Bangalore District Court
S.J.Javaraiah vs B.L.Chandrashekhar on 1 June, 2018
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 1st day of June - 2018
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.3962/2016
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : S.J.Javaraiah,
S/o.late.Javaraiah,
Aged about 60 years,
R/at No.335, Muddanna Road,
Kamakshipalya,
Meenakshinagara,
Magadi Road, Bengaluru-79.
(Rep. by Sri.Gangaiah, Adv.)
V/S
Accused : B.L.Chandrashekhar,
@ Chandrashekaraiah,
S/o.Late.G.Lenkappa,
Aged about 52 years,
Proprietor of
M/s. Maruthi Engineering Enterprises,
No.12/A, 5th Main Road,
Industrial Town Extension,
Agrahara Dasarahalli
Magadi Road, Bengaluru-79.
And also at:
No.12/A, 5th Main Road,
Agrahara Dasarahalli,
Magadi Road,
Bengaluru-79.
(Rep.by Sri.Kashivishwanathan.R,
Advocate)
Judgment 2 C.C.3962/2016
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 01.06.2018.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused on 30.12.2015 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheques for sum of Rs.3,50,000/- and Rs.2,20,000/- respectively.
2. The factual matrix of the complainant case is:
The complainant and the accused were known to each other.
The accused approached the complainant seeking for hand loan of Rs.3,50,000/- and the complainant agreed to pay the same, accordingly, paid Rs.3,50,000/- to the accused on 23.03.2011 and subsequent to the payment, the accused got executed the mortgage deed dated:23.03.2011 in favour of the complainant in respect of Judgment 3 C.C.3962/2016 the immovable property bearing Sy.No.54/5, measuring 0.22 guntas, out of which katha No.336, site No.8, measuring East to West 31 feet and North to South 36 feet and site No.15, measuring East to West 80+61/2 and North to South 35+30/2 situated at Pandithanahalli Village, Oordigere Hobli, Tumkur Taluk and District and the same got registered on 26.03.2011.
The complainant has further contended that, as seen from mortgage, the accused specifically agreed to repay the said money with bank interest with one year from the date of borrowal and redeem the said mortgage after the repayment with interest. The complainant started demanding the accused for the repayment of the said loan with interest, whenever, the complainant approached the accused, he has been postponing under the one or other pretext and failed to redeem the mortgage.
The complainant has further contended that, after his insistence for repayment of the loan, then the accused got issued the cheque bearing No.001927 dated:01.11.2015 for sum of Rs.3,50,000/- in respect of mortgage money and another cheque bearing No.001926 dated:01.11.2015 for Rs.2,20,000/- in respect of the interest, both the cheques are drawn on Vijaya Bank, Judgment 4 C.C.3962/2016 Vijayanagar Branch, Bengaluru and he assured to honour the sad cheques when the complainant presented the same.
The complainant has further contended that, at the assurance of the accused, he presented the said cheques before his banker viz., The Rajajinagara Co-operative Bank Ltd., Basaveshwaranagara Branch, Bengaluru on 16.11.2015 for encashment. But, it is utter shock and surprise to him to see the said cheques were dishonoured for the reasons "Funds Insufficient" as per the endorsement dated:18.11.2015.
The complainant has further contended that, immediately, after receipt of memo, the complainant intimated the said fact to the accused, but he drag the same one or other reasons therefore, finally on 02.12.2015 got issued legal notice through his counsel under registered post acknowledgment due, and the same was served on him on 04.12.2015. Despite that, the accused neither choosen to give reply nor pay the money covered under the cheques, thereby he committed the offence punishable under Section 138 of Negotiable Instruments Act, hence, the complaint.Judgment 5 C.C.3962/2016
3. After receipt of private complaint, the then presiding officer took the cognizance and registered the PCR. After recording the sworn statement, since found prima facie grounds to proceed against the accused got registered the criminal case in register No.III and ordered to issue the summons.
4. In response to the summons, the accused got appeared before this court and obtained the bail and required copies were supplied on him. Therefore, recorded the plea, wherein he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P11. The PW.1 subjected for cross-examination by the advocate for the accused.
