Bangalore District Court
Smt. R. Chanchal vs Sri M. Vajramurthy on 1 September, 2016
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY.
Dated this the 1st day of September, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.,BENGALURU.
Case No: CC No.24704/2012
Complainant: Smt. R. Chanchal
W/o. Sri R. Rikabchand,
Aged 64 years,
R/at No.401, Panchasheel Apartments
Third Cross, Third Floor,
Gandhinagar,
Bengaluru 560 009.
Represented by Power of Attorney
Ashok R. Jain,
S/o Rikab Chand Jain,
Aged 45 years,
R/at No.401, Panchasheel
Apartments, Third Cross,
III Floor, III Cross, Gandhinagar,
Bengaluru 560 009.
Accused: Sri M. Vajramurthy
S/o. Sri Muniyappa @ Budagappa,
Aged about 53 years,
R/at No.59,
Halnayakanahalli, Camalram Post,
Sarjapur Main Road,
Bengaluru -560 035.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found not guilty
Date of order: 1st September 2016
2 CC No.24704/2012
JUDGMENT
The Power of Attorney Holder of one Smt. R. Chanchal/Complainant has filed this complaint u/s. 200 of Cr.P.C. against the accused for the offences punishable u/s. 138 of NI Act.
2. The brief fact of the complaint is that the Accused and his son Sri H.V. Sandeep and his daughters Smt. H.V. Rashmi, Smt H.V. Asha Rani and Smt. H.V. Smitha Patil had jointly entered into a Memorandum of Understanding on 2.1.2012 in favour of the Complainants Sri. K. Reddeppa, Smt. R. Chanchal and Sri Jinendra Jain wherein an Agreement of Sale was entered on 31.10.2010 by this accused and his children to convey the properties bearing Nos. 2/1 and 2/5 of Halanayakanahalli Village of Varthur Hobli, Bengaluru North Taluk along with property bearing Nos. 30/1 and 31/1 situated at Seegepura village, Lakkur Hobli, Malur Taluk of Kolar District for a valuable sale consideration amount of Rs.70,00,000/- as per the terms and conditions of the said document. Even though there was a concluded contract between this Complainant and accused and his children, the accused along with his children did not came forward to complete the transaction based on the Sale Agreement and they breached the terms of the contract.
3. Subsequently, through Memorandum of Understanding dtd. 20.1.2012 entered in between Smt. Chanchal, Smt. Jinendra Jain of 3 CC No.24704/2012 the one part along with this accused and his children on the other part put an end to the Agreement and under the Memorandum of Understanding, the accused and his family members agreed to repay the amount received by them under the Sale Agreement by issuing three separate cheques in favour of all the three persons. Under the specific understanding, the Complainant had received a cheque from this accused bearing No.583093 dtd. 31.3.2012 for a sum of Rs.13,33,333/- drawn at M/s. Canara Bank, R.B.D. Layout, D.K. Halli, branch, Bengaluru and under the good bonafide faith, the Complainant tendered the cheque through her banker M/s. Karur Vysya Bank, Avenue Road, Bengaluru for encashment on 17.5.2012 but the said cheque returned dishonoured with an endorsement "funds insufficient" on 17.5.2012 and the same was informed to this accused with a request to pay the cheque amount so that, the transaction be put to an end.
4. It is further submitted that as the accused has failed to make payment of the Cheque amount, therefore the Complainant got issued the Legal Notice on 12.6.2012 through RPAD and also by Courier calling upon the Accused to pay the Cheque amount within 15 days from the date of receipt of Legal Notice and the said notice was duly served upon the Accused through his family member. The accused even inspite of receipt of Legal Notice, has neither chosen to make 4 CC No.24704/2012 payment of the cheque amount nor he has replied the notice by denying the transaction. The Accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus Cheque and thereby accused has committed an offence punishable under Section 138 of N.I. Act.
5. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through his counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
6. The P.A. Holder of the Complainant got examined as PW1 and he got produced 7 documents marked as Ex.P.1 to Ex.P.7 and closed his side of evidence.
7. After closure of the complainant side evidence, accused Statement u/Sec.313 of Cr.P.C. recorded and read over to the accused. The accused denied the incriminating evidence in toto and he intended to lead his evidence. He got examined himself as DW1 and no documents were marked from his side and closed his side of evidence.
5 CC No.24704/2012
8. I have heard the arguments appearing for both the parties. I have perused the entire records. The learned Counsel for the Complainant has also filed his written arguments.
9. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of N.I. Act beyond all reasonable doubts?
