Bangalore District Court
Sri. B.M. Ramesha vs Sri. Seetharamaiah 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.131/2017
Dated: This the 10th day of June-2019
COMPLAINANT/S: Sri. B.M. Ramesha,
S/o. Muddaiah,
Aged about 52 years,
Occupation: Self Employer,
R/at No.5, 'D' Group Layout,
Srigandadakavalu,
Bangalore.
ACCUSED: Sri. Seetharamaiah,
S/o. Sirigulappa,
Aged about 50 years,
Occ: Bank Employee,
R/at: 346, 10th Cross Road,
Saraswathipuram,
Nandinilayout,
Bangalore - 560 096
Offence Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Acquitted
**
JUDGMENT 2 C.C.131/2017
:: 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.P6 complaint reads as follows:
The complainant and the accused are well acquainted since long time. The accused approached the complainant for hand loan of Rs.6,00,000/- in the month of December 2015 for his financial commitments and family necessities and agreeing to repay the same within 9 months. The complainant gave a hand loan of Rs.6,00,000/- to the accused in the month of December 2015. After repeated demand for repayment of the said loan amount the accused has issued a cheque bearing cheque No:786515, dated 19.10.2016, drawn on Corporation Bank, Mahalakshmi Layout Branch, Bangalore for a sum of Rs.6,00,000/-. Accordingly, the complainant presented the JUDGMENT 3 C.C.131/2017 said cheque through his Banker, Janatha Co-operative Bank Ltd., Basaveshwarnagara Branch, Bengaluru. But the same was dishonoured with an endorsement "Funds insufficient" on 20/10/2016. The same has been intimated by the complainant to the accused, but the accused did not pay the amount covered under the cheque. Hence, the complainant got issued legal notice dated 28/10/2016 to the accused and the same is sent by RPAD and the said notice was duly served to the accused, but the accused did not reply or complied the notice and thus the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and punish the accused in accordance with law by awarding compensation for the damages and other costs to the complainant in the interest of justice and equity.
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 JUDGMENT 4 C.C.131/2017 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 examined as PW.1 filed by way of affidavit and got marked Ex.P1 to P8 and this PW.1 has been fully cross- examined by the accused counsel and through him got marked Ex.D1 and thus, the complainant closed his side evidence.
5. There afterwards, accused person was examined under Section 313 of Cr.P.C. statement, in which he totally denied the entire case of the complainant and examined himself as DW.1 filed by way of affidavit and got marked Ex.D2 to D12 and this DW.1 has been fully cross-examined by the complainant counsel thus the accused closed his side evidence.
JUDGMENT 5 C.C.131/2017
6. I have heard the arguments of complainant counsel on merits and the learned counsel for the accused submitted written arguments by narrating the facts and circumstances of the case and hence the accused has given rebuttal evidence to the case of the complainant and hence prays for acquittal of the accused in accordance with law. The accused counsel also relied on the decisions reported in:
ILR 2008 KAR 3635 (K.Narayana Nayak v/s. M.Shivarama Shetty) in which the Hon'ble High Court of Karnataka held that - Evidence on record clearly establishes that the cheque was not issued towards discharge of any legally enforceable debt, but the blank signed cheque was issued as security - Order of acquittal is Justified.
Further relied on decision reported in ILR 2008 KAR 4629 (Shiva Murthy v/s. Amruthraj) in which the Hon'ble High Court of Karnataka held that - It is only after satisfying that the complainant has proved existence of legally enforceable debt or liability, the Courts could have proceeded to draw presumption under Section 139 of Negotiable Instruments Act and thereafter find out as to whether or not the accused has rebutted the said presumption etc., Further relied on the decision reported JUDGMENT 6 C.C.131/2017 in (2014) 2 SCC 236 (John K. Abraham v/s. Simon C Abraham & Anr.) Hon'ble Supreme Court held that - Proof required on the part of complainant - Held, in order to draw presumption under S.118 burden lies on complainant to show.
Further relied on decision reported in (2015) 1 SCC 99 (K. Subramani v/s. K.Damodar Naidu) in which the Hon'ble Supreme Court of India held that - Legally recoverable debt not proved as complainant could not prove source of income from which alleged loan was made to appellant -accused - Presumption in favour of holder of cheque, hence, held, stood rebutted - Acquittal restored.
Further relied on decision reported in AIR 2008 SC 1325 (Krishna Janardhan Bhat v/s. Dattatraya G Hegde) in which the Hon'ble Supreme Court of India held that - under Section. 139 merely raises presumption in favour of holder of cheque that same has been issued for discharge of any debt or other liability - Existence of legally recoverable debt - Is not a matter of presumption u/s.139.
Further relied on decision reported in (2006) 6 SCC 39 (M.S. Narayana Menon v/s. State of Kerala & Anr.) in which the Hon'ble Supreme Court held that - Adverse inferences drawn against due to non-production of his statutory books of accounts in relation to transactions in question, itself sufficient to rebut presumption under JUDGMENT 7 C.C.131/2017 Section.118. Accordingly the learned counsel for the accused prays for acquittal of the accused in accordance with law.
