Bangalore District Court
Sri. G.H. Veerabhadraiah vs Sri. Raghavendra. S on 31 March, 2018
CC.No.6598/2017
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present: Smt. HEMA PASTAPUR
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 31st day of March 2018
C.C.No.6598/2017
Judgment under section 355 of Code of Criminal Procedure
Complainant : SRI. G.H. VEERABHADRAIAH,
s/o Late Halagappa,
Aged about 45 years,
Residing at No.903,
BSK 6th Stage,
11th Block, (Ganakallu),
Kengeri Hobli,
Bengaluru - 560 060,
Occupation:- Agriculture.
(By Shri Puttaraju N.H., Advocate)
V/s
Accused : SRI. RAGHAVENDRA. S.,
s/o late Srinivasa,
Aged about 36 years,
R/at No.29/30,
Sri Lakshmivenkateshwara Nilaya,
1
CC.No.6598/2017
3rd Cross, 3rd Main Road,
Hanumagiri Nagara,
Chikkalsandra,
Bengaluru - 560 061,
Occupation:- Civil Contractor.
(By Shri G.R. Chandrashekar, Advocate)
JUDGMENT
That, the complainant has filed the private complaint under section 200 of Code of Criminal Procedure, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the brief facts of the present case are as under:-
1. That, the accused in the month of June 2016 had borrowed a sum of Rs.4,50,000/- in cash as a hand loan from the complainant and towards repayment of the said loan amount had issued in favour of the complainant a Cheque bearing No.173673 dated:-18.01.2017 for a sum of Rs.4,50,000/- drawn on State Bank of Mysore, Uttarahalli branch (40621), Bengaluru - 61.
That, the complainant on 19.01.2017 had presented the said cheque for encashment in State Bank of Mysore, 2 CC.No.6598/2017 Rajarajeshwarinagar branch (627), Bengaluru and on 19.01.2017 the same was returned with the shara as 'Funds Insufficient' in the account of the accused. That, the complainant for the aforesaid acts of the accused on 24.01.2017 had issued the legal notice to him and the same was duly served upon him on 30.01.2017 and the accused on 14.02.2017 had issued his reply notice to the complainant. That, in view of the same, the complainant has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took the cognizance for the offence punishable under section 138 of the Negotiable Instruments Act and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to him. That, the accused in pursuance of said summons appeared before this court through his Learned counsel and he was enlarged on bail. That, the substance of accusation of the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to be tried. That, after completion of 3 CC.No.6598/2017 the complainant side evidence the statement of the accused as contemplated under section 313 of Code of Criminal Procedure, has recorded and read over him and he denied all incriminating evidence appearing against him.
3. That, I have heard the arguments and perused the materials placed on record. That, the accused has submitted his written arguments and I have gone through the same. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in his favour a Cheque bearing No.173673 dated:-18.01.2017 for a sum of Rs.4,50,000/- drawn on State Bank of Mysore, Uttarahalli branch (40621), Bengaluru - 61?
2. Whether the complainant has further proved that, the said cheque was dishonoured as 'Funds Insufficient' in the account of the accused and thereby the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act?
3. Whether the complainant has complied the provisions of section 138(b) of the Negotiable Instruments Act? 4
CC.No.6598/2017
4. What order?
4. That, the complainant to substantiate his contentions has deposed himself as PW1 and got marked the documents at EXs.P1 to 5. That the complainant to strengthen his aforesaid contentions has got examined Sri. Dheeraj s/o Dharanidharan- the Manager, State Bank of India, BEML Layout branch, Bengaluru, as PW2 and closed his side.
That, the accused has not led his oral evidence and in cross- examination of the complainant has got marked the EX.D1.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the NEGATIVE Point No.2 :- In the NEGATIVE Point No.3 :- In the NEGATIVE Point No.4:- As per the final order for the following:-
REASONS
6. Point No.1:- It is specific contention of the complainant that, the accused in the month of June 2016 had borrowed from him a sum of Rs.4,50,000/- in cash as a hand loan.
7. It is pertinent to note here that, the accused though, has not led his oral evidence on his behalf, but, in cross-examination 5 CC.No.6598/2017 of the complainant has taken a specific defense that he has not availed any loan amount from him.
