Bangalore District Court
Sri H.Sampanna Kumar Shetty vs Mr.Nandakishore .R on 8 June, 2016
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 8th day of June , 2016,
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.5930/2014
Complainant : Sri H.Sampanna Kumar Shetty,
Aged 51 years,
Residing at No. 42,
Nishan Park Apartments,
Thimmaiah Layout,
Basaveshwaranagar,
Bangalore - 560 079.
(By Sri.Srinath G.B..Adv.)
V/s.
Accused : Mr.Nandakishore .R.
Son of Sri Mahabala Shetty,
Major,
R/at No.206, Plesant villa Apt.
Abbahiya Reddy layout,
Outer Ring Road, Near CCD,
Doddenkundi,
Marathalli,
Bangalore - 560 037.
(By Sri V.Padamraj Mutha,.Adv.)
Date of Institution 30-10-2013.
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
2 C.C.No.5930/2014
Final Order Accused is Acquitted.
Date of Order : 08.06.2016.
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. The complainant submits that he is a Civil Engineer by
profession and accused is known to complainant for the last
several years, the accused had approached the complainant
stating that accused is the absolute owner in respect of property
bearing Site No. 7 and 8 situated at 1st Phase, MOokambika
layout , Mylasanddra village, Kengeri, Bangalore and it was
informed that accused has got the proposed plan and estimate
with specification with regard to construction of residential
building on the said site from an Architect as such, accused has
requested complainant to construct the residential building on
the said site. After discussion with regard to proposed plan and
estimated cost with specification given by the Architect it is agred
between complainant and accused that the rate shall be fixed
3 C.C.No.5930/2014
depending upon marketability, fluctuation in cost of labour and
material and further the complainant and accused have discussed
with regard to revised rate pertaining to plan and estimate along
with specification given by the Architect, and further agreed that
for non tendered items the accused is liable to pay 20%
additional amount on the material, labour and overhead charges .
Finally on satisfying with the revised estimate, the accused has
uploaded the same to his laptop on the same day. Accordingly,
accused entrusted the work of construction of residential building
to the complainant. Further agreed that, the construction
material and other requirement has to be procured/purchased by
complainant for the purpose of construction of residential
building and complainant shall provide all the services in
connection with the construction of building such as approval of
sanction plan from BBMP , approval of Sewerage and water
connection from BWSSB and power from BESCOM etc.. The
accused had paid a sum of Rs.2,00,000/- to complainant by way
of cash as advance towards construction of residential building.
Stage by Stage the complainant used to give report to accused
and based on it , the accused had made payment to complainant
by way of cash. The complainant has utilized the services of
Carpenter, Electrician, Plumber and to the material suppliers
4 C.C.No.5930/2014
complainant had made part payment to them out of the amount
received by the accused. Further states that in the month of April
and May, 2013 the construction was almost near the stage of
completion and hence, complainant had given final progress
report with regard to progress of work, as per the same total
expenditure spent on construction of residential building is
arrived at Rs.66,82,498/- . Accused expressed his full
satisfaction after verifying all the facts and figures and
acknowledged the final figure of Rs.66,82,495/-. Further states
that at the time of final settlement, accused wife and father of
accused were present along with Architect and site supervisor. On
verification of the progress report, the accused had requested
complainant to complete few pending work as the Gruhapravesha
was fixed as 30-5-2013. Complainant states that on being fully
satisfied with regard to work made on the property accused had
issued cheque bearing No. 026442 dtd 20-5-2013 and another
cheque bearing No. 485035 dated 28-5-2013 drawn on Canara
Bank , Basaveshwaranagar, Bangalore - 79 for sum of Rs.
1,00,000/- and Rs.8,00,000/- respectively towards part payment
of due amount in respect of construction made on the site.
