Bangalore District Court
Mr. Venkatappa C vs Mr. Manjunath on 12 February, 2021
IN THE COURT OF XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM34)
PRESENT: Sri KAMALAKSHA D, B.A., LLB.
XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 12th day of February, 2021.
C.C.No.60752/2017
COMPLAINANT : Mr. Venkatappa C,
S/o. Chinnappa,
Aged about 69 years,
Occupation: Builder,
R/at No.007, Swarna Tej Apartments
PWD Main Road, A. Narayanapura,
Dooravaninagar Post,
Bengaluru 560 016.
(By Mr.B.A. Somanna & Guruswamy
K.S. Advocates)
V/s
ACCUSED : Mr. Manjunath
S/o. H.J. Venkataswamy,
Aged about 31 years,
Occupation : Business,
R/at No.134, Hoodi Village,
Mahadevapura Post,
Near Silk Board,
Bengaluru 560 048.
(By Sri Muzaffar Ahmed - Advocate)
1 Date of Commencement 04.08.2017
of offence
2 Date of report of offence 27.09.2017
3 Presence of accused
3a. Before the Court 24.03.2018
3b. Released on bail 24.03.2018
4 Name of the Complainant Mr. Venkatappa C.
5 Date of recording of 08.12.2017
evidence
2 C.C.No.60752/2017
6 Date of closure of evidence 19.11.2020
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused is not found guilty.
JUDGEMENT
The Private Complaint is filed under Section 200 of Cr.P.C against the accused alleging that he has committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that the Accused is known to his son Mr. V. Tulasiram and well acquainted to his family.
The Accused is the sole and absolute owner of the property bearing Sy.No.28, at Hoodi Village, K.R. Puram Hobli, Bengaluru East Taluk to an extent of 13 guntas. The Accused offered to sell the aforesaid property the Complainant for a valuable consideration of Rs.72,00,000/ and entered into an agreement of sale on 22.12.2015, and at the time of executing the agreement, the Complainant had paid a sum of Rs.10,00,000/ by way of cash towards advance earnest amount. The Accused has assured that he would execute an absolute sale deed within 6 months from the date of sale agreement after receiving the balance sale consideration.3 C.C.No.60752/2017
3. It is further stated that after the sale agreement executed the Complainant had paid a sum of Rs.81,20,057/ to the Accused and as well as his son V. Tulasirum in the following manner;
Sl.No Chq & by way Bank Name & Place Amount Date
. of cash
1 620452 Union Bank of India, Rs.7,00,000/- 20.11.2015
Vijinapura
2 02240652 Union Bank of India, Rs.10,00,000/- 05.12.2015
Vijinapura
3 620044 Union Bank of India, Rs.1,00,000/- 31.12.2015
Vijinapura
4 620045 Union Bank of India, Rs.9,65,000/- 31.12.2015
Vijinapura
5 2240660 Union Bank of India, Rs.5,00,000/- 22.12.2015
Vijinapura
6 620011 Union Bank of India, Rs.7,00,000/- 22.12.2015
Vijinapura
7 347986 Union Bank of India, Rs.14,55,000/- 30.12.2015
Vijinapura
8 347987 Union Bank of India, Rs.1,00,000/- 30.12.2015
Vijinapura
9 (538344) State Bank of India, Rs.5,00,000/- 25.10.2016
cash Dooravani Nagar
10 538335 State Bank of India, Rs.10,00,000/- 22.12.2015
Dooravani Nagar
11 Cash --- Rs.5,00,000/- 10.08.2016
4. Though received the sale consideration amount , the Accused has not come forward to execute the sale deed. The Complainant demanded for return of Rs.81,20,057/ with interest. Then the Accused issued Cheque bearing No.000015 4 C.C.No.60752/2017 dtd.4.8.2017 for RS.90,00,000/ drawn on HDFC Bank, Brook Fields, Doddenakundi, Bengaluru in favour of the Complainant.
5. It is further submitted in the complaint that the Complainant presented the Cheque through his baker Union Bank of India, Service Branch, Vijinapura, Bengaluru. But the same was dishonoured for "funds insufficient" with endorsement dtd.7.8.2017. After dishonour of Cheque, the Complainant got issued demand notice through RPAD on 5.9.2017. The said notice was duly served. However, the Accused neither paid nor replied to the notice. The Complainant has submitted that the accused had issued the said cheque knowingly that without making sufficient funds in his account. Therefore, the Complainant has prayed to recover the amount as compensation and pass a sentence to the accused person.
6. The cognizance for offence was taken of my learned predecessor. The criminal case came to be registered against the accused. The summons was issued to the accused. The accused in obedience of the summons appeared before the Court and enlarged on bail.
5 C.C.No.60752/2017
7. The substance of the accusation was framed, read over and explained to the accused in the language known to him by the learned predecessor of this Court. The accused pleaded not guilty and claimed to try the case. Hence, the case was posted for complainant's evidence.
8. The Complainant got examined himself as PW1 and he also got examined one more witness from his end as PW2 and PW3 and got marked 11 documents as Ex.P.1 to Ex.P.11.
9. The statement as required under Section 313 of Cr.P.C. was recorded. The accused denied all the incriminating evidence appeared against him. He got examined himself as DW1 and no documents were marked from his end.
