Bangalore District Court
Smt. Anjana A. Shanthaveer vs Sri Babu Rao Chinchansur on 22 April, 2021
IN THE COURT OF LXXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH 82)
Present:
Sri T. N. Inavally, B.A.L., LL.B.,
LXXXI Addl. City Civil & Sessions Judge,
Bengaluru City (CCH-82)
(Special Court exclusively to deal with criminal cases
related to elected MPs/ MLAs in the State of Karnataka)
Dated this the 22nd day of April, 2021
Spl. C. No. 185 / 2018
COMPLAINANT: Smt. Anjana A. Shanthaveer
D/o Sri Ananda Kumar
Aged about 37 years
(since dead, represented by LRs)
1. Smt. Archana W/o Sri Ananda Kumar
Major
2. Sri Sumantha A.
S/o Late Anjana A. Shanthaveer
Aged about 18 years
Both are R/at No.31, 1st Floor
3rd Cross, Adarsha Nagar
Nagarabhavi 1st Stage
Bengaluru-560 072
(Sri G.S. Venkat Subbarao,
Advocate for the Complainant)
V/s
ACCUSED: Sri Babu Rao Chinchansur
S/o late Basavanappa Chinchansur
Aged about 65 years
R/at: Room No.450,
Legislature's House
Bengaluru-560 001
Also at No.125, Shanthi Nagar
MSK Mill road, Gulbarga
(Sri ASM, Advocate for the accused)
*****
2 Spl.C. No.185/2018
JUDGMENT
This case is registered against the accused for the offence punishable under Sec.138 of Negotiable Instruments Act ('N.I. Act' for short) on the complaint of the complainant, wherein she has prayed for taking cognizance of the above said offence against the accused and punish the accused in accordance with law and to grant such other reliefs in the interest of justice.
2. The prosecution was set into motion by the complainant by filing complaint against the accused before the learned Chief Metropolitan Magistrate, Bengaluru. The case of the complainant is that the accused is the known acquaintance of the complainant and her family members for several years and on account of such proximity, the accused who was in need of money requested the complainant to extend financial assistance for discharging his legal liabilities incurred towards his business, industrial and agricultural establishments. The complainant agreed to render financial assistance as requested by the accused and accordingly, the accused borrowed in all a sum of Rs.11,88,00,000/- (Rupees Eleven Crore Eighty Eight lakh only) by way of cash as hereunder:
Sl.No. Date of borrowal Amount in Rs.
1. 05.01.2011 1,18,00,000/-
3 Spl.C. No.185/2018
2. 25.02.2011 50,00,000/-
3. 01.03.2011 33,00,000/-
4. 07.03.2011 1,72,00,000/-
5. 15.05.2011 2,58,00,000/-
6. 21.06.2011 85,00,000/-
7. 07.07.2011 1,70,00,000/-
8. 02.08.2011 50,00,000/-
9. 17.08.2011 60,00,000/-
10. 28.08.2011 1,00,00,000/-
11. 19.09.2011 50,00,000/-
12. 26.09.2011 42,00,000/-
TOTAL Rs.11,88,00,000/-
Hence, in a span of about 9 months the accused borrowed a sum of Rs.11,88,00,000/- from the complainant and on 26.09.2011 the accused executed a receipt and acknowledgement in favour of the complainant in the presence of witnesses for having borrowed the said amount Rs.11,88,00,000/- agreeing to repay the same within one year from 26.09.2011 with interest at 12% p.a. But the accused failed to keep up the promise and he did not make any payment as per the said receipt and acknowledgment. The complainant met the accused on several occasions and demanded repayment of the said amount. But in spite of repeated requests and demands the accused failed to pay the amount borrowed. Thereafter, upon persistent demand for payment of the amount, the accused issued a cheque bearing No.692458 dated 30.04.2015 for an amount of Rs.11,88,00,000/- drawn on State Bank of Mysore, Vidhana 4 Spl.C. No.185/2018 Soudha Branch, Bengaluru-1 in favour of the complainant towards discharge of the above said loan amount. The complainant presented the said cheque for encashment through her banker i.e., the Karnataka State Co-Operative Apex Bank Ltd., Chandra Layout Branch, Bengaluru. But the said cheque was returned to the complainant unencashed with endorsement dated 05.05.2015 for the reason of 'insufficient funds'. Thus the cheque issued by the accused towards discharge of legal liability was dishonoured. The fact of dishonour of the said cheque was brought to the notice of the accused by the complainant by issuing legal notice dated 13.05.2015 as contemplated under Sec.138 of N.I. Act calling upon the accused to pay the cheque amount within stipulated period. The said legal notice was sent to the accused by way of registered post and also through courier.
3. It is also the case of the complainant that the said legal notice was duly served to the accused. But the accused failed to comply with the demand made in the legal notice regarding payment of the cheque amount. On the other hand, he issued an untenable reply making certain false and frivolous allegations against the complainant. The allegations made in the reply notice 5 Spl.C. No.185/2018 issued by the accused are defamatory in nature and the complainant reserves her right to proceed against the accused by taking appropriate action. But the fact remains that the accused failed to repay the cheque amount after the cheque was dishonoured, even though the legal notice was duly served to him. Hence, the accused has committed the offence punishable under Sec.138 of N.I. Act. The cheque issued by the accused is dated 30.04.2015; it was presented for encashment by the complainant on the same day; the banker of the complainant issued the bank memo dated 05.05.2015 intimating the dishonour of the said cheque; thereafter the legal notice was issued on 13.05.2015, which was duly served to the accused and he issued untenable reply on 25.05.2015. Hence, the cause of action for the complaint arose on 30.04.2015 and thereafter on 05.05.2015 the date on which the cheque was dishonoured, within the jurisdiction of the concerned Magistrate. The complainant has produced the relevant documents along with the complaint and therefore, she has prayed for registering the case against the accused for the offence punishable under Sec.138 of N.I. Act and to proceed against the accused accordingly.
6 Spl.C. No.185/2018
4. As mentioned herein above, the complaint was filed before learned Chief Metropolitan Magistrate, Bengaluru and thereafter the case was made over to the learned XV Addl. CMM, Bengaluru ('the learned Magistrate' for short) for further proceedings. Accordingly, the learned Magistrate took cognizance of the offence punishable under Sec.138 of N.I. Act against the accused and recorded sworn statement of the complainant. On considering the material on record, the learned Magistrate registered case against the accused for the offence punishable under Sec.138 N.I. Act and issued summons to the accused.
5. In pursuance of the service of summons, the accused appeared through his counsel before the learned Magistrate and got enlarged on bail. The copy of complaint was furnished to the accused and hence, the provision of Sec.204(3) of the Code of Criminal Procedure ('Cr.P.C.' for short) was complied with. The learned Magistrate recorded plea of the accused for the offence punishable under Sec.138 of N.I. Act, to which the accused pleaded not guilty and thereby claimed to be tried.
6. In support of the case of the complainant she got herself examined as PW1. However, when the case was at the stage of 7 Spl.C. No.185/2018 further evidence of the complainant, in view of establishment of this Special Court exclusively to deal with the criminal cases related to the elected MPs/ MLAs in the State of Karnataka and the accused being the sitting MLA, the learned Magistrate sent the case to this Court for further proceedings. Accordingly, the matter is taken up before this Court and this case is registered as Spl. C No.185/2018.
7. After receipt of the record by this Court, the matter has been proceeded with. The complainant as PW1 was further examined in full. The complainant has produced documents at Exs.P.1 to P.18. Thereafter, during the pendency of the case the complainant has died and hence, her LRs are brought on record. The LRs of the complainant have examined one more witness as PW2 in support of the case of complainant and got marked documents at Exs.P.19 to P.21. Hence, in support of the case of the complainant two witnesses-PW1 and PW2 are examined and the documents at Exs.P.1 to P.21 are produced.
8. After closing of the evidence of complainant, this Court has recorded the statement of the accused under Sec.313 of Cr.P.C., in which the accused has denied incriminating materials 8 Spl.C. No.185/2018 forthcoming against him in the evidence of complainant as false. Further, in the said statement, the accused has submitted that he gave complaint before the police against the complainant regarding theft of his cheque and the police filed charge sheet against the complainant in the said case. The submission of the accused in his statement recorded under Sec.313 of Cr.P.C., reads thus:
"ಚಕಕ ಕ ಕಳವ ಆಗದ ಅಅತ ನನಕ ಪರರದಯ ಮಮಲ ಪಮಲಮಸರಗ ಪರರದ ಕಕಟಟದದ ಕ ಪರರದಯ ಮಮಲ ಪಮಲಮಸರಕ ಚರರ ಶಮಟ ಹಕದರ."
But the accused has not chosen to adduce any defence evidence on his behalf. However, in the evidence in cross-examination of PW1 and PW2 the accused has produced documents on his behalf and got marked them at Exs.D.1 to D.16.
9. Heard the arguments of the learned counsel for the complainant and the learned counsel for the accused. The learned counsel for both the parties have furnished citations in support of their arguments. Perused the oral and documentary evidence forthcoming on record. Now the points that arise for my consideration are:
1) Whether the complainant proves beyond reasonable doubt that the accused borrowed a sum of Rs.11,88,00,000/- (Rupees Eleven Crore Eighty eight 9 Spl.C. No.185/2018 lakh only) from her and towards repayment of the said loan amount issued cheque in her favour and when it was presented for encashment, the said cheque was dishonoured for the reason 'funds insufficient' and thereafter, in spite of issuance of legal notice by the complainant and service of the same to the accused, the accused failed to make payment of the cheque amount and thereby the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?
2) What order?
10. After hearing the argument of both the parties and on considering the oral and documentary evidence forthcoming on record and also the principles of law laid down in the decisions relied on by both the parties, my findings on the above point are as hereunder:
Point No.1: In the Negative Point No.2: As per final order For the following:
REASONS
11. Point No.1: The complainant has got herself examined as PW1 in support of her case. The PW1 has filed her affidavit as evidence in chief-examination reiterating the facts averred in the complaint. It is the definite case of the complainant that the accused had borrowed a sum of Rs.11,88,00,000/- and for having received the said sum on several dates, the accused issued a receipt 10 Spl.C. No.185/2018 and acknowledgement in her name on 26.09.2011 and thereafter for payment of the said amount the accused issued the cheque bearing No.692458 dated 30.04.2015 for the amount of Rs.11,88,00,000/- drawn on State Bank of Mysore, Vidhana Soudha Branch, Bengaluru. But, on presentation of the said cheque for encashment, it was returned unencashed with bank endorsement for 'funds insufficient'. Hence, the entire case of the complainant regarding loan transaction between the accused and herself is based on the receipt and acknowledgement dated 26.09.2011 alleged to have been executed by the accused in her favour. The said receipt and acknowledgement is produced by the complainant as per Ex.P.1. The signature of the accused in Ex.P.1 is got marked by the complainant in her evidence as per Ex.P.1(a).
12. As submitted by the learned counsel for the complainant, the document at Ex.P.1 was executed on 26.09.2011 in which the payment of loan amount for 12 times is mentioned in the table, in total Rs.11,88,00,000/-. Hence, the contents of the receipt and acknowledgement at Ex.P.1 is in accordance with the complaint averments. The cheque dated 30.04.2015 said to have been issued by the accused in favour of the complainant regarding payment of 11 Spl.C. No.185/2018 the said amount is produced at Ex.P.2. The signature of the accused in Ex.P.2 is marked at Ex.P.2(a). The document at Ex.P.3 is the counterfoil of the challan for having presented the cheque at Ex.P.2 for encashment by the complainant through her banker the Karnataka State Co-Op. Apex Bank Ltd. Bengaluru. The document at Ex.P.4 is the memo dated 05.05.2015 issued by the banker of the complainant regarding returning of the cheque at Ex.P.2 unencashed for the reason 'funds insufficient'.
