Bangalore District Court
A.Alagarasan S/O Late.Arumugam vs Mr.Baburaj T.V S/O Late.K.M.Koran on 9 May, 2018
IN THE COURT OF LVIII ADDL. CHIEF METROPOLITAN MAGISTRATE,
MAYO HALL UNIT, BENGALURU. (ACMM-58)
PRESENT : Sri. KAMALAKSHA.D, B.A., LLB.
LVIII ADDL. CHIEF METROPOLITAN MAGISTRATE.
Dated : This the 9th day of May, 2018.
C.C.No.56840/2015
COMPLAINANT : A.Alagarasan S/o Late.Arumugam,
Aged about 52 years,
R/at No.522, 4th E Cross,
K.S.Garden,
Benglauru-560 027.
(By Sri.B.T.Prasanna Kumar, Advocate)
V/s
ACCUSED : Mr.Baburaj T.V S/o late.K.M.Koran,
Aged about 48 years,
R/at at No.FA 506,
L.B.Shasthrinagar,
HAL.Quarters,
Bengaluru-560 017.
(By Sri.E.T.Satisha, Advocate.)
Date of Commencement 26.07.2014
1 of offence
2 Date of report of offence 20.09.2014
3 Presence of accused
3a. Before the Court 31.12.2015
3b. Released on bail 31.12.2015
4 Name of the A.Alagarasan
Complainant
5 Date of recording of 17.12.2014
evidence
6 Date of closure of 07.05.2018
evidence
7 Offences alleged U/s 138 of
Negotiable
Instrument Act.
8 Opinion of Judge Accused is not
found guilty
2 C.C.No.56840/2014
JUDGMENT
The complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2.The brief facts of the case of the complainant are as follows :
The complainant submits the accused being the friend of him requested to give hand loan of Rs.2,00,000/- in order to over come of his financial crisis. Accordingly, the complainant had given above said quantum of amount to the accused as hand loan by way of cash. The accused issued a cheque bearing No.156428 dated 26.07.2014 for repayment of said amount.
3. On presentation of said cheque on 28.07.2014 for encashment of the said loan through Corporation Bank, Shanthinagar Branch, the said bank issued an endorsement for "Funds Insufficient" on the same day. Thereafter, the complainant got issued legal notice for payment of hand loan. The legal notice dated 12.08.2014 was duly served to the official address of the accused. However, another notice issued to the residential address of the accused was returned as not claimed. Therefore, the contention of the complainant that the accused intentionally issued cheque to defraud the complainant.. Therefore, he prays to convict the accused person and pass an order to give compensation.
3 C.C.No.56840/20144. The cognizance for offence was taken of my learned predecessor. The criminal case came to be registered against the accused. The summons was issued to the accused. The accused in obedience of the summons appeared before the Court and enlarged on bail.
5. The substance of the accusation was framed, read over and explained to the accused in the language known to him by the learned predecessor of this Court. The accused pleaded not guilty and claimed to try the case. Hence, the case was posted for complainants evidence.
6. The prove the case, Complainant examined himself as PW- 1 and got marked as Ex.P-1 to Ex.P-8. The complainant has not examined any other witnesses. On the otherhand accused deposed himself as D.W.-1 and another witness as D.W.-2 and got marked as Ex.D-1 and D-2.
7. On closure of complainant side evidence, the accused statement has been recorded under Sec.313(1)(b) of Cr.P.C., by placing the incriminating evidence appeared against the accused that are denied by the accused.
8. I heard the arguments of Sri.B.T.Prasanna Kumar, the learned counsel for the complainant and Sri.E.P.Satisha, Advocate for accused filed written arguments.
4 C.C.No.56840/20149. On the basis of above, the point for consideration are that ;
1. "Whether the Complainant proves the cheque issued by the accused person dishonoured with an endorsement as "Funds Insufficient" and inspite of service of legal notice and demand the accused person failed to pay the cheque amount within stipulated period as such he has committed an offence punishable under section 138 of Negotiable Instruments Act?"
2. " What order ?
