Bangalore District Court
Mr.R.Jayachandran vs Mr.Sampangirama Reddy on 4 May, 2018
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 4th day of May, 2018
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.26250/2016
Complainant : Mr.R.Jayachandran,
S/o.Raghavan Nair,
Aged about 48 years,
R/at No.16,
II Main road, Kanaka Layout,
Banashankari II
Stage,Kadirenahalli,
Bengaluru - 560 070.
(Rep. by Sri.G.Raghunandan
and Associates, Advs.,)
- Vs -
Accused : Mr.Sampangirama Reddy,
S/o. Chikka Papaiah,
Aged about 46 years,
R/at No.8666, Chandrappa
Building, I Floor,Police Station
Opposite Road,Kishore Layout,
Near Sky Enterprises,
Jigani post, Anekal Taluk,
Bengaluru Urban District -
560 105.
(Rep. by Sri.Bala Reddy R and
Sri.Venkataram, Advs.,)
2 C.C.No.26250/16 J
Case instituted : 26.11.2016
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 4.5.2018
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 acquainted for the past five years and out of the said relationship, the Accused borrowed a hand loan of Rs.6,50,000/= from him on 27.8.2016 for his business needs. He also executed an On Demand Pronote and Consideration Receipt and issued a post dated cheque in his favour vide cheque bearing No. 313100 dated 27.10.2016 for Rs.6,50,000/= drawn on the SBM, Jigani Branch, Bengaluru Urban District and he paid interest in cash on 10.10.2016 for two months.
3. The Complainant has further submitted that, when he presented the said cheque for collection, the 3 C.C.No.26250/16 J same returned dishonored with endorsement as "Funds Insufficient" on 4.11.2016.
4. The Complainant has further submitted that, immediately thereafter left with no other alternative, he got issued a legal notice to the Accused on 7.11.2016 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 the Accused has received the said legal notice, he has neither replied nor has he paid the cheque amount to him. 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, she 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 on 26.11.2016. He has examined as C.W.1 and has filed his affidavit in lieu of his sworn- statement, in which he has reiterated the complaint averments.
4 C.C.No.26250/16 JIn support of his oral evidence, C.W.1 has produced and relied upon the following documentary evidence:-
Ex.C1 is the original cheque, in which the signature identified by the Complainant as that of the Accused is as per Ex.C1(a), Ex.C2 is the Cheque return memo, Ex.C3 is the office copy of the legal notice, Ex.C4 is the Postal Receipt, Ex.C5 is the Postal Acknowledgment and Ex.C6 is the On Demand Pronote and the Consideration Receipt, in which the signatures identified by C.W.1 as those of the Accused as per Ex.C6(a) and C6(b) respectively.
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 on 10.2.2017. 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 claimed the trial.
9. The Complainant has led his post-summoning evidence on 17.3.2017. He has examined as P.W.1 and 5 C.C.No.26250/16 J has filed his affidavit, in which, he has reiterated the complaint averments.
10. In support of his oral evidence, P.W.1 has relied upon the following additional documentary evidence as per Ex.P7 to P10 which are as follows:-
Ex.P7 to P10 are the Statement of accounts of the wife of the Complainant.
11. In support of the case of the Complainant, a witness by name Mr.B.A.Krishna Murthy is examined as P.W.2. This witness has corroborated the evidence of the Complainant by filing his affidavit, in which he has sworn that, he is one of the witnesses to the loan transaction between the Complainant and the Accused on 27.8.2016. He has also deposed that a sum of Rs.6,50,000/= was lent by the Complainant to the Accused in cash on the aforesaid day in his presence and in the presence of his colleague K.Srinivasa Reddy and that he has also signed as one of the witnesses to the document at Ex.C6, being the Pronote and the Consideration Receipt as per Ex.C6©.
12. P.W.2 has been cross-examined extensively by the learned Defence Counsel.
6 C.C.No.26250/16 J13. The statement of the Accused under Sec.313 of the Cr.P.C., has been recorded on 17.2.2018. He has denied the incriminating evidence found against him and though initially, he had chosen to lead his evidence, subsequently, he has chosen not to lead his evidence. As such there is no rebuttal evidence.
