Bangalore District Court
S/O Late.Doddaiah vs S/O Keriyappa Mallabadi on 16 May, 2022
KABC020109432019
1 C.C.No.2421/2019
SCCH-26
BEFORE THE COURT OF XXIV ADDITIONAL SMALL CAUSES JUDGE
AND THE MOTOR ACCIDENT CLAIMS TRIBUNAL & A.C.M.M.
(SCCH26) AT BENGALURU
DATED THIS THE 16th DAY OF MAY 2022
PRESENT: SRI.R.MAHESHA. B.A.,L, LLB.,
XXIV ADDL. SCJ &
ACMM & MEMBER MACT
BENGALURU.
1. Sl. No. of the Case CC.No.2421 of 2019
2. The date of 01092021
commencement of
evidence
3. The date of closing 17032022
evidence
4. Name of the Sri.Shivamurthy
Complainant S/o Late.Doddaiah
Aged about 55 years
R/at No.16, Chord road,
Doddaiah compound,
Deepanjali nagar
Mysore road
Bangalore560 026
(By Sri.A.N.Advocate)
5. Name of the Mallabadi Mallappa @ Mallu K.Mallabadi
Accused S/o Keriyappa Mallabadi
Aged about 38 years
Residing at No.11/20
KABC020109432019
2 C.C.No.2421/2019
SCCH-26
3rd floor, Gowramma building
8th cross, 2nd main
Deepanjali nagar,Mysore road,
Bangalore560026
(By Sri.G.W.Advocate)
6. The offence U/s.138 of the Negotiable Instruments Act
complained of
7. Opinion of the Accused found not guilty
judge
JUDGMENT
The complainant filed this complaint Under Section 200 of Cr.P.C against the accused alleging that the accused has committed the offence punishable Under Sec.138 of the Negotiable Instruments Act, 1881. (In short for N.I.Act)
2. The brief facts of the complainant case is as under:
The accused has approached the complainant and borrowed a hand loan of Rs.4 lakhs on 422017 from the complainant and agreed to repay KABC020109432019 3 C.C.No.2421/2019 SCCH-26 the above said hand loan within 2 years. That the accused has issued a cheque bearing No.043268 dated 2822019 for a sum of Rs.4 lakhs drawn on SBM, Talikote branch, Talikote586214 and requested to present the said cheque on 132019. That the complainant presented the said cheque on 132019 to the bank,but the said cheque came to be dishonoured for the reasons Insufficient funds on 232019. That the complainant issued legal notice to the accused on 1532019, but the accused did not repaid the due amount to the complainant. Hence filed this complaint.
3. After filing of this complaint, case was registered as P.C.R. and sworn statement of the complainant was recorded. Thereafter cognizance was taken and registered in Crl.Reg.No.III and summons issued to the accused. In response of summons, accused appeared through his counsel and got enlarged him on bail. The plea was recorded, read over and explained to the accused he pleaded not guilty and claims to be tried. Hence the case is posted for complainant evidence. After completion of trial, 313 statement of accused recorded, KABC020109432019 4 C.C.No.2421/2019 SCCH-26 he claims to lead defence evidence, afterwards accused himself examined as DW1.
4. In order to establish its case, the complainant got examined himself as PW1 and got marked 7 documents as ExP1 to 7. The accused got examined himself as DW1 and got marked ExD1 to 6.
5. Heard oral arguments from both counsel.
6. Upon perusal of the material placed on record, the following points arise for my consideration: POINTS
1. Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt as contended by him?
2. Whether complainant proves that the accused has committed the offence punishable under Sec.138 of NI Act?
3. Whether the complainant is entitled for the relief as prayed in the complaint?
4. What order?
KABC020109432019 5 C.C.No.2421/2019 SCCH-26
7. My answer to the above points is as follows : Point No.1 to 3 :In the Negative Point No.4 : As per final order for the following : REASONS
8. POINT NO.1 to 3 : Since these points are interlinked and to avoid repetition they are taken together for common discussion. Before peeping the disputed facts it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the complainant and accused both known to each other, the complainant averred in the complaint he advanced hand loan of Rs.4 lakh during the restricted period of demonetization of money vide order from Government of India dt.8112016. As per complaint averments complainant advanced hand loan of Rs.4 lakhs to accused on 422017. The cheque in question is belongs to accused bank account and bear signature is belongs to accused. The cheque in question on presentation for collection of money got dishonoured for the reasons KABC020109432019 6 C.C.No.2421/2019 SCCH-26 of Insufficient Funds. The complainant sent legal notice to accused through registered post acknowledgment due the said notice duly served on accused on 1832019. Accused did not opt to send reply to notice issued by complainant.
