Bangalore District Court
Sri. B.Sudhindra vs Sri. V.Ambika Prasad on 27 November, 2015
IN THE COURT OF XVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated this the 27th day of November 2015
Present: Sri NAGARAJEGOWDA. D, B.Com., LL.B.,
XVI Addl. Chief Metropolitan Magistrate,
Bengaluru.
JUDGEMENT U/S 355 Cr.P.C.,
Case No. : C.C. No.23570/2011
Complainant : Sri. B.Sudhindra,
S/o B.Srinivasa Rao,
Aged about 29 years,
R/at No. 274/1, 1st Cross,
2nd Main, 2nd Block,
Thagrajanagar,
Bengaluru 560 028.
(By Sri..R.P & others Advs)
- VS -
Accused : Sri. V.Ambika Prasad,
S/o Varadraju
Aged about 29 years,
R/at No. 53, 3rd Main,
5th Cross, Lakshmanappa
Garden, Near Balaji Chaultry
III Stage, Bansahankari
Bengaluru 560 085.
(By Sri D.K.K.M & associates, Advs)
Date of Institution 20/11/2010
Offence complained of U/s 138 of N.I. Act
Plea of accused Pleaded not guilty
Final Order Accused is acquitted
Date of order 27.11.2015
2 CC 23570/11
J U D G M E N T
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.
The brief facts of the complainant case as per Ex.P17 reads as follows:-
2. The complainant and the accused are the friends, the accused approached the complainant on 2.8.2008 for borrowing a loan of Rs.7,28,420/- for the purpose of his business development. On the same day, the complainant lent the said amount, the accused agreed to return the said loan amount to the complainant within 1 year. After the lapse of one year, the complainant approached and requested to return the said amount and both of them have entered into a loan agreement dated 16.6.2010, wherein he had agreed to return the said amount on 15.8.2010. In pursuance of the said agreement, the accused issued a cheque bearing Nos. 755091, 755092, 755093, 755094, 755095 drawn on ICICI Bank, ground floor, 1st Commissariat Road, Bengaluru for the said loan amount accused had said to pay the remaining amount of Rs.28,420/- through cash on the same day and he advised the complainant to present the said cheques for encashment.
On 28.8.2010, the complainant had presented the said cheque for encashment through State Bank of Mysore, Banashankari branch, Bengaluru, but, the said cheques are dishonoured due to insufficient funds as per endorsements dated 30.8.2010 and 31.8.2010. Thereafterwards, the complainant got issued the legal notice dated 16.9.2010 to the accused, demanding the payment of the said cheque amount through RPAD and C.O.P. The notice sent through RPAD duly 3 CC 23570/11 served to the accused on 21.9.2010. As per the letter dated 28.10.2010, issued by the Postal Authority, the COP was duly served to the accused, inspite of service of notice, the accused did not reply or comply the notice and thus the accused has committed offence punishable under Section 138 of N.I. Act and punish the accused in accordance with law by awarding compensation to the complainant under Section 357 of Cr.P.C. in the ends of justice and equity.
3. The accused appeared before this court and contested the case of the complainant by denying the entire case of complainant at the time of recording of Plea of Accusation. In support of the case of the complainant, he adduced his side oral evidence as PW-1 by way of affidavit and got marked Ex.P1 to Ex.P22 and this PW-1 has been fully cross examined by the accused counsel and this complainant closed his side evidence.
4. Thereafterwards, the accused person examined u/s 313 statement, in which he totally denied the entire case of complainant. In support of the denial of the case of the accused, he led his side oral evidence as DW-1 on Oath. This DW-1 has been fully cross examined by the complainant counsel and thus accused also closed his side defence evidence.
5. I have heard the arguments of both the complainant and accused counsels on merit. In support of the case of the accused, the learned counsel for accused relied the following decisions reported in 2015 AIR SCW 64; III(2009) BC 659 (SC) and 2004(2) DCR 123. 4 CC 23570/11 Accordingly, he prays for acquittal of the accused in accordance with law.
