Bangalore District Court
Naga Sankeerth Segu Amaranath vs C L Jhonson on 24 December, 2024
KABC0C0201782021
IN THE COURT OF XIV ADDL.CHIEF JUDICIAL
MAGISTRATE, MAYOHALL UNIT, BENGALURU.
Dated this the 24th day of December, 2024.
Present : Sri.SANTHOSH S.KUNDER, B.A.,LLM,
XIV Addl. C.J.M., Bengaluru.
JUDGMENT UNDER SECTION 355 of Cr.P.C
C.C.No.56225/2021
Complainant Sri.Naga Sankeerth Segu Amarnath,
S/o S.R.Amaranath,
Aged about 32 years,
Residing at Villa 44 Sobha City,
Thanisandra Main Road, Hegde Nagar,
Dr.Shivarama Karanth Nagar,
Bengaluru North-560 077.
(By Sri.R.B.Mruthyunjaya, Advocate)
V/s
Accused Mr.C.L.Johnson,
S/o late.C.P.Louies,
Aged about 51 years,
R/at Melekeri Village,
Madikeri Taluk,
Kodagu District.
(By Sri.H.M.Ravishankar, Advocate)
Offence U/s 138 of Negotiable Instruments Act.
Plea of the Pleaded not guilty
accused
Final Order Acquitted
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KABC0C0201782021 C.C.No.56225/2021
This complaint is filed under Section 200 of Cr.P.C
for the offence punishable under Section 138 of the
Negotiable Instruments Act.
2. Complaint averments in brief:
The complainant and accused are good friends.
Considering the close friendship, on the request made by
the accused, the complainant paid a sum of ₹73,00,000/-
to the accused. The accused in turn issued cheque bearing
No.004437 dated 22.04.2021 for ₹73,00,000/-, drawn on
Axis Bank, Madikerei branch, Madikeri. The complainant
presented the cheque for encashment through ICICI Bank,
M.G.Road branch. But, it was returned unpaid with
endorsement 'account closed', vide bank memo dated
20.07.2021. This fact was brought to the notice of the
accused. Since, the accused failed to pay the cheque
amount, the complainant has issued a legal notice dated
19.08.2021 to the accused through RPAD demanding
payment of dishonoured cheque amount. The notice was
duly served on him. Instead of complying with the demand
made in the notice, he has issued untenable reply dated
17.09.2021. Therefore, this complaint is filed.
3. This court took cognizance of offence punishable
under Section 138 of N.I.Act. Sworn statement of the
complainant recorded by way of affidavit. As prima facie
case was made out, accused was summoned.
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KABC0C0201782021 C.C.No.56225/2021
4. In response to the summons, accused has
appeared and released on bail. After compliance of Sec.207
of Cr.P.C, this court recorded his plea. He has pleaded not
guilty and claimed to be tried.
5. Sworn statement of the complainant has been
treated his evidence and he was examined as P.W.1 and
marked documents at Ex.P.1 to 6.
6. Accused was examined under under Section
313 of Cr.P.C. He has denied the incriminating evidence.
7. By way of defense, the accused has examined
himself as DW-1 and got marked Ex.D-1.
8. Advocate for the complainant filed written
argument whereas, advocate for accused addressed oral
argument.
9. Points for consideration are :
1. Whether the complainant has proved
that accused had drawn cheque bearing
004437 dated 22.04.2021 for a sum of
₹73,00,000/-, on Axis Bank, Madikerei
branch, Madikeri, towards legally
recoverable debt and the said cheque was
dishonoured for the reason 'account
closed' and in spite of service of statutory
demand notice dated 19.08.2021, accused
has failed to pay the amount covered
under the cheque and thereby he has
committed the offence punishable U/s 138
of N.I.Act?
2. What order?
10. Answer is:-
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KABC0C0201782021 C.C.No.56225/2021
Point No.1 : In the Negative.
Point No.2 : As per final order for the following :
REASONS
11. Point No.1: In order to prove the case, the complainant
examined himself as PW-1 by filing affidavit where he has
reiterated the complaint averments. He has got marked as
many as six documents. Ex.P-1 is cheque; Ex.P-2 is bank
endorsement; Ex.P-3 is the copy of legal notice dated
19.08.2021; Ex.P-4 is postal receipt; Ex.P-5 is postal
acknowledgment card and Ex.P.6 is reply notice.
12. Before proceeding to discuss the evidence, it is
necessary to go through Para No.4 of the complaint which
reads as under:-
"The Complainant submits that the accused
is the close friend of the complainant and
having regard to the close friendship
between the accused and the complainant
and on the request of the accused, the
complainant has paid a sum of
Rs.73,00,000/- (Rupees Seventy Three
Lakhs Only) and in turn the accused had
issued the cheuqe bearing No.004437, dated
22.04.2021 for Rs.73,00,000/-, drawn on
Axis Bank, Madikerei branch, Madikeri-
571201"
13. Thus, in the complaint, there is lack of averments
as to when the complainant has advanced huge sum of
₹73,00,000/- to the accused.
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KABC0C0201782021 C.C.No.56225/2021
14. Learned counsel for the accused cross-examined
PW-1. During cross-examination, PW-1 has stated that he
was introduced to the accused by one Shivareddy,
Advocate during 2018-19. Thereafter, he was continuously
meeting the accused in Madikeri and advocate's office.
