Bangalore District Court
Ramaswamy.R.N vs Umashankar.R on 5 February, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 5th day of February - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.25128/2016
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Ramaswamy.R.N,
S/o.Nachimuthu Chettiar,
Aged about 71 years,
R/at No.16, Seetharama Nilaya,
6th Cross, Pipeline Road,
Vijayanagar, Bengaluru-23.
(Rep. by Sri.V.Seenappa, Adv.)
V/S
Accused : Umashankar.R,
Aged about 45 years,
No.19, Masti Market,
2nd Floor, C.T.Street,
(Chowdeshwari Temple Street),
Bengaluru-02
And also at:
No.17, 1st Floor, 22nd Main,
2nd Cross, Rizwan Masjid Road,
Vinayaka Temple Road,
5th Phase, J.P.Nagar,
Bengaluru-78.
(Rep.by Sri.Anjaneya.A.B, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.25128/2016
FINAL ORDER : Accused is Affirmative.
DATE OF ORDER : 05.02.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 01.08.2016 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.2,80,000/-.
2. Earlier on account of accused not cross-examined the PW.1, convicted the accused on 02.04.2018. The accused has challenged the said judgment by preferring the criminal appeal No.673/2018, wherein, the judgment of this court came to be set- aside and remanded the matter for fresh disposal by giving necessary opportunity to the accused to cross-examine the PW.1 and to lead his evidence. Accordingly, the said direction is complied by this court and taken the matter for judgment after giving sufficient opportunities to both side.
3. In nut shall, the case of the complainant is: Judgment 3 C.C.25128/2016
The complainant has averred that, the accused is well known to the complainant and approached him during December, 2015 and borrowed hand loan of Rs.2,80,000/- by way of cash for his urgent domestic commitments and undertakes to repay the same within six months.
The complainant has further alleged that, after completion of six months, the complainant approached the accused for repayment of the hand loan, then he got issued cheque bearing No.089503 dated: 23.06.2016 for Rs.2,80,000/- drawn on Union Bank of India, C.T.Street Branch, Bengaluru-02, in favour of complainant.
The complainant has further contended that, as per the instruction of accused, he presented the said cheque for encashment through his banker viz., Vijaya Bank, Vijayanagar Branch, Bengaluru, on seeing the endorsement dated:27.06.2016, he got utter shock and surprise as said cheque came to be dishonoured for the reasons "Funds Insufficient". Thereafter, complainant gave legal notice on 04.07.2016, the same issued to the accused to both the addresses, but both are returned stating 'Not Claimed". The accused neither paid the amount covered under the cheque nor issued any reply. Thereby, he committed Judgment 4 C.C.25128/2016 the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
4. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
5. In response to the summons, the accused appeared through his counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
6. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P18. The PW.1 was subjected for cross-examination by the advocate for the accused.
7. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D1 to D14. Though, the Judgment 5 C.C.25128/2016 DW.1 tendered for cross-examination, but the advocate for complainant not cross-examined the DW.1.
8. I have heard the arguments of accused counsel. The complainant counsel not addressed his side arguments.
9. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.2,80,000/- as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.089503, dated:23.06.2016 for sum of Rs.2,80,000/- drawn on Union Bank of India, Chowdeshwari Temple Street, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
10. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:Judgment 6 C.C.25128/2016
REASONS
11. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P18, they are:
a) Ex.P1 is the cheque bearing No.089503 issued by the accused for sum of Rs.2,80,000/-
dated:23.06.2016, drawn on Union Bank of India, Chowdeshwari Temple Street, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:27.06.2016.
d) Ex.P3 is the Legal Notice dated:04.07.2016
e) Exs.P4 and P5 is the Postal receipts.
f) Exs.P6 and P7 are the not claimed R.P.A.D covers.
g) Exs.P6(a) and P7(a) are the legal notice at Ex.P6 and P7.
h) Exs.P8 and P9 are the Postal Acknowledgment Cards.
i) Ex.P10 is the private complaint.
j) Ex.P10(a) is the signature of complainant.
k) Ex.P11 is the loan granted letter dated:30.12.2016 pertaining to complainant herein issued by Muthoot Finance and
l) Exs.P12 to P18 are cash receipts issued by Muthoot Finance Ltd.
Judgment 7 C.C.25128/2016The PW.1 was subjected to the cross-examination by the advocate for the accused.
12. In order to prove the defence of the accused, he himself choosen examined as DW.1 and produced the documents at Exs.D1 to D14. They are:
a) Exs.D1 to D12 are the cash bill/receipt pertaining to the accused issued by Sree Lakshmi Vilas, Modern Café, M/s. Murali and Company, Besant Road, Governorpet, Vijayawada.
b) Ex.D13 is the certified copy of judgment in C.C.No.7131/2016 on the file of Hon'ble XIII ACMM, Bengaluru and
c) Ex.D14 is the certified copy of deposition of PW.1 in C.C.No.7131/2016.
13. Though, the DW.1 tendered for cross-examination, but the advocate for complainant not cross-examined the DW.1, thereby, the evidence of DW.1 is unchallenged.
14. The advocate for accused in detail the cross-examine the PW.1 on two occasions. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and claimed that, no notice is served on him and he not borrowed any loan from the complainant and not issued the questioned cheque for payment of any liability and complainant Judgment 8 C.C.25128/2016 got misused his cheque kept in his shop by way of fling the instant case.
