Bangalore District Court
Sri.Vasanth Kumar vs Sri.Manoj V on 6 April, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 6th day of April 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.5249/2012
Complainant : Sri.Vasanth Kumar,
S/o. L.Jayapalan.
Aged about 36 years,
R/at. No.6, 5th Cross,
Michealpalya,
Indiranagar, 80 ft, Road,
Bangalore-38
(By Sri.Ravi B Naik, Adv.)
Accused : Sri.Manoj V,
S/o. Venkateswamy,
No.2006,' Drops Total spirits'
Next to Vodafone,
100 ft, Road, Indiranagar,
Bangalore-38.
Also carries business at
No.2, Rayhana Complex,
Opp. Corporation Bank,
R.M.V. Extension,
New BEL Road,
Bangalore-94.
(By Sri.Harish H.V, Adv.)
Date of Institution : 26.09.2011
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.5249/2012
Date of Order : 06.04.2015
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.P6 complaint, the complainant contended
that, the accused is the childhood friend of the complainant and
he well acquainted with the complainant. Presently the accused
is running 4 to 5 wine stores in Bangalore and Mysore. In the
year 2006 he was carrying garment business and he was
running under loss facing financial crisis. Hence he approached
the complainant for financial assistance accordingly he obtained
loan for sum of Rs.10,00,000/- by way of cash from the
complainant by borrowing loan from the ICICI Bank, Citi Bank
and ABN bank. The accused agreeing to return the said sum
within a period of 2 months. In the year 2010 the complainant
has learnt that the accused has established several wine stores
and earning well and as such that he approached the accused
requesting to the said amount. In the month of February 2011
the accused called the complainant to return the money and on
16.02.2013 he has issued a cheque bearing No.060834 drawn
on IDBI Bank, Mallesharam Branch, Bangalore for sum of Rs.
7,00,000/- towards part payment and requested further time to
return the balance amount of Rs.3,00,000/-. The complainant
3 C.C.No.5249/2012
presented the said cheque for encashment through his banker
Deutsche Bank, M.G.Road, Bangalore on 19.02.2011 the said
cheque is dishonoured due to "Insufficient funds". On the
request of accused he re-present the said cheque in the month
of March 2011. Accordingly he presented the said cheque but
the same is dishonoured once again the accused requested to
present the said cheque in the second week of July 2011 and
after presentation of the said cheque the same is dishonoured
on 12.07.2011 due to " Insufficient Funds". Thereafterwards the
complainant got issued legal notice to the accused for repayment
of cheque amount with balance amount. The said legal notice
dated 08.08.2011 is duly served to the accused but he did not
choosed to reply or comply to the notice and thus he has
committed an offence punishable u/s.138 of N.I Act and punish
the accused in accordance with law.
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 C.C.No.5249/2012
4. In support of the case of the complainant, he examined
himself as PW.1 and got marked Ex.P1 to P6 and this PWs.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,
he too examined himself as DW.1 on oath and this, DW.1 has
been fully cross-examined by the complainant's counsel and
thus, the accused also closed his side evidence.
6. Inspite of sufficient opportunity has been given to the
complainant and his counsel they remained absent before this
court and fails to address the arguments on merits. Hence their
side arguments taken as Nil
7. I have heard the arguments of accused counsel and in
support of his contention he relied on the following Decision
reported in No. 1 to 14 as follows.
1. (2008) 4 Supreme Court Cases 54(Krishna Janardhan
Bhar V/s. Dattatraya G. Hegde).
2.2006 AIR SCW 2757 ( D.Vinod Shivappa V Nanda
Bellappa)
3. ILR 2007 Karnataka 2709
4. 2008 AIR SCW 738
5. 2009 (1) DCR 314 KERALA HIGH COURT
5 C.C.No.5249/2012
6. 2010(1)DCR 59
7. 2009 (1) DCR 455
8. 2009(1) DCR 611
9. 2009(2) DCR 759
10. ILR 2004 Karnataka 2938
11. ILR 2008 Karnataka 3635
12. ILR 2008 Karnataka 4629
13. ILR 2009 Karnataka 1633
14. ILR 2007 Karnataka 2709
Accordingly, the accused counsel prays for acquittal of the
accused in accordance with law.
