Bangalore District Court
Sri.Kumar.S vs Sri.Thrupthi on 30 March, 2021
1 C.C.77/2018
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
Dated this the 30th day of March 2021
PRESENT: KALPANA.M.S.,
B.Sc., LL.M.,
XX ADDL. C.M.M.
Bengaluru.
C.C.No.77/2018
Complainant : Sri.Kumar.S.
S/o S.Siddappa,
Aged about 38 years,
R/at No.181, Sri UVS Krupe,
4th Main, M.S.Ramaiah Enclave,
8th Mile, Nagasandra Post,
Bengaluru - 560 073.
{ By Srinivasa T.Gowda - Advocate }
Vs.
Accused : Sri.Thrupthi,
Sole proprietor of M/s.Nice Line, Having its
ovvice at Rao Complex, 7th Main,
Bhuvaneshwari Nagar, T.Dasarahalli,
Bengaluru South- 560 057.
{ By A.T.Jayaraja- Advocate }
Offence complained of : U/S. 138 of N.I. Act.,
2 C.C.77/2018
Plea of accused : Pleaded not guilty
Final Order : Accused is Acquitted
Date of Order : 30-03-2021
JUDGMENT
The complainant has filed this complaint under section 138 of Negotiable Instruments Act ( in short referred as "N.I. Act") read with section 200 of code of criminal procedure against the accused alleging that, he has committed the offence.
02. The sum and substance of the complaint, is as follows;
The complainant and the accused are close friends. On 20.08.2016, the accused had obtained hand loan of Rs.3,30,000/- from the complainant by way of cash for his business necessities. The accused had agreed to repay the same within eight months, but not kept up his promise. 3 C.C.77/2018 After several demands and requests, towards discharge of his liability, accused has issued a cheque bearing No.000019 dated 30.08.2017 for Rs.3,30,000/-, drawn on Punjab & Maharashtra Co-Op Bank Ltd., Hesaraghatta Main Branch No.1, Bagalagunte, Bengaluru- 560 073. Complainant presented the said cheque for encashment through his banker i.e., UCO Bank, MEI Bagalagunte, Bengaluru- 560 073 and the said cheque returned with an endorsement "Payment Stopped", dated 01.11.2017. Thereafter, complainant got issued legal notice on 28.11.2017 to accused. The notice was returned with an endorsement "Not Claimed". Accused has not claimed the notice. It is contended that, accused intentionally not maintained sufficient amount in his bank account to honour the cheque issued in favour of the complainant towards discharge of legally enforceable debt and thereby committed an offence punishable under section 138 of Negotiable Instrument Act. On these allegations, present complaint is filed.
4 C.C.77/2018
03. After filing of complaint, this court perused the documents and taken cognizance for the offence punishable under section 138 of Negotiable Instrument Act, sworn statement of complainant was recorded. Being satisfied that there are prima-facie materials to proceed against accused, summons was issued. After appearance, accused enlarged on bail and plea was recorded as per section 251 of Cr.P.C. Accused has stated the defence that, complainant has misused the cheque and a complaint was lodged with the banker.
04. Learned Counsel for complainant prays to treat sworn statement as examination-in-chief and to consider the documents marked as Ex.P.1 to 9. Out of which, Ex.P.7 to 9 documents were marked through confrontation during the course of cross examination of the accused. The statement under section 313 of code of criminal procedure is recorded, read over and explained to the accused. The accused has stated the defence that, his cheque misplaced 5 C.C.77/2018 before six months and he had issued an intimation to his banker. Further, accused and his wife were examined as DW.1 & DW.2 and got marked documents from Ex.D.1 & Ex.D.2.
05. Complainant relied on the following citations;
1. 2019(10)SCC 287 Uttam Ram Vs. Devinder Singh Hudan And Another
2. AIR-2019 SC 1876 Rohitbhai Jivanlal Patel Vs. State of Gujarat and Another.
3. AIR-2019 SC 1983 Basalingappa Vs. Mudibasappa
4. AIR-2018 SC 3601 T.P.Murugan (Dead) Thr. Lrs. Vs. Bojan Post Nandhi Rep. Thr. POA Holder, T.P. Murugan Vs. Bojan.
5. 2017 (2) AKR-527 Arjun Vs. E.Shekar
6. 2014(4) AKR- 98 Sripad Vs. Ramdas M.Shet
7. 2006 Crl.L.J.1 Gorantla Venkateswara Rao Vs. Kolla Veera Raghava Rao and Anr.
