B.T.Swamy vs M.Kumara Swamy on 9 July, 2020

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Bangalore District Court

B.T.Swamy vs M.Kumara Swamy on 9 July, 2020

  IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
  MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY

              Dated this the 9th day of July - 2020

        PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
                    XXIII Addl.C.M.M., Bengaluru City.

                     C.C.NO.16603/2015

        JUDGMENT UNDER SECTION 355 OF Cr.P.C.

    Complainant         :     B.T.Swamy,
                              S/o.S.V.Bhadrappa,
                              Aged about 62 years,
                              R/at No.95, 2nd Floor,
                              10th Cross, Nrupatunga Road,
                              NGEF Layout, Nagarabhavi II Stage,
                              Bengaluru-72.

                              (Rep. by Sri.C.R.Sundaresh, Adv.)

                        V/S
    Accused             :     M.Kumara Swamy,
                              Major, No.4, 1st Cross,
                              3rd Main Road, Kalyan Nagar,
                              Nagarabhavi, Bengaluru-72.

                              (Rep.by Sri.Shivayogi.B.Hallur, Adv.)

OFFENCE COMPLAINED OF            :   U/Sec. 138 of Negotiable
                                     Instruments Act.
PLEAD OF THE ACCUSED             :   Not guilty.
FINAL ORDER                      :   Accused is Acquitted.
DATE OF ORDER                    :   09.07.2020.




                                       (SHRIDHARA.M)
                                 XXIII Addl.CMM., Bengaluru.
 Judgment                          2                C.C.No.16603/2015



                         JUDGMENT

The complainant has presented the instant complaint against the accused on 18.05.2015 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.30 lakhs.

2. The facts raised in the complaint is as follows in brief:

The accused known to complainant from the past several years and as the accused was in the field of construction of building and in real estate, hence, complainant herein has entrusted the accused to put up construction of building on the portion of land situated at No.95, bearing Sy.No.23, formed by NGEF Employees House Building Co-operative Society Ltd., situated at Nagarabhavi Village, Yeshwanthapur, Bengaluru, which is absolutely owned by the complainant.

The complainant has further alleged that, the complainant and accused have agreed to share the apartments after completing the assignment on the agreed terms separately. During the construction of apartment on the land owned by the complainant, the accused has misused his honesty and friendship and made out the sham transaction out of the construction activities in between 01.02.2013 to 31.07.2013 and collected sum Judgment 3 C.C.No.16603/2015 of Rs.41 lakhs from the complainant towards short term hand loan to meet certain expenses on account of the construction of building construction, while selling and registering a portion of the apartments to an aspirant buyer. However, the accused had promised to repay the said sum of Rs.41 lakhs on later date and in lieu of liability, he had issued post dated cheque bearing No.144857, dated:04.02.2015 for sum of Rs.30 lakhs drawn on ICICI Bank, Vijayanagar Branch, Bengaluru, duly signed by the accused, as part payment, as against Rs.41 lakhs and remaining amount also orally agreed to repay at the earliest.

The complainant has further contended that, he has presented the said cheque for encashment through his banker viz., State Bank of Hyderabad, Rajajinagar, Bengaluru, on 23.03.2015 for realization and the said cheque came to be returned with endorsement stating, "04-Refer to Drawer".

The complainant has further alleged that, once again he had re-presented the same on 06.04.2015 through his banker for the purpose of get clear information and instruction on the phrase of refer to drawer and to encash the cheque by anticipating sufficient funds in the account of accused, by gave sufficient time to fulfill the obligation of accused. Unfortunately, the said cheque Judgment 4 C.C.No.16603/2015 as per endorsement dated:07.04.2015 got returned with an advice "04-Refer to Drawer".

The complainant has further averred that, he had informed the accused about bouncing of cheque and personally requested him to clear the said amount by way of demand draft or by way of cash, but he did not bother to repay the same.

The complainant has further contended that, the complainant had keep on informing the accused to repay Rs.30 lakhs and he intentionally, deliberately and malafidely got issued the said cheque knowingfully well that, it would never honoured for the reasons best known to him.

The complainant has further alleged that, on the receipt of intimation from the bank, then he got issued legal notice dated:16.04.2015 to the accused by way of R.P.A.D and Speed Post. To that effect, the postal acknowledgment receipts are pleaded filing along with complaint. The legal notice was not received by the complainant instead it was returned undelivered. The accused got issued cheque for discharge of liability undertaken by him. The notice issued to the accused, calling upon him to pay the amount covered under the cheque came to be returned undelivered, though he knowing the legal notice and Judgment 5 C.C.No.16603/2015 postal cover reached his house and had the knowledge of the postman, who was knocked the door to deliver the cover, but he deliberately managed to return the postal cover to reach the complainant in the status of undelivered. However, till the date of filing complaint, accused had not paid the amount from the date of service of notice. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, brought the present complaint before this court.

3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.

4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.

5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P6 and P8. The PW.1 was subjected for cross-examination by the advocate for the Judgment 6 C.C.No.16603/2015 accused. In the cross-examination of PW.1, accused counsel got confronted one document and same is marked as Ex.D1.

6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D2 to D11. The DW.1 was also choosen to orally examined one Sri.Pramodh.T.V as DW.2, who is the Branch Manager of ICICI Bank, Vijayanagar, Bengaluru and through his got marked Ex.D12. The DW.1 and DW.2 were subjected for cross-examination by the advocate for the complainant. In the cross-examination of DW.1, complainant counsel got confronted one document and same is marked as Ex.P7.

7. I have heard the arguments of both side counsels.

8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:

1) Whether the complainant proves beyond the reasonable doubt that, he lent sum of Rs.41 lakhs to the accused as alleged in the complaint?

2) Whether the complainant proves beyond the reasonable doubt that, out of the loan amount of Judgment 7 C.C.No.16603/2015 Rs.41 lakhs, for repayment of partial amount of Rs.30 lakhs, the accused got issued cheque bearing No.144857, dated:04.02.2015 drawn on ICICI Bank, Vijayanagar Branch, Bengaluru?

3) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?

4) What Order?

9. On appreciation of materials available on record, my findings on the above points are as under:

Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : In the Negative Point No.4 : As per final order, for the following:

REASONS UNDISPUTED FACTS

10. On going through the rival contentions of the parties as well as the documentary evidence produced by them, coupled with their oral evidence, the following facts remain undisputed. The same are extracted for the purpose of better understanding of the issues involved in the present case.

11. The fact that, the addresses of the complainant and accused as on the date of filing of case as mentioned in the Judgment 8 C.C.No.16603/2015 complaint is not in dispute. The fact that, the complainant is doctor by profession and the accused was doing the construction work is not in dispute. The fact that, the complainant is the owner of the property bearing No.95, carved out in Sy.No.23 formed by NGEF Employees House Building Co-operative Society Ltd., situated at Nagarabhavi Village, Yeshwanthapur, Bengaluru, is not in dispute. The fact that, in respect of the said property, the complainant and accused have entered into joint venture, wherein, the complainant as found in the recital and referred at undisputed document of Memorandum of Understanding produced at Ex.D9 dated:15.04.2013, the complainant let the accused to construct the 4 residential house in the said property is not in dispute. The fact that, the accused himself got prepared the necessary plan and obtained sanctioned plan and other licenses from the competent authority for the purpose of construction of apartment in the property of the complainant as admitted is not in dispute.

12. It is worthy to re-produce the admitted facts as to the terms and conditions somehow admitted by both the parties. The relevant portion runs thus:

Judgment 9 C.C.No.16603/2015 "DgÉÆÃ¦ £ÀªÀÄUÉ ªÀÄ£É PÀnÖPÉÆnÖgÀÄvÁÛgÉAzÀgÉ ¸Àj. ªÀÄ£É PÀlÄÖªÁUÀ PÀ®Äè, ¹ªÉÄAmï, ªÀÄgÀ¼ÀÄ ªÀÄvÀÄÛ J¯Áè RZÀð£ÀÄß DgÉÆÃ¦AiÉÄÃ £ÉÆÃrPÉÆArzÁÝgÉAzÀgÉ ¸Àj. DgÉÆÃ¦ ¸ÀzÀj ªÀÄ£ÉAiÀÄ£ÀÄß 2012gÀ°è PÀlÖ®Ä ¥ÁægÀA©ü¹ 2015gÀ°è ¥ÀÇtðUÉÆ½¹gÀÄvÁÛgÉ. ªÀÄ£ÉAiÀÄ ¸ÁåAPÀë£ï ¥Áèå£ï RZÀð£ÀÄß DgÉÆÃ¦AiÉÄÃ ªÀ»¹PÉÆArzÀÝgÀÄ. £Á£ÀÄ DgÉÆÃ¦UÉ gÀÆ.41 ®PÀë ºÀt PÉÆnÖzÉÝÃ£ÉAzÀÄ vÉÆÃj¸À®Ä AiÀiÁªÀÅzÉÃ zÁR¯ÉAiÀÄ£ÀÄß F PÉÃ¹£À°è ºÁdgÀÄ ªÀiÁr®è JAzÀgÉ ¸Àj. DgÉÆÃ¦UÉ gÀÆ.41 ®PÀë ºÀt PÉÆnÖzÉÝÃ£ÉAzÀÄ vÉÆÃj¸À®Ä £À£Àß DzÁAiÀÄ vÉjUÉ ªÀgÀ¢AiÀÄ£ÀÄß ºÁdgÀÄ ªÀiÁr®è."

13. The above re-production of cross-examination of PW.1 also remains undisputed with regard to the fact that, the accused got finished the construction work by incurring the expenses of stones, cement, sand and other expenses himself is not in dispute. From the said testimony it also made clear that, agreed construction was started in the year 2012 and got finished in the year 2015 and the accused himself borne the expenses for obtaining necessary sanction plan is also not in dispute.

