Bangalore District Court
L.R.Lakshmipathi vs K.V.Krishnappa on 5 March, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 5th day of March - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.18139/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : L.R.Lakshmipathi,
S/o.Late.Rangaswamaiah,
Aged about 49 years,
R/at No.53, Lingapura Village,
Kengeri Hobli, K.Gollahalli Post,
Bengaluru South Taluk,
Bengaluru-74.
(Rep. by Smt.Sheela, Adv.)
V/S
Accused : K.V.Krishnappa,
S/o.Late.Venkataramanappa,
Ex Taluk Panchayath President,
Aged about 65 years,
R/at. No.112, BGS Circle,
K.Gollahalli Village & Post,
Kengeri Hobli, Bengaluru South Taluk,
Bengaluru-74.
(Rep.by Sri.G.Gangaswamy, 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 : 05.03.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.18139/2018
JUDGMENT
The complainant has presented the instant complaint against the accused on 11.06.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheques of Rs.15 lakhs each, amounting to Rs.30 lakhs.
2. The facts raised in brief in the present complaint is as follows:
The complainant has averred that, he is agriculturist by profession and also doing real estate business. Earlier, he was a carpenter and while doing the carpentry work of the newly constructed house of the accused about 10 years back, he came into contact with the accused. Since then, gradually developed the friendship between him and accused. The accused was also Taluk Panchayath President in Bengaluru South Taluk for few years and known personality in and around the village.
The complainant has further alleged that, in the year 2012, when the accused was in need of funds, as he was under the sever financial crisis, he requested the complainant to pay hand loan of Rs.25 lakhs stating that, he would repay the same within 3 months. Due to the close relationship, the complainant obliged for the same and gave the accused an amount of Rs.25 lakhs as Judgment 3 C.C.No.18139/2018 hand loan. As agreed, the accused has returned the said amount of Rs.25 lakhs to the complainant in September, 2012 through a cheque and same was drawn by the complainant.
The complainant has further alleged that, again in the 1st week of October, 2017, the accused had requested the complainant to pay hand loan of Rs.30 lakhs, as he had fallen short of money in buying a property, stating that, he would repay the same within the period of 2 months. Again due to the close friendship with the accused for the years, he agreed to pay the same and arranged the necessary fund, out of his agricultural income, some saving and also took more money from his family members and paid to the accused sum of Rs.30 lakhs by way of cash on 16.10.2017.
The complainant has further contended that, the complainant met the accused for several times in between December, 2017 to February, 2018, requesting him to repay the loan of Rs.30 lakhs, but he went on postponing the same on one or other pretext. Again, when he met with the accused during 2nd week of March, 2018, accused got issued 2 cheques bearing Nos.879432 and 879433 respectively dated:31.03.2018 for sum of Rs.15 lakhs each, drawn on ING Vysya Bank Ltd., R.V.College of Judgment 4 C.C.No.18139/2018 Engineering Branch, Bengaluru-59. When he presented the said cheques for encashment on 31.03.2018, the accused has called the complainant and requested to present them after 15 days, as he would arrange the fund, definitely to honour the cheques.
The complainant has further alleged that, believing the words of the accused and based on his assurance, he presented both the cheques through his banker viz., UCO Bank, Kengeri Branch, Bengaluru-60 on 16.04.2018. The said cheques came to be dishonoured as per memo dated:17.04.2018 for the reasons "Account Closed". Thereafter, the complainant approached the accused and appraised for repayment of the loan, then, he avoided to meet the complainant and dodged to repay the amount by stating one or other reasons. The complainant has paid the money with pain and difficulty and accused abused the utmost good faith, which reposed by him. The accused deliberately got closed his bank account in order to cheat and defraud the complainant for making wrongful gain. Hence, the complainant got issued legal notice on 27.04.2018 through his counsel by way of R.P.A.D and the same was served on accused and in turn, he got replied. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, the complaint.
Judgment 5 C.C.No.18139/2018
3. After receipt of the private complaint, this 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 the 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 P20(a). In order to prove his case, the complainant got choosen to examined 3 witnesses by names Sri. Chethan Shetty, who is the Branch Manager of Banasawadi, Sri. Madaiah, who is the Chief Manager of UCO Bank, and one R.Srinivas, who is the BMTC Conductor as PW.2 to P4 and through them got marked Exs.P21 to P32. The PW.1 to P4 was subjected for cross-examination by the advocate for accused/complainant. In the cross-examination of PW.1, accused counsel got confronted one document and same is marked as Ex.D1.
Judgment 6 C.C.No.18139/2018 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 this case, the accused has not choosen to entered into the witness box.
7. Both side counsels have addressed their arguments.
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 paid sum of Rs.30,00,000/- on 16.10.2017 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Exs.P1 and P2 cheques bearing Nos.879432 and 879433, dated:31.03.2018 for sum of Rs.15 lakhs each, drawn on ING Vysya Bank Ltd., R.V.College of Engineering Branch, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) 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 : As per final order, for the following:
Judgment 7 C.C.No.18139/2018
REASONS
10. POINT NOs.1 and 2: Since both the 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 P20, they are:
a) Exs.P1 and P2 are the cheques bearing Nos.879432 and 879433 issued by the accused for sum of Rs.15 lakhs each, dated:31.03.2018, drawn on ING Vysya Bank Ltd., R.V.College of Engineering Branch, Bengaluru.
b) Exs.P1(a) and P2(a) are the alleged signatures of accused.
c) Exs.P3 and P4 are the Bank challan counter foils.
d) Exs.P5 and P6 are the Bank Memos
dated:17.04.2018.
e) Ex.P7 is the Legal Notice dated:27.04.2018.
f) Ex.P8 is the Postal receipt.
g) Ex.P9 is the Postal Acknowledgment Card.
h) Ex.P10 is the reply notice dated:19.05.2018 issued by accused through his counsel to the complainant counsel by denying the entire allegations at Ex.P7 legal notice.
i) Ex.P11 is the statement of account for the period from 01.04.2012 till 01.04.213 pertaining to complainant.
j) Ex.P12 is the MR Extract.
Judgment 8 C.C.No.18139/2018
k) Ex.P13 is the police complaint dated:14.05.2018 lodged by accused before the Kaggalipura Police Station against the complainant.
l) Ex.P14 is the acknowledgment issued by Kaggalipura police station.
m) Ex.P15 is the counter complaint dated:25.05.2018 lodged by complainant before the Kaggalipura Police Station against the accused.
n) Ex.P16 is the acknowledgment issued by Kaggalipura police station.
o) Ex.P17 is the legal notice dated:14.06.2018 issued by accused through his counsel to the complainant.
p) Ex.P18 is the reply notice dated:30.06.2018 issued by complainant through his counsel to the accused counsel.
q) Ex.P19 is the postal receipt.
r) Ex.P20 is the private complaint and
s) Ex.P20(a) is the signature of complainant.
11. That apart, to prove his case, the complainant got choosen to examined one Sri Chethan Shetty, who is Branch Manager as PW.2 and through him got marked Exs.P22 to P32. They are:
a) Ex.P22 is the Xerox copy of bank account opening form.
b) Ex.P22(a) to P22(b) are the signatures of accused.
c) Exs.P23 & P25 are the Xerox copies of PAN Card pertaining to accused.
d) Ex.P24 is the Xerox copy of Voters Identity Card pertaining to accused.
e) Exs.P26 & P27 are the Xerox copies of bank documents.
