Bangalore District Court
Sri. Chennigaraya Setty vs Sri. Gajendra G.T on 2 February, 2017
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 2nd day of February, 2017
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No.17510/2014
Complainant: Sri. Chennigaraya Setty
S/o. Late Chennigaraya Settee,
Aged about 68 years,
R/at No.90, 1st Main Road,
Vijayanandanagar,
Nandini Layout,
Bengaluru.
Accused: Sri. Gajendra G.T
Aged major,
R/at No.92, 13th Main,
4th Block, Nandini Layout,
Bengaluru - 560 096.
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found not guilty
Date of order: 2nd February 2017
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act.
2. The brief facts of the complaint that;
The Complainant stated that the Accused was very well known to him from past 2 years and during the December 2012, the accused 2 C.C. 17510/2014 approached the Complainant for a hand loan of Rs.2,75,000/- for his business purpose and agreed to repay the same within 6 month. The Complainant by considering the acquaintance and need of this Accused, had advanced a sum of Rs.2,75,000/- to this Accused.
3. It is further submitted by the Complainant that the Accused after receipt of the loan amount has failed to repay the loan amount within the stipulated period and on the repeated request and demands of the Complainant, had issued a multi city cheque bearing No.050456, dtd.17/8/2013 drawn on Vijaya Bank, payable at all Core Bank Solution implemented branches with a request to present the said cheque for encashment and it will be honoured on presentation.
4. It is further submitted by the Complainant that by believing the words of this Accused, has presented the said cheque for encashment before his banker APEX Bank, Deepak Sahakari Bank Ltd., Mahalakshmipuram, Bengaluru but the said cheque returned dishonoured with an endorsement "Account closed" on 20.8.2013 and the same was received by the Complainant on 21.8.2013. and informed the same to the accused.
5. He further stated that as the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 24.8.2013 through his advocate by RPAD as well as under 3 C.C. 17510/2014
Speed Post, calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice and the notice sent through Speed Post was duly served upon this accused. The Accused even inspite of receipt of Legal Notice, has neither chosen to make payment of the cheque amount nor he has replied the notice by denying the transaction. The Accused knowing fully well that his account was already been closed, had issued a bogus cheque only with an intention to cheat this Complainant and thereby the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
6. After recording of sworn statement of the complainant the private complaint lodged by the complainant was registered as a criminal case, summons was issued as against the accused. The accused appeared through his counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
7. The complainant himself got examined as PW1 and he got produced 4 documents marked as Ex.P1 to Ex.P4 and closed his side of evidence.
8. After closure of the complainant side evidence, accused Statement u/Sec.313 of Cr.P.C. recorded. The accused denied the incriminating evidence in toto and he intended to lead his evidence. 4 C.C. 17510/2014 The Accused got himself examined as DW1 and he has also examined one witness from his side as DW2 and no documents were marked from his side and closed his side of evidence.
9. I have heard the arguments from both the sides and also perused the records.
10. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
11. My findings to the above point are as under:
Point No.1 : In the negative
Point No.2 : As per final order
for the following:
REASONS:
12. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the complainant stepped into the witness-box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
13. The PW1 deposed that the Accused is well acquainted to him and out of acquaintance, the accused approached him in the month of December 2012 and borrowed a hand loan of Rs.2,75,000/- for his business purpose by agreeing to repay the same within 6 5 C.C. 17510/2014 month. He deposed that subsequently, the Accused failed to repay the loan amount within the stipulated time and on his repeated request and demands, finally the accused had his cheque bearing No.050456, dtd.17/8/2013 drawn on Vijaya Bank, payable at all Core Bank Solution implemented branches with a request to present the said cheque for encashment and it will be honoured on presentation.
14. He further deposed that by believing the words of this Accused, has presented the said cheque for encashment before his banker but the said cheque returned dishonoured with an endorsement "Account closed" on 20.8.2013 and the same was intimated to him by his banker on 21.8.2013 and in turn he informed the same to the accused.
