Bangalore District Court
Sanctum Health Care Pvt.Ltd vs Persons: Shruthi Enterprises on 21 May, 2018
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this 21st day of May , 2018.
Present: Smt Shirin Javeed Ansari, BA LL.B(Hon's)LL.M
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No. 13682/2016
Complainant: Sanctum Health Care Pvt.Ltd
No.43,Rissldar Street
Seshadripuram
Bangalore 20
Rep.by its Managing Director
Mohammed Khaleelulla
Major
( By Sri ARKU - Advocate )
- Vs -
Accused persons: Shruthi Enterprises
Proprietor
Sri.Nagaraj Nadiger
No.129, Balaji Layout
Kenchanahalli
Yelahanka
Bangalore 64.
And also at
No.433, Ground Floor
15th B cross
Sector B
New Yelahanka Town
Bangalore 64.
( By Sri.S.Manjunath -Advocate )
Offence complained of: U/s. 138 of Negotiable Instruments
Act.
Plea of accused persons: Pleaded not guilty.
Final Order: Accused is acquitted .
Date of order: 21.5.2018
2 C.C.No.13682/2016
JUDGMENT UNDER SEC.355 OF CR.PC
The complainant filed this complaint under Sec.200
Cr.P.C. against the accused for the offence punishable
under Sec.138 Negotiable Instruments Act (herein after
called the N.I. act for reference)
2. The case of the prosecution is as under :
The complainant submits that the complainant is a
Pharmacist doing business of supplying of all kinds of
drugs for the accused shop running under the name and
style of M/s Sanctum Health Care Pvt ltd, for which the
complainant is the Managing Director. The accused is
doing the business of medicine distributors under the
name and style M/s.Shruthi Enterprises. As usual the
complainant has supplied medicines totally of a sum of
Rs.7,46,398/- to the accused and in lieu of the said
payment the accused issued 38 post dated cheques in
favour of the complainant company as follows :
Cheque Date Drawn On
No./Amount.
516630 for 30.11.2015 Syndicate Bank, Yelahanka New Town,
Rs.16,458
Bangalore
516631 for 05.12.2015 Syndicate Bank, Yelahanka New Town,
Rs.35,870
Bangalore
3 C.C.No.13682/2016
516632 for 12.12.2015 Syndicate Bank, Yelahanka New Town,
Rs.21,522/-
Bangalore
516633 for 18.12.2015 Syndicate Bank, Yelahanka New Town,
Rs.30,384/-
Bangalore
516634 for 24.12.2015 Syndicate Bank, Yelahanka New Town,
Rs.31,228
Bangalore
516635 for 30.12.2015 Syndicate Bank, Yelahanka New Town,
Rs.21,000/-
Bangalore
516636 for 05.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.21,000/-
Bangalore
516637 for 12.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.21,000/-
Bangalore
516638 for 18.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.16,458/-
Bangalore
516639 for 24.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.20,256/-
Bangalore
516645 for 05.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.25,320/-
Bangalore
516646 for 10.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.20,000/-
Bangalore
516647 for 15.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.20,512/-
Bangalore
516648 for 17.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.1,899/-
Bangalore
516663 for 06.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.27,852/-
Bangalore
516664 for 13.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.27,852/-
Bangalore
516665 for 18.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.7,913/-
Bangalore
516666 for 20.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.16,205/-
Bangalore
516668 for 22.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.16,880/-
Bangalore
4 C.C.No.13682/2016
516669 for 28.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.16,880/-
Bangalore
516670 for 31.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.21,994/-
Bangalore
516671 for 06.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.18,568/-
Bangalore
516672 for 16.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.18,658/-
Bangalore
516673 for 22.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.18,568/-
Bangalore
516674 for 12.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.7,913/-
Bangalore
516678 for 14.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.16,814/-
Bangalore
516679 for 20.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.16,814/-
Bangalore
516680 for 20.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.20,737/-
Bangalore
516681 for 26.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.20,737.50
Bangalore
516682 for 28.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.15,825/-
Bangalore
516685 for 16.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.19,781/-
Bangalore
516686 for 20.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.7,913/-
Bangalore
516687 for 25.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.15,825/-
Bangalore
516688 for 28.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.15,825/-
Bangalore
148575 for 21.11.2015 Karnataka Bank, Yelahanka New Town,
Rs.22,155/-
Bangalore
148576 for 26.11.2015 Karnataka Bank, Yelahanka New Town,
Rs.22,155/-
Bangalore
5 C.C.No.13682/2016
148577 for 29.11.2015 Karnataka Bank, Yelahanka New Town,
Rs.22,155/-
Bangalore
148578 for 29.11.2015 Karnataka Bank, Yelahanka New Town,
Rs.21,522/-
Bangalore
3. The complainant further submits that upon the
assurance given by the accused person, the complainant
presented the above said cheques through his banker i.e.,
Canara Bank Bangalore on 11.2.2016. But to the utter
surprise the said cheques came to be dishonored with
bank endorsement as "funds insufficient" on 12.2.2016 .
