Bangalore District Court
Sri.M.T.Mariswamy Gowda vs Sri.B.A.Mohammed Haneef on 18 April, 2016
IN THE COURT OF XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 18th day of April 2016
Present: Smt. Saraswathi.K.N, B.A.L.,LL.M.,
XVI Addl. Chief Metropolitan Magistrate,
Bengaluru.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.29238/2011
Complainant : Sri.M.T.Mariswamy Gowda,
S/o Late M.H.Thimmegowda,
Aged about 60 years,
R/at No.92, 2nd Main,
3rd Block, 3rd Stage,
Basaveshwaranagar,
Bengaluru-79.
(Rep. by Sri. K.S.Abhijith.,
Adv.,)
- VS -
Accused : Sri.B.A.Mohammed Haneef,
Aged Major,
Baithul Bader,
Chengala,
Kasaragod District,
Kerala-671121.
Also at;
Proprietor,
Hotel Badria,
M.G.Road,
Kasaragod District,
Kerala-671121.
(Rep. by Sri.Vinay.S, Adv.,)
2 C.C. No.29238/2011
Case instituted : 04/07/2011
Offence complained : U/s 138 of N.I. Act
of
Plea of accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 18.04.2016
JUDGMENT
The Complainant has filed this complaint against the accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. It is the case of the Complainant that, promising to supply timber to him, the accused received Rs.25,00,000/- from him. However, subsequently he learnt that, the accused has misrepresented him and collected the above said amount fraudulently. Thereafter, when he demanded for refund of the said sum of Rs.25,00,000/- the accused issued a cheque bearing No.005015 dated 31.3.2011 drawn on the Central Bank of India, Kasargod, Kerala, in his favour for Rs.5,00,000/-, being the part payment, out of the total amount payable by the accused to him. Further, the Accused also promised him that, he would put sufficient amount in his account to honour the said cheque on its presentation for encashment on the date mentioned in the said cheque.
3 C.C. No.29238/2011However, later on the Accused requested him not to present the said cheque on the said date and requested for some more time in order to arrange for funds in his account, which was agreed by him. Thereafter, on the specific instructions from the accused, he presented the said cheque bearing No.005015 dated 31.03.2011 for Rs.5,00,000/- drawn on the Central Bank of India, Kasargod, Kerala, for collection through his banker. To his surprise, the said cheque came to be returned unpaid by his banker with an endorsement "Funds Insufficient in the account", pursuant to which, he approached the accused and demanded him to repay the amount covered in the said cheque. But the accused did not care to pay the said amount to him. Immediately he sent a legal notice dated 25.05.2011 to the accused by RPAD demanding the payment of Rs.5,00,000/- with penal interest at 24% per annum within 15 days from the receipt of legal notice. The said legal notice has been duly served upon the accused. On receipt of the legal notice, the accused has sent an untenable reply. It is further, contended that, though the accused has received the legal notice of demand, he has failed to make the payment of Rs.5,00,000/- with penal interest at 24% per annum within the stipulated period from the date of the receipt of the statutory notice. The accused had issued the said cheque in discharge of part of the above said liability. Therefore, the present case.
4 C.C. No.29238/20113. After recording the sworn statement of the Complainant, the same was registered as criminal case, summons was issued to the accused, who appeared through his counsel and got enlarged on bail. The substance of the accusation was read over to him, he pleaded not guilty and claimed to be tried.
4. In order to prove his case, the Complainant has examined himself as PW-1 by relying upon the documentary evidence at Ex.P1 to P9. Ex.D1 & 2 have been marked through P.W-1 in his cross-examination by the learned counsel for the accused.
5. Thereafter, the incriminating evidence found in the evidence of the Complainant has been explained to the accused by recording his statement as required under Sec. 313 of Cr.P.C. Though the accused initially chose to lead his evidence, but subsequently he has not chosen to lead his defence evidence.
6. Heard the arguments of the learned counsels representing the both the sides and perused the materials on record.
7. The following points arise for my consideration:-
5 C.C. No.29238/20111. Whether the Complainant has proved beyond reasonable doubt that the accused is guilty of the offence punishable under Sec.138 of the Negotiable Instruments Act?