However, since 2018, he has not telephoned the accused
although he had his mobile number. The complainant is
asserting that he has advanced a sum of ₹73,00,000/- to
the accused. But, the date of alleged lending of money has
not been pleaded in the complaint.
15. PW-1 has further asserted in his cross-
examination that he has paid ₹73,00,000/- to the accused
in cash in the office of Shivareddy, Advocate. When
questioned as to when did the accused ask the
complainant for money, PW-1 has stated that accused
asked money during October 2020 for the purpose of
purchase of property. PW-1 has further stated that, he has
paid ₹73,00,000/- to the accused 1½ months after October
2020. PW-1 has asserted that he had withdrawn money
from the bank for some other purpose and borrowed
₹40,00,000/- from his friends and paid ₹73,00,000/- to
the accused. Though, PW-1 has stated that he would
produce his bank statement to substantiate that he has
withdrawn money from his bank account, he has not
produced his bank statement. When he was asked to name
his friends from whom he borrowed ₹40,00,000/-, PW-1
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KABC0C0201782021 C.C.No.56225/2021
stated that Manikantan Sadashivanagara, Abhishaik
Reddy, Hydrabad and Vijaykumar, Jayanagara, Bengaluru
are the persons from whom he has taken ₹40,00,000/- by
cash. Relevant portion of cross-examination of PW-1 is
extracted as under:-
"xxxxx ಆರೋಪಿಯ ಹೆಸರು ಸಿ.ಎಲ್.ಜಾನ್ಸನ್ 2018-
19 ನೇ ಇಸವಿಯಿಂದ ಅವರು ನನಗೆ ಪರಿಚಯ ಆಗಿದ್ದಾರೆ.
ನಾನು ಆರೋಪಿಯನ್ನು ಹಲವಾರು ಬಾರಿ ಬೇಟಿಯಾಗಿದ್ದೇನೆ.
ಮಡಿಕೇರಿಯಲ್ಲಿ ಮತ್ತು ನನ್ನ ವಕೀಲರ ಕಛೇರಿಯಲ್ಲಿ
ಆರೋಪಿಯನ್ನು ಬೇಟಿಯಾಗುತ್ತಿದ್ದೆ. ಮಡಿಕೇರಿಯ
ಜಿ.ಟಿ.ರಸ್ತೆಯಲ್ಲಿ ಡ್ರೆೃಪ್ರೂಟ್ಸ ಮತ್ತು ಸ್ಪೆೃಸಸ್ ಮಾರುವ
ಅಂಗಡಿಯ ಬಳಿ ಅವರನ್ನು ಬೇಟಿಯಾಗಿದ್ದೇನೆ. ಆರೋಪಿ
ಒಬ್ಬರನ್ನೇ ಬೇಟಿಯಾಗಿದ್ದೀರಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಹೌದು, ಅಲ್ಲಿ
ಬೇರೆ ಯಾರೂ ಇರಲಿಲ್ಲಾ ಎನ್ನುತ್ತಾರೆ. ಮಡಿಕೇರಿಯಲ್ಲಿ
ಆರೋಪಿಯನ್ನು ಸುಮಾರು 3-4 ಬಾರಿ
ಬೇಟಿಯಾಗಿರಬಹುದು. ಆರೋಪಿಯ ಮೊಬೈಲ್ ಸಂಖ್ಯೆ ನನ್ನ
ಮೊಬೈಲ್ ನಲ್ಲಿ ಇದೆ. ಮೊಬೈಲ್ ತೆಗೆದು ಆರೋಪಿಯ
ಮೊಬೈಲ್ ಸಂಖ್ಯೆಯನ್ನು ಹೇಳುತ್ತೀರಾ ಎಂದರೆ ಸಾಕ್ಷಿ ತನ್ನ
ಮೊಬೈಲನ್ನು ತೆಗೆದು ಸಂಖ್ಯೆಯನ್ನು 9449124861
ಎಂದು ಹೇಳುತ್ತಾರೆ. ನನ್ನ ಮೊಬೈಲ್ ಸಂಖ್ಯೆ
8892006318 ಇರುತ್ತದೆ. ನಿಮ್ಮ ಮೊಬೈಲ್ ನಂಬರ್
ನಿಂದ ಆರೋಪಿ ಮೊಬೈಲ್ ಗೆ ಕರೆ ಮಾಡಿದ್ದೀರಾ ಎಂದರೆ
ಸಾಕ್ಷಿ ಇಲ್ಲ ಎನ್ನುತ್ತಾರೆ. 2018 ನೇ ಇಸವಿಯಿಂದ
ಇಲ್ಲಿಯವರೆಗೂ ಒಮ್ಮೆ ಕೂಡಾ ಕರೆ ಮಾಡಿಲ್ಲವಾ ಎಂದರೆ
ಸಾಕ್ಷಿ ಇಲ್ಲ ಎನ್ನುತ್ತಾರೆ. ಆರೋಪಿ ಮೊಬೈಲ್ ಸಂಖ್ಯೆಯನ್ನು
ನಿಮಗೆ ಯಾರು ಕೊಟ್ಟರು ಎಂದರೆ ಸಾಕ್ಷಿ ನಮ್ಮ ವಕೀಲರು
ಕೊಟ್ಟರು ಎನ್ನುತ್ತಾರೆ. ರೂ. 73 ಲಕ್ಷ ಹಣವನ್ನು ಯಾವ
ಮುಖಾಂತರ ನೀವು ಕೊಟ್ಟಿದ್ದೀರಿ ಎಂದರೆ ಸಾಕ್ಷಿ ನಗದಾಗಿ
