Bangalore District Court
Sri. Beereshwara Souhard vs Sridhar H.C on 30 April, 2015
THE COURT OF THE XXVI ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 30th day of April 2015
PRESENT:SMT.SUMANGALA S.BASAVANNOUR B.Com.
LL.M XXVI Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C
Case No. : C.C No.8730/2012
Complainant : Sri. Beereshwara Souhard
Credit Sahakari Ltd.,
Branch Office, No.32, HIG
1st Phase, 9th A Cross,
Yelahanka New Town
Bangalore-64
By its Manager
Praveen Chidananda Tore
(By Sri.hjn Adv.)
Accused : Sridhar H.C.
S/o. Chinnappa Reddy
R/at. No. 4018,
Hosur Gate Village,
Electronics City Post,
Bangalore -100
(By Sri. VM Adv.)
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Acquitted.
Date of Order : 30.04.2015
2 C.C.No.8730/2012
JUDGEMENT
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. The brief facts of the complainant's case are as follows:
The Complainant is the Branch of Sree Beereshwara Souharda Credit Sahakari Limited, Examba, Chikkodi Taluk, Belguam Dist. Registered under the Karnataka Souhard Sahakari Act, and is running banking related activities in various fields by extending loans. The Accused has approached the Complainant seeking financial assistance for an over draft facility loan. After the formalities and verification of records placed by the Accused, the Complainant has agreed to extend the loan. The sanctioned ceiling limit of the financial facility was stipulated up to Rs. 1,75,00,000/- and the time limit stipulated for availing the facility was fixed for two years. The Accused had entered into an agreement on 16-06-2009 governing the said loan. Since, 16-06-2009, the Accused has benefited on several transactions with the facility availed by him with the 3 C.C.No.8730/2012 Complainant. After appropriating he loan facility as availed the Accused has committed default in repayment and as on 12.09.2011, the Accused was required to pay to the Complainant Rs.1,27,52,342 with interest. Upon demanding on the amount as mentioned above, the Accused has assured the payment by way of cheque for which Complainant has agreed. For the due discharge of the liability, the Accused had issued a cheque bearing No. 072720 dated 12.09.2011 drawn on Bank of Baroda Singena Agrahara Branch, Bangalore for a sum of Rs.1,27,52,342/-
in favour of Complainant with an assurance that the same would be honoured on its presentation. On keeping the assurance given by the Accused, the Complainant has presented the cheque for encashment on its banker viz. Indian Bank, Yelahanka Branch, Bangalore only to receive it dishonoured for the reason "Account Inoperative / Dormant"
vide dishonour memo dated 13.09.2011. The Complainant has addressed a notice dated 12.10.2011 demanding the Accused to pay the amount covered under the cheque. The said notice was addressed to the known residential addresses of the Accused. The registered notice was served on the Accused on 13.10.2011 and the acknowledgement bears the 4 C.C.No.8730/2012 name of Manjula. Inspite of service of notice, the Accused has not paid the amount covered under the cheque. Even after the receipt of the notice of demand under the law, the Accused has failed to pay the amount within 15 days from the date of receipt fo the said notice and hence committed an offence punishable under section 138 of the Negotiable Instruments Act, 1881.
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 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, its Manager Sri. Praveen Chindananda Tori examined as PW.1 and got marked Ex.P1 to P19 and this PWs.1 has been fully 5 C.C.No.8730/2012 cross-examined by the accused counsel and thus, the complainant closed his side evidence.
5. Thereafter, the statement of accused u/s 313 Cr.P.C is recorded, in which, he totally denied the entire case of the complainant. In support of the denial of the case of the accused, he too examined himself as DW.1. and also examined his father as DW2. Thus, DW.1 and DW2 have been fully cross-examined by the complainant's counsel and thus, the accused also closed his side evidence.
6. Hears both sides
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 a cheque bearing No.072720 dated 12.09.2011 for a sum of Rs. 1,27,52,342/- drawn on Bank of Baroda, Singena Agrahara Branch, Bangalore, the same is dishonoured for want of sufficient funds and inspite of issuance of legal notice, the accused did not comply or reply to the notice and thus, he has committed an offence punishable u/s 138 of N.I.Act?
