Bangalore District Court
Sri.B.M.Uthappa vs Sri.N.Venkatesh on 14 October, 2020
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BA (Law), LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 14TH DAY OF OCTOBER, 2020.
C.C.No.54998/2016
COMPLAINANT : Sri.B.M.Uthappa
S/o.Late.Sri.B.P.Monappa,
Aged about 55 years
No.6, Cauvery Nilaya,
Next to More Shop,
R.M.Nagar Main Road
Bangalore - 560 016
.Vs.
ACCUSED : Sri.N.Venkatesh
S/o.Late.Sri.Narayanappa
Aged about 45 years
No.253, 3rd Main Road, 4th Cross
Near Doddamma Temple
Bhovi colony, R.M.Nagar
Bangalore - 560 016
****
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2C.C.No.54998/2016
2. The brief facts of the case are as follows: The complainant has specifically alleged that, he and accused are well known to each other from several years, due to that cordiality and friendship, the accused allegedly approached him for a hand loan of Rs.75,00,000/ for meeting his personal, business and family commitments. Due to that cordiality in between him and the accused, he agreed to give a hand loan to the accused. Accordingly, he allegedly advanced Rs.35,00,000/ on 20.09.2015 and Rs.40,00,000/ on 22.11.2015, in all totally he advanced Rs.75,00,000/ by way of cash as a hand loan to the accused. On receipt of it, the accused allegedly agreed to repay sum of Rs.75,00,000/ to him within 6 months. On this liability, the accused had allegedly issued 3 post dated cheques bearing No.547875 for Rs.15,00,000/ dtd:18.01.2016, bearing No.547874 for Rs.30,00,000/ dtd:18.02.2016 and cheque bearing No.547873 for Rs.30,00,000/ dtd:18.03.2016 respectively drawn on UCO Bank, Ramamurthy Nagar Branch, Bengaluru in his favour with a request to present it. Accordingly, on the alleged promise made by the accused, he 3 C.C.No.54998/2016 presented the 3rd cheque dtd:18.03.2016 for Rs.30,00,000/ into his bank account i.e., UCO Bank, Indiranagar Branch, Bengaluru but, it was unpaid by its banker due to "Funds Insufficient". In this regard, his banker issued an endorsement dtd:21.03.2016 to him on 24.03.2016.
Further, he alleged that he informed the same to the accused and demanded for payment of money, but, he postponed the same for the reason best known to the accused. Finally, he constrained to issue a legal notice dtd:01.04.2016 to the accused which was "unclaimed" by the accused and postal intimation was returned to him on 18.04.2016. Despite the alleged notice, the accused neither paid the cheque amount nor replied to his notice. Accordingly, within stipulated time he constrained to file this complaint to punish the accused in accordance with law as the accused allegedly issued the cheque for legally recoverable debt despite knowing the fact that, there was no sufficient amount in his account.
4C.C.No.54998/2016
3. Based on the complaint, the sworn statement affidavit, the documents placed by the complainant along with the complaint the court took cognizance of an offense punishable under Sec.138 of N.I.Act and ordered to register a criminal case against the accused for the offense punishable under Sec.138 of N.I.Act.
4. In pursuance of summons, the accused did not appear before the court, later, through execution of warrant, the accused was present before the court and he was released on bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
5. To prove the case, the complainant got examined himself as P.W.1 and got marked documents at Ex.P.1 to P.10.
6. On closure of complainant side evidence, the accused was examined under Sec.313(1)(b) of Cr.P.C., he denied the incriminating materials on record.
7. The accused got examined himself as D.W.1 and taken specific plea that he had financial transaction 5 C.C.No.54998/2016 with the complainant, he availed only Rs.15,00,000/ from the complainant. While availing the same, he had issued 8 blank signed cheques, 8 blank signed stamp papers, one signed blank paper, original document of his house. Further, in discharge of alleged loan during pendacy of the trial through RTGS he paid Rs.15,00,000/ to the complainant as per Panchayath allegedly held in between him and the complainant in presence of D.W.2, D.W.3. On these grounds he specifically claims that despite the payment of Rs.15,00,000/ to the complainant, the complainant has not withdrawn the cases i.e., present one and the connected cases in C.C.No.53201/2016 & C.C.No.53202/2016. Further, he specifically alleged that, the complainant has misused the cheques issued by him and filed 2 other false cases i.e., C.C.No.53201/2016 for Rs.15,00,000/ & C.C.No.53202/2016 for Rs.30,00,000/ and also through one Syed Tahseen, Arul Murugan, K.T.Arun, which was allegedly issued by him in favour of the complainant as a security for the loan of Rs.15,00,000/. On this alleged misuse he has already initiated legal action against the 6 C.C.No.54998/2016 complainant, K.T.Arun, Syed Tahseen, Arul Murugan. Accordingly, he prays to acquit him and placed reliance on Ex.D.1 to 10 and also examined 2 witnesses namely Ravikumar C. as D.W.2 and Chandru as D.W.3.
