Bangalore District Court
Sri. P. Krishnappa vs Sri. V. Balaraju on 28 May, 2018
C.C.NO.7919/2017
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present: Smt. HEMA PASTAPUR
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 28th day of May 2018
C.C.No.7919/2017
Judgment under section 355 of Code of Criminal Procedure
Complainant : Sri. P. Krishnappa,
s/o Papanna,
Aged about 53 years,
Residing at 'Sri Krishna Nilaya'
Halasinamaridhoddi,
Kanakpura - 562117,
Occupation:- Business.
(By Shri N. Mahendra, Advocate)
V/s
Accused : Sri. V. Balaraju,
s/o Late Venkatesh,
Aged about 29 years,
Residing at:- Behind State Bank of India,
Puttadasara street,
1
C.C.NO.7919/2017
Halasinamaridhoddi,
Kanakpura - 562117,
Occupation:- Business.
(By Shri R. Jagadeesha Reddy, Advocate)
JUDGMENT
That, the complainant has filed the private complaint under section 200 of Code of Criminal Procedure, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the brief facts of the present case are as under:-
1. That, the accused is running his cloth business in the name and style of 'Bombay cut piece' at opposite to Kanakapura Forest office, near Central Bank of India, B. M. road, Kanakapura. That, the accused in the month of February 2016 had approached the complainant for financial assistance and the complainant considering the need of the accused in the third week of February 2016 had advanced him a sum of Rs.5,00,000/-. That, the accused at the time of availing the said loan had agreed to repay the same with an interest at the rate of 18% per annum and to discharge his legally 2 C.C.NO.7919/2017 enforceable debt had issued in favour of the complainant a cheque bearing No.776995 dated:-16.12.2016 for a sum of Rs.5,00,000/-
drawn on Canara Bank, Malavalli branch. That, the complainant on 05.01.2017 had presented the said cheque for encashment in Bharath Co-Operative Ltd., Bank, Jayanagara branch, Bengaluru and on 06.01.2017 the same was returned with the shara as 'Funds Insufficient' in the account of the accused. That, the complainant for the aforesaid acts of the accused on 28.01.2017 had issued the legal notice to him and the same was returned with the shara as 'Not claimed'. That, in view of the same the complainant has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took the cognizance for the offence punishable under section 138 of the Negotiable Instruments Act and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to him. That, the accused in pursuance of said summons appeared before this court through his Learned counsel 3 C.C.NO.7919/2017 and he was enlarged on bail. That, substance of accusation of the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to tried. That, after completion of complainant side evidence the statement of the accused as contemplated under section 313 of the Code of Criminal Procedure, has recorded and read over him and he denied all incriminating evidence appearing against him.
3. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in his favour a cheque bearing No.776995 dated:-16.12.2016 for a sum of Rs.5,00,000/- drawn on Canara Bank Malavalli branch?
2. Whether the complainant has further proved that, the said cheque was dishonoured as 'Funds Insufficient' in the account of the accused and thereby the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act? 4
C.C.NO.7919/2017
3. Whether the complainant has complied with the provisions of section 138(b) of the Negotiable Instruments Act?
4. What order?
4. That, the complainant to substantiate his contentions has deposed himself as PW1 and got marked the documents at EXs.P1 to
7. That, the complainant to strengthen his contentions has got examined Shri K. N. Muniraju s/o Narasimaiah as PW2 and Shri Umakanth C. s/o Late Chikkaveerappa as PW3 and closed his side.
That, the accused to substantiate his contentions has deposed himself as DW1 and got marked the documents at EXs.D1 to 5. That, the accused to strengthen his contentions has got examined Shri Nandish K. R. s/o Raju K. R. as DW2 and closed his side.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the NEGATIVE Point No.2 :- In the NEGATIVE Point No.3 :- In the AFFIRMATIVE Point No.4 :- As:- per the final order for the following:- 5
C.C.NO.7919/2017 REASONS
6. Point No.1:- It is specific contention of the complainant that, the accused in the month of February 2016 had approached him for financial assistance and considering the need of the accused in the third week of February 2016 he advanced him a sum of Rs.5,00,000/-.
7. It is pertinent to note here that, the complainant in support of his contentions has placed his reliance on following decision:-
Rangappa -vs- Mohan, reported in AIR 2010 Supreme Court 1898 wherein it has held that Negotiable Instruments Act (26 of 1881), S.138 - Existence of legally recoverable debt or liability - Is matter of presumption u/s. 139.
8. It is pertinent to note here that, the accused in his examination- in-chief has specifically deposed that he had not availed any loan amount from the complainant.
