Bangalore District Court
C.Sekhar Reddy vs K.Chennarayappa on 15 February, 2020
IN THE COURT OF THE XVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
PRESENT: MANJUNATHA.K.P, B.A.L, LL.B.
XVIII ADDL.C.M.M., BENGALURU
DATED : THIS THE 15th DAY OF FEBRUARY 2O20
C.C.NO: 24936/2017
COMPLAINANT:- C.Sekhar Reddy,
Aged about 44 years,
S/o Nagi Reddy,
R/at No.2, Ground Floor,
M.R.Prakash Building,
Avalahalli Village,
Singnayakanahalli Post,
Yelahanka Hobli,
Bengaluru-560 064.
(Repted by Shri.KSR., Advocate)
V/s.
ACCUSED:- 1. K.Chennarayappa,
Father name not known,
Working at F/No.850786693
Rank CT/GD ATC GC
CRPF, Yelahanka,
Bengaluru-560 064.
2. Smt.B.C.Shantakumari,
W/o K.Chennarayappa,
Both are R/at No.
F/No.850786693
Rank CT/GD Type 2 Qtrs,
No.862, GC
CRPF, Yelahanka,
Bengaluru-560 064.
(Repted by Sri.DSH, Advocate)
2 C.C.NO:24936/2017
JUDGMENT
The complainant has presented the complaint under Section 200 of Cr.P.C against the accused for the alleged offence punishable under Section 138 of N.I. Act.
2) The brief facts of the complainant's case is that:-
The accused approached the complainant seeking financial accommodation in a sum of Rs.1,50,000/- for his legal and family activities. Considering the request and need of the accused, the complainant has paid to the accused a sum of Rs.1,50,000/- by cash during 1st week of May 2017. The accused have received the said sum of Rs.1,50,000/- from the accused agreed to repay the same within three months. After lapse of 3 months , the accused failed to repay the said amount. When the complainant demanded the accused to repay, he issued a cheque bearing No:870358 dated 19/8/2017 for Rs.1,50,000/- drawn on State Bank of India, Chitradurga Road, Challakere . When the complainant presented the cheque for encashment, it was dishonored with an endorsement "Funds Insufficient" on 24/8/2017. Thereafter the complainant issued legal notice on 5/9/2017 calling upon the accused to make payment of the dishonoured cheque amount and the said notice was duly served on the accused. In spite of service of notice, the 3 C.C.NO:24936/2017 accused has not complied the same. Hence, complainant is constrained to file this private complaint for the said relief.
3) After receipt of complaint, this court has taken cognizance of the alleged offence and sworn statement of complainant was recorded and process was issued to the accused. He was appeared through his counsel and enlarged on bail and all papers were supplied to him. The substance of plea was recorded and read over and explained in Kannada language to the accused, to which he pleads not guilty and claims to be tried. Hence, posted the case for complainant evidence.
4) In order to prove the complainant case, complainant was examined as P.W.1 and he exhibited Ex.P.1 to Ex.P.5 documents and closed his side. Thereafter, the statement of accused under Section 313 of Cr.P.C is recorded, read over and explained in Kannada language to which accused has denied the entire incriminating evidence which appears against him. Per contra, accused examined as D.W.1 and he exhibited Ex.D.1 document and he also examined one witness by name Lakshman Kalappa as DW2 and thereafter posted the case for arguments.
5) Heard the arguments on both sides and perused the entire papers.4 C.C.NO:24936/2017
6) Now, the following points that arises for my consideration are:-
1) Whether the complainant has made out all the ingredients of Section 138 of N.I. Act to prove the guilt of the accused person?
2) What order?
7) 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
8) POINT NO.1:- As the brief facts of the complainant's case as already stated above, hence I need not repeat the same facts once again to avoid the repetition of the same facts.
9) To bring home guilt against the accused, the complainant/prosecution must prove the following ingredients of Section 138 of N.I. Act.
i) That there is a legally enforceable debt.
ii) That the cheque was drawn from account of Bank for discharge in whole or in part of any debt or other liability which presuppose a legally enforceable debt;
iii) Cheque so issued had been returned due to insufficiency of funds.5 C.C.NO:24936/2017
10) To prove the aforesaid ingredients of Section 138 of N.I. Act, the complainant filed his chief affidavit and was examined as P.W.1. In his chief examination affidavit he reiterated the entire averments of the complaint. In support of his case he has exhibited Ex.P.1 to Ex.P.5 documents. Ex.P.1 is the cheque, Ex.P.2 is the Bank endorsement, Ex.P.3 legal notice, Ex.P.4 three Postal receipts and Ex.P.5 postal tracking .