8. The complainant counsel vehemently argued and also submitted his written argument that, the accused himself admitted that, there was transaction in between the complainant and the accused. The signature and issuance of cheque also admitted by the accused. Therefore, as per Sec.139, the presumption has to be drawn in favour of the complainant and defense raised by the accused about payment during the pendancy of the case is with respect to all 3 cases and defense of the accused that, he had availed only Rs.15,00,000/ from the complainant cannot be acceptable because, Ex.P.9 Certified copy of AOD has been admitted by the accused as per contents of Ex.P.9. The accused acknowledged the borrowal of Rs.75,00,000/ and for discharge of the same liability, he issued 3 cheques i.e., Ex.P.1 cheque, Cheques in connected case in 7 C.C.No.54998/2016 C.C.No.53201/2016 & C.C.No.53202/2016. Further, the accused has not questioned the financial capacity. Even then the complainant has produced the Ex.P.8 to show his financial capacity i.e., Certified copy of IT Returns to show that he had cash of Rs.75,00,000/ at his home and the evidence adduced by the accused is not reliable to prove the defence that it was issued as a security for only Rs.15,00,000/ but not Rs.75,00,000/. Accordingly, he prays to convict the accused and also he placed reliance on judgments reported in; 2002 Crl.L.J. 4392, 1996 Crl.L.J. 3099.
9. On the other hand, the counsel for the accused vehemently argued that the transaction in between the complainant for Rs.15,00,000/ is not disputed by the accused but the accused specifically disputed that alleged borrowal of Rs.75,00,000/ from the complainant. The accused disputed the financial capacity of the complainant. Despite, the accused specifically questioned the complainant to produce the document to prove that he had sufficient cash in his account to lent the alleged loan, Ex.P.9 is a 8 C.C.No.54998/2016 created document has not been proved by examining the the witnesses of the said document i.e., Certified copy of AOD i.e., Ex.P.9 one Karishma Uthappa is none other than the daughter of the complainant which was filled and created by the complainant to suite his allegation. Further, the accused produced the copy of the order sheet i.e., cases filed by Syed Tahseen, Arul Murugan, K.T.Arun as per the instruction of the complainant. Further, during the pendancy of the trial, settlement talk was held, as per Panchayath. The dispute was settled in between the complainant and him for Rs.15,00,000/. Accordingly, the accused paid Rs.15,00,000/ through RTGS on 19.08.2017 same is admitted by the complainant, despite of it, the complainant has not withdrawn the cases as per the terms of Panchayath held before D.W.2 and 3. The alleged fact of Panchayath held in between the complainant and the accused has been categorically stated by the D.W.2 and 3. Considering all the materials brought by the accused on record, the accused has probablised his defense that the case of the complainant is false and the transaction was only of 9 C.C.No.54998/2016 Rs.15,00,000/ held in between the accused and the complainant but not for Rs.75,00,000/ and issuance of these cheques for Rs.15,00,000/. Accordingly, the counsel for the accused argued that he has sufficiently rebutted and complainant has not produced any material to over come his defense placed on record. Hence, he prays to acquit him and also he relied upon the decisions reported in; ILR 2008 KAR 4629, AIR 2015 SCW 64, AIR 2019 SC 1983.
10. Perused the materials on record with the arguments of both the sides the following point arises for my determination;
"Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"
11. On that basis my finding on the above point is in the "Affirmative" for the following;
REASONS
12. The specific case of the complainant is that for discharge of Rs.75,00,000/ loan liability, allegedly 10 C.C.No.54998/2016 the accused issued 3 cheques bearing No.547875 for Rs.15,00,000/ dtd:18.01.2016, No.547874 for Rs.30,00,000/ dtd:18.02.2016, No.547873 for Rs.30,00,000/ dtd:18.03.2016.
13. The present case is with respect to cheque bearing No.547873 for Rs.30,00,000/ dtd:18.03.2016. On its presentation as promised by the accused, it was bounced for "Funds Insufficient"
in the account of the accused. Accordingly, he claims to punish the accused as the accused deceived him. Inter alia, the accused admitted the financial transaction held in between him and the complainant. However, he specifically disputed that, he availed only Rs.15,00,000/ but not Rs.75,00,000/ as claimed by the complainant and specifically claimed that he had issued 8 blank signed cheques, 8 signed blank stamp papers, one signed stamp paper, original documents belongs to his house, same was misused by the complainant and filed false case against him i.e., the instant case and 2 other criminal cases by the complainant in C.C.No.53201/2016, C.C.No.53202/2016 and also 11 C.C.No.54998/2016 the complainant filed false cases against him through one Syed Tahseen, Arul Murugan, Arun.
