Bangalore District Court
M/S. Shirdi Sai Hospital vs Sri. John on 3 May, 2019
IN THE COURT OF XXVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE.
Present: Sri. N.Muniraja B.A., LL.B.,
XXVII A.C.M.M Bangalore.
Dated: This the 3rd day of May 2019.
C.C. NO.25408/2016
Complainant M/S. SHIRDI SAI HOSPITAL
PVT LTD.,
at No.519, II Main Road,
Nethravati Street,
Opp: SLK Software,
New BEL Road, Devasandra,
Bengaluru. 560 054.
Rep. by it's authorized
Representative Sri.A.Nagaraja.
(Reptd by Sri.K.B.Venkata Reddy
Adv.,)
V/s
Accused SRI. JOHN,
Managing Partner:
M/s. Print Media.Com
No.3, I Floor, Wheelers Road,
Frazer Town, Near Coles Road
Junction,
Bengaluru 560 005.
(Reptd by Sri.Ashwin Patil., Adv.,)
Offence U/s.138 of Negotiable Instruments
Act.
Final Order Acquitted
Judgment Date 03-05-2019
*****
JUDGMENT
The complainant filed this complaint against the accused for the offence punishable U/s.138 of the Negotiable Instruments Act. 3 C.C. No. 25408/2016
2. Brief facts of the complainant case are as follows:
The complainant is registered under the provisions of the Companies Act and the complainant company executed letter of authorization dated 16.03.2015 in favour of Sri. A.Nagaraja to represent and prosecute the complaint against the accused. The accused issued Cheques bearing Nos.457649 and 457650 dated 15.11.2014 and 8.12.2014 for a sum of Rs.1,50,000/- each for total sum of Rs. 3 lakhs drawn on Indian Overseas Bank, Sivan Chetty Garden Branch, Bangalore towards part payment of due amount of treatment and medical charges of the deceased Jayamma, who is the mother of the friend of the accused by name Mr.Hemananda Reddy G.M. The accused stood as a guarantor to the said due amount and issued the cheques at the time of taking body of the deceased Jayamma. The complainant presented the said cheques for encashment through it's banker Indian Bank, RMV Extension, Bangalore and the said cheques returned with an endorsement dated 6.2.2015 and 7.2.2015 as payment stopped by the drawer. The 4 C.C. No. 25408/2016 complainant got issued legal notice dated 12.02.2015 to the accused through RPAD and the said notice served to the accused, but the accused has not paid the dishonored cheques amount. Hence, this complaint.
3. The accused appeared through his advocate and he enlarged on bail. Substance of accusation read over to the accused and he pleads as false. On behalf of the complainant its authorized representative examined as PW1 and got marked 8 documents as per Ex.P1 to 8 and closed its side evidence. On closure of the complainant side evidence, statement of the accused recorded U/s.313 of Cr.P.C. The accused has denied the incriminating evidence, which appears against him in the complainant side evidence. The accused has led defense evidence as DW1 and got marked 2 documents as per Ex.D1 and D2 documents.
4. Inspite of an opportunities the complainant side not addressed arguments. Heard the learned counsel for the accused and I perused the records.
5 C.C. No. 25408/2016
5. The points that would arise for my consideration are as follows:
(i) Whether the complainant proves that the accused issued Ex.P.2 & 3 cheques towards discharge of legally enforceable debt or liability and the said cheques dishonoured?
(ii) Whether the complainant proves that after dishonour of cheques, served notice to the accused in compliance of Sec.138(b) of N.I Act?
(iii) What order?
6. My answer to the above points are as follows:-
Point No.1 : In the Negative Point No.2: In the Affirmative Point No.3 : As per the final order, for the following:-
REASONS
7. POINT NO.1:- It is the case of the complainant that the accused issued Ex.P2 and 3 cheques towards payment of treatment and medical charges of the deceased Jayamma who 6 C.C. No. 25408/2016 is the mother of his friend by name Mr. Hemananda Reddy and the said cheques dishonored for the reason payment stopped by drawer as per Ex.P4 & 5 and in spite of demand notice by the complainant, the accused has not paid the cheques amount.
