Bangalore District Court
Sri. Siddaiah vs Sri. R. Manjunath on 8 January, 2018
CC.No.2354/2017
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present: Smt. HEMA PASTAPUR
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 8th day of January 2018
C.C.No.2354/2017
Judgment under section 355 of Code of Criminal Procedure
Complainant : SRI. SIDDAIAH,
s/o late Siddaiah,
Aged about 50 years,
R/at No.9, Pipeline Road,
Heruhalli Cross,
Mahadevanagar,
Bengaluru - 91.
Occupation:- Business.
(By Shri K.V. Harish, Advocate)
V/s
Accused : SRI. R. MANJUNATH,
s/o Ramalingaiah,
Aged about 36 years,
World Wide Digital Martix Pvt. Ltd.,
1st Cross, Indiranagar,
Bengaluru - 88.
Ph.No.8553442569/9880674087.
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CC.No.2354/2017
Occupation:- Employee.
(By Shri Sriramappa. S, Advocate)
JUDGMENT
That, the complainant has filed the private complaint under section 200 of Code of Criminal Procedure, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the brief facts of the present case are as under:-
1. That, the complainant and accused are known to each other since several years and the accused in view of said acquaintance on 30.08.2016 had approached and requested the complainant for lending him a sum of Rs.2,00,000/- and accordingly, the complainant on 31.08.2016 had advanced him the said amount in cash and the accused at the time of availing the said loan amount had agreed to repay the same within two months from the date of its availment. That, when the complainant after completion of said period of two months approached and demanded the accused for returning his said amount, at the time the accused to discharge his legally enforceable debt had issued in his favour a Cheque bearing 2 CC.No.2354/2017 No.306862 for a sum of Rs.2,00,000/- drawn on HDFC Bank, Kasturba Road branch, Bengaluru - 01 and the complainant on 28.11.2016 had presented the said cheque for encashment in Indian Overseas Bank, Sunkadakatter branch, Bengaluru and on 29.11.2016 the said cheque was returned with the shara as 'Funds Insufficient' in the account of the accused. That, the complainant for the aforesaid acts of the accused on 09.12.2016 had issued the legal notice to him and on 17.12.2016 the said notice was delivered on him and the accused inspite of receiving the said notice had failed to comply with the terms of the said notice. That, in view of the same the complainant has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took the cognizance for the offence punishable under section 138 of the Negotiable Instruments Act and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to him. That, the accused in pursuance of said summons appeared before this 3 CC.No.2354/2017 court through his Learned counsel and he was enlarged on bail. That, the substance of accusation of the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to be tried. That, after completion of the complainant side evidence the statement of the accused as contemplated under section 313 of Code of Criminal Procedure, has recorded and read over him and he denied all incriminating evidence appearing against him.
3. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in his favour a Cheque bearing No.306862 for a sum of Rs.2,00,000/- drawn on HDFC Bank, Kasturba Road branch, Bengaluru - 01?
2. Whether the complainant has further proved that, the said cheque was dishonoured as 'Insufficient Funds' in the account of the accused and thereby the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act? 4
CC.No.2354/2017
3. Whether the complainant has complied with the provisions of section 138(b) of the Negotiable Instruments Act?
4. What order?
4. That, the complainant to substantiate his contentions has deposed himself as PW1 and got marked the documents at EXs.P1 to 5 and closed his side.
That, the accused to substantiate his contentions has deposed himself as DW1 and got marked the documents at EXs.D1 to 4 and closed his side.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the NEGATIVE Point No.2 :- In the NEGATIVE Point No.3 :- In the NEGATIVE Point No.4:- As per the final order for the following:-
REASONS
6. Point No.1:- It is specific contention of the complainant that, the accused on 30.08.2016 had approached and requested him for lending him a sum of Rs.2,00,000/- and accordingly, on 31.08.2016 he advanced him the said loan amount in cash and 5 CC.No.2354/2017 the accused at the time of availing the said loan amount had agreed to repay the same within two months from its availment.
That, the accused in his evidence has specifically contended that he do not know the complainant and he has not availed any amount from him.
7. It is to be noted here that, the accused in support of his contentions has placed his reliance on following decision:-
K. Subramani -vs- K. Damodara Naidu, reported in (2005) 1 Supreme Court Cases 99 wherein it has held that if the complainant fails to prove his source of income from which alleged loan was made to appellant/accused, acquittal of the accused is proper.
8. It is to be noted here that, in the instant case as stated above the complainant is claiming that on 31.08.2016 he advanced a sum of Rs.2,00,000/- to the accused.
It is pertinent to note here that, to draw a presumption under Section 118 r/w Section 139 of the Negotiable Instruments Act, the burden heavily lies on the complainant to substantiate that he advanced the loan amount to the accused. 6
CC.No.2354/2017 It is pertinent to note here that, in the instant case the complainant neither in his complaint nor in his examination-in- chief has specifically mentioned about his source of income.
