Bangalore District Court
Sri.Rajesh.T.V vs M/S Abhimann Roys Music Galaxy on 8 November, 2022
KABC020132442017
BEFORE ADDL. CHIEF METROPOLITAN MAGISTRATE
Court of Small Causes, Bengaluru, (SCCH3)
DATED THIS THE 08th DAY OF NOVEMBER 2022
PRESENT: SMT.SHILPA K.S ( BAL, LLB)
VII Addl. SCJ and ACMM,
Member, MACT3, Bengaluru.
C.C.No.18958/2017
Complainant : Sri.Rajesh.T.V,
S/o Vajrappa,
Aged about 29 years,
R/o Thathaguni,
Thathaguni Post,
Kanakapura Main Road,
Bengaluru - 560 062.
(By Sri.Manjunath.M.R, Advocate)
Vs
Accused : M/s Abhimann Roys Music Galaxy,
Rep. by its Proprietor
Sri.Abhimanna Roy.G,
S/o Erappa,
Aged about 38 years,
R/at No.1288, 19th Main,
5th Block, HBR Layout,
Bengaluru - 560 043.
(SCCH3) 2 CC 18958/17
And also available at
No.642, Maruthi Nagara,
Gubbalala,
Subramanyapura Post,
Kanakapura Main Road,
Bengaluru - 560 061.
(By Sri.M.Girish, Advocate)
**********
JUDGMENT
1. The complainant has filed this complaint against the accused for the offence punishable U/s 138 N.I. Act. (This case is transferred from XVI ACMM, Bengaluru).
2. Brief Facts: It is alleged by the complainant that the accused had approached the complainant during the first week of June 2016 and requested hand loan of Rs.6,75,000/ for his movie commitments. The complainant had paid a sum of Rs.6,75,000/ by way of cash on 15.01.2017 and accused agreed to repay the said loan within 3 months. After three months when complainant approached the accused he had postponed repayment and in the month of January 2017 the accused had issued a cheque bearing No.863463 dt.29.03.2017 drawn on State Bank of India, Mudalapalya branch, Bangalore for a sum of Rs.6,75,000/ for the discharge of the legally (SCCH3) 3 CC 18958/17 recoverable debt. Then the complainant had presented the said cheque for collection through IDBI Bank Ltd., Basavanagudi, Bangalore on 31.05.2017 and it was returned with an reason stating 'payment stopped by drawer'. Then the complainant had issued the legal notice on 15.06.17 calling upon the accused to repay the cheque amount. Even after service of the notice on the accused he had not repaid the cheque amount nor replied to the notice. Hence this case.
3. In respect of this a complaint was lodged by the complainant U/s 200 Cr.P.C. against the accused. This court after taking cognizance had issued summons to the accused.
4. After securing the appearance of the accused this court had complied with the provision of section 207 Cr.P.C. The accused then got released him on bail.
5. Thereafter on 25.10.2017 plea was recorded by duly explaining the substance of accusation to him. The accused had pleaded not guilty and claims to be tried.
6. In order to prove the case the complainant was got examined himself at PW1 and relied upon sixteen documents marked at Ex.C.1 to 11 and Ex.P.12 to 16 and closed his side.
(SCCH3) 4 CC 18958/177. By way of rebuttal the proprietor of the accused firm had got examined himself as DW.1 and got marked 6 documents as Ex.D.1 to 6 and closed his side.
8. Thereafter on this court on 20.09.2018 and 220.06.2019 has recorded the statement of accused U/s 313 Cr.P.C by duly explaining the incriminating circumstances appeared in the evidence of the complainant. The accused had denied the entire statement as false.
