Bangalore District Court
Sri.N.Ramachandraiah vs Sri Thimmegowda on 18 August, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 18th day of August, 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. 21230/2014..
Complainant : Sri.N.Ramachandraiah,
S/o late Nadakerappa,
Aged aboiut 58 years,
Resident of No.79/9, 2nd stage,
6th Cross, KHB colony,
Basaveshwaranagar,
Bangalore -79.
( By Sri Ravi B.Naik Asso. Adv.)
V/s.
Accused : Sri Thimmegowda,
S/o Venkatanarasappa,
Aged about 53 years,
Resident of No.142/2, 4th Cross,
Anjananagar, KEB Road,
Vishwaneedam Post,
Bangalore - 91.
(By Sri,N.Anjan Gowda, Adv.)
Date of Institution 01-08-2014.
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
2 C.C.No. 21230/2014
Final Order Accused is Convicted
Date of Order : 18.08.2015.
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 is a business man carrying business
and also running Education Institutions and he has got vast
extent of assets. One Mr. Jagadeesha G.P. is a close friend of
complainant, in the month of June, 2011 the accused
through Mr. Jagadesha G.P. approached the complainant
requesting for financial help as the accused was in dire need
of money for his domestic necessaries. By considering the
request of the his friend Jagadeesha and also the accused ,
the complainant had paid Rs.5,00,000/- by way of cash on
20-6-2011. At the time of availing the loan, the accused has
executed loan agreement dated 20-6-2011 and agreed to
return the said amount within 11 months from 20-6-2011
3 C.C.No. 21230/2014
and also agreed to pay interest @ 3% P.M.. Further in
addition to the said agreement, the accused also handed over
original document i.e., Possession certificate, affidavit and
G.P.A. in respect of his Site No. 147, Khatha No. 238 of
Machohalli, Dasanapura Hobli, Bangalore north taluk as a
additional security for the loan obtained by him. After
availing the loan, the accused had also given two signed
unfilled cheque No.263584 and 263585 drawn on
Corporation Bank , Anjananagara, Bangalore to the
complainant as a security agreeing that in the event of
accused failing to repay the loan within the stipulated period
of 11 months with interest, the complainant can initiate legal
proceedings against him and recover the amount by utilizing
the mentioned two cheques which were given as a security .
He requested the accused on several occasions to clear the
amount after completion of 11 months, but on one or the
other pretext the accused has postponed to repay the said
loan amount. Though the accused has agreed to pay the
interest @ 3% P.M., even for one month he has not paid the
interest to the complainant and all the requests and
4 C.C.No. 21230/2014
demands of the complainant did not given any fruitful result
to him in getting back the amount. Hence, the complainant
failed to recovery money from the accused , he approached
his friend Jagadeesh through whom the accused has availed
the loan . At this juncture, the accused told the complainant
that he has got sufficient amount in his bank account and
instructed the complainant to present the said cheque for
collection the same are honoured. As per the request of the
accused, the complainant presented the said two cheques for
collection, the same are dishonoured due to "Funds
insufficient" on 21/6/2014. Thereafterwards, the
complainant got issued legal notice to the accused on
26/6/2014 by RPAD, calling upon the accused to pay the
cheques amount. But the complainant advocate did not
receive the postal acknowledgement even after lapse of two
weeks. Therefore, the complainant has got issued one more
notice on 14-7-2014 through RPAD and speed post. The
notice sent by RPAD was duly served on the accused on 15-
7-2014. The notice sent by speed post has been refused by
the accused. However, accused has given evasive reply to the
5 C.C.No. 21230/2014
complainant advocate on 18/7/2014 and he has stated that
notice sent on 26/6/2014 by the complainant has also been
served on him. But he did not comply the terms of 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.P12 and
examined his friend as PW-2 Jagadeesha and this PW-1 and
PW- 2 have been fully cross examined by the accused
counsel and thus complainant closed his side evidence.
4. There afterwards, the case was posted for recording
statement of accused u/s. 313 of Cr.P.C. Accordingly, the
statement of accused has been recorded. 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 this
6 C.C.No. 21230/2014
DW-1 has been fully cross-examined by the complainant
counsel and thus closed his side defence evidence.
