Bangalore District Court
Mr.Keerthi Dev @ A.P.Kirthi Dev vs Sri.M.K.Raghavendra on 14 October, 2022
KABC030541482019
Presented on : 26-07-2019
Registered on : 26-07-2019
Decided on : 14-10-2022
Duration : 3 years, 2 months, 19 days
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
PRESENT: BHOLA PANDIT,
B.Com.,LL.M.,
XX ADDL. C.M.M.
Bengaluru.
Dated this the 14th day of October 2022
C.C.No.17064/2019
Complainant : Mr.Keerthi Dev @ A.P.Kirthi Dev,
S/o Prabhu Dev,
Major,
R/at.No.27, Ground Floor,
2nd Cross, Lalbagh Road,
Bengaluru- 560 027.
{ By Sri.Devaraja.A - Advocate }
2 C.C.17064/2019
Vs.
Accused : Sri.M.K.Raghavendra,
S/o late.M.S.Kodandaram,
Age 57 years,
R/at.No.1116, 9th Cross,
BSK 1st Stage, 2nd Block,
Ashoknagar,
Bengaluru- 560 050.
{ By Sri. C.P.Puttaraja - Advocate }
Offence complained : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is Acquitted
Date of Order : 14-10-2022
JUDGMENT
The present complaint is filed under section 2(d) read with section 200 of code of criminal procedure against the accused seeking to punish him for the offence punishable 3 C.C.17064/2019 under section 138 of the Negotiable Instruments Act ( in short referred as "N.I. Act").
02. The factual matrix of the complaint is summarized as under;
It is averred in the complaint that, the complainant and accused are family friends and in order to meet out personal problems and to medical expenses of his wife, the accused had borrowed an amount Rs.6,50,000/- hand loan from the complainant in part and part as under;
On 20.09.2016 the complainant had paid an amount of Rs.1,75,000/- by way of cash. Again after 10 days he had paid Rs.2,25,000/- by way of cash, on 20.12.2016 Rs.2,08,000/- paid to the account of wife of accused.
Totally, the complainant had paid an amount of Rs.6,08,000/- to the accused.
Further, the accused has promised to repay the said amount on or before June 2017. After expiry of the said 4 C.C.17064/2019 period, the accused did not repay the said amount. On consistent demands made by the complainant, the accused has issued a post dated cheque bearing No.000005 dated 09.04.2019 for a sum of Rs.6,08,000/- drawn on HDFC Bank, Rajarajeshwari Nagar Branch, Bengaluru in favour of the complainant. The complainant has presented the said cheque for encashment through his banker i.e., Canara Bank, Sampangiramangar Branch, Bengaluru and assured that, the said cheque would be presented within 20.07.2017 it would be honoured. In the mean while, the accused had issued legal notice dated 02.08.2017 through his Advocate asking for the return of the said cheque. Immediately, on 10.08.2017 the complainant and his father has met the accused and enquired about the said notice and at the same, the accused informed that, by mistake his Advocate has issued the said notice, but they assured about payment of Rs.6,08,000/-. Thereafter, on 06.04.2019 there was a family 5 C.C.17064/2019 discussion for receipt of the alleged hand loan between both the parties and at that time, the accused has instructed the complainant to present aforesaid cheque and got encashed the amount. Accordingly, on 09.04.2019, the complainant has presented the cheque for encashment, but it returned unpaid with banker's endorsement dated 15.04.2019 as "ACCOUNT CLOSED". On 08.05.2019, demand notice was issued to the accused by RPAD. The demand notice issued by RPAD has been returned to the complainant on 11.05.2019 it is endorsed that "Addressee Left" on 09.05.2019. On these grounds, it is sought to convict the accused for the offence punishable under section 138 of NI Act and to impose fine amount of Rs.12,16,000/-.
03. On presentation of complaint, this court has verified the averments of complaint along with records and thereby had taken cognizance for the offence punishable under 6 C.C.17064/2019 section 138 of NI Act. Thereby, as per the verdict of the Hon'ble Apex court reported in AIR 2014 SC 1983 in the case of Indian Bank Association and others V/s Union of India and others, the sworn statement of the complainant has been recorded as PW.1 and got exhibited eleven documents at Ex.P.01 to Ex.P.11. Having been made out the prima-facie case, the complaint has been registered in Register No. III and issued process against the accused.