7. 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 he had paid hand loan amount of Rs.6,00,000/- to the accused in the month of December 2015 and for the repayment of the same the accused issued a cheque bearing No. 786515, dated 19.10.2016, drawn on Corporation Bank, Mahalakshmi Layout Branch, Bangalore for a sum of Rs.6,00,000/-. Accordingly, the complainant presented the said cheque through his Banker, Janatha Co-operative Bank Ltd., Basaveshwarnagara Branch, Bengaluru. But the same was dishonoured with an endorsement "Funds insufficient" on 20/10/2016. Inspite of issuance of legal notice on 28/10/2016, the notice sent by RPAD has been duly served upon the accused, but the accused did not reply or complied the notice JUDGMENT 8 C.C.131/2017 and thus the accused has committed an offence made punishable under Section.138 Negotiable Instruments Act?
2. What order?
8. 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
9. POINT NO.1: In support of the case of the
complainant, the complainant filed the affidavit as PW.1 by way of chief-examination in which he has stated that the accused approached the complainant for hand loan of Rs.6,00,000/- in the month of December 2015, agreeing to repay the same within 9 months. The complainant gave a hand loan of Rs.6,00,000/- to the accused in the month of December 2015. For repayment of the said loan amount the accused has issued a cheque bearing no:786515, dated 19.10.2016, drawn on Corporation Bank, Mahalakshmi Layout Branch, Bangalore for a sum of Rs.6,00,000/-. JUDGMENT 9 C.C.131/2017 Accordingly, the complainant presented the said cheque through his Banker, Janatha Co-operative Bank Ltd., Basaveshwarnagara Branch, Bengaluru. But the same was dishonoured with an endorsement "Funds insufficient"
on 20/10/2016. Hence, the complainant got issued legal notice dated 28/10/2016 to the accused and the same is sent by RPAD and the said notice was duly served to the accused, but the accused did not reply or comply the notice and thus the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and got marked Ex.P.1 to Ex.P.8 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). Ex.P2 is the endorsement issued by the banker stating that Ex.P1 cheque was dishonoured due to "Funds insufficient".
10. Ex.P3 is the copy of legal notice sent to the accused through RPAD and the notice has been sent to the accused as per Ex.P4, RPAD postal receipt. The said notice is duly served to the accused as per Ex.P5, Postal acknowledgment, but the accused did not reply nor comply JUDGMENT 10 C.C.131/2017 to the notice. Ex.P6 is the complaint is not under dispute. Ex.P7 is the certified copy of Sale deed, alleged to be executed by the complainant, dated 03.12.2015, in which he sold the property for Rs.25,52,000/- and he received consideration amount through a cheque. Ex.P8 is the Bank Statement standing in the name of complainant and in this statement no where he has drawn amount of Rs.6,00,000/- from his bankers and paid to the accused. As such prima-facie the case of the complainant creates doubtful whether he paid huge amount of Rs.6,00,000/- to the accused without stating specific date on which he paid hand loan to the accused because accused has denied entire case of the complainant. Hence it is the duty of the complainant to prove his case beyond all reasonable doubt. In the cross-examination of PW.1 he has stated that he made savings every month and in order to show that he paid loan amount, he has not produced his Income Tax returns and also admitted he does not know the specific date on which he paid the loan amount to the accused, but stated that he withdrawn some amount from his bank and rest of the amount was with him and he denied the case of JUDGMENT 11 C.C.131/2017 the accused stating that at page-3, reads in kannada as follows :
"¸ÀzÀj ¤ªÉñÀ£ÀzÀ ¨Á§ÄÛ PÀAzÁAiÀÄ PÀlÖ®Ä DgÉÆæUÉ w¼ÀiÀªÀ½PÉ EgÀ°®è JAzÀÄ D jÃw PÀAzÁAiÀÄ ¥ÁªÀw¸ÀÄvÉÛãÉAzÀÄ ºÉý £Á£ÀÄ DgÉÆæ ¨Á§ÄÛ ªÀĺÁ®Qëà ¯ÉÃMËmï£À PÁ¥ÉÇðgÉõÀ£ï ¨ÁåAQUÉ ¸ÉÃjzÀ ZÉPï ¸ÀASÉåB 67171, 67172, 786512, 786513, 786514 ªÀÄvÀÄÛ 786515 gÀ MlÄÖ 6 ¸À» ªÀiÁrz SÁ° ZÉPïUÀ¼À£ÀÄß ¥ÀqÀÉzÀÄPÉÆArzÉÝ JAzÀgÉ ¸ÀļÀÄî. D ZÉPïUÀ¼À°è 5 ZÉPïUÀ¼À£ÀÄß CAzÀgÉ ZÉPï ¸ÀASÉåB 67171, 67172, 786512, 786513, 786514 gÀ 5 ZÉPïUÀ¼À£ÀÄß £Á£Éà ¨Àswð ªÀiÁr ©©JA¦UÉ DgÉÆÃ¥À ºÉAqÀwAiÀÄ ¤ªÉñÀ£ÀzÀ ¨Á§ÄÛ PÀAzÁAiÀÄ PÀnÖzÉÝãÉAzÀgÉ ¸ÀļÀÄî".
