Bangalore District Court
Sri vs Sri B.Chandrashekar on 15 May, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 15th day of May, 2015
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C No. 13738/2014.
Complainant : Sri., Kumari Nethravathi Umesh
Rao, D /o Umesh Rao, aged about
27 years, R/at No.28/4, 15th cross,
Behind JP Park Muthyalanagar,
Bandeppa Garden, Jalahalli village,
Bangalore.
(By Sri.V.G.Manjunath, Adv.)
Accused : Sri B.Chandrashekar,
Father of Sri Praddep.C.,
Prop:of Halli Thindi ,
R/at No.35, " Avinash Flat G", 3rd
floor, C G Chinnappa Naidu layout,
Banashankari 3rd stage,
Bangalore.
(By Sri.K.Diwakara, Adv.)
Date of Institution : 11-11-2013.
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is Convicted.
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Date of Order : 15-05-2015.
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.
R E A S O N S.
As per Ex.P14 complaint , the complainant contended that both
accused and his son are acquaintance with the complainant from the
past several years as accused son by name Pradeep .C. and complainant
are known to each other when the complainant was working in Srinidhi
Nursing College, Banasawadi. At that time, Pradeep .C. has introduced
himself on behalf of M/s. Osiershoft Technologies and working together
to develop a website for complainant working college. After some time
the said Pradeep .C. became close to the complainant and he
approached the complainant would like to marry the complainant . The
said Pradeep .C. with his parents approached the complainant parents
to speak about the marriage. The complainant parents resides at
Hassan town gave their consent for the marriage. Both family members
have agreed mutually for the marriage. The complainant further
submits that the said Pradeep .C. changed the address of the
complainant for the Driving License from her parental address i.e. Sree
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Hari Nilaya ., Opp. Ganesha temple, Indira nagar, Satyamangala layout,
Hassan to accused and Pradeep .C. address i.e.,# 35. "Avinash" Flat-G,
3rd floor CG Chinappa Naidu layout, Bangalore where accused and his
son Pradeep .C. are residing till date. Further submits that accused and
C.Pradeep decided to buy property at Seegehalli village KR PUram
HObili, Bangalore East Tq., bearing No.44,45, 46, Khatha No.1299, and
1300 measuring 3600 sq.ft which was stand in the name of Sri
T.K.Raghavendra and paid a sum as advance to the vendor of the
property and was unable to arrange the rest of the money to clear the
entire money to purchase a flat. At that time, both accused and the son
have approached the complainant and parents for their help. Both
accused and his son have planned to obtain loan from the bank for the
purpose of purchasing the property and also approached the
complainant to submit the complainant's documents for the reason that
the property going to be registered in the name of complainant believing
their words complainant handed over her personal documents to the son
of accused . Further Sri Pradeep C along with his friends Mr.Akshay
Avinash Aparanji and Mr.Chethan Manjunath colluded with each others
made some illegal document to obtain loan from the bank. After
submission of illegal document by the accused son to the Manager of
Saraswsat Co-operative Bank sanctioned a sum of Rs.30,00,000/- and
registered a flat in the name of complainant before Sub-Registrar, KR
4 CC No.13738/2014
Puram on 8-10-2010. The accused son has accompanied with the
complainant on registration day till completion of the registration and
signed as a witness on the sale deed on that day also the son of accused
has not shown property to the complainant which was registered in the
name of complainant.
2. The complainant further submits that both accused and his son
have approached the complainant and her parents to lend some money
to invest in Hotel business as the accused is running for the short of
money. The complainant and her parents believed the words of accused
and his son and the son is going to marry the complainant . For that the
complainant and her parents have agreed to pay to the accused Rs.Five
lakhs as hand loan by way of cash. The accused had received the said
amount by way of cash accompanied by the son of accused. It is further
submitted that the son of accused has approached the accused to
purchase a Car for his own use . For that, amount will be mobilized to
purchase the same. It is impossible for him at that time, the accused
and his son both requested the complainant to furnish the personal
document to avail loan from the bank. The complainant believed the
words of accused and his son furnished entire personal document to
them. By using the said document and obtained loan from Kotak
Mahendra Prime Ltd. The said bank sanctioned Car loan in the name of
complainant to buy the Volkas Wagon Polo Car bearing No.KA-03 MP
5 CC No.13738/2014
4171 for the purpose of family of the accused and till today kept it in the
custody of accused and his son Pradeep .C. The complainant blindly
believed the accused and his son and signed the document and blank
cheques and handed over to the accused and his son. The accused and
his son misused innocence of complainant. On 2-6-2012 Upparpet
police has comes to the accused residence in search of complainant.
