Bangalore District Court
Lakshman vs B.T.Narayanaswamy on 30 July, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 30th day of July - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.9805/2015
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Lakshman,
S/o.Venkatarangaiah,
Aged about 58 years,
No.12 'A' Main Road,
Rajajinagar 6th Block,
Bengaluru-10.
(Rep. by Sri.D.M.Kumar, Adv.)
V/S
Accused : B.T.Narayanaswamy,
S/o.B.Thimmegowda,
Aged about 49 years,
No.556/67, 1st Floor,
7th Main Road, 5th Cross,
Vijayanagar, Bengaluru-40.
(Rep.by Sri.Arun.K, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 30.07.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.9805/2015
JUDGMENT
The complainant has presented the instant complaint against the accused on 24.02.2015 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.4,60,000/-.
2. In precise, the facts of the complainant case is:
The accused has been friend to the complainant since long time and he had wine shop at Koramangala on contract. The accused in order to put stock to his wine store and for his family necessities, during the 1st week of February, 2012, sought for loan of Rs.4,60,000/- from the complainant and undertakes to repay the same within 2 years. Since, accused was family friend of the complainant, on faith in order to help him, the complainant had lent sum of Rs.4,60,000/- on 04.02.2012 and he undertakes to repay the same within 2 years, while borrow the said loan, the accused was executed the loan agreement.
The complainant has further contended that, when after lapse of 2 years during the 1st week of February, 2014, the complainant had approached the accused and asked him for repayment of the said loan, the accused was expressed his difficulties and sought for another 6 months time for repayment of Judgment 3 C.C.No.9805/2015 the loan. Since, he was the friend of complainant, he gave 6 months time to him for repayment. Again, after lapse of 6 months time, when the complainant was approached the accused and demanded for repayment of loan, the accused assured him would pay on tomorrow, and troubled him and finally in the 1st week of September, 2014, he by mentioned date:02.11.2014 gave cheque bearing No.460125 drawn on Canara Bank, Adhichunchanagiri Mutt Branch, Bengaluru-40.
The complainant has further alleged that, again on 02.10.2014 the accused along with his wife Smt.K.Geethalakshmi went to the complainant and got executed one letter and instructed to present the said cheque on 06.11.2014 itself and both were signed as witnesses. On 03.11.2014, when complainant has presented the said cheque for encashment through his banker viz., Karnataka Bank Ltd., Rajajinagar Branch, Bengaluru. But, as per the bank endorsement dated:11.11.2014 the said cheque came to be dishonoured for the reasons "Funds Insufficient" and the said fact was intimated to the accused. By that time, the accused informed to the complainant that, he expected amount was not came to the accused in time, therefore, not able to deposit for encash the said cheque and by apologized the same and requested him to represent the said cheque for Judgment 4 C.C.No.9805/2015 encashment on 16.12.2014. The complainant by believing his words, on 16.12.2014 got represented the said cheque for encashment to his banker, but as per memo dated:18.12.2014 the said cheque came to be dishonoured for the reasons there is no sufficient funds in the account of the accused. Whenever the complainant tries to intimate the said fact to the accused, the accused avoided to contact him.
The complainant has further contended that, on 12.01.2015 by way of R.P.A.D. as well as speed post he got issued legal notice to the accused, demanding him to pay the amount covered under the cheque. But the acknowledgment not yet returned, therefore, his counsel lodged complaint before the concerned post office on 03.02.2015, but the reply given by the postal authority discloses, it was delivered to the accused on 14.01.2015 itself. The speed post was also delivered on the said day, despite that, accused had not paid amount covered under the cheque. 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 recorded the sworn statement. Since made out prima-facie Judgment 5 C.C.No.9805/2015 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 the 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 P14(a). To prove his case, the complainant has choosen to examined one witnesses by name B.K.Rajanna as PW.2. The PW.1 and PW.2 were 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 the answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1 and got marked Ex.D1 and also subjected for cross-examination by the advocate for the complainant.
7. Heard arguments of both side counsels.
Judgment 6 C.C.No.9805/2015
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, the amount made mentioned in Ex.P1 cheque for sum of Rs.4,60,000/- is the legally existing debt payable by the accused to the complainant?
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 UNDISPUTED FACTS:-
10. The fact that, the complainant and accused are known to each other is not in dispute. The fact that, the cause title address of the complainant and accused made mentioned in the complaint is not in dispute. The fact that, whatever the signatures of the complainant and accused as found in Ex.P9 loan agreement Judgment 7 C.C.No.9805/2015 dated:04.02.2012 coupled with signatures of witnesses by name B.K.Rajanna subject to its execution is not in dispute.
The fact that, the signatures of the accused and his wife as found in Ex.P10 marked as Ex.P10(a) and P10(c) and witness at Ex.P10(b) by name B.K.Rajanna is not in dispute. The fact that, the accused, after complainant got issued the legal notice immediately after dishonour of the cheque, the accused got lodged complaint got submitted representation in the form of complaint on 23.07.2015 as per Ex.P12 to various authorities and execution is not in dispute. The fact that, the signature found in the Ex.P12 pertaining to accused, his wife and son as marked at Ex.P12(a) to (c) is not in dispute.
The fact that, in pursuance of lodged complaint by the accused which refer to Police Inspector of Vijayanagar Police Station, Bengaluru, the complainant therein on 16.09.2015 gave his statement by affixed his signature as found in Ex.P13 is not in dispute. The fact that, questioned cheque at Ex.P1 and very particularly signature of accused made mentioned at Ex.P1(a) is not in dispute. The fact that, as per Exs.P2 and P3 the questioned cheque got dishonoured is not in dispute. The fact that, Ex.P4 legal notice issued through cause title address of the Judgment 8 C.C.No.9805/2015 accused is not in dispute. The fact that, for having not return of acknowledgment while issued legal notice by way of R.P.A.D. and speed post the advocate for complainant as per Ex.P7 got submitted complaint before postal authority and in turn, they gave reply at Ex.P8 is not in dispute. The above undisputed facts no need proof.
11. 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.
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 P14(a), they are:
a) Ex.P1 is the cheque bearing No.460125 issued by the accused for sum of Rs.4,60,000/-
dated:03.11.2014, drawn on Canara Bank, Adichunchanagiri Mutt Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Exs.P2 and P3 are the Bank Memos dated:
18.12.2014 & 25.03.2015.
d) Ex.P4 is the Legal Notice dated:12.01.2015.
e) Exs.P5 and P6 are the Postal receipts.
f) Ex.P7 is the complaint lodged by complainant counsel before the postal authority.
g) Ex.P8 is the settled reply dated:06.02.2015 issued by postal department.
Judgment 9 C.C.No.9805/2015
h) Ex.P9 is the loan agreement dated:04.02.2012 executed by accused herein in favour of complainant.
i) Ex.P9(a) and P9(b) are signatures are accused and PW.2.
j) Ex.P10 is the letter dated:02.10.2014 executed by accused in favour of complainant.
k) Ex.P10(a) and P10(c) are signatures of accused, PW.2 and one Smt.Geethalakshmi.
l) Ex.P11 is the true copy of letter dated:28.07.2015 issued by office of Police Commissioner, Bengaluru to the Police Inspector of Vijayanagar Police Station, Bengaluru.
m) Ex.P12 is the copy of complaint dated:23.07.2015 lodged by accused herein against complainant and others to the various authorities.
n) Ex.P12(a) to P12(c) are the signatures of accused, his wife and one B.N.Tusharnandi.
o) Ex.P13 is the true copy of statement dated:
16.09.2015 given by the complainant herein before the Vijayanagar Police.
p) Ex.P14 is the private complaint and
q) Ex.P14(a) is signature of complainant.
12. The PW.1 was subjected for cross-examination from the advocate for accused in part on 08.08.2018 and when his request matter was adjourned for further cross has not made use of opportunity, further cross-examination of PW.1 as per order dated:27.08.2018 was taken as nil.
13. Thereafter, in order to prove the case of complainant, he got choosen to examined one B.K.Rajanna as witness to filed Judgment 10 C.C.No.9805/2015 affidavit evidence and examined as PW.2. The PW.2 in his affidavit evidence has contended that, he run bar and restaurant and he knew the complainant and accused since long time and he knew the facts of the present case.
The PW.2 has further contended that, the complainant on 04.02.2012 gave Rs.4,60,000/- to the accused as loan and on the very same day, the accused got executed loan agreement dated:04.02.2012, he was present by that time and affixed his signature as witness. The accused also undertakes to repay the said loan within 2 years.
