Bangalore District Court
Mr. T.B. Dayananda vs Mr. Kempegowda on 19 April, 2018
C.C.NO.21898/2017
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present: Smt. HEMA PASTAPUR
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 19th day of April 2018
C.C.No.21898/2017
Judgment under section 355 of Code of Criminal Procedure
Complainant : MR. T.B. DAYANANDA
s/o Bheemanna,
Aged about 42 years,
R/at No.996, 1st Floor,
4th Cross, NGOs Colony,
II Stage, Vrushabhavathinagar,
Bengaluru - 560 079.
(By Shri B.G. Nanjundaradhya, Advocate)
V/s
Accused : MR. KEMPEGOWDA,
Aged about 43 years,
R/at No.186, 1st Main,
11th Cross, Bapujinagar,
Opp. Karnataka Bank ATM,
Bengaluru - 560 026.
(By Shri B.S. Prakash, Advocate)
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C.C.NO.21898/2017
JUDGMENT
That, the complainant has filed the private complaint under section 200 of Code of Criminal Procedure, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the brief facts of the present case are as under:-
1. That, the complainant is working in Axis Bank, Jayanagara branch, Bengaluru and the accused was also working in said branch. That, the complainant and accused are known to each other since ten years and the accused in pursuance of said acquaintance in the month of June 2016 had approached and requested the complainant for advancing him a sum of Rs.2,00,000/-. That, the complainant from his savings a sum of Rs.57,200/- and by pledging the gold ornaments of his wife in Axis Bank for a sum a sum of Rs.1,22,800/-, on 25.06.2016 had advanced the accused a sum of Rs.1,80,000/- in cash. That, the accused at the time of availing the said loan amount though, had agreed to repay the same within three months from the date of its availment with an interest at the rate of 18% per annum, but, 2 C.C.NO.21898/2017 failed to do so and on persistent demands made by the complainant had issued in his favour two crossed cheques bearing No.759678 dated:-03.07.2017 for a sum of Rs.1,00,000/-
and No. 759679 dated:-03.07.2017 for a sum of Rs.88,000/- drawn on Axis Bank, Jayanagara branch, Bengaluru. That, the complainant on 03.07.2017 had presented the said cheques for encashment in Punjab and Maharashtra Co-Operative Bank, Ltd., Basaveshwara Nagara, Benagaluru and on 04.07.2017 the said cheques were returned with the sharas as 'Insufficient funds'. That, the complainant for the aforesaid acts of the accused on 14.07.2017 had personally served the legal notice on the wife of the accused Smt. Sukanya and issued the legal notice to the accused through RPAD and on 17.07.2017 the same was returned with the shara as 'No such person found'. That, in view of the same the complainant has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took the cognizance for the offence punishable under section 138 of the 3 C.C.NO.21898/2017 Negotiable Instruments Act and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to him. That, the accused in pursuance of said summons appeared before this court through his Learned counsel and he was enlarged on bail. That, substance of accusation of the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to tried. That, on completion of complainant side evidence the statement of the accused as contemplated under section 313 of the Code of Criminal Procedure, has recorded and read over him and he denied all incriminating evidence appearing against him.
3. That, I have heard the arguments and perused the materials placed on record. That, the accused has submitted the written arguments and I have gone through the same. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in his favour 4 C.C.NO.21898/2017 the crossed cheques bearing No.759678 dated:-03.07.2017 for a sum of Rs.1,00,000/- and No. 759679 dated:-03.07.2017 for a sum of Rs.88,000/- drawn on Axis Bank, Jayanagara branch, Bengaluru?
2. Whether the complainant has further proved that, the said cheques were dishonoured as 'Funds Insufficient' in the account of the accused and thereby the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act?
3. Whether the complainant has complied with the provisions of section 138(b) of the Negotiable Instruments Act, 1881?
4. What order?
4. That, the complainant to substantiate his contentions has deposed himself as PW1 and got marked the documents at EXs.P1 to 11 and closed his side.
That, the accused has not led the oral evidence on his behalf. That, the accused in cross-examination of the complainant has got marked the EXs.D1 to 3. 5
C.C.NO.21898/2017
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the NEGATIVE Point No.2 :- In the NEGATIVE Point No.3 :- In the NEGATIVE Point No.4:- As per the final order for the following:-
REASONS
6. Point No.1:- It is specific contention of the complainant that, the accused in the month of June 2016 had approached and requested him for advancing him a sum of Rs.2,00,000/- and for which he from his savings a sum of Rs.57,200/- and by pledging the gold ornaments of his wife in Axis Bank for a sum a sum of Rs.1,22,800/-, on 25.06.2016 had advanced the accused a sum of Rs.1,80,000/- in cash.