6 C.C.77/2018
8. 2001 Crl.L.J.4647 Hiten P.Dalal Appellant Vs. Bratindranath Baneerjee Respondent
06. Accused relied on the following citations;
1. AIR 2019 SC 1983 Basalingappa Vs. Mudibasappa
2. AIR 2019 SC 942 Anss Rajashekar Vs. Augustus Jeba Ananth
3. ILR 2008 KAR 4629 Shiva Murthy Vs. Amruthraj
4. ILR 2009 KAR 2331 B.Indramma Vs. Sri.Eshwar
5. ILR 2014 KAR 6572 Sri.H.Manjunath Vs. Sri.A.M.Basavaraju
6. 2012(5) SCC 661 Aneeta Hada Vs. Godfather Travels and Tours Private Limited.
07. Heard the Learned Counsel for complainant and accused. Perused the written arguments filed on behalf of the complainant, citations and materials on record. 7 C.C.77/2018
08. The points that arise for my consideration are as follows;
POINTS
1. Whether the complainant proves that, accused issued a cheque bearing No.000019 dated 30.08.2017 for Rs.3,30,000/-, towards discharge of his liability, which was returned unpaid on presentation and also not complied the notice issued by the complainant and thereby committed an offence punishable under section 138 of Negotiable Instruments Act?
2. What Order?
09. My answer to the above points is as follows;
1. Point No.1: In the negative
2. Point No.2: As per final order for the following;
REASONS
10. POINT No.1: Complainant has filed this complaint alleging that accused has committed offence under section 138 of N.I. Act. He pleads and asserts that, towards 8 C.C.77/2018 discharge of his liability, accused has issued a cheque bearing No.000019 dated 30.08.2017 for Rs.3,30,000/-. The said cheque came to be dishonoured on presentation. Complainant has issued notice within time stipulated calling upon the accused to pay the amount covered under cheque. Inspite of service of notice, accused has not paid the amount within 15 days, which gave raise cause of action to file this complaint. He further relied on the documents from Ex.P.1 to 9. This witness was subjected to cross examination.
11. In this scenario, let us scrutinize the documents relied by complainant in order to examine the compliance of statutory requirements envisaged under section 138 of N.I. Act. Ex.P.1 is cheque dated 30.08.2017, which was returned with an endorsement " Payment Stopped", Ex.P.1(a) is the signature of the accused. Ex.P.2 is bank endorsement dated 01.11.2017, Ex.P.3 is legal notice dated 28.11.2017 and the said notice returned with an endorsement " Not claimed", which is deemed service of notice, Ex.P.4 is postal 9 C.C.77/2018 receipt, Ex.P.5 is the returned postal cover, Ex.P. 6 is the cheque dated 02.07.2016, Ex.P.7 to 9 documents marked through confrontation during the course of cross examination of the accused. Ex.P.7 is the copy of the joint memo in CC.9846/2017, Ex.P.8 is the copy of the joint memo order in order sheet in CC.9846/2017 and Ex.P.9 is copy of the complaint in CC.9846/2017. This complaint came to be filed on 20.12.2017. A careful scrutiny of the documents relied by the complainant goes to show that, statutory requirements of section 138 of N.I. Act is complied with and this complaint is filed within time. It is worth to note that, accused has not disputed the signature present on the cheque. Thus, statutory presumption enshrined under section 118 read with section 139 of N.I. Act would operate.
12. No doubt, the said presumptions of law are rebuttable in nature. The accused can take probable defence and rebut the presumption available to the complainant. Let us 10 C.C.77/2018 examine whether accused has successfully rebutted the presumptions of law. It is the specific defense of the accused that, he knows the complainant from 5 to 6 years. When the accused pursuing his acting profession, his wife used to lookafter their cloth shop. In such events, accused used to hand over the cheques for the purpose of purchase of cloths. Complainant frequently visited the cloth shop of the accused. During his visit, complainant has taken away the signed blank cheque of the accused and misused to file this complaint, which came to the knowledge only after receipt of summons of this case. Accused has lodged the complaint with his bank regarding misplacement of 5-6 cheques on 05.03.2017. He has not taken any amount from the complainant. On these contentions, accused sought for dismissal of the complaint and consequent acquittal. To endorse these contentions, accused and his wife were examined as DW.1 & DW.2 and relied the documents from Ex.D. 1 & 2. Ex.D.1 is the complaint to bank for stop 11 C.C.77/2018 payment dated 15.03.2017 and Ex.D.2 is the endorsement issued by the bank.