15. The apart, the accused himself choosen to entered into the witness box and examined orally as DW.1. Wherein, he on oath specifically deposed that, complainant knew the accused, but he not borrowed loan of Rs.2,80,000/- from the complainant nor issued questioned cheque for payment of any amount. The accused has specifically put forth his contention that, about 5 years back, he borrowed sum of Rs.1 lakh from the son of complainant by name Jayakumar on the security of singed blank cheque. Within 2 months, from the date of borrowal of said loan, he got cleared the said loan to Jayakumar, but he not returned the questioned cheque and accused not taken back the said cheque, as on account of his business, he is wandering in and around. The accused sustained loss in his business from January, 2016 till September, 2016, he left the address at Bengaluru and stayed at Vijayawada, as his customer have to pay amount to the accused and for recover the same, he stayed there. Though, accused not issued questioned cheque to the complainant and not in Bengaluru, complainant got misused the cheque given to his son by name Jayakumar and projected this case, as given to the complainant. Hence, he is not liable to pay the cheque amount, Judgment 9 C.C.25128/2016 even, the complainant is not in financial condition to pay the said loan. The accused is in Vijayawada, the legal notice is not served on him. As the accused stayed at Vijayawada during the period specified supra, he produced hotel bills at Exs.D1 to D12. So also produced the judgment and deposition of complainant herein, in connection to C.C.No.7131/2016, it also got marked at Exs.D13 and D14. Despite, advocate for complainant took time for cross- examination, the complainant counsel till the fag end, not choosen to cross-examine the DW.1, thereby, met the probable defence of the accused coupled with documentary evidence at Ex.D1 to D14 unchallenged.
16. No doubt, it is as per Sections 118 and 139 of Negotiable Instruments Act, the initial statutory presumption has o be drawn in favour of complainant that, for discharge of existence of legally recoverable debt, the accused got issued the questioned cheque, unless and until contrary prove. To prove the probable defence of the accused, apart from he cross-examine the PW.1, he himself choosen to entered into witness box and produced the documents at Exs.D1 to D14.
17. It is significant fact to note that, earlier on account of non- co-operation from the side of accused made the evidence of PW.1 Judgment 10 C.C.25128/2016 unchallenged, hence, this court pronounce the judgment on 02.04.2018 and convicted the accused. The very said judgment was challenged by the accused herein by preferring Criminal Appeal in No.673/2018 and got remand this matter to conduct trial by way of cross-examining the PW.1 and record 313 of Cr.P.C. statement. Accordingly, the matter taken up for fresh disposal. Thereafter, as stated earlier, the accused on two occasions in detail cross-examine the PW.1. That apart, 313 of Cr.P.C. statement was also recorded and even the accused entered into the witness box and deposed orally got marked Exs.D1 to D14.
18. At this juncture, it is very significant fact to note that, whatever the probable defence placed by the accused, which attack on the claim of complainant, though the advocate for complainant for reason better known to him, not choosen to cross- examine the DW.1. Thereby, the evidence of DW.1 as well as genuineness of the documentary evidence at Exs.D1 to D14 unchallenged. Thereby, at the outset the accused is in successfully proved his probable defence, therefore, the complainant by accepting the same not choosen to questioned its genuineness and not choosen to cross-examine the DW.1. Therefore, it is the accused has successfully proved that, he had not financial transaction with complainant, but it was with his son Judgment 11 C.C.25128/2016 Jayakumar, that too, to an extent of Rs.1 lakhs only obtained on the security of signed blank cheque. Despite, the accused got cleared the said loan within 2 months, complainant son without return the said cheque, when accused stayed at Vijayawada for recover the dues from his customer during January, 2016 till September, 2016, by making use of the cheque given to his son projected presenting the cheque got dishonoured and alleged to be issued legal notice and which got returned stating 'unclaimed' and filed the false case. The documentary evidence produced by the accused, which clearly manifest that, the loan sum of Rs.1 lakh only borrowed from son of complainant by name Jayakumar on the guarantee of signed blank cheque. The said factum remains undisputed. The said cheque also alleged to be misused by the complainant is also bares undisputed. The fact that, during the period January, 2016 till September, 2016, accused was at Vijayawada is also remained unchallenged. The genuineness of document at Exs.D1 to D12, which discloses, the stay of accused at Vijayawada is also not in dispute.
19. That apart, the documents at Ex.D13, furnished by the accused, which is none other than certified copy of judgment in C.C.No.7131/2016, filed by complainant against Aruldass. The said case came to be acquitted. The finance made therein is also Judgment 12 C.C.25128/2016 remains unchallenged. That apart, the accused also produced the affidavit evidence and cross-examination deposition of the PW.1 led in the said cheque. The same also remains unchallenged. However, the unchallenged evidence of DW.1 coupled with documentary evidence relied by him, it made clear there are so many grounds to accept the probable defence of the accused, which attack on the claim of complainant. Therefore, it is the consider opinion of this court that, the accused has successfully rebutted the statutory presumption as well as the actual transaction alleged to be held between complainant and accused, as alleged in the complaint. Therefore, it was the reverse burden as per Section 139 of Negotiable Instruments Act, on the complainant to prove his very case and guilt of the accused beyond the reasonable doubt.
It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".Judgment 13 C.C.25128/2016
In the decision reported in ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:
(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -
Something probable has to be brought record - Burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - Thereafter the said presumption arising under Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural even human conduct and public and private business) - Evidence Act, 1872 - Section 114 - Presumptions of fact under".
In the decision of AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally Judgment 14 C.C.25128/2016 necessary to know how the complainant advanced such a huge amount".
20. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused.
