2016 all the cheques came to be returned unpaid with and endorsement of "payment stopped by drawer" and thereafter they got issued legal notice to accused persons through her advocate, despite of service of a notice the accused No.1 and other accused persons did not paid the amount covered under the cheques.
26. In order to substantiate the above claim, 40 C.C.No. 11119/16 J the S.P.A. holder of the complainant i.e., PW1 has produced the certified copy of the agreement dated 21.11.2015 entered in to between the original complainant and her children with the accused No.1 and earlier accused No.2 to 5 which at Ex.C.39. On the other hand the accused No.1 strongly disputed and denied the existence of Ex.C.39 by contending that, the said agreement is created and he has not executed the same in favour of the complainant and has not issued the cheques in question i.e., Ex.C.2 to 6 in favour of the complainant in pursuance of the Ex.C.39. On careful perusal of the contents of the Ex.C.39 it appears that the original complainant and her sons have been together shown as first party and the accused No.1 and earlier accused No.3 to 5 have been together shown as second party and it is also seen that, the second party have purchased the entire property i.e., site No.12 and have agreed to construct a compound wall to protect the schedule property and if any person raised any objection with the second party, the second party will suffer loss, therefore it is agreed between first party and the second party that the second party shall retained a 41 C.C.No. 11119/16 J sum of Rs.95,00,000/ out of sale consideration payable to the first party under the sale deed and the second party also agreed that they shall issued post dated cheques for three months from this day i.e., 21.02.2016 for the property sold and the second party either to construct wall or to resolve the issue with the occupant/owner of the party at the rare of property within such period, regardless of the second party succeeding in constructing the bifurcating wall or resolving the issue, the first party is entitled to deposit/present the cheque on the date mentioned for which second party has no objections.
27. But on careful considering the recitals of Ex.C.39 it is nowhere reflected about the alleged agreement of sale i.e., Ex.C.34 and there is no mentioning of sale of property bearing site No.12 sold for total sale consideration amount of Rs.9,12,00,000/ and also no reference made with regard to payment of balance sale consideration amount of Rs.95,00,000/ out of total sale consideration amount of Rs.9,12,00,000/ as per Ex.C.34 and it is also not mentioned about issuance 42 C.C.No. 11119/16 J of the cheques in question i.e., Ex.C.2 to 6 by the accused No.1 in favour of the complainant and there are no recitals as to whether the accused No.1 has agreed and issued the cheques in question i.e., Ex.C.2 to 6 for Rs.19,00,000/ each i.e., total amount of Rs.95,00,000/ in favour of the complainant towards balance sale consideration amount and there is no reference of cheques numbers, amount as claimed by the complainant in the complaint. If really the accused No.1 had issued the cheques in question for and on behalf of himself and other accused persons and handed over the cheques to the complainant towards balance sale consideration amount, definitely, a reference would have been made about cheque numbers, amounts as shown in Ex.C.2 to Ex.C.6 i.e., cheques in question in the said agreement i.e., Ex.C.39 itself, but no such reference is made in the Ex.C.39, therefore it can not be held that, the accused No.1 had issued the cheques in question ie., Ex.C.2 to 6 for sum of Rs.95,00,000/ as post dated cheques for three months towards balance sale consideration amount in respect of the property sold under the sale deeds 43 C.C.No. 11119/16 J on the date of alleged agreement and also agreed to present the said cheques, regardless of their succeeding in constructing the wall or resolving the issue, the complainant is entitled to deposit/present the cheques on the date mentioned thereon and accused No.1 has no objection. In addition to the above even as per the recitals of the Ex.C.39 agreement the accused No.1 alone has not agreed to retain alleged some of Rs.95,00,000/ out of sale consideration payable to the complainant i.e., first party in the said agreement and it is also not mentioned in the said agreement that the accused No.1 issued the post dated cheques on his behalf and on behalf of other purchasers for three months from the said date i.e., 21.02.2016 for the property sold under the sale deeds, in such circumstances it cannot be held that the cheques in question i.e., Ex.C.2 to 6 have been issued by the accused No.1 in pursuance of the terms of Ex.C.39 agreement, towards alleged balance sale consideration.