11) On careful perusal of the entire oral and documentary evidence, the admitted facts are that there is no dispute that Ex.P.1 cheque is belongs to the accused and it was joint account cheque and further there is no dispute that in Ex.P.1 cheque only accused No.1 has signed and accused No.2 i.e, wife of accused has not signed and further there is no dispute that the said cheque Ex.P.1 was dishonoured as per Ex.P.2 endorsement and notice has been issued as per Ex.P.3 and it was duly served as per Ex.P.5 postal tracking. Further, the prime dispute in the present case is that existence of debts between the complainant and accused and issuance of cheque by the accused to discharge the legally recoverable debts. To prove the said fact complainant examined as P.W.1 and he exhibited Ex.P1 to 5 documents. Per contra accused No.1 examined as D.W.1 and in his evidence he stated that he has not borrowed loan of Rs.1,50,000/- with the 6 C.C.NO:24936/2017 complainant and he is only borrowed Rs.80,000/-. The said amount has been credited to the account of the complainant and he also examined one witness by name Lakshman Kallappa Melavanki as DW2 and in his evidence he stated before the court that there is no debts between the complainant and himself and accused has not paid to any amount to him and there is no money transactions between them etc.,
12) During the course of arguments complainant counsel Sri. KSR vehemently argued that complainant has proved his case by way of oral and documentary evidence and evidence of D.W.1 & 2 has not support his case and he filed memo with rulings and prays to convict the accused.
1. 2015(3) KCCR 2827 Dr.Manjula Shetty Vs Dr.C.G.Anand Rao On the other hand Sri. DSH counsel for accused resisted the said arguments and argued that absolutely the case against the accused No.2 is not maintainable because she is not a signatory to Ex.P.1 cheque , accused No.1 has borrowed only Rs.80,000/- with the complainant and said amount has been repaid as per the admissions of P.W.1 and Ex.D.1 document and there is no dues between the complainant and accused and prays to acquittal of the accused.
7 C.C.NO:24936/2017
