Bangalore District Court
Sri.D.Krishnappa vs Sri. Shaik Silaiman on 4 November, 2020
IN THE COURT OF THE XVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
PRESENT: MANJUNATHA.K.P, B.A.L, LL.B.
XVIII ADDL.C.M.M., BENGALURU
DATED : THIS THE 4th DAY OF NOVEMBER 2020
C.C.NO: 24469/2016
COMPLAINANT:- Sri.D.Krishnappa,
S/o Late Dasappa,
Aged about 65 years,
R/at No.140, Narasipura,
Main Road, Vidyaranyapura,
Bangalore-97.
(Rept by Sri.JM -Advocate)
V/s.
ACCUSED:- Sri. Shaik Silaiman,
S/o Shaik Khasim,
Aged about 48 years,
R/at No.243, 9th Main,
NarasipuraMain Road,
Vidyaranyapura,
Bangalore-97.
(Rept by Sri.BRV , Advocate)
JUDGMENT
The complainant has presented the complaint under Section 200 of Cr.P.C against the accused for the alleged offence punishable under Section 138 of N.I. Act.
2) The brief facts of the complainant's case is that:-
The complainant knows the accused and he is close friend from several years. The accused faced acute shortage of 2 C.C.NO:24469-2016 funds for domestic needs and also for his business purpose he requested the complainant for loan of Rs.10,00,000/- in the month of March 2016 and agreed to repay the same within four months. The complainant has given a sum of Rs.10,00,000/- to the accused by way of cash on 30.3.2016. At the time of borrowing the loan the accused has also executed one one demand Promissory note and consideration receipt. Thereafter, the complainant has requested the accused as herein to repay the said loan. The accused has assured to repay the same shortly. But the accused failed to repay as per his assurance and ultimately the accused has issued account payee cheque bearing No. 847969 dated 8.8.2016 drawn on Axis Bank Ltd., Yelahanka Branch, Bangalore-64 and intimate the complainant to present the above said cheque it will be honoured. As per the instructions of the accused , the complainant presented the above said cheque for encashment, it was dishonored with an endorsement "DRAWERS SIGNATURE DIFFERS" on 13/10/2016. Thereafter the complainant issued legal notice on 18/10/2016 calling upon the accused to make payment of the dishonoured cheque amount and the said notice was 3 C.C.NO:24469-2016 duly served on the accused. In spite of service of notice, the accused has not complied the same. Hence, complainant is constrained to file this private complaint for the said relief.
3) After receipt of complaint, this court has taken cognizance of the alleged offence and sworn statement of complainant was recorded and process was issued to the accused. He was appeared through his counsel and enlarged on bail and all papers were supplied to him. The substance of plea was recorded and read over and explained in Kannada language to the accused, to which he pleads not guilty and claims to be tried. Hence, posted the case for complainant evidence.
4) In order to prove the complainant case, complainant was examined as P.W.1 and he exhibited Ex.P.1 to Ex.P.10 documents and closed his side.
Thereafter, the statement of accused under Section 313 of Cr.P.C is recorded, read over and explained in Kannada language to which accused has denied the entire incriminating evidence which appears against him. Per contra, accused examined as DW1 and he exhibited Ex.D1 4 C.C.NO:24469-2016 to 6 documents. Out of them Ex.D.1 to 5 documents are marked in the cross-examination of PW1 by way of confrontation. Thereafter, the case is posted for arguments.
5) Heard the arguments on both sides and perused the entire papers.
6) Now, the following points that arises for my consideration are:-
1) Whether the complainant has made out all the ingredients of Section 138 of N.I. Act to prove the guilt of the accused person?
2) What order?
