Bangalore District Court
Smt. R.Vasanthi @ Vasantha vs Smt. D.R. Saraswathamma on 28 July, 2018
IN THE COURT OF THE XII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 28th day of July 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 10609/2008
Complainant: Smt. R.Vasanthi @ Vasantha
Kumari
W/o. B.C. Krishnamurthy
Aged about 44 Years
R/at. No.5750/A, Arabic School
Road, 2nd Cross, Subash Nagar
Nelamangala
Bengaluru-562 123.
(By M.Sheela. Adv)
- Vs -
Accused: Smt. D.R. Saraswathamma
W/o. D. Sathyanarayana Gupta
Aged about 45 Years
No.23, Divya Traders
Sultanpalya Main Road
R.T.Nagar Post
Bengaluru-560 032.
(By L. Dayananda., Adv)
Offence U/s138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty.
Final order Accused is acquitted
Dated: 28.07.2018
******
2 C.C. 10609/2008
JUDGMENT
1. The Complainant filed this Complaint against the accused U/s.200 of Cr.PC for the offence punishable U/s 138 of N.I.Act.
2. The brief facts of the case of the complainant is; that, both the complainant and accused are classmate and both are studied together at Nelamangala and after the marriage of the complainant, she continued to stay at Nelamgnala and the accused was and is after her marriage, she was shifted to Bengaluru and the accused is running a business under the name and style as Divya Traders a General and Provision Stores, Stationery and as STD Booth and the same is situated at R.T.Nagar, Bengaluru. On account of well acquainted with each other, the accused has approached the complainant stated her financial crises and requested the complainant to stood as guarantor for as she will borrowed the loan from the Bank and accordingly, on account of believing on good faith, husband of the complainant has stood a guarantor by name Krishna Murthy and accordingly, the accused had borrowed the loan from Amanath Co- Operative Bank Limited, Gangenahalli Branch, R.T.Nagar, Bengaluru by creating mortgage on 14.11.2005 property of the husband of the complainant and which was duly registered in the office of the Sub-Registrar office, Gandhinagar, Bengaluru, vide document No.2993/2005-06 and the accused has availed the loan an amount of Rs.5,00,000/- from the said bank under the name and style 3 C.C. 10609/2008 as Divya Traders and to that effect, the complainant has produced the certified copy of the memorandum of title deeds dated: 14.11.2005 and the statement of account of Amantha Co-Operative Bank dated: 24.01.2008 is also produced wherein, the accused has failed to pay the borrowed the loan from the said bank and the said property was kept for auction by said bank in default of the borrowed the loan amount by the accused and thereby, husband of the complainant has paid the said amount of Rs.5,00,000/- together with interest an amount of Rs.12,000/- to the said bank and the banker have issued receipt on 12.06.2006 in the name of the husband of the complainant for having paid the full loan amount along with interest to the said bank and husband of the complainant received the back title deeds which was given to the said bank for security purpose with respect to loan availed by the accused from the said bank. Further, since husband of the complainant was paid loan amount to the bank and for payment of the said loan amount paid by the husband of the complainant, the accused has issued cheque bearing No.279763, dated: 17.01.2008 drawn on Amanth Co-Operative Bank Limited, Gangenahalli Branch, R.T.Nagar Branch, Bengaluru in favour of the complainant and assured that, the said cheque would be honoured on its presentation and accordingly, as per the assurance made by the accused, the complainant has presented said cheque through his banker i.e., Sree Banashankari Mahila Co-Operative Bank Limited, Cubbonpet Branch, Bengaluru, but it was dishonoured with an 4 C.C. 10609/2008 endorsement as "Funds Insufficient" on 18.01.2008. Thereafter, the complainant has informed the said fact to the accused, but, the accused has not responded the same, then the complainant has issued the legal notice through his counsel on 11.02.2008 by way of RPAD calling upon him to repay the said loan in question within 15 days from the date of receipt of the said legal notice and it was duly served upon him and after receipt of the legal notice, the accused has gave evasive and untenable reply on 15.02.2008 by denying the claim of the complainant and failed to repay the borrowed the loan amount. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I.Act., which is well within time and on perusal of the documents produced by the complainant, cognizance is taken the complaint is register in PCR register before that Court.
3. After recording of the sworn statement of the complainant and register the case in criminal register and after issuance of summons to the accused, the accused appeared before the Court through his counsel and got released bail on him. The substance of the accusation was recorded and read over and explained to him in his language. He pleaded not guilty and claims for trail.
