Bangalore District Court
Sri.Kumar V vs Sri.T.Hanumantha Raju (T.H.Raju) on 7 June, 2018
IN THE COURT OF LVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT :-
PADMA PRASAD, BA (Law), LLB.
LVII ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 7TH DAY OF JUNE, 2018.
C.C.No.54368/2016
COMPLAINANT : Sri.Kumar V.
S/o late Venkataramanappa,
No.336, MIG 4th B Cross,
Surya Nagar Phase I,
Chandapura,
Bangalore - 99.
.Vs.
ACCUSED : Sri.T.Hanumantha Raju (T.H.Raju),
S/o K. thimmaiah,
Aged about 38 years,
R/a No.C-12/14, DRDO, Thowship,
Phase-1, C.V.Raman Nagar,
Bangalore - 560093.
****
JUDGMENT
The complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2 C.C.No.54368/20162. The complaint case in nutshell is that the accused approached the complainant for financial help for his marriage and legal necessities. Accordingly the complainant advanced a loan of Rs.3,25,000/-. The accused in order to repay the said amount issued a cheque bearing No.406886 dtd:16.02.2015 drawn on Syndicate Bank, C.V.Raman Nagar Branch, Bengaluru for Rs.3,25,000/-. When the complainant presented the said cheque for encashment that has been returned with bank endorsement stating "Payment stopped by drawer". Thereafter the complainant caused a legal notice to the accused on 04.03.2015. Inspite of service of notice the accused failed to make the payment. Hence, filed this complaint.
3. After filing the complaint, sworn statement of the complainant has been recorded and on perusing the materials on record i.e., cheque, bank endorsement, legal notice and documents for having been caused the notice to the accused, the court has taken the cognizance of offence and issued summons to the accused.
4. In response to the summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
5. To prove the case, the complainant got examined himself as P.W.1 and got marked documents at Ex.P.1 to P.8.
3 C.C.No.54368/20166. On closure of complainant side evidence, the accused statement has been recorded under Sec.313(1)(b) of Cr.P.C., by placing the incriminating evidence appeared against the accused that are denied by the accused.
7. The accused totally disputed the complaint case and examined himself as D.W.1 in support of his case by filing evidence affidavit wherein he claimed that there is no necessity for him to borrow loan of Rs.3,25,000/- from the complainant. The accused claimed that he has given a stop payment in respect of the Ex.P.1 cheque to his banker on 14.02.2012 and also lodged a complaint before the Byappanahalli Police Station on 04.12.2013 regarding the misplace of the cheque. The accused also claimed that he did driving work with complainant's father-in-law Govindraju. The said Govendraju often visited his house between the year 2010-13. At that time he has kept 2 signed blank cheques at his drawer and that might have been taken by the said Govindraju. In the year 2014 there was a quarrel between the said Govindraju and the accused out of that enmity the said Govindraju filed this case through the complainant. The accused also produced Ex.D.1 to 9 in support of his defense. During the course of argument and at the later stage of trial the accused also claimed that the complainant has forged the postal acknowledgment and altered the date mentioned in the postal acknowledgment regarding the service of notice in order to bring the case within the period of limitation. Accordingly claimed that the complaint is barred by limitation and prayed for dismissal of complaint.
4 C.C.No.54368/20168. At the fag end of the trial, the accused has taken a contention that the complaint is barred by limitation. Hence, the complainant filed an application under Sec.142(b) of N.I.Act to condone the delay of 7 days. In the application it is claimed that when the case is posted for argument the accused claimed that notice has been served on 05.03.2015 not on 12.03.2015, as such the complaint filed is well within the limitation. The complainant also claimed that the hand writing used to write the date i.e., 12.03.2015 is not the hand writing of complainant or the advocate for the complainant. It is also claimed in the application that the complainant is not aware that the date mentioned in the postal acknowledgment and the said postal acknowledgment is not come to his hands as the same is addressed to his advocate. The complainant further claimed that he is not aware of the procedural law. The complainant also claimed that this postal acknowledgment has been marked in the presence of accused before the court. The complainant also claims that the complaint is well within the time and inspite of that as an abandoned caution he has filed this application to condone the delay if any in filing the case and proceed with the case.
