Bangalore District Court
Sri B.Nagaraj vs Mrs. Marry Rita Priya on 17 February, 2016
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 17th day of February, 2016,
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
C.C.No. 15322/2015
Complainant : Sri B.Nagaraj,
Son of late Bandaiah,
Aged about 50 years,
Residing at No. 479,
Chandrappa Road,
Kamala nagar,
Bangalore - 560 079.
(By Sri.Rajanna .Adv.)
V/s.
Accused : Mrs. Marry Rita Priya,
Wife of Ambrose,
Aged about 35 years,
R/at No. 163,
28th Main, 30th Cross,
B.T.B. Area, Tilak nagar,
Bangalore - 560 041.
(By Sri ,K.Vijaykumar, Adv.)
Date of Institution 15-6-2015
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
Final Order Accused is Acquitted.
2 C.C.No.15322/2015
Date of Order : 17 .02.2016.
The complainant filed the private complaint u/s 200 of
Cr.P.C alleging that, the accused person has committed an offence
punishable u/s 138 of N.I.Act.
REASONS
The brief facts of the complainant case is as follows:-
2. The complainant submits that the accused is a family
friend of the complainant for the past five years. Due to friendship
the accused approached the complainant in the first week of
November, 2014 and requested for financial assistance for a sum
of Rs.5,00,000/- for the purpose of her business and other legal
necessities. Considering the financial problems of the accused,
the complainant gave a sum of Rs. 5,00,000/- to the accused on
10-11-2014 by way of cash. The accused agreed to return the said
amount within three months and in this connection, the accused
has issued a post dated cheque bearing No. 265155 dated 27-1-
2015 for Rs.5,00,000/- drawn on State Bank of Mysore, 9th block,
Jayanagar branch Bangalore . During the 3rd week of January,
2015 the complainant approached and demanded the accused for
the repayment of the above said hand loan amount for that,
3 C.C.No.15322/2015
accused requested the complainant to grant another three
months to enable her to mobilize the funds. For that complainant
obliged . Again during 3rd week of April, 2015 the complainant
approached and demanded the accused for the repayment of the
said loan amount. As per the assurance of the accused, the
complainant presented the said cheque through his banker State
Bank of Mysore, Basaveshwara Nagar branch, Bangalore . But
the said cheque returned with an endorsement "Funds
insufficient" vide memo dated 25-4-2015. Inspite of several
requests and demand the accused did not pay the amount
covered under the cheque . Thereafterwards, the complainant got
issued legal notice on 04-05-2015 to the accused, calling upon
the accused to pay the cheque amount . The notice sent by RPAD
was served to the accused. Inspite of receipt of legal notice, she
did not replied or complied the notice and thus accused
committed the offence punishable u/s. 138 of NI Act and punish
the accused in accordance with law and to award suitable
compensation as per Sec.357 of Cr.P.C., in the interest of justice
and equity.
3. The accused appeared before this court and contest this
case by denying the entire case of complainant at the time of
recording of Plea of Accusation . In order to prove the case of
4 C.C.No.15322/2015
complainant, he adduced his oral evidence as PW-1 by way of
affidavit and got marked Ex.P1 to Ex.P7 and this PW-1 has been
fully cross examined by the accused counsel and thus
complainant closed his side evidence.
4. There afterwards, the accused examined u/s.313 of
Cr.P.C. in which, she totally denied the entire case of complainant
She in support of her denial, lead her oral evidence as DW-1 on
Oath and examined DW-2 and 3 on behalf of the accused and got
marked Ex.D 1 to Ex.D6 and through DW-2 got marked Ex.D7
and these DW-1 to 3 have been fully cross-examined by the
complainant counsel and thus closed her side defence evidence.
5. I have heard the arguments of Ln.counsel for
complainant on merit. In support of his contention, he relied on
the decision reported in 2015(1) KCCR 235. Accordingly, he prays
for convicting the accused in accordance with law.