28. It is also important here to mention that if really the complainant and her sons have agreed to 44 C.C.No. 11119/16 J withhold an amount of Rs.95,00,000/ out of total consideration amount in respect of construction of wall for a period of three months and have executed registered sale deeds i.e., Ex.C.35 to Ex.C.38 in favour of the accused No.1 and other accused No.2 to 5 by receiving total aggregate amount of Rs.8,17,00,000/ out of total sale consideration of Rs.9,12,00,000/, definitely the said fact would have been reflected in any of the registered sale deeds i.e., Ex.C.35 to 38 or if it is not reflected in any of the sale deeds, the nonmentioning of the said fact in the registered sale deeds would have reflected in the alleged agreement i.e.,Ex.C.39, therefore a serious doubt creates with regard to execution of alleged agreement i.e., Ex.C.39 as on the date of registration of the sale deeds i.e.,Ex.C.35 to 38. It is also important to mention here that, the learned counsel for the accused during the course of cross examination of the PW1 confronted the certified copy of the deposition of the PW1 in OS No.3923/2016 which is marked as Ex.D.1 in this case and the PW1 has also admitted that the Ex.D.1 is the certified copy of his deposition in OS No.3923/2016 pending 45 C.C.No. 11119/16 J on the file of 12 ACC and SJ Court, Bangalore i.e., the original complainant has also filed a civil suit in respect of the subject matter in issue. The PW1 herein i.e., PW2 in OS No.3923/2016 during the course of his cross examination at para No.12 admitted that, "I do not know if it is suggested to me that as on 21.11.2015 no documents have been executed other than the sale deeds which are marked as Ex.P.1 to Ex.P.4". Further at para No.11 of his cross examination admitted that, "It is true to suggest that after receipt of two D.Ds of Rs.50 lakhs on 19.08.2015 the plaintiffs agreed to close the said passage within two months from the said date. It is true to suggest that even at the time of sale the passage was not closed." Hence on careful considering the above admissions of the PW1 herein in the civil suit filed by him against the accused herein in respect of same subject matter makes it clear that the SPA holder of the complainant pleads his ignorance about the existence of Ex.C.39 alleged agreement dated 21.11.2015 produced in this case. The PW1 himself admitted that there were no 46 C.C.No. 11119/16 J documents executed by the complainant other than the sale deeds as on 21.11.2015 clearly show that there were no other document executed between the complainant and accused No.1 and other earlier accused No.2 to 5 and itself sufficient to hold that, as on the date of registration of the sale deeds on 21.11.2015 the Ex.C.39 was not in existence and the dispute with regard to construction of the wall or closer of the wall remained unsolved as on the date of registration of the sale deed.
29. It is also relevant here to refer the admissions of the SPA holder of the complainant i.e., PW1 which are relevant here to consider along with the documentary evidence produced by him. The PW1 during the course of his cross examination as admitted certain facts which reads under:
"ಪರರದದರರರರ ಬದರಕದದ ಸಮಯದಲ ಅವರನರ ನ ನನರ ನನನಡರರವದಲಲ. ಪರರದದರರ ಮಕಕಳನರ ನ ಸಹ ನನರ ನನನಡರರವದಲಲ ನನಗ ಜಪಎ ಬರದರಕನಟಟರರವವರ ಹಸರರ ಗನತತರರತತದ ಆದರ ಈಗ ಹನಳಲರ ಬರರವದಲಲ."47
C.C.No. 11119/16 J Further admitted that "ನನಗ ಮಮತ ಪರರದದರರಗಲನ ಅಥವ ಅವರ ಮಕಕಳಗಲನ ನ ಕನಟಟರರವದಲಲ."
ವವವಹರದ ಬಗಗ ನನಗ ಮಹತಯನರ Further admitted that "ಪರರದದರರಗ ವಯಸಸಗರರತತದ ಹಗನ ಅವರರ ವದನಶದಲ ನಲಸದರರದರ ನನಗ ನಮಮ ವಕನಲರರ ನಮಗ ಮಹತ ಕನಟಟರರತತರ. ಮಣಕಮಷಷಸಸಮರವರರ ನನಗ ಮಹತ ಕನಟಟರರವದಲಲಲ." Further admitted that "ಮಮತ ಶಶನಮತ ಮಣಕಮಷಷಸಸಮರವರ ಮಕಕಳರದಲನ ಸಹ ಈ ಕನಸನ ನ ತಳದರಕನಳಳಲರ ನನರ ಪ ಶಯತನಸರರವದಲಲ."
ಬಗಗ ಮತಯನರ Further admitted that "ಕನಸನಲ ನಪ1 ರರದ ನಪ39 ರಲನ ದಖಲತಗಳನರ ನ ನಮಮ ವಕನಲರರ ನನಗ ಕನಟಟರರತತರ. ಸದರ ನಸ1 ರರದ ನಸ39 ರಲನ ನ ಪರರದದರರರ ನನಗ ಕನಟಟರರವದಲಲ."
