Bangalore District Court
V. Sridhara Reddy vs T. Raghava Reddy on 10 June, 2024
KABC030481062022
Presented on : 16-06-2022
Registered on : 16-06-2022
Decided on : 10-06-2024
Duration : 1 years, 11 months, 24 days
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SRI VENKANNA BASAPPA HOSAMANI,
B.Com. LL.B.,(Spl.)
XIII ACMM, BENGALURU.
Dated: This the 10th day of June, 2024
C.C. NO.18528/2022
COMPLAINANT: Sri. V.Sridhara Reddy,
S/o V.S.Rajagopala Reddy,
Aged about 49 years,
R/a No.100, 4th main,
B.H.C.S. Layout,
BTM Layout, 2nd stage,
Bengaluru - 560 076.
(Reptd. by Sri. K.V.Chandra
Reddy, Advocate)
V/s.
ACCUSED: Mr. T. Raghava Reddy,
S/o Bhogi Sena Reddy,
Aged about 49 years,
JUDGMENT -2- C.C.18528/2022
R/a. No.1573, 8th main, 1st cross,
BEML Layout,
Near BDA Complex office,
Bengaluru.
(Reptd. by Sri. U.J.Hariprasad,
Advocate)
Offence Under Section 138 of Negotiable
Instruments Act, 1881.
Plea of the accused Pleaded not guilty
Final order ACQUITTED
*****
:: JUDGMENT ::
This is a private complaint filed by the complainant against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
2. The factual matrix of the complainant's case are as under;
The complainant and accused are known to each other for the past several years. Accused approached the complainant for financial assistance of a sum of Rs.60,00,000/- in the year 2018. Considering the request of the accused, complainant paid the amount of JUDGMENT -3- C.C.18528/2022 Rs.60,00,000/- to the accused on different dates. Accused has agreed to repay the said amount within six months from the date of borrowal. After lapse of six months accused has repaid a sum of Rs.40,00,000/- by way of transfer on different dates but neglected to repay the balance amount of Rs.20,00,000/-. On repeated request and demand to repay the balance amount of Rs.20,00,000/- accused issued a cheque bearing No.593570 dated 21.03.2022 for a sum of Rs.5,00,000/-, cheque bearing No.593569 dated 21.03.2022 for a sum of Rs.5,00,000/-, cheque bearing No.593571 dated 25.03.2022 for a sum of Rs.5,00,000/- and cheque bearing No.593572 dated 23.03.2022 for a sum of Rs.5,00,000/- all are drawn on State Bank of India, BEML Layout, Rajarajeshwarinagar Branch, Bengaluru in favour of complainant. On presentation of the said cheques for encashment on 21.03.2022 and 30.03.2022 respectively, the same were returned with an endorsement "Payment stopped by the Drawer" and Banker had issued memo dated 23.03.2022 and 04.04.2022 respectively. The complainant has got issued legal notice through his JUDGMENT -4- C.C.18528/2022 counsel on 07.04.2022 calling upon the accused to repay the cheque amount within 15 days from the date of receipt of the notice and the said notice unclaimed by the accused on 08.04.2022. Hence, the complainant has filed this present complaint.
3. In order to prove the case of the complainant, complainant got examined himself as PW.1 and got marked Ex.P1 to Ex.P11. This court after taking cognizance of the offence issued summons to the accused.
4. Inspite of service of summons, accused not appeared, hence NBW has been issued against the accused, then accused voluntarily appeared before this court and filed bail application through his counsel and he has got enlarged on bail. The sum and substance of the accusation has been read over to the accused and he has denied the same and not pleaded guilty and submitted that he has defence to make.
5. After completion of evidence of the complainant side, statement of accused under section 313 of Cr.P.C.
JUDGMENT -5- C.C.18528/2022 was recorded and the incriminating evidence appearing against the accused is read over and explained to the accused and they have denied the same and accused have lead the defence evidence. The accused examined himself as DW1. During the course of cross-examination of PW1 accused got marked documents at Ex.D.1 and Ex.D.2.
6. Heard the arguments of Sri.KVC, advocate for complainant. Sri.UJH, advocate for accused filed written arguments. I have carefully examined the materials placed on record.
