L.Anjan Kumar vs N.Rajanna on 30 July, 2020

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Bangalore District Court

L.Anjan Kumar vs N.Rajanna 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.4254/2016

        JUDGMENT UNDER SECTION 355 OF Cr.P.C.

    Complainant      :      L.Anjan Kumar,
                            S/o.Lingappa,
                            Aged about 48 years,
                            R/at No.516, Muddanna Road,
                            Panthara Palya, Nayandahalli Post,
                            Mysore Road, Bengaluru-39.
                            (Rep. by Sri.C.K.Jagadish Prasad, Adv.)
                     V/s
    Accused          :      N.Rajanna,
                            S/o.N.Nanjundappa,
                            Aged about 50 years,
                            R/at No.190, Kottigepalya,
                            Magadi Main Road,
                            Viswaneedam Post,
                            Bengaluru-79.
                            (Rep.by Sri.Sridhara.N, 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.4254/2016



                         JUDGMENT

The complainant has presented the instant complaint against the accused on 29.12.2015 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheques of Rs.12,50,000/-, in all Rs.37,50,000/-.

2. The facts raised by the complainant in the present case is as follows:

The complainant has contended that, he and accused are childhood friends. The accused approached the complainant stating that, he is in financial difficulty and asked to arrange sum of Rs.50 lakhs as hand loan. When complainant expressed his inability to arrange such big amount, he told him that, he knew some financiers viz., Ramesh, Malathi Bai W/o Vittal Rao, Puttaswami and Narasimhamurthy and asked the complainant to give his property documents as security, so that, he came availed loan from the above said financiers. At the request of accused, the complainant offered to give the papers for security, in view of childhood friendship between them and accused promised the complainant that, he was having some property bearing Sy.No.123/2, measuring 2 acres situated at Tavarekere Village Judgment 3 C.C.No.4254/2016 and Hobli, Bengaluru South Taluk and kept it for sale and he also told the complainant that, he is not getting immediate purchasers to clear the loan amount.

The complainant has further contended that, accused had taken the complainant to the said Malathi Bai, Ramesh, Puttaswami and Narasimhamurthy and availed sum of Rs.10 lakhs each from Ramesh, Puttaswamy and Narasimhamurty and also availed sum of Rs.20 lakhs from Malathi Bai. The accused had agreed to repay the loan amount within 6 months from the date of receipt of said amount and at the time of availed the loan, the above said persons got received the property documents of the complainant and took him to sub-registrar office saying that, loan agreement has to be registered and accused agreed to clear the loan amount within six months and get release the documents.

The complainant has further alleged that, then oftenly he went to the accused and requested for the property documents, then he promised that, he would clear the loan amount as soon as his property as soon as his property situated at Tavarekere got sold and get the documents to the complainant. But he failed to keep up his promise.

Judgment 4 C.C.No.4254/2016 The complainant has further contended that, he got shock and surprise, when he got received summons from City Civil Court, Bengaluru as well as Nelamangala, then he came to knew that, the above said financiers colluded with each other and registered the sale agreement against the property of the complainant instead of loan agreement and when accused failed to repay the loan amount, they have filed suits against the complainant for specific performance. Wherein, the complainant had filed written statement in the said suits and same are pending. Immediately, after receipt of summons from the courts, the complainant had approached the accused and requested to clear the loan amount and get his documents released, then also the accused promised to clear the loan amount, but has not repaid the same.

The complainant has further alleged that, there were no transaction between complainant and the above financiers and it was only between the accused and them, only for security purpose, he gave the documents by way of mortgage with the said financiers by believing the words of accused. The accused played fraud on the complainant and trapped him forever and accused was witness to the sale agreement.

Judgment 5 C.C.No.4254/2016 The complainant has further alleged that, the accused also knew that, the said financiers convened several panchayaths and the accused agreed that, he will repay the amount of Rs.50 lakhs with 3.50% interest; hence, the complainant could not take any action against the accused. On 01.08.2014, the complainant lodged complainant to the Kamakshipalya Police Station and police called the accused and other financiers, wherein accused agreed to clear the loan amount on 22.08.2014, in that regard, he gave statement before the police admitting all the transactions between him and other financiers and also he agreed to clear the loan amount. But he did not clear the loan amount and totally cheated the complainant and the financiers and he is a habitual defaulter and cheater.

The complainant has further contended that, the accused and his family members already executed an registered sale agreement dated:28.05.2014 in favour of one D.Ananda Swamy in respect of his property bearing No.125/2 stated above for sum of Rs.2,50,00,000/- and got received advance amount of Rs.1,64,00,000/- and the said fact was not disclosed by him either before panchayathdars or before the police. Immediately, the complainant had applied for certified copy of sale agreement and obtained the same and approached the accused got clear the Judgment 6 C.C.No.4254/2016 loan amount. Hence, on 10.07.2015, the accused had issued 4 post cheques bearing No.384538 dated:15.07.2015, cheque No.384539 dated:30.07.2015, cheque No.384540 dated:25.08.2015 and another cheque bearing No.384541 dated:15.09.2015 for sum of Rs.12,50,000/- each respectively, drawn on the then State Bank of Mysore, Nagarabhavi 2nd Stage, Branch, Bengaluru and assured to honour the cheques on the date of their presentation.

The complainant has further alleged that, when he called the accused for presentation of the cheque dated:15.07.2015, he approached the complainant and gave cheque amount of Rs.12,50,000/- and received back the said cheque bearing No.384538 dated:15.07.2015 and promised the complainant that, he would clear the cheque amount as on the date mentioned in the same. When the complainant called him on the due date of the cheques, he sought time up to October, 2015 and asked the complainant present remaining 3 cheques on 14.10.2015 by assuring will manage sufficient funds in his account.

The complainant has further contended that, as per instruction of the accused, when complainant got presented the above detailed 3 cheques for encashment through his banker viz., Judgment 7 C.C.No.4254/2016 Canara Bank, Rajarajeshwarinagar Branch, Bengaluru. He got utter shock and surprise to see the memo dated:15.10.2015, as those cheques were came to be dishonored for the reasons "Funds Insufficient". The accused without keep sufficient funds in his account with an intention to cheat and defraud the complainant got issued those cheques. Thereby, accused committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, on 13.11.2015 by way of R.P.A.D., he got issued legal notice through his counsel, calling upon him to pay the amount of Rs.37,50,000/- to the complainant within 15 days and the said notice was returned with a shara "No Such Person" in the address and intimation delivered on 16.11.2015. The accused though resides in the said address, he managed the postal authorities and evaded 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 recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.

Judgment 8 C.C.No.4254/2016

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 P21. The PW.1 was subjected for cross-examination by the advocate for the accused. In the cross-examination of PW.1, accused counsel got confronted one document and same is marked as Ex.D1.

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.D2 to D4 and also subjected for cross- examination by the advocate for the complainant.

7. I have heard the arguments of both side counsels.

8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:

Judgment 9 C.C.No.4254/2016

1) Whether the complainant proves beyond the reasonable doubt that, the amount covered under the Exs.P1 to P3 - cheques are the existence of legally enforceable debt payable by the accused?

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 childhood friends is not in dispute. The fact that, the cause title addresses of the complainant and accused made mentioned in the complaint is not in dispute. The fact that, the complainant and his wife had possessed some of the properties, which are subject matter of the proceedings involved in the documents at Exs.P13, P15, P17 to P19 is not in dispute. The fact that, the accused was the owner of the property bearing Sy.No.123/2 measuring 2 acres situated at Tavarekere Village and Hobli is not in dispute.

Judgment 10 C.C.No.4254/2016 The fact that, questioned cheques at Exs.P1 to P3 as well as signatures found therein belongs to the accused is not in dispute. The fact that, as per bank memos at Exs.P4 to P6, the questioned cheques were dishonoured for Funds Insufficient is not in dispute. As per clear cut admission made by the accused during his cross-examination by admitting that:

"£Á£ÀÄ zÀÆj£À ²Ã¶ðPÉAiÀÄ «¼Á¸ÀzÀ¯ÉèÃ ªÁ¸À«zÉÝÃ£É JAzÀgÉ ¸Àj. D «¼Á¸ÀPÉÌ AiÀiÁªÀÅzÉÃ ¥ÀvÀæ ªÀåªÀºÁgÀ ªÀiÁrzÀ°è £À£ÀUÉ vÀ®Ä¥ÀÅvÀÛzÉ JAzÀgÉ ¸Àj. ¤¦.9 gÀ «¼Á¸ÀªÀ£ÀÄß ¸ÁQëAiÀÄÄ N¢, CzÀgÀ°è £À£Àß «¼Á¸À EzÉ JA§ÄzÁV M¦àPÉÆ¼ÀÄîvÁÛgÉ."

