Bangalore District Court
Sri. D. Chikkanna vs Sri. Vishwanath on 28 May, 2021
1 C.C.No.610/2018 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 28th day of May, 2021
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.610/2018
Complainant : Sri. D. Chikkanna,
S/o. Narayanappa,
Aged about 45 years,
Occupation : .......,
R/at Maruthi Nagar,
1st Cross Gubbalala Village,
Subramanyapura Post,
Bengaluru 560 061.
(Rep. by Sri M.K. Shivaraju., Adv.,)
Vs
Accused : Sri. Vishwanath,
S/o. Krishnappa,
Aged about 26 years,
R/at Maruthi Nagar,
1st Cross Gubbalala Village,
Subramanyapura Post,
Bengaluru 560 061.
(Rep. by Sri. B.N. Nanjappa., Adv.,)
Case instituted : 08.12.2017
2 C.C.No.610/2018 J
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Acquitted
Date of order : 28.05.2021
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the father in law of the accused by name Mr. Subramani resident of Gubbalala Village were good friends and shared good, healthy and cordial relationship among us being the villagers of the gubbalala village for the past 20 years and he engaged in the business of poultry farm and other petty business and has been deriving good source of income besides deriving rental income to the tune of Rs.15,000/ per month and due to aforesaid source of income he had substantial saving with him. It is further contended that the fatherinlaw of the accused engaged in hiring / letting out the JCB equipments, vehicles and other machinery on hire / 3 C.C.No.610/2018 J rental basis and has been carrying on the said business and accused is a software Engineer working in Software Company in Bengaluru, It is further contended, that the accused and his father inlaw approached him during 2 nd week of October 2016 stating the Subramani was intending to purchase new JCB machine/ equipment, for which he was in requirement of hand loan of Rs.4 Lakhs from him, and they have requested him to advance the loan, accordingly in the last week of October 2016 he paid sum of Rs.4 Lakhs by cash to Accused and at that time the Accused and his fatherinlaw have represented and assured to repay the said sum on or before 31st March 2017 without committing any default. It is further contended that, during the first week of April 2017, the accused and his father in law have voluntarily met and requested him for granting some more time for repayment of hand loan amount of Rs.4 Lakhs up to mid of September 2017 and accused has issued two post dated cheques bearing No.184675 dated: 16.09.2017 for Rs.2 Lakhs and another cheque bearing No. 184679 dated:
16.10.2017 for Rs.2 Lakhs both cheques drawn on Indus Ind Bank, Jakkasandra Branch, Bengaluru 4 C.C.No.610/2018 J towards discharge of the said loan and requested him to present the said cheques on the date of cheques and same will be honoured. It is further contended that thereafter he had presented the first cheque bearing No.184679 dated: 16.10.2017 for realization through his banker Indus Ind Bank, Jakkasandra Branch, Bengaluru but it was returned dishonoured as "Insufficient Funds" on 18.10.2017 and thereafter he got issued legal notice on 07.11.2017 to the Accused by way of speed post and RPAD calling upon the accused to settle the payment of loan amount within 15 days from the date of notice and the said legal notice was not served on the accused, however the intimation was delivered to his family members for collecting the notice and returned with an endorsement as "Intimation Delivered" on 08.11.2017 and 09.11.2017 thus, the accused intentionally not arranged sufficient funds in his bank account and has committed an offence punishable U/sec. 138 of Negotiable Instrument Act. Hence the complainant has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.5 C.C.No.610/2018 J
3. Before issuing process against the accused, the Complainant has filed his affidavitinlieu of his sworn statement, in which, he has reiterated the averments of the complaint. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.7 i.e, Original Cheque dated:16.10.2017 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, copy of the returned Notice as per Ex.P.4, copy of the Postal Cover as per Ex.P.5, copy of the Receipt as per Ex.P.6, copy of the Acknowledgement as per Ex.P.7.
4. Primafacie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
5. In view of the principles of law laid down and as per the directions of the Hon'ble Apex Court in the 6 C.C.No.610/2018 J decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the accused, as he intended to set out his defence, the case was posted for the complainant evidence.
6. The complainant himself examined as PW.1 and his affidavit filed at the time of sworn statement treated as affidavit filed in view of oral evidence, in which he has reiterated the complaint averments and has adopted the documents which are already marked as Ex.P.1 to P.7 at the time of recording of sworn statement and closed his side.
7. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence.
8. The Accused himself examined as DW.1 and he has filed his affidavit in lieu of his examinationsin chief and got marked the documents as Ex.D.1 to Ex.D.4 i.e., two cancelled cheque's bearing no.
7 C.C.No.610/2018 J184678 and 184677 marked as Ex.D.1 and Ex.D.2, Statement of accounts pertaining to ICICI Bank are marked as Ex.D.3 and Ex.D.4, Marriage card marked as Ex.D.5. the accused has also examined his mother by name Smt. Marakka W/o. Late Kittappa and his Uncle by name Sri. V. Subramani has DW.2 and DW.3 and closed his side.
9. Heard the arguments of both learned counsels for the complainant and the Accused and perused the written argument submitted by the learned counsel for the complainant and Accused and decisions submitted by the learned counsel for both parties and materials on record.
10. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are:
1. Whether the complainant proves that the accused has issued cheque i.e 1) cheque for Rs.2,00,000/= bearing No.184679 dated: 16.10.2017 8 C.C.No.610/2018 J drawn on IndusInd Bank, Jakkasandra Branch, Bangalore to discharge legally recoverable debt to the complainant and when the complainant has presented a cheque for encashment through his banker but the said cheque has been dishonoured for the reasons "Funds Insufficient" on 20.10.2017 and the complainant issued legal notice to the accused on 07.11.2017 and inspite of it the accused has not paid the cheque amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
11. The above points are answered as under:
Point No.1: In the Negative. Point No.2:As per final order for the following:
REASONS
12. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi 9 C.C.No.610/2018 J criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act presupposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the 10 C.C.No.610/2018 J date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
13. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of 11 C.C.No.610/2018 J India and Hon'ble High Court of Karnataka in catena of decisions.
14. In the present case the complainant has examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire contents of the complaint. The complainant/PW.1 testified that, the father in law of the accused by name Mr. Subramani resident of Gubbalala Village were good friends since 20 years and he engaged in the business of poultry farm and other petty business and has been deriving good source of income besides deriving some rental income to the tune of Rs.15,000/ per month and due to aforesaid source of income. The complainant / PW1 further testified that the father inlaw of the accused engaged in hiring out/ letting out the JCB equipments, vehicles and other machinery on hire / rental basis and has been carrying on the said business and accused is a software Engineer working in Software Company in Bengaluru. The complainant / PW1 further testified that the accused and his fatherinlaw approached him during 2nd week of October 2016 stating the Subramani was intending to purchase new JCB 12 C.C.No.610/2018 J machine/ equipment, for which he was in requirement of hand loan of Rs.4 Lakhs from him, accordingly in the last week of October 2016 he paid sum of Rs.4 Lakhs by cash to Accused and at that time the Accused and his fatherinlaw have represented and assure to repay the said sum on or before 31st March 2017 without committing any default. The complainant / PW1 further testified that during the first week of April 2017, the accused and his father in law have voluntarily met and requested him for granting some more time for repayment of hand loan amount of Rs.4 Lakhs upto mid of September 2017 and at that time the accused has issued two post dated cheques bearing No.184675 dated: 16.09.2017 for Rs.2 Lakhs and another cheque bearing No. 184679 dated: 16.10.2017 for Rs.2 Lakhs (i.e., Ex.P.1 in this case) both cheques were drawn on Indus Ind Bank, Jakkasandra Branch, Bengaluru towards discharge of the said loan and requested him to present the said cheques on the date of cheques and same will be honoured. The complainant / PW1 further testified that he had presented the first cheque bearing No.184679 dated:
16.10.2017 for realization through his banker Indus 13 C.C.No.610/2018 J Ind Bank, Jakkasandra Branch, Bengaluru but it was returned dishonoured as "Insufficient Funds"
on 18.10.2017 and thereafter he got issued legal notice on 07.11.2017 to the Accused by way of speed post and RPAD calling upon the accused to settle the payment of loan amount within 15 days from the date of notice and the said legal notice was not served on the accused, however the intimation was delivered to his family members for collecting the notice and returned with an endorsement as "Intimation Delivered" on 08.11.2017 and 09.11.2017 thus, the accused intentionally not arranged sufficient funds in his bank account and has committed an offence punishable U/sec. 138 of Negotiable Instrument Act.
