Bangalore District Court
Mohan Raju vs Smt. R.P. Umadevi on 3 May, 2016
IN THE COURT OF THE XIX ADDL.CHIEF
METROPOLITAN MAGISTRATE AT BANGALORE CITY
Dated this the 3rd day May 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 4864/2012
Complainant: Mohan Raju
S/o. Mayanna.
Aged about 30 years,
R/at No.24/5, 4th Cross,
1st Main Road, Pipeline,
Near Suribi Hotel,
Vijayanagar,
Bangalore - 560 040.
Accused: Smt. R.P. Umadevi
C/o. Bangalore Central Jail,
UTP No.6575/11,
Parappana Agrahara,
Bangalore.
And also at:
Smt. R.P. Umadevi
Proprietor of S.S. Enterprises,
No.597/A, 3rd Floor,
Sri. Kantappa Complex,
Above Annapurna Bakery,
Vidhyapeeta Road,
Kote Kengeri,
Bangalore -560 060.
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused not found guilty
Date of order: 3rd May 2016
2 C.C.No.4864/2012
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act.
2. The brief facts of the complaint is as hereunder:
The complainant stated that the Accused is known to him and as per the internet job agreement dtd. 21.5.2010 and 31.10.2011 the accused has agreed to give data entry job i.e., internet job to the Complainant. The Complainant finished his job and asked for the work done by him for the worth of Rs.2,00,000/-. The accused was totally due of Rs.6,00,000/- to the Complainant with respect to data entry job. The accused has taken time to pay the amount for the work done by this Complainant. On the repeated request and demand from the Complainant to pay the amount for the work done by him, finally the accused in order to discharge her liability had issued a cheque bearing No.057262 dtd.29.7.2011 for Rs.6,00,000/- drawn on IDBI Bank, Bangalore branch, Bangalore in favour of this Complainant with a request to present the said cheque for encashment.
3. The Complainant by believing the words of the Accused, presented the said cheque before his banker The Karnataka Bank 3 C.C.No.4864/2012 Ltd., Rajajinagar branch, Bangalore for realization but the said cheque returned dishonoured with an endorsement "funds insufficient' and the same was informed to this Accused. On the request of the accused, the Complainant once again re-presented the cheque before his banker for encashment and even on the second time, the cheque returned dishonoured with an endorsement "funds insufficient" and the same was informed to this accused.
4. He further stated that as the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 2.11.2011 by intimating dishonour of the cheque and also demanding for payment of the cheque amount through RPAD and Speed Post to both the addresses of the accused and the said notice was duly served upon this accused on 3.11.2011. The Accused even inspite of receipt of Legal Notice neither chosen to make payment of the cheque amount nor she has replied the notice by denying the transaction. The Accused knowing fully well that she has no sufficient funds in her bank account, had issued a bogus cheque and thereby, the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
5. After recording sworn statement of the complainant the Private Complaint lodged by the complainant was registered as a 4 C.C.No.4864/2012 Criminal Case, summons was issued as against the accused. The accused appeared through her counsel and she was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
6. The complainant himself got examined as PW1 and He got produced 5 documents marked as Ex.P1 and Ex.P5 and closed his side of evidence.
7. After closure of the complainant side evidence, the accused statement u/Sec. 313 Cr.P.C. recorded and read over to the accused. Accused denied the entire incriminating evidence in toto and she intended to lead her evidence. She accused got herself examined as DW1 and she got produced two documents marked as Ex.D1 and Ex.D2 and closed her side of evidence.
8. I have heard the arguments on both sides and I have also perused the entire records.
9. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of N.I. Act beyond all reasonable doubts?
