Bangalore District Court
W/O Madegowda vs Has Explained His Financial Problems ... on 1 December, 2022
SCCH-2 1 C.C No:2444/2018
KABC020125892018
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL
CAUSES AND ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY (SCCH-2).
C.C. NO.2444/2018
Present: Smt. Shainey K.M. BAL.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACMM, Bengaluru.
Dated: On this the 1st day of December, 2022.
JUDGMENT U/S 355 OF CR.P.C. 1973.
1. Sl.No. of the Case : C.C.No.2444 of 2018
2. The date of : 01.06.2018.
commission of the
offence
3. Name of the : Smt. Nagamma,
Complainant
W/o Madegowda,
Aged about 40 years,
R/at No.7, 6th Cross,
BSK 3rd Stage,
SCCH-2 2 C.C No:2444/2018
Dwarakanagara,
Hosakerehalli,
Bengaluru-560 085.
(By Sri. K.L. Sreenivas, Advocate)
4. Name of the Accused : Ravi K.,
S/o Krishnegowda,
Aged about 35 years,
R/at No.23A, BSK 3rd Stage,
Besides Rajadhani Wines,
St. Annas Public School Road,
Veerabhadra Nagara,
Hosakerehalli,
Near PES College,
Bengaluru-560 085.
(By Sri. S. Jayanth, Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused is acquitted.
8. Date of such order for : 01.12.2022.
the following
SCCH-2 3 C.C No:2444/2018
:: JUDGMENT ::
This is a complaint against the accused filed under Sec.200 of Cr. P. C., for the offence punishable under Section 138 of the Negotiable Instruments Act.
02. The brief facts of the complainant's case is as follows:
2.1. It is contended that, parties to the case are known to each other and they are family friends. That on 24.11.2017 the accused has borrowed loan of Rs.3,00,000/- from the complainant for his legal necessity i.e., to discharge hand loans and also for other business.
The accused has also agreed to pay interest at 1½% on principal amount and promised to repay it within 3 months. After 3 months, when the complainant had demanded for repayment of loan with interest, the accused has explained his financial problems and requested to waive off the interest on principal amount. The accused has issued a cheque bearing No.026859 SCCH-2 4 C.C No:2444/2018 dated:26.02.2018 for Rs.3,00,000/- drawn on Bank of Baroda, Isro layout Branch towards repayment of debt. 2.2. The complainant had presented the aforesaid cheque through her banker for collection, and said cheque has been returned unpaid with a shara dated:01.03.2018 as "Account Blocked". That on 23.03.2018, the complainant issued a legal notice to accused through her counsel and same was duly served on the accused. Despite service of statutory notice, neither accused has replied the notice nor paid the cheque amount. Hence, this complaint.
03. On filing of the private complaint, the Court has taken cognizance of the above offence and proceeded with the case as there was ground to proceed against the accused.
04. The accused has put appearance before the court through his counsel, filed bail application, and offered SCCH-2 5 C.C No:2444/2018 cash surety for appearance before the court and enlarged on bail.
05. The plea of accused was recorded, read over and explained to the accused, for which, he has not pleaded guilty and claimed to be tried.
06. In support of complainant's case, complainant was examined as Pw:1. Exhibits were marked as Ex-P:1 to 5 and closed the evidence. Learned counsel for accused has cross examined P.w.1.
07. Statement U/Sec. 313 of Cr.P.C., was recorded and read over, explained to accused and he has denied the contents of statement as false. Accused has examined himself as D.W.1 and one witness examined as D.W.2. Exhibits were marked as Ex.D.1 to 5 in defence evidence.
08. Heard the arguments of accused. Accused has filed memo with decisions. Complainant has not submitted the arguments. Perused the material placed on record, SCCH-2 6 C.C No:2444/2018 now, following points arises of the consideration for the disposal of the case.
POINTS
1. Whether Complainant proves beyond all reasonable doubt that Accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
2. Whether accused has rebutted the presumption as contemplated u/sec 139 of N.I Act?
3. What order?
09. My answers to the above points are as follows:
Point no:1 : In the Negative.
Point no:2: In the Affirmative.