14. The learned counsel for the Complainant has addressed his arguments, during the course of which, he has prayed for the conviction of the Accused on the ground that, the Complainant has fulfilled the ingredients of Sec.138 of the N.I.Act.
15. It is also argued that, the Accused admits the two transactions of September 2012, which are admittedly cheque transactions and it is his defence that, in respect of the said two transactions he had given his two signed blank cheques bearing No.313100 and 313099 and a blank pronote to the wife of the Complainant. According to the Accused, the cheque bearing No.313099 was returned to the Accused and a fresh cheque i.e., cheque at Ex.C1 was collected from him.
16. It is also argued that, the entire cross- examination of the Complainant is with regard to 7 C.C.No.26250/16 J technicality and not on merits. There is no cross- examination of the Complainant as to how the cheques of the Accused and the Pronote came to the possession of the former. The Accused has not entered the witness box. The presumption is that, he is aware of the transaction. Therefore it is argued that the Accused is liable to be convicted. Accordingly he has prayed for the conviction of the Accused.
17. In support of his arguments, the learned counsel for the Complainant has relied upon the following decisions:-
i) T.Vasantha kumar Vs., Vijayakumari, reported in 2015 Cr.L.J., 2853;
ii) K.C.Rajesh Vs., T.K.Shanthakumar and another, reported in 2016 Cr.L.J., 836;
iii) K.Subramani Vs., K.Damodara Naidu,
reported in AIR 2015 SCW 64;
iv) Rangappa Vs., Mohan, reported in 2010 Cr.L.J 2871
18. Per-contra, the learned Defence Counsel has addressed his arguments, during the course of which, he has prayed for the acquittal of the Accused on the ground that, the Accused admits only the two transactions of September 2012 through the cheques 8 C.C.No.26250/16 J of the wife of the Complainant and the transaction of loan was only between the wife of the Complainant and the Accused and not between the Complainant and the Accused, as claimed by the Complainant in this case. The Accused has repaid the loan that he had availed from the wife of the Complainant, which is not pleaded by the Complainant in this case.
19. It is also argued that, there is no pleading or proof with regard to the alleged lending. In his cross examination, P.W.1 claims that Rs.2.5 Lakhs was lent through cheques in September 2012, though it is only Rs.2 Lakhs. There are no documents to prove the alleged withdrawal of the amounts by the Complainant, with which, he claims to have lent the loan to the Accused. The Complainant claims to have lent the loan amounts to the Accused on different dates since the said claim on his part suits the entries in his bank statements. But there is absolutely no proof to show the said payments to the Accused.
20. It is argued that the Complainant pleads ignorance with regard to the suggestions put to him in respect of the deposit of Rs.10 Lakhs and Rs.24,80,000/= to his account on the respective dates. He has admitted that he has availed a loan of Rs.10 9 C.C.No.26250/16 J Lakhs as per Ex.P8 on 19.11.2014. However income from loan is not a source of funds to lend loan to others.
21. It is argued that, there is no source of income from business proved by the Complainant and he has further admitted that he has not collected any documents from the Accused at the time of his alleged lending. This conduct of the Complainant is not that of a prudent man. Therefore the claim of P.W.1 that he has lent the loan amounts to the Accused from 2012 to 2014 without collecting any documents from him is highly doubtful.
22. It is further argued that, Ex.C1 of C.C.No.26251/2016 is a created document, in which the contents of it has been forcibly got written from the Accused by dictating the same and the same is got written in the Police Station. There is no witness to the said document examined by the Complainant.
23. It is also argued that, the subject cheque of this case as well as that of C.C.No.26251/2016 were collected by the Complainant from the Accused as signed blank documents on 20.5.2016. Thus according to the Accused, except the transaction of Rs.2 Lakhs 10 C.C.No.26250/16 J between the wife of the Complainant and him in the year 2012, there was no other transaction between the Complainant and him.
24. It is also argued that, the Complainant has claimed in his cross-examination that, he was collecting the interest of Rs.15,000/= or Rs.16,000/= per month from the Accused. But this is a wrong calculation. Therefore the transaction as claimed by the Complainant is false.
