Bangalore District Court
K.Usha vs M/S. Sri Raghavendra Constructions on 1 August, 2016
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 1st day of August - 2016
PRESENT: SRI. S.G.SALAGARE, B.Sc., LL.B.,(Spl)
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.42500/2010
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : K.Usha,
W/o.Mahesh Kumar,
Aged about 40 years,
No.340, 2nd Cross,
Sachidanandnagar,
R.R.Nagar, Bengaluru-98.
(Rep. by Sri.Vishnu Hegde, Adv)
V/S
Accused : 1. M/s. Sri Raghavendra Constructions,
By its Proprietor B.N.Prakash
2. B.N.Prakash,
Aged about 46 years,
Both accused Nos.1 and 2 are
R/at "Sriniketan",
#788, 1st Floor, 18th Main,
36th A Cross, Jayanagar 4th T Block,
Bengaluru-41.
(Rep. by Sri.M.K.Venkatramana, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 01.08.2016.
(S.G.SALAGARE)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.42500/2010
JUDGMENT
This complaint is filed by the complainant against the accused Nos.1 and 2 for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as under:
The accused No.1 is proprietary concern represented by the accused No.2. The complainant, her husband and accused No.2 are knew each other. During the month of April, 2008, accused No.2 approached the complainant for hand loan of Rs.10 lakhs for his business purpose and promised to repay the same by the end of December, 2009 and also agreed to pay interest at the rate of 18% per annum. The complainant has arranged and paid an amount of Rs.10 lakhs to accused, at that time the accused had executed On demand pronote and consideration receipt in favour of complainant in presence of witnesses. After lapse of stipulated period, complainant demanded for repayment of the above said loan amount, and the accused in order to discharge his liability has issued two cheques bearing Nos.236562 and 236563, both cheques are dated:08.06.2010 and drawn for Rs.5 lakhs each, both Judgment 3 C.C.42500/2010 cheques drawn on Corporation Bank, N.T.Road Branch, Bengaluru in favour of complainant and assured that the said cheques will be honoured on their presentation.
It is further case of complainant that, on 08.06.2010 she has presented the said cheques through her banker viz., State Bank of Mysore, Bengaluru for collection. On 10.06.2010, the said cheques were returned unpaid for the reasons "Funds Insufficient" in the account maintained by the accused. On 26.06.2010, the complainant brought this fact to the knowledge of accused by issuing demand notice through RPAD as well as Under Certificate of Posting to accused and the said demand notice was duly served upon accused. After receipt of notice the accused has neither paid the cheques amount nor replied the notice. Hence, the complainant has filed the complaint against the accused Nos.1 and 2 for the offence punishable under Section 138 of Negotiable Instruments Act and prayed to punish the accused Nos.1 and 2 with maximum sentence and to award compensation to the complainant.
3. My predecessor after perusing records, took cognizance of offence, and recorded sworn statement, Judgment 4 C.C.42500/2010 ordered to register Criminal Case against the accused Nos.1 and 2 for the offence punishable under Section 138 of Negotiable Instruments Act. The accused Nos.1 and 2 after service of summons put their appearance through their counsel and has been enlarged on bail. Thereafter, the court has recorded the plea of accused and the accused have pleaded not guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4. The complainant in order to prove her case, got examined herself as PW-1 and got marked Seventeen documents at Exs.P1 to P17 and closed her side. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under Section 313 of Cr.P.C., the accused denied all the incriminating evidence available against them. The accused in order to disprove their case accused No.2 got examined himself as DW.1 and one witness as DW.2 and got marked seven documents at Exs.D1 to D7 and closed their side. On perusal of depositions and order sheet it disclose that no document is marked as Ex.D5. Two documents are marked as Ex.D1 viz., Income Tax Judgment 5 C.C.42500/2010 Acknowledgment and Life Insurance List of policy holders who's polices were over due.
5. I have heard the arguments of both the sides and perused the materials placed on record.
6. The following points would arise for my consideration:
1) Whether the complainant proves beyond all reasonable doubt that, she had advanced Rs.10 lakhs hand loan to the accused No.2 and Exs.P2 and P3 - cheques bearing Nos.236562 and 236563, both cheques dated:08.06.2010 for Rs.5 lakhs each, both cheques drawn on Corporation Bank, N.T.Road Branch, Bengaluru are issued in favour of complainant for discharge of the said amount, and on their presentation, cheques came to be dishonoured for the reasons 'Funds Insufficient' and even after service of notice, the accused has failed to repay the amount and thereby accused is guilty of the offence punishable under Section 138 of N.I.Act?
