Bangalore District Court
Aged About 34 Years vs Doddakavalande Hobli on 14 June, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 14th DAY OF JUNE, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.60145/2017
Sri. K. Srikanteshwar
S/o. Sri. Kapanipathi
COMPLAINANT Aged about 34 years, No.522, 1st Main, 1st Cross,
Banashankari 3rd Stage, KG Layout, Bengaluru -
560 085.
Sri. P.S Shivarudra Swamy
S/o. Sri. K. Shivabasavadevaru
ACCUSED Doddakavalande Hobli, Nanjanagudu Taluku,
Halepura Grama, Halepura, Mysuru District.
571 312.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.60145/2017
JUDGMENT
The complainant has approached this court with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant is that, the accused was doing real estate brokering and in that process, the accused had assisted the complainant to purchase a site from one H.Shivanna in the year 2014. Due to the said fact, the accused developed good intimacy with the complainant and sought for financial assistance from the complainant to meet with financial need in connection with his Shivalankareshwar Cable Network at Halepura Village. At the request of the accused, on 24.05.2014 the complainant had lent Rs.2 lakhs to the accused and in that regard the complainant and accused entered into consent agreement dated 24.05.2014 which is valid for seven years under which the accused agreed to repay the borrowed amount of Rs.2 lakhs in a monthly installment of Rs.7,000/-. Similarly the accused again took hand loan of Rs.1 lakh from the complainant on 09.01.2015 and in that regard also they entered into consent agreement on the same day under which the accused had agreed to repay the borrowed amount of Rs.1 lakh in monthly installment at Rs.2,750/- within three years commencing from 10.01.2015 to 3 C.C. No.60145/2017 10.01.2018 to the account of the complainant. On the same day the accused had also handed over the cheque bearing No.811989 as stated in the said agreements. As per the consent agreement, the accused had paid amount up to December 2016 and thereafter stopped the compliance of the payment to be made.
3. It is further case of the complainant that, in spite of the repeated and persistent efforts made by him, the accused did not may payment as agreed. Since the accused failed to comply with the payment as per agreements, the complainant informed his intention to operate the agreed terms by presenting the cheque handed over to him by the accused along with the consent agreement dtd.01.09.2015. In that regard, he had issued notice dated 05.07.2017 by registered post and the said notice was served on the accused. Thereafter on 17.07.2017 for realizing the due amount of Rs.1,67,765/- from the accused, the complainant presented the cheque bearing No.811989 dated 17.07.2017 for the said amount drawn on the Oriental Bank of Commerce, Kuvempu Nagar branch, Mysuru for encashment through his banker - ICICI Bank, M.G. Road branch, Bengaluru. But the said cheque was returned dishonoured for the reason "funds insufficient" by memo dated 19.07.2017. Thereafter the complainant got issued legal notice dtd.24.07.2017 by RPAD to the accused calling upon him to pay the cheque amount within 10 days from the 4 C.C. No.60145/2017 receipt of the said notice. Though the accused had received the said notice on 09.08.2017 he had neither complied with the demand made therein nor issued any reply and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Accordingly on these grounds prayed for punishment to the accused and for grant of compensation with such other relief's in his favour in the interest of justice and equity.
4. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons to the accused and accordingly criminal case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was issued to him.
5. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the complainant himself is examined as CW.1 and got marked as many as 10 documents as per Ex.P1 to P10 and closed the evidence. After closure of the complainant's evidence, 5 C.C. No.60145/2017 statement of the accused U/s.313 of Cr.PC was recorded. The accused has denied the incriminating circumstances found in the evidence of the complainant as to commission of the offence alleged and the accused himself examined as DW.1 and got marked as many as four documents as per Ex.D1 to D4 and thereby evidence of the parties concluded.
7. Relying on the oral and documentary evidence placed, the learned counsel for complainant filed detail written argument. Heard the argument of the learned counsel for accused and also reply by the learned counsel for complainant.
8. On perusal of the entire material available on file and also on hearing the arguments of the learned counsels, the points that would arise for consideration are :-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt as contended?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is entitled for the relief as prayed in the complaint?
4) What Order?
6 C.C. No.60145/20179. The above points are answered as under;
Point Nos.1 to 3 : In negative,
Point No.4 : As per the final order,
for the following.......
