Bangalore District Court
M.S.Narayanamurthy vs K.G.Srikanta Swamy on 26 October, 2016
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 26th day of October - 2016
PRESENT: SRI. S.G.SALAGARE, B.Sc., LL.B.,(Spl)
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.4665/2013
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : M.S.Narayanamurthy,
S/o.Late.M.V.Subramanya Shastry,
No.1099, 7th Main, 9th Cross,
Srinivasanagar,
Bengaluru-50.
(Rep. by Sri.C.N.Achutha Murthy,
Advocate)
V/S
Accused : K.G.Srikanta Swamy,
Senior Manager,
Canara Bank,
Benson Town Branch,
Jayamahal Extension,
Bengaluru.
(Rep. by Sri.Lokesha.M, Advocate)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 26.10.2016.
(S.G.SALAGARE)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.4665/2013
JUDGMENT
This complaint is filed by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as under:
The accused is a Senior Manger of Canara Bank, Bensontown, Bengaluru. Accused was promised and assured to get sanction of car loan through Canara bank to complainant in the 1st week of August, 2012. The accused had promised that by the end of August, 2012, the loan will be sanctioned for purchasing car. Accused had insisted the complainant to pay Rs.1 lakh towards the initial EMI for purchasing car, so that loan will be processed. Complainant believing the words of accused arranged for Rs.1 lakh through a private financier and paid the same to the accused. Complainant did not get any message from accused and complainant found that accused has mislead and duping him as same was done to many others by a similar modus operandi and cheated the customers. When complainant demanded for return of Rs.1 lakh paid to accused, accused in order to discharge his liability has Judgment 3 C.C.4665/2013 issued two cheques bearing No.413441 dated:26.09.2012 and another cheque bearing No.044632, dated:10.10.2012 drawn for Rs.50,000/- each in total Rs.1,00,000/- both cheques were drawn on Canara Bank, South End Circle, Bengaluru in favour of complainant and accused assured that the said cheques will be honoured on their presentation.
It is further case of complainant that, on 16.11.2012 he has presented the said cheques through his banker viz., M/s. Andhra Bank for collection, but the said cheques were returned unpaid for the reasons "Account Closed". On 07.12.2013, the complainant brought this fact to the knowledge of accused by issuing demand notice, and the said demand notice was duly served upon accused on 11.12.2013. After receipt of notice, the accused has sent the reply on 24.12.2013, but he has not paid the cheques amount to the complainant. Hence, the complainant has filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act and prayed to punish the accused with maximum sentence and to award compensation to the complainant. Judgment 4 C.C.4665/2013
3. My predecessor after perusing records, took cognizance of offence, and recorded sworn statement, ordered to register Criminal Case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused after service of summons put his appearance through his counsel and has been enlarged on bail. Thereafter, the court has recorded the plea of accused and the accused has pleaded not guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4. The complainant in order to prove his case, got examined himself as PW-1 and got marked eleven documents at Exs.P1 to P11 and closed his side. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under Section 313 of Cr.P.C., the accused denied all the incriminating evidence arisen against him. The accused in order to disprove the case of complainant got examined himself as DW.1 and got marked one document at Ex.D1 and closed his side.
Judgment 5 C.C.4665/2013
5. Both side counsels submitted the written arguments and perused the same.
6. The following points would arise for my consideration:
1) Whether the complainant proves beyond all reasonable doubt that, he had advanced Rs.1 lakh towards the initial EMI for purchasing car, and later when complainant demanded for return of Rs.1 lakh paid towards initial EMI, accused to repay the amount issued Exs.P1 and P2 - cheques bearing No.413441 dated:26.09.2012 and another cheque bearing No.044632, dated:10.10.2012 drawn for Rs.50,000/- each, both cheques were drawn on Canara Bank, South End Circle, Bengaluru in favour of complainant for discharge of the said amount, and on their presentation, cheques came to be dishonoured for the reasons 'Account Closed' and even after service of notice, the accused has failed to repay the amount and thereby accused is guilty of the offence punishable under Section 138 of N.I.Act?
2) What Order?
7. My findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : As per final order, for the following:Judgment 6 C.C.4665/2013
REASONS
8. POINT NO.1: It is alleged that, the accused had insisted the complainant to pay an amount of Rs.1 lakh toward initial EMI and when complainant demanded for return of said amount, accused to discharge his liability has issued two cheques bearing No.413441 dated:26.09.2012 and another cheque bearing No.044632, dated:10.10.2012 drawn for Rs.50,000/- each, both cheques were drawn on Canara Bank, South End Circle, Bengaluru in favour of complainant. When the said cheques were presented for encashment, same were dishonoured for the reasons 'Account Closed'. Even after issuance of demand notice, accused has not made any arrangement for return of cheques amount. The accused has denied the accusation made against him.
