Bangalore District Court
Narendra Shenoy vs K.M.Basavarajarya on 18 March, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 18th day of March - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.10016/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Narendra Shenoy,
S/o.Mohan G Shenoy,
Aged about 47 years,
R/at No.572, 7th Main,
Gandhi Park, Vijayanagar,
Bengaluru-40.
(Rep. by Sri.K.T.Govinde Gowda, Adv.)
V/S
Accused : K.M.Basavarajarya,
S/o.Chandraiah,
Aged about 48 years,
R/at. No.901/20,
Basava Krupa,
Kadamba Layout,
Mallathahalli,
Bengaluru-56.
And also working as
Employee with I.D.3784541/203,
Main Assembly Department,
BHEL/EDN, Mysore Road,
Bengaluru-26.
(Rep.by Sri.Ko.Vijayakumar, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.No.10016/2017
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 18.03.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 06.03.2017 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.5 lakhs.
2. The facts given raised to this private complaint are as follows:
The complainant knows the accused through his family friend by name D.H.Ramachandra for the past 10 years. As the accused and said D.H.Ramachandra were working in the same department at BHEL and through him, complainant came to know the accused.
The complainant has further averred that, as the accused was in badly in need of finance, to meet his personal and acute family necessities had approached the complainant through D.H.Ramachandra and Sriram in the month of March, 2009 to lend him a hand loan in order to tide over his necessity. Later on, Judgment 3 C.C.No.10016/2017 from time to time till December, 2013, as and when the accused was in need of money, he used to approach the complainant and received the money, in total he received sum of Rs.10 lakhs till the date on the various occasions as hand loan from the complainant and promised to repay the same shortly. Appreciating the financial predicaments and on the assurances held out by the accused, the complainant in order to help him, during the time of his distress, stage by stage totally he lent sum of Rs.10 lakhs on different occasions in cash.
The complainant has further contended that, accused did not keep up his promise in repayment of the loan, as he agreed and even not paid, despite, repeated demands and requests. When the complainant has made the repeated requests and demands, for repayment of the loan, then accused got issued cheques bearing Nos.547024, 547025 and 247026 for sum of Rs.5 lakhs, Rs.3 lakhs and Rs.2 lakhs dated:05.01.2017 respectively, drawn on the then State Bank of Mysore, Mysore Road Branch, Bengaluru.
The complainant has further alleged that, when he was presented the cheque bearing No.547024 involved in the present case through his banker for encashment, the same came to be Judgment 4 C.C.No.10016/2017 dishonoured for the reasons "Funds Insufficient" as per bank memo dated:10.01.2017. Later, demanding for repayment of the said loan amount through his advocate, he got issued legal notice on 18.01.2017, to the same, the accused got replied vaguely on 06.02.2017 and denied the averments of the complaint, but not paid the money covered under the cheque to the complainant.
Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, my predecessor in office 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 the 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 P9. The PW.1 was subjected for cross-examination by the advocate for the Judgment 5 C.C.No.10016/2017 accused. In the cross-examination of DW.1, complainant counsel got confronted one document and same is marked as Ex.P10.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer given by him was recorded. In support of the defence, the accused himself was examined as DW.1, but not produced any document. The DW.1 was subjected for cross-examination by the advocate for the complainant.
7. I have heard the arguments of both side counsels. The complainant counsel has also submitted his detailed written arguments.
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 beyond the reasonable doubt that, the amount made mentioned in Ex.P1 cheque for sum of Rs.5 lakhs is the legally existing debt payable by the accused to the complainant?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
Judgment 6 C.C.No.10016/2017
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 : As per final order, for the following:
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P10, they are:
a) Ex.P1 is the cheque bearing No.547024 issued by the accused for sum of Rs.5,00,000/-
dated:05.01.2017, drawn on the then State Bank of Mysore, Mysore Road (BHEL Premises) Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:10.01.2017.
d) Ex.P3 is the Legal Notice dated:18.01.2017.
e) Exs.P4 and P5 are the Postal receipts.
f) Exs.P6 and P7 are the Postal Acknowledgment Cards.
g) Ex.P8 is the reply notice dated:06.02.2017 issued by accused through his counsel to the complainant Judgment 7 C.C.No.10016/2017 counsel by denying the contents of legal notice at Ex.P3.
h) Ex.P9 is the R.P.A.D cover and
i) Ex.P10 is the Xerox copy of judgment in S.C.No.1291/2015 on the file of Court of Small Causes, Bengaluru filed by one Narasinga Rao against the accused herein.
