Bangalore District Court
Jayachandra Reddy vs Mr. Anand Kumar on 2 June, 2018
IN THE COURT OF THE XV ADDL.JUDGE
COURT OF SMALL CAUSES & 23rd ACMM, MAYO HALL UNIT,
BENGALURU
Present: Sri. DYAVAPPA. S.B.,
B.A., LL.B.,
XV Addl. Small Causes Judge &
XXIII A.C.M.M., Member, M.A.C.T.,
Bengaluru.
Dated this the 2nd day of June 2018
CC.No.26370 / 2011
COMPLAINANT: Jayachandra Reddy
S/o Sri.S. Nagi Reddy
R/at No.224, Ground floor,
4th 'D' Cross, 2nd 'A" main,
Kasthurinagar, N.G.F. East,
BENGALURU-560 043.
(By Pleader Sri. Y.P)
v/s
ACCUSED: Mr. Anand Kumar,
S/o Sri. Kondappa,
R/at "Sri. Mookambika",
No.122, 1st Floor, 2nd Cross,
New Byappanahalli Extension,
BENGALURU.
Also shop at:
Sri. Venkateshwara Men's Parlour &
Saloon A/c. No.18 1st Floor,
HAL III Stage Road,
10th Main Road,
Jeevan Bhimanagar,
BENGALURU-560 008.
( By Pleader Sri. K.V.S)
####
2
SCCH -19
CC.No.26370/2011
Date of offence : 25-02-2010
Date of report of offence : 09-04-2010
Date of arrest of the accused : -
Date of recording of evidence : 03-12-2012
Offence complained of :138 of N.I Act
Judgment :Acquitted
JUDGMENT
The Complainant has filed this complaint against accused U/sec. 200 of Cr.P.C for the offence punishable under Section 138 of N.I. Act.
2. The brief facts of the case as under:
The complainant and accused are close friends. In the month of January 2008, the accused approached the complainant and requested for financial assistance by way of hand loan to the extent of Rs.15,00,000/- for improve and expand his family business of men's saloons and parlors and also to meet family necessities and discharge his legal liabilities and also the accused promised to repay the said amount in the month of August 2009. The complainant having regard to the close friendship and he is also paid the amount of Rs.5,00,000/- by way of cash to the accused i.e., complainant's residence on 18th January 2008 and again on 14th March 2008, the complainant has paid 3 SCCH -19 CC.No.26370/2011 Rs.5,00,000/- by way of cash and once again on 21st May 2008, the complainant has paid Rs.5,00,000/- by way of cash to the accused. In total, the accused has borrowed hand loan amount of Rs.15,00,000/- from the complainant. The complainant demanded the accused to pay the amount and the accused pleaded extension of time for another six months for repayment of the said amount. Thereafter on 10.09.2009 accused once again acknowledged the receipt of the said hand loan amount and towards the discharge of the said existing liability, he has issued three account payee post dated three cheques in favour of the complainant vide cheques bearing No.016154 on 25.02.2010 for amount of Rs.5,00,000/-, cheque No.016155 on 25.02.2010 for amount of Rs.5,00,000/- and cheque No.016156 on 25.02.2010 for Rs.5,00,000/- drawn on Corporation Bank, Jeevan Bheemanagar Branch, Bangalore. The complainant has believed the words of the accused accepted the three cheques. As per the instructions of the accused, the complainant has presented the above three cheques through his banker of State Bank of India, Indiranagar Branch, Bangalore, but the said three cheques were returned with dishonored for the reasons of insufficient funds. Thereafter the complainant has issued the legal notice on 17.03.2010 to the accused calling upon to pay 4 SCCH -19 CC.No.26370/2011 the three cheques amount. The said legal notice was served on the accused, but inspite of delivery of information of post, the accused did not claim the notice sent through RPAD. Further insisted supplying the demand made by the complainant, the accused has untenable reply through his counsel on 24.03.2009. However, the accused partly admits the following hand loan towards from the complainant and accused failed to repay the aforesaid dishonor cheques amount to the complainant. The accused without arranging the funds in his bank account with an intention of cheating as issued the cheque and failed to discharge the legal liability. Therefore, the accused has committed an offence punishable under Section 138 of N.I. Act. Hence they prays for punish the accused and directed the accused to pay the cheque amount.
3. After presenting the complaint, this court has taking the cognizance of offence and registering as PCR No.8493/2010 and after recording the sworn statement and perusal of the materials, this Court has registered this case for the offence punishable under Section 138 of N.I. Act and issued the summons to the accused. After service of the summons, the accused appeared through his counsel and obtained the bail. Copy of the complaint 5 SCCH -19 CC.No.26370/2011 supplied to the accused and as the case is summons case, the acquisition of the plea as read over and explained to the accused. The accused pleads not guilty and claims to be tried, hence posted for complainant evidence.
4. In order to prove the case, the complainant examined as PW.1 and 2 and produced in all 16 documents marked as Ex.P.1 to P.19. After completion of the complainant evidence the statement under Section 313 of Cr.P.C. is recorded and the accused denied the incriminating evidence against him. The accused himself examined as DW.1 and produced 4 documents marked as Ex.D.1 and D.4. After closed the both side evidence, heard argument of the respected both counsels.
