Bangalore District Court
Sri.D.R.Shivashankar Reddy vs Sri.V.Narayanaswamy on 13 October, 2020
IN THE COURT OF THE XVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
PRESENT: MANJUNATHA.K.P, B.A.L, LL.B.
XVIII ADDL.C.M.M., BENGALURU
DATED : THIS THE 13th DAY OF OCTOBER 2020
C.C.NO: 3505/2017
COMPLAINANT:- Sri.D.R.Shivashankar Reddy,
S/o Late Raja Reddy,
Aged about 48 years,
R/o Dinnahalli,
Thirumani Post,
Gudibanda Taluk,
Chikkaballapura.
(Rept by Sri.SS Advocate)
V/s.
ACCUSED:- Sri.V.Narayanaswamy,
S/o Venkataramappa,
Aged about 53 years,
R/o Somenahalli Village,
& Post, Gudibanda Taluk,
Chikkaballapura District.
(Rept by Sri.BMM., Advocate)
JUDGMENT
The complainant has presented the complaint under Section 200 of Cr.P.C against the accused for the alleged offence punishable under Section 138 of N.I. Act.
2) The brief facts of the complainant's case is that:- 2 C.C.NO:3505/2017
The complainant and accused are knew each other since 10 years and accused village is hardly 5 K.M. from the complainant village, accused was working at KSRTC Department for the best reasons know to the accused resigned from the said job, thereafter settled in his village.
Accused with an intent to promote milk dairy he constructed cow shed within an acre, with an intent to purchase milking cows & graz and for the purpose of progressive cultivation, due to dearth of finance accused approached the complainant requested hand loan of Rs.50,00,000/- for which complainant has agreed to give loan of Rs.40,00,000/- same has been received by the accused on 17/10/2013 in the presence of Ashwath Reddy , R/o Chikkanacherlu who is know the complainant and the accused and Madda Reddy R/o Dinnamelinahalli who is the president of Somanahalli Milk Diary in their presence the accused has received Rs.40,00,000/- from the complainant and agreed to give interest at the rate 3% per month, after receipt of the said amount, accused paid on interest of Rs.1,25,000/- upto March 2014, thereafter accused did not pay the interest nor principal, even accused has executed an agreement in favour of the complainant on stamp paper, 3 C.C.NO:3505/2017 thereafter on and from April 2014 accused did not pay interest or principal amount. The complainant is progressive agriculturist who is also having landed property and who is cultivating nearly 60 acres along with property belonging to his cousin brothers, complainant is also earn on cultivation of commercial crops and with that complainant arranged Rs.40,00,000/- and accused received the same the in the presence of witnesses Ashwath Reddy and Maddi Reddy. When the complainant was badly need of amount, the complainant pressurised accused, then accused has issued two cheques in the month of November 2016, cheque bearing No.000007 dated 9/11/2016 for Rs.50,00,000/- drawn on Bank of Baroda and another cheque bearing No. 000011 dated 25/11/2016 for Rs. 29,60,000/- in the name of complainant including interest, before presenting the cheques as the accused got sufficient amount in the account, complainant approached the accused in person and accused instructed the complainant to present the cheque, as per the instructions of the accused , the complainant presented the above said cheques for encashment, they were dishonored with an endorsement "PAYMENT STOPPED BY DRAWER" on 4 C.C.NO:3505/2017 12/12/2016. Thereafter the complainant issued legal notice on 15/12/2016 calling upon the accused to make payment of the dishonoured chequeS amount and the said notice was duly served on the accused. In spite of service of notice, the accused has not complied the same. Hence, complainant is constrained to file this private complaint for the said relief.
3) After receipt of complaint, this court has taken cognizance of the alleged offence and sworn statement of complainant was recorded and process was issued to the accused. He was appeared through his counsel and enlarged on bail and all papers were supplied to him. The substance of plea was recorded and read over and explained in Kannada language to the accused, to which he pleads not guilty and claims to be tried. Hence, posted the case for complainant evidence.
4) In order to prove the complainant case, complainant was examined as P.W.1 and he exhibited Ex.P.1 to Ex.P.19 documents and he also examined on witness by name C.Ashwath Reddy as PW2 and closed his side. Thereafter, the statement of accused under Section 5 C.C.NO:3505/2017 313 of Cr.P.C is recorded, read over and explained in Kannada language to which accused has denied the entire incriminating evidence which appears against him. Per contra, accused examined as DW1 and he exhibited Ex.D1 to 12 documents. Thereafter, the case is posted for arguments.
5) Heard the arguments on both sides and perused the entire papers.