The PW.1 was subjected to the cross-examination by the advocate for the accused.
11. In order to prove the defence of the accused, he himself choosen examined as DW.1, but not produced any documents. The DW.1 was subjected for cross-examination by the advocate for complainant.
12. In this case, the advocate for the accused cross-examined the PW.1 and thereby put forth his defence. With that, complainant got closed his side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, the accused denied the same and put forth his statement, stating that, in between 2009-2013, he took loan from the complainant for the tune of Rs.2 lakhs and Rs.1 lakh, likewise, up to Rs.10 lakhs on interest. Accordingly, till February, 2016 to September, 2016, he paid Rs.8 lakhs to the complainant and only Judgment 8 C.C.No.10016/2017 Rs.2 lakhs is payable by him to the complainant. The complainant took the singed blank 3 cheques as security and himself filled the same and filed the present case, hence, he not liable to pay the amount covered under the cheque.
13. That apart, the accused himself choosen to entered into witness box to prove his probable defence and orally examined as DW.1 on oath. Wherein, in brief he contended that:
The complainant had filed 3 separate cheque bounce cases for Rs.10 lakhs. The accused from the complainant, from 2009 onwards stage by stage borrowed the total loan of Rs.10 lakhs on the monthly interest at 3%, 3.50% and 4% about 6 - 7 installments. When borrowed the 1st installment of loan, he came forward to issue one cheque as security, the complainant took 3 singed blank cheques from the accused. Every month he used to pay the interest of Rs.30,000/- to Rs.35,000/- to the complainant, on the loan of Rs.10 lakhs in between 2009-2014. Whenever, the accused had not possessed money, the complainant came to him and pressurized to pay the money scold him. Hence, the accused got lodged complaint before the Vijayanagar Police Station on 30.01.2016 against the complainant.
Judgment 9 C.C.No.10016/2017 The accused has further alleged that, he lodged said complaint against the 4 persons including complainant and said complaint is still pending. He lodged complaint referring the 3 cheques given by him to the complainant, based on which he filed separate 3 cases. After lodged complaint before the Police Station, by apprehended those against whom, he lodged complaint make cause trouble to the complainant, he went to Secunderabad of Andhra Pradesh for some days. His friends from Bengaluru called to him and informed that, by scaring for loan, why you left the job and gone there and asked him, accordingly, he come and joined the duty. Later, complainant came to him and asked why he lodged complaint against him.
The accused told him that, by giving portion of amount would clear the loan to the complainant.
The accused has specifically alleged that, in order to obtain the house for lease, he kept with money of Rs.3,50,000/-, the same were given to the complainant on 28.02.2016 of Rs.3,50,000/-. Later, on 03.04.2016, he gave Rs.50,000/-, accordingly, on 04.05.2016, 07.06.2016, 09.07.2016 and 06.08.2016 he gave sum of Rs.25,000/- each, Rs.50,000/- and Rs.1 lakh to the complainant. That apart, by borrowed loan from one Balyanayak, his colleague, he borrowed sum of Rs.2 lakhs Judgment 10 C.C.No.10016/2017 from him and that money also paid to the complainant on 15.09.2016, in all the accused had paid Rs.8 lakhs to the complainant and got cleared the loan. Even he stated, in between up to August, 2014, he paid sum of Rs.10 lakhs to Rs.12 lakhs to the complainant with interest and when he asked for return of those 3 cheques, the complainant has demanded Rs.2 lakhs as balance loan amount and if he paid only would return the questioned cheques. Otherwise, by mentioning Rs.10 lakhs each to all the cheques, file separate cases. In order to pay money to the complainant, the salary amount is not sufficient to the accused, despite; he furnished to him not paid money. After demonetarization of currency, he not able to adjust Rs.2 lakhs, hence, he not paid. Meanwhile, after seeing 3 cheques were dishonoured and got issued notice by the complainant, he got surprise and hence, caused reply notice. Therefore, prayed for his acquittal. The accused was also subjected for cross- examination by the advocate for complainant on several occasions.
