Bangalore District Court
Sri.D.G.Vasantha vs S/O Gowrappa on 28 May, 2018
IN THE COURT OF THE LXII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY - CCH.NO.63
Dated this the 28th day of May, 2018
PRESENT
SRI. PARAMESHWARA PRASANNA.B,
B.A,L.L.B.,
LXII Addl.City Civil & Sessions Judge,
Bengaluru City.
Crl. Appeal No.877/2016
APPELLANTS:/ Sri.D.G.Vasantha,
ACCUSED S/o Gowrappa,
Aged about 46 years,
R/at No.73, 19th Main,
Kurubarahalli (J.C.Nagar)
Near Basaveshwara Nagar,
Bangalore-560 086.
(By Sri.C.Prasanna Kumar-
Advocate)
-Vs-
RESPONDENT:/ Sri. Anantha Padmanabha,
COMPLAINANT S/o P.Hanumaiah,
Aged about 43 years,
R/at No.3166, "Lakshmi Vila"
3rd Main, Pattegarapalaya Main
Road, Kanakanagar, Vijayanagar,
Bangalore-560 079.
---
2 Crl.A.No.877/2016
JUDGMENT
The present criminal appeal is preferred by the Appellant/Accused under Section 374(3) of Cr.P.C against the Judgment dated 15-07-2016 passed in C.C.21598/ 2012 by the learned XIX Addl.Chief Metropolitan Magistrate, Bengaluru, wherein the said trial Court convicted the appellant for the offence punishable U/s.138 of Negotiable Instrument Act and sentenced him to pay a fine of Rs.4,00,000/- and in default to pay the fine to undergo simple imprisonment for a period of 6 months and out of fine amount Rs.3,95,000/- has been ordered to be paid as compensation to the complainant and balance amount of Rs.5,000/- shall be forfeited to state.
2. For the sake of convenience, the parties are referred to as per their litigative status before the trial court. The appellant is the accused and the respondent is the complainant as per their original ranks before trial Court.
3. The Respondent/complainant filed the complaint against the appellant before the trial Court for the offence punishable under Section 138 of N.I.Act. Based on the said complaint, cognizance was taken, sworn statement of the 3 Crl.A.No.877/2016 complainant was recorded and the case was registered against the accused in C.C.No.21598/2012 for the offence punishable under Section 138 of N.I.Act. Upon service of summons, the accused appeared through his counsel and plea of the accused was recorded wherein and the accused pleaded not guilty.
4. During the course of trial in order to prove the case of the complainant, the complainant got examined himself as Pw.1 and got marked documents as Exs.P.1 to Ex.P.9. Accused when examined U/s.313 of Cr.P.C denied all incriminating circumstances appearing in evidence against him. The accused has led his defence evidence as DW.1, but not marked any documents in his defence.
5. After hearing both the parties, the Court below convicted the accused for the offence punishable U/s.138 of N.I.Act and sentenced him as aforesaid. Being aggrieved by the said conviction and sentence of the trial court, the appellant/accused has filed this criminal appeal by challenging the Judgment on the following grounds:
1) The impugned judgment and order of conviction and sentence passed by the learned Magistrate is illegal, arbitrary, perverse and capricious and the 4 Crl.A.No.877/2016 same against the facts, material on record and hence it is liable to be set aside.
2) That the learned Magistrate has not assigned proper and acceptable reasons while passing the impugned judgment and order of conviction and sentence and as such the accused is liable to be acquitted.
3) The learned Magistrate miserably failed to consider the fact that the complainant has given contradictory statements in his oral testimony compared to the complaint averments which resulted in miscarriage of justice.
4) The learned Magistrate further failed to appreciate the defence evidence of the appellant that out of 7 blank Cheques issued by the accused as security, the complainant by misusing one of the said Cheque filed false complaint before trial Court.
5) The learned Magistrate ought to have considered the fact that on receipt of statutory notice dated 16.8.2012 got issued by the complainant through his counsel, the accused forwarded a detailed reply on 5.9.2012 denying the notice averments.
6) The learned Magistrate failed to consider the fact that there was contradictory statements of the complainant with regard to lending of alleged 5 Crl.A.No.877/2016 amount to the accused and also failed to consider the fact that the allegation of the complainant is that the accused had borrowed money for the purpose of running a chit fund, on the contrary during cross-examination and it was suggested to him that the loan was borrowed to invest in the film production.
