Bangalore District Court
Sri. C.N.Vishwanath vs Sri. Gangadhar on 24 January, 2019
1 C.C.No.201/2014 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This 24th day of January, 2019
Present:- Smt. Saraswathi.K.N, B.A.L.,LL.M.,
XVI Addl.CMM, Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C.No.201/2014
Complainant : Sri. C.N.Vishwanath,
S/o. Late C.Nanjundaiah,
Residing at No.24,
'Sumuka' Anubhavanagar,
1st Main, 1st Cross,
Nagarabhavi Main Road,
Bengaluru - 560 072.
(Rep.by Sri.K.Venkatarama Reddy
and Associates, Adv.,)
- Vs -
Accused : Sri. Gangadhar,
S/o. Narayanappa,
R/at Nagarabhavi Village,
I.S.E.C.Road,
Bengaluru - 560 072.
(By Sri.S.R.Nagaraja. and others,
Adv.,)
Case instituted : 12.7.2013
Offence complained : Sec.138 of the N.I. Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 24.1.2019
2 C.C.No.201/2014 J
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, the Accused is known to him since several years and considering the said acquaintance, in the last week of November 2012, the Accused had approached and requested him for financial assistance for his business purpose and family requirements to the tune of Rs.6,50,000/=. Considering the friendship of the Accused, he paid a sum of Rs.6,50,000/= to him in the last week of November 2012, which the latter (Accused) agreed to repay within 4 months without fail.
3. The Complainant has submitted that, when he demanded the Accused to repay the said loan amount, the Accused issued the two posted cheques bearing No.033568 dated: 25.2.2013 for Rs.3 Lakhs and another cheque bearing No.033571 dated:- 5.3.2013 for Rs.3,50,000/=, both drawn on the Bank of India, Jananajyothi Nagar Branch, Bengaluru, assuring that, the said cheques would be duly honoured on their presentation on their respective due dates.
3 C.C.No.201/2014 J4. The Complainant has submitted that, thereafter as per the instructions of the Accused, when he presented the aforesaid cheques for encashment through his banker, the same came to be returned dishonoured as "Funds Insufficient" vide Bank Endorsements dated:-
7.5.2013 and 15.5.2013 respectively.
5. The Complainant has submitted that, he got issued the legal notice to the Accused on 5.6.2013 through RPAD calling upon him to pay the cheques amount to him within 15 days from the date of the receipt of the said legal notice and despite the service of the same, the Accused has neither replied nor has he paid the cheques amount to him. Hence the present complaint.
6. The Complainant submits that, the dishonour of the cheques by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that, he be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
7. The Complainant has led his pre-summoning evidence by having filed his affidavit-in-lieu of his sworn-
4 C.C.No.201/2014 Jstatement, in which, he has reiterated the complaint averments.
8. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
9. The Accused has appeared before the court and he has been enlarged on bail and the substance of the accusation has been read over to him, to which, he has pleaded not guilty and has stated that he has his defence to make.
10. In the Post-summoning evidence the Complainant has examined as P.W.1 and has filed his affidavit-in-lieu of his chief examination, in which, he has reiterated the complaint averments.
11. In support of his evidence, P.W.1 has produced and relied upon the documentary evidence as per Ex.P.1 to P.11, which is, as follows:-
Ex.P1 and P2 are the Original Cheques dated:-
5.3.2013 and 25.2.2013 respectively, in which, the signatures identified by P.W.1 as those of the Accused as per Ex.P1(a) and P2(a) respectively, the two Bank Memos as per Ex.P3 and P4 respectively, the office copy of the 5 C.C.No.201/2014 J Legal Notice as per Ex.P5, the Postal Receipt as per Ex.P6, the returned Legal Notice as per Ex.P7, the Postal Envelope as per Ex.P8, the Postal Receipt as per Ex.P9, the Postal Acknowledgement as per Ex.P10 and the Bank Pass Book as per Ex.P11.
12. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused, as he intended to set out his defence, the case came to be posted for the cross- examination of the Complainant.
13. P.W.1 has been cross-examined by the learned counsel for the Accused.
14. The statement of the Accused as required under Sec. 313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence found against him and has chosen not to lead his rebuttal evidence.
