Bangalore District Court
Sri.Boraiah.M vs Sri.Ayyappa on 14 January, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 14th day of January 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. 19088/2012
Complainant : Sri.Boraiah.M,
S/o. Mariyappa,
Aged about 67 years,
No.23, Block 3,
Jeevan Griha, 24th main,
1st phase, J.P.Nagar,
Bangalore-560078.
(By Sri.S.Basavaraj, Adv.)
Accused : Sri.Ayyappa,
S/o. late Ramanna.T,
No.2, Ashwathanarayana
Thodada Road,
Puttenahalli.
J.P.Nagar 7th phase,
Bangalore-560078.
(By Sri.B.J.Mahesh, Adv.)
Date of Institution : 17.04.2012.
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 : 14.01.2015.
2 C.C.No.19088/2012
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, accused approached him and requested him to lend a sum
of Rs.2 lakhs about 2 ½ years back to meet the urgent domestic
needs of the accused. The complainant on his request and
considering his urgency paid the said amount to the accused.
The accused had also agreed to pay the complainant an interest
at the rate of 2% p.m. The accused had paid the interest as
agreed upon for about 1 year and later on, he discontinued to
pay the accrued interest. On persistent demand by the
complainant, the accused had issued a post dated cheque
bearing No.103980 dated 15.03.2012 for a sum of Rs.2 lakhs
drawn on M/s Bank of Baroda, J.P.Nagar Branch, Bangalore, in
favour of complainant as a part payment towards the loan
amount. As per the request of the accused, the complainant
presented the said cheque for realization through his bankers
M/s Bharath Co-op. Bank Ltd., Jayanagar branch, Bangalore
and the said cheque was dishonoured with an endorsement to
that effect "Opening Balance insufficient" vide memo dated
16.03.2012. Thereafter, the complainant got issued legal notice
dated 19.03.2012 demanding payment of the cheque amount.
The accused was in receipt of the said notice on 22.03.2012.
3 C.C.No.19088/2012
Instead of paying the cheque amount, he replied adopting
untenable contention dated 11.04.2012, but he did not comply
the terms of notice and thus, he has committed an offence
punishable u/s 138 of NI Act and punish the accused by
awarding compensation to the complainant u/s 357 Cr.P.C at
the rate of 2% per month for about 18 months on the filing of
this case in the interest of justice and equity.
3. After presenting this case, 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.
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
himself as PW.1 and got marked Ex.P1 to P10 and this PW.1 has
been fully cross-examined by the accused counsel and thus, the
complainant closed his side evidence.
5. Thereafter, the statement of accused u/s 313 Cr.P.C is
recorded, in which, he totally denied the entire case of the
complainant. In support of the denial of the case of the accused,
4 C.C.No.19088/2012
he too examined himself as DW.1 and got marked Ex.D1 to D3.
This DW.1 has been fully cross-examined by the complainant's
counsel and thus, the accused also closed his side evidence.
6. I have heard the arguments of complainant counsel.
7. On behalf of accused, the learned counsel for the
accused submitted synopsis of his arguments by narrating facts
and circumstances of the case and submitted that, the
complainant failed to prove the alleged guilty of the accused
beyond all reasonable doubt and hence, he prays for acquitting
the accused in accordance with law. In support of his
contention, he relied on the following decisions reported in:
1) 2006(6) SCC 39 (M.S.Narayana Menon alias
Mani vs. State of Kerala and another)
2) 2011 (3) AIR KAR 434 (B.Girish vs. S.Ramaiah)
[
3) 2014 AIR SCW 2158 (John K.Abraham vs. Simon
C.Abraham and another)
8. On the basis of the aforesaid facts and circumstances,
the following points arise for my consideration:
1) Whether the complainant proves that, beyond
all reasonable doubt for repayment of the
loan advanced by the complainant, the
accused issued a cheque bearing No.103980
dated 15.03.2012 for a sum of Rs.2 lakhs
drawn on M/s Bank of Baroda, J.P.Nagar
Branch, Bangalore, the same is dishonoured
due to "Opening Balance insufficient" and
5 C.C.No.19088/2012
inspite of issuance of legal notice, the
accused did not comply to the notice and
thus, he has committed an offence
punishable u/s 138 of N.I.Act?
2) What Order?
