Bangalore District CourtSri. Manju vs Srinivasa V.R on 25 August, 20221\n                                                  C.C.No.13199/2015\n\n\n\nKABC030367102015\n\n\n\n\n                            Presented on    : 22-05-2015\n                            Registered on   : 22-05-2015\n                            Decided on      : 25-08-2022\n                            Duration        : 7 years, 3 months,\n                                             3 days\n\n    IN THE COURT OF THE XVI ADDITIONAL CHIEF\n   METROPOLITAN MAGISTRATE, BENGALURU CITY\n\n    Dated : This the 25th day of August 2022.\n\n    Present: Sri.N.M.RAMESHA, B,Com,L.L.M\n               XVI Addl.C.M.M., Bengaluru City.\n\nCase No.           C.C.No\n                        : C.C.No.13199/2015\n\nComplainant            :   Sri. Manju,\n                           S/o. Late Venkatappa,\n                           Aged about 33 years,\n                           Residing at Hosvanagana\n                           Doddi,\n                           Ganulu Post,\n                           Kanakapura Taluk,\n                           Ramanagara District.\n\n                           (By Sri.C.S. Shivakumar, Adv,)\n                            V/s\nAccused                :   Srinivasa V.R.\n                           S/o Ramachandra,\n                           Aged about 35 years,\n                           R/at Dombaradoddi,\n                           Kallahalli Village,\n                                    2\n                                                     C.C.No.13199/2015\n\n\n\n                                 Kanakapura Kasaba,\n                                 Kanakapura Taluk,\n                                 Ramanagara District.\n\n                                 (By Sri.A.B. Siddaraju, Adv.,)\n\nCase instituted            :     31.01.2015\nOffence complained of      :     U/s 138 ofN.I ActPlea of Accused            :     Pleaded not guilty\nFinal Order                :     Accused is Acquitted\nDate of order              :     25.08.2022\n\n\n                        JUDGMENTThe Complainant has filed this complaint against\nthe accused under the provisions ofSec.200of the Code\nof Criminal Procedure, for the offence punishable\nu/Sec.138of the Negotiable Instruments Act.2. The case of the Complainant is as under:-The complainant and accused are close friends and\nthey    are   doing     driver     work.    The    accused        taking\nadvantage of friendship, the accused approached the\ncomplainant in the last week of November 2013 for hand\nloan of Rs.2,50,000/- by pleading his difficulties and to\nsolve his family problems. The complainant has agreed\nto lend the loan and paid Rs.2,50,000/- to the accused3C.C.No.13199/2015\n\n\n\non 15.12.2013 by way of cash. The accused has agreed\nto return the loan amount within June 2014.3.   It is further awarded in the complaint that in\nthe month of June 2014, the complainant requested and\ndemanded the accused to return the hand loan. the\naccused by pleading his difficulties has issued post\ndated cheque bearing No.016488 dated 01.08.2014 for\nRs.2,50,000/- drawn on Syndicate Bank, Kathriguppa,\nBangalore towards repayment of loan. On the assurance\nof the accused, the complainant has presented the\ncheque for encashment through his banker State Bank\nof   Mysore,   Kanakapura      Branch,   Bangalore         on\n01.08.2014. But the said cheque was came be returned\nunpaid with an endorsement as "Drawer Signature\nDiffers". Therefore, the complainant got issued a legal\nnotice dated 11.08.2014    calling upon the accused to\nrepay the cheque amoutn within 15 days from date of\nservice of notice. The said notice was returned unserved\nwith an endorsment " Constinuation summoned not\nclaimed. The accused has failed to pay the cheque\namount and thereby committed the offence punishablue\nU/s.138 of N.I.Act. Hence, this complaint.4C.C.No.13199/20154. After presentation of the complaint, it was\nordered to be registered as PCR No.2164/2015 vide\norder dt: 31.01.2015.5.   The Sworn Statement of the complainant has\nbeen recorded and original documents were produced\nbefore the court.6. My learned predececssor in office having heard\nthe arguments of learned counsel for the complainant\nand   on   considering       complaint         averments,     sworn\nstatement and contemplated on record and having\nsatisfied with the prima-facie materials placed on record,\nhas taken the cognizance for the offence punishable\nU/s.138 of N.I.Act and ordered to be registered the\ncriminal case as C.C.No.1399/2015 and process was\nordered was issued against the accused vide order dated\n22.05.2015.7. On service of summons, the accused has\nappeared before the court through his learned counsel\nand   obtained      bail   vide       order   dt:   23.09.2015     by\nfurnishing surety all the prosecution papers were\nsupplied to accused.8. The plea of accused for the offence punishable\nU/s.138 ofNI Acthas been recorded and the substance5C.C.No.13199/2015\n\n\n\nof the accusation has been read over and explained to\nthe accused in the language knwon to him. The accused\nhas pleaded not guilty, but claims to be tried.9.    