Bangalore District Court
Sri K.Subba Rao vs Sri Y.A. Narasimha Murthy on 16 May, 2016
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITON
MAGISTRATE, BANGALORE CITY
Dated this the 16TH day of May , 2016.
PRESENT: SRI. NAGARAJEGOWDA.D, B.Com., LL.B.,
XXII Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C.
C.C.No. 22481/2015
Complainant : Sri K.Subba Rao, Son of late K.Sathyam
Flat No. 505, Sairam Residency , Alkapuri
Township, Block B-III Puppalaguda,
Manikonda P.O. Hyderabad 500 039.
Presently at C/o Sri Jagadeesh Reddy,
Flat No. 409, Saranya Arcade, Jagadeesh
Reddy, Layout, Kasavanahalli , Off: Sarjapura
Road, Bangalore - 34.
(By Sri. B. Anjaneyalu.Adv.)
V/s.
Accused : Sri Y.A. Narasimha Murthy, M/s. N.N.Land
Developers & Builders, No. 32/B, RBI Housing
Colony, 3rd Block East, Jayanagar,
Bangalore - 560 011.
(By Sri B.Mohan,.Adv.)
Date of Institution 1-7-2015.
Offence complained of U/s 138 of N.I.Act.
Plea of the accused Pleaded not guilty
Final Order Accused is convicted
Date of Order : 16.05.2016.
2 C.C.No.22481/2015
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.
REASONS
The brief facts of the complainant case is as follows:-
2. The complainant submits that accused is doing real estate
business in acquiring, developing and selling properties and had
given wide publicity that he has undertaken up a project of
development of properties and formation of layout of sites in
Adigarakallahalli village, Sarjapura Hobli, Anekal Taluk and
offered to sell the site to the general public and invited application
from the interested persons who are interested to own sites in the
proposed project. The complainant was interested to buy sites for
himself and also in the names of his wife and children and as per
the scheme floated by the accused, the complainant paid initial
deposits to the accused for allotment of sites to himself, his wife
and daughters. The accused has received and acknowledged the
initial deposits from the complainant and issued separate receipts
as under:
Sl.No Name of depositor Date Receipt Amount
3 C.C.No.22481/2015
1. Kotipalli Subba Rao 17-1-2010 199 2,00,000=00
Kotipalli Mani
2. Kotipalli Subba Rao 17-1-2012 624 2,00,000=00
Kotipalli Mani
3. Savaram Lavanya 17-1-2012 622 4,00,000=00
4. Mamillapalli Ushashri 17-1-2012 623 2,00,000=00
The accused has not at all taken up the project of development of
properties and formation of residential layout of sites and thereby
he has failed to allot sites to the complainant and his family
members. The complainant had no other option but to withdrawn
from the bogus scheme floated by the accused and requested the
accused to refund the initial deposits remitted by him together
with interest and damages for the hardship, loss of interest,
mental agony suffered by himself and his family members as a
result of failure on the part of the accused to take up the
development project and to allot sites. After repeated requests
and demands made by the complainant, the accused conceded
and agreed to refund the initial deposits together with interest
/damages. Accordingly, the accused has transferred a sum of
Rs.2,00,000/- to the complainant's bank account at ICICI Bank
through RTGS Money Transfer and gave a cheque No. 913181
dated 23-02-2015 drawn on Andhra Bank, Bangalore for a sum
4 C.C.No.22481/2015
of Rs.4,00,000/- which is encashed by the complainant for which,
the complainant has given separate receipt to the accused. For
the remaining balance amount the accused gave two post dated
cheques bearing No. 636574 dated 14-02-2015 for Rs.8,00,000/-
and another cheque bearing No. 025969 dated 18-5-2015 for
Rs.4,00,000/- drawn on the National Co-operative Bank Ltd.,
Gandhi Bazar Branch, Bangalore in favour of the complainant
towards the discharge of the part of the liability due by the
accused to the complainant and assured the complainant that he
would arrange sufficient funds in his bank account to honour
both the cheques. As per the request and instructions of the
accused, the complainant presented the cheque bearing No.
636574 for Rs.8,00,000/- for encashment through his banker
State Bank of Patiala, Bangalore . But the said cheque
dishonoured with Memo dated 12-05-2015 stating the reason
"Funds insufficient" in the ban account of the accused.