14. On going through the rival contentions of the parties, it made clear that, based on the questioned cheque at Ex.P1, complainant had instituted the present case against the accused. Wherein, the accused has appeared and contested the claim of Judgment 11 C.C.No.10016/2017 the complainant by admitted the borrowal of loan of Rs.10 lakhs from the complainant from 2009, on 6 - 7 installments for the tune of Rs.10 lakhs on the monthly interest at 3%, 3.5% and 4%. Moreover he specifically pleaded, the said loan amount with interest were repaid by him between the period 2009 - 2014 and specifically alleging that, against the borrowal of loan of Rs.10 lakhs, he repaid sum of Rs.10 lakhs to Rs.12 lakhs to the complainant. Despite that, complainant not returned questioned cheque and other cheques and filed the present case.
15. As per Sections 118 and 139 of Negotiable Instruments Act, the initial statutory presumption has to be drawn in favour of complainant, as to questioned cheque was issued by the accused for discharge of existence of legally recoverable debt, unless and until contrary prove. In this case, the accused not admitted the liability covered under the cheque, but admitted the borrowing of loan of Rs.10 lakhs from the complainant on interest and specifically claiming, it was repaid along with interest and in all he claiming repaid sum of Rs.10 lakhs to Rs.12 lakhs to the complainant. No doubt, the accused has not produced any document, as to the repayment of loan. But he categorically admitted the borrowing of loan from the complainant. As per say of accused, he stated, borrowed loan from the complainant in 6 -
Judgment 12 C.C.No.10016/2017 7 installment for the tune of Rs.10 lakhs in between 2009 - 2014. The complainant also claiming in the complaint, he lent loan of Rs.10 lakhs stage by stage in between 2009 onwards. Therefore, the fact remains that, the accused borrowed the loan of Rs.10 lakhs from the complainant are unchallenged.
16. It is significant fact to note that, the complainant has not lent the alleged loan of Rs.10 lakhs to the accused in one lumpsum. But he stated, from March, 2009, as earlier accused was approached the complainant seeking for loan through D.H.Ramachandra and Sriram, he paid the loan. Therefore, it made clear that, the complainant though paid the loan of Rs.10 lakhs to the accused, it was not paid to the accused in one lumpsum, but it was paid years together, whenever the accused was in need of money alleged to be borrowed from the complainant. No doubt, the complainant though stated, during March, 2009, in the presence of D.H.Ramachandra and Sriram, the accused approached him and borrowed loan, it was not stated, how much amount he borrowed at the 1st installment and on the subsequent dates stage by stage, how much amount was paid by the complainant to the accused is not been specified. However, the accused has admitted the receipt of said loan from the complainant on the security of 3 signed blank cheques.
Judgment 13 C.C.No.10016/2017
17. The complainant has not stated in the complaint, on which guarantee he paid the said loan to the accused. No doubt, cross- examination of PW.1, which reveals the probable defence of the accused, is also to be seen to rebut the statutory presumption, as initial burden on the complainant. The complainant in his cross- examination has clearly deposed that:
"DgÉÆæUÉ MªÉÄä gÀÆ.10,000/- ªÀÄvÉƪÉÄä gÀÆ.20,000/-, CAzÀgÉ UÀjµÀÖ gÀÆ.50,000/- zÀªÀgÉUÀÆ ºÀt ¤ÃrzÉÝãÉ. DgÉÆæUÉ CµÀÄÖ ªÉÆvÀÛªÀ£ÀÄß ¸ÀĪÀiÁgÀÄ 15 ¨Áj PÉÆnÖgÀ§ºÀÄzÀÄ."
18. As per say of PW.1, he deposed, about 15 times he lent loan to the accused such as, Rs.10,000/-, Rs.20,000/- as minimum and maximum up to tune of Rs.50,000/-, he claimed to be paid the minimum of Rs.10,000/- and maximum of Rs.50,000/- paid by him about 15 times. Taken in to consideration of the same, if at all, it was paid commencing from 2009 till the cheque dated:05.01.2017, so it acceptable in saying that, without clear the earlier loan, the complainant gone paid the installments of loan on 15 times, it creates doubt. No doubt, the accused has admitted the borrowal of loan of Rs.10 lakhs simultaneously he claimed, it was borrowed the monthly interest at 3%, 3.5% and 4%, hence, it was got cleared, as he deposed. The said evidence of PW.1, it Judgment 14 C.C.No.10016/2017 discloses, from 2009 about 5 - 6 years, the complainant claimed to be paid the money.