2. What order?5 C.C.No.4864/2012
10. My findings to the above point are as under:
Point No. 1 In the Negative Point No. 2 As per final order for the following REASONS
11. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the Complainant stepped into the witness box and got examined as PW1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
12. PW1 deposed that the Accused is known to him and as per the internet job agreement dtd.21.5.2010 and 31.10.2011 the accused has agreed to give data entry job i.e., internet job to him and accordingly, he finished his job and asked for the work done by him for the worth of Rs.2,00,000/-. He deposed that the accused was totally due of Rs.6,00,000/- to him with respect to data entry job done by him. He deposed that the accused has taken time to pay the amount for the work done by him and on his repeated request and demand to pay the amount for the work done by him, finally the accused in order to discharge her liability, had issued a cheque bearing No.057262 dtd. 29.7.2011 for Rs.6,00,000/- drawn on IDBI 6 C.C.No.4864/2012 Bank, Bangalore branch, Bangalore in his favour with a request to present the said cheque for encashment.
13. He further deposed that on the assurance of the accused he presented the said cheque before his banker for realization but the said cheque returned dishonoured with an endorsement "funds insufficient' and the same was informed to this Accused. He deposed that on the request of the accused, he once again re- presented the cheque before his banker for encashment and even on the second time, the cheque returned dishonoured with an endorsement "funds insufficient" and the same was informed to this accused.
14. He further deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice on 2.11.2011 by intimating dishonour of the cheque and also demanding for payment of the cheque amount through RPAD and Speed Post to both the addresses of the accused and the said notice was duly served upon this accused on 3.11.2011. He deposed that the Accused even inspite of receipt of Legal Notice has neither chosen to make payment of the cheque amount nor she has replied the notice by denying the transaction. He deposed that the Accused 7 C.C.No.4864/2012 knowing fully well that she has no sufficient funds in her bank account, had issued a bogus cheque and thereby, the Accused has committed an offence.
15. PW1 in order to prove his case got produced the cheque marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this accused. He got identified the signature of this accused marked as Ex.P1(a). He got produced the bank endorsement marked as Ex.P2. He got produced copy of the legal notice along with two RPAD receipts marked Ex.P3, Ex.P3(a) and Ex.P3(b) respectively. He got produced two Postal Acknowledgement Due Cards for having served the notice to the accused marked as Ex.P.4 and Ex.P5 respectively.
16. The accused has denied the entire case of the Complainant and denied the very fact that she is proprietrix of the S.S. Enterprises and she had given the internet job to this Complainant and as per the agreement the Complainant has done the internet job work from 21.5.2010 to 31.10.2011 totally amounting to Rs.6,00,000/- and she by admitting her liability to pay the remuneration payable to this Complainant, had issued her Ex.P.1 cheque and the same was bounced. The Accused has denied the 8 C.C.No.4864/2012 testimony of PW1 and her learned Counsel subjected PW1 for encashment.
17. PW1 in his cross-examination stated that the S.S. Enterprises was previously existing at Kengeri but he is not aware of the exact postal address of the Company. He has stated that for the first time he contacted the company for the internet job work in the month of February 2011 and after negotiations with this Accused after about 2 - 3 months, he started his internet job work and invested amount. He has stated that for the first time, he invested Rs.25,000/- at the accused company and subsequently, he invested a sum of Rs.5,75,000/- in the month of July 2011.
18. He further stated that there was a written contract in- between him with this accused with respect to internet job and the said document is in his possession and he has no difficulty to produce the said document before this court. Likewise, he has stated that he made data entry on a agreement that for one paragraph it has to be treated as one word and 25 paragraphs he has to make a separate booklet and accordingly, he has done 4 booklets each containing 25 pages in a month and for one booklet a sum of Rs.6,000/- was fixed by this accused. PW1 stated that he has 9 C.C.No.4864/2012 no documents with him to prove that he has done internet job work to the company of this Accused and even he has no documents with him to prove that he had made data entry of 4 booklets in a month each containing 25 pages and he totally done 600 booklets worth of Rs.6,00,000/-.
19. The Accused denied the very fact that this Complainant was working to her company and he had done the internet job work to her company after and he has done data entry work related to Mysore University books and this Complainant has done 600 booklets in a span of 2 - 3 months. PW1 in his cross-examination except adducing the oral evidence that in-between 21.5.2010 and 31.10.2011 he has done the internet job to the Accused and he invested a total sum of Rs.6,00,000/-, has not chosen to prove the same by adducing the documentary evidence before this court.