9. It is pertinent to note here that, the accused in support of his contentions has placed in reliance on following decisions:-
1. B. Girish -vs- S. Ramaiah, reported in (2010) 2 Kant. L. J. 284 wherein it held that as held by the Hon'ble Supreme 6 C.C.NO.7919/2017 Court of India in Krishna Janardhan Bhat -vs- Dattatraya G. Hegde, the question as to whether the presumptions under sections 118 and 139 of the Negotiable Instruments Act, have rebutted or not have to be considered by looking into the entire material on record and it is not necessary for the accused to prove his defence beyond reasonable doubt nor be is required to step into the witness box to prove his defence.
2. Nagisetty Nagaiah -vs- State of A. P. and another, reported in 2004 CRI. L. J., 4107 wherein it has held that Negotiable instruments Act (26 of 1881), S.139, S.138 -
dishonour of cheque - Presumption that cheque was issued towards 'legally enforceable debt' - When available - Amount allegedly due from accused in business not proved - Complainant did not file any accounts books - No income - tax report or audit book placed before Court to ensure that there was any legally enforceable debt - It cannot be said that factual basis for raising presumption had been established - Complainant can be said have failed to 7 C.C.NO.7919/2017 discharge initial burden that there was legally enforceable debt - Dismissal of complaint - Proper.
10. It is significant to note here that, the burden heavily lies upon the complainant to substantiate that accused in the month of February 2016 had approached him for financial assistance and considering his need in the third week of February 2016 he advanced him a sum of Rs.5,00,000/.
It is significant to note here that, the complainant in his complaint and in his examination-in-chief has not specifically mentioned the exact dates when the accused had approached him with a request for advancing him a sum of Rs.5,00,000/- and when he advanced the said amount to the accused. It is significant to note here that, the complainant in his cross - examination in page No.12 at 5th line has deposed that, ¸ÁQëUÉ FUÀ AiÀiÁªÀ ¢£ÁAPÀzÀ°è DgÉÆæUÉ ¸ÀzÀj ºÀtªÀ£ÀÄß PÉÆnÖgÀÄwÛÃgÉAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë CAzÁdÁV 22.02.2016 gÀAzÀÄ JAzÀÄ ºÉüÀÄvÁÛgÉ.
It is pertinent to note here that, from the said evidence of the complainant it clearly appears that he is not aware when the alleged transaction had occurred between him and the accused. It is 8 C.C.NO.7919/2017 significant to note here that, the said evidence of the complainant has strike out the present complaint lodged by him against the accused. It is pertinent to note here that, in absence of any material particulars the contentions of the complainant that the accused in the month of February 2016 had approached him for financial assistance and considering his need in the third week of February 2016 he advanced him the said amount cannot be accepted.
It is pertinent to note here that, PW2 in examination - in - chief has deposed that the accused in the third week of February 2016 had availed a sum of Rs.5,00,000/- from the complainant and at the time of alleged transaction he was present in the house of the complainant. It is significant to note here that, PW2 in examination - in - chief has not mentioned the exact date when the complainant had advanced the said amount to the accused. It is pertinent to note here that, in absence of any material particulars the evidence of PW2 cannot be accepted.
It is further significant to note here that, PW2 on one hand has deposed that the complainant in his presence had advanced the said amount to the accused and on the other hand in his cross - 9
C.C.NO.7919/2017 examination in page No.2 at 20th line and in page No.3 at 1st line deposed that, ¸ÁQëUÉ FUÀ ¦ügÁåzÀÄzÁgÀgÀÄ DgÉÆæUÉ 5 ®PÀëgÀÆUÀ¼À£ÀÄß PÉÆlÖ ¸ÀAzÀ¨ÀsðzÀ°è ¨ÀszÀævÉUÁV CªÀjAzÀ AiÀiÁªÀÅzÁzÀgÀÆ zÁR¯ÁwUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆArgÀÄvÁÛgÁ JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë CzÀgÀ §UÉÎ vÀªÀÄUÉ UÉÆwÛgÀĪÀÅ¢®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ.
It is pertinent to note here that, from the said evidence of PW2 it clearly appears that he is not aware anything about the alleged transaction and has falsely deposed before the Court. It is pertinent to note here that, if at all PW2 was present at the time of alleged transaction then he could have deposed the truth before the Court. It is pertinent to note here that, the evidence of PW2 is not trustworthy and the same cannot be accepted and believed.
11. It is pertinent to note here that, the complainant in his complaint and in his examination - in - chief has not disclosed about his source of income. It is further significant to note here that, the complainant has not produced before the Court the documents such as his Bank account statement, Pass book etc., to substantiate that 10 C.C.NO.7919/2017 in the third week of February 2016 he possessed with him a sum of Rs.5,00,000/- and he advanced the same to the accused.
