Bangalore District Court
Ms. Sangeetha .B vs Mr. Edwin Bhaskar .M on 16 March, 2017
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY.
Dated this the 16th day of March , 2017,
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
C.C.No.9209/2016
Complainant : : Ms. Sangeetha .B,
D/o. Late Shanthraj,
Aged about 30 years,
Occupation : Staff Nurse,
R/at No.49, 3rd Floor,
7th Main Road, 3rd Block,
Thyagarajanagar,
Bangalore-560028.
(By K.N. Theertha Kumar, Adv.)
V/s.
Accused : Mr. Edwin Bhaskar .M,
S/o M. Dheenakar,
Aged about 46 years,
Occupation : Business,
R/at No.17-5-303,
Near S & IG Mission Church,
Hasanabad, Hindupur Town,
Anthpur District-515201,
Andra Pradesh State.
(By Sri.Peetla. Prasad, Adv.)
Date of Institution : 04-04-2016.
Offence complained of : U/s 138 of N.I.Act.
2 C.C.No.9209/2016
Plea of the accused : Accused is pleads not guilty
Final Order : Accused is Acquitted.
Date of Order : 16.03.2017.
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 the N.I.Act.
REASONS
The brief facts of the complainant case is as follows:-
2. The accused is a acquaintance of the complainant and he
approached the financial assistance for the purpose of domestic
commitments complainant had paid sum of Rs.6,00,000/- during
the 3rd week of December 2014mobalizing funds from her savings
and taking personal loan sum of Rs.3,50,000/- from the Vijaya
Bank, Jayanagara Branch on 14.11.2014 and the accused had
agreed to repay the said amount with in six months and also
agreed to pay interest at the rate of 12% per annum separately and
to discharge the said legally enforceable debt or liability, the
accused had issued a cheque bearing No.000362 dated 03.11.2015
sum of Rs.6,00,000/- drawn on Axis Bank, Hindupur Branch,
3 C.C.No.9209/2016
Hindupur in favour of complainant. The complainant presented
the said cheque on 03.11.2015 and 16.12.2015 to her bank Vijaya
Bank, Jayanagara Branch, Bangalore as the accused had issued
the said cheque without maintaining sufficient funds in his
account. Hence the said cheque returned unpaid with an
endorsement "Funds Insufficient" on 27.01.2016. This fact has
been intimated to the accused but the accused did not repay the
amount covered under the cheque. Hence the complainant got
issued legal notice to the accused on 10.02.2016 RPAD the said
notice is returned with the shara 'not claimed' and thus the
accused has committed an offence punishable under Section 138
of Negotiable Instruments Act and orderered for payment of
compensation out of the fine amount under Section 357 of Cr.P.C.
in the interest of justice and equity.
3. The accused appeared and contest of this case by denying
the entire case of the complainant at the time of recording plea of
accusation. In support of the case of complaint examined himself
as PW.1 by way of affidavit got marked Ex.P1 to Ex.P8 and at the
time of cross examination of DW.1 got marked Ex.P9 to Ex.P11 and
this PW.1 has been fully cross examined by the accused counsel
and thus the complainant closed her side evidence.
4 C.C.No.9209/2016
4. There afterwards the accused examined under Section
313 Cr.P.C. statement in which he totally denied the entire case of
the complainant in support of the denial lead his side evidence filed
by way of affidavit as DW.1 and got marked Ex.D1 to Ex.D6. DW.1
has been fully cross examining by the complainant counsel and
thus the accused closed his side evidence.
5. I have heard the argument of complainant counsel on
merit. In support of his contention the learned counsel for
complainant relying on the decision reported in
1. 2004(4) KCCR 1816
2. AIR 2002 SC 3014
3. 2006(2) DCR 514
4. (2015) 1 SCC 99
5. 2013 STPL(DC) 20 KCR Hon'ble High Court of
Karnataka
6. 2007 STPL (CD) 1060 KCR Hon'ble High Court
of Karnataka
7. 2013 STPL(DC) 1892 KCR Hon'ble High Court
of Karnataka
8. 2013 STPL (DC) 679 Supreme Court of India
9. 2014 STPL (DC) 889 DEL
10. 2009 (4) AKAR (NOC) 71 (ORI)
5 C.C.No.9209/2016
and thus he prays for convict the accused in accordance with law.