25. It is also argued that, in the IT returns at Ex.P12 in C.C.No.26251/2016, a sum of Rs.17,95,000/= is shown as he advances recoverable in cash on in kind as per Ex.P12(a), the gross total income for the Assessment year 2016-17 is shown as Rs.3,75,241/=. Therefore the said document does not help the Complainant, since it does not prove the lending of Rs.9,75,000/= by him to the Accused. Therefore there are several inconsistencies in the evidence of P.W.1. Accordingly he has prayed for the acquittal of the Accused.
25(A). In support of his arguments, the learned Defence Counsel has relied upon the following:-
11 C.C.No.26250/16 J i) The judgment in
C.C.No.16054/2013;
ii) The copy of the complaint in
C.C.No.11735/2017; and
iii) The copy of the complaint in
C.C.No.313/2016.
26. I have considered the submissions and perused the record carefully.
27. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards the payment of the 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;
(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 Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the 12 C.C.No.26250/16 J purpose of this Section means a legally enforceable debt or other liability.
28. 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".
29. 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;"
30. Thus, the Act clearly lays down the 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.
13 C.C.No.26250/16 J31. 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.
32. 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.
33. 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 rebut the said presumption. What is required to be established by the Accused in order to rebut the 14 C.C.No.26250/16 J 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.
34. 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.
35. 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.
36. It is pertinent to note that, in the present case, there is no dispute with regard to the fact that, the subject cheque belongs to the Accused with his signature on it. Likewise there is no dispute with regard to the fact that, there existed a loan transaction between the parties, though according to the Accused, it was between him and the wife of the Complainant 15 C.C.No.26250/16 J and that he had issued the subject cheque of the present case as well as that of C.C.No.26251/2016 as signed blank cheques to her in respect of his loan transaction of Rs.2 Lakhs from her in the month of September 2012.
37. There is no dispute with regard to the fact that the Complainant has fulfilled the ingredients of Sec.138 of the N.I.Act before filing this complaint against the Accused.
38. However, there is a serious dispute on the part of the Accused with regard to his alleged liability under the subject cheque as well as the existence of the legally payable debt or liability by him in favour of the Complainant. In such circumstance, the onus of proving the same beyond reasonable doubt is on the Complainant.
39. In this regard, it could be seen that, the Complainant has relied upon the documentary evidence at Ex.P1 to P10. However the Accused has categorically denied that there existed a loan transaction of Rs.6,50,000/= with the Complainant as claimed by him in this case.
16 C.C.No.26250/16 J40. In the background of the defence of the denial of the alleged loan transaction of Rs.6,50,000/= by the Accused with the Complainant, it is necessary to appreciate the fact that, though there is no rebuttal evidence by the Accused, in the cross-examination of the Complainant itself, the Accused has been able to establish that the Complainant has utterly failed to prove the existence of the alleged loan transaction with him and ass such he is not liable towards him under the subject cheque.
41. It is seen that, according to the Complainant, he has advanced loan to the Accused not at one stretch, but on four different dates commencing from September 2012 to October 2015, among which, the first transaction to the tune of Rs.2,50,000/= is said to be through cheque, while the other transactions are said to be through cash. According to the Complainant, the Accused had agreed to repay the said loan amount with interest at 16 % per annum on or before 20.5.2016.
42. It is pertinent to note that, the Accused has denied the cash transaction of Rs.7,00,000/= as claimed by the Complainant, though he has admitted the cheque transaction. However according to the 17 C.C.No.26250/16 J Accused, even the said cheque transaction was not between the Complainant and him and that on the other hand, it was between him and the wife of the Complainant. this is clearly elicited from the mouth of P.W.1 in his cross-examination, during which, though initially deposed that he has his bank statements in respect of his lending of Rs.2,50,000/= to the Accused in the month of September 2012 through account payee cheque, subsequently he has claimed that he has lent the said amount to the tune of Rs.2,00,000/= through the account payee cheque and Rs.50,000/= also through cheque, but he does not remember as to if it was an open cheque or an account payee cheque.