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.060834
dated 16.02.2011 for a sum of Rs.7 lakhs
drawn on IDBI Bank, Mallesharam Branch,
Bangalore, the same is dishonoured for want
of sufficient funds and inspite of issuance of
legal notice, the accused did not comply or
reply 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,
6 C.C.No.5249/2012
For the following:
REASONS
10. POINT NO.1: The accused has admitted that the
complainant who is the friend and both of them were doing Real
Estate Business in the Lemon Project Promoters Ltd. The said
business has been stopped from the last 5 years. The accused
obtained loan amount of Rs.7,00,000/- from his relative
Thirupathi, Prashath at that time for the security purpose the
said amount he issued signed blank cheque as per Ex.P1.
Thereafterwards he repaid the said amount by way of D.D and
the said Prashath retuned the said cheque to this complainant.
The complainant did not returned the said cheque to accused
but he misused the said cheque and filed this complaint and
there is no signature on the postal acknowledgment to show the
legal notice has been duly served to the accused etc.
11. In support of the case of the complainant, the
complainant adduced his oral evidence by way of affidavit as
PW.1, in which he re-iterated the complainant contention and
got marked Ex.P1 cheque alleged by the accused and identified
the signature of accused as Ex.P1(a). The cheque in question
and also the signature on the cheque is admitted by the accused
same is belongs to him but he denied the written contents of
the cheque. In this regard on careful perusal of the contents of
the cheque the contents might have been filled up by the
7 C.C.No.5249/2012
complainant at the time of presenting the said cheque for
collection. Ex.P2 is endorsement. Ex.P3 is the copy of the legal
notice, this notice does not contain the signature of the
complainant except his counsel. Ex.P4 is the postal
acknowledgment to show that the said notice was duly served to
the accused, but the accused has denied the receipt of said
notice and he is not residing in the address as stated in the
notice. In these regard at the time of leading defence evidence
he given his address No. T.6, Dodda Bommasandra, Krishna
Temple Road, Bangalore. Whereas this address is not found on
Ex.P3 copy of legal notice and Ex.P5 postal acknowledgment
service of legal notice to the accused the complainant has not
examined any other witness to support his contention. Ex.P6
complaint is under dispute.
12. The accused counsel denied entire case of the
complainant, in support of the denial the accused counsel cross
examined PW.1 in the cross examination the complainant
denied that since from 2004 onwards both complainant and
accused doing real Estate business but the complainant
admitted that, he knows the accused for the last 20 to 22 years
and he denied that during the year 2006 ad 2007 the accused
issued a cheque in question to his relative Thirupathi,
Prashanth from whom he obtained Rs.7,00,000/- from him etc.
But the accused repaid the said amount to the said Prashanth
8 C.C.No.5249/2012
and the prashanth has returned the security cheque to this
complainant and told to accused to get back the cheque from
the complainant. But the complainant instead of returning the
said cheque presented to the bank and got it dishonoured and
filed this false case against the accused and he has not received
any legal notice from him etc. Further P.W.1 denied that there
was a Criminal case registered against him saying that he has
forged NSC certificate but he told it is the different aspect etc.
But he admitted that the contents of cheque in the signature
and also date on the cheque are in different Ink. The accused
examined himself as D.W.1 on oath he has re-iterated the cross
examination made by the accused counsel as P.W.1. In the
cross examination of DW.1 he denied for obtained a loan of
Rs.10,00,000/- from the complainant for repayment of the said
amount issued the cheque in part payment the same is
dishonoured but admitted that both the complainant and
accused are doing real estate business and thus the accused is
one of the Director to the Lemon Project Promoters Pvt. Ltd.
etc. But he denied that for the purpose of business he obtained
hand loan of Rs.10,00,000/- from the complainant. And he
totally denied that for payment of the amount borrowed from the
complainant issued a cheque in question the same is
dishonoured etc.
