[CASE NUMBER] IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITAN MAGISTRATE, BENGALURU Present: Smt. HEMA PASTAPUR B.A., LL.B., XXII Addl. Chief Metropolitan Magistrate, Bengaluru. Dated this the 19th day of July 2018 C.C.No.10312/2017 Judgment under section 355 of [ACT] Complainant : SMT. LAKSHMAMMA, w/o [ENTITY], Aged about 62 years, Residing at No.345, 1st Stage, 6th Main, K.H.B. Colony, Basaveshwaranagar, Bengaluru - 560 079, Occupation:- House wife. (By Shri [ENTITY], Advocate) V/s Accused : SRI. ARJUN GOWDA, s/o [ENTITY], Aged about 51 years, 1 [CASE NUMBER] R/at No.12, Kamakshipalya, Magadi Main Road, Bengaluru - 560 079, Occupation:- Business. (By Shri [ENTITY], Advocate) JUDGMENT
That, the complainant has filed the private complaint under [SECTION] of [ACT], for taking action against the accused for the offence punishable under [SECTION] of the [ACT].
That, the brief facts of the present case are as under:-
1. That, the complainant had let out first floor of her house bearing No.345, which is situated at 1st Stage, 6th Main, K.H.B Colony, Basaveshwara Nagar, Bengaluru - 560 079 to one Smt. [ENTITY] and on very same day she received from the said [ENTITY] a sum of Rs.12,00,000/-. That, the accused knowing about the said fact had approached and requested the complainant for advancing him a loan and accordingly, the complainant on 06.06.2013 had advanced him a sum of [CASE NUMBER] Rs.5,00,000/- through a cheque and on 09.06.2013 had advanced him a sum of Rs.7,00,000/- in cash. That, the accused after availing the said loan amount till the December 2015 had paid the interest to the complainant on every month at the rate of 11%. That, the complainant in respect of landed property had entered into an agreement of sale with the accused. That, the accused to discharge his legally enforceable debt had issued in favour of the complainant the two cheques bearing No.221551 dated:-16.03.2016 for a sum of Rs.2,00,000/- drawn on Bank of India, Basaveshwaranagar branch, Bengaluru and No.221557 dated:-16.03.2016 for a sum of Rs.10,00,000/- drawn on Sri Raghavendra Sahakara Bank Niyamitha, Bengaluru. That, the complainant on 28.03.2016 had presented the said cheques for encashment in Bank of India, Basaveshwaranagar branch, Bengaluru and on 02.04.2016 and 04.04.2016 the said cheques were returned with the sharas as 'Funds Insufficient'. That, the complainant for the aforesaid acts of the accused on 25.04.2016 had issued the legal notice to him and the said notice was duly served upon him on 26.04.2016. That, as the accused in spite of receiving the said notice failed to comply with the terms of the [CASE NUMBER] same the complainant has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took the cognizance for the offence punishable under [SECTION] of the [ACT] and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to him. That, the accused in pursuance of said summons appeared before this court through his Learned counsel and he was enlarged on bail.
That, the substance of accusation of the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to be tried. That, after completion of the complainant side evidence the statement of the accused as contemplated under [SECTION] of [ACT], has recorded and read over him and he denied all incriminating evidence appearing against him.
3. That, I have heard the arguments. That, the complainant and accused have submitted their written arguments and I have [CASE NUMBER] gone through the same. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in her favour the two cheques bearing No.221551 dated:-16.03.2016 for a sum of Rs.2,00,000/- drawn on Bank of India, Basaveshwaranagar branch, Bengaluru and No.221557 dated:-
16.03.2016 for a sum of Rs.10,00,000/- drawn on Sri Raghavendra Sahakara Bank Niyamitha, Bengaluru?
2. Whether the complainant has further proved that, the said cheque was dishonoured as 'Funds Insufficient' in the account of the accused and thereby the accused has committed the offence punishable under [SECTION] of the [ACT]?
3. What order?
4. That, the complainant to substantiate her aforesaid contentions has deposed herself as PW1 and got marked the documents at EXs.P1 to 8. That, the complainant to strengthen her contentions has got examined one Shri [ENTITY] s/o [CASE NUMBER] [ENTITY]-the Manager of Sri Gururaghavendra Sahakara Bank Niyamitha as PW2 and closed her side.
