Bangalore District Court
In The First Week Of March 2012 For ... vs Counsel. He Denies Specifically That on 18 December, 2015
IN THE COURT OF THE XXXIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE CITY
DATED THIS THE 18th DAY OF DECEMBER, 2015
PRESENT: Sri K. RAJESH KARNAM, B.Sc., LL.B.
1. Sl. No. of the Case : C.C.No.27306/2012
2. The date of commission of : 02-08-2012
offence
3. Name of the Complainant : Sri. K.S.Gurumurthy
S/o. Siriyappa
Aged about 32 years
Residing at C/o No.3,
Venkatachalapathy,
Behind Bhagini, Hoodi,
Mahadevapura Post,
Bangalore - 560 048.
(By Sri.M.Srinivas, Adv.,)
4. Name of the Accused : Sri. K.R.Muniraju
S/o. Ramanna
Aged about 40 years
Residing at Bileshivale Village,
Doddagubbi Post,
K.R.Puram Taluk,
Bangalore East Taluk.
(By Sri.Babu, Adv.,)
5. The offence complained of : U/s.138 of The Negotiable
or proved Instruments Act
6. Plea of the Accused : Pleaded not guilty
7. Final order : Accused is Convicted
2 C.C.NO.27306/2012
SCCH - 5
8. Date of such order : 18.12.2015
JUDGMENT
This Complaint is filed by the Complainant against Accused under Section 200 of Cr.P.C. R/w Section 138 of The Negotiable Instruments Act, 1881.
2. The case of Complainant is:
The Complainant submits that, Accused approached the Complainant in the first week of March 2012 for financial help of Rs.2,00,000/-. The Accused had agreed to repay the same within July 2012. After the period, the Accused did not repaid the amount. Accordingly, Complainant approached the Accused to pay the hand loan. Accordingly, Accused issued cheque bearing No.901728 for an amount of Rs.2,00,000/- dated 31.07.2012 drawn on Syndicate Bank, Banasawadi Branch, Bangalore. The cheque was presented by the Complainant through his State Bank of Mysore Account, in Hoodi Branch, Hoodi, Bangalore, which was returned as "Funds Insufficient" on 02.08.2012. Immediately, Complainant reported the same through legal notice on 09.08.2012, which came to be refused by the Accused. Accordingly, Complainant is forced to come up with this complaint.3 C.C.NO.27306/2012
SCCH - 5
3. The Complainant pleads that, the cause of action arose on 31.07.2012, the date of cheque and subsequently intimation received on 02.08.2012, 09.08.2012 the date of legal notice and 16.08.2012 date of returning of unclaimed postal cover and acknowledgment on 23.08.2012. Accordingly, seeks to punish the Accused.
4. On service of summons the Accused appeared through counsel. On appearance Accused plea is recorded. The Complainant has led his evidence by way of affidavit. As per Sec.313 of Cr.P.C. statement of accused is recorded.
5. At trial, Complainant got examined himself as PW-1, who has placed Ex.P.1 to Ex.P.8. In defence, Accused got himself examined as DW-1 and another witness Manjunath as DW-2.
6. On hearing both sides, case is reserved for judgment.
7. On the basis of material on record, the points for consideration are:
1. Whether Complainant proves that Accused issued cheque bearing No.901728 dated 31.07.2012 for Rs.2,00,000/- in lieu of repayment of hand loan and the cheque came to be dishonored, obliging the Complainant to come up with this case?
2. What order?4 C.C.NO.27306/2012
SCCH - 5
8. My findings on the above points are as follows:
Point No.1: Affirmative Point No.2: As per final order for the following REASONS
9. Point No.1: The complaint averments are as follows:
The Complainant submits that, Accused approached the Complainant in the first week of March 2012 for financial help of Rs.2,00,000/-. The Accused had agreed to repay the same within July 2012. After the period the Accused did not repaid the amount. Accordingly, Complainant approached the Accused to pay the hand loan. Accordingly, Accused issued cheque bearing No.901728 for an amount of Rs.2,00,000/- dated 31.07.2012 drawn on Syndicate Bank, Banasawadi Branch, Bangalore. The cheque was presented by the Complainant through his SBM Account, in Hoodi Branch, Hoodi, Bangalore, which was returned as "Funds Insufficient" on 02.08.2012. Immediately, Complainant reported the same through legal notice on 09.08.2012, which came to be refused by the Accused.
