Bangalore District Court
Sri. Nageswara Rao vs Sri. K.R. Lohith on 24 April, 2024
1
C.C.No.34221/2018
KABC030943882018
Presented on : 27-12-2018
Registered on : 27-12-2018
Decided on : 24-04-2024
Duration : 5 years, 3 months, 28 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 24th day of April 2024
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.NoCC.No.34221/2018
:
Complainant : Sri.Nageswara Rao
S/o Late.S.M.Rao
Aged about years
Having at Office No.1,
Vyasasraja Math Building,
Gandhi Bazaar, Basavanagudi
Bangalore - 560004.
(By Sri.Srinivas A.R., Adv,)
V/s
Accused : Sri.K.R.Lohith
S/o Sri.Ramesh
R/at No.38/5, Ranga Rao Road,
Shankarapuram,
Bengaluru - 560004.
Also at
2
C.C.No.34221/2018
No.83, 2nd Floor,
Model House Street,
Bengaluru - 560004.
(By Sri.Jaysham.J., Adv.,)
Case instituted : 20.10.2018
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 24.04.2024
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the Complainant is as under:-
The complainant and the accused are the family friends and known to each other since few years. The accused was undergoing a severe financial constraint in the month of August 2015. Hence, the accused has approached the complainant at his office for a loan of Rs.10 lakhs to meet certain commitments, to clear the debts and to meet family expenses. During the said period, the wife of complainant namely Smt.Umarani 3 C.C.No.34221/2018 was holding a sum of Rs.11 lakhs in her bank account. Therefore, taking pity on the condition of the accused and longstanding relationship, the complainant has requested his wife Smt.Umarani to lend the loan through her account. Accordingly, the wife of the complainant Smt.Umarani has issued a cheque bearing No.105481 for Rs.10 lakhs, drawn on The Bavasara Kshathriya Co-operative Bank Ltd., Basavanagudi Branch, Bengaluru. The cheque was encashed by the accused on 06.10.2015 and received a sum of Rs.10 lakhs as an interest free loan. The accused has promised to repay the loan. But, the accused has been avoided to meet the complainant or his wife Smt.Umarani to make the payment. However, the accused has approached the complainant and his wife in the last week of June 2018 on the pretext of repayment of loan amount. On the instructions of the wife of the complainant, the accused has issued a cheque bearing No.732158 dated 08.08.2018 for Rs.9,99,000/-, drawn on The State Bank of India, Vishveshwarapuram Branch, Bengaluru in favour of the complainant for discharge of loan.
3. It is further averred in the complaint that the complainant has presented the cheque for encashment before The Bavasara Kshathriya Co-operative Bank Ltd., Basavanagudi Branch, Bengaluru on 08.08.2018. But 4 C.C.No.34221/2018 the cheque was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 09.08.2018. The complainant has received the bank endorsement on 10.08.2018. Therefore, the complainant got issued a legal notice on 06.09.2018 calling upon the accused to pay the cheque amount within 15 days from the date of service of legal notice. The legal notice was served on the accused. But, in spite of service of legal notice, the accused has failed to pay the cheque amount within time, but issued a reply notice and thereby committed an offence punishable U/s.138 of NI Act. Therefore, the complainant has presented the complaint before the court on 20.10.2018.
4. After presentation of complaint, it was ordered to be registered as PCR No.14116/2018 vide order dated 20.10.2018.
5. The sworn statement of the complainant has been recorded and the documents were got marked as per Ex.P.1 to P.9.
6. My Learned Predecessor in office having heard the arguments of the learned counsel for the complainant and having satisfied with the complaint averments, sworn statement of the complainant and the documents at Ex.P.1 to P.9 and having satisfied with the 5 C.C.No.34221/2018 prima facie materials placed on record has taken the cognizance for the offence punishable U/s.138 of N.I.Act and the case was ordered to be registered as CC.No.34221/2018 and the process was ordered to be issued against the accused vide order dated 10.12.2018.
7. On service of summons, the accused has appeared before the court through his learned counsel and obtained the bail by depositing cash surety of Rs.10,000/- vide Q.No.1067/2019 dt:20.04.2019. Copies of all the prosecution papers were supplied to accused.
8. The Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded on 20.04.2019 and the substance of accusation has been read over and explained to accused in the language known to him. The accused has pleaded not guilty, but claims to be tried.
9. In order to establish the guilt against the accused, the complainant got himself examined as PW-1 and got the documents marked as Ex.P.1 to P.9. PW.1 was subjected for cross examination by the learned counsel for the accused.
10. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been 6 C.C.No.34221/2018 recorded vide dated 15.12.2021 and the incriminating evidence as such forthcoming against the accused in the evidence of complainant and the documents has been read over and explained to the accused in the language known to him. But the accused has denied the evidence of complainant and the documents. The accused did choose to enter the defence evidence.
11. In order to substantiate his defence, the accused got himself examined as DW.1 and got the documents marked as per Ex.D.1 to D4. DW.1 was subjected for cross examination by the learned counsel for the complainant.
12. I have heard the arguments of learned counsel for both the side. The learned counsel for accused has filed memo with citation. In the light of the arguments canvassed by the learned counsel for both side, I have carefully perused the oral and the documentary evidence placed on record and also gone through the principles laid down in the cited decision.
13. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued a cheque bearing No.732158 dated 08.08.2018 for Rs.9,99,000/-, drawn on 7 C.C.No.34221/2018 the State Bank of India, Vishweshwarapuram Branch, Bengaluru in his favour towards the legally recoverable debt of Rs.9,99,000/- and on presentation of cheque for encashment before The Bavasara Kshathriya Co-operative Bank Ltd., Basavanagudi Branch, Bengaluru on 08.08.2018, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 09.08.2018 and in spite of issuance of legal notice dt:06.09.2018 and in spite of service of legal notice, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act?