9. Heard both sides. The complainant and accused have filed written arguments.
10. Points for consideration and determination are as under :
1. Whether the complainant proves beyond all reasonable doubt that the accused had issued a cheque bearing No.863463 for a sum of Rs.6,75,000/ drawn on State Bank of India, Mudalapalya branch, Bangalore and when it was presented on 31.05.2017 through IDBI Bank Ltd., Basavanagudi branch, Bangalore it was returned for the reason payment stopped by drawer, then inspite of service of notice on accused he did not paid the cheque amount within the (SCCH3) 5 CC 18958/17 stipulated time and thus committed an offence punishable U/s.138 of N.I. Act?
2. What order?
11. After careful observations of evidences and after hearing both sides my findings to the above points are as under :
Point No.1 : In negative
Point No.2 : As per final order
REASONS
12. It is the case of the complainant that the accused had issued a cheque for the clearance of the loan amount raised under him. So when it was presented it was dishonoured and thereafter the accused had committed an offence punishable U/s.138 of N.I. Act.
13. To prove this the complainant had examined himself at PW1 by reiterating all the averments of the complaint in his affidavit. In the instant case it is the allegation of the complainant that he knew the accused as he was in movies. Then for his legal necessity at his request he had advanced loan amount and thereafter towards discharge of this loan the accused had issued a cheque.
(SCCH3) 6 CC 18958/1714. At the same time it the contention of the defence that there is no source of income for the complainant to lend the cheque amount and he had not borrowed the said amount from the complainant. Even the accused had contended that he is financially sound and there is no probability of raising loan with the complainant.
15. The PW.1 in his cross examination has admitted that "ನನನ ಕಕಮ ರ ಇಟನ ಟ ಕನಕಕಡದನ. ನನಗ ತಕಗಳಗ ರರ. 20,000/ ರಕದ 30,000/ ಆದಯ ಬರನತತದ . ನನನ ಸಸ ಕತ ಮನಯಲ ವಸಮಡನತತತ ನ. ಪ ಪ ಶಕತ. ಎಸ. ಆರಧಕ ರವರ ಮರಲಕ ಆರರತಪಯ ಪರಚಯ ನನಗ ಆಗರನತತದ . ಜರನ 2016 ರಲ ಆರರತಪ ನನನ ಲ ಹಣ ಕತಳದರ. ಆರರತಪ ಕತಳದ ದನವತ ನನನ ಹಣ ಕರಟಟಲಲ , ಮರನದನವತ ನನನ ಸರ ಸ ಡಯಗ ಹರತಗ ಹಣ ಕರಟಟದ ನ.
ನನನ ಹಣವನನ ನ ನನನ ಸನ ತಹತರಕದ ಪಡದನ ಆರರತಪಗ ಕರಟಟದ ನ.
ಆರರತಪ ನನನ ನನ ನ ಹಣ ಕತಳನವಗ ನನನ ಒಬಬ ನತ ಮತನತ ಅವರರ ಒಬಬ ರತ ಇದದ ರನ. ನನನ ಆರರತಪಗ ನಗದಗ ಹಣ ಕರಟಟದ ನ. ನನನ ಲ ರರ.1,00,000/ ಹಣ ಮತ ತ ಇತನತ. ಗರಯಕದ ರರ.3,00,000/ ಇನರ ನ ಉಳದ ಹಣವನನ ನ ನನನ ಸನ ತಹತರಕದ ತಗದನಕರಕಡದನ. ನನನ ರರ.1,00,000/ ಹಣವನನ ನ ನನನ ತಕದಯವರಕದ ತಗದನಕರಕಡದ".
16. Further the PW.1 has admitted that " I can examined my father through whom I collected sum of Rs.1,00,000/ out of Rs.6,00,000/ in order to pay said amount to the accused. It may be true that usually (SCCH3) 7 CC 18958/17 while paying huge sum of Rs.6,00,000/ one will execute or receive agreement to that effect or will have sufficient documents, witness states that accused issued two cheques in his favour and also executed one on demand pronote. The accused had issued two cheques and he issued one cheque for Rs.6,75,000/ and another cheque was blank. No agreement was entered between myself and viji Chetan with respect of receiving of amount from them in order to pay it to the accused. I have not repaid received amount to Viji and Chethan. The notice issued to the accused is not served upon the accused due to change in address. Accused handed ove the cheque in the month of September 2016. The Ex.P.12 and 13 are with me prior to issuing notice to the accused".
