Bangalore District Court
Shri. C.K. Menda (Huf) vs M/S. Mandya Pipe Centre on 19 January, 2015
IN THE COURT OF THE XIX ADDL.CHIEF
METROPOLITAN MAGISTRATE AT BANGALORE CITY
Dated this the 19th day January, 2015
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 117/2012
Complainant: Shri. C.K. Menda (HUF)
S/o. Late Keshandas Menda,
Aged about 65 years,
R/at. No.34/1, Nanjappa Road,
Shanthi Nagar,
Bangalore -560 027.
For self and on behalf of HUF.
Accused: 1. M/s. Mandya Pipe Centre,
No.14, 1st Floor, 4th Cross,
(Nala Cross), Lalbagh Road,
Bangalore-560 027.
Represented by its Proprietor,
Sri. Veerandra N. Doshi
2. Sri. Veerandra N. Doshi,
Proprietor of M/s. Mandya Pipe
Cetnre,
No.238, Ashiyana, 13th cross,
Vakil Garden City,
Thalaghattapura,
Kanakapura Main Road,
Bangalore-560 062.
3. Sri. Himanshu D. Sanghvi,
Aged about 50 years,
R/at Flat No.1401 & 1402,
14th Floor, Mantri Tranquil
Apartments,
Off: Kanakapura Road,
Gubbalala,
2 C.C.No.117/2012
Bangalore -560 062.
And also at
M/s. Scissors Enrich Beauty and
Fitness Pvt. Ltd.
Golden Gym, No.67, 1st Floor,
15th Cross Road,
Sarakki Industrial Layout,
3rd Phase, J.P. Nagar,
Bangalore -560 078.
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: 19th January 2015
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 were introduced by this Complainant in the year 2003 through one of his relative Sri. Prakash Talreja and they became friends. The Accused persons in order to meet their financial commitments in purchase of steel factory in Gujarath had approached this Complainant for the financial assistance of Rs.20,00,000/- the Accused No.1 being the 3 C.C.No.117/2012 Company represented by Accused No.2 and No.3 approached this Complainant for the financial assistant of Rs.20,00,000/- and he by considering the request of the Accused persons, had advanced Rs.20,00,000/- by way of cheque No.284819 drawn on State Bank of India, J.C. Road branch, Bangalore to Accused No.2 and 3 who claims to the mandate holder and day-to-day in-charge of the Accused No.1. He further stated that after receipt of the amount, the Accused No.2 to 3 had executed On Demand Promissory Note in his favour by agreeing to repay the loan amount along with interest at the rate of 12% per annum. Subsequently, once again the Accused No.2 and 3 availed an additional loan of Rs.20,00,000/- by way of cheque bearing No.284824 drawn on State Bank of India, J.C. Road branch, Bangalore totally for Rs.40,00,000/-. Subsequently, the Accused had paid Rs.16,00,000/- paid towards the discharge of part of the amount due to him Complainant which was paid by him on 22/2/2010 and sought time to repay the balance amount of Rs.4,00,000/- with the interest thereon.
3. The Complainant further stated that once again the Accused have paid a sum of Rs.6,00,000/- on 22/7/2010 and totally they have repaid Rs.22,00,000/- and undertake to pay 4 C.C.No.117/2012 Rs.14,00,000/-. The Accused were due to Complainant a sum of Rs.18,00,000/- including interest.
4. He further stated that on repeated requests and demand to this Accused, the Accused No.3 on behalf of Accused No.1 had issued nine cheques towards the repayment of the loan amount cheque bearing No.737071 dtd., 22/11/2010 or Rs.2,00,000/-, cheque bearing No.097886, dtd.22/11/2010 for Rs.2,00,000/-, cheque bearing No.737072 dtd. 22/12/2010 for Rs.2,00,000/-, cheque bearing No.097887 dtd.22/12/2010 for Rs.2,00,000/, cheque bearing No.737073 dtd.22.1.2011 for Rs.2,00,000/- cheque bearing No.737074 dtd.22.2.2011 for Rs.2,00,000/-, cheque bearing No.737075 dtd.22/3/2011 for Rs.2,00,000/-, cheque bearing No.737076 dtd. 22.4.2011 for Rs.2,00,000/- and cheque bearing No.737077 dtd. 22.5.2011 for Rs.2,00,000/-. All are drawn on Indian Overseas Bank, J.P. Nagar branch, Bangalore with a request to present the said cheques for encashment.