10. I heard the arguments of both side.
11. Now the following points that arise for the consideration of this Court are :
1. "Whether the Complainant proves the cheque issued by the accused person dishonoured with an endorsement as "funds insufficient" and inspite of service of legal notice and demand the accused person failed to pay the cheque amount within stipulated period as such he has committed an offence punishable under Section 138 of Negotiable Instruments Act?"6 C.C.No.60752/2017
2. What order ?
12. 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
13. POINT No.1 - The PW1 in his evidence deposed that the Accused is known to him from last 10 years. The Complainant and Accused used to meet together to their native places. After retirement of PW1, he started small contract works. But, the PW1 has not got licence to carry such petty contract works. The evidence further clarifies that the Accused was the owner of the property described in produced agreement. But the PW1 does not remember the date of execution of the agreement. Prior to sale transaction, the Accused and Complainant met together for negotiation of sale transaction along with some other known persons to both side. The PW1 does not remember the names of the witnesses who have put signatures, in the sale deed. The PW1 changed his version saying that he and Accused prepared sale deed of said property for total consideration amount of Rs.72,00,000/. Prior to prepare of said deed the Complainant and Accused 7 C.C.No.60752/2017 completed their negotiation one month back in the presence of son of the Complainant and his relative person namely Mr. Umashankar. But, no person has signed as witness in that Sale Agreement.
14. The evidence further indicates that the Complainant has got three bank accounts in Union Bank of India, SBI, and ICICI Bank. However, the PW1 has not disclosed the details of account held by his son. The clarification of the PW1 is that he and his son carry their business separately. Therefore, he does not the details of bank account of his son. According to the PW1, he paid amount of Rs.13,00,000/ on 22.12.2015. But again the PW1 changed his version stating that only the amount of Rs.10,00,000/ is mentioned in the agreement. Therefore, the PW1 says that though he had paid total sum of Rs.13,00,000/ on 22.12.2015, only amount of Rs.10,00,000/ was mentioned in the Agreement. The evidence further shows that the PW1 paid amount on that day by way of cash. The PW1 further says that he paid amount of Rs.10,00,000/ through Cheque in year of 2015. According to the PW1, the amount of Rs.10,00,000/ was credited to the account of Accused. Again in the year of 2017, he paid amount of Rs.10,00,000/ through 8 C.C.No.60752/2017 cheque. However, the PW1 does not know whether the amounts were transfered from his accounts or the account of his son. It is upto the Complainant to say the way of transfer of the amount and from whose account the said amounts were deducted. But, the Complainant was unable to say the perfect answer about the transfer of amount.
15. The portion of the crossexamination of the PW1 recorded in paragraph No.8 is the perfect answer about the transfer of amount. But, the said portion is not enough to give clear idea about transfer of the amount to the account of the Accused. If Complainant really had transferred the amount, he could have document or he could have remember the date and other details regarding transfer of the amount.
16. The PW1 further says that he used to maintain a diary and he made every entries in the said diary for payment of amounts. But the said diary is placed in dark. The clarification of the PW1 is that the socalled diary was misplaced from his custody. Therefore, he could not able to produce said diary. Therefore, the suggestion of the Accused is that the Complainant created false facts of maintenance of a diary to prove the payment of amount. In the foot portion of the cross 9 C.C.No.60752/2017 examination of paragraph No.9 the Accused has asked some questions to the PW1 regarding the places of his residence especially in the year of 201617. The Complainant started to live in new house after filing of this case. Except socalled diary, no other documents were misplaced from his custody. The fact of loss of said diary came to the knowledge of PW1 in the year of 2017. However, he has not taken any action to collect or to find the misplaced diary. The details of the bank account mentioned in the Ex.P6 is in the name of son of PW1. From that account, a sum of Rs.9,65,000/ was credited on 30.12.2015 to the account of Accused. The said account is in the name of his son. But again the PW1 changed his version deposing that the said account belongs to him. Therefore, the PW1 has given inconsistent answers. The further clarification of the PW1 is that at that time due to the death of his daughter, he suffered mentally and physically. For that person he used the amount of his son which was in the account of PW3.
17. The PW1 further says that he has got document for payment of amount of Rs.10,00,000/ to the account of his son. The said amount was not directly paid to the account of the Accused, but it was credited to his son's account. It is 10 C.C.No.60752/2017 pertinent to note that in earlier occasion the amount of Rs.13,00,000/ or amount of Rs.10,00,000/ was directly credited to the account of Accused from the account of PW1. But in 3rd instance the amount of Rs.10,00,000/ was credited to the account of the son of PW1 and that amount was credited to the account of the Accused. The Complainant has not disclosed the purpose of said transaction. The PW1 says that his son had asked to transfer the amount of Rs.10,00,000/. Therefore, he transferred to the account of his son. Now it is for the PW1 to say that whether the said amount of Rs.10,00,000/ was really credited to the account of Accused or not. Because the evidence shows that the said amount was not directly transferred to the account of the Accused. The cross examination of PW1 recorded in the 12 th paragraph create some doubts about the transfer of the amount of Rs.10,00,00/ because the PW1 says that the Accused did not ask to transfer the amount of Rs.10,00,000/ from Complainant, but son of the Complainant asked to transfer the amount. Therefore, the said portion of the evidence further creates doubt in the mind of the court regarding true transfer of the amount because even though the Accused had not asked to transfer the amount, the 11 C.C.No.60752/2017 PW1 transfered such amount to the account of his son. Therefore, the evidence of the PW1 is not so clear regarding transfer of the amount.