Judgment 9 C.C.No.18139/2018
f) Ex.P28 is the Xerox copy of Annexure-2 i.e., Checklist for KYC and Due diligence.
g) Ex.P29 is the Xerox copy of Annexure-1, customer due diligence form.
h) Ex.P30 is the Xerox copy of rejection memo.
i) Ex.P31 is the Xerox copy of bank document.
j) Ex.P32 is the Xerox copy of statement of account for the period from 29.06.2012 till 10.12.2013 pertaining to the accused.
12. That apart, to prove his case, the complainant has also choosen to examined one more witness by name Madaiah, who is the Chief Manager of UCO Bank, Kengeri Branch, was also examined as PW.3 and through him got marked Exs.P21. It is :
k) Ex.P21 is the copy of Transaction Inquiry pertaining to the complainant herein.
13. That apart, the complainant got examined one more witness by name R.Srinivas as PW.4. The PW.1 to PW.4 were subjected to the cross-examination by the advocate for the accused.
14. In this case, the accused has not choosen to entered into the witness box. But in the cross-examination of PW.1, accused counsel got confronted one document and same is marked as Ex.D1. It is:
a) Ex.D1 is the statement of account for the period from 13.08.2012 to 01.10.2012 pertaining to the accused.
Judgment 10 C.C.No.18139/2018
15. After cross-examination of PW.1, the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and submitted his 313 (5) of Cr.P.C. written statement.
16. In this case, the advocate for the accused cross-examined the PW.1 in detail. In order to prove the contention of the complainant, as accused taken up the defence that, the accused has denied the very borrowing of loan and denied the issuance of questioned cheques, as well as specifically contended, those cheques were not issued by him, but when the complainant was working as carpenter in the newly constructed building of accused, he stolen those cheques, later got filled and fabricated the signature and presented it for encashment and filed the false case. Even, the accused has denied the signature found in the questioned cheques. Hence, the complainant to disprove the contention of the accused and substantiate his contention, he choosen to examined the Branch Manger by name Sri Chethan Shetty as PW.2. The said witness on oath examined and in chief examination he deposed, in pursuance of summons, he came to before the court and led evidence. Wherein, he stated, since 3 years, he is working in the Kotak Mahindra Bank, earlier it was the then ING Vysya Bank. The PW.1 has produced the account Judgment 11 C.C.No.18139/2018 opening form and other documents pertaining to the accused, at the time of opened his account in the then ING Vysya Bank, as well as produced the statement of account pertaining to the accused as well as reflects cheque Nos.879431 to 879433.
Since, the particulars of the closure of the account of the accused were not available with the present bank, on account of merge, it was kept in head office and undertakes to produce the same. Accordingly, on the subsequent hearing date, the said witness brought the bank statement of the accused and in all through the PW.2 got marked the documents at Exs.P22 to P32. The PW.2 was subjected for cross-examination by the advocate for complainant and accused. In the cross-examination of PW.1, done by the advocate for complainant, he deposed that:
"¤¦.22 gÀ°è DgÉÆæAiÀÄ ¸À»AiÀÄ£ÀÄß ¸ÁQëAiÀÄÄ £ÉÆÃr UÀÄgÀÄw¹zÀÄÝ, ¤¦.22J ªÀÄvÀÄÛ ¤¦.22© JA§ÄzÁV UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. DgÉÆæ G½vÁAiÀÄ SÁvÉAiÀÄ CPËAmï ºÉÆA¢zÀÝgÀÄ. ¸ÁªÀiÁ£ÀåªÁV ¨ÁåAPï£À SÁvÉAiÀÄ£ÀÄß ªÀÄÄPÁÛAiÀÄ ªÀÄÁqÀĪÁUÀ, UÁæºÀPÀgÀÄ £ÀªÀÄä ¨ÁåAQUÉ §AzÀÄ CfðAiÀÄ£ÀÄß PÉÆlÖ°è ªÀiÁvÀæ SÁvÉ ªÀÄÄPÁÛAiÀÄ ªÀiÁqÀÄvÉÛêÉ."
17. On meticulous perusal of the said cross-examination, it depicts, the PW.2, who is authorized person, wherein, the specimen signature of the accused at the time of open his account at undisputed time were available and produced before this court Judgment 12 C.C.No.18139/2018 and himself identified and ascertained that, the signature found at Ex.P22 is of the accused, hence, it was marked as Ex.P22(a) and P22(b). Very particularly he deposed that, the accused had savings bank account in the bank and on the event of accused submitted application for closure of account only got closed the account. Based on the said Exs.P22 and P23, the PW.2 has deposed, as to the signatures on the questioned cheque at Exs.P1 and P2 that:
"¸ÁQëAiÀÄÄ ¤¦.1 ªÀÄvÀÄÛ 2gÀ ZÉQÌ£À°ègÀĪÀ DgÉÆæAiÀÄ ¸À»UÀ¼ÁzÀ ¤¦.1J ªÀÄvÀÄÛ 2J ºÁUÀÆ ¤¦.23 ¥Á£ï PÁqïð £À°ègÀĪÀ DgÉÆæAiÀÄ ¸À»AiÀÄ£ÀÄß £ÉÆÃr, CªÉ®èªÀÇ MAzÉà jÃw EzÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ."
18. On meticulous perusal of the said testimony of PW.2, he clearly identified that, the signature of the accused at Exs.P1 and P2, which got marked as Exs.P1(a) and P2(a) are tallied with the signature at Ex.P23, which is none other than the PAN Card of the accused. Even, in his cross-examination PW.2 has identified the person present before the court, is the customer of his bank as found in Ex.P31.
19. No doubt, in the cross-examination of advocate for the accused, he clearly deposed that, when the cheques were Judgment 13 C.C.No.18139/2018 presented for encashment, first of all, would seek the sufficient fund in the account, then only enquired about the signature of the drawer. In case, there was account closed, would not verify the signature in the cheques, in case presented for encashment. However, in the further cross-examination of PW.2, he categorically deposed that, in case of sufficient funds maintained in the account, where the cheques were presented for encashment, even after merging of their bank with Kotak Mahindra Bank, would honour the cheques. The PW.2 has admitted that, the account of the accused as per the bank endorsement at Exs.P3 and P4 got closed.
20. The PW.2 has deposed that, the accused was the then customer and questioned cheques were of issued by it and the signatures found in the cheques is similar to the PAN Card produced before the bank at Ex.P23 are tallies each other. Even no suggestion is made to PW.2 that, Exs.P1(a) and P2(a) signatures is not of the accused. Therefore, from the evidence of PW.2 it stands proved that, the accused had account in the bank of PW.2 and the questioned cheques and signatures of the accused. The PW.2 was the competent person to say as to the say.
Judgment 14 C.C.No.18139/2018
21. The complainant in order to prove the signature of the accused, also examined the Chief Manger of UCO Bank, Kengeri Branch as PW.3. Who orally examined and on oath he deposed that, in pursuance of summons, he appeared before this court and led evidence and since 2 years he has been working there. The PW.3 has produced the bank statement of the complainant at Ex.P21. The advocate for the complainant and accused cross- examined him. From the evidence of PW.3, it also made clear that, the Exs.P1 and P2 cheques were submitted for collection will appeared in the statement at Ex.P21, wherein, discloses, it was rejected. The evidence of PW.3 is also discloses, the banker slips are prima facie and it was genuinely issued by the bank authorities.
22. To prove the contention of the complainant, as to mobilization of fund, he choosen to examined another witness by name R.Srinivas, who is none other than, elder brother of complainant, who choosen to filed affidavit in lieu of his chief examination and on oath examined as PW.4. The PW.4 in his affidavit evidence has contended that, the complainant is his younger brother and he knew the accused. As he was his classmate in K.G.Gollahalli Government School and accused was close friend of his brother.
