Bangalore District Court
Sri. G. H. Shivakumaraswamy vs Mr. Basanthi @ Basappa on 12 February, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 12th day of February 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. 17980/2012
Complainant : Sri. G. H. Shivakumaraswamy,
S/o. Late Honnappa,
Aged about 46 years,
R/at No.47, HDFC ATM
Building, Saraswathi Nagar,
Nagarbhavi Main road
Bangalore.40,
(By Sri. S. Yathirkaj. Adv.)
Accused : Mr. Basanthi @ Basappa,
S/o.Late Channabasavaiah,
Aged about 28 years, R/at.
Donakuppe village,
Hagalukote Post,
Magadi Taluk,
Ramanagara Dist.
And also at
C/o. Amarnath,
No.168,"Mahadeshwara
NIlaya' 3rd Cross,
Priyadharshini Layout,
Nagarabhavi Main road,
Bengaluru.
(By C.C.Narayana, Adv.)
2 C.C.No.17980/2012
Date of Institution : 29/06/2012
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 : 12.02.2015.
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.P12 complaint, the complainant contended
that, the complainant and accused was known to each other,
the accused had borrowed hand loan of Rs. 3,00,000/- from the
complainant in the month of November 2011 and repaid the said
loan amount he had issued 3 (Three) post dated cheques,
bearing No. 112953, dt: 21/5/2012 for a sum of Rs. 1,00,000/-
and cheque bearing No. 112954, dt: 21/5/2012 for a sum of
Rs. 1,00,000/- and another cheque bearing No. 112955, dt:
21/5/2012 for a sum of Rs. 1,00,000/- in total Rs. 3,00,000/-
all the three cheques drawn on State Bank of India, Magadi road
Branch, Bangalore and instructed the complainant to present
the said cheques for encashment and he has undertaken to
3 C.C.No.17980/2012
honour the cheques. As per the instructions of the accused, the
complainant presented the said cheques for encashment,
through his Bankers i.e., Janatha Sewva Co-operative Bank
Ltd., Moodalapalya Branch, Bangalore on 21/5/2012, but the
said cheques returned unpaid with an endorsement 'Insufficient
funds' as per memo dt: 23/5/2012. Thereafterwards the
complainant got issued legal notice on 31/5/2012 calling upon
the accused repay the loan amount through RPAD, the notice
has been served on the accused on 1/6/2012 and 6/6/2012
respectively. After receiving the notice the accused did not reply
or comply the notice and thus, the accused has committed an
offence punishable under Sec. 138 of N.I. Act and punish the
accused in accordance with law by awarding compensation to
complainant 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
4 C.C.No.17980/2012
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, the
complainant adduced his oral evidence as PW.1 and got marked
Ex.P1 to P12 and at the time of cross-examination of DW-1 got
marked Ex.P-13 and this PW-1 has been fully cross-examined
by the accused counsel and thus, complainant closed his side
evidence.
5. Thereafter, the accused person examined under Sec.
313 Cr.P.C, in which, he totally denied the entire case of
complainant. Thereafter in support of denial case of accused, he
adduced his oral evidence as DW-1 and this DW-1 has been
fully cross-examined by the complainant counsel and thus,
accused closed his side evidence.
6. I have heard arguments of both the complainant and
accused counsel. On behalf of complainant the complainant
counsel relied on the documents marked at Ex.P-1 to P12 and
prays to convict the accused in accordance with law and on
behalf of accused, the accused counsel relied on the decision
reported in AIR 2003 Supreme court 182 and prays to acquit
the accused in accordance with law.
5 C.C.No.17980/2012
7. 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 3 (Three) post dated cheques,
bearing No. 112953, dt: 21/5/2012 for a sum
of Rs. 1,00,000/- and cheque bearing No.
112954, dt: 21/5/2012 for a sum of Rs.
1,00,000/- and another cheque bearing No.
112955, dt: 21/5/2012 for a sum of Rs.
1,00,000/- in total Rs. 3,00,000/- all the
three cheques drawn on State Bank of India,
Magadi road Branch, Bangalore in favour of
complainant. The same were dishonoured
due to 'Insufficient funds' and in spite of
issuance of legal notice, the accused did not
reply or comply to the notice and thus, he
has committed an offence punishable u/s
138 of N.I.Act?
