Bangalore District Court
Smt.Nagarathna.V Dead vs Sri. A.S.Giridhar on 30 January, 2020
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SRI. NAGARAJEGOWDA. D. B.Com, L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO.12988/2017
Dated: This the 30th day of January 2020
COMPLAINANT/S: Smt.Nagarathna.V Dead
W/o.T.R.Ramaiah
Aged about 69 years
R/at.No.34, 3rd Main Road,
1st Stage, 2nd Phase,
Manjunathanagara,
West of Chord Road,
Bengaluru-10.
LR's of the complainant
1.T.R.Ramaiah
S/o.Rangaswamaiah
H/o of Late.Nagarathna.V,
Aged about 69 years.
2. Aravind Gajendra
S/o.T.R.Ramaiah
Late.Nagarathna.V
Aged about 48 years.
3. Yuvaraju
S/o.T.R.Ramaiah and
Late.Nagarathna.V
Aged about 48 years.
JUDGMENT 2 C.C.12988/2017
4. Vasudeva Murthy
S/o.T.R.Ramaiah and
Late.Nagarathna.V
Aged about 61 years.
All are R/at.No.34, 3rd Main Road,
1st Stage, 2nd Phase,
Manjunathanagara, West of Chord
Road, Bengaluru-10.
ACCUSED: Sri. A.S.Giridhar,
S/o.A.Sundaresh
Aged about 50 years
R/at.No.2206, Dharani,
13th Main Road, Chandranagara,
Kumaraswamy Layout,
2nd Stage, Bengaluru-27.
And also working at:
LIC of India,
working as LIC agent
Residency Road Branch(614),
No.4, Canara Mutual Buildings
Ground Floor, Residency Road,
Bengaluru-25.
Offence Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Acquitted
**
JUDGMENT 3 C.C.12988/2017
:: JUDGEMENT ::
The complainant filed the private complaint under Section.200 of Cr.P.C alleging that, the accused person has committed an offence punishable under Section.138 of Negotiable Instruments Act.
2. During the pendency of this case the complainant died and her LR's brought on record. Accordingly the complainant counsel furnished Amended Private Complaint and brief facts of the complainant case as per Ex.P9 complaint reads as follows:
The complainant and accused are well known to each other for the past 20 years. On the cordial acquaintance with the complainant the accused has approached the complainant during the first week of February 2016, for financial assistance to an extent of Rs.18,00,000/- the same was required in order to meet for the accused domestic problems and personal commitments and further the accused had assured and agreed to repay the said amount of Rs.18,00,000/- within the period of 6 months to JUDGMENT 4 C.C.12988/2017 the complainant from the date of borrowed the said hand loan. The complainant has arranged and paid a sum of Rs.18,00,000/- to the accused by way of cash on 20.03.2016 to the accused. The accused failed to repay the principle amount nor agreed interest at the rate of 12% per annum. After several requests and demands from the complainant on 20.03.2017 towards clearance of legal valid enforceable debt the accused had issued a post dated cheque in favour of the complainant in cheque bearing No.024434 dated 27.03.2017, for a sum of Rs.18,00,000/-
drawn on M/s.Corporation Bank, Shanthinagar Branch, Bengaluru and assured the complainant the said cheque will be honoured, the complainant presented the said cheque on 27.03.2017 through his banker M/S.Canara Bank, Rajajinagar 1st Block Branch, Bengaluru-10, but the said cheque dishonoured due to 'Funds Insufficient' on 06.04.2017 . Accordingly the complainant had contacted the accused and informed about the dishonour of the cheque, but the accused did not listen to the complainant and failed to pay the said cheque amount of JUDGMENT 5 C.C.12988/2017 Rs.18,00,000/- to the complainant. Hence the complainant got issued legal notice to the accused on 11.04.2017 sent by RPAD, said notice duly served to the accused on 12.04.2017 and 13.04.2017. But the accused did not replied or complied the notice and thus the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and punish the accused in accordance with law by awarding compensation to the complainant under Section.357 of Cr.P.C. in the interest of justice and equity.
3. After recording sworn statement with documentary evidence, this court has registered the case against the accused for the offence punishable under Section.138 of Negotiable Instruments Act. Summons issued to the accused and the accused appeared through his counsel and enlarged on bail. There afterwards, plea of accusation read over and explained to the accused in the language known by him and he pleaded not guilty and claims to be tried.
JUDGMENT 6 C.C.12988/2017
4. In support of the case of the complainant the of SPA holder of complainant filed an affidavit by way of chief- examination as PW.1 and got marked Ex.P1 to P9 and after got marked Ex.P10 to 12 and accused counsel cross- examined the P.W.1 at that time got marked Ex.D1 to D3 and PW.1 has been fully cross-examined by the accused counsel and thus complainant closed his side evidence.
