Bangalore District Court
Sri.M.Narasimha Reddy vs Mr.G.N.Ramesh Reddy on 24 November, 2020
THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY.
Dated this the 24th day of November, 2020.
PRESENT: SRI MADHVESH DABER, B.COM.,L.L.B(SPL).,
XIX ADDL.C.M.M., BENGALURU.
Case No: C.C.No.16757/2017
Complainant: Sri.M.NARASIMHA REDDY
S/o. Sri.M.Lakshmi Reddy,
Aged about 36 years,
R/at House No.S-33, Kryastal Tiara
Ambalipura, Bellandur Main Road,
Bengaluru-560103.
(By Law Park Associates.,
Advocates)
V/S
Accused: Mr.G.N.RAMESH REDDY
S/o G.M.Nanjunda Reddy,
Aged about 52 years,
R/at 87, Water Tank Road,
Via Varthur, Gunjur,
Bengaluru-560087.
And Also at
Mr.G.N.RAMESH REDDY
S/o G.M.Nanjunda Reddy,
Aged about 52 years,
Flat No.208, 3rd Floor,
"ASHA HILL CREST
APARTMENT"
Outer Rind road, Bellandur,
Bengaluru-560103.
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C.C.No.16757/2017
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty.
Opinion of the Judge Accused found not guilty.
Date of order: 24th November, 2020.
JUDGEMENT
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. The brief facts of the complaint are that;
The complainant contends that, he and accused being good friends, taking advantage of the said friendship, the accused approached the complainant for a hand loan of Rs.8,00,000/- (Rupees Eight Lakhs Only) in November 2016, by promising the said amount will be returned within a span of two to three months. But the accused did not turn up to repay the above said amount of Rs.8,00,000/- (Rupees Eight Lakhs Only), from the date of borrowal of the money to till this date. The accused did not keep up its words and promise in retuning the said amount of 3 C.C.No.16757/2017 Rs.8,00,000/- to the complainant. However on several requests the accused issued two cheques bearing No.904231 for Rs.4,90,000/- (Four Lakh Ninety Thousand Only) and No.904232 for Rs.3,10,000/-(Three Lakh Ten Thousand Only) totaling to an amount of Rs.8,00,000/-(Eight Lakhs Only) drawn on Vijaya Bank, HSR Layout Branch, Bengaluru. But on presentation the said cheques were dishonored for the reason "FUNDS INSUFFICIENT". Thereafter, the complainant got issued a Legal Notice to the accused on 09.05.2017 calling upon the accused to pay the chque amount. Despite service of notice, the accused did not pay the cheque amount and thereby committed offence under Section 138 of Negotiable Instruments Act. Hence, this complaint.
3. 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 4 C.C.No.16757/2017 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 has been examined as PW-1 and documents Ex.P-1 to Ex.P-11 were got exhibited and closed his side.
5. After closure of the complainant side evidence, accused Statement u/Sec.313 of Cr.P.C. was recorded. The accused denied the incriminating evidence in toto. The accused has been examined as DW-1 and No documents were got exhibited.
6. Heard Arguments.
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 Two cheques for total amount of Rs.8,00,000/-(Rupees Eight Lakhs Only) which on presentation came to be 5 C.C.No.16757/2017 dishonoured and he has failed 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:
:: R E A S O N S ::
9. Point No.1:- In order to prove his case, the Complainant viz., Sri.M.NARASIMHA REDDY 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 documents Ex.P-1 to Ex.P-11 were got exhibited and closed his side. The accused has been examined as DW-1 and no documents were got exhibited.
10. During arguments the learned Counsel for Complainant argued that, the accused having friendship with the 6 C.C.No.16757/2017 complainant obtained hand loan of Rs.8,00,000/- from the complainant in November 2016 and for repayment of the said amount issued two cheques for total amount of Rs.8,00,000/- which on presentation came to be dishonored for the reason "FUNDS INSUFFICIENT ". Thereafter, even though the accused has received the notice issued to him, he has failed to repay the cheque amount. The accused has not raised any probable defence and rebutted presumption under Section 138 of N.I. Act. The evidence of accused is full of infirmities and merely on the basis of surmises the case of the accused cannot be believed. He has not put up an acceptable evidence. His evidence that the cheques were given to Babu Reddy as a security which were misused by accused is not supported by any acceptable evidence. Hence, same cannot be believed. Moreover the stand of the accused is not supported by documentary evidence. His cross examination discloses that the complainant paid Rs.8,00,000/- to the accused and accused failed to repay the said amount. Hence, the learned counsel for complainant prayed to convict the accused.