9. To prove his case, the complainant got examined himself as PW.1 by filing his affidavit in lieu of his examination in chief evidence. In the affidavit, PW.1 has reiterated the averments made in the complaint and in support of his contention; PW.1 has got marked eleven documents. Among them two cheques bearing No.413441 Judgment 7 C.C.4665/2013 dated:26.09.2012 and another cheque bearing No.044632, dated:10.10.2012 drawn for Rs.50,000/- each, are marked as Exs.P1 and P2. The said cheques were drawn on Canara Bank, South End Circle, Bengaluru in favour of complainant. The signatures of accused are marked as Ex.P1(a) and P2(a). Exs.P3 and P4 are the Bank challan counter foils, they disclose that the complainant has presented the cheques bearing Nos.413441 and 044632 for collection, Exs.P5 and P6 are the Bank Endorsements issued by the Andhra Bank, the contents of Exs.P5 and P6 disclose that, the cheques bearing No.413441, dated:26.09.2012 drawn for Rs.50,000/- and another cheque bearing No.044632, dated:10.10.2012 drawn for Rs.50,000/-, are dishonoured for the reasons 'Account Closed'. Ex.P7 is the Demand Notice dated:07.12.2012, the recitals of Ex.P7 disclose that, the complainant has issued this notice to the accused through his counsel. By issuing this notice complainant called upon the accused to repay the cheques amount of total Rs.1 lakh within 15 days from the date of receipt of notice. Ex.P8 is the Reply notice dated:24.12.2012 issued by the accused through his counsel to complainant, Ex.P9 is the Consent letter alleged Judgment 8 C.C.4665/2013 to be issued by the accused in favour of complainant, Ex.P10 is the Xerox copy of Voters Identity Card of complainant and Ex.P11 is the Certified copy of Reply notice addressed to R.Shivaprasad and R.Shashiprasad, Advocates in respect of the notice issued by Mr.P.Ramesh on 19.08.2011.
10. In order to substantiate his defence accused got examined himself as DW.1 and in support of his defence accused got marked one document at Ex.D1 i.e., Certified copy of judgment passed in Crl. A.No.1030/2014 wherein the judgment passed in C.C.No.4771/2012 is set aside and accused is acquitted in the said case.
11. In the cross-examination of DW.1, accused has admitted the cheques and signatures on cheques. Thus the initial presumptions arises in favour of complainant under Section 118(a) of Negotiable Instruments Act that, complainant is holder in due course of cheques Exs.P1 and P2 for due consideration. Further, from the perusal of records, it reveals that complainant has complied the provisions of Section 138 of Negotiable Instruments Act. Hence, the initial presumption under Section 139 of Judgment 9 C.C.4665/2013 Negotiable Instruments Act arises in favour of complainant that accused has issued the cheques Exs.P1 and P2 for discharge of legally recoverable debt. The initial presumptions arisen in favour of complainant under Sections 118(a) and 139 of Negotiable Instruments Act are rebuttable presumptions, and accused can rebut the presumptions by cross-examining PW.1 or by adducing the defence evidence or by both.