21. On going through the complaint allegations, it discloses, complainant is the aged about 71 years and accused is aged about 45 years. The complainant though complainant, accused approached him during December, 2015 sought for loan of Rs.2,80,000/- and he claimed that, he paid the said money in cash for the purpose of domestic and urgent commitment. The very complaint does not discloses, exactly when accused was approached him, what was the inevitable circumstances made him to approach to need the said huge amount and being a senior citizen, how the complainant had mobilized the fund and actually on which date, on whose presence, on which security document, he paid the such huge amount of Rs.2,80,000/- is not been explained. However, he subjected for corroborative, which discloses, his background and financial capacity, which runs thus:
"£Á£ÀÄ PÀ¼ÉzÀ 25 ªÀµÀðUÀ¼À »AzÉ ¥ÁvÉæ ªÁå¥ÁgÀ ªÀiÁqÀÄwÛzÉÝ£ÀÄ. FUÀ AiÀiÁªÀÅzÉà PÉ®¸À ªÀiÁqÀÄwÛ®è. £Á£ÀÄ 10 £Éà vÀgÀUÀw ªÁå¸ÀAUÀ Judgment 15 C.C.25128/2016 ªÀiÁrzÉÝãÉ. £À£ÀUÉ £Á®ÄÌ d£À ªÀÄPÀ̼ÀÄ. £À£Àß £Á®Ì£Éà ªÀÄUÀ dAiÀÄPÀĪÀiÁgÀ, DgÉÆæ DvÀ£À ¸ÉßûvÀ JAzÀgÉ ¸Àj. wAUÀ½UÉ £À£ÀUÉ gÀÆ.1,000/- DzÁAiÀÄ«zÉ. £À£Àß RaðUÉ £À£Àß ªÀÄPÀ̼Éà ºÀtªÀ£ÀÄß ¤ÃqÀÄvÁÛgÉ. £Á£ÀÄ ¥ÀæwAiÉÆAzÀÄ RaðUÀÆ ªÀÄPÀ̼À£Éßà CªÀ®A©¹zÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. 2015 gÀ°è £À£ÀUÉ gÀÆ.1,000/- ¢AzÀ gÀÆ.2,000/- DzÁAiÀÄ EvÀÄÛ. £Á£ÀÄ ¨ÁrUÉ ªÀÄ£ÉAiÀÄ°è ªÁ¸À«zÉÝÃ£É JAzÀgÉ ¸Àj. CzÀgÀ ªÀiÁ¹PÀ ¨ÁrUÉ gÀÆ.10,000/-. £Á£ÀÄ £À£Àß DzÁAiÀÄ ºÉÆgÀvÀÄ ¥Àr¹ G½zÀ ªÉÆvÀÛªÀ£ÀÄß £À£Àß ªÀÄPÀ̽AzÀ ¥ÀqÉzÀÄ ¨ÁrUÉ ¥ÁªÀw¸À¨ÉÃPÀÄ JAzÀgÉ ¸Àj. £À£Àß ªÀÄPÀ̼ÀÄ £À£ÀߣÀÄß DyðPÀªÁV CªÀ®A©¹®è. £À£ÀUÉ ªÀµÀðPÉÌ 2015 gÀ°è gÀÆ.30,000/- ¸Á«gÀQÌAvÀ ºÉaÑ£À ªÁ¶ðPÀ DzÁAiÀÄ«gÀ°®è JAzÀgÉ, DUÀ £Á£ÀÄ ¹ÃgÉ ªÁå¥ÁgÀ ªÀiÁqÀÄwÛzÉÝ£ÀÄ, DUÀ ºÉaÑ£À DzÁAiÀÄ«vÀÄÛ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. £Á£ÀÄ AiÀiÁªÀÅzÉà CAUÀrAiÀÄ°è ªÁå¥ÁgÀ ªÀiÁqÀÄwÛ®è ºÁUÀÆ ªÁå¥ÁgÀPÉÌ ºÉ¸ÀgÀ£ÀÄß ElÄÖPÉÆAr®è JAzÀgÉ ¸Àj."
22. The PW.1 in his cross-examination clearly deposed that, prior to 25 years, he did utensils business and admittedly, now not doing any kind of business. He is not an uneducated, but as per his say, he studied up to 10th standard. Admittedly, the complainant had a son by name Jayakumar, who is none other than friend of accused is also not in dispute. It is significant fact to note that, the complainant clearly admitted that, he had only Rs.1000/- income per month and for his expenses would born by Judgment 16 C.C.25128/2016 his children. He denied the suggestion that, for heavy expenses, he relied upon his children.
23. In the above said piece of cross-examination of PW.1, he stated, during the year 2015, he had monthly income of Rs.1,000/- to Rs.2,000/-. Moreover, he specified that, he was resided in rented house, by paying monthly rent at Rs.10,000/-. Except his income, for other expenses admittedly, he received money from his children and pay the rentals. He clearly admitted that, his children are not relied upon the financial assistance of the complainant. The PW.1 though earlier occasion stated, now he not doing any business, but at the fag end of the above said evidence, it discloses, he claimed to did saree business during 2015 and by that time, he had income, he also stated that, he is not doing the said saree business in the any shop or having any business name. Therefore, the above said evidence clearly discloses, the complainant is financially incapability and he is relied upon his children for the monetary assistance.
24. In this case, the accused has challenged the financial capacity and suggested, the complainant had no income to lent the alleged loan to the accused. But in the cross-examination of Judgment 17 C.C.25128/2016 PW.1, he deposed, how he mobilized the fund. The relevant portion which runs thus:
"£À£ÀUÉ ªÀÄ£ÉAiÀÄ RaðUÉ gÀÆ.10,000/- ¨ÉÃPÁUÀÄvÀÛzÉ. r¸ÉA§gï 2015 gÀ°è £À£Àß §½ gÀÆ.80,000/- £ÀUÀzÀÄ E¢ÝzÀÄÝ, G½zÀ gÀÆ.2 ®PÀëªÀ£ÀÄß £À£Àß MqÀªÉUÀ¼À£ÀÄß ªÀÄÄvÀÆÛmï ¥sÉÊ£Á£ïì£À°è r¸ÉA§gï 2015 gÀ°è CqÀ«lÄÖ ¸Á® ¥ÀqÉ¢zÉÝãÉ. D ¸ÀA§AzÀs £À£Àß §½ zÁR¯É EzÉ. D «µÀAiÀĪÀ£ÀÄß F ¥ÀæPÀgÀtzÀ°è F ªÉÆzÀ®Ä w½¹®è JAzÀgÉ ¸Àj."