The accused and his son brought the police to the complainant
residence at Basavanagudi where she was staying in the rented house .
At that time, the Upparpet police took the complainant along with the
said Pradeep to the P.S. in their vehicle . Later and their only the
complainant came to know that the said pradeep submitted illegal
document to Saraswat Co-Op. Bank and obtained Housing Loan along
with his aforesaid source. For the investigation and support taken from
them the accused and his son have agreed and prepared the fake and
illegal document submitted to the bank and obtained the loan from them
without the knowledge and intimation of the complainant. It is further
submitted that the police was arrested the complainant on 2-6-2012 . At
that time, the complainant came to know that the son of the accused
has threatened the complainant not to reveal any true facts before the
police and the parents and further threatened the complainant that he
would cancel the marriage if the complainant reveals the fact . In that
fear, the complainant had not reveal the facts before the police or to the
6 CC No.13738/2014
parents as well as police have sent the complainant to the J.C. for 25
days if any fault of her.
3. It is further case of complainant that accused agreed and came
to compromise the matter that the complainant will be the daughter in
law of the accused and both are assured that the marriage dated will be
fixed shortly like that all of a sudden the complainant came to know
that on 27-4-2013 the accused son is getting married to some other girl
on 29-4-2013 . The complainant's mother contacted the son of accused
through phone and asked about the marriage. For that he confirmed
the same and agreed to settle all the liabilities in the name of
complainant. Again on 28-4-2013 the complainant and her family
members had come to the house of accused . At that time, both accused
and his son had requested the complainant not to discuss before the
family members i.e. his daughter in law and wife of the Pradeep. Both
the accused and his son have told the complainant and her family
members to sit together at Hotel of accused and settle the matter and
after the discussion the accused and his son have agreed to repay hand
loan of Rs.Five lakhs and also agreed to pay the property loan obtained
from the said bank. The accused has agreed and issued 3 cheques to
complainant to clear all the dues and also they have agreed to execute
an agreement on 4-5-2013 for all he above said dues and for the
clearance of Car loan and also property loan. Both accused and his son
7 CC No.13738/2014
have agreed to clear the hand loan obtained from complainant. Further
both accused and his son have agreed to take care of criminal case and
hand loan obtained by both of accused and his son Sri Pradeep C.
Further also agreed to pay dues with respect of property and also car
loan. Accused son taken the aforesaid car and it is in the custody of the
accused son. Though it was purchased in the name of complainant .
Hence, complainant is not liable to pay bank loan and car loan to the
banks etc.. When the complainant asked the accused and his son to
clear the bank dues and hand loan received from the complainant. At
that time, accused questioned the complainant to bring back the
cheques collecting the money . Again believing the words of the
complainant along with her brother by name Srinivas Prasad came to
the house of accused . When the complainant and her brother entered
the house of accused before asking anything immediately both accused
and his son went to Chennammanakere Achhukattu police station and
lodged the police complaint against them stating assaulted wife of
accused but complainant has not done anything as they told before the
police. For that the police people directed and advised both the parties
not to file false complaint against the complainant, because there is no
incident or talks occurred on that day. The complainant has liberty to
recover the loss from both of accused and his son . Both the accused
and her son have breached the contract between the complainant and
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accused. The complainant also has liberty to file separate suit for
damages .The accused and his son failed to carried out the liability of
clear the dues and repayment of the hand loans received from
complainant, then the complainant lodged the complaint to the
Yashwanthpur police in Crime No.344/2013 on 14-7-2013 for the
offences punishable u/s.506, 34l 419, 420, 471, 468 of IPC. The said
case is pending before 1st ACMM., Bangalore. The complainant
contacted the bank and got a letter from bank they have sent foreclosure
report letter to complainant's email the loan amount of Rs.5,74,286/-
due by the complainant upto 27-8-2013. Likewise complainant
presented the cheque on 28-8-2013 for the above said car loan amount
due by the accused . The accused voluntarily issued a cheque for
clearance of the car loan amount ,the cheque bearing No.511552 dated
28-8-2013. The complainant presented the said cheque through her
bankers, same is returned unpaid with an endorsement to that effect"
Funds insufficient". Thereafter on 28-9-2013 and 29-9-2013
complainant got issued legal notice to the accused for payment of the
cheque . Legal notice was sent through RPAD and speed post to the
accused residence addresses. RPAD cover returned with shara "not
claimed and speed post cover was served to the accused. After service of
notice, accused failed to pay the cheque amount but he issued a reply
and he has taken contention and also defamatory statement against the
9 CC No.13738/2014
complainant, it is also prosecuted under criminal liability etc. but the
accused did not comply the terms of notice and thus committed the
offence punishable u/s.138 of NI Act and punish the accused in
accordance with law by awarding compensation to the complainant
u/s.357 of Cr.P C in the ends of justice and equity.
