Bangalore District Court
Sri. Vinay Kumar.K.H vs Sri. Vinay Kumar. K on 6 March, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 6th day of March 2015
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C No. 18198/2014
Complainant : Sri. Vinay Kumar.K.H.
S/o. K.P.Hanumantharayappa,
Aged about 24 years,
R/at. C/o. Ravikumar, 2nd Cross,
2nd Main, Manjunatha nagar,
Bangalore. 73.
(By Vasanth.B.H., Adv.)
Accused : Sri. Vinay kumar. K.
S/o. Krishnappa,
Aged about 27 years,
R/at.No.E-2, Sri. Thripurambika
Bhavan,8th Cross, 2nd Main,
Hoysala nagar, Sunkadakatte,
Bangalore- 91.
(By Sri.M.Sreerama reddy., Adv.)
Date of Institution : 22/05/2014
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 : 06.03.2015.
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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.
2. As per Ex.P9 complaint, the complainant contended that the
complainant and accused are well known to each other from
considerable time, the accused is running a Distribution business of
Pepsi Items in the name of Jai Maruthi Communication and having
godown at No. 516, Dwarakavasa road, Bharath Nagar, Byadrahalli,
Bangalore-91, since the accused is facing difficulty to run the said
business, the accused have approached the complainant and requested
him to run the said business as the complainant also intended to do the
same business. After negotiations both the complainant and accused
have entered into an agreement dt: 3/1/2013 wherein the accused has
agreed to hand over the said business which was running by the
accused, to the complainant for a total consideration of Rs. 30,22,000/- ,
the complainant has paid a sum of Rs. 30,22,000/- to the accused by
way of cash before the witnesses. After the said agreement as above,
the accused did not handover the entire business to the complainant and
some stipulated period the complainant approached the accused, either
handover the business or return the said amount. After persistent
demands and requests made by the complainant, finally towards the
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partial discharge of the accused liability, the accused has issued 2
cheques bearing No. 000016, dt: 6/11/2013, for Rs. 3,00,000/- and
another cheque bearing No. 033566, dt: 10/12/2013, for Rs.
14,18,652/-, both drawn on HDFC Bank, Vijayanagara Branch,
Bangalore -40, in favour of the complainant. As per the instructions,
the accused the complainant presented the said cheques for
encashment through his banker State Bank of India, Bharat Nagar,
Bangalore, but the said cheques have been dishonoured due to
'Insufficient Funds' as per memo dt: 5/2/2014. Thereafterwards, the
complainant got issued legal notice on 28/4/2014, calling upon the
accused to repay the cheque amount. The notice sent by RPAD was duly
served on the accused on 5/3/2014, inspite of it the accused did not
reply or comply the notice and thus, he has committed an offence
punishable u/s 138 of N.I. Act and prays to punish the accused in
accordance with law by imposing maximum punishment by awarding
compensation to the complainant in the interest of justice and equity.
3. After presenting this case, this court has taken cognizance of
the offence and after recording the sworn statement of the complainant's
side, this court registered the criminal case against the accused alleging
that, he has committed an offence punishable u/s 138 of N.I.Act.
Summons issued to the accused. The same is served upon the accused.
The accused appeared through his counsel, enlarged on bail and he
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denied the entire case of the complainant at the time of recording his
plea of accusation and case to be tried.
4. In support of the case of the complainant, he adduced his oral
evidence as PW.1 and got marked Ex.P1 to P9 and this PW.1 has been
fully cross-examined by the accused counsel and thus, the complainant
closed his side evidence.
5. Thereafter, the statement of accused U/s 313 Cr.P.C is
recorded, in which, he totally denied the entire case of the complainant
and in support of denial of the case of the accused, he adduced his oral
evidence as DW.1 on oath and this DW.1 has been fully cross-examined
by the complainant counsel and thus, the accused closed his side
evidence.
6. I have heard the arguments of complainant and accused
counsels on merits.