REASONS
10. Point Nos. 1 to 3: Since point Nos.1 to 3 are inter linked and to avoid repetition they are taken together for discussion. Before peeping into the disputed facts, it is appropriate to refer the undisputed facts which can be gathered from the material placed before this court at this stage itself. On going through the rival contention of the parties, oral and documentary evidence, it is clear that both the complainant and accused are well acquainted with each other and the complainant had purchased the property measuring 2 acres 11 guntas in the name of his mother-in- law with the assistance of the accused which was registered on 05.05.2014 for which the accused is also one of the witnesses. In this regard the accused has produced certified copy of the two registered sale deeds dated 05.05.2014 as per Ex.D3 & D4 and there is no dispute in this regard. Further it is not in dispute that accused is running cable network under the name and style "Shivalinkeshwara Cable Network" and also doing real estate brokerage. In this regard, the accused has produced cable network card as per Ex.D2 in respect of which there is no dispute. Further it is 7 C.C. No.60145/2017 admitted fact that Ex.P3-cheque belonged to the accused and the same was dishonoured for the reason "funds insufficient" as put up by the complainant. It is also clear that after dishonour of the cheque, the complainant got issued legal notice to the accused. The accused has not disputed the financial capacity of the complainant. Further it is also clear that the complainant had paid Rs.10,000/- to the accused and the same is being received by the accused. However in this regard the complainant claims that it was towards brokerage commission, whereas the accused claims that the said amount was paid only to bring the property purchased to suitable condition.
11. With the above admitted facts, now the facts in issue are analyzed, as already stated the accused has denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act while recording his plea for the said offence and also denied the incriminating circumstances found in the evidence of the complainant at the time of recording his statement U/s.313 of Cr.PC. At the time of recording the plea or recording statement U/s.313 Cr.PC, the accused has not put up any positive case on his behalf except denying the case of the complainant as to commission of the offence alleged. However on going through the cross-examination of CW.1 and also evidence of DW.1, it is found that the accused has denied the monitory 8 C.C. No.60145/2017 transaction and availment of the hand loan and issuance of cheque in favour of the complainant for repayment of the amount as put up by the complainant in toto. Further the accused has also denied the service of notice on him. It is found to be a specific defence of the accused that the complainant had not paid the complete sale amount to the land owner one Mr.Somashekar from whom he had purchased the property in the name of his mother-in-law and as such the said Somashekar had taken blank signed two cheques of the accused for security purpose. But when the accused had sought for payment of his brokerage commission, the complainant and the vendor - Mr.Somashekar colluded together and to avoid the payment of commission amount by misusing the blank cheque given to the vendor, the complainant has filed the present false case though there was no any due in favour of the complainant. It is also contended by the accused that when he had demanded for his brokerage commission from the complainant and the vendor, the complainant took his signature on one blank paper and had given Rs.1 lakh. Later the complainant by putting the threat sought for repayment of the said amount from the accused. Thereafter on the advise of his father and mother, the accused had paid Rs.30,000/- to the complainant through bank and Rs.25,000/- in cash in December 2016 and remaining amount of Rs.45,000/- was paid to the complainant through 9 C.C. No.60145/2017 one Vasanth Kumar and Srikanth under whom the accused was having chit amount and thereby there was no due of the said amount also. The complainant and the vendor of the land did not pay the brokerage commission. The accused has also contended that he had no necessity to avail the hand loan as put up by the complainant and accordingly prayed for his acquittal in the interest of justice and equity.
12. It is needless to say that the proceeding U/s.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. Act is fulfilled, then it has to be presumed that the cheques were issued for discharge of the legally recoverable debt or liability. The presumption envisaged U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or 10 C.C. No.60145/2017 liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date as found therein.