4. In order to prove the case of the complainant, the complainant got herself examined as PW.1 & got 17 documents marked as Ex.P.1 to Ex.P.17 and PW-1 has been fully cross-examined and the statement of accused under 5 C.C. 10609/2008 Section 313 of Cr.P.C., was recorded, he denied the incriminating statement against him and the accused himself examined as DW-1 and got marked twelve documents as per the Ex.D1 to Ex.D12 in support of her case and in support of her case, she got examined one witness as DW-2 who is the bank manger of the Amanth Co-Operative Bank, Gangenahalli, R.T.Nagar Branch, Bengaluru and after completion of the defence evidence and heard the parties to the proceedings and convicted the accused person and being aggrieved against the judgment passed by this Court, the accused has preferred an Criminal Appeal No.267/2010 and the Appellate Court after heard the parties to the proceedings and available on record, the Appellate Court has remanded matter back to this Court for afresh trail, in the meanwhile the accused has challenged the order passed by this Court before the Hon'ble High Court of Karnataka in Criminal Petition No.4794/2011 C/w. Criminal Petition No.4795/2011 and the Hon'ble High Court dismissed the petition for non- prosecution and when the matter was posted for fresh evidence and inspite of giving sufficient opportunity, the complainant has failed to adduce her fresh evidence and after recording the fresh statement of the accused under section 313 of Cr.P.C., the accused herself further examined and subsequently, inspite of giving sufficient opportunity, the complainant has failed to cross-examine the DW-1 and accordingly, further cross of DW-1 is taken as no cross and then the matter was posted for arguments.
6 C.C. 10609/20085. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued Cheque bearing No.279763, dated:17.01.2008 for a sum of Rs.6,00,000/- drawn on Amanath Co-Operative Bank Limited, Gangenahalli Branch, Benglauru, for discharge of the loan amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice he fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Negative
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint and he has got marked 17 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is 7 C.C. 10609/2008 marked as Ex.P2, the office copy of the legal notice issued to the accused which is marked as Ex.P3, postal acknowledgment which is marked as Ex.P4, reply notice which is marked as Ex.P5, certified copy of compromise petition in O.S.No.4356/1997 which is marked as Ex.P6, the certified copy of the order sheet in O.S.No.4356/1997 which is marked as Ex.P7, the certified copy of the final decree passed in O.S.No.4356/1997 which is marked as Ex.P8, the certified copy of the memorandum of deposit of title deeds which is marked as Ex.P9, the copy of the receipt which is marked as Ex.P10, the certified copy of the affidavit which issued by the Department of Stamps and Registration which is marked as Ex.P11, the statement of account which is marked as Ex.P12, the certified copy of the sale deed which is marked as Ex.P13, the legal notice dated:11.02.2008 which is marked as Ex.P14, the certified copy of the order sheet in PCR No.2319/2008 which is marked as Ex.P15, the certified copy of the memorandum of complaint in PCR No.2319/2008 which is marked as Ex.P16, the copy of the reply notice dated:15.02.2008 which is marked as Ex.P17.
9. During the course of cross of PW-1 she has deposed that, herself and accused are childhood friends and they are studied at Nelamangala. She deposed that, she was marriage in the year 1986. She deposed that, her husband was running power looms, but she do not know whether her husband had obtained license or not. She do not know knowledge about the avocation of her husband. She deposed 8 C.C. 10609/2008 that, she was not doing any own work and she was fully depended upon her husband and her children source of income. She deposed that, her husband was not having any source of income apart from source of income from Power looms, but she do not know actually what extents of income derived by her husband from the said work. He is having own house. She had admitted with respect to the relationship between herself and the accused. She denied the suggestion that, the accused was not having financial difficulties. It is true that, her husband stood as guarantor with respect to the loan borrowed by the accused from the bank. It is true that, she was not having any other source of income. She denied the suggestion that, the accused was advanced loan amount of Rs.1,00,000/- to her. She denied the suggestion that, she was not deposited an amount of Rs.5,12,000/- on 12.06.2006. She denied the suggestion that, knowing fully she was filed the false complaint even though the accused already deposited loan amount with interest to the bank on 03.05.2006 and 12.06.2006.