15. In support of oral evidence the complainant/PW.1 has produced documents as per Ex.P.1 to P.7 i.e, Original Cheque dated:16.10.2017 as per Ex.P.1, the signature on the said cheque identified by P.W.1 as that of the accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, copy of the returned Notice as per Ex.P.4, copy of the Postal 14 C.C.No.610/2018 J Cover as per Ex.P.5, copy of the Receipt as per Ex.P.6, copy of the Acknowledgement as per Ex.P.7 respectively.
16. The Accused in his defence has denied the loan transaction in question and issuance of cheque in question towards discharge of loan in question and service of legal notice upon him. The accused is also disputed the financial capacity of the complainant. It is the specific defence of the accused that his mother have borrowed a loan of Rs.1,50,000/ from the complainant for his marriage purpose by agreeing to repay the said amount within six months and interest of 5% per month and on the same day the complainant had collected his two filled cheques bearing no.184678 and 184677 for Rs.75,000/ each, for the security towards the said loan amount and also a cheque bearing no. 560034 for Rs.7,500/ towards interest of 5% per month and he and his mother have paid the interest regularly and after six months the complainant approached his mother and requested for repayment of loan, at that time his mother sought extension of time for repayment of the said loan amount but the complainant has requested 15 C.C.No.610/2018 J his mother to give the blank signed cheques for the purpose of extension of time, as per instructions his mother had given two blank signed cheques bearing No. 184679 and 184675 for the purpose of extension of the time and the complainant has returned his earlier two filled cheques to his mother and as per the instruction of the complainant he has returned the loan amount along with the interest by way of issuing 4 cheques bearing Nos. 948, 949, 946 and 950 by filling amount without mentioning the name of the complainant and the said cheques were presented and encashed in his name for sum of Rs.70,000/, and in the name of his son i.e., Rangantha .C for Rs.40,000/ and in the name of his wife Smt. Savithramma .C for Rs.40,000/ and one cheque presented in the name of Vinutha Enterprises for sum of Rs.50,000/ and even after honoring of the all above four cheques and repayment of the loan amount and he and his mother requested for return of his two blank signed cheques but the complainant informed them that the said cheques were misplaced and same will be returned to her after securing the same, but the complainant instead of returning the same has 16 C.C.No.610/2018 J misused his two blank singed cheques given by his mother which were collected by him for extension of time to repay the loan, by filing this case against him.
It is settled law that, once the issuance of the cheque infavour of holder in due course is admitted by the drawer, presumption can be drawn about the existence of legally recoverable debt U/s.139 of N.I. Act, terms in favour of holder in due course, However the Hon'ble Apex Court of India in Rangappa Vs. Mohan case reported in 2010(11) SCC 441, has held that, "issuance of the cheque would create a presumption with respect to legally enforceable debt in favour of the payee of the cheque", however, the said presumption is rebuttable. In the present case, it has to be examined as to whether the Accused has rebutted the presumption successfully or not by examining oral and documentary evidence adduced by the both parties.
17. In the present case, it is not in dispute by the 17 C.C.No.610/2018 J accused that, the cheque in question belong to the account of the accused and signature found at Ex.P.1(a) is that of the accused. It is also not in dispute that, the cheque in question was presented for encashment within its validity period and the said cheque has been returned as dishonored for want of sufficient fund as per the returned memo issued by the concerned bank i.e., Ex.P.2, hence as on matter on record it is proved by the complainant that, the cheque in question belongs to the account of accused and signature found on the cheque is that of the accused and cheque in question was presented within its validity period.
18. In relation to the service of notice the accused during course of cross examination of the complainant has denied service of notice upon him. The complainant in order to prove the service of notice upon the accused, has produced the documents i.e., copies of legal notice, original returned legal notice, postal cover, post receipt and acknowledgment which are at Ex.P.3 to Ex.P.7 respectively. It appears from the Ex.P.3 that after dishonor of the cheque in question, the complainant 18 C.C.No.610/2018 J got issued legal notice dated: 07.11.2017 through his advocate by RPAD to the residential of the accused. The Ex.P.5 to Ex.P.7 discloses that the Ex.P.3 notice was sent to the accused through RPAD and the said notice was returned to the complainant with an endorsement "Intimation Delivered" i.e., I/D dated 09/11, hence it goes to show that the legal notice issued by the complainant was returned to the complainant with a postal endorsement of intimation delivered. Though the accused has denied the service of legal notice upon him during the course crossexamination of the complainant but has not denied his residential address mentioned by the complainant in the legal notice and on the RPAD cover as the said address is not of his correct residential address and also not produced any documents to disprove the address shown by the complainant in the legal notice and on RPAD cover as the said address is not of his residential address, except bare denial of service of legal notice in the crossexamination of the complainant nothing has been elicited to belive the fact that the legal notice issued by the complainant was not to the correct address of the accused. In addition to the above the 19 C.C.No.610/2018 J accused has not produced any documents to show that as on the date of issuance of legal notice or endorsement issued by the postal authority with regard to service of notice he was not residing in the address shown in legal notice by the complainant. It is relevant here to mention that the accused has not disputed the endorsement given by the concerned postal authority on the Ex.P.5 i.e., RPAD cover, hence it goes to show that the accused has not denied the issuance of legal notice by the complainant through RPAD and return of the said notice to the complainant and even it is not the defence of the accused that the complainant has got created the postal endorsement on Ex.P.5 by colluding with the postal department, in such circumstances it can be held that the legal notice issued by the complainant as per Ex.P.3 through RPAD was sent to the correct address of the accused and the said notice was return to the complainant with and endorsement of intimation delivered as per Ex.P.5, therefore the notice sent by the complainant to the correct address of the accused is presumed to have been served on him as per Sec. 27 of General Clauses Act. In this regard it is relevant to refer that 20 C.C.No.610/2018 J decision reported in 2008(4) Civil code cases 027 (SC) "M/s. Indo Automobiles Vs., M/s. Jai Durga Enterprises and others." wherein the Hon'ble Apex Court held that, "notice sent by registered post with acknowledgement to a correct address service of notice has to be presumed". Therefore in view of the principles of law in the above decision, it can be safely held that, the service of notice on accused in this case is presumed to have been served on him since in this case also the complainant has issued notice to the accused to his correct residential address through registered post hence, the notice issued by he complainant through registered post is held to be proper. In addition to that, it is relevant here to refer the decision reported in 2007 AIR SCW 3578 in the case of C.C.Alvai Haji Vs. Palapetty Muhammed and another., wherein the Hon'ble Apex court held that "the drawer of the cheque is permitted to deposit the cheque amount within 15 days from the date of his appearance before the court in pursuance of the service of summons on him and in such situation, his defence of non service of the legal 21 C.C.No.610/2018 J notice cannot be available to him". Hence, in view of the said principles of law, even for sake of discussion, though there is not cogent and reliable documentary proof to substantiate the claim of the complainant with regard to address of the Accused to show there is due service of the legal notice on the Accused, in view of settled position of law by virtue of the above said decision of Hon'ble Apex Court of India, the Accused is not entitled to the technical defence of the alleged non service of the legal notice. Therefore, the contentions taken by the learned counsel for the accused that, the notice issued by the complainant was not served on the accused and the complainant has not complied the mandatory requirements of Sec.138(b) of N.I.Act and complainant are not maintainable cannot be acceptable and are not sustainable in law.
19. It is also the specific defence of the accused that the complainant has failed to prove his financial capacity as claimed by him in his complaint and evidence and the accused is also denied the loan transaction in question and issuance of the cheque in question towards discharge of loan in question, 22 C.C.No.610/2018 J therefore in view of denial of the transaction in question, the initial burden of the complainant to prove that he has paid an amount of Rs.4 Lakhs to the accused and his fatherinlaw Mr. Subramani towards purchase of new JCB Machine / Equipments as contended by the complainant. As already stated in above that the complainant in his oral evidence has stated that he is engaged in the business of poultry farm and other petty business and has got good source of income besides he has been deriving rental income to the tune of Rs.15,000/ per month, hence he has got sufficient source of income and he has paid an amount of Rs.4 Lakhs by cash as hand loan to the fatherinlaw of the accused i.e., Mr. Subramani in the presence of accused for purchase of new JCB vehicle during the last week of October 2016. It is settled that, if the drawer of the cheque is admitted issuance of the cheque and his signature on the cheque, presumption can be drawn U/s. 118 and 139 of Negotiable Instrument Act, however the Hon'ble Apex Court of India and High Court of Karnataka and other Hon'ble High Courts in catena of decisions held that the presumption available U/s. 118 and 23 C.C.No.610/2018 J 139 of N.I.Act, is rebuttal presumption and accused can rebut the said presumption either by relying the materials produce by the complainant or by producing cogent and convincible evidence on his behalf.
