Bangalore District Court
Sri. K.M. Gangadhar vs Sri. S.S. Ananthakrishna @ on 20 April, 2018
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SMT. C.G. VISHALAKSHI, B.A.L., L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO.18840/2016
Dated: This the 20th day of APRIL-2018
COMPLAINANT/S: Sri. K.M. Gangadhar,
S/o. Late. Guddaiah,
Aged about 61 years,
Presently R/at. No.26,
1st Floor, Flat No.102,
West Park Apartment,
14th 'A' Cross, 2nd Main,
Malleswaram,
Bengaluru-560055.
ACCUSED: Sri. S.S. Ananthakrishna @
S. Adithya Rao,
S/o. Late. Srinivas Rao,
Shidle Estate,
Bharathinagar Post-577139,
Menase, Shringeri Taluk,
Chikmangaluru District.
OFFENCE Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Convicted
**
JUDGEMENT 2 C.C.18840/2016
JUDGEMENT
This complaint is filed against the accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The father of the accused was known to the distant relative of wife of the complainant Sri. Shankarappa Gowda for long time and thus the complainant knows the accused since more than 15 years. On such acquaintance, the accused along with his mother and brother have approached the complainant seeking financial assistance of Rs.25,00,000/- for the development of Petrol Bunk, Rice Mill and Agricultural land of his family. Considering the legal and family necessities of the accused and his relationship with him, on the guaranty of the mother and elder brother of the accused, the complainant had agreed to pay hand loan up to Rs.20,00,000/- infavour of the accused. The accused and his mother and elder brother had agreed to repay the said amount within one year and JUDGEMENT 3 C.C.18840/2016 voluntarily under taken to pay the same with interest at the rate of 1.25% p.m. On such assurance and guaranty of the mother and elder brother of the accused, the complainant had paid a sum of Rs.20,00,000/- infavour of the accused through account payee cheque drawn on State Bank of India, Cauvery Bhavan Branch, Bengaluru-
560009. The accused encashed the said cheque on 15-07- 2013. Towards guaranty for repayment of the said loan amount, the accused had executed on demand promissory note with consideration receipt on 12-07-2013 and agreed to repay the same with interest at the rate of 1.25% p.m. on demand. The accused also had executed a sale agreement infavour of the complainant on 12-07-2013 acknowledging the receipt of the loan amount.
3. Thereafter, the accused has started to pay interest at the rate of 1.25% p.m. from August-2013 and paid the same for a period of six months. Thereafter the accused and his mother and brother have failed and neglected to make payment of monthly interest. The complainant repeatedly demanded for repayment of principle amount JUDGEMENT 4 C.C.18840/2016 along with up to date interest. The accused was postponed the same on one reason or other reason. But on persistent demands, with the consent of his mother and brother, the accused had given cheque bearing No.461476, dated: 02- 05-2016 for Rs.25,00,000/- drawn on Karnataka Bank Limited, Shringeri Branch, which included up to day interest and assured that the cheque would be honoured on its presentation. As per the assurance, when the complainant has presented the said cheque for encashment through his banker State Bank of India, Cauvery Bhavan Branch, Bengaluru, the said cheque was returned unpaid and dishonoured with an endorsement for 'Funds Insufficient' on 09-05-2016 and it was received by the complainant on 11-05-2016. After receipt of such endorsement, the complainant caused legal notice against the accused on 01-06-2016 by RPAD calling up on the accused to clear the amount covered under the cheque within 15 days. The notice was duly served on the accused on 03-06-2016. Inspite of the same, the accused failed to clear the cheque amount and no reply has been given. Hence, having no other go, the complainant maintained JUDGEMENT 5 C.C.18840/2016 this complaint against the accused, alleging that the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and prays to deal the accused as per law.
4. On presentation of the complaint, this court has taken cognizance of the offence; sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to him. Substance of the accusation was read over and explained to the accused. The accused did not plead guilty and claims to be tried. Hence, the matter was posted for the evidence of the complainant.
5. In order to prove the case of the complainant, he got examined himself as PW.1 and got marked documents as Ex.P1 to P10 and closed his side evidence. After completion of the complainant's evidence, the accused was JUDGEMENT 6 C.C.18840/2016 examined under Section.313 of Cr.P.C. and his statement was recorded. The accused denied the incriminating circumstance appeared in the evidence of PW.1 and chosen to lead defence evidence. To substantiate his defence the accused examined himself as DW.1, and examined one witness as DW.2 and got marked document at Ex.D1 to D7 on his side.
6. Heard arguments.
To strengthen the case of the complainant, the counsel for the complainant has relied upon the following citations:
1999 Crl.L.J. 4606(SC) K. Bhaskaran V/s. Sankaran Vaidhyan Balana & Anr ** (2001)8 Supreme Court Cases 458 K.N. Beena V/s. Muniyappan & Anr.
** 2001 SCC (Cri) 960 Hiten P. Dalal V/s. Bratindranath Banerjee ** 2010 AIR SCW 2946 Rangappa V/s. Mohan ** ILR 2013 KAR 1201 M. Prakash V/s. Murugarajendra Co-Op. Bank Ltd.
** 2015 AIR SCW 3040 JUDGEMENT 7 C.C.18840/2016 T. Vasanthakumar V/s. Vijayakumari ** ILR 1998 KAR 1825 J. Rajanna Setty V/s. Sri Patel Thimmegowda ** ILR 1999 KAR 3200 K. Narayana Reddy V/s. N.M. Muniyappa ** 2001(4) Kar.L.J. 122 S.R. Muralidar V/s. Ashok. G.Y. ** ILR 2006 KAR 2054 H.S. Srinivasa V/s. Girijamma & Others ** ILR 2001 KAR 3399 Pankajbhai Nagjibahi Patel V/s. State of Gujarat & Anr ** ILR 2003 KAR 4551 M/s. GPR Housing Pvt. Ltd. Rep. by its Chairman and Managing Director, Bangalore & Anr V/s. K. Venugopala Krishna ** 2004(3) KCCR 1816 L. Mohan V/s. V. Mohan Naidu ** 2006 Cri.L.J. 1 Gorantla Venkateswara Rao V/s. Kolla Veera Raghava Rao and Anr.
** 2006 Cri.L.J. 3760 Smt. Umaswamy V/s. K.N. Ramanath ** 2002(5) Kar.L.J. 516 Smt. Bhavani V/s. D.C. Doddarangaiah & Anr.
** (2007) 6 Supreme Cour Cases 555 C.C. Alavi Haji V/s. Palapetty Muhammed & Anr.
** JUDGEMENT 8 C.C.18840/2016 To strengthen the case of the accused, the counsel for the accused has relied upon the following citations:
ILR 2008 KAR 4629 Shiva Murthy V/s. Amruthraj ** 2006 AIR SCW 4652 M.S. Narayana Menon @ Mani V/s State of Kerala & Anr ** AIR 1961 Supreme Court 1316 Kundan Lal Rallaram V/s. Custodian, Evacuee Property, Bombay.
** AIR 1953 Supreme Court 225 Hiralal & Others V/s. Badkulal and others ** AIR 1964 Supreme Court 136 A. Raghavamma and Anr V/s. A. Chenchamma & Anr.
** 2011 Cri.L.J.552 Amzad Pasha V/s. H.N. Lakshmana ** 2004 Cri.L.J. 4436 C. Manohar V/s. B.R. Poornima ** 2012(2) DCR 461 Smt. Shubra Mitra V/s. Sri. Dipankar Saha & Anr ** 1995 Cri.L.J.562 Uttam V/s. The State of Maharashtra & Ors ** 1995 Cri.L.J. 560 Shri. Taher N. Khambati V/s. M/s. Vinayak Enterprises, Secunderabad & Others.
** 2008 Cri.L.J. 3411 K. Narayana Nayak V/s. M. Shivarama Shetty ** 2008 Cri.L.J. 2955 JUDGEMENT 9 C.C.18840/2016 Rajendraprasad Gangabishen Porwal V/s. Santoshkumar Parasmal Saklecha & Anr.
