Bangalore District Court
Mr. Ramesh S.R vs Mr. B.N. Madan on 16 November, 2019
IN THE COURT OF XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM-34)
PRESENT: Sri KAMALAKSHA D, B.A., LLB.
XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 16th day of November, 2019.
C.C.No.53772/2017
COMPLAINANT : Mr. Ramesh S.R.
No.169, 3rd Cross,
4th Main, Hanumanthnagar,
Near Ganesh Bhavan Hotel,
Bengaluru - 560 019.
Rep. by S.P.A. Holder,
Mr. Madhusudhan L.
(By Sri B.C. Venkatesh - Advocate)
V/s
ACCUSED : Mr. B.N. Madan,
S/o. B. Narappana,
Mr. Venkateshwara Complex,
No.11,12 JC Industrial Area,
Near Siddi Vinayaka Temple,
ISRO Layout Main Road,
Kanakapura Main Road,
Bengaluru - 560 062.
(By Sri Dhananjaya, Advocate)
1 Date of Commencement 28.12.2016
of offence
2 Date of report of offence 09.03.2017
3 Presence of accused
3a. Before the Court 20.11.2017
3b. Released on bail 20.11.2017
4 Name of the Complainant Mr. Ramesh S.R.
5 Date of recording of 09.03.2017
evidence
6 Date of closure of evidence 17.09.2019
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused is not found guilty.
2 C.C.No.53772/2017
JUDGEMENT
The Private Complaint is filed under Section 200 of Cr.P.C against the accused alleging that he has committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that the accused approached him for financial assistance for his business requirements in the month of July 2015 and borrowed an amount of Rs.15,00,000/- on 15.7.2015 through RTGS and Accused had executed necessary documents for having obtained the loan. The Accused had agreed to pay the return the same within 10 months. The Accused is due a sum of Rs.13,35,444/- and went on postponing repayment of the loan amount on one or other pretext and finally issued a Cheque bearing No.000113 dtd.28.12.2016 for Rs.13,35,444/- drawn on Bank of Baroda, ISRO Layout, Bengaluru towards discharge of said legal liability and agreed to pay the interest after the Cheque is honoured.
3. It is further submitted in the compliant that the said Cheque was presented by the Complainant through his banker Citi Bank, M.G. Road branch, Bengaluru on 30.12.2016. But 3 C.C.No.53772/2017 the said bank issued an endorsement for "funds insufficient"
on 31.12.2016. After dishonour of the Cheque, the Complainant informed regarding dishonour of Cheque to the Accused. But the accused did not respond to the request of the Complainant. After that the Complainant got issued Demand Notice through RPAD on 23.1.2017, calling upon the accused to pay the Cheque amount. The said notice was duly served on 28.1.2017. After receipt of the same the Accused has not paid the Cheque amount, but he has sent a reply. Therefore, the contention of the Complainant that the accused deliberately issued the Cheque in favour of the Complainant knowingly the fact of insufficient funds in his account. Therefore, the Complainant prays to convict and grant compensation.
4. The cognizance for offence was taken of my learned predecessor. The criminal case came to be registered against the accused. The summons was issued to the accused. The accused in obedience of the summons appeared before the Court and enlarged on bail.
5. The substance of the accusation was framed, read over and explained to the accused in the language known to him by the learned predecessor of this Court. The accused pleaded not guilty and claimed to try the case. Hence, the case was posted for complainant's evidence.
4 C.C.No.53772/2017
6. The S.P.A. Holder of the Complainant got examined himself as PW-1 and got marked 8 documents as Ex.P.1 to Ex.P.8.
7. The statement as required under Section 313 of Cr.P.C. was recorded. The accused denied all the incriminating evidence appeared against him. But he did not tender his evidence.
8. I heard the Arguments of both side.
9. Now the following points that arise for the consideration of this Court are :
1. "Whether the Complainant proves the cheque issued by the accused person dishonoured with an endorsement as "funds insufficient" and inspite of service of legal notice and demand the accused person failed to pay the cheque amount within stipulated period as such he has committed an offence punishable under Section 138 of Negotiable Instruments Act?"
2. What order ?
10. My answer to the above points are as follows :
POINT No.1 : In the Negative POINT No.2 : As per final order for the following;
REASONS
11. POINT No.1 - The PW1 is the Power of Attorney Holder of Complainant. P.W.1 is Chartered Accountant in the 5 C.C.No.53772/2017 office of complainant for last 7 years. The suggestion of the Accused is that the PW1 being the employee of Complainant he would perform his duty in the office of the Complainant as per his instruction. For that, PW1 says as true. The further suggestion of the Accused is that still the Complainant is facing financial crisis and health issues. However, the PW1 further says that the Complainant used to travel many places for business purpose. Therefore, due to heavy work load he could not come before court to attend the case.
12. The PW1 has deposed contradiction statement because he says that nothing is prevented the Complainant to come before court. The suggestion of the Accused is that the Ex.P.1 G.P.A. does not contain registration number of advocate who attested the said document. The PW1 is Accountant of the Complainant. He says that he knows only the present transaction between Accused and Complainant. The P.W.1 says that one Aditya is the friend of Complainant and he is doing job in Besto Ice Cream Pvt. Ltd. The PW1 knows the Shreya Investment Advisor, however he does not know the status of partnership of the Complainant. Also he does not know the proprietor of Shreya Investment Advisors. The same 6 C.C.No.53772/2017 company had filed another case against same Accused in 42nd A.C.M.M. The PW1 admits that the said case was dismissed.