18. The cross of the PW1 further indicates that the PW1 has not shown the amount of Rs.72 lakhs in his annual I.T. Records. The evidence further shows that on the date of negotiation of sale agreement the Complainant, his son and one Mr. Umashankar were present. The son of the Complainant introduced the Accused to the PW1. Mr. Umashankar did not put his signature in the agreement for sale. Similarly, no other person has signed in the agreement for sale. The PW1 does not remember the mode of payment of Rs.90 lakhs either by cheque or through cash. On 20.11.2015 the Accused had withdrawn the amount of Rs.7 lakhs and paid that amount to the Accused. However, the clarification of the Complainant is that the diary book was lost from his custody. Therefore, it may be gathered in the evidence of PW1 recorded in paragraph No.14 that he does not remember the exact quantum of amount paid through cheque or cash out of total amount of Rs.90 lakhs. The amount involved in the case is huge quantum of Rs.90 lakhs. The evidence of the Complainant is that he used to maintain a diary 12 C.C.No.60752/2017 book for having payment of the amounts to the Accused. However, the said diary was lost from his custody. To clarify it, the learned Counsel for the Accused asked cross questions to PW1 that whether he lost all documents including diary or diary alone. The answer of the PW1 is that except so called diary, he has got all other documents. Therefore, it can be said that the Complainant has not placed material documents to prove the transaction. In the crossexamination, he further says that he has got bank statement as to show the transfer of amount. However, the produced bank statement does not speak or give clear information about transfer of amounts. The Hon'ble Supreme Court of India has held in the case of S.P. Changalvaraya Naidu V/s. Jagannath, reported in 1994 (1) SCC1, wherein it is observed that;
"A litigant, who approaches the court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side, then he would not be guilty of playing fraud on the court as well as on the opposite party. "
19. The said ratio of Hon'ble Supreme Court of India is more applicable to this portion of evidence of PW1 because, though he introduced the fact of 'diary', it has not seen the day 13 C.C.No.60752/2017 of light at the attempt of the Complainant. The said document or diary is the cardinal document and expected to produce by Complainant to prove the fact of payment of amounts. Therefore, mere introduce of a fact of possession of vital document is to be proved by producing the said document. Therefore, when it is not produced, court cannot keep illusion on it or court cannot draw its imagination of existence of such document.
20. The evidence of the PW1 found in paragraph No.15 concretes that he had issued one cheque on 5.12.2015, in favour of Mr.Mallikarjuna as per Ex.P6. However, the suggestion of the Accused that on the same day the PW1 had issued one D.D. for a sum of Rs.3,21,030/. But the PW1 denies it. On 22.12.2015 the PW1 had paid amount of Rs.5,00,000/ in favour of one Mr. Subbanna, through Cheque bearing No.2240660. The fact of issuance of cheque in favour of one Mr. Subbanna has been shown in the averments of the case. The Sl. No.5 of table mentioned in the paragraph No.7 of private complaint is one entry amongst total 11 serial numbers. However, the PW1 shown that averments in his private complaint as to the explanation of payment of amount to 14 C.C.No.60752/2017 Accused. But, as agreed by him, the Sl.No.5 of the said table is not an explanation pertaining to the payment of amount to Accused, but it is in the name of Mr. Subbanna. Therefore, it may be said that the PW1 has given wrong explanation of mode of payment of amount to the Accused or it may be said that the PW1 calculated the amounts paid to others in his case. Similarly, the amount of Rs.1,00,000/ paint to the name of son of Complainant. The explanation of payment of amount of Rs.1,00,000/ also included in the table of 7th paragraph of the private complaint. The said entry is found in the Sl.No.8 of the said table. On same date, amount of Rs.14,55,000/ was credited through cheque No.347986 to the name of his son. The amount was credited from the account of PW1. The Sl.No.6 is the narration regarding transfer of such amount. On 22.12.2015 the PW1 had withdrawn amount of Rs.7 lakhs as self draw. The further say of the PW1 is that he paid the said amount to the Accused and maintained one entry book as diary book, but that was lost from his custody.
21. Therefore, the evidence of PW1 mismatches to the narration made in paragraph No.7 of private complaint. Hence, it may be said that the oral evidence of PW1 does not help to 15 C.C.No.60752/2017 his explanation regarding payment of amounts, which have been mentioned in the table of the private complaint. The evidence further shows that the Accused again asked amount of Rs.10 lakhs on 31.12.2015, and on that day the PW1 had withdrawn a sum of Rs.1,00,000/. The clarification of the PW1 that due to the bank rules which do not provide to transfer more than Rs.10 lakhs in a day. Hence, he took amount of Rs.1,00,000/ from his account. The PW1 further says that the Accused asked to give another sum of Rs.10 lakhs, but PW1 says that he paid additional amount of Rs.10,65,000/ on 25.10.2015. The PW1 says that he produced document in court. The details of bank account mentioned in the Ex.P6 belongs to PW1. The PW1 does not remember the fact of encashment of cheque mentioned in the 2nd para of the Sl.No.8 of Ex.P3. Similarly, he was unable to say or to give explanation regarding transfer of cheque bearing No.553314 for a sum of Rs.5,00,000/ without the assistance of documents. The PW1 however deposed that he has got documents for having payment of amount to the Accused. The PW1 has not mentioned the fact of credit of amount to the Accused transfered through his son namely Mr. Thulasiram and 16 C.C.No.60752/2017 similarly, the PW1 has not mentioned in the sworn statement and private complaint regarding the transfer of self drawn amount to the Accused. Therefore, the Complainant has not narrated that the amount paid by him through his son namely Mr.Thulasiram was surely credited to the account of Accused. The admission of the PW1 is that no amount was transfered to the account of the Accused through cheque at the attempt of Complainant.
22. The 19th paragraph of the crossexamination is enough to prove that the amount of Rs.50,000/ was transfered by Complainant to his son's account on 29.11.2016. The PW1 was used to transfer such many amounts when money is required to his son's account. Similarly, the Complainant had paid many other amounts in favour of third person, but he does not remember the names.