2) What Order?
8. My answer to the above points are as follows:
1) In the Negative.
2) As per final Order,
For the following:
REASONS
9. POINT NO.1: In support of the case of the
complainant, he adduced his oral evidence as PW.1 filed by way
of affidavit, in which, he reiterated the complaint contention
and got marked Ex. P1, Ex.P3 and P5 are the 3 (Three) cheques
6 C.C.No.17980/2012
and identified the signatures of the accused as Ex. P-1.a. Ex. P-
3.a. and Ex. P-5.a. This issuance of 3 cheques in favour of
complainant has been disputed by the accused. Further got
marked Ex.P-2, Ex. P-4, and Ex.P6 are the endorsements issued
by the Banker stating that Ex. P-1, P-3 and P-5 cheques
dishonoured due to 'Insufficient funds'. Ex.P-7 is the copy of
legal notice, this notice has been sent to the accused through
RPAD as per Ex.P-8 and Ex.P-9 are the RPAD receipts, served on
the accused as per Ex.P-10 and P11 postal acknowledgement
But inspite of service of legal notice the accused did not chose to
give any reply or comply with notice. Ex. P-12 is the complaint
under dispute. Ex.P-13 is the Shop rent agreement to show that
the source of income to the complainant.
10. The accused has denied the entire case of
complainant, at the time of recording plea of accusation and also
at the time of recording 313 Cr.P.C statement. In support of his
case, the accused counsel cross-examined PW-1. In the cross-
examination he elicited that the accused is the relative of
complainant and in the year 2011 he doing business of selling
Pooja Articles along with this business he is doing
advancement of loan on vehicles. On 4/10/2011 the accused
asked for Rs. 3,00,000/- as hand loan, these things are not
stated in his complaint or legal notice. During the year 2011 he
7 C.C.No.17980/2012
getting an income of Rs. 8-9 lakhs. For that he has not
produced any documentary evidence and also he has not
produced any Bank pass book to show that he has got sufficient
source of income, except he has stated that Rs. 3 lakhs is kept
in his house and the same amount has been given to accused in
presence of his mother and he has no objection to give the said
amount by way of cheque, but said amount was with him in his
home and hence, he has paid the same to accused and he has
not obtained any documentary evidence from the accused, at
that time for advancement of loan amount, as the accused is
his relative. On the date of advancement of loan amount, the
accused issued 3 post dated cheques, but he has not asked for
single cheque for its repayment. Further he admitted that on
the disputed cheques, the contents and signatures are in
different ink, but he has stated that the accused himself has
wrote the contents of the cheque and he has not asked for what
reason the accused was raised loan from this complainant, same
is not stated in his complaint or in his chief-examination, he
denied that along with 3 disputed cheques, he took 10 blank
signed cheques from this accused and also on demand
promissory note and he advised to accused to raise car loan
from the Banker. But the complainant failed to raise car loan
and complainant failed to return said documents to accused and
he has not produced any documentary evidence to show that he
8 C.C.No.17980/2012
has got so much of amount with him, same is paid to accused.
On the basis of the cross-examination of PW-1, in order to show
that the complainant has got 3 lakhs rupees with him, it is the
duty of complainant to prove his case beyond all reasonable
doubt. Only at the time of cross-examination of DW-1 he got
marked Ex.P-13 the Rent agreement to show that the
complainant is rented his shop. But in support of his
contention he has not produced any other documents to show
that the said amount has been paid to the accused, because
accused has denied the entire case of complainant. In support
of his denial case of complainant, the accused adduced his oral
evidence as DW-1, in which he has stated that in the year 2011,
complainant promised him to raise Car loan for that he took
signed blank cheques and on demand promissory note and also
the Stamp-paper. Further he took the RTC and Mutation
extract standing in his mothers name, but he failed to raise any
loan and failed to return the documents and after receipt of
Ex.P7 legal notice he came to know the cheques given by him
has been misused by the complainant. For that he asked the
complainant for misuse of cheques, for that complainant told
that he will not made any case against this accused. Hence, he
kept quite and he did not issued any legal notice. This DW-1
has been cross-examined by the complainant counsel, in the
cross-examination, he denied that he raised loan of Rs.
