P.GURUSWAMY Vs. S.RAJU

JUDGEMENT

(1.) In the complaint filed by the present respondent under Section 200 of Code of Criminal Procedure, 1973, against the present petitioners for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (hereinafter for brevity referred to as 'N.I.Act'), the learned XXII Addl.Chief Metropolitan Magistrate & XXIV Addl.Small Causes Judge, Bengaluru City (hereinafter for brevity referred to as 'trial Court'), by the judgment of conviction and order on sentence dated 14.11.2006, passed in C.C.No.15773/2003, convicted the accused for the said offence and sentenced him accordingly.

(2.) The summary of the case of the complainant in the trial Court is that accused No.1 is the Proprietor of accused No.2, who was doing business in transporting heavy equipments. The accused came in contact with the complainant in his business relations and they developed a good and cordial relationship. At the instance of the accused, the complainant agreed to associate with him in the business. Since the accused, who was based at Chennai, wanted to start a Branch in Bengaluru, has offered for taking the complainant as a General Manager of Bengaluru Branch on a monthly salary of Rs.20,000/- per month or 50% of the profit of business operations in Bengaluru, which was agreed by the complainant. The accused induced the complainant to deposit a sum of Rs.10 lakhs, which amount the complainant had with him earned from his previous employment with M/s.Deutesche Babcock Ltd., The accused offered to pay interest on the said sum at the rate of 2.5% per month i.e., Rs.25,000/- per month. The said amount of Rs.10 lakhs was to be treated as a fixed security deposit as complainant's share of capital. They also contemplated to have a Partnership Firm between them. The said sum of Rs.10 lakhs was paid to the accused by the complainant on 4.4.1998, in consideration of the same, the accused issued a receipt of the even date. He also issued an open cheque to the complainant for the similar sum of Rs.10 lakhs under cheque bearing No.655045, drawn on Canara Bank, ICE House, Chennai, with an authority to the complainant to present the same in the event of breach of agreement between them regarding the payment of interest on the said sum. The accused paid the interest on the said security deposit only for few months. Thereafter, he stopped paying the interest on the security deposit, as well the agreed salary to the complainant at the rate of Rs.20,000/- per month or 50% of the profit. This made the complainant to tender his resignation on 28.6.2003. As agreed between them, the complainant presented the said cheque issued by the accused for a sum of Rs.10 lakhs for encashment through his banker on 28.6.2003, however, the cheque returned dishonoured with an endorsement dated 2.7.2003 stating that 'the account of the drawer was closed'. The complainant demanding the cheque amount, issued a legal notice dated 17.7.2003 both by Registered Post Acknowledgement Due and under Certificate of Posting. The accused gave an untenable reply dated 1.8.2003 to the notice, however, did not paid the cheque amount. This constrained the complainant to institute a criminal case against the accused for the offence punishable under Section 138 of N.I.Act.

(3.) The accused appeared through his counsel and contested the matter in the trial Court. In order to prove his case, the complainant examined himself as PW-1 and got marked documents from Exs.P-1 to P-22. The accused No.1 got himself examined as DW-1 and got marked documents from Exs.D-1 to D-8.