Bangalore District Court
Mallikarjun vs Ragahavendra.H on 4 December, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 4th day of December - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.6420/2019
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Mallikarjun,
S/o.Basavarajappa Kori,
Aged about 56 years,
R/at No.2764, 1st Floor,
8th G Cross, 14th Main, RPC Layout,
Vijayanagar, Bengaluru-40.
(Rep. by Sri.Sharanagouda S Patil, Adv.)
V/S
Accused : Ragahavendra.H,
Aged about 50 years,
Proprietor, Crane & Hoist Industry,
No.SPL-9, KSSIDC Indl. Estate,
Koteshwara-576 222,
Udapi District.
(Rep.by Sri.R.Ravi, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 04.12.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.6420/2019
JUDGMENT
The complainant has presented the instant complaint against the accused on 13.02.2019 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.50,000/-.
2. The facts given raised to this private complaint are as follows:
The complainant has pleaded that, the accused was the proprietor of Crane Hoist Industry at Koteshwara of Udapi District and he knew to him from past 10 years and he has been honest and good human behavior person. Since the accused run the industry was known to the complainant past 7 years, hence, the complainant trusted on the accused and his family members.
The complainant has averred that, accused had approached him for hand loan of Rs.50,000/- for industry purpose and promised to repay the same within a month and accused had given post dated cheque for Rs.50,000/- at the time of getting hand loan from the complainant. The complainant in order to help the accused got paid the said hand loan amount on 03.04.2018 by way of cash. The accused had received and acknowledged the receipt of the said loan from the complainant.
Judgment 3 C.C.No.6420/2019 The complainant has further alleged that, the accused had given post dated cheque bearing No.080078 dated:17.06.2018 for sum of Rs.50,000/- drawn on IDBI Bank, Kundapura, Udupi District, in favour of complainant towards discharge of legally recoverable debt to the complainant. While issue the said cheque, he assured the complainant would arrange sufficient funds in his bank account to honour the said cheque.
The complainant has further contended that, on the request and instructions of the accused, he presented the said cheque for encashment through his banker viz., Canara Bank, Byatarayanapura Branch, Bengaluru. But on seeing the memo dated:15.09.2018, he got shock and surprise the same came to be dishonoured for the reasons "Funds Insufficient". Immediately, he informed the said fact to the accused and demanded him to pay the amount covered under the cheque. But he failed to pay the cheque amount. Hence, he got issued legal notice through his counsel to the accused on 14.01.2019 and the same came to be served on accused on 17.01.2019 and in turn, he got issued reply notice on 23.01.2019 with untenable grounds, but not paid the amount covered under the cheque. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
Judgment 4 C.C.No.6420/2019
3. After receipt of the private complaint, this court took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to him, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P6. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and answer given by him was recorded.
In this case, the accused not choosen to enter into witness box and also not produced any document.
7. I have heard the arguments of both side counsels.
Judgment 5 C.C.No.6420/2019
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves that, he complied the mandatory requirements enumerated under Section 138(b) of Negotiable Instruments Act?
2) Whether the complainant proves beyond the reasonable doubt that, he paid sum of Rs.50,000/-
on 03.04.2018 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.080078, dated:17.06.2018 for sum of Rs.50,000/- drawn on IDBI Bank, Kundapur, Udupi District?
3) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
4) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : In the Negative Point No.4 : As per final order, for the following:
REASONS
10. POINT No.1: The PW.1 to prove his case choosen to examined himself and filed sworn affidavit while in view of oral sworn statement and same has been consider as his chief-
Judgment 6 C.C.No.6420/2019 examination, and produced the documents at Exs.P1 to P6, they are:
a) Ex.P1 is the cheque bearing No.080078 issued by the accused for sum of Rs.50,000/-
dated:17.06.2018, drawn on IDBI Bank, Kundapur, Udupi District.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:15.09.2018.
d) Ex.P3 is the Legal Notice dated:12.01.2019.
e) Ex.P4 is the Postal receipt.
f) Ex.P5 is the postal acknowledgment card and
g) Ex.P6 is the reply notice dated:23.01.2019 issued by accused through his counsel to the complainant counsel by denying the entire averments of legal notice at Ex.P3.
11. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citations and relied upon same, they are;
a) (2014) 10 SCC 713
b) (2005) 4 SCC 417
c) (2019) 5 SCC 418
12. After detailed cross-examination done by the advocate for accused to the PW.1, the complainant got closed his side. Thereafter, whatever the incriminating evidence made against the Judgment 7 C.C.No.6420/2019 accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and gave his statement that, he was doing Crane Hoist Industry at Koteshwara, but categorically denied the knowingness of complainant and alleged borrowing of loan of Rs.50,000/- and got issuance of questioned cheque at Ex.P1 for repayment of the said loan amount. But he specifically stated that, he does not know the complainant and as alleged by the complainant, he not borrowed any loan from him nor issued the questioned cheque at Ex.P1 for discharge of any liability. He was no need to borrow the loan of Rs.50,000/- and the hand writing with regard to the fillings made in the Ex.P1-cheque except admitted signature are not of him. He does not know how the questioned cheque came to the custody of the complainant and he not liable to pay any amount. Hence, he prayed for his acquittal. He also stated that, he not choosen to lead any defence evidence. In view of the same, the accused has not entered into witness box and also not produced any documents.
Apart from, the accused through his counsel has produced the citations and relied upon same. They are:
a) (Crl.) case No.212-216 of 2000 Judgment 8 C.C.No.6420/2019
b) Crl.M.C.1189/2018 & Crl.M.A.4326/2018 (stay)
13. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
However, it is an appropriate to cite the decisions of the Hon'ble Supreme Court in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s. Dattatraya G Hegde) and 2010 AIR SCW 2946 (Rangappa V/s. Mohan).
"The accused need not enter into witness box and he could rebut the presumption envisage under Section 139 of Negotiable Instruments Act by setting up a probable case. As such, there is no strict rule that, the accused should enter into the witness box in support or proof of his defence. The accused has got every right to prove his defence from the cross- examination of PW.1 or the materials already brought on record. It is also held that, the standard of evidence be to led by the accused is preponderance of probabilities and no proof beyond reasonable doubt. On the contrary, for the complainant he should prove his case beyond all reasonable doubt".
14. As per the said dictum, the accused need not require to enter in to the witness box to prove his probable defence, but he can prove his defence by way of cross-examining the PW.1 and Judgment 9 C.C.No.6420/2019 relied upon the documents of the complainant. From the point of above dictum, the non entering into the witness box by the accused is not a ground or hindrance to his probable defence. Therefore, whatever the defence placed by the accused by way of oral say through PW.1 is to be appreciated.
15. On going through the rival contentions of the parties, it made clear that, the accused in this case has seriously attack on the claim put forth by the complainant. On going through the materials it discloses, the complainant has brought the present case against the accused based on the questioned cheque at Ex.P1. Therefore, it is needs to draw the presumption as per Sections 118 and 139 of Negotiable Instruments Act. As per Section 118(g), it shall be presume that, unless the contrary is prove, the holder of the cheque, the complainant received the cheque for discharge of legal liability. This presumption is rebuttable. Accordingly, Sections 139 and 138 of Negotiable Instruments Act, it also requires to presume that, cheque was drawn for discharge of liability of drawer, it is presumption under law. Therefore, it made clear that, by virtue of the above said sections stated, it made clear that, it requires to draw statutory presumption in favour of complainant that, in respect of discharge of existence of legally recoverable debt, the accused got issued Judgment 10 C.C.No.6420/2019 the Ex.P1-cheque unless and until contrary prove. Therefore, as per those sections, it made clear that, it is the initial onus on the accused to prove his case based on the principles of 'Preponderance of Probabilities'.