6. In support of the case of accused, the Ln.counsel for
accused submitted written arguments by narrating the facts and
circumstances of the case and stated that the accused had given
rebuttal evidence to the case of complainant. Hence, prays for
acquittal of the accused in accordance with law.
5 C.C.No.15322/2015
7. In order to prove the case of complainant, the
complainant adduced his oral evidence as PW-1 filed by way of
affidavit. In which, he reiterated complaint contention and got
marked Ex.P1 cheque alleged to be issued by the accused and
identified the signature of the accused as per Ex.P1(a). This
issuance of cheque in favour of complainant for discharge of legal
liability has been disputed by the accused and as per this cheque
amount of Rs.Five lakhs i.e. "5" has been over written. Though
there is signature of the accused below the correction but as per
the bankers rule, the correction can be made only to the extent of
the date but other written contents should not be allowed etc.. For
that, the complainant has not produced any documentary
evidence . Further got marked Ex.P2 is an endorsement issued by
the bankers stating that Ex.P1 cheque was dishonoured due to
"Funds insufficient". Ex.P3 is the copy of legal notice . This
notice does not contain the signature of the complainant except
his counsel . Ex.P4 is the postal acknowledgement to show the
legal notice sent to the accused by RPAD was duly served . Ex.P5
and Ex.P6 are Income Tax returns for the Assessment Year, 2012-
2013, 2013-14 stands in the name of complainant to show that,
he is an Income Tax Assessee. But the loan amount given to the
accused is not shown in his I.T,Returns. Ex.P7 is the statement of
6 C.C.No.15322/2015
account stands in the name of complainant pertaining to S.B.M.
to show that complainant had sufficient amount with him but as
per this statement of account during the year, 2013-2015 an
amount of Rs.78,878/- is maintained by the complainant and in
this statement there is no transaction of more than Rs. Five
lakhs . Hence the case of complainant prima facie create doubtful
whether he paid huge amount to this accused etc..
8. The accused has denied the entire case of complainant .
In support of her denial, she lead her evidence as DW-1 on Oath .
In which she has stated that, she came to know about this
complainant during the year, 2012 and he used to visit to this
accused with her made insurance policies. Accordingly, she has
participated in the insurance but this complainant has not given
an Bond for making insurance with him and he issued three
receipts for taking installment amount but subsequently , he has
not issued any receipt for having taken installment and later he
obtained blank cheque from this accused and filled up and filed
this case etc.. and she has not received any legal notice from the
complainant and signature found on Ex.P4 postal
acknowledgement is not belongs to her and as per the addresses
stated in the postal acknowledgement at that time, she has
7 C.C.No.15322/2015
vacated her house. Hence, the legal notice is not duly served to
the accused etc..
9. In support of her contention, she also examined DW-2
Selvi Juliat . She is the President of Indiraji Mahila Sangha. She
has also supported the case of accused . She is also one of the
Member of LIC with the complainant and this complainant made
several policies in their Sangha and all of them were cheated by
this complainant for that, they have lodged complaint to the police
but the police without proper investigation submitted "B' Report
against this complainant and got marked certified copy of the "B"
Report at Ex.D7 and also examined DW-3 Stella Vasanthi , who
is a Cleaner at Church . She too also supported the case of
accused. She has stated that complainant has made an Insurance
policy with the Members of the Society and he obtained blank
signed cheque from various persons and misused the same etc..
10. In support of the defence taken by the accused, in order
to show this complainant had issued a receipt for having taken
the Insurance policy amount got marked Ex.D1 to 3 are the
receipts stands in the name of PACL India Ltd., are stands in the
name of accused. Ex.D4 is the Rental Agreement dated 1-10-2014
taken between one Ganesh Bandaru with the Amrose .D. to show
8 C.C.No.15322/2015
that at the time of issuance of legal notice, this accused is not at
all residing in the address stated in the legal notice. Ex.D-5 is the
Prajavai News paper cutting to show that the complainant i.e.