9. The accused filed detailed objection stating that the notice has been duly served on 05.03.2015 as such the complaint is barred by limitation and as the document has been forged, the delay cannot be condoned. Accordingly prayed for dismissal of application as well as complaint.
5 C.C.No.54368/20163. On the basis of above point for consideration is that;
1. Whether, the complainant made out sufficient grounds to condone the delay in filing complaint?
2. Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?
3. What order?
2. Heard the arguments and perused the materials on record. On that basis my finding on the above are as under;
Point No.1 : In the Negative.
Point No.2 : In the Negative.
Point No.3 : As per final order for the following;
REASONS
10. POINT NOS.1 & 2: When this case has been once posted for arguments, the accused come up with the claim that there was an alteration of date in the postal acknowledgment and the case is barred by limitation and accordingly he led evidence in support of his contention, by that time almost trial has been completed. The parties have fought the case on merits and at the fag end of trial the accused also claimed that the complaint is barred by limitation as such it is just and necessity to consider the aforesaid 2 facts together and it will also avoid the repetition of facts. Accordingly both the points are taken up together for common discussion.
6 C.C.No.54368/201611. The specific case of the complainant is that the accused approached the complainant for financial help for his marriage and legal necessities. Accordingly the complainant advanced a loan of Rs.3,25,000/-. The accused in order to repay the said amount issued a cheque bearing No.406886 dtd:16.02.2015 drawn on Syndicate Bank, C.V.Raman Nagar Branch, Bengaluru for Rs.3,25,000/-. When the complainant presented the said cheque for encashment that has been returned with bank endorsement stating "Payment stopped by drawer". Thereafter the complainant caused a legal notice to the accused on 04.03.2015. Inspite of service of notice the accused failed to make the payment. Hence, filed this complaint.
12. The accused totally disputed the complaint case and examined himself as D.W.1 in support of his case by filing evidence affidavit wherein he claimed that there is no necessity for him to borrow loan of Rs.3,25,000/- from the complainant. The accused claimed that he has given a stop payment in respect of the Ex.P.1 cheque to his banker on 14.02.2012 and also lodged a complaint before the Byappanahalli Police Station on 04.12.2013 regarding the misplace of the cheque. The accused also claimed that he did driving work with complainant's father-in-law Govindraju. The said Govendraju often visited his house between the year 2010-13. At that time he has kept 2 signed blank cheques at his drawer and that might have been taken by the said Govindraju. In the year 2014 there was a quarrel between the said Govindraju and the accused out of that enmity the said Govindraju filed this case through the complainant. The accused 7 C.C.No.54368/2016 also produced Ex.D.1 to 9 in support of his defense. During the course of argument and at the later stage of trial the accused also claimed that the complainant has forged the postal acknowledgment and altered the date mentioned in the postal acknowledgment regarding the service of notice in order to bring the case within the period of limitation. Accordingly claimed that the complaint is barred by limitation and prayed for dismissal of complaint.
13. The complainant in support of his case got examined himself as P.W.1 by filing evidence affidavit wherein he stated in consonance with the complaint case. The complainant also produced documents at Ex.P.1 to 8 in support of his case. Ex.P.1 is the cheque, Ex.P.2 is the bank memo, Ex.P.3 is the notice, Ex.P.4 is the postal receipt, Ex.P.5 is the postal acknowledgment, Ex.P.6 is the bank statement of the complainant, Ex.P.7 is the ITR acknowledgment and Ex.P.8 is the 'B' report extract of vehicle bearing No.KA-04/AC-0369. The definite claim of the complainant in this case that he has advanced a sum of Rs.3,25,000/- to the accused and towards the repayment of said amount the accused has issued the cheque and that has been dishonoured. Thereafter though the complainant called upon the accused to make payment by issuing the demand notice. The accused failed to comply with the notice. Per-contra, the accused totally disputed the case of the complainant and also disputed the issuance of cheque in favour of the complainant. When the accused totally disputed the transaction as well as issuance of the cheque as well as the cheque has been dishonoured in view of the stop 8 C.C.No.54368/2016 payment instructions, the complainant has to prove the transaction claimed by him. Therefore, there is a heavy burden on the complainant to prove that he has advanced the money as claimed by him to the accused and towards the repayment of said amount the accused has issued the cheque.