The PW.2 has further contended that, the accused for repayment of loan of Rs.4,60,000/-, got issued cheque drawn on Canara Bank, for the same by mentioned the date:03.11.2014. The accused on 02.10.2014 along with his wife K.Geethalakshmi came to the complainant and got executed one letter and intimated the complainant to present the said cheque for encashment on 06.11.2014. To the said letter, the wife of accused and PW.2 were signed as witnesses. The said cheque came to be dishonoured and present case has been instituted. The PW.2 had identified the signature in the loan agreement at Ex.P9 it was marked as Ex.P9(c). Accordingly, he also identified Judgment 11 C.C.No.9805/2015 the signature of the accused , his wife at Ex.P10. Therefore, the same got marked at Ex.P10(b) and (c). The PW.2 subjected for cross-examination. With that, the complainant got closed his side.
14. 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., then he gave his statement by stating that:
"£Á£ÀÄ 2012gÀ°è ¦AiÀiÁð¢¬ÄAzÀ gÀÆB1 ®PÀë ¸Á® §rØAiÀÄ ªÉÄÃ¯É ¥ÀqÉzÁUÀ, £Á£ÀÄ ¨ÀszÀævÉUÁV DvÀ¤UÉ ¸À» ªÀiÁrzÀ SÁ° 4 ZÉPÀÄÌUÀ¼À£ÀÄß ¤ÃrgÀÄvÉÛãÉ. ¦AiÀiÁ𢠣À¤ßAzÀ ¥Àæw±ÀvÀ ±ÉÃPÀqÀ 20 ªÀiÁ¹PÀ §rØUÁV ¤ÃrzÀÄÝ, DvÀ¤UÉ ¸ÀĪÀiÁgÀÄ 7 jAzÀ 8 ®PÀë §rØAiÉÆA¢UÉ 2014 gÀªÀgÉUÉ PÀnÖ ªÀÄÄV¹gÀÄvÉÛãÉ. £Á£ÀÄ £ÀAvÀgÀ ªÀåªÀºÁgÀ ¤°è¹zÀÝgÀÆ, ZÉPÀÌ£ÀÄß ªÀÄgÀ½¸À®Ä PÉýzÀgÀÆ ZÉPÀÌ£ÀÄß ªÀÄgÀ½¸ÀzÉ £À£Àß «gÀÄzÀÞ ¸ÀļÀÄî ¥ÀæPÀgÀt zÁR°¹zÁÝgÉ. ZÉPï£À ªÉÆvÀÛ ¤ÃqÀ®Ä £Á£ÀÄ ¨ÁzÀå£À®è."
15. The accused also choosen to entered into witness box and orally examined as DW.1 on oath. Wherein he deposed that, in the year 2012, he borrowed sum of Rs.1 lakh on meter interest at 20% p.m., and by that time, the complainant took 4 singed blank cheques from him. The accused in connection to the said loan including the interest got paid sum of Rs.7 lakhs in the year 2014, Judgment 12 C.C.No.9805/2015 while he did Boochu Liquors business. Later, in the month of July, 2014, he sustained loss, hence got closed his business. When complainant asked the accused to pay the interest, B.K.Rajanna and some other persons in the police uniform along with other 4 to 5 persons came inside his house and made galata. Even, by threatening the complainant, got obtained signatures of him to the blank e-stamp paper and blank papers forcefully and threatened his wife and son. In that regard, when he went to the Vijayanagar Police Station to lodge complaint, they have not received the same. Therefore, as found in Ex.P12, he lodged complaint / representation to the Chief Minister, Home Minister and other authorities by alleging, the meter interest business run by the complainant and caused trouble to him and he identified the letter issued by the Under Secretary of Chief Minister, Vidana Soudha, Bengaluru dated:30.07.2015 as Ex.D1. On the said complaint Vijayanagar Police called the accused and enquired and also directed the complainant and other persons who are doing the interest business not cause trouble to the accused. When the accused approached loan of Rs.1 lakh from the complainant, by that time, he took 4 cheques, by misusing one of the cheque and filed the false case. He himself not filled the said cheque. Hence, he is not liable to pay amount covered under the said cheque.
Judgment 13 C.C.No.9805/2015 Hence, prayed for acquittal. In support of his contention, he
choosen to produced one document at Ex.D1. It is:
a) Ex.D1 is the letter dated:30.07.2015 issued by Under Secretary to chief Minister to accused herein.
16. 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:
a) ILR 2008 KAR 3635
b) 2000 DCR 199
17. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
18. On going through the rival contentions of the parties, it made clear that, complainant based on the questioned cheque at Ex.P1 brought the present case by alleging after dishonour of the cheque, he gave legal notice as per Ex.P4, despite its service, as required he not rectified his mistake by paying money, but continued the same, hence, the complainant was lodged. Whereas, the accused has taken altogether different defence and not admitted the case of complainant and defended the matter all Judgment 14 C.C.No.9805/2015 along. In respect of the knowingness of complainant and accused from the point of personally as well as other undisputed things have narrated earlier in the first part of the discussion. Therefore, it made clear that, accused has not admitted the claim of complainant and he strongly attack on the contention of the complainant with specific set up defence.
It is require to cite the decision reported in 2019 SCC Online MAD 5541, in a case between P.Murali V/s BMD Hotels and Resorts Private Ltd. In the said dictum it was pleased to observed that, the presumption under Sections 118 and 139 of Negotiable Instruments Act, will live, exist and survive and shall end only when the contrary is proved by the accused i.e., the cheque was not issued for consideration and discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima- facie case for a party for whose benefit it exists.
19. Wherein, it was also observed that, the use of phrase "until contrary is prove" in Section 118 of the Negotiable Instruments Act, and used of the words "unless the contrary is prove" in Section 139 of Negotiable Instruments Act read with definition of "may presume and "shall presume" as given in Section 4 of Evidence Act, makes it at once clear that, presumption to be Judgment 15 C.C.No.9805/2015 raised under both the provision are rebuttable. When a presumption is rebuttable it only points out that, the party on whose lies the duty of going forward with evidence, on the fact presume and when that party has produced evidence fairly and reasonably tending to show that, the real fact is as not presumed the purpose of presumption is over.
20. As per Sections 118 and 139 of Negotiable Instruments Act, it made clear that, unless contrary prove, it shall presume that, the questioned cheque was issued by the accused for discharge of existence of legally recoverable debt. Therefore, it made clear that, it is the initial burden on the accused to prove his probable defence in order to rebut the case of complainant.
21. The present case emerged under the provisions of Negotiable Instruments Act cases, it is the Special Act. Wherein, specific burden by virtue of insertion of Sections 118 and 139 of Negotiable Instruments Act is created on the accused to rebut the statutory presumption as well as facts raised by the complainant. Therefore, as per Section 106 of Evidence Act, since the accused has taken up the contention specifically within the knowledge of him, it is burden on him to prove the said fact. The accused made Judgment 16 C.C.No.9805/2015 use evidence to rebut the presumption, but mere denial regarding existing of debt shall not serve any purpose.
22. The accused may adduce direct evidence to prove that, the questioned cheque was not supported by any consideration and that there was no debt or liability to the discharged by him. However, the court need not insist in every case, the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither payable nor contemplated. At the same time, it is clear that, bare denial of passing of consideration and existence of debt, apparently would not serve purpose of the accused. Something which is probable, as to be brought on record for getting the burden of proof shifting to the complainant.
23. To disprove the presumption, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that, the consideration and debt did not existence was so probable that, a prudent man would under circumstances of the case, act upon the plea they did not exist.
24. In that backdrop, it require the appreciate the probable defence taken by the accused in the present case. On careful Judgment 17 C.C.No.9805/2015 scanning of the documents produced by the rival parties, it made clear that, the complainant is used to reside in the cause title address of the complaint, the same is also reflected in Ex.P12 the representation submitted by the accused to the various authorities by complaining against the complainant and other persons as to run the illegal meter interest money lending business. Therefore, it made clear that, whatever the admitted address of the accused is also reflected in the Ex.P4 legal notice. The postal authority gave the report as per Ex.P8 by way of reply against the complaint lodged by the complainant as per Ex.P7 stating that, the said Ex.P4 legal notice was delivered to the address of the accused. Though, the complainant had brought the present case with the said specific contention, in that regard, as to due service of legal notice at Ex.P4 to the accused is not been disputed by the complainant. Therefore, it made clear that, it has to draw the adverse inference against the accused that, despite, he got received legal notice issued by the complainant to his correct address; he not caused any reply at the earliest stage. Thereby, the complainant had complied Section 138(c) of Negotiable Instruments Act in order to maintain the present case. It is significant fact to note that, despite, the legal notice was delivered to the correct address of the accused as he admitted in the Judgment 18 C.C.No.9805/2015 present case, for the reasons better known to him, he not caused any reply. The non reply the legal notice itself is not enough to favour the complainant to prove the guilt of the accused.