7. On the basis of the aforesaid facts and circumstances, the
following points arise for my consideration:
1) Whether the complainant proves that, beyond all
reasonable doubt for repayment of the loan advanced
by the complainant, the accused issued 2 cheques,
bearing No. 000016, dt: 6/11/2013, for Rs.
3,00,000/- and another cheque bearing No. 033566,
dt: 10/12/2013, for Rs. 14,18,652/-, both drawn on
HDFC Bank, Vijayanagara Branch, Bangalore -40, in
favour of the complainant the same are dishonoured
for the reason 'Insufficient Funds' and inspite of
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issuance of legal notice, the accused did not comply or
reply the notice and thus, he has committed an
offence punishable u/s 138 of N.I.Act?
2) What Order?
8. My answer to the above points are as follows:
1) In the Negative,
2) As per final Order,
For the following:
REASONS
10. POINT NO.1: In support of case of complainant, he adduced
his oral evidence as PW-1 filed by way of affidavit, in which, he reiterated
the complaint contention and got marked Ex. P1 Agreement of sale, dt:
3/1/2013, taken between the complainant and accused as per this
agreement of sale the accused has received Rs. 30,22,000/- from the
complainant and sold the distributorship of Pepsi Items to complainant
and identified his signature as per Ex.P-1.a and Ex.P.1.b. in presence of
witnesses. As per the contention of complainant, before the witnesses the
accused received the said amount, but in support of his contention he
has not examined any one of witnesses to prove the said fact. He further
got marked Ex.P2 and P3 are the cheques alleged to be issued by the
accused in favour of the complainant. These cheques are stands in the
name of VNR enterprises, not in the individual name of complainant and
identified the signature of the accused as Ex. P-2.a. and P3.a. This
issuance of cheques in favour of complainant has been disputed by
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accused stating that the alleged cheques in question are given in blank
to one Girish at the time of business transaction and through Girish this
complainant had misused the said cheques and filed this case and now
the said Girish is absconding, the complainant knows about him, where
this Girish is etc.,. He has further got marked Ex.P-4 and P5 are the
endorsements issued by the Banker stating that the Ex.P2 and P3
cheques are dishonoured due to 'Insufficient Funds. Ex. P6 is the copy
of legal notice. This notice does not contains the signature of the
complainant and his counsel. Ex.P7 is the RPAD receipt and Ex.P8 is
the postal acknowledgement to show that the legal notice sent to accused
is duly served on accused, but the accused contended that said notice is
not received by him and he is not at all residing in the address stated
in the postal acknowledgement. In this regard at the time of leading
defence evidence as DW-1, the address stated by the accused is similar
address as per the address mentioned in Ex.P8 the Postal
Acknowledgement. But the accused has taken untenable contention that
he has not received any notice without giving corroborative evidence and
the signature found on the postal acknowledgement and the signatures
found on Ex.P2 and P3 cheques appears to be similar. Ex.P9 is the
complaint under dispute.
11. The accused has denied the entire case of complainant, at the
time of recording plea of accusation and also at the time of recording 313
Cr.P.C statement. In support of their denial case, the accused lead his
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oral evidence as DW.1 on oath, in which, he admitted that for sale of
Pepsi distributorship both complainant and accused got entered into an
agreement as per Ex.P1. This complainant was introduced by one
Girish, as per Ex.P1 agreement of sale complainant has run the
distributorship for a period of 2 years. Thereafterwards, he returned the
said distributorship of Pepsi items to Pepsi company. Ex.P2 and P3
cheques are given to one Girish except signature, it was given in blank
for the purpose of business and there is an ill-will taken between the
complainant with accused, he do not know where the said Girish is
residing, but the complainant know where Girish is residing. He has not
received any legal notice for dishonour of cheques. As per chief-
examination of accused, the accused has not produced any documents to
show that the alleged cheques are issued to one Girish. In this regard on
careful perusal of Ex.P2 and P3 cheques, the cheques in question are
stands in the name of VNR Enterprises, but VNR enterprises belongs to
this complainant or not is not forthcoming. The complainant has not
stated anything in his complaint about VNR Enterprises belongs to this
complainant or not. Hence the case of complainant creates doubtful.