That apart, after the construction of said apartment, how the terms and conditions were executed with regard to sharing of building after construction between complainant and accused is Judgment 10 C.C.No.16603/2015 also seen from the following undisputed facts, uttered through the mouth of PW.1, which runs thus:

"PÀlÖqÀ PÀnÖzÀ £ÀAvÀgÀ 2 ¨sÁUÀUÀ¼À£ÀÄß £Á£ÀÄ ElÄÖPÉÆAqÀÄ E£ÀÄß½zÀ 2 ¨sÁUÀUÀ¼À£ÀÄß DgÉÆÃ¦UÉ PÉÆnÖzÉÝ JAzÀgÉ ¸Àj. £À£ÀUÉ §AzÀ 2 ¨sÁUÀUÀ¼À°è MAzÀÄ ¨sÁUÀªÀ£ÀÄß ªÀÄAdÄ J£ÀÄßªÀjUÉ ªÀiÁgÁl ªÀiÁrzÉÝÃ£ÉAzÀgÉ ¸Àj. ªÀÄAdÄ J£ÀÄßªÀgÀÄ £À£ÀUÉ gÀÆ.20 ®PÀëUÀ¼À£ÀÄß ªÀÄÄAUÀqÀªÁV vÀAzÀÄ PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸Àj. ¸ÀzÀj gÀÆ.20 ®PÀë ºÀtªÀ£ÀÄß ¨ÁåAQUÉ DgÉÆÃ¦AiÀÄ eÉÆvÉUÉ CPÉÆÖÃ§gï 2012 gÀAzÀÄ vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃV, £À£Àß ªÀÄUÀ¼À ºÉ¸Àj£À°èzÀÝ ²PÀëtzÀ ¸Á®ªÀ£ÀÄß ¸ÀA¥ÀÇtð PÀnÖ, CqÀ«lÖ J¯Áè ªÀÄÆ® zÁR¯ÉUÀ¼À£ÀÄß ªÁ¥À¸ï ¥ÀqÉzÀÄPÉÆAqÀÄ §AzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQë £Á£ÉÆ§â£ÉÃ ¨ÁåAQUÉ ºÉÆÃV ºÀt PÀnÖ, ªÀÄÆ® zÁR¯ÉUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ §AzÉ JAzÀÄ £ÀÄr¢gÀÄvÁÛgÉ. ¨ÁåAQUÉ DgÉÆÃ¦ £À£Àß eÉÆvÉUÉ §A¢zÀÝjAzÀ DgÉÆÃ¦UÀÆ ¸ÀºÀ ¸Á® PÀnÖzÀ §UÉÎ MAzÀÄ eÉgÁPïì ¥ÀæwAiÀÄ£ÀÄß PÉÆlÖgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëUÉ eÉgÁPïì ¥ÀæwAiÀÄ£ÀÄß vÉÆÃj¹ CzÀgÀ°è ¨ÁåAPï ¸Á® PÀnÖzÀ §UÉÎ w½¹zÁÝgÉAzÀgÉ ¸ÁQë M¦àPÉÆArgÀÄvÁÛgÉ. ¸ÀzÀj zÁR¯ÉAiÀÄ£ÀÄß ¤r-1 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ."

As per the clear cut admission made by the PW.1, it also made clear that, after completion of construction of said building two portions were retained by the complainant and 2 portions were handed over too the accused is not in dispute. Out of the Judgment 11 C.C.No.16603/2015 said 2 portions retained by the complainant, the complainant got sold one house in favour of purchaser by name Manju is not in dispute. The fact that, the said Manju got paid the advance sale consideration of Rs.20 lakhs to the complainant, in that connection is also remains unchallenged. The fact that, out of the said sum of Rs.20 lakhs. So received, as advance by the complainant, he got cleared the education loan of his daughter in the month of October, 2012, as found in Ex.D1 and taken back the original documents pertaining to the property is not in dispute.

The fact that, the complainant after receipt of advance amount, as admitted above, later, he sold the property in favour of purchaser is also been seen in the recitals of sale deed executed by the complainant in favour of purchaser by name Manju got produced at Ex.D2. The recitals at Ex.D2 made clear, the complainant got executed registered sale deed dated:15.02.2013 in favour of the said purchaser for the sale consideration of Rs.1,01,00,000/- is not in dispute. The fact that, the said Manju was put in possession of the said house made mentioned therein is not in dispute.

That apart, The fact that, after sold the property in favour of Manju, the complainant book the tickets on 06.04.2013 by paying Judgment 12 C.C.No.16603/2015 Rs.1,50,000/-, as complainant and accused families intends to go to Singapur, the relevant portion of admission made by PW.1, runs thus:

"¢£ÁAPÀ 06.04.2013 gÀAzÀÄ gÀÆ.1,50,000/- ªÀ£ÀÄß DgÉÆÃ¦ ªÀÄvÀÄÛ £Á£ÀÄ ¹AUÁ¥ÀÅgÀPÉÌ ºÉÆÃUÀ®Ä nPÉmï£ÀÄß §ÄPï ªÀiÁqÀ®Ä PÉÆnÖzÉÝ. ºÁUÉ ºÉÆÃzÀ ¢£ÁAPÀ £É£À¦®è. ¢£ÁAPÀB20.02.2013 jAzÀ 03.03.2013 gÀªÀgÉUÉ £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆÃ¦AiÀÄ PÀÄlÄA§ ¹AUÁ¥ÀÅgÀPÉÌ ºÉÆÃVzÉÝªÀÅ JAzÀgÉ ¸Àj."

From the said evidence, it made clear that, the factum of families of complainant and accused as tickets were arranged by the complainant by spent Rs.1,50,000/- in order to visit the Singapur, accordingly, they were visited there in between 20.02.2013 till 03.03.2013 is not in dispute.

The fact that, the complainant lent sum of Rs.30 lakhs by deducting the necessary interest got paid sum of Rs.9,80,000/- each, very particularly on 14.03.2013, 15.03.2013 and 16.03.2013 respectively, by crediting the loan of Rs.30 lakhs, wherein, includes the deduction of Rs.60,000/- interest by the complainant, as found in Ex.P7 is not in dispute. The fact that, the said loan amount by virtue of cheque, the accused got returned on 10.08.2013 to the complainant for sum of Rs.25 lakhs were been Judgment 13 C.C.No.16603/2015 paid is not in dispute. In that regard, the PW.1 also clearly admitted that, the accused got cleared the loan of Rs.30 lakhs as mentioned in Ex.P7. The relevant portion of evidence of PW.1 runs thus:

"gÀÆ.9,80,000/- zÀAvÉ ªÀÄÆgÀÄ ¨Áj DgÉÆÃ¦ £À£ÀUÉ £À¤ßAzÀ ¥ÀqÉzÀAvÀºÀ gÀÆ.30,00,000/- ¸Á®ªÀ£ÀÄß ªÀÄgÀ½¹zÀÝgÀÄ JAzÀgÉ ¸Àj."

From the clear cut admission made by the complainant and accused, it made clear that, whatever the loan borrowed by the accused for the tune of Rs.30 lakhs, though cheque stands for Rs.25 lakhs, the PW.1 has clearly admitted Rs.30 lakhs loan borrowed by the accused from the complainant and in turn, he got cleared as found in Exs.P7 and P8 is not in dispute.

The fact that, questioned cheque at Ex.P1 and signature therein is of the accused is not in dispute. The fact that, for the reasons stated in banker slips at Exs.P2 and P3 for the reasons refer to drawer, the said cheque came to be returned unpaid is not in dispute. The fact that, after construction of the house in the property of the complainant, the complainant and accused are resides in neighbouring houses is not in dispute. The fact that, Ex.P4 legal notice got issued by R.P.A.D, through Ex.P6 though Judgment 14 C.C.No.16603/2015 issued, it came to be returned for the reasons unserved by made shara left returned to sender on 17.04.2015 is not in dispute.

The fact that, the complainant has not disputed the genuineness of documents produced by the accused from Exs.D1 to D11 is not in dispute. The fact that, the Exs.D1 to D11 pertaining to the immovable property of the complainant, wherein, the accused for put up the construction got obtained the necessary sanction plan and licence and proceed with the construction is not in dispute.

14. POINT NOs.1 to 3: Since all these 3 points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.

The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P8, they are:

a) Ex.P1 is the cheque bearing No.144857 issued by the accused for sum of Rs.40 lakhs dated:04.02.2015, drawn on ICICI Bank, Vijayanagar Branch, Bengaluru.

b) Ex.P1(a) is the alleged signature of accused.

c) Exs.P2 and P3 are the Bank Memos dated:07.04.2015 and 24.03.2015.

d) Ex.P4 is the Legal Notice dated:16.04.2015.

Judgment 15 C.C.No.16603/2015

e) Ex.P5 is the Postal receipt.

f) Ex.P6 is the unserved R.P.A.D cover.

g) Ex.P6(a) is the legal notice at Ex.P6.

h) Ex.P7 is the statement of account pertaining to complainant herein for the period from 01.02.2013 to 31.07.2013 issued by ICICI Bank and

i) Ex.P8 is the Transaction Inquiry pertaining to complainant issued by ICICI Bank.

15. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citations and relied upon same, they are;

a) Crl.R.P.720/2010

b) Crl.A.No.124/1996

c) ILR 2001 KAR 4127

d) Judgment in RFA No.264/2012

e) Judgment in C.C.No.6962/14 of Hon'ble Delhi District Court.

f) Judgment in C.C.No.155/1/2008 of Hon'ble Delhi District Court.

g) Judgment in C.C.No.17991/13 of learned 20th ACMM, Bengaluru.

16. In order to prove the defence of the accused, he himself choosen examined as DW.1 and produced the documents at Exs.D1 to D11. They are:

Judgment 16 C.C.No.16603/2015

a) Ex.D1 is the copy of educational loan clearance certificate dated:22.10.2012 issued by State Bank of Hyderabad to complainant herein along with attached letter of the said bank.

b) Ex.D2 is the certified copy of absolute sale deed dated:15.02.2013 executed by complainant herein in favour of one Mr.R.Manju.

c) Ex.D3 is the water collection card issued by BWSSB, Bengaluru.

d) Ex.D4 is the cash receipt issued by BWSSB, Bengaluru.

e) Ex.D5 is the special notification letter dated:16.02.2015 issued by Assistant Revenue Officer, Rajarajeshwarinagar zone, BBMP, Bengaluru.

f) Ex.D6 is the electrical installation approval letter dated:30.08.2013 issued by Electrical Inspector, Bengaluru North in favour of complainant.

g) Ex.D7 is the sanctioned plan.

h) Ex.D8 is the statement of account pertaining to one Madhu Kumaraswamy for the period from 01.01.2013 to 19.11.2013 issued by HDFC Bank.

i) Ex.D9 is the Memorandum of Understanding dated:15.04.2013 entered into between complainant and accused herein.

j) Ex.D10 is the certified copy of absolute sale deed dated:15.04.2013 executed by complainant herein in favour of accused and

k) Ex.D11 is the sanctioned approval sketch.

17. That apart, to prove his defence, the accused got choosen to orally examined one Pramodh.T.V as DW.2, who is the Branch Manager of ICICI Bank, Vijayanagar Branch, Bengaluru and through him got marked Ex.D12. It is:

Judgment 17 C.C.No.16603/2015

a) Ex.D12 is the letter dated:22.10.2018 issued by ICICI Bank.

The DW.1 and DW.2 were subjected to the cross-

examination by the advocate for the complainant. Apart from led defence evidence, the accused through his counsel has produced the citations and relied upon same. They are:

a) Crl.A.No(s).95-96 of 2019.

b) Spl.L.A.(crl.) No(s).3737 - 3738 of 2016.

18. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.

19. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed his side. Thereafter, the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, the accused denied the incriminating evidence made against him. In order to prove his probable defence, the accused choosen to entered into the witness box by filing affidavit evidence and examined on oath as DW.1. Since, the complainant has not opposed the affidavit evidence of the accused; the same was taken on record. In brief, the defence of the accused contended in the affidavit evidence is as follows:

Judgment 18 C.C.No.16603/2015 The accused has contended that, he is well-conversant with the facts and circumstances of the present case. The complainant was his neighbour in lifestyle Terrance Apartment, Bengaluru and he was practicing as doctor and had small clinic at Basaveshwarnagar.