ದಖಲತಗಳನರ Further admitted that "ಸದರ ಶಶನ ಉಮಶರಕರ ವಕನಲರ ಹನಳಕಯ ಮನರಗ ನನರ ಈ ಕನಸನಲ ಪರರದದರರ ಪರವಗ ಸಕ ಹನಳಲರ ಬರದರರತತನನ ಎರದರ ನಜ. ಈ ಕನಸನಲ ಸಲಸದ ಪರರದಯನರ ನ ಶಶ ಉಮ ಶರಕರ ವಕನಲರನ ದ ನನರ ಮಹತ ಕನಟಟರರವದಲಲ ಎರದರ ನಜ."
ತರರಸದರ Further admitted that "ಈ ಕನಸನ ಮಮತ ಶಶನಮತ ಮಣಕಮಷಷ ಸಸಮರವರರ ರವ ನ ಮರಟ ಮಡದದರ ಬಗಗ ತಳದರಕನರಡದರ ಎರದರ ಸಕ ಆಸತಯನರ 48 C.C.No. 11119/16 J ತಳದರಕನರಡದನನ ಎರದರ ಉತತರಸರತತರ. ರವ ಆಸತ ಎರದರ ನ ನನಗ ವಕನಲರ ಕಚನರಯಲ ಕನಟಟರರತತರ. ವಕನಲರನ ಮಹತಯನರ ನ ಕನಟಟರರತತರ. ನನಗ ವವಯಕತಕ ತಳರವಳಕ ಇರರವದಲಲ ಮಹತಯನರ ಎರದರ ನಜ."
Further admitted that "ಆ ದನ ಶರಕರಪರರ ಆಸತಗ ರನ.8,17,00,000/ ಗಳಗ ವವವಹರ ಆಗರರತತದ ಎರದರ ನಜ."
Further admitted that "ದನರಕಕ 19.08.2015 ರರದರ ರವದನ ಅಗಶಮರಟಆಗದನ ಇದದರನ ಸಹ ನನರ ನಸ.34 ನರ ನ ಸಮಷಟ ಮಡ ಹಜರರಪಡಸರರತತನನ ಎರದರ ಸಕಯರ ನನರ ವಕನಲರವರ ಕಚನರಯಲ ಕನಟಟ ದಖಲಗಳನರ ನ ನನನಡ ಸಹ ಮಡ ದ ಹಜರರಪಡಸದರ ಆದರನ ಸಮಷಟ ಮಡರರವದರ ಗನತತರರವದಲಲವರದರ ಉತತರಸರತತರ."
30. Hence, on careful perusal of the above admissions of the S.P.A. holder complainant i.e., PW1 makes it clear that the S.P.A. holder himself admitted that he had not seen the original deceased complainant during her life time and has also not seen the legal heirs of the complainant and also admitted that neither the original complainant nor her children had given instructions to him in respect of the transaction in question. The PW1 has also 49 C.C.No. 11119/16 J admitted that his advocate had given information to him that, the original complainant was old aged and residing at abroad and the original complainant has not given any information to him. The PW1 has also admitted that he has not made any efforts to get information about the transaction even from the children of the original complainant i.e., deceased Smt.Mani Krishna Swamy. The PW1 has also admitted that the original complainant had not handed over documents to him which are at Ex.C.1 to Ex.C.39 but his advocate had given the Ex.C.1 to Ex.C.39 documents to him. It is also admitted by PW1 that, as per the instructions of one Sri. Umashankar advocate he appeared in this case to give evidence on behalf of the complainant and the said Sri.Umashankar advocate had only given instructions to prepare the complaint which is presented in this case. It is also admitted by PW1 that, his advocate had given information about the property which was sold in this case and he does not have any personal knowledge about the sale of property in question. It is also admitted by PW1 that, the transaction in respect of Shankarapuram 50 C.C.No. 11119/16 J property took place for Rs.8,17,00,000/. The PW1 even has not denied the suggestion made him that, the agreement dated 19.08.2015 i.e., Ex.C.34 was got created, but he answered that he does not know has to whether the Ex.C.34 was got created or not. Therefore the above admissions of the PW1 are taken into consideration his oral evidence cannot be acceptable one in any angle. The admissions of the PW1 clearly goes to show that, he has no personal knowledge with regard to the transaction in question and documents which are produced in this case. i.e., Ex.C.1 to C.39. It is relevant here to mention that, when the PW1 himself admitted that he had not seen the original complainant during her life time and after her death he had not taken any instructions from her children i.e., Lrs of the complainant in this case, in such circumstances whatever the evidence given by the PW1 in this case as their S.P.A. holder cannot be acceptable one. It true that the documents i.e., Ex.C.1 to C.40 are produced by the PW1 but he admits that he does not know anything about the contents of the documents and also admitted that, the complainant had not handed over Ex.C.1 to C.39 51 C.C.No. 11119/16 J documents to him, in such circumstances a serious doubt arises as to whether the documents produced by the PW1 are came from the lawful custody or not. It is also pertinent note here that when the PW1 himself admitted that he had not given any instructions to prepare the complaint which is presented in this case and has no knowledge about the transaction in question and about the property which was sold by the original complainant and her children, on this count also it can be held that the PW1 is not aware of the contents of the complaint and he pleaded ignorance about the transaction in question and property involved in this case, therefore his oral evidence cannot be acceptable one. It is true that the complaint is presented by the PW1 and the documents i.e., Ex.C1 to C.40 are also produced by the PW1, but the admissions of the PW1 destroyed the entire claim made by the original complainant in the complaint as the averments made in the complaint are remained as allegations against the accused persons but the same have not been proved by the complainant or PW1 by giving evidence. It is also relevant here to mention that, though the PW1 52 C.C.No. 11119/16 J has produced the documents and got marked them as Ex.C.1 to C.40 but mere marking of the documents is not sufficient to hold that the contents of the documents have been proved automatically. Therefore the oral evidence of the PW1 is not supported to the claim made by the complainant in the complaint and his evidence is not at all reliable to accept the claim made by the complainant in any angle.
