Bangalore District Court
Sri. A. Sridhar vs Sri. R. Sudhakar on 27 July, 2015
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 27th day of July 2015
PRESENT: M. RAMESHA B.A., LL.M.,
C/c. XIX ADDL. C.M.M. Bangalore.
C.C.No.16225/2012
Complainant : Sri. A. Sridhar
S/o. Andanappa,
Aged about 29 years,
Resident of No.59/B,
Sharada Nilaya,
Laggere Main Road,
Parvathi Nagar,
Bangalore -560 058.
(Represented by Sri.B. Rangaswamy - Advocate)
Vs.
Accused : Sri. R. Sudhakar
S/o. Late C. Rajachar,
Major,
No.362,1st Floor, 6th Cross,
7th Main, R.P.C. Layout,
Vijayanagar 2nd Stage,
Bangalore -560 040.
(Represented by.Sri.Prabhakara M & Sri.. Manjunath
Naik - Advocate)
Offence complied of : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is Acquitted
Date of Order : 27-07-2015
JUDGMENT
2 C.C.16225/2012 The complainant has filed this complaint U/S. 200 of Cr.P.C., against the accused for the offence punishable U/S.138 of Negotiable Instruments Act ( in short for "N.I. Act").
2. After taking the cognizance of the offence, on being served the summons, the accused was appeared before the court through his counsel and got released him on bail. The substance of accusation was read over and explained to the accused, wherein he pleads not guilty and claimed to be tried.
3. In order to prove his case, the complainant examined as PW.1 and got marked the documents as per Ex.P.1 to Ex.P.10. Thereafter, accused has been examined as required U/S 313 of Cr.P.C., by explaining incriminating evidence appeared against him. Wherein, he denied the entire evidence of complainant. In order to substantiate his defence, accused himself examined as D.W.1 and no documents are marked on his behalf.
4. In this case, the evidence on record shows that summons trial procedure was adopted and not summary trial. As per the judgment passed by their lordships in Cr.R.P. No.1585/2009 on 12.03.2013 of Hon'ble High court of Karnataka, conducting Denova trial does not arises.
3 C.C.16225/2012
5. Complainant's side argument taken as 'heard'. The Learned Counsel for accused has filed his written arguments.
6. Now the points that arise for my consideration are as follows;
POINTS
1. Whether the complainant has made out all the ingredients of Sec.138 of N.I. Act to prove the guilt of the accused?
2. What Order?
Now my answer to the above points is as follows;
1. Point No.1: In the negative
2. Point No.2: As per the final order for the following;
REASONS
7. POINT No.1: I have perused the complaint, oral and documentary evidence available on record. It is the specific case of the complainant that, he is doing business of land development having concern of Andanappa Developers. The accused is having known to the Complainant, had approached the Complainant and assured him to procure the land required for Complainant for development project. Further accused asked to advance the amount of Rs.8,00,000/- for purchase the land. Accordingly, reposing faith on the accused that he would procure the required land for Complainant, he had paid sum of Rs.8,00,000/- to the accused. After receiving the amount, accused has not shown any 4 C.C.16225/2012 progress towards procuring the required land for Complainant and the accused failed to materialize the transaction. Accordingly, accused had agreed to return amount received from the Complainant and had issued two cheques vide bearing No. 688118 dtd. 25.2.2012 for Rs.3,00,000/- and cheque bearing No.688119 dtd. 25.2.2012 for Rs.5,00,000/-, both the cheques were drawn on Syndicate Bank, RPC Layout branch, Bangalore. When the Complainant presented the said cheques for realization, it was dishonoured for the reason "Funds insufficient". Thereafter, inspite of issuing the Demand Notice to the accused, neither he replied the notice nor paid the amount of cheque. Hence the present case.
8. In support of his case, the complainant has filed his affidavit evidence, in which he reiterated the contents of Complainant as well as the Legal Notice and also produced the documents. Ex.P.1 and Ex.P2 are the cheques in question said to have been issued by the accused, Ex.P.3 & 4 are the bank endorsements, which reveals that the Ex.P1 & Ex.2 cheques were dishonoured for the reason "Funds insufficient", Ex.P.5 is office copy of the demand notice, Ex.P.6 and Ex.P7 are the postal receipts for having sent the notice to the accused through RPAD. Ex.P8 is the postal acknowledgement. These documents goes to show that after 5 C.C.16225/2012 dishonour of the cheques and after receiving the bank return memos, the complainant had issued demand notice to the accused within time and after completion of 15 days from the date of service of notice, complaint came to be filed in time.