2. What order?
10. My findings to the above point are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
REASONS:
11. Point No.1: The entire burden is on the complainant to prove her case and also to prove the above point. In order to prove the same, the P.A. Holder of the complainant stepped into the witness box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
12. PW1 deposed that the Accused along with his son and daughters had jointly entered in to a Memorandum of Understanding on 2.1.2012 in favour of his mother along with Sri. K. Reddeppa and Sri Jinendra Jain wherein an Agreement of Sale was entered on 31.10.2010 by this accused and his children to convey the properties bearing No.2/1 and 2/5 of Halanayakanahalli Village of Varthur 6 CC No.24704/2012 Hobli, Bengaluru North Taluk along with property bearing Nos. 30/1, and 31/1 situated at Seegepura village, Lakkur Hobli, Malur Taluk of Kolar District for a valuable sale consideration amount of Rs.70,00,000/- as per the terms and conditions of the said document was cancelled. He deposed that even though there was a concluded contract between them with this accused and his children, the accused along with his children did not came forward to complete the transaction based on the Sale Agreement and they breached the terms of the contract and therefore, based on Memorandum of Understanding dtd. 20.1.2012 put an end to the Agreement and accordingly, the accused and his family members agreed to repay the amount received by them under the Sale Agreement by issuing three separate cheques in favour of all the three persons.
13. He further deposed that under the specific understanding, his mother had received a cheque from this accused bearing No.583093 dtd. 31.3.2012 for a sum of Rs.13,33,333/- drawn at M/s. Canara Bank, RBD Layout, D.K. Halli, branch, Bengaluru and under the good bonafide faith, she tendered the cheque through her banker for encashment on 17.5.2012 but he said cheque returned dishonoured with an endorsement "funds insufficient" on 17.5.2012 and the same was informed to this accused with a request to pay the cheque amount so that, the transaction be put to an end.
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14. He further deposed that that as the accused has failed to make payment of the Cheque amount, therefore his mother got issued the Legal Notice on 12.6.2012 through RPAD and also by Courier calling upon the Accused to pay the Cheque amount within 15 days from the date of receipt of Legal Notice and the said notice was duly served upon the Accused through his family member. He deposed that the accused even inspite of receipt of Legal Notice, has neither chosen to make payment of the cheque amount nor he has rpeleid the notice by denying the transaction. He deposed that the Accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus Cheque and thereby accused has committed an offence.
15. The PW1 got produced Power of Attorney executed by his mother in his favour to prosecute this case on her behalf marked as Ex.P.1. PW1 got produced the original cheque issued by this accused marked as Ex.P2. He deposed that the signature found on Ex.P2 is that of this accused and he got identified the signature found on the cheque marked as Ex.P2(a). He got produced the bank endorsement marked as Ex.P3. He got produced copy of the legal notice along with RPAD receipt marked as Ex.P4 and Ex.P4(a) respectively. He got produced the Postal Acknowledgement Due Card for having served the notice to the accused marked as Ex.P.5. He got produced the Courier Receipt 8 CC No.24704/2012 marked as Ex.P.6. He got produced the Certified Copy of the Sale Agreement and deposed that the original Agreement was produced in O.S. No.1152/2011 and he obtained the Certified Copy of the said proceedings and produced the said copy before this court marked as Ex.P.7
16. The accused has denied the entire case of the Complainant and denied the very fact that he entered into the Sale Agreement with this Complainant along with Sri Reddappa and Sri Jinendra Jain along with his children on 31.10.2010 and subsequently, he along with his family members by executing a Memorandum of Understanding got cancelled the Sale Agreement and under the Memorandum of Understanding they agreed to return the received sale consideration amount and accordingly, he had issued his Ex.P2 cheque in favour of this Complainant and the same was bounced on its presentation for encashment. The learned Counsel for the accused subjected PW1 for cross-examination and he extensively cross-examined PW1.
17. PW1 in his cross-examination stated that as per the directions of his mother, the notice was issued to this accused as per Ex.P4. He denied the suggestion that his mother was personally appeared before this court to file this complaint. Even though he admitted the suggestion that the signature found on the complaint is that of his mother and after the amendment disclosed in the complaint, 9 CC No.24704/2012 he has put his signature on the amended portion of the complaint but, he is not aware when he has put his signature. PW1 stated that the Sale Agreement executed by this accused along with his children on 31.10.2010 is not a registered Sale Agreement and even he is not able to identify and depose the exact measurement of the property intended to be purchased by them disclosed in the Sale Agreement.
18. He further stated that he cannot able to identity and depose what is the exact sale consideration amount fixed by them to each of the survey number property. PW1 stated that they have fixed the entire sale consideration amount to all the Survey Numbers of the property by all the three members. PW1 stated that at the time of execution of the Sale Agreement, his mother, his uncle, Sri Jinendra Jain and this accused were present and this accused along with his children by agreeing to sell their property for Rs.35,00,000/- executed the Sale Agreement in their favour. He admitted the suggestion that one Sri Rikab Chand Jain is his father. The accused has not only denied the execution of the Sale Agreement in favour of this Complainant along with Sri Reddappa and Sri Jinendra Jain under Ex.P7, but he has categorically denied the very fact that he brought his property bearing Sy.Nos.2/1, 2/5, 30/1 and 31/1 for the sale for the sale consideration amount of Rs.35,00,000/-.
10 CC No.24704/2012
19. In such situation, the burden is on this PW1 to prove the execution of Sale Agreement on 31.10.2010 and also to prove that the said Sale Agreement came to an end by executing a Memorandum of Understanding in between them on 20.1.2012 and under the Memorandum of Understanding, this accused along with his children agreed to return the sale consideration amount and accordingly, this accused had issued his three separate cheques in favour of all three persons separately. PW1 categorically admitted that his mother along with other two persons, have already filed a Civil Suit before the Civil Court for seeking relief of specific performance of contract in O.S. No.1152/2011 and he admitted the copy of the plaint confronted to him and admitted that the said suit was presented by his mother along with Sri Reddappa and Sri Jinendra Jain.
