Bangalore District Court
Sri.H.N.Chandru vs Sri.Kudlu Ramakrishna on 14 December, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 14th day of December, 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. 6894/2015
Complainant : Sri.H.N.Chandru,
Son of K.Nanjappa,
Occupation- Business,
Aged about 56 years,
Residing at No. 6,
H.V.Lane, 1st Cross,
1st Main, Parvathipura,
Bangalore - 560 004.
(By Sri SSP Advocates.)
V/s.
Accused : Sri.KUDLU RAMAKRISHNA,
Son of Hoovappagowda,
Aged about 57 years,
No.52, 2nd Main Road,
Bikasipura, ISRO Layout,
Bangalore - 560 078.
( By Sri M.B.Ravikumar, Adv.)
Date of Institution 20-02-2015.
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
Final Order Accused is Acquitted
Date of Order : 14.12.2015.
2 C.C.No.6894/2015
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. The complainant submits that, the complainant and
accused are known to each other since last 20 years and accused
was in cordial term of complainant. Taking undue advantage of
the cordiality the accused has approached the complainant and
requested him to accommodate hand loan of Rs.17,65,000/- on
different dates in five installments from April 2014 to May, 2014.
The complainant gave above mentioned amount by way of cash
and the accused promised to return the same within three
months for which, the accused had issued 11 post dated cheques
of different banks. Among the said eleven post dated cheque, the
cheques bearing No. 972854 dated 20-09-2014 and No.972855
and 972856 dtd. 20-12-2014 for Rs.3,00,000/- each drawn on
Indian Overseas Bank , Jayanagar 7th Block, Bangalore . The
complainant has presented the said cheques through his banker
Syndicate Bank, Gandhinagar branch, Bangalore for collection.
But the said cheques were dishonoured on the ground that
3 C.C.No.6894/2015
FUNDS INSUFFICIENT with bank endorsement on 30-12-2014.
The complainant immediately has made efforts to contact the
accused however, accused has avoided the complainant and
hence, left with no other option complainant has issued a legal
notice dated 05-01-2015 to the accused, calling upon the accused
to pay the cheque amount . The notice was duly served to the
accused on 6-1-2015. The accused has replied to the said notice
and he did not 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.P10 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 .
He in support of his denial, lead his oral evidence as DW-1 on
4 C.C.No.6894/2015
Oath and at the time of cross-examination of PW-1 got marked
Ex.D1 and at the time of chief examination got marked Ex.D 1 to
Ex.D9 and also examined two witnesses on his behalf as DW 2
and 3 but, later the evidence of DW-3 was discarded but DW- 1
and 2 have been fully cross-examined by the complainant counsel
and thus closed his side defence evidence.
5. 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 and submits
that the complainant has fulfilled all the ingredients of offence
punishable u/s. 138 of NI Act and 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 complainant failed to
prove the guilt of the accused beyond all reasonable doubt.
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 to Ex.P3 cheques and identified the signature of
5 C.C.No.6894/2015
the accused as per Ex.P1(a) to Ex.P3(c). This issuance of cheque
in favour of complainant for discharge of legal liability has been
disputed by the accused stating that alleged cheques were issued
for the purpose of security during the year, 2011. But the
complainant altered as "2014" on the cheque in place of "2011"
and filed this complaint etc.. In this regard, as per the case of
accused he lodged the police complaint against the complainant.
As per the private complaint before the V ACMM., Bangalore . The
V ACMM., Bangalore called the original cheques for their
proceedings. Accordingly, this court has sent the original cheques
for their proceedings. Further got marked Ex.P4 to Ex.P6 are
endorsements issued by the bankers stating that Ex.P1 to 3
cheques were dishonoured due to "Funds insufficient". Ex.P7 is
the copy of legal notice . This notice does not contain the
signature of the complainant except his counsel . Ex.P8 is the
postal receipt. Ex.P9 is the postal acknowledgement to show the
legal notice sent to the accused was duly served .For that, the
accused through his counsel sent reply notice as per Ex.P10 in
which, he denied the entire case of complainant and he has taken
specific contention in his reply notice at paras 5 to 8 are as under:
"5. It is submitted that there was a memorandum of
understanding which was held on 20-6-11 between my
6 C.C.No.6894/2015
client and your client in the presence of K.C.N.