The accused has further contended that, complainant wish to send his daughter by name Akashatha to abroad for higher studies. However, the complainant did have very good medical practice, as such, was facing financial trouble in order to support his daughter's education at abroad. In that connection, the complainant had mortgaged his site at NGEF Layout in Nagarabhavi with the State Bank of Hyderabad and obtained a loan of Rs.19 lakhs on 22.10.2008.

The accused has further contended that, complainant's daughter returned, after finishing her education at abroad, she started working in a private company in Bengaluru. At that stage, complainant wished to conduct her marriage ceremony and he was facing sever financial difficulty in order to organize the same. The complainant was also facing the difficulty in repaying the interest amount to the bank.

Judgment 19 C.C.No.16603/2015 The accused has further contended that, the complainant has shared all his difficulties with the accused and requested him to construct a residential complex on the said site belong to him. The complainant suggested that, accused should construct 4 flats in the said residential complex and that he would retain two and offered two flats to the accused. The complainant requested the accused to take up the entire construction with the own money of the accused; since he was facing sever financial difficulty.

The accused has further alleged that, taking in to account of existing good relationship between with the complainant, he agreed to the said proposal. In that connection, the complainant and accused agreed that, accused would construct 4 residential flats and out of two that were to be allotted to the complainant and he would keep one himself for the complainant and would sell the another and out of the money so received would undertake to spend for marriage of his daughter. In pursuance of the said agreement, in the month of February, 2012, the accused took the Xerox copies of the title deeds and applied for sanction plan on behalf of complainant. After obtaining the sanction plan, the accused started construction of residential complex on 10.02.2012.

Judgment 20 C.C.No.16603/2015 The accused has further alleged that, he completed the said residential complex construction work within 10 months. Immediately after completion, the complainant took the possession of two flats falling to his share and sold one of the same to one Manju, whom he had introduced to the complainant by way of registered sale deed dated:15.02.2013. In connection with the said Manju, he had paid advance sale consideration of Rs.20 lakhs to the complainant. After receiving the said amount, the accused informed the complainant that, he is not be able to execute the sale deed in favour of Manju, unless, got release his original documents kept bank. As such, immediately, thereafter, the accused along with complainant went to the State Bank of Hyderabad and repaid the loan amount, out of the advance amount of Rs.20 lakhs. In that connection, the Manager of State Bank of Hyderabad had issued the photo copy of the endorsement to the accused and stating that, the loan amount standing in the loan of complainant had been repaid, which got produced the same before this court.

The accused has further contended that, thereafter, in the month of February, 2013, the complainant had executed registered sale deed in favour of purchaser Manju for the total sale consideration of Rs.1,01,00,000/-. The complainant was paid Judgment 21 C.C.No.16603/2015 the balance sale consideration of Rs.81 lakhs by way of demand draft.

The accused has further contended that, out of the amount so received by the complainant from the said purchaser Manju, he undertook the marriage ceremony of his daughter, thereafter, the complainant approached the accused and stated that, he was left with a residuary amount of Rs.30 lakhs and requested the accused stating that, since he was civil contractor and involved in construction business, he should utilize sum of Rs.30 lakhs and repay the same with interest at 1% p.m. to the complainant. In that connection, the complainant handed over sum of Rs.30 lakhs to the accused on 30.02.2013. In that connection, complainant insisted the accused to give cheque for Rs.30 lakhs as guarantee for the said transaction. Accordingly, accused got issued cheque bearing No.144857 drawn on ICICI Bank, Vijayanagar Branch, Bengaluru, as a security.

The accused has further alleged that, in the month of April, 2013, the complainant approached him and stated, he wish to have community hall or recreation hall in the form of pent house on the 4th floor of the said residential complex. In that connection, it was agreed that, both the parties would bare the construction Judgment 22 C.C.No.16603/2015 cost equally. In that connection, the accused and complainant entered into Memorandum of Understanding dated:15.04.2013. The same is also produced before this court. Thereafter, the accused undertook the construction of the said pent house on the 4th floor at the total cost of Rs.15 lakhs. However, in view of the fact that, complainant had advanced the loan of Rs.30 lakhs to the accused; he did not make any payment towards the construction of the said structure. As such, the entire construction cost of Rs.15 lakhs was borne by accused only.

The accused has further alleged that, he kept on paying regular interest per month to the complainant towards loan amount of Rs.30 lakhs. However, after about 6 months, the complainant contacted the accused and stated that, his son-in-law wish to purchase a site and that, he required some financial assistance, hence, requested the accused to return sum of Rs.30 lakhs to him. In that connection, honouring the request of complainant, accused had issued cheque dated:01.08.2013 for sum of Rs.25 lakhs drawn on HDFC Bank, as an account payee cheque and handed over the same to complainant. The complainant got deposited the said cheque and encashed the amount from the account of accused. In that regard, he produced the bank statement. The remaining sum of Rs.5 lakhs was Judgment 23 C.C.No.16603/2015 deducted by the accused towards the cost incurred in respect of construction of recreation hall / pent house on the forth floor of which the complainant was required to pay sum of Rs.7,50,000/-.

The accused has further alleged that, after payment of the entire loan amount, he requested the complainant to return the cheque bearing No.144857 drawn on ICICI Bank, Vijayanagar Branch, Bengaluru. However, the complainant went on dodging the same stating that, he had misplaced the same and would return it as soon as it traced. In that connection, the complainant did return the cheque in order to protect the interest of the accused, in accordance with law, he contacted his banker on 10.02.2014 and got issued instruction for stop payment in respect of cheque bearing No.144857 of ICICI Bank, which is subject matter of the present case. Such being the case, there is no question of accused had issued a cheque dated:04.02.2015.

The accused has further alleged that, the said cheque was issued by the accused to the complainant in the month of February, 2013 solely as security for the loan amount of Rs.30 lakhs to the complainant. The writing of the date in the cheque is not in the hand writing of accused. The accused had issued the said cheque for security, but it has been misused by the Judgment 24 C.C.No.16603/2015 complainant by way of filed false case with the intention to harass him. Other than, the questioned cheque, all other cheques of the accused have been honoured, in that regard, produced his bank statement for king consideration of this court.

The accused has further alleged that, complainant had started harass accused for the fact that, he had deducted sum of Rs.5 lakhs towards the construction of structure on the 4th floor. In that connection, the complainant had forced the accused to sell the two flats fallen to his share to the third persons in the year 2015. Thereafter, he sold two flats and the accused ceased to have contact with the complainant and as such, with a view of further continue harassment, the complainant got dishonoured the questioned cheque at Ex.P1, which gave to him as security and filed false case. The averments of the complaint are false and self serving statement and with the intention of harassing accused and his family, field the false case. There is no legally enforceable debt as against the accused payable to the complainant; there is no cause of action in filing the present case, hence, prayed for dismissal of the present complaint.

20. In order to prove the defence of accused with regard to he gave the stop payment instructions to his banker much earlier, Judgment 25 C.C.No.16603/2015 choosen to examined the Branch Manager by name Pramodh.T.V and he orally examined as DW.2. The DW.2 in his chief examination has deposed that, since 9 months he has been working as a Branch Manger in ICICI Bank, Vijayanagar. Based on the document maintained in the bank, he approached this court to lead evidence. Wherein, the DW.2 has deposed that:

The accused had current account in his bank. He also deposed that, questioned cheque at Ex.P1 is pertaining to his bank and the said cheque was issued in favour of accused. Unless see the date, the unable to say that, exactly when the said cheque was issued by the bank to the accused and stated, the documents available in his bank. The DW.2 has further deposed that, on 22.10.2015, on the request of accused, his bank Deputy Manager got issued a letter and the said document on the objection of the advocate for complainant marked at Ex.D12. The DW.2 has deposed that, in Ex.D12, the accused has stated that, pertaining to his current account, cheque was lost, hence, he requested to destroy the same. Therefore, on 10.02.2014 in the bank computer system, the particulars of Ex.P1-cheque were destroyed. As per the bank entries of DW.2, the Ex.P1-cheque from the said date is not in existence.

Judgment 26 C.C.No.16603/2015 The DW.2 has further deposed that, at the request of account holder, the particulars were destroyed in the computer system, since the questioned cheque was submitted for encashment, it was returned stating 'refer to drawer'. On that time, though money was available in the bank account, it could not be honoured. The DW.1 and DW.2 were subjected for cross- examination from the advocate for complainant in detail.

21. On going through the rival contentions of the parties, it made clear that, complainant got presenting the present for the reasons and allegations pleaded in the complaint, had seriously contended that, the questioned cheque for Rs.30 lakhs got issued by the accused for discharge of existence of legally recoverable debt, the same came to be returned, unpaid for the reasons '04- refer to drawer' as found in Exs.P2 and P3, therefore, he got issued legal notice by R.P.A.D., the same came to be returned undelivered by alleging that, the accused got knowledge of the same, when postman knocked his door to deliver the cover, he deliberately managed to return the postal cover, hence, it was returned undelivered. Despite, not paid the amount covered under the cheque. Therefore, it made clear that, based on the questioned cheque at Ex.P1, the complainant has put forth his claim, therefore, initial statutory presumption as required under Judgment 27 C.C.No.16603/2015 Sections 118 and 139 of Negotiable Instruments Act, has to be drawn in favour of complainant for discharge of existence of legally recoverable debt, the accused got issued the questioned cheque, unless and until contrary prove.

22. In this case, the accused got appeared through his counsel and strongly denied the claim of complainant and attack on the same on various grounds narrated supra. Thereby, he specifically taken up the defence that, he not borrowed the alleged loan of Rs.41 lakhs from the complainant, but as suggested to PW.1, the amount of Rs.42,50,000/- were given by the complainant only for the purpose of return the sale transaction entered into in respect of one of the house built by him and allotted to the share of complainant, since, complainant got sold the very house to the purchaser by name Manju, later, despite he got received Rs.73 lakhs from Smt.Veena, as the said transaction held through accused, after received Rs.1,01,00,000/- from the purchaser - Manju, the complainant got repaid the advance money of Smt.Veena through accused and the said amount is not a loan given to the accused. More particularly, he set out his defence that, he borrowed loan of Rs.30 lakhs from the complainant on the security of signed blank cheque, despite, he got cleared the said loan, he not returned the same, as he deducted Rs.5 lakhs, out of Judgment 28 C.C.No.16603/2015 Rs.7,50,000/-, which shall payable by the complainant as his part of contribution as per Ex.D9 - Memorandum of Understanding in respect of the construction of pent house in the 4th floor. On vengeance, he filed the present case by misusing his cheque at Ex.P1 and he is not liable to pay the said money. The accused has strongly denied, whatever the averments and allegations made in the complaint as well as documentary evidence placed by him. Therefore, it made clear that, accused has not admitted the claim of complainant and he questioned the very transaction including his alleged liability covered under the questioned cheque. However, by virtue of Sections 118 and 139 of Negotiable Instruments Act, it is initial burden on the accused to prove his probable defence in order to defeat the claim of complainant.