2) What Order?
7. My findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : As per final order, for the following:Judgment 6 C.C.42500/2010
REASONS
8. POINT NO.1: It is alleged that, the accused No.2 had borrowed an amount of Rs.10 lakhs from complainant, and promised to repay the same by the end of December, 2009. After lapse of stipulated period, when the complainant demanded for return of the amount, the accused to discharge their liability has issued two cheques bearing Nos.236562 and 236563, both cheques dated:08.06.2010 for Rs.5 lakhs each, both cheques drawn on Corporation Bank, N.T.Road Branch, Bengaluru in favour of complainant. When said cheques were presented for encashment, same were dishonoured for the reasons 'Funds Insufficient'. Even after issuance of demand notice, accused have not made any arrangement for return of cheques amount. The accused No.2 has denied the accusation made against him.
9. To prove her case, the complainant got examined herself as PW.1 by filing her affidavit in lieu of her examination in chief evidence. In the affidavit, PW.1 has reiterated the averments made in the complaint and in support of her contention; PW.1 has got marked seventeen Judgment 7 C.C.42500/2010 documents. Among them complainant is marked as Ex.P1, two cheques bearing Nos.236562 and 236563, both cheques dated:08.06.2010 for Rs.5 lakhs each are marked as Exs.P2 and P3. The said cheques are drawn on Corporation Bank, N.T. Road Branch, Bengaluru in favour of complainant. The signatures of accused are marked as Ex.P2(a) and P3(a). Exs.P4 and P5 are the Bank Endorsements issued by the Corporation Bank, the contents of Exs.P4 and P5 disclose that, the cheques bearing Nos.236562 & 236563, both cheques are dated:08.06.2010 drawn for Rs.5 lakhs each are dishonoured for the reasons 'Funds Insufficient' in the account maintained by the accused. Ex.P6 is the Demand Notice dated:26.06.2010, the recitals of Ex.P6 disclose that, the complainant has issued this notice to the accused through her counsel. By issuing this notice complainant called upon the accused to repay the cheques amount of Rs.10 lakhs within 15 days from the date of receipt of notice. Ex.P7 is the Postal Receipt, Ex.P8 is the UCP receipt, Ex.P9 is the Postal Acknowledgement Card, Exs.P10 and P11 are the Bank challan counter foils, Ex.P12 is the MICR Returns Clearing issued by the Judgment 8 C.C.42500/2010 Corporation Bank on 10.06.2010, Exs.P13 and P14 are the On Demand Promissory Note and Consideration Receipt executed by the accused in favour of complainant on 12.04.2008, Ex.P15 is the Certified copy of Order Sheet in O.S.No.7586/2006 and Exs.P16 and P17 are the signatures of accused No.2.
10. The complainant counsel has submitted that, accused have not denied the cheques marked at Exs.P2 and P3 and signatures marked at Exs.P2(a) and P3(a). The initial presumption arises under Sections 118(a) and 139 of Negotiable Instruments Act in favour of complainant. Accused have not rebutted the presumptions arisen in favour of complainant, complainant has proved that accused has no sufficient funds in the account maintained by accused No.2 and he has issued Exs.P2 and P3 in favour of complainant knowing that no funds in his account and thereby accused have committed an offence punishable under Section 138 of Negotiable Instruments Act. Per contra the defence counsel argued that, there was no any money transaction between accused and complainant, accused No.2 was not having any financial Judgment 9 C.C.42500/2010 requirement, so as to borrow the hand loan of Rs.10 lakhs from her. Accused has not borrowed an amount of Rs.10 lakhs from the complainant and he has not issued Exs.P2 and P3 cheques in favour of complainant to discharge any legally recoverable debt. Hence, it is prayed to acquit the accused and dismiss the complaint.
