Bangalore District Court
Sundaraiah vs Madhu Setty on 6 November, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 6th day of November - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.5187/2016
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Sundaraiah,
S/o.Late Marigowda,
Aged about 48 years,
R/at 3rd Cross, 1st Main,
Pattegarapalya,
Bengaluru-79.
(Rep. by Sri.M.S.Manjanna, Adv.)
V/S
Accused : Madhu Setty,
S/o.Gangappa,
Aged about 36 years,
R/at. No.10, 1st Main,
16th Cross, SVJ Nagar,
Moodalpalya, Bengaluru-72.
Proprietor of Gangan Group,
having office at No.107,
3rd Main Road, Cauvery Layout,
Nagarabhavi Road, Moodalpalya,
Bengaluru-40.
(Rep.by Sri.Vishnumurthy, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
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Judgment C.C.No.5187/2016
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 06.11.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 08.02.2016 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.6 lakhs.
2. The some of substance of the complaint is as follows:
The accused was known to the complainant, on that basis the accused had approached the complainant for the hand loan of Rs.7 lakhs during 1st week of February, 2014 to meet out his financial liabilities from the outsider. At the request of the accused, since he known to the complainant, he agreed to lend the said loan without any interest. Accordingly, the complainant on 24.02.2014 had paid sum of Rs.6 lakhs by way of cash and accused assured to repay the said money within 7 months.
The complainant has averred that, after lapse of stipulated period of 7 months, he had approached the accused for 3 Judgment C.C.No.5187/2016 repayment of the said hand loan on several times. At last, he had issued the cheque bearing No.685255 dated:05.12.2015 for sum of Rs.6 lakhs drawn on ICICI Bank, Vijayanagar Branch, Bengaluru, in favour of complainant for prompt repayment of the said hand loan amount.
The complainant has further alleged that, on the instruction of the accused and his request, he presented the said cheque for encashment on 05.12.2015 through his banker viz., Indian Bank, Prashanth Nagar Branch, Bengaluru. But utter shock and surprise to him the said cheque came to be dishonoured as per endorsement dated:07.12.2015 for the reasons "Funds Insufficient". Thereafter, he got issued legal notice to the accused by R.P.A.D., on 23.12.2015, the same got served on his residential address on 06.01.2016 and notice issued to his address got returned with shara 'insufficient address' dated:26.01.2015. The accused neither made payment nor replied the notice. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and 4 Judgment C.C.No.5187/2016 recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P15. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1 and got marked Exs.D1 to D8. The DW.1 was also choosen to examine one witness by name Durgegowda as DW.2. The DW.1 and DW.2 were subjected for cross-examination by the advocate for the complainant.
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Judgment C.C.No.5187/2016
7. Both side counsels have submitted their detailed written arguments, apart from adduced oral arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.6,00,000/- on 24.02.2014 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.685255, dated:05.12.2015 for sum of Rs.6,00,000/- drawn on ICICI Bank, Vijayanagar Branch, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
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Judgment C.C.No.5187/2016 The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P15, they are:
a) Ex.P1 is the cheque bearing No.685255 issued by the accused for sum of Rs.6 lakhs dated:05.12.2015, drawn on ICICI Bank, Vijayanagar Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:07.12.2015.
d) Ex.P3 is the Legal Notice dated:23.12.2015.
e) Exs.P4 & P5 are the Postal receipts.
f) Ex.P6 is the postal acknowledgment card.
g) Ex.P7 is the unserved R.P.A.D., cover.
h) Exs.P7 to P12 are the statements of account pertaining to the complainant herein.
i) Ex.P13 is the Katha Certificate pertaining to Municipal No.36, Amarajothinagar, Bengaluru.
j) Ex.P14 is the Khatha Extract and
k) Ex.P15 is the residential plan.
11. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citations and relied upon same, they are;
a) (2010) 11 SCC 441
b) Crl.A.No.271/2020
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Judgment C.C.No.5187/2016
c) Crl.R.P.No.2824 of 2006
12. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed his side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and to prove his probable defence, he choosen to entered into witness box and examined as DW.1 on oath and filed affidavit evidence.
13. No doubt, in this case, the accused was entered into witness box and filed affidavit evidence. The filing of affidavit by the accused in lieu of her probable defence is not opposed by the complainant. Mere because of she not sought permission under Sections 315 and 316 of Cr.P.C., it does not a ground to out-rate reject the probable defence set out by the accused. Mere because Section 145(1) of Negotiable Instruments Act does not expressly permit the accused to filed affidavit evidence, it does not mean that, the court cannot allow the accused to give his evidence on affidavit. By applying the same analogy, unless there is just and reasonable ground to refuse such permission. There is no express bar on accused to give evidence on affidavit either in the accused or in the court.
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Judgment C.C.No.5187/2016 In a decision reported in 2006 SCC online, Bombay 703, in a case between Peacock Industries Limited Vidhyadhar and others V/s. Dudhrani Finance Limited Bombay and another . Ratio layout therein was partly firm in a decision reported in (2010) 3 SCC 83, in a case between Mandovi Co-operative Society Ltd., V/s. Nimesh B Takore. Wherein, by citing the decisions reported in KSL and Industries Ltd., case, it was pleased to observed that, the observation made by the Division Bench in KSL and Industries Ltd., case, clearly indicate that, even the accused should be given option to lead his evidence on affidavit. But such request should be made in writing as providing for Section 315(1) of Cr.P.C. Wherein, lordship was pleased observed that, fine no justified reason to refuse permission to the accused to give his evidence on affidavit subject to the provisions contained in Sections 315 and 316 of Cr.P.C.
14. That apart, in a judgment passed by the Hon'ble High Court of Karnataka dated 13 th Day of February 2020 in a case between Jagadeesh Hiremath and R. Venkatesh in Criminal Appeal No.907 of 2017 A/W Criminal Appeal No.908 of 2017 is pleased to observed that, in view of the orders of this court in Criminal Petition No. 9331/2017 C/w Criminal Petition No. 9332/2017 dated 02.07.2019, wherein following the law laid down 9 Judgment C.C.No.5187/2016 by the Hon'ble Supreme Court in Indo International Ltd., & Another Vs. State Of Maharashtra & Another, 2005 Crl.L.J. 208, it is held that, "The court dealing with a complaint under Section 138 of the said Act of 1881 had an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence witnesses, if any on affidavit"
15. Wherein, the accused in his affidavit evidence has contended that, he do not know the complainant herein and not borrowed the alleged loan of Rs.6b lakhs at any point of time and had not issued Ex.P1-cheque to the complainant for repayment of the said alleged loan and he never instructed to present the cheque for encashment.
The accused has further contended that, he knew one Venkatesh, who is his friend and he was working in printing press namely Jyothi Printers and he knew him from past 10 years and he was running the chit business. Wherein accused and his worker viz., Nagarathna and Rajanna were also members of the said chit during the year 2012-13. In the said chi transaction for security purpose the accused had issued 2 signed blank cheques to the said Venkatesh and on behalf of him as well as on behalf of his workers in the year 2013 in connection to the said chit transaction.