14. That apart, he also specifically contended, during the pendancy of the case a settlement has been held in between him and the complainant. As per settlement, he paid Rs.15,00,000/ to the complainant through RTGS, despite payment of full amount of Rs.15,00,000/, the complainant has not withdrawn the instant case and other cases. Accordingly, he claims to dismiss the complaint. Further, he evasively questioned the financial capacity of the complainant. However, he unequivocally admitted the issuance of cheque and signature thereon is belongs to him and further he denied the contents of the cheque and documents supported by the complainant are created one.
15. So, considering the rival contentions, it is clear that the accused has not disputed the compliance of Sec.138(a) to (c) that, the issuance of legal notice within a stipulated time, validity of the cheque, filing of this private complaint within time. Therefore, it is 12 C.C.No.54998/2016 not in dispute that the compliance of Sec.138(a) to (c) of N.I.Act.
16. Further, it is significant to note the admitted facts in between the parties that, the existence of financial transaction in between the complainant and the accused is not in dispute, issuance of cheque Ex.P.1 and signature found thereon is of the accused, which are not disputed by the accused. However, the accused specifically contended that the transaction with the complainant is only for Rs.15,00,000/ but not Rs.75,00,000/ and he evasively questioned the financial capacity of the complainant. So, it is well settled law that, initial burden is on the complainant to prove the alleged transaction and issuance of Cheque for legally recoverable debt.
17. In order to prove his case, the complainant himself got examined as P.W.1 and placed reliance on Ex.P.1 cheque, Ex.P.2 bank endorsement, Ex.P.3 legal notice. The accused during the cross examination categorically admitted the address shown in the cause title as well as the summons, 13 C.C.No.54998/2016 legal notice in Ex.P.3 is one and the same and he was / is residing therein and it is the correct address of his residence. So, as per Ex.P.5 though it is unclaimed by the accused but it is to be presumed that the legal notice on the accused was sufficiently served, even though this fact has not been disputed by the accused but it is necessary to note or significant to note that he has not replied to the legal notice and has not set up his defence through reply notice. Further, it is significant to note that the accused even after service of notice issued by this court did not turn up to the court, he was produced before the court under execution of warrant.
18. The complainant/P.W.1 has reiterated the complaint averments in his examination in chief affidavit, in order to prove his allegation, he placed reliance on Ex.P.1 cheque, Ex.P.9 Certified copy of acknowledgment of debt, Ex.P.7 Certified copy of sale deed of the accused, Ex.P.8 Certified copy of I.T.Returns for the year 201617. In addition to the complaint averments the P.W.1 has stated on oath that on 31.07.2016 a settlement talk was held in 14 C.C.No.54998/2016 between him and the accused in presence of well wishers and friends, as per settlement the accused requested 6 months time to pay the sum of Rs.75,00,000/ and the accused gave him the original document i.e., sale deed (Ex.P.7 in C.C.No.53201/2016) pertaining to residential house of the accused as a security i.e., Ex.P.7 and despite agreed for payment within 6 months the accused failed to pay the same.
19. In corroboration of the claim of the complainant with regard to existence of financial transaction with the accused and issuance of Cheque in question to the complainant by the accused, the accused himself categorically admitted in the chief examination as; "I have borrowed loan of Rs.15,00,000/ from the complainant in the month of September 2015 while receiving the said amount as a loan I have issued 8 signed stamp papers and 1 signed stamp paper to the complainant". So, the accused unequivocally admitted that, he issued the Ex.P.1 Cheque in favour of the complainant, signature found 15 C.C.No.54998/2016 thereon is of him and he also admitted that, he borrowed a loan from the complainant but he disputes the borrowal of claimed amount i.e., Rs.75,00,000/ and claimed that he borrowed only Rs.15,00,000/ from the complainant. So, the existence of financial transaction in between the complainant and the accused is not in dispute, issuance of cheque and signature found on the cheque are of the accused which are not been disputed. Therefore, it is well settled law that, once the issuance of the cheque, signature on the cheque and existence of financial transaction is admitted, it is mandatory on the court to draw the presumption that the Cheque has been issued for consideration or legally recoverable debt in favour of the holder of the cheque. Therefore, as per Sec.139, the presumption shall be drawn in favour of the complainant. At this juncture, the court is relying upon the decision of the Apex Court i.e., Rangappa .Vs. Mohan. Wherein, the Apex Court has held that;
"Once the cheque relates to the account of the accused and he accept and admit the 16 C.C.No.54998/2016 signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I.Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I.Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
20. In view of the above dictum, the complainant has proved that the cheque and signature found on the cheque is of the accused. So, the onus is on the accused to rebut the presumption lies in favour of complainant. The standard of proof in order to rebut the presumption is preponderance of probabilities same is ruled by the Hon'ble Apex Court in the above referred decision that; "An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge him burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain 17 C.C.No.54998/2016 silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is difference." So, considering the above dictum, to discharge the onus, to rebut the presumption, the accused need not necessary to stepped into the witness box, he may brought the material on record through the crossexamination to disprove that there is not existence of legally recoverable debt.
