Bangalore District Court
Chandramma vs Bala Channaiah on 17 March, 2015
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BANGALORE CITY
Dated this the 17th day of March - 2015
PRESENT: SRI. L.R. KURANE, B.Com., LL.B.,(Spl)
XXIII Addl.C.M.M., Bangalore City.
C.C.NO.2833/2010
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Chandramma,
Aged about 45 years,
W/o.Narasimha Murthy,
R/at.No.277,
Narasimhaiah Nilaya,
Mahadeshwarangara,
Vishwaneedam Post,
Bangalore-91.
(By Sri.Gangaiah, Advocate)
V/S
Accused : Bala Channaiah,
Aged about 46 years,
S/o.Channaiah,
R/at.No.F-37, 4th Floor,
Site No.1058, 1059,
BEL Layout, Vidyaranyapura,
Bangalore-97
Also working at:
As Manager,
Staff No.E-20 9410,
Testing/NCS,
Bharath Electronics Ltd.,
Jalahalli,
Bangalore-13
(By Sri.M.J.Alva, Advocate)
Judgment 2 C.C.2833/2010
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 17.03.2015.
(L.R. KURANE)
XXIII Addl.CMM., Bangalore.
JUDGMENT
This complaint has filed by the complainant against the accused under Section 200 Cr.P.C., for the offence punishable under Section 138 of Negotiable Instruments Act, to take cognizance of the offence under Section 138 of Negotiable Instruments Act, and punish the accused in accordance with law.
2. The brief facts of the complaint are as under:
The complainant knew the accused. The accused has agreed to sell the property bearing No.823, consisting of RCC roofed house, measuring to an extent of East side 55 feet, West side 56 feet and north to south 30 feet, situated at Narasipura Village, Yelahanka Hobli, Bangalore North Judgment 3 C.C.2833/2010 Taluk. The accused and complainant entered in to an agreed of sale dated:20.08.2006. The accused agreed to sell the property for sale consideration of Rs.60 lakhs in favour of complainant. It is further stated that, the complainant on the date of agreement of sale has paid an advance sale consideration of Rs.35 lakhs to the accused, and on the date of the agreement of sale the complainant and one Usha were present and have witnessed to the said agreement. The accused due to unavoidable circumstances has failed to execute the sale deed to the complainant and has executed a shara depicting that the accused was unable to execute the sale deed as such he was issued the cheque bearing No.195984, dated:27.10.2009 for Rs.35 lakhs drawn on State Bank of India, Jalahalli Branch, Bangalore, in favour of the complainant.
It is further case of complainant that, on 27.10.2009 the complainant has presented the said cheque through her banker viz., Janatha Seva Co-Operative Bank, Vijayanagara, Bangalore for its encashment, which was dishonoured with an endorsement "Funds Insufficient" in the account of accused dated:29.10.2009. On 07.11.2009, Judgment 4 C.C.2833/2010 the complainant has issued a legal notice to the accused by RPAD as well as Under Certificate of Posting to both the address given by him. The notice sent by RPAD as well as Under Certificate of Posting was duly served upon accused on 09.11.2009. The accused after receipt of notice has issued reply notice by the reply dated:19.11.2009 taking untenable grounds. After receipt of notice the accused has not paid the cheque amount to the complainant. Hence, the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act.
3. My predecessor after perusing records, took cognizance of offence, and sworn statement of the complainant has been recorded. The Criminal Case has been registered against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused after service of summons put his appearance through his counsel and has been enlarged on bail. Thereafter, the court has recorded the plea of accused and the accused has not pleaded guilty of the offence and claims to be tried. Hence, the case was posted for trial. Judgment 5 C.C.2833/2010
4. The complainant in order to prove his case, got examined himself as PW-1 and two witnesses as PW.2 and PW.3 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 him. The accused in order to disprove his case got examined himself as DW.1 and one witness as DW.2 and got marked six documents at Exs.D1 to D6 and closed his side.
5. I have heard the arguments on both the sides.
6. The following points would arise for my consideration:
1. Whether the complainant proves that, the accused had agreed to sell the property for sale consideration of Rs.60 lakhs in favour of complainant and on the date of agreement of sale the complainant has paid an advance sale consideration of Rs.35 lakhs to the accused, the accused due to unavoidable circumstances has failed to execute the sale deed in favour of Judgment 6 C.C.2833/2010 complainant, as such the accused has issued a cheque bearing No.195984, dated:27.10.2009 for Rs.35 lakhs drawn on State Bank of India, Jalahalli Branch, Bangalore, towards legally enforceable debt?
