Bangalore District Court
Sri.V.Gururaj vs Sri.Ramakrishna B.K on 10 August, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 10th day of August, 2015
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. 777/2015,
C.C.31675/2015 and
C.C. 4746/2015
COMMON JUDGMENT
Complainant : Sri.V.Gururaj, son of G.Venkata Rao,
Aged abouit 69 years,
Residing at No.117, "Venkatadri"
Sathyanarayana layout,
1st D Cross, 3rd stage, 4th block,
Basaveshwaranagar,
Bangalore - 560 079,
(Byk sri M.Y.Jayapal, Adv.)
V/s.
Accused : Sri.Ramakrishna B.K.
Son of Kuntaiah,
Aged about 55 years,
Prop: of Yogesh Enterprises,
No.4 and 5 Kamala Nagar Main Road,
Basaveshwara nagar,
Bangalore - 79.
(By sri K.Nagalingappa, Adv)
Date of Institution 30-12-2014, 26-11-2014, 28-1-2015
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
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Final Order Accused is Acquitted in all the 3 cases
Date of Order : 10 .08.2015.
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.
CMMON REASONS
Since in all the Three cases, the complainant and accused are
common and in the single transaction cheque in question have been
issued . Common evidence has been recorded in all the 3 cases.
Hence, I would like to take up these cases together for my common
discussion and decision.
The brief facts of the complainant case in all the 3 cases is as
follows:-
2. The accused is a business man dealing with Hardware and
software equipments in the name and style " Yogesh Enterprises"
in Kamala nagar Main road, Bangalore . Since the accused is the
good friend to the complainant, the accused approached the
complainant for hand loan and accordingly, in the month of
September, 2013, the complainant had paid the loan amount of
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Rs.8,50,000/- to the accused. After receipt of the said amount,
the accused disclosed that he had applied for loan in Ananda
Co-operative Bank at Basaveshwara nagar, Bangalore and as
soon as the loan grants from the bank, he will repay the said loan
amount to this complainant. As per the assurance of the
accused, the accused did not repay the said amount . After lapse
of 3 months, the accused undertaken to repay the said amount
with interest . Accordingly, in the month of December, 2013 the
accused told that loan was sanctioned from the bank and
accused is not ready to settle the hand loan to the complainant .
After settlement arrived between the parties, the accused settled
only Rs.2,50,000/- to the complainant by transferring the amount
to the complainant account on 15-12-2013 and requested the
complainant to provide some more time to repay the balance
amount of Rs.6,00,000/- Accordingly,, he issued three post dated
cheques bearing No. 836149 dated 15-10-2014, cheque No.
837150 dtd 15-11-2014 and cheque No. 836151 dated 15-12-
2015 drawn on Basaveshwara nagar branch, Bangalore and
assured the complainant that the said cheques will be honoured
on its presentation . The complainant approached the accused in
the month of Sept.2014 and asked to repay the balance loan
amount but the accused gave evasive answer and arrogantly
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replied to present the said cheques on the issue dates and again
on due dates of the cheques, the complainant intimated about
presenting of the cheques to the bank, but the accused was least
bothered and neglected to answer the complainant. When the
complainant presented the said cheques on the respective dates
for collection, the said cheques are dishonoured due to "Funds
insufficient" to honour the cheques. Thereafterwards, the
complainant got issued legal notice on 21-11-2014 , 25-10-2015
and 22-12-2014 to the accused, calling upon the accused to pay
the cheques amount . The said notices are received by the
accused. But he did not replied or complied the notice and thus
accused committed the offence punishable u/s. 138 of NI Act and
punish the accused in accordance with law and to award suitable
compensation as per Sec.357 of Cr.P.C., in the interest of justice
and equity.
3. In all the three cases, 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
order to prove the case of complainant in all the 3 cases, he
adduced his oral evidence as PW-1 by way of affidavit and got
marked Ex.P1 to Ex.P5 and this PW-1 has been fully cross
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examined by the accused counsel and thus complainant closed
his side evidence.
4. There afterwards, in all the 3 cases, the accused
examined u/s.313 of Cr.P.C. in which, he totally denied the entire
case of complainant . He in support of his denial, lead his oral
evidence as DW-1 on Oath and this DW-1 has been fully cross-
examined by the complainant counsel and thus closed his side
defence evidence.
5. I have heard the arguments of Ln.counsels for both
complainant and accused on merit. In support of the case
complainant, the Ln.counsel for complainant produced further
document to show the source of income to the complainant i.e.
Rental Agreement and thus complainant counsel submits that the
accused did not given any rebuttal evidence to the case of
complainant . Hence, complainant had proved the alleged guilt of
the accused beyond all reasonable doubt. Hence, he prays for
convicting the accused in accordance with law.
6. In support of the arguments addressed by the accused
counsel, the Ln.counsel for accused relied on the following
decisions reported in : 2015 Crl.L.J. 912 (SC ) and 2014 Crl.L.J.