23. As re-produced earlier, in the property of the complainant bearing No.95, in Sy.No.23 formed by at NGEF Employees House Building Co-operative Society Ltd., in terms of certain condition , as to two houses were given to accused and two houses were allotted to the share of complainant with the cost of accused, the complainant let the accused to put up the apartments in his property is not in dispute. Even the construction of the houses and expenses incurred by the accused including the allotment of 2 Judgment 29 C.C.No.16603/2015 houses each to the complainant and accused remains undisputed. It is relevant to re-production of undisputed facts, extracted through the mouth of PW.1. The PW.1 clearly agreed that, accused got finished his construction work in his cost and expenses is been clear admission of the complainant, which runs thus:

"DgÉÆÃ¦ £ÀªÀÄUÉ ªÀÄ£É PÀnÖPÉÆnÖgÀÄvÁÛgÉAzÀgÉ ¸Àj. ªÀÄ£É PÀlÄÖªÁUÀ PÀ®Äè, ¹ªÉÄAmï, ªÀÄgÀ¼ÀÄ ªÀÄvÀÄÛ J¯Áè RZÀð£ÀÄß DgÉÆÃ¦AiÉÄÃ £ÉÆÃrPÉÆArzÁÝgÉAzÀgÉ ¸Àj. DgÉÆÃ¦ ¸ÀzÀj ªÀÄ£ÉAiÀÄ£ÀÄß 2012gÀ°è PÀlÖ®Ä ¥ÁægÀA©ü¹ 2015gÀ°è ¥ÀÇtðUÉÆ½¹gÀÄvÁÛgÉ. ªÀÄ£ÉAiÀÄ ¸ÁåAPÀë£ï ¥Áèå£ï RZÀð£ÀÄß DgÉÆÃ¦AiÉÄÃ ªÀ»¹PÉÆArzÀÝgÀÄ. £Á£ÀÄ DgÉÆÃ¦UÉ gÀÆ.41 ®PÀë ºÀt PÉÆnÖzÉÝÃ£ÉAzÀÄ vÉÆÃj¸À®Ä AiÀiÁªÀÅzÉÃ zÁR¯ÉAiÀÄ£ÀÄß F PÉÃ¹£À°è ºÁdgÀÄ ªÀiÁr®è JAzÀgÉ ¸Àj. DgÉÆÃ¦UÉ gÀÆ.41 ®PÀë ºÀt PÉÆnÖzÉÝÃ£ÉAzÀÄ vÉÆÃj¸À®Ä £À£Àß DzÁAiÀÄ vÉjUÉ ªÀgÀ¢AiÀÄ£ÀÄß ºÁdgÀÄ ªÀiÁr®è."

24. From the said clear cut admission made by the PW.1, it made clear that, the accused has undertaken by spent his own money by purchasing building materials got started construction work in the year 2012 and finished in the year 2015 itself is not in dispute. So the factum made clear that, in order to construct the apartment in the property of the complainant as he contended, the Judgment 30 C.C.No.16603/2015 accused borne all the building expenses including sanctioned plan and licence is not in dispute. From which, it made clear that, only because of 2 houses were allotted to accused, he took the risk and responsibility, as he alleged came forward to put up the construction up to 3 floors and got finished the construction remains unchallenged. In view of clear cut admission, it is also made clear that, whatever the expenses incurred by the accused in consenting the construction work was solely made by him only can revel from the same. Even the complainant has not contended, for making such construction, he made payment to the accused or nothing has been contended nor to show that, any payment is made by the complainant in that regard, as admitted by him not produced any document before this court.

25. More particularly, the PW.1 though he alleged in the complaint, he paid Rs.41 lakhs to the accused, he not produced any document and at least reveal that, the said amount paid to the accused, he not submitted his income tax returns. As per his own admission, the fact remains that, the accused himself got finished the construction work at his own risk and cost. In order to show that, whatever the alleged amount of Rs.41 lakhs paid by the complainant, admittedly, he not produced any document. Thereby, the accused made it clear that, as he averred and Judgment 31 C.C.No.16603/2015 alleged in the affidavit evidence, since the complainant had poor practice of his clinic, in order to convert it as income for the purpose conduct the marriage of his daughter and clear the other loans etc., he assigned the construction work to the accused has to be accepted as no money has been paid by the complainant for the construction of house to the accused. Subject to prove that, the complainant got clear the education loan of his daughter and conducted her marriage consequent to the construction of work and by receiving sale consideration. From the above point it made clear that, in the property of the complainant, the accused got finished construction work of apartment of 4 house remains undisputed.

26. As re-produced earlier, the factum of complainant had lent sum of Rs.30 lakhs to the accused as loan by deducting Rs.60,000/- of interest as found in Exs.P7 and P8, very particularly on 14.03.2013, 15.03.2013 and 16.03.2013 for sum of Rs.9,80,000/- each is not in dispute. The accused has categorically contended that, at the time of lent the said loan, complainant has told him that, by receiving advance sale consideration of Rs.20 lakhs from one Manju, as original documents of the property mortgaged to the State Bank of Hyderabad, the complainant took the accused in order to get Judgment 32 C.C.No.16603/2015 execute sale deed in favour of Manju, those original documents are very much necessary, hence, he got cleared Rs.19 lakhs of education loan of his daughter and taken back the original documents by that time, the bank authority has given photostate copy of Ex.D1 to the accused and later by receiving sum of Rs.81 lakhs balance sale consideration, the complainant got executed sale deed at Exs.D2 in favour of purchaser. Before execution of the sale deed at Ex.D2 in favour of purchaser - Manju, the accused has specifically taken the contention that, the complainant earlier agreed to sell the said house in favour of one Smt.Veena, the said transaction narrated by accused were suggested to the PW.1 during his cross-examination. The relevant portion of cross-examination of PW.1 runs thus:

"ªÀÄAdÄ gÀªÀjUÉ D D¹Û £ÉÆAzÀtô ªÀiÁrPÉÆlÖ §½PÀ DvÀ¤AzÀ PÀæAiÀÄzÀ ¥Àæw¥Às® ¥ÀqÉzÀÄ ¢£ÁAPÀB18.02.2013 gÀAzÀÄ DgÉÆÃ¦UÉ gÀÆ.41 ®PÀë PÉÆnÖzÉÝÃ£É. D ºÀt PÉÆmÁÖUÀ DgÉÆÃ¦ ¤¦-1 gÀ ZÉPÀÌ£ÀÄß £À£ÀUÉ DvÀ PÉÆnÖzÀÝ£ÀÄ. D ZÉPÀÌ£ÀÄß DgÉÆÃ¦AiÉÄÃ ¨Àswð ªÀiÁrPÉÆnÖzÀÝgÀÄ. D ZÉPï£À «£ÀB D ºÀt ¥ÁªÀw §UÉÎ ¨ÉÃgÉ AiÀiÁªÀÅzÉÃ zÁR¯ÉAiÀÄ£ÀÄß DvÀ¤AzÀ §gÉ¬Ä¹PÉÆAr®è. ªÀÄAdÄgÀªÀjUÉ ªÀiÁgÁl ªÀiÁrzÀ ¥sÁèl£ÀÄß ªÉÆzÀ®Ä ¨ÉÃgÉAiÀÄªÀjUÉ ªÀiÁgÁl ªÀiÁrzÀ §UÉÎ ¨ÀsgÀªÀ¸É ¤ÃrgÀ°®è. «ÃuÁ UÉÆvÀÄÛ, £À£ÀUÉ ¥ÀjavÀ¼À®è. ªÀÄAdÄ gÀªÀjUÉ ªÀiÁgÁl ªÀiÁrzÀ ¥sÁèl£ÀÄß DPÉ Judgment 33 C.C.No.16603/2015 RjÃ¢ ªÀiÁqÀÄªÀ ¸À®ÄªÁV £À£ÀUÉ gÀÆ.40 ®PÀë PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. DPÉ gÀÆ.75 ®PÀëPÉÌ CzÀ£ÀÄß RjÃ¢¸ÀÄªÀÅzÁV w½¹zÀÝ¼ÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. ªÀÄAdÄ CzÀ£ÀÄß gÀÆ.1,01,00,000/- PÉÌ RjÃ¢¸ÀÄvÉÛÃ£ÉAzÀÄ ºÉÃ½zÁUÀ «ÃuÁ UÀ¯ÁmÉ ªÀiÁr ºÉÆÃVzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è."

27. The PW.1 in his cross-examination further deposed that:

"«ÃuÁ gÀªÀjAzÀ £Á£ÀÄ ¥ÀqÉzÀAvÀºÀ ºÀtªÀ£ÀÄß ªÀÄgÀ½¸À®Ä gÀÆ.41 ®PÀëªÀ£ÀÄß DgÉÆÃ¦UÉ, ªÀÄAdÄ gÀªÀjUÉ ªÀiÁgÁl ªÀiÁrzÀ §AzÀ ºÀtzÀ¯ÉèÃ £Á£ÀÄ PÉÆnÖzÉÝ£ÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. «ÃuÁ gÀªÀgÀÄ ºÀtªÀ£ÀÄß PÉÆnÖzÀÄÝ 7 wAUÀ¼À PÁ® gÀÆ.40 ®PÀë £Á£ÀÄ ElÄÖPÉÆAqÀ PÁgÀt 2 ¥Àæw±ÀvÀ ªÀiÁ¹PÀ §rØAiÀÄ£ÀÄß ¸ÉÃj¹ gÀÆ.42,00,000/- ªÀ£ÀÄß DgÉÆÃ¦AiÀÄ ªÀÄÄSÁAvÀgÀ DPÉUÉ £Á£ÀÄ PÉÆnÖzÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆÃ¦ ªÀÄzÀsåªÀwðAiÀiÁzÀ PÁgÀt DvÀ£À ªÀÄÄSÁAvÀgÀªÉÃ £Á£ÀÄ «ÃuÁ gÀªÀjUÉ ºÀt PÉÆr¹zÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è."

28. On meticulous perusal of the probable defence taken by the accused, it was the contention of the accused that, before the complainant got execute sale deed in favour of Manju as per Ex.D2 on 18.02.2013, the complainant agreed to sell the very said flat in favour of Smt.Veena and accordingly, he got received Rs.40 lakhs as advance against the sale consideration of Rs.75 lakhs.

