Bangalore District Court
Narasimhamurthy vs Sri.P.Mohana Sundaram on 9 January, 2015
IN THE COURT OF THE XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 9th day of January 2015
PRESENT: M.RAMESHA B.A., LL.B.,
XX ADDL. C.M.M. Bangalore.
C.C.No.5966/2013
Complainant Narasimhamurthy,
S/o.Krishnappa,
R/at No.40,
4th Cross, Sanjeevininagar,
Hegganahalli,
Viswaneedam Post,
Bangalore -91.
(Represented by Sri.L.Siddesha Ummathur- Advocate)
Vs.
Accused Sri.P.Mohana Sundaram,
Proprietor,
Precision Engineering Enterprises,
No.8, 14th "C" Cross, Next to Bhargava Packings,
Sunkadakatte, Magadi Main Road,
Bangalore - 560 091.
(Represented by Sri.K.P.Shanmukha -Advocate)
Offence complied of U/S. 138 of N.I. Act.,
Plea of accused Pleaded not guilty
Final Order Accused is acquitted
Date of Order 09-01-2015
2 C.C.5966/2013
JUDGMENT
The complainant has filed this complaint U/S. 200 of Cr.P.C., against the accused for the offence punishable U/S.138 of Negotiable Instruments Act ( in short for "N.I. Act").
2. After taking the cognizance of the offence, on being served the summons, the accused was appeared before the court through his counsel and got released him on bail. The substance of accusation was read over and explained to the accused, wherein he pleads not guilty and claimed to be tried.
3. In order to prove his case, the complainant himself examined as PW.1 and got marked the documents as per Ex.P.1 to 6. Thereafter, accused has been examined as required U/S 313 of Cr.P.C., by explaining incriminating evidence appeared against him. Wherein, he denied the entire evidence of complainant. In order to substantiate his defence accused himself examined as D.W.1 and got marked document as per Ex.D.1.
4. The Learned Counsels for the complainant and the accused have filed their written argument.
5. Now the points that arise for my consideration are as follows; 3 C.C.5966/2013
POINTS
1. Whether the complainant has made out all the ingredients of Sec.138 of N.I. Act. to prove the guilt of the accused?
2. What Order?
Now my answer to the above points is as follows;
1. Point No.1: In the negative
2. Point No.2: As per the final order for the following;
REASONS
6. POINT No.1: I have perused the complaint, oral and documentary evidence available on record. It is the specific case of the complainant that, the accused is his close friend and earlier there is a several financial transactions between them. That on 03.01.2012 the accused once again approached the complainant for a financial assistance of Rs. 8,00,000/- in order to meet his urgent necessities. Accordingly the complainant was lend the amount of Rs. 8,00,000/- to the accused in 6 installments i.e.,. Rs. 93,500/- through cheque bearing No.242773 dated 06.01.2012, Rs. 38,000/- through cheque bearing No.100126 dated 11.01.2012, Rs. 2,96,000/- through cheque bearing No.242767, Rs. 27,100/- through cheque bearing No.242771 dated 01.02.2012, Rs. 70,000/- through cheque bearing No.242776 dated 05.03.2012 and Rs. 2,75,400/- paid in cash on 04.04.2012, during the period from 06.01.2012 to 04.04.2012 totally he has paid Rs. 8,00,000/- to the 4 C.C.5966/2013 accused . In order to repay the said amount that on 04.04.2012 the accused had issued 3 post dated cheques i.e., cheque bearing No.222152 dated 03.09.2012 for Rs. 3,15,000/-, cheque bearing No.222156 dated 27.09.2012 for Rs. 40,000/-, both the cheques were drawn on Indian Over Seas Bank Mahalkshmipuram Branch, Bangalore and another cheque bearing No.461880 dated 05.12.2012 drawn on Rajajinagar Co-Op. Bank Ltd., Bangalore. When the complainant has presented the first two cheques i.e., for Rs. 3,15,000/- and for Rs. 40,000/- for realisation through his banker, the said cheques were dishonoured for the reason "EXCEEDS ARRANGEMENT" and returned with bank memo. Thereafter legal notice issued to the accused calling upon him to pay the cheque amount within 15 days from the date of receipt of notice. After service of the said notice the accused had approached the complainant and took back the remaining cheque bearing No.461880 dated 05.12.2012 and issued a fresh cheque bearing No.193210 dated 05.01.2013 for Rs. 4,45,000/- drawn on Indian Over seas Bank, Sunkadakatte Branch, Bangalore. But regarding the cheque in question i.e., cheque bearing No.461880 dated 05.12.2012 and another cheque bearing No.222156 for Rs. 40,000/, he failed to pay the cheques amount within 15 days from the date of service of demand notice. Hence the complainant has filed separate complaint in C.C.3936/2013 in respect of those cheques. Further when the complainant presented the cheque in question for 5 C.C.5966/2013 Rs. 4,45,000/- it was dishonoured for the reason "Exceeds Arrangements". Thereafter, complainant has issued the demand notice dated 16.01.2013 and the said notice was served on the accused. Inspite of service of notice neither replied the notice nor paid the cheque amount. Hence the present case.