** 2008 Cri.L.J. 3004 Sudhir Kumar Bhalla V/s. Jagdish Chand & etc., ** 2005 Cri.L.J.576 Amaravathi Chits Investments V/s. T.M. Vaidyanathan ** 2007 Cri.L.J.1285 V.K. Gemini V/s.Chandran & Anr.
** AIR 2008 Supreme Court 1325 Krishna Janardhan Bhat V/s. Dattatraya G. Hegde ** 2011(1) DCR 687 T.G. Balaguru V/s. Ramachandran Pillai **
7. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
POINTS
1. Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence punishable under Section.138 Negotiable Instruments Act?
2. What order?
8. My answers to the above points are as follows: JUDGEMENT 10 C.C.18840/2016
Point No.1: In the Affirmative
Point No.2: As per the final order,
for the following.
:: REASONS ::
9. POINT NO.1: As the accused did not plead guilty,
the complainant has chosen to examine himself as PW.1 and got marked documents as Ex.P1 to P10.
As per the decision reported in ILR 2008 KAR PAGE- 4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex court in AIR-2008 SC-1325 between Krishna Janardhan Bhat V/s Dattatreya G. Hegde, in order to attract Sec.138 of Negotiable Instruments Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
JUDGEMENT 11 C.C.18840/2016
10. Keeping in view the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P1 is the cheque bearing No.461476, dated: 02- 05-2016 for Rs.25,00,000/-, drawn on Karnataka Bank Ltd., Sringeri Branch-577139. As per the say of the complainant, Ex.P1(a) is the signature of the accused.
(b) Ex.P2 is the Bank endorsement issued by the Bank authorities, dated: 09-05-2016 for having dishonour of the cheque for the reason 'Funds Insufficient'.
(c) It must be noted as per Clause (b) proviso to Section.138 of Negotiable Instruments Act, the complainant was required to make a demand for payment of the said amount within 30 days from the date of receipt of cheque as un-paid.
(d) Ex.P3 is copy of the legal notice dated: 01-06-2016 which shows that the complainant made demand in writing calling upon the accused to make repayment of the said JUDGEMENT 12 C.C.18840/2016 cheque amount by issuing notice against him which is within 30 days.
(e) Ex.P4 is the postal receipt and Ex.P5 is the postal acknowledgement card, it shows that notice was sent against the accused under RPAD was duly served on the accused.
As per Clause (C) proviso to Section.138 of Negotiable Instruments Act, the accused is entitled 15 days time to make payment of money covered under cheque. Further, as per Section.142(b) of Negotiable Instruments Act, complaint has to be filed within 30 days from the date of which the cause of action arose. Therefore, the complainant has filed this complaint well within time.
11. Thus, the complainant has fulfilled all the ingredients, which were required for the completion of the offence punishable under Section.138 of Negotiable Instruments Act.
JUDGEMENT 13 C.C.18840/2016
12. On perusal of the entire materials on record, it shows that the complaint maintained this complaint against the accused alleging that accused being known person through his wife's relative Shankarappa Gowda since more than 15 years, had approached him for financial assistance to the tune of Rs.25,00,000/- for development of Petrol Bunk, Rice Mill and for improvement of agricultural land of his family. Considering the request of the accused and his relationship and on the guaranty of the mother and elder brother of the accused, the complainant had agreed to pay the loan up to Rs.20,00,000/-. The accused and his mother and brother had agreed to pay the same within one year and they have voluntarily under taken to pay interest at the rate of 1.25% p.m. Thus, the complainant has paid a sum of Rs.20,00,000/- infavour of the accused through account payee cheque drawn on S.B.I. Cauvery Bhavan Branch, Bengaluru and it was encashed by the accused on 15-07-2013. Towards guaranty of repayment of the loan amount, the accused had executed on demand promissory note and consideration receipt and also an agreement infavour of the accused on 12-07-2013 by acknowledging JUDGEMENT 14 C.C.18840/2016 the receipt of the loan amount and agreed to repay the same with interest at the rate of 1.25% p.m. within one year. Thereafter though accused and his family members have paid interest from August-2013 for a period of six months, but thereafter they failed and neglected to pay the interest. The accused was postponed the same on one pretext or the other. But on persistent demands, he had issued the disputed cheque infavour of the complainant towards repayment of the loan amount with interest. The said cheque on its presentation by the complainant through his banker, it was dishonored for the reason 'Funds Insufficient'. Despite of issuance of legal notice against the accused and its due service on him, since he did not come forward to pay the amount covered under the cheque, he maintained this complaint in time.
13. Per-contra, on reading the line of cross-examination and the defence setup by the accused, it shows that there is no any dispute so as to the acquaintance in between the complainant and the accused. It is also not in dispute that the disputed Ex.P1 cheque is belongs to the bank account JUDGEMENT 15 C.C.18840/2016 of the accused and Ex.P1(a) is the signature of the accused. But the accused has denied the alleged loan transaction in between himself and the complainant, contending that he never borrowed any loan from the complainant and he never issued this disputed cheque infavour of the complainant towards discharge of any debt or liability to the tune of Rs.25,00,000/- and taken up the defence that the complainant had approached him stating that he intend to purchase the land to an extent of 19 guntas in Sy. No.137, 138 and 139 of Bellandur Village, Sringeri Taluk, for sale consideration of Rs.1 crore and stated that he has to pay advance amount of Rs.40,00,000/- and thus he had induced the accused to invest the amount of Rs.20,00,000/- stating that it would fetch profits and also stated that he also paying amount of Rs.20,00,000/- as advance. On such inducement the accused was ready to invest the amount and accordingly they have paid the amount of Rs.40,00,000/- as advance by entering into an agreement with the said Sheshagiri Bhat, the owner of the lands proposed to be purchased by this complainant. The agreement was entered into between JUDGEMENT 16 C.C.18840/2016 the accused and the said Sheshagiri Bhat in the name of the accused at the instance of the complainant and thus he has paid a sum of Rs.20,00,000/- by way of cheque in the name of the accused, towards investment of the amount in respect to the purchase of the lands. As the complainant has paid a sum of Rs.20,00,000/- by way of cheque in the name of the accused, towards investment in respect to the purchase of lands, the complainant had obtained his two signed blank cheques and singed stamp papers and his signatures to demand promissory note and consideration receipt as security. Thereafter, though their there was payment of the amount, the complainant by misusing his signed blank cheques, filed has filed this false complaint against him, though there is no any debt or liability in between himself and the complainant.
14. Thus, there is no dispute so as to the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is his signature.
JUDGEMENT 17 C.C.18840/2016
15. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE- 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of Negotiable Instruments (cheque in question) is admitted as well as proved.
16. In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption under Section.139 of Negotiable Instruments Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration.
17. Having admitted the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is JUDGEMENT 18 C.C.18840/2016 his signature, presumption arose infavour of the complainant under Section.139 of Negotiable Instruments Act. Hence, the burden is on the accused to rebut the same with probable evidence.
18. To prove the case of the complainant, he examined himself as PW.1 and got marked document at Ex.P1 to P10.
19. To disprove the case of the complainant and to put forth his defence, the accused himself examined as DW.1 and examined witness as DW.2 and got marked documents at Ex.D1 to D7.
