Bangalore District Court
Sri.R. Vinay Kumar vs Sri.Chalapathi.A on 19 November, 2018
1 C.C.No.23141/2015 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This 19th day of November, 2018
Present:- Smt. Saraswathi.K.N, B.A.L.,LL.M.,
XVI Addl.CMM., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C.No.23141/2015
Complainant : Sri.R. Vinay Kumar,
S/o. Rajagopal,
Aged about 28 years,
Residing at No.63,
2nd Floor,
Above Reliance Fresh,
Uttarahalli Main Road,
Bengaluru - 560 061.
(Rep.by Sri.A.C.Mallesha, Adv.,)
- Vs -
Accused : Sri.Chalapathi.A
S/o. Sri.Krishnamurthy
Addula,
Aged about 29 years,
R/at No.354, 4th Cross,
Yadalam Nagar,
Subramanyapura,
Bengaluru - 560 061.
(By Sri. PKC and others, Advs.,)
Case instituted : 19.8.2015
Offence complained of : Sec.138 of the N.I. Act
Plea of Accused : Pleaded not guilty
2 C.C.No.23141/2015 J
Final Order : Accused is acquitted
Date of order : 19.11.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused and he are well known to each other from the past several years and with that acquaintance, the Accused had approached him on 4.2.2015, seeking for a loan of Rs.3 Lakhs. He has advanced the said loan amount of Rs.3 Lakhs to the Accused by way of cash on 10.2.2015 and while borrowing the said amount, he had assured him that, he would repay the said amount to him within 3 months.
3. The Complainant has submitted that, after the stipulated period of time, when he approached the Accused and requested for the repayment of the loan amount, after his persistent demands, towards the discharge of the said liability, the Accused issued the cheque bearing No.812952 dated:- 20.4.2015 for Rs.3 Lakhs drawn on the SBI, Isro Layout, Bengaluru, in his favour with an assurance that, the same would be duly honoured on it's presentation on the due date.
3 C.C.No.23141/2015 J4. The Complainant has submitted that, as per the instructions of the Accused, when he presented the said cheque for encashment through his banker, the same came to be returned dishonoured as "Funds Insufficient", vide Bank Endorsement dated:- 30.6.2015. Immediately, though he approached the Accused and intimated to him about the said fact, the Accused failed to repay the loan amount to him. Hence, left with no other alternative, he got issued the legal notice to the Accused on 24.7.2015, through RPAD calling upon him to pay the cheque amount to him, within 15 days from the date of the receipt of the said legal notice. Though after the service of the said notice, the Accused has caused an untenable reply to him, he has failed to comply with the demand made therein. Hence the present complaint.
5. The Complainant submits that, the dishonour of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that, he be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
6. The Complainant has led his pre-summoning evidence by having filed his affidavit-in-lieu of his sworn-
4 C.C.No.23141/2015 Jstatement, in which, he has reiterated the complaint averments.
7. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
8. The Accused has appeared before the court and he has been enlarged on bail and the substance of the accusation has been read over to him, to which, he has pleaded not guilty and has stated that he has his defence to make.
9. In the post summoning evidence, the Complainant has examined as PW.1 and filed his affidavit-in-lieu of his sworn-statement, in which, he has reiterated the complaint averments.
10. In support of his evidence, P.W.1 has produced and relied upon the documentary evidence as per Ex.P.1 to P.6, which is, as follows:-
Ex.P.1 is the Original Cheque dated:-20.4.2015, in which the signature is identified by P.W.1 as that of the Accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, the Postal Receipt as per Ex.P.4, the Postal Acknowledgement Ex.P.5 and the Reply Notice as per Ex.P.6.5 C.C.No.23141/2015 J
11. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as he intended to set out his defence, the case came to be posted for the cross-examination of the Complainant.
12. P.W.1 has been cross-examined by the learned Defence Counsel.
13. The statement of the Accused as required under Sec. 313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence found against him and has chosen to lead his rebuttal evidence.
