Bangalore District Court
Sri.S.Chandramohan vs Sri.Suresh R @ Rajanna Suresh on 27 November, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 27th day of November, 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.2094 /2015
Complainant : Sri.S.Chandramohan,
Son of S.Ashwathnarayana,
Residing at Chamundeshwari
Nilaya, No.55/1, 1st floor, 5th main road,
7th Cross, D C Street, Chamrajpet,
Bangalore - 560 018.
(By Sri J M Ravikumar Adv.)
V/s.
Accused : Sri.Suresh R @ Rajanna Suresh,
No. 61/1, Hari Divya Nilayam,
2nd floor, 13th Cross, Opp. S.M.Enterprises,
4th main road, Lakshminarayanapura,
Bangalore - 560 021.
(By Sri G.A.Anthony Cruze, Adv)
Date of Institution 5-1-2015.
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
Final Order Accused is Convicted.
Date of Order : 27.11.2015.
2 C.C.No.2094/2015
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.
REASONS
The brief facts of the complainant case is as follows:-
2. Both the complainant and accused are friends. During
Feb.2014 the accused requested the complainant to lend
Rs.1,50,000/- for his urgent business needs and represented
that he will repay the same with interest @ 18% Per annum within
6 months time. The complainant had paid the said sum to this
accused on 25-2-2014. The accused was regularly paying the
interest every month. However, failed to repay the said loan
liability within six months as promised. On persistent demand for
discharge of the said liability the accused issued cheques bearing
No. 000046 and 000047 dated 27-10-2014 for Rs.50,000/- each
and No. 000049 dated 27-10-2014 for Rs.49,500/- of the Karur
Vysya Bank, Jayanagar, Bangalore in favour of the complainant,
in full settlement of his principal loan liability , subject to
honouring of the said cheques and assured that the said cheques
will be honoured on its presentation. As per the assurance of
accused, the complainant presented the cheque bearing No.
3 C.C.No.2094/2015
000046 dated 27-10-2014 for Rs.50,000/- . But the said cheque
is returned unpaid with an endorsement to that effect " Refer to
Drawer" as per the endorsement dated 28-10-2014 of State Bank
of Mysore, Chamrajpet branch. Thereafterwards, the complainant
got issued legal notice on 22-11-2014 to the accused, calling upon
the accused to pay the cheque amount . The notice sent by RPAD
was served to the accused on 24-11-2014 . Inspite of receipt of
legal notice, 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. 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, he adduced his oral evidence as PW-1 by way of
affidavit and got marked Ex.P1 to Ex.P7 and this PW-1 has been
fully cross examined by the accused counsel and thus
complainant closed his side evidence.
4. There afterwards, the accused examined u/s.313 of
Cr.P.C. in which, he totally denied the entire case of complainant .
4 C.C.No.2094/2015
He in support of his denial, lead his oral evidence as DW-1 on
Oath and got marked Ex.D 1 to Ex.D4 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.counsel for
complainant and accused on merit. In support of the case of
accused, the Ln.counsel for accused relied on the decisions
reported in :
2015 AIR SCW 64.
AIR 2011 (NOC) 422 Karnataka
2010(2) DCR 700
2013(3) DCR 120
III (2006) BC 482
Hence, prays for acquittal of the accused in accordance
with law.
6. In order to prove the case of complainant, 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 and identified the signature of the accused
as per Ex.P1(a). Further got marked Ex.P2 is an endorsement
issued by the bankers stating that Ex.P1 cheque was dishonoured
5 C.C.No.2094/2015
due to REFER TO DRAWER. Ex.P3 is the copy of legal notice .
This notice does not contain the signature of the complainant
except his counsel . Ex.P4 is the postal receipt. Ex.P5 is the postal
acknowledgement to show the legal notice sent to the accused by
RPAD was duly served . Inspite of service of legal notice, the
accused did not choose to reply or comply the notice etc.. Ex.P6 is
the BBMP Spl.Notification and Ex.P7 is the plan showing existing
building municipal with respect to Annayappa's property.
7. The accused has denied the entire case of complainant
and he has taken a defence that alleged cheque in question was
issued to the son of the complainant for the purpose of security
during the year, 2012-13 towards the cloth advance and in that
transaction, the complainant son Girish did not returned the
security cheque and same has been misused and through this
complainant filed this case etc.. In support of the defence taken
by the accused, he did not examined the said Girish and when he
was given alleged cheque in question to the said Girish and he do
not know anything. Further in order to show that he had bank
account at Karur Vysya Bank, got marked the account summary
as Ex.D1. Apart from it, he made an Insurance Policy Renewal
notice as per Ex.D2 and he was residing in his own house for
that, they have produced Katha extract issued by the BBMP as
per Ex.D3 and also another Katha extract as per Ex.D4 and he
6 C.C.No.2094/2015
has not made any money transaction with the complainant and
hence, he prays for acquittal from this case.
8. The complainant counsel cross-examined the DW-1 . In
the cross-examination, he tried to elicited that at Ex.D1 to Ex.D4
documentary evidence he had given name of his house as SREE
RANGA NILAYA as per Ex.D3 and Ex.D4 document three
brothers have partitioned the property and the share belongs to
him in K-61/A is entered in the name of this accused and
through DW-1 got marked Special Notification of BBMP Authority
as per Ex.P6 along with this notification got marked sketch as per
Ex.P7 . As per Ex.D7 he has not at all renewed in the katha
No.61/A . Except he is residing only in K-61 . He admitted that
the address stated in the summons in this case is belongs to him .