6. Thereafter, 313 statement was recorded, wherein the accused denied incriminating evidence made against him and claimed to have the defence, accordingly he himself choosen to examined as DW.1 and got marked documents at Exs.D1 to D4 and also he subjected for cross-examination.
7. Heard both side.
Judgment 6 C.C.3962/2016
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount covered under the Ex.P1 and P2
- cheques bearing Nos.001926 and 001927 dated:01.11.2015 for sum of Rs.2,20,000/- and Rs.3,50,000/- respectively, drawn on Vijaya Bank, Vijayanagar Branch, Bengaluru is the existing legally recoverable debt?
2) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
Judgment 7 C.C.3962/2016
On going through the materials available on record, the fact that, the complainant and accused were known to each other is not in dispute. The fact that, the accused borrowed the loan from the complainant by mortgaging his property bearing site Nos.8 and 15 as per registered mortgage deed dated:26.03.2011 is not in dispute. The fact that, both the cheques were dishonoured for want of sufficient funds is not in dispute. The fact that, the accused is residing in the cause title address is also not in dispute.
11. To prove the case of the complainant, he himself choosen to examined as PW.1 and he choosen to filed the affidavit by reproducing the complaint averments and got marked at Exs.P1 to P11, which are:
a) Exs.P1 and P2 are the cheques bearing No.001926 and 001927 issued by the accused for sum of Rs.2,20,000/-
and Rs.3,50,000/- dated:01.11.2015 drawn on Vijaya Bank, Vijayanagar Branch, Bengaluru.
b) Exs.P1(a) and P2(a) are the signatures of accused.
c) Exs.P3 and P4 are the Bank Memos dated:18.11.2015.
d) Ex.P5 is the Legal Notice dated:02.12.2015.
e) Exs.P6 and P7 are the Postal receipts.
f) Exs.P8 and P9 are the Postal Acknowledgment Cards received by one Yatish.C in the address of the accused dated:04.12.2015.
Judgment 8 C.C.3962/2016
g) Ex.P10 is the Registered mortgage deed
dated:23.03.2011.
h) Ex.P11 is the copy of the police complaint lodged by the complainant to the Police Commissioner, Bengaluru dated:03.06.2017 regarding the creation of redemption of mortgage deed by the accused impersonating the complainant.
12. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citation and relied upon same, it is;
a) AIR 2010 C 1898
b) 2017 (2) ALR 12
13. No doubt, while recording statement of accused under Section 313 of Cr.P.C., he denied the incriminating evidence against him and not taken specific defence, but himself choosen to examined as DW.1 and filed the affidavit by specifically contended in brief as follows:
The accused was only borrowed sum of Rs.2,15,000/- and by mentioning Rs.1 interest, the complainant got obtained the registered mortgage deed in respect of the site No.8 and 15. The accused was paid up to date interest till 20.12.2012 and further he paid Rs.50,000/- by way of cash and in turn the complainant got Judgment 9 C.C.3962/2016 release the mortgage deed in respect of the site No.8 by way of executing the registered redemption of mortgage deed/release deed.
14. The DW.1 has further contended that, further the complainant was refused to receive the mortgage money with interest by cheque or demand draft, but he received sum of Rs.40,000/- by way of cash on 28.09.2013, Rs.80,000/- by way of cash on 09.11.2013, Rs.50,000/- by way of cash on 13.09.2014, Rs.50,000/- each through cheque bearing No.38895109 dated:17.08.2015 and another cheque bearing No.38895108, both the cheques are drawn on Vijaya Bank, Vijayanagar Branch, Bengaluru as full and final settlement of loan amount in respect of the mortgage deed dated:23.03.2011 and in all the accused has paid sum of Rs.3,20,000/-.