8. As borne out from the cross-examination of PW1 and defense evidence of the accused, the contention of the accused is that he has issued Ex.P2 and 3 cheques to the complainant for security purpose and the accused is not liable to pay the cheques amount to the complainant and the complainant misused the cheques issued for security purpose.
9. The accused in the course of cross-examination of PW1 and in his defense evidence not disputes the fact that Ex.P2 and 3 cheques and signatures there on belongs to him. The accused in the course of cross-examination admits his signatures on Ex.P2 and 3 cheques and he signed on the said cheques as a Managing Partner of Print Media.com. Though the accused contended that he has issued Ex.P2 and 3 7 C.C. No. 25408/2016 cheques to the complainant for security purpose, but issuance of Ex.P2 and 3 cheques to the complainant is not in dispute. As the signatures of the accused on Ex.P2 and 3 cheques and issuance of the same to the complainant is not in much dispute, the presumption U/sec. 139 of the Negotiable Instruments Act raises in favour of the complainant that the accused issued the cheques towards discharge of any debt or liability. The burden shifts on the accused to rebut said presumption. With this back ground let me appreciate the evidence on record whether the accused is able to rebut the presumption U/sec. 139 of the N.I. Act raises in favour of the complainant.
10. PW1 who is the Medical Record incharge of the complainant hospital, in his chief-examination affidavit has reiterated the contents of the complaint averments. On behalf of the complainant produced Ex.P1 Authorization letter to show that PW1 is authorized to represent the complainant company. In the course of cross-examination of PW1 on behalf of the accused contended that the complainant hospital 8 C.C. No. 25408/2016 is registered under the companies Act and there should be minimum 2 Directors in the company and the Board of Directors of the complainant hospital have not given Ex.P1 Authorization to PW1 and as such Ex.p1 is not is not a proper authorisation. In para No. 2 of the complaint asserted that the complainant is a registered company and the complainant company has executed letter of authorization dated:
16/03/2015 in favour of Sri. A. Nagaraj to prosecute the complaint against the accused. As noticed above, on behalf of the complainant produced the said authorization letter as per Ex.P1. Ex.P1 letter of authorization is given by Dr. Rajesh. M, Managing Director of the complainant hospital in favour of PW1. Admittedly the complainant is registered under companies Act. In the company there will be minimum 2 Directors. As per Sec.291 of the Companies Act there must be a resolution in the company to take any decision in the matter. Here is a case on behalf of the complainant not produced resolution passed in the meeting of the Board of Directors of the complainant company authorizing the Managing Director to give authorization to any person to represent the 9 C.C. No. 25408/2016 complainant company before the court of law and in Ex.p1 there is no reference of board resolution. Further, on behalf of the complainant not produced the Memorandum of Articles of Association of the complainant company to show that the Managing Director is Authorized and competent to give authorization to any person to represent the complainant company. On behalf of the complainant not produced any materials to show that the Managing Director of the complainant company who issued Ex.P1 authorization letter is authorized to issue such authorization letter in favour of any person to represent the complainant company. Therefore it can be said that PW1 is not properly authorized to repreent the complainant.
11. It is the case of the complainant that the deceased Jayamma who is the mother of the friend of the accused by name Mr. Hemananda Reddy was admitted in the complainant hospital and towards payment of the treatment and medical charges of the said Jayamma the accused as a guarantor issued Ex.P2 and 3 cheques in favour of the complainant 10 C.C. No. 25408/2016 company and the said cheques dishonoured. The accused in the course of cross-examination of PW1 and in his defense evidence not denied the fact that the deceased Jayamma who is the mother of the friend of the accused by name Mr. Hemananda Reddy was admitted in the complainant hospital and she died in the said hospital. Therefore, it is not in dispute that the deceased Jayamma who is the mother of the friend of the accused by name Mr. Hemananda Reddy was admitted in the complainant hospital and she died in the said hospital.
