Bangalore District Court
Sri. K.M. Uday vs Sri. Basoor Nataraj on 16 May, 2016
IN THE COURT OF XIII ADDL. CHIEF
METROPOLITAN MAGISTRATE,
BANGALORE.
:: PRESENT ::
SMT.C.G VISHALAKSHI, B.A., L.L.B.,
XIII A.C.M.M Bangalore.
C.C. NO.7789/2014
Dated: This the 16th day of MAY-2016
COMPLAINANT/S: Sri. K.M. Uday,
S/o. Madaiah,
Aged about 38 years,
R/at. No.4/204,
Vishal Palace, 1st Cross,
Malleshwaram,
Bangalore.
ACCUSED: Sri. Basoor Nataraj,
S/o. B.R.D. Murthy,
Aged about 42 years,
R/at. No.152, 4th Main,
11th Cross, Ideal Homes,
1st Phase, Rajarajeshwari Nagar,
Bengalooru.
Offence U/s.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Acquitted
**********
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JUDGEMENT C.C.7789/2014
JUDGEMENT
This complaint filed against the accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 of Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The complainant and accused are known to each other since several years and there is long standing relationship in between them. On such acquaintance during 3rd week of August-2012 the accused had approached the complainant requesting him for financial assistance of Rs.10,00,000/- assuring about its repayment within 4 months. The complainant by believing the words of the accused arranged a sum of Rs.10,00,000/- and advanced the same infavour of the accused on 16-08-2012 by way of cash. The accused towards prompt repayment of the loan had issued a post dated cheque bearing No.023892, dated: 06-02-2013 for a sum of Rs.10,00,000/- drawn on Canara Bank, 3 JUDGEMENT C.C.7789/2014 Rajarajeshwari Nagar, Bengalooru assuring about its honour. When the complainant has presented the said cheque for encashment through his banker Karnataka Bank Ltd., Malleshwaram Branch, Bangalore, but the said cheque was returned unpaid for the reason 'Payment stopped by the drawer' vide endorsement dated: 07-02-2013. Thereafter the complainant had issued legal notice against the accused calling upon him to pay the cheque amount by narrating the fact of dishonour of the cheque and sent the notice through RPAD. The said notice was served on the accused on 23- 02-2013. Despite of service of notice, the accused did not come forward to settle the cheque amount. Hence, having no other go, the complainant approached this court with this complaint against the accused alleging that, the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and prays to deal the accused in accordance with law. 4
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3. On presentation of the complaint, this court has taken cognizance of the offence, Sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail.
Copies of the complaint papers supplied to him. Substance of accusation was readover and explained to the accused. Accused did not pleaded guilty and claims to be tried. Hence, the matter was posted for evidence of the complainant.
4. In order to prove the case of the complainant, he got examined himself as PW.1 & got marked documents as Ex.P.1 to P6 and closed his side evidence. After completion of the complainant's evidence, the accused was examined under Section.313 of Cr.P.C. and his statement was recorded. The accused denied all the incriminating evidence appeared against him and chosen to lead his defence evidence. To substantiate his defence 5 JUDGEMENT C.C.7789/2014 and to falsify the claim of the complainant the accused has examined himself as DW1 and one witness as D.W.2 and got marked documents as Ex.D1 to D11 on his behalf.
5. Heard arguments. The complainant to strengthen his case has written arguments. The accused has filed written arguments along with citations as follows:
ILR-2009 KAR 2331 B. Indramma V/s. Sri. Eshwar 2011 Crl. L.J.552 Karnataka High Court Amzad Pasha V/s. H.N. Lakshmana 2012(3) KCCR 2057 Veeravva V/s. G.K. Madivalar 2013(1) DCR 390 Rajeev V/s. State of Kerala 2009 AIR SCW 3996 Raj Kumar Khurana V/s. State of (NCT of Delhi) & Anr.
2001(1) KCCR 437
G. Premadas V/s. Venkataraman
2011(5) KCCR 4223
2006(3) KCCR 1779
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JUDGEMENT C.C.7789/2014
ILR 2008 KAR 4629
Shiva Murthy V/s. Amrtuhaj
ILR 2006 KAR 3105
2009 (6) Supreme Court Cases 72
6. Upon reading the entire materials on record and on hearing the arguments, the following points that arise for my consideration:
POINTS
1. Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence punishable under Section.138 N.I. Act?
2. What order?
7. My answers to the above points are as follows:
Point No.1: In the Negative
Point No.2: As per the final order, for the
following.