15. Despite the accused clear the mortgage money with interest as per the mortgage deed dated:23.03.2011, the complainant one or other grounds postponing the execution of relinquishment deed or release deed, but misused two blank cheques issued by him and questioned the same, then the complainant was agreed to return the 2 cheques, but he fails todo so with malafide intention make unlawful gain by misusing the blank cheques. Not only taken the Judgment 10 C.C.3962/2016 said defence also relied upon the documents at Exs.D1 to D4. They are:
a) Ex.D1 is the Certified copy of Mortgage deed dated:23.03.2011 executed by accused in favour of the complainant in respect of site bearing Nos.8 and 15.
b) Ex.D2 is the registered redemption of mortgage deed dated:20.12.2012 in respect of site No.8.
c) Ex.D3 is the Encumbrance Certificate, and
d) Ex.D4 is the Statement of Account pertaining to accused.
16. The DW.1 was also subjected for cross-examination in detail. Apart from lead defence evidence, the DW.1 through his counsel has produced the citations and relied upon same. They are:
a) ILR 2006 KAR 3579
b) ILR 2008 KAR 3635
c) 2009 BC 668 (DB)
d) 2009 BC 224
e) 2009 BC 85
f) ILR 2008 KAR 4629
g) 2009 BC 321
h) 2011 Cr.L.J 552
17. While appreciating the materials available on record, this court has gone through dictums relied by both the parties coupled with the relevant provisions dealt with the facts and issue. Judgment 11 C.C.3962/2016
18. No doubt, in this case, the compliance of mandatory provision by the complainant subjected to prove the existing of legally recoverable debt not in dispute. In brief it is the specific case of the complainant that, though the accused obtained the loan of Rs.3,50,000/- on 23.03.2011, he agreed to pay the interest thereon and clear the same within 1 year and redeemed the mortgage deed. For the payment of same, he got issued the Exs.P1 and P2 cheques in his favour. From the reading of the contents of the complaint averments and allegations, the PW.1 has projected his case that, as well as the accused not paid the mortgage money, the complainant brought the present case. Therefore, it is the burden on the accused to rebut the Statutory Presumption lies in favour of the complainant as per Section 118 and 139 of Negotiable Instruments Act. It is significant fact to note that, legal notice, complaint averments as well as affidavit evidence does not disclose of single or about the payment made by the accused in respect of the said transaction. No doubt, during the course of cross- examination of PW.1 he also denied that, the Exs.P1 and P2 cheques were issued blank with signed by the accused person as a security at the time of creating mortgage in respect of the loan. In view of the accused taken the specific defence as well as production Judgment 12 C.C.3962/2016 of documents at Exs.D1 to D4, which it appears to be attack on the claim put forth by the complainant, definitely the reveals, burden shifted on the complainant to prove the very transaction of existence of legally recoverable debt as enumerated under Section 138 of Negotiable Instruments Act.
19. No doubt, the accused during the course of cross- examination as well as defence evidence as contended that, he not borrowed the loan of Rs.3,50,000/-, but only he borrowed sum of Rs.2,50,000/-, while executing mortgage deed, at the instance of the complainant in order to pay the interest of Rs.1 lakh well in advance the complainant has made the recital regarding the amount paid was Rs.3,50,000/-. On going through the Ex.P10 as well as Ex.D1 which are none other than the certified copy of registered mortgage deed dated:23.03.2011, it clearly discloses that, the mortgage amount was Rs.3,50,000/-, thereon interest has to be paid was clearly recited. In order to show that, against the admitted documents stated above, only advance sum of Rs.2,50,000/- there is no counter materials produced by the accused. Therefore, the contention of the accused regarding only borrowed sum of Rs.2,50,000/- is ruled out.
Judgment 13 C.C.3962/2016
20. From the Ex.P10/Ex.D1, it made clear that, the accused liable to pay sum of Rs.3,50,000/-, the mortgage money with interest thereon in respect of the property mortgage bearing site Nos.8 and 15. The complainant through out the case is not whispered anything the payment made by the accused, subsequently, though he undertakes to pay within one year, till filing the present case on 30.12.2015, there was already lapse of more than 4 years regarding borrowing of loan, the accused not paid the money is highly difficulty to accept, in view of the evidence available on record. No doubt, the complainant in the present case, not whispered about specifically when the accused was handed over the Exs.P1 and P2 cheques in his favour.