04. In response to the summons, the accused put his appearance before the court through his counsel and filed bail application under section 436 of Code of Criminal Procedure, the accused has been enlarged on bail. The substance of accusation has been recorded and read over to the accused, he pleaded not guilty and intends to put forth his defense. On filing application by the complainant under section 145(1) of NI Act, sworn statement of the 7 C.C.17064/2019 complainant has been treated as examination in chief. Similarly, on filing application under section 145(2) of NI Act, the accused has been permitted to cross examine PW.1. On completion of the trial of the complainant's side, the statement of accused under section 313 of Code of Criminal Procedure has been recorded and read over to the accused, the incriminating material found in the trial of the case of the complainant, the accused has denied the same in toto. The accused also wants to lead his defense evidence. Similarly, the accused has filed his evidence in the form of affidavit. As per the judgment of the Hon'ble High Court of Karnataka in Cr.Pet.No.9331/2017 dated 02.07.2019 in the case of Vittal Sambrekar Vs. Manjunath, the accused is permitted to lead his defense evidence by way of affidavit and got exhibited six documents at Ex.D.1 to Ex.D.6.
8 C.C.17064/2019
05. Heard the oral argument of Learned counsel for the complainant. The Learned Defense Counsel has filed written argument. Perused the materials available on record.
In support of his written arguments, the Learned counsel for the accused relied the following judgment;
2010SCC online 54:(2010)2 Kant LJ 284:
(2011)AIR Kant R 434: (2010) 89 AIC 567 (B.Girish Vs. Ramaiah) Criminal Appeal No.1371/2007.
I have carefully and meticulously gone through the above relied precedents.
06. The following points that arise for my consideration are as under;
POINTS
1. Does the complainant proves beyond reasonable doubts that, the accused has issued a cheque bearing No.000005 dated 09.04.2019 for a sum of Rs.6,08,000/- towards the 9 C.C.17064/2019 discharge of his lawful liability of the complainant and when the said cheque was presented for encashment, it was returned unpaid due to "ACCOUNT CLOSED" in the account of the drawer as per banker's memo and inspite of issuance of demand notice , the accused has failed to pay the cheque amount, thereby has committed the offence punishable under section 138 of NI Act?
2. What Order or sentence ?
07. My findings to the above points is as follows;
1. Point No.1: In the negative
2. Point No.2: As per final order for the following;
REASONS
08. POINT No.1: It is the specific case of the complainant that, the accused had borrowed hand loan of Rs.6,08,000/- in cash from the complainant to meet his family necessities and towards discharge of the said hand loan amount, the accused has issued the disputed cheque and when the said cheque was presented for encashment, 10 C.C.17064/2019 it returned unpaid due to "ACCOUNT CLOSED" in the account of the drawer and inspite of receipt of demand notice, the accused has failed to make the payment of the cheque amount.
09. To substantiate and establish this fact before the court beyond reasonable doubts as per the verdict of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others , the sworn statement of the complainant has been treated as affidavit evidence. In his affidavit evidence, PW.1 has replicated the averments of the complainant. To corroborate the evidence of PW.1, the complainant has placed on record in all eleven documents as per Ex.P.1 to 11. Ex.P.1 is the disputed cheque dated 09.04.2019, Ex.P.1 (a) is the signature of accused, Ex.P.2 is the banker's memo dated 15.04.2019, which shows the reasons for the return of the cheque at Ex.P.1 for unpaid is as "ACCOUNT CLOSED" , Ex.P.3 is the 11 C.C.17064/2019 legal notice dated 08.05.2019 demanding for payment of cheque amount by replicating the averments of complaint, which is returned to the complainant's Advocate. Ex.P.4 & 5 are the the postal receipts about sending legal notice at Ex.P.3, Ex.P. 6 & 7 are the returned postal covers, Ex.P.6(a) & 7(a) are the notices inside the returned postal covers, Ex.P.8 is the courier receipt, Ex.P.9 is the reply notice , Ex.P.9(a) is the postal cover of the reply notice, Ex.P.10 is the legal notice dated 02.08.2017 issued by the accused to the complainant and Ex.P.11 is the bank account statement of the complainant. PW.1 has been substantially cross examined by the counsel of accused.