2. Whether the complainant further proves that, the accused has committed an offence punishable U/S 138 of NI Act?
3. What Order?
7. My findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
8. POINT NOs.1 & 2: These two points are inter- linked in order to avoid repetition of facts both points are taken for discussion at once.
In order to prove his case, the complainant has examined himself as PW.1 and in his examination in chief led by way of affidavit has reiterated the complaint averments. Apart from the oral evidence, the complainant Judgment 7 C.C.2833/2010 has also produced the documents namely the cheque at Ex.P1, issued by the accused for Rs.35 lakhs and the same was presented by the complainant for its encashment and the said cheque was dishonoured on 29.10.2009 for "Funds Insufficient" in the account of accused. Ex.P2 is the Endorsement issued by the bank on 29.10.2009, Ex.P3 is the legal notice issued by the complainant to the accused making payment of cheque amount. Exs.P4 to P6 are the postal receipts, Exs.P7 and P8 are the Postal Acknowledgment Cards, Ex.P9 is the reply notice issued by the accused to the complainant counsel, Ex.P10 is the complaint lodged by the complainant against the accused, Ex.P11 is the Agreement of sale entered in to between complainant and accused, Ex.P12 is the Sale Deed executed by complainant in favour of one M.Chandrakuamr, Ex.P13 is the Sale Deed executed by complainant in favour of one Gangaraju, Ex.P14 is the another sale deed executed by one Narasimhamurthy in favour of one Dhananjaya, Ex.P15 is the another sale deed executed by complainant in favour of one V.C.Niranjanamurthy, Ex.P16 is the Payslip of one Judgment 8 C.C.2833/2010 Narasimha Murthy for the month of July, 2011 and Ex.P17 is the letter.
9. It is the defence of accused that, he do not know the complainant. The brother of accused and husband of complainant knew each other. On 20.08.2006, he had availed a loan of Rs.2 lakhs from the husband of complainant through his brother Channakeshavulu. The accused has repaid the said amount with interest in the year 2007. The accused stated that, the husband of complainant had obtained blank signed cheque and blank signed bond paper from him at the time of giving the hand loan of Rs.2 lakhs to him. The accused further stated that, after repayment of the amount, the husband of complainant had not returned the cheque and blank signed bond paper to him.
10. The PW.1 in her examination in chief has reiterated the above said facts. In her cross-examination, she stated that, she is house wife and she was not served in any Government or Private job at any time. Her husband is serving in BEL company and getting monthly salary of Rs.40,000/-. The complainant, her husband and her son Judgment 9 C.C.2833/2010 living together. The PW.1 stated that, her husband used to tell money transaction if he done with others. The PW.1 in her cross-examination stated that, she has no problem to produce the salary certificate of her husband, but the complainant has not produced salary certificate of her husband. The accused by filing application under RTI Act has produced salary certificate of husband of complainant at Ex.D3 and it reveals that, in the month of September 2006, the husband of complainant was getting monthly salary of Rs.13.036/-. The PW.1 further stated that, they have receiving rent of Rs.30,000/- per month from the house property. The complainant in order to show that, they have getting rent of Rs.30,000/- per month, has not produced rent note or rental agreements to show that they have let out their house property on rented basis to the others.
