Bangalore District Court
C.Krishnaveni vs K.Muniraju on 7 April, 2018
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 7th day of April - 2018
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.21730/2010
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : C.Krishnaveni,
W/o.Chandrashekar Naidu,
Aged about 38 years,
R/at No.68, Rajamma Garden,
Rajivgandhi Road,
Jaraganahalli, Bengaluru.
(Rep. by Sri.Manjunath.B.R,
Advocate)
V/S
Accused : K.Muniraju,
S/o.Late.M.Krishnappa,
Aged about 27 years,
No.167, 2nd Cross,
Jaraganahalli Village,
Near Eswara Temple,
J.P.Nagar, 6th Phase,
Bengaluru-78.
(Rep.by Sri.R.Vijay Kumar,
Advocate)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.21730/2010
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 07.04.2018.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 30.03.2010 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque of Rs.4 lakhs.
2. In brief, the complainant case is:
The accused is known to the complainant since five years, and with that acquaintance approached the complainant for hand loan of Rs.4 lakhs to meet out his family necessities and received Rs.4 lakhs from the complainant in the month of February, 2010, and for its repayment accused got issued the cheque bearing No.452952, dated:03.02.2010, drawn for Rs.4 lakhs, drawn on Centurion Bank, Cunningham Road, Bengaluru.
The complainant has further contended that, the accused assured with fully confidence that, the cheque will be honoured on Judgment 3 C.C.21730/2010 presentation and requested to present on the cheque date for realization. Accordingly, the complainant has presented the same before her banker viz., Vijaya Bank, South End Circle Branch, Bengaluru. But, to shock and surprise to her that, the said cheque was returned dishonoured with shara "Insufficient Funds"
dated:05.02.2010. Thereafter, the complainant approached the accused informed about the said thing and demanded to pay the money covered under the cheque. At that time, the accused expressed her financial difficulties and promised to repay the said money within few days, but not made the payment amount covered under the cheque. Therefore, on 26.02.2010, she got issued legal notice through her counsel under the R.P.A.D as well as UCP. The UCP was issued to ensure prompt service of demand notice. The accused deliberately knowing that, without there being sufficient funds in his account got issued the cheque, thereby, the accused caused the offence punishable under Section 138 of Negotiable Instruments Act. After compliance required mandatory provisions filed the present complaint.
3. After receipt of the private complaint, the then presiding officer took the cognizance and got registered the PCR and Judgment 4 C.C.21730/2010 recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. Thereafter, to prove the case of the complainant, she herself choosen to examined as PW.1 and got marked Ex.P1 to P8. The PW.1 was also subjected for cross-examination in detail.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein, the accused denied the same and the answer was given by him is recorded. No doubt, in this case, the accused not choosen to entered into the witness box, but making the cross-examination for his use and put forth his defence and during the course of cross-examination of PW.1 by way of confrontation in view of admission the Ex.S1, Exs.D1 to D7 were marked.
Judgment 5 C.C.21730/2010
7. The complainant counsel submitted that, the arguments from the complainant side may be taken as heard, and the advocate for the accused addressed the detailed arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves that, she complied all the mandatory provisions to maintain the present case?
2) Whether the complainant proves beyond the reasonable doubt that, she lent sum of Rs.4 lakhs to the accused in the month of February, 2010 and for its repayment the accused got issued Ex.P1-cheque bearing No.452952, dated:03.02.2010 for sum of Rs.4 lakhs?
3) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
4) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : In the Negative Point No.4 : As per final order, for the following:Judgment 6 C.C.21730/2010
REASONS
10. POINT NOs.1 to 3: Since these three points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
PW.1 apart from filing the affidavit evidence, by reiterating the complaint averments and got marked Exs.P1 to P8, which are:
a) Ex.P1 is the cheque bearing No.452952 issued by the accused for sum of Rs.4 lakhs, dated:03.02.2010 drawn on Centurion Bank, Cunningham Road, Bengaluru.
b) Ex.P1(a) is the signature of accused.
c) Ex.P2 is the Bank Memo dated:05.02.2010.
d) Ex.P3 is the Legal Notice dated:26.02.2010.
e) Ex.P4 is the UCP Receipt.
f) Ex.P5 is the Postal receipt.
g) Ex.P6 is the Postal Acknowledgment Card received by one N.Nagarathna in the alleged address of the accused.
h) Ex.P7 is the private complaint.
i) Ex.P8 is the questioned lease agreement dated:
14.05.2009.
j) Ex.C1 is the particulars issued by the Public Information Officer of Sub-Registrar Officer, Kengeri regarding the particulars of fee collected in the office of sub-registrar.
k) Ex.C2 is the certified copy of Form-A. Judgment 7 C.C.21730/2010
l) Ex.C1(a) is the report submitted by the sub-registrar office, Kengeri, Bengaluru dated:17.07.2013.