15. He further deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice on 24.8.2013 through his advocate by RPAD as well as under Speed Post, calling upon the Accused to make payment of the cheque amount and the notice sent through Speed Post was duly served upon this accused. He deposed that the Accused even inspite of receipt of Legal Notice, has neither chosen to make payment of the cheque amount nor he has replied the notice by denying the transaction. He deposed that the Accused knowing fully well that his account was already been closed, 6 C.C. 17510/2014 had issued his bogus cheque only with an intention to cheat him and thereby the Accused has committed an offence
16. PW1 in order to prove his case, got produced the original cheque issued by this Accused marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this Accused and he got identified the signature found on the cheque marked as Ex.P1(a). He got produced bank endorsement marked as Ex.P2. He got produced copy of the legal notice along with two RPAD receipts marked as Ex.P.3, Ex.P3(a) and Ex.P3(b) respectively. He got produced the unserved postal cover marked as Ex.P.4. After got opened the postal cover there was nothing in the cover.
17. The Accused has denied the entire case of the Complainant and denied the very fact that he had borrowed a hand loan of Rs.2,75,000/- from this Complainant and he in order to repay the said loan amount, had issued his Ex.P1 cheque and the same was bounced on its presentation for encashment. The Accused had denied the loan transaction and denied his liability to pay the cheque amount. The Learned Counsel for the Accused subjected PW1 for cross-examination and he extensively cross-examined the PW1.
18. PW1 in his cross-examination stated that the Accused was introduced to him by his tenant Smt. Lakshmamma with a request that 7 C.C. 17510/2014 the accused was in need of loan. He stated that the accused requested him to advance a sum of Rs.3,00,000/- as a loan, however he advanced a sum of Rs.2,75,000/- on his request. PW1 stated that he is not remembered the date of loan transaction and even he is not remembered when exactly advanced the loan amount to this accused. PW1 stated that he has no documents with him to prove that he had with him a sum of Rs.2,75,000/- and he advanced the said amount to this accused on his request.
19. PW1 further stated that he has not obtained any documents from this accused for the security of the loan amount of Rs.2,75,000/- and as such, he has no documents with him to prove the loan transaction and also to prove the advancement of loan amount of Rs.2,75,000/- to the accused. PW1 stated that he is a retired employee of the B.E.M.L. and he was not doing money-lending business. He further stated that he has not advanced the loan amount to anybody except this accused. PW1 stated that he is not aware when exactly the accused had issued his Ex.P1 cheque. He further stated on the date of loan transaction, there were no independent witnesses were present on the spot and as such, there is no witness to the loan transaction.
20. Though the accused during the cross-examination of PW1 much has been put to PW1 by denying his liability to pay the cheque amount and also suggested that he has not issued his Ex.P1 cheque 8 C.C. 17510/2014 towards repayment of the loan amount. The PW1 denied the entire suggestions put to him and denied that the accused is not liable to pay the cheque amount. On the contrary, the Accused has not chosen to deny a fact that Ex.P.1 cheque is belong to him. However, he has categorically admitted that the Ex.P1 cheque is belong to him and even admitted his signature found on Ex.P1 marked as Ex.P1(a).
21. Even though the PW1 has stated that he is not an income tax assessee and even he has no documents with him to prove that he had with a sum of Rs.2,75,000/- and he advanced the said amount to the accused. However, he has stated that he is a retired BE.M.L. Employee and he is capable to advance a sum of Rs.2,75,000/- and he advanced the said amount to this accused on his request.
