Bangalore District Court
Ganesh Saw Mills vs P.Giriraju on 28 January, 2020
IN THE COURT OF THE JUDGE COURT OF SMALL
CAUSES AND XXVI A.C.M.M, AT BENGALURU
Present: Abdul Khadar, B.A., LL.B.,
JUDGE, Court Of Small Causes,
Bengaluru
Dated this the 28th day of January 2020
C.C. No: 50101/2017
Complainant: Ganesh Saw Mills
Partnership Firm
Rptd by its Partner
Sri Kantilal G.Patel
No.275/4, New Timber Yard
Layout, Mysore Road,
Bengaluru-26.
(By Sri. D.H.Mokhashi- Advocate)
-Vs-
Accused : P.Giriraju
Aged about 58years
No.25, 2nd Main,
2nd Cross, Dollars colony
Bangalore-94.
(By Sri.D.C.Prakash- Advocate)
JUDGMENT
The complainant filed the private complaint under Sec. 200 of Cr.P.C., against the accused for having committed an offence punishable under Sec.138 of Negotiable Instruments Act.
SCCH9 2 CC.50101/20172. It is the case of the complainant that the accused being Civil contractor carrying on interior works to several of his clients used to purchase wood, plywood, lamination sheets and various other allied items from him. He being a dealer has supplied to the accused through invoice from 2011. The accused not paid the due to the complainant. The accused pleaded his inability to pay the amount since long time and ultimately, the accused issued cheque bearing No. 798263 dated 6-11-2017 for Rs.3,69,702/-drawn on Corporation Bank, Malleshwaram 18th Cross Branch, Bengaluru towards part payment of his account due to him. The accused assured that he is going to complete the payment of Rs.11,78,720/- within a short span from November 2017. The complainant assured that the said cheque would be honoured on its presentation. The complainant presented the said cheque through his banker Canara Bank, Chamarjapet Branch, Bengaluru, which came to be dishonoured with an endorsement as "Funds Insufficient" on 8-11-2017. Immediately the said fact has been intimated to the accused about dishonour of cheque and for payment of cheque amount with interest, but the accused not paid the cheque amount. Hence the Complainant issued legal notice on 17-11-2017 by RPAD to the accused calling upon him to pay amount covered under cheque within 15 days SCCH9 3 CC.50101/2017 from the date of receipt of notice and notice sent through RPAD has been refused to accept the notice and returned back with postal shara "I/D left" on 25-11- 2017. The accused has failed to make payment of cheque or comply with the demands. Hence, he committed an offence punishable under Sec.138 of N.I. Act. Accordingly, the complainant has filed the present complaint to take action against the accused in accordance with law and to award suitable compensation in the interest of justice and equity.
3. Being satisfied with the complaint averments, this Court has taken cognizance and after recording sworn statement being satisfied with the prima-facie case, issued summons to the accused compelling his appearance. Accused appeared through his counsel before this Court and got enlarged on bail. Substance of accusation was read over to the accused. Accused pleaded not guilty for the offence punishable u/s.138 of NI Act. Hence, this Court called upon the complainant to prove his case.
4. In support of the case, the complainant himself examined as P.W.1 and got marked 9 documents as per Ex.P1 to P.9. During the course of cross examination of DW.1 two documents were got marked by confrontation as Ex.P10 and P11. After closure of evidence of Complainant, the accused was examined as SCCH9 4 CC.50101/2017 contemplated U/s.313 Cr.P.C and his statement was recorded. The accused, totally denied the case of the complainant and he has defense evidence. Accused himself examined as DW1 and no documents marked on his behalf.
5. Heard arguments canvassed by the learned counsel for the complainant and the accused and perused the documents available on records and citations produced.
