Bangalore District Court
Smt.Santosh Jain vs Sri.Chinmay Hegde on 3 November, 2022
1
C.C.No.33198/2018
KABC030912212018
Presented on : 15-12-2018
Registered on : 15-12-2018
Decided on : 03-11-2022
Duration : 3 years, 10 months,
19 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 03rd day of November 2022.
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.No
: C.C.No.33198/2018
Complainant : Smt.Santosh Jain,
W/o.Late Kishore Kumar,
Aged 51 years,
Residing at No.11, AM Street,
Kalasipalyam,
Bengaluru.
(By Sri.Prasanna Kumar,
Adv,)
V/s
Accused : Sri.Chinmay Hegde,
S/o.Triyambaka Ganesh Hegde,
Aged about 38 years,
Residing at No.101, 8th Main,
11th Cross, Malleshwaram,
Bengaluru-560 003.
(Rep. by Sri.Naveen Kumar
P., Adv.)
2
C.C.No.33198/2018
Case instituted : 06.01.2018
Offence complained of : U/s 138 of N.I Act
Plea of Accused : Pleaded not guilty
Final Order : Accused is Acquitted
Date of order : 03-11-2022
JUDGMENT
The Complainant had filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the Complainant is as under:-
The complainant and her two daughters are the owners of properties bearing vacant site No.83, 86, 142 and 143 situated at Mylanahalli, Kasaba Hobli, Nelamangala taluk, Rural District. The accused had approached the complainant in the year 2016 requesting to sell the said properties in his favour. The complainant was reluctant to sell the said properties. But owing to the persistence of the accused, the complainant had agreed to execute the sale deed in respect of said properties in favour of the accused. The complainant and her two daugthers have executed four registered sale deeds dated 19.03.2016 in respect of said four 3 C.C.No.33198/2018 properteis. But, at the time of registration of sale deeds, the accsued has expressed his inability to pay the entire sale consideration amount and requested the complaiannt that the sale deed may be executed and he would make the payment at the earliest point of time on or before 30.06.2017. Therefore, reposing faith on the accused, the complainant has agreed to the request of the accused and got the sale deeds registered on 19.03.2016.
3. It is further averred in the complaint that after registration of sale deeds, the accused has voluntarily came forward and executed the Memorandum of understanding dated 01.06.2017 stating that he has not paid sale consideration in respect of purchased property and agreed to repay the said amount on or before 30.06.2017 with interest @ 14% per annum. The accused had issued a post dated cheque bearing No.409061 dated 01.07.2017 for Rs.43,50,000/- drawn on Deutsche Bank as security.
4. It is further averred in the complaint that the complainant has presented the cheque before the Federal Bank, Bengaluru on 26.09.2017 for encashment. But the said cheque was came to be dishonoured with an endorsement as "Account Closed".
4C.C.No.33198/2018 vide dated 26.09.2017. Therefore, the complainant got issued a legal notice dated 17.10.2017 calling upon the accused to pay the cheque amount of Rs.43,50,000/- within 15 days from the date of receipt of legal notice. The notice was served on the accused. But in spite of service of legal notice, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act. Hence, the complainant has presented the complaint before the Court on 06.01.2018 with delay of 32 days along with application U/s.142 of N.I.Act to condone the delay of 32 days.
5. After presentation of complaint, it was ordered to be registered as PCR No.382/2018 and notice on application U/s.142 of N.I.Act was ordered to be issued vide order 11.01.2018.
6. But in spite of service of notice on application, the accused did not turned up before the Court and remained absent.
7. The complainant got examined herself as CW- 1 by filing affidavit. My Learned Predecessor in office having satisfied with the affidavit of complainant has allowed an application by condoning the delay of 32 days in filing the complaint vide order dated 06.08.2018 5 C.C.No.33198/2018 and posted the case for sworn statement of the complainant.
8. The sworn statement of the complainant has been recorded and the documents were marked as Ex.P.1 to P.12.
9. My learned predecessor in office having heard the arguments of learned counsel for the complainant and having satisfied with the complaint averments, sworn statement of complainant and documents at Ex.P.1 to P.12 and having satisfied with prima facie materials placed on record, has taken the cognizance for the offence punishable U/s.138 of N.I.Act and the case was ordered to be registered in CC.No.33198/2018 vide order dated 22.11.2018 and process was ordered to be issued against the accused.
10. On service of summons, the accused has appeared before the court through his learned counsel and obtained the bail vide order dated 20.06.2019 by furnishing surety. The copies of the prosecution papers were supplied to the accused.
11. Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded and the substance of accusation has been read over and explained to the 6 C.C.No.33198/2018 accused in the language known to him. The accused has pleaded not guilty, but claims to be tried.
12. In order to prove the guilt against the accused, the complainant got herself examined as PW-1 and got the documents marked as Ex.P.1 to P.12.