22. The accused has taken up the specific defence that his wife had borrowed a sum of Rs.50,000/- from this Complainant and towards the security of the said loan amount, he had directed the wife of this accused to give her duly signed blank cheque for the security of the loan amount and as his wife was not having her own bank account and even she was not having the cheque book facility, she had issued her husband's duly signed blank cheque for the loan amount of Rs.50,000/- and subsequently, she had repaid the entire loan amount along with interest within a year in a monthly installment of 9 C.C. 17510/2014 Rs.2,500/- and even after receipt of entire loan amount, the Complainant instead of returning the cheque, misused the cheque and demanded for further interest and as this accused has failed to pay further interest, his duly signed blank cheque was misused by this Complainant and filed this false complaint based on the created and concocted cheque. Though the said suggestion was put to PW1 during his cross-examination by suggesting that the wife of this accused was borrowed a sum of Rs.50,000/- from him and as she was not having the bank account in her name and as such, there is no cheque facility to her, she had given the duly signed blank cheque of her husband for the security of the loan amount of Rs.50,000/-.
23. He further denied the suggestion that the wife of this accused was already repaid the entire loan amount of Rs.50,000/- within a year in installments with each installment of Rs.2,500/- and he even inspite of receipt of Legal Notice instead of returning the cheque, misused the cheque and created the cheque for Rs.2,75,000/- and filed this false complaint. PW1 further denied the suggestion that he has not produced the notice dtd.24.8.2013 before this court and even he has not produced any documents before this court for having served the notice to the accused.
10 C.C. 17510/2014
24. Likewise, PW1 denied the suggestion that intentionally he has not produced the documents before this court for having served the notice to the accused. PW1 was not chosen to deny a suggestion that the Ex.P4 - Postal cover returned with a shara of the postman that incomplete address and therefore returned to sender. However, PW1 stated that he has sent to the notice to the address given by this accused and as such, he is not aware of the exact address of this accused. PW1 further stated that he is not aware when exactly the notice was served on this accused. Admittedly, the PW1 in his affidavit evidence has not deposed when exactly the notice was served on this accused and which notice is served on the accused. On the contrary, PW1 himself got produced Ex.P4 unserved postal cover before this court which was sent through Speed Post wherein the notice issued through Speed Post was returned unserved with a shara "insufficient address" and moreover after the postal cover got opened before this court during the stage of examination-in-chief, it was empty. This clearly proves that the PW1 issued Ex.P3 notice without disclosing the correct address and without keeping the notice in the postal cover. Admittedly, no notice was issued to the accused under Ex.P4 and moreover, no notice is served on this accused as required u/Sec.138 (b) of N.I.Act.
11 C.C. 17510/2014
25. PW1 except adducing the oral evidence that he had with him a sum of Rs.2,75,000/- and he advanced the said amount to this accused on his request during the year 2012, has not chosen to prove the same by adducing documentary evidence before this court. PW1 has not chosen to produce his bank statement before this court to prove his financial capacity to advance the huge amount of Rs.2,75,000/- to this accused. Moreover, PW1 has not stated where exactly he kept this amount and how he advanced the said amount under which mode. Likewise, PW1 has not furnished the date of loan transaction. The notice averments as well as the complaint averments and also the affidavit evidence of PW1 is silent with respect to the date of loan transaction and also date of issuance of cheque by this accused. Moreover, the Complainant except adducing the oral evidence that he advanced a sum of Rs.2,75,000/- to this accused on his request and there was a loan transaction in-between them, has not chosen to prove the same by adducing documentary evidence before this court. PW1 has not produced any documents before this court to prove the acknowledgement of debt by this accused and also to prove that as on date of Ex.P1 cheque, there existing a legally dischargeable debt or other liability on this accused and this accused by admitting his liability and in order to discharge his liability, issued his Ex.P1 cheque.
12 C.C. 17510/2014
26. Though he denied the suggestion that he himself for his convenience, written all the contents of Ex.P1 cheque and created the same for Rs.2,75,000/-. However, it is an admitted fact that the notice issued as per Ex.P3 was not served on this accused as per the endorsement of Ex.P4.