5. I have perused the materials available on hand that for the following points arise for my consideration:
1) Whether the complainant proves that towards the discharge of legal liability, the accused has issued three cheques bearing No.016154, No.016155 and No.016156 for each sum of Rs.5,00,000/-
Total Rs.15,00,000 dated : 25.02.2010 drawn on Corporation Bank, Jeevan Bhimanagar Branch, Bangalore and on presentation of the said cheque, the same were dishonored with an endorsement of Insufficient Funds and inspite of issuance of legal notice, the accused has 6 SCCH -19 CC.No.26370/2011 not paid the cheque amount and with an intention to cheat and default the complainant issued the cheques, thereby the accused is committed an offence punishable under Section 138 of Negotiable Instrument Act?
2) Whether the complainant is entitled to claim the compensation amount from the accused?
3) What Order?
6. For the following reasons, I given the answer to the above points are as under:
Point No.1 : In the Negative;
Point No.2 : In the Negative:
Point No.3 : As per final order
for the following:
REASONS
7. Point No.1 : It is the specific case of the complainant that, the accused has borrowed the hand loan amount of Rs.15,00,000/- on August 2009 from the complainant and for discharge of the said loan amount, the accused has issued the three cheques for a sum of Rs.5,00,000/- each drawn on Corporation Bank, Jeevan Bhimanagar Branch, Bangalore. But after presenting the said cheques were dishonor for the reasons of Funds Insufficient in the account of accused. Inspite of issuance of legal notice, the accused has failed to pay the 7 SCCH -19 CC.No.26370/2011 cheques amount and accused has intentionally issued the cheques for cheat and defaulter the complainant. Hence the complainant prays for punish the accused under Section 138 of N.I. Act.
8. The complainant Sri. Jayachandra Reddy examined himself as PW.1 and another one witness Mohan Raju is examined as PW.2 and filed the affidavit in lieu of chief examination. In their affidavit, they have reiterated the entire averments of the complaint and produced three cheques are marked as Ex.P.1 to P.3 and accused signatures are marked as Ex.P.1(a) to 3(a), produced sale-deed marked as Ex.P.4 and accused signature is marked as Ex.P.4(a) and two witnesses signatures are marked as Ex.4(b) and 4(c), produced 3 Bank Endorsements are marked as Ex.P.5 to P.7, produced copy of the legal notice marked as Ex.P.8, produced UCP receipt marked as Ex.P.9, produced 2 postal receipts are marked as Ex.P.10 and P.11, produced return RPID cover marked as Ex.P.12, produced notice marked as Ex.P.12(a), produced another return postal cover is marked as Ex.P.13, produced postal cover is marked as Ex.P.13(a), produced reply letter marked as Ex.P.14, produced returned postal cover is marked as Ex.P.15 and produced notice marked as Ex.P.15(a), produced special 8 SCCH -19 CC.No.26370/2011 power of attorney is marked as Ex.P.16, lease agreement marked as Ex.P.17, produced certified copy of deposition marked as Ex.P.18 and produced one bank account statement marked as Ex.P.19. In the cross-examination, the counsel of the accused specifically suggested that, the accused has not borrowed the hand loan amount and also not issued the cheque for the purpose of discharge the legal liability and also suggested that by forcibly taken the signature of the accused on cheques and stamp papers, but same is denied.
9. The accused B.Anand Kumar, examined himself as Dw.1. He has deposed that he did not know the Complainant and one Ravi the landlord of the building has obtain three cheques by forcible with threaten. Further deposed that he has not issued the cheques in favour of the complainant and also deposed that he has not borrowed loan amount from Complainant. Further produced one deposition marked as Ex.D-1, produced copy of lease agreement marked as Ex.D-2, produced two receipts marked as Ex.D-3 and 4. Further deposed that the complainant has misused the cheques and filed false complaint. In the cross examination counsel for the Complainant has specifically suggested that, he has borrowed the loan of Rs.15,00,000/- from the 9 SCCH -19 CC.No.26370/2011 Complainant and also executed one Agreement and given three post dated cheques for the repayment of said loan amount, but same is denied.
10. Counsel for the Complainant has submitted the Written Arguments and stated entire averments of the complaint. Further, accused has admitted his signature in the cheques and also agreement. Hence, presumption can be drawn that the cheques were issued for the discharge of legal liability. The counsel for the accused has argued that the accused is not capable to borrow the loan amount of Rs.15,00,000/- from the Complainant and also two cases were registered against the accused on same serial number cheques for total amount of Rs.30,00,000/- and writing of the cheques written by Sri.Ravi and the complainant has created the documents. Further it is not possible to pay the amount of Rs.15,00,000/- one day and the accused has not received the loan amount and complainant is not known to the accused. Further argued that, the General Power of Attorney holder is not a proper person to give evidence as a complaint and General Power of Attorney holder is not known the transaction. Further argued that, the Complainant has failed to prove the issuance of Cheques for repayment of loan and hence the question of the 10 SCCH -19 CC.No.26370/2011 offence punishable U/sec.138 of N.I. Act does not arise. In support of their arguments, the counsel for the accused has cited following Judgments:
1. 2011(4) Crimes 158 (Kerala)
2. 2007 Crl.L.J. 3124 (Kerala)
3. 2013(1) DCR 390 (Kerala)
4. 2016 Crl.L.J. 2299 (Madras)
5. 2012(2) DCR 406 (P & H)