20. On careful scrutiny of the evidence of both complainant and the accused both oral and documentary, it shows that the complainant maintained this complaint against the accused alleging that the accused had borrowed loan of Rs.20,00,000/- from him through account payee cheque for the purpose of improvement of his Petrol Bunk, Rice Mill and for improvement of JUDGEMENT 19 C.C.18840/2016 agricultural land of his family, agreeing to repay the same within one year with interest at the rate of 1.25% p.m. and had executed documents like pro-note and consideration receipt and also agreement infavour of the complainant for acknowledgment of the receipt of the loan amount and agreed to pay the amount on demand with interest and thereafter though accused and his family members have paid interest from August-2014 for a period of six months, but thereafter they failed and neglected to pay the interest. Hence, the complainant had approached the accused and requested him to pay back his principal amount with interest, then the accused had issued the disputed cheque infavour of the complainant. But the said cheque on its presentation bounced back unpaid for the reason 'Funds Insufficient' and he has not complied with demands of notice and make good of the cheque amount inspite of service of demand notice. Hence, it is the assertion of the complainant that the transaction allegedly existed in between himself and the accused is loan transaction. JUDGEMENT 20 C.C.18840/2016
21. Per-contra, on reading the lieu of cross-examination, it shows that the accused has denied the claim and allegation of the complainant that the alleged transaction existed in between himself and the complainant was loan transaction as false. But taken up the defence that he never borrowed any loan from the complainant to the tune of Rs.20,00,000/- and he never issued this disputed cheque infavour of the complainant towards discharge of any debt or liability by denying the existence of loan transaction, but contended that the complainant had intended to purchase the land to an extent of 19 guntas in Sy. No.137, 138 and 139 of Bellandur Vilalge, Sringeri Taluk from one Sheshagiri Bhat for sale consideration of Rs.1 crore and odd and towards payment of the advance sale consideration amount, the complainant had approached the accused stating that he has to pay a sum of Rs.40,00,000/- as advance sale consideration and by expressing his intention to purchase the lands with the accused, had induced the complainant to invest a sum of Rs.20,00,000/- assuring that it would fetch profit. Hence, the accused also agreed to purchase the said land under JUDGEMENT 21 C.C.18840/2016 partnership by investing a amount of Rs.20,00,000/-. The accused had agreed to enter into the sale agreement with the said Sheshagiri Bhat on behalf of the complainant, as the complainant was not in a position to purchase the land in his name as he was in Judicial Service. Hence, the accused at the instance of the complainant, had entered into the sale agreement with the said Sheshagiri Bhat in his name on behalf of the complainant. The complainant has paid a sum of Rs.20,00,000/- infavour of the accused through account payee cheque to pay the said amount as advance amount of Rs.20,00,000/- on his behalf under the said agreement to sell infavour of the said Sheshagiri Bhat. Since the said accused had entered into sale agreement in his name with the said Sheshagiri Bhat and as he had paid the amount of Rs.20,00,000/- infavour of the accused through cheque, the complainant had obtained his two signed blank cheques of the accused along with his signatures to the blank demand promissory note and consideration receipt and also to the blank stamp paper as security. Thereafter the said transaction was not materialized and thus, the amount was repaid to the JUDGEMENT 22 C.C.18840/2016 complainant. Inspite of the same, the complainant by misusing his cheques and other documents, filed this false complaint against him, though there exists no debt or liability. Thus, the accused has denied the claim and allegation of the complainant that the transaction allegedly existed in between in himself and the complainant as loan transaction as false. On the other hand, according to him, it is land dealing transaction.
22. Thus, the accused has denied the very existence of legally enforceable debt or liability in between himself and the complainant. The learned advocate of the accused during his arguments, argued that in order to raise presumption under Section.139 and 118 of Negotiable Instruments Act, at first instance the complainant must prove the fact of existence of legally enforceable debt or liability in between the complainant and the accused beyond shadow of doubt. Only on establishing the fact of existence of such legally enforceable debt or liability, presumption could be raised infavour of the complainant under Section.139 Negotiable Instruments Act. JUDGEMENT 23 C.C.18840/2016
23. To support his contention, he placed authority reported in ILR 2008 KAR 4629 Shiva Murthy V/s. Amruthraj. But as per the decision reported in AIR 2010 SC-2946 Rangappa V/s Mohan, their lordship held that presumption under Section.139 of Negotiable Instruments Act is a mandatory presumption and the said presumption is mandated by Seciton.139 of Negotiable Instruments Act indeed includes existence of debt or liability. Hence, contended that once cheque is drawn from the account of the accused and he has admitted about the signatures found on the said documents, presumption has to be drawn infavour of the holder of the cheque that the said instrument has given towards discharge in whole or in part of any debt or other liability and the accused shall displace the presumption by raising probable defence by placing any cogent and convincing evidence. Only on such displacement of the said statutory presumption, onus shifts on the complainant i.e., reverse onus shifted on the shoulder of the complainant to prove his case beyond reasonable doubt with necessary cogent and documentary JUDGEMENT 24 C.C.18840/2016 evidence. Hence, the arguments of the accused in this regard holds no water.
24. In the case on hand, as aforesaid discussion, there is no any dispute so as to the fact that Ex.P1 cheque is belongs to the bank account of the accused and Ex.P1(a) is the signature of the accused. So, having admitted the fact that Ex.P1 cheque is belongs to the bank account of the accused and the disputed signature i.e., Ex.P1(a) is that of the accused, presumption is available for the complainant under Section.139 of Negotiable Instruments Act. Hence, initial burden is on the accused to dispel the same by raising probable defence with necessary cogent and convincing evidence.
25. To prove the fact that the transaction existed in between him and the accused was loan transaction, the complainant deposed his evidence on oath by swearing to an affidavit and deposed about the lending loan infavour of the accused to the tune of Rs.20,00,000/- by way of account payee cheque to meet his legal necessities i.e., for JUDGEMENT 25 C.C.18840/2016 the purpose of business of Petrol Bunk, Rice Mill and for improvement of agricultural land of his family etc. The accused has denied the allegation of the very loan transaction in between himself and the complainant as false.
26. To prove the defence, the accused counsel extensively cross-examined PW.1. During the cross-examination of the complainant, the accused elicited evidence that the complainant has not produced any documents like demand promissory note and consideration receipt and agreement allegedly executed by the accused in his favour for having acknowledgement of the receipt of the loan amount. With this, the accused made an attempt to say that there is no any loan transaction in between the complainant and the accused and the complainant has not paid any amount to the accused to the tune of Rs.20,00,000/- as hand loan and as such the complainant has not produced any documents like on demand promissory note and consideration receipt and the agreement allegedly executed by the accused infavour of the complainant. JUDGEMENT 26 C.C.18840/2016
27. If really was there any such loan transaction in between the complainant and the accused and the accused had executed such document like pro-note and consideration receipt and the agreement infavour of the complainant, then certainly he would have produced those documents before this court. Hence, argued that an adverse inference could be drawn against the complainant under Section.114(g) of Indian Evidence Act, that there is no such document in the possessions of the complainant.
28. Further argued that if really was there any documents allegedly executed by the accused infavour of the complainant, then certainly the complainant would have proved the alleged loan transaction by examining any witnesses to the alleged documents i.e., pro-note and consideration receipt and so also the agreement. But no such witnesses have been examined by the complainant.
29. Though at one stretch, the complainant has stated that one Nataraj was present at the time of execution of the said document, but the complainant has not examined the JUDGEMENT 27 C.C.18840/2016 said witness Nataraj before this court. Thus, it is argued by the accused that there was no any loan transaction in between the complainant and the accused.
30. No doubt there is omission on the part of the complainant to produce documents like pro-note, consideration receipt and the agreement allegedly executed by the accused infavour of the complainant for having acknowledged receipt of the amount agreeing to repay the same on demand with interest etc. But mere that fact it cannot be said that there was no any loan transaction at all in between the complainant and the accused, when there is sufficient evidence about the receipt of Rs.20,00,000/- by the accused from the complainant through account payee cheque. Because, there is no any dispute with regard to the fact of receipt of sum of Rs.20,00,000/- by the accused from the complainant through cheque and its encashment.
31. No doubt, as per the contention of the accused, the said amount was towards investment, in order to purchase JUDGEMENT 28 C.C.18840/2016 the land etc., but whatsoever it may be, the fact remains the same that the complainant has paid a sum of Rs.20,00,000/- infavour of the accused through cheque and it was received and encashed by the accused. So, the accused had clearly admitted the fact that there was monitory transaction in between himself and the complainant. When such being case, burden is on the accused to prove the fact that the receipt of the amount of Rs.20,00,000/- from the complainant through cheque was not towards loan transaction, but towards transaction in respect to the purchase of the lands by placing any cogent and convincing evidence.