6. Now the points that arise for my consideration are:
1.Whether the complainant proves that, the accused has issued cheque bearing No.798263 dated 6-11-2017 for Rs.3,69,702/-drawn on Corporation Bank, Malleshwaram Branch, Bengaluru, towards discharge of his legal liability and when the said cheque presented for encashment, which came to be dishonoured with an endorsement as "Funds Insufficient" after issuance of legal notice, he fails to repay dishonoured cheque amount within the stipulated period and thereby committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
7. My findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : As per the final order below for the following:SCCH9 5 CC.50101/2017
REASONS Point No.1:-
8. Under Section 138 of N.I. Act, the offence will constitute only, if the cheque was issued towards discharge of legal liability and it was dishonored for Funds Insufficient in the credit of the accused. PW.1 in the affidavit by way of chief examination has reiterated the versions of complaint. I would not like to reproduce the same to avoid repetition of facts since the complainant has explained the details of complaint averments in chief examination. The complainant has got marked 11 documents at Ex.P1 to P.11.
9. So far as the documents are concerned, Ex.P1 is the cheque bearing No.798263 dated 6-11-2017 for Rs.3,69,702/-drawn on Corporation Bank, Mallesh- waram 18th cross Branch, Bengaluru. Ex.P1(a) is the accused signature. Ex.P2 is the Bank Endorsement issued by the Canara bank, Chamarajpet Branch, Bengaluru, stating that, the cheque was not honoured for the reason of "Funds Insufficient" on 8-11-2017. Ex.P3 to P.5 are the invoices of complainant about sending of teakwood logs to the accused. Ex.P.6 is the legal notice, wherein complainant called upon the accused to make payment of Rs.3,69,702/- within 15 days from the date of receipt of notice with interest. Ex.P.7 is the postal receipt. Ex.P.8 is the courier receipt.
SCCH9 6 CC.50101/2017Ex.P.9 is the unserved postal cover returned with an endorsement as "I/D left" Ex.P.10 and P.11 are cheques and Ex.P10(a) and Ex.P11(a) are the signatures of accused. According to the learned counsel for the complainant, when the issuance of cheque and his signature are admitted, then the presumption as required under Section 139 of N.I. Act comes to the aid of the complainant. It is the turn of the accused to explain or rebut the said presumption by raising a probable defence.
10. According to the evidence of P.W.1, the accused being Civil contractor carrying on interior works to several of his clients used to purchase wood, plywood, lamination sheets and various other allied items from him. He being a dealer has supplied teak wood logs and other lamination materials to the accused through invoice in the year 2012. The accused not paid the due to the complainant. The accused pleaded his inability to pay the amount since long time and ultimately, towards discharge of his liability, the accused issued cheque Ex.P1 cheque in his favour and the same was made use of in the present case. Therefore there shall be initial burden on the complainant to prove that he had supplied the materials to the accused without taking any other documents except cheque. Further he drew attention of the Court to Sec.139 of N.I. Act, SCCH9 7 CC.50101/2017 which reads thus:- Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Sec.138 for the discharge, in whole or in part, of any debt or other liability.
11. So when the cross examination of P.W.1 indicates that accused has not issued the alleged cheque in question to the complainant in the year 2017. Accused friend by name Gururaj was doing Road contract work and his diary was misplaced. In that diary, he kept Ex.P.1 cheque by signing to give to the Gururaj, but he do not know how the diary was gone to the hands of complainant. He asked Gururaj to bring that diary in the year 2016, but he told that he kept the diary some-where and he will return the same after tracing it. Now, Gururaj is no more. The complainant made use the cheque to file this false case against him. Accused admits Ex.P1 cheque belongs to his account and his signature at Ex.P1(a). It is for the complainant to prove he was doing Timber business which is registered firm. In his firm, there are four partners by name Gangadas J.Patel, Janyanthilal G.Patel and Vijayakumar K.Patel. The complainant supplied the teak wood logs and other wood at the time of construction of the house of accused. The accused not paid the amount outstanding to him since 2011. The SCCH9 8 CC.50101/2017 complainant has not produced any documents with regard to their partnership firm consisting of four partners. The complainant not produced inward and out ward registers with regard to the supply of wood materials to the accused except invoice. The accused issued the cheque in question in the name of firm. It appears highly ridiculous for the reason that person who runs firm, well versed in litigation and also he being a one of the partner of the Sri Ganesh Saw Mills, not produced partnership deed and the authorization certificate given by the other partners to the complainant to file the complaint and to recover the dues from the accused.