6 C.C.No.8730/2012
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: It is the case of the Complainant that, the Accused has approached the Complainant seeking financial assistance for an over draft facility loan. The Complainant has agreed to extend the loan. The sanctioned ceiling limit of the financial facility was stipulated up to Rs.1,75,00,000/- and the time limit stipulated for availing the facility was fixed for two years. The Accused had entered into an agreement on 16-06-2009 governing the said loan. Since, 16-06-2009, the Accused has benefited on several transactions with the facility availed by him with the Complainant. After appropriating the loan facility as availed, the Accused has committed default in repayment and as on 12.09.2011, the Accused was required to pay to the Complainant Rs.1,27,52,342 with interest. The Accused has assured the payment by way of cheque for which Complainant has agreed. For the due discharge of the 7 C.C.No.8730/2012 liability, the Accused had issued a cheque bearing No. 072720 dated 12.09.2011 drawn on Bank of Baroda, Singena Agrahara Branch, Bangalore for a sum of Rs.1,27,52,342/-. The Complainant has presented the cheque for encashment on its banker viz. Indian Bank, Yelahanka Branch, Bangalore only to receive it dishonoured for the reason "account inoperative / dormant vide dishonour memo dated 13.09.2011. The Complainant has addressed a notice dated 12.10.2011 demanding the Accused to pay the amount covered under the cheque. The registered notice was served on the Accused on 13.10.2011. Even after the receipt of the notice of demand under the law, the Accused has failed to pay the amount within 15 days from the date of receipt of the said notice and hence, committed an offence punishable under section 138 of the Negotiable Instruments Act, 1881.
10. The complainant to substantiate its case, examined its Manager Praveen Chidananda Tori as PW1 and got marked Ex-P1 to P19. PW1 in his evidence reiterated the averments of the complaint and got marked Cheque at Ex.P1, Signature of the accused at Ex-P1(a), The bank endorsement is marked at Ex-P2. The office copy of the legal notice issued to Accused is marked at Ex-P3. The postal Receipt is marked at Ex-P4, 8 C.C.No.8730/2012 Postal acknowledgement is marked at Ex-P5. The complaint is marked at Ex-P6, Original Loan application at Ex-P7, Loan agreement at Ex-P8, Sanction Letter at Ex-P9, Statement of Loan Account at Ex-P10, Ex-P11 to P19 11 withdrawal slips.
11. On the other hand, Accused himself examined as DW1 and deposed that, he is not the member of the Complainant society, he is not the share holder of the Complainant society, he has not filed application for seeking loan. He do not know who has filed Ex-P7 to Ex-P9 and who has filled the contents of Ex-P7 to Ex-P9 and signature found on Ex-P7 to P9 are not pertains to me. He is assisting his father in his business. He has studied up to SSLC. He has not the owner of the movable or immovable property. He has not doing any independent business.. His father had opened the SB account in his name in Bank of Baroda. He is depositing the amount in said SB account which had given by his father. Only with instruction of his father he is withdrawing the amount from the said account. In the first week of month of September 2011 at 8.00 a.m his father instructed him to withdraw the amount further said SB account, so he had kept the cheque book on the TV table in his house and went outside to look after the other works. He 9 C.C.No.8730/2012 returned at 10.30 or 11.00 and saw that one cheque leaf was misplaced or stolen. On that day his brother in law Govinda Reddy came to his house at 9.00 a.m. He was stolen the cheque leaf from his cheque book. The said Govinda Reddy is a member of Complainant society and he had transaction with Complainant society. He had not filled the cheque leaf, Ex-P1(a) signature does not pertains to him. After receiving the summons from this Court he came to know that his cheque leaf is misused by Govind Reddy. He had not given the complaint regarding misplaced or stolen cheque leaf. He has not lodged the complaint since his father has told him not to lodge the complaint as Govinda Reddy is his son in law. Ex-P5 contains signature of his mother. He is not legally liable to pay any debt Complainant society.
12. The Accused contention that, PW1 is not authorized to file the complaint and deposed on behalf of the Complainant society. Perused the complaint it revels that, PW1 Praveen Chidanand Tori filed the complaint on behalf of the Complainant society. PW1 in cross-examination stated that, the Complainant bank has issued the authorization letter in his favour to prosecute his case and also deposed that, he has not produced the authorization letter before this 10 C.C.No.8730/2012 court In cross-examination he has admitted that, on the date of filing of the affidavit in the form of chief examination the Complainant branch was not working at Yelahanka town and on 31.08.2008 Yelahanka and Chickballapur branch merged since they have filed a complaint in 2011, so, they have shown the addressed is his affidavit at Yerlahanka New and he was working from 2009-10 in Yelahanka Branch. In this regard the Accused counsel relied the decision reported in 2001 CLJ 2178.
