Bangalore District Court
Sri. Dhanaraj.R vs Miss. B.N.Anitha on 23 March, 2020
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SRI. NAGARAJEGOWDA. D. B.Com, L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO.21047/2017
Dated: This the 23rd day of MARCH - 2020
COMPLAINANT/S: Sri. Dhanaraj.R.
S/o. Ramaiah.M.
Aged about 33 years,
R/at. No.126, Ground Floor,
3rd Main Road,
Opp. Panchasheelanagara,
Bus Stop, Moodalapalya,
Bengaluru-560072.
V/s.
ACCUSED: Miss. B.N.Anitha
D/o. Late Nandaram
Aged about 35 years,
Employee No.1591528,
CID, Head Office,
Carlton House No.1,
Palace Road, Bangalore-560001.
Mobile No.9902493861
Government Employee in
CID Office
Also residing address:
R/at. No.275, Manju Nilaya,
Saraswathi Nagar,
Vijayanagar,
Bengaluru-560040.
JUDGMENT 2 C.C.21047/2017
Offence Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Acquitted
**
:: JUDGEMENT ::
The complainant filed the private complaint under Section.200 of Cr.P.C alleging that, the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act.
2. The brief facts of the complainant case as per Ex.P10 complaint reads as follows:
The accused is working as a Stenographer in CID Head Office, Carlton House, Bengaluru. The complainant's aunt Smt. Lakshmidevamma is working as 'D' Group Employee in KREDL, Bengaluru, which is adjacent office to the CID Office. The accused is residing at Saraswathinagar towards Vijayanagar at Bengaluru and the complainant's aunt Smt. Lakshmidevamma is residing at Agrahara JUDGMENT 3 C.C.21047/2017 Dasarahalli towards Vijayanagar at Bengaluru and the said Smt. Lakshmidevamma and accused are used to travel in same bus in every day after finishing their respective office works, at that time the complainant's aunt Smt. Lakshmidevamma and the accused has meet each other and afterwards the complainant's aunt Smt. Lakshmidevamma and the accused had build up their cordial relationship as friends. Based on the above cordial relationship, in the month of March 2016, the accused had approached and requested for financial help of around Rs.2,50,000/- for the accused personal work and further the accused had represented with the complainant's aunt Smt. Lakshmidevamma and accused has got partition from their grandparents for the purpose of paying taxes to the concerned properties as well as releasing gold ornaments from the pawn brokers and also the accused has further represented with the complainant's aunt Smt. Lakshmidevamma that, the worth of the properties of the accused share as well as gold ornaments more than 3 crores. The accused has got pay around Rs.23,50,000/- as stamp duty for discharging some liabilities on the property JUDGMENT 4 C.C.21047/2017 and also the pledged gold ornaments has to be release. The complainant further submits that in the month of April 2016, the accused has come to the house of the complainant's aunt Smt. Lakshmidevamma at Agrahara Dasarahalli and explained to grave need of money as aforesaid, at that point of time, the complainant's aunt Smt. Lakshmidevamma had assured with the accused to adjust amount as much as early and further, the complainant's aunt Smt. Lakshmidevamma is having three daughters, among two daughters already married and third daughter has to be marry. For that purpose, the complainant's aunt Smt. Lakshmidevamma had saved jewels for her daughter's marriage i.e., 72 Grams 320 miligram of gold ornaments. Further on very same day, the complainant's aunt Smt. Lakshmidevamma showed aforesaid jewels to the accused. In the last week of April 2016, again the accused had approached the complainant's aunt Smt. Lakshmidevamma in her house and requested the aforesaid jewels for one day for the purpose of attending marriage function of the accused relative, on the basis of cordial relationship with the JUDGMENT 5 C.C.21047/2017 accused, the complainant's aunt Smt. Lakshmidevamma had handed over all the gold jewels as mentioned above to the accused and very same day initially the complainant's aunt Smt. Lakshmidevamma has paid Rs.40,000/- to the accused by way of cash handed over the gold ornaments as mentioned above to the accused and the very same day the accused has assured with the complainant's aunt Smt. Lakshmidevamma to return the gold ornaments within one week after completion of marriage ceremony of the accused relative and again requested the complainant's aunt Smt. Lakshmidevamma to arrange Rs.2,10,000/- within week, then the accused would come and collect the amount with security as the complainant's aunt Smt. Lakshmidevamma desired. After that, again the accused has approached the complainant's aunt Smt. Lakshmidevamma and requested