4. Accused contest this case. In order to prove the case of
complainant, the complainant adduced his oral evidence as PW-1 and
got marked Ex.P1 to 17 and PW-1 has been fully cross examined by the
accused counsel and thus the complainant closed her side evidence.
Thereafter wards the statement of accused u/s.313 of Cr.PC was
recorded. In which, he totally denied the entire case of the complainant
and in support of his denial, he took time to lead his defence evidence
but inspite of sufficient opportunity has been given , he did not chose to
lead his defence evidence.
5. I have heard the arguments on both complainant and accused
counsel.
6. In support of the case of complainant, the Ln.counsel for
complainant relied on the following decisions reported in :-
1999 Crl.L.J. 1349
(2002)6 SCC 426
2009 Crl.L.J. (Noc) 574 (Bom)
10 CC No.13738/2014
Accordingly, prays for convict the accused in accordance with law.
7. In support of the case of accused, the Ln.Counsel for
accused produced Newspaper cutting reported in HINDU on Monday
Sept.22, 2014-page -10 with captions- Tampered e-records can lead to
travesty of justice:SC. Accordingly, Ln.counsel for accused prays for
acquitting the accused in accordance with law.
8. In order to prove the case of complainant, complainant
adduced her side oral evidence as PW-1 by way of affidavit. In which,
she reiterated the complaint contention and got marked Ex.P1 cheque
alleged to be issued by the accused and identified signature of accused
as Ex.P1(a) . This cheque is belongs to the accused, the same is
admitted by the accused and also signature found on the cheque is also
belongs to him and the same is issued as a Prop: of Halli Thindi.
Though accused denied the issuance of the said cheque in favour of
complainant for discharge of legal liability but contrary to his denial ,
he has not produced any contrary evidence to support his defence.
Further got marked Ex.P2 endorsement issued by the bankers stating
that Ex.P1 cheque is dishonoured due to "Funds insufficient". Ex.P3 is
the copy of legal notice has been sent to the accused to his both
addresses as per Ex.P4 and 5 and postal RPAD receipt and the said
notice sent by speed post was duly served as per Ex.P6 is the speed
11 CC No.13738/2014
post acknowledgement but it contains the signature of accused person.
RPAD sent to the accused son Pradeep is returned with postal shara
"not claimed" as per Ex.P7 postal cover with the notice as per Ex.P7(a).
Ex.P8 is the certified copy of the complaint lodged by the complainant
against the accused and his son on 14-7-2013 before the Yashwanthpur
police for the cheating. Further got marked Ex.P9 C C of FIR in Crime
No.0344/13 in which, the police have registered a case against the
accused and his son and others for the offence punishable u/s.506, 34,
419, 420, 471 k, 468 of IPC. Further got marked Ex.P10 is the C C of
chargesheet submitted by the police against son of accused and accused
and one Smt.Vasanthi , wife of accused. Further got marked Ex.P11 is
the certified copy of M¥ÀàAzÀ PÀgÁgÀÄ ¥ÀvÀæ taken between the complainant and
accused and his son on 4-5-2013 . As per this agreement, the accused
and his son agreed to repay the loan amount borrowed from the
complainant and identified the signature of complainant and accused as
Ex.P11(a) and Ex.P11(b). Ex.P12 is reply notice dtd. 28-10-2013 issued
on behalf of accused in which, the accused denied the entire case of
complainant parawise and at the end of his reply notice he contended
that " ... my client is not liable to pay the cheque amount of
Rs.5,74,268/- only as mentioned in your notice. Any case filed by your
client will be defended by my client". Ex.P13 is the Koktak Mahindra
prime ltd account copy stands in the name of complainant. Ex.P14 is
12 CC No.13738/2014
the complaint is under dispute. Ex.P15 is the Gmail sent by the accused
son namely pradeep on 27-4-13 in which, he agreed to repay the loan
amount to this complainant though this accused has denied the Gmail
contents contrary to the said document. He has not produced any
document . Ex.P16 certified copy of endorsement issued by bankers
stating that Ex.P1 cheque is dishonoured due to "insufficient funds"
issued on 4-9-2013. Ex.P17 is the registered extract pertaining to the
vehicle No.KA-03-NP-4171 stands in the name of complainant.
