Bangalore District Court
H.Ramaiah vs B.Krishna Bhar on 13 January, 2016
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 13th day of January - 2016
PRESENT: SRI. L.R. KURANE, B.Com., LL.B., (Spl)
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.18626/2010
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : H.Ramaiah,
S/o.Late.Kalaiah,
Aged about 54 years,
R/at.No.3445, Saketha,
4th Main, Shastri Nagar,
Bengaluru-28.
(Rep. By Sri.G.Papi Reddy,
Advocate)
V/S
Accused : 1. B.Krishna Bhar,
Major,
Father's name not known,
R/at. No.35, Rathna Vilas Road,
Basavanagudi,
Bengaluru-04.
2. M/s.Vishwabharathi House
Building Co-Operative Society Ltd,
No.35, Rathna Vilas Road,
Basavanagudi,
Bengaluru-04.
Rep. by its President
B.Krishna Bhat.
(Rep. By Sri.M.Devaraja, Advocate)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
JUDGMENT 2 C.C.18626/2010
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused Nos.1 and 2 have
been Convicted.
DATE OF ORDER : 13.01.2016.
(L.R. KURANE)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
This complaint has filed by the complainant against the accused Nos.1 and 2 under Section 200 Cr.P.C., for the offence punishable under Section 138 of Negotiable Instruments Act, to take cognizance of the offence under Section 138 of Negotiable Instruments Act, and punish the accused Nos.1 and 2 in accordance with law.
2. The brief facts of the complaint is set out as follows:
The complainant is the member of 2nd accused and the 1st accused being President of the 2nd accused. It is further stated that, the accused No.1 collected a total sum of Rs.17 lakhs from 1981 to 2008 from him, for allotment of site formed by the 2nd accused. Since, the accused No.2 could not allotted the site in favour of the complainant, the 1st accused JUDGMENT 3 C.C.18626/2010 towards full and final settlement of the amount has issued post dated cheque bearing No.769238, dated:30.09.2009 for Rs.25,84,000/- drawn on Canara Bank, Girinagar Branch, Bengaluru which includes interest of Rs.8,84,000/- in favour of the complainant.
It is further case of complainant that, as per instructions of accused, the complainant has presented the said cheque through his banker viz., Karnataka Bank, Hosakerehalli Branch, Bengaluru for its encashment and the same was returned dishonoured on 07.10.2009 with an endorsement "Funds Insufficient" in the account of accused. The complainant intimated the said fact to the accused and the accused instructed him to re-present the said cheque for encashment and accordingly, the complainant has presented the said cheque for encashment on 31.10.2009, which was again dishonoured for the reasons "Funds Insufficient" in the account of accused dated:02.11.2009. On 09.11.2009, the complainant had issued a legal notice to the accused by RPAD as well as Under Certificate of Posting to the accused calling upon them to pay the amount of dishonour cheque. The notice sent by RPAD JUDGMENT 4 C.C.18626/2010 has been returned with postal endorsement 'Door Locked' on 11.11.2009 and 'Not Claimed' on 18.11.2009. After service of notice the accused neither replied nor paid the cheque amount to the complainant. Therefore, the accused Nos.1 and 2 have committed an offence punishable under Section 138 of Negotiable Instruments Act.
3. My predecessor after perusing records, took cognizance of offence, and sworn statement of the complainant has been recorded. The Criminal Case has been registered against the accused Nos.1 and 2 for the offence punishable under Section 138 of Negotiable Instruments Act. The accused after service of summons put their appearance through their counsel and has been enlarged on bail. Thereafter, the court has recorded the plea of accused and the accused Nos.1 and 2 have not pleaded 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 twenty three documents at Exs.P1 to P23 and closed his side of evidence. After completion of the evidence of complainant, the JUDGMENT 5 C.C.18626/2010 substance of the evidence has been read over and explained to the accused Nos.1 and 2 under Section 313 of Cr.P.C., the accused Nos.1 and 2 have denied all the incriminating evidence available against them. The accused in order to disprove their case got examined accused No.1 himself as DW.2 and one witness as DW.1 and got marked seven documents at Exs.D1 to D7 and closed their side of evidence.
5. I have heard the arguments on both the sides.
6. The following points would arise for my consideration:
1. Whether the complainant proves beyond all reasonable doubt that, the 1st accused had collected an amount of Rs.17 lakhs from 1981 to 2008 from him, for allotment of site formed by the 2nd accused, since the accused No.1 could not allotted the site in favour of him, the accused No.1 towards full and final settlement of the amount has issued a post dated cheque bearing No.769238, dated:30.09.2009 for Rs.25,84,000/- drawn on Canara Bank, Girinagar Branch, Bengaluru towards legally enforceable debt?
