Bangalore District Court
Sri H.L. Nagegowda vs Sri Herur J.S on 18 September, 2017
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
Dated this the 18th day of September, 2017
PRESENT: SRI MADHVESH DABER,
B.COM., L.L.B(SPL).,
XIX ADDL.C.M.M., BENGALURU.
Case No: C.C.No.383/2015
Complainant: Sri H.L. Nagegowda
S/o. Lakke Gowda,
Aged about 44 years,
R/at No.76, Nikh Nilaya,
Behind Chinmaya School,
HSR II Sector, Somasandarapalya,
Bengaluru - 560 021.
Accused: Sri Herur J.S.
S/o. Siddapa,
Aged about 36 years,
Police Constable No.428,
No.418, 2nd floor, 35th Block, Hudco
quarters, KSRP Quarters,
Koramangala, Bengaluru - 560 034.
And also at:
Commandent Office,
4th Betalion, KSRP, Koramangala,
Bengaluru - 560 034.
And also
Hiresinganagutti Village,
Hiresinganagutti Post,
Hunagunda Taluk, Bengaluru.
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found not guilty
Date of order: 18th September 2017
2 C.C.No.383/2015
JUDGEMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s.138 of N.I.Act.
2. The brief facts of the complaint are that;
The Complainant stated that the Accused has approached the in the month of February 2014 for hand loan of Rs.3,78,000/- for finical necessities with a promise to return the same within eight months. As per request of the Accused, the Complainant had paid a sum of Rs.3,78,000/- in the month of February 2014 to the Accused. Towards the discharge of amount borrowed, the Accused had issued a cheque sbearing No.081781, dtd.1.9.2014 for Rs.3,78,000/- drawn on Canara Bank, Madiwala branch, Bengaluru with a request to present the cheque for encashment and it would be honoured on its presentation.
3. It is further submitted that the Complainant has presented the said cheques for encashment before his banker Union Bank, Bengaluru. But, the said cheque was returned dishonoured with an endorsement "insufficient funds" on 3 C.C.No.383/2015 27.10.2014 and the same was brought to the knowledge of the accused.
4. It is further stated that as the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice to the accused on 25.11.2014 through his advocate by RPAD as well as under Speed Post, calling upon the Accused to make payment of the cheque amount within 15 days from the date of receipt of notice. But the notice sent through RPAD returned unserved with a shara " not claimed". The notice issued under Speed Post was duly served upon the Accused. The Accused inspite of knowledge of Legal Notice, has neither chosen to make payment of the cheque amount nor replied the notice by denying the transaction. The Accused knowing fully well that he had no sufficient funds in his bank account, had issued a bogus cheque and thereby the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
5. Soon after filing of the complaint, cognizance of the offence was taken. Matter was registered as P.C. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case. 4 C.C.No.383/2015 Summons was issued as against the accused. The accused appeared through his Counsel and he was enlarged on bail. Substance of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
6. The complainant got examined himself as PW1 and he got produced 5 documents Ex.P1 to Ex.P5, Ex.P5(a) and closed his side.
7. After closure of the complainant side evidence, Statement of the accused u/Sec.313 of Cr.P.C. was recorded. The accused denied the incriminating evidence in toto and chosen to lead his defence evidence. The Accused got examined himself as DW1 and got marked 1 document Ex.D.1 and closed his side of evidence.
8. Arguments heard. I have perused the entire records.
9. Now, the points that arise for my consideration are as under:
i) Whether the Complainant proves that the accused in discharge of legally enforceable debt, issued a cheque for total amount of Rs.3,78,000/-, which on presentation came to be dishonoured and he has failed to honour the notice and not paid the amount and thereby, committed offence u/Sec.138 of N.I. Act?5 C.C.No.383/2015
ii) What order?
10. My findings to the above points for consideration are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
:R E A S O N S:
11. Point No.1 :- In order to prove his case, the Complainant namely Sri Nagegowda entered into the witness-box and filed an affidavit in lieu of examination-in-chief and reiterated the complaint averments and got examined himself as PW-1 and also got marked documents Ex.P1 to Ex.P5. Per contra, the Accused got examined himself as DW1 and produced one document marked as Ex.D.1.
12. During arguments the learned Counsel for the Complainant has argued that the Accused obtained hand loan of Rs.3,78,000/- in February 2014 and towards discharge of the said amount, he issued the cheque in question for Rs.3,78,000/- dtd.1.9.2014 which on presentation came to be dishonoured for the reason "funds insufficient". So it is contended that after issuance of Legal Notice, the Complainant filed the present case against the Accused.
