Bangalore District Court
M.R.Ramesh vs Mahadeva on 11 November, 2019
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 11th day of November - 2019
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.14031/2013
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : M.R.Ramesh,
Aged about 35 years,
S/o.Rajegowda,
R/at. No.1118/1, 3rd Floor,
2nd Cross, NGO's Colony,
Kamalanagar, Bengaluru-79.
(Rep. by Sri.G.N.Dhananjaya, Adv.)
V/S
Accused : Mahadeva,
S/o. Marigowda,
Aged about 30 years,
Door No.167, 1st Cross,
Kempegowda Layout,
Bengaluru-58.
Permanent Address:
Mahadeva,
S/o.Marigowda,
Aged about 30 years,
Kapanahalli, Doddanakatta Post,
K.R.Pet Taluk, Bokankare Hobli,
Mandya District,
Mandya-571 426.
(Rep. by Sri.B.S.Sunil Kumar, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.14031/2013
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 11.11.2019.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 26.04.2013 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.3 lakhs.
2. No doubt, in this case earlier the accused was convicted as per judgment dated:05.07.2017, as he partly cross-examined the PW.1. The said judgment was challenged by the accused by preferring Crl.A.No.1087/2017. Wherein, after heard the matter, the Hon'ble LXII Addl. City Civil and Sessions Judge, Bengaluru City, got set aside the judgment and remand back for trial and directed to dispose of this case within one month from the date of receipt of judgment. The said judgment was received by this court as per order sheet entries on 10.10.2019. Thereafter, this court by comply the observations made in the said judgment, taken the matter for disposal and now set for judgment.
Judgment 3 C.C.14031/2013
3. The factual matrix of the complainant case is:
The accused was well acquainted with the complainant and both are relatives and also staying in the same area. The accused was working as tailor in his own business in the name and style as Suseel Tailoring at Kamalanagar, Bengaluru. During the month of June, 2011, the accused along with Puttaswamy, who is the T.V.Cable operator in the area of Kamalanagar, Bengaluru, who is well known to both of them and sought for hand loan of Rs.3 lakhs to meet the completion of the accused house construction and for personal and domestic needs.
The complainant has further averred that, The T.V.Cable operator - Puttaswamy also convinced the complainant that, the accused already started the house construction at Kapanahalli Village, Doddanakatta Post, K.R.Pet Taluk, Bokanakere Hobli, Mandya District, since 2009, but not completed and accused marriage proposal was also going on, therefore, very urgently money was needed to the accused. The accused also assured the complainant, since working as tailor and he is able to repay the loan amount. The accused also promised the complainant for repayment of the aforesaid Rs.3 lakhs at the earliest within six months or will sell the agricultural property situated at his Judgment 4 C.C.14031/2013 Kapanahalli Village of K.R.Pet Taluk in Mandya District, to clear the hand loan of the complainant.
The complainant has further alleged that, believed taking into consideration of relationship of longstanding acquaintance and promises and assurances, made by the accused and he agreed to pay the amount of Rs.3 lakhs as hand loan to the immediate domestic and personal needs.
The complainant has further contended that, accordingly, complainant paid sum of Rs.3 lakhs to the accused by way of cash in the month of June, 2011, as hand loan in the presence of Puttaswamy, who is the T.V. Cable operator in the area of Kamalanagar, Bengaluru. The accused did not adhere to the time of repayment, despite repeated calls and reminders of the complainant in and around December, 2011, after several attempts, finally the accused assured that, he is making arrangement for sale of agricultural land and requested the complainant to bear another six months and complainant agreed under the humanitarian grounds.
The complainant has further alleged that, after expiry of the 2nd extended time, accused did not pay the amount and assured Judgment 5 C.C.14031/2013 and promised to repay the same, and finally got issued cheque bearing 389328 dated:27.02.2013 for sum of Rs.3 lakhs, drawn on Canara Bank, Kurubarahalli Branch, Bengaluru-86, towards the debt and liability and assured to honour the said cheque.
The complainant has further contended that, based on the assurance of the accused, he presented the said cheque for encashment through his banker viz., Vijaya Bank, (VJB) Branch, Bengaluru on 01.03.2013. To utter shock and surprise to see the endorsement dated:02.03.2013, the said cheque came to be dishonoured for the reasons "Funds Insufficient". Thereafter, he try to contact the accused and resolve the matter, but he not cared and totally neglected the calls of the complainant and requests on one or other pretext. Hence, on 22.03.2013, he got issued legal notice to the accused through his counsel, calling upon him to pay the amount covered under the cheque within 15 days from the date of receipt of notice. The said notice was returned and since not paid the cheque amount. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, the complaint.
4. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and Judgment 6 C.C.14031/2013 recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
5. 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.
6. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P7. To prove his case, the complainant has also choosen to examined one witness by name Puttaswamy as PW.2. The PW.1 and PW.2 were subjected for cross-examination by the advocate for accused.
7. 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. To prove his probable defence, the accused has also choosen to examined one witness by name Rajesh as DW.2. The DW.1 and DW.2 Judgment 7 C.C.14031/2013 were subjected for cross-examination by the advocate for the complainant.
8. I have heard the arguments of both side counsels. The accused counsel has also submitted his detailed written arguments.
9. 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, he paid sum of Rs.3,00,000/- in the month of June, 2011 as hand loan to the accused, and in turn, for discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.389328, dated:27.02.2013 for sum of Rs.3,00,000/- drawn on Canara Bank, Kurubarahalli Branch, Bengaluru?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
10. 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:Judgment 8 C.C.14031/2013
REASONS
11. 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 P7, they are:
a) Ex.P1 is the cheque bearing No.389328 issued by the accused for sum of Rs.3,00,000/-
dated:27.02.2013, drawn on Canara Bank, Kurubarahalli Branch, Bengaluru.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:02.03.2013.
d) Ex.P3 is the Legal Notice dated:22.03.2013.
e) Exs.P4 and P5 are the Postal receipts.
f) Ex.P6 is the Postal Acknowledgment Card and
g) Ex.P7 is the unserved R.P.A.D cover.
