Bangalore District Court
Sri. H. Jagadish vs Sri. Narayanappa on 8 December, 2015
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 8th day of December 2015.
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 6610/2014
Complainant: Sri. H. Jagadish
No.154/20
13th B Main, Gokul 1st Stage
1st Phase, Mattikere
Bangalore-560 054.
( By H.S. Kalyankumar. Adv)
- Vs -
Accused: Sri. Narayanappa
Head Master
R/at Sri Veerabhadreshwar Nilaya
Keshava Nagar, Sira
Sira Taluk,
Tumkur District.
(By Y.S.Shiva Prasad .Adv)
Offence U/s138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty.
Final order Acquitted
******
2 C.C.6610/2014
JUDGMENT
1. The Complainant filed this Complaint against the accused U/s.200 of Cr.PC for the offence punishable U/s 138 of N.I.Act.
2. The brief facts of the case of the complainant are; that, both of them well known to each other about over decades and the accused in need of the money for Rs.6,00,000/- in the month of October-2012 expressing the accused for his domestic problem i.e., financial difficulties for construction of house and for children education and he will agreed repay the same at the earliest. Accordingly, the complainant has paid said loan amount to the accused and thereafter inspite of several demand and request made by the complainant for repayment of the amount to the accused, but the accused has postponed the same on one or the other pretext. After several request and demands made by the complainant, the accused issued cheque bearing No.924202, for Rs.6,00,000/- dated: 05.06.2013 drawn on State Bank of Mysore, Sira Branch in favour of the complainant. When the complainant has presented the said cheque for encashment through his banker i.e., State Bank of Mysore, Mattikere Branch, Bangalore. But, it was returned with an endorsement as Funds Insufficient", the complainant said fact has been informed to the accused, but the accused deliberately a voided to respond the same, then the complainant has got issued legal notice dated:24.06.2013 by RPAD and the said notice was duly served to the accused on 26.06.2013. Inspite of service of the legal notice neither he gave any reply nor repaid the said amount. Thereafter, the complainant had constrained to file a complaint against the accused for the 3 C.C.6610/2014 offence punishable under Section 138 of Negotiable Instrument which is well within time.
3. After taking the cognizance of the complaint, on being served the summons, the accused appeared before court through his counsel and got released on bail. The substance of accusation was read over to the accused. Accused pleaded not guilty, claimed to be tried.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 14 documents marked as Ex.P.1 to Ex.P.14, The statement of the accused U/s.313 Cr.PC., was recorded. He denied the incriminating statements against his and the accused got himself examined as DW-1 and got 28 documents marked as Ex.D1 and Ex.D28 and in support of his case his wife examined herself as DW-2 and closed his side evidence.
(As per the judgment passed by their lordship in Cr.R.P.No.1585/2009 on 12.03.2013 of Hon'ble High Court, Bangaluru conducting of denova trial does not arises)
5. Heard arguments from both Counsel for complainant and accused.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued cheque bearing No.924202 for Rs.6,00,000/- dated:
05.06.2013, drawn on State Bank of India, Sira Branch, Sira, towards the discharge of legally enforceable debt due to him and 4 C.C.6610/2014 when the cheque was presented for encashment, it came to be returned as ""Funds Insufficient"" Thereby, the accused has committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Negative
Point No.2 : As per final order for the
following;
REASONS
8. POINT No.1 : In this complaint, the complainant
specifically averred that, both of them well known to each other about over decades and the accused in need of the money for Rs.6,00,000/- in the month of October-2012 expressing the accused for his domestic problem i.e., financial difficulties for construction of house and for children education and he will agreed repay the same at the earliest. Accordingly, the complainant has paid said loan amount to the accused and thereafter inspite of several demand and request made by the complainant for repayment of the amount to the accused, but the accused has postponed the same on one or the other pretext. After several request and demands made by the complainant, the accused issued cheque bearing No.924202, for Rs.6,00,000/- dated: 05.06.2013 drawn on State Bank of Mysore, Sira Branch in favour of the complainant. When the complainant has presented the said cheque for encashment through his banker i.e., State Bank of Mysore, Mattikere Branch, Bangalore. But, it was returned with an endorsement 5 C.C.6610/2014 as Funds Insufficient", the complainant said fact has been informed to the accused, but the accused deliberately a voided to respond the same, then the complainant has got issued legal notice dated:24.06.2013 by RPAD and the said notice was duly served to the accused on 26.06.2013. Inspite of service of the legal notice neither he gave any reply nor repaid the said amount. Thereafter, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of Negotiable Instrument which is well within time.
