Bangalore District Court
R.V.Satish Chandra vs Mr.S.Rajendra Naidu on 21 September, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 21st day of September, 2015
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
C.C.No.11361/2014
Complainant : R.V.Satish Chandra
S/o. Late R.C.Vardamanaiah
Aged years, No.230,22nd cross,
6th block, Jayanagara,
Bangalore-82.
(By Sri.N.Sukumar Jain, Adv.)
V/s.
Accused : Mr.S.Rajendra Naidu
S/o Kuppa Naidu
Major, Royal Residency, No.101,
6th Main, Hanumagiri,
Nandakumar Layout,
Bangalore-560 001.
(By Sri.L.S.Krishne Gowda, Adv.)
Date of Institution 23-9-2013.
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 : 21.09.2015.
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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.
REASONS
The brief facts of the complainant case is as follows:-
2. Accused is a builder . He borrowed a sum of
Rs.15,00,000/- on 20-03-2013 from the complainant for his
construction activities. As such, the accused has issued a cheque
bearing No.006418 dated 20-6-2013 of Andhra Bank,Uttarahalli
Branch, Bangalore, for a sum of Rs.15 Lakhs in the name of
complainant which is duly signed by the accused. The
complainant presented the said cheque on 25-7-2013 for
encashment through his banker Karuru Vysya Bank, Isro Layout
branch, Bangalore . But the said cheque is returned unpaid with
an endorsement to that effect "Funds insufficient" as per the
Memo dated 26-7-2013. The complainant has issued legal notice
dated 6-8-2013 through his advocate, calling upon the accused to
pay the cheque amount . The notice sent by RPAD was served to
the accused . The accused has refused to receive the legal notice
inspite of intimation by the postal authority and thus accused
committed the offence punishable u/s. 138 of NI Act and punish
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the accused in accordance with law, in the interest of justice and
equity.
3. The accused appeared before this court and contest this
case by denying the entire case of complainant at the time of
recording of Plea of Accusation . In order to prove the case of
complainant, he adduced his oral evidence as PW-1 by way of
affidavit and got marked Ex.P1 to Ex.P10 and examined one
witness as PW-2 and through him got marked Ex.P6(a) and these
PW-1 and 2 have been fully cross examined by the accused
counsel and thus complainant closed his side evidence.
4. There afterwards, the accused examined u/s.313 of
Cr.P.C. in which, he totally denied the entire case of complainant .
He in support of his denial, lead his oral evidence as DW-1 on
Oath . At the time of cross-examination of PW-1, the accused
counsel got marked Ex.D 1 to Ex.D4 and at the time of leading
chief examination of DW-1 got marked Ex.D5 to Ex.D8 and this
DW-1 has been fully cross-examined by the complainant counsel
and thus closed his side defence evidence.
5. I have heard the arguments of Ln.counsel for
complainant on merit. In support of his contention, complainant
counsel submitted written arguments by narrating the facts and
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circumstances of the case and also relied on the following
decisions reported in : AIR 2009 SC page 386 and (2010)11
Supreme Court Cases page 441. Accordingly, he prays for
convicting the accused in accordance with law.
6. In support of the case of accused, the Ln.counsel for
accused submitted written arguments by narrating the facts and
submits that accused has given rebuttal evidence to the case of
complainant. In support of his contention, he too also relied on
the following decisions reported in: Criminal Appeal No.2482 of
2014, Crl.A.No.1522 of 2014 on the file of Hon'ble Supreme Court
of India , 2011(5) KCCR 4223 and 2010(5) KCCR SN 435. Hence,
prays for acquittal of the accused in accordance with law.