13. As stated by the complainant in her complaint and also in her evidence in chief-examination as PW1, on 13.05.2015 she issued legal notice to the accused demanding the accused to repay the cheque amount. The copy of the said legal notice is produced at Ex.P.5. The documents at Exs.P.6 and P7 are postal receipts for having sent the notice at Ex.P.5 to the accused to his two different addresses, one at Gulbarga and another at Bengaluru. As contended by the complainant, the notice at Ex.P.5 was also sent to the accused by courier and the documents at Exs.P.8 and P9 are courier receipts for having sent the notice at Ex.P.5 to the accused to his two different addresses at Gulbarga and Bengaluru. The complainant has produced reply notice issued by the accused 12 Spl.C. No.185/2018 through his counsel to the notice at Ex.P.5 and the said reply notice is at Ex.P.10. The reply notice at Ex.P.10 is dated 25.05.2015. In the said reply notice it is clearly stated that the legal notice issued by the complainant was placed in the hands of the learned counsel for the accused with instructions to reply thereto. Hence, from the reply notice at Ex.P.10 it is clear that the notice at Ex.P.5 was served to the accused earlier to 25.05.2015. The complainant has stated in her evidence that in spite of service of the legal notice at Ex.P.5, the accused did not make any payment, but he got issued an untenable reply. Hence, the complainant is constrained to file the complaint.
14. As argued by the learned counsel for the complainant, it is true that the accused has not disputed his signature at Ex.P.2(a) in the cheque at Ex.P.2. But the accused utterly denied that he borrowed any amount from the complainant as mentioned in the receipt and acknowledgement at Ex.P.1. The accused has also denied that he issued any cheque at Ex.P.2 in favour of the complainant regarding repayment of any loan amount. As submitted by the learned counsel for the accused, at the initial stage itself while issuing reply at Ex.P.10 the contention of the 13 Spl.C. No.185/2018 accused is that he neither borrowed any amount nor issued the cheque at Ex.P.2 regarding payment of any such loan amount in favour of the complainant for discharge of any debt or liability towards her.
15. As pointed out by the learned counsel for the accused, the relevant portion in the reply notice at Ex.P.10 reads thus:
"2(a). The story projected by your client in the notice under response and the documents referred to in the notice are the result of theft and rank forgery committed by your client with the dishonest intention of enriching herself, if possible, to some extent or the other by adopting blackmail tactics."
The relevant portions in the reply notice at Ex.P.10 also read thus:
"6. The cheque referred to in the notice under response is the one among several other cheque leaves that were found in the cheque book issued to our client by his banker sometime during the year 2010. Our client has not only used the cheque book which he had collected during the year 2010, but has also used several other cheque books containing several cheque leaves between the years 2010 and 2015. during the year 2010, our client had given the cheque book containing the cheque leaf in question also to Annarao Muttathi who had sheltered your client, her younger brother and her mother. In fact, to the exclusion of your client, your client's younger brother and her mother even to this day, enjoy the helping hand of Annarao Muttathi for their living and existence. Our client, who during the year 2010, was a Legislator and who, most of the time used to stay at Gurumithkal in Yadgiri District to nurse his Constituency and also to attend to the grievances of the people of his Constituency, had left the cheque book containing the cheque leaf in question also while signing all the cheque leaves available in that cheque book with Annarao Muttathi, so as to enable him to draw the amounts standing to his credit in 14 Spl.C. No.185/2018 his account as and when became necessary and to send the amount to drawn to him or to utilise the same for the purposes which he used to indicate. The amounts that were being credited to the account of our client which he had maintained in the State Bank of Mysore, Vidhana Soudha Branch, Bengaluru, were the one payable to him towards his salary, as a Legislator, Travelling Allowance, Dearness Allowance and certain other statutory payments which he was entitled to get as a Legislator.
6(a). Our client has every reason to believe that during the year 2010, at a point of time, when your client used to visit the house of Annarao Muttathi, at which place, her mother has been staying under the guise of seeing her, appears to have stealthily removed the cheque leaf in question from the cheque book that was available in the house of Annarao Muttathi.
7. In view of what has transpired, a bird's eye-view of which is, as mentioned above, unless and until your client apologises for the blunder which she has committed not only for stealthily removing the cheque leaf from the cheque book that was kept by our client with Annarao Muttathi during the year 2010 and thereafter, forging it to make it appear as if the same is issued by our client on 30.04.2015 for the discharge of his tell-tale liability to the extent of Rs.11,88,00,000/- being the total sum alleged to have been advanced by your client......"
Hence, the defence put forth by the accused in his reply notice is that as per his contention the complainant appears to have stealthily removed the cheque in question from the cheque book that was available in the house of Annarao Muttathi.
16. It is the contention of the accused in the evidence in cross-examination of PW1 that the complainant had no financial 15 Spl.C. No.185/2018 capacity to lend any amount, much less the loan to the extent of Rs.11,88,00,000/- at any point of time and therefore, the alleged loan itself is the concocted story of the complainant. The accused has also contended that the receipt and acknowledgement at Ex.P.1 is concoction of the complainant to suit her contention regarding the alleged loan amount. However, as submitted by the learned counsel for the complainant, it is true that the accused has not chosen to adduce any evidence on his behalf to prove his defence. Further, the submission of the learned counsel for the complainant is that there is presumption under Sec.139 of N.I. Act in favour of the holder.
17. As pointed out by the learned counsel for the complainant, the provision of Sec.139 of N.I. Act reads thus:
"Sec.139. Presumption in favour of holder.
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
Moreover, in support of this contention the learned counsel for the complainant has relied on the decision of the Hon'ble Apex Court reported in (2019) 18 SCC 106 (Rohitbhai Jivanlal Patel Vs. State of Gujarat and another) in which it is held that:
16 Spl.C. No.185/2018
"13. For determination of the point as to whether the High Court was justified in reversing the judgment and orders of the Trial Court and convicting the appellant for the offence under Section 138 of the NI Act, the basic questions to be addressed to are two-fold: as to whether the complainant- respondent No. 2 had established the ingredients of Sections 118 and 139 of the NI Act, so as to justify drawing of the presumption envisaged therein; and if so, as to whether the accused-appellant had been able to displace such presumption and to establish a probable defence whereby, the onus would again shift to the complainant?
15. So far the question of existence of basic ingredients for drawing of presumption under Sections 118 and 139 of the NI Act is concerned, apparent it is that the accused-appellant could not deny his signature on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of Rs. 3 lakhs each. The said cheques were presented to the Bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The Trial Court had also consciously taken note of these facts and had drawn the requisite presumption. Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e., the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the accused-appellant to establish a probable defence so as to rebut such a presumption."
The learned Counsel for the complainant has also relied on another decision of the Hon'ble Apex Court reported in (2019) 16 SCC 83 (Shree Daneshwari Traders Vs. Sanjay Jain and another) in which it is held as under:
17 Spl.C. No.185/2018
"The courts below erred in brushing aside the evidence of PW-1 on the ground that there were no averments in the complaint as to the purchases made by cash and purchase. The courts below also erred in not raising the statutory presumption under Section 139 of the Act that the complainant received the cheques to discharge the debt or other liability in whole or in part.
It is for the respondent-accused to adduce evidence to prove that the cheques were not supported by consideration and that there was no debt or liability to be discharged by him."
Further, the learned counsel for the complainant has relied on one more decision of Hon'ble Apex Court reported in (2019) 4 SCC 197 (Bir Singh Vs. Mukesh Kumar) in which it is held that:
"32. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act.
33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."18 Spl.C. No.185/2018
In the said decision it is also held that:
"37. The fact that the appellant-complainant might have been an Income Tax practitioner conversant with knowledge of law does not make any difference to the law relating to the dishonour of a cheque. The fact that the loan may not have been advanced by a cheque or demand draft or a receipt might not have been obtained would make no difference."
Moreover, the learned counsel for the complainant has relied on another decision of the Hon'ble Apex Court reported in 2021 SCC OnLine SC 201 (Sumeti Vij Vs. Paramount Tech Fab Industries) in which in the case for the offence punishable under Sec.138 of N.I. Act, it is held that:
"13. The object of introducing Section 138 and other provisions of Chapter XVII in the Act appears to be to enhance the acceptability of cheques in the settlement of liabilities. The drawer of the cheque be held liable to prosecution on dishonour of cheque with safeguards provided to prevent harassment of honest drawers. Section 138 primarily relates to a civil wrong and the amendment made in the year 2000 specifically made it compoundable. The burden of proof was on the accused in view of presumption under Section 139 of the Act and the standard of proof was of "preponderance of probabilities".
The learned counsel for the complainant has also drawn the attention of this Court to the judgment of the Hon'ble Apex Court in Cr.A. No.123 of 2021 (Arising out of SLP (Crl.) No.1876 of 2018) 19 Spl.C. No.185/2018 (M/s. Kalamani Tex & another Vs. P. Balasubramanian) in which it is held that:
"15. Once the 2nd Appellant had admitted his signatures on the cheque and the Deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial Court fell in error when it called upon the Complainant - Respondent to explain the circumstances under which the appellants were liable to pay. Such approach of the trial Court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law."
On the basis of the principles of law laid down in the above referred decisions the submission of the learned counsel for the complainant is that there is presumption regarding legally enforceable debt in respect of the cheque at Ex.P.2 issued by the accused.
18. On the other hand, as argued by the learned counsel for the accused and also as forthcoming in the above referred decisions relied on by the learned counsel for the complainant, it is clear that the presumption mandated by the Sec.139 of N.I. Act does indeed include existence of legally enforceable debt or liability. It is open to the accused to raise defence wherein existence of a legally enforceable debt or liability can be contested. 20 Spl.C. No.185/2018 However, there can be no doubt that there is an initial presumption which favours the complainant.
19. It is true that in the case on hand, the accused has not adduced any defence evidence to rebut the presumption under Sec.138 of N.I.Act. But as pointed out by the learned counsel for the accused and as held in the decision referred above reported in (2019)18 SCC 106, which is relied on by the learned counsel for the complainant, it is clear that apart from adducing direct evidence, the accused may also rely upon circumstantial evidence, if circumstances so relied upon are compelling, burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, such as those mentioned in S.114 of Evidence Act to rebut presumptions arising under Sec.118 and 139 of N.I. Act. The accused has also option to prove non-existence of consideration or liability either by letting in evidence or in some clear and exceptional cases from averments made in complaint, statutory notice and evidence adduced by complainant during trial.
20. Moreover, the learned counsel for the accused has relied on the decision of Hon'ble Apex Court reported in (2014) 2 SCC 236 (John K. Abraham Vs. Simon C. Abraham and another) in 21 Spl.C. No.185/2018 which referring to Sec.118, 139 and 138 of N.I. Act on the facts of the said case the Hon'ble Apex Court has observed that:
"6. When we examine the case of the respondent- complainant as projected before the learned Chief Judicial Magistrate and the material evidence placed before the trial Court, we find that the trial Court had noted certain vital defects in the case of the respondent-complainant. Such defects noted by the learned Chief Judicial Magistrate were as under:
6.1. Though the respondent as PW-1 deposed that the accused received the money at his house also stated that he did not remember the date when the said sum of Rs.1,50,000/- was paid to him. 6.2. As regards the source for advancing the sum of Rs.1,50,000/-, the respondent claimed that the same was from and out of the sale consideration of his share in the family property, apart from a sum of Rs.50,000/-, which he availed by way of loan from the co-operative society of the college where he was employed. Though the respondent stated before the Court below that he would be in a position to produce the documents in support of the said stand, it was noted that no documents were placed before the Court below."
The learned counsel for the accused has relied on another decision of the Hon'ble Apex Court reported in (2019) 5 SCC 418 (Basalingappa Vs. Mudibasappa) in which referring to its earlier decision reported in (2006) 6 SCC 39 (M.S. Narayana Menon Vs. State of Kerala) the Hon'ble Apex Court was pleased to hold:
"What is needed is to raise a probable defence, for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the complainant can be relied upon."22 Spl.C. No.185/2018
Moreover, the learned counsel for the accused has relied on the decision of our Hon'ble High Court of Karnataka reported in 2011 SCC OnLine Kar 3895 (M.B. Rajasekhar Vs. Savithramma) in which referring to several decisions of the Hon'ble Apex Court it is held that:
"Any how, in the catena of decisions, the Apex Court has held that once the execution of the cheque is admitted, a presumption arises under Sec.139 of the Act in favour of the complainant, that the said cheque was issued towards the discharge of the debt or liability, but it is observed that the presumption that arises is rebuttable and in case, if the accused raised a probable defence, it is sufficient to rebut the presumption raised under Sec.139 of the Act"
If the principles of law laid down in the above referred decisions relied on by the learned counsel for complainant and also the decisions relied on by the learned counsel for the accused are considered, it is clear that the presumption under Sec.139 of N.I. Act is rebuttable presumption and it is upto to the accused to rebut such presumption by adducing defence evidence on his behalf or making out circumstances on the basis of the evidence adduced by the complainant to show that the presumption in favour of the complainant under Sec.139 of N.I. Act is rebutted. Hence, in the background of the principles of law laid down in the above 23 Spl.C. No.185/2018 referred decisions and also in view of the provision of Sec.139 of N.I. Act, the evidence available on record on behalf of the complainant regarding the cheque at Ex.P.2 should be considered.