9. With above admitted facts, now the facts in issue are analyzed, as already stated the accused has denied the entire case of the complainant company as to commission of the offence punishable under section 138 of NI Act. While recording her plea for the said offence and also accused has denied the incriminating circumstance found in the evidence of the complainant. At the time of recording of her statement under section 313 of Cr.P.C., The accused mainly denied the claim of complainant company, on going through the crossexamination of PW1, it is clear that in addition to the total denial of the case of the complainant company, the accused has specifically contended that he does not know about complainant, he knew about complaint filed against him. It is the specific defence of the accused that he went to bank for KABC020109432019 7 C.C.No.2421/2019 SCCH-26 purchasing motor cycle to get loan from bank. The bank employees stated that to sanction loan they required cheques of accused. Therefore he took his cheque and filledup particulars and again he went back to the bank, again bank officials stated they required 3 months bank statement of accused. Afterwards, accused wife advised to accused no necessary to get motor cycle on loan. Therefore he leave to purchase motor cycle from bank. The filled cheque which is took for bank for purchasing motor cycle he kept in his house, accused wife and complainant and another one Teacher Saraswathi have conducted chit business, the cheque in question issued by accused wife to chit business without knowledge of accused. The complainant sent legal notice to accused. After accused knew about issuance of cheque to one Shivmurthy, he enquired his wife and she admitted that she took signed cheque of accused and handed over to Shivmurthy and she advised to accused not replied to the notice sent by complainant. Therefore he not replied to the notice sent by complainant. After some time, there is a galata took place in the house of accused regarding issuance of his signed KABC020109432019 8 C.C.No.2421/2019 SCCH-26 cheque to the Shivmurthy for the chit transaction purpose, he called his elders, they spoke with each other, the elders of accused family advised to solve the problem between accused and his wife. He immediately went to Bytarayanapura police station to lodge complaint against his wife, but they not received his complaint, because the complainant's brother one Nanjaiah was police officer in Bytarayanapura police station. Immediately he went to complainant's house and make galata, afterwards, complainant and accused wife talked each other and accused wife left accused house. Afterwards he enquired one teacher Saraswathi regarding disputed cheque, she stated to accused that complainant and accused wife having illicit relation, after some time, he received divorce notice from his wife, he replied to said divorce notice which is sent by his wife. The cheque in question not issued by accused, he did not took any hand loan from complainant as alleged in the complaint. Therefore, on the above objections the accused seeking the present complaint is not maintainable and liable to be dismissed in limine.
KABC020109432019 9 C.C.No.2421/2019 SCCH-26
10. It is needless to say that the proceeding under section 138 of NI Act is an exception to the general principle that the accused is presumed to be innocent until the guilty is proved beyond all reasonable doubt. In the proceedings initiated under section 138 of NI Act, proof beyond all reasonable doubt is subjected to presumption envisaged under section 139 of NI Act. Once the requirement of Sec.138 of NI Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged under Sec.139 of NI Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of NI Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa V/s Mohan reported in AIR 2010 SC (1898) by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishnajanardhana Bhat V/s Dattareya G. Hegde reported in AIR 2008 SC (1325) it was held that "existence of legally recoverable debt or liability is a matter of presumption under section 139 of NI Act". The Hon'ble Apex Court disapproved the principle laid down in KABC020109432019 10 C.C.No.2421/2019 SCCH-26 Krishnajanardhana Bhat case that "initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshmi Naryana V/s 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 the Hon'ble Apex Court in Crl. Appeal No.803/2018 Krishna Rao V/s Shankare Gowda reported in 2018(7) SCJ 300 reiterated the above principle further as provided under Sec.118 it is to be presumed that the cheque in question was issued for consideration on the date found therein.
11. In the light of the rival contention of the parties at the outset it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of NI Act as contended. In order to prove the case of the complainant, he himself examined as PW1 and he reiterated the complaint averments in his examinationinchief by way of affidavit and got documents marked as ExP1 to 7. On the other hand accused himself examined as DW1 and he produced ExD1 to 6. In addition to KABC020109432019 11 C.C.No.2421/2019 SCCH-26 that the complainant has produced ExP1cheque dated 28022019 which is issued by accused in favour of complainant for a sum of Rs.4,00,000/. ExP2bank endorsement dt.232019, ExP1 returned for the reasons Funds Insufficient on 132019. ExP3legal notice dated 15032019 issued by complainant to accused. ExP4 and 5 two postal acknowledgments, ExP6 and 7two postal track reports.