7) The learned Magistrate has not at all given any finding with regard to existence of legally enforceable debt and there is no whisper in his entire Judgment with regard to the fact that the accused has issued Cheque towards discharge of his legally enforceable debt.
8) The learned Magistrate ought to have considered that the complainant has failed to discharge his burden in the facts and circumstances of the case as the complainant has made contradictory statements during his cross-examination.
9) The learned Magistrate has not appreciated the evidence adduced by the accused and also the admissions of respondent in his cross-examination regarding misuse of Cheque in question though the complainant admitted that he has filled up the contents of Cheque.
6 Crl.A.No.877/2016Inter-alia on these grounds, the appellant seeks for allowing of this criminal appeal and to set-aside the impugned Judgment and to acquit the appellant/accused.
6. After admitting of this criminal appeal, the notice was issued to the respondent. The respondent appeared through his counsel. The lower Court records secured.
7. Heard arguments of both the counsels. I have carefully perused the entire trial court records pertaining to this case and the impugned judgment.
The learned counsel for the Appellant in support of his case has relied upon the following citations :
(1) 2008 CRI.L.J. 1172 (Krishna Janardhan Bhat V. Dattatraya.G.Hegde) "(A) Negotiable Instruments Act (26 of 1881). S.139 - Presumption under Section 139 merely raises presumption in favour of holder of cheque that same has been issued for discharge of any debt or other liability - Existence of legally recoverable debt - Is not a matter of presumption under S.139.
(B) Negotiable Instruments Act (26 of 1881), Ss.138, 139 - Dishonour of cheque -
Defence - Proof - Accused not required to step into witness box - He may discharge his burden on basis of materials already brought on record
- Question whether statutory presumption 7 Crl.A.No.877/2016 rebutted or not - Must be determined in view of other evidences on record."
(2) ILR 2008 KAR 3635 [K.Narayana Nayak Vs. Sri.M.Shivarama Shetty] " NEGOTIABLE INSTRUMENTS ACT, 1881 0 Section 138 - Offence under - Acquittal -
Complainant's Appeal - Cheque issued not for discharge of any existing debt, but issued as a security for advancing loan - Presumption - HELD, That the cheque issued by the respondent to the appellant is only as a security and not for discharge of any existing debt. So far as the presumption as to issuance of the cheque for consideration and in discharge of debt, the respondent/accused need not disprove the appellant's case in its entirety. He can discharge his burden on the basis of preponderance or probabilities through direct or circumstantial evidence, for which he can also rely on the evidence adduced by the complainant -
Evidence on record clearly establishes that the cheque was not issued towards discharge of any legally enforceable debt, but the blank signed cheque was issued as security - Order of acquittal is Justified."
(3) ILR 2008 KAR 4629 [ Shiva Murthy Vs. Amruthraj] " NEGOTIABLE INSTRUMENTS ACT, 1881 -
SECTION 138 - offence under - Complaint -
Conviction and Sentence - Confirmed in Appeal
- Revision against - Production of additional documents before the Appellate Court - Non- consideration of - Existence of legally enforceable debt - Failure of the complainant to prove - Presumption drawn merely on the basis of the conduct of the accused - Legality of - 8 Crl.A.No.877/2016 HELD , The Courts below more particularly, the Appellate Court before whom the additional documents were produced has nto directed itself in this regard to find out as to whether the complainant has proved the existence of legally enforceable debt. Both the Trial Court and the Appellant Court have mainly proceeded to consider the conduct of the accused. Before considering the conduct of the accused to find out as to whether or not he has been able to rebut the Statutory Presumption available under Section 139, the Courts ought to have considered as to whether the complainant has proved the existence of legally enforceable debt. It is only after satisfying that the complainant has proved existence of legally enforceable debt or liability, the Courts could have proceeded to draw presumption under Section 139 of the N.I Act and thereafter find out as to whether or not the accused has rebutted the said presumption.- Judgment of conviction and sentence are liable to be set-aside - Accused is acquitted."
