Bangalore District Court
Sri.B.M.Diwakar vs Sri.Kumar Dass on 16 April, 2015
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the16th 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.8136/2014
Complainant : Sri.B.M.Diwakar,
Aged about 44 years,
S/o.Sri.B.T.Mariswamy.
R/at.No.01/43,
Nandadeepa Housing Colony,
13th Main Road, M.C.Layout,
Vijayanagara, Bangaluru-40
(By Sri.B.C.Devaraju, Adv.)
Accused : Sri.Kumar Dass,
Aged about 48 years,
S/o.Not known to our client,
R/at.No.460, 13th Main Road,
Manjunathnagar,
Bangalureu-10
And also at being Proprietor of
M/s.Abhi Foot Style,
No.14, Jyothi Complex,
Papareddy Palya,
Nagarabhavi II nd Stage,
Bangalure-72.
(By Sri.K.H.Prabhu, Adv.)
Date of Institution : 05.03.2014
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
2 C.C.No.8136/2014
Final Order : Accused is Acquitted.
Date of Order : 16.05.2015
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 contacted the complainant seeking loan
amount of Rs.1,50,000/- to meet his financial commitments.
Accordingly the complainant paid sum of Rs.1,50,000/-to the
accused and assured by the accused agreed to pay interest at
the rate of 1% per month and he will under taken to pay the
loan amount within 3rd week of December 2013. The accused
was along with his introducer M.D.Saju@ Soju, are executed one
on demand promissory note with consideration receipt on
17.12.2013 in favour of complainant. The accused issued a post
dated cheque bearing No.925064 dated 17.12.2013 drawn on
M/S Indian Bank, Benson Town Branch, Bengaluru for a sum of
Rs.1,50,000/- in favour of the complainant for discharge of the
said loan and assured that after presentation of the said
cheques the same are honoured. Accordingly the complainant
presented the said cheques for collection with his Banker
M/s.Canara Bank, Chandra Layout Branch, Bengaluru. The
said cheque is returned unpaid with endorsement that effect
3 C.C.No.8136/2014
"Funds Insufficient". Thereafterwards the complainant got
issued legal notice to the accused on 18.01.2014 the notice has
been sent to the accused through RPAD. The said notice not
served to the accused due to not claimed same is returned
unserved but he did not comply or replied to 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 to the complainant u/s.357 Cr.P.C in the ends 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 P6 and this PW.1 has
been fully cross-examined by the accused counsel and thus, the
complainant closed his side evidence.
4 C.C.No.8136/2014
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 lead his side evidence on
oath as DW.1 and at the time of cross examination of PW.1 and
got marked Ex.D1. At the time of chief examination of DW.1 got
marked Ex.D2 and examined one witness as DW.2 and these
DW.1 & 2 have been fully cross-examined by the complainant's
counsel and thus, the accused also closed his side evidence.
6. In support of the case of complainant, the learned
counsel failed to address the arguments on merit on behalf of
accused the learned counsel for accused vehemently argued
before this court and also relied on the following decision
reported in
1.2006(2) DCR 602
2.2012(2) DCR 529
3. 2011(1) KCCR 118
4. 2005(3) KCCR 1576
Accordingly the learned counsel for accused prays for
acquit the accused in accordance with law.
7. 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.925064
5 C.C.No.8136/2014
dated 17.12.2013 drawn on M/S Indian
Bank, Benson Town Branch, Bengaluru for a
sum of Rs.1,50,000/-, 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?
8. My answer to the above points are as follows:
1) In the Negative,
2) As per final Order,
For the following:
REASONS
9. POINT NO.1: In order to prove the case of the
complainant, the complainant lead his side oral evidence by way
of affidavit as PW.1, in which he re-iterated the complainant
contention and got marked Ex.P1 cheque and identified the
signature of the accused as Ex.P1(a). This issuance of cheque in
favour of the complainant has been disputed by the accused.