14. The Accused has examined on oath under Sec.315 of the Cr.P.C and during his evidence, the gist of his defence is as follows:-
i) That the Complainant is his friend;
ii) That in August 2014, he intended to purchase a car worth Rs.7 Lakhs, in respect of which, he fell short of Rs.2.5 Lakhs and for the same purpose, he approached the Complainant seeking the said financial assistance of Rs.2.5 Lakhs to him;6 C.C.No.23141/2015 J
iii) That the Complainant lent him the said amount at an interest of 11% p.m and that he got registered the said car in the name of his brother Madhu Babu;
iv) That at that time, the Complainant collected his signature on a blank Stamp Paper and collected the cheque in dispute from him as a signed blank cheque and a signed blank cheque bearing No.000018 drawn on the Bank of Baroda belonging to his brother Madhu Babu;
v) That the Complainant had demanded for the repayment of the said loan amount within months from the date of lending;
vi) That he was paying a monthly interest of Rs.27,500/= to the Complainant towards interest;
vii) That, thereafter the Complainant sought for the repayment of the loan from him, in respect of which, he paid Rs.1,40,000/- to him by way of cash and sought for the extension of time for the repayment of the balance amount;7 C.C.No.23141/2015 J
viii) That, as the marriage of his sister was fixed on 23.03.2015, he could not repay the balance amount to the Complainant, for which, the latter threatened him that, he would stop the marriage of his sister.
Therefore, he assured him that he would repay his balance loan by selling his car, for which, the Complainant told him that, he himself would purchase his car and accordingly he purchased his car;
ix) That, thereafter the Complainant failed to return his cheques to him;
x) That at the time of selling the car, he had told the Complainant that the same was purchased by him by availing loan from Sriram Finance on a monthly EMI of Rs.20,350/= and that, he continued to make the said payment;
xi) That, though the Complainant purchased his car in February 2015, he failed to pay the EMI's towards the car till October 2015, though he earned profits from his car;
xii) That thereafter Sriram Finance Authorities called him demanding the EMIs of the car 8 C.C.No.23141/2015 J and though, he intimated about this fact to the Complainant, the latter totally denied having purchased my car from me and also denied the possession of his car with him;
xiii) That thereafter when the Sriram Finance seizers came to his house, he took them to the house of the Complainant and showed them the car;
xiv) Therefore in this regard, he lodged a complaint against the Complainant before the Subramanyapura Police alleging that, he had collected his cheques and also his car;
xv) That as took the Sriram Finance
Authorities to the house of the
Complainant, with that grudge, the latter has presented his cheque and the cheque of his brother, without their knowledge and got them bounced;
xvi) That thereafter the Subramanyapura Police summoned the Complainant to the Police Station on the basis of the complaint that was lodged by him and thereafter got the 9 C.C.No.23141/2015 J possession of the car delivered to the Sriram Finance from the Complainant;
xvii) That the Complainant got issued the legal notice to his brother Madhu Babu through his friend Rajesh Kumar, on the basis of the cheque of his brother, claiming a sum of Rs.4 Lakhs and also got issued the legal notice to me claiming Rs.3 Lakhs;
xviii) That he is not liable to pay any amount to the Complainant and that still he is receiving the notices from the Sriram Finance.
15. In support of his rebuttal evidence, D.W.1 has produced and relied upon the documentary evidence as per Ex.D.1 to D.6, which is as follows:-
1. The Certified copy of the Complaint of C.C.No.23144/15 as per Ex.D.1;
2. The Certified copy of the Letter dated: 2.2.2017 as per Ex.D.2;
3. The Certified copy of the Complaint against the Complainant dated: 19.10.2015 as per Ex.D.3;
4. The certified copy of the complaint dated:-
7.11.2015 as per Ex.D.4;
5. The Statement of Accounts as per Ex.D.5; and 10 C.C.No.23141/2015 J
6. The Notice dated: 5.8.2016 as per Ex.D.6.
Hence, he has prayed for his acquittal.
16. D.W.1 has been cross-examined by the learned counsel for the Complainant.
17. The learned counsel for the Complainant has filed his written arguments, in which, he has prayed for the conviction of the Accused on the grounds stated therein.