12. The accused contended that the complainant hospital authority refused to hand over the dead-body of deceased Jayamma for non-payment of the treatment charges and as such on the request of the Mr. Hemananda Reddy the accused issued Ex.P2 and 3 cheques as a security and the complainant misused the said cheques. The accused in his defense evidence has stated that after few days he met his friend Mr. Hemananda Reddy and he told about payments made to the complainant by way of cheques and as his friend cleared 11 C.C. No. 25408/2016 balance amount to the complainant, he approached the complainant for return of the cheques issued for security purpose. But the complainant hospital authority refused return the cheques and they have misused the cheques. Thereafter he approached Sadashivanagar Police Station, but they refused to take any action against the complainant stating that case is already filed. The accused in the course of his defense evidence has produced Ex.D1 Advance receipt in support of his contention that the cheques are issued for security purpose. The accused in the course of cross- examination stated that the complainant hospital authority orally confirmed by issuing Ex.D1 letter that the cheque in question issued for security purpose. In the course of cross- examination of accused on behalf of the complainant contended that Ex.D1 does not bear the seal of the complainant hospital and the said Ex.D1 is a created document. No doubt, it is true that in Ex.D1 Advance receipt there a reference of cheque No. 457650 which refers to Ex.P3 cheque. But in Ex.D1 receipt there is no mention of the name of the complainant hospital and it does not bear the seal and 12 C.C. No. 25408/2016 signature of the complainant hospital authority. Therefore, it is difficult to believe that Ex.D1 Advance receipt is issued by the complainant hospital authority. The accused in the cross- examination stated that he has not issued notice to the complainant Hospital Authority for return of the cheques issued for security purpose. If really the accused issued the cheque in question the complainant for security purpose he would have issued notice to the complainant for return of the cheques.
13. The accused in his defense evidence has stated that the complainant Hospital Authority filed cheque bounce case against his friend Mr. Hemananda Reddy before this court and in the said case he has been convicted for the offense punishable U/sec. 138 of the Negotiable Instruments Act and produced Ex.D2 certified copy of Judgment dated:
05/02/2018 passed in C.C. No. 7012/2016 against the said Mr. Hemananda Reddy. PW1 in the course of cross- examination pleaded ignorance about the filing of case against the Mr. Hemananda Reddy.13 C.C. No. 25408/2016
14. The learned counsel for the accused has argued that the complainant Hospital Authority had already filed cheque bounce case against Mr. Hemananda Reddy with respect to the cheques issued towards payment of the treatment and medical charges of his deceased mother Jayamma and this court convicted him for the offense punishable U/sec. 138 of the Negotiable Instruments Act and for the same amount the complainant filed case against this accused for the offense punishable U/sec. 138 of the Negotiable Instruments Act and therefore the principle of Double jeopard is applicable U/sec. 300 of Cr.P.C and in support of his argument and relied upon the decision of the Hon'ble Supreme Court of India reported in (2011) 2 SCC 703 (Kolla Veera Raghav Rao V/s Gorantla Venkateswara Rao and Another) wherein it is held that the accused having been convicted U/sec. 138 of the Negotiable Instruments Act, cannot be prosecuted U/sec. 420 of IPC for the same set of facts.
15. It is pertinent to note that a reading of Sec.300 of Cr.P.C it 14 C.C. No. 25408/2016 is clear that a person once tried by the competent court for an offense and convicted or acquitted of such offense he shall not be tried again for the same offense. In Ex.D2 case not tried against the accused and Mr. Hemananda Reddy was prosecuted in the said case. Therefore, the principle of Double jeopard is not applicable against the accused. However, it is the case of the complainant that the accused as a guarantor to Mr. Hemananda Reddy issued to the cheques in question towards the payment of treatment and medical charges of the mother of the said Mr. Hemananda Reddy. As could be seen from Ex.D2 judgment that the complainant Hospital Authority in C.C. 7012/2016 prosecuted against Mr. Hemananda Reddy for the offense punishable U/sec. 138 of the Negotiable Instruments Act in respect of the cheque issued by him towards payment of the treatment and medical charges of his deceased mother Jayamma and in the said case the Mr. Hemananda Reddy G.M. is convicted. Here is a case the complainant Hospital prosecuting against the accused in respect of the cheques alleged to be issued towards payment of treatment and medical charges of the same deceased 15 C.C. No. 25408/2016 Jayamma. Under these circumstances the complainant Hospital Authority cannot prosecute against the said Mr. Hemananda Reddy G.M. as well as this accused simultaneously for the same liability. Since, the complainant Hospital prosecuted against Mr. Hemananda Reddy G.M. for the offense punishable U/sec. 138 of the Negotiable Instruments Act and he has been convicted in respect of the cheque issued towards payment of the treatment and medical charges of his deceased mother Jayamma, this complaint against the accused for the same liability is not sustainable. Therefore, it can be said that there is no legally enforceable debt or liability on the part of the accused towards the complainant. In view of my above discussion I answer Point No.1 in the Negative.