7. The counsel for the accused relied the following rulings:
1) 2022 (3) DCR 417 Dashrathbhai Trikambahai Patel Vs. Hitesh Mahendrabhai Patel & another
2) CDJ2007 SC 1118 John K. John Vs. Tom Varghese & another
3) 2014 (1) DCR 9 John K. Abraham Vs. Simon C Abraham & Another
4) CDJ 2007 Kar HC 422 Vishnudas Vs. Mr. Vijaya Mahanthesh JUDGMENT -6- C.C.18528/2022
5) 2011 ACD 1136 (KER) Santhi C Santhi Bhavan Vs. Mary Sherly and another
6) CDJ 2008 SC 047 (2008 AIR SCW 738) Krishna Janardhana Bhat Vs. Dattatraya G. Hegde
7) CDJ 2007 SC 214 {2007) 5 SCC 264} Kamala S. Vs. Vidyadharan M.J. & another
8) CDJ 2013 SC 110 Vijay Vs. Laxman & another
9) CDJ 2013 DHC 2097 (2013 (1) DCR 417 Kulvinder Singh Vs. Kafeel Ahmed
10) 2023 (3) DCR 524 K.Damodaran Vs. M.Shivaramareddy
11) 2023 (3) DCR 553 M/s.Khushboos Restaurant Vs. Mr.Suhail Khan
12) CDJ 2019 Kar HC 1051 Yeshwanth Kumar Vs. Shanth Kumar
13) CDJ 2019 SC 471 Basavalingappa Vs. Mudibasappa
8. The following points that would arise for my consideration are;
1. Whether the complainant establishes that, the accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act?
2. What Order?
JUDGMENT -7- C.C.18528/2022
9. On perusal of materials placed on record and in the light of Arguments, my findings to the above points are as under:-
Point No.1: In the NEGATIVE
Point No.2: As per final order for the
following;
:: R E A S O N S ::
The objects of Section 138 of N.I. Act:
In the world of business, the cheque, as a negotiable instrument, was losing its credibility because of lack of responsibility on the part of the drawer. To bring back that credibility, to inculcate faith in the efficacy of banking operations in transacting business on negotiable instrument in general to bring the erring drawer to book, so that such irresponsibility is not perpetuated, to protect the honest drawer, to safeguard the payee who is almost a loser, this section was brought on statute. This aspect has been stated in the case of Vinaya Devanna Nayak V/s.
Ryot Sewa Sahakari Bank Ltd., reported in 2008 (2) SCC 305, this decision has been in the case of Bir Singh V/s.
Mukesh Kumar reported in (2019) 4 SCC 197.
JUDGMENT -8- C.C.18528/2022 The section 138 of the Negotiable Instruments Act, has been enacted to lend credibility to financial transactions, more particularly to negotiable instruments. The main ingredients of the offence under Section 138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 30 days of the receipt of the notice under the proviso
(b) to Section 138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
Apart from this, Section 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
JUDGMENT -9- C.C.18528/2022 "It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
Also, Sec. 118 of the Negotiable Instruments Act states;
"Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred for consideration."
Perusal of records it discloses that, the complainant has followed the procedure and time lines fixed under Section 138 of the Negotiable Instruments Act from the date of dishonor of cheque till presentation of private complaint. There is no procedural lapse on the part of complainant.
JUDGMENT - 10 - C.C.18528/2022
10. POINT NO.1:- It is the specific case of the
complainant is that, the complainant and accused are known to each other. The accused has requested the complainant for financial assistance of Rs.60,00,000/- in the year 2018 and complainant had advanced a sum of Rs.60,00,000/- to the accused on different dates. After lapse of stipulated period, accused repaid a sum of Rs.40,00,000/- by way of transfer on different dates and failed to repay the balance amount of Rs.20,00,000/-. On repeated request and demand made by the complainant accused issued Ex.P.1, Ex.P3, Ex.P.5 and Ex.P.7 cheques. On presentation of the said cheques same were dishonored for the reasons "Payment stopped by the Drawer" and banker has issued Ex.P.2, Ex.P.4, Ex.P.6 and Ex.P.8 endorsements. Inspite of issuance of Ex.P.9 demand notice accused has failed to repay the cheques amount. Hence, complainant filed this case and prays for conviction of the accused.