18. Per contra, the learned Defence Counsel ahs addressed his oral arguments.
19. In support of his arguments, the learned counsel for the Complainant has relied upon the following decisions:-
i) Prakash Alias Jnanaprakash Vs., T.S.Susheela, reported in LAWS (KAR) - 2012-7- 91;
ii) Santosh Mittal Vs., Sudha Dayal, reported in DCR 2015 (1) 44;
iii) Rangappa Vs., Mohan, reported in AIR 2010 SC 1898;
iv) T.Vasanth Kumar Vs., Vijayakumari, reported in (2015) 8 SCC 378;
v) Lekh Raj Sharma Vs., Yash Pal Gupta, reported in LAWS (DLH)- 2015-6-26;11 C.C.No.23141/2015 J
vi) V.S.Yadav Vs., Reena, reported in LAWS (DLH)
- 2010 - 9 - 108;
vii) R.Vijayan Vs., Baby, reported in AIR 2002 SC 528;
viii) M/s. Amolak Textiles, Bangalore Vs., M/s. Uphar Fashions, reported in 2009 (1) KCCR 249;
ix) Mainuddin Abdul Sattar Shaikh Vs., Vijay D Salvi, reported in 2015(3) Crimes 312 (SC);
x) Om Prakash Vs., L.Sunitha and another, reported in 2015 (3) Crimes 499;
20. I have gone through the afore-cited decisions relied upon by the learned counsel for the Complainant and perused the record carefully.
21. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;12 C.C.No.23141/2015 J
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Sec.138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
22. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec.138, for the discharge, in whole or in part, of any debt or other liability".
23. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."13 C.C.No.23141/2015 J
24. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
25. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
26. It is a well settled position of law that the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
27. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to 14 C.C.No.23141/2015 J rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
28. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
29. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
30. Admittedly, there is no dispute with regard to the acquaintance between the parties, as well as with regard to the fact that, the cheque in dispute belong to the Accused with his signature on it and that he has issued the same in favour of the Complainant. Likewise, there is no dispute with regard to the existence of the loan transaction 15 C.C.No.23141/2015 J between the parties, though according to the Complainant, it is to the tune of Rs.3 Lakhs, while according to the Accused, it was only a loan transaction of Rs.2.5 Lakhs. Likewise, there is also dispute with regard to the purpose for which the cheque in dispute was issued by the Accused in favour of the Complainant, since according to the Complainant, it was issued to him by the Accused towards the re-payment of the loan amount of Rs.3 Lakhs, while according to the Accused, it was issued by him to the Complainant, as a signed blank cheque only for the purpose of the security of the loan of Rs.2.5 Lakhs.
31. Moreover, there are contradictory claims between the parties with regard to the alleged charging of interest on the loan by the Complainant, since according to the Complainant, he has advanced the loan of Rs.3 Lakhs to the Accused without charging any interest, while according to the Accused, he had borrowed the loan of Rs.2.5 Lakhs only from the Complainant, for which, the latter was charging the monthly interest at the rate of 11%.
32. Therefore it is clear that, there are serious rival contentions between the parties with regard to the quantum of the loan amount as well as the alleged charging of interest on the said loan by the Complainant to the Accused. In such circumstance, the onus of proving 16 C.C.No.23141/2015 J the case beyond reasonable doubt is upon the Complainant.
33. It is pertinent to note that, the Accused has admitted that, the cheque in dispute relates to the account of the Accused and that it bears his signature.
34. It is seen that, the Accused has spelled out his defence, first in point of time, by causing a reply notice to the counsel for the Complainant as per Ex.P6. In the said reply notice, it is the specific defence of the Accused that, he and his brother Madhu Babu (the Accused of C.C.No.23144/2015) were in need of funds, while purchasing the Innova Car bearing No. KA - 01 D 5990 and that, for the same reason, they borrowed a hand loan of Rs.2,50,000/= from the Complainant, who agreed to lend the said loan to them, with interest at 11% per month.
35. That, at the time of borrowing the said loan, the Complainant had forcibly collected a signed blank cheque of him and his brother (the subject cheques of the present case and that of C.C.No.23144/2015), a signed blank e- stamp paper of his brother on Form No.29 and 30 of RTO office.
36. That, they were regularly paying the monthly interest of 11% per month to the Complainant regularly on 17 C.C.No.23141/2015 J the principal loan amount of Rs.2,50,000/= i.e., Rs.27,500/= per month till March 2015. That he has repaid the principal loan amount of Rs.1,40,000/= during the month of March 2015.