It is significant to note here that, the complainant in his cross
- examination in page No.11 at 12th line has specifically deposed that, ¥sɧæªÀj 2016 gÀ°è £À£Àß ºÀwÛgÀ 5 ®PÀëgÀÆUÀ¼ÀÄ EzÀݪÀÅ JAzÀÄ ºÉüÀ®Ä £À£Àß ºÀwÛgÀ zÁR¯ÉUÀ¼ÀÄ EgÀÄvÀÛªÉ. ¸ÁQëUÉ FUÀ AiÀiÁªÀ zÁR¯ÉUÀ¼ÀÄ EgÀÄvÀÛªÉ JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQëAiÀÄÄ vÀªÀÄä ¨ÁåAPï SÁvɬÄAzÀ ºÀtªÀ£ÀÄß vÉUÉzÀÄPÉÆArgÀĪÀÅzÀPÉÌ zÁR¯ÉUÀ¼ÀÄ EgÀÄvÀÛªÉAzÀÄ ºÉüÀÄvÁÛgÉ.
It is pertinent to note here that, the complainant to substantiate his aforesaid contentions has not produced before the Court any document. It is pertinent to note here that, in absence of any cogent, material and reliable evidence the aforesaid version of the complainant cannot be accepted.
It is significant to note here that, the complainant is mainly relying upon EX.P6- O.D. statement pertaining to Urban Co- Operative Bank, Ltd, to substantiate that, on 22.02.2016 he advanced the said amount to the accused. It is pertinent to note here that, as discussed above the complainant has failed to 11 C.C.NO.7919/2017 probabalise that when he advanced the said amount to the accused and in view of the same, the EX.P6 will not come to his aid. It is significant to note here that, the complainant is claiming that while advancing the said amount to the accused he had not obtained any document from him. It is significant to note here that, at this juncture the conduct of the complainant plays a vital role. It is pertinent to note here that, from entire evidence of the complainant it clearly appears that, in the month of February 2016 the accused had not at all approached him with a request of financial assistance and in the third week of February 2016 he had not advanced him a sum of Rs.5,00,000/-. It is significant to note here that, the complainant has failed to prove the existence of legally recoverable debt.
12. It is pertinent to note here that, the complainant has specifically contended that the accused at the time of availing the said loan had agreed to repay the same with an interest at the rate of 18% per annum and to discharge his legally enforceable debt had issued in his favour a Cheque bearing No.776995 dated:-16.12.2016 for a sum of Rs.5,00,000/- drawn on Canara Bank, Malavalli branch. 12
C.C.NO.7919/2017 It is pertinent to note here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked a Cheque bearing No.776995 dated:-16.12.2016 for a sum of Rs.5,00,000/- drawn on Canara Bank, Malavalli branch, at EX.P1.
13. It is pertinent to note here that, the complainant in support of his contentions has placed his reliance on following decisions:-
1. Latha K. Nair -vs- M/s. Gold Mohar Foods and Feeds Ltd., reported in ILR 2008 KAR 1883 wherein it has held that Negotiable Instruments Act, 1881 - Section 138 - Offence under - Conviction and sentence - Appealed against -
Dismissal of appeal - Revision against - Cheque issued for repayment of loan or security - Held, Cheque issued for repayment of loan or security makes no difference under Section 138 of the Negotiable Instruments Act.- If the cheque is dishonoured, then the accused is liable to pay the cheque amount.
2. T. Vasanthakumar -vs- Vijayakumari, reported in AIR 2015 Supreme Court 2240 wherein it has held that Negotiable Instruments Act (26 of 1881), Ss.138 and 139 - 13
C.C.NO.7919/2017 Dishonour of Cheque - Appeal against acquittal - Cheque as well as signature on it not disputed by accused respondent - Presumption under S.139 would be attracted - Story brought by accused that cheque was given to complainant long back in 1999 as a security to a loan; the loan was repaid but complainant did not return security cheque - Is unworthy of credit, apart from being unsupported by any evidence - Mere printed date on cheque by itself cannot be conclusive of fact that cheque was issued in 1999.
