Bangalore District Court
Ravi.V vs Lokesh.R on 13 June, 2019
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 13th day of June - 2019
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.1641/2017
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Ravi.V,
S/o.Venkataramaiah,
Aged about 34 years,
R/at No.113, 3rd Cross,
Near Deepanjalinagar,
Mysore Road,
Bengaluru-26.
(Rep. by Sri.K.Venkatesh Murthy,
Advocate)
V/S
Accused : Lokesh.R,
S/o.Ramanna,
Aged about 34 years,
Nisarga Dhaba, B.M.Road,
N.C.C.Gate, Bidadi,
Ramanagar Taluk & District.
And also at:
C/o. Kasilingaiah,
R/at. Bile Doddi,
M.G.Palya Post,
Bidadi Hobli,
Ramanagar Taluk & District.
(Rep.by Sri.Dasegowda, Advocate)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.1641/2017
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 13.06.2019.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 30.10.2014 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.4 lakhs.
2. The complainant earlier on 30.10.2014 has filed the present complaint under Section 200 of Cr.P.C. against the accused for the offence punishable under Section 138 of Negotiable Instruments Act before the learned Addl. Civil Judge and JMFC, Ramanagara, later from the point of jurisdiction, the same got transferred to this court as per order dated:15.12.2016.
3. The brief facts of the complainant case is as follows:
The complainant has averred that, the accused was close friend of him and he was running a Nisarga Dhaba at Bidadi, Ramanagar District, as such, he approached the complainant in Judgment 3 C.C.1641/2017 the month of October, 2013 and requested him to the loan of Rs.4 lakhs for the purpose of improving his business. Accordingly, on 05.12.2013, the complainant has lent sum of Rs.4 lakhs to the accused and he undertakes to repay the same within 8 months.
The complainant has alleged that, in the month of August, 2014, when he demanded for the repayment of loan, the accused got issued the cheque bearing No.000037 for Rs.4 lakhs dated:20.09.2014 drawn on Kotak Mahindra Bank, Bidadi Branch, Ramanagar District, in favour of the complainant, towards discharge of his legal liability and while issuing the said cheque, he assured to maintain sufficient money in his account.
The complainant has further contended that, believing the version and promise of accused, complainant had presented the said cheque for encashment through his banker viz., Vijaya Bank, Vijayanagar Branch, Bengaluru. When he came to see the endorsement dated:24.09.2014, he got utter shock and surprise, as the said cheque came to be dishonoured for the reasons "Funds Insufficient". Immediately, the complainant informed the same to the accused, but he not made any arrangement to pay the cheque amount. Therefore, he through his counsel got issued legal notice to the accused by R.P.A.D on 29.09.2014, but it was Judgment 4 C.C.1641/2017 returned stating "Not Available and party Absent" on 30.09.2014 and 13.10.2014. Even after grace period of 15 days from the date of return of notice accused has neither paid the cheque amount nor replied the notice. Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
4. 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.
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 Ex.P1 to P7. The PW.1 was subjected for cross-examination by the advocate for the accused.
Judgment 5 C.C.1641/2017
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 and got marked 5 documents at Exs.D1 to D5 and also subjected for cross-examination by the advocate for the complainant.
8. I have heard the arguments of accused counsel. The complainant counsel has 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.4,00,000/- on 05.12.2013 as hand loan to the accused?
2) Whether the complainant proves beyond the reasonable doubt that, towards discharge of legal recoverable debt, the accused issued the Ex.P1 cheque bearing No.000037, dated:20.09.2014 for sum of Rs.4 lakhs drawn on Kotak Mahindra Bank, Bidadi Main Road, Bidadi?
3) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
4) What Order?
Judgment 6 C.C.1641/2017
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 : In the Negative Point No.4 : As per final order, for the following:
REASONS
11. POINT NOs.1 to 3: Since all these 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.000037 issued by the accused for sum of Rs.4 lakhs dated:20.09.2014, drawn on Kotak Mahindra Bank, Bidadi Main Road, Bidadi.
b) Ex.P1(a) is the alleged signature of accused.
c) Ex.P2 is the Bank Memo dated:24.09.2014.
d) Ex.P3 is the Legal Notice dated:29.09.2014.
e) Exs.P4 and P5 are the Postal receipts.
f) Exs.P6 & P7 are the unserved R.P.A.D covers.Judgment 7 C.C.1641/2017
The PW.1 was subjected to the cross-examination by the advocate for the accused.