Chandrashekar, Sa.Ra. Govindu , B.N. Gangadhar and
in the said document the aforesaid cheques specifically
dates were mentioned and further it is mentioned that all
the old cheques and documents should be handed over to
conciliators and your client shall not file any case and he
should with draw all the cases and further your client is
directed to return all the cheques , on demands, notices,
Bond papers and further it is mentioned in the said
documents that all the old cheques to be returned to the
conciliators. That being the case your client has forged
the cheque bearing No. 972854 dated 20-9-14, 972855 ,
972856 are dated 20-12-14. Here when the cheques
were given to your client the cheque bearing No. 972854
and its original date was 20-9-11, the cheque bearing No.
972856 and its original date was 20-03-12 and the
cheque bearing bearing No. 972855 and its original date
was 20-12-11. Your client has committed forgery and
misused the said cheques and presented all the 3
cheques before the bank in order to have wrongful gain
and wrong fully loss to my client. My client will
immediately file criminal case against your client for
committing forgery, fabrication of documents, misusing
the said documents. In case your client happens to
produce the said documents before any court of law then
further your client is committing one more offence that is
perjury.
"6. My client further states that after the aforesaid
memorandum of understanding your client, and my client
7 C.C.No.6894/2015
went to kanathur Sree Nalvar Daivasthanam, situated at
Kasargodu, Kerala and one More compromise was
arrived between your client and my client and further it
was agreed that my client shall pay Rs.8,25,000/- on
different dates i.e, the first installment on 20-10-12,
second installment on 20-01-13, third installment on 20-
4-13 and fourth installment on 20-7-13. According to the
aforesaid agreement also my client has paid the entire
amount to your client. But your client has created new
cause of action in order to file false case against my
client.
" 7 My client further states that your client is harassing
my client in one or the other way to that effect even
though you have received the entire amount. To that
effect he has also lodged police complaint before the
chamrajpet police for threatening and extortion.
"8. My client states that your client has not appraised
you properly regarding the transaction between my client
and your client. In fact, he has committed the grave
offence and if at all if he misuses the aforesaid cheques
then my client will take action your client. "
Against to the contents of reply notice, the complainant has not
issued any rejoinder or counter by admitting or denying the facts
stated in the notice, except in the complaint, he has stated that
accused issued an untenable reply etc..
8 C.C.No.6894/2015
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 that , he knows the complainant from
the year, 2009-2010 and he used to obtain loan from him and
return the same . Further stated that during the year, 2011 he
obtained Rs.3,00,000/- from this complainant with interest.
Accordingly, he used to pay interest on the said amount but some
times there was a delay in paying the interest. For that, the
complainant demanded more amount i.e. Rs.15 lakhs from him
and he threatened this accused over phone for repayment of loan
amount for that, this accused lodged the complaint to the
Chamrajpet Police station . The police have called the
K.C.N.Chandrashekar to the police station along with the
complainant Saragovind, B.N.Gangadhar were also appeared
before the police. There was a talk taken with respect of money
transaction and the complainant agreed to receive the amount of
Rs.9,00,000/- from this accused . Accordingly, this accused
issued Ex.P1 to Ex.P3 cheques during the year, 2011 itself. But
the complainant made it as "2014" on the cheque and presented
to the bank. Further stated that, there was an agreement taken
between them as per Ex.D1. As per the agreement, he paid
Rs.1,50,000/- to K.C.N.Chandra shekar with the assurance given
9 C.C.No.6894/2015
to this complainant for that, there was an endorsement on the
Ex.D1 . The complainant used to issue receipt for receipt of the
said amount. But during the year, 2011 he did not issue any
receipt but on the cheque , he made it as year, 2014 and
presented to the Bank that there was no transaction taken with
the complainant during the year, 2014. After receipt of the legal
notice for dishonour of the cheque , he issued Ex.P8 reply notice
in which, he has stated each and every facts of the case. Further
for misusing of the alleged cheque in question by this
complainant, he lodged complaint to the Kumaraswamy layout
police station . The police have registered F.I.R. against the
complainant as per Ex.D2 . Further he has stated that the
complainant also submitted private complaint against him in PCR
No. 3780/15 for that, he has produced certified copy of the said
case as Ex.D3 . Further during the year, 2013- 2015 , he had a
bank account with ICICI Bank, National C0-operative Bank,
Corporation Bank , Indian Overseas Bank, Thyagaraja nagar Co-
operative Bank, Vijaya Bank. For that, he has produced cheques ,
counterfoils marked at Ex.D4 to Ex.D.9 and hence, he prays for
acquittal of the accused from this case.