27. This clearly establishes that no notice is served on this accused prior to filing of this complaint as required u/Sec.138 of N.I. Act. Even PW1 has not chosen to produce any documents before this court to prove that the notice sent by him as per Ex.P3 was served on this accused and even after receipt of Legal Notice, the accused has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction.
28. Even though the accused has categorically denied the loan transaction with this Complainant, however, he has taken up the defence that his wife had borrowed a hand loan of Rs.50,000/- from this Complainant and for the security of the loan amount, as his wife was not having the cheque book facility she had given his duly signed blank cheque as a security for the loan amount of Rs.50,000/- to this Complainant and subsequently, the Complainant even after receipt of entire loan amount instead of returning the cheque, misused and created the cheque for Rs.2,75,000/- even though there was no any loan transaction in between him with this Complainant. He has also 13 C.C. 17510/2014 taken up the defence that PW1 has no financial capacity to advance the loan amount of Rs.2,75,000/- and even he has not advanced any kind of loan much less Rs.2,75,000/- in his favour. Though the said defence was categorically denied by PW1 during his cross-examination when the same was suggested to him by the learned Counsel for the accused. On the contrary, admittedly, the burden is on this PW1 to prove that he is having sufficient source of income to save huge amount of Rs.2,75,000/- and therefore, he is capable to advance a sum of Rs.2,75,000/- to this accused. In order to prove this fact, the PW1 has not chosen to produce any piece of evidence before this court.
29. PW1 denied the suggestion that he had collected Ex.P1 cheque from the wife of this accused belonged to this accused for the security of the loan amount of Rs.50,000/- borrowed by his wife and subsequently, he by misusing the blank cheque of this accused, created the cheque as Ex.P1 for Rs.2,75,000/- and filed this false complaint even though there was no any loan transaction in-between him with this accused.
30. As I have discussed supra, the accused has not only denied the loan transaction with this Complainant but, he has categorically denied the fact that this PW1 had the financial capacity to advance the huge loan amount of Rs.2,75,000/- in his favour and denied the very 14 C.C. 17510/2014 fact that he in order to repay the loan amount of Rs.2,75,000/-, had issued his Ex.P1. In such situation, the burden is heavily on this PW1 to prove that he had with him a sum of Rs.2,75,000/- and he advanced the said amount to this accused as a hand loan and towards the repayment of the said loan amount, this accused has issued his Ex.P1 cheque. PW1 neither in Ex.P3 notice nor in his complaint averments as well as in his affidavit evidence, has deposed the date of loan transaction. Admittedly, the entire case of the Complainant is silent with respect to date of loan transaction as well as date of issuance of cheque by this accused. Moreover, the PW1 in order to prove the loan transaction and also to prove that in the month of December 2012 he had with him a sum of Rs.2,75,000/- and he advanced the said amount to this accused on his request, has not chosen to produce any piece of document before this court. There is nothing on record to believe that the PW1 had with him a sum of Rs.2,75,000/- and he advanced the said amount in favour of this accused and it is his accounted money.
31. PW1 in his cross-examination further stated that he advanced the huge loan amount of Rs.2,75,000/- without obtaining any documents from this accused and even without insisting this accused to furnish surety and even he has not advanced the loan amount before the witnesses. PW1 failed to convince this court why 15 C.C. 17510/2014 he has not taken any documents for the security of the huge loan amount of Rs.2,75,000/- from this accused.
32. No doubt, the accused during the cross-examination of PW1 put his defence to PW1 by suggesting that his wife had taken the hand loan of Rs.50,000/- from this Complainant and towards the security of the said loan amount, as his wife was not having any bank account in her name, had given a cheque belonged to him in his favour. Though PW1 in his cross-examination denied the suggestion that Ex.P1 cheque was given to him by the wife of this accused as a security towards the loan amount of Rs.50,000/- borrowed by her. On the contrary, admittedly, PW1 has not produced any documents before this court to prove the loan transaction between him with this accused and to prove that he had advanced the loan amount to this accused and towards repayment of the said loan amount of Rs.2,75,000/-, this accused had issued his Ex.P1 cheque.