12. In order to prove the defence of the accused, he himself choosen examined as DW.1 and produced the documents at Exs.D1 to D5. They are:
a) Ex.D1 is the Notarized copy of Aadhaar Card pertaining to the accused herein issued by Unique Identification Authority of India.
b) Ex.D2 is the Notarized copy of Voters Identity Card pertaining to the accused herein issued by Election Commission of India.
c) Exs.D3 and D4 are the photographs and
d) Ex.D5 is the C.D.
13. The DW.1 was subjected to the cross-examination by the advocate for the accused. Apart from lead defence evidence, the DW.1 through his counsel has produced the citations and relied upon same. It is:
a) ILR 2008 KAR 4629
14. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
15. After cross-examination of PW.1, the incriminating evidence made against the accused was read over and explained to him as Judgment 8 C.C.1641/2017 required under Section 313 of Cr.P.C., wherein, he simply denied the incriminating evidence made against him and said he is having defence evidence. Accordingly, the accused entered into the witness box and orally examined as DW.1. The DW.1 has orally deposed that, he does not know the complainant and after institution of present case against him he learnt about the complainant, then he came to know that, he is none other than the friend of the son of complainant auntie's son. He deposed that, as alleged by the complainant, he not borrowed loan of Rs.4 lakhs and for repayment of the same, he not issued the questioned cheque in favour of the complainant and while he borrowed loan from one Naveen, who is his relative of Rs.1 lakh on the security of unsigned blank cheque as well as document of Etios Car in the year 2014. The complainant never contacted him over phone for payment of loan. The legal notice issued by the complainant was not served on him and he was not residing in the address at Bile Doddi and he is residing in door No.18, M.Gopahalli, M.G.Palya Post, Bidadi Hobli, Ramanagara Taluk and District, since 2014. He not received any legal notice from the complainant, he not gave any reply to him and he is not liable to pay any money including cheque amount to the complainant. Hence, prayed for his acquittal.
Judgment 9 C.C.1641/2017
16. The accused in support of his contention, to show that, he is residing in different address, then mentioned in the legal notice, choosen to produced the notarized copies of Aadhaar Card, Voters Identity Card as per Exs.D1 and D2 and also produced photographs and C.D. at Exs.D3 to D5. the DW.1 was subjected for cross-examination from the side of advocate for the complainant.
17. During the course of cross of DW.1, he re-asserted that, he is studied upto 10th standard and doing tailoring business. More particularly, the DW.1 has admitted that, the questioned cheque is of him, but not admitted the signature found therein is of him. He very particularly re-asserted that, in the year 2013, he borrowed loan of Rs.1 lakh from one Naveen, on the guarantee of questioned cheque and he does not remember, when he borrowed the loan as alleged. He also deposed that, he does not remember, exactly when unsigned questioned cheque was given to the said Naveen, but stated in the year 2013, he gave as such.
18. During the course of cross-examination of DW.1, he deposed that, Etios Car bearing Reg.No.KA-42 M 4140 was in his name and since he not paid the installment of loan, the bank officials had seized the said car. He also stated that, he had no Judgment 10 C.C.1641/2017 impediment to produce any document, as to the said car was stood in his name. The said suggestion as to the accused was possessed the car as such and came to be seized by the bank, remains unchallenged, as no suggestion for denial was made. During the course of cross of DW.1, with regard to whereabouts he deposed stating that, his hometown is at M.Gopahalli of Bidadi Hobli, wherein, his father and mother were residing. The DW.1 has admitted running of Nisarga Dabha at Bengaluru - Mysore Road and he clearly admitted, for the 5 years, he run the said business and got closed 4 months earlier to the date of deposition on 06.02.2019. The accused was running Dabha as alleged in the complaint as well as it got closed about 4 months back, when he entered into the witness box, the said factum was remains unchallenged.