11. The accused also produced and got marked the documents by way of confrontation, in view of admission made by PW.1 as executed Exs.D1 to D7, which are:
a) Ex.D1 is the alleged bank challan counter foil datedc:12.02.12.02.2005.
b) Ex.D2 is the certified copy of registered mortgage deed dated:22.12.2004.
c) Exs.D3 and D5 are the certified copies of order sheet, plaint and written statement pertaining to O.S.No.2865/2009, the suit filed by the complainant against the State Bank of Hyderabad and another.
d) Ex.D6 is the certified copy of application filed by the State Bank of Hyderabad against the complainant herein before the Debts Recovery Tribunal.
e) Ex.D7 is the certified copy of report on the scrutiny of application
f) So also through the PW.1 the memorandum of deposit of title deed is marked as Ex.S1 and S2.
12. On behalf of the accused choosen to examined two witnesses, who are none other than Sub-Registrar of Kengeri as DW.1 in regard to the genuineness of the mortgage deed at Ex.P8 as well Ex.C1(a) and in regard to proving the genuineness of Ex.D1, letter issued by the Karnataka State Registration and Stamps Department officials, Multipurpose Co-operative Society Ltd., got Judgment 8 C.C.21730/2010 examined its retired district registrar and president of the said society as DW.2. It is significant fact to note that, the DW.1 and 2 were not subjected to cross-examination by the advocate for the complainant, thereby, they made the evidence of DW.1 and 2 coupled with relating documents at Ex.C1(a) and Ex.P8 is unchallenged. Therefore, to solely relied upon the evidence of DW.1 and DW.2 there is not counter evidence put forth by the complainant.
It is worthy to cite that the decision reported in 2008 AIR SC 738 (Krishna Janardhan Bhat v. Dattatraya G. Hegde). Wherein, the Hon'ble Apex Court was pleased to held that:
"The provisions under Section 139 has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Judgment 9 C.C.21730/2010 Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same".
"The courts must be on guard to see that merely on the application of presumption as contemplated under Section 139, the same may not lead to injustice or mistaken conviction".
13. On going through the said dictum, it reveal that, the provision under Section 139 of Negotiable Instruments Act is introduced to regulate the growing business and trade in day to day business. On going through the said dictum, it is clear that, based upon Ex.P1-cheque the complainant brought the present case. No doubt, if the accused has not contested the claim of the complainant definitely, the presumption required under Section 139 as well as Section 118 of Negotiable Instruments Act can drawn in usual course. Contrary to the same, the accused from the day of his appearance has resisted the very claim put forth by the complainant. The accused totally denied the borrowing of alleged loan of Rs.4 lakhs from the complainant as well as issuance of Ex.P1-cheque for its repayment. Apart from the accused has denied the very claim of the complainant got relied upon Ex.S1, Ex.C1, C1(a), Ex.D1 to D7. Judgment 10 C.C.21730/2010 Therefore, as per Section 139 of Negotiable Instruments Act, it is the reverse burden casted upon the complainant to prove her case in accordance with the Section 138 has set out in the above dictum. In view of the said dictum as well as the defence taken by the accused harping on the very claim of the complainant, the presumption on Ex.P1-cheque cannot be automatically drawn that, it was issued for discharging antecedent liability.
It is well worthy to cite the another decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".
14. On going through the said dictums, it made clear that, in view of the strong denial of the very transaction put forth by the complainant based on Ex.P1 to P8, it is the complainant has to prove her case beyond the reasonable doubt.
Judgment 11 C.C.21730/2010
15. On going through the very contention of the complainant, she has contented that, she lent sum of Rs.4 lakhs to the accused in the month of February, 2010. It is pertaining to note that, either in the legal notice or in the complaint, not narrated the date when exactly she paid the said money. Therefore, it is just and proper to rely on the evidence of PW.1.
16. During the course of cross-examination of PW.1, she categorically deposed that, "£Á£ÀÄ DgÉÆæUÉ d£ÀªÀj ªÉÆzÀ®£ÉAiÀÄ ªÁgÀ 2010£Éà E¸À«AiÀÄ°è EgÀ§ºÀÄzÀÄ, DzÀgÉ ¤¢üðµÀÖªÁV £À£ÀUÉ UÉÆwÛ®è. £Á£ÀÄ DgÉÆæUÉ ºÀt PÉÆmÁÖUÀ £Á£ÀÄ, DgÉÆæ ªÀÄvÀÄÛ CªÀgÀ vÁ¬Ä ¸ÀܼÀzÀ°è ºÁdjzÀÝgÀÄ. £Á£ÀÄ DgÉÆæUÉ AiÀiÁªÀÅzÉà ºÀt PÉÆnÖgÀĪÀÅ¢®è JAzÀgÉ ¸ÀļÀÄî".
17. On going through the 2nd day cross-examination, she clarified in confusion state of mind that, earlier stated on 02.03.2010 gave the money, but further deposed that, on 03.02.2010. Since, the PW.1 consciously deposed before this court, the subsequent volunteer clarification made by her has to be to accepted. On 03.02.2010, she alleged to be paid the money. As per her own say, she mobilized the fund by way of leased out her house as per Judgment 12 C.C.21730/2010 Ex.P8. Out of the leased out amount received by her as per Ex.P8, she gave the said money to the accused. From the evidence of PW.1, it also discloses that, some of the questions posed by the accused was registered by her stating that, it is her personal matter. On going through the cross-examination of PW.1 through out it discloses that, she is adamant lady and inspite of answering the questions posed by the advocate for accused relating to the monetary transaction alleged to be made by her, but for the best reasons known to her has resisted by her and unnecessary made the grounds for made marathon cross-examination. Any how, it is the complainant has to prove the very financial transaction put forth by her.