7. In support of his case the complainant has filed his affidavit of chief examination by reiterating the complaint averments. Further the complainant has produced the documents which are marked at Ex.P. 1 to Ex.P. 7. Ex.P. 1 is the cheque in question said to have been issued by the accused, Ex.P. 2 is the bank endorsement, which reveals that the Ex.P. 1 cheque was dishonoured for the reason "EXCEEDS ARRANGEMENT", Ex.P. 3 is office copy of the legal notice, Ex.P. 4 is the postal receipt for having sent the notice through RPAD, Ex.P. 5 is the postal acknowledgement. All these documents goes to show that after dishonour of the cheques the complainant had issued statutory notice within time and after completion of 15 days from the date of service of notice complaint came to be filed within time.
8. On the other hand the accused has specifically admitted the loan transaction with the complainant and also admitted the issuance of cheques to the complainant, but it is the specific defence that he has borrowed only Rs. 2,28,600/- from the complainant in 4 installments 6 C.C.5966/2013 i.e., Rs. 93,500/- on 06.02.2012 through the cheque and Rs. 38,000/- on 11.01.2012 through the cheque and Rs. 27,100/- on 01.02.2012 through the cheque and Rs. 70,000/- on 05.03.2012 through the cheque. So totally he had borrowed only Rs. 2,28,600/- from the complainant. At the time of borrowing the loan he was issued five signed blank cheques to the complainant as a security, Ex.P. 1 cheque also among the said 5 cheques. Thereafter, in the month of July 2012 he was repaid Rs. 3,98,500/- with interest to the complainant through the cheque dated 19.07.2012 and the said cheque was realized by the complainant. Thereafter inspite of repeated request to return the blank cheques issued for security, but the complainant has not returned the said cheques and misutilized the same. Further he is contended that he was repaid the entire amount to the complainant through the cheque and no dues owe to the complainant. Further it is contended that he was not received the amount of Rs. 2,96,000/- on 18.01.2012 through the cheque 242762 and Rs. 2,75,000/- by way of cash on 04.04.2012.
9. It is pertinent to note that the accused has admitted the loan transaction with the complainant and also admitted the issuance of cheques in question to the complainant, but he is contended that he was borrowed only Rs. 2,28,600/- and the entire amount was repaid with interest through the cheque. When the accused has raised such a specific defence, it is the duty of the complainant to discharge the 7 C.C.5966/2013 initial burden lies upon him that the cheques in question were issued towards discharge of existing of legally enforceable debt, without discharging the initial burden the complainant has not entitle for benefit of statutory presumption in his favour as contemplated U/S. 139 of N.I. Act.
10. Now let me see the evidence adduced by the respective parties. I have thoroughly gone through the oral and documentary evidence available on record. According to the complainant he has lent sum of Rs. 8,00,000/- to the accused during the period from 03.01.2012 to 04.04.2012, he has lent Rs. 8,00,000/- in 6 installments, except Rs. 2,75,400/- paid in cash, remaining amount was paid through the cheques. But the accused has clearly denied the payment of Rs. 2,96,000/- said to have been paid through the cheque 242767. But on perusal of the documents i.e.,. Ex.P. 7 bank statement, it reveals that the cheque bearing No.242767 for Rs. 2,96,000/- was paid to the accused and encashed by him on 19.12.2011 i.e., earlier to the present transaction. According to the complainant he was lent amount of Rs. 8,00,000/- to the accused during the period from 06.01.2012 to 04.04.2012. So it reveals that the amount of Rs. 2,96,000/- has not paid to the accused on 18.01.2012 as claimed by the complainant, actually the said amount was paid to the accused earlier to the transaction.