3. L. Mohan -vs- Mohan Naidu, reported in Laws (KAR) 2004
- 1 - 52 wherein it has held that Negotiable Instruments Act, 1881 - Section - Dishonour of cheque - Court has to presume that the cheque has been issued for discharging the debt or liability - The holder has the authority to make or complete the instrument as a negotiable one. Authority implied by a signature to a blank instrument is so wide that the party so signing is bound to be a holder in due course. Even though the holder was authorized to fill a certain amount and he in fact inserts a greater amount, it is not 14 C.C.NO.7919/2017 necessary that the sum ought not to exceed the amount covered by the same. Promissory note are often executed in the name of the payer and left unfilled to be afterwards filed by the actual holder, the object being to enable the owner to pass it off to another with incurring the responsibility as an endorser - The revision petition - Is liable to be dismissed.
14. It is pertinent to note here that, the accused in his examination
- in - chief has specifically deposed that the complainant is running a chit business at Kanakapura and in said chit he invested a sum of Rs.1,00,000/-, 2,50,000/- and 4,00,000/- respectively. That, the accused has specifically deposed that the chit business pertaining of Rs.2,50,000/- was commenced on 12.06.2013 and it was for the period of 25 months and each installment was amounting to Rs.10,000/- per month and the chit business pertaining of Rs.1,00,000/- was commenced on 12.03.2014 and it was for the period of 04 months and each installment was amounting to Rs.10,000/- per month and the chit business pertaining of Rs.4,00,000/- was commenced on 10.08.2014 for a period of 20 months and each installment was amounting to Rs.20,000/- per 15 C.C.NO.7919/2017 month. That, the accused has further specifically deposed that, at the time of investing the said chit amount the complainant as a security had obtained from him his blank signed cheques as under:-
Cheque Amount Bank
776995 2,50,000/- Canara Bank,
Malavalli, branch.
000010 1,00,000/- HDFC Bank,
Kanakapura branch.
000015 4,00,000/- HDFC Bank,
Kanakapura branch.
15. It is pertinent to note here that, the accused has specifically deposed that the complainant had written the contents of aforesaid cheques and he had not issued the cheque in question in his favour to discharge his legally enforceable debt and the complainant by misusing the said cheques has lodged the false cases against him.
That, the accused has further deposed that in the year 2013 his banker had issued the cheques in his favour.
It is pertinent to note here that, the accused to substantiate his aforesaid contentions in his evidence has got marked a Small red colour Note book at EX.D1, his Account statement pertaining to Canara Bank at EX.D2, Account statement of his mother Smt. Padma 16 C.C.NO.7919/2017 pertaining to Central Bank of India at EX.D3, his Pass book pertaining to Canara Bank at EX.D4 and Documents obtained by him under Right to Information Act, from Town police Station of Kanakaprura, Ramanagara District, at EX.D5.
16. It is pertinent to note here that, the accused has placed his reliance on following decisions:-
1. Narinder Kumar -vs- Harman Singh, reported in 2000 CRI. L. J., 257 wherein it has held that Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of cheque -
Debt - or liability - No subsisting debt or liability found established which accused was legally bound to discharge - Cheque also not issued with view to discharge such debt or liability - Accused entitled to be acquitted.
2. B. Indramma -vs- Sri. Eshwar, reported in ILR 2009 KAR 2331 wherein it has held that in order to raise a presumption in favour of the complainant, he has to establish the fact that it was he who 'received' from the accused the cheque in question and, it is only after this fact is established by the complainant, presumption can be raised that the said cheque 17 C.C.NO.7919/2017 was issued by the accused towards discharge of whole or in part of any debt or other liability.
3. Sri. H. Manjunath -vs- Sri. A. M. Basavaraju, reported in ILR 2014 KAR 6572 wherein it has held that Negotiable Instruments Act, 1881 - Section 138 - Offence under - Judgment of acquittal - Appealed against - Absence of statement in complaint as to when the amount was actually given to the accused - Absence of material particulars of the transaction in the complaint - Except signature all other entries are in different hand writing, different ink and undoubtedly made at different time - Mentioning of merely the date of issue of cheque without any material particulars
- Held, Judgment of acquittal is justified.
4. Narsi Dass -vs- Surendra, reported in Laws (P and H) 2014 - 11 - 14 wherein it has held that the claim by money lender (complainant) against borrower (accused) without a valid and operative money lending license covering period of transaction as unenforceable claim under section 138 of the Negotiable Instruments Act.
18
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5. Nanda w/o Dharam Nandanwar -vs- Nandkishor s/o Talakram Thakoar, reported in Laws (Bom) 2010 - 1 - 116 wherein it has held that only legally enforceable debt or liability can be enforced in the proceedings under section 138 of the N. I. Act, because the explanation to the penal provision is abundantly clear that the dishonoured cheque must have been received by the complainant against a legally enforceable debt or liability.