16. Point No.2 : It is the case of the complainant that after dishonour of the cheques issued legal notice to the accused on 12/02/2015 through RPAD and the said notice served to the accused but the accused has not paid the dishonoured cheques amount. On behalf of the complainant to 16 C.C. No. 25408/2016 prove the factum of issuance of notice to the accused through RPAD after dishonour of the cheques and service of said notice to the accused produced Ex.P6 office copy of notice dated:
12/02/2015, Ex.P7 Postal receipt and Ex.P8 Postal Acknowledgement. In the course of cross-examination of PW1 on behalf of the accused made suggestion to the effect that notice not served to the accused. Of course PW1 has denied the suggestion made on behalf of the accused in this regard. The accused in his defense evidence not denied the service of notice issued by the complainant after dishonour of the cheques. Rather the accused in the course of cross- examination admits that the notice sent by the advocate for the complainant served on him. So it is clear that the notice sent by the complainant after dishonour of the cheques served on the accused. The materials placed on record by the complainant clealry goes to show that after dishonour of the cheques the complainant issued notice to the accused through RPAD demanding him to pay the dishonored cheques amount and the said notice served on the accused. Therefore the complainant has complied the mandatory requirement of 17 C.C. No. 25408/2016 Sec.138 of the Negotiable Instruments Act. Hence, I answer Point No.2 in the Affirmative.
17. Point No.3 :- In view of my findings on Point No.1 & 2 though the complainant able to establish that after dishonour of the cheques served notice to the accused in compliance of Sec.138(b) of N.I Act, but fails to establish the existence of legally enforceable debt or liability on the part of the accused. Hence, the accused is not liable for punishment for the offence punishable U/s.138 of the N.I Act. In the result, I pass the following:-
ORDER The complaint filed by the complainant against the accused is dismissed.
Consequently, acting U/s.255(1) of Cr.PC, the accused is acquitted for the offence punishable U/s.138 of N.I. Act and his bail bond and surety bonds are canceled and he set at liberty.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced in open court by me on this the 3rd day of May, 2019) 18 C.C. No. 25408/2016 (N.Muniraja) XXVII A.C.M.M., Bangalore.
ANNEXURE Witnesses examined on behalf of the complainant:
PW1 : A.Nagaraja.
Documents marked on behalf of the complainant:
Ex.P.1 : Letter of authorization Ex.P.2 & 3 : Cheques Ex.P.4 & 5 : Bank Endorsements Ex.P.6 : Copy of Notice Ex.P.7 : Postal receipt Ex.P.8 : Postal acknowledgement.
Witnesses examined on behalf of the accused:
DW-1 : John Nesa Kumar.
Documents marked on behalf of the accused:
Ex.D.1 : Advance Receipt Ex.D.2 : C/c of Judgment in CC No.7012/2016.
XXVII A.C.M.M Bangalore.19 C.C. No. 25408/2016
(Order typed vide separate sheet) ORDER The complaint filed by the complainant against the accused is dismissed.
Consequently, acting U/s.255(1) of Cr.PC, the accused is acquitted for the offence punishable U/s.138 of N.I. Act and his bail bond and surety bonds are canceled and he set at liberty.
(N.Muniraja) XXVII A.C.M.M., Bangalore 20 C.C. No. 25408/2016 Dt:03/05/2019 Complnt:Sri.K.B.V.Adv., Accused:Sri. A.P Adv., For Judgment