Point no.3: As per final order for the
following:
:REASONS:
10. Point No.1 & 2:- This is a private complaint filed
against the accused for the offence punishable under Sec. 138 read with section 142 of NI Act. On perusal of SCCH-2 7 C.C No:2444/2018 the oral and documentary evidence placed by the complainant, it reveals that the present complaint is filed well within time in accordance with the provisions of Negotiable Instruments Act. Moreover, there is no dispute with regard to taking cognizance of the offence punishable under Section 138 of N I Act.
11. At the outset, an essential ingredient of Section 138 of N.I Act is that the cheque in question must have been issued towards legal liability. Under Section 118 of the Act, a presumption shall be raised regarding consideration, date, transfer, endorsement and regarding holder in the case of Negotiable Instruments. Even under Section 139 of the Act, a rebuttable presumption shall be raised that, the cheque in question was issued regarding discharge of legally enforceable debt. These presumptions are mandatory provisions that are required to be raised in case of negotiable instruments.
SCCH-2 8 C.C No:2444/2018
12. It is the case of the complainant that, she has given hand loan to the accused on 24.11.2017 and cheque in question was issued by the accused towards repayment of debt.
13. To establish her case, complainant herein has filed the affidavit in lieu of examination-in-chief and examined herself as Pw:1 and she has reiterated the averments made in the complaint. She has produced the cheque in question, memo issued by the bank, office copy of legal notice, postal receipt and Postal Acknowledgment and a Pronote at ExP-1 to 5 respectively.
14. P.W.1 deposed that, accused has received the aforesaid amount on 27.11.2017 and issued the cheque in dispute in the month of February-2018. The date of loan transaction mentioned in the complaint and deposed in evidence of P.W.1 are contradicting with each other. In complaint the date of loan is mentioned as 24.11.2017, on the other hand, in cross-examination, P.w1 deposed SCCH-2 9 C.C No:2444/2018 that, date of loan transaction is 27.11.2017. The cheque was dishonoured with an endorsement stating the "S.B. Account of the accused was blocked" due to technical reason and it is evident from perusal of evidence of D.W.2. The accused has examined the Branch Manager namely Krishnappa D.R., as D.W.2. Ex.D.3 is an endorsement issued by the bank in respect of cheque bearing No.026859 i.e., Ex.P.1. This witness has produced the Statement of S.B. Account of the accused along with certificate under Sec.65-B of Evidence Act at Ex.D.4 and
5. D.W.2 has deposed that, S.B. Account of the accused has been in dormate since there was no active transaction done by him since 07.11.2014. No requisition was given by the accused to block the S.B. Account and it is evident from evidence of D.W.2.
15. It is just and proper to state the facts which is not in dispute. Accused and complainant herein are close relatives. Accused herein is the Nephew of the SCCH-2 10 C.C No:2444/2018 complainant herein. The complainant herein has lodged complaint with police against the accused prior to institution of this case. Ex.D.1 is the true copy of said complaint. Ex.D.2 is the acknowledgment issued by the Girinagar P.S., on the basis of complaint lodged by the complainant herein. It is stated in Ex.D.1 that, accused has received Rs.3,00,000/- from the complainant herein and Rs.3,50,000/- from the husband of the complainant herein as loan for the purchase of car and he had abused the complainant in filthy language when she demanded him for repayment of loan.
16. The evidence and material placed on record creates doubt in actual date of loan transaction allegedly taken place between the parties. The pleading of the complainant and examination-in-chief of P.w.1 says that, loan was advanced to the accused on 24.11.2017. On the other hand, the cross-examination of P.w.1 deposed that, date of loan transaction is 27.11.2017, which creates SCCH-2 11 C.C No:2444/2018 doubt in the mind of Court regarding the genuineness of claim of the complainant.
17. P.W.1 deposed in evidence that, accused herein has agreed to pay the interest on principal amount and said facts also has been stated in Ex.P.3-the statutory notice. To substantiate her contention, she has not placed any material before the court to show that, accused has agreed to pay the interest as contended by her. No contract or agreement is in existence between the parties to the case to show the alleged payment of interest on principal amount. P.w.1 deposed that, she has received a pronote from the accused as a security for the loan and she has produced said pronote at Ex.P.5 in her re- examination.
18. It is significant to note that, nothing has been written in Ex.P.5 either regarding the exact loan amount or rate of interest, because the pronote relied upon by the complainant is completely a blank document. Only SCCH-2 12 C.C No:2444/2018 signature of accused can be seen on blank paper i.e., Ex.P.5-the blank e-stamp.
