Bangalore District Court
Sri.Ravindra Mayanna vs Sri.M.Shankarappa on 2 December, 2022
KABC030952472017
Presented on : 04-09-2017
Registered on : 04-09-2017
Decided on : 02-12-2022
Duration : 5 years, 2 months, 28 days
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated : This the 2nd day of December 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.21994/2017
Complainant : Sri.Ravindra Mayanna,
S/o. Sri.S.Mayanna,
Aged about 53 years,
Residing at No.745,
15th Main Road, 18th Cross,
BSK 2nd Stage,
Bangalore -560 070.
(By Sri.B.Dinesh & Sri.T.S.
Shivanna., Adv,)
V/s
Accused : Sri.M.Shankarappa,
S/o. Sri.Mudalaya,
Aged about years,
R/at No.1/A, 3rd Cross,
2nd Main Road, Vikasnagar,
T. Dasarahalli,
Nagasandra Post,
Bangalore -560 073.
(Rep. by Sri.Devaraju.B.K., Adv.)
Case instituted : 17.05.2017
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Acquitted
Date of order : 02-12-2022
JUDGMENT
The Complainant had 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 was well acquitanted with complainant since several years. The accused was facing financial problems. Therefore, the accused has approached the complainant in the year 2016 seeking financial help for renovation of his house. The complainant has paid an amount of Rs.4,85,000/- to the accused. The accused has promsied to repay the amount within six months. After stipulated period, the complainant has approached the accused in the first week of March 2017 and requested to repay the loan amount. The accused has issued a cheque bearing No.031541 dt: 15.3.2017 for Rs.4,85,000/- drawn on Central Bank of India, Sheshadri Road, Gandhinagar branch, Bangalore in favour of the complainant. Therefore, the complainant has presented the cheque on 15.3.2017 for encashment before Syndicate Bank, BSK 2nd Stage, Bangalore. But the cheque was dishonoured for want of sufficient funds in the account of the accsued vide bank endorsement dt: 16.3.2017. The complainant got issued a legal notice dt: 25.3.2017 calling upon the accused to pay cheque amount. The notice was served on the accused. But, inspite of service of legal notice, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act. Therefore, the complainant has presented this complaint before the court on 17.5.2017 along with the application to condone the delay of 5 days in presenting the complaint.
3. After presentation of complaint, it was ordered to be registered as PCR No.6316/2017 vide order dt:
18.5.2017. The notice on interim application was ordered to be issued to the accused.
4. But inspite of service of notice on interim application, the accused has failed to appear before the court and failed to file objection to the application.
5. The complainant got examined himself as CW-1 by filing affidavit. This court having satisfied with the reasons assigned in the application has condoned the delay of 5 days in filing the complaint vide order dated 10.7.2017.
6. The sworn statement of the complainant has been recorded and the documents were marked as Ex.C.1 to C.5.
7. My learned predecessor in office having heard the arguments of learned counsel for the complainant and having satisfied with the complaint averments, sworn statement of complainant and documents at Ex.C.1 to C.5 and having satisfied with prima facie materials placed on record, has taken the cognizance for the offence punishable U/s.138 of N.I.Act and the case was ordered to be registered in CC.No.21994/2017 and process was ordered to be issued against the accused vide order dt: 1.9.2017
8. On service of summons, the accused has appeared before the court through his learned counsel and obtained the bail by depositing cash surety of Rs.4,000/- vide Q.No.1032/18 dt: 13.4.2018. All the prosecution papers were supplied to the accused.
9. Plea of accused for the offence punishable U/s.138 of N.I.Act has been recorded and the substance of accusation has been read over and explained to the accused in the language known to him. The accused has pleaded not guilty, but claims to be tried.
10. In order to prove the guilt against the accused, the complainant got himself examined as PW-1 and got the documents marked as Ex.C.1 to C.7. PW.1 was subjected for cross examination by the learned counsel for the accused.
11. 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 accsued in the evidence of complainant and documents has been read over and explained to the accused in the language known to him. But the accused has denied the evidence of complainant and documents. The accused did choose to enter the defence evidence.
12. In order to prove his defence, the accused got himself examined as DW-1. However, the accused did not choose to produce documentary evdience on his behalf. Inspite of sufficient opportunities were given, the complainant did not choose to cross examine DW.1. Hence, the cross examination of DW.1 was ordered to be taken as Nil.
