Bangalore District Court
Smt. B.Kumari vs Mr.Santhosh Kumar P.Jain on 8 June, 2015
IN THE COURT OF THE XXII ADDL.CHIEF
METROPOLITON MAGISTRATE, BANGALORE CITY
Dated this the 8th day of June , 2015
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C No. 18500/2012
Complainant : Smt. B.Kumari,
Wife of V.Boopalan,
Aged about 45 years,
R/at No.37/7, 15th Cross,
Bhuvaneshwari Nagar,
Kempapuram Agrahara,
Bangalore -560 023..
(By Sri.Dharmapal Adv.)
Vs.
Accused : Mr.Santhosh Kumar P.Jain,
Son of Pukraj ,
Aged about 26 years,
R/at No.1/2, 16th Cross, 5th
Main,,
Bhuvaneshwari Nagar,
Kempapuram Agrahara,
Bangalore -560 023..
(By Sri Jayarama, Adv.)
Date of Institution :04-07-2012.
Offence complained of :U/s 138 of N.I.Act.
2 C.C.No. 18500/2012
Plea of the accused :Pleaded not guilty.
Final Order :Accused is Acquitted.
Date of Order :08-06-2015.
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
2. As per Ex.P7 complaint, the complainant has contended
that complainant and her husband are the absolute owners of the
house bearing No.BDA No.2046 measuring 30X 38 feet situated at
30th Division of Bangalore City Corporation, Ward No.34,
Vijayanagar, 2nd stage Railway Pipe Line , Bangalore city. That on
23-2-2009, the accused and his relative one Mr.B.Dinesh Kumar
had agreed to purchase the said house property for sale
consideration of Rs.44 Lakhs and executed Sale Agreement on the
same day with advance of Rs.Five Lakhs by fixing four months time
for consideration. But the accused and another did not comeforward
for registration within the said period they came again on 23-03-
2010 pleaded that they could not arrange amount for sale
consideration and after bargaining they executed another fresh
agreement for sale consideration of Rs.42 lakhs on the same day by
3 C.C.No. 18500/2012
paying total advance of Rs.11,00,000/- and fixed three months for
registration. The complainant and her husband told them strictly
that the advance amount would be forfeited if they do not pay the
balance sale consideration within the stipulated time and got the
sale deed registered. Thereafterwards, few months ago during month
of November, 2011 the accused had approached and requested the
complainant and her husband saying that he need sum of Rs.Five
lakhs to full fill his commitments and assured the complainant and
her husband that he will return the amount within a short period
and also he convinced and assured the complainant and her
husband that he alone will pay a sum of Rs.2 lakh which was
reduced in the second Sale Agreement. Hence on that aspiration the
complainant and her husband had arranged a sum of Rs. 5 lakhs
and paid to the accused as hand loan and on the other hand, for
repayment of the said amount the accused had issued a post dated
cheque bearing No.259941 dated 20-2-2012 for sum of Rs.Five
lakhs drawn on HDFC Bank, Vijayanagar Branch, Bangalore
Thereafter some time Mr.Pukraj father of accused had come to the
house of complainant and created a big scene by shouting at her
and her husband saying that his son, the accused had borrowed a
sum of Rs.5 lakhs from him as hand loan during the time of
executing the above Sale Agreement with her and he did not return
the said amount and the very same amount was given to the
4 C.C.No. 18500/2012
complainant as advance for which, he blamed the complainant and
her husband. Further he had threatened the complainant and her
husband saying that he will lodge complaint against them if the
amount is not returned to him. Hence, under the threat, the father
of accused had collected a sum of Rs.Three lakhs from the
complainant and her husband. Thereafterwards, the accused and
Dinesh kumar have issued a notice dated 18-4-2012 to the
complainant and her husband , calling upon them to execute Sale
Agreement within 15 days from the date of receipt of notice , failing
which, they are going to initiate a suit for specific performance. As
per the instruction and assurance given by the accused , the
complainant had presented the said cheque for collection through
Syndicate Bank, Vijaya nagar Branch, Bangalore , but the said
cheque came to be returned unpaid for the reasons " Account
closed" as per the bank Memo dated 12-5-2012. The complainant
got issued a notice dated 26-5-2012 to the accused intimating about
the dishonour of the cheque and calling upon him to arrange the
said cheque amount. The said notice was duly served on him on 28-
5-2012 but instead of arranging the said cheque amount, he had
issued an untenable reply to the complainant and denied the
payment and hence, the complainant left with no option, he
constrained to initiate criminal action against the accused for the
offence punishable u/s.138 of NI Act and punish the accused in
5 C.C.No. 18500/2012
accordance with law by awarding maximum compensation to the
complainant as per Sec.357 of Cr.P.C. in the interest of justice and
equity.
