Bangalore District Court
M.S.Ramaiah City Resident'S Welfare vs Shri Shirdi Sai Darshanam Trust on 10 August, 2015
IN THE COURT OF THE XXV ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE
Dated this the 10TH day of August, 2015.
Present: Sri. Shashikant B.Bhavikatti, B.Sc.L.L.B.,(Spl)
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No. 13673/2012
Complainant: M.S.Ramaiah City Resident's Welfare
Association (Regd)
West Gate, M.S.Ramaiah City,
J.P.Nagar, 8th Phase,
Bangalore 76.
Rep.by its President Sri.B.M.Eswaraiah.
(By Sri. Yeshu Mishra - Adv.)
- Vs -
Accused: 1. Shri Shirdi Sai Darshanam Trust,
# 53, 13th main,
Puttenahalli Palya,
Near Brigade Millenium,
J.P.Nagar 7th phase,
Bangalore 79.
Rep.by its President K.M.Gurumurthy @
Guruji, and Secretary Sharath.
Also at # CA-2, M.S.Ramaiah South City,
Kothunur Dinne main road,
J.P.Nagar , 8th phase,
Bangalore 78.
2.K.M.Gurumurthy @
Gurumurthy Guruji @Guruji
Secretary /President
2 Crl.Mis.13673/2012
Sri Shirdi Sai Darshanam Trust ,
#53, 13th main, Puttenahalli Palya
Near Brigade Millenium
J.P.Nagar, 7th Phase
Bangalore 79.
Also at # CA-2, M.S.Ramaiah South City,
Kothunur Dinne main road,
J.P.Nagar , 8th phase,
Bangalore 78.
3.Sharath,
Secretary,
#53, 13th Main, Puttenahalli Palya,
Near Brigade Millenium,
J.P.Nagar 7th Phase,
Bangalore 79.
Also at # CA-2, M.S.Ramaiah South City,
Kothunur Dinne main road,
J.P.Nagar , 8th phase,
Bangalore 78.
(By Shashi Kumar R-Adv.)
Offence complained of: U/s. 138 of Negotiable Instruments Act.
Plea of accused: Pleaded not guilty.
Final Order: Accused are Acquitted
Date of order: 10.08.2015
******
3 Crl.Mis.13673/2012
JUDGMENT UNDER SEC.355 OF CR.PC
The complainant filed this complaint under Sec.200
Cr.P.C.against the accused for the offences punishable under
Sec.138 Negotiable Instruments Act. (For short N.I.Act)
2.The case of the prosecution is as under :
The accused No.1 is a Trust while the accused No.2 and 3
are looking after the day to day affairs of accused No.1. The
complainant and the accused entered into compromise
dt.30.10.2010 in respect of some difference and as per the same,
the complainant in lieu of the agreed amount of Rs.1,50,000/-
payable by the accused No.1 was to deliver the possession of the
community hall at CA site 2, M.S.R.City, J.P.Nagar,8th Phase,
Bangalore to the accused. Towards the discharge of the same, one
of the cheques amongst three, bearing No.860654 dt.30.10.2011
for Rs.50,000/- drawn on HDFC Bank issued by the accused came
to be dishonored by bank memo dt.2.11.2011. Inspite of issuance
of legal notice dt. 29.11.2011 by the complainant calling upon the
accused to pay the same and inspite of the service of the same, the
4 Crl.Mis.13673/2012
accused failed to pay the due amount to the complainant. Thus,
the accused committed the alleged offence. Hence, this complaint.
3. In pursuance of the process issued, the accused
appeared before the court and they are on bail.
4. Copy of the prosecution papers are furnished to the
accused as required under law.
5. Plea under Sec.138 N.I.Act is framed , read over and
explained to the accused in vernacular. The accused pleaded not
guilty and claimed the trial.
6. On behalf of the complainant, its President got examined
as PW 1 and got marked the documents at Ex.P.1 to Ex.P.23.
