Bangalore District Court
Sri. R. Veeraswamy Naidu vs Sri. T. Puttaswamy Gowda on 2 February, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 2nd day of February 2015
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
Case No. : C.C No. 13235/2012
Complainant : Sri. R. Veeraswamy Naidu,
S/o. Late. R.C.Naidu,
Aged about 65 years,
R/at No.35/1, 28th Main,
Murugendra Raju Layout,
Sarakki Kere, 6th Phase,
J.P.Nagara, Bangalore.
(By Sri. B.A. Srinivasa, Adv.)
Accused : Sri. T. Puttaswamy Gowda,
S/o. Thimmegowda,
R/at. No. 37/4/23,
II Main road,
Thimmenahalli,
Govindaraja Nagara,
Bangalore.040.
Also working at
T. Puttaswamy Gowda,
Special Head Assistant,
Personal Department,
ThePrinters(Mysore)Pvt.Ltd.
No.75, M.G.Road,
BANGALORE-001.
(By Lingaraju.C. Adv.)
2 C.C.No.13235/2012
Date of Institution : 26/3/2012
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is Acquitted.
Date of Order : 02.02.2015.
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.
2. As per Ex.P7 complaint, the complainant contended
that, on 15/10/2011 accused herein borrowed a sum of Rs.
13,00,000/- to meet his urgent problems by executing an On-
Demand-Promissory note and consideration receipt agreeing to
repay the said sum within three months together with interest at
the rate of 1.75% per month. After lapse of stipulated period of
time when the complainant approached the accused for
repayment of said hand loan amount, to that effect accused
issued a cheque bearing No.286919 dated 14.02.2012 for a sum
of Rs.13 lakhs drawn on Karnataka Bank Ltd., Jayanagara 4th
Block, Bangalore in favour of the complainant and assured the
complainant, on presentation said cheque for clearance same
3 C.C.No.13235/2012
will be honoured and further assured that he will pay interest
within a short period of time. As per the assurance of accused,
the complainant presented the said cheque for clearance
through his banker Andhra Bank, Puttenahalli Branch,
Bangalore, for encashment. But the said cheque came to be
dishonoured and returned with Banker endorsement dt:
15/2/2012 'Funds insufficient'. Thereafterwards, the
complainant got issued legal notice to the accused through his
advocate on 18/2/2012 demanding the accused to repay the
hand loan amount within 15 days from the date of receipt of the
notice. The notice sent by RPAD to both addresses of the
accused were duly served. For that the accused gave evasive
reply on 15/3/2012, but he did not comply the notice and thus
he has committed an offence punishable u/s 138 of NI Act and
punish the accused in accordance with law by awarding
compensation as per Sec. 357 of Cr.P.C. to the complainant in
the interest of justice and equity.
3. After presenting this case in PCR, this court has taken
cognizance of the offence and after recording the sworn
statement of the complainant's side, this court registered the
criminal case against the accused alleging that, he has
committed an offence punishable u/s 138 of N.I.Act. Summons
issued to the accused. The same is served upon the accused.
4 C.C.No.13235/2012
The accused appeared through his counsel, enlarged on bail and
he denied the entire case of the complainant at the time of
recording his plea of accusation and case to be tried.
4. In support of the case of the complainant, he examined
as PW.1 and got marked Ex.P1 to P7 and examined 2 witnesses
as PW-2 and PW-3. This PW.1 to 3 have been fully cross-
examined by the accused counsel and thus, the complainant
closed his side evidence.
5. Thereafterwards, the accused person examined u/s 313
of Cr.P.C, in which, he totally denied the case of the complainant
and in support of his denial, he has adduced his oral evidence
as DW.1 and at the time of cross-examination of PW-1 got
marked Ex.D-1 and in his chief examination marked Ex. D-2 to
D-4 and this DW.1 has not been cross-examined by the
complainant counsel in spite of opportunity has been given to
complainant and his counsel, they remained absent before this
court. Hence, the cross-examination of DW-1 is taken as Nil.
6. I have heard the arguments of complainant counsel and
accused counsel on merits.
