Bangalore District Court
Sri. Govinde Gowda vs Sri. K. Lokesh on 27 March, 2018
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SMT. C.G. VISHALAKSHI, B.A.L., L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO.10178/2017
Dated: This the 27st day of MARCH-2018
COMPLAINANT/S: Sri. Govinde Gowda,
S/o. Late. Bheemegowda,
Aged about 51 years,
R/at. No.289, 9th Main Road,
Milk Colony, Rajajinagar,
Bangalore - 560010.
ACCUSED: Sri. K. Lokesh,
S/o. Kaverigowda,
Aged about 40 years,
R/at. No.157/A, 5th Main,
New BEL Road,
KGE Layout, RMV 2nd Stage,
Bangalore North,
Bangalore-560094.
Also at:
Koppa Village & Hobli,
Maddur Taluk,
Mandya District.
OFFENCE Under Section.138 of Negotiable
Instruments Act.
JUDGEMENT 2 C.C.10178/2017
Plea of the accused Pleaded not guilty
Final order Acquitted
**
JUDGEMENT
This complaint is filed against the accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The complainant is doing real estate business since 30 years at and around Bangalore City and also outside of the Bangalore and he also doing agriculture in his native place. In that connection, the accused came into contact with him during the year 2012-13 saying that he is from Mandya District and got introduced to him that he is a B.E., Civil Engineer Graduate and having lot of experience in the field. He also stated that he is working as Civil Contractor in Railways and completed the Civil works in Defence Commando Hospital worth about 2½ to 3 crores on contract basis and submitted that in order to finalize JUDGEMENT 3 C.C.10178/2017 the Civil Works at Defence and to move file in the office to get release of the amount, he is need of money and hence he has approached the complainant for financial assistance to the tune of Rs.10,00,000/- by pleading his financial difficulties. But on that time, the complainant had a sum of Rs.6,50,000/- only on hand and as such he by considering the request of the accused has paid a sum of Rs.6,50,000/- infavour of the accused by cash. Thereafter some time when they were returning from Dharmasthala, the accused had visited to the property belongs to the complainant at Hassan Town and assured that he would get installation of mobile Tower on rental basis over the complainant's family property in Sy. No.45/3, Kerechikkenahalli, Channarayapattana Taluk, Hassan District and at the site property of the complainant and had received a sum of Rs.1,50,000/- from the complainant to negotiate to get tower installation and for other expenses. It is also the case of the complainant that subsequently, the accused has received a sum of Rs.2,50,000/- by cash from the complainant by pleading some difficulties during the year 2014 and received a sum JUDGEMENT 4 C.C.10178/2017 of 2,40,000/- during the year 2014. Further he along with wife had received a sum of Rs.1,10,000/- by cash from the complainant during May-2016 and thus in all the accused has received a sum of Rs.14,00,000/- from the complainant on different dates on different times. The complainant has paid above said amount out of his savings and also by withdrawing the amount from the bank account of his wife and also by pledging his golden ornaments.
3. After borrowing such amount, the accused has not fulfilled even single undertaking as he had agreed. Hence, the complainant has demanded the accused for return of the amount. On such demand during the year 2016 the accused had issued two cheques i.e., cheque bearing No.992012, dated: 03-10-2016 for Rs.4,00,000/- and cheque bearing No.297392, dated: 29-11-2016 for Rs.10,00,000/-, both are drawn on State Bank of India, Dollars Colony Branch, Bangalore infavour of the complainant towards legally payable debt and instructed the complainant to present those cheques for collection on JUDGEMENT 5 C.C.10178/2017 the dates. As per the assurance, when the complainant has presented the cheque bearing No.992012, dated: 03-10- 2016 for Rs.4,00,000/-. The said cheque was returned unpaid for the reason 'Funds Insufficient' on 04-10-2016. Immediately, he brought the said fact to the knowledge of the accused, then the accused asked the complainant to re-present the said cheque. Hence, after sometime the accused had requested the complainant to present both the cheques together assuring that he would manage sufficient amount. As per the assurance, when the complainant has presented those cheques for encashment through his banker i.e., Vijaya Bank, Malleswaram Branch, Bangalore-560003. Those cheques were returned unpaid for the reason 'Funds Insufficient' vide memo dated: 30-11- 2016 and 04-10-2016. That fact also brought to the notice of the accused. But the accused had requested him to represent cheques once again. Even on presentation of those cheques, as per the request, they were returned dishonoured.