6. AIR 2009 SUPREME COURT 422 (S.C.)
7. 2017(2) DCR 740 (Kerala)
8. 2015(2) DCR 99 (Bombay)
9. 2012(1) DCR 385 (Kerala)
10. 2013(2) DCR 427 (Kerala)
11. 2008 Crl. L.J. 434 (S.C)
12. 2015 (3) DCR 132 (P & H)
13. 2015(1) DCR 642 (Karnataka)
14. 2015(1) DCR 5 (S.C.)
15. 2012 (2) DCR 504 (Bombay)
16. (2004) 2 Supreme Court Cases 236,
17. AIR 2005 Supreme Court 439, and
18. AIR 1999 Supreme Court 1441.
11. I have perused the documents produced by the Complainant it appears that, the cheques Ex.P1 to 3 are belongs to the account of Accused and one agreement is produced with respect to receipt acknowledgment-cum- repayment agreement. The accused has taken specific contention that, one Ravi who is the Complainant in CC No.26080/11 has taken the blank cheques with forcibly and also obtained the signatures on the blank stamp papers. Accused has admitted his signature on the 11 SCCH -19 CC.No.26370/2011 cheques, but the question is whether said cheques are issued for the purpose of repayment of hand loan and either complainant nor accused were having the capacity to lend loan amount or borrowed the said amount. It is admitted fact that, the accused is a Barber by Profession and running a Saloon shop. The complainant has stated that for the purpose of improving and extending the business the accused need loan amount and also requested to lend the amount. But as per the admission in the cross examination of the complainant the accused was vacated the shop. Therefore, how can it possible to improve and extending the business in the said shop.
12. It is pertain to note that, though the complainant has produced the bank account extract and drawing amount from the bank, but there is no recitals about payment of the said amount to the accused with regarding to hand loan. Therefore, mere drawing amount from the bank is not sufficient proof about lending amount to the accused. The loan amount is 15 lakhs, why the Complainant has not paid the amount through bank account to the name of accused. In this regard, the defence counsel has relied one Judgment of Hon'ble Kerala High Court reported in 2013(1) DCR 390 in the case of Rajeev V State of Kerala it is held that;
12SCCH -19 CC.No.26370/2011 "Negotiable Instruments Act 1881-section 138- Determination of offence -held-producing pass book to show that the disputed amount was withdrawn from his account is not sufficient to hold that the same amount was handed over to accused".
13. The accused is not capable to borrowed the loan amount of Rs.15,00,000/- each cases total amount of Rs.30,00,000/-. Hence the cheques are not issued by the accused for discharge of the legally recoverable debt. Therefore it cannot be taken the presumption under Section 139 of N.I. Act with regarding the issuance of cheque for discharge the loan amount. The counsel of the accused vehemently argued that after chief examination, the complainant not turned up for cross- examination. Thereafter, the evidence of complainant is discharged and seeking the permission to examine the General Power of Attorney holder on behalf of the complainant, but the said GPA holder is not known the transaction. Once the complainant was examined, thereafter the GPA holder cannot be examined as a Principal complainant and he is only treat as witness of the complainant. Hence, the entire evidence of the GPA holder is not considerable.
14. I have perused the evidence of the complainant it disclose that, the complainant Jayachandra Readdy 13 SCCH -19 CC.No.26370/2011 examined himself as PW.1 in two times as PW.1 and also he has produced some documents and marked as exhibits. But even after granting the sufficient time, he was not appeared for tendering the cross-examination. Thereafter, one Sri. Mohan Raju, General Power of Attorney holder of the complainant examined on behalf of the complainant and filed the affidavit in lieu of chief examination and he has repeated the entire averments of the complaint as well as chief affidavit of the PW.1. But in the cross-examination, admitting that, the complainant Jayachandra Reddy is hale and healthy person and there is no any health issues for appearing before the Court and also is admitting that, when cheques were issued he was not present at that time. Further, he was not present as on the date of execution of the agreement and he was not signed on the said agreement. Further he did not know the money transaction of the complainant and also the accused. Further he did not know the who is typed the Ex.P.4 and admitting that the amount of Rs.15,00,000/- is big amount to the complainant. Further he is admitting that, in the Bank account statement there is no entry with regarding the amount was transfer to the account of the accused. Therefore it is clear that, the General Power of Attorney holder of the complainant is not known the 14 SCCH -19 CC.No.26370/2011 entire transaction between the complainant and accused. Though he deposed that he has present at the time of lending the amount, but he is not considered as the Principal Complainant and he is only considered as the witness of the complainant.