23. The strange evidence of PW1 is that he does not know about the payment of income tax by his son, but both are residing in same house. The clarification of the PW1 is that he and his son have separate transaction. Therefore, he does not know the fact of payment of income tax by his son. The tenure of the said sale deed was 6 months. The sale deed is still in the 17 C.C.No.60752/2017 custody of PW1. No person was present at the time of payment of amount to the Accused by way of cash. The PW1 has not mentioned the fact or explanation of Ex.P3 cheque in his private complaint.
24. The PW1 omitted facts of paragraph No.2 of the Private Complaint in his notice, but it is mentioned in the private complaint. The suggestion of the Accused is that no amount was paid by PW1 by way of cash or transferred by the PW1. But it may be gathered that the PW1 has not remembered some material incidents of transaction such as mode of payment, quantum of amount, date of payment of amount etc. These are all the facts are cardinal facts to discharge initial burden by Complainant. However, as discussed above, his oral evidence is inconsistent with facts mentioned in the private complaint. The suggestion of the Accused is that the Complainant himself has written the contents of Ex.P1 cheque. But PW1 denies it. The further suggestion of the Accused is that only amount of Rs.10,50,000/ was transfered to the Accused on 13.10.2016, but amount mentioned in the private compliant was not paid or transferred. Therefore, the Accused admitted that the PW1 transferred only amount of Rs.10,50,000/ to him, but not 18 C.C.No.60752/2017 transferred the amount mentioned in the case. The further suggestion of the Accused is that for the payment of amount of Rs.10,50,000/, the Complainant took some signed documents for security purpose. But PW1 denies it. Similarly, the PW1 obtained some signed blank cheques from the Accused as security purpose for the loan of Rs.10,50,000/. The PW1 misused the signed bond papers to create as a sale deed and agreement against the Accused. But the PW1 has denied and he further deposed that he never took signed blank documents as well as cheques from the Accused for security purpose.
25. The crossexamination of the PW1 further shows that one Mr. Manjunath brought Ex.P7 bond paper and he prepared it. But the suggestion of the Accused is that the Complainant himself prepared Ex.P7 as per his will and wish. But PW1 denies it. The paragraph No.27 of the cross examination of PW1 further indicates that the Complainant paid amount of Rs.10,00,000/ on 22.12.2015, as per Ex.P3 document. Regarding the payment, the PW1 admitted that amount of Rs.10 lakhs was paid to the Accused by way of cash. But the PW1 narrated in the private complaint that the amount of Rs.10 lakhs was transferred to Accused through cheque. 19 C.C.No.60752/2017 Therefore, the Complainant has mentioned inconsistent facts in his private complaint. Because in the Ex.P3 document, it has been mentioned that the amount of Rs.10 lakhs was paid to the Accused by way of cash. But in the private complaint, it has been mentioned that the said amount of Rs.10 lakhs was transferred to the Accused through cheque. It is upto the Complainant or PW1 to say the specific mode of transfer of amount of Rs.10 lakhs to the Accused. In earlier portion of the crossexamination the Accused suggested that only amount of Rs.10,50,000/ was paid by the PW1 to the Accused. The evidence of the PW1 mentioned in the para No.27 strengthen the suggestion of Accused about payment of amount of Rs.10 lakhs, but not amount of Rs.90 lakhs. PW1 says that the cheque of Rs.10 lakhs was encashed to the name of the Accused. The PW1 admits that the fact of payment of amount of Rs.10 lakhs by way of cash has not been mentioned or shown in the private complaint.
26. Therefore, the Complainant omitted some material facts and he has introduced some more new facts in his oral evidence, but they have not been mentioned in the private complaint. The Accused strongly objected the validity of Ex.P7 20 C.C.No.60752/2017 stating that the contents are written in narrow space, but the 2nd page of the said documents are written by maintaining wide margin. But the PW1 has not admitted the said fact. The Accused further challenged the validity of Ex.P7 stating that the Accused never signed in the said document because, the signature of the Accused appears in the vakalathnama and signature found in the Ex.P7 are not similar signatures. But PW1 denies it.
27. After conclusion of crossexamination of PW1 at first instance, he got marked 3 documents as Ex.P9 to Ex.11. Ex.P10 document is marked to show that the amount of Rs.60 lakhs was came to the account of the Complainant from one Nirmala Desai. The same fact has not been mentioned in the private complaint or it is not disclosed at the time of filing of the case.
28. Therefore as discussed above, the PW1 introduced new facts, which are not mentioned in the private complaint or the said facts are hidden facts by the Complainant in his case. However, the PW1 says that the Ex.P10 discloses that the amount of Rs.10 lakhs was credited to the account of the PW1 from one Nirmala Desai. According to PW1, he had withdrawn 21 C.C.No.60752/2017 amount of Rs.50 lakhs in the month of June 2015, as per Ex.P10 document. As per that document amount of Rs.3,50,000/ was transferred on 16.6.2015 to the account of one Mr. Chandrashekar. The same document also discloses that amounts of Rs.49,000/ were credited on 17.6.2015 to the account of Mr.Chandrashekar twice. Again on 19.6.2015 amount of Rs.2 lakhs also transferred to the account of Mr.Chandrashekar. Another sum of Rs.19,991/ was transferred in the month of June in favour of one Mr.Saman. Again on 23.6.2015, a sum of Rs.90,000/ was transferred to the account of Mr.Chandrashekar on 25.6.2015 and amount of Rs.1,10,000/ was also transfered to the name of Harish Kumar on 30.6.2015. An amount of Rs. 5 lakhs each separately transferred in the name of Mr.Udaykumar and Mrs.Anitha. The Ex.P10 document shows that the Complainant had transferred many quantum of amounts in favour of various persons, but not in favour of Accused. The purpose of production of Ex.P10 document to prove that various amounts were transfered to the Accused. But it does not disclose the fact of transfer of amount particularly to the name of Accused.