13. I have heard the arguments of learned counsels for both sides. The learned counsel for the accused has also filed memo with 14 citations.
14. In the light of the arguments canvassed by the learned counsel for both sides, I have carefully perused the oral and documentary evidence placed on record and also gone through the principles laid down in the decisions cited by learned counsel for the accused.
15. Now, the points that would arise for my consideration are as under:-
1. Whether the complainant proves that the accused has issued a cheque bearing No.031541 dated 15.3.2017 for Rs.4,85,000/- drawn on Central Bank of India, Sheshadri Road, Gandhinagar Branch, Bangalore in his favour towards the legally recoverable debt and on presentation of cheque for encashment before Syndicate Bank, BSK 2nd Stage, Bangalore on 15.3.2017, it was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dt: 16.3.2017 and inspite of issuance of legal notice dated 25.3.2017 and inspite of service of legal notice, the accused has failed to pay the cheque amount and thereby committed an offence punishable U/s.138 of N.I.Act?
2. What Order?
16. On considering and assessing the oral and documentatry evidence placed on record, now my answers to the above points are as under :
Point No.1: In the Negative.
Point No.2: As per final order for the following :-
REASONS
17. 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.
18. 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.
19. 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 three 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 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.
[ 20. 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.
21. Now keeping the above said provisions of Section 118, 138 and 139 of N.I.Act, in mind, let us consider as to whether the complainant could able to comply the provisions of Section 138 of N.I.Act, so as to raise or to draw the presumption in his favour as per Section 118 and 139 of N.I.Act.
22. It is averred in the complaint and stated by PW-1 in his evidence that the accused has availed a loan of Rs.4,85,000/-in the year 2016 for renovation of his house with a promise to repay the loan within six months and he has issued a cheque bearing No.031541 dt: 15.3.2017 for Rs.4,85,000/- drawn on Central Bank of India, Sheshadri Road, Gandhinagar branch, Bangalore in his favour and therefore, he has presented the cheque for encashment before syndicate Bank, BSK 2nd stage, bangalore which was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dt: 16.03.2017 and therefore, he has issued a legal notice on 25.3.2017 which was served on the accused, but inspite fo service of legal notice, the accused has failed to pay the cheque amount and therefore, he has presented the complaint before the court.
23. The complainant has produced the cheque dt:
15.3.2017, bank endorsement dt: 16.3.2017, legal notice dt: 25.3.2017, postal receipt dt: 25.3.2017, postal acknowledgement dt: 27.3.2017, pass book and pro-note and they are marked at Ex.C.1 to C.7.
24. The accused has not seriously disputed the issuance of cheque and his signature on the cheque. In other words, there is no specific suggestions to deny the issuance of cheque and signature of the accused on the cheque. On the other hand, DW.1 in his evidence has stated that he has availed loan of Rs.2 Lakhs and issued two balnk signed cheques. So, it is crystal clear that the accused by necessary implication has admitted that the cheque in question is belongs to him and drawn the same in his account and his signature also finds a place on the cheque.
25. However, on perusal of complaint averments, oral evidence of PW.1 and documentary evidence at Ex.C.1 to C.7, it clearly establishes that the cheque in question vide Ex.C.1 belongs to accused and signature on the cheque is belongs to accused and he has issued the same to the complainant and therefore, the complainant has presented the cheque before the bank on 15.3.2017 which was dishonoured for want of sufficient funds in the account of the accused vide bank endorsement dt: 16.3.2017 as per Ex.P.2 and therefore, the complainant has issued a legal notice vide Ex.P.3 dt:
25.3.2017 which was served on the accused as per Ex.C.5. Since the accused has failed to pay the cheque amount, the complainant has presented the complaint before the court on 17.5.2017.
26. It is pertinent to note here that the cheque vide Ex.C.1 is dt: 15.3.2017. It was presented on the same day within its validity, which was dishonoured for want of sufficient funds on 16.3.2017. The complainant has issued a legal notice on 25.3.2017 within the stipulated period from the date of receipt of bank endorsement which has been served on the accused as per Ex.C.6. As could be seen from the order sheet dt:
10.7.2017, the application filed by the complainant was already allowed and the delay of 5 days in presenting the complaint already condoned.