7. It is pertinent to note here that, the accused in cross- examination of the complainant has taken a specific defenses that, (i) no transaction had occurred between him and the complainant in respect of Rs.1,88,000/-;
(ii) the complainant is having no capacity pay him the said amount;
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C.C.NO.21898/2017
(iii) on 08.03.2015 he availed from the complainant a sum of Rs.20,000/- with an interest at the rate of 10% and at the time of availing and
(iv) on 16.02.2016 he retuned the said amount to the complainant with an interest.
8. It is pertinent to note here that, the accused has placed his reliance on following decision:-
1. John K. Abraham -vs- Simon C. Abraham and another, reported in 2014 Crl. L. J. 2304 wherein it has held that 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 or/loan in question to accused, (ii) that the issuing 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.
2. K. Subramani -vs- K. Damodar Naidu, reported in (2015) 1 Supreme Court Cases 99 wherein it has held that Debt, Financial and Money Laws - Negotiable 7 C.C.NO.21898/2017 Instruments Act, 1881- Ss. 138, 118 and 139 - Dishonour of cheque - Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant-accused-
Presumption in favour of holder of cheque, hence, held, stood rebutted.
3. Amzad Pasha -vs- H. N. Lakshmana, reported in 2010(3) KCCR 1950 wherein it has held that Negotiable Instruments Act, 1881- Sections 138 and 139 - Complainant not placed any evidence to show his financial capacity, no document of evidence of the loan transaction- Appeal rejected.
4. Shiva Murthy -vs- Amruthraj, reported in ILR 2008 KAR 4629 wherein it has held that it is only after satisfying that the complainant has proved existence of legally enforceable debt or liability, the courts could have proceeded to draw presumption under section 139 of the Negotiable Instruments Act and thereafter find out as to whether or not the accused has rebutted the said presumption.
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5. Sanjay Mishra -vs- Miss Kanishka Kapoor @ Nikki and another, reported in AIR 2009(N0C) 232 (BOM) wherein it has held that failure by complainant to disclose the amount advanced by him to the accused in his Income- Tax Return or Books of Accounts - Sufficient to rebut presumption under s. 139.
6. Krishna Janardhan Bhat -vs- Dttatraya G. Hegde, reported in 2008(1) Crimes 227(SC) wherein it has held that an accused need not examine himself for discharging the burden of proof placed upon him under statute - He may discharge his burden on the basis of the materials already brought on records - An accused has a constitutional right to maintain silence - Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.
9. It is pertinent to note here that, as stated above the complainant has contended that the accused in the month of June 2016 had approached and requested him for advancing him a sum of Rs.2,00,000/- and for which he from his saving a sum of Rs.57,200/- and pledging the gold ornaments of his wife in 9 C.C.NO.21898/2017 Axis Bank for a sum a sum of Rs.1,22,800/-, on 25.06.2016 he advanced the accused a sum of Rs.1,80,000/- in cash. It significant the burden heavily lies upon the complainant to probabalise his aforesaid contentions with all preponderance of probabilities.
It is pertinent to note here that, the complainant has not produced before the Court any document such as his Pass book, Statement accounts, etc., to substantiate that on 25.06.2016 he possessed with him a sum of Rs.52,700/-. It is pertinent to note here that, in absence of any cogent and reliable evidence the version of the complainant that he advanced a sum of Rs.52,700/- to the accused in cash cannot be accepted.
It is pertinent to note here that, the complainant is claiming that by pledging the gold ornaments of his wife in Axis Bank for a sum a sum of Rs.1,22,800/-, he advanced the said amount to the accused. It is significant to note here that, the complainant to probabalise his aforesaid contentions has mainly relied upon EX.P8- the Loan disbursement letter issued by the Axis Bank and EXs.P9 and 10- the Loan sanction letters. It is pertinent to note here that, the complainant on one hand asserts 10 C.C.NO.21898/2017 that by pledging the gold ornaments of his wife in said Bank he advanced the amount to the accused and contrary to his aforesaid contention in his cross-examination in page No.18 at 14th line has deposed that, £Á£ÀÄ ¸ÀzÀj §AUÁgÀªÀ£ÀÄß CqÀ«nÖgÀĪÀÅzÀPÉÌ ¨ÁåAQ£ÀªÀgÀÄ £À£Àß DQì¸ï ¨ÁåAPï SÁvÉUÉ ºÀtªÀ£ÀÄß dªÀiÁ ªÀÄÁrgÀÄvÁÛgÉ. ¸ÁQëUÉ FUÀ ¸ÀzÀj ºÀtªÀ£ÀÄß ¤ÃªÀÅ DQì¸ï ¨ÁåAQ¤AzÀ AiÀiÁªÀvÀÄÛ qÁæ ªÀiÁrPÉÆArgÀÄwÛÃgÉAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë qÁæ ªÀiÁrPÉÆArgÀĪÀÅ¢®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ.
