Bangalore District Court
Mr.Raghavendra Prasad. B.R vs Mr.Somashekar G on 2 July, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 2nd day of July, 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. 30241/2014.
Complainant : Mr.Raghavendra Prasad. B.R.
Aged about 35 years,
Son of Late Ramaiah,
Residing at Flat No.208,
2nd floor, Y.D.Lotus, 2nd A Cross,
1st Main Road, Bangalore 43.
(By Sri A.Venkoba rao Adv.)
V/s.
Accused : Mr.Somashekar G.
Aged about 39 years,
Son of Mr. Gopal,
No.478, Site No.21, Near Laggere
Bridge,Kempegowda layout,
Bangalore -58.
(By Sri P.Nehru Asso.,)
Date of Institution 05-11-2014.
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
Final Order Accused is acquitted.
Date of Order : 02.07.2015.
2 C.C.No. 30241/2014
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 software engineer working in
Bangalore and he is very well acquainted with the accused for the
past 15 years and also shared very cordial relationship with him
and accused engaged in the business of buying and selling used
cars under the name and style-M/s.Rajeshwari Car sales. The
accused approached the complainant on many occasions seeking
financial assistance to run his business. Accordingly, the accused
had borrowed total sum of Rs.12,50,000/- from the complainant
as detailed here below and duly acknowledged by him.
Sl.No Date Amount Mode of payment Bankers
. borrowed
1. 8-12-11 2,50,000=00 By cheque No.023103 Axis Bank,JP nagar
2. 14-12-11 2,20,000=00 By cash ----
3. 29-2-12 1,50,000=00 By cheque No.956272 Corporation Bank,
RMV Extn.
4. 8-4-12 1,90,000=00 By cash -----
5. 29-9-12 1,00,000=00 By cash -----
3 C.C.No. 30241/2014
6. 27-12-12 2,40,000=00 By cash ----
7. 13-4-13 50,000=00 By cash ----
8. 28-5-13 50,000=00 By cash -----
TOTAL 12,50,000=00
Out of the said total sum, the accused has repaid sum of
Rs.1,80,000/- by way of cash to the complainant and thereby
reducing the total outstanding due to the complainant
Rs.10,70,000/-. After repeated requests, the accused promised to
clear the said amount in three installment . In this regard, the
agreement was entered between them on 29-6-2014 . In terms of
the said agreement, accused issued three cheques as detailed
below and assured that these cheques will be honoured by the
bankers on its presentation as its due dates:
Sl.No Cheque No. & Date Amount Drawn on
1 431498 dt 10-7-14 3,50,000.00 Bank of India,
Basaveshwaranagar
Branch,Bangalore
2. 431499 dt 1-12-14 3,50,000.00 Bank of India,
Basaveshwaranagar
Branch,Bangalore
3. 431500 dt 31-1-15 3,70,000.00 Bank of India,
Basaveshwaranagar
TOTAL 10,70,000.00 Branch,Bangalore
4 C.C.No. 30241/2014
The complainant received the aforesaid cheques for
discharge of the loan amount due to him. The cheque was dated
10-7-2014. The accused requested the complainant to present the
said cheque in the month of Sept.2014 in view of the fact that he
was arranging the required funds to clear the cheque amount.
Accordingly, the complainant presented the cheque dated 10-7-
2014 for encashment through his bankers Axis bank, Kasturi
nagar branch, Bangalore but on 2-9-2014 the said cheque is
returned unpaid with an endorsement to that effect "Funds
insufficient". Immediately the complainant informed to the
accused about the dishonour of the cheque. But the accused was
remorseless and did not utter a word of paying up the dues to the
complainant. The complainant has tried to contact the accused
several times but the accused has been conveniently avoiding his
calls apparently for malafide reasons. Hence, complainant got
issued legal notice on 25-9-2014 under NI Act . Through RPAD
notice sent to the accused has been served on 27-9-2014 but he
has not issued any reply to the legal notice and the accused is
liable to pay Rs.10,70,000/- including the interest @ 18% P A
from the date of notice i.e. 25-9-2014 and thus accused
committed the offence punishable u/s. 138 of NI Act and punish
the accused in accordance with law and to direct him to pay the
5 C.C.No. 30241/2014
cheque amount of Rs.3,50,000/- to the complainant and to pass
such other relief's under the circumstances of the case, 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.P6 and this PW-1 has been
fully cross examined by the accused counsel and thus
complainant closed his 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, inspite of sufficient opportunity has
been given, he did not chose to lead his side defence evidence and
hence, his side defence evidence taken as NIL .
5. I have heard the arguments of Ln.counsel for
complainant on merit. The accused and his counsel remained
absent before this court and hence, their side arguments taken as
NIL .
6 C.C.No. 30241/2014
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 got
marked Ex.P1 Loan agreement Revenue stamp paper obtained on
14-5-2014 but it was executed on 29-6-2014 between the
complainant and accused and in all the page of this agreement
both the parties have put their signature but the accused denied
the execution of the said agreement except he admitted signature
on the agreement belongs to him. In order to prove the execution
of Ex.P1 , the complainant has not examined any one of the
witness who signed on this agreement. Further got marked Ex.P2
cheque alleged to be issued by the accused and identified the
signature of the accused as per Ex.P2(a). This issuance of cheque
in favour of complainant for discharge of legal liability has been
disputed by the accused stating that the accused is only due of
sum of Rs.3,50,000/- and not sum of Rs.10,70,000/- as alleged
by the complainant. Ex.P3 is an endorsement issued by the
bankers stating that Ex.P2 cheque is dishonoured due to "Funds
insufficient" . Ex.P4 is the copy of legal notice . This notice
contain the signature of the both complainant and his counsel .