11. Accused took defence that, complainant was Insurance Agent of ING Vysya Bank Insurance. Accused daughter was insured under the agency of complainant in the year 2005, but after 2005 after payment of 1st premium amount accused did not continued to pay the premium amount. In the year 2008, complainant and one Narayana.M came to the house of accused and requested him to pay the premium amount of the insurance policy taken in the name of daughter of accused. For repayment of the said amount, accused No.2 has issued two blank signed cheques, one for payment of premium amount and another for payment of penalty amount. Complainant instead of paying the premium and penalty amount, she has misused the cheques and filed this false complaint to obtain wrongful gain. The defence taken by the accused is Judgment 10 C.C.42500/2010 totally denied by the complainant. Accused in support of his case, he got marked Exs.D1 to 4, 6 and 7. Ex.D1 is the Xerox copy of Form No. ITR-2 (Acknowledgment). This document belongs to complainant Usha.K i.e., income tax return of the assessment year 2009-10. Ex.D1 disclose that, the gross total income of Usha.K was Rs.2,16,800/-. Another document again marked as Ex.D1 is list of the policy holders who stood as defaulters in payment of policy premium amount. In the page No.4 policy bearing No.00278529 belongs to Chethan.M.P.Padma, No.126, 28th Cross, 7th Block, Jayanagar, Bengaluru is shown. Admittedly, the said Chethan.M.P.Padma is daughter of accused No.2. Exs.D2, D3 and D4 are the Police endorsements, Ex.D6 is the ING Vysya Life Insurance Bond. Ex.D7 is the copy of letter addressed to the Branch Manager, ING Vysya Life Insurance, Bengaluru. This letter is issued on 25.07.2005 and by issuing said letter accused has undertaken to pay the premium amount on behalf of his daughter.
12. From the perusal of the oral and documentary evidence placed on record, it reveals the case of Judgment 11 C.C.42500/2010 complainant is that accused has borrowed an amount of Rs.10 lakhs from her and promised to repay the amount by the end of December, 2009 and accused has issued Exs.P2 and P3 cheques. This contention of complainant is clearly denied by the accused.
13. In the examination in chief, PW.1 has reiterated the averments made in complaint. It is a specific contention of complainant that, she has paid an amount of Rs.10 lakhs to the accused. In the cross-examination PW.1 has stated that, accused and her husband knew each other. In the month of April, 2008 the financial transaction took place between herself and accused. Accused was borrowed an amount of Rs.10 lakhs from her and agreed to repay the said amount with interest at the rate of 18% per annum and in that aspect no documents were executed between them. PW.1 further stated that, accused had issued On demand promissory note and consideration receipt in her favour. She do not know the name of the witnesses who signed On demand Promissory Note and Consideration Receipt. PW.1 has stated in her deposition dated:04.04.2014 that, she had lost the On demand Judgment 12 C.C.42500/2010 promissory note. PW.1 further stated that, as on the date of lending amount she was in possession of Rs.10 lakhs. PW.1 denied the suggestion of defence counsel that, on the alleged date of lending amount she was not in possession of Rs.10 lakhs. PW.1 stated that: "ºÀt ¤ÃrzÀ ¢£ÁAPÀzÀAzÀÄ PÉøï¤AzÀ §AzÀ ºÀt¢AzÀ ºÀt ¤ÃrgÀÄvÉÛãÉ". PW.1 stated that in the year 2006, she had registered a case against one Mohan Raj and in the said case Mohan Raj has returned Rs.16 lakhs. The said amount was kept in her house from the year 2006-08 and she had given an amount of Rs.10 lakhs out of the amount kept in her house. Accused has denied the contention of complainant and stated that, he has not borrowed Rs.10 lakhs from complainant and he has not issued the cheque Exs.P2 and P3 in favour of complainant for discharging any liability towards the complainant. He has not executed On demand promissory note and consideration receipt as per Exs.P13 and P14 in favour of complainant.
14. It is the specific defence of accused that, his daughter has subscribed ING Vysya Bank Insurance Policy from the complainant who was the Agent of ING Vysya Bank Life Judgment 13 C.C.42500/2010 Insurance in the year 2005. He has paid 1st premium amount, and later he has not paid the premium amount of three years. Complainant and DW.2 - Naranaya.M came and asked him to pay the premium amount of 3 years and penalty for the said period. To pay the premium amount and installments he has issued Exs.P2 and P3 to the complainant. But after receipt of summons of this case he came to know that complainant has misused his two cheques issued towards for the payment of insurance premium and penalty amount of his daughter's insurance policy.