17. This complaint is filed on the allegation of the complainant that towards discharge of legal debt the accused had issued the alleged cheque got marked at Ex.P.1 for a sum of Rs.6,75,000/ in his favour. But the accused had contended that the alleged cheque was not issued for any discharge of any existence of legal debt. The legal debt means a debt which can be legally claimed. In the instant case the complainant had filed this complaint for the due by the accused.
(SCCH3) 8 CC 18958/1718. Per contra the proprietor of the accused firm was got examined himself as Dw.1 and stated that this complaint is filed on fabricated story. He had further stated that he had not borrowed any amount from the complainant and not given signed blank cheque in favour of the complainant. That he was working as Music director in Kannada Industry. That the accused knew one Prashanth S Aradya who is one of the lyric writer and in between 45 years he had received amount from the said Prashanth S Aradya and repaid it. At the time of lending money by Prashanth S Aradya he asked blanked cheque from the accused for security purpose and the accused had handed over the blank cheques to him. Even after return of the amount the said Prashanth S Aradya did not returned back the cheques and colluding with the complainant has filed this false complaint.
19. The Dw.1 in his cross examination has admitted that "It is true that in the course of making the said movie I was in need of money. It is true that I am facing another cheque bounce case in this court which is C.C.18369/2017. It is true that Ex.P.1 cheque belongs to my account at SBI. Witness after showing Ex.P.2 bank endorsement has stated that he has not issued these cheques to anybody of this case, as such (SCCH3) 9 CC 18958/17 he had ordered the bank for stop payment. I had lodged complaint against the Rajesh. It is true that in Ex.D.5 there is no mention regarding payment made to Rajesh".
20. The next important point for consideration is that it is not dispute that both the complainant and the accused are known to each other. Further the complainant in support of his case had got marked the cheque, bankers endorsement, on demand promissory note, legal notice, postal acknowledgement, postal receipt at Ex.P.1 to P.11 to show the existence of the debt for which the alleged cheque was issued in his favour by the accused.
21. The accused had not disputed his signature found on Ex.P.1 but he had contend that it was not issued to the complainant towards legally recoverable debt. It is also true that the notice was not served upon the accused as required under law. The defence have vehemently argued with respect to non service of notice on the accused. In the instant case the notices sent to the accused were returned as addressee left. Even the complainant has not taken care to issue notice where the accused actually resides or does his business. Hence the accused had not replied to the notice issued by the complainant.
(SCCH3) 10 CC 18958/1722. At this stage I would like to discuss about the provisions of the notice which says that the notice of demand is a statutory notice. The section requires it to be in writing and it has to be issued within 30 days of the receipt of the information from the bank about the dishonour of the cheque. The section though requires a notice to give raise cause of action, it seldom mentions any form, nor does it mention the basic requirement of a valid notice. A demand notice cannot make an omnibus demand without giving break up figures as to which amount is what. So in the present case a notice was given by the complainant to the accused calling upon him to repay the cheque amount which was not duly upon the accused.
23. So after cross examination of the PW.1 regarding holding of another blank cheque he had got marked those cheque, pronote as per Ex.P.12 and 13. So on perusal of Ex.P.12 and 13 it is clear that both are blank and it supports to the contention of the accused that he had issued blank signed cheque. The complainant was mum about Ex.P.12 and 13 in the averments of notice, complaint and first part of his cross examination. So it creates doubt on the case of the complainant as to what prevented him to return the said cheque and pronote to the complainant or (SCCH3) 11 CC 18958/17 again present the Ex.P.12 when Ex.P.1 was dishonored. Even the complainant had not assigned valid reason as to why he had obtained blank cheque and pronote when really the Ex.P.1 was given by the accused by duly filling and towards existence of the legal debt. The Ex.P.14 to 16 are the copy of complaint filed against the same accused only which were got marked during the cross examination of Pw.1.
