Bangalore District Court
Sri. Saravana.J vs Smt. Mangalamma. B.M on 3 January, 2017
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY.
Dated this the 3rd day of January, 2017
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.49/2016
Complainant : Sri. Saravana.J.,
S/o. B.G.Jayavelu.,
Aged about 37 years,
Residing at Channamma Nilaya,
No:15, 6th Main,
Byraveshwaranagar,
Nagarbhavi Main Road,
Bengaluru - 560 072.
(By Sri.V. Srinivas and Prabhuswamy., Advs.)
V/s.
Accused : Smt. Mangalamma. B.M.,
W/o. Jayaboraiah.,
Aged abvout 37 years,
Proprietor,
Poojashree Bharat Gas Grameena Vitharak.,
Hallikere Village,
Kasaba Hobli,
Maddur Taluk,
Mandya Distrist.
(By Sri. C.Ravi Kumar., Adv.)
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
2 C.C.No.49/2016
Final Order Accused is acquitted
Date of Order : 3-1-2017.
JUDGMENT
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 accused is well known to the complainant. She is also running a gas distribution agency and she approached the complainant during December 2014 and borrowed hand loan of Rs.10,00,000/- by way of cash for her urgent business commitments. While borrowing the said amount, the accused had assured to repay the said amount within six months. After lapse of six months, the complainant demanded to repay the said amount, for that the accused has issued a cheque bearing No:
050908 dated 24/7/2015 for Rs.10,00,000/- drawn on drawn Corporation Bank, Maddur Branch, Mandya District in favour of the complainant and informed the complainant that the said cheque will be honoured on its presentation to the Bank. 3 C.C.No.49/2016 Accordingly the complainant presented the said cheque through his banker namely Union Bank, Chandra Layout Branch, Bengaluru, but the said cheque returned unpaid with an endorsement "Funds Insufficient" dated 19/9/2015. Immediately the complainant contacted the accused and intimated the said fact. But the accused neglected and failed to pay the loan amount. As such, the complainant got issued legal notice to the accused on 6/10/2015 by RPAD. The notice was duly served to the accused on 11/10/2015, but the accused did not reply or complied the notice and thus she has committed the offence punishable u/s. 138 of NI Act and punish the accused in accordance with law by awarding 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 support of the case of the complainant, the complainant examined himself as PW.1 and got marked Ex.P1 to P.5 documents. P.W.1 has been cross-examined by the accused counsel and he wanted to lead further cross-examination of P.W.1, but this court rejected his prayer and taken further cross- 4 C.C.No.49/2016
examination of P.W.1 as nil and thus the complainant closed his side evidence.
4. The accused was examined u/s.313 of Cr.P.C. in which, she totally denied the entire case of complainant. In support of her denial, she filed an affidavit as D.W.1 and got marked Ex.D1 to D.16 documents. D.W.1 has been fully cross-examined by the complainant counsel and thus the accused closed his side evidence.
5. In support of the case of the 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 the offence punishable u/s 138 of NI Act and punish the accused in accordance with law.
6. I have heard the arguments of the accused counsel on merits.
7. In support of the case of the complainant, the complainant examined himself as PW.1 filed by way of affidavit, in which he reiterated the complaint contention and got marked Ex.P1 to Ex.P.5 documents. Ex.P.1 is the cheque alleged to be issued by 5 C.C.No.49/2016 the accused and identified the signature of the accused as per Ex.P1(a). This issuance of the cheque in favour of the complainant for discharge of existing debt has been disputed. Ex.P.2 is the endorsement issued by the Bank stating that Ex.P1 was dishonoured due to "Funds Insufficient". Ex.P.3 is the copy of the legal notice. This notice contains the signature of both the complainant and his counsel. Ex.P.4 is the postal receipt for having sent the legal notice to the accused. Ex.P.5 is the postal acknowledgement to show the legal notice was received by the accused. But she did not reply or complied the notice. On the basis of oral and documentary evidence of the complainant, in order to show the complainant had sufficient amount with him, for that he has not produced any documentary evidence. Hence, prima facie the case of the complainant creates doubt.