5. He further stated that he presented the said cheques before his banker State Bank of India, CCPC, branch, J.C. Road, Bangalore for encashment. But all the said nine cheques returned 5 C.C.No.117/2012 dishonoured with an endorsement "funds insufficient" on 31/5/2011 and the same was informed to the Accused persons. He deposed that as the Accused persons have failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 27/6/2011 through his Counsel by RPAD calling upon the Accused to make payment of the cheque amount. The said notice was duly served on Accused No.1 and 2 on 28/6/2011 and 15.7.2011 but the notice issued to Accused No.3 returned dishonoured with an endorsement "insufficient address". Hence, the Complainant after collecting the correct address of Accused No.3, got issued a fresh notice on 15/7/2011 through RPAD and the said notice was duly served on Accused No.3. The Accused even in spite of receipt of Legal Notice neither chosen to make payment of the cheque amount nor they have replied the notice. The Accused No.1 to 3 intentionally knowing well that they have no sufficient funds in their bank account had issued the bogus cheques, only with an intention to cheat this Complainant and thereby the Accused No.1 to 3 had committed an offence punishable u/Sec.138 of N.I. Act.
6 C.C.No.117/2012
6. After recording sworn statement of the complainant the private complaint lodged by the complainant was registered as a criminal case, summons was issued as against the accused. The accused No.2 and 3 appeared before this court even on behalf Accused No.1 and they were enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried
7. The complainant himself got examined as PW1 and he got produced 33 documents marked as Ex.P1 and Ex.P33 and closed his side of evidence.
8. 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 they have not lead any evidence from their side.
9. I have heard the arguments on both sides and I have also perused the entire records.
10. The only point arise for my consideration is: 7 C.C.No.117/2012
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
11. 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
12. 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.
13. PW1 deposed that the Accused to meet their financial commitments and to purchase a Steel Factory at Gujarat requested him Rs.20,00,000/- through one of his relative Prakash Talreja. He deposed that he advanced a sum of Rs.20,00,000/- to these Accused. The Accused No.2 and 3 who claims to be mandate holder and day-to-day in-charge of Accused No.1 approached for 8 C.C.No.117/2012 the loan of Rs.20,00,000/-. He by considering the request of the Accused had advanced a sum of Rs.20,00,000/- through a cheque bearing No.284819 drawn on State Bank of India, J.C. Road branch, Bangalore. He further deposed that after receipt of the loan amount, the Accused No.2 and 3 had also executed a On Demand Promissory Note and Consideration Receipt by agreeing to repay the loan amount along with interest at the rate of 12% per annum.
14. He further deposed that on 22.7.2010 the Accused No.1 represented by Accused No.2 and 3 have once again borrowed an additional loan amount of Rs.20,00,000/- by way of cheque bearing No.284824 drawn on State Bank of India, J.C. Road branch, Bangalore by executing a ondemand promissory note and consideration receipt by agreeing to repay the loan amount together with interest accrued thereon. He deposed that the Accused were due of Rs.40,00,000/- out of which on 22.2.2010 the Accused have repaid a sum of Rs.16,00,000/- towards discharge of part of the amount and once again on 22.7.2010 they repaid a sum of Rs.6,00,000/- paying discharge of the part of the amount and they were due of Rs.18,00,000/-. In order to repay the remaining balance loan amount had issued nine cheques bearing No.737071 9 C.C.No.117/2012 dtd.,22/11/2010 or Rs.2,00,000/-, cheque bearing No.097886, dtd.22/11/2010 for Rs.2,00,000/-, cheque bearing No.737072 dtd. 22/12/2010 for Rs.2,00,000/-, cheque bearing No.097887 dtd.22/12/2010 for Rs.2,00,000/-, cheque bearing No.737073 dtd.22.1.2011 for Rs.2,00,000/-, cheque bearing NO.737074 dtd.22.2.2011 for Rs.2,00,000/-, cheque bearing No.737075 dtd.22/3/2011 for Rs.2,00,000/-, cheque bearing No.737076 dtd. 22.4.2011 for Rs.2,00,000/- and cheque bearing No.737077 dtd. 22.5.2011 for Rs.2,00,000/-. All are drawn on Indian Overseas Bank, J.P. Nagar branch, Bangalore.