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: It is the specific case of the complainant
that, the accused approached him and requested to lend a sum
of Rs.2 lakhs about 2 ½ years back for his urgent domestic
needs and agreed to repay the said amount with interest at the
rate of 2% per month. Accordingly, the complainant had lent
the said amount and accused goes on paying interest as agreed
upto 1 year and thereafter, he did not pay the accrued interest
and after demand of the complainant, issued post dated cheque
as per Ex.P1 without having sufficient balance in his account
and same is dishonoured, but inspite of issuance of legal notice,
the notice duly served to the accused, he did not comply the
notice except issued untenable reply and thus, he has
committed an offence punishable u/s 138 of NI Act and punish
the accused in accordance with law.
6 C.C.No.19088/2012
11. The accused person taken a defence that, at Ex.P6
reply notice he admitted the relationship with the complainant
with respect of loan amount, but he denied that, for repayment
of the loan amount of Rs.2 lakhs, he had issued cheque in
question, the same is dishonoured etc. But, at para 4 of his
reply notice he taken a specific contention that, in the year
2009, the accused taken handloan of Rs.2 lakhs and towards
security of the said amount, he got issued five blank cheques.
After discharge of entire loan amount together with interest on
various dates in the year 2011 by remitting the cash to the
complainant account maintained in the Bank of Baroda,
J.P.Nagar Branch, Bangalore, the accused demanded to return
his blank cheques which were given as security towards the
amount borrowed by him from the complainant, the
complainant instead of returning the blank cheques, he misused
the same and filed this case etc. Against to the contents of reply
notice, the complainant has not given any rejoinder or counter
by admitting or denying the said facts. Except at the time of
cross-examination of PW.1, he has taken a contention that, for
discharge of legal liability, the accused issued cheque in
question, the same is dishonoured etc.
12. In order to prove the case of complainant, the
complainant adduced his oral evidence by way of affidavit as
PW.1, in which he has reiterated the complaint contention and
7 C.C.No.19088/2012
got marked Ex.P1 cheque alleged to be issued by the accused
and identified the signature of the accused as Ex.P1(a). Ex.P2 is
the endorsement issued by the bankers stating that, Ex.P1
cheque is dishonoured due to "Opening Balance insufficient".
This endorsement clearly disclose that, at the time of lending the
loan amount, the complainant insisting the accused to open his
bank account and took the Ex.P1. In support of this
endorsement, the complainant has not examined the concerned
bank Manager to prove the case of complainant. Ex.P3 is the
copy of legal notice. The notice has been sent to the accused as
per Ex.P4 is the postal receipt. The said notice duly served to
the accused as per Ex.P5 postal acknowledgment. After receipt
of legal notice, the accused issued Ex.P6 reply notice. Ex.P7 is
the complaint is under dispute. Further, at the time of cross-
examination of PW.1, in order to show the complainant had paid
loan amount to the accused, got marked Ex.P8 is the letter
issued by the concerned bankers with the caption 'To
whomsoever it may concern' dated 27.10.2014, in which, an
amount of Rs.30,000/- and also Rs.1,25,000/- is credited to the
account of complainant Boraiah. Ex.P9 and P10 are the
passbook pertaining to the complainant to show that, he had
paid the amount and accused had repaid the accrued interest
etc. Accused has denied the entire contention of the
complainant. In support of his contention, the accused counsel
cross-examined the PW.1. In the cross-examination, it is elicited
8 C.C.No.19088/2012
that, he paid loan amount of Rs.2 lakh by way of cash to the
accused consisting the denomination of Rs.500/- in one bundle
and he admitted that, the name of the complainant and other
contents of the cheque are in different ink, but he has stated
that, the amount has been written by the accused himself, but
he denied that, the accused obtained handloan of Rs.2 lakhs
from him, for the security of the said amount, issued cheque in
question etc. Further, in his cross-examination, he admitted
that, in the connected C.C.No.24087/2012, the complainant's
daughter also filed cheque bounce case against this accused and
in this case, there is no entry about interest paid as per the
passbook entry. Further at page No.10 of the cross-examination
of PW.1, the relevant portion is in Kannada reads as follows:
£À£Àß ªÀÄUÀ¼ÀÄ d£ÀªÀj 2008 gÀ°è , £Á£ÀÄ 2010gÀ°è DgÉÆæUÉ ºÀt
PÉÆnÖzÉÝêÉ. DgÉÆæAiÀÄÄ EzÀĪÀgÉ«UÀÆ £À£ÀUÉ ZÉPï ªÀÄÆ®PÀ
£Á®ÄÌ ®PÀëzÀ J¥ÀàvÉÛÊzÀÄ ¸Á«gÀ gÀÆ ºÀtªÀ£ÀÄß PÉÆnÖzÁÝgÉAzÀgÉ ¸Àj.