15. Further the loan amount of Rs.15,00,000/- paid to the accused on cash and it is taken from the bank account and given the hand loan, but in support of the source of income, the complainant has not produced any other documents. Though the complainant has produced one bank account statement, but the said statement was not helpful to proved the payment of the loan amount to the accused. Therefore the said account statement is not relied for the purpose of source of income and lend the amount to the accused as hand loan. It is rightly pointed out by the defence counsel that in the year 2008 the amount of Rs.15,00,000/- is the big amount. The complainant has not offered any interest on said loan amount. It is pertain to note that, the accused is only known to the complainant as he is the customer to the accused. Hence there is a doubt created that how can it possible to give the said big amount to the accused without any rate of interest. Further the complainant 15 SCCH -19 CC.No.26370/2011 has failed to prove his source of income and nothing has been elicited from the mouth of the accused.
16. As discussed above, the accused is being barber running the hair cutting saloon and also the complainant has failed to produce any documents with respect of the accused is having the capacity to borrowed the loan amount of Rs.15,00,000/-. Though the complainant counsel has argued that for the purpose of proving the transaction, the accused has executed the one repayment agreement, but the said agreement is prepared only after borrowed the amount and the said agreement was prepared on 10.09.2009, but as per the complaint, the complainant has lend the amount to the accused on January 2008. Therefore the said agreement i.e., Ex.P.4 is not concerned to the transaction of the loan amount. It is only to receipt of acknowledgement-cum-repayment of the agreement. It is pertain to note that, in the said agreement shows the cheques numbers and amount and also date of the cheques. It disclosed that said three cheques were issued on very same day to the complainant for the total amount of Rs.15,00,000/-. The accused being the barber and running the cutting shop, how can it possible to arrange the said amount one day. Therefore it is created the some doubts about the 16 SCCH -19 CC.No.26370/2011 issuance of cheques for the purpose of repayment of the legally recoverable debt. Therefore, mere issuance of cheques is not sufficient to prove the taken the presumption under Section 139 of N.I. Act.
17. The GPA holder of complainant is admitting in his cross-examination that, he don't know the writings on the said cheques and further said GPA holder has given the answer only don't know the signature and writing on the chques. Therefore it is clear that, the said cheques were not written by the accused. Though the complainant has taken the contention that, on the instruction of the accused has written the cheques, but as per the submission made by the defence counsel that, another one case was filed by one Ravi against this accused for the offence punishable U/Sec. 138 of N.I. Act with regarding the dishonor of the three cheques in CC No.26080/2011. After perusal of the said case, the complainant Ravi was also registered the case against the same accused for dishonor of three cheques total amount of Rs.15,00,000/-. In the said case, the writings on the said three cheques were written by the complainant R.K. Ravi. In support of the said contention, the accused has send the cheques of both cases to the truth lab. The laboratory was given the report with effect that in both 17 SCCH -19 CC.No.26370/2011 cases, all the writings on the said six cases are written by the same person. Therefore it is clear that, the complainant in CC No.26080/11 R.K. Ravi was written all the six cheques including the cheques presented in this case. The complainant has not denied the lab report and also not filed any objection to the said report. Hence it is proved that, the writings of the cheques which are produced in this case are also written by the complainant R K Ravi CC No.26080/11. Therefore it is clearly this case is also filed by the said R K Ravi through the complainant herein case Jayachandra Reddy against the accused.
18. I have perused the documents produced by the accused it disclosed that, the accused is the tenant under the father of the complainant R K Ravi in CC No.26080/11 and same is admitting by the GPA holder of complainant. After perusal of the bank pass book of the accused, there is no any heavy transaction by the accused and also the complainant has not produced any documents with regarding the source of income of the accused. Hence the accused is not having the capacity to borrowed the loan amount of Rs.15,00,000/- from the complainant and also borrowed the amount of Rs.15,00,000/- from another one R K Ravi on the very 18 SCCH -19 CC.No.26370/2011 same time. After perusal of the materials, the complainant has alleged that the accused was borrowed the amount of Rs.15,00,000/- in January 2008 and also the accused has given the three cheques each Rs.5,00,000/- on 25.02.2010 for total amount of Rs.15,00,000/-. Therefore it is clear that, in the year 2008, within 6 to 7 months, the accused borrowed the total amount of Rs.30,00,000/- from the both complainants and also the accused has given the three cheques each to the complainant within six days for total amount of Rs.30,00,000/-. Therefore one thing is clear that in both cases, the accused was not having the capacity to borrowed the total amount of Rs.30,00,000/- from the complainants and he is not able to repay the said amount within 6 to 7 days. As per the lab report the writing of all the six cheques in both cases, except signature, entire writings were written by the one person.
