Bangalore District Court
Smt. A. Catherine vs Sri. Yamareddy on 10 June, 2019
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.18366/2011
Dated: This the 10th day of June-2019
COMPLAINANT/S: Smt. A. Catherine,
W/o. Shanthappa Raju,
Aged about 48 years,
R/at No.117, 1st Main Road,
2nd Cross, K.G.Nagar,
Bangalore - 560 019.
ACCUSED: Sri. Yamareddy,
S/o. Late. Muniswamireddy,
Aged about 38 years,
R/at: 121, 3rd Cross,
Nanjappa Block,
Gavipura Gutahalli,
K.G.Nagar,
Bangalore - 560 019.
Also at:
Muttenahalli Village,
Boodhikotha (P),
Bangarpet (T)
Kolar District.
Offence Under Section.138 of Negotiable
Instruments Act.
JUDGMENT 2 C.C.18366/2011
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 person has committed an offence punishable under Section.138 of Negotiable Instruments Act.
2. The brief facts of the complainant case as per Ex.P13 complaint reads as follows:
The complainant and the accused and his wife are close friends since last 10 years. The accused approached the complainant on 09/02/2010 for hand loan of Rs.3,00,000/- for the purpose of financial difficulties and family necessity. The complainant had paid the hand loan of Rs.3,00,000/- by way of cash on 09/02/2010. The accused assured the complainant that he would repay the said amount within one year and also executed On- demand promissory note in favour of the complainant. JUDGMENT 3 C.C.18366/2011 After lapse of one year the accused postponed and failed to pay the loan amount. After demand he issued a cheque bearing No:352531 dated 10/02/2011 for an amount of Rs.3,00,000/- drawn on Vijaya Bank, Yeshwanthpur Branch, Bengaluru in favour of the complainant. The complainant presented the said cheque through her Banker Canara Bank, Okalipuram Branch, Bengaluru, but the said cheque was dishonoured due to "Funds insufficient" on 12/02/2011. There afterwards the complainant got issued legal notice to the accused on 21/02/2011 and the same is sent by RPAD and also UCP to both the addresses of the accused. The legal notice sent through UCP was duly received by the accused but the RPAD notice was intentionally refused by the accused with a shara dated 03/03/2011 and the accused has not complied with the demand of legal notice and thus he has committed an offence punishable under Section.138 of Negotiable Instruments Act and punish the accused in accordance with law by awarding double the compensation amount to the complainant in the interest of justice. JUDGMENT 4 C.C.18366/2011
3. After recording the sworn statement of complainant with documentary evidence, this court has registered the case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Summons issued to the accused and the accused appeared through his counsel and enlarged on bail. There afterwards, plea of accusation read over and explained to the accused in the language known by him and he pleaded not guilty and claims to be tried.
4. In support of the case of the complainant, the complainant filed an affidavit by way of chief-examination as PW.1 and got marked Ex.P1 to P13 and further got examined herself and got marked Ex.P.14 to Ex.P.16 and at the time of cross-examination of PW.1 the accused counsel got marked Ex.D.1 and Ex.D.2 and this PW.1 has been fully cross-examined by the accused counsel and thus the complainant closed her side evidence.
5. There afterwards, accused person was examined under Section 313 of Cr.P.C. statement, in which he totally JUDGMENT 5 C.C.18366/2011 denied the entire case of the complainant and examined himself as DW.1 and examined 3 witnesses as DW.2 to DW.4. Through DW.1 he got marked Ex.D.3 and Ex.D.4 and these DW.1 to DW.4 have been fully cross-examined by the complainant counsel and thus the accused closed his side evidence.
6. In support of the case of the complainant, in spite of sufficient opportunity has been given, the counsel failed to appear before this court and failed to address the arguments on merits.
7. In support of the case of the accused, I have heard the arguments of accused counsel on merit by relying on decision reported in AIR 2019 Supreme Court Cases 942 (Anss Rajashekar V/s. Augustus Jeba Ananth) in which the Hon'ble Supreme Court of India held that Ss. 138, 139 - Dishonour of cheque - Presumption as to legally enforceable debt - Failure of complainant to establish source of funds alleged to be utilized for disbursal of loan to accused etc. Further relied on decision reported in Criminal Appeal No:636 of 2019 (Basalingappa V/s. Mudibasappa) JUDGMENT 6 C.C.18366/2011 in which the Hon'ble Supreme Court of India held that it is submitted that burden of proof on accused under Section 138 is not a heavy burden as is on a prosecution to prove the offence beyond reasonable doubt.
