Bangalore District Court
Sri.C.K.Satish vs Sri.Ramesh Iyer on 20 August, 2022
1
C.C.No.9432/2018
KABC030268672018
Presented on : 17-04-2018
Registered on : 17-04-2018
Decided on : 20-08-2022
Duration : 4 years, 4 months, 3 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 20th day of August 2022.
Present: Sri.N.M. RAMESHA, B'Com.,L.L.M.
XVI Addl.C.M.M., Bengaluru City.
Case No. C.C.No
: C.C.No.9432/2018
Complainant : Sri.C.K.Satish,
S/o.C.V.Kodandarama Setty,
Aged about 43 years,
Residing at No.208,
Ground Floor, 4th Cross,
9th Main, 2nd Block,
Jayanagar,
Bangalore-560011
(By Sri.S.A.Sami, Adv,)
V/s
Accused : Sri.Ramesh Iyer,
S/o. not known to the
complainant.
Aged about 50 years,
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C.C.No.9432/2018
Residing at No.46/5,
Mission Road Signal Crossing,
Behind Nobel Stores,
Bangalore-560 027.
(By Sri.M.K.Venkatesh,
Adv.,)
Case instituted : 17.02.2018
Offence complained of : U/s 138 of N.I Act
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 20-08-2022
JUDGMENT
The Complainant has filed this complaint against the accused under the provisions of Sec.200 of the Code of Criminal Procedure, for the offence punishable U/Sec.138 of the Negotiable Instruments Act.
2. The case of the Complainant is as under:-
The accused had approached the complainant stating that "Connect Corporate Services" situated Mumbai will introduce companies for the purpose of collecting donations. Based on the assurance given by the accused, the complainant has agreed to pay a sum of Rs.9 lakhs to the accused on the understanding that the said Connect Corporate Services will introduce companies to the complainant to obtain funds to trusts.3
C.C.No.9432/2018 The complainant has paid a sum of Rs.9 lakhs to the Connect Corporate Services and amount was transferred to the Connect Corporate Services through RTGS dated 11.09.2017 bearing URT No.P17091176124033 through Karur Vysya Bank, Basavanagudi Branch, Bengaluru.
3. It is further averred in the complaint that the accused had assured the complainant if Connect Corporate Services is not in a position to introduce companies to the complainant for the purpose of collection of donations to the trust, then the amount paid by the complainant to the Connect Corporate Services will be refunded by the accused to the complainant. The accused has issued a cheque bearing No.000129, dated 11.09.2017 for Rs.9 lakhs drawn on HDFC Bank, Indiranagar branch, Bengaluru to the complainant towards repayment of amount of Rs.9 lakhs. The Connect Corporate Services did not introduce any companies to the complainant for collecting donations to the trust. Therefore, on the instructions of the accused, the complainant has presented the cheque for encashment before Karur Vysya Bank, Basavanagudi branch, Bengaluru. But the said cheque was came to be dishonoured with an endorsement "Instrument Out Dated Stale". Therefore, the complainant got issued a legal notice on 06.01.2018 calling upon the accused to 4 C.C.No.9432/2018 pay the cheque amount. The accused has received the notice. But the accused did not repay the amount of Rs.9 lakhs, but has issued an evasive reply and committed an offence punishable U/s.138 of N.I.Act. Hence, this complaint.
4. After presentation of complaint, it was ordered to be registered as PCR No.2386/2018 vide order dated 22.02.2018. The Sworn statement of the complainant has been recorded as C.W.1 and the documents were got marked as per P.1 to P.7.
5. My Learned predecessor in office having heard the arguments of the learned counsel for complainant and on perusal of complaint, sworn statement of CW-1 and documents at Ex.P.1 to 7 and having satisfied with the prima-facie materials placed on record, has taken the cognizance for the offence punishable U/s.138 of N.I.Act and ordered to register the criminal case against the accused in C.C.No.9432/2018 and process was ordered to be issued against the accused vide order dated 10.04.2018.
