Bangalore District Court
Smt.Boramma vs Smt.K.Padmavathi Naidu on 16 July, 2016
IN THE COURT OF XVI THE ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 16th day of July 2016
Present: Smt. Saraswathi.K.N, B.A.L.,LL.M.,
XVI Addl. Chief Metropolitan Magistrate,
Bengaluru.
JUDGEMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.28812/2014
Complainant : Smt.Boramma,
Aged about 65 years,
R/at No.649,
Opp.Ambedkar College,
3rd cross, Kengunte,
Jnanabharathi Post,
Bengaluru-56.
Rep. By her GPA Holder
Sri.Aditya K.Manjunath,
S/o.Late H.N.Kempaiah,
Aged about 40 years,
R/at No.649,
Opp.Ambedkar College,
3rd cross, Kengunte,
Jnanabharathi Post,
Bengaluru-56.
(Rep. by Sri.C.S.Girish
Kumar., Adv.,)
- Vs -
2 C.C. No.28812/2014
Accused : 1. Smt.K.Padmavathi Naidu,
W/o.K.Ravindra Naidu,
2. Sri.K.Ravindra Naidu,
S/o.Not known
Both R/at.No.170,
11th Main, 3rd Stage,
Manjunathanagar,
Bengaluru-10.
(Rep. by Sri.Roopesh Kumar
N.R Adv.,)
Case instituted : 05.08.2014
Offence complained : U/s 138 of N.I. Act
of
Plea of accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 16.07.2016
JUDGMENT
The Complainant has filed this case through her GPA holder against the accused No.1 & 2 for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. It is the case of the Complainant that, she knows the Accused since several years. Both them have jointly borrowed a hand loan of Rs.4,60,000/- in the month of November-2013 to solve their personal necessities and 3 C.C. No.28812/2014 problems and both of them have also agreed to return the said amount within six months. However, they have not returned the same. They have been postponing the same on one or the other pretext to return the amount. Finally in the month of June-2014, both them have issued a joint cheque bearing No.558706 for Rs.4,60,000/- dated 26.04.2014 drawn on the State Bank of Mysore, West of Chord Road Branch, Bengaluru, in his favour assuring that, upon presentation, the same would be honoured. As per the assurance of the Accused and believing their words, when she presented the said cheque for collection, it got returned with an endorsement "Funds Insufficient". Thereafter she got issued legal notice to them. Inspite of the service of the notice, they have failed to repay the amount covered under the cheque. Hence, the present case.
3. After recording the sworn statement of the Complainant, the same has been registered as a criminal case, summons has been issued to the accused No.1 & 2, who have appeared through their counsel and have got enlarged on bail. The substance of the accusation has been read over to them, they have pleaded not guilty and have claimed to be tried.
4 C.C. No.28812/20144. In order to prove the case of the Complainant her son has examined himself as PW-1 in the capacity of her GPA holder and relied upon documentary evidence at Ex.P1 to P6.
5. Thereafter, the incriminating evidence found in the evidence of the Complainant has been explained to the accused No.1 & 2 by recording their statement as required under Sec. 313 of Cr.P.C., who have denied the same and have chosen to lead their defence evidence.
6. The Accused No.1 has examined herself as DW1 and relied upon Ex.D1 & 2.
7. Heard the Arguments of both the sides and perused the materials on record.
8. The following points arise for my consideration:-
1. Whether the Complainant has proved beyond reasonable doubt that the accused is guilty of the offence punishable under Sec.138 of the Negotiable Instruments Act?
2. If so, what Order or Sentence?5 C.C. No.28812/2014
9. My findings to the above points are as under:-
Point No.1: Negative;
Point No.2: As per the final order for the following:-
REASONS
10.POINT No.1:- The GPA holder of the Complainant has filed this complaint against the Accused No.1 & 2, claiming to recover a sum of Rs.4,60,000/- from them, which according to him was lent by his mother to the Accused in November 2013 to solve their personal necessities and problems. According to him, though the Accused had agreed to return the said amount within 6 months, they have failed to do so. The cheque issued by them towards the discharge of the said loan came to be dishonoured due to the reason "Insufficiency of funds" in their account.
11. In order to prove these allegations, the GPA holder of the Complainant has filed his affidavit by reiterating the complaint averments.
