Bangalore District Court
Murphy Town vs Layout on 14 November, 2022
1
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
PRESENT
SRI.OONKAR MURTHY K.M.,
B.Sc., L.L.M.,
XIV ADDL. C.M.M., BENGALURU
DATED THIS THE 14 th DAY OF NOVEMBER, 2022
CASE NO C.C. NO.58194/2019
Smt. Rebecca Dhanasingh
Ground Floor, No.002, Shri Ashram View
Enclave, 15/3, Kulume Siddanna Garden,
COMPLAINANT Murphy Town, Halasuru, Bengaluru - 560
008.
(By Sri. K. Jesu Prasad - Adv.,)
Sri. Dinesh Kumar
C/o. Sri Suresh Kumar
No.304, "Mangam Paradise", Sec.2, H.S.R.
ACCUSED Layout, Bengaluru.
Mob : 77383 81788
(By Sri. K.R.Nagaraja - Adv.,)
Offense U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is acquitted
(OONKAR MURTHY K.M)
XIV ADDL.C.M.M.,BENGALURU
2
JUDGMENT
The complainant has approached this court with the complaint under Sec.200 Cr.PC against the accused alleging offense punishable under Section 138 of Negotiable Instruments Act, 1881.
The factual matrix of the case are as follows ;
2. The accused has issued a cheque bearing No.007145 dtd.31.07.2019 for Rs.7,50,000/- drawn at ICICI Bank, HSR Layout branch, Bengaluru, towards second part payment of loan of Rs.15 lakhs borrowed by him earlier. When the said cheque was presented for encashment through her banker i.e., Syndicate Bank, Ashok Nagar branch, Bengaluru to her savings Account No.04182010058613, the same has been returned dishonoured with bank endorsement dt;01.08.2019 for the reason "payment stopped by drawer". Thereafter, the complainant has issued legal notice on 27.08.2019 to the accused and the same has been served on the accused. But the accused has not paid the cheque amount and thereby has committed the 3 offense punishable under Sec.138 of Negotiable Instruments Act, 1881. Hence the complaint.
3. On filing of the complaint, cognizance has been taken for the offense punishable under Sec.138 of Negotiable Instruments Act, 1881 and a private complaint was registered in PCR.No.55569/2019. Sworn statement of the complainant has been recorded by way of affidavit. On hearing the complainant and by considering the documents on record, summons was issued to the accused by registering the criminal case in C.C. No.58194/2019. After service of summons, the accused has appeared before the court through his counsel and has pleaded for bail. The accused has been enlarged on bail. Plea of the accused has been recorded and accused h a s pleaded not guilty and h a s claimed to be tried. Hence the matter was posted for trial.
4. The sworn statement of the complainant who is examined as CW.1 has been treated as his examination-in-chief in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 -
4Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. CW.1 to prove the guilt against the accused, has relied on the documents marked at Ex.P1 to Ex.P6. Incriminating circumstances in the evidence of CW.1 have been brought to the notice of the accused and his statement under Sec.313 of Cr.PC was recorded. The accused has denied the incriminating circumstances and has stated that he has not borrowed anything from the complainant and a false case is filed against him. On the contrary, to substantiate his contention, the accused has examined himself as DW.1 and relied on documents marked at Ex.D1 to D10.
5. Heard the arguments of both the counsels. Perused the materials on record.
6. The counsel for the complainant has relied on the following authorities;
1. D. Vinod Shivappa Vs Nanda Belliappa
- (2006 (5) Kar. L.J. 32 (SC)
2. T. Kumar Vs K. Chennakeshavulu -
(2021 (3) KCCR 2134) 5
3. M. Nagappa Vs Mohamad Aslam Savanur
- (2021 (3) Kar. L.J. 567)
