Bangalore District Court
S/O.P.Hanumanthappa vs Assured To Repay The Amount Within Short ... on 21 October, 2015
1 CC.NO.12683/2009
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE: BANGALORE CITY.
Dated this the 19th day of October 2015
Present: Sri.V.S.Pandit,B.A.,LL B.,
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.12683/2009
2.Name of the H.Rajashekar,
Complainant: S/o.P.Hanumanthappa, 50 yrs, R/at
No.2&3 behind S.B.I., Kadugodi,
Banglaore-560 067.
3.Name of the accused: Sri.Channaveera Patil,
R/at.2nd floor, Gokul Dairy Building,
4th Main, Gandhinagar,
Bangalore-560 009.
4.The offence complained U/s.138 of Negotiable Instruments
of : Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(1) Cr.P.C., accused
is Acquitted.
7.Date of final Order 21st day of October 2015
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1. The accused has been prosecuted by the complainant for
the offence punishable U/s.138 of Negotiable Instrument Act - 1881
(hereinafter referred as NI Act for brevity)
2. Case of the complainant in brief are as under -
a. Accused is well known to the complainant. In that
context, for the purpose of business and personal commitment, in
the month of May 2008, accused approached for hand loan of
Rs.1,40,000/-. The said amount was paid on 26/06/2008.
2 CC.NO.12683/2009
Accused assured to repay the amount within short period. On
8.8.2008, accused has issued a cheque for sum of Rs.1,40,000/-
drawn on Syndicate Bank, Gandhinagar branch, Bangalore-09.
When the cheque was presented through Subramanyaswara Co-
operative Bank Ltd., Avenue Road branch, Bangalore, cheque was
returned for the reason 'FUNDS INSUFFICIENT'.
b. it is further case of the complainant that he got issued
legal notice on 9.9.2008. The said notice was duly served on the
accused on 10.9.2008. Despite service of notice, there was no any
compliance, as such complainant is constrained to file the
complaint.
3. My learned Predecessor in the Office after taking cognizance,
issued summons to the accused. In response to the summons, accused
appeared and was enlarged on bail. Plea for the offence was read over
and explained to the accused. Accused pleaded not guilty and pleads his
innocence.
4. To sustain the charge leveled against the accused, the
complainant examined himself as PW.1 and got marked the
documents at Ex.P.1 to Ex.P.4 on behalf of the complainant.
5. After conclusion of the evidence of the complainant, statement of
the accused U/s.313 Cr.P.C., was recorded. Accused denied the
evidence. Accused himself examined as DW.1 and got marked Ex.D.1
and 2.
6. Heard both sides.
7. The points that arise for my consideration are as under:-
1. Whether the complainant has proved that cheque
was issued by the accused for discharge of legally
enforceable debt, the same was returned unpaid for
3 CC.NO.12683/2009
the reason 'FUNDS INSUFFICIENT' and notice was not
complied. Hence accused committed an offence under
Sec.138 of N.I. Act ?
2. What Order ?
8. My findings on the above points are as follows:
Point No.1 : In the Negative,
Point No.2 : As per final Order, for the following;
REASONS
9. Point No.1 - It is the case of the complainant that to refund
hand loan of Rs.1,40,000/-, cheque was issued by the accused. When
the cheque was presented for encashment, it was returned unpaid for the
reason "FUNDS INSUFFICIENT". Since notice was not complied,
therefore complaint is filed.
10. It is the case of the accused that in the year 1991, he was
running petty shop. He came to know about the case only when he
received summons from the Court. He is acquainted with the
complainant since 1995, at that time complainant is undertaking small
contract work. The accused get the work of construction of two
staircase in which accused is residing. There was no any monetary
transaction between the complainant and the accused. Whenever,
complainant used to purchase soil, accused used to issue cheques for
security purpose. It is specifically denied with regard to the borrowing of
loan and issuance of the cheque as alleged.
11. The signature and drawing of the cheque from the account of
the accused is not denied. Therefore, initial presumption has to be
raised that cheque is issued for discharge of liability. However, the said
presumption is rebuttable in nature and it is for the accused to rebut the
presumption by placing direct or circumstantial evidence. What are the
material placed on record by the accused to rebut the presumption is to
be seen.
4 CC.NO.12683/2009
12. It is specifically contended in the cross-examination of the
complainant that material alteration has been made by the complainant
in place of Rs.10,000/- by inserting "1" and "4", thereby making
Rs.1,40,000/-. Though the said suggestion has been denied by the
complainant, but later on, at the instance of the accused, cheque was
sent to the Forensic Science Laboratory for ascertaining the truth.
Accordingly, on 24.6.2015, one Shankarappa Mural, Director of Truth
Labs, Forensic Science Laboratory, Bangalore, has given opinion. Since
the opinion of the Expert goes to the route of the case of the accused,
therefore it is extracted as below -
1. The evidence of alteration is found to be in the amount
at the figures' place from '1' to '4' at the thousand's
place with similar ink,
2. The evidence of addition is found to be in the amount at
the figures' place at the lakh's with similar ink,
3. The evidence of alteration with the insertion of suitable
stroke to the previous available executions in the
amount in words with similar ink.
Therefore on perusal of the above, the expert has categorically
opined that there is a material alteration found in the amount, at the
figures from "1" to "4" and further also opined that evidence the addition
is found to be in the amount at the figures placed at the lakhs with
similar ink. On careful scrutiny of Ex.P.1, it appears that there is a
material alteration with regard to the "1" and "4". The complainant did
not challenge the opinion of the Expert. Therefore, there is no hurdle for
the Court to rely upon the Commission Report. Therefore, when there is
a material alteration affected without being consent of the accused,
Provision U/s.139 of NI Act, cannot be made applicable to the facts of the
present case. Apart from that, there is nothing on record placed by the
complainant to show that a sum of Rs.1,40,000/- was lent to the
accused, in turn, accused has issued cheque for discharge of liability.
Under such circumstances, I am of the opinion that material placed on
record by the accused is sufficient to rebut the presumption. As such, I
answer Point No.1 in the negative.
5 CC.NO.12683/2009
13. Point No.2 : In the result, I proceed to pass the following:
ORDER
Acting Under Sec.255(1) Cr.P.C., accused is Acquitted for the offence punishable U/s.138 of the N.I.Act.
His bail bond and surety bond shall stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by her, is verified and then pronounced by me in Open Court on this the 21st day of October 2015.) (V.S.PANDIT), XV Addl. CMM., Bangalore.
ANNEXURE Witnesses examined for the Complainant:-
PW.1 H.Rajashekar, Documents marked for the Complainant:-
Ex.P.1 Cheque,
Ex.P.1a Signature,
Ex.P.2 Bank Endorsement,
Ex.P.3 Office copy of the legal notice,
Ex.P.4 Postal A.D.Card,
Witnesses examined For Defence:
DW.1 Chennaveera Patil, Documents marked for Defence:-
Ex.D.1 Bank Statement
Ex.D.2 Certified copy of the Order in OS No.2201/95.
XV Addl.CMM., Bangalore.
6 CC.NO.12683/2009
Judgment pronounced in Open Court vide separate Order:
ORDER Acting Under Sec.255(2) Cr.P.C., the accused is convicted for the offence punishable u/s.138 of the N.I.Act and sentenced to pay fine amount of Rs.27,220/- (Rupees Twenty Seven thousand two hundred twenty only) as stated in the Joint Memo. If the said amount is deposited, same shall be paid to the complainant as compensation.
In default, he shall undergo SI for a period of six months.7 CC.NO.12683/2009
XV Addl.CMM., Bangalore