19. The complainant has not challenged the lab report. Though he has denied the writings on the cheques, but as per the lab report, it is clear that the said cheques were also written by the R K Ravi who is the complainant in CC No.26080/11. As per the allegation made by the accused that, the complainant R.K. Ravi has obtained the signatures on blank cheques by forcibly and also on the 19 SCCH -19 CC.No.26370/2011 blank stamp papers. After considering the writings of the complainant in the said cheques, it is presumed that the said R K Ravi has taken the blank cheques from the accused and thereafter he was wrote the amount on the said cheques. Therefore mere the cheques and signatures admitted by the accused is not a conclusive proof to establish the issuance of cheques for discharge the legally recoverable debt. In this regard, the accused counsel relied the Judgment of Hon'ble Kerala High Court. In the case of Santhi V/s Mary Sherly reported in 2011(4) Crimes 158(Ker.), it is held that:
(i) Negotiable Instrument Act, 1881 - Section 138-Dishonour of cheque-Contention raised by accused in prosecution under Section 138 that he issued a bland signed cheque will not amount to admission of execution of cheque-A signed bland cheque leaf is very often referred to as a blank cheque but strictly speaking it is not a cheque as defined under N.I. Act-It can be treated only as a cheque leaf containing admitted signature of accused.
(ii) Negotiable Instruments Act, 1881 -
Section 138 read with Sections 5 and 6-Dishonour of cheque-Only overt act which makes a person liable for offence under Section 138 is drawing of cheque by him-Main factor to be proved by complainant to establish guilt of accused under Section 138 is that accused has drawn cheque-A person can be said to have drawn a cheque if he has made, prepared or created a cheque_If prosecution proves that accused has made or prepared or created a cheque which contains an 20 SCCH -19 CC.No.26370/2011 order in writing under his signature, directing banker to pay a certain sum of money only to payee or bearer or to the order of a certain person, he can be said to have drawn the cheque-Absence of word "execution" in Section 138 is of no consequence-It is also not an excuse not to prove execution/drawing in a prosecution under Section
138.
(iii) Negotiable Instrument Act, 1881-Section 138-Dishonour of cheque-Fact that accused has drawn cheque, can be proved by any known method recognized by law-Mere production of a cheque or marking the same as an exhibit in a case will not prove that cheque is drawn by accused-Factum of drawing or execution of cheque has to be proved by evidence of person or persons who can courchsafe for truth of facts in issue-It can be proved by direct or circumstantial evidence, which is admissible in law.
(iv) Negotiable Instruments Act, 1881-Section 138-Evidence Act, 1872-Sections 45 and 73- Dishonour of cheque-Mere production and marking of cheque may only prove that a cheque which contains an order in writing and a signature has come into existence-But it will not further prove that it is created drawn or executed by accused-In absence of direct evidence relating to writing and signature in document, execution may be proved by examination of a person who is qualified and competent to express his opinion, as to handwriting and signature, by acquaintance or otherwise-Evidence of a handwriting expert under Section 45 may be obtained to prove authorship of writing and signature in the document-Court may also reach a conclusion on authorship of handwriting and signature by comparison.
21SCCH -19 CC.No.26370/2011
(v) Negotiable Instruments Act, 1881-Section 138-Evidence Act, 1872-Sections 45 and 73- Dishonour of cheque-In cases in which only circumstances evidence is produced before court to prove drawing of cheque, court shall follow the mode adopted for appreciation of circumstantial evidence, to enter a finding whether cheque is drawn by accused-If any circumstance proved in the case can be explained on any hypothesis which is inconsistent with assertion of drawing of cheque by accused, accused cannot be said to have drawn cheque-For a successful prosecution of offence under Section 138, complainant must allege and prove that cheque was drawn or executed by accused-In absence of proof of such fact, accused cannot be convicted for offence under Section 138.
20. Further the Hon'ble High Court, Kerala held in the case of Kamalammal V/s C.K. Mohanan and Another reported in 2007 CRI. L.J. 3124, it is held that:
(A) Negotiable Instruments Act (26 of 1881), Ss.
138, 139 - Dishonour of cheque - Presumption under S. 139 - When available - S. 139 applies only if "cheque" is established to be of nature stated in S.138 - Court cannot presume that cheque is "issued/executed/drawn" by accused - Issuance of blank cheque - Cannot give rise to presumption that implied authority is given to holder of cheque to fill it up towards discharge of debt etc. Section 139 applies only if it is established that the cheque is of the nature stated to in S.
138. Such a cheque must necessarily be one which satisfied the definition of cheque under S.6 22 SCCH -19 CC.No.26370/2011 read with S. 5 of the Act. It must contain an order in writing to pay to a certain person a certain sum of money only etc., as defined in the Act. There is nothing in S. 139 to show that the prosecution is exonerated from proving that the cheque falls within the definition of the cheque under the Act. The cheques produced in all the cases under S. 138, ordinarily contain an order in writing. But, that does not mean that the Court shall immediately come to a conclusion that such cheques satisfy the definition under the Act. In cases where the accused raises a plea that the cheque was a blank signed one when it was handed over or received by another person, the Court will have to scan through the evidence and material placed before it and decide whether the complainant 'proved' that the accused has drawn a cheque of the nature defined under the Act or, whether it was only a signed blank cheque, which does not satisfy the definition of a cheque under the Act, when it was handed over. The former has to be proved by the prosecution, just as in any criminal prosecution whereas, the latter need only be probabalised, as in a defence case. The degree of proof certainly differs.