20. The Complainant except adducing the oral evidence that the accused by admitting her liability to pay the remuneration, had issued her Ex.P.1 cheque, has not chosen to prove the same by adducing the documentary evidence before this court.
21. As I have discussed supra, the Accused has categorically denied the fact that this Complainant was working for her company 10 C.C.No.4864/2012 and he has done internet job work to her company and he has done work worth of Rs.6,00,000/- in her company. In such situation, the initial burden is on this PW1 to prove that he has done internet job work to this Accused for a period of 1 year 4 months and he has done the work worth of Rs.6,00,000/- and this accused was liable to pay a sum of Rs.6,00,000/- and she in order to pay his remuneration, had issued her Ex.P1 cheque. The PW1 in order to prove his initial burden except adducing the oral evidence, which has been categorically denied by this Accused, nothing has been placed before this court to prove his case. Though PW1 in his cross- examination stated that he had with him document to prove that he had invested a total sum of Rs.6,00,000/- to the Accused company for internet job work and even with respect to the same an agreement was also written in-between them. But he has not chosen to prove the same by adducing the documentary evidence before this court.
22. The Accused has taken up the defence that in the month of March and April 2011 there was a huge galata in her office as some of the publics of the locality by alleging that there are some misappropriation in the company by her employees, forcefully trespassed into the company and they destroyed all the furnitures 11 C.C.No.4864/2012 along with they have destroyed the ledgers and other documents kept in the company and even they have taken away the valuable documents kept by this Accused at her company for the day-to-day transaction and during that time, they have illegally taken away her cheque book and subsequently, this Complainant by misusing one of her cheque book, created and concocted the same for Rs.6,00,000/- and filed this false complaint. Though the Accused during the cross-examination of PW1 put her defence to PW1 by suggesting that there was a huge galata by the publics of locality in the month of March and April, 2011 at the office of this Accused and they illegally trespassed into the office of the Accused and destroyed all the furniture of the office and also destroyed the valuable documents and ledger books kept by her at her company.
23. On the contrary, though PW1 admitted that he came to know about the said galata after he read out of the same in the daily newspaper but he denied the suggestion that in the said galata the entire office furniture, valuable documents, ledger books, cheque books were destroyed by the publics of the locality. PW1 in his cross-examination stated that he has sent 3 -4 notices to this accused calling upon her to make payment of the cheque amount and except the notice issued as per Ex.P3 the other notice was not served on the 12 C.C.No.4864/2012 accused. He further stated that the Ex.P3 is the final notice and the said notice was duly served upon the accused.
24. PW1 denied the suggestion that the notice issued by him as per Ex.P.3 was not served on this Accused. Likewise, he denied the suggestion that he colluding with the post-man created a false shara on Ex.P4 and Ex.P5 documents.
25. He further denied the suggestion that he himself for his convenience, written all the contents of Ex.P.1 cheque and presented the same for encashment without the knowledge and consent of this Accused. He denied the suggestion that the Accused is not liable to pay the cheque amount as there was no contractual obligations on this Accused to pay the cheque amount and has no internet job work was done to this Accused. Though the Accused has admitted the fact that Ex.P.1 is belong to her bank account and even she admitted that Ex.P.1 (a) signature is that of her.
26. However, she has taken up the specific defence that during the galata in the month of March and April 2011 by the publics of the locality, they have taken her duly signed blank cheque book and other valuable documents kept by her at her company and this Complainant misused her cheque for 13 C.C.No.4864/2012 Rs.6,00,000/- and filed this false complaint, even though she was not liable to pay the cheque amount. In such situation, the burden is on this PW1 to prove that he had done the internet job work to this Accused and he has done the data entry work totally amounting to Rs.6,00,000/-. Admittedly, PW1 in order to prove this fact, except adducing the oral evidence, which has been categorically denied by this Accused, nothing has been placed before this court to believe his testimony and to believe that the Ex.P.1 cheque was issued by this Accused towards the discharge of her liability to pay the remuneration to this Complainant.