In support of his oral evidence, P.W-1 has relied upon the following documentary evidence:-
6 C.C. No.28812/2014Ex.P1 is the disputed cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a) & Ex.P1(b), the Bank memo as per Ex.P2, the office copy of the legal notice is as per Ex.P3, the postal acknowledgement as per Ex.P4, the Special power of attorney as per Ex.P5 & the complaint as per Ex.P6.
12. By relying upon this documentary evidence, during his cross-examination, it is elicited from the mouth of P.W-1 that, he has studied up to PUC, while his mother is not literate and she knows only to sign and that she is a house wife. According to him, his mother had taken the amount of Rs.4,60,000/- from his father so as to lend the same to the Accused. With regard to his fathers source of income, PW1 has claimed that his father was working as a Senior Assistant Manager in an Insurance Company and he has worked for about 15 to 20 years and he was getting a monthly salary of Rs.25,000/- to Rs.30,000/- and except his salary he had no other income. With regard to the financial status of their family also it is elicited from PW1 that, they are two children and both of them are married and he has a sister who is also married and though according to him, 7 C.C. No.28812/2014 his father was an Income Tax Assessee, he has not produced any documents to prove the same. With regard to the savings and the expenditure of their family members mainly during the life time of his father, PW1 has pleaded his ignorance. He has denied that, after the death of his father, his mother is getting half of the pension. Further with regard to the savings of his father during his life time, PW1 has again pleaded his ignorance. Thus throughout the course of cross- examination of PW1, has been lead with regard to the financial capacity of the family so as to allegedly advance a loan of Rs.4,60,000/- to the Accused. In this regard PW1 has deposed that, the said amount was with his mother and out of it, she had kept some amount in the house and some amount at Bank, but he has not been able to state what was the amount which was kept at home and what was the amount which was kept in the Bank. Therefore the cross-examination of PW1 clearly goes to show that, he has miserably failed in order to prove the financial capacity of the Complainant as well as that of his father so as to believe that, she could have advanced a loan of Rs.4,60,000/- to the Accused. Moreover it is also claimed by PW1 that, the Accused had 8 C.C. No.28812/2014 sought the said loan amount 10 to 16 days prior to the date of the alleged lending in November 2013. According to him, at the time of the alleged lending of the loan, his mother has not obtained any document from the Accused. No doubt according to PW1, the Accused are known to them for about 10 years. Even then it is difficult to imagine that a huge amount of Rs.4,60,000/- could be lent to a person without obtaining any document from such a person.
13. Now with regard to the acquaintance of the Complainant and the Accused, PW1 has deposed that, the former are known to him through his father's job and he has admitted that, the Accused were doing the work of getting the savings done in the Post Office and that, they are known to him though their agency. However PW1 has stated before the Court that, his father has not given any amount to them for the purpose of depositing the same in the Post Office. According to PW1, the Accused have issued the cheque by mentioning the date as 24.6.2014 & he has admitted that, in the complaint, the date of the issuance of the cheque is mentioned as 26.4.2014. Though according to PW1, it is a mistake which has 9 C.C. No.28812/2014 occurred, while mentioning the date of the cheque as 24.6.2014.
14. The defence of the Accused is that, the father of PW1 had given to them about Rs.15,000/- to 20,000/- for the purpose of keeping the same as a deposit in the Post Office and towards the security of the same, he had collected one blank cheque from them and after his death, by misusing their bank cheque, the present false case has been filed against them by the Complainant.
15. To corroborate this defence version, the Accused No.1 has entered into witness box by examining herself as DW1 and during her evidence she has deposed before the Court that, she is working as an agent in PACL since 2011 and she got the said agency through Kempaiah, who is the father of PW1 and she used to collect the money from the public and remit the same to the office of the Company. In this regard, she has produced her ID card from Ex.D1 and her husband's ID card as per Ex.D2 and that, at the time of taking the agency in the said Company, the said Kempaiah had demanded for one cheque towards security from her and therefore after his sudden death, the cheque issued by her came in the 10 C.C. No.28812/2014 possession of his family members who have filed this case by misusing the said cheque.