6. On service of summons, the accused has appeared before the court through his learned counsel and obtained the bail vide order dt: 20-08-2018 by 5 C.C.No.9432/2018 furnishing surety. Copies of all the prosecution papers were supplied to the accused.
7. The plea of the accused has been recorded for the offence punishable U/s.138 of N.I.Act and the substance of accusation has been read over and explained to accused in the language known to him. The accused has pleaded not guilty, but claims to be tried.
8. In order to prove his case, the complainant got himself examined as P.W.1 and got the documents marked as Ex.P-1 to Ex.P-9. The complainant has examined his father Kodandarama Setty as PW-2.
9. The statement of accused as contemplated under the provisions of Section 313 of Cr.P.C has been recorded and the incriminating evidence as such forthcoming against the accused in the evidence of PW-1 and 2 has been read over and explained to the accused in the language known to him. But the accused has denied the entire evidence of PW-1 and 2. The accused did not choose to adduce any evidence on his behalf.
10. I have heard the arguments of learned counsel for both the sides. The learned counsel for the complaiannt has also filed notes of arguments. In the light of the arguments canvassed on both side, I have 6 C.C.No.9432/2018 carefully perused the oral evidence and documentary evidence placed on record.
11. Now, the points that would arise for my consideration are as under:-
1. Whether the Complainant proves that he has paid an amount of Rs.9,00,000/- to the accused on 11.09.2017 and the accused has issued a cheque bearing No.000129, dated 11.09.2017 drawn on HDFC Bank, Indiranagar Branch, Bengaluru in his favour towards the discharge of legally recoverable debt or any other debt and on presentation of cheque for encashment on 11.09.2017 before Karur Vysya Bank, Basavanagudi Branch, Bengaluru, it was came to dishonoured with an endorsement as "Instrument Out Dated Stale" and inspite of issuance of legal notice dated 6.1.2018 and in spite of legal notice, the accused has failed to pay the cheque amount to the complainant and thereby committed an offence punishable U/s.138 of N.I.Act?
2. What Order?
12. On considering the oral and documentatry evidnece placed on record, now my answer to the above points are as under :
Point No.1: In the Negative.7
C.C.No.9432/2018 Point No.2: As per final order for the following :
REASONS
13. Point No.1 : The provisions of Sec.118 of Negotiable Instrument Act deals about presumptions as to neogtiable instruments. As per this provisions of law, unit the contrary is proved, the following presumptions shall be made:-(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transfered, was accepted, indorsed, negotiated or transferred for considertaion: (b) as to date: that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance- that every accepted bill of exchange was accpted within a reasonable time after its date and before its maturity. (d) as to time of transfer-that every transfer of a negotiable instrument was made before the maturity; (e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they apear thereon; (f) as to stamps-that a lost promissory note, bill of exchange or cheque was duly stamped and (g) that holder is a holder indue course- that the holder of a negotiable instrument is a holder in due course.
8C.C.No.9432/2018
14. The provisions of Sec.138 of Negotiable Instrument Act deals about dishonour of cheque for insufficiency etc., of funds in the accounts. As per this provisions of law, where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or inpart, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other proviosn of this Act, be punished with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both.
15. As per the proviso attached to the above said provisions of law, nothing contained in this section shall apply unless-(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a 9 C.C.No.9432/2018 demand for the payment of the said amount of money by giving a notice, in writing , to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
[ 16. The provisions of Sec.139 of Negotiable Instrument Act deals about presumption in favour of holder. As per this provisions of law, it shall be presumed, unles the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability.
17. The learned counsel for the complainant has argued with force that the oral evidence of PW-1 and 2 read with documentary evidence at Ex.P.1 to P.9 clearly establishes that the accused has introduced the Connect Corporate Services to the complainant stating that it will introduce the companies to the complainant which will give funds to the trust. Therefore, based on the assurance of the accused, the complainant has agreed to 10 C.C.No.9432/2018 pay Rs.9 lakhs with an understanding that the said Connect Corporate Services will introduce the companies to the complainant to collect funds to the trust. Therefore, on the request and assurance of the accused, the complainant has paid a sum of Rs.9 lakhs to the Connect Corporate Services and the amount was transferred through RTGS dated 11.09.2017.