20. PW1 in his cross-examination stated that his mother is an house wife and she has no separate income of her own but his father Sri Rikab Chand Jain is a business man and he is doing Textile Business. PW1 stated that he has no documents with him to prove that his mother had advanced sale consideration amount along with Sri Reddappa and Sri Jinendra Jain to this accused and his children under the Sale Agreement. Moreover, it is not the testimony of PW1 that they have declared the advancement of sale consideration amount 11 CC No.24704/2012 in their income tax returns and as such, the entire amount advanced by them under the Sale Agreement is an accounted money.
21. PW1 in his cross-examination stated that he is not aware that the son of this accused was intended to establish a Petrol Bunk in his land at Seegepura Village. However, he has categorically denied the suggestion that the accused along with his son for the establishment of the petrol bunk approached his father Sri. Rikab Chand Jain for the hand loan of Rs.35,00,000/- and they borrowed the said loan amount from Sri Rikab Chand Jain. Likewise, he denied the suggestion that his father Sri Rikab Chand Jain had collected many duly signed blank cheques of this accused along with his son Sandeep and also collected duly signed blank stamp papers along with duly signed promissory notes for the security of the loan amount of Rs.35,00,000/-. However, PW1 categorically denied the suggestion that the accused has issued his duly signed Ex.P1 blank cheque in favour of his father Sri Rikab Chand Jain towards security of the loan amount of Rs.35,00,000/-. However, he has admitted that Sri Reddappa and Sri Jinendra Jain had filed the similar complaints against this accused in C.C.No.21637/2012 and C.C.No.22958/2012.
22. PW1 stated that he is not aware whether prior to filing of Suit, the son of this accused has issued his reply by denying the transaction and also by denying the execution of Sale Agreement and 12 CC No.24704/2012 Memorandum of Understanding document in favour of his mother along with Sri Reddappa and Sri Jinendra Jain. PW1 stated that his mother paid a sum of Rs.12,00,000/- out of her share to this accused under the Sale Agreement. This fact was categorically denied by this accused and he denied that the mother of PW1 had advanced a sum of Rs.12,00,000/- under the Sale Agreement and he acknowledged the said amount. In such situation, the burden is heavily on this PW1 that his mother had with her a sum of Rs.12,00,000/- to advance the same in favour of this accused and his children as a sale consideration amount from her part and she advanced the said amount under Ex.P7 document in favour of accused and his children.
23. Admittedly, the Ex.P7 document is not a complete document. The Ex.P7 document discloses that the entire document consists of 18 pages, however, the Ex.P7 produced before this court by PW1 is consists of only 4 pages. This document discloses page Nos.1, 2 and Page 17 and 18. Moreover, this document does not disclose that under the Sale Agreement, the mother of this PW1 from her side, had advanced a sum of Rs.12,00,000/- to this accused and his children apart from the amount advanced by Sri Jinendra Jain and Sri Reddappa.
13 CC No.24704/2012
24. Per contra, Ex.P7 document discloses that the mother of this PW1 had paid only a sumo f Rs.3,50,000/- under a cheque bearing No. 866737 drawn on M/s. Karur Vysya Bank, Avenue Road branch, Bengaluru. On the contrary, the PW1 has not chosen to produce any documents before this court to prove that his bearing No. 866737 was encashed by this accused received under the Sale Agreement and the said amount is towards the advance sale consideration amount.
25. Likewise, PW1 has not chosen to produce the alleged Memorandum of Understanding before this court to prove the case that the Agreement marked as Ex.P.7 was cancelled in consensus of both the parties and under the said agreement, both the parties have agreed to cancel the Sale Agreement and this accused agreed to pay a sum of Rs.13,33,333/-to each of the parties separately and accordingly, he had issued his Ex.P2 cheque in favour of mother of this PW1 to return the advance sale consideration amount. Admittedly, by not producing and marking the Memorandum of Understanding document dtd. 20.1.2012 based on which the accused alleged to have been issued the cheque is an important document before this court and by not producing the said document before this court, is fatal to the case of the Complainant.
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26. The accused has taken up the defence that he had borrowed a sum of Rs.35,00,000/- from one Sri Rikab Chand Jain for the purpose of establishment of a Petrol Bunk in the name of his son Sandeep at his property at Seegepura village of Kolar District and for the security of the said loan amount, the said Sri. Rikab Chand Jain had taken duly signed blank cheques of this accused and his son Sri Sandeep along with duly signed blank Promissory Notes and Consideration Receipts of this accused and his son and subsequently, the accused had repaid a sum of Rs.30,00,000/- to the said Sri. Rikab Chand Jain on 20.1.2012 as this accused has failed to repay a sum of Rs.5,00,000/- to Sri. Rikab Chand Jain, he misused the duly signed blank cheques, blank duly signed Promissory notes with Consideration Receipts along with duly signed blank stamp papers and through his wife and other relatives, filed separate cases against this accused by creating and concocting the duly signed cheques and blank stamp papers, even though there was no any Sale Agreement in between this accused with his family members in favour of this Complainant and her relatives.