25. The accused after mark his appearance in the present case, choosen to cross-examined the PW.1 and 2 coupled with gave 313 of Cr.P.C. statement apart from entered into witness box and examined as DW.1. As said earlier, the PW.1 has not subjected for further cross-examination by virtue of the order sheet entry dated:27.08.2018 and he partly subjected for cross- examination by the advocate for accused. Wherein, also he placed his defence by way of suggestion that:
"DgÉÆæUÉ £Á£ÀÄ gÀÆ.4,60,000/- £ÀÄß ¸Á®ªÁV PÉÆnÖzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæUÉ 2011 gÀ°è £Á£ÀÄ DgÉÆæUÉ gÀÆ.1 ®PÀëªÀ£ÀÄß ¸Á®ªÁV ¤ÃqÀĪÁUÀ, £Á£ÀÄ DvÀ¤AzÀ ¨ÀszÀævÉUÁV ¸À» ªÀiÁrzÀ ZÉPï£ÀÄß ºÁUÀÆ SÁ° ¸À» ªÀiÁrzÀ E-bÁ¥Á PÁUÀzÀªÀ£ÀÄß ¥ÀqÉ¢zÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæ ¥Àæw wAUÀ¼ÀÄ gÀÆ.25,000/- zÀAvÉ, MlÄÖ gÀÆ.7 ®PÀëªÀ£ÀÄß £À£ÀUÉ ¥ÁªÀw¹, D ¸Á®ªÀ£ÀÄß ªÀÄgÀÄ ¥ÁªÀw¹zÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. 2012 gÀ°è gÀÆ.1 ®PÀëzÀ ¸Á® DgÉÆæ ¥ÀqÉ¢zÀÝgÀÄ PÀÆqÀ, DvÀ¤AzÀ §®ªÀAvÀªÁV ¤¦.9 E-bÁ¥Á PÁUÀzÀPÉÌ DgÉÆæ ¸À»AiÀÄ£ÀÄß ¥ÀqÉ¢zÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è."
Judgment 19 C.C.No.9805/2015
26. On meticulous perusal of the said testimony of PW.1, on the one hand by way of admission it was suggestion made to the PW.1 that, the complainant gave Rs.4,60,000/- loan to the accused, but PW.1 though, he came up with specific set up facts by alleging that, he lent Rs.4,60,000/- to the accused, he denied the said suggestion. From the meticulous perusal of the said evidence of PW.1, it reveal the admission made by the accused as to receipt of loan of Rs.4,60,000/- from the complainant. The said testimony also further reveal that, in the year 2011 when complainant gave loan of Rs.1 lakh to the accused, by that time, complainant took signed blank cheques and singed blank e-stamp paper from the accused is been denied by the PW.1. On meticulous perusal of the true suggestions made from the side of accused it reveal 2 transactions. The first suggestion discloses, the admission of borrowing of loan of Rs.4,60,000/- and it also made clear that, it was also admitted the borrowing of loan of Rs.1 lakh during 2011 on the security of signed blank cheque and singed e-stamp paper. However, PW.1 has denied the same. Though, he came up specific facts in the present case, he denied both the suggestions and he has not clarified whatever the true transaction held between them. The said cross-examination of PW.1 also reveal that, the suggestion made to complainant that, Judgment 20 C.C.No.9805/2015 against the borrowing of loan, the accused got repaid the same at Rs.25,000/- p.m. and in all he paid Rs.7 lakhs and got cleared the loan to the complainant. In order to show that, the accused got repaid loan to the complainant as such, no particulars were suggested nor produced any document.
27. No doubt, to prove the negative evidence, it cannot be strictly expected to produce the documents. But at least for believing the contention of the accused as to repayment of Rs.7 lakhs to the complainant, at Rs.25,000/- p.m. it requires to 28 months time about 2 years 4 months. At least in between those periods for having established the repayment of Rs.7 lakhs to the complainant, the accused have suggested on which date he got repaid and on which basis he collected the said amount could have been suggested to PW.1, but the same is not done. In order to make believe his suggestion of repayment of Rs.7 lakhs no particulars were suggested to PW.1. That apart, the said testimony at the fag end it discloses, in the year 2012 the accused got borrowed loan of Rs.1 lakh, forcefully the complainant took signatures to the e-stamp paper at Ex.P9 is been denied.
28. On meticulous perusal of the said testimony of PW.1, it reveals the different years as to the alleged borrowing of loan.
Judgment 21 C.C.No.9805/2015 Even in respect of alleged borrowal of loan of Rs.1 lakh, the accused was suggested to PW.1 that, it was in the year 2011 as well as 2012. Therefore, it made clear that, the accused himself is not confirmed exactly when he borrowed the loan of Rs.1 lakh, in that regard, no evidence is been placed by the accused. Though, PW.1 has denied the said suggestion, but case was that, on 04.12.2012, he lent Rs.4,60,000/- to the accused on obtaining loan agreement at Ex.P9 and he undertakes to repay the same within 2 months, but not repaid, when he asked, finally the accused gave cheque at Ex.P1 on 02.11.2014 itself.
29. On meticulous perusal of the contention taken by the accused with regard to the alleged loan transaction, it was recited in the complaint lodged by the accused at Ex.P12 dated:23.07.2015. It is pertinent to note that, the complainant after dishonour of the questioned cheque got issued legal notice on 12.01.2015, thereafter, on 23.07.2015, the accused got submitted representation to the various authorities made mentioned therein. The accused got admitted his signature along with his wife and son. Even, he clearly admitted the representation submitted by him to the concerned authorities. Therefore, after the complainant got issued legal notice based on the dishonour of cheque at Ex.P1, before the mark of accused in Judgment 22 C.C.No.9805/2015 this court, he took his contention with regard to financial transaction held between complainant and accused before the other authorities by way of submission of representations. Therefore, the very admitted facts and circumstances made by the accused in his previous statement in the form of representation, it requires to reproduce in order to better understanding his transaction kept in the mind of accused at the earliest point of time. The relevant portion of para No.2 in Ex.P12 representation submitted by the accused, runs thus:
"ªÉÄîÌAqÀ ¤ªÁ¸ÀzÀ°è ªÁ¸ÀªÁVgÀĪÀ ©.n.£ÁgÁAiÀÄt¸Áé«ÄAiÀiÁzÀ £Á£ÀÄ «.®PÀëäuï ©£ï ªÉAPÀlgÀAUÀAiÀÄå, £ÀA.239 12£Éà ªÀÄÄRågÀ¸ÉÛ, 6£Éà ¨ÁèPï, gÁeÁf£ÀUÀgÀ, ¨ÉAUÀ¼ÀÆgÀÄ-10 («.®PÀëäuï£À ªÉƨÉÊ¯ï ¸ÀASÉåB9141750713, 7411887178, 9632570400) gÀ°è EªÀjAzÀ gÀÆB4,60,000/- (£Á®ÄÌ ®PÀëzÀ CgÀªÀvÀÄÛ ¸Á«gÀ gÀÆ¥Á¬Ä) ªÁå¥ÁgÀzÀ C©üªÀÈ¢ÞUÁV vÉUÉzÀÄPÉÆArgÀÄvÁÛ£É. ¢£ÁAPÀB04.02.2012 gÀAzÀÄ ±ÉÃPÀqÀ 6% «ÄÃlgï §rØAiÀÄAvÉ vÉUÉzÀÄPÉÆArgÀÄvÉÛãÉ. EªÀjUÉ JgÀqÀÄ ªÀµÀð £Á®ÄÌ wAUÀ½UÉ (wAUÀ¼À §rØ gÀÆB25,000X28 wAUÀ¼ÀÄ = gÀÆB7,00,000/-) «ÄÃlgï §rØAiÀÄ£ÀÄß ¤ÃrgÀÄvÉÛãÉ. EªÀjUÉ £Á£ÀÄ DArªÀiÁåAqï ¥ÉÇæãÉÆÃmï JgÀqÀPÉÌ ¸À» ªÀiÁrPÉÆnÖgÀÄvÉÛãÉ. PÉ£ÀgÁ ¨ÁåAPï£À (D¢ZÀÄAZÀ£ÀVj ±ÁSÁ ªÀÄoÀ) £Á®ÄÌ ZÉPÀÄÌUÀ¼À£ÀÄß ¤ÃrgÀÄvÉÛãÉ. ªÁå¥ÁgÀzÀ°è £ÀµÀÖ GAmÁV ¢£ÁAPÀB01.07.2014 gÀAzÀÄ £ÀªÀÄä ªÁå¥ÁgÀªÀ£ÀÄß Judgment 23 C.C.No.9805/2015 ªÀÄÄaÑgÀÄvÉÛãÉ. £ÀªÀÄä ªÁå¥ÁgÀªÀ£ÀÄß ªÀÄÄZÀÑ®Ä ªÀÄÆ® PÁgÀt F ªÉiîÌAqÀ ªÀåQÛAiÉÄà DVgÀÄvÁÛ£É."