Further relied on decision reported in AIR 2003 Supreme Court 182 (C. Antony Appellant V/s. K.G.Raghavan Nair Respondent) in which the Hon'ble Supreme Court of India held that complaint of dishonour of cheque - Dismissed by trial court for want of proof of advancement of money by complainant.
Further relied on decision reported in 2001 (1) KCCR 212 (Sri. B.P.Venkatesulu V/s. Sri. K.P.Mani Nayar) in which the Hon'ble High Court of Karnataka held that Section 139 stood rebutted. Therefore, the Sessions Judge was right in setting aside the conviction of the accused by the Magistrate and acquitting him.
Further relied on decision reported in 2008 (1) KCCR 334 (Nirmala V/s. Shivaji) in which the Hon'ble High Court of Karnataka held that Section 18 - Small Causes Suit for recovery of amount due on a Promissory Note - Signature and passing of consideration denied etc. Further relied on decision reported in 2012 (3) KCCR 2057 (Veerayya V/s. G.K.Madivalar) in which Hon'ble High Court of Karnataka held that when the financial capacity of complainant is questioned, the complainant has to establish his financial capacity - Judgments of Court below were set aside - Petitioner was acquitted of offence under Section 138 of N.I.Act.
Further relied on decision reported in 2008 (4) KCCR 2477 (Shiva Murthy V/s. Amruthraj) in which Hon'ble High Court of Karnataka held that Section 138 of the N.I.Act and thereafter find out as to whether or not the accused has rebutted the said presumption etc. JUDGMENT 7 C.C.18366/2011 Further relied on decision reported in ILR 2009 KAR 172 (Sri.A.Viswanatha Pai V/s. Sri. Vivekananda S. Bhat) in which Hon'ble High Court of Karnataka held that existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act.
Further relied on decision reported in 2013 (3) KCCR 1940 (Smt. Lakshmi Subramanya V/s. Sri.B.V.Nagesh) in which Hon'ble High Court of Karnataka held that Section 138 - Acquittal - Factum of lending - Complainant not reflecting in his IT return.
Further relied on decision reported in AIR 2009 (NOC) 2327 (BOM) (Sanjay Mishra V/s. Ms. Kanishka Kapor @ Nikki and another) in which Hon'ble Bombay High Court held that liability to repay unaccounted cash amount cannot be said to be legally enforceable liability within meaning of explanation to S.138 - Acquittal of accused proper.
Further relied on decision reported in 2010 (5) KCCR 3397 (S.Timmappa V/s. L.S.Prakash) in which Hon'ble High Court of Karnataka held that it is clear that no consideration has passed under the cheque on the said date as even according to complainant, the loan was advanced on 6-1-1995. Therefore, presumption under clause (a) of Section 118 of the Act stood rebutted.
Further relied on decision reported in 2008 (3) KCCR 1374 (Parappa and antoehr V/s. Bhimappa and another) in which Hon'ble High Court of Karnataka held accused mere production of the said expert's report in to court is not sufficient. It does not become and part of the Court record on their production.
Further in (H) Expert Evidence - Not a conclusive evidence or a substantive evidence.
JUDGMENT 8 C.C.18366/2011
Accordingly the learned counsel for the accused prays for acquittal of the accused in accordance with law.
8. In this case the Truth Foundation FSL authority has been appointed upon the request of the accused, for that one of the Director sent the report about the signature on the cheque. In their opinion "the writings marked Ex.P.1 where found to be executed on the document with prior signature marked Ex.P.1a at a different time with different ink".
9. On the basis of aforesaid facts and circumstances, the following points arises for my considerations:
POINTS
1. Whether the complainant proves beyond all reasonable doubts that for repayment of the loan amount of Rs.3,00,000/- which was given to the accused on 09/02/2010 the accused issued a cheque bearing No:352531 dated 10/02/2011 for an amount of Rs.3,00,000/-
drawn on Vijaya Bank, Yeshwanthpur Branch, Bengaluru. Accordingly, the complainant JUDGMENT 9 C.C.18366/2011 presented the said cheque through her Banker, Canara Bank, Okalipuram Branch, Bengaluru, but the said cheque was dishonoured due to "Funds insufficient" on 12/02/2011. In spite of issuance of legal notice to the accused, the same is sent by UCP and RPAD and the accused received the UCP notice, but he refused to receive the RPAD notice with a shara on 03/03/2011 and the accused did not replied or complied the notice and thus he has committed an offence made punishable under Section.138 Negotiable Instruments Act?