7. It is the duty of the complainant to prove his case beyond
all reasonable doubt. Accordingly, complainant adduced his oral
evidence as PW-1 filed by way of affidavit. In which, he reiterated
complaint contention and got marked Ex.P1 cheque and
identified the signature of the accused as per Ex.P1(a). This
issuance of cheque in favour of complainant for discharge of legal
liability has been disputed by the accused. Further got marked
Ex.P2 is an endorsement issued by the bankers stating that Ex.P1
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cheque is dishonoured due to ""Funds insufficient" Ex.P3 is the
copy of legal notice . This notice does not contain the signature of
the complainant except his counsel . Ex.P4 is RPAD postal
receipt. Ex.P5 is the postal cover returned with postal shara "
Intimation delivered door locked and not claimed " etc.. Ex.P5(a) is
the notice in the cover. Ex.P6 is the understanding/Memorandum
taken between the complainant and the accused. In which, the
accused undertaken to pay Rs.15,00,000/- to the complainant
with interest @ 12% from 20-3-2013 to 20th June 2013 upto the
date of repayment but these facts has not stated in the complaint
because the accused has denied the execution of this
Memorandum stating that this signature found on the
Memorandum was given by the accused in a blank form and later
the complainant filled up the said Memorandum for his whims
and fancies . Further got marked Ex.P7 is the Joint Development
Agreement taken between Smt. Vimala.P. and Sri Shailesh Jain
with the accused and one Ramakrishna Naidu with respect of
construction of Apartment. In this Joint Development Agreement,
there are various conditions put forth in Sl.No.12 with the
Captions BREACH AND CONSEQUENCES. In which it is
mentioned that, in the event of breach of the terms of this
Agreement by either party , the aggrieved party shall be entitled to
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specific Performance and also be entitled to recover all the losses
and expenses incurred as consequence of such breach from the
party committing the breach. In para-13 with the caption
ARBITRATION, in which it is mentioned that, in the event of
breach of the terms of this agreement or in the even of any
differences or disputes arising between the parties in regard to
this agreement or any matter relating thereto. The same shall be
referred to and settled by Arbitration under the provisions of the
Arbitration & Conciliation Act in force". As per the terms of Joint
Development Agreement, the complainant instead of approaching
the Arbitration for his redressel filed this case without assigning
any reasons whatsoever. Ex.P8 is the HDFC Bank Account
statement, stands in the name of complainant to show that the
complainant has made money transaction with the bankers . As
per statement, his transaction is not crossed more than
Rs.1,20,000/- . Ex.P9 is the another statement of account
pertaining to ICICI Bank stands in the name of complainant to
show that during the year, 2012, complainant made transaction
with the bankers and in this statement of account also he made
money transaction more than Rs.21 lakhs and odd. Ex.P10 is the
Value added Tax Registration certificate stands in the name of
7 C.C.No.11361/2014
complainant's wife. Further examined PW-2 Mehta. He deposed in
favour of complainant but he is not a signatory to the Ex.P6 etc..
8. On the basis of the aforesaid documentary and oral
evidence and as per the contents of the document the
complainant has not stated anything in the complaint . Hence,
the case of complainant create doubtful whether, he has not
approached this Court with clean hands.
9. The accused has denied the entire case of complainant .
In support of his denial, he lead his evidence as DW-1 on Oath .
In which he has stated that he has not made any money
transaction with the complainant and he has not executed Ex.P6
and also issued Ex.P.1 cheque . Ex.P6 was taken between the
complainant wife with her partner Sri Shailesh Jain. The Wife of
complainant and Sri Shailesh Jain have approached him for
construction of building hence, the Joint Development Agreement
was taken place . At the time of construction of building, he
obtained bank loan from the IDBI Bank and he was due towards
the said bank loan of Rs.13,00,000/- at that time, he issued two
D.D.s amounting to Rs.50,000/- and Rs.2,50,000/- for that,
produced Xerox copy of D.D., which are marked at Ex.D1 and
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Ex.D2 and thereafterwards , he did not repaid the loan amount .
Hence, the said bankers have attached the building constructed
by this accused and they have seized the building project and
repaid the loan amount . Thereafterwards he completed the
building construction as per Joint Development Agreement during
the year, 2011 . Thereafterwards himself executed sale deed on
10-2-2012 , 30-7-2012 , 17-7-2012 and 25-3-2013 . For that, got
marked Xerox copy of the agreement to sell as per Ex.D5 to Ex.D8
and he has not obtained any loan amount from the complainant
and also he has not issued any alleged cheque in question for
discharge of his liability and he has not received any legal notice
from the complainant about dishonour of the cheque but the
signature found on Ex.P1 cheque and Ex.P6 document belongs to
this accused but those documents are given as a security which
were given in blank form and the wife of complainant obtained
signature on the blank paper and without returning the said
cheque and the blank paper, misused the same and through this
complainant filed this case . He is not having habit of putting his
signature on the written document by giving the long gap. Hence,
he prays for acquittal from this case.