2. Whether the complainant further proves beyond all reasonable doubt that, the accused JUDGMENT 6 C.C.18626/2010 have committed an offence punishable U/S 138 of NI Act?
3. What Order?
7. My findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
REASONS
8. POINT NOs.1 & 2: These two points are inter linked in order to avoid repetition of facts both points are taken for discussion at once.
In order to prove his case, the complainant has examined himself as PW.1 and the PW.1 in his examination in chief led by way of affidavit has reiterated the complaint averments. Apart from the oral evidence, the complainant has also produced the documents namely the cheque at Ex.P1 issued by the accused for Rs.25,84,000/- and the same was presented by the complainant for its encashment and the said cheque was returned unpaid for the reasons "Insufficient Funds" in the account of accused. Exs.P2 and P3 are the Endorsements issued by the Canara Bank, Ex.P4 is the legal JUDGMENT 7 C.C.18626/2010 notice issued by the complainant to the accused demanding payment of cheque amount, Exs.P5 & P6 are the Postal receipts, Ex.P7 is the UCP Receipt, Exs.P8 and P9 are the Unserved Postal Covers, Ex.P10 is the acknowledgment letter issued by the accused in favour of complainant. Ex.P11 is the complaint lodged by the complainant against the accused Nos.1 and 2, Ex.P12 is the police complaint lodged by the secretary of 2nd accused before the Station House Officer, Basavangudi Police Station, Bengaluru, Ex.P13 is the FIR in Crime No.246/2012 of Basavanagudi Police Station, Ex.P14 is the Police Complaint dated:21.10.2011, Ex.P15 is the FIR in Crime No.349/2011 of Basavanagudi Police Station, Ex.P16 is the police complaint lodged by one P.Narayan against the accused No.1 dated:12.12.2011, Ex.P17 is the FIR in Crime No.280/2011 dated:12.12.2011, Ex.P18 is the police complaint lodged by one Shashikala.S Bhatta against the accused No.1, Ex.P19 is the FIR in Crime No.315/2010 of Girinagar Police Station, Ex.P20 is the Certified copy of Order sheet in C.C.No.3383/2013, Ex.P21 is the Certified copy of Charge sheet in C.C.No.3383/2013, Ex.P22 is the Certified JUDGMENT 8 C.C.18626/2010 copy of Order sheet in Cr.No.349/2011, Ex.P23 is the Certified copy of Charge sheet in C.C.No.3384/2013.
9. It is the defence of accused that, he knew the complainant. On 28.05.2009, he had no dues payable to the complainant. The accused No.1 had not issued Exs.P1 and P10 to the complainant, but the complainant by threatening him and forcibly obtained the Exs.P1 and P10 from him. It is admitted fact that, Ex.P1 belongs to the account of accused and it bears his signature. It is admitted fact that, there is a signature of accused on Ex.P1.
10. The PW.1 in his examination in chief has reiterated the facts of complaint. In his cross-examination, the PW.1 stated that, he has paid Rs.18 lakhs through 3 demand drafts. The PW.1 stated that, he has paid Rs.12,000/-, Rs.37,000/- and Rs.1,12,000/- through demand drafts.
11. The advocate for accused argued that, the complainant has not produced single document to prove that, he had paid an amount of Rs.18 lakhs to the accused. The advocate for accused argued that, the complainant has paid the amount to the society and not to the accused No.1. The PW.1 admitted JUDGMENT 9 C.C.18626/2010 that, he has paid the amount to the society and the society has to allot the site to him. The advocate for accused argued that, the accused No.1 is not liable to pay any amount to the complainant. The accused has not denied that he had not the President or Secretary of accused No.2.
12. The complainant has produced Ex.P12 dated:10.09.2012. Ex.P12 is the complaint lodged by one Vadhi Raj.H.V, the Secretary of accused No.2 against the accused No.1 alleging that, the accused No.2 Society was incorporated in the year 1972-73 and the accused No.1 was the founder member and President of accused No.2. The advocate for accused submitted that, as on the date of issue of cheque i.e., on 25.08.2009 the accused No.1 was not the President and Secretary of accused No.2 and produced Ex.P5. The Ex.P5 is the Certified copy of order dated:17.08.2009 passed by ARCS suspending the accused No.1 from the post of Director, for a period of 3 years.