21. From the reading of the date in the said cheques on 01.11.2015 with also made clear that, about 4 years from the date of obtaining loan the accused not paid the money. Even, taking into interest calculated at the Ex.P1, 2% p.m. what will be the interest on the loan borrowed by the accused is also not calculated by the complainant through out his pleadings. But specifically contended that, the Ex.P2 cheque was for Rs.3,50,000/- and Ex.P1 cheque for Rs.2,20,000/- both have issued for payment of principal and Judgment 14 C.C.3962/2016 interest. How the interest is Rs.2,20,000/- is not been explained by the complainant. The accused specifically contended that, at the time of borrowing of loan, apart from executing the registered mortgage deed, he got issued blank cheque at Ex.P1 and P2 and the same were misused. He also specifically contended that, after the creation of mortgage, he repaid the mortgage money in its entirety and at the time of clearing mortgage money of Rs.50,000/- with interest, the complainant got executed the Ex.D2 redemption of mortgage deed. No doubt, the said document was confronted to the PW.1 during the course of his cross-examination, wherein, he specifically deposes that:
"£Á£ÀÄ DzÁAiÀÄ vÉjUÉ PÀlÄÖªÀÅ¢®è. 15 ªÀµÀðUÀ½AzÀ DgÉÆæAiÀÄ ¥ÀjZÀAiÀÄ EzÉ. ²ªÀtÚ J£ÀÄߪÀgÀ ªÀÄÆ®PÀ DgÉÆæAiÀÄ ¥ÀjZÀAiÀÄ DVzÉ. ¢.23.03.2011gÀ 15 ¢£ÀUÀ¼À »AzÉ DgÉÆæ £À£ÀUÉ gÀÆ.5 ®PÀë ºÀt ¨ÉÃPÉAzÀÄ PÉýzÀÝgÀÄ. DgÉÆæUÉ £ÀUÀzÀÄ gÀÆ¥ÀzÀ°è ºÀt ¤ÃrzÉ. ºÀt PÉÆlÖ ¸ÀªÀÄAiÀÄzÀ°è £À£Àß ºÉAqÀw EzÀÝgÀÄ. DgÉÆæUÉ ºÀt PÉÆnÖzÀÝPÉÌ ¨ÀszÀævÉUÁV 2 ¸ÉÊmïUÀ¼À£ÀÄß (¸ÉÊmï £ÀA.8 ªÀÄvÀÄÛ 15) EªÀÅUÀ¼À£ÀÄß ªÀiÁnðUÉÃeï ªÀiÁr PÉÆnÖgÀÄvÁÛgÉ. ªÀiÁnðUÉÃeï ªÀiÁqÀĪÁUÀ ¨ÀszÀævÉUÁV DgÉÆæ SÁ° ZÉPÀÄÌUÀ¼À£ÀÄß ¤ÃrgÀ°®è. £Á£ÀÄ DgÉÆæUÉ gÀÆ.2,50,000/- ºÀt PÉÆnÖzÀÄÝ CzÀgÀ°è gÀÆ.1 ®PÀë §rØ ¸ÉÃj¹ MlÄÖ gÀÆ.3,50,000/- JAzÀÄ CzsÁgÀ ¥ÀvÀæ Judgment 15 C.C.3962/2016 ªÀiÁrPÉÆArgÀÄvÉÛãÉAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæ £À£ÀUÉ ¥Àæw wAUÀ¼ÀÄ ¸ÀjAiÀiÁV §rØ ºÀt vÀAzÀÄ PÉÆqÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. ¢.20.12.2012gÀAzÀÄ DgÉÆæ gÀÆ.50,000/- C¸À®Ä eÉÆvÉUÉ §rØ ºÀtªÀ£ÀÄß PÉÆmÁÖUÀ ¸ÉÊmï £ÀA.8gÀ ªÀiÁnðUÉÃeï RįÁ¹ ¥ÀvÀæªÀ£ÀÄß §gÉzÀÄPÉÆmÉÖ£ÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è."