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Judgment C.C.No.5187/2016 The accused has further contended that, the said chit transaction was closed and accused and his workers had paid full chit money. After that, the accused had requested the said Venkatesh to return the aforesaid 2 signed blank cheques were given by him for security purpose. By that time, he had informed him that, the aforesaid 2 cheques were misplaced and promise to return after they found to him. Believing the words of said Venkatesh, since he had close friend of him, he not taken any action against him.
The accused has further contended that, thereafter, in the year 2015, there was misunderstanding between the accused and Venkatesh, and they were not in talking terms. After came to know about the filing of present case by the complainant, then came to know that, whatever the 2 cheques given by him to the said Venkatesh in connection to the chit transaction were misused by him through complainant herein. The statement of complainant that, accused had issued only the Ex.P1-cheque in favour of him is totally false, but he had issued 2 signed blank cheques in favour of Venkatesh drawn on ICICI Bank bearing account No.015905500225 which bares the cheque number of Ex.P1 as well as another cheque bearing No.685256. Both were gave in blank with his signatures. Both the said cheques were pertaining 11 Judgment C.C.No.5187/2016 to the year 2013 and on 14.08.2015 he had no transaction in the said account. In that connection, he produced bank statement pertaining to the ICICI Bank.
The accused has further contended that, cheque bearing No.685256 which was issued by him in favour of Venkatesh was presented through the complainant and same was returned for over written in the date. Thereafter, again Ex.P1 was presented by the complainant and he had foisted a false case against him.
The accused has further contended that, the complainant herein and Venkatesh are relatives and thereby, colluding each other had misused his aforesaid 2 cheques and filed false case. The contention taken by the complainant that, Venkatesh is not known to him is false and recently the marriage of his son was took place, wherein, the said Venkatesh and his wife had participated and in that connection photographs were taken and wherein complainant and his wife were found with Venkatesh and other close family relatives. Which indicates their relationship on each other.
The accused has further contended that, he had not constructed any house and not at all borrowed loan of Rs.6 lakhs from complainant for the purpose of construction of his house as 12 Judgment C.C.No.5187/2016 alleged by him. Hence, not at all issued questioned cheque to him as he alleged on 05.12.2015 he had no legal liability in respect of Ex.P1-cheque payable to the complainant. The complainant in colluding with Venkatesh was filed the false case by misusing his Ex.P1-cheque. Therefore, he prayed for his acquittal.
Apart from the accused also choosen to produced the documents at Exs.D1 to D8. They are:
a) Exs.D1 and D2 are the marriage photographs.
b) Ex.D3 is the C.D.
c) Ex.D4 is the true copy of cheque bearing No.685255 issued by ICICI Bank, Vijayanagar Branch, Bengaluru.
d) Ex.D5 is the true copy of bank memo.
e) Ex.D6 is the true copy of cheque bearing No.685256 issued by ICICI Bank, Vijayanagar Branch, Bengaluru.
f) Ex.D7 is the true copy of bank memo and
g) Ex.D8 is the summary of account as on 22.05.2016 pertaining to M/s. Gagan Groups issued by ICICI Bank.
The DW.1 was subjected to the cross-examination by the advocate for the complainant. Apart from lead defence evidence, the DW.1 through his counsel has produced the citations and relied upon same. They are:
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Judgment C.C.No.5187/2016
a) 2006 (3) SCC (Cri) 30
b) (2008) 3 SCC (Cri) 374
c) 2006 (2) Crimes 409
d) Crl. R.P.No.172/2008
e) Crl. R.P.No.1689/2009
16. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
17. Thereafter, in order to prove the probable defence of accused, he choosen to filed the application under Section 311 of Cr.P.C. to issue summons to the witnesses by name Venkatesh and Durgegowda. On considering the objection from the complainant side, this court as per order dated:27.04.2019 allowed the said application and witness summons was issued to those witnesses. Even on 18.05.2019, the advocate for accused paid P.F. to issue summons to those witnesses. In pursuance of the witness summons issued by this court, Durgegowda has appeared before this court, as DW.2 he examined orally on oath. The another witness by name Venkatesh despite, gave sufficient opportunities to appear before this court, as not appeared on 17.07.2019, since not secured, further evidence of accused was taken as nil.
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Judgment C.C.No.5187/2016
18. The DW.2, who examined as a witness of the accused has orally deposed that, he knew the accused since 18 years and to whom, for display advertisement, he furnished his TATA Ace vehicle. He also deposed, he does not know the complainant, but stated he knew Venkatesh. Who known to him, as he with the accused in connection to the advertisement business, he was friend of the accused. The said Venkatesh along with the advertisement business also did chit business. With whom, he and accused were joined chit of Rs.1 lakh each having the monthly premium of Rs.5,000/-. Accordingly, DW.2 had paid one month premium and later he left the said chit to the accused and accordingly, accused continued the same. The accused had bid 2 chits and as per rules, he gave his 2 signed blank cheques as security drawn in ICICI Bank, RPC Layout Branch, to the said Venkatesh. Later, he came to know that, by alleging that, accused was not paid chit money, the said Venkatesh based on the 2 security cheques taken from the accused, has filed the case against the accused through the complainant herein. Since Venkatesh had no valid license todo chit business, through others had filed case against the accused. Accused told him that, by alleging that, he not paid chit money to the Venkatesh, present 15 Judgment C.C.No.5187/2016 case is filed against him. The DW.2 was subjected to the cross- examination by the advocate for complainant.
19. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheque at Ex.P1. Therefore, it needs to draw the presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is prove, the holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheque was drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued the Ex.P1-cheque unless and until contrary prove. Therefore, as per those sections, it made clear that, it is the initial onus on the 16 Judgment C.C.No.5187/2016 accused to prove his case based on the principles of 'Preponderance of Probabilities'.
It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also it was pleased to observed that, the accused can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle her to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the 17 Judgment C.C.No.5187/2016 complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to observed that, mere denial of issuing cheque, whether is sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial of issuing cheques would not be sufficient as it is time and again noted that, once the cheque issued duly signed by the accused, the presumption goes against her as per Section 139 of Negotiable Instruments Act.
20. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, guilt of accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 18 Judgment C.C.No.5187/2016 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the materials brought on record by parties, but also by reference to the circumstances upon which she relies.
21. On going through the above authorities as well as dictums, it made clear that, it is the initial burden on the accused to prove his probable defence in order to rebut the statutory presumption as well as the case put forth by the complainant. No doubt, the initial statutory presumption favours the complainant as to questioned cheque was issued by the accused for discharge of legally recoverable debt, unless and until contrary prove. Hence, it is the initial burden on the accused to rebut the case of complainant.