4. H.G. Nagaraja Vs H. Suresh Naika -
(2019 (5) KCCR 1228
5. M/s. S.T.P Ltd., Vs M/s. Usha Paints & Decorators and another - (2006 (5) AIR Kar R 28)
6. G.L. Jagadish Vs Smt. Vasantha Kokila - (2021 (5) KCCR 690)
7. Seetharama Gowda .A Vs Isubu Kunhammade - (2021 (2) KCCR SN 119 (DB)
8. H.K. Ismail Vs V.B. Onkar - [(III (2022) BC 151 (Kar.)]
9. APS Forex Services Pvt. Ltd., Vs Shakti International Fashion Linkers and others - (AIR 2020 SC
945)
10. Rohitbhai Jivanlal Patel Vs State of Gujarat and another - (AIR 2019 SC 1876)
11. Vijay Gopala Lohar Vs Pandurang Ramchandra Ghorpade and another -
(AIR 2019 SC 3272)
12. Noble T. Francis Vs Seleena Jos - (2005 CRI. L.J. 993)
13. Shafi Mohammad Vs State of Himachal Pradesh; (2018) 2 SCC 801.
614. K. Kuppuraj Vs J. Thrilokamurthy - (2021 (1) KCCR 542)
15. Muralidhar Rao Vs P. Nagesh Rao -
(2021 (2) Kar. L.J. 647)
16. G.L. Jagadish Vs Smt.Vasantha Kokila
- (2021(5) KCCR 690
17. Arun Pandurang Naik Vs Gopal Sidram Sheet - (2020 (3) KCCR 2109)
18. Rangappa Vs Sri. Mohan [(2010) 11 SCC 441]
19. M/s. Ambur Steel Traders rep. By its Partner Vs Engineer C. Noorulla -
(2002 (3) Crimes 453)
20. NEPC Micon Ltd., & others Vs MAGMA Leasing Ltd. - [(1999) 4 SCC 253]
7. The counsel for the accused has relied on the following authorities;
1. Basalingappa Vs Mudibasappa - (Crl.
Appeal No.636 of 2019
2. John K. Abraham Vs Simon C. Abraham and another - [(2014) 2 SCC 236]
3. Kumar Exports Vs Sharma Carpets - [(2009) 2 SCC 513]
4. K. Narayana Nayak Vs M. Shivarama Shetty
- (2008 CRI. L.J. 3411) 7
5. Sri. Shivalingappa Vs Sri. Basagonda -
(Crl. A. No.2637 of 2009 (A)
6. Sri. Mallappa Gangappa Halingali Vs Sri. Basavaraj Murigeppa Gani - (Crl. A. No.2558/2009)
7. Shiva Murthy Vs Amruthraj - (Crl. Rev. Pet. No.1507/2005)
8. Shri. Madanmohan Premratan Mohta Vs Shri.Dattaram D. Vernekar - (Crl. A. No.2531/2013)
9. B. Shivaram Vs M.V. Venkatesh - (Crl. A. No.743/2010)
10. M. Senguttuvan Vs Mahadeva Swamy -
(ILR 2007 Kar 2709)
11. B. Indramma Vs Sri. Eshwar - (ILR 2009 Kar 2331)
12. H. Manjunatha Vs Sri. A.M. Basavaraju -
(ILR 2014 Kar 6572)
13. Kundan Lal Rallaram Vs Custodian Evacuee Property, Bombay - (AIR 1961 SC 1316)
14. M.S. Narayana Menon @ Mani Vs State of Kerala and another - [(2006) 6 SCC 39]
15. Kamala. S Vs Vidyadharan M.J. and another - [(2007) 5 SCC 264] 8
8. The points that arise for my consideration are:-
1) Whether the complainant proves that the accused has issued a cheque bearing No.007145 dtd.31.07.2019 for Rs.7,50,000/- drawn at ICICI Bank, HSR Layout branch, Bengaluru for discharge of legally recoverable debt and the said cheque was dishonored for the reason "payment stopped by drawer". In spite of issuance of statutory notice dated 27.08.2019, accused has failed to repay the loan amount and thereby the accused has committed the offense punishable under Sec.138 of N.I. Act, 1881?
2) What Order?
9. My findings on the above points are as under;
Point No.1 : In Negative,
Point No.2 : As per final order,
for the following.,
REASONS
10. Point No.1: The complainant to substantiate her case has examined herself as CW.1 and reiterated 9 the averments of the complaint in her chief examination. Further has produced original cheque bearing No.007145 dtd.31.07.2019 for Rs.7,50,000/- at Ex.P1. Ex.P2 is the bank endorsement dtd.01.08.2019 wherein the said cheque has been dishonored for the reason "payment stopped by drawer". Ex.P3 is the legal notice dtd.27.08.2019 to the accused demanding the cheque amount within 15 days of its receipt. Ex.P4 is the postal receipt showing dispatch of said legal notice to the accused on 30.08.2019. Ex.P5 is the postal acknowledgment showing service of notice to accused on 31.08.2019. Ex.P6 is the track consignment report taken out from the postal web-site wherein notice is shown to be served on 31.08.2019. In the cross-examination, the suggestion that cheques have been issued by the accused under police coercion as security towards the lease amount to be paid to the complainant by his brother-Suresh Kumar has been denied. Also has denied the suggestions that the accused has no acquaintance with the complainant; no loan has been lent to the accused; no 10 legal notice is served on the accused and the complainant has no financial capacity to lend loan.