9 C.C.No.5249/2012
13. On the basis of facts and circumstance, in order to
show the complainant had huge amount Rs.10,00,000/- with
him he has not produced any documentary evidence before this
court. Likewise for dishonour of the cheque the legal notice was
duly served to the accused for that the complainant has not
examined any one of the witness to support his case. Under
circumstances the case of the complainant creates doubtful.
Insupport of the denial of the case of the accused, counsel for
accused argued that the accused has given rebuttal evidence to
the case of complaint hence the presumption u/s.139 of N.I Act
may be drawn in favour of accused and the complainant fail to
prove the guilt of the accused beyond all reasonable doubt.
Hence, the accused person is entitled for acquittal.
In order to substantiate the contention taken by the
accused the learned counsel for accused relied on the following
Decision reported in No. 1 to 14 as follows.
1. (2008) 4 Supreme Court Cases 54
(Krishna Janardhan Bhar V/s. Dattatraya G. Hegde).
Negotiable Instruments Act, 1881-S.139- Presumption
under- scope of-held.s. 139 merely raises a presumption in
favour of holder of cheque that the said cheque has been issued
for discharge of any debt or other liability-Existence of legally
recoverable debt is not a matter of presumption under.s.139.
2. 2006 AIR SCW 2757 ( D.Vinod Shivappa V Nanda
Bellappa)
Negotiable Instruments Act ( 26 of 1881), s.138 proviso)c)-
Interpretation of statute-Notice demanding cheque amount-
Service of-presumption as to-Cannot be drawn in all cases
where notice is not served on account of nonavaibility of
10 C.C.No.5249/2012
addresses-No such rule of universal application can be laid
down and question depends on facts and circumstances of each
case-Heydon's rule of purposive construction applies.
3. ILR 2007 Karnataka 2709
M.Senguttuvan V Mahadevaswamy
Negotiable Instruments Act. 138 Offence under section
139- presumption under-Rebuttal of order of acquittal-appealed
against-held, that the presumption under section 139 of the act
used not be rebutted only by leading defence evidence and the
said presumption can be rebutted even on the basis of the facts
and elicited in the cross-examination of the complainant as has
been done in the present case judgment of acquittal is justified.
4. 2008 AIR SCW 738
Krishna Janardhan bhatt V dattatraya G.hegde.
Negotiable Instruments Act(26 of 1881), Sc, 138-
dishonour of cheque-defence-proof-accused not required to step
into witness-box-he may discharge his burden on basis of
materials already brought on record-question whether statutory
presumption rebutted or not-must be determined in view of
other evidence on record.
5. 2009 (1) DCR 314 KERALA HIGH COURT
Gopan V Tonny Varghese
Negotiable Instruments Act, 1881-section 138, 139 and
118-Dishonoure of cheque-scope- held -simply because cheque
contained signature of accused is could not be said that cheque
was drawn by him-execution and issuance of cheque have to be
proved to draw presumption.
6. 2010(1)DCR 59
Shri John Fernandes V Smt. Noorjahan Khan
Negotiable Instruments Act, 1881-section 138 and 139-
acquittal of accused-legality-held-to prove the offence under
section 138 of N.I. Act it is necessary for complainant to
establish the ingredients of provision-falsity or weakness in
defence version does not establish the case of complainant.
7. 2009 (1) DCR 455
Tejaram Ramnath Mourya V Ramasrey Haridas Soni and
ano.
11 C.C.No.5249/2012
Negotiable Instruments Act, 1881-section 138-dishonour
of cheque -acquittal-sustainability of -appreciation of evidence-
debt or liability no established -allegeations as alleged seems not
acceptable-Nocogent evidence for paid huxe amount-
consideration of held-where the alleged charge is not prove only
the order of acquittal is justified.
8. 2009(1) DCR 611
Anand Urban Cooperative Credit Society ltd. V Vipin lal
chand Mehta and anot.