19. It is pertinent to note that, as per the relevant provision of the Limitation Act, the recovery has to be made within a period of 3 years. Thereafter, unless the accused executed any confirmation letter or acknowledging the debt, the said amount cannot be recovered. Therefore, it is the complainant require to disclose, exactly what portion of money paid by him, on which date, is to be explained, but no such explanation is forth coming. The said testimony of PW.1, though accused admitted his liability of Rs.10 lakhs borrowal, he claiming that, it was repaid. Therefore, in order to attract the relevant provision of Limitation Act, it is the complainant has to demonstrate, on which date, how much amount was paid by him is not been explained, nor produced any document. In this case, the accused has contended, he borrowed loan from the complainant on the interest on 3%, 3.5% and 4% per month. But in the cross-examination of PW.1, he deposed that:
"DgÀÉÆæUÉ PÉÊ ¸Á®ªÁV ¤ÃrzÉ. §rØUÁV ¤Ãr®è. ¸ÁªÀiÁ£ÀåªÁV vÀÄvÀÄð PÁgÀtPÉÌ ªÀiÁvÀæ PÉÊ ¸Á® ¥ÀqÉAiÀÄÄvÁÛgÉ JAzÀgÉ ¸Àj. F ¥ÀæPÀgÀtzÀ°è DgÉÆæ, 1 CxÀªÁ 2 wAUÀ¼À°è PÉÆqÀÄvÉÛãÉAzÀÄ Judgment 15 C.C.No.10016/2017 PÉýzÀ PÁgÀt PÉÆnÖzÉÝ. DgÉÆæUÉ 10 ®PÀë ¸Á® ¤ÃqÀ®Ä £À£Àß°è DyðPÀ ¸ÁªÀÄxÀðå EgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæUÉ £Á£ÀÄ ¤ÃrzÀ PÉÊ ¸Á®ªÀ£ÀÄß, DvÀ £À£ÀUÉ ªÀÄgÀÄ ¥ÁªÀw¹zÀÝ JAzÀgÉ ¸ÀjAiÀÄ®è. £ÀAvÀgÀ, DvÀ¤AzÀ ¥ÀqÉ¢zÀÝAvÀºÀ SÁ° ZÀÉPï£ÀÄß £À£Àß°è »A¢gÀÄV¸À®Ä PÉýzÀÝgÀÆ PÀÆqÀ, £Á£ÀÄ ªÀÄgÀ½¸ÀzÉÃ, 3 ¥ÀævÉåÃPÀ ¥ÀæPÀgÀt zÁR®Ä ªÀiÁrzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è."
20. By way of cross-examining the PW.1, the accused has put forth his defence and extracted from the mouth of PW.1 that, the alleged loan was not issued by the complainant to the accused for any interest. He categorically admitted that, without interest he gave the said loan. The PW.1 also clearly admitted that, for the urgent requirement only hand loan will be taken and he clearly deposes that, accused told him that, within one or 2 months would return the loan amount, hence, he claimed to be paid to the accused. If at all, the contention of the complainant, he gave loan without interest, definitely, he only recover whatever the amount, he paid to the accused. But accused has strongly contended that, against the borrowal loan of Rs.10 lakhs, on stage by stage, on the guarantee of 3 singed blank cheques, he repaid the loan more than that with interest, hence, he is not liable to pay. The say of accused as well as complaint lodged by him against the complainant and other persons, he made serious allegation, as to, Judgment 16 C.C.No.10016/2017 they have collected the interest from 3% to 4% as mentioned in the complaint. Unless, the complainant collected such amount, was it fair on the part of the accused making allegations as such, against the contention of the accused, complainant has contended that, he not paid the amount on interest. The accused has contended, paid the amount for the tune of Rs.10 lakhs to Rs.12 lakhs.