27. So, it is crystal clear that the complainant has complied the mandates of Sec.138 of NI Act and therefore, the presumptions are infavour of the complainant under the provisions of Sec.118 and 139 of NI Act. Under these circumstances, when once the complainant has fulfilled the mandates of sec.138 of NI Act and when once the court has drawn the presumptions infavour of complainant U/s.118 and 139 of NI Act, then the onus shifts on the accused to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
28. The learned counsel for the accused has argued with force that the complainant has complied all the mandates of Sec.138 of NI Act by adducing oral evidence of PW.1 and by producing the documentary evidence at Ex.C.1 to C.7 which clearly establishes the lending of loan of Rs.4,85,000/- by the complainant to the accused, issuance of cheque in question for regally recoverable debt of Rs.4,85,000/-, presentation of cheque for encashment, dishonour of cheque for want of sufficient funds in the account of the accused including service of legal notice and therefor, the presumptions are in favour of the complainant U/s.118 and 139 of NI Act.
29. It is further contended that the accused neither disputed the issuance of cheque nor his signature on the cheque. But, the accused has taken a contention that he has availed a loan of Rs.2 Lakhs from the complainant on 15.5.2015 and the complainant has obtained two blank signed cheques and a blank signed stamp paper and the complainant has deducted an interest at the rate of 20% and paid only Rs.1,60,000/-
and after four months, he has paid Rs.1 Lakh in installments and he is due for only Rs.1 lakh and not due for any amount, but though the accused has taken this contention, same has not been proved before the court in any manner and the accused has not produced any documentary evidence on his behalf, but on the other hand, the complainant has produced the sufficient materials to prove the guilt against the accused and therefore, the accused is liable for conviction U/s138 of NI Act.
30. Per contra, the learned counsel for the accused has vehemently argued that the oral evidence of PW.1 and documentary evidence at Ex.C. 1to C.7 do not establish the lending of loan of Rs.4,85,000/- by the complainant to the accused and does not establish the issuance of cheque in question towards legally recoverable debt and also not established the service of legal notice to the accused and the complainant has failed to establish the guilt against the accused.
31. It is further contended that the oral evidence of DW.1 would clearly establishes that the accused has availed a loan of Rs.2 Lakhs only from the complainant on 15.5.2015 and the complainant has obtained two blank signed cheques and a stamp paper and he has deducted 20% of the interest and paid Rs.1,60,000/- only and the accused has already paid Rs.1 Lakh in installments and he is due for Rs.1 Lakh only.
32. It is further contended that the evidence of DW.1 is remained unchallenged by the complainant and the complainant failed to cross examine DW.1 and therefore, the accused has raised a probable defence and proved the same before the court by eliciting material facts in the evidence of PW.1 and there was no existence of legally recoverable debt and therefore, question of issuing cheque in question towards legally recoverable debt does not arise and the claim of the complainant is also barred by time and hence, the accused is not liable to pay any cheque to the complainant and the accused is entitled to an order of acquittal.
33. In support of his submission, the learned counsel for the accused has relied upon a decision reported in 2022 ACD 846 in between Prakash Shetty Vs. Venkatesh., wherein while dealing with the provision of Sec.138 of NI Act, the Hon'ble High Court of Karnataka has pleased to held that when the complainant has not produced the documents to show that he is having financial capacity to pay such a huge amount, then the complainant cannot claim to be the holder of cheque in due course and the accused is entitled to an order of acquittal. On the same principles, the learned counsel for the accused has also relied upon a decision reported in 2022 ACD 171 (KAR) in between Murtuja Khajapatel Bagali Vs. Zakeer Ibrahimsab Indikar.
34. The learned counsel for the accused has also relied upon a decision rendered by the Hon'ble Supreme Court in Crl.Appeal No.1497/22 in between Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel., wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that Sec.138 of NI Act creates a deeming offence and safeguard the drawer of cheque by providing them the opportunity of responding to the notice and an opportunity to repay the cheque amount on his condition stipulated in the provisions which need to be fulfilled in addition to the ingredients in the main provision of sec.138 of NI act.