21. As discussed herein above the case of the complainant is that the accused borrowed a total amount of Rs.11,88,00,000/- from her on different occasions as per the list shown in the complaint and finally the accused executed the receipt and acknowledgement as per Ex.P.1 in favour of the complainant on 26.09.2011 and hence, the crucial document relied on by the complainant is the receipt and acknowledgment at Ex.P.1 regarding the loan alleged to have been availed by the accused from the complainant.
22. At this stage itself it is relevant to note that the accused has utterly denied borrowing of any sum from the complainant and execution of receipt and acknowledgement at Ex.P.1 and also issuance of cheque at Ex.P.2 regarding repayment of the alleged loan. As discussed herein above, in the reply notice at Ex.P.10 itself the accused has denied the loan transaction and also denied issuance of cheque at Ex.P.2. Hence, it is relevant to refer to the 24 Spl.C. No.185/2018 receipt and acknowledgement at Ex.P.1 and cheque at Ex.P.2 in the background of the case put forth by the complainant.
23. As submitted by the learned counsel for the accused, in the receipt and acknowledgement at Ex.P.1 it is mentioned that "..... and I undertake to pay the said sum of Rs.11,88,00,000/- to Anjana together with current and future interest at 12% per annum within a period of One year from the date of execution of this receipt and acknowledgement, without any default". The said averment shows that as per the document at Ex.P.1, the entire amount was agreed to be repaid within one year with interest at 12% p.a. If the date of receipt and acknowledgement at Ex.P.1 is taken into consideration, the period of one year would expire on 26.09.2012. But, as per the case of the complainant, there was no repayment of the amount by the accused as agreed. But, thereafter repayment of the amount was done through the cheque at Ex.P.2.
24. However, as submitted by the learned counsel for the accused, the cheque at Ex.P.2 is dated 30.04.2015 i.e., the said cheque was issued after about 3 years and 7 months from the date of execution of the receipt and acknowledgement at Ex.P.1. Hence, on the basis of the receipt and acknowledgement at Ex.P.1 the 25 Spl.C. No.185/2018 period for legally enforceable liability/ debt would expire on 26.09.2014 itself. Therefore, if the receipt and acknowledgment at Ex.P.1 and the cheque at Ex.P.2 are considered together, it is clear that there was absolutely no legally enforceable debt or liability against the accused as on the date of issuance of the cheque at Ex.P.2, even if the loan is accepted as proved on the basis of the document at Ex.P.1.
25. At this stage itself, it is relevant to refer to the provision of Sec.3 of the Evidence Act regarding the definition of the word 'proved', which reads thus:
"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstance of the particular case, to act upon the supposition that it exists.
Now in the case on hand, if the documents at Ex.P.1 and P2 are considered together, it is clear that no prudent man would receive cheque at Ex.P.2 towards repayment of the loan mentioned in the document at Ex.P.1 after three years from the date of document at Ex.P.1 as, as on the date of cheque at Ex.P.2, there was no legally enforceable debt or liability against the accused. Therefore, issuance of the cheque at Ex.P.2 by the accused appears to be most 26 Spl.C. No.185/2018 improbable that a prudent man under the circumstances of case on hand, does not act upon the supposition that any debt or liability existed as on the date of the cheque at Ex.P.2.
26. Moreover, as pointed out by the learned counsel for the accused, it is relevant to refer to the relevant portion of the evidence of the complainant as PW1 in the cross-examination, which reads thus:
"ಆರಕಮಪಗ ನನಕ ಪಪತಮ ಸಲ ಹಣ ಕಕಟಟಗ ಅವರಕ ನನಗ ಡ.ಪ.ನಕಮಟಕ ಮತಕತ ಹಣ ಸಅದ ರಶಮದಗಳನಕ ನ ನನಗ ನಮಡಕತತದದರಕ. ಅವಗಳ ಮಮಲ ನನಕ ರವ ದನಅಕ, ತಅಗಳಕ ಮತಕತ ವರರಕಕ ಹಣ ಕಕಟಟ ಕಕರತಕ ನಮಕದಸಲಗಕತತತಕತ ಎಅದರ ಸರ. ಈ ದಖಲಗಳನಕ ನ ನನಕ ನನನ ನನಯವದಗಳಗ ತಕಮರಸಲಲ. ಈ ದಖಲಗಳಕ ನನನ ಹತತರ ಇದದದದರ ತಕಮರಸಕತತದ. ನನಕ ಆರಕಮಪಗ 9 ಕಅತಕಗಳಲ ಹಣ ನಮಡದಕ ದ , ಸಕ ಪನನ ಹಮಳಕವದಮನಅದರ ಆರಕಮಪಗ 11 ಕಅತಕಗಳಲ ಹಣ ನಮಡರಕತತಮನ. ರವ ರವ ದನಅಕಗಳಅದಕ ಎಷಟರಟ ಕ ಹಣ ನಮಡರಕತತಮನ ಎಅಬ ಕಕರತಕ ನನನ ಹತತರ ಇದದ ದಖಲಗಳಕ ಎಅದರ ಡ.ಪ.ನಕಮಟಕ ಮತಕತ ಹಣ ಸಅದ ರಶಮದಗಳಕ."
If at all the accused executed any demand promissory note and consideration receipt at the time of receiving every amount towards the loan from the complainant, such On Demand Promissory Notes and Consideration Receipts would have been the crucial documents to prove the case of the complainant regarding the alleged loan. But, it is very pertinent to note that the complainant has not produced any such document in the case on hand.
27 Spl.C. No.185/2018
27. Further, regarding the receipt and acknowledgement at Ex.P.1 the evidence of complainant as PW1 in cross-examination reads thus:
"ಅದರ ಮಮಲ ಸಟನಅಪವಅಡರ ಇವರಕ ಸಟನಅಪನಕನ ಖರಮದಸದವರ ಹಸರಕ, ದನಅಕ ಸಟನಅಪನ ಮಲನ ಮತಕತ ವಅಡರ ಇವರ ಹಸರಕ ಇರಕತತದ. ನ.ಪ.1 ದಖಲಯನಕ ನ ನನಕ ಬರಳಚಕ ಚ ಮಡಸಕಕಅಡರಕವದಲಲ. ನ.ಪ.1 ನಕ ನ ತರರಸಕವ ಸಲಕವಗ ನನಕ ಅದಕಕ ಇರಕವ ಸಕದರರನಕ ನ ಕರದಕಕಕಅಡಕ ಹಕಮಗರಕವದಲಲ. ಸಕದರರ ದ ಪಪಕ ಸಸಳದಲ ಇದ ನಮಮ ಕಡಯವರದ ಶವಯ ದ ಅವರ ವಳಸ ಗಕತತಲಲ. ಇನಕನಬಬ ನ ಇದಕ ಸಕದರರದ ನಗರರ ಆರಕಮಪ ಕಡಯವರದಕ ದ ಅವರ ವಳಸ ಹಮಳಲಕ ಬರಕವದಲಲ. ಮಲನಮ ಸಕದರ ಶವಯ ನ ಈತ ತನನ ಸಹ ಮಡ ವಳಸ ಬರದಕ ತರಖಕ ಹಕರಕತತನ."
It is also the evidence of complainant as PW1 regarding the cheque at Ex.P.2 that:
"¢B 26.9.2011 gÀAzÀÄ DgÉÆæUÉ ¤.¦.3 ZÉPÀÌ£ÀÄß vÀgÀ§ÉÃPÀÄ CAvÀ £Á£ÉãÀÆ ºÉýgÀ°®è. D£ÀAvÀgÀ ¸ÀºÀ ZÉPï vÀgÀ®Ä £Á£ÀÄ ºÉý®è. ¤.¦.3 ZÉPï£À°èAiÀÄ PÉÊ §gÀªÀtôUÉ £À£ÀßzÀ®è CzÀÄ AiÀiÁgÀ §gÀªÀtôUÉ CAvÀ £À£ÀUÉ UÉÆwÛ®è. ¤.¦.3 ZÉQÌ£À «ZÁgÀ £ÀªÀÄä ¸ÁPÀÄ vÀAzÉ CuÁÚgÁªïªÀgÀjUÉ £Á£ÀÄ w½¹®è."
It is true that the said cheque is produced at Ex.P.2, but due to typographical error, in the above referred portion in the evidence of PW2 the said cheque is referred to as Ex.P3. If the above referred evidence of PW1 is considered, it is clear that she did not receive the cheque at Ex.P.2 on 26.09.2011 i.e., on the date of alleged execution of the receipt and acknowledgment at Ex.P.1.
28. Further, in the cross-examination by the learned counsel for the accused the complainant as PW1 has deposed that 28 Spl.C. No.185/2018 from 2011 to till the date of her evidence she did not file any suit against the accused for recovery of the loan amount. Moreover, she does not remember as to when the accused agreed to repay the loan amount allegedly given by her on 26.09.2011. The relevant portion in the cross-examination of PW1 reads thus:
"¢B26.9.2011 jAzÀ ¢B15.5.2015 gÀ £ÉÆÃnøï PÉÆqÀĪÀ ªÀÄzÀsåzÀ CªÀ¢üAiÀÄ°è £Á£ÉãÀÄ DgÉÆæUÉ PÉÆmÁåAvÀgÀ gÀÆ¥Á¬Ä ¤£ÀUÉ ¸Á® PÉÆnÖzÉÝÃ£É ºÀt ªÁ¥À¸ï PÉÆqÀÄ CAvÀ °TvÀ £ÉÆÃnøï PÉÆnÖ®è."
Therefore, if the circumstances forthcoming in the evidence of complainant as PW1 are taken into consideration, the facts stated in the evidence of complainant appear to be most improbable that she would wait for recovery of the loan amount mentioned in the receipt and acknowledgement at Ex.P.1 till the date mentioned in the cheque at Ex.P.2, when the date mentioned in the cheque is beyond the period of limitation for legally enforcing the debt or liability of the accused regarding the alleged loan mentioned in the document at Ex.P.1.
29. Further, as pointed out by the learned counsel for the accused, the contention of the accused is that the complainant had no financial capacity to lend any amount, much less the amount to the extent of Rs.11,88,00,000/-. The said contention was taken by 29 Spl.C. No.185/2018 the accused by way of defence at the initial stage itself while issuing his reply notice at Ex.P.10, the portion of which reads thus:
"4. Your client, even to this day, has no avocation whatsoever in life. She is also not assessed to Income-tax or Wealth-tax. She has not inherited any properties. She has been staying in a rented house. She is paying the rent to the house which is in her occupation and making a living at the benevolence and charity of persons who are known to her."
As submitted by the learned counsel for the accused, it is pertinent to note that the complainant as PW1 in her evidence in cross- examination has deposed that:
"2011 ಮತಕತ ಅದರ ಹಅದ ನನಕ ನನನ ತಅದಯ ವನಪಾರಕಕ ಸಹಯ ಮಡಕತತದನಕ. ನನನದಕ ರಯಲ ಎಸಟಮಟ ವನವಹರ ಇತಕತ. 2011 ಮತಕತ ಅದರ ಕ ಆಫ ಅಕಅಟಕಟ್ಸ್ಗಳನಕ ಹಅದ ನನನ ವನವಹರದ ಕಕರತಕ ಬಕಕ ನ ಇಟಟಲಲ. ಮಮಲಕಅಡ ಅವಧಿಗ ನನಕ ಆದಯ ತರಗ ಪಾವತಸಕತತದ. ಆದಯ ತರಗಯ ಪಪಕಾರ ನನಗ ಬರಕವ ಆದಯ, ಖಚಕರ ಮತಕತ ಆದಯಕಕ ಕಕಡಬಮಕಾದ ತರಗ ಎಅದರ ಸರ. 2011 ಮತಕತ ಅದರ ಹಅದನ ಅವಧಿಗ ನನಕ ಆದಯ ತರಗ ರಟರಕರ ಸಲಸರಕವದಲಲ. ಅದಮ ಕ ಆಫ ಅಕಅಟಕ ನಕ ಪಪಕಾರ ಬಕಕ ನ ಸಹ ಇಟಟಲಲ. ಆದರ 2012 ರ ನಅತರ ಆದಯ ತರಗ ಪಾವತಸಕತತ ಬಅದದ್ದೇನ."
