Bangalore District Court
Sri C.Purushotham vs Sri Sathyanarayana.N on 17 September, 2016
THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY.
Dated this the 17th day of September, 2016,
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.13900/2015
Complainant : Sri C.Purushotham,
Aged about 62 years,
Son of late Chinnappa Naidu,
Residing at No.69/A, Pipe Line Road,
Manovana, Vijayanagar,
Bangalore - 560 040.
(By Sri.M.Ramachandra reddy.Adv.)
V/s.
Accused : 1.Sri SATHYANARAYANA.N.
Son of Sri Narasim Naidu,
Aged about 45 years,
2. Smt. V.Rathna,
Son of Sri Sathyanarayana.N.
Aged about 40 years.
Both are residing at # 10, 1st Cross,
Malkattamma lay out,
5th Main Road, Annapurneshwarinagar,
Nagarabhavi 2nd stage,
Bangalore 560 091.
(By Sri A.Vedamurthy & Asso ,.Adv.)
Date of Institution 18-05-2015
2 C.C.No.13900/2015
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
Final Order Accused is Acquitted.
Date of Order : 17.09.2016.
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 submits that accused is being the close
relative of complainant. Both accused have approached the
complainant and expressing their financial difficulties for an
amount of Rs.10,00,000/- for their legal and family necessities.
Believing the accused words, the complainant has paid a sum of
Rs.10 lakhs to the accused as hand loan on 24-2-2014 . The
accused have agreed to repay the aforesaid amount within
10months to the complainant. The complainant has repeatedly
requested the accused to repay the said amount. But both the
accused have promised to settle the said amount within ten
months and the accused have issued a cheque bearing No.
3 C.C.No.13900/2015
286977 dated 10-2-2015 of Rs.10 lakhs drawn on Cauvery
Kalpatharu Grameena Bank , Mallathahalli br, Bangalore .
Further the accused promised to the complainant the said cheque
would be honoured on the date of presentation. As per the
accused instruction the complainant has presented the above said
cheque through his banker i.e. Federal Bank Ltd., Vijayanagara
branch, Bangalore . But the said cheque came to be dishonoured
and returned with a bank endorsement as "Funds insufficient".
Immediately, the complainant has contacted the accused brought
to the accused knowledge about the fate of the cheque , but all
the efforts of complainant were put in vain and accused have
failed and neglect to repay the same with dishonest and mollified
intention. Thereafterwards, the complainant got issued legal
notice on 10-04-2015 to the accused, calling upon the accused to
pay the cheque amount . The said notices were refused to received
hence postal covers returned to the sender. . Inspite of service of
legal notice, accused did not replied or complied the notice and
thus accused committed the offence punishable u/s. 138 and 142
of NI Act and punish the accused in accordance with law and to
award suitable compensation., in the interest of justice and
equity.
4 C.C.No.13900/2015
3. The accused No.1 and 2 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 order to prove the case
of complainant, he adduced his oral evidence as PW-1 by way of
affidavit and got marked Ex.P1 to Ex.P8 and this PW-1 has been
fully cross examined by the accused counsel and thus
complainant closed his side evidence.
4. There afterwards, the accused-1 & 2 examined u/s.313 of
Cr.P.C. in which, they totally denied the entire case of
complainant . In support of their denial, A-1 lead his oral evidence
as DW-1 on Oath and got marked Ex.D1 to Ex.D19 and this DW-
1 has been fully cross-examined by the complainant counsel and
thus closed their side defence evidence.
5. I have heard the arguments of both complainant and
accused counsel on merit.
6. In order to prove the case of complainant, the
complainant adduced his oral evidence as PW-1 filed by way of
affidavit. In which, he reiterated complaint contention and got
marked Ex.P1 cheque alleged to be issued by the accused and
identified the signature of the accused as per Ex.P1(a) & (b). This
issuance of cheque in favour of complainant for discharge of legal
5 C.C.No.13900/2015
liability has been disputed by the accused. Further got marked
Ex.P2 is an endorsement issued by the bankers stating that Ex.P1
cheque was dishonoured due to "Funds insufficient". Ex.P3 is
the copy of legal notice . This notice does contain the signature of
the complainant and his counsel. Ex.P4 and Ex.P5 are RPAD
Postal receipts for having sent legal notice to the accused No.1
and 2. The notices were returned with the postal shara
"Addressee Refused hence, referred to sender". Ex.P6(a) and
Ex.P7(a) are legal notice in it. This service of notices to the
accused has been disputed by A1 and A2. Further in order to
show A1 and A2 have purchased property from one T.Shilpa for
that, got marked Ex.P8 is the Xerox certified copy of sale deed at
the time of cross-examination of DW-1 dated 23-05-2012.