12. On perusal of complainant oral and documentary evidence, it is clear that the complainant had presented the cheque for encashment within its validity, got issued statutory notice in time and presented the complaint within the prescribed period. So it is clear that complainant complied statutory requirements of presenting cheque, issuing notice and presenting complaint well in time.
13. In order to prove the case of complainant himself examined as PW1 and he produced ExP1 to 7 and he subjected cross examination by accused. It is elicited during course of cross examination that the complainant having books shop at court complex, Bangalore, the accused KABC020109432019 12 C.C.No.2421/2019 SCCH-26 had his house near to house of complainant. Therefore the accused came to his contact since 8 to 9 years i.e, since 2015. Further PW1 stated during course of cross examination that through one Saraswathi Anganavadi teacher accused came to his contact. The said Saraswathi was stayed in complainant's sister's house. Therefore both have came to complainant contact. He denied the suggestion of accused that he does not know accused wife one Girija and through Saraswathi Anganawadi teacher, accused wife came to contact to complainant. Further PW1 denied the suggestion of accused that Girija and Saraswathi are working in same anganawadi as a teacher and assistant in Bapuji nagar, Harafath Anganawadi. Further PW1 denied the suggestion of accused that he doing chit business in the year 2011. Accused wife had chit group member in the chit carried by complainant. Further PW1 denied that accused wife paid chit amount of 7 to 8 months. Further PW1 denied one Girija took Rs.50,000/ hand loan from complainant. The present cheque in question handed over (signed cheque of accused) by one Girija to the complainant. Further it is elicited during course of cross KABC020109432019 13 C.C.No.2421/2019 SCCH-26 examination that the complainant doing book selling business from 1984 in the name and style of Prashanth Law books, he did not took licence from advocate association for selling books. He fixed rent of Rs.4,000/ p.m. for his book shop. He did not collected rent receipt from authority. After complainant got heart attack, his son lookafter his sale of book business. Further he denied the suggestion of accused that one Stefen Sundara was owner of Prashanth Law books. Further PW1 deposed before court that accused approached complainant in the year 2016 and 2017 and he asked for hand loan. Further it is elicited during course of cross examination that the complainant had annual income of Rs.2 to 3 lakhs. In the year 2017 he had annual income of Rs.20 lakhs. He undertook before court for production of his IT returns for the year 2017. Further PW1 contended during course of cross examination that he advanced loan of Rs.4 lakhs to accused by way of cash. Further it is elicited during course of crossexamination that complainant had two bank accounts in two banks i.e., Bangalore city cooperative bank and Syndicate bank. It is clearly and categorically admitted by PW1 that he KABC020109432019 14 C.C.No.2421/2019 SCCH-26 withdrawn amount from Bangalore city cooperative bank from his account and same amount had advance to accused. Further he undertook before court he would produce bank document to this court. Further PW1 admitted that on 8112016 there is a order passed by the central govt., of India regarding demonetization of old Rs.500/ and Rs.1,000/ notes. Further PW1 deposed before this court that in the year 20162017 he advance hand loan of Rs.4 lakhs to accused by way of cash. Further PW1 denied the suggestion of accused that in the year 2017 there is a restrictions imposed by the central govt., of India to withdrawal of amount from bank. Further PW1 clearly admitted during course of cross examination that in his complaint he gave instructions to advocate to mention date of advancing amount to accused on 422017. Further PW 1 expressed his inability to say which denomination of note gave to accused. Further he denied suggestion of accused that in the year 2017 and month of February there is no transaction of denomination of Rs.500/ and Rs.1,000/ notes. Further PW1 clearly stated that he did not know law is in existence about more than Rs.20,000/ amount shall KABC020109432019 15 C.C.No.2421/2019 SCCH-26 transact through bank account. Further it is clearly and categorically admitted during course of cross examination that complainant son took home loan from bank, the amount alleged to be gave to the accused which is took from bank in the name of complainant son for home loan. He undertook before court he would produce home loan took from bank in the name of complainant son. Further it is elicited during course of cross examination that the alleged cheque in question was issued by accused in his house in the presence of his wife. It is admitted by PW1 that the above stated fact has not mentioned in notice, sworn statement and complaint. Further PW1 deposed before this court that the accused himself wrote contents of cheque in question and then signed before complainant and handed over the same to complainant. Further it is elicited through the mouth of PW1 that the complainant ignored about contents wrote on disputed cheque. PW1 himself volunteers before court that the contents of cheque written by some other persons by the accused. Further PW1 clearly and categorically denied other formal suggestion of accused during course of cross examination. KABC020109432019 16 C.C.No.2421/2019 SCCH-26
14. It is well settled principle of law through catena of decisions that though the statutory presumptions available under Sec.118 and 139 of NI Act are mandatory in nature, they are the rebuttal one. It is needless to say that when the complainant proves the requirement of Sec.138 of NI Act 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 on the shoulder of the complainant. It is also settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also set in rest 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 Acts elicited in the crossexamination of the complainant. It is also equally true that, if the accused places such KABC020109432019 17 C.C.No.2421/2019 SCCH-26 evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decisions of the Hon'ble Apex Court reported in 2006(3) SCC (CRL) 30 Tamilnadu Marcantile Bank Limited V/s M/s Subbaiah Gas Agency and others. ILR 2009 (2) 1633 Kumar Exports V/s Sharma Carpets, AIR 2008 SCC 1325 Krishnajanardhana V/s Dattareya G. Hegde, 2013 SCR (SAR) CRI 373 Vijay V/s Lakshman & another and AIR 2010 SC 1898 Rangappa V/s Mohan and Crl. Appeal No.230 & 231/2019 Bir Singh V/s Mukesh Kumar. Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complaint.