27. The said defence was put to PW1 during his cross- examination, however, PW1 during his cross-examination denied the entire suggestions put to him and denied that the accused borrowed a hand loan of Rs.35,00,000/- from his father and denied that this accused towards security of the loan amount of Rs.35,00,000/- given 15 CC No.24704/2012 his duly signed blank cheques and blank promissory notes with Consideration Receipts and blank duly signed stamp papers in favour of Sri Rikab Chand Jain for the security of the loan amount. However, PW1 categorically denied the other suggestions put to him and denied that this accused and his children had not executed either Ex.P7 document or the Memorandum of Understanding Deed in favour of his mother or against any of his relatives. He further denied the suggestion that he colluding with Sri Rikab Chand Jain and his family members, along with Sri Reddappa, created and concocted Ex.P7 document by misusing the duly signed blank stamp paper of this accused collected towards the security of the loan amount of Rs.35,00,000/- by Sri Rikab Chand Jain. He further denied the suggestion that this accused and his children have not at all received any amount either from his mother or from Sri Reddappa and Sri. Jinendra Jain under Ex.P7 document and even he has not executed any document in their favour by agreeing to sell his property.
28. As I have discussed supra, the accused has not only denied the issuance of Ex.P2 cheque towards repayment of the Sale Consideration Amount but, he has denied the very fact that he had executed an Agreement of Sale in favour of this Complainant by agreeing to sell his property along with his son for the sale consideration amount of Rs.35,00,000/- and under and under the Sale 16 CC No.24704/2012 Agreement, he and his children had received an advance sale consideration amount from the Complainant, Reddappa and Sri Jinendra Jain.
29. The said defence was put to PW1 during his cross- examination by suggesting that the accused has not executed any document in favour of his mother by agreeing to sell his property and no such agreement was executed by this accused in their favour. The said suggestion was denied by the PW1 in his cross-examination.
30. However, the PW1 admitted that his mother had already filed a Suit along with Sri K. Reddappa and Sri Jinendra Jain against this accused and his children for Specific Performance of Contract based on Sale Agreement and the said suit is still pending adjudication before the competent Civil Court and till this day, the execution of the Sale Agreement is not proved before the Civil Court. In such situation, the testimony of PW1 that the accused and his children executed the Sale Agreement as per Ex.P7 by agreeing to sell their property and under the Sale Agreement, they have received the advance sale consideration amount and subsequently, they cancelled the Sale Agreement under a Memorandum of Understanding and as per the said Deed, the accused had issued his Ex.P2 cheque, cannot be believable and acceptable.
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31. As I have discussed supra, the accused has categorically denied the execution of Sale Agreement and even he has denied that he and his children by agreeing to sell their property, put their signature to the Sale Agreement marked as Ex.P7.
32. Moreover, PW1 has stated that stated that he has no documents with him to prove that the Ex.P2 cheque was issued by this accused under the Memorandum of Understanding to return the sale consideration amount along with compensation. Admittedly, there is no document before this court to believe the version of PW1 that a Memorandum of Understanding was executed between the parties and under the Memorandum of Understanding, the accused and his children have agreed to return the sale consideration amount along with compensation and accordingly, this accused has issued his Ex.P2 cheque for a sum of Rs.13,33,333/- in favour of the mother of this PW1.
33. As I have discussed supra, the accused has not only denied the issuance of Ex.P2 cheque in favour of this Complainant to return of sale consideration amount but, he has categorically denied the very fact that he had executed an Agreement of Sale and Memorandum of Understanding and under the Sale Agreement, he had taken advance Sale Consideration Amount from this Complainant and other two 18 CC No.24704/2012 persons and he in order to return the sale consideration amount under a Memorandum of Understanding, issued his Ex.P2 cheque.
34. In such situation, it is only the Civil Court who has got the jurisdiction to decide the dispute between the parties and to give finding regarding the execution of the Sale Agreement along with Memorandum of Understanding and also with respect to passing of sale consideration amount under the Sale Agreement along with return of the sale consideration amount by this accused in favour of the mother of this PW1.
35. As I have discussed supra, till this day, the Civil Court has not proved the execution of the Sale Agreement or the Memorandum of Understanding between the parties or passing of Advance Sale Consideration Amount under the document. In such situation, without any document and proof of the document before the proper jurisdictional court, it is not possible to come to a conclusion that the accused brought his property for sale for the Sale Consideration Amount of Rs.35,00,000/- and he and his children by agreeing to sell their property in favour of this Complainant and two others, had executed an Agreement of Sale as per Ex.P7 and under the Sale Agreement, they had received an advance sale consideration amount and subsequently, they by canceling the Sale Agreement, executed a 19 CC No.24704/2012 Memorandum of Understanding in favour of this Complainant and other two persons.
