Bangalore District Court
Sri.R.Lokesh Reddy vs Rajarathnam on 22 January, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 22nd day of January 2015
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C No. 3276/2009
Complainant : Sri.R.Lokesh Reddy,
S/o. Ramaiah,
Aged about 50 years,
R/at Konanakunte Cross,
Canara Bank Road,
Bangalore-560062.
(By Sri.K.M.Nagaraja Reddy, Adv.)
Accused : Rajarathnam,
Father's name not known to
the complainant,
Aged about 45 years,
R/at No.69, 4th cross,
Near Sarvodaya School,
Gokul Nagar,
Doddakallasandra,
Bangalore-560062.
(By Sri.V.D.Raviraj, Adv.)
Date of Institution : 30.12.2008.
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is Acquitted.
Date of Order : 22.01.2015.
2 C.C.No.3276/2009
The complainant filed the private complaint u/s 200 of
Cr.P.C alleging that, the accused person has committed an
offence punishable u/s 138 of N.I.Act.
2. As per Ex.P7 complaint, the complainant contended
that, accused is the family friend to the complainant known to
each other since from several years. Accused has borrowed
handloan of Rs.5 lakhs on 10.07.2008 from the complainant for
his financial stringencies and personal necessities and to
improve his business and also agreed to return the said amount
within 3 months. After lapse of 3 months, the complainant
demanded the accused to return the said handloan on several
occasions. At last, the accused has issued a cheque bearing
No.450189 dated 17.10.2008 for Rs.5 lakhs drawn on Karur
Vysya Bank Ltd., ISRO Layout, Bangalore. The accused
promised the complainant that, the said cheque will be
honoured after its presentation. Accordingly, the complainant
presented the said cheque through his bankers Canara Bank,
Konanakunte Cross branch, Bangalore, but the said cheque
returned with unpaid endorsement to that effect ''account
closed'. Thereafter, the complainant got issued legal notice on
12.11.2008 by RPAD and COP. Both notices sent were duly
served on the accused. The accused did not reply or comply the
notice. The accused intentionally closed his account with an
intention to cheat the complainant. Hence, the accused has
3 C.C.No.3276/2009
committed an offence punishable u/s 138 of NI Act and punish
the accused in accordance with law in the interest of justice and
equity.
3. After presenting this case, this court has taken
cognizance of the offence and after recording the sworn
statement of the complainant's side, this court registered the
criminal case against the accused alleging that, he has
committed an offence punishable u/s 138 of N.I.Act. Summons
issued to the accused. The same is served upon the accused.
The accused appeared through his counsel, enlarged on bail and
he denied the entire case of the complainant at the time of
recording his plea of accusation and case to be tried.
4. In support of the case of the complainant, he examined
himself as PW.1 and got marked Ex.P1 to P7 and this PW.1 has
been fully cross-examined by the accused counsel and thus, the
complainant closed his side evidence.
5. Thereafter, the statement of accused u/s 313 Cr.P.C is
recorded, in which, he totally denied the entire case of the
complainant. In support of the denial of the case of the accused,
at the time of the cross-examination of PW.1, got marked Ex.D1
to D3 and the accused laid his evidence as DW.1 and got
marked Ex.D4. this DW.1 has been fully cross-examined by the
complainant counsel and thus, he closed his side evidence.
4 C.C.No.3276/2009
6. I have heard the argument of both side counsels. The
complainant counsel in his arguments contended that, accused
failed to give rebuttable evidence to the case of complainant.
The complainant has proved the alleged guilty of the accused
beyond all reasonable doubt and in support of his contention
relied on the decision reported in 2010 (2) DCR 138 (Siddappa
vs. K.Nanjappa) and prays to convict the accused in accordance
with law.
7. In support of the case of the accused, the learned
counsel also contended that, the complainant has not
approached this court with clean hand. The alleged cheque in
question is issued as security for the purpose of chit transaction
taken between the complainant and accused and the alleged
cheque in question has been misused by the complainant and
hence, the complainant failed to prove the alleged guilty of the
accused and hence, accused is entitled for acquittal and in
support of his contention, he relied on the following decisions:
1) AIR (SC) 2003 182 (C.Antony vs. K.G.Raghavan
Nair)
2) AIR (SCW) 2006 4652 (M.S.Narayana Menon
alias Mani vs. State of Kerala)
3) AIR (SCW) 2008 738 (Krishna Janardhan Bhat
vs. Dattatraya G.Hegde)
5 C.C.No.3276/2009
8. On the basis of the aforesaid facts and circumstances,
the following points arise for my consideration:
1) Whether the complainant proves that, beyond
all reasonable doubt for repayment of the
loan advanced by the complainant, the
accused issued a cheque bearing No.450189
dated 17.10.2008 for Rs.5 lakhs drawn on
Karur Vysya Bank Ltd., ISRO Layout,
Bangalore, the same is dishonoured due to
'account closed' and inspite of issuance of
legal notice, the accused did not comply or
reply to the notice and thus, he has
committed an offence punishable u/s 138 of
N.I.Act?