22 C.C.No.60752/2017
29. The PW1 further says that asper Ex.P10 he used to withdraw lakhs of amount for his own purpose. Ultimately the PW1 clearly admits that the Ex.P10 document does not disclose the fact of transfer of amounts to the Accused. Therefore, the production of Ex.P10 is meaningless to his case or it does not give support regarding transfer of amount to the account of the Accused.
30. Except himself, the Complainant examined two more witnesses as PW2 and PW3. PW2 is one Mr. Umashankar. He says that he aware about the official, personal work and business of Complainant and his family. Due to the age factor, the Complainant is unable to attend the day to day proceeding of his case. Therefore, he assisted the Complainant.
31. The trustworthy of the PW2 is questioned in the crossexamination. The cross of the PW2 discloses that the Complainant is his elder uncle. The PW2 is the driver of Complainant. Upto 2014, he worked in Ashok Leyland Company. Thereafter the PW2 started to assist Complainant as his driver to his vehicle. The PW2 further deposed evidence about the family background of the Complainant. It is immaterial to this case. The PW2 says that a transaction was 23 C.C.No.60752/2017 took place in between Complainant and Accused of an immovable property.
32. The evidence of PW2 further shows that the parties of this case have made an agreement regarding property of Sy.No.2/8, situates at Hoodi village. The 4th paragraph of the crossexamination of PW2 creates doubt and it is an inconsistent statement because he says that the Complainant had disclosed with PW2 regarding execution of an agreement on 22.12.2015 pertaining to the property. Therefore, the PW2 is the hearsay witness about the agreement dtd.22.12.2015. The PW2 further says that on that day he was not present. But the PW1 in the crossexamination says that on the date of sale agreement PW2 and his son were present.
33. Therefore, the comparative study of evidence of PW1 recorded in paragraph No.14 and the crossexamination of the PW2 recorded in paragraph No.4 definitely create doubt about the presence of PW2 on the date of agreement. In Cheque bounce cases the presence of witness, his signature is not important. But, if Cheque is given for payment of sale amount, agreement amount, or other amount, the proof of execution of document, presence of the parties and witness is required to be 24 C.C.No.60752/2017 proved, because such document will have play major role to decide the transaction. The dispute arose between the parties regarding amount of sale transaction. Prior to issuance of Cheque, the Complainant and Accused have involved to prepare sale agreement, sale deed etc., in the presence of third person. The presence of the PW2 at the time of execution of sale agreement has been introduced by the Complainant. Therefore, it is for the Complainant to prove that the PW2 was present on that particular date of execution of the document. But it is not proved, because the PW2 says that his son and one Mr. Umashankar were present. But the evidence of the PW2 is quite different. Because he himself denied his presence in the spot of execution of agreement. Therefore, the evidence of the PW2 is not sufficient evidence as to prove the payment of the amount by the Complainant in land transaction between parties of this case.
34. The last portion of the crossexamination of the PW2 creates another angle of doubt about payment of sale consideration amount or payment of the amount to the Accused, because the PW2 says that he went along with his uncle or Complainant to one Kamat Hotel and on that day the 25 C.C.No.60752/2017 Complainant paid amount of Rs.10 lakhs to the Accused. PW2 says that he has seen the said transaction. He further says that Complainant told him that he already paid amount of Rs.75 lakhs and the payment of amount of Rs.10 lakhs is the final quantum of amount in the total transaction. Therefore, the evidence of the PW1 and PW2 restrict the fact of payment of amount of only Rs.10 lakhs, but not amount of Rs.85 or 90 lakhs. The PW2 also says that in some occasions the Complainant paid amounts to one Mr. Subbanna and Mr. Thulasiram through Cheques. The PW2 also says that the Complainant included the fact of payment of amounts to Mr. Subanna in this case. Therefore, the Complainant definitely inserted the facts of payment of amount in favour of Mr. Subbanna, Thulasiram etc. Hence, it definitely presumed that the Complainant has not paid amounts to the Accused, but the Complainant narrated the fact of payment of amounts to others in his case.
35. PW3 is the son of the Complainant. He in the chief examination says that the Accused is their family member and he agreed to sell the property bearing Sy.No.2/8, presently within the purview of BBMP jurisdiction having khatha No.338, 26 C.C.No.60752/2017 plot No.6. situated at Hoodi village of K.R. Puram. In that connection the father of the PW3 and Accused agreed to sell the property for total sale consideration of Rs.72 lakhs. Therefore, the PW3 has introduced another set of evidence, which creates doubt regarding the exact quantum of amount involved in the sale transaction. Hence, the evidence of PW3 discloses another quantum of amount of sale consideration but, it does not tally with the evidence of PW1 and PW2 particularly regarding the quantum of amount. The PW3 also deposed similar evidence as that of the evidence of PW2 in respect of his presence in the spot during the time of preparation of agreement. His evidence further discloses that he was not at all present at the time of execution of said agreement and he has not seen it. The PW3 also has not produced any separate document regarding transfer of amount of Rs.60 lakhs by his sister namely Mrs.Nirmala Desai in favour of the father of the PW3. The PW3 used to draw amounts from his father's account as and when required.
36. Therefore, careful analyze of the evidence of PW1 to PW3 definitely creates doubt in the mind of the court regarding passing of sale consideration amount by Complainant to 27 C.C.No.60752/2017 Accused. Their evidence is enough to prove that the Complainant had paid amount of Rs.10 lakhs, but not amount mentioned in the Cheque.