32. The learned advocate for the accused during arguments argued that the purpose for which the accused allegedly borrowed loan is not all proved by the complainant contending that as per the version of the complainant, the accused had borrowed such loan of Rs.20,00,000/- for the purpose of development of petrol bunk, rice mill and for improvement of agricultural land and argued that the accused does not possess any petrol JUDGEMENT 29 C.C.18840/2016 bunk, rice mill and so also he has no landed property and as per the complainant only, basing on the visiting card which is marked at Ex.P9, he had advanced loan infavour of the accused etc. Hence, argued that there was no any loan transaction at all.
33. But on careful perusal of the evidence of PW.1, it shows that the accused while approaching the complainant for loan along with his mother and brother had asserted that he is the owner of the Petrol Bunk and had furnished his visiting card. But later on he came to know that one Shwetha the sister-in-law of the accused was the owner of the said Petrol Bunk. But it is pertinent to note that as per the version of the complainant, the accused along with his mother and brother, had approached for loan from the complainant to the tune of Rs.25,00,000/- for the purpose of development of Petrol Bunk, Rice Mill and for improvement of the agricultural land of his family. That means to say that the accused along with his mother and brother had stated about the purpose for the loan was for the development of Petrol Bunk, Rice Mill and for JUDGEMENT 30 C.C.18840/2016 improvement of the agricultural land of his family and he nowhere stated that the accused had borrowed loan for development of Petrol Bunk, Rice Mill and for improvement of the agricultural land belongs to the ownership of the accused. On the other hand, it is the version of the complainant also that he had borrowed such loan with regard to the development of Petrol Bunk, Rice Mill and for improvement of the agricultural land of their family.
34. Mere that fact that on that time the complainant had not verified the documents pertaining to the title of the Petrol Bunk, Rice Mill and other properties of the accused family, it cannot be said that he had not at all lent any loan infavour of the accused. Because, it is undisputed fact that the accused hails from the agricultural family and the family of the accused possess both Rice Mill as well as agricultural land including the Petrol Bunk which was stands in the name of sister-in-law of the accused. This fact is not disputed or denied by the accused. When such being the case, mere the fact that the complainant had not verified the title of the documents pertaining to the above JUDGEMENT 31 C.C.18840/2016 said property before advancement of loan of Rs.20,00,000/-, cannot be a ground to suspect the entire case of the complainant. Because, the accused is not stranger, on the other hand, as per the version of the complainant, he is his far relative through his wife. When such being the case, the say of the accused that mere the fact that the Petrol Bunk stands in the name of his sister- in-law and not in the name of the accused, it cannot be said that the complainant had not at all lend any loan of Rs.20,00,000/- infavour of the accused and that cannot be a ground to suspect the entire case of the complainant.
35. No doubt, the accused may not independently own any property, but it is the version of the complainant that at the time of borrowing loan from him, the accused has sought loan from the purpose of development of Petrol Bunk, Rice Mill and so also the agricultural land of the family and hence on the assurance the mother and brother of the accused, he had advanced loan infavour of the accused by considering the fact of his relationship and JUDGEMENT 32 C.C.18840/2016 about the acquaintance of the accused. Hence, the arguments of the accused in that regards holds no water.
36. On the other hand, there is evidence before this court that the accused had clearly admitted the fact of receipt of Rs.20,00,000/- by the complainant through cheque. When such being the case, burden is on the accused to prove the fact that the receipt of such amount of Rs.20,00,000/- by the complainant through cheque is not towards loan, but it is towards land dealing transaction by placing any cogent and documentary evidence.
37. Though at one stretch the accused argued by referring the fact of imposing the rate of interest as 1.25% p.m. and argued that if at all the accused has paid interest to the alleged loan amount of Rs.20,00,000/- from the date of encashment of the cheque of Rs.20,00,000/-, the cheque allegedly received by he accused from the complainant and till the issuance of disputed cheque, it would come to Rs.8,25,000/-. If that is considered, then the disputed cheque must be for Rs.28,25,000/-, but the disputed JUDGEMENT 33 C.C.18840/2016 cheque is for Rs.25,00,000/- only and hence argued that what about remaining about of Rs.3,25,000/-. With this he made an attempt to say that there was no any loan transaction at all and the disputed cheque was not given by the accused towards repayment of any loan amount with interest infavour of the complainant.
38. But the PW.1 to prove the fact that the monitory transaction allegedly taken place in between himself and the accused is nothing but loan transaction and the accused had borrowed loan from the complainant agreeing to repay the same with interest at the rate of 1.25% p.m. not only adduced his oral evidence, but also produced document like bank account extract as per Ex.P7 and also he relied on the cross-examination of DW.1. Wherein the accused clearly admitted the fact that as per the entry dated: 07-08-2015 in Ex.P7 bank statement, a sum of Rs.50,000/- was transferred from the bank account of the accused to the bank account of the complainant. It is also admitted that as per the entry dated: 28-11-2014 in Ex.P7 statement, a sum of Rs.1,50,000/- was transferred from JUDGEMENT 34 C.C.18840/2016 the bank account of his wife Lakshmi. P. Rao to the bank account of the complainant. Though accused denied the fact that those payments was not towards the interest to any loan transaction. But when there is clear admission from the mouth of accused with respect to the payment of such Rs.50,000/- and Rs.1,50,000/- from the bank account of the accused and his wife to the bank account of the complainant, then it is for the accused to prove the fact that to which transaction those payments were made by the him and his wife. But no such explanation offered by the accused in that regard.
39. Though accused at one stretch, made an attempt to say that the alleged payment of Rs.1,50,000/- by way of transfer from the account of his wife to the bank account of the complainant is related to some other transaction etc., but he has not stated what was the transaction existed in between the complainant and wife of the accused. Unless he proves the said fact by producing some material evidence before this court or by examining his wife before this court, the say of the accused that the said payment of JUDGEMENT 35 C.C.18840/2016 Rs.1,50,000/- from the bank account of the wife of the accused to the bank account of the complainant is related to some other transaction etc.,, cannot be acceptable and convincing one.
40. Further at one stretch, the accused made an attempt to say that the complainant had obtained a sum of Rs.50,000/- from the accused out of the amount of Rs.20,00,000/- which was with the accused for his daily expenses and thereafter he repaid the said amount to the accused etc., and hence contended that the entry pertaining to the deposit of the sum of Rs.50,000/- from his bank account to the bank account of the complainant as per Ex.P7 is in respect to the such payment etc. But the said explanation given by the accused is itself creates doubt.
41. Because, as per the version of the accused himself the complainant was a Judicial Officer, having hand sum salary. Further, it is admitted fact that the complainant has paid a sum of Rs.20,00,000/- infavour of the accused JUDGEMENT 36 C.C.18840/2016 by way of cheque. When such being the case, the say of the accused that the complainant had obtained a sum of Rs.50,000/- for his daily expenses etc., is not acceptable and convincing one. Hence, the explanation given by the accused with regard to the alleged entries pertaining to the payment of Rs.50,000/- and Rs.1,50,000/- to the bank account of the complainant through the account of the accused and his wife is not towards interest, but towards some other transaction etc., is not acceptable one.
42. So for as the arguments of the accused with respect to the mathematical calculations about the interest and about issuance of disputed cheque for Rs.25,00,000/- by the accused infavour of the complainant is concerned, it is the claim of the complainant that the accused had borrowed loan of Rs.20,00,000/- from him by way of cheque agreeing to repay the said debt with interest at the rate of 1.25% p.m. and paid interest for a period of six months. But thereafter, as the accused and his family have failed and neglected to pay the interest, the complainant had demanded the accused to repay the loan amount with JUDGEMENT 37 C.C.18840/2016 up to date interest and as such the accused had given the disputed cheque for Rs.25,00,000/- towards discharge of the loan amount with interest.
