Bangalore District Court
Sri. Kumara vs Sri. Vinayaka Keshava Bhandari on 13 May, 2019
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SRI. NAGARAJEGOWDA. D. B.Com, L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO.21800/2017
Dated: This the 13th day of May-2019
COMPLAINANT/S: Sri. Kumara,
S/o. Sri. Shivanna,
Aged about 41 years,
R/at. No.512, Opp AIT College,
Mallathalli Ring Road,
Nagarbhavi,
Bangalore-560056.
ACCUSED: Sri. Vinayaka Keshava Bhandari,
S/o. Keshava Bhandari,
Aged about 40 years,
R/at. 21, 3rd 'A' Cross,
Nagarbhavi Village,
Bangalore - 560 072.
Offence Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Acquitted
**
JUDGMENT 2 C.C.21800/2017
:: JUDGEMENT ::
The complainant filed the private complaint under Section.200 of Cr.P.C alleging that, the accused person has committed an offence punishable under Section.138 of Negotiable Instruments Act.
2. The brief facts of the complainant case as per Ex.P11 complaint reads as follows:
The accused is the proprietor of Sri. Gajanana Juice Centre situated at Nagarbhavi, Bangalore. The complainant is having a borewell agency in the name and style of Sri.Benaka Borewells and Pumps and working as a drilling contractor. The complainant office is next to the accused shop from past 9 years. On 10.12.2016 the accused approached the complainant for a hand loan of Rs.8,00,000/- by telling that he was in great financial difficulties for opening the new shops in and around Bangalore City. The complainant has adjusted the said amount and on request of the accused, the complainant has given the said amount in cash as a hand loan with an interest of 18% p.a in second week of December 2016. The JUDGMENT 3 C.C.21800/2017 accused promised to return the said amount within 6 months and also gave post dated cheque bearing no.514295 drawn on Corporation Bank, NLSIU Branch, Bangalore, dated 03.06.2017. As per the assurance of the accused the complainant presented the said cheque for collection to his bankers namely, The Janatha Co-operative Bank Ltd., Malleshwaram Branch, Bangalore, but the same was dishonoured with an endorsement, dated 06.06.2017 due to "Funds Insufficient". The complainant personally approached the accused regarding the dishonour of the cheque, the accused assured that he will make payment in cash. In order to cheat the complainant the accused has not paid any amount intentionally, deliberately and with malafide intention had issued the said cheque to the complainant. There afterwards, the complainant got issued legal notice to the accused on 15-06-2017 and the same is duly served to the accused on 18.06.2017. For that accused issued reply notice on 28.06.2017 and requested for xerox copy of the cheque. The complainant sends a xerox copy of the cheque on 03.07.2017. After receipt of xerox copy he send an untenable reply without JUDGMENT 4 C.C.21800/2017 complied the terms of notice and thus the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and punish the accused in accordance with law in the interest of justice and equity.
3. After recording sworn statement of complainant with documentary evidence, this court has registered the case against the accused for the offence punishable under Section.138 of Negotiable Instruments Act. Summons issued to the accused, the same is duly served upon him. The accused appeared through his counsel and enlarged on bail. There afterwards, plea of accusation read over and explained to the accused in the language known by him and he pleaded not guilty and claims to be tried.
4. In support of the case of the complainant, the complainant given sworn statement as P.W.1 and got marked Ex.P1 to P11 and further in cross-examination got marked Ex.P12 to P14 and this P.W.1 has been fully cross- examined by the accused counsel and thus the complainant closed his side evidence.
JUDGMENT 5 C.C.21800/2017
5. There afterwards, accused person examined under Section.313 of Cr.P.C. statement, in which he totally denied the entire case of the complainant. Inspite of sufficient opportunity the accused did not chose to lead his side defence evidence. Hence his side evidence taken as nil.
6. I have heard the arguments of complainant counsel on merit.
In support of the case of the complainant, the learned counsel for complainant relying on the decisions reported in (2015) 8 SCC 3 78 (T. Vasanthakumar V/s. Vijayakumari). In which the Hon'ble Supreme Court has held that, as per the business transacting party would give a cheque which is of the decade 1990 in relation to the transaction in 2007. It is held that by itself, by absence of any other evidence, cannot be conclusive of the fact that the cheque was issued in 1999. Further relying on LAWS (KAR) 2017 3 78 (Arjun v/s E.Shekar) in which Hon'ble High Court of Karnataka held that judgment, the first appellate court has made reference to the defence raised by JUDGMENT 6 C.C.21800/2017 the accused. Looking to the judgment and order of the first appellate court also, it clearly goes to show that it has re- appreciated the entire matter and accordingly, held that there is no illegality committed by the trial court in the course of such conclusion.
7. Further relied on the LAWS (KAR) 2014 6 28 (Sripad v/s Ramadas M. Shet) in which Hon'ble High Court of Karnataka held that probabilities placed by the accused have the capacity to preponder over the case of the complainant then only such materials should be accepted. Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharged the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt. Further relying on the decision in 2001 CRI.L.J.4647 (Hiten.P.Dalal v/s Bratindranath Banerjee) in which Hon'ble Supreme Court has held that - (B) Dishonour of cheque - presumption that cheque was drawn for discharge of liability of drawer etc,. Accordingly, the learned counsel for complainant prays for conviction of accused in accordance with law.
JUDGMENT 7 C.C.21800/2017
8. In support of the case of the accused the learned counsel for accused submitted written arguments by narrating facts and circumstances of this case and prays that the accused has not committed offence as alleged by the complainant and prays for acquittal of accused in accordance with law.