18. It is further contended that the accused had assured that if Connect Corporate Services is not in a position to introduce the companies to the complainant for the purpose of collection of donation, then the accused will refund the amount to the complainant and accordingly, he has issued a cheque in question vide Ex.P.1 in favour of the complainant towards repayment of amount of Rs.9 lakhs. But the Connect Corporate Services did not introduce any companies to the complainant for collection of donations to the trust and therefore, the complainant has presented the cheque for encashment which was came to be dishonoured with bank endorsement as "Instrument Out Date Stale" vide Ex.P.2. Therefore, the complainant got issued a legal notice dated 06.01.2018 vide Ex.P.3 which was served on the accused as per Ex.P.6. But in spite of service of notice, the accused has failed to pay the cheque amount 11 C.C.No.9432/2018 and issued an evasive reply Ex.P.7 and thereby the accused has committed an offence punishable U/s.138 of N.I.Act. The accused did not dispute either the issuance of cheque or his signature on the cheque or issuance of legal notice or service of legal notice. The complainant has complied the provisions of 138 of N.I.Act and therefore, the presumption is in favour of the complainant U/s.118 and 139 of N.I.Act.
19. It is further contended that the accused has taken a defence that there was no money transaction between him and the complainant at any point of time and he has issued blank cheque in question for Rs.2 lakhs only towards the security purpose and the complainant has illegally filled up the blank cheque and presented the same without intimation and therefore, he is not liable to pay any cheque amount. But the accused neither adduced oral evidence nor produced any documentary evidence or elicited any facts in the evidence of PW-1 and PW-2 and thereby failed to prove the defence and therefore, the entire evidence of complainant and PW-2 and documentary evidence at Ex.P.1 to P.9 has to be accepted in toto and the accused is liable for conviction.
12C.C.No.9432/2018
20. Per contra, the learned counsel for the accused has vehemently contended that the oral evidence of PW-1 and 2 and documentary evidence at Ex.P.1 to P.9 do not establish the transaction between complainant and accused. The complaint, notice and affidavit chief-examination of PW-1 do not indicate the date of approach of the accused to complainant and date of loan. In fact, there was absolutely no transaction between the complainant and accused and the cheque was also not dishonoured either for want of sufficient funds in the account of the accused or for exceeding arrangement. On the other hand, it was came to be returned with an endorsement "Instrument Outdated Stale" and therefore, the complainant has not complied the provisions of Section 138 of N.I.Act and therefore, question of drawing presumption in favour of the complainant U/s.118 and 139 of N.I.Act does not arise.
21. It is further contended that the cheque in question was issued for security purpose at the instance of one Veerendra Rao through whom the complainant has paid amount of Rs.9 lakh to Connect Corporate Services and thereafter, the complainant has filled the cheque in question and presented the same before the Bank without knowledge and intimation of the accused 13 C.C.No.9432/2018 and therefore the ingredients of Section 138 of N.I.Act does not attract and therefore the presumption U/s.118 adn 139 does not come in the way of complainant.
22. It is further contended that though the accused has not adduced any evidence or produced any documents, but he can definitely make use of the evidence of PW-1 and 2 and documentary evidence placed on record to rebut the presumption and accordingly, the material facts have been elicited in the evidence of PW-1 and 2 and thereby the accused has raised probable defence and also proved the same before the Court and hence the accused is not liable to pay any cheque amount and hence, the accused is entitled an order of acquittal.