37. That, during the month of March 2015, the Complainant seized their Innova car and as such, he (Accused) was unable to pay either the principal or the interest amount to the latter every month;
38. That, the Complainant without adjusting the principal amount repaid by him in a sum of Rs.1,40,000/= in the month of March 2015, has deposited the cheques by filling up the amounts and dates as per his whims and fancies, has filed this false case against him and that of C.C.No.23144/2015 against his brother, so as to make wrongful gain from them.
39. It is seen that, in order to consider the aforesaid defence of the Accused as a probable one, it is necessary that the same has to be proved with reliable and cogent evidence, at least by probabalising the same, though not as proof beyond reasonable doubt.
40. In this regard, it is pertinent to note that, there is no dispute with regard to the fact that, the Complainant has complied with the ingredients of Sec.138 of the N I Act.
18 C.C.No.23141/2015 J41. However, the first and the foremost defence of the Accused in this case is with regard to the financial capacity of the Complainant, in having allegedly advanced a huge loan of Rs.3 Lakhs to the Accused.
42. In this regard, during the cross-examination of the Complainant, it is elicited from him that, he is in the building construction business, in respect of which, he has no license.
43. Though in this regard, the Complainant has deposed that, he is an income tax assessee and that, he constructs his own apartments and buildings, in respect of which, he claims to possess the documents, interestingly till date, he has not produced any such relevant documents before this court.
44. Moreover, it is elicited from the Complainant that, his business income would depend upon the works that he might secure and that some times he would be getting some minor works.
45. It is pertinent to note that the source of funds for having lent the loan of Rs.3 Lakhs by the Complainant to the Accused is concerned, according to the former, he had derived the amount towards the moulding of the building 19 C.C.No.23141/2015 J that he was constructing and the same was kept by him in his house.
46. However, the Complainant has claimed that, though at the time of his alleged lending of the loan to the Accused in the Uttarahalli Main Road, his friend Sriram was present. But admittedly the Complainant has not chosen to cross-examine his friend Sriram, though his alleged lending of the loan to the Accused is seriously disputed by the latter.
47. Moreover, it is interesting to note that, for the first time in his cross-examination, the Complainant has come up with a claim that, the Accused has borrowed a loan amount from him for the purpose of his marriage of his sister, promising to repay the same within 3 months. But admittedly, the purpose of the alleged loan does not find place in the complaint.
48. Likewise, for the first time, the Complainant has also contradicted by claiming in his cross-examination that, he had collected the cheque from the Accused at the time of his alleged lending of the loan to him. However, as per the complaint averments, it is only after the stipulated period of 3 months from the date of the alleged lending that, when the Complainant approached the Accused and 20 C.C.No.23141/2015 J requested for the repayment of the loan and after the persistent demands made by him, that towards the discharge of his liability, the Accused is alleged to have issued the subject cheque to him.
49. However, by claiming contrarily with regard to the time, during when the cheque in dispute is alleged to have been collected from the Accused, the Complainant has created a serious doubt in the mind of this court about his case.
50. Moreover, even during the course of his further cross-examination, the Complainant has claimed once again that, at the time of his lending of the loan to the Accused, he has collected the cheque from the latter.
51. However, it is not the case of the Complainant that, he has lent the loan to the Accused for any interest. Though the Complainant has denied the suggestion of the Defence Counsel that, the Accused had borrowed a loan of only Rs.2.5 Lakhs from him in the month of August 2014, for which, he was paying a monthly interest of Rs.27,500/= upto February 2015 at the rate of 11% p.m and that thereafter, he has repaid the entire principal loan amount of Rs.1,40,000/= to him, he has utterly failed to prove his 21 C.C.No.23141/2015 J alleged advancement of either the loan of Rs.3 Lakhs or any other loan to the Accused.
52. Moreover, the defence of the Accused is that, he had borrowed the loan from the Complainant only to the tune of Rs.2.5 Lakhs with interest at the rate of 11% p.m, so as to purchase the Innova car and that, as he was liable to pay the monthly EMI of Rs.20,350/= towards the purchase of his Innova car and as the Complainant to take away his Innova car, he had to suffer the loss and as a result, he could not pay the monthly interest to the Complainant.