18. On going through the testimony of PW.1, it made clear that, as per Ex.P8 she mobilized the funds and gave it to the accused on 03.02.2010. Therefore, the Ex.P8 is the crucial document, wherein, the complainant has to demonstrate she accumulated the money.
19. Though, the complainant has contended that, as per Ex.P8, she mobilized the funds of Rs.4 lakhs and handed over the loan to the accused, the said aspect is not disclosed in the legal notice, complaint and her affidavit. No doubt, the accused in this case has Judgment 13 C.C.21730/2010 strongly harping on the genuineness of the Ex.P8. During the course of cross-examination of PW.1, the PW.1 relied upon the lease deed, she deposed that, against the term of lease of 3 years, she deposed the lease period was two years. If, it was 3 years and received the money of Rs.4 lakhs, she should remember what was the lease period. Contrary to the lease period, she falsely deposed that lease period was 2 years. Thereby, it created suspicious regarding genuineness of the lease deed. Apart from that, in her cross-examination she also admitted that, except the lease transaction at Ex.P8 she has no other transaction with the lessee by name Bhagaraj.M.J. In her further cross-examination she deposes that, the said Bhagaraj.M.J was franking the Ex.P8 and same has been prepared by him. She deposed that, when she displayed the board offering her house for rent, then the said Bhagaraj.M.J came forward to take on lease and he, himself franking on Ex.P8 and on Ex.P8 it is mentioned that, Kengeri Sub-Registrar Officer. The accused has denied that, the said document was not franking before the Sub-Registrar Office, but the PW.1 deposes that, the said Bhagaraj.M.J got franked the same. On meticulous reading of Ex.P8, it discloses that, it is franking in the Sub-Registrar Office and the same was franked by paying Rs.100/- in the Sub-Registrar Judgment 14 C.C.21730/2010 Office. The said document discloses that, it is not a stamp paper, but it is the document sheet issued by the government in the form of "dÆ" "£À". The said document discloses that, the execution dated:04.05.2009. The accused has contended that, the said document got prepared by the accused for suit her convenience. The PW.1 has not specifically deposed, how she came to possession of the Ex.P8 dated:14.05.2009, which was to be in the custody of Bhagaraj.M.J. On meticulous reading of the said document, the said Bhagaraj.M.J signature is not found in page No.1 and 2 in the series of "dÆ" document, but his signature found in the page No.3 of document sheet which is in the series "£À". The said document is challenged by the accused, therefore, he wrote the letter to the secretary of Karnataka Registration Department, Employees Multipurpose Co-operative Society on 15.02.2013 as per Ex.D1. As per Ex.D2, the said society issued reply to the accused stating that, the document sheet for the series "dÆ" was released from the date of 06.08.2011 and the document sheet which is mentioned as "£À" was released from the date of 16.01.2007 to the market. From which, it made clear that, the document sheet as per of Ex.P8 was released on or after 06.08.2011 and the 2nd Judgment 15 C.C.21730/2010 document sheet of Ex.P8 was released on 16.01.2007. To substantiate the genuineness of the report given by the said society the accused choosen to examine its former president who gave the letter as DW.2. The said letter at Ex.D2, clearly manifest that, the stamp paper page No.1 was issued on the subsequent year 2011 and the same paper in page No.2 was issued in the year 2007. If at all, really the complainant was executed any release deed in favour of the Bhagaraj.M.J on 14.05.2009, how it possible to wrote on the 1st sheet of document which got supplied to the market in the year 2011, it creates doubt. The said document at Ex.P8 from the point of the report given by the concerned authority as per Ex.D2 who supplied the document sheet to the market clearly manifest that, the accused got created the subsequent document sheet for convince of her case in order to mislead the court and make wrongful gain. The very act of the complainant is condemned as she misused the public precious time for falsely projecting her case.
20. The PW.1 deposes that, the said Bhagaraj.M.J was handed over the said Ex.P8 document, how can she possess the said document and the said Bhagaraj.M.J made franking of the said document sheet not choosen to examined him for the best reasons Judgment 16 C.C.21730/2010 known to her is also one of the suspicious circumstances to disbelieve her contention and genuineness of Ex.P8.