(4) 2012 CRL.L.J. (NOC) 495(GUJ.) [Dilawarsinh Modubha Zala V. State of Gujarat & Ors.] " Negotiable Instruments Act (26 of 1881), Ss.138, 139 - Dishonour of cheque
- Complainant failed to prove that cheque in question was given towards discharge of existing recoverable debt - Accused was able to rebut presumption u/S.139 and raise probable defence - Acquittal of accused is proper."
(5) AIR 2011 (NOC) 364 (MAD.) [P.Gnanambigai V. S.Krishnaswamy and another] 9 Crl.A.No.877/2016 "Negotiable Instruments Act (26 of 1881), Sc.138, 139 - Dishonour of cheque -
Petitioner had borrowed loan from complainant - Cheque issued by Petitioner was returned by Bank for want of insufficient funds - Plea by petitioner that different inks and different pens were used to fill up cheque - Denial of knowledge by Complainant about contents - Same would lead to reasonable doubt as to whether cheque was issued in circumstance as narrated in complaint - Complainant's case that petitioner was introduced to him through 'M' - 'M' who was fully aware of money transaction between Complainant and Petitioner was not however examined
- Failure of Complainant to give possible explanation for all material discrepancies found in evidence - Courts below passed order of conviction solely by applying presumption clause - Conviction of petitioner is therefore liable to be set aside."
(6) 2009 (4) Crimes 590 (Mad.) [ Yeshpal V. Vijay Kumar] " Negotiable Instruments Act, 1881 -
Section 138 and 139 - Dishonour of cheque - Conviction by courts below -
Revision - Complainant claimed to have lent a sum of Rs.1,85,000 on 29.3.2000 for which cheque in question issued on 19.7.2000 - Defence plea was that cheque had been misused - Presumption under Section 139 of the Act that cheque was issued for discharge in whole or part of a debt or liability - Presumption was rebuttable and degree of proof for rebuttal of such presumption was preponderance of probabilities - Complainant had failed to 10 Crl.A.No.877/2016 produce and prove as to where from he had arranged amount which the advanced as loan - He did not get any document as security for alleged loan - It was enough material to rebut the presumption -
Complainant could not be said to have proved existence of legally enforceable debt or other liability - Conviction was liable to be set aside."
(7) (2008) 1 Supreme Court Cases (Crl) 200 [ K.Prakashan Vs. P.K.Surenderan] " A. Negotiable Instruments Act, 1881 -
Ss. 138 and 139 & 118(a) - Dishonour of cheque - Presumptions under Ss.139 and 118(a) - Nature of - Held, are rebuttable - Further held, burden of proof lying on accused required to be discharged by preponderance of probability while that lying on prosecution to be discharged by proof beyond reasonable doubt - Accused need not step into witness box to discharge his burden - Trial court on detailed analysis of evidence found that accused discharged the burden of proof which lay upon him - But High Court reversed the judgment of trial court holding that accused had not adduced any evidence to establish the specific case set up by him - Held, judgment of trial court being neither perverse nor legally infirm, High Court erred in reversing the judgment of acquittal when two views were possible."
(8) 2012 (3) KCCR 2057 [ Veerayya Vs. G.K.Madivalar] " Held, mere issuance of cheque is not sufficient unless it is shown that said 11 Crl.A.No.877/2016 cheque was issued towards discharge of a legally recoverable debt - When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity -
Judgments of Courts below were set aside
- Petitioner was acquitted of offence under Section 138 of N.I.Act."
(9) 1995 CRI.L.J.560 [Shri Taher N. Khambati V. M/s.Vinayak Enterprises, Secunderabad and others] " Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of cheque -
Complainant - Creditor advancing certain sum and obtaining a signed blank cheque from debtors with a view to make use of it, as a threat for realization of amount -
Cheque cannot be said to be issued voluntarily for discharge of debt or legal liability - Provisions of S. 138, not attracted. Negotiable Instruments -
Dishonour of cheque - Complainant -
Creditor advancing certain sum to debtor and obtain a signed blank cheque with a view to make use of it, for realization of amount - Cheque not issued voluntarily for discharge of debt - Provisions of S.138 not attracted."
