Bangalore District Court
Sri.Y.C.Mariswamy vs Sri.Sreenivasulu on 20 November, 2018
1 C.C.No.7778 /2016 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated:- This the 20th day of November, 2018
Present:- Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI ACMM, Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.7778/2016
Complainant : Sri.Y.C.Mariswamy,
S/o.Sri.Channaveeradevaru,
Aged about 73 years,
No.318, 5th A Main Road,
REMCO LAYOUT II STAGE,
Vijayanagar,
Bengaluru - 560 040.
(Rep. by Sri.Basavaraju H, Adv.,)
- Vs -
Accused : Sri.Sreenivasulu, ,
Aged about 26 years,
Working at B.V.B, 605,
Nandini Milk Shop, 2nd Cross,
L I C Colony,
Jayanagar 3rd Block,
Bengaluru - 560011.
Permanent address at:-
H.Gollahalli Village,
Mulabagilu Taluk,
Kolar District.
(Rep. by Sri.D.Venugopal and another,
Advs.,)
2 C.C.No.7778 /2016 J
Case instituted : 11.3.2016
Offence complained : Sec.138 of N.I.Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 20.11.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused and he are known to each other and the Accused said that he was in need of funds for his business purpose and also to repay his personal debts. In the said situation, the Accused approached him in the month of May 2015 demanding to give hand loan of Rs.12 Lakhs. At that juncture, it was disclosed to him that the Accused was very much in need of financial help for his business purpose. Hence in that situation, on humanitarian ground, he lent a hand loan of Rs.12 Lakhs to the Accused on 15.6.2015. It was agreed between them that the Accused would repay the entire loan amount to him within four months from the date 3 C.C.No.7778 /2016 J of borrowing the said hand loan with interest at 2 % per month.
3. The Complainant has submitted that, the Accused failed to comply with the terms of the agreement and thereafter after his several rounds of demands, the Accused issued the cheque bearing No.723107 dated 4.1.2016 drawn on the SBI, Kumaraswamy Layout Branch, Bengaluru for Rs.12 Lakhs, assuring that, the same would be honored on it's presentation on the due date.
4. That, accordingly, when he presented the said cheque for encashment through his Banker, the same came to be returned dishonored with an Endorsement dated 5.1.2016 for the reason "Funds Insufficient".
5. The Complainant has submitted that, thereafter he got issued a legal notice to the Accused on 3.2.2016 by RPAD to his residential and working addresses. The notice sent to his permanent address returned with shara "Refused" on 9.2.2016, while another notice has not returned, in respect of which, he lodged a complaint to the postal authorities. Despite the same, the Accused has neither replied nor has he 4 C.C.No.7778 /2016 J complied with the demand made therein. Hence the present complaint.
6. The Complainant submits that, the dishonor of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
7. The Complainant has led his pre-summoning evidence and he has filed his affidavit-in-lieu of his sworn statement, in which he has reiterated the complaint averments.
8. In support of his oral evidence, C.W.1 has produced and relied upon the following documentary evidence as per Ex.C1 to C8:-
Ex.C1 is the Original Cheque dated:-4.1.2016, in which, the signature is identified by C.W.1 as that of the Accused as per Ex.C1(a), the Bank Memo as per Ex.C2, the office copy of the Legal Notice as per Ex.C3, the returned Legal Notice is as per Ex.C4, the Postal Envelope as per Ex.C5, the Postal Receipt as per Ex.C6, the Postal Acknowledgement as per 5 C.C.No.7778 /2016 J Ex.C7 and the office copy of the complaint to the Postal Authorities as per Ex.C8.
9. Prima-facie case is made out against the Accused and he has been summoned vide the order of the same date.
10. The Accused has appeared before the court. He has been enlarged on bail. The substance of the accusation has been read over to him, to which, he has pleaded not guilty and has stated that he has the defence to make.
11. In his post-summoning evidence, the Complainant has examined him as P.W.1 and he has filed his affidavit-in- lieu of his chief-examination, wherein, he has reiterated the averments made in the complaint.