In the absence of specific allegation in the instant case either in the complaint or in evidence or in any of the materials on record that the blank cheque allegedly issued was given with an authority to fill up the same etc., the Court declined to draw an inference of implied authority etc. 23 SCCH -19 CC.No.26370/2011
21. Further in the case of T.G. Polymer and Company V/s K.s. Shaji and Others reported in 2017(2) DCR 740, the Hon'ble Kerala High Court is held that, Section 138 of N.I. Act has Execution of cheque-Scope-Held-Merely because cheque in question bears signature of accused or just because signature is admitted, court cannot find execution against accused as conscious execution of a cheque is a different matter-Since execution of cheque is not proved, acquittal is just and proper.
22. Further in the case of Shri. Gajanan Lobaji Kitturkar V/s Smt. Sumati S. Bhandari reported in 2015 (2) DCR 99, the Hon'ble Bombay High Court held that:
Negotiable Instruments Act, 1881-Section 138 and 139-Criminal Procedure Code, 1973-Section 378- Conclusive proof-Scope-Held-Merely because a cheque is issued, the same is not a conclusive proof of fact that the same was issued for discharge of any legally endorceable debt or liability-Prosecution must prove the guilt of accused beyond all reasonable doubts.
23. In the case of John K. John V/s Tom Varghese and Another reported in 2008 CRI. L. J. 434, Hon'ble Supreme Court held that, Negotiable Instruments Act Sectin 138 and 139 - Dishonour of cheque - Discharge of debt - Rebuttal of presumption under S. 139 - Court can take notice of conduct of parties - Respondent 24 SCCH -19 CC.No.26370/2011 alleged to have borrowed huge sum from appellant- complainant despite suits for recovery of defaulted amount filed against him by appellant - No document executed - Amount advanced carrying no interest - Finding of fact by High court that respondent did not issue cheques in discharge of any debt and discharged burden of proof cast on him under S. 139 - Being not perverse cannot be interfered with under Art.136 of Constitution of India.
24. In the case of Manjit Singh V/s Kanta Verma reported in 2015(3) DCR 132, Hon'ble Punjab and Haryana High Court held that, Section 138 of Negotiable Instrument Act, Dishonour of cheque-Acquittal-Validity-Held-since there is no satisfactory explanation for source of funds out of which such alleged loan amount was acquittal of accused is justified-no interference - petition is dismissed.
In the case of K. Subramani V/s K. Damodara Naidu reported in 2015(1) DCR 5, the Hon'ble Supreme Court held that, Negotiable Instruments Act 1881 - Sectin 138
- Dishonour of cheque-Acquittal-Legality-Held- Where complainant had no source of income to lend such huge amount to accused and failed to prove that there is legally recoverable debt payable by the accused to him then acquittal is just and proper.
25SCCH -19 CC.No.26370/2011 In the case of John K. Abraham V/s Simon C. Abraham and Another reported in 2014(2) SCC 236. Hon'ble Supreme Court head that, Negotiable Instrument Act, Section 138, 139 and 138 - Dishonour of cheque - Drawing presumption under S. 118 R/w S. 139 -
Prerequisites for, when cheque is for repayment of a loan/advanced money - Proof required on the part of complainant - Held, in order to draw presumption under S. 118 R/w S. 139 burden lies on complainant to show: (i) That he had the requisite funds for advancing the sum of money /loan is question to accused.(ii) That the issuance of cheque by accused in support of repayment of money advanced was true, and iii) That the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant - In present case agreed while issuing cheque in favour of complainant - In present case, complainant not aware of the date when substantial amount of Rs.1,50,000/- was advanced by him to appellant-accused - Respondent complainant failed to produce relevant documents in support of the alleged source for advancing money to accused - Complainant also not aware as to when and when the transaction took place for which the cheque in question was issued to him by accused - Complainant also not sure as to who wrote the cheque and making contradictory statements in this regard - In view of said serious defects/lacunae in evidence of complainant, Judgment of High Court reversing acquittal of accused by trial court, held, was perverse and could not be sustained - Acquittal restored.
26SCCH -19 CC.No.26370/2011
25. After perusal of the cross of DW-2 and materials available on hand one thing is clear that, all cheques in both cases were written by the complainant R.K.Ravi in CC No.26080/11. Though the complainant has deposed that on the instruction of the accused, he has written the cheques, but in support of the said contention, the complainant has not produced any documents and also not adduced any oral evidence. It is pertain to note that, the counsel of the complainant nothing has been eliciting from the mouth of the accused with regarding the issuance of cheques for discharge the legal liability or legally recoverable debt of Rs.15,00,000/-. Though, the complainant has produced one agreement but the said agreement is not pertain to the lending the loan amount to the accused. It is only to receipt of acknowledgement for repayment of the amount and issuance of cheques in favour of the complainant. Therefore said document is not helpful to prove the loan transaction.