37. Coming to the documentary proof of the Complainant, total 11 documents have been produced. The Ex.P1 is the Cheque for a sum of Rs.90 lakhs issued in the name of the Complainant drawn on HDFC Bank. As discussed above, the PW1 to PW3 have given different types of evidence regarding quantum of the amount. In one portion of the cross examination, the PW1 says that he paid total amount of Rs.85 lakhs. But PW2 says that he has seen the payment of amount of Rs.10 lakhs only. But he has not seen the payment of remaining amount, but it is hearing fact. Whereas PW3 says that his father and Accused agreed for sale transaction of Rs.72 lakhs.
38. Therefore, the oral evidence of the PW1 to PW3 mismatches especially regarding quantum of amount. However, the Complainant has placed Ex.P1 Cheque for sum of Rs. 90 lakhs. But, proof is absent. Ex.P2 is a document for dishonour of the Ex.P1 Cheque. Undoubtedly, the said Cheque was dishonoured. There is not dispute between parties regarding 28 C.C.No.60752/2017 dishonour of the Cheque. Ex.P3 is the demand notice dtd.5.9.2017. In the demand notice, the informer has disclosed another set of story about method of payment of amount, which is against to the facts mentioned in the private complaint pertaining to the method of passing of amount. Because, the paragraph No.7 of the private complaint shows that the Complainant paid amount mentioned in the Sl.No.10 and 11 as cash whereas, the Sl.No.10 mentioned in the private complaint discloses another method of payment because it discloses that the payment mentioned in the Sl.No.10 was made through Cheque. Therefore, the facts mentioned in the private complaint and facts mentioned in the Ex.P3 notice are not equivalent facts each other. Therefore, it may be said that the Complainant has improved or omitted some facts in various parts of his pleading. Therefore, those improvements, omissions create doubt about the true payment few amount in sale transaction. Ex.P4 and Ex.P5 are the postal receipt and track to comply the provisions of Sec.138(b) of N.I. Act. It is not disputed fact. ExP.6 is the bank statement of the Complainant.
39. As discussed above, the description or details of the payment of amounts mentioned in Ex.P6 were not paid directly 29 C.C.No.60752/2017 to the Accused, but Complainant used the withdrawal amount for his own purpose in some occasions. Therefore, the Ex.P6 is not a clearcut document or it is not a documentary proof for payment of the amount. PW1 to PW3 have also not deposed similar evidence each other atleast to prove the payment of the amount.
40. Therefore, the document produced by the Complainant and oral evidence of 3 witnesses create lot of doubts, inconsistence, improvement, omission, etc. In such doubtful case, it is not proper to grant relief blindly without the support of oral or documentary proof. Ex.P7 is the agreement dtd.22.12.2015. But, the PW2 and PW3 have deposed that they were absent on that day. The portion of witness column of Ex.P7, left as it is or no witness has signed in the witness column. Therefore, authentication of genuineness of execution of Ex.P7 is not proved. The PW3 is none other than the son of Complainant. PW2 says that he majorly assisted the Complainant to carry his vehicle. Therefore, if really the Ex.P7 is executed as per procedure, the persons who were present at that time in the spot would have chance to put their signatures in agreement for sale. Hence, the trueness of Ex.P7 is not 30 C.C.No.60752/2017 proved. Ex.P8 is the certified copy of sale deed dtd.9.9.2015 between Mr.Arun Sharma, Mrs.Geetha Chandrashekaran and Mr.H.V. Manjunath. The said document is produced to prove that, the Accused of this case had purchased the property from above said two persons for consideration amount of Rs.72,82,500/. Therefore, the purpose of production of document that the Accused had purchased the property for above said quantum of amount and the Complainant says that the Accused was badly required such amount to purchase that property. Therefore, he paid the amount. Ex.P9 is the death certificate of one Mr. Malathi Mallesh. The Ex.P10 and ExP11 have been produced to prove the method of payment of amounts to the Accused, but admittedly, that amounts were not transferred. Hence, the Ex.P10 and Ex.P11 do not give much weight to the case of the Complainant.
41. To rebut the case of the Complainant, the Accused has examined himself as DW1 deposing that the Complainant is stranger to him. But, his son Mr. Thulasiram known to him in connection of a property matter of Sy.No.219. In a real estate business the son of the Complainant namely Mr.Thulasiram and Accused bound to deposit equal amount. Therefore, a 31 C.C.No.60752/2017 negotiation was held. In the result of said negotiation, the son of the Complainant and DW1 had deposited Rs.10 lakhs each. However, the evidence shows that no negotiation was held in the presence of DW1 pertaining to the property transaction. But the DW1 admitted the execution of agreement of sale. However, the said business was not continued. Therefore, the DW1 had paid amount of Rs.10 lakhs and issued one Cheque for a sum of Rs.10 lakhs. Hence, the admission of the Accused is that he has issued the Cheque in favour of Thulasiram (Son of the Complainant), but not in favour of Complainant. The Accused denied the compliance of Sec.138(n) of N.I. Act. Therefore, the final say of the DW1 is that at any point of time, the Complainant never paid the amount of Rs.90 lakhs and participated in sale transaction.
42. The crossexamination of the DW1 is enough to prove that he is residing in the given address of the private complaint Therefore, the question of noncompliance of Sec.138(b) of N.I. Act does not arise for consideration since the Complainant got issued notice to the address of the Accused. However, the DW1 denies the service of notice. The DW1 denies his signature of Ex.P7. The cross of the DW1 further shows that after 32 C.C.No.60752/2017 repayment of entire amount of Rs.10 lakhs, he asked to return his Cheques. Though Complainant has assured to return his Cheques, but he did not do so. However, the Accused did not give any representation for stop payment to the bank. Similarly, he has not given any police complaint. The DW1 admits that he attached his mobile number to his bank account and every transaction in bank will be messaged to his phone. The contention of the Complainant is that the Accused has got information of presentation of the Cheque, however, he willfully avoiding to say that he has no knowledge about the presentation of the Cheque.