25. The PW.1 has deposed that, he need Rs.10,000/- p.m. for his house hold expenses. He stated that, during December, 2015, he had Rs.80,000/- and remaining amount of Rs.2 lakhs were arranged by way of pledged his gold ornaments in Muthoot Finance and obtained loan and to that extent, he had document and no impediment to produce the same. Accordingly, produced the document, subsequently, at Exs.P11 to P18. On going through the Ex.P11, it discloses the date:30.12.2015. On the said date, complainant borrowed the loan of Rs.2 lakhs on interest. The said document discloses, the complainant borrowed the loan on 30.12.2015. The print taken at 10.48 am on the said date, therefore, the said loan document discloses, the complainant himself borrowed the loan. In order to show that, the complainant Judgment 18 C.C.25128/2016 borrowed the said loan and paid to the accused, he not taken any such contention earlier.
26. The accused during the course of cross-examination has suggested that, the said loan obtained for the purpose of doing the business or meet out emergent medical expenses only, not given the loan. The PW.1 has suggested that, when the accused son playing, got injured to his eyes and for taken treatment in the Mallige Hospital, he took the said loan. For taking such small treatment, was it require the huge amount of Rs,2,80,000/- from the complainant, that made the complainant took pain to pledge his gold ornaments to the Muthoot Finance and borrowed the loan for the sake of accused, itself created doubt and the same is not been cleared by the complainant. In the event of the complainant not challenged the evidence of DW.1 and his documentary evidence, the reason assigned by the complainant is also not safe to rely upon. The accused has not disputed the borrowing of said loan, but stated that, by gave false reason obtained the loan and same was used by the complainant for doing the money lending business. But specifically suggested that, though he borrowed such amount on the said date, as on the alleged date payment made to the accused, complainant had no financial capacity to lent the huge amount of Rs.2,80,000/-. Therefore, it is the Judgment 19 C.C.25128/2016 complainant has to demonstrate that, by borrowing the said loan from Muthoot Finance and paid to the accused, it requires to prove by the complainant. Though, he stated, he gave the said loan to the accused, he not specified, on which date, on whose presence, on which guarantee he paid money to the accused itself created doubt. When in the last 2 days of ending of money of December, 2015, the complainant got obtained the pledge loan, then when he paid the said money to the accused is also not been satisfactorily explained. The Exs.P12 to P18 are the cash receipts paid by the complainant to the loan of Muthoot Finance, it does not discloses, the dates, as to the same were given to the accused etc. Thereafter, the complainant has utterly failed to discloses, by pledging his gold ornaments as found in Ex.P11 mobilized the fund and made it as to Rs.2,80,000/- and given to the accused is not been proved. But in his cross-examination has clearly admitted that:
"¢£ÁAPÀ 01.04.2015 jAzÀ 31.12.2015 gÀ CªÀ¢üAiÀÄ°è gÀÆ.80,000/- QÌAvÀ ºÉaÑ£À ªÉÆvÀÛ £À£Àß°è EgÀ°®è JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ ¸ÀévÀB ªÀÄÄAzÀĪÀgÉzÀÄ CzÀQÌAvÀ gÀÆ.10,000/- jAzÀ gÀÆ.20,000/- ºÉaÑ£À E¢ÝgÀ§ºÀÄzÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."Judgment 20 C.C.25128/2016
27. The PW.1 admitted that, from 01.04.2015 till 31.12.2015, he clearly admitted that, he had only Rs.80,000/- and no more money was with him, but he volunteers that, Rs.10,000/- to Rs.20,000/- more then Rs.80,000/- was with him on the said day. It discloses, the complainant had no financial capacity to pay the huge amount of Rs.2,80,000/- as on the alleged period. The accused successfully proved that, the complainant had no financial source to pay the said huge amount.
28. The complainant has stated that, he lent loan to the accused for the period of six months, as he not paid, when he approached then accused gave questioned cheque dated:23.06.2016. Therefore, it made clear that, for the period of six months, accused not paid the hand loan. If at all, complainant by pledge his gold ornaments borrowed the loan as per Ex.P12, was there any chance of relent the loan without interest itself created doubt. During the course of cross of PW.1, he deposed that, the questioned cheque when issued by the accused to him, as per his own words that:
"¤¦.1 gÀ ZÉPï £ÉÃgÀªÁV £À£ÀUÉ §A¢zÀÝ®è, CzÀÄ dAiÀÄPÀĪÀiÁgï gÀªÀgÀ §½ EvÀÄÛ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëAiÀÄÄ £ÉÃgÀªÁV £À£Àß §½ §A¢zÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. DgÉÆæ ¢£ÁAPÀ 23.06.2016 gÀAzÉà Judgment 21 C.C.25128/2016 ¢£ÁAPÀªÀ£ÀÄß £ÀªÀÄÆ¢¹, CzÉà ¢£À £À£ÀUÉ ZÉPÀÌ£ÀÄß PÉÆnÖzÀÝgÀÄ. d£ÀªÀj 2016 jAzÀ ¸É¥ÉÖA§gï 2016 gÀªÀgÉUÉ DgÉÆæ ¨ÉAUÀ¼ÀÆj£À°è EgÀ°®è, D ZÉPÀÌ£ÀÄß DvÀ £À£ÀUÉ PÉÆnÖgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è. ¢£ÁAPÀ 23.06.2016 gÀªÀgÉUÉ DgÉÆæ gÀÆ.2,80,000/- £À£ÀUÉ ¤ÃqÀ®Ä ¨ÁzÀså£ÁVgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è."
