Bangalore District Court
Sri. D.Keshava vs J.Anbu Sounder Rajan on 17 October, 2018
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY.
Dated this the 17th day of October, 2018.
Present : Sri.MADHVESH DABER, B.COM., L.L.B(SPL).,
XIX ADDL.C.M.M., BENGALURU.
Case No. C.C.No.16868/2017
Complainant Sri. D.Keshava
S/o Dodda Abbaiah,
Aged about 42 Years,
R/at # 6/1, Jakkasandra
Village, Koramangala Post,
Koramangala,
Bengaluru - 560 034.
V/s
Accused J.Anbu Sounder Rajan
Aged about 58 Years,
R/at No.4/4,1st Floor,
2nd Cross, Behind Canara Bank,
Madivala Post, Madivala,
Bengaluru 560 068.
Offence complained of U/s.138 of N.I.Act
Plea of accused Pleaded not guilty
Opinion of the Judge Accused not found guilty
Date of order 17th October, 2018
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s.138 of N.I.Act.
2 C.C.No.16868/20172. The brief facts of the complaint are that ;
The Complainant D.Keshava contends that the accused is known to him for four years and approached the complainant in the first week of January 2017 seeking financial help of Rs.6,00,000/- to meet his urgent needs and financial commitments and business purpose. The complainant having faith upon the accused paid a sum of Rs.6,00,000/- to accused by way of cash as hand loan in 2nd week of February 2017. After receiving the said amount the accused promised to return the said amount of Rs.6,00,000/- within three months. On the same day accused issued a cheque No.055163 dated 05.05.2017 for Rs.6,00,000/-drawn on Karnataka State Co-op, Apex Bank Ltd, Kormangala Branch, Bengaluru and assured the complainant that it would be honoured on its presentation. Accordingly, the complainant presented the said cheque for encashment. But to the shock and dismay of the complainant the said cheque was dishonoured for the reason "FUNDS INSUFFICENT". Thereafter, the Complainant got issued a Legal Notice on 15.05.2017 through is Advocate calling upon the accused to pay the cheque amount. Even though the said notice was duly served upon the accused, but the accused neither come forward to pay the cheque amount nor replied the notice. Hence, after complying all legal formalities, the complainant has filed this complaint against the accused. Hence, this complaint.
3 C.C.No.16868/20173. Soon after filing of the complaint, cognizance of the offence was taken. Matter was registered as P.C. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case. Summons was issued as against the accused. The accused appeared through his Counsel and he was enlarged on bail. Substance of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
4. The complainant got examined himself as PW1 and he got produced Eight documents Ex.P-1 to Ex.P-8 and closed his side. One Mr.Suresh has been examined as PW-2.
5. After closure of the complainant side evidence, accused Statement u/Sec.313 of Cr.P.C. was recorded. The accused denied the incriminating circumstances appearing against him as false. The accused has not led his defense evidence.
6. Arguments heard. I have perused the entire records.
7. Now, the points that arise for my consideration are as under :
i) Whether the Complainant proves that the accused in discharge of legally enforceable debt, issued cheque for Rs.6,00,000/-, which on presentation came to be dishonoured and he has failed 4 C.C.No.16868/2017 to honour the notice and not paid the amount and thereby, committed offence u/Sec.138 of N.I. Act ?
ii) What order ?
8. My findings to the above points for consideration are as under :
Point No.1 : In the Negative
Point No.2 : As per final order
for the following :
REASONS
9. Point No.1 : In order to prove his case, the Complainant namely D.Keshav entered into the witness- box and filed an affidavit in lieu of examination-in-chief and reiterated the complaint averments and got examined himself as PW-1 and he got produced Eight documents Ex.P-1 to Ex.P-8 from his end. One Mr.Suresh has been examined as PW-2. The accused has not led his defense evidence.
10. During arguments the learned counsel for the complainant argued that he had lent an amount of Rs.6,00,000/- to the accused and for repayment of the said amount accused issued cheque Ex.P-1 which on presentation came to be dishonored for the reason "FUNDS INSUFFICIENT". The complainant has issued legal notice to the accused. Hence, complainant has satisfied ingredients of Section 138 of N.I.Act. The version of complainant is supported by Ex.P-1 to 8. Though PW-1 5 C.C.No.16868/2017 was cross-examined, nothing was elicited in his cross- examination to disbelieve the complainant. He has produced documents to prove his financial capacity. On the other hand the PW-2 Suresh supported the case of the complainant. Accused has not led defence evidence. The defence of the accused is not established. The accused is a businessman. So, the notice issued to the accused was duly served upon him. Hence, the learned counsel for complainant prayed to convict the accused.