22. It was the specific defence of the accused that, the complainant is unknown to him and as alleged by the complainant, he not borrowed any loan for the purpose of construction nor issued the questioned cheque for payment of any loan and he not constructed any house. More particularly, he taken up defence that, the accused was subscribed chit with Venkatesh, to whom as a security he gave signed 2 blank cheques, but he along with his workers viz., Nagarathna and 19 Judgment C.C.No.5187/2016 Rajanna were also subscribed chit in the year 2012-13. The said chit transaction were closed, he and his workers were paid chit amount despite, closed the chit, he not returned his security 2 signed blank cheques to him, but through unknown complainant has filed the false case. So also stated that, another cheque of the accused was also Venkatesh through the complainant herein was presented for encashment, the same got dishonoured as it was over written by considering the said fact, the complainant filed the false case, hence, he is not liable to pay the cheque amount. Whatever the defence taken by the accused has been placed by way of cross-examining the PW.1 as well as himself entered into witness box, apart from production of documents at Ex.D1 to D8, he examined DW.2. It is pertinent to note that, even the accused under the same grounds attack on the claim of complainant, at the inception by way of caused reply notice.
23. The accused in order to prove his probable defence, he himself taken the risk to examine as DW.2. His contention is reproduced in the earlier part. He choosen to produced the documents at Exs.D1 to D8. It was his specific defence that, complainant and Venkatesh are known to each other and they are relatives. Though, he stated, he was a friend of accused, despite, he got cleared the chit amount without returned his signed blank 20 Judgment C.C.No.5187/2016 cheques, the said Venkatesh through the complainant herein got misused his 2 signed blank cheque. In order to establish his knowingness of complainant and Venkatesh in order to make nexus to the Ex.P1-cheque in connection to the chit transaction choosen to produced the documents at Exs.D1 to D3, which are none other than photographs and C.D. The photographs at Ex.D1 tendered to the complainant, which depicts the marriage of son of complainant. Wherein, the presence of other are not been seen. However, the photographs at Ex.D2 was tendered to the PW.1, he admitted his presency. But in the course of cross-examination of PW.1, he deposed, as to the knowingness of Venkatesh either to the complainant or to the accused as well as depicts the chit transaction done through Venkatesh by way of suggestion. The relevant portion of cross of PW.1 runt thus:
ನ ವರನ ಆರರಟಪಯ ಸನಟಹತ ಎವದರ ನನಗ ಗರತತಲಲ. ಆತ "ವವಕಟಟಶಎನನ ಜರ ಜ ಟತ ಪಪವಟವಗ ಪಪಸಸನನ ನ ಇಟನ ಟ ಕರವಡ ಕರಣ ನವಬಬರನ ಸನಟಹತರಗದವ ಎವದರ ಸರಯಲಲ. ಆತ ಚಟಟಯ ವಜವಹರ ಕರಡ ನಡಸನತತದದರನ ಎವದರ ಸರಯಲಲ. ಆ ಚಟಟಗ ಆರರಟಪಯವದಗ ಆತನ ಸಹರಟದರಜಟಗಗಳದವತಹ ನಗರತನ ಮತನತ ರಜಣಣ ಚಟಟಯ ಸದಸಜರಗದದರನ ಎವದರ ನನಗ ಗರತತಲಲ. ಆ ಚಟಟ ವಜವಹರಕಕ ಸವಬವಧಪಟಟವತ ಆರರಟಪ ಮತನತ ತನನ ಸದರ ಸಹರಟದರಜಟಗಗಳ ಚಟಟ 21 Judgment C.C.No.5187/2016 ಹಣದ ಭದಪತಗಗ ಸಹ ಮಡರನವ 2 ಖಲ ಚಕನ ನ 2013 ರಲ ಕ ಗಳನನ ನಟಡದದರನ ಎವದರ ಸರಯಲಲ."
24. On going through the testimony of PW.1, he deposed that, he does not know that, Venkatesh was the friend of accused. Even he deposed he run Jyothi Printers near the residential address of the complainant. He categorically denied the suggestion that, since the said Venkatesh had the printing press, he came to be the friend of complainant. By deposing so, the PW.1 has deposed, he does not know that, accused and Venkatesh were friends. Even he denied the suggestion made to him that, Venkatesh and complainant were friends. If at all, they were not friends or not, knowingness each other definitely, he specify, who is he. In order to disbelieve the very contention of complainant having the knowingness of complainant and Venkatesh, the accused choosen to produced the photograph at Ex.D2 and C.D at Ex.D3.
25. On close perusal of Exs.D2 and D3, wherein reflects the presence of complainant and accused in the family function of the complainant herein with other family members. Though the advocate for complainant had objected for making of the said documents, in view of the accused produced those documents 22 Judgment C.C.No.5187/2016 under the certificate as required under Section 65(b) of Evidence Act, the very physical presence of complainant and Venkatesh in the family function of the complainant, no satisfactory grounds is been made out by the complainant, in order reject the same. On prima-faice perusal of the Ex.D2 photograph, it leads presumption that, it was purely a family photograph, wherein, the unknowing Venkatesh, how came into in photograph is not been explained by the complainant. Therefore, the Ex.D2 photograph clearly manifest the knowingness of complainant and Venkatesh, though without any valid grounds he denied. Thereby, the accused has proved the nexus of complainant and Venkatesh.
26. The accused been cross-examined by the advocate for complainant, wherein, he categorically deposed, as to how he secure the photograph at Ex.D2 and produced before this court. He categorically deposed, the Ex.D2 photograph was the pertaining to the marriage, it was in WhatsApp Status of the complainant. The said factum was not denied by the complainant. Therefore, the objection raised by the complainant as to the genuineness of photograph cannot be accepted as the factum of upload the status pertaining to the photograph at Ex.D2 in his WhatsApp is been not denied by the complainant. Therefore, the Ex.D2 is the photograph which reveal the knowingness and 23 Judgment C.C.No.5187/2016 relationship of complainant with Venkatesh. In the above said testimony in the later part also revealed that, the said Venkatesh was run the chit business, wherein, the accused and his colleagues by names Nagarathna and Rajanna were subscribed as members.
27. It is significant fact to note that, the complainant has not denied, as to the Venkatesh had run the chit business, wherein accused and other colleagues were subscribed as members. It was also suggested to PW.1 that, in connection to the said chit, as a security for him as well as his colleagues, he gave 2 signed blank cheques to the said Venkatesh in the year 2013, but denied by the PW.1. However, the said suggestion discloses, the accused through out the case taken up the same defence by way of suggestion and able to establish the knowingness of complainant and Venkatesh through their family, therefore, the contention of the complainant, he does not know Venkatesh is ruled out.
28. Thereafter, the accused has taken up the specific contention in his affidavit evidence by contending that, he gave 2 signed blank cheques to the Venkatesh, despite, he and his colleagues were closed the entire chit transaction, the said 24 Judgment C.C.No.5187/2016 Venkatesh without returned his 2 signed blank cheques got misused the same through the complainant herein. In that regard, to show that, 2 cheques bearing Nos.685255 and 685256 were belongs to the accused, he choosen to produced its attested copies as per Exs.D4 and D6. Even he got produced the endorsements of the banker as to production of those cheques by the complainant for encashment as found in Exs.D5 and D7. On meticulous perusal of the Exs.D4 and D5 discloses, it is pertaining to the cheque in question. The complainant has not disputed that, he had account No.606480727 in his name at Indian Bank, Prashanth Nagar Branch, Bengaluru. The Ex.P2 bank memo attached to Ex.P1-cheque discloses, the said account number pertaining to the complainant.