12. P.W.1 has produced and relied upon the following additional documentary evidence as per Ex.P9, P10 and P13 and P14, which is, as follows:-
Ex.P9 is the certified copy of the Sale Deed dated 19.12.2014, Ex.P10 and P11 are the two Bank Passbooks of the wife of the Complainant and Ex.P13 and P14 are the Bank Passbook and the Statement of Accounts of the Complainant respectively.6 C.C.No.7778 /2016 J
13. The statement of the Accused under Sec.313 of Cr.P.C. has been recorded. He has denied the incriminating evidence found against him and has chosen to lead his rebuttal evidence.
14. The Accused is examined as D.W.1 and he has filed his evidence affidavit, which is accepted by this court, as per the direction of our Hon'ble High Court in Afzal Pasha V/s. Mohamed Ameer Jan, reported in LAWS (KAR) 2016 (8) 131, in which, the acceptance of the affidavit of the Accused is permitted by our Hon'ble High Court in accordance with the direction of the Hon'ble Apex Court in the case of the Indian Bank Association Vs., Union of India, reported in (2014) 4 SCC
590.
15. The gist of the defence of the Accused in his affidavit is as follows:-
i) That he is a native of Agrahara Village, Kandakuru Post, PTM Mandalam, Chittoor District (AP) and that he is residing in the Bengaluru address since few years;
ii) That the Complainant is known to him through his uncle Sriramulu K/D.W.2j under whom, he is 7 C.C.No.7778 /2016 J working as a sales/collection boy for a monthly salary of Rs.9,000/=;
iii) That he never borrowed any hand loan from any person, he being a bachelor;
iv) That the true fact is that, the Complainant is doing the business of milk products i.e., Area Distributor of KMF products, whereas Sriramulu is a Sub-
agent under him. Such being the case, he, being an employee of Sriramulu, who is his relative, used to go for collection and delivery of products. On one such occasion, there was difference of opinion between Sriramulu and the Complainant and at that time, the Complainant insisted to issue a blank cheque for guarantee for his products share;
v) That at that time, Sriramulu who was not having his cheque insisted him to issue his cheque for guarantee in favor of the Complainant and accordingly, got issued the cheque in question for security purposes.
vi) That no notice was served on him and the notices were got issued to his wrong addresses by the 8 C.C.No.7778 /2016 J Complainant by obtaining suitable shara from the postal authorities;
vii) That he, being a bachelor has no capacity either to borrow such huge loan amount nor to repay the same and as such the claim of the Complainant in this regard is an unbelievable story.
viii) That the Complainant has misused his security cheque by filling up the same as per his whims and fancies;
ix) That he has never borrowed any amount from the Complainant and as such, he is not liable to pay any amount to him.
Accordingly, he has prayed for his acquittal.
16. In support of his defence, D.W.1 has produced and relied upon the following documents:-
i) His original Aadhar Card, Voter ID Card and Family Ration Card as per Ex.D1 to D3 respectively.
17. It is seen that, in support of his defence, the Accused has examined a witness as D.W.2, who has also filed his affidavit, which is accepted by this court as per the 9 C.C.No.7778 /2016 J direction of our Hon'ble High Court in Afzal Pasha V/s. Mohamed Ameer Jan, reported in LAWS (KAR) 2016 (8) 131, in which, the acceptance of the affidavit of the Accused is permitted by our Hon'ble High Court in accordance with the direction of the Hon'ble Apex Court in the case of the Indian Bank Association Vs., Union of India, reported in (2014) 4 SCC
590.
18. The witness/D.W.2 has deposed as follows:-
i) That the Complainant is doing the business of milk products and that he was the Sub-agent under him from 2010 to 2015;
ii) That as he was unable to cover the area, he appointed the Accused as a Sales/Collection boy for a monthly salary of Rs.9,000/=;
iii) That due to difference of opinion between him and the Complainant in respect of commission, the Complainant insisted him to get a security cheque from the Accused, who was a collection boy;
iv) That he instructed the Accused to hand over a blank cheque to the Complainant for security purpose during the year 2014;10 C.C.No.7778 /2016 J
v) That due to difference of opinion in the business, he stopped doing business with the Complainant;
vi) That in order to take revenge against him, the Complainant has misused the cheque in question and filed this false case against the Accused;
vii) That till date the Accused is a bachelor, working under him for Rs.12,000/= per month and that he hails from a poor family;
viii) That the Accused has not borrowed any amount from the Complainant and issued the subject cheque for his liability.