27. Likewise, the PW1 except adducing the oral evidence that he had invested a sum of Rs.6,00,000/- to the company of this Accused towards payment of the internet job work done by this Complainant, had issued her Ex.P1 cheque, has not chosen to prove the same by adducing the documentary evidence before this court. Admittedly, the initial burden is on this PW1 to prove that he had invested a sum of Rs.6,00,000/- at the company of this Accused. Admittedly, PW1 except adducing the oral evidence that in between period of 21.5.2010 to 31.10.2011 for about 1 year 4 months, he had done internet job work to this Accused, has not chosen to prove the same by adducing documentary evidence before this court. 14 C.C.No.4864/2012
28. Admittedly, PW1 neither in his complaint averments nor in his affidavit filed in lieu of oral evidence nor in his notice has disclosed this fact by furnishing the details of date and amount invested by him. The entire case of the Complainant is silent with respect to the date of transaction and also about the date of investment of amount. In such situation, without any evidence before this court, it is not possible to believe the testimony of PW1 that as on date of Ex.P.1 cheque there existing a legally recoverable amount or other liability on this Accused and she by admitting her liability and in order to discharge her liability, had issued Ex.P.1 cheque and the same was bounced.
29. As I have discussed supra, the PW1 except adducing the oral evidence that he had invested a sum of Rs.6,00,000/- in the company of the Accused towards the internet job work, which has been categorically denied by this Accused, nothing has been placed before this court to believe his testimony and to prove the transaction and also to prove that as on date of Ex.P.1 cheque, there existing a legally recoverable amount or other liability on this Accused. Moreover, even according to PW1, he has sent 3-4 notices to this accused and except the final notice issued as per Ex.P3 rest of the other notices were not served on the accused. 15 C.C.No.4864/2012
30. The Accused taken up specific defence that she was in judicial custody in some other criminal case. In such situation, the case of the Complainant that the Accused even inspite of receipt of Legal Notice, neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction, cannot be acceptable and it holds no merit. No notice was served on this Accused as required u/Sec.138 of N.I. Even on this count, the case of the Complainant is not maintainable and it holds no merit.
31. The PW1 except adducing the oral evidence that he invested a total sum of Rs.6,00,000/- by doing data entry work, has not chosen to prove the same by producing his bank extract and other documents before this court. In such situation, the burden is heavily on this PW1 to prove that he was done the internet job work worth of Rs.6,00,000/- and it is only after he finished his work the accused had issued Ex.P.1 cheque after putting her signature on the cheque. PW1 in order to prove this fact, has not chosen to produce the documents by adducing cogent and convincing evidence before this court.
32. However, the Accused in order to prove her defence and also to rebut the presumption available to this Complainant 16 C.C.No.4864/2012 u/Sec.139 of N.I. Act, got herself examined as DW1. She categorically deposed that she was running company under the name S.S. Enterprises Company in between the year 2002-2011. She deposed that, before her company for taking data entry request there was a written lease contract in between investors and her company. She deposed that there was no such written lease contract in between this Complainant and her company. She deposed that all the transaction relating to her company were through written agreement as her company was a duly registered company. She deposed that previously her company was situated at Kengeri in between 2002-2011 and subsequently in the year 2010, they have also opened one more branch at Kumbalgod Industrial Area.
33. She deposed that during the year 2011, there was a huge galata in her company as some of the localites and publics have illegally trespassed into her company and they destroyed all the furnitures kept in the company and they have also destroyed the ledgers, register books and other valuable documents including cheque book and account books and subsequently, they have also lodged a criminal case against them and it was registered against her and her company people. She deposed that with respect to the said criminal case, police arrested her and she was sent to judicial 17 C.C.No.4864/2012 custody for about 8 months and she was in judicial custody. She deposed that she has not received the notice issued by this Complainant as during that time she was in judicial custody and only after she released from the judicial custody, she came to know about the fact that during the galata, the cheque books were thefted from her office and as such she could not able to file a separate complaint against this Complainant for missing her cheque.
34. She deposed that she always used to keep her duly signed blank cheque and blank receipts in her office for their day- to-day business work and this Complainant, by misusing duly signed blank cheque and receipts, created the same as Ex.P.1, and filed this false complaint even though she was not liable to pay the cheque amount. She deposed that she could not able to lodge a complaint against the general public of the locality, who made galata against her company as during that time she was at Shimoga and moreover, the police have refused to receive her complaint and to take action.