8. The accused has denied the entire case of complainant. In support of her denial, she has lead her side evidence by way of an affidavit as D.W.1, in which she has stated that the complainant is a total stranger to her and she has not obtained any loan amount from the complainant. But, with the instigation of one P.Nagaraju S/o. M.C.Puttaswamy Gowda, resident of Shivapura, Maddur Taluk, the complainant misused the alleged 6 C.C.No.49/2016 cheque in question and filed this case against the accused and the accused has not committed the offence as alleged by the complainant. She submitted that the Government granted gas agency in favour of the accused and the said gas agency is situated at Hallikere Village, Kasaba Hobli, Maddur Taluk, Mandya District. She is a scheduled caste woman. One P.Nagaraju with an intention to grab the said gas agency fraudulently created registered partition deed. Afterwards, the said P.Nagaraju has taken possession of the said gas agency forcibly and taken the entire documents illegally along with the entire cheque book and the cheque involved in the case. In this regard, herself has lodged a complaint before the Superintendent of Police, Mandya, after several days, with the direction of the police the said P.Nagaraju handed over the said gas agency in her favour. Afterwards, with an intention to harass her, the said Nagaraju forged the signature and misused the cheque in question and filed several complaints against her through several persons and thus the accused has not obtained any loan amount from the complainant for a sum of Rs.10,00,000/-.
9. Further stated that the said Nagaraju, with the instigation of one Shiva Kumar has filed a false case against the 7 C.C.No.49/2016 accused in C.C.No: 3664/2016 pending before XII A.C.M.M., Bangalore alleging an amount of Rs.10,00,000/-. The said case is pending disposal, and also one Rajesh filed a false case against this accused in C.C.No: 6312/2016 and the same is also pending in the same court for an alleged amount of Rs.10,00,000/-. Further, one Chaithra is illegally claiming Rs.4,00,000/- through notice. Further stated on 26/9/2013 herself and her husband executed a registered sale deed in respect of an agricultural property and received Rs.3,00,000/- from the said P.Nagaraju to start the said gas agency. Subsequently, her husband and herself have repaid Rs.21,00,000/- to the said Nagaraju and herself never received any amount from the complainant. Further stated that against the complainant and the said P.Nagaraju and others she has filed PCR.No:5/2015 and PCR.No:6/2015 on the file of Hon'ble District and Sessions Judge at Mandya. Further, it is stated that the said Nagaraju with an intention to harass her filed O.S.No:84/2015 before Senior Civil Judge at Maddur and the case is pending disposal. The said P.Nagaraju is illegally claiming a sum of Rs.30,00,000/- from her, her husband and her son and she has not committed an offence as alleged by the complainant and hence prays for acquittal from this case.
8 C.C.No.49/2016
10. In support of her contention, she is relying on Ex.D.1 agreement of sale dated 26/9/2013 alleged to be executed by P.Nagaraju in favour of the accused. Ex.D.2 is the certified copy of the private complaint in PCR No:5/2015 on the file of Mandya Sessions Court. Ex.D.3 is the certified copy of order sheet in PCR No:5/2015. Ex.D.4 is the FIR in Crime No:0495/2015 filed by Maddur Police against P.Nagaraju. Ex.D.5 is the notification issued by Superintendent of Police, Malavalli. Ex.D.6 is the certified copy of PCR No:06/2015 on the file of First Addl. Sessions Judge at Mandya. Ex.D.7 is the certified copy of order sheet in that case. Ex.D.8 is the certified copy of FIR in Crime No:0496/2015 filed by Maddur Police. Ex.D.9 is the notification issued by Superintendent of Police, Malavalli on 11/11/2015. Ex.D.10 is the acknowledgment issued by the police. Ex.D.11 is the copy of the complaint lodged by the husband of the accused Jayaboraiah. Ex.D.12 is the complaint lodged to the Superintendent of Police, Mandya. Ex.D.13 is the complaint lodged to the State Commissioner for Scheduled Caste and Scheduled Tribes, Bengaluru. Ex.D.14 is the copy of the complaint lodged to the State authority. Ex.D.15 is the certified copy of plaint in O.S.No:84/2015 on the file of Senior Civil Judge, 9 C.C.No.49/2016 in which the said Nagaraju has filed a case against this accused and others. Ex.D.16 is the partition deed dated 17/10/2014.