33. Even though PW1 in his cross-examination denied the suggestion that he has not sent the notice to the correct address of this accused and therefore, no notice is served on him, however, he has categorically admitted that the notice issued as per Ex.P3 was not served on this accused for the reason "insufficient address" and even the Ex.P4 postal cover was empty when it got opened before the court. 16 C.C. 17510/2014
34. PW1 during his cross-examination admitted the suggestion put to him and admitted that the Ex.P3 notice is not personally served on this accused. Even according to PW1, the notice issued by him as per Ex.P3 was not served on this accused. PW1 except adducing the oral evidence that the notice was served on the accused and even inspite of receipt of Legal Notice, the accused failed to make payment of the cheque amount, cannot be acceptable and it holds no merit. In such situation, it can safely be hold that the PW1 has not issued Ex.P3 notice to the correct address of this accused and therefore, no notice is served on this accused.
35. In such situation, the testimony of PW1 that before filing of this complaint, he has issued the statutory notice u/Sec.138 (b) of N.I. Act to this accused, calling upon him to make payment of the cheque amount and this accused even inspite of receipt of Legal Notice, has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction, cannot be acceptable and it holds no merit.
36. Admittedly, the Complainant except adducing the oral evidence, which has been categorically denied by this Accused, has utterly failed to clear all the doubts aroused in the mind of court by adducing cogent and convincing evidence before this court. 17 C.C. 17510/2014 Moreover, the notice issued as per Ex.P3 was also not served on this accused.
37. Admittedly, no notice is served on this accused prior to filing of this complaint. The Complainant has not complied all the mandatory provisions of Sec.138 of N.I. Act before filing of this complaint. Even on this count, the complaint of the Complainant, is not maintainable and it is liable to be dismissed.
38. It is also pertinent to note that the Complainant in this proceedings neither demanded any interest on the loan amount nor he has claimed any interest from this accused on the cheque amount. It is not the case of the Complainant that he advanced the huge loan amount of Rs.2,75,000/- without any interest. Even according to PW1, he advanced the loan amount in the month of December 2012 and Ex.P1 cheque was issued during the year 2013 and this complaint was filed in the year 2013. For all these years, the Complainant has not claimed any interest on the loan amount nor he has claimed any interest even in this proceedings. Even these facts create a very serious doubt in the mind of court about the conduct and capacity of the PW1 to advance the loan amount of Rs.2,75,000/-.
39. As I have discussed supra, the accused has denied the very existence of loan as on date of Ex.P1 cheque. In such situation, the 18 C.C. 17510/2014 burden is heavily on this Complainant to prove the loan transaction and to prove that as on date of Ex.P1 cheque, there existing a legally dischargeable debt or other liability on this accused and this accused by admitting his liability and to repay the loan amount, had issued his Ex.P1 cheque. The Complainant has utterly failed to prove this fact to the satisfaction of the court during the stage of trial. There is no evidence on record to believe that this accused had borrowed the loan amount of Rs.2,75,000/- from this Complainant and he in order to repay the said loan amount, had issued his Ex.P1 cheque and the same was bounced on its presentation for encashment and to believe the testimony of PW1 that as on date of Ex.P1 cheque, there exiting a legally dischargeable debt or other liability on this accused.
40. Admittedly, the Complainant except adducing the oral evidence, which has been categorically denied by this Accused, has utterly failed to clear all the doubts aroused in the mind of court by adducing cogent and convincing evidence before this court.