19. D.W.1 and D.W.2 have been cross-examined extensively by the learned counsel for the Complainant.
20. It is seen that during the cross-examination of D.W.1, the Bank Passbook of the Complainant is confronted and marked through the former as Ex.P12 and the relevant entry in it as per Ex.P12(a).
21. I have heard the arguments of the learned counsel for the Complainant as well as the Accused. The learned 11 C.C.No.7778 /2016 J Defence Counsel has also filed his written arguments. I have gone through the same.
22. In support of his arguments, the learned Defence Counsel has relied upon the following decisions:-
i) Mohd. Farooqe Vs,. Kantaben G Savalia and others, reported in 2009 (1) DCR Page 161;
ii) Ajaya Industries Vs., Gulshan Rai Malhotra, reported in 2014 (3) DCR 156;
iii) Premadas Vs., Venkataraman, reported in LAWS (KAR) 2000 (11) 84;
iv) Subramani Vs., K.Damodaranaidu, reported in AIR 2015 SCW 64;
v) Surjith Singh Vs., Amarpal Singh, reported in 2014 (3) DCR 488;
vi) John K John Vs., Tom Verghese and another, reported in AIR 2008 SC 278.
23. I have carefully gone through the afore-cited decisions and perused the record carefully.
24. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
12 C.C.No.7778 /2016 JThe main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards the payment of the amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section
138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
25. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".13 C.C.No.7778 /2016 J
26. Also, Sec. 118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
27. Thus, the Act clearly lays down the presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused, towards the discharge of his liability in favour of the Complainant.
28. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
29. It is a well settled position of law that, the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something 14 C.C.No.7778 /2016 J which is probable must be brought on record for getting the benefit of shifting the onus of proving to the Complainant.
30. It is also a well settled position of law that once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
31. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
15 C.C.No.7778 /2016 J32. Admittedly, there is no dispute with regard to the fact that, the cheque in dispute belongs to the Accused with his signature on it. Likewise, there is no acquaintance between the Complainant and the Accused and also with regard to the fact that, the Complainant is doing the business of Nandini Milk Parlour since 7 to 8 years and that the Accused was supplying the Nandini Milk Products to the Nandini Parlour as an agent.
33. Likewise, it is also not in dispute that, the Accused came in contact with the Complainant through the uncle of the former by name Sriramulu/DW.2. However, there is a serious dispute on the part of the Accused with regard to the existence of the alleged loan transaction as claimed by the Complainant in the present case as well as with regard to the fact that, he has issued the subject cheque in favour of the Complainant towards the discharge of his alleged legally payable debt. In such circumstance, though the Accused admits that, the cheque in question relates to his account with his signature on it, the presumptions u/Sec. 118 and 139 are to be drawn in favour of the Complainant. However, when there is a serious dispute with regard to the existence of the alleged loan transaction between the parties, the 16 C.C.No.7778 /2016 J burden of proving the case beyond reasonable doubt is upon the Complainant.
34. In this regard, it is pertinent to note that, at the outset, the main defence raised by the Accused with regard to the alleged non-service of the legal notice upon him.
35. As this defence, being a technical defence touches the very maintainability of the complaint, before going to discuss about the other defences of the Accused in the present case, it is necessary to give a finding about this technical defence first.
36. It is pertinent to note that, as per the complaint averments, the legal notice dated:- 3.2.2016, is alleged to have been caused by the Complainant to the permanent as well as the working address of the Accused and the notice sent to his permanent address is said to have been returned with Shara "Refused", while the other notice sent to his working address, since is not returned, the former is said to have lodged a complaint regarding the same to the postal authorities on 22.2.2016.
37. In this regard, it is pertinent to note that, though during his evidence, the Complainant has marked the Postal 17 C.C.No.7778 /2016 J receipt and the returned Postal Envelope and also the office copy of the complaint dated:- 22.2.2016 with regard to the non-receipt of the postal acknowledgement with regard to the notice said to have been caused by him to the Accused to his Bangalore address as exhibits in the present case, till date there is no proof placed on record by the Complainant, in order to establish the fact that, the said legal notice which was said to have been caused by him to the Bangalore address of the Accused has been duly served upon him.
38. It is pertinent note that, during the cross- examination of the Complainant, the Accused has seriously disputed and denied the alleged service of the legal notice upon him.
39. In this regard, it is elicited from the Complainant tht, the Accused is from Mulabagilu Taluk and that he does not remember the name of the village from which the Accused hails from. Likewise he has no knowledge with regard to the details of the family members of the Accused.