Principles:
11. In Kumar Exports case cited supra relied upon by the counsel for the accused, the Hon'ble Supreme Court in para 19 to 21 has held as follows;
Para 19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume"
and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
Para 20.The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt 11 as is expected of the complainant in a criminal trial. 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 insist in every case that 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. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable 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 and debt did not exist 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 exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Section 118 and 139 of the Act.12
Para 21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Section 118 and 139 of the Act will not again come to the complainant's rescue.
12. In APS Forex Services Pvt. Ltd.,'s case cited supra relied upon by the counsel for the complainant, the Hon'ble Supreme Court in para 7 has held as follows;
Para 7. Section 139 of the Act is an example of reverse onus clause and therefore once the issuance of the cheque has been admitted and even the signature on the cheque has been admitted, there is always a presumption in favour of the complainant that there exists legally enforceable debt or liability and thereafter it is for the accused to rebut such presumption by leading evidence.
1313. The ratio laid down in the above precedents is that in respect of the proof of the fact that the cheque has been issued for discharge of legally enforceable debt, there is a presumption of law under Sec.139 of Negotiable Instruments Act, 1881 in favour of the holder of the cheque which reads as follows:
Sec.139 - Presumption in favour of holder: it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.
14. The presumption under Sec.139 of Negotiable Instruments Act is a presumption of law and not the presumption of fact. The presumption has to be raised in all the cases once the factum of issuance of cheque and its dishonour is established. The presumption is a rebuttable. The onus of proof to rebut the presumption lies on the accused. The accused need not rebut the presumption beyond all reasonable doubt. But the accused has to place 14 sufficient materials to convince the court that his case is more probable when it is compared with the case of the complainant. Accused may adduce direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability. He may also rely upon the averments in the complaint, statutory notice and the circumstantial evidence adduced by the complainant during the trial. Accused need not enter into the witness box to rebut the presumption.
Defense of the accused:
15. On the basis of the suggestions made in the cross-examination of CW.1 by the counsel for the accused, chief-examination of DW.1 and arguments addressed on behalf of the accused, the defense taken up by the accused has been deduced as follows;
* Due to non-payment of lease amount to the complainant by the brother of the accused i.e., Suresh Kumar, the complainant has lodged complaint against him on 09.05.2019 which was initially registered as NCR No.571/2019 15 and later as per the instruction of Assistant Commissioner of Police, Halasuru Sub Division, was registered as Cr. No.159/2019 for the offense punishable under Sec.406 and 420 of IPC. On 01.06.2019 Suresh Kumar was detained by Halasuru Police. On the request of his brother, he had been to Halasuru Police Station. Assistant Commissioner of Police, for release of his brother, insisted him to give two post dated, filled and signed cheques for Rs.7,50,000/- each as security towards payment of lease amount by his brother. Therefore, he has issued the alleged cheque under coercion.
* There is no acquaintance of the accused with the complainant and no loan has been borrowed from the complainant.
* Legal Notice has not been served upon him.
* No financial capacity to lend loan.