2. What order?
10. My answers to the above points are as follows:
Point No.1: In the Negative
Point No.2: As per the final order,
for the following.
REASONS
11. POINT NO.1: In support of the case of the
complainant, the complainant has filed affidavit by way of chief examination as PW1, in which she stated that she JUDGMENT 10 C.C.18366/2011 know the accused and the accused approached him on 09/02/2010 and requested for hand loan of Rs.3,00,000/- for the purpose of financial difficulties and family necessity. Accordingly the complainant paid the said amount by way of cash to the accused on the same day and the accused undertaken to repay the said amount within one year. After one year the complainant demanded to repay the said hand loan amount, for that the accused issued a cheque bearing No:352531 dated 10/02/2011 for an amount of Rs.3,00,000/- drawn on Vijaya Bank, Yeshwanthpur Branch, Bengaluru in favour of the complainant. As per the request of the accused, the complainant presented the said cheque through her Banker Canara Bank, Okalipuram Branch, Bengaluru, but the said cheque was dishonoured due to "Funds insufficient" on 12/02/2011. There afterwards the complainant got issued legal notice to the accused on 21/02/2011 by both RPAD and UCP. The legal notice sent by UCP was duly served upon the accused and the RPAD notices were returned with the shara and the accused has JUDGMENT 11 C.C.18366/2011 not complied or replied the notice. Thus, the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and got marked Ex.P.1 to Ex.P.13 documents. Ex.P.1 is the cheque alleged to be issued by the accused and identified the signature of the accused as per Ex.P1(a). The accused has denied the signature found on Ex.P.1 and hence upon his application, this court has appointed the FSL authority of the Forensic Science Laboratory for the signature along with the admitted signature. For that the concerned Truth Labs Forensic Science Laboratory after thorough verification of the admitted signature and the disputed signature comes to the conclusion that "the writings marked Ex.P.1 where found to be executed on the document with prior signature marked Ex.P.1a at a different time with different ink". Against the said report of the FSC authority, the accused counsel wanted to examine the concerned FSL authority person before the court, but the same has been rejected by this court. Against the order of this court the accused has not preferred any Appeal as the said report of the JUDGMENT 12 C.C.18366/2011 Commissioner is in tact. Further, got examined Ex.P.2 which is the endorsement issued by the Banker stating that Ex.P.1 cheque is dishonoured with an endorsement "Funds insufficient" and Ex.P.3 is the copy of the legal notice. This notice has been sent to the accused by RPAD as per Ex.P.4 to Ex.P.6 RPAD receipts and UCP receipt to his two addresses as per Ex.P.7 and Ex.P.8 postal covers which were returned as "Door locked" and the said notices returned unserved with the postal shara as "the accused is not residing in the addresses" as per Ex.P.8 postal cover and as per Ex.P.7 RPAD postal cover it is returned with a postal shara "ID etc". Ex.P.9 and Ex.P.10 are the copies of legal notice and the same is sent to the accused through RPAD. As per the case of complainant, the UCP notice sent to the accused is duly served. Ex.P.11 and Ex.P.12 are the On-Demand Promissory Note and consideration receipt issued by the accused on 09/02/2010 in favour of the complainant in the presence of witnesses, but no one witnesses have been signed on the On-Demand Promissory Note except in the consideration receipt and the accused JUDGMENT 13 C.C.18366/2011 has put the signature on the same as "Yamareddy" as per Ex.P.11(a) and Ex.P.12(a). Ex.P.13 is the complaint is not in dispute. Further, the complainant examined and got marked Ex.P.14 and Ex.P.14(a) which is the vakalath of the accused and identified the signature of the