40. Likewise, it is also elicited from the Complainant that, he does not remember about the native place of the Accused, though he claims that, he must be from a village by name Gollahalli of Malavalli village of Kolar District. However, 18 C.C.No.7778 /2016 J the Complainant has pleaded ignorance, when it is suggested to him that, the Accused is residing in the Bangalore address i.e., in Kumaraswamy Layout and though he claims that, he has visited the house of the Accused in Bengaluru. He has admitted the suggestion that, he has not sent the legal notice to the Kumaraswamy Layout address of the Accused. Moreover, when it is specifically questioned to the Complainant that, there is no mention of either the age or even the name of the Accused on the Postal Acknowledgement at Ex.C.5, he has answered that, he does not know his father.
41. However, it is pertinent to note that, though the Complainant has denied the defence of the Accused tht, there is no service of the legal notice upon the latter, admittedly, there is no proof to show that, the legal notice said to have been caused by the Complainant to the Bengaluru address of the Accused has been duly served upon him.
42. In this regard, it is also pertinent to note that, as the onus of proving the fact that, at the relevant point of time, he was not residing in the address, to which, the legal notice is said to have been caused to him by the Complainant, but that he was residing elsewhere, is upon the Accused, even in 19 C.C.No.7778 /2016 J his rebuttal evidence, the Accused has described his residential address of Bengaluru has residing at No.3435, 68th Cross, Kumaraswamy Layout, Bengaluru - 68.
43. He has further deposed that, he is a native of Agrahara Village, Kandakuru Post, PTM Mandalam, Chittoor District (A.P). But he is residing in the Bengaluru address stated by him in his affidavit since few years. Therefore he has claimed that, there is no service of the legal notice upon him.
44. To corroborate this defence version, D.W.1 has produced his Aadhar card, Voter I.D. card and family Ration Card as per Ex.D.1 to D.3 respectively.
45. However, it is interesting to note that, the Accused has admitted that, the summons that was issued to him by this court had been received by his relatives and thereafter to him, through them and according to him, his relatives had received the summons from Nandini Milk Parlor situated in Jayanagar 3rd Block, Bengaluru. He has also admitted that, it is the same address, which has been shown as the 1st address in the cause title of the complaint.
20 C.C.No.7778 /2016 J46. It is interesting to note that, though the Accused has denied that, he was working under his brother-in-law Sriramulu in the same address, it is elicited from him that, he used to work in the said address as and when he was directed to work in the said address by this brother-in-law Sriramulu.
47. With these admissions, it goes to show that, in so far as the legal notice caused to the Accused to his native place address, which is shown as his permanent address, there is no dispute on the part of the Accused that, the said address is his correct address and the postal shara to the effect that, "Refused", though has been denied by the Accused, the same cannot be seriously considered by this court in view of the fact that, he has indirectly admitted the service of the legal notice to his residential address of Bengaluru, by admitting to the suggestion that, the summons that was sent to him to the same address came to be duly served upon him, through his relatives.
48. Therefore without dwelling into the said aspect at length, this court has no hesitation to conclude that, the Accused has made an unsuccessful attempt by claiming that, there is no service of the legal notice on him.
21 C.C.No.7778 /2016 J49. Moreover, the position of law in this regard is now well settled as per the decision of the Hon'ble Apex Court in the case of CC Alavi Haji Vs., Palapetty Muhammed and ano., reported in 2007 AIR SCW 3578, wherein it is clearly held that:-
"The drawer of the cheque is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court in pursuance of the service of summons on him and in such situation, his defence of non-service of the legal notice cannot be available to him".
50. In view of the aforesaid cited decision, which is aptly applicable to the case on hand, the case of the Complainant cannot be doubted, solely on the technical ground of the alleged non-service of the legal notice raised by the Accused.
51. Now coming to the case of the Complainant on merits, the Accused has also serious disputed the financial capacity of the Complainant, so as to have allegedly advanced a huge loan of Rs.12 Lakhs to him.
22 C.C.No.7778 /2016 J52. In this regard, it is pertinent to note that, as per the well settled position of law, whenever the financial capacity of the Complainant is disputed by the Accused, the same becomes a relevant factor, which needs to be proved by the former (Complainant) beyond reasonable doubt.