By admitting so, the accused got admitted his cause title address as well as the legal notice at Ex.P9 were of his address. The fact that, the complainant on 01.08.2014 by way of lodged complaint as per Ex.P10 approached the Kamakshipalya Police Station against the accused with certain set up allegations is not in dispute. The fact that, in pursuance of the said complaint at Ex.P10, the said jurisdictional Kamakshipalya Police gave acknowledgment at Ex.P11 is not in dispute. The fact that, in pursuance of complaint lodged by the complainant as per Ex.P10, the accused was called and he gave statement as per Ex.P12 before the police is not in dispute.

Judgment 11 C.C.No.4254/2016 The fact that, as per Ex.P13 one B.R.Ramesh got instituted a suit for specific performance in O.S.No.7436/2014 against the complainant herein and secured judgment and decree for specific performance of registered sale agreement dated:29.04.2011 and as per Ex.P14 got obtained the decree is not in dispute. Accordingly, Smt.L.Malathi Bai got filed suit for specific performance against the complainant in O.S.No.9220/2014 based on the registered sale agreement dated:30.11.2011 is not in dispute. The fact that, as per Ex.P17 certified copy of registered sale agreement dated:30.11.2011, the purchaser Smt.L.Malathi Bai got entered into said agreement with complainant and though there is mentioning of receipt of part of sale consideration of Rs.26 lakhs, in the oral evidence or PW.1, he got admitted the receipt ofRs.20 lakhs from her is not in dispute.

The fact that, as per Ex.P18 order sheet and plaint at Ex.P19 one Puttaswamy against the wife of complainant by name B.T.Nirmala based on the sale agreement dated:07.01.2012 got filed the suit for specific performance in O.S.No.493/2013 is not in dispute. The fact that, one Chandramma had filed suit for Specific Performance against the complainant herein in O.S.No.10520/2015 as per Ex.P20 is not in dispute. The fact that, as per Ex.P21 the plaint filed by Chandramma and written Judgment 12 C.C.No.4254/2016 statement of the complainant herein, the matter is pending before the competent courts is not in dispute.

The fact that, the Ex.D1 signed blank cheque pertaining to he account of the complainant held at Canara Bank, Byatarayanapura Branch, and the signature found therein belongs to complainant is not in dispute. The fact that, the Ex.D2 acknowledgment of registration of firms stands in the name of accused pertaining to Sri.Annapurneshwari Industries registered on 29.06.2011 is not in dispute. The fact that, the signature found in Ex.D3 the alleged partnership deed dated:20.06.2011 is of the complainant and accused is not in dispute, subject to prove its due execution. The fact that, the Ex.D4 notarized copy of Aadhaar Card pertaining to the accused is not in dispute.

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 herself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P21, they are:

a) Exs.P1 to P3 are the cheques bearing Nos.384539 dated:30.07.2015, cheque bearing No.384540 dated:25.08.2015 and another cheque bearing Judgment 13 C.C.No.4254/2016 No.384541 dated:15.09.2015 issued by the accused for sum of Rs.12,50,000/- each, drawn on the then State Bank of Mysore, Nagarabhavi II Stage Branch, Vijayanagar, Bengaluru.

b) Exs.P1(a) to P3(a) are the alleged signatures of accused.

c) Exs.P4 to P6 are the Bank Memos dated:15.10.2015.

d) Ex.P7 is the Legal Notice dated:13.11.2015.

e) Ex.P8 is the Postal receipts.

f) Ex.P9 is the unserved R.P.A.D cover.

g) Ex.P10 is the certified copy of complaint dated:

01.08.2014 lodged by complainant herein against accused before the Kamakshipalya Police Station.

h) Ex.P11 is the certified copy acknowledgment dated:22.08.2014 issued by Kamakshipalya Police Station to complainant herein.

i) Ex.P12 is the certified copy statement dated:22.08.2014 given by accused before the Kamakshipalya Police Station.

j) Ex.P13 is the certified copy of Judgment in O.S.No.7436/2014 on the file of Hon'ble CCH-14, Bengaluru filed by one B.R.Ramesh against complainant herein.

k) Ex.P14 is the certified copy of decree in O.S.No.7436/2014 on the file of Hon'ble CCH-14 Bengaluru.

l) Ex.P15 is the certified copy of plaint in O.S.No.9220/2014 submitted by one Smt.L.Malati Bai against complainant herein.

m) Ex.P16 is the certified copy of written statement in O.S.No.9220/2014 submitted by complainant herein.

n) Ex.P17 is the certified copy of sale agreement without possession dated:30.11.2011 executed by complainant herein in favour of Smt.Malathi Bai.

Judgment 14 C.C.No.4254/2016

o) Ex.P18 is the certified copy of order sheet in O.S.No.493/2013.

p) Ex.P19 is the certified copy of plaint in O.S.No.493/2013 submitted by one Puttaswamy against complainant herein.

q) Ex.P20 is the certified copy of order sheet in O.S.No.10520/2015.

r) Ex.P21 is the certified copies of plaint and written statement in O.S.No.10520/2015.

The PW.1 was subjected to the cross-examination by the advocate for the accused.

12. After the cross-examination of PW.1, the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein the accused has denied the incriminating evidence made against him. In order to prove the defence of the accused, he himself choosen to examined as DW.1 and filed affidavit evidence on oath. The same is not opposed by the complainant, though not sought permission under Sections 315 and 316 of Cr.P.C., since complainant has not opposed the filing of affidavit evidence, for reject the request of the accused there is no ground made out by the complainant, hence, affidavit evidence is taken on record. In the affidavit evidence of the accused, he contended that, the accused is resided along with his family members in the address made mentioned in the affidavit stating that, son of Judgment 15 C.C.No.4254/2016 M.Nanjundappa, aged about 49 years, No.190, 4th Main, Kottigepalya, Magadi Main Road, Bengaluru-91. The accused also specifically contended that, he not borrowed any money either from the complainant or from any other financiers as alleged by the complainant in the present case. He also contended that, he not borrowed any loan amount from any other persons by pledge/mortgage the property documents of the complainant as a security, as alleged in the present case. The accused also contended that, he not issued cheques at Exs.P1 to P3 for sum of Rs.37,50,000/- towards repayment of any of the amount payable to the complainant as alleged in the complaint. The complainant brought the present case with false and created with concocted contention.

The accused also contended that, the accused and complainant together had started a partnership firm by name Sri Annaporneshwari Industries by entering into partnership deed and said firm was registered on 29.06.2011 with the Registrar of Firms, Rajajinagar Branch, Bengaluru. Subsequent thereto, accused and complainant started run all types of bricks business. However in every day during the above said business it was required to make small payments to its material supplying customers. However, the complainant and accused both of them Judgment 16 C.C.No.4254/2016 being a partners of the said firm, used to leave the signed blank cheques in the office to make payments to the above said its customers for business purpose.

The accused also further contended that, though he has not borrowed any money from the complainant or from any other persons, the complainant got misused the signed blank cheques issued for the business purpose and got filed the false case against the accused for making unlawful gain. Even, prior to filing of this case also, the accused had not borrowed any money from the complainant. The complainant extracted money from the accused by illegally means by threatening him to misuse money of signed blank aforesaid cheques and other singed blank papers. Thereafter, when he refuses to pay any further money without there being any debt, the complainant illegally filed the false case with ulterior motive to make unlawful monitory gain.

The accused also contended that, on perusal of the said demand notice alleged to have issued to the accused, got marked at Exs.P7 to P9, it is crystal clear that, deliberately and knowingfully he did not write his father name and correct road therein. The said notice was not served on him and he narrated accused had not borrowed loan from the complainant or from any Judgment 17 C.C.No.4254/2016 other persons as alleged in the present case. The complainant in collusion with police got created Ex.P12 exclusively for the purpose of this case with all ill-motive to harass the accused and make unlawful gain.

13. Apart from got marked signed blank cheque of the complainant during the cross-examination of PW.1 as Ex.D1, on his admission on confrontation, the accused also choosen to produced the documents at Exs.D2 to D4. They are:

a) Ex.D1 is the original blank signed cheque bearing No.241058 pertaining to complainant herein.

b) Ex.D2 is the acknowledgment of Registration of Firms pertaining to Sri Annaporneshwari Industries issued by Registrar of Firms, Rajajinagar, Bengaluru.

c) Ex.D3 is the unregistered partnership deed dated:20.06.2011 entered into between complainant and accused herein and

d) Ex.D4 is the Notarized copy of Aadhaar Card pertaining to accused herein.

The DW.1 was subjected to the cross-examination by the advocate for the complainant.

14. On going through the rival contentions of the parties, it made clear that, based on the questioned cheques at Exs.P1 to P3, the complainant has projected that, the accused is liable to pay Rs.37,50,000/- to the complainant, hence, he got issued Judgment 18 C.C.No.4254/2016 questioned cheques, despite, got issued legal notice, after their dishonour, he avoided to receive the notice and thereby, committed the offence. Hence, the present complaint emerged.