13. The statement of accused as contemplated under the provisions of Section.313 of Cr.P.C. is recorded and the incriminating evidence as such forthcoming against the accsued in the evidence of complainant and documents has been read over and explained to the accused in the language known to him. But the accused has denied the evidence of complainant and documents. The accused did choose to enter the defence evidence.
14. In order to prove his defence, the accused got himself examined as DW-1 and got the documents marked as Ex.D.1 to D.6.
15. I have heard the arguments of learned counsels for both sides. The learned counsel for the accused has also filed notes of arguments. The learned counsle for both sides filed memo along with the citations. In the light of the arguments canvassed by the learned counsel for both sides, I have carefully perused 7 C.C.No.33198/2018 the oral and documentary evidence placed on record and also gone through the principles laid down in the decisions cited on behalf of both the sides.
16. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued a cheque bearing No.409061 dated 01.07.2017 for Rs.43,50,000/- drawn on Deutsche Bank in her favour towards the legally recoverable debt of Rs.43,50,000/- due under the sale deeds and on presentation of cheque for encashment before Federal Bank on 26.09.2017, it was came to be dishonoured with endorsement as "Account Closed" vide bank endorsement dated 26.09.2017 and in spite of issuance of legal notice dated 17.10.2017 and in spite of service of legal notice, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act?
2. What Order?
17. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under :
Point No.1: In the Negative.
Point No.2: As per final order for the following :-
REASONS 8 C.C.No.33198/2018
18. Point No.1 : The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transfered, was accepted, indorsed, negotiated or transferred for considertaion: (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accpted within a reasonable time after its date and before its maturity. (d) as to time of transfer-that every transfer of a negotiable instrument was made before the maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course.
19. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this 9 C.C.No.33198/2018 provisions of law, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or inpart, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other proviosn of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
20. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing , to the drawer of the cheque, within thirty days of the receipt of information by him 10 C.C.No.33198/2018 from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
[ 21. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.
22. It is averred in the complaint and stated by PW-1 in her oral evidence that she and her two daughters are the owners of properties bearing vacant sites No. 83, 86, 141 and 142 situated at Mylanahalli village, Kasaba Hobli, Nelamangala Taluk of Bengaluru Rural District and the accused had approached her in the year 2016 and requested to her to sell the properties in his favour. It is further averred in the complaint and stated by PW-1 in her oral evidence that she has agreed to execute the sale deed and accordingly she and her two daughters have executed 4 sale deeds dated 11 C.C.No.33198/2018 19.03.2016 in respect of said four properties. But, at the time of registration of sale deeds, the accused has expressed his inability to pay the entire sale consideration and requested her that the sale deeds may be executed and he would make the payment on or before 30.06.2017.
23. It is further averred in the complaint and stated by PW-1 in her oral evidence that after the registration of sale deeds, the accused had voluntarily come forward and executed a memorandum of understanding dated 01.06.2017 stating that he has not paid sale consideration and he would repay the amount on or before 30.06.2017 with interest @ 14% per annum and issued a post dated cheque bearing No.409061 dated 01.07.2017 for Rs.43,50,000/- drawn on Deutsche Bank as security.
24. It is further averred in the complaint and stated by PW-1 in her oral evidence that she had given time for payment of the consideration amount, but the accused did not make any payment towards the sale consideration till the end of June 2017 and therefore, she has presented the cheque before the Federal Bank on 26.09.2017 which was came to be returned with an endorsement as "Account Closed" vide endorsement 12 C.C.No.33198/2018 dated 26.09.2017 and therefore, she got issued a legal notice dated 17.10.2017 calling upon the accused to pay the cheque amount of Rs.43,50,000/- within 15 days from the date of receipt of legal notice which has been served on the accused, but in spite of service of legal notice, the accused has failed to pay the cheque amount and therefore, she has presented complaint before the Court.
25. The complainant has produced the cheque dated 01.07.2017, bank endorsement dated 26.9.2017, legal notice dated 17.10.2017, certified copies of four sale deeds dated 19.03.2016, Memorandum of Understanding dated 01.07.2017, track complaint status and postal delivery slip and they are marked at Ex.P.1 to P.12.
26. DW-1 has stated in his evidence that one Bhaskar L.M., resident of Jayanagar, Bengaluru introduced him with complainant in the month of January 2016 who was the owner of site bearing Nos.83, 86, 141 and 142 of Mylanahalli of Bengaluru Rural District and who wants to sell the said properties and therefore, he has purchased said properties under the registered sale deeds dated 19.03.2016 by paying full sale consideration to the complainant and her daughters 13 C.C.No.33198/2018 and he is not due for any amount either to complainant or to her two daughters.