20. It is relevant to hear refer the admit fact of the complainant in his crossexamination. The complainant / PW1 at page No.1 of his cross examination dated: 21.01.2019 admitted as under :
"ನನನ ಮದಲನ ಗರ ಕಲಸ ಮಡನತತದದ ನ, ಕಳದ 12
ವರರಗಳಳದ ಕಕಕಳ ಅಳಗಡ ಹಕಳದದನ. ಈ ಅಳಶವನನ
ನ ಸಬಕತನ
ಪಡಸಲನ ನನನ ದಖಲ ಹಜರನಪಡಸಲಲ. ನನನ ಪಲಲರ ಫರಳ ದ ಇತರ ಸಣಣ ಪಟಲ ವವಪರಗಳನನ ಹಕಳದದನ ದ ನ ಮಡನವದಗ ಬರಸದನ ನನನ ಪ ಪಕರ ಇತರ ಸಣಣ ಪಟಲ ವವಪರಗಳಳದರ ಗರ ಕಲಸ ಎಳದನ ಅರರ..........................................................................
................................................................... ನನನ
ವರರಕ ವರಮನವನನ
ನ ಸಬಕತನ ಪಡಸನವ ದಖಲ ಕಕಟಲಲಲ
ಎನನ
ನ ವದನ ನಜ. ನಮಮ ಕನಟನಳಬದಲ ನನನ ಮತ ತ ದನಡಯನತತದನ ಎನನ ನ ವದನ ನಜ. ನನನ ಮಗ ಓದನತತದನ. ನನಗ ಎಲ ಲ ಮಕಲಗಳಳದ ಮಸಕ ರಕ.40,000/ ರನರಗಳ ಆದಯ ಇದ. ಈ ಅಳಶವನನ ನ ಸಬಕತನಪಡಸಲನ ನನನ ಯವದಕ ದಖಲ ಹಜರನಪಡಸಲಲ."
The complainant / PW1 at page No.2 at para 24 C.C.No.610/2018 J no.2 and 3 of his crossexamination admitted as under :
"ನನನ ಆರಕಕಪಯ ಮವ ಸನಬಪಮಣಗ ಯವದಕ ಸಲವನನ ನ ಕಕಟಲಲಲ. ಆರಕಕಪ ತನನ ಮವನ ಜಸಬ ವವವಹರಕಕ ಓಡಡನವದಲಲ ಎನನ ನ ವದನ ಸರಯಲಲ. ನನನ ಪ ಪಕರ ಹಣದ ದ ಅವಶವಕತಯದದನ ಆರಕಕಪಯ ಮವನಗ ಸನಬಪಮಣಗ ಎನನ ನ ವದನ ನಜ......................................... ಆರಕಕಪಯ ಮವ ಸನಬಪಮಣಗ ನನನ ಆರಕಕಪಯ ಸಮನ ಮ ಖದಲ ರಕ.4 ಲಕ ರಕಗಳನನ ನ ಕಕಟಲರನವದಗ ಹಕಳನತತದದ ನ ಆ ಸಳಧರರದಲ ನನನ ನ ಪಡದನಕಕಳಡಲಲ. ಆ ಸನಬಪಮಣಯವರಳದ ಯವದಕ ದಖಲಗಳನನ ಲ ಹಣ ಇತನತ ಹಕಳನವ ಸಳಬಳಧ ನನನ ಸಳಧರರದಲ ನನನ ಬಳ ಸಕರನ ಯವದಕ ದಖಲ ಹಜರನಪಡಸಲಲ. ನನನ ಸಲ ಕಕಡಲನ 2 ವರಗಳ ಕಲವಕಶವನನ ನ ಪಡದನಕಕಳಡದ ಎನನ ನ ವದನ ನಜ. ನನನ ಬಕರ ಯವದಕ ವವಕತಯಳದ ಹಣ ತಳದನ ಅದರಳದ ಸಲ ಕಕಟಲಲಲ. ನಮಮ ಬಳ ಅಷಕಲಳದನ ಹಣ ಇದದದ ಪಕದಲ ಹಣ ಕಕಡನವ ಸಳಧರರದಲ ಹಣ ಳ ವ ಅವಶವಕತ ಇರಲಲಲ?
ಕಕಡಲನ 2 ವರಗಳ ಕಲವಕಶ ಪಡದನಕಕಳನ ಎಳದರ ಸಕಯನ ನನನ ಬಕರಯವರಳದ ನನನ ಕಕಟಲದಳತಹ ಹಣಗಳನನ ಸ ಪಡದನಕಕಳಡನ ಅದರಳದ ಹಣ ಕಕಡಲನ ನನಗ ನ ವಪಸನ ಸಮಯದ ಅವಶವಕತ ಇತನತ ಎಳದನ ನನಡಯನತತರ. ನನನ ಮದಲನ ಯರಗ ಸಲ ಕಕಟಲದದ ನ ಹಗಕ ಯರಳದ ಅದನನ ನ ಸ ವಪಸನ ಪಡದನಕಕಳಡನ ಅದರಳದ ಸಲ ಕಕಟಲದನನ ಎನನ ನ ವದನನ ನ ಹಕಳಲನ ಇಚಚ,ಸನವದಲಲ. ಆರಕಕಪಯ ಮವ ಸನಬಪಮಣ ನನನಳದ ಹಣ ಕಕಳದ ಸಳಧರರದಲ ನನನ ಬಳ ಹಣ ಇಲಲ ಎಳದನ ಆತನಗ ಹಕಳದ ಎನನ ನ ವದನ 25 C.C.No.610/2018 J ನಜ."
The complainant / PW1 at page No.3 and 4 at para no.3 and 4 of his crossexamination admitted as under :
"ಆರಕಕಪಯ ಮವ ಜಸಬ ಖರಕದಸಲನ ನನನಳದ ಹಣ ಕಕಳದದರನ ಎಳದನ ನನನ ಹಕಳನತತದದ ನ ನನನ ಸದರ ಜಸಬ ಕನರತನ ದಖಲಗಳನನ ನ ನಕಕಡಲಲ...................................................................... ................................................................ ನಕವ ಸನಬಪಮಣ ರವರಗ ಹಣ ಕಕಟಲದರ ? ಎಳದರ ಸಕಯನ ಆರಕಕಪಗ ನನನ ಹಣ ಕಕಟಲದದ ನ ಆತನ ಮಕಲಕ ಆತನಗ ಮವನಗ ಹಣ ಕಕಟಲದನ ಎಳದನ ನನಡಯನತತರ. ಆರಕಕಪ ಜಸಬ ಬನ ವ ಸನಸ ಮಡನವದಲಲ ಎನನ ನ ವದನ ನಜ.
The complainant / PW1 at page No.5 of his crossexamination admitted as under :
"ಆರಕಕಪಯ ಮವನಗ ನನನ ಹಣ ಕಕಟಲದನಳದನ ಹಕಳಲದ ಸಳದರರದಲ ಆರಕಕಪಯಳದ ನನನ ಯವದಕ ದಖಲ ಪಡದನಕಕಳಡಲಲ. ನನನ ಹಣ ಕಕಟಲದನಳದನ ಹಕಳಲದ ನದರರಲವದ ತರಕಖನ ಹಕಳಲನ ಸಧವವಲಲ.
21. On careful consideration of the above admission of the complainant makes it clear that, though the complainant in his complaint and evidence stated that he is engaged in business of poultry farm and 26 C.C.No.610/2018 J other petty business and having rental income Rs.15,000/ per month and due to the said source of income he had substantial saving to his credit, but as per his own admission on his crossexamination he has not produced any documents either to show that he is running poultry farm and other petty business or having rental income as claimed by him. If really the complainant is having sufficient source of income as contended by him from his poultry farm and other petty business, definitely he would have produced the documents to that effect and even has not produced his bank statement to prove his financial capacity. The complainant in his cross examination at one breath stated that earlier he was doing construction work i.e., (Gare Work) and poultry farm business but now since 12 years he is having Chicken Shop and has not produced the documents to show that he was / is running the said business, but another breath stated that as on the date of request made by the fatherinlaw of the accused for advancing the loan amount he was not having sufficient funds and requested 2 weeks time to lend the loan amount and he had collected the amount from some other persons to whom he has 27 C.C.No.610/2018 J lend the loan amount and after collecting the said amount out of the said amount he has lend the loan amount in question to the fatherinlaw of the accused and he is not able to say the name of those persons. Hence it goes to show that the complainant is not specific about his source of income as one breath the complainant in his evidence and complaint stated that out of his income derived from business of poultry farm and other petty business and rental income he has lent the loan amount in question but another breath has stated that he had collected the amount from some other persons to whom he had lend the amount and after collecting the said amount he has advance the loan amount in question, therefore the inconsistent statement of the complainant itself creates a serious doubts with regard financial capacity of the complainant. It really the complainant is having source of income as stated in complaint and his evidence, definitely he would have stated the same fact in his crossexamination.