Judgment 15 C.C.No.18139/2018
23. The PW.4 has deposed that, during the 1st week of October, 2017, the complainant sought for financial help of Rs.20 lakhs from him stating that, the accused was short fallen of fund of Rs.30 lakhs to buy a property and he undertakes to return within 3 months. In view of helping his brother and also earlier in the year 2012, as the accused had returned sum of Rs.25 lakhs borrowed from the complainant, in time, the PW.4 assured his brother to help him stating that, in need time to arrange the funds. By that time, the PW.4 and his younger sister by name Susheela had jointly sold a site in Sy.No.51 at Thippur Village and were looking for purchase another property out of the said sale proceeds, the PW.4 and his younger sister have paid sum of Rs.10 lakhs each to the complainant. The complainant along with his money and took the said money from PW.4 of Rs.10 lakhs and lent to the accused. Thus, in all Rs.30 lakhs was paid by the complainant to the accused.
24. The PW.4 has further contended that, later he came to know through his brother complainant that, the accused failed to return the loan amount of Rs.30 lakhs in time, as agreed and in turn, accused got issued 2 cheques to the complainant and the same came to be dishonoured, as the accused got closure of his account. Hence, complainant was filed the present case. Hence, Judgment 16 C.C.No.18139/2018 PW.4 prayed for allow the present complaint. The PW.4 subjected for cross-examination by the advocate for the accused.
25. During the course of cross of PW.4, he deposed that, he is BMTC Conductor. The PW.4 in the cross-examination has deposed that, the accused is financial well and he does not know about the income of property particulars of the accused. More particularly PW.4 has deposed that, he is not an income tax assessee. More particularly he deposes that, though in affidavit evidence stated, accused borrowed loan for the purpose of purchase the property, he deposed, he does not know, where the accused had purchased the property. The PW.4 in his cross- examination has deposed that:
"DgÉÆæ AiÀiÁªÀ D¹ÛAiÀÄ£ÀÄß JµÀÄÖ ªÉÆvÀÛPÉÌ J°è Rjâ¹zÀgÉAzÀÄ £À£ÀUÉ UÉÆwÛ®è. 02.10.2017 gÀAzÀÄ £À£Àß vÀªÀÄä ¦AiÀiÁð¢UÉ gÀÆ.30 ®PÀëªÀ£ÀÄß £À£Àß ªÀÄ£ÉAiÀįÉèà PÉÆnÖzÉÝ£ÀÄ. D ºÀt ¥ÀqÉAiÀÄĪÀ MAzÀÄ ªÁgÀzÀ ªÀÄÄAZÉ §AzÀÄ PÉýzÀÝgÀÄ. ¦AiÀiÁ𢠣À£Àß §½ ºÀt PÉüÀĪÁUÀ, CµÀÄÖ ªÉÆvÀÛ £À£Àß ªÀÄ£ÉAiÀįÉèà ElÄÖPÉÆArzÉÝ£ÀÄ. D ºÀtªÀ£ÀÄß ºÉÆA¢¸À®Ä 3-4 ¢£À £À£Àß vÀªÀÄä PÉýzÀ §½PÀ vÉUÉzÀÄPÉÆArzÉÝãÉ. £À£Àß vÀªÀÄä £À£Àß §½ ºÀt PÉüÀĪÁUÀ, £À£Àß°è gÀÆ.30 ®PÀë E¢ÝvÀÄÛ. D ¸ÀAzÀ¨Àsð £À£Àß §½ gÀÆ.1,000/- ªÀÄvÀÄÛ gÀÆ.500/- ªÀÄÄR ¨É¯ÉAiÀÄ £ÉÆÃlÄUÀ¼ÀÄ EzÀݪÀÅ. JµÀÄÖ JµÀÄÖ §AqÀ¯ïUÀ¼ÀÄ EzÀݪÀÅ JAzÀÄ FUÀ ºÉüÀ®Ä ¸ÁzÀså«®è."
Judgment 17 C.C.No.18139/2018
26. On gong through the said testimony of PW.4, he deposed, he does not know, where, for what sale consideration the accused had purchased the property. Even, very particularly the PW.4 has deposed that, on 02.10.2017 complainant gave Rs.30 lakhs to the accused in his house. Even, he deposed that, one week earlier to the alleged payment, the accused asked for loan. The PW.4 has also deposed that, when complainant was asked for the money, the said money was with him in his house. Even stated for arrange the said money, he took 3 - 4 days after his brother requested for the amount. When his brother asked for the money with the PW.4, he stated that, he had Rs.30 lakhs with him and it was the denomination of Rs.1,000/- and Rs.500/- and documentary evidence snot know, how many bundles were there. The said evidence of PW.4 reveals the two fold. In the affidavit he stated, he gave Rs.10 lakhs and his sister Susheela gave Rs.10 lakhs to the complainant and rest of money arranged by the complainant and gave it to the accused, in all Rs.30 lakhs.
27. In the complaint as well as evidence of PW.1 and PW.4 does not disclose, those money were paid to the accused in the house of PW.4. But PW.4 has deposed, Rs.30 lakhs were paid by the complainant to the accused in the house of PW.4. Even, he clarified that, on one week earlier to the request made by the Judgment 18 C.C.No.18139/2018 accused, the complainant asked the PW.4 for money. The said evidence of PW.4 creates doubt, as to the genuineness of the transaction. If at all, the complainant arranged the fund from the PW.4 as well as sister Susheela, as he alleged, definitely, he could have pay money directly to the accused either in the house of complainant or in the house of accused, but contrary to their pleading and evidence, PW.4 has deposed the said money was given by the complainant to the accused in his house. Therefore, the said evidence creates doubt, as to the alleged passing of consideration from the hands of complainant to the accused.
28. As everybody know the factum that, the currency of Rs.500/- and Rs.1,000/- were demonetarized by virtue of the Central Government enactment came into effect from 08.11.2016. From which, it made clear that, the currency of Rs.500/- and Rs.1,000/- had lost value and if at all, the old currency was with anybody, the Central Government and RBI had provided an opportunity to the respective holders, to remit the old currency to the bank and convert it to new currency. Under such circumstances, all the currency was handed over by the PW.4 to the complainant is not been explained. However, from the incident it can make out that, after lapse of about 11 months, PW.4 claiming the payment of Rs.10 lakhs to the complainant, Judgment 19 C.C.No.18139/2018 therefore, it is the PW.4 and complainant has to demonstrate, how he gathered the new currency after demonetarization. If at all, they did any bank transaction, definitely, it was the vital piece of document could have place, but no such effort is been made.
29. No doubt, whether it was knowingly or unknowingly PW.4 has deposed on 02.10.2017, his brother complainant gave Rs.30 lakhs to the accused in his house. Even, in his further cross- examination he deposed, he gave Rs.20 lakhs to the complainant and when he handed over the said money to the complainant, PW.4, his wife and his younger sister - Susheela were there and on one Sunday at 4.00 pm, he gave the said money. Even he deposed, by sold the property of PW.4 and his sister - Susheela on 09.06.2017, they have gave Rs.20 lakhs to the complainant. In order to show the same, the PW.4 has not produced the copy of sale deed.
30. PW.4 further clarifies the question asked by the accused, sale agreement to allege lent of money. By that time, PW.4 has clarified that, complainant gave money to the accused on 16.10.2017 and he does not know, where he lent. Even he deposed, at that time, who were present, he does not know. The advocate for the accused had suggested to the PW.4 that, the Judgment 20 C.C.No.18139/2018 accused no need to borrow the huge amount of Rs.30 lakhs from the complainant and PW.4 has deposed falsely.