7) My answer to the above points are as follows:-
POINT NO.1 : In the Negative POINT NO.2 : As per final order, for the following:-
REASONS
8) POINT NO.1:- As the brief facts of the
complainant's case as already stated above, hence I need not repeat the same facts once again to avoid the repetition of the same facts.5 C.C.NO:24469-2016
9) To bring home guilt against the accused, the complainant/prosecution must prove the following ingredients of Section 138 of N.I. Act.
i) That there is a legally enforceable debt.
ii) That the cheque was drawn from account of Bank for discharge in whole or in part of any debt or other liability which presuppose a legally enforceable debt;
iii) Cheque so issued had been returned due to insufficiency of funds.
10) To prove the aforesaid ingredients of Section 138 of N.I. Act, the complainant filed his chief affidavit and examined as P.W.1. In his chief examination affidavit he reiterated the entire averments of the complaint. In support of his case he has exhibited Ex.P.1 to Ex.P.10 documents.
Ex.P.1 is the cheque, Ex.P.2 is Bank endorsement, Ex.P.3 legal notice, Ex.P.4 postal receipt, Ex.P.5 complaint given to the post master, Ex.P.6 Enquiry particulars of postal departments, Ex.P.7 on demand and consideration receipt, Ex.P.8 reply notice, Ex.P.9 is RPAD postal cover, Ex.P.10 lease agreement.
6 C.C.NO:24469-2016
11) On careful perusal of the entire oral and documentary evidence, the admitted facts are that there is no dispute that Ex.P.1 cheque is belongs to the accused and it was dishonoured as per Ex.P.2 endorsement and notice has been issued as per Ex.P.3 and it was duly served on accused as per Ex.P.6 postal department endorsement. Further, there is no dispute that about issuance of reply notice by the accused as per Ex.P.8 document . The prime dispute in the present case is that existence of debts between the complainant and accused and issuance of Ex.P.1 cheque by the accused to discharge the legally recoverable debts and source of income and capacity of the complainant and other facts. To prove the said facts complainant examined as PW1 and he exhibited Ex.P.1 to 10 documents. Per contra, accused examined as DW1 in his evidence he stated before the court that he has only borrowed loan of Rs.2,50,000/- with the complainant and in the said transactions he has issued 12 blank cheques, on demand promissory note and consideration receipts, and stamp papers in a blank nature in favour of complainant and he has discharged all debts. The said fact recorded in CD. To substantiate his case he exhibited Ex.D.6 CD and prays 7 C.C.NO:24469-2016 to acquittal of the accused . Further, accused has exhibited Ex.D.1 to 6 documents, out of them Ex.D1 to 5 documents are marked in cross-examination of PW1 by way of confrontation they are ;
Ex.D.1 : Reply notice
Ex.D.2 : Copy of Order sheet in
OS.No.2836/2018
Ex.D.3 : Copy of FIR
Ex.D.4 : Charge sheet
Ex.D.5 : Charge sheet
12) During the course of arguments, the learned counsel for the complainant Sri.JM vehemently argued that complainant has categorically, cogently proved his case by way of oral and documentary evidence and complainant has paid Rs.10 lakhs to the accused on March 2016, to discharge the said debts, accused has issued Ex.P.1 cheque and accused has issued reply notice and during the pendency of the case complainant and accused are compromised the case and filed a joint memo. Accordingly, accused has paid Rs.2,55,000/- and remaining amount he has due and accused has not rebut the complainant case and accused has not issued blank cheque, on demand promissory note and consideration receipt and other stamp papers etc and prays to convict the accused . 8 C.C.NO:24469-2016
Per contra, Sri.BRV counsel for accused resisted the said arguments and argued that absolutely there is no source of income and capacity to the complainant to pay huge amount of Rs.10 lakhs and complainant in his cross- examination admitted that he had houses at Bengaluru, Mumbai and Chennai etc. To prove the said facts he has not placed assessment extracts, khatha extracts nor other papers if at all he had properties in Bengaluru, Mumbai and Chennai etc;, The learned counsel further argued that to substantiate the Ex.P.10 lease agreement complainant has not placed either assessment extracts nor other papers to prove about existences of houses in his name and he also not examined the lessees i.e., who is occupied the house of the complainant and Ex.P.10 has not proved under section 68 of Indian Evidence Act and prays to acquittal of the accused .
