1 [CASE NUMBER] IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITAN MAGISTRATE, BENGALURU Present: Smt. HEMA PASTAPUR B.A., LL.B., XXII Addl. Chief Metropolitan Magistrate, Bengaluru. Dated this the 20th day of September 2018 C.C.No.26198/2017 Judgment under [SECTION] of [ACT] Complainant : SRI. HARISH. [ENTITY] s/o [ENTITY]. K.V, Aged about 26 years, R/at No.79, Chandrappa Building, Shivanahalli, Raitarasanthe Road, Yalahanka Old Town, Bengaluru - 560 064. (By Shri [ENTITY], Advocate) V/s Accused : 1) SRI. [ENTITY], s/o [ENTITY], Aged about 58 years, R/at [ENTITY], 2 [CASE NUMBER] Kanchugodu Post, Gujjadi, Kundapura Taluk, Udupi District - 576 247. 2) SRI. [ENTITY], s/o [ENTITY], Aged about 46 years, R/at Dhodd Hithalu, Bandaru Road, Gangolli Post, Gongolli - 576 216, Kundapura Taluk, Udapi District. (By Shri [ENTITY], Advocate) JUDGMENT
That, the complainant has filed the private complaint under [SECTION] of [ACT], for taking action against the accused No.1 and 2 for the offence punishable under [SECTION] of the [ACT].
That, the brief facts of the present case are as under:-
1. That, the complainant and accused were friends and the accused in pursuance of said acquaintance have approached the complainant with a request for a financial help and the complainant considering the needs of the accused on 05.09.2014 had advanced them a sum of Rs.2,50,000/- in cash. That, the accused at the time of availing the said loan amount have agreed to repay the same within six months from the date of its availment. That, when the complainant after the lapse of said period of six months demanded the accused for repaying his said loan amount at that time the accused have issued in his favour a Cheque bearing No.842495 dated:-07.06.2017 for a sum of Rs.2,50,000/- drawn on Syndicate Bank, Bunder Road, Gangulli - 576 216. That, the complainant on 07.06.2017 had presented the said cheque for encashment in Axis Bank, Basaveshwaranagara branch, Bengaluru and on 09.06.2017 the same was returned with the shara as 'Account closed'. That, the complainant for the aforesaid acts of the accused on 22.06.2017 had issued the legal notice to them through RPAD and posted the same on 23.06.2017 and the notice issued to accused No.1 was duly served upon him on 28.06.2017 and the notice issued to accused No.2 was returned with the shara as 'not claimed'. That, for aforesaid facts the complainant has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took the cognizance for the offence punishable under [SECTION] of the [ACT] and thereafter, recorded the sworn statement of the complainant and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to them. That, the accused in pursuance of said summons have appeared before this through their Learned counsel and they were enlarged on bail. That, the substance of accusation of the accused has recorded and read over them in language known to them and they have not pleaded guilty and claimed to tried. That, after completion of complainant side evidence the statement of the accused as contemplated under [SECTION] of the [ACT], has recorded and read over them and they have denied all incriminating evidence appearing against them.
3. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge their legally enforceable debt have issued in his favour a Cheque bearing No.842495 dated:-07.06.2017 for a sum of Rs.2,50,000/- drawn on Syndicate Bank, Bunder Road, Gangulli - 576 216?
2. Whether the complainant has further proved that, the said cheque was dishonoured as 'Account closed' and thereby the accused have committed the offence punishable under [SECTION] of the [ACT]?
3. What order?
4. That, the complainant to substantiate his contentions has deposed himself as PW1 and got marked the documents at EXs.P1 to 5 and closed his side.
That, the accused have not led either oral documentary evidence on their behalf.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the [ACT] Point No.2 :- In the [ACT] Point No.3 :- As per the final order for the following:-
REASONS
6. Point No.1:- It is specific contention of the complainant that, the accused have approached him with a request for a financial help and considering the needs of the accused on 05.09.2014 he advanced them a sum of Rs.2,50,000/- in cash. That, the complainant has further contended that the accused at the time of availing the said loan amount have agreed to repay the same within six months from the date of its availment and when he approached the accused after the lapse of said period of six months and demanded them for repaying his said loan amount at that time they have issued in his favour a Cheque bearing No.842495 dated:-07.06.2017 for a sum of Rs.2,50,000/- drawn on Syndicate Bank, Bunder Road, Gangulli - 576 216 - EX.P1.