15. He further deposed that he presented the said cheques before his banker State Bank of India, CCPC, branch, J.C. Road, Bangalore for encashment. But all the said nine cheques returned dishonoured with an endorsement "funds insufficient" on 31/5/2011 and the same was informed to the Accused persons. He deposed that as the Accused persons have failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 27/6/2011 through his Counsel by RPAD calling upon the Accused to make payment of the cheque amount. The said notice was duly served on Accused No.1 and 2 on 28/6/2011 and 10 C.C.No.117/2012 15.7.2011 but the notice issued to Accused No.3 returned dishonoured with an endorsement "insufficient address". Hence, the Complainant after collecting the correct address of Accused No.3, got issued a fresh notice on 15/7/2011 through RPAD and the said notice was duly served on Accused No.3.
16. He further deposed that the Accused even in spite of receipt of Legal Notice neither chosen to make payment of the cheque amount nor they have replied the notice. He deposed that the Accused No.1 to 3 intentionally they have no sufficient funds in their bank account had issued the bogus cheques, only with an intention to cheat this Complainant and thereby the Accused No.1 to 3 had committed an offence.
17. PW1 in order to prove his case got produced nine cheques marked as Ex.P1 to Ex.P9. He deposed that the signature found on Ex.P1 to Ex.P9 is that of this Accused No.3. He got identified the signature of this accused No.3 marked as Ex.P1(a) to Ex.P9(a) respectively. He got produced nine bank endorsements marked as Ex.P10 to Ex.P18 respectively. He got produced copy of the legal notice along with three postal receipts marked Ex.P19 to 11 C.C.No.117/2012 Ex.P22 respectively. He got produced three postal acknowledgement due cards for having served the notice on Accused No.1 to 3 marked as Ex.P23 to Ex.P25. He got produced unserved postal cover marked as Ex.P26. He got produced his bank statement along with balance sheet from 1.4.2012 to 31.3.2013 marked as Ex.P27 and Ex.P28 respectively. He got produced On Demand Promissory Note and Consideration Receipt executed by this Accused No.2 and 3 after receipt of the loan amount marked as Ex.P29 and Ex.P30 respectively. He deposed that the signature found on these documents is that of this Accused No.3 and he got identified the signature of this Accused marked as Ex.29(a) and Ex.P30(a). He got produced On Demand Promissory Note and consideration receipt executed on 22.7.2010 by this Accused marked as Ex.P31 and Ex.P32 respectively. He got identified the signature of the Accused No.3 on the said document marked as Ex.P31(a) and Ex.P32 (a). He got identified the complaint marked as Ex.P33.
18. The accused have denied the loan transaction and denied the very fact that they had borrowed a hand loan of Rs.40,00,000/- from this Complainant and they in order to discharge their 12 C.C.No.117/2012 liability to repay the loan amount, had issued Ex.P1 to Ex.P7 cheques and they were bounced. The Learned Counsel for the Accused subjected PW1 for cross-examination and he extensively cross examined the PW1 at length. PW1 in his cross-examination stated that the Accused were introduced him by his relative Sri. Prakash Talreja. He further stated that he went to the offence of this Accused on many times. He has categorically stated that the Accused have borrowed loan amount with an intention to purchase sanitary steel pipe at Gujarat and Ahmedabad.
19. PW1 further stated that he had advanced the total sum of Rs.40,00,000/- to these Accused. Out of Rs.18,00,000/- was still due from these Accused. He further stated that after receipt of the loan amount, the Accused had executed On Demand Promissory Notes and Consideration Receipts as per Ex.P29 to Ex.P32 by agreeing to repay the loan amount along with interest thereon. He further stated that the Ex.P1 to Ex.9 cheques were issued by this Accused on a same day in order to repay the loan amount at their office by Accused No.2 and 3. He further stated that the Accused themselves have written all the contents of Ex.P1 to Ex.P9 cheques 13 C.C.No.117/2012 and subsequently, they have issued the said cheques in order to repay the loan amount.