15. In order to disprove the case of complainant and prove his defence the accused orally examined before this court as DW1 and he specifically deposed before this court that he does not know about complainant, he knew about complaint filed against him. It is the specific defence of the accused that he went to bank for purchasing motor cycle to get loan from bank. The bank employees stated that to KABC020109432019 18 C.C.No.2421/2019 SCCH-26 sanction loan they required cheques of accused. Therefore he took his cheque and filledup particulars and again he went back to the bank, again bank officials stated they required 3 months bank statement of accused. Afterwards, accused wife advised to accused no necessary to get motor cycle on loan. Therefore he leave to purchase motor cycle from bank. The filled cheque which is took for bank for purchasing motor cycle he kept in his house, accused wife and complainant and another one Teacher Saraswathi have conducted chit business, the cheque in question issued by accused wife to chit business without knowledge of accused. The complainant sent legal notice to accused. After accused knew about issuance of cheque to one Shivmurthy, he enquired his wife and she admitted that she took signed cheque of accused and handed over to Shivmurthy and she advised to accused not replied to the notice sent by complainant. Therefore he not replied to the notice sent by complainant. After some time, there is a galata took place in the house of accused regarding issuance of his signed cheque to the Shivmurthy for the chit transaction purpose, he called his elders, they spoke with each KABC020109432019 19 C.C.No.2421/2019 SCCH-26 other, the elders of accused family advised to solve the problem between accused and his wife. He immediately went to Bytarayanapura police station to lodge complaint against his wife, but they not received his complaint, because the complainant's brother one Nanjaiah was police officer in Bytarayanapura police station. Immediately he went to complainant's house and make galata, afterwards, complainant and accused wife talked each other and accused wife left accused house. Afterwards he enquired one teacher Saraswathi regarding disputed cheque, she stated to accused that complainant and accused wife having illicit relation, after some time, he received divorce notice from his wife, he replied to said divorce notice which is sent by his wife. The cheque in question not issued by accused, he did not took any hand loan from complainant as alleged in the complaint. In addition to his oral evidence, he produced ExD1 to 6. On careful perusal of accused exhibits, ExD1 legal notice dt.1052019 issued by one Smt.Sharada A. W/o Mallappa K.Mallabadi for asking his consent to get divorce. ExD2reply notice dt.2052019 to ExD1 which is issued by Smt.Sharada M. W/o Mallappa KABC020109432019 20 C.C.No.2421/2019 SCCH-26 K.Mallabadi. ExD3two postal receipts, ExD4 revised consolidation of Gezette notifications 2654S.O.3409(E) & 2652S.O.3407(E) & 2653 S.O.3408(E). ExD5pocket dairy, ExD6note book. He has been subjected cross examination at length, during course of cross examination, it is clearly and categorically admitted by DW1 that he resided in Deepanjali nagar, complainant is also resided in Deepanjali nagar. He saw complainant house which is situated near metro station, Deepanjali nagar. The cheque in question belongs to his bank account and bear signature on cheque is also belongs to accused. Further it is admitted by DW1 that he did not replied notice issued by complainant. Further DW1 deposed before this court that he did not took any legal action for his signed cheque gave for chit purpose, later it has been misused by complainant. DW1 contended before this court that he went to police station to lodge a complaint against complainant, but police officer did not took his complaint. Further DW1 clearly admitted during course of cross examination that he did not approached higher police officers for non taking his complaint by the concerned jurisdictional KABC020109432019 21 C.C.No.2421/2019 SCCH-26 police station. Further DW1 denied the suggestion of complainant that ExD5 to 6 are not relevant document and there is no relation to this case and documents. Further DW1 admitted during course of cross examination that before sending reply notice to divorce notice sent by his wife, this case had been registered against accused. The accused knew about case registered against him by the complainant. Further DW1 denied the suggestion of complainant that in the year 2017, due to incurred loss in his business and for family problems, accused approached complainant and took hand loan of Rs.4 lakhs from complainant. Further DW1 denied the suggestion of complainant that the accused himself instructed complainant on 132019 to present cheque in question before bank for collection of money. Further it is elicited from the mouth of DW1 that he studied upto 5 th class . Further DW1 clearly and categorically denied other formal suggestions made by complainant during course of cross examination.