22. In addition to the above complainant in his complaint and evidence stated that the accused and his fatherinlaw approached him during the second 28 C.C.No.610/2018 J week of October 2016 and have requested him to help and lend hand loan of Rs.4 Lakhs to Mr. Subramani to purchase new JCB Machine / Equipments, accordingly during last week of October 2016 he had paid a hand loan of Rs.4 Lakhs to Mr. Subramani by cash in the presence of the accused and at that time they assured to repay the said amount on or before 31st March 2017. Hence on careful reading of the complaint and evidence of the complainant according to him the accused and his fatherinlaw viz., Subramani approached him and requested to lend loan of Rs.4 Lakhs to Mr. Subramani for purchase of new JCB Machine as the fatherinlaw of the accused engaged in hiring out or letting out the JCB Machines, Equipments on hire/rental basis and carrying on the said business, accordingly he has lend the Rs.4 Lakhs to the father inlaw of the accused, but whereas the complainant in his crossexamination has categorically admitted that he has not lend any loan amount to the Subramani i.e., the fatherinlaw of the accused and even has not taken any documents from the said Subramani or from the accused for having lend the alleged loan amount of Rs.4 Lakhs and also admitted 29 C.C.No.610/2018 J that he has not verified the documents with regard to alleged JCB business of the Subramani and also admitted that he has given the loan amount to the accused through his fatherinlaw Mr. Subramani and accused is not carrying JCB business, hence the admissions of the complainant itself goes to show that he has categorically admitted that he has not lend the loan amount to the fatherinlaw of the accused, therefore the said admission itself negativates or nullifies the very claim made by the complainant in his complain and his evidence that he has lent an amount of Rs.4 Lakhs to the father inlaw of the accused i.e., Mr. Subramani for the purpose of purchasing the JCB Machine / Equipments. If really the complainant has lent Rs.4 Lakhs to the fatherinlaw of the accused in presence of the accused as hand loan for purchase of the JCB Machine / Equipments, at least he would have collected the documents either from the fatherin law of the accused or if the alleged loan amount lent to the accused through his fatherinlaw, the complainant would have collected documents from the accused for having lending huge amount of Rs.4 Lakhs but the complainant has clearly admitted that 30 C.C.No.610/2018 J has not collected any documents from the fatherin law of the accused or from the accused, that itself creates a doubt with regard to alleged lending of huge loan amount of Rs.4 Lakhs as generally an ordinary prudent man ought to suppose that, no person can lend money without insisting a document from the person, while lending of huge loan amount, in such circumstances the alleged lending of huge amount of Rs.4 Lakhs by the complainant as hand loan either to the fatherinlaw of the accused or accused without collecting any documents creates a serious doubts with regard to lending of loan amount in question. In addition to that if really the complainant has lent the alleged loan of Rs.4 Lakhs to the accused through his fatherinlaw then the complainant could have stated this fact either in his legal notice or in the complaint or in his evidence but nothing has been stated by the complainant for the first time in his crossexamination has disclosed that he has lent the alleged loan of Rs.4 Lakhs to the accused through his fatherinlaw, therefore the in consistent statement of the complainant creates a doubt with regard to lending of alleged loan amount to the fatherinlaw of the accused as claimed by 31 C.C.No.610/2018 J him. It is also relevant to mention that, the complainant in his crossexamination at one stretch admitted that he has not lend any loan amount to the fatherinlaw of the accused i.e., Mr. Subramani and has lent the loan of Rs.4 Lakhs to the accused through his fatherinlaw i.e., Mr. Subramani and another stretch admitted that the loan amount is required to the fatherinlaw of the accused i.e., Mr. Subramani , hence it goes to show that if really the fatherinlaw of the accused was in need of loan amount and has requested to lend the loan amount to the complainant, in such circumstances the question of lending of the alleged loan of amount of Rs.4 Lakhs to the accused doest not arise at all , therefore the admission of the complainant itself creates a doubt as to who have approached the complainant i.e., whether the accused or his father inlaw have approached and requested to lend the loan amount as claimed by the complainant, therefore on the basis of inconsistent versions of the complainant it can be held that the complainant has miserable failed to prove that the accused and his fatherinlaw have approached to him and the fatherinlaw has requested to lend loan amount of 32 C.C.No.610/2018 J Rs.4 Lakhs for purchase of new JCB Machine / Equipments.
23. It is also relevant to mention that the accused has examined his fatherinlaw i.e., Mr. Subramani as DW3 on his behalf. The said Mr.Subramani i.e., DW3 in his evidence has clearly stated that himself and complainant are neighbors and he is not doing any chit fund business or owner of JCB Equipments and he did not approached the complainant to purchase JCB machine or equipments during the year 2016 and did not required any hand loan amount of Rs.4 Lakhs and did not received any amount from the complainant during the year 2016 and did not promised the repay the said amount on or before 31.03.2017. The DW3 has also stated the complainant has created false story to purchase the JCB equipments and other machinery for that he and accused approached him seeking hand loan from him. The learned counsel for the complainant has crossexamined the DW3 in length but nothing has been elicited from him to discard or discredit the evidence of DW3. The DW3 has denied the suggestion made to him that he and the accused 33 C.C.No.610/2018 J have approached the complainant seeking financial help for purchase of JCB equipments and the complainant has lent a loan of Rs.4 Lakhs to the accused during the year 2016 at that time the complainant had collected two cheques from the accused towards the security of loan amount. It is true that the DW3 has admitted in his cross examination that he does not know the contents of the affidavit, but only on that ground the entire evidence of the DW3 cannot be discarded. It is relevant here to mention that it is an admitted fact by the complainant that the DW3 i.e., Subramani is the fatherinlaw of the accused and as per averments of complaint the complainant and DW3 are good friends and having cordial relationship among them as they being villagers of Gubbalal Village since 20 years, in such circumstances the evidence of DW3 cannot be discarded easily unless it is elicited that there were some animosity between the complainant and DW3, admittedly nothing has been elicited in the crossexamination of DW3 with regard to animosity or the DW3 having animosity against the complainant and on the basis of said animosity the DW3 appeared before the court and 34 C.C.No.610/2018 J deposed falsely against the complainant, therefore mere the DW3 is relative of the accused i.e., father inlaw of the accused only on that ground the evidence of the DW3 cannot be discarded. On entire perusal of the crossexamination of the DW3 nothing has been elicited either there is enmity between the complainant and DW3 or any other circumstances which warrants to discard or disbelieve the evidence of DW3, therefore the evidence of DW3 is sufficient hold that he and accused have not approached the complainant and requested hand loan of Rs.4 Lakhs for purchase the JCB machine or equipments during year 2016 and the complainant has paid Rs.4 Lakhs to the DW3 i.e., Subramani fatherinlaw of the accused and the accused and DW3 have promised to repay the loan on or before 31.03.2017. Apart from the above it is important to here mention that, the complainant during the course of crossexamination of the DW3 has entirely changed his version in respect lending of the loan amount in question i.e., the complainant in his legal notice, complaint and evidence has specifically claimed that he has lent a loan amount of Rs.4 Lakhs to the fatherinlaw of the accused i.e., DW3 for purchase of new JCB 35 C.C.No.610/2018 J Machine / Equipments in the presence of the accused, but whereas in the crossexamination of DW3 has suggested that the complainant has lent the loan amount of Rs.4 Lakhs to the accused for the purchase of JCB and at that time the complainant has collected two cheques from the accused towards the security of loan amount, therefore the very suggestion made to the DW3 itself negativates the claim of the complainant that he has lent alleged amount of Rs.4 Lakhs to the fatherinlaw of the accused as claimed in the complaint.
24. Therefore from careful perusal of the entire oral and documentary evidence of the complainant and admitted facts by the complainant during the course of his crossexamination makes it clear that, the complainant has miserably fails to establish that he was having sufficient source of income to lent the alleged loan amount of Rs.4 lakhs and the accused and his fatherinlaw have approached him during the year 2016 seeking financial help i.e., hand loan of Rs.4 Lakhs for the purpose of purchasing new JCB Maching / Equipments and the complainant has paid alleged loan of Rs.4 Lakhs to the fatherin 36 C.C.No.610/2018 J law of the accused, as claimed by the complainant in his complaint and his evidence.