JUDGEMENT 6 C.C.10178/2017
4. The accused had also given the demand promissory note and consideration receipt in his favour and the wife of the accused had given Aadhar Card and Election Identity Card. In spite of bringing the fact of dishonour of the cheque, the accused not come forward to pay the amount covered under the cheques. Hence, he caused notice against the accused on 24-01-2017 by RPAD calling upon the accused to pay the amount covered under the cheques by appraising the fact of dishonour of the cheques. The notice sent against the accused was returned unserved with shara 'Door Locked and left' vide postal shara dated:
27-01-2017 and 30-01-2017. Despite of intimation to the accused not complied with demands of notice. Hence, having no other go, the complainant maintained this complaint against the accused, alleging that the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and prays to deal the accused as per law.
5. On presentation of the complaint, this court has taken cognizance of the offence, sworn statement of the JUDGEMENT 7 C.C.10178/2017 complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused has appeared before this court and enlarged on bail. Copy of the complaint paper supplied to him. Substance of the accusation was read over and explained to the accused. Accused did not plead guilty and claims to be tried. Hence, the matter was posted for evidence of the complainant.
6. In order to prove the case of the complainant, he got examined himself as PW.1 and got marked documents as Ex.P1 to P31 and closed his side evidence. After completion of the complainant's evidence, the accused was examined under Section.313 of Cr.P.C. and his statement was recorded. To substantiate his defence and to falsify the claim of the complainant, the accused not produced any evidence on his side.
7. Heard arguments. Both the counsels have submitted their written arguments.
JUDGEMENT 8 C.C.10178/2017
To strengthen the case of the complainant, the counsel for the complainant has relied upon the following citations:
AIR 2001 Supreme Court 3897 Hiten P.Dalal V/s. Bratindranath Banerjee ** AIR 2010 Supreme Court 1898 Rangappa V/s. Mohan ** (2015) 17 Supreme Court Cases 368 H. Pukhraj V/s. D. Parasmal **
8. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
POINTS
1. Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence punishable under Section.138 Negotiable Instruments Act?
2. What order?
9. My answers to the above points are as follows:
Point No.1: In the Negative
JUDGEMENT 9 C.C.10178/2017
Point No.2: As per the final order,
for the following.
:: REASONS ::
10. POINT NO.1: As the accused did not pleaded
guilty, the complainant has chosen to examine himself as PW.1 and got marked documents as Ex.P1 to P31.
As per the decision reported in ILR 2008 KAR PAGE- 4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex court in AIR-2008 SC-1325 between Krishna Janardhan Bhat V/s Dattatreya G. Hegde, in order to attract Sec.138 of Negotiable Instruments Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
JUDGEMENT 10 C.C.10178/2017
11. Keeping in view the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P1 and 2 are the cheques i.e., cheque bearing No.297392, dated: 29-11-2016 for Rs.10,00,000/- and cheque bearing No.992012, dated: 03-10-2016 for Rs.4,00,000/-, both are drawn on State Bank of India, Dollars Colony, Bangalore. As per the say of the complainant, Ex.P1(a) and P2(a) are the signatures of the accused.
(b) Ex.P3 to 7 is the Bank endorsement issued by the Bank authorities, dated: 03-01-2017, 30-11-2016, 03-01-
2017, 04-10-2016 and 30-11-2016 for having dishonour of the cheques for the reason 'Funds Insufficient'.
(c) Ex.P8 is copy of the legal notice dated: 24-01-2017, which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheques amount by issuing notice against him which is within 30 days.
JUDGEMENT 11 C.C.10178/2017
(d) Ex.P9 is the postal receipt, Ex.P10 is the returned postal envelop cover with notice copy, it shows that notice was sent against the accused under RPAD.