13. In the light of the rival contention of the parties at the out set it is to be determined as to whether the complainant had complied with the requirements of Sec.138 of N.I. Act as contended. In order to prove the case of the complainant, the complainant being CW.1 reiterated the complaint averments in his sworn statement by way of affidavit which itself is treated as examination-in-chief in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. In addition to that the complainant has produced consent agreement dtd.24.05.2014 and 09.01.2015, cheque dtd.17.07.2017, notice dated 05.07.2017 written to the accused, bank return memo dtd.19.07.2017, office copy of 11 C.C. No.60145/2017 legal notice dtd.24.07.2017, postal receipt dtd.27.07.2017 for having sent notice to the accused by RPAD, postal acknowledgement for having service of notice on the accused, postal track consignment and bank statement summary of his account as per Ex.P1 to P10 respectively. As already stated it is admitted fact that Ex.P3-cheque is signed by the accused and belonged to him. The contents of Ex.P3 and P5 reveals that the accused had issued cheque as per Ex.P3 and the complainant had presented the said cheque for encashment through his banker - ICICI Bank, M.G. Road branch, Bengaluru and the said cheque was returned dishonoured for the reason "funds insufficient" as found in Ex.P5. Along with Ex.P3 & P5, the contents of Ex.P6 to P9 i.e legal notice, postal receipt, postal acknowledgement and postal track consignment are looked into, it is clear that after dishonour of Ex.P3-cheque as found in Ex.P5, the complainant got issued legal notice dated 24.07.2017 to the accused on 27.07.2017 intimating the dishonour of the cheque and demanding the payment of the cheque amount within 10 days from the date of receipt of the said notice. The said notice is found to be served on the accused on 09.08.2017 as put up by the complainant. Admittedly, the accused had not complied with the demand made in the said notice. The complainant had presented the complaint on 20.09.2017. Therefore on going through these documents, it is clear that the complainant had presented 12 C.C. No.60145/2017 the cheque in question within its validity and got issued statutory notice after dishonour of the cheque within statutory time and presented the complaint after lapse of 15 days from the date of service of notice on the accused and within 30 days thereafter as required under law. Therefore these documents are analyzed, they prima facie disclose as to compliance of requirements of Sec.138 of N.I. Act in filing the complaint.
14. In addition to the above documentary evidence, the complainant being CW.1 reiterated the complaint averments as to compliance of requirements of Sec.138 of N.I. Act in filing the present complaint. In this regard it is pertinent to note that the accused has denied the service of notice as stated by the complainant. So far as the service of notice on the accused is concerned, the learned counsel for the complainant has relied on Ex.P7 to P9, which clearly denotes the service of notice on the accused as put up by the complainant. The accused has contended that the signature found in the postal acknowledgement is not his signature. But it is pertinent to note that nowhere the accused has disputed his address shown in the legal notice or found in the postal acknowledgement. Even the same address is being shown in the complaint also and the summons sent by this court to the accused on the same address was also served on the accused. Therefore it is clear 13 C.C. No.60145/2017 that the accused has not disputed his address as shown by the complainant. It is needless to say that when the notice was sent to the correct address of the accused, it is deemed to be served on him. Just because, the accused has denied the service of notice it cannot be held that it was not served on him when it was sent to his correct address. Further even during cross-examination also the complainant has specifically stated as to service of notice on the accused and also the signature found in the acknowledge is that of the signature of the accused himself. Though the learned counsel for the accused cross-examined the complainant in that regard, he could not elicit anything from his mouth so as to accept the contention of the accused in this regard. Therefore the contention of the accused that notice was not served on him as put up by him cannot be accepted in any angle and this court did not find any merit in the contention of the accused as to non-service of notice as put up by him.
15. Therefore on going through the entire material available on file, their remains no doubt that the complainant had complied with all the requirements of Sec.138 of N.I. Act. This being the fact, as discussed earlier, in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available U/s.139 of N.I. Act is required to be drawn and shall presume that the accused had issued the cheque as per Ex.P3 towards 14 C.C. No.60145/2017 discharge of legally recoverable debt. It is also to be presumed that cheque was issued for consideration on the date as mentioned therein.
16. As argued by the learned counsel for the accused, it is well settled principle of law through catena of decisions that, though the statutory presumptions available U/ss.118 and 139 of N.I. Act are mandatory in nature, they are rebuttable one. It is needless to say that when the complainant proves the requirements of Sec.138 of N.I. Act and when the accused admits the cheque in question, the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the presumptions with all preponderance of probability with clear, cogent and convincing evidence though not beyond all reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts to the shoulder of the complainant. It is also well settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also well settled principle that in order to rebut the presumption it is not imperative on the part of the accused to step into the witness box and he may discharge his burden on the basis of the material already brought on record and on the basis of 15 C.C. No.60145/2017 the facts elicited in the cross-examination of the complainant. It is also equally true that, if the accused places such evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decision of the Hon'ble Apex court reported in (2006) 3 SCC (Crl.) 30 - (Tamilnad Mercantile Bank Ltd., Vs M/s.Subaiah Gas Agency and others), ILR 2009 (2) 1633 - (Kumar Exports Vs Sharma Carpets), AIR 2008 (SC) 1325 (Krishna Janardhan Bhat Vs. Dattathraya G. Hegde), 2013 SAR (CRI) 373 - (Vijay Vs Laxman and another) and AIR 2010 (SC) 1898 - (Rangappa Vs. Mohan). Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
17. In view of the defence taken by the accused, as against the claim of the complainant, now the evidence available on file is analyzed, in support of the contention of the accused, the accused himself stepped into the witness box and stated as to his contention. In addition to that he has produced four documents i.e one challan dtd.19.06.2015, cable network card, and certified copy of the sale deed dated 05.05.2014 as per Ex.D1 to D4 to support his contention.