Moreso, as per the contents of complaint the alleged transaction between
the accused and complainant is purely attracts civil in nature, instead of
approaching the Civil court, the complainant has filed this case for
punishing the accused under Sec. 138 of N.I. Act. The accused counsel
cross-examined PW-1, in the cross-examination, the PW-1 denied that
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one Girish was working with this accused and he is a friend of this
complainant and the alleged cheques have been issued to Girish at the
time of business transaction and he denied that said Girish and this
accused are not in good terms and through Girish he filed this complaint
and he denied that signature found on the postal acknowledgement at
Ex.P8 is not belongs to accused. He admitted that after purchasing the
Pepsi distributorship, his business was running smoothly. He denied
that the accused has not borrowed any amount from this complainant.
As per Ex.P1 agreement accused handover the distribution ship to this
complainant, for repayment of amount to this complainant, may asked
the accused to issue one cheque. He denied rest of the contention of the
accused stating that the accused is no liability towards this complainant
etc., In this regard, at the time of cross-examination of PW-1, the
complainant counsel, got elicited that due to loss in distribution ship the
accused issued the cheques in question same are dishonoured etc.,
These things are not stated in his complaint or in his legal notice. The
DW-1 has admitted though the complainant is running said
distributorship, but from the Pepsi company accused receiving cheques
and demand drafts are comes to the name of accused and he deposited
in his Bank account. This accused has not taken any action against the
complainant for misusing of alleged the cheque in question. On the
basis of the facts and circumstances, the complainant has not proved the
alleged guilt of the accused beyond all reasonable doubt. As per the
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contents of Ex.P1 sale agreement, the accused sold the entire
distribution ship to this complainant on consideration amount of Rs.
30,22,000/-, but these alleged cheques in question as per the say of
complainant has issued for partial discharge of legal liability etc., But
the complainant has not proved the allegation made in this complaint,
the accused has given rebuttal evidence to the case of complainant. The
case of complainant creates doubtful, whether the accused really issued
Ex.P2 and P3, the cheques in question for discharge of legal liability. In
the above facts and circumstances, the complainant failed to prove his
case beyond all reasonable doubt, by producing cogent and convincing
evidence before this court as against the contention of accused. Hence,
benefit of doubt goes to accused and in the circumstances, the accused
is entitled for acquittal. Accordingly, I answer point No.1 in the
Negative.
13. POINT NO.2: For the above said reasons, I proceed to pass the
following:
ORDER
Acting u/s 255(1) of Cr.P.C., the accused is acquitted from the alleged offence punishable u/s 138 of N.I.Act.
Accused is set at liberty and his bail bond and surety bond shall stand cancelled.
10 C.C.18198/2014(Dictated to the Judgment writer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 6th day of March 2015) (NAGARAJEGOWDA.D) XXII Addl. Chief Metropolitan Magistrate, Bangalore City.
*** ANNEXURE Witnesses examined for the Complainant:
PW.1 : Sri. Vinay kumar K.H. Witness examined for the accused:
DW.1. K.P.Narasimhamurthy.
List of Documents marked for the Complainant: Ex.P1. Agreement of sale. Ex.P2 & P3. 2 Cheques.
Ex.P2.a & P3.a. Signatures of accused Ex.P4.
& P5. 2 Endorsements. Ex.P6 . Copy of legal notice Ex.P7. Postal Receipt. Ex.P8. Postal Acknowledgement. Ex.P9. Complaint.11 C.C.18198/2014
List of Documents marked for the accused:
-Nil-
XXII ACMM, Bangalore.12 C.C.18198/2014
6/3/2015 Com:
Ac:
For judgment:
Judgment pronounced in open court vide separate Judgment. Operative portion reads as :
ORDER Acting U/s 255(1) of Cr.P.C., the accused is acquitted from the alleged offence punishable u/s 138 of N.I.Act.
Accused is set at liberty and his bail bond and surety bond shall stand cancelled.
XXII ACMM, Bangalore.