6. In support of the case of the accused the learned counsel
for the accused submitted written argument by narrating the facts
and circumstances of the case and he too also relied on the
decision reported in
1. 2015 (1) ACC 99
2. AR 2009 NOC 2327 Bombay
3. 2014 (2) SCC 236
4. AIR 2008 SC 1325
5. DCR 2008 (1) 151
6. ILR 2009 Karnataka 172
7. ILR 2009 (Karnataka) 4629
8. ILR 2007 (Karnataka) 2709
9. 2009 (1) Crimes 196 (Bombay)
10. 2008 (4) Crimes 196 (Bombay)
11. 2009 (2) Crimes 559 (MED)
12. ILR 2009 (Karnataka) 1633 (SC)
13. AIR 2009 SC 1598
14. 2010 (1) KCCR 94
Accordingly the learned counsel for the accused prays for acquittal
of the accused in accordance with law.
6 C.C.No.9209/2016
7. In order to prove the case of complainant she examined as
PW.1 filed by way of affidavit in which she reiterated complaint
contention and got marked Ex.P1 cheque alleged to be issued by
the accused and identified his signature of the accused as Ex.P1a.
This issuance of cheque has been disputed by the accused and
stated that the alleged cheque was issued to one Hindupur
Muttanna towards loan amount of Rs.1,00,000/- during the year
2013 and issued cheque for the purpose of security. Ex.P2 is the
endorsement issued by the bankers stating that Ex.P1 cheque was
dishonored due to "Funds Insufficient". Ex.P3 and Ex.P4 are the
another two endorsements stating that Ex.P1 cheque was
dishonored due to "Funds Insufficient". Ex.P5 is the copy of legal
notice this notice does not contain signature of complainant except
her counsel. Ex.P6 is the RPAD postal receipt for having sent the
legal notice to the accused. Ex.P7 is the RPAD postal cover sent to
the accused was returned with the postal share 'Intimation
delivered not claimed' etc,. Ex.P7a is the notice in it. Ex.P8 is the
Vijaya Bank Statement of account stands in the name of
complainant in which during the year 2014 as on 29.11.2014 she
had bank balance of Rs.1,33,000/- and add. Ex.P9 is the earlier
cheque issued by the accused an amount of Rs.49,000/- dated
7 C.C.No.9209/2016
18.03.2015 was dishonored due to "Funds Insufficient". As per
Ex.P10 endorsement issued by the bankers. At the time of cross
examination of DW.1 got marked Ex.P9 and Ex.P10 and also phone
call message taken between the complainant and accused as per
Ex.P11 during the year 2015. On the basis of these documentary
evidence the complainant has not specifically stated on which
dated she paid huge amount of Rs.6,00,000/- to the accused
except stated during the 3rd week of December 2014 as per case of
complainant the accused issued a cheque during year 2015 and
she was presented the said cheque for collection two times i.e. in
the month of November and December. Further more that the
contents of Ex.P1 cheque and signature on the cheque are in
different hand writing. Though the demand notice sent to the
accused to his Hindupura Town Andhra Pradesh but the same is
returned with the postal shara intimation delivered not claimed
etc,. Further with respect of Ex.P9 earlier cheque issued by the
accused was dishonored due to "Funds Insufficient" but the
complaint has not stated anything about the said cheque in the
complaint.
8. The accused has denied the entire case of the complainant
in support of his denial lead his side evidence as DW.1 filed on
8 C.C.No.9209/2016
behalf of affidavit in which he has stated that has not at all
obtained any loan amount from the complainant but at Para-4 of
chief examination one Mr.M.Muttanna obtained loan amount of
Rs.1,00,000/- from the complainant after few days the complaint
was demanded a blank cheque from him for security purpose.
