Bangalore District Court
Sri C.S.Venkatesh vs Sri Rangaswami on 6 June, 2016
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY.
Dated this the 6th day of June, 2016.
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
C.C.No. 11570/2015
Complainant : Sri C.S.Venkatesh,
Son of Siddarangaiah,
Aged about 30 years,
R/at No. 17, First :F: Cross,
8th Main, Lakshmanagar,
Hegganahalli,
Bangalore - 560 091.
(By Sri.N.D.Krishnamurthy.Adv.)
V/s.
Accused : Sri Rangaswami,
Son of Gangaiah,
Aged about 47 years,
R/at Marenahalli villae,
Magadi Main Road,
Tavarekere hobli,
Bangalore south taluk,
Bangalore
(By Sri B.N.Shiva kumar,.Adv.)
Date of Institution 06-04-2015.
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
2 C.C.No.11570/2015.
Final Order Accused is convicted.
Date of Order : 06.06.2016.
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.
REASONS
The brief facts of the complainant case is as follows:-
2. The complainant submits that the accused is friend of the
complainant . The accused is doing the sand selling business and
also the accused had own lorry No.KA-25-8718. The complainant
has also doing same business and also the complainant had own
lorry to the year of 2014 the accused has some legal necessity and
loss of the sand selling business and also required the amount to
hospital expenses of the accused mother illness. In this regard at
that time, the accused had met the complainant and the accused
had requested for financial help and asked hand loan for
Rs.8,00,000/-. The complainant being a friend of the accused
and the complainant herein agreed to led money to the accused
for Rs.6,50,000/- with together bank interest. At the time of the
requesting the hand loan amount, the accused has informed to
3 C.C.No.11570/2015.
the complainant that the accused has selling his family land to
one Harish and also the accused and his family members are
executed the sale agreement to one Harish and also the accused
has given the copy of Sale Agreement and also RTC in respect of
the land property to the complainant. On the basis of the said
documents the complainant has agreed to give the hand loan
amount with interest. In order to arrange for the said hand loan
amount to give the accused, the complainant has withdrawn the
amount from the complainant account, the amount of
Rs.3,00,000/- on 01-07-2014 and also taking the amount from
the complaint father's the amount of Rs.3,50,000/- and
thereafter the complainant was lend the hand loan amount of
Rs.6,50,000/- on 02-07-2014. At that time accused has assured
to return the loan amount with interest, within six months. After
completion of six months period, the complainant demanded the
accused to repay the said amount. Accused requested some more
time and assured to return without fail and repay the aforesaid
hand loan amount to the complainant. Thereafter, the accused
has not available and always the accused has intentionally, one or
the other way dodging to repay the hand loan amount. At last
after so many reminders given to accused by the complainant, the
accused has issued a cheque bearing No.570829 dated 10-02-
4 C.C.No.11570/2015.
2015 for sum of Rs.7,00,000/- drawn on Corporation bank,
Nagarabhavi Branch, Bangalore - 560 072. At the time of issuing
the cheque the accused has mentioned the amount of
Rs.7,00,000/- because at the time of receiving the hand loan
amount the accused has agreed to give bank interest. The
complainant presented the aforesaid cheque for encashment
through his Banker State Bank of India, Nagarabhavi II Stage,
Bangalore. The said cheque is dishonoured and returned with the
reasons "payment stopped by the drawer" vide bank
memorandum dated 11-2-2015. Thereafterwards, the
complainant got issued legal notice on 02-03-2015 to the
accused, calling upon the accused to pay the cheque amount with
interest . The notice sent by RPAD was returned on 26-3-2015
with shara " the party is not in village . Inspite of issuance of
legal notice, he did not replied or complied the notice and thus
accused committed the offence punishable u/s. 138 of NI Act and
punish the accused in accordance with law and to award suitable
compensation as per Sec.357 of Cr.P.C with interest at 24% p.a.
calculated from 10-2-2015 , till date of payment, in the interest of
justice and equity.
