Bangalore District Court
A. Nishar Ahmed vs Khaleemulla on 24 December, 2018
C.C.NO.30083/2017
IN THE COURT OF THE XXII ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
Present: Smt. HEMA PASTAPUR,
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 24th day of December 2018
C.C.No.30083/2017
Judgment under section 355 of Code of Criminal
Procedure
Complainant : A. Nishar Ahmed,
s/o Abubakar,
Aged about 44 years,
Residing at No.1851,
12th main road, II phase,
RPC Layout, Vijayanagar,
Bengaluru-560 040.
(By Shri S. S. Hiremath, Advocate)
Vs
Accused : Khaleemulla,
Aged about 49 years,
No.115 and 116,
Masjid E Kareem Madrasa,
E Talimu Al Quran,
Back side House, 11th cross,
Karimsab Layout,
1
C.C.NO.30083/2017
Srigandhanagar,
Peenya 2nd stage,
Vishwaneedam Post,
Bengaluru - 560 091.
(By Shri Basavaraju. P, Advocate)
JUDGMENT
That, the complainant has filed the private complaint under section 200 of Code of Criminal Procedure, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the brief facts of the present case are as under:-
1. That, the complainant and accused are known to each other since several years and the accused in pursuance of said acquaintance in the month of April 2012 had requested the complainant for advancing him a sum of Rs.4,00,000/-
for the improvement of his business and the complainant considering the said needs of the accused on 29.05.2012 had advanced him the said amount in cash. That, the accused at the time of availing the said loan amount though, had agreed to repay the same within one year from the date 2 C.C.NO.30083/2017 of its availment but, failed to do so and on persistent demands made by the complainant he issued in favour of the complainant a cheque bearing No.023133 dated:-
25.03.2017 for a sum of Rs.4,00,000/- drawn on Indian Overseas Bank, Malleshwaram branch, Bengaluru. That, the complainant had presented the said cheque for encashment in State Bank of Mysore, Jayanagar branch, Bengaluru and on 28.03.2017 the said cheque was returned with the shara as "Funds insufficient". That, the complainant for aforesaid acts of the accused on 27.04.2017 had issued the legal notice to him and the said notice was duly served upon him on 28.04.2017. That, as the accused in spite of receiving the said notice failed to comply with the terms of the same the complainant has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant, this Court registered the case in concerned register and took the cognizance for the offence punishable under section 138 of the Negotiable Instruments Act and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record registered the case 3 C.C.NO.30083/2017 against the accused in Register No. III and issued summons to him. That, the accused in pursuance of said summons appeared before this Court through his learned counsel and he was enlarged on bail. That, the substance of accusation of the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to tried. That, after completion of the complainant side evidence the statement of the accused as contemplated under section 313 of the Code of Criminal Procedure, has recorded and read over him and he denied all incriminating evidence appearing against him.
3. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in his favour a Cheque bearing No.023133 dated:-25.03.2017 for a sum of Rs.4,00,000/- drawn on Indian Overseas Bank, Malleshwaram branch, Bengaluru ?
4
C.C.NO.30083/2017
2. Whether the complainant has further proved that, the said cheque was dishonoured as "Funds Insufficient" in the account of the accused and thereby the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act?
3. Whether the complainant has complied with the provisions of section 138(b) of the negotiable Instruments Act?
4. What order?
4. That, the complainant to substantiate his aforesaid contentions has deposed himself as PW1 and got marked the documents at EXs.P1 to 5 and closed his side. That, the complainant in cross - examination of the accused has got marked one Photo and due to oversight the same was marked as EX.P4 instead of EX.P6.
That, the accused to substantiate his contentions has deposed himself DW1 and got marked the document at EX.D5 and closed his side. That, the accused in cross - examination of the complainant has got marked the documents at EXs.D1 to 4.
5
C.C.NO.30083/2017
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the NEGATIVE Point No.2 :- In the NEGATIVE Point No.3 :- In the NEGATIVE Point No.4:- As per the final order for the following:-
REASONS
6. Point No.1:- It is specific contention of the complainant that, in the month of April 2012 the accused had requested him for advancing him a sum of Rs.4,00,000/- for the improvement of his business and considering his said needs on 29.05.2012 he advanced him the said amount in cash.