30. On careful reading of the above recitals and allegations made against the complainant by the accused, it made clear that, for the purpose of development of business of the accused on 04.02.2012 he got received the loan of Rs.4,60,000/- on the meter interest at 6% p.m. By reciting so, the accused got admitted the borrowing of loan of Rs.4,60,000/-. The said admission is also reveal that, in the cross-examination of PW.1. Therefore, the accused by way of suggest the PW.1 as well as by lodge complaint at Ex.P12 before the various authorities, he categorically admitted the borrowing of loan of Rs.4,60,000/- from the complainant. Thereby, the complainant had proved the alleged lent of loan of Rs.4,60,000/- as urged in the present complaint stands proved.
31. On going through the said recitals at Ex.P12, it also revealed another contention taken by the accused as to payment of interest at 6% p.m. meter interest and over the period of 2 years and 4 months, for the period of 28 months, he got paid Rs.25,000/- p.m. and in all paid Rs.7 lakhs as interest. Thereby, it made clear that, the accused has contended that, he got repaid Judgment 24 C.C.No.9805/2015 Rs.7 lakhs as interest at 6% p.m. Taken in to the said contention, 6% interest p.m. becomes 72% p.a. Admittedly, the said interest is exorbitant and no financial institute would impose such kind of huge interest. It is pertinent to note that, accused in that recitals as contended that, to the complainant he gave 2 signed On demand promissory notes and consideration receipts and 4 cheques pertaining to his Canara Bank, Adhichunchanagiri Branch. As per his contention he contended that, in connection to Rs.4,60,000/- loan transaction, he gave those documents to the complainant. More particularly he contended, on account of loss sustained, he got closed his business on 01.07.2014. More particularly, he stated for closure of the said business, the complainant is the reason.
32. On meticulous perusal of the said contention, it was serious allegation made against the complainant as to got receipt of interest at 72% p.a. and in all Rs.7 lakhs he got received, in connection to the loan of Rs.4,60,000/- got paid on 04.02.2012. No doubt, as discussed earlier, the negative burden cannot be shifted on the accused to furnish documents as to the meter interest imposed by the complainant and collection of Rs.7 lakhs at Rs.25,000/- p.m. for the period of 28 months. The accused clearly admitted the borrowing of loan of Rs.4,60,000/- but Judgment 25 C.C.No.9805/2015 strongly contended that, he got paid the interest of Rs.7 lakhs at 72% p.a. It is also pertinent to note that, the amount of Rs.4,60,000/- is not a small amount and any prudent person without expect any profit or interest normally would not lent loan that too, for the long period of 2 years. Therefore, it has to be presume from the contra evidence set out by the accused since complainant had used to collect the interest as such, at Rs.25,000/- p.m. for the period of 28 months in all Rs.7 lakhs, therefore, he kept mum from 04.12.2012 till initiate proceedings of Ex.P1 cheque dated:03.11.2014. The filing of complaint at Ex.P12, it made clear that, it is the complaint lodged by the accused, but the same was referred as per Ex.D1 to the concern Police Station to initiate necessary action by the Under Secretary of Chief Minister, Vidhana Soudha, Bengaluru, to the Commissioner of Police, then the concern police while an enquiry of the complainant and got recorded his statement at Ex.P13. Wherein also the complainant has admitted the alleged lent of loan of Rs.4,60,000/- and undertakes to not to ask to repay the said loan by visiting his house and requested to close the complaint lodged by the accused. Regarding the payment of interest as alleged by the accused, the complaint lodged by him as per Ex.P12 to the various authorities by alleging, the Judgment 26 C.C.No.9805/2015 complainant and other persons alleged to be did the meter interest money lending business. The very contention raised in the Ex.P12 complaint of the accused lodged before various authorities, by made allegation against the complainant and others, when he tendered for cross-examination, no suggestions were made. During the course of cross of DW.1, he also withstood his contention by contending that, in the year 2012 he borrowed loan of Rs.1 lakh on meter interest at 20% by gave 4 signed blank cheques as security and repaid Rs.7 lakhs as interest from the business of liquor and got cleared the loan. The DW.1 in his chief-examination stating against the loan of Rs.1 lakh, he paid interest Rs.7 lakhs at 20% p.m. The said allegation is not in accordance with the cross-examination of PW.1 as well as the allegations made in the complaint at Ex.P12 submitted to the various authorities. In order to show that, he paid Rs.7 lakhs interest as such, no particulars been furnished by him. The accused was very much silent as to borrowing the loan of Rs.4,60,000/- in his chief-examination. But in the cross- examination, he denied the borrowing of loan of Rs.4,60,000/- and taken up the contention that, only borrowed loan of Rs.1 lakh on the security of 5 signed blank cheques.
Judgment 27 C.C.No.9805/2015
33. Since, the accused has utterly failed to demonstrate that, whatever the amount of Rs.7 lakhs as interest already paid by him as made mentioned in the Ex.P12 complaint, whether it was in respect of the admitted loan of Rs.4,60,000/- or in respect of the alleged loan of Rs.1 lakh borrowed during 2012 is not been clarified and in that regard no suggestion made either to PW.1 and 2 or gave any explanation in his cross-examination. Regarding the complainant alleged lent of loan on interest would have been revealed during the course of cross of DW.1, the relevant portion runs thus:
"£Á£ÀÄ ªÁ¶ðPÀ ±ÉÃPÀqÀ 18 ¥Àæw±ÀvÀ §rØAiÀÄ£ÀÄß PÉÆqÀĪÀÅzÁV w½¹ ¦AiÀiÁð¢¬ÄAzÀ gÀÆ.4,60,000/- ªÀ£ÀÄß £Á£ÀÄ ¸Á®ªÁV ¥ÀqÉ¢zÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è."
34. On meticulous perusal of the said cross-examination of DW.1, it reveal that, the complainant lent the loan of Rs.4,60,000/- for the interest at 18% p.a. By way of the said suggestion, the complainant got clearly admitted for expecting the interest he lent loan. In order to doing the said money lending business, it was not the contention of complainant that, he took required licence under the relevant provisions of money lenders act. Therefore, it presume and believe that, since complainant lent the loan of Judgment 28 C.C.No.9805/2015 Rs.4,60,000/- on interest, till he obtained the alleged cheque dated:03.11.2014 for the period of 2 years, he got received interest, therefore, he kept silent all these days. In order to show that, complainant took the interest at 18% from accused; he himself not produced any document. On the other hand to show that, the accused got paid interest either 72% p.a. as mentioned in Ex.P12 or 20% p.m., exorbitant rate or interest were paid by the accused, he not produced any documents or explanation. From the one thing it can make out that, the complainant got received interest from the accused over the period of 2 years till present the questioned cheque, what was the interest the complainant got received other than the allegation made mentioned in the Ex.P12 of Rs.25,000/- p.m. at 72% p.a. at Rs.7 lakhs got received as not been suggested to DW.1, though PW.1 got himself produced Ex.P12 complaint lodged by accused.
35. From the rival contentions coupled with oral and documentary evidence at Ex.P12, it made clear that, the complainant over the period of 2 years got received the interest without obtaining any licence. Therefore, the very act of the complainant in doing money lending business is violation of provision of Money Lending Act. In order to do the such kind of business, he has not obtained any authorization, at least to show Judgment 29 C.C.No.9805/2015 that, minimum interest at 18% p.a. he collected no document is been furnished by the complainant. In a illegal business of obtaining exorbitant rate of interest the accused cannot be expected to produce any document as the said transaction against the liability. Therefore, since the accused was took the confidence or courage to lodge complaint as per Ex.P12 to the authorized authority, it has to be presume that, he got paid the huge amount of Rs.7 lakhs as interest which is exorbitant, therefore, he, his wife and son by singed the Ex.P12 gave complaint to the various authorities. Unless the accused got suffered from the pressure and swindling of money from him by the complainant, he had no other go to lodge complaint at Ex.P12. Even though, Ex.P12 complaint copy were presented by the complainant, wherein, mad serious allegations against him as reproduced above, no suggestion is made to the DW.1 by stating those averments and allegation made against the complainant as false. Therefore, by way of production of Ex.P12, the adverse inference has to be drawn against the complainant that, since he was doing money lending business for exorbitant rate of interest, the accused venture for lodge complaint as per Ex.P12.