35. The learned counsel for the accused has also relied upon a decision rendered by the Hon'ble High Court of Karnataka in Crl. Appeal no.100296/2016 in between Vishal Vs. prakash Kadappa Hegannawar., wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble High Court has pleased to held that when complainant has not clearly stated with regard to the date of payment of the alleged loan to the accused either in his complaint or in his evidence, it is also hard to believe that after giving such a huge amount to a person, who is not so very close and the complainant being a businessman that he would part with such a huge amount without charging any interest, all these facts raises a doubt in the mind of the court as to whether such a transaction has existed or happened.
36. The learned counsel for the accused has also relied upon a decision rendered by the Hon'ble Supreme Court in Crl.Appeal No.1012/1999 in between M.S.Narayana Menon @ Mani Vs. State of Kerala & Anr., wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that when the existence of debt in respect of alleged part of the amount has been not proved, then the defence has to be accepted as probable and if the defence is acceptable as probable, the cheque cannot be held to have issued in discharge of the debt.
37. The learned counsel for the accused has also relied upon a decision reported in 2019 ACD 290 in between Sami Labs Vs. M.V. Joseph., wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble high Court of Karnataka has pleased to held that for marking dishonour of cheque as an offence, issuance of cheque must be as a whole or in part of any debt or other liability.
38. The learned counsel for the accused has also relied upon a decision reported in 2018 ACD 878 (KAR) in between Smt. Manjula V. Vs. Smt. Manjula B.T., wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble high Court of Karnataka has pleased to held that when nothing to show that the complainant had such huge amount at the time of advancing loan and not in a financial position to lend money, then it amounts to rebuttal of presumption and the accused is entitled to an order of Acquittal. On the same principles, the learned counsel for the accused has also relied upon a decision reported in 2016 ACD 221 (KAR) in between A.M. Govindegowda Vs. B.V. Ravi.
39. The learned counsel for the accused has also relied upon a decision reported in 2015 ACD 841 (SC) in between K.Subramani Vs. K.Damodara Naidu., wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble Supreme Court has pleased to held that when the complainant has failed to prove that there is legally recoverable debt payable by the accused to him, then the accused is entitled to an order of Acquittal. On the same principles, the learned counsel for the accused has also relied upon a decision reported in 2015 ACD 709 (KAR) in between B.M. Umesh Vs. S.B. Muniyappa and Crl.Appeal No.2043/2013 in between John K. Abraham Vs. Simon C. Abraham & Anr.
40. The learned counsel for the accused has also relied upon a decision rendered by the Hon'ble High Court of Karnataka in Crl Appeal No.952/2009 in between Sri.H.Manjunath Vs. Sri.A.N. Basavaraju., wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble high Court of Karnataka has pleased to held that when except the signature of other entries are in different hand writing, different ink and made at different time, then it is difficult to accept the version of the complainant and therefore, the accused is entitled to an order of acquittal.
41. The learned counsel for the accused has also relied upon an decision reported in ILR 2009 KAR 2331 in between B. Indramma Vs. Sri.Eshwar., wherein while dealing with the provisions of Sec.138 of NI Act, the Hon'ble High Court of Karnataka has pleased to held that in order to raise a presumption in favour of the complainant, he has to establish the fact that it was he who received from the accused, the cheque in question and it is only after this fact is established by the complainant, presumption can be raised that the cheque was issued by the accused towards discharge of whole or in part or any other debt or other liability. On the same principles, the learned counsel for the accused has also relied upon a decision reported in LAWS (KAR) 2015 2 1 in between B.Shivaram Vs.M.V. Venkatesh.
42. Now keeping the arguments canvassed by the learned counsel for both sides and the principles laid down in the above cited decisions in mind, let us consider as to whether the accused could able to raise a probable defence and could able to prove the same before the court and whether the accused could able to rebut the statutory presumptions available in favour of the complainant under the provisions of Sec.118 and 139 of NI Act.
43. It is the specific evidence of the accused before the court on oath that he has availed a loan of Rs.2 Lakhs from the complainant on 15.5.2015 for which the complainant has obtained two blank signed cheques and a blank signed stamp paper and he has deducted 20% of the amount towards interest and paid only Rs.1,60,000/- out of which he has already paid Rs.1 Lakh after four months from the date of availment of loan and he is due for Rs.1 Lakh only and not due for any other amount and therefore, he is not liable to pay any cheque amount.