3. The accused appeared before this court and contest this
case by denying the entire case of complainant at the time of
5 C.C.No.11570/2015.
recording of Plea of Accusation . In order to prove the case of
complainant, he adduced his oral evidence as PW-1 by way of
affidavit and got marked Ex.P1 to Ex.P7 and this PW-1 has been
fully cross examined by the accused counsel and he wanted to
put similar question which was earlier put to the witness . Hence,
this court rejecting the prayer of accused counsel to lead further
cross-examination of PW-1 and hence, further cross-examination
of PW-1 taken as NIL and this PW-1 has been fully cross-
examined by the accused counsel and thus complainant closed
his side evidence.
4. There afterwards, the accused examined u/s.313 of
Cr.P.C. in which, he totally denied the entire case of complainant .
He in support of his denial, lead his oral evidence as DW-1 on
Oath and got marked Ex.D 1 to Ex.D3 and this DW-1 has been
fully cross-examined by the complainant counsel and thus closed
his side defence evidence.
5. In support of the case of complainant, the Ln.counsel for
complainant submitted written arguments by narrating the facts
and circumstances of the case and submits that the complainant
had fulfilled all the ingredients of the offence punishable u/s. 138
6 C.C.No.11570/2015.
of NI Act and punish the accused in accordance with law. In
support of his contention, he relied on the decisions reported in :
2015(4) KCCR 3938
AIR 2010 SC 1898
AIR 2009 SC 568
AIR 2004 SC 408
And deposition copy of CC No. 12712/2015. Accordingly, he prays
for convicting the accused in accordance with law.
6 . In support of the case of accused, the Ln.counsel for
accused submitted written arguments by narrating the facts and
circumstances of the case and in support of his contention, he
relied on the decisions reported in : 2013(3) KCCR 1940 and
2010(5) KCCR SN. 435. Hence, he prays for acquittal of the
accused in accordance with law.
7. In order to prove the case of complainant, the
complainant adduced his oral evidence as PW-1 filed by way of
affidavit. In which, he reiterated complaint contention and got
marked Ex.P1 cheque alleged to be issued by the accused and
identified the signature of the accused as per Ex.P1(a). This
issuance of cheque in favour of complainant for discharge of legal
liability has been disputed by the accused. Further got marked
7 C.C.No.11570/2015.
Ex.P2 is an endorsement issued by the bankers stating that Ex.P1
cheque was dishonoured due to ""payment stopped by the
drawer". Ex.P3 is the copy of legal notice . This notice does
contain the signature of both complainant and his counsel . Ex.P4
is the RPAD postal receipt. Ex.P5 is the copy of letter given to the
post master asking for acknowledgement . Ex.P6 is the RPAD
postal cover is returned with the postal shara " F «¼ÀÁ¸ÀzÁgÀgÀÄ Hj£À°è
E®èªÁV ªÁ¥À¸ï ªÀiÁqÀ¯ÁVzÉ . Ex.P6(a) is notice in it. Ex.P7 is the pass book of State
Bank of India stands in the name of complainant to show that the complainant
had a money transaction with the bankers.
8. The accused has denied the entire case of complainant .
In support of his denial, he lead his evidence as DW-1 on Oath .
In which he has stated that , he do not know about this
complainant but in the month of 8th Feb.2015 , he asked his
friend Madiyappa for loan of Rs.50,000/-. At that time, he
brought the accused to one Chikkanna and the said Chikkanna
advanced loan amount and asked to give two blank cheques for
the purpose of security. Thereafterwards the said Chikkanna did
not return the said cheque and he asked the Harish who is
working with the Chikkanna as a Lorry driver and he came to
know that the said Harish has filed the suit O.S.No.952/2014 on
8 C.C.No.11570/2015.
the file of Civil Judge,Magadi for recovery of amount. Further by
misusing of another cheque issued as a security through one
Dilip filed cheque bounce case against this accused in C.C.No.
12712/2015 on the file of this court. The said Harish brought
both the complainant in the said case through his Bike No.KA-03-
HX-999 at that time, this accused took photograph of them for
that, got marked Ex.D1 is the C.D. and also typed copy of Audio
C.D. recorded between the Ramesh and Chikkanna to show that
alleged cheque was not issued to this complainant . Ex.D2 is the
"B" Register extract of the said Bike . Ex.D2(a) is the receipt
issued by the Bangalore One Authority. Ex.D3 and Ex.D4 are the
colour photo to show that this complainant is with the said
Harish. Ex.D3(a) and Ex.D4(a) are the C.D.s of the said photo.