16. On careful analyze entire evidence and documents, it is clear that cheque in question and signature appears on disputed cheque KABC020109432019 22 C.C.No.2421/2019 SCCH-26 belongs to accused. The said cheque having date on 2822019. On presentation of the said cheque, it was returned as unpaid due to Insufficient of Funds. Hence complainant sent statutory notice u/s 138(B) of NI Act, same was personally served on accused. He did not gave any reply. The present case filed against accused before this Hon'ble court on 1242019. On the basis of materials of complainant, this court took cognizance against accused and ordered for issue process to accused on 1542019. The said process served on accused, thereafter the accused replied to the notice issued by his wife by name Sharada notice dt.1052019 which is produced by accused and marked before this court as ExD1. The accused and his wife mutually exchanged notice alleged to have illicit relationship with others. The present accused alleged against his wife she had illicit relationship with the present complainant by name Shivamurthy S/o Late.Doddaiah. The accused wife had alleged against this accused that he had illicit relationship with one Shanthi @ Bhagya W/o Late.Kumar. Therefore she sent ExD1 to accused for consenting get mutual divorce. On the other hand, the accused KABC020109432019 23 C.C.No.2421/2019 SCCH-26 replied as per ExD2 by denying the allegations made by his wife and he intends to live together with his wife and children. Admittedly there is no materials from accused to substantiate his allegations made against his wife. The accused wife sent ExD1 in the name of Smt.Sharada, but accused stated in ExD2 para 7, accused wife name Girija M. but she manipulated the eduction and documents and got job in Anganawadi centre by producing fake and fabricated documents in the name of Sharada M. who is her elder sister of accused wife and accused wife cheated the government by producing false and created documents and got job. To substantiate ExD2 para 7 accused did not placed any believable materials before this court. The limited jurisdiction of this court that whether the signed cheque of accused goes to possession of complainant when and in which circumstances?.
17. The specific defence of the accused that the accused wife Smt.Girija and another one anganawadi teacher Smt.Saraswathi have got chit membership which is running by complainant in the year 2016 KABC020109432019 24 C.C.No.2421/2019 SCCH-26 and 2017, accused wife get accused signed cheque and same has been handed over to complainant. The accused wife and complainant have illicit relationship. Therefore she intentionally handed over his signed cheque to complainant, he did not borrowed any amount from complainant, he just seen complainant in the Deepanjali nagar. To substantiate his defence, he orally stated some facts before this court and he produced ExD1 to 6. So on seeing ExD1 and 2, it appears accused and his wife mutually alleged against both, both have illicit relationship with others, so there is no good marital relationship between them. therefore they are separated now. When accused wife living with accused, she handed over cheque in question to the complainant. But there is no material on record to show that accused wife handed over accused signed cheque to the complainant. The accused produced ExD5 and 6. that document are not helpful to accused to prove fact before court that the accused wife Smt.Girija and another teacher Saraswathi have chit member which is running by complainant. For the purpose of chit purpose, the signed cheque of accused gave by accused wife. This KABC020109432019 25 C.C.No.2421/2019 SCCH-26 court already expressed its view at the time of passing interim order on IA u/s 311 Cr.P.C. dt.21122021 regarding genuineness of the ExD5 and 6. Though the accused counsel misleading the fact and got marked as ExD5 and 6. Therefore there is no necessity to much discuss on ExD5 and 6. So as per materials on record, the accused failed to substantiate before this court that the alleged cheque gave by accused wife to the complainant.