23. Now keeping above said provisions of Section 118, 138 and 139 of N.I.Act and the arguments canvassed on both sides in mind, let us consider as to whether the complainant could able to prove that he has paid an amount of Rs.9 lakhs to the accused and the accused has issued cheque in question in his favour towards the legally recoverable debt or any other debt and whether complainant could able to fulfill all the mandates of Section 138 of N.I.Act, so as to raise a 14 C.C.No.9432/2018 presumption in his favour as contemplated under the provisions of Section 118 and 139 of N.I.Act.
24. It is averred in the complaint and stated by PW-1 in his evidence that the accused has approached and introduced Connect Corporate Services stating that it will introduce the companies which will give funds to the trusts and also for collection of donations. It is further averred in the complaint and stated by PW-1 in his evidence that based on the request and assurance given by the accused, he has paid an amount of Rs.9 lakhs to Connect Corporate Services through RTGS dated 11.09.2017. The accused had assured that if the Connect Corporate Services is not in a position to introduce companies for the purpose of collection of donation to the trust, then the accused will refund the amount to the complainant and accordingly he has issued a cheque bearing No.000129, dated 11.09.2017 drawn on HDFC Bank, Indiranagar branch, Bengaluru.
25. It is further averred in the complaint and stated by PW-1 in his evidence that the said Connect Corporate Services did not introduce any companies for collection of donations to the trust and therefore, on the request of the accused, he has presented the cheque for encashment to Karur Vysya Bank, Basavanagudi 15 C.C.No.9432/2018 branch, Bengaluru which was came to be bounced back with endorsement as "Instrument Outdated Stale" and therefore, he has issued a legal notice dated 6.01.2018 which was came to served on the accused and he has replied the notice and therefore, he has filed the complaint before the Court.
26. It is the evidence of PW-2 that he knows the complainant who is his son. On 11.09.2017, he was present in his office wherein the accused came to his office and handed over a cheque for Rs.9 lakhs to his son for the transaction which has taken place between his son and accused.
27. The complainant has produced a cheque dated 11.09.2017, bank endorsement dated 11.12.2017, legal notice dated 6.01.2018, postal receipts dated 08.01.2018, postal acknowledgement, reply notice dated 24.01.2018, statement of accounts and income tax returns verification form and they are marked at Ex.P.1 to P.9.
28. The accused has specifically denied the mandatory transaction between him and complainant and issuance of cheque in question for legally recoverable debt by contending that he has not received 16 C.C.No.9432/2018 any money from the complainant or issued any cheque to the complainant for legally recoverable debt and he has issued cheque in question towards the security purpose at the instance of Veerendra Rao and there was no existence of legally recoverable debt and the cheque was also not dishonoured for want of sufficient funds in the account of the accused. But it was returned as "Instrument Outdated Stale".
29. Under these circumstances, initial burden lies on the complainant to prove the existence of legally recoverable debt and therefore, the accused has issued a cheque in question towards the legally recoverable debt and it was dishonoured for want of sufficient funds in the account of the accused or it exceeds arrangement and therefore, the accused is liable to pay the cheque amount to the complainant.
30. The complainant all the while in his complaint and in his evidence has stated that the accused has introduced the Connect Corporate Services to him stating that it will introduce the companies to him for collection of donations and also funds to the trust. Therefore, based on the assurance of the accused, he has agreed to pay Rs.9 laksh and accordingly, he has paid Rs.9 lakhs to Connect Corporate Services through 17 C.C.No.9432/2018 RTGS on 11.09.2017. The accused has assured that in case Connect Corporate Services is not in a position to introduce companies to him for collection of donation to the trust, then he will refund the amount and therefore, the accused has issued a cheque towards repayment of amount of Rs.9 lakhs. But the Connect Corporate Services did not introduce any companies and therefore, on the request and instructions of accused, he has presented the cheque for encashment which was came to be bounced back with an endorsement "Instrument Outdated Stale" and therefore, he has issued a legal notice which was served on the accused.
