Bangalore District Court
Approached The Complainant To Help vs In The Month Of March 2013. The ... on 14 September, 2021
IN THE COURT OF THE V ADDL. SMALL CAUSES JUDGE & 24th
ADDL. CHIEF METROPOLITAN MAGISTRATE, Court of Small
Causes, Mayo Hall Unit, Bangalore(SCCH20)
Present:Smt.Sharmila C.S. BA.L., LL.M
V Addl. Small Causes Judge,
& XXIV A.C.M.M.
Dated this the 14th day of September 2021
C.C.No.53253/2017
1. Sl.No. of the case C.C. No.53253/2017
2. The date of Institution 15.04.2017
3. The date of commencement
of the evidence 18.07.2018
4. Name of the Complainant : Sri.Shivanand K Khot,
S/o Kaka Sab,
Aged about 30 years,
Residing at No.12,
Rajarajeshwari Nilya,
Prakash Layout, OppSapthagiri
Convention Hall, Immadihalli
main road, Whitefield,
Bangalore - 560043
(Represented by Sri.M.R.Muralidhara, Advocate)
5. Name of the Accused : Ramesh M Chikaraddi
S/o Manohar,
Aged about 35 years,
R/at Sarawad post,
Vijayapura Taluk,
Vijayapura District586125
Also working at
SCCH-20. 2 CC. No.53253/2017
Ramesh M Chikaraddi
S/o Manohar,
Aged about 35 years,
ID No.2519,
T.E Connectivity India Pvt Ltd.,
"T.E Park", No.22
Doddanekkundi Iind phase
Industrial Area,
Whitefield Road,
Bangalore - 560048
(Represented by Sri.Prasanna., Advocate)
6. The offence complained of or proved: Under Sec.138 of N.I. Act.
7. Plea of the accused on his examination: Pleaded not guilty
8. Final Order Accused is acquitted
9. Date of such order 14.09.2021
JUDGMENT
This complaint is filed seeking punishment of the accused for the offence punishable Under section 138 of Negotiable instruments Act 1881.
2. The case of the complainant in brief is that:
The accused being the relative and friend of the complainant, approached the complainant to help financially for an amount of Rs.10,00,000/ and SCCH-20. 3 CC. No.53253/2017 complainant paid an amount of Rs.6,00,000/ to the accused in the month of March 2013. The complainant approached the accused to return the amount of Rs.6,00,000/, in the year March 2017, when the accused issued an account payee cheque bearing No.356349, dated 13.03.2017 for an amount of Rs.4,00,000/ drawn on SBM, Hoody branch, and on 13.03.2017 the complainant presented the said cheque, the cheque was returned with bank endorsement "Funds Insufficient", dated 13.03.2017. That in spite of receipt of the legal notice dated 23.03.2017, the accused failed to repay the said amount and hence the present complaint.
3. The accused appeared through his counsel and was enlarged on bail. Substance of accusation read over to the accused and statement under section 313 of Cr.P.C was also recorded who pleaded not guilty and claimed to be tried, The complainant examined himself as PW1 and got marked 8 documents on its behalf.
4. Heard from the counsel for the complainant and SCCH-20. 4 CC. No.53253/2017 the accused and perused the materials on record.
5. The following points arise for my determination:
1. Whether the complainant has made out sufficient grounds to punish the accused for the offence punishable under Section 138 of N.I.Act?
2. What order?
6. My answers to the above points are as follows:
Point No.1: In the negtive.
Point No.2: As per the final order for the following:
REASONS
7. POINT NO.1: It is the case of the complainant that the complainant and accused are relatives and good friends with each other and both are working at T.E.connectivity India Pvt Ltd., Doddanekkundi, whitefield road, Bangalore. The accused approached the complainant to help financially for an amount of Rs.10,00,000/ and complainant paid an amount of Rs.6,00,000/ to the accused in the month of March 2013 and promised to give 06 guntas of land in the SCCH-20. 5 CC. No.53253/2017 developed layout or would return Rs.6,00,000/ with profit, within 3 years. In the month of January 2017, the complainant had approached the accused to return the amount of Rs.6,00,000/. Then the accused issued an account payee cheque bearing No.356349, dated 13.03.2017 for an amount of Rs.4,00,000/ drawn on SBM, Hoody branch, Bengaluru. That on 13.03.2017, the complainant presented the said cheque to his banker State Bank of Mysore, which the cheque was returned with bank endorsement "Funds Insufficient", dated 13.03.2017. That the complainant though issued the legal notice dated 22.03.2017 and served to the accused, the accused neither repaid the said amount nor replied to the said notice. Hence the present complaint.