11. The PW.1 further stated that, Rs.35 lakhs was kept in her house. The PW.1 stated that, she has sold the site standing in her name for Rs.33 lakhs and that amount was kept in the house. The PW.1 further stated that, except the disputed cheque i.e., Ex.P1 she and her husband was not Judgment 10 C.C.2833/2010 holding any other documents of accused. The PW.1 further stated that, she is not an income tax assessee and she has not paid the income tax. The PW.1 further stated that, Ex.P11 - Agreement of sale was cancelled and the accused by executing shara on Ex.P11 has issued the disputed cheque to her for the repayment of advance sale consideration. The complainant has produced Ex.P12 - Sale Deed dated:14.02.2006, executed by her to one M.Chandrakumar. The complainant had sold site bearing No.210 to the said Chandrakumar.M for Rs.1,50,000/-. The complainant has also produced Ex.P13 - Sale Deed dated:06.02.2006 executed by complainant to one Gangaraju and under the Ex.P13 the complainant has sold property measuring to an extent of 0.10 guntas of land to one Gangaraju for Rs.7,50,000/-. The complainant has also produced Ex.P14 - another Sale deed dated:31.03.2005 under which the husband of complainant had sold the site bearing No.65 to one Dhananjaya for Rs.2,85,000/-. The Ex.P15 - Sale deed dated:27.09.2006 executed by complainant to one V.C.Niranjana Murthy for Rs.6 lakhs. The total amount of properties sold was Rs.16,85,000/-. The complainant claimed that she has Judgment 11 C.C.2833/2010 paid Rs.35 lakhs as advance sale consideration to accused for purchase of site bearing No.823 from the accused. The complainant was not explained, how she collected remaining amount of Rs.18,15,000/- which is alleged to be paid to the accused. The complainant has not produced documents to show that, she is getting rent of Rs.30,000/- per month from the house property.
12. The PW.1 further stated that, the accused has kept original documents in the bank and after getting the same from the bank has agreed to execute the sale deed to her and executed the sale deeds in the name of some other persons. The PW.1 further stated that, the accused has cancelled the agreement of sale for some reason and requested take back their advance money. The PW.1 in her cross-examination on page 11 stated that, the accused, himself has got typed in the Ex.P11 and put his signature on Ex.P11. The PW.1 stated that, the Ex.P11 was typed two times on 20.08.2006 and 15.09.2009. The PW.1 stated that, she is having the possession of Ex.P11 from 20.08.2006 till the date of production of Ex.P11 in the Court. It reveals that, from 20.08.2006 the Ex.P11 was in Judgment 12 C.C.2833/2010 the custody of the complainant and it cannot be believed that on 15.09.2009. The accused has got typed the shara on Ex.P11, therefore it creates doubt about genuiness of the document. Mere marking of document is not proof of its contents. The accused in his evidence denied regarding execution of agreement of sale and shara in Ex.P11. The accused stated that, the husband of complainant and his brother - Channakeshavulu knew each other and his brother Channakeshavulu introduced the husband of complainant to him. He further stated that, on 20.08.2006 he had availed hand loan of Rs.2 lakhs from the husband of complainant. He and his brother Channakeshavulu in the year 2007 had paid the entire amount of Rs.2 lakhs along with interest to the husband of complainant. The accused further stated that, at the time of availing the hand loan of Rs.2 lakhs from the husband of complainant, had issued blank signed cheque and blank signed bond paper worth of Rs.500/- to the husband of complainant and stated that, after repayment of Rs.2 lakhs to the husband of complainant, had requested the husband of complainant to return the blank signed cheque and blank signed bond paper, but he had not returned the said cheque and bond Judgment 13 C.C.2833/2010 paper to him. In his cross-examination he stated that, he has not produced any document to show that on 20.08.2006 he had availed a hand loan of Rs.2 lakhs from the husband of complainant. He has not produced document to show that, he paid Rs.2 lakhs to the husband of complainant. He has not issued notice to the husband of complainant demanding to return of cheque and blank signed bond paper from the husband of complainant.
13. The accused got examined DW.2 who is brother of accused. The DW.1 in his examination in chief stated that, the accused has obtained Rs.2 lakhs from the husband of complainant by issuing two blank signed cheques, property extract and blank signed bond paper. The DW.2 stated that, the complainant had returned the amount to the husband of complainant and the husband of complainant promised to return the cheque and bond paper from his house, but had not returned the same to the accused. The DW.2 in his cross-examination admitted that, he had availed hand loan of Rs.2 lakhs to the husband of complainant and had issued the disputed cheque to the complainant husband, which was dishonoured and also Judgment 14 C.C.2833/2010 admitted that, the husband of complainant has filed a case in C.C.No.1439/2010 against him. The DW.2 who is the brother of accused may be deposed to help the accused. Therefore, the evidence of DW.2 is not believable. The claim of complainant based on Ex.P11 and shara. I have perused the Ex.P11 carefully to ascertain the truth of the document. On 07.08.2006, the bond paper was purchased in the name of accused and prepared the Ex.P11 on 20.08.2006, and it was typed and alleged to have been executed by the accused to complainant. The signature of accused had been taken in the middle of Ex.P11 i.e., Ex.P11(E) and at the end of 1st page on front page of Ex.P11 i.e., Ex.P11(D). On the backside of Ex.P11 also the signature of the accused was taken in the middle of Ex.P11 i.e., Ex.P11(B) and the end of Ex.P11 at Ex.P11(C). The Ex.P11 also reveals that, the typewriting was made on two different dates i.e., 20.08.2006 and 15.09.2009. If the accused has really executed the Ex.P11 then his signature should have been taken after completion of agreement of sale i.e., Ex.P11 and also his signature should have been taken after completion of shara on Ex.P11. It shows that, the complainant has obtained blank signed bond paper Judgment 15 C.C.2833/2010 from the accused and it has been prepared as per the well and wish of her. It indicates that, the complainant after getting blank signed bond paper from the accused has prepared the Ex.P11 and shara to suit her claim under the Ex.P11.