In order to establish his case against the\naccused, the complainant got examined himself as PW-1\nand got the documents marked as Ex.P.1 to P.6.10. Inspite of sufficient opportunity has been\ngiven, the accused did not choose to examine P.W.1 and\ntherefore the cross-examination of P.W.1 was ordered to\nbe taken as nil.11. The statement of accused as contemplated\nunder the provisons ofSec.313of Cr.P.C. has been\nrecorded and the increminating evidnece as such\nforthcoming against the accused in the evidence of\ncomplainant has been read over and explained to the\naccused in the language known to him. But the accused\nhas denied the entire evidence of complainant and the\ndocuments and the defence of the accused is as that of\ntotal denial. Initially, the accused did not choose to enter\nthe defence evidence. Thereafter, the accused failed to\nenter the witness box inspite of sufficient opportunity\nwas given and therefore the defence evidence was\nordered to be taken as nil and closed.6C.C.No.13199/201512. My learned predececssor in office having\nheard the arguments and on considered and assesement\nthe oral and documentary evidence present on record\nhas come to the conclusion that the complainant has\nproved the guilty of the accused for the offence\npunishable undersection 138of N.I.Act and accordingly\nconvicted the accused and sentenced to pay fine of\nRs.2,75,000/- for the offence punishable undersection\n138of N.I.Act out of whihc an amount of Rs.2,65,000/-\nwas   ordered   to   be   paid   to   the   complainant     as\ncompensation within 30 days and the ramining of\nRs.10,000/- was ordered to be state exepnces.13. The accused being agreevied by the judgment\nand sentence passed by this court has preferred an\nappeal before the Cril.Appeal No.30/2017 before the\nHon'ble 62nd Addl.City Civil and Sessions Judge,\nBengaluru which was came to be allowed vide judgment\ndated 01.04.2022 with cost of Rs.10,000/- and the\njudgment and sentence passed by this court has been\nset aside and the matter has been remanded this court\nfor fresh disposal with a direction to take the case record\nfrom the stage of cross-examination of P.W.1 and also\nprovide and opportunity to accused to lead a defence\nevidence on his behalf and to adjudicate the case on day7C.C.No.13199/2015\n\n\n\nto day basis and to make an endure to dispose of the\ncase withinin 3 months from the date of the order.14. In obedieance and direction of the Hon'ble\nApelete court, the case was ordered to restored to its\noriginal file and court notice was ordered to be issued to\nboth the parties.15. On service of court notice, both the parties\nhave appeared before this court through their respective\ncounsels. Accordingly on opportunity was given to the\naccused to cross-examine P.W.1 and also to lead his\ndefence evidence. Accordingly P.W.1 was subjected for\ncross-examination by the learned counsel for the\naccused.16.   The statement of accused has contempleted\nundersec.313Cr.P.C. was already recorded vide order\ndated 01.06.2016.17. In order to substantiate his defence, the\naccused got himself examined as DW.1 and got the\ndocumetns marked as Ex.D.1.18. I have heard the arguments of learned counsels\nfor both the sides. The learned counsel for the accused\nhave also filed notes of arguments with two citations. In\nthe light of the arguments canvassed on both the sides i8C.C.No.13199/2015\n\n\n\nhave carefully gone through the oral and documentary\nevidence placed on record and also prays to laid down in\nthe cited decisions. and perused the records.19.   Now, the points that are arise for             my\nconsideration are as under :1. Whether the Complainant proves that the\n        accused has availed a loan of Rs.2,50,000/-on 15.12.2013 and issued a cheque bearing\n        No.016488,       dated   01.08.2014      for\n        Rs.2,50,000/-      on   Syndicate     Bank,\n        Kathriguppa, Bengaluru in his favour\n        towards the legally recoverable debt or any\n        other liability and on presentation of the\n        cheque for encashment on 01.08.2014, it\n        was came to be returned unpiad with an\n        endorsement as "Drawers Signature Differs"and in spite of issuance of legal notice\n        dated 1.08.2014 and in spite of service of\n        legal notice, the accused has failed to pay\n        the cheque amount and thereby committed\n        an offence punishable U/s.138 of N.I.Act?2. What Order ?20.    