17. It is pertinent to note here that, the entire burden lies upon the complainant to substantiate that the accused to discharge his legally enforceable debt had issued in his favour EX.P1. It is significant to note here that, as stated above the complainant is claiming that the accused to discharge his legally enforceable debt had issued in his favour EX.P1 and whereas, in his cross-examination in page No.11 at 4th line has deposed that, ¸ÁQëUÉ FUÀ DgÉÆæ ¤¦-1 gÀAvÉ ZÉPï£ÀÄß ¤ªÀÄUÉ AiÀiÁªÀ ¢£ÁAPÀzÀ°è PÉÆnÖgÀÄvÁÛgÉ JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë vÁªÀÅ DgÉÆæUÉ ¸Á®ªÀ£ÀÄß PÉÆlÖ ªÀÄÆgÀÄ wAUÀ¼À £ÀAvÀgÀ PÉÆnÖgÀĪÀÅzÁV ºÉý vÀªÀÄUÉ ¤RgÀªÁzÀ ¢£ÁAPÀ UÉÆwÛgÀĪÀÅ¢®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ. 19
C.C.NO.7919/2017 It is significant to note here that, the said evidence of the complainant clearly reveals that he is not aware when the accused had issued in his favour EX.P1. It is significant to note here that, from the said evidence of the complainant it can be clearly gathered that the accused had not issued the EX.P1 in his favour as alleged by him. It is significant to note here that, in absence of any reliable and cogent evidence and materials particulars the contention of the complainant that the accused to discharge his legally enforceable debt had issued in his favour EX.P1 cannot be accepted.
It is further significant to note here that, the complainant in his cross - examination in page No.11 at 1st line deposed that, ¸ÁQëUÉ FUÀ ¤¦-1J zÀ°ègÀĪÀ ¸À» ºÁUÀÆ ¤¦-1 gÀ°è ªÉÆvÀÛ ºÁUÀÆ ¢£ÁAPÀªÀ£ÀÄß §gÉ¢gÀĪÀÅzÀgÀ°è MAzÀÄ PÀqÉ qÁPïð DV MAzÀÄ PÀqÉ ¸ÁªÀiÁ£ÀåªÁVgÀÄvÀÛzÉ JAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë ºËzÀÄ JAzÀÄ ºÉüÀÄvÁÛgÉ. It is pertinent to note here that, the said evidence of the complainant clearly strengthen the contention of the accused. That, in other words, from the said evidence of the complainant it clearly 20 C.C.NO.7919/2017 appears that the accused had not written the contents of the Cheque in question - EX.P1.
18. It is pertinent to note here that, the accused has taken a specific contention that the complainant is doing the chit business and he invested the amount in said chit business and whereas, the complainant has denied the same. It is significant to note here that, the complainant on one hand denies that he is not doing the chit business and on the other hand in cross - examination of the accused in page No.5 at 13th himself has suggested that he is doing the chit business. It is significant to note here that, for the sake of convenience the said suggestion and answer of the accused has re - iterated as under:-
¸ÁQëUÉ FUÀ ¤ªÀÄä ¥ÀæPÁgÀ ¤ÃªÀÅ AiÀiÁªÁUÀ ¦gÁåzÀÄzÁgÀgÉÆqÀ£É aÃn ªÀåªÀºÁgÀªÀ£ÀÄß ¥ÁægÀA©s¹gÀÄwÛÃj JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë ¢£ÁAPÀ 12.06.2013 JAzÀÄ ºÉüÀÄvÁÛgÉ.
It is significant to note here that, from the said suggestion made by the complainant it clearly appears that he is doing the chit business. It is further significant to note here that, the accused in his cross - examination in page No.6 has specifically deposed that in chit 21 C.C.NO.7919/2017 business of Rs.1,00,000/- the 25 members and in chit business of RS.4,00,000/- the 20 members have invested the amount. It is pertinent to note here that, the complainant has failed to shake said the credibility of the accused. It is further pertinent to note here that, the complainant in cross - examination of the accused has tried to elicit that he is doing the money lending business along with some other persons, but, failed to substantiate his said contention. In other words, the complainant has not produced before the Court the documents to substantiate he is doing the money lending business as alleged by him. It is pertinent to note here that, in absence of any material particulars the contention of the complainant that he is doing the money lending business as alleged by him cannot be believed and accepted. It is significant to note here that, EX.D1 reveals that the complainant uses to take the chit amount from the accused.