Mr.M.Muttanna was approached this accused and he has issued
Ex.P1 cheque as a security to the complainant. There afterwards
the said Mr.Muttanna few months later he repaid loan amount was
cleared with interest to the complainant. But the complainant did
not return the security cheque by saying one or other false
reasons. The complainant has not issued any legal notice but he
received the summons from the Court the same was issued by the
concerned police and hence he has not committed an offence has
alleged by the complainant accordingly he prays for acquittal from
this case. In order to show he deposited Rs.15,000/-, Rs.5,000/-
and Rs.10,000/- to the Vijaya Bank account of the complainant
during the year 2014 he produced the said deposit slip and also in
order to show he is working at Indigo Security Services, further
produced his Axis Bank statement of account as per Ex.D1 to
Ex.D6 and thus prays for acquittal from this case. In the cross
examination of DW.1 he admitted that he visited to the death
9 C.C.No.9209/2016
function of complainant father but he denied that had good
relation with the complainant and he made several money
transaction, but he admitted that Ex.P1 cheque and the signature
found on the Ex.P1a is belongs to this accused, but he denied that
in order to repay the loan amount borrowed from the complainant
of Rs.6,00,000/- he is issued the said cheque. Further he denied
that apart from the said loan amount he also obtained some other
loan amount from the complainant for that he had issued Ex.P9
cheque and the same was dishonored but he denied that had a
mobile phone number through his mobile number sent a message
to the complainant, but he had admitted that after showing the
contents of the message same has been admitted by him but has
denied that the accused issued Ex.P1 cheque to one Mr.Muttanna
and the said Mr.Muttanna given this Ex.P1 cheque to this
complainant filed false case and also he denied that after issuance
of demand notice to this accused was returned with the postal
shara not claimed, but he admitted that the summons issued in
the case duly served to this accused and also admitted that the
addresses stated in the Ex.P7 postal letter is belongs to this
accused. Further he admitted that he had not taken any steps
against the complainant or Mr.Muttanna for misusing of Ex.P1
10 C.C.No.9209/2016
cheque except the denial of the contention of the accused
complainant has not produced any corroborative evidence to
support her case.
9. In support of the case of the complainant the learned
counsel for complainant vaminently argued before this Court that
the complainant had fulfilled all the ingredients of the offences
punishable under Section 138 of Negotiable Instruments Act and
hence punish the accused in accordance with law. In support of
the case of complaint the complaint relying on the decision
reported in 2004(3) KCCR 1816 (Mohan V/s Mohan Naidu) in
which the Hon'ble High Court of Karnataka held that once the
issue of cheque and the signature of it is admitted, Court has to
presume that the cheque has been issued for discharging the debt
or liability. Further relying on the decision reported in AIR 2002
Supreme Court 3014 (C.D.S. Ltd V/s Beemna Shabeer and
another) in which the Hon'ble Supreme Court of India held that
cheque issued by guarantor cannot be said to have not been issued
for purpose of discharging any debt or liability. Further relying on
the decision reported in 2006 (2) DCR 514 (R.Sivaraman V/s The
State of Kerala and Others) in which Hon'ble Kerala High Court
held that cheque had been issued for a debt or liability-But burden
11 C.C.No.9209/2016
of proving that cheque had not been issued discharge of a debt or
liability is on accused unless rebutted same. Further relied on the
decision reported in (2015) 1 SCC 99 (K. Subramani V/s K.
Mamodara Naidu) in which the Hon'ble Supreme Court of India
held that Dishonor of cheque-Legally recoverable debt nor proved
as complainant could not prove source of income from which
alleged loan was made to the accused etc,. Further relying on the
decision reported in 2013 STPL (DC)20 KAR (Sri.Prakash @
Gnanaprakash V/s T.S. Susheela) in which Hon'ble High Court of
Karnataka held that plea of non services of valid notice but notice
sent by registered post on correct address hence Section 114 of
Indian Evidence Act and Section 27 of General Clause Act available
to prosecution. Further relying on the decision recorded in 2007
STPL (DC) 1060 Karnataka (Jayamma V/s Lingamma) in which the
Hon'ble High Court of Karnataka held that presumption of services
of notice should be presumed to have been served if it is sent to the
correct address. Further relied on the decision recorded in 2013
STPL (DC) 1892 KAR (M.D. Ramakrishnaiah V/s V.Javaregowda) in
which Hon'ble High Court of Karnataka held that the signature of
the cheque is admitted except disputing hand writing on the
cheque but it appears that there is no need for Court to seek
12 C.C.No.9209/2016
assistance of hand writing expert. Further relied on the decision
recorded in 2013 STPL (DC) 679 Supreme Court (Vijay V/s Laxman
and Another) in which Hon'ble Supreme Court of India held that
burden of proving the consideration for dishonor of the cheque is
not on the complainant but the burden upon to the accused etc,.