21. In the notice as well as complaint, the complainant has contended that, to meet out the family necessity the accused borrowed the loan of Rs.4 lakhs in the month of February, 2010. Wherein, she not specified the reason why the accused asked the money. But she specifically contended that, on the receiving of the said money, the accused got issued the cheque dated:03.02.2010. The complainant not specified the reason for borrowing the loan even when the accused demanded the said loan. The said notice and complaint as well as affidavit evidence also not discloses exactly on which date the accused borrowed the loan. But, she specifically contended that, for the repayment of the said loan on the date of borrowing the accused got issued the cheque dated:03.02.2010. From the reading of the events, it clearly manifest that, cheque dated is 03.02.2010. If, the complainant was lent the loan to the accused, at the most it could have on 01.02.2010. Can one person, for the period of 2 days borrow the loan of Rs.4 lakhs and for its repayment can issue the cheque at Ex.P1 is highly improbable. If, the accused borrowed money in the Judgment 17 C.C.21730/2010 month of February, 2010, it not more than the date 1st or 2nd. Any prudent man can borrow the loan of Rs.4 lakhs, at least for the period of 2 days and issued the said cheque is highly not believable. Contrary to the pleadings in her affidavit, the PW.1 has stated that, the accused borrowed the loan for meet out the urgent domestic needs and construct the house. If, such being the fact definitely, she could have cited the same in her pleadings, but not did so, the said reasons are subsequent development. If, paid the money for domestic needs or construct a house, can she expect to return within 2 days from the date of alleged time issued the Ex.P1-cheque is created doubt in regarding the genuineness of the very transaction. The accused through out the case, has harping on the very financial capacity of the complainant. During the course of cross- examination, she should depose either regarding borrowing of loan or denial for construction of her house, but she recklessly answered in the cross-examination relevant portion runs thus:
"ªÀÄ£É PÀlÄÖªÀ GzÉÝñÀPÁÌV £Á£ÀÄ State Bank of Hyderbad, Jayanagar Branch, Bengaluru £À°è 10 ®PÀë gÀÆUÀ¼À£ÀÄß ¸Á® vÉUÉzÀÄPÉÆArzÉÝ£ÀÄ JAzÀgÉ ¸ÀļÀÄî. State Bank of Hyderbad Judgment 18 C.C.21730/2010 ¨ÁåAQ£À «gÀÄzÀÞ £Á£ÀÄ MAzÀÄ zÁªÀ ºÁQzÉÝÃ£É JAzÀgÉ D «µÀAiÀĪÀÅ £ÀªÀÄä ªÀQîjUÉ w½¢zÉ, £À£ÀUÉ w½¢®è".
22. From reading of the above testimony of PW.1, she denied as false the borrowing of loan for construction of house from State Bank of Hyderabad, Jayanagar Branch, Bengaluru for the tune of Rs.10 lakhs. But, she answered the suggestion of advocate for the accused that, against the State Bank of Hyderabad she filed a suit, but she answered recklessly that, she does not know, but her counsel knew. From the above conduct of the complainant shows that, she is not discloses the truth, though filing of the suit by her suggested, she deposed falsely. Then, what extent she deposes truly is to be seen.
23. The PW.1 in her cross-examination has admitted that, while the father of the accused took the loan from KIADB Bank, Hanumanthanagar Branch, for the tune of Rs.4 lakhs for construction of house, she does not know the said fact, but deposed that, at the time of opening the bank account, she singed the paper as introducer. The PW.1 in her further cross-examination deposed that, Judgment 19 C.C.21730/2010 "DzÁAiÀÄ E¯ÁSÉAiÀĪÀgÀÄ £À£ÀUÉ Permanent Account Number PÉÆnÖzÁÝgÉ, DzÀgÉ D £ÀA§gï ºÉüÀ®Ä £À£ÀUÉ £É£À¦®è. DzÀgÉ D PÁqïð £À£Àß §½ EzÉ. 2005£Éà E¸À«AiÀÄ°èAiÉÄà £À£ÀUÉ PAN PÉÆnÖzÁÝgÉ. £À£ÀUÉ MAzÀÄ wAUÀ½UÉ 6 - 7 ¸Á«gÀ gÀÆ ¨ÁrUÉ §gÀÄvÀÛzÉ. ¸ÀzÀj dgÀUÀ£ÀºÀ½îAiÀÄ°è EgÀĪÀ PÀlÖqÀzÀ°èAiÉÄà £Á£ÀÄ ªÁ¸À EzÉÝãÉ. £Á£ÀÄ ªÁ¸À EgÀĪÀ ªÀÄ£ÉAiÀÄ£ÀÄß ©lÄÖ, G½zÀ Portion UÀ½AzÀ MAzÀÄ wAUÀ½UÉ 6 jAzÀ 7 ¸Á«gÀ gÀÆ ¨ÁrUÉ £À£ÀUÉ §gÀÄvÀÛzÉ. £À£ÀUÉ d«ÄãÀÄUÀ¼ÀÄ EªÉ. £À£Àß «gÀÄzÀÞ ºÀ®ªÁgÀÄ d£ÀgÀÄ Qæ«Ä£À¯ï PÉøÀÄUÀ¼À£ÀÄß ªÀiÁrzÁÝgÉ JAzÀgÉ ¸ÀļÀÄî."