8. It is to be noted here that, the complainant in support of his contentions has placed his reliance on following decisions:-
1. Shobha Chouhan -vs- Gopichand Khatri, reported in 2016 (3) DCR 568 wherein it has held that it is also well settled in law that an accused can rebut the presumption of Section 139 of the Act simply by a preponderance of probability and it is not necessary for him to rebut the said presumption beyond reasonable doubt. He can rebut the presumption by referring the evidence coming out in the evidence adduced by the complainant and it is not necessary for him to adduce independent evidence with regard the stand taken by him vis - to the issuance of the cheque.
2. Amit Kumar -vs- Yogesh Arora, reported in 2016 (3) DCR 673 wherein it has held that since no case is made out against accused, passing acquittal is reasonable one.
3. Sukhdev Singh -vs- Baldev Singh, reported in 2016 (3) DCR 316 wherein it has held that if the accused has 6 CC.No.6598/2017 rebutted the presumption under Section 139 of the Negotiable Instruments Act, then passing of acquittal is just and proper.
4. Anil Kumar -vs- Gurmeet Singh, reported in 2016 (2) DCR 325 wherein it has held that Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Acquittal
- Validity - Held - In absence of any document that applicant being Commission agent had alleged amount with him, it is highly improbable that complainant has advanced a huge amount without receipt or pro-note -
Requires no interference - Appeal is dismissed.
5. Raj Kumar Jawa -vs- Parmod Kumar, reported in 2016 (2) DCR 410 wherein it has held that if main ingredients of offence are not established, so acquitting the accused is just and proper.
9. It is pertinent to note here that, as stated above the complainant has contended that the accused in the month of June 2016 had borrowed from him a sum of Rs.4,50,000/- in cash. It is pertinent to note here that, the burden heavily lies upon the 7 CC.No.6598/2017 complainant to substantiate his aforesaid contentions with all preponderance of probabilities.
It is pertinent to note here that, the complainant in his complaint and in his examination-in-chief has not mentioned the exact dates when the accused had availed from him a sum of Rs.4,50,000/-. It is pertinent to note here that, in absence of any material particulars the contention of the complainant that the accused in the month of June 2016 had availed from him a sum of Rs.4,50,000/- cannot be accepted.
10. It is pertinent to note here that, the complainant in his complaint and in his examination-in-chief has not mentioned about his source of income. It is significant to note here that, the complainant has not produced before the court any document such as his Pass book, Statement of account etc., to substantiate that in the month of June 2016 he possessed with him a sum of Rs.4,50,000/-.
It is pertinent to note here that, the complainant in his cross-examination in page No.3 at 4th line has specifically deposed that during the year 2015-16 he was getting an income of Rs.30,000/- per month. It is pertinent to note here that, the 8 CC.No.6598/2017 complainant to substantiate his aforesaid contentions has not produced before the court any document.
It is further significant to note here that, the complainant in his cross-examination in page No.3 at 10th line has further deposed that he is doing an agricultural work and real estate business. It is pertinent to note here that, the complainant to substantiate his aforesaid contentions has not produced before the court any document.
It is further significant to note here that, the complainant in his cross-examination in page No.4 has specifically deposed that in the year 2008 and 2010 as per the Order of the Hon'ble Civil Court he got LAC amount and he kept the same in bank.
It is pertinent to note here that, the complainant in his cross-examination in page No.4 at 11th line has deposed that, £À£Àß ¨sÁUÀPÉÌ ¸ÀzÀj J¯ïJ¹ DzÉñÀzÀ ¥ÀæPÁgÀ MAzÀÄ ¸À® 8®PÀë 75¸Á«gÀ gÀÆ.UÀ¼ÀÄ ºÁUÀÆ E£ÉÆßAzÀÄ ¸À® 5®PÀë 97¸Á«gÀ gÀÆ.UÀ¼ÀÄ §A¢gÀÄvÀÛªÉ. ¸ÁQëAiÀÄÄ ªÀÄvÉÛ ªÀÄÄAzÀĪÀgÉzÀÄ, 8®PÀë 31¸Á«gÀ gÀÆ¥Á¬ÄUÀ¼ÀÄ EgÀ§ºÀÄzÀÄ JAzÀÄ ºÉüÀÄvÁÛgÉ. 9
CC.No.6598/2017 It is pertinent to note here that, the complainant to substantiate that in the year 2008 and 2010 he got LAC amount has not produced before the court any document. It is pertinent to note here that, in absence of any cogent and reliable evidence the contention of the complainant that in the month of June 2016 the accused had borrowed from him a sum of Rs.4,50,000/- cannot be accepted. It is pertinent to note here that, from entire evidence of the complainant it clearly appears that in the month of June 2016 he was not possessed with him a sum of Rs.4,50,000/- and he has not advanced the same to the accused.
