Y R Venugopal Vs Manjunath Reddy P

Y R VENUGOPAL S/O Y V RAMASANJEEVAIAH AEGD ABOUT 56 YEARS No. 220, YADALAM NAGAR SUBRAMANYAPURA MAIN ROAD BANGALORE – 560 061. DECEASED REPRESENTED BY HIS LR’s.

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SMT. KUSUMA W/O LATE Y R VENUGOPAL

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AGED ABOUT 62 YEARS

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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No.220, SUBRAMANYAPURA MAIN ROAD

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NEXT TO SAPTHAGIRI MEDICALS

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YADALAMNAGAR, BANGALORE SOUTH BANGALORE – 560 061.

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BHARATH BABU V

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S/O LATE Y R VENUGOPAL AGED ABOUT 41 YEARS No.220, SUBRAMANYAPURA MAIN ROAD NEXT TO SAPTHAGIRI MEDICALS YADALAMNAGAR, BANGALORE SOUTH BANGALORE – 560 061.

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SRI HEMANTH V S/O LATE Y R VENUGOPAL AGED ABOUT 39 YEARS No.220, SUBRAMANYAPURA MAIN ROAD NEXT TO SAPTHAGIRI MEDICALS YADALAMNAGAR, BANGALORE SOUTH BANGALORE – 560 061.

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…APPELLANTS

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(BY SRI B K NARENDRA BABU, ADVOCATE)

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AND:

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MANJUNATH REDDY P AGED ABOUT 46 YEARS PROPRIETOR OF M/S VINTAGE SHELTERS No. 25, SAMPOORNA SIRI ITI LAYOUT, HSR BANGALORE – 560 068.

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…RESPONDENT

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(BY SRI VISHWANATH M P, ADVOCATE)

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THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED:7.1.2015, PASSED BY THE XXII ACMM, BANGALORE CITY, IN C.C.No.13139/12 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC.,

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IN CRL.A No. 148/2015

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BETWEEN:

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Y R VENUGOPAL S/O Y V RAMASANJEEVAIAH AEGD ABOUT 56 YEARS No. 220, YADALAM NAGAR SUBRAMANYAPURA MAIN ROAD BANGALORE – 560 061. DECEASED REPRESENTED BY HIS LR’s.

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SMT. KUSUMA W/O LATE Y R VENUGOPAL AGED ABOUT 62 YEARS No.220, SUBRAMANYAPURA MAIN ROAD NEXT TO SAPTHAGIRI MEDICALS YADALAMNAGAR, BANGALORE SOUTH BANGALORE – 560 061.

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BHARATH BABU V

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S/O LATE Y R VENUGOPAL AGED ABOUT 41 YEARS No.220, SUBRAMANYAPURA MAIN ROAD NEXT TO SAPTHAGIRI MEDICALS YADALAMNAGAR, BANGALORE SOUTH BANGALORE – 560 061.

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SRI HEMANTH V S/O LATE Y R VENUGOPAL AGED ABOUT 39 YEARS No.220, SUBRAMANYAPURA MAIN ROAD NEXT TO SAPTHAGIRI MEDICALS YADALAMNAGAR, BANGALORE SOUTH BANGALORE – 560 061.

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…APPELLANTS

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(BY SRI B K NARENDRA BABU, ADVOCATE)

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AND:

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MANJUNATH REDDY P AGED ABOUT 46 YEARS PROPRIETOR OF M/s. VINTAGE SHELTERS No. 25, SAMPOORNA SIRI ITI LAYOUT, HSR BANGALORE -560 068.

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...RESPONDENT

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(BY SRI VISHWANATH M P, ADVOCATE)

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THIS CRL.A. IS FILED UNDER SECTION 378(4) Cr.P.C PRAYING TO SET ASIDE THE ORDER DATED:7.1.2015, PASSED BY THE XXII ACMM, BANGALORE CITY, IN C.C.No.19531/13 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND ETC.,

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THESE APPEALS COMING ON FOR HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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Both appeals are filed by the complainant challenging

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the judgments of acquittals passed in C.C.No.13139/2012

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and C.C.19531/2012 by the XXII Chief Metropolitan Magistrate, Bengaluru, wherein the respondent –accused has been acquitted for offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as “N.I. Act” for brevity).