12. On perusal of the entire materials on record, it shows that the complainant has maintained the complaint against the accused alleging that the accused by introducing himself with him that he is a B.E., Civil Engineer Graduate, working as Civil Contractor at Railway and Defence and has completed work worth of Rs.2½ to 3 crores on contract basis and to get release of the said amount and in order to move files, he pleaded his difficulties and also financial necessity and approach the complainant for loan of Rs.10,00,000/- during the year- 2013. Since the complainant had amount of Rs.6,50,000/- only on that time and he had paid the said amount infavour of the accused. Thereafter sometime, the accused by seeing the property of the complainant at Hassan, had assured him to get installation of Vodafone Tower at the joint family property bearing Sy. No.45/3, Kerechikkenahalli, Channarayapattana Taluk, Hassan JUDGEMENT 12 C.C.10178/2017 District and also on his site property and had received a sum of Rs.1,50,000/- to negotiate with regard to installation and for expenses. Thereafter, again the accused by pleading his difficulties received a sum of Rs.2,50,000/- by cash during the year 2014 and also received a sum of Rs.2,40,000/- by himself and his wife during the year 2014, assuring that the said amount would be invested in share business and thereafter again the accused had borrowed a sum of Rs.1,10,000/- in the month of May-2016 by cash and thus in total the accused has borrowed a sum of Rs.14,00,000/- from the complainant. Thereafter the accused not complied with terms in installation of the said Vodafone Tower. Hence, when the complainant has demanded the accused to repay his amount allegedly obtained by him, then on persistent demands, the accused had issued these disputed cheques in his favour towards discharge of the legally payable debt and amount assured about their honour on their presentation. But as per the assurance, when the complainant has presented those cheques for encashment for three times, those cheques were returned unpaid for JUDGEMENT 13 C.C.10178/2017 the reason 'Funds Insufficient', Despite of issuance of demand notice against the accused and its due intimation. since the accused did not come forward to settle the amount covered under the cheques, he maintained this complaint in time.
13. Per-contra, on reading the line of cross examination and the defence set up by the accused it shows that though accused not denied about acquaintance with the complainant, but denied about the claim and allegation of the complainant with regard to the fact of borrowing loan from the complainant as claimed by the complainant and also about receipt of the amount on the assurance of the installation of the mobile tower. Further he also denied the fact of issuance of disputed cheques infavour of the complainant towards discharge of any debt or liability. On the other hand, he has taken up the defence that the complainant had asked him to get installation of mobile tower at his lands and on that time he had collected his signed blank cheques as security. As there was some defect in the title of the property and as there was litigation in JUDGEMENT 14 C.C.10178/2017 respect of the property and as there was problem in installation of the mobile tower, he could not install the said mobile tower at the lands of the complainant. But thereafter though he had demanded the complainant to return his signed blank cheques. But the complainant without returning his signed cheques, but by misusing those cheques has filed this false complaint against him, though there exists no debt or liability.
14. Thus, there is no dispute so as to the fact that Ex.P1 and 2 cheques are belongs to the bank account of the accused and Ex.P1(a) and P2(a) are his signatures.
15. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE- 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of Negotiable Instruments (cheque in question) is admitted as well as proved.
JUDGEMENT 15 C.C.10178/2017
16. In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption under Section.139 of Negotiable Instruments Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration.
17. Having admitted the fact that Ex.P1 and 2 cheques are belongs to the bank account of the accused and Ex.P1(a) and P2(a) are his signatures, presumption arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, the burden is on the accused to rebut the same with probable evidence.