27. It is also the evidence of DW-1 that there was a money transaction between complainant and Bhaskar L.M. and in this regard some disputes were arisen between them and therefore, the complainant has lodged a complaint against Bhaskar L.M. on 12.05.2017 on the allegation of cheating and on the basis of the said complaint, the Kalasipalya police have registered the Crime No.97/2017 and since he is the friend of Bhaskar L.M, the complainant with the help of Kalasipalya police have threatened and compelled to him to pay the amount and threatened to file criminal case against him and they took him to High Court on an Autorickshaw and got typed the stamp paper before Notary and obtained his signature without reading and obtained the cheque by force and also under threat and therefore, he has lodged a complaint before the Karnataka State Human Rights Commission on 10.08.2017 through e- mail.
28. It is also the evidence of D.W.1 that the complainant has not issued any notice to him and the notice has not been served as he was not residing at Malleshwaram address and he came to know about the 14 C.C.No.33198/2018 case only when the complainant has visited his house along with police.
29. The accused has produced the certified copies of Agreement, complaint in CC.No.28751/2018, sworn statement in PCR 8978/2017 and they were confronted to PW-1 and marked as per Ex.D.1 to D.3 through the evidence of PW-1. The accused has also produced e-mail complaint, Certificate U/s.65-B of Indian Evidence Act and later dated 18.08.2017 by Registrar of Karnataka State Human Rights Commission to Deputy Police Commissioner, West Division, Upparpete, Bengaluru and they are marked at Ex.D.4 to D.6 through D.W.1.
30. So, it is crystal clear that the accused has not only denied the existence of legally recoverable debt of Rs.43,50,000/-, but also denied the issuance of cheque in question to the complainant towards the legally recoverable debt including dishonour of cheque for want of sufficient funds in his account, issuance of legal notice and its service.
31. Under these circumstances, initial burden lies on the complainant to prove that the accused was due for Rs.43,50,000/- towards the sale consideration and the accused has issued a cheque in question towards 15 C.C.No.33198/2018 the legally recoverable debt of Rs.43,50,000/-, dishonour of cheque for want of sufficient funds in the account of the accused or exceeding the arrangement, issuance of legal notice and its service and failure on the part of the accused to pay the cheque amount even after service of legal notice.
32. The learned counsel for the complainant has argued with force that the complainant has fulfilled all the mandates of Section 138 of N.I.Act by adducing oral evidence of PW-1 and by producing documentary evidence at Ex.P.1 to P.12 which clearly establishes that since the accused has not paid sale consideration at the time of registration of sale deed, he has executed Memorandum of Understanding as per Ex.P.9 and issued the cheque in question vide Ex.P.1 for sale consideration of Rs.43,50,000/- and on the presentation of cheque for encashment, it was came to be dishonoured as per bank endorsements vide Ex.P.2 and P.3 and the complainant has issued a legal notice vide Ex.P.4 which has been served on the accused as per Ex.P.11 and P.12 and therefore, the presumption is available in favour of the complainant U/s.118 and 139 of N.I.Act.
16C.C.No.33198/2018
33. It is further contended that the accused has not disputed cheque and also his signature on the cheque including signature on Memorandum of Understanding vide Ex.P.1 and P.9 and therefore, the presumption is in favour of the complainant U/s.118 and 139 of N.I.Act, but the accused has taken a defence that he has already paid sale consideration amount at the time of registration of sale deeds and there was a transaction between complainant and Bhaskar L.M. who is the friend of accused and the complainant has forcibly obtained the cheque in question and also obtained the signature on Memorandum of Understanding with the help of Kalasipalya Police and therefore, he has lodged a complaint before the Karnataka State Human Rights Commission, but the accused has failed to prove the probable defence before the Court.
34. It is further contended that the oral evidence of DW-1 and documents at Ex.D.1 to D.6 do not establish the probable defence taken by the accused, but on the other hand, the oral evidence of PW-1 and documentary evidence at Ex.P.1 to P.12 clearly establishes the compliance of Section 138 of N.I.Act and guilt against the accused and therefore, the accused is liable for conviction U/s.138 of N.I.Act.
17C.C.No.33198/2018
35. In support of his submission, the learned counsel for the complainant has relied upon a decision reported in 2022 SCC on-line SC 1131 in between P.Rasiya Vs.Abdul Nazeer and another, wherein while dealing with the provisions of Section 138 of N.I.Act, the Hon'ble Supreme Court has pleased to held that once initial burden is discharged by the complainant that the cheque was issued by the accused and the signature and the issuance of cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption U/s.139 of the N.I.Act is the statutory presumption and once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the complainant/holder of the cheque, in that case, it is for the accused to prove the contrary. On the same principles, the learned counsel for the complainant has also relied upon a decision reported in (2015) 8 SCC 378 in between T.Vasanthkumar Vs.Vijayakumari.
