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2020 DIGILAW 1875 (KAR)

Deepak K S, Bangalore v. B. Yogesh

2020-09-29

H.B.PRABHAKARA SASTRY

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JUDGMENT H.B.Prabhakara Sastry, J. - This appeal is filed by the appellant/complainant praying to set aside the Judgment dated 08.10.2010 passed in C.C. No.25938/2006 by the XVIII Addl. Chief Metropolitan Magistrate and XX Addl. Small Causes Judge, Bengaluru City (for brevity, hereinafter referred to as the Trial Court ) acquitting the accused from the offence punishable under Section 138 of the Negotiable Instruments Act, 1881(for brevity, hereinafter referred to as the N.I. Act ) and to convict the respondent in accordance with law. 2. The summary of the case of the complainant in the Trial Court is that himself and the accused are business friends and taking advantage of the said acquaintance between them, in January, 2005, the accused who was in deep financial commitments, availed a loan of `10,00,000/- from the complainant. Towards the repayment of the said loan amount, the accused issued two cheques bearing Nos. 015487 and 016804 both dated 07.10.2005 and each being for `5,00,000/- and drawn on Janatha Seva Cooperative Bank Limited, Mahalakshmipuram Branch, Bangalore, to the complainant. When the complainant presented those two cheques for realisation through his banker, the same came to be returned unpaid with the banker's shara insufficiency of funds with the account holder . Thereafter the complainant got issued a legal notice to the accused on 07.11.2005 through Registered Post Acknowledgement Due and under Certificate of Posting . Even after service of the said notice, the complainant failed to meet the demand made in the legal notice by paying the cheque amount which constrained the complainant to institute a case against the accused in the Trial Court for the offence punishable under Section 138 of the N.I. Act. 3. Trial Court records were called for and the same are placed before the Court. 4. Even though the appellant / complainant was being represented by his counsel, but in view of the fact that the said counsel did not appear and address his arguments though sufficient opportunity was given, this Court, by its detailed Order on 15.09.2020, appointed an amicus curiae for the appellant / complainant. Learned amicus curiae is present through video conference. 5. Learned counsel for the respondent is present physically in the Court. 6. Heard the arguments from both side. Perused the materials placed before this Court. 7. Learned amicus curiae is present through video conference. 5. Learned counsel for the respondent is present physically in the Court. 6. Heard the arguments from both side. Perused the materials placed before this Court. 7. Learned amicus curiae for the appellant in his arguments submitted that issuance of cheques, its dishonour and the issuance of the statutory notice by the complainant are not in dispute. The presumption that has been formed in favour of the complainant also has not been rebutted. However, the Trial Court went beyond the contention of the accused, and on its own assumed that the complainant had no financial capacity to lend the loan and he had not shown the said loan transaction in his income tax returns, as such, it proceeded to acquit the accused which is erroneous. 8. Per contra, learned counsel for the respondent, in his arguments submitted that the accused has specifically taken a contention about the alleged financial incapacity of the complainant to lend the amount. He also submitted that the very evidence of the complainant as PW-1 goes to show that the alleged transaction is a fictitious one. He further stated that even according to the complainant, the cheques at Exs.P1 and P2 are issued by a partnership firm, but neither the firm nor all the partners of the alleged firm have been arraigned in the complaint, as such, the very complaint was not maintainable. He further stated that the complainant has not shown any reasons for his alleged lending of not less than a sum of `10,00,000/- in cash to the accused and that he has also not proved that there was service of notice. Thus, considering these aspects, the Trial Court has rightly acquitted the accused of the alleged offence. 9. The points that arise for my consideration are: (i) Whether the complainant has proved beyond reasonable doubt that the accused has committed the alleged offence punishable under Section 138 of the N.I. Act? (ii) Whether the Judgment of the Trial Court impugned under this appeal warrants any interference at the hands of this Court? 10. The complainant got himself examined as PW-1 who in his examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by him in his complaint. (ii) Whether the Judgment of the Trial Court impugned under this appeal warrants any interference at the hands of this Court? 