14. As already stated earlier, the complainant himself examined as P.W.1 in support of his case. The entire complaint nowhere disclosed that on which date or year the accused approached him for financial assistance. At para No.3 of the complaint it is simply stated that the accused is the friend of the complainant and he has approached the complainant for financial assistance and accordingly the complainant lent Rs.3,25,000/- to the accused to meet the legal necessities. Therefore, on which date or which year the accused approached the complainant or on which date or year the complainant has advanced the money is without any explanation. Admittedly Rs.3,25,000/- has been advanced by the complainant to the accused which is certainly not paltry amount, at least the complainant either in the complaint or in the legal notice or at least in the evidence affidavit wherein stated that on which date or year he has advanced the money to the accused. The accused only during the course of cross-examination claimed that the accused approached the complainant for a hand loan of Rs.5,00,000/- in the year 2013 to meet the marriage expenses of accused. If really this accused approached the complainant in the year 2013 to meet his marriage expenses, certainly he would have stated the said fact in the complaint, legal 9 C.C.No.54368/2016 notice or evidence affidavit. Why he has suppressed the said fact is without any explanation. The definite case of the complainant is that the accused approached the complainant to meet the marriage expenses in the year 2013. If it were so, the accused has to marry in the year 2013 but the document produced by the accused at Ex.D.6 falsifies the claim of complainant as the said document shows that the accused married as on 12.05.2011. Hence, question of borrowing money to meet the marriage expenses in the year 2013 certainly does not arise.
15. During the course of cross-examination of D.W.1/accused, the complainant tried to make out a case that accused has borrowed the money to meet the medical expenses of the son of the accused. The complainant claimed that the son of the accused was suffering from serious ill-health and has been hospitalized at Tumakuru. The complainant also failed to prove the said fact. Further, the complainant claimed that he has advanced the money in presence of his sister Smt.Lata. If really the complainant has advanced the money to the accused in presence of his sister Smt.Lata and when the accused disputed the said fact the complainant ought to have examined his sister Lata to prove the advancement of loan. The complainant is not particular about the date on which he has advanced the money and the circumstances claimed by the accused in order to advance the money has also not proved by the complainant.
10 C.C.No.54368/201616. The accused claimed that he has lost the cheque in the year 2012 and also claimed that one Govindraju who is the father in law of the complainant has taken the said cheque. Of course there is a contradictory contention by the accused regarding the cheque. During the cross-examination once the accused claimed that he has issued the blank signed cheque to the father in law of the accused and also claimed that said Govindraju often visited his house and taken away the blank signed cheque kept in his drawer and when the said fact came to his knowledge he has issued the stop payment instructions to his banker etc. Whatever the defence of accused the burden is on the complainant to prove the advancement of loan and issuance of cheque when the accused specifically denied the transaction and issuance of the cheque. The accused has taken specific defense that he lost his cheque in the year 2012. In the year 2012 itself he has issued stop payment instructions to his banker. In order to substantiate the said fact the accused produced his bank passbook at Ex.D.2. The entries found in the Ex.D.1 dtd:14.02.2012 clearly discloses that he has issued a stop payment instructions to his banker and accordingly his banker deducted Rs.110/- in view of the stop payment instructions. It is also relevant to note that the cheque is also dishonoured with the reasons stating that the payment is stopped by the drawer. Therefore, the defense of the accused looks probable that he has issued the stop payment instructions in respect of Ex.P.1 cheque in the year 2012 itself.