5. There afterwards, accused person examined under Section.313 of Cr.P.C. statement, in which he totally denied the entire case of the complainant. In support of his denial, the accused lead his side evidence as DW.1 filed by way of affidavit and got marked ExD4 to D20 and this DW.1 fully cross-examined by the complainant counsel and thus accused closed his side evidence.
6. I have heard the arguments of the complainant counsel on merit and in support of the case of the accused learned counsel for accused person submitted written arguments by narrating facts and circumstances of the JUDGMENT 7 C.C.12988/2017 case and in support of his contention the learned counsel for accused relied the judgment in CC.No.16144/2014 dated in which, in 2nd August 2019 the complainant by name T.R.Ramaiah filed cheque bounce case against one Prithvi Raj and after contests this Court passed acquittal of accused. Accordingly the learned counsel for accused prays for acquittal of the accused in accordance with law.
7. On the basis of aforesaid facts and circumstances, the following points arises for my considerations:
POINTS
1. Whether the complainant proves beyond all reasonable doubts that on 20.03.2016 he paid loan amount of Rs.18,00,000/- to the accused by way of cash and the accused agreed to repay the said amount with interest at the of 12% per annum for a period of 6 months. After lapse of 6 months complainant demanded the accused of repayment of said amount with interest for that, the accused issued a cheque bearing No.024434 dated 27.03.2017 for Rs.18,00,000/- drawn on M/s. Corporation Bank, Shathinagara Branch, Bengaluru and JUDGMENT 8 C.C.12988/2017 the complainant presented the said cheque for collection through his bankers for M/s.Canara Bank, Rajajinagar 1st Block Branch, Bengaluru.
But the said cheque returned unpaid with endorsement 'Funds Insufficient' on 06.04.2017. Complainant got issued legal notice through his advocate on 11.04.2017 by RPAD the notice sent to the accused duly served on 12.04.2017 and 13.04.2017, but the accused did not reply or comply the notice and thus the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act?
2. What order?
8. My answers to the above points are as follows:
Point No.1: In the Negative
Point No.2: As per the final order,
for the following.
REASONS
9. POINT NO.1: In support of the case of the
complainant, the SPA holder of the complainant examined as PW.1, in which he reiterated the complainant contention JUDGMENT 9 C.C.12988/2017 and initially got marked Ex.P1 to P9. Ex.P1 is the SPA alleged to be executed by the complainant in favour of T.R.Ramaiah i.e. PW.1, Ex.P2 is the cheque for Rs.18 lakhs alleged to be issued by the accused and identified the signature of the accused as per Ex.P2(a). Ex.P3 is the endorsement issued by the banker stating that Ex.P2 cheque is dishonoured due to 'Funds Insufficient'. Ex.P4 is the copy of legal notice sent through RPAD as per Ex.P5 & P6, Postal receipts. The said RPAD notice duly served to the accused as per Ex.P7 & 8 postal acknowledgements. In spite of service of demand notice the accused did not replied or complied the notice. After appearance of accused the complainant got marked Ex.P10 is the Canara Bank Statement of Account stands in the name of complainant Smt.Nagarathna.V in which, it is produced for the period of 01.04.2015 to 07.04.2017, and on 11.03.2016 and 18.03.2016 by way of self withdrawal of Rs.1,500,000.00 and Rs.1,500,000.00/-, and Ex.P11 is the reply notice issued by the accused in which, he denied the entire case of the complainant parawise notice are all false. JUDGMENT 10 C.C.12988/2017 The complainant husband T.R.Ramaiah in CC.No.17469/2009 filed the cheque bouncing case against Mr.S.Harry Kumar for more than Rs.9,00,000/- and the complainant's husband filed cheque bounce case in CC.No.79885/2009 for Rs.9,00,000/- , in the said two cases one Smt.Rekha U Gudi on behalf of complainant husband has deposed as witness, she herself filed cheque bouncing case in the said and the complainant husband deposed as witness on behalf of Smt.Rekha U Gudi, much more in CC.No.79885/2009 the complainant husband during the course of cross-examination admits that Rekha is his wife, these facts have been admitted by the said Rekha U Gudi during her cross-examination. This complainant instructs that there is no cordial acquaintance with the complainant, this accused never seen the complainant, but he has always seen Smt.Rekha U Gudi with the complainant husband Sri.T.R.Ramaiah. When the accused did not see the complainant personally at any time question of borrowing loan from him does not arise all, the accused has reliably learnt that the complainant children JUDGMENT 11 C.C.12988/2017 have hang advocates board in front of their house at Kempapura, Magadi Main Road, Bengaluru as B.R.Aravind Gajendra B.Com, LLB and B.R.Vasudeva Murthy, B.A.LLB. However during first week of February 2016, the accused approached the complainant for financial assistance to an extent of Rs.18,00,000/- same is