13. Learned counsel for the accused vehemently argued that, the defense of the accused is three fold. Firstly, the legal notice issued by the complainant returned unserved on 09.12.2017 as per the postal seal present on Ex.P.5- postal cover. Said aspect is admitted by the complainant in the course of cross examination, which reads as under;
" ಲಲಗಲ ನನಲಟಲಸ 'ನಟ ಕಕಕಮಮ ' ಎಎಬ ಹಎಬರಹದನಎದಗ ಹಎದರರಗದ ದನಎಕದ ಬಗಗ ಸರಯದ ಮಹತ ಇಲಕ. ದ.09.12.2017 ರಎದರ ಲಲಗಲ ನನಲಟಸ ಹಎದರರಗದ ಎಎದರ ಸರ."
This complaint came to be filed on 20.12.2017, i.e., before expiry mandatory period of 15 days provided under section 138 of NI Act. Accordingly, it is argued that, there is no compliance of section 138(c) of NI Act, which itself render this complaint invalid.
14. To counter this line of argument, complainant invited the attention of the court to the postal shara as per Ex.P.5, 12 C.C.77/2018 which reads that, ' door locked, intimation delivered on 29.11.2017 and 30.11.2017'. By relying on this document, it is argued that, intimation of legal notice was delivered to the accused on 30.01.2017, the 15 days period has to be calculated from that date and hence the complaint is properly filed intime on 20.05.2017 i.e., after expiry mandatory 15 days period provided under provision of law. In support of this contention, the Learned counsel relied on the decision of Hon'ble Hon'ble High Court of Karnataka, reported in, LAWS (KAR) 1999 7 73, Hon'ble High Court of Karnataka, Criminal Revision Petition Nos. 429,430 and 431 of 1998; H.G.Maraddi Vs. Shri Gopalkrishna, wherein, it is held that;
" The Learned counsel, for the petitioner relying upon the wordings in Section 138(c) of the Act contended that the cause of action for the complainant under this provision arises only after the expiry of 15 th day from the date of service of notice on the Petitioner- accused - It can be made out that the last endorsement of the postal authority is on 02.05.1998 and the next date of return is 03.05.1998 in my view the limitation starts from 02.05.1998 and then the complaint filed on 18.05.1998 cannot be said to be premature."13 C.C.77/2018
In the said decision, it is clearly observed that, the limitation starts from the last endorsement of the postal authority. In this case, the last endorsement of the postal authority is on 30.11.2017. The period of limitation commences from that date and thus the complaint filed on 20.12.2017, cannot be said to be premature. In that view of the matter, this defense of the accused holds no water.
15. Another defense of the accused is that, Ex.P.1- disputed cheque reveals that, drawer of the cheque is ' M/s Nice Line'. The cause title of the complaint shows that, prosecution is launched in his individual capacity and the firm/ concern ' Nice Line', is not arrayed as the accused. Non arraying of the firm/concern is fatal to the case of the complainant under section 141 of NI Act. To support this line of argument, the information elicited from the complainant is relied upon, which reads as under; 14 C.C.77/2018
" ನಪ.1-ವವದತ ಚಕಕನರ ನ ಆರನಲಪ ಕನಟಟದರ. ಸದರ ಚಕರ ಕ ಚಲಲ ಖತಗ ಸಲರದ. ವವದತ ಚಕಕನಲರರವ ನನಸ ಲನನನ ಆರನಲಪಯ ಅಎಗಡಯ ಹಸರಗದ. ನನಸ ಲನನನ ಸಎಸಸಯನರ ನ ಪಕಗರರನನಗ ಮಡದರ ಎಎದರ ಗನತಲಲಕ. ನನಸ ಲನನನ ಸಎಸಸಯನರ ನ ಪಕಗರರನನಗ ಮಡಲಕದ ಕರಣ, ದನರರ ಊರರತವಲಕ ಎಎದರ ಸರಯಲಕ."