20. He further stated that he is not aware that these Accused persons have borrowed loan amount of Rs.40,00,000/- and even he did not enquire the Accused for the purpose of the loan amount. Moreover, he has stated that he has not personally met these Accused persons. Moreover, he categorically stated that the Ex.P1 to Ex.P9 cheques were given by the Accused No.2 and 3 and these cheques were signed by the Accused No.3. PW1 further stated that he is not aware when exactly the cheques were issued on which dates. Likewise, he has stated that he is not aware when exactly he issued the notice to this Accused.
21. PW1 has categorically stated that only for once he had issued the notice to the Accused persons and the same was duly served on these Accused. Though he denied the suggestion that he has not advanced any kind of loan amount to this Accused persons much less Rs.40,00,000/- and even the Accused have not issued Ex.P1 to Ex.P9 cheques towards the repayment of the loan amount. He denied the suggestion that he by misusing the cheques 14 C.C.No.117/2012 belonging to these Accused persons having by him created the same as Ex.P1 to Ex.P9 and filed this false complaint against these Accused. He further denied the suggestion that he has created Ex.P29 to Ex.P32 documents only for the purpose of this case and making false claim from this Accused.
22. PW1 in his cross-examination stated that he is an income tax assessee and he is not aware whether in his income tax returns he has disclosed about the loan transaction and also the advancement to this Accused. He further stated that he is not aware who has written the contents of Ex.P29 and Ex.P32 and even he is not aware whether the contents were written in his presence.
23. On the contrary, admittedly, the initial burden is on this PW1 to prove that as on date of Ex.P1 to Ex.9 there existing a legally enforceable debt or other liability on these Accused persons and they in order to discharge their liability, had issued Ex.P1 to Ex.P9 cheques. Though PW1 in his cross-examination denied the suggestion that he has created concocted document Ex.P1 to Ex9 cheques by misusing the cheques only with an intention to make 15 C.C.No.117/2012 an unlawful gain from these Accused and filed this false complaint.
24. On the contrary, admittedly, the Accused have not denied the contents of the Bank Statement produced before this court by PW1 marked as Ex.P27, wherein he has clearly disclosed the advancement of loan amount of Rs.40,00,000/- to these Accused through cheque and the same was encashed by these Accused. The Accused have not denied the contents of Ex.P27 documents. No doubt, the Accused have denied the Ex.P29 to Ex.P32 documents and stated that the said documents were created and concocted by this PW1 colluding with her husband.
25. On the contrary, admittedly, the Accused have not chosen to deny a fact that Ex.P1 to Ex.9 cheques were belong to them and even they have did not chosen to deny their signature found on Ex.P1 to Ex.P9 marked as Ex.P1(a) to Ex.P9(a). Likewise, the Accused have not chosen to deny their signatures found on Ex.P29 and Ex.P32 documents. No suggestion put to PW1 during his cross-examination by denying their signatures found on these 16 C.C.No.117/2012 documents. The Accused did not chosen to deny a fact that Ex.P1 to Ex.P9 cheques were bounced for the reason "funds insufficient" in their bank account. Likewise, the Accused have not even chosen to deny the issuance of Ex.P.19 notice and also receipt of notice as per Ex.P20 to Ex.P26. Admittedly, even according to PW1 he got issued the Legal Notice to the Accused No.1 to 3 on 15.7.2011 and the said notice was duly served upon the Accused.
