Bangalore District Court
Sri.P.Subramanyam vs Narasimha Reddy on 30 June, 2015
IN THE COURT OF THE XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 30th day of June 2015
PRESENT: M.RAMESHA B.A., LL.M.,
XX ADDL. C.M.M. Bangalore.
C.C.No. 18913/2010
Complainant : Sri.P.Subramanyam,
Aged about 32 years,
S/o Sri.P.Chandrashekar,
R/at No.61/347, 5th Main,
Chandrashekar Azad Road,
Gavipuram, Basavanagudi,
Bangalore - 560 019.
(Represented by Sri.S.M.Anees Ahmed -
Advocate)
Vs.
Accused : 1.Narasimha Reddy,
Aged about 39 years,
R/of. Honnahalli, Yelahanka Hobli,
Bangalore North Taluk.
2. Mrs.Nagarathnamma.M,
W/o Narasimha Reddy,
Aged about 33 years,
R/of. Honnahalli, Yelahanka Hobli,
Bangalore North Taluk.
(Represented by Sri.R.V.Rajashekara -Advocate)
Offence complied of : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused No.1 & 2 are Acquitted
Date of Order : 30-06-2015
2 C.C.18913/2010
JUDGMENT
The complainant has filed this complaint U/S. 200 of Cr.P.C., against the accused No.1 and 2 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 were appeared before the court through their counsel and got released them on bail. The substance of accusation was read over and explained to the accused, wherein they 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 12. Thereafter, accused have been examined as required U/S 313 of Cr.P.C., by explaining incriminating evidence appeared against them. Wherein, they denied the entire evidence of complainant. In order to substantiate their defence accused No.1 and 2 were examined as D.W.1 and DW.2 and no documents are marked.
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, Bangalore, conducting Denova trial does not arises.
3 C.C.18913/2010
5. The Learned Counsel for the complainant has filed written argument. Heard the argument advanced by the Learned Counsel for the accused.
The Learned Counsel for accused relied on the citation reported in 2014(3) Crimes 291(SC), in a case of Ramdas Vs. Krishnanand
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 land developing work and the BEML SC/ST Welfare Association was come forward to purchased the developed site from the complainant for its members. Accordingly in order to procure the lands for development of residential sites the complainant is searching the person who is well acquainted with farmer for procure the lands at Vijayapura - Jangamakote on Siddalaghatta Road, Chikkabalapur Dist. At that 4 C.C.18913/2010 time the accused No.1 came and introduced himself to the complainant saying that he is well acquainted with farmer in the area of Chikkabalapur Dist and he is ready to procure the lands required to the complainant for formation of residential sites to distribute the same to the BEML SC/ST Welfare Association. Accordingly the complainant was paid advance amount of Rs.5,00,000/- to the accused No.1 by way of cash. Subsequently the accused No.1 is delayed in procuring the required land, so that complainant not able to develop the residential sites within time. So that the BEML SC/ST Welfare Association was cancelled the project work entrusted to the complainant, as a result the complainant was sustained huge loss. Thereafter, on 13.08.2009 the complainant demanded the accused No.1 for repayment of the advance amount. Then the accused No.2, who is none other than the wife of accused No.1 had issued the cheque bearing No.676971 dated 13.01.2010 for Rs.5,00,000/- in favour of the complainant, drawn on Citi Bank, Bangalore, towards the repayment of the advance amount received by accused No.1. When the complainant presented the said cheque for realisation through his banker, the said cheque was dishonoured for the reason ""Account Closed" and returned with bank memo. Thereafter in spite of issuing the demand notice to the accused No.1 & 2, they failed to pay the cheque amount. Hence the present complaint.
5 C.C.18913/2010
8. In support of his case the complainant has filed his affidavit of chief examination by reiterating the complaint averments and also produced the documents which are marked at Ex.P.1 to Ex.P.12. Ex.P.2 is the cheque in question said to have been issued by the accused, Ex.P.3 is the bank endorsement, which reveals that the Ex.P.2 cheque was dishonoured for the reason "Account Closed", Ex.P.4 is the office copy of the demand notice, Ex.P.5 to 7 are the postal receipts for having sent the notice through RPAD & UCP to the accused, Ex.P.8 & 9 are the unserved postal covers with postal shara "party absent". All these documents goes to show that after dishonour of the cheque and after receiving the bank return memo the complainant had issued the demand notice to the accused No. 1 and 2 within time and after completion of 15 days from the date of service of notice complaint came to be filed within time.