22. From the reading of the testimony of PW.1 above, it made clear that, the PW.1 is not an income tax assessee, but he knew the accused since 15 years through one Shivanna. He also deposed that, prior to 15 days earlier on 23.03.2011 the accused asked him of Rs.5 lakhs, he paid the money in cash, at that time, his wife was present and at that time the accused got executed the mortgage deed in respect of the site No.8 and 15. But he denied that, at that point of time, the accused got issued 2 blank cheques. The PW.1 denied that, only Rs.2,50,000/- was lent including Rs.1 lakh interest, it was mentioned as Rs.3,50,000/- in mortgage deed. The PW.1 also denied that, the accused was regularly paying interest in respect of the mortgage money and on 20.12.2012 the accused paid Rs.50,000/- with principal amount as interest and in turn, the PW.1 got executed the redemption of mortgage deed in respect of site No.8. From which, it is clear that, the said mortgage deed was Judgment 16 C.C.3962/2016 tendered to him, it is the registered one though, he denied the same, the said document at Ex.D2 marked through the DW.1. The DW.1 during his cross-examination nothing has whispered anything about, the execution of the said redemption of the mortgage deed, where it was forged, created or misrepresented. But he kept mum and nothing whispered anything about Ex.D2 during his cross- examination, but from the available record produced by him Ex.P1 he lodged complaint on 30.06.2017 after his cross-examination by contending that, the Ex.D2 was forged, misrepresented him, he not executed the same. By virtue of the redemption of mortgage deed in respect of the site No.8, the accused, his wife and his children got sold the site No.8 in favour of one K.Anthoni Swamy and cheated him. The Ex.P11 is the complaint lodged after he deposed before the court. Though, he made several allegations regarding creation of forged about Ex.D2 redemption of mortgage deed in respect of site No.8 nothing has whispered in his cross-examination as discloses that above. But in the complaint he contended that, it was forged. On meticulous reading and perusal of Ex.D2, it is the original redemption of mortgage deed dated:20.12.2012, wherein it is specifically mentioned that, the mortgage amount was Rs.3,50,000/- as per mortgage dated:26.03.2011 borrowed by the Judgment 17 C.C.3962/2016 accused and the same was repaid with interest and at the request of the accused, the complainant was executed the redemption/release or mortgage dated:26.03.2011. The relevant portion of the said recitals at Ex.D2 runs thus:
"DzÀ £Á£ÀÄ M¦à §gɹPÉÆlÖ µÀqÀÆå¯ï ¸ÀéwÛ£À DzsÁgÀ RįÁ¸É ¥ÀvÀæ. DzÁV £À£Àß ¨Á§ÄÛ ¸ÉÊlÄUÀ¼À£ÀÄß gÀÆB3,50,000/- UÀ½UÉ DzsÁgÀ ªÀiÁr¹PÉÆArzÀÄÝ, ¸ÀzÀj DzsÁgÀ ¥ÀvÀæªÀÅ vÀĪÀÄPÀÆgÀÄ vÁ®ÆèPÀÄ ¸À¨ï jf¸ÁÖægï gÀªÀgÀÄ PÀbÉÃjAiÀÄ°è 1£Éà ¥ÀŸÀÛPÀzÀ zÀ¸ÁÛªÉÃdÄ £ÀA.nJAPÉ-1-14049-2010-11 DV nJAPÉr 339£ÉÃzÀÝgÀ°è ¢£ÁAPÀB26.03.2011 gÀAzÀÄ jf¸ÀÖgï DVgÀĪÀÅzÀÄ ¸ÀjAiÀĵÉÖ.
¸ÀzÀj DzsÁgÀzÀ ¨Á§ÄÛ gÀÆB3,50,000/- UÀ¼À°è gÀÆB50,000/- gÀÆ¥Á¬ÄUÀ¼ÀÄ ªÀÄvÀÄÛ ºÁUÀÆ EzÀPÉÌ vÀUÀ®ÄªÀ §rØAiÀÄ£ÀÄß ¤ÃªÀÅ £À£ÀUÉ ¥ÁªÀw ªÀiÁrgÀÄwÛÃgÁ. ¤ÃªÀÅ µÀqÀÆå¯ï ¸ÉÊl£ÀÄß RįÁ¸É ªÀiÁrPÉÆqÀ¨ÉÃPÉAzÀÄ £À£ÀߣÀÄß PÉýzÀÝgÀ ªÉÄÃgÉUÉ £Á£ÀÄ ¸ÀºÀ M¦àPÉÆAqÀÄ µÀqÀÆå¯ï£À°è £ÀªÀÄÆzÀÄ ªÀiÁrgÀĪÀ ¸ÉÊl£ÀÄß RįÁ¸É ªÀiÁrPÉÆnÖgÀÄvÉÛÃ£É E£ÀÄß ªÀÄÄAzÉ µÀqÀÆå¯ï£À°è £ÀªÀÄÆzÀÄ ªÀiÁrgÀĪÀ ¸ÉÊ£ÀÄß ¤ªÀÄä EµÁÖ£ÀĸÁgÀ C£ÀĨÀs«¹PÉÆAqÀÄ ºÉÆÃUÀ§ºÀÄzÀÄ."