7. On the basis of these documentary evidence, the
complainant contended that complainant had fulfilled all the
ingredients of the offence punishable u/s. 138 of NI Act and
punish the accused in accordance with law.
8. The accused No.1 and 2 have denied the entire case of
complainant . In support of their denial, A-1 lead his evidence as
DW-1 on Oath . In which he admitted that the complainant is
the relative and A-2 is his Wife. During the year 2013 in order to
6 C.C.No.13900/2015
construct his house, he is moving with the complainant at that
time , the complainant is doing development business and he
know the bank persons . Hence, he approached the complainant
for receiving the loan from the bankers and for that, the
complainant advised to bring property documents. Accordingly,
on 5-2-2013 he given his property sale deed and also Kandayam
paid receipt. At that time, on 5-3-2015 the complainant opened
bank account as per Ex.P1 cheque together with the name of A1
and A2. Thereafterwards the bankers have paid loan amount of
Rs.30 lakhs and the said amount has been deposited to their
bank account. At that time bankers took two signed blank
cheques but the complainant had taken eight blank cheques
belongs to the A1 and A2 after sanctioning of the loan from the
bankers, the complainant obtained blank cheques from the
accused for the purpose of security, the complainant and one
Kalyan and also one Ramji together running Wine Shop in the
name of Crazy Wine Shop. The owner of the said shop is one
Krishnamurthy and all of them have run the said wine shop from
the year 2009 to November, 2015. The complainant is looking
after day today affairs of the said wine shop and the profit out of
the wine shop have distributed themselves. At that time, there
was an agreement taken between them . The original agreement is
7 C.C.No.13900/2015
with the complainant. In the month of August, 2014, the
complainant asked to return the said wine shop to the
complainant for that, they have denied the same but others have
instructed the accused to run the said Wine Shop . After taking
permission from the owner of the Wine shop Krishna murthy A-1
and A-2 obtained license from the Excise Department . At that
time there was an ill will taken between the complainant and with
them . Hence by misusing of the security cheque , one cheque has
been misused through Purushotham and the alleged cheque has
been misused through the complainant brother in law Suresh and
also one cheque has been misused through the Sister's Son of the
complainant Raviraj and another cheque misused through the
complainant sister's daughter by name Meera and filed cheque
bounce case against these persons . Apart from these cheques
another four cheque in question is with the complainant. A1 and
A2 have not received any legal notice for dishonour of the cheque .
The address stated in Ex.P6 and Ex.P7 postal covers addresses is
not belongs to this accused persons.
9. In the further chief examination, he has stated that in
order to show loan sanctioned from the bankers for that , got
marked statement of account as per Ex.D7. In the cross-
examination of DW-1 he admitted that he knows the complainant
8 C.C.No.13900/2015
who is his relative and he do not know reading of English and
reading of Kannada and he not well versed in English reading and
he is doing Milk vending business for that, he is not having Cows
and he has not obtained any license for doing said milk business
and A-2 is his wife and she is getting the rent out of the house
property given by their parents for Harisina Kumkuma and she is
getting Rs.40,000/- rent out of the house property and he denied
that his wife is not having any house property and he is not doing
any milk business and he has not shown income derived from the
said business in the income tax returns but he had the income
tax returns for the year, 2013-2014. In the further chief
examination he produced the Gift deed alleged to be executed by
the mother of A-2 on 31-12-2007 as per Ex.D8. Further in his
chief examination , he produced the balancesheet, trading and
profit and loss account, income tax returns for the year, 2014 and
also the acknowledgement of the March, 2015 as per Ex.D11. In
the further cross-examination with respect of Ex.D8 Gift deed he
shown the same in Ex.D9 and he denied that he has not shown
these facts in the said Ex.D11 and he is paying income tax for the
year 2010-2015 . He produced the income tax returns as per
Ex.D15 to Ex.D17 . Further in his cross-examination as per
Ex.D12 Income tax returns, he was doing house keeping services
9 C.C.No.13900/2015
in the name of R.K.Groups . At that time what was his profit he
could not able to say and also as per Ex.D13 he could not able to
say his income and as per Ex.D14 to Ex.D16 he could not able to
say how income derived out of his business and he denied that
Ex.D12 to Ex.D16 I.T.Returns have been created for the purpose
of this case. As per these documentary evidence he was doing
milk business . In order to show he is doing R.K.Groups business
for that, he has not produced any documentary evidence.