15. Whereas, the accused has not admitted the very claim put forth by the complainant including the liability emerged out of questioned cheques at Exs.P1 to P3 by specifically contended that, he not borrowed alleged loan either from complainant or through the financiers referred by the complainant by mortgage the property of the complainant. But categorically taken up the specific defence that, the accused and complainant together doing partnership business of Sri Annapoorneshwari Industries for doing all types of bricks business, in order to pay the smaller payments to the material suppliers, both the complainant and accused used to kept signed blank cheques issue the said suppliers and complainant got misused the questioned cheques at Exs.P1 to P3 kept as such, and filed the false case. Even, legal notice is not been served on him.

16. On going through the rival contentions of the parties, it made clear that, based on questioned cheques at Exs.P1 to P3, complainant has brought the present case. Therefore, as required under Sections 118 and 139 of Negotiable Instruments Act, the Judgment 19 C.C.No.4254/2016 initial statutory presumption shall have to be drawn in favour of complainant unless and until contrary prove by the accused.

17. As per Section 118(g) of Negotiable Instruments Act, 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, as per Section 139 and 139 of Negotiable Instruments Act, it requires to draw the presumption that, cheque was drawn for discharge of liability of the drawer, its presumption under law.

18. As per the said provisions, it requires to draw the initial statutory presumption in favour of complainant that, questioned cheques were issued by the accused to the complainant for discharge of legal liability subject to prove the contrary. Therefore, it made clear that, the rider of contrary shall be proved by the accused. In that regard, it is require to cite the decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Iliyaz Khan. Wherein, it was pleased to observe 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 Judgment 20 C.C.No.4254/2016 the petitioner, the presumption goes against him as per Section 139 of Negotiable Instruments Act. Therefore, by virtue of the said dictum as well as from the point of Sections 118 and 139 of Negotiable Instruments Act, it is the accused has to prove the contrary. Mere taking plausible defence is not enough, but he has to prove his probable defence under the proof of preponderance of probabilities.

19. In this case, the accused very inception of mark his appearance before this court by way of cross-examining the PW.1 coupled with gave his statement as required under Section 313 of Cr.P.C. as well as entered into witness and by examining as DW.1 ,has denied the very case put forth by the complainant and strongly taken up his defence by contending, the complainant got misused the signed blank cheques kept in his office together with blank cheque of the complainant for making payment to the smaller payments to the supply of materials in their bricks business held in Sri Annapoorneshwari Industries. Thereby, he also not admitted the case of complainant, but set out his specific defence which attack on the claim of complainant. Not only he deposed as such, or cross-examining the PW.1, he choosen to produced the documents at Exs.D1 to D4. It also pertinent to note that, by direct or circumstantial evidence, the accused can prove Judgment 21 C.C.No.4254/2016 his probable defence is to be seen as observed in a decision reported in AIR 2010 SC 1898, in a case between Rangappa V/s. Mohan.

20. As per the said dictum, 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 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 disentitle him 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 complainant. To disprove the presumption, the accused has to bring on record Judgment 22 C.C.No.4254/2016 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.

21. In the case on hand, the accused has not taken the contention of bare denial of passing of consideration, but he taken up the probable defence by contending that, he along with complainant together doing the partnership bricks business firm in the name of Sri Annapoorneshwari Industries. In order to pay the amount to suppliers or his their customers, the complainant and accused together kept signed blank cheques in the said industry and the complainant took away signed blank cheques of the accused and filed the false case, though, he not borrowed any loan either from the complainant or any of the financiers as alleged. So also contended legal notice was not served on him, as not mentioned his father name and correct road particulars.

22. On going through the said probable defence of the accused, it requires to appreciate the evidence placed by the accused on priory, as it is initial burden on the accused. As per Section 106 of Evidence Act, it made clear that, it is the burden of proving on fact on the person specifically within knowledge. When any act is Judgment 23 C.C.No.4254/2016 specifically within the knowledge of any person, the burden of proving that fact is upon him. Accordingly, in a special enactment of Negotiable Instruments Act, the initial statutory presumption project the interest of complainant and whereas created burden on the accused to prove under the preponderance of probabilities that, those cheques were not issued for discharge of existence of any legally recoverable debt. Those presumptions covered under Sections 118 and 139 of Negotiable Instruments Act are rebuttable. When a presumption is rebuttable, it only point out that, the party on whom 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 not as presume, the parties of presumption is over.

23. In this case, the accused has not admitted the liability created by the complainant in the present case emerged from questioned cheques at Exs.P1 to P3. Therefore, it is the initial burden on the accused to prove his probable defence. Whatever the defence taken by the accused in his affidavit evidence as well as reasserted in the cross-examination could have been reflected during the course of cross of PW.1. If at all, any lacks in accepting the affidavit evidence of the accused by virtue of non obtaining permission under Sections 315 and 316 of Cr.P.C., Judgment 24 C.C.No.4254/2016 whatever the defence placed by the accused is on hand by way of cross-examining the PW.1is also available. Both the defense of the accused are one and the same. Therefore, it requires to appreciate the probable defence set out by the accused on priority.

24. In this case, it is the burden on the accused to establish that, he and complainant together doing the partnership business in the name of Sri Annapoorneshwari Industries. In that regard, he produced the acknowledgment of registration of firm as per Ex.D2. On meticulous perusal of the same, it discloses, it was stood in the name of concerned alone, it does not depicts the name of complainant or accused. During the course of cross of DW.1, he deposed that:

"¸ÀzÀj ªÀåªÀºÁgÀªÀ£ÀÄß 2004 gÀ°è £Á£ÀÄ ªÀiÁqÀÄwÛzÀÄÝ, 2011 gÀ°è ¦AiÀiÁð¢AiÀÄ£ÀÄß ¥Á®ÄzÁgÀ£ÁV D ªÀåªÀºÁgÀPÉÌ vÉUÉzÀÄPÉÆArzÉÝÃ£É. PÀ¼ÀÉzÀ 5 ªÀµÀðUÀ½AzÀ D ªÀåªÀºÁgÀªÀ£ÀÄß ¤°è¹zÉÝÃªÉ. D ªÀåªÀºÁgÀPÉÌ ¸ÀA§AzÀs¥ÀlÖAvÉ PÀZÁÑ ¸ÁªÀÄVæUÀ¼À£ÀÄß AiÀiÁjAzÀ ¥ÀqÉAiÀÄÄwÛzÉÝªÀÅ JAzÀÄ ºÉÃ¼À®Ä ¸ÁzÀså«®è. CªÀjUÉ ºÀtªÀ£ÀÄß £ÀUÀzÁV ¥ÁªÀw ªÀiÁqÀÄwÛzÉÝÃªÉ. ºÀt ¥ÁªÀw ªÀiÁrzÀ §UÉÎ zÁR¯É E®è."

Judgment 25 C.C.No.4254/2016

25. On going through the said testimony of DW.1, he categorically deposed, he started doing manufacturing bricks business since 2004 and inserted the accused in the year 2011 itself. He categorically deposed, about 5 years back from the date of he adduced evidence on 29.03.2019, he got stopped the said business. He also deposed that, in connection to the said business to whom, he used to purchase the raw-materials, he not able to disclose. But he categorically deposed, to whom he paid money in cash and to show that, paid money to those, he had no documents.

26. In the later portion cross-examination he also categorically deposed that, in order to show that, he did the business as such, not maintained any books of account and not remitted income tax. Very particularly, the DW.1 has deposed that:

"¦AiÀiÁð¢ JgÀqÀÄ wAUÀ¼ÀÄUÀ¼À PÁ® ªÀiÁvÀæ ¥Á®ÄzÁgÀgÁVzÀÝgÀÄ. DvÀ¤AzÀ §AqÀªÁ¼À ¹éÃPÀj¹zÉ. CzÀPÉÌ ¸ÀA§AzÀs¥ÀlÖAvÉ DvÀ¤UÉ ¯Á¨sÁA±À CxÀªÁ £ÀµÀÖzÀ §UÉÎ AiÀiÁªÀÅzÉÃ zÁR¯ÉUÀ¼À£ÀÄß ¤ªÀðºÀuÉ ªÀiÁr®è. ¸ÀzÀj ¥Á®ÄzÁjPÁ ¸ÀA¸ÉÜ £ÀqÉAiÀÄÄvÁÛ EvÀÄÛ JAzÀÄ vÉÆÃj¸À®Ä ºÁdgÀÄ ¥Àr¹gÀÄªÀ zÁR¯ÉUÀ¼À «£ÀB ¨ÉÃgÉ zÁR¯É E®è."