From this part of evidence, it is crystal clear that, drawer of the cheque is ' Nice Line'- proprietorship concern. But, said firm is neither arrayed as accused nor served with legal notice. To counter this contention, it is vehemently argued on behalf of the complainant that, 'Nice Line' concern belongs to the accused. Hence, the legal notice sent to the accused is sufficient to comply the provisions of section 138 of NI Act, to launch prosecution against the accused.
16. To appreciate the contention of the accused, it is profitable to refer the decisions of the Hon'ble superior courts. The Hon'ble High Court of Karnataka in a decision reported in; "2016 (2) KCCR 1666 between Srinath V/s D.K. Venkatanareshbabu"; it is held that;
"As reflected in the cheque in question, it is issued by the accused-petitioner in the 15 C.C.77/2018 capacity of the Director of the Company. The complaint allegation is to the effect that the accused availed loan for the purpose of his factory business. In such condition, initial presumption under Section 118 (g) of the Act i.e., the holder of a negotiable Instrument is a holder in due course cannot be automatically invoked. Having received the cheque from the Director of the company and not arraigning the company as one of the accused is a serious lapse that vitiates the entire proceedings."
The Hon'ble High Court of Karnataka further cited the observation of Hon'ble Apex Court in the matter between "Aneeta Hada V/s Godfather Travels and Tours Private Limited in AIR 2012 SC 2795, wherein it is held that;
"In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself."
In the light of the proposition of law laid down in aforesaid decision, if we consider the facts and 16 C.C.77/2018 circumstances of the present case, as rightly contended on behalf of the accused, the cheque in question Ex.P.1 was issued by 'Nice Line' proprietary ship concern. As such, arraying the said firm as one of the accused is imperative to launch the present prosecution. Similar to the facts and circumstances of the cited decision, in the present case also, accused alleged to have availed loan for the purpose of development of his business and shop premises. Hence, the same analogy laid down in the aforesaid decision is applicable to the proprietorship concern/firm. In that view of the matter, the serious lapse attributed to the complainant vitiates the proceedings and hence present complaint is not maintainable at threshold.
17. Third defense of the accused is that, disputing financial capacity of the complainant. In support of this contention, accused invited the attention of the court to the material information elicited in the course of cross examination of the complainant, which reads as under; 17 C.C.77/2018
" 7-8 ವರರಗಳಎದ ರಯಲ ಎಸಟಲಟ ಮತರಲ ಡವಲಪರ ಬಸನಸ ಮಡರತಲದನ. ಸದರ ವವವಹರ ಮಡಲರ ಪರವನಗ ತಗದರಕನಎಡದನ. ಪರವನಗಯನರ ನ ನಯಲಯಕಕ ಹಜರರಪಡಸಲಕ.....
...... ನನನ ಮಸಕ ಆದಯ ರನ.1.50 ಲಕದಎದ ರನ.2 ಲಕ ಇದ. ಸದರ ಆದಯವನರ ನ ತನಲರಸರವ ದಖಲಗಳನರನ ನವಯಲಯಕಕ ಹಜರರಪಡಸಲಕ .....
......ದ.20.08.2016 ರಎದರ ಆರನಲಪಗ ರನ.3.30 ಲಕ ಹಣವನರ ನ ನಗದರ ರನಪದಲ ಕನಟಟದನ. ವವವಹರದ ಹಣವನರನ ಮನಯಲಟಟದ. ನವಲಶನ ಮರಟ ಮಡ ಬಎದ ಹಣವನರ ನ ಮನಯಲಟಟದ ಎಎದರ ತನಲರಸಲರ ದಖಲಗಳನರ ನ ಹಜರರಪಡಸಲರ ತನಎದರ ಇದಯ ಎಎದರ ಪರಶಲಲಸ ನನಲಡಬಲಕರ. "
Relying on this part of evidence, it is argued that, complainant has not placed iota of evidence to show his source of income and availability of funds as on the date of the impugned transaction. It is also argued that, complainant has not produced supportive documents such as, hand loan agreement, on demand promissory note and consideration receipt to show the lending of amount of Rs.3,30,000/-. This aspect throws shadow on the claim of the complainant.