31. On appraisal of evidence of PW.4, as he contended, claimed to be paid Rs.20 lakhs to the complainant arranging Rs.10 lakhs each himself as well as Rs.10 lakhs his sister by name Susheela. It is significant fact to note that, he in the earlier occasion deposed, he got received sale consideration of Rs.30 lakhs and paid to the complainant. More particularly, he deposed, the PW.4 being an BMTC Conductor having limited salary. It is not his contention that, he arranged the fund out of his savings or any loan etc. But specifically stated, on 09.06.2017, he and his sister sold the immovable property and paid the money to the complainant on the same day. The PW.4 only orally stated that, he mobilized fund as such. Therefore, the sale deed as he suggested entered into on 09.06.2017, as to, he himself sold the immovable property in favour of vendee is the relevant document which reflects the sale consideration received by the PW.4 and his sister.
32. On meticulous perusal of the document produced by the complainant, it does not discloses, any document as such. No doubt, the complainant had produced the mutation register extract Judgment 21 C.C.No.18139/2018 at Ex.P12. On careful perusal of the same, it discloses the name of complainant and he acquired the right by virtue of partition. Therefore, the complainant projected this case arranged fund out of his agricultural income, and he stated, Rs.5 lakhs had been earned by him. In order to show that, Rs.5 lakhs gathered by the complainant from agricultural and other savings, no document is been produced. The Ex.P12 MR Extract only discloses the name of complainant as well as his brother R.Srinivas. The PW.4 stated, about sold the property in favour of vendee along with his sister very particularly on 09.06.2017, the said material document is not been produced either by PW.4 or by complainant. The PW.4 has deposes that, complainant gave money to the accused on 06.10.2017, but he stated, he does not know, where it paid and who were present at the time of the amount paid so. Even, he deposed, at the time of alleged lent of money to the accused, he not secured any acknowledgment. He himself admitted, out of his salary of Rs.45,000/-, Rs.10,000/- were deducted and remaining amount would payable to him. Therefore, it is him to produce the document of sale deed dated:09.06.2017, to establish his claim of gathered money of Rs.10 lakhs by himself and Rs.10 lakhs by his sister, paid to the complainant.
Judgment 22 C.C.No.18139/2018
33. The accused was strongly suggested to the PW.4, during his cross-examination that, no money as alleged by the PW.4 were paid to the complainant and PW.4 had no financial capacity to pay sum of Rs.20 lakhs to the complainant. Even then, it is the PW.4 requires to produce the sale deed, which reveals the sale transaction and payment of consideration. If at all, they have sold the property, it is for their personal requirement or some other particular purpose. Under such circumstances, for what amount they sold the property and how they have mobilized the fund and where it was kept, how it is possible to the PW.4 as well as his sister by name Susheela came forward to pay the entire amount to the complainant, as he deposed, though it was required for the complainant and came forward to pay money to the accused through the complainant, itself created doubt, as to the bonafidness of the transaction put forth by the complainant and evidence led by the PW.4. There was serious lacks from the evidence of PW.1 and PW.4, though they are claiming mobilization of fund of Rs.10 lakhs from PW.4 as well as his sister
- Susheela, not examined the said sister - Susheela nor produce the sale deed dated:09.06.2017, which alleged to be executed by the PW.4 and his sister in favour of vendee. The said document is the vital document, which reveals the mobilization of fund of Judgment 23 C.C.No.18139/2018 Rs.30 lakhs as he alleged. If t all, they sold the property, it should be only by virtue of registered sale deed, but the PW.4 or PW.1 for the reasons better known to them, not produced any document.
34. It is not the contention of PW.4 and his sister Susheela that, accused known to them and hence, in order to help him to meet out his emergent requirement, they came forward to pay the money. When they do not know the accused, was it necessary to pay the entire sale consideration to the complainant in order to help the unknown accused, itself creates doubt, as to the genuineness of transaction. Normally, people sold the property to meet out the emergent requirement or for any alternative purchase of land, but to show that, what purpose they sold the property and what purpose intends to utilize the sale consideration is not been satisfactorily explained. Hence, it made clear that, the registered sale deed dated:09.06.2017 is the vital document, which is foundation to the claim of PW.1 as well as PW.4, to show the mobilization of fund of Rs.20 lakhs. But for the reasons better known to them, they have with held the said document and thereby, failed to prove the mobilization of fund of Rs.20 lakhs from PW.4 as well their sister - Susheela. Mere oral evidence by avoiding the production of documentary evidence as such, does Judgment 24 C.C.No.18139/2018 not repose any confidence as to the mobilization of fund. In view of the accused strongly attack on the financial capacity of the PW.1 as well as PW.4, the complainant and PW.4 require to produce those documents. But they have failed todo so. The PW.4 also made prayer in his affidavit has to allow the present complaint. Therefore, it is him to produce the said document and examine his sister, as the alleged payment of Rs.10 lakhs each. But the non-production of document and non-examination of the said Susheela is fatal to the case of complainant.
35. No doubt, as per Ex.P12 it reveals that, there was partition entered into between complainant and his brother PW.4. When they are separated each other, it discloses, how it was possible to pay the huge amount without secured any documents from the complainant is also created doubt. Therefore, no doubt, the complainant took pain to examine his brother, but for the reasons better known to him avoided to produce the registered sale deed cited supra as well as examine his sister by name Susheela, as to the arrangement of Rs.20 lakhs. Hence, it is strong doubt created, as to the mobilization of fund of Rs.20 lakhs by complainant through PW.4 as well as his sister - Susheela through the source of registered sale deed dated:09.06.2017.
Judgment 25 C.C.No.18139/2018
36. In this case, the complainant has alleged that, he paid Rs.30 lakhs to the accused. As discussed earlier, as per his evidence, he stated Rs.20 lakhs arranged by his brother PW.4 and sister - Susheela, but failed to demonstrate the same. Whereas, he also deposed that, sum of Rs.10 lakhs arranged by himself. The PW.1 has deposed that, out of Rs.10 lakhs, he arranged sum of Rs.5 lakhs by way of doing some works and kept in his house and stated remaining amount of Rs.5 lakhs were gathered by him by sold the agricultural usufructs. It is relevant to reproduce the said evidence of PW.1. It runs thus:
"£Á£ÀÄ ªÀåªÀ¸ÁAiÀÄ¢AzÀ G½PÉ ªÀiÁrzÀ gÀÆ.5 ®PÀë, ¨É¼É ªÀiÁgÁl ªÀiÁrzÀ ºÀt £À£Àß ªÀÄ£ÉAiÀÄ°è E¢ÝvÀÄ. G½zÀ ºÀt vÀAV ¸ÀIJïÁ gÀªÀjAzÀ, CtÚ ²æäªÁ¸À¤AzÀ vÀ¯Á gÀÆ.10 ®PÀëªÀ£ÀÄß ºÉÆA¢¹zÉÝ£ÀÄ. G½zÀ gÀÆ.5 ®PÀëªÀ£ÀÄß £Á£ÀÄ ¸ÀtÚ¥ÀÅlÖ PÉ®¸À ªÀiÁr §A¢zÀÄÝ, ªÀÄ£ÉAiÀįÉèà ElÄÖPÉÆArzÀÄÝ, MmÁÖgÉ gÀÆ.30 ®PÀë DgÉÆæUÉ PÉÆnÖzÉÝ£ÀÄ. PÀʶ¬ÄAzÀ JµÀÄÖ DzÁAiÀÄ §gÀÄvÀÛzÉ JAzÀÄ vÉÆÃj¸À®Ä zÁR¯É ºÁdgÀÄ ¥Àr¹®è. £À£Àß CtÚ ªÀÄvÀÄÛ vÀªÀÄä D¹ÛAiÀÄ£ÀÄß ªÀiÁgÁl ªÀiÁr §AzÀ ºÀtªÀ£ÀÄß £À£ÀUÉ PÉÆnÖzÀÝgÀÄ. PÀʶ¬ÄAzÀ ºÀt §gÀÄvÀÛzÉ JAzÀÄ vÉÆÃj¸À®Ä zÁR¯É E®è."