18. Further the second and important defence of accused that on 8112016, the central government of India ordered for demonetization of higher value currency notes of Rs.500/ and Rs.1,000/ and further the central government of India restricted cash withdrawal limits from 8112016 to March 2018. Therefore he placed ExD4 Gagette notification dt.8112016. So as per ExD4, "the central government of India declares that the specified bank notes shall cease to be legal tender with effect from 9112016 to the extent specified below namely (1) every banking company, cooperative bank, KABC020109432019 26 C.C.No.2421/2019 SCCH-26 corresponding new bank, subsidiary bank, regional rural bank and the S.B.I as defined under the banking regulation Act 1949 (10 of 1949) (hereinafter referred to as banking company or bank) and every government treasury shall complete and forward a return showing the details of specified bank notes held by it at the close of business as on 08112016, not later than 13.00 hours on the 10 th November 2016 to the designated regional office of RBI(herein after referred to as Reserve bank) in the format specified by it etc.,........
(vi) cash withdrawal from a bank account over the counter shall be restricted to Rs.10,000/ per day subject to on over all limit of Rs.20,000/ a week from the date of commencement of this notification until the end of business hours on 24 th November 2016, after which this limits shall be reviewed". Further it is forthcoming from RBI/20162017 DCM Plg 3107/10.27.00/20162017. RBI prescribed cash withdrawal limit on saving account would be lifted in two phase from February 2017 " customers would be able to withdraw Rs.50,000/ per week as against the current limit of KABC020109432019 27 C.C.No.2421/2019 SCCH-26 Rs.24,000/per week. There would be no cash withdrawal limits from March 2018 on saving accounts".
19. In this background, on perusal of complaint averments, it is the case of complainant in para 2 of his sworn statement and complaint that "the accused has approached him and borrowed a hand loan of Rs.4 lakhs on 422017 by complainant for the purpose of her debts and other family necessities. The accused has agreed to repay the above said hand loan amount within two years". Further in para 3 of sworn statement and complaint at first line stated that "towards the repayment of above said hand loan amount, the accused has issued cheque in question".
20. The present accused mainly questioned PW1 during course of cross examination and accused successful in get admission from the mouth of PW1 in crossexamination dt.29112021 in page 6 at 3 to 8 lines. The portion of admission given by PW1 extracted below: KABC020109432019 28 C.C.No.2421/2019 SCCH-26 ನ Bangalore city cooperative bank ಖತ ಯಯದ ಆರರರಪಗ ಕರಟಟ ಹಣವನನ ತಗದನ ಆರರರಪಗ ಕರಟಟದನ ಬಬಯಕ ನ ದಖಲಯನನ ನ ನನನ ನಬಯಲಯಕಕ ಕರಡನತತರನ. 20162017 ನರ ಸಲನಲ ನನನ ಆರರರಪಗ 4 ಲಕ ಹಣವನನ ನ ನಗದಗ ಕರಟಟದನ. ದ.08112016 ರಯದನ ಕರಯದದ ಸರರರದ ಆದರಶದಯತ ಹಳಯ ನರರಟನಗಳನ ಅಮನರಕರಣ ಆಗತನತ ಎಯದರ ಸರ . 2017 ರಲ ಬಬಯಕ ನಯದ ಹಣ ತಗಯಲನ ನರರಯದ ಇತನತ ಎಯದರ ಸರಯಲಲ . ನನನ ಪಯದರನಲ ದ .422017 ರಯದನ ಹಣ ಕರಟಟದನಯದನ ರರಸದನ ಎಯದರ ಸರ . ಫರದವರ 2017 ರಲ ಜಸತ ಮತತವನನ ನ ಬಬಯಕ ನಯದ ಡದ ಮಡಬರಕದದರ ಏನದರರ ರರಣಗಳನನ ನ ನರಡ ತಗದನಕರಳಳಬರರಗತನತ ಎಯದರ ಸರಯಲಲ. ಆರರರಪಗ ನನನ ಯವ ಮನಖಬಲಯ ನ ಕರಟಟದನ ಎಯದನ ನನಪಲಲ. ಆಗ 500 ಮತನತ 1000 ಮನಖಬಲಯ ನರರಟನಗಳನನ ನರರಟನಗಳನ ಚಲವಣಯಲ ಇರಲಲಲ ಎಯದರ ಸರಯಲಲ. 20,00000 ಕಯತ ಹಚಚನ ನ ಬಬಯಕಮನಖಯತರ ಕರಡಬರಕನ ಎಯರ ರನರನನ ಇರನವದನ ನನಗ ಗರತತಲಲ ಮತತವನನ .