16 C.C. No.60145/201718. As already stated so far as Ex.D2 to D4 are concerned, there is no dispute and they are found to be not helpful to the accused to establish his defence in any angle. Further though the accused has produced one challan as per Ex.D1 to show the payment of Rs.10,000/- to the complainant, once again the said document is also found to be not help in aid to the defence of the accused. Nowhere the accused has contended that he had paid Rs.10,000/- to the complainant on 09.06.2015 as found in Ex.D1 and no other available documents are produced to support Ex.D1 and to show the payment made there under to the complainant.
19. Now the first limb of the positive defence of the accused is analyzed, as already stated the accused has contended that the complainant had not paid the complete sale amount to the land owner/vendor from whom he had purchased the property in the name of his mother-in-law and as such the land owner/vendor took two signed blank cheques of the accused for security purpose. The accused has also contended that he himself had made all arrangements including collection of documents to have the sale transaction. But in this regard the documents produced by the accused himself as per Ex.D3 and D4 are looked into, they clearly go against the contention of the accused. From Ex.D3 and D4 - sale deeds, it is clear that entire sale 17 C.C. No.60145/2017 consideration of Rs.4,30,000/- (sale consideration found in two sale deeds) was paid as on the date of execution of the sale deeds at the time of registration itself. This being the fact the question of taking security cheque as put up by the accused does not arise. Therefore the contents of Ex.D3 and D4 goes against the stand taken by the accused. On the basis of Ex.D3 and D4 one can say that accused was the one of the witnesses to the said sale deeds and in that regard there is no dispute. Absolutely there is no any piece of evidence to show that the accused had issued two blank signed cheques to the land owner for the purpose of security as contended by him except his self serving statement. Therefore this defence of the accused has to fail and that cannot be accepted.
20. The second limb of the positive defence of the accused is that when the accused had demanded for his brokerage commission from the complainant and the vendor, the complainant took his signature on one blank paper and had given Rs.1 lakh and later the complainant by putting threat sought for repayment of the said amount and the accused had paid Rs.30,000/- to the complainant through bank and Rs.25,000/- in cash in December 2016 and remaining amount of Rs.45,000/- through one Vasanth Kumar and Srikanth under whom he was having chit amount and thereby there was no due of the said amount also. This 18 C.C. No.60145/2017 version of the accused is concerned, once again except oral assertion of the accused, there is no any supporting material placed before this court. It is also interesting to note that this version of the defence was not even put to the mouth of the complainant during his cross-examination. Though the accused has claimed the payment of Rs.30,000/- to the complainant through bank, he has not produced any document to support the same. Though the accused has produced one challan as per Ex.D1 that does not disclose payment of Rs.30,000/- to the complainant. Mere production of challan without any other available document it cannot be held that as per Ex.D1 the accused had paid any amount to the complainant. Further the complainant had not produced any piece of document before this court to show the payment made in cash as stated by him in his evidence for the first time. Therefore the said contention of the accused cannot be accepted and the same is found to be only after thought without any basis.
21. As discussed above, the positive defences put up by the accused as against the claim of the complainant are found to be without any basis and the same are not acceptable in any angle. It is also to be noted that though the accused had contended that the complainant and the vendor of the land colluded together and to avoid payment of brokerage commission the complainant has filed this case, 19 C.C. No.60145/2017 absolutely there is no convincing and acceptable evidence so as to accept the contention of the accused. It is also interesting to note that admittedly the accused had received Rs.10,000/- from the complainant after purchasing of the property by the complainant. But the accused has contended that he had received Rs.10,000/- from the complainant for developing the property purchased by the complainant and not towards commission amount. But absolutely there is no material before this court to accept the said contention of the accused. Hence viewed from any angles this court found no substance in the positive defence put up by the accused.
