Bangalore District Court
Sri.Siddappa M.S vs Sri.Gurudatta Puranic.T.V on 22 August, 2016
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 22nd day of August 2016
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.17670/2014
Complainant : Sri.Siddappa M.S,
S/o.Siddlingaiah,
Aged about 54 years,
R/at. Vasanth Pura,
Subramanyapura Post,
Bengaluru-61.
(Rep. by Sri.Shashidhar.K.N.,
Adv.,)
- VS -
Accused : Sri.Gurudatta Puranic.T.V.
Father name not known,
Major in Age,
R/at.No.11, Skanda Nilya,
Siddi Vinayaka Temple
Backside,
Bikasipura main Road,
Bengaluru.
(Rep. by Smt.B.S.Nagamani.,
Adv.,)
2 C.C. No.17670/2014
Case instituted : 28.5.2014
Offence complained : U/s 138 of N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 22.8.2016
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 himself are well known to each other from the past several years and based on the said relationship, in the year 2013, the Accused had requested for a hand loan of Rs.6,50,000/- from him for his urgent family commitments and borrowed a debt of Rs.6,50,000/- from him assuring that, the said sum would be repaid by him within 6 to 8 months.
3. Even after the lapse of the said period, the Accused has not paid the amount to him and has been postponing the same by giving the one or the other 3 C.C. No.17670/2014 reason and after several persistent demands, towards the discharge of the legally enforceable debt and liability, the Accused has issued the following cheques:-
a. Cheque bearing No.946662 dated 10.3.2014 drawn on the State Bank of India, ISRO Layout Branch, Bengaluru-78 for Rs.3,25,000/-.
b. Cheque bearing No.946663 dated 24.3.2014 drawn on the State Bank of India, ISRO Layout Branch, Bengaluru-78 for Rs.3,25,000/-.
4. The cheque bearing No.946662 dated 10.3.2014 drawn on the SBI, ISRO layout Branch, Bengaluru for Rs.3,25,000/-, when presented by him for collection, to his shock and surprise, the said cheque got dishonoured for the reason "Funds Insufficient" vide endorsement dated 25.3.2014. After the receipt of the said information, he got issued legal notice dated 15.4.2014 to the Accused intimating to him about the dishonour of the cheque and called upon him to make the payment of the amount covered under the said cheque within 15 days from the date of the receipt of the notice by RPAD and courier.
4 C.C. No.17670/20145. The notice issued by the Complainant through RPAD was duly served upon the Accused. Inspite of the same, till date, the Accused has not complied with the demand made in the notice.
6. The Complainant submits that, the dishonour of the cheque has been malifide, 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 Negotiable Instruments Act.
7. The pre-summoning evidence was led by the Complainant on 7.7.2014. Prima-facie case was made out against the Accused and he was summoned vide order of the same date.
8. The Accused appeared before the Court on 28.2.2015, the substance of the accusation has been read over to him, he has pleaded not guilty and claimed the trial.
9. In his post-summoning Complainant examined himself as PW1 and filed his affidavit, wherein he has reiterated the averments made in the complaint. P.W.1 5 C.C. No.17670/2014 has also relied upon the following documentary evidence:-
Ex.P1 is the disputed cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank memo as per Ex.P2, the office copy of the legal notice as per Ex.P3, the postal receipt as per Ex.P4, the postal courier receipt as per Ex.P5, the postal acknowledgement as per Ex.P6 and the complaint as per Ex.P7.
10. The statement of the Accused under Sec.313 of Cr.P.C., has been recorded on 20.2.2016.
11. In Defence evidence, the Accused examined himself on Oath under Sec.315 of Cr.P.C., as DW1.
12. In his evidence, DW1 has deposed that, he does not know the Complainant and that he had issued the disputed cheque of this case and that of C.C.No.17672/14 to his father-in-law Sri.Niranjan as blank cheques in view of the ill-health of the former and for the purpose of his medical treatment in the year 2013.
6 C.C. No.17670/201413. D.W1 has been cross-examined by the learned counsel for the Complainant, in which it is elicited from the mouth of DW1 that, his father-in-law is a retired Government servant getting monthly pension and that according to him, he had issued his two cheques for the purpose of the surgical expenses of his father-in-law in the Rajarajeshwari Hospital, which was about Rs.1,00,000/- to Rs.1,50,000/- in the year 2014. According to him, he had issued the said cheques in order to see that, his father-in-law could withdraw the amount at the time of his necessity towards his medical expenses. According to him, he came to know from his father-in-law that, the latter had taken Rs.1,00,000/- from the Complainant for the purpose of meeting his medical expenses. D.W.1 has admitted the suggestion that, the signature at Ex.P1(a) is his signature and he has also admitted the service of the legal notice upon him. It is further admitted by DW1 that, he has not produced any documentary evidence to show that, his father-in-law was suffering from ill-health and that they have spent the amount towards the surgery of his father- in-law. However DW1 has pleaded ignorance to the question, as to, if, he has knowledge about the amount 7 C.C. No.17670/2014 which has been repaid by his father-in-law to the Complainant, but he has stated that, he has receipt to show that, about 2 months back his father-in-law had deposited Rs.25,000/- to the account of the Complainant. However DW1 has not produced any such document before the Court. Further it is admitted by DW1 that, even after the service of the legal notice upon him by the Complainant he has not given any reply notice.
