Bangalore District Court
Mr.Prakash vs Mr. Kiran B.T on 16 February, 2016
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 16TH day of February, 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.32623/2014
Complainant : Mr.PRAKASH,
Aged 41 years,
Son of Damodar,
Residing at No. 238,
1st floor, 2nd Main,
ISRO Layout,
Bangalore - 560 078.
(By Sri.Nizam abbas .Adv.)
V/s.
Accused : Mr. KIRAN B.T.
Aged about 35 years,
Son of Thmmayappa,
R/at No. 1413, Hameed Manzil,
Tippu Road, 16th Cross,
Kumaraswamy Layout, 1st stage,
Bangalore - 560 078.
(By Sri M.Marilinga,.Adv.)
Date of Institution 26-09-2014.
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 : 16.02.2016.
2 C.C.No.32623/2014
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 and accused are known to each other for
the last few years . As such accused borrowed around sum of
Rs.14,00,000/- from the complainant on different occasions from
12-01-2012 by citing his various problems and difficulties by
promising to repay the same within few months. The complainant
has given a sum of Rs.14,00,000/- to the accused by cash and
number of cheques , accused has executed some documents .
Even after one year, the accused did not repaid the amount and
started to evade the complainant for one or the other reason .
Towards the discharge of liability , the accused issued cheque
bearing No. 919839 for Rs.9,80,000/- dated 09-07-2014 of State
Bank of Mysore, Jayanagar branch, Bangalore in favour of the
complainant and assuring the complainant that the said cheque
will be honoured on its presentation to the bank. The
complainant presented the said cheque through his bankers State
3 C.C.No.32623/2014
Bank of Mysore, Jayanagar branch Bangalore for encashment.
But the said cheque was returned dishonoured for the reasons
ACCOUNT CLOSED with an endorsement dated 14-7-2014.
Thereafterwards, the complainant got issued Demand notice on
11-8-2014 to the accused, calling upon the accused to pay the
cheque amount . The notice sent by RPAD was served to the
accused. Inspite of receipt of legal notice, he 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
accordance with law and to award suitable compensation, 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 examined two
witnesses as PWs. 2 and 3. These PWs. 2 and 3 are not
participated for facing the cross-examination . Hence, the
evidence of PW-2 and 3 have been discarded but PW-1 has been
fully cross-examined by the accused counsel and thus
complainant closed his side evidence.
4 C.C.No.32623/2014
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, he submits no defence evidence and
thus closed his side defence evidence if any.
5. I have heard the arguments of both complainant and
accused counsel on merit. In support of the case of accused, the
Ln.counsel for accused produced the police endorsement to show
the complainant filed complaint against the accused. Hence,
prays for acquittal of the accused in accordance with law.
6. 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 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. Ex.P5 is the letter issued by the Post Master to show that
5 C.C.No.32623/2014
the article was delivered. As per the case of complainant, inspite
of service of legal notice, the accused did not choose to reply or
comply the notice etc.. Further got marked Ex.P6 is the On
Demand Promissory Note with consideration receipt and
identified the signature of the accused as per Ex.P6(a) and
Ex.P6(b). In support of the case of complainant in order to prove
the execution of Ex.P6 documentary evidence , the complainant
examined PW-2 and 3. But both of them did not participate for
cross-examination and hence, their evidence has been discarded.
As such, the complainant failed to prove the execution of Ex.P6
which was executed by the accused in the presence of witnesses
etc.. Ex.P7 is the Agreement alleged to be executed by the accused
on 23-7-2013 for construction of the house of accused , he
obtained loan amount from the complainant as alleged . But as
per the Ex.P7 this agreement executed in the presence of
witnesses but none of the witnesses have examined to support the
case of complainant. Ex.P8 is the Diary extract of details of the
amount taken between the complainant and the accused. Ex.P9
is the copy of Corporation bank pass book in which, in the name
of Hemalatha on 01-03-2012 an amount of Rs.1,00,000/- is
debited as per Ex.P9(a). Ex.P10 is the Xerox copy of pass book of
SBI stands in the name of complainant to show that an amount of
6 C.C.No.32623/2014
Rs.One lakh was debited to the account of complainant. But
these things are not stated by the complainant in his complaint or
in his chief examination. Hence, the case of complainant prima
facie create doubtful, whether he really lent huge amount of Rs.14
Lakhs to the accused and for repayment of the said amount, the
accused issued cheque in question , the same was dishonoured
not due to "Funds insufficient" but due to " Account Closed ".
7. The accused has denied the entire case of complainant .
In support of his denial, he did not choose to lead his side defence
evidence but he has submitted that his side no defence evidence.
However, accused counsel cross-examined the PW-1. In the
cross-examination , at page No. 5 he admitted that, at the time of
lending the loan amount to this accused, he did not took any
receipt for having paid the amount and also he has not
maintained any books of account regarding payment of loan
amount. Further from 12-1-2012 to 23-7-2013 he totally paid
Rs.14 lakhs to this accused on eight occasions . But these things
are not stated in his complaint . Further he admitted that at
page No.8 on white paper , there is no initial of this accused
"B.T." and also admitted that there is no full address of this
7 C.C.No.32623/2014
accused on the alleged diary with respect of Ex.P8 is with him .
But he has not produced the entire diary to support his case. In
the further cross-examination of PW-1, at page No.8 he admitted
that, an amount advanced to this accused is not shown in his
Income Tax Returns and also admitted that as per Ex.P9 pass
book in his bank account balance is not crossed more than
Rs.1,23,000/- and as per Ex.P10 pass book, there is an entry on
18-1-2013 through cheque this complainant had paid
Rs.1,00,000/- in the name of accused wife and he denied that the
wife of accused obtained loan of Rs.2,00,000/- from him and
misusing the alleged cheque in question belongs to this accused ,
he filed this case etc.. Further he admitted that, at Ex.P1 cheque
the date "9" is over lapped. Further he admitted that as per Ex.P6
On demand promissory note was written by one Sahana and he
has no capacity to pay huge amount of Rs.Nine lakhs to this
accused etc.. Except the total denial of contention of accused, the
complainant has not produced any cogent and convincing
evidence to show that the accused has committed the offence
punishable u/s.138 of NI Act. Hence, the case of complainant
create doubtful. The benefit of doubt goes to the accused and
accused is entitled for acquittal. Accordingly, I pass the following:
8 C.C.No.32623/2014
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 16th day of February, 2016) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city .
ANNEXURE Witnesses examined for the Complainant:
PW.1 : Prakash PW.2 Sahana shekar ( Discarded) PW-3 Chandrashekar (Discarded)
Witness examined for the accused:
nil :
List of Documents marked for the Complainant:
Ex.P1 : Cheque
Ex.P1a : Signature of the accused
9 C.C.No.32623/2014
Ex.P2 : Endorsement
Ex.P3 : Legal notice
Ex.P4 : Postal receipt
Ex.P5 : Postal details
Ex.P6 : On demand pronote with
Consideration Receipt.
Ex.P6a, Signature Ex.P7 Agreement. Ex.P7a signature Ex.P8 Diary extract. Ex.P9 Copy of Corporation Bank passbook Ex.P9a Relevant entry Ex.P10 Copy of SBI Bank passbook Ex.P10a Relevant entry
List of Documents marked for the accused:
Nil :
XXII ACMM, Bangalore.