36. Moreover, the PW1 in order to prove that his mother had with her a sum of Rs.3,50,000/- as on date of Sale Agreement and she by agreeing to purchase the property of this accused along with two other persons, had given her cheque for a sum of Rs.3,50,000/- under the Sale Agreement to this accused and the said cheque was encashed by this accused, has not chosen to produce any piece of document before this court. No doubt, PW1 has stated that his mother had paid the advance sale consideration amount of Rs.3,50,000/- by way of cheque to the accused. However, he has not chosen to prove this fact by producing the bank account extract to prove that his mother's cheque was encashed by this accused and his children.
37. On the contrary, this fact was categorically denied by this accused. He denied the very fact that he had received a sum of Rs.3,50,000/- from this Complainant by way of cheque under Sale Agreement. In such situation, the burden is heavily on this PW1 to prove the Sale Consideration Amount under the Sale Agreement. Admittedly, the PW1 except adducing the oral evidence that his mother had advanced Sale Consideration Amount to this accused under Sale Agreement, which has been categorically denied by this 20 CC No.24704/2012 accused, nothing has been placed before this court to prove the passing of Consideration Amount and to prove that as on date of Ex.P2 cheque, there existing a legally enforceable debt or other liability on this accused and this accused by admitting his liability, had issued Ex.P2 cheque. PW1 admitted that he has not produced any document before this court to prove that his mother had paid the Sale Consideration Amount under the Sale Agreement and her cheque was encashed by this accused.
38. PW1 denied the suggestion that even the accused is not liable to pay the cheque amount involved under Ex.P2, his mother only with an intention to make an unlawful gain for herself and to cause monetary loss to this accused, has misused his duly signed blank cheque colluding with her husband Sri Rikab Chand Jain and filed this false complaint by creating the cheque for Rs.13,33,333/-. Though the accused has not chosen to deny a fact that Ex.P2 cheque is belong to him and even he has not denied his signature found on Ex.P2 cheque. On the contrary, the accused has categorically denied the fact that he has issued Ex.P2 cheque to return the sale consideration amount along with compensation to the Complainant.
39. As I have discussed supra, the accused has categorically denied the very execution of Sale Agreement and denied the fact that he had received the sale consideration amount under Sale Agreement. 21 CC No.24704/2012 In such situation, the burden is heavily on this Complainant to prove the execution of the Sale Agreement by producing the entire document and to prove that under the Sale Agreement, his mother had paid advance sale consideration amount to this accused and his children and this accused in order to return the sale consideration amount along with compensation thereon, had issued his Ex.P2 cheque. The Complainant in order to prove this fact, except adducing the oral evidence, which has been categorically denied by this accused, nothing has been placed before this court to believe his testimony and to believe the execution of Sale Agreement.
40. Merely because, the accused has not sent his reply after receipt of Ex.P4 document it does not become automatic that the Complainant has proved the execution of the Sale Agreement and also proved the receipt of the sale consideration amount by this accused. As I have discussed supra, Admittedly, the Complainant till this day, has not proved the execution of Sale Agreement before the competent Civil Court in a Suit. The Complainant has not even chosen to examine the witness before this court, who has been witnessed the transaction and also Sale Consideration Amount to this accused.
41. In this case, except the oral evidence of this PW1, there is nothing on record to believe the testimony of PW1 and to accept the execution of Sale Agreement. Admittedly, the Complainant except 22 CC No.24704/2012 adducing the oral evidence, which has been categorically denied by this accused, has utterly failed to clear all the doubts aroused in the mind of court by adducing cogent and convincing evidence before this court.
42. The accused in order to rebut the presumption available t to this Complainant u/Sec.139 of N.I. Act and also to prove his defence, stepped into the witness-box and got examined as DW1. He deposed that the Complainant is an utter stranger to him and he never approached this Complainant and he has not seen her and even he has not seen her even before this court in this case. He deposed that he has not made any kind of transaction with this Complainant. He deposed that he has not issued his Ex.P2 cheque in favour of this Complainant for any purpose.
43. He deposed that he along with his son had a intention to establish a Petrol Bunk in his property situated at Seegepura village of Malur Taluk and therefore, he was in need of money of Rs.35,00,000/- and for this reason, he along with his son approached one Sri. Rikab Chand Jain of Gandhinagar, Bengaluru and borrowed the hand loan of Rs.35,00,000/-. He deposed that the said Sri Rikab Chand Jain for the security of the loan amount, had collected his duly signed blank cheques along with duly signed blank stamp papers and duly signed 23 CC No.24704/2012 blank promissory notes with Consideration Receipts. He deposed that the said Sri. Rikab Chand Jain misused his duly signed blank stamp paper and created the said document as Sale Agreement and based on the created document, issued a Notice in his favour and also filed a false Suit against him and his children before the Civil Court.
44. He further deposed that he has already repaid a sum of Rs.30,00,000/- to this Rikab Chand Jain and for the remaining loan amount of Rs.5,00,000/-, the said Sri Rikab Chand Jain has also taken his three duly signed blank cheques and subsequently, the said Sri Rikab Chand Jain misused his three cheques and through his wife Smt. Chanchal and his relative Sri Reddappa and Sri Jinendra Jain, filed three separate cases against him by creating and concocting the cheques as Ex.P2 for Rs.13,33,333/-. He deposed that he has not issued his Ex.P2 cheque in favour of this Complainant for repayment of the sale consideration amount and even he is not liable to pay the cheque amount. DW1 prays to dismiss the complaint.