29. That apart, the Ex.P7 bank statement pertaining to the duration 13.01.2014 to 17.02.2014 also discloses, the complainant had presented the same for encashment. It is his case based on the Ex.P1/D4 cheque, he move the present complaint. It was the specific defence of the accused that, prior to the complainant had presented the questioned cheque at Ex.P1/D4 as per Ex.P2/D5 for encashment, he already presented another cheque bearing No.685256 pertaining to him got obtained through the said Venkatesh. Though the complainant is unknown 25 Judgment C.C.No.5187/2016 to him in collusion with the said Venkatesh, complainant had filed the false case. In order to show that, prior to present the questioned cheque at Ex.P1, complainant has earlier presented the another cheque at Ex.D6 through his bank account as stated earlier, which also reflected in the statement given by the bank as per Ex.D7. On conjoint reading of Exs.D6 and D7 it made clear that, the complainant through his bank account got presented the Ex.D6 cheque for sum of Rs.6 lakhs pertaining to the cheque dated:25.11.2015 is been proved by way of production of the said documentary evidence. In that connection the accused has tendered for cross-examination and denied the suggestion made by the complainant, but the production of Exs.D6 and D7 clearly manifest that, prior to the introduction of Ex.P1-cheque, the complainant already made use of another cheque of the accused bearing No.685256 as per Exs.D6 and D7.
30. It is worthy to make mentioned herein itself that, the accused by way of filing application before this court, seeking for direction against the complainant for production of his bank statement pertaining to the period of the presenting ExDs.D6 and D7 cheque for encashment through his account. In that connection the application was rejected and as per the observation made by the Hon'ble High Court of Karnataka in 26 Judgment C.C.No.5187/2016 Crl.P.No.1544/2019, the Hon'ble High Court of Karnataka has opined that, the accused can obtained the certified extract of his bank statement which would reflect the transaction relating to both the cheques or otherwise. In that context, the accused got obtained Exs.D4 to D8 documents, which are none other than the attested copies of 2 cheques of the accused and statement in that regard. Even he produced the bank statement of the accused at Ex.D8 pertaining to the period 22.05.2016, wherein it is mentioned as operative account in INR and it was ended on 14.08.2015 with the bank balance of Rs.0. the Ex.D8 discloses, though the accused had kept the bank account as per Ex.D8, it came to be inoperative because of he made balance of Rs.0, therefore, it made clear that, at least from 04.08.2015 onwards the very bank account of the accused pertaining to the Ex.P1-cheque was inoperative.
31. The accused has strongly attack on the claim of complainant that, wontenly the complainant has not produced bank statement prior to 12.01.2014 only choosen to produced his statement commencing from 13.01.2014 to 17.02.2014 in order to avoid the presentation or earlier cheque at Ex.D6 pertaining to the accused got obtained through Venkatesh. Though, the accused through out the case has made serious efforts seeking from 27 Judgment C.C.No.5187/2016 direction of this court, enable the complainant to produce his bank statement prior to 13.01.2014. This court by observing that, to prove their respective contention, it is the parties to have produce necessary documents. Though the accused was attack on the claim of complainant as to misuse of Ex.D6 cheque earlier, it was the duty of the complainant in sumoto to produce the bank statement prior to 13.01.2014 which reveals whether he got made use of Ex.D6 previous cheque of the accused got obtained through Venkatesh or not. The non production of bank statement prior to 13.01.2014 pertaining to the account of complainant, it has to be presume that, by virtue of accused got produced the bank statement with the copy of cheque as per Exs.D6 and D7, much earlier the complainant got made use of another cheque of the accused bearing No.685256 dated:25.11.2015. Therefore, it needs to draw the adverse inference against the complainant that, the complainant has avoided to produce his bank statement for the relevant period.
32. By virtue of necessary copies furnished by the accused as per Exs.D6 and D7, it clearly established that, complainant had earlier presented his another cheque for the same amount of Rs.6 lakhs. The production of Exs.D6 and D7 it goes against the case of complainant ,as to he utilize the earlier cheque of the accused. 28
Judgment C.C.No.5187/2016 Even the complainant has not discloses, whether he already secured another cheque of the accused as per Ex.D6 and made use of the same and later on account of the earlier cheque came to be technically in default he got obtained the present cheque is not been whispered. With regard to the Ex.D6 is concern, accused was attack on the claim of complainant by way of cross- examination. At least in the witness box, it is the complainant needs to explain, whether he got obtained the previous cheque of the accused or not. If at all, he himself deal with the accused as alleged in the present complaint definitely, he must know the pin to pin documentary evidence. In that regard, it requires to focus on the cross of PW.1 that:
ನ ನನಗ ನಟಡದದರನ. ಸದರ ಚಕನ ವನನ "ಆರರಟಪ ನಪ-1 ರ ಒವದಟ ಚಕಕನನ ಆರರಟಪಯ ಬಟರ ಯವದಟ ಚಕಕನನ ನ ನನನ ನಗಧಟಕರಸಲನ ಬಜವಕಗ ಹಜರನಪಡಸಲಲ. ಆರರಟಪ ನಟಡದವತಹ ಚಕಕನನ ನ ವವಕಟಟಶರವರನ ನನನ ದ ಪಡ ಮನಖವತರ ಬಜವಕಗ ನಗಧಟಕರಸಲನ ಸಲಸದಗ, ಆ ಚಕನಲ ತದನ ಮಡದದ ಕರಣ ಅಮನಜಗರವಡದನ ದ , ಆ ಕರಣಕಕ ನಪ-1 ರ ಚಕಕನನ ನ ನನನ ಮನಖವತರ ವವಕಟಟಶ ರವರನ ಆರರಟಪಯವದ ಪಡದದದರನ ಎವದರ ಸರಯಲಲ. ಆರರಟಪಯವದ ಪಡದವತಹ 2 ಚಕನ ಕ ಗಳನನ ನ ವವಕಟಟಶನನನ ಮನಖವತರ ನಗಧಟಕರಸಲನ ಬಜವಕಗ ಸಲಸದದರನ ಎವದರ ಸರಯಲಲ.
ಕ 2013 ಕಕ ಸವಬವಧಪಟಟ ಚಕನ
ನಪ-1 ಚಕನ ಕ , ದನವಕನ05.12.2015 ಕಕ
ಸವಬವಧಪಟಟದದಲಲ ಎವದರ ಸರಯಲಲ. ಆ ದನವಕದವದನ ಆರರಟಪಯ
ಖತ ಮನಚಚಲಲಟಟತನತ ಎವದರ ನನಗ ಗರತತಲಲ."
29
Judgment C.C.No.5187/2016
33. The advocate for the accused by way of cross-examining the PW.1 as reproduced above, has try to elicit the true affairs before this court. The PW.1 has deposed, the accused gave only Ex.P1-cheque, except that, he not produced any other cheque of him for presentation. It was suggestion made to PW.1 that, whatever the cheque gave by accused, Venkatesh through the complainant herein had presented for encashment, since there was rectification in the cheque, because of that, Ex.P1-cheque taken by Venkatesh through the accused is been denied. More categorically suggested to PW.1 that, whatever the 2 cheques obtained from the accused by Venkatesh were presented through the complainant for encashment is been denied by the complainant. The PW.1 has denied that, questioned cheque at Ex.P1 is pertaining to the year 2013only, not dated:05.12.2015, by that time, the account of accused was closed was not denied by the complainant.