It is pertinent to note here that, DW2 in his examination - in - chief has specifically deposed that the complainant is doing the chit business and three - four times he had invested the amount in said chit business and the complainant has got his said office at MVR 22 C.C.NO.7919/2017 road, Kanakapura and towards the chit amount the complainant had obtained from him his cheques as a security. That, DW2 has further deposed that the complainant for receiving the chit amount from him used to mention the same in one note book. That, DW2 has further deposed that, through him the accused had invested the amount in said chit business of the complainant and as a security he gave him one cheque of the accused and the accused had settled the chit amount of the complainant. It is significant to note here that, the complainant though, in cross - examination of DW2 has tried to shake his credibility, but, all his efforts were went in vain.
It is significant to note here that, from perusal of EX.P6 it clearly appears that some persons by name Shri Umakanth - PW3, Shri Abdulla, Shri Muniraju - PW2 and Shri Nagraju have availed the amount from the complainant. It is significant to note here that, the accused in cross - examination the complainant in page No.14 has made the suggestion that the said Umakanth, Abdulla, Muniraju and Nagraju have invested the amount in his chit business, but, the complainant has denied the same. It is pertinent to note here that, the complainant has not offered any explanation for what reason he 23 C.C.NO.7919/2017 advanced the amount to aforesaid persons. It is significant to note here that, the mere denial of fact is not enough to substantiate the case.
It is further significant to note here that, PW2 in his examination - in - chief has specifically deposed that the complainant is not doing the chit business. It is significant to note here that, PW2 in his cross - examination in page No.4 at 11th line has deposed that he is not aware whether the complainant is doing the money lending business and he had obtained the license for it. It is further significant to note here that, PW2 in his cross - examination in page No.4 at 1st line has specifically admitted that on 28.03.2016 and on 21.04.2016 he had availed from the complainant a sum of Rs.1,00,000/- respectively, through cheques. It is further pertinent to note here that, PW2 in his cross - examination in page No.4 at 15th line has admitted that at the time of availing the loan amount from the complainant he used to give him his cheques as a security. It is significant to note here that, PW2 has not explained for what reason he used to give his said cheques to the complainant as a security. It is significant to note here that, from entire evidence of 24 C.C.NO.7919/2017 PW2 it clearly appears that the complainant is doing the chit business and he had availed the chit amount from him.
It is significant to note here that, PW3 in his examination - in - chief has also specifically deposed that the complainant is not doing the chit business and the complainant uses to give the loan amount to the persons known to him and he had availed hand loan from the complainant on several occasions and repaid the same to him. It is significant to note here that, PW3 in his cross - examination in page No.4 at 15th line has deposed that the complainant had got the license to run the finance business. It is significant to note here that, PW3 has not produced before the Court the said license. It is pertinent to note on mere say the Court cannot accept version of PW3. It is pertinent to note here that, from entire of evidence of PW3 it clearly appears that even though he invested the chit amount in chit business of the complainant has falsely deposed before the Court only with an intention to support the case of the complainant. It is pertinent to note here that, from entire evidence of the complainant and accused it clearly appears that the complainant is doing the chit business and in said business the accused had invested the amount. 25
C.C.NO.7919/2017 It is further significant to note here that, from the entire evidence of PWs.2 and 3 and DW2 it clearly appears that they have invested the amount in said chit business of the complainant.
19. It is significant to note here that, as stated above the accused has contented that the cheque misused by the complainant was issued by his banker in the year 2013 and the cheques used by him pertaining to same serial numbers have been reflected in his bank statement - EX.D2. It is pertinent to note here that, the serial number of the Cheque in question - EX.P1 is 776995 and from perusal of EX.D2 it clearly appears that the accused had used the cheques of same series viz.77691, 77692, 776994, 776993, 776996, 776999 in the year 2013 and if such being the case the question of issuing the Cheque in question - EX.P1 by the accused to the complainant in the year 2016 do not arise at all.