8. In order to prove his case, the complainant was examined as PW1, who has filed his affidavit in lieu of sworn statement, which came to be considered as examination in chief in view of the direction in the Indian Bank Association Case. Ex.P. 1 to P.8 were marked on his SCCH-20. 6 CC. No.53253/2017 behalf. Ex.P.1 is the cheque dated 13.03.2017 for a sum of Rs.4,00,000/ drawn in favour of the complainant. Exh.P.3 is the endorsement issued by the State Bank of Mysore, notifying that the said cheque was returned with the endorsement "Funds insufficient and is dated 13.03.2017. The Ex.P.4 is the copy of the legal notice dated 22.03.2017 issued to the accused from the counsel for the complainant, informing about the dishonor and demanding to pay the amount within 15 days from the date of service of notice. The Ex.P.5 and Ex.P.6 are the postal receipts and Ex.P.7 and Ex.P.8 are the returned postal covers, which depict that the notice sent by the complainant was returned. Thus the complainant has complied the requirements as enumerated under section 138 of the NI Act.
9. There is a presumption under section 139 of the NI Act that the cheque was issued for discharging of an antecedent liability. But this is a rebuttable presumption.
SCCH-20. 7 CC. No.53253/2017 Thus, it is to be seen now that whether the accused rebuts the said presumption.
10. It is the defence of the accused that there was no transaction in between the complainant and the accused and that the complainant had no capacity to pay such a huge amount to the accused. The accused working in the same cadre as of the complainant did not require such a huge amount as his expenses. That there are technical defects in the complaint for non mentioning date and the proper reasons. That the if the same is believed also, it is time barred debt. Thus has sought for dismissal of the complainant.
11. In order to substantiate the same the complainant was cross examined by the counsel for the accused. The complainant admits that the accused is his colleague and that they are working together for past 13 years in the same office. That he is earning salary of Rs.35,000/ and he can save Rs.10,000/ at the end of SCCH-20. 8 CC. No.53253/2017 the month out of the said salary. That he does not know as to the date and the time when the accused demanded the money from him. But submits that the transaction is pertaining to the year 2013. The same has also been admitted by the complainant in the complaint filed by him. That the transaction was in the year 2013. It is also submitted that the accused did not turn up towards the complainant even after 3 years and finally in the month of June 2016, the complainant demanded the accused to handover 6 guntas of land, which the accused refused to give. Thus the complainant has submitted that in the month of January 2017, the accused issued an account payee cheque i.e., Ex.P.1.
12. As per the complainant, the complainant advanced an amount of Rs.6,00,000/ in the month of March 2013 Near tea stall, in the presence of one Sri.Manjunatha, Shivananda. Such witneses are not examined before this court. It is also elicited that the complainant had filed another case against same SCCH-20. 9 CC. No.53253/2017 accused with respect to the same transaction, but a different cheque in CC No.53265/2017, which came to be disposed off by Hon'ble 34th ACMM court, Bangalore. The counsel submitted that the same deposition as in the said case was adopted in the present case by both the parties. However the order passed in the said case does not effect to the instant case on hand.
13. Now the evidence with regard to the financial capacity of the complainant needs to be considered, which is the 1st defence of the accused. As per the complainant, the accused is working along with him as of now. But during the time of the demand of the loan amount, the accused was a developer and has demanded the amount for his business. As to the question of payment of Rs.6,00,000/, the complainant submits that he received a loan amount of Rs. 3,00,000/ from other persons and paid Rs.3,00,000/ from his personal account. But no document is produced in this regard. Neither the witness who are alleged to be present at the SCCH-20. 10 CC. No.53253/2017 time of said payment were examined before this court.