23. On meticulous appraisal of recitals of the Ex.D2 it discloses that, the complainant was admitted that, the accused was repaid the principal mortgage money of Rs.3,50,000/- with interest of Judgment 18 C.C.3962/2016 Rs.50,000/- on 20.12.2012 and also specifically resisted that, the interest accumulated on original mortgage money of Rs.3,50,000/- was paid by the accused. Though, the PW.1 has denied the execution of the said document, he fails to produce any contra document before this court. Mere filing of complaint at Ex.P11 is not enough and the said Ex.D2 as on this date stands remains legal. The said Ex.D2 is a registered document, where in, the photographs mere impression with signature of the complainant and accused could be seen at hind side of page No.2. When the said registered document was duly registered and executed before the Sub- Registrar Officer, that too, on 20.12.2012 what purpose the complainant has withheld the same are not discloses the true facts before this court is not been explained by him. The very act of the complainant though he was part of the said relinquishment deed at Ex.D2 he withheld the said document and not whispered anything about the payment cleared by the accused regarding proving of allegations made at Ex.P11 without anything whispered during his cross-examination. Therefore, the accused got proved that, Ex.D2 relinquishment deed was executed by the complainant only, on or after clear the mortgage money with its entire interest. No doubt, the Ex.D2 was for in respect of site No.8. The site No.15 was also Judgment 19 C.C.3962/2016 mortgaged as per Ex.D1. At the time of borrowing of loan got executed mortgage deed and created encumbrance certificate on his property. The complainant was very much deligent while doing so. Accordingly, the accused as per Ex.D2 is also deligent in getting the execution of redemption of mortgage deed by clear the entire mortgage money with interest thereon has executed by the PW.1. Either complainant or accused not whispered anything about why the relinquishment deed was not executed in respect of site No.15. Since, it is not the claim of both the parties and sites not domain of this court discussing the said fact, in view of the documentary evidence available on record which got executed before the sub- registrar at Ex.D2, it clearly manifest that, entire loan amount with interest has been paid by the accused to the complainant. Though, the complainant concede the said fact projected his case, as the accused not paid the principal amount with interest. The very conduct of the complainant is condemned again.