required the accused domestic purpose and personal commitments further the accused assured and agreed to repay Rs.18 lakhs within a period of 6 months to the complainant from the date of borrowed loan is absolutely and specifically false and put the complainant into strict proof of the same. The complainant is very much aware that an amount of Rs.20 thousand and more shall be given through cheque only, as the complainant is highly educated and qualified, retired lady teacher. Further stated that the complainant is an income tax assessee and she has shown in her income tax whatever the loans paid to the accused kindly furnish her PAN number, income tax details to send further reply and this complainant paid cash of Rs.18 lakhs on 20.03.2016 where she paid, who are all present is not forthcoming. On JUDGMENT 12 C.C.12988/2017 ordinary LIC agent borrowing capacity was very much aware by the complainant, the complainant did not paid Rs.18 lakhs to this accused on said date and accused failed to repay the said amount with interest at the rate of 12% per annum are all false and this accused has not committed an act punishable under the provisions of Negotiable Instruments Act. The complainant husband and her 3 children are all doing money lending business, kindly furnish the money lending business license before Court of law. The complainant and her husband and her children very much aware one Mr.Yogananda through him advocate filed the cases on behalf of the complainant and her husband against Mr.M.P.Shashidhar, Mr.Deepak Boj, Mr.A.Balasundaram, Mr.V.Nagendra who took VRS from LIC and Smt.Sumithra working in IOB Bank and advised the complainant withdraw his legal notice unconditionally filing which the accused will answer the complainant notice in court of law suitably. Against the contents of Ex.P11 reply notice, the complainant has not issued any rejoinder by admitting or denying the facts stated in the JUDGMENT 13 C.C.12988/2017 said reply notice, except in para No.8 of the complaint, the complainant contended that after receipt of legal notice from the complainant, the accused neither replied the legal notice nor paid cheque amount of Rs.18 lakhs to the complainant as on today. Ex.P12 is the Chord Road Hospital Pvt. Ltd advice on discharge of this complainant dated 24.04.2017. On the basis of aforesaid facts and circumstances of the case of complainant creates doubtful whether he paid huge amount of Rs.18 lakhs to the accused, in order to repay the said amount and also for discharge of legal liability the accused not at all issued Ex.P1 cheque and issuance of demand notice to the accused though duly served, but the complainant contended that the accused did not replied or complied the notice, but as per Ex.P11 reply notice the accused had issued a reply to the complainant. The accused contests this case by denying entire case of the complainant, in support of his denial the accused counsel cross-examining the PW.1 in which, he has stated that the complainant Nagarathna filed sworn statement before this Court. In JUDGMENT 14 C.C.12988/2017 this case she herself issued the notice and presented this complaint before this Court, except she given SPA in his favour to lead her side evidence, but he has stated that the complainant is hospitalized for the last 6 months and also denied that the complainant usually go to LIC Office everyday and on 07.12.2017 the complainant is out of her house has been admitted by the PW.1 and before the notary Dayananda she put her appearance and the complainant is not in a position to move, but through car she can be carried before this Court and she is ill health and she is not able to appear before this Court etc and the complainant is retired from Education Department and she getting pension of Rs.20 thousand and this PW.1 is the husband of complainant and at the time of giving loan amount to the accused he was present and as per Ex.P8 reply notice is comes to this complainant and in order to show that the complainant had an account in SBI in which she produced Ex.P10 Statement of account and on 11.03.2016 and 18.03.2016 she withdrawn the amount of Rs.15 lakhs and Rs.12 lakhs from her bank account as per JUDGMENT 15 C.C.12988/2017 Ex.P10(a) and in his further cross-examination he has stated that the complainant is his wife is suffering from Iron Deficiency, Anemia and Hipertension etc and he has admitted that there are cheque bounce cases filed by the complainant against some other persons of Rs.21 lakh, Rs.20 lakh and said cheque bounce cases compromised between the parties, but he had denied that after retirement of him and also his wife they making the money lending business without obtaining money lending licence from the concerned authority. In order to show that the accused is a house No.27 marked as Ex.D1 colour photos of the house of accused to show that the accused had got very good house and there is no need of he obtained Rs.18 lakhs from the complainant. Except he denied the entire case of the accused contention. The complainant failed to given cogent and convincing evidence before this Court itself goes to show that the complainant is not approached this court in a proper manner, in order to appreciate the case of complainant in the cross-examination of PW.1 at page No.16 which is in Kannada reads as follows: JUDGMENT 16 C.C.12988/2017