8 C.C.5966/2013
11. Further the complainant claims that he was paid Rs. 2,75,400/- by way of cash to the accused on 04.04.2012. In this regard it is to be taken note of that earlier to the payment of Rs. 2,75,400/- the complainant had paid even the meager amount of Rs. 27,100/-, Rs.38,000/-, Rs.93,500/- and 70,000/- through the cheques. All the time he use to pay through cheques, why he was paid substantial amount Rs. 2,75,400/- by way of cash is not explained by him, but the accused has specifically denied the payment of Rs. 2,75,400/- on 04.04.2012 by the complainant. Inspite of it the complainant has not placed any documents regarding generation of Rs. 2,75,400/- on 04.04.2012 said to have been paid to the accused. I have perused the bank statement produced by the complainant. It reveals that the complainant was not sufficient amount in his account during March 2012. When such being the case how it is possible for him to pay substantial amount of Rs. 2,75,400/- in cash to the accused. Further it is to be taken note of that earliest the complainant use to pay even small amount through cheques, when that is so why he has paid substantial amount of Rs. 2,75,400/- in cash is not explained by him. Moreover he has not proved the mobilization of Rs. 2,75,400/- on 04.04.2012, which is draw back to the case of complainant.
12. Further it is to be taken note of that even though the complainant has paid Rs. 2,96,000/- to the accused through cheque bearing No.242767 on 19.12.2011, but the complainant has falsely 9 C.C.5966/2013 stated that he was paid the said amount on 18.01.2012, but his own document i.e.,. Ex.P.7 bank account statement itself is falsify his claim and it clearly goes to show that he was not paid amount of Rs. 2,96,000/- on 18.01.2012. In the present case the complainant has contended that the accused was issued post dated cheques in relation to the loan of Rs. 8,00,000/- borrowed during the period from 06.01.2012 to 04.04.2012. When such being the case it is very clear that the cheque in question is not issued in relation to the amount of Rs. 2,96,000/- lend through cheque bearing No.242767 on 19.12.2011.
13. On the other hand the accused has clearly contended that he was borrowed only Rs. 2,28,600/- in four installments, all the amount were received through cheque. Subsequently in the month of July 2012 when the complainant demanded for repayment of the said amount he (accused) was repaid Rs. 3,98,500/- with upto date interest. In order to prove the said repayment the accused has produced his Bank Account Statement at Ex.D.1. On perusal of the same it shows that Rs. 3,98,500/-was paid to M N ENGINEERING through the cheque No.194649. Added to this during the cross examination of the complainant he has clearly and categorically admitted that the repayment of Rs. 3,98,500/- through cheque, but it is stated by the complainant that the said amount was paid towards another loan of Rs. 4,00,000/- separately borrowed by the accused. 10 C.C.5966/2013 In this regard it is to be noted that the complainant has not clarified when he was lend the said sum of Rs. 4,00,000/- to the accused. On the other hand during the cross examination of the accused the Learned Counsel for the complainant has come up with a different version and suggested that, the accused was borrowed total amount of Rs. 12,00,000/- from the complainant, out of the said Rs. 12,00,000/- the accused has repaid Rs. 4,00,000/- and remaining Rs. 8,00,000/- is still due. The relevant portion of suggestion made to the DW.1 reads as under;
......É É zÀÆgÀÄzÁgÀjAzÀ £Á£ÀÄ MlÄÖ gÀÆ.12,00,000/- ¸Á® ¥ÀqÉ¢zÀÄÝ D ¨Á¥ÀÅÛ PÉêÀ® gÀÆ.4,00,000/- ªÀiÁvÀæ ªÀÄgÀÄ¥ÁªÀw¹zÉÝãÉ, G½PÉ gÀÆ.8,00,000/- ¨ÁQ ¥ÁªÀw¸À¨ÉÃPÁVzÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. É É........
The suggestion made by the Learned Counsel for the complainant has clearly and categorically denied by the accused. It is pertinent to note that it is not the case of the complainant that he was lent amount of Rs. 12,00,000/- to the accused. Further it is also not the case of the complainant that he was lent Rs. 4,00,000/- separately to the accused and the said amount was repaid. According to the complainant he was lent only Rs. 8,00,000/- during the period from 06.01.2012 to 04.04.2012 in respect to that loan transaction he was filed the present complaint.