15. The Accused is examined as D.W.1 and he has filed his evidence affidavit, which is accepted by this court, as per the direction of our Hon'ble High Court in Afzal Pasha V/s., Mohamed Ameer Jan, reported in LAWS (KAR) 2016 (8) 131, in which, the acceptance of the 6 C.C.No.201/2014 J affidavit of the Accused is permitted by our Hon'ble High Court in accordance with the direction of the Hon'ble Apex Court in the case of the Indian Bank Association Vs., Union of India, reported in (2014) 4 SCC 590.
16. The gist of the defence of the Accused in his affidavit is as follows:-
i) That, he does not know the Complainant at any point of time and after the service of the summons from this court, he came to know through his mother Narasamma that, the Complainant herein is the father of one Suma, who is well known to him and his mother and that, she is Sari Seller on the basis of installments;
ii) That, his mother had a credit business transaction with the said Suma to the tune of thousands of rupees and due to her Sari business, her mother had taken the disputed cheques of the present case from him and handed over them to the said Suma for surety purpose, till the realization of the credit amount from the said Suma;7 C.C.No.201/2014 J
iii) That, his mother had assured him that, once the amount would be paid to the Complainant's daughter Suma, then she would get back the disputed cheques and hand them over to him;
iv) That, while doing her sari business with Suma, his mother had informed him that the quality of the sari's were low, for which, the said Suma had quoted high rates and hence his mother had questioned the same and in the said matter, there was a quarrel between his mother and the daughter of the Complainant Smt.Suma;
v) That, during the said quarrel, the daughter of
the Complainant Suma had warned his
mother that, she knew how to recover the saris amount by using the disputed cheques and she also knew how to trouble him etc.,;
vi) That, he had never requested the Complainant to lend the huge amount as alleged by him and that, he does not even knew the Complainant till the receipt of the summons from this court;8 C.C.No.201/2014 J
vii) That, he was not doing any sari business as alleged by the Complainant and that, his father is a sole member of their family, who is looking after their family affairs and other requirements;
viii) That, there was no necessity for him to borrow any loan for the family requirements, since his father was looking after the affairs of the family and other family commitments;
ix) That, during his cross-examination, the Complainant has stated before this court that, in order to pay the advocate fee to get released his brother-in-law on bail, who was involved in the criminal case, he had approached him to lend the loan;
x) That, on 10.8.2012, which is much prior to
the alleged lending of the loan by the
Complainant to him, his brother-in-law/
T.Hanumantha Raju had died and as such, the question of he allegedly approaching the Complainant seeking financial assistance for this purpose does not arise;
xi) That, he is unemployed and financially dependent on his parents and as such, he has 9 C.C.No.201/2014 J no capacity to clear the alleged loan amount and as such, the question of his borrowing such huge amount as loan had never arisen;
xii) That, the disputed cheques have been misused by the daughter of the Complainant Suma by handing them over to her father, the Complainant herein;
xiii) That, the Complainant has misused the cheques in dispute, which were given by him to his daughter Suma for security purpose, in respect of the sari business between his mother and the said Suma;
xiv) That, there is no service of the legal notice on him, since the Complainant has never issued the legal notice to his correct address;
xv) That, the Complainant has filed this false case against him so as make wrongful gain.
Hence, he has prayed for his acquittal.
17. In support of his defence version, D.W.1 has relied upon the following documentary evidence as per Ex.D.1 to D.9, are as follows:-
10 C.C.No.201/2014 Ji) The Original Death certificate of T.Hanumantha Raju as per Ex.D.1;
ii) The Admission card of the Accused as per Ex.D.2;
iii) The Hall ticket of the Accused as per Ex.D.3;
iv) The Notarised copies of the Aadhar Card and the Election I.D.Card of the Accused as per Ex.D.4 and D.5 respectively;
v) The Gas Bill as per Ex.D.6;
vi) The Electric Bill as per Ex.D.7;
vii) The notice issued by Income Tax Department to
the address of the Accused as per Ex.D.8;
viii) The letter issued by Capital First Company as per Ex.D.9.
18. I have heard the arguments of the Complainant as well as the Accused and I have perused the materials on record.
19. In support of his arguments, the learned counsel for the Complainant has relied upon the following decision:-
i) In D.Vinod Shivappa Vs., Nanda Belliappa., reported in AIR 2006 SC 2179;
20. I have gone through the afore-cited decision.
11 C.C.No.201/2014 J21. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the 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 15 days of the receipt of the notice under the proviso
(b) to Sec.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.
22. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
"It shall be presumed, unless the contrary is proved, that:-12 C.C.No.201/2014 J
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".
23. 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, was accepted, indorsed, negotiated or transferred for consideration."
24. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
25. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
26. It is a well settled position of law that the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to 13 C.C.No.201/2014 J hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
27. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
14 C.C.No.201/2014 J28. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
29. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
30. It is pertinent to note that, there is no dispute with regard to the acquaintance with each other and also with regard to the fact that, the cheques in dispute belongs to the Accused with his signatures on them and that the same were issued by him in favour of the Complainant. However, there is a serious dispute on the part of the Accused with regard to the existence of the alleged loan transaction between the Complainant and him and that, he has issued the subject cheques in favour of the Complainant for the discharge of his alleged liability towards him.
31. In this regard, it is pertinent to note that, the Accused has seriously defended him in this proceeding, by disputing the claim of the Complainant on each and 15 C.C.No.201/2014 J every aspect minutely. However, the first and the foremost defence raised by the Accused, which touches the question of the very maintainability of the complaint is the technical defence of the alleged non-service of the legal notice on him by the Complainant.
32. As per the complaint averments, the legal notice dated:- 5.6.2013 is alleged to have been got issued by the Complainant to the Accused through RPAD and Speed Post and that the RPAD was returned, while the speed post was received by the Accused. However, when the Complainant has led his chief-examination evidence, he has produced the office copy of the legal notice as per Ex.P.5, the Postal Receipt in respect of the legal notice said to have been sent through Speed Post as per Ex.P6, the returned legal notice as per Ex.P.7, the Postal Envelope of RPAD as per Ex.P.8, the Postal Receipt as per Ex.P.9 and the Postal Acknowledgement Card as per Ex.P.10.
33. However, it is an undisputed fact that, the Postal Envelope at Ex.P.8 bears the postal shara "Insufficient Address, Returned to sender" on 7.6.2013. Therefore, it is not in dispute between the parties that, the legal notice said to have been caused by the Complainant through his counsel to the Accused 16 C.C.No.201/2014 J through RPAD is returned because of "Insufficient Address" of the Accused.
34. Further, in so far as the legal notice said to have been sent by the Complainant through his counsel to the Accused through Speed Post is concerned, though the Complainant has produced the Postal Receipt as per Ex.P.6, there is no proof regarding the alleged service of the same on the Accused.
35. In this regard, during the cross-examination of the Complainant, it is elicited from him that, he does not know, to say, the perfect address of the residence of the Accused. Interestingly, the Complainant has also deposed before the court that, there are no boards for the roads put up near the house of the Accused and that, he does not know about the door number and the cross of the house of the Accused.
36. It is further pertinent to note that, when the Complainant has been cross-examined with regard to the alleged service of the legal notice on the Accused, he has voluntarily come up with an answer that, the notice sent by the RPAD is returned, while the notice sent by speed post has been served on the Accused. However, he has clearly admitted the suggestion as true that, the legal 17 C.C.No.201/2014 J notice sent by RPAD is returned as "Insufficient Address"
as per Ex.P.8 and the explanation offered by him regarding the notice sent through speed post is that, there would no acknowledgement in respect of a speed post.
37. It is further interesting to note that, while cross- examining the Accused, who has examined as D.W.1, the Complainant has come up with a claim that, if the name along with the area as Nagarabhavi is mentioned on the postal envelope, the same would be duly served, since the concerned postman will be familiar with people of the said locality and that, he is well acquainted with the local postman of the area.
38. Thereafter, it is alleged by the Complainant that, as the Accused is well acquainted with the concerned postman, by colluding with him, he has got written a false shara on the Postal envelope and received the speed post.
39. However, it is pertinent to note that, except such suggestion put to the Accused, there is no proof led by the Complainant in order to prove that, his claim regarding the alleged service of the legal notice through Speed post on the Accused is an acceptable one.
18 C.C.No.201/2014 JTherefore the defence of the Accused that, there is no service of the legal notice on him is corroborated with the postal shara as "Insufficient Address" shown on the Postal Envelope at Ex.C.8.