13) On perusal of the entire oral and documentary evidence and arguments addressed by the counsels, the admitted facts are that, Ex.P.1 cheque is belongs to the accused and it was dishonoured as per Ex.P.2 endorsement and notice has been issued as per Ex.P.3 and it was duly served on accused as per Ex.P.6 postal department 9 C.C.NO:24469-2016 endorsement. Further, there is no dispute that about issuance of reply notice by the accused as per Ex.P.8 document. So, these Ex.P.1 to 8 documents are not serious dispute on both sides, as such it is need not be requires to discuss at length on said facts. The prime dispute in the present case is that existence of debts between the complainant and accused and payment of huge amount of Rs.10 lakhs to the accused and issuance of Ex.P.1 cheque to discharge the legally recoverable debts and also source of income and capacity of the complainant. To prove the said fact as already stated above complainant has filed a chief examination affidavit, in which he reiterated the entire averments of the complaint. Of course, on careful scrutinizing of the pleadings and chief examination of complainant, he categorically stated before the court that accused has requested for loan of Rs.10 lakhs in the month of March 2016. Accordingly, complainant has paid amount of Rs.10 lakhs in cash on 30.3.2016, at the time accused has executed one demand promissory note and consideration receipt and he also further pleaded that accused has ultimately issued cheque bearing No. 847969 dated 8.8.2016 draw on Axis Bank, Yelahanka Branch, 10 C.C.NO:24469-2016 Bengaluru etc., at this stage it is necessary to reproduce the admissions of PW1 for the sake of convenience.
ಆರೋಪಿ ನನ್ನ ಬಳಿ ಹಣ ಆಗಾಗ ತೆಗೆದುಕೊಂಡು ಹೋಗುತ್ತಿದ್ದ ರು, ಕೊಡುತ್ತಿದ್ದ ರು ಎಷ್ಟು ಸಲ ತೆಗೆದುಕೊಂಡಿದ್ದ ರು ಎಂದು ಗೊತ್ತಿಲ್ಲ , ಸುಮಾರು 20 ವರ್ಷಗಳಿಂದ ಒಂದೊಂದು ಸಲ ರೂ.3 ಲಕ್ಷ ರೂ.5 ಲಕ್ಷ ತೆಗೆದುಕೊಂಡು ಹೋಗಿ ವಾಪಸ್ ಕೊಟ್ಟಿದ್ದಾರೆ . ನಾನು ಬೆಂಗಳೂುರಿನಲ್ಲಿ ಹಚೆಎಂಟಿ ಫ್ಯಾಕ್ಟ ರಿಯಲ್ಲಿ ಪೂರ್ಣ ಸರ್ವೀಸ್ ಮಾಡಿ ನಿವೃತ್ತಿ ಹೊಂದ್ದೇನೆ ನಾನು ಬೆಂಗಳೂುರಿಗೆ ಬಂದು ಆಸ್ತಿ ಮಾಡಿದ್ದೇನೆ ನನಗೆ ಸುಮಾರು 10 ಕೋಟಿ ಆಸ್ಥಿ ಇದೆ.