29. The accused has specifically stated that, the questioned cheque was not directly given by the accused to the complainant, but it was given to the son of complainant by name Jayakumar is been denied by the PW.1, but PW.1 has deposed that, the questioned cheque issued by the accused directly to the complainant on 23.06.2016 by mentioning the said date given to him. The accused has suggested that, on the said date, the accused was not in Bengaluru and he was not issued the same and no liability to pay the said money to the complainant. In order to show that, as on the said date of cheque 23.06.2016 alleged to be issued on the very same day to the complainant as per the document produced by the accused as per Ex.D5, the receipt issued by Sri Lakshmi Vilas Modern Café, boarding authority. Which discloses, the accused came to Vijayawada on 18.03.2016 and stayed there till 25.03.2016. Therefore, the said document made clear that, as on the alleged date of issued cheque on 23.06.2016, the accused was at Vijayawada, by paying huge Judgment 22 C.C.25128/2016 amount to the lodge, how it is possible to came from Vijayawada to Bengaluru and gave cheque to the complainant is not been explained by the complainant. The Ex.D5 document clearly attack on the claim of complainant, as to alleged issuance of cheque. When accused was at Vijayawada on the said day, he came down to Bengaluru and issued questioned cheque, itself is created doubt. Therefore, it made clear that, the cheque is not issued by the accused to the complainant directly, as he was not in Bengaluru, but as disclosed in Ex.D5 he was at Vijayawada.
30. That apart, the legal notice issued by the complainant at Ex.P3 by way of R.P.A.D as per Exs.P7 and P9, which came to be returned unclaimed. It is pertinent to note that, back side the R.P.A.D covers mentioned the date:05.07.2016 and 06.07.2016 by mentioning that, accused absent intimation dropped, hence, endorsed as not claimed. In order to drop the intimation, it require to intimated the accused, but on the said period 05.07.2016 and 06.07.2016, as found in Ex.D10, the lodge receipt, wherein, the accused stayed at Vijayawada from 05.07.2016 and 06.07.2016. When he stayed there on the said day, the endorsement dropped to the accused is also highly unbelievable. Therefore, the said document is vital document discloses, for making unclaimed endorsement in the legal notice, there is no valid grounds, as the Judgment 23 C.C.25128/2016 accused was stayed at Vijayawada, at that time, the legal notice brought to the address at Bengaluru and he refuse the receive the same is not genuine entry, therefore, it is not safe rely upon.
31. However, as discussed above, the complainant has utterly failed to prove his case, beyond the reasonable doubt. The non- cross-examination of DW.1, in view of serious allegation made against the complainant got misuse of cheque given by the accused to the son of complainant, the complainant not able to prove his case nor cross-examine the DW.1. Therefore, the probable defence set out by the accused holds good and he is able to destroy the entire case of the complainant. Hence, it is the consider opinion of this court that, complainant got misused the cheque obtained through his son and filed the present case, hence, the amount made mentioned in the cheque is not the existence of legally recoverable debt. The complainant has utterly failed to discharge the reverse burden. Hence, the accused is entitled for benefit of doubt for acquittal.
32. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has Judgment 24 C.C.25128/2016 humbly gone through the decision relied by both parties apart from the following decisions.
In the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
"Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
33. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheque bares his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to Judgment 25 C.C.25128/2016 complainant under S. 118 and S. 139 of Act - Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
34. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.2,80,000/- to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".Judgment 26 C.C.25128/2016
35. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, he is not liable to pay Ex.P1 cheque amount of Rs.2,80,000/- and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and he is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken his defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.2,80,000/-. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Apart from that, in a decision reported in, KCCR 12 (3) page 2057, the Hon'ble Apex Court held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued Judgment 27 C.C.25128/2016 towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
36. In the case on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show his financial capacity to lend an amount of Rs.2,80,000/- to accused. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheque for discharge of Rs.2,80,000/- does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.2,80,000/-. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
37. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Ex.P1 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
Judgment 28 C.C.25128/2016
38. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
39. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.2,80,000/- legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of Judgment 29 C.C.25128/2016 the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his case beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
40. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 5th day of February - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 30 C.C.25128/2016
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Ramaswamy.R.N List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Exs.P4 & P5 : Postal receipts Exs.P6 & P7 : Not claimed R.P.A.D covers Exs.P6(a) & P7(a) : Legal notice at Exs.P6 and P7 Ex.P8 & P9 : Postal Acknowledgment Cards Ex.P10 : Private complaint Ex.P10(a) : Signature of complainant Ex.P11 : Loan granted letter Exs.P12 to P18 : Cash receipts
List of Witnesses examined on behalf of the defence:
DW.1 : Umashankar List of Exhibits marked on behalf of defence:
Exs.D1 to D12 : Cash bills/receipts
Ex.D13 : CC of judgment in CC No.7131/2016
Ex.D14 : CC of deposition of PW.1 in CC No.7131/16
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 31 C.C.25128/2016
05.02.2020
Case called out.
The complainant is absent. Accused is
present. Respective counsels of the
complainant and accused are present.
The advocate for complainant filed
application under Section 311 of Cr.P.C.
seeking for reopen the stage for cross of DW.1.
The advocate for accused is orally opposed on the said application.
On perusal of the case records, it discloses, today i.e., on 05.02.2020, the complainant counsel by filing the application under Section 311 of Cr.P.C., seeking for recall the order dated:04.12.2019 by permitting the complainant to cross-examine DW.1.
Judgment is ready for pronouncement.
Now, the complainant counsel has brought the application under Section 311 of Cr.P.C. and stated that, on the last date of hearing, the complainant could not gave instructions for cross-examine the DW.1, hence, he could not come and cross-examine the DW.1. As such, this court was taken the cross of DW.1 as nil and posted the matter for arguments; hence, he brought the present application to recall the DW.1 for cross-examination.