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The case of complainant’s in both criminal cases in brief is that

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The respondent –accused is his friend and he is land developer and use to form layout and sell the same to the intending purchasers. For formation of the layout and

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development the respondent –accused was in need of money and for that he requested the appellant – complainant to invest money and for that he has get site measuring 60 x40 ft in the layout to be formed by the respondent –accused. Considering the same, the appellant –complainant agreed and gave Rs.5,00,000/- on 31.10.2007 and the respondent –accused executed sale agreement dated 31.10.2007. It is further case of the complainant that thereafter, the complainant has pad Rs.3,00,000/on 15.01.2008, Rs.1,00,000/on 24.04.2008, Rs.3,00,000/- on 18.07.2008, Rs.1,00,000/on 22.10.2008 and Rs.3,00,000/- on 25.01.2009 and endorsement has been made on the back of the first page of the sale agreement by the accused for having received the said amount. It is further case of the complainant that accused did not form the layout and therefore, he agreed to return the amount given by the complainant in sum of Rs.16,00,000/- along with compensation /interest of

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Rs.7,50,000/-. In that regard the respondent –accused

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has issued seven cheques, details of which are as under:

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Sl. No	Cheque Nos.	Date	Amount in Rs.	Bank Name
1	534658	08.09.2011	5 lakhs	Andra Bank, HSR Layout Branch, Bengaluru
2	153769	17.09.2011	3 lakhs	-do-
3	151947	26.09.2011	1 lakhs	-do-
4	530341	08.10.2011	3 lakhs	-do-
5	530336	17.10.2011	1 lakhs	-do-
6	533198	26.10.2011	3 lakhs	-do-
7	170004	08.11.2011	7.5 lakhs	-do-

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The complainant presented all those seven cheques

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for encashment and they came to be dishonoured for the reason “insufficient funds”. The complainant got issued legal notice to the respondent –accused demanding to pay cheques amount. Inspite of service of notice the respondent –accused has neither paid cheques amount nor issued any reply to the notice. Therefore, the appellant - complainant has filed two complaints one in respect of six

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cheques total amount of Rs.16,00,000/- and another in respect of one cheque for a sum of Rs.7,50,000/-.

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Learned Magistrate took cognizance and registered case in C.C. No.13139/2012 and C.C. No.19531/2012 against the respondent –accused for offence punishable under Section 138 of N.I. Act. The plea

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of the respondent –accused has been recorded. The complainant in order to prove his case has examined himself as P.W.1 and got marked documents as Ex.P1 to P8 in C.C.No.13139/2012 and Ex.P1 to P18 in C.C.No.19531/2012. The statement of respondent - accused came to be recorded under Section 313 of Cr.P.C. The respondent –accused did not choose to lead defence evidence. Learned Magistrate after hearing on both sides has formulated points for consideration and passed impugned judgments of acquittal . The said judgments of acquittal passed in both cases have been challenged by the complainant in these two appeals.

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Heard learned counsel for the appellant and

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learned counsel for the respondent in both appeals.

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Learned counsel for the appellant –complainant would contend that the appellant –complainant has invested Rs.16,00,000/- for allotment of a site in the layout to be formed by the respondent –accused and in that regard the respondent –accused has executed the sale agreement dated 31.10.2007. The respondent - accused did not form the layout and therefore, he agreed to refund the amount invested by the appellant – complainant in sum of Rs.16,00,000/- and Rs.7,50,000/as compensation /interest. He submits that in that regard he issued seven cheques. The signature on the said cheques have not been disputed by the respondent – accused and therefore, the presumption has to be drawn under Section 139 of the N.I Act that cheques have been issued for making payment of legally enforceable liability.

