Bangalore District Court
Against The Accused For The Offence vs To Meet Out His Domestic Commitments Has on 4 September, 2018
1 CC.11811/2011 (J)
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 04th day of September-2018
Present: Subhash.B.Hosakalle.
B.Com.,LL.B (Spl)
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.11811/2011
2.Name of the Complainant: Sri.D.Nagaraja,
S/o.Late Doddaiah,
Aged about 43 years,
No.1266, 9th Main,
12th Cross, West of Chord Road
Mahalakshmipuram,
Bengaluru - 560 086.
3.Name of the accused: Sri.Chikke Gowda D.T.,
Aged about 41 years,
No.64, Beereshwara Nilaya,
4th Cross, 6th Block Annex,
Church Street,
Rama Temple Road,
Koramangala,
Bengaluru - 560 095.
And also residing at:
Sri.Chikke Gowda D.T.
S/o.Late Thamanna Gowda,
Dodda Beerana Kere village,
Mayasandra (Hobli),
Turuvekere (Taluk)
Tumkur (District).
2 CC.11811/2011 (J)
4.The offence complained of U/s.138 of Negotiable
: Instruments Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(1) Cr.P.C.,
Accused is Acquitted.
7.Date of final Order 04th day of September-2018.
***
This complaint is filed U/Sec.200 of Cr.P.C., by the
complainant against the accused for the offence
punishable U/Sec.138 of the Negotiable Instruments Act,
1881.
The facts in brief is as under.
2. That the complainant and the accused are
relatives and well acquainted with each other. Thus, the
accused to meet out his domestic commitments has
approached the complainant for a hand loan of
Rs.1,95,000/-. During the second week of April-2010 the
complainant has arranged funds from his savings and
given to the accused. It was agreed to repay the loan
amount within six months with interest @ 18% per annum.
The accused towards the discharge of legally enforceable
debt or liability has issued a cheque bearing No.016029,
3 CC.11811/2011 (J)
dated 29.10.2010, drawn on Kalidas Co-oprative Bank
Limited, Karnataka Pradesh Kurubara Sangha Building,
2nd Main, Gandhinagar, Bengaluru-09 for a sum of
Rs.1,95,000/- in favour of the complainant.
3. The complainant presented the said cheque for
encashment purpose through his Banker by name State
Bank of India, Helicopter Division branch, Bengaluru, on
21.01.2011. It was dishonored with an endorsement of
"Funds Insufficient" on 22.01.2011. Accordingly on
10.02.2011 the complainant has issued a legal notice to
the accused at his both address calling upon him to repay
the cheque amount of Rs.1,95,000/-. According to the
complainant the notice sent by RPAD to Bengaluru address
returned with an endorsement of 'not claimed' and whereas
the notice sent by RPAD to village address of the accused
was duly served on him on 27.02.2011. It is contended
that the accused replied to the notice nor paid the cheque
amount. Accordingly he committed an offence punishable
U/s.138 of the N.I.Act. It is prayed to punish the accused.
4 CC.11811/2011 (J)
4. After the institution of the complaint
predecessor of this Court has registered it in PCR
No.6466/2011 and took cognizance of the offence. The
sworn statement of the complainant was recorded and on
the basis of the sworn statement and other materials on
the hand the criminal case has been registered against the
accused and issued summons to the accused. In response
to the summons the accused put his appearance through
his learned counsel and got enlarged on bail. The
prosecution papers were supplied to the accused and his
plea was recorded. The accused denied the plea and
claimed for trial.
,
5. During trial the complainant was examined as
PW.1 and got marked Ex.P.1 to P.8. As a defence evidence
accused was examined as DW-1 and on his behalf DW-2
and DW-3 were examined and got marked Ex.C.1 and C.2.
6. I have heard both learned counsels appearing for
both parties, perused the entire materials and the following
points would arise for my consideration.
5 CC.11811/2011 (J)
1. Whether the complainant proves that
the accused towards the discharge of
legally enforceable debt has issued
the cheque for a sum of
Rs.1,95,000/- and on its
presentation for encashment purpose
it was dishonored with an
endorsement of "Funds Insufficient"
and thereby the accused has
committed an offence punishable
U/Sec.138 of N.I. Act, 1881 ?