for money, the complainant's aunt Smt. Lakshmidevamma has paid Rs.1,00,000/- by way of cash to the accused but the accused has endorsed the same with the complainant's aunt Smt. Lakshmidevamma for receiving total amount of Rs.1,40,000/- as well as gold ornaments and again requested with the complainant's aunt Smt. JUDGMENT 6 C.C.21047/2017 Lakshmidevamma to gave two months further time to return the said amount as well as gold ornaments. The complainant's aunt Smt. Lakshmidevamma believing the accused sweet words and believing blindly have made above transaction with the accused in bonafide manner without any expectations from the accused. After receiving the gold and cash amuont of Rs.1,40,000/- from the complainant's aunt Smt. Lakshmidevamma, very next day the accused has approached the complainant's aunt Smt. Lakshmidevamma and further requested the complainant's aunt Smt. Lakshmidevamma to arrange the amount some one else or relatives and the accused has assured with the complainant's aunt Smt. Lakshmidevamma to pay interest to the said amount. In the presence of the complainant's aunt Smt. Lakshmidevamma, the accused has requested with the complainant for further sum of Rs.2,00,000/- and the complainant's aunt Smt. Lakshmidevamma has made convince to help the accused for giving the said amount with her security basis. The accused has to pay the amount of Rs.2,00,000/- with interest of 2% p.m. and also agreed to take the hand loan from the complainant for an JUDGMENT 7 C.C.21047/2017 amount of Rs.2,00,000/- with interest of 2% p.m. On 30- 04-2016, the complainant had paid Rs.2,00,000/- to the accused by way of cash with the complainant's aunt Smt. Lakshmidevamma's presence in his house at Moodalapalya and which regard the accused has endorsed the same with the complainant's aunt Smt. Lakshmidevamma has also security consented for that endorsement for receiving of Rs.2,00,000/-. After the lapse of two months, the complainant and the complainant's aunt Smt. Lakshmidevamma have requested the accused personally to return the amount of Rs.2,00,000/- through their accused Mobile No.9902493861, but the accused one or other pretext avoiding the complainant's aunt Smt. Lakshmidevamma and postponing the issues for settling amount as well as gold and the accused has totally neglected and misused the complainant's innocence, promptness and friendship. Finally, the complainant and the complainant's aunt Smt. Lakshmidevamma have approached the accused office and requested on 30-01- 2017 and the accused has agreed to settle the amount. For that the accused issued a postdated cheque bearing JUDGMENT 8 C.C.21047/2017 No.142730 dated 02-05-2017 for a sum of Rs.2,00,000/- drawn on Syndicate Bank, Basaveshwara Road Branch, Bengaluru. In presence of the complainant's aunt Smt. Lakshmidevamma and under the endorsement the complainant's aunt Smt. Lakshmidevamma has also signed as consenting witness. As per the accused assurance and undertaking and by believing on the accused, on 02-05- 2017 the complainant has presented the said cheque through his bankers i.e., Karnataka Bank Ltd., City Civil Court Branch, Bengaluru on 03-05-2017 and the said cheque is returned unpaid with the shara "Payment stopped by drawer" as per endorsement dated 03-05- 2017, the same is informed to the accused, but the accused did not pay the cheque amount.
Thereafterwards, the complainant got issued legal notice to the accused through his counsel on 15-05-2017, the same is sent by RPAD to the accused, but the said notice is returned with the shara 'No such person in this address'. Thereafterwards, the complainant has sent blank postal cover without any article in the postal cover, have sent through her counsel S.Nagaraj, Advocate and the accused JUDGMENT 9 C.C.21047/2017 has sent untenable reply notice thorough her counsel to the complainant's aunt Smt. Lakshmidevamma's legal notice stating that, the cheque has been lost on 14-11- 2016 itself. For that, on 15-11-2016 itself has lodged the complaint and on 16-11-2016 itself informed for the bank for stop payment etc. The accused is working in CID Office, she knows every procedure in Police Department and also she knows Police Officers in her Department as well as other Police influence and she given a reply notice, but the accused did not comply the terms of the notice and the accused has issued an untenable reply to the notice of the complainant and thus the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and to impose a fine, double the amount of cheque with 24% p.a., until realization of the said amount to the complainant in the interest of justice.
