Bangalore District Court
Sri P.Jagadeesh vs Sri T.R. Vishwanath on 7 February, 2017
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY.
Dated this the 7th day of February , 2017,
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.4714/2016
Complainant : Sri P.JAGADEESH,
Son of Premesh Babu,
Aged about 28 years,
R/at No.725/A, 4th Stage,
7th Main Road, 7th Cross Road,
Rajarajeshwarinagara,
Bangalore - 560 098.
(By Sri.Ko. Vijayakumar, Adv.)
V/s.
Accused : Sri T.R. VISHWANATH,
Son of Rudraradhya,
Major in age
No.810, Opp. Balakrishna Ranga
Mandira BEML III Stage,
GKBK Brigadier Road,
R.R.Nagara,
Bangalore - 560 098.
(By Sri G.H.Hanumaraju ,.Adv.)
Date of Institution 20-02-2016.
Offence complained of U/s 138 of N.I.Act.
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Plea of the accused Pleaded not guilty
Final Order Accused is Acquitted.
Date of Order : 07.2.2017.
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, the complainant and the
accused are known to each other as family friends. During the
month of Jan. 2015 the accused had approached the complainant
for hand loan in a sum of Rs.24,00,000/- stating that his property
has been put into public auction on account the same being
created as security for somebody's loan transaction and
undertook to repay the same within one year from the said date.
The complainant did not make any demand for interest and
accordingly the complainant lent the said amount of
Rs.24,00,000/- from time to time and towards repayment of the
said loan amount, the accused had issued two post dated cheques
3 C.C.No.4714/2016
for Rs.4,00,000/- and another cheque for Rs.20,00,000/- vide
cheque bearing No. 685343 dated 25-1-2015 drawn on State
Bank of India, R.R.Nagara branch, Bangalore and promised that
aforesaid cheques would be honoured on their respective dates on
their presentation. Believing the assurance and representations
made by the accused, the complainant has presented the said
cheque for encashment through the complainant's banker i.e.
Karnataka Bank Ltd., R.R.Nagara branch, Bangalore . But the
said cheque came to be dishonoured with the bank endorsement
for the reasons " Account closed", dated 8-12-2015. Immediately
the complainant approached the accused and informed him about
dishonour of the cheque and also demanded the accused to pay
the amount covered under the said cheque . But the accused have
drag on the same on one pretext or the other. Thereafterwards,
the complainant got issued legal notice on 07-01-2016 to the
accused, calling upon the accused to pay the cheque amount .
The notice sent by RPAD to the accused has been returned with a
postal shara as " Address Absent/intimation served on 09/11-01-
2016. But inspite of receipt of intimation, accused 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
4 C.C.No.4714/2016
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.P5 and this PW-1 has been
fully cross examined by the accused counsel and he wanted to
lead further cross-examination of PW-1 by putting similar
questions , the same was rejected by this court and taken the
accused counsel fully cross-examined the PW-1 by rejecting the
prayer 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 .
He in support of his denial, lead his oral evidence as DW-1 on
Oath and examined two witnesses as DW-2 & DW-3 . Both of
them have filed their chief examination by way of affidavit and got
marked Ex.D 1 to Ex.D4 and through DW-3 got marked Ex.D5
and these DW-1 to 3 have been fully cross-examined by the
complainant counsel and thus closed his side defence evidence.
5 C.C.No.4714/2016
5. . In support of the case of complainant, the Ln.counsel
for complainant submitted written arguments by narrating the
facts and circumstances of the case and stated that complainant
had fulfilled all the ingredients of the offence punishable u/s. 138
of NI Act and punish 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. In support of his
contention, he relied on the decision reported in :2008 AIR SCW
738, 2010(5) KCCR 3397 and ILR 2008 Karnataka 4629. Hence,
prays for acquittal of the accused in accordance with law.