19. The DW.1 in his further cross-examination has deposed that, Pushpalatha is his wife and Kashilingaiah and Rathnamma are father and mother of my wife. He also admitted that, Bile Doddi is the place of his wife and she is only the daughter to her parents. For that reason, the accused came to reside in the house of his wife at Bile Doddi was clearly denied by the accused. The DW.1 has admitted that, the earlier old house of the wife of accused came to be destroyed and wherein, new house Judgment 11 C.C.1641/2017 construction was going on is been admitted. Very particularly, the DW.1 has deposed that, as per Exs.P4 and P5, which are none other than postal receipts, the complainant got issued legal notice to the address of Nisarga Dabha and the address of his wife were denied by the DW.1. It is appropriate to focus on Exs.P4 and P5 postal receipts, which discloses the two addresses of the accused at Bidadi and it does not disclose the detailed address as mentioned in the Ex.P3 legal notice or cause title address, but discloses, the complainant got issued the legal notice to the address of Nisarga Dabha or to the address of his wife. Therefore, it is requires to produce the unserved postal cover returned to the complainant, but except Ex.P6, which is none other than the unserved postal cover by stating party absent past from 7 days, hence returned to sender. The said address is at Bidadi Hobli, the complainant has claiming it is the address of wife of the accused. In order to show that, he gave legal notice to the address of Nisarga Dabha, wherein, accused was run the business, no document is been placed. Even, to show that, to the said address, legal notice was sent, the complainant has not choosen to collect the track consignment report or any reply from the postal authority. Therefore, to establish the factum of issue legal notice to the address of Nisarga Dabha, no document been Judgment 12 C.C.1641/2017 placed by the complainant, hence, the factum of issue legal notice to Nisarga Dabha is ruled out.
20. The DW.1 has further deposed by way of denial that, though he is residing in the address at Ex.P6, by advise the postman to mentioned as party absent and send back to Ex.P6 unserved postal cover. If at all, the accused was present in the address made mentioned in the Ex.P6, the postman no need to wait for the period of 7 days as endorsed. If at all, the accused was residing in the said address, definitely, would have been communicated though, the accused not came forward to collect the said cover, then he could have endorsed unclaimed. But the said endorsement discloses, the accused remained absent for the period of 7 days in the said address. The accused has specifically stated that, he is not residing in the address made mentioned at Ex.P6, which is his wife's house, but specifically stated, as per Exs.D1 and D2 address, he used to reside, to the same the complainant though claimed to have the friend of accused not cause any legal notice for the reasons best known to him. The Ex.P6 disclosed, as required under Section 138(b) of Negotiable Instruments Act, the mandatory provision not complied by way of service of legal notice to the accused. Thereby, complainant has not complied the said provision as to service of legal notice or Judgment 13 C.C.1641/2017 refusal of the same made by the accused. Hence, expecting the reply notice to the said legal notice from the part of the accused does not arise.
21. The DW.1 in his cross-examination has specifically stated that:
"FUÀ®Æ £ÁªÀÅ ºÉAqÀwAiÀÄ ºÀ¼ÉAiÀÄ ªÀÄ£ÉAiÀÄ£ÀÄß PÉqÀ« C°è ºÉƸÀ ªÀÄ£ÉAiÀÄ£ÀÄß PÀlÄÖwÛzÉÝÃªÉ JAzÀgÉ ¸Àj. ¤¦.4 ªÀÄvÀÄÛ 5 gÀ ¥ÀæPÁgÀ ¤¸ÀUÀð qÁ¨Á ªÀÄvÀÄÛ £À£Àß ºÀÉAqÀwAiÀÄ ªÀÄ£ÉAiÀÄ «¼Á¸ÀPÉÌ ¦AiÀiÁ𢠤¦.3 gÀ £ÉÆÃn¸À£ÀÄß JgÀqÀÆ «¼Á¸ÀPÉÌ PÀ¼ÀÄ»¹PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸ÁQëAiÀÄÄ £À£ÀUÉ vÀ®Ä¦®è JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¤¦.6 CAZÉ PÀªÀgï£À°ègÀĪÀ £À£Àß ºÀÉAqÀwAiÀÄ ªÀÄ£ÉAiÀÄ «¼Á¸À JAzÀgÉ ¸Àj. £ÁªÀÅ D «¼Á¸ÀzÀ°è ªÁ¸À ªÀiÁqÀÄwÛzÀÄÝ, CAZÉ ¥ÉÃzÉ ¤¦.6 gÀ CAZÉ PÀªÀgï£ÀÄß £À£ÀUÉ eÁj ªÀiÁqÀ®Ä vÀAzÁUÀ DvÀ¤UÉ £Á£ÀÄ UÉÊgÀÄ ºÁdgÀÄ JA§ÄzÁV §gÉAiÀÄ®Ä w½¹zÀ ªÉÄÃgÉUÉ, DvÀ zÀÄgÀÄzÉÝñÀ¢AzÀ §gÉzÀÄ PÀ¼ÀÄ»¹zÁÝgÉ JAzÀgÉ ¸ÀjAiÀÄ®è. £À«Ã£À¤AzÀ ¥ÀqÉzÀAvÀºÀ gÀÆ.1 ®PÀë ¸Á® £Á£ÀÄ FªÀgÉUÀÆ ªÀÄgÀ½¹®è. DvÀ £À£ÀߣÀÄß ªÀÄgÀ½¸ÀĪÀAvÉ PÉýzÀÝgÀÄ. F ¥ÀæPÀgÀtzÀ°è £Á£ÀÄ ºÁdgÁzÀ §½PÀ, £À«Ã£À¤UÉ ¤ÃrzÀ ZÉPÀÌ£ÀÄß ¦AiÀiÁ𢠧¼À¹PÉÆAqÀÄ F ¥ÀæPÀgÀt zÁR°¹zÀ §UÉÎ DvÀ¤UÉ £ÉÆÃn¸ï ¤ÃqÀ®Ä vÉÆAzÀgÉ EgÀ°®è. £À«Ã£À£ÀÄ ¦AiÀiÁð¢UÉ F ZÉPÀÌ£ÀÄß ¤ÃrzÀ §UÉÎ DvÀ£À «gÀÄzÀÞ ZÉPÀÌ£ÀÄß zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥Àr¹PÉÆAqÀ §UÉÎ oÁuÉUÉ zÀÆgÀÄ ¤ÃqÀ®Ä vÉÆAzÀgÉ EgÀ°®è. £Á£ÀÄ £À«Ã£À ªÀÄvÀÄÛ ¦AiÀiÁð¢UÉ ZÉPï Judgment 14 C.C.1641/2017 zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥Àr¹PÉÆAqÀ §UÉÎ £ÉÆÃn¸ï ¤ÃqÀ®Ä vÉÆAzÀgÉ EgÀ°®è. CªÀj§âgÀ «gÀÄzÀÞ AiÀiÁªÀÅzÉà SÁ¸ÀV ¦AiÀiÁðzÀÄ zÁR°¸À®Ä vÉÆAzÀgÉ EgÀ°®è. ¤r.3 ªÀÄvÀÄÛ 4 ¥sÉÆÃmÉÆêÀ£ÀÄß F £ÁåAiÀiÁ®AiÀÄzÀ ºÉÆgÀ ¨sÁUÀzÀ°è ªÉƨÉʯï¤AzÀ £Á£Éà vÉUÉ¢gÀÄvÉÛãÉ. ¸ÀzÀj ¥sÉÆÃmÉÆÃzÀ°è PÀAqÀÄ §gÀĪÀ £À«Ã£À JA§ §UÉÎ PÀÄgÀĺÀÄ E®è JAzÀgÉ ¸Àj."
22. As per the say of DW.1, he openly stated that, the loan borrowed from Naveen of Rs.1 lakh is not been repaid. The said Naveen asked the accused to repay the loan amount. He also deposed that, after put his appearance in the present case, he no impediment to issue legal notice or police complaint against Naveen for misusing the said cheque. When the accused himself has appeared before this court, expecting to legal notice or lodge complaint is not mandates. It is him to establish that, he gave the questioned cheque to Naveen for the guarantee of repayment of Rs.1 lakh. Therefore, the non issuance of legal notice or lodging complaint against the Naveen, would not cause any hurdle. The DW.1 has produced photographs at Exs.D3 and D4 stating that, wherein, complainant and Naveen were seen. He also deposed that, he took photographs through his mobile, therefore, produced C.D at Ex.D5. The complainant was suggested that, in the photographs to show that, wherein, appears Naveen there is no Judgment 15 C.C.1641/2017 mentioning of proof, but not denied the presence of Naveen in the said photographs.
23. In the further cross-examination of DW.1, the complainant counsel suggested, the borrowing of loan of Rs.4 lakhs from the complainant on 05.12.2013 by the accused, the accused has denied the said suggestion and issuance of questioned cheque for its repayment. Therefore, it made clear that, the evidence of DW.1 creates some doubt, regarding genuineness of the very transaction put forth by the complainant. Hence, as required under Sections 118 and 139 of Negotiable Instruments Act, the accused has successfully established the contra circumstances, as to the questioned cheque came to the possession of complainant. Therefore, as required under Section 139 of Negotiable Instruments Act, which was the reverse burden casted upon the complainant to establish the factum of mobilized the fund of Rs.4 lakhs and handed over to the accused and in turn, for discharge of existence of legally recoverable debt, the accused got issued the questioned cheque.