10. Further in the cross-examination of DW-1, he denied the
entire case of complainant and stated that alleged cheque in
question was issued for discharge of liability towards the
complainant . Inspite of issuance of demand notice for
dishonour of the cheque , he intentionally not received the same
and he has denied that in the month of March, 2015 he was
residing in the addresses stated in the demand notice. Further he
denied that for discharge of any liability towards the complainant
issued a cheque in question and also he denied that as per Ex.D1
FIR he took a loan of Rs.27 lakhs from the complainant and built
his house. Further he admitted that he has not shown in his
income tax returns about the expenditure made for construction
of his house in Ex.D9 to Ex.D11 I.T.Returns and also he has not
shown in his income tax returns about obtaining loan from the
10 C.C.No.13900/2015
bankers. In the further chief examination he got marked Ex.D18
and Ex.D19 are the Loan short enquiry and also on 24-8-2012 he
sold his one of the property to one Muniraju amounting to Rs.45
lakhs etc.. In the further cross-examination of DW-1, he admitted
that Ex.D18 was issued by the bankers and he denied that as per
Ex.D19 sale deed the sale consideration is only amounting to
Rs.17 lakhs but he admitted that the said Rs.17 lakhs has been
received as per the contents of sale deed but he voluntarily stated
that actually he sold the said property for amounting to Rs.54
lakhs. He denied that in order to cheat this complainant, he taken
an untenable contention without giving corroborative evidence but
at the end of cross-examination he admitted that signature found
on Ex.P1 cheque belongs to this accused etc..
11. As per the cross-examination of DW-1, at the time of
cross-examination of PW-1 by the accused counsel got marked
Ex.D1 is the certified copy of FIR lodged by the complainant
against the accused stating that A1 and A2 obtained loan of Rs.27
lakhs and issued a cheque in question by both the accused and
their son . Further without returning the loan amount to this
complainant threatened them with dire consequences etc.. Ex.D2
is the certified copy of the complaint lodged by one Purushotham
against A-1 for dishonour of the cheque . Ex.D3 is another
11 C.C.No.13900/2015
certified copy of complaint lodged by Purushotham against this
A-1 for dishonour of the cheque . Ex.D4 is the another certified
copy of the complaint lodged by one P.Kissan against A-2 for
dishonour of the cheque . Ex.D5 is the certified copy of the
complaint lodged by one P.Suresh against A-1 for dishonour of
the cheque . Ex.D6 is the legal notice issued to the A-1 on
7/12/2015 by one Dakshinamurthy and stated that for
repayment of the hand loan amount the accused herein issued
cheque in question amounting to Rs.20 lakhs . Ex.D7 is the
statement of account stands in the name of A-2 Ratna in which,
on 5-6-2013 and 28-6-2013 transferred amount of Rs.10 lakhs
and Rs. 15 lakhs. Ex.D8 is the Gift Deed alleged to be executed by
one V.Sheela in favour of A-2 is not in dispute.
12. On the basis of oral and documentary evidence of DW-1
in order to show the complainant had lent huge amount of Rs.10
lakhs in this case, the complainant has not produced any
corroborative evidence.