36. The learned counsel for the complainant has also relied upon a decision rendered by the Hon'ble High Court of Bombay Bench at Aurangabad in Crl. W.P.No.1715/2018 in between Nand Kishore 18 C.C.No.33198/2018 Shamkant Sonar Vs.Sou.Malathi Divakar Kulkarni, wherein while dealing with the provisions of Section 138 of N.I.Act and Section 27 of the General Clauses Act, the Hon'ble HIgh Court of Bombay has pleased to held that when the notice is sent by registered post and is returned with a postal endorsement "Refused" or "Not available in the House" or "House Locked", or "Shop Closed" or Addressee is not in Station", it has to be presumed U/s.27 of the General Clauses Act that it was a due service.
37. Per contra, the learned counsel for the accused has vehemently contended that the oral evidence of PW-1 and the documentary evidence at Ex.P.1 to P.12 do not establish the guilt against the accused and do not establish the compliance of U/s.138 of N.I.Act and therefore, question of drawing presumption in favour of the complainant U/s.118 and 139 of N.I.Act does not arise. The accused has already paid sale consideration under Ex.P.5 to P.8 and the complainant has received the entire sale consideration at the time of registration of sale deed and there is also a reference in this regard in the sale deed which has got presumptive value. The complainant has failed to prove the existence of legally recoverable debt and therefore, 19 C.C.No.33198/2018 question of issuance of cheques towards the legally recoverable debt does not arise.
38. It is further contended that there was a transaction between complainant and Bhaskar L.M. and in this regard there was a dispute between them and therefore, the complainant has lodged a complaint against him and since the accused was the friend of said Bhaskar L.M., the complainant has lodged a complaint before Kalasipalya Police station and the complainant forcibly obtained the cheque in question from the accused with the help of police and also obtained the signature under threat on the Memorandum of Agreement and the cheque was not issued for legally recoverable debt and notice also not been served on the accused.
39. It is further contended that the oral evidence of DW-1 coupled with the documentary evidence at Ex.D.1 to D.6 clearly establishes that the accused has already paid sale consideration to the complainant at the time of execution of sale deeds and registration of sale deeds and there was no due on the part of the accused, but the complainant has obtained the cheque in question forcibly with the help of police and therefore, the accused has lodged a complaint before the 20 C.C.No.33198/2018 Karnataka State Human Rights Commission through e- mail and thereby the accused has raised a probable defence and also proved the same before the Court by adducing oral evidence of PW-1 and by producing documents at Ex.D.1 to D.6 and also by eliciting the material facts in the evidence of PW-1 and thereby the accused has rebutted the presumption available in favour of the complainant under the provisions of Section 118 and 139 of N.I.Act and hence, the accused is entitled to an order of acquittal.
40. In support of his submission, the learned counsel for the accused has relied upon a Judgment rendered by Hon'ble High Court of Karnataka in Crl. Appeal No.408/2017 in between Sri.Billavar Vs.Smt.B.Sathyavathi, wherein while dealing with the provisions of Section 138 of N.I.Act, the Hon'ble High Court of Karnataka has pleased to held that it is trite law that accused is not required to prove the defence with the standard of absolute proof. It is suffices the purpose, if the circumstances brought out in the evidence are sufficient to rebut the case of the complainant.
41. Now keeping the arguments canvassed by the learned counsel for both the sides and the provisions of 21 C.C.No.33198/2018 Section 118, 138 and 139 of N.I.Act and the principles laid down in the decisions cited on behalf of both the sides, let us consider as to whether the complainant could able to fulfill the mandates of Section 138 of N.I.Act so as to raise a presumption in her favour as contemplated under the provisions of Section 118 and 139 of N.I.Act and whether there was any existence of legally recoverable debt from the accused.
42. According to complaint and the oral evidence of PW-1, the accused has purchased the properties bearing site No.83, 86, 141 and 142 situated at Mylanahalli Kasaba Hobli, Nelamangala Taluk, Bengaluru Rural District for Rs.43,50,000/- under the registered sale deed dated 19.03.2016, but the accused at the time of registration of sale deeds, has expressed his inability to pay the sale consideration and undertake to make the payment at the earliest point of time on or before 30.06.2017 and therefore, he has executed memorandum of understanding dated 01.06.2017 agreeing to repay the said sale consideration on or before 30.6.2017 with interest @ 14% per annum and in this regard he has issued a cheque dated 01.07.2017 for Rs.43,50,000/- as security purpose and on presentation of cheque, it was came to be dishonoured as Account Closed vide bank endorsement and in spite of service of 22 C.C.No.33198/2018 legal notice, the accused has failed to pay the cheque amount.
43. But, the complaint averments and oral evidence of PW-1 is highly contrary to the documents at Ex.P.1 to P.12 in respect of existence of legally recoverable debt. Because, as could be seen from the sale deeds vide Ex.P.5 to P.8, the complainant and her two daughters have sold the properties to the accused for Rs.32,40,000/-. There is a recital in the sale deeds vide Ex.P.5 to P.8 that the complainant and her two daughters have received sale consideration of Rs.32,40,000/- by way of cash.