9. On the basis of the oral documentary evidence of the
complainant , complainant has given corroborative evidence in support
of her case. Except denial of case of complainant, accused failed to lead
any of his side defence evidence if any, except his counsel cross
examining PW-1. In the cross-examination of PW-1, the accused counsel
trying to elicited that both the complainant and accused son Pradeep are
working in the same company and till this day, the accused family has
to pay Rs.six lakhs including Rs.5,74,286/- . The alleged cheque in
question issued to the accused and his son in the month of Sept.2011
for the purpose of purchasing the Car by raising the loan at Kotak
Mahindra bank. Accordingly, the accused took a loan from the said
bank in all Rs.5,75,000/- and she did not directly paid the said amount
to the accused but the accused son purchased the car in the name of
this complainant and she put her signature on the document before the
13 CC No.13738/2014
bank authority. The contents of cheque are written by herself due to
accused told that he do not know reading of English . Further it is
elicited that Ex.P11 agreement was taken on 4-5-2013 and the
engagement of the son of accused was held on 5-5-2013. But she denied
that Ex.P11 agreement has been forcibly taken from the accused with
the threat of stopping of his son marriage engagement etc.. In the
Ex.P,.11 agreement there is no specific amount is mentioned to be paid
by the accused and his son obtained loan amount for purchase of flat
but the accused and his son obtained loan amount from the Saraswath
Co-Op.Bank in her name but she denied that this accused and his son
have no obligation to pay the amount to this accused and herself has
obtained loan from the bank with the help of bogus document and for
that, the bankers have lodged the complaint against her and the case
was registered against her. Further it is stated that she used to pay the
amount about Rs.six lakhs on different dates to this accused from the
month of June 2009 to Dec.2012 on various occasions and the accused
son used to draw the amount from her bank account with the help of
ATM card and in order to show she paid Rs.6 lakhs to the accused . She
has no obligation to produce documentary evidence. She denied that at
the time of doing project work along with son of accused, she obtained
document and the same are misused etc..
14 CC No.13738/2014
10. In the further chief examination she noticed her signature and
the signature of this accused and also signature of accused son as
Ex.P11(a) and Ex.P11(b) and also she identified the witness signature
by name Venkatesh . Further for liability of loan amount, borrowed in
the bank pertaining to the car , she herself has agreed to repay the loan
amount as per Ex.P15 and also identified the bankers endorsement with
respect to Ex.P1 cheque . As per Ex.P16 is the copy of endorsement
issued by the bankers and also she produced Ex.P17 is "B" report and
extract pertaining to vehicle No.KA-03-M-4171. But she denied that
Ex.P11 Email has been obtained forcibly from the S/o accused as per
Ex.P17 chargesheet filed against the accused . Case is pending against
them and she denied entire case of accused to say that this accused and
his son have not obtained any loan amount from the complainant and
for repayment of the said amount, they have issued Ex.P1 cheque in
question and same is dishonoured due to "Insufficient funds".
11. As per cross-examination of PW-1, the accused did not
stepped into the witness box to depose about his case by denying the
entire case of complainant . Looking on to the facts and circumstances
of the case of the complainant coupled with the documentary evidence
produced by her are clearly reveals that there was a transaction taken
between the complainant and accused and her son. Though
documentary evidence produced by the complainant are stands in her
15 CC No.13738/2014
name, it cannot be said that the accused is not obtained loan from the
bankers but the complaint and also FIR, chargesheet submitted by the
police are clearly reveals that there was a transaction taken between
both the parties and by misusing the complainant, the accused obtained
the various loan from the bankers with the assurance to marry the
complainant etc.. In the Ex.P12 reply notice except total denial of the
case of complainant, the accused has not stated anything about how
this complainant has misused the cheques belongs to this accused etc.
12. In support of the case of complainant, the Ln.counsel for
complainant relied on the following decisions reported in :
1999 Crl.L.J. 1349
NI Act(26 of 1881), s.138-Scope-It is not necessary that the
cheque should be issued to person to whom debt is due-Dishonour of
cheque, issued in favour of son to discharge debt to his father-Is covered
by S.138.