31. It is also important here to mention that, though the PW1 has produced the documents i.e., Ex.C.34 alleged sale agreement, Ex.C.39 i.e., alleged Agreement dated 21.11.2015 alleged to have been executed by the accused No.1 and earlier accused No.2 to5 and the accused No.1 has issued the cheques in question i.e., Ex.C.2 to C.6 towards balance sale consideration amount, but the PW1 even has not identified the signatures of the accused No.1 on Ex.C.39, therefore mere production of the Ex.C.39 it cannot be held that in pursuance of Ex.C.39 the accused No.1 has issued the cheques in question and even the PW1 himself admitted that the 53 C.C.No. 11119/16 J complainant had not handed over the Ex.C.1 to C39 documents to him in such circumstances it cannot be held that the complainant has proved that, the accused No.1 has issued the cheques in question i.e., Ex.C.2 to C6 in favour of the original complainant towards alleged balance sale consideration amount of Rs.95,00,000/. Therefore for above said reasons the evidence of SPA holder of the original complainant and her children i.e., PW1 cannot be acceptalbe and came to conclusion that, the accused No.1 had issued the cheques in question in favour of the complainant as claimed by the complainant in the legal notice and also complaint.
32. The learned counsel for the accused during the course of his argument and in the written argument has argued that, on the basis of admissions and statement on oath of PW1 it is crystal clear that the PW1 has no personal knowledge regarding entire transaction that took place between the complainant and her children and accused, therefore his evidence is only hearsay evidence and it has no credibility. In support of his arguments relied 54 C.C.No. 11119/16 J upon the decisions of Hon'ble Apex Court i.e., 1) (2014) 11 SCC 790 2) (2010) 10 SCC 512, 3) (1999) 3 SCC 573.
33. On the other hand the learned senior counsel during the course of his argument and also in written arguments as specifically argued relying upon the decision of Hon'ble Apex Court i.e., A. C. Narayanan Vs State of Maharasthra, argued that in the said decision the Hon'ble Apex Court was not deciding on the issue of primary evidence and secondary evidence and the situation where the case is based on documentary evidence was not even before the Hon'ble Apex Court and all that the Hon'ble Apex Court was deciding was resolution of an apparent complict between the decisions in M.M.T.C. Ltd and ANR Vs. Medchl Chemicals and Pharma (P) Ltd and Anr and Janaki Vasudeo Bhojwani and Anr Vs IndusInd Bank Ltd., and Ors., and also argued that, in the said decision the Hon'ble Apex Court observes that, it is excepted that such power of attorney holder or legal representatives should have 55 C.C.No. 11119/16 J knowledge about the transaction in question so has to able to bring on record the truth of grievance/offence, this makes it evident that if primary evidence is available that would bring on record the truth of grievance and no personal knowledge would be required on the part of the power of attorney holder, therefore in A.C. Narayanan's Case the Hon'ble Apex Court does not laid down the proposition that in every case a complainant is a represented by power of attorney holder, such power of attorney holder must have personal knowledge of the facts of the case. The learned counsel has also relied upon the decision of Hon'ble High Court of Karnataka reported in ILR 2006 Kar. 3129 and also argued that in the said decision the Hon'ble High Court held that, as per Sec.61 of Evidence Act mandates that the contents of documents may be proved either by primary or secondary evidence, primary evidence means the documentary evidence produced for inspection of the court, therefore when a particular fact is to be established by production of documentary evidence there is no scope for leading oral evidence and there 56 C.C.No. 11119/16 J is scope for personal knowledge and what is to be produced us the primary evidence i.e., documents itself and the said evidence can be adduced by the party or by his power of attorney holder, production of document marking of document is a physical act which does not need any personal knowledge, therefore in this case also the evidence of PW1 is reliable and the documents produced by him i.e., Ex.C.1 to C.40 does not require any personal knowledge and the said documents are primary evidence and there is no scope for leading oral evidence and personal knowledge of power of attorney holder. The learned counsel for complainant has also relied upon the decision reported in 2013 SCC Online Kar. 1649 in the case of Bhagyamma Vs. R Lokesh and argued that, in the said decision the Hon'ble High Court held that, where the case is based on primary evidence, personal knowledge is not necessary.