31. But the complaint, notice and affidavit in chief-examination of PW-1 and 2 do not indicate or establish the exact date on which the accused has approached the complainant to introduce Connect Corporate Services. The complaint, notice and affidavit chief-examination of PW-1 and PW-2 also do not indicate or establish the exact date on which the complainant has paid an amount of Rs.9 lakhs to the accused. So, it is crystal clear that the complaint, notice and affidavit chief-examination of PW-1 and 2 are vague in nature.
32. Be that as it may. There are no materials to show that the complainant has paid any amount to the 18 C.C.No.9432/2018 accused at any point of time and the accused has issued cheque in question to the complainant towards the discharge of legally recoverable debt. There is also no materials to show that the complainant came in contact with accused in the month of June or July 2017.
33. At one point of time, PW-1 has stated that he has paid Rs.9 lakhs directly to the accused. But at another point of time, PW-1 has stated that he has paid Rs.9 lakh to Connect Corporate Services. At another point of time, PW-1 has feigned his ignorance as to the exact date of loan transaction. Even according to PW-1 that he has transferred an amount of Rs.9 lakhs to Connect Corporate Services account and not to the account of the accused. PW-1 has expressed his ignorance as to who was the authorized signatory to Connect Corporate Services. The accused is no way concern to the said Connect Corporate Services. This necessarily indicate that there was no monetory transaction between complainant and accused at any point of time and the complainant has not paid any amount to the accused.
34. It is pertinent to note here that if really the complainant has paid Rs.9 lakhs to Connect Corporate Services based on the request, assurance and advice of 19 C.C.No.9432/2018 the accused, then the complainant could have definitely obtained any documents like memorandum of understanding, pronote, loan agreement or any other authenticated documents to substantiate the same. But the complainant has not obtained any such documents from the accused. No explanation as such forthcoming in the evidence of PW-1 or in the notice or in the complaint.
35. On the other hand, PW-1 has admitted that there is no document to show that he has paid Rs.9 lakhs to accused. In fact, PW-1 has feigned his ignorance to the suggestion that one Veerendra Rao was the authorized signatory to the Connect Corporate Services. But he has not specifically denied said suggestion. If really the complainant on the advice and request of the accused had transferred any amount to the Connect Corporate Services, then as a natural human being, conduct and behaviour, the complainant ought to have made an enquiry about the Connect Corporate Services and also refund capacity of said Connect Corporate Services. But he has not done so. No such explanation as such forthcoming either in the complaint or in the notice or in the affidavit chief- examination of PW-1.
20C.C.No.9432/2018
36. But on the other hand, PW-1 has stated that he did not choose to verify about the back ground of Connect Corporate Services before transferring an amount of Rs.9 lakhs to the said company and also not taken any steps to know the background of the said company and also not taken any steps to verify about the responsible persons of the said company. The very inaction on the part of the complainant in this regard creates a doubt about the case made out by the complainant.
37. Even according to PW-1 that he has not obtained any documents from the accused with respect to alleged transaction and also not obtained any memorandum of understanding from the accused or any other documents. As admitted by PW-1 and as shown in Ex.P.8 and 9, there is no reference to show that the complainant has paid any amount to the accused. Even according to PW-1 and as per the document at Ex.P.8 and P.9, an amount of Rs.9 lakhs has been transferred to the account of Connect Corporate Services and it has been shown as loan to Connect Corporate Services. But these facts do not finds a place either in the complaint or in the notice or affidavit in chief-examination of PW-1 as admitted by PW-1 in his evidence.
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38. It is also admitted by PW-1 that he has not at all paid any amount to the accused at any point of time. When it is suggested to PW-1 that the accused is not responsible to, he has stated that the accused has issued the cheque for security purpose in respect of payment of Rs.9 lakhs. Even according to PW-1 that he do not know about the transaction of accused including his personal background and also do not know the office of the accused and he has not obtained any documents from the accused. It is also admitted by PW-1 that he has not transferred any amount of Rs.9 lakhs to the accused through NEFT on 11.09.2017 and there is no reference in the Ex.P.9 to show the transfer amount of Rs.9 lakhs to the account of the accused. So, it is crystal clear from the evidence of PW-1 that he has not at all paid any amount to the accused and there are no materials to show that it is only on the basis of advice, assurance and request of accused, the complainant has paid amount to Connect Corporate Services.