9. On perusal of the evidence of PW-1 he has deposed in his chief-examination as per the averments made in the complaint and he has got marked documents like, the original cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), the bank endorsement which is marked as Ex.P2, Office of the copy of legal notice which is marked as Ex.P3, Two Postal acknowledgement which are marked as Ex.P4 & 5, Five RTC's which are marked as Ex.P6 to Ex.P10, four counterfoils of bank challans for having remitted the amount to the bank account which are marked as Ex.P11 to Ex.P14 respectively.
10. The complainant in his cross-examination, he has deposed that, originally he was an agriculturist in Soraba Taluk, now he has working as a personal assistant to the present Excise Minister at Karnataka. It is true that, he was studied up-to second PUC at his native place. It is true that, the accused wife is also studied in the same school and she is every much known to him. It is true that, the accused was working as the Head Master in the native place of the complainant village, 6 C.C.6610/2014 in the month of October-2012. He had advanced the loan to the accused, on the date of advanced the loan to the accused, he had not taken any document or cheque in question from the accused. But, the amount was paid to the accused with trust. It is true that, he has not explained his source of income in the complaint or legal notice, the accused has borrowed the loan for his personal purpose and his children education. He was not aware about the construction of the house by the accused in the year 1998 at Sira by raising loan from DHFL Vysya Housing Finance. The accused had two children, he was not aware if the son of the accused had completed his education in the year 2008. It is true that, as per the Regulation of RBI in the month of April2013 and onwards, any cheque should be presented for encashment within a period of three months from the date of its issue. It is true that, the cheque Ex.P1 does not bear the sentence 'it is valid for three months'. He denied the suggestion that, the cheque at Ex.P1 belongs to prior to the year 2010 and it is taken from his wife in the year 2009 for collateral security. It may be true that, the cheque bearing No.924209 of the accused was passed on 09.11.2011. He denied the suggestion that, in view of which the cheque in question must have been issued prior to 2009.
11. It is true that, the payee name, amount details and the date written on the cheque in different ink with different handwriting from that of the signature at Ex.P1(a). He did not know if the accused was met with on road accident. In the year 2007-08, the wife of the accused had borrowed hand loan of Rs.3,00,000/- from him and she was repaid the same in the year 2009. It is true that, his account in State Bank of Mysore, 7 C.C.6610/2014 Mathikere Branch bearing No.54055265292. He denied the suggestion that, the wife of the accused having borrowed Rs.1,00,000/- loan from him and she had repaid the same by way of remittance to his bank account on different dates. He denied the suggestion that, he has taken the cheque from his wife at the time of given hand loan to her. He denied the suggestion that, he has not satisfied with cheque given by the wife of the accused along with cheque in question it has been given by wife of the accused for better security. He denied the suggestion that, one G.Manjunath from Chandra Layout is his own friend. He denied the suggestion that, he has also managed to file similar complaint, through said his friend G.Manjunath agaisnt the wife of the accused based on the cheque given by her. He denied the suggestion that, the present complaint filed by him based on the cheque pertaining to time barred debt. He denied the suggestion that, the cheque in question was not issued by the accused by discharge of any existing legal liability or debt. He was an agricultural income tax assessee since 2007. But, he did not produced documents before this Court in this regard and the amount in question was not reflected in Income Tax returns of the relevant year.
12. Further, chief-examination with respect to source of income he has produced five RTC's which are marked as Ex.P6 to Ex.P10 and four counterfoil of bank challans for having remitted the amount to the bank account of DW-2 and her daughter Sangeetha marks card which are marked as Ex.P11 to Ex.P14. But, in his further cross, he deposed that, he has not stated nothing about existing Ex.P6 to 10 in the legal notice issued by through his advocate, in his legal notice or in his 8 C.C.6610/2014 complaint or in his earlier chief-examination. It is true that, the Ex.P6 to Ex.P10 are RTC's which have been given to the bank for obtaining loan by way of mortgage. Further, he has not at all deposed that, with respect to whether Ex.P6 to Ex.P10 are ancestral or his self-acquired property and also so he has not produced any document in respect of his earlier chief- examination, whether the said RTC have been mortgaged for have obtaining bank loan of Rs.6,00,000/-.