6. In order to prove the case of the complainant, he adduced his side oral evidence as PW-1 by way of affidavit. In which, he reiterated the complaint contents and got marked Ex.P1 to P5 are the cheques alleged to be issued by the accused and identified the signatures of accused as Ex.P1(a) to P5(a). This issuance of cheques in favour of the complainant for discharge of legal liability has been disputed by the accused. Ex.P6 to P10 are the endorsements issued by the bankers to show that Ex.P1 to P5 the cheques were dishonoured due to 'funds insufficient'. Ex.P11 is the copy of legal notice. This notice does not contain the signatures of both the complainant and his counsel. Ex.P12 is the RPAD postal receipt. Ex.P13 is the UCP receipt. Ex.P14 is the letter addressed to the post master about non return of the postal acknowledgement. For that, postal authority has been issued letter as Ex.P15 letter. Ex.P16 is the settled reply to show that the legal notice served to the accused. Ex.P17 is the complaint is under dispute. Ex.P18 is the Salada Kararu Pathra. Taken between the complainant and the accused and identified the signatures of both the complainant and accused as Ex.P18(a) and 18(b). Ex.P19 is the another Salada Kararu Pathra taken on 16.6.2010 between the complainant and the accused through these Salada Kararu Pathra Ex.P1 to P5 cheques issued in favour of the complainant and identified the signatures of the accused and the complainant as Ex.P19(a) and 19(b). In order to prove the contents of these agreements, the complainant has not examined any one witnesses who put the signatures as witnesses to the documents. Ex.P20 is the copy of FIR lodged against this complainant. Ex.P21 is 5 CC 23570/11 the copy of complaint lodged by the accused against the complainant. After investigation, the Police Officer submitted 'B' report as per Ex.P22. As per these documentary evidence, the complainant and others threatened the accused and demanding for the payment of the amount, but, in this complaint it is not mentioned how much amount is due towards this complainant and accused. Hence, the case of the complainant crates doubt.
7. The accused appeared before this court and contested the case of the complainant by denying the entire case of complainant. In support of his denial, the accused led his side oral evidence as DW-1 on Oath. In which he has stated that both the complainant and the accused working in Conveys Software Company, but, he has denied that himself along with others made galata against this accused for final settlement between them. Further it is stated that one Praveen kumar lodged the complaint to the Chennammanakere Acchukattu Police and the legal notice sent to this accused did not served in order to show that he is residing some other address for that got marked Ex.D3 is the Identity Card issued by the Election Commission and also form for registration of M/s Convesys Company marked as Ex D4 and M/s Convesys Company Registration Attested Certificate as Ex D5. Further he has stated that the credit and debit card and also signed blank cheques were theft by the complainant and misusing the same and filed this case against the accused, etc. This DW-1 has been cross-examined by the complainant counsel. In the cross examination, the accused obtained loan amount as per the case of the complainant for the purpose of business development, but, he denied that his brother name is Praveen Kumar, he lodged the complaint against this 6 CC 23570/11 complainant before the Chennammana Achukattu Police Station and he was voluntary stated that he do not file any complaint about theft of debit and credit card along with signed blank cheques, except total denial of the contention of the accused, the complainant failed to produce any documentary evidence and also he has not pleaded in the complaint the amount given to the accused, how it is comes to this complainant, because, the accused counsel cross examined PW-1. In the cross examination, he trying to elicit that the amount given to this accused is obtained from his father an amount of Rs.4 lakhs and remaining amount is with him. After collecting the said amount is given to this accused. In support of his contention the complainant is not examined his father to show that his father has paid Rs.4 lakhs to this complainant and he do not know if normal person do not paid loan amount of Rs.7,28,420/- or Rs.7,78,430/- etc. For that he pleaded ignorance. At the time of giving loan to this accused has not obtained any documentary evidence, except he obtained alleged cheque in question. The alleged cheques are issued by the accused with an intention to avoid the tax problem etc. and he admitted that at Ex.P18 and P19 documents are written on the same date and he denied that he has no capacity to pay the huge amount of Rs.7,28,420/- to this accused. At the time of cross examination of PW-1, he got marked Ex.D1 is the Credit Card stands in the name of accused at ICICI Bank. Ex.D2 is the Credit Card Statement of the ICICI Bank to show that the accused had got sufficient amount with him and there is no need to obtain any loan amount from the complainant etc. In support of his contention, the learned counsel for the accused relied the following decisions reported in: 7 CC 23570/11
2015 AIR SCW 64 (K.Subramani Vs. K.Damodara Naidu). Wherein it is held that:
"Negotiable Instruments Act (26 of 1881), S.138 - Dishonour of cheque - Complaint - Finding by trial court on consideration of entire oral and documentary evidence - That complainant had no source of income to lend sum of Rs.14 lakhs to accused - He failed to prove that there is legally recoverable debt payable by accused to him - Acquittal of accused, was proper - Order by High Court remanding case for retrial. - Liable to be set aside".