7. The incriminating circumstances found in the case of
prosecution against the accused is read over and explained to the
accused in vernacular. The accused denied the same. On behalf of
the accused, the accused No.2 got himself examined as DW1 and
got marked the documents at Ex.D.1 to Ex.D.5. The
Trustee/Contractor of Accused No.1 is examined as DW2 .
8. Heard arguments and perused the materials on record..
5 Crl.Mis.13673/2012
Whether the complainant proves that the
accused issued the cheque in favour of
the complainant and the same was
dishonored and even after sending
demand notice accused have failed to pay
the cheque amount and thereby guilty of
the offence punishable under Section 138
of N.I.Act?
Is the point for determination.
REASONS
9. The date of presentation of the cheque is 2.11.2011. The
date of cheque is 30.10.2011. The date of return of the cheque is
2.11.2011. The date of legal notice issued by the complainant is
30.11.2011. The date of receipt of the said notice is 01.12.2011.
The date of reply given by the accused is 16.12.2011. The reason
shown for dishonour of the cheque is "Payment stopped by the
Accused "
10. The defence of the accused as per Ex.P.16 namely the
reply notice given to the complainant is that they have no dues
payable to the complainant as alleged . It is further defence of the
accused that, the President of the complainant association collected
6 Crl.Mis.13673/2012
the said cash amount from the accused on 01.05.2011 and
promised to return the said cheque. However, with a dishonest
intention and for wrongful gain, the complainant presented the said
cheque without returning. Thus the disputed fact is prior payment of
the said amount shown in the cheque. According to the accused the
said amount is already paid before presentation of the cheque
Ex.P.20 is the contended compromise. Its contents shows that the
accused issued three cheques for Rs.50,000/- each to the
complainant and one amongst them is the cheque involved in this
case.
11. Pw 1 in his evidence deposes that a compromise came
to be entered between the complainant and the accused on
21.10.2010. As per the terms of the compromise, the complainant
association agreed to deliver possession of the contended
community hall for Rs.1,50,000/- to the accused and in lieu of the
same, the accused issued three cheques and one amongst them is
the disputed cheque for Rs.50,000/-. The first 2 cheques came to be
honoured while the disputed cheque is dishonored due to stop
payment instruction made by the accused.
7 Crl.Mis.13673/2012
In cross examination it is the version of PW 1 that the BDA
Authority had not given permission for making construction in the
said place. He further deposes that, the agreement was to make
construction in lieu of Rs.1,50,000/-. He denies the suggestion that
the complainant had agreed to return back the said amount and
that therefore the accused had issued three cheques. He admits
receipt of the amount of remaining two cheques by the complainant.
He denies the suggestion that on 01.05.2011, the complainant
received the remaining amount of Rs.50,000/- in the form of cash
agreeing to return the cheque. According to PW 1 totally an amount
of Rs.1,00,000/- is received by the complainant as shown in
Ex.P.21 and Ex.P.22 . He explains that balance of Rs.50,000/- is not
shown to be payable by the accused as per Ex.P.21 to Ex.P.23.
Thus the evidence of PW 1 if carefully scrutinized it discloses that he
denies specifically the suggestion that Rs.50,000/- in lieu of the
disputed cheque is already paid to the complainant. That is what is
the defence of the accused.
8 Crl.Mis.13673/2012
12. DW1 in his evidence deposes that the accused had
obtained the site in question on lease for 30 years and that the said
site is given to the accused on behalf of BDA. He further deposes
that the complainant had constructed a small shed therein. He
bought the same to the notice of BDA, Banashankari as per Ex.D.1.
On 30.10.2010 at the spot according to him, the complainant told
the accused that though the said site was sanctioned to the
complainant the same is cancelled due to non payment. The
complainant further made a demand of Rs.1,50,000/- from the
accused for vacating the same . He further deposes that Ex.P.20,
namely the said agreement in the form of compromise came to be
entered between the complainant and the accused, thereafter as
per the compromise, the accused gave three cheques and
amongst the three cheques first two cheques came to be encashed
by the complainant. In the meantime on enquiry and in presence of
the complainant , the accused came to know that the said site is not
sanctioned to the complainant . He further deposes that in May,
2011 while he was out of station and while the accused were
making construction of compound wall, a person by name Kiran
9 Crl.Mis.13673/2012
namely the activist of the accused paid Rs.50,000/- to the
complainant in the form of cash on their demand. Thereafter, the
complainant carried the article in the said property and that the
accused asked for the disputed cheque, but, they did not return the
same. He further deposes that thereafter they stopped the payment
as per Ex.D.2. Again on 17.12.2012, the accused received a letter
from the BDA i.e Ex.D.3 that the said site is not sanctioned to the
complainant. Thereafter, the accused demanded back the amount
already paid by them, but, the complainant did not return back the
same. According to him, there was sufficient balance in the account
of the accused on relevant date as per Ex.D.4 and Ex.D.4(a).
13. DW2, namely Kiran deposes in support of DW1 that an
amount of Rs.50,000/- is paid to Eshwaraiah on 1st of May, 2011
while compound construction was going on as Eshwaraiah
demanded said amount to be needed urgently by the complainant
assuring that the disputed cheque would be returned back.
14. In cross examination, DW1 sticks up to the stand that
they stopped payment since the complainant did not return the
cheque inspite of receipt of remaining amount of Rs.50,000/- in the
10 Crl.Mis.13673/2012
form of cash. However, he explains that the said amount is not paid
in his presence by said Kiran. He further explains that, stop
payment instruction is orally intimated to the complainant . He
further explains that no receipt is obtained by Kiran in lieu of the
said amount paid to Eshwaraiah. On the other hand he denies that
no such amount is paid to Eshwaraiah. He further denies that the
accused are liable to pay remaining Rs.50,000/- to the complainant.
DW2 in cross examination explains that he paid that amount to
Eshwaraiah at the telephone intimation of DW1 and that the said
payment is entered in the account pertaining to the accused. At the
same time he denies that no such amount is paid as stated by him
to the said Eshwaraiah and that he was deposing falsely.
15. Ex.D.5 is another notice dt.20.06.2013 allegedly issued
by the accused to the complainant. As regards this document is
concerned, DW1 in cross examination admits that the said notice is
subsequent to Ex.P.16 reply given by the accused to Ex.P.3 the
mandatory notice of the complainant. However, he denies that
Ex.D.2 is subsequently created by the accused to misappropriate
amount of Rs.50,000/- belonging to the accused trust by both of
11 Crl.Mis.13673/2012
them. Ex.P.3 is dated 29.11,2011 while Ex.P.16 is dated
16.12.2011. However, Ex.D.5 is dated 20.06.2013. This complaint is
filed on 12.01.2012. Thus from the material on record it is clear that
Ex.D.5, the notice issued by the accused is not only subsequent to
Ex.P.16, but also during the pendency of this proceeding.
However, these circumstances are necessary to be considered at
later stage while appreciating evidence on record. As per Ex.D.5,
the accused intimated the complainant that the said association
was illegal and unauthorized without permission of BDA to put up
any structure which the accused came to know in September, 2012.
It is also intimated that on 17.12.2012, BDA furnished reply through
its officials and confirmed that no permission is granted to the
complainant nor there is any plan sanction, permitting the
complainant to put up the structure in the said site. This appears
to be subsequent defence made by the accused which requires
consideration at a later stage.
16. The question is whether the accused are able to
establish that the cheque amount is already paid to the complainant
on 01.05.2011. If factual circumstances about this defence are
12 Crl.Mis.13673/2012
carefully scrutinized, except the oral evidence of DW1 and Dw2,
there is nothing on record in support of the said defence. In the
documents produced by the accused at Ex.D1 to Ex.D.5 also there
is nothing about the said payment as deposed by DW1 and DW2.