It is to be noted here that, the complainant in his cross- examination in page no.5 has specifically deposed that he is doing a onion business and from which he gets sum of Rs.10,000/- to 15,000/- per month. It is significant to note here that, the complainant to substantiate his aforesaid contentions has not produced before the court any document. It is further significant to note here that, the complainant to probabalise that on 31.08.2016 he possessed with him a sum of Rs.2,00,000/- has not produced before the court any document. It is pertinent to note here that, in absence of any document evidencing about the income of the complainant it cannot be held that on alleged date he possessed with him such a huge amount and he advanced the same to the accused. It is to be noted here that, in absence of any cogent evidence the contention of the complainant that on 31.08.2016 he advanced a sum of Rs.2,00,000/- to the accused in cash cannot be accepted.
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CC.No.2354/2017
9. It is to be noted here that, the complainant has specifically contended that the accused to discharge his legally enforceable debt had issued in his favour a Cheque bearing No.306862 for a sum of Rs.2,00,000/- drawn on HDFC Bank, Kasturba Road branch, Bengaluru - 01.
It is to be noted here that, the complainant to substantiate his contention in his evidence has got marked the Cheque bearing No.306862 for a sum of Rs.2,00,000/- drawn on HDFC Bank, Kasturba Road branch, Bengaluru - 01, at EX.P1.
It is pertinent to note here that, the accused in his evidence has specifically contended that he and one Smt. Mahadevamma i.e., wife of the complainant have worked in Teamlease Company, Indiranagar, from 2009 to 2015 and he left the said company in the year 2015 and the said Smt. Mahadevamma had left the said company in January 2015. It is pertinent to note here that, the accused has further deposed that he availed a sum of Rs.50,000/- from the said Mahadevamma and he repaid the said amount in the year 2009. That, the accused has further deposed that at the time of availing the said loan amount from said Mahadevamma he issued in her favour two cheques bearing 8 CC.No.2354/2017 No.306868 and 306857 drawn on HDFC Bank, Kasturba Road branch, Bengaluru - 01, for the purpose of security and when he asked her for returning his said cheques she failed to do so. It is to be noted here that, the accused has further deposed that the aforesaid two cheques were very old cheques and they cannot be used for transaction and from the bank statement from 01.11.2016 to 18.06.2017 it appears that one cheque was returned with the shara as 'invalid cheque' and from the bank statement dated:-16.06.2017 it appears that a Cheque bearing No.306857 was returned with the shara as 'Drawer signature differ' and the aforesaid cheque was submitted for encashment on 29.11.2016 for twice and the complainant has also presented the Cheque bearing No.306868 and the same was also returned.
It is to be noted here that, the accused to substantiate his aforesaid contentions in his evidence has got marked his Identity card issued by the Havas World Wide Digital Matrix Company at EX.D1, Printouts of his Bank statements at EXs.D2 and 3 to substantiate that the complainant and his wife have presented the said cheques bearing No.306857 and 306862 in said bank 9 CC.No.2354/2017 and the same were returned as 'drawers signature differs' and as 'invalid cheque'.
10. It is pertinent to note here that, as stated above the complainant is claiming that the accused to discharge his legally enforceable debt had issued in his favour EX.P1. It is pertinent to note here that, it is burden is heavily lies on the complainant to substantiate his aforesaid contentions.
It is significant to note here that, in the instant case the complainant in cross-examination of accused in page no.7 at para no.2 has elicited that EX.P1 is belonging to him and he signed on it. It is further significant to note here that, the complainant in his cross-examination in page no.5 at 17th line has admitted, ¸ÀzÀj ZÉPï£À°è ¸À» MAzÀÄ §tÚzÀ EAQ¤AzÀ EzÀÄÝ G½zÀ ºÀt ¢£ÁAPÀ ºÁUÀÆ ºÉ¸ÀgÀÄ ¨ÉÉÃgÉ §tÚzÀ EAQ¤AzÀ EzÉ JAzÀgÉ ¸Àj.
It is pertinent to note here that, from the said admission of the complainant itself substantiates that the accused has not issued in his favour EX.P1 to discharge his legally enforceable debt. It is significant to note here that, if it appears that there is difference of ink in contents of the body of the cheque and the signature of the appellant/accused then it cannot be held that 10 CC.No.2354/2017 the accused had issued the cheque in question to discharge his legally enforceable debt. It is pertinent to note here that, in the instant case from entire evidence of the complainant and accused it clearly appears that on 31.08.2016 the complainant has not at all possessed with him a sum of Rs.2,00,000/- and he paid the same to him and the accused to discharge his legally enforceable debt had issued in his favour EX.P1. It is pertinent to note here that, in view of My above findings and without much discussion I hold that, the complainant has failed to prove that the accused to discharge his legally enforceable debt had issued in his favour EX.P1. In view of the same, point no.1 is answered in the NEGATIVE.
11. Point No.2:- It is specific contention of the complainant that, when he presented the EX.P1 for encashment in Indian Overseas Bank, Sunkadakatte branch, Bengaluru, on 29.11.2016 the EX.P1 was returned with the shara as 'Insufficient funds' in the account of the accused.
It is pertinent to note here that, the complainant in his evidence has got marked the Cheque return memo issued by the said bank at EX.P2.