"¢£ÁAPÀB11.03.2016, ¢£ÁAPÀB18.03.2016 gÀAzÀÄ £ÁUÀgvÀ ÀߪÀÄä EªÀgÀ CPËAmï£À°èzÀÝ ºÀtPÉÌ ¸Àj ºÉÆAzÀĪÀAvÉ F ¥ÀæPÀgÀtzÀ ZÉPï£ÀÄß ¸À馅 ªÀiÁrzÉÝÃ£É CAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæAiÀÄÄ £À£Àß ºÀwgÛ À AiÀiÁªÀÅzÉà ºÀt vÉUÉzÀÄPÉÆAr®è DzÀÝjAzÀ CzÀ£ÀÄß PÉÆqÀĪÀ dªÀ¨ÁÝj E®è CAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ DgÉÆæ¬ÄAzÀ gÀÆ.6,50,000- UÀ¼À£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ CªÀgÀ ZÉPï£ÀÄß CªÀgÀ ªÀÄÄAzÉAiÉÄà ºÀjzÀÄ ºÁQzÉÝÃ£É CAzÀgÉ ¸ÀjAiÀÄ®è."
This suggestion itself goes to show that the Ex.P1 cheque is not at all issued for discharge of any legal liability and in the further cross-examination of PW.1 denied the entire case of the accused.
10. In support of defence taken by the accused, the accused filed affidavit by way of chief examination as DW.1 in which, he has stated that he is working as LIC agent. He never worked Mr.T.R.Ramaiah as LIC agent and he was appointed by Mr.A.Balasundaram Development officer and he was working with Mr.A.Balasundaram. He further submits that the complainant husband Mr.T.R.Ramaiah has money transactions with Mr.Nagesh LIC agent, Mr.C.S.Balasubramanyam Development Officer, Mr.V.Nagendra LIC staff, Mr.A.Balasundaram LIC JUDGMENT 17 C.C.12988/2017 Development officer, Mr.H.K.Revanna LIC agent, Mr.M.P.Shashidhara LIC agent, Mr.S.Appaih LIC agent, Mr.Kempanna working in Zillah Panchayath, Mr.Ramesh working in Wheel and Axel, Mr.Dhananjaya working in Zillh Panchayath, Smt.Rekha U Gudi LIC agent, Mr.B.D.Yogananda private business man, Mr.M.Narayan S/o.T.Muniyellappa etc. The said persons are very much known to him and they were used to come to LIC office even to this day. Further submits that he keep on paying principal and interest amount to the Mr.T.R.Ramaiah from August 2012 onwards and he paid the said principal and meter rate interest amount till July 2016 to his bank account upon payment of Rs.29,87,500/- same has been paid by way of cash to Mr.T.R.Ramaiah and through cheques to Mr.T.R.Ramaiah's daughter-in-law Smt.S.Anuradha and Mr.Srinivasa Babu and Mr.B.D.Yogananda as follows: from 18.02.2012 to 18.07.2016 the total amounting of Rs.14,87,500/-, the account extract is produced for kind perusal of this Court and said Mr.Ramaiah has received from him the following 4 JUDGMENT 18 C.C.12988/2017 cheques bearing Nos.24433, 24434, 24435, 270837 all the said cheques are drawn on Corporation Bank, Shantinagara Branch, Bengaluru and he requested Mr.T.R.Ramaiah to give back remaining two cheques bearing Nos.24434 and 270837, however Mr.T.R.Ramaiah insisted him to issue fresh cheque in the month of April 2016, accordingly he gave back cheque bearing No.412970 drawn on Corporation Bank, Bengaluru for Rs.6,50,000/- undated and received the cheque bearing No.270837 in the month of April 2016, for that he denied the entire case of the complainant and got marked the Ex.D4 is the cheque bounce case filed in CC.No.13076/2017 filed by the T.R.Ramiah and CC.No.3832/2018 are the cases got marked as Ex.D5 and CC.No.17469/2009 filed the cheque bounce case against one Harry Kumar that got marked Ex.D6 and Ex.D7 is the complaint lodged the cheque bounce case and in cheque bearing No.024435 an amount of Rs.9 lakh cheque bounce case has been filed by Mr.Ramaiah as per Ex.D8 and several cheque bounce cases are filed by the said T.R.Ramaiah against various JUDGMENT 19 C.C.12988/2017 persons as per Ex.D8 to 16 and in the cross-examination of DW.1, the accused has denied the entire case of complainant except he admitted that Ex.P2 cheque and Ex.P2(a) signature is belongs to him. As such as per Ex.D8 the 4 cheques issued in the name of T.R.Ramaiah one of the cheque has been misused and filed case against this accused. As such written arguments submitted by the accused and the judgment of this Court as stated above is applicable to the case of the accused, to show that the accused has given rebuttal evidence to the case of the complainant and the complainant failed to prove the alleged guilt of the accused beyond all reasonable doubt and the complainant did not stepped into witness box to depose her case, but during the pendency of this case she died and her LR's i.e. her husband brought on record and her husband given his statement as PW.1, to show that he had paid huge amount of Rs.18 lakh to the accused, but he has not produce any bank statement. As such the complainant has not approached this Court in proper manner and the accused given a rebuttal evidence to the JUDGMENT 20 C.C.12988/2017 case of the complainant. As such the complainant failed to prove the alleged guilt of the accused beyond all reasonable doubt. Hence, the accused is entitled for acquittal. Accordingly, I answered Point No.1 in the Negative.