On considering the oral and documentatry\nevidnece placed on record, now my answer to the above\npoints are as under :Point No.1: In the Negative.Point No.2: As per final order for the following :9C.C.No.13199/2015\n\n\n\n                            REASONS21. Point No.1 :           The complainant has filed his\ncomplaint    against      the     accused      for     the     offence\npunishable undersection 138of N.I.Act.22. The complainant has filed his affidavit in his\nchief-examination      wherein         he    has     reiterated     the\naverments made in the complaint. The complainant has\nproduced     the    cheque        dated      01.08.2014,          Bank\nendorsement     dated     02.08.2014,        legal    notice      dated\n11.08.2014, postal receipt dated 12.08.2014, postal\ncover and they are marked at Ex.P.1 to 7.23.     The provisions ofSec.118of Negotiable\nInstrument    Act   deals       about       presumptions       as    to\nneogtiable instruments. As per this provisions of law,\nunit the contrary is proved, the following presumptions\nshall be made:-(a) of consideration: that every negotiable\ninstrument was      made or drawn for consideration and\nthat every such instrument, when it has been accepted,\nindorsed,    negotiated    or        transfered,     was     accepted,\nindorsed, negotiated or transferred for considertaion: (b)\nas to date: that every negotiable instrument bearing a\ndate was made or drawn on such date; (c) as to time of\nacceptance-that every accepted bill of exchange was\naccpted within a reasonable time after its date and10C.C.No.13199/2015\n\n\n\nbefore its maturity. (d) as to time of transfer-that every\ntransfer of a negotiable instrument was made before the\nmaturity; (e) as to order of indorsement; that the\nindorsements appearing upon a negotiable instrument\nwere made in the order in which they apear thereon; (f)\nas to stamps-that a lost promissory note, bill of\nexchange or cheque was duly stamped and (g) that\nholder is a holder indue course-that the holder of a\nnegotiable instrument is a holder in due course.24.   The   provisions    ofSec.138of   Negotiable\nInstrument Act deals about dishonour of cheque for\ninsufficiency etc., of funds in the accounts. As per this\nprovisions of law where any cheque drawn by a person\non an account maintained by him with a banker for\npayment of any amount of money to another person\nfrom out of that account for the discharge, in whole or\ninpart, of any debt or other liability, is returned by the\nbank unpaid, either because of the amount of money\nstanding to the credit of that account is insufficient to\nhonour the cheque or that it exceeds the amount\narranged to be paid from that account by an agreement\nmade with that bank, such person shall be deemed to\nhave committed an offence and shall without prejudice\nto any other proviosn of this Act, be punished with\nimprisonment for a term which may be extended to two11C.C.No.13199/2015\n\n\n\nyears or with fine which may extend to twice the amount\nof the cheque or with both.25. As per the proviso attached to the above said\nprovisions of law, nothing contained in this section shall\napply unless-(a) the cheque has been presented to the\nbank within a period of six months from the date on\nwhich it is drawn or within the period of its validity,\nwhichever is earlier. (b) the payee or the holder in due\ncourse of the cheque, as the case may be, makes a\ndemand for the payment of the said amount of money by\ngiving a notice, in writing , to the drawer of the cheque,\nwithin thirty days of the receipt of information by him\nfrom the bank regarding the return of the cheque as\nunpaid, and (c) the drawer of such cheque fails to make\nthe payment of the said amount of money to the payee\nor, as the case may be, to the holder in due course of the\ncheque, within fifteen days of the receipt of the said\nnotice.[   26.   The provisions ofSec.139of Negotiable\nInstrument Act deals about presumption in favour of\nholder. As per this provisions of law, it shall be\npresumed, unles the contrary is proved, that the holder\nof a cheque received the cheque of the nature referred to12C.C.No.13199/2015\n\n\n\ninsection 138for the discharge, in whole or in part, or\nany debt or other liability.[[   27. Now, keeping the above said provisions of law\nin mind, let us consider as to whether the complainant\ncould able to fullfill all the mandates and ingredients ofSec.138of N.I.Act, so as to raise the presumption in his\nfavour available under the provisions ofSec.118and139of N.I.Act.28. Now, keeping the above said provision of law in\nmind let us consider as to wheather the complainant is\nable to comply the amendated ingredients, terms and\nconditions ofsection 138of N.I.Act so as to raise a\npresumption in his favour as contemplated under\nprovision ofSection 138and139of N.I.Act.29.     