12. In this regard, the court has to see whether the accused has been successful in rebutting the presumption through cross-examination of PW-1 and his evidence. In support of his defence, the accused cross examined PW-1 wherein the PW.1 categorically admits the suggestions posed to him. PW-1 deposed that he studied 1st PUC and doing Timber business which is registered firm. In his firm, there are four partners including him they are Gangadas J.Patel, Janyanthilal G.Patel and Vijayakumar K.Patel. PW-1 deposed that the accounts (debit and credits) of the firm has been look after by their writer Yogesh. He has maintained inward and outward ledgers and he also SCCH9 9 CC.50101/2017 enters the materials supplied to the customers in that ledger. He is paying VAT to the Commercial Taxes Department. He has not produced documents for filing of IT returns before the court. He knows the accused since 20years through Chinnapparaju. The accused is a PWD contractor. The accused purchased wood from him. He has produced invoice dated 6-4-2012. PW-1 deposed that at the time of construction of house of accused, he supplied Thega wood and lamination sheets to him under invoice. PW-1 admits that he will supply the materials to the customers, after receipt of amount of goods, he stated that, the accused was known to him, therefore, he supplied the materials on credit basis during 2012. He denied that the accused is not due to his firm and he has not produced any documents before the court to show that, the accused is due to him. He denied that the accused issued cheque for Rs.3,69,702/- before purchase of materials from him as advance. PW-1 deposed that the accused issued the cheque on 7-11-2017. He denied that the accused has already paid the amount due to him, but he has not returned the cheque in question after payment of amount by stating that the cheque is misplaced and he will return the same after tracing it. PW-1 deposed that if the company purchased the goods, they will issue purchase order, but they issued invoice to the accused.
SCCH9 10 CC.50101/2017They have not received any acknowledgement from the accused. He denied that there was no wood transaction held between him and the accused. He is doing timber business since 1980 and in that connection, he has not produced licence before the court. He denied that he is not entitled to claim money from the accused. He denied that he has filed false case against the accused and deposing falsely before the court.
13. On perusal of cross-examination of PW.1, it clearly demonstrates that the story of the complainant is doubtful and he has not supplied the teak wood logs and other items as stated by him to the accused in the year 2012 under invoice No.5375 and 5376. The complainant has not produced any cogent or documentary evidence to show that he is running Sri Ganesh Saw Mills under partnership firm had supplied the teak wood logs to the accused under invoices from 2012 and the accused not paid the amount for the materials supplied to him, therefore, he issued Ex.P.1 in the name of Ganesh Saw Mills for discharge of his liability. On the basis of chief examination as well as cross-examination of PW.1, the case of complainant creates doubt, whether the complainant had supplied the wood items to the accused in the year 2011 for Rs.11,78,720/-. Towards part payment of said amount, accused issued Ex.P.1 in the name of firm in November SCCH9 11 CC.50101/2017 2017. On perusal of cross examination of PW-1, it appears that PW.1 had supplied the teak wood logs and materials to the accused for the construction of his house under invoices by taking cheque, can it believed that unless the complainant proves that he is running Sri Ganesh Saw Mills under the partnership firm, therefore, case of the complainant cannot be accepted.
14. The cross-examination of PW-1 is reproduced as it is:-
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15. On perusal of evidence of PW-1, it is clear that, the complainant has produced partnership deed, inward outward register, IT returns and not disclosed the due amount in IT returns for the assessment year 2012. It is SCCH9 12 CC.50101/2017 admitted fact that the complainant was supplied the timber logs to the accused without obtaining purchase order, but his contention is that the accused issued the alleged cheque in question on 6-11-2017 for Rs.3,69,702/-. Further he admits that before completion of three years, the accused not executed receipt nor made any payment towards alleged cheque amount to him. This admission makes it clear that within the period of three years, no amount is paid towards purchase of teak wood logs. The evidence of PW-1 also discloses that, after the lapse of three years, the accused has not executed any acknowledgment of debt to him nor made any payments before expiration of limitation towards dues. The complainant got issued legal notice to the accused through RPAD which came to be returned with postal shara as I/D left on 25-11- 2017. The complainant not complied the requirements of section 138(b) of N.I.Act. The evidence also discloses that there is no legally recoverable debt of Rs.3,69,702/- as claimed by the complainant under Ex.P1 from the accused.