45. The DW1 in his cross-examination categorically denied the suggestion that he by agreeing to sell his property along with his children, had executed Ex.P7 Sale Agreement in favour of this Complainant along with one Sri Reddappa and Sri Jinendra Jain on 31.10.2010 for the sale consideration amount of Rs.35,00,000/-. He 24 CC No.24704/2012 further denied the suggestion that as he has failed to execute the Sale Deed as per the terms of the Sale Agreement in favour of above said three persons, the said three persons have jointly a Suit against him for the Specific Performance of Contract. Though he admitted that Suit was filed by them against him however, he has categorically denied the suggestion that on 20.1.2012 he had executed a Memorandum of Understanding in favour of the above referred three persons by agreeing to pay a sum of Rs.70,00,000/- including Rs.35,00,000/- of sale consideration amount and Rs.35,00,000/- of compensation and out of the said amount, Rs.30,00,000/- has to be paid by cash and remaining Rs.40,00,000/- shall be payable through cheques.
46. He denied the suggestion that towards the repayment of the said sale consideration amount, under the Memorandum of Understanding he had given his three separate cheques in favour of above referred three persons separately each for Rs.13,33,333/-. He denied the suggestion that all the three said cheques issued by him were bounced and subsequently, all the three said persons issued a notice against him calling upon him to make payment of the cheques amount and he even inspite of receipt of Legal Notice, failed to make payment of the cheque amount.
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47. The DW1 has categorically stated that he has not at all received any notice from this Complainant prior to filing of this complaint and as such, he was unable to sent his reply by denying the transaction. He denied the suggestion that he is liable to pay the cheque amount to this Complainant. He denied the suggestion that once he paid the cheque amount to the Complainant, the Complainant has to withdraw the Suit filed by them before the Civil Court.. He denied the suggestion that there is no connection of Sri Rikab Chand Jain to this complaint and he only with an intention to ran away from his liability to pay the cheque amount, has deposed false before this court that he had given his duly signed blank cheque in favour of Sri Rikab Chand Jain for the security of the remaining loan amount of Rs.5,00,000/-. He denied the suggestion that he is liable to pay the cheque amount.
48. No doubt, the Complainant during the cross-examination of DW1, put a suggestion to him that he with an intention to ran away from his liability to pay the cheque amount, is deposing false before this court that he had given his duly signed three blank cheques in favour of one Sri. Rikab Chand Jain towards the security of the remaining loan amount of Rs.5,00,000/-. Admittedly, the accused has not chosen to produce any documents before this court to prove that he had borrowed a sum of Rs.35,00,000/- from one Sri. Rikab Chand 26 CC No.24704/2012 Jain with an intention to establish a Petrol Bunk in his property along with his son and towards the security of the said loan amount, he had given his duly signed blank cheques, duly signed blank stamp papers and duly signed blank Promissory Notes. However, DW1 has categorically denied the entire suggestions put to him and denied that he with an intention to ran away from his liability to pay the cheque amount, is deposing false before this court.
49. The Complainant except putting some suggestion to DW1 that he had issued his Ex.P2 cheque in favour of this Complainant to return sale consideration amount, which has been categorically denied by DW1, nothing has been elicited from his mouth to disbelieve his testimony and to discard his documentary evidence.
50. As I have discussed supra, the initial burden is on this Complainant to prove that this accused had executed Ex.P7 Sale Agreement in her favour along with Sri Reddappa and Sri Jinendra Jain by agreeing to sell his property for the sale consideration amount of Rs.35,00,000/- and under the Sale Agreement, they advanced a total sum of Rs.35,00,000/- to this accused and his children. Likewise, the burden is on this Complainant to prove that after the execution of Ex.P7 document on 20.1.2012 they entered into a Memorandum of Understanding among themselves and under the said Deed, the 27 CC No.24704/2012 accused and his children have agreed to return the entire sale consideration amount of Rs.35,00,000/- along with they agreed to pay compensation at the rate of Rs.35,00,000/- for the total sum of Rs.70,00,000/- and in order to return the said amount, this accused had issued his three separate cheques in favour of the said three persons separately each for Rs.13,33,333/- and cheques were bounced. Admittedly, in order to prove this fact, the PW1 has not chosen to produce cogent and convincing evidence before this court.
51. There is nothing on record to believe that this accused had received a sum of Rs.35,00,000/- under Ex.P7 document and after receipt of the said amount, he along with his children had executed Ex.P7 document in favour of the above said three persons. Likewise, there is nothing on record to believe that this accused and his children have agreed to cancel the Agreement and they agreed to pay a sum of Rs.70,00,000/- to the above referred persons by way of cash and cheques and accordingly, they executed a Memorandum of Understanding in favour of this Complainant and the above referred persons and under the said Deed, he had issued his Ex.P2 cheque. After this accused led his evidence before this court, the burden shifts on to this Complainant to adduce rebuttal evidence and even the burden is on this Complainant to adduce the rebuttal evidence, she 28 CC No.24704/2012 has not chosen to lead her rebuttal evidence by denying the testimony of DW1.