Existence of Legally Recoverable Debt:
16. The accused to substantiate his contentions has examined himself as DW.1. The sole contention of the accused is that when his brother Suresh Kumar was detained by Halasuru Police on 01.06.2019, at the instance of the Assistant Commissioner of Police 16 for release of his brother, he has issued two post dated filled and signed cheques of Rs.7,50,000/-each as security towards payment of the lease amount which was due to the complainant from his brother Suresh Kumar. In his cross-examination DW.1 states that for the first time he has seen the complainant on 01.06.2019 at Halasuru Police Station and he was not having any acquaintance with the complainant earlier to it. To substantiate the said contention, the accused has produced copy of the complaint dated 09.05.2019 at Ex.D1 lodged by the complainant before Halasuru Police Station against the brother of accused Suresh Kumar with the allegations that he has not repaid lease amount in respect of the property bearing No.GO2, Shri Ashram View Enclave, 15/3, Kulume Siddanna Garden, Murphy Road, Halasuru, Bengaluru. It is stated that Suresh Kumar had availed loan from Hanumanth Nagar Co-operative Bank on 04.05.2018 mortgaging the said house premises and the bank has issued paper publication on 24.02.2019 for having taken the symbolic possession of the tenanted 17 premises and therefore has sought take necessary action against Suresh Kumar for return of lease amount of Rs.15 lakhs to her. Ex.D1 is not disputed by the complainant. The said document show that initially her complaint was registered in NCR No.571/2019. Ex.D4 is also complaint filed by the complainant to the Additional Commissioner of Police, East Zone, Bengaluru on the same allegation. The said document also disclose that the ACP., Halasuru has directed the Halasuru Police to take appropriate action for which Cr. No.159/2019 has been registered on 16.05.2019 as per FIR at Ex.D3. Ex.D9 is the charge sheet filed against the accused and his brother. The allegations in the charge sheet is extract below for better appreciation.
ಈ ದದದದಷಷರದದದಪಣ ಪಟಟಯ ಕಷಲಲ 2 ರಲಲರರವ ಆರದದದಪತನರ ಬದಲಗಳದರರ ನಗರ ಹಲಸದರರ ಪದಲಸಸ ಠಷಣಷ ಸರಹದದನಲಲರರವ ನಲ.ಜ02, ಆಶಶಮ ವದವಸ ಎನನನದವಸ, 15/3, ಕರಲರಮ ಸದದಣಣ ಗಷಡನರ, ತಷಮರದರ ಕಣಣನಸ ರಸದಸ, ಹಲಸದರರ, ಬದಲಗಳದರರ. ಈ ವಳಷಸದ ತನನ ಮನದಯನರನ ಸಷಕಕ 1 ರವರದಗದ ದನಷಲಕಕ 15/09/2017 ರಲದ ದನಷಲಕಕ 14/09/2020 ರ ಅವಧಗದ ಲದಸಸ ಅಗಶಮಲಟಸ ಮಷಡಕದದಲಡರ 15 ಲಕಕ ರದ. ಗಳಗದ ಸದರ 18 ಮನದಯನರನ ಸಷಕಕ 1 ರವರದಗದ, ಭದದದಗಗಕದಕ ನದಡದರದ, ಆರದದದಪತನರ 2018 ರಲಲ ಸದರ ಸಸರಷಸಸಯನರನ (ಮನದಯನರನನ) ದ ಹನರಮಲತನಗರ ಸಹಕಷರ ಬಷಗಲಕಸ ನಯಮತ ಗದ ಅಡಮಷನವಟರಟ ಸಷಲ ಪಡದದರಕದದಲಡರ, ಸಷಲ ಮರರಪಷವತ ಮಷಡದದದ ಇದರದದರಲದ, ಸದರ ಬಷಗಲಕನವರರ ಸಷಕಕ 1 ರವರ ವಳಷಸಕದಕ ನದದದಟಸಸ ನದಡ, ಮನದಯನರನ ಬಷಗಲಕಸ ವಶಕದಕ ಪಡದದರಕದದಳರಳವವದಷಗ ತಳಸದರದ, ಆರದದದಪತನರ ತನನ ಮನದಯನರನ ಸಷಕಕ 1 ರವರ ಭದದದಗಗಕದಕ ನದಡ 15 ಲಕಕ ರದ. ಪಡದದರಕದದಲಡರ, ನಲತರ ಸದರ ಮನದಯ ಮದಲದ ಬಷಗಲಕಸ ನದಡದ ಸಷಲ ಪಡದದರಕದದಲಡರ ಸಷಲ ಮರರಪಷವತ ಮಷಡದದದ, ನಲಬಕದ ದದದಶದಹವದಸಗ ವಲಚಸರರತಷಸನದ. ಹಷಗದ ಪಶಕರಣ ದಷಖಷಲಸದ ನಲತರ ಆರದದದಪತನರ ತನನ ಸಹದದದದರ ದನದದಶಸ ಕರಮಷರಸ ಎಲಬ ಹದಸರನಲಲರರವ ಐ,ಸ.ಐ.ಸ.ಐ. ಬಷಗಲಕನ ಎರಡರ ಚಕರಕಗಳರ ಹಷಗದ ತನನ ಹಸರನಲಲರರವ ಎರಡರ ಐ.ಸ.ಐ.ಸ.ಐ. ಬಷಗಲಕನ ಚಕರಕಗಳನರನ ಸಷಕಕ-1 ರವರಗದ ಕಳರಹಸದರದ, ಸದರ ಚಕರಕಗಳನರನ ಬಷಗಲಕಸ ನಲಲ ಹಷಕಲಷಗ ಖಷತದ ಸಷಟಪಸ ಪದದಮಲಟಸ ಅಗದರದ , ಆರದದದಪ ನಲ.1 ಮತರಸ 2 ರವರರ ಸಷಕಕ-1 ರವರಗದ ಹಣ ವಷಪಸಸ ಕದದಡರವವದಷಗ ನಲಬಸ, ಚಕಸ ನದಡ ಮದಸ ಮಷಡರವ ಸಮಷನ ಉದದದದಶದಲದ ಸಷಕಕ-1 ರವರಗದ ನಲಬಕದ ದದದಶದಹ ವದಸಗ ವಲಚಸರರವವದರ ಸಷಕಷಕಕಧಷರಗಳಲದ ದದಡಪಟಟರರತಸದದ.