Further relied on the decision recorded in 2014 STPL (DC) 889
DECL (Vijay Power Generators Ltd V/s Annai Engineering Works
and Another) in which Hon'ble Delhi High Court held that cheque
issued towards payment of price of goods, hence it is held that the
cheque has been issued for discharge of liability and lastly relying
on the short note in 2009 (4) AKAR (NOC) 717 (ORI) (Gyanaranjan
Patnayak V/s State of Orissa and Another). The Court held -
Dishonor of cheque -Complainant alleged to have given fully as
advance hand loan the accused failed to repay. Hence
presumption can be drawn in favour of complainant. Hence on the
basis of aforesaid rulings the learned counsel for complainant
prays for convict the accused in accordance with law.
10. As per the defence taken by the accused the learned
counsel for the accused cross examining the PW.1 in the cross
examination she has stated that she is getting salary of
Rs.30,000/- per month and she usually given any loan amount to
13 C.C.No.9209/2016
anybody by way of cash. Further she has not disclosed the loan
amount given to the anybody in her IT returns. She paid
Rs.6,00,000/- do not know the date but in the 3rd week of
December 2014 she given loan amount to the accused and at that
time she has not obtained any documents from him, she could not
able to say how many notes out of Rs.1,000/- and Rs.500/- notes
given to the accused, hence she obtained an amount of
Rs.2,50,000/- out of the chit transaction and she withdrawn an
amount of Rs.3,50,000/- from her Vijaya Bank account. In the
further cross examination the chit transaction run by one Murthy
and she has no obligation to pay the loan amount to the accused
by way of cheque or DD and she do not know how the accused
doing real estate business and she do not know the exact income of
accused. She came to know this accused through his father and
she voluntarily stated that when her father dead the accused
helped to the complainant financially and he paid two to three
times amount. Further she admitted that the accused is not at all
residing in Karnataka State but he residing at Hindupur, Andhra
Pradesh and the accused residing in the address other than the
address stated in the cause title of the complaint and she did not
had any bank account at Vijaya bank other than the SB account.
14 C.C.No.9209/2016
Her father was dead on 10.12.2012 due to road accident and her
father was hospitalized in the Ramaiah Hospital Rs.3,00,000/-
made a expenses of the said amount has been paid by this
complainant and she do not know how much has been mad
expenditure for construction of her house during year 2014 and
she has not doing any finance business. Ex.P1 cheque has been
returned by the accused and given to her but she denied that the
said cheque has been given to one Mr.Muttanna during the year
2013 and accused obtained loan amount of Rs.1,00,000/- from
him and she denied that the accused is no capacity to pay
Rs.6,00,000/- and the amount withdrawn from the Vijaya Bank
has been given to the hospital expenses on her father illness. She
has not given any amount to this accused etc,. Except the totally
denial of the case of the accused the complainant has not produced
any corroborative evidence to support on her case.
11. In support of the case of the accused the learned counsel
for the accused submitted that written argument by narrating the
facts and circumstances of the case stating that the accused had
given rebuttal evidence to the case of complainant hence the
accused may be acquitted in accordance with law. In support of
his contention is relying on the decisions reported in
15 C.C.No.9209/2016
1. 2015(1) SCC 99 (K. Subramani V/s K. Damodar
Naidu
2. AIR 2009 NOC2327BOM (Sanjay Mishra V/s MS.
Krishna Kapoor @ Nikki and another)
3. 2014(2) SCC 236 (John .K. Abraham V/s Simon.