44. No doubt, the complainant has produced the memorandum of understanding and it is marked at Ex.P.9. According to complainant that the accused has executed a document at Ex.P.9 undertaking to pay the sale consideration of Rs.43,50,000/-. But it is pertinent to note here that the document at Ex.P.9 is an unregistered document. Whereas the document at Ex.P.5 to P.8 are the registered documents. Therefore, more probative value is attached to the document at Ex.P.5 to P.8 than that of the document at Ex.P.9. Because, it is well settled position of law that 23 C.C.No.33198/2018 registration confirms the genuineness, authenticity and validity of any document which has undergone the ordeal of the procedure prescribed under the provisions of Indian Registration Act, 1908. It is also well settled position of law that it is always documentary evidence prevails over the oral evidence.
45. The complainant has not produced any contra documents to show that the accused had not at all paid the sale consideration at the time of registration of sale deeds. It is forthcoming in the evidence of PW-1 that he knows very well one Sri.Bhaskar L.M. and except the transaction with respect to properties under registered sale deeds vide Ex.P.5 to P.8, he has not done any transaction with accused. PW-1 has admitted that the site No.83 and 86 are belongs to her daughters namely Meghana and Sonam who have executed sale deeds on their individual capacity. But the complainant has not examined her own daughters before the Court to show that the accused has not at all paid any sale consideration at the time of registration of sale deeds. No explanation as such forthcoming in this regard for non examination of her own daughters. In the absence of such an explanation, an adverse inference has to be drawn against the case made out by the complainant for 24 C.C.No.33198/2018 with holding the material witnesses being examined before the Court.
46. PW-1 has admitted the recitals made in the sale deeds vide Ex.P.5 to P.8 to the effect that accused has paid all the sale consideration by way of cash as mentioned in Ex.P.5 to P.8. It is also admitted by PW-1 that there is a clear recital in the sale deeds vide Ex.P.5 to P.8 in respect of passing of sale consideration. It is also admitted by PW-1 that as per the market value on the date of sale deeds, she and her two daughters have executed the sale deeds in favour of the complainant.
47. It is pertinent to note here that the complainant and her two daughters are not illiterates. It is not the case of the complainant that she and her two daughters do not have worldly knowledge and do not know to read and write Kannada and English. On the other hand, PW-1 has admitted that she and her two daughters studied up to 12th Standard and they knows very well to read and write English and Hindi and the sale deeds vide ex.P.5 to P.8 were registered before the Sub Registrar of Nelamangala. PW-1 also admitted that at the time of registration of sale deeds Ex.P.5 to P.8, she and her two daughters, accused and witnesses were all present before the Sub-Registrar, Nelamangala and 25 C.C.No.33198/2018 they have put their signatures in the presence of witnesses before the Sub Registrar of Nelamangala.
48. It is also admitted by PW-1 that the recitals of sale deeds were read over and explained to them and after knowing the contents of sale deeds, she and her two daughters have put their signatures and they are very much aware about the financial transactions including registration of documents and having worldly knowledge. It is also admitted by PW-1 that all the sale deeds vide Ex.P.5 to P.8 were drafted and prepared by one deed writer and one Prakash and another Kiran were present as witnesses. But the complainant has not examined those witnesses before the Court to show that the accused has not at all paid sale consideration at the time of registration of sale deeds. No explanation as such forthcoming in this regard in the evidence placed on record. In the absence of such an explanation, an adverse inference has to be drawn against the case made out by the complainant.
49. It is also forthcoming in the evidence of PW-1 that she knows Bhaskar L.M. since more than 6 years who was dealing with real estate business and also financial transaction. It is also admitted by PW-1 that the total sale consideration of Ex.P.5 to P.8 was Rs.32,40,000/-. But, PW-1 has stated in her complaint, 26 C.C.No.33198/2018 notice and chief-examination that the total sale consideration was Rs.43,50,000/- which is highly contrary to the recitals of Ex.P.5 to P.8 and also materials placed on record.
50. It is also forthcoming in the evidence of PW-1 that Bhaskar L.M. has received amount from her and also her sister in the year 2012-13 on the promise to provide plots, but he did not return the amount. It is also forthcoming in the evidence of PW-1 that she and accused and Bhaskar L.M. were fixed the sale consideration and agreed to sell the properties to the accused and therefore, she and her daughter have sold the properties to the accused and they were in good terms with each other.
51. It is pertinent to note here that if really the accused had not paid the sale consideration at the time of registration of sale deed and if really the accused had executed memorandum of understanding vide Ex.P.9 to pay the sale consideration in near future, then as a natural human conduct and behaviour, the complainant and her two daughters would not have kept quite as a mute spectator without taking any steps against the accused at an earliest point of time. But they have not taken any steps at the earliest point of time against the 27 C.C.No.33198/2018 accused. On the other hand, PW-1 has stated that she has not obtained any documents on the same date of sale deeds in respect of due towards sale consideration from the accused.