Judgment 26 C.C.No.4254/2016

27. On going through the above testimony of DW.1, he categorically deposed that, the complainant was only the partner with the accused for the period of 2 months. He also deposed that, he got received investment from him. In that regard, to show the profit or loss, he not maintained any documents. It discloses, except Exs.D2 and D3, he had no other documents, to show that, it was partnership business. No doubt, the complainant has denied by way of cross-examining the DW.1 that, complainant was not a partner with the accused in running Sri Annapoorneshwari Industries business. The Ex.D2 does not disclose the name of complainant and accused. It is significant fact to note that, the accused got produced the partnership deed dated:20.06.2011 to entered into between complainant and accused in respect of running of Sri Annapoorneshwari Industries.

28. On going through the Ex.D3, it discloses, in respect of doing Manufacturing and Trading in all types of Bricks, Dairy and Poultry Forming. The said agreement was entered into, wherein, it also mentioned equally the partners has to contribute Rs.10 lakhs. However, the complainant has not admitted the execution of Ex.D3 partnership deed in between complainant and accused. Ex.D3 is the unregistered partnership deed. During the course of cross of DW.1, the complainant has attack on the Ex.D3 by Judgment 27 C.C.No.4254/2016 contending that, stamp paper was purchased on 23.06.2011 in the name of accused alone and partnership deed was entered in to on 20.06.2011 same was admitted by the DW.1. The suggestion made by the complainant side that, in pursuance of Exs.D2 and D3, the complainant and accused were not run the partnership business. By way of making suggestion to DW.1 that:

"¦AiÀiÁð¢UÉ ¸Á®ªÀ£ÀÄß vÉUÉ¹PÀÉÆqÀÄªÀÅzÁV ºÉÃ½ ¤r.3 PÉÌ DvÀ¤AzÀ £Á£ÀÄ ¸À»AiÀÄ£ÀÄß ¥ÀqÉ¢zÉÝÃ£ÉAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÁUÀ°Ã, ¦AiÀiÁð¢AiÀiÁUÀ°Ã vÀ¯Á gÀÆ.5 ®PÀë §AqÀªÁ¼À vÉÆqÀV¹®è, ¸ÀÄ¼ÀÄî ºÉÃ¼ÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è."

29. The complainant got clearly admitted that, whatever the signature found in Ex.D3 the alleged partnership deed is of the complainant. But it was suggested that, by assuring the complainant that, accused on the assurance of obtained loan, he took signature of Ex.D3, but DW.1 has denied the same. He also denied the suggestion that, either complainant or accused not invested Rs.5 lakhs each. From the said testimony of DW.1, it made clear that, whatever the signature found in Ex.D3 is of the complainant stands proved. If at all, the accused by falsely assuring, the complainant and obtained the signature on the said document, it is the complainant has to demonstrate, but in that Judgment 28 C.C.No.4254/2016 regard no satisfactory explanation is forth coming from the side of complainant. That apart, the DW.1 categorically deposed only for the period of 2 months, the complainant worked as a partner to the said business. Though, there was suggestion made to DW.1, as the complainant was not a partner to the said business, contrary to the same, the PW.1 in his cross-examination has categorically admitted that:

"£Á£ÀÄ ªÀÄvÀÄÛ gÁdtÚ 2011 gÀ°è C£Àß¥ÀÇuÉðÃ±Àéj EAqÀ¹Öç¸ï, EnÖUÉ ¥ÁåPÀÖj ºÁUÀÆ qÉÊj ¥sÁªÀiïð£ÀÄß ªÀiÁqÀ®Ä ¥Á®ÄzÁjPÉ ªÀiÁrPÉÆArzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. D jÃw PÉÃªÀ® ªÀiËTPÀªÁV ªÀiÁvÀ£ÁrPÀÉÆArzÉÝªÀÅ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. D jÃw £ÁªÀÅ ªÀåªÀºÁgÀ DgÀA©ü¹ £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆÃ¦ E§âgÀÆ PÀÆqÀ zÉÊ£ÀA¢£À ZÀlÄªÀnPÉUÁV SÁ° ¸À» ªÀiÁrzÀ ZÉPÀÄÌUÀ¼À£ÀÄß, ¸ÀzÀj ¸ÀA¸ÉÜAiÀÄ ¤ªÀðºÀuÉUÁV PÀZÉÃjAiÀÄ°è EqÀÄwÛzÉÝªÀÅ JAzÀgÉ ¸ÀjAiÀÄ®è. CzÉÃ jÃw ¤r.1 ZÉPÀÌ£ÀÄß £ÀªÀÄä ªÀåªÀºÁgÀPÁÌV ElÄÖPÉÆArzÉÝªÀÅ JAzÀgÉ ¸ÀjAiÀÄ®è. D jÃw ¤¦.1 ZÉPÀÌ£ÀÄß DgÉÆÃ¦ ªÀåªÀºÁgÀPÁÌV £ÀªÀÄä PÀZÉÃjAiÀÄ°è EnÖzÀÄÝ, CzÀ£ÀÄß £Á£ÀÄ zÀÄ§ð¼ÀPÉ ªÀiÁrPÉÆAqÀÄ DvÀ£À «gÀÄzÀÝ ¸ÀÄ¼ÀÄî ¥ÀæPÀgÀt zÁR®Ä ªÀiÁrzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆÃ¦ ºÀ£ÉßgÉqÀÆªÀÀgÉ ®PÀë ºÀt £À£ÀUÀÉ PÉÆlÄÖ MAzÀÄ ZÉPÀÌ£ÀÄß ªÀÄgÀ½ ¥ÀqÉzÀ §UÉÎ £À£Àß zÀÆj£À°è PÁtô¹gÀÄªÀÅzÀgÀ «£ÀB ¨ÉÃgÉ zÁR¯É E®è, DgÉÆÃ¦ ZÉPï£À ªÉÆvÀÛ ¤ÃqÀ®Ä ¨ÁzÀå£À®è JAzÀgÉ ¸ÀjAiÀÄ®è."

Judgment 29 C.C.No.4254/2016

30. On going through the testimony of PW.1, though at the first stretch, he denied the partnership venture done by the accused and complainant in the year 2011 in the name of Sri Annapoorneshwari Industries, Bricks Factory and Poultry Form. He categorically admitted they were only spoken in that regard. By way of making such admission, it also made clear that, since there was talk between the complainant and accused, in order to do the said partnership business, the Ex.D3 came into force has to be presume. The subsequent suggestion made to PW.1, it also discloses that, as per the said partnership business started by them, in the day to day use to kept signed blank cheques for the maintaining in the office was denied by the PW.1. The said suggestion discloses, the defence taken by the accused. Accordingly, it was also suggested by the advocate for the accused that, Ex.D2 cheque of the complainant was also kept in the office. Accordingly, accused also kept cheques in the office and the complainant by misusing the same got filed the false case. The PW.1 also deposed that, by pay Rs.12,50,000/- to the complainant from taken back one of the cheque from him, except made mentioned in the complaint to show the same, he had no document. It was suggestion made to the complainant that, the accused was not liable to pay any money.

Judgment 30 C.C.No.4254/2016

31. On appraisal of the evidence of DW.1 as well as cross- examination of PW.1 from the point of Exs.D2 and D3, it made clear that, there were talks made between complainant and accused to run the partnership business in the name of Sri Annapoorneshwari Industries. Therefore, the complainant came forward to put his signature on the Ex.D3. The Ex.D3 document is produced by the accused, though complainant has denied. When the documentary evidence at Ex.D3 which bares the signature of the complainant and accused is very much available on record, to disprove the same, the complainant has not produced any contra evidence. The accused contending by him, clearly established that, there were partnership business held between complainant and accused. When there is documentary evidence at Exs.D2 and D3 is very much available on record, particularly, the complainant was one of the partner at Ex.D3, in order to disbelieve the genuineness of Ex.D3, complainant has not produced any evidence. Thereby, the complainant by way of exclusive of evidence against the application of document to existing facts as per Section 94 of Evidence Act, clearly establish there were partnership agreement was entered into between complainant and accused. When accused is able to establish the partnership business, it has to be presume that, the complainant Judgment 31 C.C.No.4254/2016 also participated in the business with the accused as found in Ex.D3. It was the specific defence taken by the accused that, for meet out day to day expenses by way of making payment to suppliers or his customers, the complainant and accused used to kept signed blank cheques in the office. Not only he taken up such contention, but also produced the Ex.D1 signed blank cheque of the complainant by way of confrontation.