11. The court can draw the presumption available under Section 139 of the Negotiable Instruments Act in JUDGMENT - 11 - C.C.18528/2022 favour of the complainant. The said presumption is rebuttable presumption, if once the complainant has proves initial burden lies on him, the accused ought to have rebut the case of the complainant by adducing or producing cogent, relevant and reliable evidence. If the accused has rebutted the case of the complainant, then the onus is shifts on the complainant, then the complainant has to prove his case independently, same has been held by the Hon'ble Apex court in Rangappa V/s. Mohan AIR 2010 SCC 1898.
12. The accused has to rebut the case of the complainant with preponderance of probabilities, if the accused has rebut the case of the complainant on preponderance of probabilities, then the onus shifts on the complainant to prove his case, the same has been held in the case of Basalingappa V/s. Mudibasappa (2019) 5 SCC 418 the Hon'ble Supreme Court of India has summarized the principles on Sections 118(a) and 139 of the Negotiable Instruments Act.
JUDGMENT - 12 - C.C.18528/2022
13. The complainant in order to prove his case himself examined as PW1 and got marked documents as Ex.P.1 to Ex.P.11. Ex.P.1, Ex.P.3, Ex.P.5 and Ex.P.7 cheques belongs to the accused. On presentation of the said cheques same were dishonored for the reasons "Payment stopped by the Drawer", for that Banker has issued Ex.P.2, Ex.P.4, Ex.P.6 and Ex.P.8. The complainant has got issued the demand notice to the accused as per Ex.P.9. The Ex.P.1 to Ex.P.9 are discloses that, the complainant has complied the necessary / mandatory ingredients of Section 138 of Negotiable Instrument Act, 1881. Once the complainant has discharged initial burden lies on him the accused has to rebut the same.
14. Admittedly, the complainant has to prove the initial burden lies on him i.e. on request of the accused he has advanced a sum of Rs.60,00,000/- and he has repaid Rs.40,00,000/- after completion of stipulated period and neglected to repay the remaining balance amount of Rs.20,00,000/- and for repayment of the said loan amount accused had issued Ex.P.1, Ex.P.3, Ex.P.5 and Ex.P.7. On presentation of the said cheque same were dishonored, JUDGMENT - 13 - C.C.18528/2022 inspite of issuance of demand notice by the complainant accused had failed to repay the cheque amount.
15. Let me see how the complainant has proves the initial burden lies on him. On perusal of the complaint, Ex.P.9 copy of demand notice and examination-in-chief of PW1, no where complainant had stated the date of advancement of loan amount to the accused. The complainant has not specifically stated the on which date accused was approached to him for seeking financial assistance and on which date he has advanced the said loan amount. It is the duty of the complainant to specifically say the date of issuance of loan amount. But in this case the complainant has failed to state the date of issuance of loan amount. During the course of cross- examination PW1 stated that, he do not know the specific date when the accused has sought the loan and also he deposed that he do not know the exact date and month of the advancement of loan to the accused. Further he deposed that, he do not know the denomination of the amount advanced by him. These facts are going to show JUDGMENT - 14 - C.C.18528/2022 that, is really complainant had advanced the huge loan of Rs.60,000/- as stated by him. The complainant has not stated his source of income before this court.
16. During the course of cross-examination PW1 he admitted that, he has received the part payment, which is culled out and runs thus:
"ದಿಃ20.01.2022 ರ ನಂತರ ಆರೋಪಿ ಖಾತೆಯಿಂದ ನನ್ನ ಹೆಂಡತಿಯ ಖಾತೆಗೆ 6 ಲಕ್ಷ ಹಣ ವರ್ಗಾವಣೆ ಆಗಿದೆ. ಆರೋಪಿಯ ಯುಪಿಐ ಖಾತೆಯಿಂದ ದಿಃ21.06.2021 ನನ್ನ ಹಾಗೂ ನನ್ನ ಹೆಂಡತಿಯ ಖಾತೆಗೆ ತಲಾ 2 ಲಕ್ಷ ಹಣ ಬಂದಿದೆ ಎಂದರೆ ಸರಿ. ಸದರಿ ಸ್ಟೇಟ್ಮೆಂಟ್ ಸಾಕ್ಷಿಗೆ ತೋರಿಸಲಾಗಿ ಗುರುತಿಸಿದ್ದು ಆ ದಾಖಲೆಯನ್ನು ನಿ.ಡಿ.1 ಎಂದು ಗುರುತಿಸಲಾಯಿತು ..........