9. On the other hand, Accused has raised the defence that he did not know about the Complainant and he never acquainted with Complainant and for the first time he seen the Complainant before this court only. Further it is contended that the did not have any transaction or business with Complainant and the cheques in question were not belongs to his account and the signature on the cheques also not scribed by him and the he never issued the said cheques to the Complainant.
10. It is pertinent to note that, ordinarily in cheque bouncing cases, what the court has to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act. Once the cheque relates to the account of the accused and he/she accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the court in favour of the 6 C.C.16225/2012 complainant. The presumption referred in Section 139 of the N.I. Act is a mandatory presumption and not a general presumption.
11. In the present case on hand, accused has specifically contended that cheques in question were not belongs to his account and he did not issued the said cheques to the Complainant and he also denied signature on the cheques that he did not scribed the said signatures. When such being the case, the burden lies upon the Complainant to establish the fact that cheques in question are issued by the accused, if it is established by the Complainant that the cheques in question are belongs to the account maintained by the accused and his signature on the cheque, then the penal provisions of Section 138 of N.I. Act will attracts and presumption u/Sec.139 of N.I. Act is to be drawn in favour of Complainant otherwise, if the Complainant proved the fact that cheques issued by the accused were belongs to account of others, then Section 420 of Indian Penal Code will attract.
12. It is pertinent to note that accused has clearly deposed that he did not know about the Complainant, for the first time he has seen the Complainant before this court. Further he specifically deposed that Ex.P1 and Ex.P2 cheques are not belongs to his account and he did not issued the said cheques to the 7 C.C.16225/2012 Complainant. This defence is clearly corroborate the contention raised during the cross-examination of PW1.
13. It is to be taken note of that even though sufficient opportunity has been given to the Complainant but he did not chosen to cross-examine the accused for the best reason known to him, so that, whatever the evidence deposed by the accused is remained un-challenged and the evidence deposed by the accused and the defence taken by him is remained un-shaken. Further it is to be taken note of that failure on the part of Complainant to cross-examine the DW1, is a fatal to the Complainant's case and the defence taken by the accused is remained un-challenged. No doubt, this court is of the clear view that Complainant has utterly failed to establish the fact that cheques in question belongs to the account maintained by the accused and he was issued the said cheques towards discharge of legally enforceable debt or liability. When the accused clearly denied that the cheques in question are not belongs to his account, there is no hurdle for the Complainant to examine the Bank Manager summoning the account opening form, specimen signature card relating to the cheque in question to show that cheques in question are belongs to the accused, but he did not do so. Added to this, Complainant has not chosen to cross- examine the accused for the best reason "known to him". For all 8 C.C.16225/2012 these reasons, this court is of the clear view that whatever the defence taken by the accused is appears to be true and hence, the Complainant has not chosen to cross-examine the DW1.
14. Thus, in the light of the evidence on record indicating grave weakness in the Complainant's case and at the same time, it strengthens the defence of accused. No doubt the Complainant has utterly failed to establish the fact that the cheque in question issued by the accused in favour of him. Hence, this court is of the clear view that the Complainant has failed to prove the guilt levelled against accused for the offence punishable u/Sec.138 of N.I. Act. Accordingly, I answered point No.1 in the negative
15. POINT NO.2: In view of my above findings and reasons, I proceed to pass the following;
ORDER Acting U/S 255(1) of Cr.P.C., accused is hereby acquitted for the offence punishable U/S 138 of N.I. Act.
The bail bond will stands cancel after expiry of the appeal period.
{Dictated to the stenographer, transcribed and computerized by her, corrected and then signed by me and then pronounced in the open court on this 27th day of July 2015} (M. RAMESHA), C/c. XIX ACMM, Bangalore.
9 C.C.16225/2012ANNEXURE List of witnesses examined on behalf of the prosecution:
P.W. 1 Sri. A. Sridhar List of Exhibits marked on behalf of the prosecution:
Ex.P.1 & 2 Cheques Ex.P.1(a) & 2 (a) Signature of the accused Ex.P.3 & 4 Bank endorsements Ex.P.5 Office copy of the legal notice Ex.P.6 & 7 Postal receipts Ex.P.8 Postal acknowledgement Ex.P.9 Unserved postal cover Ex.P.9(a) Notice kept in the cover Ex.P.10 Complaint
List of witnesses examined for the defence:
D.W.1 Sri. R. Sudhakar List of documents marked on behalf of defence:
Nil C/c. XIX ACMM Bangalore.10 C.C.16225/2012
Judgement pronounced in the open court vide separate order ORDER Acting U/S 255(1) of Cr.P.C., accused is hereby acquitted for the offence punishable U/S 138 of N.I. Act.
The bail bond will stands cancel after expiry of the appeal period.
(M. RAMESHA) C/c. XIX A.C.M.M., Bangalore