It is require to cite the decision reported in AIR 2010 SCC 1898, in a case between Rangappa V/s Mohan. Wherein, the Hon'ble Apex Court pleased to observe that, the obligation on the prosecution may be discharged with the help of presumption of law or facts unless the accused adduce evidence showing the reasonable probability of non-existence or presumed fact. Wherein also it was pleased to observed that, the accused can prove the non-existence of consideration by raising probable defence. If accused is able to discharge the initial onus of proof of showing that, the existing of consideration was improbably or adverse or the same was illegal, the onus would shift to the complainant, who will be obliged to prove it as a matter of fact, and upon its failure to prove would dis-entitle his to grant the relief on the basis of Negotiable Instruments Act. The burden on the accused of proving the non-existence of consideration can either direct or by bringing on record the preponderance of probabilities by referring to the circumstances upon which, he relies could bare denial of passing consideration apparently does not appears to be Judgment 11 C.C.No.6420/2019 any defence. Something which is probable has to be brought on record for getting benefit of shifting the onus of proving to the complainant. To disprove the presumption, the accused has to bring on record such facts and circumstances upon the consideration of which the court may either believe that, consideration did not exist or its non-existence was so probable that, a prudent man would, under the circumstances of the case, act upon that, it did not exist. Therefore, it made clear that, the accused need to take the probable defence mere denial is not enough.
That apart, in a decision reported in ILR 2006 KAR 4672, in a case between J.Ramaraj V/s Hiyaz Khan. Wherein, it was pleased to observed that, mere denial of issuing cheque, whether is sufficient to discharge the initial burden is to be looked into. In that dictum, it was pleased to held that, mere denial of issuing cheques would not be sufficient as it is time and again noted that, once the cheque issued duly signed by the accused, the presumption goes against him as per Section 139 of Negotiable Instruments Act.
16. On going through the provisions referred supra, it made clear that, whereas the presumption must prove that, guilt of Judgment 12 C.C.No.6420/2019 accused beyond the reasonable doubt. The standard or proof so as to prove a defence on the part of the accused is 'Preponderance of Probabilities'. Inference of 'Preponderance of Probabilities' can be drawn, not only from the materials brought on record by parties, but also by reference to the circumstances upon which he relies.
17. On going through the above authorities as well as dictums, it made clear that, it is the initial burden on the accused to prove his probable defence in order to rebut the statutory presumption as well as the case put forth by the complainant. On going through the rival contentions of the parties, during the course of cross of PW.1 as well as addresses oral arguments by the advocate for accused strongly attack on the claim of complainant including the maintainability of the present case by virtue of non- compliance of mandatory provision. During the course of cross of PW.1, it was suggested by the advocate for the accused that, the present complaint filed by the complainant is barred by time. In the cross-examination of PW.1 it was elicited from the mouth of him that, the endorsement was issued by his banker regarding dishonour of cheque was on 15.09.2018 and the complainant gave legal notice on 14.01.2019. Thereby, he categorically admitted that, the notice was issued by the complainant after Judgment 13 C.C.No.6420/2019 lapse of 4 months. Thereby, the PW.1 has categorically admitted, whatever the legal notice got issued by his advocate as per Ex.P3 dated:12.01.2019 against the bank memo dated:15.09.2018. The advocate for the complainant though contended, present case is maintainable as he filed present within time, nothing has whispered as to non compliance of Section 138(b) of Negotiable Instruments Act. The accused has not disputed as to filing of present case after issue of legal notice. But strongly defended, within 30 days of dishonour of the cheque notice not issued. In that regard, non comply mandatory provision no satisfactory explanation is forthcoming from the side of the complainant. Thereby, it prima-faice discloses, there is the gap of 4 months in issuing reply notice as against the mandatory provision enumerated under Section 138(b) of Negotiable Instruments Act.
Section 138(b) of Negotiable Instruments Act, runs thus:
"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 Judgment 14 C.C.No.6420/2019 regarding the return of the cheque as unpaid".