11. On the basis of the oral and documentary evidence of the accused, the accused had given rebuttal evidence to the case of the complainant. In the cross-examination of D.W.1, the accused has denied the entire case of the complainant stating that the alleged cheque in question was issued in discharge of existing legal liability. Except the denial of the contention of the accused, the complainant has failed to bring home the guilt beyond all reasonable doubts. As per the defence taken by the accused, the accused counsel cross-examined P.W.1 in accordance to the cross-examination he alleged to have been stated as per the chief-examination of D.W.1 and the same has been denied by the complainant and the amount given to the accused was kept in the home of the complainant for the purpose of his brother's education and he has not shown the amount given to the accused in his income tax returns. Except the denial of the contention of the accused, the complainant has failed to produce cogent and convincing evidence to disprove the contention of the accused. As such, what ever the written 10 C.C.No.49/2016 arguments are submitted by the complainant will not support his case to disprove the case of the accused.
12. In support of the defence taken by the accused, the learned counsel for the accused argued before this court that the accused has given rebuttal evidence in accordance with the cross- examination of P.W.1 and also lead her side evidence. The evidence of D.W.1 and the documentary evidence produced on behalf of the accused clearly established that the accused had given rebuttal evidence in accordance with the complainant.
13. On the basis of the oral and documentary evidence of both the complainant and accused, the complainant has failed to prove the alleged guilt of the accused beyond all reasonable doubts and he has not specifically stated on which day the accused borrowed hand loan of Rs.10,00,000/- except during December 2014. As such, the complainant has not approached this court with clean hands and hence the accused is entitled for acquittal. Accordingly, I proceed to pass the following:-
ORDER The complaint u/s.200 of Cr.P.C., filed by 11 C.C.No.49/2016 the complainant is hereby dismissed. No costs.
The accused is acquitted from the alleged offence punishable u/s 138 of N.I.Act.
Accused is set at liberty. Her bail bond and surety bond if any 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 3rd day of January, 2017) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
ANNEXURE Witnesses examined for the Complainant:
PW.1 : Sri. Saravana.J. Witness examined for the accused: DW-1 : Smt. Mangalamma. B.M.
List of Documents marked for the Complainant:
Ex.P1 : Cheque
Ex.P1a : Signature of the accused
Ex.P2 : Endorsement
Ex.P3 : Legal notice
Ex.P4 : Postal receipt
Ex.P5 : Postal acknowledgement
12 C.C.No.49/2016
List of Documents marked for the accused:
Ex.D1 : Agreement of sale
Ex.D2 : Certified copy of the private
complaint in PCR No:5/2015
Ex.D3 : Certified copy of order sheet in PCR
No:5/2015.
Ex.D4 : FIR in Crime No:0495/2015
Ex.D5 : Notification
Ex.D6 : Certified copy of PCR No:06/2015
Ex.D7 : Certified copy of order sheet.
Ex.D8 : Certified copy of FIR in Crime
No:0496/2015
Ex.D9 : Notification
Ex.D10 : Acknowledgment.
Ex.D11 : Copy of the complaint
Ex.D12 : complaint lodged to the Superintendent
of Police, Mandya.
Ex.D13 : Complaint lodged to the State
Commissioner
Ex.D14 : Copy of the complaint lodged to the
State authority.
Ex.D15 : Certified copy of plaint in
O.S.No:84/2015
Ex.D16 : Partition deed
XXII ACMM, Bangalore.