Bangalore District Court
For The Offence Punishable U/S.138 Of ... vs The Accused Had Handed Over The Original ... on 27 June, 2016
1 CC.NO.8297/2014
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE: BANGALORE CITY.
Dated this the 27th day of June 2016
Present: Sri.V.S.Pandit,B.A.,LL B.,
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.8297/2014
2.Name of the Complainant: Varnasi Ramesh,
S/o.Lakshminarayan, 44 years,
R/at No.7, 4th Cross, Subbanna
Garden, Vijayanagar,
Bangalore-560 040.
3.Name of the accused: Ashok Kumar,
No.18, Old No.531, 11th C
Cross Road, Vyalikaval Ward
No.5, Malleshwaram,
Bangalore-03.
4.The offence complained of U/s.138 of Negotiable
: Instruments Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(1) Cr.P.C.,
accused is Acquitted.
7.Date of final Order 27th day of June 2016
---
1. The accused has been prosecuted by the
complainant for the offence punishable U/s.138 of Negotiable
Instrument Act - 1881 (hereinafter referred as NI Act for
brevity)
2 CC.NO.8297/2014
2. Case of the complainant in brief are as under -
a. Complainant is acquainted with the accused
since seven years. In the month of April 2012, accused and
his wife Geetha had approached the complainant for loan of
Rs.40 lakhs for the purpose of clearing loan and also for
domestic purposes. Having regard to the long standing
relationship between the parties, in the first week of May
2012, complainant paid a sum of Rs.20 lakhs by way of cash.
On 20.5.2012, another sum of Rs.20 lakhs paid to the
accused. The accused had handed over the original property
documents bearing No.19 (old No.53), 11th C Cross Road,
Vyalikaval, Ward No.5, Malleshwaram, Bangalore. Accused
assured to make the payment within one year.
b. It is further case of the complainant that after a
lapse of one year, complainant approached the accused. On
one pretext or the other, accused postponed the payment. On
persistent demand, accused has issued post dated cheques for
a sum of Rs.17 lakhs dated 5/6/2013 and another cheque for
a sum of Rs.23 lakhs dated 24/6/2013, both were drawn on
Malleshwaram Co-operative bank Ltd., Bangalore. Both
cheques have been presented through State Bank of India,
3 CC.NO.8297/2014
but the cheques were dishonoured for the reason 'FUNDS
INSUFFICIENT' on 25.6.2013 and 3.7.2013, respectively.
c. The complainant got issued legal notice on 23/7/2013
demanding the repayment of the amount. The notice served
upon the accused on 25/7/2013. Despite service of notice,
accused did not pay the amount, as such complainant is
constrained to file the complaint.
3. After taking cognizance, issued summons to the
accused. In response to the summons, accused appeared and
was enlarged on bail. Plea for the offence was read over and
explained to the accused. Accused pleaded not guilty and
pleads his innocence.
4. To sustain the charge leveled against the accused,
the complainant examined himself as PW.1 and got marked
the documents at Ex.P.1 to Ex.P.33 on behalf of the
complainant.
5. After conclusion of the evidence of the complainant,
statement of the accused U/s.313 Cr.P.C., was recorded.
Accused denied the evidence. Accused examined himself as
DW.1 and documents got marked at Ex.D.1 to 4 on behalf of
defence.
4 CC.NO.8297/2014
6. Heard both sides.
7. The points that arise for my consideration are as
under:-
1. Whether the complainant has
proved that cheques were issued by the
accused for discharge of legally enforceable
debt, the same were returned unpaid for
the reason 'FUNDS INSUFFICIENT' and
notice was not complied. Hence accused
committed an offence under Sec.138 of N.I.
Act ?
2. What Order ?
8. My findings on the above points are as follows:
Point No.1 : in the Negative,
Point No.2 : as per final order for the
following;
REASONS
9. Point No.1 - It is the case of the complainant that a
sum of Rs.40 lakhs was paid to the accused in two
installments. To discharge the liability, disputed cheques have
been issued. On presentation, both cheques have been
returned unpaid for the reason 'FUNDS INSUFFICIENT'. Since
even though, notice is duly served, accused did not make the
payment. As such, complainant is constrained to file the
complaint.