43. No doubt, as per the mathematical calculations by the accused, the amount would come to Rs.8,42,514/- towards interest. But mere that fact that the cheque allegedly given by the accused infavour of the complainant is for Rs.25,00,000/-, it cannot be said that there was no any loan transaction in between the complainant and the accused. But as per the evidence of the PW.1, the accused paid interest at the rate of 1.25% p.m. by way of depositing the amount to his bank account. The said fact is corroborated by producing document like Ex.P7 bank statement which clearly reflects the fact that there was payment of Rs.2,00,000/- i.e., Rs.50,000/- plus Rs.1,50,000/- by the accused and his wife to the bank account of the complainant towards interest. Since the accused and his family members neglected to pay the amount and the complainant had demanded for repayment of the entire principal amount with interest. As such the JUDGEMENT 38 C.C.18840/2016 accused had given cheque for Rs.25,00,000/-. Mere the fact that the said cheque is for Rs.25,00,000/-, it cannot be said that the said cheque is not issued towards repayment of the loan amount, on the other hand it is shows that as the complainant was expecting his money back from the accused, hence he had accepted the cheque given by the accused, though it is for Rs.25,00,000/-. Hence, mere the fact that there was some variations with regard to the interest, it cannot be said that the disputed cheque is not towards the discharge of the loan amount with interest as claimed by the complainant. Even otherwise, the person who was under expectation of his money back from the person who committed default in paying interest as agreed, cannot be so meticulous in calculating the interest and to collect the cheque. On the other hand, as the accused had given the cheque for Rs.25,00,000/-, though for the lesser amount i.e., not included up to date interest as agreed, the complainant had accepted it. Hence, mere the fact that the disputed cheque is for lesser amount of Rs.25,00,000/- against to the amount of Rs.28,25,000/-, it cannot be said that there JUDGEMENT 39 C.C.18840/2016 was no loan transaction all and the disputed cheque was not given infavour of the accused towards discharge of the debt.
44. Thus, the say of the accused that there was no existence of loan transaction in between himself and the complainant and the amount of Rs.20,00,000/- allegedly paid by the complainant in his favour was not towards any loan transaction at all etc., is not at all accepted and convincing one.
45. On the other hand, it shows that the complainant has proved the fact of lending loan of Rs.20,00,000/- infavour of the accused by way of cheque and it was acknowledged by the accused in getting encashment of the same.
46. Further, as aforesaid, having admitted of receipt of the amount of Rs.20,00,000/- by the accused by way of account payee cheque from the complainant, burden is on the accused to prove the fact that it is not in respect to the JUDGEMENT 40 C.C.18840/2016 alleged loan transaction, but it was towards land dealing transaction by placing any cogent and convincing evidence.
47. Because, it is the specific defence of the accused that the complainant was intend to purchase the land to an extent of 19 guntas in Sy. No.137, 138 and 139 of Bellandur village, Sringeri Taluk from one Sheshagiri Bhat for total sale consideration of Rs.1 crore and odd and he has to pay advance amount of Rs.40,00,000/-. Hence, he had induced the accused to invest Rs.20,00,000/- as advance stating that he would fetch profits and also stated that he is also advancing a sum of Rs.20,00,000/- and on such enticement, the accused by agreeing to invest the amount of Rs.20,00,000/-, entered into sale agreement with the Sheshagiri Bhat on behalf of the complainant, because, of the reason that the complainant was in service and not able to entered into such sale agreement directly. Hence, the complainant had paid the said sum of Rs.20,00,000/- by way of cheque infavour of the accused and it was encashed by the him and paid the same infavour of Sheshagiri Bhat as advance sale consideration JUDGEMENT 41 C.C.18840/2016 by entering into sale agreement to purchase the land to an extent of 19 guntas under partnership. As the accused had entered into such sale agreement in his name at the instance of the complainant and as he had received a sum of Rs.20,00,000/- by way of cheque, the complainant had obtained his two signed blank cheques and his two signatures on blank pro-note and consideration receipt and also on stamp paper. Hence, it is the defence of the accused that the transaction existed in between him and the complainant was land dealing transaction and not towards loan transaction by placing cogent and convincing evidence.
48. But to prove the said fact, the accused except his oral assertion and denial, not produced any material evidence before this court nor elicited any material admission from the mouth of PW.1, as the PW.1 denied each and every suggestion of the accused made to him in that regard as false.
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49. If really was there any such sale agreement transaction in between the complainant and the accused and the accused had received the said sum of Rs.20,00,000/- from the complainant and had entered into sale agreement with the said Sheshagiri Bhat on behalf of the complainant etc., then certainly he would have proved the same by producing any material evidence before this court. That means to say that he would have proved the alleged sale agreement transaction by examining necessary material witness in the presence of whom the alleged sale agreement transaction had been taken place. But the accused has not produced any such evidence before this court nor stated the fact, when such agreement had been taken place in between himself and the said Sheshagiri Bhat on behalf of the complainant at his instance and the persons who were present at the time of alleged sale agreement transaction.
50. No doubt, the accused made suggestion to PW.1 during cross-examination that the alleged payment of Rs.20,00,000/- by him infavour of the accused was JUDGEMENT 43 C.C.18840/2016 towards land dealing transaction by suggesting the suggestion that he had an intention to purchase the land to an extent of 19 guntas of land in Sy. No.137, 138 and 139 of Bellandur village, Sringeri Taluk from one Sheshagiri Bhat for sale consideration of Rs.1 crore and on his inducement, the accused had agreed to invest Rs.20,00,000/- as advance sale consideration along with this complainant and had agreed to enter into the sale agreement with the said Sheshagiri Bhat on his behalf and on behalf of the complainant as the complainant was not in a position to enter into sale agreement directly as he was in Judicial Service and thus he had entered into such sale agreement in his name at the instance of the complainant and paid the amount of Rs.20,00,000/- as advance sale consideration of which the complainant allegedly paid in his favour by way of cheque etc. But to prove this fact, the accused not produced any material evidence before this court.
51. If really was there any such sale agreement transaction in between the accused and Sheshagiri Bhat JUDGEMENT 44 C.C.18840/2016 and the accused had entered into sale agreement with the Sheshagiri Bhat on behalf of the complainant also in the name of the accused and made payment of Rs.20,00,000/- by cash, then certainly he would have proved the said fact by examining the necessary witness i.e., Sheshagiri Bhat the owner of the alleged property with whom the accused had allegedly entered into sale agreement by calling him as his witness. But no such attempt has been made by the accused. This creates doubt.
52. Because, as per the defence of the accused, he had entered into such sale agreement with Sheshagiri Bhat on behalf of the complainant at his instance and paid a sum of Rs.40,00,000/- as advance, but it is denied by the complainant. When such being the case, burden is on the complainant to prove the said fact of sale agreement by examining the person with whom he allegedly entered into the sale agreement on behalf of the complainant i.e., Sheshagiri Bhat before this court.
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53. Though accused had taken hand summons to the said person Sheshagiri Bhat to examine him before this court etc. But on perusal of the entire materials on record, it shows that the said hand summons was returned and there was no any evidence with regard to the attempt of the accused to serve the said summon on the said Sheshagiri Bhat. On the other hand, the accused has filed memo simply stating that due to unavoidable circumstance, he could not serve the said summons to the said witness Sheshagiri Bhat.
54. Since there was no any attempt by the accused to serve the hand summon on the said witness with an intention to examine the said person Sheshagiri Bhat before this court, this court was pleased to recall the stage. The said order was not questioned by the accused. On the other hand, the learned advocate for the accused during the course of argument, made an attempt to say that the person Sheshagiri Bhat is sufficiently aged and suffering from old age decease and as such he could not examine the said person before this court by calling him as his witness JUDGEMENT 46 C.C.18840/2016 etc. But the explanation offered by the accused for non- examination of the said material witness i.e., Sheshagiri Bhat is not acceptable and convincing. Because, the complainant had denied such sale agreement transaction in between the accused and the Sheshagiri Bhat on his behalf. When such being the case, if really there was any such sale agreement transaction in between himself and the said Sheshagiri Bhat and he had entered into such sale agreement on behalf of the complainant at his instance and he had paid the alleged amount of Rs.20,00,000/- by cash as advance amount to the said Sheshagiri Bhat of which it was paid by the complainant through cheque etc., then certainly he would have examined the said witness by opting other process of law. That means to say that the course was open for the accused to examine the said person Sheshagiri Bhat by taking commission by filing necessary application. But no such attempt has been made by the accused in that regard. This creates doubt. Hence, the explanation offered by the accused for non-examination of the material evidence i.e., with whom the accused had allegedly entered in to sale agreement on behalf of the JUDGEMENT 47 C.C.18840/2016 complainant towards purchase of the agricultural land and about the alleged payment of Rs.20,00,000/- on behalf of the complainant by cash is not acceptable and convincing one.