That, the accused to substantiate his aforesaid contentions has deposed himself as DW1 and in cross-examination of the complainant has got marked the document at EX.D1 and closed his side.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the [ACT] Point No.2 :- In the [ACT] Point No.3:- As per the final order for the following:-
REASONS
6. Point No.1:- It is specific contention of the complainant that, she had let out first floor of her house bearing No.345, which is situated at 1st Stage, 6th Main, K.H.B Colony, Basaveshwara Nagar, Bengaluru - 560 079 to one Smt. [ENTITY] and on very same day she had received a sum of Rs.12,00,000/- from the said [ENTITY]. That, the complainant has further contended that the accused had approached and requested her for advancing him a loan and accordingly, on 06.06.2013 she had advanced him a sum of [CASE NUMBER] Rs.5,00,000/- through a cheque and on 09.06.2013 she had advanced him a sum of Rs.7,00,000/- in cash.
7. It is significant to note here that, the complainant in support of her contentions has placed her reliance on following decision:-
[PRECEDENT] wherein it has held that the presumption mandated by [SECTION] of the Act does indeed include the existence of legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However there can be no doubt that there is an initial presumption which favours the complainant. [SECTION] of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While [SECTION] of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption [CASE NUMBER] under [SECTION] is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by [SECTION] can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard of proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under [SECTION], the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely [CASE NUMBER] on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
8. It is to be noted here that, the accused in his examination- in-chief has specifically contended that he had not availed any loan amount from the complainant and the complainant is having no capacity to advance him a sum of Rs.12,00,000/-.
9. It is to be noted here that, the accused in support of his contentions has placed his reliance on following decision:-
[PRECEDENT] wherein it has held that [ACT] -
Dishonour of cheque - Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant-accused- Presumption in favour of holder of cheque, hence, held, stood rebutted- Acquittal restored.
[CASE NUMBER]
10. It is significant to note here that, the entire burden lies upon the complainant to substantiate that on 06.06.2013 and 09.06.2013 she was possessed with her a sum of Rs.5,00,000/- and Rs.7,00,000/- respectively. It is pertinent to note here that, the complainant in her complaint, in her examination-in-chief and Legal notice issued to the accused-EX.P5 has specifically contended that she had let out first floor of her said house to one Smt. [ENTITY]. It is significant to note here that, the complainant in her examination-in-chief, in her complaint and in EX.P5 has not mentioned when she had let out her said property to said [ENTITY]. It is significant to note here that, the complainant has also not produced before the Court any document to substantiate that she had let out her said property to said [ENTITY]. It is significant to note here that, the complainant in her cross-examination in page No.7 at 8th line has specifically deposed that she cannot say when she entered into lease agreement with the said [ENTITY]. It is pertinent to note here that, in absence of any cogent evidence the contention of the complainant that she had let out her said property to said [ENTITY] cannot be believed and accepted.
[CASE NUMBER]
11. It is significant to note here that, the complainant has further specifically contended that on very same day she had received a sum of Rs.12,00,000/- from the said [ENTITY]. It is pertinent to note here that, the complainant in contrary to her said version in her cross-examination in page No.6 at 1st line has deposed that, zj zw Eg zj 12 P g.U MAz jU Png Cg MAz wAU zj t 3 Avz Pngvg.
It is significant to note here that, the complainant in her cross-examination in page No.7 at 6th line has further deposed that, zj zwAig Aii Aii APU U zj t PngvgAz U g.
It is pertinent to note here that, the said evidence of the complainant has strike out the every root of present complaint filed by her against the accused. It is pertinent to note here that, from the said evidence of the complainant it clearly appears [CASE NUMBER] that she had not let out her property to anybody and she has falsely deposed before the Court.
It is pertinent to note here that, the complainant in her complaint, in her examination-in-chief and in EX.P5 has specifically contended that she had paid a sum of Rs.7,00,000/- in cash to the accused. It is pertinent to note here that, the complainant in contrary to her said version in her cross- examination in page No.6 at 9th line has deposed that, QU FU DgU 7 P g.U ZQ Pq vAzg EgAz zP Q v DgU 7 P g.U MAz jU Png U CU CU CjU zj t PngzV vg.