2. If so, what Order or Sentence?
8. My findings to the above points are as under:-
Point No.1 : In the Negative;
Point No.2 : As per the final order for the following:-
REASONS
9. POINT No.1:- It is the case of the Complainant, that promising to supply timber to him, the accused has received Rs.25,00,000/- from him. Thereafter he failed to perform his promise and therefore when he demanded for the refund of the said sum of Rs.25,00,000/-, the accused has issued a cheque bearing No.005015 dated 31.03.2011, drawn on the Central Bank of India, Kasargod, Kerala, in his favour for Rs.5,00,000/-, being the part payment out of the total amount payable to him. However, the said cheque came to be dishonoured due to the reason of "insufficiency of funds" in his account. After the receipt of the legal notice issued by the Complainant to him, he has given an untenable reply, but failed to repay the amount covered under the cheque.
6 C.C. No.29238/201110. To prove these allegations, the Complainant has examined himself as P.W.1 & has filed his affidavit, in which he has reiterated the complaint averments.
In support of his oral evidence, he has relied upon the following documentary evidence:-
Ex.P1 is the disputed cheque dated 31.03.2011 for Rs.5,00,000/-, in which the signature has been identified as that of the accused as per Ex.P1(a), the bank memo issued by the Canara Bank as per Ex.P2, the cheque return memo issued by the central bank as per Ex.P3, the office copy of the legal notice as per Ex.P4, the postal receipts as per Ex.P5 & 6, postal acknowledgment as per Ex.P7, the reply notice as per Ex.P8 and the complaint as per Ex.P9.
11. By relying upon this documentary evidence, it is pertinent to note that, in his cross-examination, P.W-1 had admitted that, the entire transaction between himself and the accused have taken place in the presence of his cousin by name Sri.Sanjeev, an advocate and for the first time, in his cross-examination, it is deposed by P.W-1 that, he has lent the amount to the accused in January 2010. However, a document which is the legal notice dated 17.08.2012 which is issued by the counsel for the Complainant to the accused has been confronted to P.W-1 and the same has been marked as Ex.D1, since the same is admitted by P.W-1, it is stated in 7 C.C. No.29238/2011 para No.5 on page number 9, that the accused has collected Rs.25,00,000/- from the Complainant on 24.11.2009. But it is pertinent to note that, the Complainant has not pleaded the date of the alleged lending of Rs.25,00,000/- by him to the accused either in his notice which is at Ex.P4 or in his complaint or in his sworn statement affidavit or in his affidavit filed during his chief evidence before the Court. In order to decide the claim of the Complainant, the most crucial document which is admitted by P.W-1, through the defence counsel is Ex.D-1, which is a notice issued by P.W-1 through his counsel to the accused after the filing of the present case in which a entirely new story has been put forth by P.W-1 for the first time which does not find place in his earlier pleadings. According to the contents of Ex.D-1, which is admitted by P.W-1, P.W.1 has pleaded that, when he demanded for the refund of the sum of Rs.25,00,000/-, the accused had issued 5 cheques for Rs.5,00,000/- each bearing No.005011, 005012, 005013, 005014 and 005015 drawn on the Central Bank of India, Kasargod Branch, Kerala State and it is also pleaded in Ex.D1 that, the Accused had issued an undertaking letter dated 11.02.2010 stating that, the above said 5 cheques were issued towards payment, in full and final settlement of the sum of Rs.25,00,000/- received by the Complainant from him. But, it is pertinent to note that, no such letter of undertaking dated 11.02.2010 is 8 C.C. No.29238/2011 produced by P.W-1. In Ex.D-1, the Complainant has taken up a stand, that due to his continued remainders, the accused has paid a sum of Rs.4,00,000/- by way cash on 30.04.2010 in respect of the cheque bearing No.005014 dated 31.12.2009, by making an endorsement in the said cheque and that, on 30.04.2010 itself, the Accused has taken back his two cheques bearing No.005011 and 002015 stating that, he would bring the cash of Rs.11,00,000/- i.e., Rs.1,00,000/- in respect of the cheque No.005014 and Rs.5,00,000/- each, in respect of the cheque Nos. 005011 and 005012 and on the said date, though he promised to return within one hour on the same day, he never turned up inspite of continuous phone calls from the Complainant. It is also alleged in the legal notice at Ex.D1, that, as per his instruction, he also presented the cheque baring No.005013 dated 31.12.2010. However, even the said cheque came to be bounced with an endorsement "Funds Insufficient" and thereafter the accused never cared to clear the outstanding amount of Rs.16,00,000/- inspite of repeated reminders from the Complainant. He has further alleged that, when he personally met the Accused during the 3rd week of March 2011 and demanded for Rs.16,00,000/- as well as Rs.5,00,000/- in respect of the cheque No.005015 dated 31.03.2011, the accused requested him for 6 months time to pay the above said Rs.16,00,000/- and instructed him to 9 C.C. No.29238/2011 present the cheque bearing No.005015 dated 31.03.2011 for collection and assured that the same would be realized. But it is pertinent to note that, according to the Complainant, even the said cheque got bounced due to the reason of Insufficiency of funds and therefore in para no.5 of Ex.D1, it is alleged by the Complainant that, the accused is liable to pay a sum of Rs.21,00,000/- with interest at the rate of 18% p.a., from 24.11.2009 and the Accused has been called upon to make the payment of Rs.21,00,000/- together with interest at 18% p.a., from 24.11.2009 within 15 days from the date of the receipt of the said notice.