21. In order to rebut, the accused has cross examined the P.W.1 made several suggestions firstly, the complainant is doing money lending business, secondly, financial incapacity or inability to lent huge sum, however, in contrary he admitted that he had a transaction with complainant. Further, he got examined himself as D.W.1 and two witnesses as D.W.2 and 3.
22. On careful examination of P.W.1 evidence, it transpires that the accused has admitted that he had a financial transaction with the complainant in the month of September 2015 and he borrowed only 18 C.C.No.54998/2016 Rs.15,00,000/ from the complainant as a security for the said loan of Rs.15,00,000/ he got issued 8 blank signed cheque, 8 blank signed stamp papers, one signed stamp paper and original document belongs to his house and also stated in the month of August 2017 i.e., during the pendancy of the case, i.e., subsequent to closure of evidence of P.W.1 he allegedly paid Rs.15,00,000/ to the complainant, for that, he relied upon Ex.D.1 Notarized copy of bank passbook and alleged that the complainant has misused the blank signed cheques issued by him to the complainant and filed private complaints through one Syed Tahseen, Arul Murugan, K.T. Arun against him, for that, he placed reliance on Ex.D.2 to D.5. Further, he alleged Ex.P.9 Certified copy of acknowledgment of debt relied by the complainant is created document. However, he admitted signature found on Ex.P.9 is belongs to him but he alleged the contents have been filledup as per the whims and fancy of the complainant and specifically stated, he borrowed Rs.15,00,000/ only from the complainant but not Rs.75,00,000/. The suggestions of the accused has been denied by the complainant and 19 C.C.No.54998/2016 thoroughly cross examined the D.W.1 wherein he admits the acquaintance with the complainant. Further, he admits that he has not obtained any document or an acknowledgment to show that he had issued 8 signed blank Cheques, 8 signed blank stamp papers, one signed paper to the complainant for alleged transaction of Rs.15,00,000/ only. So, it is clear that to substantiate his specific defence that he had borrowed only Rs.15,00,000/ from the complainant and issued 8 signed blank Cheques, 8 signed blank stamp papers, one signed paper to the complainant nothing has brought on record to believe his claim. In the absence of specific documents mere oral suggestion does not prove his contention. Therefore, the said contention of the accused cannot be acceptable without proof to that effect.
23. Further, it is also brought on record that till August 2017 i.e., during pendancy of the case no payment were made towards the alleged transaction or the transaction claimed by the accused. Therefore, as held supra the complainant has proved the transaction with the complainant and issuance of the 20 C.C.No.54998/2016 Cheque but the accused specifically denied it was issued only for Rs.15,00,000/ but to substantiate the transaction was only for Rs.15,00,000/ the accused has not produced any cogent evidence.
24. Further, so far as the specific defence of the accused that the complainant is money lender is concerned, he suggested the P.W.1 that against Damodar and Velumurugan Naidu the complainant had filed similar cases, one is for Rs.20,00,000/ and another for Rs.10,00,000/ by suggesting that the complainant has advanced nearly Rs.30,00,000/ to Damodar and Velumurugan Naidu. On this suggestion, it is very clear that even though the complainant admitted the filing of criminal cases against the Damodar and Velumurugan Naidu, it is not the case of the accused that for the purpose of business i.e., with an intention to earn money by advancing for a commercial purpose i.e., to get interest as a business, the complainant has advanced loans to one Damodar and Velumurugan Naidu. Therefore, mere admission of filing of cases against Damodar and Velumurugan Naidu itself cannot be a 21 C.C.No.54998/2016 ground to consider that the complainant is doing money lending business, because, the complainant has specifically stated Damodar and Velumurugan Naidu are his friends, due to that cordiality in between them as per their friendship he advanced the amount in the year 2013 which cannot be termed that the complainant is doing the money lending business as claimed by the accused.