About last seven years he made a money transaction through the
cheques only and he used to pay the money through the cheques
only to others . Like wise in this case also he filled up the cheque
in question and given to the complainant and admitted that
signature found on the alleged cheque and the postal
acknowledgement signature is belongs to him but he has stated
that it appears to be belongs to him etc.. Except the total denial of
contention of complainant, the accused failed to given rebuttal
evidence to the case of complainant to show that he did not issue
7 C.C.No.2094/2015
alleged cheque in question to this complainant for discharge of
legal liability etc..
9. In the cross-examination of PW-1 accused counsel tried
to elicited that alleged cheques are given to son of complainant
and the same has been misused by the complainant . Except the
total denial of contention of accused, nothing brought out to prove
that the alleged cheques are not at all issued for discharge of legal
debt etc.. In support of his contention, he relied on the decisions
reported in :
2015 AIR SCW page 64 ( K.Subramani V K.Damodara
Naidu) wherein, it is held that,Negotiable Instruments Act
(26 of 1881) S.138- Dishonour of cheque - complaint-
Finding by trial court on consideration of entire oral and
documentary evidence- That complainant had no source of
income to lend sum of Rs.14 lakhs to accused- He failed to
prove that there is legally recoverable debt payable by
accused to him- Acquittal of accused, was proper- order by
High Court remanding case for retrial- Liable to be set aside.
AIR 2011 (NOC) 422 Karnataka ( B.Girish V S.Ramaiah)
Held that " Dishonour of cheque - Presumption as to
legally enforceable debt- Rebuttal of- Accused
specifically denied monetary transaction and that
cheque was not issued for discharge of any debt or
liability- No documentary evidence led by complainant
8 C.C.No.2094/2015
to show alleged transaction- Though complainant
alleged that he lent money to accused after borrowing
from other sources- There was no documentary
evidence to show alleged borrowings nor any agreement
for payment of interest between complainant and
accused- Except cheque no evidence produced to show
that accused had acknowledged receipt of money- More
over since transaction was above Rs.20,000/- there was
Account payee cheque issued by accused hence alleged
cheque was in violation of S.269(ss) of Income tax Act-
In absence of any oral and documentary evidence from
complainant- presumption u/s. 139, 118 stood
rebutted. "
2010(2) DCR 700 Amzad Pasha V H.N Lakshman, Held that...
Negotiable Instruments Act.1881-section 138 proviso(b)-
Notice-service not proved-effect-it service of notice under
section 138 of NI act is not proved therefore finding that
complainant has not complied with the requirement of
provision of section 138 of N.I act is just and proper.
2013(3) DCR 120 ( M/s.Sekhon and Sekhon Finance
and Vs Rani ) Held that, ... Admission of scope -
Held- Admission of signature on the cheque is not
synonymous with admission of execution and does
not take away the right of a. to content that a blank
signed cheque was misutilized by the payees.."
9 C.C.No.2094/2015
III (2006) BC 482 ( BPDL Investments (Pvt.) Ltd Vs. Maple
Leaf Trading International (Pvt.) Ltd. ) Held that... " (ii)
Negotiable Instruments Act 1881 Section 87 - Effect of Material
alteration - cheque would become void- for cheque or other
Negotiable Instrument to remain valid despite material
alterations, material alterations must be with consent of other
party and unless it was made towards furtherance of common
intention - Alternation in date on Negotiable Instruments
amounts to material alteration in terms of section 87 of
Negotiable Instruments Act - Insertion of date where there was
no date amounts to material alteration- Defendant did not
consent to alteration in dates nor it is part of common
intention of plaintiff and defendant to alter dates in cheque-
cheques would be void by virtue of section 87 of Negotiable
Instruments Act.
10. On the basis of the aforesaid decisions coupled with the
defence taken by the accused are not squarely applicable to the
case of accused to show that accused had given rebuttal evidence
to the case of complainant. Under these circumstances, the
accused has not approached this court with clean hands. The
complainant had proved the alleged guilt of the accused beyond
all reasonable doubt. The accused is liable for conviction.
Accordingly, I pass the following:
10 C.C.No.2094/2015
ORDER
Acting u/s 265 of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs.2,000/- (Rs.Two thousand only). In default of payment of fine amount, the accused shall undergo S.I. for a period of TWO months.
The complainant is awarded compensation amount of Rs.1,00,000/- (Rs.One lakh only) i.e. the double the cheques amount . The same shall be paid by the accused to the complainant within the period of 30 days from the date of this order.
In default of payment of this compensation amount, the accused shall undergo simple imprisonment for a period of One year.
Office is directed to furnish the copy of this Judgment at free of cost to the accused.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 27th day of November, 2015) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
11 C.C.No.2094/2015ANNEXURE Witnesses examined for the Complainant:
PW.1 : S.Chandramohan Witness examined for the accused:
DW-1 : R.Suresh List of Documents marked for the Complainant:
Ex.P1 : Cheque Ex.P1a : Signature of the accused Ex.P2 : Endorsement Ex.P3 : Legal notice Ex.P4 : Postal receipt Ex.P5 : Postal acknowledgement Ex.P6 BBMP Notification Ex.P7 Property sketch .
List of Documents marked for the accused:
Ex.D1 : Account summary
Ex.D2 Renewal notice.
Ex.D3 Certified copy of Khatha certificate
Ex.D4 Copy of Khatha certificate.
XXII ACMM, Bangalore.
12 C.C.No.2094/2015