12. Though by going through the contents of Ex.D1, it clearly goes to show that, according to P.W-1, the accused has already repaid the Rs.4,00,000/- in respect of one of the cheques among the 5 cheques alleged to have been issued by him in his favour and he owes Rs.21,00,000/- which he is liable to pay, but, this fact of the accused allegedly issuing 5 cheques to P.W-1 for Rs.5,00,000/- each has not been pleaded either in the notice at Ex.P4 or in the complaint or in the sworn statement affidavit, but the same finds place only in the legal notice at Ex.D1, which is issued by the Complainant through his counsel after the filing of the present case against the accused and also in the affidavit filed by P.W-1 in his chief evidence. But the alleged repayment of 10 C.C. No.29238/2011 Rs.4,00,000/- by the accused to P.W-1 has not been pleaded even in the chief examination affidavit of P.W-1 and therefore this contention taken by the Complainant only in the reply notice which is at Ex.D1, unsupported by any pleading cannot be considered by the Court. Moreover in his cross- examination, it is deposed by P.W-1 for the first time that the amount lent by him to the accused has not been with drawn by him from his bank account, but the said amount collected from his college students and he also has documents to show that he has lent the said amount to the accused. But it is pertinent to note that, none of the said documents is produced by P.W-1 before the Court and according to him, he is liable to repay the said amount of Rs.25,00,000/- to his college administration authorities and that they have not issued any notice or memo to him seeking repayment of the said amount of Rs.25,00,000/- which was collected by way of fee from the college students.
13. Another important contradiction in the case of the Complainant is that, in the present case, his relief is in respect of one cheque for Rs.5,00,000/- which has got bounced and that the remaining 4 cheques are in his possession and that he has not lodged other cases against the accused pertaining to the remaining 4 cheques and according to him, in the event of the accused not repaying the amount 11 C.C. No.29238/2011 covered under the remaining 4 cheques he would file cases against the Accused pertaining to them. This is totally in contradiction to what is stated in Ex.D-1, as per which, according to the Complainant himself, among the 5 cheques alleged to have been issued by the accused in his favour, 2 cheques bearing Numbers 005011 and 005012 have already been returned to the Accused, one cheque bearing No.005013 has got bounced, the cheque No.005015 is the subject matter of the present case and in respect of the cheque No.005014, the accused has repaid Rs.4,00,000/-. Therefore, as per Ex.D1, it is the claim of the Complainant that, he has already returned two cheques to the Accused, while according to his oral evidence, he is in possession of the 4 cheques belonging to the accused. In this regard, he has taken another contrary stand in his cross-examination stating that, he is in possession of the 2 cheques of the accused and the remaining cheques have been issued by him to his advocate by name Sanjeev. This is also is a serious contradiction in the case of the Complainant.
