Bangalore District Court
The Complainant Presented For Said ... vs Himself Examined As Dw1 And Got Marked ... on 1 October, 2015
IN THE COURT OF THE XLII ADDL.CHIEF METROPOLITON MAGISTRATE,
NRUPATHUNGA ROAD, BANGALURU CITY
Dated this the 1st day of October 2015
PRESENT: Annugouda. V. Patil., B.Com, LLB (Spl)
XLII A.C.M.M.,
A.C.M.M.,
Bangaluru City.
JUDGMENT U/S 355 OF Cr.P.C.
1. Sl.No. of the case : C.C.No.6812/2014
2. The date of commence of Evidence: 18.03.2015
3. The date of Institution : 16.03.2013
4. Name of the Complainant : Vikram Hospital (Bangalore) Private
Limited, No.71/1, Millers Road
Bangalore-560 052
Represented by its Authorized Signatory
Mr. Vasanth Kumar. P.
5. Name of the Accused : Sri. G. Muniyappa
Major
S/o Sri. Munigurappa
Bileshival (Gam) Bidaralli (Hobli)
Doddagubbi Post
Bangalore North Taluk.
Also at:-
at:-
Mr. G. Muniyappa
Ex: BSNL Employee
C/o. Sri. Krishnappa & Smt. Lalithamma
Vinayaka Nagar, 5th Cross
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C C No.6812/2014
Hosakote Town-562 114.
6. The offence complained
of or proved : U/s.138 of N.I. Act
7. Plea of the accused on
his examination : Pleaded not guilty
8. Final Order : Accused is not found guilty
9. Date of such order : 01.10.2015.
JUDGMENT
1. This case has been registered against the accused on the basis of the complaint filed by the complainant u/s 200 of Cr.P.C for the offence punishable u/s 138 r/w 142 of N.I. Act .
2. The brief facts of the complainant's case is that :
The complainant is a multi-speciality Hospital/medical care provider and is incorporated as a Private limited Company under the Companies Act 1956. The accused was admitted as in-patient in semi-private ward in complainant hospital from 25.09.2012 to 22.10.2012 and obtained medical treatment for his ailments. The medical treatment charges during the said period amounted to Rs.3,90,539.40 rounded off to Rs.3,90,539/-. To that effect bill was issued to the accused. The accused has accepted the same and has made part payment of Rs.2,05,000/-. Towards the balance amount of Rs.1,85,539/- rounded off to Rs.1,85,540/-, he requested for month's time to arrange for the payment and also provided written request in this regard to the complainant. The request of the accused considered by the complainant with sympathy and accepted the assurance of the accused and agreed to provide a month's time to make payment. 3
C C No.6812/2014 Pursuant thereto accused had issued two post dated cheques bearing No.816854 and 816855 for Rs.92,769/- and Rs.92,771/- respectively, both dated:
22.11.2012 drawn on Andhra Bank, 91, Cooke Town Branch, Bangalore to the complainant. The complainant presented for said cheques for collection through his banker namely the United Bank of India, Kempegowda Road, Bangalore. To the utter shock and dismay of the complainant both the cheques were dishonoured and returned to the complainant with a shara "Insufficient Funds".
To that effect, the complainant received his banker memo dated: 17.01.2013. Thereafter the complainant got issued legal notice on 31.01.2013 calling upon the accused to pay the amount covered in the both cheques through RPAD to his both addresses. Though, the accused is residing at the said addresses has evaded to receive notice sent by the accused to his Hoskote Address and same has been returned on 11.02.2013 with postal endorsement/shara "Not Claimed/Return to Sender". The accused has evaded to receive notice sent by RPAD to his Bangalore Address. According to the complainant, the accused has committed an offence punishable under section 138 of Negotiable Instruments Act. Accordingly, the complainant has filed the complaint on 16.03.2013.
3. In pursuance of the summons, the accused has appeared through Counsel and got enlarged on bail by executing necessary documents. The copy of the complaint was furnished to the accused, as required under law. As there is sufficient material, plea was recorded against the accused on 03.03.2015 and explained to the accused in her vernacular, for which the accused pleaded not guilty and claims to be tried.
4. In order to prove the case, the complainant has examined as PW1 and got 4 C C No.6812/2014 marked Ex.P1 to 13 and closed the side. Then the statement u/s 313 Cr.P.C. came to be recorded on 30.07.2015, wherein the incriminating evidence appearing against the accused was read over the explained to the accused. The accused himself examined as DW1 and got marked Ex.D1 and 2.