34. On careful considering the rival arguments canvassed by the learned counsels for the complainant and the accused and on careful perusal 57 C.C.No. 11119/16 J of the oral and documentary evidence of the SPA holder of the complainant i.e., PW1, it is relevant here to mention that, whether specific averments as to the knowledge of the power of attorney holder in the transaction in question must be asserted in the complaint or not. It is settled law that, filing of complaint U/S 138 of N.I. Act through power of attorney holder is legal and competent. But as it is already stated in the above that, in this case the SPA holder of the complainant i.e., PW1 himself admitted that he had not seen the original complainant during her lifetime and her legal heirs and he does not know the name of the original complainant and neither the complainant nor her children had given instructions about the transaction in question and even he has not made any efforts to get instructions about the transaction in question from the children of the complainant and also admitted that, the documents which are produced by him in this case i.e., Ex.C.1 to C39 have not been handed over to him by the original complainant and he appeared in this case to give his evidence at the instructions of one Sri. Umashankar advocate and the said advocate had 58 C.C.No. 11119/16 J given instructions to prepare the complaint in this case, in such circumstances it cannot be held that, the oral evidence is not required to prove the contents of the documents produced by the PW1 in this case. It is relevant here to mention that as per the principles of law laid down Hon'ble High Court of Karnataka and the Hon'ble Apex Court of India in the decisions relied upon by the learned counsel for the complainant, the complainant in this has not produced the primary documentary evidence in accordance with law, in view of admissions given by the PW1 in his cross examination. The power of attorney holder of complainant himself is not aware of the transaction in question and had not seen the original complainant or her children though he has produced the SPA document i.e., Ex.C.1 and Ex.C.40 alleged to have been executed by the original deceased complainant and her children, in such circumstances mere the PW1 physically appeared before the court and produced the documents i.e., Ex.C.1 to C.40 is not sufficient to hold that leading of oral evidence is not required and personal knowledge of case transaction is also not required.
59C.C.No. 11119/16 J
35. In addition to the above careful perusal of the averments of the complainant and special power of attorney document i.e. Ex.C.1 executed by the deceased original complainant and Ex.C.40 executed by the Lrs of original complainant in favour of the PW1, it appears that, there are no averments that, the special power of attorney holder i.e. PW.1 was present or aware of the transaction in question. Even for sake of discussion it is assumed that, there are no such recitals regarding personal knowledge of SPA holder in respect of transaction in question, but at least there should have been averments in the complaint as to how and when the special power of attorney holder having personal knowledge of the transaction in question, that is also not averred by the complainant in her complaint. The perusal of the evidence of special power of attorney holder of complainant/PW.1, it appears that he has no where stated as to how he came to know about the transaction in question and whether he was present at the time of transaction and at the time of issuance of the cheques in question to the complainant. Apart 60 C.C.No. 11119/16 J from that the complainant or her SPA holder have not explained or mentioned the above said facts either in the complaint or in the affidavit filed in lieu of oral evidence i.e. examination in chief by the PW.1. Therefore in absence such material averments, it cannot be held that, the SPA holder of complainant is having personal knowledge of the transaction in question and issuance of the cheques in question by the Accused No.1 in favour of the complainant in order to discharge the liability in question. As it is already stated in the above that, the SPA holder of the complainant has clearly admitted that he had not seen the original complainant during his lifetime and even had not seen the children of the complainant and either the deceased complainant or his legal heirs have given instructions in respect of the transaction in question to him and the original complainant had not handed over the documents i.e., Ex.C.1 to C39 to him and he had not given instructions to prepare the complaint which is presented in this case, in such circumstances it can be held that either the original complainant or her Lrs, have not handed over the SPA document i.e., 61 C.C.No. 11119/16 J Ex.C.1 and Ex.C.40 to the PW1 and the SPA holder is not at all having any knowledge about the documents which are produced by him and the transaction in question, under such circumstances, the entire evidence given by the SPA holder of the complainant i.e. PW.1 cannot be acceptable one. In this regard it is a relevant here to refer the decision reported in (2015) 12 SCC 203 incase of A.C.Narayana Vs. State of Maharashtra wherein the Hon'ble Apex court held that : 19) As noticed herein above though Janki Vashdeo Bhojwani (Supra), relates to powers of Power of Attorney holder under CPC but it was concluded therein that a plaint by a Power of Attorney holder ion behalf of the original plaintiff