55. Further the accused not proved the fact of payment of Rs.20,00,000/- as advance on behalf of the complainant to the said Sheshagiri Bhat. Because, it is the specific defence of the accused that the amount of Rs.20,00,000/- allegedly received by the accused from the complainant through account payee cheque was not towards loan transaction, but towards sale agreement transaction and the complainant had paid such amount to the accused to pay the said amount as advance sale consideration infavour of the one Sheshagiri Bhat by entering into the sale agreement on his behalf with the said Sheshagiri Bhat and accordingly he had paid a sum of Rs.20,00,000/- infavour of the said Sheshagiri Bhat by way of cash. But to prove the said fact of payment of Rs.20,00,000/- towards advance sale consideration by way of cash infavour of the Sheshagiri Bhat, the accused not produced any iota of JUDGEMENT 48 C.C.18840/2016 evidence before this court. On the other hand, the say of the accused with regard to the payment of such sale consideration amount by cash infavour of the said Sheshagiri Bhat under the alleged agreement itself doubtful.
56. Because, at one stretch, the accused says that he has paid a sum of Rs.20,00,000/- allegedly paid by the complainant towards advance sale consideration infavour of the Sheshagiri Bhat under the sale agreement by way of cash. But during his evidence, he deposed about the payment of the alleged advance amount of Rs.20,00,000/- infavour of the said Sheshagiri Bhat on various dates i.e., a sum of Rs.3,00,000/- on 18-07-2013, on 18-07-2013 again he had paid a sum of Rs.1,12,632/- and sum of Rs.2,20,000/- on 20-07-2013 and sum of Rs.2,75,000/- on 22-07-2017 and sum of Rs.70,000/- on 24-07-2013 and on 27-07-2013 he has paid a sum of Rs.47,000/- and Rs.50,000/- on 03-08-2013 and Rs.3,00,000/- on 06-08- 2013 and sum of Rs.10,000/- on 08-08-2013 and sum of Rs.50,000/- on 17-08-2013. Thus according to the JUDGEMENT 49 C.C.18840/2016 accused, he has paid a sum of Rs.20,00,000/- infavour of the Sheshagiri Bhat as advance sale consideration amount on behalf of the complainant by entering into the alleged sale agreement. This creates doubt.
57. Further the accused taken up the defence that he has paid alleged Rs.20,00,000/- to the said Sheshagiri Bhat as advance sale consideration part by part on different dates at the instance of the complainant etc., but to substantiate the fact of payment of the amount part by part as stated by him during his evidence and not produced any iota of evidence. If really he has paid such amount of Rs.20,00,000/- as advance sale consideration on behalf of the complainant at his say in relation to the purchase of property, then certainly he would have obtained any receipts from the said Sheshagiri Bhat on the dates in which he has paid the amount. But as per the evidence of DW.1, though there was no impediment for him to obtain such receipts from the said Sheshagiri Bhat, but he has not obtained any documents. This creates doubt with regard to the say of the accused about payment made by JUDGEMENT 50 C.C.18840/2016 him to the said Sheshagiri Bhat towards advance sale consideration on behalf of the complainant.
58. Though at one stretch, the accused made an attempt to say that there is entries in his bank account with regard to the said payments to prove the said fact, though he has produced documents like bank statement extract as per Ex.D1. But on perusal of the said statement, though it shows that the fact of withdrawal of the amount by cash i.e., by self-withdrawal, ATM withdrawal etc., on several dates, but there is no any evidence to show that those alleged withdrawals of the amount from the bank account of the accused was paid to the said Sheshagiri Bhat towards advance sale consideration at the say of the complainant and he has not proved the said fact of payment of the amount to the said Sheshagiri Bhat by examining the said material witness Sheshagiri Bhat before this court by confronting the Ex.D1 document.
59. Hence, absolutely there is no any material evidence to show either about the fact of entering into the sale JUDGEMENT 51 C.C.18840/2016 agreement by the accused with the Sheshagiri Bhat on behalf of the complainant at his instance to purchase the land or about the fact of payment of the alleged advance amount to the said Sheshagiri Bhat as advance sale consideration on the dates in which he allegedly paid to the said Sheshagiri Bhat under alleged agreement.
60. If really was there any such sale agreement in between the accused and Sheshagiri Bhat and he had entered into such sale agreement on behalf of the complainant at the instance of the complainant and it was reduced into writings etc., then certainly the accused would have proved the same by producing the alleged sale agreement before this court or by examining the said material witness Sheshagiri Bhat with whom the alleged sale agreement has been entered into or by examining the person in whose presence such sale agreement has been taken place. But no such document has been produced before this court nor proved the said fact of the execution of the sale agreement by examining the material witness Sheshagiri Bhat before this court. On the other hand, the JUDGEMENT 52 C.C.18840/2016 accused made an attempt to say that the said sale agreement was un-registered document and the said document was destroyed by the complainant only soon after receipt of the amount etc., and hence he could not produce the said sale agreement before this court. But the said evidence itself creates a kind of confusion and doubt.
61. Because, as per the evidence of the accused, the said sale agreement transaction was not materialized as there was some dispute pertaining to the property which was the subject matter of the sale agreement. Hence, the said sale transaction was not materialized etc.
62. If the said defence of the accused was true, then it is for the accused to say who has repaid the alleged advance amount of Rs.20,00,000/- to the complainant, but the accused has not stated about the fact of payment of such amount by the Sheshagiri Bhat infavour of the complainant. Though at one stretch the accused has stated that it was informed to him with regard to the payment of the amount of Rs.20,00,000/- by the Sheshagiri Bhat JUDGEMENT 53 C.C.18840/2016 infavour of the complainant which allegedly paid as advance sale consideration to the alleged sale agreement and hence the complainant has torned of alleged sale agreement. If that was so, then what about the investment of Rs.20,00,000/- by the accused in the alleged sale transaction.
63. Because, as per the defence of the accused, he also had invested a sum of Rs.20,00,000/- along with the complainant at the say of the complainant that it would fetch profit and thus he totally paid a sum of Rs.20,00,000/- as advance sale consideration infavour of the Sheshagiri Bhat by entering into the sale agreement on behalf of the complainant. If the said sale transaction was not materialized, then what about the amount of Rs.20,00,000/- allegedly invested by the accused. When the Sheshagiri Bhat has repaid the amount of Rs.20,00,000/- infavour of the complainant. As per the say of the accused, then what about the alleged investment amount by the accused, whether it was repaid the said Sheshagiri Bhat or not. But no such evidence is forth JUDGEMENT 54 C.C.18840/2016 coming on reading the evidence of the accused. This creates doubt. Because, only on such repayment of the alleged sale consideration amount infavour of the complainant and also to the accused, the said sale agreement would be destroyed. But there is no any evidence with regard to the repayment of the alleged advance amount paid by the accused to the said Sheshagiri Bhat or there is no any evidence with regard to the repayment of the alleged advance amount of Rs.20,00,000/- in his favour by the said Sheshagiri Bhat for the reason that the said sale agreement transaction was not materialized due to some disputes. When such being the case, how the complainant could destroy the alleged sale agreement as contended by the accused. This creates doubt with regard to the very existence of sale agreement in between the accused and it was entered into by the accused on behalf of the complainant as per his say. Hence, the reason, assigned by the accused for non- production of the alleged sale agreement before this court is not acceptable and convincing one. Even otherwise, the accused has not proved the fact of execution of such sale JUDGEMENT 55 C.C.18840/2016 agreement between himself and the said Sheshagiri Bhat and about the fact of destroy of the said sale agreement by this complainant.