It is also relevant to note that the complainant as PW1 in her evidence in cross-examination has deposed:
"2011 ಮತಕತ ಅದರ ಹಅದನ ಅವಧಿಗ ನನನದಕ ಬನಅಕ ಖಾತ ಇತಕತ. ರವ ಬನಅಕನಲ ನನನ ಜಾತ ಇತಕತ ಎಅಬಕದಕ ನನಪಲಲ. ಮಮಲಕಅಡ ಅವಧಿಗ ನನನ ಉಳತಯವನಕ ನ ಬನಅಕ ಖಾತಗ ಜಮ ಮಡಕತತದನಕ. ಸದರ ಅವಧಿಯಲ ಸಅಬಅದಪಟಟಅತ ನನನ ಬನಅಕ ಖಾತ ನಕಮಡದರ ಆ ಅವಧಿಯಲ ಆದಯ ಎರಕ ಟ ಇತಕತ ಎನಕ ನ ವದಕ ಗಕತತಗಕತತದ. 2011 ಮತಕತ ಅದರ ಹಅದ ಈ ಕಮಸಗ ಟ ಹಣ ನನನ ಹತತರ ಇರಲಲಲ. ಆ ಅವಧಿಗ ಸಸಅತ ನನನ ಸಅಬಅದಪಟಟಅತ ಹಣ ಕಕಡಕವರಕ ಹತತರ 11 ಕಕಮಟ ರಕ.ಗಳಕ ಇರಲಲಲ. 11 ಕಕಮಟ 88 ಲಕ ರಕ.ಗಳಕ ನ ಒಅದ ಸರ 30 Spl.C. No.185/2018 ಕಕಟಟರಕವಅತಹ ಹಣ ಆಗರಕವದಲಲ. ದ.26.09.2011 ರಅದಕ 11 ಕಕಮಟ 88 ಲಕ ನ ಆರಕಮಪಗ ಕಕಟಟಲಲ. ಮದಲನಯದಗ ದ.5.1.2011 ರಅದಕ 1 ಕಕಮಟ ರಕ.ಗಳನಕ ಚಿಲಲರ ಹಣವನಕ ನ ಕಕಟಟರಕತತಮನ. ಉಳದ ಹಣವನಕ ನ ಎಷಟರಟ ಕ ಹಣವನನ ಎಷಟರಟ ಕ ಕಅತಕಗಳಲ ರವ ರವ ದನಅಕಗಳಅದಕ ನಮಡರಕವ ಕಕರತಕ ನನಪಲಲ.
ರವಗ ಎಷಟರಟ ಕ ಹಣವನಕ
ನ ಕಕಟಟರಕವ ಕಕರತಕ ನನನ ನನಯವದಗಳಲ ಮಹತ
ನಮಡರಕತತಮನ. ಈ ಮಹತಯನಕ
ನ ದಖಲಯನನಧರಸ ನಮಡರಕತತಮನ. ಆ
ದಖಲಯನಕ
ನ ನನನ ನನಯವದಗಳಗ ತಕರಸರಕತತಮನ. ಈ ಪಪಕರಣಕಕ
ಪಪಮಕಖವದ ದಖಲ, ಅದನಕ
ನ ಹಜರಕ ಪಡಸಕತತಮನ."
Moreover, the evidence of PW1 in cross-examination reads thus:
"ನನಕ ಪಪತಯಅದಕ ಸಲ ಕಕಮಟ-ಕಕಮಟ ಹಣವನಕ ನ ನಗದಕ ರಕಪದಲಯಮ ಕಕಟಟರಕತತಮನ. ನನಗ ತಳದ ಹಗ ಅಶಕಮಕ ಕಕಮರ ಇವರಕ ಬಡಡ ವನವಹರ ಮಡಕತತರ. ಸಕದರರಕ ಮಕಅದಕವರದಕ ಹಮಳಕವದಮನಅದರ ಫಪನರಕ ನ ಸಹ ಮಡಕತತರ. ಆರಕಮಪಗ ಕಕಡಲಕ ನನನ ಹತತರ ನಗದಗ ಮತಕತ ವನವಹರವನಕ ಲ ಬನಅಕನಲಕ ಸಹ ಹಣ ಇರಲಲಲ. ಆರಕಮಪಗ ಕಕಮಟ-ಕಕಮಟ ಹಣವನಕ ನ ನಮಡದ ಹನನಲಯಲ ಭದಪತಗಾಗ ಅವರಅದ ಸಸರಸಸ ಅಥವ ಚರಸಸ ಇವಗಳ ಕಕರತಕ ನ ಮಡಕಕಅಡರಕವದಲಲ."
ದಖಲಯನಕ Further, the complainant as PW1 has deposed that she started to pay income tax from 2013-14. It is true that copies of three income tax returns are produced by the complainant and the same are marked at Exs.P.11 to P.13 respectively. The documents at Exs.P.11 to P.13 are in respect to the Assessment Years 2013-14, 2014-15 and 2015-16 respectively. Hence, those income tax returns of the complainant are regarding the Financial Years 2012-13, 2013-14 and 2014-15 respectively. Therefore, the Income Tax returns at 31 Spl.C. No.185/2018 Exs.P.11 to P.13 are not in respect to the Financial year 2010-11 or 2011-12.
30. Moreover, as per the Income Tax returns at Exs.P.11 to P.13, as pointed out by the learned counsel for the accused, the gross incomes of the complainant were Rs.3,05,850/-, Rs.3,30,500/- and Rs.5,01,500/- for the Financial Years 2012-13, 2013-14 and 2014-15 respectively and she paid total income-tax of Rs.699/- Rs.1121/- and 9733/- respectively. However, the submission of the learned counsel for the complainant is that the point as to whether the complainant is Income Tax payee or not is not the relevant material to be considered in the case on hand.
31. In support of this submission, the counsel for the complainant has drawn the attention of this Court to the order dated 29.08.2018 of Hon'ble High Court of Karnataka at Bengaluru in W.P.No.29144/2018 (Dr. M. Krishna Shetty Vs. Sri H.R. Nagabhushan). The said Writ petition was filed by the concerned petitioner to quash the proceedings initiated against him under Sec.138 of N.I. Act. The Hon'ble High Court of Karnataka in the said decision has been pleased to hold that:
"No doubt, the sources from which the complainant paid the loan amount may be required to be established during the 32 Spl.C. No.185/2018 trial, but the prosecution under Section 138 of N.I. Act cannot be stalled for non-compliance of Sec.269 SS of the Income Tax Act. Any cash transaction in violation of Sec.269 SS of Income Tax Act may give rise to an independent criminal offences, but on account of violation of the said provision, the prosecution of the petitioner for the alleged dishonour of cheque under Section 138 of Act does not become bad in law."
It is true that as per the said decision, any violation by the complainant of the provision of Income Tax Act in the case on hand does not affect the cheque at Ex.P.2, as the present case is filed by the complainant against the accused for the offence punishable under Sec. 138 of N.I. Act.
32. However, as pointed out by the learned counsel for the accused, the above referred Writ petition was filed to quash the proceedings of the case for the offence punishable under Sec.138 of N.I. Act at the initial stage. On the other hand, the present case is at the stage of judgment after trial on its merit. Moreover, in the above referred decision of the Hon'ble High Court of Karnataka it is mentioned that the sources from which the complainant paid the loan amount may be required to be established during the trial. Now the trial of the present case is already concluded and hence, it is the burden on the complainant to prove the source of her income to pay the alleged loan amount to the accused. Therefore, the 33 Spl.C. No.185/2018 Income Tax returns at Exs.P.11 to 13 produced by the complainant play crucial role in order to establish the income of the complainant as on the date of the loan allegedly given by her to the accused.
33. Moreover, the learned counsel for the accused has relied on the decision of Hon'ble Supreme Court of India reported in (2015) 1 SCC 99 (K. Subramani Vs. K. Damodara Naidu) in which in the case for the offence punishable under Sec.138 of N.I. Act the Hon'ble Apex Court referring to Sec.138, 118 and 139 of the Act has been pleased to hold that:
"In the case of dishonour of cheque, legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant-accused. Hence, the presumption in favour of holder of cheque, held, stood rebutted and acquittal restored."
As per the facts of the said case, the complainant and the accused were working as lecturers in a Government college at the relevant time and alleged loan of Rs.14 lakhs is claimed to have been paid by cash and it is disputed. Both the parties are governed by Government Servants' Conduct Rules which prescribes the mode of lending and borrowing. There is nothing on record to show the prescribed mode was followed. The source claimed by the 34 Spl.C. No.185/2018 complainant is savings from his salary and an amount of Rs.5 lakhs derived by him from sale of Site No.45 belonging to him. Neither in the complaint nor in the chief-examination of the complainant, is there any averment with regard to the sale price of Site No.45. The sale deed concerned was also not produced. Though the complainant was an income tax assesse, he has admitted in his evidence that he had not shown the sale of site No.45 in his income tax returns. On a consideration of entire oral and documentary evidence, the Trial Court came to the conclusion that the complainant had no source of income to lend a sum of Rs.14 lakhs to the accused and he failed to prove that there is legally recoverable debt payable by the accused to him. The facts of the case of the above said decision and the offence alleged in the said case are aptly applicable to the case on hand. From the discussions made herein above, it is clear in the case on hand the complainant should prove the source of her income, but she has failed to prove the same. If the documents at Exs.P.11 to P.13 are taken into consideration, it is clear that the complainant had no income in crores in the years 2010-11 and 2011-12 and also earlier or subsequent thereto.
35 Spl.C. No.185/2018
34. Further, the complainant as PW1 in her evidence in cross-examination has deposed that:
"ಟಮಚರರ ಕಾಲಮರ ಎದಕರಕ, ರಜಾಜ ನಗರ 2 ನಮ ಬಲಕ, ಬಅಗಳಕರಕ. ಎಲಲ ಕಅತಕಗಳನಕ ನ ನನಕ ಸದರ ಅಶಕಮಕ ಕಕಮರ ಇವರಅದಲಮ ಸಲ ಪಡದರಕತತಮನ. ಸಲ ಪಡದಕ ಕಕಅಡ ಕಕರತಕ ಅಶಕಮಕ ಕಕಮರ ಈತನಗ ದಖಲ ಬರದಕ ಕಕಟಟರಕತತಮನ. ನಮಮಬಬರ ನಡಕವ ಎಅ.ಓ.ಯಕ ಆಗದ. ಇದರ ದನಅಕ ಗಕತತಲಲ. ನಮಮಬಬರ ನಡಕವ ಬಡಡ ಕಕರತಕ ಮತಕಕತ ಆಗಲಲ. ಬನಅಕನವರಕ ಕಕಡಕವ ಹಣಕಕ ಎರಕ ಟ ಬಡಡ ಹಕಕತತರ ಅಷಟಮ ಬಡಡಗ ಸಅಬಅದಪಟಟಅತ ಎಅ.ಓ.ಯಕ ದಖಲ ಉಲ್ಲೇಖಿಸಲಗದ. ನನಕ ಅಶಕಮಕ ಕಕಮರ ಈತನಗ ಎರಕ ಟ ಬಡಡ ಕಕಡಕತತದ ಅಷಟಮ ಬಡಡ ದರವನಕ ನ ನಗದ ಪಡಸ ಆರಕಮಪಗ ಹಣ ನಮಡರಕತತಮನ. ನನನ ಹತತರ ಅಸಲಕ ಕ ಇದ. ಅದರ ಅಸಲಕ ಅಶಕಮಕ ಎಅ.ಓ.ಯಕ ದಖಲ ಇಲಲ. ಆದರ ಅದರ ಜೆರಕ ಕಕಮರ ಈತನ ಬಳ ಇದ. ನನಕ ನನನ ನಕಮಟಮಸನ ಪಾನರ ನಅ. 4 ರಲ ವರರಕಕ ಶಮಕಡ 12 ರಅತ ನನಕ ಕಕಟಟ ಸಲಕಕ ಬಡಡ ಕಮಳದಷಟಮ ಅಶಕಮಕ ಕಕಮರ ಇವರಕ ದ ನನನಅದ ಬಡಡ ಕಮಳರಕತತರ. ಎಅ.ಓ.ಯಕ ದಖಲ ಸಟನಅಪ ಪಮಪರ ಮಮಲ ಆಗದಕ ಸಟನಅಪನ ಮಲನ ಗಕತತಲಲ. ಈ ದಖಲಗ ಸಕದರರಗ ಸಹ ಮಡದ ವನಕತಗಳ ಹಸರಕ ನನಪಲಲ."