13. It is clear that, after filing of this complaint the Complainant bank merged with Doddaballapur branch. Though, on the date of filing the affidavit in the form of chief - examination by the PW1 the Complainant society in not in existence but PW1 falsely stated that he is working as Manager at Complainant society. On the contrary himself stated that, he was working as a Branch Manager at Yelahanka Branch 2009-2010. So, on the date of Complainant evidence, Complainant society is not in existence. Of course the Complainant society is merged with the another branch but the Complainant is not chosen to substitute the Complainant by filing the application. And further PW1 clearly stated that, they have not issued any 11 C.C.No.8730/2012 notice to the Accused regarding merging of Yelahanka branch with Doddaballapur branch and he also clearly stated that, he has not reported regarding the Complainant society with Doddaballapur branch. The question arise before this court, once the Complainant society is not in existence can he continue the case against the Accused and further PW1 is also falsely stated in his affidavit as he is working as Manager at Complainant society, though he had knowledge of merging the Complainant society with the Doddaballapur branch.
14. I relied the decision reported in ILR 2014 KAR 2168 CREF Finance Limited, Kolkata Vs. Sree Shanthi Homes Pvt Ltd., Bangalore and another A) NEGOTIABLE INSTRUMENT ACT, 1881- SECTION 138 -offence under-Complaint file by the Company- Complaint signed by 'X' who has not authority in law to file the complaint- Maintainability of the complaint -HELD , The complaint instituted by the appellant in the Trial Court is not maintainable for the sole reason that "X' who has signed the complaint has no authority in law to represent the Company as there is no Resolution by the Company authorizing 'X' to file the complaint.
15. I relied in the decision reported in 2008 CRI.L.J.998 (Karnataka High Court) Om Shakthi SC/ST and Minority 12 C.C.No.8730/2012 Credit Co-operative Society Ltd. Vs.M.Venkatesh. Crl.Appeal No.1065 of 2005. D/-5-10-2007 (A) Negotiable Instruments Act (26 of 1881) S.142-Cheque dishonour complaint-Cannot be presented by a person other than payee or holder in due course and their authorized agents, power of attorney holder. (B) Negotiable Instruments Act (26 of 1881)S.142-Cheque dishounour complaint-Filed by Firm, Society, Company by president, Secretary, Director, Employee without authorization or power of attorney-is not maintainable. 5(b) Whether a complaint for an offence punishable under section 138 of the NI Act filed by a Firm, Society, Company by President, Secretary, Director, Employee without authorization or power of attorney is maintainable?-No.
16. I relied the decision reported in 2008 CRI.L.J.157 Director, Maruti Foods and Farms Pvt Ltd Vs.Basanna Pattekar.
Cri. Appeal No.1780 of 2006 D 5-6-2007 Negotiable Instruments Act (26 of 1881) S.138- Cheque dishonour proceedings complainant is company Authority of Director of company to depose on behalf of company-No documentary evidence to show that he is Director and he has been authorized to depose on behalf of company
-resolution of company is not produced and he has pleaded his ignorance in cross-examination about resolution passed by Board of Directors- Acquittal of accused. Proper.
17. I relied the decision reported in DCR 542 Andhra Pradesh High Court, Decided on 28th November, 1996 Criminal Appeal No.180 of 1995 13 C.C.No.8730/2012 M/s Sathish and Company Vs. M/s S.R.Traders & Ors Negotiable Instruments Act, 1881-Section 138 & 141-Complaint by company-Any officer of the company who is duly authorized by company to initiate proceedings can file complaint -He must be a person whose action would be binding on company-complaint filed by Manager of the company-Designation "Manager" does not clothe person with all powers to file complaint for or on behalf of company unless there is specific authorization-Subsequent ratification can not revive complaint-Impugned order or trial court acquitting accused suffered no illegality.
18. In this regard I relied the decision reported in ILR 2007 KAR 3155 (Director, Maruti Feeds and Farms Pvt Ltd Vs. Basanna Pattekar) wherein it is held that "the company is a juristic person and any person on behalf of the Company has to be authorized by the Company under Articles of Association or by a separate resolution to depose on behalf of the company".