20. It is significant to note here that, the accused in his examination
- in - chief and in cross - examination of the complainant has taken a specific defenses that he is a permanent resident of Malavalli and in said place he is doing his textile business and for which he used to request his mother for issuing the cheques to the complainant. It is 26 C.C.NO.7919/2017 significant to note here that, from perusal of EX.D3 it clearly appears that the complainant on different dates through cheques had received Rs.5,000/- from the mother of the accused. It is significant to note here that, though, the complainant has denied the aforesaid contentions of the accused, but, in his cross - examination in page No.19 at 15th line has deposed that, ¸ÁQëUÉ FUÀ DgÉÆæAiÀÄ vÁ¬ÄAiÀÄ MAzÀÄ ¨ÁåAPï SÁvÉAiÀÄ ¸ÉÃÖmïªÉÄAl£ÀÄß vÉÆÃj¹ CzÀgÀ ¥ÀæPÁgÀ ¤ªÀÄä SÁvÉUÉ ¤gÀAvÀgÀªÁV LzÉÊzÀÄ ¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀAvÉ ºÀt dªÀiÁ ªÀiÁqÀ¯ÁVgÀÄvÀÛzÉ JAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë ¸ÀzÀj SÁvÉ vÀªÀÄUÉ ¸ÀA§A¢ü¹gÀĪÀÅ¢®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ. ¸ÁQëAiÀÄÄ FUÀ ªÀÄvÉÛ ªÀÄÄAzÀĪÀgÉzÀÄ, DgÉÆæAiÀÄÄ vÀªÀÄä ºÀwÛgÀ ºÀt E®èªÉAzÀÄ ºÉý ZÉPÀÄÌUÀ¼À£ÀÄß PÉÆqÀÄwÛzÀÝgÀÄ JAzÀÄ ºÉüÀÄvÁÛgÉ ºÁUÀÆ ¸ÀzÀj SÁvÉ DgÉÆæAiÀÄ vÁ¬ÄUÉ ¸ÀA§A¢ü¹zÀÄÝ JAzÀÄ ºÉüÀÄvÁÛgÉ.
It is pertinent to note here that, the complainant in his cross - examination in page No.20 at 4th line has deposed that, ¸ÁQëUÉ FUÀ F ªÉÄÃ¯É ºÉýgÀÄAvÉ aÃn ºÀtªÀ£ÀÄß ¤ªÀÄUÉ PÉÆqÀÄwÛzÀÝgÀÄ JAzÀÄ 27 C.C.NO.7919/2017 ºÉýzÀÝPÉÌ ¸ÁQë vÁªÀÅ DgÉÆæUÉ PÉÊ ¸Á®ªÀ£ÀÄß PÉÆqÀÄwÛzÀÄÝzÀÝPÉÌ D ºÀtªÀ£ÀÄß vÀªÀÄUÉ »A¢gÀÄV¸ÀÄwÛzÀÝgÀÄ JAzÀÄ ºÉüÀÄvÁÛgÉ.
It is significant to note here that, from the said evidence of the complainant it appears that he has tried to substantiate that accused used to take loan amount from him and for which he returned the said amount as per EX.D3, but, it is not the case of the complainant that the accused uses to take the amount from him. It is pertinent to note here that, the said evidence of the complainant clearly strengthen the aforesaid contentions of the accused. It is significant to note here that, from overall evidence of the complainant it clearly appears that, he is doing the chit business and the accused had invested the amount in said business and as a security he had issued in favour of the complainant the Cheque in question - EX.P1. It is pertinent to note here that, if the complainant fails to prove the execution of the instrument then presumption arises in favour of the accused that he had not executed the instrument to discharge his legally enforceable debt. It is significant to note here that, in the instant case the accused has taken a probable defenses and with all cogent and probable evidence has rebutted the case of the 28 C.C.NO.7919/2017 complainant. It is significant to note here that, in view of My above findings and without much discussion I hold that, the complainant has failed to prove that the accused to discharge his legally enforceable debt had issued in his favour EX.P1. In view of the same, point No.1 is answered in the NEGATIVE.
21. Point No.2 :- That, the complainant has specifically contended that, on 05.01.2017 he presented the EX.P1 for encashment in Bharath Co-Operative Ltd., Bank, Jayanagara branch, Bengaluru and on 06.01.2017 the same was returned with the shara as 'Funds Insufficient' in the account of the accused.
It is to be noted here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Cheque return memo issued by the said Bank at EX.P2.
It is pertinent to note here that, as discussed on point no.1 the complainant has failed to prove that the accused to discharge his legally enforceable debt had issued in his favour EX.P1 and if such being the case the question of committing the offence by the accused under section 138 of the Negotiable Instruments Act, does not arise at all. It is pertinent to note here that, in view of My above findings I 29 C.C.NO.7919/2017 hold that, the complainant has failed to prove that the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act. In view of the same, point no.2 is answered in the NEGATIVE.
22. Point No.3:- It is pertinent to note here that, the accused has taken a specific contention that he has not received the legal notice issued by the complainant and he is residing at No.615, 2, Kotesulthan road, Madivala street, Malavalli - 571430.
23. It is pertinent to note here that, the accused in support of his contentions has placed his reliance on following decision:-
Amzad Pasha -vs- H. N. Lakshman, reported in (2010) 3 Kant. L. J. 397 wherein it has held that Section 27 of the Mysore General Clauses Act, 1899, provides for deemed service provided the document is properly addressed and posted. In view of the fact that the notice sent by the complainant was not properly addressed to the respondent, there cannot be a deemed service of such notice. 30
C.C.NO.7919/2017
24. It is pertinent to note here that, the complainant has specifically contended that on 28.01.2017 he issued the legal notice to the accused and the same was returned with the shara as 'Not claimed'.