After the dishonor of the said cheques the fact was
intimated to the accused but the accused has not paid the
said amount. Thereafter the accused requested the
complainant and instructed him to present the above said
cheques for encashment once again. The complainant at
the request of the accused person presented all the 38
cheques for the 2nd time on 24.3.2016 at his bank and
once again all the cheques came to be dishonored for the
2nd time as per the return memo dt.28.3.2016 for the
reason "instrument out dated/ stale" and thereafter the
complainant brought this to the knowledge of the accused
immediately regarding the failure of the cheques and
6 C.C.No.13682/2016
requested to make the payment . But the accused did not
heed to the request made by the complainant .
4. It is further submitted by the complainant that
the complainant issued a letter to the accused on
2.4.2016 requesting him to settle the payment
immediately. The complainant got issued the legal notice to
the accused on 23.4.2016 in respect of the above
dishonour of the cheques and the said notice is duly served
upon the accused. Despite of that the accused neither
paid the cheque amount nor replied to the said notice. The
accused has committed an offence as contemplated
u/s.138 Negotiable Instrument Act . The accused has also
committed an offence punishable u/s.415 , 417 of IPC
The accused himself is liable to be prosecuted u/s.140 of
Negotiable Instrument Act and u/s.417 and 420 of IPC.
Hence, the complainant prays to convict the accused
person and award the compensation in favour of the
complainant to the tune of cheque amount . Hnce, this
complaint.
5. In pursuance of the process issued, the accused
person appeared before the court on 6.1.2017 and is on
bail.
7 C.C.No.13682/2016
6. Copy of the prosecution papers are furnished to
the accused person as required under law.
7. Plea under Sec.138 N.I.Act is framed , read over
and explained to the accused person in vernacular. The
accused person pleaded not guilty and claimed the trial.
8. PW1- got examined and got marked the
documents at Ex.P.1 to Ex.P.77 for the complainant .
9 . The incriminating circumstances found in the
case of prosecution against the accused is read over and
explained in vernacular. The accused denied the same.
The accused himself is examined as DW1 But, no
documents are marked on behalf of the accused person .
10. Heard arguments and perused the material on
record.
11. On the basis of the contents of the complaint
the following points arise for my consideration. :
1. Whether the complainant proves
beyond reasonable doubt that
the accused is/are guilty of alleged
offence?
2. What order ?
8 C.C.No.13682/2016
12. My findings to the above points
are as follows:
Point No.1 :In the Negative.
Point.No.2 :As per final order for
the following:
REASONS
13.Point No.1: It is the case of the complainant
that the complainant Pharmacist doing business of
supplying of all kinds of drugs for the accused shop
running under the name and style of M/s Sanctum
Health Care Pvt ltd, for which the complainant is the
Managing Director. The accused is doing the business of
medicine distributors under the name and style
M/s.Shruthi Enterprises. As usual the complainant has
supplied medicines totally of a sum of Rs.7,46,398/- to
the accused and in lieu of the said payment the accused
issued 38 post dated cheques in favour of the complainant
company as follows :
Cheque Date Drawn On
No./Amount.
