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Judgment
This is an appeal preferred by the
appellant/complainant being aggrieved by the judgment
and order of acquittal dated 17.10.2014 passed in
C.C.No.11727/2011 by the XIII Addl. Chief Metropolitan
Magistrate at Bengaluru.
The appellant/complainant challenged the
judgment and order of the Court below on the grounds
mentioned in para (a) to (n) in the memorandum of
appeal and he has challenged the legality and
correctness of the said judgment and order of the Court
below.
By the judgment and order of acquittal
passed by the Court below, the respondent/accused has
been acquitted for the alleged offence punishable under
Section 138 of the N.I. Act.
Brief facts of the case of the complainant
before trial Court, is that he filed a private complaint,
which was ultimately registered as C.C.No.11727/2011
with the allegations that the accused and his brother
Umesh approached the complainant in the last week of
May, 2010 and requested for hand loan of
Rs.5,50,000/- that the same is required to meet the
marriage expenses of their cousin sister and promised
to repay the same within six months and for that they
are ready to execute On Demand Promissory Note
Agreement on stamp paper till execution as security for
the prompt repayment of the said loan. Besides accused
also promised to issue post-dated cheque on Vijaya
Bank, Malleshwaram Branch, with the authority to the
complainant to fill up his name, the loan amount both
in words and in figures including date. Taking into
consideration the relationship of the complainant with
accused and his brother and believing their words and
promise held out by the accused and having received
from the accused the duly executed On Demand
Promissory Note Agreement on stamp paper, besides
receiving blank cheque in their favour drawn on Vijaya
Bank, Malleshwaram Branch, Bengaluru bearing
No.067425 dated 02.12.2010 for Rs.5,50,000/-, the
complainant gave the hand loan in a sum of
Rs.5,50,000/- to the accused.
The further averments in the private
complaint goes to show that the accused executed On
Demand Promissory Note Agreement on stamp paper
given by way of security for due performance of the
prompt repayment of the aforesaid hand loan taken and
whereas the aforesaid post-dated cheque was given by
the accused. The further allegation made in the
complaint is that when the cheque was presented for
encashment, it was dishonoured with the endorsement
of the bank that "funds insufficient". The further case
is that subsequently, the complainant has issued legal
notice to the three addresses of the accused persons
and two notices were returned as per the shara of the
postal authority "No such person in the said address"
and one notice was returned as "not claimed". Hence,
the case came to be filed before the trial Court. The
accused appeared before the trial Court and has denied
the case of the complainant. Then, the complainant
examined himself and three witnesses in support of his
case and he has also marked documents as per Ex.P1 -
P18. On the side of the accused, two witnesses were
examined as DW1 and DW2 and also produced
documents Ex.D1 to D9.
After hearing arguments on both the sides,
ultimately, the trial Court was of the opinion that
complainant failed to prove his case. Accordingly,
acquitted the respondent/accused for the said offence.
Being aggrieved by the same, the appellant is before this
Court in this appeal.
Heard the arguments of the learned counsel
appearing for the appellant/complainant and also the
learned counsel for the respondent/accused.
The learned counsel appearing for the
appellant/complainant made the submission that the
issuance of the cheque and the signature are not in
dispute. But, the contention of the other side is that no
such amount was borrowed nor it was required to
perform the marriage of cousin sister of the accused
persons. Learned counsel submitted that whenever the
cheque is issued, the signature on the said instrument
has to be proved and the said burden is on the accused
person. It is also submitted by the learned counsel that
there is no transaction in favour of the complainant as
contemplated under Sections'' 118 and 139 of the N.I
Act regarding passing of the consideration and the
cheque issued is in discharge of the existing debt. The
counsel made the submission that so far as accused is
concerned, neither he replied to the notice nor he has
entered into the witness box during the course of the
trial to establish his defence regarding the
memorandum of understanding is concerned. It is the
contention of the learned counsel appearing for the
complainant/appellant that it is in between the
complainant and Umesh, brother of the accused and it
is not in between the complainant and the respondent/
accused Lokesh. He also made the submission that even
looking to the oral evidence of the parties, the cross
examination of witnesses DW1 and DW2 clearly goes to
show that the said cheques are not in connection with
the milk dairy business but, it is in respect of discharge
of loan amount borrowed by the accused persons.
Counsel submitted that so far as evidence of PW2 and
PW3 is concerned, it was not at all discussed in the
judgment of the Court below and even the Court has not
at all referred to the documents Ex.P1 to P18 produced
by the complainant before the trial Court. Counsel
submitted that when the oral evidence of DW1
Sri.H.B. Shakregowda was referred, it was believed that
the amount was not required to perform the marriage of
his daughter. The trial Court ought to have considered
the oral evidence adduced on the side of the
complainant also, which is not done in this case.
Regarding Ex.D2 is concerned, learned counsel made
the submission, that he has admitted the signature on
the said document. But looking into his oral evidence,
he has denied the contentions of the said document
Ex.D2. Therefore, only on admission of his signature on
the said document, the trial Court is not right in its
findings to come to the conclusion that the cheque is in
respect of the milk dairy business furnished as a
security and it is not in discharge of the alleged loan
transaction as contended by the complainant. Learned
counsel also made the submission that the oral as well
as documentary evidence adduced by the parties were
not at all referred to by the Court in detail. Without
considering this material, the lower court wrongly
proceeded to hold that the complainant has not proved
his case beyond all reasonable doubt. Hence, he
submitted that the judgment and order of acquittal
passed by the Court below is not in accordance with the
materials placed on record. Hence, he submitted to
allow the appeal and to set aside the judgment and
order of acquittal passed by the Court below and to
convict the respondent/accused for the offence
punishable under Section 138 of N.I Act as prayed for in
the private complaint.