Negotiable Instruments act,1881-xection 1387-dishonour
of cheque-acquittal-validity-appreciation of evidence-five signed
blank cheque were issued toward repayment of loan-fact
corroabeted with evidence-consideration of-held -where the
blank cheque issued toward security the trail judge cannot be
branded as perverse or arbitrary in granting acquittal.
9. 2009(2) DCR 759
Shree Daneshwari Traders V Sanjay Jain and ano.
Negotiable Instruments act-section 138-dishnour of
cheque-acquittal-sustainability-held-presumption available to
complainant is not only rebutted but also accused was able to
prove that cheques were given by way of security toward the
goods supplied to him for which he had made payment in cash-
acquittal is justified.
10. ILR 2004 Karnataka 2938
Shashi Prakash V B.Krishna Murthy
Negotiable Instruments Act,1882-section 138-Criminal
procedure code, 1973-section 482-applicability of provision of
section 138 of N.I.act- quashing of proceedings under section
482-held-in order to attract the applicability of section 138 of
the N.I act, one of its essential ingredients is that the cheque by
the accused must be shown to have been issued for the
discharge., in whole or in part, of any debt or other liability
towards the complainant.
11. ILR 2008 Karnataka 3635
K.Narayana Nayak v Sri.M.Shivarama shetty
Negotiable Instruments Act, 1881- Evidence on record
clearly established that the cheque was not issued towards
12 C.C.No.5249/2012
discharge of any legally enforceable debt, but the blank signed
cheque was issued as security-order of acquittal is justified.
12. ILR 2008 Karnataka 4629
Shiva Murthy V Amruthraj
Negotiable Instruments Act,1881-sec.138: whether the
complainant has proved the existence of legally enforceable debt.
It is not only after satisfying that the complainant has proved
existence of legally enforceable debt or liability, the courts could
have proceeded to draw presumption under section 139 of N.I.
Act.
13. ILR 2009 Karnataka 1633
Kumar Exports Vs Sharma Carpets
Negotiable Instruments Act, 1881-Sections 139 and 139-
presmption that cheque was issued in discharge of debt or
liability-presumption how to be displaced-declaration made by
the complainant himself to the sales tax department that no sale
had taken place-accepted as a valid proof that cheques were not
issued by accused in discharge of any debt or liability to
complainant-Accused therefore by producing this evidence, held
to have displaced the presumption under section139 and
therefore offence under section 138 not proved against accused.
14. ILR 2007 Karnataka 2709
M.Senuguttuvan v Mahadevaswamy
Negotiable Instruments Act,1881 section138-Offence
under-section 139- presumption under-rebuttal of -order of
acquittal-appealed against-held. That the presumption under
section 139 of the act need not be rebutted only by leading
defence evidence and tha said presumption can be rebutted even
on the basis of the facts elicitated in the cross-examination of
the complainant as has been done in the present case-judgment
of acquittal is justified.
Accordingly learned advocate for accused prays for
acquitting the accused in accordance with law.
14. In view of the facts and circumstances, the
complainant failed to give corroborate evidence to support his
13 C.C.No.5249/2012
case, but the accused has given rebuttal evidence to disprove
the case of the complainant. Hence, whatever the contention
taken by the complainant without giving corroboration, the
complainant failed to prove the guilt of the accused beyond all
reasonable doubt. Hence, the accused person is entitled for
acquittal. Accordingly, I answer the point No.1 in the Negative.
15. 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.
Accused 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 6th day of April 2015) (NAGARAJEGOWDA.D) XXII Addl. Chief Metropolitan Magistrate, Bangalore City.
ANNEXURE Witnesses examined for the Complainant:
PW.1 Vasanth Kumar Witness examined for the accused:
DW.1 Manoj .V List of Documents marked for the Complainant:
Ex.P1 Cheque
Ex.P1(a) Signature of accused
Ex.P2 Endorsement
14 C.C.No.5249/2012
Ex.P3 Copy of legal notice
Ex.P4 &5 Postal acknowledgment
Ex.P6 Complaint
List of Documents marked for the accused:NIL XXII ACMM, Bangalore.