Bangalore District Court
Sri.G.P.Arun Kumar S/O vs Sri.M.Jagadish on 4 June, 2016
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BENGALURU CITY.
Dated : This the 4th day of June, 2016,
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl. C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.
C.C.No.28232/2014
Complainant : Sri.G.P.Arun Kumar S/o
Putte Gowda,
Aged about 42 years,
R/at #8, 1st Main, 2nd Cross,
Jannabharathi Post,
Mariyappanapalya,
Bengaluru-560 056.
(Rep.by A.M.Rama Murthy Reddy,
Advocate)
V/s
Accused : Sri.M.Jagadish,
R/at 1st Floor, No.22,
4th Main, Prakruthi Layout,
Hennur Cross, Bengaluru-560 043.
(Rep.by A.B.Narayanaswamy, Advocate)
Date of Institution : 05.07.2014.
Offences complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is acquitted.
Date of Order : 04.06.2016.
2 C.C.No.28232/2014
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 N.I.Act.
REASONS
The brief facts of the complainant case is as follows ;
2. The Complainant is doing Broom Business and
since one year the accused is used to purchase the
brooms from the Complainant in the wholesale on
credit business and dispose them off in retail. In this
regard the accused has developed good
acquaintance with the Complainant. The accused
used to give cheques to clear the bills/debts to the
Complainant and it was cordial for few months and
and the accused was paying his dues to the
Complainant promptly. Since few months accused
was not cleared dues to the Complainant. When the
Complainant demanded for payment of dues amount
of Rs.48,000/- the accused had issued a cheque
bearing No.443802, Dated: 20.04.2014 for Rs.48,000/-
drawn on Canara Bank, Kalyan Nagar Branch,
Bengaluru in favour of Complainant and assured the
Complainant to honour the said cheque on its
3 C.C.No.28232/2014
presentation. As per the instructions of the accused
the Complainant presented the said cheque for
encashment through his bankers State Bank of India
ISRO Layout Branch, Bengaluru. But the said cheque
returned unpaid with an endorsement as
INSUFFICIENT FUNDS the Complainant immediately
informed the same but the accused requested the
Complainant to re-present the cheque for collection it
will be honored etc., Accordingly, once again on
14.05.2014 . The Complainant presented cheque for
collection once again the same is returned unpaid
with an endorsement insufficient fund. The
complainant informed the accused about the
dishonour of the cheque and demanded for payment
of the cheque amount but the accused started
evasive reply to the Complainant. The Complainant
left with no other alternative got issued legal notice on
07.06.2014 through RPAD. But the Complainant has not
received the postal acknowledgment nor its returned
cover to this effect he had also filed complaint before
the postal authorities on 26.06.2014, till date the
accused has not repaid the amount. Hence, the
accused has committed the offences U/s 138 of N.I.Act
and Hence, the accused has committed the offences
punishable U/s 138 of N.I.Act and punish the accused
4 C.C.No.28232/2014
in accordance with law by awarding compensation
as per Sec.357 of Cr.P.C., in the interest of justice and
equity.
3. The accused appeared before this Court and
contest this case by denying the entire case of
complainant at the time of recording of Plea of
Accusation. In support of the case of the Complainant,
he adduced his oral evidence as PW-1 and got
marked Ex.P1 to Ex.P8 and at the time of the cross-
examination of DW-1 and got marked Ex.P9 and this
PW-1 has been duly cross-examined by the accused
counsel and thus the Complainant closed his side
evidence.
4. There afterwards, the accused person
examined U/s 313 of Cr.P.C on oath in which, he totally
denied the entire case of complainant and examined
himself as DW-1 and this DW-1 has been fully cross-
examined by the Complainant counsel and thus the
accused closed his side evidence.
5 C.C.No.28232/2014
5. I have heard the argument of Complainant
counsel on merit along with written argument relayed
on the decision reported in AIR 2010 SC 1898. On
behalf of the accused the learned counsel for the
accused submits written argument by narrating facts
and circumstances of the case and submits that the
accused had given rebuttal evidence to the case on
Complainant. Hence prays for acquittal of the
accused.
6.In support of the contention the learned
counsel for the accused also relied on the decisions
reported in AIR 2010 SUPREME COURT 1988.
Accordingly, he prays to convict the accused
inaccordance with law.
7. In support of the case of the complainant the
Complainant in his oral evidence as PW-1 by way of
affidavit in which he reiterated the complainant
contention got marked Ex.P-1 cheque alleged to be issued
by the accused and identified signature of the accused as
Ex.P-1 (a) the contents of the cheque for discharge legal
liability has been disputed by the accused. But he admitted
his business transaction with the
Complainant at that time he used to issue signed
blank cheque for the purpose of security towards
business transaction the cheque in question was not
6 C.C.No.28232/2014
issued for discharge of any debt or liability. Ex.P-2 and P-3
endorsement by the Bankers stating that Ex.P-1 cheque
was dishonoured due to funds insufficient. Ex.P-4 is the
legal notice this notice does contain the signature of
both the Complainant and his counsel but the father
name of the accused is kept blank. In this regard the
accused contended that the Ex.P-4 Legal notice is not
duly served to the accused. Hence, he has not given
reply notice to the Complainant. Ex.P-5 is the RPAD
Postal receipt having sent legal notice to the accused,
for non-receipt of postal acknowledgment the
Complainant lodged the Complaint to the postal
authority on 26.06.2014 requested for postal
acknowledgment as per Ex.P-6 for that the Postal
department issued the settled reply at Ex.P-7 stating
that the Ex.P-4 legal notice was returned with the shara
'insufficient address.' As such the Complainant is not
fulfilled the requirement as per U/s 138 (b) of N.I.Act. At
the time of the cross-examination of DW-1 in order to
show there was a business transaction with the
Complainant and accused got marked Ex.P-8 is the
Distributor's profile stands in the name of complainant
enterprises and identified the signature of the
accused as Ex.P-8 (a). As per this Distributor's
profile instead of Complainant filed a civil
7 C.C.No.28232/2014
case for recovery of any amount due but he filed this
case against the accused U/s 138 of N.I.Act without
complying the provision U/s 138 (a,b,c) of N.I.Act.
8. The accused has denied the entire case of the
Complainant in support of the denial of the case of
Complainant the accused examined himself as DW-1
on oath in which he admitted that he knows the
Complainant from the year 2013. He made a Broom
business with the Complainant and he took the Brooms
worth Rs.19,000/- from the factory of Complainant and
at that time he issued Ex.P-1 cheque as a security
except the signature the same was given in blank and
the contents of Ex.P-1 Cheque is not belongs to this
accused. During the year 2013 he repaid Rs.19,000/-
to the Complainant towards the purchase of Brooms at
that time the Complainant has not issued any receipt
for having received the said amount and also he did
not return the security cheque stating that he was busy
in business. Hence, for dishonour of Ex.P-1 cheque the
notice not duly served to this accused. Hence, he has
not committed any offences as alleged by the
Complainant. In the cross-examination of DW-1 the
Complainant counsel suggested that there was any
agreement taken between them at the time of the
8 C.C.No.28232/2014
Broom sale transaction. But he admitted that the
signature found on the Ex.P-8 i.e., Distributor Profile
belongs to this accused and he denied that along
with his sister he doing Broom business there monthly
turn over more than Rs.Three lakhs and he did not
know the signature found on the Ex.P-8 of one
Veerappaji but he knows him. Further, he admitted
that he had relation with the complainant. But the
Broom supplied by the Complainant were not upto the
mark. Hence, he stopped the purchase of Brooms
from the Complainant and he denied the rest of the
case of Complainant about for discharge of debt the
accused issued Ex.P1 cheque in question same was
dishonoured etc., In the further cross-examination he
9 C.C.No.28232/2014
admitted that summons issued from this Court was duly
served to the accused, but in further chief-
examination he has stated that the police have
telephoned him and called him to appear before the
Udupi Park Restaurant at Hennur Cross. Accordingly he
went to that place and collected the summons from
the Police, except the total denial of the contention of
the accused the complainant failed to prove that
after dis-honour of the Ex.P-1 cheque the notice issued
to the accused duly served.
9. As per the defence taken by the accused as
Dw-1 the accused counsel cross-examined PW-1 in the
cross-examination he tried to elicited that the alleged
cheque was not issued for discharge of debt etc. But
he had admitted that as per Ex.P-7 Postal cover
returned with shara the address of the accused is
insufficient etc., and he admitted that at Ex.P-8
Distrubutor Profile there is no name and signature of this
10 C.C.No.28232/2014
Complainant. Further on the Ex.P-1 cheque there is no
company name of this Complainant and he denied
that during the year 2013 the accused issued a Ex.P-1
cheque for the purpose of security except the
signature it was given in Blank the same has been
misused by this Complainant etc., In this regard on
careful perusal of the contents of Ex.P-1 Cheque and
the signature found on cheque are in different hand
writing and in different ink. Hence, the case of the
Complainant creates doubtful whether the accused
issued the alleged cheque in question for discharge of
legal liability.
10. In support of the case of Complainant submits
written arguments and submits that the Complainant
had full-filled all the ingredients of the offences
punishable U/s 138 of N.I.Act and convict the accused
in accordance with law and relayed on the decision
reported in AIR 2010 Supreme Court 1898 Rangappa
V/s Mohan in which the Hon'ble Supreme Court of
India held that Sec.138 - Existence of legally
11 C.C.No.28232/2014
recoverable debt or liability - Is matter of presumption
U/s.139.
11. In support of the defence taken by the
accused the learned counsel for the accused submits
written argument by narrating facts and circumstances
of the cases and submits that the Complainant had ful-
filled all the ingredients of the offences punishable
U/s 138 of N.I.Act and acquittal of the accused in
accordance with law.
12. In support of his contention he relied on the
following decision ;
i) reported in AIR 2010 (SC) page 1898
Rangappa V/s Mohan in which the Hon'ble Supreme
Court of India held that Sec.138 - Dishonour of
cheque on account of 'stop payment' instructions sent
by accused by Bank in respect of post dated cheque
S.138 is attracted etc.
13. But in this case Ex.P-1 cheque was
dishonoured due to insufficient fund the case of
accused stating the alleged cheque was issued for the
purpose of security. Accordingly, lead his side defence
12 C.C.No.28232/2014
evidence and also for dishonour of the alleged
cheque in question the legal notice sent by the
Complainant is not duly served to the accused. Under
such circumstances the Complainant failed to comply
all the ingredients of the offences punishable U/s 138 of
N.I.Act and hence accused is entitled for acquittal.
Accordingly, I pass the following:
ORDER
Acting U/s 265 of Cr.P.C. accused is acquitted for the offence punishable U/s 138 of N.I.Act.
The accused is set at liberty with bail bond and surety bond shall stands cancelled.
(Dictated to the Stenographer, transcript computerized by him, revised corrected and then pronounced by me in the open Court on this the 4th day of June, 2016) (NAGARAJEGOWDA.D) XXII ACMM, Bengaluru city.
13 C.C.No.28232/2014ANNEXURE Witnesses examined for the Complainant:
PW.1 : G.P.Arun Kumar.
Witness examined for for the accused :
DW.1 : M.Jagadeesh.
List of Documents marked for the Complainant:
Ex.P1 : Cheque, Ex.P1 (a) : Signature of accused, Ex.P3 : Endorsement, Ex.P4 : Legal notice, Ex.P5 : Postal receipt, Ex.P6 : Copy of Complaint to Post Office. Ex.P7 : Settled reply by postal Dept. Ex.P8 : Distributors profile, Ex.P8 (a) : Signature of accused,
List of Documents marked for the Accused : Nil.
XXII ACMM, Bengaluru.