6) Now, the following points that arises for my consideration are:-
1) Whether the complainant has made out all the ingredients of Section 138 of N.I. Act to prove the guilt of the accused person?
2) What order?
7) My answer to the above points are as follows:-
POINT NO.1 : In the Negative POINT NO.2 : As per final order, for the following:-
REASONS
8) POINT NO.1:- As the brief facts of the
complainant's case as already stated above, hence I need not repeat the same facts once again to avoid the repetition of the same facts.6 C.C.NO:3505/2017
9) To bring home guilt against the accused, the complainant/prosecution must prove the following ingredients of Section 138 of N.I. Act.
i) That there is a legally enforceable debt.
ii) That the cheque was drawn from account of Bank for discharge in whole or in part of any debt or other liability which presuppose a legally enforceable debt;
iii) Cheque so issued had been returned due to insufficiency of funds.
10) To prove the aforesaid ingredients of Section 138 of N.I. Act, the complainant filed his chief affidavit and examined as P.W.1. In his chief examination affidavit he reiterated the entire averments of the complaint. In support of his case he has exhibited Ex.P.1 to Ex.P.19 documents.
Ex.P.1 & 2 are cheques, Ex.P. & 4 are Bank endorsements, Ex.P.5 legal notice, Ex.P.6 postal receipts, Ex.P.7 courier receipt, Ex.P.8. postal acknowledgment, Ex.P.9 loan agreement, Ex.P.10 reply notice,Ex.P.11 RPAD return cover, Ex.P.12 are 16 RTC extracts, Ex.P.13 Genealogical tree, Ex.P.14 are 13 RTC Extracts, Ex.P.15 Crop Certificates, Ex.P.16 is 7 RTC extracts, Ex.P.17 Milk Dairy Register 7 C.C.NO:3505/2017 Ex.P.18 are 19 are photos and CDs, Ex.P.19 are 17 photos and two receipts .
11) On careful perusal of the entire oral and documentary evidence, the admitted facts are that there is no dispute that complainant and accused are knews each other and they also residing adjacent villages and further there is no dispute that the complainant is agriculturist and accused is retired KSRTC conductor . Further there is no dispute that Ex.P.1 & 2 cheques are belongs to the accused and they were dishonoured as per Ex.P.3 & 4 endorsements and notice has been issued as per Ex.P.5 and it was duly served on accused as per Ex.P.8 document. Further, there is no dispute that as per the RTCs extracts and crop certificates issued by the concerned departments the complainant and his family members are belongs to the agricultural and they also grazing cows and doing other additional agricultural process. The prime dispute in the present case is that existence of debts between the complainant and accused and issuance of Ex.P.1 & 2 cheques in favour of complainant for discharge of legally recoverable debts and other facts. To prove the said fact complainant examined as PW1 and he exhibited Ex.P.1 to 19 documents. To substantiate his 8 C.C.NO:3505/2017 case he also examined one witness by name C.Ashwath Reddy as PW2 in his evidence he stated before the court that dated 17.10.2013 complainant has paid Rs.40,00,000/- to the accused in his presence and to discharge the said debts accused has issued cheques etc., He also identified signature on Ex.P.9 loan agreement. Per contra, to disprove the complainant case, accused examined as DW1 and he stated before the court that when he was traveling in bus dated 10.8.2016 from his own village to Chikkaballpura at that time his bag has been lost, in the said bag, the present case cheques and other cheque books are also there , as such he made complaint to the police station and Bank of Baroda and the said cheques have been misused by the complainant and filed a false case against him and there is no debts between himself and complainant and there is no legally recoverable debts and accused has not issued cheques in favour of complainant and he has not at all borrowed loan of Rs.40,00,000/- with the complainant etc., and he prays to acquittal of the accused and he also exhibited the following documents Ex.D.1 : Copy of Sale agreement, Ex.D.2 : Copy of Simple Mortgage Deed, Ex.D.3 : Police acknowledgment Ex.D.4 : Bank transaction details 9 C.C.NO:3505/2017 Ex.D.5 : Bank statement, Ex.D.6 : Copy of payment register Ex.D.7 to 10 : RTC extracts, Ex.D11 : Police acknowledgment, Ex.D.12 : Endorsement
12) During the course of arguments, the learned counsel from the complainant Sri.SS vehemently argued that complainant has categorically, cogently proved his case by way of oral and documentary evidence and on admissions in the mouth of DW1 and the materials placed by the complainant i.e., cheques, endorsement, legal notice , acknowledgment, RTC extracts, crop certificates are corroborates with the complainant case about his capacity and source of income and complainant also growing tomato, potatoes and other commercial crops and he also had eucalyptus plants and mango plants in his village, out of them he has getting good earnings for every year and the said amount has paid to the accused for purpose of his milk dairy development and he also argued that, accused has not taken any action against the complainant for misuse of cheque. The said silent attitude of accused is corroborates with the complainant case, about borrowing loan of Rs.40 lakhs with the complainant and learned counsel also further argued that in the presence of PW2 he has paid amount , hence PW2 has deposed evidence. On the other hand, 10 C.C.NO:3505/2017 accused has not examined any independent witness and prays to convict the accused. Per contra, Sri.BMM counsel for accused resisted the said arguments and