10. The complainant got himself examined as PW-1 who in his examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by him in his complaint. Apart from stating that the loan was given to the accused in January, 2005 in cash and the cheques in question were issued by the accused towards the repayment of the said loan, the witness has got produced the two dishonoured cheques at Exs.P1 and P2 and the banker's endorsement at Exs.P3, P4 and P12. He also produced an office copy of the legal notice said to have been sent to the accused at Ex.P5, its postal receipt, certificate of posting and postal acknowledgement at Exs.P6, P7 and P8 respectively. The witness was subjected to a detailed cross examination, wherein several statements were elicited from him about his financial capacity to lend the huge sum of amount as loan and also it was suggested to the witness that there was no such loan transaction as alleged by him. 11. The accused was examined as DW-1 who in his examination-in-chief in the form of affidavit evidence, though has not denied that the complainant was known to him but specifically denied the alleged loan transaction between him and the complainant. He also denied the issuance of cheques at Exs.P1 and P2 to the complainant towards the alleged repayment of the loan. However, regarding the complainant coming in possession of the cheques belonging to him (accused), the witness stated that he had issued those two cheques to one Sri Anil during the year 2001 and 2003 while obtaining a handloan of `35,000/- and `25,000/- respectively. Though the said loan amounts were cleared, but Sri Anil did not return those cheques to him but somehow the complainant has obtained those two cheques from Sri Anil and filling up the contents therein has filed a false case. The said defence taken up by the accused has been specifically denied in the cross examination of the very same witness from the complainant s side. No documents were marked as exhibits from the accused side. 12. The above evidence of the parties shows an admitted fact that the complainant and the accused were not unknown to each other. The said defence taken up by the accused has been specifically denied in the cross examination of the very same witness from the complainant s side. No documents were marked as exhibits from the accused side. 12. The above evidence of the parties shows an admitted fact that the complainant and the accused were not unknown to each other. However, the point of dispute is about the alleged loan transaction between the complainant and the accused and the alleged issuance of cheques towards a legally enforceable debt by the accused to the complainant. 13. According to the complainant, the loan was given to the accused in January, 2005 in the form of cash. The accused, apart from denying the said loan has seriously disputed the capacity of the complainant to lend such a huge amount to him that too in the form of cash. It is in that regard PW-1 was subjected to a detailed cross examination from the accused side, wherein, several statements were brought out from the mouth of the witness. PW-1 in his cross examination has stated that he acts as a recovery agent for HDFC Bank and ICICI Bank. From the said avocation he earns a sum of Rupees Eight to Ten Lakhs per annum. Further he incurs an expenditure of about Rupees Six to Seven Lakhs per annum. 14. If the said submission of the witness is taken on its face value, after deducting his annual expenditure from his avocation income, his net income per annum would only be about One to Two Lakh Rupees. This rises a question as to whether a person with an annual total income of Rupees One to Two Lakhs after deducting his personal expenses or the family requirements if any, could be able to save Rupees Ten Lakhs and lend it to a person, though he is a friend, without any documentation in that regard. Interestingly, the very same witness has further stated in his cross examination that prior to present transaction in question, he has made financial transactions with the accused about ten times. This further leads to a doubt as to what made him to make several financial transactions with the accused and what for. Interestingly, the very same witness has further stated in his cross examination that prior to present transaction in question, he has made financial transactions with the accused about ten times. This further leads to a doubt as to what made him to make several financial transactions with the accused and what for. Had really financial transactions were going on between them, then the complainant should have necessarily had in his possession, some documents with respect to the regular financial transactions alleged to have been made with the accused and he should have produced the same to substantiate his contention that the present alleged transaction was also one such alleged transaction made with the accused, as such, it was not a unique or an uncommon financial transaction with the accused. No statement in that regard has been made by the complainant. 