25. So far as, financial capacity is concerned, the accused evasively suggested that complainant has no capacity to lent amount of Rs.75,00,000/. The same is categorically denied by the complainant. The burden is on the complainant to prove his financial capacity and had possession of hard cash of Rs.75,00,000/ with him, for proof of it, he placed reliance on Ex.P.8, the Certified copy of I.T. Return, the accused vehemently cross examined on this document and suggested that except the 1st page of the document other pages are created one, but, same is denied by the P.W.1. On careful scrutiny of the document it discloses that, in the balance sheet it is clearly disclosed that, he received Rs.35,00,000/ 22 C.C.No.54998/2016 from the agricultural land bearing Sy.No.59/1 & Rs.40,00,000/ from Sy.No.59/2 both are situated at Lakkondanahalli and also the complainant has showed the advancement of Rs.75,00,000/ as a loan to the present accused which clearly proves that, the advancement of Rs.75,00,000/ to the accused and the cash held by the complainant that from the source of sale of his agricultural lands in Sy.No.59/1 & Sy.No.59/2 situated at Lakkondahalli, which clearly stands proved that the complainant had sufficient amount i.e., more than Rs.75,00,000/ cash held by him, even though, the learned counsel for the accused vehemently argued that to substantiate the sale of these properties the complainant has not produced sale deeds or agreement of sales is not fatal to the claim of the complainant that with regard to financial ability, because, in the balance sheet of Ex.P.8 has clearly disclosed the complainant received Rs.75,00,000/ towards sale of the agricultural lands. Even during the course of crossexamination the accused has not denied the ownership of the complainant on the above lands and the sale transactions, further, the 23 C.C.No.54998/2016 Ex.P.8 discloses the complainant had agricultural lands / coffee estates at Kunjila, Yarakpadi Village of Madikere which are all having commercial crops discloses yielding income, that apart, the D.W.1 has not stated anything in his evidence about financial inability of the complainant. So, in the absence of specific denial, merely based on evasive denial about the financial capacity cannot probablise the defense since the complainant has produced document i.e, Ex.P.8 - Certified copy of IT Return for the year 20162017 which clearly demonstrates he had sufficient source of income and had financial potentiality to lent the sum of Rs.75,00,000/ and he further proved that, he advanced Rs.75,00,000/ to the accused.
26. So far as, the genuineness of the Ex.P.8 - Certified copy of IT Return, the accused vehemently questioned the complainant that, only the 1st page of Ex.P.8 is a original genuine document and other pages annexed to it are not a genuine document but to substantiate his allegation or contention, nothing has brought on record to show that Ex.P.8 Certified 24 C.C.No.54998/2016 copy of I.T.Returns of the complainant is containing false information. In the absence of contrary to the Ex.P.8 the Certified copy of I.T. Returns submitted by the complainant cannot be doubted. Further, in contrary to is own defence, the accused suggested that, the complainant has advanced loans more than the value of Rs.30,00,000/ to one Damodar and Velumurugan Naidu which itself clearly stands proved that the complainant had enough financial capacity to lent the amount of Rs.75,00,000/. Therefore, the contention of the accused that the complainant had no financial capacity to lent huge sum of Rs.75,00,000/ cannot be acceptable. Accordingly, the complainant has proved the source of income to lent the huge amount as a loan to the accused.
27. Further, the accused in order to substantiate his defence about transaction is only for Rs.15,00,000/ and the alleged settlement held in the month of August 2017 is concerned, he got examined D.W.2 and 3 Ravikumar and Chandru. The D.W.2 and 3 both have stated in their examination in chief of 25 C.C.No.54998/2016 affidavit itself that they heard from the mouth of the complainant that the complainant had received 8 signed blank Cheques, 8 signed blank stamp papers, one blank signed paper, one registered sale deed as a security from the accused for Rs.15,00,000/. The very statement of these witnesses clearly stands proved that they were not the eye witnesses to the alleged transaction for Rs.15,00,000/ availed by the accused from the complainant, they are, an hearsay witnesses. Therefore, their evidence with respect to loan borrowed by the accused only for Rs.15,00,000/ but not for Rs.75,00,000/ cannot be acceptable.
28. So far as settlement during pendancy is concerned, the D.W.2 and 3 have stated that in presence of them a Panchayath was held in between the accused and the complainant as per the Panchayath the dispute in between the complainant and the accused was settled for Rs.15,00,000/ same was agreed by the complainant accordingly, the accused paid Rs.15,00,000/ through RTGS on 19.08.2017 to the account of the complainant and 26 C.C.No.54998/2016 also agreed to withdraw all the cases filed by the complainant against the accused including the instant case but later, the complainant changed his stand and not withdrawn the cases is concerned, the complainant vehemently cross examined both these witnesses, wherein, the D.W.2 and 3 have categorically admitted that, no document was prepared and produced to substantiate their evidence to show that there held Panchayath or conciliation and in their presence the complainant has agreed about the receipt of 8 blank signed Cheques, 8 blank signed stamp papers, one signed blank paper, original document. Therefore, their evidence without any documentary proof cannot be acceptable, even if their evidence is taken in to consideration, the alleged settlement talk was held during pendancy of the case and amount of Rs.15,00,000/ was paid through RTGS to the account of the complainant, during the pendancy of the case but not prior to initiating the instant case against the accused. Therefore, it is well settled law that, in a decision reported in; AIR 2001 SC 518 in between Rajneesh Agarwal .Vs. Amith J. Balla held that;
27C.C.No.54998/2016 "Once the offence of dishonoure of Cheque is committed any payment made subsequent thereto will not absolve the accused drawer of the liability of criminal offence".