2) What Order?
9. My answer to the above points are as follows:
1) In the Negative,
2) As per final Order,
For the following:
REASONS
10. POINT NO.1: It is the specific case of the complainant
that, the accused borrowed handloan of Rs.5 lakhs from him on
10.07.2008 for his financial stringencies and to improve his
business and agreed to return the same within 3 months. After
lapse of 3 months, issued cheque in question, the same is
dishonoured due to 'account closed'. After issuance of legal
notice, the same is duly served to the accused, he did not choose
to reply or comply the notice and thus, he has committed an
offence punishable u/s 138 of NI Act. On the other hand, the
accused taken a contention that, the complainant running chit
6 C.C.No.3276/2009
transaction. This accused is also one of the member in the chit
transaction in the year 1999, at that time, the complainant
obtained signed blank cheques as security. Among the several
cheques received from the members of the chit transaction and
after completion of chit transaction, the complainant demanded
more interest from the accused, the accused did not pay the
same and hence, he misused the blank cheques and filled the
same and filed this case. More so, one Premleela lodged the
complaint against the complainant for misusing of blank
cheques and other on demand pronote, stamp paper, for that,
the police have registered the case against the complainant and
after investigation, they submitted chargesheet. These things
clearly establish from the documents at Ex.D1 to D4. Hence,
accused has given rebuttable evidence to the case of
complainant and accused is entitled for acquittal in accordance
with law.
11. In order to prove the case of the complainant, the
complainant adduced his oral evidence by way of affidavit as
PW.1, in which he has reiterated the complaint contention and
got marked Ex.P1 cheque alleged to be issued by the accused
and identified the signature of the accused as Ex.P1(a). This
issuance of cheque for discharge of legal liability has been
disputed by the accused stating that, the alleged cheque is
issued to the complainant in a blank form at the time of chit
7 C.C.No.3276/2009
transaction as a security and the same has been misused by the
complainant etc. In this regard, on perusal of the alleged
cheque in question, the written contents and signature found on
the cheque are in different ink and the alleged written contents
on the cheque might have been filled by the complainant at the
time of presenting the cheque into the bank. Further got
marked Ex.P2 is the endorsement issued by the bankers stating
that, Ex.P1 cheque is dishonoured due to 'account closed'. But,
when the account has been closed, for that, the complainant has
not examined the concerned bank Manager to support his case.
Because, the accused has denied the issuance of cheque and
also closure of his bank account. Further got marked Ex.P3 is
the copy of legal notice. The notice has been sent to the accused
as per Ex.P4 and P5 are the RPAD receipt and COP receipt. The
said notice duly served to the accused as per Ex.P6 is the postal
acknowledgment, but the accused did not reply or comply the
notice. Ex.P7 is the complaint is under dispute.