13) On careful perusal of the entire oral and documentary evidence and arguments addressed by the counsels , the admitted facts are that there is no dispute that Ex.P.1 cheque is belongs to the accused and in Ex.P.1 cheque accused No.1 only has signed and accused No.2 has not signed and said cheque is joint account cheque and further there is no dispute that the said cheque was dishonoured as per Ex.P.2 endorsement and notice has been issued as per Ex.P.3 and it was duly served as per Ex.P.5 postal tracking details. . Further, during the cross- examination of P.W.1 he admitted the following points they are DgÉÆæ K¦æ¯ï wAUÀ¼À°è ºÀt PÉýzÀÝgÀÄÁ, DzÀgÉ ¤RgÀªÁzÀ ¢£ÁAPÀ UÉÆwÛ®è. ºÀtªÀ£ÀÄß ªÉÄà 2017 gÀ°è PÉÆmÉÖ, ¢£ÁAPÀ £É£À¦®è. £À£ÀUÉ ¨ÁåAPï ªÀåªÀºÁgÀ ZÉ£ÁßV UÉÆvÀÄÛ. gÀÆ.20,000 QÌAvÀ ªÉÄïàlÄÖ ºÀtªÀ£ÀÄß ZÉPï ªÀÄÆ®PÀ PÉÆqÀ¨ÉÃPÀÄ J£ÀÄߪÀ «ZÁgÀ UÉÆwÛvÁÛ JAzÀgÉ UÉÆwÛ®è. gÀÆ.1.50,000 ºÀt £Á£ÀÄ £À£Àß ¨sÁªÀ¤AzÀ¯Éà vÉUÉzÀÄPÉÆAqÀÄ DgÉÆæUÉ PÉÆmÉÖ. PÉʬÄAzÀ ºÀt vÉUÉzÀÄPÉÆAqÀÄ §AzÀÄ PÉÆmÉÖ. DgÉÆæ JgÀqÀÄ wAUÀ¼À°è ªÁ¥À¸ï PÉÆqÀĪÁV ºÉýzÀÝgÀÄ. D £ÀAvÀgÀ CªÀgÀÄ PÉÆqÀ°®è. ¢.19.8.2017gÀAzÀÄ DgÉÆæ ZÉPÀÄÌ PÉÆnÖzÀÝgÀÄ. DgÉÆævÀjUÉ ¥À¸ïð£À¯ï ¯ÉÆÃ£ï §A¢vÀÄÛ DUÀ ZÉPÀÄÌ PÉÆnÖzÀÝgÀÄ. ZÉPÀÌ£ÀÄß ¨ÁåAPïUÉ ºÁPÀĪÀ ªÉÆzÀ®Ä DgÉÆæUÉ w½¹zÉÝ. £ÁªÀÄð¯ï ºÁUÉà w½¹zÉÝ. ZÉPÀ CzÉà ¢£À ¥ÀæeÉAmï ªÀiÁrzÉ. 1£Éà DgÉÆæ £ÀªÀÄä E¯ÁSÉAiÀÄ°è PÉ®¸À ªÀÆqÀÄvÁÛgÉ. ZÉPÀÌ£ÀÄß CªÀgÀÄ £ÀªÀÄä 8 C.C.NO:24936/2017 E¯ÁSÉAiÀÄ UÀÆæ¥ï£À°è PÉÆnÖzÀÝgÀÄ. 2£Éà DgÉÄÁæAiÀÄ §½ £Á£ÀÄ AiÀiÁªÀÅzÉà ªÀåªÀºÁgÀ ªÀiÁr®è JAzÀgÉ ¸Àj.
£Á£ÀÄ £À£Àß ¨sÁªÀ ¥ÀævÁ¥ï gÉrØ PÀqÀ¥ÀgÀªÀgÀ §½ K¦æ¯ï PÉÆ£É ªÁgÀzÀ°è ¸Á® ¥ÀqÉ¢zÉÝ. CªÀgÀÄ jAiÀįï J¸ÉÖÃmï ªÀåªÀºÁgÀ ªÀÄÁqÀÄvÁÛgÉ. CªÀgÀ£ÀÄß «ZÁgÀuÉ ªÀÄÁqÀ®Ä vÉÆAzÀgÀÉ E®è. 1 . £À£Àß SÁvÉUÉ 1£ÀÉà DgÉÄÁægÀªÀgÀ SÁvɬÄAzÀ MAzÀÄ ¸À® gÀÆ.40,000 ªÀÄvÀÄÛ ªÀÄvÉÆÛAzÀÄ ¸À® gÀÆ.40,000 §A¢vÀÄÛ, D ºÀt £À£Àß qÉÊæªÀgï PÀ®è¥ÀàgÀªÀjUÉ DgÉÆæ PÉÆqÀ¨ÉÃPÁVvÀÄÛ, D ºÀt £À£Àß ªÀÄÄÁ®PÀ PÀÉÆnÖzÀÝgÀÄ JAzÀÄ ºÉüÀÄvÁÛgÉ. PÀ®èà¥Àà£ÀªÀgÀÄ ¸ÀºÀ 1997 jAzÀ ¥ÀjZÀAiÀÄ. PÀ®è¥Àà ªÀÄvÀÄÛ 1£ÀÉà DgÉÄÁæ ¸ÉßûvÀgÀÄ. gÀPÀÛ ¸ÀA§AzÀs E®è.
3. PÀ®è¥Àà£ÀªÀgÀÄ 1£ÀÉà DgÉÄÁæ £À£ÀUÉ ºÀt PÀÉÆqÀ¨ÉÃPÀÄ JAzÀÄ ºÉýzÀÝgÀÄ. D jÃw ºÉýzÀ ¢£ÀÁAPÀ ªÀÄvÀÄÛ mÉʪÀiï UÉÆwÛ®è. PÀ®è¥À£ÀªÀgÀÄ ¤ªÀÈwÛAiÀiÁVzÁÝgÉ. CªÀgÀ «¼Á¸À UÉÆwÛ®è. PÀ®è¥ÀàgÀªÀgÀ£ÀÄß «ZÁgÀuÉ ªÀiÁqÀ®Ä vÉÆAzÀgÉ E®è. F PÀ®è¥Àà£ÀªÀgÀ «ZÁgÀªÀ£ÀÄß £À£Àß zÀÆgÀÄ, £ÉÆÃn¸ï ªÀÄvÀÄÛ £À£Àß ¥ÀæªÀiÁt¥ÀvÀæzÀ°è ºÉý®è JAzÀgÉ ¸Àj.