516630 for 30.11.2015 Syndicate Bank, Yelahanka New Town,
Rs.16,458
Bangalore
516631 for 05.12.2015 Syndicate Bank, Yelahanka New Town,
Rs.35,870
Bangalore
516632 for 12.12.2015 Syndicate Bank, Yelahanka New Town,
Rs.21,522/-
Bangalore
9 C.C.No.13682/2016
516633 for 18.12.2015 Syndicate Bank, Yelahanka New Town,
Rs.30,384/-
Bangalore
516634 for 24.12.2015 Syndicate Bank, Yelahanka New Town,
Rs.31,228
Bangalore
516635 for 30.12.2015 Syndicate Bank, Yelahanka New Town,
Rs.21,000/-
Bangalore
516636 for 05.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.21,000/-
Bangalore
516637 for 12.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.21,000/-
Bangalore
516638 for 18.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.16,458/-
Bangalore
516639 for 24.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.20,256/-
Bangalore
516645 for 05.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.25,320/-
Bangalore
516646 for 10.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.20,000/-
Bangalore
516647 for 15.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.20,512/-
Bangalore
516648 for 17.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.1,899/-
Bangalore
516663 for 06.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.27,852/-
Bangalore
516664 for 13.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.27,852/-
Bangalore
516665 for 18.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.7,913/-
Bangalore
516666 for 20.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.16,205/-
Bangalore
516668 for 22.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.16,880/-
Bangalore
516669 for 28.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.16,880/-
Bangalore
10 C.C.No.13682/2016
516670 for 31.01.2016 Syndicate Bank, Yelahanka New Town,
Rs.21,994/-
Bangalore
516671 for 06.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.18,568/-
Bangalore
516672 for 16.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.18,658/-
Bangalore
516673 for 22.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.18,568/-
Bangalore
516674 for 12.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.7,913/-
Bangalore
516678 for 14.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.16,814/-
Bangalore
516679 for 20.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.16,814/-
Bangalore
516680 for 20.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.20,737/-
Bangalore
516681 for 26.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.20,737.50
Bangalore
516682 for 28.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.15,825/-
Bangalore
516685 for 16.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.19,781/-
Bangalore
516686 for 20.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.7,913/-
Bangalore
516687 for 25.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.15,825/-
Bangalore
516688 for 28.02.2016 Syndicate Bank, Yelahanka New Town,
Rs.15,825/-
Bangalore
148575 for 21.11.2015 Karnataka Bank, Yelahanka New Town,
Rs.22,155/-
Bangalore
148576 for 26.11.2015 Karnataka Bank, Yelahanka New Town,
Rs.22,155/-
Bangalore
148577 for 29.11.2015 Karnataka Bank, Yelahanka New Town,
Rs.22,155/-
Bangalore
11 C.C.No.13682/2016
148578 for 29.11.2015 Karnataka Bank, Yelahanka New Town,
Rs.21,522/-
Bangalore
14. The complainant further submits that upon the
assurance given by the accused person, the complainant
presented the above said cheques through his banker i.e.,
Canara Bank Bangalore on 11.2.2016. But to the utter
surprise the said cheques came to be dishonored with
bank endorsement as "funds insufficient" on 12.2.2016.
Even after the dishonour of the said cheques the fact was
intimated to the accused but the accused has not paid the
said amount. Thereafter the accused requested the
complainant and instructed him to present the above said
cheque for encashment once again. The complainant at
the request of the accused person presented all the 38
cheques for the 2nd time on 24.3.2016 at his bank and
once again all the cheques came to be dishonored for the
2nd time as per the return memo dt.28.3.2016 for the
reason "instrument out dated/ stale" and thereafter the
complainant brought this to the knowledge of the accused
immediately regarding the failure of the cheque and
requested to make the payment but the accused did not
heed to the request made by the complainant .
12 C.C.No.13682/2016
15. It is further submitted by the complainant that
the complainant issued a letter to the accused on
2.4.2016 requesting him to settle the payment
immediately. The complainant got issued the legal notice to
the accused on 23.4.2016 in respect of the above
dishonour of the cheques and the said notice is duly served
upon the accused. Despite of that , the accused neither
paid the cheque amount nor replied to the said notice. The
accused has committed an offence as contemplated
u/s.138 Negotiable Instrument Act. The accused has also
committed an offence punishable u/s.415 , 417 of IPC.
The accused himself is liable to be prosecuted u/s.140 of
Negotiable Instrument Act and u/s.417 and 420 of IPC.