15. Complainant has admitted that, she was working as Agent of ING Vysya Bank Life Insurance and now she has stopped. Complainant has also admitted that, the daughter of accused by name Chetana.M.P.Padma was insured under her agency. This fact his supported by insurance policy premium defaulter list marked at Ex.D1. Accused has produced the Ex.D1 defaulters list and established that the said defaulters were insured under the agency of complainant. It is proved that, accused daughter was not paid the premium amount and she was shown in Judgment 14 C.C.42500/2010 defaulters list. In the said document the penalty required to be paid by the accused daughter is shown. PW.1 denied that, Exs.P2 and P3 are issued towards the payment of premium and penalty amount for the period of three years. PW.1 in the cross-examination has clearly stated that, Exs.P2 and P3 are issued by the accused towards the discharge of his liability of Rs.10 lakhs. DW.2 - Narayana.M has supported the case of accused, and DW.2 has stated in the chief examination that he took the complainant to the house of accused and advised the accused to take insurance policy in the name of his daughter from the complainant. He has issued the insurance policy bond to the accused. After two years he came to know that, accused was not paid premium of two years, and in that aspect he took the complainant to the house of accused. Accused has issued two signed cheques towards the payment of insurance premium and penalty amount and DW.2 identified the Exs.P2 and P3, and stated that accused had given the said cheques to him, and later he gave the said cheques to complainant for payment of premium and penalty amount. DW.2 has further stated that, accused has informed him about the misuse of Judgment 15 C.C.42500/2010 cheques by the complainant after receipt of summons of this case. He enquired the complainant and complainant stated that said cheques are misplaced and after tracing them she will return the cheques. He further stated that, now the relationship between himself and complainant is strained and now he has not enquired the complainant about the cheques issued by the accused. In the cross- examination also DW.2 has supported the case of accused and he denied all the suggestions made to him by the complainant counsel. From the cross-examination portion, it reveals that earlier complainant and DW.2 were well acquainted with each other, and accused was introduced to the complainant by DW.2. This fact is not denied by the complainant. It further discloses that, now the relationship between complainant and DW.2 is strained. But from the evidence of DW.2 it is crystal clear that, Exs.P2 and P3 were issued by the accused to the complainant. Accused and DW.2 have clearly stated that, Exs.P2 and P3 are issued towards the payment of insurance premium and penalty amount. But it is the contention of complainant that, Exs.P2 and P3 are issued for discharge of an amount of Rs.10 lakhs.
Judgment 16 C.C.42500/2010
16. Accused has stated that, he has issued blank signed cheques. In the cross-examination PW.1 has stated that Exs.P2 and P3 filled by herself. She stated Exs.P2 and P3 are filled by her and accused has signed the cheques. In the cross-examination of DW.1 it is suggested by the complainant counsel that, the contents of Exs.P2 and P3 are written by the daughter of accused. Of course this suggestion is denied by DW.1. It is admitted that, accused No.2 is an Engineer. Accused No.2 who is an educated person can easily fill up the cheques and he does not required any help from his daughter or from the complainant to fill up the cheques. It is not the case of complainant that, accused had issued blank signed cheques. It is not the case of complainant that accused was not able to fill up the cheques. Under the circumstances complainant cannot state that cheques were filled by her or by the daughter of accused. When accused knows writing or filling up the cheques, complainant could have got the cheques filled up by the accused himself. Thus the statement made by the PW.1, in her the cross- examination and suggestion made to DW.1 by the complainant counsel creates doubt that cheques were Judgment 17 C.C.42500/2010 issued towards repayment of alleged loan amount of Rs.10 lakhs.
17. Before presenting the complaint, complainant has to comply the provisions of Section 138(b) of Negotiable Instruments Act i.e., complainant has to issue notice to the accused calling upon him to repay the amount. Ex.P7 is the legal notice dtd:26.06.2010, Ex.P7 and P8 are the Postal Receipts and Ex.P9 is the Postal Acknowledgment. Ex.P9 does not bear the signature of accused. It is the contention of accused that he has not received the notice and therefore he could not issue the reply notice. Ex.P9 the postal acknowledgment does not bear the signature of accused. When the postal acknowledgment does not bear the signature of accused, then it cannot be presumed that notice was served upon the accused. Complainant has not taken steps to call the postal authorities to prove that notice was duly served on accused. Thus complainant has failed to establish that he has complied the provisions of Section 138(b) of N.I.Act which is mandatory on the part of complainant.