13. The accused/DW.2 in his cross-examination on page 6 stated that, "¤¦-1£ÀÄß ¦AiÀÆð¢UÉ ¸ÉÊmï ªÀÄAdÆgÀÄ ªÀiÁr¸À®Ä DUÀzÉà EgÀĪÀÅzÀjAzÀ ºÀtªÀ£ÀÄß ªÀÄgÀ½ PÉÆqÀĪÀÅzÀPÉÆÌøÀÌgÀ £Á£ÀÄ ¦AiÀiÁð¢UÉ ZÉPÀÄÌ ¤ÃrgÀÄvÉÛÃ£É JUDGMENT 10 C.C.18626/2010 J£ÀÄߪÀ ¥Àæ±ÉßUÉ ¸ÁQëÃzÁgÀgÀÄ AiÀiÁªÀ PÁgÀtPÁÌV ¦AiÀiÁð¢UÉ ¤¦-1£ÀÄß ¤ÃrgÀÄvÉÛÃ£É J£ÀÄߪÀÅzÀÄ £É£À¦®è. ¤¦-10£ÀÄß ¸ÁQëÃzÁgÀgÀÄ ¥Àj²Ã°¹, CzÀ£ÀÄß £Á£Éà §gÉzÀÄ ¸À» ªÀiÁrPÉÆnÖgÀÄvÉÛÃ£É JAzÀÄ £ÀÄr¢gÀÄvÁÛgÉ."
14. The above said cross of DW.2 reveals that, the accused himself with his own hand writing written the Ex.P10 and issued to the complainant. The accused has not stated that, the complainant has obtained Exs.P1 and P10 from him forcibly. It is not in dispute that, from 1981 to 2008 the accused No.2 Vishwabharathi House Building Co-Operative Society Ltd., is in existence. It is not in dispute that, the complainant is member of accused No.2 society. It is not in dispute that, the accused No.1 is the President of accused No.2 Society. The accused have not disputed regarding payment made by complainant from 1981 to 2008 to the accused No.2 Society for allotment of site to him.
15. The advocate for accused argued that, the complainant has not capacity to pay the amount mentioned in the disputed cheque. The advocate for accused has relied upon ruling reported in SC 2015 (1) page 99. I have gone through JUDGMENT 11 C.C.18626/2010 the facts of the above said ruling. The facts of the above said ruling is not applicable to the present case in hand.
16. The accused/DW.2 in his cross-examination himself admitted regarding Ex.P10. And therefore there is no question of capacity of complainant to pay an amount of Rs.17 lakhs, and the accused No.1 himself stated that, the complainant is entitled to receive Rs.8,84,000/- interest on the amount paid by him. The complainant has produced Ex.P13 - FIR filed against the accused. The complainant has produced Ex.P14 is the complaint dated:31.10.2011 lodged by the Secretary of Vishwabharathi House Building Co- Operative Society Ltd., against the accused. The complainant has also produced Exs.P15 and P16 complaint dated:12.12.2011 lodged by one P.Narayan against the accused. Ex.P17 is the FIR dated: 12.12.2011 which was registered against the accused No.1 on the basis of Ex.P18 complaint lodged by one Shashikala.S Bhatta.
17. The accused in order to prove his defence has got examined DW.1 who is friend of him and produced Exs.D3 and D4. The DW.1 in his examination in chief has reiterated JUDGMENT 12 C.C.18626/2010 that, he knew the accused from 40 years, on 25.08.2009 the accused No.1 was not feeling well and he went to his house to see him. At that time, two persons broken the gate and trespassed the house of accused No.2 and talking with him in singular words. The accused stated them that, you have paid amount to society and directed to ask the society, but the said two persons instead of demanding money from the society, have forcibly obtained blank signed cheque from him, and he has filed police complaint.
18. The DW.1 in his cross-examination stated that, he and accused were running Rashtraprabh Newspaper. In the said newspaper the accused No.1 was the Editor and he was Assistant Editor. The DW.1 in his cross-examination stated that, he do not know the transaction between accused and complainant. The DW.1 who is the friend of accused No.1, there is a chance of deposing falsely to support the accused. Hence, his evidence is not trustworthy.
19. The accused has produced Ex.D2-Letter issued by the accused No.1 to the Manager, Canara Bank, Girinagar Branch, Bengaluru. The accused has issued Ex.D2 to the JUDGMENT 13 C.C.18626/2010 Bank to stop the payment of cheque dated:25.08.2009. But, Exs.P2 and P3 reveals that, the disputed cheque Ex.P1 was dishonoured for the reasons Funds Insufficient in the account of accused. If the accused had really filed application i.e., Ex.D2 to stop payment of disputed cheque, the bank might have issued endorsement as payment stopped by drawer. Therefore, it creates doubt about genuiness of Ex.D2. Moreover, the accused No.2 had not explained how he is in possession of Ex.D2. The accused has produced Exs.D3 and D4 complaint lodged by them to police station against the complainant, but the accused have not produced any other document to accept the defence of them. Therefore, it indicates that, the accused No.2 has taken false defence against the complainant.