5. Heard the arguments and perused the records.
6. On the basis of the above facts, the following points arise for my consideration:
1) Whether the complainant proves that the accused towards discharge of legally recoverable debt issued cheque No. 816854 and 816855 both dated 22.11.2012 for Rs.92,769/- and Rs.92,771/- respectively drawn on Andhara Bank, 91 Cooke town Branch, Bangalore in favour of complainant, on presentation for encashment it was returned as "Insufficient Funds" and in spite of receipt of legal notice, the accused failed to pay the cheque amount within the statutory period and thereby accused has committed an offence punishable u/s 138 of N.I.Act?
2) What Order?
7. My findings on the above points are as under :
Point No.1 : In the Negative.
Point No.2 : As per final order, for the following REASONS
8. Point No.1:-
No.1 In order to prove the case, the complainant filed affidavit of Vasanth Kumar.P by way of examination-in-chief and has reiterated the complaint allegations on oath. He also got marked documents Ex.P1 to 13. Ex.P1 and Ex.P2 are the cheques, Ex.P1(a) and Ex.P2(a) are the signatures of accused, Ex.P3 and Ex.P4 are the bank memo's, Ex.P5 is the office copy of legal notice, Ex.P5(a) and 5 C C No.6812/2014 Ex.P5(b) are the postal receipts, Ex.P6 and Ex.P7 are the returned postal covers, Ex.P6(a) and Ex.P7(a) are the copy of notice available in the postal covers, Ex.P8 and 9 are the letters said to have written by the accused to the complainant, Ex.P8(a) and Ex.P9(a) are the Signatures of accused, Ex.P10 is the extract of resolution copy, Ex.P11 is the letter of authorization, Ex.P12 is the office copy of the hospital bill and Ex.P13 is the complaint. In the cross-examination the accused has put defence that, at the time of taking a treatment in the complainant hospital the complainant obtained signature on two blank papers and also collected two blank signed cheques. The complainant has not taken signature of the accused on discharge summary and bill. The complainant failed to discharge the accused even after his request and continue the accused as in-patient only to increase bill. Accused is not due to pay any amount as claimed by the complainant.
9. To substantiate the contention taken by the accused during course of PW1 the accused himself has examined as DW1 and has deposed that, at the time of admitting complainant got deposited an amount of Rs.25,000/- as advance, but has not passed any receipt. At that time the complainant also collected two blank signed cheques and obtained signature on two blank papers and subsequently got created Ex.P1, 2, 8 and 9. Except signature other writing is not his hand writing. The address shown in Ex.P13 is not his address. The complainant has not sent any legal notice to the accused before filing the complaint. He has not received Ex.P5/legal notice. To show his residential address accused has produced the Election Identity Card issued by the Election Commission and Ration Card at Ex.D1 and 2.
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C C No.6812/2014
10. This is all the oral and documentary evidence placed on record by the complainant and accused in support of their respective contentions.
11. The Learned counsel for the complainant argued that the accused has not disputed the treatment taken in the complainant hospital, the cheques in question belongs to his account and his signature on it. The accused was the BSNL employee requested the complainant to grant time for payment of entire bill. Taken into consideration the accused was a BSNL employee and written request of the accused complainant agreed to grant some time for payment of entire bill. At the time of discharge accused issued two cheques for payment of the balance amount in favour of the complainant hospital. On presentation of the said cheques were dishonoured. Thereafter the complainant got issued legal notice to the address given by the accused while admitting in the hospital. The accused intentionally avoided the legal notice. Sending legal notice to correct address is due to compliance of the Negotiable Instruments Act. Even thereafter the accused failed to pay the cheques amount. The accused has not at all taken any legal action against the complainant for the alleged misutilisation by the complainant. Ingredients of section 138 and 142 are duly complied with. Hence, prayed to convict the accused as provided under law. In support of his contention placed reliance following citations:
1. 1999 AIR SCW 3809 (SC) K.Bhaskaran V/s Shankaran Vaidhyan Balan
2. AIR 2007(DOC) 119 (AP) M/s CC Enterprise, Hyderabad V/s State of A.P & Anr
12. The learned Counsel for accused filed written argument stating that, first of all the complainant has not properly treated the accused and just to increase the bill un-necessarily he was kept in semi ward. Even after request of the accused 7 C C No.6812/2014 he was not discharged from hospital. Even no proper treatment was provided by the complainant to the accused during the time of treatement. The complainant has not at all issued any bill to the accused till today. While admitting the accused the complainant has collected two blank cheques and obtained signature on two blank white papers. Subsequently by misusing the two blank cheques filled and two blank paper on which the signature of accused was obtained filed this false complaint. No legal notice is the served on the accused. The mandatory requirements section 138 is not complied with. Hence, he prayed to acquit the accused by dismissing the complaint. In support of his contention placed reliance on citation reported in AIR 2011 (NOC) 271 (MAD) (K.Rajamanickam V/s P.Arumugam)
13. I have gone through the citations relied on by the learned counsels for both side and kept in mind the ratio laid down in the said citations while appreciating the evidence on record and coming to the final conclusion.
