Bangalore District Court
Sri.D.R.Ramakrishna Rao vs Sri.Arun on 17 November, 2018
1 C.C.No.15771 /2016 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 17th day of November, 2018
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.15771/2016
Complainant : Sri.D.R.Ramakrishna Rao,
S/o.D.S.Ram Rao,
Aged about 72 years,
Resident of No.609,
OM Shree Residence,
2nd Block, 014, Ground Floor,
Uttarahalli,
Bengaluru - 560 061.
Since Dead by his LR's
Sri. R.Ganesh Prasad.
(Rep. by Sri.Srirangaiah.L and
another, Advs.,)
- Vs -
Accused : Sri.Arun,
S/o Sri.P.V.Raghavendra,
Residing at No.14, BDA,
No.448 - A,
Near Halli Roti, 2nd Main,
SBM Colony,
Near Chiranjeevi Hospital,
Bengaluru.
(Rep. by Sri.B.S.Lakshmisha and
others, Advs.,)
2 C.C.No.15771 /2016 J
Case instituted : 11.7.2016
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 17.11.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the father of the Accused and he is friends. The Accused was also having good relationship with him. The Accused had approached him to lend him a hand loan of Rs. 18,50,000/= to meet his business, which was being run in the name of MODI CARE ENTERPRISES.
3. Considering the request of the Accused, he lent Rs.18,33,000/= to him for the improvement of his business. accordingly the Accused executed an agreement on 15.10.2015 by acknowledging the debt and he has issued four post dated cheques vide No. 760953, 760954, 760955 and 760956 for Rs.4,58,250/= each drawn on the SBM of SBM Colony Branch, Bengaluru. At the time of receiving the debt, the Accused had promised of repaying 3 C.C.No.15771 /2016 J the same within agreed period and assured him to present the cheques on their due dates. After the completion of the agreed period, when he approached the Accused and sought for the repayment of the loan amount, he instructed him to present the cheques for realization.
4. The Complainant has submitted that, thereafter as per the instructions of the Accused, when he presented the said cheques for encashment through his banker, the same acme to be returned dishonored as "Payment stopped by Drawer" vide Bank Endorsement dated 17.5.2016. Thereafter when he approached the Accused and informed him about the same and requested him to repay the loan with interest, the Accused behaved like a cheater and the former came to know that the Accused had also lodged a complaint against him before the Thyagarajanagar Police Station. The police summoned him and enquired him and finally realized the act of cheating of the Accused. Hence they directed him to him cheque bounce case against the Accused.
5. The Complainant has submitted that, thereafter left with no other alternative, he got issued a legal notice to the Accused through RPAD on 11.6.2016 calling upon him to pay the cheques amount to him within 15 days from the date of the receipt of the said legal notice and though after 4 C.C.No.15771 /2016 J the service of the same to him, the Accused has issued an untenable reply to him, he has not paid the cheques amount to him. Hence the present complaint.
6. The Complainant submits that, the dishonour of the cheques by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that he be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
7. The Complainant has led his pre-summoning evidence by having filed his affidavit-in-lieu of his sworn statement, in which, he has reiterated the complaint averments.
8. In support of his evidence, C.W.1 has produced and relied upon the documentary evidence at Ex.C1 to C12, which is, as follows:-
Ex.C1 to C4 are the Original Cheques dated 11.5.2016, in which the signatures identified by C.W.1 as those of the Accused are as per Ex.C.1(a) to C4(a) respectively, the Bank Memos as per Ex.C5 to C8 respectively, the office copy of the Legal Notice as per Ex.C9, the Postal Receipt as per Ex.C10, the Postal Acknowledgement as per Ex.C11 and the Reply Notice as per Ex.C12.5 C.C.No.15771 /2016 J
9. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
10. The Accused has appeared before the court and he has been enlarged on bail. The substance of the accusation has been read over to him, to which he has pleaded not guilty and has stated that he has the defence to make.
11. It is seen that during the pendency of the proceeding the Complainant expired and hence his LR's have come on record and have proceeded with the case.
12. During the stage of the post-summoning evidence, the son of the Complainant, being his Legal heir has examined him P.W.1 and he has filed his affidavit, in which he has reiterated the complaint averments.