12. To rebut the presumptions, accused has choosen to cross-examine PW.1 and also adduced his defence evidence. In the examination in chief PW.1 has contended that, accused who was the Senior Manager of Canara Bank of Bensontown, Bengaluru had promised and assured to get sanction car loan through Canara bank to complainant in the 1st week of August, 2012 and he had promised that by the end of August, 2012 the loan will be sanctioned for purchasing car. It is alleged that, accused had insisted the complainant to pay Rs.1 lakh towards the initial EMI for purchasing car, so that loan will be processed. Complainant believing the words of accused arranged for Rs.1 lakh through a private financier and paid the same to Judgment 10 C.C.4665/2013 the accused. Later complainant did not get any message from accused and complainant found that accused has mislead him and accused is duping him as same was done to many other persons by a similar modus operandi and cheated the customers. Complainant after 3 to 4 months demanded for return of his advanced money and to repay the amount accused has issued two cheques bearing No.413441 dated:26.09.2012 and another cheque bearing No.044632, dated:10.10.2012 drawn for Rs.50,000/- each in total Rs.1,00,000/- both cheques were drawn on Canara Bank, South End Circle, Bengaluru. But the said cheques are dishonoured on their presentation and accused has not arranged for return of the cheques amount even after issuance of demand notice. The case of complainant is totally denied by the accused. In the cross-examination of PW.1 and in the defence evidence accused has totally denied the transaction with complainant. Accused stated that, complainant is stranger to him, he has never seen the complainant and he has never borrowed Rs.1 lakh from complainant, and he has not issued Exs.P1 and P2 in favour of complainant for discharge of alleged loan of Rs.1 lakh. Accused has taken defence that, on the alleged date Judgment 11 C.C.4665/2013 of loan transaction he was not at Bengaluru and he was working at Mumbai. Accused contended that, earlier he had borrowed Rs.3,50,000/- from one P.Ramesh on different dates and whenever he borrowed the amount, he had issued blank signed cheques for the purpose of security. The said P.Ramesh had lodged the complaint against him in C.C.No.4771/2012 for the offence punishable under Section 138 of Negotiable Instruments Act, on the file of XXII Addl. CMM, Bengaluru. Wherein the Hon'ble XXII ACMM Court had convicted him and in appeal bearing Criminal Appeal No.1030/2014 he was acquitted. It is the defence of accused that, he had issued six blank signed cheques to P.Ramesh and he had returned some portion of money to P.Ramesh, but the said P.Ramesh had not returned the blank signed cheques to accused. On the contrary, P.Ramesh has handed over two cheques to the complainant and got filed the present case through complainant herein. Absolutely, there was no any transaction between complainant and accused. It is the contention of accused that, after receipt of demand notice, he had lodged complaint against the complainant, but when the police went to the address of complainant, police Judgment 12 C.C.4665/2013 returned without enquiry, because in the given address complainant was not residing. This fact is elicited in the cross-examination of PW.1 on page No.7.
13. PW.1 has stated that, he do not know that, on 26.02.2014 accused had lodged the complaint against P.Ramesh, his wife Prema and complainant at Basavanagudi Police Station. PW.1 has stated that, since three years he is not residing at the address given in the complaint cause title. PW.1 denied the suggestion that, because of this fact police could not conduct enquiry in the said complaint. PW.1 further stated that, since 4 to 6 months he is residing at Chamarajpet, but he cannot say the exact address of the said resident. Thus the complainant is not able to state the exact residential address of him. From the deposition of PW.1 an inference can be drawn that, PW.1 is hiding the truth. PW.1 also stated that, he cannot state the name of his advocate, who was appeared for him earlier, but his office was at Kumaraswmay Layout. From this deposition an inference can be drawn that, accused do not know anything about the facts of this case. PW.1 denied the suggestion that, Judgment 13 C.C.4665/2013 P.Ramesh had issued the demand notice through one S.R.Sreeprasad, Advocate on behalf of complainant.
14. Ex.P9 is a document styled as consent letter. The recitals of Ex.P9 disclosed that accused Srikantaswamy had admitted that, he had received Rs.1 lakh from complainant and he agreed to return the said amount within 30 days. Ex.P9 bears the signature of accused, but accused has denied the signature appearing on Ex.P9 and accused has denied the execution of Ex.P9 in favour of complainant. Accused has clearly stated that, the signature appearing on Ex.P9 is not signed by him and same is forged by the complainant. When the accused denied the execution of Ex.P9, burden lies on the complainant to prove the execution of Ex.P9. Except the production of document Ex.P9, complainant has not adduced any evidence to prove the execution of Ex.P9. Thus complainant has failed to prove the contents of Ex.P9 and the same cannot be considered for any purpose.
15. It is the defence of accused that, complainant is totally stranger to him and he has not issued Exs.P1 and P2 in favour of complainant and the said cheques were Judgment 14 C.C.4665/2013 issued to one P.Ramesh and the said P.Ramesh has handed over the Ex.P1 and P2 to complainant and got filed this false case against him. It is the contention of complainant that, in the 1st week of August, 2012 accused had promised and assured him to get sanction of the loan for purchasing car for him. For this purpose accused insisted to pay EMI amount on Rs.1 lakh. Complainant has stated that, he arranged the money through private financiers and paid the same to accused. Complainant has not stated the names of financiers in legal notice, complaint and so also in the examination in chief of PW.1. In the cross-examination PW.1 has stated that, he borrowed an amount of Rs.50,000/- from one Hebbar and he added Rs.50,000/- of him and paid in all Rs.1 lakh to accused. To substantiate this fact complainant has not stated on which date he borrowed amount from Hebbar and on which date he paid Rs.1 lakh to accused. Absolutely, there is no material on record to believe that complainant had mobilized an amount of Rs.1 lakh and paid to accused. When the complainant states that he borrowed money from Hebbar, then an inference can be easily drawn that in the month of August, 2012 he was not having Rs.1 lakh with him. In the Judgment 15 C.C.4665/2013 cross-examination PW.1 has stated that, remaining Rs.50,000/- was with him. But complainant has not stated in the complaint, legal notice and in the examination in chief that he was having Rs.50,000/- with him and by borrowing Rs.50,000/- from one Hebbar, he paid Rs.1 lakh to accused. Complainant has not taken any steps to examine the said Hebbar, to establish that he had borrowed Rs.50,000/- from Hebbar. In the absence of the oral evidence of Hebbar, it cannot be believed that complainant has borrowed an amount of Rs.50,000/- from the said Hebbar and paid to accused. Complainant has not produced any document to show that he was having Rs.50,000/- with him. Complainant has also not adduced evidence to prove his daily earning. Thus complainant has totally failed to prove that in the month of August 2012 he mobilized Rs.1 lakh and paid to accused.