29. So, considering the above dictum, mere payment of Cheque amount or part of the Cheque amount does not absolves the criminal liability. Therefore, the evidence of D.W.2 and 3 are not helpful to the defence of the accused that the transaction with the complainant is only with respect to Rs.15,00,000/ but not for Rs.75,00,000/. So, considering the entire materials on record, the accused though he examined himself as D.W.1 and placed some documents and examined 2 witnesses on his behalf and also crossexamined the P.W.1 has failed to brought out that the complainant is a money lender, had no financial capacity and the transaction is only for Rs.15,00,000/ but not Rs.75,00,000/ with cogent and convincing evidence.
30. So far as decisions relied by accused is concerned, it is true that as per the decisions i.e., ILR 28 C.C.No.54998/2016 2008 Kar 4629, AIR 2019 SC 1983 that in a case where a huge sum is involved the duty casted upon the complainant to prove the following;
(i) Source of income so as to enable to him advance a huge loan,
(ii) Non production of book of account,
(iii)Absence of proof to show that the complainant got so much money from the bank,
(iv)Absence of any written document evidencing lending of money
(v)Absence of any witness to the transaction.
31. In the absence of above factors or evidence to that effect, an inference can be drawn that there is no legally enforceable debt but considering the materials on record as held supra in order to show the source of income and his ability to lent amount the complainant though he failed to produce the sale deed or agreement of sale to show that he had received Rs.75,00,000/ from the agricultural lands bearing Sy.No.59/1 & 59/2 of Lakkondanahalli Village but he produced the Certified copy of IT 29 C.C.No.54998/2016 Return for the year 201617 as Ex.P.8 which evidencing the fact of receipt of Rs.75,00,000/ from the agricultural lands and advancement of loan to the accused. That apart, interestingly, the accused does not denied the sale transactions, receipt of Rs.75,00,000/ or the ownership of these properties and cash held by the complainant at the time of advancing the loan i.e., in the months of September & November of 2015. Further, the accused neither in the crossexamination of P.W.1 nor in the defense evidence does not disputed specifically the financial capacity of the complainant. Therefore, the arguments with respect to financial inability of the complainant cannot be acceptable in the absence of proof to that effect.
32. Further, the complainant in order to prove the liability of the accused has produced Ex.P.9 i.e., a contemporaneous documents i.e., Certified copy of acknowledgment of debt wherein it discloses the receipt of Rs.75,00,000/ by the accused and the issuance of 3 post dated Cheques i.e., Ex.P.1 Cheque in question in the instant case and the Cheques 30 C.C.No.54998/2016 questioned in the connected cases i.e., C.C.No.53201/2016 & C.C.No.53202/2016 which is dated 22.11.2015. Although the accused questioned the document that it is a created one however he admits the signature found on Ex.P.9 is that of him but further he denies the contents of the document. It is well settled law that mere marking of the document does not dispense from the proof of contents of the document. However, AOD is not a compulsory registrable or attestable document. Therefore, since the accused himself admitted the signature found on Ex.P.9 is belongs to him and issuance of the stamp paper containing his signature to the complainant the contents of the Ex.P.9 cannot be doubted because, the accused is not a layman he contested to the Lokasabha Election from the Kolar Constituency had a knowledge about the consequences of issuance of Cheque with the signature and issuance of a stamp paper containing the signature. Therefore, even though the witnesses of Ex.P.9 are not been examined by the complainant in view of the admission of the accused that issuance of stamp paper i.e., Ex.P.9, containing signature of 31 C.C.No.54998/2016 the accused can easily inferred that the accused himself has issued with completed document to the complainant by acknowledging his debt by referring the Cheques in question i.e., Ex.P.1 and Cheques referred in connected cases. Even the accused has not proved that how his Cheques i.e., Ex.P.1 and other Cheques referred in connected cases were gone into the hands of the complainant and even in his evidence he categorically admitted while borrowing the loan in the month of September 2015 he issued signed blank papers. To substantiate his defence, he has not stated who were all present at the time of issuance , whether the documents were issued in a blanket form or it contains the recitals for that absolutely there is no evidence. Therefore, in the absence of proof to that effect the issuance of Ex.P.9 with the completed document has to be inferred in favour of the complainant that the accused has confirmed his dues with a promise to pay it within 6 months. Therefore, as per Sec.25(3) of Contract Act an AOD must be in writing, it must be unambgious, clear terms, must be signed by the person who acknowledges the dues so, as held supra signature 32 C.C.No.54998/2016 found on Ex.P.9 is admitted by the accused that it is belongs to him. The Cheques referred in Ex.P.9 are belongs to him. According to the complainant, a completed document of AOD was issued to him by the accused only and it is not an attestable document nor compulsory registrable document. As held supra it is only a promise and it is evidencing the fact of confirmity of dues made by the accused. Therefore, the Ex.P.9 can be relied upon in the absence of contrary to that document. Hence, the complainant to substantiate the existence of legally recoverable debt has also proved by producing the Ex.P.9 as a contemporaneous document to the Ex.P.1 Cheque that a written document evidencing the lending of money to the accused.