35. She deposed that her office staff informed her about the galata through telephonic message and subsequently, she rushed to her company. She deposed that as there was a life threat from the 18 C.C.No.4864/2012 localites of the area, she closed down her business at Kengeri. She deposed that she has not issued Ex.P.1 cheque towards discharge of her liability in favour of this PW1 and even she was not liable to pay the cheque amount to this Complainant much less amount disclosed in Ex.P.1. She deposed that neither she nor her company had ever made business transaction with this Complainant. She got produced the certified copy of the order sheet of criminal case No.58/2011 to prove that she was in judicial custody for a period of 8 months marked as Ex.D1. She got produced the Registration Certificate of her company along with Form No.18, No.32 and Form No.1 with Memorandum of Association and Certificate of Incorporation marked as Ex.D2. She deposed that the Complainant only with an intention to make wrongful gain for himself and to cause loss to her, filed this false complaint even though she is not liable to pay any amount to him. DW1 prays to dismiss the complaint.
36. The learned Counsel for the Complainant subjected DW1 for cross-examination by denying her testimony. On the contrary, the DW1 in her cross-examination denied the entire suggestions put to her and denied the fact that she herself after putting her signature on Ex.P.1 by admitting her liability to pay the remuneration amount 19 C.C.No.4864/2012 to PW1 amounting to Rs.6,00,000/-, issued Ex.P.1 cheque in favour of PW1. Likewise, DW1 in her cross-examination denied the suggestion that she is proprietrix of the company and she is the sole proptrietrix of the company. She has categorically deposed that her company is a registered company and she is one of the directors to the company and along with her, there was one more Director to the company and three Managers were there.
37. She stated that she cannot identify and depose from how many companies she had purchased data entry to her company. She has stated that as there was a written contract in between her company with the assistance, who are entering data entry, as per contract, she was paying remuneration amount for the work done by them. She has stated that when the galata took place in her company, she was not present on the spot and as such she was not remembered when exactly galata was took place and for what time. She has stated that some of the localites have demanded to pay Hafta and as she refused to give money to them, they made galata against her company and lodged a complaint against her and her four members of the staff, for which a case was registered and she was arrested and sent to judicial custody. Even though DW1 admitted the signature found on Ex.P.1 marked as Ex.P.1(a) is that 20 C.C.No.4864/2012 of her. On the contrary, she has categorically denied the suggestion that she herself after writing all the contents of Ex.P.1 cheque, issued the same in favour of this PW1 towards the payment of the remuneration amount.
38. The DW1 categorically denied the suggestion that this Complainant has invested a huge sum in her company and he has done the internet job work to her company worth of Rs.6,00,000/-. She denied the suggestion that even though she was liable to pay the cheque amount, she only with an intention to ran way from her liability, is deposing false before this court. Though DW1 except adducing the oral evidence that there was a huge galata in her company by the local people of the area and they destroyed all the furnitures, valuable books pertaining to accounts and registers of the company, cheque books and receipt books, has not chosen to prove the same by adducing the documentary evidence before this court.
39. On the contrary, admittedly, the burden is on this PW1 to prove that this Accused after admitting her liability to pay the remuneration amount to this PW1, had issued Ex.P.1 cheque in his favour. As I have discussed supra, the Complainant in order to prove this fact has not chosen to produce any piece of evidence 21 C.C.No.4864/2012 before this court nor he has proved that he had invested the amount before the Accused company amounting to Rs.6,00,000/-.
40. As I have discussed supra, the Complainant during the cross-examination of DW1, except putting some suggestions to her that she has issued Ex.P.1 cheque after this Complainant was completed his data entry work and she towards the payment of the remuneration amount, had issued Ex.P.1 cheque, which has been categorically denied by DW1, nothing has been elicited from her mouth to disbelieve her testimony and to discard her evidence.