It is awarded in the complaint and also stated by\nP.W.1 in his oral evidence that they are close friends and\ndoing driver work and therefore the accused approached\nhim in the last week of November 2013 seeking hand\nloan of Rs.2,50,000/     on 15.12.2013 and the accused\nhas agreed to return the loan amoutn within June 2014\nand on request, the accused has issued a cheque\nbearing No.016488 dated 01.08.2014 for Rs.2,50,000/-\ndrawn on Syndicate Bank, Kathriguppa, Bangalore\ntowards the legally recoverable debt or any other liability13C.C.No.13199/2015\n\n\n\nand on presentation of the cheque for encashment on\n01.08.2014, it was came to be returned unpiad with an\nendorsement as "Drawers Signature Differs"          and in\nspite of issuance of legal notice dated 1.08.2014 and in\nspite of service of legal notice, the accused has failed to\npay the cheque amount and therefore he has filed the\ncomplaint before the court. As already stated above, the\ncomplainant has produced cheque dated 01.08.2014,\nBank endorsement dated 02.08.2014, legal notice dated\n11.08.2014, postal receipt dated 12.08.2014, Postal\ncover and they are marked at Ex.P1 to 7.30. In this case the accused not only denied the\navailment of loan of Rs.2,50,000/- from the complainant\nbut also issued a cheque in question towards legally\nrecoverable debt and also dishonoure of cheque for want\nof sufficient funds in his account, issued a legal notice.\nBecause it is the specific defence and also evidene of\nD.W.1 that he do not know the complainant and not\navailed any loan amount from the complainant at any\npoint of time and also not issued any cheque to the\ncomplianant. The contention and significance of the\ncheque are not belongs to him and he is not residing in\nthe address given by the complianant in the complaint14C.C.No.13199/2015\n\n\n\nand notice and he is residing ..............District. He has\nnot received any notice from the complainant. He used\nto put his signature in English and also one Nagesh was\nused to visit his house and his cheque was kept on the\ntable was misplaced and since then the said Nagesh was\ngood to him and the said Nagesh has intentionally failed\nthe complaint through the Complainant and therefore he\nis not lible to pay any cheque amount to him.31.        Under these circumstance the initial burden\nlies on the complainant to prove the loan transaction of\nRs.2,50,000/- and issued a cheque in question for\nlegally enforceable debt and the complainant is required\nto comply the prosecution ofsec.138of N.I.Act so as to\nraise presumption in favour ofsec.138and139of\nN.I.Act.32.   The learned cousnel for the complainant has\nargued with force the oral evidence of P.W.1 read with\ndocumentory Ex.P1 to 7 clearly establishes that the\naccused being the friend of complainant was doing his\nwork along with the complainant and taking advantage\nof the friendship, the accused has approached the\ncomplianant in the last week of November 2013 for hand15C.C.No.13199/2015\n\n\n\nloan of Rs.2,50,000/- and accordingly the complainant\nhas paid the loan of Rs.2,50,000/- to the complainant\non 15.12.2013 and the accused has agreed to repay the\nloan within the month of June 2014. The materials on\nrecord would exist with the accused has issued a cheque\nas per Ex.P1 for discharge of legally recoverable debt, on\nrepresentation of cheque, it was came to be dishonourd\nfor "Insufficient Funds" in the account of the accused.\nand therefore the complainanat has issued the legal\nnotice whihc has been served on the accused. It is\nfurther contended that, the complainant has fulfilled all\nthe mandatory ofsec.138of N.I.Act and therefore the\npresumption is in favour of the complainant undersection 118and139of N.I.Act.33.   The accused has taken a contention that he has\nnot availed the loan from the complainant at any point\nof time and also not issued cheque in favour of the\ncomplainant and it was misplaced in his house. But the\naccused has not proved the defence before the court and\nalso not produced any documents before the court and\nthereby failed to rebut the statutory presumptions. The\ncomplainant has issued the notice to the correct address\nof the accused and thereby complied the mandatory ofsection 138of the N.I.Act and therefore the accused is\nliable for conviction.16C.C.No.13199/201534.       Percontro the learned counsel for the accused\nhas vehimentarily contended that, the oral evidence of\nP.W.1 andn documentary evidence at Ex.P1 to 7 do not\nestablish source of income of the complianant so as to\nlend loan of Rs.2,50,000/-           to the accused. The\ncomplianant had no financial capacity to lend that much\namount and that the accused do not know the\ncomplaiant and also not availed any loan. It is further\ncontended that, the complainant has not issued the legal\nnotice to the accused and the said notice also not served\non the accused and thereby the complainant has failed\nto comply the amend ofSec.138of N.I.Act. and hence\npresumption is not available to the complainant.35.     