15. On the other hand, the evidence of DW-1 would clearly go to show that he has specifically denied the alleged loan transaction with the complainant. That apart, in the very cross examination of the complainant (PW-1), apart from specifically denying the alleged loan transaction, the accused could able to elicit several doubts in the case of the complainant with respect to his alleged capacity to lend money that too with the huge sum of not less than Rupees Ten lakhs. 16. In addition to the above, PW-1 in his cross examination, while giving further details has stated that towards the loan transaction the accused issued cheques at Exs.P1 and P2 and has specifically stated that the accused went to him (PW-1) and in the presence of PW-1 took out two cheque leaves from his cheque book and signed them and issued to him. The very same witness in his subsequent statements made in the very same cross examination has admitted a suggestion as true that in the serial Numbers of cheques there is a difference of 1317 in those two cheques which are at Exs.P1 and P2. Had really according to the version of the complainant, if the accused had taken out his cheque book from his possession and issued two cheque leaves from the said cheque book, the difference in the serial numbers of cheque leaves under no stretch of imagination can come to such a difference of 1317. The serial number of the cheque at Ex.P1 is 015487 and that of Ex.P2 is 016804. The serial number of the cheque at Ex.P1 is 015487 and that of Ex.P2 is 016804. Even if it is taken that the cheque book was containing 100 leaves and the accused had issued the first and the last cheque leaves in it, the difference can at the maximum be only 99, but it cannot go to an extent of 1317. This also leads to a suspicion to believe the version of the complainant that the accused had availed loan from him and towards the repayment of the said sum had issued the cheques in the presence of the complainant, marked as per Exs.P1 and P2. 17. The contention of the learned counsel for the respondent is that even according to the complainant, the cheques at Exs.P1 and P2 are of partnership firm. But the complainant has not made parties either the firm or its partners and as such, the very complaint is not maintainable. The said doubt submitted to the Court by the accused was not addressed by the complainant s side in his arguments. A perusal of the cheques at Exs.P1 and P2 would go to show that the drawer in both the cheques is one M/s. Veerabhadreshwara Theatre and both the cheques are executed by its partner. The accused in cross examination no doubt has stated that he is doing theatre business and has got sufficient income from his theatre, choultry and the factory shed to an extent of `6,00,000/- per month, but nowhere has stated that he was one among the partners in the said M/s. Veerabhadreshwara Theatre which is the drawer of the instruments at Exs.P1 and P2. Even the cause-title in the complaint which is marked at Ex.P9 would go to show that the accused is an individual by name B. Yogesh (DW-1). But nowhere it is mentioned that he is a partner of the drawer firm i.e. M/s. Veerabhadreshware Theatre. Admittedly the firm is also not arraigned as an accused in the case, as such, when the cheque is issued by a firm, without making either the firm or its partners as accused, but making an individual as accused would not sustain the stand of the complainant. 18. Admittedly the firm is also not arraigned as an accused in the case, as such, when the cheque is issued by a firm, without making either the firm or its partners as accused, but making an individual as accused would not sustain the stand of the complainant. 18. Thus, weaknesses in the case of the complainant and the stand taken by the accused and its proof by him through cogent evidence has resulted in rebutting the presumption which has accrued in favour of the complainant under Section 139 of the N.I. Act. Once the presumption has stood rebutted, it was for the complainant to prove the alleged loan transaction between him and the accused which he has failed to do. Since it is considering these aspects the Trial Court has rightly acquitted the accused of the alleged offence, I do not find any reason to interfere in it. Accordingly, I proceed to pass the following: ORDER Appeal dismissed. The Judgment passed in C.C. No.25938/2006 by the XVIII Addl. Chief Metropolitan Magistrate and XX Addl. Small Causes Judge, Bengaluru City, dated 08.10.2010, acquitting the accused of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 stands confirmed. The Court while acknowledging the service rendered by the learned Amicus Curiae for the appellant Sri P.D. Subramanya, recommends honorarium of not less than `3,000/- to him payable by the Registry. Registry to transmit a copy of this Judgment along with Trial Court records to the Trial Court, forthwith.