36. As per Ex.P12, since the complainant utterly failed to disclose, what amount he got received as interest till presentation Judgment 30 C.C.No.9805/2015 of alleged cheque at Ex.P1, it has to be infer that, he got received exorbitant rate of interest from the accused at Rs.7 lakhs as interest only, he did not discloses the same. No law permits the complainant to collect the exorbitant rate of interest as alleged by accused. In respect of loan of Rs.4,60,000/-, the payment of interest at Rs.7 lakhs is not in accordance with existed provisions of money lending or any banking law. Therefore, it is the complainant has to explain exactly what amount he was received from the accused, but in that regard, no explanation is forthcoming. No doubt, in the Ex.P12 itself the accused has admitted that, he got paid the interest to the complainant. Therefore, when the accused has contending as such, and undisputed contention of payment of Rs.7 lakhs to the complainant, once again he is expecting to repay Rs.4,60,000/- from the accused, the complainant has not satisfactorily explained.
37. With regard to the questioned cheque is concern the accused has taken up the contention while borrow the loan either Rs.4,60,000/- or Rs.1 lakh as alleged in the year 2012, he gave signed blank cheques to the complainant and same got misused by him. On going through the Ex.P1 cheque, it discloses that, the drawer name is Narayanaswamy.B.T as make out from the Judgment 31 C.C.No.9805/2015 signature at Ex.P1(a). The other writings in words discloses, rupees Five Lakh Sixty thousand only and in the numeral it discloses, Rs.4,60,000/-. Even on meticulous perusal of the date, the date, month and year appears to be modified or material altered. Below that, the alleged signature of the accused which is incomplete is been seen. On close perusal of the Ex.P1 cheque it discloses, there are several defects with regard to date, amount made mentioned in the words as well as numerals. The complainant has projected the present case as to accused gave questioned cheque for Rs.4,60,000/-. No doubt, the fillings in words discloses, the word Five lakhs sixty thousand and numeral discloses, Rs.4,60,000/-. Throughout the case, complainant has projected that, it is the cheque of Rs.4,60,000/- and as nothing say about Rs.5,60,000/- amount mentioned in the words. The accused was rightly pointed the said aspect during the course of cross of PW.1. The relevant portion runs thus:
"¤¦.1 ZÉPï£À°è ªÀÉÆvÀÛ CPÀëgÀzÀ°è LzÀÄ ®PÀëzÀ DgÀªÀvÀÄÛ ¸Á«gÀ JAzÀÄ §gÉ¢zÉ JAzÀgÉ ¸ÀjAiÀÄ®è. CzÀÄ 4,60,000/- JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. CzÀgÀ°è 5,60,000/- JAzÀÄ §gÉ¢zÀÝgÀÆ PÀÆqÀ, £Á£ÀÄ ¸ÀļÀÄî £ÀÄrAiÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. ¤¦.1(J) ¸À» «£ÀB EvÀgÀ §gÀºÀUÀ¼ÀÄ ¨ÉÃgÉ ¨ÉÃgÉ EAPÀÄ ªÀÄvÀÄÛ CPÀëgÀ¢AzÀ PÀÆrzÉ JAzÀgÉ, ¸ÁQë DgÉÆæAiÉÄà D jÃw §gÉzÀÄ vÀAzÀÄ, £À£Àß ªÀÄÄAzÀÉ Judgment 32 C.C.No.9805/2015 ¸À» ªÀiÁrPÉÆnÖzÁÝgÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. DgÉÆæ ZÉPï£À°è MAzÀÄ PÀqÉ ¸À» ªÀiÁrzÁÝgÉ. DgÉÆæ D ZÉPï£ÀÄß §gÉzÀÄPÉÆnÖ®è JAzÀgÉ ¸ÀjAiÀÄ®è."
38. On going through the said cross of PW.1, it was clear cut suggestion made to him by the advocate for accused that, in words the amount is mentioned as Five lakhs sixty thousand is been denied by PW.1, but he stated it was Rs.4,60,000/-. It was suggestion made to PW.1 that, though in words which are mentioned as Five lakhs sixty thousand, the complainant has deposed falsely. There was suggestion made to PW.1, as to other particulars of cheque that, except signature at Ex.P1(a) other writings and fillings are made in different ink and hand writing, but the PW.1 without denying the said suggestion has gave his explanation that, the accused himself wrote and brought the same before him and affixed his signature and gave it to him. More particularly, the PW.1 has deposed that, the accused affixed his signature at one place and denied the suggestion that, he not issued the said cheque to the complainant.
39. On going through the Ex.P1 cheque as discussed earlier, it revealed the 2 signatures of the accused. One at Ex.P1(a) and another below the date, which is incomplete. The PW.1 Judgment 33 C.C.No.9805/2015 categorically admitted, the accused affixed his signature at once, therefore, from his admission it made clear that, whatever the signature found below the date is not of the accused. If it was the accused definitely, it could have been mark, at least could have deposed by the PW.1 and 2 or suggested to DW.1 nothing has been done for the reasons best known to them. Therefore, it made clear that, whatever the signature found incomplete below the correctional date, is not the signature of the accused. Even no suggestion is made that, the accused has to be his 2 signatures on the front side of the cheque, but in that regard no effort is made. On meticulous perusal of the date, it discloses that, the date and month as 03.11 and the year is corrected and it cannot make out whether it was 2011 or 2014. From the presentation of the said cheque to the bank and the slip given it as per Exs.P2 and P3, it discloses on 03.11.2014, the complainant got presented the said cheque for encashment; therefore, the said banker slips were given. Since, there is no sufficient funds in the account of accused, regarding the material alteration is not been notified by the bank authority. The date also appears to be materially altered, in that regard no satisfactory explanation is forth coming from the side of complainant.
Judgment 34 C.C.No.9805/2015
40. That apart, from the hand writing of the admitted signature of the accused at Ex.P1(a) and other fillings it discloses to the bare eyes that, it was not filled by the accused in his hand writing and on the same ink. The signature and hand writing, is not tallied with the ink and hand writing of the other fillings. The PW.1 on which confidence he deposed that, the accused got filled the cheque and affixed his signature in his presence and gave it to him itself creates doubt. If at all, accused himself got filled the cheque, definitely, the hand writing should par with the Ex.P1(a) signature, but it contradicts each other. On going through the words mentioned in the cheque, it is mentioned as Five lakhs sixty thousand in words, which is against the numeral Rs.4,60,000/-. The complainant throughout the case, though prima-facie discloses, the words Five lakhs sixty thousand in the cheque not admitted the same, but projected the case throughout that, it is Rs.4,60,000/-. How the Five can be read as Four is also not been satisfactorily explained by the complainant, in order to make believe the due execution and issuance of questioned cheque. In order to make such alteration in the cheque at Ex.P1 as it attacks personal interest of the accused as made mentioned Section 87 of Negotiable Instruments Act, it requires to obtain the signature of the accused. Whatever the signature below the date the Judgment 35 C.C.No.9805/2015 complainant has deposed it is of the accused. Even with regard to writing mention of amount in words is also, no signature been obtained by the complainant. When he got obtained the serious lacks cheque at Ex.P1, inspite of insist the accused to issue afresh, but he not did so.
Section 87. Effect of Material alteration:
"Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties."
Comments Every unsubstantial alteration is not a material alteration; it is only such alteration as would adversely affect the interests of the other side which can be called material;
where in a promissory note, the rate of interest was left blank and was filled up later without the consent of the promisor, it will be a material alteration invalidating the instrument: It was so held in a decision reported in AIR 1982 Karn. 226 (D.B) in a case between Mysore State Road Transport Corporation V/s. Somashankar.N.R. Judgment 36 C.C.No.9805/2015 Re-validating cheque:- The first paragraph of S.87 makes it clear that, the party who consents to the alteration as well as the party who made the alteration are disentitled to complain against such alteration, e.g., if the drawer of the cheque himself altered the cheque for validating or re-validating the same instrument, he cannot take advantage of it later by saying that the cheque became void as there is material alteration thereto. Further, even if the payee or the holder of the cheque made the alteration with the consent of the drawer thereof, such alteration also cannot be used as a ground to resist the right of the payee or the holder thereof. It is always a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer. It requires evidence to prove the aforesaid question whenever it is disputed. It was so held in a decision reported in AIR 2002 S.C 38, in a case between Veera Exports V/s.
T.Kalavathy.
41. On going through the above decision and provision under Section 87 of Negotiable Instruments Act, it made clear that, if the drawer of the cheque himself altered the same, for validity or re- validity, he cannot take advantage of it, later by saying that, Judgment 37 C.C.No.9805/2015 cheque became void, as there is material alteration if alteration. In the case, if the complainant has deposed the accused by noticing such alteration affixed his signature below the same, then, the accused has no other go then to admit. If at all, the correction with regard to date it can presume that, the accused by himself affixing his signature revalidating the cheque. But in the cheque itself there is serious lack with regard to amount made mentioned in words is not tallied with numeral. Therefore, in order to show that, the cheque was duly executed and issued by the accused in respect of the liability of Rs.4,60,000/-, the complainant needs to prove, but he failed to demonstrate the same, for the reasons better known to him. On going through Ex.P1 cheque rather it creates confidence with regard to liability of accused it creates doubt as to its genuineness in execution and issuance of the same.