11. On the other hand the learned counsel for accused argued that there are so many infirmities in the cross-examination of complainant and PW-2 Suresh which improbablise the case of the complainant. During the relevant period of time when the complainant had allegedly paid Rs.6,00,000/- there had taken place demonetization of the currency notes in the Indian Economy. There was restriction on withdrawal limit. So, it is highly improbable that the complainant paid Rs.6,00,000/- at one stretch to accused in February, 2017. So, the version of both PW-1 and 2 do not inspire confidence in the case of the complainant. More over in the complaint it is alleged that Rs.6,00,000/- was paid at a stretch in February, 2017. But it was improved in the evidence of PW-1 and 2 that the amount of Rs.6,00,000/- was paid in two instalments that too in September, 2016 and February, 2017 which does not inspire confidence in the case of the complainant. So, the learned counsel for accused argued that the case of the complainant cannot be believed. That apart it is argued 6 C.C.No.16868/2017 that the notice was not received by accused. Postman and complainant colluded with each other and got prepared Ex.P-5 to show that the notice was duly served upon the accused. Hence, non-examination of postal authority is fatal to the case of the complainant. Hence, the learned counsel for accused prayed to acquit the accused.
12. In support of his arguments, the learned Counsel for the accused relied upon the following rulings ;
1. (2006) 6 SCC 39 M.S.Naryana Menon @ Mani V/s State of Kerala and Anr.
2. AIR 2008 SC 1325 Krishna Janardhan Bhat V/s Dattatreya G.Hegde.
3. ILR 2008 KAR 4629 Shivmurthy V/s Amruthraj.
4. IV (2012) BC 811 Baijnath Takur V/s State of Bihar and Anr.
5. IV (2012) BC 635 Gauraanga Dutta V/s State of Jharkhand and Anr.
6. Cr.A.No.119 of 2014 S.Sukumar V/s S.Sukumar
7. Appeal. (Crl) 1968 of 1996 Goa Plast (P) Ltd V/s Chico Ursula D'Souza.
7 C.C.No.16868/201713. I have carefully gone through the principles of above rulings relied upon by the learned Counsel for accused. Keeping in mind the principles of above rulings, I have examined the evidence on record.
14. It is trite principles of law that the presumption u/Sec.139 of N.I. Act is initially in favour of the Complainant that the cheque was issued for discharge of a legally recoverable debt or liability. However, the said presumption is rebuttable presumption. The Accused has to rebut the said presumption by taking a probable defence. The presumption can be rebutted even by eliciting facts from the cross-examination of PW1 or by leading defence evidence. For that Accused need not enter into the witness-box. Even the question of legally recoverable debt or liability can also be contested. Whether the presumption is rebutted or not? depends on facts and circumstances of each case. This principle is laid down by Hon'ble Supreme Court in AIR 2010 SC 1898 Rangappa V/s. V. Mohan. In the light of above principles of law now I have to see whether the presumption is rebutted or not? and Complainant has proved his case or not ?
15. The facts of the case of the complainant in brief are that the accused approached the complainant in the first week of January 2017 seeking financial help of Rs.6,00,000/-. Accordingly, the complainant paid a sum of Rs.6,00,000/- to accused in February 2017, for which 8 C.C.No.16868/2017 the accused issued a cheque No.055163 dated 05.05.2017. But on presentation the said cheque came to be dishonoured for the reason "FUNDS INSUFFICENT". Accordingly, after complying all legal formalities the complainant has filed this complaint against the accused.
16. It is to be noticed that accused has not led defense evidence. However, the defense of the accused is exposed in cross-examination of PW-1. It is pertinent to note that the accused has denied the entire transaction itself. It is contended that the accused has not at all received Rs.6,00,000/- in February, 2017 as alleged by complainant. It is contended that in 2013, the accused had obtained a loan of Rs.50,000/-. At that time the complainant had received a blank cheque from the accused, two blank signed cheques from the son and daughter of accused and three R.C.books of vehicles of accused on 09.11.2013. It is also alleged that the accused paid interest at the rate of 3% p.m. and he is paying now also. Except repayment of Rs.50,000/-, the accused is not bound to repay any amount to the complainant. Hence, it is the case of the accused that there was no transaction for Rs.6,00,000/- as alleged and cheque is not supported by consideration amount.