41. As I have discussed supra, the initial burden is always on this Complainant to prove the existence of debt other liability as on date of Ex.P.1 cheque on this Accused and this Accused by admitting her liability, had issued Ex.P.1 cheque. As I have discussed supra, the Complainant in order to prove this fact, except adducing the oral evidence that he had invested a huge amount of Rs.6,00,000/- in the company of this Accused by doing data entry work and towards the payment of the remuneration amount, the Accused had issued Ex.P.1 cheque, has not chosen to prove the same to the satisfaction of the court.
22 C.C.No.4864/2012
42. As I have discussed supra, the Complainant without producing the document before this court that he had done the data entry work to this Accused and invested huge amount of Rs.6,00,000/- in the company of this Accused, has filed this case by claiming the cheque amount from the Accused, which is not believable and acceptable. Moreover, the PW1 has failed to convince this court that he had the financial capacity to invest huge amount of Rs.6,00,000/-before this Accused at her company. The Complainant except adducing the oral evidence that he had invested huge amount at the company of this Accused, has not chosen to prove the same by adducing the documentary evidence before this court. The Complainant even did not chosen to claim interest on the invested amount even though according to the PW1 the transaction took place between him with this Accused is a commercial transaction.
43. Admittedly, the Complainant has not demanded any interest on the invested amount. Even this fact creates a doubt in the mind of the court about the case of the Complainant and also about the conduct of the Complainant. The Complainant has not chosen to clear all the doubts aroused in the mind of the court by adducing the cogent and convincing evidence before this court. It is well 23 C.C.No.4864/2012 settled principle of law that presumption u/Sec.139 of N.I. Act is available to this Complainant only with respect to issuance of cheque towards the repayment of debt or to her liability on this Accused. However, the burden is on this Complainant to prove the existence of debt or other liability on this Accused as on the date of Ex.P.1 cheque to the satisfaction of the court.
44. Here in this case, the Complainant except adducing the oral evidence that he had invested a huge amount of Rs.6,00,000/- in the company of this Accused and towards the payment of the remuneration amount, the Accused has issued Ex.P.1 cheque, has not chosen to prove the same to the satisfaction of the court. The Complainant has utterly failed prove the existence of legally recoverable amount or other liability on this Accused as on date of Ex.P.1 cheque and also to prove that the Ex.P.1 cheque was issued towards the discharge of her liability to pay the remuneration amount.
45. As I have discussed supra, the Complainant has utterly failed to discharge his initial burden to the satisfaction of the court by adducing convincing evidence before this court. The Complainant has failed to prove that this Accused is liable to pay 24 C.C.No.4864/2012 the cheque amount disclosed in Ex.P.1. In such situation, the very complaint filed by the Complainant against this Accused for the offence punishable u/Sec.138 of N.I. is not maintainable and it holds no merit.
46. The learned Counsel for the Complainant has vehemently argued that the Accused has admitted her Ex.P.1 cheque and also admitted her signature found on Ex.P.1 cheque. He further arguments that the Accused except taking the defence that her cheque books and receipt books along with other valuable documents were destroyed and thefted from her office during the time of galata, has not chosen to prove the same to the satisfaction of the court by adducing the documentary evidence before this court.
47. He argued that there is a presumption available to this Complainant u/Sec.139 of N.I. Act that the Accused in order to discharge her legally recoverable debt or other liability, had issued Ex.P.1 cheque and the same was bounced. He has further argued that the notice issued as per Ex.P3 was duly served upon this accused and this accused even inspite of receipt of Legal Notice, neither chosen to make payment of the cheque amount nor she has 25 C.C.No.4864/2012 replied the notice by denying the transaction and therefore by drawing an adverse inference against the accused, the accused has to be convicted in accordance with law, is not convinced this court and it holds no merit. The accused by prodding Ex.D1 document proved that she was in judicial custody since from 30.6.2011 to February 2012 and by that time the notice was issued by this Complainant on 2.11.2011 she was in judicial custody. In such situation, there is a very chance the accused was unable to send her reply by denying the transaction from the judicial custody. In such situation, the arguments of the learned Counsel for the Complainant that the accused even though received the notice neither chosen to make payment of the cheque amount nor she has sent the reply by denying the transaction and as such an adverse inference has to be drawn against her, cannot be acceptable and it holds no merit.