2. What Order?
14. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under :
[ Point No.1: In the Negative Point No.2: As per final order for the following :-
REASONS
15. Point No.1 : The provisions of Sec.20 of Negotiable Instrument Act deals about Inchoate Stamped Instruments. As per this provisions of law, where one person signs and delivers to another a paper stamped in accorance with the law relating to negotiable 8 C.C.No.34221/2018 instrements then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima-facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, or any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instruemnt, in the capacity in which he signed the same, to any holder in due course for such amount.
16. The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transfered, was accepted, indorsed, negotiated or transferred for considertaion: (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accpted within a reasonable time after its date and before its maturity. (d) as to time of transfer-that every transfer of a negotiable instrument was made before the 9 C.C.No.34221/2018 maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course. [
17. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or inpart, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other proviosn of this Act, be punished with imprisonment for a term which may be extended to two 10 C.C.No.34221/2018 years or with fine which may extend to twice the amount of the cheque or with both.
18. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing , to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
[ 19. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles the contrary is proved, that the holder of a cheque received the cheque of the nature referred to 11 C.C.No.34221/2018 in section 138 for the discharge, in whole or in part, or any debt or other liability.
20. The provisions of Section 146 of the Negotiable Instruments Act, 1881 deals about the Bank's slip prima facie evidence of certain facts. As per this provisions of law, the Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved.
21. Now keeping the above said provisions of Section 20, 118, 138, 139 and 146 of N.I.Act, in mind, let us consider as to whether the complainant could able to comply the mandates, ingredients, terms and conditions of Section 138 of N.I.Act, so as to draw the presumptions in her favour as per Section 118 and 139 of N.I.Act.
22. It is averred in the complaint and stated by PW.1 in his oral evidence that he and the accused are the family friends and known to each other since few years and the accused was undergoing a severe financial constraint in the month of August 2015 and hence, the accused has approached him at his office for a loan of 12 C.C.No.34221/2018 Rs.10 lakhs to meet certain commitments, to clear the debts and to meet family expenses and during the said period, his wife namely Smt.Umarani was holding a sum of Rs.11 lakhs in her bank account and therefore, taking pity on the condition of the accused and longstanding relationship, he has requested his wife Smt.Umarani to lend the loan through her account and accordingly, his wife Smt.Umarani has issued a cheque bearing No.105481 for Rs.10 lakhs, drawn on The Bavasara Kshathriya Co-operative Bank Ltd., Basavanagudi Branch, Bengaluru and the cheque was encashed by the accused on 06.10.2015 and received a sum of Rs.10 lakhs as an interest free loan and the accused has promised to repay the loan, but, the accused has been avoided to meet him or his wife Smt.Umarani to make the payment, however, the accused has approached him and his wife in the last week of June 2018 on the pretext of repayment of loan amount and on the instructions of his wife, the accused has issued a cheque bearing No.732158 dated 08.08.2018 for Rs.9,99,000/-, drawn on The State Bank of India, Vishveshwarapuram Branch, Bengaluru in his favour for discharge of loan.
23. It is further averred in the complaint and stated by PW.1 in his oral evidence that he has presented the cheque for encashment before The 13 C.C.No.34221/2018 Bavasara Kshathriya Co-operative Bank Ltd., Basavanagudi Branch, Bengaluru on 08.08.2018, but the cheque was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dated 09.08.2018 and he has received the bank endorsement on 10.08.2018 and therefore, he got issued a legal notice on 06.09.2018 calling upon the accused to pay the cheque amount within 15 days from the date of service of legal notice and the notice was served on the accused, but, in spite of service of legal notice, the accused has failed to pay the cheque amount within time, but issued a reply notice and therefore, the complainant has presented the complaint before the court on 20.10.2018.
24. The complainant has produced the cheque dated 08.08.2018, bank endorsement dated 09.08.2018, legal notice dated 06.09.2018, 2 postal receipts dated 06.09.2018, 2 postal acknowledgements dated 07.09.2018, reply notice dated 04.09.2018 and complaint and they are marked at Ex.P1 to P9.
25. The accused has not seriously disputed the fact that the cheque vide Ex.P1 dated 08.08.2018 is belongs to him and he has drawn the cheque on an account maintained by him with his banker namely 14 C.C.No.34221/2018 State Bank of India, Vishweshwerapuram Branch, Bengaluru and his signature on the cheque vide Ex.P1(a). The accused has also not seriously disputed about the presentation of cheque for encashment before the Bhavasara Kshatriya Co-operative bank ltd., Basavanagudi Branch, Bengaluru within its validity and the dishonour of cheque for want of sufficient funds in his account vide bank endorsement at Ex.P2 dated 09.08.2018 and the issuance of legal notice vide Ex.P3 dated 06.09.2018 and the service of legal notice dated 07.09.2018 as per the postal acknowledgments vide Ex.P6 & P7 and the issuance of reply notice vide Ex.P8.
26. In fact, there are no material suggestions to PW.1 either to deny the cheque vide Ex.P1 or to deny the signature of the accused on the cheque as per Ex.P1(a) or to deny the presentation of cheque for encashment before the bank within its validity or to deny the dishonour of cheque for want of sufficient funds in the account of the accused vide bank endorsement at Ex.P2 dated 09.08.2018 or to deny the issuance of legal notice vide Ex.P3 dated 06.09.2018 or to deny the service of legal notice as per Ex.P6 & P7 dated 07.09.2018.
27. But on the other hand, it is suggested to PW.1 that when the accused had issued the cheque on 15 C.C.No.34221/2018 06.10.2015 shown to him as per Ex.P1, it was blank cheque and he has filled the contents of cheque except the signature of the accused. Be that as it may, DW.1 in his entire evidence has not seriously disputed either the cheque vide Ex.P1 or his signature on the cheque as per Ex.P1(a) or the presentation of cheque for encashment before the bank within its validity or the dishonour of cheque for want of sufficient funds in his account vide Ex.P2 dated 09.08.2018 or the issaunce of legal notice vide Ex.P3 dated 06.09.2018 or the service of legal notice as per Ex.P6 & P7 dated 07.09.2018.