14. In the light of the arguments the question before the Court is whether the complainant proved that the accused issued Ex.P1 and 2/cheques towards the repayment of the legally enforceable debt. If the answer is in affirmative then the question arises for consideration whether accused rebut the presumption? If the answer is in negative or accused successfully able to rebut the presumption then he is entitle for acquittal. If the accused fails to establish the presumption, he shall have to be convicted. To ascertain the same the oral & documentary evidence placed on record by the parties to the present case has to be taken into consideration.
15. In the instant case the accused has not disputed the Ex.P1 and 2/cheques 8 C C No.6812/2014 belong to his account and his signature on said cheques. In view of the ratio laid down by the Hon'ble Apex Court of India in the catena of decisions the complainant discharged his initial burden. By virtue of Section 118 & 139 of the N.I Act and in view of the ratio laid down by Hon'ble Apex Court in above citations the presumption is in favour of the holder of the cheque i.e., complainant. Now the burden is lies on the accused to lead rebuttal evidence to disprove the fact that he has not issued Ex.P1 and 2/cheques to the complainant for discharge of debt or liability.
16. Now whether the said presumption is rebutted by the accused is to be seen. To substantiate his contention accused examined himself as DW1 and admitted about the taking treatment in the complainant Hospital. However he has taken the contention that the complainant has not properly treated the accused and just to increase the bill un-necessarily he was kept in semi ward, even no proper treatment was provided by the complainant to the accused during the time of inpatient, no bill issued to the accused till today. According to the accused complainant has collected two blank cheques and obtained signature on two blank white papers while he was admitting the accused and said blank cheques filled and two blank papers misused by the complainant and filed this false complaint. No legal notice is the served on the accused.
17. It is worth to note that the stand taken by the accused is not supported by any acceptable evidence. Except the interested oral testimony of accused nothing has been produced on record. If really complainant collected blank cheques and signature on blank papers as stated by the accused obviously nothing has been prevented the accused to initiate the action against the complainant for taking 9 C C No.6812/2014 blank cheques and signature on blank papers. That apart evidence on record discloses that accused has not taken any legal action against the complainant for the alleged misutilization of cheques and blank papers. If really complainant misused the blank cheques and blank papers as stated by the accused as a prudent man accused could have initiated the legal action against the complainant for for the alleged misutilization of cheques and blank papers.
18. At the same time it is material to note that if really the cheques were not given to complainant, in that case as a prudent man accused should have intimated his banker to withhold the payment of the alleged cheques in case of presentation for encashment. In other words if really the accused had not given the cheques in question to the complainant, as a prudent man the accused has expected to intimate his banker to stop payment of said cheques in case of presentation for encashment. The evidence on record discloses that accused has not intimated his banker for stop payment of cheques. This conduct shows the falsity of the case of the accused. Non initiation of legal action against the complainant for the alleged misutilization of cheques and non intimating to his banker for stop payment of cheques are the strongest circumstances to draw adverse inference against the accused.