Hence, the accused contended that this accused has not issued
any cheque in favour of the complainant etc..
9. The complainant counsel cross-examined the DW-1 . In
the cross-examination, he admitted that due to loss of sand
business , he sold away his lorries. Further he admitted that his
mother was suffering from Cancer. But he denied that for the
purpose of giving treatment to his mother, he was in need of
money . But he has stated that his mother was suffering from
Cancer during the year, 2004. For that. he given a treatment in
9 C.C.No.11570/2015.
Bangalore in various hospital and he made an expenditure of
Rs.Six lakhs in the year, 2004 and his mother was died during
the year, 2015 and he admitted that he knows one Yathish ,
Dinesh , Narayanappa , Subbarayappa , Mahesh and Manjunath.
All of them are doing sand business with the help of Lorries.
Further he admitted that the address stated on the Ex.P6 postal
cover belongs to him and used to go to his residential house on
every day. In his absence any postal cover comes to his address,
his family members were taken and he do not know local post
man and he denied that as per Ex.P6 postal cover was comes to
his address , local post man waited for 13 days to give the RPAD
postal cover . But he admitted that signature found on Ex.P1
cheque and also cheque belongs to the accused but he denied
that this cheque was issued to the complainant for discharge of
legal liability. For misusing of the alleged cheque in question by
Chikkanna and Harish , he has not lodged any complaint against
them. As per Ex.D3 and Ex.D4 photos are took at the compound
wall of this court out of Annayappa mobile phone . At the time of
taking the photos, he has not obtained permission from them as
per Ex.D3 and Ex.D3(a) are the receipts obtained at
Sunkadakatte and he denied rest of the contention of complainant
stating that alleged cheque was issued for discharge of legal
10 C.C.No.11570/2015.
liability but he has taken untenable contention without giving
corroborative evidence to the case of accused.
10.As per the defence taken by the accused, accused
counsel cross-examined the PW-1. In the cross-examination , he
tried to elicited that alleged cheque was issued for discharge of
legal liability and also after dishonour of the cheque , legal notice
was issued to the accused. The accused intentionally not taken
and he did not replied the notice and he has taken an untenable
contention etc.. Except total denial of contention of complainant,
accused failed to given rebuttal evidence to the case of
complainant.
11. In support of the case of complainant, the learned
counsel for the complainant submitted written arguments by
narrating the facts and circumstances of the case and submits
that complainant had fulfilled all the ingredients of offence
punishable u/s. 138 of NI Act , and hence he prays for convicting
the accused in accordance with law. In support of his contention,
he relied on the following decisions reported in:
2015(4) KCCR 3938 ( Gurupadaswamy Vs.
M.Partha) wherein it is held that " Dishonour of
cheque - accused pleading that a blank cheque
issued to another person has been misused by
11 C.C.No.11570/2015.
complainant-That complainant was a stranger to
him- Court dealing with such contentions squarely
and cogently- Held, findings does not warrant
interference- conviction and setnece upheld. "
AIR 2010 SC 1898 (Rangappa vs. Mohan)
"Dishonour of cheque-On account of 'stop payment'
instructions sent by accused to Bank in respect of post
dated cheque-S. 138 is attracted - Insufficiency of
funds in account, irrespective."
AIR 2009 SC 568 ( P.Venugopal Vs. Madan
P.Sarathi) Wherein Hon'ble Supreme Court of India
held that "B" ... Dishonour of cheque - cheque issued
by drawer in discharge of liability - complainant
alleging that cheque was issued in discharge of hand
loan given by him- Plea raised by accused that there
was no debtor creditor relationship between parties-
concurrent finding that complainant has been able to
prove his case of grant of a loan- Not liable to be
interfered with in appeal.