21. If at all, the complainant accepted any document from the accused, as to payment of the said money with interest to the complainant, it is the complainant has to execute necessary endorsement, as to the receipt of money. But no such receipt is claimed to be issued. At least, the repayment of loan by the accused, is can be seen as per the complaint dated:30.01.2016, it is prior to lodge the complaint. Hence, it made clear that, the accused had no document to show that, for repayment of loan amount with interest. But the complaint and acknowledgment given by police, it made clear that, there was serious allegation against the complainant and others, as to obtaining of huge interest and pressure of payment of more money, then it was the compelling circumstances came to the accused to abscond from the working place and went to Secunderabad.
Judgment 17 C.C.No.10016/2017
22. From the above re-production of testimony of PW.1, it also discloses, the complainant claimed to be paid money to the accused, as he assured to repay within one or 2 months. If at all, accused assured to repay the loan within one or two months, why he took long time, go on paying the loan amount, as he alleged the from March, 2009 till filing the complaint, claimed to be paid Rs.10 lakhs, that too, on stage by stage is not been explained, hence, it creates doubt. In order to show that, he paid money to the accused, as loan amount by stage by stage, no particulars has been furnished. Moreover, as appraised earlier, the complainant has contended that, he paid the loan amount to the accused in between Rs.10,000/- to Rs.50,000/-. For reaching that much amount, as per his say, he lent on 15 times. It clearly discloses, complainant claiming payment of loan from March, 2009 till December, 2013. It was not the requirement of accused to borrow loan in installments, that too, years together, that too, for the period of 4 years. Was it believable, unless the accused clear the earlier loan amount, claimed to be paid to the accused stage by stage, how and on which security, he came forward to disburse the subsequent loan for the period of 15 times itself created doubt. Therefore, it has to be presume that, as the accused got repaid Judgment 18 C.C.No.10016/2017 the loan amount with interest, the complainant was came forward to pay the alleged loan amount on installments.
23. If at all, the complainant accepted any document from the accused for the repayment of loan with interest, definitely, the person who is doing illegal money lending business, without obtaining necessary licence, cannot expect to release or issue any acknowledgment or document, as to receipt of money or interest. It is not the contention of the complainant that, he is doing money lending business by obtaining necessary licence. Therefore, there is some substance in the say of accused, as to repayment of loan with interest. It also appears that, since complainant possessed the singed blank cheques of the accused, as well as the accused was also repaid the loan with interest for time to time, he came forward to pay the loan amount between Rs.10,000/- to Rs.50,000/-, as he alleged for the period of 15 times. Therefore, it is the complainant has to demonstrate, what was the amount he actually received and what amount he adjusted towards interest, against the allegations made by the accused, based on complaint lodged prior to filing the present case, but he did not do so. It is the complainant has to produce necessary document, as to alleged lent of loan, then only he can expect the accused for any other document, as to the repayment Judgment 19 C.C.No.10016/2017 of loan with interest. Those who do equity can expect the same. In the case on hand, irrespective of the accused as to admission of borrowal of loan, it does not come in the way of complainant to produce any document, as to the alleged lent of loan. The accused has contended, he borrowed loan from the complainant for the interest at 3% to 4% for the tune of Rs.10 lakhs in 6 - 7 installments. Therefore, the mode of disbursement of loan, as contended by the complainant as well as, as alleged by the accused is not tallied. Accordingly, it is the complainant has to produce necessary document in order to prove his contention of alleged payment of loan in between March, 2009 till December, 2013.