28. But, on the other hand, DW.1 has stated in his evidence that he has handed over a signed cheque bearing No.732158 without filling the details of the cheque. Be that as it may, DW.1 in his cross- examination has admitted that the cheque vide Ex.P1 is belongs to him and the signature found on Ex.P1 is as that of his signature and he has received a phone message after dishonour of cheque and the complainant has issued a legal notice calling upon to pay the cheque amount and he has issued a reply notice vide Ex.P8.
29. From these materials placed on record including the material suggestions put to PW.1 and material admissions given by DW.1, it is crystal clear 16 C.C.No.34221/2018 that the accused by necessary implications has admitted the fact that the cheque vide Ex.P1 is belongs to him and he has drawn the cheque on an account maintained by him with his banker namely State Bank of India, Vishweshwerapuram Branch, Bengaluru and on presentation of cheque for encashment before the Bhavasara Kshatriya Co-operative Bank, Basavanagudi Branch, Bengaluru within its validity, it was dishonoured for want of sufficient funds in his account vide bank endorsement at Ex.P2 dated 09.08.2018 and the issuance of legal notice vide Ex.P3 dated 06.09.2018 including the address mentioned on the notice and the service of legal notice as per Ex.P6 & P7 dated 07.09.2018. Under these circumstances, it is said that the admissions are the best proof for the complainant to comply the mandates of Sec.138 of NI Act.
30. However, on careful perusal of complaint averments, oral evidence of PW.1 and the documentary evidence at Ex.P1 to P9, it clearly establishes that the cheque vide Ex.P1 is belongs to the accused and the signature on the cheque vide Ex.P1(a) is as that of the signature of the accused. The materials placed on record also establishes that on presentation of cheque for encashment before the bank within its validity, it was dishonoured for want of sufficient funds in the account 17 C.C.No.34221/2018 of the accused vide bank endorsement at Ex.P2 dated 09.08.2018.
31. The materials placed on record further establishes that the complainant got issued a legal notice vide Ex.P3 dated 06.09.2018 giving 15 days time to the accused to comply the demands made in the notice. The notice was served on the accused on 07.09.2018 as per Ex.P6 & P7. But, in spite of service of legal notice as per Ex.P6 & P7 dated 07.09.2018, the accused has failed to pay the cheque amount within time and therefore, the complainant has presented the complaint before the court on 20.10.2018.
32. It is pertinent to note here that the cheque vide Ex.P1 is dated 08.08.2018. As could be seen from the document at Ex.P2 that on presentation of cheque, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement at Ex.P2 dated 09.08.2018. So, it is crystal clear that the complainant has presented the cheque before the bank for encashment within its validity.
33. As could be seen from the documents at Ex.P3 to P5, the complainant got issued a legal notice dated 06.09.2018 within the stipulated period of time from the date of receipt of bank endorsement giving 15 days time 18 C.C.No.34221/2018 to the accused to comply the demands made in the notice. As could be seen from the documents at Ex.P6 & P7, the notice has been served on the accused on 07.09.2018. But, in spite of service of legal notice, the accused has failed to pay the cheque amount within time and therefore, the complainant has presented the complaint before the court on 20.10.2018 which was well within time.
34. So, it is crystal clear that the complainant has complied the mandates of Sec.138 of NI Act by adducing the oral evidence of PW.1 and also by producing the documentary evidence at Ex.P1 to P9. Under these circumstances, when once the complainant has complied the mandates of Sec.138 of NI Act and when once the accused has admitted the cheque and his signature on the cheque including the dishonour of cheque and the service of legal notice, then this court has no option, but to draw the presumptions in favour of the complainant available under the provisions of Sec.118 and 139 of NI Act.
35. Admittedly, the presumptions available in favour of the complainant under the provisions of Sec.118 and 139 are not the conclusive proof, but they are rebuttable in nature. Therefore, when once the 19 C.C.No.34221/2018 complainant has fulfilled the mandates of Sec.138 of N.I. Act and when once the court has drawn the presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act, then, the onus shifts on the accused to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
36. The learned counsel for the complainant has argued with force that the complainant has complied all the mandates of Sec.138 of NI Act with oral evidence of PW.1 and the documentary evidence at Ex.P1 to P9 which clearly establishes that the accused has approached the complainant for a loan of Rs.10 lakhs for family expenses and the wife of complainant was having an amount of Rs.11 lakhs in her bank and therefore, considering the condition of the accused and longstanding relationship, the complainant has requested his wife to lend the loan and therefore, the wife of the complainant has lent a loan of Rs.10 lakhs to the accused by way of cheque bearing No.105481 which was encashed by the accused on 06.10.2015 and in repayment of the loan, the accused has issued a cheque in favour of the complainant for repayment of loan of Rs.10,00,000/- on the instructions of the wife of complainant and the cheque was dishonoured for want 20 C.C.No.34221/2018 of sufficient funds in the account of the accused and therefore, the complainant got issued a legal notice which was served on the accused, but in spite of service of legal notice, the accused has failed to pay the cheque amount and therefore, the complainant has presented the complaint before the court within time.