AIR 2004 SC 408( Goa Plast(P) Ltd. Vs. Chico Ursula
D'souza ) (A).......Dishonour of cheque for issuing
stop payment instructions there must be funds in the
accounts- reasons for stopping payment however,
can be manifold- accused must have sufficient funds
in account on date of signing presentations of cheque
, date of letter to complainant denying liability to pay
12 C.C.No.11570/2015.
sum and date on which stop payment instructions
were issued to bank. - non examination of bank
manager to ascertain whether or not there was
sufficient amount in account for payment, erroneous-
cheque on presentation to bank being dishonoured-
accused liable to be convicted. .."
On the basis of the aforesaid decisions coupled with the case
of complainant, the complainant had proved the alleged guilt of
the accused beyond all reasonable doubt.
12. In support of the case of accused, learned counsel for
the accused submitted written arguments by narrating the facts
and circumstances of the case and submits that , alleged cheque
has been issued not for discharge of legal liability and the accused
had given rebuttal evidence to the case of complainant. Hence,
accused is entitled for acquittal. In support of his contention, he
relied on the decisions reported in :
2013(3) KCCR 1940 between Smt. Lakshmi
Subramanya .Vs. D.V. Nagesh in which the Hon'ble
High court held that Negotiable Instruments Act, 1881-
Sec. 138- Acquittal-Factum of lending- complainant not
reflecting in his IT return-After appreciation of evidence
Magistrate justified in acquitting accused.
13 C.C.No.11570/2015.
2010(5) KCCR SN. 435. (B.Girish Vs.S.Ramaiah) In
which Hon'ble High Court of Karnataka held that ..
".. Presumption u/s. 118(1) is rebuttable. The
defence of the accused was that cheque was not
issued for discharge of any debt of liability.
Admittedly accused has not capacity to pay
Rs.50,000/- nor he had any savings. No
contemporary documents have come into existence.
The income tax requires that all transactions
involving Rs.20,000/- and above should be through
account payee cheque . Defence of accused is highly
probable. Accused has rebutted presumption u/s.
139 . The acquittal is justified.
On perusal of the aforesaid decisions, coupled with the
defence taken by the accused are not supported to the case of
accused to show that the accused had given rebuttal evidence to
the case of complainant .
13. On the basis of the aforesaid oral and documentary
evidence of both the complainant and accused , the complainant
had proved the alleged guilt of the accused beyond all reasonable
doubt . Though accused lead his side defence evidence and also
produced certain documents are not supported the case of
accused to show that the accused had given rebuttal evidence to
the case of complainant. Under these circumstances, the accused
14 C.C.No.11570/2015.
is liable for conviction as per law. Accordingly, I pass the
following:
ORDER
Acting under Sec.265 of Cr.P.C. accused is Convicted for the offence punishable u/s 138 of N.I.Act and accused is sentenced to pay a fine of Rs.3,000/- ( Rs..Three thousand only) . In default of payment of fine amount, the accused shall undergo S.I. for a period of Three months.
The complainant was awarded compensation of Rs.14,00,000/- (Rs.Fourteen lakhs only) i.e. double the cheque amount and the same shall be paid to the complainant by the accused within 30 days from the date of this order.
In default of payment of compensation amount, the accused shall undergo Simple Imprisonment for a period of Two years.
Office is directed to supply free copy of this judgment to the accused forthwith.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 6th day of June, 2016) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
15 C.C.No.11570/2015.ANNEXURE Witnesses examined for the Complainant:
PW.1 : Sri C.S.Venkatesh Witness examined for the accused:
DW-1 : Rangaswamy List of Documents marked for the Complainant:
Ex.P1 : Cheque Ex.P1a : Signature of the accused Ex.P2 : Endorsement Ex.P3 : Legal notice Ex.P4 : Postal receipt Ex.P5 : Letter to the post mater Ex.P6 : Returned postal cover Ex.P6a Notice in it Ex.P7 SBI bank pass book
List of Documents marked for the accused:
Ex.D1 : C.D.
Ex.D1(a) C.D. transcription.
Ex.D2 "B" extract
Ex.D2a Bangalore one receipt.
Ex.D3 & 4 Colour photos
Ex.D3a & 4a C.D.
XXII ACMM, Bangalore.
16 C.C.No.11570/2015.