34. The said testimony of PW.1 goes to disclose,he claiming he took only one cheque from the accused except that, he not obtained any other cheque. The accused has suspected the Venkatesh colluded with complainant, got filed the present case.
Before that, earlier effort was made by the complainant in collusion with Venkatesh and presented the earlier cheque 30 Judgment C.C.No.5187/2016 bearing No.685256 as per Ex.D6, the same came to be dishonoured, therefore, the complainant has avoided to produce his bank statement. The PW.1 contrary to the documentary evidence produced by the accused as per Exs.D6 and D7, has deposed that, except Ex.P1-cheque he not collected any other cheques from the accused. Therefore, the complainant had caused mistake by avoiding the production of his bank statement pertaining to the period prior to the date:13.01.2014 which was very material to establish, whether the complainant was made use of Ex.D6 cheque of the accused earlier or not. By avoiding to produce his bank statement, he himself created doubtful circumstances as to the conduct of the complainant.
35. That apart, in the witness box he deposes, except Ex.P1- cheque he not collected any other cheques. The said evidence prima-faice appears to be false as Exs.D6 and D7, copy of the cheque pertaining to the accused got presented by complainant through his banker for encashment can be seen with his account number as per Ex.P7. On close perusal of Exs.D6 and D7 cheque it made clear that, both are filled through the same person in the name of complainant. It is the complainant has to demonstrate that, how earlier cheque at Ex.D6 dated:25.11.2015 came to the hands of complainant, if the defence of accused were 31 Judgment C.C.No.5187/2016 not to be true. The unknowingness of production of Ex.D6 cheque to the banker of the complainant for encashment it leads to draw the inference that, without the knowledge of complainant, might have been the said Venkatesh got presented, therefore, consequent to issue summons as contended by the accused, he not choosen to appear before this court. The production of Ex.D2 photograph clearly reveal that, complainant and Venkatesh were known to each other, therefore, to avoid reveal truth before the court of law. Despite, the accused had made effort to secure him as witness, for the reasons better known to complainant and Venkatesh, he avoided to entered into witness box. The accused had made sincere effort to summon the said witness. It is immaterial that, if Venkatesh is called, whether he depose the truth or not, but the non appearance of him itself leads circumstances that, Venkatesh and complainant are colluded each other and earlier got misused one of the cheque of accused as per Ex.D6 prior to make use of Ex.P1-cheque, therefore, the said Venkatesh avoided to enter into witness box. The Exs.D6 and D7 coupled with admissions extracted from the mouth of PW.1, clearly demonstrated the probable defence of the accused as to his 2 cheques Ex.P1/D4 earlier cheque at Ex.D6 came to be handed over to Venkatesh, then for the reasons better known to 32 Judgment C.C.No.5187/2016 complainant, he got secured and projected the present case, but failed to demonstrate his contention.
36. The probable defence of the accused that, with regard to running of chit transaction by Venkatesh, wherein accused and his colleagues named earlier and DW.2 was subscribed, later the said chit, on account of Venkatesh suspected the financial capacity of DW.2 as already under the liability of vehicle loan, he got handed over his one of the chit to the accused. In the witness box DW.2 entered in to and categorically deposed that, he was subscribed chit with Venkatesh, who was very known to accused and DW.2. He also clarified, he joined chit with Venkatesh in the year 2014, the value of the same was Rs.1 lakh, wherein, accused was also joined for the same and the monthly premium was fixed at Rs.5,000/-, accused and DW.2 together joined each chit as he unable to continue, as Venkatesh challenged his financial capacity, he gave his one of the chit to the accused. Though, the advocate for the complainant has denied, nothing has worthwhile elicited from the mouth of the DW.2 contrary to the defence of the accused. Whatever the evidence deposed by the DW.2 remains proved.
33
Judgment C.C.No.5187/2016
37. Moreover, though it was suggestion made to DW.2 as to denial of chit run by Venkatesh, wherein DW.2 and accused were not joined, but the very PW.1 in his cross-examination has deposed, he does not know about Venkatesh had run the chit, wherein accused was subscribed. Therefore, no significance can be attached to the suggestion made to DW.2 as to denial of running of chit and participation of accused and DW.2. The DW.1 has deposed that, he does not know the complainant and when he went to witness box to lead evidence, then only he came to know him. But it was suggestion made by the complainant to him that, he knew the complainant much earlier though deposed false to help the accused. The said suggestion also discloses, without any base the advocate for complainant has suggested the knowingness of complainant and DW.2 each other. It is not the contention of accused that, DW.2 and complainant are known to each other, but it was his defence that, accused and DW.2 were subscribed chit with Venkatesh and accused gave 2 signed blank cheques as security, despite, clear the chit, he not returned, but misused those cheques through the complainant herein. In that regard, no suggestion is made to DW.1 to suspect the genuineness of his evidence. The DW.1 also successfully 34 Judgment C.C.No.5187/2016 withstood his contention by way of denying the suggestion made by the advocate for complainant.
38. During the course of cross of DW.1, the factum of, if at all, the complainant had lent loan of Rs.6 lakhs on 24.02.2014 for the period of 7 months, and after lapse of one year 10 months, the accused gave questioned cheque to him for discharge of legal liability as pleaded, those factum are material evidence require to be suggested to DW.1. Inspite of suggesting the case of complainant through the mouth of DW.1, simply suggested him that, complainant and accused together by using self cheque of the complainant prior to the alleged loan transaction got the transaction of Rs.90,000/-. In order to show that, the complainant gave Rs.90,000/- to the accused as suggested to the DW.1, it is not the case of complainant herein. By way of making such suggestion the complainant try to project that, prior to the alleged loan transaction there were Rs.95,000/- were remitted by the complainant to the accused by way of used his self cheque. Though the DW.1 has denied the same. By making such suggestion, the complainant has draw the attention of this court, with regard to the explanation given by the DW.1 with regard to the payment of Rs.90,000/- as suggested to the DW.1, through his advocate. In that connection, it requires to focus on the cross- 35
Judgment C.C.No.5187/2016 examination of PW.1. The PW.1 during his cross-examination has deposed that:
"ಚಕನ ಮನಖವತರವ ಮದಲನ ಆರರಟಪಗ ರರನ95,000/- ವನನ ನ ನನನ ಸಲಲ ಚಕನ ಮನಖವತರ ದನವಕನ24.02.2014 ರವದನ ಆರರಟಪಗ ಕರಟಟರನತತಟನ. ರರನ95,000/- ಸಲ ಬಟರ ವಜವಹರ ಆದ ಕರಣ ನಪ-5 ರ ನರಟಟಟಸ, ದರರನ ಮತನತ ಪಪಮಣ ಪತ ತದಲ ನನನ ಆ ಬಗಗ ಉಲಖಸಲಲ. ರರನ95,000/-ದ ಸಲ ಆರರಟಪ ಯವಗ ಮರಳಸದದರನ ಎವದರ ನನಪಲಲ. ಆದರ ನಗದಗ ಮರಳಸದರ. ವವಕಟಟಶ ರವರನ ಚಟಟಯನನ ನ ನಡಸನತತದದ ನ, ಆರರಟಪ ಆ ಚಟಟಗ ಸವಬವಧಪಟಟವತ ವವಕಟಟಶ ರವರನ ಆರರಟಪಗ ರರನ95,000/- ನಟಡದದರನ ಎವದರ ಸರಯಲಲ. ರರನ95,000/- ಆರರಟಪಗ ನಟಡದ ಹಣ ನನನ ಮತನತ ಆರರಟಪಯ ವಜವಹರವಲಲ, ಅದನ ಆರರಟಪ ವವಕಟಟಶನರವದಗ ಮಡಕರವಡ ವಜವಹರ ಎವದರ ಸರ."