32. During the course of cross of PW.1, he categorically admitted that:

"¢.20.06.2011 gÀAzÀÄ £À£Àß ªÀÄvÀÄÛ DgÉÆ¦AiÀÄ £ÀqÀÄªÉ ¥Á®ÄzÁjUÉ ¥ÀvÀæ DVzÉ JAzÀÄ, eÉgÁPïì ¥ÀæwAiÀÄ£ÀÄß ¸ÁQëUÉ vÉÆÃj¹zÁUÀ D jÃw AiÀiÁªÀÅzÉÃ ¥Á®ÄzÁjPÉ DV®è CzÀ£ÀÄß ¸ÀÈ¶Ö¹PÉÆArzÁÝgÉ JAzÀÄ £ÀÄrAiÀÄvÁÛgÉ. CzÀPÉÌ £Á£ÀÄ ¸À»AiÀÄ£ÀÄß ªÀiÁrzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQëUÉ ¸À» DvÀ£À ¸À» EgÀÄªÀ SÁ° ZÉPï ¸ÀASÉå 241058 £ÀÄß vÉÆÃj¹zÁUÀ ¸ÁQë CzÀ£ÀÄß £ÉÆÃr M¦àPÉÆAqÀ ªÉÄÃgÉUÉ ¤r.1 JA§ÄzÁV UÀÄgÀÄw¯Á¬ÄvÀÄ. ¸ÁQë CzÀgÀ°ègÀÄªÀ ¸À» vÀ£ÀßzÉÃ JA§ÄzÁV £ÉÆÃr M¦àPÉÆArgÀÄvÁÛgÉ. ¤r.1 SÁ° ZÉPÀÌ£ÀÄß §ºÀÄ±ÀB £ÀgÀ¹AºÀªÀÄÆwð CxÀªÁ ¥ÀÅlÖ¸Áé«Ä ¥ÉÊ£Á¤ìAiÀÄgÀÄUÀ¼ÀÄ £À¤ßAzÀ ¥ÀqÉ¢zÀÝgÀÄ."

33. On meticulous perusal of the said cross-examination of PW.1, when tendered the Xerox copiers of partnership deed Judgment 32 C.C.No.4254/2016 entered into between complainant and accused dated:20.06.2011, he denied the same by stating it was created. Even he stated, he denied his signature found at Ex.D3. When it was standard the signed blank cheque of the complainant bearing No.241058, he categorically admitted the signature and cheque is of him. By deposing so, the complainant gave his explanation either Narasimhamurthy or Puttaswamy could have taken the said cheque, but he has not confirmed exactly to whom he gave. Since Ex.D1 is the cheque, to whom it was gave by the complainant, it is him to explain, but he not satisfactorily demonstrated. In order to establish that, either of the parties, as he referred, got issued the said cheque by the complainant definitely, he had no impediment to examine them, but for the reasons better known to him, he not choosen to examine either Narasimhamurthy or Puttaswamy financiers.

34. Whereas, the accused by way of production of Ex.D1 signed blank cheque of the complainant, has clearly demonstrated that, the said cheque in blank were given by the complainant together with signed blank cheque of the accused produced by the complainant at Exs.D1 to D3 were kept in the office of Sri Annapoorneshwari Industries, for make use day to day business, but the same got misused by the complainant. From which, it Judgment 33 C.C.No.4254/2016 discloses, when the production of Ex.D1 signed blank cheque pertaining to complainant, the accused has successfully proved that, under the said compelling circumstances, the complainant and accused used to kept signed blank cheques in their office at Ex.D3. There is some force in the contention of the accused, otherwise, why the signed blank cheque of the complainant at Ex.D1 came to the possession of the accused other than the probable defence set out by him is not contradicts by the complainant. Therefore, this court has no other go to draw the inference that, because of complainant and accused did joint venture of Sri Annapoorneshwari Industries, for its transaction both were kept signed blank cheques for making payment to their suppliers or customers as contended by the accused. Accordingly, one of the cheque of the complainant at Ex.D1 kept in the office and since the complainant stopped the partnership business with the accused after 2 months, the same document was kept in the custody of the accused. Therefore, the accused has proved with sufficient cause that, complainant and accused used to kept signed blank cheques in their office for day to day business.

35. The said probable defence of the accused, clearly contradicts statutory presumption as to law and facts, and he able Judgment 34 C.C.No.4254/2016 to made out one of the strong doubtful circumstances to make a prudent man to believe that, under such circumstances of the case and compared with the rival contentions, it appears that, with the contention of the accused is more probable to act upon plea that, the existence of legally recoverable debt not exist. In this case, the accused not admitted the contention raised by the complainant as to borrowing loan of Rs.20 lakhs from Smt.L.Malathi Bai, Rs.10 lakhs each from Ramesh, Puttaswamy and Narasimhamurthy on the security of the property documents of the complainant and his wife, as he urged and specifically denied the very contention. If at all, the accused admitted the receipt of money as alleged by the complainant from the above said persons on the security of property documents of the complainant, then, it no need to expect the accused to produce any contra document. The accused not admitted the borrowing of loan either from the complainant or from any other persons made mentioned above.

36. The accused also attack on the complainant, on another foot by contended that, he not borrowed any money from the complainant or from the above said persons as alleged by the complainant for the tune of Rs.50 lakhs on the security of property document of the complainant. In that regard, the accused not Judgment 35 C.C.No.4254/2016 produced any document, as it is the negative evidence cannot be accepted to produce from the side of accused. If at all, any transaction were held as alleged by the complainant, definitely, it is the complainant is to require produce necessary oral as well as documentary evidence. In that regard, the accused had relied upon the documents produced by the complainant and stating that, in respect of the separate suits filed by Ramesh as per Ex.P13, Malathi Bai as per Ex.P15 against complainant herein and as per Ex.P18 suit filed by the Puttaswamy against the wife of complainant and also suit filed by one Chandramma against complainant herein as per Ex.P19, the accused name is not been seen, with regard to the alleged transaction or alleged amount made mentioned by the complainant were transferred to the hands of accused. Whatever the proceedings initiated against the complainant and his wife as per Ex.P13, P14, P18 and P19, it made clear that, the accused is not a party to the said transactions.

37. No doubt, on going through the Ex.P17 certified copy of registered sale agreement dated:30.11.2011 executed by the complainant in favour of Smt.Malathi Bai.L, which reflects for the sale consideration of Rs.60 lakhs, the complainant has sold the property and got received the advance amount of Rs.26 lakhs, Judgment 36 C.C.No.4254/2016 wherein, M.R.Jairaj and accused herein were cited as witnesses. On meaningful reading of Ex.p17 relied by the complainant, it does not discloses the role of accused, as to any money handed over from the complainant to the accused or from Smt.Malathi Bai.L, to the accused as alleged by the complainant. Whatever the suites filed by the respective persons as mentioned in Ex.P13, P14, P18 and P19, it made clear that, it was based on the registered sale agreement alleged to be executed by the complainant and his wife by name Nirmala.B.T in favour of the respective purchasers by virtue of sale agreement dated:29.04.2011, 30.11.2011, 07.01.2012 and 30.01.2012.

38. It is significant fact to note that, the respective purchasers as made mentioned therein got initiated necessary legal proceedings for the specific performance against the complainant herein. In all the litigations, the complainant had taken the same defence as narrated in the complainant herein. But the judgment passed in O.S.No.7436/2014 at Ex.P13, by nullifying the contention of the complainant it was decreed the suit filed by B.R.Ramesh and directed the complainant herein to execute the registered sale deed. The production of Ex.P13 to P21, it made clear that, it was recited and pleaded about the transaction inter- say between the complainant being a vender and the respective Judgment 37 C.C.No.4254/2016 purchasers, wherein, the role of accused not been seen. Therefore, those documents no way supports the claim of complainant as to by mortgage the property of the complainant, the respective purchasers have lent sum of Rs.50 lakhs to the accused on the security of his property documents is been disproved by the accused.

39. Mere service of legal notice and non-reply the same, it is not a ground to accept the contention of the complainant in prove the guilt of accused. As discussed above, first of all, the accused had successfully proved that, there was partnership business entered into between accused and complainant as per Ex.D3. The accused also able to prove that, in connection to the said business, accused and complainant used to kept signed blank cheques in the office for the day to day business purpose for making payment to the respective suppliers/customers or any other, accordingly, the Ex.D1 signed blank cheque of the complainant was kept in the office of accused, after he left out, the questioned cheques in the absence of complainant narrated specific linking evidence, as to the questioned cheques were issued by the accused for discharge of existence of legally recoverable debt. That apart, to make believe coupled with the Ex.D1 and questioned cheques at Exs.P1 to P3 signed in blank Judgment 38 C.C.No.4254/2016 kept in the office of Sri Annapoorneshwari Industries and therefore, each of the complainant and accused possessed the respective cheques belongs to each other, which is placed before this court.

40. Even, the accused also proved that, he not borrowed any loan from either complainant or from financiers by names Smt.L.Malathi Bai, Sri.Ramesh, Sri.Puttaswamy and Sri.Narasimhamurthy for the tune of Rs.50 lakhs. The accused has successfully rebutted the case of complainant and statutory presumption enumerated under Sections 118 and 139 of Negotiable Instruments Act. Therefore, it is reverse burden casted on the complainant to prove his case beyond the reasonable doubt.