33. So far as the alleged cases filed against the accused by the complainant through others i.e., K.T.Arun, Arul Murugan, Syed Tahsen in C.C.No.53369/2015, C.C.No.56790/2017 i.e., Ex.D.2 to 8 are concerned although the accused has produced Ex.D.2 Notarized copy of legal notices caused by one K.T.Arun, Ex.D.3 caused by Arul 33 C.C.No.54998/2016 Murugan, Copy of the complaint filed by one Syed Tahsen against him which IPSO Facto does not prove the nexus in between the complainant and Arul Murugan, K.T.Arun, Syed Tahsen that the complainant through them have been initiated the criminal proceedings against the accused. That apart, the document Ex.D.5 produced by the accused himself discloses that in C.C.No.53669/2016 on 05.09.2018 the accused and Syed Tahsen have compromised the matter and got dismissal of the complaint based on the compromise held in between him and said Sayed Tahsen which is contrary to his own allegation. So, unless he proves that there is a nexus in between the complainant and the above persons and issuance of the Cheques in question referred in legal notices caused by Arul Murugan, K.T.Arun to the complainant with a cogent evidence, the claim of accused about filing of criminal cases by the complainant through the above named person cannot be acceptable, since, the complainant vehemently denied the filing of these cases by above said persons through him. Therefore, the documents relied by the accused are not helpful to prove his 34 C.C.No.54998/2016 specific defence that along with the Cheques i.e., Ex.P.1 and Cheques in connected cases he also issued 5 Cheques to the complainant for Rs.15,00,000/. So, he failed to probablise the above specific defense.
34. So far as initiation of legal proceedings against the complainant is concerned, admittedly the accused till completion of his examination under Sec.313 of Cr.P.C. not taken any legal action to substantiate his allegation of misuse of Cheques, stamp papers by the complainant and K.T.Arul, Aruna, Syed Tahsen i.e., neither in the crossexamination of P.W.1 nor in the 313 Statement he specifically explained or stated that he initiated legal proceedings against the complainant. Therefore, the Ex.D.9 the complaint lodged by the accused against the complainant which apparently disclosed on 04.05.2019 only after specific question put to the accused by the complainant counsel about the legal action, the accused has filed the private complaint before the Hon'ble 6 th ACMM, Court, Bengaluru. Even mere filing of private complaint does not IPSO Facto prove that the guilt of 35 C.C.No.54998/2016 the complainant for alleged misuse of Cheques. So, the Ex.D.9 and 10 are not helpful to the defense of the accused. Since, the standard of proof for the defense is preponderance of probability that must be capable to accept by the court.
35. Considering the entire materials on record, except the suggestion and the oral say there is no evidence brought on record by the accused to probablise his defence that he issued Ex.P.1 Cheque in favour of complainant only for Rs.15,00,000/ but not for Rs.75,00,000/, financial incapacity of a complainant, complainant is a money lender. So on the failure of the accused to prove his defense as held supra, once the issuance of Cheque, signature on the Cheque, and issuance of Cheque for transaction are admitted by the accused as per Sec.118A of N.I.Act the presumption shall be drawn in favour of the complainant that the Cheque was issued for consideration or to discharge legally enforceable debt. Further, the complainant has sufficiently proved the d d 36 C.C.No.54998/2016 financial capability by producing the IT Return, contemporaneous document Ex.P.8 to prove the acknowledgment of liability of the accused in addition to the presumption lies in his favour, only on failure to prove the financial capacity, additional document for lending huge sum and contrary evidence to that effect, the existence of legally recoverable debt can be doubted. So, in the absence of contrary the case of the complainant has to be accepted. Further, the defense of the accused cannot be acceptable without proof and even the defence is taken into consideration, the defence of the accused cannot be acceptable because no prudent man would issue 8 signed blank Cheques, 8 blank signed stamp paper, 1 signed blank stamp paper for only Rs.15,00,000/ as the accused is not a layman, he contested to the Loksabha Election from the constituency of Kolar had every knowledge about consequences of issuances of Cheque, stamp paper containing his signatures in a blanket form. Therefore, he failed to probablise his defence. Accordingly, the presumption raised in faovur of the complainant under Sec.139 of N.I.Act has not been rebutted by the accused. Hence, the 37 C.C.No.54998/2016 complainant has proved the issuance of Cheque Ex.P.1 for Rs.30,00,000/ by the accused for discharging of loan of Rs.75,00,000/. Accordingly, the accused found guilty of an offence punishable under Sec.138 of N.I.Act.