18. To prove the case of the complainant, he examined himself as PW.1 and deposed his evidence by way of an affidavit and reiterated the averments of the complaint and deposed about lending loan infavour of the accused totally JUDGEMENT 16 C.C.10178/2017 to the tune of Rs.14,00,000/- on different dates and time and he also deposed about the fact that the accused had assured to get installation of mobile tower at his lands and also on his site property, had obtained a sum of Rs.1,50,000/- to negotiate with regard to the installation of the mobile tower. But thereafter the accused has not fulfilled single under takings in respect to the installation of the mobile tower. Hence he has demanded the accused to pay back the amount allegedly paid infavour of the accused and also the amount obtained by the accused for installation of mobile tower. He further deposed about issuance of disputed cheques by the accused in his favour towards repayment of the amount legally payable in his favour and deposed about their dishonour on their presentation for encashment and deposed about the causing demand notice against the accused and his non- compliance. But the accused has denied the very fact of loan transaction in between the complainant and the accused and about borrowing amount from the complainant as claimed by him. He also denied about the fact of assurance given by him to installation of mobile JUDGEMENT 17 C.C.10178/2017 tower and about receipt of the amount as alleged by the complainant. When such being the case, it is for the complainant to prove the fact of alleged loan transaction in between himself and the accused and also about the transaction i.e., agreement by the accused for installation of the mobile tower at his lands and about obtaining the amount on such reason by placing any cogent and material evidence before this court.
19. No doubt, having admitted the fact that the signatures found on Ex.P1 and 2 cheques is belongs to his bank account and Ex.P1(a) and 2(a) are his signatures, presumption would arose infavour of the complainant under Section.139 of Negotiable Instruments Act. But the said presumption being rebuttable presumption, the accused should rebut the presumption by raising probable defence by placing any cogent and convincing evidence.
20. In the case on hand, the accused has challenged the very loan transaction in between himself and the complainant. That means to say that the accused has JUDGEMENT 18 C.C.10178/2017 questioned the very loan transaction in between himself and the complainant. When such being the case, burden is on the complainant to prove the fact that there was existence of loan transaction in between himself and the accused by proving the fact of lending loan infavour of the accused on the dates as stated by him in his chief-evidence by placing any material evidence before this court. Further it is also the burden of the complainant to prove the fact that the accused by giving assurance of installation of mobile tower had obtained the amount of Rs.1,50,000/- and about failure on the part of the accused to install the mobile tower by producing any cogent and material evidence.
21. Though complainant deposed in his evidence about lending loan of Rs.6,50,000/- infavour of the accused during the year 2013 and Rs.2,50,000/- infavour of the accused during the year 2014 and another sum of Rs.2,40,000/- infavour of the accused during the year 2014 and about payment of the same of Rs.1,10,000/- infavour of the accused during the year 2016, but to prove JUDGEMENT 19 C.C.10178/2017 the said fact of lending amount infavour of the accused as stated above, he did not produced any material evidence before this court nor produced any documents before this court. Because, the amount allegedly lent loan infavour of the accused by the complainant on different dates as stated above since 2013 to 16 is not a small amount, on the other hand it is huge amount of Rs.6,50,000/-, Rs.2,50,000/-, Rs.2,40,000/-, Rs.1,10,000/- and also Rs.2,40,000/- from the year 2013-14. When such being the case, if at all the complainant had advanced such huge amount on different dates infavour of the accused, then certainly he would have obtained any documents from the accused for such lending. But no any such documents placed before this court. This create doubt. Because, no prudent man would advance such huge amount infavour of any person without obtaining any documents of security or without charging any interest.
22. If really he had advanced such huge amount infavour of the accused, then, certainly he would have obtained any documents like loan agreement, Demand JUDGEMENT 20 C.C.10178/2017 Promissory Note, Receipt or acknowledgement or any documents from the accused for having paid the amount. But except his oral testimony, he did not produced any evidence i.e., any documents before this court. This creates doubt.
23. Though complainant has produced documents like pro-note and consideration receipt as per Ex.P16 and 17 asserting that the accused had executed the said document i.e., pro-note and consideration receipt in his favour for having borrowed loan of Rs.10,00,000/-. But the said document was marked on subject to proof, as the said documents does not contain the dates in which the accused had executed the said document in his favour. Further there is no any recital with regard to the person from the accused has allegedly received of the amount i.e., about passing of the consideration. Because the date column left in blank and there is no name of the person from whom the consideration was passed to the accused. Hence, the doubt created with regard to the execution of said documents like demand pro-note and the JUDGEMENT 21 C.C.10178/2017 consideration receipt by the accused. Further said documents does not speaks about the execution of the said documents in the presence of any witness as no person have been cited as witness. Further the accused has not proved the execution of the said documents by examining any person in whose presence, the alleged pronote has been executed by the accused in his favour. This also creates doubt.