£ÀÁ£ÀÄ 1£ÀÉà DgÉÄÁæUÉ gÀÆ.1.50,000 PÉÆlÖ §UÉÎ gÀ«gÉrØ ªÀÄvÀÄÛ ªÀÄĤgÁeï ¸ÁQëzÁgÀgÀÄ EzÀÝgÀÄ. CªÀgÀÄ gÀÆ.1,45,000 gÁfà ªÀÄÁr¹zÀÝgÀÄ.
So, the said admissions indicates to the court that he has not aware about the exact date on which he paid the amount to the accused and he also admitted that he obtained Rs.1,50,000/- with his brother-in-law Pratap Reddy and he paid the said amount to the accused and he also admitted that 9 C.C.NO:24936/2017 accused No.2 has not signed to Ex.P.1 cheque and there is no money transactions between the complainant and accused No.2 and he also admitted that about the transfer of amount of Rs. 40,000/- one time and Rs. 40,000/- another time from the account of the accused No.1 to complainant but he explained before the court that the said amount is transferred by the accused for purpose to pay to the Kallapa and he also admitted that about he has not stated the Kallappa subject in his complaint and chief examination affidavit and he also admitted that at the time of payment of Rs.1,50,000/- to the accused No.1 one Ravi Reddy and Muniraj also present. So, the said admissions of P.W.1 crystal clear that accused No.1 alone has signed the said Ex.P.1 cheque and accused No.2 is not signatory and there is no money transactions between the complainant and accused No.2 . Accordingly, complaint filed by the complainant against the accused No.2 is not maintainable. Further, in the rulings of the complainant their lordships clearly held that " Only the signatory of the cheque is liable to the offence punishable under section 138 of NI Act and wife who is joint account holder is not liable" etc., So, in view of said ratios of the complainant rulings the present complaint is only maintainable against the accused No.1 but complaint against 10 C.C.NO:24936/2017 the accused No.2 is not maintainable and deserves to be dismissed.
Further, on perusal of the admissions of D.W.1 he also admitted the following points they are £Á£ÀÄ zÀÆgÀÄzÁgÀjUÉ J¸ï©L, ZÀ¼ÀîPÉgÉ ¨ÁæAZï ZÉPï PÉÆnÖzÉÝ JAzÀgÉ ¸Àj . D SÁvÉ dAn SÁvÉ JAzÀgÉ ¸Àj . D SÁvÉAiÀÄ ªÀåªÀºÁgÀ £Á£Éà £ÉÆÃqÀÄvÉÛÃ£É JAzÀgÉ ¸Àj ¤¦1 ZÉQÌ£À°è £À£Àß M§â£À ¸À»EzÉ JAzÀgÉ ¸Àj gÀÆ.80.000/- PÉÆlÖ £ÀAvÀgÀªÀÇ ¸ÀºÀ °TvÀªÁV zÀÆgÀÄzÁgÀgÀ£ÀÄß ZÉPï ªÁ¥À¸ï PÉÆqÀĪÀAvÉ PÉý®è £Á£ÀÄ zÀÆgÀÄzÁgÀjUÉ ºÁQzÀÝ gÀÆ.80.000/- ºÀt ¨ÉÃgÉAiÀĪÀjUÉ PÉÆqÀ¨ÉÃPÁVzÀÝ ºÀt CzÀÄ zÀÆgÀÄzÁgÀjUÉ PÉÆlÖ ºÀt C®è JAzÀgÉ ¸ÀjAiÀÄ®è.