13. On perusal of the said RTC's i.e.,Ex.P6 to 10 it is crystal clear that, those RTC are mortgaged for obtaining loan in the year 2012-13 and 2013-14 on prior to that also Ex.P9 and Ex.P10 were also mortgaged in the 2006-07. Therefore, it will clearly ghost to show that, he has mortgaged the said property for obtaining loan for his agricultural purpose, the question of source of income for advancement of the loan to the accused does not substantiate for borrowing the loan from the bank. The RTC's are used for advancement of loan to the accused in question does not arise. Hence, the said RTC are not helpful to the case in question, so also the accused bank challan Ex.P11, Ex.P12 and Ex.P14 which are disclose that, he has deposed that, the amount in the bank account of the wife of the accused in the year 2009 and also Ex.P13 is amount deposited in the account of the daughter of the accused in the year 2009. Whereas, as per the averments made in the complaint, evidence of the complainant, he has advanced to the loan of Rs.6,00,000/- in the year-2012, thereby, the said Ex.P11 to Ex.P14 are not substantiate to prove the advanced made by the complainant to the accused account.
9 C.C.6610/201414. On perusal of the evidence of DW-1 he has deposed in his chief-examination he has got marked documents like, Two letters dated: 02.06.2010 and 05.05.2010 issued by the DHFL Vysya Housing Finance which are marked as Ex.D1 and Ex.D2, another letter of the same bank which is marked as Ex.D3, eight counterfoils of the bank challans which are marked as Ex.D4 to Ex.D11 respectively, PCR No.22844/2013 in 16th ACMM, Bengaluru the certified copy of the order sheet and complaint which are marked as Ex.D12 and 13 respectively, the true copy of the bank statement of his account which is marked as Ex.D14, the true copy of the bank statement of his wife's account which is marked as Ex.D15, four certified copy of marks card of his son Santhosh T.N. pertaining to B.Sc., Nursing course which are marked as Ex.D16 to Ex.D19, nine certified copy of marks card of his daughter Sangeetha T.N. which are marked as Ex.D20 to Ex.D28 respectively.
15. The DW-1 in his chief he has deposed that, he was working as a Government school teacher for the last 4 years at Sakshihali, the complainant of this case and his wife were school classmate, in that way he came to know about the complainant. His son T.N.Santhosh has completed B.Sc, Nursing in the year 2008 and he was working as a Lecturer at Rajiv Gandhi College of Nursing, Hassan in the year 2000. He had constructed his residential house at Sira by raising the loan of Rs.3,50,000/- from DHFL Vysya Bank, Malleswaram Branch, Bengaluru and he has already repaid the said loan before the month of May-2010 and to that fact he has produced two letters dated: 02.06.2010 and 05.05.2010 issued by the DHFL Vysya 10 C.C.6610/2014 Housing Finance, he had repaid the said housing loan and closed the account and they are marked as Ex.D1 and Ex.D2. He has produced another letter of the same bank to show that, he has got released the loan documents after repayment of the said loan which is marked as Ex.D3. Further, he has deposed that, in the month of July-2001 he was met with an road accident and he has taken medical treatment in K.R.Hospital, Bengaluru. It has been was told by his wife that, when he was in the hospital his wife had borrowed a sum of Rs.1,00,000/- from the complainant of this case, at that time she had given her blank signed cheque for the purpose of guarantee to the complainant. After taking treatment he has attended his school, at that time the complainant has also taken his signed blank cheque from her for similar purpose. He has signed blank cheque was given to his wife with further instruction to draw the salary amount from bank on his account and when he was contacted the complainant through mobile seeking reasons for his taking signed blank cheque. He assured that, no problem would arise if the cheque is retained with him as if it was taken for the purpose of guarantee. Further, his wife told him that, she has repaid the said borrowed amount by way of remitting the monthly installment to the account of the complainant during 2009-10, in this regard he had produced eight counterfoils of the bank challans which are marked as Ex.D4 to Ex.D11 respectively. In the year 2013 the complainant has sent legal notice to him as if he had borrowed loan of Rs.6,00,000/- from him and given his cheque to him and so also similar notice was sent to his wife by the complainant through one G.Manjunath for Rs.4,00,000/- and subsequently, 11 C.C.6610/2014 the said Manjunatha had filed complaint PCR No.22844/2013 against his wife and same was dismissed by the Hon'ble XVI ACMM., Bengalauru, the certified copy of the order sheet and the complaint are produced they are marked as Ex.D12 and 13 respectively. He has not borrowed the loan in question from the complainant nor given the cheque for its repayment as alleged in the complaint, he was not liable to pay the amount in question to the complainant. He has already constructed his residential house in the year 2000 itself and his children have completed their education. Thereby, he has not having any necessity of raising the loan from the complainant as alleged in the complaint does arise.