2. What order?
7. My answers on the above points for
consideration are as under.
Point No.1 : In the Negative
Point No.2 As per final order for the following:-
REASONS
8. Point No.1:- It is necessary to state that on
09.02.2015 this case had been disposed of by convicting
the accused with a fine amount of Rs.2,05,000/-. The
accused who aggrieved by the said Judgment has preferred
Criminal Appeal No.364/2015 and wherein he questioned
the Judgment dated 09.02.2015. As per records the said
6 CC.11811/2011 (J)
Criminal Appeal was allowed and the Judgment had been
set-aside and matter had remanded to this Court with a
direction to consider the application moved by the accused
U/s.45 of the Indian Evidence Act. It is further directed to
refer the Ex.P.1 the cheque for handwriting expert.
9. As per materials the complainant who has
aggrieved by the order passed in Criminal Appeal
No.364/2015 had preferred Criminal Revision Petition
No.170/2016 before the Hon'ble High Court of Karnataka
Bengaluru. The said petition was came to be rejected by
the order dated 18th January-2017. The Hon'ble High
Court of Karnataka, Bengaluru in its order para No.8 made
observation that, parties are directed to appear before the
Magistrate Court and the Magistrate is directed to consider
and to dispose of the matter afresh after obtaining the
report from the handwriting expert about the allegation
made by the Respondent/Accused regarding the alterations
of figures 1 & 9 in Ex.P.1 cheque.
7 CC.11811/2011 (J)
10. As per the direction of the Hon'ble High Court of
Karnataka, on 28.10.2017 as per the application filed by
the accused referred the alleged cheque marked at Ex.P.1
to the handwriting expert to obtain the opinion as per
observation made by the Hon'ble High Court as stated
herein above. Accordingly on 05.06.2018 report has been
received. The complainant has filed objection to the
reports submitted by the handwriting expert. As the
complainant has disputed the handwriting expert report.
The witness summons was issued to the handwriting
expert and called upon him to give an evidence.
Accordingly the said expert by name Phaneendra.B.N. was
examined as DW-3 and got marked the Ex.C.1 and C.2.
Thereafter the Court has heard the argument of both
parties and taken up this matter for disposal.
11. The complainant was examined as PW-1. He
filed his affidavit on oath as examination in chief. I have
gone through his examination-in-chief and wherein he has
been deposed as per the averments made in the complaint.
8 CC.11811/2011 (J)
The complainant in support of his oral evidence and claim
made in the complaint has got marked the Ex.P.1 to P.8.
12. I have perused the Ex.P.1 to P.8. The Ex.P.1 is a
cheque dated 29.10.2010 for alleged sum of Rs.1,95,000/-
and Ex.P.1(a) is the signature of the accused, Ex.P.2 is the
cheque return Memo dated 22.01.2011, Ex.P.3 is the Bank
Memo, Ex.P.4 is the office copy of legal notice dated
10.02.2011, Ex.P.5 and P.6 are the postal receipts for
having sent the legal notice to the accused through
registered post, Ex.P.7 acknowledgement card for due
service of legal notice on the accused and Ex.P.8 is the
postal envelope through which the notice was sent to the
accused.
13. On perusal of the exhibits produced by the
complainant which reveals that within a statutory period
as provided under the Act, the complainant has presented
the cheque for encashment purpose and after dishonor of
cheque the complainant has caused legal notice to the
accused within 30 days through registered post. Regarding
9 CC.11811/2011 (J)
service of legal notice the accused himself admitted in his
cross-examination that by stating that: £À£ÀUÉ ¦gÁåzÀÄzsÁgÀ£À
ªÀQîjAzÀ £ÉÆÃn¸ï §A¢gÀÄvÀÛzÉ. ¸ÀzÀj £ÉÆÃn¸À£ÀÄß £Á£ÀÄ ¹éÃPÁgÀ ªÀiÁrgÀÄvÉÛãÉ.