25. It is settled law that,the accused in a proceedings u/s.138 of NI Act has two options i.e., the accused can either show that, consideration and debt did not exist or that, under particular circumstances of the case the non existance of consideration and debt is so probable that , a prudent man ought to suppose that, no consideration and debt existed and in order to rebut the statutory presumption, accused is not expected to prove his defence beyond reasonable doubt as expected of the complainant in criminal trial and the accused may adduce direct evidence to prove that the cheque in question was not supported by consideration and there was no debt or liability to be discharged by him and the court need not insist in every case that, the accused should disprove the non existence of consideration that, by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. In this regard it is relevant here refer the decision of Hon'ble Apex Court of India reported in "LAWS (SC) 2019882 in 37 C.C.No.610/2018 J a case of SRI.DHANESHWARI TRADERS VS. SANJAY JAIN" and in anther decision reported in (2020) 12 SCC 500 wherein the Hon'ble Apex Court held that "It is well settled that, rebuttal can be made with reference to the evidence of prosecution as well as of defence" and in another decesion reported in (2010) 11 SCC 441 in the case of RANGAPPA VS. SRI.MOHAN wherein it is held that "ordinarily in cheque bounce cases, what the courts have considered is whether the ingredients of the offence enumerated in Sec.138 of Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Sec.139 of the Act and also held that "It is settled position that, when an accused has to rebut the presumption u/s.139, the Standard of proof for doing so is that of preponderance of probabilities". Hence, in view of the principles of law laid down in the above referred decisions, the accused in order to rebut the statutory presumption is not expected to prove his defence beyond all reasonable doubt and the 38 C.C.No.610/2018 J accused may adduce direct evidence to prove his defence or rebuttal can be made with reference to the evidence of the prosecution and standard of proof for rebuttal of presumption is that of preponderance of probabilities i.e., something which is probable has to be brought on record by the accused. By keeping these principles of law in the mind now let us examine the oral and documentary evidence adduced by the accused as to whether the accused has successfully rebutted the statutory presumptions as against the complainant.
26. The accused in order to rebut the presumption has himself examined as DW.1. The accused / DW1 in his evidence stated that, his mother by name Smt. Marakka has approached the complainant on 01.06.2019 seeking hand loan of Rs.1,50,000/ for his marriage purpose without his knowledge and the complainant has paid the said amount to his mother and his mother promised to repay the said amount within six months and on the same day the complainant has collected 2 filled cheques of him bearing Nos. 184678 and 184677 for Rs.75,000/ each both are drawn on Indus Ind Bank, Branch 39 C.C.No.610/2018 J Kormanagala, Bangaluru and he has also paid interest of Rs.7,500/ per month regularly through his mother to the Complainant. The accused / DW1 has also stated that, after expiry of six moths the complainant has approached to his mother for repayment of the loan amount at that time his mother requested to extend the time to repay the loan amount and the complainant has returned the 2 filled cheques and requested to give blank signed cheques for the purpose of extension of time, as per the instruction of complainant he issued two blank cheques bearing No.184679 and 184675 for the purpose of extension of time and also issued 4 cheques bearing Nos. 948, 949, 946 and 950 all the cheques were drawn on ICICI Bank, Maruthinagar, Bengaluru by filling the amount including the interest without mentioning the name of the complainant and handed over to complainant. The accused / DW.1 furthere deposed that, the complainant has presented the cheques in his nmae for sum of Rs.70,000/ and two cheques for Rs.40,000/ each in the name of his son Ranganatha and his wife Smt. Savithrammma and one cheque for Rs.50,000/ dated: 12.07.2017 in the 40 C.C.No.610/2018 J name of Vinutha Enterprises and all the cheques were cleared, thereafter repayment of loan amount he and his mother were approached the complainant to collect the two blank cheques but the complainant informed them that, the said cheques were misplaced in his house and some would be returned after securing the cheques and also promised that the cheques will not be misused but without his knowledge the complainant has presented the two cheques and has created false story and has filed this false case.
27. In support of oral evidence the accused has produced two original cheques bearing Nos. 184678 and 184677 are at Ex.D.1 and Ex.D.2, copy of Bank Statements pertaining to his account is at Ex.D.3 and D.4 and Marriage Invitation card is at Ex.D.5.
28. The accused has also examined his mother Smt. Marakka as DW.2. The DW.2 in her evidence has also supported the accused that, she has approached the complainant on 01.06.2015 seeking hand loan of Rs.1,50,000/ and on 09.06.2015 the complainant has paid Rs.1,50,000/ and she 41 C.C.No.610/2018 J promised to repay the loan amount within six months and on that day the complainant has collected 2 filled cheques bearing Nos. 184678 and 184677 for Rs.75,000/ each both are drawn on Indus Ind Bank, Branch Kormanagala, Bangaluru for security purpose and her son i.e., accused has also paid interest of Rs.7,500/ per month regularly through her to the Complainant. The DW.2 has also stated that, after expiry of six moths the complainant has approached to her for repayment of the loan amount at that time she has requested to extend the time to repay the loan amount and the complainant has returned the 2 filled cheques and requested to give blank signed cheques for the purpose of extension of time, as per the instruction of complainant accused has issued two blank signed cheques bearing No.184679 and 184675 for the purpose of extension of time and also issued 4 cheques bearing Nos. 948, 949, 946 and 950 by filling the amount including the interest without mentioning the name of the complainant and handed over to complainant. The accused / DW.1 further deposed that, the complainant has presented the cheques in his name for sum of Rs.70,000/ and 42 C.C.No.610/2018 J two cheques for Rs.40,000/ each in the name of his son Ranganatha and his wife Smt. Savithrammma and one cheque for Rs.50,000/ dated: 12.07.2017 in the name of Vinutha Enterprises and all the cheques were cleared, thereafter she and her son i.e., accused were approached the complainant to collect the two blank cheques but the complainant informed them that, the said cheques were misplaced in his house and same would be returned after securing the said cheques and also promised that the cheques will not be misused but without knowledge of the accused the complainant has presented the two cheques and has created false story and has filed this false case against her son.
29. The accused has also examined his fatherinlaw i.e., Subramani as DW.3. The DW.3 in his evidence has also stated that his sister i.e., DW.2 approached the complainant on 01.06.2016 for seeking hand loan for the purpose of marriage and she had cleared entire amount through several cheques and there is no due by his sister.
30. On careful perusal of the oral and documentary 43 C.C.No.610/2018 J evidence of the DW.1 to DW.3 it appears that as per the defence of the accused, the mother of the accused i.e., Smt. Marakka had approached the complainant on 01.06.2015 and requested the complainant to advance hand loan of Rs. 1,50,000/ for the purpose of marriage of her son i.e., accused herein, accordingly the complainant lend the said amount of Rs.1,50,000/ to her on 09.06.2015 and she had agreed to repay the said amount within six months and complainant had also collected two filled cheques bearing Nos. 184678 and 184677 for Rs.75,000/ each both cheques were drawn on Indus Ind Bank, Koramangala, Bengaluru towards security of the said loan amount and accused has also paid interest at rate of 5% per month regularly to the complainant and after expiry of six months the complainant approached the mother of the accused and requested for repayment of the loan amount but at that time the mother of the accused requested for extension of time to repay the loan amount for that the complainant demanded blank signed cheques for the purpose of extension of the time, accordingly the accused had given two blank signed cheques bearing Nos. 184679 i.e., Ex.P.1 in 44 C.C.No.610/2018 J this case and 184675 for the purpose of extension of the time and the complainant handed over the two filled cheques which were given to him and as per the instruction of the complainant the accused has also issued 4 cheques bearing Nos. 948, 949, 946 and 950 by filling the amounts without mentioning name of the complainant and handed over the said cheques to the complainant and thereafter as per the instructions of the accused the complainant was presented the above said 4 cheques in his name for sum of Rs.70,000/ and two cheques in the name of his son i.e., Ranganatha .C and his wife i.e., Savithramma .C for Rs.40,000/ each and one cheque was presented in the name of Vinutha Enterprises for Rs.50,000/ and all the cheques were cleared and thereafter the accused and her mother approached the complainant and requested to for return of two blank singed cheques which were given to him but the complainant assured them that the cheques were misplace and same would be handedover to them after securing the cheques, but instead of returning the cheques to them and without their knowledge the complainant has presented the said cheques for clearance and has 45 C.C.No.610/2018 J filed false case against the accused.