7. It is pertinent to note here that, the accused has taken a specific defense that he had not availed any loan amount from the complainant.
8. It is pertinent to note here that, the accused has placed his reliance on following decisions:-
1. Sri H. Manjunath -vs- Sri A. M. Basavaraju, reported in ILR 2014 KAR 6572 wherein it has held that in absence of material particulars of the 6 C.C.NO.30083/2017 transaction in the complainant, the acquittal of the accused is justified.
2. G. Pankajakshi Amma and others -vs- Mathai Mathew (Dead) through Lrs., and another, reported in (2004) 12 Supreme Court Cases 83 wherein it has held that if there are unaccounted transactions then they are illegal transactions.
No court can come to the aid of the party in an illegal transaction.
3. Shiva Murthy -vs- Amruthraj, reported in ILR 2008 KAR 4629 wherein it has held that it is only after satisfying that the complainant has proved the existence of legally enforceable debt or liability, the Courts could have proceeded to draw presumption under Section 139 of the N. I. Act and thereafter find out as to whether or not the accused has rebutted the said presumption.
4. Sanjay Mishra -vs- Ms. Kanishka Kapoor @ Nikki and Anr., reported in AIR 2009 (NOC) 2337 (BOM.) 7 C.C.NO.30083/2017 wherein it has held that failure by complainant to disclose the amount in his Income - Tax - Returns or Books of Accounts - Sufficient to rebut presumption under S.139.
5. K. Subramani -vs- K. Damodar Naidu, reported in (2015) 1 Supreme Court Cases 99 wherein it has held that Legally recoverable debt and 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.
6. Ramdas s/o Khelu Naik -vs- Krishnaprasad s/o Vishnu Naik, reported in (2014) 12 Supreme Court Cases 625 wherein it has held that Debt, Financial and Monetary Laws - Negotiable Instruments Act, 1881 - S. 138 - Dishonour of cheque - Debt other liability for which cheque issued, not established - Acquittal restored.
8
C.C.NO.30083/2017
7. John K. John -vs- Tom Varghese and anr., reported in 2007 AIR SCW 6736 wherein it has held that Court can take notice of conduct of parties.
9. It is significant to note here that, the burden heavily lies upon the complainant to probabalise that on 29.05.2012 he advanced a sum of Rs.4,00,000/- to the accused in cash. It is significant to note here that, the accused in cross - examination of the complainant had got marked the EXs.D1 to 4. It is pertinent to note here that, the EX.D1 is the certified copies of Order sheet in C. C. No.867/2017, Private complaint, List of witness, Cheque bearing No.233702, Endorsements issued by the State Bank of India dated:-
17.11.2017, Legal notice dated:-01.12.2015, Postal receipts, Postal acknowledgement, Statement of account of the complainant pertaining to Deena Bank, Brigade road branch, Bengaluru. It is pertinent to note here that, the complainant had lodged the said complaint against one Shri Nayaz.
It is pertinent to note here that, the EX.D2 is the certified copies of Order sheet in C. C. No.13434/2016, Judgment dated:-07.06.2018 and Private complaint. It is 9 C.C.NO.30083/2017 pertinent to note here that, the complainant had lodged the said complaint against one Shri Umashanker G. K. It is pertinent to note here that, the EX.D3 is the certified copies of Order sheet in C. C. No.3293/2018, Private complaint, List of witness, Cheque bearing No.121014, Endorsement issued by the State Bank of Mysore dated:-
03.04.2017, Legal notice dated:-27.04.2018, Postal receipts, Postal acknowledgement, Track consignments, Medical prescriptions and Bills and Medical certificate issued by the Medical Health centre pertaining to the complainant. It is pertinent to note here that, the complainant had lodged the said complaint against one Shri Avinash. T and another.