48. Moreover, the initial burden is on this Complainant to prove that he had invested a huge sum of Rs.6,00,000/- in the company of this Accused towards the data entry work and this Accused was liable to pay a sum of Rs.6,00,000/- in favour of this Complainant.
26 C.C.No.4864/2012
49. Unless the Complainant prove the existence of liability on this Accused as on date of Ex.P.1 cheque, it does not become automatic that the Accused by admitting her liability might have issued Ex.P.1 cheque towards the repayment of her liability. In such situation, the arguments canvassed by the learned Counsel for the Complainant, cannot be accepted and it holds no merit.
50. Likewise, his further arguments that the Accused only with an intention to ran away from her liability to pay the cheque amount has taken up the false defence before this court and therefore, the defence has to be discarded, is also not convinced this court.
51. As I have discussed supra, the Complainant except adducing the oral evidence that the had invested a huge amount of Rs.6,00,000/- in the company of this Accused and towards the discharge of liability, the Accused has issued Ex.P.1 cheque, has not chosen to prove the same by adducing the documentary evidence before this court. The burden is on this PW1 to prove his financial capacity to invest huge amount of Rs.6,00,000/- at the company of the Accused. Merely because, the PW1 deposed that he invested a huge amount at the company of this Accused for data entry work it 27 C.C.No.4864/2012 does not become automatic that the Complainant has proved his case to the satisfaction of the court. The arguments canvassed by the learned Counsel for the Complainant, is not convinced this court and it holds no merit.
52. Per contra, the Learned Counsel for the Accused has vehemently arguments that the very complaint filed by the Complainant is not maintainable as the Complainant has not complied the mandatory provisions of Sec.138 of N.I. Act by serving the notice to this Accused before filing of this complaint. He has argued that the Accused by adducing the documentary evidence before this court proved that as on date of Ex.P.3 notice, the Accused was in judicial custody with respect to some other criminal case and she was already closed down her business. He argued that the notice was not served on this Accused as required under law, complaint is not maintainable and only on this ground itself the complaint can be dismissed. The arguments canvassed by the Learned Counsel for the Accused is fully convinced this court. Admittedly, as on date of Ex.P3 notice the accused was in judicial custody and as such there was no occasion for her to send reply to the notice by appointing an Advocate from her side to send the reply.
28 C.C.No.4864/2012
53. Likewise, his arguments that the Complainant except adducing the oral evidence that he had the business transaction with this Accused and he had invested a huge sum of Rs.6,00,000/- with this Accused by taking internet job work and he has done data entry work to this Accused amounting to Rs.6,00,000/- and in such situation, mere an oral testimony of PW1 is not sufficient and believable, is also convinced this court. He argued that the initial burden is on this Complainant to prove the existence of debt or other liability on this Accused as on date of Ex.P.1 cheque and unless he discharge is burden to the satisfaction of the court by adducing the documentary evidence before this court, the burden will not shift on this Accused to rebut the presumption available to this Complainant u/Sec.138 of N.I. Act is also fully convinced this court.
54. Here in this case, the Complainant except adducing the oral evidence that the Accused in order to discharge her liability and to pay the remuneration amount, had issued Ex.P.1 cheque for Rs.6,00,000/- has not chosen prove the same by adducing the documentary evidence before this court. In such situation, the arguments canvassed by the Learned Counsel for the Accused is fully convinced this court. The Learned Counsel for the Accused 29 C.C.No.4864/2012 further argued that the Accused need not prove her defence beyond all reasonable doubts. He argued that the Accused can very well discharge her burden by preponderance of probabilities and even by cross-examining PW1 by eliciting the truth from his mouth. He argued that the Accused successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act and by adducing her evidence before this court and even by cross- examining PW1. Even this arguments is fully convinced this court.