24. During the course of cross-examination of PW.1, it was clear suggestion made to the PW.1 has reproduced above that:
"¢.28.09.2013gÀAzÀÄ DgÉÆæ £ÀªÀÄä ªÀÄ£ÉUÉ gÀÆ.40,000/- ºÀtªÀ£ÀÄ PÉÆnÖgÀÄvÁÛgÉAzÀgÉ ¸ÀjAiÀÄ®è. ¢.09.11.2013gÀAzÀÄ DgÉÆæ Judgment 20 C.C.3962/2016 gÀÆ.80,000/- ºÀtªÀ£ÀÄß ¤ÃrgÀÄvÁÛgÉAzÀgÉ ¸ÀjAiÀÄ®è. ¢.13.09.2014gÀAzÀÄ DgÉÆæ £À£ÀUÉ gÀÆ.50,000/- ºÀt ¤ÃrgÀÄvÁÛgÉAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæ £À£ÀUÉ 2 ZÉPÀÄÌUÀ¼ÁzÀ 38895109 ªÀÄvÀÄÛ 38895108 vÀ¯Á gÀÆ.50,000/- UÀ½UÉ ¤ÃrgÀÄvÁÛgÉ, ¸ÀzÀj ZÉPï ºÀt £À£Àß SÁvÉUÉ ¢.17.08.2015 ªÀÄvÀÄÛ ¢.19.08.2015gÀAzÀÄ dªÀiÁ DVgÀÄvÀÛzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæ £À£ÀUÉ PÉÆqÀ¨ÉÃPÁzÀ J®è ºÀtªÀ£ÀÄß PÉÆnÖgÀÄvÁÛgÉAzÀgÉ ¸ÀjAiÀÄ®è. DzsÁgÀ ¥ÀvÀæªÀ£ÀÄß RįÁ¹ ªÀiÁr PÉÆqÀÄvÉÛãÉAzÀÄ ºÉý ¸ÀªÀÄAiÀÄ ªÀÄÄAzÀÆr RįÁ¹ ¥ÀvÀæ §gÉzÀÄPÉÆqÀzÉ DgÉÆæUÉ £ÉÆÃn¸ï ¤ÃrzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. DgÉÆæUÉ £ÉÆÃn¸ï vÀ®Ä¦zÀ £ÀAvÀgÀ £À£ÀߣÀÄß ¨sÉÃnAiÀiÁzÁUÀ E£ÀÆß ºÉaÑ£À gÀÆ.50,000/- ºÀt PÉÆlÖgÉ DzsÁgÀ ¥ÀvÀæªÀ£ÀÄß RįÁ¹ ªÀiÁr 2 ZÉPÀÄÌUÀ¼À£ÀÄß ªÁ¥À¸ï PÉÆqÀÄvÉÛãÉAzÀÄ ºÉýzÉÝãÉAzÀgÉ ¸ÀjAiÀÄ®è,"
25. During the cross of PW.1, he specifically denied the payment made by the accused amounting of Rs.2,20,000/- including through cheques bearing Nos.38895109 and 38895108 for Rs.50,000/- each. The entire payment made by the accused was denied by the complainant and it was strong suggestion made to him that, though the accused paid the entire money to complainant was postponing for execution of relinquishment deed. The PW.1 has denied that, by demanding additional money of Rs.50,000/- in respect of executing relinquishment deed and return of two cheques. From Judgment 21 C.C.3962/2016 the said contention of the PW.1, it made clear that, though as per bank statement of the accused at Ex.D4 sum of Rs.50,000/- each on 17.08.2015 and 19.08.2015 was remitted to the account of the PW.1 and Rs.1 lakhs the said factum was conceded by the PW.1. But, during the course of cross-examination of PW.1, it was the suggestion made to the PW.1 that, the said money was received by the PW.1 only in respect of subsequent loan issued by the complainant to the accused. If at all, as per the say of the complainant, earlier loan was due, what was the compelling circumstances to him to re-issue the loan to the accused, it clearly discloses the attitude of the complainant for diverting the mind of the court for some other transaction without any base or logic, therefore, the very act of the complainant is also deprecated. During the cross of PW.1 it was suggestion made to the DW.1 regarding Ex.D2 redemption of mortgage deed stating it was forged and created, the complainant was not executed the same. The very person who executed the said document was before this court, when confronted to him at Ex.D2, as alleged in his own complaint at Ex.P11, he nothing whispered about the genuineness or questioned sanctity of the said document, but he baldly denied the same without any base. Therefore, the suggestion put forth by the Judgment 22 C.C.3962/2016 advocate for the complainant, the DW.1 does not ground to suspect the genuineness of the Ex.D2.