7. It is pertinent to note here that, the accused in their Reply notice -EX.P5 and in cross-examination of the complainant have taken a specific defenses that they do not know the complainant and they and other four partners of Mookambika Fisheries, Gangolli Village, Kundapura Taluk, in the year 2014 have borrowed a sum of Rs.2,00,000/- from one Shri [ENTITY], residient of Kodi Village Kundapura Taluk and later on, they have repaid the entire loan amount to said [ENTITY]. That, the accused have a taken further defense that at the time of availing the said loan amount from said [ENTITY] they have issued in his favour one cheque as a security. That, the accused persons in cross-examination of the complainant have taken a further specific defense that the complainant is having no capacity to advance them a sum of Rs.2,50,000/-.
8. It is pertinent to note here that, the accused in support of their contentions have placed their reliance on following decisions:-
1. Sri. [PRECEDENT] wherein it has held that absence of statement in the complaint as to when the amount was actually given to the accused - Absence of material particulars of the transaction in the complaint -
Except signature all other entries are in different handwriting, different ink and undoubtedly made at different time - Mentioning of merely the date of issue of cheque without any material particulars - Held, Judgment of acquittal is justified.
2. [PRECEDENT], reported in Laws (SC) 2013-12-4 wherein it has held that [ACT] - [SECTION] - Complaint under - In view of various defects in evidence of complainant which strikes at root of complaint, conviction of accused not sustainable - The respondent was not even aware of the date when substantial amount of Rs.1,50,000/- was advanced by him to the appellant, that he was not sure as to who wrote the cheque, that he was not even aware when exactly and where exactly the transaction took place for which the cheque came to be issued by the appellant. Apart from the said serious lacuna in the evidence of the complainant, he further, admitted as PW.1 by stating once in the course of the cross-examination that the cheque was in the handwriting of the accused and the very next moment taking a diametrically opposite stand that it is not in the handwriting of the accused and that it was written by the complainant himself, by further reiterating that the amount in words was written by him. That the various defects in the evidence of respondent, as noted by the trial court, which were simply brushed aside by the High Court without assigning any valid reason. Such a serious lacuna in the evidence of the complainant, which strikes at the root of a complaint under [SECTION], having been noted by the trial Judge, which factor was failed to be examined by the High Court while reversing the judgment of the trial Court, would vitiate the ultimate conclusion reached by It is to be noted here that, In effect, the conclusion of the Judge of the High Court would amount to a perverse one and, therefore, the said judgment of the High Court cannot be sustained.
9. It is significant to note here that, the burden lies upon the complainant to substantiate that the accused persons have approached him with a request for a financial help and on 05.09.2014 he advanced them a sum of Rs.2,50,000/-.
It is pertinent to note here that, the complainant in his complaint, in his sworn statement, in his examination-in-chief affidavit and in Legal notice -EX.P3 has specifically mentioned that on 05.09.2014 he advanced a sum of Rs.2,50,000/- to the accused persons. It is pertinent to note here that, the complainant contrary to his aforesaid versions in his cross- examination dated:-28.06.2018 in page No.1 at 6th line has specifically deposed that on 05.06.2016 he advanced a sum of Rs.2,50,000/- to the accused. It is pertinent to note here that, from said evidence of the complainant it clearly appears that he is not aware when the alleged transaction had occurred between him and the accused persons. It is pertinent to note here that, the said evidence of the complainant has strike out the every root of the present complaint lodged by him against the accused persons. It is pertinent to note here that, in view of aforesaid conduct of the complainant it clearly appears that the accused persons have never approached him with a request for a financial help and he never advanced them a sum of Rs.2,50,000/-.