19. It is significant to note that, Ex.P.5 has been purchased on 07.11.2014. One Manjanna and Ravi K.- Accused have been shown as 1st and 2nd party to Ex.P.5 and it was purchased for the purpose of drafting Rental Agreement as per description mentioned in the E-Stamp paper. The case in hand is filed in the year 2018. The loan transaction in dispute was took place in the year 2017. Even for sake argument, it is assumed that, accused has handed over Ex.P.5 to the complainant as a pronote for the security of loan, it is clear that, she had received aforesaid blank E-stamp paper (Ex.P.5) in the year 2014. So, a doubt would arise in the mind of the Court that, why the accused has handed over a blank e- stamp to the complainant in the year 2014.
20. The accused herein has replied the statutory notice of the complainant and he has stated in his reply that, SCCH-2 13 C.C No:2444/2018 the cheque in question was lost and it was misused by the complainant herein later. The complainant herein has not given any rejoinder to reply of the accused.
21. Financial Capacity:- The accused has denied the loan transaction with complainant. He denied the issuance of cheque to the complainant towards discharge of legally dischargeable liability. The signature of accused found in Ex.P.1(a) is also not in dispute at all. The financial capacity of the complainant to lend Rs.3,00,000/- is seriously challenged by the accused. In cross-examination P.W.1 has given an explanation about the source of income to lend money. P.W.1 deposed that, she has received the money through the lease transaction. However, to substantiate her contention, she has not placed any positive evidence before the Court to prove the alleged lease transaction and receipt of money from said transaction. The burden is lies on the complainant to establish her financial capacity to lend SCCH-2 14 C.C No:2444/2018 Rs.3,00,000/- the accused. However, she has failed to prove her financial capacity to lend money to accused as contended in the complaint.
22. Statutory Notice:- It is an admitted fact that, notice was duly served on accused and he did reply the statutory notice denying the allegation of Ex.P.3.
23. Firstly, the complainant has failed to establish the alleged loan transaction with the accused. The date of loan transaction mentioned in the complaint and in the evidence of P.W.1 are completely different contradicting with each other.
24. Secondly, complainant has failed to prove her financial capacity to lend money to the accused by placing cogent and corroborative evidence. She has not produced the Lease agreement to establish that she has received the money under said lease agreement prior to alleged loan transaction. This is a fatal to the prosecution case.
SCCH-2 15 C.C No:2444/2018
25. Thirdly, ExP:5 -E-stamp paper relied upon by the co is a incomplete document as it is a Blank Stamp paper and same is not sufficient to prove the alleged loan transaction or interest agreed upon by the parties to the transaction in dispute.
26. The materials available on record is not sufficient to believe the loan transaction in dispute. So, much discussion is not required in this case to hold that, accused is not guilty of the offence punishable under Sec.138 of N.I. Act. The accused has raised a probable defence.
27. In the light of the discussion herein above,this court is of the considered opinion that the complainant has failed to prove that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answer point No.1 in the Negative and point No.2 in the Affirmative. SCCH-2 16 C.C No:2444/2018
28. POINT No.3:- In the light of the reasons on the point No.1, I proceed to pass the following;
ORDER Acting under Section 255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
Bail bond of the accused and that of surety shall stand canceled.
(Dictated to the stenographer on official desktop, typed by her, corrected, signed, then pronounced by me in open court on this the 1st December, 2022) (Shainey. K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT P.W.1 : Smt. Nagamma.
LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Original Cheque dated:26.02.2018.
Ex.P.1(a) : Signatures of accused.
Ex.P.2 : Cheque return memo dt:01.03.2018.
SCCH-2 17 C.C No:2444/2018
Ex.P.3 : Copy of legal notice dt:23.03.2018.
Ex.P.3(a) : Postal receipt.
Ex.P.4 : Postal Acknowledgment.
Ex.P.5 : Blank singed Stamp Paper.
LIST OF WITNESSES EXAMINED BY THE ACCUSED D.W.1 : Sri. Ravi D.W.2 : Sri. Krishnappa D.R. LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED: Ex.D.1 : True copy of complaint lodged by the complainant.
Ex.D.2 : True copy of Police Acknowledgment. Ex.D.3 : Bank Memo related to cheque No.026859.
Ex.D.4 : Statement of Account of Ravi Ex.D.5 : Certificate U/Sec.65B of Indian Evidence Act. (Shainey K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.