Bangalore District Court
Hemanthkumar.J vs Devassy Kutty on 19 September, 2015
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 19th day of September - 2015
PRESENT: SRI. L.R. KURANE, B.Com., LL.B.,(Spl)
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.13835/2013
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Hemanthkumar.J,
S/o.Late.M.Jayaram,
Aged about 30 years,
R/at. No.288, 23rd Main,
17th 'B' Cross, 6th Phase,
J.P.Nagar,
Bengaluru-78.
(By Smt.B.Saraswathi, Advocate)
V/S
Accused : Devassy Kutty,
S/o.Late.P.D.Antony,
Major,
C/o.Deva Marketing,
R/at. No.106, Lalbagh Fort Road,
Bengaluru-04.
(By Mento Associates, Advocates)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 19.09.2015.
(L.R. KURANE)
XXIII Addl.CMM., Bengaluru.
JUDGMENT 2 C.C.13835/2013
JUDGMENT
This complaint has filed by the complainant against the accused under Section 200 of Cr.P.C., for the offence punishable under Section 138 of Negotiable Instruments Act, to take cognizance of the offence under Section 138 of Negotiable Instruments Act, and punish the accused in accordance with law.
2. The brief facts of the complaint are as under:
The accused and complainant knew each other since several years. In the 1st week of June 2012, the accused approached him and requested for hand loan of Rs.3 lakhs for his family necessities and other commitments and accused agreed to repay the same within 3 months along with interest at the rate of 24% per annum. Accordingly, in the 3rd week of June 2012, the complainant had paid Rs.3 lakhs to the accused by way of cash in his house. It is further stated that, after lapse of 3 months, the complainant had demanded to repay the said loan amount, to which the accused had issued a cheque bearing No.500938, dated:18.03.2013 for Rs.3 lakhs drawn on ICICI Bank, Rajajinagar Branch, Bengaluru in favour of complainant.JUDGMENT 3 C.C.13835/2013
It is further case of complainant that, the complainant has presented the said cheque on 18.03.2013 through his banker viz., Punjab National Bank, J.P.Nagar Branch, Bengaluru for its encashment and the said cheque was returned dishonoured with an endorsement "Funds Insufficient" dated:19.03.2013. On 15.04.2013, the complainant has issued a legal notice to the accused by RPAD, calling upon the accused to pay the cheque amount. The notice sent by RPAD was duly served upon accused. After service of notice the accused has issued ere eave of false reply to the said notice. But the accused has not paid the cheque amount to the complainant. Hence, the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act.
3. This court after perusing records, took cognizance of offence, and sworn statement of the complainant has been recorded. The Criminal Case has been registered against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused after service of summons put his appearance through his counsel and has been enlarged on bail. Thereafter, the court has recorded the JUDGMENT 4 C.C.13835/2013 plea of accused and the accused has not pleaded guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4. The complainant in order to prove his case, got examined himself as PW-1 and got marked seven documents at Exs.P1 to P7 and closed his side of evidence. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under Section 313 of Cr.P.C., the accused denied all the incriminating evidence available against him. The accused in order to disprove his case got examined himself as DW.1 and one witness as DW.2 and got marked two documents at Exs.D1 and D2 through the evidence of DW.2 and closed his side of evidence.
5. I have heard the arguments on both the sides.
6. The following points would arise for my consideration:
1. Whether the complainant proves beyond all reasonable doubt that, the accused had availed a hand loan of Rs.3 lakhs for his family necessities and has issued a cheque bearing No.500938, dated: 18.03.2013 for JUDGMENT 5 C.C.13835/2013 Rs.3 lakhs drawn on ICICI Bank, Rajajinagar Branch, Bengaluru towards legally enforceable debt?
2. Whether the complainant further proves beyond all reasonable doubt that, the accused has committed an offence punishable U/S 138 of N.I. Act?
3. What Order?
7. My findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
8. POINT NOs.1 & 2: These two points are inter-linked in order to avoid repetition of facts both points are taken for discussion at once.
In order to prove his case, the complainant has examined himself as PW.1 and in his examination in chief led by way of affidavit has reiterated the complaint averments. Apart from the oral evidence, the complainant has also produced the documents namely the cheque at Ex.P1 issued JUDGMENT 6 C.C.13835/2013 by the accused for Rs.3 lakhs and the said cheque was presented by the complainant for its encashment and the said cheque was returned dishonoured on 19.03.2013 for the reason "Funds Insufficient" in the account of accused. Ex.P2 is the Endorsement issued by the Punjab National Bank, Ex.P3 is the legal notice issued by the complainant to the accused demanding payment of cheque amount, Ex.P4 is the Postal receipt, Ex.P5 is the Postal Acknowledgment Card, Ex.P6 is the Reply notice issued by the accused to the complainant and Ex.P7 is the Letter executed by the accused to the complainant counsel.