It is further pertinent to note here that, the complainant in his cross-examination in page No.11 at 6th line has deposed that, ¸ÁQëUÉ FUÀ ¤ÃªÀÅ ¸ÀzÀj ºÀtªÀ£ÀÄß AiÀiÁªÀ ¨ÁåAQ¤AzÀ qÁæ ªÀiÁr DgÉÆæUÉ PÉÆnÖgÀÄwÛÃj JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë ¸Àé®à ºÀtªÀ£ÀÄß DQì¸ï ¨ÁåAQ¤AzÀ qÁæ ªÀiÁrPÉÆArgÀĪÀÅzÁV ºÁUÀÄÁ E£ÀÄÁß ¸Àé®à ºÀt vÀªÀÄä ªÀÄ£ÉAiÀÄ°èvÀÄÛ JAzÀÄ ºÉüÀÄvÁÛgÉ. 11
C.C.NO.21898/2017 It is significant to note here that, the complainant in his cross-examination in page No.7 at 15th line has specifically admitted that, £À£ÀUÉ £À£Àß DyðPÀ DzÁAiÀÄ PÀ«Ää EgÀĪÀÅzÀjAzÀ «ªÁ¢vÀ ZÉPÀÄÌUÀ¼À°è £ÀªÀÄiÁzÀÄ ªÀiÁrgÀĪÀ ªÉÆvÀÛªÀ£ÀÄß DgÉÆæUÉ PÉÆqÀĪÀ ¸ÁªÀÄxÀðå £À£ÀUÉ EgÀĪÀÅ¢®èªÉAzÀgÀÉ ¸Àj.
It is pertinent to note here that, from the perusal of the said evidence of the complainant it clearly appears that he has made the contradictory statements and the same have strike out the every root of the present complaint lodged by him against the accused. It is significant to note here that, from the said evidence of the complainant it clearly appears that, on 25.06.2016 he was not having the capacity to pay the said amount to the accused and he had not advanced the same to him.
It is significant to note here that, the complainant in his cross-examination has deposed that he advanced the said amount to the accused in presence of Shri Rajesh and Shri Chandrashekhar. It is pertinent to note here that, the complainant to substantiate his aforesaid contentions has not 12 C.C.NO.21898/2017 examined the said Rajesh and Chanrashekhar. It is pertinent to note here that, the complainant is claiming that while advancing the said loan amount to the accused he had not availed from him any document. It is significant to note here that, the said conduct of the complainant plays a vital role. It is pertinent to note here that, the complainant has failed to prove the existence of legally enforceable debt.
10. It is pertinent to note here that, the complainant has further contended that on persistent demands made by him the accused had issued in his favour two crossed cheques bearing No.759678 dated:-03.07.2017 for a sum of Rs.1,00,000/- and No. 759679 dated:-03.07.2017 for a sum of Rs.88,000/- drawn on Axis Bank, Jayanagara branch, Bengaluru.
It is pertinent to note here that, the complainant to substantiate his afore said contentions in his evidence has got marked the Cheques bearing No. 759678 dated:-03.07.2017 for a sum of Rs.1,00,000/- at EX.P1 and 759679 dated:-03.07.2017 for a sum of Rs.88,000/- at EX.P2.
11. It is pertinent to note here that, the accused in cross- examination of the complainant has taken a specific defense 13 C.C.NO.21898/2017 that, at the time of availing a sum of Rs.20,000/- from the complainant he issued in his favour his two cheques each Rs.10,000/- as a security and when he asked the complainant for returning the said cheques he failed to do so.
12. It is to be noted here that, the accused in support of his contentions has placed his reliance on following decisions:-
1. Hanumant R. Naik -vs- Ajit Harmalkar, reported in AIR 2009 (NOC) 397 (BOM) wherein it has held that Negotiable Instruments Act (26 of 1881). S. 138 -
Dishonour of cheque - complainant - Cheque issued by accused was a blank cheque and except signature, all details of cheque were filled by complainant - At what stage cheque was filled has not been stated by complainant, however evidence showed that complainant filled cheque at later stage - Said finding was disputed - Blank cheque is not a cheque in eye of law - Order acquitting accused - Is proper - Further complainant had not narrated entire history of transaction between him and accused.