Ex.P5 is the RPAD postal receipt. Ex.P6 is the postal
acknowledgement to show the legal notice sent to the accused by
7 C.C.No. 30241/2014
RPAD was duly served . Inspite of service of legal notice, the
accused did not choose to reply or comply the notice.
7. The accused has denied the entire case of complainant .
In support of his denial, inspite of sufficient opportunity has been
given, he did not chose to lead his side defence evidence. However
his counsel cross-examined the PW-1. In the cross-examination
of PW-1, he admitted that before issuance of legal notice to this
accused after dishonour of the cheque, this accused himself
issued a notice dated 25-4-2014 in which, he has stated he is due
towards complainant only to the extent of Rs.3,50,000/- and this
complainant also issued reply notice through his advocate on 25-
9-2014 and his yearly salary is Rs.14,00,000/- and he is an
income tax assessee and in his I.T. returns he has not shown
Rs.10,70,000/- given to the accused and he do not know whether
any amount more than Rs.20,000/- it is to be disbursed by way of
cheque or D D and he paid Rs.8,00,000/- by way of cash to the
accused , but he denied that accused obtained loan of
Rs.3,50,000/- in the month of October,2013 for the purpose of
his business and agreed to repay the same within 3 months and
also agreed to pay the said sum with interest @ 3% . But these
things are denied by the complainant and also he denied that this
complainant threatened the accused that they will take away life
8 C.C.No. 30241/2014
of his son and thereby complainant forcibly took his signature on
Ex.P1 stamp paper and at the time of putting his signature , it
was blank . Likewise, the complainant took Ex.P2 cheque forcibly
from the accused except the signature the contents are not belong
to him and he denied that Ex.P1 agreement has been
subsequently filled up and also he denied that he forcibly
obtained the cheque which was kept in the Cc No. 30241/2014
and he forcibly took the cheque from the accused and misused
the same etc.. and also he denied that he obtained the Car
document forcibly from the sister in law of this accused . But he
admitted that he had blank signed cheque issued by this accused
of the year 2012, but he voluntarily stated the said cheques are
filled up by the accused himself and also it was told that cheques
were not presented to the bank for collection etc.. Further at the
end of cross-examination at page No.9 , relevant portion reads
thus:
F ¥ÀæPÀgÀtUÀ¼À£ÀÄß ¸À°è¹zÀ £ÀAvÀgÀ DgÉÆæAiÀÄÄ ªÀÄÆgÀÄªÉ ®PÀë gÀÆ ºÀtªÀ£ÀÄß
PÉÆqÀÄvÉÛãÉAzÀÄ ºÉüÀ'zÀÝgÀÆ PÀÆqÀ £Á£ÀÄ CªÀjAzÀ LzÀÄ ®PÀë gÀÆ ºÀtªÀ£ÀÄß
PÉÆqÀĪÀAvÉ ¨ÉÃrPÉ ElÖzÉÝ JAzÀgÉ ¸ÀļÀÄî .
8. On the basis of the aforesaid suggestion to the PW-1 and
also Ex.P2 cheque in question the accused is only due towards
complainant is Rs.3,50,000/- and in order to show the
9 C.C.No. 30241/2014
complainant had paid Rs.12,50,000/- to the accused , he has not
produced any documentary evidence . Hence, the case of
complainant create doubtful, whether he really paid such huge
amount to the accused. The complainant failed to prove the guilt
of the accused beyond all reasonable doubt. But the accused
promptly admitted that, he is liable to pay Rs.3,50,000/- with
interest to the complainant. The complainant is entitled to
compensation only to the extent of cheque amount of
Rs.3,50,000/- with simple interest @ 6% P.A. from the date of
issuance of legal notice, till realization of the same. Accordingly, I
pass the following:
ORDER
Acting u/s 265 of Cr.P.C., the accused is acquitted for the offence punishable u/s 138 of N.I.Act However, the complainant is awarded compensation of Rs.3,50,000/- from the accused with simple interest @ 6% P.A. from the date of issuance of legal notice, till realization of the said amount, the same shall be paid to the complainant by the accused within 10 C.C.No. 30241/2014 a period of 30 days from the date of this order, and in default, to undergo S.I. for one year. (Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 2nd day of July, 2015) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
ANNEXURE ANNEXURE Witnesses examined for the Complainant:
PW.1 : Raghavendra Prasad B R Witness examined for the accused:
DW-1 : nil List of Documents marked for the Complainant:
Ex.P1 : Loan agreement Ex.P2 Cheque Ex.P2a : Signature of the accused Ex.P3 : Endorsement Ex.P4 : Legal notice Ex.P5 : Postal receipt Ex.P6 : Postal acknowledgement.
List of Documents marked for the accused:
nil :
:
XXII ACMM, Bangalore.
11 C.C.No. 30241/2014