53. Therefore, it is further claimed by the Accused that, it is in the background of such situation that, the Complainant has presented the cheque in dispute of the present case as well as that of his brother of C.C.No.23144/2015 and misused the same.
54. However, it is pertinent to note that, though the Complainant has denied the defence version of the Accused that, he had taken away the Innova car of the latter, in his cross-examination, he has clearly admitted that, when the Accused approached him and enquired with him with regard to the same, as he did not respond to the Accused, the latter lodged a complaint against him before the 22 C.C.No.23141/2015 J Subramanyapura Police Station on 19.10.2015, in pursuance of which, he had given an undertaking as per Ex.D.4.
55. It is relevant to note that, the Complainant has also admitted the suggestion that, in his statement before the concerned police, he had undertaken to return the Innova car to the Accused as well as his cheque to him.
56. It is interesting to note that, the Accused has probabalized his defence by producing the certified copy of the complaint lodged by him against the Complainant on 19.10.2015 before the Subramanyapura Police Station as per Ex.D.3 and the Statement of the Complainant given before the concerned Police as per Ex.D.4.
57. Interestingly, when the Complainant himself has admitted the contents of his statement at Ex.D4, he is estopped from denying the correctness of the same at the subsequent stage of the same proceeding.
58. In this regard, the Complainant has made an effort in order to fill up the lacuna in his case, in view of his admission given with regard to his statement at Ex.D.4 during the stage of the cross-examination of the Accused, by suggesting to the latter that, the latter has lodged the complaint against the former as per Ex.D.3, after the 23 C.C.No.23141/2015 J issuance of the reply notice by him to the former (Complainant) as per Ex.P.6.
59. It is pertinent to note that, the Accused has also admitted that, after the lodging of the said complaint as per Ex.D.3 by him, the Complainant was summoned to the Police station and after his statement was recorded, the said complaint was closed by the police. To this suggestion, the Accused has offered an explanation that, his Innova car was got returned to him by the police and he has denied the suggestion that, the Complainant had not taken away his Innova car and that, it was seized by the Sriram Finance Company.
60. Interestingly, though the Complainant claims that, the Innova car of the Accused was not seized by him, but was seized by Sriram Finance Company, the said claim on his part is contrary to his admitted statement given before the Subramanyapura Police Station as per Ex.D.4. In such circumstance, when there is a contradiction between the oral and documentary evidence, the documentary evidence as per Ex.D.4 would prevail over the oral testimony, it is clearly proved by the Accused that, he has taken the possession of his Innova car from the Complainant in the police station at the intervention of the police. Therefore the defence of the Accused with regard to the act of the Complainant in having seized the Innova car 24 C.C.No.23141/2015 J of the former has also been probabalised with the documentary evidence by the Accused.
61. It is interesting to note that, the Complainant has claimed that, the Accused and his family members has spent about Rs.15 to 20 Lakhs for the performance of the marriage of their sister on 23.3.2015. However, the Accused has categorically denied the said suggestion and according to him, they have spent Rs.2 Lakhs towards the marriage expenses of his sister and the remaining expenses were borne by the family of the groom.
62. However, when the Complainant claims that, the Accused and his family members has spent about Rs.15 to 20 Lakhs for the performance of the marriage of his sister and the said fact is categorically denied by the Accused, the onus of proving the same is shifted in favour of the Complainant.
63. But interestingly, except his self-asserting claim in this regard, there is no proof led by the Complainant to substantiate the same.
64. Moreover, even if the case of the Complainant about his alleged lending of Rs.3 Lakhs to the Accused for the purpose of the marriage of his sister is assumed for a moment to be true, then the onus is upon the Complainant 25 C.C.No.23141/2015 J to place on record, convincing evidence to show that, the Accused and his family members had the financial capacity of spending about Rs.15 to 20 Lakhs for the purpose of the performance of the marriage of his sister on 23.3.2015.
65. Moreover, if the Accused and his family members had the financial capacity of spending about 15 to 20 Lakhs for the purpose of performing the marriage, then obviously there was no necessity for them to borrow a loan of Rs.3 Lakhs from the Complainant.