16. In his further chief, he has deposed that, he had produced additional document in support of his defence i.e., the true copy of the Bank statement of his account for the period from 01.01.1996 to 30.06.2014 which is marked as Ex.D14, the true copy of the Bank Statement of his wife account for the period from 10.08.2007 to 30.06.2011 which is marked as Ex.D15 and also he has produced four certified copies of marks card his son Santhosh T.N. pertaining to B.Sc., Nurising course which are marked as Ex.D16 to Ex.D19 and also nine certified copies of marks card of his daughter Sangeetha T.N. which are marked as Ex.D20 to Ex.D28. Thereby, the question of borrowing the loan from the complainant as alleged in the complaint, his family necessity and also education purpose of his children does not arise and he had worked teacher for 6 months at Shigga on deputation basis. He was came into contact with the complainant in the year 2000, his wife not borrowed any amount from the complainant. He does not know the 12 C.C.6610/2014 complainant had deposited Rs.1,50,000/- to the bank account of his wife S.P. Vijaya on 04.11.2009 and so also Rs.35,000/- deposed by the complainant in his wife account on 18.11.2009. He was not aware if the complainant had remitted Rs.49,000/- to the bank account of his daughter T.N.Sangeetha on 16.11.2009 and so also he had deposited that, he had spent Rs.6,00,000/- towards the education of his children. Further, he himself deposed that, he had completed construction his house in the year 2001 at the cost of Rs.4,00,000/- by raising loan from the bank. It is true that, the cheque at Ex.P1 is of his own account and Ex.P1(a) is his own signature. He denied the suggestion that, he had got filled the contents of the cheque in different ink and after putting his signature in another ink thereon given it to the complainant to discharge of existing liability with an intention to cheat the complainant. It may be true if the complainant has owning landed agricultural properties at Shigga. Further, he has admitted fact that, on 08.12.2009 his wife has remitted Rs.8,000/- on 05.01.2010, Rs.15,000/- on 11.02.2010, Rs.15,000/- on 05.03.2013, Rs.15,000/- on 16.04.2010, Rs.15,000/- on 12.07.2010, Rs.9,000/- on 20.07.2010, Rs.10,000/- and Rs.10,000/- on 08.09.2010 to the bank of the accused complainant which are marked as Ex.D4 to 11 respectively. He was not aware his wife had paid the amount as such to repay the loan borrowed by her from the complainant. It is true that, D.Manjunatha so also filed case under N.I. Act for Rs.4,00,000/- against his wife on the file of XVI ACMM Court, Bengaluru. He was not aware if the complainant of this case is a stranger to D.Manjunath. He denied the suggestion that, the complainant has not filed any 13 C.C.6610/2014 case against his wife through D.Manjunath. His wife is a housewife, he did not know the exact number of signed blank cheques taken by the complainant from his wife. But, he had left totally four signed blank cheques with his wife in the year 2009. He denied the suggestion that, the has given old cheque in question Ex.P1 with intention to cheat him. He denied the suggestion that, amount of Rs.3,00,000/- which he had remitted to the bank account of the complainant was towards the repayment of the previous loan i.e., as per Ex.D4 to Ex.D11. The Ex.D4 to Ex.D11 are discloses that, the remittance of the amount to the bank account of the complainant in the year 2010 and 2009 and month of January-2011. But, those amount only to an extent as per Ex.D4 to Ex.D11 Rs.1,70,000/-
17. In support of his case of the accused, he has also examined his wife as DW-2, she has also corroborate the evidence of the accused, she has admitted fact that, both the complainant and herself childhood school classmate, as the complainant is known to her and her husband and both of them were visiting each other houses as and when required she herself deposited in the year 2002-03 the present complainant was working as a PA to the then Irrigation Minister Kumar Bangarappa, her husband met with an accident, in that connection the complainant has assured to get some benefits for us from the Government on payment of Rs.1,00,000/- to the complainant and has taken medical bill to the tune of Rs.4,00,000/- and accordingly, she had paid loan of Rs.1,00,000/- to the complainant as demanded by him in monthly installment, when she had disclosed her inability to pay the said loan to the complainant at that time the complainant taken signed blank 