5 CC.NO.8297/2014
10. It is the case of the accused that in the month of
August 2013, he borrowed a sum of Rs.3,20,000/-. At that
time, two cheques have been issued for security purpose and
original title deed was also given to the complainant. Except
the signature, no any writings were made on the disputed
cheques. A sum of Rs.1,60,000/- was already repaid to the
complainant. Soon after receipt of the notice, accused filed
complaint against the complainant. The accused has also
issued reply notice. It is the case of the accused that misusing
the cheques, complainant has filed false case.
11. The learned counsel for the accused at the out set
has submitted that signature and drawing of the cheques from
the account of the accused is not denied. There is nothing on
record to suggest that accused borrowed a sum of
Rs.3,20,000/- and repaid a sum of Rs.1,60,000/-. There is no
records produced by the accused to show that a sum of Rs.15
lakhs was paid to the Bank of India by the independent source
of income. There is no records to show that accused had bank
loan to the extent of Rs.3,20,000/-. It is also admitted by the
accused that even after lapse of one month from the receipt of
the notice, he did not initiate any proceedings against the
complainant for misusing the cheques and the records
6 CC.NO.8297/2014
produced by the complainant manifestly on the face of the
record proves that accused and his wife Geetha indebted to
various financial institutions to clear the loan, they borrowed a
sum of Rs.40 lakhs and to refund the same, cheques were
issued. There is nothing elicited in the cross-examination of
the complainant to discard the evidence coupled with the
documentary evidence. As such, learned counsel for the
complainant sought for conviction.
12. As against these arguments, the learned counsel for
the accused has submitted that no any records to show that
accused is doing Real Estate business and also Agriculture. So
that he could amass huge amount of Rs.40,00,000/- at one
stretch. Inviting the attention of this Court towards Ex.P.17
i.e. Bank statement of accounts, during the relevant period, i.e.
in the month of May 2012, when the alleged loan was granted,
no any amount nearer to the alleged advancement of the loan
was lying. Further the complainant has admitted in his
cross-examination that a sum of Rs.40 lakhs was drawn from
the Shyamrao Vittal Co-operative bank and in this regard,
complainant has produced Ex.P.18 i.e. bank statement of
accounts pertains to the Vittal Co-operative Bank and there
also no entry with regard to the withdrawal of Rs.40 lakhs at
7 CC.NO.8297/2014
the relevant point of time. There is noting on record to suggest
that a sum of Rs.20 lakhs was paid to the accused in the first
week of May 2012. Further, there is no records to suggest that
further a sum of Rs.20 lakhs was paid to the accused on
20.5.2012. There is no records to show that as on the date of
advancement of the loan, complainant possessed a sum of
Rs.40 lakhs with him. The income tax returns produced by the
complainant does not reflect with regard to the sound
financial position of the complainant. Apart from that, the
complainant himself has admitted during the course of cross-
examination that he had borrowed loan from the bank to the
extent of Rs.31 lakhs from the State Bank of Mysore, under
such circumstances, it is un-believable that complainant
would venture upon to advance huge amount of Rs.40 lakhs to
the accused. Apart from that, there is no documents produced
by the complainant to show that accused is capable of
refunding the amount of Rs.40 lakhs. No doubt, it is true that
the complainant has produced original title deed pertains to
the house of the accused and also produced valuation Report.
This itself shows that the complainant had evil eye on the
property of the accused. Just to grab the house property of the
accused, the complainant has taken blank cheques and
8 CC.NO.8297/2014
misusing the same, false complaint is filed. Therefore, for all
these reasons, accused sought for acquittal.
13. No doubt, it is true that signature and drawing of the
cheques from the account of the accused is not denied.
Therefore, initial presumption has to be drawn that cheques in
question were issued for discharge of liability. However, the
said presumption is rebuttable in nature and it is for the
accused to rebut the presumption by placing direct or
circumstantial evidence. The onus is that of 'Preponderance of
Probabilities'. The accused need not put-forth his defence
beyond all reasonable doubt. What is expected from the
accused is reasonable and probable defence, which is
acceptable and believable that cheques in question were issued
as contended. This view is fortified by the Judgment of the
Hon'ble Apex Court reported in the case of 'Krishna
Janardhana Bhat -Vs- Dattatraya G.Hegde- (2008)2 SCC (Crl.)