53. In this regard, it is not in dispute that, the Complainant is doing the business of Nandini Milk Products since 7 to 8 years and that, he has lent the loan of Rs.12 Lakhs to the Accused for his business purpose on 15.6.2015 by way of cash. The source of funds as on 15.6.2015 claimed by the Complainant is that, he had kept Rs.8 Lakhs at home and there was Rs. 3 Lakhs in his account and Rs.1 Lakh in the account of his wife.
54. To substantiate this contention, the Complainant has produced the certified copy of the sale deed dated:
19.12.2014 at Ex.P.9, which admittedly is in the name of his wife.
55. It is seen that, the recital of this document goes to show that, the wife of the Complainant is said to have received the sale consideration of Rs.13,20,000/= from the concerned purchaser, which, she claims to have received by 23 C.C.No.7778 /2016 J way of DD dated:- 18.12.2014 drawn on the State Bank of Patiala, Yalahanka New Town Branch, Bengaluru.
56. In this regard, during his oral evidence, the Complainant has claimed that, the DD amount of Rs.13,60,000/= as recited in the sale deed at Ex.P.9 was deposited to the account of his wife.
57. Though initially, the Complainant had not produced any documentary proof in this regard, subsequently when the same was questioned to him, he has produced the Bank Passbook of his wife as per Ex.P.10. Admittedly, there are no relevant entries found in Ex.P.10 and P.11 to show the withdrawal of such amounts form the respective amounts. However there are no relevant entries forthcoming in the said two pass books of the wife of the Complainant, which substantiate his claim that, a sum of Rs.13,20,000/= was deposited in her account as on 18.12.2014.
58. In such circumstance, when the Complainant claims that, by virtue of the sale proceeds of Ex.P.9, he could arrange the amount, so as to financially help the Accused, but there is absolutely no proof forthcoming even from the documentary evidence at Ex.P.10 and P.11, the claim of the 24 C.C.No.7778 /2016 J Complainant in this regard creates a serious doubt in the mind of this court.
59. Moreover, the Complainant has clearly admitted that, except the document at Ex.P.9, he has not produced the statement of accounts either him or of his wife.
60. No doubt, subsequent to his cross-examination in this regard, he has produced even his Bank Passbook as per Ex.P.12 through the Accused and the Bank Passbook of him as per Ex.P.13 and his Statement of Accounts as per Ex.P.14.
61. It is pertinent to note that, by relying upon his Bank Passbook at Ex.P12 and the relevant entry in at as per Ex.P12(a) which are marked through the Accused in his cross-examination, the Complainant has tried to elicit from the former that the payment of Rs.50,000/= has been made by the latter to him. However the explanation offered by the Accused to the same is that, the same has been paid by the Complainant to him not for his personal purpose, but for his business purpose.
62. It is interesting to note that, when the Accused has given such explanation, the same is not disputed by the Complainant.
25 C.C.No.7778 /2016 J63. Moreover in the light of such explanation offered by the Accused, when the document at Ex.P12 is observed by this court, then it reveals that, it is not only through entry dated 11.6.2013, but through various entries in the said document viz., 18.4.2012, 13.7.2012, 8.9.2012, 10.10.2012, 22.12.2012, 9.2.2013, 21.3.2013, 4.6.2013, 12.5.2014 and 10.9.2014, the transaction between the Complainant and D.W.2 is forthcoming. This would also clearly demonstrate the defence of the Accused that, there existed business transaction only between the Complainant and Sriramulu (D.W.2).
64. Further, it is seen that, by relying upon the statement of accounts at Ex.P.14, the Complainant has introduced a new claim in his case, by pointing out to the entry dated:- 29.4.2015, as per which, a sum of Rs.10 Lakhs has been withdrawn by him through his self cheque. However, it was never the claim of the Complainant that, he had withdrawn Rs.10 Lakhs from his account solely for the purpose of the helping the Accused. Therefore this would clearly amount to improvement in the case of the Complainant, thereby raising a serious doubt about his case.
26 C.C.No.7778 /2016 J65. It is interesting to note that, as per the version of the Complainant, as elicited from him in his cross-examination that, he had withdrawn Rs.1 Lakh, from the account of his wife and Rs.3 Lakhs from his account. However, the Bank Passbooks at Ex.P.10 and P.11 do not disclose about any such transaction as claimed by the Complainant.