14 C.C.6610/2014 cheques of her husband account for the purpose of security in the year 2009 as per the undertaken she was remitted Rs.10,000/-, Rs.15,000/- to the bank account of the complainant from the year 2009, the receipt for such remittance is already marked as Ex.D4 to Ex.D11. Further, she had deposed that, she had totally paid the account of the complainant to the tune of Rs.97,000/- till the year 2010. Subsequently, whenever she had demanded the complainant for return of the signed blank cheque of her account and her husband's account, he failed to return assuring that, they would be returned. Subsequently, the complainant has sent the legal notice through one Manjunath on getting dishonour of her husband's signed blank cheque. Thereafter, the complainant has got filed the complaint through his friend D.Manjunatha against her which is filed before the XVI ACMM Court, Benglauru and later it was dismissed. She also further deposed that, the present complainant also filed complaint against her husband taking undue advantage of the signed blank cheques of her husband which has been given by her to the complainant. There was no necessity for her husband to take the loan in question from the complainant for construction of the house since they have constructed the house, in the year 2002 by raising loan from the bank. She deposed that, in the cross, it is true that, the complainant has paid Rs.3,00,000/- on her bank account, volunteers that, she has paid said amount on three occasion i.e., Rs.49,000/- to the bank account of her daughter Sangeetha and remaining amount to her account, prior to payment of Rs.3,00,000/- from the complainant, none of the family members including herself and other members have 15 C.C.6610/2014 financial transactions with the complainant. Further, she deposed that, she had borrowed the said Rs.3,00,000/- amount by way cash to the complainant. It is true that, one Manjunath had filed similar complaint against her for Rs.4,00,000/- before the XVI ACMM, Bengaluru. But, she deposed volunteers that, said Manjunath is a stranger to her and case filed by the Manjunath was also dismissed and she was not appeared before the XVI ACMM in that case. She denied the suggestion that, amount of Rs.3,00,000/- borrowed her from the complainant is no way related to the case in hand. The complainant has taken cheque in question i.e., Ex.P1 from her at Sira in the year 2009 itself. She denied the suggestion that, at the instance of her husband, she has deposing falsely to avoid the payment of Rs.5,00,000/- to the complainant. It is true that, the complainant is landlord and from well to do family.
18. On perusal of the entire evidence of both parties and also documents produced by the respective parties on record. It is an admitted fact that, the complainant was knowing to the accused through her wife since both the complainant and wife of the accused were childhood classmate and it is also admitted fact that, prior alleged loan in question the complainant has advanced Rs.3,00,000/- to the wife of the accused and she has also repaid the said amount to the complainant and it is also admitted fact that, the accused being a Government school teacher and he was met with an accident. As per specific case of the complainant is that on account of well acquainted with the accused, he has advanced loan to the accused for his financial difficulties and for his children education purpose. But, as per the specific defence taken by the accused is that, he 16 C.C.6610/2014 has got constructed his house at Sira for borrowing loan from the DHFL Vysya Bank, Malleshwaram Branch, Bengaluru and to substantiate the same he has produced document Ex.D1 and also he had repaid the said housing loan as per Ex.D2. It is also admitted that, to substantiate that, his daughter education was completed in the year 2009, substantiate the same the accused has produced marks card of his daughter her college Marks Card produced which are marked as Ex.D20 to Ex.D28 and also his son was completed B.Sc Nursing course in the year 2008 itself and to substantiate the same the marks card of his daughter Sangeetha T.N is produced which are marked as Ex.D16 to 19 and his son working as a Lecturer at Rajiv College of Nursing, Hassan. Therefore, the question of borrowing the loan from the complainant for the purpose of his financial difficulties and for education of his children in the year 2012 does arise as the his children were completed their education 2009 and 2008 respectively.