18. In this context, it is profitable to refer the following decisions. The Hon'ble Superior Courts have pleased to held in plethora of decisions that, initial burden is on the 18 C.C.77/2018 complainant to show the availability of funds. In the decision reported in, (2014) 2 SCC 2376, between John K.Abraham Vs. Simon C.Abraham and another, it is held at para - 9 that, " It has to be stated that in order to draw presumption under section 118 read with section 139 of the Negotiable Instrument Act, 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 issuance of the cheque in support of the said payment advanced was true; and that the accused was bound to made the payment as had been agreed while issuing the cheque in favour of the complainant".
In another decision reported in, (2015) 1 Supreme Court Cases 99, between K.Subramani Vs. K.Damodara Naidu, wherein it is held that;
"Dishonour of cheque - Legally recoverable debt not proved as complaint could not prove source of income from which alleged loan was made to appellant- accused -
Presumption in favour of holder of cheque, hence, held, stood rebutted- Acquittal restored ".19 C.C.77/2018
In the decision reported in, ILR 2008 KAR 4629, in a case of Shiva Murthy Vs. Amruthraj, the Hon'ble High Court of Karnataka, it is held that;
"Before considering the conduct of accused to find out as to whether or not he has been able to rebut the presumption available under section 139, the court ought to have considered as to whether the complainant has proved the existence of legally enforceable debt. It is only after satisfying that the complainant has proved existence of legally enforceable debt or liability, the courts could have proceeded to draw presumption under section 139 of the NI Act and thereafter find out as to whether or not the accused has rebutted the said presumptions."
In the decision reported in, AIR 2008 SC 278, between John K John Vs. Tom Verghees and another, it is held that, "The presumption under section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".
20 C.C.77/2018In the latest decision of Hon'ble Supreme Court reported in, AIR 2019 Supreme Court 1983, Basalingappa Vs. Mudibasappa, decided on 09.04.2019, it is held that;
" (A) Negotiable Instruments Act (26 of 1881), S.138, S.139, S.118(a)- Dishonour of cheque- Non mentioning of date of issuance of cheque by the complainant in complaint as well as in his evidence- Complainant not satisfactorily explaining contradiction in complaint vis-a-vis his examination-in-chief and cross-examination - His failure to prove financial capacity though he is a retired employee to advance substantial amount to different persons including accused-
Findings of Trial Court that complainant cannot prove his financial capacity, cannot be termed as perverse with out discarding evidence laid by defence- Accused entitled to acquittal."
The proposition of law laid down in the above decisions is aptly applicable to the case on hand.
19. Furthermore, it is argued that, admittedly the complainant is an Income Tax Assessee, for the reasons best known to him, he has not shown this impugned 21 C.C.77/2018 transaction in his Income Tax returns. If at all, there was genuine transaction between the complainant and the accused, certainly it would reflected in Income Tax returns.
20. Admittedly, complainant has not disclosed the impugned transaction in his income tax returns. In his evidence, complainant has admitted as under;
" ವವವಹರ ಖರರರ -ವರಚಗಳನರ ನ ಪರಶಲಲಸ ಆದಯ ತರಗ ಪವತಸರತಲಲನ ಎಎದರ ಸರ. ಆರನಲಪಗ ರನ.3.30 ಲಕ ಹಣವನರನ ಕನಟಟರರವ ಅಎಶವನರನ ಆದಯ ತರಗ ರಟನನರ ನಲ ತನಲರಸಲಕ."
Further, as per the provisions of Income Tax Act and guidelines of RBI, no cash transaction more than Rs.20,000/- is permissible. Non production of the income tax returns of the complainant, is one more circumstances raises doubt in the mind of the court.
21. In this context, it is profitable to refer the decision of the Hon'ble High Court of Karnataka, Criminal Appeal No.1147 of 2016, dated 17th February 22 C.C.77/2018 2018, Abhay Kumar Jain Vs. Pankaj R Makkanna, it is held that;
" 8. The cash in the hands of the appellant is admittedly unaccounted. When the cash is unaccounted, it would mean non-compliance of the requirements of law. Therefore, the appellant cannot except to seek protection of the law in order to recover unaccounted amounts. The appellant cannot be permitted to violate the law as and when he chooses and consequently seek protection of the law for such violations."