26. Further it is pertain to note that the complainant Jayachandra Readdy examined himself as PW.1 in two times as PW.1 and also he has produced some documents and marked as exhibits. But even after granting the sufficient time, he was not appeared for tendering the cross-examination. Thereafter, one Sri. 27 SCCH -19 CC.No.26370/2011 Mohan Raju, General Power of Attorney holder of the complainant examined on behalf of the complainant and in his chief examination he has repeated the entire averments of the complaint as well as chief affidavit of the PW.1. But in the cross-examination, he has deposed that, the complainant Jayachandra Reddy is hale and healthy person and there is no any health issues for appearing before the Court and also is admitting that, when cheques were issued he was not present at that time. Further, he was not present as on the execution of the agreement and he was not signed on the said agreement. Further he did not know the money transaction between complainant and accused. Further he did not know about who is typed the Ex.P.4 and the said amount of Rs.15,00,000/- is big amount to the complainant. Therefore it is clear that, the General Power of Attorney holder of the complainant is not known the entire transaction between the complainant and accused. Though he has deposed about the presence at the time of the lending the amount, but he is not treat as Principal Complainant and he is only considered as the witness of the complainant. The complaint was filed by the complainant in his independent capacity. Hence the evidence of the General Power of Attorney holder is not reliable and also it is not considered as the evidence of 28 SCCH -19 CC.No.26370/2011 the complainant. In this regard, the defence counsel has relied the Judgment of the Hon'ble Supreme Court in the case of Janki Vashdeo Bhojwani and Another V/s Indusind Bank Limited and Others reported in AIR 2005 Supreme Court 439, it is held that, Order 3 Rule 1 and 2 empowers the holder of power of attorney to 'act' on behalf of the principal. The word 'acts' employed in Order 3 Rule 1 and 2, confines only in respect of acts done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. If the Power of attorney holder has rendered some 'acts' in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
27. Further, the Hon'ble Supreme Court held in the case of Vidhyadhar V/s Mankikrao and Another reported in AIR 1999 Supreme Court 1441, it is held that, (A) Evidence Act (1 of 1872), S. 114 - Adverse inference - Party to suit - Not entering the witness box - Givt rise to inference adverse against him.
Where a party to the suit does not appear into the witness box and states his own case on oath 29 SCCH -19 CC.No.26370/2011 and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct. In the instant case defendant No.1 alleged that the sale-deed, executed by defendant No.2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transactions as only Rs.500/- were paid as sale consideration to defendant No.2. But this plea was not supported by defendant No.1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No.2 and the plaintiff was a bogus transaction.
28. Further, the Hon'ble Punjab and Haryana High court held in the case of Mukesh Aggarwal V/s Rajinder Kumar Pahwa and Another reported in 2012(2) DCR 406 is held that, The settled law is that the complaint may not essentially be required to be filed by the complainant himself, but complainant certainly has to step into the witness box to prove the allegations leveled against the accused. No doubt, the power of attorney could appear in the witness box, yet his testimony could be appreciated to a limited extent i.e., qua the facts within his personal knowledge. It has been observed by Hon'ble Kerala High Court in case Anirudhan V/s Philip Jacob, 2006(4) Criminal Court Cases 130 (Kerala) that power of attorney holder is competent to speak of facts within his exclusive personal knowledge. Similarly, it was 30 SCCH -19 CC.No.26370/2011 observed by Hon'ble Madhya Pradesh High court in the case of Mahendra Kumar V/s Armstrong and another, 2005(3) Civil Court Cases 75 that if the attorney has appeared as a witness at the stage of taking cognizance, his testimony could be considered for the purposes of registration of the complaint/issuance of process under Section 204 Cr.P.C., but for further proceeding, examination of the complainant is a must. In another case titled as M/s G.I. Packaging Private Limited and another V/s M/s S.S. Sales and another, 2006(2) S.L.J. (Bombay) 900, the Hon'ble Bombay High Court has observed that power of attorney cannot depose on behalf of the complainant, but he can appear as a witness on behalf of the complainant and depose about the facts in his personal knowledge. It is also well settled by now that if the party, bound to appear to prove the allegations, does not enter into the witness box, then the inference would be drawn that the plea set up by him is not correct.