ನಾನು ಹಣ ಕೊಡುವಾಗ ಚೆಕ್ ಮತ್ತು ಆ್ಯಂಡಿಮಾಂಡ್ ಪಡೆದು ಹಣ ಕೊಡುತ್ತಿದ್ದೆ ಆರೋಪಿಯಿಂದ ನಾನು ಹಣ ಪೂರ್ಣ ವಾಪಸ್ ಪಡೆದಿದ್ದೇನೆ ಆದರೆ ಚೆಕ್ನ್ನು ಅವರಿಗೆ ವಾಸಪ್ಕೊಟ್ಟಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ ಆ ಹಣ ನನ್ನ ನಿವೃತ್ತಿಯಿಂದ ಬಂದಿತ್ತು ನನ್ನ ನಿವೃತ್ತಿ ಹಣ ರೂ.25 ಲಕ್ಷ ಬಂದಿತ್ತು ಆ ಬಗ್ಗೆ ದಾಖಲೆ ಕೊಡಲು ತೊಂದರೆ ಇಲ್ಲ ಮುಂದಿನ ದಿನಾಂಕದಲ್ಲಿ ಕೊಡುತ್ತೇನೆ ನಾನು 2013 ರಲ್ಲಿ ನಿವೃತ್ತಿಯಾದೆ ಆರೋಪಿ 2016 ಮಾರ್ಚ ಮೊದಲ ವಾರದಲ್ಲಿ ರೂ.10 ಲಕ್ಷ ಹಣ ಕೇಳಿದ್ದ ರು . 30 ನೇ ದಿನಾಂಕದಂದು ಹಣ ಕೊಟ್ಟೆ ಆರೋಪಿ ಒಂದು ತಿಂಗಳಿನಿಂದಲೂ ಹಣ ಕೇಳುತ್ತಿದ್ದ ನನ್ನ ಬಳಿ ರೂ.10 ಲಕ್ಷ ಇತ್ತು ಕೊಟ್ಟೆ ಹಣ ಪಡೆಯಲು ಆರೋಪಿ ಒಬ್ಬ ರೆ ಬಂದಿದ್ದ ರು ಮನೆಯನ್ನು ಲೀಜ್ ಗೆ ಹಾಕಿದ್ದೆ ಆ ಹಣ ಬಂದಿತ್ತು ನನ್ನ ದು ಒಟ್ಟು 30 ಮನೆಗಳಿಗೆ ಕಟ್ಟಿದ 30 ಮನೆಗಳನ್ನು ಕೊಂಡು ಕೊಂಡಿದ್ದೆ ಸಾಕ್ಷಿಯ ಅವರ ವಕೀಲರಿಗೆ ಬಂದ ನೋಟಿಸ್ನ್ನು ಗುರುತಿಸಿದ್ದು ಅದನ್ನು ನಿಡಿ1 ಎಂದು ಗುರುತಿಸಲಾಯಿತು 11 C.C.NO:24469-2016 ಆರೋಪಿ ಈಕೇಸಿನಲ್ಲಿ ರೂ.2.55.000/- ನನಗೆ ಕೊಟ್ಟಿದ್ದಾ ರೆ ಮಾತುಕತೆ ಪ್ರಕಾರ ಆರೋಪಿ ನನಗೆ ಪೂರ್ಣ ಕೊಟ್ಟಿದ್ದಾರೆ ಎಂದರೆ ಸರಿಯಲ್ಲ So, on careful perusal of the admissions of PW1 those have referred above ದ it is crystal clear that since 20 years accused has oftenly borrowing loan with the complainant and repaid the same and he also admitted that accused has borrowed loan of Rs.3 lakhs, Rs.5 lakhs and said amount has been repaid and he also admitted that when ever he borrowed loan, accused has issued blank cheque, on demand promissory note in favour of complainant. Further, to the suggestion of the accused counsel to the PW1 in para -6 of his cross-examination dated 7.1.2019 explained that he has paid Rs. 18 lakhs to the accused at the time of selling of a accused house and the said amount was obtained from retirement benefits and he also admitted that he has paid Rs.10 lakhs, i.e., retirement benefit and he also admitted that he has no objections to produce the said documents i.e., prove the earnings of retirement benefits he also admitted that on March 1 st week 2016 accused has requested for loan of Rs.10 lakhs and said amount has paid on 30th March 2016 and he also admitted that he has leased out his house, as such he got the amount of 12 C.C.NO:24469-2016 Rs.10 lakhs and said amount paid to the accused, he also admitted the Ex.D.1 to 5 documents in his cross- examination. He also admitted in page No.12 of his cross- examination dated 10/4/2019 that, he had some other transactions with the accused and dated 15/5/2019 cross- examination of complainant admitted that accused