26. During the course of cross-examination of PW.1, it was the suggestion made to him that, sum of Rs.2,20,000/- was paid to the complainant as interest on the principal amount of mortgage. No doubt, during the course of cross-examination of DW.1, he deposed that, there is no document in regard to the payment made by him to the complainant on 20.12.2012, 28.09.2013, 09.11.2013, 09.11.2013 and 13.09.2014. If really, no document was there, regarding the payment so made by the accused, mere denial of the PW.1, itself is not enough, but he is specifically contended in the Ex.D2 as per its recitals stating as re-produced in the earlier portion of the reasons that, the accused was paid the principal mortgage money of Rs.3,50,000/- + Rs.50,000/- and the interest accumulated thereon was been paid by the accused to the complainant, hence, he came forward to execute the Ex.D2. The documentary evidence and its recitals at Ex.D2, that took, it is registered document which base the photographs sign and signature of the complainant, it clearly manifest that, though, he received the entire money, and got executed the relinquishment deed in respect of the site No.8 only. Judgment 23 C.C.3962/2016 But, for the reasons best known, not executed the relinquishment deed in respect of the site No.15 and return the cheques at Exs.P1 and P2 to the complainant for the reasons alleged by the accused through out the case. The PW.1 has utterly fails to demonstrate that, the accused is liable to pay the amount covered under the cheques, in view of the admitted payment made by the accused through cheques as well as the payment made mentioned in the recitals at Ex.D2. From which, it is clear that, there is no due as on the date of filing the present complaint, but it made clear that, the complainant has misused the cheques obtained from the accused for the reasons best known to him. Despite, he received the amount of mortgage, he filed the present case without disclosing true material facts and misused the court machinery for recover the unknown money against his own complaint averments as well as documentary evidence. The very act of the complainant has to be deprecated, not only acquitted the accused, but also punishing the complainant by imposing the penalty of Rs.10,000/- is very much necessary. Otherwise, the complainant without any base only on account of possessing the cheques and others go on filing the case for recover huge amount without any base and logic has to be deprecated and thereby misuse the public time and energy for the Judgment 24 C.C.3962/2016 selfishness of the complainant. Therefore, it is a fit case to impose penalty of Rs.10,000/- on the complainant. If, the complainant failed to pay the said penalty within appeal period, the same shall be recover as land revenue as per law by complying coercive method of recover the same. If, that is done it will meet the ends of justice and massage to the people like complainant who misused the cheque and court as per his whims without any sound reason.
27. In the case on hand, the accused has clearly made out a probable defence in respect of his non-liability to pay the cheques amount mentioned in Exs.P1 and P2. Therefore, it is considered view of this court that, the accused has to be acquitted and there is no bonafide reason in filing the present complaint, the mode adopted by the complainant has to be deprecated by imposing fine of Rs.10,000/-. As discussed above the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 and 2 are Negative.
28. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 25 C.C.3962/2016
ORDER Acting under Section 255(1) of Cr.P.C.
the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
Further, as per Section 250(2) of Cr.P.C. the complainant without any prima facie grounds made the false allegations against the accused and prosecuted the matter all along, hence, he shall pay the fine of Rs.10,000/- within 30 days. The said fine amount shall be payable to the accused as compensation.
If, the complainant failed to pay the fine within stipulated period, than the same shall be recovered as land revenue.
The bail bond and cash security/surety bond of the accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 1st day of June - 2018) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 26 C.C.3962/2016
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : S.J.Javaraiah List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques Exs.P1(a) & P2(a) : Signatures of accused Exs.P3 & P4 : Bank endorsements Ex.P5 : Office copy of legal notice Exs.P6 & P7 : Postal receipts Exs.P8 & P9 : Postal Acknowledgment cards Ex.P10 : Registered mortgage deed Ex.P11 : Copy of complaint dtd:30.06.2017
List of Witnesses examined on behalf of the defence:
DW.1 : B.K.Chandrashekaraiah List of Exhibits marked on behalf of defence:
Ex.D1 : CC of mortgage deed
Ex.D2 : Redemption/release deed
Ex.D3 : Encumbrance certificate
Ex.D4 : Statement of account
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 27 C.C.3962/2016
01.06.2018.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide
separate order.
*****
ORDER
Acting under Section 255(1) of Cr.P.C. the
accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
Further, as per Section 250(2) of Cr.P.C. the complainant without any prima facie grounds made the false allegations against the accused and prosecuted the matter all along, hence, he shall pay the fine of Rs.10,000/- within 30 days. The said fine amount shall be payable to the accused as compensation.
If, the complainant failed to pay the fine within stipulated period, than the same shall be recovered as land revenue.Judgment 28 C.C.3962/2016
The bail bond and cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.