It is pertinent to note here that, the EX.D4 is the certified copies of Private complaint in C. C. No.22184/2017, List of witness, Cheque bearing No.326394, Challan of State Bank of India, Endorsement issued by the State Bank of India, dated:-08.05.2017, Legal notice dated:-07.06.2017, Postal receipts and Postal acknowledgements. It is pertinent to note here that, the complainant had lodged the said complaint against one Shri Sagayanathan. K. 10 C.C.NO.30083/2017 It is pertinent to note here that, as stated above the complainant has contended that on 29.05.2012 he advanced a sum of Rs.4,00,000/- to the accused. It is pertinent to note here that, the complainant to probabalise that on 29.05.2012 he got a substantial amount has mainly relied upon the EX.P4 - his Statement of account pertaining to Deena Bank, Brigade road branch, Bengaluru and EX.P5 - the certified copy of Agreement of sale. It is significant to note here that, the complainant in his cross - examination has deposed that as he sold his property situated at BTM Layout he got a sum of Rs.56,00,000/- as an advance amount.
It is pertinent to note here that, the complainant in his cross - examination in page No.11 has specifically deposed that, three days prior to 29.05.2102 he withdrawn a sum of Rs.10,00,000/- from his said account and in that amount he advanced a sum of Rs.4,00,000/- to the accused. It is significant to note here that, from perusal of EX.P4 it clearly appears that prior to three days of 29.05.2012 the complainant had not at all withdrawn a sum of Rs.10,00,000/- from his said account. 11
C.C.NO.30083/2017 It is significant to note here that, the complainant in his cross - examination in page No.16 at 7 th line has deposed that, ¸ÁQëUÉ FUÀ ¤ÃªÀÅ ¤ªÀÄä »A¢£À ªÀÄÄzÀÝwÛ£À ¥Ánà ¸ÀªÁ°£À°è ¢ B 29.05.2012 gÀ 3 ¢£ÀUÀ¼À ªÀÄÄAavÀªÁV DgÉÆæUÉ PÉÆqÀ®Ä 4 ®PÀëgÀÆUÀ¼À£ÀÄß qÁæ ªÀiÁrPÉÆArgÀÄwÛÃj JAzÀÄ ºÉýzÀÄÝ ¸ÀzÀj 4 ®PÀëgÀÆUÀ¼À£ÀÄß ¤ÃªÀÅ qÁæ ªÀiÁr PÉÆArgÀĪÀ §UÉÎ ¤¦-4 gÀ°è £ÀªÀiÆzÀÄ EgÀĪÀÅ¢®èªÉAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë CzÀgÀ §UÉÎ vÀªÀÄUÉ UÉÆwÛgÀĪÀÅ¢®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ.
It is significant to note here that, the complainant in his cross - examination in page No.9 at 1 st line has further 12 C.C.NO.30083/2017 specifically admitted that, ¸ÁQëUÉ FUÀ ¤ÃªÀÅ DgÉÄÁæUÉ ¢ B 29.05.2012 gÀAzÀÄ ºÀtªÀ£ÀÄß PÉÆnÖgÀÄwÛÃj JAzÀÄ ºÉýzÀÄÝ CzÉà ¢£À ¤ªÀÄä ¨ÁåAPï SÁvɬÄAzÀ ºÀtªÀ£ÀÄß qÁæ ªÀiÁr PÉÆArgÀÄwÛÃgÁ JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë ºËzÀÄ JAzÀÄ ºÉüÀÄvÁÛgÉ.
It is pertinent to note here that, from said evidence of the complainant it clearly appears there is inconsistency in his evidence and falsely sworn before the Court. It is significant to note here that, the said evidence of the complainant has strike out the every root of the present complaint lodged by him against the accused. It is pertinent to note here that, from the said evidence of the complainant and EX.P4 it clearly appears either prior to 29.05.2012 or on 29.05.2012 he had not at all withdrawn any amount from his said account and not at all advanced a sum of Rs.4,00,000/- to the accused.
13
C.C.NO.30083/2017 It is pertinent to note here that, the complainant in EX.D2 has specifically contended that on 29.05.2012 he advanced a sum of Rs.5,00,000/- to the said Avinash and in EX.D3 has specifically contended that on 29.05.2012 he advanced a sum of Rs.9,00,000/- to the said Umashaker. It is pertinent to note here that, the complainant in his cross - examination in page No.10 at 15th line has specifically admitted that as per his Account statement produced in EX.D1 on 29.05.2012 he withdrawn a sum of Rs.9,00,000/-. It is pertinent to note here that, from perusal of Statement of account produced by the complainant in EX.D1 it appears that on 29.05.2012 he withdrawn a sum of Rs.9,00,000/-. It is significant to note here that, the complainant in his cross - examination in page No.15 has deposed and admitted that in said amount of Rs.9,00,000/- he paid a sum of Rs.5,00,000/- to the said Avinash and Rs.9,00,000/- to the said Umashaker and after paying the said amount to the said Avinash and Umashanker he was not left with him any amount.