11. It is significant to note here that, the complainant has specifically contended that the accused to discharge his legally enforceable debt had issued in his favour a Cheque bearing No.173673 dated:-18.01.2017 for a sum of Rs.4,50,000/- drawn on State Bank of Mysore, Uttarahalli branch (40621), Bengaluru -
61. It is pertinent to note here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Cheque bearing No.173673 dated:-18.01.2017 for a 10 CC.No.6598/2017 sum of Rs.4,50,000/- drawn on State Bank of Mysore, Uttarahalli branch (40621), Bengaluru - 61, at EX.P1.
12. It is pertinent to note here that, the accused in cross- examination of the complainant has taken a specific defenses that in the year 2012-13 the complainant was in a financial crisis and for which he availed loan from the people and to show them he had money he obtained from him three cheques and when he asked the complainant for returning his said cheques, he failed to return the same to him.
It is pertinent to note here that, the burden heavily lies upon the complainant to substantiate that the accused to discharge his legally enforceable debt had issued in his favour EX.P1. It is pertinent to note here that, as discussed above the complainant has failed to prove the existence of legally enforceable debt and in view of the same it cannot be held that the accused to discharge his legally enforceable debt had issued in his favour EX.P1. It is pertinent to note here that, the accused has rebutted the presumption envisaged under Section 139 of the Negotiable Instruments Act. It is pertinent to note here that, in view of My above findings and without much discussion I hold 11 CC.No.6598/2017 that, the complainant has utterly failed to prove that the accused to discharge his legally enforceable debt had issued in his favour EX.P1. In view of the same point no.1 is answered in the NEGATIVE.
13. Point No.2:- It is specific contention of the complainant that, when he presented the EX.P1 for encashment in State Bank of Mysore, Rajarajeshwarinagar branch (627), Bangaluru, on 19.01.2017 the same was returned with the shara as 'Funds Insufficient' in the account of the accused.
It is to be noted here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Cheque return memo issued by the said Bank at EX.P2.
It is pertinent to note here that, the complainant in support of his contentions has got examined PW2 and got marked his account statement pertaining to State Bank of Mysore, Rajarajeshwarinagar branch (627), Bengaluru, at EX.P5. It is pertinent to note here that, PW2 in his examination-in-chief has specifically deposed that they have issued EX.P2 to the complainant on 19.01.2017 and due to oversight on Ex.P2 they have mentioned the date as 19.01.2017 instead of 20.02.2017. 12
CC.No.6598/2017 It is pertinent to note here that, in the instant case from perusal of EX.P5 it is not forth coming that for what reason EX.P1 was dishonoured.
It is pertinent to note here that, the complainant on one hand has specifically contended that on 19.01.2017 he presented the EX.P1 for encashment in aforesaid bank and on 19.01.2017 the same was returned with the shara as 'Funds Insufficient'. It is to be noted here that, PW2 as stated above has specifically deposed that due to oversight on EX.P2 the date was mentioned as 19.01.2017 instead of 20.02.2017. It is pertinent to note here that, from perusal of EX.P2 it clearly appears that it was created for the purpose of the present case and the complainant has not at all presented EX.P1 for encashment in said bank.
It is pertinent to note here that, the accused in cross- examination of the complainant has got marked his Statement of account from 01.01.2017 to 31.01.2017 pertaining to State Bank of Mysore, Uttarahalli branch, Bengaluru, at EX.D1. It is pertinent to note here that, EX.D1 is not revealing that the EX.P1 was dishonoured for the reason as alleged by the complainant. 13
CC.No.6598/2017 It is pertinent to note here that, the complainant in his cross-examination in page No.7 at 7th line has deposed that, ¸ÁQëUÉ FUÀ ¤r-1 ¢£ÁAPÀ 01.01.2017 jAzÀ ¢£ÁAPÀ 31.01.2017PÉÌ DzÀAvÉ EzÀÄÝ CzÀgÀ°è ¤¦-1 CªÀiÁ£ÀåUÉÆArzÀÝgÀ §UÉÎ £ÀªÀiÆzÀÄ EgÀĪÀÅ¢®èªÉAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë CzÀgÀ §UÉÎ vÀªÀÄUÉ UÉÆwÛgÀĪÀÅ¢®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ.
It is pertinent to note here that, from the said evidence of the complainant it clearly appears that he has given an evasive reply. It is pertinent to note here that, the said evidence of the complainant itself has devoid merits of his case.