The complainant in order to prove his case, choosen to examined one witness by name Puttaswamy as PW.2. The PW.1 and PW.2 were subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citation and relied upon same, it is;
a) AIR 2019 SC 2446 Judgment 9 C.C.14031/2013
12. In order to prove the defence of the accused, he himself choosen examined as DW.1. That apart, to prove his defence, the accused got choosen to examined one Rajesh as witness to filed affidavit evidence and examined as DW.2 on oath, but not produced any document. The DW.1 and DW.2 were subjected to the cross-examination by the advocate for the complainant. Apart from lead defence evidence, the DW.1 through his counsel has produced the citations and relied upon same. They are:
a) 2015 (1) SCC 99
b) 2014 (2) SCC 236
c) 2010 (3) KCCR 1950
d) 2016 (1) AKR 211
13. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
14. To prove his case, the complainant got choosen to examined the alleged witness by name Puttaswamy, through whom the accused approached the complainant for alleged borrowal of loan examined as PW.2 on oath. He also choosen to filed affidavit evidence, wherein, he contended that, he well acquainted with the complainant and accused and both were friends. The accused and complainant are far relatives and Judgment 10 C.C.14031/2013 accused running tailor shop in the name of Suseel Tailoring at Kamalanagar and he is working as T.V / Cable operator in the same area and he also very well known the complainant, who is working as Engineer.
The PW.2 has also contended that, during the period of June, 2011, accused approached the complainant in his presence for hand loan of Rs.3 lakhs to meet out his personal domestic and house construction expenses at the accused village and he assured to repay the loan within 6 months or by sell his property situated at Kapanahally Village, K.R.Pet Taluk.
The PW.2 has also contended that, the complainant also believed the accused words and taking into the consideration the relationship/long standing acquaintance and promise made by the accused, he agreed to pay the loan and accordingly, paid the loan of Rs.3 lakhs to meet out the personal, domestic and house construction expenses of the accused. Later, accused did not adhere to the time for the repayment, despite, complainant has made request and complainant has been wait on humanitarian ground. After expiry of the 2nd time also the accused not paid money, finally, he got issued the cheque bearing No.389328 dated:27.02.2013 for sum of Rs.3 lakhs drawn on Canara Bank, Judgment 11 C.C.14031/2013 Kurubarahally Branch, Bengaluru, for discharge of his liability and promised the complainant that, it will honoured. Finally, the PW.2 came to know that, as per the instructions of accused, the complainant has presented the said cheque for encashment, but the same came to be dishonoured and whenever the complainant try to contact the accused, he avoided for one or other pretext. The PW.2 was subjected for cross-examination.
15. The 313 of Cr.P.C. statement of the accused much earlier on 20.06.2017 as well as further 313 of Cr.P.C. statement based on the evidence of PW.2 were recorded. Wherein, the accused denied the same. To prove the defence of accused, he himself choosen to examined as DW.1 and choosen to filed the affidavit evidence. The same is not objected by the complainant. Hence, the same is taken on record on oath and the accused examined as DW.1. In the affidavit evidence the accused has contended that, the complainant has filed the false case against him with false allegations, he is not liable to pay any money to the complainant and he not borrowed the alleged loan nor issued questioned cheque for discharge of the alleged loan.
16. The accused has specifically stated that, the alleged cheque bearing No.389328, drawn on Canara Bank, Kurubarahalli Judgment 12 C.C.14031/2013 Branch, Bengaluru was the blank singed cheque, which was given to the complainant by him, at the time of complainant lent the hand loan to his friend by name Rajesh, as security for sum of Rs.75,000/-, in the month June, 2011, as demanded by the complainant.
17. The accused has further contended that, the said Rajesh has not repaid the loan amount due to his financial difficulty, hence, the accused was ready to pay Rs.75,000/-, as he was guaranteed to pay the said amount, if Rajesh made any default in repaying the amount, so borrowed. The accused has not issued the present cheque towards discharge of any liability and the blank signed cheque got issued by the accused in connection to the loan borrowed by Rajesh at the instance of the complainant, the complainant has filled the said cheque with huge amount and presented, got dishonoured, though there was no existence of legally recoverable debt. By forged the signature on Ex.P6 acknowledgment, projecting the notice served on him, though, he not received any notice. He neither received the notice nor received any summons from this court, when he arrested by the police and brought before this court, then only he came about this case. Hence, prayed for acquittal.
Judgment 13 C.C.14031/2013
18. No doubt, the accused has not produced any document, but apart from he subjected for cross-examination and choosen to examined one witness by name Rajesh. The said Rajesh is examined as DW.2, he choosen to filed affidavit evidence, the same is also not opposed by the complainant, therefore, taken on record on oath. Wherein, the DW.2 has contended that, he knew the complainant through accused only. As he was in urgent need of money for his legal necessities as such, he approached the accused seeking for financial assistance of Rs.75,000/- in the month of June, 2011. The accused expressed his inability and promised to arrange the said loan amount from his close aid complainant herein. The complainant looking into the problem of the DW.2 and situation, he had been in to, decided to give money subject to the condition that, accused shall stand as guarantor and also give a blank signed cheque as security. Accordingly, the complainant had given sum of Rs.75,000/- as hand loan to him in the month of June, 2011, by way of cash on obtaining singed blank cheque of the accused drawn on Canara Bank, Kurubarahalli Branch, Bengaluru. While receive the money, the DW.1 has assured the complainant to repay the said loan within six months and promised the accused to keep up his words. But unfortunately, the DW.2 financial situation became worst and Judgment 14 C.C.14031/2013 almost bankrupt as such, he unable to repay the hand loan to the complainant till the date. The accused has not borrowed any loan from the complainant, as claimed in the present case and DW.2 failed to repay the loan to the complainant, as he did not had any document to proceed against him, rather only the document of the accused which is singed blank cheque given as security, he misused the same, filled the said cheque and filed the false case against the accused, in order to harass and cause mental agony to the accused. The accused has caused breach of trust and wrongful act done by him, as not keeping up his promise to repay the loan to the complainant. The accused is not liable to pay the amount of Rs.3 lakhs to the complainant. The DW.2 was also subjected for cross-examination.