This evidence clearly goes to show that as per the evidence of complainant as PW1, she gave the alleged loan to the accused by borrowing the amounts from one Ashok Kumar and his wife Radha Ashok Kumar. The said Ashok Kumar was the Chairman of Aadi Sauhardha Credit Co-operative Bank.
35. As pointed out herein above, the address of the said Ashok Kumar was told by the complainant as PW1 in her evidence. But, it is very interesting to note that in the further cross- examination, the complainant as PW1 has admitted that the 36 Spl.C. No.185/2018 address mentioned in the covers at Exs.D1 and D2 are the address of the said Radha Ashok Kumar, w/o Ashok Kumar from whom the complainant was alleged to have taken loan. The said covers are got marked by the accused in the evidence in cross- examination of PW1 at Exs.D.1 and D2. Moreover, four postal covers are also got marked by the accused in the evidence in cross- examination of PW1 as per Exs.D.3 to D6.
36. As admitted by the complainant in her evidence in cross-examination, the addresses mentioned in the postal covers at Ex.D.1 to D.6 are the addresses of the said Ashok Kumar and his wife Radha Ashok Kumar. But, as pointed out by the learned counsel for the accused, as per the endorsements of the Postal Authority in the postal covers at Exs.D1 to D6, there were no such persons in the said address and those covers were returned having not served to the addressees. Therefore, the documents at Exs.D1 to D.6 falsify the case of the complainant that she availed loan from Ashok Kumar and his wife Radha Ashok Kumar, who are alleged to have been residing in No.247, 17th Main Road, Opp. MES Teachers College, Rajajinagar 2nd Block, Bengaluru, when there are no such persons residing in the said address. 37 Spl.C. No.185/2018
37. Further, in the evidence in cross-examination, the complainant as PW1 has deposed that:
"ನನಕ ಪಪತಯಅದಕ ಸಲ ಕಕಮಟ-ಕಕಮಟ ಹಣವನಕ ನ ನಗದಕ ರಕಪದಲಯಮ ಕಕಟಟರಕತತಮನ. ನನಗ ತಳದ ಹಗ ಅಶಕಮಕ ಕಕಮರ ಇವರಕ ಬಡಡ ವನವಹರ ಮಡಕತತರ. ಸಕದರರಕ ಮಕಅದಕವರದಕ ಹಮಳಕವದಮನಅದರ ಫಪನರಕ ನ ಸಹ ಮಡಕತತರ. ಆರಕಮಪಗ ಕಕಡಲಕ ನನನ ಹತತರ ನಗದಗ ಮತಕತ ವನವಹರವನಕ ಲ ಬನಅಕನಲಕ ಸಹ ಹಣ ಇರಲಲಲ. ಆರಕಮಪಗ ಕಕಮಟ-ಕಕಮಟ ಹಣವನಕ ನ ನಮಡದ ಹನನಲಯಲ ಭದಪತಗಾಗ ಅವರಅದ ಸಸರಸಸ ಅಥವ ಚರಸಸ ಇವಗಳ ಕಕರತಕ ನ ಮಡಕಕಅಡರಕವದಲಲ."
ದಖಲಯನಕ If this evidence of the complainant is taken into consideration, it is not believable that she obtained loan in crores from the said Ashok Kumar without any security of moveable or immovable properties agreeing to repay the said loan with interest. Hence, the case of the complainant that she borrowed loan and that out of such loan amounts she lent money to the accused in crores appears to be most improbable.
38. Moreover, it is very much interesting note that one Ashok Kumar has been examined as PW2 in support of the case of the complainant, after the death of the complainant. The said Ashok Kumar is the divorced husband of the complainant. Therefore, the person by name Ashok Kumar from whom the complainant was alleged to have taken loan, is not Ashok Kumar, 38 Spl.C. No.185/2018 who has been examined as PW2. The PW2 has filed his affidavit as his evidence in chief-examination deposing that he is permanent resident of Bengaluru City and engaged in real-estate business and also in investment, and as part of investment he gave a sum of Rs.8,78,49,729/- to the complainant on various dates between 02.01.2011 to 21.06.2011. The said amount was given to the complainant for the purpose of investment and also to return the same with accrued profit / interest. There is Memorandum of Understanding ('MOU' for short) entered into between himself and the complainant on 20.06.2011. The amounts were paid through bank account by way of cash to the complainant. The alleged MOU is marked at Ex.P.19. As per the MOU at Ex.P.19, it was executed between Ashok Kumar (PW2), Smt. Anjana (Radha) and Sri Deepak B.S. being First Party and Anjana A. being Second Party. The said Anjana A. D/o Anand Kumar is the complainant herein. But it is very interesting to note that it is not at all the case of the complainant either in her complaint or in her evidence as PW1 that there was any MOU executed between herself and her divorced husband V. Ashok Kumar (PW2).
39 Spl.C. No.185/2018
39. On the other hand, as pointed out by the learned counsel for the accused, the complainant as PW1 in her evidence has deposed that she divorced her husband in the year 2007 and hence, she did not intend to tell the name of her husband and after divorce she was residing alone and her son Sumant was given to the custody of her divorced husband. Hence, when the complainant divorced her husband PW2-Ashok Kumar, in the year 2007 and thereafter when the complainant did not want to even tell the name of her divorced husband, the question of her entered into any MOU with her divorced husband in the year 2011 as per Ex.P.19 appears to be most improbable. Moreover, there is absolutely no mention either in the complaint or in the evidence of complainant that the complainant borrowed any amount from her divorced husband in the year 2011 or at any time.
40. It is true that the certified copies of two statements of accounts in respect of Union Bank of India, Rajajinagara Branch and Corporation Bank, Mahalakshmi Layout Branch are produced by PW2 in his evidence and same are marked as Exs.P.20 and P.21 respectively. The relevant entries dated 10.12.2010, 11.12.2010 and 15.12.2010 regarding the credit of amount of Rs.8,50,000/- 40 Spl.C. No.185/2018 and debits of the amounts of Rs.17,50,000/- and Rs.8,00,000/- in Ex.P.20 are marked at Exs.P.20(a), P.20(b) and P.20(c) respectively. In the document at Ex.P.21 the entries dated 04.03.2011, 27.03.2011 and 05.03.2011 regarding the amounts of Rs.1,75,000/-, Rs.10,00,000/- and Rs.7,00,000/- respectively debited to the account of Corporation Bank, are marked at Exs.P21(a), P.21(b) and P.21(c) respectively. But there is absolutely no evidence to prove that the entries of the amounts shown in Exs.P.20(a) to P.20(c) and Exs.P.21(a) to P.21(c) in the account statements at Exs.P.20 and P.21 are the amounts borrowed by the complainant from PW2 at the relevant time. Those entries do not show that the concerned amounts were transferred to the complainant. Moreover, the account statement at Ex.P.20 is standing in the name of Cub Classic Plus and the account statement at Ex.P.21 is in respect of the account standing in the name of M/s. Aadhi Sauhardha Multipurpose Co-op. Society. There is absolutely no material forthcoming from PW2 to prove as to how the said Cub Classic Plus and M/s. Aadhi Sauhardha Multipurpose Co-operative Society are concerned with him. 41 Spl.C. No.185/2018
41. Moreover, the evidence of PW2 regarding the fact that complainant borrowed any loan from him is quite contrary to the case of the complainant and it is not in accordance with the contention of the complainant in her evidence. Moreover, in the cross-examination it is deposed by PW2 that he had Savings Bank Account and Current Account in Corporation Bank, Mahalakshmi Layout Branch and Vijaya Bank, Rajajinagara Branch, but he did not draw any amount of Rs.8,78,49,729/- shown in his affidavit-in- chief-examination, from those accounts. Therefore, the evidence of PW2 and the documents at Exs.P.19 to P.21 are in no way helpful to the complainant to prove that she had any amount with her as on the date of lending the alleged amounts to the accused as mentioned in the receipt and acknowledgment at Ex.P.1.
42. Moreover, as argued by the learned counsel for the accused, it is pertinent to note the relevant portion in the evidence in cross-examination of PW2 reads thus:
"AiÀiÁªÀÅzÁzÀgÀÆ ¸ÀºÀPÁj ¸ÀAWÀªÀ£ÀÄß ¥ÁægÀA¨Às ªÀiÁqÀ¨ÉÃPÁzÀgÉ CzÀÄ PÀ£ÁðlPÀ ¸ÀºÀPÁj ¸ÀAWÀUÀ¼À C¢ü¤AiÀĪÀÄzÀ°è £ÉÆAzÀtôAiÀiÁUÀ¨ÉÃPÁUÀÄvÀÛzÉ. CzÉà ¥ÀæPÁgÀ PÀ£ÁðlPÀ gÁdå ¸ËºÁzÀð ¸ÀAAiÀÄÄPÀÛ ¸ÀºÀPÁj ¤AiÀÄ«ÄvÀzÀr £ÉÆAzÀtôAiÀiÁUÀ¨ÉÃPÁUÀÄvÀÛzÉ. FUÀ vÉÆÃj¹zÀ zÁR¯É D¢ ¸ËºÁzÀð PÉÆÃD¥ÀgÉÃnªï ¨ÁåAPï ¨ÉAUÀ¼ÀÆgÀÄ £ÉÆAzÀtôAiÀiÁV®è CAvÀ ¤ÃrzÀ zÁR¯É JAzÀgÉ ¤d. zÁR¯ÉAiÀÄ£ÀÄß ¤.r.15 ªÀÄvÀÄÛ 16 CAvÀ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¸ÁQë ªÀÄÄAzÀĪÀjzÀÄ ºÉüÀĪÀÅzÉãÉAzÀgÉ ¸ÀzÀj ¸ÀAWÀ gÉf¸ÁÖçgï D¥sï PÉÆà 42 Spl.C. No.185/2018 D¥ÀgÉÃnªï ¸ÉƸÉÊnAiÀÄ°è £ÉÆAzÁVzÉ CAvÀ ¸ÁQë ºÉýzÁÝgÉ. ¸ÁQë ¤.¦.15£ÀÄß £ÉÆÃr ¤§AzÀsPÀgÀÄ ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼À ¤§AzÀsPÀgÀ PÀZÉÃj¬ÄAzÀ ¤ÃrzÀ ªÀiÁ»wAiÀiÁVzÉ CAvÀ ºÉüÀÄvÁÛgÉ."
It is true that the PW2 has further deposed that the said Co- Operative Society was registered under Registrar of Co-Operative societies. But the PW2 has not chosen to produce any document regarding registration of Aadhi Sauhardha Credit Co-op. Bank under Co-Operative Societies Act. It is not in dispute that the accused was the then MLA and he was the President of Karnataka Border Areas Development Authority, Bengaluru. The letter at Ex.D.15 was issued by the Joint Registrar, Legal Cell of Co- Operative Societies to the accused, in which it is mentioned that:
"ಮಮಲಕಅಡ ವರಯಕಕ ಸಅಬಅಧಿಸದಅತ ಮಹತ ಕಕಮರ ಸಲಸರಕವ ಉಲ್ಲೇಖಿತ ಪತ ತವನಕ ನ ಪರಶಮಲಸಲಗದ. ಕಮಅದಪ ಕಛಮರಯ ಕಾನಕನಕ ಕಕಮಶ ವಭಾಗದಲ ನವರಹಸಕವ ನಕಮಅದಣ ವಹಯನಕ ನ ಪರಶಮಲಸಲಗ ಆದ ಸೌಹದರ ಕಕಮ-ಆಪ ಬನಅಕ, ಬಅಗಳಕರಕ, ನಕಅದಣರಗರಕವ ಬಗಟ್ಸ್ಗ ಮಹತ ಲಭನವರಕವದಲಲ. ಇಲಖೆಯ ಆಧಿಮನ ಕಛಮರಗಳಲ ನಕಮಅದಣ ಆಗರಕವ ಬಗಟ್ಸ್ಗ ಸಅಬಅಧಿತ ಕಚಮರಗಳಲ ಮಹತ ಪಡಯಬಹಕದಕ."