10. My answer to the above points are as follows :
POINT No.1 : In the Negative, POINT No.2 : As per final order for the following :
REASONS
11. The complainant himself examined as P.W-1. In the chief-examination, the P.W.-1 has repeated all the contents of complaint as ditto. The trustworthy of the P.W.-1 is questioned in the cross-examination. The cross-examination of the P.W.-1 shows that he studied upto 10th standard and being social worker and doing real estate business from last 12 years getting handsome income of lakhs together. The P.W.-1 further deposes that the accused is an employee of the public sector department. In the cross-examination the P.W.-1 deposes that he does not know the date on which accused met and asked hand loan of Rs.2,00,000/-. Therefore, it is clear that P.W.-1 is not an able person to say the definite or exact date of transaction. It is suggested to the P.W.-1 that no cheque has been issued by the accused. But the said suggestion question 5 C.C.No.56840/2014 denied as incorrect. The 4th para of the cross-examination of the P.W.-1 shows that the accused gaining amount of Rs.40,000/- as salary. It is important to mention the position of the cheque the Ex.P-7 cheque is a burned cheque. The contention of the complainant that due to the fire accident the disputed cheque was charred. Therefore, by necessary order, the complainant got permission to rely the said cheque on the basis of secondary evidence. The 5th paragraph of the cross- examination of the P.W.-1 indicates that the accused had not given police complaint for fire accident. It is suggested that the said accident is incidence by the complainant. The said suggestion question is denied as incorrect. The many series of questions are asked by way of suggestions about the fire accident is not an accident but intentional act of the complainant. P.W.-1 admits that the date of request and payment of amount are not mentioned in the pleading, notice and sworn statement. The bundle of facts are soul of the pleading. Every facts should be mentioned for completion of a pleading. Omission of some facts should not be appeared in the pleading. Suppose a complainant has not mentioned some facts in the pleading later he cannot take a different angle of facts. If he introduced a new fact other than facts are not mentioned in the pleading is called as improvement, omission, and contradiction. The above said things should not appear in Criminal proceedings. If such things are found it is to the complainant to explain the reason for improvement, omission and contradiction. The normal tendency of the criminal case that the benefit of doubts should extend to the accused. This 6 C.C.No.56840/2014 case being the commercial monetary transaction case, a definite track of facts should available for proper conclusion. The complainant who approached first person to the Court against the accused has to explain the date of transaction, request negotiation etc. Mere possession of a cheque is not a reason to presume in favour of the complainant.
12. Coming to the documentary evidence the Ex.P-1 is the written memo report of Corporation Bank. The learned counsel for the accused highlighted or drew the attention of this Court on the written portion of the endorsement. According to him after writing something in the Ex.P-1 the concerned Bank Manager mentioned the date of endorsement as 07.01.2016. The learned counsel for the complainant clarified that the date mentioned by the Manager is occurred due to oversight. Therefore, it seems that the concerned Bank Manager due to the reason best known to him mentioned year as 2016. But he mentioned a correct date. Therefore, it is not required to give much weight to the said exhibit. Ex.P-2 is the acknowledgment issued by the S.R.Nagar Police Station. According to that document a fire accident occurred in the house of the complainant reporting the date of accident on 14.01.2016 at 2.00 p.m. Along with the cheque, some auspicious documents were also burned. This Court already permitted the complainant to establish his case by way of secondary evidence. Once the permission is granted an elaborate discussion is meaningless to say the way of complainant to defend his case on secondary evidence. Ex.P-3 is postal receipt to prove the issuance of legal 7 C.C.No.56840/2014 notice. Ex.P-4 is the legal notice, Ex.P-5 and 6 are unserved envelopes. Ex.P-7 is the half burned cheque. The reason for it has been mentioned. Only some contents can be seen in the Ex.P-7 document. The four corners of cheque are destroyed due to the fire accident. Therefore, the said document is not a legible document to see. Ex.P-8 is the zerox copy of the endorsement. The same document is already marked as Ex.P-1. Therefore, a bare eye says the guilty of accused. The disputed cheque is found in the possession of complainant. The accused need to say the reason for possession of his cheque in the custody of complainant. The producer of the document of Ex.P- 7 already explained that the said cheque has been issued for recovery of hand loan of Rs.2,00,000/-. Therefore, a rebuttable evidence is required to defeat the case of the complainant. Let us see the attempt of the accused to rebute the case of complainant.