has paid Rs.2,55,000/- in this case etc., So, on perusal of the aforesaid admissions of PW1 in his cross-examination clearly indicates to the court that since 20years there are several money transactions between the complainant and accused and in all such transactions accused has issued cheques, demand promissory notes and consideration receipts in favour of complainant. Further, the complainant as well as PW1 admitted as stated supra that oftenly the accused has borrowed loan and repaid to the complainant etc., The said previous money transactions those were held between the complainant and accused has not pleaded by the complainant in his complaint nor chief examination affidavit. So, he suppresed the previous transactions those were held between them , of course, there no rule under law i.e., to plead the previous transactions between the parties in subsequent case proceedings, but to know the 13 C.C.NO:24469-2016 conduct of the parties it is necessary to pleaded the previous transactions those were held between the parties. Of course, DW1 also admitted the following points in his cross-examination they are ನಾನು ಅವರಿಂದ ಮಾರ್ಚ 2016 ರಲ್ಲಿ ರೂ.10 ಲಕ್ಷ ಸಾಲ ಕೇಳಿದ್ದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ದಿ.30.3.2016 ರಂದು ರೂ.10 ಲಕ್ಷ ಸಾಲ ದೂರುದಾರರು ನನಗೆ ಕೊಟ್ಟಿದ್ದಾರೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ಆಗ ನಾನು ಆ್ಯಂಡಿಮ್ಯಾಂಡಿ ಬರೆದುಕೊಟ್ಟಿದ್ದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ನಿಪಿ.7 ರಲ್ಲಿರುವ ಸಹಿ ನನ್ನ ದು .ಸಾಕ್ಷಿ ಮುಂದುವರೆದು ನಾನು ರೂ.2,50,000 ಸಾಲ ಪಡೆದಿದ್ದೆ ಆಗ ನನ್ನ ಸಹಿ ಪಡೆದಿದ್ದ ರು ಎಂದು ಹೇಳುತ್ತಾರೆ. ನಾನು ರೂ.10 ಲಕ್ಷ ಸಾಲ ಪಡೆದಾಗ ನಿಪಿ.7 ಬರೆದುಕೊಟ್ಟಿದ್ದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ .
3. ನಿಪಿ.1 ರಲ್ಲಿರುವ ಸಹಿ ನನ್ನ ದು. ನಿಪಿ.1 ನ್ನು ನಾನೇ ಬರೆದಿದ್ದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ನಾನು ಬರೆದಿಲ್ಲ . ನಾನೇ ಬರೆದು ದೂರುದಾರರಿಗೆ ಕೊಟ್ಟಿದ್ದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ಚೆಕ್ಕ ನ್ನು ಜಮಾವಾಣೆಗೆ ಹಾಕಿ ಎಂದು ನಾನು ಪ್ರಾವಿುಸ್ ಮಾಡಿದ್ದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ನಾನು ಹೇಳಿದ ಪ್ರಕಾರ ಚೆಕ್ಕ ನ್ನು ಜಮಾವಾಣೆ ಹಾಕಿದ್ದ ರು ಎಂದರೆ ಸರಿಯಲ್ಲ .
ನಿಪಿ.1 ಬೌನ್ಸ ಅದ ವಿಚಾರ ನೋಟಿಸ್ ಬಂದಾಗ ಗೊತ್ತಾಯಿತು. ನಾನು ದೂರದಾರರಿಗೆ ಎಲ್ಲಾ ಹಣ ಕೊಟ್ಟಿದ್ದೇನೆ , ರೂ.2,50,000 ಬಾಕಿ ಇದೆ. ಎಲ್ಲಾ ಹಣ ಯಾವುದು ಎಂದರೆ ಸಾಕ್ಷಿ ರೂ.50,000, ರೂ.1 ಲಕ್ಷ ಪಡೆಯುವುದು ವಾಪಸ್ ಕೊಡುತ್ತಿದ್ದೆ ಎಂದು ಹೇಳುತ್ತಾರೆ. It is true to suggest that I have paid Rs.50,000/- each in two installment.