Further got marked Ex.P2 is the endorsement issued by the
banker, stating Ex.P1 cheque is dishonoured due to funds
insufficient, Ex.P3 is the copy of legal notice. This notice
contains the signature of both the complainant and his counsel.
Ex.P4 is RPAD postal cover. Ex.P5 is the postal cover returned
with postal shara "Not Claimed" by the accused, Ex.P6
complaint is under dispute.
6 C.C.No.8136/2014
10. The accused has denied the entire case of the
complainant, at the time of recording plea of acquisition and
U/s.313 Cr.P.C statement. In support of his contention he lead
his oral evidence as DW.1 on oath in which he has stated that in
the month of December 2012 this complainant was introduced
through DW.2 Saju. This Saju has made chit transaction with
this complainant and asked the accused to put surety to the
said chit transaction. Accordingly as a security in the year 2013
this accused and D.W2's wife given signed blank cheque and on
demand pronote to the complainant there is a entry in the
counter file of the cheque book as per the Ex.D2. Ex.D1 is the
on demand pronote issued for the purpose of security. Hence he
has not made money transaction with this complainant. The
complainant has not issued any legal notice to this accused he
did not know about on demand pronote etc. As per the chief
examination of D.W1 he examined D.W2 Saju he deposed in
favour of the accused and the alleged cheque and on demand
pronote are issued for the purpose of security not for discharge
of legal liability and identified his signature as Ex.D1(a). These
D.W1 and 2 have been cross examined by the complainant
counsel. In the cross examination he trying to elicitated that the
alleged cheque in question are issued by the accused for
discharge of legal liability and he denied that there was an
different Ink written in the contents of the cheque and he denied
that Ex.D1 and 2 cheque books counter file and also on demand
7 C.C.No.8136/2014
pronote is created for the purpose of this case. Further in the
cross examination of D.W1 it is elicitated that he denied that in
order to close down his traveling business due to loss and also
he denied he also obtained loan amount from this complainant
and as per the Ex.D2(a) cheques record slip, the cheque issued
in favour of the complainant were honoured. And he denied that
there is a forgery case registered against him putting his wife
signature on cheques etc. In order to substantiate the case of
accused and as per the Ex.D1 Xerox on demand promissory
note it was neatly typed all the contents but the signature might
have been taken long back. On the cheque Ex.D2 counter file
there a entry for issuance of alleged cheque in question and also
there is a several blank cheques are remaining in the cheque
books these are clearly supports the case of accused or the
defence taken by him.
11. The accused counsel cross examined P.W1 in his cross
examination he has trying to elicitated that this accused Kumar
Das was introduced to him about 2 years back and at that time
he had doing footwear sales business in the name of M/s.Abhi
Foot Style but he do not know the address of the said shop but
the same is stated and he issued legal notice for discharge of
liability to the accused address of his shop, but he has stated
that before issuance of legal notice to the accused he closed
down his shop. But he admitted that he running the chit
8 C.C.No.8136/2014
transaction DW.2 Saju obtained chit with him. Further he
admitted at the chit transaction he usually took security by way
cheque and pronote but he denied that at the time of chit
transaction this accused and D.W2 saju issued pronote and
cheques. And he denied as per Es.D1 on demand pronote the
same has been created by this complainant and he has stated
the address of accused situated at No.264, 8th B Main Road,
Manjunath Nagar, Bangalore-10. He admitted that on Ex.D2
cheque book counter file there is no date, but it is mentioned
issued the cheques to one Divakara and he has shown in his
income tax written about the loan amount paid to this accused
and he denied the entire contention of accused the alleged
cheques have been issued to this complainant.
12. In order to substantiate the case of the complainant
inspite of sufficient opportunity has been given to the
complainant the complainant counsel fails to argue the case on
merit hence his side arguments taken as nil. But insupport of
defence taken by the accused the learned counsel for accused
relied on the following decision reported in No.
1.2006(2) DCR 602
M/S.Jain Irrigation Systems Ltd. V Arvind Irrigation
Services.
