Bangalore District Court
Sri Hanumaiah vs Sri R.Nithyananda on 18 April, 2016
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 18th day of April , 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.21475/2015
Complainant : Sri Hanumaiah, L.D.,
Son of Sri Dodda Hanumaiah,
Aged about 45 years,
R/at No.171. 1st Main, 7th Cross,
Kenchena Halli, Rajarajeswari Nagar,
Bangalore - 560 098.
(By Sri.Manjunatha Reddy .Adv.)
V/s.
Accused : Sri R.Nithyananda,
C/o Narayanamurthy,
Major in age,
Attender,
R/at Bangalore University Campus(press)
Rajarajeswari nagar,
Bangalore - 560 098.
(By Sri K.H.Prabhu,.Adv.)
Date of Institution 21-07-2015.
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
Final Order Accused is Acquitted
2 C.C.No.21475/2015
Date of Order : 18.04.2016.
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 accused is a known person of the complainant and
approached him in the month of Jan.2015 and requested the
complainant to lend a hand loan of Rs.7,00,000/- to discharge his
incurred debts. Having faith and confidence on the accused, the
complainant has given the said amount of Rs.7,00,000/- by way
of cash in the month of Jan.2015. On receipt of the said amount,
the accused promised to repay the said amount within two
months. The complainant approached the accused several times
to repay the amount of Rs.7,00,000/-. On repeated requests made
by the complainant, the accused has issued two cheques in
favour of the complainant vide cheque No.886891 and No.886893
dated 30-03-2015 for a sum of Rs.3,50,000/- each drawn on
State Bank of Mysore, Nagarabhavi branch Bangalore. The
complainant presented the said cheques on 5-6-2015 for
3 C.C.No.21475/2015
encashment through his bankers State Bank of India, Raja
Rajeswari Nagar branch. Bangalore . But the said cheques were
dishonoured due to "Funds insufficient" vide endorsement dated
8-6-2015. The complainant immediately contacted the accused
and intimated the accused regarding the bouncing of the cheques.
But the accused did not bothered to maintain sufficient amount
in his bank account. Having no other alternative , the
complainant got issued legal notice on 16-06-2015 to the
accused, calling upon the accused to pay the cheque amount. The
accused has not received the notice intentionally and 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., 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
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.P8 and at the time of cross-
examination of DW-1 got marked Ex.P9 and Ex.P10 and this
4 C.C.No.21475/2015
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 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 he prays for convicting the
accused in accordance with law.
. 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 following decisions reported in
ILR 2008 Karnataka 4629
2015 AIR SCW 64
2011(1) KCCR 118
2005(3) KCCR 1576
5 C.C.No.21475/2015
Hence, he prays for acquittal of the accused in accordance with
law.
6. 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 & 2 cheques alleged to be issued by the accused
and identified the signature of the accused as per Ex.P1(a) & 2(a).
This issuance of cheques in favour of complainant for discharge of
legal liability has been disputed by the accused. Further got
marked Ex.P3 and Ex.P4 are endorsements issued by the bankers
stating that Ex.P1 & 2 cheques were dishonoured due to ""Funds
insufficient". Ex.P5 is the copy of legal notice . This notice does
not contain the signature of the complainant except his counsel .
Ex.P6 is the postal receipt for having sent legal notice to the
accused . Ex.P7 is the postal cover returned with the postal shara
" door locked and hence legal notice returned. Ex.P7(a) is notice in
it. At the time of cross-examination of DW-1, in order to show the
amount comes to the complainant got marked Ex.P8 is the ªÀÄ£É
¨ÉÆÃUÀåzÀ PÀgÁgÀÄ ¥ÀvÀæ dated 29-1-2014 in which, one Hanumakka mortgaged the
schedule house to one Shashikala amounting to Rs.4,50,000/- . Ex.P9 is the
acknowledgement issued by the Rajarajeshwari nagar police station for having
6 C.C.No.21475/2015
receipt of complaint lodged by this accused. Ex.P10 is the reply statement of the
accused about the complaint lodged against the accused by one Nirmala in
which, she has stated that she obtained loan amount from various persons by
mentioning their names and the amount has undertaken to repay the said amount
if failed to do so, they can take action against this accused etc.. . The contents of
Ex.P10 has been disputed by the accused but he admitted that signature found on
Ex.P10 is belongs to him and his wife Divya. On the basis of the oral and
documentary evidence of complainant, prima facie proves the alleged guilt of the
accused.
7. 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 admitted that, he knows the complainant but at the time
of vacating the house at Kenchenahalli , this complainant used to
come to his house and packing house material belongs to the
accused. At that time, this accused kept signed blank cheques in
his almirah and hence, this accused has not obtained any loan
amount from the complainant and for discharge of the said
amount, he has not issued any cheque in favour of the
complainant etc.. But he admitted that the signature found on
Ex.P1 and Ex.P2 cheques belongs to him . Further in order to
show he was working at Printing Press got marked Ex.D1
I.D.Card.
7 C.C.No.21475/2015
8. The complainant counsel cross-examined the DW-1 . In
the cross-examination, he tried to elicited that for repayment of
the legally recoverable debt, accused issued cheques in question,
the same are dishonoured due to "Funds insufficient". Further
accused stated that for dishonestly taken the Ex.P1 and Ex.P2
cheques , this accused has not taken any legal action against the
complainant but he admitted that on 24-12-2014 one Nirmala
lodged complaint against this accused before Raja Rajeswari
nagar police station . For that, the accused and his wife given
their reply as per Ex.P10 . But the contents of the Ex.P10 has
been disputed by the accused. But the signature found on
Ex.P10 is belongs to the accused and his wife. Further stated that
the accused and his wife knowing about one cannot put their
signature on blank paper and he denied that he obtained loan of
Rs.7,00,000/- from the complainant for discharge of the said
amount, he issued Ex.P1 and Ex.P2 cheques and the contents of
the cheques have been written by the complainant's son Raju etc..