(2002)6 SCC 426
The words " any cheque" and " other liability" occurring in section
138 are the two key expressions which stand as clarifying the legislative
intent so as to bring the factual context within the ambit of the
provisions of the statute. These expressions leave no manner of doubt
that for whatever reason it may be, the liability under section 138
cannot be avoided in the event the cheque stands returned by the
banker unpaid. Any contra-interpretation would defeat the intent of the
legislature. The High court got carried away by the issued of guarantee
and guarantor's liability and thus has overlooked the true intent and
purport of section 138 of the act.
2009 Crl.L.J. (Noc) 574 (Bom)
16 CC No.13738/2014
NI Act(26 of 1881), ss, 138, 139-Dishonour of cheque-
Presumption as to legally enforceable debt-case of accused that cheque
was issued towards payments of purchase price of plots owned by
complainant -and as he later on came to know that complainant was
not owner of those plots he did not arrange for payment of amount
under cheque due to frustration of agreement of sale-failure by accused
to prove any agreement of sale-failure to produce any documentary
evidence.
Accordingly. Ln.counsel for complainant prays for convicting the
accused in accordance with law.
13. In support of the case of accused, Ln.counsel for accused
produced Newspaper cutting published in Hindu, Monday 22, 2014 page
10 with caption--
"Tampered e-records can lead to travesty of justice; SC
Electronic records such as computer print-outs, CDs, pen drives,
micro-chiips, VCDs and so on are considered' secondary evidence", as
they are copies taken from an electronic device that stores or processes
the date.
Section 65B, included in the amended evidence act, requires the
person in charge of the duplication of data to give the court a certificate
that the date are authentic to the best of his or her knowledge.
14. On the basis of the aforesaid paper report, the accused
counsel contended that whatever the gmail produced by the
complainant without production of its VCD or CD it cannot be looked
into . But at the time of cross-examination of PW-1 accused counsel
17 CC No.13738/2014
himself has suggested that the Gmail contents has been obtained from
the accused son forcibly etc.. If at all if it is really, obtained forcibly from
the son of accused, the son of accused why he was kept quite without
lodging complaint to the police about misusing of Gmail letter. Under
these circumstances, it cannot be come to the conclusion that accused
has not committed any offences as alleged in this case. Hence,
complainant has proved alleged guilty of accused beyond all reasonable
doubt that accused is liable for conviction. The complainant has not
claimed any interest on the cheque amount however, it can be taken
into consideration of the facts and circumstances of the case , the
accused has to pay simple interest on the cheque amount from the date
of cheque till realization of entire said sum. Accordingly, I proceed to
pass the following:
ORDER
Acting u/s 265 of Cr.P.C., the accused is convicted for the offence punishable u/s 138 of N.I.Act and sentenced to pay fine of Rs.5,80,000/- (Five lakhs eighty thousand only).
If fine is realized, pay a sum of Rs.5,75,000/- (Five lakhs seventy five thousand only) to the complainant as compensation with simple interest at the rate of 6% Per annum from the date of cheque till realization same shall be paid to her within the period of 30 days from the date of this order.
18 CC No.13738/2014The rest of the amount Rs.5,000/- (Five thousand only) is ordered to be adjusted to the State Exchequer.
In default of payment of this compensation amount, the accused shall undergo simple imprisonment for period of one year.
Office is directed to furnish the copy of this Judgment at free of cost to the accused.
(Dictated to the stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 15th day of may 2015) (NAGARAJEGOWDA.D) XXII Addl. Chief Metropolitan Magistrate, Bangalore City.
ANNEXURE Witnesses examined for the Complainant:
PW.1 Nethravathi Umesh Rao Witness examined for the accused: Nil List of Documents marked for the Complainant:
Ex.P1 Cheque
Ex.P2 Signature of accused
Ex.P3 copy of legal notice
Ex.P4 & 5 Postal RPAD receipt
Ex.P6 Speed post Acknowledgment
Ex.P7 Postal Cover
Ex.P8 Certified copy of the Complaint
19 CC No.13738/2014
Ex.P9 C C of FIR in Crime No.0344/2013
Ex.P10 C.C of charge sheet
Ex.P11 Certified copy of sale deed agreement
Ex.P11(a,b) Signature of accused and complainant Ex.P12 Reply notice Ex.P13 Koktak Mahindra Prime Ltd account copy Ex.P14 Complaint Ex.P15 Gmail Ex.P16 Endorsement Ex.P17 Registered extract List of Documents marked for the accused: Nil XXII ACMM, Bangalore.