14 C.C.NO:24469-2016ದಿ.16.9.2017 ರಂದು ನ್ಯಾ.ದಲ್ಲಿ ದೂರುದಾರಿಗೆ ರೂ.30,000 ಕೊಟ್ಟಿದೇನೆ ಎಂದರೆ ಸರಿ. ಅದೇ ರೀತಿ ತಲಾ ರೂ.25,000 ಗಳನ್ನು ಐದು ಬಾರಿ ದೂರುದಾರರಿಗೆ ಕೊಟ್ಟಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ. ನ್ಯಾ.ದಲ್ಲಿ ಒಟ್ಟು ರೂ.2,55,000 ದೂರುದಾರರಿಗೆ ಕೊಟ್ಟಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ. ನಾನು ಇನ್ನೂ ರೂ.7,45,000 ದೂರುದಾರರಿಗೆ ಕೊಡಬೇಕು ಎಂದರೆ ಸರಿಯಲ್ಲ . ನಾನು ರೂ.10 ಲಕ್ಷ ಕೊಡಬೇಕಾಗಿದ್ದ ರಿಂದ ಜಾಯಿಂಟ್ ಮೆಮೋ ಹಾಕಿದ್ದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ .
ಆ್ಯಂಡಿಮ್ಯಾಂಡ್ ಮತ್ತು ಹಣ ಸಂದ ರಸೀದಿಯಲ್ಲಿರುವ ಸಹಿ ನನ್ನ ದು. ದೂರುದಾರರ ಬಳಿ ಸುಮಾರು ಸಲ ಸಾಲ ಮಾಡಿ ವಾಪಸ್ಕೊಟ್ಟಿದ್ದೆ. 2015 ರಲ್ಲಿ ಸಿಡಿ ರೆಕಾರ್ಡ್ ಮಾಡಿರಬಹುದು. ತಿಂಗಳು, ಮತ್ತು ವರ್ಷ ದಿನಾಂಕ ನೋಡಿ ಹೇಳುತ್ತೇನೆ. ಸೆಲ್ ಫೋನಿನಲ್ಲಿ ರೇಕಾರ್ಡ ಮಾಡಿದ್ದೇ. ದೂರುದಾರರಿಗೆ ರೇಕಾರ್ಡ ಮಾಡುವ ಬಗ್ಗೆ ನೋಟಿಸ್ಕೊಟ್ಟಿಲ್ಲ . The said admissions indicates to the court that Ex.P.1 cheque is belongs to the accused and signature also pertaining to him and he also admitted that he has due Rs.2,50,000/- to the complainant and he has paid Rs.50,000/- each in two installment to the complainant and he also admitted the signature on demand promissory note and consideration receipt. Of course, admissions of DW1 confers to the court that Ex.P.1 cheque is belongs to the accused and signature those find in on demand promissory note also belongs to the accused etc., So, merely the 15 C.C.NO:24469-2016 cheques and on demand promissory notes and consideration receipt are belongs to the accused they are not sufficient to believe the existence of debts between the complainant and accused and that too to payment of huge amount of Rs.10 lakhs by the PW1 and to convict the accused in a mechanical manner.