accused as per Ex.P14(a). Further, got marked Ex.P.15 and Ex.P.16 are the colour photos to show where exactly the complainant is standing along with other woman. The said documents are marked at the time of cross-examination of P.W.1 and also got marked Ex.D.1 and Ex.D.2 which are the Gas Tax Invoices stands in the name of accused mentioned the addresses as per the cause title of the complaint address. The gas Invoices are dated 15/04/2013 and 16/11/2012 respectively which shows that the accused is residing at No:117, 3rd Floor, 2nd Cross, 1st Main, K.G.Nagar, Bangalore-560019. Whereas as per Ex.P.3 notice dated 21/02/2011, the address of accused is mentioned as No:121, 3rd Cross, Nanjappa Block, Gavipura Gutatahalli, K.G.Nagar, Bangalore-560019. The same is against the contents of Ex.D.1 and Ex.D.2 addresses of the accused. JUDGMENT 14 C.C.18366/2011 As such, the legal notice sent to the accused as per Ex.P.3 is not duly served to the accused and the demand notice is not issued to the addresses of accused in accordance with law. As such, the case of the complainant is doubtful that the complainant has issued legal notice to the accused as per Ex.P.3 to his last known address of accused and nothing has been mentioned in the complaint about the issuance of demand notice to the accused. But she simply stated that the legal notice is sent to the accused by UCP and duly served. In her cross-examination she has denied that the accused has not at all obtained any loan amount from him for Rs.3,00,000/-, but she paid the said amount by way of cash and also she denied that the accused has not at all issued Ex.P.11 and Ex.P.12 On-Demand Promissory Note and consideration receipt and the signature found on the said document is not belongs to this accused and in order to appreciate the case of the complainant in the cross-examination of P.W.1 at page No.6 and the relevant portion in Kannada reads as follows. JUDGMENT 15 C.C.18366/2011
"£Á£ÀÄ CªÀgÀ£ÀÄß §®ªÀAvÀªÁV ªÀÄ£É ©r¹zÉÃÝ ªÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. DzÀÝjAzÀ £À£Àß «gÀÄzÀÝ ¦.J¸ï.£À°è zÀÆgÀÄ PÉÆmÉÖzÁÝgÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. D jÃw DgÉÆæ ªÀÄ£É ©lÄÖºÉÆÃUÀĪÁUÀ CªÀgÀÄ ©lÄÖ ºÀÉÆÃVzÀÝ ZÉPÀÄ̧ÄPï£À°èzÀÝ ZÉPÀÄÌUÀ¼À£ÀÄß £Á£ÀÄ vÉUÉzÀÄPÉÆAqÀÄ £Á£ÀÄ zÀÄgÀÄ¥ÀAiÉÆÃUÀ ¥Àr¹PÉÆArzÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. DgÉÆæUÉ £À£Àß ªÀQîgÀ ªÀÄÆ®PÀ PÀ¼ÀÄ»¹zÀ £ÉÆÃn¸ï CªÀjUÉ vÀ®Ä¦®è J£ÀÄߪÀÅzÀÄ £À£ÀUÉ UÉÆwÛ®è".
12. These facts clearly establishes that the alleged cheque in question has been obtained wrongfully though the accused has not issued any cheque in favour of the complainant for discharge of any liability towards him. In the complaint or in the chief-examination of the complainant, she has not stated anything about the accused is in the rent house of this complainant and for repayment of the house rent amount he has issued the cheque in question and the same has been dishonoured. Further, the complainant in her cross-examination admitted that the amount given to the accused for Rs.3,00,000/- is not shown in her IT returns and she has not produced any income tax returns to support her case and the accused is residing in the addresses as stated in Ex.D.1 and Ex.D.2 Gas Tax Invoice. Further, in order to JUDGMENT 16 C.C.18366/2011 appreciate the case of the complainant and the accused at the time of cross-examination at page No.9, and the relevant portion in Kannada reads as follows.
"DgÉÆæ 2010gÀ°è ¸ÀvvÀ ÀªÁV 7-8 wAUÀ¼À ¨ÁrUÉ ºÀt £ÀªÀÄUÉ ¸ÀAzÁAiÀÄ ªÀiÁqÀ°®è D PÁgÀt £ÀªÀÄä ªÀÄvÀÄÛ DgÉÆæ ªÀÄzsÉå zÉéõÀ GAmÁ¬ÄvÀÄ C£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¸ÀzÀj DgÉÆæ ªÀÄvÀÄÛ CªÀgÀ ªÀÄ£ÉAiÀĪÀgɯÁè DUÀ¸ïÖ 2010gÀ°è ©ÃUÀ ºÁQPÉÆAqÀÄ HjUÉ ºÉÆÃzÁUÀ CªÀgÀÄ ºÁQPÉÆAqÀ ©ÃUÀ vÉUÉzÀÄ £ÀªÀÄä ©ÃUÀ ºÁQPÉÆAqÉ C£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¸ÀzÀj DgÉÆæ £ÀªÀÄä ªÉÄÃ¯É PÉ.f. £ÀUgÀ À ¥ÉÇÃ. oÁuÉAiÀÄ°è zÀÆgÀÄ PÉÆnÖzÀÝgÀÄ C£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è".