is maintainable provided he has personal knowledge of the transaction in question. In a way, it is an exception to a well settled position that criminal law can be put in motion by anyone [vide Vishwa Mitter (Supra)] and under the Statutue, one stranger to transaction in question, namely, legal heir etc., can also carrying forward the pending criminal complaint or initiate the criminal action if the 62 C.C.No. 11119/16 J original complainant dies [vide Ashwin Nanubhai Vyas Vs. State of Maharashtra (1967) 1 SCR 807). Keeping in mind various situations like inability as a result of sickness, old age or death or staying abroad of the payee or holder in due course to appear and depose before the court in order to prove the complaint, it is permissible for the Power of Attorney holder or for the legal representative(s) to file a complaint and /or continue with the pending criminal complaint for and on behalf of payee or holder in due course. However, it is expected that such power of attorney holder or legal representative(s) should have knowledge about the transaction in question so as to able to bring on record the truth of the grievance/offence, otherwise, no criminal justice could be achieved in case payee or holder in due course is unable to sign, appear or depose as complainant due to above quoted reasons. Keeping these aspects in mind, in MMTC (supra), this court had taken the view that if complaint is filed for an on behalf of payee or holder in due course that is good enough compliance with section 142 of 63 C.C.No. 11119/16 J N.I. Act." Hence in view of the principles of law laid down by the Hon'ble Apex court of India the power of attorney should have personal knowledge with regard to transacting in question under that circumstances only his evidence is required to be acceptable one. But in the present case as already stated in the above that, there is no averment either in the complaint or in the affidavit filed in lieu of examination in chief by the SPA holder of the complainant with regard to personal knowledge of the transaction in question, therefore by applying the above principles of law laid down by Hon'ble Apex Court, the evidence given by the SPA holder of the Complainant i.e. PW.1 cannot be acceptable as the PW1 is aware of complaint and her legal heirs. On the other hand with due respect to the principles of law laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka relied upon by the learned counsel for the complainant are not helpful for the complainant in this case as the SPA holder of the complainant himself failed to prove that the original complainant or after her death her legal heirs have executed the SPA in his favour and handed over 64 C.C.No. 11119/16 J the same to him and authorized him to file this complaint and to give evidence and to produce documents and the facts and circumstances of this case and facts and circumstances of the decided cases are not one and the same.
36. It is settled law that, the accused in a proceedings u/s.138 of NI Act has two options i.e., the accused can either show that, consideration and debt did not exist or that, under particular circumstances of the case the non existence of consideration and debt is so probable that, a prudent man ought to suppose that, no consideration and debt existed and in order to rebut the statutory presumption accused is not expected to prove his defence beyond reasonable doubt as expected that of the complainant in criminal trial and the accused may adduce direct evidence to prove that the cheque in question was not supported by consideration and there was no debt or liability to be discharged by him and the court need not insist in every case that, the accused should disprove the non existence of consideration that, by leading direct evidence 65 C.C.No. 11119/16 J because the existence of negative evidence is neither possible nor contemplated. In this regard it is relevant here refer the decision of Hon'ble Apex Court of India reported in "LAWS (SC) 2019882 in a case of SRI.DHANESHWARI TRADERS VS. SANJAY JAIN" and in anther decision reported in (2020) 12 SCC 500 wherein the Hon'ble Apex Court held that "It is well settled that, rebuttal can be made with reference to the evidence of prosecution as well as of defence" and in another decesion reported in (2010) 11 SCC 441 in the case of RANGAPPA VS. SRI.MOHAN wherein it is held that "ordinarily in cheque bounce cases, what the courts have considered is whether the ingredients of the offence enumerated in Sec.138 of Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Sec.139 of the Act and also held that "It is settled position that, when an accused has to rebut the presumption u/s.139, the Standard of proof for doing so is 66 C.C.No. 11119/16 J that of preponderance of probabilities". Hence, in view of the principles of law laid down in the above referred decisions, the accused in order to rebut the statutory presumption is not expected to prove his defence beyond all reasonable doubt and the accused may adduce direct evidence to prove his defence or rebuttal can be made with reference to the evidence of the prosecution and standard of proof for rebuttal of presumption is that of preponderance of probabilities i.e., something which is probable has to be brought on record by the accused. By keeping these principles of law in the mind now let us examine the oral and documentary evidence adduced by the accused as to whether the accused has successfully rebutted the statutory presumptions as against the complainant.