14) Of course to prove capacity and source of income of complainant, he exhibited Ex.P.10 lease agreement dated 29/3/2016. The said document held between the complainant D.Krishnappa and Ramesh. But during the entire case proceedings, the accused counsel has denied the source of income and capacity of the complainant and further in the cross-examination of the complainant has explained before the court that, he had houses in Mumbai, Chennai and Bengaluru etc., To prove the said fact i.e., his capacity for owning of Rs.10 lakhs with him except marking of aforesaid lease agreement, he has not marked as well as placed either assessment extracts nor katha extract nor sale deeds to believe the contention of the complainant that about owning of houses at Bengaluru, Chennai and Mumbai and other parts of India. Further, in entire case proceedings accused has denied the Ex.P.10 document even though 16 C.C.NO:24469-2016 complainant has not taken endeavours to prove the said document either by way of examination of Ramesh, who has taken the house for lease under Ex.P.10 document nor placing other corroborative materials, i.e., assessment extract to believe the ownership of complainant over the Ex.P.10 lease property is concerns, Further, on perusal of the Ex.P.10 receipts and chief examination affidavit of PW1, and complainant pleadings they have some corroboration with each other that the complainant in his pleadings and chief examination affidavit narrated the facts that accused has requested hand loan of Rs.10 lakhs in the month of March 2016, accordingly, he had paid Rs.10 lakhs on 30 th March 2016. But either in pleadings nor chief examination affidavit there is no narration of facts that about earning of Rs.10 lakhs to the complainant, by way of lease out of his properties, in the absence of plea with regard to the accusation of amount of Rs.10 lakhs, the proof shall not be allowed as per the ratios of Hon'ble Appex Court and Hon'ble High Court of Karnataka in catena of decisions i.e., without plea no proof shall be allowed by the courts. Of course, the strict proof shall not be requires in the present type of cases i.e.,that too to the cases filed under section 17 C.C.NO:24469-2016 138 of NI Act because the proceedings under section 138 of NI Act are summary in nature. But the PW1 admitted in his cross-examination dated 15.5.2019 that in this case accused has paid Rs.2,55,000/- to the complainant and also in his cross-examination dated 10/4/2019 at page 12 in para 3 has categorically explained before the court that ಸೆಟ್ಲ್ಮೆಂಟ್ಆಗಿದೆ ಎಂದು ನಾನು ನ್ಯಾ.ಕ್ಕೆ ಸುಳ್ಳು ಕಥೆ ಹೇಳಿ ಮೆಮೆಾೕ ಹಾಕಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ನಾನು ರೂ.2 ಲಕ್ಷ ಕ್ಲಿ ಯರ್ ಆಗಿದೆ ಎಂದು ನಾನು ಒಪ್ಪಿ ಕೊಂಡಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ಸಾಕ್ಷಿ ಮುಂದುವರೆದು ಅದು ಬೇರೆ ವ್ಯ ವಹಾರದಲ್ಲಿ ಮಾತನಾಡಿದ್ದು ಎಂದು ಹೇಳುತ್ತಾರೆ ನನಗೂ ಮತ್ತು ಆರೋಪಿಗೂ ಬೇರೆ ವ್ಯ ವಹಾರ ಇದೆ ಎಂದು ಹೇಳುತ್ತಾರೆ These statement of complainant, has indicates to the court that, definitely there are several transactions between the complainant and accused since 20 years. So, the evidence of PW1 and his pleadings and Ex.P.1 to 10 documents confers to the court that about having of certain money transactions between the complainant and accused but the said documents and evidence of PW1 have not confer to the court that about payment of Rs.10 lakhs dated 30.3.2016 to the accused and issuance of Ex.P.1 cheque and Ex.P.7 on demand promissory note and consideration receipt by the accused in transactions dated 30.3.2016 i.e., first of all complainant has failed to prove the payment of Rs.10 lakhs 18 C.C.NO:24469-2016 dated 30.3.2016 and issuance of Ex.P.1 cheque in the said transactions by the accused . Of course, Ex.P.7 and Ex.P.1 and pleadings of the complainant are having a common dates about transactions between the complainant and accused but the admissions of PW1 those have referred above are creats a very doubt in the mind of the court about held of transactions as well as payment of Rs.10 lakhs by the complainant dated 30.3.2016. Of course, the documents placed by the accused as per Ex.D.1 to 5 confers to the court that about registration of several criminal cases against the complainant on allegations of cheating to the several publics at large by the PW1 . But the said documents have not