Further, the letter at Ex.D.16 was issued by Deputy Chief Manager (Administration) of Karnataka State Souharda Federal Co-Op. Society to the Personal Secretary of the President, Karnataka Border Area Development Authority, Bengaluru, wherein the relevant portion reads thus:
43 Spl.C. No.185/2018
"ಉಲ್ಲೇಖದ ಪತ ತದಲ ತವ ತಳಸರಕವ ಸಹಕಾರಗ ಸಅಬಅಧಿಸದಅತ ಇಅದನ ದನಅಕಕಕ ಸಅಯಕಕತ ಸಹಕಾರಯಕ ದಖಲಗಳನಕ ನ ಪರಮಕಸಲಗ ಆದ ಸೌಹದರ ಮಲಟಪಪರರ ಕಕಮ-ಆಪರಮಟವ ಲಮಟೆಡ, ನಅ.97, ಮಮರ, ಕಕಮಕಕಮನಟ ಗಾಡರರ, ನಗರಬವ, ಬಅಗಳಕರಕ-72 ಹಸರಕ ಮತಕತ ವಳಸದಲ ಸಹಕಾರಯಕ ಸಹಕಾರ ಇಲಖೆಯ ಸಅಬಅಧಿಸದ ನಬಅಧಕರಅದ ನಕಮಅದಣಗಕಅಡರಕವ ವವರವ ಸಅಯುಕಕತ ಸಹಕಾರಯಲ ಲಭನವರಕವದಲಲ ಎಅಬಕದನಕ ನ ಈ ಮಕಲಕ ತಮಮ ಗಮನಕಕ ತರಬಯಸಕತತಮನ."
Hence, the documents at Exs.D.15 and D.16 issued by the concerned Authorities falsify the evidence of PW2 that there exists Aadhi Sauhardha Multipurpose Co-op. Society Ltd., and that the complainant availed any loan from any such Co-op. Society.
43. Further, as discussed herein above, the presumption under Sec.138 of N.I. Act arises in favour of the complainant only if the accused admits issuance of the cheque at Ex.P.2. As stated herein above, in the evidence in cross-examination of PW1 and also in the initial stage while issuing reply notice at Ex.P.10, it is the definite case of the accused that he did not issue any cheque at Ex.P.2 regarding discharge of any debt or liability to the complainant. Moreover, the accused has clearly stated that he gave complaint to the police against the complainant regarding the alleged theft of the cheque at Ex.P.2 and after completion of 44 Spl.C. No.185/2018 investigation the concerned police filed charge sheet against the accused.
44. In the evidence in cross-examination the complainant as PW1 has deposed that:
"27. ನನಕ ಮತಕತ ಅಶಕಮಕ ಕಕಮರ ಇಬಬರಕ ಸಮರಕಕಅಡಕ ವಜರ ಬನಅಕ, ಕನರ ಬನಅಕ, ಪಅಜಾಬ ನನಪನಲ ಬನಅಕ, ಸಕಅದರಅ ಮಮಟರರ ಮತಕತ ಕಾವಮರ ಗಾಪಮಮಣ ಬನಅಕ ಇವರಗ ಹಸರನಕ ನ ಬಮರ ಬಮರ ಹಮಳ ಮಮಸದಅದ ಹಣ ಪಡದ ಹನನಲಯಲ ನನನ ಮತಕತ ಅಶಕಮಕ ಕಕಮರ ಇಬಬರ ವರಕದದ ಬಅಗಳಕರನ ಅನಮಕ ಪಮ.ಠಾಣೆಗಳಲ ಕ ಪಮನಲ ಮಕದದಮಗಳಕ ದಖಲಗರಕತತವ ಎಅದರ ಳ . ಈ ಪಪಕರಣಕಕ ಸಅಬಅಧಪಟಟಅತ ಆರಕಮಪ ವಧಾನಸೌಧ ಪಮ.ಠಾಣೆಯಲ ಸಕಳಕ ಪರರದ ಸಲಸರಕತತನ. ಅದರಲ ಪಮಲಮಸರಕ ಹಕಲಲಟಟ ಪಪಥಮ ವತರಮನ ವರದಯನಕ ನ ವಜಾ ಮಡಬಮಕಅದಕ ಹಮಳ ಮನನ ಕನರಟಕ ಹಪ ಕಕಮಟರನಲ ಸಲಸದ ನನನ ಅಜರ ವಜಾ ಆಗರಕತತದ. ಆ ಪಪಕರಣಕಕ ಸಅಬಅದಪಟಟಅತ ತನಖಾಧಿಕಾರ ನ ಸಲಸರಕತತನ ಎಅಬಕದಕ ಗಕತತಲಲ. ಆದರ ತನನ ತನಖೆ ಮಕಗಸ ಅಅತಮ ವರದಯನಕ ನನಕ anticipatory bail ಪಡದಕಕಕಅಡರಕತತಮನ. ಈಗ ಸಕದರರಕ ದಕಮಷಾರಕಮಪಣ ಪತ ತದ ದದೃಡಮಕದೃತ ನಕಲನಕ ನ ನಕಮಡ ಅದಮ ದಕಮಷಾರಕಮಪಣ ಪತ ತ ಎಅದಕ ಹಮಳರಕವದರಅದ ನ.ಡ.7 ಎಅದಕ ಗಕರಕತಸಲಯಿತಕ."
The document at Ex.D.7 produced by the accused is copy of the charge sheet filed by the concerned police against the complainant for the concerned offence in respect of the cheque at Ex.P.2.
45. It is true that the petition regarding the charge sheet at Ex.D.7 is now pending before Hon'ble High Court of Karnataka and the proceedings of the case are stayed by the Hon'ble High Court of Karnataka. The Counsel for the complainant has produced 45 Spl.C. No.185/2018 copy of the order dated 11.06.2018 of the Hon'ble High Court of Karnataka at Bangalore in Criminal Petition No.2371/2018 wherein as per the order on I.A. No.1 interim stay was granted as sought for. Hence, the charge sheet at Ex.D.7 does not merit for consideration at this stage. However, the defence put forth by the accused and the document at Ex.D.7 clearly show that the accused has utterly denied issuance of the cheque at Ex.P.2 in favour of the complainant. Therefore, any presumption which would arise under Sec.139 of N.I. Act in favour of the complainant does not stand for consideration in the case on hand and also in law. Further, in contra, the circumstances forthcoming in the evidence of PW1 and PW2 in their cross-examination clearly rebut such presumption under Sec.138 of N.I. Act which would arise in favour of the complainant.
46. Moreover, it is the case of the accused in the cross- examination of PW1 that there are so many criminal cases registered against the complainant and others regarding the fraud committed by the complainant. The relevant portion in the evidence of complainant as PW1 reads thus:
"£Á£ÀÄ ªÀÄvÀÄÛ £À£Àß ªÀiÁf UÀAqÀ C±ÉÆÃPï PÀĪÀiÁgï vÀAzÉ «ÃgÀ¥Àà ¸ÉÃj ªÀiÁgÁl ªÀiÁrzÀ ªÀÄ£ÉAiÀÄ£ÀÄß vÉÆÃj¹ PÀĪÀiÁgÀ ¸Áé«Ä J£ÀÄߪÀªÀjUÉ 46 Spl.C. No.185/2018 ¨sÉÆÃUÀåPÉÌ ºÁQ PÉƽîj CAvÀ CªÀgÀ PÀqɬÄAzÀ 4,50,000 gÀÆ¥Á¬Ä ¥ÀqÉzÀÄ ªÀÉÆøÀ ªÀiÁrzÉÝÃªÉ CAvÀ £ÀªÀÄä ªÉÄÃ¯É ZÀAzÁæ ¯ÉÃOmï ¥ÉÇðøÀgÀÄ Qæ«Ä£À¯ï PÉÃ¸ï ºÁQzÁÝgÉ J£ÀÄߪÀÅzÀÄ ¤d. ¸ÁQë ªÀÄÄAzÀĪÀgÉzÀÄ ºÉüÀĪÀÅzÉãÉAzÀgÉ £À£Àß ªÉÄÃ¯É zÉÆõÁgÉÆÃ¥Àt ¥ÀvÀæ ¸À°è¹zÀÄÝ UÉÆvÀÄÛ C±ÉÆÃPï PÀĪÀiÁgï ªÉÄÃ¯É K£ÁVzÉ CAvÀ £À£ÀUÉ UÉÉÆwÛ®è. DgÉÆæ ¥ÀgÀ ªÀQîgÀÄ ¸ÁQëUÉ zÉÆõÁgÉÆÃ¥Àt ¥ÀvÀæzÀ ¸Ànð¥sÉÊqï £ÀPÀ®Ä vÉÆÃj¹zÀÄÝ C±ÉÆÃPï PÀĪÀiÁgï EªÀgÀ£ÀÄß £Á®Ì£Éà DgÉÆæAiÀÄÁV vÉÆÃj¹zÀÝ£ÀÄß ¸ÁQë UÀªÀĤ¹ M¦àzÁÝgÉ zÁR¯ÉAiÀÄ£ÀÄß ¤.r.8 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ."
The relevant portion in the cross-examination of the complainant as PW1 also reads thus:
"DgÉÆæ ¥ÀgÀ ªÀQîgÀÄ ¸ÁQëUÉ zÉÆõÁgÉÆÃ¥Àt ¥ÀvÀæzÀ ¸Ànð¥sÉÊqï £ÀPÀ®£ÀÄß vÉÆÃj¹ ¸ÀzÀj zÉÆõÁgÉÆÃ¥Àt ¥ÀvÀæzÀ°ègÀĪÀ £Á®Ì£Éà DgÉÆæ CAd£Á C±ÉÆÃPï PÀĪÀiÁgï ªÉÊ¥sï D¥sï C±ÉÆÃPï PÀĪÀiÁgï ¤ÃªÉà DV ¢ÝÃgÁ C£ÀÄߪÀ ¥Àæ±ÉßUÉ DgÉÆæ £Á£ÀÄ C®è CAvÀ ºÉüÀÄvÁÛgÉ. ¸ÀzÀj zÉÆõÁgÉÆÃ¥Àt ¥ÀvÀæ C®ºÀ¨Ázï ¨ÁåAQ£ÀªÀgÀÄ PÉÆlÖ ¦gÁåzÉAiÀÄ ªÉÄÃ¯É zÉÆõÁgÉÆÃ¥Àt ¥ÀvÀæ ¸À°è¹zÀÄÝ PÀAqÀÄ §gÀÄvÀÛzÉ. ¸ÀzÀj zÁR¯ÉAiÀÄ£ÀÄß ¤.r.9 JAvÀ DgÉÆæ ¥ÀgÀ ªÀQîgÀ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀ ºÉÆuÉUÁjPÉUÉ M¼À¥ÀlÄÖ UÀÄgÀÄw¸À¯ÁVzÉ."