44. The oral evidence of DW.1 before the court on oath remained unchallenged by the complainant. Because, the complainant did not choose to cross examine DW.1 to disprove the probable defence taken by the accused or to disprove the oral evidence of DW.1.
45. The complainant all the while in his complaint and in his affidavit in chief examination has stated that the accused has approached him in the year 2016 seeking loan for renovation of his house and therefore, he has paid amount of Rs.4,85,000/- to the accused and the accused has issued a cheque in question towards repayment of said loan amount and the said cheque was dishonoured for want of sufficient funds in the account of the accused and therefore, he has issued a legal notice on 25.3.2017 which has been served and therefore, he has presented the complaint before the court.
46. But the notice vide Ex.C.3, complaint and affidavit in chief examination of PW.1 is very much silent as to the exact date on which the accused has approached him and the exact date on which he has paid that much of amount of Rs.4,85,000/- to the accused. It is pertinent to note here that the complaint, affidavit in chief examination of PW.1 and the notice is very much silent about DKR Associates being run by the complainant and other transactions of DKR associates. But, P.W.1 in cross examination has stated that he never done any financial transaction in the name of DKR Associates. Even according to complainant that there is a mistake crept in the complaint with respect to year of lending of loan for which there is absolutely no explanation in the evidence of PW.1. Even according to PW.1 that the accused never asked any loan in the year 2016, but he has asked the loan in the year 2015 which is highly contrary to the case made out by the complainant and documents placed on record.
47. PW.1 has not specifically denied the fact that the accused has availed a loan of Rs.2 lakhs on 15.5.2015 by way of cheque. But he further stated that on the same day, the accused has availed a loan of Rs.4,85,000/- which has not been substantiated before the court. It is also admitted by PW.1 that the accused has issued two cheques and he has obtained the two cheques and he himself filled the cheque. At one point of time, PW.1 has stated that he has paid Rs.4,85,000/- to the accused at Bangalore. But, at another point of time, PW.1 has stated that he has paid Rs.3,58,000/- to the accused at Mysore. So, it is crystal clear that the complainant has kept on changing his version from stage to stage and thereby laid on the material facts before the court. Even according to PW.1 that the cheque in question produced before the court was in respect of Rs.2 lakhs. So the defence of the accused that, he has availed loan of Rs.2 Lakhs only on 15.5.2015 is more probable than that of the case made out by the complainant.
48. Even according to PW.1 that he has lodged a complaint against the accused at Mysore and he has also filed a complaint against the accused in Bangalore in respect of two cheques issued by the accused. According to PW.1 that the cheque in dispute has been issued in his individual capacity and he has not disclosed about the DKR associates in his complaint. It is also admitted by PW.1 that the accused has availed a loan of Rs.2 Lakhs on 15.5.2015 by way of cheque and the said cheque was belongs to DKR Associates and he has not disclosed the same either in his complaint or in his notice or in his affidavit in chief examination and he has produced the document at Ex.C.6 in respect of availment of loan of Rs.2 Lakhs to the accused by way of cheque.
49. PW.1 has stated that he do not know the exact source of his income in the year 2015 and he has not disclosed the loan lent to the accused in his income tax returns and not disclosed the loan lent by the DKR Associates in the income tax returns and he feigned his ignorance to the suggestions that the accused has not availed any loan in the month of May 2016 and he has not paid any loan to the accused in the month of May 2016. So, all these materials facts elicited in the evidence of PW.1 would create a doubt about the existence of legally recoverable debt of Rs.4,85,000/- including issuance of cheque in question towards legally recoverable debt.
50. On appreciation of the entire oral and documentary evidence placed on record, it is found that the accused has availed a loan of Rs.2 Lakhs from the complainant on 15.5.2015 and the complainant has obtained two blank signed cheques and blank signed stamp paper from the accused and the complainant has deducted interest for the loan amount and the accused has already paid Rs.1 Lakh to the complainant and these facts have not been disclosed by the complainant either in his complaint or in his affidavit in chief examination or in his notice. The materials on record do not establish the lending of loan of Rs.4,85,000/- by the complainant to the accused and do not establish the issuance of cheque in question towards legally recoverable debt of Rs.4,85,000/-.