11 C.C.No.54368/201617. The accused also claimed that he has lodged a complaint in respect of the misplacing of the cheque in the year 2013 as on 04.12.2013. In support of the said contention he has produced the document at Ex.D.1. Of course the complaint is filed after the lapse of 22 months. The stop payment instruction has been given in the year 2012 itself i.e., on 14.02.2012. Admittedly according to the case of the complainant cheque has been issued in the year 2015. The complainant during his evidence claimed that he has advanced the money to the accused in the year 2013. If it were so, this accused has issued the stop payment instructions to his banker at undisputed point of time. Therefore, the defense of the accused looks probable that he has not issued the Ex.P.1 cheque in favour of the complainant towards the discharge of any debt or liability.
18. The accused also disputed the money lending capacity of the complainant. The complainant has not produced any document to show that he has Rs.3,15,000/- in the year 2015. It is true that the complainant has produced his bank statement at Ex.P.6. The said Ex.P.6 is for the year 2015 not for the year 2013. The admission given by the complainant during his cross-examination discloses that he has advanced the money in the year 2013 as such the complainant ought to have produced the bank statement for the year 2013 not for the year 2015. As such certainly this complainant has suppressed the material documents regarding the source of income. The said fact certainly probablise the case regarding the financial capacity of the accused to advance the money as claimed by him.
12 C.C.No.54368/201619. There is no material on record to show that on which date the complainant has advanced the money to the accused. As already stated earlier, the entire complaint is totally silent about the date of advancing the money to the accused. Admittedly the complainant came to know about the accused through his father in law Govindraju. There is also no material on record to show that this complainant and accused were close friends or associated to each other. Inspite of that the complainant has not obtained even a scrap of paper while advancing the alleged sum of Rs.3,25,000/-. Why the complainant has not insisted for document or receipt for having been advanced huge sum of Rs.3,25,000/- to the accused is also without any explanation. Event he complainant has not received the cheque and not document has been obtained from the accused as a security for repayment of money. No prudent man will advance any huge amount without there being any assurance of repayment.
20. At the fag end of the trial the accused came up with the contention that the complainant has tampered the date in the postal acknowledgment by altering the date as 12.03.2015 by altering the date 5 as 12 in order to bring the complaint in time. The complainant denied the said fact. As such the court has to look into the said document. As per Section 73 of Indian Evidence Act, the court can examine claim of alteration of date in the postal acknowledgment. The cheque is dtd:16.02.2015, bank endorsement is dtd:24.02.2015, the legal notice dtd:04.03.2015. The said notice has been posted on 04.03.2015 as per postal receipt Ex.P.4. The 13 C.C.No.54368/2016 accused claimed that the legal notice served on 05.03.2015. If the notice has been served on the accused on 05.03.2015 then the complainant has to wait for 15 days for payment of cheque amount by the accused. If the accused fails to make the payment then within 30 days after the lapse of 15 days the complaint has to be filed. As such if the notice is served on 05.03.2015 the complainant ought to have filed this complaint on or before 20.04.2015. The present complaint is filed on 23.04.2015 which is certainly barred by limitation.
21. The complainant claims that the notice has been received by the father of the accused and he mentioned the date as 12.03.2015. Receipt of the notice by the father of the accused is not in dispute. The accused claimed that his father received the notice on 05.03.2015. In support of said contention the accused produced the letter issued by the postal authority at Ex.D.8. As per said document the notice has been delivered on 05.03.2015. Therefore, postal authority claims that notice has been served on 05.03.2015.
22. Now, the court has to consider that whether the date has been tampered or overwritten in the Ex.D.5 postal acknowledgment. Admittedly the notice has been posted on 04.03.2015, hence service of notice on 05.03.2015 certainly probable. It is also relevant to note that the Ex.P.5 postal acknowledgment shows the postal seal that discloses the date as 05.03.2015. Even this date seal of the postal authority substantiate the claim of the accused.