3.. The accused contest this case . In order to prove the case
of complainant, she adduced her oral evidence as PW-1 by way of
affidavit and got marked Ex.P1 to Ex.P7 and this PW-1 has been
fully cross examined by the accused counsel and thus complainant
closed her 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 defence evidence as DW-1 on Oath
and got marked Ex.D3 to Ex.D6 and at time of cross-examination of
PW-1 got marked Ex.D1 and 2. This DW-1 has been fully cross-
examined by the complainant counsel and thus accused also closed
his side defence evidence.
5. I have heard the arguments of both the counsels of
complainant and accused on merit. In support of the case of
complainant, he produced certified copy of the ordersheet in
O.S.No.356/2014 Suit for Specific Performance filed by the accused
and the plaint and written statement of the parties in the case.
6 C.C.No. 18500/2012
6. In order to prove the case of complainant, the complainant
adduced her oral evidence as PW-1 filed by way of affidavit. In
which, she 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 is
dishonoured due to "Account closed". Ex.P3 is the copy of legal
notice. This notice does not contain the signature of the complainant
except her counsel , Ex.P4 is the RPAD postal receipt, Ex.P5 is the
postal acknowledgement . After receipt of the legal notice, accused
and his counsel issued reply notice as per Ex.P6 . In which, he
contended the story which complainant has narrated cock and bull
story and he denied the entire case of complainant parawise of the
notice and specifically contended that at para-10 of reply notice
stating that, the accused car was stolen and in the said Car he had
kept original cheque and other document. In this regard, he had
lodged complaint to the police. The police have registered crime
No.168/2010 for the offence punishable u/s.448, 341, 392, 506(B)
r.w.s. 34 of IPC. Immediately after complaint accused had issued a
letter for closure of account. The cheque alleged in the notice is the
series of the same cheque book which was lost. Hence, it clearly go
7 C.C.No. 18500/2012
to show that the complainant also involved in the above said crime
and this accused will take suitable action against the complainant
etc.. 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 reply notice . Ex.P7 is the complaint under
dispute.
7. The accused has denied the entire case of complainant . In
support of his denial, he examined as DW-1 on Oath. In which, he
has stated that this complainant was introduced to him during the
year, 2009 . On that day, there was a talk taken between them for
purchase of site and agreed to purchase site for Rs.44 lakhs. The
said agreement was taken on 23-2-2009 . Accordingly, he produced
Ex.D3 the original Sale Agreement thereafterwards, on 16-4-2009
the complainant obtained Rs.One lakh towards advance amount ,
same will be paid to the bank etc.. and there is an endorsement on
the agreement as per Ex.D3(a) but as per the said Sale Agreement
the complainant did not execute the Sale Agreement in favour of the
accused but on 23-3-2010 they have executed new Sale Agreement .
Accordingly, produced the certified copy of the said Sale Agreement
as Ex.D4 and the original agreement was produced in the civil suit
and through this Sale Agreement they once again took advance
amount of Rs.Five lakhs. For that, they made a shara on the last
page of the agreement as per Ex.D4(a) but as per Sale Agreement ,
8 C.C.No. 18500/2012
they have not executed the registered sale deed. Hence, on 18-4-
2012 he issued a legal notice calling upon the complainant to
execute the registered sale deed as per their undertaking given at
Ex.D4 as Ex.D4(a) . But the complainant got issued a legal notice
for dishonour of cheque, for that, he has given suitable reply as per
Ex.P6 except the said Sale Agreement, there was no money
transaction taken between the complainant and accused. Further
stated that on 19-06-2010 one Mahaveer and others have stolen his
Car which was standing in front of his shop at K.P.Agrahara. For
that, he filed private complaint before the Court as per Ex.D5 . The
Court has referred the complaint to the K.P.Agrahara police for that,
the police have registered FIR as per Ex.D6 and in the Car, he had
kept jewellary Catalog , HDFC bank cheque book and other
documents. Ex.P1 cheque is not issued to this complainant and the
contents of the cheque and signature of the accused are not belongs
to him . Hence, he prays for acquittal from this case. Etc..
8. At the time of cross-examination of PW-1, the accused
counsel got marked Ex.D.1 is the HDFC Bank letter issued on 25-8-
2014, in which, they mentioned " This is to certify that Mr.Santhosh
Kumar P.Jain was holding Savings Account with HDFC Bank bearing
9 C.C.No. 18500/2012
A/c.No.03121370001902 in Vijayanagar, Bangalore branch and the
same stand closed in our system effective 22.08.2006".
9. On the basis of the aforesaid letter, the case of complainant
creates doubtful whether the alleged cheque in question has been
issued by the accused for discharge of legal liability. Ex.D2 is the
copy of legal notice issued on 18-4-2012 to the husband of
complainant and the complainant in which, calling upon them to
execute the registered sale deed with respect to the property stated
in the complaint. But inspite of it, the complainant and her
husband did not comeforward to execute the registered sale deed in
their favour etc..