22. The learned counsel for the accused vehemently argued contending that if at all any amount is due from the accused the only remedy available to the complainant is civil remedy for recovery of the due amount and in the light of the contents of Ex.P1 and P2 the present complaint is prematured. The complainant has to wait till expiry of time prescribed in Ex.P1 and P2 and in view of the Ex.P1 and P2 it cannot be held that there existed legally recoverable due as on the date of presenting the cheque by filling up the same by the complainant himself. On the other hand during the course of reply the learned counsel for the complainant relying on Ex.P4-notice, meticulously argued that the complainant has followed the principle of natural justice and 20 C.C. No.60145/2017 issued notice to the accused intimating his intention to use of the cheque given by him at the time of agreement and thereafter only in spite of service of notice since the accused had not responded to the same, the complainant had filled up the cheque with respect of due amount and thereby it is clear their exist legally recoverable due from the accused.
23. Admittedly, the claim of the complainant is rooted on the basis of Ex.P1 and P2-consent agreements. So far as these two documents are concerned, the defence of the accused is found to be inconsistent as to its execution. In one breath, the accused admitted the execution and in another breath denied the very execution of the said documents. It is pertinent to note that during cross- examination of CW.1, the accused has specifically contended that as per the terms of Ex.P1 the accused had paid the amount and the complainant has produced the said document before this court though its time was not expired. Similarly, so far as the Ex.P2 is concerned, the accused has contended that when he had asked his commission amount with the complainant and his vendor, the complainant had given Rs.1 lakh and at that time the complainant took his signature on the blank paper. Further the said blank signed paper is being misused by the complainant for getting Ex.P2. But these versions of the accused are concerned, absolutely there is no convincing and acceptable evidence. It is 21 C.C. No.60145/2017 pertinent to note that the evidence of the accused himself during the course of cross-examination reveals that he had taken Rs.1 lakh from the complainant. Though the accused has contended that he had repaid the said amount to the complainant, he has not produced any evidence to support the payment made as put up by him. Similarly, Ex.P1 is concerned, accused himself is admitted contending that he had paid the amount in terms of that agreement. But there is no scrap of paper to show that the accused had made payment as put up by him. Though the accused contended that he had not executed Ex.P1 and P2 as found therein this court did not find any substance in his contention. It appears that the accused is intended to suppress the real fact in that regard. Therefore viewed from any angles, the contention of the accused as to non-execution of Ex.P1 and P2 and creation of Ex.P2 by the complainant by misusing the blank paper signed by the accused cannot be accepted. Further Ex.P2 is found to be in e-stamp paper and the said stamp paper was purchased by the accused himself. Therefore getting the signature of the accused in blank paper and creating Ex.P2 on e-stamp paper does not arise. The accused has not denied his signature found in Ex.P1 and P2. Hence this court did not find any substance in the contention of the accused attacking Ex.P1 and P2 as stated by him.
22 C.C. No.60145/201724. As already stated the claim of the complainant is found to be based on Ex.P1 and P2 and Ex.P3-cheque is found to be issued under Ex.P2. It is admitted fact that the complainant himself filled-up the cheque subsequent to issuance of Ex.P4-notice with regard to the due amount claimed in the said notice. Therefore one thing is very certain that Ex.P3-cheque was blank at the time when it was issued along with Ex.P2. The contents of Ex.P2 makes it very clear that Ex.P3-cheque was given in advance as security with regard to Ex.P2 transaction. In the light of the argument addressed now the contents of Ex.P1 and P2 are analyzed, Ex.P1 reveals payment of Rs.2 lakhs and Ex.P2 reveals payment of Rs.1 lakh to the accused as put up by the complainant. Further it is clear that the accused had agreed to pay Rs.2 lakhs in monthly installments at Rs.7,000/- and Rs.1 lakh in monthly installment at Rs.2,750/-. The contents of Ex.P1 and P2 further denote that the period for payment in Ex.P1 is for a period of seven years from the date of said agreement and payment under Ex.P2 is for a period of three years i.e from 10.01.2015 to 10.01.2018. It is further clear from the contents of Ex.P1 that the said agreement shall be inforce for the period of seven years and after completion of the said period only with the consent of both parties the said agreement could be annulled. If any violation of the terms of the said agreement, then the 2nd party i.e complainant is entitled to 23 C.C. No.60145/2017 file a suit in the court for appropriate remedy. Similarly the contents of Ex.P2 reveals that the said agreement shall be inforce from the 10.01.2015 to 10.01.2018 and after completion of the said period the accused has to pay Rs.1 lakh to the complainant. Further, if the accused fails to pay the amount as stated in the agreement, the said agreement shall be continued for a period of three years and neither the complainant nor the accused are entitled to cancel the agreement. If any of them violate the agreement, then the affected party is entitled to file a suit in accordance with law.