16. On the other hand on going through the cross
examination of PW1 it is found that it is the defence of the
accused person that the complainant has filed false and
baseless case against the accused person. The complainant
having malafide intention against the accused and to get
unlawful gain from the accused person , the present
complaint is being filed. It is further submitted by the
accused that the accused has done the business with the
complainant but paid 80% of the cheque amount which
13 C.C.No.13682/2016
has been submitted before this court. It is further
submitted by the accused that he has paid Rs.1,20,000/-
of this transaction, but the complainant falsely implicated
the accused in the present case in order to achieve his
malafide intention. The accused has given cheques to the
complainant only for security purpose. The accused has
issued the post dated cheques to the complainant by
receiving the medical products by monthly way as a loan
of that medical products as the accused had to sell the
medical products and collect the bills from medical stores
and then accused had to pay it to the complainant month
by month. On this transaction, the accused had to carry on
the business with the complainant and he had paid to the
complainant and the complainant had to give
acknowledgement for having received the money.
Therefore, the accused submits before this court to
dismiss the complaint with costs.
17. The accused at the time of evidence produced the
statement, from 1.4.15 to 12.12.15 , 1.4.15 to 8.1.16.
1.4.15 to 2.1.16 . But the said documents are not marked
before the court since they were only a xerox copies.
Absolutely the documents does not bear any seal or
14 C.C.No.13682/2016
signature of any person . Therefore, the same is not
marked.
18. In this back ground it is the case of the
complainant that the accused has issued 38 cheques to
the complainant towards the discharge of his liability for
having purchased the medicines from the complainant to
the tune of Rs.7,46,398/-. But upon presentation for the
1st time the said cheques returned with endorsement
"Funds Insufficient", on various dates as mentioned in
the respective cheque return memos. Further as per the
request made by the accused himself, the complainant
produced the said cheques for the 2nd time as per the
dates mentioned in the cheque return memos. But, the
said cheques again returned with endorsement instrument
outdated, stale. This aspect of the matter shows that the
complainant presented the cheques in question when the
instrument became stale. Despite of this, the complainant
got issued legal notice to the accused person on
23.4.2016, and the same is served upon the accused
person. This aspect of the matter is clear from Ex.P.77
the legal notice dt.23.4.2016.
15 C.C.No.13682/2016
19. In all , as per the complainant the accused has
issued 38 cheques in favour of the complainant . On
careful and meticulous perusal of the entire material on
record it is found that the cheques issued by the accused
person in favour of the complainant have returned for the
following reason for the 1 and the 2nd time.
cheque amount Reason for Reason for
Sl. No. & dt. return 1 st time return 2 nd time
No and date and date
1. 516630 16,458 "Funds instrument
dt 30.1.15 Insufficient outdated/stale
dt.12.2.2016 dt.28.3.2016.
2. 516631 35,870 "Funds instrument
dt.5.12.15 Insufficient" outdated/stale
dt.11.2.2016 dt.28.3.2016.
3. 516632 21,522 "Funds instrument
dt.12.12.1 Insufficient" outdated/stale
5 DT.11.2.2016 dt.28.3.2016.
4. 516633 30,384 "Funds instrument