PACL made a cheat against several persons reported in 13-1-2014
are clearly support the defence taken by the accused. Ex.D6 is the
S.B.M. Bank issued letter when the accused opened her bank
account. The complainant had made several cheating cases
against several persons. DW1 to 3 have been cross-examined by
the complainant counsel . In the cross-examination complainant
counsel tried to elicited that the accused obtained loan from the
complainant and for discharge of the said amount, issued Ex.P1
cheque and the same is dishonoured. Except the total denial of
contention of accused, the complainant failed to prove that for
discharge of legal liability , the accused issued cheque in question
, the same was dishonoured etc.
11. As per the defence taken by the accused, accused
counsel cross-examined the PW-1. In the cross-examination , he
tried to elicited as per the chief examination of DW 1 to 3 . These
things have been denied by the complainant and at the end of
cross-examination at page No.8, he has stated that except this
accused there are six persons in their society have made an
Insurance policies with him and he advanced loan amount to this
9 C.C.No.15322/2015
accused for the purpose of business and he do not know the exact
business and the amount given to this accused is not known by
her husband etc.. These things are clearly support the case of
accused to show that the complainant made use of blank cheque
belongs to this accused and filed this case etc..
12. In support of the case of complainant, the learned
counsel for the complainant relied on the decision reported in
2015(1) KCCR 235 ( Lale Patel Vs. Sharanbasappa) of Hon'ble
High Court of Karnataka , Circuit Bench at Gulbarga . Wherein it
is held that" U/s. 138 of NI Act to the effect that the cheque is
issued towards discharge , in whole or in part, of any debt or
liability etc.. Hence, the complainant can maintain the offence
against the accused for the offence punishable u/s.138 of NI Act.
But in this case, the complainant failed to make out case against
the accused. Hence whatever the defence taken by the
complainant will not support the case of complainant to show that
the accused issued cheque in question for discharge of legal
liability etc..
13. In support of the case of accused, the learned counsel
for the accused submitted written arguments . In which he has
stated that cheque in question was given on 10-11-2014 but the
10 C.C.No.15322/2015
true fact is the accused's bank account itself was opened on 26-
11-2014. As per Ex.P6 To whomsoever It may Concern issued by
the bankers. Hence, the complainant has not approached this
court with clean hands. Hence, he prays for acquittal of the
accused in accordance with law.
14. On the basis of the aforesaid facts and circumstances of
the case , the complainant failed to prove the alleged guilt of the
accused beyond all reasonable doubt. The accused had given
rebuttal evidence to the case of complainant by examining herself
and also examined two witnesses and also got marked
documentary evidence to support the case of accused to show
that the complainant had misused the alleged cheque in question
without establishing that the accused has issued cheque in
question for discharge of legal liability etc... The case of
complainant create doubtful . Hence, the benefit of doubt goes to
the accused. Hence, accused is entitled for acquittal.
Accordingly, I pass the following:
ORDER
Acting u/s 265 of Cr.P.C., the accused is acquitted from the alleged offence punishable u/s 138 of N.I.Act.
11 C.C.No.15322/2015Accused is set at liberty. Her bail bond and surety bond shall stand cancelled.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 17th day of February, 2016) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
ANNEXURE Witnesses examined for the Complainant:
PW.1 : B.Nagaraj Witness examined for the accused:
DW-1 : Marry Rita priya DW-2 Selvi juliat DW-3 Stella vasanthi
List of Documents marked for the Complainant:
Ex.P1 : Cheque
Ex.P1a : Signature of the accused
Ex.P2 : Endorsement
Ex.P3 : Legal notice
12 C.C.No.15322/2015
Ex.P4 : Postal acknowledgement
Ex.P5 & 6 : Income tax returns.
Ex.P7 : Statement of account
List of Documents marked for the accused:
Ex.D1 to 3 : Receipts
Ex.D4 Rental agreement.
Ex.D5 Newspaper cutting
Ex.D6 Certificate given by the SBM Bank
Ex.D7 copy of "B" report
XXII ACMM, Bangalore.