It is significant to note here that, the complainant in his cross - examination in page No.15 at 14 th line and in page 14 C.C.NO.30083/2017 No.16 at 1st line has further specifically deposed that, ¸ÁQëUÉ FUÀ ¢B 29.05.2012 gÀAzÀÄ ¤ÃªÀÅ ¤ªÀÄä ¨ÁåAPï SÁvɬÄAzÀ 9 ®PÀë gÀÆUÀ¼À£ÀÄß qÁæ ªÀÄÁr PÉÆAqÀÄ CzÀgÀ°è C«£Á±ï ºÁUÀÆ GªÀiÁ±ÀAPÀgï EªÀjUÉ ºÀtªÀ£ÀÄß PÉÆnÖzÀÝjAzÀ ¸ÀzÀj qÁæ ªÀiÁr PÉÆArgÀĪÀ ºÀtzÀ°è ¤ªÀÄUÉ AiÀiÁªÀÅzÉà ºÀt G½AiÀÄzÀ PÁgÀt ¤ÃªÀÅ ºÉýgÀĪÀAvÉ DgÉÆæUÉ 4 ®PÀëgÀÆUÀ¼ÀÄ PÉÆqÀ®Ä ¤ªÀÄä ºÀwÛgÀ ºÀt EgÀ°®èªÉAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë vÁªÀÅ DgÉÆæUÉ ¸ÀzÀj ºÀtªÀ£ÀÄß ¸ÀzÀj 9 ®PÀëgÀÆUÀ¼À°è PÉÆnÖgÀÄvÁÛgÉÆà CxÀªÁ vÀªÀÄä ºÀwÛgÀ EgÀĪÀ ºÀtzÀ°è 15 C.C.NO.30083/2017 PÉÆnÖgÀÄvÁÛgÉÆà JAzÀÄ ºÉüÀ®Ä zÀéAzÀé EgÀĪÀÅzÁV ºÉüÀÄvÁÛgÉ.
It is pertinent to note here that, from the said evidence of the complainant it clearly appears that he is not sure about his case. It is pertinent to note here that, for any person Rs.4,00,000/- is not a small amount. It is pertinent to note here that, if at all the complainant had actually advanced the said amount to the accused as alleged by him then he could have narrated the real facts before the Court. It is pertinent to note here that, from the said evidence of the complainant and from his conduct it clearly appears that on 29.05.2012 he had not at all advanced the said amount to the accused. It is pertinent to note here that, the said evidence of the complainant has strike out the every root of the present complaint lodged by him against the accused. It is significant to note here that, the complainant has failed to prove the existence of legally recoverable debt.
It is pertinent to note here that, the complainant has contended that he advanced a sum of Rs.4,00,000/- to the 16 C.C.NO.30083/2017 accused without obtaining any document and also not charged any interest. It is pertinent to note here that, the question arises that if the complainant had advanced a substantial amount to the accused why he had not obtained any document from him and why he had not charged any interest?. It is significant to note here that, the said conduct of the accused plays a vital role. It is pertinent to note here that, from entire evidence of the complainant it clearly appears that he has not approached the Court with clean hands. It is pertinent to note here that, the complainant has miserably failed to prove the existence of legally recoverable debt.
10. It is pertinent to note here that, the complainant has specifically contended that the accused to discharge his legally enforceable debt had issued in his favour a Cheque bearing No. 023133 dated:-25.03.2017 for a sum of Rs.4,00,000/- drawn on Indian Overseas Bank, Malleshwaram branch, Bengaluru - EX.P1.
11. It is pertinent to note here that, the accused in his examination - in - chief and in cross - examination of the 17 C.C.NO.30083/2017 complainant has taken a specific defenses that in the year 2015 the father of the complainant was running the chit business and in said chit business he invested a sum of Rs.1,00,000/- and in the month of June 2015 he bid the amount and at that time the father of the complainant had obtained from him his five blank signed cheques, his one blank signed paper and his two photos as a security and after clearance of the chit installments the father of the complainant had failed to return his aforesaid documents. That, the accused has further contended that he had not written the contents of the aforesaid cheques.