(emphasis supplied)
17. In the charge sheet, it is alleged that elder brother of the accused i.e., Suresh Kumar had issued two cheques of ICICI Bank belonging to his brother Dinesh Kumar i.e., (present accused) to the 19 complainant and also issued two cheques pertaining to himself in favour of the complainant towards repayment of lease amount of Rs.15 lakhs, thereafter has obstructed the payment by issuing stop payment instructions to the bank and thereby has cheated the complainant.
18. Ex.D10 is the certified copy of further statement of the present complainant Smt.Rebecca Dhanasingh in Cr. No.159/2019 recorded on 22.07.2019 by Halasuru Police. The contents of the said statement disclose that after lodging of the complaint by her, on 01.06.2019 the present accused along with his brother Suresh Kumar came near her house and has issued two cheques bearing No.007146 and 007145 pertaining to the present accused Dinesh Kumar by mentioning the date as 15.07.2019 and 31.07.2019 and has requested to withdraw the complaint for which she replied stating that after encashment of the cheques, she will withdraw the case and will vacate the house premises. The said cheques were dishonoured. Brother of the accused 20 Suresh Kumar on 15.07.2019 at about 1.00 P.M had sent his two cheques drawn at ICICI Bank and said two cheques were also bounced for the reason "payment stopped" and for want of sufficient funds.
19. No doubt that the statement of the complainant recorded by Halasuru Police can be utilized only for the purpose of contradicting the witness. But on the basis of the further statement, Halasuru Police after investigation have also filed charge sheet produced at Ex.D9 wherein the allegation made in the charge sheet is same as that of the allegation made in further statement at Ex.D10. Both these documents casts reasonable doubt on the case of the complainant and thereby the accused has rebutted the presumption U/s. 139 of N.I. Act available to the complainant. Therefore, the onus shifts upon the complainant to prove her case beyond all reasonable doubt.
20. Now it is for me to consider whether the complainant has proved her case beyond all 21 reasonable doubt against the accused. The complainant contends that the accused Dinesh Kumar had borrowed loan of Rs.15 lakhs to the accused for managing some of his financial exigencies. In the complaint nowhere it is stated that when and where the accused approached her for loan. Also has not disclosed the date of which the loan was lent. In the cross-examination CW.1 states that she has lent loan in installments from the year 2018 to 2019. Further states that when she gave money during the year 2018, the accused has not issued any cheque to her; the alleged cheque was issued by the accused in the month of April 2019 and the mobile phone number which is mentioned in the cause title of the complaint is of the accused's brother and not of the accused. Further states that since brother of the accused came along with the accused, she did not make enquiry about the accused. Further states that on the request of the accused, she has paid entire Rs.15 lakhs in cash and she do not know for what purpose the accused has raised the loan.