9. On the other hand the accused has raised the defence stating that, they do not know the complainant and for the first time they saw the complainant before the court only and there is no transaction with the complainant and Ex.P.2 cheque in question is also not issued to the complainant for repayment of any amount. Father of accused No.2 was borrowed Rs.5,00,000/- from one Rajendra Raju, for that accused No.2 had issued her cheque without signature to the said Rajendra Raju. Thereafter, in spite of repayment of the said loan the said blank cheque was not returned the cheque to the accused. But subsequently the complainant was misutilized 6 C.C.18913/2010 the cheque and filed this false case. Further it is contended that accused No.2 is not signed the Ex.P.2 cheque and Ex.P.2(a) signature on the cheque was forged one.
10. It is pertinent to note that, accused No.2 has clearly admitted that Ex.P.2 cheque in question is belongs to her account, but she has clearly denied her signature on the cheque saying that it was forged one. When such being the case only on the ground that the accused admitted that the cheque is belongs to her account is a sole ground to draw the presumption U/S.139 of the of N.I. Act in favour of the complainant is a question. This question arise because, one of the requirements of drawing the presumption under S.139 is that the cheque is 'received' by the holder. The cheque can reach the hands of a person in many ways. It can be, as handed over by the drawer, for the discharge of a debt or liability. It could be as a finder of a lost or misplaced cheque. It could be as taken away by force. It could be by committing theft. It can be procured by the alleged holder in a number of ways. But, for drawing a presumption under S.139 the Court must be satisfied that the holder of the cheque 'received' the cheque by entitlement and that he did not procure it by any other means.
11. In the present case on hand the accused have raised the specific defence that the cheque in question was not issued to the complainant towards the discharge of any amount and the said 7 C.C.18913/2010 cheque was issued to one Rajendra Raju in the year 2008. In order to prove their defence accused No.2 entered in to the witness box and deposed as DW.1 before the court. Further DW.1 clearly deposed that she never acquainted with the complainant and for the first time she saw the complainant before the court only. Further she deposed that Ex.P.2 cheque in question is belongs to her account, but the signature on the cheque is not scribed by her and the said blank cheque was given to one Rajendra Raju in the year 2008 in relation to the loan of Rs.5,00,000/- borrowed by her father from the said Rajendra Raju. Further deposed that neither she nor her husband were not received any amount from the complainant. Accused No.1 also entered into the witness box as DW.2 and deposed stating that he never acquainted with the complainant, for the first time he came to know about the complainant before the court only and he did not have any transaction with the complainant and he did not issued any cheque to the complainant. Further he deposed that Ex.P.2 cheque is belongs to his wife and the said cheque was issued to one Rajendra Raju in the year 2008 in relation to the loan of Rs.5,00,000/- borrowed by his father-in-law. No doubt both the accused have clearly and categorically denied that they did not have any transaction with the complainant and the Ex.P.2 cheque was misutilized by the complainant by forging the signature of accused No.2.
8 C.C.18913/2010
12. On the other hand according to the complainant, he was paid amount of Rs.5,00,000/- to the accused No.1, towards procure of land for complainant. Further he stated that the complainant was paid amount of Rs.2,50,000/- on 12.09.2008, Rs. 1,00,000/- on 06.12.2008, Rs.1,00,000/- on 05.02.2009 and Rs.50,000/- on 25.02.2009 by way of cash to the accused. According to the complainant, he was paid amount of Rs.5,00,000/- by way of cash in four installments. If really the complainant was paid the amount to the accused No.1 in relation to procuring the land, definitely there should be an agreement or Memorandum of Understanding between them. Further it is to be taken note of that according to the complainant BEML SC/ST Welfare Association was entrusted him the project for developing the residential sites. Accordingly the association was written a letter dated 12.09.2008, the xerox copy of the said letter was marked at Ex.P.1 subject to production of original letter. Subsequently the complainant was produced the original copy of Ex.P.1. On seeing the Ex.P.1 letter and its original copy in juxta position it clearly apparent that both the letters were prepared separately and the font sizes of the each letters are clearly differs with each other. Further on comparing the Ex.P.1 letter and original copy of the letter it clearly goes to show that they are not one and the same and prepared separately. Added to this during the cross examination of PW.1, he clearly admits that the font size of Ex.P.1 letter is clearly differs with original letter produced by him. No doubt one can easily find out that the original letter produced by the 9 C.C.18913/2010 complainant and Ex.P.1 letter is not one and the same and they are prepared individually and Ex.P.1 is not the copy of its original letter. Further it goes to show that complainant is not approached the court with clean hand though he produced the two different letters but he tried to prove that both the letters are one and the same.