The said admissions of D.W.1 indicates to the court that He issued SBI, Challakere Branch cheque in favour of complainant and it is joint account cheque and he also admitted that Ex.P.1 cheque is belongs to him and signature also pertaining to him etc., But the said admissions have not support the P.W.1 case because as per explanation and admission of P.W.1 accused has paid Rs.80,000/- to the account of the complainant and the said amount is pertaining to Kallappa as such accused has credited to the amount to the account of the complainant etc, But admittedly the said Kallappa has stated 11 C.C.NO:24936/2017 before the court that he know the complainant and accused persons since several years, and there is no money transactions between the complainant and himself and accused and there is no dues of Rs.80,000/- from the accused side etc., So, the evidence of DW2 is supports the accused No.1 case because the amount paid by the accused No.1 to the account of complainant is not at all belongs to the Kallappa, because Kallappa himself i.e, D.W.2 stated before the court that there is no dues between accused No.1 and Kallappa/DW2. Accordingly, I am of the opinion that the admissions of the P.W.1 those have referred above have destroys his case because the amount those borrowed by the accused No.1 Rs.80,000/- has been credited to the account of the PW1 and the said fact has not pleaded in his chief examination affidavit nor complaint and complainant has suppressed the materials facts and further as admitted by the P.W.1 in his cross-examination at the time of payment of Rs.1,50,000/- to the accused No.1 one Ravi Reddy and Muniraju also present. To prove the said fact, he has not examined the Ravi Reddy and Muniraju and he also not examined the complainant brother-in-law i.e., from whom he received the amount in order to pay to the accused No.1. So, in the absence their evidence merely complainant is examined as P.W.1 and he exhibited Ex.P1 to 5 documents are not sufficient 12 C.C.NO:24936/2017 to convict the accused. On the other hand, accused No.1 has proved before the court that about the repayment of amount to the complainant by way of marking of Ex.D.1 bank statement and also in the mouth of D.W.1 i.e, D.W.1 in his cross- examination categorically admitted that £À£Àß SÁvÉUÉ 1£ÀÉà DgÉÄÁægÀªÀgÀ SÁvɬÄAzÀ MAzÀÄ ¸À® gÀÆ.40,000 ªÀÄvÀÄÛ ªÀÄvÉÆÛAzÀÄ ¸À® gÀÆ.40,000 §A¢vÀÄÛ, but the complainant has explained that D ºÀt £À£Àß qÉÊæªÀgï PÀ®è¥ÀàgÀªÀjUÉ DgÉÆæ PÉÆqÀ¨ÉÃPÁVvÀÄÛ, D ºÀt £À£Àß ªÀÄÄÁ®PÀ PÀÉÆnÖzÀÝgÀÄ but the Kallappa DW2 deposed before the court that he has no dues from the accused No.1 etc., Accordingly, I am of the opinion that complainant has failed to prove the existence of debts between the complainant and accused and issuance of cheque by the accused No.1 for legally recoverable debts. So, in the absence of debts between the complainant and accused No.1 any amount of oral evidence placed by the P.W.1 and arguments addressed by his counsel have no merits. On the other hand, as per the ratios of complainant rulings complaint against the accused No.2 is not maintainable and further complainant has miserably failed to prove the issuance of cheque in favour complainant to discharge the legally recoverable debs. Further, as admitted by the P.W.1 Rs.80,000/- has been credited by the accused No.1 to the account of the complainant. The said fact has not pleaded in 13 C.C.NO:24936/2017 notice nor P.W.1 chief examination, The said act is nothing but a suppression of fact as such complainant is not entitled for the relies as sought in the complaint because issuance of cheque by the accused for legally recoverable debts and debts between the complainant and accused are not proved . So, in the absence of said fact accused No.1 is entitled for the benefit of doubt as he is not found guilt, because the complainant has miserably failed to prove the aforesaid ingredients of Section 138 of N.I. Act. Hence, accused No.1 & 2 are entitled for an acquittal and I answer this Point No.1 in the Negative.
14). POINT NO.2:- In view of my discussions as stated supra and my findings on Point No.1., I proceed to pass the following.
ORDER
Acting under Section 255 (1) of Cr.P.C,
accused No.1 & 2 are hereby acquitted of the
offence punishable under Section 138 of Negotiable Instruments Act 1881.
The bail bond executed by the accused and surety bond executed stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 15th day of February 2020 ).
(MANJUNATHA.K.P) XVIII A.C.M.M., BENGALURU.
14 C.C.NO:24936/2017ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : C.Sekhar Reddy
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque. Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Office copy of demand notice. Ex.P.4 : Postal receipts. Ex.P.5 : Postal Tracking details
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : K.Chennarayappa D.W.2 : Lakshman Kallappa Melavaki
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D1 : Bank statement
XVIII A.C.M.M., BENGALURU.
15 C.C.NO:24936/2017