14 C.C.No.54368/201623. Apart from that there is a trace of writing number 5 is found beside the date 12. Even there is a traces of overwriting by erasing the previous mentioned date. Therefore, it is clear that there is a tampering of date in the postal acknowledgment by erasing the date earlier written and thereafter the date has been mentioned as 12. Apart from that top portion of the number 5 is also appearing beside the date 12. In this regard the number 5 mentioned in the year can be considered. The said number 5 mentioned in the year certainly probablise the fact that the date is originally mentioned as 5 and later on portion 5 has been removed and the date 12 has been inserted. Therefore, it is clear that the date in the postal acknowledgment has been tampered. Admittedly the said document is in the possession of complainant and not in the possession of accused. Therefore, it is clear that the date has been tampered in order to bring the case in time.
24. The complainant would have easily filed an application to condone the delay in filing the complaint. Instead he has tampered the document and suppressed the said fact. The said act is a deliberate act of the complainant. The complainant all along claims that there is no delay in filing the complaint and he has claimed that delay condonation application is filed in abandoned caution. Even this fact shows that the complainant is not fair to the court and tried to mislead the court also. If the complainant is fair enough would have filed application to condone the delay and the court would have generously condoned the delay in filing the complaint.
15 C.C.No.54368/201625. Even otherwise the complainant has failed to prove that on which date he has advanced the money and the circumstances claimed by the complainant to advance the money to the accused also not proved. Admittedly the cheque has been dishonoured on the stop payment instruction by the accused. The stop payment instruction has been issued by the accused to his banker at the undisputed point of time i.e., on 14.02.2012. Admittedly as per the admission of P.W.1 / complainant he has advanced the money in the year 2013. There is no document to show that the complainant has advanced money to the accused in the year 2013 and also there is no material on record to show that the complainant had sufficient money with him so that he can advance the money to the accused. When the complainant failed to make out a case to show that he has advanced the money as claimed by him, certainly it cannot be accepted that there is any legally enforceable debt so that the presumption can be drawn in favour of the complainant. All these facts certainly probablise the defense of the accused. When the accused made out a probable defense in the case it has to be accepted that the complainant failed to prove his case beyond reasonable doubt. The complainant also failed to prove that the complaint is filed well within the time. Accordingly the point Nos.1 and 2 are answered in the "Negative".
26. POINT NO.3: In view of the aforesaid findings the court proceed to pass the following;
16 C.C.No.54368/2016ORDER Acting under Sec.255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable under Sec.138 of Negotiable Instrument Act.
The bail bond stands cancelled.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 7th day of June, 2018) (PADMA PRASAD), LVII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri.Kumar V.
2. Documents marked on behalf of complainant:
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 Bank Return Memo
Ex.P.3 : O/c of the legal notice
Ex.P.4 : Postal Receipt
Ex.P.5 : Postal acknowledgement
Ex.P.6 : Bank Statement
Ex.P.7 : ITR acknowledgment
Ex.P.8 : 'B' report
17 C.C.No.54368/2016
3. Witnesses examined on behalf of Accused:
D.W.1 : Sri.T.Hanumanthraj
4. Documents marked on behalf of Accused:
Ex.D.1 : Receipt issued by the police authority
Ex.D.2 : Bank pass book
Ex.D.3 : Letter issued by bank
Ex.D.4 : Endorsement issued by the police
Ex.D.5 : Copy of the complaint
Ex.D.6 : Notarized copy of the marriage certificate
Ex.D.7 : Notarized copy of the birth certificate
Ex.D.8 : Letter issued by the Postal Authority
Ex.D.8(a) : Enclosure to Ex.D.8
Ex.D.9 : Letter written to the Postal Authority
dtd:05.01.2018
(PADMA PRASAD)
LVII ACMM, BENGALURU.