3. After recording sworn statement of the complainant with documentary evidence, this court has registered the case against the accused for the alleged offence punishable under Section.138 of Negotiable Instruments Act. JUDGMENT 10 C.C.21047/2017 Summons issued to the accused. The same is duly served to the accused and she is appeared through her counsel and enlarged on bail. Thereafterwards, plea of the accusation has been read over and explained to the accused in the language known by her and she pleaded not guilty and claims to be tried.
4. In support of the case of the complainant, the complainant given his affidavit by way of chief-examination and examined himself as PW.1 and got marked Ex.P1 to P21 and also examined one witness as PW.2. After appearance of the accused permitted to the accused counsel to cross-examination of PW.1 and 2 and these PW.1 and 2 have been fully cross-examined by the accused counsel and at the time of cross-examination of PW.2 accused counsel got marked Ex.D.1 and thus the complainant closed his side evidence.
5. Thereafterwards, the accused person examined under Section.313 of Cr.P.C. statement. In which she totally denied the entire case of the complainant. In support of her denial she took time to lead her side defense evidence. JUDGMENT 11 C.C.21047/2017 But inspite of sufficient opportunity has been given to the accused, the accused did not choose to lead her side defense evidence. Hence, accused defense evidence has been taken as nil.
6. I have heard the arguments on both the complainant and accused on merits.
7. In support of the case of the accused, the learned counsel for accused has relied on the following citations:
(2014) 2 Supreme Court Cases 236 (John K.Abrahm V/s. Simon C.Abraham and another). In which the Hon'ble Supreme Court of India has held that, in view of said serious defects/lacunae in evidence of complainant, judgement of High Court reversing acquittal of accused by trial court, held, was perverse and could not be sustained -
Acquittal restored.
Further relying on the decision reported in (2015) 1 Supreme Court Cases 99 (K.Subramani V/s. K.Damodara Naidu). In which the Hon'ble Supreme Court of India has JUDGMENT 12 C.C.21047/2017 held that, presumption in favour of holder of cheque, hence, held, stood rebutted - Acquittal restored.
Further relying on the decision reported in ILR 2008 KAR 4629 (Shiva Murthy V/s. Amruthraj). In which the Hon'ble High Court of Karnataka has held that, Section 139 of the N.I. Act and thereafter find out as to whether or not the accused has rebutted the said presumption. Judgment of conviction and sentence are liable to be set- aside - Accused is acquitted.
Further relying on the decision reported in ILR 2009 KAR 172 (Sri. A.Viswanatha Pai V/s. Sri. Vivekananda S.Bhat). In which the Hon'ble High Court of Karnataka has held that, Conviction and sentence passed by the Trial Court / affirmed by the Appellate Court is not sustainable in law etc. Hence, the learned counsel for accused prays for acquittal of the accused in accordance with law.
8. On the basis of aforesaid facts and circumstances, the following points arises for my considerations: JUDGMENT 13 C.C.21047/2017
POINTS
1. Whether the complainant proves beyond all reasonable doubts that the circumstances stated in the complainant, the accused received a sum of Rs.2,00,000/- and towards repayment of the said amount and the accused issued a postdated cheque bearing No.142730 dated 02-
05-2017 for Rs.2,00,000/- drawn on Syndicate Bank, Basaveshwara Road Branch, Bengaluru and assured the complainant the said cheque will be honoured on its presentation to the bank and accordingly, the complainant has presented the said cheque through his bankers i.e., Karnataka Bank Ltd., City Civil Court Branch, Bengaluru on 03-05-2017, but the said cheque is returned unpaid with the endorsement 'Payment Stopped by Drawer'. Thereafterwards, the complainant got issued legal notice to the accused on 15.05.2017 sent by RPAD, but the same is returned with the shara 'No such person in this address' but instead of comply the terms of the said notice the accused sent an untenable reply to the notice and thus the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act?
2. What order?
JUDGMENT 14 C.C.21047/2017
9. My answers to the above points are as under:
Point No.1: In the Negative
Point No.2: As per the final order,
for the following.