39. The complainant has examined PW-2 before the Court if possible to prove the alleged transaction and issuance of cheque in question to the complainant towards legally recoverable debt. No doubt PW-2 has stated that he was present in his office on 11.09.2017 22 C.C.No.9432/2018 and the accused came to his office and handed over a cheque for Rs.9 lakhs to his son for the transaction which has taken place between him and accused. But the evidence of PW-2 do not indicate the transaction which was taken place between the son of PW-2 and accused. The evidence of PW-2 also vague in nature and not specific and do not indicate that the accused has issued the cheque to PW-2 towards any legally recoverable debt.
40. In fact, PW-2 has feigned his ignorance about the alleged date of transaction and he does not know as to whom his son has paid the amount. According to PW-2 that at the time of lending the loan, he and his son were present and nobody was present. But PW-1 has stated that at the time of alleged transaction, he and his father and one Munireddy were present who has not been examined before the Court. So, it is clear that the evidence of PW-1 and 2 is highly contrary in nature and falsifies the case made out by the complainant. Even according to PW-1 that there is no document to show that any amount transferred from the account of his son to the account of the accused at any point of time. Under these circumstances, the evidence of PW-1 is also not come in the way of complainant to prove that the 23 C.C.No.9432/2018 accused has issued the cheque in question to the Complainant towards any legally recoverable debt or any other debt.
41. On appreciation of entire oral and documentary evidence placed on record, it is found that the oral evidence of PW-1 and 2 are highly contrary in nature and not consistent and inconformity hat with case made out by the complainant and the documents at Ex.P.1 to P.9. The evidence on record do not indicate that complainant has paid any amount to the accused at any point of time. Even according to complainant that he has paid an amount of Rs.9 lakhs to the Connect Corporate Services and not to the accused at any point of time.
42. A careful perusal of cheque vide Ex.P.1 goes to show that the signature and the contents of the cheque are in different handwriting including date, amount and signature. In order to attract the provisions of Section 138 of N.I.Act., the cheque ought to have been dishonoured either for want of sufficient funds in the account of the accused or for exceeding the arrangement. But in this case, the cheque in question was came to be dishonoured not for want of sufficient funds in the account of the accused or exceeding arrangement. But on the other hand, the cheque in 24 C.C.No.9432/2018 question vide Ex.P.1 was came to be dishonoured vide endorsement at Ex.P.2 as "Instrument Out dated Stale". Under these circumstances, the defence taken by the accused that a signed blank cheque was issued to one Veerendra Rao in respect of 2 lakhs with respect to transaction between the said Veerendra Rao and complainant and Connect Corporate Services and thereafter, it was filled by the complainant and filed the case against the accused is seems to be more probable than that of the case made out by the complainant.
43. The oral and documentary evidence placed on record do not establish as to how an amount of Rs.9 lakhs was due as on 11.09.2017 payable by the accused. As already stated above, the complainant has not disclosed as to the exact date on which the accused has approached him and the exact date on which the accused has assured and requested PW-1 to lend a loan amount of Rs.9 lakhs to the Connect Corporate Services. The cheque is dated 11.09.2017. The Bank has issued an endorsement on 11.12.2017 stating that the "Instrument is Out Dated Stale". Under these circumstances, the complainant ought to have established by producing the relevant documents before the Court that the amount mentioned in the cheque was 25 C.C.No.9432/2018 actually due from the accused as on the date of issuance of cheque on 11.09.2017 and towards the said legally recoverable debt, the accused has issued the cheque Ex.P.1. But, the complainant has not placed any such materials before the Court and no explanation as such forthcoming in the documentary evidence on record. Under these circumstances, it cannot be said that the amount mentioned in the cheque was the legally recoverable debt from the accused.