Judgment 34 C.C.No.16603/2015 Since, complainant got sold that property to higher price to Manju, an earlier transaction were entered through accused, the same got cancelled by way of executing sale deed at Ex.D2. The complainant, as the earlier transaction held through accused with Smt.Veena, Rs.41 lakhs was repaid through him to the said Smt.Veena. The said suggestions have been seen through during cross of PW.1. The said suggestions were made to the PW.1, wherein, he clearly admitted that, by receiving the sale consideration from the purchaser - Manju on 18.02.2013, he gave Rs.41 lakhs to the accused, by that time, accused got issued Ex.P1-cheque to him. If at all, the complainant got paid money of Rs.41 lakhs to the accused directly, definitely, he should narrate in the pleading as well as affidavit, what purpose he gave for huge amount of Rs.41 lakhs and exactly where he paid, on whose presence, on which security he paid, nothing has been narrated. But he simply stated that, by receiving sale consideration on Ex.D2 paid Rs.41 lakhs, by that time, accused got issued the Ex.P1-cheque for Rs.30 lakhs. If at all, accused gave Rs.41 lakhs to the accused either as loan or any kind of financial assistance definitely, it is repayable by the accused to the complainant. By doing such financial transaction of Rs.41 lakhs definitely, what purpose the complainant forward to pay the said huge amount, Judgment 35 C.C.No.16603/2015 nothing has been explained, not document has been placed, but simply stated, accused gave cheque at Ex.P1 for Rs.30 lakhs and by filled himself and by that time, he not executed any document from him. If at all, he paid Rs.41 lakhs to the accused, as he not repaid that amount, the entire amount of Rs.41 lakhs is to be payable to the complainant. Then, he no needs to receive the cheque for Rs.30 lakhs, he ought to receive cheque for Rs.41 lakhs. Why he reduced the amount to Rs.30 lakhs as found in Ex.P1 also no satisfactory explanation made from the complainant.

29. The PW.1 has deposed that, before selling the flat to Manju, he was not assuring to anyone. But in his further cross- examination stated supra, in the 1st portion, it made clear that, the alleged Smt.Veena is known to the complainant, but he saying that, she is not familiar to him. The accused has specifically suggested through his advocate to the PW.1 that, the property which sold at Ex.D2 to Manju, prior to that, the said Smt.Veena in order to purchase the very said property from the complainant for sum of Rs.75 lakhs, she gave Rs.40 lakhs to the complainant, but the PW.1 has denied the same. It was also relevant to focus on the suggestion made to PW.1 that, when the said Manju came forward to purchase the very said flat from the complainant for Judgment 36 C.C.No.16603/2015 Rs.1,01,00,000/-, the said Smt.Veena alleged to be made galata with the complainant, but the PW.1 has denied the same. It is significant fact to note that, the accused has time and again has suggested that, complainant earlier assured Smt.Veena to sell his flat and later the very flat was sold to Manju, but he denied the same. When in the later portion of the above re-production cross- examination, it also reveal that, after receipt of sale consideration from Manju as per Ex.D2, for refund of Rs.41 lakhs received from Smt.Veena, as the complainant got retained her money for the period of 7 month, by adding interest at 2% p.m. for return the said money, the complainant got paid her money through accused at Rs.42,50,000/-. Since, the accused was the mediator in respect of sale transaction earlier held between complainant and Smt.Veena, through him only the complainant paid the said money. Thereby, the accused has attack on the claim of complainant, whatever Rs.41 lakhs paid by the complainant to accused, it is not lent to the accused, but it was the amount paid by the complainant to Smt.Veena through accused only, therefore, he is not liable to pay money. The subsequent suggestion made to PW.1 that:

"DgÉÆÃ¦ £À¤ßAzÀ JA¢UÀÆ gÀÆ.41 ®PÀë ¸Á® ¥ÀqÉ¢®è JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆÃ¦ gÀÆ.30 ®PÀë ¸Á® £À£ÀUÉ ªÀÄgÀ½¹zÀÝgÀÆ, Judgment 37 C.C.No.16603/2015 DvÀ¤AzÀ ¨ÀszÀævÉUÁV ¥ÀqÉzÀAvÀºÀ ¤¦-1 gÀ ZÉPÀÌ£ÀÄß zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥Àr¹PÉÆAqÀÄ ¸ÀÄ¼ÀÄî ¥ÀæPÀgÀt zÁR®Ä ªÀiÁrzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è."

30. The later suggestion made to PW.1, it clear the defence taken by the accused that, he is not borrowed Rs.41 lakhs loan from the complainant, but only borrowed sum of Rs.30 lakhs from the complainant in installment like Rs.9,80,000/- on 3 times by deducting the interest and by that time, the complainant took cheque from accused for the said money, the same got misused by the complainant by projecting that, the accused borrowed loan of Rs.41 lakhs. The said suggestion made it clear that, earlier complainant has projected sum of Rs.41 lakhs loan paid to accused on the security of Ex.P1-cheque for Rs.30 lakhs. As admitted by the complainant, to pay the said huge loan of Rs.41 lakhs, no reasons, no document or any other evidence has been placed. No doubt, the complainant got relied upon the Ex.P7 bank statement got marked through accused on 03.10.2018. On meticulous perusal of the same, it discloses, on 18.02.2013 sum of Rs.41 lakhs cash paid. On meticulous perusal of the same, it does not disclose the same of the accused. Simply it has mentioned that, cash paid No.65386.

Judgment 38 C.C.No.16603/2015

31. It is significant fact to note that, if the case of complainant was genuine as to the payment of loan of Rs.41 lakhs to the accused, definitely, the complainant must have plead in the complaint by stating, he lent loan of Rs.41 lakhs to the accused exactly on 18.02.2013. It is significant fact to note here itself that, the said bank statement of the complainant got marked at Ex.P7 through DW.1 only. Why the complainant has avoided to leave the said document, as evidence through the PW.1 only is not been explained. More particularly, it has to be noted that, in the cross-examination of PW.1, he clearly admitted that, as to show Rs.41 lakhs has been paid to the accused, he had no document. Even to reveal that, the said huge amount of transaction let out by the complainant to the accused, it require to be note or report in the income tax returns, the same also not been placed. That apart, since it is the huge amount, definitely, at least in the presence of some witnesses, the amount could have been disburse by the complainant, but he not choosen to did so. Therefore, the production of Ex.P7 bank statement of the complainant, through DW.1 it reveal that, the complainant avoided the cross question by way of suggestion from the side of accused, he placed the document through the DW.1 only. Therefore, the right of the accused was curtile to suggest on the contents of Judgment 39 C.C.No.16603/2015 Ex.P7 marked through DW.1. The complainant is avoided the defensive suggestion from the accused by way of production document through the DW.1 only, therefore, the genuineness of approach of complainant is also suspectable.

32. That apart, in the complaint, he has not stated anything about the lent of loan to the accused. But in the above production of cross-examination of PW.1, it discloses that, the complainant claimed, he gave Rs.41 lakhs to the accused, by that time, accused got issued Ex.P1-cheque. Even he not narrated, whether it was loan or towards expenses incurred by the accused for the purpose of construction apartment, was paid by the complainant to him, nothing has been stated. It is significant fact to note here itself that, para No.3 of the complaint, he seriously alleged on the conduct of the accused by stating that, accused misused his honesty and friendship and made out sham transaction, out of the construction activities from 01.02.2013 to 30.07.2013 and collected sum of Rs.41 lakhs from the complainant towards short term hand loan. To meet certain expenses on account of the construction of building transaction, while selling and registering of portion of apartment to buyer. The said pleading on the one hand, the complainant has alleging and questioned the character of the accused and alleged against him Judgment 40 C.C.No.16603/2015 that, he is not honesty and he misused the friendship and did sham transaction in construction work, that too, in between 01.02.2013 to 30.07.2013.

33. In the cross-examination of PW.1, he clearly admitted, in the 1st day of cross-examination that, the accused has started construction in the year 2012 and concluded in the year 2015. Through out the cross of PW.1, there is no allegation as to the accused regarding misuse of honesty or friendship or did sham transaction. If it was anything mischief caused by the accused, definitely, it was him to narrate in his cross-examination, but nothing has explained. In the pleading, he alleged the character of accused, as to did sham transaction out of the construction activities in between 01.02.2013 to 31.07.2013. The said portion of allegation definitely discloses that, the complainant was not specified with the conduct of the accused in the way of construction work. When accused himself did construction of 4 flats, in the property of complainant at his risk and cost how the complainant was adversely affected by the same, how he misuse of the honesty and friendship and did the sham transaction, as alleged, nothing has been pleaded. As he said, the accused got concluded the construction and handed over the possession.

Judgment 41 C.C.No.16603/2015 Therefore, there is no substance in pleaded so are the same is lacks in the cross-examination of PW.1.

34. It is significant fact to note that, the later portion of allegation made in the pleading in the very same paragraph, on the first part alleged about conduct of accused as to misuse of his honesty and friendship and sham transaction, the same para it was alleged that, Rs.41 lakhs collected by accused as short-term hand loan. If it was so, it is the complainant has to narrate, when it was paid, what was the compelling circumstances to him to pay the accused, despite, there was agreement made between complainant and accused as to conclude the construction of 4 flats at the risk and cost of the accused, why complainant paid the said huge amount is not been explained. Even, on which date that the said money was paid, on whose presence, how he mobilized the fund and on which guarantee he handed over the said money to accused is also not been narrated nor explained. First of all, to show the reciprocal agreement entered into between complainant and accused as to the construction of apartment in the property of the complainant, none of the parties have produce any document.

35. If at all, before making such huge transaction it requires to reduce into writing in order to avoid the future legal obligations.

Judgment 42 C.C.No.16603/2015 But to reflect the responsibility of either of the parties, none of them choosen to produce any agreement as such, pertaining to the construction of building. Under such circumstances, on which score, the complainant has questioned the conduct of the accused regarding misuse of his honesty and friendship and made sham transaction between 01.02.2013 to 31.07.2013 nothing has been proved. Thereby, he himself disproved the sham transaction did by the accused. However, the accused got produced the Ex.P9 - Memorandum of Understanding, though it was entered into in respect of construction of pent house, it reveal, the earlier transaction held between complainant and accused with regard to construction of apartment up to 3 floors. The agreement with regard to construction of building entered into between both the parties at undisputed point of time are very much necessary to prove their responsibilities and liabilities, but none of them have not produced. One thing can gather from the Ex.P9 that, since earlier joint venture carried out by the accused came to successfully ended, the Ex.P9 came into force.

36. In the complaint, there is serious lack on the part of complainant. Though there was transaction held pertaining to the construction work, how he mix up with alleged the short term hand loan of Rs.41 lakhs is not been explained. If at all, any short term Judgment 43 C.C.No.16603/2015 loan he paid, definitely, the amount is huge money, therefore, it requires to be held through the written document or at least in the presence of witnesses, nothing has been stated by the complainant in the pleading nor explained in his cross- examination. In the cross-examination of PW.1, he clearly stated and to show that, he lent of Rs.41 lakhs to the accused as short term hand loan, admittedly, he not possessed any document. If at all, he possessed the Ex.P7 - Bank Statement, which is reveal the payment of Rs.41 lakhs, definitely, he could have been pleaded and explained in his evidence, but nothing has done by him, for the reasons better known to him, he avoided the production of Ex.P7 in his evidence. Though, the said Rs.41 lakhs cash paid is reveled in his statement on 18.02.2013, it does not disclose the said money was directly paid to the accused.