19. As per the case of the complainant, he had advanced loan to the accused for his family necessities and for education purpose of his children in the year 2012. It can be seen that, whether, the accused was in need of money for his family necessity and for education purpose of his children it is an admitted fact that, the accused is Government school teacher and he was served about more than 37 years and he was also constructed his residential house at Sira by raising loan from the financial institution i.e., DHFL Vysya Housing Finance for Rs.3,50,000/- and he has rapid the said loan to the finance in the month May- 2010 itself and to that effect, he has produced documents about 17 C.C.6610/2014 the loan received from the finance and he has also categorically stated that, his children education i.e., T.N. Santhosh has completed his B.Sc., Nursing in the year 2008 itself and so also his daughter T.N.Sangeetha has completed her education M.A., B.Ed in the year 2011 itself. Therefore, purpose for which the complainant has advanced loan to the alleged purpose to the accused does not arise. Though the wife of the accused DW-2 has admitted with respect to that in the year 2009 she has borrowed loan from the complainant for meeting out of medical expenses of her husband as he was met with accident and at that time the accused has obtained her one blank signed cheque and also her husband's one signed blank cheque by the complainant and she is also deposed that, she had repaid loan which has been borrowed by her in the year 2009 from the complainant and this fact that, clearly reveals the bank counterfoils produced by the accused and therefore the question of again raising loan by the accused in the year 2012 to the extent of Rs.6,00,000/- from the complainant does not arise. In her cross-examination she had admitted that, the complainant is a landlord and from well to do family. But, as on the alleged advancement of loan to the accused was having in need of money or he was having financially sound or not is to be considered. The accused who is deposed that, he has served as Government school teacher for more than 37 years having handsome salary and his son T.N.Santhosh was also servicing as a teacher at Rajiva Gandhi College, after completion of his education. Therefore, the question of advancement of loan by the accused for the family legal necessity and for education purpose of his children in the year 2012 does not arise.
18 C.C.6610/2014Further, where the alleged cheque has been issued by the accused on 05.06.2013, on the face of the document i.e., Ex.P1 itself disclose that, the signature has been signed Ball Point pen and date has been written on different ink and other contents of cheque were written in Black point pen. Even though, there is no mandatory that, the account holder of the cheque he himself wrote the contents of the cheque, it can be written by any other persons. But, case in hand, the accused is not an illiterate person, as per the evidence of the accused is an Government teacher, well educated persons and he has also served more than 37 years. If relay he has issued cheque there is no impediment to wrote the contents of the Ex.P1 himself and in support of his case of the accused his wife DW-2 also categorically deposed that, at the time of borrowing loan in the year 2009 from the complainant, she had issued her own one signed blank cheque along with her husband one of signed blank cheque. Thereby, it can be presumed that, the contents of the cheque Ex.P1 was not wrote by the accused and it is also admitted fact that, the complainant's friend G.Manjunatha who is filed the complaint against the wife of the accused before the XVI ACMM Court, Bengaluru it was dismissed. The complainant obtained his one signed blank cheque and his wife's one one signed blank cheque in the year 2009 itself. But, claim alleged amount of Ex.P1 from the accused the complainant has filled up the said cheque, to get wrongful gain.
20. During the course of argument the counsel for the accused had submitted as per the direction of the RBI in the year 2013 the cheque has been issued to the account holder it is having validity for the three months from the date of the 19 C.C.6610/2014 presentation of cheque to the bank for encashment and thereby it can be inferred that, the alleged cheque book has been issued to the accused account holder prior to 2009. But, the said cheque has been presented for encashment on 05.07.2013 through State Bank of India, Mathikere Branch, it was dishonoured on 08.06.2013 as per the Ex.P2. Therefore, the claim of the complainant is barred by limitation.
21. Further during the course of argument he had argued that, the previous cheque number No.924201 has been presented by the accused itself and it has been passed through banker for encashment of Rs.65,0000/- in the name of accused Narayanappa as on 26.08.2009. Therefore, the present cheque i.e., Ex.P1 bearing No.924202 it has been issued by the accused in favour of the complainant in the year 2009 itself. Thereby, the present cheque Ex.P1 might have been issued in the name of the complainant in the year 1996 itself by putting his signature only. But, the complainant has presented the said cheque in the year 2013 he got filled up contents of Ex.P1 for wrongful gain. Therefore, the present claim of the complainant is barred by limitation, to support case of the defence he has produced his bank account statement which is marked as Ex.D14 and relevant entry dated: 26.08.2009.