ಕೊಟ್ಟಿದ್ದೇನೆ ಎನ್ನುತ್ತಾರೆ. ನಮ್ಮ ವಕೀಲರಾದ ಶಿವಾರೆಡ್ಡಿ
ರವರ ಕಛೇರಿಯಲ್ಲಿ ನಾನು ಹಣ ಕೊಟ್ಟಿದ್ದೇನೆ. 73 ಲಕ್ಷ
ಹಣವನ್ನು ಆರೋಪಿ ನಿಮ್ಮನ್ನು ಯಾವಾಗ ಕೇಳಿದರು ಎಂದರೆ
ಸಾಕ್ಷಿ ಅವರು ಆಸ್ತಿ ಖರೀದಿಸಬೇಕು ಎಂದು 2020
ಆಕ್ಟೋಬರ್ ನಲ್ಲಿ ಕೇಳಿದ್ದಾರೆ ಸುಮಾರು 1 ವರೆ ತಿಂಗಳ
ನಂತರ ನಾನು ಹಣ ಕೊಟ್ಟಿದ್ದೇನೆ. 3-4 ತಿಂಗಳಿನಿಂದ ನಾನು
ನನ್ನ ಬ್ಯಾಂಕಿನಿಂದ ಹಣವನ್ನು ಬೇರೆ ಉದ್ದೇಶಕ್ಕೆ ಎಂದು
ತೆಗೆದು ಇಟ್ಟಿದೆ. ನನ್ನ ಸ್ನೇಹಿತನಿಂದ ಸ್ವಲ್ಪ ಹಣ
ಪಡೆದುಕೊಂಡು ಆರೋಪಿಗೆ ಒಟ್ಟು 73 ಲಕ್ಷ ಹಣ
7
KABC0C0201782021 C.C.No.56225/2021
ಕೊಟ್ಟಿದ್ದೇನೆ. ಸುಮಾರು 40 ಲಕ್ಷ ಹಣವನ್ನು ಸ್ನೇಹಿತರಿಂದ
ನಾನು ಪಡೆದುಕೊಂಡಿದ್ದೇನೆ. ಉಳಿದ ಹಣ ನನ್ನ ಖಾತೆಯಿಂದ
ತೆಗೆದಿರುವ ಹಣ ಆಗಿರುತ್ತದೆ. ಬ್ಯಾಂಕ್ ಸ್ಟೇಟ್ಮೆಂಟನ್ನು ನಾನು
ಹಾಜರು ಪಡಿಸುತ್ತೇನೆ. 40 ಲಕ್ಷ ನಿಮಗೆ ಕೊಟ್ಟಿರುವ
ಸ್ನೇಹಿತರನ್ನು ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಸಾಕ್ಷಿ ಮಾಡುತ್ತೀರಾ
ಎಂದರೆ ಸಾಕ್ಷಿ ಅವರನ್ನು ಕೇಳುತ್ತೇನೆ. ಒಪ್ಪಿದರೆ ಮಾಡುತ್ತೇನೆ
ಎನ್ನುತ್ತಾರೆ. ನೀವು ಹಣ ಪಡೆದುಕೊಂಡಿರುವ ಸ್ನೇಹಿತರ
ಹೆಸರುಗಳನ್ನು ಹೇಳಿ ಎಂದರೆ ಸಾವ್ಷಿ ಮಣಿಕಂಠನ್
ಸದಾಶಿವನಗರ ಅಭಿಶೇಕ್ ರೆಡ್ಡಿ ಹೈದರಾಬಾದ್,
ವಿಜಯಕುಮಾರ್, ಜಯನಗರ, ಬೆಂಗಳೂರು. ಅವರೆಲ್ಲರಿಂದ
ನಗದಾಗಿಯೇ ಹಣ ಪಡೆದುಕೊಂಡಿದ್ದೀರಾ ಎಂದರೆ ಸಾಕ್ಷಿ
ಹೌದು ಎನ್ನುತ್ತಾರೆ.xxxxx''
16. PW-1 has further asserted that at the time of
advancing loan of ₹73,00,000/- to the accused,
Shivareddy Advocate and Surendran were present. At the
time of issuing cheque by the accused, Shivareddy
Advocate was present. Relevant portion of cross-
examination of PW-1 at page No.6 is extracted as under:-
" xxxxx ಹಣ ಕೊಡುವಾಗ ಯಾರು ಹಾಜರಿದ್ದರು ಎಂದರೆ
ಸಾಕ್ಷಿ ನಮ್ಮ ವಕೀಲರಾದ ಶಿವಾರೆಡ್ಡಿ, ಬಾಗಮಂಡಲ
ಪ್ಲಾಂಟೇಷನ್, ಕರಿಕೆ ಗ್ರಾಮ, ಮಡಿಕೇರಿ ತಾಲ್ಲೂಕಿನಲ್ಲಿ
ಸುರೇಂದ್ರ ರವರಿಗೆ ಸಂಬಂಧಿಸಿದ ಸ್ವತ್ತನ್ನು ಆರೋಪಿ
ಕೊಂಡುಕೊಳ್ಳುವವರಿದ್ದು, ಆ ಸುರೇಂದ್ರ ರವರೂ ಕೂಡಾ
ಅಲ್ಲಿ ಹಾಜರಿದ್ದರು. ಸುರೇಂದ್ರ ರವರು ಕ್ಲಿಪ್ವುಡ್
ಪ್ಲಾಂಟೇಷನ್ ಪ್ರೆೃವೇಟ್ ಲಿಮಿಟೆಡ್ನ
ಮ್ಯಾನೇಜಿಂಗ್
ಡೈರೆಕ್ಟರ್ ಆಗಿದ್ದಾರೆ. ಸುರೇಂದ್ರ ರವರಿಂದ ಸ್ವತ್ತನ್ನು
ಕೊಂಡುಕೊಳ್ಳುವ ಕಡೆಗೆ ಆರೋಪಿಗೆ ನಾನು 73 ಲಕ್ಷ ಹಣ
ಕೊಟ್ಟಿದ್ದೇನೆ.XXXXX"
17. Thus, as per the version of PW-1, he had
advanced ₹73,00,000/- to the accused for purchase of
property from said Surendran. It is pertinent to note that
the accused is not only disputing his acquaintance with
the complainant but also denying receipt of ₹73,00,000/-
8
KABC0C0201782021 C.C.No.56225/2021
from him. The accused is also disputing the financial
capacity of the complainant. In spite of this, the
complainant has not chosen to substantiate his financial
capacity and his source for advancing huge loan of
₹73,00,000/- to the accused by producing his bank
statement. As noted above, he has also not examined the
persons named by him in his cross-examination to
substantiate that he has borrowed ₹40,00,000/- from
them. He has also not examined the persons who were