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2. Avon Organics Ltd., -vs- Pioneer Products Ltd., and others, reported in IV (2003) 397 (BOM) wherein it has held that issuing ob blank cheque without mentioning date and amount, not a cheque at all: It is not bill of exchange at all as it is not drawn for certain amount:
Question of invoking Section 138 does not arise at all:
Section 138 does not cover inavalid cheques.
13. It is significant to note here that, the burden heavily lies upon the complainant to substantiate that the accused to discharge his legally enforceable debt had issued in his favour EXs.P1 and 2. It is pertinent to note here that, the complainant has specifically contended that on persistent demands made by him the accused had issued in his favour the EXs.P1 and 2. It is significant to note here that, the complainant in his complaint and in his examination-in-chief has not mentioned when the accused had issued the EXs.P1 and 2 in his favour. It further significant to note here that, the complainant in his cross-
examination in page No.13 at 10th line had specifically deposed 15 C.C.NO.21898/2017 that, ¸À£ï 2016gÀ°è DgÉÆæAiÀÄÄ £À£ÀUÉ «ªÁ¢vÀ ZÉPÀÌ£ÀÄß PÉÆnÖzÀÄÝ DzÀgÉ, £À£ÀUÉ ¢£ÁAPÀ UÉÆwÛgÀĪÀÅ¢®è.
It is pertinent to note here that, from the said evidence of the complainant it clearly appears that he is not aware when the accused had issued in his favour EXs.P1 and 2. It is further pertinent to note here that, the complainant in his cross- examination in page No.13 at 12th line has deposed that, DgÉÆæAiÀÄÄ ¤¦-1gÀAvÉ ZÉPÀÌ£ÀÄß £À£Àß ºÀwÛgÀ vÉÉUÉzÀÄPÉÆAqÀÄ §AzÀÄ CzÀgÀ MPÀÌuÉUÀ¼À£ÀÄß £À£ÀUÉ §gÉAiÀÄ®Ä ºÉýzÀÝjAzÀ CÀªÀÅUÀ¼À£ÀÄß £Á£ÀÄ ¨gÉÀ¢gÀÄvÉÃÛ£É ºÁUÀÄÁ DgÉÆæAiÀÄÄ CzÀgÀ ªÉÄÃ¯É ¸À»AiÀÄ£ÀÄß ªÀiÁrgÀÄvÁÛgÉ.
It is pertinent to note here that, the complainant for the first time has deposed the said facts in his said evidence. It is pertinent to note here that, from perusal of entire evidence of the complainant it clearly appears that the accused had not issued the cheques in his favour. It is significant to note here that, if the complainant fails to proves the execution of the instrument by the accused then the presumption arises in favour 16 C.C.NO.21898/2017 of the accused that he has not issued the instrument to discharge his legally enforceable debt. It is significant to note here that, the accused has taken a probable defences and has successfully rebutted the contentions of the complainant. It is pertinent to note here that, in view of My above findings and without much discussion I hold that, the complainant has failed to prove that the accused to discharge his legally enforceable debt had issued in his favour EXs.P1 and 2. In view of the same. point No.1 is answered in the NEGATIVE.
14. Point No.2:- It is specific contention of the complainant that on 03.07.2017 he presented the EXs.P1 and 2 for encashment in Punjab and Maharashtra Co-Operative Bank, Ltd., Basaveshwara Nagara, Benagaluru and on 04.07.2017 the said cheques were returned with the sharas as 'Insufficient funds'.
It is to be noted here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Cheque return memo's issued by the Bank at EXs.P3 and 4.
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C.C.NO.21898/2017 It is to be noted here that, as discussed on point No.1, the complainant has failed to prove that the accused to discharge his legally enforceable debt had issued in his favour EXs.P1 and 2 and if such being the case, the question of committing the offence by the accused under section 138 of the Negotiable Instruments Act, does not arise at all. It is to be noted here that, in view of My above findings and without much discussion I hold that, the complainant has failed prove that the accused has committed the offence punishable under section 138 of Negotiate Instruments Act. In view of the same, point no.2 is answered in the NEGATIVE.
15. Point No.3:- It is pertinent to note here that, the accused has contended that, he has not received the legal notice issued by the complainant.
It is pertinent to note here that, the accused in cross- examination of the complainant has got marked the summons issued by this Court to him through RPAD at EX.D1, Form No.1 at EX.D2 and Postal acknowledgement at EX.D3.