42. From the point of Section 87 of Negotiable Instruments Act, it prima-facie appears this court that, whatever the alteration and discrepancy made mentioned in the amount in words as well as numeral, it renders the same void as against the accused since at the time of making such alteration, the accused does not consent thereto. Unless, it was made in order to carry out the common intention of the drawer of the cheque, the said material alteration Judgment 38 C.C.No.9805/2015 is not support the claim of complainant and it is creates doubt, as to the very genuine claim put forth by the complainant from the point of strong probable defence taken by the accused. The material alteration in the cheque is also one of the strong circumstances to draw the inference that, singed signed blank cheque secured by the complainant as security, leads for misuse. Hence, the said material alteration goes against the interest of the accused, the complainant cannot take the benefit of same.
43. On going through the evidence of PW.1, he contended in chief that, after lapse of 2 years the accused not repay the amount, when he requested to him for repayment, then again sought six months time. Thereafter, after lapse of six months, when the complainant asked the accused during the 1st week of September, 2014, the accused gave the questioned cheque dated:3.11.2014 and in that regard, he and his wife on 02.10.2014 got executed the letter at Ex.P10. The PW.1 in his cross- examination has deposed that:
"gÁdtÚ ªÀÄvÀÄÛ PÀȵÉÚÃUËqÀ £À£Àß ¸ÉûßvÀgÀÄ. CªÀgÀ£ÀÄß F ¥ÀæPÀgÀtzÀ°è «ZÁgÀuÉ ¥Àr¸À®Ä C¨ÀsåAvÀgÀ«®è. £Á£ÀÄ ªÀÄvÀÄÛ gÁdtÚ §®ªÀAvÀªÁV, DgÉÆæ ªÀÄ£ÉUÉ ºÉÆÃV MAzÀÄ SÁ° PÁUÀzÀPÉÌ DgÉÆæ ¸À»AiÀÄ£ÀÄß ¥ÀqÉ¢zÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQë ¸ÀévÀB Judgment 39 C.C.No.9805/2015 ªÀÄÄAzÀĪÀjzÀÄ, ¤¦.10 - DgÉÆæ ºÉýPÉAiÀÄ£ÀÄß «dAiÀÄ£ÀUÀgÀ ¥ÉÇð¸ï oÁuÉAiÀÄ°è ¥ÉÇð¸ÀgÀÄ DgÉÆæ¬ÄAzÀ ¥ÀqÉ¢gÀÄvÁÛgÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. D ºÉýPÉAiÀÄ£ÀÄß ¥ÉÇð¸ï oÁuÉUÉ £Á£ÀÄ ºÉýPÉ ¤ÃqÀ®Ä ºÉÆÃzÁUÀ, DgÉÆæ¬ÄAzÀ MvÁÛAiÀĪÁV §gɬĹPÉÆArzÁÝgÉ JAzÀgÉ ¸ÀjAiÀÄ®è."
44. On going through the testimony of PW.1, he categorically admitted B.K.Rajanna and Krishnegowda are his friends and he had no impediment to examine them in the present case. There was serious allegation made against the complainant and one of the witness B.K.Rajanna that, forcefully then went to the house of accused and took signature on the blank white paper, but the PW.1 has denied the same and volunteers that, Ex.P10 statement of the accused taken by the Vijayanagar Police Station from the accused. But it was suggested to him that, when accused went to the Police Station forcibly the same were taken is denied by the PW.1. As per say of PW.1, though he referred Ex.P10 accused statement taken by the police, the Ex.P10 is not the statement of the accused, but it is the alleged letter written by the accused to the complainant along with his wife and son by mentioning the witness name B.K.Rajanna. Therefore, it made clear that, from the evidence of PW.1 that, the Ex.P10 was taken by the police in Judgment 40 C.C.No.9805/2015 the Police Station not voluntarily executed by the accused in favour of complainant.
45. On going through the Ex.P10 as said by the PW.1, it was taken in the Police Station. On going through the Ex.P10 it discloses, the date:02.10.2014. On going through the Ex.P12 complaint lodged by the accused discloses the date:23.07.2015. Under such circumstances, what was the compelling circumstance made to the accused much prior to filing of complaint at Ex.P12, why on 02.10.2014 he went to the Police Station and gave the Ex.P10 statement is also creates doubt. Therefore, it discloses, as urged by the PW.1, if at all, the Ex.P10 statement were given by the accused, it was at the instance of complainant and it is him to explain, under what compelling circumstances in order to obtain Ex.P10 statement or letter, why the complainant approached the Police Station is also not been satisfactorily explained.
46. From the evidence of PW.1 it discloses, the Ex.P10 was executed in the Police Station, therefore, on account of strong apprehension made by the accused as found in Ex.P12 complaint, the said Ex.P10 came in to existence under the compelling circumstances and same were not executed by the accused, his Judgment 41 C.C.No.9805/2015 wife and son. If at all, the accused borrowed the loan and he gave the cheque, what was the necessity to brought the wife and son of the accused as witnesses to Ex.P10, also one of the strong doubtful circumstances arise, in order to pressurized them, the Ex.P1 was taken by the complainant by using coercive method in order to swindle money, the very act of the complainant has to be condemned.
47. The PW.1 though deposed as such, Ex.P10 was given by the accused in he Police Station, his own witness, who affixed his signature as one of the witness by name B.K.Rajanna, examined as PW.2. Who in the cross-examination has deposed that:
"¤¦.10 £ÀÄß PÀÆqÀ DgÉÆæ ¢£ÁAPÀ 03.11.2014 gÀAzÀÄ §gÉzÀÄPÉÆlÄÖ, ¢£ÁAPÀ 06.11.2014 gÀAzÀÄ ZÉPÀÌ£ÀÄß ¨ÁåAQUÉ ºÁQ PÉƼÀî®Ä w½¹zÀÝgÀÄ. DgÉÆæ ¤¦.10 £ÀÄß §gÉzÀÄPÉÆnÖ®è, £Á£ÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è."
48. On going through the said testimony of PW.2, he goes against the Ex.P10 and deposed that, the accused on 03.11.2014 got executed the Ex.P10 and informed the complainant to present the said cheque on 06.11.2014, but the said testimony of PW.2 was denied by the accused by way of suggestion. If at all, as per say of PW.2, Ex.P10 was executed on 03.11.2014, why Ex.P10 is Judgment 42 C.C.No.9805/2015 dated:02.10.2014 is not been satisfactorily convinced this court. As per say of PW.2, if any letter, got executed by the accused on 03.11.2014, what happened to it, why the complainant has withheld the same is also not been explained and thereby, the very evidence of PW.1 and 2 contradicts from execution of Ex.P10 by the accused as to got issuance of questioned cheque at Ex.P1. The evidence of PW.1 and 2 goes against the Ex.P10 and contradicts which presumption-suppose the probable defence of the accused. Thereby, the accused also proved that, he not issued questioned cheque as per the contention taken by the complainant.
49. That apart, in the cross-examination of PW.1, he categorically admitted that:
"DgÉÆæ £À¤ßAzÀ ¥ÀqÉzÀ ¸Á®zÀ ªÀÄgÀÄ ¥ÁªÀw ¨ÀszÀævÉUÁV ¤¦.1 ZÉPï ªÀÄvÀÄÛ ¤¦.9 PÀgÁgÀÄ ¥ÀvÀæ §gÉzÀÄPÉÆnÖzÁÝgÉ JAzÀgÉ ¸Àj."