43. However when it is suggested to P.W.1 that, he had no impediment to produce his statement of accounts in respect of his lending of Rs.2 Lakhs to the Accused through account payee cheque, he has come up with the truth that it was lent through the cheque of his wife. He has also admitted the suggestion that a sum of Rs.2 Lakhs has been lent to the Accused on 4.9.2012 through two cheques of his wife for Rs.1 Lakh each. This admission clearly probablises the defence of the Accused that the said transaction of Rs.2 Lakhs through cheques was between the wife of the Complainant and the Accused, because if the same 18 C.C.No.26250/16 J was really lent by the Complainant, then there was no impediment to him to lend the same through his cheque/s, instead of through the cheques of his wife. Therefore the fact that, a sum of Rs.2 Lakhs has been admittedly paid to the Accused through the cheques of the wife of the Complainant, which is proved with the admission of the Complainant clearly corroborates the defence theory of the Accused.
44. It is pertinent to note that, another serious defence raised by the Accused is with regard to the financial capacity of the Complainant at the relevant point of time.
45. In this regard, during the course of the cross- examination of the Complainant, it is elicited from him that he is doing the business of supplying the building materials and he is also doing real estate business and that he has a monthly income of Rs.50,000/= to Rs.60,000/= from the said business and that he has an annual income of about Rs.6 to 7 Lakhs since 2009 and that he has his IT documents to substantiate this fact. However it could be seen that though initially P.W.1 had not produced his IT returns subsequently he has produced his IT Returns as per Ex.P12 of C.C.No.26251/2016, which is admittedly filed by him 19 C.C.No.26250/16 J on 13.6.2017. However he has failed to produce his IT Returns concerning the Assessment years from 2011- 12 to 2015-16.
46. Though the Complainant has relied upon the entry at Ex.P12(a) in C.C.No.26251/2016 to show that, he has declared a sum of Rs.17,95,000/= as the advances recoverable in cash on in kind, it could be seen that gross total income for the Assessment year 2016-17 is declared by him as Rs.3,75,241/=.
47. However only by relying upon the entry at Ex.P12(a), it cannot be inferred that, it is the entry in respect of the alleged loan transaction of Rs.6,50,000/= between the Complainant and the Accused. However, it could be seen that, except the IT Returns at Ex.P12, there is no other document to prove the alleged loan transaction between the parties.
48. It is further pertinent to note that, for the first time in his cross-examination, the Complainant has claimed that, he has lent the loan amount to the Accused on different dates by withdrawing the same from September 2012 to October 2015.
20 C.C.No.26250/16 J49. It is interesting to note that, though P.W.1 has deposed in his cross-examination that, he had withdrawn the amounts from his ICICI Bank Account, during the subsequent course of the proceeding, he has produced the documentary evidence as per Ex.P7 to P10. However the said documents go to show that, they are the statement of accounts relating to the wife of the Complainant/Smt. Sheeba Jayachandran.
50. However it is pertinent to note that, it is not the case of the Complainant that, he has lent the loan to the Accused by withdrawing the amounts from the account of his wife or that it is his wife who has lent the loan to the Accused. In such circumstance, the documentary evidence as per Ex.P7 to P 10 produced by the Complainant introduces a new case without the same is being supported by pleading. It is a well settled position of law that, there can be no proof without a pleading. Therefore the mere production of the documentary evidence as per Ex.P7 to P10 does not help the case of the Complainant, in the absence of pleading with regard to the same.
51. It is further pertinent to note that in respect of two entries dated 19.11.2014 and 29.11.2014 in Ex.P8, when the Complainant has been cross 21 C.C.No.26250/16 J examined by the learned Defence Counsel by suggesting to the former that the said amounts were the loan amounts credited to the said account, interestingly he has neither admitted nor denied the said suggestion. Instead he has pleaded ignorance to the same.
52. However thereafter he has claimed that he had sold a site and had received the amount through the said sale transaction, he has again pleaded ignorance when it is suggested to him that it is not from the sale proceeds, but from the loan transactions.