26. No doubt, the PW1 in his complaint averments as well as in his affidavit evidence categorically deposed that on 27.6.2011 immediately after the receipt of Ex.P10 to Ex.P18 bank endorsements got issued the Legal Notice calling upon the Accused No.1 to 3 to make payment of the cheque amount and the said notice was duly served upon the Accused No.1 and 2 and the same was not served on Accused No.3. Admittedly, the said notice was not produced before this court by PW1 even in spite of sufficient opportunities. On the contrary, the Ex.P19 document discloses that the notice was issued on 15.7.2011 to Accused No.1 to 3 and the said notice was duly served on Accused No.1 to 3. By 17 C.C.No.117/2012 the time the Ex.P19 notice was sent to these Accused persons, the limitation to send the notice to the Accused as per Sec.138 of N.I. Act was already completed. PW1 has not issued the notice well within the period of limitation.
27. Moreover, the oral testimony of PW1 is contrary to the documentary evidence marked as Ex.P19. PW1 has categorically stated that only once he had issued a notice in favour of this Accused calling upon them to make payment of the cheque amount. On the contrary, the notice marked as Ex.P19 is a time barred notice. No doubt, in Ex.P19, it has been disclosed that even on 15.7.2011, the Complainant got issued the Legal Notice and the was duly served upon these Accused.. The contents of Ex.P19 is contrary to the oral evidence of PW1 deposed before this court through her affidavit wherein he has deposed that on 27.6.2011 he got issued the Legal Notice and the same was duly served upon the Accused No.1 and 2 on 28.6.2011.
28. The oral and documentary evidence adduced before this court by the PW1 with respect to issuance of notice is fully contrary to each other. Moreover, the Ex.P20 to Ex.P25 documents 18 C.C.No.117/2012 disclose that a postal cover was sent to Accused No.1 to 3 on 27.6.2011. The said documents were not corroborated with Ex.P19 document. This clearly establishes that the PW1 has not issued the notice well within the statutory period of limitation and therefore, the very complaint filed by her is not maintainable. PW1 is unable to explain before this court why he has sent two notices to the Accused No.1 to 3 on different dates.
29. Likewise, PW1 has failed to convince this court when the exact date of cause of action arose to file this complaint before this court. Even according to this Complainant he filed this complaint before this court on 10.8.2011. Even according to PW1 as per his oral evidence, the first notice was served on these Accused persons on 28.6.2011. The cause of action started running from 29.6.2011 to file this complaint as per the provision of Sec.138 of N.I. Act. However, she has not this complaint before this court well within the period of 30 days from the date of serve of notice. On the contrary, the Complainant has filed this complaint beyond the period of limitation after expiry of 30 days from the date of service of notice. As I have discussed supra, any notice subsequently, once 19 C.C.No.117/2012 the cause of notice started running will not stop the limitation to file the complaint before this court. Even on this count, the complaint filed by the Complainant is not maintainable.
30. Though the Complainant by adducing the oral and documentary evidence before this court to prove that he had advanced a sum of Rs.40,00,000/- to these Accused persons through cheque and the same was encashed by these Accused persons as evident in his Bank Ledger Extract marked as Ex.P24 and even by adducing the oral and documentary evidence before this court proved that the Accused persons after receipt of loan amount of Rs.40,00,000/- had executed Ex.P29 to Ex.P32 Ondemand Promissory Notes and Consideration Receipts and subsequently, in order to repay the loan amount had issued Ex.P1 to Ex.P9 cheques and the same were bounced for the reasons "funds insufficient".
31. On the contrary, the Complainant has utterly failed to prove that he has filed this complaint well within the period of limitation as per the provisions of Sec. 138 of N.I. Act. As I have discussed supra, the Complaint filed by the Complainant is a time 20 C.C.No.117/2012 barred complaint and no application was filed by this Complainant in support of his complaint for condonation of delay in filing the complaint. In such situation, the very complaint is not maintainable.