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".

Judgment 39 C.C.No.4254/2016 In another decision reported in ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:

(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -

Something probable has to be brought record -

Burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - Thereafter the said presumption arising under Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural even human conduct and public and private business) -

Evidence Act, 1872 - Section 114 - Presumptions of fact under".

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 Judgment 40 C.C.No.4254/2016 necessary to know how the complainant advanced such a huge amount".

41. 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.

42. On going through the complaint allegations, the complainant has clearly admitted that, whenever the accused as alleged requesting for arrange the loan of Rs.50 lakhs, the complainant expressed his inability to arrange the such big amount is been proved. When complainant by pleading as such, has admitted he had no such requisite fund to accommodate or help the accused. Accordingly, complainant has alleged that, accused was informed him that, by mortgaging the property of the complainant, would take loan from the financiers by names Smt.L.Malathi Bai, Sri.Ramesh, Sri.Puttaswamy and Sri.Narasimhamurthy. Though, he had his own property bearing Sy.No.123/2 at Tavarekere Village, since he was put into sale, in order to sell that property and clear the loan of complainant, he asked the complainant to give his property documents as security. Accordingly, on the security of property documents of the complainant, the accused borrowed loan of Rs.20 lakhs from Judgment 41 C.C.No.4254/2016 Smt.L.Malathi Bai and Rs.10 lakhs each from Sri.Ramesh, Sri.Puttaswamy and Sri.Narasimhamurthy.

43. The complainant has admitted that, as pleaded by him, the accused had property in his own at Tavarekere Village. If at all, any compelling circumstances arose to the accused definitely, by putting his property as security, could have borrow the loan from the respective financiers and no need to ask the complainant to provide his property documents. In order to establish that, the above said 3 persons were lent loan of Rs.50 lakhs to the accused on the property documents of the complainant as he contended, he went to the Sub-Registrar Office and he was saying that, loan agreement has been registered and accused undertakes to clear the loan within 6 months. By way of taking such contention, complainant has clearly admitted that, he went to the Sub-Registrar Office. In order to show that, by furnishing his property as security, he made above said financers to provide loan to accused, the alleged loan agreement is not been furnished by the complainant. If at all, any loan agreement was registered as alleged by the complainant, definitely, whatever it may be the nomenclature. He could have produce such registered documents before this court, but for the reasons better known to him, definitely, he named as loan agreement, no such agreement Judgment 42 C.C.No.4254/2016 or any security document executed by him in favour of respective financiers before the Sub-Registrar Office is not been furnished. Even he contended that, on the security of his property, the above said 4 persons lent Rs.50 lakhs to the accused, he not choosen to examine any one of them to substantiate his contention, based on the property of the complainant, they have disbursed loan to the accused, for the reasons better known to complainant, not produced the registered agreement entered into between complainant and respective financiers before the Sub-Registrar Office.

44. The complainant also alleged that, the alleged financiers have filed separate suits against the complainant colluding each other for specific performance based on the documents executed by the complainant. Though, he alleged as such, whatever the documents alleged to be executed by the complainant in favour of those financiers, the complainant had not produced any such document. In respect of the loan of Rs.50 lakhs the alleged to be given to the accused on the security of his property documents, he taken that much risk, prudent man cannot be accepted the said contention. The complainant alleged that, as the accused not repaid the loan, when he asked for its repayment, he conducted several panchayaths, wherein, he agreed to repay the loan of Judgment 43 C.C.No.4254/2016 Rs.50 lakhs with interest at 3.50% p.m. But the accused had not paid the said amount; therefore, on 01.09.2014 as per Ex.P10, he lodged complaint before the Kamakshipalya Police Station.

45. On going through the Ex.P10, he contended in brief that, the accused earlier came for asking loan of Rs.10 lakhs. The complainant told him that, he was not able to pay the said much amount, he unable to arrange the same, by that time, the accused was made believe him that, the property stands in the name of wife of complainant were mortgaged to Puttaswamy and borrowed loan of Rs.10 lakhs, and accused undertakes to repay the same within 2 months. Though, complainant has contended that, if at all, accused took the property of complainant's wife, by mortgaging to Sri.Puttaswamy, he could have drag Smt.Nirmala.B.T and Puttaswamy before the court of law to extract the truth. In that regard, no effort is been made nor produce any document got executed by Puttaswamy in favour of the wife of complainant for having obtaining of Rs.10 lakhs and paid to the accused.

46. The said Ex.P10 also continues by alleged that, the said Rs.10 lakhs were taken by the accused, undertakes to repay within 2 months. Later again accused came to complainant and Judgment 44 C.C.No.4254/2016 asked him for obtain loan from bank for paying processing charges demanded Rs.1 lakh from the complainant, by that time, since he had no money, he gave 100 gram gold articles to accused on 14.04.2011. In that regard also in order to show that, he gave gold as such, for the purpose of paying Rs.1 lakh to the accused no acceptable explanation or documentary evidence or oral evidence is forth coming from the side of complainant.

47. The complainant also at Ex.P10 further alleged that, once again the accused approached the complainant after some days, by told him that, his property records were mortgage and for obtaining loan of his bricks factory and taken back the property documents asked for the monetary assistance from the complainant. Accordingly, again on 29.09.2011 from the friend of accused by name Ramesh by mortgaged his property situated at ITI Layout, the accused took loan of Rs.10 lakhs. By contending as such, whatever the document was furnished by the complainant to Ramesh as security for the alleged loan of Rs.10 lakhs given to accused, the complainant not produced any best particulars nor produce documentary evidence or examine the said Ramesh.

Judgment 45 C.C.No.4254/2016

48. The complainant again contended that, from the friend of accused, advocate Anilkumar, whose friend by name Vittal by mortgaged the property of the complainant on 30.11.2011 sum of Rs.20 lakhs taken by the accused and another Rs.10 lakhs loan by mortgaging his property to Narasimhamurthy, the accused had taken the said loan. The complainant, on which prudence he go on making allegations that, if at all, lent any loan, was it necessary to furnish his various property documents as well as property documents of his wife to the respective financiers in respect of alleged lent of loan to the accused as security would creates doubt. If at all, earlier loan obtained by the accused of Rs.10 lakhs from Puttaswamy by mortgaged the property of wife of complainant is not been repaid, can any prudent man again gave Rs.1 lakh by given his golden ornaments for the purpose of loan, is highly impossible and no prudent man would do so. That apart, he also contended that, on the 3rd and 4th time for the purpose of borrowing loan of Rs.10 lakhs, Rs.20 lakhs and Rs.10 lakhs respectively from Ramesh, Vittal and Narasimhamurthy, he go on mortgage or gave his property security documents, itself creates doubt. When earlier loan is not repaid any prudent man could not come forward to offer guarantee of his property one after another.

Judgment 46 C.C.No.4254/2016 The very contention of the complainant also creates doubts and same is not removed by the complainant.

49. In order to prove the contention of the complainant, the Ex.P10 does not discloses, the execution of any sale agreement or any other documents which got register before the Sub- Registrar Office as alleged in the pleading. In that regard, no document is been produced by him before this court. The complainant has solely depend upon the statement given by the accused before the Police Station as per Ex.P12. No doubt, the accused during his evidence has deposed that, the police have took signature on blank paper and got prepared the statement without his information. Whatever the statement alleged to be given by the accused as per Ex.P12 before the Police Station is consequent to lodge complaint at Ex.P10 by the complainant. The accused has denied that, he not gave that statement, it was not his voluntary statement, it was got prepared on the blank singed paper. Whatever the statement recorded by the concerned police, it cannot be corroborates the case of complainant, it only can used for the purpose of contradiction in criminal case. When there is serous allegation made against the accused, as to non payment of Rs.50 lakhs, in that regard, the Judgment 47 C.C.No.4254/2016 Ex.P10 complaint lodged by the complainant but, the accused has denied the contents of Ex.P12 statement recorded by the police.

50. In a decision reported in AIR 1999 SC 1969, in a case between Ramaprasad V/s. State of Maharashtra. It was pleased to held that, the statement of witness before investigation officer cannot be use as evidence. Therefore, no significance can be attached to the statement given by the accused before the police as under the pressure circumstances it could have been recorded against the will of accused. If at all, the complainant was genuine in dealing with the transaction with accused as he alleged, definitely, he could have secure necessary documents in order to protract the interest as he alleged. But despite, alleging furnish his property as security to the financiers, he simply kept quite and by relying upon Ex.P12 contending, accused is liable to pay loan of Rs.50 lakhs is cannot be accepted.