Judgment 32 C.C.25128/2016Looking into the stage and nature, as already judgment is prepared and reserved for pronounce the same, entertaining the instant application at this stage, the complainant has not made out any valid grounds. Hence, the very application filed by the complainant under Section 311 of Cr.P.C. for recall the order dated:04.12.2019 by permitting the complainant to cross-
examine the DW.1 is hereby rejected.
As, the matter is already set for judgment and judgment is ready. Hence, the following judgment is pronounced.
XXIII ACMM, Bengaluru.
Again case called out.
The complainant and accused are
present. Both side counsels are also
present.
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 33 C.C.25128/2016
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 34 C.C.25128/2016IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY Dated this the 2nd day of April - 2018 PRESENT: SRI. SHRIDHARA.M, B.A., LL.M., XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.25128/2016 JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Ramaswamy.R.N,
S/o.Nachimuthu Chettiar,
Aged about 71 years,
R/at No.16, Seetharama Nilaya,
6th Cross, Pipeline Road,
Vijayanagar, Bengaluru-23.
(Rep. by Sri.Prabhuswamy, Adv.)
V/S
Accused : Umashankar.R,
Aged about 45 years,
No.19, Masti Market,
2nd Floor, C.T.Street,
(Chowdeshwari Temple Street),
Bengaluru-02
And also at:
No.17, 1st Floor, 22nd Main,
2nd Cross, Rizwan Masjid Road,
Vinayaka Temple Road,
5th Phase, J.P.Nagar,
Bengaluru-78.
(Rep.by Sri.Anjaneya.A.B, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 35 C.C.25128/2016
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 02.04.2018.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint on 01.08.2016 against the accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque amount of Rs.2,80,000/-.
2. In nut shall, the case of the complainant is:
The complainant and accused were known to each other. During the month of December, 2015, the accused has approached the complainant and borrowed hand loan of Rs.2,80,000/- by cash, for his urgent domestic commitments. While borrowing the said amount, accused promised to repay the same within 6 months.
The complainant further contended that, after stipulated period, the complainant demanded for repayment of the said loan amount, in order to repay the Judgment 36 C.C.25128/2016 borrowed amount, the accused has issued a cheque bearing No.089503 dated:23.06.2016, drawn for Rs.2,80,000/-, drawn on Union Bank, C.T.Street Branch, Bengaluru, in favour of complainant.
The complainant further contended that, at the request of the accused, for encashment of the said cheque presented before his banker viz., Vijaya Bank, Vijayanagar Branch, Bengaluru. To utter shock and surprise of complainant, the said cheque was returned unpaid with an endorsement dated:27.06.2016 stating the reasons, "Funds Insufficient", in the account maintained by the accused.
Immediately, the complainant contacted the accused and disclosed about the dishonour of the cheque, but the accused neglected and failed to pay the amount covered under the cheque. Thereafter, the complainant got issued legal notice to the accused on 04.07.2016 by R.P.A.D to both the address through his counsel, demanding the payment within 15 days from the date of receipt of the legal notice. The legal notice sent through R.P.A.D to both the address were returned with a postal shara "Not Claimed"
returned to sender on 13.07.2016 and 09.07.2016. Even Judgment 37 C.C.25128/2016 after grace period of 15 days from the date of return of notice accused has neither paid the cheque amount nor replied the notice, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, the complaint.
3. After presentation of the complaint before this court, my predecessor in office had taken the cognizance and got registered the case and recorded the sworn statement of the complainant, and got registered the criminal case and process was issued to the accused.
4. In response to the summons, the accused appeared before this court and obtained the bail. After receipt of the copy of the complaint as required, the accusation read over and explained to the accused, he denied the same and claimed to have the defence. Thereafter, the evidence of the complainant was recorded by way of filing affidavit and got marked Exs.P1 to P10(a). Though, the accused has appeared through his counsel, he not choosen to put forth the defence by filing application required under Section 145(2) of Negotiable Instruments Act. Thereby made the case of the complainant unchallenged.
Judgment 38 C.C.25128/2016
5. Heard the arguments of complainant counsel. The accused counsel has not addressed the arguments.
6. On going through the materials available on record, the following points have been arising for determination:
4) Whether the complainant proves that, he complied the mandatory requirement of Section 138 of Negotiable Instruments Act against the accused?
5) Whether the complainant proves that, the accused has issued the cheque at Ex.P1 for discharge of his legally recoverable debt?
6) What Order?
7. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
REASONS
8. POINT NOs.1 and 2: Since these two points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts. Judgment 39 C.C.25128/2016
On going through the materials available on record, the fact that, Ex.P1 cheque and signature found therein belongs to the accused is not in dispute. The fact that, the said cheque within the stipulated period submitted to the bank and got dishonoured for the reason 'Funds Insufficient" as per Ex.P2 is not in dispute. The fact that, within the stipulated period the complainant has issued Ex.P3 legal notice to the accused as per Exs.P4 and P5 is not in dispute. Totally, the compliance of mandatory provisions made by the complainant which attracts Ex.P1 is not in dispute.
9. In order to prove the case of complainant, the complaint averments has reiterated in the affidavit filed in lieu of his chief examination by the complainant has substantial evidence. The evidence of PW.1 is supported with documents at Exs.P1 to P10(a), which are:
a) Ex.P1 is the cheque bearing No.089503 issued by the accused for sum of Rs.2,80,000/-, dated:23.06.2016.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:27.06.2016.
d) Ex.P3 is the Legal Notice dated:04.07.2016.
e) Exs.P4 and P5 are the postal receipts.Judgment 40 C.C.25128/2016
f) Exs.P6 and P7 are the not claimed R.P.A.D covers.
g) Exs.P8 and P9 are the Postal Acknowledgment Cards.
h) Ex.P10 is the private complainant, and
i) Ex.P10(a) is the signature of the complainant.