Per contra, the learned counsel for the
respondent/accused during the course of his argument
made the submission that the accused persons not
entered into the witness box is not vital to the case of
the accused. He made the submission that in so far as
oral evidence is concerned, he held out his case by way
of cross-examination of the witness on the side of the
complainant. Counsel submitted that while going
through the document Ex.D2 wherein the complainant
admitted the signature on the said document, which
was confronted to him during the course of cross-
examination itself goes to show that the cheque was
issued in connection with the milk dairy business and it
is not in respect of discharge of the alleged loan
transaction. He also made the submission that when
the complainant has admitted his signature on the
document Ex.D2, it is for him to explain why he put his
signature without knowing the contents of the
document. He also submitted that when the cross-
examination of DW1 itself establishes the defence of the
accused persons, examination of the accused was not
necessary during the course of the trial. Hence, he
made the submission that lower Court has rightly
considered the entire material aspects on record and
rightly came to the conclusion in holding that the
complainant has not proved his case beyond all
reasonable doubt. In support of his contention, learned
counsel appearing for the respondent/accused relied
upon the decisions filed along with the Memo dated
06.12.2017, which are totally 7 in number. Lastly, he 12
made the submission that there is no merit in this
appeal and the same is to be rejected.
I have perused the grounds urged in the
memorandum of appeal, judgment and order of
acquittal passed by the Court below, oral evidence of the
parties adduced before the trial Court by both the sides
and the documents produced by the parties, so also
considered the oral submission of the learned counsel
on both the sides, which is referred above and the
decisions relied upon by the learned counsel appearing
for the respondent/accused in support of his
contentions.
Looking to the judgment of the Court below,
the Court below was little confused regarding the
examination of witnesses on the side of the defence.
Though it is an admitted fact that the accused-Lokesh
has not at all entered into the witness box, but in the
judgment at page No.8, it is observed by the Court
below that "on the other hand, the PW1 has not
disputed with respect to signature. But on perusal of
the same, it appear that Ex.P13 and P14 have been
executed by accused No.1 Lokesh and Ex.D5 has been
signed by accused No.2 B.Umesh". Regarding this
observation of the Court below that there is only one
accused in the case i.e. Lokesh and there is no 2nd
accused by name B.Umesh in this case, the observation
made by the Court below regarding B.Umesh as
accused No.2 in the case is not correct. On page No.10
also, it is observed by the Court below that "on the other
hand, as per the specific case made out by the
complainant, the DW1, who is none other than the
brother of the accused, he himself has been examined
as DW1 and the accused has been examined as DW2".
This itself clearly goes to show that there is no
application of mind by the Court below with regard to
the materials placed and who has been examined in the
case. When Lokesh-accused has not entered into the
witness box, question of making the observation that
accused has been examined as DW2 does not arise at
all. Therefore, to that extent, learned counsel appearing
for the appellant/complainant is justified in making the
submission that the trial Court has not properly
considered the materials placed on record, both oral
and documentary. Apart from that, looking to the
judgment of the Court below, nowhere it has discussed
about the documents produced by the complainant at
Ex.P1 to P18. Even with regard to the oral evidence of
PW2 and PW3 are concerned, the Court has not at all
touched their oral evidence. Only on the basis of the
evidence of PW1-complainant, the Court has arrived at
certain conclusion. It is the definite case of the
complainant that he paid the money of Rs.5,50,000/- in
the presence of the witnesses PW2 and PW3. In support
of that, he examined these two witnesses before the
Court. Whether the case of the complainant is believed
or not, whether the oral evidence of two witnesses PW2
and PW3 is believed or not, the Court has not made any
such discussion in the judgment arrived at by it. Even
with regard to other documents are concerned on the
side of the defence also goes to show that it is the main
contention of the accused person that he need not
examine himself before the Court in view of the
admission made by the complainant itself in the
document Ex.D2. Learned counsel for the respondent/
accused during the course of the argument drew the
attention of this Court to the document Ex.D2 before
this Court. Even with regard to that in entire judgment,
there is no reference and what is the relevancy of the
said document Ex.D2 is also not discussed. Regarding
the other documents are concerned i.e., Memorandum
of Understanding as per Ex.D5 and P18 are concerned,
there is no proper discussion by the Court below.
Therefore, looking to the judgment and order of the
Court below, it is without referring to each and every
aspect of the matter produced by the parties before the
Court below. Looking to these aspects of the matter, I
am of the opinion that matter requires remand of the
case to the lower court, with a direction to consider
entire materials both oral and documentary on both
sides and dispose of the matter afresh giving liberty to
both the sides for producing the additional evidence, if
any, both oral and documentary and then to dispose of
the matter to do substantial justice to both the parties
in the case.
Hence, the appeal is allowed. The judgment
and order of acquittal passed by the Court below, which
is challenged in this appeal is hereby set aside. Matter
is remanded back to the court below, with a direction to
consider all the materials oral as well as documentary
produced by both sides and give an opportunity to both
sides to adduce additional evidence, if any, either oral or
documentary, then to dispose of the matter afresh in
accordance with law. In so far as the merits of the case
is concerned, the Court has not expressed any opinion
and trial Court should not be influenced by observation
made in this judgment and it has to independently hear
the matter afresh and dispose of the same in
accordance with law. Since the matter is of the year
2011 and since the learned counsel on both sides are
present before the Court, both parties are directed to
appear before the concerned Court on 06.01.2018. The
concerned trial court need not issue notice to either the
complainant or the accused persons.