51. From the cross-examination of PW.1, the complainant has admitted that, he himself not paid loan to the accused. The PW.1 in his cross-examination has deposed that:

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52. On going through the said testimony of PW.1, he deposed that, during October and November, 2010 as well as in the year Judgment 49 C.C.No.4254/2016 2012, Puttaswamy were entered into agreement with the complainant. He also deposed, he does not remember the exact date. He also deposed that, accused himself got introduced the financiers by names Smt.L.Malathi Bai, Sri.Ramesh, Sri.Puttaswamy and Sri.Narasimhamurthy. He denied the suggestion that, from those complainant took loan of Rs.50 lakhs, he not produced any document, but he volunteers that, he got produced Exs.P1 to P3 cheques. He also deposed that, the said loans were borrowed by the accused on the mortgage of property of the complainant. In that regard, except the complaint he had no other document. There was clear suggestion made to PW.1 that, the said agreements were entered into between complainant with respective financiers in respect of the sale of his property, but he denied the same. The PW.1 volunteers that, when the accused borrowed loan through them, while mortgage the property of the complainant, they were prepared registered sale agreement. Even he deposed, he had no impediment to produce the same. Even he deposed, since the accused was his friend, on belief he not read over the registered document, but affixed his signature. Even he deposed, he does not know that, regarding payment of any money to the accused there is no recitals in the said agreement. By deposing so, the PW.1 though, he claiming Judgment 50 C.C.No.4254/2016 the agreement was entered into between Sub-Registrar Office, definitely, ought to produce the same in order to known the truth. But for the reasons better known to him, he avoided to produce the same before this court.

53. On going through the document at Ex.P13 - Judgment, it discloses, Ramesh filed a suit against the complainant herein based on agreement dated:29.04.2011. Wherein, marshalling of pleading discloses, the said Ramesh purchased the property for sale consideration of Rs.22,15,000/- and out of which as per agreement dated:29.04.2011, he paid advance amount of Rs.10 lakhs. On that ascertain the said Ramesh obtained judgment and decree. Though the complainant defended the mater under the same grounds, he failed to secure and nullified the said agreement. Therefore, facts remains that, the complainant got executed sale agreement in favour of Ramesh stands proved as per judgment at Ex.P13.

54. That apart, as per Ex.P15, plaint filed by Smt.Malathi Bai.L against the complainant herein in O.S.No.9220/2014 coupled with the sale agreement at Ex.P17, it made clear that, the complainant sold his property to her by virtue of the said agreement for the sale consideration of Rs.60 lakhs and the complainant as per Judgment 51 C.C.No.4254/2016 cheque bearing No.119552 got received sum of Rs.5 lakhs as advance and Rs.21 lakhs by way of cash. The complainant in his cross-examination has admitted the receipt of Rs.20 lakhs. If at all, as alleged by the complainant, the very Smt.Malathi Bai.L by giving property security secured Rs.20 lakhs and given to the accused, definitely, the cheque should not be given in the name of complainant. The said agreement discloses, the complainant got received sum of Rs.26 lakhs, mere because of the accused was signatory the said document was witness, it cannot be construed that, whatever the amount taken by the complainant given to the accused. Even it was not the contention of the complainant that, by receiving money from respective financiers gave it to accused.

55. That apart, Ex.P8 order sheet in O.S.No.493/2013 discloses, Puttaswamy filed suit against the wife of complainant by name Nirmala.B.T. On going through the complaint at Ex.P19 it discloses, the allegations, normally got executed sale agreement in favour of Puttaswamy on 01.08.2014 for the sale consideration of Rs.10 lakhs and wherein alleges, she received sum of Rs.4 lakhs by way of cheque dated:09.01.2012 and sum of Rs.4 lakhs were paid by the purchaser to her. It is not the contention of the complainant that, his wife also gave her property as security and got received money and paid to the accused as Judgment 52 C.C.No.4254/2016 loan. Therefore, Exs.P18 and P19 does not supports the contention of complainant.

56. The Exs.P20 and P21 - order sheet, plaint and written statement of the complainant herein in a suit filed by Chandramma, on perusal of the same, it reveal that, the complainant got executed the sale agreement dated:30.01.2012 for Rs.20 lakhs and got received Rs.10 lakhs. From her also, the complainant by way of cheque bearing No.747508 got received Rs.5 lakhs and remaining amount of Rs.5 lakhs by way of cash. The document at Exs.P13 to P21 clearly manifest that, the complainant and his wife got executed sale agreements in favour of the respective purchasers by receiving the advance amount, that too, portion of amount by way of cheques. Those documents discloses, the participation of the complainant and the purchasers not discloses, the role of the accused nor on behalf of accused, complainant got mortgaged his property and money was lent to accused. Even the complainant has not disclosed, by receiving sale consideration from the respective purchasers, he mobilized the fund and given to the accused. If at all, he taken such contention, he should plead and prove, but no such effort has been made. For the reasons better known to complainant, though he is claiming got executed loan agreement in favour of respective Judgment 53 C.C.No.4254/2016 financiers, he not produced the same before this court. The institution of suits by the various persons against the complainant and his wife, discloses that, the complainant got executed sale agreements in favour of those persons, therefore, they have initiated proceedings. Hence, the complainant has avoided to produce those loan agreements/sale agreements registered before the Sub-Registrar Office.

57. The complainant has alleged in the complaint, as failed to prove that, by furnishing his property as security, the accused borrowed loan from the financiers stated supra for the tune of Rs.50 lakhs. If at all, the accused borrow loan directly from the complainant, it is the complainant require to said those things in the complaint, but the same lacks. If at all, the loan is taken by the accused directly from the said financiers for the tune of Rs.50 lakhs, it was look out between the said financiers and accused for initiate necessary legal action. From the averments and allegations made in the complaint, it discloses that, the consideration of Rs.50 lakhs were not pass on to the accused from the hands of complainant herein. In order to show that, by mortgage his property, he made above Smt.L.Malathi Bai, Sri.Ramesh, Sri.Puttaswamy and Sri.Narasimhamurthy were lent sum of Rs.50 lakhs to the accused, there is no corroborative Judgment 54 C.C.No.4254/2016 evidence produced by the complainant. If at all, his property was given as security definitely, by got the same reasons could have executed loan agreement inspite of sale agreement as found in the Exs.P13 to P21. The allegations made in the present complaint and allegations made in the complaint alleged by the complainant before the police as per Ex.P10 somehow not tallied and contradicts. Under such circumstances, as contended by the complainant, the questioned cheques were given by the accused on 10.07.2015 for discharge of existence of legally recoverable debt is highly improbable. Perhaps, the complainant could have possessed the cheques pertaining to the accused for the reasons set out by him and mere because of consists of signatures of the accused in the same, it would not suffice to presume that, the accused got issued and executed those cheques in favour of the complainant for discharge of loan of Rs.37,50,000/-. In order to show that, the accused was paid Rs.12,50,000/- in respect of the cheque bearing No.384538 and taken back the cheque, the complainant has not produced any documentary evidence.

58. However, the accused in his cross-examination has admitted that, the complainant by threat got received sum of Rs.12,50,000/- from him. Mere payment of the said Rs.12,50,000/- without any valid grounds, itself is not renewed the Judgment 55 C.C.No.4254/2016 transaction as alleged by the complainant. In order to consider the amount covered under Exs.P1 to P3 cheques are the legally recoverable debt, it is the complainant has to prove his contention with clear, convincing and clinching evidence. On the other hand, the accused by way of furnishing acceptable probable defence has destroyed the case put forth by the complainant. On going through the rival contentions, it appears that, without any sound reason, the cheques at Exs.P1 to P3 pertaining to the accused as well as cheque at Ex.D1 pertaining to the complainant, appears to be misused by both the parties. Therefore, it requires to cite object of the act.

As per dictum reported in AIR 2006 SC 128:(2006) 3 SCC 658:2006 Consideration receipt.L.J.1683, in a case between Mosaraf Hossain Khan V/s. Bhagheeratha Engg. Ltd. Wherein, it was pleased to observed that:

"The object of the provision of Section 138 of Negotiable Instruments Act is that, for the property and smooth functioning of business transaction in a particular, use of cheques as Negotiable Instruments would primarily depend upon the integrity and honesty of the parties. It was noticed that, cheques used to be issued as a device inter alia for defrauding the creditors and stalling the payments. Dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire Judgment 56 C.C.No.4254/2016 credibility of the business transactions within and outside the country suffers a serious setback. Remedy available in a civil Court is a long drawn process and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee."

59. On going through the said dictum, it discloses, dishonor of cheque by the bank causes court inconvenience to the payee and the entire credibility of the business transaction within serious set back.

It is worthy to cite that the decision reported in 2008 AIR SC 738 (Krishna Janardhan Bhat v. Dattatraya G. Hegde). Wherein, the Hon'ble Apex Court was pleased to held that:

"The provisions under Section 139 has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as Judgment 57 C.C.No.4254/2016 human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same".

"The courts must be on guard to see that merely on the application of presumption as contemplated under Section 139, the same may not lead to injustice or mistaken conviction".