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:
Judgment 16 C.C.1641/2017
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required 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: Judgment 17 C.C.1641/2017
"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 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".
24. 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.
25. It is the specific case of the complainant that, the accused sought for loan of Rs.4 lakhs in the month of October, 2013, he gave it on 05.12.2013 on the assurance that, within 8 months, accused would repay the same and later got issued the questioned cheque dated:20.09.2014, the same came to be dishonoured and not paid the money, even after issuance of legal notice. Whereas, the accused has time and again during the course of cross of PW.1 as well as his evidence specifically taken up the defence, he borrowed loan of Rs.1 lakh from his relative Naveen on the security of unsigned blank cheque and gave copies of documents pertaining to Etios Car, but he filed the present case through the complainant, though he not borrowed Judgment 18 C.C.1641/2017 any loan. From which, it made clear that, the accused attack on the claim of complainant stating that, at the instance of Naveen, the complainant has filed the false case. Therefore, it is the accused has to demonstrate the nexus of Naveen with the complainant in the present case. In that regard, it require to appreciate the cross-examination PW.1. During the course of cross of PW.1, he admitted that:
"DgÉÆæ £À£Àß ºÀwÛgÀ AiÀiÁªÀvÀÆÛ ºÀt ¥ÀqÉzÀÄPÉÆAr®è JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæUÉ ºÀt PÉÆqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £À«Ã£ï ªÀÄvÀÄÛ DgÉÆæ EzÀÝgÀÄ. DgÉÆæ PÁgï ¸ÀA§AzÀsªÁV ¥sÁgÀA £ÀA.39UÉ ¸À» ªÀiÁr PÉÆnÖgÀÄvÁÛgÉ. PÁj£À ªÀÄÆ® zÁR¯ÉUÀ¼À£ÀÄß £À£ÀUÉ PÉÆnÖgÀĪÀÅ¢®è. ¸ÀĪÀiÁgÀÄ 4-5 ¸À® DgÉÆæUÉ ¥sÉÆÃ£ï ªÀiÁr ºÀt PÉýzÉÝãÉ. ¸ÁQë ªÀÄvÉÛ ªÀÄÄAzÀĪÀjzÀÄ £Á£ÀÄ £À£Àß ¸ÉßûvÀgÀ ªÉƨÉÊ¯ï £ÀA§gïUÉ ¥sÉÆÃ£ï ªÀiÁqÀÄwÛzÉÝ, DUÀ £À£Àß ¸ÉßûvÀgÀÄ DgÉÆæAiÀÄ£ÀÄß £À£Àß eÉÆvÉ ªÀiÁvÀ£Ár¸ÀÄwÛzÀÝgÀÄ. £Á£ÀÄ AiÀiÁªÀvÀÆÛ DgÉÆæUÉ £ÉÃgÀªÁV ¥sÉÆÃ£ï ªÀiÁr ºÀt PÉýgÀĪÀÅ¢®è. DgÉÆæUÉ £ÉÃgÀªÁV ¥sÉÆÃ£ï ªÀiÁr ºÀt PÉüÀ®Ä vÉÆAzÀgÉ EgÀ°®è. £Á£ÀÄ DgÉÆæUÉ ºÀt PÉÆnÖgÀĪÀÅ¢®è, DzÀÝjAzÀ £Á£ÀÄ DgÉÆæUÉ £ÉÃgÀªÁV ¥sÉÆÃ£ï ªÀiÁr ºÀt PÉÆr JAzÀÄ PÉý®è JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæ ªÀÄvÀÄÛ £À«Ã£ï £ÀqÀÄªÉ ºÀtPÁ¹£À ªÀåªÀºÁgÀ DVvÀÄÛ, D ªÀåªÀºÁgÀzÀ°è DgÉÆæ £À«Ã£ïUÉ ¤ÃrzÀ ZÉPÀÌ£ÀÄß F PÉù£À°è £Á£ÀÄ G¥ÀAiÉÆÃV¹PÉÆArzÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀzÀj £À«Ã£ï F ¢£À Judgment 19 C.C.1641/2017 £ÁåAiÀiÁ®AiÀÄPÉÌ §A¢zÀÝgÀÄ JAzÀgÉ ¸Àj. CzÉà jÃw PÀ¼ÉzÀ ¢£ÁAPÀzÀAzÀÄ ¸ÀºÀ £À«Ã£ï £ÁåAiÀiÁ®AiÀÄPÉÌ §A¢zÀÝgÀÄ."