24. Further it is pertinent to note that the inks used and writings in Ex.P.1 and 12 are different. At this stage I will rely upon the decisions reported in ILR 2001 KAR 5469 - Nityanand V/s Jamuna Prakash - It is held that if cheque number and other details regarding the cheque is not mentioned then it is not fatal to the payee's case.
25. The next point for consideration is that the accused had contended that he is financially sound and he had not borrowed the amount from the complainant. Hence he is not liable to pay the cheque amount. In order to substantiate this the accused had got marked the bank acknowledgement and statements as per Ex.D.1 to 6. So as per these documents it is clear that the accused had gave stopped payment to his bank. Even as per Ex.D.2, 3, 5 (SCCH3) 12 CC 18958/17 and 6 account statements it can be noticed that the accused is having sufficient income in his account.
26. In the instant case the complainant had stated that he had lend the cheque amount by borrowing from his friend and father. So it means that he was not having such an amount to lend the same to the accused. Even there are no documents to show that he had lend the cheque amount from his father and friend so as to lend the same to the accused. Even the complainant has not cared to adduce the evidence of his father and friend. Even there are no other documents to believe that the complainant was financially sound or he had borrowed the amount. Generally, any person first apportionate the income for his personal expenses including household expenses, education, health and then only lend the amount to others. So under these circumstances, it is difficult to believe the pleading of the complainant that he has source of income or borrowed the amount from his father and friend to lend the cheque amount to the accused.
27. It is true that the accused had admitted his signature found in Ex.P1, 12 and 13 as belongs to him. The complainant had not proved his source of income to lend the cheque amount to the accused. But (SCCH3) 13 CC 18958/17 the accused had shown as to why and how the Ex.C1, Ex.P.12 and 13 went into the hand of complainant.
28. At this stage, I would like to rely upon decisions reported in: [A] (2009) 2 SCC 513 - Kumar Exports V/s Sharma Carpets - It is held that the word presumption literally means taking as true without examination or proof. A presumption is not in itself evidence but only makes a primafacie case for a party for whose benefit it exists.
[B] (2009) 14 SCC 683 - Jugesh Sehgal V/s Shamsher Singh Gogi - It is held that all ingredients has to be satisfied before a person who had draw the cheque can be deemed to have committed the offence.
[C] 2020 SCC Online Delhi 929 - Sri. Tyres V/s State - It is held that the primary condition has to be satisfied in order to believe that the instrument was a negotiable instrument and it was dishonored.
29. So under these circumstances and from the above findings it is clear that the complainant has not (SCCH3) 14 CC 18958/17 made out a case that the accused is due to him. Even the complainant has not proved his source of income to lend the cheque amount. The complainant had stated that he is a Music director and earn amount. But, there is no supportive documents to show the income of the complainant and also there is no document to show that at the time of lending the alleged amount to the accused, the complainant was having cheque amount with him. Hence, the complainant has not proved his source of income to lend the cheque amount.
30. As per settled principle of law, the initial burden shifts on the complainant to prove that he is an holder in due course and then the burden shifts upon the accused to prove that the cheque was not issued in favour of complainant.
31. In the instant case, the complainant had not proved that the accused is in due of the cheque amount. Under these circumstances, the contention taken by the accused that he had not issued the Ex.C1 in favour of complainant is more probable to believe.
32. If a cheque is bounces then the alleged offences is attracted. It cannot be made ground to exonerate penal liability. But the complainant through (SCCH3) 15 CC 18958/17 marking the Ex.P.1 to Ex.P.16 is not able to prove the case against the accused.