Immediately the complainant intimated to the accused about the
fact of dishonour of the cheque but accused failed to pay the
amount. Thereafterwards, the complainant got issued legal notice
on 22-5-2015 to the accused, calling upon the accused to pay the
cheque amount . The accused has avoided the service of notice
and it has returned unserved on 5-6-2015 with postal shara"
5 C.C.No.22481/2015
Intimation delivered, Not claimed, Return to Sender". . Inspite of
issuance of legal notice, he did not replied or complied the notice
and thus accused committed the offence punishable u/s. 138 of
NI Act and punish the accused in accordance with law and to
award suitable compensation as per Sec.357 of Cr.P.C., in the
interest of justice and equity.
3. The accused appeared before this court and contest this
case by denying the entire case of complainant at the time of
recording of Plea of Accusation . In order to prove the case of
complainant, he adduced his oral evidence as PW-1 by way of
affidavit and got marked Ex.P1 to Ex.P10 and this PW-1 has been
fully cross examined by the accused counsel and thus
complainant closed his side evidence.
4. Thereafterwards, the accused examined u/s.313 of
Cr.P.C. in which, he totally denied the entire case of complainant .
He in support of his denial, he submits his side no defence
evidence, however at the time of cross-examination of PW-1, the
accused counsel got marked Ex.D1 to Ex.D5 and thus closed his
side defence evidence.
5. I have heard the arguments of both complainant and
accused counsel complainant on merit. In support of the case of
6 C.C.No.22481/2015
complainant, he relied on the following decisions reported in
:2012 KCCR page 4360, AIR 2007 SC 1721, AIR 2011 SCW 1886
and AIR 2011(3) Kar 1. Hence, prays for convicting the accused in
accordance with law.
6. In order to prove the case of complainant, the
complainant adduced his oral evidence as PW-1 filed by way of
affidavit. In which, he reiterated complaint contention and got
marked Ex.P1 cheque alleged to be issued by the accused and
identified the signature of the accused as per Ex.P1(a). This
issuance of cheque in favour of complainant for discharge of legal
liability has been disputed by the accused. Further got marked
Ex.P2 is an endorsement issued by the bankers stating that Ex.P1
cheque was dishonoured due to "Funds insufficient". Ex.P3 is the
copy of legal notice . This notice does not contain the signature of
the complainant except his counsel . Ex.P4 is the postal receipt.
Ex.P5 is the postal cover returned with the postal shara
"Intimation delivered " etc.. Ex.P6 to Ex.P9 are receipts for having
issued notice to the complainant as per the contents of the
complaint . Ex.P10 is the Formed residential Sites made by the
accused. This letter issued on 16-11-2011 along with this letter .
Ex.P10(a) is the layout Plan and Ex.P10(b) is the colour Map of
existence of the proposed development of Site. Etc.. On the basis
7 C.C.No.22481/2015
of the oral and documentary evidence, prima facie complainant
proves that the complainant had invested the various amounts to
the accused in order to purchase site from the accused etc...
7. The accused has denied the entire case of complainant .
In support of his denial, he submits that his side no defence
evidence however, the accused counsel cross-examined the PW-1 .
In the cross-examination , he has stated that apart from this
case, he has not filed any other case against this accused with
respect of cheque No. 025969. But he has admitted that on the
Xerox receipt one K.Subba rao signature belongs to this
complainant and hence, the complainant had identified this
receipt and got marked as Ex.D1. Further he has stated that as
per Ex.D1 receipt, he has not received any amount from the
accused etc.. Further on 23/2/2015, he issued another receipt in
favour of accused as Ex.D2 and as per the contents of Ex.D2
receipt is correct. Like wise, in the other Xerox receipt as per
Ex.D3 belongs to this complainant and as per this receipt, he
received the amount from the accused towards the purchase of
Site etc.. Further admitted that after issuance of legal notice to
this accused, accused issued reply notice as per Ex.D5 . In the
reply notice, he admitted facts and circumstances of the case of
complainant but instead of repayment of amount invested by the
8 C.C.No.22481/2015
accused, but on the basis of security cheque , he misused the
same and filed this case etc... Further got marked Ex.D4 is the
legal notice issued by the accused to one Subba rao regarding the
said transaction , the same is denied the complainant . But except
the total denial of contention of accused, the complainant failed to
prove that the accused not at all invested any amount in his
proposed project etc.. Further Ex.P1 cheque belongs to the
accused , the same is admitted by him and also he admitted the
signature found on Ex.P1(a) belongs to this accused. Whatever the
contention taken by the accused will not support the case of
accused to substantiate his contention.