19. In the instant case, PW1 himself admitted that, he has not produced the authorization letter. PW1 deposed that, he was working as a Manager at Complainant society. In spite of suggestion by the Accused counsel Complainant is not chosen to produce the authroisation letter and resolutions of the society to shows that, PW1 is authorized to file the 14 C.C.No.8730/2012 complaint on behalf of the Complainant society and deposed before this court on behalf of the society. It is clear that, PW1 has no authority to deposed on behalf of the society and on the date of the complaint he has no authority to file the complaint and sign the complaint. On the strength of the above said decisions and discussion I hold that in the absence of the authority the complaint itself is not maintainable in the eye of law.
20. Now I would like to consider the case on merits.
21. In this case it is admitted fact that, the cheque Ex- P2 pertains to the Accused. The contention of the Accused that, the disputed cheque Ex-P2 has not issued by him to discharge of the loan amount but the said cheque was stolen from his house by his brother in law one Govinda Reddy is a member of the Complainant society. And also contended that he is not filled the cheque leaf. After receiving the summons from this Court he came to know that his cheque leaf is misused by Govind Reddy. And he also examined his father as DW2, in his support of his contention, DW2 deposed that, his son is studied upto SSLC. No movable or immovable 15 C.C.No.8730/2012 property are standing in the name of the Accused. He son is not doing independently any business or job. Either his son or he himself is not income tax assessee. Accused is not member of the Complainant society. Accused is not shareholder of the Complainant society. Accused is not having SB account in Complainant society. He has not aware of that the Accused has obtained a loan of Rs. 1,75,00,000/- . After receiving the summons from this Court he came to know regarding the loan transaction. Accused is having SB account at State Bank of Baroda at Singena Agraha Branch. Accused use to deposit the amount in the SB account out of his income. In the year 2011 he asked his son to withdraw the amount from his account. So. Accused kept the cheque book near the TV and gone outside, at that time his son is law Govindareddy was came to his house and took one cheque leaf from the cheque book and at that movement we had no knowledge what he has done regarding the cheque. Later his son informed that Govindareddy has been took a cheque leaf from the cheque cheque book. He has not ledged the Complaint regarding stolen of the cheque leaf due to fear of the family respect. Accused has not liable to pay any legally recoverable debt.
16 C.C.No.8730/2012
22. In this case Accused contention that, he has not borrowed a loan from the Complainant society. It is the contention of the Accused he is not the member of the Complainant society, he is not the share holder of the Complainant society, he has not filed application for seeking loan. He do not know who has filed Ex-P7 to Ex-P9 and who has filled the contents of Ex-P7 to Ex-P9 and signature found on Ex-P7 to P9 are not pertains to me. Ex-P1(a) signature is not pertains to him. It is also contention of the Accused that, his brother in law Govindareddy stolen disputed cheque from his house and same is misused by the Govinda Reddy and he has not filled the cheque leaf.
23. Perused Ex-P7 to P9 loan application, it reveals that, the name of the applicant is Sridhar H.C. s/o. H.C. Channappa Reddy No. 4018, Hosur Gate, Hosur Road, Electronics City Post, Bangalore. The purpose of loan is development of business but the page No.2 are not filled and page No.3 regarding information of the guarantor and surety columns are also kept blank.