13. The Section 139 is strong weapon in hands of complainant in cheque bounce case. It provides to draw an initial and strong presumption in his favour to have the cheque only for recovery of debt or loan. Undisputedly, the accused is an employee. He being the employee of his public department owed loan of Rs.2,00,000/-. According the complainant. In the chief-examination he narrated that the situation was not posed him to ask hand loan from others. As he economically sound person. Therefore, he totally denies so called loan transaction. The cross of the D.W.-1 shows that he is an employee in HAL and resides in Government quarters. Now question arise before 8 C.C.No.56840/2014 this Court about maintainability of case because of lack of permission from higher authority of the accused to lift private loans.
The Hon'ble Supreme Court of India in a decided case between Subramany V/s Damodhara case has held that no case against the Government Employee is maintainable unless prior permission of higher authority.
14. Therefore, this one situation enough to draw adverse presumption against the complainant because loan transaction was taken place without the knowledge of higher authority of accused. That is to the complainant and accused to introduce each other of their status, employment etc., to involve in loan transaction. The accused being the Government Employee need to get permission from his higher authority. The present case is filed only for recovery of amount as compensation. Therefore, discussion should be limited by assigning the reason that whether the accused is liable person and complainant is eligible person to recover the said loan. The non-obtaining of permission is a loopholes of the case which definitely dilutes the case of complainant.
15. The Bank Manager of the Corporation Bank is examined as D.W.-2. In the chief-examination he deposes that normally the banks will not retain any single piece of document pertaining to cheque after return it. The D.W.-2 admits that the Ex.P-8 document is generated from Corporation Bank. The 9 C.C.No.56840/2014 D.W.-1 has produced salary certificate which is marked as D-1. The said document is produced to prove the status of his salary and Ex.D-2 is the certified copy of the Bank pass book. These two documents are produced to prove that the accused is an employee of public sector department and need not became borrower of loan of any body. The over all evaluation of evidence proves that the cheque of the accused is found in the custody of the complainant. The accused has not explained reason for availability of his cheque in the custody of the complainant. The accused barely denied the relationship with the complainant. Therefore, the evidence of the accuse is totally failed to say the reason of issuance of his cheque to the complainant. However, as discussed above the accused being the employee ought to take permission from the higher authority. Unless permission he shall not involve in loan transaction with private persons. It shows that the accused definitely a borrower of loan from complainant. However, Court cannot justify the act of one person on the basis of mercy. The above said mistake is a technical reason to disbelieve the case, the involvement of the accused in loan transaction with a private person is proved fact. Therefore, these types of hidden transaction should be curtailed by the higher authority of the accused person. Therefore, the office is directed to intimate the office of the accused to take necessary legal action against the accused for involvement in loan transaction with private person without the permission.
16. The another angle of the case of the complainant is fit to disbelieve because of non-narration of definite date and time of 10 C.C.No.56840/2014 transaction, negotiation etc., As discussed above the definite facts should be mentioned in the pleading, i.e., called bundle of facts. When the narration of facts of case is not upto believe the case of complainant as true. Benefit of doubt should be given to the accused. Therefore, these two reasons are grounds to disbelieve the case. Hence, Point No.1 is answered in Negative.
17. POINT No.2 : Inview of discussion held in Point No.1, I proceed to pass the following :
ORDER Acting under Section 255 (1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bonds executed by the accused shall continue till expiry of the appeal period. Thereafter, it shall be extinguished automatically.
(Dictated to the Stenographer, transcript computerized by him revised, corrected and then pronounced by me in the open Court on this the 8th day of May, 2018) (KAMALAKSHA.D), LVIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : A.Alagarasan 11 C.C.No.56840/2014
2. Documents marked on behalf of complainant:
Ex.P-1 Bank endorsment Ex.P-2 Acknowledgment, Ex.P-3 Postal receipt Ex.P-4 Legal notice Ex.P-5 & 6 Returned postal cover, Ex.P-7 Charred cheque. Ex.P-8 Returned memo
3. Witnesses examined on behalf of Accused :
DW.1 : Baburaj
DW.2 K.Ananth Kumar
4. Documents marked on behalf of Accused :
Ex.D-1 Salary Certificate,
Ex.D-2 Statement of account
LVIII ACMM,
BENGALURU.