50. The PW.1 during the course of cross-examination categorically admitted that, in respect of repayment of loan amount, he took Ex.P1 cheque and agreement at Ex.P9 as a security. Therefore, the said clear cut admission made by the PW.1, it discloses, whatever the security document given by the accused, which is prior to passing of loan amount from the hands Judgment 43 C.C.No.9805/2015 of the complainant to accused. By admitted so, the complainant has contradicts his own pleading that, the questioned cheque is not issued by the accused after lapse of 2 ½ years i.e., during the 1st week of September, 2014, by mentioning the date:03.11.2014 itself creates doubt. When the evidence of PW.1 itself is contradicts his own pleading and documents, on which basis the PW.2 came into witness box and deposed, he affixed his signature to Ex.P10 by affixing his signature stating, the accused, his wife and son the same. The PW.2 has not stated about the son of accused was signed to Ex.P10. The PW.2 is not an eye witness to the incident the questioned cheque was alleged to be issued by the accused to the complainant during the 1st week of September, 2014. Under such circumstances, how he deposed, on the Ex.P9 and P10 itself creates doubt. When evidence of PW.1 itself creates doubt, as to the execution of Ex.P9 loan agreement and Ex.P10 letter by the accused, his wife and son, appreciating the evidence of PW.2 again does not required. The evidence of PW.1 itself creates shaky in believing the very contention. During the course of cross of PW.1, it was suggestion made to PW.1, as to the creating of Exs.P9 and P10. But the PW.1 has deposed that:
Judgment 44 C.C.No.9805/2015
"¤¦.9 ¸Á®zÀ PÀgÁgÀ£ÀÄß DgÉÆæAiÉÄà ¨ÉgÀ¼ÀZÀÄÑ ªÀiÁr¹
vÀA¢zÀÝgÀÄ. E-bÁ¥Á PÁUÀzÀ DgÉÆæAiÉÄà Rjâ¹zÀÝgÀÄ. D PÀgÁgÀÄ DUÀĪÁUÀ £Á£ÀÄ, DgÉÆæ ºÁUÀÆ ¸ÁQëUÀ¼ÁzÀ gÁdtÚ ªÀÄvÀÄÛ PÀȵÀÉÚÃUËqÀ EzÀÝgÀÄ. CªÀj§âgÀ£ÀÄß «ZÁgÀuÉUÉ M¼À¥Àr¸À®Ä vÉÆAzÀgÉ E®è. ¸ÁQë PÀȵÀÉÚÃUËqÀ zÀÆgÀzÀ°èzÁÝgÉ, §AzÀ°è ¸ÁQë £ÀÄr¸ÀÄvÉÛãÉ."
51. As per say of PW.1, the Ex.P9 alleged loan agreement got typed by accused himself by purchasing the e-stamp paper. He deposed that, while entering into said agreement, B.K.Rajanna and Krishnegowda were also present and Krishnegowda resides far away, if comes will examine. But the said Krishnegowda is not examined in support of the contention as to due execution and issuance of Ex.P9. Though, PW.2 is examined his affidavit evidence is stated, he was present at the time of alleged lent of loan and he affixed signature to Ex.P9. During the course of cross of PW.2, he deposed that:
"DgÉÆæ ¦AiÀiÁð¢¬ÄAzÀ gÀÆ.4,60,000/- ¸Á® ¥ÀqÉzÁUÀ ¨ÀszÀævÉUÁV £À£Àß ªÀÄÄAzÉAiÉÄà §gÉzÀÄPÉÆlÖAvÀºÀ ZÉPï DVgÀÄvÀÛzÉ. ¸ÁQëAiÀÄÄ ¸ÀévÀB ªÀÄÄAzÀĪÀgÉzÀÄ DgÉÆæ AiÀiÁgÀ §½ §gɬĹzÀÝgÀÄ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. DgÉÆæ MAzÀÄ ZÉPï, ¤¦.9 ªÀÄvÀÄÛ 10 gÀ zÁR¯ÉAiÀÄ£ÀÄß D ¢£À PÉÆnÖzÀÝgÀÄ."
Judgment 45 C.C.No.9805/2015
52. The PW.2 has contrary to his own affidavit evidence and case against the complainant, his own document has clearly admitted that, when accused was received Rs.4,60,000/- from the complainant, got executed the Ex.P1 cheque as security to the complainant. From which, it made clear that, the questioned cheque was not issued by the accused during 1st week of September, 2014 as contended by the complainant and the very evidence of PW.2 contradicts the case of complainant, which clearly manifest questioned cheque was taken by the complainant as security, therefore, the said material alteration were found in the same as to date and amount. The PW.1 has deposed that, he does not know filled the said cheque.
53. That apart, he also deposed, the accused on the very same day got issued Ex.P1 cheque, document at Exs.P9 and P10. By deposing so, he totally contradicts the very case put forth by the complainant. From which, it made clear that, as per the say of complainant, PW.2 was on the witness. Therefore, his version if taken into consideration, Ex.P1, P9 and P10 were given by the accused on the date of alleged borrowal of loan as security. Hence, it made clear that, as alleged by the complainant those documents were not issued by the accused on the date made mentioned at Exs.P1, P9 and P10. The PW.2 has deposed that, Judgment 46 C.C.No.9805/2015 accused also asked the loan to him, since he had no money, he himself introduced the complainant, but the same aspect lacks in the evidence of PW.2. As discussed above, the complainant has utterly failed to prove the reverse burden casted by the accused by virtue of Section 139 of Negotiable Instruments Act. The accused has successfully proved his probable defence by way of cross-examining the PW.1 and 2 coupled with he entered into witness box and withstood his contention that, questioned cheque at Ex.P1 together with other blank cheques, singed e-stamp paper and singed white paper were given to the complainant at the time of borrowing loan of Rs.4,60,000/-. The accused has contended in Ex.P12, he already paid Rs.7 lakhs as huge interest against the said loan amount. The complainant has admitted, on interest only he paid the loan. Under such circumstances, on which guarantee the complainant had lent loan needs to draw the inference that, by obtaining signed blank cheques and singed e- stamp paper and blank paper, he gave loan, despite, he got received huge interest from the accused, by misusing the signed blank cheque at Ex.P1 with material alterations projected the present case against the interest of complainant. The very act of the complainant has to be deprecated.
Judgment 47 C.C.No.9805/2015
54. The questioned cheque issued by the accused to the complainant is only as security and not for discharge of any existing debt. After obtaining the said security documents, the complainant has admitted, he lent it for interest at 18% p.a., but despite, got received, without brought the true picture of the transaction has brought the present case. Therefore, it made clear that, the questioned cheque was not issued by the accused for discharge of any existence of debt, but complainant by made material alteration at Ex.P1 projected the present case by the complainant, the accused got issued and executed the Ex.P1 cheque for discharge of existence of legally recoverable debt. So far as, the presumption has to issuance of cheque for consideration and discharge of debt, the accused need not disprove the case of complainant in its entirety. The accused got discharged his burden on the basis of preponderance of probabilities through direct or circumstances evidence. As discussed above the accused has proved that, questioned cheque was issued by him to the complainant as security not for discharge of any liability. By doing so, the accused has rebutted the case of the complainant and statutory presumptions. Thereby, created the reverse burden on the complainant to prove his case beyond the reasonable doubt.
Judgment 48 C.C.No.9805/2015 In a decision reported in 2001 Supreme Court 2895 ( K.N.Beena V/s. Muniyappan and another). Wherein, the division bench of the Hon'ble Apex Court was pleased to observed that:
"The accused had to prove in trial by leading cogent evidence, that there was no debt or liability. The accused not having led any evidence could not be said to have discharged the burden cast on him. The accused not having discharged the burden of proving that, the cheque was not issued for a debt or liability".
55. As per the said dictum, it also made clear that, the accused had proved in the trial by leading cogent evidence, there was no debt or liability. Thereby, it was reverse burden casted on the complainant to prove his case beyond the reasonable doubt.
In a decision reported in 2013 (1) DCR 326 (Nandi Agro Fertilizers V/s. D.Satish S/o. D.Jayanna). Wherein, it was pleased to held that:
"From the principles laid down in the decisions referred to supra, it is relevant to note that through a notice has not been replied by the respondent, though it could be a circumstance in favour of the appellant, but at the same time despite this circumstance in favour of the appellant, the doubt which arise stands unexplained. Further more the Apex Court in the decisions referred to supra has held that the respondent has to raise a probable defence and if there are circumstances to prove the probable Judgment 49 C.C.No.9805/2015 defence that itself is sufficient to dismiss the complaint. The scrutiny of the decisions and the principles laid down are not applicable to the fact of this case and the probable defence that has been put forth by the respondent creates serious doubt with regard to the genuineness of the appellant. In such circumstances, I am of the opinion that the appellant has not made any grounds warrant interference in the order of acquittal".
56. No doubt, in this case legal notice was served on the accused at Ex.P4 and accused not caused any reply. From the point of the above dictum, it also made clear that, non-reply the legal notice could not a circumstance made in favour of complainant. But at the same time, the accused has made out strong doubtful circumstances against the case of complainant and which raised doubts, as to due execution and issuance of cheque for discharge of legally recoverable debt is stands unexplained by the complainant.
57. In order to prove the case of complainant, it is the complainant had to pre-requisites as contended in the decision reported SCC 2014 (2) 236 between John K.Abraham Vs. Simon C. Abraham and another, it is held that:
"Debt, Financial and Monetary Laws -
Negotiable Instruments Act, 1881 - Ss. 118, 139 and 138 - Dishonour of cheque - Drawing Judgment 50 C.C.No.9805/2015 presumption under S. 118 r/w S.139 - Prerequisites for, when cheque is for repayment of a loan/advanced money - Proof required on the part of complainant - Held, in order to draw presumption under S.118 r/w S.139, burden lies on complainant to show: (i) that he had the requisite funds for advancing the sum of money/loan in question to accused, (ii) that the issuance of cheque by accused in support of repayment of money advanced was true, and (iii) that the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant - In present case, complainant not aware of the date when substantial amount of Rs.1,50,000/- was advanced by him to appellant-accused -
Respondent complainant failed to produce relevant documents in support of the alleged source for advancing money to accused - Complainant also not aware as to when and where the transaction took place for which the cheque in question was issued to him by accused - Complainant also not sure as to who wrote the cheque and making contradictory statements in this regard - In view of said serious defects/lacunae in evidence of complainant, judgment of High Court reversing acquittal of accused by trial court, held, was perverse and could not be sustained."