24. Ex-P8 Loan agreement in clause No.2 it reveals that, " ¸Á®UÁgÀ£ÁzÀ £Á£ÀÄ £ÀªÀÄä ¸Á® CfðAiÀÄ ªÉÄÃgÉUÉ £À£ÀUÉ gÀÆ . 1,75,00,000.00 ªÀiAdÆgÀÄ ªÀiÁrzÀÄÝ ¸ÀzÀj 17 C.C.No.8730/2012 ¸Á®ªÀ£ÀÄß £Á£ÀÄ F ¢£À ¸ÀºÀPÁj¬ÄAzÀ gÉÆÃR ¥ÀqÉzÀÄPÉÆArgÀÄvÉÛÃ£É . ¸ÀzÀj ¸Á®ªÀ£ÀÄß £Á£ÀÄ ªÁå¥ÁgÀ GzÉÝñÀPÁÌV G¥ÀAiÉÆÃV¸ÀÄvÉÛãÉ. "
25. Ex-P9 loan sanction letter it reveals that, Rs.1 Crore 75 Lakhs over draft loan sanction in favour of Sridhar H.C. it also reveals that, "¸Á®zÀ CfðUÀ¼À£ÀÄß ¸ÀA¥ÀÇtðªÁV ¨sgÀt ªÀiÁqÀ¨ÉÃPÀÄ. ¸Á®zÀ CfðUÀ¼À ªÉÄÃ¯É ªÀÄvÀÄÛ E¤ßvÀgÀ PÁUÀzÀ ¥ÀvÀæUÀ¼À ªÉÄÃ¯É ¸Á®UÁgÀgÀ ªÀÄvÀÄÛ eÁ«ÄãÀÄzÁgÀgÀ ¸À»UÀ¼À£ÀÄß vÀ¥ÀàzÉ ¥ÀqÉAiÀÄvÀPÀÌzÀÄÝ ¸Á®UÁgÀgÀ ªÀÄvÀÄÛ eÁ«ÄãÀÄzÁgÀgÀ ¸À» ºÉ§âlÄÖ EzÀÝ°è, zÀ¸ÀÆÛgÀ ¸À» vÀ¥ÀàzÉ ¥ÀqÉAiÀĨÉÃPÀÄ. ±ÁSÁ ªÀåªÀ¸ÁÞ¥ÀPÀgÀAvÁ ªÀÄÄ¢Ûw¬ÄgÀĪÀ eÁUÀzÀ°è ºÁUÀÆ ¸Á®zÀ CfðUÀ¼À eÉÄÁvÉ ®UÀwÛ¸ÀĪÀ ¸Á®zÀ CfðAiÀÄ «ªÀgÀzÀ ªÉÄÃ¯É PÀqÁØAiÀĪÁV ±ÁRÁ ªÀåªÀ¸ÁÞ¥ÀPÀgÀÄ ªÀÄÄzÉæAiÉÆA¢UÉ ¸À» ªÀiÁqÀvÀPÀÌzÀÄÝ. WÀluÉÆvÀÛgÀ ªÀÄAdÆgÁwUÁV PÀ¼ÀÄ»¹zÀ ¸Á®UÁgÀgÀÄ AiÀÄÁªÀÅzÀÉà PÁgÀtPÀÆÌ F »AzÉ ¥ÀqÉzÀÄPÉÆAqÀ ¸Á®QÌAvÀ ºÉaÑUÉ ¸Á® ©qÀÄUÀqÉ ªÀiÁqÀvÀPÀÌzÀÝ®è . MAzÀÄ ªÉÃ¼É ºÀaÑUÉ ¸Á® ©qÀÄUÀqÉ ªÀiÁrzÀ°è CAvÀºÀ ¸Á®UÀ½UÉ ±ÁSÁ ªÀåªÀ¸ÁÞ¥ÀPÀgÉ dªÁ¨ÁÝgÀgÀÄ.
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WÀl£ÉÆvÀægÀ ¸Á® ªÀiÁqÀĪÁUÀ ¸Á®UÁgÀgÀÄ £ÀªÀÄä ¸ÀºÀPÁjUÉ F ªÉÄÁzÀ®Ä ¸Á®zÀ ¨ÀszÀævÉUÉ ¤ÃrzÀ J®è d«ÄãÀÄ D¹ÛUÀ¼À ªÀÄ£É D¹ÛUÀ¼À GvÁgÁ ¤ÃrzÀ §UÉÎ ªÀÄvÀÄÛ ¸ÀzÀgÀ J®è 18 C.C.No.8730/2012 D¹ÛUÀ¼À ªÉÄÃ¯É ¸ÀºÀPÁjAiÀÄ ¸ÀgÀ¼À vÉÆÃgÀªÀwÛ ¨ÉÆÃeÁ zÁR¯ÁzÀ §UÉÎ zÁR¯Áw ¥ÀvÀæUÀ¼À£ÀÄß CxÀªÁ RÄt¨sÁgÀ ¥ÀæªÀiÁt ¥ÀvÀæ ( J£ÀPÀªÀÄgÀ£ïì £ÀªÀiÆ£É £ÀA. 15) zÀ ªÉÄÃ¯É ¸ÀºÀPÁjAiÀÄ ºÉ¸ÀgÀÄ £ÀªÀÄÆzÁzÀ §UÉÎ RavÀ ¥Àr¹PÉÆAqÀÄ ¸Á® ¤ÃrvÀPÀÌzÀÄÝ.
26. Ex-P10, statement of account discloses that, drawing limit Rs.1,75,00,000/- it also reveals that, total Rs. 1,04,57,700/- was disbursed by the Complainant society.