argued that absolutely the complainant filed by the complaint is not maintainable, because complainant is claiming time barred debts. As per his contention he lend amount dated 17.10.2013, but present complaint filed before court dated 19.1.2017, after lapse of three years and complainant has not proved about the payment of interest of Rs.1,25,000/- upto March 2014. So, in the absence of proof of payment of interest by the accused upto March 2014 merely complainant has taken contention that he has paid amount dated 17.10.2013 and to discharge the debts accused has issued cheques, and they have came to be dishonoured and notice has been duly served on accused etc are not sufficient to convict the accused and further merely landed properties are standing in the name of complainant are not sufficient to believe the yielding of money in the said landed properties unless he proved the other facts as specified under law and complainant has no capacity and source of income to pay huge amount of Rs.40,00,000/- to the accused and learned counsel also argued that the cheques 11 C.C.NO:3505/2017 those have lost in the bus have misused by the complainant and filed a false case etc and prays to acquittal of the accused .
13) On perusal of the entire oral and documentary evidence and arguments addressed by the counsels, admitted facts are that, complainant and accused are belongs to the adjacent villages as well as they are belongs to the Chikkaballapura District and further there is no dispute that the complainant and his family members are doing an agricultural process and further there is no dispute that accused is retired KSRTC conductor and further there is no dispute that PW2 also deposed before the court that in his presence accused has received Rs.40 lakhs from the complainant dated 17.10.2013. The prime dispute in the present case as already stated above existence of debts between the complainant and accused and issuance of cheques by the accused to discharge the legally recoverable debts and other facts. To prove the said fact as already stated above PW1 1 & 2 have reiterated entire averments of the complaint and complainant also exhibited Ex.P1 to P.19 documents. Further, admittedly Ex.P.1 to 8 documents 12 C.C.NO:3505/2017 have not at all serious in dispute, because they are general documents I.e, Ex.P.1 & 2 cheques, Ex.P.3 & 4 bank endorsements, Ex.P.5 legal notice, Ex.P.6 is postal receipts, Ex.P.7 courier receipt and Ex.P.8 is postal acknowledgment, these documents are not in serious dispute on accused side as such, it is need not be requires to discuss at length , because both parties have admitted the said documents in entire case proceedings. The disputed documents are Ex.P.9 is loan agreement and RTCs and crops certificates issued by the concerned Revenue Departments. Of course, on perusal of Ex.P.9 it is significant document of the complainant. The said document executed dated 17-10- 2013 . Under the said document accused has received Rs.40 lakhs with agreed to repay the said amount at interest of 3%. Admittedly, to prove the said document, complainant has examined one attesttor I.e, PW2 by name C.Ashwath Reddy. Of course, Ex.P.9 is proved under section 68 of Indian Evidence Act and also to prove the source of income and capacity of the complainant, he has marked Ex.P.12 RTC extracts standing in the name of D.P.Ashok Reddy and D.R. Shivashankar Reddy and others and PW1 also exhibited Ex.P.13 genealogical tree , the said document 13 C.C.NO:3505/2017 indicates to the court that one NagiReddy is an original propositor of complainant family and PW1 is family member of said Nagi Reddy and he also exhibited Ex.P.14 RTCs extracts standing in the name of D.R.Shivashankar Reddy I.e, complainant and he also exhibited Ex.P.15 crop certificates issued by the Village accountant, under the said document in Sy.No. 48 measuring 1.30 acres there is a Eucalyptus (neelagiri) crops and admittedly the said document is in the name of complainant. The complainant also exhibited another crop certificate standing in the name of D.P.Ashok Reddy. As per the said document measuring 2.10 acres the said D.PAshok Reddy growing Tomatos . The complainant also exhibited another crop certificate dated 13/7/2017. As per the said document in Sy.No.172 measuring 1.08 acres the complainant is growing chilly and further he also exhibited one supportive RTC extract and further as per the another crop certificate dated 13.7.2017, in Sy.No.171/1 measuring 2.10 acres complainant is growing cali-flower , and he also placed supprotive RTC extract and he also exhibited another crop certificate issued dated 13/7/2017 as per the said document in Sy.No. 23/4 measuring 1.32 acres, growing Carrot and he placed 14 C.C.NO:3505/2017 another crop certificate issued by the village accountant as per the said document in Sy.No.48 measuring 1.30 growing Beetroot and he placed another crop certificate as per the said document in Sy.No.11/4 measuring 2.08 acres growing tamarind trees, he also placed another crop certificate pertaining to Sy.No.75/6 measuring 1.22 acres, as per the said document, he growing tamarind trees . So, admittedly the said crops certificates and RTC extracts are standing in the name of D.P.Ashok Reddy and D.R.Shivashankar Reddy and other names I.e, in the family members of the complainant. The complainant also exhibited Ex.P.17 I.,e statement issued by the Milk producers Co-operative society, Sommanahalli about the payment of amount is concerned. The complainant also exhibited photos to prove his borwells, lands and crops are concerned.