6 C.C.No.777/2015, 31675/15 &4746/2015
2304 . Accordingly, he prays for acquittal of the accused in
accordance with law.
7. In order to prove the case of complainant, in all the three
cases, 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 in the 3 cases and identified the
signature of the accused as per Ex.P1(a). In the all three cases the
cheques are bounced due to "Funds insufficient" as per Ex.P2
endorsement issued by the bankers. Ex.P3 is the copy of legal
notice . This notice does not contain the signature of both
complainant and his counsel. Ex.P4 is the RPAD receipt. Ex.P5 is
the postal acknowledgement to show that the inspite of service of
legal notice, the accused did not replied or complied the notice.
8. The complainant without stating anything about source of
income to this complainant, only at the time of arguments on
merit, the accused counsel produced the rental agreement of the
year 2013 but without stating anything in the complaint
regarding source of income , it cannot be looked into to that effect.
In this regard, the accused counsel relied on the decision reported
in2015 Crl.L.J. 912 (SC ) ( K.Subramani Vs. K.Damodar Naidu) it
was held that " that the complainant had no source of income to
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lend sum of Rs.14,00,000/- to accused--- if he failed to prove
there is legally recoverable debt payable by the accused to him -
acquittal of the accused was proper. Likewise in another decisions
reported in 2014 Crl.L.J. 2304 ( John K.Abraham Vs. Simon
C.Abraham and another). The Hon'ble Supreme Court of India
held that, " when the amount has been given to the accused and
when alleged cheque in question has been issued to the
complainant is not stated the particular dates and month . Hence,
whatever the contention of the complainant will not sustainable
one etc.. "
9. On the basis of the aforesaid decision coupled with the
defence taken by the accused, the said decisions are squarely
applicable to the case on hand to disprove the case of
complainant.
10. The accused has denied the entire case in all the three
cases. He lead his side evidence as DW-1 on Oath. In which, he
admitted that he knows the complainant. But as per the contents
of complainant, he has not obtained any amount of Rs.8,50,000/-
as hand loan from this complainant except he issued cheque in
question for the purpose of security with the assurance that the
complainant is going to raise loan from the Ananda Co-Operative
8 C.C.No.777/2015, 31675/15 &4746/2015
Bank but he did not obtain any loan hence, this accused obtained
loan from the bank on his own but the alleged cheques haven
been obtained by the complainant for the purpose of security and
the same has been misused by him regarding bouncing of
cheque . Accused did not received any legal notice from the
complainant etc..
11. In all the three cases, the complainant cross-examined
the DW-1 . In the cross-examination , he tried to elicited that this
accused obtained loan amount from him and for repayment of the
said amount, he issued cheque in question , the same are
dishonoured and for dishonour of the cheque, legal notice issued
to this accused, the same is received by his wife and also
daughter by name Mahalaxmi and Mamatha. But these things are
denied by the accused and in order to support the case of
complainant, the complainant has not produced any documentary
evidence to show that, he had sufficient amount with him because
the accused has denied the entire case of complainant.
12. The accused counsel also cross-examined the PW-1 in
all the three cases. In the cross-examination , he tried to elicited
that the complainant had sufficient amount with him for that, he
has not produced any statement of account to show that he is
9 C.C.No.777/2015, 31675/15 &4746/2015
having sufficient amount with his bank and the alleged cheque in
question have been issued for the purpose of security issued in a
signed blank cheques and the same are misused by the
complainant etc.. Further PW-1 admitted that he has not shown
in his I.T.Returns about the payment of amount to this accused
etc..
13. On the basis of the cross-examination of PW-1 coupled
with the defence taken by the accused the case of complainant
create doubtful whether, he really paid the huge amount of
Rs.8,50,000/- to the accused by way of cash without producing
any corroborative evidence. Under these circumstances, the
accused has not given rebuttal evidence to the case of
complainant and the complainant failed to prove the alleged guilt
of the accused beyond all reasonable doubt. Hence, accused is
entitled for acquittal on the basis of the aforesaid facts and
circumstances. Accordingly, in all the three cases , I pass the
following:
ORDER
Acting u/s 265 of Cr.P.C., the accused in all the 3 cases is acquitted from the alleged offence punishable u/s 138 of N.I.Act.
10 C.C.No.777/2015, 31675/15 &4746/2015Accused is set at liberty. His bail bond and surety bond shall stand cancelled.
( Office is directed to keep a copy of judgment in connected cases) (Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 10th day of August, 2015) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
ANNEXURE Witnesses examined for the Complainant in all the 3 cases:
PW.1 : V.Gururaj Witness examined for the accused in all the 3 cases:
DW-1 : Ramakrishna List of Documents marked for the Complainant in all the 3 cases:
Ex.P1 : Cheque Ex.P1a : Signature of the accused Ex.P2 : Endorsement Ex.P3 : Legal notice Ex.P4 : Postal receipt Ex.P5 : Postal acknowledgement
List of Documents marked for the accused:
nil :
XXII ACMM, Bangalore.
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