¸ÀzÀj £ÉÆÃn¸ÀUÉ £Á£ÀÄ GvÀÛgÀ PÉÆnÖgÀĪÀÅ¢®è. This admission by the
accused furnishes best evidence regarding due service of
statutory notice on the accused. Thus, from the above
events it can be seen that the complainant has fulfilled the
ingredients of Section 138 of the N.I.Act. Further it is clear
that the complainant well within the time has filed this
complaint.
14. The learned counsel appearing for the
complainant vehemently submitted in his argument that
the evidence of handwriting expert i.e., DW.3 is not reliable
and whatever opinion given by him was in collusion with
the accused and that would not come in the way of
complainant. He further submitted that no alleged over
writing find place in the cheque on which the complainant
has placed his reliance. He further submitted that the
accused failed to rebut the statutory presumption as
10 CC.11811/2011 (J)
available U/s.118 and 139 of the Act. The said counsel
prayed to allow the complaint and punish the accused as
per the provision of Section 138 of the N.I.Act. In support
of said point of argument the said learned counsel has
placed his reliance upon the accused reported in 2014
STPL (DC) 1549 - Karnataka High Court (Dharwad Bench)
Sripadh V/s.Ramadas Shet, 2012 STPL (DC) Page No.650 -
Karnataka High Court Smt.Umadevi Kumar
V/s.Govardhandas, 2013 STPL (DC) Page No.1597 Madras
High Court - N.Jebarathinam V/s.R.Ramar, 2014 STPL
(DC) Page No.1590 Madras High Court - T.N.Velmurguan
V/s.Ajash Cotton Spinning Mills Pvt. Ltd and others, 2014
STPL (DC) Page No.345- Jharkhand High Court - Niyaz
Ahmed V/s.State of Jharkhand and another and 1996
Crl.L.J. Pate No.3099 Gujarath High Court - Satish
Jayanthilal Shah V/s. Pankaj Mashruwala and another.
Further the learned counsel for the complainant files Memo
with list of documents in support of two arguments.
11 CC.11811/2011 (J)
15. The learned counsel appearing for the accused
vehemently submitted in his argument that the
complainant in order to deceive the accused forged the
cheque marked at Ex.P.1. He further submitted that the
complainant for his wrongful gain made material alteration
in the figures pertain to the alleged amount. That the
provision of Section 87 of N.I.Act aptly applicable. That the
material alteration has not been consented by the accused
counsel. That the material alteration has not been
authenticated by the drawer of the cheque. That the
observation made by the handwriting expert is fully
supported by the materials placed on record. The Ex.P.1 is
void in law and it is unenforceable the said learned counsel
submitted the penal provision of Section 138 of the N.I.Act
would not attract against the accused and he is deserved
for acquittal. In support of his argument he placed
reliance upon the decision reported in ILR 2016 KAR Page
No.3111- B.Krishna Reddy V/s.B.K.Somashekar REddy,
Judgement delivered on 17.02.2012 in Criminal Appeal
No.2218/2006 - K.M.Nagaraj V/s.T.C.Govindegowda,
12 CC.11811/2011 (J)
Judgment rendered on 19.03.2018 in Criminal Appeal
No.418/2010 - A.P.Ameethkumar V.S.A.P.Manjunath,
Judgment dated 23.01.2015 in Crl. Revision Petition
No.435/2014 Sri.P.L.Thamanna V/s.Sri.D.G.Rohith and
Judgment dated 19.03.2018 the said learned counsel for
the accused by placing reliance upon the said decision
submitted that complaint is required to be dismissed and
acquit the accused to meet the ends of Justice and equity.
16. Having regard to the point of argument, I have
gone through the pleading and entire materials placed on
record by the parties to the complaint. With due respect I
have gone through the decision placed on record by both
the parties.