10. To disprove the case of the complainant as well as to rebut the statutory presumption which could be drawn in favour of the complainant and also to prove the probable defense to the touch stone of preponderance of probabilities, the accused adduced his oral evidence before the court by 12 C.C.17064/2019 way of filing his affidavit in the form of examination of chief as DW.1 and got marked six documents as per Ex.D.1 to 6. Ex.D.1 is the canceled cheque bearing No.000004, Ex.D.2 is the canceled e-stamp paper dated 06.12.2016, which was taken in the name of complainant and the accused as a first party and second party. Ex.D.3 is the attested copy of the endorsement issued by the Hanumanthanagara police, Ex.D.4 is the certified copy of the complaint issued before Hanumanthanagara police, Ex.D.5 is the notice dated 02.08.2017, Ex.D.5(a) & (b) are the postal receipt and postal acknowledgement and Ex.D.6 is the reply notice, Ex.D.6(a) & (b) are the postal receipt and postal acknowledgement. The Learned counsel for the complainant has cross examined DW.1 at length.
11. The Learned Defense Counsel vehemently argued that, by the oral evidence of accused as DW.1 and coupled with the documents produced at Ex.D.1 to 6, the 13 C.C.17064/2019 accused has proved his defense before the court and thereby ha successfully rebutted the legal presumption drawn in favour of the complainant. Therefore, he sought to acquit the accused.
Inter alia, the Learned counsel for the complainant strenuously contended that, in Ex.D.4, the wife of accused has admitted the transaction. Further as per Ex.P.11, it is very clear about advancement of loan amount to the accused. Further argued that, the evidence produced on record by the accused is not sufficient to hold that, the accused has rebutted the legal presumptions. Hence, it is sought to convict the accused.
12. Before to appreciate the rival contention of both the parties and also scrutinize the oral and documentary evidence placed on record, it is necessary to find out whether the present complaint has been filed in consonance with the provisions of section 138 of NI Act or 14 C.C.17064/2019 not?. On perusal of the cheque and memo at Ex.P.1 & 2 appears that, within its validity period, the cheque has been presented for encashment to the bank. On 08.05.2019, the demand notice issued and the postal cover at Ex.P.5 to 7 issued returned back to the sender as "addressee left". During entire cross examination of PW.1, nowhere a single suggestion has been made to PW.1 about the non service of legal notice. By considering the date of filing the complaint, I am of the considered opinion that, the present complaint filed in compliance of section 138 of NI Act.
13. Sections 118(a) & 139 of NI Act are two important provisions and they provides for raising mandatory presumptions in favour of the complainant until the contrary is proved by the accused. Even in the catena of decisions i.e., in the case of Rangappa Vs. Mohan reported in 2010(11) SCC 441, in the case of Bir Singh Vs. Mukesh Kumar reported in 2019(4) SCC 197, in the case 15 C.C.17064/2019 of APS Forex Services (P) Ltd., Vs.Shakthi International Fashion Linkers reported in 2020(12) SCC 724, in the case of Rajeshbai Muljibhai Patel Vs. State of Gujarat, reported in 2020(3) SCC 794, in the case of Triyambak S. Hegde Vs. Sripad reported in Live Law 2021 SC 492 and it is laid down that, " Once the issuance of cheque and the signature thereon is admitted by the accused, the court is required to raise presumption in favour of the complainant stating that, the accused has issued the cheque for some consideration towards discharge of his legal debt or liability of the complainant and that the complainant is the due holder of the said cheque. The burden shifts on the accused to rebut the statutory presumptions under sections 118(a) & 139 of NI Act." Now, it is well established law that, the presumption mandated by section 139 of NI Act, thus indeed includes the existence of legally enforceable debt or liability and it is open for the accused to raise a probable defense wherein the existence of legally 16 C.C.17064/2019 enforceable debt or liability can be contested and he shall prove before the court on preponderance of probabilities, only thereupon a statutory presumption raised in favour of the complainant stands rebutted.