40. It is further pertinent to note that, after the Accused has been cross-examined by the learned counsel for the Complainant, subsequently the Accused has produced the notarized copies of his Aadhar card and Election I.D.Card as per Ex.D.4 and D.5 respectively, his Gas bill as per Ex.D6, the Electricity bill as per Ex.D.7, the Notice that was served on him on his residential address by the Income Tax Department as per Ex.D.8 and the letter that was sent to his address by the Capital First Company as per Ex.D.9. By relying upon the said documentary evidence, the defence of the Accused is that, in the normal course of events, any post sent to his complete residential address as shown in the aforesaid documents at Ex.D.4 to D.9 would be duly served upon him. This defence version of the Accused is probabalised, since the Complainant has not chosen to dispute the genuineness of the said documentary evidence or to dispute the claim of the Accused in this regard. Moreover the non cross-examination of D.W.1 in respect of the additional documentary evidence as per Ex.D.4 to D.9 would also lead to an adverse inference 19 C.C.No.201/2014 J against the Complainant. Therefore the defence of the Accused that, there is no service of the legal notice upon him and as such the mandatory requirements of Sec. 138(b) of the N.I. Act has not at all been complied with by the Complainant seems to be a probable and acceptable defence version.
41. Now coming to the case of the Complainant on merits, it is interesting to note that, the loan amount alleged to have been advanced by the Complainant, who is a senior citizen to the Accused, who is admittedly a middle aged person, is about Rs.6.5 Lakhs.
42. However, as could be seen from the pleading and proof of the Complainant, there is no specific date of the alleged approach by the Accused or the alleged date of lending by the Complainant to the Accused, either in the legal notice or in the complaint or in the affidavit filed by the Complainant.
43. In this regard, even if the complaint averment is taken into a consideration by this court, the date of the alleged approach by the Accused to the Complainant is in the last week of November 2012 and the date of the alleged lending of the loan by the complainant to the Accused is also during the last week of November 2012.
20 C.C.No.201/2014 J44. However, when the Accused has categorically denied the existence of the alleged loan transaction with the Complainant, as well as the financial capacity of the Complainant in having allegedly advanced such huge loan amount to him, the onus of proving his financial capacity at the relevant point of time by the Complainant play a significant role.
45. In this regard, it is interesting to note that, in the initial course of his cross-examination, the Complainant has claimed that, he has lent Rs.6.5 Lakhs to the Accused by way of cash and the said amount of Rs.6.5 Lakhs was his savings from his salary.
46. However, during the course of his subsequent cross-examination, the Complainant has come up with a claim that, he had his retirement benefits amount in his account, which he claims to have withdrawn only for the purpose of lending the same to the Accused. But as could be seen from the claim of the Complainant, admittedly, he has retired from his service in the year 2013. In such circumstance, when at one breadth, the Complainant claims that, he retired in April 2013, but in the other breadth, he says that, he arranged Rs.6.5 Lakhs from out of his retirement benefits, so as to lend a loan of Rs.6.5 Lakhs to the Accused, so as to enable the 21 C.C.No.201/2014 J latter to meet his family requirements, the said contention on his part cannot be accepted by this court, since he cannot be expected to have received his retirement benefits by November 2012, when as per his own version he retired in the month of April 2013.
47. However, it is not proper to attach too much significance on this aspect, considering the age of the Complainant and as such, minor contradictions in his evidence need not be over emphasized by this court. Hence, it is necessary for this court to appreciate the evidence of the Complainant with regard to his proof regarding the source of funds to the tune of Rs.6.5 Lakhs at the relevant point of time.
48. It is interesting to note that, the Complainant claims to have allegedly withdrawn Rs.6.5 Lakhs from his account, so as to lend the same to the Accused. Though, initially he had not produced any document to prove the same, subsequently, he has produced his Bank Pass book pertaining to his account in the Janatha Seva Co-operative Bank as per Ex.P.11.
49. In this Bank Passbook at Ex.P11, he has relied upon the relevant entries dated:- 26.2.2012, 31.3.2012, 28.4.2012, 22.9.2012, 17.10.2012 and 26.11.2012 and 22 C.C.No.201/2014 J by relying upon the aforesaid relevant entries, he has claimed that, by having withdrawn the respective amounts on the aforesaid dates, he had kept the said amount in his house. However, when as per the own case of the Complainant, the Accused had allegedly approached him for loan in the last week of November 2012, which he claims to have lent to him during the same period, then the onus of proving the fact that, the amount that, he had admittedly withdrawn from 26.2.2012 to 26.11.2012 as per Ex.P.11 continued to be in his custody by way of hard cash till the end of 2012.