It is significant to note here that, the said evidence of the complainant is quite enough to hold that she has falsely deposed before the Court and she had not leased out any property to anybody and on 06.06.2013 and 09.06.2013 and she was not possessed with her a sum of Rs.5,00,000/- and Rs.7,00,000/- respectively and she had not advanced the said amount to the [CASE NUMBER] accused. It is pertinent to note here that, the complainant has failed to prove the existence of legally recoverable debt.
12. It is significant to note here that, the complainant has specifically contended that the accused to discharge his legally enforceable debt had issued in her favour the two cheques bearing No.221551 dated:-16.03.2016 for a sum of Rs.2,00,000/- drawn on Bank of India, Basaveshwaranagar branch, Bengaluru- EX.P1 and No.221557 dated:-16.03.2016 for a sum of Rs.10,00,000/- drawn on Sri Raghavendra Sahakara Bank Niyamitha, Bengaluru- EX.P2.
13. It is pertinent to note here that, the complainant in support of her contentions has placed her reliance on following decisions:-
1. [PRECEDENT] wherein it has held that as the signature in the cheque is admitted to be that of the accused, the presumption envisaged in [SECTION] of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears.
[CASE NUMBER] [SECTION] of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption.
2. M/s. Amolak Textiles Rep. by its Proprietor -vs- M/s. Uphar Fashions Rep. by its Proprietor, reported in [CASE NUMBER] wherein it has held that [ACT] - [SECTION] - [ACT], 1881 - [SECTION] - Offence under conviction - Appealed against - Acquittal of the accused
- Appeal by the complainant - Grievance of accused is that the cheques are issued as self-cheques. Therefore, [SECTION] of the [ACT] does not attract - Held, It is contention that the cheques are issued as self-cheques, therefore, [SECTION] of the [ACT] does not attract. The perusal of the cheques discloses that the cheques issued are self cheques, but however, the accused has signed on the obverse of the cheque and endorsed in favour of the complainant. Hence, it is to be inferred that the cheques [CASE NUMBER] have been duly endorsed and delivered to the complainant who in law is a holder is due course. The subsequent endorsement on the obverse of the cheque in favour of the complainant attracts [SECTION] of the [ACT]. - ON facts, Held, The defence theory of the accused is that the cheques were lost, the complainant unlawfully got the possession of cheques which are misused for the purpose of case is not established. The defence theory admits that the cheques belong to the account of the accused. The signature and writing in the cheque is also admitted. The accused has failed to prove that the complainant got the cheques by unlawful means. The presumption under [SECTION] of [ACT] arises in favour of the complainant. The accused has not rebutted the presumption. - In that view of the matter, the complainant has successfully established the guilt of the accused under [SECTION] of [ACT]. Therefore, the order of acquittal is bad in law and [CASE NUMBER] the same is set aside. The order of conviction recorded by the Trial Court is confirmed.
3. [PRECEDENT] wherein it has held that mere denial of issuing cheques would not be sufficient as it is time and again noted that once the cheques is issued duly signed by the petitioner, the presumption goes against him as per [SECTION] of the [ACT].
14. It is to be noted here that, the accused in his examination- in-chief has contended that M/s. FG Innovative Business Concept Pvt. Ltd., is situated at No.1237/1, 1st Floor, 23rd Cross, 30th Main Road, Banashankari 2nd Stage, Bengaluru - 560 070 and its directors have business contact with the complainant and the said directors who are familiar to his friend Shri [ENTITY] have made contact for the dealings of the said FG Innovative Business Concept Pvt. Ltd., and they have obtained the cheques belonging to him and the said [ENTITY] as a security. That, the accused has further deposed that as the dispute arose between the said FG Innovative Business Concept Pvt. Ltd., and the complainant, the complainant by misusing the aforesaid [CASE NUMBER] cheques filed the present case against him and also against said [ENTITY] as per EX.D1.
15. It is to be noted here that, the accused in support of his contentions has placed his reliance on following decision:-
[PRECEDENT] wherein it has held that when the document itself is a void one, it cannot be held that legally recoverable debt is due under that document.
16. It is pertinent to note here that, the entire burden lies upon the complainant to substantiate that the accused to discharge his legally enforceable debt had issued in her favour EXs.P1 and 2. It is to be noted here that, from perusal of EXs.P1 and 2 it clearly appears that the signatures at EXs.P1(a) and 2(a) are not tallying with each other.