10. No doubt, during the record of plea, the accused denied the very allegations made against him. Thereafter, even the accused has not cross-examined the PW.1 nor put forth any defence throughout the case. No doubt, in decision reported in 2014 AIR SCW 3462 (Indian Bank Association and another V/s Union of India), the Hon'ble Apex Court has set out the mandatory directions to the magistrate courts to follow the prescribed procedures in dealing with Negotiable Instruments cases therein. As per the said dictum, the accused not choosen to file any application as required under Section 145(2) of Negotiable Instruments Act seeking permission to put forth his defence or cross-examine the PW.1. Wherein, it was pleased to observe that, in the event of non filing necessary application as required under the relevant provisions of the Act, it was directed to post the stage for defence evidence. Judgment 41 C.C.25128/2016
11. It is pertinent to note that, though accused at the time of recording accusation, denied the very allegations made against him, he unable to put forth any specific defence as to why, the Ex.P1 cheque was handed over to the complainant, other than the allegations made in the complaint. Thereby, the accused has failed to demonstrate that, he is not liable to pay the amount covered under the cheque, which is not legally recoverable debt. Even the accused has failed to demonstrate that, how the complainant has came to the possession of the cheque then alleged in the complaint and in that regard, he failed to set out any other defence. Contrary, the complainant has successfully made out that, as required under Section 118 of Negotiable Instruments Act, the Ex.P1 cheque was transferred to the complainant for the consideration. It is pertinent to note that, except bald denial while recording plea, the accused has not taken any specific defence, therefore, it is statutory presumption has raised in favour of the complainant that, the Ex.P1 cheque was issued by the accused for the payment of legally recoverable debt only. It was an opportunity to the accused to rebut the same, but either he has not taken any specific defence or Judgment 42 C.C.25128/2016 choosen to cross-examine the PW.1 in that regard. Therefore, as per Section 118 of Negotiable Instruments Act, the presumption is drawn that, for the payment of consideration made mentioned in the Ex.P1, the accused has issued the Ex.P1 - cheque. But he failed to rebut the said presumption throughout the case.
12. On going through the materials available on record, which relied by the complainant it prima-facie made out that, after complying the mandatory requirement, the complainant has presented the case against the accused. Even the compliance of mandatory provisions as put forth under Section 138 (a) to (c) of Negotiable Instruments Act is also remains unchallenged.
It is relevant to cite the following decisions. In a decisions reported in 2008 (4) SCC 54: 2008 (1) SCR 605, Krishna Janardhan Bhat V/s. Dattatraya G Hegde. The Hon'ble Apex Court has pleased to observe that:
Complaint under section 138 must contain the following ingredients, viz.,
(i) that there is a legally enforceable debt;Judgment 43 C.C.25128/2016
(ii) that the cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt;
(iii) cheque so issued had been returned due to insufficiency of funds;
13. As per the said dictum also, in the case on hand, the issuance of Ex.P1 cheque as the accused failed to prove the contrary, it pre-supposes that, for the payment of legally enforceable debt, the accused has issued the Ex.P1 cheque. Even for honoring the said cheque, the accused failed to maintain sufficient funds in his account. Though there was legal notice was issued to pay the amount covered under the cheque, the accused failed to utilize the said opportunity in order to discharge his burden.
In another decision reported in, AIR 2000 SC 145 (Anil Hada V/s. Indain Acrylic Ltd.,). The Hon'ble Apex court pleased to held that:
Under Section 139 of the Act there is a legal presumption that the cheque was issued for discharging an antecedent liability and that presumption can be rebutted only by the person who drew the cheque. The aforesaid presumption is in favour of the holder of cheque.Judgment 44 C.C.25128/2016
It is not mentioned in the section that the said presumption would operate only against the drawer. After all a presumption is only for casting the burden of proof as to who should advance evidence in a case. It is open to any one of the accused to adduce evidence to rebut the said presumption. In a prosecution where both the drawer company and its office-bearers are arrayed as accused, and if the drawer company does not choose to adduce any rebuttal evidence it is on to the other office-bearers- accused to adduce such rebuttal evidence. If that be so, even in a case where the drawer company is not made an accused by the office- bearers of the company alone are made the accused such office-bearers-accused are well within their rights to adduce rebuttal evidence to establish that the company did not issue the cheque towards any antecedent liability.
14. From the point of the above dictum also, it was opened to the accused to adduce the evidence to rebut the statutory presumptions, but he failed to rebut the same to suspect the genuineness of the claim made by the complainant.
It is relevant to cite another decision reported in, (1999) 97 Comp Cas 664 (K.I.George V/s. Muhammed Master). Wherein it was pleased to held that: Judgment 45 C.C.25128/2016
The presumption available under section 139 can be rebutted by the accused by adducing evidence. So the burden of proof is on the accused and the evidence available or record will have to be appreciated by bearing in mind the above fact regarding burden of proof.
15. In the case on hand, it is the complainant has to prove his case beyond the reasonable doubt. But, the accused has to prove his defence on the principle of preponderance of possibilities. In the case on hand, the complainant by producing documentary evidence as well as oral evidence, has proved his case beyond reasonable doubt. Even, the accused has not taken any probable defence, to rebut the case of the complainant, thereby, the accused has failed to disprove the very case of the complainant. Mere taking bald defence is not enough to suspect the genuineness of claim of the complainant. The accused failed to take any specific defence to rebut the case of the complainant. Therefore, there is no material on record to disbelieve the claim of the complainant. The complainant by producing convincing evidence, has proved his case beyond reasonable doubt.