14. In the land mark judgment of the Hon'ble Apex Court reported in AIR 2019 SC 1983 , in the case of Basalingappa Vs. Mudibasappa in para No.19, the top court of the country held that;
"Applying the rule of the word 'proved' under section 3 of Evidence Act, it became evident that in a trial under section 138, a prosecution will have to be made out every negotiable instrument was made or drawn for consideration and that it was extended for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges burden to prove that instrument was executed by the accused, the rules of presumptions under section 118 & 139 help him to shift the burden on the accused.
The presumptions will live, exists & survive & shall and only when the contrary is proved by the accused, that is the cheque was not issued for 17 C.C.17064/2019 consideration and in discharge of any debt or liability. A presumption itself is not evidence, but only makes a prima-facie case for a party to whose benefits it exists.
The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insists in every case the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated, but bare denial of the passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is possible has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration & debt did not exists or their non- existence was so probable, that a prudent man would under the circumstances of the case act upon the plea that they did not exists."
As per the verdicts of the Hon'ble Apex Court in the above relied judgments, now it is well settled law that, once the accused admits the issuance of the cheque and the 18 C.C.17064/2019 signature thereon, the court shall raise presumption in favour of the complainant stating that, the accused has issued the cheque for some consideration towards the discharge of legal debt or liability of the complainant and that the complainant is the due holder of the said cheque as payee. In the instant case on hand, during his cross examination on page No.7 at line No.7, the accused has clearly admitted that, the disputed cheque at Ex.P.1 belongs to him and it bears his signature. By this clear admission of accused, the legal presumption under section 118(a) & 139 of NI Act shall be raised in favour of the complainant that, the accused has issued the disputed cheque towards the discharge of legal debt or liability of the complainant. Now, the burden shifts on the accused to rebut the statutory presumption under section 118(a) & 139 of NI Act, which raised in favour of the complainant. the complainant himself has produced the copy of the legal notice issued by the accused to his demand notice and the 19 C.C.17064/2019 said reply notice is marked at Ex.P.9. In para No.8 & 9 of the reply notice it is contended by the accused that, on 20.12.2016, he borrowed hand loan of Rs.2,08,000/- from the complainant and at that time, the complainant has collected two cheques bearing Nos.000004 & 000005 drawn on HDFC Bank along with two stamp papers dated 06.12.2016 and 07.01.2017 as a security documents for repayment of hand loan of Rs.2,08,000/-. It is further contended that, on 20.03.2017, the accused has repaid entire hand loan amount of Rs.2,08,000/- along with interest and at that time, the complainant has returned his one blank cheque bearing No.000004 and one blank stamp paper dated 06.12.2016, but the cheque bearing No.000005 and blank stamp paper dated 07.01.2017 was not returned by the complainant and in this regard he has issued notice to the complainant on 02.08.2017 calling upon him for the return of those security documents and cheques. But, in respect of the said notice, the complainant 20 C.C.17064/2019 did not return his cheque and another document, instead by misusing the said cheque, he has filed the present complaint against the accused. This is the defense taken by the accused in the beginning itself and the accused has also adduced his oral evidence before the court by way of filing his affidavit evidence as DW.1. Wherein he has replicated the averments of para No.8 to 11 of his reply notice at Ex.P.9. The Learned Prosecuting Counsel much has cross examined DW.1, but nothing has been culled out from his mouth to accept the contention of the complainant that, the accused has received in all hand loan of Rs.06,08,000/- from the complainant as contended in the complaint. However, the accused has admitted his receiving of Rs.58,000/- and