37. In this case also the accused No.1 did not entered into witness box or examined himself before the court, however after recording of his statements U/s.313 of Cr.P.C., the accused No.1 has produced certain documents ie., 1) copy of Account extract from the period from 01.02.2016 to 15.03.2016 2) 67 C.C.No. 11119/16 J certified copies of the order sheet, plaint, and writen statement in O.S.No.3923/2016 pending on the file of Hon'ble CCH 27 court, Bangalore along with his additional written statement U/s.313 (5) of Cr.P.C. to show that, as on the date of presentation of the cheques in question the accused No.1 was having sufficient funds in his bank account and the complainant through her SPA holder has filed suit in O.S.No.3923/2016 in respect of the subject cheques involved in this complaint and same is pending for consideration. Though the complainant has opposed the production of the documents by the accused by filing the application U/s.313(5) of Cr.P.C. by contending that, unless the documents are got marked through the evidence by the accused and said documents cannot be acceptable one. But during the course of crossexamination of the PW.1, he has admitted about filing of original suit in O.S. 3923/2016 against the accused and the subject cheques in this complaint is also the subject matter of the said suit, hence it goes to show that, the complainant has also filed a civil suit in respect of the subject cheques involved in this complaint and 68 C.C.No. 11119/16 J same is pending for consideration before the concerned court. The another document ie., the statement of the bank account pertaining to the accused No.1 discloses that, as on the date of presentation of the cheques ie., 21.2.2016 the Accused No.1 was having sufficient funds in his account to honour the cheques in question but the cheques in question have been returned for the reasons of Payment stopped by Drawer. As it is already held in the above that, the complainant has miserably failed to prove that, the cheques in question ie Ex.C.2 to C.6 have been issued towards balance sale consideration amount of Rs.95 Lakhs and also held that, complainant has miserably failed to prove that, the accused No.1 and other earlier accused No.2 to 5 have agreed to withhold an amount of Rs.95 Lakhs in lieu of construction of compound wall within three months from the date of sale deeds and the accused No.1 has issued the cheques in question on his behalf and also on behalf of the earlier accused No.2 to 5 towards payment of the balance sale consideration amount by agreeing to present the said cheques regardless of whether they 69 C.C.No. 11119/16 J succeeded in resolving the issue of construction work undertaken by them. It is also held that, the SPA holder of the complainant during the course of his crossexamination himself admitted that, he has no knowledge about the sale transaction in question and there were no other document executed between the complainant and accused No.1 as on the date of execution of the registered sale deeds and also admitted that, he does not know as to whether the Ex.C.34 ie sale agreement was got created or not and also admitted that, the transaction in respect of Shankarapuram property took place for Rs.8,17,00,000/ and the documents ie Ex.C.1 to C.39 produced by him were not handed over to him by the original complainant and also admitted that, there is a dispute between the complainant and accused in respect of the construction of the wall and the complainant agreed to close the said passage within two months and even at the time of sale the passage was not closed and also admitted that, a civil suit filed by the complainant against the accused is pending for consideration, in such circumstances, the admissions given by the PW.1 70 C.C.No. 11119/16 J corroborates the defence of the accused that, the cheques in question were handed over the complainant towards security in respect of construction of the compound wall of purchased property not for balance sale consideration amount as claimed by complainant. Therefore the accused has successfully rebutted the presumptions available to the complainant on the basis of materials produced by the complainant, in such circumstances it can be held that, accused is not expected to prove his defence beyond reasonable doubt by leading his oral and documentary evidence or as expected of the complainant in criminal trial.