19. On going through the rival contentions of the parties, it discloses, the accused after mark his appearance in the present case, has harped on the claim of the complainant, as to borrowing of the alleged loan of Rs.3 lakhs as well as got issuance of questioned cheque for discharge of existence of legally recoverable debt and strongly contended that, the legal notice is not served on him. But taken up specific defence that, when the DW.2, who is his friend was in dire need of Rs.75,000/- loan, as he not have the money, the accused brought the DW.2 before the Judgment 15 C.C.14031/2013 complainant to provide the financial assistance. The complainant being a friend, on obtaining the singed blank cheque of the accused as security, got issued the loan of Rs.75,000/- to the DW.2 in the month of June, 2011, as the DW.2 not cleared the said loan. The complainant by misusing his singed blank cheque got filled the amount of Rs.3 lakhs, though it is not existence of legally recoverable debt payable by the accused, filed the false case. Therefore, it made clear that, the accused has taken up his specific probable defence, which attacks on the claim of complainant.
20. No doubt, as per Sections 118 and 139 of Negotiable Instruments Act, it made clear that, the initial statutory presumption is in favour of the complainant that, in respect of passing of consideration from the complainant to the accused, in turn, for repayment of the said amount, the accused got issued questioned cheque, unless and until contrary prove. The contrary is none other than, the defence set out by the accused detailed above.
21. No doubt, the accused has specifically contended that, he not received the legal notice, hence not cause any reply and he came to know about the present proceedings only after police Judgment 16 C.C.14031/2013 brought him before the court in under the NBW. The said fact reveal from the order sheet so. Therefore, the fact remains that, the accused not issued the reply notice. The accused has contended that, his mother is residing at 2nd address of cause title, which is Kapanahalli, Doddanakatta Post, K.R.Pet Taluk, Bokankare Hobli, Mandya District, and he is doing tailoring business in the name and style of Suseel Tailoring at Bengaluru.
22. On going through the cause title address, it discloses, the complainant has contended, the 1st address is the present address of the accused at Bengaluru, wherein, he doing tailoring business in the name of Suseel Tailor at Kamalanagar. The 1st address is not the tailoring shop address, but it discloses, address at Kempegowda Layout. However, the accused has not denied the said address, but he admitted, he is residing in the said address, but the legal notice at Ex.P7, which is R.P.A.D. issued to the address of the accused was returned, stating, no such person in the given address, hence, returned to sender. From the reading of endorsement made by the postal authority, it made clear that, the accused not residing in the given address. During the course of cross of DW.1, he deposed that, who is doing tailoring business in the address made mentioned in the affidavit of the accused, which is none other than 1st address of the Judgment 17 C.C.14031/2013 complaint cause title. He also admitted that, to the said address, if any paper correspondence is made, would serve to the same, but the said Ex.P7 legal notice is not delivered any one of the family member of the accused, but it was stating no such person in the given address, hence returned. Therefore, it made clear that, the said notice would not served on the accused to the address at Bengaluru. Hence, it made clear that, Ex.P7 notice is not served to the address at Bengaluru.
23. No doubt, the complainant in his cross-examination has clearly stated that, the accused is doing tailoring business in Bengaluru. When he is working at Bengaluru, why the complainant caused legal notice to the address at K.R.Pet Taluk is not been explained, the person cannot reside at two places simultaneously. If at all, the complainant wishes to give legal notice, definitely, could have been given to the Suseel tailoring at Kamalanagar, Bengaluru address, wherein, he is working. But for the reasons better known to him, not caused any legal notice to the said address, though he knew as ever he claimed to issue legal notice to the K.R.Pet address. The accused during his cross-examination has stated that:
Judgment 18 C.C.14031/2013
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24. On going through the said testimony of DW.1, he clearly denied that, the notice issued to the address at K.R.Pet Taluk, Mandy District, is not served on him, and the notice issued to the address at Bengaluru is also admittedly unserved, stating no such person. The accused also deposed that, the signature at postal acknowledgment at Ex.P6 is not of him and the address made mentioned therein at K.R.Pet Taluk is also wrong. The suggestion made to him that, though, the said legal notice was served on him as per Ex.P6, he denied the same and not replied the same. No doubt, the DW.1 during the course of his cross-examination as deposed that, his mother is residing in the said address as it is the permanent address. Therefore, when the accused is working at Bengaluru, simultaneously the said notice served on to the accused at K.R.Pet Taluk does not arise and signature found at Judgment 19 C.C.14031/2013 Ex.P6 is not corroborates the signature at Ex.P1(a). Therefore, it made clear that, the legal notice is not served on the accused, hence, whatever the service made as per Ex.P6 to the service of legal notice is not duly served on the accused and thereby, not complied the mandatory provision. Since, no notice is served on the accused. Question of expecting any reply for put forth his defence does not arise. Unless service of notice expecting the reply does not arise.
25. The accused, after his appearance before this court, he denied the accusation made against him and cross-examined the PW.1 and his witness as well as himself entered into the witness box coupled with examined one independent witness by name Rajesh to substantiate his probable defence. It discloses, the accused is attack on the claim of complainant under the specific grounds. No doubt, it is initial burden on the accused to prove his probable defence. The accused specifically stated, the complainant is known person to him and as his friend Rajesh i.e., DW.2 was in urgent need of money of Rs.75,000/-, the complainant on the guarantee of singed blank cheque obtained from the accused got paid the said sum during June, 2011. The said Rajesh not repaid the said money; therefore, complainant got misused the singed blank cheque and filed the false case. The Judgment 20 C.C.14031/2013 DW.1 was subjected for cross-examination. Wherein, he specifically denied the suggestion made by the complainant from the point of allegation made in the complaint that, for the purpose of construction of the house and for personal and domestic needs, the accused borrowed the loan.
26. The DW.1 has deposed in his cross-examination that:
"2012 gÀ°è ¸ÀzÀj «¼Á¸ÀzÀ°è £Á£ÀÄ ªÀÄ£ÉAiÀÄ£ÀÄß PÀnÖ¹zÉÝ JAzÀgÉ ¸ÀjAiÀÄ®è. D ªÀÄ£É PÀlÖ®Ä ¦AiÀiÁð¢AiÉÄà EAf¤AiÀÄgï DV ¥Áè£ï£ÀÄß vÀAiÀiÁj¹PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀzÀj ªÀÄ£É vÁgÀ¹ ªÀÄ£ÉAiÀiÁVgÀÄvÀÛzÉ. ¸ÀĪÀiÁgÀÄ 2008-09 gÀ ¸Á°£À°è D ªÀÄ£ÉAiÀÄ£ÀÄß PÀnÖ¹gÀÄvÉÛãÉ."