52. As I have discussed supra, the Complainant except adducing the oral evidence and by denying the testimony of DW1, has not chosen to either prove the execution of Ex.P7 document or to produce the Memorandum of Understanding Deed before this court or to prove the said document, even though the burden is shifted on him to prove the same.
53. The oral and documentary evidence adduced before this court by the accused falsify the entire case of the Complainant and also rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. After this accused led his evidence before this court, the Complainant has not chosen to adduce his rebuttal evidence before this court to prove her financial capacity to advance the huge sale consideration amount of Rs.35,00,000/- to this accused and even she has not produced documents to prove that as on date of Ex.P7 document, she along with the above referred two persons, had advanced a sum of Rs.35,00,000/- to this accused as a sale consideration amount.
54. As I have discussed supra, the Complainant during the cross-examination of DW1, except putting suggestions to him that he 29 CC No.24704/2012 had issued his Ex.P2 cheque to return of the sale consideration amount along with compensation amounting to Rs.13,33,333/-, which has been categorically denied by DW1, nothing has been elicited from his mouth to disbelieve his testimony or to discard his evidence. As I have discussed supra, the initial burden is always on this Complainant to prove the existence of debt or liability as on date of Ex.P2 cheque on this accused and to prove that the accused by admitting his liability in order to discharge his liability, had issued his Ex.P2 cheque.
55. As I have discussed supra, the Complainant has utterly failed to prove the initial burden lies on him and to prove the existence of debt or other liability on this accused as on date of Ex.P2 cheque. As I have discussed supra, the Complainant has also failed to prove her financial capacity to pay the sale consideration amount of Rs.35,00,000/- to this accused along with Sri Reddappa and Sri Jinendra Jain.
56. It is well-settled principle of law that the presumption u/Sec.139 of N.I. Act is available to this Complainant only with respect to issuance of cheque for repayment of debt or liability by this accused. However, the burden is on this Complainant to prove the existence of debt or other liability as on date of issuance of cheque to the 30 CC No.24704/2012 satisfaction of the court to prove that she had the financial capacity to pay amount of Rs.35,00,000/- as a sale consideration amount.
57. Here in this case, the Complainant except adducing the oral evidence that she along with Sri Reddappa and Sri Jinendra Jain, had advanced total sale consideration amount of Rs.35,00,000/- under Ex.P7 and after the accused and his children executed Memorandum of Understanding by canceling the Sale Agreement and they agreed to return a sum of Rs.70,00,000/- to this Complainant and Sri. Reddappa and Sri Jinendra Jain and towards the repayment of the said amount, the accused had issued his Ex.P2 cheque, has not chosen to prove the same to the satisfaction of the court. The Complainant has utterly failed to prove the existence of debt or other liability on this accused as on date of Ex.P2 cheque and also to prove that Ex.P2 cheque was issued towards discharge of his liability to return the sale consideration amount. The Complainant has utterly failed to prove that this accused is liable to pay the cheque amount disclosed in Ex.P2.
58. The learned Counsel for the Complainant has vehemently argued before this court that the accused has not chosen produce any documentary evidence before this court to prove that he has given his duly signed blank cheque in favour of Sri Rikab Chand Jain towards the security of the loan amount of Rs.5,00,000/- and the said Sri Rikab 31 CC No.24704/2012 Chand Jain colluding with his wife and relatives, misused his duly signed blank cheques and blank duly signed stamp paper for the purpose of this case against the accused and filed this false complaint through his wife. He further argued that the accused has not produced any documents before this court to prove that he along with his son, had borrowed a sum of Rs.35,00,000/- from Sri Rikab Chand Jain with an intention to establish a Petrol Bunk in their property and towards the security of the said loan amount, given his duly signed blank cheques and duly signed blank Promissory Note and duly signed blank stamp paper.
59. He has further argued that the entire burden is on this accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act and this accused has to rebut the presumption by adducing cogent and convincing evidence before this court. He argued that here in this case, the accused except adducing the oral evidence that he had issued duly signed blank cheque in favour of Sri Rikab Chand Jain for the security of the loan amount, has utterly failed to prove his defence to the satisfaction of the court. He further argued that the accused only with an intention to ran away from his liability, has taken up the false defence before this court and therefore, the defence of the accused has to be discarded.
32 CC No.24704/2012
60. He further argued that the accused even though executed Sale Agreement in favour of this Complainant and Sri Reddappa and Sri Jinendra Jain as per Ex.P7 and also executed a Memorandum of Understanding by canceling the Sale Agreement and under the said document, he agreed to pay a sum of Rs.70,00,000/-, now only with an intention to ran away from his liability, has taken up the false defence that Sale Agreement is created and concocted by misusing his signature on the blank stamp paper. He argued that the accused only with an intention to ran away from his liability and to pay the cheque amount, has taken up false defence before this court. He has argued that the Ex.P2 cheque is belonged to this accused and even the signature on the said cheque, is that of this accused and therefore, by drawing the presumption in favour of this Complainant u/Sec.138 of N.I. Act by holding that the accused has not successfully rebutted presumption available to this Complainant u/Sec.139 of N.I. Act, he has to be convicted for the offence punishable u/Sec. 138 of N.I. Act. The arguments canvassed by the learned Counsel for the Complainant, is not convinced this court and it holds no merit.