20. The advocate for accused argued that, the complainant has not issued legal notice to the correct address of the accused. The advocate for accused further argued that, the notice is not served upon accused. The accused/DW.2 in his examination in chief has not stated that, he has not received the notice from the complainant and he has not stated that, the complainant has not sent the legal notice to his correct JUDGMENT 14 C.C.18626/2010 address. The advocate for accused has not put suggestion, stating that, the accused No.2 is not residing in the address No.35, Ratnavilasa Road, Basavanagudi, Bengaluru.
21. The complainant has produced Ex.P8 - Postal Cover it discloses that, the accused has not claimed the notice sent through RPAD. When the accused No.1 has not disputed the address shown in the Exs.P8 and P9, he cannot deny that he has not received the notice from the complainant.
22. The complainant proved that, the accused have issued the disputed cheque for discharge of legal liability. The accused have failed to rebut the presumption available to complainant under Section 139 of Negotiable Instruments Act. The complainant by leading oral and documentary evidence proved that, the accused have committed an offence punishable under section 138 of Negotiable Instruments Act. The amount of cheque is Rs.25,84,000/- which includes Rs.8,84,000/- interest on amount paid by complainant. The accused by including Rs.8,84,000/- interest has issued Ex.P1 for an amount of Rs.25,84,000/-. Therefore, it is not proper to convict the accused with double amount of the cheque as JUDGMENT 15 C.C.18626/2010 per Section 138 of Negotiable Instruments Act. In view of the above said reasons, I hold point Nos.1 and 2 in the Affirmative.
23. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C.
the accused Nos.1 and 2 have been convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused Nos.1 and 2 is sentenced to pay total fine amount of Rs.30,10,000/- (Rupees Thirty lakhs ten thousand only). In default shall under go simple imprisonment for 2 (two) years each.
Out of the total fine amount a sum of Rs.30,00,000/- (Rupees Thirty lakhs only) is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.10,000/-
(Rupees Ten thousand only) shall be remitted as fine to the State.
The bail bonds and surety bonds of the accused stand cancelled.JUDGMENT 16 C.C.18626/2010
Issue a free copy of the Judgment to the accused forthwith.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 13th day of January - 2016) (L.R. KURANE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : H.Ramaiah List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque
Ex.P1(a) : Signatures of accused No.1
Exs.P2 & P3 : Bank endorsements
Ex.P4 : Office copy of legal notice
Exs.P5 to P7 : Postal Receipts
Exs.P8 & P9 : Postal Covers
Ex.P10 : Letter dtd:25.08.2009
Ex.P11 : Complaint
Ex.P12 : Police Complaint dtd:10.09.2012
Ex.P13 : FIR in Cr.No.246/2012
Ex.P14 : Police Complaint dtd:31.10.2011
Ex.P15 : FIR in Cr.No.349/2011
Ex.P16 : Police Complaint dtd:12.12.2011
Ex.P17 : FIR in Cr.No.280/2011
Ex.P18 : Police Complaint dtd:21.12.2010
Ex.P19 : FIR in Cr.No.315/2010
Ex.P20 : CC of Order sheet in CC No.3383/13
Ex.P21 : CC of Charge sheet in CC No.3383/13
Ex.P22 : CC of Order sheet in Cr.No.349/2011
Ex.P23 : CC of Charge Sheet in CC No.3384/13
JUDGMENT 17 C.C.18626/2010
List of Witnesses examined on behalf of the defence:
DW.1 : M.V.Kannaiah DW.2 : B.Krishna Bhat
List of Exhibits marked on behalf of defence:
Ex.D1 : Telephone Bill
Ex.D2 : Office copy of letter dtd:25.08.2009
Ex.D3 : Endorsement issued by police
Ex.D4 : Copy of complaint dtd:25.08.2009
Ex.D5 : Order dtd:17.08.2009
Ex.D6 : CC of Order in Appeal No.1573/2010
Ex.C1 : FIR in Cr.No.280/2011
Ex.C2 : List of Annexure in Cr.No.315/2010
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
JUDGMENT 18 C.C.18626/2010
13.01.2016.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Cr.P.C. the accused Nos.1 and 2 have been convicted for the offence punishable under Section 138 of Negotiable Instruments Act.
The accused Nos.1 and 2 is sentenced to pay total fine amount of Rs.30,10,000/- (Rupees Thirty lakhs ten thousand only). In default shall under go simple imprisonment for 2 (two) years each.JUDGMENT 19 C.C.18626/2010
Out of the total fine amount a sum of Rs.30,00,000/- (Rupees Thirty lakhs only) is ordered to be paid to the complainant by way of compensation under Section 357 of Cr.P.C. The balance amount of Rs.10,000/- (Rupees Ten thousand only) shall be remitted as fine to the State.
The bail bonds and surety bonds of the accused stand cancelled.
Issue a free copy of the Judgment to the accused forthwith.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.