allegedly present at the time of advancing money.
Elicitations made in the cross-examination of PW-1 clearly
indicate that the complainant never telephoned the
accused since 2018 to till the date of cross-examination on
09.02.2023. This is one of the strong circumstances to
disbelieve the case of the complainant. Although, he claims
that he has paid ₹73,00,000/- to the accused in cash, he
does not know the address of the accused and that he does
not know his place of residence. Relevant portion of
deposition of PW-1 at page No.7 is extracted as under:-
"XXXXX ಜಾನ್ಸನ್ ರವರ ಮನೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ. ಅವರ
ವಿಳಾಸ ಕೂಡಾ ನನಗೆ ಗೊತ್ತಿಲ್ಲ. ಆರೋಪಿಯನ್ನು ನಿಮ್ಮ
ಮನೆಗೆ ಏನಾದರೂ ಕರೆದೀರಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಇಲ್ಲ
ಎನ್ನುತ್ತಾರೆ. ಆರೋಪಿಯ ಯಾವ ಮಾಹಿತಿಯೂ ಇಲ್ಲದೇ
ಯಾವ ಆಧಾರದ ಮೇಲೆ 73 ಲಕ್ಷ ಹಣವನ್ನು ಆರೋಪಿಗೆ
ಕೊಟ್ಟಿರಿ ಎಂದರೆ ಸಾಕ್ಷಿ ನಮ್ಮ ವಕೀಲರ ಮುಖಾಂತರ
ಆದಾಯ ಮಾಡಿಕೊಡುತ್ತಾರೆ ಎಂದು ಆರೋಪಿಗೆ ಹಣ
ಕೊಟ್ಟಿದ್ದೇನೆ ಎನ್ನುತ್ತಾರೆ. XXXXX "
18. Further, evidence of PW-1 at page No.8 shows
that the accused never demanded the accused to repay the
9
KABC0C0201782021 C.C.No.56225/2021
money before issuing notice. On the other hand, it was
Shivareddy, Advocate who was making demand with the
accused for repayment. Strangely, the complainant has
never asked the accused to repay the money. When asked
about the reason, PW-1 has stated that he has done entire
transaction through Shivareddy, Advocate and it was him
who was making followup. It would be useful to extract the
relevant portion of deposition of PW-1 at page No.8 which
reads as under:-
"XXXXX ನೋಟೀಸನ್ನು ಕೊಡುವುದಕ್ಕೂ ಮೊದಲು
ಆರೋಪಿಯನ್ನು ಎಷ್ಟು ಬಾರಿ ಹಣ ವಾಪಸ್ ಕೊಡುವಂತೆ
ಕೇಳಿದ್ದೀರಿ ಎಂದರೆ ಸಾಕ್ಷಿ ನಮ್ಮ ವಕೀಲರಾದ ಶಿವಾರೆಡ್ಡಿ
ಯವರು ಹಲವಾರು ಬಾರಿ ಹಣ ಕೇಳಿ ಅದನ್ನು ಫಾಲೋಅಪ್
ಮಾಡಿದ್ದಾರೆ ಎನ್ನುತ್ತಾರೆ. ನೀವು ಒಂದು ಬಾರಿಯೂ
ಆರೋಪಿಯನ್ನು ಹಣ ಕೇಳಿಲ್ಲ ಎಂದರೆ ಸಾಕ್ಷಿ ಹೌದು
ಎನ್ನುತ್ತಾರೆ. ನೀವು ಒಂದು ಬಾರಿಯೂ ಕೂಡಾ ಹಣ ಕೇಳದೇ
ಇರುವುದಕ್ಕೆ ಏನು ಕಾರಣ ಎಂದರೆ ಸಾಕ್ಷಿ ನಮ್ಮ ವಕೀಲರಾದ
ಶಿವಾರೆಡ್ಡಿ ಯವರ ಮುಖಾಂತರ ವ್ಯವಹಾರವನ್ನು ನಾನು
ಮಾಡಿದ್ದು, ಅವರೇ ಅದನ್ನು ಫಾಲೋಅಪ್ ಮಾಡಿದ್ದರು
ಎನ್ನುತ್ತಾರೆ. ಶಿವಾರೆಡ್ಡಿ ಯವರು ಜಾನ್ಸನ್ ರವರಿಗೆ
ದೂರವಾಣಿ ಕರೆ ಮಾಡಿ ಹಣ ಕೇಳಿದ್ದಾರಾ ಎಂದರೆ ಸಾಕ್ಷಿ
ಹೌದು ಎನ್ನುತ್ತಾರೆ. ಚಕ್ಕು ಕೊಡುವ ಮೊದಲು, ಚಕ್ಕು
ಕೊಟ್ಟ ನಂತರ, ಚಕ್ಕನ್ನು ನಗದೀಕರಣಕ್ಕೆ ಸಲ್ಲಿಸಿದ
ನಂತರವೂ ಕೂಡಾ ಶಿವಾರೆಡ್ಡಿಯವರು ಆರೋಪಿಯ ಬಳಿ ಹಣ
ಕೇಳಿದ್ದಾರೆ. ನೀವು ಹಣ ಕೊಟ್ಟಿರುವ ಕಾರಣ ನೀವೇ ಹಣ
ಕೇಳಲು ತೊಂದರೆ ಇತ್ತಾ ಎಂದರೆ ಸಾಕ್ಷಿ ಶಿವಾರೆಡ್ಡಿಯವರ
ಮೇಲೆ ನನಗೆ ನಂಬಿಕೆ ಇದ್ದ ಕಾರಣ ನಾನು ಅದನ್ನು
ಫಾಲೋಅಪ್ ಮಾಡಲು ಹೋಗಿಲ್ಲ ಎನ್ನುತ್ತಾರೆ. ನಿಮ್ಮ
ದೂರಿನಲ್ಲಿ ಅಥವಾ ನೋಟೀಸ್ ನಲ್ಲಿ ಶಿವರಾರೆಡ್ಡಿಯವರ
ಮುಖಾಂತರ ಹಣ ವಾಪಸ್ ಕೇಳಿದ್ದೇನೆ ಎಂದು ಎಲ್ಲೂ
ಹೇಳಿಲ್ಲ ಎಂದರೆಸರಿ. ಶಿವಾರೆಡ್ಡಿ ಯವರನ್ನು