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11. On other hand the learned counsel for accused drawn my attention to the evidence of complainant and argued that the evidence of complainant is full of infirmities which does not inspire confidence in his case. The alleged transaction has taken place in November 2016. At that time there was demonetization of currency notes. So the contention of complainant that he paid an amount of Rs.8,00,000/- in Rs.500/- old currency notes cannot be accepted. He has not produced any IT returns and not disclosed source of income. Even he does not know where the accused is residing and he does know about the details of his family members. Under such circumstances when the demonetization of currency notes had taken place in November 2016, his contention that he had Rs.8,00,000/- in the form of old currency notes of Rs.500/- cannot be accepted. So it probablises the case of the accused that the chques were given to Babu Reddy and they were misused by complainant. In order to prove his case accused has led his evidence which cannot be discarded. Hence, the learned counsel for accused prayed to acquit him.
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12. 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?
13. It is to be noticed that as per complaint averments and evidence of complainant the alleged transaction had taken place in November 2016. The complainant could not say as to on 9 C.C.No.16757/2017 which date he paid Rs.8,00,000/- to the accused. However it is his contention that he might have paid the amount in between November 20th and November 30th. According to him he paid the amount in cash in the house of one Babu Reddy, in the presence of Babu Reddy and his wife at about 2.30 pm. According to him he paid the amount in the currency notes of Rs.500/-. It is pertinent to note that he himself admitted that on November 8 th 2016 the demonetization of currency notes had taken place. If the demonetization of currency notes had taken place on November 8th 2016, according to the rules he had to submit all the old currency notes and deposit them into the bank account. So the contention of complainant that he had Rs.8,00,000/- in Rs.500/- old currency notes even in the last week of November 2016 seems to be unacceptable one and unbelievable. Since after 08.11.2016 the old currency notes had no recognition, the contention of the complainant that he paid the amount in the form of old currency notes seems to be unbelievable. Moreover, admittedly there is no document to show that he had paid Rs,8,00,000/- to the accused in 10 C.C.No.16757/2017 the last week of November 2016. Moreover, the date of advancement is also not specifically stated.
14. It is to be noticed that the complainant contends that he had received the money of Rs.8,00,000/- by selling a rice mill in his native place. He has also stated that he had agricultural income also. The purchaser of the rice mill had paid the amount part by part in 2015 and 2016 to his parents. But in this regard there is no document to show that as on the date of alleged transaction he had Rs.8,00,000/- with him to be paid to accused.
15. During arguments it is contended that the complainant was having a software company and getting the annual income of Rs.20,00,000/-. Non production of documents in this regard is fatal to the case of complainant. However the non production of document relating to software company and payment of income tax is immaterial in this case, since it is not alleged in the complaint or notice that he paid the amount out of the money received from his software company. Under such 11 C.C.No.16757/2017 circumstances the above contention that the complainant has not produced documents to show that he was getting Rs.20,00,000/- per annum personally from the software company is not helpful to the accused.
16. However, it is material to note that if at all the accused was known to the complainant for five years prior to recording his evidence, the complainant ought to have stated the details of residential address of accused and his family members. But the complainant pleaded ignorance regarding the details of residential address of accused and his family members. So all these circumstances go to show that the complainant has not come up with true facts before the court. It seems that the stand taken by the accused that the cheques given to Babu Reddy were misused by the complainant seems to probable.
17. Another aspect the case is that the alleged amount given to the accused was Rs.8,00,000/-. Ex.P.1 and Ex.P.2 are two cheques bearing same date. The said two cheques are having 12 C.C.No.16757/2017 consecutive numbers. If at all the alleged cheques were given on the same day on 28.03.2017, there was no need for issuance of two different cheques. It was sufficient if only one cheque had been issued. But in this regard upon questioning, the complainant has not given proper answer. Moreover, the complainant has given two divergent answers with regard to the time stipulated for repayment of the amount borrowed by the accused. So in my opinion since two different cheques were allegedly issued for the repayment of the amount of Rs.8,00,000/- that to on the same day, it creates doubt in the case of the complainant.
18. Moreover, the complainant admits that the accused has not put his signature over the cheques in his presence. He is also not sure whether the cheques bear the signature of accused. Moreover he admits that the amount was already mentioned when cheques were issued. He said that the name and dates were entered by him. It is to be noticed that it is not the contention of the complainant that the name column and date column in the cheques were blank and he had filled them up as per instruction of 13 C.C.No.16757/2017 the accused. Moreover he himself admits that, the accused had not issued the cheques by putting signature in his presence. So these circumstances make the case of the accused probable that the blank signed cheques given to Babu Reddy were misused by Babu Reddy and complainant. That apart on perusal of complaint averments and affidavit in lieu of evidence it appears that it is not clear as to whether the accused had received money from the complainant in November 2016. Even the purpose for which the amount was received is also not stated. In the cross examination the complainant has clearly stated that it is not mentioned in the complaint and affidavit that he had paid the amount of Rs,8,00,000/- to accused. He has also given contradictory evidence with regard to the time stipulated for repayment of the money. So looking to the entire evidence given by complainant it appears that the evidence of complainant is full of infirmities and does not inspire confidence in his case.