16. Though in this regard, it is elicited from DW1 that, along with her, the father of the Complainant Kempaiah had taken even other persons as agents, she has pleaded ignorance to the question, as to, if the said Kempaiah, had taken agents from such other persons also. However she has denied any financial transaction either with the Complainant or with PW1 as alleged by them. It is pertinent to note that, PW1 has categorically admitted as to how the Complainant and himself knows the Accused and according to them, the Accused does the work of getting the amounts deposited in the Post Office and he has also admitted that, they know the Accused through his father's job. This clearly goes to show that, the nature of the work having done by the Accused is also admitted by PW1 and moreover even during the cross-examination of DW1, there is no denial of the fact that, the Accused No.1 & 2 were working as agents in PACL India Ltd., & no suggestion has been put to DW1 with regard to the genuineness of Ex.D1 & 2. Therefore the defence of the Accused that they obtained the agency of PACL from the father of the Complainant has not been 11 C.C. No.28812/2014 denied or disputed by PW1 & as a result this defence version has remained undisputed.
17. Now coming to the second technical defence with regard to the service of the legal notice, though during the cross-examination of PW1, he has been questioned that, he has not got issued notice to the Accused No.1 & 2 separately and only one notice has been sent to them, during the chief-evidence of DW1, she has admitted that, the legal notice sent by the Complainant has been served upon her, but again she has reiterated that, there was only one notice served to the Accused No.2 and herself.
18. In this regard, in support of his arguments the learned Defence Counsel has placed reliance upon the decision of the Hon'ble Apex Court in MD Thomas Vs. P.S Jaleel and another, reported in (2009)14 SCC 398, wherein it has been held that, " Notice to drawer is sine-qua-non in terms of (b) of Sec.138 of the Negotiable Instrument Act is mandatory and the notice received 12 C.C. No.28812/2014 by a family member cannot be deemed service of notice to the drawer of the cheque".
19. In the said case, there was no evidence with regard to the fact, as to, if the wife was living with the husband. In such circumstance, when the notice was served on the wife, it was held that, in view of there being no clear proof to show that, the wife was living with the husband, the deemed service of notice could not be accept and it was held that, there was no proper reach of service.
20. However in the present case, there is no dispute with regard to the fact that, the Accused No.1 & 2, being the wife and the husband are living together under common roof and therefore there is no question of doubt with regard to the service of notice on them. To this extent the technical defence of the Accused that, there is no proper service of notice cannot be accepted by the Court.
21. However the crucial point in this case is with regard to the financial capacity of the Complainant for 13 C.C. No.28812/2014 having allegedly lent Rs.4,60,000/- to the Accused during the month of November 2013. As already discussed, there is no single material placed on record by the Complainant to prove her financial capacity before the Court as on the date of the alleged lending of the loan. Similarly even though PW1 claims that, his mother had kept some amount at home and some amount in the bank, he has miserably failed to prove the same by reliable and cogent evidence. On the contrary, the Accused have probabalised their defence so as to believe their defence version. In view of all these reasons, this Court is of the view that, the Accused have successfully rebutted the presumption available in favour of the Complainant under Sec.139 and 118(a) of the N.I. Act. Therefore this Point deserves to be answered in the Negative.
22. POINT No.2:- In view of the above reasons and discussions, I proceed to pass the following: -
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused No.1 & 2 are 14 C.C. No.28812/2014 hereby acquitted of the offence punishable u/s 138 of Negotiable Instruments Act.
Their bail bond and surety bond stands cancelled.
(Dictated to the stenographer, transcript thereof is computerized and print out taken by her, verified and then pronounced by me in the open Court on this the 16th day of July, 2016).
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the Complainant:
PW.1 : Aditya K.Manjunath
List of documents exhibited on behalf of the
Complainant:
Ex.P-1 : Original Cheque;
Ex.P-1(a) : Signature of the accused No.1;
Ex.P-1(b) : Signature of the accused No.2;
Ex.P-2 : Bank Memo;
Ex.P-3 : Copy of the Legal Notice;
Ex.P-4 : Postal Acknowledgement;
Ex.P-5 : Special Power of Attorney;
15 C.C. No.28812/2014
Ex.P-6 : Original Complaint.
List of witnesses examined on behalf of the accused:
D.W-1 : K.Padmavathi Naidu List of documents exhibited on behalf of the accused:
Ex.D1 & 2 : ID cards.
(SARASWATHI.K.N),
Date: 16.07.2016 XVI ACMM, Bengaluru City.
16 C.C. No.28812/2014
16.07.2016
Judgment pronounced in the open court vide separate order.
ORDER By exercising the power conferred u/s 265 of Cr.P.C., the accused No.1 & 2 are hereby acquitted of the offence punishable u/s 138 of Negotiable Instruments Act.
Their bail bond and surety bond stands cancelled.
(SARASWATHI.K.N), XVI Addl.,Chief Metropolitan Magistrate, Bengaluru City.