support the accused case. Because, admittedly the said charge sheets and FIRs those have placed by the accused are pending for consideration before the competent courts, and they have not fully adjudicated. Further, the admissions of DW1, also have not helpful to the complainant case because in the rulings submitted by the accused they are 1) AIR 2019 SCC 1876 Rohitbhai Jivanlal Patel V State of Gujarath and anr in which their lordship clearly held that 19 C.C.NO:24469-2016 "burden lies on the complainant to prove all basic ingredients of section 138 of NI Act and presumptions is only with respect to the issuance of cheque not for the debts and burden lies on the complainant to prove that issuance of cheque by the accused in question were drawn for consideration and complainant has received it in discharge of an existing debt etc., As per the said ratios the existence of debts between the complainant and accused has not proved by the complainant. Because, the materials placed by him i.e., oral evidence of pW1 and Ex.P.1 to 10 documents confers to the court that about existence of some loan transactions between complainant and accused since 20 years nor after the 2016. But the said materials have not confers to the court that about the issuance of Ex.P.1 cheque for the debts of 2016 that too for the date of 30.3.2016, in the absence of proof of said existence of debts between the complainant and accused, mere issuance of cheque by the accused and on demand promissory note as stated supra are not sufficient to convict the accused in a mechanical manner. Accordingly, complainant is not entitled for the 20 C.C.NO:24469-2016 any of reliefs as sought in the complaint I.e, complainant has not proved the existence of debts of Rs.10 lakhs beween complainant and accused. So, in the absence of proof of said fact, and on aforesaid reasons I am of the considered opinion that accused is liable to acquitted as he is not found guilty because complainant has failed to prove the issuance of Ex.P.1 cheque to discharge the legally recoverable debts. Further, first of all existence of debts between the complainant and accused for the date of 30.3.2016 has not proved and further for source of income and capacity of complainant, he has not examined the Ex.P.10 lease holder i.e., Ramesh . Further, to substantiate the said document he has not produced any assessment nor katha extracts to believe that about existence of house in his name. So, in the absence of production of said materials the arguments addressed by the complainant counsel Sri.JM have no merits. On the other hand as argued by the accused counsel as per ratios of Hon'ble Appex Court rendered in Rohitbhai Jivanlal Patel V State of Gujarath and anr, the burden lies on the complainant to prove that the cheques in question were dawn for consideration and complainant has received in discharge of 21 C.C.NO:24469-2016 any existence of debts etc., The said facts has not been proved by the complainant. Hence, accused is entitled for an acquittal and I answer this Point No.1 in the Negative.
15). POINT NO.2:- In view of my discussions as stated supra and my findings on Point No.1., I proceed to pass the following.
ORDER Acting under Section 255 (1) of Cr.P.C, accused is hereby acquitted of the offence punishable under Section 138 of Negotiable Instruments Act 1881.
The bail bond executed by the accused and surety bond executed stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 4th day of November 2020 ).
(MANJUNATHA.K.P) XVIII A.C.M.M., BENGALURU.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : D.Krishnappa
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Bank endorsements.
Ex.P.3 : Office copy of legal notice.
Ex.P.4 : Postal receipt
22 C.C.NO:24469-2016
Ex.P.5 : Complaint given to post master
Ex.P.6 : Postal endorsement
Ex.P.7 : On demand promissory note and
consideration receipt
Ex.P.10 : lease agreement.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : S.Shaik Silaiman
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D.1 : Reply notice
Ex.D.2 : Copy of Order sheet in
OS.No.2836/2018
Ex.D.3 : FIR
Ex.D.4& 5 : Charge sheets
Ex.D.6 : CD
XVIII A.C.M.M., BENGALURU.
23 C.C.NO:24469-2016
(Judgment pronounced in Open Court vide a separate Order) ORDER XVIII A.C.M.M., BENGALURU.