It is significant to note here that, as stated above the accused have taken a further specific defense that the complainant is having no capacity to pay them a sum of Rs.2,50,000/-. It is pertinent to note here that, when the financial capacity of the complainant is questioned, then it becomes the bounden duty of the complainant to substantiate that on alleged date of transaction he was possessed with him a substantial amount. It is pertinent to note here that, the complainant in his complaint, in his sworn statement and in EX.P3 has not disclosed about his source of income. It is pertinent to note here that, the complainant in his cross- examination dated:-26.08.2018 in page No.1 at 11th line has deposed that during the year 2014 he was getting the salary of Rs.30,000/- to Rs.35,000/- per month. It is pertinent to note here that, the complainant to substantiate his aforesaid contentions has not produced before the Court any document. It is pertinent to note here that, in absence of any material, cogent and reliable evidence the contentions of the complainant that during the year 2014 he was getting the salary of Rs.30,000/- to Rs.35,000/- per month cannot be believed and accepted.
It is significant to note here that, the complainant has also not produced before the Court any document such as his Statement of account, Bank pass book to substantiate that on alleged date of transaction he was possessed with him a sum of Rs.2,50,000/-. It is pertinent to note here that, from the said conduct of the complainant it clearly appears that on alleged date of transaction he was not possessed with him a sum of Rs.2,50,000/-. It is to be noted here that, the complainant has utterly failed to prove his financial capacity.
It is significant to note here that, the complainant as stated above has contended that he had advanced a sum of Rs.2,50,000/- to the accused and whereas, the accused have contended that in the year 2014 they and other four partners of the said Mookambika Fisheries have availed a sum of Rs.2,50,000/- from the said [ENTITY]. It is pertinent to note here that, as stated above the complainant has contended that he advanced a sum of Rs.2,50,000/- to the accused persons and in contrary to his aforesaid versions in his cross-examination dated:-08.08.2018 in page No.3 at 10th line has specifically deposed that, QU FU U Dgvg zs Aiiz g qgAz zP Q v zj zgi U Dgvg zs g qgvz JAz vg.
It is further significant to note here that, the complainant in his cross-examination dated:-28.06.2018 in page No.2 at 14th line has further specifically admitted that, zj i U zj PAP jgjU g Ev JAzg j.
It is pertinent to note here that, the said evidence of the complainant has strike out the every root of the present complaint lodged by him against the accused person. It is pertinent to note here that, the said evidence of the complainant leads arrive a conclusion that he had not at all advanced a sum of Rs.2,50,000/- to the accused. In other words, the said evidence of the complainant has strengthened the contentions of the accused. It is pertinent to note here that, the complainant has utterly failed to prove that he had advanced a sum of Rs.2,50,000/- to the accused.
10. It is significant to note here that, as stated above the complainant has specifically contended that the accused persons at the time of availing from him a sum of Rs.2,50,000/- have agreed to repay the same within six months from the date of its availment and after the lapse of said period of six months when he asked the accused persons for returning his said loan amount at that time they have issued in his favour EX.P1. It is significant to note here that, the complainant in contrary to his aforesaid version in his cross-examination has given contradictory statements. It is pertinent to note here that, at this stage it is very much necessary to have a glance over the said evidence of the complainant. It is pertinent to note here that, for the sake of convenience the said evidence of the complainant has reiterated as under:-
in cross-examination dated:-28.06.2018 in page No.1 at 16th line - QU FU APB-05.09.2014 [PRECEDENT]
in cross-examination dated:-28.06.2018 in page No.3 at 2nd line -QU FU v ZQ APB-07.06.2017 JAz z iqVz D APQAv AavV AiU zj ZP U Dgvg PngvgAz PzP Q v t Pl APAz JAz vg.
in cross-examination dated:-08.08.2018 in page No.3 at 15th line - [PRECEDENT]. [CASE NUMBER] ig P v ZQ MPuU gz Czg irgvgAzg j. QU FU t Pl zAz Dgvg ZP Pl Czg MPuU gz AP z irgvg JAz PzP Q AP z irgAz vg.
It is pertinent to note here that, from the entire evidence of the complainant it clearly appears that the accused persons to discharge their legally enforceable debt have not at all issued the cheque in question in his favour. It is pertinent to note here that, from the said entire evidence of the accused it clearly appears that he has falsely implicated the accused persons in present case. It is to be noted here that, from the said evidence of the complainant further reveals that the accused persons have issued the cheque in question as a security to said [ENTITY]. It is pertinent to note here that, the accused persons have taken a probable and acceptable defenses and proved the same with cogent evidence. It is pertinent to note here that, from overall evidence of the complainant it clearly appears that the accused have not issued the cheque in question to discharge their legally enforceable debt.