"Complainant also not aware as to when and where the transaction took place for which the Judgment 51 C.C.No.9805/2015 cheque in question was issued to him by accused - Complainant also not sure as to who wrote the cheque and making contradictory statements in this regard - In view of said serious defects/lacunae in evidence of complainant, judgment of High Court reversing acquittal of accused by trial court, held, was perverse and could not be sustained".
58. On going through the said dictum, it is the reverse burden on the complainant as to furnish proof with regard to draw the presumption under Sections 118 and 139 of Negotiable Instruments Act. The complainant has made mentioned in the said dictum, though he able to prove that, he had advance loan of Rs.4,60,000/- to the accused as admitted by the accused as admitted by the accused, but he utterly failed to prove that, the questioned cheque was issued by the accused in support of repayment of money advanced to the accused as well as the accused was bound to make payment as agreed while issuing the cheque in favour of complainant. The complainant has utterly failed to prove by furnishing oral as well as oral and documentary evidence that, the questioned cheque was issued by the accused for discharge of any legal liability, but the evidence of PW.1 and 2 is pre-supposes the probable defence taken by the accused that, while take loan, the complainant took signed blank cheque at Ex.P1 and other documents and despite, as found in Ex.P12, he Judgment 52 C.C.No.9805/2015 got paid the interest of Rs.7 lakhs in 28 months with exorbitant rate of interest, filed the present case has to be accepted.
It is relevant to cite the decision reported in IV (2009) BC 147 (H.R.Nagarathna V/s. Jayashree Prasad). The Hon'ble High Court of Karnataka observed that:
"(i) Negotiable Instruments Act, 1181 - Sections 138, 139 - Dishonour of Cheque - Legally enforceable debt - Presumption - No offence under Section 138 of Act made out against accused - Existence of legally enforceable debt not proved beyond reasonable doubt -
No reason to interfere with impugned judgment and order of acquittal.
(ii) Criminal Trail - Proof of case beyond reasonable doubt - Accused in criminal case need not prove his defence beyond reasonable doubt, but complainant has to prove his case beyond reasonable doubt".
59. On going through the probable direct circumstantial evidence placed by the accused by relying upon the documents of the complainant coupled with their cross-examination and created reverse burden by virtue of Section 139 of Negotiable Instruments Act. Therefore, as per the dictum cited supra, it is the burden casted on the complainant to prove his case beyond the reasonable doubt. The accused need not prove his defence beyond the reasonable doubt, but it is the complainant has to Judgment 53 C.C.No.9805/2015 prove his case beyond the reasonable doubt, to prove the guilt of the accused.
It is relevant to cite the decision reported in 2012 (1) DCR 385, (Santhi V/s. Mary Sherly). The Hon'ble Kerala High Court pleased to held that:
"Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Admission of signature - Legally - Held - Admission of signature in a cheque leaf alone will not constitute admission of execution of cheque".
"Execution of cheque - Proof of - Held -
Mere production of cheque on making the same as an exhibit in case will not prove that the cheque is drawn by accused."
"Execution of cheque - Proof of - Held -
Mere fact that cheque produced in court came from complainant's possession, alone not sufficient to prove execution though it may be one of the circumstances".
60. On going through the said dictum, it also made clear that, the admission of signature in a cheque leaf alone will not constitute admission of execution of cheque. It also made clear that, mere production of cheque on making the same as exhibit in a case will not prove that, cheque is drawn by the accused. The production of cheque by the custody of the complainant alone not Judgment 54 C.C.No.9805/2015 sufficient to prove the execution though it may be one of the circumstances. The accused has set out and demonstrate the reason that, in respect of borrowal of loan the questioned cheque was taken by the complainant along with other documents with signature only. Therefore, it is due execution and issuance is not proved, despite the accused created reverse burden on the complainant, he failed to demonstrate the same.
Added to that, the decision reported in 2008 (3) KCCR 1569 (K.Narayana Nayak V/s. M.Shivarama Shetty). The Hon'ble High Court of Karnataka pleased to held that:
A. Negotiable Instruments Act, 1881 - Sections 138 and 142 - Issuance of cheque - Dishonour - The courts to draw presumption towards the liability of the drawer.
B. Negotiable Instruments Act, 1881 - Section 138 - Enforceable legal liability; a must.
C. Negotiable Instruments Act, 1881 - Section 138 - Service of Notice - A must.
D. Negotiable Instruments Act, 1881 - Section 138 - cheque given as a collateral security - Accused placing material to substantiate the plea - Burden on the complainant to prove that the cheque was issued towards the amount and not as a collateral security - Complainant not proving it - Plea of the accused shall be accepted".
Judgment 55 C.C.No.9805/2015
61. On going through the said dictum, it also made clear that, the burden is on the complainant to prove that, cheque was issued by the accused towards the amount not as collateral security. In the case on hand, the accused repeatedly taken up the defence that, the complainant took signed blank cheques with other documents and lent loan for exorbitant rate of interest, accordingly collected and not returned the said documents, but by projected the present case has contended that, the accused for payment of sum of Rs.4,60,000/- got issued the questioned cheque. In the evidence of PW.1, he categorically admitted the questioned cheque was taken by him, at the time of alleged lent of loan as security coupled with documents, hence, in respect of the document secured as collateral security, it cannot be used by contending the questioned cheque was issued by the accused for discharge of legally recoverable debt.
That apart, accused has relied upon the decision reported in ILR 2008 KAR 3635 in a case between K.Narayana Nayak V/s. Sri.M.Shivarama Shetty. Wherein the Hon'ble High Court of Karnataka pleased to observe that:
"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 Judgment 56 C.C.No.9805/2015 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."
62. On going through the said dictum, the same is aptly applicable to the present case.
In another decision reported in 2000 DCR 199 in a case between Sreenivasan V/s. State of Kerala. Wherein the Hon'ble High Court of Keral pleased to observed that:
"The cheque issued as security only - The cheque ought to have been issued for the sole purpose of discharge of any previous debt of liability - The complaint not maintainable - Proceedings quashed."
63. On going through the said dictum coupled with the defence evidence placed by the accused by made use of the documents of the complainant coupled with the cross-examination of PW.1 and Judgment 57 C.C.No.9805/2015 PW.2 and clearly establishes that, the cheque was not issued towards the discharge of any legally enforceable debt, but signed blank cheque was issued as security and for the reasons better known to the complainant by conceding the averments and allegations made by the accused as found in Ex.P12 complaint lodged by him before the various authorities brought the present case. Though it was reverse burden casted on the complainant to establish his case beyond the reasonable doubt, in order to prove the guilt of the accused, he utterly failed to do so. Therefore, the accused has successfully in proving his probable defence, as to misuse of questioned cheque by the complainant, for the discussion made mentioned supra.
64. 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 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, Judgment 58 C.C.No.9805/2015 accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
65. 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. 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 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.
66. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 59 C.C.No.9805/2015 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 30th day of July - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Lakshman PW.2 : B.K.Rajanna
List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque
Ex.P1(a) : Signature of accused
Exs.P2 & P3 : Bank endorsements
Ex.P4 : Office copy of legal notice
Exs.P5 & P6 : Postal receipts
Ex.P7 : Complaint dtd:03.02.2015
Ex.P8 : Settled reply
Ex.P9 : Loan agreement
Ex.P9(a) to P9(c) : Signatures of complainant, accused & PW.2
Ex.P10 : Letter dtd:2.10.2014
Ex.P10(a) to P10(c) : Signatures of accused, PW.2 &
K.Geethalakshmi
Ex.P11 : True copy of letter dtd:28.07.2015
Judgment 60 C.C.No.9805/2015
Ex.P12 : True copy of Representation/complaint
Ex.P12(a) to (c) : Signatures of accused, his wife and son
Ex.P13 : True copy of Statement
Ex.P14 : Private complaint
Ex.P14(a) : Signature of complainant
List of Witnesses examined on behalf of the defence:
DW.1 : B.T.Narayanaswamy List of Exhibits marked on behalf of defence:
Ex.D1 : Letter dtd:30.07.2015
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 61 C.C.No.9805/2015
30.07.2020.
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 Judgment 62 C.C.No.9805/2015 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.