Bangalore District Court
S/O Sri. Govinda Reddy vs And Complainant Are Into Interior ... on 4 October, 2021
SCCH-2 1 C.C.3000/2018
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL
CAUSES AND ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU (SCCH-2)
C.C. NO: 3000/2018
Present: Smt. Shainey K.M.
BAL.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACMM, Bengaluru.
Dated: On this 4th day of October, 2021.
JUDGMENT U/S 355 OF CR.P.C. 1973.
1. Sl.No. of the Case : C.C.No.3000/2018
2. The date of commission : 28.06.2018
of the offence
3. Name of the : Sri. V. Rajasekhar Reddy,
Complainant
S/o Sri. Govinda Reddy,
Aged about 36 years,
Mareddy Palli,
H/O Mandala Palli
Panchayat,
Gorantal Mandalam,
Hindupur Taluk,
Ananthapur District,
Andra Pradesh.
And also
SCCH-2 2 C.C.3000/2018
Residing at No.7, 1st Floor,
Venkateshwara Nilaya,
Chinnappa Layout.
Near Sunrise School,
Kempapura Hebbar,
Bangalore-560 024.
(By Sri.S. Pradeep, Advocate)
4. Name of the Accused : Sri Sai Ram Interiors,
Represented by its
Proprietor Sri. Jagadheswar,
Aged about 60 years,
Plot No.405,
Comfort Shanthi,
No.14, 2nd Cross, Srinivasa
Colony, Mission Road,
Bangalore-560 027.
(By Dr. Parvathy, Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused is acquitted.
8. Date of such order for : 04.10.2021
the following
SCCH-2 3 C.C.3000/2018
JUDGMENT
This is private complaint filed against the accused for the offences punishable under section 138 read with section 142 of N.I Act (hereinafter referred to as 'the Act') .
Cognizance of the offence was taken on presentation of the private complaint and ordered to register the criminal case, as there were prima facie materials to proceed against the Accused.
2. The brief facts of the complainant's case is as follows:
It is the contention of complainant that, both accused and complainant are into interior Business and they know each other since 9 years. The complainant herein had lot of confidence on the accused in money related dealings. That on 15.2.2016, the accused has borrowed a Sum of Rs.6,50,000/- from the complainant for his family legal necessities and business purpose. After SCCH-2 4 C.C.3000/2018 several request and demands, the accused has issued the cheque bearing no:790334, dtd: 13.4.2018 for a sum of Rs 2,50,000 and another cheque bearing no: 790335 dtd:
16.4.2018 for a sum of Rs 4,00,000/- drawn on Textile Co-
operative Bank Ltd. Bangalore towards discharge of legally enforceable debt. The complainant has presented the said cheque through his bankers Karnatka bank Ltd., Bhuvaneshwari Nagar Branch, Bengaluru. The said cheque came to be dishonoured on 04.5.2018, for the reason "funds insufficient". That on 11.5.2018, the complainant has issued legal notice to the accused through RPAD and same was served. But the accused has given untenable reply instead of repaying the amount. Hence, this complainant.
3. On being served the summons, the Accused appeared through his counsel and got released him on bail. Plea of the Accused has been recorded by explaining the substances of accusation. Accused pleaded not guilty SCCH-2 5 C.C.3000/2018 and claims to be tried. The Accused filed application under Section 145 (2) of N.I Act, seeking permission to cross-examine Complainant and to proceed in accordance with Law. Accordingly, the application is allowed and the Accused is permitted to cross-examine Complainant/PW-1.
4. In support of his case, complainant got examined himself as PW-1 and produced five documents marked at Ex.P.1 to Ex.P.5.
5. After closure of Complainant's evidence, the Accused was examined under Section 313 of Cr.P.C. by explaining the incriminating circumstances appearing in the evidence of the Complainant. The Accused has denied the prosecution version in toto. The Accused got examined him as Dw:1. Ex.D:1 to 14 marked in defence evidence. The accused remained absent. Hence, cross-examination of DW-1 taken nil and the defence evidence as well as arguments of the accused is also taken as nil and posted the case for judgment.