ನ್ಯಾಯಾಲಯದ ಮುಂದೆ ಸಾಕ್ಷಿ ಮಾಡುತ್ತೀರಾ ಎಂದರೆ ಹೌದು
ಎನ್ನುತ್ತಾರೆ. XXXXX "
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KABC0C0201782021 C.C.No.56225/2021
19. The above extracted evidence of PW-1 makes it very
clear that the complainant had never contacted the
accused after alleged lending of money. It was Shivareddy,
Advocate who was following up with the accused. If a
person lends huge sum to another person by borrowing
major portion of money from others, no prudent man
would keep quite without demanding for repayment by
letting another person to make a demand on his behalf.
This is yet another strong circumstance to disbelieve the
case put forth by the complainant.
20. The complainant is contending that, it was through
Shivareddy, Advocate, entire alleged transaction was done.
But, the said Shivareddy has not been examined before the
court. As noted above, the complainant has not examined
any of his alleged friends from whom he had allegedly
borrowed sum of ₹40,00,000/- for paying same to the
accused. There is no averment in the complaint with regard
borrowing of money from the friends of the complainant. It
is pertinent to note that though the complainant is
contending that he has paid ₹73,00,000/- to the accused
in cash, said alleged transaction has not been disclosed in
the income tax returns although PW-1 claims to be an
income tax assessee. At page No.11, he has deposed as
under:-
11
KABC0C0201782021 C.C.No.56225/2021
"XXXXX ನಾನು ಇನ್ಕಂ ಟ್ಯಾಕ್ಸ ರಿಟರ್ನ್ಸ ನ್ನು ಪೈಲ್
ಮಾಡುತ್ತೇನೆ. ಆರೋಪಿಯ ಜೊತೆಗಿನ ವ್ಯವಹಾರವನ್ನು ನಾನು
ರಿಟರ್ನ್ಸ ನಲ್ಲಿ ತೋರಿಸಿಲ್ಲ XXXXX "
21. None disclosure of lending of huge sum to another
person in Income Tax Return of lender is also a ground for
disbelieving the case of the complainant. In this regard, it
is useful to refer the judgment of Hon'ble Supreme Court in
Rajaram through LRs V/s Maruthachalam (since
deceased) through LRs; 2023 SCC OnLine SC 48, where
the Hon'ble Supreme court while setasiding the judgment
of Hon'ble High Court of Madras in convicting the accused,
affirmed the judgment of trial court and acquitted the
accused for offence under Section 138 of NI Act by
confirming the findings of the trial court to the effect that
Income Tax Returns of the complainant did not disclose
that he has lent amount to the accused and that his
declared income was not sufficient to give loan to the
accused. Therefore, the judgment in Rajaram's case (supra)
is squarely applicable to the case on hand.