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The said presumption has not been rebutted by the respondent –accused. The bare contention of the

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respondent –accused was that cheques have been taken by the son of the complainant while he was working in the office and they have been misused by the complainant as there was threat on the son of the complainant of taking action by the accused for misappropriation of huge amount. The said defence has not been established. The respondent –accused has not sent any reply to the legal notice putting forth his defence at earliest. The respondent –accused has not entered into witness box to establish his contentions. Considering all these aspects, the appellant –complainant has established that the respondent –accused has committed offence punishable under Section 138 of the N.I Act. Without considering all these aspects, learned Magistrate has erred in acquitting the respondent –accused. With these, he prays to allow the appeals and convict the respondent –accused for offence punishable under Section 138 of the N.I. Act.

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Learned counsel for the respondent –accused would contend that the respondent –accused has denied

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execution of sale agreement dated 31.10.2007 and he has not issued cheques for making payment of legally enforceable liability. The respondent –accused has taken defence that the son of the complainant is working in the firm of the accused and he has misused signed cheques of the respondent –accused. P.W.1 in his cross examination has admitted that the son of the complainant is working in the firm of the respondent –accused that itself will establish defence of the respondent –accused. He further contended that the agreement is in the year of 2007 and alleged cheques are issued in the year 2011 i.e. 04 years of sale agreement. The sale consideration has not been stated in sale agreement. Even though period prescribed for execution of the sale deed is 180 days, no action has taken by the appellant –complainant to get specific performance of the said sale agreement. The total sale consideration has not been stated in the sale agreement. The witnesses of the sale agreement have not been examined. The appellant –complainant has not

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established his capacity to invest Rs.16,00,000/-. Considering all these aspects, the respondent –accused has rebutted the presumption drawn under Section 139 of the N.I Act. Considering these aspects, learned Magistrate has rightly passed the impugned judgments of acquittal. With these, he prays for dismissal of appeals.

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Having heard learned counsels, the Court has perused the impugned judgment and trial Court records. Considering the grounds urged, the points arises for my consideration is

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1. “Whether learned Magistrate has erred in passing the judgment of acquittal of respondent –accused for offence punishable under Section 138 of N.I. Act in C.C.No.19531/2012.”?

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2. “Whether learned Magistrate has erred in passing the judgment of acquittal of respondent –accused for offence punishable under Section 138 of N.I. Act in C.C.No.13139/2012.”?

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My answer to the point No.1 is in the affirmative and Point No. 2 is in the Negative for the following reasons.

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It is specific case of the appellant -complainant that there was sale agreement between the appellant - complainant and respondent -accused on 31.10.2007 with regard to a site in layout to be formed by the respondent –accused. Under the said sale agreement the appellant – complainant has paid Rs.5,00,000/- on the date of agreement and subsequently paid Rs.3,00,000/- on 15.01.2008, Rs.1,00,000/- on 24.04.2008, Rs.3,00,000/on 18.07.2008, Rs.1,00,000/on 22.10.2008 and Rs.3,00,000/- on 25.01.2009. The original of the said sale agreement is marked as Ex.P7 in C.C.No.13139/2012. Photo copy of the said sale agreement is marked as Ex.P17 in C.C.No.19531/2012. On perusal of the back of first page of Ex.P7 there are 05 endorsements for having paid the above stated amounts in cash by the appellant – complainant. Below the said endorsement there is seal

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and signature of Vintage Shelters by it’s Proprietor. The respondent –accused has not denied that he is the Proprietor of Vintage Shelters. The said stamp paper – Ex.P7 has been purchased by Vintage Shelters and there is seal of Vintage Shelters on the said stamp papers having purchased by Vintage Shelters. Even there are signatures and seal of Vintage Shelters’s Proprietor on each page of Ex.P7 –sale agreement. The respondent –accused has disputed that he executing the said sale agreement. The respondent –accused has not disputed his signature on the said seven cheques.

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It is specific contention of the respondent –

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accused that son of the accused was working in his firm and he has misappropriated a sum of Rs.1 crore 75 lakhs and son of the accused has misused seven signed cheques given by the respondent –accused to him. P.W.1 in his cross examination has admitted that his son was working in the firm of the respondent –accused but clarified that he was working under a Auditor and for audit work he went to

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the firm of respondent –accused. P.W.1 has denied the suggestion that son of the complainant has misappropriated Rs.1 crore 75 lakhs and he has misused signed cheques given by the respondent –accused. The respondent –accused has not choosen to file any complaint againt the son of the complainant for having misappropriation of Rs.1 crore 75 lakhs and for misusing his seven signed cheques. In order to establish the said contention the respondent –accused has not lead any defence evidence. The very fact of the not placing oral or documentary evidence on record regarding misappropriation by son of the appellant –complainant and misusing of seven signed cheques of the accused, itself indicate that the said defence said up by the respondent – accused is not true and it is not established. More so the respondent –accused even after service of legal notice in both cases has not chosen to send reply containing his contention at initial stage.