9. On the basis of aforesaid facts and circumstances, the following points arises for my considerations:
POINTS
1. Whether the complainant proves that for discharge of hand loan of Rs.8,00,000/- given to the accused in the 2nd week of December 2016 with interest at 18% p.a. The accused issued cheque bearing No.514295, dated: 03-
06-2017, drawn on Corporation Bank, Bangalore for aforesaid closure of hand loan to the complainant. The complainant has presented the said cheque for collection through his banker but the said cheque is dishonoured due to 'Funds Insufficient' on 06-
06-2017. Inspite of issuance of legal notice to the accused sent through RPAD, and accused did not comply the terms of notice but issued JUDGMENT 8 C.C.21800/2017 untenable reply and thus the accused has committed an offence punishable under Section.138 Negotiable Instruments Act?
2. What order?
10. My answers to the above points are as follows:
Point No.1: In the Negative,
Point No.2: As per the final order,
for the following.
REASONS
11. POINT NO.1: In support of the case of complainant, the complainant had given sworn statement filed by way of affidavit as PW.1 in which he has stated that, the accused and the complainant are doing their respective business and knowing each other. The accused to improve his business obtained hand loan of Rs,8,00,000/- and agreed to pay interest at 18% p.a in the month of December 2016 and undertaken to repay the said amount within 6 months. The accused issued post dated cheque bearing No.514295, dated: 03-06-2017, drawn on Corporation Bank, Bangalore. The complainant has presented the said cheque JUDGMENT 9 C.C.21800/2017 for collection through his banker but the said cheque is dishonoured due to 'Funds Insufficient' on 06-06-2017. Inspite of issuance of legal notice to the accused sent through RPAD on 15.06.2017 instead of complying the notice the accused issued untenable reply and thus the accused has committed an offence punishable under Section.138 Negotiable Instruments Act.
12. In support of the case of the complainant, the complainant got marked Ex.P1 to P11. Ex.P1 is the cheque alleged to be issued by the accused and identified the signature of the accused as Ex.P1(a). Ex.P2 is the endorsement issued by the banker stating that Ex.P1 cheque is dishonoured due to 'Funds Insufficient'. Ex.P3 is the copy of legal notice. The same has been sent to the accused through RPAD as per Ex.P4, postal receipt and the same is duly served to the accused as per Ex.P5, postal acknowledgment. Further got marked Ex.P6 is the reply notice issued by the accused through his counsel seeking xerox of the alleged cheque in question. Ex.P7 is the reply notice issued by the complainant and same has been sent to the accused as per Ex.P8, postal receipt. The same is JUDGMENT 10 C.C.21800/2017 duly served to the accused as per Ex.P9, postal acknowledgment. Ex.P10 is the reply notice issued by the accused stating that he has not at all obtained any amount of Rs.8,00,000/- from the complainant and for the repayment of the said amount the accused has not at all issued any cheque in his favour. Hence he prays for acquittal and dropping the case against him. In the further cross-examination of complainant, in order to prove that the complainant had sufficient amount with him, for that got marked Ex.P12 to P14 are the Janatha Co- operative Bank pass book of the year 2016-2018. In the said pass book the complainant has made several transaction with the bankers and at the end of 2018 he had balance of Rs.6,74,185/-. In the said documentary evidence no where it is mentioned about drawing of the amount of Rs.8,00,000/- which was given to the accused, the same is submitted by P.W.1 in his cross-examination and also denied the entire case of the accused and alleged cheque in question and is entitled to discharge his liability towards complainant. In the complaint, the complainant has never said about for discharge of legal liability the JUDGMENT 11 C.C.21800/2017 accused issued Ex.P1 cheque in his favour. Except stating the accused issued a cheque with a deliberate intention and also to cheat the complainant etc., against to the contention of Ex.P8 reply notice the complainant has not issued any rejoinder or counter by admitting or denying the facts stated in the Ex.P10 reply notice. As stated the complainant has not approached this court in proper manner and he failed to prove that he had given hand loan of Rs.8,00,000/- to the accused. As such decisions relied by the complainant counsel as stated above are not applicable to the case of complainant to prove that the accused issued Ex.P1 cheque for discharge of any legal liability towards the complainant. Though the accused did not stepped in to witness box, but it is the duty of the complainant to prove the alleged guilt of the accused beyond all reasonable doubt but failed to prove the same. Hence, the accused is entitled for acquittal. Accordingly, I answered Point No.1 in the Negative.
13. POINT NO.2: From the forgoing reasons, I proceed to pass the following:
JUDGMENT 12 C.C.21800/2017
ORDER Acting under Section. 255(1) Cr.P.C., the accused is acquitted from the alleged offence punishable under Section.138 of Negotiable Instruments Act.
The accused is set at liberty and his bail band and surety bond if any will be continued for a period of 6 (six) months in compliance of under Section.437(a) Cr.P.C. (Dictated to the stenographer, corrected and then pronounced by me in the open court on this the 13th day of May-2019) (NAGARAJEGOWDA. D.) XIII Addl. C.M.M., Bengaluru.
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Mr. Kumara Documents marked on behalf of the complainant:
Ex.P1 : Cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Endorsement
Ex.P3 : Copy of Legal notice
JUDGMENT 13 C.C.21800/2017
Ex.P4 : Postal receipt
Ex.P5 : Postal acknowledgement card
Ex.P6 : Reply notice by accused
Ex.P7 : Reply notice by complainant
Ex.P8 : Postal receipt
Ex.P9 : Acknowledgment card
Ex.P10 : Postal acknowledgment card
Ex.P11 : Complaint
Ex.P12 to P14 : Bank Pass books
Witnesses examined on behalf of the accused:
-NIL-
Documents marked on behalf of the accused:
-NIL_ (NAGARAJEGOWDA. D.) XIII Addl. C.M.M., Bengaluru.