14. The question of financial capacity depends upon the individuality of the persons. The two persons earning the same salary may not have the same expenses when compared with each other. Therefore the savings depends upon the expenses the earner spent for his family and personal expenses during his lifetime. Therefore the accused working with the complainant and earning same salary would not effect the in capacity of the accused to demand the amount from the complainant. But during the time of alleged transaction as stated above, the accused was working as a developer. Even though if it is believed the complainant had received Rs.3,00,000/ from his account, the complainant has volunteered that he received Rs.3,00,000/ as loan from other persons. The complainant has failed to explain in the complaint as to why he acquired loan from other persons and from whom he availed the said loan only to help the accused. The complainant also failed to state the date of payment SCCH-20. 11 CC. No.53253/2017 made to the accused and also from whom the amount was received as loan which was a crucial point for consideration of the financial capacity of the complainant. In this regard, the counsel has relied upon the Judgment of Hon'ble High court of Karnataka in H.Manjunath Vs A.M. Basavaraju, reported in ILR 2014 KAR 6572, wherein the accused was acquitted for absence of statement in the complainant and material particulars of the transaction in the complainant and the difference in Hand writing and the ink. A perusal of the said judgment is based upon different issue and the fact where the accused had admitted the issuance of the cheque and it was also proved that the accused has deposited the amount received by him. Thus in the said situation, the difference in the ink and handwriting upon the cheque would absolutely be of a material thought which surely does not apply to the case on hand, where the accused is denying the issuance of the cheque itself.
SCCH-20. 12 CC. No.53253/2017
15. Further it is the defence of the accused that the cheque marked as Ex.P.1 contains lots of difference, especially the ink and Hand writing, which is seen clearly through the naked eye. As per the complainant, the accused has already signed the Ex.P.1 before issuing of the said cheque to him. Therefore the counsel for accused submits that the complainant has filled up the cheque as per his whims and fancies and the accused never issued the cheque to the complainant.
16. Though the presumption as discussed above under section 139 that the cheque was issued for repayment of legally recoverable debt, the accused is under a burden to rebut the presumption, where the accused is to show as to how the said cheque went into the hands of the complainant. No way the accused has set up the said defence as to how the cheque came into the hand of the complainant, but denies that the cheque was never given to the complainant. Of course it is a settled law that non entry of accused to the witness box is SCCH-20. 13 CC. No.53253/2017 not fatal to the case of the accused, as stated in Krishna Janardhan Bhat case reported in 2008 AIR SCW 738. But the accused is under a burden to rebut the said evidence properly and setup the defence properly. No way it is stated by the accused as to how the cheque went in the hands of the complainant and therefore this court has to believe the words of the complainant, that the cheque was issued by the accused for payment of legally recoverable debt.
17. The counsel for the accused has also relied upon the judgment of the Hon'ble Supreme court in John K Abrahim Vs Salme C Abrahim and another, reported in 2014 AIR SCW 2158, wherein it is held that the complainant is not sure as to who wrote the cheque or as to when and where existing transaction took place. The defects in the evidence of the complainant as noted by the trial court was brushed. But in the instant case when the accused has failed to explain the crucial point as to entry of the cheque in the hands of the complainant, this SCCH-20. 14 CC. No.53253/2017 question as to when and who has written the said cheque does not arise at all. The Issuance of blank cheque in favour of the party also assures the holder of the cheque to fill up the same with regard to the legally recoverable debt.
18. Regarding the financial capacity of the complainant, the counsel for the accused has relied upon the judgment in Basavlingappa Vs Mudibasappa where the failure of the complainant to prove the financial capacity cannot be termed as perverse without discarding the evidence lead by the defence and has lead to the acquittal of the accused. Even in the instant case also when it is deposed by the complainant that he had received Rs.3,00,000/ from his friends, who are not examined before this court and when he himself is under a debt, the question of lending loan to others does not arise. But apart from this to be noted is, the accused and the complainant are relatives and well known to each others. This fact of the relationship between the SCCH-20. 15 CC. No.53253/2017 complainant and the accused is not disputed. In this situation may be in view of relationship, there are chances of a person to help his relatives with a belief that the amount would be returned back to him. Thus there are many instance of cases so as to consider that the complainant might have paid Rs.6,00,000/ by obtaining loan of Rs.3,00,000/ from other persons. By merely denying the allegations made by the complainant, will not lead to the rebuttal of the presumption raised under section 139 of Negotiable Instrument Act. Accordingly all these deferences as raised by the accused in the absence of the proper explanation as to moving of the cheque to the hands of the complainant does not hold any water.