43. The evidence of DW1 further shows that he purchased one property on 9.9.2015, from one one Mr.Arun Sharma and Mrs.Geetha Chandrashekar. The said document has been marked as Ex.P8. The contention of the Complainant is that the Accused was required amount at that time to purchase the said property. But, the Complainant has not produced any document to show that the Accused used the amount given by the Complainant in above said sale transaction. 33 C.C.No.60752/2017
44. The learned for the Complainant and Accused relied on any decisions of Hon'ble Apex Court of India and other Hon'ble High Courts.
1. AIR 2020 Supreme Court 945 (APS Forex Services Pvt. Ltd.Vs. Shakti International Fashion Linkers)
2. AIR 2019 Supreme Court 2446 (Bir Singh V/s.
Mukesh Kumar)
3. AIR 2019 Supreme Court 1625 (Ripudaan Singh V/s. Balakrishna)
4. ILR 2007 KAR 247 (S.B. Ittagi and other Vs. S.V. Sulochana and others)
45. In the first ratio of Hon'ble Supreme Court of India, reported in AIR 2020 SC 945, between APS Forex Services Pvt. Ltd., and Shakti International Fashion Linkers, has held that; once the Accused admits this signature in the disputed Cheque, court is duty bound to convict the Accused for the offence of Sec.138 of N.I. Act. In the present case also the Accused has admitted his signature, however his plea is that he has issued the said Cheque in favour of the son of Complainant. In the present case the Complainant has utterly failed to prove that the Accused had issued the disputed Cheque in his favour for payment of Cheque amount. Again the Hon'ble Supreme Court of India has held that; to rebut the statutory presumption u/Sec.139 of N.I. Act, a strong and credible evidence is 34 C.C.No.60752/2017 required. Conflict statements do not help the Accused to come out from the obligation or escape from the clutches of law.
46. The learned Counsel for the Accused has furnished following total 8 citations.
1. ILR 2008 KAR 4629
2. ILR 2009 KAR 172
3. ILR 2007 KAR 2709
4. Cri. Appeal 181/1999
5. LAWS (KAR)2009 4 48
6. (2019) 5 SCC 418
7. Criminal Appeal No.636/2019
8. Criminal Appeal No.2402/2014
47. However, some of the citations are not applicable to the facts of the case and some of the judgements furnished by the Accused are overruled by the Hon'ble Supreme Court of India.
48. As discussed above, many loopholes and weaknesses are found in the case of the Complainant because, he has not produced socalled diary. Though he has produced his bank statement, but believable entry is not found in it about transfer of the amounts to the Accused in many occasions or frequently. The Ex.P6 is the bank statement. In the crossexamination the 35 C.C.No.60752/2017 PW1 admits that though he had withdrawn many amounts from his account, that amounts were used for his own purpose or personal purpose. In some occasions, he gave withdrawn amount to his son namely Mr. Thulasiram. Therefore, it is not possible to prove that the said withdrawn amount was duly reached or transferred to the Accused. In some occasions, the PW1 says that, he used to withdraw his amounts from his account and transfer that amounts to the account of his son. Then his son had transferred that amounts to the Accused. But these are all the mere oral statements, but no documents are found. In the crossexamination the PW1 says that he used to transfer amounts to some other persons like Mr.Subbanna and son of the Complainant etc. However, the Complainant added that amounts in the paragraph No.7 calculation table.
49. As discussed above, the calculation table shown in the private complaint and demand notice are not tally with each other. Because, the calculation table described in para No.7 of private complaint speak about the transfer of many amounts through Cheque. But the calculation table described in demand notice is against the explanation of paragraph No.7 of the 36 C.C.No.60752/2017 private complaint. In the demand notice, the author of the notice has mentioned that the amount of Sl.No.10 and 11 were transferred by way of cash. Therefore, it may be said that the Complainant has not got a clear idea or picture regarding transfer of amounts to the Accused. Innocence, mercy etc., are not ground to grant relief. The learned Counsel for Complainant during the time of argument has highlighted the discrepancies found in the evidence of PW1, but his clarification is that due to age factor, and death of his daughter, the PW1 deeply disturbed by various untoward incidents. Therefore, some slight mistakes are found in his evidence. But the said mistakes are very crucial mistakes to disbelieve his case.
50. The PW2 and PW3 have deposed different evidence as that of the evidence of PW1. The evidence of the PW2 and PW3 are enough to prove that they were not at all present in the spot at the time of execution of Ex.P7 agreement. However, the PW1 says that the PW2 and PW3 were present in the spot. The absence of PW2 and PW3 is proved in Ex.P7 document because, if they really were present in the spot, they could have put their signatures in the witness column. Therefore, it may be said 37 C.C.No.60752/2017 that the document of Ex.P7 was not executed in the presence of PW2 and PW3.
51. The income capacity of the Complainant is also required to be taken for discussion. Because, he has not produced believable document to prove it. The amount of Rs.90 lakhs is not a meager amount. Under such circumstances, grant of relief is not suitable. The said fact has been discussed by the Hon'blee Supreme Court of India, in the case of Basalingappa V/s Mudibasappa (Crl. Appeal No.636/2019 date of decision on 9.4.2019) has held that "it is settled position of law that when an Accused has to rebut the presumption u/Sec.139 of N.I. Act, the standard of proof for doing so is that of preponderance of probabilities. If the Accused is able to rise a probable defence which creates doubt about the existence of legally enforceable debt or liability, the prosecution can fail. The Accused can rely on the materials submitted by Complainant in order to rise such a defence and it is enforceable debt in some cases, the Accused may not need to adduce evidence of his or her own." The said ratio of Hon'ble Supreme Court of India may be applicable because, the Complainant has failed to prove his gaining capacity or income capacity.