166. In the said decision, it is also discussed with regard to
the financial capacity is one of the criteria to raise
presumption. Further, also discussed with regard to the
violation of Sec.269 SS of the Income tax Act, with regard to
the payment of more than Rs.20,000/- had to be made by an
account payee cheque. Further in -- John K.Abraham -Vs-
9 CC.NO.8297/2014
Simon C.Abraham and another, - (2014) 1 SCC (Crl.) 791.
In the said case also, there is a discussion with regard to the
source of income for advancement. In M.S.Narayan Menon
Alias Mani -Vs- State of Kerala and another -(AIR 2006 SC
3366), the Hon'ble Apex Court, while exercising presumption
has held that books of accounts maintained by the
complainant for proving the transaction is also one of the
relevant consideration to raise presumption". In the light of
these judgments of the Hon'ble Apex Court, case on hand has
to be appreciated.
14. On careful perusal of the averments made in the
complaint, it is stated that in the month of April 2012, accused
sought for loan of Rs.40,00,000/-. It is stated that the said
loan was sought for clearing loan and for domestic purpose. It
is further averred in the first week of May 2012, a sum of Rs.20
lakhs was paid and on 20.5.2012, another sum of Rs.20 lakhs
was paid to the accused. It is further pleadings of the
complainant that accused has agreed to repay the amount
within one year. From the bare perusal of the above
averments, when the complainant alleges to have advanced
huge sum of Rs.40 lakhs that too knowing fully well that
accused indebted to various financial institutions, it is
10 CC.NO.8297/2014
reasonable to expect from the complainant to prove the source
of income as well as the capacity of the accused to refund the
amount in question.
15. The complainant though not stated anything about
his occupation and means of survival. But only during the
course of cross-examination, the complainant has stated that
from the Real Estate Business and Agriculture, he is getting
annual income of Rs.6 lakhs. It is further stated that family
expenses would come to Rs.3 lakhs. At the very out set,
nothing on record produced by the complainant to show that
he is doing Real Estate Business as well as getting income
from the Agricultural source. The complainant has produced
Ex.P.11 to 15, the income tax returns. As per Ex.P.11, for the
year 2007-08. The income of the complainant is disclosed as
Rs.2,56,800/- as per Ex.P.12 income tax assessment, for the
year 2008-09, the total income of the complainant is shown
as Rs.2,83,500/-. Annex to Ex.P.12, there is a computation
total income produced by the complainant wherein, it is
disclosed that income from salary is Rs.2,83,500/-. It is
significant to note that income from house property, income
from business, income from profession, capital gain, income
from other sources all had been shown as nil. Ex.P.14 is the
11 CC.NO.8297/2014
Income Tax returns for the year 2013-14, wherein, income of
the complainant is discloses as Rs.3,02,200/-. Ex.P.13 is the
Income tax Returns for the assessment year 2012-13 wherein,
income of the complainant is shows as Rs.2,79,000/-. Ex.P.15
is the Income tax returns, assessment for the year 2014-15
wherein, income of the complainant is disclosed as
Rs.3,25,200/-. What is significant to note that in these income
tax returns, the complainant did not disclose the source of
income generated from the selling of property and further the
complainant did not disclose the source of income from the
real estate and agriculture. Suddenly, as per Ex.P.16, after
completion of the cross-examination of the complainant, the
complainant has produced Statement of affairs as on
31.3.2014, wherein, capital amount was disclosed as
Rs.40,02,350/-. In the said document, it was disclosed that a
sum of Rs.40 lakhs was paid to the accused. The author of the
Ex.P.16 is not examined before the Court. Further, Ex.P.16
does not help the case of the complainant to arrive at a total
income of the complainant during the relevant point of time
since the income from selling of the property has not disclosed
in the income tax returns. Similarly, as per Ex.P.19, statement
of accounts pertains to the complainant wherein, on
12 CC.NO.8297/2014
28.4.2012, property bearing No.888 of Chandra Layout,
Nagarabhavi, in Sy.No.7 was sold for a sum of Rs.30,80,000/-
and a sum of Rs.30,80,000/- was credited to the account of
the complainant by virtue of sale of the property on 3.3.2012.