13. According to the complainant he was paid amount of Rs.5,00,000/- to the first accused as an advance amount towards procuring the land for him. No doubt according to the complainant there is a business transaction between the complainant and the accused No.1. If really the complainant was paid substantial amount of Rs.5,00,000/- to the accused No.1, definitely he should have got executed documents such as agreement or Memorandum of Understanding, but absolutely there is no such agreement between them. It is pertinent to note that complainant has not proved that accused No.1 is his close friend. When such being the case no prudent man will accept the version of the complainant that he had paid substantial amount of Rs.5,00,000/- to the accused No.1 without got executing any documents.
14. Further financial capacity of the complainant is clearly denied by the accused, but the complainant has not chosen to prove his financial capacity to pay substantial amount of Rs.5,00,000/-. In support of his submission, the Learned Counsel for the accused has relied on the decision of our Hon'ble Apex court reported in 2014(3) 10 C.C.18913/2010 Crimes 291(SC), in a case of Ramdas Vs. Krishnanand, where in it is held that;
Negotiable Instruments Act, 1908- Section 138- 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 accused-appellant. (para10) In the light of the law laid down in the above decision considering the facts of the case on hand, it clearly goes to show that absolutely the complainant has not made any efforts to prove his financial capacity by producing his Bank Account Statement etc., Added to this the complainant has utterly failed to prove that the BEML SC/ST Welfare Association was given offer to the complainant to purchase developed sites from him and he failed to establish the fact that he required the land for develop the residential sites, it is not possible to believe that in order to purchase the land the complainant was paid amount of Rs.5,00,000/- to the accused No.1. No doubt the complainant has failed to prove his financial capacity and also failed to prove the passing of consideration.
15. Admittedly the complainant has any having transaction with the accused No.2. According to him he was paid amount of Rs.5,00,000/- to the accused No.1 and the said payment was not 11 C.C.18913/2010 within the knowledge of accused No.2. When such being the case the theory of complainant that accused No.2 came and issued the cheque in question in favour of the complainant is not sustainable. If the amount paid to the accused No.2 and the cheque was obtained from the accused No.2 then the question is different. Absolutely there is no document to prove the transaction held between the complainant and the accused No.1 and also payment of Rs.5,00,000/- to the accused No.1 as an advance amount. Thus, in the light of the evidence on record indicating grave weakness in the complainant's case. Viewing from any angle this court is of the clear view that the complainant has utterly failed to prove the existing of legally enforceable liability and also failed to prove the fact that the cheque in question had issued for discharge of legally enforceable debt or liability. No doubt the complainant has failed to prove the guilt leveled against the accused beyond reasonable doubt for the offence punishable under section138 of the N.I. Act. Accordingly the point No.1 answered in the negative.
16. POINT No.2:- Accordingly and 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 No.1 and 2 are hereby acquitted for the offence punishable U/S 138 of N.I. Act.
12 C.C.18913/2010
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 30th day of June 2015} (M. RAMESHA), XX ACMM, Bangalore.
ANNEXURE List of witnesses examined on behalf of the prosecution:
P.W.1 P.Subramanyam List of Exhibits marked on behalf of the prosecution:
Ex.P.1 Letter Ex.P. 2 Cheque Ex.P. 2(a) Signature of the accused Ex.P. 3 Bank endorsement Ex.P. 4 Copy of the legal notice Ex.P. 5 to 7 Postal receipts Ex.P. 8 & 9 Unserved postal covers Ex.P.10 & 11 Notices Ex.P. 12 Complaint List of witnesses examined for the defence: DW.1 Nagarathnamma DW.2 Narasimha Reddy.S
List of documents marked on behalf of defence:
-Nil-
XX A.C.M.M., Bangalore.13 C.C.18913/2010 14 C.C.18913/2010