13. As per the defence taken by the accused, accused
counsel cross-examined the PW-1. In the cross-examination he
tried to elicited as per Ex.D2 to Ex.D5 complainant lodged by
various complaints against A-1 for dishonour of cheque . Further
12 C.C.No.13900/2015
he admitted any money transaction made with anybody usually
he has issued cheque or D.D.. But in this case, he paid Rs.10
lakhs by way of cash. Further stated that by mentioning the date
on the Ex.P1 cheque dated 10-2-2015 alleged cheque was issued
to this complainant on 8-2-2015 and he denied that apart from
the Ex.P1 cheque , he took another three cheques from A1 and A2
for the purpose of surety and the said cheques are obtained in
blank form and he denied demand notice issued to A1 and A2 is
not served upon them. But he voluntarily stated that after
issuance of demand notice, the accused opened the RPAD cover
and sent back RPAD cover to this complainant etc.. As per Ex.P6
and Ex.P7 legal notice RPAD covers returned with the shara "
Addressee refused. In the further cross-examination of PW-1, he
tried to elicited as per the chief examination of DW-1, the same
has been denied by the complainant. Except total denial of case
of accused, the complainant failed to given corroborative evidence
to support his case. Further in his cross-examination, on 24-2-
2014 he withdrawn an amount of Rs.10 lakhs from his Janatha
Co-operative Bank and given to this accused on the same day. At
that time, accused issued a cheque in question for discharge of
liability . But as per the case of complainant the loan amount
advanced to the accused on 24-2-2014 after demand accused
13 C.C.No.13900/2015
issued cheque in question on 10-2-2015 nearly one year gap
between payment of loan amount and also issuance of Ex.P1
cheque and he denied rest of contention of accused stating that
alleged cheque in question along with nine other cheques have
been obtained from the accused in order to raise loan from the
bankers . After raising loan from the bankers, the complainant
has not returned security cheques issued by A1 and A2 and at the
end of cross-examination as per Ex.P3 legal notice issued to the
accused to their addresses at that time, there was no house
ceremony function was taken place. Hence, for these reasons
demand notice not served to the accused etc...
14. As per the cross-examination of PW-1 and also as per
the cross-examination of DW-1 as per the case of complainant,
demand notice issued to the accused was returned to the
complainant noticing that after opening the RPAD cover accused
simply returned the demand notice etc.. But the complainant
produced the RPAD cover before this court and at the time of
leading his side evidence this court was opened the said cover and
got marked the notice in the said covers. Hence, one cannot
imagine that accused after opening the RPAD covers noticing the
notice issued by the complainant and simply returned the same
etc.. is not supported to their case. As such, on the basis of cross-
14 C.C.No.13900/2015
examination of PW-1, in support of the case of complainant,
except oral say of the complainant , the complainant has not
produced any corroborative evidence to support his case to show
that the complainant had paid huge amount of Rs.10 lakhs to the
accused by way of cash. Etc.
15. On the basis of aforesaid oral and documentary evidence
of both complainant and accused, the accused had given rebuttal
evidence to the case of complainant and by cross-examination of
PW-1 and also A-1 leading his side defence evidence as DW-1 and
also produced documentary evidence are clearly support the case
of accused to show that the accused had given rebuttal evidence
to the case of complainant. As such, the complainant failed to
prove the alleged guilt of the accused beyond all reasonable
doubt. Hence, the benefit of doubt goes to the accused. Hence,
accused No.1 and 2 are entitled for acquittal. Accordingly, I pass
the following:
ORDER
Acting u/s 265 of Cr.P.C., the accused No.1 and 2 are acquitted from the alleged offence punishable u/s 138 of N.I.Act.
Accused-1 and 2 is set at liberty. Their bail bond and surety bond shall stand cancelled.
15 C.C.No.13900/2015(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 17th day of September, 2016) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
ANNEXURE Witnesses examined for the Complainant:
PW.1 : C.Purushotham Witness examined for the accused:
DW-1 : Sathyanarayana List of Documents marked for the Complainant:
Ex.P1 : Cheque Ex.P1a, 1b : Signature of the accused Ex.P2 : Endorsement Ex.P3 : Legal notice Ex.P4 & 5 : Postal receipts Ex.P6 & 7 : RPAD covers Ex.P6a & 7a Notice in it Ex.P8 : Absolute sale deed
List of Documents marked for the accused:
Ex.D1 : FIR
Ex.D2 Copy of complaint in
CC No.17932/15
Ex.D3 to 5 Copy of complaint
16 C.C.No.13900/2015
Ex.D6 Legal notice
Ex.D7 Statement of account
Ex.D8 Gift deed
Ex.D9 to 11 Balance sheets
Ex.D12 Copy of challan
Ex.D13 Copy of counterfoil
Ex.D14 to 17 Income tax returns. Ex.D.18 Loan short enquiry.
Ex.D19 Sale deed
XXII ACMM, Bangalore.