Further, a sum of Rs.30 lakhs was credited by way of cheque
to the account of the complainant pertains to the Shyamarao
Vittal Co-operative Bank Ltd., on 3.3.2012. By these records,
the complainant wanted to establish that he had sufficient
source of income to pay a sum of Rs.40 lakhs to the accused.
Whether these records are sufficient to arrive at a conclusion
that complainant has paid a sum of Rs.40 lakhs to the accused
in two installments is the question before the Court.
16. It is come in the evidence of the complainant that he
had withdrawn a sum of Rs.40 lakhs from the Shyamarao
Vittal Co-operative Bank, and paid the amount to the accused.
Whether withdrawal of Rs.40 lakhs by the complainant is
established is to be seen. To corroborate this factor, the
accused has produced Ex.P.18 bank pass book of Shyamarao
Vittal Co-operative Bank Ltd. On careful scrutiny of the
document, for the payment of Rs.20 lakhs each, in the month
of May 2012, there is no recital in Ex.P.18 to show that a sum
of Rs.20 lakhs each were withdrawn from the account of the
13 CC.NO.8297/2014
complainant. No doubt, it is true that sale consideration of
Rs.30 lakhs was deposited to the account of the accused's
passbook as per Ex.P.18, on 3.3.2012 and on 6.3.2012, but
the said amount have been withdrawn subsequently. What is
significant to note that Ex.P.18 does not disclose that in the
month of May 2012, a sum of Rs.40 lakhs was lying in the
account of the complainant and it was withdrawn as stated by
the complainant. Therefore, Ex.P.18 is not helpful to the case
of the complainant to substantiate the contention that amount
was withdrawn and paid to the accused.
17. Ex.P.26 is the receipt issued by the Malleshwaram
Co-operative Bank, in favour of the accused for having received
a sum of Rs.3,78,000/-. This Ex.P.26 is issued on 26.2.2008.
This Ex.P.26 is also not helpful to the case of the complainant
to arrive at a conclusion that to discharge the loan,
complainant had advanced a sum of Rs.40 lakhs. Ex.P.30 is
the receipt issued by the Bank of India, for having received a
sum of Rs.15,60,298/- from the account of the accused and
this Ex.P.30 is dated 10.1.2013. No doubt, it is true that
accused during the course of cross-examination has stated
that no records to show that he has paid a sum of Rs.15 lakhs
to clear the loan but even then, Ex.P.30 does not prove that
14 CC.NO.8297/2014
complainant had advanced said amount to the accused. The
loan was cleared on 10.1.2013, whereas the alleged
advancement of loan is made in the month of May 2012,
nobody will pay huge amount of Rs.40 lakhs that too prior to
6-7 months from the date of clearing the loan. Apart from
that, the alleged advancement of loan is Rs.40 lakhs, whereas
Ex.P.30 discloses that a sum of Rs.15,60,298/- was cleared. It
is not the case of the complainant that he advanced a sum of
Rs.15,60,298/- so as to extend the accused to clear the loan.
Therefore, Ex.P.30 is also not helpful to the case of the
complainant. Ex.P.33 is the Certified copy of the plaint filed
before the Debt Recovery Tribunal by the wife of the accused
against the accused and bank of India and in the said case, the
amount involved is Rs.12 lakhs and sought for injunction to
stay the sale. Notice issued by the bank dated 8.12.2012, but
the loan had been cleared subsequently by the accused as per
Ex.P.30. Ex.D.3 is the loan clearing letter issued by the bank
on 9.7.2012 for a sum of Rs.12 lakhs. Therefore, all these
records, no doubt, for a moment made this Court to believe the
averments of the complainant that accused is indebted to
various financial institutions. But what is significant to note
that having fully aware of the plight of the accused, what
15 CC.NO.8297/2014
made the complainant to advance huge amount of Rs.40 lakhs
that too without obtaining any security documents except
taking property documents. There are no records to show
that as on the date of alleged advancement of the loan,
complainant had possessed a sum of Rs.40 lakhs. There is no
records to show that a sum of Rs.20 lakhs was paid in the
first week of May 2012. There is no records to show that a
sum of Rs.20 lakhs was paid on 20.5.2012.