Rs.1,50,000/- from the bank account of the complainant. The complainant also produced before the court the bank account statement, which is marked at Ex.P.11, which discloses that, on 09.06.2016, the complainant has withdrawn an amount of 21 C.C.17064/2019 Rs.2,25,000/- from his bank account. Similarly, he has withdrawn another amount of Rs.2,15,000/- from his bnak account on 17.02.2016 by issuing self cheque to his bank. In order to accept the contention of the complainant that, out of Rs.06,08,000/- he has paid the amount of Rs.4,00,000/- by way of cash, no documentary evidence has been produced in this regard. The withdrawal of amount by the complainant from his bank account shall not lead any presumption that, the said withdrawal amount was given to the accused . On the other hand, the entries found in Ex.P.11 which got to make the payment of Rs.58,000/- and Rs.1,50,000/- through cheque is not refused by the accused and the said entry is also admitted by accused in his cross examination. Further, the accused also produced copy of legal notice dated 12.08.2017 marked at Ex.D.5, wherein the accused has demanded to the complainant for the return of his cheque bearing No.000005 and another blank stamp paper dated 07.01.2017 and when such 22 C.C.17064/2019 documents were not return to the accused, he lodged the complaint before jurisdictional police against the complainant, which is evident under Ex.D.3 & 4. Further, the accused has also produced the blank canceled cheque bearing No.000004 and blank canceled e-stamp paper dated 06.12.2016, these two documents very much corroborates the oral testimony of DW.1. By considering the oral evidence of DW.1 coupled with the documents at Ex.D.1 to 6, I am of the considered opinion that, the accused has raised in favour of the produced and the same has been proved before the court on preponderance of probabilities. The oral evidence of DW.1 inspires my confidence to believe his testimony as probable and I do not find any worth evidence evidence culled out during his cross examination, which could lead doubt in the veracity of this witness. Therefore, the accused has successfully rebutted the legal presumption raised in favour of the complainant. Now, the onus shifts on the complainant to 23 C.C.17064/2019 prove before the court beyond all reasonable doubts about the alleged advancement of hand loan of Rs.06,08,000/- to the accused . As per the oral evidence of PW.1 coupled with his bank account statement at Ex.P.11, the complainant has succesed in establishing only for the payment of Rs.2,08,000/- to the accused, but the complainant has totally failed to prove before the court about his remaining payment of Rs.4,00,000/- in cash to the accused and in this regard, nothing has been culled out from the mouth of PW.1 during his cross examination. Hence, I answered Point No.1 in the Negative.
15. POINT NO.2: In view of the above findings, this court proceed to pass the following;
O R DE R Acting under Section 255(1) of code of criminal procedure, the accused is 24 C.C.17064/2019 acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond of accused stands canceled subject to appeal period.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 14th day of October 2022}.
(BHOLA PANDIT) XX ACMM, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 Mr.Keerthi Dev @ A.P.Kirthi Dev, List of documents produced on behalf of complainant:
Ex.P.1 Cheque
Ex.P. 1(a) Signature of the accused
25 C.C.17064/2019
Ex.P. 2 Bank endorsement
Ex.P. 3 Copy of the legal notice
Ex.P. 4 & 5 Postal receipts
Ex.P. 6 & 7 Returned postal covers
Ex.P.6(a) & 7(a) Notices inside the returned
postal covers.
Ex.P.8 Courier receipt
Ex.P.9 Reply notice
Ex.P.10 Legal notice dated 02.08.2017
issued by the accused to the
complainant.
Ex.P.11 Bank account statement of the
complainant.
List of witnesses examined on behalf of accused:
D.W.1 M.K.Raghavendra 26 C.C.17064/2019 List of documents produced on behalf of accused:
Ex.D.1 Canceled cheque bearing
No.000004.
Ex.D.2 Canceled e-stamp paper dated
06.12.2016.
Ex.D.3 Attested copy of the endorsement
issued by the Hanumanthanagara
police.
Ex.D.4 Certified copy of the complaint
issued before Hanumanthanagara
police.
Ex.D.5 Legal notice dated 02.08.2017
Ex.D.5(a) & (b) Postal receipt and postal
acknowledgement.
Ex.D.6 Reply notice
Ex.D.6(a) & (b) Postal receipt and postal
acknowledgement.
XX A.C.M.M.,
Bengaluru.