37. It is further contended by the learned counsel for the complainant that the accused neither disputed the cheque nor his signature on the cheque or the presentation of cheque for encashment before the bank within its validity or the dishonour of cheque for want of sufficient funds in his account or the issuance of legal notice or the address mentioned on the notice or the service of legal notice and the oral evidence of PW.1 is very much consistent and in confirmity with documentary evidence at Ex.P1 to P9 and therefore, the presumptions are available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
38. It is further contended by the learned counsel for the complainant that the accused has taken a defence and contention that the complainant was introduced to him by Umesh Bhat who represented him that he would have to lend a signed cheque for the purpose of obtaining the loan and the said Umesh Bhat 21 C.C.No.34221/2018 had assured him that no liability would flow to him through the said cheque and it was only for the purpose of representing to his money lender that he is due to receive a payment and therefore, he was conviced and hence, he has handed over a signed blank cheque bearing No.732158 without filling the contents of the cheque to Umesh Bhat on 06.10.2015 and he and Umesh Bhat met the complainant on 06.10.2015 and Umesh Bhat showed the cheque to complainant and received an amount of Rs.10 lakhs from the wife of complainant by way of open cheque and thereafter, the said Umesh Bhat and the complainant conspired together and the said Umesh Bhat presented the cheque bearing No.105881 and encashed the amount of Rs.10 lakhs which was in his name and he has requested Umesh Bhat to return the cheque bearing No.732158, but the said Umesh Bhat has failed to return the cheque and the complainant has received the cheque in question from Umesh Bhat without his consent and presented the cheque after lapse of 3 years and filed the false case, but there is no legally enforceable debt between him and the complainant or the wife of complainant and he has not received any loan from the complainant or his wife and therefore, he is not liable to pay any cheque amount to the complainant or the wife 22 C.C.No.34221/2018 of the complainant. But the said contentions has not been proved by the accused before the court in any manner and the accused neither examined any independent witnesses nor elicited anything in the evidence of PW.1 and thereby the accused has failed to rebut the statutory presumptions available in favour of the complainant.
39. It is further contended by the learned counsel for the complainant that the accused neither lodged any complaint against the complainant for misuse of cheque nor issued stop payment instructions or examined any independent witnesses before the court or produced any documents to substantiate his defence or to falsify the case made out by the complainant or issued any notice to get back the blank cheque from the complainant or Umesh Bhat or lodged any complaint against the complainant for obtaining the cheque from Umesh Bhat and thereby failed to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act and nothing is elicited in the evidence of PW.1 as to how and in what manner the complainant has created and concocted the documents and misused of cheque and the accused has also failed to comply the mandates of Section 65-B of the Evidence Act and thereby failed to substantiate his 23 C.C.No.34221/2018 probable defence and in view of the accused failed to rebut the statutory presumptions, the accused is liable for conviction U/Sec.138 of NI Act.
40. In support of his submission, the learned counsel for the complainant has relied upon a decision reported in (2019) 4 SCC 197 in between Beer Singh V/s Mukesh Kumar, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that Sec.139 of NI Act raises presumption of law that cheque duly drawn was in discharge of debt or liability. However, presumption is rebuttable and ouns lies on drawer to rebut it by adducing cogent evidence to the contrary. This presumption is not in conflict with human right of presumption of innocence of accused which prosecution is required to dislodge by proving its case against accused beyond reasonable doubt.
41. The learned counsel for the complainant has also relied upon a decision reported in (2021) 5 SCC 283 in between Kalamani Tex and another Vs.P.Balasubramaniyan, wherein while dealing with the provisions of Section 118, 138 and 139 of N.I.Act, the Hon'ble Supreme Court has pleased to held that once the accused had admitted his signature on the 24 C.C.No.34221/2018 cheque, the court has to presume that cheque was issued as consideration for legally enforceable debt. These 'reverse onus' clauses become operative. Obligation shifts upon accused to discharge presumption imposed upon him.
42. The learned counsel for the complainant has also relied upon a decision reported in AIR 2001 SC 2895 in between K.N.Beena V/s Muniyappan and another, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that in view of the provisions contained in Sec.118 and 139, the court has to presume that the cheque had been issued for discharge of debt or liability. However, the said presumption could be rebutted by the accused by proving the contrary. Mere denial or rebuttal by accused in the reply to the legal notice sent by the complainant not enough. Accused had to prove by cogent evidence that there was no debt or liability.
43. The learned counsel for the complainant has also relied upon a decision reported in AIR 2001 SC 3897 in between Hiten.P. Dalal V/s Bratindranath Banerjee, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that it is obligatory on the court to 25 C.C.No.34221/2018 presume the liability of the drawer for the amount of the cheque in every case where the factual basis for such presumption is established. Such a presumption can be rebutted by the drawer by proving on evidence that the holder of the cheque had not received the same towards the discharge of any liability. Mere plausible explanation is not sufficient. Proof of explanation is necessary.
44. The learned counsel for the complainant has also relied upon a decision reported in (2014) 10 SCC 473 in between Anvar P.V V/s P.K.Basheer and others, wherein while dealing with the provisions of Sec.65-A and 65-B of Indian Evidence Act, 1872, the Hon'ble Supreme Court has pleased to held that U/Sec.65-B (4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissable provided that there must be a certificate which should identify the electronic record containing the statement; the certificate must discribe the manner in which the electoronic was produced; the certificate must furnish the particulars of the device involved in the production of that record; the certificate must deal with the applicable conditions mentioned U/Sec.65-B(2) of the Evidence Act; and the certificate must be signed by a person occupuing a 26 C.C.No.34221/2018 responsible official position in relation to the operation of the relavant device.
45. Per contra, the learned counsel for the accused has vehemently contended that the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P9 do not establish the existence of loan transaction of Rs.10,00,000/- either between the complainant and the accused or between the accused and the wife of complainant and the existence of legally recoverable debt of Rs.9,99,000/- between the complainant and the accused or the accused and the wife of complainant and the issuance of cheque by the accused to the complainant towards the legally recoverable debt of Rs.9,99,000/- and also do not establish the loan transaction between the complainant and the accused and thereby the complainant has failed to prove the loan transaction and the issuance of cheque towards the legally recoverable debt of Rs.9,99,000/-.