It is further contended that, the accused has\nnot at all availed any loan from the complainant at any\npoint of time and also not issued cheque in question to\nthe complainant, but the cheque was misplaced on the\nhouse of the accused and one Nagaraj was visited the\nhouse of the accused he was inhailed to the accused\ntherefore the said Nagaraj and complainant have\ncolluded with each other and filed the complaint against\nthe   accused.   It   is   further   contended   that,   the\ncomplainant had no required fund having advanced the\nmoney to the accused and there is no existence of legally\nrecoverable debt from the accused and therefore in view17C.C.No.13199/2015\n\n\n\nof the failure on the part of the complainant about these\nfacts, the complainant is liable to be dismissed and the\naccused is entitled to an order of accquittal.36.      In suppor tof his submission the learned\ncounsel for the accused has relied upon the decision\nrendered by the Hon'ble Supreme Court of India in Crl.\nAppeal No.2043/2013 in between John K. Abraham and\nSimon C. Abraham and another wherein while dealing\nwith the presumption ofSec.138of N.I.Act, the Hon'ble\nSupreme Court has placed to held that, in order to draw\nthe presumption undersection 118read along with 139\nof theNegotiable Instruments Act, the burden was\nheavily upon the complainant to have shown that he had\nrequired funds for having advanced the money to the\naccused that the issuance of the cheque in support of\nthe said payment advanced was true and that the\naccused was bound to make the payment as had been\nagreed while issuing the cheque in favour of the\ncomplainant.37.      The learned counsel for the accused has also\nrelied upon the decision relied by the Hon'ble Supreme\nCourt of India in Crl. Appeal No.271/2020 in betweenAPS Fores Services Pvt. Ltd Vs., Shakti International\nFashion Linkers and orsWherein while dealing with the18C.C.No.13199/2015\n\n\n\nprovision ofSec.138of N.I.Act, the Hon'ble Supreme\nCourt of India has placed to held that, whenever the\naccused has questioned the financial capacity of the\ncomplainant in support of his probable defence, despite\nthe presumption undersection 139of the N.I.Act about\nthe presumption of legally enforceable debt and such\npresumption is rebuttable, thereafter the onus shifts\nagain on the complainant to prove his financial capacity\nand at that stage the complainant is required to lead the\nevidence   to   prove   his        financial   capacity,     more\nparticularly when it is a case of giving loan by cash and\nthereafter issuance of a cheque.38.      Now keeping the arguments comes on both\nthe side in mind and also principleslaid down inthe\nabove said decisisions, including provision ofsection\n118and138and139, let us consider as to wheather the\ncomplainanat could able to prove that he has lend a loan\nof Rs.2,50,000/- to the complainant and the accused\nhas issued cheque in question for legally recoverable\ndebt and therefore the presumption is available in his\nfavour.39.      As already stated above, it is the              specific\ndefence fo the accused and also the evidence of D.W.1\nthat, he do not know the complainant and has not19C.C.No.13199/2015\n\n\n\navailed any any loan from the complainant at any point\nof time and also not issued cheque in question. The\ncontents of the cheque and also signature are not\nbelonges to him and he has not residing in a address\ngiven by the complianant and therefore the notice was\nserved on him and one Nagaraj who was the neighbour\nwas visiting his house and at that time, the cheque was\nmisplaced and he was his inimicable towards him and\ntherefore the complainant has failed the false complaint\nagainst him.40.     It   is   suggested    to   D.W.1   that,   he   and\ncomplainant were working as driver and clearner's at\nDambaradoddi and situated to adjusent to each" " he is\nhaving house in Dambaradoddi" " he and his father are\nresiding at Dambaradoddi doing agriculture work " that\nhe and Nagaraj are good friends" and that he has availed\na loan of Rs.2,50,000/- from the complainant and\nissued cheque to the complainant " that he has avaialed\nloan from different persons including one Ravi who is\nresidence of Kallahalli and who have filed the criminal\ncase against him. " he refused the notice and also\nsummons issued by him" he used to put his signature in\nKannada language in his service record and also on all\nthe docuemnts. " He is deposing false evidence to the\neffect that he used to put his signatrue in English20C.C.No.13199/2015\n\n\n\nLanguage " that the name of his father is Ramachandra\nand not Ramachadraiah ' he threated the lenders to\ninitiate attracity case against them. " he has borrowed\nthe loan from the complainant to construct the house\nand issued the cheque in question and therefore he is\nliable to pay the cheque amount to the complainant.41.   But    all   these    amended     have    specifically\ndenied by D.W.1.Therefore the denial suggestion are\nalways remained as doubt and not can .. in the\ncomplainant either to substantiat the case or the\nevidence of D.W.1 or to falsly the probable defence taken\nby the accused.42.      