13. P.W.1 has produced the Death Certificate of his father as per Ex.P13.
14. P.W.1 has been cross-examined by the learned Defence Counsel.
6 C.C.No.15771 /2016 J15. During the cross-examination of the Complainant, the following document has been marked through him:-
1. The Photocopy of the Agreement dated 15.10.2015 as per Ex.N1;
2. The original Agreement dated 15.10.2015 as per Ex.N2;
3. The three original deposit challans dated 20.1.2016, 21.12.2016 and 20.2.2016 for Rs.50,000/= each of Karnataka Bank, Srinagar Branch, Bengaluru as per Ex.D1 to D3 respectively;
4. The office copy of the complaint dated 19.3.2016 as per Ex.D4;
16. The statement of the Accused as required under Sec. 313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence found against him and has chosen not to lead his rebuttal evidence.
17. Despite given sufficient opportunities, the counsel for the Complainant has not addressed his arguments. The learned Defence Counsel has filed his written arguments. I have perused the record carefully.
7 C.C.No.15771 /2016 J18. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
19. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".8 C.C.No.15771 /2016 J
20. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
21. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
22. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
23. It is a well settled position of law that, the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be brought on 9 C.C.No.15771 /2016 J record for getting the benefit of shifting the onus of proof to the Complainant.
24. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
25. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
10 C.C.No.15771 /2016 J26. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
27. Admittedly there is no dispute between the parties with regard to the acquaintance between them, as well as with regard to the existence of the loan transaction between them. However there is a serious dispute with regard to the quantum of such loan transaction, since according to the Complainant, it is to the tune of Rs.18,33,000/=, while according to the Accused it is only to the tune of Rs.6 Lakhs, out of which, a sum of Rs.2 Lakhs is claimed to have been repaid by him as shown in the documents at Ex.N1 and N2 and that he is due to pay only the balance of Rs.4 Lakhs to the Complainant.
28. It is not in dispute that the Accused has repaid some amounts to the Complainant as shown in Ex.N1 and N2, which are reported to have been received by the Complainant in pursuance of such payments made to him by the Accused through Bank deposits as per Ex.D1 to D3. However the son of the Complainant/P.W.1 has taken inconsistent stands with regard to the documents at Ex.N1 and N2 and also the actual amount said to have been 11 C.C.No.15771 /2016 J repaid by the Accused to his father as endorsed on the said documents.
29. Further it is not in dispute that the cheques in dispute relate to the account of the Accused, though according to him, they relate to the joint account of him and his wife and that he has issued them to the Complainant and that they contain his signatures.
30. However there is a dispute between the parties about the purpose, for which, the said cheques were issued by the Accused to the Complainant, since according to the latter (Complainant), they were issued by the former (Accused) to him towards the repayment of his loan, while according to the Accused, they were issued by him to the Complainant only for security purpose.
31. Therefore, in view of such serious rival contentions taken by both the parties, it is necessary to appreciate the material on record carefully.
32. In this regard, it is pertinent to note that, there is no dispute in so far as the compliance of the ingredients of Sec.138 of the N.I.Act by the Complainant is concerned. It is seen that, in pursuance of the service of the Legal notice, the Accused has come up with his defence through his 12 C.C.No.15771 /2016 J reply notice, which is the defence first in point of time, as per which, his defence is that the claim of the Complainant about the alleged loan transaction of Rs.18,33,000/= is entirely false. That, he was the tenant under the Complainant and that at time, the Complainant wanted to save tax to be payable by him to the Government on the income that he had earned by the sale of some property and that for the same reason, he had asked the former to execute the formal agreement so as to avail the tax benefit. In view of such assurance he signed on the false agreement and that though he resisted to sign in the said document, since the amount was shown as Rs.18,33,000/=. But he was threatened so as to sign the same. That the Complainant had also collected some cheques from him so as to show that he had the receivables and the cheques in dispute relate to the joint account of him and his wife and as such the same could not be presented with only one signature. That the Complainant who had assured that the said cheques was collected by him only for formal sake and that the same were not to be presented the bank.