13. The PW1 further says that the Accused had taken amount of Rs.32,00,000/- from Besto Ice Cream Pvt. Ltd. through Aditya. The suggestion of the Accused is that out of which, the Accused repaid amount of Rs.32,25,000/-. But PW1 says that the said fact is not known to him. The suggestion of the Accused is that Aditya took Cheques from Accused at the time of transaction of said loan for security purpose. The same Cheque has been presented in this case, but the PW1 denies it. The further suggestion of the Accused is that he borrowed amount of Rs.15,00,000/- from Complainant out of which, the Accused repaid amount of Rs.6,00,000/- and Accused dues to pay remaining amount of Rs.9,00,000/-. But PW1 denies the said suggestion. However, the PW1 admits that amount of Rs.1,50,000/- was credited through Cheque bearing No.000148 on 17.7.2015. But he denies that the said amount was paid as payment of principle amount. But PW1 denies it. Therefore, the suggestion of the Accused is that on various dates, the Accused paid amount of Rs.1,50,000/-, Rs.75,000/-, Rs.1,50,000/- four times, Rs.75,000/- etc., however, the PW1 denies the fact of payment of Rs.75,000/-. But he admits that the amount of 7 C.C.No.53772/2017 Rs.1,50,000/- was paid on 29.9.2015 and 21.12.2015 through cheques bearing Nos.000187 and 000188. The transaction with the Complainant is admitted fact. However, the evidence of the Accused is that at the time of payment of amount, the Accused issued Cheques for security purpose. The same Cheques were misused by Complainant and Aditya in another case.
14. As documentary evidence, the Accused produced as many as 8 documents. Ex.P.1 is the Power of Attorney. The Accused challenged the very existence of disputed Power of Attorney stating that the registration number of the advocate who attested the Power of Attorney is not found in the disputed document. But the round seal contained in the Ex.P.1 gives the registration number. Ex.P.2 is the Cheque for sum of Rs.13,35,444/- drawn on Bank of Baroda issued in the name of Ramesh (Complainant). The Ex.P.3 is the endorsement. Ex.P.4 is the Demand Notice. Ex.P.5 and Ex.P.6 are the Postal Receipt and Postal Acknowledgment. Ex.P.7 and Ex.P.8 are reply notices.
15. Inspite of sufficient opportunity given to the Accused, he did not utilize it. Therefore, the matter was posted for judgment on 6.6.2019. Thereafter the Accused filed application u/Sec.311 of Cr.P.C. That application was allowed with costs. 8 C.C.No.53772/2017 However, the Accused again failed to capitalize the opportunity. Again the Accused had filed application u/Sec.311 of Cr.P.C. The said application was allowed. However the Accused again failed to put cross questions and tender his side evidence. Therefore, even after continuous opportunities were given to the Accused, he did not utilize it. The suggestion of the Accused is that at the time of taking loan from one Aditya the Accused issued Cheques for security purpose and two cases including this one, are filed by misusing the Cheques. The Accused suggested in the cross-examination that he paid amounts to Complainant in many occasions, through Cheques. The details of payment of such amount, have been explained in the reply notice.
16. The pleading of the Complainant especially in the 3rd paragraph explains that the amount of Rs.15,00,000/- was paid through R.T.G.S. on 15.7.2015 and Accused had executed necessary documents. However, the Complainant has not produced very prime document of bank statement to prove the payment of amount of Rs.15,00,000/- through RTGS. If the Complainant really paid amount of Rs.15,00,000/-, he could have produced bank statement to prove the payment of amount through RTGS. Therefore, the very payment of amount of 9 C.C.No.53772/2017 Rs.15,00,000/- is not proved. The PW1 has deposed contraction statement of evidence in his evidence stating that the Accused had taken amount from one Aditya of Besto Ice Cream Pvt. Ltd. In some portion of the cross-examination the PW1 admits the payment of some amounts. In the cross- examination the PW1 categorically admits that the handwriting of Ex.P.2 Cheque is not in the handwriting of the Accused. The PW1 also categorically admits that he himself wrote the contents of disputed Cheque which was blank at the time of issuance. Therefore, these are all the contradictions dilute the case.
17. The main burden is on the Complainant to prove the fact of mobilization of the amount. The say of the Complainant is that the amount of Rs.15,00,000/- was transferred through RTGS. But, as stated above, the Complainant has not demonstrated single piece of document for having transfer of such huge amount. The admission of Complainant regarding contents of handwriting definitely proves that the Accused is not the author of Cheque. Therefore, all said above facts are remained as unproved facts at the attempt of the Complainant. Hence, it may be said that the Complainant has failed to discharge his initial burden. Hence, this court has come to the conclusion that so called transaction of Complainant with the 10 C.C.No.53772/2017 Accused is not proved at the attempt of the Complainant. Consequently, the Point No.1 is answered in the Negative.
18. POINT No.2 : In view of discussion held in Point No.1, I proceed to pass the following :
ORDER Acting under Section 255 (1) of Cr.P.C., the accused is acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bonds executed by the accused shall continue till expiry of the appeal period. Thereafter, it shall be extinguished automatically. (Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 16th day of November, 2019) (KAMALAKSHA D), XXXIV ACMM, BENGALURU ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. Madhusudhan L.
2. Documents marked on behalf of complainant:
Ex.P.1 Special Power of Attorney Ex.P.2 Cheque Ex.P.3 Bank endorsement Ex.P.4 Office copy of Legal Notice Ex.P.5 Postal receipt Ex.P.6 Postal acknowledgment Ex.P.7 Reply Notice Ex.P.8 Notice
3. Witnesses examined on behalf of Accused : NIL
4. Documents marked on behalf of Accused : NIL (KAMALAKSHA D), XXXIV ACMM, BENGALURU.