66. Therefore, it is clear from the evidence on record, that the Complainant has miserably failed to establish the transaction in question as claimed by him and on the contrary, the Accused has been successful in eliciting the serious doubtful circumstances in the case of the Complainant and in such circumstance, the benefit of such doubt/s need to be extended to the Accused.
67. It is interesting to note that, the Accused has also come up with a defence version that, the loan transaction that existed was only between him and the Complainant and his brother Madhu Babu was not at all a party to such loan transaction and that inspite of it, the Complainant has got filed a false case against his brother through his friend Rajesh Kumar in C.C.No.23144/15.
26 C.C.No.23141/2015 J68. However it is interesting to note that, apart from denying the said defence version, the Complainant has gone to the extent of pleading ignorance to the suggestion that, his friend Rajesh Kumar is prosecuting the said case through the same counsel, who has been representing him in the present case.
69. However, when the record of C.C.No.23144/15 is gone through by this court, it goes to show that, the counsel on record for the Complainant of the present case as well as that of C.C.No.23144/15 is one and the same. No doubt, there is no prohibition for an advocate to prosecute the case on behalf of more than one person, which is filed against the same adversary. However the conduct of the Complainant in denying about the same at one breath and in pleading ignorance about the same at the other breath goes to show that, intentionally he has deposed so falsely.
70. It is interesting to note that, when the Accused has specifically claimed in his chief-examination that, he has repaid the principal loan amount of Rs.1,40,000/= to the Complainant by way of cash and also paid interest of Rs.27,500/= p.m. to the Complainant, interestingly, there is no denial of the same by the Complainant either in his cross-examination or in the cross-examination of the Complainant.
27 C.C.No.23141/2015 J71. No doubt, it is elicited from the Accused that, he has no documents to show that, he has paid Rs.27,500/= towards the interest per month and Rs.1,40,000/= to the Complainant as deposed by him in his chief-examination, when the Complainant himself has failed to prove the passing of consideration by him in favour of the Accused to the extent of Rs.3 Lakhs, certain admissions, though elicited from the Accused do not lead to a suspicious circumstance in his defence version.
72. Therefore viewed from any angle, the case of the Complainant is liable to be dis-believed by this court, since the same suffers from serious omissions, contradictions and suspicious circumstances and on the other hand, the Accused has probabalized his defence and as such, his defence is sufficient to rebut the presumptions available in favour of the Complainant u/Sec.118 and 139 of the N.I.Act. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-conferred u/Sec. 255(1) of the Cr.P.C. the Accused is hereby acquitted of the offence punishable u/Sec.138 of Negotiable Instruments Act.
.28 C.C.No.23141/2015 J
His bail bond and surety bond stands discharged.
(Dictated to the Stenographer, transcript thereof is computerized by her, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 19thday of November, 2018).
(SARASWATHI.K.N), XVI ACMM., Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : R. Vinay Kumar; 2. List of documents exhibited on behalf of the Complainant:- Ex.P.1 : Original Cheque; Ex.P.1(a) : Signature of the Accused; Ex.P.2 : Bank Memo; Ex.P.3 : Office Copy of the Legal Notice; Ex.P.4 : Postal Receipt; Ex.P.5 : Postal Acknowledgement; Ex.P.6 : Reply Notice.
3. List of witness/s examined on behalf of the Accused:-
DW.1 : Sri. Chalapathi.A;
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : Certified copy of the Complaint in C.C.No.23144/15;
Ex.D.2 : Certified copy of the Letter dated:
2.2.2017;29 C.C.No.23141/2015 J
Ex.D.3 : Certified copy of the complaint against the Complainant dated:-19.10.2015;
Ex.D.4 : Certified copy of the complaint dated:7.11.2015;
Ex.D.5 : Statement of Accounts;
Ex.D.6 : Notice from Sriram Transport Finance Company dated: 5.8.2016.
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
30 C.C.No.23141/2015 J19.11.2018 Judgment pronounced in the open court vide separate order ORDER By exercising the power-conferred u/Sec. 255(1) of the Cr.P.C. the Accused is hereby acquitted of the offence punishable u/Sec.138 of Negotiable Instruments Act.
His bail bond and surety bond stands discharged.
XVI ACMM, B'luru.