9. It is the defence of accused that, the disputed cheque - Ex.P1 belongs to the account of him and it bears his signature. It is further defence of accused that, he had not availed hand loan from the complainant. But in the year 1988 he had availed a loan of Rs.3 lakhs from the father of complainant and agreed to pay interest of Rs.5,000/- per month. It is further defence of accused that, the father of complainant was died in the year 2002 and after the death of father of complainant, he used to pay the interest to the complainant and his sister. The accused further stated that, JUDGMENT 7 C.C.13835/2013 the complainant and his sister received interest for two months. The accused further stated that, the father of complainant at the time of death told him to give interest to his three sons. The accused further stated that, in the year 2012 he had received notice from Nithyananda who is brother of complainant and in the said notice the said Nithyananda stated that, the complainant and his sister are not paying any amount and interest to him and directed him to not to pay the interest to them, therefore he stopped making the payment of interest to the complainant, his sister and his brother. The accused stated that, when he stopped the payment of interest, the complainant and his sister sent a notice to shop address and afterwards he had paid Rs.50,000/- to them and requested to deduct this amount in the cheque amount. The accused stated that, he is ready to pay the remaining amount of Rs.2,50,000/- which he availed from the father of complainant.
10. The PW.1 in his examination in chief stated that, he knew the accused from his father and in the year 2012 the accused has requested him for hand loan, but he do not know for what purpose the accused requested for the said loan JUDGMENT 8 C.C.13835/2013 amount. The PW.1 stated that, he is serving in Film Industry and getting monthly salary of Rs.25,000/- to Rs.30,000/- in the year 2012. The PW.1 stated that, he had paid Rs.3 lakhs which is saved and stored his house from three years. The complainant in order to prove that he had getting monthly salary of Rs.25,000/- to Rs.30,000/- has not produced any document.
11. The PW.1 in his cross-examination denied that, after death of his father he, his brother-Nithyananda and his sister were getting interest of Rs.5,000/- per month. He admitted that, in the year 2007, the marriage of his brother - Nithyananda was performed and after marriage he is residing separately from them and there is no cordial relationship with him and his brother. The PW.1 denied that, in the year 2012 the accused has paid Rs.50,000/- and at that time the cheque given by accused to his father was returned and a new cheque was obtained from the accused. The PW.1 in his cross-examination on page 8 stated that, he do not know that on 04.02.2012 his brother had issued notice to accused. He do not know that in the said notice, his brother directed the accused not to pay the interest to him and if principal JUDGMENT 9 C.C.13835/2013 amount is paid his share should be given to him. The accused has denied his signature found in Ex.P7. The accused has questioned the genuiness of Ex.P7.
12. The accused in order to prove his defence has got examined DW.2 who is the brother of complainant. The DW.1 in his examination in chief has reiterated the defence taken by him during the cross-examination of PW.1. The DW.2 who is the brother of complainant in his examination in chief stated that, the complainant is his brother and accused had availed a loan of Rs.3 lakhs from his father in the year 1988. His father was died in the year 2002, from 2002-2007 the complainant and his sister getting interest from the accused. He stated that, on 04.02.2012 he had issued notice to the accused to stop the payment of interest to the complainant. The said notice was marked as Ex.D1. The complainant after getting opportunity to cross-examine of DW.1 and DW.2, he has not made any attempt to cross-examine the DW.1 and DW.2. Therefore, the evidence of DW.1 and DW.2 is remained undisputed. The complainant in order to deny the evidence of DW.2 has not examined his sister Aruna who is alleged to have been getting interest from the accused along JUDGMENT 10 C.C.13835/2013 with him. The accused has denied his signature found on Ex.P7.
13. I have perused the signature of accused found on Ex.P7 and the signature of accused found on Ex.P1. There is a much difference in the said signatures and therefore it creates doubt about the signature of accused found on Ex.P7. The complainant has not proved that, he has sufficient means to pay the amount of cheque to the accused in the month of June, 2012. The complainant stated that, he do not know for what purpose the accused had availed Rs.3 lakhs from his father. It is admitted fact that, the accused and father of complainant were friends and the accused may be availed hand loan of Rs.3 lakhs from the father of the complainant in the year 1988 and he had paid interest to complainant and his sister.
14. The DW.2 who is the brother of complainant has specifically stated that, the accused had not obtained loan from complainant, but he had obtained loan from his father in the year 1988. Therefore, it creates doubt about the transaction between accused and complainant and it creates doubt about existence of legal liability of Rs.3 lakhs from the JUDGMENT 11 C.C.13835/2013 accused payable to the complainant. The complainant has failed to prove the transaction between him and accused. Therefore, the complainant is not entitled to draw a mandatory presumption against accused under Section 139 of Negotiable Instruments Act. The accused has successfully rebutted the presumption available to complainant under Section 138 of Negotiable Instruments Act. The complainant has failed to prove that there is cash transaction between him and accused and failed to prove that the accused has issued the disputed cheque to discharge legal liability. The complainant failed to prove the alleged offence against accused. In view of the above said reasons, I hold point Nos.1 and 2 in the Negative.
15. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.JUDGMENT 12 C.C.13835/2013
The bail bond and surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 19th day of September - 2015) (L.R. KURANE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Hemanthkumar.J List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal Receipt Ex.P5 : Postal Acknowledgment Ex.P6 : Reply Notice Ex.P7 : Letter executed by accused
List of Witnesses examined on behalf of the defence:
DW.1 : B.A.Devassy Kutty DW.2 : Nithyananda
List of Exhibits marked on behalf of defence:
Ex.D1 : Copy of Notice
Ex.D2 : Postal Receipt
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
JUDGMENT 13 C.C.13835/2013
19.09.2015.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.