37. On going through the said testimony of PW.1, it clearly discloses, he narrated how he mobilized the funds. On going through the Ex.P12 MR Extract, it does not discloses, what kind of Judgment 26 C.C.No.18139/2018 crops grown by the complainant in his property. The Ex.P12 discloses description of the property in the name of complainant measuring 0.33 guntas as well as 0.03.08 guntas. From which, was it possible to gain income of Rs.5 lakhs, if so, what was the crops he grown and how he gathered money, no particulars is been furnished by the complainant. Even he deposed that, he does not have any document to show that, the income earned through cultivation. Likewise, to show that, he gathered Rs.5 lakhs by way of doing works and kept in his house, also not examined, any one of the witness, to show that, he mobilized the fund as such. Even, he not explained, if at all, he had the requisite cash of Rs.30 lakhs as such, definitely, while pay money to the accused, he must obtain necessary document at the time of passing of consideration, but in that regard, the PW.1 has deposed that:
"DgÉÆæ CPÉÆÖçgï 2017 gÀ°è £À£Àß §½ gÀÆ.30 ®PÀë D¹ÛAiÀÄ£ÀÄß Rjâ¸ÀĪÀ ¸À®ÄªÁV PÀȵÀÚ¥Àà J£ÀÄߪÀªÀgÉÆA¢UÉ §AzÀÄ £Á£ÀÄ DgÉÆæAiÀÄ ªÀÄ£ÉAiÀÄ §½ ºÉÆÃzÁUÀ PÉýzÀÝgÀÄ. ¢£ÁAPÀ 16.10.2017 gÀAzÀÄ £Á£ÀÄ DgÉÆæUÉ gÀÆ.30 ®PÀëªÀ£ÀÄß £ÀUÀzÁV, DgÉÆæAiÀÄ ªÀÄ£ÉUÉ ºÉÆÃV ¨É½UÉÎ 10.00 UÀAmÉUÉ PÉÆnÖgÀÄvÉÛãÉ. D ¸ÀAzÀ¨Àsð DgÉÆæAiÀÄ ªÀÄ£ÉAiÀÄ°è DvÀ£À ºÉAqÀw ªÀÄPÀ̼ÀÄ EzÀÝgÀÄ. £Á£ÉƧâ£Éà ºÉÆÃV PÉÆnÖgÀÄvÉÛãÉ. £Á£ÀÄ gÀÆ.500/- ªÀÄvÀÄÛ gÀÆ.1000/- ºÀ¼ÉAiÀÄ Judgment 27 C.C.No.18139/2018 £ÉÆÃlÄUÀ¼À ªÀÄÄSÁAvÀgÀ PÉÆnÖgÀÄvÉÛãÉ. CªÀÅUÀ¼ÀÄ JµÉÖµÀÄÖ §AqÀ¯ï£À £ÉÆÃlÄUÀ¼ÀÄ EzÀݪÀÅ JAzÀÄ £É£À¦®è."
38. On perusal of the evidence of PW.1, he deposes that, accused for the purpose of purchase the property asked the complainant during October, 2017 for Rs.30 lakhs and he came along with one Krishnappa and when he went to the house of accused, then the accused asked for the said loan amount. The said evidence discloses, the accused not came to the house of complainant along with Krishnappa, requesting for loan of Rs.30 lakhs, but the PW.1 says, whenever he went to the house of accused, he asked loan in the presence of Krishnappa. It made clear that, the accused not approached the complainant, but whenever complainant went to the house of accused, he asked for the loan. Therefore, the alleged Krishnappa, who present at the time of request made by the accused is necessary witness and he is not been examined by the complainant. In order to show that, any effort is made to secure his presence to prove his case, no effort is made by the complainant. At least, if at all, the said Krishnappa is not acceptable to the complainant, he could secure by use the process of court and could have secured his presence. But the said Krishnappa is not been examined, though he was the eye witness to the said request made by the accused.
Judgment 28 C.C.No.18139/2018 39. The said cross-examination further reveal that, the
complainant himself claimed went to the house of accused and paid Rs.30 lakhs in cash very particularly on 06.10.2017 in the morning at about 10.00 am. By that time, he stated, his wife and children were there in his house. Even he stated, he went alone and paid money in cash in the denomination of Rs.500/- and Rs.1,000/- and he does not remember, how much bundles were there. It is significant fact to note that, if at all, accused required money, it is him to take pain to go to the house of complainant and collect money. But contrary, the complainant himself took pain to mobilize the fund through other source and alleged to be came to the house of accused and paid in cash itself created doubt. If at all, he paid money to the accused, that too, by huge amount of Rs.30 lakhs, they knew that, it was not of him, but claimed to be arranged through PW.4 as well as his sister - Susheela, definitely, the complainant could have collect necessary documents, as to the passing of consideration, but no such contention is taken nor produce any document in that regard. Was it possible to pay the said huge amount to the accused, without obtaining any security document, itself creates doubt.
40. From the conjoint reading on (a) and (b) of Section 138 of Negotiable Instruments Act, it clear that, as per presumption Judgment 29 C.C.No.18139/2018 under these clauses, the consideration is suppose to have been received on the date of cheque. If, from the evidence of drawer of cheque, it can be gathered that, on the date of cheque, no consideration was paid or in other words, if according to the specific cases of the complainant, in due course of cheque, loan was taken on a particular day and for the discharge of the same, on a later date a lonee issued the cheque as observed in the dictum reported in ILR 2008 KAR 4619, in a case between Shivamurthy V/s. Amruthraj, it has to be presumption has to be drawn that, as per Section 118(A) stands rebutted.
41. In that event, the drawee of the cheque has to prove, as a matter of fact of existence of legally enforceable debt or liability before involving the presumption under Section 139 of Negotiable Instruments Act. As per Section 139 of Negotiable Instruments Act, do not extend as to the existence of debt or legally enforceable liability has held by the Hon'ble Supreme Court in a case (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s. Dattatraya G Hegde).
42. That apart, on appraisal of the above piece of evidence, it also the complainant claiming paid hard cash of Rs.30 lakhs in the denomination of Rs.500/- and Rs.1000/- notes. It is the general Judgment 30 C.C.No.18139/2018 fact known at the public large, that on 08.11.2016 itself the old currency of Rs.500/- and Rs.1,000/- came to be demonetarized. From the said period, even till now it is so difficult to arrange the hard cash of Rs.30 lakhs and do money business. Under such circumstances, that too, immediately about within 11 months of the said demonetarization and no prudent man came to take risk to deal with hard cash, in view of subsequent development of the money transaction, but the complainant claiming that, he arranged Rs.30 lakhs and paid to the accused, it creates doubt. Therefore, in order to show that, sum of Rs.30 lakhs were possessed by the complainant as hard cash and paid to the accused, he require to produce necessary documents. The complainant perhaps based on the questioned cheques, put forth his claiming that, he paid Rs.30 lakhs to the accused. But he utterly failed to prove the mobilization of fund as such, though examined PW.4, his evidence does not repose any confidence.