51. A perusal of cheque vide Ex.C.1 would goes to show that the signature and the contents of the cheque are in different hand writing and in different ink colour. Therefore, the defence taken by the accused that the signed blank cheques and signed blank stamp papers were obtained by the complainant and later on it was filled by the complainant is seems to be more probable than that of the case made out by the complainant.
52. From oral and documentary evidence placed on record, it is not shown by the complainant as to how an amount of Rs.4,85,000/- was due as on 15.3.2017. The alleged loan was in the year 2016. But the document at Ex.C.7 is dt: 15.5.2015. On the contrary, the cheque is dt: 15.3.2017. Therefore, the complainant ought to have established by producing the relevant documents that the amount mentioned in the cheque was actually due as on the date of issuance of cheque in question on 15.3.2017 and towards legally recoverable debt, the accused has issued the cheque in question vide Ex.C.1. But the materials placed on record do not establish that the amount mentioned in the cheque was actually due from the accused as on the date of issuance of cheque in question.
53. It is pertinent to note here that the liability and security are two distinct entities and both cannot be mixed or acted upon simultaneously. If the act of a person in discharge of liability is not done, then the security comes into picture. If the act in discharge of liability is done, then the security would not have any legal force. In the present case, it is forthcoming in the evidence that the accused has availed a loan of Rs.2 Lakhs from the complainant on 15.5.2015 out of which he has already paid Rs.1 Lakh and the complainant has obtained two blank cheques and also a blank signed stamp paper. Under these circumstances, it cannot be said that the accused has issued the cheque in question towards the legally recoverable debt.
54. Therefore, the arguments canvassed by the learned counsel for complainant that the complainant has proved the guilt against the accused by adducing oral evidence of PW.1 and by producing documentary evidence at Ex.C.1 to C.7 and the accused has issued the cheque in question towards the legally recoverable debt and therefore, the complainant is entitled for cheque amount of Rs.4,85,000/- U/s.138 of NI Act and the accused has failed to raise a probable defence and failed to prove the same before the court is not sustainable under law and therefore, cannot be accepted.
55. But on the other hand, there is some legal and considerable force in the submission of learned counsel for the accused that the evidence adduced by the complainant do not establish the lending of loan of Rs.4,85,000/- and issuance of cheque in question for legally recoverable debt of Rs.4,85,000/-, but the oral evidence adduced by accused would indicate that the accused has availed only Rs.2 Lakhs and the complainant has obtained blank signed cheque and blank signed stamp paper and later on it was filled by the complainant and therefore, it cannot be said that the accused has issued the cheque in question towards legally recoverable debt and the complainant has failed to prove the lending of loan of Rs.4,85,000/- and issuance of cheque in question towards legally recoverable debt and therefore, the accused is not liable to pay the cheque amount and the decisions cited in this regard are also applicable to the present facts and circumstances of the case.
56. 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. Therefore,I hold that the complainant has failed to prove the offence punishable U/s.138 of N.I.Act against the accused. Hence, I answer point No.1 in the Negative.
57. POINT NO.2: In view of my findings on point No.1, I proceed to pass the following:-
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 hereby acquitted for the offence punishable U/sec.138 of N.I.Act. The bail bonds 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.
The cash surety of Rs.4000/-
deposited by the accused vide Q.No.1032/2018 dated 13.04.2018 shall be refunded to the accused after the appeal period is over with due identification and also on proper verification.
(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 2 nd December 2022).
(N.M.RAMESHA) XVI ACMM, Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.Ravindra Mayanna
2. List of documents exhibited on behalf of the Complainant:-
Ex.C.1 : Original Cheque.
Ex.C.1(a) : Signature of the Accused.
Ex.C.2 : Bank Memo.
Ex.C.3 : Office copy of Legal Notice.
Ex.C.4 : postal receipt
Ex.C.5 : Postal acknowledgement
Ex.C.6 : pass book
Ex.C.7 : On demand promissory note and
Consideration receipt.
Ex.C.7(a) &(b) : Signatures of the accused
3. List of witness/s examined on behalf of the Accused:-
DW-1 : S.M.Shankarappa
4. List of documents exhibited on behalf of the Accused:-
Nil (N.M.RAMESHA) *hkr* XVI ACMM, Bengaluru City.
.