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:: REASONS ::
8. POINT NO.1: As the accused did not pleaded
guilty, the complainant has chosen to examine himself as PW.1 and got marked documents as Ex.P1 to P6.
9. As per the decision reported in ILR 2008 KAR PAGE-4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex Court in AIR-2008 SC-1325 between Krishna Janardharn Bhat V/s Dattareya G. Hegde, in order to attract Section.138 of Negotiable Instruments Act, the complainant has to satisfy three essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.8
JUDGEMENT C.C.7789/2014
10. Keeping in view the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P1 is cheque i.e., bearing No.023892, dated: 06-
02-2013 for Rs.10,00,000/- drawn on Carana Bank, Rajarajeshwari Nagar, Bangalore. According to complainant Ex.P1(a) is the signature of the accused. On perusal of the original complaint i.e., Ex.P6, it is clear that it buttress the stand taken by the complainant herein.
(b) Ex.P2 is the cheque return memo, which shows that the above said cheque i.e., Ex.P1 was returned unpaid dated: 07-02-2013 because of the reason that 'Payment stopped by drawer'.
(c) It must be noted as per Clause (b) proviso to Section.138 of Negotiable Instruments Act, the complainant was required to make a demand for 9 JUDGEMENT C.C.7789/2014 payment of the said amount within 30 days from the date of receipt of cheque as un-paid.
(d) Ex.P3 is copy of the legal notice dated: 21-02-2013, which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheques amount by issuing notice against him which is within 30 days.
(e) Ex.P4 and P5 are the postal receipt and postal acknowledgment, reflects that the legal notice was served on accused.
As per Clause (C) proviso to Section.138 of N.I Act, the accused is entitle 15 days time to make payment of money covered under cheque. Further, as per Section.142 (b) of N.I Act, complaint has to be filed within 30 days from the date of which the cause of action aroses. Therefore, the complainant had filed this complaint well within time.
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Thus, the complainant has fulfilled all the
ingredients, which were required for the completion of the offence punishable under Section.138 of Negotiable Instruments Act.
11. Keeping these documents in view, let us proceed to discuss that, whether the cheque in question belongs to the accused and whether the signature found on disputed cheque is that of the accused.
12. On looking the materials on record it shows that, there is no dispute so as to the fact that the Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is his signature as it is the defence of the accused that there was no loan transaction between complainant and accused and he never borrowed any loan from the complainant and he never issued any cheque much less Ex.P1 cheque infavour of the complainant towards discharge of any debt or liability. But it is his defence that the complainant had obtained 11 JUDGEMENT C.C.7789/2014 his cheque illegally and had illegal possession of cheque and his stamp papers. The complainant and his friends namely Ramachandrappa, Murthy, Prashanth, Rajashekar and Swamy have trespassed to his house on 02-08-2012 and made galata and as such he lodged complaint against those persons including the complainant of this case by narrating the fact that how his cheques went to the possession of the complainant and other by narrating the illegal activities of the complainant and others i.e., gambling, cards playing and running club and how he got trapped by them and about lost of his money in the said gambling. He also narrated the fact that inspite of clearing the dues to the complainant and others, the complainant and others did not returned his cheques and stamp papers, on the other hand they dodged the matter. Hence, he gave necessary instructions to the bank authorities with cheques number for stop payment of his cheques by narrating the fact that they were missed and fraudulently obtained by some culprits etc., In spite of the same, the complainant 12 JUDGEMENT C.C.7789/2014 by misusing his cheques has filed this false complaint against him though there is no existence of debt or liability in between himself and complainant.
13. Thus, there is no dispute so as to the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is his signature.
14. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE-2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of Negotiable Instruments Act (Cheque in question) is admitted as well as proved.
15. In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption under 13 JUDGEMENT C.C.7789/2014 Section.139 of Negotiable Instruments Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration. Having admitted the fact that Ex.P1 cheque belongs to the bank account of the accused and Ex.P1(a) is his signature, presumption arose in favour of the complainant under Section.139 of Negotiable Instruments Act. Hence, burden is on the accused to rebut the same with probable evidence.
16. To substantiate the defence of the accused, the learned counsel for accused cross-examined P.W.1. During cross-examination PW.1 denied about illegal possession of the disputed cheques and about lodging complaint by the accused against the himself and others at Rajarajeshwari Nagar Police Station in Crime NO.148/2012 and about stop payment instructions given by the accused to his banker requesting them not 14 JUDGEMENT C.C.7789/2014 to honour the cheques by mentioning cheques number etc., as false.