46. It is further contended by the learned counsel for the accused that the accused has raised a probable defence and proved the same before the court with oral evidence of DW.1 and by producing the documentary evidence at Ex.D1 to D4 and also by eliciting the material facts in the cross-examination of PW.1 which 27 C.C.No.34221/2018 clearly establishes that the complainant was introduced to accused by one Mr.Umesh Bhat who represented the accused that he would have to lend a signed cheque for the purpose of obtaining the loan and the said Umesh Bhat had assured the accused that no liability would flow to accused through the said cheque and it was only for the purpose of representing to his money lender that he is due to receive a payment and therefore, the accused was convinced and hence, the accused has handed over a signed blank cheque bearing No.732158 without filling the contents of the cheque to said Umesh Bhat on 06.10.2015 and the accused and the said Umesh Bhat met the complainant on 06.10.2015 and Mr.Umesh Bhat showed the cheque to complainant and received an amount of Rs.10 lakhs from the wife of complainant by way of open cheque and thereafter, the said Umesh Bhat and the complainant conspired together and the said Umesh Bhat presented the cheque bearing No.105881 and encashed the amount of Rs.10 lakhs which was in the name of accused and the accused has requested said Umesh Bhat to return the cheque bearing No.732158, but the said Umesh Bhat failed to return the cheque and the complainant has received the cheque in question from said Umesh Bhat without the consent of accused and presented the 28 C.C.No.34221/2018 cheque after lapse of 3 years and filed the false case, but there was no legally enforceable debt either between the accused and the complainant or the wife of complainant and the accused has not received any loan from the complainant or his wife and therefore, the accused is not liable to pay any cheque amount to the complainant or the wife of the complainant and the complainant has misused the cheque by filing false complaint for wrongful gain and there are contradiction between the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P9 produced before the court with respect to the loan transaction between the complainant and the accused and the existence of legally recoverable debt between the complainant and the accused which has been substantiated with documents at Ex.D1 to D4 which clearly establishes the conversation between the accused and the complainant and the complainant has not come to court with clean hands and supressed the material facts before the court, but PW.1 has admitted that he has not lent any loan to the accused and his wife has lent the loan to Umesh Bhat and the complainant has not explained before the court about the inconsistencies found in the evidence placed on record and the complainant has misused the cheque which was issued in favour of Umesh Bhat and the accused has 29 C.C.No.34221/2018 also complied the mandates of Section 65-B of the Evidence Act and thereby the accused has rebutted the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act and hence, the accused is entitled to an order of acquittal.
47. In support of his submission, the learned counsel for the accused has relied upon a decision reported in (2019) 5 SCC 418 in between Basalingappa V/s Mudibasappa, wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that the prosecution must establish its case beyond reasonable doubt, but the accused to prove a defence must only meet the standard of prepondrance of probabilities. Inference of prepondrance of probailities can be drawn not only from the materials brought on record by the parties, but also by reference to the circumstances upon which accused relies.
48. Now, keeping the arguments canvassed by the learned counsel for both the side and the principles laid down in the cited decision in mind, let us consider as to whether the accused could able to raise a probable defence and whether the accused could able to prove the 30 C.C.No.34221/2018 same before the court with legal evidence and whether the accused could able to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
49. It is the evidence of DW.1 that the complainant was introduced to him by Umesh Bhat who represented him that he would have to lend a signed cheque for the purpose of obtaining the loan and said Umesh Bhat had assured him that no liability would flow to him through the said cheque and it was only for the purpose of representing to his money lender that he is due to receive a payment and therefore, he was convinced and hence, he has handed over a signed blank cheque bearing No.732158 without filling the contents of the cheque to Umesh Bhat on 06.10.2015 and he and Umesh Bhat met the complainant on 06.10.2015 and Umesh Bhat showed the cheque to complainant and received an amount of Rs.10 lakhs from the wife of complainant by way of open cheque and thereafter, the said Umesh Bhat and the complainant conspired together and the said Umesh Bhat presented the cheque bearing No.105881 and encashed the amount of Rs.10 lakhs which was in his name and he has requested Umesh Bhat to return the cheque bearing No.732158, but the said Umesh Bhat failed to return the 31 C.C.No.34221/2018 cheque and the complainant has received the cheque in question from Umesh Bhat without his consent and presented the cheque after lapse of 3 years and filed the false case, but there was no legally enforceable debt between him and the complainant or the wife of complainant and he has not received any loan from the complainant or his wife and therefore, he is not liable to pay any cheque amount to the complainant or the wife of the complainant
50. The accused has produced a phone call list, Certificates U/Sec.65-B of Indian Evidence Act, 1872, Pendrive and they are marked at Ex.D1 to D4.
51. It is suggested to DW.1 that he has approached the complainant in the month of October 2015 and sought for an urgent loan of Rs.10 lakhs; that the wife of the complainant namely Smt.Umarani has issued an open cheque dated 06.10.2015 for Rs.10 lakhs in his name; that in repayment of the said loan of Rs.10 lakhs, he has issued the cheque in dispute vide Ex.P1 in favour of the complainant; that he was due for Rs.10 lakhs towards the complainant; that the complainant has issued the cheque which was belongs to his wife Smt.Umarani in his favour; that he has not stated about the disputed transaction in the audio; that he has edited 32 C.C.No.34221/2018 the audio recordings; that though he has withdrawn an amount of Rs.10 lakhs from the account of wife of the complainant, he is deposing false evidence.
52. But all these material suggestions have been specifically denied by DW.1. Therefore, it is said that the denied suggestions are always remained as suggestions only and not come in the way of complainant either to substantiate his case or to falsify the probable defence taken by the accused or to falsify the oral evidence of DW.1 or to falsify the documentary evidence at Ex.D1 to Ex.D4.
53. The complainant all the while in his notice vide Ex.P3, in his complaint vide Ex.P9 and in his affidavit in chief-examination has stated that he and the accused are the family friends known to each other. But, during the course of his cross-examination, PW.1 has stated and admitted that he came in contact with accused about 4 to 5 years back in the year 2015 through Umesh Bhat only who known to him since 14 to 15 years who is also his good friend. PW.1 has also admitted that except through Umesh Bhat, the accused was not known to him through anybody. So, from these evidence placed on record, it is crystal clear that the accused was not directly known to the complainant, but the accused was 33 C.C.No.34221/2018 introduced to the complainant by Umesh Bhat who is the good friend of the complainant. Under these circumstances, the case of the complainant that he and the accused are the family frined known to each other for past several years is highly doubtful.