64. To prove the fact that the alleged sale agreement in between the accused and the said Sheshagiri Bhat i.e., about the fact of entering into sale agreement with the said Sheshagiri Bhat on behalf of the complainant and about the fact of execution of sale agreement, the accused has examined one witness before this court as per DW.2, contending that the said person was very much present at the time of alleged execution of sale agreement and he was one of the witness to the said document etc. Though DW.2 has deposed in his evidence about the fact of sale agreement transaction in between the accused and the Sheshagiri Bhat stating that at that time he along with one Gopalakrishna Bhat S/o. Sheshagiri Bhat was also present and they have affixed their signatures to the alleged sale agreement etc., and deposed about the fact of payment of Rs.2,50,000/- by the accused infavour of Sheshagiri Bhat as advance sale consideration amount.
JUDGEMENT 56 C.C.18840/2016
65. But on careful reading the evidence of DW.2, it creates doubt about the presence of the said witness in the alleged sale agreement transaction. If really he was present in the alleged sale agreement transaction and at the time of execution of the sale agreement was executed in between the complainant and the accused and it was witnessed by the DW.2 etc., then certainly the said witness would have aware about the sale consideration fixed for purchase of the property by this complainant. Because, according to the defence of the accused, the complainant had informed him with regard to his intention to purchase the land to an extent of 19 gutnas in Sy. No.137, 138 and 139 of Bellandur village, Sringeri Taluk from one Sheshagiri Bhat for sale consideration of Rs.1 crore and odd. But as per the evidence of DW.2, the sale consideration was fixed for the said property was Rs.20,00,000/-. This creates doubt about the presence of the DW.2 in the alleged sale agreement transaction. DW.2 further deposed that the accused has paid remaining amount to the said Sheshagiri Bhat within two months. But in his cross-examination, he clearly deposed that he knows about the fact of payment of JUDGEMENT 57 C.C.18840/2016 Rs.20,00,000/- at one single count, but stated that he has not seen the fact of such payment of Rs.20,00,000/- by the accused infavour of the Sheshagiri Bhat. On the other hand, he stated about the fact that he was informed him about the same by the accused. This creates doubt.
66. Further as per the evidence of DW.2, the alleged sale agreement was executed by the said Sheshagiri Bhat infavour of the accused and at that time one Gopalakrishna Bhat S/o. Sheshagiri Bhat was also present and he had affixed his signature. But presence of the said witness Gopalakrishna Bhat was not stated by this accused. Even otherwise, the presence of the alleged witness DW.2 in the alleged sale agreement was also doubtful. Because, the accused nowhere suggested the PW.1 during his cross-examination with regard to the presence of the DW.2 in the alleged sale agreement transaction. If really was there any such sale agreement in between himself and the accused and it was witnessed by the DW.2 and other person to whom DW.2 referred in his evidence, then certainly the accused would have suggested JUDGEMENT 58 C.C.18840/2016 the names of the person who allegedly present at the time of execution of said sale agreement. But no such suggestion have been put to PW.1 during the course of cross-examination and he has not taken up any names of the person who allegedly witnessed the said transaction. On the other hand, all of a sudden, the accused has examined DW.2 before this court contending that the said person had witnessed the alleged sale agreement and he had affixed his signature. But to substantiate the said fact, no any material evidence placed before this court, since the evidence of DW.2 does not supported by any documents and so also the fact that his evidence does not inspire confidence to come to conclusion with regard to the execution of sale agreement in between the accused and the said Sheshagiri Bhat.
67. Because, there is inconsistency and contradictions in the evidence of DW.1 and DW.2 with regard to the presence of DW.2 at the seen of he alleged sale agreement transaction. Hence, the evidence of DW.2 does not helps the accused in proving the fact that the alleged amount of JUDGEMENT 59 C.C.18840/2016 Rs.20,00,000/- paid by the complainant was towards alleged sale agreement i.e., land dealing transaction and not towards the loan transaction, as contended by him.
68. Further, the accused not chosen to examine the son of the Sheshagiri Bhat namely Gopalakrishna Bhat to substantiate the fact of execution of sale agreement in between himself and the said Sheshagiri Bhat with regard to the purchase of land by the accused in his name.
69. Further there is consistency in the defence taken by the accused. Because, at one stretch he says that he had entered into the sale agreement with the said Sheshagiri Bhat on behalf of the complainant at his say, as the complainant was not able to entered into sale agreement transaction as he was in Judicial Service. Hence, the said sale agreement had been entered into in his name with the said Sheshagiri Bhat and he has paid advance sale consideration amount of Rs.20,00,000/- on behalf of the complainant. But at another stretch, he says that on inducement of the complainant, he also had invested JUDGEMENT 60 C.C.18840/2016 Rs.20,00,000/- in the alleged sale consideration transaction as it would fetch profits and he had paid a sum of Rs.20,00,000/- as advance sale consideration along with the complainant in order to purchase the lands under partnership. Thus, there is inconsistency and contradictions in the defence taken by the accused in establishing the fact of payment of Rs.20,00,000/- by the complainant infavour of the accused under cheque towards alleged sale consideration amount. Hence, the defence taken by the accused is not acceptable and convincing one. On the other hand it creates doubt.
70. Further as per the version of the accused that he had entered into the sale agreement transaction only at the instance of the complainant on his behalf, since the accused was in Judicial Service and was working as Judicial Officer and hence he could not able to entered into sale agreement transaction directly. Hence, as a nominal person, he had entered into such sale agreement with the said Sheshagiri Bhat on behalf of the complainant etc. But, it was denied by the complainant stating that as on the JUDGEMENT 61 C.C.18840/2016 date of alleged sale agreement transaction, he was no more Judicial Officer. Thus, it is the contention of the complainant that there was no any such sale agreement transaction in between himself and the said Sheshagiri Bhat through this accused and there was no need for him to purchase the property and hence contended that the alleged sale agreement transaction is created story of the accused just to escape from the liability of repayment of the debt. On the other hand, the transaction allegedly existence in between himself and the accused was purely loan transaction.
71. To substantiate the fact that as on the date of alleged sale agreement, he was no more Judicial Officer, the complainant has produced documents like Ex.P10 Notification issued by the Registrar of Hon'ble High Court of Karnataka. On perusal of the same, it reflects the fact that the complainant who was working as Senior Civil Judge was compulsorily retired from the service with effect from 01-10-2012, the alleged sale agreement transaction was on 12-07-2013. This clearly discloses the fact that as JUDGEMENT 62 C.C.18840/2016 on the date of alleged sale agreement, the complainant was no more Judicial Officer. When such being the case, if at all was there any intention to purchase the land by this complainant, then he only would have entered into said sale agreement transaction with the said Sheshagiri Bhat and there was no need for him to take assistance of this accused to purchase the land through Sheshagiri Bhat by getting sale agreement in the name of the accused and there was no need for him to pay such amount of Rs.20,00,000/- as advance sale consideration amount through the accused. This evidence was not falsified by the accused by paying the same to the accused by way of account payee cheque.
72. This clearly goes to show that the accused has taken vague defence of sale agreement transaction just to escape from the liability of repayment of the said debt.
73. Hence, with all these reason, this court is of the opinion that the accused utterly failed to rove the fact that the transaction allegedly existed in between himself and JUDGEMENT 63 C.C.18840/2016 the complainant was land dealing transaction and the complainant had given Rs.20,00,000/- in his favour through cheque in order to advance the same with Sheshagiri Bhat on behalf of the complainant towards purchase of the land in Sy. No.137, 138 and 139 to an extent of 19 guntas of Bellandur village, Sringeri Taluk.
74. On the other hand, the complainant has proved the fact that the alleged monitory transaction existed in between himself and the accused is nothing but loan transaction and he has proved the same by producing necessary evidence before this court with regard to the payment of the interest by the accused and his family members to the alleged loan of Rs.20,00,000/-.