38 C.C.No.60752/2017
52. The Hon'ble High Court of Delhi, in the case of M/s. Total Finaelf India Ltd. V/s. Rashmi Parnami (Cril Apl.No.1239/2011 decided on 3.5.2013), wherein it is observed that to establish that the Cheque in question were given in consideration of existing debt or liability, the burden is heavily upon the Complainant to prove the same. The Complainant did not elaborate as to how much debt or liability was thereon any specific date promoting the respondent to issue the Cheque in question. The ratio of the Hon'ble high Court of Delhi, is applicable to this case because of many inconsistent statements are found in the evidence of PW1. He also not disclosed that how much amounts were paid or transferred to the Accused on various dates? The dates and quantum of amounts were not described. The PW1 says that he does not remember the date and quantum of amount paid to the Accused. Therefore, it may be said that the Complainant failed to introduce a specific case against the Accused which forced him to issue the Cheque in question. The similar facts have been discussed by the Hon'ble High Court of Punjab and Haryan, in the case of Kiran Finance Company V/s. Sukhdev, reported in 2006 Cri.L.J 766, wherein it is 39 C.C.No.60752/2017 observed "it is the bounden duty of the Complainant to establish its case by getting specific date and time regarding the payment of installment of debt or liability by the respondent, in order to show that the claim of the Complainant was not timebarred."
53. Therefore, it may be said that the Complainant has utterly failed to prove that the Accused had issued the Cheque in question for payment of the amount of Rs.90 lakhs. The evidence of the PW2 and PW3 do not help to the case of the Complainant because, it is proved that PW2 has not seen the payment of amount of Rs.72 lakhs, but he has seen the payment of Rs.10 lakhs only. He deposed that his uncle (Complainant) told him that the payment of amount of Rs.10 lakhs made on that particular date in his presence is the last payment and Complainant already paid amount of Rs.72 lakhs. But, as discussed above, the PW2 never seen the fact of payment of amount of Rs.72 lakhs. The PW3 being the son of Complainant also not deposed a clear evidence. His evidence is also not sufficient to prove that his father paid amount to the Accused in connection of said sale transaction. 40 C.C.No.60752/2017
54. It is a cardinal principle of criminal jurisprudence that, it is the burden of the prosecution to prove the guilt of the Accused beyond reasonable doubt. Statutory presumptions, wherever available create and exception to this cardinal principle by shifting the burden of proof to the opposite party. Among the notable presumptions available under the scheme of N.I. Act, two are essential when it comes to the proof of the offence u/Sec.138 of N.I. Act. The Hon'ble Supreme Court of India, in John K. Abraham V/s. Simon C Abraham and Another, reported in (2014) 2 SCC 236 has observed in paragraph No.9 that in order to draw the presumption u/Secs.118 and 139 of N.I. Act, the burden is cast heavily upon the Complainant to show that he had the requisite funds for advancing the money to the Accused. Therefore, though statutory presumption is available in favour of Complainant in the matter of Sec.138 of N.I. Act, some basic burden must be discharged by the person, who approach before the court by claiming the amount or relief. Unless proper discharge of burden, onus cannot be shifted against the Accused to disprove the allegation. Therefore, when initial burden is not discharged, relief cannot be granted only for mere existence of statute. 41 C.C.No.60752/2017
55. Hence, finally it may be said that the Complainant obviously failed to prove the fact of passing of consideration amount in sale transaction. He has not produced some cardinal documents. The Complainant calculated the amounts paid to others as claim amount against Accused. In some occasions he has not directly paid amount to the Accused, but he says that he transferred the amount to the account of his son and that amounts were transferred to the Accused. However, no document is placed as documentary proof. Many inconsistent evidence statements are found in the evidence of PW1 to PW3. In some occasions, the Complainant has deposed improved evidence, but the facts have not been mentioned in the private complaint.
56. Therefore, it is proved that the Accused had not issued the disputed Cheque for payment of amount of Rs.90 lakhs. The amount calculated by Complainant is not single quantum because in complaint, demand notice and in his oral evidence, he has introduced different quantum of paid amounts. There is no stagnant statement in the evidence of Complainant. Therefore, when Complainant himself failed to prove his initial burden of payment of amount to the Accused, then nothing can be expected by the Accused to discharge some facts. Resulting 42 C.C.No.60752/2017 of said discussion, the Point No.1 is answered in the Negative .
57. POINT No.2 : In view of discussion held in Point No.1, I proceed to pass the following :
ORDER Acting under Section 255 (1) of Cr.P.C., the accused is acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bonds executed by the accused shall continue till expiry of the appeal period. Thereafter, it shall be extinguished automatically. (Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 12th day of February, 2021) (KAMALAKSHA D), XXXIV ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. Venkatappa C. P.W.2 Mr. Uma Shankar S. P.W.3 Mr. Tulasiram V.
2. Documents marked on behalf of complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of accused
Ex.P.2 Bank endorsement
Ex.P.3 Office copy of Legal Notice
Ex.P.4 Postal Receipt
Ex.P.5 Postal track copy
Ex.P.6 Bank statement issued by SBI
43 C.C.No.60752/2017
Ex.P.7 Sale agreement
Ex.P.8 Certified copy of Sale Deed
Ex.P.9 Death Certificate
Ex.P.10 Account summary
Ex.P.11 Bank statement
3. Witnesses examined on behalf of Accused :
D.W.1 Mr. H.V. Manjunath
4. Documents marked on behalf of Accused : NIL (KAMALAKSHA D), XXXIV ACMM, BENGALURU.