22. In the present case, the complainant asserted in
the witness-box that he has borrowed ₹40,00,000/- from
his friends and remaining ₹33,00,000/- was withdrawn
from his bank account and thereafter he has lent
₹73,00,000/- to the accused. However, as pointed above,
the complainant has neither produced any document nor
examined his friends to prove this assertion. Therefore, this
12
KABC0C0201782021 C.C.No.56225/2021
court finds that the assertion of the complainant that he
has lent ₹73,00,000/- to the accused seems to be doubtful.
23. The defence of the accused that he had transaction
with one Surendran, to whom, he has handed over a blank
cheque for security towards purchase of property. It is his
case that he is a land broker and that security cheque
given to Surendran has been misused through Shivareddy.
It is elicited that the said Shivareddy used to come to the
court at the time of evidence of PW-1. When questioned as
to what is the reason for him to come to the court when
PW-1 was being cross-examined, PW-1 has stated that
Shivareddy also involved in the transaction. Relevant
portion of cross-examination of PW-1 at page No.12
extracted as under:-
"XXXXX ನಿಮ್ಮ ಸಾಕ್ಷ್ಯ ಆಗವಾಗ ಶಿವಾರೆಡ್ಡಿ ಕೂಡಾ
ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಬಂದು ಕುಳಿತಿದ್ದರು ಎಂದರೆ ಸಾಕ್ಷಿ
ಬಂದಿದ್ದರು, ಯಾಕೆಂದರೆ ಅವರು ಟ್ರಾನ್ಸಾಕ್ಷನ್ ನಲ್ಲಿ
ಭಾಗಿಯಾಗಿದ್ದಾರೆ ಎನ್ನುತ್ತಾರೆ. XXXXX "
24. This elicitation also clearly goes to show that
Shivareddy, Advocate involved in the alleged transaction.
In spite of these elicitations, for the reasons best known to
the complainant, he has not examined the said Shivareddy
to prove the alleged transaction. Evidence of said
Shivareddy would have been material to the case if he were
to be examined in court as the accused is denying the very
transaction with the complainant apart from denying his
acquaintance with the complainant.
13
KABC0C0201782021 C.C.No.56225/2021
25. Coming to the cross-examination of DW-1, where
at page No.3, it was suggested that the accused had
borrowed loan from the complainant for the purpose of
purchasing property from Surendran. DW-1 has denied the
said suggestion. Relevant portion of cross-examination of
DW-1 at page No.3 is extracted as under:-
"XXXXXX ಸುರೇಂದ್ರರವರ ಜಮೀನ್ನನ್ನು ಖರೀದಿಸಬೇಕೆನ್ನುವ
ಉದ್ದೇಶದಿಂದ ನಾನು ಶಿವಾರೆಡ್ಡಿ ವಕೀಲರ ಕಚೇರಿಗೆ ಬಂದ
ಸಂದರ್ಭದಲ್ಲಿ ಜಮೀನು ಖರೀದಿಸಲು ನನಗೆ ದೂರುದಾರರು ಸಾಲ
ಕೊಟ್ಟಿದ್ದಾರೆಂದರೆ ಸರಿಯಲ್ಲ. XXXXXX"
26. This is altogether different version introduced by
the complainant for the first time during cross-examination
of DW-1, as because, this has neither been pleaded in the
complaint nor deposed to by PW-1 in his evidence.
27. It is true that accused/DW-1 has admitted
execution of cheque and his signature at Ex.P1(a).
However, it is his defence that he had business dealings
with one Surendran in respect of property of Bhagamandal
Plantation and that the said Surendran had taken cheque
for ₹73,00,000/- from him assuring that he would sell the
same to the accused. According to the accused, said
Surendran has not executed sale deed. On the other hand,
he has executed agreement of sale in favour of M/s Ekeko
Buildcon and Infra Private Limited. To substantiate the
same, the accused has produced certified copy of sale
agreement at Ex.D1.
14
KABC0C0201782021 C.C.No.56225/2021
28. Upon perusal of the recitals of Ex.D1, it is forth
coming that M.K Surendran, resident of Trissur, Kerala
agreed to sell land bearing Sy.No.444/1 (Old Sy.No.444) of
Karike Village, Bhagamandala Hobli, Madikere Taluk
measuring 244.70 acres in favour of M/s Ekeko Buildcon
and Infra Private Limited for a sale consideration of
₹18,96,42,500/-, out of which, M/s Ekeko Buildcon and
Infra Private Limited has paid advance sale consideration
of ₹49,50,000/- to M.K Surendran. Ex.D-1 substantiates
that said M.K Surendran is the owner of M/s Bhagamandal
Plantation Limited and the land bearing Sy.No.444/1 of
Karike Village, Madikere Taluk.