7. On the basis of the aforesaid facts and circumstances,
the following points arise for my consideration:
5 C.C.No.13235/2012
1) Whether the complainant proves beyond all
reasonable doubt that, for repayment of the
hand loan to the complainant, the accused
person issued a cheque bearing No.286919
dated;14/2/2012 for a sum of Rs.13 lakhs
drawn on Karnataka Bank Limited,
Jayanagara 4th Block Branch, in favour of
complainant with the assurance to present
the cheque for collection, accordingly, the
complainant presented the said cheque for
collection to his banker, but same is
dishonoured due to insufficient funds in the
account of accused, in spite of issuance of
legal notice to the accused, he did not
comply the notice and thus, he has
committed an offence punishable u/s 138 of
N.I.Act?
2) What Order/Sentence?
9. My answer to the above points are as follows:
1) In the Negative,
2) As per final Order,
For the following:
REASONS
10. POINT NO.1: In support of the case of the
complainant as per complaint the accused borrowed a sum of
Rs. 13,00,000/- for his urgent financial necessities and
executed an On-Demand-Promissory note and consideration
receipt agreeing to repay the alleged sum within three months
together with interest at the rate of 1.75% per month. But he
has not produced any on demand pro-note with consideration
receipt to show that the accused has executed the said
6 C.C.No.13235/2012
documents in his favour. In support of the contention taken by
the complainant, he adduced oral evidence as PW-1 filed by way
of affidavit in which he reiterated the complaint contention and
got marked Ex.P-1, cheque issued by the accused and identified
the signature of the accused as Ex.P-1.a. The issuance of Ex.P1
cheque towards the discharge of his legal liability has been
disputed by the accused, stating that the alleged cheque has
been issued only for security to the amount obtained from the
complainant in the year 2010 a sum of Rs. 2 lakhs and after
repayment of said amount with interest the complainant instead
of returning the security cheque, but he himself filled up the
cheque and presented to the Bank and got it dishonoured and
filed this case etc., In this aspect, on careful perusal of the
contents of the cheque and the signature found on the cheque
are in different ink and the alleged contents of the cheque might
have been filled up by complainant at the time of presenting the
cheque into the Bank. Further got marked Ex.P2 the
endorsement issued by the Banker stating that the Ex.P1
cheque dishonoured due to Insufficient funds. Ex.P3 is the copy
of legal notice duly served to the accused as per Ex.P-4 and P5
are the postal acknowledgements, after receipt of the notice the
accused issued reply notice from his counsel at Ex.P-6 in which
he admitted that he knows the complainant, but he denied that
he obtain the loan amount of Rs. 13,00,000/- from the
7 C.C.No.13235/2012
complainant and agreed to repay the same with interest and for
discharge of the said amount, he issued the Ex.P1 cheque etc.,
Except he contending that in the year 2010 he obtained loan
amount of Rs. 2 lakhs from the complainant and at that time
the complainant got the cheque in question as in blank, except
signature of this accused and also he took on demand pro-note,
the complainant filled up the alleged cheque in question and got
it dishonoured and filed this false case etc., Against the reply
notice contents the complainant has not issued any rejoinder or
counter by admitting or denying the facts stated in the reply
notice except he has stated that the accused issued evasive reply
to the notice issued by the complainant. On the basis of the
aforesaid facts and circumstances, whether this complainant
has approached this court with clean hands or not, further got
marked Ex. P7 is the complaint is under dispute.