33. The presumption U/s.139 of the Act is a presumption of law, it is not a presumption of fact. This presumption has to be raised by the court in all the cases once the factum of dishonour is established. The onus of proof to rebut this presumption lies on the accused. The standard of such rebuttal evidence depends on the facts and circumstances of each case. Such evidence must be sufficient, cogent and should prove beyond all reasonable doubt. Therefore mere explanation is not enough to repel this presumption of law. So mere issue of cheque by not maintaining sufficient amount in the account is an offence if it bounces.
34. If we come to the real crux of this complaint i.e., provisions of section 138 of N.I. Act then this complaint is filed for the case of dishonour of cheque given by the accused. The most crucial point to be considered is that the accused never disputed about the Ex.P.1 standing in his name. But the accused had shown that even though the Ex.P1 is in possession of the complainant, but he is not in due to the complainant. But, the complainant has not proved the (SCCH3) 16 CC 18958/17 Ex.P1 was issued in his favour towards the legally recoverable debt.
35. In a case like this in hand, the initial burden shifts on the complainant and the standard of proof initially cast upon the complainant and he had not proved his case of legally enforceable debt beyond all preponderance of probabilities.
36. The complainant had relied upon decision reported in a. LAWS (SC) 2015719 - S.R.Sukumar V/s S.Sunaad Raghuram - It is observed that taking cognizance of an offence means the magistrate must have judicially applied the mind of the contents of complaint and indicates that magistrate takes judicial notice of an offence.
b. LAWS (SC) 1987868 - Uttar Pradesh Pollution control Board V/s Modi Distilleries - It is observed that Managers and Directors are responsible for the acts done by the company.
c. Crl.A.230231/2019 - Birsingh V/s Mukesh Kumar - It is observed that the fact of loan may not been advanced by a cheque or demand draft but mere handing over the blank (SCCH3) 17 CC 18958/17 cheque to the accused itself shows that there was mutual trust and faith in between them.
d. Crl.A.1020/2010 - Rangappa V/s Mohan - It is observed that the when accused has sufficient income and ordered for stop payment then section 138 of the Act is not made out.
e. Crl.A.1260/22 - Oriental Bank of Commerce V/s Prabodh Kumar Tewari - It is observed that if a signed blank cheque is voluntarily presented to a payee, then the onus still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
f. Crl.R.P.160/2016 - Jaspal Singh V/s State of Delhi - It is observed that the offence is made out when the other side have not proved lost of cheque book.
g. CRR.5263/18 - Ragini Gupta v/s Piyush
Dutt sharma - It is observed that a
presumption has to be drawn in every
negotiable instrument was drawn for
consideration only.
37. But the above preposition of law will not hold the hand of the complainant. Further as per the settled principles of law according to section 118 and (SCCH3) 18 CC 18958/17 139 of N.I.Act the presumption lies in favour of the holder of the cheque i.e., the complainant. But in the instant case, the accused has rebutted the presumption that the cheque was not issued for the discharge of any legal debt. So the presumptions under section 139 and 118 of the Act will not hold the hand of the complainant.
38. At this juncture I would rely upon the dictum reported in a. 2010 Crl.L.J 372 - Shrimathi V/s Renuka - It is held that the presumption U/s 139 of N.I.Act extends to the issuing of the cheque towards discharge of a legally enforceable debt or liability and it has to be raised only after the complainant establishes that such debt or liability in fact existed as on the date of the cheque was given to him by the accused.
b. ILR 2009 KAR 1633 - Kumar exports V/s Sharma carpets - presumption under section 138, 118 and 139 come into existence as soon as the complainant proves that negotiable instrument was executed by the accused. These presumption are however rebuttable evidence.