66. It is further pertinent to note that, as per the case of the Complainant, he has alleged to have lent the loan to the Accused with an intention to help him for his business purpose.
67. It is seen that, as per the complaint averments, the Accused is alleged to have borrowed the loan of Rs.12 Lakhs from the Complainant, promising to repay the same within 4 months with interest at the rate of 2% p.m. and as per the pleading, the Accused is said to have issued the cheque in dispute to the Complainant, after the lapse of the stipulated period of time and that after the repeated requests and demands made by the Complainant.
68. Moreover, the purpose of loan, as per the pleading of the Complainant was for the business purpose and also for the repayment of the personal debts of the Accused.
27 C.C.No.7778 /2016 J69. However, the Complainant has contradicted in this regard by claiming in his cross-examination that, the Accused had borrowed the loan amount of Rs.12 Lakhs from him for the purpose of paying the deposit to take Nandini Mil Parlor agency, so as to purchase the vehicle and to clear his personal debts.
70. However, these purposes which are put forth by the Complainant in his cross-examination are clearly contradictory to the ones pleaded by the Complainant earlier.
71. Moreover, when the Complainant claims to have advanced such huge loan amount to the Accused, then it is obvious that, he would have enquired or he would have satisfied himself with regard to the repayment capacity of the Accused, in case, he was supposed to have lent such huge loan amount.
72. However, the Complainant claims to be too generous, in not even knowing about the source of income of the Accused from his business, but inspite of it, he claims that, he lent the loan a huge loan of Rs.12 Lakhs to the Accused only against a cheque collected from him and that 28 C.C.No.7778 /2016 J too without having informed about his alleged lending of Rs.12 Lakhs to the Accused to the uncle of the latter Sriramulu.
73. However, in this regard, the Complainant has contradicted by claiming that, he has lent the loan to the Accused on his business guarantee and out of trust.
74. However, when the Complainant himself has claimed at one place that, he does not know about the source of income of the Accused from his business, while at the other place, he claims that, he has lent a huge loan of Rs.12 Lakhs to the Accused on his business guarantee, this contradictory claim made by the former (Complainant) would also create a serious doubt about his case.
75. Moreover, for the first time, in his cross- examination, the Complainant has also claimed that, he has lent the loan to the Accused in his house and that at that time the Accused, he and his friend by name Mohan were present. But it is seen that, though his case is seriously disputed by the Accused, the Complainant has not made any effort at least to examine the said Mohan as a witness in this 29 C.C.No.7778 /2016 J case. Therefore, the omission of the Complainant in this regard, would also create a serious doubt about his case.
76. Now coming to the defence version of the Accused, it is not in dispute that, the Accused was a salesman, who was supplying the Nandini Milk Products to the Milk Parlours and he was working under his uncle DW.2. Though the Complainant denies that, the Accused was working on salary basis with his uncle, the Accused has probabalised his defence version with regard to the same by examining his uncle as DW.2.
77. No doubt there are minor contradictions in the evidence of the DW.2, however, when the Complainant has clearly admitted that, it was DW.2, who was a sub-agent under him and the Accused, being related to D.W.2, was working under D.W.2, the defence of the Accused that towards the security purpose, he had given the cheque in dispute to the Complainant cannot be disbelieved by this court.
78. Moreover, it is elicited from the Accused in his cross-examination that, on some occasions, he used to purchase the Milk products worth Rs.1 Lakh per day from 30 C.C.No.7778 /2016 J the dairy for the purpose of selling them on behalf of Sriramulu and that on such occasions, he used to take cash for such products on the same day. In such circumstance, the suggestions put to the Accused by the counsel for the Complainant itself is sufficient to hold that, there existed business transaction between the Complainant and D.W.2, in respect of which, the Accused was only a salesman and he had no independent business interest with them.
79. Therefore, it might be obvious that there was necessity for the Accused to offer some guarantee for the products that he used to purchase from the dairy and thereafter sell them to the retailers. Therefore, the claim of the Accused that, in the usual business practice, he had given his cheque to the Complainant only for the purpose of security cannot be doubted by this court.
80. Therefore, it is clear that, when the defence version of the Accused is corroborated with the evidence of D.W.2, there is no reason for this court to doubt his defence version.