In another decision reported of the Hon'ble High Court of Bombay, in 2009 CRI.L.J.3777, Sanjay Mishra Vs. Kanishka Kapoor @ Nikki and Anr, it is held that;
" (A) Negotiable Instruments Act (26 of 1881), S.138, S.139 - Dishonour of cheque-
Presumption as to legally enforceable debt- Rebuttal of - Amount advanced by complainant to accused was large amount not repayable within few months- Failure by complainant to disclose the amount in his Income Tax Return of Books of Accounts - Sufficient to rebut presumption u/S.139."
" (B) Negotiable Instruments Act (26 of 1881), S.138, S.139- Dishonour of cheque-23 C.C.77/2018
Presumption as to issuance of cheque in discharge of legally enforceable debt-
Amount advanced by complainant to accused was unaccounted cash amount- It was not disclosed in Income Tax Return- Liability to repay unaccounted cash amount cannot be said to be legally enforceable liability within meaning of explanation to S.138 Acquittal of accused proper. "
From the ratio laid down in the cited decisions, it is crystal clear that, the un- accounted cash amount cannot be considered as legally enforceable debt. This is one another circumstance goes against the case put forth by the complainant.
22. In the back drop of the aforesaid discussion, let us consider the crucial defense of the accused that, complainant taken away the signed cheque kept in his shop to misuse the same for un-lawful gain. To support this contention, accused invited the attention of the court on material admission elicited from the PW.1, which reads as under;
24 C.C.77/2018
" ವವದತ ಚಕಕನರ ನ ಆರನಲಪ ನನಗ ಕನಟಟ ಸಎದರರದಲ ಬಲರ ಯರನ ಇರಲಲಕ. ಆರನಲಪಯ ಅಎಗಡಗ ಪದಲ ಪದಲ ಹನಲಗ ಬರರತಲದ ಎಎದರ ಸರ. "
This admission fortifies the contention of the accused that, complainant is frequent visitor to his shop and during his visit, taken away the cheque in question along with other cheques and filled the cheque as per his convenience to make false claim. Further, it is an admission attributable to the complainant that, there is difference in the signature and other writings present on the disputed cheque.
23. Furthermore, accused heavily relied on the stop instructions given to the his bank as per Ex.D.1 and endorsement as per Ex.D.2 and contends that, immediately after knowledge of misplacement of the cheque, he has issued stop payment instructions to his banker, as he was not aware of the aspect of misuse by the complainant, which was came to his knowledge only after filing of this complaint. Per contra, complainant disputes these documents on the ground that, Ex.D.1 was issued on 01.08.2019 i.e., after filing of this complaint, which shows that, they are after thought documents to avoid payment of 25 C.C.77/2018 the cheque amount. On the other hand, it is vehemently argued on behalf of the accused that, Ex.D.2- endorsement issued by PMC bank clearly reads that, banker has acknowledged the receipt of letter dated 15.03.2017 by the complainant informing that he lost the cheques and hence to stop the payment, if presented. This document clearly goes to show that, the accused has issued stop payment instructions immediately after knowledge of his cheques were lost. Moreover, said document contains the cheque numbers including the present cheque. Therefore, the contention of the complainant that, Ex.D.1 & Ex.D.2 are afterthought documents to avoid liability, is not acceptable. On the contrary,these documents supports the defense of the accused and hence inspiring the confidence of the court. Therefore, this court has no hesitation to believe the defense of the accused that, one of his lost cheques is misused by the complainant for this false claim. 26 C.C.77/2018
24. That apart, except the disputed cheque, complainant has not placed any supportive documents, such as hand loan agreement, on demand promissory note and etc. In the normal course of business, any person would certainly obtain supportive documents for hand loan transaction of huge amount of Rs.3,30,000/-. Furthermore, complainant has not stated anything about the payment of interest to the alleged hand loan. This is one another suspicion circumstances goes against the claim of the complainant.