10. On the basis of the evidence of DW-1 coupled with
documentary evidence marked as Ex.D1 to Ex.D6 are clearly go to
show that the alleged cheque in question might have been misused
by this complainant . In this regard, the complainant counsel cross-
examined DW-1 . In the cross-examination , he tried to elicited that
alleged cheque has been issued to this complainant for discharge of
legal liability but he admitted that there was an agreement of sale
taken between the complainant and accused with respect to the
property stated in the complaint. The accused has denied the
entire contents of the cheque along with the signature found on the
10 C.C.No. 18500/2012
cheque . In order to ascertain whether the signature found on Ex.P1
cheque belongs to accused or not ? the complainant filed
application u/s.243(2) of Cr.P.C. R/W/S. 45 and 417 Of Indian
Evidence Act , for the appointment of Handwriting Expert to
ascertain the disputed signature on the cheque with the admitted
signature of the accused. After contest, the said application was
rejected with the observation that, in order to ascertain the
signature found on the cheque , the complainant can very well
demonstrate before this court along with admitted signature to show
these signatures are one and the same. Further , it is observed that
the complainant can call the specimen signature of the accused
from the concerned bankers for comparison of the signature etc..
Further it is mentioned that, the Court has got ample power u/s.73
of Indian Evidence Act to compare the disputed signature along with
admitted signature . In view of the aforesaid observation made by
this court, the complainant has not called the specimen signature
from the concerned bankers . But at the time of addressing the
arguments shown the signature on Ex.P1 cheque and the signature
found on the other records are one and the same.
11. On the basis of the aforesaid facts and circumstances of
the case, the complainant failed to prove the alleged guilt of the
accused beyond all reasonable doubt with respect to cheque is old
one, for that, at the time of cross-examination of PW-1, it is elicited
11 C.C.No. 18500/2012
that at page No.7 of the deposition, the relevant portion is in
Kannada which reads thus:
ZÉQÌ£À ªÉiðgÀĪÀ LzÀÄ JA§ CAQAiÀÄ£ÀÄß C½¹zÉ JAzÀgÉ ¸ÁQëAiÀÄÄ
ZÉPÀÌ£ÀÄß PÉÆlÄÖ vÀÄA¨Á ¢£ÀªÁzÀ PÁgÀt C½¹zÉ JAzÀÄ ºÉüÀÄvÁÛgÀÉ .
These facts are clearly go to show that alleged cheque in
question is old cheque , same has been misused by the complainant
and in the cross-examination of PW-1, it is elicited that at Ex.P3
legal notice, she has not mentioned on what date, the accused took
the loan amount and in how many days he has repaid the said
amount etc.. But she admitted that the Agreement of Sale has been
executed by herself and her husband in favour of the accused etc..
Further it is elicited that at Ex.P-1 cheque her name mentioned as
KUMARI instead of B. KUMARI . She denied that alleged cheque is
not issued for discharge of legal liability. With respect to loan
amount advanced to this accused, the accused counsel elicited that
the said amount comes to this complainant out of Rs.Two lakhs
borrowed from her uncle but in support of her case, she has not
examined her uncle to show that she borrowed the said amount
from her uncle and she denied that she has not shown in the
income tax returns about the loan amount given to the accused but
he has stated that her husband knows these things. But she denied
12 C.C.No. 18500/2012
that alleged cheque in question issued as per the shara on the
agreement etc.. But she denied that alleged cheque in question has
not been issued for discharge of legal liability.
12. On the basis of the aforesaid facts and circumstances of
the case, in order to prove the case of complainant , complainant
has not produced any documentary evidence to show she had got so
much of amount with her and she has not adduced corroborative
evidence to prove the alleged guilt of the accused. On the other
hand, the accused has given rebuttal evidence to the case of
complainant by leading his side defence evidence and also by
producing the documentary evidence. Under such circumstances,
the case of complainant creates doubtful. Hence, the benefit of
doubt goes to the accused. . The 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 13 C.C.No. 18500/2012 by her, corrected and then pronounced by me in the open court on this the 8th day of June, 2015) (NAGARAJEGOWDA.D) XXII ACMM : Bangalore city.
ANNEXURE Witnesses examined for the Complainant:
PW.1 Smt.B.Kumari Witness examined for the accused:
DW-1 Santhoshkumar P.Jain List of Documents marked for the Complainant:
Ex.P1 Cheque Ex.P1(a) Signature of accused Ex.P2 Endorsement Ex.P3 Copy of legal notice Ex.P4 Postal receipt Ex.P5 Acknowledgement Ex.P6 Reply notice dt 2-6-12.
Ex.P7 complaint List of Documents marked for the accused:
Ex.D1 HDFC Bank letter
Ex.D2 Legal notice dtd. 18-4-2012
Ex.D3 Sale Agreement(original)
Ex.D4 copy in suit O.S.No.356/14
Ex.D5 PCR No.24326/2010 complaint
Ex.D6 copy of FIR
XXII ACMM, Bangalore.
14 C.C.No. 18500/2012