dt.1812.15 Insufficient" outdated/stale
. dt.11.2.2016 dt.28.3.2016.
5. 516634 31,228 "Funds instrument
dt.29.12.1 Insufficient" outdated/stale
5 dt.11.2.2016 dt.28.3.2016.
6. 516635 21,000 "Funds title of account
dt.30.12.1 Insufficient" required
5 dt.11.2.2016 dt.28.3.2016
7. 516636 21,000 "Funds title of account
dt.5.1.16 Insufficient", required
dt.11.2.2016 dt.28.3.2016
8. 516637 21,000 "Funds title of account
dt.11.1.16 Insufficient" required
dt.11.2.2016 dt.28.3.2016
9. 516638 16,458 "Funds title of account
dt.18.1.16 Insufficient" required
dt.11.2.2016 dt.28.3.2016
10. 516639 20,256 "Funds title of account
dt.24.1.16 Insufficient" required
16 C.C.No.13682/2016
dt.11.2.2016 dt.28.3.2016
11. 516645 25,320 "Funds Instrument
dt.5.1.16 Insufficient" stale/outdated
dt.11.2.2016 dt.28.3.2016
12 516646 20,000 "Funds "Funds
dt.10.1.16 Insufficient", Insufficient"
dt.11.2.2016 dt.28.3.2016
13 516647 20,512 "Funds Title of account
dt.15.1.16 Insufficient" required
dt.11.2.2016 dt.28.3.2016
14 516648 1,899 "Funds Title of account
dt.17.1.16 Insufficient", required
dt.11.2.2016 dt.28.3.2016
15 516663 27,852 "Funds "Funds
dt.6.2.16 Insufficient", Insufficient",
dt.11.2.2016 dt.28.3.2016
16. 516664 27,852 "Funds "Funds
dt.13.2.16 Insufficient" Insufficient",
dt.16.2.2016 dt.28.3.2016
17. 516665 7,913 cheque cheque
dt.18.2.16 irregularly drawn irregularly drawn
amount in words amount in words
and figures differs and figures differs
dt.20.2.2016 dt.28.3.2016
18. 516666 16,205 "Funds "Funds
dt.20.2.16 Insufficient", Insufficient",
dt 22.2.16 dt.28.3.16
19. 516668 16,880 "Funds "Funds
dt 22.1.16 Insufficient", Insufficient"
dt.25.1.16 dt.28.3.16
20. 516669 16,880 "Funds title of account
dt.28.1.16 Insufficient", required
dt.11.2.16 dt.28.3.16
21. 516670 21,994 cheque "Funds
dt.31.1.16 irregularly drawn Insufficient"
amount in words dt.28.3.16
and figures differs
dt.11.2.2016
22. 516671 18,568 "Funds "Funds
dt.6.2.16 Insufficient", Insufficient",
dt.11.2.16 dt.28.3.16
17 C.C.No.13682/2016
23. 516672 18,658 "Funds "Funds
dt.16.2.16 Insufficient", Insufficient",
dt.17.2.16 dt.28.3.16
24. 516673 18,568 "Funds "Funds
dt.22.2.16 Insufficient", Insufficient",
dt.23.2.16 dt.28.3.16
25. 516674 7,913 "Funds "Funds
dt.12.2.16 Insufficient", Insufficient",
dt.15.2.16 dt.28.3.16
26 516678 16,814 "Funds "Funds
dt.14.2.16 Insufficient", Insufficient",
dt.16.2.16 dt.28.3.16
27. 516679 16814 "Funds "Funds
dt.20.2.16 Insufficient", Insufficient",
dt.22.2.16 dt.28.3.16
28. 516680 20,737 "Funds "Funds
dt.20.2.16 Insufficient", Insufficient",
dt.22.2.16 dt.28.3.16
29. 516681 20,737.50 cheque "Funds
dt.26.2.16 irregularly drawn Insufficient",
amount in words dt.28.3.16
and figures differs
29.2.16
30. 516682 15,825 "Funds "Funds
dt.28.2.16 Insufficient", Insufficient"
dt.1.3.16 dt.28.3.16
31. 516685 19,781 "Funds "Funds
dt.16.2.16 Insufficient", Insufficient"
dt.20.2.16 dt.28.3.16
32. 516686 7,913 "Funds "Funds
dt.20.2.16 Insufficient", Insufficient"
dt. 22.2.16 dt.28.3.16
33. 516687 15,825 "Funds "Funds
dt.25.2.16 Insufficient", Insufficient",
dt.26.2.16 dt.28.3.16
34. 148575 22,155 "Funds instrument
dt.21.11.15 Insufficient", outdated/stale
dt 12.2.16 28.3.16
35. 148576 22,155 "Funds instrument
dt.26.11.15 Insufficient", outdated and
dt 11.2.16 stale dt. 28.3.16
36 148577 22,155 "Funds instrument
dt.29.11.15 Insufficient", outdated and
dt 11.2.16 stale dt. 28.3.16
18 C.C.No.13682/2016
37. 148578 21,522 "Funds instrument
dt.29.11.15 Insufficient" outdated and
dt.12.2.16 stale dt. 28.3.16
38. 516688 15,825 "Funds "Funds
dt.28.2.16 Insufficient" Insufficient",
dt. 1.3.16 dt.28.3.16.