24. Further the accused not placed any material evidence before this court to which loan transaction he had executed the said document like Ex.P16 and 17 documents infavour of the accused. Because, the amount shown in Ex.P16 and 17 is of Rs.10,00,000/-. But it is not the case of the complainant that he had advanced loan of Rs.10,00,000/- infavour of the accused in one count on any particular date. On the other hand, it is his case that he had allegedly advanced loan infavour of the accused nearly 4 to 5 times on different dates commencing from 2013 to 16. When such being the case, it is for the complainant to explain before the court to which loan JUDGEMENT 22 C.C.10178/2017 transaction, the accused had executed such Ex.P16 and 17 documents. Because, as per the evidence of the complainant, he had advanced loan on different dates with different quantum to the tune of Rs.14,00,000/-. But the Ex.P16 and 17 pro-note and consideration allegedly has been executed for the loan amount of Rs.10,00,00/-. and there is no any particulars with regard to the date in which it was executed and there is no particulars from whom the alleged consideration was passed. On the other hand the materials particulars were left blank. When such being the case it is for the complainant to explain before this court to which loan transaction the said Ex.P16 and Ex.P17 pro- note and the consideration receipt has been executed by producing any necessary evidence.
25. But the accused did not explained before this court by placing any evidence to which the loan transaction the said document has been executed by the accused. This creates doubt about the genuinity of Ex.P16 and Ex.P17 documents. Even otherwise no person has been examined JUDGEMENT 23 C.C.10178/2017 by the complainant to prove the fact of execution of the said documents by the accused. This creates doubt.
26. If at all the complainant had advanced such huge amount on different dates with different quantum infavour of the complainant as claimed by him, then certainly he would have advanced the amount in the presence of any witnesses. But no such persons have been examined before this court evidencing the fact of lending amount infavour of the accused on different dates with different quantum as claimed by the complainant. This creates doubt with regard to the very loan transaction in between the complainant and the accused.
27. Further it is the case of the complainant that he has advanced the loan totally to the tune of Rs.14,00,000/- on different dates since 2013 to 16. But no person would lend further loan without clearing the earlier loan. But as per the version of the complainant, though accused has not repaid the 1st loan of Rs.6,50,000/-, but inspite of the same, he continued to lend further loan infavour of the JUDGEMENT 24 C.C.10178/2017 accused as and when the accused requested him for loan, though he had not cleared the earlier loan. This creates doubt with regard to the very lending loan of Rs.14,00,000/- on different dates as claimed by the complainant.
28. Even otherwise as aforesaid, no witnesses have been examined before this court to prove the fact of the alleged loan transactions on the particular dates in which the complainant allegedly lent loan in favour of the accused. Thus, the accused utterly failed to prove the fact of loan transaction in between the complainant and accused.
29. Further there is contradiction in the evidence of the complainant. Because as per the evidence of the complainant, in his chief evidence, he has advanced loan infavour of the accused during the year-2013 to the tune of Rs.6,50,000/- at single count. But as per the evidence of PW.1, he had advanced the alleged loan of Rs.6,50,000/- not at single stretch, but part by part from 2013 to 14. JUDGEMENT 25 C.C.10178/2017 This also creates doubt with regard to the alleged lending loan infavour of the accused.
30. Further at one stretch, the complainant has stated that the accused has borrowed a sum of Rs.2,40,000/- by himself and his wife assuring that the said amount would be invested in share market. But to substantiate the said fact also, he did not produced any evidence before this court.
31. Thus, absolutely, there is no any evidence before this court by the complainant in establishing the fact that he had advanced the loan infavour of the accused on different dates with different quantum as claimed by him since 2013 to 2016 or about the fact of investment of the amount of Rs.2,40,000/- in the share business of the accused as claimed by him.