43. If at all, the complainant took risk, when went to the house of accused, he asked for the loan of Rs.30 lakhs and as said, he himself took the hard cash of Rs.30 lakhs and went to the house of accused and paid money. It reveal that, in order to help the accused, he paid money, therefore, he must know, what was the compelling circumstances to the accused asked for the loan. In Judgment 31 C.C.No.18139/2018 the complaint, he stated that, as accused fall short of money to buy a property, he asked for the loan of Rs.30 lakhs, accordingly, he paid. But in his further cross-examination, he deposed that:
"DgÉÆæ J°è, AiÀiÁªÁUÀ, JµÀÄÖ «¹ÛÃtð ªÀÄvÀÄÛ AiÀiÁjAzÀ AiÀiÁªÀ D¹ÛAiÀÄ£ÀÄß Rjâ ªÀiÁrzÀÝgÀÄ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. £À¤ßAzÀ ºÀt ¥ÀqÉzÀ §½PÀ DgÉÆæ D¹ÛAiÀÄ£ÀÄß Rjâ ªÀiÁrzÀ §UÉÎ £À£ÀUÉ UÉÆwÛ®è. DgÉÆæ AiÀiÁªÀÅzÉà C¹Û Rjâ¸ÀĪÀ EZÉÑ, ºÉÆA¢gÀ°®è £Á£ÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæUÉ gÀÆ.30 ®PÀëzÀ CªÀ±ÀåPÀvÉ EgÀ°®è, £À¤ßAzÀ CµÀÄÖ ºÀt ¥ÀqÉ¢®è JAzÀgÉ ¸ÀjAiÀÄ®è."
44. On going through the above said testimony of PW.1, he deposed, he does not know, where, when, how much extent and from whom, the accused purchased the property. Even, he deposes, he does not know that, whether accused was purchased any land or not. The accused by way of suggestion had taken up specific stand that, he had no intents to purchase any property, as alleged by the complainant, hence, he was no need of Rs.30 lakhs and not paid, as alleged by the complainant. Therefore, the said evidence of PW.1 also discloses, without knowing the genuineness of the reason or if at all, he paid any loan as such, he must know, whether the accused was invested for particular purpose. As said, the accused was short fall of Rs.30 lakhs to Judgment 32 C.C.No.18139/2018 purchase property, hence, he paid. If at all, the accused purchased the property by made use of his money, definitely, it is the complainant must known the said fact and in that regard, no contention taken by him, as to the accused had purchased any other property, subsequent to the alleged borrowal of loan. Hence, it made clear that, the complainant utterly failed to prove that, accused was in need of Rs.30 lakhs to purchase the property. In that ground also the complainant utterly failed prove his case.
45. On going through the rival contentions of the parties, the fact remains undisputed that, the accused through his bank cheque got paid sum of Rs.25 lakhs to the account of complainant in the month of September, 2012. The complainant in the complaint as well as his legal notice and affidavit evidence, he stated earlier the accused was borrowed loan of Rs.25 lakhs in the year 2012 and by virtue of issue cheque, the accused got cleared the said money in the year 2012 itself. In that acquaintance only he came forward to pay the loan of Rs.30 lakhs, that too, during the 1st week of October, 2017. Whereas, the accused in the reply notice at Ex.P10 as well as subsequent to complainant got issued legal notice at Ex.P7 to the accused, the accused lodged a complaint before Kaggalipura Police Station as Judgment 33 C.C.No.18139/2018 per Exp13, he alleged that, in the year 2012, he got paid loan of Rs.25 lakhs to the complainant and he not returned the said money till the day and when he did carpenter work of accused house, he took away the questioned cheques and got misused and present them for encashment. From the contention of the accused, if at all, he paid the loan of Rs.25 lakhs to the complainant, it is him to recover the same within the time specified under the relevant of provisions of Limitation Act. If at all, he lent loan of Rs.25 lakhs in the year 2012 to the complainant, over the period of 7 years against provisions of Limitation Act, he kept await the said money from the complainant is not been satisfactorily explained by the accused. However, it is his risk, he kept await for recover loan amount as per law, but all these days, he kept quite.
46. But the complainant has stated that, the said amount paid by the accused, is nothing repayment of the loan of Rs.25 lakhs which obtained by the accused in the year 2012. No prudent man can lend the huge amount of Rs.25 lakhs without securing any document. Any how, the said factum is not a subject matter of present case, but it is one of the circumstances to make believe that, if at all, complainant lent the alleged loan by way of cash of Rs.25 lakhs in the year 2012, though as per his say, if taken in to Judgment 34 C.C.No.18139/2018 consideration, it was repaid by the accused by way of cash, then once again, in the month of October, 2017, alleged loan paid him by way of cash to the accused is also not shown any prudence in the act of complainant. The complainant has contended that, without obtaining any security document, without maintaining any necessary account, though admittedly, he had no theory found as such, took the risk at his own cost, by way of mobilizing alleged fund from his brother and sister and made it as Rs.30 lakhs and paid to the accused by way of cash on 16.10.2017 itself is not been satisfactorily explained by the complainant.
47. If at all, the complainant by arranging fund as such, definitely, it is him to explain, on which guarantee, on which benefit, he paid the said huge amount against the provisions under Section 69 of SS of Income Tax, is not been satisfactorily explained. The very project of loan made mentioned in the complaint, is not been satisfactorily explained by the complainant. Though, he stated, he mobilized fund of Rs.10 lakhs, out of his agricultural business as well as day to day business, he utterly failed to prove the said money was with him in order to add the said amount obtained from his brother and sister and mobilized the amount of Rs.30 lakhs. Rs.30 lakhs is not a smaller amount, no prudent man used to come forward to pay the said huge month Judgment 35 C.C.No.18139/2018 without any benefit or security document. If at all, the accused was need to purchase any property, so many financial institutions are in competition to come forward to disburse the loan in terms of law. By ignoring the same, accused approached the complainant and obtained the alleged loan itself is not been satisfactorily explained by the complainant.
48. Though, in the complaint he contended, earlier loan transaction at Rs.25 lakhs between complainant and accused in the year 2012, but in his cross-examination he deposed that:
"DgÉÆæAiÉÆA¢UÉ zÀÆj£À ªÀåªÀºÁgÀzÀ «£ÀB ªÉÆzÀ®Ä ¨ÉÃgÉ ªÀåªÀºÁgÀ EgÀ°®è. DgÉÆæUÉ «±Áé¸ÀzÀ ªÉÄÃ¯É §rØ gÀ»vÀªÁV gÀÆ.30 ®PÀë ¸Á® ¤ÃrzÉÝ£ÀÄ. £Á£ÀÄ §rØ ªÀåªÀºÁgÀ ªÀiÁqÀÄvÉÛãÉAzÀgÉ ¸ÀjAiÀÄ®è. gÀÆ.20 ¸Á«gÀ ªÉÄîàlÖ ºÀtªÀ£ÀÄß ZÉPï CxÀªÁ rr ªÀÄÄSÁAvÀgÀ PÉÆqÀ¨ÉÃPÉA§ «µÀAiÀÄ £À£ÀUÉ UÉÆvÀÄÛ DzÀgÉ «±Áé¸À¢AzÀ DgÉÆæUÉ £ÀUÀzÁV PÉÆnÖzÉÝ£ÀÄ."