44. No doubt it is true that the accused neither adduced oral evidence nor produced any documentary evidence. But it is well settled position of law that the accused need not step into the witness box to rebut the presumption. But on the other hand, from the evidence led by the complainant, the presumption can be rebutted. It is also well settled position of law that when the accused has to rebut the presumption U/s.118 and 139 of N.I.Act, the standard of proof for doing so is that of preponderance of probabilities. The accused has raised a probable defence which creates a doubt about the existence of a legally recoverable debt or any other debt. The accused has been able to rebut the presumption available to the complainant. The learned counsel for the accused has projected several 26 C.C.No.9432/2018 circumstances which renders the evidence of PW-1 and PW-2 are highly doubtful and unreliable. Therefore, utmost confidence cannot be reposed on the evidence of PW-1 and PW-2 and much reliance cannot be placed on the documents at Ex.P1 to P.9.
45. Under these circumstances, the arguments of the learned counsel for the complainant that the oral evidence of PW-1 and PW-2 and documentary evidence at Ex.P.1 to P9 establishes that the complainant has lent a loan amount of Rs.9 lakhs to the accused and the accused has issued a cheque in question towards the legally recoverable debt and the complainant has proved the case and hence the presumption is in favour of the complainant and hence, the accused is liable to pay the cheque amount to the complainant is not sustainable under law and therefore, cannot be accepted.
46. But on the other hand, there is some legal force in the submission of the learned counsel for the accused that the oral and documentary evidence on record do not establish that the cheque in question was issued to the complainant towards the legally recoverable debt or any other debt. But the evidence on record would indicate that the accused has issued the 27 C.C.No.9432/2018 blank cheque to one Veerendra Rao in respect of transaction between Veerendra Rao and complainant and Connect Corporate Services and thereafter, the complainant has filled the cheque and presented before the Bank and thereafter filed the case and there was no transaction between the complainant and the accused at any point of time and the complainant has failed to prove his case with legal evidence before the Court and therefore, the question of drawing presumption in favour of the complainant U/s.118 and 139 of the N.I.Act does not arise and the accused is not liable to pay any cheque amount to the complainant.
47. Therefore, for the reasons discussed above, this Court is of the considered view that the materials placed on record do not establish the guilt against the accused for the offence punishable U/s.138 of N.I.Act. Hence, I hold that the complainant has failed to prove the charges leveled against the accused for the offence U/s.138 of N.I.Act. Hence, I answer point No.1 in the Negative.
48. Point No.2: In view of my findings on point No.1, I proceed to pass the following:-
28C.C.No.9432/2018 ORD ER The accused is found not guilty for the offence punishable U/s.138 of Negotiable Instruments Act.
Hence, acting U/sec.255(1) of Cr.P.C. the accused is acquitted for the offence punishable U/sec.138 of N.I.Act.
The bail bond and surety bond of the accused shall be in force till the appeal period is over as contemplated under the provisions of Sec.437(A) of Cr.P.C.
(Dictated to the stenographer, transcribed by him, print out taken by him, verified, corrected and then pronounced by me in the open Court on this the 20th August 2022).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.C.K.Satish
P.W.2 : Sri.C.V.Kodandarama Setty
29
C.C.No.9432/2018
2. List of documents exhibited on behalf of the Complainant:-
Ex.P.1 : Original Cheque Ex.P.1 (a) : Signature of the Accused Ex.P.2 : Bank Memo. Ex.P.3 : Copy of Legal Notice Ex.P.4 and 5 : Two Postal Receipts. Ex.P.6 : Postal Acknowledgement. Ex.P.7 : Reply. Ex.P.8 : Bank Statement. Ex.P.8(a) : Relevant Entry. Ex.P.9 : Income Tax Returns 2018-19
3. List of witness/s examined on behalf of the Accused:-
: Nil
4. List of documents exhibited on behalf of the Accused:-
: Nil (N.M.RAMESHA) *mbh XVI ACMM, Bengaluru City.