Moreover, as pointed out by the learned counsel for the accused, the relevant portion in the evidence of complainant as PW1 reads thus:
"PÁ¥ÉÇðgÉõÀ£ï ¨ÁåAQ£ÀªÀgÀÄ £À£Àß ªÀÄvÀÄÛ £À£Àß ªÀiÁf ¥Àw ºÁUÀÆ EvÀgÉAiÀĪÀgÀ ªÉÄÃ¯É ¦gÁåzÉAiÀÄ£ÀÄß ¤Ãr D§UÉÎ ¹¹6510B2013 PÉÃ¸ï ªÀiÁåf¸ÉÖçÃmï PÉÆÃmïð ªÀÄÄAzÉ ¥ÉArAUï EzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. £À£Àß ªÀiÁf UÀAqÀ£À ªÉÄÃ¯É PÉøï EzÀÝ §UÉÎ £À£ÀUÉ UÉÆwÛ®è. ¸ÁQëUÉ ¸ÀzÀj ¥ÀæPÀgÀtzÀ zÁR¯ÉAiÀÄ ¸Ànð¥sÉÊqï £ÀPÀ®£ÀÄß vÉÆÃj¸À¯ÁVzÀÄÝ DgÉÆæ ¥ÀgÀ ªÀQîgÀÄ ¸ÀzÀj zÁR¯ÉUÀ¼À£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀ ºÉÆuÉUÁjPÉUÉ M¼À¥ÀlÄÖ zÁR¯ÉUÀ¼À£ÀÄß ¤.r.10 CAvÀ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ."47 Spl.C. No.185/2018
It is also the evidence of the complainant as PW1 in the cross- examination that:
"¥ÀAeÁ¨ï £ÁåµÀ£À¯ï ¨ÁåAQ£ÀªÀgÀÄ £À£Àß ªÉÄÃ¯É ¨ÉÃgÉ ªÁºÀ£ÀªÀ£ÀÄß vÉÆÃj¹ ªÉÆøÀ ªÀiÁr ¸Á® ¥ÀqÉzÀ §UÉÎ £À£Àß ªÉÄÃ¯É PÉÆlÖ ¦gÁå¢UÉ ¥ÀÇgÀPÀªÁV ¸ÀzÁ²ªÀ£ÀUÀgÀ ¥ÉÇðøïgÀªÀgÀÄ £À£Àß ªÉÄÃ¯É zÉÆõÁgÉÆÃ¥Àt ¥ÀvÀæ ¸À°è¹ ¹¹19223B2013 PÉÃ¸ï £À£Àß ªÉÄÃ¯É ¥ÉArAUï EzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. £À£Àß ªÀiÁf UÀAqÀ£À ªÉÄÃ¯É PÉøï EzÀÝ §UÉÎ £À£ÀUÉ UÉÆwÛ®è. ¸ÁQëUÉ ¸ÀzÀj ¥ÀæPÀgÀtzÀ zÁR¯ÉAiÀÄ ¸Ànð¥sÉÊqï £ÀPÀ®£ÀÄß vÉÆÃj¸À¯ÁVzÀÄÝ DgÉÆæ ¥ÀgÀ ªÀQîgÀÄ ¸ÀzÀj zÁR¯ÉUÀ¼À£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀ ºÉÆuÉUÁjPÉUÉ M¼À¥ÀlÄÖ zÁR¯ÉUÀ¼À£ÀÄß ¤.r.11 CAvÀ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ."
Further, the relevant portion in the evidence in cross-examination of the complainant as PW1 that:
"¸ÁgÀ¸Àégï ¨ÁåAPï £ÀªÀgÀÄ £À£Àß ªÉÄÃ¯É ¨ÉÃgÉ ªÁºÀ£ÀªÀ£ÀÄß vÉÆÃj¹ ªÉÆøÀ ªÀiÁr ¸Á® ¥ÀqÉzÀ §UÉÎ £À£Àß ªÉÄÃ¯É PÉÆlÖ ¦gÁå¢UÉ ¥ÀÇgÀPÀªÁV ¸ÀzÁ²ªÀ£ÀUÀgÀ ¥ÉÇðøïgÀªÀgÀÄ £À£Àß ªÉÄÃ¯É zÉÆõÁgÉÆÃ¥Àt ¥ÀvÀæ ¸À°è¹ ¹¹11605B2013 PÉÃ¸ï £À£Àß ªÉÄÃ¯É ¥ÉArAUï EzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. £À£Àß ªÀiÁf UÀAqÀ£À ªÉÄÃ¯É PÉøï EzÀÝ §UÉÎ £À£ÀUÉ UÉÆwÛ®è. ¸ÁQëUÉ ¸ÀzÀj ¥ÀæPÀgÀtzÀ zÁR¯ÉAiÀÄ ¸Ànð¥sÉÊqï £ÀPÀ®£ÀÄß vÉÆÃj¸À¯ÁVzÀÄÝ DgÉÆæ ¥ÀgÀ ªÀQîgÀÄ ¸ÀzÀj zÁR¯ÉUÀ¼À£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀ ºÉÆuÉUÁjPÉUÉ M¼À¥ÀlÄÖ zÁR¯ÉUÀ¼À£ÀÄß ¤.r.12 CAvÀ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ."
Moreover, as submitted by the learned counsel for the accused, the relevant portion in the evidence in cross-examination of PW2 reads thus:
"FUÀ vÉÆÃj¹zÀ zÁR¯É PÀ§â£ï ¥ÀÁPïð ¥ÉÇðøÀgÀÄ £À£Àß ªÉÄÃ¯É ºÁQzÀ Qæ«Ä£À¯ï ªÉÆPÀzÀݪÉÄ ¹¹.6245B2013 EzÀÄÝ ¸ÀzÀj ¥ÀæPÀgÀtzÀ°èAiÀÄ gÉÆÃd£ÀÁªÉÄ £ÀPÀ®Ä, zÉÆõÁgÉÆÃ¥Àt ¥ÀvÀæ ºÁUÀÆ EvÀgÀ zÁR¯ÉUÀ¼À£ÀÄß ¸ÉÃj ¤.¦.14 CAvÀ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¸ÀzÀj ¥ÀæPÀgÀtzÀ°è £À£Àß eÉÆvÉ ¨ÀszÁægÁzÀså, ¢Ã¥ÀPï ªÀÄvÀÄÛ gÁzsÁ CUÀgïªÁ¯ï C°AiÀiÁ¸ï CAd£Á, «dAiÀÄ®Qëä ªÀÄvÀÄÛ ¥ÀæPÁ±ï CgÉÆæ EzÁÝgÉ. £À£ÀUÉ CAd£Á C£ÀÄߪÀ JgÀqÀÄ d£À ºÉAqÀ¢gÀÄ EzÁÝgÉ."48 Spl.C. No.185/2018
Hence, on the basis of the documents at Exs.D.8 to D.12 and D.14, it is the submission of the learned counsel for the accused that there are many criminal cases against the complainant and therefore, her contention in the case on hand is not believable. But, the case on hand is the case for the offence punishable under Sec.138 of N.I. Act. Therefore, the conduct of the complainant, even if it accepted that there are criminal cases pending against her, cannot be a ground to disbelieve the case of the complainant. Moreover, the documents at Exs.D8 to D.12 are got marked subject to the condition that those documents should be proved by the accused. But the accused has not chosen to adduce any independent evidence or produce any document to prove the documents at Exs.D.8 to D.12. Hence, the documents at Exs.D.8 to D.12, and D.14 do not merit consideration against the complainant in the case on hand.
47. However, as discussed herein above, the complainant has failed to make out any case in her favour that there is presumption under Sec.139 of N.I. Act in respect of the cheque at Ex.P.2. Further, the complainant has failed to prove that she had any financial capacity to lend the money in crores to the accused at 49 Spl.C. No.185/2018 the relevant time. Therefore, the case of the complainant that the accused issued the cheque at Ex.P.2 in favour of the complainant for discharging any legally enforceable debt or liability appears to be most improbable and hence, the complainant has failed to prove her case beyond all reasonable doubt.
48. The contention of the accused is that as per the case of the complainant, she had lent amount in crores on several occasions and therefore, there were series of loan transactions and as per the case of the complainant the accused agreed to repay the loan amount with interest at 12% p.a. Therefore, the submission of the learned counsel for the accused is that without there being any money lending licence the case of the complainant does not merit consideration. It is true that as pointed out by the learned counsel for the accused, the relevant portion in the evidence of complainant as PW1 in cross-examination reads thus:
"11. ಖಾಯಿದಯ ಪಪಕಾರ ಹಣವನಕ ನ ಬಡಡಗಾಗ ಕಕಟಟರ ಕನರಟಕ ಮನ ಲಅಡರಕ ಆಕಟ ಅಡಯಲ ಲಪಸರಕ ಪಡಯಬಮಕಾಗಕತತದ. 2011 ಮತಕತ ಅದರ ಹಅದನ ಅವಧಿಗ ಲಮವದಮವ ವನವಹರ ಮಡಲಕ ನನನ ಬಳ ಲಪಸರಕ ಇರಲಲಲ."
Hence, the submission of the learned counsel for the accused is that the complainant as PW1 in her cross-examination has admitted that she had no money lending licence and therefore, the 50 Spl.C. No.185/2018 contention of the complainant that she gave any loan to the accused does not merit consideration.
49. As pointed out by the learned counsel for the accused, it is true that as per Sec.5 of the Money Lenders Act, "no person shall carry on business of money lending except under and in accordance with the terms and conditions of the licence and money lender shall obtain such licence. But, even if for the sake of argument, it is accepted that the complainant gave loan to the accused on several occasions, it is not the case of the complainant that she is doing money lending business. It is true that the learned counsel for the accused has relied on the judgment of the Hon'ble High Court of Karnataka reported in ILR 1985 KAR 912 (Basappa & others Vs. Garemane Kamanna) in which referring to Sec.5 of Karnataka Money Lenders Act, 1961, it is held that:
"Section 5 of the Karnataka Money Lenders Act, 1961 creates an absolute bar regarding the carrying on of the money-lender's business without a licence. A detailed examination of the provisions of the Act leads to the conclusion that the object of the Act was to serve a public purpose and the mischief it sought to secure was to protect borrowers from unscrupulous and usurious money lenders by prohibiting them from lending monies without obtaining licence, on pain of imprisonment (vide Section 59) as well as empowering Courts to dismiss such suits."51 Spl.C. No.185/2018
There is absolutely no dispute regarding the principle of law laid down in the above referred decision regarding requirement of money lenders licence to carry out business of money lending. But the said decision is regarding the suit filed for recovery of money by the concerned plaintiff. On the other hand, the case on hand is not the suit, but the criminal case against the accused for the offence punishable under Sec.138 of N.I. Act. Moreover, it is not at all the case of the complainant that she was doing money lending business. Hence, even though there is no dispute regarding principle of law laid down in the above referred decision, it does not apply to the case on hand. Therefore, the contention of the counsel for the accused that there being no money lenders licence obtained by the complainant, her case cannot be considered in the case on hand, does not merit consideration on the facts of the case and also in law.
50. As pointed out by the learned counsel for the accused, as per the document at Ex.P.1 the accused was alleged to have agreed to repay the amount of Rs.11,88,00,000/- together with current and future interest at 12% p.a. within the period of one year from the date of execution of the said receipt and 52 Spl.C. No.185/2018 acknowledgement at Ex.P.1. As discussed herein above, the receipt and acknowledgement at Ex.P.1 was executed on 26.09.2011. Hence, if at all the accused had availed loan of Rs.11,88,00,000/- from the complainant, he should repay the said amount with interest at 12% p.a. within 26.09.2012. Moreover, it is the case of the complainant that she lent the amount to the accused by borrowing loan from one Ashok Kumar and his wife Radha Ashok Kumar agreeing to repay the same with interest. But the cheque at Ex.P.2 is for Rs.11,88,00,000/-. There is no amount of interest included in the cheque amount. As discussed herein above, the cheque at Ex.P.2 was issued after more than 3 years and 7 months from the date of execution of the Receipt of Acknowledgement at Ex.P.1. Hence, if at all the accused agreed to pay interest on the said loan amount, as on the date of cheque at Ex.P.2., the interest amount would have been Rs.5,10,84,000/-. Thus it is most improbable that the complainant borrowed amount agreeing to pay interest and she advanced the said amount on credit to the accused, and even then the complainant has not claimed the interest of more than Rs.5,00,00,000/- from the accused on the alleged loan amount of Rs.11,88,00,000/-. Therefore, the case of the complainant is not at all believable.
53 Spl.C. No.185/2018
51. From the discussion made herein above, it is clear that the complainant has failed to prove that the accused availed any loan from her. Even though the complainant in her evidence has deposed that the accused executed On-Demand Promissory Note and Consideration Receipt as and when he received loan amount from her, there is no such document forthcoming from the complainant. Hence, as argued by the learned counsel for the accused, the complainant has utterly failed to prove that the accused borrowed a sum of Rs.11,88,00,000/- in total as per the amounts mentioned in the receipt and acknowledgement at Ex.P.1 and in discharge of such loan, the accused issued the cheque at Ex.P.2.
52. Moreover, no prudent man would receive the cheque at Ex.P.2 when the said cheque is dated beyond the period of limitation from the date of availment of the alleged loan, that too when the amount of cheque does not include the alleged interest on the loan amount. Hence, the case of the complainant appears to be most improbable, as no prudent person would act in the ordinary course of business in receiving the cheque at Ex.P.2 regarding discharge of debt or liability of the loan stated in the receipt and 54 Spl.C. No.185/2018 acknowledgement at Ex.P.1. Therefore, the complainant has failed to prove that the accused issued the cheque at Ex.P.2 in her favour towards discharge of any legally enforceable debt or liability.