The learned counsel for Respondent has relied on the following citation:
2017(3) AKR 365 [C.N.Dinesha V. Smt.C.G.Mallika] "Negotiable Instruments Act (26 of 1881), Ss.118(a), 138, 139 - Dishonour of cheque
- Legally enforceable debt - Complainant establishing her financial capacity to lend 12 Crl.A.No.877/2016 money - Plea taken by accused of tampering of cheque, not established by accused - Presumption in favour of cheque holder that same was issued towards consideration received - Presumption drawn under S.139 towards discharge of legally enforceable debt - Conviction of accused, proper."
I have perused the citations produced by the learned counsel for the Appellant and Respondent.
8. Under these facts and circumstances, the following points arise for the consideration of this Court:
1. Whether the Respondent proves that Appellant issued Ex.P.1 Cheque to him in discharge of legally enforceable debt or liability?
2. Whether the Judgment of conviction and order of sentence passed by the learned XIX Addl.Chief Metropolitan Magistrate, Bengaluru in C.C.No.21598/2012 dated 15.07.2016 is erroneous?
3. Whether there is any necessity for interfering with the aforesaid impugned Judgment of the trial Court?
4. What Order?
9. My findings to the above points are as under:-
Point No.1 - In the Negative;
Point No.2 - In the Affirmative;
Point No.3 - In the Affirmative;
Point No.4 - As per final order for the following:
13 Crl.A.No.877/2016
REASONS
10. POINT NOS.1 TO 3:-
As the Points No. 1 to 3 are inter-related, they are taken together for discussions to avoid repetitions.
The case of the complainant in brief is that, the Complainant and accused are friends as they are working as Film Directors cum Dialogue writers and out of the friendship, the accused approached him for the loan amount of Rs.3,00,000/- to run a chit fund and to earn profit. The complainant by believing the words of the accused, had advanced a total sum of Rs.3,00,000/- by way of cash in installments on different dates in the March of 2010 and after receipt of the loan amount, the accused assured him that he will repay the entire loan amount along with profit and interest within one year. After complainant's repeated requests and demand for repayment of loan, the accused issued his cheque bearing No.669494 dtd 25.7.2012 for a sum of Rs.3,00,000/- drawn on Canara Bank, Kurubarahalli (J.C.Nagar) Branch, Bangalore in discharge of said legally enforceable debt. When the complainant presented the said cheque for encashment through his banker Indian Bank, Prashanthnagar Branch, Bangalore on 25.7.2012 for 14 Crl.A.No.877/2016 encashment the said cheque returned dishonoured with an endorsement "funds insufficient" on 26.7.2012. Thereafter the complainant got issued a legal notice on 16.8.2012 through RPAD and also through courier to the accused by calling upon the accused to make payment of the Cheque amount within 15 days from the date of receipt of notice and the said notice was duly served upon accused on 22.8.2012. The accused after receipt of the legal notice failed to make payment of the cheque amount, but he has sent an untenable false reply on 5.9.2012. The accused knowing fully well that he has not sufficient balance in his bank account only with an intention to cheat the complainant, had issued bogus cheque. Hence according to the complainant, the accused has committed an offence punishable under Section 138 of N.I.Act, for which he has been constrained to file the complaint.
11. In order to prove his case the complainant got examined himself as PW1 and got marked documents as Ex.P.1 to
9. PW1 in his affidavit filed towards examination in chief reiterated the averment made in the complaint.
Ex.P.1 is the cheque, Ex.P.2 is Bank endorsement, Ex.P.3 is Debit voucher, Ex.P.4 is copy of the legal notice, Ex.P.5 is Postal 15 Crl.A.No.877/2016 acknowledgment due card, Ex.P.6 is copy of the reply notice, Ex.P.7 is bank challan, Ex.P.8 is Courier receipt and Ex.P.9 is complaint.
12. P.W.1 during cross-examination stated that he is not an Income tax asesee. He knows the accused for the last 10 to 15 years. He has been working as Film Director and Dialogue Writer. He is having annual income of Rs.3,00,000/-. He claims that he advanced loan of Rs.3,00,000/- to the accused during January, 2010. He stated that accused issued cheque to him on 25.07.2012 in his house. He stated that from his saving he advanced loan to the accused and when the accused issued Ex.P.1-cheque, one Mr.Chandru was present. He stated that accused gave him signed blank cheque and he filled up the cheque as per the instruction of the accused. He stated that accused was financial sound when he obtained the loan. The accused obtained the loan for the purpose of his chit transaction and for production of a film. Subsequently, contrary to his earlier version he deposed that he has given loan to the accused in two installments of Rs.1,50,000/- each and he paid Rs.1,50,000/- in January and another Rs.1,50,000/- to the accused in the month of March, 2010.