11. It is significant to note here that, the Learned counsel for the accused has vehemently canvassed the arguments that the cheque in question issued is in the name of Sri Mookambika Fisheries and in view of the same in present case the provision of [SECTION] of the [ACT], will not attract.
12. It is significant to note here that, the Learned counsel for the accused in support of aforesaid contentions has mainly relied upon the following decision:-
Sri. [ENTITY] -vs- [ENTITY], reported in 2010 KAR 2424 wherein it has held that [ACT], 1881 - [SECTION] - Offence under - Complaint - Order of acquittal - Appealed against - Issue of cheque by the accused which was not in his name but was in the name of Milk Producers Co- operative Society, -Whether the provisions of [SECTION] gets attracts - Held, A perusal of [SECTION] of the Act reveals that the cheque must be drawn by the accused on an account maintained by him with the Banker. The accused has drawn the cheque which was not in his name but was in the name of Milk Producers Co-operative Society. Therefore, the provisions of [SECTION] of the Act are not fulfilled and this fact was considered by the Trial Court while granting an order of acquittal - FURTHER HELD, A Co-operative Society is an independent person and the accused has issued the cheque of the Co-operative Society in his personal capacity and handed over the same to the Complainant.
The account is not in his name. So in the absence of an account in the name of the accused, in his individual capacity, any cheque of the Co-operative Society cannot be said to be the cheque of the accused pertaining to his account in the Bank and the provisions of [SECTION] of [ACT] are not attracted in the case on hand - Order of acquittal is justified.
13. It is pertinent to note here that, from perusal of EX.P1 it appears that it was issued in the name of Mookambika Fisheries. It is pertinent to note here that, any cheque pertaining to the company or society cannot be said to be the cheque of the accused and in view of the same the provision of [SECTION] of the [ACT], will not attract. It is pertinent to note here that, the dictum rendered in said decision is aptly applicable to present case. It is pertinent to note here that, in view of My above all findings and without much discussion I hold that, the complainant has utterly failed to prove that the accused to discharge their legally enforceable debt have issued in his favour EX.P1. In view of the same, point No.1 is answered in the [ACT].
14 Point No.2:- It is specific contention of the complainant that, on 07.06.2017 he presented the EX.P1 for encashment in Axis Bank, Basaveshwaranagara branch, Bengaluru and on 09.06.2017 the same was returned with the shara as 'Account closed'.
It is pertinent to note here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Cheque return memo issued by the said Bank at EX.P2.
It is to be noted here that, as discussed on point No.1, the complainant has utterly failed to prove that the accused to discharge their legally enforceable debt have issued in his favour EX.P1 and if such being the case, the question of committing the offence by the accused under [SECTION] of the [ACT], do not arise at all. It is pertinent to note here that, in view of My above all findings and without much discussion I hold that, the complainant has failed to prove that the accused have committed the offence punishable under [SECTION] of the [ACT]. In view of the same, point no.2 is answered in the [ACT].
15. Point No.4:-That, as discussed on points No.1 and 2, I proceed to pass the following:-
ORDER That, acting under [SECTION] of [ACT], the accused No.1 and 2 are acquitted for the offence punishable under [SECTION] of the [ACT].
That, the accused No.1 and 2 shall comply with provisions of [SECTION] of [ACT]. (Dictated to stenographer, transcribed by her, revised by me and then pronounced by me in the open court on this the 20th day of September 2018) ([ENTITY]) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Shri [ENTITY] s/o [ENTITY]. K.V. List of exhibits marked on behalf of complainant:-
Ex.P1 : Original cheque; Ex.P1(a) : Signature of the accused; Ex.P2 : Cheque return memo; Ex.P3 : Legal notice dated:-22.06.2017; Ex.P3(a) : Two Postal receipts; Ex.P4 : RPAD cover and Ex.P5 : Reply notice dated:-10.07.2017.
List of witnesses examined on behalf of the accused:-
- Nil -
List of exhibits marked on behalf of the accused:-
- Nil -
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.