26. From the appraisal of the evidence of PW.1, it was specific defence of the accused denial of alleged borrowal of loan from the complainant, but the complainant has deposed that, at the time of alleged lent money to the accused, the relative of the accused and friend of the complainant was present. Though he deposed as such, not choosen to examine the said Naveen as one of the eye witness to the alleged transaction for the reasons best known to him. It also clearly admitted by the PW.1 that, the accused gave From No.29 with his signature. When it was the specific case of the accused, it was given to Naveen and complainant took the said document and filed the case, it is him to establish, why the said Form No.29 took from the custody of accused inspite of obtaining any necessary loan document, if at all disbursed any loan as such. From which, it made clear that, the Form No.29 of document pertaining to the vehicle of the accused came to the possession of complainant, but accused stated it was given to Naveen, not to the complainant herein.
27. In the above testimony, it also reveal that, he asked the accused about 4 to 5 time for repayment of loan and he Judgment 20 C.C.1641/2017 volunteers that, he directly not called to the accused, but through his friends telephone number he used to call the accused and his friends made him to talk with the accused. More particularly, he deposed that, he never directly called to accused asking for money and also stated there was no impediment him to make any such call. From the said testimony of PW.1, it also reveals that, if at all, accused was his friend, definitely, he must know the telephone number of him. In the earlier part of cross-examination, he deposed that, in the year 2013 which mobile number used by the accused, he does not know. If at all, accused was his friend, definitely, he must have his contact number at least being a lender he must know the particulars of the accused in order to make him contact asking for its repayment, but though alleged to be paid huge amount of Rs.4 lakhs, he does not have his mobile number and even not made single call directly to the accused is also created doubt as to the genuineness of transaction put forth by the complainant. He also deposed that, through his friend he used to made contact with the accused regarding demand of money. In that regard, he not examined any one of his friends as to prove all the conversation made and demand made by him for repayment of money.
Judgment 21 C.C.1641/2017
28. In the evidence of PW.1 reproduced above, it also reveal that, specific suggestion was put to PW.1 that, it was a transaction held between accused and his relative Naveen and he took cheque, but complainant by collecting cheque from him filed false case. No doubt, PW.1 has denied the same and It is significant fact to note that, as on the date of cross-examination of PW.1 as well as on the earlier hearing date, the said Naveen was accompanied with the complainant and were present in the court hall is being admitted by the PW.1. If at all, Naveen has not filed the present case through the complainant, despite there was serious allegation made by the accused regarding misuse of cheque by Naveen through the PW.1, definitely, the complainant could have examine the said Naveen, but for the best reasons known to him, he was very much present in the court and watched the proceedings. Why he took unnecessary interest in the matter between complainant and accused is also created doubt, regarding bonafidness of the complainant and Naveen. Despite, the serious allegation made against the complainant and Naveen, and the said Naveen only choosen to watch the proceedings in the court hall, but not entered into the witness box and try to vanish the allegation made by the accused as to handed over the questioned unsigned cheque with Form No.29 for the reasons Judgment 22 C.C.1641/2017 best known to him, it clearly manifest that, the Naveen is the key person manage to file the present case through the complainant, therefore, he was very much interested, then the complainant.
29. That apart, during the course of cross of PW.1, he deposed that, though he claimed to have contract business in Corporation as well as KPTCL, by obtaining necessary licence, he not choosen to produce the same as to disclose his financial capacity by doing such business. He deposed that, in the year 2013 he did contract work of Rs.40 lakhs and got the income of Rs.4 lakhs. Even, he said it was remitted to his bank account and no impediment to produce the same. If at all, in the year 2013, he had Rs.4 lakhs income, was it used for his personal or professional benefit nor kept the said money with him, enable him to pay the accused is also not been explained. If at all, it was his income of Rs.4 lakhs in the year 2013, if he gave money to the accused as alleged, how did he spend for his personal use or work is also not been satisfactorily explained. Moreover, despite his admission of remitting the said money to his bank account, he not produced his bank account details before this court for the reasons best known to him. He also clearly admitted that, he is not discloses the alleged payment made to the accused in his income tax assessment.