11 C.C.5966/2013
14. So that the suggestion made to the DW.1 that the complainant has totally lent Rs. 12,00,000/- to the accused and only Rs. 4,00,000/- has been repaid is nothing but giving goodbye to the case of complainant by himself. On the other hand the accused has proved the repayment of Rs. 3,98,500/- to the complainant and the said payment was made in the month of July 2012 and the complainant is also admitted the said repayment, but the complainant has stated that the said amount of Rs. 3,98,500/- was paid by the accused towards the separate loan of Rs. 4,00,000/-, but there is no explanation in the complaint or in the legal notice regarding the same. When the accused has established the repayment of Rs. 3,98,500/- and when the complainant is also admitted the said repayment, it clearly goes to show that the suggestion made to the accused that he was borrowed Rs. 12,00,000/- from the complainant and repaid Rs. 4,00,000/-, is completely an after thought and only for over come and to patch up the damage caused by the admission made by the complainant during his cross examination regarding repayment of Rs. 3,98,500/- by the accused. On going through the oral and documentary evidence placed on record by both the parties, this court is of the clear view that the complainant has not lent Rs. 8,00,000/- to the accused and the sum of Rs. 2,96,000/- said to have been paid through the cheque bearing No.242767 did not paid to the accused during 06.01.2012 to 04.04.2012. Further the complainant has failed to prove the passing 12 C.C.5966/2013 of consideration of Rs. 2,75,400/- in cash to the accused on 04.04.2012. No doubt, the complainant has failed to prove the payment of Rs. 8,00,000/- to the accused during the period from 06.01.2012 to 04.04.2012. The complainant is able to produce only lending Rs. 2,28,600/- during 06.01.2012 to 04.04.2012 which is suppressed by the document and admitted by the accused. When such being the case, the case of the complainant that the cheques in question were issued by the accused towards repayment of Rs. 8,00,000/- cannot be acceptable because, the complainant is able to prove lending of Rs. 2,28,600/- only. Added to this in the legal notice, in the complaint and also in the evidence affidavit of the complainant has contended that the accused had issued two cheques i.e., for Rs. 3,15,000/- and for Rs. 40,000/-. Further it is contended that the accused was issued one more cheque bearing No.461880 dated 05.12.2012 drawn on Rajajinagar Co-op Bank Ltd., Bangalore, but it is not stated for how much amount the cheque bearing No.461880 was issued. So it reveals that the complainant has obtained signed blank cheques from the accused. If really the accused was issued filled-up cheque, the complainant should have been discloses that for how much amount the cheque bearing No.461880 has been issued and why the said cheque was taken back and issued the fresh cheque i.e., Ex.P. 1 cheque. For all these reasons this court is of the opinion that the defence raised by the accused that he was issued signed blank cheques as a security to the loan of Rs. 2,28,600/- and 13 C.C.5966/2013 subsequently he was repaid the amount of Rs. 3,98,500/- with interest is appears to be probable defence and the accused also proved the repayment of Rs. 3,98,500/-. Further it goes to show that even after repayment of entire loan amount, inspite of returning the security cheques the complainant has filled-up the cheques and misutilized.
15. Viewing from any angle this court is of the clear view that the complainant has utterly failed to prove the existing of legally enforceable debt of Rs. 8,00,000/- and issuance of the cheques in question towards discharge of legally enforceable debt. On the other hand the accused has clearly established the fact that he was borrowed only sum of Rs. 2,28,600/- during 06.01.2012 to 04.04.2012 and the said amount was repaid with interest. No doubt, the accused has rebutted the presumption U/S.139 of the N.I. Act by cogent and convincing evidence. When such being the case the complaint is liable to be dismissed and the accused is entitle for acquittal. Accordingly, I answer point No.1 in the negative.
16. POINT NO.2: In view of my above findings and reasons, I proceed to pass the following;
ORDER Acting U/S 255(1) of Cr.P.C., accused is hereby acquitted for the offence punishable U/S 138 of N.I. Act, and the complaint is dismissed.
14 C.C.5966/2013
The bail bond will stands cancel after expiry of the appeal period.
{Dictated to the stenographer, transcribed and computerized by her, corrected and then signed by me and then pronounced in the open court on this 9t day of January 2015} (M. RAMESHA), XX ACMM, Bangalore.
ANNEXURE List of witnesses examined on behalf of the prosecution:
P.W. 1 Narasimha Murthy List of Exhibits marked on behalf of the prosecution:
Ex.P. 1 Cheque
Ex.P. 1(a) Signature of the accused
Ex.P. 2 Bank endorsement
Ex.P. 3 Office copy of the legal notice
Ex.P. 4 Postal receipt
Ex.P. 5 Postal acknowledgement
Ex.P. 6 Complaint
Ex.P.7 Bank Account Statement
List of witnesses examined for the defence:
D.W. 1 Mohana Sundaram.P
List of documents marked on behalf of defence:
Ex.D.1 Bank Account Statement
XX ACMM,
Bangalore.
15 C.C.5966/2013