49. On meticulous perusal of the said testimony of PW.1, if at all, as he alleged in the complaint lent the loan of Rs.25 lakhs, he must remember. But in the above piece of testimony of PW.1, he deposes earlier to the complaint loan transaction, there were no transaction between complainant and accused. The PW.1 has deposed that, earlier there were no transaction between Judgment 36 C.C.No.18139/2018 complainant and accused. If at all, it was the loan transaction of Rs.30 lakhs, definitely, he could have state, whatever he urged in the pleading. In the further cross of cross-examination, he reasserted, the accused borrowed the earlier loan of Rs.25 lakhs and it was repaid by the accused, as found in the bank statement of the accused at Ex.D1. However, in the 1st stretch of his evidence, he must remember, whether there was any earlier loan transaction between complainant and accused or not, in view of the accused seriously attack on the claim of complainant stating, complainant not lent the loan, but it was accused lent the loan to he complainant by way of cheque for the tune of Rs.25 lakhs and same is unreturned. Hence, it is the complainant should be deligent in depose, but he deposed in confusion state of mind on the one stretch he stated, there was no earlier loan transaction, later he deposes, on showing the Ex.D1 it was earlier loan transaction. Therefore, the very conduct of complainant in deposes as such, it is created doubt. It is not his case that, he does not know about Section 69 of SS of Income Tax Act, as to payment has to be make through demand draft of cheque, if amount involves Rs.20,000/- or more. But he specifically stated that, he knew the said provision, though he un-trust gave the said money to the accused in cash it discloses that, the complainant on Judgment 37 C.C.No.18139/2018 his own risk did the alleged transaction, but failed to demonstrate the alleged payment of loan of Rs.30 lakhs to the accused. As appreciated above the accused has successfully extracted the favourable evidence from the mouth of PW.1 by eliciting contra evidence to his own pleading as well as substantial transaction. Thereby, he is capable to rebut the statutory presumption as well as case put forth by the complainant.
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 -
Judgment 38 C.C.No.18139/2018 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 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".
50. 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. As per the said dictum, as well as by virtue of Section 139 of Negotiable Instruments Act, though it was reverse burden on the complainant to prove the alleged loan transaction as well as got Judgment 39 C.C.No.18139/2018 issuance of questioned cheques. But he failed to demonstrate the same for the detailed discussion made supra. Mere because of questioned cheques possessed by the complainant through the unexplained source, it does not mean that, it was executed and issued by the accused for discharge of existence of legally recoverable debt.
51. On going through the Exs.P1 and P2 cheques it discloses, the signatures of the accused found in Kannada language and other writings are made in English language. Even, the word 15 in both the cheques are seems to be over written, todo so, there was no counter signature is been obtained by the complainant from the accused. It is the complainant has to demonstrate, who got executed and issued the questioned cheques. The amount made mentioned in the cheques in letter appears to be material alteration, though, no signature is obtained from the accused to authenticate the said correction, in not doing so, no explanation is forth coming from the side of complainant. It at all, the accused himself got issued questioned cheque, he was educated, definitely, directly could have been got filled and executed by the accused, but no such effort is made by the complainant. That apart, both the cheques are dated:31.03.2018. If at all, the accused was intends to pay the said money on the same day, no Judgment 40 C.C.No.18139/2018 need to issue separate cheques, as there is no limit for those cheques. Hence, could have been issue single cheque inspite of 2 cheques. Therefore, it is also one of the circumstances to disbelieve the very contention of the complainant. Even, the complainant has utterly failed to demonstrate that, the questioned cheques were issued by the accused. In his cross-examination, he deposed that:
"DgÉÆæ ¤¦-1 ªÀÄvÀÄÛ 2 gÀ ZÉPÀÄÌUÀ¼À£ÀÄß ªÀiÁZïð-2018 gÀ 2£Éà ªÁgÀzÀ°è ¢£ÁAPÀ:31.03.2018gÀ ¢£ÁAPÀ £ÀªÀÄÆ¢¹ JgÀqÀÄ ZÉPÀÄÌUÀ¼À£ÀÄß PÉÆnÖzÀÝgÀÄ. ¸ÀzÀj ZÉPÀÄÌUÀ¼À£ÀÄß DgÉÆæAiÀÄ ªÀÄ£ÉAiÀįÉèà £À£ÀUÉ PÉÆnÖzÀÝgÀÄ. CzÀÄ AiÀiÁªÀ ¢£À JAzÀÄ ºÉüÀ®Ä ¸ÁzÀså«®è. ¤¦.1 ªÀÄvÀÄÛ 2gÀ ZÉPÀÄÌUÀ¼À£ÀÄß DgÉÆæAiÀÄ ªÀÄUÀ¼ÀÄ CªÀgÀ ªÀÄ£ÉAiÀįÉèà §gÉ¢zÁÝgÉ. DPÉAiÀÄ ºÉ¸ÀgÀÄ UÉÆwÛ®è. D ZÉPÀÄÌUÀ¼À£ÀÄß £Á£Éà ¨Àswð ªÀiÁrzÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è. ¤¦.1 ªÀÄvÀÄÛ 2 gÀ ZÉPÀÄÌUÀ¼À°ègÀĪÀ ¸À» ªÀÄvÀÄÛ ¨Àswð ªÀiÁrzÀ §gÀºÀ DgÀÉÆæAiÀÄzÀ¯Áè JAzÀgÉ ¸ÀjAiÀÄ®è."
52. The PW.1 has deposed that, questioned cheques were issued by the accused during the 2nd week of March, 2018. He deposed that, those cheques were issued by mentioned the dates. Even, he deposed, those cheques were not brought by the accused to the place of complainant and handed over, but complainant has deposed, he himself came to the house of accused, wherein, he gave the questioned cheques to him and Judgment 41 C.C.No.18139/2018 not able to depose, when they were issued. He clearly stated that, one of the daughter was written the said cheques and he does not remember her name. There was serious allegation made against the complainant that, questioned cheques were filled by the complainant himself and accused not filled the same. The difference of hand writing can be seen to the bare eyes, as it discloses, different hand writing. From which, it can make out that, accused was not filled the same. If, it was filled by the daughter of the accused, definitely, he has to state, who is she, definitely, in that regard, no explanation is forth coming from his side. Therefore, the complainant has utterly failed to prove the due execution and issuance of questioned cheques, in his favour.
53. No doubt, complainant has produced his bank statement at Ex.P11, which discloses Rs.25 lakhs paid by the accused to the account of the complainant on 25.07.2012. The said fact is not in dispute. The complaint copy produced by the complainant herein, lodged by the accused at Exs.P13 and P14, it discloses, the accused had not initiated any action for recover Rs.25 lakhs alleged to be paid by him to the complainant and wherein, discloses, stolen of cheques of the accused by the complainant. The said factum discloses that, the accused came to know about the possession of cheques on him by the complainant; hence, he Judgment 42 C.C.No.18139/2018 lodged complaint at Exs.P13 and P14. The Ex.P15 - complaint given by the very complainant herein has stated that, earlier he lent Rs.25 lakhs, it was repaid by the accused and subsequent loan of Rs.30 lakhs not repaid and questioned cheques given by him were came to be bounced, hence, he went to the house of accused asked for the repayment, then accused made galata with him and hence, lodged complaint. The Ex.P16 is the acknowledgment given by the police.