REASONS
10. POINT NO.1: In support of the case of the
complainant, the complainant has filed an affidavit by way of examination-in-chief as PW.1. In which he reiterated the complaint contention and got marked documents at Ex.P1 to P21. Ex.P1 is the hand Loan Agreement dated 30- 04-2016 alleged to be executed by the accused and identified the signature of the accused as per Ex.P1(a) and in backside of the Ex.P.1 agreement it is stated cheque bearing No.142730 dated 02-05-2017 has been given to the complainant on 30-04-2016 is the repayment loan amount of Rs.2,00,000/- with some correction send by Smt. Lakshmidevamma.T.name is found but without her signature except mentioned Smt. Lakshmidevamma of Agrahara Dasarahalli, Bengaluru is E-Stamp obtained on 29-04-2016. Ex.P.2 is the cheque alleged to be issued by JUDGMENT 15 C.C.21047/2017 the accused amounting to Rs.2,00,000/- and identified the signature of the accused as per Ex.P2(a). Ex.P.3 is the bank challan deposited as per the the Ex.P.2 challan of the bank. Ex.P.4 is the bankers Endorsement issued by the bankers stating that Ex.P2 cheque is returned dishonoured due to 'Payment stopped by Drawer'. Ex.P5 is the copy of legal notice and the said notice sent to the accused sent by RPAD as per Ex.P.6 and 7 are the Postal receipts. Ex.P.8 is the Postal Acknowledgment to show one of the legal notice sereved to the accused,but the same is duly served without signature of the accused. Ex.P.9 is the Postal cover i.e., legal notice to the accused is returned with the postal shara 'No such person in this address' and Ex.P.9(a) is the notice is in it. Ex.P.10 is the complaint is not under dispute. Ex.P.11 is the statement of account stands in the name of the complainant of Axis Bank, in which on 29-04-2016 cash by self withdrawn amount of Rs.50,000/-. Ex.P.12 is the statement of account stands in the name of wife of the complainant Smt.Veenavathi of Karnataka Bank Ltd., in which on 29- 04-2016 withdrawn amount of Rs.10,000/- and JUDGMENT 16 C.C.21047/2017 Rs.14,000/-. Further Ex.P.13 is the Incoming Call Extract in Kannada taken between the complainant and accused on 29-08-2016 regarding the amount taken by the accused but in the conversation there is no specific amount has been mentioned. Ex.P.14 is the another Incoming Call Extract in Kannada taken between the complainant and accused on 01-11-2016 regarding the amount taken by the accused and but in the conversation there is no specific amount has been mentioned. Ex.P.15 is the Message taken between the complainant and accused, in which also there is no specific amount has been mentioned. Ex.P.16 is the Vodafone bill copy stands in the name of the complainant dated 25-05-2016. Ex.P.17 is the various colour photos of the accused with one Smt.Lakshmidevamma before their residence and Ex.P.17(a) is the CD of the photos. Ex.P.18 is the CD of phone call recording videos message snap shots CD etc. Ex.P.19 is the Deed of undertaking executed by the accused in favour of Smt. Lakshmidevamma.T. on 30-01- 2017. As per the case of the complainant, Ex.P.20 is the copy reply notice issued to B.E.Shreedhar, Advocate by JUDGMENT 17 C.C.21047/2017 Smt.Lakshmidevamma.T. Ex.P.21 is the certified coy of the deposition given by the accused in CC No.16464/2016 before the 15th ACMM Court, in which she has stated that she lost the cheques which was to be given to the LIC, when she was traveling in the bus on 14-11-2016 and given an instruction to the concerned bankers about stopping the cheque etc., along with the said deposition and produced the Judgment passed by the 15th ACMM Court on 14-09-2018 in which the Hon'ble Court was convicted this accused and shall pay fine of Rs.4,00,000/- by the accused.