75. Though at one stretch, the accused made an attempt to say that there was no any loan transaction in between himself and the complainant and he never borrowed any loan of Rs.20,00,000/- from the complainant and he never issued this disputed cheque infavour of the complainant towards discharge of any debt or liability. On the other JUDGEMENT 64 C.C.18840/2016 hand, the amount allegedly paid by the complainant in his favour through cheque towards land dealing transaction in order to enter into the sale agreement with the Sheshagiri Bhat on behalf of the complainant, since he had entered into sale agreement with the Sheshagiri Bhat in his name on behalf of the complainant and as he has received the amount of Rs.20,00,000/- by the complainant through cheque, the complainant had obtained his two signed cheques and pro-note as security. If really the accused has given the disputed cheque and other documents infavour of the complainant as security in connection to the alleged land dealing transaction and the said sale agreement was not materialized, then certainly after cancellation of said sale agreement. On receipt of the alleged advance amount of Rs.20,00,000/-, he would have made any attempt to take back his security documents i.e., cheque, pro-note and other documents from the possession of the complainant by taking any legal steps of writing letter to the complainant with prayer to return his security documents i.e., cheque and other documents by narrating the fact of cancellation of the alleged sale agreement. If the JUDGEMENT 65 C.C.18840/2016 complainant has not obliged for his request and return the signed blank cheque and pro-note and other security documents, then certainly he would have caused legal notice to the complainant demanding him to return back his signed blank cheque, pro-note and stamp paper allegedly given as security by narrating the circumstance in which he had given those documents. If the complainant has not obliged for this demand, then certainly he would have lodge police complaint against the complainant for non-return of his security documents inspite of cancellation of the said transaction or atleaste would have given stop payment instruction to the bank authorities requesting them not to honour the cheque by narrating the circumstance of furnishing signed blank cheque as security infavour of the complainant in connection to the land dealing transaction. But no such overtact is forth coming on the conduct of the accused.
76. Unless the accused has proved that he has acted as normal prudent man, he could not rebut the presumption which arose in favour of the complainant under JUDGEMENT 66 C.C.18840/2016 Section.139 of Negotiable Instruments Act. Because, no prudent man will remain silent without taking any legal steps to collect his security documents like signed blank cheques and other documents, if really he had given the same infavour of any person in connection to any transaction even after completion of the same.
77. Hence, the defence taken by the accused that the alleged payment of Rs.20,00,000/- by the accused in his favour was towards land dealing transaction and not towards loan transaction and he has not given this disputed cheque infavour of the complainant towards discharge of any debt or liability is not acceptable one. Further he also failed to prove the circumstance in which the disputed cheque and other documents went to the hands of the complainant. Hence, the defence raised by the accused is not probable one to dispel the burden which arose infavour of the complainant.
78. Further if the defence of the accused was true that he never borrowed any loan fro the complainant to the tune of JUDGEMENT 67 C.C.18840/2016 Rs.20,00,000/- and he never issued this disputed cheque infavour of the complainant towards discharge of any debt or liability, on the other hand he had given this disputed cheque and other signed blank documents as security in connection to the land dealing transaction etc., and the complainant has misused his security documents and made false claim against him etc., then certainly he would have taken such defence on earliest occasion by causing necessary reply to the demand notice of the complainant issued against him on account of dishonour of Ex.P1 cheque.
79. Because, it is the specific case of the complainant that soon after dishonour of the cheque, he caused demand notice to the accused by appraising the fact of dishonour of the cheque and demanded him to pay the amount covered under the cheque. The notice sent against the accused by RPAD and it was duly served on him, despite of the same the accused not complied with demands of notice.
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80. To prove the said fact, the complainant has produced documents like copy of legal notice, postal receipt and postal acknowledgment card etc., which testifies the fact that the complainant has caused demand notice against the accused on account of dishonour of the cheque and it was duly served on him.
81. The fact of service of demand notice, though not denied by the accused, but he has denied with regard to the post mentioned in the address as it is not Menase post, on the other hand it is masige Post and he had admitted rest of the address is his correct address. Further as per Ex.P5, the notice was duly served on the accused and this fact is not denied by the accused, since he nowhere denied the service of notice to the address mentioned in Ex.P5 postal acknowledgement card, so also in Ex.P3 demand notice. This clearly goes to show that the notice was duly served on the accused. If the defence of the accused was true, then certainly, he would have taken his defence at earliest by causing necessary reply to the demand notice issued by the complainant against him on account of JUDGEMENT 69 C.C.18840/2016 dishonour of the cheque. But the accused not made any attempt to cause necessary reply to the demand notice of the complainant. Hence, whatever the defence taken by the accused during the course of evidence is nothing but after thought.
82. The very fact that the accused failed to reply to the legal notice, leads to an inference that the accused has admitted the allegation made against him in the said demand notice. If the complainant has made false claim in respect to his cheque, then he would have rebut the same by sending suitable reply. But as stated above, the accused failed to cause any reply to the demand notice by taking his defence as taken by him during the course of evidence. Thus, she failed to rebut the presumption which arose infavour of the complainant.
83. Hence, the defence taken by the accused is not acceptable and convincing one to dispel the burden which arose infavour of the complainant.
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84. Hence, with all this reason this court is of the opinion that though accused made an attempt rebut the presumption which arose in favour of the complainant under Section.139 Negotiable Instruments Act. by taking defence that he never borrowed any loan of Rs.20,00,000/- from the complainant and he never issued this disputed cheque infavour of the complainant towards discharge of the alleged loan of Rs.20,00,000/-, on the other hand the transaction existed in between himself and the complainant was land dealing transaction and the amount of Rs.20,00,000/- allegedly paid by the complainant through account payee cheque was towards payment of the advance amount to the owner of the land namely Sheshagiri Bhat from whom the complainant intended to purchase the land by entering into sale agreement through this accused on his behalf and as the accused had received a sum of Rs.20,00,000/- from the complainant and as the alleged sale agreement was entered into between himself and the Sheshagiri Bhat in his name at the instance of the complainant. The complainant had obtained his signed blank cheque and other documents in blank as security JUDGEMENT 71 C.C.18840/2016 and despite of clearance of the said sale agreement transaction, the complainant misused his cheque and filed this false complaint against him, but he has not proved the same by placing any cogent and convincing evidence.
85. Hence onus not shifted on the shoulder of the complainant; on the other hand it rests with the accused only. Inspite of the same, the complainant has proved the fact that there was existence of transaction and issuance of disputed cheque infavour of the complainant towards repayment of the loan amount. The records speaks that the disputed cheque was dishonoured on its presentation for encashment by the complainant through his banker and despite of issuance of demand notice against the accused and its due service on the accused, he did not complied with demands of notice by paying the amount covered under the cheques. Hence, he maintained this complaint in time.
86. Hence, the complainant has proved all the essential ingredients of Section.138 of Negotiable Instruments Act to JUDGEMENT 72 C.C.18840/2016 bring home the guilt of the accused under Section.138 of Negotiable Instruments Act. Hence, I answered Point No.1 in the Affirmative.
87. POINT NO.2: In view of my discussions on Point No.1 as above, I proceed to pass the following:
ORDER Acting under Section.255(2) Cr.P.C., the accused is convicted for the offence punishable under Section.138 of Negotiable Instruments Act.
The accused shall pay a fine of Rs.30,00,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for six months.
Out of the said amount, accused shall be paid Rs.29,90,000/- to the complainant as compensation as provided under JUDGEMENT 73 C.C.18840/2016 Section.357 of Cr.P.C. and Rs.10,000/- shall remitted to the state as fine.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 20th day of April-2018.) (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : K.M. Gangadhar Documents marked on behalf of the complainant:
Ex.P1 : Cheque Ex.P2 : Endorsement Ex.P3 : Legal Notice Ex.P4 : Postal receipt Ex.P5 : Postal acknowledgment card Ex.P6 : Complaint Ex.P7 : Bank Passbook Ex.P8 : Letter given by the Bank Ex.P9 : Visiting Card Ex.P10 : Notification
Witnesses examined on behalf of the accused:
DW.1 : Anantha Krishna. S.S.
DW.2 : Krishnappa
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Documents marked on behalf of the accused:
Ex.D1 : Statement of Account
Ex.D2(6) : RTC Extracts
Ex.D3 : C/c of Order sheet in OS. 35/2015
Ex.D4 : C/c of Complaint in OS. 35/2015
Ex.D5 : C/c of Written Argument in OS.35/15
Ex.D6 : Agreement
Ex.D7(8) : RTC Extracts
(C.G. Vishalakshi)
XIII A.C.M.M., Bengaluru.
* Accused copy furnished.