Judgment 18 C.C.42500/2010
18. Accused has denied the signatures marked on Ex.P13 and P14 and stated he has not executed On demand promissory note and consideration receipt. When the accused denied the execution of On demand promissory note and consideration receipt marked at Exs.P13 and P14, then burden is on complainant to prove the execution of Exs.P13 and P14. Complainant has not examined the witnesses who have signed On demand promissory note and consideration receipt to prove the execution of same. Complainant has not taken steps to prove the signature of accused on Exs.P13 and P14. Complainant has not proved the execution of On demand promissory note and consideration receipt. Further accused has denied the financial capacity of complainant to pay an amount of Rs.10 lakhs. PW.1 has stated that, she had received an amount of Rs.16 lakhs from one Mohan Raj in a Civil Case. To prove this aspect PW.1 has produced order sheet of O.S.No.7586/2006. The order sheet dtd:20.09.2007 disclose that, complainant has received Rs.4 lakhs from the Mohan Raj. The endorsement made by the complainant in the said order sheet disclose that she has received Rs.14 lakhs. In the cross-examination of PW.1, she admitted Judgment 19 C.C.42500/2010 that, she has settled the matter with Mohan Raj in compromise for Rs.4 lakhs. Thus the contention of PW.1 does not support the documentary evidence marked at Ex.P15. Further PW.1 has admitted that, she has furnished the income tax returns. Ex.D1 is the income tax returns acknowledgment belongs to complainant of the assessment year 2009-10. It is shown that the gross total income of complainant is Rs.2,16,800/-. If the gross income of complainant was Rs.2,16,800/- then it cannot be believed that, complainant had capacity to lend an amount of Rs.10 lakhs to the accused in the month of April, 2008. Further PW.1 has admitted that, in the year 2008 she had borrowed hand loan of Rs.10 lakhs from her sister Kanthimathi. When PW.1 has borrowed hand loan, then it cannot be presumed that she was capable of paying the amount of Rs.10 lakhs to the accused. It is not the case of complainant that, she borrowed the hand loan from her sister and paid to the accused. Complainant has not produced any document to show that in the month April 2008 she was in possession of an amount of Rs.10 lakhs and she paid the amount to accused. Complainant has totally failed to prove that she had capacity to lend an Judgment 20 C.C.42500/2010 amount of Rs.10 lakhs to the accused. The evidence placed on record clearly disclose that accused has rebutted the presumptions arisen in favour of complainant. In view of the above said reasons, I hold point No.1 in the Negative.
19. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and surety bond of accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 1st day of August - 2016) (S.G.SALAGARE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : K.Usha List of Exhibits marked on behalf of Complainant:
Ex.P1 : Complaint
Exs.P2 & P3 : Original Cheques (2 Nos.)
Judgment 21 C.C.42500/2010
Exs.P2(a) & P3(a) : Signatures of accused
Exs.P4 & P5 : Bank endorsements
Ex.P6 : Office copy of legal notice
Ex.P7 : Postal Receipt
Ex.P8 : UCP Receipt
Ex.P9 : Postal Acknowledgment Card
Exs.P10 & P11 : Bank challan counter foils
Ex.P12 : Bank Endorsement
Exs.P13 & P14 : On demand promissory note and
Consideration receipt
Exs.P13(a) & 14(a) Signatures of accused
Ex.P15 : CC of order sheet in O.S.No.7586/06
Exs.P16 & P17 : Signatures of accused (Vakalath)
List of Witnesses examined on behalf of the defence:
DW.1 : Prakash.B.M DW.2 : Narayana.M
List of Exhibits marked on behalf of defence:
Ex.D1 : Income Tax Department Acknowledgment Ex.D1 : Life Insurance policy holders list Exs.D2 to D4 : Police Acknowledgments Ex.D6 : ING Vysya Life insurance bond Ex.D7 : Copy of letter dtd:25.07.2005 XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 22 C.C.42500/2010
01.08.2016.
Comp -
Accd -
For Judgment Judgment pronounced in the open court vide separate order.
*****
ORDER
Acting under Section 255(1) of
Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and surety bond of accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.