53. The Complainant, who is admittedly an educated person is not expected to plead ignorance with regard to the deposit of huge amounts of Rs.10 Lakhs and Rs.24,80,000/= to the account of his wife. Therefore the conduct of the Complainant in pleading ignorance in respect of the said amounts also creates a serious doubt about his case.
54. Further it could be seen that even though the Complainant has claimed in his cross-examination that, he had sold the gold in the month of July 2016 for Rs.2,50,000/= and he had the balance amount in his house and he has also claimed that he has the 22 C.C.No.26250/16 J documents in this regard, he has not produced the same before this court. However it is seen that for the reasons best known to him, he has not produced any such document before this court.
55. Even otherwise it is not the claim of the Complainant in this case that he has lent any loan to the Accused after July 2016. According to his own version, his last payment of the loan to the Accused in respect of his alleged loan of Rs.6,50,000/= was in the month of October 2015.
56. According to P.W.1, he has lent Rs.6,50,000/= to the Accused on 27.8.2016, his case also seems to be doubtful in view of the fact that, when as on 27.8.2016, the Accused had already availed a loan of Rs.9,75,000/= which was not at all repaid either in full or in part, the former could have ventured to advance a fresh loan of Rs.6,50,000/= to him.
57. Moreover when the Complainant claims that he had already advanced the loan to the Accused starting from 2012 to October 2015, then again he claims that he has arranged funds to the tune of Rs.6,50,000/= his claim which is only based on his self-serving testimony cannot be believed by this court.
23 C.C.No.26250/16 J58. Though the explanation offered by the Complainant in this regard is that the Accused had offered to give him a site at half of the price to which they were being sold to others after repaying Rs.6,50,000/= to him, there is no proof regarding such an offer alleged to have been made by the Accused to P.W.1. As such the same cannot be accepted and believed by this court.
59. Now coming to another serious circumstance in the case of the Complainant which is with regard to the payment of interest on the alleged loan of Rs.6,50,000/=. Though according to the Complainant the Accused is said to have paid a monthly interest of Rs.12,500/= or Rs.13,000/= at the rate of 12 % per annum, there is no proof regarding the same. Moreover the Complainant has not even been able to say as to what is the total amount that has been collected by him from the Accused towards 16 % interest from October 2015.
60. Now coming to the serious defence of the Accused with regard to the document at Ex.C1 of C.C.No.26251/2016, it could be seen that, no doubt as could be observed, the name of the Accused is shown 24 C.C.No.26250/16 J as the purchaser of the stamp paper in respect of the document at Ex.C1. However just because the name of the Accused is shown as the purchaser of the said stamp paper it does not lead to an inference that, the said document is proved as per law. No doubt the Accused has admitted his signature on the said document as well as on the cheque in dispute, but it is his specific defence that the said document was forcibly got written through him in the police station on 20.5.2016.
61. Though it is claimed by the Complainant that the contents of the document at Ex.C1 of C.C.No.26251/2016 has been executed in the presence of one PNK Rao and that it is also signed by the said person as a witness and these facts are specifically denied by the Accused, the Complainant has not chosen to examine the said person as a witness in this case so as to prove the document at Ex.C1 as per law. This also leads to an adverse inference against the Complainant.
62. No doubt, merely because a cheque is collected in the Police Station, it does not qualify as an invalid cheque. However as rightly pointed out by the learned Defence Counsel, the contents of Ex.C1 clearly 25 C.C.No.26250/16 J goes to show that, it does not appear to be written by the Accused voluntarily and it appears that the same has been dictated someone who is well versed in drafting the documents. This doubtful circumstance in the execution of the document at Ex.C1 also corroborates the defence of the Accused.
63. It is pertinent to note that the witness who is examined as P.W.2 in this case has supported the case of the Complainant. However from his cross- examination finally, the learned Defence Counsel has been successful to establish before this court that this witness at P.W.2 is not a trustworthy witness, since throughout his cross-examination, though P.W.2 has claimed that, he and his other colleague K.Srinivasa Reddy had visited the house of the Complainant at about 1.30 Pm to 1.45 pm on 27.8.2015, while being on duty, finally he came up with a claim that on that day, he and his aforesaid colleague were on leave due to their respective personal works. However this witness, who is undoubtedly a material witness has failed to adduce evidence so as to prove that he and his other colleague were on leave on that day. With this oral evidence of P.W.2, I have no impediment to hold that this witness is a cooked up witness and as such he is not a reliable and trustworthy witness.