12. The accused has denied the entire case of the
complainant. In support of his denial, he laid his oral evidence
as DW.1, in which, he has stated that, both the complainant
and accused are residing in the same road, the complainant
made a chit transaction in the year 1999, at that time, this
accused is also subscribed one chit amounting to Rs.3,000/- per
month and several members also participated in the chit
8 C.C.No.3276/2009
transaction. At the time of running chit transaction, the
complainant obtained cheques from the members with except
the signature in a blank form and he admitted that, Ex.P1
cheque is belongs to his bank account and the signature found
on the cheque is belongs to him. He has not made any
transaction with the bankers, hence bankers have closed his
bank account in the year 2005. But, he received the legal notice
from the complainant for dishonour of cheque in the year 2008
and he has not given any reply, because he has not issued the
said cheque for discharge of any legal liability, but the
complainant misused this cheque and also he lodged several
cheque bounce cases and cheating many members of the chit
transaction. At that time, one Premleela lodged the complaint
against the complainant before Subramanyapura police, the
police have registered the FIR against the complainant as per
Ex.D4 and after investigation, they have submitted chargesheet
as per Ex.D2 and before the police, the complainant has given
statement as per Ex.D3 and at the time of investigation, the
police have seized several signed blank cheques and stamp
paper, which is clearly discloses from the mahazar drawn by the
police. As per the chief-examination of DW.1, the accused
counsel cross-examined the PW.1. At the time of cross-
examination, he taken a contention as per the chief-examination
of DW.1 and got marked Ex.D1 to D3. In order to appreciate the
defence taken by the accused at the time of cross-examination of
9 C.C.No.3276/2009
PW.1 at page No.6, the relevant portion is in Kannada reads as
follows:
£Á£ÀÄ §rØ ªÀåªÀºÁgÀ £ÀqɸÀÄwÛzÉÝ JAzÀÄ ºÉý ¥ÉÇðøï£ÀªÀgÀÄ
PÉøÀÄ ªÀiÁrzÀÝgÀÄ JAzÀgÉ ¸Àj. D jÃw PÉøÀÄ ªÀiÁrzÁUÀ
¥ÉÇðøï£ÀªÀgÀÄ £ÀªÀÄä ªÀÄ£ÉAiÀÄ£ÀÄß ¸ÀZïð ªÀiÁr ªÀÄ£ÉAiÀÄ°èzÀÝ
¸À» ªÀiÁrzÀ SÁ° ZÉPïUÀ¼À£ÀÄß ZÁ¥Á PÁUÀzÀUÀ¼À£ÀÄß
ªÀ±À¥Àr¹PÉÆAqÀgÀÄ JAzÀgÉ ¸Àj. £Á£ÀÄ F jÃw ªÉÆøÀ
ªÀiÁqÀÄwÛzÉÝãÉAzÀÄ ºÉë £À£Àß ªÉÄÃ¯É ZÁeïð ²Ãmï ºÁQzÀÝgÀÄ
JAzÀgÉ ¸Àj. £Á£ÀÄ aÃn ªÀåªÀºÁgÀ ªÀÄvÀÄÛ «ÄÃlgï §rØ
ªÀåªÀºÁgÀ ªÀiÁqÀÄwÛzÉÝ JAzÀgÉ ¸ÀļÀÄî. ¥ÉÇðøï£ÀªÀgÀÄ £ÀªÀÄä
ªÀÄ£ÉAiÀÄ£ÀÄß ¸ÀZïð ªÀiÁr §gÉzÀ ¹Ãdgï ªÀiÁdgïUÉ ¸À»
ªÀiÁrzÉÝãÉAzÀgÉ ¸Àj.
13. And, he admitted that, the seizure mahazar drawn by
the police on 02.07.2011 in C.C.No.9212/2012 as per Ex.D1
and also he admitted that, the police have submitted
chargesheet as per Ex.D2 and further, in his cross-examination,
he admitted that, he given statement before the police as per
Ex.D3, but he denied that, he made chit transaction, at that
time, he obtained several cheques from the members of the chit
transaction except in blank form and he denied that, himself
has filled up the cheque in question and filed this case. Further
he has stated that, about 7.30 in the morning, he went to the
accused house for asking for repayment of the loan amount, for
that, the accused issued cheque in question and told that, after
3 months present the cheque for collection, the same will be
honoured etc., and the contents of the cheque has been written
by one boy and he do not know who is that boy and he do not
10 C.C.No.3276/2009
know the contents and signature found on the cheque are in
different ink etc. In view of the cross-examination of PW.1,
through him got marked Ex.D1 to D3, which clearly support the
case of accused to show that, complainant has misused the
cheque in question and filed this case etc.
14. In order to disprove the defence taken by the accused,
the complainant counsel cross-examined the DW.1. In the
cross-examination he tried to elicit that, in order to show he was
one of the members to the chit transaction with the
complainant, he has not produced any documents and also he
has not made any effort to take action against the complainant
for misusing of the cheque and he denied that, the complainant
has not made any chit transaction etc. Except denial of the case
of the accused, the complainant failed to prove that, he given
huge amount of Rs.5 lakhs to the accused as handloan by way
of cash. Moreso, he admitted that, the complainant is doing
money lending business, but he has not shown the amount
given to the accused in his business and also he has not shown
in his Income Tax return during the year 2008 about advancing
of the amount to the accused etc. On the basis of cross-
examination of PW.1 coupled with the documentary evidence,
the complainant failed to prove the alleged guilty of the accused
beyond all reasonable doubt. The accused has given rebuttable
evidence to the case of complainant by producing cogent and
11 C.C.No.3276/2009
convincing evidence. The complainant failed to give contrary
evidence to the defence taken by the accused, hence the
complainant has not approached this court with clean hand.