11. Though the accused has admitted Ex.P1 cheque and
signature found on the cheque belongs to himself, but in order
to prove the alleged cheque and signature found on the cheque
is belongs to the accused, the complainant examined PW-2
Divya Jyothi and PW-3 Gopal Raju. This PW-2 is none other
than the daughter of the complainant and PW-3 is the friend of
the complainant. In their chief examinations filed by way of
affidavit, they have supported the case of the complainant
stating that the complainant advanced loan amount of Rs. 13
8 C.C.No.13235/2012
lakhs to the accused and they were very much present at the
time of money transaction etc., In the cross-examination PW-2
was admitted that she married in the year 1999 and after
marriage she is residing with her husband's house and her
father has not talked about interest with accused and the
alleged amount has been given to accused by way of cash
containing Rs. 500/- and 1000/- face value notes and she do
not know how many bundles of amount has been given and she
do not know whether on demand promissory note has got
written on white paper or printed form and she denied that her
father himself is the borrower from the Bank. Hence, the
question of he lending such huge amount of Rs. 13 lakhs to
accused does not arise. Like wise in the cross-examination of
PW-3, he admitted that himself and accused were working in the
same department and at the time of alleged transaction, he
retired from the service and he denied that after retirement from
his service he has no contact with this accused and also he
denied that in order to help the complainant who is his friend,
he is supporting the case of complainant. Like wise in the cross-
examination of PW-1 the accused counsel elicited that the
alleged amount has comes to complainant as he sold one of his
site situated at Telecom layout and at the time of obtaining loan
amount, the accused executed Promissory note and the said
amount comes to complainant out of the amount received from
9 C.C.No.13235/2012
the Lessee of one of the house property and the said amount
comes to this complainant. But in support of his contention he
has not produced any lease deed and he has not produced any
promissory note to show that the accused executed promissory
note at the time of obtaining loan amount from him and the said
promissory note one Gopal and his daughter DivyaJyothi are the
witnesses, but these things are not elicited from the mouth of
PW-2 and 3 and no documents have been produced to show that
he has executed on demand pro-note with consideration receipt
for obtaining loan amount borrowed from the complainant.
Hence, the case of complainant creates doubt whether he really
lent huge amount of Rs. 13 lakhs to the accused .
12. In support of denial of case of accused, accused
examined himself before this court on oath as DW-1. He
adduced as per contents of Ex. P-6 reply notice. In spite of
opportunity has been given to the complainant counsel, the
complainant counsel did not chose to cross-examine DW-1.
Hence cross-examination of DW-1 is taken as Nil. Further in
order to show the complainant obtained interest from this
accused for the amount borrowed from the complainant a sum
of Rs. 20,000/- got marked as Ex.D-1, the slip for having paid
interest amount to the complainant. The written contents at
Ex.D-1 as admitted by the complainant same belongs to his
hand writing. Further in order to show that the accused is a
10 C.C.No.13235/2012
salaried employee for that he got marked Ex.D-2 to D-4 are the
Pay slips of the year 2011, as per these pay slips the accused is
drawing net salary of Rs. 14,445/-, 15075/- and 14,570/-. In
view of the aforesaid documentary evidence, the accused has
given rebuttal evidence to the case of complainant. The
complainant has failed to prove the alleged guilt of the accused
beyond all reasonable doubt. Hence, the accused is entitled for
acquittal. Accordingly, I answer point No.1 in Negative.
13. POINT NO.2: For the above said reasons, I proceed to
pass the following:
ORDER
Acting u/s 255(1) of Cr.P.C., the accused is acquitted of the alleged offence punishable u/s 138 of N.I.Act.
The accused was awarded compensation of Rs.25,000/- from the complainant for the false case filed against him and same shall be paid to the accused within a period of 30 days from the date of order.
Accused is set at liberty and his bail bond and surety bond shall stand cancelled.
11 C.C.No.13235/2012(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court on this the 2nd day of February 2015) (NAGARAJEGOWDA.D) XXII Addl. Chief Metropolitan Magistrate, Bangalore City.
*** ANNEXURE Witnesses examined for the Complainant:
PW.1 R. Veeraswamy Naidu.
PW.2 Smt. DivyaJyothi.
PW.3 Gopal Raju.
Witness examined for the accused:
DW.1 Puttaswamy Gowda List of Documents marked for the Complainant:
Ex.P1 Cheque Ex.P1(a) Signature of accused Ex.P2 Endorsement Ex.P3 Copy of legal notice Ex.P4 & P5 Postal Acknowledgments Ex.P6 Reply notice.
Ex.P7 Complaint List of Documents marked for the accused:
Ex.D1 Chit.
Ex.D2
To D4: 3 Pay slips.
XXII ACMM, Bangalore.
12 C.C.No.13235/2012
2/2/2015
Com:
Ac:
For judgment:
Judgment pronounced in open court vide separate Judgment. Operative portion reads as :
ORDER Acting u/s 255(1) of Cr.P.C., the accused is acquitted of the alleged offence punishable u/s 138 of N.I.Act.
The accused was awarded compensation of Rs.25,000/- from the complainant for the false case filed against him and same shall be paid to the accused within a period of 30 days from the date of order.
Accused is set at liberty and his bail bond and surety bond shall stand cancelled.
XXII ACMM, Bangalore.