27. On perusal of the said testimony of DW.1, he clearly denied the suggestion made from the complainant that, in the year 2012 he put up the construction of house at K.R.Pet Taluk and also he denied that, the complainant had prepared a building plan. Thereby, the DW.1 has specifically stated that, the house constructed in his home town at K.R.Pet Taluk was built in the year 2008-09 by his mother. Therefore, the very claim of the complainant, for the purpose of construction of house borrowed the loan during June, 2011 is brushed out, as the accused specifically stated, it was built in the year 2008-09. If at all, really Judgment 21 C.C.14031/2013 the complainant were prepared the plan or sketch of the proposed house, definitely, could have been produced to disprove the very contention of the accused. But the fact remains, accused was built the house much earlier than the alleged year. Though, the DW.1 was stated, if at all, the accused borrowed the loan, exactly on which date, where, through whim and what was the denomination is to be directly suggested to the DW.1, but the evidence of DW.1 does not reveal that:
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28. From the said testimony of DW.1, it also discloses, the contention put forth by the complainant that, since the accused had shortage of money while construct the house, he borrowed loan of Rs.3 lakhs from the complainant is against his own Judgment 22 C.C.14031/2013 pleading and even then, no suggestion is made, exactly on which date and where the complainant had paid money to the accused is not been suggested. Even, his evidence does not disclose the said money was paid in the presence of PW.2. The DW.1 has clearly deposed that, except tailoring business, he had no other income and not borrowed loan, for the purpose of construction of house, but stated, his mother house has built the house. Even, his evidence also discloses, since 20 years he is doing tailoring business in Bengaluru and denied that, wantonly not received the legal notice. Except the said suggestion nothing has whispered by way of gave particulars, as to the alleged passing of consideration of Rs.3 lakhs from the complainant to the accused. Whatever the suggestion made at later stage, as through PW.2, the accused has assured to repay the said loan amount by sold his property at K.R.Pet Taluk. So, the evidence of DW.1 made clear that, he withstood his probable defence and reasserted that, he gave his blank cheque to the loan given to DW.2 of Rs.75,000/- by the complainant. Nothing has elicited from the mouth of DW.1, as to prove the guilt of the accused in the line of complaint allegation. Even though, against whom the serious allegation is made as to borrowal of loan of Rs.3 lakhs, to whom also the complainant has not suggested the exact date, time, Judgment 23 C.C.14031/2013 place and where the alleged money was paid. Thereby, the DW.1 has successfully withstood for cross-examination.
29. That apart, to prove the probable defence of the accused, as he undertaken to examine the said Rajesh, who borrowed sum of Rs.75,000/- from the complainant at the instance of the accused during June, 2011 examined as DW.2. Even, he himself entered into the witness box and filed affidavit evidence reasserted the very same facts narrated by the accused. The DW.2 in his cross-examination also withstood the same contention of borrowal of loan of Rs.75,000/- from the complainant through accused in the month of June, 2011. Even, in his cross- examination he clearly stated that:
"£Á£ÀÄ DgÉÆæAiÀÄ §½ ¸Á®ªÀ£ÀÄß PÉýzÉÝ£ÀÄ, DzÀgÉ DvÀ vÀ£Àß ¸ÉßûvÀ gÀªÉÄñï gÀªÀjAzÀ gÀÆ.75,000/- ªÀ£ÀÄß 2011 gÀ dÆ£ï wAUÀ¼À°è PÉÆr¹zÀÝgÀÄ. gÀªÉÄñï gÀªÀgÉ £À£ÀUÉ ¸ÀzÀj ¸Á®ªÀ£ÀÄß PÀÉÆnÖzÀÝgÀÄ. DUÀ gÀªÉÄñï gÀªÀjUÉ £Á£ÀÄ ºÀ¼ÉAiÀÄ ¸ÀA§¼ÀzÀ SÁvÉ EgÀĪÀ ¨ÁåAPï£À ZÉPÀÌ£ÀÄß PÉÆqÀÄvÉÛãÉAzÀÄ ºÉýzÁUÀ, DvÀ ¨ÉÃqÀ JAzÀÄ DgÉÆæAiÀÄ SÁ° ZÉPÀÌ£ÀÄ ¥ÀqÉ¢zÀÝgÀÄ."
30. The said testimony of DW.2 reveals the same facts, as to borrowal of loan by himself from the complainant at the instance of accused. Even, he specifically stated that, when the DW.2 was Judgment 24 C.C.14031/2013 told the complainant that, his old salaried account cheque would be given to the complainant while borrow the loan, he denied and asked the accused to give singed blank cheque. Therefore, it made clear that, since accused salaried account cheque was not operated, as he left the earlier job and since, 2011 onwards he did worked with his uncle, the said uncle did contract work at Sunkadakatte. Therefore, it also some force in the evidence of DW.2 in asking the cheque of the accused, as he introduced the DW.2 to the complainant. Therefore, to disbelieve the evidence of DW.2 nothing has whispered anything to support the case of complainant. The evidence of DW.1 and DW.2 has clearly manifest the probable defence of the accused, hence, it reveals burden on the complainant to prove his case beyond the reasonable doubt that, to punish the accused for the guilt of the offence punishable under Section 138 of Negotiable Instruments Act.
It is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi). Wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required Judgment 25 C.C.14031/2013 to be proved by the complainant. However, it is essentially a question of fact".
In 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".
In the decision of AIR 2008 SC 278 between John K John V/s. Tom Verghees, the Hon'ble Apex court it is held that:
"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever Judgment 26 C.C.14031/2013 there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".
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.
32. On going through the complaint allegations, he alleged that, accused doing Suseel Tailoring Business at Kamalanagar. In that regard, he not caused any legal notice before file the present case, if at all, the complainant knew the said address. That apart, the complainant has alleged that, during June, 2011, the accused approached the complainant along with PW.2 seeking for the loan of Rs.3 lakhs to meet out the completion of accused house and for personal and domestic needs. If so, definitely, on which date the accused approached the complainant and on which date the complainant has mobilized the fund and handed over to the accused is not been pleaded. Therefore, the evidence of PW.1 in that regard required to be appreciate.