26 C.C.No.26250/16 J64. In such circumstance, I am of the sincere opinion that the evidence of this witness in respect of the documentary evidence at Ex.C6 is not worth reliable. As such I am of the opinion that the defence of the Accused in respect of the documentary evidence at Ex.C6 seems to be probable and believable.
65. It is also pertinent to note that, the Complainant has also admitted that his wife and he have filed similar cheque bounce cases against various other persons as well. These admissions lead to an inference that the Complainant and his wife are professional money lenders without possessing a valid license to do so. Though this may not be the forum to give a finding about the same, it may not be out of place to consider the fact that any such money, even if it is allegedly lent, becomes a legally irrecoverable debt. Therefore even on this ground the case of the Complainant is bound to fail.
66. Now coming to the defence of the Accused with regard to the source of his cheques and the document at Ex.C1 of C.C.No.26251/2016 and Ex.C6 of this case is that, he had availed a loan of only Rs.2 Lakhs from the wife of the Complainant in the year 27 C.C.No.26250/16 J 2012 and that towards the security of the said loan transaction he had issued the subject cheque of this case as well as that of C.C.No.26251/2016, the signed blank pronote and despite it's repayment by him to his wife, he has filed this case and C.C.No.26251/2016 by misusing the said documents by presenting the respective cheques in his name. Though this defence is denied by the Complainant, the same is probablised by the Accused by eliciting material admissions from the former.
67. Therefore it is clear that, the Complainant has miserably failed to establish the transaction in question between the Accused and him and he has also failed to establish the fact that the subject cheque was issued by the Accused to him towards the discharge of the legally payable debt by the latter.
68. Thus the appreciation of the evidence on record clearly reveals that the Complainant has utterly failed to prove the existence of the alleged loan transaction of Rs.6,50,000/= with the Accused as well as the existence of the legally payable debt by the Accused in his favor and he has also failed to prove his source of funds for having allegedly lent Rs.6,50,000/= to the Accused, and also the fact that the Accused has 28 C.C.No.26250/16 J issued the subject cheque to him towards the discharge of his legally payable debt in his favor.
69. Therefore the fact that, there is no rebuttal evidence led by the Accused has no impact on the result of this case, since the Complainant himself has miserably failed to prove his case beyond reasonable doubt and as such his case is bound to fail. Accordingly, I proceed to pass the following:-
ORDER By exercising the power conferred u/s 255(1) of Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act.
His bail bond and surety bond stands discharged.
(Dictated to the Stenographer online, computerized and print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 4th day of May, 2018).
(SARASWATHI.K.N), XVI ACMM., Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.R.Jayachandran;
29 C.C.No.26250/16 J
P.W.2 : Sri. B.A.Krishna Murthy.
2. List of documents exhibited on behalf of the Complainant:-
Ex.C-1 : Original cheque;
Ex.C-1(a) : Signature of the Accused;
Ex.C-2 : Bank memo;
Ex.C-3 : Office copy of the Legal notice;
Ex.C-4 : Postal Receipt;
Ex.C-5 : Postal Acknowledgment;
Ex.C-6 : ON Demand Pronote and Consideration
Receipt;
Ex.C-6(a) and : Signatures of the Accused;
(b) Ex.C-6© : Signature of P.W.2;
Ex.P7 to P10 : Statement of Accounts of the account of the wife of P.W.1.
3. List of witness/s examined on behalf of the Accused:-
- Nil -
4. List of documents exhibited on behalf of the Accused:-
- Nil -
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.30 C.C.No.26250/16 J
4.5.2018 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power conferred u/s 255(1) of Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act.
His bail bond and
surety bond stands
discharged.
XVI A.C.M.M., B'luru.
31 C.C.No.26250/16 J