C. Abraham and another)
4. AIR 2008 SC 1325 (Krishna Janardhan Bhat V/s
S. Dattatrya G. Hegde)
In these cases to Hon'ble Supreme Court of India held that
the complainant has to be establish sources of income to her and
then only presumption under Section 139 of N.I.Act can drawn.
Further relied on the decisions reported in
5. DCR 2008 (1) Page No.151 (K. Prakashan V/s P.K.
Surendran)
6. ILR 2009 (Karnataka) 172 (A. Vishwanath Pai V/s
Sri. Vivekananda S Bhat)
7. ILR 2009 (Karnataka) 4629 (Shiva Murthy V/s
Amrutharaj)
8. ILR 2007 (Karnataka) 2709 (Senguttuvan V/s
Mahadeva Swamy)
9. 2009 (1) Crimes 196 (BOM) (Sayeeda Iqbal Vakil
V/s Javeed Abdul Latif Shaik and Another)
10. 2008 (4) Crimes 196 (BOM) (Parukelar V/s
Pramod Meshram)
11. 2009 (2) Crimes 559 (MAD) Kalavally V/s
Parthasarathy
16 C.C.No.9209/2016
12. ILR 2009 (Karnataka) 1633 (SC) (Kumar Exports
V/s Sharma Carpets)
13. 2010(1) KCCR 94 (Smt.B. Indiramma V/s Eshwar)
In all these cases if the complainant failed to given
corroborative evidence and the evidence of accused is to be taken
into consideration stating that presumption under Section 139 of
N.I. Act in favour of the accused, hence the learned counsel for the
accused prays for acquittal of the accused.
12. On the basis of oral and documentary evidence of both
complainant and accused though the accused has not examined
the Mr.Muttanna in support of the case, but it is the duty of the
complainant to prove her case beyond all reasonable doubt by
stating specific date of which she advanced the loan amount to the
accused. Further the complainant also establish that the accused
is also due towards the interest as stated in her complaint. As
such the case of complainant creates doubtful, the accused given
rebuttal evidence to the case of complainant. What ever the
argument addressed by the complainant counsel and ruling relied
by him as stated above are not directly applicable to the case of
complainant. On the other hand written argument coupled with
the defence evidence and the documentary evidence and also list of
17 C.C.No.9209/2016
citations as stated above produced on behalf of accused are
applicable to the case of accused to show that the accused had
given rebuttal evidence to the case of complainant. As such the
accused is entitle for acquittal. Accordingly, I proceed to pass the
following.
ORDER
The complaint u/s. 200 Cr.P.C., filed by the complainant is hereby dismissed.
The accused is acquitted from the alleged offences punishable under Section 138 of N.I. Act and the accused set at liberty and his bail bond if any stands cancelled.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 16th day of March, 2017) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
ANNEXURE Witnesses examined for the Complainant:
PW.1 : Ms. Sangeetha .B Witness examined for the accused:
DW.1 : Mr. Edwin Bhaskar .M, List of Documents marked for the Complainant:
Ex.P1 : Cheque
18 C.C.No.9209/2016
Ex.P1a : Signature of the accused
Ex.P2 : Bank Endorsement
Ex.P3 and Ex.P4 : Another two endorsements
Ex.P5 : Copy of Legal Notice
Ex.P6 : RPAD Postal receipt
Ex.P7 : RPAD Postal cover
Ex.P7a : Notice in it
Ex.P8 : Vijaya Bank Statement of Account
Ex.P9 : Earlier cheque
Ex.P10 : Bank endorsement
Ex.P11 : List of Phone Messages
List of Documents marked for the accused:
Ex.D1 : Deposit of Accounts Counter foils. Ex.D2 : Deposit of Accounts Counter foils. Ex.D3 : Deposit of Accounts Counter foils.
Ex.D4 : ID Card of Accused
Ex.D5 : Letter of Indigos
Ex.D6 : Statement of Bank Account of the Accused
XXII ACMM, Bangalore.