41. However, the Accused in order to prove his defence and also to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act, got examined himself as DW1. He deposed that his wife on 10.11.2010 borrowed a sum of Rs..50,000/- from this Complainant with an intention to establish a shop for his son and for the security of 19 C.C. 17510/2014 the loan amount, she requested him to issue his cheque and accordingly, he has given his duly signed blank cheque to the Complainant through his wife. He deposed that his wife was paying the loan amount along with interest in installments amounting to Rs.2,500/- and she repaid the said amount for a period of one year and subsequently on 10.12.2012 she repaid the entire loan amount along with interest thereon. He deposed that the Complainant after receipt of the entire loan amount, assured him that he will return the cheque collected towards the security of the loan amount to his wife. He deposed that the Complainant instead of returning his cheque, started demanding more interest amount and he failed to return his cheque.
42. He deposed that there was no any loan transaction in between him with this Complainant and he has not borrowed any kind of loan from this Complainant at any point of time and even he has not issued his Ex.P1 cheque in favour of this Complainant towards repayment of the loan amount.
43. He deposed that the Complainant with an intention to make a wrongful gain for himself, misused his duly signed cheque issued to him by his wife and created the same as Ex.P1 by writing all the contents of the cheque. He deposed that he is not liable to pay the cheque amount to this Complainant. DW1 prays to dismiss the complaint.
20 C.C. 17510/2014
44. No doubt, the learned Counsel for the Complainant subjected DW1 for cross-examination by denying his testimony, however DW1 in his cross-examination denied the entire suggestions put to him and denied that he borrowed a sum of Rs.2,75,000/- from this Complainant for his legal necessities and towards repayment of the said loan amount, had issued his Ex.P1 cheque and the same was bounced on its presentation. Though he admitted the suggestion that he has not produced any documents before this court to prove that his wife had borrowed a sum of Rs.50,000/- from this Complainant and for the security of the said loan amount, she had given his cheque to the Complainant. Likewise, he admitted that he has not produced any documents before this court to prove that his wife had repaid the entire loan amount along with interest thereon in monthly installments of Rs.2500/- and even he has admitted that even inspite of re-payment of the entire loan amount by his wife, he has not sent any notice to the Complainant calling upon him to return his cheque and even he has not initiated any proceedings for misusing of his duly signed blank cheque for the higher amount. On the contrary, he has categorically denied the suggestion that he after receipt of the loan amount of Rs.2,75,000/- from this Complainant, had issued his Ex.P1 and he only with an intention to escape from his liability to pay the 21 C.C. 17510/2014 cheque amount, has created a false story and deposing false before this court.
45. The accused has also examined his wife Smt. Meena as DW2 and even DW2 deposed that she approached this Complainant and borrowed a sum of Rs.50,000/- from this Complainant for the establishment of a shop to her son and for the security of the said loan amount, she has taken the duly signed blank cheque of her husband as she was not having bank account and cheque book facility in her name and subsequently, she repaid the entire loan amount of Rs.50,000/- along with interest on every equal monthly installment amount of Rs.2,500/- to this Complainant and even after receipt of entire loan amount along with interest, the Complainant has not returned the duly signed blank cheque of his husband collected towards the security of the loan amount. She deposed that subsequently, the accused started demanding further more interest amount. She deposed that there was no any loan towards in between her with this Complainant and even her husband is not liable to pay the cheque amount to this Complainant and even DW2 prays to dismiss the complaint.
46. The learned Counsel for the Complainant even subjected DW2 for cross-examination and even DW2 in her cross-examination 22 C.C. 17510/2014 admitted that she has no documents with her to prove that she had borrowed a sum of Rs.50,000/- from this Complainant and towards the security of the said loan amount, she had had given her husband' s duly signed blank cheque. Likewise, she has admitted that she has not produced any documents before this court to prove that she repaid the entire loan amount in every equal monthly installment of Rs.2,500/- each for a period of one year and she repaid the entire loan amount along with interest thereon to this Complainant.
47. However, she has categorically denied the suggestion that her husband after he had borrowed a sum of Rs.2,75,000/- from this Complainant towards repayment of the loan amount, had issued his Ex.P1 cheque in favour of this Complainant.