33. The main defence of the Accused is that, he had borrowed a sum of Rs.6 Lakhs from the Complainant and that out of the said loan, he has already cleared Rs.2,00,000/= by depositing the same to the account of the latter and that thereafter the Complainant started 13 C.C.No.15771 /2016 J blackmailing him and his wife and also used to make threatening calls to him and to his wife. In view of the same, his wife lodged a complaint against the Complainant before the police.
34. That, anticipating the misuse of his cheques, he gave stop payment instructions to his banker and as such he is not liable for the offence punishable under Sec.138 of the N.I.Act.
35. It is seen that, in the light of the aforesaid defence of the Accused, when P.W.1 has been cross-examined, the main line of cross-examination is on the basis that, there existed no loan transaction of Rs.18,33,000/= as claimed by the Complainant and that the Complainant had no financial capacity to lend a loan to the tune of Rs.18,33,000/= to the former.
36. In this regard, it is pertinent to note that, admittedly there is no pleading with regard to the date on which the Accused is said to have approached the Complainant seeking a loan of Rs.18,50,000/= or Rs.18,33,000/= and the date of the alleged lending of any such loan amount by the Complainant to the Accused and also the alleged purpose of the loan being for the Modicare Enterprises business.
14 C.C.No.15771 /2016 J37. No doubt this court is conscious of the fact that the Accused has admitted his loan transaction with the Complainant, though only to the tune of Rs.6 Lakhs. however considering the total amounts covered under the subject cheques, the omission on the part of the Complainant to have pleaded about the date of approach by the Accused to him seeking loan, the date of the alleged lending of the loan by him to the Accused and the purpose for which such loan is alleged to have been lent by him to the Accused cannot be considered to be a minor lapse on his part. As such, this is a serious omission in the case of the Complainant.
38. Moreover it is pertinent to note that, it is clearly elicited from the son of the Complainant/P.W1 that as per the hand written entries found on page No.2 of Ex.N1, a sum of Rs.50,000/= each is deposited by the Accused to the account of his father vide account No.0992500102421901.
39. It is interesting to note that, P.W.1 has also admitted the suggestion that, as per the Deposit challans as per Ex.D1 to D3, the Accused has deposited a total sum of Rs.1,50,000/= to the account of his father on 20.1.2016, 21.12.2015 and 20.2.2016 respectively.
15 C.C.No.15771 /2016 J40. It is relevant to note the conduct of P.W.1 wherein when he was confronted with the original deposit challans as per Ex.D1 to D3, he admitted the payment made by the Accused to his father as per the said challans and he had also admitted that Ex.N1 is the copy of the loan agreement that was executed by the Accused to his father and that there is no recital in the said agreement about the alleged approach by the Accused to his father seeking a loan of Rs.18.5 Lakhs.
41. Likewise it is also interesting to note that, initially P.W.1 had also admitted that his father has signed on Ex.N1 for having received the amount of Rs.50,000/= each on three occasions from the Accused and he had also identified the signature of his father in the said document.
42. However P.W.1 clearly contradicted in his stand during his further cross-examination, during when he was confronted with the original copy of the agreement as per Ex.N2. it is pertinent to note that though the documents at Ex.N1 and N2 are the same documents, except the fact that the first of it was the photocopy, while the second of it being the original, the conduct of P.W.1 in having denied the execution of the said document by the Accused in favor of his father goes to show that, after his initial cross- examination and the admissions elicited from him with 16 C.C.No.15771 /2016 J regard to the document at Ex.N1, P.W.1 has got alerted and intentionally started taking inconsistent stand about the document at Ex.N2. Therefore this would also create a serious doubt about the case of the Complainant.
43. Moreover it is also relevant to note that, it is also elicited from P.W.1 that, except the cheques, he has not produced any other document to show that his father had lent Rs.18,33,000/= to the Accused and moreover it is also elicited from him that, he has not produced any document to show that his father had the capacity to lend the loan to the Accused.
44. It is relevant to note in this regard that, merely because the Accused has admitted his loan transaction with the Complainant to the tune of Rs.6 Lakhs, the inference that should be drawn is that even the alleged loan transaction of Rs.18,33,000/= stood proved.