11. Hence the accused has taken specific defence to disprove the case of complainant. Except total denial of the case of the accused, the complainant failed to prove that he had given huge amount of Rs.6,00,000/- by way of cash to the accused and he misused the cheque given by the accused and the same is dishonoured due to insufficient funds and the legal notice issued is not opened by him and it is served to his father as per Ex.P5, Postal acknowledgment, but accused has taken different contention that he has not received any legal notice from the complainant for dishonour of the cheque. In the JUDGMENT 12 C.C.131/2017 defence evidence filed by ways of affidavit by accused as DW.1 in which the same thing has been stated that the alleged cheque and other cheques have been issued by the accused for the payment of taxes to BBMP. But one cheque has been issued by the complainant, for that at the time further cross-examination of PW.1, the accused has stated that he lodged complaint to the police.
12. For that he got marked Ex.D1, complaint lodged against complainant, dated 01.03.2017, but the case of the complainant is that the above stated Ex.D1, complaint is lodged after filing this complaint. In this regard on careful perusal of the complaint on 02.11.2016, the complainant presented the said complaint and after recording sworn statement this court registered the case against the accused on 04.03.2017 and Ex.D1, complaint given on 01.03.2017, it shows that before the receipt of the summons issued to the accused, he has lodged complaint to the police. Ex.D2 is the reply letter given by the BBMP authority regarding RTI letter issued by the accused, for that got marked Ex.D3 is the Form-3 is the self declaration JUDGMENT 13 C.C.131/2017 of the property standing in the name of accused wife, Smt. M. Komala to show that the accused had the site. Further got marked Ex.D4 is the Form-4 is another self declaration application stands in the name of accused wife Smt. Komala; Ex.D5 is the another self declaration form stands in the name of accused wife; Ex.D6 is the another Form-4 is the Self Assessment of Property Tax Form stands in the name of accused wife in which it is mentioned present cheque number as Ex.P6(a). Ex.D7 is the property tax receipt stands in the name of said Komala in which it is clearly mentioned cheque no.067171 as per Ex.D7(a). Ex.D8 is the property tax receipt and the cheque no.067172 as per Ex.D8(a). Ex.D9 is the property tax receipt and the cheque no.786512 as per Ex.D9(a). Ex.D10 is the property tax receipt and the cheque no.786513 as per Ex.D10(a). Ex.D11 is the property tax receipt and the cheque no.786514 as per Ex.D11(a) stands in the name of accused wife. Ex.D12 is the Corporation Bank pass book stands in the name of accused to show that accused had sufficient amount with him and relevant entry dated JUDGMENT 14 C.C.131/2017 05.02.2013, got marked as Ex.P12(a) in which the said cheque number has been mentioned up to 05.02.2013.
13. On the basis of oral and documentary evidences of accused, the accused had given rebuttal evidence to the case of the complainant and he never issued Ex.P1 cheque as alleged and the complainant also not stated anything that for discharge of legal liability the accused issued cheque. Further in the complaint the complainant has not stated anything about demand notice whether it is served or not. Hence it creates doubtful whether the complainant has approached this court in proper manner. In the cross- examination of DW.1 the complainant counsel denied the entire of the accused and stated that the accused obtained Rs.6,00,000/- for the purpose of his children education and marriage of his brother's daughter but nothing has been stated in the complaint. As such the arguments addressed by the complainant counsel is not applicable to the case of the complainant. But the written arguments submitted by the accused and also ruling relied by him as stated above are applicable to the case of the accused to JUDGMENT 15 C.C.131/2017 show that the accused had given rebuttal evidence to the case of the complainant. As such the case of the complainant creates doubtful, the accused is entitled for acquittal. Accordingly, I answered Point No.1 in the Negative.
14. POINT NO.2: From the forgoing reasons, I proceed to pass the following:
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.JUDGMENT 16 C.C.131/2017
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Sri. B.M.Ramesha Documents marked on behalf of the complainant:
Ex.P1 : Cheque Ex.P1(a) : Signature of the accused Ex.P2 : Endorsement Ex.P3 : Legal Notice Ex.P4 : Postal receipt Ex.P5 : Postal Acknowledgment Ex.P6 : Complaint Ex.P7 : Certified copy of sale deed Ex.P8 : Bank Statement
Witnesses examined on behalf of the accused:
DW.1 : Sri. Seetharamaiah Documents marked on behalf of the accused:
Ex.D1 : Complaint Copy Ex.D2 : Letter to BBMP Ex.D3 to D6 : Application Forms Ex.D3(a) to D6(a): Alleged Cheque nos. Ex.D7 to D11 : Copy of tax paid receipts
Ex.D7(a) to D11(a): Alleged Cheque nos.
Ex.D12 : Bank Pass Book
(NAGARAJEGOWDA. D.)
XIII Addl. C.M.M., Bengaluru.