17. To prove the same the accused has relied on the documents like Ex.D5, the copy of complaint lodged by the accused with the Rajarajeshwari Nagara Police station against the persons who allegedly trespassed to his house. Wherein the accused narrated the fact that how he lured by the complainant and others for gambling, cards playing and also the fraudulent intention of the persons to squeeze money and property of the accused. He also narrated the fact of obtaining his blank cheques and signed blank cheques, stamp papers by the said persons when he lost the gambling. He also narrated the names of person who played fraud on him along with their cell phone numbers. On reading the said complaint it reflects the name of this complainant also finds placing the Ex.D5 complaint. Though during cross- examination the complainant attempted to say that the name referred in Ex.D5 complaint as Uday is not referred 15 JUDGEMENT C.C.7789/2014 to the complainant of this case etc., but it is denied by the accused. To falsify this evidence of the accused, the complainant not placed any other evidence before this court except bare suggestions and denial.
18. Further, as per Ex.D5 complaint it was lodged with the police on 02-08-2012 and on that basis the case has been registered by the Rajarajeshwari Nagar Police in FIR.148/2012 as per Ex.D6. This clearly goes to show that there was police complaint by the accused against this complainant and others much less earlier to the alleged disputed loan transaction. Because as per Ex.P6 complaint the alleged loan transaction between the complainant and accused was during August-2012. That means to say that as per Ex.P6, the complainant allegedly advanced loan of Rs.10,00,000/- infavour of the accused on 16-08-2012. But as per the Ex.D5 complaint there was police complaint against this complainant and others lodged by the accused on 02-08-2012 itself. This creates doubt with regard to the alleged loan transaction 16 JUDGEMENT C.C.7789/2014 in between the complainant and accused. Because when there was police complaint by the accused against the complainant and others, then how there could be a loan transactions in between the complainant and accused and how the complainant could advance loan infavour of the accused. This creates doubt about the very loan transaction in between the complainant and accused. Because there cannot be any good term between the complainant and accused when there was police complaint by the accused against the complainant and others. When such being the case the say of the complainant that there was loan transaction in between complainant and accused and he had advanced loan of Rs.10,00,000/- infavour of the accused is not acceptable one.
19. Further the complainant has not explained how and for what reasons he advanced loan infavour of the accused inspite of police complaint against him and others. Because the loan will be paid infavour of any 17 JUDGEMENT C.C.7789/2014 person only on the confidence reposed against them. But in the case on hand admittedly as per Ex.D5 and D6 there was a police complaint against the complainant and others at Rajarajeshwari Nagar Police station. When such being the case the say of the complainant that he advanced loan in favour of the accused cannot be acceptable one. No doubt P.W.1 denied the fact of lodging complaint by the accused against him and others as false by pleading ignorance etc. but the accused has stated about this fact about lodging of police complaint against the complainant and others in his Ex.D3 reply notice to the demand notice issued by the complainant by setting up his defence by narrating the circumstance how his cheques and stamp papers were reached to the hand of the complainant and others. Soon after receipt of reply notice the complainant would have necessarily made any attempt to ascertain the truthfulness about lodging complaint by the accused at police station and he would have suitably reply the notice of the accused, if there is no truthfulness in the alleged complaint. But no 18 JUDGEMENT C.C.7789/2014 such attempt has been made by the complainant, hence mere pleading ignorance about filing the complaint by the accused against him and others during the course of evidence is not acceptable one.
20. Further, it is the case of the complainant that he had advanced loan infavour of the accused to the tune of Rs.10,00,000/- on 16-08-2012 and the accused had issued post dated cheque bearing No.023892, dated: 06- 02-2013 for a sum of Rs.10,00,000/- towards prompt repayment of the alleged loan. That means to say that the accused had issued Ex.P1 disputed cheque infavour of the complainant on 16-08-2012 only. But it is denied by the accused with specific defence that he never borrowed any loan of Rs.10,00,000/- from the complainant on 16-08-2012 as claimed by him and he never issued Ex.P1 cheque infavour of the complainant towards discharge of any debt or liability by taking defence that he came into contact with one H.M. Prashanth Kumar and through him the complainant 19 JUDGEMENT C.C.7789/2014 and his friends have came into contact with him and they were playing cards and gambling at various hotels, clubs illegally without any license. He was lured by the complainant and others to high stakes games by said Prashanth Kumar and he lost huge money in the said game and whenever he lost his money in the game the club owners used to collect the some guarantee documents till repayment of the due amount and some times the accused used to issue blank cheques to the Rajkumar and Ramachandra as security. Thereafter he had repaid the amount. But, the said person not returned his cheques inspite of his request on the other hand they dodged the matter on one pretext or the other. Though accused waited for some time in goof faith, but inspite of the same the complainant and others were trespassed to his house and made galata. Hence, he not only lodged complaint with the police against those persons, but also gave stop payment instructions to the bank authorities on 09-08-2012 itself by narrating the fact that his cheques were fraudulently obtained by some 20 JUDGEMENT C.C.7789/2014 culprits etc., by mentioning cheques number including this disputed cheque No.23892 also. To substantiate the said fact the accused has produced documents like Ex.D7 letter i.e., stop payment instructions letter.