54. Further, the complainant in his notice vide Ex.P3, in his complaint vide Ex.P9 and in his affidavit in chief-examination has stated that during October 2015, the accused has approached him in his office for a loan of Rs.10 lakhs. But, the notice vide Ex.P3, complaint vide Ex.P9 and the affidavit in chief-examination of PW.1 do not indicate or establish as to the exact date on which the accused has approached the complainant for a loan of Rs.10 lakhs for family necessities. If really, the accused was in dire need of loan for family expenses and if really the accused had approached the complainant for a loan of Rs.10 lakhs for family expenses, then the complainant could have definately disclose the exact date on which the accused has approached him for a loan of Rs.10 lakhs for family expenses. But, the complainant has not done so. No explanation as such forthcoming either in the notice vide Ex.P3 or in the complaint vide Ex.P9 or in the affidavit in chief- examination of PW.1. In the absence of such an explanation, the case of the complainant that the 34 C.C.No.34221/2018 accused has approached him for a loan of Rs.10 lakhs for family expenses is highly doubtful and therefore, cannot be accepted.
55. The complainant in his notice vide Ex.P3, in his complaint vide Ex.P9 and in his affidavit in chief- examination has stated that when the accused had approached him in the month of October 2015 for a loan of Rs.10 lakhs, his wife Smt.Umarani was having a sum of Rs.11 lakhs in her bank account and therefore, he has requested his wife to lend a loan through her account and therefore, she has issued a cheque bearing No.105481 for Rs.10 lakhs which was encashed by the accused on 06.10.2015 and thus, the accused has received a sum of Rs.10 lakhs from his wife.
56. So, from these averments made in the notice vide Ex.P3, complaint vide Ex.P9 and the affidavit in chief-examination of PW.1, it is crystal clear that there was no loan transaction of Rs.10 lakhs between the complainant and the accused at any point of time and the complainant has not at all paid any loan of Rs.10 lakhs to the accused either by way of cheque or by way of cash or by way of any mode and it is who the wife of the complainant stated to have lent a loan of Rs.10 lakhs by way of cheque bearing No.105481 through 35 C.C.No.34221/2018 open cheque and not through an account payee cheque. PW.1 in his evidece before the court on oath has not disputed these facts. But, on the other hand, PW.1 categorically and unambiguiously has stated and admitted that the cheque bearing No.105481 was belongs to his wife Smt.Umarani who issued the said open cheque on 06.05.2015 and it was not crossed cheque and since he had not been to bank, he do not know as to what was happened in the bank. It is also admitted by PW.1 in his cross-examination that he has not personally lent any loan to the accused at any point of time. It is also admitted by PW.1 that his wife has issued an open cheque bearing No.105481 dated 06.10.2015 to Umesh Bhat and the loan obtained by Umesh Bhat has not been fully cleared and the said Umesh Bhat is still due for Rs.60,000/- to Rs.70,000/-. Infact, PW.1 has feigned his ignorance as to the exact date on which the accused has encashed the cheque amount and even according to PW.1 and it is also admitted by PW.1 that anybody can encashed the open cheque amount.
57. From these evidence placed on record and more particularly the categorical admissions made by PW.1 in his cross-examination, it is crystal clear that there was absolutely no loan transaction between the 36 C.C.No.34221/2018 complainant and the accused at any point of time in any manner. But, the loan transaction of Rs.10 lakhs through an open cheque bearing No.105481 was in between the wife of the complainant Smt.Umadevi and Umesh Bhat. There are full of contradictions between the oral evidence and the documentary evidence palced on record with respect to the direct loan transaction between the complainant and the accused and the existence of the legally recoverable debt of Rs.10 lakhs from the accused and the issuance of the cheque in question by the accused to the complainant. In order to clarify all these inconsistencies and also glaring discrepancies found in the oral and the documentary evidence placed on record, the evidence of Umesh Bhat and Smt. Umarani is material evidence before the court. But, the complainant has stated in his evidence that there was no impediment for him to adduce the evidence of Umesh Bhat, but he has not cited Umesh Bhat as witness in the list of witnesses and has not examined before the court. No explanation as such forthcoming in the materials placed on record for non examination of material witnesses. In the absence of such an explanation, an adverse inference has to be drawn against the case made out by the complainant for withholding the material witnesses being examined 37 C.C.No.34221/2018 before the court as contemplated under the provisions of Sec.114g of Indian Evidence Act, 1872.
58. It is pertinent to note here that the accused has produced a phone call list, pendrive and Certificates U/Sec.65-B of Indian Evidence Act, 1872 and they are marked at Ex.D1 to D4. It is necessary to note here that the complainant has not seriously disputed about the phone conversation between him and the accused as shown in the phone call list vide Ex.D1 and as found in the pendrive vide Ex.D3. But, on the other hand, PW.1 has admitted that his mobile number is 9019301300 and there was a phone conversation between him and the accused vide dated 07.09.2022 and he has called upon the accused for a compromise by paying meger amount and he has also admitted about the voice record found in pendrive vide Ex.D3 and therefore, the document at Ex.D1 was marked through the evidence of DW.1. If really the complainant has paid alleged loan of Rs.10 lakhs to the accused by way of cheque or by way of cash or by way of any mode, then there must be some reference in the document at Ex.D3 with respect to actual payment of loan of Rs.10 lakhs by the complainant to the accused and the issuance of the cheque in question towards the legally recoverable debt of Rs.10 lakhs. But, there is no reference with respect to 38 C.C.No.34221/2018 the direct loan transaction of Rs.10 lakhs between the complainant and the accused. Under these circumstances, the very documents at Ex.D1 to D4 probablize the defence taken by the accused, but falsify the very case made out by the complainant including the oral evidnece of PW.1 and the documentary evidence at Ex.P1 to P9.