14. The complainant has got examined PW.2 and PW.3, who were the witnesses to the Ex.P11. The PW.2 in his examination in chief has deposed that, the facts of the complaint and stated that, the accused has received sum of Rs.35 lakhs from the complainant and executed the Ex.P11 and shara on it.
15. The PW.2 in his cross-examination shows his ignorance regarding payment of hand loan of Rs.2 lakhs paid by the husband of complainant to the accused. He do not know that the husband of complainant was paid an amount of Rs.2 lakhs to the accused through one Channakeshavulu. He do not know that the husband of complainant was obtained blank signed bond paper and blank signed cheque from the accused. The PW.2 in his cross-examination on page 7 stated that, the complainant has given information to prepare the Ex.P11. He do not Judgment 16 C.C.2833/2010 know the date of endorsement made on Ex.P11. He do not know when the accused has issued the disputed cheque to the complainant. The cross-examination of PW.2 reveals that, he is not acquainted with the facts of the case and has deposed falsely to help the complainant.
16. The PW.3 in his cross-examination on page 5 stated that, "ZÉPÀÌ£ÀÄß AiÀiÁªÀ ¢£ÁAPÀzÀAzÀÄ DgÉÆæAiÀÄÄ ¦AiÀiÁðzÀÄzÁgÀjUÉ PÉÆnÖzÁÝgÉ JAzÀgÉ D ZÉPÀÄÌ PÉÆnÖgÀĪÀ «µÀAiÀÄ £À£ÀUÀÉ UÉÆwÛ®è. ¢£ÁAPÀB20.08.2006 gÀAzÀÄ ¤¦-11 zÁR¯ÉAiÀÄ£ÀÄß ªÀiÁqÀ¯ÁVzÉ. ¤¦-11 gÀ°ègÀĪÀ JAqÁgïìªÉÄAmï §UÉÎ £À£Àß UÉÆwÛgÀĪÀÅ¢®è. ¸ÀĪÀiÁgÀÄ 35 ªÀµÀðUÀ½AzÀ £À£ÀUÉ ¸ÀzÀj £ÀgÀ¹AºÀªÀÄÆwð gÀªÀgÀ ¥ÀjZÀAiÀÄ«gÀivÀÛzÉ". The above said cross-examination of PW.3 reveals that, the shara on the Ex.P11 was not prepared in his presence. It creates doubt about the genuiness of Ex.P11.
17. The accused in his defence stated that, he has obtained Rs.2 lakhs from the husband of complainant and has returned the same to him. The accused further stated that, at the time of availing Rs.2 lakhs from the husband of complainant, he had issued the disputed cheque i.e., Ex.P1 and blank signed bond paper i.e., Ex.P11 as a security and Judgment 17 C.C.2833/2010 after repayment of loan he requested the husband of complainant to return the blank signed cheque and blank signed bond paper, which was not returned by the husband of complainant. The complainant knowingly the defence of accused, has not made any attempt to lead evidence of her husband at least to deny the defence taken by the accused in this case. The complainant is house wife and she has no independent source of income to pay the amount of cheque to the accused. The complainant has not produced the salary certificate of her husband to show her financial capacity to pay the amount of cheque. If we perused the Exs.P12 to P15, those documents reveals that, the complainant and her husband have sold the property total worth of Rs.16,85,000/- in the year 2006 and there is no explanation regarding remaining amount of Rs.18,15,000/- alleged to be paid to the accused.