Thus, the accused reliy upon the oral evidence alone in support of
their defence that the cheque amount is already paid to the
complainant on 01.05.2011. As regard the allegation of the
complainant that the cheque is dishonoured for the reason
"payment stopped" and therefore the alleged offence is complete,
the accused reliy upon Ex.D.4(a). Ex.D.4(a) is the relevant portion
of Ex.D.4, the bank statement for the relevant date i.e on
31.10.2011. If Ex.D.4 is seen , it goes to show that there is
sufficient balance to meet out the cheque amount as per Ex.D4(a) in
the said account. Though PW 1 denies this suggestion, in cross
examination of DW1 and DW2 nothing is established to disbelieve
Ex.D4(a) . Thus, it is clear that there was sufficient balance to meet
the cheque amount on the relevant day as deposed by DW1 and
DW2. Thus, it is clear defence of the accused that the cheque is
dishonoured for the reason "stop payment" but, not for the reasons
13 Crl.Mis.13673/2012
of "no sufficient funds in the account of the accused". Obviously , it
is the defence made by the accused in support of the 2nd defence.
In other words, it is the say of the accused that, as per their reply to
the mandatory notice they had stopped the payment for the reason
that they have already paid that amount to the complainant in the
form of cash. However, the accused even by probability of
preponderance have failed to show that they have paid the cheque
amount in support of their defence and they had stopped the
payment. From the circumstantial and factual evidence the
conclusion is that , the accused have failed to establish their defence
that they have paid the cheque amount and that the complainant
had agreed to return the cheque in lieu of the same.
17. The counsel for the complainant relies on the following
list of authorities as shown below:
1. HMT Watches Ltd V/s.M.A.Abida and another [ Criminal
Appeal No.471/2015].
2. Pulsive Technology P.Ltd,. V/s.Sate of Gujarath &
Ors.[Criminal Appeal No.1808/2014].
14 Crl.Mis.13673/2012
18. The counsel for the accused relies on the following list of
authorities as shown below:
1. 2008 Crl.L.J.1172(SC) - Krishna Janardhan Bhat
V/s.Dattatreya G.Hegde.
2. ILR 2008 KAR 4629 - Shiva Murthy V/s.Amruthraj.
3. ILR 2009 KAR 172 - Sri.A.Vishwanath Pai
V/s.Sri.Vivekananda S.Bhat.
4. 2009 (1) DCR 455 - Tejaram Ramnath Mourya
V/s.Ramasrey Haridas Soni & another.
The principles relied upon by both the counsels are made applicable
to the facts and the circumstances of this case as and where they
are found applicable.
19. The question is whether such dishonour by making stop
payment for the reasons shown by the accused is recognized under
law. No doubt the accused failed to establish even by principle of
preponderance that the contended amount is paid by them and that
they were justified to stop payment. The recognition of such
dishonour should be shown by the complainant that it is recognized
by law. In other words the complainant is bound to show that such
dishonour is based on legal aspects. One has to go through
15 Crl.Mis.13673/2012
Ex.P.20 , Ex.D5, Ex.P.3 and Ex.P.16. Since there is no dispute
about Ex.P.20,namely the compromise , the contents of the same
become relevant here. The complainant in his complaint except
saying that there was compromise as per Ex.P.20, pleaded nothing
about its contents so also the background pertaining to it. However,
DW1 in his evidence deposes such background pertaining to
Ex.P.20 which are not disputed by the complainant. In the
circumstances, Ex.P.20 becomes material document to show the
base for alleged transaction. In other words it is material for the
complainant to show that Ex.P.20 is based on lawful object. No
doubt Ex.D.5 came into existence during the pendency of this
proceedings. However, the contents of Ex.D.5 which are relevant to
the defence pertaining to legality of Ex.P.20 are relevant since such
question of law can be raised at any time. In this background if the
defence of the accused with regard to Ex.D.5 is considered, it is their
specific defence that Ex.P.20 itself is illegal and therefore the
alleged offence is not attracted. At this stage it is necessary to go
through Ex.D.3 namely the letter issued by the BDA. The contents
of said letter goes to show that no map sanction is given to the
16 Crl.Mis.13673/2012
complainant by BDA , in respect of the said site. Ex.D.1 and
Ex.D.3 which are relevant to the said circumstances are not
disproved by the complainant in cross examination of DW1. In this
background, if the contents of Ex.P.20 are scrutinized there is
alleged writing that both parties have mutually agreed to the terms
and conditions as per Ex.P.20. The conditions are that the
complainant will hand over the possession of the site to the accused
in lieu of Rs.1,50,000/- payable by the accused through 3 cheques
amongst which is the disputed cheque. Ex.P.20 does not disclose
who is the owner or lawful possessor of the site in question in
respect of which Ex.P.20 came into existence. Neither in the
complaint nor in the evidence the complainant has stated anything
about the same. In fact the circumstances relating to title and
possession have been suppressed not only in Ex.P.20 but also in
the evidence by the complainant before the court. In such
circumstances, the evidence adduced by the DW1 in respect of
Ex.P.20 which questions its legality becomes relevant On the other
hand, PW 1 in his evidence deposes that BDA cancelled the
allotment due to non payment of the amount by the complainant.