60. From the above said dictum, it was also pleaded to observe that, the said provision was inserted to regulate the growing business in the country and strict liability to promote greater vigilance in the financial matters and safeguard the faith of the creditor in the drawer of the cheque, which is essential to the economic life of a developing country like India. Even it was also observed that, it shall not mean that the courts shall put a blind eye to the ground realities. Wherein also observed that, other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same. The courts must be Judgment 58 C.C.No.4254/2016 on guard to see that merely on the application of presumption as contemplated under Section 139, the same may not lead to injustice or mistaken conviction. As per the said dictum, it was also observed that, the rights of accused and the document of reverse burden as per Section 139, delicately require to be balanced.

In a decision reported in "2020" SC 321, in a case between Varinder Kumar V/s. Himachal Pradesh. Wherein it was pleased to observe that, "Criminal jurisdiction mandates rights to accused and prosecution.

61. Accordingly, in the case on hand, after adverting to the evidence of both oral and documentary as well as herein on the submission of both the parties through their advocates, it is the consider opinion of this court that, the complainant has failed to prove the guilt of the accused. The complainant first of all failed to prove that, on mortgage his property to financiers by names Smt.L.Malathi Bai, Sri.Ramesh, Sri.Puttaswamy and Sri.Narasimhamurthy were lent sum of Rs.50 lakhs in all to the accused is not been proved. The fact that, either the complainant or on his behalf, the above financiers on the guarantee of the complainant property lent loan to the accused, there is no Judgment 59 C.C.No.4254/2016 acceptable evidence is put forth by the complainant. The complainant brought the triangular financial transaction among complainant, accused and financiers without their being any base and sound reason. When the complainant has not paid money to the accused nor furnished his property as a security in respect of loan given to the accused by the said financiers, how the complainant is entitled for the amount covered under the questioned cheques at Exs.P1 to P3 is not been satisfactorily explained. When there is no passing of consideration from the complainant to the accused or on behalf of complainant, the said financiers gave money to the accused it cannot be said that, the consideration was passed to the accused on behalf of complainant or on the guarantee of his property. When no money is pass on to the accused as urged by the complainant, mere because of he possessed the questioned cheques at Exs.P1 to P3 for the reasons best known to him, he produced the same before this court and claiming it is legally recoverable debt, it cannot be acceptable. If at all, the version of the complainant were to be true, as to the execution of loan agreement in favour of the above said financiers and not executed any registered sale agreement, why he needs to receive the receipt of advance Judgment 60 C.C.No.4254/2016 amount made mentioned in the transaction covered under the Exs.P13 to P20, is also not been satisfactorily explained by him..

62. That apart, the admission made by the complainant, in his further cross-examination after production of Exs.P13 to P21, runs thus:

"¤¦.16 gÀ PÀgÁgÀÄ ¥ÀvÀæ £À£Àß ªÀÄvÀÄÛ ªÀiÁ®w ¨Á¬Ä gÀªÀgÀ £ÀqÀÄªÉ ¢£ÁAPÀ 30.11.2011 gÀAzÀÄ DVzÉ JAzÀgÉ ¸Àj. D PÀgÁj£À°è, ªÀiÁ®w ¨Á¬Ä AiÀÄªÀjAzÀ gÀÆ.26 ®PÀë PÀæAiÀÄzÀ ¥Àæw¥Às® £Á£ÀÄ ¥ÀqÉ¢zÉÝÃ£ÉAzÀÄ §gÉ¬Ä¹zÉ JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ PÀÉÃªÀ® gÀÆ.20 ®PÀë ªÀiÁvÀæ ¥ÀqÉ¢zÉÝÃ£ÉAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. D PÀgÁj£À°è DgÉÆÃ¦UÉ ºÀt ¤ÃrzÀ §UÉÎ G¯ÉèÃT¹®è JAzÀgÉ ¸Àj. ¸ÁQëAiÀÄÄ DgÉÆÃ¦ D PÀgÁjUÉ ¸ÁQë DVzÀÝgÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. DgÉÆÃ¦¬ÄAzÀ PÁ£ÀÆ£ÀÄ ¨Á»gÀªÁV ºÀtªÀ£ÀÄß ¥ÀqÉAiÀÄÄªÀ GzÉÝÃ±À¢AzÀ ¸ÀÄ¼ÀÄî ¥ÀæPÀgÀtªÀ£ÀÄß zÁR®Ä ªÀiÁrzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è."

63. On going through the said testimony of PW.1, he categorically admitted that, Ex.P16 agreement was entered into between him and Smt.Malathi Bai on 30.11.2016 for sale consideration of Rs.26 lakhs. He categorically admitted that, he got received Rs.20 lakhs from her. He categorically admitted, in the said agreement the money pass on to the accused is not been Judgment 61 C.C.No.4254/2016 recited, but he stated, he was witness to the same. He denied the suggestion that, for swindle money from the accused illegally, filed the false case. On going through the said testimony of PW.1, he categorically admitted the receipt of Rs.20 lakhs from the said purchaser Smt.Malathi Bail. If at all, it was the loan amount received by the complainant on behalf of accused, definitely, it could have been stated by him or clarifies, but no such explanation is forth coming. The said evidence made it clear that, the complainant got received the advance sale consideration from the purchasers. Accordingly, same was done in other matters of sale agreement entered into with other financiers; he avoided to produce the same before this court. Hence, from which, the adverse inference has to be drawn against the complainant that, since it was sale agreement not loan agreement, the complainant has not produced the same. As discussed above, the complainant has utterly failed to prove his case beyond the reasonable doubt, in order to prove the guilt of the accused. Hence, the accused is entitled for benefit of doubt for acquittal.

64. 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 Judgment 62 C.C.No.4254/2016 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".

65. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheques bare his signatures, that, does not mean that, the accused issued cheques 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:

Judgment 63 C.C.No.4254/2016 "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 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".

66. 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.37,50,000/- to the accused by the financiers on guarantee of his properties as he alleged. 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.

67. 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 Exs.P1 to P3 cheques amount of Rs.37,50,000/- and it is not legally recoverable debt. So, the Judgment 64 C.C.No.4254/2016 burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheques 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 cheques, who is not at all liable to pay the cheques 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 cheques for discharge of liability of Rs.37,50,000/-. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.

68. 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 cheques Exs.P1 to P3 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.

Judgment 65 C.C.No.4254/2016

69. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheques 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, cheques in question were 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.

70. 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.37,50,000/- 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 Judgment 66 C.C.No.4254/2016 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.

71. 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 30th day of July - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.

 Judgment                        67                  C.C.No.4254/2016



                           ANNEXURE

List of Witnesses examined on behalf of Complainant:

PW-1 : L.Anjan Kumar List of Exhibits marked on behalf of Complainant:

Exs.P1 to P3           :   Original Cheques
Exs.P1(a) to P3(a)     :   Signatures of accused
Exs.P4 to P6           :   Bank endorsements
Ex.P7                  :   Office copy of legal notice
Ex.P8                  :   Postal receipt
Ex.P9                  :   Unserved R.P.A.D cover
Ex.P10                 :   CC of complaint dtd:01.08.2014
Ex.P11                 :   CC of acknowledgment
Ex.P12                 :   CC of statement
Ex.P13                 :   CC of judgment in O.S.No.7436/2014
Ex.P14                 :   CC of decree in O.S.No.7436/2014
Ex.P15                 :   CC of plaint in O.S.No.9220/14
Ex.P16                 :   CC of written statement in O.S.No.9220/14
Ex.P17                 :   CC of sale agreement without possession
Ex.P18                 :   CC of order sheet in O.S.No.493/13
Ex.P19                 :   CC of plaint in O.S.No.493/13
Ex.P20                 :   CC of order sheet in O.S.No.10520/15
Ex.P21                 :   CC of plaint and w/s in O.S.No.10520/15

List of Witnesses examined on behalf of the defence:

DW.1 : N.Rajanna List of Exhibits marked on behalf of defence:

Ex.D1                  :   Original cheque bearing No.241058
Ex.D2                  :   Acknowledgment of registration firms
Ex.D3                  :   Partnership deed
Ex.D4                  :   Notarized copy of Aadhaar Card




                                 XXIII Addl. Chief Metropolitan
                                      Magistrate, Bengaluru.
 Judgment                68                     C.C.No.4254/2016




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

                       Acting under Section 255(1) of Cr.P.C.
                 the accused is acquitted for the offence
                 punishable under Section 138 of Negotiable
                 Instruments Act.
 Judgment          69                 C.C.No.4254/2016



                 The bail bond and cash security/surety
           bond of the accused stands cancelled.




                         XXIII Addl. Chief Metropolitan
                              Magistrate, Bengaluru.

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Bangalore District Court

L.Anjan Kumar vs N.Rajanna on 30 July, 2020