52. Further, if really the accused had not paid the sale consideration at the time of registration of sale deed, then there must have been some recitals in the sale deeds vide Ex.P.5 to P.8 with respect to non passing of sale consideration on the date of registration of sale deeds. But there is no such recitals in the sale deeds wide Ex.P.5 to P.8. Under these circumstances, in the absence of such recitals, the say of complainant that the accused had not paid the sale consideration is highly doubtful.
53. In fact, PW-1 has feigned her ignorance as to who have purchased the stamp paper to prepare Ex.P.9. Even according to PW-1 that Ex.P.9 was typed within the premises of Hon'ble High Court and in respect of financial transaction between her and Bhaskar L.M, there was an agreement vide dated 02.02.2017 and when it was confronted to PW-1, she has admitted the same and therefore, it was marked as per Ex.D.1 through the evidence of PW-1 which probablize the defence taken by the accused.
28C.C.No.33198/2018
54. Be that as it may, it is also forthcoming in the evidence of PW-1 that she has lodged a complaint against Bhaskar L.M. and when the copies of the complaints were confronted to PW-1, she has admitted the same and therefore, they were marked at Ex.D.2 and D.3 which also probablize the defence taken by the accused. It is also forthcoming in the evidence of PW-1 that she has lodged a complaint against Bhaskar L.M. before Kalasipalya police on 12.05.2017 and the police have registered a Crime No.97/2017 against Bhaskar L.M. and at the time of lodging a complaint against Bhaskar L.M., she has not lodged a complaint against the accused and even after lodging the complaint, she has not taken any steps against the accused. The very inaction on the part of complainant leads to draw an adverse inference and it creates a doubt about the case made out by the complainant.
55. It is pertinent to note here that if really the accused had not paid the sale consideration at the time of registration of sale deeds, then the complainant could have taken steps against the accused at the earliest point of time. But she has not done so. No explanation as such forthcoming in the materials placed on record. In the absence of such an explanation, an adverse 29 C.C.No.33198/2018 inference has to be drawn against case made out by the complainant.
56. It is pertinent to note here that PW-1 has admitted that she do not know as to who are the signatories to the Memorandum of Understanding at Ex.P.9 and the accused had not undertaken to pay the any amount due from Bhaskar L.M. This necessarily indicate that there was no legally enforceable debt from the accused as on the date of issuance of cheque in question to PW-1. Under these circumstances, it cannot be said that the accused has issued the cheque in question towards the legally recoverable debt. The complainant has not placed any materials that accused was due for any legally enforceable debt.
57. As far as service of notice is concerned, the complainant has mainly relied upon the documents at Ex.P.4, P.11 and P.12. No doubt, the complainant has produced the copy of the legal notice, track result and delivery slip and they are marked at Ex.P.4, P.11 and
12. But the complainant has not produced the postal acknowledgement for having service of legal notice to the accused. But on the other hand, it is forthcoming in the evidence of PW-1 that at the time of issuance of legal notice vide Ex.P.4, the accused was not residing in 30 C.C.No.33198/2018 Malleshwaram address. Whereas, she came to know that the accused was residing at Kanakapura road. But no notice was issued to the accused to Kanakapura address. On the other hand, the notice at Ex.P.4 was issued to Malleshwaram.
58. Even according to complainant that it is who the father of the accused had received the notice and not the case. The father of the accused has received the notice in his office address and in fact PW-1 has feigned his ignorance about the name of the father of the accused. So, from these materials placed on record, it is crystal clear that the notice issued by the complainant vide Ex.P.4 was not served on the accused. As could be seen from the documents at Ex.P.2 and P.3, the cheque was not dishonoured for want of sufficient funds in the account of the accused or for exceeding the arrangement. But on the other hand, the cheque was came to be dishonoured with an endorsement as "Account Closed". So, it is crystal clear that the complainant has not complied the mandates of section 138 of N.I.Act and therefore, the presumption cannot be drawn in favour of the complainant U/s.118 and 139 of N.I.Act.
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59. Be that as it may, the complainant has also not placed any contra documents to show that the accused has not paid the sale consideration amount at the time of registration of sale deeds. But on the other hand, the very documents at Ex.P.5 to P.8 produced by the complainant would indicate that she has received the entire sale consideration from the accused by way of cash. Under these circumstances, it cannot be said that the accused has issued the cheque in question towards the legally recoverable debt.