9 C.C.No.17980/2012
3,00,000/- from the complainant and for the repayment of the
said loan he issued 3 cheques. He also denied that in C C No.
9933/2012 in that case he is the accused in that cas3, he
compromise the case and he is in the habit of raising loan from
several persons and issuing cheques for repayment without
having sufficient funds in his account. Hence, he has
committed an offence punishable under Sec. 138 NI Act.
11. In support of case of complainant, the learned counsel
for complainant at the time of addressing arguments on merit,
produced the certified copy of the order-sheet in C.C. No.
9933/2012, in which one Shivakumar filed cheque bounce case
against this accused, the case is closed for full and final
settlement. But, it does not mean that accused raised loan from
the complainant and for repayment of said amount issued the
cheques in question same are dishonoured. The accused
counsel also argued that the accused has not issued any cheque
for discharge of any legal liability, the alleged cheque has been
given for the security to raise Car loan by the accused, but the
complainant without raising Car loan make use of the alleged
cheques in question and filed this case etc.,
10 C.C.No.17980/2012
12. In support of his contention the learned counsel for
the accused has relied on the decision reported in :
AIR 2003 Supreme court 182, Between C. Anthony
.Vs. K.G. Raghavan Nair. Wherein it is held :
The trial court also held that the respondents case that
the cheque in question Ex.P-1 was filled up by the appellant and
brought to the office of Vijay Kumar could not be accepted,
because of the difference in the ink used in writing of the name
and amount in the cheque and the ink used in the signature
portion of the cheque.
13. On the basis of the aforesaid decision coupled with
oral and documentary evidence of complainant in order to show
that the complainant has got so much of amount with him,
same is paid to accused, he has not produced any documentary
evidence and the alleged cheques in question, contents of the
cheques and signature found on cheques are different Ink, same
is admitted by PW-1 at the time of cross-examination. Hence, it
creates doubtful whether the complainant really advanced loan
of Rs. 3,00,000/- to the accused and for repayment of said
amount, the accused issued cheques in question, same were
dishonoured etc., The case of the complainant crates doubtful
and he failed to give cogent and convincing evidence before this
court to prove that the accused has committed the alleged
11 C.C.No.17980/2012
offence punishable under Sec. 138 N.I. Act. On the basis of the
cross-examination of PW-1 and also in the chief-examination of
DW-1, the accused has given rebuttal evidence to the case of
complainant, the complainant failed to prove the alleged guilt of
accused beyond reasonable doubt, hence the benefit of doubt
goes to accused. Hence, accused is entitled for acquittal.
Accordingly, I answer point No.1 in Negative.
14. 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 of 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 judgment writer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 12th day of February 2015) (NAGARAJEGOWDA.D) XXII Addl. Chief Metropolitan Magistrate, Bangalore City.
12 C.C.No.17980/2012ANNEXURE Witnesses examined for the Complainant:
PW.1 J.H. Shiva Kumar.
Witness examined for the accused:
DW-1. Basappa @ Basanthi.
List of Documents marked for the Complainant:
Ex.P1. Cheque Ex.P1(a) Signature of accused Ex.P2 Returned memo Ex.P3. Cheque Ex.P3(a) Signature of accused Ex.P4 Returned memo Ex.P5. Cheque Ex.P5(a) Signature of accused Ex.P6 Returned memo Ex.P7 Legal notice Ex.P8
to P9. 2 RPAD Postal receipts. Ex.P10 & P11. 2 Postal Acknowledgements. Ex.P12. Complaint. Ex.P13. Shop rent agreement.
List of Documents marked for the accused:
Nil XXII ACMM, Bangalore.13 C.C.No.17980/2012
12/2/2015 Com:
Ac:
For judgment:
Judgment pronounced in open court vide separate Judgment. Operative portion reads as :
ORDER Acting u/s 255(1) of Cr.P.C., the accused is acquitted of 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.
XXII ACMM, Bangalore.
14 C.C.No.17980/20127