33. The PW.1 in his cross-examination has deposed that, he is Civil Engineer by profession since 24 years. The PW.1 in his cross-examination has deposed that:
Judgment 27 C.C.14031/2013
"DgÉÆæUÉ ¤ÃrzÀ ¸Á®zÀ ºÀtªÀ£ÀÄß, dÆ£ï 2011 gÀ ªÉÆzÀ®Ä ¨ÁåAPï¤AzÀ £ÀUÀ¢ÃPÀj¹PÉÆAr®è. dÆ£ï 2011 gÀ ªÉÆzÀ® ªÁgÀzÀ°è DgÉÆæ £À¤ßAzÀ gÀÆ.3 ®PÀë ¸Á® PÉýzÀÝgÀÄ. ¢£ÁAPÀ £É£À¦®è. DgÉÆæ PÉýzÁUÀ ºÀt PÉÆqÀ®Ä £À£Àß°è ºÀt EgÀ°®è. ¸ÁQëAiÀÄÄ £À£Àß HgÁzÀ PÉ.Dgï. ¥ÉÃmɬÄAzÀ ¸Àé¯à ºÀtªÀ£ÀÄß vÀj¹, £À£Àß°èzÀÝ ºÀtªÀ£ÀÄß ¸ÉÃj¹ DgÉÆæUÉ 2011 gÀ dÆ£ï PÉÆ£ÉAiÀÄ ªÁgÀzÀ°è £À£Àß ªÀÄ£ÉAiÀįÉèà DgÉÆæUÉ ¸ÀAeÉ ¸ÀĪÀiÁgÀÄ 7.00 jAzÀ 8.00 UÀAmÉAiÀÄ CªÀ¢üAiÀÄ°è PÉÆnÖzÉÝ£ÀÄ. ¢£ÁAPÀ ¤RgÀªÁV FUÀ £É£À¦®è. PÉ.Dgï. ¥ÉÃmÉAiÀÄ £À£Àß vÀAzɬÄAzÀ gÀÆ.50,000/- vÀj¹PÉÆArzÉÝ£ÀÄ. DgÉÆæUÉ JµÀÄÖ ªÀÄÄR ¨É¯ÉAiÀÄ £ÉÆÃl£ÀÄß ¤ÃrzÉÝ JAzÀÄ £É£À¦®è. DgÉÆæUÉ ºÀt ¤ÃrzÁUÀ AiÀiÁªÀÅzÉà PÀgÁgÀÄ ªÀiÁrPÉÆAr®è. ¸ÁQëAiÀÄÄ DgÉÆæ ªÀÄ£É PÀlÄÖªÀ ¸À®ÄªÁV £À¤ßAzÀ D ¸Á® ¥ÀqÉ¢zÀÝgÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. DgÉÆæ ªÀÄ£É PÀnÖ¸ÀĪÀ §UÉÎ AiÀiÁªÀÅzÉà zÁR¯ÉUÀ¼À£ÀÄß £À£ÀUÉ PÉÆnÖ®è."
34. On going through the above testimony of PW.1, it discloses, in order to pay the alleged loan to the accused, admittedly, the complainant has not withdraw any money from his bank account prior to June, 2011. Very particularly, the PW.1 has deposed that, in the 1st week of June 2011, accused asked for the loan of Rs.3 lakhs and he does not remember the date. Anyhow, peoples memories are short, it is highly impossible to remember the date Judgment 28 C.C.14031/2013 of request made by the accused. However, as the Rs.3 lakhs is huge amount, without obtaining any security document or collecting any other documents, at least maintaining the sufficient particulars, as to how he mobilized the fund, on which date, on whose presence and where the said money was transferred from the complainant to the accused could have been reflected, but the same is lacks in the pleading as well as cross of PW.1. Any how, the PW.1 in the cross-examination has clearly deposed that, when the accused asked for the money, in order to lent he had no money, but he volunteers that, from his home town K.R.Pet, he asked to send some money and by including his own money and mobilized so, and gave sum of Rs.3 lakhs to the accused during the last week of June, 2011 at his house in between 7.00 pm to 8.00 pm. The said evidence of PW.1 it also creates doubt, on the one hand, he clearly admitted that, much amount was not with him and he not discloses, what was the quantum of money he had possessed either by way of savings or in his account nothing has whispered. But further stating that, Rs.50,000/- were obtained from his father from his home town and gathered so, by adding his money gave it to the accused. If at all, on the 1st instance he deposed, he had no such money, if at all, he lacks only Rs.50,000/- and had the cash of Rs.2,50,000/-, definitely, he could Judgment 29 C.C.14031/2013 have been stated so, but it stated that, much money was not with him, then how he mobilized the fund, the complainant has not satisfactorily explained. If at all, he gave money to the accused, at least remember the denomination. But the PW.1 has deposed, he does not remember what was the denomination of notes given to the accused.
35. From the above piece of cross-examination clearly deposed that, while he gave money to the accused, no agreement was entered into between them. He more particularly stated that, for the purpose of construction of house, the accused borrowed the loan and in that regard, he not obtained any document. The PW.1 has specifically deposed earlier that, the accused is also his relative and friend. Therefore, he must know whether he constructed the house, what was its condition and as suggested the DW.1, he himself prepared a plan, therefore, from that point no evidence were deposed by the PW.1 to substantiate his contention as to the possession of Rs.3 lakhs as on the alleged ate and paid to the accused.
36. Even, the PW.1 has deposed that, he is an income tax assessee and as to the payment of loan to the accused were not disclose in his income tax returns. At least to show his financial Judgment 30 C.C.14031/2013 capacity, it was him to produce at least his bank pass book or income tax returns, which discloses the financial status, as earlier he deposed, he had no that much amount, hence, brought some of money from his father. The evidence of PW.1 itself reveals the factum of financial in capacity and mobilization of fund as such, as he alleged. When the PW.1 deposed that, while gave money to the accused, his friend PW.2 was there and he denied the suggestion that, he not gave money to the accused, but gave to the friend of the accused by name Rajesh, who is none other than DW.2 as security and signed blank cheque to the accused and as DW.2 not repaid the money, the complainant got filled the cheque of the accused and filed the false case is been denied. The evidence of PW.1 does not create link to prove the guilt of the accused.