18. As per the said provision it made clear that, the complainant shall issue demand notice within 30 days from the date of receipt of information of dishonour for cheque from his banker. The PW.1 in his cross-examination categorically admitted that, he got issued banker slip as per Ex.P2 on 15.09.2018 and admittedly got issued legal notice on 12.01.2019, which is after lapse of 4 months, which case against the Section 138(b) of Negotiable Instruments Act. Thereby, at the outset the complainant has utterly failed to comply the mandatory provision under Section 138(b) of Negotiable Instruments Act. In that ground the very case filed by the complainant is not maintainable, as he not complied the required mandatory provision to maintain the present case under Section 138 of Negotiable Instruments Act. Thereby, the accused has successfully proved the point No.1 as to non-maintainability of the case. Hence, the Point No.1 is answered in the Negative.
19. POINT NOs.2 and 3: Since both these points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
Judgment 15 C.C.No.6420/2019 No doubt, as discussed in Point No.1 at the out set the complainant has utterly failed to prove the maintainability of the present case against the accused in view of non-compliance of Section 138(b) of Negotiable Instruments Act. However, in this case, the accused not only attack on the claim of complainant on the said ground alone, but also contended, other ground by way of cross-examining the PW.1. Therefore, in order to avoid future legal complications it requires to appreciate the merits of the case. Accordingly, the present points have taken for discussion.
20. In the complaint the complainant has pleaded, he knew the accused, as he run Crane Hoist Industry at Koteshwara of Udupi District and as known to each other, since the complainant has faith and belief on the accused, on the request made by him, he gave Rs.50,000/- as hand loan for the purpose of his industry. On going through the pleading, the complainant has not narrated on which date, the accused had approached him, where he came and approached his also not been pleaded. On going through the cause title address made mentioned in the complaint, it revealed that, the complainant is residing at Vijayanagar of Bengaluru and accused was resides at Koteshwara of Kundapura Taluk and Udupi District. Therefore, the accused came away from the said place by traveling more than 450 kilometers and asked the Judgment 16 C.C.No.6420/2019 complainant seeking for meager loan amount, it is the complainant needs to explain, where, when, at what time and what necessity the accused came away from there and requested the complainant for the said loan needs to be plead and explain in his cross-examination, as the accused has attack on the very claim put forth by the complainant. In that regard, it requires to appreciate the evidence of PW.1.
21. By way of suggestion, the accused has taken up the defence that, the accused gave the questioned cheque at Ex.P1 to the suppliers of goods to the accused in the year 2013 and the complainant by collecting the same through the said suppliers and got misused the same and filed the false case. Even when suggested so by the advocate for the accused, the complainant has not choosen to explain, under which circumstances the accused has gave the questioned cheque to him. At least, he needs to explain in the line of his pleading, except simply denial, nothing has explained by him. If at all, as he alleged, the accused was requested, it is him to disclose when the accused came to him and requested for the loan and how much time the complainant took for arrange the said amount and gave it to the accused. In the pleading he stated that, on 03.04.2018 he gave Judgment 17 C.C.No.6420/2019 loan amount to the accused by way of cash and on the same date itself the accused gave post dated cheque at Ex.P1.
22. If at all, the accused requested for the loan from the complainant and borrowed it on cash on 03.04.2018 by gave questioned cheque at Ex.P1, it needs to be explain by the complainant. But in his cross-examination he deposed that, accused gave cheque at Ex.P1 on 03.04.2018, but he cleverly deposed, he does not remember, where he had issued, as he oftenly used to met the accused at Mangalur and some other place. If at all, the complainant and accused were had access as such in some other place, was it necessary to hold the Ex.P1- cheque by the accused and gave it to the complainant somewhere else other than the alleged borrowal place is not been explained. The PW.1 if at all, lent the loan to the accused on the very particular day, if accused got issued the questioned cheque to him, definitely, it should be only one place and it require to be explain by the complainant, but for the reasons better known to him, he failed to disclosed whether he got received the questioned cheque and transacted the alleged loan amount, thereby, it creates doubt as to the bonafidness of the complainant.