18. Another significant factor to be taken note of is -no
prudent man would advance huge amount of Rs.40 lakhs to
the accused without charging interest for a period of one year.
If all these factors are taken into consideration, particularly,
having aware of the pathetic financial condition of the accused,
the complainant alleges to advance a loan of Rs.40 lakhs and
such conduct of the complainant appears to be quite un-
natural and against to the normal human conduct. This leads
to form an opinion that the complainant had evil eye on the
property of the accused. Further, as rightly submitted by the
learned counsel for the accused, the capacity of the accused to
return the amount is also one of the question that is to be
considered. Since at the cost of repetition, so-far as financial
position of the accused is concerned expecting him to return
16 CC.NO.8297/2014
a sum of Rs.40 lakhs to the complainant is virtually makes this
Court to dis-believe the case of the complainant that he had
advanced a sum of Rs.40 lakhs on two occasions to overcome
the financial burden. Therefore, after having gone through the
entire material placed on record by the complainant, it is not a
fit case, wherein invoking presumption is required. On the
contrary, the material on record placed by the accused
particularly, the circumstances under which the alleged loan
alleges to have been advanced is sufficient to rebut the
presumption. As such, I answer Point No.1 in the negative.
19. Point No.2 : In the result, I proceed to pass the following:
ORDER
Acting Under Sec.255(1) Cr.P.C., accused is Acquitted for the offence punishable u/s.138 of the N.I.Act.
His bail bond and surety bond shall stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, is verified and then pronounced by me in Open Court on this the 27th day of June 2016.) (V.S.PANDIT), XV Addl. CMM., Bangalore.
17 CC.NO.8297/2014ANNEXURE Witnesses examined for the Complainant:-
PW.1 Varanasi Ramesh, Documents marked for the Complainant:-
Ex.P.1 Cheque,
Ex.P.1a Signatures,
Ex.P.2 Bank endorsement,
Ex.P.3 Cheque,
Ex.P.3a Signature,
Ex.P.4 Bank Endorsement,
Ex.P.5 Office copy of the legal notice,
Ex.P.6&7 Two postal receipts,
Ex.P.8 Letter to the Officer of the postal
Authority,
Ex.P.9 Reply from the Postal Authority,
Ex.P.10 Reply Notice,
Ex.P.11 Tax receipt,
Ex.P.12 Income tax receipt for the year 2008-09,
Ex.P.13 Income tax receipt for the year 2012-13,
Ex.P.14 Income tax returns for the year 2013-14,
Ex.P.15 Income tax returns for the year 2014-15
Ex.P.16 Statement ofr account as on 31.3.2014,
Ex.P.17 and 18 Two pass book
Ex.P.19 Audit report,
Ex.P.20 to 24 Certified copies of sale deed,
Ex.P.25 Valuation Report,
Ex.P.26 Receipt,
Ex.P.27 Sale Deed,
Ex.P.28 Copy of the complaint,
Ex.P.29 Form No.15,
Ex.P.30 Receipt issued by the bank,
Ex.P.31 Letter addressed to the PSI of Vyalikaval
P.S.,by the accused,
Ex.P.32 Endorsement,
Ex.P.33 Copy of the plaint filed before the Debt
Recovery Tribunal by the wife of the Accused.
18 CC.NO.8297/2014Witnesses examined For Defence:-
DW.1 Ashok Kumar, DW.2 Smt.Veena.
Documents marked for Defence:-
Ex.D.1 Certified copy of the complainant, Ex.D.2 Reply Notice, Ex.D.3 Copy of the ledger issued by the bank, Ex.D.4 Certified copy of the private compaint.
XV Addl.CMM., Bangalore.