14) Of course, on perusal of the entire RTC extracts, crops certificates, photos corroborates with the complainant case about the having of landed properties in his family members names and also growing of Tamoto, carrot, cauliflower, beetroot, and other agricultural crops. Of course, the said documents confers to the court that about 15 C.C.NO:3505/2017 the agricultural income of the complainant and his capacity is concerned I.e he getting good income from his agricultural process. But at the same time, the burden lies on the complainant to prove his case because he desires the court, as such the burden lies on him under section 101 to 104 of Indian Evidence Act, to prove about owning of Rs.40 lakhs with him prior to the payment to the accused, except marking of aforesaid RTC extracts, crop certificates, genealogical tree and photos complainant has not placed other bills to believe that about supply of Tamoto, carrot, cauliflower and other crops either to the APMC yard nor other middle mens. So, in the absence of said bills, merely some of the RTCs are standing in the name of complainant and other family members, crops certificates are issued by the village accountant, are not sufficient to believe his contention that about the owning of Rs.40 lakhs with him prior to the payment to the accused . Per contra, accused examined before the court and he denied the every inch of the complaint and he has taken some contention that when he traveling from his village to chikkaballapura dated 10.8.2016, at that time his cheque books and other papers have been lost. Accordingly, he made complaint to the 16 C.C.NO:3505/2017 police and police have not taken any actions etc., and he also exhibited Ex.D.1 to 12 documents they are sale deed and other documents. The said documents indicates to the court that about attempts of the accused to take action on lost of his cheque books and other papers. But the materials placed by the accused I.e, documentary materials as per Ex.D1 to 12 are not support his oral evidence. Because accused has not proved before the court that about his travel from his village to Chikkaballapura dated 10.8.2016 by producing either bus ticket nor his departmental pass. So, in the absence of proof of said materials the defence taken by the accused are not sufficient to believe the entire case of the accused, unless he proved the fact of his traveling as on the date of lost of his cheque book as stated supra. So, in the absence of said materials the defence taken by the accused and the arguments of the accused counsel have not support his case. Further, admittedly, complainant in his complaint and chief examination affidavit and PW2 have stated before court that he has paid amount of Rs.40 lakhs dated 17.10.2013 and accused has paid interest of Rs.1,25,000/- upto to March 2014 and he stated in para 2 of the complaint 17 C.C.NO:3505/2017 that accused has executed an agreement in favour of the complainant stamp paper and on 9.11.2016 accused has issued cheques for Rs.50 lakhs dated 25/11/2016 and issued another cheque for Rs.29,60,000/- including interest etc., the very fact reiterated in complaint at para No.4 before the court. As argued by the complainant counsel, except plea in complaint and chief examination affidavit of PW1 and 2 about the payment of interest by the accused upto March 2014 Rs.1,25,000/- complainant has not placed any materials before the court to believe that about the payment of interest by the accused upto date of March 2014. So, in the absence of proof of said fact mere plea taken by the complainant in his pleadings and oral evidence of PW1 & 2, the proof shall not dispensed with , because during the course of arguments , accused counsel argued that the alleged debts are time barred debts etc., So, admittedly the alleged payment, paid by the complainant dated 17.10.2013 and complainant has generally filed the complaint before the court dated 19.1.2017 nearly after the lapse of 4 years the complainant has filed the present complaint on Ex.P.1 & 2 cheques. . So, debts involved under Ex.P.1 & 2 between the complainant and accused are 18 C.C.NO:3505/2017 time barred debts. So, there is a catena of decisions by the Hon'ble Appex Court and Hon'ble High Court of Karnataka that 'if any complaints filed under section 138 of NI Act for time barred debts are not maintainable etc.,.' So, here in this case also the debts involved between the complainant and accused are time