53. It is true that the learned counsel for the accused has drawn the attention of this Court to the decision of Hon'ble Apex Court reported in (2004) 12 SCC 83 (G. Pankajakshi Amma and others Vs. Mathai Mathew (Dead) through LRs and another) in which it is held that:
"If these are unaccounted transactions then they are illegal transactions. No Court can come to the aid of the party in an illegal transaction. It is settled law that in such cases the loss must be allowed to lie where it falls. In this case as these are unaccounted transactions, the Court could not have lent its hands and passed a decree. For these reasons also the suit was required to be dismissed."
There is no dispute regarding the principle of law laid down in the above referred decision. If there is illegal transaction that cannot be legalized by filing suit for recovery of such amount. But the said decision is regarding the suit for recovery of dues based on illegal transactions. On the other hand, the case on hand is criminal case for the offence punishable under Sec.138 of N.I. Act. It is absolutely not the case of the accused that he availed any loan from the complainant and the amount of such loan is in respect of illegal transaction. Therefore, even though there is no dispute 55 Spl.C. No.185/2018 regarding the principle of law laid down in the above referred decision, the said decision is not applicable to the case on hand in support of the defence put forth by the accused.
54. In the evidence in cross-examination of the complainant as PW1, the learned counsel for the accused has shown one letter issued by the State Bank of India, Vidhana Soudha Branch, which is banker of the accused. The said document is got marked at Ex.D.13. The relevant portion in the evidence of the complainant as PW1 in cross-examination reads thus:
"FUÀ vÉÆÃj¹zÀ ¨ÁåAPï «ªÀgÀuÉAiÀÄ°è ZÉPï £ÀA§gÀ 692451 jAzÀ 692475 ZÉPï ¥ÀæwUÀ¼À£ÀÄß ºÉÆA¢zÀ ZÉPï §ÄPÀÌ£ÀÄß DgÉÆæUÉ ¢B28.5.2008 gÀAzÀÄ ¤ÃqÀ¯ÁVzÉ CAvÀ ¨ÁåAQ£ÀªÀgÀÄ »A§gÀºÀ ¤ÃrzÁÝgÉ. ¸ÀzÀj zÁR¯ÉAiÀÄ£ÀÄß ¤.r.13 CAvÀ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ."
On the basis of the document at Ex.D.13 the submission of the learned counsel for the accused is that the cheque at Ex.P.2 is one of the leaves of the cheque book issued by the banker of the accused on 28.05.2008. The learned counsel for the accused has argued that the cheque at Ex.P.2 is dated 30.04.2015 and hence, it is not believable that the accused would retain the cheque leaf at Ex.P.2 for the period of about 7 years from the date of issue of the 56 Spl.C. No.185/2018 concerned cheque book. But such evidence does not vitiate the case of the complainant, as it is not open to the complainant to see as to from which cheque book the concerned borrower/accused issued cheque for discharge of the liability of the concerned loan. Hence, the document at Ex.D.13 does not help the accused in support of any defence put forth by him.
55. The complainant has produced copy of the complaint given by the accused against her to the Registrar of Co-Operative Societies, Bengaluru and it is marked at Ex.P.14. The document at Ex.P.15 is the the search report dated 03.02.2016 of the Assistant Registrar of Money Lenders, North Circle, Bengaluru Urban District, Bengaluru regarding search of the rented house wherein the complainant was residing at the relevant time. The document at Ex.P.16 is copy of the statement dated 03.02.2016 of the complainant given before the Assistant Registrar, Money Lenders, regarding the alleged complaint given by the accused against the complainant. But the documents at Exs.P.14 to P.16 do not help the case of the complainant to show that the cheque at Ex.P.2 was issued in her favour for discharging legally enforceable debt or liability.
57 Spl.C. No.185/2018
56. The argument of the learned counsel for the complainant is that the accused put forth his defence in his reply notice at Ex.P.10 that the complainant committed theft of the signed cheque leaf kept in the house of one Annarao Muttathi and thereby using said cheque leaf, forged and concocted the cheque at Ex.P.2. Hence, the submission of the learned counsel for the complainant is that the accused admitted his signature in the cheque at Ex.P.1. But, as argued by the learned counsel for the accused and also as discussed herein above, even if it is accepted that the accused admitted his signature in the cheque at Ex.P.2, such admission does not prove the case of the complainant that the cheque at Ex.P.2 was issued by the accused towards discharge of legally enforceable debt or liability in respect of the loan alleged in the document Ex.P.1.
57. Moreover, as discussed herein above, even though the accused has denied the execution of the receipt and acknowledgment at Ex.P.1 by him, the complainant has not chosen to examine any independent witness to prove the execution of the said document at Ex.P.1 to show that the said document was executed by the accused in her favour towards availment of any 58 Spl.C. No.185/2018 loan from her. Further, as discussed herein above, even if the cheque at Ex.P.2 was returned unencashed as per memo at Ex.P.4 issued by the concerned banker of the complainant and the accused failed to pay the said amount thereafter, there is absolutely no case made out against the accused for the offence punishable under Sec.138 N.I. Act. The cumulative effect of the evidence forthcoming on record clearly show that the complainant has failed to prove that the accused availed loan from her as shown in the document at Ex.P.1 and in discharge of liability of any such loan the accused issued cheque at Ex.P.2 in her favour.
58. Moreover, our Hon'ble High Court of Karnataka in the decision reported in 2021(1) KCCR 588 (M.K. Appaji, Ex MLA Vs. T. Pushparaj) considering the facts of the said case, has been pleased to hold that:
"It has to be necessarily held that the presumption that exists in favour of the complainant was successfully rebutted by the accused. However, the complainant could not prove his case, so also, the alleged guilt of the accused. As observed above, even after giving the benefit of presumption under Sec.139 of N.I. Act in favour of the complainant, the said presumption since has been successfully rebutted by the accused and the complainant having utterly failed to establish the alleged guilt against the accused for the offence punishable under Sec.138 of N.I. Act..... The appeal is bereft of any merit."59 Spl.C. No.185/2018
In the said case, the Hon'ble High Court of Karnataka has dismissed the appeal and upheld the acquittal of the accused for the offence punishable under Sec.138 of N.I. Act. In the case on hand, as discussed herein above, the complainant has failed to prove her financial capacity to lend any amount to the accused at the time of alleged loan and also earlier or subsequent thereto. Moreover, the complainant is alleged to have lend huge money not only in lakhs, but in crores.
59. As discussed herein above, on the basis of evidence in cross-examination of the complainant as PW1 and also by way of production of concerned documents, the accused in the case on hand has successfully rebutted the presumption raised in favour of the complainant under Sec.138 of N.I. Act. Hence, the principle of law laid down in the above referred decision aptly applies to the case on hand. Therefore, even if the cheque at Ex.P.2 was returned unencashed, there is absolutely no case against the accused for the offence punishable under Sec.138 of N.I. Act. If the totality of the evidence on record is considered, doubt arises regarding the case of the complainant. Hence, the complainant has failed to prove beyond reasonable doubt that the accused has committed any 60 Spl.C. No.185/2018 offence punishable under Sec.138 of N.I. Act. Consequently, the point No.1 is answered in the negative.
60. Point No.2: From the discussion made herein above, it is clear that the accused is found not guilty of the offence punishable under Sec.138 of N.I. Act and hence, the accused deserves to be acquitted of the offences charged against him in this case. In the result, therefore, I proceed to pass the following:
ORDER Acting under Sec.255(1) r/w Sec.235(1) of Cr.P.C., the accused is acquitted of the offence punishable under Sec.138 of Negotiable Instruments Act, 1881.
The bail bond executed by the accused and the surety bond shall stand cancelled.
(Dictated to the Judgment Writer, transcribed and typed by him, revised and corrected by me and then pronounced in the Open Court on this the 22nd day of April, 2021) (T.N. Inavally) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/ MLAs in the State of Karnataka) Annexure List of witnesses examined on behalf of complainant:
PW1 Smt. Anjana Shanthaveer PW2 V. Ashok Kumar 61 Spl.C. No.185/2018
List of documents exhibited on behalf of complainant:
Ex.P.1 Receipt and acknowledgment dated
26.09.2011
Ex.P.1(a) Signature of the accused in Ex. P.1
Ex. P.2 Original cheque dated 30.04.2015
Ex. P.2(a) Signature of the accused in Ex.P.2
Ex. P.3 Counterfoil of the challan of Karnataka
Apex Bank dated 30.04.2015 for having
presented the cheque
Ex. P.4 Endorsement dated 05.05.2015 issued by
Apex Co-Op. Bank Ltd. regarding of
dishonour of cheque
Ex. P.5 Legal Notice dated 13.05.2015
Ex. P.6 RLAD receipt dated 14.05.2015
Ex. P.7 RLAD receipt dated 14.05.2015
Ex. P.8 & P.9 Professional Courier receipts dated
14.05.2015
Ex. P.10 Reply notice dated 25.05.2015 issued by
the accused
Exs. P.11 to P13 Income tax returns of the complainant for
the assessment years 2013-14, 2014-15
and 2015-16 respectively
Ex. P.14 True copy of the letter dated 20.01.2016
written by the accused to the Registrar of
Co-Operative Societies, Bengaluru
Ex. P.15 Carbon copy of Search Report dated
03.02.2016 of the Assistant Registrar of
Money Lenders, North Circle, Bengaluru
Urban District, Bengaluru
Ex. P.16 Carbon copy of statement of the
complainant dated 03.02.2016 recorded
by the Assistant Registrar of Money
Lenders, North Circle, Bengaluru Urban
District, Bengaluru
Ex. P.17 Summons to Assessee dated 05.11.2015
62 Spl.C. No.185/2018
issued by Income Tax Department to the
complainant
Ex. P18 Copy of the reply dated 16.11.2015 given
by the complainant to the summons of
Income Tax Department at Ex.P.17
Ex.P.19 Memorandum of understanding dated
26.03.2011 entered into between PW2
along with others and the complainant
Ex.P.20 Certified copy of the account statement
of the Bank account No.CA138823 of
City Union Bank, Rajajinagara Branch,
Bengaluru
Exs.P.20(a) to 20(c) Relevant entries in the document at Ex.P.20 Ex.P.21 Certified copy of the account statement of the Bank account No.CBCA/ 01/000234 of Corporation Bank, Mahalakshmi Layout Branch, Bengaluru Exs.P.21(a) to 21(c) Relevant entries in the document at Ex.P.21 List of witnesses examined on behalf of the accused:
NIL List of documents exhibited on behalf of the accused:
Exs.D.1 to D.6 Postal covers Exs.D.1(a) to D.6(a) Endorsements on the postal covers at Exs.D1 to D6 Ex.D.7 Certified copy of the charge sheet in Cr.No.438/2015 of Vidhana Soudha P.S. Ex.D.8 Certified copy of the charge sheet in Cr.No.218/2012 of Chandra Layout P.S. Ex.D.9 Certified copy of the order sheet in 63 Spl.C. No.185/2018 Cr.No.165/2011 (Central P.S.) on the file of 1st ACMM, Bengaluru Ex.D.10 Certified copy of the order sheet in Cr.No.328/2011 (Mahalakshmi Layout P.S.) on the file of 1st ACMM, Bengaluru Ex.D.11 Certified copy of the order sheet in Cr.No.45/2011(Sadashivanagara P.S.) on the file of the VII ACMM, Bengaluru Ex.D.12 Certified copy of the order sheet in CC No.11605/2013 on the file of VIII ACMM, Bengaluru Ex.D.13 Copy of the Letter dated 21.10.2017 issued by Chief Manager, State Bank of India, Vidhana Soudha Branch, to the accused Ex.D.14 Certified copy of the order sheet in CC No.6245/2013 on the file of 1st ACMM, Bengaluru Ex.D.15 Copy of the letter dated 08.01.2018 issued by Joint Registrar (Legal Cell), Co-operative Societies, Bengaluru to the accused Ex.D.16 Letter dated 28.12.2017 issued by the Deputy Chief Manager (Administration), Karnataka State Souharda Federal Co-op. Society to the Personal Secretary of the President, Karnataka Border Area Development Authority, Bengaluru List of material objects marked on behalf of prosecution: Nil (T.N. Inavally) LXXXI Addl. City Civil & Sessions Judge, Bengaluru City (CCH-82) (Special Court exclusively to deal with criminal cases related to elected MPs/ MLAs in the State of Karnataka)