9. In the further chief examination he has stated that,
cheque numbers i.e. alleged cheques in question present and
10 C.C.No.6894/2015
future numbers are passed as per his Bank account etc.. This
DW-1 has been cross-examined by the complainant counsel. In
the cross-examination , he tried to elicited that, this accused has
obtained loan amount from this complainant and for repayment of
the said amount, he issued cheque in question , the same are
dishonoured due to "Funds insufficient". But he has stated that
as per Ex.D1 agreement, there is no mentioning of the amount
paid to the Mediator and he has not produced any receipt from
the Chandra shekar for repaying the loan amount to this
complainant and admitted that Ex.D1 agreement was Notarized
after 2 to 3 days after preparing the said agreement etc.. Further
in the cross-examination , he admitted that in the Ex.D1
agreement, there is no mention of alleged cheque number in
question etc...
10. In support of the case accused, accused examined DW-2
K.C.N.Chandrashekar, who is a Mediator to the Ex.D1 Agreement
taken between the complainant and the accused and put his
signature as Conciliator, but this DW-1 has not been cross-
examined by the complainant counsel. Like wise, he examined
DW-3 B.N.Gangadhar, who is also one of the Attester to Ex.D1
11 C.C.No.6894/2015
Agreement but this DW-3 evidence has not been pressed by the
accused counsel. Hence, this court discarded the evidence of DW-
3.
11. As per the defence taken by the accused counsel cross-
examined the PW-1. In the cross-examination , he tried to elicited
that alleged cheques were not issued for discharge of legal liability
and the complainant has given the amount to the accused during
the year, April, 2014 to May, 2014 on three occasions. On each
occasion Rs.3,00,000/- totally paid Rs.17,00,000/- to this
accused. But he could not able to say the exact date on which, he
given the said amount for that, there was no documentary
evidence has been made with them and he has not obtained any
receipt from the accused for having paid the said amount. The
amount comes to this complainant by pledging 400 grams Gold to
the Jewellery in the shop and also obtained the amount from his
Sister Kamala and Laxmi and also his brother Krishnappa. After
collecting the said amount, he given to this accused etc.. and he
denied that this accused is a Famous Film Director but he has
stated he is only a Director. As per the cross-examination of
PW-1, he has not examined any one of his witness to show that he
obtained amount from pledging the Gold and from members of his
family but he has stated that there was an agreement taken
12 C.C.No.6894/2015
between the complainant and the accused as per Ex.D1 and also
admitted that he lodged the private complaint against this
accused and he denied that year of the cheque has been forged as
2014 and misused the alleged cheque in question . Except the
total denial of contention of accused, the complainant has not
examined any one of witness to corroborate evidence to speak
about his case etc..
12. 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 and submits
that accused obtained loan amount from the complainant and he
did not repay the cheques amount and hence, he is liable for
conviction. In support of his contention, he has produced certified
copy of private complaint in PCR No. 780/2009 filed by one
Krishna murty against this accused and also filed C C No
37830/2011 filed by one D.Krishna against this accused and
some of the persons have filed private complaint against the
accused for dishonoured of the cheque etc.. But these things are
not supported by the case of complainant to show that cheques
have been issued, the same are dishonoured due to "Funds
insufficient" etc..
13 C.C.No.6894/2015
13. 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 alleged
cheque in question has been misused by the complainant and
hence, this accused is entitled for acquittal.
14. On the basis of the aforesaid facts and circumstances of
the case coupled with the oral and documentary evidence
adduced by both the sides, it is clear that, the complainant failed
to prove the alleged guilt of the accused beyond all reasonable
doubt. The case of complainant create doubtful. 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 stand cancelled.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 14th day of December, 2015) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
14 C.C.No.6894/2015ANNEXURE Witnesses examined for the Complainant:
PW.1 : H N Chandru Witness examined for the accused:
DW-1 : Kudlu Ramakrishna DW 2 KCN Chandrashekar DW 3 B.N.Gangadhara. Later discarded.
List of Documents marked for the Complainant:
Ex.P1 to 3 : Copies of Cheques [ original cheques Sent to V ACCM Court).
Ex.P1a to 3c : Signature of the accused Ex.P4 to 6 : Endorsement Ex.P7 : Legal notice Ex.P8 : Postal receipt Ex.P9 : Postal acknowledgement Ex.P10 : Reply notice.
List of Documents marked for the accused:
Ex.D1 : Agreement. Ex.D2 Copy of FIR Ex.D3 Copy of PCR No. 3798/15 Ex.D4 Cheque book of ICICI Bank Ex.D5 Cheque book of National co-opbank Ex.D6 Cheque book of Corporation bank Ex.D7 Cheque book of IOB Ex.D8 Cheque book of
Sree Thyagaraja Co-op.bank Ex.D9 Cheque book of Vijaya bank XXII ACMM, Bangalore.15 C.C.No.6894/2015