10. The complainant counsel cross-examined the DW-1. In
his cross-examination , from the last 7 to 8 years , he is doing
9 C.C.No.11361/2014
building construction work and Ex.P7 was the Joint Development
Agreement and as per the terms and conditions of agreement, he
issued a cheque in question and the same are dishonoured and at
the time of giving cheque and blank paper to the wife of
complainant he has not obtained any documentary evidence and
he do not know the date of Ex.P6 and the same was taken during
the year, 2012 except he has put his signature . At the time of
putting signature it was in blank form, the same has been
obtained forcibly from him and he completed 8 blocks
construction work and himself has spent amount for construction
of the said block, he spent Rs.1.5 Crores. To that effect, he used
to pay income tax and he has not produced any I.T.Returns of the
year 2010 to 2014. As per the Joint Development Agreement, he
paid the amount to one Shailesh Jain and Rs.13 lakhs has been
mentioned in the agreement but at the time of construction, he
obtained the loan amount from this complainant but after
completion of the Apartment, he sold some of the Apartment as
S.P.A.Holder etc.. Except total denial of contention of accused in
order to show the complainant had paid huge amount to the
accused for the purpose of construction work.
11. As per the Chief examination of DW-1 accused counsel
cross-examined the PW-1 in which, he denied the entire case of
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accused and he admitted that the accused is no need of money for
the purpose of construction of building and as per the order dated
7-8-2010 withdrawal of Rs.2,50,000/- and also as per the
statement of account on 28-12-2010 through Pay Order took
Rs.10 Lakhs from the account of accused but he voluntarily
stated he has not received the said amount but before the Joint
Development agreement taken place was took loan from the wife
of complainant and at the time of executing Joint Development
Agreement, there was a loan due from this accused and he denied
that himself has obtained Rs.50,000/- from the accused at the
time of executing Joint Development agreement on 9-9-2011
Rs.8,00,000/- and on 30-8-2011 Rs.3,90,000/- to the bank. But
instead of repaying the loan amount, the bankers have not issued
a Clearance Certificate. These things are denied by this
complainant and as per Ex.P7 and Ex.P8 he used to made
transaction by means of cheque but sometime he made money
transaction by means of cash and he do not know how much of
amount paid by the accused as per Ex.D1 and Ex.D2 and he has
not shown in I.T.Returns for payment of loan to the accused and
as per Memorandum of Understanding he has not put his
signature and also he has obtained signature of the witness but
he denied that Ex.P1 cheque has been issued by the accused to
11 C.C.No.11361/2014
his wife for the purpose of security . Now with the instigation of
his wife, he filled up Ex.P1 cheque and filed this case against this
accused and the legal notice sent to the accused for dishonour of
cheque is not served , the same is returned with the postal shara
"door locked" and the said endorsement has been created by
himself etc..
12. Likewise in the cross-examination of PW-2, he got
knowledge about if any Memorandum of Understanding taken
place, both the parties should put their signature. But on Ex.P6
the complainant has not put his signature and also witnesses
addresses is incomplete in this document and as per Ex.P7 Xerox
copy of the agreement, his son is also one of the Partner . In
which he used to visit to the construction place everyday and as
per Ex.P7 agreement, there was understanding loan was existing
and also admitted that as per agreement, construction of work
was not completed during the year, 2012 but it was completed
during the year, 2012-2013 and he do not know at that time, the
said building was fetching Crores of rupees but he admitted that
he has got acquainted with the family of complainant and on the
basis of Ex.P6 document, he depose falsely against the
complainant etc..
12 C.C.No.11361/2014
13. On the basis of the aforesaid documentary evidence
adduced by both the complainant and accused , in support of the
case of complainant , the learned counsel for the complainant
relied on the following decisions reported in :
AIR 2009 SC page 386 ( M/s.Indo Automobiles Vs. Jai
Durga Enterprises and others) wherein it is held that,
Dishonour of cheque - notice sent to respondent through
registered post and under certificate of posting on their correct
address- must be presumed that service has been made
effective- service of notice could not found to be valid merely
because of endorsement of postal Peon, More so, when postal
peon was not at all examined-order summoning respondents -
going of on ground that notice was not served on them- liable to
be set aside.