10. During the course of defence evidence, the accused herself examined as DW-1 by way of filing chief affidavit, wherein she has specifically contended that, since both of them are classmate during their childhood and thereby, both of them are very well known to each other. She deposed that, she was and is running Divya Traders at R.T.Nagar, Bengaluru and she was in need of financial difficulties and she was intend to borrowed the loan from the Amanath Co-
9 C.C. 10609/2008Operative Bank, Gangenahalli Branch, Bengaluru and for that, husband of the complainant was stood as guarantor and the property of the husband of the complainant was mortgaged as security and further, she has repaid the said borrowed loan amount on 03.05.2006 an amount of Rs.2,00,000/- and an amount of Rs.3,12,000/- on 12.06.2006 and to effect, she has obtained the receipt from the bank as per the Ex.D6 and Ex.D7. Further, she has deposed that, at the time of availed the loan from the bank, she had issued Ex.P1 cheque for the security purpose and even after clear the loan which was borrowed by the accused from the bank and taking undue advantage of the signed blank cheque which was issued for the collateral purpose, she had filed false complaint against the accused and for that reasons even after issuance of the legal notice, she had issued reply notice prior to filing of the present complaint. Further, she has produced the legal notice dated:22.01.2008 send to the complainant which is marked as Ex.D1, the legal notice dated:11.02.2008 issued by the complainant which is marked as Ex.D2, the legal notice dated:15.02.2008 issued by the complainant which is marked as Ex.D3, the copy of the complaint lodged before the police station which is marked as ExD4, the memorandum of complaint in PCR No.2319/2008 on the file of 4th ACMM Court, Bengaluru which is marked as ExD5, the certified copy of the two clearance bank receipts issued by the banker which are marked as Ex.D6 and Ex.D7, the true copy of the receipt of issued by the Principal of Sehsadripuram First Grade College 10 C.C. 10609/2008 which is marked as Ex.D8, the statement of account which is marked as Ex.D9, the statement of account for a period from 01.08.2005 to 23.07.2009 which is marked as Ex.D10.
11. During the course of cross of DW-1, she has deposed that, she being a LIC agent and also doing network business and apart from that, she was and is running a departmental store under the name and style as Divya Traders since 1991. She had bank transaction since 1991 and she had OD facility in her banks since 2002 to 2006. She denied the suggestion that, she was in financial problem and she had explained the same with the complainant and she had asked the complainant to facility Rs.5,00,000/- OOD from the bank to discharge her earlier debts. It is true that, husband of the complainant was stood as surety to the OOD transaction and he has kept his property as collateral security to the said OOD facility. She denied the suggestion that, she was not at all paid the money to the bank and she was not at all close her OOD account.
12. During the course of defence evidence, the accused in support of her case, she had got examined as DW-2 who is none other than Senior Bank Manager of Amantha Co- Operative Bank, Bank, Gangenahalli, R.T.Nagar, Bengaluru and the DW-2 has corroborated the version of the DW-1 and during the course of cross of DW-2 nothing has been elicited the to disprove the defence of the accused.
11 C.C. 10609/200813. Further, the matter return back to this Court for fresh trail and accordingly, the accused herself further examined as DW-1 by way of filing an chief affidavit and she had got marked as Ex.D11 and Ex.D12 and when the matter was posted for cross of DW-1 and subsequently, despite of giving sufficient opportunity, neither the complainant nor his counsel, they have failed to cross-examine the DW-1 and accordingly, cross of DW-1 is taken as no cross and after hard the parties to the proceedings and posted the matter for arguments.
14. On perusal of the averments made in the complaint, evidence of the respective parties and coupled with the documents produced by the respective parties. It is an admitted fact that, both the complainant and accused were and are known to each other. It is an admitted fact that, prior to filing of the present complaint, the complainant has complied all the necessary ingredients under Section 138 of N.I.Act., and after receipt of the legal notice, the accused has gave reply notice. There is no dispute that, Ex.P1 is belonging to her own bank account cheque and the signature found on the Ex.Pl(a) is her own signature.
15. It is case of the complainant is that, both of them are known to each other as they are childhood friends and on account of well acquainted with each other, the accused has approached the complainant and explained her financial stringency and she had intend to avail the loan from the 12 C.C. 10609/2008 bank and to that effect, she had requested husband of the complainant to stood as guarantor and accordingly, husband of the complainant has stood as guarantor by mortgaged his property title deeds and subsequently, the accused has failed to repay the loan which was borrowed by her from the said bank and to that effect, the bank officials have conduct a auction with respect to the mortgage of his title deeds and accordingly, husband of the complainant has paid the entire loan amount together with interest which was borrowed by the accused and subsequently, the accused has issued cheque in question for discharge the said amount and same was presented for encashment, but it was dishonoured and same was informed to her, but the accused has failed to responded the same and thereby, the complainant has filed the present complaint after complying all the necessary ingredients under Section 138 of N.I.Act.,
16. On other hand, it is specific defence taken by the accused during the course of her defence evidence that, she know the complainant and she was running Divya Traders and she was in need of finance and to that effect, she was intend to avail the loan from the bank and to that effect, she had requested the complainant to stood as guarantor in order to obtain the loan from the bank and to the effect, husband of the complainant had stood as guarantor by mortgaged his property title deed and at that time, the accused has issued Ex.P1 cheque for collateral purpose to the husband of the complainant and accordingly, the accused has borrowed the 13 C.C. 10609/2008 loan from the bank and subsequently, she was repaid the said borrowed the loan amount as per the Ex.D6 and Ex.D7 and release the property of the husband of the complainant and substantiate the same, she got examined her bank manager as DW-2 and who was corroborated the version of the DW-1. Therefore, the alleged the defence taken by the accused during the course of her evidence is rebutted the claim of the complainant.