54. On going through all the instance narrated by the complainant in his cross-examination, it is significant fact to note that, if at all, the accused were need of money, it was him to approach the complainant and borrow the loan. In the case on hand, the PW.1 has deposed that, accused never came to his house, but all the circumstances he narrated discloses, either for request the loan or for alleged lent of loan, or for issued the questioned cheques nor when he asked for repayment of the loan, as found in Ex.P15 allegations, it was the complainant only went to the house of accused and no movement came to the accused to approach the complainant at his house for all the above movement. Itself discloses that, the complainant is very much interested to contact the accused in his house and did all. The Judgment 43 C.C.No.18139/2018 said circumstances, also created doubt, as to the genuineness of the claim put forth by the complainant.
55. The complainant has contended that, on 16.10.2017 he lent loan. On going through the bank statement of the complainant at Ex.P21, it discloses that, in the month of October, 2017, he was the balance of Rs.3,704/- in his account. Under such circumstances, how he mobilized fund of Rs.10 lakhs itself created doubt, as to the financial capacity of the complainant.
It is well worthy to cite the decision reported in AIR 2011 (NOC) 75 (KAR) (Amzad PashaV/s. H.N.Lakshmana). Wherein, it was pleased to held by the Hon'ble Apex court that:
(B) Negotiable Instruments Act (26 of 1881). S. 138
- Dishonour of cheque - Accused alleged to have taken loan from complainant - Complainant has not placed any evidence to show that he had financial capacity to lend substantial amount of Rs.4,50,000/- - Admittedly no document evidencing the loan transaction has come into existence - Case of complainant that he had lent Rs.4,50,000/- to the respondent is highly impossible and not acceptable - None of witnesses in presence of whom loan amount was paid by complainant examined by complaint -
Adverse inference can be drawn against complainant - Accused liable to be acquitted".
Judgment 44 C.C.No.18139/2018 In the decision reported in Criminal Appeal No.2402 of 2014, between K.Subramani V/s K.Damodara Naidu, the Hon'ble Apex court held that:
"The Hon'ble Apex Court confirmed the Judgment of Trial Court acquitting the accused on the ground of capacity to pay the amount of cheque. In the above said ruling the Trial Court acquitted the accused on the ground that the complainant had no source of income to lend sum of Rs.14,00,000/-. In the appeal the 1st Appellate Court set aside the order and remanded the matter to the Trial Court to give an opportunity to complainant to prove the same. The accused went in appeal before the Hon'ble Apex Court and the Hon'ble Apex Court has set aside the order of the 1st Appellate Court and upheld the acquittal order passed by the Trial Court".
56. In the case on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show his financial capacity to lend an amount of Rs.30 lakhs to accused. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheques for discharge of Rs.30 lakhs does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheques for discharge of liability of Rs.30 lakhs. Hence, complainant has Judgment 45 C.C.No.18139/2018 failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
57. As discussed above, looking in to the rival contentions as well as oral and documentary evidence placed by both the parties, it is the consider opinion of this court that, complainant has utterly failed to prove his financial capacity to arrange the fund of Rs.30 lakhs and paid to the accused on 16.10.2017. Likewise, the accused executed and issued the questioned cheques to the complainant itself created doubt, as no satisfactory evidence is placed from the mouth of PW.1. The accused has successfully rebutted the statutory presumption as well as matter of fact of existence of legally recoverable debt payable by the accused as contended by the complainant. Therefore, the benefit of doubt has to be given to the accused.
58. The accused has successfully discharged the initial onus of proof showing that, the existence of consideration was improbable or doubtful as well as the same is illegal. Therefore, the onus shift on the complainant, who has to prove the transaction, as a mater of fact, but he failed to prove that, the amount covered under the cheques is the existence of legally recoverable debt. Hence, the accused is entitled for benefit of doubt for acquittal.
Judgment 46 C.C.No.18139/2018
59. 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.
It is relevant to cite the decisions of the Hon'ble Supreme Court in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s. Dattatraya G Hegde) and 2010 AIR SCW 2946 (Rangappa V/s. Mohan).
"The accused need not enter into witness box and he could rebut the presumption envisage under Section 139 of Negotiable Instruments Act by setting up a probable case. As such, there is no strict rule that, the accused should enter into the witness box in support or proof of his defence. The accused has got every right to prove his defence from the cross- examination of PW.1 or the materials already brought on record. It is also held that, the standard of evidence be to led by the accused is preponderance of probabilities and no proof beyond reasonable doubt. On the contrary, for the complainant he should prove his case beyond all reasonable doubt".
Judgment 47 C.C.No.18139/2018
60. As per the said dictum, the accused need not require to enter into the witness box, but he can prove his probable defence by way of cross-examining the PW.1 or the documents of the complainant. Accordingly, apart from cross-examining the PW.1, the accused got marked Ex.D1 through PW.1 and placed his probable defence. Hence, non entering into the witness box by the accused no way disturb the probable defence of the accused.
61. In the instant case, as appreciated above, it clearly manifested that, without any obligation from the side of the accused, as well as without narrating proper grounds, as to how, accused is liable to pay amount covered under the cheques alleged to be issued by the accused is also not demonstrated by the complainant satisfactorily. On the contrary, it can presume that, the said cheques were possessed by the complainant from the unexplainable source, and falsely projected the case and failed to prove the same. Hence, there is no question of drawing presumption under Section 118(a) or 139 of the Negotiable Instruments Act.
At this stage, this court also relies upon the decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s.
Judgment 48 C.C.No.18139/2018 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 rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
62. 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.30 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:
Judgment 49 C.C.No.18139/2018 "Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
63. 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 Exs.P1 and P2 cheques 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 that, the accused has borrowed the cheques 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 cheques 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 cheques 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.
Judgment 50 C.C.No.18139/2018
64. 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 cheques Exs.P1 and P2 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Sections 139 and 118 of Negotiable Instruments Act in favour of the accused.
65. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheques 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, cheques in question were 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.
66. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the Judgment 51 C.C.No.18139/2018 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 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 and 2 are Negative.
67. Point No.3: In view of my findings on point Nos.1 and 2, 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.
Judgment 52 C.C.No.18139/2018 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 5th day of March - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : L.R.Lakshmipathi PW.2 : Chethan Shetty PW.3 : Madaiah PW.4 : R.Srinivas
List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques Exs.P1(a) & P2(a) : Signatures of accused Exs.P3 & P4 : Bank challan counter foils Exs.P5 & P6 : Bank endorsements Ex.P7 : Office copy of legal notice Ex.P8 : Postal receipt Ex.P9 : Postal Acknowledgment card Ex.P10 : Reply notice dtd:19.05.2018 Ex.P11 : Statement of account Ex.P12 : MR Extract Ex.P13 : Tue copy of complaint dtd:14.05.2018 Ex.P14 : True copy of Acknowledgment Ex.P15 : True copy of complaint dtd:25.05.2018 Ex.P16 : Acknowledgment Ex.P17 : Legal notice dtd:14.06.2018 Ex.P18 : Reply notice dtd:30.06.2018 Ex.P19 : Postal receipt Ex.P20 : Private complaint Ex.P20(a) : Signature of complainant Ex.P21 : Transactions Inquiry Judgment 53 C.C.No.18139/2018 Ex.P22 : Copy of account opening form Ex.P22(a) & P22(b) : Signatures of accused Ex.P23 : Copy of Pan Card Ex.P24 : Copy of voters ID card Ex.P25 : Copy of Pan Card Exs.P26 & P27 : Copies of bank documents Exs.P28 & P29 : Copies of Annexures-2 and 1 Ex.P30 : Copy of rejection memo Ex.P31 : Copy of bank account opening form Ex.P32 : Statement of account
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
Ex.D1 : Statement of account
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 54 C.C.No.18139/2018
Judgment 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.