12. It is pertinent to note here that, the accused has placed his reliance on following decisions:-
1. Loonkaran Sethia etc -vs- Mr. Ivan E. Johan and others, reported in AIR 1977 Supreme Court 336 wherein it has held that if an alteration (by erasure, interlineation, or otherwise) is made in a material part of a deed, after its execution, by or with the consent of any party to or person entitked under it, but without consent of the party or parties liable 18 C.C.NO.30083/2017 under it, the deed is rendered void from the time of the alteration so as to prevent the person who has made or authorized the alteration, and those claiming under him, from putting the deed in suit to enforce against any party bound by it who did not consent to the alteration, any obligation, covenant, or promise thereby undertaken or made.
2. Jayantilal Goel -vs- Smt. Zubeda Khanum, reported in AIR 1986 Andhra Pradesh 120 wherein it has held that where a look at the pro - note itself made it apparent that the date which was in a different ink, that is other than the ink that had been used for body of instrument, was a subsequent introduction into the document, the subsequent insertion would amount to "material alteration''.
3. Ramachandran -vs- K. Dineshan and another, reported in CRI. L. J. 1237 wherein it has held that effect of making a material alteration on a negotiable instrument without the consent of the party bound 19 C.C.NO.30083/2017 under it is exactly the same as that cancelling the instrument.
13. It is significant to note here that, the burden lies upon the complainant to substantiate that the accused to discharge his legally enforceable debt had issued in his favour the EX.P1. It is pertinent to note here that, the complainant in his complaint and in his examination - in - chef has specifically contended that the accused at the time of availing a sum of Rs.4,00,000/- from him though, had agreed to repay the same within one year from the date of its availment but, failed to do so and on persistent demands made by him he issued in his favour the EX.P1. It is significant to note here that, the complainant in his complaint and in his examination - in - chief has not mentioned the date when the accused had issued in his favour the EX.P1, but, in his cross - examination in page No.6 at 14th line has deposed that the accused in the month of January 2017 had issued in his favour the EX.P1 by mentioning the date as 25.03.2017. It is pertinent to note here that, without any material particulars the contention of 20 C.C.NO.30083/2017 the complainant the accused had issued in his favour the EX.P1 cannot be believed and accepted.
It is significant to note here that, it is the contention of the complainant that the accused had issued in his favour the EX.P1 after five years from availing the alleged amount from him. It is significant to note here that, the complainant has not properly explained after the lapse of said period of one year why he had not insisted the accused for returning his said amount and also not offered any explanation why the accused had issued the EX.P1 after a long period of five years. It is pertinent to note here that, at this juncture the conduct of the complainant plays a vital role. It is pertinent to note here that, if at all the complainant had advanced a sum of Rs.4,00,000/- to the accused as alleged by him then he could have definitely demanded the accused for returning the said amount and also could have taken proper action against him in a appropriate forum. It is pertinent to note here that, in absence of any material particulars, material, cogent and reliable evidence the contention of the 21 C.C.NO.30083/2017 complainant that the accused had issued in his favour the EX.P1 cannot be believed and accepted.
It is pertinent to note here that, from perusal of EX.P1 it clearly appears that its contents were written in one ink and the ink that had been used for signing on it is in different ink. It is pertinent to note here that, the complainant in cross - examination though, has denied the said fact but, the document itself reveals the truth. It is significant to note here that a man may lie but the document do not. It is pertinent to note here that, if the contents of the cheque were found in one ink and the signature appearing thereon in another ink then it cannot be held that the accused had issued the cheque in question to discharge his legally enforceable debt. It is pertinent to note here that, from entire evidence of the complainant it clearly appears that the accused had not issued the cheque in question in his favour. It is pertinent to note here that, the evidence and conduct of the clearly strengthen the defenses put forth by the accused. It is pertinent to note here that, in view of My above all findings and without much discussion I hold that, 22 C.C.NO.30083/2017 the complainant has failed to prove that the accused to discharge his legally enforceable debt had issued in his favour the EX.P1. In view of the same, point No.1 is answered in the NEGATIVE.