32. Further it is the case of the complainant that the accused has received the amount of Rs.1,50,000/- on the assurance that he would get installation of mobile tower at JUDGEMENT 26 C.C.10178/2017 his lands and at his site property etc. Though accused has stated about the said fact i.e., with regard to the installation of mobile tower, but not stated about the fact of payment of the amount of Rs.1,50,000/-and to prove the fact of payment of the money to the accused for the said purpose, the complainant not produced any evidence before the court. But mere the fact of admitting about the entrustment of the work of installation of mobile tower, it cannot be said that the complainant has proved the fact of payment of the amount for installation of mobile tower, unless he proves the same by placing any material evidence before this court.
33. No doubt, the accused has not proved the defence i.e., circumstance in which the disputed cheque went to the hands of the complainant by proving his defence. But mere that fact, it cannot be said that the complainant proved his case of lending loan to the accused on different dates with different quantum of the amount since 2013 to 2016 unless he proves the same with necessary cogent evidence. But as aforesaid, the complainant utterly failed JUDGEMENT 27 C.C.10178/2017 to prove the fact of proving the above said loan transaction in between the complainant and the accused by placing any material cogent and convincing evidence.
34. Further, the accused has questioned the monitory capacity of the complainant to lend such loan on different dates infavour of the accused. Though complainant has stated in his evidence that he is doing real estate business and has agricultural lands and as such he has income both by his real estate business and through agriculture. But to substantiate the said fact, he did not produced any material evidence before this court. That means to say that he has not produced any documents to support his income from the real estate business as well as agriculture. No doubt the accused has produced some RTC extracts before this court to substantiate the fact of his income from the agriculture. But mere the fact that he has agricultural land it does not mean that he has sufficient income unless he proves the same by placing any evidence with regard to the income obtained through agriculture. But except JUDGEMENT 28 C.C.10178/2017 production of the RTC extracts he did not placed any amount accrued through the agriculture.
35. No doubt the accused has placed some documents like cancellation of sale deeds which is marked at Ex.P19 document to show he has obtained a sum of Rs.10,00,000/- which allegedly advanced by him under sale agreement allegedly entered into between himself and one Chamarajegowda, Rukmani and Ramya with regard to the purchase of their property. But he had obtained such amount during the year 2014 i.e., on 22-08-2014. But as per the version of the complainant, he has advanced loan infavour of the accused since 2013 to tune of Rs.14,00,000/-. But he has not produced any evidence to show that he had amount of Rs.6,50,000/- to lend the loan infavour of the accused during the year 2013. Further the complainant has not stated any particular date, month in which he had loan of Rs.2,40,000/-, Rs.2,50,000/- and Rs.1,10,000/- and so also not stated the exact date in which he has paid a sum of Rs.1,50,000/- infavour of the accused. When such being the case, the say of the accused JUDGEMENT 29 C.C.10178/2017 that he had advanced amount of Rs.2,40,000/-, Rs.2,50,000/-, Rs.1,50,000/- and also Rs.1,10,000/-, out of the amount obtained by him through the cancellation of sale deed is not acceptable and convincing one.
36. At one stretch, the accused made an attempt to say that he had advanced loan infavour of the accused by pledging the golden ornaments at Muthoot Finance. But as per the Ex.P20, the loan was sanctioned on his gold on 07- 05-2016 and 24-12-2014. Here also he has not stated for which loan amount he had arranged the said sum by pledging his gold at Muthoot Finance, since the complainant has not clearly stated the exact date, month and year in which he has lent loan infavour of the accused. Further as per Ex.P20, the loan was sanctioned in the year 2016 that too a sum of Rs.62,000/- and another sum of Rs.16,000/- was sanctioned to him on24-12-2014 i.e., totally they have received a sum of Rs.76,000/- from Ex.P20 and 20(a) documents. There is no any evidence to show that to which loan he had arranged a sum of Rs.75,000/- or Rs.76,000/- by pledging his gold at JUDGEMENT 30 C.C.10178/2017 Muthoot Finance. Even otherwise, he has not explained the necessity for the complainant to lend loan by pledging gold at Muthoot Finance and what was the grave emergency to lend loan by pledging his gold and there is no any explanation by the complainant in that regard. This also creates doubt with regard to the lending loan infavour of the accused.