10. The Complainant in his affidavit evidence has reiterated the same facts. In his cross-examination he deposes that, he is resident of Hoodi Village, doing Real Estate Business 5 C.C.NO.27306/2012 SCCH - 5 and he has studied up to SSLC. He denies the suggestions that, he has taken the cheque of the Accused for Real Estate Business as a security. He denies the suggestions made by the learned Accused counsel. He denies specifically that, Accused had paid the amount by way of cash to him near his shop. He denies the suggestions that, cheque has been given to one Shaik Shivalli and this Complainant is not known to the Accused. He denies the suggestion that, Accused is not doing finance business. This Complainant deposes that, he had chit business as he got 3 lakhs from chit, he has advanced to the Accused. He denies that, he is doing Real Estate Business along with Shaik Shivalli. He pleads ignorance about use of ink with regard to signature and contents. He denies other suggestions.
11. In the cross-examination of the Accused he has specifically denied knowing the Complainant and he had given one cheque to Shaik Shivalli as a security, one Manju was also present at that time. He produced one receipt for the same as Ex.D.1. He deposes that, he has repaid the amount within six months. He denies Complainant never does Real Estate Business. In his cross-examination he denies that, he has not got any amount from Shaik Shivalli and he is not known to him. He 6 C.C.NO.27306/2012 SCCH - 5 denies the other suggestions made by the learned Complainant counsel.
12. The Accused has got examined DW-2, who deposes that, cheque for Rs.1,00,000/- is given to Shaik Shivalli in his presence. In his cross-examination he pleads ignorance about the Complainant but, admits he had obtained amount from Shaik Shivalli and Accused has also taken similarly. He deposes that, they have given cheque and agreement to that effect. He does not know of which Bank the cheque was drawn and on what date. He denies other suggestions made by the learned Complainant counsel.
13. On going through the materials on record, on considering the plea of the Complainant and the Accused, postal acknowledgment discloses 'party refused' to receive the same. If at all notice has been received by the Accused, he could have replied about non-borrowing of any amount from the present Complainant. Under these circumstances, the defence set up by the Accused against presumption available under Sec.118 of the Negotiable Instruments Act is not rebutted, is my firm view. Accordingly, as per provisions of Negotiable Instrument Act, when a cheque duly signed is handed over to any person, it is backed 7 C.C.NO.27306/2012 SCCH - 5 by consideration is a settled law. Under these circumstances, the Complainant has placed sufficient materials to prove that, Accused had issued cheque with regard to legally recovable debt. The plea of the Accused that, he does not know the Complainant and DW-2 deposing before this Court that, they do not know the complainant, but they have transacted only with Shaik Shivalli cannot be considered as a specific defence to throw burden on the Complainant to that effect. Accordingly the point for consideration is answered in the affirmative.
14. Point No.2: In view of discussion on Point No.1, I proceed to pass the following:
ORDER Accused is found guilty for the offence punishable U/s.138 of The Negotiable Instruments Act.
Accused is sentenced to pay fine of Rs.4,00,000/- (Rupees Four Lakhs Only) and shall undergo simple imprisonment for a period of two years from the date of this order and in default of payment of fine, he shall further undergo simple imprisonment for a period of 3 months.
The bail bond and surety bond of Accused shall stand cancelled.
8 C.C.NO.27306/2012
SCCH - 5 Out of the amount of sentence, Rs.2,00,000/- (Rupees Two Lakhs Only) is to be paid to the Complainant on deposit.
(Dictated to the stenographer, transcribed thereof is corrected and then pronounced by me in open court on this the 18th day of December 2015) (K. RAJESH KARNAM) XXXIII Addl.C.M.M.& VIII ASCJ, Bangalore.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW-1 : Sri. K.S. Gurumurthy WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
DW-1 : Sri. Muniraju K.R. DW-2 : Sri. Manjunath
DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P.1 : Cheque Ex.P.1(a) : Signature Ex.P.2 : Return Memo Ex.P.3 : Legal Notice Ex.P.4 ` Postal Receipts
Ex.P.5 & ` Returned Postal Covers (2 in Nos.) Ex.P.6 Ex.P.7 : Legal Notice Ex.P.8 : Legal Notice DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
-NIL-
(K. RAJESH KARNAM) XXXIII Addl.C.M.M.& VIII ASCJ, Bangalore.