III(2009) BC 659 (SC)(Thomas Vs. Jaleel) Wherein it is held that:
" Negotiable Instruments Act, 1881 - Section 138 Proviso (b) - Dishonour of cheque - Notice of demand served upon wife of appellant and not appellant - Not sufficient compliance of Section 138, Provision
(b) of Act - High Court overlooked this important lacuna in complainant's case - Connection of appellant unsustainable - Set aside
- Order of acquittal passed by trial court restored.".
2004 (2) DCR 123 (Abdul Raheem Vs. U.P.K Mohammed Haneefa) Wherein it is held that:
" Negotiable Instruments Act, 1881 - Section 138 and 139 - Dishonour of cheque - Several disputes between complainant and accused throw serious doubts on claim of complainant - Court justified in raising doubts on advancement of hand loan and whether there is any legally enforceable debt" - In appeal against acquittal High court would be slow to interfere with acquittal - Unless High Court satisfied
- That reasoning for acquittal are palpably wrong and unsustainable - High Court would not interfere with acquittal - Reasoning of acquittal by trial in conformity with evidence and material - No reason to reverse acquittal".
8. On the basis of the aforesaid decisions coupled with the defence taken by the accused are clearly establishes that the case of the accused to show that the complainant not at all having capacity to pay the huge amount to this accused and for repayment of the said 8 CC 23570/11 amount, the accused did not issued any cheques etc. Under such circumstances, the accused had given rebuttal evidence to the case of the complainant, the complainant failed to prove the alleged guilt of the accused beyond all reasonable doubt. Hence, benefit of doubt goes to accused. Hence, the accused is entitled for acquittal. Accordingly, I proceed to pass the following:
ORDER Acting u/s 265 of Cr.P.C., the accused is acquitted from the alleged offence punishable u/s 138 of Negotiable Instruments Act.
Accused is set at liberty. His bail bond and surety bond shall stand cancelled.
(Dictated to the stenographer, transcript thereof is computerized and printout taken by him, and then verified, and then pronounced by me in open Court on this the 27th day of November 2015).
(NAGARAJEGOWDA.D), C/C XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 B.Sudhindra List of documents exhibited on behalf of the complainant:
Ex.P-1 to P5 Original Cheques
Ex.P-1(a) and P5(a) Signatures of accused
Ex.P-6 to P10 Bank Memo
Ex.P-P11 Copy of legal notice
Ex.P-12 Postal Receipt
Ex.P-13 UCP
Ex.P-14 Letter
9 CC 23570/11
Ex.P-15 Letter
Ex.P16 Settled reply
Ex.P17 Original complaint
Ex.P18 Salada Kararu pathra
Ex.P18(a) & 18(b) Signatures of accused and complainant
Ex.P19 Salada Kararu pathra
Ex.P19(a) & 19(b) Signatures of accused and complainant
Ex.P20 FIR
Ex.P21 Complaint lodged by Praveen Kumar
Ex.P22 'B' report
List of witnesses examined on behalf of the accused:
DW-1 Ambika Prasad List of documents exhibited on behalf of the accused:
Ex D1 Credit card statement
Ex D2 Credit card billing
Ex D3 Voter ID card
Ex D4 Form for registration attested certificate
C /C XVI ACMM., Bengaluru.