22. The counsel for the accused has relied citation reported in 2004 (1) DCR 152 Andhra Pradesh High Court, Section 138 N.I. Act. dishonour of cheque the accused gave cheque for a time barred debt can not be said that it was issued for legally enforceable debt, if such plea not taken by accused in Court below, can be taken as legal plea at any point of time, even the 20 C.C.6610/2014 knowledge of debt is also time barred on facts of the case complainant can not enforce liability. Another citation reported in 2008 (2) SCC (Cri) 166, Section 139 N.I. Act presumption under scope of held Section 139 merely raises a presumption in favour of holder of cheque that the said cheque has been issued for discharge of any debt or other liability, existence of legally recoverable debt is not a matter of presumption under section 139, citation reported in AIR 2010 (NOC) 513 (KAR) Section 138 N.I. Act., dishonour of cheque existence of legally enforceable debt proof of complainant failed to establish that any loan was given to accused and accused issued alleged cheque either towards discharge of said loan amount or as security for repayment of it, the accused deposing that no amount was borrowed from complainant and no cheque issued to complaint either towards repayment of loan or as security for repayment, defence that some blank cheques were issued in respect of transaction between husband of complaint and accused, defence of accused, acceptable as probable, cheque cannot be held to have been issued in discharge of debt, same would not come within purview of Section 138 No offence made out against accused, acquittal of accused proper. Citation reported in AIR 2010 (NOC) 514 (KAR) Section 139 N.I. Act., dishnour of cheque "Legally enforceable debt" Presumption complainant failed to establish that she lent money to accused and accused delivered cheque to complainant, entire transaction took place between husband of complainant and accused complainant had no direct transaction with accused, delivery of cheque to and receipt of cheque by complainant disputed by accused, merely because accused admitted signature in alleged cheque not 21 C.C.6610/2014 sufficient proof that complainant received cheque from accused, complainant failed to prove existence of legally enforceable debt payable to her by accused, presumption cannot be raised in favour of complainant acquitted of accused proper.
23. The alleged citation relied by the complainant AIR 2010 Supreme Court 1898, on account of "stop payment instruction"
given by the accused to his banker. But, in this case fact and circumstances of the present case and fact and circumstances of the citation all are together different and same is not applicable to the case in hand.
24. The citations which are relied by the counsel for the accused are aptly applicable to the case in hand. The complainant has failed to prove the legally recoverable debt as on the alleged date of issuance of the cheque against the accused and thereby on the face of Ex.P1 it is clearly goes to show that, the alleged blank signed cheque has been issued by the wife of the accused in the year 2009 and the complainant got himself filled the contents of Ex.P1 are in different ink with ball point pen putting different date, to get wrongful gain. Merely, the accused has admitted his signature found on Ex.P1 it does not suffice that the complainant has proved the legally recoverable debt against the accused.
25. Hence, for all other reasons the complainant failed to prove that, there is a legally enforceable debt against the accused. Hence, complaint filed by the complainant is deserves to be dismissed. Accordingly, I answer the point No.1 in the Negative.
22 C.C.6610/201426. Point No.2 :- In view of my findings on Point No.1 in the Negative, I proceed to pass the following...
ORDER Acting U/s 255(1) Cr.P.C., the accused is acquitted for the offence punishable U/s. 138 of N.I. Act.
The bail bond and surety bond of the accused stands cancelled till the appeal period over.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 8th day of December 2015).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 J. Jagadish List of documents exhibited on behalf of the complainant:
Ex.P1 Cheque Ex.P1(a) Signature of the accused. Ex.P2 Bank Endorsement Ex.P3 Office copy of legal Notice Ex.P4 & 5 Two Postal acknowledgement Ex.P6 to 10 Five RTC's Ex.P11 to 14 Four official counterfoils of bank challans
List of witnesses examined on behalf of the accused :
DW.1 Narayanappa
DW.2 Vijaya S.P
23 C.C.6610/2014
List of documents exhibited on behalf of the accused :
Ex.D1 & 2 Two letters dated:02.06.2010 and 05.05.201 Ex.D3 Another letter Ex.D4 to 11 Eight Counterfoils of the bank challans Ex.D12 and 13 PCR No.22844/2013 order sheet and complaint Ex.D14 and 15 Bank statements Ex.D16 to 19 Original Marks Card of accused daughter pertaining to B.Sc Nursing Course Ex.D20 to 28 Nine original marks of accused daughter XII Addl. Chief Metropolitan Magistrate, Bengaluru City.24 C.C.6610/2014
(vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(1 ) Cr.P.C., the accused is acquitted for the offence punishable U/s. 138 of N.I. Act.
The bail bond and surety bond of the accused stands cancelled till the appeal period over.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.25 C.C.6610/2014