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Considering these aspects, the respondent -

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accused has failed to rebut the presumption that six cheques issued in C.C.No.19531/2012 for making payment of legally enforceable liability. The total amount of the said six cheques is Rs.16,00,000/- which are at EX.P1 to 6 in C.C.No.19531/2012. The said amount of Rs.16,00,000/is amount paid by the appellant –complainant to the respondent –accused on different dates under sale agreement dated 31.10.2007 which is at Ex.P7.

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Cheque –Ex.P1 in C.C.No.13139/2012 is for Rs.7,50,000/-. It is case of the appellant –complainant that the said cheque is issued in order to making payment of interest /compensation for having utilized money of the appellant –complainant. In order to establish the said aspect except oral evidence no materials are placed on record by the appellant –complainant that the respondent –accused has agreed to pay interest /compensation in sum of Rs.7,50,000/-. The complainant has not produced any documentary evidence with regard to the respondent –

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accused having agreed to pay Rs.7,50,000/- towards interest /compensation to the appellant –complainant. Therefore, the cheque –Ex.P1 for Rs.7,50,000/- in C.C. No.13139/2012 is not issued for making payment of legally enforceable liability. Considering the said aspect, the appellant –complainant has failed to prove that the respondent –accused in C.C.No.13139/2012 has committed offence punishable under Section 138 of the N.I Act as cheque issued is not for making payment of legally enforceable liability.

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In C.C.No.19531/2012, cheques at EX.P1 to 6 are issued for making payment of legally enforceable liability. The said cheques are dishonoured for want of funds in the account of the respondent –accused. The statutory notice has been issued within the statutory period and it has been served on the respondent – accused. Inspite of service of notice, the respondent – accused has not chosen to pay the amount of cheques to the appellant – complainant. Therefore, the respondent –

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accused has committed the offence punishable under Section 138 of the N.I. Act. Without considering these aspects, the learned Magistrate has erred in passing the judgment of acquittal in C.C.No.19531/2012. Even though the reasons assigned by the learned Magistrate for acquittal of the respondent – accused in C.C.No.13139/2012 are not what discussed as noted supra, but for the reasons stated supra , the complainant has not established commission of the offence by the respondent – accused for the offence under Section 138 of the N.I. Act in C.C.No.13139/2012. Therefore, the respondent – accused requires to be acquitted in C.C.No.13139/2012. In the result, the following;

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ORDER

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i) Crl.A.No.149/2015 is dismissed .

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ii) The judgment of acquittal dated 07.01.2015 passed in C.C.No.13139/2012 by the XXII Additional Chief Metropolitan Magistrate, Bengaluru is affirmed.

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iii) Crl.A.No.148/2015 is allowed .

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iv) The judgment of acquittal dated 07.01.2015 passed in C.C.No.19531/2012 by the XXII Additional Chief Metropolitan Magistrate, Bengaluru is set-aside.

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v) The respondent – accused is convicted for the offence punishable under Section 138 of the N.I. Act in C.C.No.19531/2012 and he is sentenced to pay fine of Rs.16,50,000/- and in default of payment of the said fine, to undergo simple imprisonment for a period of six months.

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vi) Out of the said fine amount Rs.16,00,000/- is ordered to be paid as compensation to the appellant – complainant.

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vii) The respondent – accused has to deposit the said amount within two months from this day.

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Sd/-

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(SHIVASHANKAR AMARANNAVAR) JUDGE

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DSP, GH

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List No.: 1 Sl No.: 19

Y R Venugopal v. Manjunath Reddy P

Case brief

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Y R Venugopal v. Manjunath Reddy P

Case brief

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