39. If at all, there were earlier transaction with the complainant and accused as suggested to DW.1, it is require to be stated in the present complaint, as to in connection to which transaction the said amount was transacted between complainant and accused. In that regard, the PW.1 has deposed that, earlier through cheque he gave Rs.95,000/- to accused by using his self cheque on 24.02.2014. Even he deposed, that transaction is altogether different from the alleged loan transaction of Rs.6 lakhs alleged to be paid to the accused on 24.02.2014, therefore, he not 36 Judgment C.C.No.5187/2016 whispered the said factum in the present complaint. Even he deposed, does not remember when the accused was repaid the said loan of Rs.95,000/-. But stated in cash it was returned. In connection to the said Rs.95,000/- it was the suggestion made to the PW.1 that, Venkatesh was run the chit, wherein in connection to the same the said Venkatesh to the accused gave Rs.95,000/-, but PW.1 has denied the same. But he at the fag end of the said testimony categorically admitted that, whatever the amount of Rs.95,000/- paid to the accused was not the transaction between complainant and accused, but it was pertaining to the transaction of Venkatesh. Though earlier he decline to accept the suggestion, but at the fag end he categorically admitted, Rs.95,000/- was remitted by him is not of the money of complainant, but it was the amount transaction between accused and Venkatesh. Thereby, the complainant categorically admitted and accused has demonstrated that, there was nexus between complainant and Venkatesh. The accused has proved his probable defence as to the complainant by colluding with Venkatesh, got misused his 2 signed blank cheques which were given by him to the Venkatesh in connection to the chit transaction. Therefore, the accused hs required under law, by way of oral as well as documentary evidence has established that, there was no financial transaction 37 Judgment C.C.No.5187/2016 between complainant and accused as alleged in the complaint and he not issued the questioned cheque at Ex.P1 or cheque at Ex.D6 to the complainant for making payment of legally payable debt. Therefore, the accused has proved his probable defence which attack on the route of the case of complainant, therefore, it is reverse burden casted on the complainant to prove his case beyond the reasonable doubt in order to convict the accused.
It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".
Added to that, in a decision of AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally 38 Judgment C.C.No.5187/2016 necessary to know how the complainant advanced such a huge amount".
40. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused. In that backdrop, whatever the defence placed by the accused which brushed out the very case of the complainant from the point of oral, documentary evidence coupled with attack on the very pleading of the complainant. On meticulous perusal of the pleading of the complainant, he not discloses, exactly on which date of 1st week of February, 2014, the accused approached him seeking for financial assistance to meet out the financial liabilities with the outsider. If at all, the accused has alleged had any financial difficulties, it is the complainant as to explain with whom the accused had borrowed loan and what extant, is not been explained.
41. That apart, he stated, on 24.02.2014 he gave Rs.6 lakhs to the accused by way of cash. The amount of Rs.6 lakhs is not a smaller amount, since it is huge, no need to pass the said money way of cash. As per Section 69 SS of Income Tax Act, the amount more than Rs.20,000/- needs to pass through cheque or demand draft. In violation of the same, the complainant has stated, he lent 39 Judgment C.C.No.5187/2016 by way of cash, therefore, it is him to demonstrate he had mobilized the huge amount of Rs.6 lakhs as on the said date. It is also pertinent to note that, there were no pleading as to the complainant got obtained any security document as to handed over the cash at least could have been disburse the said amount in the presence of eye witness. In that regard, no such explanation is forth coming from the side of complainant. The complainant had contended, on 24.02.2014 he gave cash of Rs.6 lakhs to the accused. He in his cross-examination has deposed that, by leased out his own house got obtained money and gave it to the accused. Then it is him to disclose, to whom he gave lease, what was the least amount and what was its duration, how he mobilized the said fund and on whose presence he handed over same to the accused, but without explaining any such doubtful circumstances he stated, he does not remember the lease holder name and stated, he already vacated. If at all he had such lease transaction and mobilized the fund definitely, lease document needs to produce, but he not produced the same. At least in that connection to make counter cheque he needs to explain, when, where, to whom, he gave lease and when he quit the same, but he deposed, he does not remember. Therefore, to make believe the contention of the complainant as to mobilized 40 Judgment C.C.No.5187/2016 the fund of Rs.6 lakhs, he needs to produce document nor gave satisfactory explanation, but the same lacks.
42. That apart, he deposed, by way of his lease holder, when he vacated the house, from whom, he got received the lease amount of Rs.4 lakhs. When he vacated by way of leased out another house for Rs.2,50,000/- got received and gave it to the earlier lease holder. If another house was leased out for Rs.2,50,000/-, how once again he mobilized Rs.4 lakhs in order to he vacate from the leased house, is also not been explained. If at all, he took Rs.4 lakhs from the earlier lease holder definitely, another Rs.2 lakhs, how he mobilized is also satisfactorily not explained. He deposed, the 2nd leased holder still is in his house. In case, complainant by took Rs.2,50,000/- from the person lease holder and gave it to the complainant or the earlier lease holder it is the complainant needs to examine the said lessee. However, he choosen to produced one unregistered lease agreement dated:30.06.2015 it was for the subsequent period, therefore, no value can be attached to the same, as he not discloses, to whom he gave the earlier or subsequent leased premises. The production of unmarked lease agreement dated:30.06.2015 had no significance. In order to show that, he had 2 houses, he 41 Judgment C.C.No.5187/2016 choosen to produced property katha certificate as per Exs.P13 and P14, which discloses the name of complainant.