21. Further PW1 deposed before this court during course of cross examination in next line of cross examination that ಆರರರಪಗ ಕರಟಟರನವ ಹಣ ನನನ ಮಗನ ಹಸರನಲ ಬಬಯಕ ನಯದ ಗಗಹ ಸಲ KABC020109432019 29 C.C.No.2421/2019 SCCH-26 ತಗದನಕರಯಡರನವದರಯದ ರಯದದ. ನನನ ನನನ ಮಗನ ಹಸರನಲ ಸಲ ನ ನಬಯಲಯಕಕ ಕರಡಲನ ತರಯದರ ಇಲಲ .
ಪಡದನಕರಯಡರನವ ದಖಲಯನನ
22. Further PW1 stated during course of cross examination in page 7 at 2 and 3 lines that ನನಗ 20 ಲಕ ಆದಯ ನನನ ಸಸಯತ ಮನ ಆಸತ ಪತದರರತವಗ ರಯದರನವ ಆಸತಗಳಯದ ರಯದರನತತದ. ನನನ ಹಸರನಲ ಸಸತನತಗಳನ ಇರನವ ದಖಲಗಳನನ ನ ನಬಯಲಯಕಕ ಕರಡಲನ ತರಯದರ ಇಲಲ .
23. So as per own admission from PW1, the complainant initially stated in his complaint the accused approached complainant and borrowed hand loan of Rs.4 lakhs on 422017. During trial, this fact has been improved and admitted during course of cross examination that he withdraw an amount from his bank account in Bangalore city cooperative bank, Bangalore, the said amount had been advanced to accused. Further PW1 improved his version in another moment of his KABC020109432019 30 C.C.No.2421/2019 SCCH-26 cross examination that complainant get home loan in the name of his son and same had been advance to accused. The complainant clearly and categorically undertook before this court he would produce his bank account document i.e., Bangalore city cooperative bank and home loan obtained in the name of his son. But he did not produced during trial before this Hon'ble court. Further it is important fact from ExD4 there is a clear restrictions imposed on public/customers to withdrawal of cash limit from 8112016 till March 2018. After that there is no restrictions imposed by the central govt., of India regarding withdrawal of cash from their bank accounts. It is made clear from ExD4 that there is a strict restrictions imposed by the central govt., of India regarding withdrawal of cash from their bank accounts. Customers are permitted to withdraw Rs.50,000/ per week in the month of February 2017. In the instant case, complainant stated in his complaint, sworn statement and notice that he advanced loan of Rs.4 lakhs by way of cash. There is no any believable materials he had Rs.4 lakhs cash in his hand on 422017. Further it is pertinent to appreciate the oral evidence of PW1 that the KABC020109432019 31 C.C.No.2421/2019 SCCH-26 PW1 stated two version in his cross examination regarding how he acquired amount to advance to the accused. PW1 failed to produce documents which is admitted before this court. Therefore the version of complainant appears to be improper and not genuine. When there is a clear restrictions from competent authority for withdrawal of the cash limit, how could possible to get Rs.4 lakhs from bank by the complainant. This fact mainly arose doubt in the mind of court. It is bounded duty on complainant to explain by producing proper documents and remove this doubt from his side documents. To substantiate this fact, PW1 has not produced any material and cogent documents. So in the absence of material documents, it could not possible to accept the version of complainant.