81. It is also pertinent to note that, when the Complainant has clearly admitted that, except the cheque in dispute, he has no other documentary proof in respect of his 31 C.C.No.7778 /2016 J alleged loan transaction with the Accused, then it is highly impossible to believe his version that, he would have parted with a huge loan of Rs.12 Lakhs to the Accused, about whom he has no personal knowledge and he does not even know about the details of the family background of the Accused.
82. Moreover, when the Complainant has specifically claimed that, the Accused, who is related to D.W.2 had approached him, seeking financial assistance to the tune of Rs.12 Lakhs, then claims that, he proceeded to part away with a huge loan of Rs.12 Lakhs to the Accused, without even informing D.W.2, this circumstance would also make the case of the Complainant a highly doubtful one.
83. It may not be out of place to observe that admittedly, neither the Complainant nor his wife, who is an income tax assessee, admittedly has not disclosed about the alleged loan transaction in his/her I.T. Returns. Therefore, if the Complainant or his wife had really paid any amount to the Accused as loan, then obviously, they would have shown the said amount in his/her I.T.Returns. However, the omission on their part in this regard would also create a doubt in the mind of this court about the case of the Complainant.
32 C.C.No.7778 /2016 J84. Therefore, viewed from any angle, it goes to show that, the Complainant has miserably failed to prove his financial capacity to lend a huge loan of Rs.12 Lakhs, as well as his alleged lending of Rs.12 Lakhs to the Accused and he has failed to prove his case beyond reasonable doubt. In such circumstance, by taking into consideration, the serious omissions, contradictions, improvements and doubtful circumstances in the case of the Complainant, undoubtedly the benefit of such doubtful circumstance/s needs to be extended in favour of the Complainant. Hence, I have no hesitation to hold that, the Accused has successfully rebutted the presumptions available in favour of the Complainant u/Sec. 118 and 139 of the N.I.Act. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-conferred u/Sec. 255(1) of the Cr.P.C. the Accused is hereby acquitted of the offence punishable u/Sec.138 of Negotiable Instruments Act.
His bail bond stands discharged.
The cash security of Rs.10,000/=, which is deposited by him vide order dated 18.10.2016 is ordered to be 33 C.C.No.7778 /2016 J refunded to him (if not lapsed or forfeited) after the expiry of the appeal period.
(Dictated to the Stenographer, transcript thereof is computerized by her, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 20th day of November, 2018).
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:-
P.W.1 : Sri.Y.C.Mariswamy;
2. List of documents exhibited on behalf of the Complainant:-
Ex.C-1 : Original Cheque;
Ex.C-1(a) : Signature of the Accused;
Ex.C-2 : Bank Memo;
Ex.C-3 : Office Copy of the Legal Notice;
Ex.C-4 : Returned Legal notice;
Ex.C-5 : Postal Envelope;
Ex.C-6 : Postal Receipt;
Ex.C-7 : Postal Acknowledgement;
Ex.C-8 : Office copy of the complaint to the Postal
Authority.
Ex.P-9 : The certified copy of the Sale Deed dated:
19.12.2014;
Ex.P.10 and : The Pass Books of the wife of the
P.11 Complainant;
Ex.P12 : Bank Passbook of the Complainant;
(Marked through D.W.1)
Ex.P12(a) : Relevant entry dated 11.6.2013;
(Marked through D.W.1)
34 C.C.No.7778 /2016 J
Ex.P.13 : The Pass Book of the Complainant;
Ex.P.14 : Statement of Accounts of the
Complainant.
3. List of witnesses examined on behalf of the Accused:-
D.W.1 : Sri.Sreenivasulu; D.W.2 : Sri.Sriramulu;
4. List of documents exhibited on behalf of the Accused:-
Ex.D1 : Aadhar Card;
Ex.D2 : Voter ID card;
Ex.D3 : Ration Card.
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.
35 C.C.No.7778 /2016 J
20.11.2018
Judgment pronounced in the open court
vide separate order.
ORDER
By exercising the power-conferred
u/Sec. 255(1) of the Cr.P.C. the Accused is hereby acquitted of the offence punishable u/Sec.138 of Negotiable Instruments Act.
His bail bond stands discharged.
The cash security of Rs. 10,000/=, which is deposited by him vide order dated 18.10.2016 is ordered to be refunded to him (if not lapsed or forfeited) after the expiry of the appeal period.
XVI ACMM, B'luru.