19. In this circumstances, if it is believed that the complainant had paid amount of Rs.6,00,000/ to the accused, as admitted by the complainant himself, the transaction was in the month of March 2013. As deposed by the complainant, the accused did not turn up to pay SCCH-20. 16 CC. No.53253/2017 the said debt within 3 years and therefore he demanded to repay amount in the month of June 2016 and also demanded to handover 6 guntas of land, since the accused was a developer and appears to have promised at the time receipt of Rs.6,00,000/. Therefore admittedly, 3 years has clearly elapsed. No action is taken by the complainant in the 3 years from March 2013 to recover the said amount if any from the accused. That in order to consider that the said debt is a legally recoverable one, there should be a valid acknowledgment of the debt before expiry of 3 years from the date of the loan. If the debt is not legally recoverable debt at the time of issuance of the cheque, there is no offence Under Section 138 of the Negotiable Instrument Act. This has been considered and upheld in many judgments of the Hon'ble High court and Supreme court, which is also held in the Criminal Appeal No.200057/2016 dated 17.12.2020 by the Kalburgi bench in Bidar urban cooperative bank Ltd., Vs Mr.Girish, where the Hon'ble High court has clearly held as under
SCCH-20. 17 CC. No.53253/2017 "the cheque given in discharge of a time barred debt will not constitute a promise in writing so as to attract a criminal liability Under section 138 of the Negotiable Instrument Act". This principle is aptly applicable to the instant case on hand. The issuance of the cheque as admitted by the complainant is itself in the year 2017 while the transaction is in the year 2013. The cheque is thus not issued corresponding to the legally recoverable debt, which is time barred as on March 2016. There is no demand from the complainant for all the 4 years and no steps are taken by the complainant to secure the amount, which is issued as a loan if any. Law does not help the person who has slept over and ignored the law. Therefore even if it is believed that the complainant has paid amount of Rs.6,00,000/ to the accused in the month of March 2013, the legally recoverable debt does not exist as in the year 2017, over which the complaint has claimed the cause of action i.e., issuance of cheque. Therefore the provisions of Section 138 does not attract to the instant case on hand and the accused has clearly SCCH-20. 18 CC. No.53253/2017 rebutted the presumption raised under section 139 of Negotiable Instrument Act. Therefore, the above point No.1 is answered in negative, holding that the accused has not committed any offence punishable Under section 138 of Negotiable Instrument Act.
20. POINT NO.2: Therefore, for the reasons discussed above, I proceed to pass the following:
ORDER Acting under powers conferred under Section 255(1) of Cr.P.C., the accused is acquitted from the alleged offence punishable under Section 138 of Negotiable Instrument Act.
His bail bonds stands canceled.
[Dictated to the stenographer, transcribed by him corrected and then pronounced by me in the open court on this the 14 th day of September 2021.] (SHARMILA C.S.) V ASCJ & XXIV ACMM, Court of Small Causes, Mayo Hall Unit, Bangalore.
SCCH-20. 19 CC. No.53253/2017
ANNEXURE
LIST OF WITNESS EXAMINED FOR PROSECUTION :
PW.1: Shivanand K Kote LIST OF WITNESS EXAMINED ON BEHALF OF THE ACCUSED: NIL LIST OF DOCUMENTS MARKED FOR COMPLAINANT :
Ex.P.1: Cheque
Ex.P.1(a): Signature of the accused
Ex.P.2: Bank Chalan
Ex.P.3: Bank endorsement
Ex.P.4: Copy of Legal notice
Ex.P56: postal receipts
Ex.P78 unserved postal cover
LIST OF DOCUMENTS MARKED ON BEHALF OF
ACCUSED: NIL
(SHARMILA C.S.)
V ASCJ & XXIV ACMM,
Court of Small Causes,
Mayo Hall Unit, Bangalore.
SCCH-20. 20 CC. No.53253/2017
14.09.2021 Order pronounced in the open court
vide separate Judgment
ORDER
Acting under powers conferred under
Section 255(1) of Cr.P.C., the accused is acquitted from the alleged offence punishable under Section 138 of Negotiable Instrument Act.
His bail bonds stands canceled.
V ASCJ & XXIV ACMM,