Judgment 46 C.C.25128/2016
It is relevant to cite the judgment of Hon'ble Apex Court in, Writ Petition (Civil) No.18 of 2013 (Indian Bank Association and others V/s. Union of India and others). Wherein it was pleased to held that:
Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with the cases under Section 138 of Negotiable Instruments Act, for which the following directions are being given:
a) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day why the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.
b) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.
c) Court may indicate in the summon that if the accused makes an application for compounding Judgment 47 C.C.25128/2016 of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders as the earliest.
d) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re-
calling a witness for cross-examination.
e) The Court concerned must ensure that examination-in-chief, cross-examination and re-
examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-
examination as and when there is direction to this effect by the Court.
f) We, therefore, direct all the criminal courts in the country dealing with Section 138 cases to follow the above mentioned procedures for speedy and expeditious disposal of cases falling under Section 138 of Negotiable Instruments Act". Section 143 (2) & (3) of Negotiable Instruments Act reads thus:
Section 143 (2) of Negotiable Instruments Act reads thus: "The trial of a Judgment 48 C.C.25128/2016 case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing."
Section 143 (3) of Negotiable Instruments Act reads thus: "Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint."
16. In the case on hand, the evidence of the PW.1 remains unchallenged. Though, the accused appeared through his counsel not challenged the testimony of PW.1 as well as documents relied by the complainant. Thereby, made the sufficient grounds to draw the presumption as required under Section 139 and 118 of Negotiable Instruments Act, that, the accused for the repayment of the loan borrowed by him for sum of Rs.2,80,000/-, got issued the Ex.P1 cheque in favour of the complainant. Though, the said cheque was presented at the instance of the accused for encashment, the same got dishonoured and the Judgment 49 C.C.25128/2016 intimation was delivered to the complainant by stating "Funds Insufficient". Thereafter, the complainant issued the legal notice, calling upon the accused to repay the money covered under the cheque. Since, the accused not come forward to pay the money, accrued cause of action to the complainant to bring the present case. The very case put forth by the complainant is after strict compliance of mandatory provisions enumerated under Section 138 of Negotiable Instruments Act. Though, the accused appeared, but utterly fails to disprove the case of the complainant, and even failed to take any probable defence against the case of the complainant. The PW.1, successfully proved his case by producing material evidence on record. Thereby, the complainant has proved the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused wantonly issued the cheque for repayment of money without maintaining the sufficient funds, despite issued the legal notice not rectified his mistake by pay the money covered under the cheque. It shows that, intentionally the accused got issued the cheque without maintaining sufficient funds, thereby the accused committed the alleged Judgment 50 C.C.25128/2016 offence. Even after, the filing of the complaint and till the day, the accused not come forward to pay the money in order to skip from his liability. Thereby the complainant has proved that, the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act.
17. No doubt, the complainant proved the guilt of the accused. Under such circumstances, what is the sentence to be imposed on the accused is to be looked into. Keeping in the mind of the object of the introduction of Negotiable Instruments Act as well as the purpose of the loan availed by the accused from the complainant and made use of the same for his personal benefit, it appears this court that, it is a fit case to impose fine sentence rather imprisonment. The fine imposed on the accused in respect of the cheque amount along with additional fine of Rs.5,000/- payable to the state and major portion has to be payable to the complainant as compensation and meager portion has to be payable to the state as fine. If, the accused fails to pay the whole fine amount, as default sentence within appeal period, he shall undergo simple imprisonment for 07 Judgment 51 C.C.25128/2016 months. Thereby, one more opportunity has provided to the accused to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has proved his case beyond reasonable doubt. In the result, the accused shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the Affirmative.
18. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.2,85,000/- within appeal period.
Out of the said fine amount, sum of Rs.2,80,000/- shall be payable to the complainant as compensation as per Section 357 (3) of Cr.P.C. Remaining Judgment 52 C.C.25128/2016 amount of Rs.5,000/- shall be payable to the state as fine amount.
Failing which, as default sentence,
the accused shall under go simple
imprisonment for 07 (Seven) months.
The bail bond and cash
security/surety bond of the accused
stands cancelled.
The office is hereby directed to
supply the copy of this Judgment to the
accused on free of cost.
(Dictated to the Stenographer directly on computer typed by him, corrected and then pronounced by me in the open court on this the 2nd day of April - 2018) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Ramaswamy.R.N List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque
Ex.P1(a) : Signature of accused
Ex.P2 : Bank endorsement
Ex.P3 : Office copy of legal notice
Exs.P4 & P5 : Postal receipts
Exs.P6 & P7 : Not claimed R.P.A.D covers
Exs.P8 & P9 : Postal Acknowledgment Cards
Judgment 53 C.C.25128/2016
Ex.P10 : Private Complaint
Ex.P10(a) : Signature of complainant
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 54 C.C.25128/2016
02.04.2018.
Comp -
Accd -
For Judgment Case called out.
Complainant is present.
Accused is absent. No
representation on behalf of accused.
Accused remained absent. Hence, the
judgment is passed as per Section 353(6) of Cr.P.C.
Judgment pronounced in the open court vide separate order.
*****
ORDER
Accused found guilty for the offence
punishable under Section 138 of
Negotiable Instruments Act.
Acting under Section 255(2) of
Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.2,85,000/- within appeal period.
Out of the said fine amount, sum of Rs.2,80,000/- shall be payable to the complainant as compensation as per Section 357 (3) of Cr.P.C. Remaining Judgment 55 C.C.25128/2016 amount of Rs.5,000/- shall be payable to the state as fine amount.
Failing which, as default sentence,
the accused shall under go simple
imprisonment for 07 (Seven) months.
The bail bond and cash
security/surety bond of the accused
stands cancelled.
The office is hereby directed to
supply the copy of this Judgment to the
accused on free of cost.
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.