Except the total denial of contention of complainant, the accused
had failed to given rebuttal evidence to the case of complainant to
show that the accused had not obtained any loan amount from
the complainant and others as per Ex.P10 reply given by the
accused and his wife before the police etc..
8 C.C.No.21475/2015
9. As per the chief examination of DW-1, the accused
counsel cross-examined the PW-1. In the cross-examination , he
tried to elicited that in order to show the complainant has
sufficient amount with him , he has not produced any
documentary evidence but at the time of cross-examination of
DW-1, the complainant counsel produced Ex.P8 is ªÀÄ£É ¨ÉÆÃUÀåzÀ PÀgÁgÀÄ
¥ÀvÀæ to show that the amount comes to the complainant etc.. Except the total
denial of contention of complainant, the accused failed to given corroborative
evidence to support their defence. Though the complainant has not stated
specific date on which, he lend the amount of Rs.Seven lakhs to the accused but
he has stated in the month of Jan.2015 the accused obtained loan of Rs.Seven
lakhs by way of cash for that, Ex.P8 ªÀÄ£É ¨ÉÆÃUÀåzÀ PÀgÁgÀÄ ¥ÀvÀæ which was stands in
the name of one Hanumakka . Whether the said Hanumakka is the wife of
complainant is not stated in Ex.P8. Hence, the case of complainant create
doubtful whether he really lend amount to the accused.
10. 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 the offence punishable u/s. 138 of NI Act and punish the accused
in accordance with law.
9 C.C.No.21475/2015
11. In support of the case of accused, the learned counsel for the accused
submitted written arguments by narrating the facts and circumstances of the case
and stated that the complainant has not specifically mentioned the date on which,
he advanced loan of Rs.Seven lakhs to the accused. The accused had given
rebuttal evidence to the case of complainant by examining himself and also legal
notice issued to the accused is not duly served and hence, this accused has not
given an opportunity to reply to the notice. In support of his contention, he
relied on the decision reported in ::
ILR 2008 Karnataka 4629 (Shiva Murthy Vs.Amruthraj).
In which Hon'ble High Court of Karnataka held that "
U/s. 139 of NI Act , the court ought to have considered
as to whether the complainant has proved the existence
of legally enforceable debt.."
2015 AIR SCW 64 (K.Subramani Vs.K.Damodar Naidu)
In which Hon'ble Supreme Court of India held that the
complainant had no source of income to lend sum of
Rs.14 lakhs to accused--he failed to prove there is
legally recoverable debt payable by accused to him...."
2011(1) KCCR 118 (Bharathy Vs. Benigopal Jhawar). In
which Karnataka High Court held that making a
demand for payment of amount involved in the cheque
by way of legal notice and thus there was non
compliance of the provision of Section 138 of the Act.
etc..
2005(3) KCCR 1576 (Deviprasad Rai Vs. A.M.Ganesh
Rai) In which Hon'ble High Court of Karnataka held that
complainant must establish that the accused has
issued notice by putting his signature on the postal
acknowledgement.
10 C.C.No.21475/2015
12. On the basis of the aforesaid decisions, the learned
counsel for the accused submits that the complainant has not
fulfilled all the ingredients of the offence punishable u/s. 138 of
NI Act. Hence, accused is entitled for acquittal.
13. On the basis of the aforesaid facts and circumstances of
the case in order to show the complainant lend huge amount of
Rs.Seven lakhs to the accused , he has not stated on which date
the complainant had lend huge amount of Rs.Seven lakhs to the
accused . The accused taken a contention that for dishonour of
the cheque , the legal notice not duly served to the accused. As
per Ex.P7 RPAD postal cover is returned with the postal shara "
Door locked and on the same cover, it is mentioned " Not in
address" etc.. Hence, for service of legal notice the complainant
has not examined the concerned postal authority to prove that the
legal notice sent to the accused duly served. Under these
circumstances, the case of complainant create doubtful whether
he really he lend Rs.Seven lakhs to the accused. The accused had
given rebuttal evidence to the case of complainant and the
aforesaid decisions relied by the accused counsel are squarely
applicable to the case of accused to show that the accused had
given rebuttal evidence to the case of complainant. Under these
11 C.C.No.21475/2015
circumstances, the accused in entitled to acquittal. Accordingly, I
pass the following :
ORDER
Acting u/s 265 of Cr.P.C., the accused is acquitted from the alleged offence punishable u/s 138 of N.I.Act.
Accused is set at liberty. His bail bond and surety bond shall stand cancelled.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 18th day of April, 2016) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
ANNEXURE Witnesses examined for the Complainant:
PW.1 : Hanumaiah L.D. Witness examined for the accused:
DW-1 : R.Nithyananda List of Documents marked for the Complainant:
Ex.P1 & 2 : Cheques
Ex.P1a & 2a : Signature of the accused
Ex.P3 & 4 : Endorsements
12 C.C.No.21475/2015
Ex.P5 : Legal notice
Ex.P6 : Postal receipt
Ex.P7 : Returned Postal cover
Ex.P7a : Postal shara.
Ex.P8 House lease agreement.,
Ex.P9 Acknowledgement by police
Ex.P10 Reply to the Complaint to police
Inspector.
List of Documents marked for the accused:
Ex.D1 : I.D.Card
XXII ACMM, Bangalore.