16. It is alleged by complainant that, accused insisted for Rs.1 lakh as EMI amount. When the complainant was assured to get sanction loan for purchasing car, then question of paying down payment or EMI of Rs.1 lakh does not arise. Complainant has not stated which company car Judgment 16 C.C.4665/2013 he was going to purchase and what was its price. Complaint has not produced the quotation of the alleged car. It is also not stated in the legal notice and complaint that from which company complainant was intended to purchase the car. Before getting loan sanctioned, complainant has to obtain a quotation from the concerned dealer or showroom of the vehicle and submit it for sanctioning the loan. Accused has not placed any such material on record to believe that, he had taken quotation from the concerned dealer of the Indica Car. Further in case of getting loan for purchasing car the question of paying EMI does not arise. The complainant being an auto driver will be having better knowledge in respect of purchasing the car by obtaining loan. Complainant will also have the knowledge of documents required to be produced for getting sanction of loan from the bank. Complainant has not produced any copy of the application submitted for sanctioning the loan in the bank. In the absence of the material documents such as application for loan, quotation of the showroom and his account extract or pass book, it cannot be believed that, accused had promised to get sanction of car loan for complainant and he Judgment 17 C.C.4665/2013 had taken Rs.1 lakh as EMI amount from complainant. Accused has stated that, complainant was not having any account in his bank, then question of sanctioning the loan from his bank does not arise. Complainant has not stated that, he was having account in the bank of accused, and also complainant has not produced any document to this effect. Thus complainant has failed to prove that he is having account in the bank of accused. When the complainant has failed to prove the payment of Rs.1 lakh to accused as EMI amount, then question of giving two cheques Ex.P1 and P2 for discharge of said alleged amount does not arise. Complainant has not placed on record the cogent, convincing and trustworthy evidence to believe that complainant has given amount of Rs.1 lakh to accused in the month of August 2012, and in-turn on the demand made by complainant, accused had issued Ex.P1 and P2 cheques for discharge of the alleged amount of Rs.1 lakh. Absolutely there is no any clinching evidence to believe the case of complainant. The oral and documentary evidence placed on record, probablize that the case of accused is having more weightage, then the case of complainant. Judgment 18 C.C.4665/2013
At this stage this court has gone through the decision reported in KCCR 12 (3) page 2057, the Hon'ble Apex court is held that:
"Mere issuance of cheque is not sufficient unless it is shown that, the said cheque was issued towards discharge of legally recoverable debt. When the financial capacity of complainant is questioned, the complainant has to establish his financial capacity".
17. In the case on hand, complainant has failed to establish that he has paid an amount of Rs.1 lakh to the accused and the accused has issued Exs.P1 and P2 cheques for discharge of the above said amount. Hence, the complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act. In view of the above said reasons, I hold point No.1 in the Negative.
18. Point No.2: In view of my findings on 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 Instruments Act.Judgment 19 C.C.4665/2013
The bail bond and 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 26th day of October - 2016) (S.G.SALAGARE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : K.S.Narayanamurthy List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques (2 Nos.) Exs.P1(a) & P2(a) : Signatures of accused Exs.P3 and P4 : Bank challan counter foils Exs.P5 & P6 : Bank endorsements Ex.P7 : Office copy of legal notice Ex.P8 : Reply Notice Ex.P9 : Consent letter Ex.P10 : Xerox copy of Voters identity card Ex.P11 : CC of letter dtd:11.10.2011
List of Witnesses examined on behalf of the defence:
DW.1 : K.G.Srikantaswamy List of Exhibits marked on behalf of defence:
Ex.D1 : CC of Judgment in Cri.A.No.1030/2014 XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 20 C.C.4665/2013
26.10.2016.
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.
The bail bond and surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.