The PW.1 further deposed that:
"R.K.Jewellers £À ªÀiÁ°ÃPÀgÁzÀ dAiÀÄPÀĪÀiÁgï J£ÀÄߪÀªÀgÀÄ £À£Àß «gÀÄzÀÝ 420 IPC CrAiÀÄ°è MAzÀÄ Qæ«Ä£À¯ï Complaint C£ÀÄß PÉÆnÖzÁÝgÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. dAiÀÄ£ÀUÀgÀ ¥ÉÇðøï oÁuÉAiÀĪÀgÀÄ £À£ÀߣÀÄß PÀgɹ «ZÁgÀuÉ ªÀiÁrzÁÝgÉÆà ºÉÃUÉ JAzÀgÉ ªÀiÁrgÀĪÀÅ¢®è. CzÉà jÃw Furniture CAUÀrAiÀÄ£ÀÄß ElÄÖPÉÆArgÀĪÀ ¸À°ÃA JA§ ªÀåQÛAiÀÄÄ ¸ÀºÀ £À£Àß «gÀÄzÀÞ ¥ÉÇð¸ÀjUÉ zÀÆgÀÄ PÉÆnÖzÁÝgÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. £À£Àß «gÀÄzÀÝ D jÃw ªÀiÁqÀ¯ÁVzÀÝ Criminal Case UÀ¼À£ÀÄß ¥ÉÇð¸ÀgÀÄ vÀ¤SÉ ªÀiÁr £À£Àß «gÀÄzÀÞ CAwªÀÄ ªÀgÀ¢AiÀÄ£ÀÄß ¸ÀºÁ ¸À°è¹zÁÝgÉ ªÀÄvÀÄÛ D PÉøÀÄUÀ¼À Judgment 20 C.C.21730/2010 ¸ÀASÉåB Cr.No.807/10 & Cr.No.553/2012 DVzÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è".
The PW.1 further deposed that:
"eÉ.¦.£ÀUÀgÀ ¥ÉÇð¸ï oÁuÉAiÀÄ°è MAzÀÄ ªÉÆøÀUÁgÀgÀ ¥ÀnÖ JA§ÄzÁV MAzÀÄ ¥Às®PÀ ºÁQzÁÝgÉ ªÀÄvÀÄÛ CzÀgÀ°è £À£Àß ¥ÉÇÃmÉÆà ªÀÄvÀÄÛ £À£Àß ºÉ¸ÀgÀ£ÀÄß ¸ÀºÁ ºÁQzÁÝgÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. FUÀ ¸ÁQëUÉ MAzÀÄ Memorandum of Deposit of Title Deeds JA§ vÀ¯É §gÀºÀ EgÀĪÀ zÁR¯ÉAiÀÄ ¥ÉÇÃmÉÆà ¥ÀæwAiÀÄ£ÀÄß vÉÆÃj¹ £ÀAvÀgÀ ªÀQîgÀÄ EzÀgÀ°è EgÀĪÀ MAzÀ£Éà ¸ÁQëAiÀÄ ¸À»AiÀÄ£ÀÄß vÉÆÃj¹, £ÀAvÀgÀ EzÀÄ AiÀiÁgÀ ¸À» DVzÉ JA§ÄzÁV ¥Àæ±Éß PÉýzÁÝgÉ, CzÀPÉÌ ¸ÁQëAiÀÄÄ vÀªÀÄä ¸À» DVgÀĪÀÅ¢®è JA§ÄzÁV £ÀÄr¢zÁÝgÉ. F ¸ÁQëAiÀÄÄ F zÁR¯ÉAiÀÄ£ÀÄß M¦àPÉƼÀîzÉ EgÀĪÀ PÁgÀt¢AzÀ ILR 1999 KAR 4634 Between Puttamma V/s. Amarnath ¥ÀæPÀgÀtzÀ°è «µÀ¢üÃPÀj¹gÀĪÀ PÁ£ÀƤ£À CA±ÀzÀAvÉ F zÁR¯ÉAiÀÄ£ÀÄß PÉêÀ® Identification GzÉÝñÀPÁÌV ¤±Á£É J¸ï-1 JAzÀÄ UÀÄgÀÄw¹zÉ."
24. On going through the above testimony of PW.1, it made clear that, the complainant has PAN Card, but she did not remember the same. Whether, she is submitting returns including made mentioned the alleged loan given to the accused is or not, she not explained anything. Though, she contended that, she has collecting Judgment 21 C.C.21730/2010 monthly rent of Rs.6,000/- to Rs.7,000/-, she not choosen to produce any document. The PW.1 also contended that, she has landed property, but show that, she has accrued income in that regard also not produced any documentary evidence.
25. Apart from that, the conduct of the accused has to be seen. Though, there was suggestion made regarding filing of criminal cases by the so many people among them few of names were suggested as Jayakumar, Saleem. But, the complainant has intelligently answered she does not know about the filing of 420 cases against her, wherein, she made investigated by the concerned police and filing of charge sheet. The PW.1 also state that, she does not know her photo was displayed in the J.P.Nagar Police Station state as cheats list. Apart from that, she also very cleverly denied the signature of her as found in Ex.S1, which is none other than the memorandum of deposit of title deed. On going through the Ex.S1, the said document was executed by the father and mother of the accused along with the accused, towards the PÀ£ÁðlPÀ gÁdå PÉÊUÁjPÁ ¸ÀºÀPÁgÀ ¨ÁåAPï ¤AiÀÄ«ÄvÀ dated:02.08.2003. Wherein, it also discloses the signature of the complainant. The complainant for the best reasons known to her has denied her signature though Judgment 22 C.C.21730/2010 much earlier she came to know the accused and his family. Unless, knowing the accused family, how she came forward to affixed her signature to the registered document at Ex.S1. The denial of signature at Ex.S1 including the cases were filed against her discloses that, the complainant not approached this court with clean hands.