29. Here in this case, the complaint presented by the complainant and also record the sworn statement. Further after recording the sworn statement and acquisition of the plea, the complainant himself entered the witness box and examined as PW.1. But after granting the sufficient opportunity on imposing the costs the complainant not turned up for tendering the cross- examination. Hence this Court has dismissed the case as non-prosecution and thereafter the complainant counsel has reopened the case and recalled the PW.1 for cross-examination. Even thereafter, the complainant is 31 SCCH -19 CC.No.26370/2011 not turned up for tender the cross-examine, then the complainant counsel has seeking the permission to examine the PA holder on behalf of the complainant and then the one Power of Attorney Holder examined as PW-
2. But there is no any proper reasons to non-appearance of the complainant himself for tendering the cross- examination. The SPA Holder has clearly admitting that, the complainant is not having any health problem. It is only reason that he is not able to attend the Court, due to his business. But it is not reasonable ground for accepting the non-appearance of the complainant. After perusal of the cross-examination of the SPA holder, it is clear that, he did not know the entire transaction between complainant and accused. Further he did not know the issuance of cheques to the complainant. Hence he is not a proper person to deposed as the Principal and he did not know the facts and transaction of the complainant and accused. It is bounden duty of the complainant to appear before the Court to prove the allegations. Does not enter into the witness box as the witness on behalf of the complainant. Once the complainant has presenting the complaint and proceed the further proceedings of the case, the examination of the complainant is a must. Hence, the evidence of the SPA holder is not considerable. Once the complainant is 32 SCCH -19 CC.No.26370/2011 not turned up for cross-examination, automatically his entire evidence was discarded. Once the evidence of the complainant is discarded, automatically the entire proceedings will be discharged. For the purpose of proving of lending the amount of Rs.15,00,000/- to the accused as hand loan and issuance of cheques by the accused for the purpose of repayment of the loan, the evidence of the complainant is must. Once the evidence of the complainant is discharged, then no evidence could be said to be on the record with regard the presentation of the cheque by the accused and also the cheques were issued for discharge the legal enforceable liability. Further, counsel of the complainant nothing has been eliciting in the mouth of the accused with respect of issuance of cheques in favour of the complainant for discharge the legally debt.
30. It is pertain to note that, as per the Lab report and also evidence of the DW.2, it is clearly proved that, the writings of the cheques of this case were written by the person who is written the cheques in CC No.26080/11. In CC No.26080/11 proved that the cheques were written by the complainant R.K. Ravi himself. Therefore here in this case, the cheques were also written by the said complainant R.K. Ravi. As discussed above, the accused 33 SCCH -19 CC.No.26370/2011 is being the barber and he had no sufficient source of income and capacity to borrowed the loan total amount of Rs.30,00,000/- within 5 to 6 months and also he is not capable to repay the said amount within the month by issuance of cheques. Mere there are some discrepancy in the cross-examination of the accused are not a ground to proved the loan transaction between complainant and accused. After considering the writings on the said cheques by the complainant R K Ravi, it is presumption that, the accused has not issued the cheques for repayment of the amount of Rs.15,00,000/- each cases within one month. Further it is pertain to note that for the purpose of show the source of income, the complainant has not produced any documents. Though they have produced one bank account statement, but there is no direct evidence with regarding the source of income to the complainant and the complainant is not paid the huge amount through bank transaction. The alleged loan amount is huge amount, hence the payment by cash is doubtful. Further it is pertain to note that, the complainant has given the hand loan without any interest, it cannot possible to pay the heavy amount without interest. Further the accused is not the close relation to the complainant and just he is known as a barber. Therefore keeping in view the contentions urged 34 SCCH -19 CC.No.26370/2011 by both sides and the principles laid down in the judgments referred supra, there are no any materials to prove presumption drawn against the accused under Section 138 of N.I. Act with regarding the issuance of cheques to the complainant and the complainant has failed to prove that, the accused has issued the cheques for discharge the legally liability in favour of the complainant and same were dishonored thereby committed an offence under section 138 of NI Act. Hence, I given the answer to the point No.1 in the Negative.
31. Issue No.2: As discussed in the point No.1, the complainant is failed to prove that, the accused has issued the cheques for discharge the liability. Hence the complainant is not entitled to claim the any compensation amount from the accused. Hence, I given the answer to the point No.2 in the Negative.
32. Point No.3: In view of the above discussion, I proceed to pass the following:
ORDER Acting U/sec.255(1) of Cr.P.C., accused is acquitted for the offence punishable U/Sec.138 of N.I. Act.35
SCCH -19 CC.No.26370/2011 Bail bond executed by the accused stand cancelled and refund the cash surety to the accused after appeal period is over.
(Dictated to the Stenographer, transcribed and Computerized by her, thereof corrected by me and then pronounced in the open court on this the 2nd day of June 2018).
(DYAVAPPA. S.B.) XV ASCJ & XXIII ACMM BANGALURU Annexure Witnesses examined for Complainant:
PW.1 : R.K. Ravi
Documents marked for complainant:
Ex.P.1 to 3 : Three cheques
Ex.P.4 : Agreement
Ex.P.5 to 7 : 3 Bank Endorsements
Ex.P.8 : Copy of the legal notice
Ex.P.9 and 10 : Postal receipts
Ex.P.11 : Postal Acknowledgement
Ex.P.12 & 13: 2 returned postal covers
Ex.P.14 : Reply notice
Ex.P.15 :
Ex.P.16 : Special Power of Attorney
36
SCCH -19
CC.No.26370/2011
Ex.P.17 : tenancy agreement
Ex.P.18 : copy of deposition
Ex.P.19 : Bank Khatha Extract
Witnesses examined for defence:
DW.1 : Anand Kumar
Documents marked for defence:
Ex.D.1 : One deposition
Ex.D-2 : Copy of lease agreement
Ex.D-3 and 4 : Two receipts
Ex.D2(1) : Two lab reports.,
(DYAVAPPA. S.B.)
XV ASCJ & XXIII ACMM