SCCH-2 6 C.C.3000/2018
6. Despite of availing sufficient opportunities, the complainant did not submit his arguments. Perused the material placed on record. Now, following points arise for my consideration for disposal of case;
POINTS
1. Whether Complainant proves beyond all reasonable doubt that Accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
2. Whether accused has rebutted the presumption as contemplated u/sec 139 of N.I Act?
3. What order?
7. My answers to the above points are as follows:
Point no:1 : In the negative.
Point no:2: In the affirmative.
Point no.3: As per final order for the following:
SCCH-2 7 C.C.3000/2018
:REASONS:
8. Point no:1 & 2: For sake of convenience and to
avoid repetition of facts, these points are taken up for common discussion as here under.
9. This is a private complaint filed against the accused for the offence punishable under sec 138 read with section 142 of NI Act. To prove his case, the complainant examined himself as Pw:1 and filed affidavit by way of examination in chief. Pw:1 has reiterated the averments of complainant in his evidence. In support of his evidence, Pw:1 has produced the cheque in question allegedly issued by accused at ExP:1. The cheque was returned by Textile Co-operative Bank Ltd., with an endorsement stating funds insufficient as per Ex.P-2. Thereafter, the complainant issued legal notice to accused calling upon him to repay the loan amount of Rs.2,50,000/- and said notice is marked as Ex.P:3. Ex.P:4 is the registered postal acknowledgement in respect of SCCH-2 8 C.C.3000/2018 said notice. Accused has cross examined the Pw:1 in detail.
10. It is the case of the complainant that on 15.02.2016, the accused has borrowed a sum of Rs 6,50,000/- from the complainant and as he did not repay the above amount, the accused has issued ExP:1 cheque to Pw:1 for repayment of loan.
11. The accused has seriously disputed the financial capacity of complainant to lend Rs 6,50,000/-. The accused has issued cheque to complainant and it is not in dispute. ExP:1 (a) is the signature of the accused and it is not in dispute. It is just and proper to state the fact which is not in dispute. The admitted facts are as follows:
ADMITTED FACTS
1. Complainant is owner of Sri Sai Moduler Furniture and said shop is located in Shop no: 57-2, in front of Lumbini Garden, 3rd cross, Veerannapalya, Outer ring road, Bangalore-45. However, Pw:1 SCCH-2 9 C.C.3000/2018 deposed that he did not receive the legal notice of the accused prior to presentation of cheque to bank.
2. It is admitted fact, that accused has replied the demand notice sent by the complainant. However, said reply notice not been produced by the complainant in this case.
3. The complainant herein is an income Tax assessee, however, he did not produce the authentic copy of IT returns before the court to his financial capacity to lent the money to accused.
4. The complainant has received payments made by the accused through E payment. However, Pw:1 deposed that said payments are related to business transaction in between the parties to the case.
5. A criminal case has been registered against the complainant herein on basis of complaint lodged SCCH-2 10 C.C.3000/2018 by the accused for alleged misuse of cheque in question.
6. Gorlanta village of Anantpur District, Andhra Pradesh is the native place of the complainant herein. The complainant has be gotten 3 children and they are school going children. The complainant herein is staying in a rented house and he runs his business in rented premises. He gets annual income of Rs 3 to 4 lakhs from his business and 8 workers are working under him.
7. There is no positive evident to show that complainant herein had Rs 6,50,000/- with him at the time of alleged loan transaction. No documents are also not been executed by the accused to prove the payment of alleged loan amount. The cheque in question was allegedly issued by the accused 2 years of the alleged loan transaction.SCCH-2 11 C.C.3000/2018
12. Financial Capacity :- The accused has challenged the financial capacity of complainant to lend a sum of Rs. 6.5 lakhs. As accused has challenged the financial capacity of the complainant to lend such a huge amount, the burden lies on the complainant to prove his financial capacity to lend hand loan of Rs 6.5 lakhs to accused as well as his source of income.