6 C.C.No.383/2015
13. It is argued that in order to prove his case the Complainant has produced in all 5 documents which support his case. He has also given oral evidence which is unopposed. Nothing was elicited in the cross-examination of PW1 to disprove his contention that he had lent Rs.3,78,000/-to the Accused and the Accused issued the disputed cheque which on presentation came to be dishonoured for the reason "funds insufficient". So, the requirements of Sec.138 of N.I. Act have been fulfilled. Though the Accused has led his evidence and stated that the cheque in question was given to Complainant for LIC premium, which was misused by him and filed a false complaint, but the said evidence given by Accused is unacceptable as same is not supported by any documentary evidence. So, the Accused by not eliciting facts from the cross-examination of PW1 and by not leading cogent and convincing acceptable evidence, failed to rebut the presumption u/Sec.139 of N.I. Act. Hence, Complainant prayed to convict the Accused. In support of his arguments, the learned Counsel for the Complainant relied upon the following rulings:
i) 2015 Cr.R. 535 (SC) T. Vasanth Kumar V/s. Vijaya Kumari
ii) 2017 Cr.R. 530 (Kar) C.N. Dinesha V/s. Smt. C.G. 7 C.C.No.383/2015 Mallika
iii) 2016 Cr.R. 503 (Kar) D.N. Devaraju V/s. B. Narayanagowda
iv) 2017 (1) DCR 195 Chuni Lal V/s. Indira Seth
v) 2002 Cri.L.J. 4392 Joseph Jose V/s. J.Baby P.P. Poothoppu & another
14. On the other hand, the learned Counsel for the Accused drawn my attention to the cross-examination of PW1 and argued that there is no specific date mentioned in the complaint with regard to date of advancement of money. In fact Accused has denied the entire transaction itself. The execution of cheque is not admitted. The Complainant has not produced any document as to how and when the amount of Rs.3,78,000/- was paid. Even same is not mentioned in the complaint also. It is not shown in income tax returns and income tax returns for the relevant year are not produced. Moreover, it is contended that the Legal Notice is not served upon the Accused.
15. He has contended that in the absence of convincing evidence, the case of the Complainant cannot be believed. Hence, he prayed to acquit the Accused. It is argued that the Accused has issued the cheque as premium for LIC policy. The Complainant has misused the same and filed this false complaint. The Accused 8 C.C.No.383/2015 elicited facts from the cross-examination of PW1, which improbabalize the case of the Complainant. Hence, he prayed to acquit the Accused. In support of his arguments , he has relied upon the following rulings:
i) 2014 AIR SCW 2158 John K. Abraham V/s. Simon C.Abraham & Another
ii) 2004 Cri.L.J. 4107 Nagisetty Nagaiah V/s. State of A.P.and another
iii) 2012 Accused 1409 (Bom) Mulchand Ramji Saiya V/s.
Premji Ratanshi Gangar & Another
iv) 2012 ACD 1072 (MAD)
T R Palaniswamy V/s. Hariharan
v) ILR 2007 KAR 2709 M. Senguttuvan v/s.
Mahadevaswamy
vi) ILR 2008 KAR 4629 Shiva Murthy V/s. Amruthraj
vii) 2012 ACD 1004 (Rajasthan) M.RChoudhary V/s.
State of Rajasthan & another
viii) 2012 ACD 1148 (Delhi) Pawan Singhal v/s. Gauri Shankar Deora & Another I have carefully gone through the principles of above rulings and applied the principles to the facts of the present case.
Keeping in mind the principles of above case, I have examined the evidence on record.
16. First of all, it is contended that the Legal Notice was not served upon the Accused. However, on perusal of cross- examination of Accused, he has clearly admitted that the address 9 C.C.No.383/2015 shown in Ex.P3 and the address shown in his affidavit in lieu of examination-in-chief are one and the same. Under such circumstances, it is abundantly clear that the notice was issued to the correct address of the Accused. So, the Accused cannot contend that the notice has not been served upon him. Hence, court has to draw an inference u/Sec.27of General Clauses Act, notice has been duly served upon the Accused. Hence, I am of the opinion that the contention of the Accused that the notice is not served upon him, is not tenable.