32. Though the Accused persons have not lead any evidence before this court to prove their defence and also to rebut the presumption available to this Complainant u/Sec 139 of N.I. Act. It is also well settled principle of law that the entire burden is on this Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act by adducing convincing evidence before this court. On the contrary, it is also well settled principal of law that the Accused can very well rebutted the presumption available to this Complainant by preponderance of probabilities and even by cross-examining PW1 by eliciting truth from his mouth. As I have discussed supra, in this proceedings the Complainant has utterly failed to prove that he has approached this court well within the period of limitation and therefore, the Accused persons are liable to punishment in accordance with law. 21 C.C.No.117/2012
33. The Learned Counsel for the Accused has vehemently argued that the very complaint filed by the Complainant is not maintainable and same is barred by limitation. He has argued that by the time Ex.P15 notice was sent by this PW1, the limitation was already completed to issue notice as per provisions of Sec.138 of N.I. Act and therefore, the very notice issued as per Ex.P19 is a defective notice. He further argued that if at all for the purpose of arguments it is has to be believed that the Complainant on 27.6.2011 had issued the notice calling upon the Accused to make payment of the cheque amount and the same was served upon these Accused. Even the complaint filed by the Complainant is barred by limitation as the same is not filed before 30 days from the date of service of notice.
34. He has further argued that the Complainant has not filed separate complaint for condonation of delay in filing the complaint and therefore, by giving the benefit of doubt in favour of this Accused, the Accused persons have to be acquitted. He has argued that the Complainant had advanced huge loan amount to a stranger and even without proving the fact that these Accused persons in order to repay the loan amount had issued the cheques, 22 C.C.No.117/2012 filed this complaint and these facts create a very serious doubt about the case of the Complainant and also about his conduct and even on this count, the Accused have to be acquitted. His arguments is fully convinced this court. Admittedly, notice issued as per Ex.P19 is after 50 days from the dishonour of Ex.P1 to Ex.P9 cheques which is time barred. Moreover, the Complaint filed by the Complainant is also barred by limitation.
35. The PW1 himself in his cross-examination admitted that Ex.P1 to Ex.P9 cheques were not issued by this Accused persons in his favour. Even according to him, his husband handed over Ex.P1 to Ex.P9 cheques to him. These facts create a doubt in the mind of court about the issuance of Ex.P1 to Ex.P9 cheques by this Accused persons. The Learned Counsel for the Accused in support of his arguments also relied on the judgments reported in (2013) 1 SCC 327 between Reverend Mother Marykutty Vs. Reni C. Kottaram and another sub head (C) wherein it is held that;
" Cheque not in handwriting of Accused - Signature of - held, it strengthens defence version that cheque was not issued in favour of Complainant"
(2009) 2 SCC 513 between Kumar Exports Vs. Sharma Carpets sub head (B) wherein it is held that;
23 C.C.No.117/2012
"presumptions under it is to facilitate negotiability of an instrument - it is for this purpose Section 118 has departed from general law on contract wherein existence of consideration has to be proved in the first instance"
(2009) 1 SCC 492 between P. Venugopal Vs. Madan P. Sarathi sub head (B) wherein it is held that;
"Notice of demand - Proof of notice- Held, essentially is a question of fact - Trial Court believing the evidence of postal peon (postman) that notice was delivered to appellant and rejecting contrary opinion of the handwriting expert - Held, would not interfere with such finding of fact under Article 136 of Constitution of India."
(2013) 3 SCC 86 between Vijay Vs. Laxman and another sub Head (B) wherein it is held that;
"Comparative degree of onus of proof on complainant and drawer of cheque - Reiterated, per Thakur, J. (supplementing), standard of proof required for rebutting the presumptions under Sec.118 and 139 of the N.I. Act is not as high as that required of the prosecution and is rebuttable on the preponderance of probabilities - Evidence Act, 1872- Sec.4 and 114 - Rebuttal of presumptions by Accused - Standard of proof.
(2014) 2 SCC 236 between John K. Abraham Vs. Simon C. Abraham and another wherein it is held that;
Section 118 r/w 139 of N.I. Act burden lies on Complainant to show that he had requisite funds for advancing the sum of money/loan in question to Accused , (ii) that the issuance of cheque by Accused in support of repayment of money advanced was true and (iii) that the Accused was bound to make payment as had been agreed while issuing cheque in favour of the Complainant - in the present case the 24 C.C.No.117/2012 Complainant not ware of the date when substantial amount of Rs.1,50,000/- was advanced by him to the appellant/accused - the Complainant failed to produce relevant documents in support of the alleged source for advancing money to Accused -
Complainant also not aware as to when and where the transaction took place for which the cheque in question was issued to him by the Accused -
Complainant also not sure as to who wrote the cheque and making contradictory statement in this regard - In view of the said serious defects/lacunae in evidence of Complainant , the Accused is entitle for acquittal."