13. Hon'ble apex court of India had considered section 118, (a), 138 and 139 of NI Act in case between M.S Narayana Menon Vs State of Keral (2006) 6 SCC 39. It was held that presumption both under sections 118 (a) and 139 of Act are rebuttable in nature. What would be the effect of the expressions "may presume" "shall presume"
and "conclusive proof" has been considered by hon'ble Supreme Court of India in Union of India Vs. Pramod Gupta (2005) 12 SCC 1. It was noted in M.S Narayana Menon case, that the expression "shall presume" cannot be held to be Synonymous with conclusive proof. Applying SCCH-2 12 C.C.3000/2018 the said definitions of "proved" or "disproved" to the principle behind sec. 118(a) of the NI Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstance of the particular case, to act upon the supposition that the consideration does not exist.
14. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
15. In Krishna Janardhan Bhat V Dattatraya G Hegde, (2008) 2 SCC (Cri) 166, the hon'ble Apex could held that an accused for discharging the burden of proof placed upon him under a statue need not examine himself. He may discharge his burden on the basis of the material SCCH-2 13 C.C.3000/2018 already brought on record. An accused has a constitutional right to maintain silence. "Standard of proof on the part of an accused and that of the prosecution in a criminal case is different." The standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities".
16. In Kumar Exports Vs Sharma Carpets (2009) 2 SCC 513, Hon'ble apex court, again examined as to when the complainant discharges the burden to prove that the instrument was executed and when the burden shall be shifted (In paras 18 to 20).
17. In Rangappa Vs. Sri Mohan 2010 (11) SCC 441, Hon'ble Apex court held that the presumption mandated by Sec. 139 of NI Act, does indeed include the existence of a legally enforceable debt or liability, which of course, is in the nature of rebuttable presumption (in para 26). SCCH-2 14 C.C.3000/2018
18. In several decisions, Hon'ble apex courts have held that it is not necessary for the accused to come in the witness box to support his defence.
19. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on the cheque having been admitted, a presumption shall be raised under sec 139 of Act that the cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused.
20. It is admitted by P.W.1 that he has document or evidence to show that he had huge amount with him at the time of alleged loan transaction to lend huge amount of loan to accused. So, the financial capacity of P.W.1 to lend money is being challenged by the accused. P.W.1 is a merchant of the wood works and he is an income tax assessee and this fact is taken into consideration to assess his financial capacity to deal with the financial affairs, SCCH-2 15 C.C.3000/2018 particularly, such as lending huge amount to anyone including accused.
21. Firstly, it is an admitted fact that, P.W.1/complainant herein has no document to show he had Rs. 6.5 lakhs in his hand prior to or at the time of alleged loan transaction. So, the burden is heavily lies on the P.W.1 to place cogent and corroborative evidence to prove his source of money to lend the loan. There is no positive evidence in this regard.
22. Another aspect is that, why no document as instrument was executed although the huge amount was allegedly being paid to accused is relevant question, which could be posed in the matter. Not only no document had been executed, even no interest has been charged. As deposed by P.W.1 himself, loan was given to accused in the year 2016. But, no documents such as promissory note or loan agreement were taken from the accused for the security of said loan.
SCCH-2 16 C.C.3000/2018
23. The complainant has not produced his IT returns relating to relevant period to prove the alleged loan transaction. The complainant has failed to prove his financial capacity. No income tax return has been produced to show this loan transaction.
24. It is an admitted fact that a criminal case has been registered against the complainant herein for alleged misuse of cheque belonging to the accused on the basis of complaint lodged by the accused.