59. It is pertinent to note here that at one point of time, the complainant has stated in his notice, complaint and the affidavit in chief-examination that he and the accused are the family friends and known to each other for past few years. But, at another point of time, PW.1 has stated in his evidence that he came in contact with accused only through Umesh Bhat who has not been examined before the court. Further, at one point of time, the complainant in his notice, in his complaint and in his affidavit in chief-examination has stated that the accused has approached him in the month of October 2015 for family expenses. But, at another point of time, the complainant has stated that his wife has paid an amount of Rs.10 lakhs by way of cheque. But, at another point of time, PW.1 has stated in his evidence that the cheque bearing No.105481 was belongs to his wife who has not been examined before the court. But, at another point of time, PW.1 has stated 39 C.C.No.34221/2018 in his evidence that his wife has issued the cheque bearing No.105481 dated 06.10.2015 in favour of Umesh Bhat and not in favour of accused. But, the complainant has not examined either his wife Smt.Umarani or his friend Umesh Bhat before the court to clarify all these inconsistencies found in the evidence on record.
60. Further, at one point of time, the complainant has stated that the accused is due for a loan of Rs.10 lakhs. But, at another point of time, PW.1 has stated in his evidence that the disputed cheque is issued for Rs.9,99,000/-. But, at another point of time, PW.1 has stated in his evidence that he has not at all lent any loan to the accused in his individual capacity and his wife has not at all authorized him to receive the cheque in question from the accused. But, at another point of time, PW.1 has stated in his evidence that when the cheque was issued on 06.10.2015, it was blank cheque and his manager has filled the cheque who has not been examined before the court. But, at another point of time, PW.1 has stated in his evidence that Umesh Bhat has not fully paid the amount, but he is still due for Rs.60,000/- to Rs.70,000/-.
61. So, from these evidence of PW.1, it is crystal clear that the complainant has kept on changing his 40 C.C.No.34221/2018 version from stage to stage and also from time to time and thereby laid on the material facts before the court with respect to the alleged transaction between him and the accused and the existence of legally recoverable debt of Rs.9,99,000/- and also the issuance of cheque in question for legally recoverable debt of Rs.9,99,000/- and thereby suppressed the material facts before the court. All these inconsistencies and glaring discrepancies found in the oral and the documentary evidence placed on record would leads to an adverse inference and creates a doubt about the alleged existence of the loan transaction of Rs.10 lakhs as on the date of the cheque and the issuance of cheque to the complainant towards the legally recoverable debt of Rs.9,99,000/-.
62. No doubt, as rightly pointed out by the learned counsel for the complainant and no doubt, it is also true that the document at Ex.P1 being a cheque raises the presumption U/Sec.139 of NI Act. The document at Ex.P2 being a bank memo also raises the presumption U/Sec.146 of NI Act. The documents at Ex.P3 to P8 being the legal notice, postal receipts, postal acknowledgments and reply notice clearly establishes the service of the legal notice. But, it is well settled postion of law that the presumptions attached to the 41 C.C.No.34221/2018 documents at Ex.P1 & P2 are not the conclusive proof, but they are rebuttable in nature. The accused has raised a probable defence and adduced the oral evidence of DW.1 and produced the documentary evidence at Ex.D1 to D4 and also elicited the material facts in the cross-examination of PW.1 which creates a dobut about the loan transaction between the complainant and the accused and passing of loan of Rs.10 lakhs from the hands of the complainant to the hands of accused including the existence of legally recoverable debt of Rs.9,99,000/- and the issuance of cheque in question towards the legally recoverable debt of Rs.9,99,000/- and creates a doubt about the case made out by the complainant, but probablize the defence taken by the accused and falsify the case made out by the complainant.
63. On appreciation of entire oral and the documentary evidence placed on record, it is found that the oral evidence of PW.1 is not consistent and also not inconfirmity with the case made out by the complainant including the documents at Ex.P1 to P9. The documents placed on record do not indicate or establish that the complainant has paid a loan of Rs.10 lakhs to the accused at any point of time. There are full of contradictions between the oral evidence of PW.1 and 42 C.C.No.34221/2018 the documentary evidence at Ex.P1 to P9 with respect to the alleged passing of loan to the acucsed. The oral and the documentary evidence adduced and produced by the complainant also do not indicate or establish that there was an existence of legally recoverable debt of Rs.9,99,000/- and therefore, the accused had issued the cheque in question to the complainant towards the legally recoverable debt of Rs.9,99,000/-.
64. As could be seen from the cheque vide Ex.P1, the signature and the contents of the cheque including the handwriting of name, amount in words and figures and the signature are in the different handwriting and also in the different ink colours. The complainant has not disputed these inconsistencies and discrepancies found in Ex.P1. Infact, PW.1 has stated in his evidence that when the cheque was issued on 06.10.2015, it was blank and his manager has filled the cheque in question. The complainant has not produced any documents before the court to show that he had paid an amount of Rs.10 lakhs to the accused at any point of time. Under these circumstances, the defence taken by the accused that he has not availed any loan either from the complainant or from the wife of the complainant, but it is who Umesh Bhat has received the loan from the wife of the complainant and he has issued the cheque in 43 C.C.No.34221/2018 question to said Umesh Bhat who has handed over the same to the complainant and in turn the complainant has filled the cheque and misused the cheque is seems to be more probable than that of the case made out by the complainant.
65. From the oral and the documentary evidence adduced and produced before the court by the complainant, it is not shown by the complainant as to how and in what manner an amount of Rs.9,99,000/- was due as on 08.08.2018 payable by the accused. The complainant has not stated as to the exact date on which the accused alleged to have approached him for a loan of Rs.10 lakhs. But, on the other hand, the complainant has stated that the accused has approached him in the month of October 2015. The alleged lending of loan of Rs.10 lakhs through cheque was on 06.10.2015. The alleged date of cheque is 08.08.2018 and the amount of the cheque is Rs.9,99,000/-. There was a gap of more than 2 years 10 months between the date of approach for loan and the date of cheque and the issuance of cheque in question.