18. The accused by filing application under RTI Act has got Ex.D3 - Salary Certificate of complainant husband which discloses that, in the month of September 2006 the husband of complainant was getting of Rs.13.036/-. Therefore, it is highly impossible for the complainant to pay Judgment 18 C.C.2833/2010 an amount of Rs.35 lakhs as a sale consideration to the accused. Moreover, the Ex.P11 is a created and not trustworthy document. The claim of complainant is based on Ex.P11 which is not a trust worthy document and therefore, it cannot be said that the complainant has paid the advance sale consideration amount of Rs.35 lakhs to the accused and it cannot be said that, the accused cancelled the sale deed by making shara on Ex.P11 and has issued the disputed cheque to discharge legally enforceable debt. In order to draw a mandatory presumption under Section 139 of N.I.Act, the complainant is required to prove the existence of legally recoverable debt from the accused.
In Criminal Appeal No.2402 of 2014, between K.Subramani V/s K.Damodara Naidu. In the said ruling the Hon'ble Apex Court confirmed the Judgment of Trial Court acquitting the accused on the ground of capacity to pay the amount of cheque. In the above said ruling the Trial Court acquitted the accused on the ground that the complainant had no source of income to lend sum of Rs.14,00,000/-. In the appeal the 1st Appellate Court set Judgment 19 C.C.2833/2010 aside the order and remanded the matter to the Trial Court to give an opportunity to complainant to prove the same. The accused went in appeal before the Hon'ble Apex Court and the Hon'ble Apex Court has set aside the order of the 1st Appellate Court and upheld the acquittal order passed by the Trial Court.
19. In the present case, the complaint has failed to prove that he has capacity to pay the amount of cheque.
The Hon'ble Apex Court in para No.6 on page 5 stated that, "the trial court never proceeded on the assumption that the presumption under Section 139 of the N.I.Act would enure to the benefit of the complainant only if he proves his financial capacity and on the contrary the trial court had for reasons recorded found that the accused has rebutted the presumption by placing cogent evidence that there was no legally recoverable debt or liability and the complainant had no capacity to lend huge amount of Rs.14,00,000/- and, accordingly, dismissed the complaint by acquitting the accused".
20. The accused has rebutted the presumption available to complainant under Section 139 of Negotiable Instruments Act. The complainant has miserable failed to prove that she is capacity to pay the amount of cheque to Judgment 20 C.C.2833/2010 the accused. Therefore, the complainant has failed to prove the offence against the accused. Hence, in view of the above said reasons, I hold point Nos.1 and 2 in the Negative.
21. Point No.3: In view of my findings on point Nos.1 and 2, 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 the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 17th day of March - 2015) (L.R. KURANE) XXIII Addl. Chief Metropolitan Magistrate, Bangalore.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Chandramma
PW.2 : Usha.M.G
PW.3 : Puttaswamy
Judgment 21 C.C.2833/2010
List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Exs.P4 to P6 : Postal Receipts Exs.P7 & P8 : Postal Acknowledgment Cards Ex.P9 : Reply Notice Ex.P10 : Complaint Ex.P11 : Agreement of Sale Ex.P11(a) : Signature of PW.1 Exs.P11(b) to (E) : Signatures of DW.1 Ex.P11(f) : Signature of PW.3 Ex.P11(g) & (h) : Signatures of PW.2 Ex.P11(I) : Signature of Venugopal Ex.P12 : Certified copy of Sale Deed dtd:14.02.06 Ex.P13 : Certified copy of Sale Deed dtd:06.02.06 Ex.P14 : Certified copy of Sale Deed dtd:31.03.05 Ex.P15 : Certified copy of Sale Deed dtd:27.09.06 Ex.P16 : Payslip Ex.P17 : Letter
List of Witnesses examined on behalf of the defence:
DW.1 : Balachannaiah DW.2 : Channakeshavalu
List of Exhibits marked on behalf of defence:
Ex.D1 : Certified copy of Sale Deed dtd:09.06.03 Ex.D2 : Certified copy of Sale Deed dtd:15.12.08 Ex.D3 : Form of the sale details Ex.D4 : Form-A of RTI Act Ex.D5 : Postal Acknowledgment Card Ex.D6 : Copy of legal notice XXIII Addl. Chief Metropolitan Magistrate, Bangalore.