25. The above terms of Ex.P1 and P2 are analyzed, it is clear that with regard to Ex.P1, the accused had not given any cheque in favour of the complainant and the intention of the party as found from the said document is that the said agreement shall be enforce for a period of 7 years and in case if the amount is not paid in terms of the agreement, then only remedy available to the complainant is file the suit. However under Ex.P2 the accused had issued cheque in question as security only. As already stated the evidence on record makes it very clear that it was blank when it was given to the complainant and later the complainant himself has filled-up the cheque basing on Ex.P4 -notice. However it is pertinent to note that the contents of Ex.P2 also make it very clear that in case of any violation of the terms of the agreement the only remedy available to the complainant is 24 C.C. No.60145/2017 to file the suit in that regard. Either Ex.P1 or P2 does not authorize the complainant to use the cheque which was given along with Ex.P2. Even the contents of Ex.P2 are analyzed, it is clear that it is not the intention of the parties use the said cheque prior to the completion of the period fixed in Ex.P2. Further under Ex.P2 cheque was given as a security for the amount stated in Ex.P2 only and not with regard to the amount stated in Ex.P1. No doubt, the complainant had issued notice as per Ex.P4 intimating the accused as to due amount including interest on the basis of Ex.P1 and P2 and presented the cheque in question for encashment of the due amount. But the contents of Ex.P1 and P2 do not allow the complainant in that regard. The only remedy available under Ex.P1 and P2 is to file a suit in accordance with law. Further as already stated on the basis of the cheque given to the complainant under Ex.P2, the amount due under Ex.P1 cannot be recovered by recovering to the provisions of Sec.138 of N.I. Act. No doubt the complainant could have used the cheque which was given under Ex.P2 for security purpose with regard to the due amount under Ex.P2 only that too after lapse of period prescribed in the said agreement. In the light of the specific terms stated in Ex.P1 and P2, the complainant cannot make use of the security cheque for recovery of the due amount just by issuing notice as per Ex.P4. Therefore in the light of the contents of Ex.P1 and P2, this court found the substance 25 C.C. No.60145/2017 in the argument addressed by the learned counsel for the accused. The matter would have been different to some extent if the security cheque was used by the complainant for the amount stated in Ex.P2 after expiry of the period prescribed there under. Therefore in the light of Ex.P1 and P2, though their exist any due in favour of the complainant from the accused, then the only remedy available to the complainant file a suit for recovery of the due amount and not the prosecution U/s.138 of N.I. Act.
26. Thus for the reasons discussed above, this court is of the considered view that, though the complainant has made out all the ingredients of Sec.138 of N.I. Act and entitled for the presumption U/s.139 and 118 of N.I. Act and though the accused has failed to put-up acceptable evidence so as to accept or probabalize his defence as put up by him, in the light of the contents of Ex.P1 and P2 the prosecution U/s.138 of N.I. Act is found to be not maintainable. The only remedy available to the complainant is to file a civil suit for recovery of the due amount in accordance with law. The complainant could have used the cheque state in Ex.P2 for recovery of the due amount under Ex.P2 only, only after expiry of the period stated in Ex.P2 after issuing notice, if he feels so. Therefore this court is of the considered view that the prosecution launched by the complainant is not maintainable and the cheque in question cannot be 26 C.C. No.60145/2017 construed as the cheque issued for discharge of due amount as stated by the complainant. Therefore Point Nos.1 & 2 are required to be answered in negative. It is needless to say when the point Nos.1 & 2 are to be answered in negative, then it goes without saying that the complainant is not entitled any relief as sought in this complaint. Hence, point Nos.1 to 3 are required to be answered in negative and answered accordingly.
27. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following....
ORDER Acting under Section 255(1) of Cr.PC accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bond of accused and that of his surety stands cancelled.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 14th Day of June, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 27 C.C. No.60145/2017 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. K. Srikanteshwar
Witnesses examined for the defence:
DW.1 : Sri. Shivarudraswamy
Documents marked for the complainant:
Ex.P1 & P2 : Notarized Consent Agreement Deed
Ex.P3 : Cheque
Ex.P4 : Letter dated 5.7.2017
Ex.P5 : Bank endorsement
Ex.P6 : Legal Notice
Ex.P7 : Postal receipt
Ex.P8 : Postal acknowledgement
Ex.P9 : Postal internet tracking document
Ex.P10 : ICICI Bank statement
Documents marked for the defence:
Ex.D1 : Deposit slip
Ex.D2 : Cable network card
Ex.D3 & D4 : Certified copies of sale deed
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU