Bangalore District Court
B.Jaya vs Ranganatha on 4 October, 2016
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 4th day of October - 2016
PRESENT: SRI. S.G.SALAGARE, B.Sc., LL.B.,(Spl)
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.30617/2010
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : B.Jaya,
W/o.Byrappa,
Aged about 42 years,
R/at. No.528, 8th Cross,
Pragathipura, Banashankari,
Kanakapura Main Road,
Bengaluru-82.
(Rep. by Sri.Chandra Mohan
Reddy.B.C, Advocate)
V/S
Accused : Ranganatha,
Aged about 48 years,
R/at. No.4, 6th Main,
4th Cross, BSK III Stage,
Pappaiah Garden,
Bengaluru-85.
(Rep. by Sri.R.Rajashekar, Advocate)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 04.10.2016.
(S.G.SALAGARE)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.30617/2010
JUDGMENT
This complaint is filed by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as under:
Complainant and wife of accused by name Kamalamma were working at Supreme Overseas Garments Factory, at Bengaluru and accused was acquainted with the complainant through his wife Kamalamma and they were family friends. During the 1st week of November, 2009, accused borrowed an amount of Rs.2 lakhs as hand loan from the complainant to discharge his financial obligations, and at the same time the accused had issued a post dated cheque bearing No.013566, dated:03.03.2010 drawn for Rs.2 lakhs drawn on State Bank of Mysore, BDA Complex, Banashankari II Stage Branch, Bengaluru in favour of complainant and assured that the said cheque will be honoured on its presentation.
It is further case of complainant that, on 03.03.2010, she has presented the said cheque through her banker viz., Syndicate Bank, Banashankari Main Branch, Bengaluru Judgment 3 C.C.30617/2010 for collection. On 06.03.2010, the said cheque was returned unpaid for the reasons "Funds Insufficient" in the account maintained by the accused. On 01.04.2010, the complainant brought this fact to the knowledge of accused by issuing demand notice through RPAD as well as Under Certificate of Posting. The notice sent by UCP was duly served upon accused and the notice sent by RPAD was returned unserved with a postal shara "Door Lock Intimation Delivered" dated: 05.04.2010. After service of notice accused has neither paid the cheque amount nor replied the notice. Hence, the complainant has filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act and prayed to punish the accused with maximum sentence and to award compensation to the complainant.
3. My predecessor after perusing records, took cognizance of offence, and recorded sworn statement, ordered to register Criminal Case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused after service of summons put his appearance through his counsel and has been Judgment 4 C.C.30617/2010 enlarged on bail. Thereafter, the court has recorded the plea of accused and the accused has pleaded not guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4. The complainant in order to prove her case, got examined herself as PW-1 and one witness as PW.2 and got marked six documents at Exs.P1 to P6 and closed her side. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under Section 313 of Cr.P.C., the accused denied all the incriminating evidence arisen against him. The accused counsel submitted no defence evidence on behalf of accused.
5. I have heard the arguments of both side counsels, and perused the materials placed on record.
6. The following points would arise for my consideration:
1) Whether the complainant proves beyond all reasonable doubt that, she had advanced Rs.2 lakhs hand loan to the accused and Ex.P1 -
cheque bearing No.013566, dated:03.03.2010 drawn for Rs.2 lakhs drawn on State Bank of Mysore, BDA Complex, Banashankari II Stage Judgment 5 C.C.30617/2010 Branch, Bengaluru is issued in favour of complainant for discharge of the said amount, and on its presentation, cheque came to be dishonoured for the reasons 'Funds Insufficient' and even after service of notice, the accused has failed to repay the amount and thereby accused is guilty of the offence punishable under Section 138 of N.I.Act?
2) What Order?
7. My findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : As per final order, for the following:
REASONS
8. POINT NO.1: It is alleged that, the accused had borrowed an amount of Rs.2 lakhs from complainant, and accused to discharge his liability has issued a post dated cheque bearing No.013566, dated:03.03.2010 drawn for Rs.2 lakhs drawn on State Bank of Mysore, BDA Complex, Banashankari II Stage Branch, Bengaluru in favour of complainant. When said cheque was presented for encashment, same was dishonoured for the reasons 'Funds Insufficient' in the account maintained by the accused. Even after issuance of demand notice, accused has not Judgment 6 C.C.30617/2010 made any arrangement for return of cheque amount. The accused has denied the accusation made against him.