38. It is also relevant here to mention that, the complainant in her legal notice and in the complaint and the SPA holder of the complainant ie., PW.1 in his evidence nowhere stated that, on which date , month and year the accused No.1 had issued the cheques in question and even the place of issuance of cheques is also not mentioned in the legal notice, complaint and in the evidence of PW.1 but only it is stated that, as regards the balance sale consideration 71 C.C.No. 11119/16 J of Rs.95 Lakhs the accused persons executed an agreement on 21.11.2015 infavour of the complainant and the accused No.1 insisted the complainant to receive post dated cheques under a separate agreement but in the said agreement ie in Ex.C.39 it is nowhere referred about the Ex.C.2 to C.6 and it is also not reflected in Ex.C.39 that, accused No.1 on his behalf and on behalf of the other purchasers issued the cheques in question ie Ex.C.2 to C.6 infavour of the complainant as post dated cheques towards balance sale consideration of Rs.95 Lakhs, by agreeing to present the said cheques regardless of whether they succeeded or not in respect of the issue relating to construction of the compound wall or to close the gap towards southern side of the purchased property, therefore non mentioning of date, month and year and place of issuance of the cheques in question in the legal notice, complaint or in the evidence of PW.1 may creates a serious doubt with regard to issuance of cheques in question towards discharge of the alleged liability as claimed by the complainant in this complaint. If really the accused No.1 had issued the 72 C.C.No. 11119/16 J cheques in question ie Ex.C.2 to C.6 on the date of alleged agreement ie Ex.C.39 in favour of the complainant for Rs.19 Lakhs each in total Rs.95 Lakhs towards balance sale consideration amount, definitely the complainant would have mentioned the date, month and year, amount and cheques number and place in the alleged agreement ie., Ex.C.39, failure to mention the above 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 it corroborates the defence of the accused.
39. Therefore, on careful scrutiny of over all evidence of the complainant, as it is already held and come to the conclusion that, the complainant has miserably failed to prove that the accused No.1 has issued the cheques in question ie Ex.C.2 to C.6 towards balance sale consideration amount of Rs.95 Lakhs and the accused No.1 has agreed to present the said cheques regardless of whether the issue of construction of the compound wall or closure of the gap towards southern side of the purchased property 73 C.C.No. 11119/16 J under the registered sale deeds ie ex.C.35 to C.38 and the accused No.1 intentionally issued Stop payment instruction to the concerned bank and has committed an offence U/s.138 of the N.I.Act. In addition to that, when the complainant herself has failed to establish her case beyond all reasonable doubt, she 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 reasonable doubt and in the present case complainant has failed to prove her case beyond all reasonable doubt on the contrary the Accused No.1 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'.
40. 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 : 74 C.C.No. 11119/16 J 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 No.1 is acquitted for the offence punishable U/sec.138 of N.I.Act.
The proceedings against Accused No.2 to 5 dropped vide order dt: 20.01.2017.
Personal bond executed by the Accused No.1 stands cancelled.
The cash security of Rs.1,00,000/ which was deposited by the Accused No.1 vide order dt:28.06.2016 is ordered to be refunded to him ( 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 21st day of June 2021).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
75C.C.No. 11119/16 J ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Shri. Manjunath C.K (GPA holder of complainant)
2. List of documents exhibited on behalf of the Complainant: Ex.C1 : Special Power of Attorney Ex.C2 to C.6 Original Cheques Ex.C2(a) to C.6(a) : Signatures of the Accused No.1 Ex.C7 to C.11 : Bank Memos Ex.C.12 : Office copy of the Legal Notice Ex.C13 to C15 : Returned legal notices Ex.C16 to C18 : Postal envelopes Ex.C19 to C21 : Postal receipts Ex.C22 to C24 : Postal acknowledgements Ex.C25 and C26 : Postal acknowledgements Ex.C27 to C31 : five postal receipts Ex.C32 : Reply notice given by 1st accused Ex.C33 ; Postal envelope Ex.C34 : Certified copy of the agreement of sale dt: 19.8.2015 Ex.C35 to C38 : Certified copies of the registered Sale deeds dt:21.11.2015 Ex.C39 : Certified copy of the Agreement dt:
21.11.2015 Ex.C40 : Certified copy of the SPA dt:
27.12.2019 executed by Lrs of complainant 76 C.C.No. 11119/16 J
3. List of witness/s examined on behalf of the Accused: Nil
4. List of documents exhibited on behalf of the Accused: Nil (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
77C.C.No. 11119/16 J 21.06.2021 Through V.C (Time: 4.15 P.M.) Case called, the learned counsel for the complainant and accused are appeared through Video conference i.e., Jitsi Meet App., Judgment pronounced through V.C. ( 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 No.1 is acquitted for the offence punishable U/sec.138 of N.I.Act.
The proceedings against
Accused No.2 to 5 dropped vide
order dt: 20.01.2017.
Personal bond executed by the
Accused No.1 stands cancelled.
The cash security of
Rs.1,00,000/ which was
deposited by the Accused No.1
vide order dt:28.06.2016 is
78
C.C.No. 11119/16 J
ordered to be refunded to him ( If
not lapsed or forfeited) after the
expiry of the appeal period.
XVI ACMM, B'luru.