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 cheque alleged to be issued by the accused and
identified the signature of the accused as per Ex.P1(a). This
issuance of cheque in favour of complainant for discharge of legal
liability has been disputed by the accused. Further got marked
Ex.P2 is an endorsement issued by the bankers stating that Ex.P1
cheque was dishonoured due to ""ACCOUNT CLOSED ". Ex.P3 is
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the copy of legal notice. This notice does not contain the
signature of the complainant except his counsel. Ex.P4 is the
RPAD postal receipt for having sent legal notice to the accused.
Ex.P5 is the postal cover returned with the postal shara "
addressee intimation served and not claimed" etc.. Ex.P5(a) is
notice in it. In order to show the complainant had sufficient
amount with him, he has not produced any documentary
evidence. As such, prima facie the case of complainant create
doubtful whether he really advanced huge amount of Rs.24 Lakhs
to 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 stated that , he knows the complainant and he
used to come to his house and at that time when he visited to the
house of accused, without the knowledge of accused, complainant
taken away the cheque belongs to the accused and he withdrawn
an amount of Rs.Four Lakhs out of one cheque . These things
have been brought to the notice of Bank Manager . The Manager
of the Bank has told that he directed to close his Bank account .
Accordingly, the bankers have closed his bank account. This fact
7 C.C.No.4714/2016
is clearly established that as per Ex.P2 endorsement by the
bankers stating that Ex.P1 cheque was dishonoured due to
Account closed not due to "Funds insufficient". Further with
respect of demand notice issued by the complainant, he has not
received but the address stated in Ex.P5 postal cover is belongs to
this accused. With respect of Ex.P1 cheque is concerned, he
received SMS alert to his mobile phone from his bankers as well
as on 23-2-2016 he lodged complaint to the D.C.P. Bangalore
against the complainant for misusing of Ex.P1 cheque and
identified his police complaint as per Ex.D1 and also the
complainant without the knowledge of this accused, withdrawn
an amount of Rs.Four lakhs from his bank account for that, he
got marked Xerox copy of the cheque as per Ex.D2. Further
produced blank On Demand Promissory Note true copy as Ex.D3
and after lodging of the complaint to the police, the police have
issued an endorsement as per Ex.D4 is true copy of the same.
9. In support of the case of the accused, accused examined
Pramod Joshi as DW-2, who supports the case of accused and he
knows the complainant who is none other than the neighbour of
the complainant and there is no transaction taken between the
complainant and the accused as alleged by the complainant.
Further stated that the accused fell ill . The complainant being
8 C.C.No.4714/2016
friend used to take him to the hospital and taken care of the
accused at his house while he was Sick during that time, the
complainant might have committed theft of the cheque and might
have misused the same etc.. further examined Thukaram as
DW-3. In his chief examination filed by way of affidavit , he too
also stated that he knows both complainant and the accused and
there is no transaction taken between them. Further stated that
accused had pledged his house property to the Bank for collateral
security . Thereafter they have sold the said house in order to
clear the bank loan and he also stated similar suggestions as per
the chief examination of DW-2 with respect of hospitalization of
the accused and the complainant looked after him etc.. Further
to show one Thukram filed cheque bounce case against
complainant herein in C.C.No.783/2015 for that got marked
certified copy of the ordersheet and also copy of complaint at
Ex.D5.
10. On the basis of chief examination of DW 1 to 3 coupled
with the Ex.D1 to Ex.D5 are clearly establishes that the accused
had given rebuttal evidence to the case of complainant . In the
cross-examination of PW-1, accused counsel tried to establish
that the accused obtained huge loan amount of Rs.24 lakhs out of
9 C.C.No.4714/2016
the said amount an amount of Rs.Four lakhs was given by the
accused by way of cheque was withdrawn but another cheque of
Rs.20 lakhs Ex.P1 cheque was dishonoured etc.. In this regard,
PW-1 stated that he do not know the contents of Ex.P1 cheque
and the signature of the cheque are in different ink and in
different handwriting . Further stated that the amount given to
the accused which was obtained from one Chandra kumar for
that, he has not produced any corroborative evidence or examined
the said Chandrakumar to support the case of complainant to
establish that he obtained loan from Chandra kumara and given
to this accused. Likewise this complainant also obtained loan
from one Manu and one Chandru and also an amount of Rs.8
lakhs from Rakshitha Auto Finance during the year, 2013 for that
also the complainant has not produced any documentary
evidence. The accused counsel similarly cross-examined the
PW-1. Hence, this court noticed that already accused counsel
cross-examined the PW-1 of his fullest satisfaction . But he
suggested similar questions , the same was rejected by this curt
and taken the cross-examination of PW-1 fully examined .