24. In the above said piece of cross-examination also, the accused attack on the financial capacity of the complainant. The way of release of loan amount, as urged by the complainant in the complaint as well as evidence of PW.1, it discloses, since he had no sufficient money, hence, not lent at one lumpsum. Therefore, took time to pay the said amount at Rs.10,000/- to Rs.50,000/- and take 15 times for pay the said huge amount. The said factum also discloses, for recover the loan amount, the limitation period stipulated under the Limitation Act is for 3 years. Thereafter, unless executed acknowledgment of debt, time barred debt Judgment 20 C.C.No.10016/2017 cannot be recovered. In order to show that, from the period of March, 2009 till December, 2013, the complainant has contended, lent loan of Rs.10 lakhs to the accused for asking him to repay the same, no documentary evidence is available before this court. Though, he relied upon questioned cheque alleged to be issued by the accused, in the complaint, he not stated, when it was issued. The accused has contended, at the time of alleged borrowal of loan, complainant took singed blank cheque for recover more money, got filled himself and filed the false case. Therefore, pleading of the complainant itself discloses, the transaction was between 2009 - 2013. Hence, without obtaining any security document, the complainant though, he being an Engineering Graduate doing the Tuition business, expected to explain and produce documents, what amount of cash paid by him years together, that too, the unknown accused, as alleged to be introduced through D.H.Ramachandra, it is so difficult to accept the contention of the complainant. In order to prove the loan transaction, it is the complainant has to examine the said witness and require producing necessary documentary evidence. At lest for the purpose of calculation alleged loan amount, some statement has to be maintained by the complainant. In that regard also, no explanation is forth coming and on which basis, he Judgment 21 C.C.No.10016/2017 is claiming, he lent the huge amount of Rs.10 lakhs over the period of 4 years without any security document itself creates doubt.
25. Whereas, the accused has contended that, he repaid the entire loan amount as suggested to PW.1 and despite, he asked for return of signed 3 blank cheques obtained from him, he not to do so, but filed separate 3 cheque bounce cases against the accused, there is some substance in the defence of the accused. The accused by way of lodging complaint at undisputed point of time, prior to the alleged issuance of questioned cheque, as attack on the claim of complainant. In the complaint itself the accused has stated, the present cheque at Ex.P1 stating, along with other 2 cheques, the complainant took it as security in blank and by threatening him to pay the additional amount and filed the present case has to be accepted. The complaint, is pertaining to the undisputed point of time, hence, though, complainant has contended, he not called by the concern police for investigation. The allegations made therein cannot be ruled out, as to the complainant and other persons running the money lending business illegally for higher rate of interest and troubled person like accused. Though, the questioned cheque took by the complainant as security at the time of avail the alleged loan in Judgment 22 C.C.No.10016/2017 blank, the complainant neither pleaded in his complaint nor explained, exactly when questioned cheque was issued by the accused to him. Therefore, only one inference has to be drawn against the complainant that, the complainant got misused the questioned cheque, as he obtained in blank. With regard to the same, it requires to re-produce the cross-examination portion of PW.1 that:
"DgÉÆæUÉ 3 ¥ÀæPÀgÀtUÀ¼À°è ºÁdgÀÄ¥Àr¹gÀĪÀ ZÉPïUÀ¼À£ÀÄß 2015 gÀ°è ¤Ãr, CªÀÅUÀ¼À°è PÁtô¹zÀAvÉ ºÀtªÀ£ÀÄß ¤ÃrzÀ §½PÀ ªÀÄgÀ½ PÉÆr E®èzÉà EzÀÝ°è, ¨ÁåAQUÉ £ÀUÀ¢üÃPÀj¸À®Ä ¸À°è¸À®Ä w½¹, ¸À°è¹ JAzÀÄ PÉÆnÖzÀÝgÀÄ. ¤¦.3 £ÉÆÃn¸ï£À°è 2015gÀ°è DgÉÆæ ZÉPï£ÀÄß PÉÆnÖzÀÝ JAzÀÄ PÁtô¹®è JAzÀgÉ ¸Àj."
26. The PW.1 has deposed that, the cheques produced in 3 cases were issued by accused to the complainant in the year 2015 by stating that, as mentioned in those cheques after payment of cash to the complainant, asked to return those cheques, if at all not, could have been place for collection. By stating so, it discloses, the questioned cheque was issued by the accused to the complainant in the year 2015. At least, it reveal that, from 2015 onwards the questioned cheque was within the possession of the complainant, then why he kept silent, if the accused not paid money till the date made mentioned therein, Judgment 23 C.C.No.10016/2017 dated:05.01.2017, is also not been explained. Even, PW.1 has deposed that, he not stated in Ex.P3, when the questioned cheque was issued by the accused to him. No doubt, the complainant has deposed that, while issue the cheque, the accused by mentioning the amount, name of the complainant and affixed his signature, but not put the date. But he stated, whenever he informed to him by mention the date and present it for encashment, accordingly, as said by the accused, he put the date to the said cheque and present it for encashment. The accused has denied the same, stating, he gave singed blank cheque.