16 Crl.A.No.877/2016
13. That in order to substantiate his evidence, the accused got examined himself as D.W.1. Accused in his evidence denied the alleged loan transaction and the issuance of Ex.P.1 Cheque in discharge of legally enforceable debt. Accused stated that he along with Complainant and some other 18 persons formed a Partnership firm in the name and style 'Friends Finance' on 15.05.2011 and each of the member had invested a sum of Rs.5,00,000/- on the said business. That after 15 days from the date of starting of the said firm, there was need for money in respect of said business and as such, on request of the accused the Complainant through other financier got advanced loan of Rs.3,00,000/- to the accused and towards security for the said loan, the Complainant had obtained 07 signed blank cheques from the accused. Within a span of three months the said partnership suffered huge loss and it was shutdown. Thereafter, the accused had repaid Rs.3,00,000/- to the said financier through the Complainant. That subsequently instead of returning the said cheques, the Complainant by misusing one of the said cheque filed false complaint before trial court and the Complainant by misusing another cheque had filed another complaint against the accused in respect of the offence punishable under Section 138 of N.I.Act through his friend one Mr.Kailash, 17 Crl.A.No.877/2016 which was dismissed. Accused in his evidence claims that he has he has not committed any offence. Inter-alia with these contentions, the accused prays for dismissal of the complaint.
14. On the basis of oral and documentary evidence placed by the parties before trial Court, now this Court has to determine whether the complainant has established that Ex.P.1/ Cheque was issued in discharge of the legally enforceable debt and thereby the accused committed the offence punishable under Section 138 of N.I.Act.
15. To bring home the guilt under Section 138 of N.I.Act, the Complainant is bound to discharge the initial burden cast upon him that the cheque was given by the accused in discharge of the legally enforceable liability. In the instant case, no documentary evidence led by the complainant to show the alleged transaction. The complainant in the complaint and in his evidence has given contradictory version regarding the period of borrowal. It is very relevant to note that the date of advancing of loan of Rs.3,00,000/- by the Complainant to the accused has not been mentioned in the complaint. In the complaint it is alleged that the Complainant advanced total amount of Rs.3,00,000/- by way of cash in different 18 Crl.A.No.877/2016 installments on different dates within the month of March, 2010. Whereas in Page-1 of cross-examination portion of his evidence he has stated that he advanced Rs.3,00,000/- during January, 2010 and subsequently in page-2 and 3 of his deposition he stated that he advanced the loan of Rs.3,00,000/- to the accused in two installments of Rs.1,50,000/- each, one in the month of January and another in the month of March, 2010. Though the Complainant claims that he is working as Film Director and Dialogue Writer and earning annual income of Rs.3,00,000/-, he has not produced any documents to prove his alleged occupation. No document is produced by the Complainant to prove his financial capacity to pay Rs.3,00,000/-. In the absence of any evidence placed by the Complainant, it is highly difficult to believe his source of income. In addition to it, except Ex.P.1-cheque in question, there is no other documentary evidence to show that the Complainant had lent Rs.3,00,000/- to the accused and the accused had acknowledged the receipt of the same. No contemporary documents have come into existence. When a substantial amount of Rs.3,00,000/- is lent, it is reasonable to expect that the creditor would insist on the debtor to execute some documents evidencing such transaction. The 19 Crl.A.No.877/2016 absence of any such evidence would create great amount of doubt about the genuineness of the transaction.