24. On careful analize entire evidence and document, it is clear that the complainant has not produced any document to show or substantiate the very complaint averments as on the date of issuance of cheque or prior to issuance of cheque, the KABC020109432019 32 C.C.No.2421/2019 SCCH-26 complainant and accused having direct business transactions as putup by the complainant. The complainant failed to show before court that he had Rs.4 lakhs cash in his hand on 42 2017 and same has been advance to accused by way of cash. Further PW1 utterly failed to produce documents pertaining to bank account of complainant i.e., Bangalore city cooperative bank and home loan obtained in the name of his son. Absolutely there is no materials. On the other hand, accused took admission from PW1 that there is a restrictions from order by central govt., of India as per ExD4 and further such a restrictions has been continued from 8112016 to till March 2017. There is no direct nexus between accused and complainant. So from above discussion, it is clear that the complainant has utterly failed to prove complaint averments. There is many discrepancy in complaint and ocular evidence of PW1. As already discussed supra, the standard of proof expected from accused is of the nature of preponderance of KABC020109432019 33 C.C.No.2421/2019 SCCH-26 probabilities whereas, the burden is on the complainant to prove his case to the satisfaction of the court exactly as per his claim before court, the burden on proof on accused is only to raise a probable defence by showing a preponderance of probabilities. In the present case, the accused has successfully discharged burden of proof placed upon him by effectively cross examined witness of complainant (PW1) and also shows lacunas and bigger inconsistence in the complainant case. The complainant has utterly failed to establish ingredients of Section 138 (a) to (c) and appended explanation of NI Act. Complainant failed to prove the guilt of accused beyond reasonable doubt. The accused is through oral and documentary evidence successful in rebutting presumption U/s 139 of NI Act which is in favour of the complainant. Considering all these aspects of this case and on perusal of evidence, lead on behalf of complainant, it does not depicts that accused is liable to pay Rs.4 lakhs to the complainant. The documents produced by the complainant does KABC020109432019 34 C.C.No.2421/2019 SCCH-26 not disclose by existence of legally enforceable debt, which is pre requisite condition for prosecuting a case U/s 138 of NI Act. Presumption U/s 139 and 118 A of NI Act cannot be extended to presume that there exist legally enforceable debt. More, so presumption they themselves are not evidence. Hence viewing from any angle, complainant has failed to establish existence of legally recoverable debt. It is also trite that mere issuance of cheque without corresponding legally recoverable debt is not an offence. In the instant case also complainant has not established the existence of legally recoverable debt and he did not complied section 138 (a) to (c) appended explanation. Under these circumstances, the imperative conclusion is that the accused has not committed an offence punishable U/s 138 of NI Act. This will entails in acquittal of the accused.
25. Therefore, on going through the entire evidence and records, it clearly appear that the complainant has suppressed the real fact and come up with some facts to suit his claim on the KABC020109432019 35 C.C.No.2421/2019 SCCH-26 basis of Ex.P.1. On the basis of evidence in cross examination of the complainant as PW1, the accused in the case on hand as successfully rebutted the presumption raised in favour of the complainant u/s 138 of NI Act. Even if the cheque in question i.e. Ex.P.1 was returned uncashed there is absolutely no case against the accused for the offence punishable u/s 138 of NI Act. If the totality of the evidence on record is considered, doubt arises regarding the case of the complainant. Hence, the complainant has failed to prove beyond reasonable doubt that the accused has committed any offence punishable u/s 138 of NI act. The case of the complainant creates serious doubts in the mind of court. The light of existing evidence, this court is of the considered view that the defence of the accused cannot be totally ruled out. Therefore, the case of complainant is totally surrounded with heavy cloud and creates serious doubt. As discussed in detail, when the evidence placed before this court leads to disbelieve the case of the complainant, then the KABC020109432019 36 C.C.No.2421/2019 SCCH-26 presumption stands rebutted. Thus, considering all these aspects, this court is of the considered view that the complainant has failed to prove points No.1 to 3 in his favour as contended. It is needless to say that when the complainant failed to prove point No.1 to 3 the complainant cannot be granted with any relief as sought for in this case. Hence, point No.1 to 3 are required to be answered in Negative and answered accordingly.
26. Point No.4: For the reasons discussed in connection with in point no.1 to 3 this court proceed to pass following : : O R D E R : By Acting U/s 255(1) of Cr.P.C the accused is hereby acquitted for the offence punishable U/s 138 of NI Act.
The bail bond of the accused stands canceled.
(Dictated to the stenographer, through online computer, thereof is corrected and then pronounced by me in the open Court on this the 16th May 2022) (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
KABC020109432019 37 C.C.No.2421/2019 SCCH-26 ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW1: Shivamurthy DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P.1 Cheque, signature as ExP1(a) Ex.P.2 Bank memo Ex.P.3 Legal notice Ex.P.4 & 5 2 postal receipts Ex.P.6 & 7 Postal tracks
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
DW1 Mallabadi Mallappa @ Mallu K.Mallabadi DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
Ex.D1 Legal notice
Ex.D2 Office copy of reply notice
Ex.D3 Postal receipts
Ex.D4 Gazette notification
(R.MAHESHA)
XXIV ADDL. SMALL CAUSES JUDGE
& A.C.M.M. BENGALURU.
KABC020109432019
38 C.C.No.2421/2019
SCCH-26
KABC020109432019
39 C.C.No.2421/2019
SCCH-26
KABC020109432019
40 C.C.No.2421/2019
SCCH-26
Dt 1652022
Judgment pronounced in the Open Court vide separate order:
ORDER By Acting U/s 255(1) of Cr.P.C the accused is hereby acquitted for the offence punishable U/s 138 of NI Act.
The bail bond of the accused stands canceled.
(R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU. KABC020109432019 41 C.C.No.2421/2019 SCCH-26