16. The statutory presumption under Sec.139 of N.I. Act explains initial presumption infavour of the producer of an instrument. It says court shall presume that one instrument is handed over infavour of another person only for the purpose of recover of existed debt.
SCCH9 13 CC.50101/2017Therefore, the statutory presumption explained under Sec.139 of N.I. Act always provides presumption infavour of the complainant. But, it does not mean that the statutory presumption cannot be rebutted. The said presumption can be rebutted at the strength of strong oral and documentary evidence. Let us see the attempt of the accused to-rebut the evidence of complainant.
17. To defeat the case of the complainant, accused himself examined as DW-1, wherein he deposed that he do not know the complainant. No transaction held between himself and the complainant. He has not issued the cheque in question to the complainant. Accused friend by name Gururaj was doing Road contract work and his diary was misplaced in the house of Gururaj. In that diary, he kept Ex.P.1 singed to give to the Gururaj, but the diary misplaced and he do not know how the diary was gone to the hands of complainant. He asked Gururaj to bring that diary in the year 2016, but he told that he kept the diary somewhere and he will return the same after tracing it. Now, the said Gururaj is no more. The notice sent by the complainant is not served on him. Hence, prayed to acquit him by dismissing the complaint.
18. The counsel for the complainant cross examined D.W.1, but nothing has been elicited from the SCCH9 14 CC.50101/2017 mouth of DW.1 that there is a legally recoverable debt under Ex.P1 cheque. He deposed that he residing in his own house. The Gururaj house is situated at 2nd Cross, 2nd Main, Bopasandra, Sanjaynagar, Bengaluru. In the year 2013 he left his diary in the house of Gururaj. The said diary was misplaced and Gururaj told him after tracing it, he will return the same. The Gururaj died during the month of June 2016. He has not issued notice to the Gururaj for return of diary. He asked his family members about diary after he received notice from the court. He has not given letter to the bank for stop payment of the alleged cheque in question. He has not purchased the wood and lamination from the complainant. He do not know that the complainant sent notice to the address of accused through RPAD as well as courier. He admits the address shown in Ex.P.6 is correct. He denied that the complainant sent the notice to the correct address of accused but, he refused to receive the same. He deposed that he has not received any intimation. He appeared before the court after receipt of warrant. Ex.P1(a) is his signature. He denied signature found in Ex.P.3 belongs to him. The bank transaction of Ex.P.1 is not in operation. He has not enquired in the bank about presentation of Ex.P.1 for encashment by the complainant. He admits his signature in the Vakalath, Plea as well as in 313 SCCH9 15 CC.50101/2017 statements. He denied that he is deposing falsely before the court even though he purchased the wood from the complainant after signing Ex.P.3. DW-1 deposed that he has no idea of lodging complaint against the complainant to the police about misplace of cheque in question. He denied that he himself given Ex.P.1 to the complainant towards discharge of his liability and he is deposing falsely before the court and still he is doing/having transaction with the complainant.
19. On perusal of cross of DW-1, it clearly show that there was no teak wood logs and other materials transaction held between the complainant and accused and Ex.P1 itself shows that the accused issued alleged cheque in question kept in the diary of Gururaj to hand over the same to somebody, the accused do not know how the accused in question gone to the hands of complainant and made use to file this false case against him.