20. On careful perusal of all the cheques marked
before this court, it is found that the cheques mentioned
at Sl.No.1 to 16 , 18 to 20, 22 to 28 and 30 to 38 have
been dishonored for the reason "Funds Insufficient" when
presented for the 1st time. The cheque mentioned at
Sl.No.1, is dishonored vide memo dt.12.2.2016, and the
cheque mentioned at Sl.No.2 to 15 is dishonored vide
memo dt.11.2.2016. The cheque mentioned at Sl.No.16
dishonored vide memo dt.16.2.1016. The cheques
mentioned at Sl.No.18 is dishonored vide memo
dt.22.2.2016 . The cheques mentioned at Sl.No.19 and 20
are dishonored vide memo dt.25.1.16 and 11.2.16. The
cheques mentioned at Sl.No.22 to 28 are dishonored vide
memo dt.11.2.2016, 17.2.2016, 22.3.16, 15.2.16, 16,2,16,
22.2.16, 22.2.16 respectively. The cheques mentioned at
Sl.No.30 to 38 are dishonored vide memo dt.1.3.16. ,
22,2,16, 22.2.16, 26.2.16, 12.2.16, 11.2.16, 11.2.16 ,
12.2.16, 1.3.16 respectively. But, on further perusal of
19 C.C.No.13682/2016
the materials available on record it is found that despite
the cheques mentioned at Sl.No.1 to 16, the cheques
mentioned to 16, at Sl.No.18 to 20, the cheques mentioned
at Sl.No.22 to 28, the cheques mentioned at Sl.No.30 to 38
have been dishonored for the reason "Funds Insufficient"
on the respective dates as mentioned supra and the period
of limitation as per the provisions of Negotiable Instrument
Act, wherein the complainant is required to issue notice to
the accused person within 15 days from the date of
dishonor of the respective cheques. But, Despite of this ,
the complainant has not at all issued any notice
pertaining to the cheques as stated supra within 15 days
from the date of dishonor of the respective cheques. As per
the say of the complainant , as per the request and the
instructions given by the accused person the complainant
represented the cheques mentioned at Sl.No.1 to 16, 18 to
20 , 22 to 28 , 30 to 38 on 24.3.2016 with his banker and
the said cheques mentioned at sl.no. 1 to 5 dishonored for
the reason instrument outdated and stale vide memo
dt.28.3.16. The cheques mentioned at Sl.No.6 to 10
returned with reason title of account required vide memo
dt.28.3.16 and the cheque mentioned at Sl.No.11 returned
with reason instrument stale/outdated vide memo
20 C.C.No.13682/2016
dt.28.3.16. The cheques mentioned at Sl.No.12 , 15 and
16 returned for the reason "Funds Insufficient", vide memo
dt.28.3.16. And the cheques mentioned at Sl.No.13 and 14
returned with reason title of the account required vide
memo dt.28.3.16. Further the cheques mentioned at
SL.No.18 to 20 were also returned for the reason "Funds
Insufficient" and title of the account required respectively
vide memo dt.28.3.16. The cheques mentioned at Sl.No.22
to 28 returned for the reason "Funds Insufficient", vide
memo dt.28.3.16. The cheques mentioned at Sl.No.30 to 33
and 38 returned for the reason "Funds Insufficient", vide
memo dt.28.3.16 and the cheques mentioned at Sl.No.34,
to 37 returned for the reason instrument out dated and
stale , vide memo dt.28.3.16.
21. The period of limitation for all the above
mentioned cheques dishonored for the reason "Funds
Insufficient" when presented for 1st time vide respective
memos mentioned above is 15 days from the respective
dates as mentioned above. But, the complainant has not
issued any legal notice within the said period of respective
15 days. The complainant states in the complaint as well
as deposed before the court that as per the instructions of
21 C.C.No.13682/2016
the accused person he represented the said cheques. But,
the representation of the above mentioned cheques is
almost after one month. The complainant has not
produced any cogent and convincing material before this
court to show that only at the instructions of the accused
person he represented the said cheques. No ordinary
prudent man who knows the consequences will keep
quite for a period of expiry of limitation. If at all it was
instructed by the accused person himself, the complainant
would have atleast attempted to present the said cheques
within the period of limitation in order to preserve his right
to initiate action against the accused person . But no such
attempt is forthcoming on the part of the complainant to
prove this aspect of the matter. The complainant has
utterly failed to prove this aspect of the matter . He has
not produced any cogent and convincing materials also.