27. In this case, the burden is casted upon the complainant to prove beyond all reasonable doubt that, Ex.P.1 cheque bg.No.072720 dated 12.9.2011 for Rs.1,27,00.342/- drawn on Bank of Baroda, Singene Agrahara Branch, Bangalore t towards the discharge of the legally recoverable debt. It is fundamental basic principle which has been propounded by different ruling of the Apex Court and High Courts, that proof that is required to be placed before court by complainant in order to get the case convicted must be beyond all reasonable doubt. On the other hand, to rebut the case of the complainant on any presumption under law, the accused need not be called upon to prove his case beyond all reasonable doubt. But if he places some material before the court, which are sufficient to dislodged the presumption by means of preponderance of 19 C.C.No.8730/2012 probabilities that would be suffice the responsibility of the accused in discharge his liability. Therefore, in this case, the court has to see whether the accused has places sufficient materials to come to the conclusion that by means of preponderance of probabilities the accused has successfully rebutted the presumption raised under Sec. 139 of N.I Act.
28. In the present case, Ex.P.7 loan application according to PW1 filed by the accused and on the basis of this application they have sanction OD facility of Rs.1,75,00,000/-. On perusal of this application except the signature of the borrower we do not find signatures of the sureties are found. Further this application does not discloses any property particulars which was collected by the complainant society for the security of the OD facility. Ex.P.8 loan agreement also contains the clause regarding particulars a of movable and immovable property furnished for the security of the loan but these columns are kept blank it also discloses that loan repayable date 16.6.2011 in one time i.e. Rs.1,75,00,000/-. As per Ex.P.9 after sanctioning the OD facility of Rs.1,75,00,000/- committee directed the Manager that loan cannot be sanctioned without prior permission by following the rules and regulations of loan and 20 C.C.No.8730/2012 also directed to not release the loan amount without complying the rules and regulations of the loan. If the manager has sanctioned/released the loan amount by not following the rules and regulations of the loan, the Manager is liable. And application shall be filled fully by the borrower and it is also mandatory to obtain the signature of the borrowers and guarantors and it is also directed to obtained the documents pertaining to the immovable property and to collect the photos of the Manager on the property which is furnished as security.
29. During the course of cross-examination of PW1 it clearly admitted that as per Ex.P.8 column No.1 to 4 they have not obtained any documents and he has also stated that accused promised that he will furnish 2 sureties but he has failed to furnish the sureties as per Ex.P.8 surety letter. He did not remember how many days the accused has sought to furnish surety from the date of sanction of the loan since the accused has not furnished the surety within a period as agreed, they have not intimated the accused as signatures of the accused has not furnished. And he has also stated that he cannot say how much amount of loan was released within 20 days. He also admitted that, as per Ex.P.9 clause (3) after 21 C.C.No.8730/2012 collecting the Encumbrance certificate only, loan should be sanctioned.
30. Further, PW1 stated the accused was nominal member of the complainant society. The nominal member has no voting power only he has the right to transaction with the Society. He also stated the nominal members are also having authority to avail the OD facility like regular member. He also admitted that, without collecting the share amount they have permitted to open the SB Account. They have not collected the IT returns of the accused and they have not collected the pan number of the accused. He has also admitted that, their society has sanction the loan to the accused without any project report estimated earlier to the earlier loan transaction records etc., As per the bye-law the Management has power to obtained the loan application from the accused for sanction of Rs.1,75,00,000/- except loan application he has not obtained any other documents from the accused earlier to the sanction of the loan they have visited the house of the accused at that time, he has observed the vehicle parked in front of the accused house. He has not verified the RC and DL of the vehicles. He also stated that he do not remember the date, month or year of the approval from 22 C.C.No.8730/2012 the Head Office, after one and half months he has received the approval from the Head Office and he cannot say the month of approval without seeing the documents. He has received the approval from the Head Office in writing under letter Head. He do not know as per the bye-law what are the documents required for sanction of loan. He has also stated that before sanctioning the loan they have not enquired the repayment capacity of the accused and they have not collected the house properties details and he has not enquired who is the owner of the residential house of the accused and he has not enquired the family background of the accused prior to sanctioning of loan.