20. The counsel for the accused argued that, the complaint itself is not maintainable, since the complainant is a partnership firm, all the partners were not arrived as parties to the compliant and no authorization letter is produced by the PW.1 to show that he was authorized to file compliant on behalf of Ganesh Saw Mills and recover the dues and he has not produced any documents to show that he is the partner SCCH9 16 CC.50101/2017 of said firm. To substantiate his arguments he relied a judgment in Criminal Appeal No. 545/2010 in the case of K.V. Subba Reddy V/s N. Raghava Reddy, wherein it is held that, if the averments of complaint and the evidence of complainant are accepted at their face value dishonored cheque was issued on 30-10- 2001 to discharge the debt, which had become due on 20-05-1997. Therefore I hold dishonored cheque was issued to discharge time barred debt.
2. Criminal Appeal No. 29 of 1998 in the case of Ashwini Satish Bhat V/s Jeevan Divakar Lollenkar and Ors., wherein it is held that, It is in the circumstances that the Magistrate had come to the conclusion that the dishonoured cheque in question cannot be treated as acknowledgement under section 18 of the Limitation Act, since the acknowledgement should be before the period of limitation is over and that it should be in writing. In view of this position, the Magistrate was right in coming to the conclusion that it had not been proved that the dishonoured cheque was in relation to a legally enforceable debt or liability in law. The dishonoured cheque admittedly was issued after 5 years of the said agreement dated 13th June 1991.
3. Criminal Appeal No. 505 of 1995 in the case of Girdhari Lal Rathi V/s P.T.V.
SCCH9 17 CC.50101/2017Ramanujachari and Ors., wherein it is held that, the alleged loan was advanced in the year 1985 and the cheque was issued in the year 1990. By the time, the cheque was issued, the debt appears to have been barred by limitation because no acknowledgement is alleged to have been obtained appellant from the first respondent accused before expiry of three years from the date of loan. Thus it is crystal clear that the debt was not legally enforceable at the time of issuance of the cheque and therefore, vide explanation to section 138 of the N.I. Act.
4. Cri-A-769 of 2013 in the case of Sangeetha Ahuja V/s Sunita Kapoor and CRM-A- 855-MA-2013 in the case of Sanjay Ahuja V/s Sunita Kapoor, wherein it is held that, the reasoning given by the trial Magistrate is contained in para No. 12 of the Judgment, in criminal complaint titled Sangeeta Ahuja V/s Sunita Kapoor, it is held that, no acknowledgment was obtained before the expiry of 3 years from the date of loan it was not legally enforceable at the time of issuance of cheque and the necessary ingredients of offence under section 138 of the Act were not fulfilled. It has rightly been observed that, when cheques are tendered by way of security and the same gets bounced that does not come under SCCH9 18 CC.50101/2017 the mischief of section 138 of the Negotiable Instruments Act.
5. Criminal Appeal No. 178/2017 in the case of M/s Manjuladeep Minerals V/s M/s Anjani Automobiles, wherein it is held that, Mukesh Doshi has failed to establish the fact that he is the sole proprietor of the petitioner-firm, on behalf of whom complaint was filed by him or authorized to file complaint on its behalf.
21. On perusal of cross-examination of PW.1, it clearly demonstrates that the story of the complainant is doubtful and he has not supplied the teak wood logs and other lamination materials to the accused worth Rs.11,78,720/- as stated by him . The complainant has not produced any cogent or documentary evidence to show that he is running the firm under the name and style of Sri Ganesh Saw Mills had supplied the wood materials to the accused under invoice during he year 2012. On the basis of chief examination as well as cross-examination of PW.1, the case of complainant creates doubt, whether the complainant supplied the teak wood logs and other lamination materials to the accused and the accused issued cheque in question to the complainant towards discharge of his liability.