14. Final arguments were advanced at length by the learned counsel for the Complainant and also by the learned counsel for the Accused.
15. The learned counsel for the Complainant has prayed for the conviction of the Accused on the ground that, the signature on the cheque in question has been admitted by the Accused and the Accused has not denied the service of the legal notice and he has taken three inconsistent defences and he has failed to examine his father-in-law or mother-in-law in order to prove that, his father-in-law had undergone surgery at the relevant point of time.
8 C.C. No.17670/201416. On the other hand the learned counsel for the Accused has prayed for the acquittal of the Accused on the ground that, the Complainant has taken total inconsistent stands and the Bank statement produced by the Complainant shows that, he had no financial capacity to prove that, he has lent the loan to the Accused and there is no entry in the Bank statement of the Complainant in order to show that, he had withdrawn Rs.6,50,000/- from his account and further the Complainant has admitted that there is difference in the signature and the other writings on Ex.P1 and there is no document by PW1 to prove that, he had withdrawn the amount from his account for the purpose of the alleged lending to the Accused.
17. I have considered the submissions and perused the record carefully.
18. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Section 138 Negotiable Instruments Act are:-
9 C.C. No.17670/2014(i) Drawing up of a cheque by the Accused towards payment of an 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 notice under the proviso (b) to Sec.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.
19. 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".
20. Also Sec.118 of the Negotiable Instruments Act states:-
10 C.C. No.17670/2014"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."
21. Thus, the Act clearly lays down 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.
22. 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.
23. 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.
24. The first defence raised by the Accused in this case is that, the Complainant has no financial 11 C.C. No.17670/2014 capacity so as to allegedly lend a loan of Rs.6,50,000/- to the Accused.
25. In this regard it is pertinent to note that, during the cross-examination of PW1, it is elicited from him that, he is a flower vendor, having a monthly income of about Rs.2,000/-. His son is working as a driver and he has admitted that after performing the marriage of his daughter, he was in financial difficulties and thereafter he was maintaining his family from out of his earnings only. However according to him, he had sold a land of 1 acre, which was given to him by his father situated at Harohalli and having sold the same, after spending some amount, he had kept Rs.7,00,000/- in his Bank account, out of which he has allegedly lent Rs.6,50,000/- to the Accused. However when he has been questioned, as to, if, he could produce the documents pertaining to the same, he has come up with the answer that, there is only a sale agreement and there is no sale deed in respect of the said property. However PW1 has deposed that, he does not have even the copy of the said sale agreement and according to him, he had kept the advance sale consideration of Rs.9,00,000/- in his account. Further according to him, he has lent the amount to the Accused 12 C.C. No.17670/2014 by withdrawing same from his Bank account, but he cannot say the date on which he had withdrawn the amount from his Bank account. In this regard, it is pertinent to note that, though during the course of arguments, the leaned counsel for the Complainant has produced the statement of account of the Complainant for the period from 1.12.2011 to 31.12.2011, in which by entry dated 1.12.2011 an amount of Rs.5,00,000/- has been deposited, but finally the balance amount sent on 27.7.2015 shows only Rs.2,091.76/-. However, it is the case of the Complainant that, the Accused has availed the hand loan of Rs.6,50,000/- from him in the year 2013. There is no mention of either the date or month of the alleged lending of the loan in the legal notice at Ex.P3 or in the compliant or in the affidavit of PW1. Therefore even if the documents produced by the Complainant during the course of his arguments i.e., his statement of account is taken into consideration by this Court, it does not help the case of the Complainant, since it does not disclose that, in the year 2013, the Complainant was in possession of the requisite funds, so as to allegedly help the Accused.
13 C.C. No.17670/201426. The next defence raised by the Accused is that, he had issued the disputed cheque along with another cheque as blank cheques to his father-in-law Sri.Niranjan for the purpose of meeting his medical expenses.
27. In this regard though during the cross- examination of PW1, the Accused has denied that, the signature at Ex.P1(a) is not his signature, during his cross-examination DW1 has admitted that, the same is his signature. Further it is pertinent to note that, even though the Complainant has claimed that, the Accused had collected Rs.6,50,000/- from him by cheating him since he is an ignorant person and thereby misused the sale consideration amount of the Accused derived by him by selling his land in Harohalli, there is no reliable and cogent proof by the Complainant in order to prove the same.
28. Now before considering the evidentiary value of the defence of the Accused, it is a well settled principle of law that, the standard of proof required to be discharged on the part of the Complainant is very high when compared to that of the Accused. Therefore before 14 C.C. No.17670/2014 deciding about the sufficiency or otherwise of the rebuttal evidence led by the Accused, it could be seen that, the Complainant has failed to discharge the initial burden of proving the alleged lending of Rs.6,50,000/- to the Accused and moreover he has utterly failed in proving his financial capacity before the Court. In such circumstance this Court is of the view that, the case of the Complainant it highly doubtful and not proved beyond reasonable doubt.