11. POINT NO.2: From the forgoing reasons, I proceed to pass the following:
ORDER Acting under Section.255(1) Cr.P.C., the accused is acquitted from the alleged offence punishable under Section.138 of Negotiable Instruments Act.
The accused is set at liberty and his bail band and surety bond if any will be continued for a period of 6 (six) months in compliance of under Section.437(a) Cr.P.C. (Dictated to the stenographer, corrected and then pronounced by me in the open court on this the 30th day of January 2020) (NAGARAJEGOWDA. D.) XIII Addl. C.M.M., Bengaluru.JUDGMENT 21 C.C.12988/2017
ANNEXURE Witnesses examined on behalf of the complainant:
P.W.1 : Smt.Nagarathna Dead
LR's of the complainant
Mr.T.R.Ramaiah i.e. SPA Holder
Documents marked on behalf of the complainant:
Ex.P.1 : SPA
Ex.P2 : Cheque
Ex.P2(a) : Signature of the accused
Ex.P3 : Endorsement
Ex.P4 : Legal Notice
Ex.P5 & P6 : Postal receipts
Ex.P7 & 8 : Postal Acknowledgements
Ex.P9 : Complaint
Ex.P10 : Canara Bank Statement
of Account
Ex.P10(a) : Withdraw the entries of an
account of complainant
amount of Rs.15
lakhs and 12 lakh dated
11.03.2016 & 18.03.2016
Ex.P11 : Reply Notice
Ex.P12 : Chord Road Hospital Pvt.Ltd.
Advice on Discharge.
Witnesses examined on behalf of the accused:
D.W.1 : Sri. A.S.Giridhar JUDGMENT 22 C.C.12988/2017 Documents marked on behalf of the accused:
Ex.D1 : 4 photos of complainant house
Ex.D2 : C/c.CC.No.13076/2017
Ex.D3 : C/c cheque of Rs.9 lakhs
Ex.D4 : Evidence of Affidavit of DW.1
Ex.D5 : C/c of CC.No.3832/2018
Ex.D6 : C/c.Evidence of Affidavit
of complainant in
CC.No.17469/2009
Ex.D7 : C/c complaint in
CC.No.79887/2009
Ex.D8 : C/c cheque bearing No.024435
for Rs.9 lakhs in the name of
Complainant.
Ex.D9 : C/c cheque bearing No.024433
for Rs.6 lakhs in the name of
Yogananda.
Ex.D10 : C/c cheque bearing No.412970
for Rs.6,50,000/- in the name
of complainant.
Ex.D11 : C/c Acknowledgment
Ex.D12 : C/c Cr.No.5/17 dated 18.01.2018
Ex.D13 : C/c Cr.No.20/18 dated 18.01.2018
Ex.D14 : C/c Memo dated 9.2.2018
Ex.D15 : C/c Memo of withdraw dated
29.12.2017
JUDGMENT 23 C.C.12988/2017
Ex.D16 : C/c acknowledgment issued by the
police.
Ex.D17 : C/c Order sheet in
CC.No.12988/2017
Ex.D18 : C/c of Order Sheet
in CC.No.16144/2014
Ex.D19 : C/c of Order Sheet
in O.S.No.2565/2012
Ex.D20 : C/c of Order Sheet
in O.S.No.2958/2012
(NAGARAJEGOWDA. D.)
XIII Addl. C.M.M., Bengaluru.