48. The Complainant except putting some suggestion to DW1 and DW2 that the accused had issued his Ex.P1 cheque in favour of this Complainant to repay the loan amount of Rs.2,75,000/-, which has been categorically denied by DW1 and DW2, nothing has been elicited from their mouth to disbelieve their testimony and to discard their evidence
49. As I have discussed supra, the initial burden is always on this Complainant to prove the existence of debt or liability as on date of Ex.P1 cheque on this accused and to prove that the accused by 23 C.C. 17510/2014 admitting his liability in order to discharge his liability, had issued his Ex.P1 cheque.
50. As I have discussed supra, the Complainant in order to prove this fact, except adducing the oral evidence that he advanced the loan amount of Rs.2,75,000/- to this accused and this accused towards repayment of the amount, had issued his Ex.P1 cheque, has not chosen to prove the same to the satisfaction of the court.
51. As I have discussed supra, the accused by leading oral evidence before this court, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act.
52. The Complainant except adducing the oral evidence that he had advanced the loan amount of Rs.2,75,000/- to this Accused, has not chosen to prove the same to the satisfaction of the court. It is well settled principle of law that the presumption u/Sec.139 of N.I. Act is available to this Complainant only with respect to issuance of cheque for repayment of debt or other liability by this Accused. However, the burden is on this Complainant to prove the existence of debt or other liability as on date of Ex.P.1 cheque to the satisfaction of the court and to prove that he had the financial capacity to advance the loan amount of Rs.2,75,000/- to this Accused.
24 C.C. 17510/2014
53. Here in this case, the Complainant except adducing the oral evidence that he had advanced the loan amount of Rs.2,75,000/- in favour of this Accused and towards repayment of the said amount, the Accused had issued Ex.P.1 cheque, has miserably failed to prove his case to the satisfaction of the court. The Complainant has utterly failed to prove the existence of legally recoverable debt or other liability on this Accused as on date of Ex.P.1 cheque and also to prove that the Ex.P.1 cheque was issued towards the discharge of his liability to repay the loan amount.
54. The learned Counsel for the Complainant has vehemently argued that the Accused has totally failed to prove his defence to the satisfaction of the court that his wife had borrowed only Rs.50,000/- from this Complainant and towards security of the said loan amount, she had given the duly signed Ex.P1 blank cheque belong to him and subsequently, she repaid the entire loan amount along with interest thereon and even after receipt of entire loan amount, the Complainant instead of returning the duly signed blank cheque, misused the same and filed this false complaint even though the accused is not liable to pay the cheque amount by producing documentary evidence before this court. He has argued that the oral evidence of DW1 and DW2 does not prove that this accused had given his duly signed blank 25 C.C. 17510/2014 cheque through his wife to the Complainant for the security of the loan amount of Rs.50,000/- of his wife.
55. He has argued that the entire burden is on this accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act and this accused has utterly failed to rebut the presumption available to this Complainant.
56. He further argued that the accused only with an intention to ran away from his liability to pay the cheque amount, has taken up the false defence before this court during the stage of trial. He has argued that the accused even inspite of knowledge of Legal Notice, issued as per Ex.P3 prior to filing of this complaint, has intentionally avoided to receive the notice and even he has failed to make payment of the cheque amount and therefore, by drawing an adverse inference against the accused, he has to be convicted in accordance with law. The arguments canvassed by the learned Counsel for the Complainant, is not convinced this court and it holds no merit.
57. Likewise, his arguments that Ex.P1 cheque is belong to this accused and even the signature found on the cheque is that of this accused and this accused only with an intention to ran away from his liability to pay the cheque amount and once he admits the issuance of Ex.P1 cheque, he will be held liable for the cheque amount and 26 C.C. 17510/2014 therefore, he has taken up the false defence during the course of trial. There was already a presumption in favour of this Complainant u/Sec.139 of N.I.Act and this accused has utterly failed to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act and therefore, he has to be convicted for the offence u/Sec.138 of N.I Act and he has to be sentenced for imprisonment and also to impose fine, is also not convinced this court and it holds no merit.