31. It is relevant to mention that the accused has produced two original canceled cheques bearing Nos.184678 and 184677 dated: 11.09.2015 for sum of Rs.75,000/ each both are drawn on Indus Ind Bank, Jakkasandra Branch, Bengaluru which are Ex.D.1 and D.2. The complainant during the course of crossexamination of the accused has denied the defence of the accused that Ex.D1 and D2 were not given to the complainant and same were return to the accused by taking blank signed cheques from the accused. The accused has also produced copies of his bank account statement pertaining to ICICI Bank which are at Ex.D.3 and D.4. The perusal of the the accused D.4 it appears that the cheque bearing No.948 for sum of Rs.40,000/ was presented and encashed in the name of Ranganatha .C and cheque bearing no.949 for sum of Rs.40,000/ was presented and encashed in the name of Savithramma .C and cheque bearing no. 946 for sum of Rs.70,000/ was presented and encashed in the name of Chikkanna i.e., complainant herein and cheque bearing no. 950 for 46 C.C.No.610/2018 J sum of Rs.50,000/ was presented and encashed in the name of Vinutha Enterprises. It is also relevant to refer the admission of the complainant during the course of his crossexamination i.e., the complainant at page no.14 of his crossexamination dated:
27.04.2019 has admitted as under ;
"ಆರಕಕಪಯ ಚಕ ಸಳಖವಖ 000946 ಚಕ 70,000/ ರನರಗಳಗ ನ ವದನ ನಜ. ರಳಗನಥ .ಸ ನನನ ಹಸರನಲ ನಗದಕಕರಣವಗದ ಎನನ ನ ವದನ ನಜ. ನನನ ಮಗ ರಳಗನಥ .ಸ ಹಸರನಲ ನನನ ಮಗ ಎನನ ಆರಕಕಪಯ ಖತಯ ಚಕ ಸಳಖವಖ 000948 ಚಕ 40,000/ ರನರಗಳಗ ನಗದಕಕರಣವಗದ ಎನನ ನ ವದನ ನಜ. ನನನ ಮಗ ರಳಗನಥ .ಸ ಹಗಕ ಆರಕಕಪಯ ನಡನವ ಯವದಕ ವವ ವಹರ ನಡದಲಲ ಎನನ ನ ವದನ ನಜ. ಸವತ ತಮ ನ ವದನ ನಜ .
ಮ ನನನ ಹಳಡತ ಎನನ ಆಕಯ ಹಸರನಲಯಕ ಆರಕಕಪಯ ಚಕ ಸಳಖವಖ 000949 ಚಕ 40,000/ ರಕಗಳಗ ನಗದಕಕರಣವಗದ ಎನನ ನ ವದನ ನಜ. ನನನ ಹಳಡತ ಹಗಕ ಆರಕಕಪಯ ನಡನವ ಹಣಕಸನ ಇರಲಲಲ ಎನನ ನ ವದನ ನಜ.
3. ನನನ ವನನತ ಎಳಟರ ಪಪಪಸಸ ಸಳಸದ ಯಳದ 50,000/ ನ ವ ಬಗಗ ನನಗ ಗಕತತಲಲ .
ರಕಗಳ ಸಲ ಪಡದನಕಕಳಡದನ ಎನನ ನನನ ಆರಕಕಪಯ ಚಕ ಸಳಖವಖ 000950 ಚಕಕ ನನ ನ 50,000/ ನ ವದನ ಸರಯಲಲ ."
ರಕಗಳಗ ನಗದಕಕರಣಪಡಸಕಕಳಡದನ ಎನನ Hence the above admissions of the complainant makes it clear that the complainant has categorically 47 C.C.No.610/2018 J and unequivocally admitted that he has received the cheque bearing no. 946 for sum of Rs.70,000/, cheque bearing no. 948 and cheque bearing no. 949 for sum of Rs.40,000/ each from the accused and has presented and encashed cheque bearing no. 946 for sum of Rs.70,000/ in his name and cheques bearing nos. 948 and 949 for sum of Rs.40,000/ each presented and encashed in the name of his i.e., Rangangatha .C and his wife Smt. Savithramma .C and it also admitted there were no loan or financial transaction between the accused and his wife and son. Though the complainant has denied the encashment of cheque bearing no.950 for sum of Rs.50,000/ in the name of Vinutha Enterprises but has not denied the suggestion made to him that he had borrowed a loan of Rs.50,000/ from Vinutha Enterprises, in such circumstances it can be held that the complainant has clearly admitted the defence of the accused that, the accused has issued 4 cheques bearing no.948, 949, 946 and 950 by filling the amounts without mentioning the name of the complainant and as per his instruction the complainant was presented the above said cheques in the name of his son i.e., Ranganatha .C and his 48 C.C.No.610/2018 J wife Smt. Savithramma .C and in his name for sum of Rs.40,000/, Rs.40,000/ and Rs.70,000/ respectively and another cheque was presented and encashed in the name of Vinutha Enterprises dated:
12.07.2017 for sum of Rs.50,000/ and all the cheques were encashed.
32. It is also important to refer the admission of the complainant in his crossexamination dated:
27.04.2015 i.e., in page no.13 to 16, the complainant had given answer to the suggestion made to him as under:
"ಪ ಪ ಖ ನಕವ ಆರಕಕಪಯ ತಯಗ ಒಳದಕವರ ಲಕ ರಕಗಳ ಸಲ ಕಕಡನವಗ ಆರಕಕಪಯ ಎರಡನ ಚಕನ ಕ ಗಳನನ ನ ತಲ 75,000 ರಕಗಳಗ ಪಡದನಕಕಳಡದರ ?
ಉಖ ಆರಕಕಪಯ ಮವ ಚಕಟ ನಡಸನತತದದ ನ ನನನ ಅದಕಕ ದ , ಆರಕಕಪ ತನನ ಮವನ ಚಕಟಯ ಸಳಬಳದ, ನನಗ ಸದಸವ ನಗದನ ತಲ 75,000 ರಕಗಳ ಎರಡನ ಚಕನ ನ ಕಕಟಲದದ ರನ.
ಕ ಗಳನನ ನನನ ತಲ 1 ಲಕದ ಎರಡನ ಚಕಟಗಳನನ ದ ಅದನ ಯವ ನ ಹಕದನ ನ ವದನ ನನಗ ನನಪಲಲಲ . ಸದರ ಚಕಟಗ ತಲ 20 ವರರದಲ ಎನನ ಜನ ಸದಸವ ರನ ಇದದ ರನ. ಸದರ ಚಕಟ ಯವಗ ಪಪ ರ ಳರಗಕಳಡನ ಯವಗ ಅಳತಮಗಕಳಡವ ನನಗ ಗಕತತಲಲ . At page No.15 49 C.C.No.610/2018 J ಪ ಪ ಖ ನಕವ ಆರಕಕಪಯಳದ ಒಳದಕವರ ಲಕ ರಕಗಳನನ ನ ಚಕನ ಕ ಗಳ ಮಕಲಕ ಪಡದನಕಕಳಡದರ ?
ಆರಕಕಪ 70,000 ರಕಗಳನನ ನ ನನನ ಹಸರನಲ ತಲ 40,000 ರಕಗಳನನ ನ ನನನ ಮಗ ಹಗಕ ನನನ ಹಳಡತಯ ಹಸರನಲ ಚಕನ ಕ ಗಳ ದ ಮಕಲಕ ಪವತಸದನ ಸದರ ಒಳದಕವರ ಲಕ ರಕಗಳನ ನನನ ಆತನ ಮವನ ಹಕದದ ಚಕಟ ವವ ವಹರದ ಸಳಬಳಧ ಮಡಲನ ಸಳದಯವಗರನತತದ .
5. ನನನ ಆರಕಕಪಯ ಮವನ ಬಳ ಚಕಟ ಹಕದ ಎಳದನ ದ ಹಕಳನವ ಚಕಟ ವವ ವಹರದಲ ನನನ ಸನ ಕಹತರನ ಸಹ ಸದಸವ ರಗದನ ಅವರ ಹಸರನಗಳನ ಪಚಪಪ , ರಜನ, ಮಕತರ, ಧಮರ ಇರನತತರ . ಅವರಲಲ ರಕ ನಮಮ ಸಸ ಳಕಯ ವವ ಕತಗ ಳಗರನತತರ ."