21. On perusal of the said document it shows that the accused had given stop payment instructions to the bank authorities requesting them not to proceed to honour his cheques about 30 numbers along with cheques numbers. He also produced document like Ex.D8 letter of confirmation issued by the bank authorities stating that the stop payment instruction has been registered by the bank authorities and carried out his instruction of stop payment in respect to the cheques mentioned in Ex.D7 letter of instruction which includes the disputed cheques also. The fact that Ex.P1 cheque returned unpaid for the reason 'Payment stopped by drawer' is not denied by the complainant. Because as per the complainant, Ex.P1 cheque which was allegedly given by the accused towards repayment of alleged debt was 21 JUDGEMENT C.C.7789/2014 returned unpaid and dishonoured for the reason 'Payment stopped by the drawer' as per Ex.D3 endorsement. Though PW.1 pleaded ignorance about the said fact of giving stop payment instructions by the accused to the bank authorities in respect to the cheques including Ex.P1 cheque also, but as aforesaid discussion, the accused to substantiate the said fact has produced documents like Ex.D7 and D8 i.e., stop payment instruction letter and confirmation letter issued by the bank authorities for honouring the request of the accused. Which clearly reflects about giving stop payment instructions by the accused to the bank authorities requesting them not to honour the cheques mentioned in Ex.D9 letter on 09-08-2012 itself and Ex.D8 letter of confirmation was issued by the bank authorities for having honour the request of the accused.
22. Further to prove the said document the accused had examined competent person i.e., Bank Manager as DW.2 before this court. Who not only deposed about 22 JUDGEMENT C.C.7789/2014 issuance of cheque book containing the disputed cheque infavour of the accused during the year 2009, but also deposed about issuance of letter of request by the accused as per Ex.D7 for stop payment in respect to the cheques including disputed cheque i.e., Ex.P1 cheque by the accused on 09-08-2012 as per Ex.D7 document. Hence, they acted upon the said letter and carried out the stop payment instructions in respect to the cheque mentioned in Ex.D7 letter of request including the disputed cheque involved in this case. Hence, his evidence corroborated to the defence of the accused. Further his evidence is not falsified by the complainant as the complainant not chosen to cross-examination DW.1 about truthfulness and genuinity of Ex.D7 and D8 documents. On perusal of Ex.D7 letter i.e., letter of request it shows that the accused has given such stop payment instructions requesting them not to honour the cheques by giving cheques numbers approximately 30 numbers which includes the disputed cheques i.e., Ex.P1 cheque and such instructions was given by the accused 23 JUDGEMENT C.C.7789/2014 to the bank on 09-08-2012. Though the complainant suggested DW.1 in his cross-examination that there is two seal/stamp impression with regard to the date in Ex.D7 document and thus Ex.D7 and D8 are concocted and created etc. But to prove the said fact he has not chosen to cross-examination DW.2. Thus, the genuinity of Ex.D7 and D8 documents could be accepted and those documents can be looked into.
23. On perusal of the said documents as aforesaid discussion the accused has given stop payment instructions to the bank authorities in respect to the cheque mentioned therein including Ex.P1 cheque also on 09-08-2012. When such being the case, how it could be possible for the accused to give the said cheque infavour of the complainant on 16-08-2012 by mentioning the post date as 06-02-2013, because alleged stop payment instructions was given much earlier to the date of alleged loan transaction. Because as per Ex.P6 complaint the alleged loan transaction in between the 24 JUDGEMENT C.C.7789/2014 complainant and accused was on 16-08-2012 and as per the complainant, the accused had issued the disputed cheque infavour of the complainant on that day only. When the accused had given stop payment instructions to the bank authorities by stating that the cheques including disputed cheques were taken by the complainant and others fraudulently etc., then how can he anticipate about giving of Ex.P1 disputed cheque in future date. That means to say that how the accused can anticipate the fact that he going to borrow loan from the complainant and he is going to give Ex.P1 cheque only in favour of the complainant in future date. This creates doubt about very loan transaction in between the complainant and accused and also about issuance of Ex.P1 cheque by the accused in his favour towards discharge of debt or liability.