58. Here in this case, the Complainant has not issued the Ex.P3 notice to the correct address of the accused by post. Admittedly, the notice issued as per Ex.P3 was not served on the accused and even the Complainant has not produced any documents before this court to prove that the Ex.P3 is duly served upon this accused. Admittedly, the Complainant has failed to prove that the address disclosed in Ex.P3 is the last known address of this accused and he has sent the notice to the correct last known address of this accused. In such situation, the arguments canvassed by the learned Counsel for the Complainant, cannot be acceptable and it holds no merit.
59. On the contrary, the learned Counsel for the accused has vehemently argued that there is no burden on this Accused to prove his defence beyond all reasonable doubts and this accused can very well discharge his burden by preponderance of probabilities and even by cross-examining PW1 and this Accused by cross-examining PW1 27 C.C. 17510/2014 and also by leading his evidence and also by examining his wife as DW2 before this court, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act, is fully convinced this court. Likewise, his arguments that the entire burden is on this Complainant to prove his financial capacity to advance the huge loan amount of Rs.2,75,000/- and to prove that he had advanced the said amount to this accused and towards repayment of the loan amount, the accused had issued his Ex.P1 cheque in favour of this Complainant. The Complainant has totally failed to prove this fact by adducing convincing evidence before this court, is fully convinced this court. His arguments that the Complainant has totally failed to prove that as on date of Ex.P1 cheque, there existing a legally dischargeable debt or other liability on this accused and he by admitting his liability, had issued his Ex.P1 cheque and the same was bounced, is also convinced this court.
60. He argued that the very complaint filed by the Complainant is not maintainable as this Complainant has not complied the all the mandatory provision of Sec.138 of N.I.Act before filing of this complaint. He has argued that complying the provision of Sec.138(b) of N.I.Act is a mandatory provision and unless the notice is served on this accused earlier filing of this complaint well within the period of Limitation, the very complaint filed against the accused for 28 C.C. 17510/2014 the offence punishable u/Sec.138 of N.I. Act is not maintainable, is also fully convinced this court.
61. Admittedly, there is no burden on this Accused to prove his defence beyond all reasonable doubts. The Accused can very well discharge his burden by preponderance of probabilities and he has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act.
62. As I have discussed supra, the Complainant has utterly failed to prove his case and to prove that this Accused has committed an offence punishable u/Sec.138 of N.I. Act. The oral and documentary evidence adduced before this court by the Complainant is not sufficient and convincing to bring home the guilt of the Accused beyond all reasonable doubts. The entire burden is on this Complainant to bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. Unless the Complainant is discharge his initial burden, no burden will shift on this Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I Act. The Complainant has utterly failed to prove that the Accused had committed an offence punishable u/Sec.138 of N.I. Act and therefore, he is liable for punishment. In such situation, the benefit of doubt goes in favour of this Accused. Hence, by taking into consideration the facts and circumstances and evidence available on record, I answer Point No.1 in the Negative.
29 C.C. 17510/2014
63. Point No.2: In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (1) of Cr.P.C., the accused is hereby acquitted for the offence punishable u/Sec.138 of N.I. Act.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 2nd day of February, 2017) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bengaluru ANNEXURE:
Witnesses examined on behalf of the Complainant: PW.1 Mr.Chennigaraya Setty Witnesses examined on behalf of the Accused: D.W.1 Mr. Gajendra G.T. D.W.2 Mrs. Meena.
Documents marked on behalf of the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the Accused
Ex.P.2 Bank endorsement
Ex.P.3 Copy of the legal notice
Ex.P.3(a) & Ex.P3(b) RPAD receipts
Ex.P.4 Unserved postal cover
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore.
30 C.C. 17510/2014