16. It is pertinent to note here that, the accused has placed his reliance on following decisions:-
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1. M. D. Thomas -vs- P. S. Jaleel and another, reported in (2009) 14 Supreme Court Cases 398 wherein it has held that Negotiable Instruments Act, 1881 - S. 138(b) -
Service of notice - proper mode of - Notice received by family, member, whether deemed to be served - Notice served on wife - Held, notice to drawer is sine qua non in terms of cl. (b) of proviso to S. 138 of the Act - Conviction of appellant therefore set aside.
2. N. G. Narayanaswamy -vs- M/s. Vijayanand Roadlines Ltd., reported in ILR 2001 KAR 101 wherein it has held that the notice as contemplated under section 138(b) is not issued to the drawer of the cheque within 15 days from the bank regarding the return of cheque as unpaid and notice to the payee who endorsed the same to the holder in due course is no compliance of section 138(b) of the Act.
3. Amzad Pasha -vs- H. N. Lakshama, reported in 2010(3) KCCR 1950 wherein it has held that notice sent by registered post not served - Posting was not properly 19 C.C.NO.21898/2017 addressed - Cannot be a deemed service of notice - Not complied with the provision of 138 of the N. I. Act.
4. B. Adhikari -vs- Ponraj, reported in 1996 RRI. L. J. 180 wherein it has held that non - compliance of mandatory provision of sub - clauses (b) and (c) of S. 138 - Conviction not sustainable.
17. It is pertinent to note here that, the complainant has contended that on 14.07.2017 he personally served the legal notice on the wife of the accused Smt. Sukanya and issued the legal notice to the accused through RPAD and on 17.07.2017 the same was returned with the shara as 'No such person found'.
It is pertinent to note here that, the complainant to substantiate his aforesaid contentions has got marked the Legal notice dated:-14.07.2017 at EX.P5, Legal notice issued to the wife of the accused dated:-14.07.2017 at EX.P6 and RPAD at EX.P7.
18. It is pertinent to note here that, the complainant is claiming that as per EX.P6 he personally served the notice on the wife of the accused. It is significant to note here that, in view of the dictum rendered in M. D. Thomas -vs- P. S. Jaleel and 20 C.C.NO.21898/2017 another, reported in (2009) 14 Supreme Court Cases 398 the said contention of the complainant do not hold water.
It is significant to note here that, the complainant in cause title of the present complaint and in EXs.P5 to 7 has mentioned the address of the accused as No.186, 1st main, 11th cross, Bapujinagar, opp.Karnataka Bank ATM, Bengaluru - 560026 and in RPAD-EX.D1 furnished by him to this Court has mentioned the address of the accused as No.186/3, 1st main, 11th cross, Bapujinagar, opp.Karnataka Bank ATM, Bengaluru - 560026. It is pertinent to note here that from perusal of EX.D1 it appears that the complainant has mentioned the house number of the accused as No. 186/3 and in EXs.P5 to 7 has mentioned the house number of the accused as No. 186. It is pertinent to note here that, from perusal of EX.P7 it appears that it was retuned with the shara as 'No such person found'. It is significant to note here that, from perusal of EX.5 to 7 it clearly appears that the complainant had dispatched the same to the wrong address of the accused. It is pertinent to note here that, in view of My above findings I hold that, the complainant has failed to comply with the provisions of section 138(b) of the Negotiable 21 C.C.NO.21898/2017 Instruments Act. In view of the same, point No.3 is answered in the
19. Point No.4:-That, as discussed on points No.1 to 3, I proceed to pass the following:-
ORDER That, acting under section 255(1) of Code of Criminal Procedure, the accused is acquitted for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the accused shall comply with the provisions of section 437(A) of the Code of Criminal Procedure. (Typed and corrected by me and then pronounced by in the open court on this the 19th day of April 2018) (Hema Pastapur) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Sri. T.B. Dayananda s/o Bheemanna. List of exhibits marked on behalf of complainant:-
Exs.P1 and 2 : Original cheque;
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Exs.P1(a) and 2(a) : Signatures of the accused;
Exs.P3 and 4 : Cheque return memo's;
Exs.P5 and 6 : Legal notices dated:-14.07.2017;
Ex.P7 : RPAD cover;
Ex.P8 : Loan disbursement letter dated:-
21.06.2016;
Exs.P9 10 : Sanction letters dated:-21.06.2016 and
Ex.P11 : Gold deposit receipt.
List of witnesses examined on behalf of the accused:-
- Nil -
List of exhibits marked on behalf of the accused:-
Ex.D1 : RPAD cover Ex.D2 : Form No.1 and Ex.D3 : Postal acknowledgement.
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
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