37. Though PW.2 was examined, who alleged to be present while complainant gave money to the accused, he subjected for cross-examination. In the cross-examination, he deposed that, he knew the complainant and accused and also admitted the complainant and accused are relatives. Though, PW.1 has deposed, he does not remember, what was the denomination of notes handed over to the accused while gave loan, but the PW.2 took littler more interest in remembering date and deposed that: Judgment 31 C.C.14031/2013
"DgÉÆæ ªÀÄvÀÄÛ ¦AiÀiÁ𢠸ÀA§A¢üUÀ¼ÉAzÀgÉ ¸Àj. ¦AiÀiÁð¢ DgÉÆæUÉ gÀÆ.100/, gÀÆ.500/- ºÁUÀÆ gÀÆ.1,000/- ªÀÄÄR ¨É¯ÉAiÀÄ £ÉÆÃlÄUÀ¼À°è gÀÆ.3 ®PÀë PÉÆnÖgÀÄvÁÛgÉ. JµÀÄÖ PÀlÄÖUÀ¼ÀÄ EzÀݪÀÅ JAzÀÄ £É£À¦®è. ¦AiÀiÁð¢ DgÉÆæUÉ ºÀt ¤ÃqÀĪÁUÀ CªÀgÉÆA¢UÉ £Á£ÀÄ EzÉÝ£ÀÄ. ¦AiÀiÁð¢ vÀ£Àß vÀAzɬÄAzÀ gÀÆ.50,000/- vÀj¹PÉÆAqÀÄ G½zÀ ºÀtªÀ£ÀÄß DvÀ ºÉÆA¢¹ EnÖzÀÄÝ, MlÄÖ gÀÆ.3 ®PÀë DgÉÆæUÉ PÉÆnÖzÀÝgÀÄ. ¦AiÀiÁð¢ AiÀiÁªÀÅzÉà ªÉÆvÀÛ ¨ÁåAPï¤AzÀ £ÀUÀ¢ÃPÀj¹®è."
38. As per say of PW.2, the complainant gave denomination of Rs.100/, Rs.500/- and Rs.1,000/- in all Rs.3 lakhs and deposed that, he does not remember how much bundles were there. If at all, the complainant gave that much denomination notes, it is the complainant has disclose, but he does not remember. The PW.2 being a third person, who is only claiming witness, remember those particulars against say of PW.1, PW.2 has deposed, very much interestingly, therefore, it creates doubt. The PW.2 also deposed that, from his father, the complainant took Rs.50,000/- and remaining amount were adjusted by the complainant and kept with him and paid to the accused and complainant were not withdraw any money from his bank account. Therefore, the said testimony of PW.2 discloses, Rs.50,000/- were taken by the father of the complainant and the remaining amount were adjusted by Judgment 32 C.C.14031/2013 the complainant. If it was adjusted, through which source complainant was adjusted and added that money with the money given by the father of the complaint and paid to the accused is not been explained. The PW.2 was very much remembered the denomination of notes given by the complainant to the accused, but he does not remember, exactly on which date the said money was given to the accused. The PW.2 has deposed that, the accused during June, 2011 for the purpose of construction of house asked the loan with the complainant, by that time the engagement of the accused was also held. The said period is not stated by the complainant. The accused has contended that, in the year 2008-09 his mother constructed the house, but to show that, it was constructed in the year 2011 or later, nothing has stated by the PW.1 or PW.2.
39. The PW.2 has deposed that, he went to the house of accused and he not possessed any document to the house of accused. Even, PW.2 has deposed that, for interest not lent money to the accused, but while gave cheque; he also present and the accused not executed any document, as to borrowal of loan. The PW.2 has deposed that, the said cheque was given by the accused to the complainant during February, 2013 at about 5.00 pm in Kamalanagar house of the complainant. Even, he Judgment 33 C.C.14031/2013 deposed that, he does not remember the date, week of the alleged passing of loan from the complainant to the accused, but stated in the month of June, 2011. The evidence of PW.2 appears to be more interest, to supports the case of complainant then real fact. The PW.2 has specifically demonstrated, he was present and in his presence exactly the loan was disbursed by the complainant to the accused is not been proved. How the complainant try to prove his case, by way of examining himself as well as PW.2, likewise, the accused also proved his probable defence, through the evidence of DW.1 and DW.2. On comparative appraisal of the evidence led by the parties as well as their witnesses coupled with documentary evidence, there is some weight in the probable defence placed by the accused, but to prove the guilt of the accused, the complainant has not placed, clear, clinching, cogent and convincing evidence to punish him for the alleged offence. Therefore, it is considered opinion of this court, the complainant has utterly failed to plead and prove the alleged passing of consideration of Rs.3 lakhs from him to the accused and for its discharge, the accused got issued the questioned cheque. Mere because of the questioned cheque bares the signature of the accused; it does not suffice to consider the guilt of the accused. Whatever the benefit of doubt arise on Judgment 34 C.C.14031/2013 appraisal of evidence, it should be given to the accused. Accordingly, the accused has successfully established his probable defence by rebut the case of complainant. Hence, the accused is entitled for benefit of doubt for acquittal.
40. 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".
41. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused Judgment 35 C.C.14031/2013 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 rebut presumptions available in favour of complainant under Sections 118 and 139 of Act, Order acquitting accused for offence under S. 138 proper".
42. 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.3 lakhs to the accused. Thus, that fact itself is sufficient to infer that, accused is able to Judgment 36 C.C.14031/2013 rebut presumptions available in favour of complainant under Sections 118 and 139 of the Negotiable Instruments Act.
43. 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.3 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.3 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 37 C.C.14031/2013
Apart from that, in a decision reported in, KCCR 12 (3) page 2057, the Hon'ble Apex Court held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
44. 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.3 lakhs 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.3 lakhs 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.3 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
45. 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 Judgment 38 C.C.14031/2013 Ex.P1 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
46. From the careful appreciation material evidence on record, it is very much clear that, without there being any money transaction between the complainant and accused, only with an intention causing harm to the accused, the complainant has lodged the instant complaint before this court, that too, in case like 2013. There is no material piece of evidence produced by the complainant before this court to substantiate it.