37. No doubt the accused has placed pass book pertaining to his and his wife as per Ex.P14 and P15. But those documents does not speaks with regard to the withdrawal of the amount on particular dates to lend loan infavour of the accused as claimed complainant. Hence, these documents falls short of legal evidence in proving the fact of his source of arrangement of funds in lending loan infavour of the accused on different dates with different quantum commencing from 2013 to 2015 as claimed by the complainant.
38. When he failed to prove the alleged loan transaction by placing any cogent and material evidence, then the say JUDGEMENT 31 C.C.10178/2017 of the complainant with regard to the issuance of this disputed cheque by the accused in his favour in the circumstance as stated by him towards payment of the alleged loan amount etc., is not acceptable and convincing one. On the other hand it shows that the complainant has gained the possession of the cheque of the accused in some other circumstances and not issued to wards discharged of the alleged loan.
39. When the cheque was obtained in different circumstances, then the accused cannot be held liable for the conviction for the offence punishable under Section.138 of Negotiable Instruments Act.
40. In the case on hand also, there is no evidence placed before this court by the complainant to show that the Ex.P1 and P2 cheques were given by the accused towards discharge of the alleged debt of Rs.14,00,000/- only by proving the alleged transaction in between himself and the accused. Therefore, the accused is not liable for conviction. JUDGEMENT 32 C.C.10178/2017
41. Hence, the presumption on the existence of above noted the fact that Ex.P1 cheque was issued to the complainant to discharge of existed liability has been rebutted through sufficient evidence. Hence, onus shifted on the shoulder of the complainant, to prove the fact that there was existence of debt or liability in between the complainant and the accused and to prove the fact of advancement of alleged loan of Rs.14,00,000/- infavour of the accused by placing necessary evidence with regard to loan transaction beyond reasonable doubt, but as aforesaid discussion the complainant failed to prove the fact of lending loan of Rs.14,00,000/- infavour of the accused by placing any cogent and convincing evidence. Hence, with all these reasons, I am of the opinion that the complainant utterly failed to prove the guilt of the accused beyond reasonable doubt for the offence punishable under Section.138 of Negotiable Instruments Act. Hence, I answered Point No.1 in the Negative.
42. POINT NO.2: In view of my discussions on Point No.1 as above, I proceed to pass the following:
JUDGEMENT 33 C.C.10178/2017
ORDER Acting under Section.255(1) Cr.P.C., the accused is acquitted for the offence punishable under Section.138 of Negotiable Instruments Act.
The accused is set at liberty and his bail bond stands cancelled.
(Dictated to the stenographer and transcribed by him, corrected and then pronounced in open court by me on this the 27th day of March-2018.) (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Govindegowda Documents marked on behalf of the complainant:
Ex.P1&2 : Cheques
Ex.P3to7 : Endorsements
Ex.P8 : Legal Notice
Ex.P9 : Postal Receipt
Ex.P10 : Returned RPAD Cover with notice copy
Ex.P11 : Signature (behind the notice)
JUDGEMENT 34 C.C.10178/2017
Ex.P12 : Complaint
Ex.P13 : Ration Card
Ex.P14&15 : Bank Pass books
Ex.P16 : Demand promissory note
Ex.P17 : Consideration Receipt
Ex.P18(5) : RTC Extracts
Ex.P19 : Agreement
Ex.P20 : Loan Sanction Letter
Ex.P21 : Payment Receipt
Ex.P22&23 : Police complaints
Ex.P24&25 : Statements
Ex.P26to28: Acknowledgements issued by Police
Ex.P29 : Letter
Ex.P30 : Order sheet in PCR No.14396/17
Ex.P31 : Complaint copy in PCR No.14396/17
Witnesses examined on behalf of the accused:
- None -
Documents marked on behalf of the accused:
- Nil -
(C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.