24. This circumstance is sufficient to dispel the burden which arose infavour of the complainant under Section.139 of Negotiable Instruments Act and on the 25 JUDGEMENT C.C.7789/2014 other hand it probablise the defence of the accused that the complainant had illegal possession of Ex.P1 cheque and about its misuse. Hence, onus shifted on the shoulder of the accused to prove the fact that there was a loan transaction in between the complainant and accused, he had advanced the loan infavour of the accused to the tune of Rs.10,00,000/- on 16-08-2012 and towards discharge of the said debt only the accused had issued Ex.P1 cheque with necessary evidence beyond shadow of doubt. But in this regard the complainant though deposed about advancement of loan amount of Rs.10,00,000/- infavour of the accused on 16- 08-2012, but not proved the same with necessary cogent evidence. On the other hand PW.1 clearly stated that he did not obtained any receipt for having advanced the loan infavour of the accused.
25. Further, as aforesaid discussion there was a complaint against the complainant and others at Rajarajeshwari Nagar police station as per Ex.D5 and 26 JUDGEMENT C.C.7789/2014 D6. When such being the case how there could be any such loan transaction in between complainant and accused and how the complainant can advance such loan infavour of the accused that too without taking any document as security. This creates doubt with regard to the alleged loan transaction in between complainant and accused.
26. Further the accused attacked the case of the complainant by questioning the monitory capacity of the complainant contending that the accused had not placed any documents to show that he had that much of amount i.e., a sum of Rs.10,00,000/- in his favour on that day in order to advance the loan infavour of the accused etc.. To prove the same the accused relied on cross-examination of PW.1. Wherein PW.1 though deposed he can produce documents like bank account extract and also his income returns for the year 2011-13 etc., but he has not produced any such documents before this court. Further though PW.1 stated that he 27 JUDGEMENT C.C.7789/2014 had amount of Rs.4 to 5 lakhs in his house and he had obtained a sum of Rs.2 lakhs from Sugarcane and his friend Kumar had to given some amount to him and had given the said amount. Thus he had amount to lend loan infavour of the accused and accordingly he has advanced loan etc., but to substantiate the fact he has not produced any document before this court except his oral assertion. Thus, the complainant utterly failed to prove his monitory capacity in advancing alleged loan of Rs.10,00,000/- infavour of the accused. This creates doubt about the alleged loan transaction in between the complainant and accused and advancing loan of Rs.10,00,000/- infavour of the accused.
27. Hence, with all these reasons this court is of the opinion that the complainant is utterly failed to prove the guilt of the accused for the offence punishable under Section.138 of Negotiable Instruments Act beyond reasonable doubt. Hence, I answered Point No.1 in the Negative.
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JUDGEMENT C.C.7789/2014 28. POINT NO.2: In view of my discussions on Point
No.1 as above, I proceed to pass the following:
ORDER Acting under Section 255(1) Cr.P.C., the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and the surety bond of the accused stands cancelled.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 16th day of May-2016) (C.G. Vishalakshi) XIII A.C.M.M., Bangalore.
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : K.M. Uday Documents marked on behalf of the complainant:
Ex.P1 : Cheque
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Ex.P2 : Bank Endorsement
Ex.P3 : Legal Notice
Ex.P4 : Postal receipt
Ex.P5 : Postal acknowledgement
Ex.P6 : Complaint
Witnesses examined on behalf of the accused:
D.W.1 : Basoor Nataraj D.W.2 : D.D. Gadagi
Documents marked on behalf of the accused:
Ex.D1 : Legal notice
Ex.D2 : Reply Notice
Ex.D3 : Postal receipt
Ex.D4 : Track details issued by Postal
Authorities
Ex.D5 : Complaint
Ex.D6 : FIR
Ex.D7 : Letters
Ex.D8 : Stop payment instructions letter
Ex.D9 & 10 : Balance Certificates
Ex.D11 : To whomsoever it may concern letter
(C.G. Vishalakshi)
XIII A.C.M.M., Bangalore.