26. With regard to the loan transaction, the PW.1 in her cross- examination has contended that, "£Á£ÀÄ State Bank of Hyderabad £À°è AiÀiÁªÀÅzÉà ¸Á® ¥ÀqÉzÀÄPÉÆAr®è. ¸ÀzÀj ¨ÁåAQ£À°è £À£ÀUÉ SÁvÉ EzÉ. £Á£ÀÄ State Bank of Hyderabad £À°è £ÀªÀÄä D¹ÜAiÀÄ£ÀÄß ¢£ÁAPÀB27.12.2004 gÀAzÀÄ CqÀªÀiÁ£À ªÀiÁrzÉÝÃ£É JAzÀgÉ ¸Àj." In the further cross-examination of PW.1, she deposed that, "DgÉÆæAiÀÄ §½ £Á£ÀÄ SÁ° ¸À» ªÀiÁrzÀ ZÉPÀÄÌUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆArzÉÝ£ÀÄ JAzÀgÉ ¸ÀļÀÄî. J¸ï.©.ºÉZï. ¨ÁåAQ£À°è £Á£ÀÄ £À£Àß D¹ÛAiÀÄ£ÀÄß CqÀªÀiÁ£À ªÀiÁr CzÀjAzÀ §AzÀ ºÀt¢AzÀ £Á£ÀÄ DgÉÆæUÉ ¸Á® PÉÆnÖzÉÝãÉ."
27. From the earlier portion it made clear that, on the one stretch the PW.1 denied the borrowing loan from State Bank of Judgment 23 C.C.21730/2010 Hyderabad, but on the other hand she admitted that, she had an account in the said bank and wherein, on 27.12.2004 she mortgaged her property. If at all, no loan was borrowed, why she has mortgaged the said property is not explained by her.
28. At another breath, she deposes that, she has taken blank signed cheque from the accused is false, but she contended that, by borrowing loan from State Bank of Hyderabad on the mortgage of her property she gave the loan to the accused. On going through the above two piece of testimony of PW.1, though earlier part she deposed by leased out the property to one Bhagaraj.M.J gave the money, but in her further cross-examination she deposes that, on mortgaging the property to the State Bank of Hyderabad on 27.12.2004, she gave the money to the accused. But, the complaint or legal notice as well as affidavit does not discloses the said fact. But in the present complaint, she came up with specific allegation of lent the money in the month of February, 2010, but the said transaction was about 6 years back she borrowed the loan, but how she retained that amount inspite of she, herself suffering from so many allegations is not properly explained by her. From the evidence of PW.1, it made clear that, either from mortgaging the Judgment 24 C.C.21730/2010 loan on 27.12.2004 or the created documents at Ex.P8 she not gathered any money, therefore, she lend money to the accused is false.
29. Apart from that, the PW.1 admitted that, she filed the forged case against the Manager of State Bank of Hyderabad, but she contended that, since he troubled her, she filed the said case. When she borrowed the loan and filing the case against the concerned bank discloses that, she in order to resist the recovery used the court as media for her acts.
30. During the course of her cross-examination with regard to the Ex.P1 cheque, she discloses that, "ªÀÄĤgÁdÄ gÀªÀgÀ vÀAzÉUÉ J¸ï.©.ºÉZï. ¨ÁåAPï£À°è SÁvÉ EvÀÄÛ. 2006£Éà E¸À«AiÀÄ°è ªÀÄĤgÁdÄ gÀªÀgÀÄ SÁ° ZÉPÀÄÌUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ CzÀ£ÀÄß 2010£Éà EvÀ«AiÀÄ°è §¼À¹PÉÆAqÀÄ F jÃw DgÉÆæAiÀÄ ªÉÄÃ¯É ¸ÀļÀÄî PÉÃ¸ï ªÀiÁrzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. ZÉQÌ£À°èAiÀÄ §gÀªÀtôUÉAiÀÄÄ DgÉÆæAiÀÄzÀ¯Áè JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è."
31. On going through the said testimony of PW.1, it also made clear that, the father of the accused had account in State Bank of Hyderabad bank and in the year 2006 the complainant took the Judgment 25 C.C.21730/2010 signed blank cheque from the accused and got filed the false case against him, and she has denied the suggestion that, the writing made in Ex.P1-cheque is not of accused, but she state, she does not know. If at all, the accused filled the said cheque, she has to reassert the said fact, but deposes she does not know who wrote the same. The very act of the PW.1 discloses that, though there was no monetary transaction between the complainant and accused as alleged by her, from the un-knowing source, she gathered Ex.P1- cheque and filed the false case. Even, in further cross-examination, she contradict to her own pleadings as well as earlier statement she deposes that, "¸ÀĪÀiÁgÀÄ 2 ªÀÄvÀÄÛ 3 wAUÀ½AzÀ DgÉÆæ £À£ÀUÉ ºÀt PÉüÀÄwÛzÀÝ. DzÀgÉ ¢£ÁAPÀ £É£À¦®è. ºÀt PÉÆlÖ £ÀAvÀgÀ 4 jAzÀ 5 wAUÀ¼À £ÀAvÀgÀ ºÀt ªÀÄgÀ½ PÉÆqÀÄ JAzÀÄ DgÉÆæUÉ PÉýgÀÄvÉÛãÉ."