16. P.W.1 during his cross-examination itself stated that he had not lent the amount for interest. No prudent man would lend substantial amount of Rs.3,00,000/- without charging any interest. Even the provisions of Section 269-SS of Income Tax Act had not been followed. It is difficult to accept the Complainant's case that he lent Rs.3,00,000/- without charging any interest and that too said amount in cash and not by means of any account payee cheque. Even P.W.1 during his cross-examination admitted that the accused issued blank signed cheque and he filled up the cheque as per instructions of the accused and at that time one Mr.Krishna was present. But, the complainant has not chosen to examine the aforesaid witness Mr.Krishna to prove that as per the instructions of the Accused the Complainant got filled Ex.P.1 cheque. Mere issuance of a cheque itself would not be suffice unless it is shown that the said cheque was issued towards discharge of a legally recoverable debt. In the instant case, as the very advancement of loan of Rs.3,00,000/- by the Complainant to the accused itself is 20 Crl.A.No.877/2016 doubtful, the question of Ex.P.1 cheque being issued towards discharge of debt does not arise.
17. The trial court on the ground that the accused admitted his signature in Ex.P.1 Cheque drawn presumption under Section 118 and 139 of N.I.Act and convicted the accused. But the trial court failed to note that in order to draw a presumption under Section 118 and 139 of NI Act, the Complainant has to establish that he had requisite fund to lend the loan in question.
In the case of John K Abraham Vs Simon C Abraham & another reported in (2014 ) 2 SCC 236 it was held that:
"In order to draw the presumption under Sec. 139 of N.I.Act, the burden lies on the complainant to show that :
(1) He had requisite fund for advancing the loan in question to the accused.
(2) That issuance of cheque by the accused in support of repayment of money advance was true.
(3) That accused was bound to make payment as had been agreed while issuing the cheque in favour of the complainant. "21 Crl.A.No.877/2016
But in the case on hand, no documentary or oral evidence has been placed by the Complainant to show that he had requisite fund for advancing the loan in question to the Accused.
18. It is well settled law that the burden of proof on the accused is not heavy. He need not disprove the prosecution case in its entirety. He can discharge his burden on the basis of preponderance of probabilities through direct or circumstantial evidence, for said purpose he can rely upon evidence adduced by the complainant .
The Hon'ble Surpeme Court in the case of M/s.Kumar Experts vs Sharma Carpet held that:
"The accused in a trial under Section 138 of N.I.Act has two option, he can either show that consideration and debt did not exists or that under the particular circumstances of the case the non existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. In order to rebut the statutory presumption the accused is not expected to prove his defence beyond all reasonable doubt as is expected of the complainant in a criminal case."22 Crl.A.No.877/2016
In the case on hand, materials elicited during cross- examination of P.W.1 shows that consideration and debt did not exist.
The Hon'ble Supreme Court in the case of M.Senguttuvan Vs Mahadevaswamy reported in (2007) 0 Supreme (Kar) 167 has held that :
"Negotiable Instruments Act, 1881-Section 139-Acquittal- Presumption under- Borrowing of money-Date of lending not mentioned either in notice or in complaint- No other records produced to that effect- Held, presumption in regard to cheque is rebutted-It is now for complainant to prove by independent evidence that he has lent money to accused-Acquittal-proper "
In the present case also, the date of lending is not mentioned either in the notice or in the complaint and no other records have been produced by the Complainant in respect of the alleged loan. Moreover, the complainant given contradictory version regarding month of alleged borrowal. As such, in view of the above 23 Crl.A.No.877/2016 precedent, the presumption with regard to the cheque stands rebutted.
19. In the instant case, the trial court has drawn an inference merely on the basis of the conduct of the accused. Before considering the conduct of the accused, the trial court out to have considered as to whether the complainant has proved the existence of legally enforceable debt. The Hon'ble High Court in the case of Shiva Murthy Vs Amruthraj reported in (2008) ILR (Kar) 4629, in para -30 has observed that :
"Both the trial court and the appellate court have mainly proceeded to consider the conduct of the accused. In my considered view, before considering the conduct of the accused to find out as to whether or not he has been able to rebut the statutory presumption available under section 139, the courts ought to have considered as to whether the complainant has proved the existence of legally enforceable debt. It is only after satisfying that the complainant has proved existence of legally enforceable debt or liability, the courts could have proceeded to draw presumption under 24 Crl.A.No.877/2016 section 139 of the NI Act and thereafter find out as to whether or not the accused has rebutted the said presumption".
The Hon'ble Supreme Court in the case of K.Subramani Vs. K.Damodara Naidu reported in 2015 AIR SCW 64 held that, "When legally returnable debt is not proved by the Complainant by establishing his source of income from which alleged loan was made to the accused, the presumption in favour of the holder of the cheque stands rebutted."