14. Point No.2:- It is specific contention of the complainant that, he presented the EX.P1 for encashment in State Bank of Mysore, Jayanagar branch, Bengaluru and on 28.03.2017 the same was returned with the shara as 'Funds Insufficient''.
It is pertinent to note here that, the complainant to substantiate his contentions has got marked the Cheque return memo issued by the said Bank at EX.P2.
It is significant to note here that, as discussed on point No.1 the complainant has failed to prove that the accused to discharge his legally enforceable debt had issued in his favour the EX.P1 and if such being the case, the question of committing the offence by the accused under section 138 of the Negotiable Instruments Act, do not arise at all. It is pertinent to note here that, in view of My above all findings and without much discussion I hold that, the complainant 23 C.C.NO.30083/2017 has failed to prove that the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act. In view of the same, point No.2 is answered in the NEGATIVE.
15. Point No.3:- It is pertinent to note here that, the accused has specifically contended that he had not received the Legal notice issued by the complainant. It is pertinent to note here that, the accused has specifically contended that he is residing in address bearing No.114, 11 th cross, Karim Sab Layout, Srigandha Kavalu, Hegganahalli main road, Bengaluru and to probabalise the same he mainly relied upon EX.D5 - the Rental agreement dated:-13.07.2017.
16. It is pertinent to note here that, the accused has placed his reliance on following decisions:-
1. Jayachandran -vs- Baburaj, reported in 1998 CRI.
L. J. 3671 wherein it has held that Negotiable Instruments Act (26 of 1881), S.138 Proviso (c) - Dishonour of cheque - Non - receipt of notice by drawer of cheque - Failure on part of payee - complainant to establish that when postman went to 24 C.C.NO.30083/2017 residence of drawer he was physically present but refused to receive or he was not present by examining postman and neighbours at stage of trial - Prosecution commenced six years - Plea for giving a chance to payee to examine postman and other material witnesses to fortify postal endorsement made in returned cover at appellate stage - Not tenable as it would amount to giving a chance to fill up lacuna - Order of acquittal of drawer - Not interfered with.
2. K. Anjali Rao -vs- N. Krishna Raju Sekhar and anther, reported in 2004 CRI. L. J. 2911 wherein it has held that Negotiable Instruments Act (26 of 1881), S.138, S.139 (c) - Dishonour of cheque - Service of notice - Complainant claiming that notice sent was by registered post and also through Certificate of Posting - Notice sent by registered post was returned unserved with endorsement ''addressee left'' - No evidence to show that notice sent by Certificate of 25 C.C.NO.30083/2017 Posting was in fact served on accused - Accused is entitled to benefit of doubt.
3. M. D. Thomas -vs- P. S. Jaleel and anr., decided in Criminal Appeal No.711/2009 dated:-13.04.2009 wherein it has held that Clause (b) of the proviso to Section 138 cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by from the bank regarding the return of the cheque as unpaid.
17. It is pertinent to note here that, the complainant has specifically contended that on 27.04.2017 he issued the legal notice to the accused and the said notice was duly served upon him on 28.04.2017. It is pertinent to note here that, the complainant to substantiate his aforesaid contentions has got marked the Legal notice issued by him to the accused dated:-27.04.2017 at EX.P3 and Postal receipt at EX.P3(a).
26
C.C.NO.30083/2017
18. It is pertinent to note here that, the complainant in cross - examination of the accused has got marked one Photo as EX.P4 and through which tried to demonstrate that he resides in No.115 and 116 - the place belonging to the masjid and Srigandhada Kavalu and Srigandha Nagara are one and the same but, in his cross - examination in page No.11 at 10th line has specifically admitted that Srigandhada Kavalu and Srigandha Nagara are different places.
It is pertinent to note here that, the complainant has not produced before the Court any document to probabalise the alleged notice was duly served upon the accused. It is significant to note here that, the complainant in his cross - examination in page No.11 at 16th line has specifically deposed that, ¸ÁQëUÉ FUÀ ¸ÀzÀj w¼ÀĪÀ½PÉ ¥ÀvÀæ DgÉÆæAiÀÄ ªÉÄÃ¯É eÁjAiÀiÁVgÀÄvÀÛzÉ JAzÀÄ vÉÆÃj¸À®Ä ªÀiÁ£Àå 27 C.C.NO.30083/2017 JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQë CzÀgÀ §UÉÎ vÀªÀÄUÉ £É£À¦gÀĪÀÅ¢®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ.