barred debts as stated above. Of course, the RTC extracts and crop certificates issued by Revenue departments and photos are confers about the capacity and source of income of the complainant i.e., he getting good income from his agricultural lands along with other family members. But merely some crops are growing in PW1 family lands as stated supra I.,e tomato, cauliflower, carrot etc are not sufficient to believe that about the owning of Rs.40 lakhs with him prior to the payment to the accused unless he placed other corroborative materials I.,e either APMC bills, nor other bills issued by the middle mens for selling of his agricultural crops, accordingly, the RTC extracts, crops certificates are not sufficient to believe the source of income and capacity to pay huge amount of Rs.40 lakhs to the accused . Further, admittedly as per Ex.P.1 & 2 cheques complainant is claiming an huge amount of Rs.79,60,000/-. So, heavy burden lines on him to prove the 19 C.C.NO:3505/2017 ingredients of section 138 of NI Act and also there is no suggestion to DW1 in cross-examination by the complainant counsel for payment of interest up to March 2014. Of course, accused has not rebut the complainant case in a proper manner as argued by the complainant counsel though it is not a ground to convict the accused in a mechanical manner, because first of all complainant has failed to prove the existence of debts between the complainant and accused for Rs.79,60,000/- and also failed to prove the issuance of Ex.P.1 & 2 cheques by the accused in favour of the complainant for the discharge of legally recoverable debts. Of course, accused has not proved before the court that about the lost his cheques in the bus as alleged in his evidence, though as he is entitled for a benefit of doubt, because first of all complainant has failed to prove the ingredients of section 138 of NI Act as stated supra. Further, as stated supra the alleged debts involved under Ex.P.1 & 2 cheques are time barred debts. Because, payment of interest by the accused upto to March 2014 has not been proved to count the limitation from the said pyament of interest. So, in the absence of proof of said fact and on foregoing reasons I am of the considered 20 C.C.NO:3505/2017 opinion that the complainant has miserably failed to prove his case in all preponderance of probabilities. Hence, complainant is not entitled for any of reliefs as sought in the complaint. Consequently, accused is entitled for benefit of doubt as he is not found guilty, because existence of debts between the complainant and accused and issuance of Ex.P.1 & 2 to cheques to discharge the debts has not been proved. Hence, accused is entitled for an acquittal and I answer this Point No.1 in the Negative.
15). POINT NO.2:- In view of my discussions as stated supra and my findings on Point No.1., I proceed to pass the following.
ORDER Acting under Section 255 (1) of Cr.P.C, accused is hereby acquitted of the offence punishable under Section 138 of Negotiable Instruments Act 1881.
The bail bond executed by the accused and surety bond executed stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 13 th day of October 2020 ).
(MANJUNATHA.K.P) XVIII A.C.M.M., BENGALURU.
21 C.C.NO:3505/2017ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : D.R.Shivashankar Reddy P.W.2 : C.Ashwatha Reddy
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1&2 : Two Cheques. Ex.P.1(a) &2(a) : Signatures of the accused. Ex.P.3&4 : Bank endorsements. Ex.P.5 : Office copy of legal notice. Ex.P.6 : Postal receipt Ex.P.7 : Courier receipt Ex.P.8 : Postal acknowledgment, Ex.P.9 : Loan agreement Ex.P.10 : Reply notice Ex.P.11 : RPAD cover Ex.P.12 : 16RTCs extracts Ex.P.13 : Genealogical Tree Ex.P.14 : 13 RTC extracts Ex.P.15 : Crop certificates Ex.P.16 : 7 RTC extracts, Ex.P.17 ; Milk Dairy Register Ex.P.18 : 19 photos and 2 CD Ex.P.19 : 17 photos and 2 receipts
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : V.Narayana Swamy
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D.1 : Copy of Sale agreement,
Ex.D.2 : Copy of Simple Mortgage Deed,
Ex.D.3 : Police acknowledgment
Ex.D.4 : Bank transaction details
Ex.D.5 : Bank statement,
Ex.D.6 : Copy of payment register
Ex.D.7 to 10 : RTC extracts,
Ex.D11 : Police acknowledgment,
Ex.D12 : Endorsement
XVIII A.C.M.M., BENGALURU.
22 C.C.NO:3505/2017
23 C.C.NO:3505/2017
(Judgment pronounced in Open Court vide a separate Order) ORDER XVIII A.C.M.M., BENGALURU.