32. On going through the said testimony of PW.1, about the 2nd and 3rd month, the accused demanded money, but when she at the time of gave the money to him, she told him that after 4 to 5 months returned the said money. If, she gave the money to repay within 4 to 5 months definitely, why she filed the present complaint stating that, in the month of February, 2010 1st week she gave the Judgment 26 C.C.21730/2010 money and cheque dated:03.02.2010 was issued within the span of 2 days is highly unbelievable. The very testimony of PW.1 through the case is contradicts her own pleadings and it discloses that, in order swindle the money from the accused, she filed the case. Apart from creating Ex.P8 lease document as discussed above, she choosen to produced the Ex.D1. On meticulous reading of the Ex.D1, it clearly discloses that, the account number and the name of the remitter to the State Bank of Hyderabad is tampered. On close reading of the said counter foil challan, it discloses that, the name of the Krishnaveni has over written by the complainant by mentioning as Krishnappa.M. The said over written of the challan discloses that, the complainant is ready to do anything in order to grab the money from the complainant. The Ex.D1 is also prima facie discloses her name has been over written by substituting the name of the father of the accused. Why, the complainant has taken that much pain is not properly explained by her. During the course of trial, the complainant and her counsel remained absent, none has represented the case. The accused by producing convincing effective documents clearly established and conduct of the complainant that, though the accused has not borrowed any loan as alleged by the complainant, based on created document and Judgment 27 C.C.21730/2010 obtained the cheque from un believable source, filed the false case against the accused. Not only filing the false case, but she made misused the court as machinery for satisfaction her unwanted demand by misusing the precious public time. Even, un-necessarily made the accused to rust the court of law by appointing counsel and prosecute the matter. The complainant lodged the present case on 30.03.2010. Therefore, very conduct of the complainant is to be condemned in prosecuting the manner unknown to the liability, therefore, the very act of the complainant has to be deprecated by imposing cost by invoking cost under Section 250 (2) of Cr.P.C. If, this kind of litigation is not nip in the bud definitely, the person like complainant would misuse the Negotiable Instruments by using the court machinery for the satisfaction of their illegal thrust. Therefore, the conduct of the complainant has to be deprecated. Apart from acquitting the accused, the fine has to be imposed on the complainant at Rs.10,000/-. If, the complainant fails to pay the said sum within appeal period, then, it may be recover as land revenue even by using coercive steps. If, that is done it will meet the ends of justice and massage to the people like complainant who misused the cheque and court for her own satisfaction. Judgment 28 C.C.21730/2010
33. In the case on hand, the accused has clearly made out a probable case in respect of his non-liability to pay the cheque amount mentioned in Ex.P1 and that, the cheque Ex.P1 was actually issued for security in respect of a land transaction.
In a decision reported in 2010 (2) DCR 80 Karnataka High Court (Matheson Bonsanquet V/s. K.V.Manjunatha). Wherein the Hon'ble Court held that:
"In a criminal case, the complainant has to prove beyond the reasonable doubt in his case against the accused as alleged in his complaint but not a case which is contrary to one alleged in the complaint. Further, it is also held that, cheque was issued as security for performing his part of contract entered into between himself and the complainant and further it is also not the case of the complainant that, the accused did the breach of contract then no offence arises under Section 138 of Negotiable Instruments Act".
The principle of law laid down in the above decision is aptly applicable to the case on hand.
In a decision reported in ILR 2006 KAR 3579, (M/s. Sathavahana Ispat Ltd., V/s. Umesh Sharma and another). Wherein, the Hon'ble High Court of Karnataka clearly held that: Judgment 29 C.C.21730/2010
"The cheque issued in respect of uncertain future liabilities would not attract prosecution under Section 138 of Negotiable Instruments Act, though the right to recover the amount in a Civil Forum will not get affected".
The principle of law laid down in the above decision is also applicable to the facts of the case.
Further in a decision reported in ILR 2008 KAR 4629 (Shiva Murthy V/s. Amruthraj). Wherein, the Hon'ble Court held that:
"On the date of the cheque, if no consideration was paid or if a loan was taken on a particular date and in discharge of the same the cheque was issued on the later date, then the presumption under Section 118(a) of the Negotiable Instruments Act stands rebutted".
34. The principles of law laid down in the above decisions also applicable to the facts of the case. In the instant case, as appreciated above, it clearly manifested that, without any obligation from the side of the accused, as well as without narrating proper grounds, as to how, accused is liable to pay amount covered under the cheque alleged to be issued by the accused is also not demonstrated by the complainant satisfactorily. On the contrary, it can presume that, the said cheque was possessed by the complainant from the unexplainable source, and falsely projected Judgment 30 C.C.21730/2010 the case and failed to prove the same. Hence, there is no question of drawing presumption under Section 118(a) or 139 of the Negotiable Instruments Act, even though the signature in Ex.P1 is admitted by the accused. Just because, the cheque bares the signature of the accused, that, will not mandate the court to draw the presumption under Section 118 of Negotiable Instruments Act.