It is pertinent to note here that, the complainant in his cross - examination in page No.12 at 15 th line has further deposed that, ¸ÁQëUÉ FUÀ ¤ªÀÄä ¥Àæ¸ÀÄÛvÀ ¥ÀæPÀgÀtzÀ ²gÉÆãÁªÉÄAiÀÄ°è ºÁUÀÆ ¸ÀzÀj w¼ÀĪÀ½PÉ ¥ÀvÀæzÀ°è £ÀªÀÄÆzÀÄ ªÀiÁrgÀĪÀ DgÉÆæAiÀÄ «¼Á¸À ºÁUÀÆ F ªÉÄÃ¯É ºÉýgÀĪÀ £ÀA.114 ºÉUÀΣÀºÀ½î PÁæ¸ï F «¼Á¸ÀUÀ¼ÀÄ ¨ÉÃgÉ ¨ÉÃgÉAiÀiÁVgÀĪÀÅzÀjAzÀ DgÉÆæUÉ PÀ¼ÀÄ»¹gÀĪÀ w¼ÀĪÀ½PÉ ¥ÀvÀæªÀÅ DªÀgÀ ªÉÄÃ¯É eÁjAiÀiÁVgÀĪÀÅ ¢®èªÉAzÀÄ ºÉýzÀÝPÉÌ ¸ÁQë CzÀÄ 28 C.C.NO.30083/2017 vÀªÀÄUÉ UÉÆwÛgÀĪÀÅ¢®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ.
It is pertinent to note here that, the said evidence of the complainant itself reveals that how diligent he is in prosecuting the matter. It is pertinent to note here that, the word Gottilla would amount to an admission of a particular fact. It is pertinent to note here that, from the conduct of the complainant and from his said admission it clearly appears that he had not issued the Legal notice to the correct address of the accused. It is further pertinent to note here that, the complainant has also not examined the postman to substantiate that the alleged notice was duly served upon the accused. It is pertinent to note here that, as stated above in absence of any material, cogent and reliable evidence the contentions of the complainant cannot be believed and accepted. It is pertinent to note here that, in view of My above all findings and without much discussion I hold that, the complainant has not complied with the provisions of section 138(b) of the Negotiable Instruments 29 C.C.NO.30083/2017 Act. In view of the same, point No.3 is answered in the NEGATIVE.
18. Point No.4:- That, as discussed on points No.1 to 3, I proceed to pass the following:-
ORDER That, acting under section 255(1) of Code of Criminal Procedure, the accused is acquitted for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the accused shall comply with the provisions of section 437(A) of Code of Criminal Procedure. (Typed and corrected by me and pronounced in open Court on this the 24 th day of December 2018) (Hema Pastapur) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
[[[[ [[ [ [ [ [ ANNEXURE
List of witnesses examined on behalf of the complainant [ PW1 : A. Nisar Ahmed s/o Abubakkar.
List of documents marked on behalf of the complainant EX.P1 : Original Cheque;
30
C.C.NO.30083/2017
EX.P1(a) : Signature of the accused;
EX.P2 : Cheque return memo;
EX.P3 : Legal notice dated:-27.04.2017;
[ EX.P3(a) : Postal receipt;
EX.P4 : Account statement of the complainant;
EX.P5 : Certified copy of Agreement of sale and
EX.P6 : Photo.
List of witnesses examined on behalf of the accused DW1 : Kaleemulla s/o Allah Bakash.
List of documents marked on behalf of the accused EX.D1 : Certified copy of Order sheet in C. C. No.867/2016 and annexed documents;
EX.D2 : Certified copy of Order sheet
in C. C. No.13434/2016 and annexed
documents;
EX.D3 : Certified copy of Order sheet
in C. C. No.3293/2018 and annexed
documents;
EX.D4 : Certified copy of Order sheet
in C. C. No.22814/2017 and annexed
documents and
EX.D5 : Rental agreement dated:-13.07.2017.
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
31