66. As already stated above, the signature and the contents of the cheque including the name, amount in words and figures and the signature and the date are in 44 C.C.No.34221/2018 different handwriting and also in different ink colours. It is forthcoming in the evidence on record that when the cheque was issued on 06.10.2015, it was blank and the manager of the complainant has filled the cheque. There was no direct loan transaction between the complainant and the accused at any point of time. As admitted by PW.1 in his evidence that the loan obtained by Umesh Bhat has not been fully paid and he is still due for Rs.60,000/- to Rs.70,000/-. PW.1 has admitted that his wife has not at all authorized him to receive the cheque in question from the accused. It is also forthcoming in the evidnece of PW.1 that his wife has issued an open blank cheque bearing No.105481 in favour of Umesh Bhat and not in favour of the accused. Therefore, the complainant ought to have established by producing the relevant documents that the amount mentioned in the cheque was actually due as on the date of issuance of cheque on 08.08.2018 and towards the said legally recoverable debt, the accused had issued a cheque vide Ex.P1. But the complainant neither produced any relevant documentary proof nor adduced any evidence of independent witnesses at least his wife Smt.Umarani or his friend Umesh Bhat before the court either to prove the alleged loan transaction of Rs.10 lakhs betwen him and the accused or to clarify the inconsistencies found 45 C.C.No.34221/2018 in the evidence placed on record and the existence of legally recoverable debt of Rs.9,99,000/- and the issuance of the cheque in question towards the legally recoverable debt of Rs.9,99,000/-. In the absence of such materials placed on record, it cannot be said that there was an existence of legally recoverable debt of Rs.9,99,000/- and the accused has issued the cheque in question towards the said legally recoverable debt of Rs.9,99,000/-.
67. Therefore, the arguments of the learned counsel for the complainant that the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P9 clearly establishes the loan transaction of Rs.10 lakhs between the accused and the wife of complainant and the issuance of cheque in question towards the legally recoverable debt of Rs.9,99,000/-, but the accused has not disputed the cheque and his signature on the cheque including the presentation of cheque for encashment and the dishonour of cheque for want of sufficient funds in his account and the service of legal notice, but the accused has failed to issue the stop payment instructions to the concerned bank and failed to take action against the complainant and the oral evidence of DW.1 and the documentary evidence at Ex.D1 to D4 do not establish that the accused has 46 C.C.No.34221/2018 issued the cheque in question to Umesh Bhat who handed over same to the complainant and the complainant has misused the cheque and the accused has not proved the documents at Ex.D1 to D4 and not complied the mandates of Sec.65-B of Indian Evidence Act and thereby the accused has failed to raise a probable defence and failed to prove the same before the court and thereby the accused has failed to rebut the statutory presumptions and therefore, the accused is liable for conviction U/Sec.138 of NI Act is not sustainable under law and therefore, cannot be accepted and the decisions cited in this regard are also not applicable to the present facts and circumstances of the case.
68. But, on the other hand, there is some legal and cosniderable force in the submission of the learned counsel for the accused that the oral evidence of PW.1 and the documentary evidence at Ex.P1 to P9 do not establish the alleged loan transaction of Rs.10 lakhs between the complainant and the accusesd and the existence of the legally recoverable debt of Rs.9,99,000/- and the issuance of the cheque in question towards the legally recoverable debt of Rs.9,99,000/-, but the accused has raised a probable defence and proved the same before the court with oral evidence of DW.1 and by 47 C.C.No.34221/2018 producing the documentary evidence at Ex.D1 to D4 and also by eliciting the material facts in the evidence of PW.1 which clearly establishes that the accused had not taken any loan either from the complainant or from his wife and also not issued the cheque in queston to the complainant for the legally recoverable debt, but the accused had issued the cheque in question to Umesh Bhat who has handed over the same to the complainant at the time of availing the loan of Rs.10 lakhs from the wife of complainant and it is who the said Umesh Bhat has encashed the cheque amount of Rs.10 lakhs, but the complainant has failed to return the cheque and thereafter, the complainant has filled the cheque and filed the case against the accused and the accused has complied the mandates of Sec.65-B Indian Evidnece Act and the accused has also rebutted the presumptions U/Sec.118 and 139 of NI Act and therefore, the accused is entitled to an order of acquittal and the decision cited in this regard is also applicable to the present facts and circumstances of the case.
69. Therefore, for the reasons discussed above, this Court is of the considered view that materials placed on record do not establish the guilt against the accused for the offence punishable U/Sec.138 of N.I.Act. Hence, I hold that the complainant has failed to prove the guilt 48 C.C.No.34221/2018 against the accused for the offence punishable U/s.138 of N.I.Act. Hence, I answer point No.1 in the Negative.
70. Point No.2: In view of my findings on point No.1, I proceed to pass the following:-
ORD ER The accused is found not guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, 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 bonds of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
The cash surety amount of Rs.10,000/- deposited by the accused vide Q.No.1067/2019 dated 20.04.2019 shall be refunded to the accused after the appeal period is over.
(Dictated to the stenographer directly on computer, typed by her, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 24th April 2024).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.49
C.C.No.34221/2018 ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.Nageswara Rao
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 : Original Cheque. Ex.P.1(a) : Signature of the Accused. Ex.P.2 : Bank Memo. Ex.P.3 : Copy of Legal Notice. Ex.P.4 & 5 : Postal Receipts. Ex.P.6 & 7 : Postal Acknowledgments. Ex.P.8 : Reply Notice Ex.P.9 : Compliant.
3. List of witness/s examined on behalf of the Accused:-
D.W.1 : Sri.K.R.Lohith
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : Phone Call List. Ex.D.2 : Certificate U/Sec.65-B of Indian Evidence Act, 1872. Ex.D.3 : Pendrive. Ex.D.4 : Certificate U/Sec.65-B of Indian Evidence Act, 1872. (N.M.RAMESHA) XVI ACMM, Bengaluru City. 50 C.C.No.34221/2018 24.4.2024 Judgment pronounced in open court, (vide separate order) ORDER The accused is found not guilty for the offence punishable U/s.138 of Negotiable Instruments Act. Hence, 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 bonds of the accused
shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
The cash surety amount of Rs.10,000/- deposited by the accused vide Q.No.1067/2019 dated 20.04.2019 shall be refunded to the accused after the appeal period is over.
[ XVI ACMM, Bengaluru City