In the case on hand, despite of disputing of the source of income of the complainant to lend the loan in question, the Complainant has not established his source of income and as such, in view of the above said decision of the Hon'ble Supreme Court, the presumption in favour of the Complainant stands rebutted.
20. The complainant himself has admitted that he himself has filled up Ex.P.1 Cheque. Since admittedly the contents of the cheque are not filled up by the accused, the defence of the accused that out of seven blank signed cheques issued by him as a security to the Complainant for availing loan from the Financer, one cheque has been misused for filing complaint before trial court appears to 25 Crl.A.No.877/2016 be probable. It is the contention of the Accused that the Complainant by misusing another cheque filed a false complaint through his friend Mr.Kailash in CC.No.29950/16 before 22nd ACMM., and the same came to be dismissed by the said court on 23.04.2015. To prove the same, the accused has produced certified copy of the judgment in CC.No.29950/2014, wherein, the accused has been acquitted in respect of the offence punishable under Section 138 of N.I.Act. It is pertinent to note that the accused has given reply to the legal notice as per Ex.P.6, wherein, he has taken defence that the cheque in question issued as security has been misused by the Complainant. The Complainant has not issued any re-joinder or counter by denying the facts stated in the reply notice.
21. It is relevant to note that the case of the Complainant is required to rest on his own leg and the same cannot be allowed to be bypassed in casual and cosmic manner. The complainant shall however make clear to the court each of the circumstances relied upon by him to establish drawing of the cheque by the accused. The mere fact that the cheque produced in the court came from the possession of the complainant alone will not be suffice to prove the execution. No law allows a court to presume that the cheque which 26 Crl.A.No.877/2016 is produced and marked before the court was handed over and delivered to the accused. The Court at best can say that the cheque was in possession of the Complainant, but under what circumstances it came to the Complainant's possession is to be stated by the Complainant.
22. The complainant has not established his financial capacity to lend loan in question and as such the decision of the Hon'ble High Court reported in 2017(3) AKR 365 relied upon by the respondent is not applicable to be facts of this case.
In view of the facts and circumstances discussed above and the precedents referred above, I am of the opinion that the Complainant has not established the alleged loan and issuance of Ex.P.1 cheque in discharge of legally enforceable debt and issuance of Ex.P.1 Cheque in discharge of legally endorcable debt and as such, I am of the view that the complainant has failed to prove the accused has committed the offence punishable under Section 138 of N.I.Act. Hence, I have answered point No.1 in the Negative
23. Even though the complainant failed to prove the alleged loan transaction and issuance of Ex.P.1/ Chque, the trial Court 27 Crl.A.No.877/2016 wrongly convicted the accused by erroneously drawing a presumption under Section 118 and 139 of N.I.Act. Hence, I am of the considered view that the impugned judgment of the trial court is erroneous and the same is liable to be set aside. Accordingly, I have answered Point No.1 in the negative and Points No.2 and 3 in the affirmative.
24. Point No.4 : In view of the above discussion and my findings on Point No.1 to 3, I proceed to pass the following :
ORDER The criminal appeal filed by the Appellant/ Accused under Sec.374 (3) of Cr.P.C., is hereby allowed.
The Judgment of conviction and sentence dated 15.7.2016 passed by the learned XIX Addl.Chief Metropolitan Magistrate, Bengaluru, in C.C.No.21598/2012 is hereby set aside.
The Appellant/Accused is hereby acquitted for the offence punishable under Section 138 of N.I.Act and the bail bonds executed by the Appellant/Accused stands cancelled.
The trial court is hereby directed to return the amount, if any, deposited before it by the Appellant/Accused in compliance of the order of this court dated 28 Crl.A.No.877/2016 05.08.2016 to the Appellant, after lapse of appeal period.
Send copy of the judgment along with records to the lower court forthwith. (Dictated to the Judgment Writer, transcribed and computerized by her, and then corrected and pronounced by me in the open court on this the 28th day of May, 2018).
(Parameshwara Prasanna.B.) LXII Addl. City Civil & Sessions Judge, Bengaluru City.
29 Crl.A.No.877/201630 Crl.A.No.877/2016