ದಿಃ 21.06.2021 ರಂದು ನನ್ನ ಖಾತೆಗೆ ರೂ.2 ಲಕ್ಷ ಹಣ ಬಂದಿದೆ ಅಂದರೆ ಸರಿ. ಸದರಿ ಪಾಸ್ ಪುಸ್ತಕವನ್ನು ಸಾಕ್ಷಿಗೆ ತೋರಿಸಲಾಗಿ ಗುರುತಿಸಿದ್ದು ಆ ದಾಖಲೆಯನ್ನು ನಿ.ಡಿ. 2 ಎಂದು ಗುರುತಿಸಲಾಯಿತು. ಈ 6 ಲಕ್ಷ ಹಣ ಸಂದಾಯವಾದ ಬಗ್ಗೆ ಡಿಮಾಂಡ್ ನೆಾೕಟೀಸ್ ದೂರಿನಲ್ಲಿ ಅದ.ವಾ ಮುಖ್ಯ ವಿಚಾರಣೆಯಲ್ಲಿ ಹೇಳಿಲ್ಲ ಅಂದರೆ ಸರಿ."
17. The complainant himself admitted and identified the Ex.D.1 and Ex.D.2 and he specifically admitted that, he has received Rs.6,00,000/- from the accused. It is also JUDGMENT - 15 - C.C.18528/2022 specifically admitted by the complainant that, he has not stated the receipt of Rs.6,00,000/- in his demand notice, complaint or in his examination-in-chief.
18. As per provisions of Section 56 of the Negotiable Instruments Act, 1881, the complainant has duty bound to make endorsement before presentation of the cheque with regard to part payment made by the accused. At this stage, I intend to quote Section 56 of the Negotiable Instrument Act.
"56. Endorsement for part of sum due: - No writing on a negotiable instrument is valid for the purpose of negotiation if such writing purports to transfer only a part of the amount appearing to be due on the instrument; but where such amount has been partly paid a note to that effect may be indorsed on the instrument, which may then be negotiated for the balance."
The above quoted provision is very much clear that, there is no ambiguity in the present case, after repayment of part payment complainant has failed to put the endorsement before presentation of Ex.P.1, Ex.P.3, Ex.P.5 JUDGMENT - 16 - C.C.18528/2022 and Ex.P.7 cheques. By considering the same and other materials placed on record i.e., more particularly the evidence of PW.1, I am of the opinion that, the complainant has violated the mandatory provisions of Section 56 of the Negotiable Instruments Act, 1881. Therefore, the ruling relied by the counsel for the accused i.e. (2023) 1 Supreme Court Cases 578 in the case of Dashrathbhai Trikambhai Patel V/s. Hitesh Mahendrabhai Pate and another, is applicable to the present case on hand. Wherein, the Hon'ble Supreme Court of India has held that:
"34.2 If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque."
"34.3 When a part or whole of the sum represented on the cheque is paid by drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any, if the cheque i.e, endorsed is dishonoured when it is sought to be encashed upon JUDGMENT - 17 - C.C.18528/2022 maturity, then the offence u/s. 138 is stands attracted."
19. Ex.P.1 and Ex.P.3 cheques were presented on 21.03.2022 and Ex.P.5 and Ex.P.7 cheques were presented on 30.03.2022 and Ex.P.9 demand notice issued on 07.04.2022, after repayment of part payment. In such circumstances it is the duty of the complainant is that, he has to endorse the same before presentation of the cheque. In the present case on hand, the complainant has not put any endorsement as required under Section 56 of the Negotiable Instrument Act. Hence, the above ruling is also applicable to the present case on hand and it helps to the accused and not the complainant.