9. To prove her case, the complainant got examined herself as PW.1 by filing her affidavit in lieu of her examination in chief evidence. In the affidavit, PW.1 has reiterated the averments made in the complaint and in support of her contention; PW.1 has got marked six documents. Among them cheque bearing No.013566, dated:03.03.2010 drawn for Rs.2 lakhs is marked as Ex.P1. The said cheque is drawn on State Bank of Mysore, BDA Complex, Banashankari II Stage Branch, Bengaluru in favour of complainant. The signature of accused is marked as Ex.P1(a). Ex.P2 is the Bank Endorsement issued by the State Bank of Mysore, the contents of Ex.P2 disclose that, the cheque bearing No.013566, dated:03.03.2010 drawn for Rs.2 lakhs is dishonoured for the reasons 'Funds Insufficient' in the account maintained by the accused. Ex.P3 is the Demand Notice dated:01.04.2010, the recitals of Ex.P3 disclose that, the complainant has issued this notice to the accused through her counsel. By issuing this notice complainant called upon the accused to repay the Judgment 7 C.C.30617/2010 cheque amount of Rs.2 lakhs within 15 days from the date of receipt of notice. Ex.P4 is the Postal Receipt, Ex.P5 is the UCP Receipt and Ex.P6 is the Unserved Postal Cover.
10. In order to prove her case complainant got examined one witness by name Chethan Kumar as PW.2 and got marked six documents at Exs.P1 to P6. In order to substantiate his contention accused has not entered the witness box.
11. In the cross-examination of PW.1 accused has suggested on page No.8 that, in the year 2007-08, PW.1 was doing chit business, and accused was the subscriber of the said chit transaction, and he was paying subscription amount of Rs.1500/- through Kamalamma. It is suggested that, accused had taken chit amount of Rs.30,000/- and at that time PW.1 had taken a blank signed cheque from accused. Even though accused has repaid the entire chit amount, but complainant has not returned the cheque and now the complainant has got filled up the cheque and lodged this complaint. These suggestions are denied by PW.1. PW.1 further denied the suggestion of accused that, "DgÉÆæUÉ ¸ÉÃjzÀ ¸À» ªÀiÁrzÀ SÁ° ZÉPÀÌ£ÀÄß CPÀæªÀĪÁV ºÀt ¸ÀA¥Á¢¸À®Ä Judgment 8 C.C.30617/2010 zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥Àr¹PÉÆArgÀÄvÉÛãÉ". From these suggestions it is crystal clear that, cheque belongs to accused and signature marked at Ex.P1(a) is that of accused. When accused has admitted the cheque and his signature marked at Ex.P1(a), then the initial presumption arises in favour of complainant under Section 118(a) of Negotiable Instruments Act, that complainant is holding the cheque for due consideration. Further, from the perusal of Exs.P1 to P6 it reveals that, complainant has complied the provisions of Section 138 of Negotiable Instruments Act. Hence, the initial presumption under Section 139 of Negotiable Instruments Act arises in favour of complainant that accused has issued the cheque Ex.P1 for discharge of legally recoverable debt. The presumptions arisen in favour of complainant under Sections 118(a) and 139 of Negotiable Instruments Act are rebuttable presumptions, and accused can rebut the presumptions by cross-examining prosecution witnesses or by adducing the defence evidence or by both.
12. To rebut the presumptions arisen in favour of complainant, accused has choosen to cross-examine PW.1 and PW.2 Judgment 9 C.C.30617/2010 At this stage this court has gone through the decision reported in Criminal Appeal No.2402 of 2014, between K.Subramani V/s K.Damodara Naidu, the Hon'ble Apex court is held that:
In the said ruling the Hon'ble Apex Court confirmed the Judgment of Trial Court acquitting the accused on the ground of capacity to pay the amount of cheque. In the above said ruling the Trial Court acquitted the accused on the ground that the complainant had no source of income to lend sum of Rs.14,00,000/-. In the appeal the 1st Appellate Court set aside the order and remanded the matter to the Trial Court to give an opportunity to complainant to prove the same. The accused went in appeal before the Hon'ble Apex Court and the Hon'ble Apex Court has set aside the order of the 1st Appellate Court and upheld the acquittal order passed by the Trial Court.
13. The principle laid down in the above said decision is that, even though the initial presumptions arises in favour of complainant under Sections 118(a) and 139 of Negotiable Instruments Act, and complainant has to prove her capacity to lend the amount of Rs.2 lakhs to the accused. When the accused has questioned the capacity of Judgment 10 C.C.30617/2010 complainant to pay an amount of Rs.2 lakhs, burden shifts on the complainant to establish the same. In the examination in chief PW.1 has reiterated the averments of the complaint i.e., PW.1 has stated that accused has approached her and borrowed an amount of Rs.2 lakhs from her in the month of November, 2009 and agreed to repay the said amount, accused has issued Ex.P1 cheque for discharge of his legal liability. But accused has denied the claim of PW.1. From the perusal of cross-examination of PW.1, it reveals that accused has denied the loan transaction alleged by the complainant. Accused stated that, he has not borrowed an amount of Rs.2 lakhs from the complainant and issued the cheque for discharge of said amount of Rs.2 lakhs.