At this stage, this court relies upon the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
"Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
35. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheque bares his signature that does not mean that, the accused issued cheque in discharge of a legally payable debt. Judgment 31 C.C.21730/2010
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act - Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
36. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.4lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act. Judgment 32 C.C.21730/2010
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
37. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, he is not liable to pay Ex.P1 cheque amount of Rs.4lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and he is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken his defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.4lakhs. Judgment 33 C.C.21730/2010 Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Apart from that, in a decision reported in, KCCR 12 (3) page 2057, the Hon'ble Apex Court held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
38. In the case on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show his financial capacity to lend an amount of Rs.4 lakhs to accused. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheque for discharge of Rs.4 lakhs does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.4 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 34 C.C.21730/2010
39. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Ex.P1 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
40. Basically, insertion of the penal provision under Section 138 of the Negotiable Instruments Act, 1881, is to maintain a healthy business transaction between the people based on faith, belief and understanding. That is why; the drawer of a cheque should not be allowed to abuse the accommodation given to him by a creditor. At the same time, the payee or holder of a cheque cannot be permitted to use that, penal provision under law as a weapon for unlawful gain or to harass the debtor. To initiate a penal action under Section 138 of Negotiable Instruments Act, against a drawer of cheque, there should not be any kind of lapse or lacuna on the part of the holder of a cheque. Because, the proceedings under Section 138 of Negotiable Instruments Act is not for recovery of money, but to punish a dishonest and incredible debtor, who intentionally tries to escape from his liability. That is why; it is the duty of the Judgment 35 C.C.21730/2010 complainant in a given case under the Negotiable Instruments Act, 1881, to place a stable and firm case on his behalf before the court. When the case of the complainant itself is shaky, unstable, untrustworthy and doubtful one, then in the option of this court, presumption that is available under law will come to his help. In the case on hand, the accused has taken several contentions before the court and made out grounds to show that, the case of the complainant is highly improbable.
41. From the careful appreciation material evidence on record, it is very much clear that, without there being any money transaction between the complainant and accused, only with an intention causing harm to the accused, the complainant has lodged the instant complaint before this court and no independent evidence adduced to prove the alleged transaction set up by it, that too, in case like 2010. There is no material piece of evidence produced by the complainant before this court to substantiate it.
42. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Judgment 36 C.C.21730/2010 Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
43. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Section 138 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove is contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.4 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to Judgment 37 C.C.21730/2010 the said transaction. The complainant fails to prove its case beyond all reasonable doubt.
44. As discussed above, it does not required to discuss other thing as the complainant at the inception failed to demonstrate the financial capacity and lending of money to the accused as alleged by her. Therefore, securing the cheque through unexplained source is not ground to recover the said money. The compliance of mandatory provision does not create any liability on the accused to pay the money covered under the cheque. It is the complainant has to establish her case beyond the proof, but the accused has rebutted the statutory presumptions required under Section 118 and 139 of Negotiable Instruments Act. Therefore, it is considered view of this court that, the accused has to be acquitted and there is no bonafide reason in filing the present complaint, the mode adopted by the complainant has to be deprecated by imposing fine of Rs.10,000/-. As discussed above the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 to 3 are Negative.
Judgment 38 C.C.21730/2010
45. Point No.4: In view of my findings on point Nos.1 to 3, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
Further, as per Section 250(2) of Cr.P.C. the complainant without any prima facie grounds made the false allegations against the accused and prosecuted the matter all along, hence, she shall pay the fine of Rs.10,000/- within 30 days. The said fine amount shall be payable to the accused as compensation.
If, the complainant failed to pay the fine within stipulated period, than the same shall be recovered as land revenue.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 7th day of April - 2018) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 39 C.C.21730/2010
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : C.Krishnaveni List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : UCP receipt Ex.P5 : Postal receipt Ex.P6 : Postal Acknowledgment card Ex.P7 : Agreement of lease Ex.C1 : Fee collected details Ex.C1(a) : Letter dtd:17.07.2013 Ex.C2 : Form-A
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
Ex.D1 : Bank challan counter foil
Ex.D2 : CC of registered mortgage deed
Ex.D3 to D5 : CC of order sheet, plaint and written
statement in O.S.No.2865/2009
Ex.D6 : CC of application
Ex.D7 : CC of report
Ex.S1 and S2 : Xerox copies of Memorandum of deposit of
title deed
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 40 C.C.21730/2010
07.04.2018.
Comp -
Accd -
For Judgment
The complainant and her counsel are absent.
No representation. The accused and his counsel are
present.
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
Further, as per Section 250(2) of Cr.P.C. the complainant without any prima facie grounds made the false allegations against the accused and prosecuted the matter all along, hence, she shall pay the fine of Rs.10,000/- to the accused within 30 days.
If, the complainant failed to pay the fine within stipulated period, than the same shall be recovered as land revenue.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.