Further states , in addition to the two cheques accused is due in a
sum of Rs.1,87,295/-. The complainant had presented the said
5 C.C.No.5930/2014
two cheques for encashment through his bankers Canara Bank,
Basaveshwara nagar branch, Bangalore but the said two cheques
have been dishonoured and returned with endorsement by
banker for the reasons "payment stopped by the drawer" vide
endorsement dated 20-08-2013. Thereafterwards, the
complainant got issued demand notice on 17-09-2013 to the
accused, calling upon the accused to pay the cheque amount . It
is submitted that the notice sent to the accused through RPAD
cover has returned with shara "I/D" . . Inspite of receipt of legal
notice, he did not complied the notice but accused had sent a
reply notice taking untenable contention 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.P9 and this PW-1 has been
fully cross examined by the accused counsel and thus
complainant closed his side evidence.
6 C.C.No.5930/2014
4. There afterwards, the accused examined u/s.313 of
Cr.P.C. in which, he totally denied the entire case of complainant .
He in support of his denial, lead his oral evidence as DW-1 on
Oath and got marked Ex.D 1 to Ex.D8 and examine one witness
as DW-2 and these DW-1 and 2 have 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 on merit. In support of his contention he relied on
the decisions reported in :2007(1) KCCR 24. Hence, he prays for
convicting the accused in accordance with law.
6. In support of the case of accused, the Ln.counsel for
accused submitted written arguments by narrating the facts and
circumstances of the case and stated that the accused had given
rebuttal evidence to the case of complainant Hence, prays for
acquittal of the accused in accordance with law. In support of his
contention, he relied on the decisions reported in : AIR 2009
Supreme Court 568 and AIR 2008 Supreme Court 1325(1) and
accordingly, he prays for acquitting the accused in accordance
with law.
7 C.C.No.5930/2014
7. 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 and 2 cheques alleged to be issued by the accused
and identified the signature of the accused as per Ex.P1(a) and
Ex.P2(a). These issuance of cheques in favour of complainant for
discharge of legal liability has been disputed by the accused .
Further got marked Ex.P3 and Ex.P4 are endorsements issued by
the bankers stating that Ex.P1 &2 cheques were dishonoured due
to ""payment stopped by the drawer". Ex.P5 is the copy of legal
notice . This notice does not contain the signature of the
complainant except his counsel . Ex.P6 is RPAD postal receipt for
having sent legal notice to the accused. Ex.P7 is the postal cover
returned with the postal shara " Information delivered". Ex.P7(a)
is notice in it. Ex.P8 is the reply notice issued by the accused
through his counsel in which , he has admitted that the accused
has engaged service of complainant for construction of his
residential building. With regard to the reputation of complainant
is not aware by the accused. Due to the high respect and
confidence of accused is having with his father , is the main
criteria to engage the services of complainant and nothing else as
high lighted in the notice under reply. Further stated that right
8 C.C.No.5930/2014
from the beginning the accused pleased the complainant and
without insisting for written understanding with regard to
materials, time of construction, stages of payments permitted the
complainant to proceed with the construction. Accordingly, the
payments have been made in lakhs to the complainant as and
when he demanded , without doubting the attitude which is an
undisputed fact and supported by documentary evidence. Further
stated that there is no specific understanding with regard to work
and purchase of materials , getting the approval of the plan,
power and water connection and other incidental works connected
with construction of the residential building. But it is totally false
that in the month of April, May, 2013 construction was almost
near the stage of completion. In fact several works which are
agreed by the complainant were pending . In this regard in view of
the non-co-operation of the complainant to finish those works, the
accused has entrusted those works to a new contractor recently,
left with no other alternative. This accused never expressed his
satisfaction/consent in respect of the final figure of Rs.
66,82,495=00 as claimed by the accused. It is totally false to say
that the final settlement between the accused and complainant
were witnessed by wife, father and site Supervisor of this accused.
It is true that this accused has issued cheque bearing No. 026442
9 C.C.No.5930/2014
and 485035 for sum of Rs.1,00,000/- and Rs.8,00,000/-
respectively on faith and usual course of payment. Later on since
the works are in the finishing stage, on verifying work,it is found
that the work agreed to the extent of the amount referred in the
cheque was not at all carried out by the complainant. As a result
this accused forced to prevent his banker from making the
pament/honouring cheques in question. This accused specifically
denies that he is due a sum of Rs.1,87,295-00 and the amount
involved in cheque in question as alleged by the complainant etc..