¸ÀzÀj ºÀt §rØUÉ ªÀiÁvÀæ PÉÆnÖzÁÝgÉAzÀÄ ¸ÁQëAiÀÄÄ ¸ÀévÀB
ºÉüÀÄvÁÛgÉ. §rØ ¯ÉPÀÌ ºÁQzÀ §UÉÎ zÁR¯É £À£Àß §½ EzÉ.
13. On the basis of aforesaid answer given by the
complainant, in support of his contention, he has not produced
any documentary evidence to show that, he paid only interest
towards the principal amount etc. Because, the accused has
denied the case of complainant. Hence, it is the duty of the
complainant to prove his case beyond all reasonable doubt.
But, he failed to do so.
9 C.C.No.19088/2012
14. In support of the denial of the case of accused, the
accused himself examined before this court on oath as DW.1, in
which, he has stated as per his reply notice contents and got
marked Ex.D1 to D3 in order to substantiate that, accused
having remitted the amount to the account of complainant. This
DW.1 has been cross-examined by the complainant counsel. In
his cross-examination, he tried to elicit that, towards the
discharge of legal liability, accused issued cheque in question,
the same is dishonoured etc. Except the denial of the case of
accused, the complainant failed to prove the case beyond all
reasonable doubt.
15. In support of the defence taken by the accused, the
accused counsel submitted synopsis of the arguments, in which,
he narrated both parties facts and circumstances of the case. In
support of his contention, he relied on the following decisions
reported in:
1) 2006(6) SCC 39 (M.S.Narayana Menon alias
Mani vs. State of Kerala and another)
"Court has to presume a negotiable instrument
to be for consideration unless the existence of
consideration is disproved - That is unless on
consideration of matter before it the court either
believes that the consideration does not exist or
considers the non-existence of the consideration
so probable that a prudent man ought, under
the circumstances of the particular case, to act
upon the supposition that the consideration
does not exist."
2) 2011 (3) AIR KAR 434 (B.Girish vs. S.Ramaiah)
10 C.C.No.19088/2012
""Presumption under Seciton 118(a) of the
Negotiable Instruments Act is rebuttable-
Defence of accused that cheque was not issued
for discharge of any debt or liability-Admittedly
complainant had no financial capacity to pay
Rs.50,000/- nor he had any savings-No
contemporary documents have come into
existence-Absence f any such documentary
evidence would create great amount of doubt
about genuineness of transaction"
3) 2014 AIR SCW 2158 (John K.Abraham vs. Simon
C.Abraham and another)
"Complainant is not aware of the date when loan
amount was advanced by him, who wrote the
cheque, when exactly and where exactly the
transaction took place, hence the accused is
acquitted."
16. On the basis of aforesaid decisions coupled with the
defence taken by the accused, the accused given rebuttable
evidence to the case of complainant. The complainant failed to
prove the alleged guilty of the accused beyond all reasonable
doubt. Hence, case of complainant creates doubtful, whether
accused issued cheque in question for discharge of legal liability.
Under the circumstances, the accused is entitled for acquittal.
Accordingly, I answer point No.1 in the Negative.
17. 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 from the alleged offence punishable u/s 138 of N.I.Act.
11 C.C.No.19088/2012Accused is set at liberty and his 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 14th day of January 2014) (NAGARAJEGOWDA.D) XXII Addl. Chief Metropolitan Magistrate, Bangalore City.
ANNEXURE Witnesses examined for the Complainant:
PW.1 Boraiah.M Witness examined for the accused:
DW.1 Ayyappa 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 Postal receipt Ex.P5 Acknowledgment Ex.P6 Reply notice Ex.P7 Complaint Ex.P8 To whomsoever it may concern certificate Ex.P9&10 Passbooks List of Documents marked for the accused:
Ex.D1to3 Bank challans XXII ACMM, Bangalore.