20. The counsel for the accused in his written argument stated that, the complainant has not stated the date of advancement of loan amount and has not explained the denomination of the loan amount. Hence, itself is creates the doubt in the mind of the court that, is really accused had advanced the huge amount of Rs.60,00,000/- and he relied the ruling reported in 2014 (1) DCR 9 SC, JUDGMENT - 18 - C.C.18528/2022 John K. Abraham Vs. Simon C. Abraham and another wherein it has been held that:
"Negotiable Instruments Act, 1881 - Ss.118, 139 and 138 - Dishonour of cheque - Drawing presumption undere S. 118 r/w. S. 139 - Prerequisites for, when cheque is for repayment of a loan/advanced money - Proof required on the part of complainant - Held, in order to draw presumption under S. 118 r/w. S. 139, burden lies on complainant to show : (I) that he had the requisite funds for advancing the sum of money/loan in question to accused, (ii) that the issuance of cheque by accused in support of repayment of money advanced was true, and (iii) that the accused was bound to make payment as had been agreed while issuing cheque in favour of complainant - In present case, complainant not aware of the date when substantial amount of Rs.1,50,000 was advanced by him to appellant - accused - Respondent complainant failed to produce relevant documents in support of the alleged source for advancing money to accused - Complainant also not aware as to when and where the transaction took place for which the cheque in question was issued to him by accused - Complainant also not sure as to who wrote the cheque and making contradictory statements in this regard - In view of said serious defects/lacunae in evidence of complainant, judgment of High Court reversing acquittal of accused by trial court, held, was perverse and could not be sustained - Acquittal restored."
"In order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act in a case where the cheque drawn was for repayment of advanced money, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the cheque issuance of the cheque in support of the said payment advanced was true; and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant. In the instant case, the complainant (i.e., the respondent herein) was not aware of the date when substantial amount of Rs.1,50,000 was advanced by JUDGMENT - 19 - C.C.18528/2022 him to the appellant, he was not sure as to who wrote the cheque, and he was not even aware when exactly and where exactly the transaction took place for which the cheque came to be issued by the appellant. The complainant once stated in his cross-examination that the cheque was in the handwriting of the accused and the very next moment he took a diametrically opposite stand that it as not in the handwriting of the accused and that it was written by the complainant himself, by further reiterating that the amount in words was written by him.
The various defects in the evidence of the complainant, as noted by the trial court, were simply brushed aside by the High Court without assigning any valid reason. Such a serious lacuna in the evidence of the complainant, which strikes at the root of a complaint under Section 138, having been noted by the trial Judge, which factor was failed to be examined by the High Court while reversing the judgment of the trial court, would vitiate the ultimate conclusion reached by the High Court. Consequently, the judgment of the High Court would amount to a perverse one. Hence, the same cannot be sustained and is set aside."
In the present case also the complainant has not given the specific date of advancement of loan amount that too huge amount of Rs.60,00,000/-. Hence, the above quoted judgment of the Hon'ble Supreme Court of India is applicable to the present case on hand.
21. The Hon'ble Supreme Court of India in the case of Basalingappa V/s. Mudibasappa (2019) 5 SCC 418 has summarized the principles on Sections 118(a) and 139 JUDGMENT - 20 - C.C.18528/2022 of the Negotiable Instruments Act. It will be relevant to reproduce the same.