45. Moreover the conduct of the Complainant in not having pleaded about the receipt of the amounts from the Accused as per Ex.D1 to D3 also goes to show that, he is guilty of suppression of material facts. However it is pertinent to note that, in this regard, P.W.1 has offered an explanation that the Accused had told his father that after the cheque in dispute for Rs.18,33,000/= was cleared, his 17 C.C.No.15771 /2016 J father could retain the balance amount after returning Rs.1,50,000/= to him. However it is elicited from P.W.1 that, he has not pleaded this fact either in the legal notice or in the complaint or in his affidavit. Therefore the aforesaid explanation offered by P.W.1 goes to show that this is case of clear improvement on the part of P.W.1 and as such the same cannot be accepted by this court.
46. It is further pertinent to note that, though the documents at Ex.N1 and 2 are produced from the side of the Accused only, admittedly the Accused has not admitted the execution of the said document. On the contrary, it is the specific defence of the Accused that, his signatures to the said document were collected from him by threatening him.
47. No doubt in such circumstance, the common doubt that arises in the mind of this court is about the steps that the Accused has taken against the Complainant in this regard.
48. Interestingly, the answer to the above said question is that admittedly the cheques in dispute are returned dishonored as "Payment stopped by drawer" as per the cheqeu return memos at Ex.C5 to C8. Interestingly there is no dispute on the part of the Complainant as well 18 C.C.No.15771 /2016 J to the said cheques return memos. Therefore this factor would also probablise the defence of the Accused.
49. Another point to be noted is that, the Accused has also taken up the defence that the cheques in dispute relate to the joint account of him and his wife and that the Complainant has produced the same with the signature of only one of the joint account holders and as such, the same would amount to cheating. However there is no necessity to discuss much on this aspect, since the cheques in dispute are returned as "Payment stopped by Drawer" and not for any other reason. In such circumstance, the defence of the Accused that the cheques in dispute bear only signatures and not the signatures of his wife, who is said to be the other joint account holder pertaining to the account relating to the cheques in dispute.
50. Moreover when the Accused has come up with a specific defence through the reply notice at Ex.C12, there is no rejoinder to the same caused by the Complainant. Therefore the defence of the Accused that the subject cheques were issued by him to the Complainant only for security purpose deserves to be believed by this court.
19 C.C.No.15771 /2016 J51. Therefore, the appreciation of the evidence on record clearly goes to show that, the LR of the Complainant has failed to prove the case beyond reasonable doubt and the case of the Complainant also suffers from omissions, contradictions and suppression of material facts. On the contrary, the Accused has successfully rebutted the presumptions available in favour of the Complainant u/Sec.118 and 139 of the N.I. Act. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-
conferred u/Sec. 255(1) of Cr.P.C.
the Accused is hereby acquitted of the offence punishable u/Sec.138 of Negotiable Instruments Act.
The bail bond and the surety bond stands discharged.
(Dictated to the Stenographer online, directly typed by her on the computer, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 17th day of November, 2018).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.R.Ganesh Prasad;
20 C.C.No.15771 /2016 J
2. List of documents exhibited on behalf of the
Complainant:-
Ex.C.1 to C4 : Original Cheques;
Ex.C.1(a) to : Signatures of the Accused;
C4(a)
Ex.C.5 to C8 : Bank Memos;
Ex.C.9 : Office copy of the Legal Notice;
Ex.C.10 : Postal Receipt;
Ex.C.11 : Postal Acknowledgement;
Ex.C.12 : Reply Notice;
Ex.P.13 : Death Certificate of the Complainant.
3. List of witness/s examined on behalf of the Accused:-
- Nil -
4. List of documents exhibited on behalf of the Accused:-
(Marked through P.W.1):-
Ex.D.1 to D3 : Bank Deposit Challans;
Ex.D4 : The office copy of the complaint dated
19.3.2016;
Ex.N1 : The Photocopy of the Agreement dated
15.10.2015;
(Marked only for identification purpose) The original Agreement dated Ex.N2 : 15.10.2015.
(Marked only for identification purpose).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.21 C.C.No.15771 /2016 J
17.11.2018 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power-conferred u/Sec.255(1) of Cr.P.C. the Accused is hereby acquitted of the offence punishable u/Sec.138 of Negotiable Instruments Act.
The bail bond and the surety bond stands discharged.
XVI ACMM, B'luru.