Hence, prays not to initiate action against this accused and to
return the cheque in question etc.. Against to the contents of
Ex.P8 reply notice, the complainant has not issued any rejoinder
or counter by admitting or denying the facts stated in the notice.
But at the end of his cross-examination got marked Ex.P9 Bill of
Quantities/Estimate/Progress dated 28-5-2013 addressed to the
accused in which, what are all the construction work was taken
place and one Consulting Engineer prepared the said Estimate
and arrived at the conclusion that Rs.66,82,495=00 is to be
settled for construction of the building of the accused etc..
8. The accused has denied the entire case of complainant .
In support of his denial, he lead his evidence as DW-1 on Oath .
In which, he has admitted the relationship between the
10 C.C.No.5930/2014
complainant and accused and he has stated about the contents of
Ex.P8 reply notice and in order to show one S.K.Construction
have used materials and invested the amount and prepared a
report and also one S.J.Agencies received the receipt and also his
Canara Bank pass book entries and purchase of materials ,
Ceramics have issued an Order Form for that, got marked Ex.D1
to Ex.D6. There is no written agreement taken between the
complainant and accused about construction of residential
building. Ex.P2 cheque for Rs.8,00,000/- given to the
complainant in the month of May, 2013 without mentioning the
amount and date, he given the said cheque except he put name
of the complainant . Likewise he has also issued Ex.P1 cheque in
the month of May, 2013 by filling up the entire cheque and put
the signature and he asked the complainant for payment and he
received the notice from the complainant for dishonour of the
cheque for that, he issued a reply notice as per Ex.P8 and hence,
he has not committed any offence as alleged by the complainant
and hence, he prays for acquittal from this case.
9. The complainant counsel cross-examined the DW-1 . In
the cross-examination, he admitted that there was a construction
work taken between the complainant and the accused but Ex.P1
and Ex.P2 cheques were not issued for discharge of liability
11 C.C.No.5930/2014
towards the complainant. The complainant has not completed
the construction work as per agreed terms between them but he
admitted that on 30-5-2013 his construction was completed and
he made Gruhapravesha . But as per the terms of Agreement
taken between the complainant and accused, the complainant
has not fulfilled the entire construction of the residential building
of accused. But he admitted as per Ex.D3 Work Order , there is
no mentioning of payment towards the said Work Order . Except
the total denial of contention of accused, the complainant failed to
given cogent and convincing evidence to support his case.
10. In support of the defence taken by the accused, the
accused examined DW-2 Suresh kumar, Civil Engineer , who
support the case of accused stating that as per the request of
accused , he prepared Bills as per Ex.D1 and Ex.D2 and identified
the signature on the said bill. As per the said bills, the accused
had given amount to this witness. In his cross-examination , the
accused asked him to completion of work accused residential
house . Accordingly, he completed the work and he has not shown
in his Income Tax Returns about the expenditure of the Ex.D1
and Ex.D2 bills amount. Except the total denial of contention of
accused, the complainant counsel failed to disprove the case of
accused as per his defence.
12 C.C.No.5930/2014
11. As per the defence taken by the accused, the accused
counsel cross-examined the PW-1. In the cross-examination , he
tried to elicited that as per Ex.P9 Estimate taken between the
complainant and accused and he denied that in the month of
May, 2013 accused issued last estimate to the complainant. In his
chief examination, he has stated that in the month of May, 2013
the construction of building was almost over etc.. But he
constructed only 95% of the building of accused and remaining
construction has been completed by the accused through some
other persons and at the time of construction of building many
cheques issued by the accused were passed but Ex.P1 and Ex.P2
cheques were not passed. More so, these cheques are not
dishonoured due to "Funds insufficient" but due to "payment
stopped by the drawer". Hence, the accused has established his
case to show that the complainant has not fulfilled the
construction of the residential building of the accused . Hence,
alleged cheques in question are not issued for discharge of legal
liability.