14. The defence of accused is that, PW.1 was running chit business and he was one of the subscriber of the chit transaction and he was paying subscription amount of Rs.1500/- per month through one Kamalamma. Accused has taken the defence that, he had taken the bid amount of Rs.30,000/- in the chit transaction run by complainant and for the purpose of security he had issued blank signed Judgment 11 C.C.30617/2010 cheque and blank signed papers. The said cheque was utilized by the PW.1 and lodged this complaint. To substantiate his defence accused has not adduced any evidence. Accused has neither entered the witness box nor examined any witness nor produced any document in support of his contention. However it is a well established the principle that to prove his defence or to rebut the presumptions arisen in favour of complainant, accused need not enter the witness box. Accused can rebut the presumptions even during the cross of complainant witnesses.
15. Further it is contention of accused that, complainant was not capable to pay Rs.2 lakhs. In the cross- examination of PW.1, she stated that she was working in Supreme Garments in the year 2007-08, and she was getting monthly salary of Rs.4,000/-. Her husband was having Tata Sumo and Indica Car and same was used for hiring. Her husband was driving the Tata Sumo and he was getting an income of Rs.50,000/- per month from the vehicles. Accused has suggested to PW.1 denying that husband of PW.1 was having Tata Sumo and Indica Car, Judgment 12 C.C.30617/2010 but these suggestions are denied by PW.1. When accused denied the ownership of vehicles and income derived from the vehicles, then the burden is on the complainant to prove that her husband was owning the Tata Sumo and Indica Car. Complainant has not produced any document to show that her husband was having the above said vehicles.
16. PW.2 who is the son of PW.1 and he has stated that, after the death of his father he is running the Tata Sumo, but still complainant has not produced the RC Book or other documents pertaining to the vehicles owned by her husband or her son. The production of the documents pertaining to vehicles is very essential, because complainant stated that her family was having source of income from the Tata Sumo and Indica Car. In the absence of the material documentary evidence the oral testimony of PW.1 and PW.2 in respect of the existence of vehicles cannot be believed and accepted.
17. Complainant has stated in the complaint that, in the month of November, 2009 she paid Rs.2 lakhs as hand loan to accused. In the cross-examination PW.1 has stated that, Judgment 13 C.C.30617/2010 she drawn Rs.80,000/- from the Syndicate Bank and paid to accused. Further she stated that, remaining amount was in the house and in all she paid Rs.2 lakhs to the accused. PW.2 has stated in the cross-examination that, her mother had drawn Rs.60,000/- from the bank and Rs.1 lakh is obtained from the friends of his father and an amount of Rs.40,000/- which was available in their house was paid to accused. PW.2 stated that, he is not able to state the names of friends of his father from whom his mother taken Rs.1 lakh. PW.2 also admitted that, when his mother was working in the garment she was getting salary of Rs.4,000/- per month. PW.2 stated that, after the death of his father he is running the Tata Sumo. But to believe that the PW.2 is running the Tata Sumo he has not produced the R.C.Book. Complainant has not produced the Bank Statement of Syndicate Bank to show that she was having Rs.80,000/- in the bank in the month of November, 2009 and drawn the same. Complainant has not examined the persons who were lent Rs.1 lakh to her. PW.1 has not stated in the complaint and in her evidence affidavit that she borrowed Rs.1 lakh from the friends of her husband. Further, complainant has not explained Judgment 14 C.C.30617/2010 what was the necessity for her to borrow Rs.1 lakh from the friends of her husband and to pay to the accused. There is no documentary evidence to show that, complainant borrowed the amount of Rs.1 lakh from the friends of her husband and she has returned the same. Admittedly, complainant was having salary of Rs.4,000/- per month in the year 2007-08. Complainant has not stated that, she was working in the garments even in the year 2009 and thereafter. Complainant has not stated how much salary she was getting in the year 2009. Complainant has not produced any evidence in respect of income derived from the vehicles. There is no evidence that PW.2 is also earning money. If really complainant had borrowed Rs.1 lakh from the friends of her husband then complainant would have examined any such person. But complainant has not examined any person. Thus complainant has failed to establish that, she was having Rs.2 lakhs in the month of November, 2009 and paid the same to accused. The evidence placed on record clearly disclose that accused has rebutted the presumptions arisen in favour of complainant under Sections 118(a) and 139 of Negotiable Instruments Act.
Judgment 15 C.C.30617/2010
At this stage this court has gone through the decision reported in KCCR 12 (3) page 2057, the Hon'ble Apex court is held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
18. In the case on hand, complainant has failed to establish that she has paid an amount of Rs.2 lakhs to the accused and the accused has issued Ex.P1 cheque for discharge of the above said amount. Hence, the complainant has failed to prove the guilt of accused under Section 138 of Negotiable Instruments Act. In view of the above said reasons, I hold point No.1 in the Negative.
19. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.Judgment 16 C.C.30617/2010
The bail bond and surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 4th day of October - 2016) (S.G.SALAGARE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : B.Jaya PW-2 : Chetan Kumar.B
List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal Receipt Ex.P5 : UCP Receipt Ex.P6 : Unserved postal cover
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 17 C.C.30617/2010
04.10.2016.
Comp -
Accd -
For Judgment Judgment pronounced in the open court vide separate order.
*****
ORDER
Acting under Section 255(1) of
Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.