37. No doubt, the complainant got produced Ex.P8 - Bank Statement. Wherein, at page No.2 it revel that, on 18.02.2013 sum of Rs.41 lakhs were credited, to Kumaraswamy.M. Therefore, it made clear that, either Rs.41 lakhs or Rs.40 lakhs were paid from the account of complainant to the account of accused. The accused by way of defensive suggestion made to PW.1 has gave his explanation that, whatever the amount so paid either Rs.41 lakhs or Rs.42,50,000/- including interest was against Judgment 44 C.C.No.16603/2015 receipt of Rs.40 lakhs from Smt.Veena, the said money was given by complainant only for the purpose of repay the amount so received from Veena, not any loan or money paid to the accused. No doubt, the accused has projected that, since he was mediator in respect of the sale consideration talks were made between complainant and Smt.Veena, he got received money and paid to the accused. In order to show that, the said money was not reached to Smt.Veena, it is complainant has to explain. No doubt, complainant has stated, he knew Smt.Veena and denied the said suggestion of sale transaction talks were made between him and Smt.Veena and got received Rs.40 lakhs. Therefore, it is the complainant require to brought Smt.Veena to disprove the very contention of accused, as to payment of either Rs.41 lakhs or Rs.42,50,000/- as suggested by the accused. That part, during the course of cross of DW.1, he denied the very suggestion made from the complainant as to borrowal of Rs.41 lakhs from the complainant by accused and for its portion of repayment accused got issued the questioned cheque.

38. The accused specifically stated that, he not borrowed the loan of Rs.41 lakhs, as alleged by the complainant, but it was the amount paid by the complainant to Smt.Veena through the accused, as he was mediator for the sale transaction between Judgment 45 C.C.No.16603/2015 them. Thereby, he created one of strong circumstances to suspect the very claim of complainant. Therefore, it was the complainant shall have to examine Smt.Veena in order to disprove the probable defence set out by the accused, but in that regard, he did not did any effort.

39. If at all, as contended by the complainant, he paid Rs.41 lakhs to the accused as on 18.02.2013 and accused got issued the questioned cheque for part payment of Rs.30 lakhs definitely, unless clear the said loan, was it necessary to disburse again Rs.30 lakhs as found in Exs.P7 and P8 on 14.03.2013, 15.03.2013 and 16.03.2013 is also created doubt. When the earlier huge amount of loan, if at all lent by complainant to the accused, got unpaid, though it was alleged to be taken by the accused without any security document, except the cheque at Ex.P1, on which confidence the complainant came forward to pay another loan of Rs.30 lakhs to the accused itself created doubt. It is pertinent to note that, if at all, the complainant took cheque at Ex.P1 as security the loan of Rs.41 lakhs, what was the security document was taken by him in respect of disbursement of loan of Rs.30 lakhs is not been pleaded nor been proved in the evidence of PW.1 or DW.1. It is significant fact to note that, the complainant not lent loan to any profit or interest. As per his own Judgment 46 C.C.No.16603/2015 clear cut admission, it made clear that, by deducting Rs.60,000/-, out of Rs.30 lakhs, he gave only sum of Rs.29,40,000/- to the accused. it made clear that, the complainant is doing money lending business, therefore, he deducted interest and paid loan of Rs.30 lakhs to the accused. In order to do the said money lending business as required under the relevant provision of the Money Lenders Act, the complainant needs to secure the permission, but in that regard, no document is been placed by him. However, though he contended, he deducted sum of Rs.60,000/- out of Rs.30 lakhs as interest, what was the interest charge by him and what was the amount deducted by him in respect of the earlier loan of Rs.41 lakhs is also not been explained.

40. The accused specifically contended that, he only received Rs.30 lakhs by deducting Rs.60,000/- as interest on the security of Ex.P1-cheque and admittedly, the said amount of Rs.30 lakhs loan was repaid by the accused to the complainant. If at all, the complainant lent loan of Rs.41 lakhs to the accused on 18.02.2013 itself, as he deposed by the PW.1, he stated that, Rs.30 lakhs loan borrowed in between 14.03.2013 till 16.03.2013 were repaid by the accused could have been adjusted to the 1st unsecured loan of Rs.41 lakhs, but he not did so. He clearly admitted that, Rs.30 lakhs loan were repaid by the accused.

Judgment 47 C.C.No.16603/2015 When the PW.1 was admitted Rs.30 lakhs admitted loan borrowed by the accused was cleared in its entirety, why the earlier loan was stands still, the same amount could have been adjusted to the earlier loan or not could have been explain, but he not did so. Therefore, during the persistence of earlier huge amount of Rs.41 lakhs alleged to be paid on 18.02.2013 against within the span of one month in between paid the another loan of Rs.30 lakhs to the accused is highly improbable and not satisfactorily proved by the complainant. If at all, the complainant was very deligent in securing security of cheque at Ex.P1 in respect of loan of Rs.41 lakhs, to the very next loan of Rs.30 lakhs, what was the security document he secured from the accused other than the reason assigned by the accused is also not clearly proved by the complainant nor remove the suspicious or the cost cloud on the transaction by the complainant. Therefore, there some strength in the evidence of accused that, there was not borrowed the loan of Rs.41 lakhs as alleged by the complainant nor issued the questioned cheque as security for portion of payment of Rs.30 lakhs, but the said cheque was issued by him in respect of admitted loan of Rs.30 lakhs. Therefore, it was the reverse burden casted on the complainant by virtue of Sections 118 and 139 of Negotiable Instruments Act, Judgment 48 C.C.No.16603/2015 to prove the guilt of the accused beyond the reasonable doubt, by establishing the true transaction held between complainant and accused.

It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:

"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".

In the decision reported in ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:

(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -

Something probable has to be brought record -

Burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - Thereafter the said presumption arising under Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon Judgment 49 C.C.No.16603/2015 presumptions under Evidence Act, 1872 Section 114 (common course of natural even human conduct and public and private business) -

Evidence Act, 1872 - Section 114 - Presumptions of fact under".

In the decision of AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:

"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".

41. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused.

42. The accused has specifically cross-examined the PW.1, in doing so; he got obtained certain admissions from the mouth of PW.1. Wherein, the PW.1 has clearly admitted that, without any money invested by the complainant by providing his property let the accused to put up the construction up to 3 floors for 4 flats at the risk and cost of accused. From which, it made clear that, with Judgment 50 C.C.No.16603/2015 '0' investment made by the complainant, the accused go on made his investment and effort in raised the apartment. Therefore, there is no found any initial investment made by the complainant in the said apartment. The accused has alleged that, the profession of complainant was very poor and in order to conduct the marriage of his daughter, he let the accused to put up the construction and by sold one of the house gathered the money of Rs.1,01,00,000/- and got cleared the responsibilities and clear the earlier loan, conduct the marriage and by spending money so, he had no money to pay loan to the accused as alleged. Indirectly, the accused has questioned the financial capacity of the complainant. From the suggestion made to PW.1, it can gather that, earlier the complainant took the advance of Rs.20 lakhs from the purchaser - Manju and by making use of the same, the complainant got cleared his bank loan of Rs.19 lakhs from State Bank of Hyderabad and by clear the said loan got obtained the clearance certificate at Ex.D1. It was also contended that, on 18.02.2013 since complainant came forward to sold that property to Manju for the sale consideration of Rs.1,01,00,000/- as against the assurance given to Smt.Veena for sold it for Rs.73 lakhs, despite, received Rs.40 lakhs as advance through the accused only, since the said transaction made through him as mediator Judgment 51 C.C.No.16603/2015 Rs.42,50,000/- were paid by the complainant to Smt.Veena on 18.02.2013 itself. By receiving the balance sale consideration of Rs.81 lakhs by virtue of sale deed dated:15.02.2013 as per Ex.D2. From which, it made clear that, sum of Rs.60 lakhs were already been lost by the complainant in clear the said dues.

43. That apart, it also the allegation of the accused that, residuary amount was left with complainant, he lent sum of Rs.30 lakhs to the accused for making investment in his business on monthly interest at 1% p.m. The accused specifically stated that, the said sum of Rs.30 lakhs loan were taken by him on the said interest, on the security of Ex.P1-cheque. From which, it made clear that, as said earlier Rs.60 lakhs + Rs.30 lakhs were already invested by the complainant.

44. It is significant fact to note that, that apart, in order to successfully concluded venture by the accused, the complainant got booked the tickets to visit to Singapur on 06.04.2013 paid Rs.1,50,000/- as ticket fair, accordingly, he clearly admitted the family of the complainant and accused got visited Singapur in between 20.02.2013 till 03.03.2013. That apart, though as per Ex.D9 in respect of the construction of pent house by investing Rs.15 lakhs on the equal share of complainant and accused for Judgment 52 C.C.No.16603/2015 the tune of Rs.7,50,000/- each, the complainant claimed got paid Rs.5 lakhs to the accused. From which, it made clear that, in all the complainant got invested his money for the tune of Rs.96,50,000/-. This was the amount was spent by the complainant, out of the sale consideration of Rs.1,01,00,000/- received from purchaser as per Ex.D2. At this juncture, not discussed about the expenses incurred by the complainant for conduct the marriage of his daughter by holding the balance amount of Rs.4,50,000/- in his hand out of the sale consideration so received as per Ex.D2. It is significant fact to note that, the accused has specifically contended that, as admitted by both the parties in between 14.03.2013 till 16.03.2013 on the cheque at Ex.P1, the complainant lent Rs.30 lakhs loan to the accused on the interest at 1% p.m.

45. The accused has specifically contended that, after six months from the receipt of said loan, the complainant contacted the accused and stated that, his son-in-law wishes to purchase site, hence, he require the financial assistance, therefore, complainant requested the accused to refund the loan amount of Rs.30 lakhs. Accordingly, the accused by deducting Rs.5 lakhs out of the contribution of Rs.7,50,000/- payable by the complainant as per Ex.D9 for the purpose of construction of pent Judgment 53 C.C.No.16603/2015 house for Rs.25 lakhs, he got issued the cheque and the same got honoured by the complainant. Thereby, he cleared whatever loan borrowed by the complainant. But the complainant himself liable to pay sum of Rs.2,50,000/- towards the balance expenses incurred by him as per Ex.D9. The accused despite, got cleared the loan to the complainant, not returned the questioned cheque to him, but misuse the same. As per say of accused nothing has payable by him to the complainant, but the complainant himself liable to pay Rs.2,50,000/- towards the expenses incurred by him for the construction of pent house. Because of accused did so by deducting Rs.5 lakhs, out of Rs.7,50,000/- by misusing the security cheque at Ex.P1 given by the accused in respect of loan of Rs.30 lakhs filed the false case and he is not liable to pay any such money. As said earlier, as admitted by the PW.1 out of the sale consideration of Rs.1,01,00,000/-, he spent Rs.96,50,000/-.