12. On the basis of the these documentary evidence, there was a transaction taken between the complainant and accused but the alleged Ex.P.2 cheque is dishonoured due to 'Payment Stopped by Drawer'. In support of the case of the complainant, the complainant examined one witness as PW.2 Smt. Lakshmidevamma.T.she filed an affidavit in which she has stated that as per the case of the complainant and in CC No.16464/2017 she got produced certified copy of the receipt as per Ex.D.1, in which on 02- JUDGMENT 18 C.C.21047/2017 01-2015 in the name of Smt. Lakshmidevamma the estimate given by the Ramdev Bankers from jewels of Rs.16,000/- and another estimate jewels given by the same party on 02-10-2015 of Rs.13,000/-. In support of the case of the accused counsel relying on the decisions as stated above are applicable to the case of the accused to show that the accused had given a rebuttal evidence of the case of the complainant. In the cross-examination of PW.1, the accused counsel has stated that in order to show he had sufficient amount with him. For that he has produced the bank statement and in his bank statement only he got amount of Rs.74,000/- and also obtained an amount of Rs.1,25,000/- from his friend Gopi, for that the complainant has not examined the said Gopi to support of his case but as per Ex.P.1 loan agreement, the accused undertaken to pay rupees 2 lakhs to the complainant. Though the complainant who being an Advocate and he had knowledge about how the amount of Rs.20,000/- has to be given to the some other person but the amount given to the accused is not shown the income tax returns and he denied that the accused is not able to give interest at the JUDGMENT 19 C.C.21047/2017 rate of 24% p.m. and he admitted that as per Ex.P.21 the judgement the accused obtained a stay order before the Appellate Court etc. Likewise in the cross-examination of PW.2 as per Ex.D.1 is only the estimate not for purchase of gold articles from the authority and she was working as 'D' Group employee in KREDL Office and she was not declared the loan amount given to the accused and hence she has not at all given any amount to the accused etc. As such, on the basis of the cross-examination of PW.1 and 2. Though the accused, she has not given any defense evidence in spite of sufficient opportunity has been given but on the basis of the cross-examination of PW.1 and 2 and the Ex.P.2 cheque is dishonoured due to 'Payment stopped by Drawer' and legal notice issued to the accused is not duly served to the accused because the accused has denied the receipt of legal notice to her etc. As such, the complainant is not approached this court in a proper manner. As such the ruling relied by the accused counsel as stated above are applicable to the case of the accused to show the accused has given rebuttal evidence of the case of the complainant. Hence, the accused is entitled for JUDGMENT 20 C.C.21047/2017 acquittal. Accordingly, I answer Point No.1 in the Negative.
14. POINT NO.2: From the forgoing reasons, I proceed to pass the following:
ORDER Acting under Section.255(1) Cr.P.C., the accused is acquitted from the alleged offence punishable under Section.138 of Negotiable Instruments Act.
The accused is set at liberty and her bail band and surety bond if any will be continued for a period of 6 months in compliance of under sec.437(a) Cr.P.C., (Dictated to the Stenographer, corrected and then pronounced by me in the open court on this the 23rd day of March -2020) (NAGARAJEGOWDA. D.) XIII Addl. C.M.M., Bengaluru.
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Sri. Dhanaraj.R. Documents marked on behalf of the complainant: JUDGMENT 21 C.C.21047/2017
Ex.P1 : Original hand loan agreement
Ex.P1(a) : Signature of the accused
Ex.P2 : Cheque
Ex.P2(a) : Signature of the accused
Ex.P.3 : Bank Challan
Ex.P4 : Bankers Endorsement
Ex.P5 : Copy of Legal notice
Ex.P6-7 : Postal Receipts
Ex.P8 : Postal Acknowledgement
Ex.P.9 : Unserved Postal Cover
Ex.P.9(a) : Notice is in it
Ex.P10 : Complaint
Ex.P10(a)&(b) : Signatures of the complainant
Ex.P11-12 : Statement of Accounts
Ex.P13-14 : Incoming Call Extracts
Ex.P15 : Message Extracts
Ex.P16 : Vodafone Bills copy
Ex.P17 : Colour Photos
Ex.P17(a) : CD
Ex.P18 : CD
Ex.P19 : Certified copy of Deed of
Undertaking
Ex.P20 : Reply Notice
Ex.p21 : Certyfied copy of accused in C C no
16464/2017along with copy of judgement Witnesses examined on behalf of the accused:
- None -
Documents marked on behalf of the accused:JUDGMENT 22 C.C.21047/2017
Ex.D.1 : Copy of Estimate bills.
(NAGARAJEGOWDA. D.) XIII Addl. C.M.M., Bengaluru.