60. Though, DW-1 was subjected for cross- examination at length, but nothing worth has been elicited to show or to prove that the accused has not paid the sale consideration at the time of registration of sale deeds and he has undertaken to pay the sale consideration on or before 30.06.2017 and therefore, he has executed the Memorandum of Understanding vide Ex.P.9 and to show that notice was served on the accused. No doubt, it is suggested to DW-1 that in the year 2017, he was residing at Malleshwaram; that at the time of sale deeds at Ex.P.5 to P.8, he has not paid the sale consideration either by way of cash or by way of any on-line mode; that though the sale consideration was Rs.43,50,000/-; but the sale consideration was mentioned as Rs.32,40,000/- in the sale deeds; that he 32 C.C.No.33198/2018 has purchased the stamp paper to prepare the Memorandum of Understanding at Ex.P.9 and issued the cheque in question; that the witnesses have put their signature to Ex.P.9; that he has given information to prepare Ex.P.9; that Ex.D.1 to D.6 are no way concerned to the present case; that he has voluntarily executed the document at Ex.P.9 and therefore, he has not taken any action; that in order to avoid the payment of amount of Rs.43,50,000/- mentioned in Ex.P.1 and P.9, he has lodged the false complaint; that he has created the documents; that though he has received the notice vide Ex.P.4, he is deposing false evidence before the Court to avoid payment of cheque amount.
61. But all these material suggestions have been specifically denied by DW-1. Therefore, it is said that the denied suggestions are always remained as suggestions only and not come in the way of complainant either to substantiate her case or to prove the existence of legally recoverable debt or to prove the issuance of cheque in question towards the legally recoverable debt or to falsify the oral evidence of DW-1 or to falsify the documents at Ex.D.1 to D.6 or to falsify the probable defence taken by the accused.
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62. But on the other hand, it is forthcoming in the evidence of DW-1 that he has not stated any address to the complainant and he has paid the entire sale consideration by way of cash to the complainant and he has declared the same in his Income Tax Returns. It is also forthcoming in the evidence of DW-1 that the complainant and police took him with force and obtained the cheque in question under threat and also signature to the document at Ex.P.9 at police station and therefore, he has lodged the complaint vide Ex.D.4 before Human Rights Commission on 10.08.2017. This necessarily indicate that the complainant has taken legal action against the complainant with respect to misuse of cheque and also Memorandum of Understanding vide Ex.P.9. All these materials placed on record would substantiate the defence taken by the accused and falsify the case made out by the complainant.
63. On appreciation of entire oral and documentary evidence placed on record, it is found that the complainant and her two daughters had sold the properties bearing site Nos.83, 86, 141 and 142 for Rs.32,40,000/- to the accused under registered sale deeds vide Ex.P.5 to P.8 and received the entire sale consideration of Rs.32,40,000/- from the accused by 34 C.C.No.33198/2018 way of cash. There is a specific recitals in the sale deeds vide Ex.P.5 to P.8 for having receipt of full sale consideration of Rs.32,40,000/- by the complainant from the accused. The complainant has not produced any contra documents to show that the accused had not paid sale consideration as on the date of execution of registered sale deeds. But on the other hand, there is a specific recitals in the sale deeds vide Ex.P.5 to P.8 that the accused has paid full sale consideration of Rs.32,40,000/- to the complainant. The complainant has admitted about these recitals with respect to passing of sale consideration. The documents at Ex.P.5 to P.8 being the registered sale deeds raises the presumptive value and it confirms the genuineness, authenticity and validity of any documents which has undergone the ordeal of the procedure prescribed under the provisions of Indian Registration Act, 1908.
64. The oral evidence of PW-1 and the documentary evidence at Ex.P.1 to P.12 do not establish that the accused has issued the cheque in question to the complainant towards the legally enforceable debt or any other debt. From the oral and documentary evidence placed on record, it is not shown by the complainant as to how an amount of Rs.43,50,000/- was due as on 01.07.2017 payable by the accused. Admittedly, the date 35 C.C.No.33198/2018 of sale deeds vide Ex.P.5 to P.8 is 19.03.2016. But the cheque vide Ex.P.1 is dated 01.07.2017. On the contrary, the alleged Memorandum of Understanding vide Ex.P.9 is dated 01.06.2017. Therefore, the complainant ought to have established by producing relevant documents that the amount mentioned in the cheque was actually due as on the date of issuance of cheque on 01.07.2017 and towards the said legally enforceable debt, the accused has issued the cheque vide Ex.P.1. But the complainant has not produced any materials before the Court to show that an amount of Rs.43,50,000/- was due from the accused as on 01.07.2017. The complaint averments, oral evidence of PW-1 and contents of notice are highly contrary to the documents at Ex.P.1 to P.12 with respect to existence of legally enforceable debt, dishoour of cheque for want of sufficient funds in the account of the accused including service of legal notice. In fact, there is no materials on record to prove the service of legal notice and thereby the complainant has failed to comply the mandates of Section 138 of N.I.Act and therefore, presumption is not in favour of the complainant.