(2010)11 Supreme Court Cases page 441(Rangappa
Vs.Sri Mohan) wherein it is held that, Held.. Presumption
mandated by S.139 includes a presumption that there exists a
legally recoverable debt or liability- However such presumption
is rebuttable in nature- Criminal trial- Proof- presumption-
Generally.
On careful perusal of the aforesaid decisions coupled with
the case of complainant, those decisions are not squarely
applicable to the case of complainant to establish that there was
existing loan to be paid by the accused to this complainant and
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hence, those decisions are not applicable to the present case of
complainant.
14. In support of the defence taken by the accused, learned
counsel for the accused submitted written arguments by
narrating facts and circumstances of the case and in support of
his contention, he too relied on the following decisions reported
in:
Criminal Appeal No.2482 of 2014, on the file of Hon'ble
Supreme Court of India , it is held that ... " On a consideration of
entire oral and documentary evidence the trial court came to the
conclusion that the complainant had no source of income to lend a sum
of Rs.14 lakhs to the accused and he failed to prove that there is
legally recoverable debt payable by the accused to him.
Crl.A.No.1522 of 2014 on the file of Hon'ble Supreme Court of
India , in which it is held that... " complainant, an employee of accused
having annual saving of Rs.10,000/- claiming to have given hand loan of
Rs.5,00,000/- to the accused - could not explain source of fund- claim
not sustainable - trial court rightly acquitting the accused- appellant.
2011(5) KCCR 4223 ( M.B.Rajashekar Vs.Savithramma) wherein
it is held. that " accused pleading that she had issued a post dated
cheque as security - also raising probable defence - it is sufficient to
rebut presumption - acquittal not liable to be interfered with.."
14 C.C.No.11361/2014
2010(5) KCCR SN 435.( B.Girish Vs S.Ramaiah) wherein it is
held that "..... the defence of the accused was that cheque was not
issued for discharge of any debt or liability. Admittedly accused has
no capacity to pay Rs.50,000/- nor he had any savings . No
contemporary documents have come into existence. The income tax
Act requires that all transactions involving Rs.20,000/- and above
should be through Account payee cheque . The defence of accused is
highly probable . Accused has rebutted presumption u/s. 139. The
acquittal is justified.
15. On the basis of the aforesaid decisions coupled with the
defence taken by the accused are squarely applicable to the case
of accused to that there is no existing liability towards the
complainant. It is already noted that as per the Ex.P7 Joint
Development Agreement there was a condition that if any violation
, the parties have to approach the Arbitrator under the Arbitration
Act. But without approaching the concerned Arbitrator, the
complainant has filed this private complaint for the offence
punishable u/s.138 of NI Act is not avail to the case of
complainant. Hence, complainant has not approached this court
with clean hands. The accused has given rebuttal evidence to the
case of complainant. Hence, for these reasons, the accused is
entitled for acquittal. Accordingly, I pass the following:
15 C.C.No.11361/2014
ORDER
Acting u/s 265 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. 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 21st day of September, 2015) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
ANNEXURE Witnesses examined for the Complainant:
PW.1 : R.V.Sathish chandra PW.2 Mehta Witness examined for the accused:
DW-1 : Rajendra naidu List of Documents marked for the Complainant:
Ex.P1 : Cheque
Ex.P1a : Signature of the accused
Ex.P2 : Endorsement
Ex.P3 : Legal notice
Ex.P4 : Postal receipt
Ex.P5 : Postal cover notice in it.
Ex.P6 : Memorandum/undertaking.
Ex.P6a Signature
16 C.C.No.11361/2014
Ex.P7 Joint development agreement
Ex.P8 Statement of account
Ex.P9 Summary of account.
Ex.P10 Value added tax registration '
Certificate.
List of Documents marked for the accused:
Ex.D1 & 2 : Copies of cheque Ex.D3 &4 Andhra bank statement of account Ex.D5 Copy of Absolute sale deed Ex.D6 Copy of Absolute sale deed. Ex.D7 Agreement of sale.
Ex.D8 Agreement of sale
XXII ACMM, Bangalore.