NI Act,1881-sec138-dishonour of cheque-acquittal-validity
of-appreciation of evidence-act caused was authorized dealer-
purchased equipment and sale it-statement shows that no
transaction take places on the date of cheque-no amount due on
such period-cheques issued blank as security-no amount due
9 C.C.No.8136/2014
on such period-cheque issued blank as security-consideration
of-held -petition devoid merit-no offence made out under-order
of acquittal is just and proper-rejected application.
2.2012(2) DCR 529
The Hissar Bankman Co-operative Thrift & Credit society
Ltd., .Vs. Krishan Kumar son of Sewan Ram, where in it is held:
Leave of appeal-granting of- Held since requirement of
Sec. 138 of NI Act are not fulfilled and cheque in dispute was
used by complainant which was given as a security and
because of difference in account, so it cannot be even presumed
that the cheque was given to discharge of legal obligation- Found
no illegality or irregularity in acquittal. Petition dismissed.
3. 2011(1) KCCR 118
Bharathy V Benigopal Jhawar
Criminal Procedure Code,193-section482-criminal
proceedings-quashing of-NI act,1881-demand notice-issuance
of-whether the criminal proceedings against the petitioner
herein, is liable to be quashed-held, yes-the petitioner herein,
who is the accused 2 in the criminal proceedings, have not been
informed by a legal notice, making a demand for payment
amount involved in the cheque, by way of legal notice and thus,
there was non-compliance of the provisions of section 138(b) of
the NI act. 1881 to constitute an offence in terms of section 138
of the act, denying the petitioner herein of an opportunity, to
make the payment-thus, the accused 2 as aforesaid, could not
be said to have committed in question and hence, the criminal
proceedings against him are liable to be quashed.
4. 2005(3) KCCR 1576
Deviprasad Rai V A.M.Ganesh Rai
NI Act,1881-section94-notice of dishonour to drawer-held,
complainant must establish in evidence that there was
intimation from the bank regarding dishonour of cheque and
this fact was intimated to the drawer of the cheque making
demand of the amount under the cheque-The complainant must
establish that the respondent/accused has received the notice
by putting his signature on the postal acknowledgment-to
discharge his burden totally, the complainant has to examine
the postman to prove that the postman has delivered the
demand notice to the accused by obtaining his signature on the
postal acknowledgment-on facts, held, the complainant has not
10 C.C.No.8136/2014
discharged the burden to establish that the signature found on
the postal acknowledgment belong to the respondent/accused.
Accordingly the learned counsel for accused prays for
acquit the accused in accordance with law.
13. On the basis of the facts and circumstances of the
case in order to show the complainant had paid huge amount of
Rs.1,50,000/- to the accused he has not produced any
documentary evidence and he failed to prove the legal notice
issued to the accused duly served to accused. The accused
denied the entire case of the complainant, and he has stated
that the alleged cheque in question issued for security towards
the chit transaction and in support of his contention he
examined as D.W2 and also the documentary evidence at Ex.D1
and 2 are clearly establish the defence taken by the accused.
Under these circumstance the case of the complainant creates
doubtful whether he really paid huge amount of Rs.1,50,000/-
to the accused. The ruling relied by the accused counsel are
squarely applicable to the case of the accused. 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.
14. POINT NO.2: For the above said reasons, I proceed to
pass the following:
11 C.C.No.8136/2014
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 16th day of April 2015) (NAGARAJEGOWDA.D) XXII Addl. Chief Metropolitan Magistrate, Bangalore City.
ANNEXURE Witnesses examined for the Complainant:
PW.1 B.M.Diwakar Witness examined for the accused:
DW.1 Kumar Das DW.2 Saju
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 receipts Ex.P5 Postal cover Ex.P6 Complaint
List of Documents marked for the accused:
Ex.D1 On demand Promissory note Ex.D1(a) Signature Ex.D2 Cheque book Ex.D2(a) Record Slip XXII ACMM, Bangalore.