15. In support of the case of complainant, the complainant
counsel argued that, accused failed to give rebuttable evidence
to the case of complainant. The complainant has proved the
alleged guilty of the accused beyond all reasonable doubt and
hence, the accused may be conviction and in support of his
contention relied on the decision reported in 2010 (2) DCR 138
(Siddappa vs. K.Nanjappa), in which it is held that, "For the
offence under Section 138 of N.I.Act burden of proof lies upon
complainant to establish transaction between parties and cheque
was issued in this regard." But, in this case, the complainant
failed to prove that the accused has issued the cheque for
discharge of legal liability. Hence, the citation relied by the
complainant counsel does not attract the offence punishable u/s
138 of NI Act as he has not fulfilled all the ingredients.
16.In support of the case of the accused, the learned
counsel also contended that, the complainant has not
approached this court with clean hand. The alleged cheque in
question is issued as security for the purpose of chit transaction
taken between the complainant and accused and the alleged
cheque in question has been misused by the complainant and
hence, the complainant failed to prove the alleged guilty of the
12 C.C.No.3276/2009
accused and hence, accused is entitled for acquittal and in
support of his contention, he relied on the following decisions:
1) AIR (SC) 2003 182 (C.Antony vs. K.G.Raghavan
Nair)
"Appeal against acquittal-Power of appellate
court-It has full power to reappreciate evidence-
But without coming to definite conclusion that
findings given by trial Court are perverse-It
cannot substitute the findings of trial Court by
taking a totally different perspective - Complaint
of dishonour of cheque - Dismissed by trial
court for want of proof of advancement of money
by complainant-High Court without holding that
finding of trial Court is perverse and on totally
different perspective converting acquittal into
conviction-Order unsustainable."
2) AIR (SCW) 2006 4652 (M.S.Narayana Menon
alias Mani vs. State of Kerala)
"Dishonour of cheque-Presumption as to-
Rebuttal of-Accused carrying on transactions in
shares through respondent in Stock Exchange
allegedly issued cheque for discharge of debt
which was dishonoured - Said liability by way of
debt arose in terms of transactions -
Discrepancies found in book of accounts
maintained by respondent for proving said
transactions - Defence of accused that cheque
was issued for purpose of discounting appears to
be probable - Accused discharging his initial
burden - Failure on part of respondent to
discharge burden shifted to him - Conviction of
accused, set aside."
3) AIR (SCW) 2008 738 (Krishna Janardhan Bhat
vs. Dattatraya G.Hegde)
"Presumption under Section 139 merely raises
presumption in favour of holder of cheque that
same has been issued for discharge of any debt
or other liability-Existence of legally recoverable
debt-Is not a matter of presumption under
S.139"
13 C.C.No.3276/2009
On the basis of aforesaid citations coupled with the
documentary evidence produced by the accused, accused has
given rebuttable evidence to the case of complainant. Hence, he
is entitled for acquittal. Therefore, for all these reasons, I
answer point No.1 in the Negative.
17. POINT NO.2: For the above said reasons, I proceed to
pass the following:
ORDER
Acting u/s 255(1) of Cr.P.C., the accused is acquitted from the alleged offence punishable u/s 138 of N.I.Act.
Accused is set at liberty and his bail bond and surety bond shall stand cancelled.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 22nd day of January 2015) (NAGARAJEGOWDA.D) XXII Addl. Chief Metropolitan Magistrate, Bangalore City.
ANNEXURE Witnesses examined for the Complainant:
PW.1 R.Lokesh Reddy Witness examined for the accused:
DW.1 Rajarathnam List of Documents marked for the Complainant:
Ex.P1 Cheque
Ex.P1(a) Signature of accused
Ex.P2 Endorsement
14 C.C.No.3276/2009
Ex.P3 Copy of legal notice
Ex.P4 & 5 Postal receipts Ex.P6 Acknowledgment Ex.P7 Complaint List of Documents marked for the accused:
Ex.D1 Mahazar
Ex.D2 Chargesheet
Ex.D3 Statement
Ex.D4 FIR
XXII ACMM, Bangalore.