17. Secondly, on considering the entire evidence on record, it transpires that the complaint averments reveal that in February 2014 the Complainant lent an amount of Rs.3,78,000/- to the Accused for financial necessities and in discharge of said liability he issued the cheque Ex.P1 which on presentation came to be dishonoured for the reason "funds insufficient". It is true that as per Sec.139 of N.I.Act there is a presumption with regard to existence of debt or liability. But the said presumption is rebuttable presumption. The Accused can rebut the presumption by either leading defence evidence or by eliciting facts from the cross-examination of Complainant. Even Accused can raise the 10 C.C.No.383/2015 point that the cheque is not supported by any consideration amount.
18. Here in this case, the Accused has cross-examined the PW1 and it was suggested to PW1 that the cheque was issued for LIC policy. But the same is denied. However, the Accused has led evidence in detail and given evidence that he has not at all borrowed Rs.3,78,000/- from the Complainant at any point of time. In fact the Complainant is an LIC Agent and he had taken LIC Policy through Complainant. Same is admitted by Complainant in cross-examination. It is also deposed that the Complainant is also running a private chit business and he induced him to become member of the chit. He has stated that the Complainant has taken a blank cheque towards LIC premium and chit and misused the same by filing a false complaint against the Accused.
19. Along with evidence, he has produced Ex.D1 to show that he had given Rs.6,000/- to Complainant with regard to chit business. Though he was cross-examined, but it was elicited that the premium amount was being deducted in his salary. However, he has denied that as per Ex.D1 he had repaid an 11 C.C.No.383/2015 amount of Rs.6,000/- which was obtained from Complainant for urgent necessities. He has also denied that since the premium amount was being deducted in his salary, the question of giving a blank signed cheque to the Complainant did not arise at all. He has denied that though he has given the cheque for discharge of liability, now he is deposing falsely to escape from the liability to repay the loan amount.
20. If the above evidence is perused scrupulously along with the cross-examination of PW1, it is abundantly clear that he has deposed that there is no supporting document to Ex.P1 cheque. He is getting an income of Rs.20,000/- per month as an LIC Agent. Though he has stated that he is an Income Tax Assessee, he has not shown that Rs.3,78,000/-was paid to the Accused. Moreover, he has deposed that he lent Rs.3,78,000/- on 10.2.2014 which is not stated either in complaint or in his evidence.
21. It is human conduct that no one would keep such a huge amount in his house. But the Complainant has deposed that he had kept. Rs.3,78,000/- in his house, which seems to be unnatural. It is natural tendency of a man that if intended money 12 C.C.No.383/2015 is huge sum, he would keep the amount in the bank and give it to borrower either through Cheque/DD/E-transfer. But his evidence that he gave entire amount of Rs.3,78,000/- in one lump sum to Accused, seems to be unnatural and unbelievable. Moreover, his income is only Rs.20,000/- in which he has to run his family. His savings details are not produced. He has not produced any document to show as on the date of advancement of money, he had Rs.3,78,000/- with him. That apart, no one would lend such a huge amount without document or in the absence of witnesses. But in this case, there is no document supporting Ex.P1 and no witnesses were present to the transaction. Under such circumstances, if the evidence of Accused and the cross-examination of Complainant are conjointly read together, it makes the case of the Accused more probable.
22. Under such circumstances, I am of the opinion that the Accused has rebutted the presumption u/Sec.139 of N.I. Act. The Accused has brought before this court that Ex.P1 has not been supported by any consideration amount. He has shown before this court that the transaction is doubtful. There is nothing on record to show that as on the date of cheque, the Accused was 13 C.C.No.383/2015 due to the Complainant at Rs.3,78,000/-. Under such circumstances, I am of the opinion that cheque Ex.P1 is not proved to be issued for a legally recoverable debt or liability. So, all these circumstances go to show that the Complainant has failed to prove his case. Accordingly, I answer point No.1 in the Negative.
23. Point No.2:- In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (1) of Cr.P.C., the accused is hereby acquitted of the offence punishable u/Sec.138 of N.I. Act.
The bail bond and surety bonds of the accused stand cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 18th of September, 2017) (MADHVESH DABER) XIX ADDL.C.M.M., Bengaluru ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Sri Nagegowda Witnesses examined on behalf of the Accused: D.W.1 Sri Herur J.S. 14 C.C.No.383/2015 Documents marked on behalf of the Complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the Accused Ex.P.2 Bank endorsement Ex.P.3 Copy of the legal notice Ex.P.3(a) to Ex.P3(e) Postal Receipts Ex.P.4 & Ex.P5 Unserved Postal covers
Ex.P.4(a) & Ex.P5(a) Notices kept in the covers Documents marked on behalf of the Accused:
Ex.D.1 Bank Counter Foil
XIX ACMM, Bengaluru.