Hence the above admissions of the complainant makes it clear that the complainant has has not denied the suggestion that he has received two cheques for Rs.75,000/each of the accused through his mother at the time of lending of loan amount of Rs.1,50,000/ and also not denied the suggestion that he has received Rs.1,50,000/ from the accused through the 4 cheques, but instead of denying the said suggestions has stated that he was the member of chit transaction conducted by the fatherinlaw of the accused and in connection with said chit transaction has received two cheques for 50 C.C.No.610/2018 J Rs.75,000/ each from the accused and also received Rs.1,50,000/ i.e., Rs.70,000/ in his name and Rs.40,000/ each in the name of his son and wife through the cheques in respect of chit transaction, but the complainant has not produced any documents to show that the fatherinlaw of the accused was conducting the chit transaction and he was subscriber of two chits and in connection with the said chit transaction the accused has issued two cheques for Rs.75,000/each and has paid Rs.1,50,000/ through the cheques, therefore the in the absence of document only and basis of oral say the complainant it cannot be held that the complainant has received the two cheques for Rs.75,000/ each from the accused and has received Rs.1,50,000/ from the accused through the cheques in his name and also in the names of his son and wife in connection of alleged chit transaction on the contrary an adverse inference can be drawn against the complainant that he has admitted that at the time lending of loan amount of Rs.1,50,000/ to the mother of the accused had collected two filled cheques for Rs.75,000/ each of the accused through his mother and thereafter the 51 C.C.No.610/2018 J complainant has received an amount of Rs.1,50,000/ from the accused by way of cheques i.e., one cheque of Rs.70,000/ in his name and two cheques for Rs.40,000/ each in the name of his son and his wife, the admission of the complainant corrobarates the defence of the accused that the accused has repaid the loan amount of Rs.1,50,000/ to the complainant along with interest through the cheques.
33. It is also important here to mention that if really the fatherinlaw of the complainant was conducting the chit business and complainant was the subscriber of the chits and the cheques which were issued by the accused towards payment of Rs.1,50,000/ pertains to the chit transaction, in such circumstances the complainant would have produce the document to show that the fatherinlaw of the accused was conducting the chit business and even during the course of crossexamination of the fatherinlaw of the accused i.e., DW.3 the complainant has not suggested single suggestion stating that fatherinlaw of the accused was conducting the chit business and complainant was 52 C.C.No.610/2018 J chit subscriber and the cheques which were issued by the accused and encashed by him were in connection with the chit transaction but no such suggestions were made even the fatherinlaw of the accused even though he was examined after the crossexamination of the accused. Apart from that as per the admission of the complainant he and his friends by name Pachappa, Raju, Murthy, Dharma were also subscribers to the said chit transaction, if such being fact the complainant could have proved the alleged chit transaction conducted by the father inlaw of the accused at least by examining one of his friends i.e., alleged subscribers to the chit transaction as claimed by the complainant but, the complainant has not made any efforts to examine any of his friends for his unrevealed reasons and the complainant himself admitted that he does not know when the chit transaction commenced and ended, in such circumstances it can be held that the complainant in order to avoid admitting real truth and the defence of the accused, has stated that the cheques received and enacashed by him, from the accused are not pertains to the repayment of the loan amount of Rs.1,50,000/ borrowed by the 53 C.C.No.610/2018 J mother of the accused. It is also relevant here to mention the when the complainant has denied the receipt repayment of Rs.1,50,000/ from the accused by contending that the amount paid by the accused through the cheques is pertains to the alleged chit transaction said to have been conducted by the fatherinlaw of the accused, to that extent the burden shifted on the complainant therefor unless and until the complainant has discharged the said burden it can be presumed that whatever the amount received from the accused by way of cheques pertains to the repayment of the loan amount of Rs.1,50,000/ borrowed by the mother of the accused as stated by the accused in his defence. Admittedly the complainant has not produced any documents or proof to show that the amount of Rs.1,50,000/ received by him through cheques and an amount of Rs.50,000/ was encashed by Vinutha Enterprises through the complainant pertains to the chit transaction which is allegedly conducted by the fatherinlaw of the accused.
34. It is also important here to mention that the learned counsel for the complainant has cross 54 C.C.No.610/2018 J examined the DW.1 to DW.3 but nothing has been elicited to believe his claim that the accused and his fatherinlaw have approached him during the second week October 2016 and have sought financial help of Rs.4 Lakhs for purchase of new JCB Machine / Equipments, accordingly the complainant has paid Rs.4 Lakhs to the fatherinlaw of the accused and inturn the accused has issued two post dated cheques for Rs.2 Lakhs each i.e., Ex,P.1 cheque for Rs.2 Lakhs and another Cheque bearing no. 184675 for Rs.2 Lakhs towards discharge of the said loan amount. It is also the defence of the accused in that his mother has borrowed a loan of Rs.1,50,000/ from the complainant for his marriage purpose on 09.06.2015 and at that time the complainant had collected his two cheques for Rs.75,000/ each as security to the said loan amount and thereafter the complainant approached his mother and requested to repay the loan amount at that time the mother of the accused requested for extension of time, the complainant requested to give blank signed cheques for extension of the time by returning the two filled the cheques of the accused accordingly the accused issued two blank signed 55 C.C.No.610/2018 J cheques i.e., Ex.P.1 and another cheque bearing 184675 for the purpose of extension of time and thereafter the accused issued 4 cheques towards repayment of the loan amount Rs.1,50,000/ including in the interest and the said cheques were presented and encashed by the complainant and even after repayment of the loan amount the complainant did not return his two signed blank cheques but has presented without his knowledge and has filed this false case. The accused has also produced marriage invitation card which is at Ex.D.5 and wherein it is seen that the marriage of the accused was performed on 10.06.2015, though the complainant has denied the Ex.D.5 but the complainant during the course of this cross examination has admitted that the marriage of the accused was performed on 10.06.2015 and he was also attended to the said marriage along with his family members and also not denied the suggestion that he has received two cheques for Rs.75,000/ each at the time of lending of loan amount of Rs,1,50,000/ to the mother of the accused, hence it goes to show that admittedly the marriage of the accused was performed during the year 2015 and 56 C.C.No.610/2018 J there may by every chances of availing the loan of Rs.1,50,000/ by the mother of the accused from the complainant for the purpose of marriage of the accused, therefore the admission of the complainant corroborates the defence of the accused i.e., the circumstances warrants for the mother of the accused to borrow a loan of Rs.1,50,000/ and the complainant had collected two filled cheques for Rs.75,000/ each i.e., Ex.D.1 and D2 at the time of lending of loan of Rs.1,50,000/ to the mother of the accused. As it is already stated in the above that the complainant has also admitted the receipt of Rs.1,50,000/ and also Rs.50,000/ by way of cheques and though the complainant has stated that the said amount was not pertains to the repayment of the loan amount of Rs.1,50,000/ borrowed by the mother of the accused but itwas in connection of alleged chit transaction conducted the fatherinlaw of the accused but the complainant has failed to prove that the said amount was received in connecting with the alleged chit transaction in such circumstances the accused has successfully proved that the loan amount of Rs.1,50,000/ borrowed his mother for his marriage purpose from the 57 C.C.No.610/2018 J complainant and the said amount was repaid by him along with the interest by way of 4 cheques and same were presented by the complainant and encashed by him.