65. But, on the other hand, the oral evidence of DW-1 coupled with documentary evidence at Ex.D.1 to D.6 would indicate that as on the date of execution of 36 C.C.No.33198/2018 registered sale deeds vide Ex.P.5 to P.8, the complainant has received full sale consideration of Rs.32,40,000/- from the accused by way of cash and there was no due on the part of the accused towards the complainant. It is found in the oral and documentary evidence placed on record that there was a money transaction and also real estate business transaction between the complainant and one Bhaskar L.M. and in this regard, there was a dispute between the complainant and said Bhaskar L.M and therefore, the complainant had lodged a complaint against the said Bhaskar L.M. and in this regard, the accused was summoned and obtained the cheque in question with force and thereafter, it was filled and filed the present complaint based on the said cheque. Under these circumstances, when once the accused has already paid sale consideration of Rs.32,40,000/- to the complainant, then the question of execution of alleged document at Ex.P.9 and issuance of cheque in question to the complainant does not arise as there was no existence of legally enforceable debt.
66. It is also unlikely in the normal circumstances that a person who has executed the registered sale deeds vide Ex.P5 to P.8 in favour of the accused would kept quite for long time nearly more than 1 year 3 months without taking any steps against accused. If 37 C.C.No.33198/2018 really the accused had not paid the sale consideration to the complainant as on the date of execution of registered sale deed, then the complainant ought have taken step at the earliest point of time. But has not done so. Under these circumstances, the say of the complainant that the accused has executed the Memorandum of Understanding vide Ex.P.9 and issued the cheque in question towards legally recoverable debt is highly doubtful and therefore, it cannot be accepted.
67. Under these circumstances, the arguments of the learned counsel for the complainant that the complainant has complied all the mandates of Section 138 of N.I.Act by adducing oral evidence of PW-1 and by producing documentary evidence at Ex.P.1 to P.12 and established the existence of legally recoverable debt of Rs.43,50,000/- and issuance of cheque in question towards the legally recoverable debt and therefore, the presumption is in favour of the complainant U/s.118 and 139 of N.I.Act, but the accused has failed to raise a probable defence and also failed to prove the probable defence before the Court and hence, the defence is not acceptable one and the accused is liable for conviction U/s.138 of N.I.Act is not sustainable under law and hence, cannot be accepted and the decisions cited in 38 C.C.No.33198/2018 this regard are also not applicable to the present facts and circumstances of the case.
68. On the other hand, there is some legal and considerable force in the submission of the learned counsel for the accused that as on the date of execution of registered sale deed vide Ex.P.5 to P.8, the accused had already made the payment of sale consideration of Rs.32,40,000/- and therefore, there is a clear recitals in the sale deeds vide Ex.P.5 to P.8 in respect of passing sale consideration and therefore, question of execution of memorandum of understanding vide Ex.P.9 and question of issuing the cheque in question vide Ex.P.1 to the complainant does not arise and the complainant has failed to comply the mandates of Section 138 of N.I.Act and the accused has raised a probable defence and also proved the same before the Court by adducing oral evidence of DW-1 and by producing the documentary evidence at Ex.D.1 to D.6 which falsifies the case made out by the complainant and substantiate the probable defence taken by the accused and hence, the accused is not liable to pay any cheque amount to the complainant as there was no existence of legally enforceable debt and the decisions cited in this regard are also applicable to the present facts and circumstances of the case.
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69. Therefore, for the reasons discussed above, this Court is of the considered view that the materials placed on record do not establish the guilt against the accused for the offence punishable U/s.138 of N.I.Act. Therefore, I hold that the complainant has failed to prove the offence punishable U/s.138 of N.I.Act against the accused. Hence I answer point No.1 in the Negative.
70. POINT NO.2: In view of my findings on point No.1, I proceed to pass the following:-
ORD ER The accused is found not guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable U/sec.138 of N.I.Act. The bail bonds and surety bonds of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
(Dictated to the stenographer, transcribed by him, print out taken by him, verified, corrected and then pronounced by me in the open Court on this the 03rd November 2022).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.40
C.C.No.33198/2018 ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Smt.Santosh Jain
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 : Original Cheque. Ex.P.1(a) : Signature of the Accused. Ex.P.2 & 3 : Bank Memos. Ex.P.4 : Office copy of Legal Notice. Ex.P.5 to P.8 : Sale Deeds. Ex.P.9 : Memorandum of Understanding. Ex.P.10 : Complaint. Ex.P.10(a) : Signature of witness. Ex.P.11 : Track Result. Ex.P.12 : Delivery Slip.
3. List of witness/s examined on behalf of the Accused:-
DW-1 : Chinmay Hegde
4. List of documents exhibited on behalf of the Accused:-
Ex.D.1 : Agreement.
Ex.D.2 : Complaint in CC.No.28751/2018.
Ex.D.2(a) : Relevant Portion.
Ex.D.3 : Sworn Statement.
Ex.D.4 : e-mail.
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Ex.D.5 : 65-B Certificate through DW-1.
Ex.D.6 : complaint before Human Rights Commission (N.M.RAMESHA) *mbh* XVI ACMM, Bengaluru City.