17. The specific plea of the complainant is that the
accused towards the discharge of legally enforceable debt
of Rs.1,95,000/- has issued a cheque which has been
marked at Ex.P.1. The main defence of the accused is that
the complainant has altered the figure appearing in the
alleged cheque and presented it through his bankers for
13 CC.11811/2011 (J)
his wrongful gain. In this connection, the handwriting
expert by name Phaneendra has been examined as DW-3
on behalf of the accused. He has spoken that, ¤±Á£É ¦.1
ZÉPÀÌ£ÀÄß £Á£ÀÄ ¥ÀjÃPÉë ªÀiÁr £ÉÆÃrgÀÄvÉÛãÉ. gÀÆ.1,95,000 /- amount £À°è 9
EzÀ£ÀÄß alteration ªÀiÁrgÀĪÀÅzÀÄ PÀAqÀÄ §gÀÄvÀÛzÉ. This witness in his
cross has stated that, £À£Àß C©ü¥ÁæAiÀÄzÀ°è gÀÆ.1,95,000/- EzÀgÀ°è 9
CAQUÉ ¸ÀA§AzÀs¥ÀlÖAvÉ '0' EzÀÄ ¨ÉÃgÉ ±Á» ªÀÄvÀÄÛ §gÀºÀzÀ°è EgÀĪÀÅzÁV £À£Àß
C©ü¥ÁæAiÀÄ JAzÀgÉ ¸Àj. The version of DW-3 has been
corroborated with Ex.C.1 and C.2 which consist report
submitted by the handwriting expert. Under the light of
undisputed evidence and report of handwriting expert, I
have perused Ex.P.1 the alleged cheque. On plain perusal
of the alleged figure of Rs.1,95,000/- which appears in the
cheque, it can be said that there is material alteration
pertain to numeric '1' and '9'.
18. The complainant has proved by producing
material evidence that there is material alteration
regarding alleged amount of Rs.1,95,000/-. This attracts
14 CC.11811/2011 (J)
the provision of Section 87 of the N.I.Act, 1881. As the
accused has proved with material evidence that there is a
material alteration in the alleged cheque of Ex.P.1 on
which the complainant has placed his reliance. In view of
the undisputed evidence instrument produced by the
complainant is void. Therefore, the decision produced by
the accused is aptly applicable to the case on hand.
Whereas the decisions produced by the complainant would
not come to his rescue.
19. In view of the reasons assigned herein above, I
am of the considered opinion that, the accused is
succeeded in rebutting presumption as provided U/s.118
and 139 of the Act. Therefore, the penal provision of
Section 138 of the N.I.Act would not attract against the
accused. Hence the accused is not guilty for the offence
punishable U/s.138 of the N.I.Act. Hence, I proceed to
answer the Point No.1 in Negative.
20. Point No.2 : In view of the reasons assigned on
Point No.1, I proceed to pass the following:-
15 CC.11811/2011 (J)
ORDER
As per the provisions of Sec.255(1) Cr.P.C. the accused is hereby Acquitted for the offence punishable u/s.138 of NI Act, 1881. The Personal bond and the surety executed by the accused and surety are hereby stands cancelled. The accused is set at liberty forthwith.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 04th day of September-2018.) (Subhash.B.Hosakalle) XV Addl. CMM., Bangalore.
ANNEXURE Witnesses examined for the Complainant:-
PW.1 D.Nagaraja Documents marked for the Complainant:-
Ex.P.1 Original cheque. Ex.P.1a Signature of the accused. Ex.P.2 Bank endorsement.
Ex.P.3 Bank Memo.
Ex.P.4 Legal Notice.
Ex.P.5 & P.6 Two Postal receipts.
Ex.P.7 Postal acknowledgement card.
Ex.P.8 Postal envelope.
16 CC.11811/2011 (J)
Witnesses examined For Defence:-
DW-1 Chikkegowda.
DW-2 H.M.Indrakumar
DW-3 Phaneendra
Documents marked for Defence:- Nil.
'C' series documents:-
Ex.C.1 Report.
Ex.C.2 Covering Letter.
(Subhash.B.Hosakalle) XV Addl.CMM., Bangalore. 17 CC.11811/2011 (J) 04.09.2018 (Judgment Pronounced in the Open Court Vide Separate Order sheet ORDER As per the provisions of Sec.255(1) Cr.P.C. the accused is hereby Acquitted for the offence punishable u/s.138 of NI Act, 1881.
The Personal bond and the surety executed by the accused and surety are hereby stands cancelled. The accused is set at liberty forthwith.
(Subhash.B.Hosakalle) XV Addl.CMM., Bangalore.
18 CC.11811/2011 (J)