Judgment 18 C.C.No.6420/2019
23. That apart, during the course of cross of PW.1, it was the PW.1 needs to explained, how he mobilized the fund, which enable him to pay loan to accused. In his cross-examination he deposed that, admittedly, he not produced any documents, as to possess that much amount in his hand. He deposed, that much amount he mobilized through his friends, relatives as well as amount kept in his house. By deposing so, he try to explain from 3 sources, he mobilized fund of Rs.50,000/-, therefore, he claimed that, he mobilized the same through his friends and relatives. If so, who are those is to be explain and examine by him, but for the reasons better known to him not disclosed nor examined any one of them to substantiate his contention. Thereby, the accused also successfully proved that, complainant has no financial capacity and the same has been admitted by the PW.1 in the witness box deposing that, he mobilized fund through friends and relatives. If at all, as he projected, mobilized the fund as such from his relatives, friends as well as kept money in his house definitely, he must have to explain, what quantum of money so adjusted, in that regard, no acceptable explanation is forth coming from him. Thereby, the accused has proved that, the complainant has no financial capacity to lent the meager loan of Rs.50,000/- also.
Judgment 19 C.C.No.6420/2019
24. Unless the complainant established the factum of possess physical money of Rs.50,000/-, as he projected, question of lent to the accused as alleged on 03.04.2018 by way of cash does not arise. First of all, he failed to demonstrate from whom he mobilized fund. At least he could have examine the persons from whom, he borrow or arranged the fund, but for the reasons better known to him, he not did so, is one of the strong doubtful circumstances as to the possession of requisite fund of Rs.50,000/- in his hand.
25. If at all, as he alleged on 03.04.2018 he lent cash of Rs.50,000/- to the accused, it is him to demonstrate, where he lent either he brought the money from Bengaluru and went to Koteshwara and gave it to him or visa-verse nothing has been disclosed. If at all, he lent loan as such to the accused definitely, necessary documentary evidence or at least in the presence of witnesses, he could have been transacted, but he failed to do so is also one of the strong doubtful circumstances made out by the accused to disbelieve the version of the PW.1 and his case.
26. During the course of cross of PW.1, the advocate for accused has suggested that, the cheque of the year 2013, it was manipulated by the complainant by made material alteration as 18 Judgment 20 C.C.No.6420/2019 against 13. In that backdrop, the defence suggested to the PW.1 that, accused gave the questioned cheque to his goods suppliers in the year 2013, the same got misused by the complainant through the goods suppliers. Thereby, contending that, the said cheque was of the year 2013, the same has been misused by the complainant. In that regard, no suggestion was made to PW.1 as to manipulation of the year 13 into 18. However the advocate for accused while addressed the argument, draw the attention of this court on the material alteration made on the cheque with regard to the year. On close perusal of the Ex.P1-cheque it discloses, the date:17.06.2018. No doubt, on seeing through bare eyes, in the year 18, numeral 8 appears to be over writing. On close perusal of the year with the assistance of magnified glass, it clearly manifest that, to the bare eyes that, the year 13 very particularly number '3' is altered by converting into '8'. Even on seeing the alterations it discloses, 3 has apparently disclose and effort made by the complainant, convert it in to '8' is also seen. In that regard under compelling circumstances, the said alteration is made, the complainant has not been satisfactorily explained. Therefore, it made clear that, the accused has successfully proved that, the cheque has been materially altered the year '13' in to '18'. For Judgment 21 C.C.No.6420/2019 making material alteration as per Section 87of Negotiable Instruments Act, the consent of the drawer is very much essential.
Section 87 of Negotiable Instruments Act, runs thus:
"Any material alteration of a negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties."
Comments Every unsubstantial alteration is not a material alteration; it is only such alteration as would adversely affect the interests of the other side which can be called material; where in a promissory note, the rate of interest was left blank and was filled up later without the consent of the promiser, it will be a material alteration invalidating the instrument: It was so held in a decision reported in AIR 1982 Karn. 226 (D.B) in a case between Mysore State Road Transport Corporation V/s. Somashankar.N.R. Re-validating cheque:- The first paragraph of S.87 makes it clear that, the party who consents to the alteration as well as the party who made the alteration are disentitled to complain against such alteration, e.g., if the drawer of the cheque himself altered the cheque for validating or re-validating the same instrument, he cannot take advantage of it later Judgment 22 C.C.No.6420/2019 by saying that the cheque became void as there is material alteration thereto. Further, even if the payee or the holder of the cheque made the alteration with the consent of the drawer thereof, such alteration also cannot be used as a ground to resist the right of the payee or the holder thereof. It is always a question of fact whether the alteration was made by the drawer himself or whether it was made with the consent of the drawer. It requires evidence to prove the aforesaid question whenever it is disputed. It was so held in a decision reported in AIR 2002 S.C 38 in a case between Veera Exports V/s. T.Kalavathy.