13. On the basis of the said cross-examination of P.W.1, the accused is due towards the complainant for rent but taking advantage of the accused residing in his rental house and by taking the alleged cheque in question and also On-Demand Promissory Note, the same has been misused and the accused has denied the rest of the case of the complainant stating that the complainant has not at all obtained any loan amount as alleged. But the demand notice issued to the accused on the dishonour of the cheque is not served to the accused to the proper address. As such, the complainant has not approached this court in JUDGMENT 17 C.C.18366/2011 a proper manner and she failed to disprove the case of the accused by giving cogent and convincing evidence before this court as per the defence taken by the accused.
14. In order to give defence evidence, the accused examined as D.W.1. In his chief-examination, from the beginning itself he was in rent in the house of the complainant from the year 2008-2010 and he is due of rent from 7 to 8 months and for that they have thrown away from the house of the complainant and locked the house and hence the household articles are kept in the house of the complainant. In the household articles, he had kept the signed blank cheque. After he was thrown out from the house of the complainant, he went to Kempegowda Nagara Police Station and lodged a complaint against the complainant and he denied that Ex.P.11 and Ex.P.12 have been created for the purpose of this case and apart from that, the complainant filed a case against this accused and his wife and the same is registered in CC.No:1836/2011 for that he got marked Ex.D.3 which is the certified copy of the JUDGMENT 18 C.C.18366/2011 complaint lodged by the complainant against the wife of the accused for the offence punishable under Section.138 of Negotiable Instruments Act. Further, he got marked the Criminal Appeal No:915/2014 and its certified copy of the Judgment in which the said Kamalamma filed the appeal against the complainant hereinafter contest and the accused was acquitted. These things are clearly established from the case of accused to show that the accused has given rebuttal evidence to the case of the complainant. In support of the case of the accused, he has examined 3 witnesses as DW.2 Anil, D.W.3 Aslam and D.W.4 Shrikanth who are all the residents of Kempegowda Nagar and K.G.Nagar, Bengaluru respectively. All of them in their chief-examination have supported the case of the accused stating that the accused is tenant under the complainant for the last 6 years and the accused address is as per Ex.D.1 and Ex.D.2 Gas Tax receipts.
15. In the cross-examination of D.W.1 to D.W.4, except the denial of the case of the accused, nothing has been JUDGMENT 19 C.C.18366/2011 elicited and all the D.W.2 to D.W.4 witnesses have shown ignorance about the case of the complainant and accused regarding the money transaction. Except the denial of the case of the accused contention, the complainant failed to disprove the defence taken by them. As such the accused has successfully given rebuttal evidence to the case of the complainant and the complainant failed to prove the guilt of the accused beyond all reasonable doubt. The complainant counsel did not address the arguments on merit. The accused and his counsel relied on the citations stated above which are applicable to the case of the accused to show that the accused had given rebuttal evidence to the case of the complainant. As such the complainant has failed to prove the alleged guilt of the accused beyond all reasonable doubts. Hence, the accused is entitled for acquittal. Accordingly, I answered Point No.1 in the Negative.
16. POINT NO.2: From the forgoing reasons, I proceed to pass the following:
JUDGMENT 20 C.C.18366/2011
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 his bail band and surety bond if any will be continued for a period of 6 (six) months in compliance of under Section.437(a) Cr.P.C. (Dictated to the stenographer, corrected and then pronounced by me in the open court on this the 10th day of June-2019) (NAGARAJEGOWDA. D.) XIII Addl. C.M.M., Bengaluru.
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Smt. A. Catherine Documents marked on behalf of the complainant:
Ex.P1 : Cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Endorsement
JUDGMENT 21 C.C.18366/2011
Ex.P3 : Legal Notice
Ex.P4 & Ex.P5 : Postal receipts
Ex.P6 : UCP receipt
Ex.P7 & Ex.P8 : Unserved postal envelopes Ex.P9 & Ex.P.10 : Unserved legal notices opened in the open court.
Ex.P11 : On-Demand Promissory Note Ex.P11(a) : Signature of the accused Ex.P12 : Consideration receipt. Ex.P12(a) : Signature of the accused Ex.P13 : Complaint. Ex.P14 : Vakalath Ex.P14(a) : Signature of the accused Ex.P15 & Ex.P16: Colour photos
Witnesses examined on behalf of the accused:
DW.1 : Sri. Yamareddy DW.2 : Sri. Anil DW.3 : Sri. Aslam DW.4 : Sri. Srikanth
Documents marked on behalf of the accused:
Ex.D1 & D2 : Gas Tax Invoices.
Ex.D3 : Certified copy of complaint in CC.No:18367/2011.
Ex.D4 : Copy of Judgment in Crl. Appeal No:915/2014.
(NAGARAJEGOWDA. D.)
XIII Addl. C.M.M., Bengaluru.