43. On going through the Ex.P14 coupled with the building plan at Ex.P15, it discloses, the complainant had ground floor and first floor houses measuring 352.50 Sq.Ft. Having house as such it is not enough to prove the mobilization of leased amount as alleged by the complainant, it needs to produce other documents or examination of witnesses, but the same is lack. If at all, he had 2 houses as per those documents, in the fag end of above testimony he deposed, he resides in his own house, then how he gave leased out 2 houses is also not satisfactorily explained in order to mobilized the funds. The PW.1 in his cross-examination try to explain that, he was not an income tax assessee, he had leased money of Rs.4 lakhs and Rs.2 lakhs were with him and mobilized the same and gave to the accused, but in that regard, he not got obtained any security documents. He also stated, while he gave money to the accused, he not received cheque from him. He categorically admitted that:
"ನನನ ಆದಯ ತರಗ ಪವತದರನಲಲ. 4 ಲಕ ಭರಟಗಜದ ಹಣ, ಉಳದ 2 ಲಕ ನನನ ಬಳ ಇದದವತಹ ಹಣ ನಗದಗತನತ. 6 ಲಕ ಆರರಟಪಗ ಸಲ ನಟಡದ ನ ನನನ ಬರಯಸಕರವಡಲಲ. ಆ ಬಗಗ, ಆತನವದ ಯವದಟ ದಖಲಯನನ ಕ ನಟಡರಲಲಲ . ಆರರಟಪಗ ಸಲ ಆರರಟಪಗ ನಟಡದ ಸವಬವಧ ಆತ ನನಗ ಚಕನ 42 Judgment C.C.No.5187/2016 ನಟಡದ ಸಲ ಆ ದನದವದನ ನನನ ಬಳ ಇತನತ ಎವಬನದಗ ತರಟರಸಲನ ದಖಲ ನನನ ಹಜರನಪಡಸಲಲ ಎವದರ ಸರ. ಹಣವನನ ನ ಹರವದಸದ ಬಗಗ ಇದಟ ಮದಲ ಬರ ಸಕಜ ನನಡಯನತತದನ ಎವದರ ಸರ."
44. The PW.1 categorically admitted, to show that, he had requisite fund as on the date of alleged lent, he not produced any document and with regard to gave explanation, he deposed first time in the witness box. When he had not produced any document as to mobilization of fund of Rs.6 lakhs or examining any witnesses, as to how he mobilized and the complainant had physically hard cash and gave to the accused, as he urged no satisfactory explanation is forth coming from his side. During the course of cross of PW.1, the advocate for accused had focused on the evidence of PW.1, which runs thus:
"ತಳನವಳಕ ಪತ ತ ನಟಡಲನ ವಕಟಲರಗ ನನಟ ಮಹತ ನಟಡದ . ವಕಟಲರನ ದ , ಅದಕಕ ನನನ ಸಹಯನನ ನನಗ ಓದ ಹಟಳದನ ನ ಮಡರನತತಟನ. ನನನ ವಕಟಲರ ತಳನವಳಕ ಪತ ತದಲ, ಆರರಟಪಗ ಸಲ ನಟಡದ ದನದವದನ ಆತ ಡಮಜವಡ ಪಪಮಸರ ನರಟಟನನ ನ ನನಗ ಬರದನ ಕರಟಟರನವದನ ಕಣಸರನವದನ ತಪಲಗರನತತದ. ಆರರಟಪ, ಸದರ ನರಟಟಟಸನಲ ಕಣಸದವತ ಡಮಜವಡ ನ ನನಗ ಬರದನಕರಟಲಲ ಎವದರ ಸರ. ಆ ನರಟಟಟಸನನ ಪಪಮಸರ ನರಟಟನನ ನ ಓದದ ಬಳಕ, ನಮಮ ವಕಟಲರಗ ಆ ರಟತ ಡಮಜವಡ ಪಪಮಸರ ನರಟಟನನ ನ ಬರದನಕರಟಟಲಲ ಎವಬನದಗ ನನನ ತಳಸದ, ಅವರನ ಅದನನ ನ ಸರಪಡಸಕರಳನ ಳ ವದಗ ತಳಸದದರನ, ಆ ತಪಲನನ ನ ನಮಮ ವಕಟಲರಗ 43 Judgment C.C.No.5187/2016 ಳ ವವತ ತಳಸದ ಎವಬ ಬಗಗ ದರರನ ಮತನತ ಪಪಮಣಪತ ತದಲ ಸರಪಡಸಕರಳನ ಕಣಸಲಲ., ನಪ-3 ನರಟಟಟಸನನ ನ ನಟಡನವಗ ವಕಟಲರಗ ನನಟ ಮಹತ ನಟಡದದಲಲ, ಆ ಚಕಕನನ ನ ಹರವದದದ ವಜಕತ ವಕಟಲರಗ ನರಟಟಸನನ ನ ನಟಡದದರನ ಎವದರ ಸರಯಲಲ."
45. The PW.1 has clearly admitted that, while gave legal notice as per Ex.P3 himself gave instruction to his advocate and put his signature. On going through the Ex.P8 it does not bare the signature of the complainant. He categorically admitted that, in the legal notice at Ex.P3, he got made mentioned that, on the date of issue loan to the accused, accused got executed On demand promissory note in his favour, but he deposed, it was wrongly mentioned. He categorically admitted, accused had not executed any such On demand promissory note in his favour. If so, why the complainant has recited as such as to the accused had executed On demand promissory note in his favour itself created doubt. Though, he try to give clarification on reading of the notice, he instructed his advocate that, accused not executed any On demand promissory note, but his advocate told him that, the mistake will be rectified. In that regard, corrigendum notice could have issued by his advocate. The mentioning of execution of the said document, in that legal notice and ignoring the same in the present case itself creates doubt, as to the genuineness of the 44 Judgment C.C.No.5187/2016 alleged transaction held between complainant and accused. It was specifically suggested to PW.1 that, it was not the complainant gave instruction to his advocate to gave notice to the accused, but it was the person who possessed the cheque got instructed, hence, it was mentioned as such is been denied by the PW.1. The said mentioning of On demand promissory note in the legal notice at Ex.P3 is also one of the doubtful circumstances goes against the case of complainant as the same is absence in the pleading and evidence of PW.1. Thereby, the case of complainant has projected that, accused gave only one cheque for payment of loan amount. In the further cross-examination of PW.1, he deposed that:
"ಸಲ ಕರಟಟಗ ಆರರಟಪ ಒವದನ ಚಕ ಕರಟಟ ಬಗಗ ನನಪದ. ಮತರತವದನ ಚಕಕರಟಟ ಬಗಗ ನನಪಲಲ. ಆರರಟಪ ಎರಡನ ಚಕನ ಕ ಗಳನನ ನ ವವಕಟಟಶರವರಗ ದ , ಸದರ ವವಕಟಟಶ ರವರವದ ಆ ಎರಡನ ಚಕನ ನಟಡದನ ಕ ಗಳನನ ನ ನನನ ಪಡದನಕರವಡನ ಬಜವಕಗ ನಗಧಟಕರಸಲನ ಸಲಸದನ ಎವದರ ಸರಯಲಲ. ಆ ರಟತ ನನನ ದ , ಸಲಸದನ ಅದನ ನನನ ಬಜವಕನ ಸಟಟಟಮವಟನಲ ಉಲಖವರನವದರವದ, ನನನ ಬಜವಕನ ಸವಪಣರ ಸಟಟಟಮವಟನನ ನ ಹಜರನಪಡಸಲಲ ಎವದರ ಸರಯಲಲ. ನಪ-1 ಕಕವತ ಮದಲನ ಆರರಟಪಗ ಸವಬವಧಪಟಟ ಮತರತವದನ ಚಕಕನನ ನ ದನವಕನ25.11.2015 ರವದನ ನಗಧಟಕರಸಲನ ಸಲಸದ ಎವದರ ನನಗ ನನಪಲಲ. ಆ ಚಕಕನ ದನವಕ ತಪಲಗದ ಎವದನ, ವವಕಟಟಶರವರವದ 05.12.2015 ರವದನ ಆರರಟಪಗ ಸವಬವಧಪಟಟ 45 Judgment C.C.No.5187/2016 ನ ಪಡದನಕರವಡದನ ಎವದರ ಸರಯಲಲ. ನಪ-1 ರ ಚಕಕಗರ ಮತರತವದನ ಚಕಕನನ ಕ ಯವದಟ ಸವಬವಧ ಇಲಲ ಎವದರ ಸರಯಲಲ."