19. Added to this the accused has entered into the witness box and given evidence that he had sought for loan of 14 C.C.No.16757/2017 Rs.50,000/- from one Babu Reddy. But Babu Reddy had not given him the said amount. However, the accused had given three cheques to Babu Reddy as security. But Babu Reddy had not returned those cheques. According to the accused he has not at all received legal notice from the complainant. But after receiving summons from the court he went to Varthur Police Station to lodge a complaint against complainant for misuse of cheque. But Police have not taken any action in the matter. According to the accused he was not known to complainant and he did not known as to how his cheques went into the hands of complainant. Looking to the circumstances of the case and for the facts discussed above, the evidence of accused seems to be probable. It is true that there are certain infirmities in the evidence of the accused. It is true that the evidence of accused is not supported by documentary evidence. Further the accused has not led the evidence of Babu Reddy. But in the circumstances of the case expecting Babu Reddy to give evidence in favour of accused will be futile. Even non filing of complaint against complainant in the Police Station also not fatal to the case of accused. The suggestion 15 C.C.No.16757/2017 made to the accused in the cross examination that he, complainant and Babu Reddy sat in the house of Babu Reddy to discuss about monetary transaction , probablises the case of the accused that he had handedove the cheques to Babu Reddy and same were misused. Moreover a suggestion was made to accused that an amount of Rs,8,00,000/- was borrowed by accused from the complainant and he had given three cheques to complainant for the amount borrowed from him. But it is to be noticed that it is not at all the case of the complainant that accused had issued three cheques to the complainant. So all these circumstances go to show that the version of complainant is unacceptable and unbelievable. There is nothing on record to show that the amount of Rs.8,00,000/- was paid to accused in the form of cash in last week of November 2016 that to when the demonetization of currency notes was prevailing. So I am of the opinion that looking from any angle the version of complainant is unbelievable. Whereas , the accused by eliciting facts from the cross examination of complainant, rebutted presumption under Section 138 of N.I.Act.
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20. The accused has taken a contention that the legal notice issued to him as per Ex.P.7 was not served upon him. However on perusal of the Postal Acknowledgment Ex.P.10 and Ex.P.11 it appears that the legal notice was issued to the correct address of the accused to his two different addresses which are mentioned in the complaint also. As per Ex.P.10 and Ex.P11 the notice was duly served upon the accused to his two addresses. It is pertinent to note that it is not the case of the accused that he was not at all residing in the address shown in Ex.P.7 at the relevant point of time. In this regard no specific question was put to the complainant in the cross examination. Admittedly, the legal notice issued to the accused was not returned for the reason that the address was incorrect. So a presumption has to be drawn under Section 27 of General Clauses Act that the notice has been sent to the correct address to the accused which was duly served upon him. So the contention of the accused that notice was not served upon him is not acceptable one.
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21. Hence, considering all these aspects, I am of the opinion that the complainant has failed to prove before the court that he had paid an amount of Rs.8,00,000/- to accused and for repayment of the said amount the accused issued cheques Ex.P.1 and Ex.P.2 which on presentation came to be dishonored for the reason stated in the endorsement. The accused by eliciting the facts from the cross examination of the complainant and by leading defence evidence, rebutted presumption under Section 138 of N.I.Act. Hence accused is entitled for acquittal. Accordingly, I answer point No.1 in the Negative. . 22. Point No.2:- In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER 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.18
C.C.No.16757/2017 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 24 th day of November, 2020) (MADHVESH DABER) XIX ADDL.C.M.M., Bengaluru. ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 M.NARASIMHA REDDY.
Witnesses examined on behalf of the Accused:
DW.1 G.N.RAMESH REDDY.
Documents marked on behalf of the Complainant:
Ex.P.1 and Ex.P.2 Cheques. Ex.P.1(a) to Ex.P.2(a) Signatures of the Accused. Ex.P.3 to Ex.P.6 Bank Endorsements. Ex.P.7 Office copy of the legal notice. Ex.P.8 and Ex.P.9 Postal receipts. Ex.P.10 & Ex.P.11 Postal Acknowledgments.
Documents marked on behalf of the Accused:-Nil-
XIX ADDL.C.M.M., Bengaluru. 19 C.C.No.16757/2017 20 C.C.No.16757/2017