The    complainant        all   the   while   in   his\ncomplainat and also in his evidence has stated that, he\nand accused are close friends and doing driver work and\ntaking advantage of the friendship, he approahed him\nfor a hand loan of Rs.2,50,000/- in the last week of\nNovember 2013 and therefore he has paid a loan of\nRs.2,50,000/- on 15.12.2013 to the accused by way of\ncash.43.      But    the complainant has not produced any\ndocuments so that he and accused are the close frineds\nand doing driving work. In fact the compliant notice and\naffidavit cheif-examination of P.W.1 do not inticated or21C.C.No.13199/2015\n\n\n\nestablished the exact date on which the accused\napproached him for seeking loan of Rs.2,50,000/-. The\ncomplainant notice and affidavit cheif-examination of\nP.W.1 are very much slight and also vage in nature\nunless     record      and   specific    date     on     which    the\ncomplainant has not approached the complainat exact\ndate on ...... accused seeking loan of Rs.2,50,000/-.44.       The complainant all the while in his complaint\nand also affidavit in cheif-examination has stated that,\nhe has paid an amount of Rs.2,50,000/- to the accused\nby way of cash. if really the complainant had sufficient\nsource of income so as to lend a loan of Rs.2,50,000/- to\nthe accused if really, the complianant had lend a loan of\nRs.2,50,000/- to the accused, then the complainant\ncoudl have produced some documentary prove before\nthe court and get it marked in his evidence. The\npromissory       note,    consideration        receipt   and     loan\ndocuemnts and material documents before the court to\nprove    the    loan     transaction.   because        the   accused\ndisputed       the   availment    to    loan    of   Rs.2,50,000/-\nincluding the cheque in question of legally recoverable\ndebt and thus the burden lies on the complainant to\nprove the source of income so as to lend a loan of\nRs.2,50,000/- to the accused. But the complainant has\nnto produced any documents like pronote, consideration22C.C.No.13199/2015\n\n\n\nreceipt and other loan documents. No explanation as\nsuch forthcoming either in the complaint or in the notice\nor in the affidavit cheif-examination of P.W.1 and at this\ncircumstance, in the absence of such explanation an\nadverse inference has been drawn agaisnt the case made\nout by the complainant.45.     It is pertinent to note that, the provision of\nSEc.269 Scc Income Tax of 1961 provided that, the\npayment of transaction of Rs.20,000/- and more than\nshall be maid through cheque. No doubt the provision of\nN.I. act do not mandate that, the loan transaction as to\nbe made either by way of cheque or by RTGS or By NEFT\nor either by online mode.46. The complainant stated to have made an amount\nof    Rs.2,50,000/-    by   way       of   cahs.   Under      such\ncircumstance as a natural women being the conduct and\nbehaviour the complainant should have secured some\nloan documents like pronote, consideration receipt and\nother loan documents or at least he could have paid the\nloan of Rs.2,50,000/- to the accused either by way of\ncheqeu of by way of RTGS, or by way of NEFT, or by way\nof onlile mode. But he has not doen so. No explanation\nas such either in the complaint or in notice of in affidavit\nor    in   chief-examination.    In    the   absence     of   such23C.C.No.13199/2015\n\n\n\nexplanation an adverse inference has been drawn\nagainst the accused made out by the complainant.47.    On the other hand P.W.1 has stated in his\nevidence that, he do not have any impedements to\nproduce bank stastment or SBI Bank pass book before\nthe court and he do not no the name of the father of the\naccused. When it is suggested to P.W.1 with the name of\nthe father of the accused Ramachandra he has not\nspecifically   denied.   If   really   the   complainant    had\nrequried funds so as to land an amount of Rs.2,50,000/-\nto the accused the complainant could have produce\nsuch documents before the court but he has not doen\nso. On the other hand it is forthcoming in the evidence\nof P.W.1 that he was drawing salary of Rs.8,000/- only\nwhich was used for family expensis and his family is\nassisting of five members and he has fully innocured on\namoutn of Rs.8,000/- to the family expensis. No doubt\nP.W.1 has further stated that, he is drawring slalry of\nRs.42,000/- to 50,000/- per month in year 2014, but\nis ..... documentary evidence is as no use. Inorder to\nsubstantaite that he was drawing salary of Rs.40,000/-\nto 50,000/- in the year 2013, the complainant has not\nproduced any documents before the court. On the other\nhand even according to P.W.1 that he do not have any\ndocuemnts to show that, he was drawing salary of24C.C.No.13199/2015\n\n\n\nRs.40,000/- to Rs.50,000/- per month in the 2013 and\nhe do not have any documents to show that he was\nworking as lorry driver.48.        