47. 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, Judgment 39 C.C.14031/2013 accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
58. 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.3 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.
49. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 40 C.C.14031/2013
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 11th day of November - 2019) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Ramesh.M.R PW.2 : Puttaswamy
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 & P5 : Postal receipts Ex.P6 : Postal Acknowledgment card Ex.P7 : Unserved R.P.A.D cover
List of Witnesses examined on behalf of the defence:
DW.1 : Mahadeva
DW.2 : Rajesh
Judgment 41 C.C.14031/2013
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 42 C.C.14031/2013
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.Judgment 43 C.C.14031/2013
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXX Judgment 44 C.C.14031/2013 IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY Dated this the 5th day of July - 2017 PRESENT: SRI. S.G.SALAGARE, B.Sc., LL.B.,(Spl) XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.14031/2013 JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : M.R.Ramesh,
Aged about 35 years,
S/o.Rajegowda,
R/at. No.1118/1, 3rd Floor,
2nd Cross, NGO's Colony,
Kamalanagar,
Bengaluru-79.
(Rep. by Sri.G.N.Dhananjaya, Adv.)
V/S
Accused : Mahadeva,
S/o. Marigowda,
Aged about 30 years,
Door No.167, 1st Cross,
Kempegowda Layout,
Bengaluru-58.
Permanent Address:
Mahadeva,
S/o.Marigowda,
Aged about 30 years,
Kapanahalli,
Doddanakatta Post,
K.R.Pet Taluk,
Bokankare Hobli,
Mandya District,
Mandya-571 426.
(Rep. by Smt.Usha.M.S, Adv.)
Judgment 45 C.C.14031/2013
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 05.07.2017.
(S.G.SALAGARE)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
This complaint is filed by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as under:
Complainant and accused are knew each other, and both are relatives and also staying in the same area. Accused was working as tailor in the name and style as Suseel Tailoring at Kamalanagar, Bengaluru. During the month of June, 2011 accused along with Puttaswamy who is the T.V.Cable operator in the area of Kamalanagar, Bengaluru approached the complainant and requested for financial assistance of Rs.3 lakhs to meet the completion of house construction and for domestic purpose. Accused promised to repay the said amount within six months by Judgment 46 C.C.14031/2013 selling his agricultural property situated at Kapanahalli Village, Doddanakatta Post, K.R.Pet Taluk, Bokankare Hobli, Mandya District. After considering the request of accused, complainant had arranged and paid Rs.3 lakhs to the accused by way of cash in the month of June, 2011 in presence of Puttaswamy. After lapse of six months i.e., in the month of December, 2011, complainant demanded for return of amount, accused requested him to grant another six months time to return the hand loan and complainant also agreed for the same. After lapse of further six months, complainant demanded for return of amount, and in order to repay the borrowed amount, accused has issued a cheque bearing No.389328, dated:27.02.2013, drawn for Rs.3 lakhs drawn on Canara Bank, Kurubarahalli Branch, Bengaluru in favour of complainant and assured that the said cheque will be honoured on its presentation.
It is further case of complainant that, on 27.02.2013 accused requested the complainant to present the said cheque on 01.03.2013. As per instructions of accused, on 01.03.2013, the complainant has presented the said cheque through his banker viz., Vijaya Bank, (VJB) Branch BLR, M.S.Ramaiah Institute of Technology (MSR), Bengaluru for collection. On 02.03.2013, the said cheque was returned unpaid for the reasons "Funds Judgment 47 C.C.14031/2013 insufficient" in the account maintained by the accused. On 22.03.2013, the complainant brought this fact to the knowledge of accused by issuing demand notice through RPAD. The demand notice sent through RPAD to the native place of accused was duly served upon accused, and the demand notice sent through RPAD to the Bengaluru address was returned unserved with a shara "No such person in this address". After service of notice, accused has neither paid the cheque amount nor replied the notice. Hence, the complainant has filed the complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act and prayed to punish the accused with maximum sentence and to award compensation to the complainant.
3. My predecessor after perusing records, took cognizance of offence, and recorded sworn statement, ordered to register Criminal Case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused after service of summons put his appearance through his counsel and has been enlarged on bail. Thereafter, the court has recorded the plea of accused and the accused has pleaded not guilty of the offence and claims to be tried. Hence, the case was posted for trial.Judgment 48 C.C.14031/2013
4. The complainant in order to prove his case, got examined himself as PW-1 and got marked seven documents at Exs.P1 to P7 and closed his side. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under Section 313 of Cr.P.C., the accused denied all the incriminating evidence arisen against him.
The accused submitted he has defence evidence, but accused has not led defence evidence.
5. Complainant counsel submitted arguments of complainant side may be taken as heard. The accused side arguments is not led, hence the case is posted for Judgment on Merit.
6. The following points would arise for my consideration:
1) Whether the complainant proves beyond all reasonable doubt that, he had advanced Rs.3 lakhs hand loan to the accused, and accused has issued cheque bearing No.389328, dated:27.02.2013, drawn for Rs.3 lakhs drawn on Canara Bank, Kurubarahalli Branch, Bengaluru in favour of complainant for discharge of the said amount, and on its presentation, cheque came to be dishonoured for the reasons 'Funds Insufficient' and even after service of notice, the accused has failed to repay the amount and thereby accused is guilty of the offence punishable under Section 138 of N.I.Act?
2) What Order?Judgment 49 C.C.14031/2013
7. My findings on the above points are as under:
Point No.1 : In the Affirmative, Point No.2 : As per final order, for the following:
REASONS
8. POINT NO.1: It is alleged that, the accused had borrowed an amount of Rs.3 lakhs from complainant, and to discharge his liability accused has issued a cheque bearing No.389328, dated:27.02.2013, drawn for Rs.3 lakhs drawn on Canara Bank, Kurubarahalli Branch, Bengaluru in favour of complainant. When the said cheque was presented for encashment, same was dishonoured for the reasons 'Funds Insufficient'. Even after issuance of demand notice, accused has not made any arrangement for return of cheque amount. The accused has denied the accusation made against him.