22. Further, the cheques mentioned at Sl No.17 , 21 ,
29 have been dishonored for the reason "cheques
irregularly drawn amount in words and figures differs vide
memo dt.20.2.16, 11.2.16, 29.2.16 respectively. The
complainant has represented the said cheques on
24.3.2016 and the cheque mentioned at Sl.No.17 again
22 C.C.No.13682/2016
returned for the reason "cheque irregularly drawn amount
in words and figures differs" vide memo dt.28.3.16 . The
cheques mentioned at Sl.No.21 and 29 when represented,
returned for the reason "Funds Insufficient", vide memo
dt.28.3.16. But, the complainant has issued the legal
notice in lumpsum dt.23.4.2016 itself. Despite the
cheques mentioned at sl.No.17, 21 and 29 returned for the
reason cheques irregularly drawn and the amount in words
and figures differs, the complainant has not attempted to
examine any bank official in this regard. The cheque
mentioned at Sl.No 17 though dishonored for the reason
cheque irregularly drawn and amount in words and
figures differs for the 1st time, but the complainant
represented the said cheque in the same condition. If at
all the accused had instructed the complainant to
represent the said cheque , the complainant would have
atleast asked the accused to issue another cheque in
replacement of the cheque mentioned at Sl.No.17 bearing
No.51665 dt.18.2.16 for an amount of Rs.7,913/- but,
absolutely no such attempt has been made by the
complainant and the cheque mentioned at Sl.No.17 is
represented as it is. When presented for the 2nd time it
again dishonored for the reason cheque irregularly drawn
23 C.C.No.13682/2016
amount in words and figures differs vide memo dt.28.3.16.
This aspect of the matter creates a doubt upon the very
case of the complainant that as per the instructions of
the accused person the complainant represented the
cheques.
23. On further meticulous perusal of all the cheques
on record, it is found that the year of the cheques in some
of the cheques have been corrected. But, absolutely the
bank authorities have not raised any objections to that
effect also. The complainant has absolutely neglected and
failed to examine any of the bank authorities in order to
substantiate his case. It appears that the cheques are
presented in bulk, and without verifying the dates, period
of limitation, the complainant has blindly filed the
complaint . Absolutely no explanation is forthcoming on
the part of the complainant in this regard. Therefore, the
court is of the opinion that the present complaint
pertaining to some of the cheques as mentioned supra is
not maintainable at all since it is filed beyond the period of
limitation. The ingredients as enumerated u/s.138
Negotiable Instrument Act, cannot be made applicable
and are not attracted. Hence, the complainant has
24 C.C.No.13682/2016
utterly failed to prove his case beyond reasonable doubt.
Further, the complainant has not produced any invoice
or bill pertaining to the alleged transaction entered into
between the complainant and the accused . As it is well
established principle of law that only when the
complainant proves the existence of the transaction
entered into between the complainant and the accused
person, then only he is entitled for the presumption as
enumerated u/s.139 of Negotiable Instrument Act . But ,
here in this case the complainant has utterly failed to
prove the same before the court. Absolutely, no explanation
is forthcoming on behalf of the complainant in this regard.
The complainant himself admits in his cross examination
that some of the corrections have been made in Ex.P.39 ,
the cheque pertaining to the date. There are difference in
the signature of the accused in Ex.P.39 and Ex.P.41 and
the signatures of the accused person differs in all the
cheques marked before this court. Having admitted this
aspect of the matter by PW 1, absolutely there is no any
explanation on the part of PW 1 in order to substantiate
the same. Therefore, the court is of the opinion that the
complainant has utterly failed to prove his case beyond
reasonable doubt and the accused should be made entitled
25 C.C.No.13682/2016
for the benefits of these doubts. Therefore, in view of the
reasons mentioned above, I answer point NO.1 in the
Negative.
24. Point No.2: In view of the reasons stated and
discussed above, the complainant has miserably failed to
prove the guilt of the accused person for the offence
punishable under Sec.138 Negotiable Instruments Act
Hence, I proceed to pass the following :
ORDER
Exercising the powers conferred upon this court u/s.255(1) Cr.P.C., the accused is hereby Acquitted of the offence punishable under Sec.138 Negotiable Instrument Act. The bail bond of the accused and that of the surety if any stand cancelled.
(Dictated to the Stenographer directly on the computer, typed by her , corrected and signed then pronounced by me in the open court on this the 21st day of May , 2018).
(SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.