(SCCH3) 19 CC 18958/17c. ILR 2009 KAR 172 - S.Vishwanath paid V/s Vivekanand S.Bhat - It is held that existence of legally recoverable debt is not a matter of presumption U/s 139 of the Act, as section 139 merely raises a presumption in favour of the complainant that the cheque was issued for discharge of any debt and other liability.
d. C.Anthony V/s K.G.Raghavan nair - It is held that use of two different inks in filling up the cheque and the case put up by the complainant rendered doubtful.
e. 2008 Crl.L.J 2405 - Vinay Parulekar V/s Pramod Mesharam - It is held that failure by the complainant to state as to when money in cash was paid by him to accused for return of which cheques in question were issued by the accused.
f. 2010 Crl.L.J 2769 - Kambaiya lal V/s State of U.P - It is held that demand notice neither in complaint nor in statement U/s 200 nor in counter affidavit, any date of service of notice demanding repayment of cheque money was mentioned the order of summoning the accused is liable to be quashed (SCCH3) 20 CC 18958/17
39. It is true that the Ex.P1 which is standing in the name of accused. But it cannot be believed that it was issued towards legally recoverable debt in favour of the complainant only. The complainant has not proved the Ex.P1 so as to presume that it was issued towards the credit by the accused.
40. On my above findings, it is clear the fact of existence of legally enforceable debt is not proved as required to attract the section 138 of N.I. Act by the complainant. The accused has rebutted the case of the complainant that he had not issued the cheque for the legally existence debt to the complainant. The burden lies upon the complainant to prove the case beyond all reasonable doubt and from the above findings the complainant had not proved it.
41. Under these circumstances, when the complainant had not proved the legally existence debt by the accused so as to issue the Ex.C1 in his favour, then even though the cheque bounces the accused is not made liable to pay the cheque amount. Hence, when there is no legally recoverable debt by the accused to the complainant, then mere bouncing of cheque does not made the accused liable to pay the cheque amount. The complainant had not proved the legally existence debt against the accused. Hence, I (SCCH3) 21 CC 18958/17 answered the point No.1 in negative against the complainant and in favour of the accused.
42. Point No.2: In view of my above finding on the above point I found the accused as not guilty and I proceed to pass the following :
ORDER Acting U/s 255(1) of Cr.P.C the accused is acquitted for the offence punishable U/s.138 of N.I. Act.
He is set at liberty.
The bail bonds and surety bonds shall stand cancelled.
(Dictated to the stenographer directly on system, corrected, initialed and then pronounced by me in open court on 08 th November 2022) (SHILPA.K.S) VII Addl. Judge and ACMM, Bengaluru.
ANNEXURE Witnesses examined on behalf of the Complainant:
P.W.1 Rajesh.T.V (SCCH3) 22 CC 18958/17 Documents marked on behalf of the Complainant:
Ex.C.1 Original Cheque dt:29032007 Ex.C.1(a) Signature of accused Ex.C.2 Bank memo Ex.C.3 Copy of Legal notice Ex.C.4 & 5 Postal receipts Ex.C.6 & 7 Returned notices Ex.C.8 & 9 Returned postal covers Ex.C.10 & 11 Postal receipts Ex.P.12 State Bank of India unfilled cheque vide cheque No.913935 Ex.P.12(a) Signature of accused in cheque Ex.P.13 Unfilled Demand draft Ex.P.14 to 16 Certified copies of the Complaint filed in CC.222/2018, CC 667/2018 and PCR No.14948/2017 Witnesses examined on behalf of the accused:
D.W.1 Abhimanna Roy.G Documents marked on behalf of the Accused:
Ex.D.1 Copy of bank acknowledgment Ex.D.2 Copy of Bank account statement of SBI, Hennur Branch, from 01082016 to 27012017, 01042014 to 01092014 Ex.D.3 Copy of Bank account statement of SBI, Byraveshwara nagara Branch, from 01112013 to 03112014 (SCCH3) 23 CC 18958/17 Ex.D.4 Reply given by PSI of Annapurneshwari Nagar Police Station to the RTI application given by accused Ex.D.5 Account statement of one Somashekar Ex.D.6 Account statement of D.W.1 (SHILPA.K.S) VII Addl. Judge and ACMM, Bengaluru.