9. To prove his case, the complainant got examined himself as PW.1 by filing his affidavit in lieu of his examination in chief evidence. In the affidavit, PW.1 has reiterated the averments made in the complaint and in support of his contention; PW.1 has got marked seven documents. Among them cheque bearing No.389328, dated:27.02.2013, drawn for Rs.3 lakhs is marked as Ex.P1. The said cheque is drawn on Canara Bank, Kurubarahalli Branch, Judgment 50 C.C.14031/2013 Bengaluru in favour of complainant. The signature of accused is marked as Ex.P1(a). Ex.P2 is the Bank Endorsement issued by the Vijaya Bank, the contents of Ex.P2 disclose that, the cheque bearing No.389328, drawn for Rs.3 lakhs is dishonoured for the reasons 'Funds Insufficient'. Ex.P3 is the Demand Notice dated: 22.03.2013, the recitals of Ex.P3 disclose that, the complainant has issued this notice to the accused through his counsel. By issuing this notice complainant called upon the accused to repay the cheque amount of Rs.3 lakhs within 15 days from the date of receipt of notice. Exs.P4 and P5 are the Postal Receipts, Ex.P6 is the Postal acknowledgment card and Ex.P7 is the unserved postal cover.
10. The order sheet and records disclose that, accused has appeared through his counsel and got released on bail. Complainant got examined himself as PW.1 by filing his affidavit in lieu of examination in chief. Though accused has appeared through his counsel, but not cross-examined PW.1, hence cross- examination of PW.1 was taken as closed and the case was posted for recording of accused statement under Section 313 Cr.P.C. On 20.06.2017 the accused statement was recorded, accused has denied the incriminating circumstances and submitted he has defence evidence. Accused has taken sufficient time, but he has not denied the claim of complainant by cross- Judgment 51 C.C.14031/2013 examining PW.1 and by adducing defence evidence. When accused has not cross-examined PW.1, an inference has to be drawn that, accused has admitted that, Ex.P1 cheque belongs to him and signature marked at Ex.P1(a) is that of him. When accused has not disputed the cheque and signature, the initial presumption arises in favour of complainant under Section 118(a) of Negotiable Instruments Act that, complainant is holder of cheque Ex.P1 for valid consideration. Further, from the perusal of records, it reveals that complainant has complied the provisions of Section 138 of Negotiable Instruments Act. Hence, the initial presumption under Section 139 of Negotiable Instruments Act arises in favour of complainant that accused has issued the cheque Ex.P1 for discharge of legally recoverable debt. The initial presumptions arisen in favour of complainant under Sections 118(a) and 139 of Negotiable Instruments Act are rebuttable presumptions, and accused is at liberty to rebut the presumptions by cross-examining PW.1 or by adducing the defence evidence or by both.
11. PW.1 has clearly stated in the evidence affidavit that, in the month of June, 2011 accused along with Puttaswamy who is the T.V.Cable approached the complainant and requested for financial assistance of Rs.3 lakhs to meet the completion of house Judgment 52 C.C.14031/2013 construction and for domestic purpose, and accused promised to repay the said amount within six months, after considering the request of accused, complainant has paid Rs.3 lakhs to the accused by way of cash in the month of June, 2011 in presence of Puttaswamy. Later, in order to repay the borrowed amount, accused has issued Ex.P1 cheque in favour of complainant. When he has presented the said cheque for encashment, same was dishonoured for the reasons 'Funds Insufficient'. PW.1 further stated that, he got issued the demand notice to accused on 22.03.2013 through RPAD, and the said demand notice was duly served upon accused.
12. Accused has appeared in this case, but he has not choosen to cross-examine PW.1. When accused has not cross-examined PW.1 and not adduced the defence evidence, an inference can be safely drawn that, accused has borrowed an amount of Rs.3 lakhs from the complainant and issued Ex.P1 cheque for discharge of said amount of Rs.3 lakhs. If the accused does not dispute the cheque and signature, then the burden is on the accused to prove that Ex.P1 cheque was not issued for discharge of legally recoverable debt. To rebut the presumptions and also to disprove the case of complainant, accused has not entered the witness box and also accused has not choosen to cross-examine PW.1. Judgment 53 C.C.14031/2013 Accused has also not disputed the receipt of legal notice and thereby accused has not disputed the contents of statutory notice Ex.P3. Accused has denied the incriminating evidence, but he has not adduced the defence evidence. The mere denial of incriminating evidence is not sufficient to hold that, accused is innocent of the alleged offence; accused has to establish that no transaction has taken place between himself and complainant.
13. From the perusal of evidence placed on record it is crystal clear that, accused has issued the cheque Ex.P1 in favour of complainant for discharge of his legal liability. The documents marked at Exs.P1 to P7 disclose that, the complainant has complied the provisions of Section 138 of Negotiable Instruments Act. The documentary evidence and oral evidence adduced by the complainant has remained unchallenged, un-rebutted and un- controverted. There is no reason to disbelieve the case of complainant. The complainant has proved that, accused has issued the cheque Ex.P1 for discharge of his legal liability. Hence, complainant has proved that, accused has committed an offence punishable under Section 138 of Negotiable Instruments Act. In view of the above said reasons, I hold point No.1 in the Affirmative.
Judgment 54 C.C.14031/2013
14. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused is sentenced to pay total fine amount of Rs.4,00,000/- (Rupees Four lakhs only). In default accused shall under go simple imprisonment for 03 (three) months.
Out of the total fine amount a sum of Rs.3,95,000/- (Rupees Three lakhs ninety five thousand only) is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.5,000/- (Rupees five thousand only) shall be remitted as fine to the State.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to the Stenographer directly on computer typed by him, corrected and then pronounced by me in the open court on this the 5th day of July - 2017) (S.G.SALAGARE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 55 C.C.14031/2013ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Ramesh.M.R 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 & P5 : Postal Receipts Ex.P6 : Postal acknowledgment card Ex.P7 : Unserved postal cover
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.
05.07.2017.
Comp -
Accd -
Judgment 56 C.C.14031/2013For Judgment Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused is sentenced to pay total fine amount of Rs.4,00,000/- (Rupees Four lakhs only). In default accused shall under go simple imprisonment for 03 (three) months.
Out of the total fine amount a sum of Rs.3,95,000/- (Rupees Three lakhs ninety five thousand only) is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.5,000/- (Rupees five thousand only) shall be remitted as fine to the State. The bail bond and surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
Judgment 57 C.C.14031/2013XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.