61. Admittedly, the Complainant except adducing the oral evidence that she had the financial capacity to pay the sale consideration amount of Rs.35,00,000/- to this accused and she along with Sri Reddappa and Sri Jinendra Jain, paid the said amount to this 33 CC No.24704/2012 accused and his children under Ex.P7 document, has not chosen to prove the same by documentary evidence before this court. Complainant is a house-wife having no separate source of income on her own. Moreover, she is not an Income Tax Assessee and even she has not stated whether she is earning more than taxable income and therefore, she had the capacity to advance the sale consideration amount of Rs.35,00,000/- along with Sri Reddappa and Sri Jinendra Jain.
62. Merely because, PW1 has deposed that his mother along with Sri Reddappa and Sri Jinendra Jain, had with them a sum of Rs.35,00,000/- and they advanced the said amount to this accused and his children, it does not become automatic that they had the sufficient source of income and they had the capacity to advance the said amount even without any documentary evidence before this court. The arguments canvassed by the learned Counsel for the Complainant, is not convinced this court and it cannot be acceptable.
63. Per contra, the learned Counsel for the accused has vehemently argued that the Sale Agreement has not been proved by the Complainant and till this day the competent Civil Court has not proved the execution of the Sale Agreement along with the contents of the Sale Agreement. He has argued that the entire nature of the case is of a civil transaction and this court without proving the execution of 34 CC No.24704/2012 the Sale Agreement as well as the Memorandum of Understanding Deed, cannot be held the accused guilty for the offence.
64. He has argued that the accused has not only denied the execution of the Sale Agreement but, he has categorically denied the very execution of the Memorandum of Understanding Deed. He has argued that the entire nature of the case is a civil transaction and this court without proving the execution of Sale Agreement and Memorandum of Understanding, cannot held the accused guilty for the offence. The arguments canvassed by the learned Counsel for the accused, is fully convinced this court. Likewise, his arguments that there was no burden on this accused to prove his defence beyond all reasonable doubts and this accused can very well discharge his burden by preponderance of probabilities and even by cross-examining PW1 and this accused has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act by cross-examining PW1, is fully convinced this court.
65. In view of the judgment reported in 2008 (4) KLJ 240 between Q - Soft System and Solution Pvt. Ltd., Bangalore Vs. H.N. Giridhar wherein it is held that;
"when it is a purely matter of civil transaction, which the Civil Court has to adjudicate and ascertain as to whether there is a breach of contract or there is any violation of conditions of the agreement and whether the very conduct of the Complainant is without any blemish, in a separate enquiry to be held if need be. When the cheque is dishonoured for non-payment and the accused has come out with a probable defence, then the presumption is rebutted and the accused cannot be held responsible and the 35 CC No.24704/2012 Complainant cannot be proceed against the accused u/Sec.138 of N.I. Act. The jurisdiction is purely a civil transaction which the Civil Court has to adjudicate and ascertain whether there is a breach of contract or violation of the conditions of the agreement."
In view of the law laid down in this judgement, the Complainant ought to have approach the Civil Court to prove the execution of Sale Agreement as well as the Memorandum of Understanding. Unless the document is proved, this court has no jurisdiction to give any finding on the said documents.
66. Admittedly, there is no burden on this Accused to prove his defence beyond all reasonable doubts. The Accused can very well discharge his burden by preponderance of probabilities and he has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act by adducing oral and documentary evidence before this court.
67. The oral and documentary evidence adduced before this court by this complainant, is not sufficient to bring home the guilt of the Accused beyond all reasonable doubt. The entire burden on this complainant to bring home the guilt of the accused beyond all reasonable doubt to the satisfaction of the court. Unless the complainant is discharge his burden, the burden will not shift on this accused to rebut the presumptions available to this complainant u/Sec. 139 of N.I Act. In such situation, the benefit of doubt goes in favour of this accused. Hence, by taking into consideration the facts 36 CC No.24704/2012 and circumstances and evidence available on record, I answer Point No.1 in the Negative.
68. Point No.2: In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (1) of Cr.P.C., the accused is hereby acquitted for the offence punishable u/Sec.138 of N.I. Act.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 1st day of September, 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bengaluru.
ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. Ashok R. Jain
Witnesses examined on behalf of the Accused:
D.W.1 Mr. M. Vajramurthy.
Documents marked on behalf of the Complainant:
Ex.P.1 Special Power of Attorney
Ex.P.2 Cheque
Ex.P.2(a) Signature of the Accused
Ex.P.3 Bank endorsement
Ex.P.4 Copy of Legal Notice
Ex.P.4(a) Postal Receipt
Ex.P.5 Postal Acknowledgement Due Card
Ex.P.6 Courier Receipt
Ex.P.7 Certified Copy of Agreement of Sale
Documents marked on behalf of the Accused:
NIL
XIX ACMM, B'lore.