46. It is pertinent to note that, during the course of cross of PW.1, question was raised by the accused to the PW.1 and asked that, what was the expenses incurred for the marriage of the daughter of the complainant. In his cross-examination, the PW.1 has deposed that, he does not know how much expenses he incurred for the marriage of his daughter. Even he deposed that, approximately expenses incurred by him also not able to disclose.

Judgment 54 C.C.No.16603/2015 The accused has specifically asserted that, by receiving the sale consideration as per Ex.D2 complainant solemnized marriage of his daughter, but he deposed, her marriage was solemnized on 30.07.2012. As said by PW.1, her marriage was solemnized prior to the Ex.D2 dated:15.02.2013 definitely, it is require to him to produce the documents, such as, wedding card or any photographs pertaining to the same in order to prove that, he not made use of money received out of the sale consideration as per Ex.D2. But no such effort is been made. As suggested by the accused for conducting the marriage of the complainant's daughter, he also sped huge amount, therefore, he had no money to lent, but falsely projected, he lent Rs.41 lakhs to the accused. Thereby, the accused has raised reasonable doubt circumstances as to possess the requisite fund in the hands of the complainant as already spend the money.

47. It is pertinent to note that, if at all, the marriage was solemnized on 30.07.2012 itself prior to the sale deed at Ex.D2 dated:15.02.2013, the complainant no need to produce the documents, if he able to prove, he had sufficient money in his account, unless the receipt of sale consideration from Manju. As discussed earlier, it made clear that, prior to receive Rs.1,01,00,000/- as per Ex.D2 from the purchaser, the Judgment 55 C.C.No.16603/2015 complainant had sufficient funds in his account, he not produced any document. Admittedly, he had account at State Bank of Hyderabad, and ICICI Bank. But he choosen to produced his bank statements pertaining to ICICI Bank as per Exs.P7 and P8, he not produced statement of account pertaining to State Bank of Hyderabad, in order to show his bank balance and financial capacity. It is significant fact to note that, on close perusal of Ex.P7, the bank statement pertaining to the complainant for the period from 01.02.2013 till 31.07.2013, it discloses that, on 01.02.2013 as balance forwards as shown in the account was '0'. As per Ex.P7 on 01.02.2013 the bank balance of the complainant was '0'. On 16.02.2013 to his account sum of Rs.81 lakhs sale consideration as found in Ex.D2 was credited. Therefore, it made clear that, before the sale transaction as per Ex.D2, the bank balance of complainant was zero/'0'. Therefore, it made clear that, earlier to the sale transaction at Ex.D2, the complainant was not financially in health condition to lent the loan.

48. Therefore, he came forward to enter in to settlement with accused, let him to proceed with construction at his investment of cost by allotting 2 flats to him and 2 flats for accused. Whatever the sale consideration received by the complainant of Rs.1,01,00,000/-, sum of Rs.19 lakhs were paid to the State Bank Judgment 56 C.C.No.16603/2015 of Hyderabad as per Ex.D1 and sum of Rs.41 lakhs as found in Exs.P7 and P8 was repaid advance sale consideration received from Smt.Veena as urged by the accused. Remaining amount of Rs.30 lakhs were lent to the accused as loan, on the security of Ex.P1-cheque, the same also as admitted by the PW.1 got repaid by adjusting Rs.5 lakhs towards pent house and remaining amount of Rs.25 lakhs through cheque. Even, the complainant not able to pay the entire pent house amount of Rs.7,50,000/- to accused as found in Ex.D9, therefore, the accused while return Rs.30 lakhs the liability of Rs.5 lakhs only deducted by left Rs.2,50,000/- and repaid Rs.25 lakhs, thereby, got cleared the loan of Rs.30 lakhs. Therefore, even the complainant has spent Rs.1,50,000/- for the families of him and accused to visit Singapur, thereby, the complainant already spent the huge amount of Rs.96,50,000/-. In order to pay Rs.41 lakhs to the accused, the complainant had no source, though he produced statement at Exs.P7 and P8, it does not reveal the said money was paid to the accused. The complainant was very deligent in deducting interest while lent loan of Rs.30 lakhs as found in the statements at Exs.P7 and P8.

49. If at all, any lone was lent by him for the tune of Rs.41 lakhs to the accused, as he alleged, on the security of portion of cheque Judgment 57 C.C.No.16603/2015 for Rs.30 lakhs without any security document or loan agreement, he lent the subsequent loan of Rs.30 lakhs without any security document, itself creates doubt as to the claim put forth by the complainant. The accused by brought all affairs of complainant held subsequent to the Ex.D2 sale deed as destroyed the case of complainant. Moreover, the accused has able to prove that, the complainant was financially not strong and he not lent the alleged loan of Rs.41 lakhs to him on the security of questioned cheque at Ex.P1. The very act of the complainant is creates doubtful.

50. On going through the complaint allegations, he has not specified exactly, when, where, on whose presence and on which source he mobilized the fund and hand over to the accused for the tune of Rs.41 lakhs is not been disclosed. His evidence is also very much silent in that regard. On going through his pleading it discloses, the construction activities done from 01.02.213 to 31.07.2013. As per this pleading, the construction was carried out for the period of 5 months. But in the cross-examination of PW.1 as earlier discussed he stated, the construction was started during 2012 and concluded in the year 2015, it is against his own pleading. The accused should did the construction work at his risk and cost as narrated in his affidavit evidence, he started construction work on 10.02.2013 and concluded within 10 months.

Judgment 58 C.C.No.16603/2015 Therefore, it appears that, as per say of accused, as on January, 2013 whatever the construction of work undertaken by the accused in the property of the complainant came to be concluded. The complainant has not discloses, when he paid Rs.41 lakhs to the accused. The accused specifically denied the receipt of said amount and issuance of questioned cheque for repayment of portion of amount of Rs.30 lakhs. The complainant has not discloses in his evidence about payment of Rs.41 lakhs. But the Exs.P7 and P8 documents produced by the complainant discloses, on 18.02.2013 the said sum was paid in the name of accused.

51. It is significant fact to note that, the execution of sale deed by the complainant in favour of purchaser Manju dated:15.02.2013, it made clear that, whatever the construction of apartment undertaken by the accused were concluded. Therefore, on the said date he sold the property in favour of purchaser and got received sale consideration. From which, it is clear that, the sale consideration was received on 15.02.2013 sum of Rs.81 lakhs. The same is also reflected in the bank statement of the complainant. The PW.1 either in the pleading or in his cross-examination not stated about on which purpose the accused Judgment 59 C.C.No.16603/2015 needs Rs.41 lakhs amount. But in the cross-examination of PW.1, it is suggested that:

"¤r-2 gÀ ¥ÀæPÁgÀ §AzÀ ºÀtzÀ ¥ÉÊQ, G½zÀ ºÀAvÀzÀ PÁªÀÄUÁj ªÀÄÄAzÀÄªÀgÉ¸À®Ä ¦AiÀiÁð¢ £À£ÀUÉ gÀÆ.41 ®PÀë ¤ÃrzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëAiÀÄÄ ¸ÀévÀB ªÀÄÄAzÀÄªÀgÉzÀÄ £Á®ÄÌ CAvÀ¹Û£À PÀlÖqÀ PÁªÀÄUÁj ªÀÄÄVzÀ £ÀAvÀgÀªÉÃ, ¦AiÀiÁð¢ ¤r-2 gÀ ¥ÀæPÁgÀ £É® CAvÀ¸ÀÛ£ÀÄß ªÀiÁgÁl ªÀiÁrzÀÝgÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."

52. On meticulous perusal of the suggestion made from the side of complainant through his counsel, without giving any foundation the purpose of loan, but in the cross-examination of DW.1 it was suggested that, out of the money so received from purchaser as per Ex.D2, it was claimed for the purpose of continue further construction, the complainant gave sum of Rs.41 lakhs to the accused, but the accused has denied the same. The accused further volunteers that, after construction of the entire work, then only complainant had sold his property at Ex.D2 and got received sale consideration. The said factum reveal that, the suggestion discloses for the purpose of further construction, the accused alleged to be received Rs.41 lakhs. As per the contention of accused, it made clear that, by virtue of registered sale deed dated:15.02.2013 complainant sold property to purchaser. It is not his contention that, before completion of Judgment 60 C.C.No.16603/2015 construction work, he sold that property. In that regard, no recitals in the sale deed at Ex.D2. Unless completion of construction work, sell the property on 15.02.2013 itself does not arise. Therefore, it made clear that, the accused on or before 15.02.2013 itself got concluded the construction work, therefore, once again for the further construction work needs to borrow loan from complainant as suggested does not arise, as on 15.02.2013, the construction was pending the complainant has not produced any document. Therefore, the concluded sale transaction held at Ex.D2 dated:15.02.2013, it made clear that, since the construction of the accused undertaken in the property of the complainant was completed, the complainant was unable to sale his property. Therefore, for the further construction he gave Rs.41 lakhs to the accused, it is highly impossible and to make believe the same, the complainant has not furnished any acceptable evidence. Therefore, the purpose of alleged lent of loan for further construction of the house, after the valid registered sale deed has been executed as per Ex.D2, does not arise. Thereby, complainant failed to establish the purpose of borrowing loan of Rs.41 lakhs. The accused has successfully proved that, the said Rs.41 lakhs received, not as loan or for the purpose of construction of further building, but it was received only for the Judgment 61 C.C.No.16603/2015 purpose of repayment of advance amount of Rs.40 lakhs from Smt.Veena received by the complainant with interest. There is some force in the defence of the accused, the complainant has not removed the same.

53. It is pertinent to note that, the questioned cheque whenever submitted by the complainant for collection, the same came to be returned for the reasons 04-refer to drawer. In that regard, the accused gave explanation by way of cross-examining the PW.1 as well as in his evidence coupled with the suggestion made in the cross-examination of DW.2 that, despite, he got cleared the loan of Rs.30 lakhs to the complainant, he not returned the said cheque and hence, he gave instructions to his banker as to destroy the cheque. In that regard the suggestion made to PW.1, he denied the same. The DW.1 specifically stated that, he gave instructions to his banker to destroy the cheque, the same evidence has been reflected in the evidence of DW.2 also. More particularly, the DW.2 - Bank Manager has specifically stated that, as requested by the accused regarding particulars of Ex.P1- cheque was destroyed in his bank computer and as per bank record there is no existence of cheque at Ex.P1, therefore, they have gave endorsement stating 04-refer to drawer.