29. As noted above, elicitations made in the cross-
examination of PW-1 indicate that Shivareddy, Advocate
involved in the transaction and it was him who was calling
up with the accused for repayment. If really the
complainant has advanced money to the accused, the
normal human conduct would be that the lender himself
approached the accused for repayment. It is elicited in the
cross-examination of complainant that he had never tried
to contact the accused since 2018. Had really the
complainant advanced huge sum of ₹73,00,000/- to the
accused, certainly he personally would have met or
contacted the accused asking for repayment. But, as per
the evidence of PW-1 in his cross-examination, since 2018
he has never telephoned the accused. The complainant has
neither produced any document nor examined his so-called
15
KABC0C0201782021 C.C.No.56225/2021
friends from whom he has allegedly taken ₹40,00,000/- to
prove the source for lending the money. Though, the
complainant has claimed that at the time of paying money
to the accused, Shivareddy, Advocate and Surendran were
present, there not examined in court. They are the best
witnesses to prove the alleged lending of money to the
accused. He also not produced document to show that he
has withdrawn remaining sum of ₹33,00,000/- from his
bank account on various dates as claimed by him. All these
circumstances create doubt with regard to money
transaction between the complainant and the accused.
Non-production of bank account statement of the
complainant and for non-examination of material
witness(es) would lead to drawing adverse inference.
Therefore, adverse inference is drawn against the
complainant.
30. In a prosecution under Section 138 of NI Act,
accused for discharging the burden of proof, may do so on
the basis of materials produced by the complainant and
the standard of proof so as to prove defence on the part of
an accused is "preponderance of probabilities".
31. In this regard, reference can be made to the
decision of the Hon'ble Supreme Court in the case of
Bharat Barrel & Drum Manufacturing Company vs.
Amin Chand Pyarelal; 1999 (3) SCC 35, wherein it was
held:
16
KABC0C0201782021 C.C.No.56225/2021
"Upon consideration of various judgments
as noted hereinabove, the position of law
which emerges is that once execution of the
promissory note is admitted, the
presumption under section 118(a) would
arise that it is supported by a consideration.
Such a presumption is rebuttable. The
defendant can prove the nonexistence of a
consideration by raising a probable
defence. If the defendant is proved to have
discharged the initial onus of proof showing
that the existence of consideration was
improbable or doubtful or the same was
illegal, the onus would shift to the plaintiff
who will be obliged to prove it as a matter
of fact and upon its failure to prove would
disentitle him to the grant of relief on the
basis of the negotiable instrument. The
burden upon the defendant of proving the
non existence of the consideration can be
either direct or by bringing on record
preponderance of probabilities by reference
to the circumstances upon which he relies.
In such an event, the plaintiff is entitled
under law to rely upon all the evidence led
in the case including that of the plaintiff as
well. In case, where the defendant fails to
discharge the initial onus of proof by
showing the non existence of the
consideration, the plaintiff would invariably
be held entitled to the benefit of
presumption arising under section 118(a) in
his favour. The court may not insist upon
the defendant to disprove the existence of
consideration by leading evidence as the
existence of negative evidence is neither
possible not contemplated and even if led, it
is to be seen with a doubt..."
17
KABC0C0201782021 C.C.No.56225/2021
32. Hon'ble Supreme Court in the case of Krishna
Janardhan Bhat Vs. Dattatraya G Hegde; AIR 2008 SC
1325, wherein the Hon'ble Court has categorically held the
following:
"32. accused for discharging the burden of
proof placed upon him under a statute
need not examine himself. He may
discharge his burden on the basis of the
materials already brought on record. As
accused has a constitutional right to
remain silence. Standard of proof on the
part of an accused and that of the
prosecution in a criminal case is different.
34. Furthermore, whereas prosecution
must prove the guilt of an accused beyond
all reasonable doubt, the standard of
proof so as to prove defence on the part of
an accused is "preponderance of
probabilities". Inference of preponderance
of probabilities can be drawn not only
from the materials brought on record by
the parties but also by reference to the
circumstances upon which he relies."
33. This principle has been reiterated by the Hon'ble
Supreme Court in Rangappa vs. Sri Mohan; (2010) 11
SCC 441, wherein while discussing the scope and ambit of
statutory presumption under section 139 of the Act, the
Hon'ble Court has held:
"27. Section 139 of the Act is an example
of a reverse onus clause that has been
included in furtherance of the legislative
18
KABC0C0201782021 C.C.No.56225/2021
objective of improving the credibility of
negotiable instruments. While section 138
of the Act specifies a strong criminal
remedy in relation to the dishonour of
cheques, the rebuttable presumption
under section 139 is a device to prevent
undue delay in the course of litigation.
However, it must be remembered that the
offence made punishable by section 138
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 defendantaccused
cannot be expected to discharge an
unduly high standard of proof.
28. In the absence of compelling
justifications, reverse onus clause 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 139, 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 recoverable debt or liability, the
prosecution can fail. As clarified in the
citations, the accused can rely C.C.
No.2794/16 Dated 19.05.2023 Pages 9 on
the material submitted by the complainant
in order to raise such a defence and it is
conceivable that in some cases the
19
KABC0C0201782021 C.C.No.56225/2021
accused may not need to adduce evidence
of his/her own."