22. It is well settled law that the act raises two presumptions. Firstly, with regard to the passing SCCH9 19 CC.50101/2017 consideration as contained in Sec.118(a) of the Act, therein and secondly a presumption that the holder of the cheque receiving the same of nature referred to the Sec.139 discharged in whole or in part any debt or other liability. Both presumptions are rebuttal in nature. Having regard to the definition of terms proved and disproved as contained in Sec.3 of the Evidence Act, the burden upon the prosecution visa-versa an accused was only expected to rebut the presumption of law on the scale of preponderance of probabilities and was not required to prove his defence beyond reasonable doubt. The chief affidavit as well as cross-examination of PW- 1, there are number of discrepancies. Hence, the case of complainant creates doubt with regard to the transaction and existence of liability of the accused to the complainant. The complainant has not discharged his burden cast upon him with regard to the running of partnership firm under the name Sri Ganesh Saw Mills and he supplied the supplied the teak wood logs and other lamination materials to the accused in the year 2012 under invoice without taking money till day. Then non-prove of his firms activities and details of his saw mills establishment also come to the rescue of the accused to raise a probable defence and rebut the presumption available under Sec.139 of N.I. Act. When once such evidence is placed by way of cross-
SCCH9 20 CC.50101/2017examination of PW-1, then, complainant must be in a position to establish/show that he is running Saw Mills under the name Sri Ganesh Saw Mills under partnership firm. Therefore, I am of the view that the complainant has utterly failed to prove that Ex.P1 cheque has been issued towards legally recoverable debt. On the other hand, the accused has been in successful in raising probable defence in the mind of court Ex.P1-cheque has not been given to the complainant; on the other hand blank signed cheque was kept in the diary of him to give it to some one has been place in the house of Gururaj. The accused did not get that diary as the Gururaj told that he kept that diary somewhere and he will return the same after tracing it. He do not know how Ex.P1 gone to the hands of complainant.
23. From the above elaborated discussion it is very much clear that, the complainant has failed to prove that accused has issued Cheque Ex.P1 in discharge of his legally payable debt for valid consideration by adducing cogent and corroborated evidence. Hence, the accused rebutted the legal presumption under section 139 and 118 of NI Act. Basically insertion of the penal provision under section 138 of NI act is to maintain a healthy business transaction between the people based on faith, belief and understanding that is why the drawer of the cheque SCCH9 21 CC.50101/2017 should not be allowed to abuse the accommodation given to him by a creditor. At the same time the payee or holder of cheque cannot be permitted to use that penal provision under law as weapon for unlawful gain or to harass the debtor. To initiate a penal action under section 138 of N.I. Act against a drawer of cheque, there should not be any kind of lapse or lacuna on the part of holder of the cheque. Because, the proceeding under section 138 of N.I. Act is not for recovery of money but to punish a dishonest and incredible debtor. Who intentionally tries to escape from his liability, that is why it is the duty of the complainant in N.I. Act cases to place a stable and firm case on his behalf before the court. When the case of the complainant itself is shaky unstable, untrustworthy and doubtful one, then in option of this court presumption that is available under law will come to the help of accused, since he had taken several contentions before the court and made out grounds to show that the case of the complainant is highly improbable.
24. It is settled law that once, it is proved that cheque pertaining to the account of the accused is dishonour and the requirements envisaged under Section 138(a) to (c) of N.I. Act is complied. Then it has to be presumed that cheque in question was issued in discharge of legally recoverable debt. The presumption SCCH9 22 CC.50101/2017 envisaged under section 138 NI Act is mandatory presumption and it has to be raised in every cheque bounce case. Now it is settled principle that to rebut the presumption accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt. Thus, on appreciation of evidence on record, I hold that to complainant has failed to prove the case by rebutting the presumption envisaged under section 138 of NI Act the complainant has failed to discharge the initial burden to prove his contention as pleaded in the complaint. Hence the complainant has not produced needed evidence to prove that amount of Rs.3,69,702/- legally recoverable debt. Therefore since the complainant has failed to discharge the reverse burden, question of appreciating other thing and weakens of the accused is not a ground to accept the claim of the complaint in entirety without the support of the substantial documentary evidence pertaining to the said transaction.
25. Admittedly the transaction was held in the year 2011 and the cheque in question bear the date as 6.11.2017, the counsel for the accused pointed out that as on the date mentioned in the cheque, the amount alleged amount due towards purchase of timber logs by the accused and already become time barred debt and hence it cannot be said that as on the date of the SCCH9 23 CC.50101/2017 cheque bear, there was legally enforceable debt was in existing and hence the complaint filed by the complainant needs to be dismissed.