At one point of time, the P.W.1 has stated that,\nhe has lend an amount of Rs.2,50,000/- from the\naccused on 15.12.2013 but another poin tof time P.W.1\nhas stated the he has lend a loan of Rs.2,50,000/- on\n01.08.2014, but the cheque is dated 01.08.2014. But it\nis not the case of the complainant that he had lend a\nloan       of     Rs.2,50,000/-     to    the   accused   either    on\n01.08.2014 or in the last week of November 2013. So it\nis    crystal       clear   that,   the    complainant    has      kept\nthe .......... before the court exact date of alleged loan. At\nthis circumstance, it is highly unsafe to place realiable\non the evidence of D.W.1 in the absence of cogent\ndocumentry evidence and much reliable cannot be\nplaced on the documents of Ex.P1 to 7.49.         No doubt in his further evidence has stated\nthat, he was the subscriber of chit fund business and\ntaken chit fund amount of Rs.2,00,000/- and paid the\nsame to the accused but it is not the case of the\ncomplaiannt that he was the subscriber of chit fund\nbusiness and taken chit amount of Rs.2,00,000/- at any\npoint of time. If really the complainant was the25C.C.No.13199/2015\n\n\n\nsubscriber of chit fudn business and tkaen chit fund\namount of Rs.2,00,000/- then he coudl have disclose\nthe same either in his notice or in hsi complaint or in his\naffidavit chief-examination, but he has not disclosed the\nsame no explanation as such forth coming in this\nregard. On the other hand D.W.1 has admitted that, he\nhad not have any documents to show that, he was the\nsubscriber of the chit fund business and had taken chit\nfund samount of Rs.2 Laksh at any point of time. In fact\nP.W.1 has filled his ignorence as to that exactly the\nacused joined as driver in BMTC, Bengaluru. And infact\nit is forthcoming the evidence of P.W.1 that he used to\nvisit the house of one Nagaraj and he is good friends\nwith Nagaraj. It is also admtited by P.W.1 that, the\nsignature in Ex.P.1 is in Kannada and the accused used\nto put his signatue in English all these inconsistence\nand also ...........found is evidence of D.W.1 creates the\ndoubt about the alleged loan transaction and also\nissuance of cheque in question for legally recoverable\ndebt. At these circumstance at .... of P.W.1.50.    On appreciation of entair oral and documentary\nevidence on record it is found that, the complainant was\nthe drawer of a truct drawing salary of Rs.8,000/- per\nmonth and he has been maintaining a family of 5\nmembers and he used to earn income of Rs.8,000/- to26C.C.No.13199/2015\n\n\n\nhis family. The complainant had no sufficient source of\nincome so as to lend a loan of Rs.2,50,000/- to the\naccused at any point of time. The complainant has also\nnot produced any documents to show that, he was the\nsubscriber of chit funds business and chit fund amount\nof Rs.2,50,000/- so as to lend a same to the accused.51.   A careful perusal of cheque in question in Ex.P1\ngoes to show that, the signature and the contens of\ncheque are in different language and also they are in\ndifferent columns's as could be seen from the records,\nthe accused used to put his signature in English to his\nstatement and other documents. But the signature on\nEx.P1 is in Kannada and there is no documents to show\nthat, the signature found in Ex.P1 is as that of the\nsignature of the accused. Therefore the defence taken by\nthe accused that one Nagaraj was used to visite his\nhouse and the cheque which was kept on the table was\nmisplaed and the said ininiable to his and thereafter it\nwas filled and failed the same. To be made probable\ndefence with the case made out by the complainant.52.     On oral and docuemntary evidence on record\nit .... or establish as to how an amount of Rs.2,50,000/-\nwas issued as to on 01.08.2014 payable by the accused.\nIt    is   pertinent   to   note    here   that,   according     to27C.C.No.13199/2015\n\n\n\ncomplainant, the accused has approached in the last\nweek of November 2016 and he stated to have availed a\nloan of Rs.2,30,000/- to the accused and on 15.12.2014\nbut the alleged cheque is dated 01.08.2014. As already\nstated the complainant at one point of time has stated\nthat, he has paid loan of Rs.2,50,000/- to the accused\non 01.08.2014 that is on the date of issuance of alleged\ncheque. But anther point of time, the complainant has\nstated that, he has lend loan of Rs.2,50,000/- to the\naccused on 15.12.2013. Therefore the complainant\nought to have establsihed by producing the relevant\ndocuments that the amount mentioned in the cheque\nwas actually due as on the date of acutal cheque dated\non 01.08.2014 and towards the said legally enforceable\ndebt. the accused has issued the cheque in question as\nper Ex.P1. but the complaiannt has not produced any\ndocuements to show that, he has required the funds to\nlend to the accused and the accused has issued chequ\nin question towards