It is pertinent to note here that, from perusal of EX.P1 it clearly appears that some material alternations have been made in respect of date i.e, 18.01.2017. It is pertinent to note here that, PW2 in his cross-examination has specifically deposed that if they found any alterations in cheque then they will not honour the same.
It is to be noted here that, from entire evidence of the complainant it clearly appears that he has not at all presented the cheque for encashment in said bank and EX.P2 was created for the 14 CC.No.6598/2017 purpose of the present case. It is further pertinent to note here that, as discussed on point No.1, the complainant has failed to prove that the accused to discharge his legally enforceable debt had issued in his favour EX.P1 and if such being the case, the question of committing the offence by the accused under section 138 of the Negotiable Instruments Act, does not arise at all. It is pertinent to note here that, in view of My above findings and without much discussion I hold that, the complainant has failed to prove that the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act. In view of the same, point no.2 is answered in the NEGATIVE.
14. Point No.3:- It is pertinent to note here that, the accused in cross-examination of the complainant has taken a specific defense that the complainant after dishonouring of EX.P1 has not issued the legal notice to him.
It is pertinent to note here that, the complainant in his examination-in-chief has specifically contended that on 24.01.2017 he issued the legal notice to the accused and the same was duly served upon him on 30.01.2017 and the accused has sent the reply notice to him on 14.02.2017.
15
CC.No.6598/2017 It is to be noted here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked Legal notice issued by him to the accused dated:-24.01.2017 at EX.P3, Postal receipt at EX.P3(a) and Reply notice issued by the accused dated:-14.02.2017 at EX.P4.
15. It is pertinent to note here that, the complainant in support of his contentions has placed his reliance on following decision:-
Dr. K. Kandasamy -vs- Mahalakshmi Metal and Scrap Processing Pvt. Ltd., reported in 2016 (3) DCR 781 wherein it has held that prosecution based on defective statutory notice, cannot be allowed to be continued.
16. It is pertinent to note here that, from perusal of EX.P3 it appears that the complainant had issued the legal notice to the accused on 24.01.2017 and whereas, the cheque in question- EX.P1 was dishonoured on 20.02.2017. It is pertinent to note here that, from perusal of EX.P3 it clearly appears that the complainant had issued the legal notice-EX.P3 to the accused prior to dishonouring of EX.P1.
It is pertinent to note here that, the complainant in his cross- examination in page No.14 has specifically admitted that he issued 16 CC.No.6598/2017 the legal notice-EX.P3 to the accused prior to 26 days of dishonour of EX.P1. It is pertinent to note here that, the complainant in his cross-examination in page No.14 has further deposed that after 7 days of dishonour of EX.P1 he lodged the present complaint and also further admitted that he has not issued any legal notice to the accused after dishonour of EX.P1. It is pertinent to note here that, from perusal of the said admissions of the complainant it clearly appears that he has not complied with the provisions of Section 138(b) of the Negotiable Instruments Act. It is pertinent to note here that, in view of My above findings and without much discussion I hold that, the complainant has failed to comply with the provisions of section 138(b) of the Negotiable Instruments Act. In view of the same, point no.3 is answered in the NEGATIVE.
17. Point No.4:- That, as discussed on points No.1 to 3, I proceed to pass the following:-
ORDER That, acting under section 255(1) of Code of Criminal Procedure, the accused is acquitted for the offence punishable under section 138 of the Negotiable Instruments Act. 17
CC.No.6598/2017 That, bail and surety bonds of the accused are stands cancelled.
That, the accused shall comply with provisions of section 437(A) of Code of Criminal Procedure.
(Dictated to Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 31st day of March 2018) (Hema Pastapur) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Sri. G.H. Veerabhadraiah s/o late
Halagappa and
PW.2 : Sri. Deeraj s/o Dharanidharan.
List of exhibits marked on behalf of complainant:-
Ex.P1 : Original cheque;
Ex.P1(a) : Signature of the accused;
Ex.P2 : Cheque return memo;
Ex.P3 : Legal notice dated:-24.01.2017;
Ex.P3(a) : Postal receipt;
Ex.P3(b) : Postal acknowledgement;
Ex.P4 : Reply notice dated:-14.02.2017 and
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CC.No.6598/2017
Ex.P5 : Statement of account pertaining to State
Bank of India, Bengaluru.
List of witnesses examined on behalf of the accused:-
- Nil -
List of exhibits marked on behalf of the accused:- Ex.D1 : Statement of account pertaining to State Bank of Mysore, Uttarahalli branch, Bengaluru.
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.19