8. In support of the case of complainant, learned counsel for
the complainant vehemently argued before this court that the
accused issued alleged cheque in question for discharge of legal
liability and he has taken untenable contention without giving
rebuttal evidence to the case of complainant . In support of his
contention, he relied on the decisions reported in :
AIR 2007 SC 1721, ( Smt. J.Yashoda Vs.Smt. Shobha
Rani) In which it is held that " Secondary evidence-
admissibility- documents in question were admittedly photo
copes- There was no possibility of said documents being
compared with original as same were with another person-
9 C.C.No.22481/2015
conditions in S. 65(a) had not been satisfied- documents
cannot be therefore, accepted as secondary evidence.. "
2012(5) KCCR 4360 (Vasanth Madhava Vs. E.Seshadri
Kutti Dorai) in which it is held that " Evidence Act, 1878-
Section 65- Marking of document-Not proof of contents
thereof- secondary evidence of original document to be led
only in circumstances mentioned under- In absence of such
circumstances, question of proving document or admitting it
in evidence does not arise- Photocopy- cannot even be a
secondary evidence
AIR 2011(3) Kar 1.( M/s. Disha Impex Pvt. Ltd Vs. M/s.
Srinivasa Minerals and Traders Ltd & Ors. ) It is held that
....comparison of disputed handwriting /signature- power of
court- can be exercised only in exceptional circumstances-
court can play role of expert if neither party calls an expert or
handwriting expert is not available .. etc.
9. On the basis of aforesaid decisions and facts and
circumstances of the case, prima facie complainant proved the
alleged guilt of the accused beyond all reasonable doubt. For
existence of legal liability , the accused issued cheque in question,
the same was dishonoured due to "Funds insufficient". If at all the
accused did not issue alleged cheque in question to the
complainant, why he has not instructed to the bankers to stop
payment of the cheque but he did not do so. Under these
10 C.C.No.22481/2015
circumstances, the accused is liable for conviction in accordance
with law. Accordingly, I pass the following:
ORDER
Acting under Sec.265 of Cr.P.C. accused is Convicted for the offence punishable u/s 138 of N.I.Act and accused is sentenced to pay a fine of Rs.2,000/- ( Rs..Two thousand only) . In default of payment of fine amount, the accused shall undergo S.I. for a period of Two months.
The complainant was awarded compensation of Rs.16,00,000/- (Rs.Sixteen Lakhs only) i.e. double the cheque amount and the same shall be paid to the complainant by the accused within 30 days from the date of this order .
In default of payment of compensation amount, the accused shall undergo Simple Imprisonment for a period of Two years.
Office is directed to supply free copy of this judgment to the accused forthwith.
(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 May, 2016) (NAGARAJEGOWDA.D) XXII ACMM, Bangalore city.
11 C.C.No.22481/2015ANNEXURE Witnesses examined for the Complainant:
PW.1 : K.Subba rao Witness examined for the accused:
nil :
List of Documents marked for the Complainant:
Ex.P1 : Cheque
Ex.P1a : Signature of the accused
Ex.P2 : Endorsement
Ex.P3 : Legal notice
Ex.P4 : Postal receipt
Ex.P5 : Returned postal cover
Ex.P5a Notice in it
Ex.P6 to 9 : Receipts
Ex.P10 Letter dtd 16-11-2011
By N & N Land Developers and
Builders
Ex.P10a Copy of plan
Ex.P10(b) Map
List of Documents marked for the accused:
Ex.D1-3 : Copy of receipts. Ex.D4 Notice dtd. 17-11-2015 Ex.D5 Reply notice dtd. 30-12-2015.
XXII ACMM, Bangalore.12 C.C.No.22481/2015