31. Perused the Bye-laws of the complainant society. Bylaws Chapter 2 Rules 4 (12) it defines that, a member of the society means the person who is invested the amount initially in share and after registration if any person was holding at least one share that person is called " ¸ÀzÀ¸Àå"
Chapter 4 also discloses that, "¸ÀzÀ¸ÀågÁUÀ §AiÀĸÀĪÀªÀgÀÄ ¤UÀ¢ü¥Àr¹zÀ ±ÉÃgÀÄ ±ÀÄ®Ì ªÀÄvÀÄÛ ¥ÀæªÉñÀ ±ÀĮ̪À£ÀÄß ºÁUÀÆ PÀ¤µÀÖ MAzÀÄ ±ÉÃj£À ¥ÀÇtð ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁr °TvÀ gÀÆ¥ÀzÀ°è Cfð ¸À°è¸À¨ÉÃPÀÄ. ¸ÀzÀ¸ÀåvÀézÀ §UÉÎ §A¢gÀĪÀ ¥ÀæwAiÉÆAzÀÄ CfðAiÀÄ£ÀÄß ¤zÉðñÀPÀ ªÀÄAqÀ½AiÀĪÀgÀÄ CAVÃPÀj¸ÀĪÀ CxÀªÁ wgÀ¸ÀÌj¸ÀĪÀ C¢üPÁgÀ ¥ÀqÉ¢gÀĪÀgÀÄ. ¸ÀzÀ¸ÀåvÀéªÀ£ÀÄß wgÀ¸ÀÌj¹zÀÝgÉ ¸ÀzÀ¸ÀåvÀPÁÌV C¨ÀsåyðAiÀÄÄ ¸À°Ìè¹zÀ ¥ÀÇtð ºÀtªÀ£ÀÄß ªÁ¥À¸ï ªÀiÁqÀ¨ÉÃPÀÄ. F §UÉÎ ¤tðAiÀÄ PÉÊ UÉÄÁAqÀÄ ªÀÄÆgÀÄ wAUÀ¼À°è CAvÀºÀ C¨ÀsåyðUÉ CªÀ£À Cfð wgÀ¸ÀÌøvÀªÁzÀ §UÉÎ w¼À¸ÀvÀPÀÌzÀÄÝ. 23 C.C.No.8730/2012
32. In its by-law I do not find any word as nominal member only we find the member which means the person who has purchased the share at least one share. But in the present case, according to PW1 accused has nominal member and he has also entitled for all facilities like member of the society. But Complainant society has not filed any application to show that the accused is member or nominal member of the society. And admittedly the accused has not purchased any share from the complaisant society before opening the SB account at the complainant society. According to complainant society they have sanctioned Rs.1,75,00,000/- OD facility to the accused. PW1 has stated that the accused has operated the account for 2 years. But the complainant society has failed to produce the track of records account of the accused, which is mandatory to grant he OD facility. Admittedly, the complainant society not collected the IT returns, pan card number and also not enquired the financial capacity of the accused to repay loan amount and it is also admitted fact that, complainant society has not collected any property documents for security of the loan granted. It is very surprise that the loan amount is such a huge amount i.,e Rs.1,75,00,000/-. The complainant society 24 C.C.No.8730/2012 has not collected any information of the accused regarding the financial capacity and also not obtained any property documents and also not obtained any sureties though as per Ex.P.9 the complainant society should collect the documents and obtained the details of the property in the loan application and signature of the sureties. But on the contrary the PW1 stated that they have directed the accused to furnish the surety but the accused failed to furnish the surety. If the accused has not complied the direction issued by the complainant society why / how the complainant society has disbursed the amount in different stages to the accused. And further, Ex.P.9 clearly shows that if the borrower has not complied the rules and regulations of the society, inspite of that, the Manager has disbursed/released the loan, the Manager is liable to pay the said loan. Inspite of this riding clause in Ex.P.9 on the manager of the complainant society has not colleting the documents as mentioned in Ex.P.9. Further, the complainant society has failed to produce the approval letter issued by the Head Office and PW1 categorically stated that he did not remember the date, month and year of the approval of the loan. 25 C.C.No.8730/2012
33. Accused relied the decision reported in 2012 Cri.LJ 804 in the case of Moodalappa vs. C.A. Chowrappa Negotiable Instruments Act. S- 138 -
Dishonour of cheque legally enforceable debt - Loan transaction - Accused given a blank cheque as a security against long transaction - There was no writings on the cheque except signature of Accused - Amount on cheque was type written - Accused was literate man and knows how to read and write had not written cheque in his own writing - Moreover amount shown in cheque was much more than given in loan - entire transaction shrouded with suspicion - complaint failed to establish that there was legally enforceable debt or liability - Acquittal of Accused proper.