27. As per Section 87 of Negotiable Instruments Act, on comparative perusal of the material alteration apparently found in Ex.P1-cheque as to altered the year, it clearly manifests that, the said alteration is against the interest of the accused. If at all, accused had issued the questioned cheque and altered the date, it is the complainant needs to explain or at least could have been obtain the counter signature on the said area, but the same is lapse.
28. On going through the Ex.P1-cheque it clearly manifest that, the year '18' has been clearly manipulated by changing number '3' in to '8', which is against the interest of the accused. Therefore, as repeatedly suggested by the accused during the course of Judgment 23 C.C.No.6420/2019 cross of PW.1, his contention has to be accepted that, the said cheque was issued by the accused in the year 2013 to his goods suppliers, but it is the complainant as to rebutted the said factual circumstances, but he utterly failed to demonstrate the same. If at all, the accused got issued and executed the Ex.P1-cheque in favour of the complainant, definitely, it should be in the same hand writing, but the Ex.P1 the admitted signature at Ex.P1(a) and other writings are made in different hand writings and ink. Which leads to draw the adverse inference against the complainant that, the accused has not executed the same.
29. That apart, the said cheque on both front and rare portion discloses, the admitted signature of the accused. If at all, accused got issued and executed the cheque in favour of complainant definitely, his name should be appear on the front page and at the rare portion it is the drawee needs to affix his signature while present the said cheque. The drawer needs to affix his signature at rare portion, if he wishes to self withdraw money. Therefore, the signature found on both side of the accused leads to draw the inference that, the cheque was not issued by the accused to the complainant, it was kept with him for his own purpose, but how the said cheque came to the custody of the complainant, it creates Judgment 24 C.C.No.6420/2019 strong doubtful circumstances and the same is revealed from the evidence of PW.1 as well as pleading.
30. The complainant as discussed earlier, to see the chance of claim money play the card of filing the present case. If at all, it was his genuine claim based on the Ex.P1-cheque definitely, he would not waste time for 4 months, in issue legal notice to the accused. Since, his claim is not genuine,he try to see the chance of making use of accused cheque secured through the unexplained source, therefore, the very approach of the complainant is to be depricated. Though, accused has attack on the claim of complainant including the material alteration of the cheque, the complainant not opt for refer the document for FSL for know the genuineness of the material alteration. Therefore, it is the consider opinion of this court that, the accused as defended in the present case, by way of caused reply at the earliest point of time as per Ex.P6 as well as attack on the claim of PW.1 by way of cross-examining, he successfully demonstrate that, he not borrowed the alleged loan of Rs.50,000/- from the complainant. Moreover, he was able to demonstrate that, the complainant had no financial capacity and it was the year of '2013' and the complainant got misused the said cheque secured through unexplained source and projected the present case is very bad in Judgment 25 C.C.No.6420/2019 the eye of law. The complainant has utterly failed to rebut the defence placed by the accused. Though by virtue of Section 139 of Negotiable Instruments Act, reverse burden casted on the complainant, but he failed to demonstrate the same.
It is well worthy to cite the decision reported in ILR 2009 KAR 1633 (Kumar Exports V/s. Sharma Carpets). Wherein, it was pleased to held by the Hon'ble Apex court that:
(D) Negotiable Instruments Act, 1881, Sections 118, 139 and 138 - Presumption under Sections 118 and 139 - How to be rebutted - Standard of proof required rebuttal - HELD, Rebuttal does not require proof beyond reasonable doubt -
Something probable has to be brought record - Burden of proof can be shifted back to complainant by producing convincing circumstantial evidence - Thereafter the said presumption arising under Section 118 and 139 case to operate - To rebut said presumption accused can also rely upon presumptions under Evidence Act, 1872 Section 114 (common course of natural even human conduct and public and private business) -
Evidence Act, 1872 - Section 114 - Presumptions of fact under".
31. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused. As Judgment 26 C.C.No.6420/2019 per the said dictum, on account of the accused has successfully rebutted the statutory presumption as well as the facts and circumstances narrated by the complainant, it is the reverse burden on the complainant, but he utterly failed to discharge the same and thereby, the accused has made out strong doubtful circumstances to disbelieve the case of complainant. Accordingly, the defence of accused is to be accepted that, the complainant though had not financial capacity to lend the alleged loan on account of secure the questioned cheque through unexplained source pertaining to the year 2013 got misused the same by filing the present case. Hence, the accused is entitled for benefit of doubt for acquittal.
32. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. While appreciate the materials available on record, this court has humbly gone through the decision relied by both parties apart from the following decisions.
In the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
Judgment 27 C.C.No.6420/2019 "Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".
33. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused admits that, cheque bares his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.
At this stage, this court also relies upon another decision reported in AIR 2007 NOC 2612 A.P. (G.Veeresham V/s. Shivashankar and another). Wherein, the Hon'ble Court has held as under:
"Negotiable Instruments Act (26 of 1881). S. 138 Dishonour of cheque - Presumptions available to complainant under S. 118 and S. 139 of Act - Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that, accused is liable to Judgment 28 C.C.No.6420/2019 rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
34. The principle of law laid down in the above decisions is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.50,000/- to the accused. Thus, that fact itself is sufficient to infer that, accused is able to rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
35. In this case on hand also, on the lack of the complaint failed to prove the alleged loan transaction, it can gather the probability that, he is not liable to pay Ex.P1 cheque amount of Rs.50,000/- and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that, the accused has borrowed the cheque amount and he is legally liable to pay the same. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken his Judgment 29 C.C.No.6420/2019 defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.50,000/-. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Apart from that, in a decision reported in, AIR 2011 (NOC) 75 (KAR) (Amzad PashaV/s. H.N.Lakshmana). Wherein, it was pleased to held by the Hon'ble Apex court that:
(B) Negotiable Instruments Act (26 of 1881). S. 138 - Dishonour of cheque - Accused alleged to have taken loan from complainant - Complainant has not placed any evidence to show that he had financial capacity to lend substantial amount of Rs.4,50,000/- - Admittedly no document evidencing the loan transaction has come into existence - Case of complainant that he had lent Rs.4,50,000/- to the respondent is highly impossible and not acceptable - None of witnesses in presence of whom loan amount was paid by complainant examined by complaint -
Adverse inference can be drawn against complainant - Accused liable to be acquitted".
Judgment 30 C.C.No.6420/2019
36. In the case on hand, accused has questioned the financial capacity of complainant. Complainant has not produced any document to show his financial capacity to lend an amount of Rs.50,000/- to accused. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheque for discharge of Rs.50,000/- does not arise.
The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.50,000/-. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
37. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Ex.P1 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Sections 139 and 118 of Negotiable Instruments Act in favour of the accused.
38. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the Judgment 31 C.C.No.6420/2019 requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
39. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.50,000/- legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove his case beyond all Judgment 32 C.C.No.6420/2019 reasonable doubt. As discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.2 and 3 are Negative.
40. Point No.4: In view of my findings on point Nos.1 to 3, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 4 th day of December
- 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Mallikarjun List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Judgment 33 C.C.No.6420/2019 Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipts Ex.P5 : Postal Acknowledgment card Ex.P6 : Reply notice
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 34 C.C.No.6420/2019
04.12.2020.
Comp -
Accd -
For Judgment
Case called out.
Complainant and accused are
absent. No representation from both side
advocates, despite, web-host the case
proceedings and intimate the date of
pronouncement of judgment. Hence, as
per Section 353(6) of Cr.P.C. the following judgment is pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.