36. The arguments canvassed by the Learned Counsel for the Accused is fully convinced this court and therefore it is accepted. On the contrary, the learned Counsel for the Complainant has argued that the Complainant by adducing oral and documentary evidence before this court marked as Ex.P27 and Ex.P28 proved the loan transaction and also advancement of loan amount to these Accused amounting to Rs.40,00,000/-. He further argued that the Accused have not denied the contents of Ex.p24 wherein it has been clearly disclosed that the Accused persons have encashed a sum of Rs.40,00,000/- from the bank account of this Complainant. Though this arguments convinced this court on the contrary, as I have discussed supra, the complaint filed by the Complainant before this court, is hopelessly barred by limitation. 25 C.C.No.117/2012
37. In such situation, the arguments canvassed by the learned Counsel for the Complainant that this Complainant before filing of this complaint has followed all the procedures prescribed u/Sec.138 of N.I. Act and these Accused persons even after receipt of notice have neither chosen to make payment of the cheque amount nor they have complied the notice by paying the cheque amount and therefore, by considering all these aspects, the Accused have to be convicted in accordance with law is not convinced this court and it cannot be accepted.
38. As I have discussed supra, the burden is on this Complainant to prove that he has filed this complaint well within the period of limitation as per provisions of Section 138 of N.I. Act and these Accused persons even in spite of receipt of the Legal Notice issued well within the period of limitation failed to make payment of the cheque amount and thereby they have committed an offence. Here in this case, the Complainant has failed to prove these facts to the satisfaction of the court. Without sufficient proof before this court, it is not possible to believe the case of the Complainant. The oral and documentary evidence adduced before this court by the Complainant is not corroborated with each other 26 C.C.No.117/2012 and it is not sufficient and convincing to bring home the guilt of the Accused beyond all reasonable doubts.
39. 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 is discharge his burden to the satisfaction of the court, the presumption available u/Sec.139 of N.I. Act is not available to this Complainant. Unless the Complainant is discharge his initial burden, the burden will not shift on these Accused to rebut the presumptions available u/Sec.139 of N.I. Act.
40. Here in this case, the Accused have successfully rebutted the presumptions available to this Complainant u/Sec.139 of N.I. Act. The Complainant has utterly failed to prove that the Accused have committed an offence punishable u/Sec. 138 of N.I. Act and therefore, they are liable for sentence. In such situation, the benefit of doubt goes in favour of these Accused. Hence, by taking into consideration the facts and circumstances and evidence available on record, I answer Point No.1 in the Negative.
27 C.C.No.117/2012
41. 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 him is verified and then pronounced by me in the Open Court on this the 19th day of January, 2015) (ISHRATH JAHAN ARA) XIX ADDL.CMM Bangalore ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 C.K. Menda (HUF) Witnesses examined on behalf of the Accused: Nil Documents marked on behalf of the Complainant:
Ex.P.1 to Ex.P9 9 cheques Ex.P.1(a) to Ex.P9(a) Signature of the accused Ex.P.10 to Ex.P18 9 bank endorsements Ex.P.19 to Ex.P22 copy of the legal notice along with three postal receipts Ex.P.23 to Ex.P25 Three postal acknowledgement due cards Ex.P.26 Unserved postal cover marked Ex.P.27 & Ex.P28 Bank statement along with balance sheet from 1.4.2012 to 31.3.2013 Ex.P.29 & Ex.P30 On Demand Promissory Note and Consideration Receipt 28 C.C.No.117/2012 Ex.P.29(a) & Ex.P30(a) signature found on Ex.P29 and Ex.P39 documents Ex.P31 & Ex.P32 Demand Promissory Note and consideration receipt Ex.P31(a) & Ex.P32(a) signature of the Accused on Ex.P31 and Ex.P32.
Ex.P33 Complaint.
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore.
29 C.C.No.117/2012
Judgment pronounced in the open court
vide separate order
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.
19th A.C.M.M, Bangalore