36. So far as compensation and sentence is concerned, the complainant has admitted that on 19.08.2017 he received Rs.15,00,000/ from the account of the accused. However, he specifically stated that he received the same with respect to all 3 cases pending against the accused including the instant case. However, despite the payment of Rs.15,00,000/ he has not specified how much amount required to be adjusted to the Cheque amount but he specifically stated the amount received by him with respect to all 3 cases. On the contrary the accused failed to prove the transaction with the complainant is only of Rs.15,00,000/ but not Rs.75,00,000/. So, on failure to prove the transaction is only for Rs.15,00,000/ it is to be considered that Rs.5,00,000/ each in all 3 cases is to be adjusted which will meet the ends of justice.
38C.C.No.54998/2016 Accordingly, considering the entire materials on record, which transpires that the intention of the complainant is only to see the recovery of loan amount but not for an imprisonment. Therefore, if sentence of fine is imposed on the accused that would meet the ends of justice. Accordingly, by adjusting Rs.5,00,000/ as it is admitted by the complainant that he has received from the accused through RTGS it does not absolves the criminal liability. However, it may have little effect on the award of compensation or sentence. So, considering the facts and circumstances of the case, if the accused is sentenced to pay a fine of Rs.27,05,000/ that would meet the ends of justice. Accordingly, the accused is sentenced to pay a fine of Rs.27,05,000/. Out of the fine amount received, the complainant is entitled to Rs.27,00,000/ as a compensation under Sec.357(3) of Cr.P.C. Remaining fine of Rs.5,000/ is to be appropriated to the state. In case of default to pay fine amount, the accused shall undergo simple imprisonment for a period of 6 months. Accordingly I answer the above point in "Affirmative". In the result, following;
39
C.C.No.54998/2016
ORDER
Acting under section 255(2) of
Criminal Procedure Code, the accused is convicted of the offence punishable U/s 138 of Negotiable Instrument Act, The accused is sentenced to pay a fine of Rs.27,05,000/ (Rupees Twenty Seven Lakh Five Thousand) in default, he shall undergo simple imprisonment for a period of six months.
Out of the fine amount received, Rs.5,000/ is to be appropriated to the State and by way of compensation as per the provision U/s 357(1) of Cr.P.C. the complainant is entitled for Rs.27,00,000/.
The bail bonds and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court, on this the 14th day of October, 2020) (M.Vijay), 40 C.C.No.54998/2016 XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri.B.M.Uthappa
2. Documents marked on behalf of complainant:
Ex.P.1 : Original cheque bearing no. 547873 dt:
18.3.2016 of uco Bank for Rs.30,00,000/.
Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Bank return memo.
Ex.P.3 : Office copy of the legal notice dated
01.04.2016
Ex.P.4 : 2 Postal receipts
Ex.P.5 : Unserved postal cover opened in the open
court and notice therein marked
Ex.P.5(a) : Unserved postal cover
Ex.P.6 : Track copy
Ex.P7 Certified copy of sale deed dtd:7.3.2015
Ex.P8 : Certified copies of income tax return for
the assessment year 201617 (6 pages) Ex.P9 Certified copy of Acknowledgment of debt Ex.P.10 : Bank Statement Ex.P.10(a) : Relevant entry in Ex.P.10
3. Witnesses examined on behalf of Accused:
D.W.1 : Sri.N.Venkatesh D.W.2 : Sri.Ravikumar C D.W.3 : Sri.K.Chandru
4. Documents marked on behalf of Accused:
41C.C.No.54998/2016 Ex.D.1 : Notarized copy of Bank Passbook Ex.D.2 : Notarized copies of Legal Notices & Ex.D.3 Ex.D.4 : Notarized copy of Complaint U.S.200 of Cr.P.C.
Ex.D5 : Certified copy of order sheet in CC 53669/2016 Ex.D6 : Certified copy of complaint in CC 53669/2016 Ex.D7 : Certified copy of order sheet in CC No.56790/2017 Ex.D8 : Certified copy of complaint in CC No.56790/2017 Ex.D9 : Certified copy of order sheet in PCR 5370/2019 Ex.D10 : Certified copy of the complaint in PCR No.5370/2019 (M.Vijay), XXXIII ACMM, BENGALURU.