2221. In the cross-examination of DW.1, counsel for the accused has suggested that the accused has received Rs.7,50,000/- twice for helping his brother Suresh Kumar and the said suggestion has been denied. The said suggestion goes against the contention of the complainant that the accused has raised money for managing some of his financial exigencies. CW.1 in her cross-examination clearly admits that she had also filed other two complaints against the brother of the accused.
22. CW1 states that she has lent the loan to the accused for the reason that he had approached her through her brother who is owner of the house in which she is on lease. As per the complaint lodged by the complainant at Ex.D1, the Bank has issued paper publication on 24.02.2019 taking symbolic possession of the premises in which the complainant is on lease. Therefore, it cannot be a normal conduct of a person to lend loan through the accused's brother from whom lease amount of Rs.15,00,000/- was due.
2323. On critical evaluation of the entire evidence of the complainant produced before the court, the complainant had no basic information in respect of the whereabouts of the present accused. Even though it is stated that the complainant has paid Rs.15 lakhs to the accused in cash, except oral assertion, there is nothing on record to substantiate the same more particularly when the said fact has been rebutted by the accused by producing the certified copies of the charge sheet and further statement of the complainant at Ex.D9 and D10. There is no specificity as to on what date and place money has been lent to the accused. CW.1 in her cross-examination states that she has lent money in instalments during the year 2018 to 2019. On the contrary, the counsel for the accused in the cross-examination of DW.1 suggests that the accused has received Rs.7,50,000/- twice from the complainant to help his brother Suresh Kumar. Under the circumstances, there are no materials on records to show passing of consideration of Rs.15 lakhs to the accused beyond all reasonable 24 doubt. Therefore defense of the accused seems to be more probable than that of the case of the complainant.
Defense - Complainant has no Financial Capacity to lend:
24. The counsel for the accused has argued that the complainant has no financial capacity. In Basalingappa's case cited supra relied upon by the counsel for the accused, the Hon'ble Supreme Court in para 28 has held as follows;
Para 28. ........his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity.
25. In John K. Abraham's case cited supra relied upon by the counsel for the accused, the Hon'ble Supreme Court in para 9 has held as follows;
Para 9. It has to be stated that in order to draw the presumption under Section 118 read along with 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and 25 that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant.
26. In Rohitbhai Jivanlal Patel's case cited supra relied upon by the counsel for the complainant, the Hon'ble Supreme Court in para 17 has held as follows;
Point No.17. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused- appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence.
27. In the case on hand the accused has successfully rebutted the passing of consideration. However in the cross-examination of CW.1, it is 26 elicited that the complainant is having income of Rs.5,000/- to Rs.25,000/- per month and has an expenditure of Rs.15,000/- per month. It is also elicited that daughter of the complainant is earning Rs.30,000/- per month and she is giving her income to the complainant. It is not disputed that the complainant has paid Rs.15,00,000/- to the brother of the accused towards lease of the house. It is also elicited that the complainant's daughter has purchased the house belonging to the accused's brother in which the complainant is on lease. Under the circumstances, there is nothing on record to doubt the financial capacity of the complainant. But, when it is shown that there are no materials to infer passing of the consideration, the contention that the complainant has no financial capacity has no relevancy in adjudicating the matter.
Non-Service of Notice to the Accused:
28. The counsel for the accused has argued that there is no service of statutory notice to the accused 27 and therefore ingredients of Sec.138 of Negotiable Instruments Act has not been complied. It is contended that the notice is sent to the address of brother of the accused and not of the accused. It is also contended that the accused is residing in the address No.306, Near Brindavan Annexe, 3 rd Cross, Reliable Residency Layout, Phase - 2, Haralur, HSR Layout, Bengaluru South, Bengaluru - 560 102. To show that he is residing in the said address, the accused has produced notarized copy of his Aadhaar Card at Ex.D6 wherein the above said address of accused is mentioned. Ex.D8 is the copy of the sale deed dated 18.03.2015 showing that the accused has purchased residential apartment in the above said address. Therefore, the accused contends that from 18.03.2015, he is residing in the above mentioned address and notice has not been sent to his address.