50. However, it is not the case of the Complainant that, the Accused had approached him right from the beginning of 2012 till November 2012, in which circumstance this court could have believed his claim on the basis of his Bank Pass book at Ex.P.11. Therefore, the conduct of the Complainant in claiming that the amount that he had withdrawn from 26.2.2012 to 26.11.2012 was in his custody as hard cash cannot be believed by this court, since if there was no necessity for the Complainant to withdraw such amounts on the respective dates, then he would have continued to possess the said amount in his bank account, which could have fetched a reasonable interest to him, instead 23 C.C.No.201/2014 J of keeping it as a hard cash, without there being any purpose for him to withdraw the said amount.
51. Interestingly, it is not the case of the Complainant that, he had withdrawn the said amount from his bank account for his other purposes. Therefore, unless, there was some reason for the Complainant to withdraw the amounts from his bank account, there would not have been any occasion for him to withdraw the amounts to the tune of Rs.55,000/= Rs.20,000/= Rs.50,000/= or Rs.2.5 Lakhs or Rs.3 Lakhs as claimed by him by relying upon his bank Pass book at Ex.P.11.
52. Therefore, though the documentary evidence at Ex.P.11, supports the claim of the Complainant that, from 26.2.2012 to 26.11.2012, the total amount withdrawn by him from his account exceeded Rs.6.5 Lakhs, it does not lead to an adverse inference that, by relying upon the said bank transactions in the form of self withdrawals, the Complainant has been able to substantiate his claim that, they were the amounts from out of which, he had allegedly lent Rs.6.5 Lakhs to the Accused.
53. Moreover, as per the own case of the Complainant, the alleged loan of Rs.6.5 Lakhs did not 24 C.C.No.201/2014 J carry any interest. Admittedly, no security documents much less the cheque, was collected by the Complainant from the Accused for security purpose, while advancing such huge loan of Rs.6.5 Lakhs. Moreover, it is not the case of the Complainant that, the Accused is either his close relative or close family friend. In such circumstance, it cannot be believed that, even if the Complainant had possessed the funds to the tune of Rs.6.5 Lakhs, he would have parted with the same in favour of the Accused, who was admittedly a student, as proved by the latter, through the documentary evidence as per Ex.D.2 and D.3 at the relevant point of time, when admittedly the Accused was a student then.
54. Therefore, even if it is believed for a moment that, the Accused had allegedly approached the Complainant seeking for financial assistance during November 2012, when admittedly he was a student, which is proved by him through Ex.D.2 and D.3, then as a man of ordinary prudence, the Complainant could not be believed to have parted with a huge loan of Rs.6.5 Lakhs in favour of the Accused, without charging any interest and without collecting any security documents and without ensuring the source of it's repayment from the side of the Accused. Therefore the conduct of the Complainant, in not having charged any interest on the 25 C.C.No.201/2014 J said loan and in not having collected any security documents from the Accused, while his alleged lending of the huge loan of Rs.6.5 Lakhs to him would create a serious doubt in the mind of this court about this case.
55. Another serious doubtful circumstance, which has been clearly pointed out by the learned Defence Counsel in the cross-examination of the Complainant is with regard to the purpose of the alleged loan.
56. In this regard, it could be seen that, as per the complaint averment, the Accused is alleged to have approached the Complainant for financial assistance for his business purpose and family requirements. However, in his cross-examination, the Complainant has claimed that he has heard that, the Accused does finance business, but he has clearly pleaded ignorance about the name, in which, the Accused allegedly does such finance business. In such circumstance, the Accused having allegedly approached the Complainant for his business purpose has not at all been proved by the Complainant.
57. Moreover, it is pertinent to note that, for the first time in his cross-examination, the Complainant has come up with a claim that, he has not enquired with the Accused, as to, why he was in requirement of such huge 26 C.C.No.201/2014 J loan amount of Rs.6.5 Lakhs, though he has claimed that, the Accused had sought for such a financial assistance from him on the ground that, his brother-in- law was arrested in connection with a murder, which had taken place near Ambedkar Medical College, Nagarabhavi Ring road.