14. It is pertinent to note that, in his cross-examination, P.W-1 states that, he has not met the accused after 30.04.2010, but Ex.D-1 at para No.3 it is stated that, he had personally met the accused during the 3rd week of March 2011 and demanded for Rs.16,00,000/- as well as 12 C.C. No.29238/2011 Rs.5,00,000/- in respect of the disputed cheque in question. This is again a serious contradiction in the case of the Complainant. Further, it is the case of the Complainant that before his lending of the money to the accused, he was not at all knowing the Accused. This statement of P.W-1 raises a serious doubt, since it is contrary to the conduct of an ordinary prudent man who would not take the risk of lending a huge sum of money without knowing the borrower and his antecedents personally. Thus, when the entire case of the Complainant is gone through it raises serious doubts in his case and the same cannot be believed by this Court.
15. The defence of the Accused is evident from Ex.D2, which is the reply notice dated 5.09.2012 issued by the Accused through his counsel to the counsel for the Complainant, in which the entire case of the Complainant has been denied and in page No.2 of para No.2, the defence of the Accused has been specifically set out, as per which, it is stated that, the Complainant is a henchman of Sri. B.L.Sanjeev, Advocate, having his office at "My Sugar Building" J.C.Road, Bengaluru. In a writ petition filed before the Hon'ble High Court of Karnataka, wherein one Umesh S/o.Late D.Ramu and others were parties, the Accused being a person interested in the subject matter had the occasion to visit the office of the said counsel for a number of times and 13 C.C. No.29238/2011 the accused, being one of the partners of M/s. Heritage Developers had the occasion to handover the blank signed cheques in question to the said advocate, who has misused the same and the Complainant is acting according to the directions and the advise of the said advocate.
16. In order to substantiate this defence, during the cross-examination of P.W-1, the said defence has been suggested to P.W-1, but P.W-1 has not denied the same, instead he has only pleaded ignorance to the said suggestion. Therefore, it is pertinent to note that, when the Complainant has admitted that the entire transaction as alleged to have been taken place between himself and the accused is in the presence of the advocate by name B.L.Sanjeev and the defence of the accused has not been denied by P.W-1, but has only has been vaguely answered by P.W-1 by way of pleading ignorance, it clearly goes to show that, the defence of the accused is probable and reliable and on the other hand, the case of the Complainant is full of ambiguity and serious doubt and therefore this court is of the opinion that, the Complainant has miserably failed to prove the guilt of the accused beyond reasonable doubt.
17. During the course of arguments, the counsel for the Accused has relied upon the following decisions:-
14 C.C. No.29238/20111. In John K.Abraham Vs., Simon C.Abraham, reported in 2014(1) KLT 90 (SC),
2. In Santhi Vs., Mary Sherly, reported in 2011(3) KLT 273,
3. In Prakashan Vs., Surenderan, reported in 2007(4) KLT 502(SC),
4. In Krishna Janardhan Bhat Vs., Dattatraya Hegde, reported in 2008(1) KLT 425(SC),
18. I have gone through the decisions relied upon by the learned counsel for the accused and I am of the view that, the principles of law laid down are aptly applicable to the case on hand. In view of the aforesaid reasons and discussions, this Point deserves to be answered in the Negative.
19.POINT No.2:- In view of the above reasons and discussions, I proceed to pass the following: -
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused is hereby acquitted of the offence punishable u/s 138 of Negotiable Instruments Act.15 C.C. No.29238/2011
His bail bond and surety bond stands cancelled.
(Dictated to the stenographer, transcript thereof is computerized and printout taken by her, and then verified, and then pronounced by me in open Court on this the 18th day of April 2016).
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the Complainant:
PW.1 : M.T.Mariswamy Gowda
List of documents exhibited on behalf of the
Complainant:
Ex.P-1 : Cheque;
Ex.P-1(a) : Signature of the accused;
Ex.P-2 : Bank memo issued by the Canara Bank;
Ex.P-3 : Cheque return memo issued by Central
Bank;
Ex.P-4 : Office Copy of the legal notice;
Ex.P-5 & 6 : Postal receipts;
Ex.P-7 : Postal Acknowledgment;
Ex.P-8 : Reply Notice;
Ex.P-9 : Complaint.
List of witnesses examined on behalf of the accused: NIL 16 C.C. No.29238/2011 List of documents exhibited on behalf of the accused:
Ex.D.1 : Letter (Marked through P.W-1)
Ex.D.2 : Notice (Marked through P.W-1)
(SARASWATHI.K.N),
Date: 18.04.2016 XVI ACMM, Bengaluru City.
17 C.C. No.29238/2011