35. It is also relevant to here to mention that, the complainant in his legal notice, complaint and evidence stated that the accused and his fatherin law have borrowed a loan of Rs.4 Lakhs from him during the last week of October 2016 for the purpose of purchasing new JCB Machine / Equipments by agreeing to repay the said amount on or before 31.03.2017 and thereafter in the 1 st week of April 2017 the accused and his fatherinlaw have voluntarily met him and requested for grant of some more time for repayment the said loan amount till mid of September 2017 and the accused issued two post dated cheques i.e., Ex.P.1 dated: 16.10.2017 for Rs.2 Lakhs and another cheque bearing Nos. 184675 for Rs.2 Lakha dated: 16.09.2017 in his favour by assuring and promising to honor the said cheques on the date of year presentation. Hence the contention of the complainant goes to show that as per his own averments and his evidence the cheque 58 C.C.No.610/2018 J in question and another cheque were not issued to the complainant at the time lending of the alleged loan amount of Rs.4 Lakhs, according to the complainant the accused has issued the Ex.P.1 cheque and another cheque for Rs.2 lakhs each in the 1st week of April 2017 by mentioning the date of as 16.09.2017 and 16.10.2017 i.e., post dated cheques, but whereas the complainant in his cross examination admitted that he does not know on which date he has received cheques from the accused and the learned counsel for the complainant during the course of crossexamination of the DW.3 has suggested that he and the accused have approached the complainant in the year 2016 seeking loan of Rs.4 Lakhs and at that time lending loan amount to, the complainant had collected two cheques from the accused towards the security of the loan amount, hence the admission of the complainant and suggestion itself goes to show that the complainant is not confident and he himself falsified his claim that the accused has issued two post dated cheques during the 1st week of April 2017 towards discharge of the loan amount inquestion. In addition to that even in the complaint the 59 C.C.No.610/2018 J complainant has not stated the date and place of issuance of the cheque in question and another cheque in his favour towards discharge of the loan amount in question, hence in view of the above said admitted facts a serious doubt creates with regard to issuance of cheque in question and another cheque by the Accused infavour of the complainant towards discharge of the loan transaction in question, on the contrary it corroborates the defence of the Accused that, the complainant had collected the blank signed cheques of him and at the time of extension of the time for repayment of the loan amount of Rs. 1,50,000/ received by his mother form the complainant and said cheque has been misused by the complainant in the present case. If really the Accused has borrowed the loan amount in question and issued the cheque in question towards discharge of the said loan amount as claimed by the complainant, definitely the complainant would have mentioned the date on which the Accused approached him and the place in which the Accused has issued the cheque in question and another cheque in his favour, failure to mention the above said important facts may leads to draw an adverse 60 C.C.No.610/2018 J inference against the complainant that, the claim made by the complainant in this case appears to be doubtful and it corroborates the defence of the Accused. In this regard, it is relevant here to refer the decisions of Hon'ble High Court of Karnataka reported in ILR 2014 KAR 6572 in a case of Sri.H.Manjunath vs. Sri.A.M. Basavaraju, wherein the Hon'ble High Court of Karnataka held that "NEGOTIABLE INSTRUMENTS ACT, 1881 section 138 offence under - Judgment of Acquittal - Appealed against -Absence of statement in the complaint as to when the amount was actually given to the accused Absence of material particulars of the transaction in the complaint except signature all other entries are in different handwriting different ink and undoubtedly made at different time Mentioning of merely the date of issue of cheque without any material particulars - HELD , Judgment of acquittal is justified As seen from the complaint there is no statement as to when the amount was actually given to the Accused. The 61 C.C.No.610/2018 J complainant has merely mentioned the date of issuance of cheque without any material particulars of the transaction. The cheque in question undoubtedly is signed by the accused. The dispute raised is entries made in the cheque are not in his handwriting. - It is not the case of the complainant that cheque was issued in blank and filled up later with consent of the accused FURTHER HELD, perusal of cheque at Ex.P.1 makes it manifest that except signature all other entries are in different hand writing, different ink and undoubtedly made at different time. In this view it is difficult to accept the version of the complainant. CRIMINAL PROCEDURE CODE, 1973 - SECTION 378(4) - APPEAL AGAINST ACQUITTAL - DISCUSSED. It is a relevant here to the decision of Hon'ble Apex Court of India reported in (2015) 1 SCC 99 in the case of K.Subramani Vs. K. Damodar Naidu., wherein the Hon'ble Apex court held that " Debt, Financial and Monetary Laws Negotiable Instruments Act, 1881 Ss, 138, 118 and 139 -
62 C.C.No.610/2018 JDishonour 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 infavour of holder of cheque, hence, held, Stood rebutted Acquittal restored". In another decision reported in (2014) 2 SCC 236 in the case of John K. Abhraham Vs. Simon C.Abraham and another., wherein the Hon'ble Apex court held that " In the present case the complainant not aware of the date when substantiate amount of Rs.1,50,000/= was advanced by him to the appellant/accused - respondent/ complainant failed to produce relevant documents in support of alleged source for advancing money to the Accused - complainant also not aware as to when and where the transaction took place for which the cheque in question was issued to him by Accused - complainant also not sure as to who wrote the cheque and making contradictory statements in this regard in view of said serious defects/ lacuna in evidence of 63 C.C.No.610/2018 J complainant, judgment of High Court reversing acquittal of Accused by trial court, held was perverse and could not be sustained - acquittal restored". Hence by applying the said principles of law laid down by Hon'ble Apex Court to the present facts of the case are aptly applicable to this case as in the present case also the complainant has not stated the date on which the Accused and his father inlaw were approached him seeking alleged loan of Rs.4 Lakhs and has not stated the place of issuance of cheque in question and another cheque to him and has also not produced the documents to show that, he has got sufficient source of funds to lend the loan amount to the Accused and the claim set up by the complainant in the present complaint appears to be doubtful with regard to lending of loan amount in question, in such circumstances in view of the above principles of law laid down by Hon'ble High Court of Karnataka and Apex Court the complainant has miserably failed to prove that he has lent loan amount of Rs.4 Lakhs to the fatherinlaw of the Accused and in turn the Accused has issued the cheque in question towards the discharge of the said 64 C.C.No.610/2018 J loan amount and the Accused has rebutted the presumption available infavour of the complainant.
36. On careful perusal of the contents of para No.1 to 12 of the written argument submitted by the learned counsel for the complainant, same cannot be acceptable one in view of the findings given above by this court while appreciation of the oral and documentary evidence of the complainant and accused. No doubt the accused admitted that the cheque question belongs to the account of the accused and signature found on the cheque in question is that of his signature but the accused has successfully rebutted the presumption available U/s. 139 of N.I.Act not only on the materials produced by the complainant but also producing his oral and documentary evidence, therefore with due respect to the principles of law laid down by the Hon'ble Apex Court of India in the case of Birsingh Vs Mukesh Kumar decided in Criminal Appeal No. 230 231/2019 relied upon by the learned counsel for the complainant is not applicable to the claim made by the complainant in this case, as the accused has successfully rebutted the presumptions available 65 C.C.No.610/2018 J U/s. 139 of N.I.Act and also discharged his burden, on the contrary fails to prove his claim.
37. Therefore, on careful scrutiny of over all evidence of the complainant and Accused as it is already held and come to the conclusion that, the complainant has miserably failed to prove that he has lend an amount of Rs.4 Lakhs/= to the father inlaw of the Accused by way of cash and in order to discharge the said loan amount the Accused has issued the cheque in question i.e., Ex.P.1 for Rs. 2 Lakhs infavour of the complainant. No doubt, some discrepancies have been elicited by the complainant during the crossexamination of Accused and DW.2 and DW.3 but there are no proof regarding the same, however when the complainant himself has failed to establish his case beyond all reasonable doubt, he cannot be permitted to find fault in the defence of the Accused. Hence the standard of proof is expected from side of the complainant is proof beyond all reasonable doubt and in the present case complainant has failed to prove his case beyond all reasonable doubt on the contrary the Accused has successfully rebutted the presumption available 66 C.C.No.610/2018 J infavour of the complainant U/s.118 and 139 of N.I. Act by taking reasonable and probable defence, accordingly for the above said reasons this point is answered in the 'Negative'.
38. Point No.2: In the light of discussions made at above point and for the said reasons this point is answered in the negative and it is just and proper to pass the following : ORDER The complaint U/s.200 of Cr.P.C. filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C.
the accused is acquitted for the offence punishable U/sec.138 of N.I.Act.
Personal bond executed by the Accused stands cancelled.
The cash security of Rs.2,000/= which was deposited by the Accused vide order dated 11.10.2018 is ordered to be refunded to him (if not lapsed or 67 C.C.No.610/2018 J forfeited) after the expiry of the appeal period.
(Directly dictated to the Stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 28th day of May, 2021).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri. D.Chikkanna;
2. List of documents exhibited on behalf of the Complainant: Ex.P.1 : Original Cheque;
Ex.P.1(a) : Signatures of the Accused;
Ex.P.2 : Bank Memo; Ex.P.3 : Office copy of the Legal Notice; Ex.P.4 : Returned copy of the Legal Notice; Ex.P.5 : Postal Cover; Ex.P.6 : Postal Receipt; Ex.P.7 : Postal Acknowledgment;
3. List of witness/s examined on behalf of the Accused: DW.1 : Sri. Sri. Vishwanatha S/o Sri. Krishnappa;
68 C.C.No.610/2018 JDW.2 : Smt. Marakka W/o. Late Kittappa; DW.3 : Sri. V. Subramani S/o. Venkateshappa;
4. List of documents exhibited on behalf of the Accused: Ex.D.1 and : Original cheques;
D.2
Ex.D.3 and : Statement of Account pertaining to ICICI
D.4 Bank;
Ex.D.5 : Marriage Invitation Card;
(SRI.S.B.HANDRAL),
XVI ACMM, Bengaluru City.
69 C.C.No.610/2018 J
28.05.2021
Through V.C.
(Time.4.20.P.M)
Case called the learned
counsel for the complainant and
accused are present through video
conferencing i.e., jitsi meeting
app., judgment pronounced
through V.C. (Vide Separate Order) ORDER The complaint U/s.200 of Cr.P.C. filed by the complainant 70 C.C.No.610/2018 J for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C. the accused is acquitted for the offence punishable U/sec.138 of N.I.Act. Personal bond executed by the Accused stands cancelled. The cash security of Rs.2,000/= which was deposited by the Accused vide order dated 11.10.2018 is ordered to be refunded to him (if not lapsed or forfeited) after the expiry of the appeal period. XVI ACMM, B'luru.