58. In this regard, according to the Complainant, the Accused had approached him seeking for such financial assistance from him, so as to get released his brother-in-law from the Judicial Custody, who was arrested in connection with the said crime.
59. However, during his chief-examination, the Accused has produced the Death Certificate of his brother-in-law as per Ex.D.1, as per which, the date of the death of his brother-in-law is "10.8.2012".
60. Hence by relying upon the said documentary evidence, it is the defence of the Accused that, when his brother-in-law was already expired in August 2012, then his alleged approach to the Complainant seeking for financial assistance from him, so as to get released his brother-in-law from custody could never arise.
27 C.C.No.201/2014 J61. No doubt, it is alleged from the Accused in his cross-examination that, there was a criminal case registered against his brother-in-law for murder and it was decided in the year 2012 and that his brother-in-law was in Judicial Custody in respect of the said case and that, after the said case was decided in the year 2012, his brother-in-law expired. Though the Accused has admitted the said suggestion, the documentary evidence at Ex.D.1 goes to show that, the date of the death of the brother-in-law of the Accused is 10.8.2012. In such circumstance, even if it is taken into consideration that the brother-in-law of the Accused was arrested and was detained in custody in connection with a criminal case, then the same should have been much prior to 10.8.2012. In such circumstances, the claim of the Complainant that, the Accused had approached him seeking for financial assistance from him, so as to get released his brother-in-law from the JC during the last week of November 2012 would clearly falsify the case of the Complainant. Therefore even on this ground, the case of the Complainant is liable to fail.
62. It is further interesting to note that, the Complainant has also come up with another improved version in his cross-examination for the first time by claiming that, the Accused had sought for financial 28 C.C.No.201/2014 J assistance from him through his daughter Suma and that, at that time, the Accused and his parents had approached him seeking financial assistance. Interestingly, this fact has not at all been pleaded by the Complainant in the complaint. In such circumstance, this would also create a serious doubt in the mind of this court about the case of the Complainant.
63. Further, a contradiction in the case of the Complainant which is pointed out by the learned Defence Counsel is with regard to the period of the alleged repayment undertaken by the Accused.
64. According to the complaint averments, the loan amount of Rs.6.5 Lakhs was allegedly agreed to be repaid by the Accused to the Complainant within 4 months without fail. On the contrary, in his cross- examination, the Complainant has claimed that, the Accused had agreed to repay the alleged loan to him within a month or two. Though this factor may not be a serious contradiction in the case of the Complainant, it would also strengthen the other suspicious circumstances in his case.
65. However, it is the specific defence of the Accused that, his family is still a joint family and that 29 C.C.No.201/2014 J even presently his father is managing the affairs of his family. Interestingly, the Complainant has also admitted to the suggestion that, the Accused is in a joint family and even his father is known to him. He has pleaded ignorance to the suggestion that, even presently the father of the Accused is managing the family affairs of his family. In such circumstance, when the Complainant, admittedly knew the father of the Accused, then before his alleged advancement of the huge loan of Rs.6.5 Lakhs to the Accused, the Complainant had no impediment to enquire from the father of the Accused about the purpose of such huge loan that was allegedly sought from him by the Accused. Interestingly, there is no explanation offered in this regard by the Complainant. Therefore this would also create a serious doubt in the case of the Complainant.
66. Now coming to the defence of the Accused with regard to his two cheques, being in the custody of the Complainant is that, though the Complainant is not directly known to him, his daughter Smt.V.Suma is known to him through his mother.
67. Therefore, according to the Accused, the said Suma does sari business on credit basis and his mother used to have transactions with the said Suma on credit 30 C.C.No.201/2014 J basis and at one point of time, for the security of the credit amount, at the instance of his mother, he gave his cheques in dispute as signed blank cheques to his mother, so as to give them to Suma. No doubt, it is elicited from the Accused that, he has no documentary proof in support of his claim that, his mother had transacted with the daughter of the Complainant Suma in connection with sari business as claimed by him.
68. However, before expecting the Accused to furnish proof regarding his defence version in this regard, when the cross-examination of the Complainant in this regard is considered by this court, it goes to show that, when he has been suggested that, his daughter Suma does sari business on credit basis, by collecting the amount by way of installments and that his daughter sells saris to the mother and the sisters of the Accused, the Complainant has neither denied nor admitted the same. On the contrary, he has given the evasive answer that, she might do it and that, he is not aware of the same. Moreover, the Complainant has clearly admitted that, the entire family of the Accused is known to his daughter.