"Upon consideration of various judgments
as noted hereinabove, the position of law
which emerges is that once execution of
the promissory note is admitted, the
presumption under section 118(a) would
arise that it is supported by a
consideration. Such a presumption is
rebuttable. The defendant can prove the
nonexistence of a consideration by raising
a probable defence. If the defendant is
proved to have discharged the initial onus
of proof showing that the existence of
consideration was improbable or doubtful
or the same was illegal, the onus would
shift to the plaintiff who will be obliged to
prove it as a matter of fact and upon its
failure to prove would disentitle him to the
grant of relief on the basis of the
negotiable instrument. The burden upon
the defendant of proving the non existence
of the consideration can be either direct or
by bringing on record preponderance of
probabilities by reference to the
circumstances upon which he relies. In
such an event, the plaintiff is entitled
under law to rely upon all the evidence led
in the case including that of the plaintiff as
well. In case, where the defendant fails to
discharge the initial onus of proof by
showing the non existence of the
consideration, the plaintiff would
invariably be held entitled to the benefit of
presumption arising under section 118(a)
in his favour. The court may not insist
upon the defendant to disprove the
existence of consideration by leading
evidence as the existence of negative
20
KABC0C0201782021 C.C.No.56225/2021
evidence is neither possible not
contemplated and even if led, it is to be
seen with a doubt..."
34. Further, the above said principles have also been
recently crystallized by Hon'ble Supreme Court in the case
of Basalingappa vs Mudibasappa; (2019) 5 SCC 418,
where it s held that:-
"25. We having noticed the ratio laid
down by this Court in above cases on
Sections 118(a) and 139, we now
summarise the principles enumerated
by this Court in following manner:
(i) Once the execution of cheque is
admitted Section 139 of the Act
mandates a presumption that the
cheque was for the discharge of any
debt or other liability.
(ii) The presumption under Section 139
is a rebuttable presumption and the
onus is on the accused to raise the
probable defence. The standard of proof
for rebutting the presumption is that of
preponderance of probablities.
(iii) To rebut the presumption, it is open
for the accused to rely on evidence led
by him or accused can also rely on the
materials submitted by the complainant
in order to raise a probable defence.
Inference of preponderance of
probabilities can be drawn not only from
the materials brought on record by the
parties but also by reference to the
circumstances upon which they rely.
21
KABC0C0201782021 C.C.No.56225/2021
(iv) That it is not necessary for the
accused to come in the witness box in
support of his defence, Section 139
imposed an evidentiary burden and not
a persuasive burden.
(v) It is not necessary for the accused to
come in the witness box to support his
defence."
35. In the present case, of course, the complainant
has produced cheque and other documents to substantiate
his case. In fact, the signature of the accused on the
cheque having not been disputed, the presumption under
Section 118 and 139 of NI Act would attract. However, the
accused has probabilized his defence by producing
evidence to disbelieve the case setup by the complainant.
Thus, evidential burden casted on him has been
discharged and it is for the complainant to prove the facts
alleged by him independently without taking aid of the
presumption under Section 118 and 139 of NI Act. In this
regard, reliance is placed on the judgment of Hon'ble
Supreme Court in the case of Rajesh Jain V/s Ajay
Singh; (2023) 10 SCC 148, where it is held as under:
"55. As rightly contended by the appellant,
there is a fundamental flaw in the way both
the Courts below have proceeded to
appreciate the evidence on record. Once the
presumption under Section 139 was given
effect to, the Courts ought to have
proceeded on the premise that the cheque
was, indeed, issued in discharge of a debt/
liability. The entire focus would then
22
KABC0C0201782021 C.C.No.56225/2021
necessarily have to shift on the case set up
by the accused, since the activation of the
presumption has the effect of shifting the
evidential burden on the accused. The
nature of inquiry would then be to see
whether the accused has discharged his
onus of rebutting the presumption. If he
fails to do so, the Court can straightaway
proceed to convict him, subject to
satisfaction of the other ingredients of
Section 138. If the Court finds that the
evidential burden placed on the accused
has been discharged, the complainant
would be expected to prove the said fact
independently, without taking aid of the
presumption. The Court would then take an
overall view based on the evidence on
record and decide accordingly."
(underlined for emphasis)
36. But, the complainant has failed to prove the facts
independently. Therefore, the accused deserves acquittal.
In the result, I answer Point No.1 in the negative.
37. Point No.2:-In view of the findings recorded on
Point No.1, I proceed to pass the following:
ORDER
Accused is not found guilty.
Acting under Section 255(1) of Cr.P.C.,
accused is acquitted of the offence punishable
under Section 138 of Negotiable Instruments
Act. He is set at liberty.
23
KABC0C0201782021 C.C.No.56225/2021
Bail bonds executed by the accused shall
stand cancelled. Cash security deposited by
him is ordered to be continued till the expiry of
the appeal period.
Acting under Section 437-A Cr.P.C.,
accused is directed to execute fresh bail bond
for ₹5,00,000/- to appear before the higher
court as and when such court issues notice in
respect of any appeal that would be preferred
against this judgment.
(Dictated to the Stenographer, transcript computerized by her,
revised corrected and then pronounced by me in the open Court
on this the 24th day of December, 2024)
( SANTHOSH S.KUNDER )
XIV Addl.C.J.M., Bengaluru.
ANNEXURES
List of witness examined for the complainant:
PW.1 Naga Sankeerth Segu Amaranath
List of documents marked for the complainant:
Ex.P.1 Cheque
Ex.P.2 Bank endorsement
Ex.P.3 Copy of legal notice
Ex.P.4 Postal receipt
Ex.P.5 Postal acknowledgment
Ex.P.6 Reply notice
24
KABC0C0201782021 C.C.No.56225/2021
List of witness examined for the defense:
DW.1 C.L.Johnson
List of documents marked for the defense:
Ex.D.1 Certified copy of sale agreement
XIV Addl.C.J.M., Bengaluru.
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