29. In this regard, I place reliance upon the following decisions:
1. In Smt.H.R.Nagarathna Vs., Smt.Jayashree Prasad, reported in 2009(4) Kar.L.J.26, wherein it has been held that:-
"From the complaint averments it is clear that the complainant failed to prove the lending and hence the existence of the legally enforceable debt is not proved beyond reasonable doubt".15 C.C. No.17670/2014
2. In S.Thimmappa Vs., L.S.Prakash, reported in 2010(5) KCCR 3397, wherein it has been held that:-
" It is the drawee of the cheque to prove the existence of debt or liability".
3. In Krishna Janardhan Bhat Vs., Dattatreya G.Hegde, reported in 2008 AIR SCW 738, wherein it has been held that:-
" The existence of the legally recoverable debt is not a matter of presumption U/s.139".
4. In Rajendra Pangam Vs., Paresh B.NaiK and others, reported in Laws (BOM) 2015 (4) 39, In this said case, there was no evidence forthcoming so as to prove the alleged lending of amount by the complainant therein and there was also no evidence to show that the complainant was having sufficient amount so as to support the loan of Rs.75,000/- somewhere in June 2008. In such circumstance the Hon'ble High Court of Bombay 16 C.C. No.17670/2014 has allowed the appeal and restored the judgment of acquittal.
5. In Rangappa Vs., Mohan, reported in (2011) 1 SCC 184, wherein it has been held that:-
" Even in the present case the standard of proof for raising the presumption U/s.139 of the N.I. Act by the accused is that of "Preponderance of Probabilities" and therefore if the accused is able to raise an probable defence, which creates doubt about the existence of a legally enforceable debt or liability, the presumption can fail".
6. In S.K.Mittal Vs., Saree Mahal Reg, reported in 2012 (2) DCR 384, wherein it has been held that:-
" The standard of proof to discharge the burden shifted on the accused to rebut the presumption raised by the court U/s.139 of the N.I. Act is not the 17 C.C. No.17670/2014 same as upon prosecution to prove the case".
7. In Veerayya Vs., G.K.Madivalar, reported in 2012(3) KCCR 2057, wherein it has been held that:-
" When the complainant failed to prove that he had bank balance as claimed by him on the date he has alleged to have advanced the loan and his civil suit was dismissed as not proved and mere issuance of cheque is not sufficient, unless it is shown that the said cheque was issued towards the discharge of a legally recoverable debt and when the complainant's financial capacity is questioned, he has to establish his financial capacity".
8. In Ramdas Vs., Krishnanand, reported in 2014(3) Crimes 291, where in it has been held that:-
18 C.C. No.17670/2014"When the complainant's financial capacity is denied and disputed, it becomes a relevant factor".
9. In Shiva Murthy Vs., Amruthraj, reported in ILR 2008 KAR 4629, wherein it has been held that:-
"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 U/s.139, the court ought to consider the existence of the legally enforceable debt. It is only after satisfying that the complainant has proved the existence of the legally enforceable debt or liability, the courts could have proceeded to draw presumption u/s.139 of the N.I.Act and thereafter find out as to whether or not the accused has rebutted has rebutted the said presumption".
30. Thus by applying the principles of law enunciated in the afore-cited decisions to the facts of the 19 C.C. No.17670/2014 case on hand, it could be concluded that, the Complainant has failed to prove the alleged lending and his financial capacity as on the date of the alleged transaction and thereby he has failed to prove the existence of the legally enforceable debt in his favour by the Accused and as such he has failed to discharge the initial burden cast on him before the presumption under Sec.118 and 139 of the N.I Act could be drawn in his favour. On the other hand, the Accused has successfully rebutted the presumptions available in favour of the Complainant by probabalising his defence. In view of the aforesaid reasons and discussions, I proceed to pass the following: -
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of Negotiable Instruments Act.
His bail bond and surety bond stands cancelled.
(Dictated to the stenographer, transcript thereof is computerized and printout taken by her, verified, and then pronounced by me in the open Court on this the 22nd day of August 2016).
(SARASWATHI.K.N), XVI Addl.CMM., Bengaluru City.20 C.C. No.17670/2014
ANNEXURE
1. List of witnesses examined on behalf of the Complainant:
PW.1 : Siddappa M.S
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 : Bank memo; Ex.P-3 : Copy of the Legal Notice; Ex.P-4 : Postal receipt; Ex.P-5 : Courier receipt; Ex.P-6 : Postal acknowledgment; Ex.P-7 : Complaint.
3. List of witnesses examined on behalf of the Accused:
DW-1 : Gurudatta Puranic T.V
4. List of documents exhibited on behalf of the Accused:
- Nil -
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.21 C.C. No.17670/2014
22.08.2016 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of Negotiable Instruments Act.
His bail bond and surety bond stands cancelled.
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.