It is pertinent to note here that, as stated above the accused has taken aforesaid defenses and also taken a specific defence that the signature appearing on EX.P2(a) is not his signature.
It is pertinent to note here that, the complainant in her cross-examination in page No.8 at 8th line has specifically [CASE NUMBER] admitted that, -1 v -2g Cd Uq JAz irgzg v EgvAzg j.
It is pertinent to note here that, from the said admission of the complainant itself appears that the accused had not issued the EX.P2 in her favour. It is pertinent to note here that, the complainant in her cross-examination in page No.8 has further deposed as under:-
Q Azgz, DgAi vU MAz AQ MAz U EAz AQ EAz jwAi irgzV vU gvgAz vg.
It is significant to note here that, it is not the case of the complainant that the accused by affixing his different signatures had issued in her favour EXs.P1 and 2. It is pertinent to note here that, in absence of any pleading the said evidence of the complainant cannot be accepted. It is to be noted here that, the complainant in cross-examination of the accused has tried to establish that he is in habit of putting one kind of signature in [CASE NUMBER] some documents and another kind of signature in some documents but, to substantiate her contentions has not produced any corroborative evidence.
It is significant to note here that, PW2 has appeared before this Court and furnished the Account opening application form of the accused at EX.P6, Specimen signature card of the accused at EX.P7 and Khatha extract pertaining to the accused at EX.P8. It is pertinent to note here that, PW2 in his cross-examination has specifically deposed that the signatures of the accused appearing on EXs.P6, 7 and 2 are not tallying with each other and the signatures of the accused appearing on EXs.P6, 7 and 1 are tallying with each other. It is pertinent to note here that, from entire evidence of the complainant and accused it clearly appears that the accused had not issued the cheques in question -EXs.P1 and 2 in favour of the complainant to discharge his legally enforceable debt. It is pertinent to note here that, the accused has taken a probable and acceptable defenses and proved the same by leading cogent evidence. It is to be noted here that, in view of My above findings and without much discussion I hold that, the complainant has failed to prove that the accused to [CASE NUMBER] discharge his legally enforceable debt had issued in her favour EXs.P1 and 2. In view of the same, point No.1 is answered in the [ACT].
17. Point No.2:- That, the complainant has contended that she presented the EXs.P1 and 2 for encashment in Bank of India, Basaveshwaranagar branch, Bengaluru and on 02.04.2016 and 04.04.2016 the same were returned with the sharas as 'Funds Insufficient'.
It is pertinent to note here that, the complainant to substantiate her contentions in her evidence has got marked the Cheque return memo's issued by the said bank at EXs.P3 and 4.
It is to be noted here that, as discussed on point No.1, the complainant has failed to prove that the accused to discharge his legally enforceable debt had issued in her favour EXs.P1 and 2 and if such being the case, the question of committing the offence by the accused under [SECTION] of the [ACT], do not arise at all. It is pertinent to note here that, in view of My above findings and without much discussion I hold that, the complainant has failed to prove that the accused has committed the offence punishable under [SECTION] of the [CASE NUMBER] [ACT]. In view of the same, point no.2 is answered in the [ACT].
18. Point No.3:-That, as discussed on points No.1 and 2, I proceed to pass the following:-
ORDER That, acting under [SECTION] of [ACT], the accused is acquitted for the offence punishable under [SECTION] of the [ACT].
That, the accused shall comply with provisions of [SECTION] of [ACT].
(Dictated to Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 19th day of July 2018) ([ENTITY]) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Smt. [ENTITY] w/o [ENTITY] and PW.2 : Shri [ENTITY] s/o [ENTITY]. [CASE NUMBER]
List of exhibits marked on behalf of complainant:-
Exs.P1 and 2 : Original cheques; Exs.P1(a) and 2 : Signatures of the accused; Exs.P3 and 4 : Cheque return memo's; Ex.P5 : Legal notice dated:-25.04.2016; Ex.P5(a) : Postal acknowledgement; Ex.P6 : Account opening application form; Ex.P7 : Specimen signature card and Ex.P8 : Account extract of the accused.
List of witnesses examined on behalf of the accused:-
DW.1 : Shri [ENTITY] s/o [ENTITY].
List of exhibits marked on behalf of the accused:-
Ex.D1 : Certified copy of complaint in [CASE NUMBER].
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.