legally enforceable debt. In the\nabsence of such documents on record, it could be said\nthat, the accused had issued the cheque in question\ntowards legally enforceable debt. It is pertinent to note\nthat, the complainant has mentioned the address of the\naccsused as Srinivasa V.R. S/o Ramachandra R/o\nDombaradoddi,    Kalluru   village,   Kanakapura    Taluq,28C.C.No.13199/2015\n\n\n\nRamanagara District. The same has been mentioned in\nthe postal cover vide Ex.D6. But it is forth come in the\nevidence on record that the accused is the resident of\nVaddaradoddi. In accordence to substantiate the same,\nthe accused has produced the Aadhaar card and it is\nmarked at Ex.D1. which substantiate the probable\ndefence to the accused and it was not used to him. BE\nthat as it... the cheque in question was not dishonoured\neither for wnat of sufficient funds in the account of\naccused or exciding the arrangemnt. But on the other\nhadn, as could be seen from the docuemnts at Ex.P2,\nthe cheque in question was dishonoured and returned\nunpaid with an endorsement as " Drawer Signature\ndifferes". The complainant has not placed any materials\nto show that, signature foudn in Ex.P1 is as that of the\nsignature of the accused. So it is clear that, the\ncomplainant has not clear the amendeds ofsection 138of the N.I.Act and thereby failed to prove the guilty of the\naccused and therefore the presumption available undersection 118and139of N.I.Act does not come in the vage\nof complainant.53.   Under these circumstance, the argumetns of the\nlearned counsel for the complainant that, the oral and\ndocuementary      evidence    placed   on   record     clealy\nestablsiehs the guilty of the accused for the offence29C.C.No.13199/2015\n\n\n\npunishable undersection 138of the N.I.Act and the\ncomplaiannt has fulfilled all the amended ofsection 138of the N.I.Act. Therefore the presumption is in favour of\nthe complainant and the accused has failed to prove\nprobable defence and accused is liable to pay the cheque\namount is not sustainable under law and therefore\ncannot be accepted.54. But on the other hand, there is some legal\nforce in the submission of the learned counsel for the\naccused that the complainnt has failed to prove that, he\nhas required funds to lend the laon of Rs.2,50,000/- to\nthe accused and also failed to avail loan transaction and\nalso failed to prove the cheque in question was issued\nfor legaly recoverable debt and also the complaiannt\nfailed to prove the service of legal notice and therefore\nthe presumption is not in favour of the complainant and\nthe accused has raised the crual detention and also\nproved the same by adducing oral evidence of D.W.1 and\nalso ellicited the material evidence in the evidence of\nP.W.1 and thereby the accused is not liable to pay any\nthe cheque amount to the complainant and the decision\ncited in this regard and also capable to the present facts\nand circumstance of the case.30C.C.No.13199/201555. Therefore, for the reasons discussed above,\nthis Court is of the considered view that materials placed\non record do not esbalish the guilt against the accused\nfor the offence punishable U/s.138 of N.I.Act. Therefore,\nI hold that the complainant has failed to prove the\ncharges levelled against the accused for the offence\npunishable U/s.138 of N.I.Act. Hence, I answer point\nNo.1 in the Negative.56. Point No.2: In view of my findings on point No.1,\nI proceed to pass the following:-ORD ER\n\n                 The accused is found not\n            guilty for the offence punishable\n            U/s.138 ofNegotiable Instruments\n            Act.Hence, acting U/sec.255(1)of\n            Cr.P.C. the accused is acquitted\n            for   the    offence  punishable\n            U/sec.138of N.I.Act.The bail bond of the accused\n            shall be in force till the appeal\n            period is over as contemplated\n            under the provisions of Sec.437(A)\n            of Cr.P.C.31C.C.No.13199/2015\n\n\n\n(Dictated to the stenographer, transcribed and print out taken by\nhim, verified, corrected and then pronounced by me in the open\nCourt on this the 25th August 2022).(N.M.RAMESHA),\n                       XVI ACMM, Bengaluru City.ANNEXURE1. List of witness/s examined on behalf of the\nComplainant:-P.W.1             : Mr.Manju2. List of documents exhibited on behalf of the\nComplainant:-Ex.P.1            :   Original Cheque.\nEx.P.1(a)         :   Signature of Accused.\nEx.P.2            :   Bank Memo.\nEx.P.3            :   Copy of Legal Notice.\nEx.P.4            :   Postal Receipt.\nEx.P.5            :   Reply.\nEx.P.6            :   Postal Envelop.3. List of witness/s examined on behalf of the\nAccused:-DW.1              : Shri. Srinivasa V.R.4. List of documents exhibited on behalf of the\nAccused:-Ex.D.1            : Aadhar Card.\n\n\n                               (N.M.RAMESHA),\n                              XVI ACMM, Bengaluru City.