25. The accused has replied the demand notice of complainant narrating all defence taken up in this case. However, the complainant did not produce the legal notice in this case. It is admitted by the Pw:1 that he received the reply notice of the accused but he pleaded ignorance about the contents of reply notice. All these facts creates doubt in case of the complainant and the conduct of complainant reveals that he did approach the court with clean hands. SCCH-2 17 C.C.3000/2018
26. Based on evidence led by defence, this court is inclined to hold that the accused has raised a probable defence and complainant failed to prove his financial capacity. Therefore, the complainant is failed establish the advancement of loan and his financial capacity to lend money by placing cogent and corroborative evidence. My reason is supported by the decision of Hon'ble Supreme Court reported in 2007 AIR SCW 6736 in the case between John K. John Vs. Tom Varghese and Another and the decision of hon'ble High court of Karnataka reported in a case between 1. Shankara Narayana V/ K. Annappa Prabhu in Crl. Appeal no:987-2011 dtd; 2.12.2019. 2) Smt. Shashikala Vs. Sri Nyatappa in Crl.A no: 901-2010 dtd: 22.9.2020. 3) Ashok Tatappa Kotiwale Vs. Sevantha Sukumar Bagi in Crl.A no: 100026-2015 dtd; 2.12.2020. 4) Yallappa Basappa Hadapad Vs. Nabisab Rajesab Nadaf, in Crl.A no: 100059-2014 dtd:
20.11.2010. 5) T. Venkataramaiah Vs. Esha G S/o SCCH-2 18 C.C.3000/2018 Gangadhar in Crl.A no: 498-2011 dtd. 25.9.2020, and 5) Basalingappa v. Mudibaappa, 2019 (5) SCC 418, AIR 2019 SC 1983.
27. Hence Point no:1 is answered in the negative and point no:2 in the affirmative.
28. Point no:3 : For the reasons discussed above in Point no:1 and 2, I, proceed to pass the following:
ORDER Acting U/sec 255 (1) of Cr.P.C, the accused is not found guilty and therefore, acquitted him for the offence punishable under Section 138 of the Negotiable Instrument Act.
The bail bond of accused and that of surety is hereby stands cancelled.
(Dictated to the stenographer on laptop, typed by her, corrected, print out taken, signed, then pronounced in open court on this the 4th day of October, 2021) (Smt. Shainey. K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.SCCH-2 19 C.C.3000/2018
:ANNEXTURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT P.W.1 : Sri. V. Rajasekhar Reddy.
LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Original Cheque dated:13.04.2018
Ex.P.1(a) : Signature of accused.
Ex.P.2 : Cheque return memo dated:04.05.2018
Ex.P.3 : Copy of legal notice.
Ex.P.4 : Postal Acknowledgment.
Ex.P.5 : Reply notice issued by the accused to
complainant.
LIST OF WITNESSES EXAMINED BY ACCUSED P.W.1 : Sri. Jagadeeshwar LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED: Ex.D.1 : Certified copy of Notice issued by the accused to complainant dt:20.04.2018.
Ex.D.2 : Certified copy of Postal Tract Consignment.
Ex.D.3 & 4 : Certified copy of 2 Legal notices issued by the complainant to accused.
Ex.D.5 : Certified copy of Legal notice dt:14.05.2018 issued by Vanam Najireddy to accused.SCCH-2 20 C.C.3000/2018
Ex.D.6 to 8 : Certified copies of 3 reply notices dt:05.06.2018 issued by accused to complainant and Vanam Najireddy.
Ex.D.10 : 2 Certified copies of postal Acknowledgments.
Ex.P.11 : Certified copy of complaint issued by accused against the complainant to Sampangi Ram Nagar PS. Ex.P.12 : Certified copy of complaint issued by accused against the complainant to Commissioner of Police.
Ex.P.13 : Certified copy of Endorsement issued by the police.
Ex.P.14 : Certified copy of Statement of Account of accused.
(Smt. Shainey K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.