"25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessity for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
22. In the present case the defence of the accused is that, he has middlemen between complainant and one Roopesh, complainant had advanced the Rs.30,00,000/- loan to the Roopesh at the time complainant had taken the JUDGMENT - 21 - C.C.18528/2022 six signed blank cheque. Further the defence of the accused is that, 8 to 9 months they have repaid the Rs.46,00,000/- including Rs.16,00,000/- interest to the complainant, but complainant has not returned the his six cheques given for the purpose of security, hence accused had stopped the payment of the disputed cheques. During the course of cross-examination, PW1 not denied that, Rs.8,00,000/-, Rs.2,00,000/-, Rs.5,00,000/-, Rs.3,00,000/-, Rs.5,00,000/-, Rs.9,00,000/-, Rs.7,00,000/- and Rs.1,00,000/- has been issued by him respectively on 22.07.2019, 23.08.2019, 19.09.2019, 24.12.2019, 07.06.2020, 07.10.2020, 31.12.2020, 20.02.2021. These facts have been admitted by the complainant in his complaint as well as chief-examination. If really accused was not paid the extra amount as stated by him in his examination-in-chief, the complainant ought to have state that, why the accused had paid Rs.6,00,000/- to the account of his wife and he has to disclose the receipt of Rs.2,00,000/- on 21.06.2021. This fact also creates the doubt in the mind of the court is cheque amount is legally enforceable debt or liability. The JUDGMENT - 22 - C.C.18528/2022 PW1 in his cross-examination deposed that, he is getting Rs.45 to Rs.50 Lakhs income per annum and he is income tax payee and he was filed the income tax return in the year 2017-18 and 2018-19 and he has no hurdle to file the documents of income tax return. But the complainant has not furnished any documents of income tax return. If the complainant has narrated the huge loan of Rs.60,00,000/- advanced to the accused in his ITR, he would have definitely furnished the said documents to this court.
23. In order to rebut the presumption, there has to be preponderance of probabilities and probable defence which is required to be raised by accused. It is not mandatory on the part of accused that, he shall be come into witness box and lead his evidence to support his case. But the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. When once the rebuttal has been established and proved to the contrary by the accused, then burden shifts on the complainant to satisfy the court that, cheque has been issued towards legally enforceable debt or liability. But in the present case on hand the complainant has failed to JUDGMENT - 23 - C.C.18528/2022 prove the initial burden lies on him i.e. accused is due of Rs.20,00,000/-, therefore he had issued the disputed cheques for repayment of loan amount. The accused has raised the probable defence i.e. he had paid Rs.46,00,000/- to the complainant through Bank transfer. This fact has been not denied by the complainant. Hence, again burden shifted on the complainant to prove his case independently i.e. he has not received the excess money from the accused and he has not violated the Section 56 of the Negotiable Instruments Act, 1881. In criminal law guilt of the accused must be proved beyond all reasonable doubt and if there is a slightest doubt about the commission of an offence, then the benefit has to accrued in favour of the accused.
24. At this stage I relied the ruling of Hon'ble Apex Court in the case of M/s.Kumar Exports Vs. M/s.Sharma Carpets reported in AIR 2009 SC 1518 wherein it has been held that, "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-
JUDGMENT - 24 - C.C.18528/2022 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 as is expected of the complainant in a criminal trial."
25. On the basis of available materials on record, I am of the opinion that the complainant has failed to prove that, he has entitle for entire cheque amount. The complainant has not complied the mandatory provision of Section 56 of the Negotiable Instrument Act, 1881. Hence, the complainant is not entitled for benefit available under Section 118 and 139 of Negotiable Instrument Act, 1881. Accordingly, I answer Point No.1 in the NEGATIVE.
26. POINT NO.2:- In view of the above discussion accused is not found guilty. Accordingly, 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 the Negotiable Instruments Act, 1881.
JUDGMENT - 25 - C.C.18528/2022 Bail bond of the accused will be stand cancelled after completion of Six months from today.
(Directly dictated to the Stenographer, on computer, computerized by her, corrected and then pronounced in open court by me on this the 10th day of June, 2024) (VENKANNA BASAPPA HOSAMANI) XIII ACMM, BENGALURU.
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Sri. V.Sridara Reddy Documents marked on behalf of the complainant:
Ex.P1, 3, 5 & 7 : Original Cheques Ex.P1(a), 3(a), 5(a) & 7(a) : Signature of the accused Ex.P2, 4, 6 & 8 : Bank Endorsements Ex.P9 : Office copy of Legal Notice Ex.P10 : Postal receipt Ex.P11 : Unserved postal cover
Witnesses examined on behalf of the accused:
DW.1 : T.Raghava Reddy Documents marked on behalf of the accused:
Ex.D1 : Statement of account of accused Ex.D2 : Passbook of accused Digitally signed by VENKANNA VENKANNA HOSAMANI B B Date:
HOSAMANI 2024.06.11 16:09:47 +0530 XIII ACMM, Bengaluru.