29. The complainant has produced legal notice at Ex.P3 wherein the address is mentioned as "Sri.Dinesh Kumar, C/o. Sri. S. Suresh, 304, Mangam Pride, Sec.2, H.S.R. Layout, Bangalore" which is the 28 address of the accused given in the complaint. The said address mentioned in the notice and in the complaint is different from the address mentioned in the Aadhaar Card of accused at Ex.D6. However even though the address mentioned in the complaint is contended to be not the correct address of the accused, he has appeared before the court and has contested the matter. To ascertain whether there is valid issuance of statutory notice U/s.138(b) of N.I. Act, I would like to rely upon the decision in the case of T.Kumar Vs K. Chennakeshavulu - (2021 (2) AKR 219) at para 16 our Hon'ble High Court has held as follows;
Para 16. When the matter was referred to the Larger Bench of the Hon'ble Supreme Court in C.C.Alavi Haji V. Palapetty Muhammed and Anr.(2007) Cri LJ 3214 answering the reference in para 17 of the judgment it was held as follows:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the 29 complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the 'giving of notice' in the context of Clause (b) of the proviso was the same as the 'receipt of notice' a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
(Emphasis supplied by me)
30. In the case on hand, even though the accused has disputed the correctness of his address and has produced some documents showing his different address, it is not forthcoming as to on what basis he has appeared before this court in the present matter even if the address shown in the complaint is 30 not correct. The complainant has clearly shown that after dishonour of the cheque, statutory notice at Ex.P3 has been issued on 27.08.2019 as could be ascertained from the postal receipt at Ex.P4 and the same is shown to be delivered on 31.08.2019 as could be ascertained from track consignment report of postal department produced at Ex.P6. When the accused has appeared before the court and contested the matter, due service of legal notice shall be inferred. Therefore, the contention of the accused that notice has not been served upon him cannot be appreciated.
31. The complainant and accused have relied on many decisions cited supra. I have gone through all the decisions and with great respect I humbly opine that the decisions are either reiteration of the same principles already discussed or not applicable to the facts and circumstances of this case. Therefore, the said decisions have not been discussed in detail to avoid burdening of the judgment.
31Conclusion:
32. The accused by producing the certified copy of charge sheet at Ex.D9 and further statement of the complainant at Ex.D10 has shown that the alleged cheque was issued by the accused as a security towards payment of the lease amount to be paid by his brother Suresh Kumar to the complainant. The case of the accused rests upon the principles of preponderance of probabilities. The defense of the accused is shown to be more probable rather than the case of the complainant. The accused has rebutted the statutory presumption available under section 118 and 139 of NI Act in favour of the complainant. In spite of such rebuttal and the onus being shifted upon the complainant to prove her case beyond all reasonable doubt, nothing has been brought on record to show that the complainant has lent loan of Rs.15 lakhs to the accused. Under the circumstances, the complainant has failed to prove the existence of legally recoverable debt from the accused and therefore, I hold Point No.1 in Negative.
3233. Point No.2: In view of the discussions made while answering Point No.1, I proceed to pass the following.., ORDER In exercise of power vested under section 255(1) of Cr.P.C., I hereby acquit the accused for the offense punishable under Sec.138 of Negotiable Instruments Act, 1881.
The bail bond of the
accused and his surety stands
canceled.
(Dictated to the stenographer, transcribed thereof, computerized and print out taken by him is verified, corrected and then pronounced by me in open court on this the 14 th day of November, 2022) (OONKAR MURTHY K.M) XIV ADDL. C.M.M.,BENGALURU 33 ANNEXURE List of witnesses examined by complainant:
CW.1 : Smt. Rebecca Dhanasingh List of documents marked by complainant:
Ex.P1 : Cheque Ex.P1(a) : Signature of the accused Ex.P2 : Bank endorsement Ex.P3 : Legal Notice Ex.P4 : Postal receipt Ex.P5 : Postal acknowledgment Ex.P6 : Track consignment report
List of witnesses examined by defence:
DW.1 : Sri. Dinesh Kumar .S List of documents marked by defence:
Ex.D1 : Certified copy of complaint Ex.D2 : Certified copy of acknowledgement Ex.D3 : Certified copy of F.I.R Ex.D4 : Certified copy of complaint Ex.D5 : Certified copy of order on bail petition in Crl. Mis. No.8251/2021 34 Ex.D6 : Notarized copy of Aadhaar Card Ex.D7 : Notarized copy of Employee I.D Ex.D8 : Notarized copy of Sale Deed Ex.D9 : Certified copy of Charge Sheet Ex.D10 : Certified copy of further statement (OONKAR MURTHY K.M) XIV ADDL. C.M.M., BENGALURU