69. These answers elicited from the Complainant are sufficient to conclude the existence of the transaction 31 C.C.No.201/2014 J of saris between his daughter and the mother and the sister of the Accused and in such circumstance, the defence of the Accused that, he had given the cheques in dispute as signed blank cheques to his mother seems to be probable. On the contrary, there is no cogent proof led by the Complainant in order to show that, the cheques in dispute were allegedly issued by the Accused to him for the purpose of his alleged repayment of the debt of Rs.6.5 Lakhs.
70. Therefore, even for a moment, if it is considered by this court that, the defence of the Accused is unsupported by either oral or documentary proof, other than the proof led by the Accused, as the complainant has miserably failed to establish his alleged loan transaction theory with the Accused, this court cannot doubt the defence version of the Accused.
71. Moreover, when the Accused has come up with the additional documentary evidence as per Ex.D4 to D9, for the reasons best known to him, the Complainant has failed to cross-examine him and as such, an adverse inference in liable to be drawn against him in this regard.
72. In support of my aforesaid reasoning, I rely upon the following decisions:-
32 C.C.No.201/2014 Ji) Shivamurthy Vs., Amrutraj, reported in (2008) ILR Kar 4629;
ii) John K John Vs., Tom Verghese and another, reported in AIR 2007 SCW 6736.
73. Therefore, the appreciation of the evidence on record clearly goes to show that, the case of the Complainant is shrouded with serious suspicious and doubtful circumstances, contradictions, omissions and improvements and as a result his case is liable to be viewed with suspicion. He has also miserably failed to prove his financial capacity to the tune of Rs.6,50,000/= so as to have allegedly lent the said loan to the Accused and thereby failed to prove his case beyond reasonable doubt. On the contrary, the defence of the Accused has been consistent throughout the proceedings and as such, I have no hesitation to hold that, he has successfully rebutted the presumptions available in favour of the Complainant u/Sec.118 and 139 of the N.I.Act. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-
conferred u/Sec. 255(1) of the Cr.P.C. the Accused is hereby acquitted of the offence punishable u/Sec.138 of Negotiable Instruments Act.33 C.C.No.201/2014 J
His bail bond and surety bond stands discharged.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her, verified, corrected and then pronounced by me in the open court on this the 24th day of January, 2019).
(SARASWATHI.K.N), XVI ACMM., Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.C.N.Vishwanath; 2. List of documents exhibited on behalf of the Complainant:- Ex.P.1 & P.2 : Original Cheques; Ex.P.1(a) & : Signatures of the Accused; P.2(a) Ex.P.3 & P.4 : Bank Memos; Ex.P.5 : Office Copy of the Legal Notice; Ex.P.6 : Postal Receipt; Ex.P.7 : Returned Legal Notice; Ex.P.8 : Postal Envelope; Ex.P.9 : Postal Receipt; Ex.P.10 : Postal Acknowledgement; Ex.P.11 : Bank Pass Book.
3. List of witness/s examined on behalf of the Accused:-
D.W.1 : Gangadhar.N;
4. List of documents exhibited on behalf of the Accused:-34 C.C.No.201/2014 J
Ex.D.1 : The Original Death certificate of T.Hanumantha Raju;
Ex.D.2 : The Admission card of Accused; Ex.D.3 : The Hall ticket of the Accused; Ex.D.4 & D.5 : The Notarised copies of the Aadhar Card and the Election I.D. Card of the Accused;
Ex.D.6 : The Gas Bill;
Ex.D.7 : The Electric Bill;
Ex.D.8 : The notice issued by Income Tax
Department to the address of the
Accused;
Ex.D.9 : The letter issued by Capital First
Company
(SARASWATHI.K.N),
XVI ACMM, Bengaluru City.
35 C.C.No.201/2014 J
24.1.2019 Judgment pronounced in the open court vide separate order ORDER By exercising the power-
conferred u/Sec. 255(1) of the Cr.P.C. the Accused is hereby acquitted of the offence punishable u/Sec.138 of Negotiable Instruments Act.
His bail bond and surety bond stands discharged.
XVI ACMM, B'luru.