Judgment 23 C.C.1641/2017
30. From which, it discloses that, in order to show the financial capacity of the complainant as to held the requisite fund of Rs.4 lakhs on 05.12.2013, the complainant has not produced any document and the very material piece of document undertaken to produce by him has been withheld, for the reasons best known to him. Even though stated, Naveen was witness to the said transaction, for the best reasons known to him, he not choosen to examine before this court, to substantiate his contention. The accused strongly harping on the claim of complainant regarding denial of borrowal of loan, therefore, it was the incumbent on the part of the complainant to establish the possession of requisite fund and handed over to the accused. But no such document or evidence has been placed by him. If at all, he had any money, definitely, can be possible to gave it to accused without obtaining any piece of document, regarding receipt of money is also created doubt as to the bonafidness of the complainant in brought the present case. The complainant has contended that, after lapse of 8 months, when he asked for repayment, then accused gave the questioned cheque dated:20.09.2014, but it does not discloses, exactly when the said cheque was handed over to him.
31. On going through the Ex.P1-cheque, it clearly and apparently appears to the bare eyes, the signature and other Judgment 24 C.C.1641/2017 writings from the point of hand writing and ink appears tobe altogether different. Why the said discrepancy was made is not been explained. If at all, the accused borrow the loan for interest, at the time of borrowing loan and handed over the blank cheque, authorize him to fill by including interest as per Section 20 of Negotiable Instruments Act, then the inference would be differently drawn, but complainant has not contended as such. Under such circumstances, if at all, the accused gave the questioned cheque, it is the complainant has to establish who filled and execute the same and handed over to the complainant, but the discrepancy in hand writing and ink from the point of signature, it clearly manifest that, the accused has not filled the cheque. Therefore, it is also one of the circumstances has created doubt with regard to due execution and issuance of questioned cheque to the complainant.
32. As said earlier, if at all, the complainant knew the accused was running Nisarga Dabha business, definitely, he could have send notice to the said address, to show that, no notice has been sent. The complainant for the reasons best known to him collected the address of the wife of accused and gave legal notice at Ex.P6. But he utterly failed to demonstrate that, accused was residing in the address and avoided the service of legal notice. Judgment 25 C.C.1641/2017 The accused has successfully established that, as per Exs.D1 and D2, he resided therein to the said address no notice has been served on him. The photographs at Exs.D3 and D4 also discloses, Naveen was interested in attending the court, then the complainant it also one of the circumstances to draw the inference that, he projected the present case through the complainant.
33. As discussed above, the accused has successfully established that, he gave questioned cheque to Naveen along with Form No.29 in respect of borrowal of loan of Rs.1 lakh, not to the complainant herein. Therefore, the accused is not liable to pay any money, which covers under the questioned cheque. The complainant has not complied the mandatory provisions as to service of legal notice. Mere because of the amount made mentioned in the cheque and found the signature of the accused; itself does not creates burden on the accused to prove the amount as legally recoverable debt. In order to show that, the complainant had requisite money of Rs.4 lakhs enable him to pay accused, he not proved the physical money handed over to the accused. Unless he had money, the question of alleged lent to the accused does not arise. Therefore, in order to claim the amount made mentioned in the cheque as existence of legally Judgment 26 C.C.1641/2017 recoverable debt. The complainant has utterly failed to prove the same. Hence, the accused is entitled for acquittal.
34. 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 decision.
In the 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".Judgment 27 C.C.1641/2017
35. 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.4 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:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
36. 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.4 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 Judgment 28 C.C.1641/2017 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.4 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
37. From the above elaborate discussions, it very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Ex.P1 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
38. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be Judgment 29 C.C.1641/2017 presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
39. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Sections 118 and 139 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.4 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 Judgment 30 C.C.1641/2017 punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 to 3 are Negative.
40. Point No.4: In view of my findings on point Nos.1 to 3, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 13th day of June - 2019) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Ravi.V 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
Judgment 31 C.C.1641/2017
Exs.P6 & P7 : Unserved R.P.A.D covers
List of Witnesses examined on behalf of the defence:
DW.1 : Lokesh List of Exhibits marked on behalf of defence:
Ex.D1 : Notarized copy of Aadhaar Card
Ex.D2 : Notarized copy of Voters Identity Card
Exs.D3 & D4 : Photographs
Ex.D5 : C.D.
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 32 C.C.1641/2017
13.06.2019.
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.