12. In support of the case of complainant, the learned
counsel for the complainant argued that, alleged cheques in
question were issued for discharge of legal liability towards the
complainant and hence, the accused is liable for conviction. In
13 C.C.No.5930/2014
support of his contention he relied on the decision reported in
:2007(1) KCCR 24 (Smt.Usha Suresh Vs. Sri R.V.Shashidaran) In
which Hon'ble High Court of Karnataka held that " Sec.138-
offence under- conviction- setting aside of Appealed against- Duty
of the court to curb the attempts on the part of the parties who
deviate the objectives of law- duty of the court to raise initial
presumption in every case- Existence of circumstances under sec.
139 of the Act- Entitlement of accused to raise defence- showing of
plansible explanation- Duty of the Appellate Court.
13. On careful perusal of the aforesaid decision coupled with
the case of complainant, the said decision is not squarely
applicable to the case of complainant to show that the accused
had issued alleged cheque in question for discharge of legal
liability.
14. In support of the case of accused, the learned counsel
for the submitted Notes of arguments by stating that as per the
agreed terms , the complainant has not fulfilled the residential
building of accused and he admitted that still 5% of work is to be
completed and hence, the accused completed the said work from
other Engineer. Ex.P1 and Ex.P2 cheques were not issued for
14 C.C.No.5930/2014
discharge of legal liability . In support of his contention, he relied
on the following decisions reported in :
AIR 2009 Supreme Court 568 ( P.Venugopal Vs. Madan
P.Sarathi) wherein it is held that (A), Negotiable
Instruments Act (26 of 1881) S.118, S 139 presumption
that cheque was issued in discharge of debt - scope -
Does not absolve complainant of burden to prove
existence of debt or liability.
AIR 2008 Supreme Court 1325(1) In which it is held that
"(A)Negotiable Instruments Act (26 of 1881) S.118, S 139
presumptionunder S.139 merely raises presumption in
favour of holder of cheque that same has been issued for
discharge of any debt or other liability - Existence of
legally recoverable debt-Is not a matter of presumption
u.s. 139.."
15. On the basis of aforesaid decisions coupled with the
defence taken by the accused, those decisions are squarely
applicable to the case of accused to show that the accused had
given rebuttal evidence to the case of complainant and
accordingly, he prays for acquitting the accused in accordance
with law.
15 C.C.No.5930/2014
16. On the basis of the oral and documentary evidence of
both complainant and accused, alleged cheques in question were not
issued for discharge of legal liability. More so, alleged cheques in
question were dishonoured not due to "Funds insufficient" but due to
"payment stopped by the drawer". As per the contents of Ex.P8 reply
notice, the complainant has not issued any rejoinder or counter by
admitting or denying the facts stated in the notice. Under these
circumstances, the case of complainant creates doubtful and hence,
the benefit of doubt goes to the accused. Hence, accused is entitled for
acquittal. Accordingly, I pass the following:
ORDER
Acting u/s 265 of Cr.P.C., the accused is acquitted from the alleged offence punishable u/s 138 of N.I.Act.
Accused is set at liberty. His bail bond and surety bond shall stands cancelled.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 8th day of June, 2016) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
16 C.C.No.5930/2014ANNEXURE Witnesses examined for the Complainant:
PW.1 : H.Sampanna kumar Shetty Witness examined for the accused:
DW-1 : Nanda kishore R. DW2 Suresh kumar
List of Documents marked for the Complainant:
Ex.P1 & 2 : Cheques Ex.P1a & 2a : Signature of the accused Ex.P3 & 4 : Endorsement Ex.P5 : Legal notice Ex.P6 : Postal receipt Ex.P7 : Postal cover Ex.P7a Notice in it. Ex.P8 : Reply notice. Ex.P9 Bill of quantities.
List of Documents marked for the accused:
Ex.D1 & 2 : Estimation
Ex.D3 Receipt dtd 30-10-2013.
Ex.D4 Letter.
Ex.D5 & 6 Order forms
XXII ACMM, Bangalore.
17 C.C.No.5930/2014