34. Accused relied another decision reported in ILR 2008 Kar. 4629 in the case of Shiva Murthy vs. Amruthraj Negotiable Instruments Act 1881, - Section 138 offence under - complaint - Conviction and Sentence - Confirmed in Appeal - Revision Against - Production of additional documents before the Appellate Court - Non consideration of - Existence of legally enforceable debt failure of the Complainant to prove.
Under section 139, the Courts ought to have considered as to whether the Complainant has proved the existence of legally enforceable debt.
35. On the strength of the above citations and as above discussed I hold that, above facts are created doubt regarding the sanction OD facility to the Accused.
36. Ex.P.10 statement of loan account, it does not bare the certificate required under Bankers book evidence act. In 26 C.C.No.8730/2012 the absence of the certificate as required under (2) of Bankers Books evidence act, the statement of account Ex.P.10 is not sanctity in the eye of law. IN the absence of statement of account we cannot hold that the complainant society has disbursed the amount on different stages to the accused i.e., total of Rs.1,25,00,000/-.
37. In this regard I relied the decision reported in III (2006) BC 248 (DRAT/DRT) Debts Recovery Appellate Tribunal - Mumbai in the case of Dena Bank vs. Bankim Mehta & Ors.
"That statement did not bear certificate required to be furnished under Banker's Book Evidence Act and not admissible in evidence - Once statement of accounts excluded, nothing on record from which liability of defendant No.1 could be ascertained - Applicant - Bank failed in proving certain amount was outstanding on date of filing of application"
7. It was pointed out that it was against the guidelines issued by Hon'ble Supreme Court in the case of Central Bank of India v. Ravidndra I (2002) BC 150 (SC) =VII(2001) SLT 400=IV (2001) CIT 127(SC) = AIR 2001 SC 3095. It was pointed out that the statement did not even bear the certificate, which was required to be furnished under the Bankers Book Evidence Act. It was, therefore contended that the said statement of account as not admissible at all.
8. It appears that the applicant bank adopted very casual approach. This attitude of the applicant bank leaves much to be desired.
c. Once the statement of account was excluded, there was nothing on record from which the liability of the defendant No.1 could be ascertained or it could be said that a certain 27 C.C.No.8730/2012 amount was due on the date of filing of the application.
38. In the instant case statement of account Ex-P10 is not bear the certificate which is required to be furnished it was therefore the said statement of account has not admissible at all.
39. In the instant case with above discussion, we find series of doubt with regard to the conduct of the complainant society that, in order to suite their convenience they can concoct the document and admittedly, the accused has denied the signatures on Ex.P.7 to P.9 and Ex-P11 to P9 and cheque Ex.P.1. The complainant society has not examined the person who was present at the time of withdrawing the amount as per Ex.P.11 o P.19 and the person who is collected the loan application from the accused. On the other hand, the accused has produced sufficient material to court, to create the series of doubt with regard to the existence of debt or liability pertaining to disputed cheque. Therefore, I hold that the accused has successfully rebutted the presumption U/society139 of N.I Act and 118 of N.I Act. Hence the Complainant is failed to establish that, there was legally enforceable debt or liability and the Accused issued 28 C.C.No.8730/2012 cheque as per Ex-P1 to discharge the legally enforceable debt. Hence , I answer point No.1 in the Negative.
40. 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 for the offence punishable u/s 138 of N.I.Act .
Bail bonds cancelled after expiry of appeal period.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 30th day of April 2015) (SUMANGALA S.BASAVANNOUR) XXVI Addl. Chief Metropolitan Magistrate, Bangalore City.
ANNEXURE Witnesses examined for the Complainant:
PW.1 Praveen Chidanand Tori Witness examined for the accused: DW1 Sridhar H.C. DW2 H.M. Chinnappareddy
List of Documents marked for the Complainant:
Ex.P1 cheque
Ex.P1a Signature of the Accused on cheque
Ex.P3 Bank endorsement
Ex.P4 Postal receipt
29 C.C.No.8730/2012
Ex.P5 Postal acknowledgement
Ex.P6 Complaint
Ex.P7 Original loan application
Ex.P8 Loan Agreement
Ex.P9 Sanction letter
Ex.P10 Statement of loan account
Ex.P11 to 19 11 withdrawal slips
List of Documents marked for the accused:
NIL XXVI ACMM, Bangalore.30 C.C.No.8730/2012
(