55. Admittedly, there is no burden on this Accused to prove her defence beyond all reasonable doubts. The Accused can very well discharge her burden by preponderance of probabilities and she has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act. The Learned Counsel for the Accused in support of his arguments has relied upon the judgement reported in ILR 2008 KAR 4629 between Shivamurthy Vs. Amruthraj wherein it is held that;
""Before considering the conduct of the Accused to find out as to whether or not he has been able to rebut the Statutory Presumption available under Section 139, the Court ought to have considered as to whether the Complainant has proved the existence of legally enforceable debt. It is only after satisfying that the Complainant has proved existence of legally enforceable debt or liability, the courts ought to have proceeded to draw presumption u/Sec. 139 of N.I. Act 30 C.C.No.4864/2012 and thereafter find out as to whether or not the Accused has rebutted the presumption."
2015AIR SCW 64 between Subramani K. Vs. K. Damordaraya Naidu wherein it is held that;
"Sec.138 of N.I. Act finding of the trial court on consideration of entire oral and documentary evidence that the Complainant had no source of income to lend sum of Rs.14,00,000/- to accused. He failed to prove that there is legally recoverable debt payable by this accused to him. Acquittal of accused is proper.
2011(1) KCCR 118 Karnataka High Court between Bharathy Vs. Benigopal Jhawar wherein it is held that;
The petitioner herein who is the accused 2 in the criminal proceedings, have not been informed by a legal notice, making a demand for payment amount involved in the cheque, by way of legal notice and thus, there was non-compliance of the provisions of Section 138(b) of the Negotiable Instruments Act, 1881 to constitute an offence in terms of Section 138 of the Act, denying the petitioner herein of an opportunity, to make the payment - Thus the accused No.2 as aforesaid, could not be said to have committed the offence in question, and hence, the criminal proceedings against him are liable to be acquitted."
2012 (1) DCR 746 Supreme Court of India between Aneeta Hada Vs. M/s. Godfather Travels and Tours Pvt. Ltd. wherein it is held that;
"Section 141 of N.I. Act clearly stipulates that when a person which is a company commits an offence then certain categories of persons in charge as well as the company would be deemed to be liable for offence u/Sec.138 of N.I.Act - It is bounded duty of court to ascertain for what purpose the legal fiction has been created - Criminal liability on account of dishonour of cheque primarily falls on the drawer company and is extended to the officers of company - For 31 C.C.No.4864/2012 maintaining the prosecution u/Sec.141 of N.I.Act arraigning of a company as an accused is imperative."
The judgment relied by the Learned Counsel for the Accused is applicable to the present case on hand and also helpful to the defence of the Accused.
56. As I have discussed supra, the Complainant has utterly failed to prove his case and prove that this Accused has committed an offence punishable u/Sec. 138 of N.I. Act and therefore she is liable for sentence. The oral and documentary evidence adduced before this court by the Complainant is not sufficient and convincing to bring home the guilt of the Accused beyond all reasonable doubts. The entire burden is on this Complainant to bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. Unless the Complainant discharge his initial burden, no burden will shift on this Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act.. The Complainant has utterly failed to prove that the Accused has committed an offence punishable u/Sec. 138 of N.I. Act and therefore, he is liable for sentence. In such situation, the benefit of doubt goes in favour of this Accused. Hence, by taking into 32 C.C.No.4864/2012 consideration the facts and circumstances and evidence available on record, I answer Point No.1 in the Negative.
57. Point No.2: In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting U/s.255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable U/s.138 of NI Act.
The bail bond and surety bonds of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 3rd day of May, 2016) (ISHRATH JAHAN ARA) XIX ADDL.CMM Bangalore ANNEXURE:
Witnesses examined on behalf of the Complainant: P.W.1 Sri. Mohan Raju Witnesses examined on behalf of the Accused:
D.W.1 Smt. R.P. Umadevi Documents marked on behalf of the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused
Ex.P.2 Bank endorsement
Ex.P.3 Copy of the legal notice
Ex.P.3(a) & Ex.P3(b) RPAD receipts
Ex.P.4 & 5 Postal Acknowledgement Due Cards
33 C.C.No.4864/2012
Documents marked on behalf of the Accused:
Ex.D1 Certified copy of the Order sheet of criminal case
No.58/11
Ex.D2 Registration Certificate of the company along with
Form No.18, No.32 and Form No.1 with
Memorandum of Association and Certificate of Incorporation XIX ACMM, B'lore.34 C.C.No.4864/2012