It is to be noted here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Legal notice issued to the accused dated:- 28.01.2017 at EX.P3, Postal receipt at EX.P3(a) and RPAD at EX.P4.
25. It is pertinent to note here that, the complainant is relying on following decision:-
C. C. Alavi Haji -vs- Palpeety Muhammed and another, reported in (2007) 6 Supreme Court Cases 555 wherein it has held that once the notice is sent by registered post by correctly addressing the drawer of the cheque, the service of notice is deemed to have been effected - But complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer - Mandatory requirement of issue of notice in terms of S.138 proviso (b) stands complied with when the notice is sent in said manner - However, the drawer can rebut the presumption of service of notice by 31 C.C.NO.7919/2017 showing that he had no knowledge that the notice was brought to his address or the address mentioned on the cover was incorrect or the letter was never tendered or the report of the postman was incorrect.
26. It is pertinent to note here that, service of notice as to dishonour of cheque is a must for initiating criminal Proceedings. It is significant to note here that, when notice is dispatched by sender through post with correct address on it, it can be deemed to be served on sendee unless he proves that it was not really served.
27. It is pertinent to note here that, the accused as stated above has contended that he has not received the EX.P3 - Legal notice and he is residing at No.615, 2, Kotesulthan road, Madivala street, Malavalli 571430. It is pertinent to note here that, the accused has not produced before the Court any document to substantiate that he is residing in said address. It is pertinent to note here that, in EXs.D2 and 4 the address of the accused has been mentioned as Kotesulthan road, Madivala street, Ms. Siddaraju D. No.615, 2,Malavalli. It is pertinent to note here that, from perusal of EXs.P3 and 4 it appears that the complainant has mentioned the address of the accused as 32 C.C.NO.7919/2017 residing at:-Behind State Bank of India, Puttadasara street, Halasinamaridhoddi, Kanakpura - 562117. It is significant to note here that, the accused in his cross - examination in page no.3 has specifically deposed that in his Aadhar card his address has been mentioned as Puttadas street, near Puttadas home, Ward No.17, Kanakapura, Karnataka, Ramnagara - 562117. It is pertinent to note here that, from the said evidence of the accused it clearly appears that he is residing in Kanakapura town. It is pertinent to note here that, from perusal of EX.P4 it is appears that it was returned with the shara as not claimed. It is pertinent to note here that, from perusal of EXs.P3 and 4 it clearly appears that the complainant had dispatched the same to the correct address of the accused. It is pertinent to note here that, in view of My above findings I hold that, the complainant has complied with the provisions of section 138(b) of the Negotiable Instruments Act. In view of the same, point No.3 is answered in the AFFIRMATIVE.
28. Point No.4 :- That, as discussed on points No.1 to 3, I proceed to pass the following:-
33
C.C.NO.7919/2017 ORDER That, acting under section 255(1) of Code of Criminal Procedure, the accused is acquitted for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the accused shall comply with the provisions of section 437(A) of the Code of Criminal Procedure Code.
That, the bail and surety bonds of the accused are stand cancelled.
(Typed and corrected by me and then pronounced by me in the open court on this the 28th day of May 2018) (Hema Pastapur) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List witnesses examined on behalf of the complainant PW1 : P. Krishnappa s/o Papanna;
PW2 : K. N. Muniraju s/o Narasimaiah and
PW3 : Umakanth C. s/o Late Chikkaveerappa.
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C.C.NO.7919/2017
List of documents marked on behalf of the complainant EX.P1 : Original Cheque;
EX.P1(a) : Signature of the accused;
EX.P2 : Cheque return memo;
EX.P3 : Legal notice 28.01.2017;
EX.P4 : Postal receipt;
EX.P5 : RPAD;
EX.P6 : Copy of Bank statement of the
complainant pertaining to Urban
Co-Operative Bank and
EX.P7 : Certified copy of counter file.
List of witnesses examined on behalf of the accused DW1 : V. Balaraju s/o Late Venkatesh and DW2 : Nandish K. R. s/o Raju K. R. List of documents marked on behalf of the accused EX.D1 : Small red colour Note book;
EX.D2 : Account statement of the accused
pertaining to Canara Bank;
EX.D3 : Bank statement of mother of the
accused Smt. Padma pertaining to
Central Bank of India;
EX.D4 : Pass book of the accused pertaining to
Canara Bank and
EX.D5 : Documents obtained by the accused
under Right to Information Act.
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
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