25. Further, complainant has also relied on the cheque in the name of Purushothama Reddy as per Ex.P.6 and Joint Memo filed on CC.9846/2017, on the file of XX ACMM, Bengaluru, and contends that, complainant herein has got obtained loan of Rs.1,50,000/- to the accused from the said Purushothama Reddy. At that time, accused has issued the Ex.P.6 -cheque in favour of the the said Purushothama Reddy and the said cheque bounced on presentation. These suggestions were out rightly denied by the accused. Inspite of that, complainant has not examined 27 C.C.77/2018 said Purushothama Reddy before the court to prove this contention. Complainant has also not placed any explanation how the cheque belongs to Purushothama Reddy reached his hands. On the contrary, accused has placed the evidence of DW.2, who asserts the defense raised by the accused. In the cross examination of DW.2, nonthing contrary has been elicited. In that view of the matter, this court find substance in the claim of the accused that, complainant has taken away his signed cheques and misused for un- lawful gain by filing the present case and other cases through third parties.
26. It is settled point of law that, the burden on the accused is not heavy and law permits him to rebut the presumptions by adopting the standard of proof through preponderance of probabilities. In this context, it is profitable to refer the decision of larger bench of the Hon'ble Apex Court reported in Rangappa Vs. Mohan reported in 28 C.C.77/2018 AIR 2010 SC 1898, Wherein their lordships pleased to observe that, "Keeping this in view, it is settled position that when an accused has to rebut the presumption.
under section 139, the standard of proof for doing so is that 'preponderance of probabilities'.
Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/ her own."
Further, in the decision reported in, (2006) 3 Supreme Court Cases (Cri) 30, in a case of M.S.Narayana Menon @ Mani Vs. State of Kerala and another, it is held that;
"Whether the initial burden has been discharged by accused is a question of fact- Burden of proof on accused is not heavy- He need not disprove the prosecution case in its entirety- He can discharge his burden on the basis of preponderance of probabilities through 29 C.C.77/2018 direct evidence or on the materials relied by the complainant".
In the light of he proposition of law laid down in the aforesaid decisions of Hon'ble Supreme Court of India, this court has no hesitation to hold that, in case of complainant discharging the initial burden by establishing financial capacity and availability of funds, then only the question of raising presumptions in favour of the complainant and thus calling upon the accused to rebut the presumptions arises. In that view of the matter, the defense putforth by the accused can be accepted by preponderance of probabilities, without analyzing much.
27. From the overall consideration of the evidence on record, it is clear that, accused has taken probable defence to rebut the presumptions of law. The standard of proof required for the accused is preponderance of probabilities. Whereas, complainant has to prove the guilt of the accused beyond all reasonable doubt. It could be seen that, the 30 C.C.77/2018 defence taken by the accused is probable. Hence, this court opined that, accused has rebutted the presumptions drawn in favour of complainant. Therefore, the onus shifts on the complainant to prove that, the disputed cheque was issued by the accused towards legally recoverable debt. No concrete and cogent evidence is placed to establish the same. Hence, this court opined that, complainant has not proved that disputed cheque was issued by the accused towards discharge of legally recoverable debt. Consequently, this point No.1 is answered in the negative.
28. POINT NO.2: In view of the reasons stated and discussed above, the complainant has not proved the guilt of the accused punishable under section 138 of N.I. Act. Hence, this court proceed to pass the following;
O R DE R Acting under Section 255(1) of code of criminal procedure, the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act. 31 C.C.77/2018
The bail bond of accused stand
canceled.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 30 th day of March 2021}.
(KALPANA.M.S.) XX ACMM, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 Kumara.S List of documents produced on behalf of complainant:
Ex.P.1 Cheque
Ex.P. 1(a) Signature of the accused
Ex.P. 2 Bank endorsement
Ex.P. 3 Copy of the legal notice
Ex.P. 4 Postal receipt
Ex.P. 6 Cheque dated 02.07.2016
32 C.C.77/2018
Ex.P.7 Copy of the joint memo in
CC.9846/2017
Ex.P.8 Copy of the Joint memo
order in order sheet in
CC.9846/2017
Ex.P.9 Copy of the Complaint in
CC.9846/2017
List of witnesses examined on behalf of accused:
D.W.1 Thrupthi DW.2 Mamatha.B
List of documents produced on behalf of accused:
Ex.D.1 Complaint to bank for stop
payment dated 15.03.2017
Ex.D.2 Endorsement issued by the
bank.
XX A.C.M.M.,
Bengaluru.