26. Article 21 of Indian Limitation Act, the period of limitation for recovery of loan amount starts from the date on which the amount has been paid. Further as per Sec.18 of Limitation Act, a fresh period of limitation shall be computed if any acknowledgement of debt has been executed by the borrower within the prescribed period of limitation i.e., within three years from the date of borrowing of the loan. Section 19 of Limitation Act makes it clear that a fresh period of Limitation shall be computed from the date of payment of some money towards the loan in question. In this case admittedly the cheque in question was issued to discharge of a time barred debt. It cannot be said that a time barred debt is legally enforceable debt. It is well settled law that if a cheque is issued for time barred debt and it is dishonour, the accused cannot be convicted under Section 138 of N.I. Act. The alleged transaction was done in the year 2011 and the cheque was issued in Nov 2017 by the time, cheque was issued the debt appears to have been barred by limitation. The task no acknowledgment is alleged to have been obtained by the complainant from the accused before the expiry of three years from the date of loan.
SCCH9 24 CC.50101/201727. Thus, it crystal clear that, the debt was not legally enforceable, at the time of issuance of the cheque and therefore vide explanation to section 138 of the N.I. Act which reads under. "Until the debt is legally recoverable the drawer of the cheque cannot be fastened with the liability under Section 138 of Act". In the present case no acknowledgment was so signed. Hence fresh period of limitation shall not be computed. So far as, bouncing of cheque cases relating to initiation of proceedings as under Sec.200 of Cr.P.C punishable under Sec.138 of N.I. Act that, the limitation point is to be taken into consideration and so also the complainant has failed to prove that Ex.P1 cheque has been issued by the accused on 06-11-2017. When PW-1 himself admits that the accused has given undated cheque and after the lapse of six years, he has presented the said cheque for encashment and initiated this proceedings. Therefore, the question would be whether the facts and circumstances of this case fall within ambit of Sec.138 of N.I. Act. The cheque Ex.P1 is set to be issued for the discharge of debt issued on 6.11. 2017 the same is time barred which cannot be recoverable and therefore the same is not a legally enforceable debt or liability.
28. The complainant has not rebutted the burden which cast upon him and he has not produced any corroborative evidence to establish his case. Therefore, SCCH9 25 CC.50101/2017 on the basis of aforesaid decisions coupled with the defense taken by the accused, those decisions are squarely applicable to the present case on hand. The accused has given rebuttal evidence to the case of the complainant. The complainant failed to give corroborative evidence. Hence, the case of the complainant creates doubtful. In view of the above fact, I am of the view that the complainant has failed to prove that the cheque has been issued for legally recoverable debt. Hence, I answer Point No.1 in the Negative.
Point No.2:
29. In view of my above discussions and findings on Point No.1, I proceed to pass the following:
ORDER Acting Under Section 255[1] of Cr.P.C, the accused is hereby acquitted for the offence Punishable U/s. 138 of the N.I. Act.
The bail bond of the accused is hereby stand cancelled.
(Dictated to the stenographer directly over computer, typed by her, corrected and then pronounced by me in the open court on this the 28th day of January 2020) (Abdul Khadar) Judge , Court of Small Causes, & XXVI ACMM Bengaluru.SCCH9 26 CC.50101/2017
ANNEXURE List of Witnesses examined on behalf of complainant:
PW -1 : Kantila G. Patel List of Documents marked on behalf of complainant:
Ex.P1 : Cheque, Ex.P1(a) : Sig.of accused Ex.P2 : Bank Endorsement Ex.P3&4 : 2 Invoices Ex.P5 : Account extract Ex.P6 : Legal notice Ex.P7 : Postal receipt Ex.P8 : Courier receipt Ex.P9 : Unserved postal cover Ex.P9(a) : Contents of Ex.P9 Ex.P10&11 : Cheques Ex.P10(a)&11(a): signature of accused
List of Witnesses examined on behalf of accused:
D.W1 : Giriraj List of documents marked on behalf of accused:
-Nil-
(Abdul Khadar) Judge , Court of Small Causes, &XXVI ACMM Bengaluru.