17. In the light of the above contentions raised by the accused if the entire facts are marshalled, it reveals that alleged transaction had taken place in February, 2017. At that time the Indian Government had demonetized the currency notes. At that time there was restriction on 9 C.C.No.16868/2017 withdrawal limit. It is pertinent to note that in the complaint the complainant has stated that he paid the entire amount of Rs.6,00,000/- in lumpsum to the accused in February, 2017. But if the evidence of complainant is perused, more particularly after production of his bank statement as per Ex.P-6 and 7, he has improved his version and stated that he has not paid the entire amount of Rs.6,00,000/- in one lumpsum. But paid it by drawing in different instalments. Though he has produced bank statements as per Ex.P-6 and 7, but there is nothing on record to show that he had drawn about Rs.6,00,000/- in February, 2017 on different dates. More over there is nothing on record to show that complainant had obtained permission for drawing an amount more than Rs.2,00,000/-. Similarly, there is nothing on record to show that he has drawn Rs.3,00,000/- on different dates in instalments. So, the contention of the complainant that he paid entire amount of Rs.6,00,000/- in February, 2017 cannot be believed. There is no reference of withdrawal of money of Rs.6,00,000/- alleged to be withdrawn during January to February, 2017 in different instalments. Hence, I am of the opinion that the version of the complainant cannot be believed.
18. It is true that the complainant has stated that the amount of Rs.6,00,000/- was paid in the presence of Mr.Suresh. In this regard Suresh has been examined as PW-2. Admittedly, it is not the case of the complainant that Rs.3,00,000/- was paid in September, 2016 and 10 C.C.No.16868/2017 Rs.3,00,000/- was paid in February, 2017. But PW-2 Suresh has improved his version stating that he was present at the time of payment of Rs.3,00,000/- each on different occasions which is not supported by any acceptable evidence. Hence, the contention of the PW-2 that he was present at the time of financial transaction between the complainant and accused, cannot be believed. The PW-2 was cross-examined at length. In his cross- examination also PW-2 has stated that complainant has paid Rs.3,00,000/- to accused in the first or 2nd week of September, 2016 and 2nd instalment was paid in February, 2017 which being beyond the pleadings, cannot be believed. More over he has improved his version by stating that the accused had taken back the cheque which was issued on the earlier occasion and issued Ex.P-1 in 2017, which is beyond the pleadings and cannot be believed. He stated that in 2017 accused had taken back the cheque without repayment of amount paid to him in September, 2016 which cannot be believed as there is no pleading in this regard. So, it is abundantly clear that the evidence of PW-2 cannot be believed. Hence, I am of the opinion that the version of both PW-1 and 2 cannot be believed to hold that the complainant has paid Rs.6,00,000/- to accused either in February 2017 or in two instalments i.e., September 2016 and February, 2017. It is also unbelievable that accused issued the cheque in February, 2017 for repayment of amount of Rs.6,00,000/-. Under these circumstances of the case, I am of the opinion 11 C.C.No.16868/2017 that the case of the accused seems to be probable. Hence, the complainant has failed to prove his case. Under the circumstances of the case, I am of the opinion that the contention of accused seems to be probable.
19. It is yet another contention of the accused that the notice U/s 138 of N.I.Act was not served upon him. However, Ex.P-5 reveals that it was served upon the accused. It is not the case of the accused that he was residing somewhere else other than the address shown in the notice. In this regard he has not led defense evidence and placed on record material to show that he was residing some where else. So, as per Sec.27 of General Clauses Act a presumption has to be drawn that it was properly served upon the accused. Hence, the notice upon the accused is duly served.
20. Considering the entire material on record, I am of the opinion that the complainant has failed to prove his case to the satisfaction of the Court. The accused by placing on record certain materials and also by eliciting facts from the cross-examination of PW-1, rebutted presumption U/s 139 of N.I.Act. Hence, accused is entitled to acquittal. Considering all these aspects I answer the Point No.1 in Negative.
21. Point No.2 : In view of my findings on the above point and the reasons stated therein, I proceed to pass the following :
12 C.C.No.16868/2017ORDER Acting u/Sec.255 (1) of Cr.P.C., the accused is hereby acquitted of the offence punishable u/Sec.138 of N.I. Act.
The bail bond and surety bonds of the accused stand cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by him is verified and then pronounced by me in the Open Court on this the 17th day of October, 2018) (MADHVESH DABER) XIX ADDL.C.M.M., Bengaluru.
ANNEXURE Witnesses examined on behalf of the Complainant :
PW.1 D.Keshava PW.2 Suresh
Documents marked on behalf of the Complainant :
Ex.P.1 Cheque Ex.P.1(a) Signature of the Accused, Ex.P.2 Bank endorsement, Ex.P.3 Copy of the legal notice, Ex.P.4 Postal receipt, Ex.P.5 Acknowledgment. Ex.P.6 & 7 Bank Statements, Ex.P.8 I.T.Returns.
Witnesses examined on behalf of the Accused : Nil. Documents marked on behalf of the Accused : Nil.
(MADHVESH DABER) XIX ADDL.C.M.M., Bengaluru.13 C.C.No.16868/2017