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CC.No.2354/2017 It is pertinent to note here that, as discussed on point No.1, the complainant has failed to prove that on 31.08.2016 he advanced a sum of Rs.2,00,000/- to the accused and the accused to discharge his legally enforceable debt had issued in his favour EX.P1 and if such being the case, the question of committing the offence by the accused under section 138 of the Negotiable Instruments Act, does not arise at all. It is to be noted here that, in view of My above findings and without much discussion I hold that, the complainant has failed to prove that the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act. In view of the same, point no.2 is answered in the NEGATIVE.
12. Point No.3:- It is to be noted here that, the complainant has contended that he issued the legal notice to the accused on 09.12.2016 and the said notice was delivered on him on 17.12.2016.
It is to be noted here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Legal notice issued to the accused dated:-09.12.2016 at EX.P3, Postal receipt at EX.P4 and PRAD at EX.P5.
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CC.No.2354/2017
13. It is pertinent to note here that, the accused in cross- examination of the complainant has taken a specific contention that he has not received the said notice.
14. It is pertinent to note here that, the accused in support of his contentions has placed his reliance on following decision:-
M/s. Ajay Industries -vs- Gulshan Rai Malhotra, reported in LAWS (P & H) 2013-7-123 wherein it has held that if there is no an iota of evidence on the record to show that the legal notice has been sent to the correct address, there is no presumption that notice has been served upon the respondent.
15. It is pertinent to note here that, service of notice as to dishonour of cheque is a must for initiating criminal Proceedings. It is significant to note here that, when notice is dispatched by sender through post with correct address on it, it can be deemed to be served on sendee unless he proves that it was not really served.
16. It is pertinent to note here that, in the instant case from perusal of EX.P5 it clearly appears that the complainant has sent a notice to the accused by mentioning the address as Sri. R. 13 CC.No.2354/2017 Manjunath s/o Ramalingaiah, World Wide Digital Matrix Pvt. Ltd., 1st Cross, Indiranagar, Bengaluru - 88. It is to be noted here that, from perusal of EX.P5 it clearly appears that the said notice was returned with the shara as 'No such person in this address return to sender'.
It is pertinent to note here that, the complainant has issued the legal notice to the accused to aforesaid address and he furnished to the court the RPAD mentioning the address of the accused R. Manjunath s/o Ramalingaiah, R/at Havas Media Pvt. Ltd., 4th Cross, 13th Main, HAL 2nd Stage, Indiranagar, Bengaluru
- 08. It is pertinent to note here that, from perusal of EX.P3 and the said RPAD it clearly appears that the complainant has mentioned the different addresses.
It is to be noted here that, the complainant in his cross- examination in page no.6 at 3rd line has specifically deposed and admitted that, £Á£ÀÄ £ÉÆÃn¸ï£À°è w½¹gÀĪÀ «¼Á¸À ºÁUÀÆ £ÁåAiÀiÁ®AiÀÄ¢AzÀ DgÉÆæUÉ PÀ¼ÀÄ»¹zÀ ¸ÀªÀÄ£ïì£À°ègÀĪÀ «¼Á¸À ¨ÉÃgÉ ¨ÉÃgÉ JAzÀÄ ¸ÀÆa¹zÀgÉ £À£ÀUÉ UÉÆwÛ®è. £Á£ÀÄ ªÀQîgÀ ªÀÄÆ®PÀ DgÉÆæUÉ PÀ¼Ài»¹zÀ £ÉÆÃn¸ï D jÃw ªÀåQÛAiÀÄÆ «¼Á¸ÀzÀ°è E®è JAzÀÄ £À£ÀUÉ »AwgÀÄV §A¢vÀÄÛ JAzÀgÉ ¸Àj.
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CC.No.2354/2017 It is to be noted here that, from the said admission of the complainant itself clearly appears that he had dispatched the said notice to incorrect address. It is to be noted here that, in the instant case the accused has rebutted that he has not received the said notice i.e., EX.P5. It is to be noted here that, in view of My above findings I hold that, the complainant has not complied with the provisions of section 138(b) of the Negotiable Instruments Act. In view of the same, point no.3 is answered in the NEGATIVE.
17. Point No.4:- That, as discussed on points No.1 to 3, I proceed to pass the following:-
ORDER That, acting under section 255(1) of Code of Criminal Procedure, the accused is acquitted for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the accused shall comply with provisions of section 437(A) of Code of Criminal Procedure.
(Dictated to Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 8th day of January 2018) (Hema Pastapur) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
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CC.No.2354/2017 ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Sri. Siddaiah s/o late Siddaiah.
List of exhibits marked on behalf of complainant:-
Ex.P1 : Original cheque; Ex.P1(a) : Signature of the accused; Ex.P2 : Cheque return memo; Ex.P3 : Legal notice dated:-09.12.2016; Ex.P4 : Postal receipt and Ex.P5 : RPAD cover.
List of witnesses examined on behalf of the accused:-
DW.1 : Sri. Manjunath R s/o J. Ramalingam.
List of exhibits marked on behalf of the accused:-
Ex.D1 : ID card of the accused issued by Havas World Wide Digital Matrix, Bengaluru;
Exs.D2 and 3 : Bank statements of the accused and Ex.D4 : Certificate of the accused.
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
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