5. I have heard the arguments of both complainant and
accused counsels on merit. In support of the case of
complainant , he relied on the judgment rendered in
Crl.Appeal No.261-264/2002 on the file of Hon'ble Supreme
Court of India and hence, complainant counsel prays for
convicting 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
examined his friend PW-2 Jagadeesha, He too also supported
the case of complainant in his chief examination by way of
affidavit 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 cheques are
dishonoured as per the acknowledgement issued by the
bankers at Ex.P3 and Ex.P4. Ex.P5 is the ¸Á®zÀ PÀgÁgÀÄ ¥ÀvÀæ
alleged to be executed by the accused in favour of the
complainant on 20-6-2011 in which, he agreed to repay
7 C.C.No. 21230/2014
the loan amount with interest and identified the signature of
the complainant and accused as per Ex.P5(a) to Ex.P5(c ) and
as per this agreement, the complainant examined
Jagadeesha as PW-2. He too also identified the execution of
¸Á®zÀ PÀgÁgÀÄ ¥ÀvÀæ . Ex.P6 and Ex.P6(a) is the income tax returns
of the assessment year 2012-2013 . In Ex.P6(a), it is
mentioned that loan advanced Rs.Five lakhs to this accused
by name Thimmegowda. Ex.P7 is the G.P.A. alleged to be
executed by the accused on 23/5/2007 in favour of
S.Sharavanan and affidavit of the same day executed by the
accused in favour of S.Sharavanan. Ex.P10 is the copy of
legal notice. This notice does not contain the signature of the
complainant except his counsel. Ex.P11 is the postal
acknowledgement to show the legal notice was duly served to
the accused but he did not comply the terms of notice.
Ex.P12 is the reply notice issued by the accused through his
counsel and in his reply notice , admitted that complainant
had issued legal notice dated 26/6/2014 and 14/7/2014 . In
which, he contended that he borrowed a sum of
Rs.2,00,000/- from the accused and he had issued two
8 C.C.No. 21230/2014
blank signed cheques ie. alleged cheque in question as a
security alongwith the cheques mentioned in the notice.
Further stated that this accused has not borrowed
Rs.5,00,000/- from the complainant only borrowed
Rs.2,00,000/- and he had already paid along with the
interest within stipulated time and the same was
acknowledged by the complainant etc.. But the complainant
playing fraud on all such persons by misusing such blank
cheques by mentioning the amount as per his whims and
fancies. Further stated that the entire amount was returned
back to the complainant. He behaved like a very good well
wisher to the accused and assured that he will return the
cheques in question but by misusing the alleged cheques
filed this case. Hence, accused prays for dropping of any
proceedings against him in the interest of justice and equity.
Against to the contents of reply notice, the complainant has
not issued any rejoinder or counter by admitting or denying
the facts and circumstances stated in the reply notice. As per
the contents of the reply notice, in order to show accused has
paid the entire principal with interest towards the loan
9 C.C.No. 21230/2014
borrowed from the complainant amounting to Rs.2,00,000/-
he has not produced any documentary evidence.
7. In support of the case of accused, he adduced his
oral evidence as DW-1 on oath and contended that as per the
terms of reply notice and in his cross examination, he denied
the entire case of complainant except he admitted that he
knows the complainant through his friend Jagadeesha and
also admitting that he delivered the property document to the
complainant at the time of obtaining loan amount of Rs.
2,00,000/- and he admitted that as per agreement, he agreed
to present the alleged cheque in question for collection and at
the time of obtaining loan amount of Rs. 2 lakhs in the
month of Dec.2013 this PW-2 was also present etc.. Except
the total denial of contention of complainant, the accused
has not brought any cogent and convincing evidence to
disprove the case of complainant.
8. In the cross-examination of PW 1 and 2, the accused
counsel elicited as per the contents of reply notice , same is
denied by the complainant. Under these circumstances, the
complainant had proved the alleged guilt of the accused
10 C.C.No. 21230/2014
beyond all reasonable doubt . Except total denial of the case
of complainant, accused has not given any rebuttal evidence
to the case of complainant. Hence, complainant is entitled to
recover cheque amount alongwith simple interest @ 6% P.A.
by way of compensation from the accused. Hence, accused is
liable for conviction. Accordingly, I pass the following:
ORDER
Acting u/s 265 of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs.5000/- (Five Thousand only). In default of payment of fine amount, the accused shall undergo SI for a period of Three months .
The complainant was awarded compensation of Rs.7,25,000/-(Seven lakhs twenty five thousand ) with simple interest at the rate of 6% p.a. from the date of the cheque till realization of the same from the accused and the same shall be paid to him within the period of 30 days from the date of this order.
11 C.C.No. 21230/2014In default of payment of this compensation amount, the accused shall undergo simple imprisonment for One year.
Office is directed to furnish the copy of this Judgment at free of cost to the accused.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 18th day of August, 2015) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
ANNEXURE Witnesses examined for the Complainant:
PW.1 : N. Ramachandraiah PW.2 : Jagadeesha G.P.
Witness examined for the accused:
DW-1 : Thimmegowda List of Documents marked for the Complainant:
Ex.P1 & P2 : Cheques
Ex.P1a& P2a : Signature of the accused
Ex.P3 & 4 : Endorsements
Ex.P5 : ¸Á®zÀ RgÁgÀÄ ¥ÀvÀæ
Ex.P6 : IT Returns
Ex.P7 : GPA
12 C.C.No. 21230/2014
Ex.P8 : Possession Certificate
Ex.P9 : Affidavit
Ex.P10 Legal Notice
Ex.P11 Postal Acknowledgement
Ex.P12 Reply Notice dated:18.07.2014
List of Documents marked for the accused:
Nil XXII ACMM, Bangalore.