27. On going through the questioned cheque at Ex.P1, it discloses, the signature and other fillings and writings are made in different hand writing and ink. If at all, it was filled by the accused, it is the complainant has to produce necessary document, as he himself did so. Even there is no suggestion while cross-examine the DW.1, as to himself got filled the cheque and issued to the complainant for payment of amount. The DW.1 in his cross- examination categorically deposed by admitting his signature, but denied other writings, as not of him. Even, no suggestion made to him stating, the said hand writing was of the accused. The PW.1 also deposed that, the accused himself filled the cheque without Judgment 24 C.C.No.10016/2017 mentioning the date and he himself filled the date to the same. Therefore, it discloses, the complainant has failed to prove that, the questioned cheque was duly executed and issued by the accused for discharge of sum of Rs.5 lakhs involved in the present case. The complainant has failed to demonstrate, as to the due execution and issuance of questioned cheque.
28. As per say of PW.1, though, he obtained the questioned cheque in the year 2015, why he kept quiet till 05.01.2017 for making it presentation not explained. After accused lodged complaint before the jurisdictional Police Station, he got alert and presents it by filling the same. Even though, if at all, he lent loan stage by stages from March, 2009 till December, 2013, without receiving any repayment of interest, can he await over the period of six years till alleged to be issued the questioned cheque in the year 2015, also created doubt. Even, the mentioning of date on 05.01.2017 discloses, as on the said date, even the accused not repaid the loan amount with interest for the period of 8 years, is also highly unbelievable. Without receiving any interest or repayment portion money from the accused, as he alleged, only relied upon the questioned cheque kept await for the period of about 7 years and filed the present case, clearly manifest that, the accused is able to prove his probable defence stating, at the time Judgment 25 C.C.No.10016/2017 of alleged lent of loan, the complainant took singed blank cheque and despite, he got repaid the amount for the tune of Rs.10 lakhs to Rs.12 lakhs with interest, complainant once again brought the present case. The very act of the complainant has to be deprecated.
29. Further, if at all, the accused gave the questioned cheque along with other cheques bearing Nos.547025 for sum of Rs.3 lakhs and 547026 for sum of Rs.2 lakhs on the very same date:05.01.2017, definitely, he could have issue one cheque, inspite of issue separate 3 cheques, there is no mentioning the reasons, why baring same date 3 cheques were issued by the accused to the complainant also one of the circumstances to disbelieve his contention. Looking into any angle, the accused has successfully in prove the probable defence stating that, the amount covered under the Ex.P1-cheque is not the existence of legally recoverable debt. The complainant, perhaps after the accused gave complaint prior to present the questioned cheque, i.e., very particularly on 30.01.2016 about one year back of presenting the questioned cheque, came up with instant case. Hence, it is the consider opinion of this court, the complainant has utterly failed to prove that; the amount covered under the Judgment 26 C.C.No.10016/2017 questioned cheque is the existence of legally recoverable debt. Hence, the accused is entitled for benefit of doubt for acquittal.
30. 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:
"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".
31. 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.
Judgment 27 C.C.No.10016/2017 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 rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
32. 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.5 lakhs 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.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
Judgment 28 C.C.No.10016/2017 "Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
33. 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.5 lakhs 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 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.5 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 29 C.C.No.10016/2017
34. 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.
35. 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 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.
36. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the Judgment 30 C.C.No.10016/2017 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.5 lakhs 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 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.1 and 2 are Negative.
37. Point No.3: In view of my findings on point Nos.1 and 2, 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.
Judgment 31 C.C.No.10016/2017 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 18th day of March - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Narendra Shenoy List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Exs.P4 & 5 : Postal receipts Exs.P6 & P7 : Postal Acknowledgment cards Ex.P8 : Reply notice Ex.P9 : R.P.A.D cover Ex.P10 : Copy of judgment in S.C.No.1291/2015
List of Witnesses examined on behalf of the defence:
DW.1 : K.M.Basavarajarya List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 32 C.C.No.10016/2017
18.03.2020.
Comp -
Accd -
For Judgment
Judgment 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.