17. Therefore, an adverse inference is to be drawn that, she know the complainant and she was running Divya Traders and she was in need of finance and to that effect, she was intend to avail the loan from the bank and to that effect, she had requested the complainant to stood as guarantor in order to obtain the loan from the bank and to the effect, husband of the complainant had stood as guarantor by mortgage his property title deed and at that time, the accused has issued Ex.P1 cheque for collateral purpose to the husband of the complainant and accordingly, the accused has borrowed the loan from the bank and subsequently, she was repaid the said borrowed the loan amount as per the Ex.D6 and Ex.D7 and release the property of the husband of the complainant and to substantiate the same, she got examined her bank manager as DW-2 and who was corroborated the version of the DW-1.
18. Therefore, it can be presumed that, the complainant has misused the cheque in question which was issued by the 14 C.C. 10609/2008 accused for the collateral purpose and filed complaint against the accused with an intention to get wrong full gain. Further, the complainant has failed to prove her case by adducing cogent and corroborative evidence under Section 138 of N.I.Act., On the other hand, the accused has defended her case by adducing cogent and corroborative evidence to rebut the claim of the complainant as per the provision under Section 139 of N.I.Act.,
19. Hence, in the light of the above observation, the complainant has failed to prove that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the probability of the preponderance is higher on the side of the accused rather than the complainant. Hence, the accused has rebutted her defence as per the Section 139 of N.I.Act., Therefore, I answer the point No.1 in the Negative.
20. Point No.2 :- In view of my findings on Point No.1 in the Negative, I proceed to pas the following...
ORDER Acting U/s 255(1) Cr.P.C., the accused is acquitted for the offence punishable U/s. 138 of N.I. Act.
The bail bond of the accused stands cancelled.
15 C.C. 10609/2008(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 28th day of July 2017).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 R. Vasanthi @ Vasanta Kumari List of documents exhibited 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 Office copy of the legal notice
Ex.P.4 Postal acknowledgment
Ex.P.5 Reply notice dated:11.02.2008
Ex.P.6 Certified copy of compromise petition in
O.S.No.4356/1997
Ex.P.7 Certified copy of the order sheet in
O.S.No.4356/1997
Ex.P.8 Certified copy of the final decree in
O.S.No.4356/1997
Ex.P.9 Certified copy of Memorandum of deposit of
title deeds
Ex.P.10 Receipt dated: 12.06.2006
Ex.P.11 Affidavit issued by the Sub-Registrar,
Gandhinaar, Bengaluru
Ex.P.12 Statement of account
Ex.P.13 Certified copy of the sale deed
dated:11.10.2006
Ex.P.14 Legal notice dated:11.02.2008
Ex.P.15 Certified copy of the order sheet in PCR
No.2319/2008
Ex.P.16 Certified copy of memorandum of complaint
in PCR No.2319/2008
Ex.P.17 Reply notice dated:15.02.2008
16 C.C. 10609/2008
Witnesses examined on behalf of the accused :
DW-1 D.R. Saraswathamma DW-2 Zaheer Ahmmed Khan
List of documents exhibited on behalf of the accused :
Ex.D.1 Legal notice dated:22.01.2008
Ex.D.2 Legal notice dated:11.02.2008
Ex.D.3 Reply notice dated:15.02.2008
Ex.D.4 Certified copy of the police complaint
Ex.D.5 Memorandum of complaint in PCR
No.2319/2008
Ex.D.6 & 7 Two bank credit slips
Ex.D.8 The copy of the receipt
Ex.D.9 Statement of account
Ex.D.10 Statement of account
Ex.D.11 Memorandum of deposit of title deeds
Ex.D.12 Letter dated:13.06.2018 made by the
accused to the bank
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
17 C.C. 10609/200828.07.2018.
Complainant : MS Accused : SS Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(1) Cr.P.C., the accused is acquitted for the offence punishable U/s. 138 of N.I. Act.
The bail bond of the accused stands cancelled.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
18 C.C. 10609/2008 19 C.C. 10609/2008Inferred