26 C.C.No.13682/2016ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Mohammed Khaleelulla.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : cheque No.516630 Ex.P.2 : cheque return memo dt.28.3.16 Ex.P3 cheque No.516631 Ex.P4 : cheque return memo dt.28.3.16 Ex.P.5 : cheque No.516632 Ex.P.6 : cheque return memo dt.28.3.16 Ex.P7 cheque No.516633 Ex.P8 : cheque return memo dt.28.3.16 Ex.P.9 : cheque No.516634 Ex.P.10 : cheque return memo dt.28.3.16 Ex.P11 cheque No.516635 Ex.P11 : cheque return memo dt.28.3.16 Ex.P.13 : cheque No.516636 Ex.P.14 : cheque return memo dt.28.3.16 Ex.P15 cheque No.516637 Ex.P16 : cheque return memo dt.28.3.16 Ex.P.17 : cheque No.516638 Ex.P.18 : cheque return memo dt.28.3.16 Ex.P19 cheque No.516639 Ex.P20 : cheque return memo dt.28.3.16 Ex.P.21 : cheque No.516645 Ex.P.22 : cheque return memo dt.28.3.16 Ex.P23 cheque No.516646 Ex.P24 : cheque return memo dt.28.3.16 Ex.P.25 : cheque No.516647 Ex.P.26 : cheque return memo dt.28.3.16 Ex.P27 cheque NO.516648 Ex.P28 : cheque return memo dt.28.3.16 Ex.P.29 : cheque No.516663 Ex.P.30 : cheque return memo dt.28.3.16 Ex.P31 cheque No.516664 Ex.P32 : cheque return memo dt.28.3.16 Ex.P.33 : cheque No.516665 Ex.P.34 : cheque return memo dt.28.3.16 Ex.P35 cheque NO.516666 Ex.P36 : cheque return memo dt.28.3.16 Ex.P.37 : cheque No.516668 27 C.C.No.13682/2016 Ex.P.38 : cheque return memo dt.28.3.16 Ex.P39 cheque No.516669 Ex.P40 : cheque return memo dt.28.3.16 Ex.P.41 : cheque No.516670 Ex.P.42 : cheque return memo dt.28.3.16 Ex.P43 cheque No.516671 Ex.P44 : cheque return memo dt.28.3.16 Ex.P.45 : cheque No.616672 Ex.P.46 : cheque return memo dt.28.3.16 Ex.P47 cheque No.516673 Ex.P48 : cheque return memo dt.28.3.16 Ex.P.49 : cheque No.516674 Ex.P.50 : cheque return memo dt.28.3.16 Ex.P51 cheque No.516675 Ex.P52 : cheque return memo dt.28.3.16 Ex.P.53 : cheque NO.516679 Ex.P.54 : cheque return memo dt.28.3.16 Ex.P55 cheque No.516680 Ex.P56 : cheque return memo dt.28.3.16 Ex.P.57 : cheque No.516681 Ex.P.58 : cheque return memo dt.28.3.16 Ex.P59 cheque No.516682 Ex.P60 : cheque return memo dt.28.3.16 Ex.P.61 : cheque NO.516685 Ex.P.62 : cheque return memo dt.28.3.16 Ex.P63 cheque NO.516686 Ex.P64 : cheque return memo dt.28.3.16 Ex.P.65 : cheque No.516687 Ex.P.66 : cheque return memo dt.28.3.16 Ex.P67 cheque No.148575 Ex.P68 : cheque return memo dt.28.3.16 Ex.P.69 : cheque No.148576 Ex.P.70 : cheque return memo dt.28.3.16 Ex.P71 cheque NO.148577 Ex.P72 : cheque return memo dt.28.3.16 Ex.P.73 : cheque No.148578 Ex.P.74 : cheque return memo dt.28.3.16 Ex.P75 cheque No.516688 Ex.P76 : cheque return memo dt.28.3.16 Ex.P.77 : Legal notice dt.23.4.16. Ex.P.77(a) (d) : Postal receipts Ex.P.77(e) (f) : Postal acknowledgement Ex.P.77(g) : Postal cover.28 C.C.No.13682/2016
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:- -
DW1 : Nagaraj.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED
-Nil-
( SHIRIN JAVEED ANSARI ) XXV A.C.M.M.,BANGALORE.
29 C.C.No.13682/201621.5.2018 For judgment:
ORDER (Judgment pronounced in open court vide separate sheets) Exercising the powers conferred upon this court u/s.255(1) Cr.P.C., the accused is hereby Acquitted of the offence punishable under Sec.138 Negotiable Instrument Act. The bail bond of the accused and that of the surety if any stand cancelled.
XXV A.C.M.M., BANGALORE.30 C.C.No.13682/2016