Judgment 62 C.C.No.16603/2015

54. The DW.1 and DW.2 have denied the suggestion that, by colluding with the bank officials got created Ex.D12. Either it is right or wrong, the complainant got moved an application for destroy the cheque particulars in his bank account, therefore, bank gave such endorsement. The DW.2 has specifically stated that, at the request of the accused after destroy the particulars of the cheque pertaining to the accused, the endorsement at Ex.D12 were issued by it. To disbelieve that contention, there is no valid ground before this court. From which, the only one conclusion that arrived as on 10.02.2014, the accused had disputed the validity of the cheque at Ex.P1 in the custody of complainant, therefore, as he was not liable to pay any money to complainant, under the different caption submitted an application sought for destroy the particulars of the cheque in the system. Accordingly, the bank have did and gave endorsement as per Ex.D12. Though, the advocate for complainant has objected the said document issued by the bank at undisputed point of time. From which, it can gather that, the accused has initiated necessary action, to avoid misuse of questioned cheque.

55. Very particularly on 10.02.2014 prior to the complainant had initiate action on the Ex.P1 can be seen. During the course of cross of DW.1, he deposed that, the cheque was not dishonoured Judgment 63 C.C.No.16603/2015 for the reasons of insufficient fund, it was destroyed at his instruction and stated that, as on the said date, he was sufficient fund in his account. The relevant portion runs thus:

"¤¦-1 gÀ ZÉPÀÌ£ÀÄß ¨ÁåAQUÉ ¸À°è¹zÀ ¢£ÁAPÀzÀAzÀÄ CzÀgÀ°è PÁtô¹gÀÄªÀ ºÀt E¢ÝvÀÄ, DzÀgÉ D ºÀt ¥ÁªÀw ªÀiÁqÀzÀAvÉ £Á£ÉÃ ¨ÁåAQUÉ ¸ÀÆZÀ£É PÉÆnÖzÉÝ£ÀÄ. ¦AiÀiÁð¢UÉ gÀÆ.41 ®PÀëªÀ£ÀÄß £Á£ÀÄ PÉÆqÀ¨ÉÃPÁVzÀÄÝ, gÀÆ.30 ®PÀë ¥ÁªÀwUÁV ¤¦-1 gÀ ZÉPÀÌ£ÀÄß ¤ÃrzÀÄÝ, D ºÀtªÀ£ÀÆß ºÁUÀÆ G½zÀ ºÀt gÀÆ.11 ®PÀëªÀ£ÀÄß FªÀgÉUÀÆ £Á£ÀÄ ¦AiÀiÁð¢UÉ PÉÆnÖ®è JAzÀgÉ ¸ÀjAiÀÄ®è."

56. On going through the said testimony of DW.1, he clearly deposed that, there was sufficient funds in his account on the date of presentation of Ex.P1-cheque, but he himself got issued intimation to his banker not to honour on the same. The DW.1 has clearly denied the suggestion that, since Rs.41 lakhs has to be payable by the accused to the complainant for payment of portion of money, he gave cheque at Ex.P1 for Rs.30 lakhs is been denied. Even he denied the suggestion that, the accused is liable to pay Rs.11 lakhs, apart from questioned cheque amount, the same also denied by accused. The very evidence of DW.1 made clear that, he withstood his contention through out the case, thereby, rebutted the statutory presumption as well as the case brought by complainant.

Judgment 64 C.C.No.16603/2015

57. That apart, in order to attract the offence punishable under Section 138 of Negotiable Instruments Act, it requires to comply the mandatory provision enumerated under Section 138(a) to (c) of Negotiable Instruments Act. As pleaded by the complainant, the Ex.P4 notice was undelivered to the accused as per endorsement made on postal cover at Ex.P6. The Ex.P6 - postal cover, postal authority had made endorsement that, left return to sender dated:17.04.2015. The said endorsement made clear that, the competent authority has endorsed that, when gone with the postal cover to the address made mentioned therein, since the addressee left, it was ordered to be return to sender. During the course of cross of DW.1, he categorically admitted that, as on the date of issuance of legal notice at Ex.P4, he was reside therein. But no such notice is been served on him. The relevant portion of his evidence runs thus:

"¤¦-4 gÀ°è PÁtô¹zÀ «¼Á¸ÀzÀ°è, 2015 gÀ°è £Á£ÀÄ ªÁ¸À«zÉÝ£ÀÄ. D £ÉÆÃn¸ï £À£ÀUÉ eÁjAiÀiÁV®è. £ÁåAiÀiÁ®AiÀÄzÀ ¸ÀªÀÄ£ïì §AzÀ §½PÀ £Á£ÀÄ F ¥ÀæPÀgÀtzÀ°è ºÁdgÁVzÉÝÃ£É. ¤¦-4 gÀ £ÉÆÃn¸ï £À£ÀUÉ §A¢zÀÝgÀÆ PÀÆqÀ, CAZÉ ¥ÉÃzÉAiÉÆA¢UÉ ±Á«ÄÃ¯ÁV, GzÉÝÃ±À¥ÀÇªÀðPÀªÁV ¹éÃPÀj¹®è JAzÀgÉ ¸ÀjAiÀÄ®è. £ÉÆÃn¸ï £À£ÀUÉ vÀ®Ä¥ÀzÀ PÁgÀt GvÀÛj¹®è."

Judgment 65 C.C.No.16603/2015

58. The said evidence of DW.1, it made clear that, though accused was resides in the address made mentioned at Ex.P4, the said notice as per endorsement not served on him. But he stated that, on receipt of summons, he appeared before this court and denied the suggestion that, by colluding with the officials of post office wantonly not received legal notice. He categorically deposed that, since no notice was served on him, he not reply the same. The complainant has pleaded that, the notice was undelivered to the address of the accused by stating that, when the postman knocked the door to deliver the cover, the accused deliberately managed to return the same. In order to show that, the complainant has seen the postman knocked the door of accused in the address made mentioned in the Ex.P4 nothing has stated. If the accused wantonly avoided the service of legal notice, the complainant being adjacent residence could have been sent notice or deliver the notice by hand or speed post any other mode which convey the demand made by the complainant. But no such effort has been made. In order to attract the compliance of Section 138(c) of Negotiable Instruments Act, the notice issued so shall be delivered on the accused. As per Section 138(c) of Negotiable Instruments Act, it made clear that, after the receipt of notice within 15 days, the accused has to cause reply or pay Judgment 66 C.C.No.16603/2015 money covered under the cheque. Thereafter, only cause of action would arise.

59. In the case on hand in order to show that, the complainant has complied the Section 138(c) of Negotiable Instruments Act, the receipt of legal notice, he himself admitted, it was returned undelivered. It is him to establish that, why the notice to the neighbouring house, at that time, accused though resides, is not been served, it is him to explain, but not explained. Thereby, it made clear that, legal notice at Ex.P4 as issued by R.P.A.D at Ex.P6 was returned unserved stating left the addressee. Therefore, the complainant has not complied the Section 138(b) and (c) of Negotiable Instruments Act. Therefore, at the earliest point of time, expect reply from the accused does not arise.

60. As discussed earlier, the complainant has utterly failed to prove his case beyond the reasonable doubt. by furnishing, clear, convincing and linking evidence in order to convict him. On the other hand, the accused by way of cross-examining PW.1 as well as entered into witness box himself, coupled with examining DW.2 as well as produced the documentary evidence at Exs.D1 to D12, successfully established the probable defence of accused and rebutted the alleged borrowal of loan and got issuance of Judgment 67 C.C.No.16603/2015 accused for discharge of legal liability. Even, the accused rebutted the statutory presumption. Whatever the reverse burden casted upon the complainant by virtue of Section 139 of Negotiable Instruments Act, in view of acceptable probable defence set out by the accused, the complainant utterly failed to discharge the same. Therefore, it is the consider opinion of this court that, mere because of complainant possessed the questioned cheque of the accused, when he utterly failed to establish the hand over amount or loan amount to the accused, and for discharge of portion of liability, the accused got issued questioned cheque for Rs.30 lakhs is not been proved. Hence, the accused is entitled for benefit of doubt for acquittal.

61. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.

In the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:

Judgment 68 C.C.No.16603/2015 "Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".

62. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheque bares his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.

At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:

"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act -

Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to Judgment 69 C.C.No.16603/2015 rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".

63. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.41 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.

In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:

"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".

64. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, he is not liable to pay Ex.P1 cheque amount of Rs.30 lakhs and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence Judgment 70 C.C.No.16603/2015 that, the accused has borrowed the amount and he is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken his defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.30 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.

65. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Ex.P1 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.

Judgment 71 C.C.No.16603/2015

66. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.

67. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.30 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of Judgment 72 C.C.No.16603/2015 the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his case beyond all reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 to 3 are Negative.

68. Point No.4: In view of my findings on point Nos.1 to 3, I proceed to pass the following:

ORDER Acting under Section 255(1) of Cr.P.C.

the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.

The bail bond and cash security/surety bond of the accused stands cancelled.

(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 9th day of July - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.

 Judgment                         73                 C.C.No.16603/2015



                           ANNEXURE

List of Witnesses examined on behalf of Complainant:

PW-1 : B.T.Swamy List of Exhibits marked on behalf of Complainant:

Ex.P1                  :   Original Cheque
Ex.P1(a)               :   Signature of accused
Exs.P2 & P3            :   Bank endorsements
Ex.P4                  :   Office copy of legal notice
Ex.P5                  :   Postal receipt
Ex.P6                  :   Unserved R.P.A.D cover
Ex.P6(a)               :   Legal notice at Ex.P6
Exs.P7 & P8            :   Statement of accounts

List of Witnesses examined on behalf of the defence:

DW.1                   :   M.Kumaraswamy
DW.2                   :   Pramodh.T.V

List of Exhibits marked on behalf of defence:

Ex.D1                  :   Loan clearance certificate
Ex.D2                  :   CC of absolute sale deed
Ex.D3                  :   Water connection card
Ex.D4                  :   Receipt
Ex.D5                  :   Special notification letter
Ex.D6                  :   Electrical installation approval letter
Ex.D7                  :   Plan
Ex.D8                  :   Statement of account
Ex.D9                  :   Memorandum of Understanding
Ex.D10                 :   CC of absolute sale deed
Ex.D11                 :   Sketch
Ex.D12                 :   Letter dtd:22.10.2018




                                  XXIII Addl. Chief Metropolitan
                                       Magistrate, Bengaluru.
 Judgment                74                  C.C.No.16603/2015



09.07.2020.
Comp -
Accd -

  For Judgment
                       Case called out.

                       Complainant and accused are absent.
                 No    representation       from    both    side
                 advocates, despite, web-host the case
                 proceedings and intimate the date of
                 pronouncement of judgment. Hence, as per

                 Section 353(6) of Cr.P.C. the following
                 judgment is pronounced in the open court
                 vide separate order.


                                    *****

                                    ORDER

                       Acting under Section 255(1) of Cr.P.C.
                 the accused is acquitted for the offence
                 punishable under Section 138 of Negotiable
                 Instruments Act.

                       The bail bond and cash security/surety
                 bond of the accused stands cancelled.




                               XXIII Addl. Chief Metropolitan
                                   Magistrate, Bengaluru.

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B.T.Swamy vs M.Kumara Swamy on 9 July, 2020