11. In support of the case of complainant, the complainant
has not produced any corroborative evidence to support his case.
10 C.C.No.4714/2016
12. The complainant counsel cross-examined the DW-1 . In
the cross-examination, he tried to establish as per the chief
examination of PW-1 , same has been denied by him and with
respect of Ex.D1 complaint lodged to the police, he tried to
establish that police have not registered to show that the case
against the complainant etc.. But he admitted as per Ex.D1
complaint an amount of Rs.4,00,000/- has been withdrawn by
the complainant and he denied that he had failed to given
instruction to his bankers to stop payment of the cheque with
respect of Ex.P1 cheque . Like wise in the cross-examination of
DW 2 and DW-3 the complainant counsel suggested that in order
to help to the accused, they have given a false evidence before this
court . Except denial contention , the complainant failed to prove
the alleged guilt of the accused beyond all reasonable doubt.
13. In support of the case of complainant, the learned
counsel for the complainant submitted written arguments by
narrating the facts and circumstances of the case but in order to
substantiate his contention, the complainant has not adduced or
produced any corroborative evidence to establish that the
complainant had sufficient amount with him and the same
amount has been given to the accused. As such the written
11 C.C.No.4714/2016
arguments submitted by the complainant counsel will not support
their case.
14. In support of the case of accused, the learned counsel for
the accused submitted written arguments by narrating the facts
and circumstances of the case and submits that the accused had
given rebuttal evidence to the case of complainant. In support of
his contention, he relied on the decisions reported in - 2015 AIR
SCW 64 ( K.Subramani Vs. K.Damodara Naidu) In which, Hon'ble
Supreme Court of India held that " The 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... . Further relied on the
decision reported in 2010(5) KCCR 3397 ( S.Timmappa Vs.
L.S.Prakash) In which Hon'ble High Court of Karnataka held that-
--- Sections 139, 118(a), (b) and 139- Presumption - The provision
of section 139 does not contemplate existence of debt as a matter
of legal presumption- The court held that it the drawee of cheque
to has to prove the existence of debt or liability and further relied
on ILR 2008 Karnataka 4629 ( Shiva Murthy Vs. Amruthraj) In
which, Hon'ble High Court of Karnataka held that ... " .... the
courts ought to have considered as to whether the complainant
has proved the existence of legally enforceable debt."
12 C.C.No.4714/2016
But in this case the complainant failed to establish the
existence of leally recoverable debt from the accused. Hence the
aforesaid decisions coupled with the defence taken by the accused
are squarely applicable to the case of accused to establish that
the accused had given rebuttal evidence to the case of
complainant. Even in the complaint , the complainant has not
specifically stated the date on which he advanced the loan
amount to the accused but during the month of Jan. 2015 . As
such, the complainant failed to prove the alleged guilt of the
accused . Hence, accused is entitled to acquittal. . Accordingly, I
pass the following:
ORDER
The complaint u/s.200 of Cr.P.C., filed by the complainant is hereby dismissed. No costs.
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 if any shall stand cancelled.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 7th day of February, 2017) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
13 C.C.No.4714/2016ANNEXURE Witnesses examined for the Complainant:
PW.1 : P.Jagadeesh Witness examined for the accused:
DW-1 : T.R.Vishwanath DW-2 Pramod Joshi DW-3 Thukaram
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 : Returned Postal cover Ex.P5a : Notice in it.
List of Documents marked for the accused:
Ex.D1 : Complaint to the Inspector of police Ex.D2 Copy of cheque Ex.D3 Copy of On Demand Promissory Note with consideration receipt. Ex.D4 Acknowledgement by police. Ex.D5 Ordersheet, copy of complaint .
XXII ACMM, Bangalore.14 C.C.No.4714/2016