ದರರನ ಆರರಟಪತ ಸಲಕರ
46. Contrary to his own pleading and evidence, the PW.1 has deposed while gave money to accused, the accused it was remember to him that, accused gave one cheque and not remember about issuance of another cheque. It was suggestion made to PW.1 that, accused gave 2 cheques to Venkatesh by taking the same from him, the complainant had filed the false case is been denied by him. If the complainant took one cheque while gave loan, accused then why he pleaded contrary to the same that, after lapse of 7 months of alleged borrowing of loan, when he approached the accused gave cheque dated:05.12.2015. If at all, the accused gave cheque after lapse of 7 months from the date of borrowal, which was the said cheque and what happened the cheque given by the accused on the date of borrowing of loan itself created doubt and the same is not been cleared by the complainant herein. It was also attack on the complainant that, since the complainant got misused another cheque of the accused, he avoided to produce the complainant bank statement, but he denied the same. The non production of said bank statement, it needs to draw the inference as such. The PW.1 has not denied the presentation of cheque earlier 46 Judgment C.C.No.5187/2016 dated:25.11.2015 by stating that, he does not remember. It was suggestion made to him that, since the date was mentioned or not, Venkatesh took another cheque from the accused on 05.12.2015 is been denied by him.
47. The accused through out the case has extracted contrary statement from the complainant against his own contention recited in his legal notice at Ex.P3 coupled with pleading and documentary evidence. On the one stretch the complainant has deposed, accused gave questioned cheque after lapse of 7 months from the date of borrowal on 24.02.2014. On the other stretch the complainant has deposed, while he lent loan to the accused, he remember as to receipt of one cheque from the accused which contradicts his own case and facts and circumstances. No person for the period of 7 months without interest without obtaining any documentary evidence or at least in the presence of witnesses, would not take risk to pay the said huge amount.
48. That apart, no person is give or obtain the cheques after lapse of one year 10 months. As per say of complainant, he lent loan on 24.02.2014 after lapse of 7 months, may be in the month of November, 2014, he took cheque from accused 47 Judgment C.C.No.5187/2016 dated:05.12.2015 by mention the date after 1 year 3 months is highly difficult to accept. He categorically admitted, after alleged lent of loan about the period of 1 year 10 months, he not secured any document as to the security of the said loan from the accused. The complainant has not pleaded, the accused gave post dated cheque. Even he took cheque dated:05.12.2015 about 1 year 3 months, how the cheque is validity more than period 3 months itself creates doubt. It also leads for presumption that, the complainant had signed blank cheque of the accused got obtained through unexplained source, therefore, he pleaded as such. Totally the evidence of PW.1 is not corroborates his case with documentary evidence. It is the complainant needs to examine Venkatesh, in order to remove the cast clouded by the accused, as to handed over his cheque to him in connection to the chit transaction which got misused by the complainant and Venkatesh in colluded with each other.
49. If at all, the complainant knew the accused definitely, he must know the correct business address of the accused, but whatever the notice issued at Ex.P7 got returned for the reasons insufficient address. However, during the course of cross of PW.1, he categorically admitted that, on 24.02.2014 he gave Rs.95,000/- to the accused through self cheque. On the very 48 Judgment C.C.No.5187/2016 same day, again he gave Rs.6 lakhs to the accused itself creates doubt. The complainant has utterly failed to demonstrate his case by producing clear, convincing evidence. The accused has successfully demonstrated his probable defence as to nexus between complainant and Venkatesh and by colluding each other got misused the 2 signed blank cheques of accused as per Ex.P1 / Ex.D4 and D6 which gave signed blank cheques to Venkatesh in connection to the chit transaction. The complainant has utterly failed to remove the doubtful circumstances created by the accused as to the bonafidness of the transaction. Therefore, it made clear that, accused has successfully proved his probable defence which goes to the root of the case of complainant and collapsed the very case. Despite, the accused since demanding by way of caused reply through out the case has made serious allegation against the complainant, he was not diligent in prove his case by furnishing satisfactory, corroborative, convenience evidence, as he failed to prove his case. Hence, the accused is entitled for benefit of doubt for acquittal.
50. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has 49 Judgment C.C.No.5187/2016 humbly gone through the decision relied by both parties apart from the following decisions.
In the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
"Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
51. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheque bares his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act - Rebuttal of cheque in question was allegedly issued 50 Judgment C.C.No.5187/2016 by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
52. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.6 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
53. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, he is not liable to pay Ex.P1 cheque amount of Rs.6 lakhs 51 Judgment C.C.No.5187/2016 and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and he is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken his defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.6 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Apart from that, in a decision reported in, KCCR 12 (3) page 2057, the Hon'ble Apex Court held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".52
Judgment C.C.No.5187/2016
54. In the case on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show his financial capacity to lend an amount of Rs.6 lakhs to accused. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheque for discharge of Rs.6 lakhs does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.6 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
55. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Ex.P1 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
56. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the 53 Judgment C.C.No.5187/2016 requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
57. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.6 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his case beyond all 54 Judgment C.C.No.5187/2016 reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
58. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 6 th day of November
- 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Sundaraiah List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque
55
Judgment C.C.No.5187/2016
Ex.P1(a) : Signature of accused
Ex.P2 : Bank endorsement
Ex.P3 : Office copy of legal notice
Exs.P4 & P5 : Postal receipts
Ex.P6 : Postal Acknowledgment card
Ex.P7 : Unserved R.P.A.D., cover
Exs.P7 to P12 : Statements of account
Ex.P13 : Khatha Certificate
Ex.P14 : Khatha Extract
Ex.P15 : Proposed resident plan
List of Witnesses examined on behalf of the defence:
DW.1 : Madhu Shetty DW.2 : Durgegowda
List of Exhibits marked on behalf of defence:
Exs.D1 & D2 : Photographs
Ex.D3 : C.D.,
Ex.D4 : True copy of cheque bearing No.685255
Ex.D5 : True copy of bank endorsement
Ex.D6 : True copy of cheque bearing No.685256
Ex.D7 : True copy of bank endorsement
Ex.D8 : Summary of account
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
56
Judgment C.C.No.5187/2016
06.11.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are
absent. No representation from both side
advocates, despite, web-host the case
proceedings and intimate the date of
pronouncement of judgment. Hence, as
per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.