17 Crl.Mis.13673/2012
He also deposes that BDA had not given any permission to make
construction in the said site. He deposes that, the plot was allotted
to some others after canceling allotment of complainant. This goes
to show that as on the date of Ex.P.20, there was no material to
show that the complainant was the lawful owner or the possessor
of the said site. In other words, the object under which Ex.P.20
came into existence was not lawful. In other words Ex.P.20 is prima
facie illegal compromise based upon which the alleged transaction
took place. Thus, it is clear that when the object of compromise
itself is illegal, there is no question of attracting ingredients of
Sec.138 of N.I.Act. Thus, the presumption shown to be in favour of
the complainant through facts is rebutted by the accused by virtue
of Ex.D.1 and Ex.D.3. As already discussed above, Ex.D.1 and
Ex.D.3 are not rebutted by the complainant so as to disbelieve the
version of DW1. In the circumstances, the alleged facts goes to the
very root of the maintainability of the transaction which took place
by virtue of Ex.P.20. In other words, the alleged dishonour shown
by actual aspects is not recognized by law which goes to very root
of the case. In other words , the accused in my considered view
18 Crl.Mis.13673/2012
are found "NOT GUILTY". Accordingly , I answer Point for
determination in the "NEGATIVE".
For the aforesaid reasons, I proceed to pass the following:
ORDER
Acting under Section 255 (1) of Cr.P.C, accused are hereby acquitted for offence punishable under Section 138 of Negotiable Instruments Act 1881.
The bail bond stands cancelled. (Dictated to the Stenographer transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 10th day of August, 2015).
(Shashikant B.Bhavikatti) XXV A.C.M.M., BANGALORE.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : B.M.Eswaraiah.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque.
Ex.P.1(a) : Signature.
Ex.P.2 : Endorsement.
Ex.P.3 : Office copy of the legal notice.
19 Crl.Mis.13673/2012
Ex.P.4 : Postal Receipts
To 9
Ex.P.10 : Postal acknowledgements.
To 15.
Ex.P.16 : Reply Notice.
Ex.P.17 : Complaint.
Ex.P18 : Authorization letter. Ex.P.19 : Registration Certificate. Ex.P.20 : Letter Ex.P.21 : Ledger Account.
&22
Ex.P23 : Certificate.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
Dw1 : K.N.Gurumurthy.
DW2 : Kiran.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
Ex.D.1 : Copy of the application.
Ex.D.2 : Letter.
Ex.D.3 : Letter issued by BDA.
Ex.D.4 : Bank Statement.
Ex.D.4(a) : Relevant portion. Ex.D.5 : Copy of the Notice.
(Shashikant B.Bhavikatti) XXV A.C.M.M., BANGALORE. 20 Crl.Mis.13673/2012 DT.10.08.2015.
For Judgment:
ORDER Acting under Section 255 (1) of Cr.P.C, accused are hereby acquitted for offence punishable under Section 138 of Negotiable Instruments Act 1881.
The bail bond stands cancelled.
XXV A.C.M.M., BANGALORE. 21 Crl.Mis.13673/2012