19. In this case accused seriously disputed the service of notice as required u/s 138(b) of N I Act. In view of the arguments advanced by the leaned counsel for the complainant, it is necessary to clarify that issuance of notice is different than the service of notice. From the material placed on record by the complainant, it can be said that the complainant got issued the notice to the address shown in the Ex.P5/notice. But, mere issuance of notice is not sufficient to presume the 10 C C No.6812/2014 service of notice. As per Sec.138 of N.I. Act, the complainant supposes to issue the notice calling the accused to pay the cheque amount within 15 days from the date of service of notice. In Sec.138(c) the word used is 'service of notice' and not 'giving of notice'. Therefore, as per Sec.138(c) of N.I. Act, the accused has got 15 days time to repay the amount mentioned in the cheque to the complainant, only failure to pay on the part of the accused after receipt of notice, the cause of action arise to the complainant to file the complaint. It is one of the mandatory requirements that there must be averment of the service of the notice in the complaint. Interestingly, in the present case, the complainant has not averred in the complaint about service of notice. No averment the date on which the notice has been served on the accused. In the absence of such particulars, the complaint itself is not maintainable. This view of mine is based on the decision reported in Acq D.C.C. 693 (SC) (Shakti Travel & Trours Vs. State of Bihar & another).
20. At the outset, it is necessary to note that there is no pleading about service of notice as required u/s 138 of the N.I. Act. It is the contention of the complainant that the accused intentionally evaded the service of notice. The postal cover produced at Ex.P6 the postman endorsed to the effect that "No such person in this address". It means the accused is not resident of the address shown on Ex.P6/postal cover. Complainant has not disputed the said endorsement. Unless and until the said postal endorsement proved as false it has to be accepted as true. Hence, it could be said that the complainant send the notice shown in Ex.P6 is not sufficient to comply the provisions of section 138(b) of N I Act.
21. Now the question is whether legal notice/Ex.P5 send to the accused to 11 C C No.6812/2014 Hoskote Address as per Ex.P.7 is sufficient to comply the relevant provisions of N I Act. To resolve the dispute, it is necessary to see the material placed on record by the complainant and the accused in that regard. Ex.P7/postal cover is concerned it discloses that the address of the accused is mentioned as "Vnayaka Nagar, 5th cross, Hoskote Town". According to the accused, he is not resident of the said address. In support of his contention and disprove the contention of the complainant that he is not resident of the address shown on Ex.P7 has produced two documents at Ex.D.1 and 2. Ex.D.1 is the ID card appears to have issued on 29.03.2014 and Ex.D2 is the Ration Card appears to have taken in the month of January 2014. In both the documents the address of the accused is not shown as "Vnayaka Nagar, 5th cross, Hoskote Town". It is worth to note that the complainant has not at all disputed the address of the accused mentioned on Ex.D1 and Ex.D2. On appreciation of Ex.D1 and 2, it could be said in 2013 January the accused is resident of the address shown in Ex.D1 and 2 and not the address shown an Ex.P.7. The Ex.P5/legal notice is issued by the complainant on 31.01.2013. As noted supra complainant got issued legal notice to the accused showing the address as Vinayaka Nagar, Hoskote Town. Absolutely, no iota of evidence placed on record by the complainant to show that the accused is a resident of the address shown on the postal cover at Ex.P7. Ex.D1 and 2 are sufficient to hold that the accused is not resident of the address shown on Ex.P7/postal cover. At this juncture it is necessary to observe that though the complainant claimed that the accused has furnished his Hoskote address while he was admitting in the complainant hospital. But said document has not produced by the complainant. If really the accused furnished the said address while he was admitting the hospital, nothing was prevented the complainant to produce the 12 C C No.6812/2014 same in this case. No efforts have been made by the complainant in that regard. In the light of Ex.D1 and 2 in the considered opinion of this court the complainant miserably fails to prove the issuance of legal notice as required under section 138 of N I Act.
23. This Court is also aware of the law laid down by the larger bench of Hon'ble Apex Court of India to the effect that legal notice sent to the correct address of the accused is sufficient to comply the requirement of section 138(b) of N I Act. The complainant placed reliance on two citations. I respectfully agree with the ratio laid down in the said citations. The first citation the Hon'ble Apex Court of India it has held that if the notice sent by the post returned by accused as unclaimed period of 15 days commences from such date and notice is presumed to have been served. The presumption is to be drawn in case of failure of accused to rebut the presumption. No doubt in the instant case Ex.P7/postal cover reveals that it was returned as unclaimed but the accused placed rebuttal evidence to disprove the endorsement of postal authority on Ex.P7/postal cover at Ex.D1 and
2. On facts and in view of rebuttal evidence placed on record by accused at Ex.D1 and 2 the principle laid down in citations relied on by the complainant is not at all applicable. Considering the complainant allegations, entire oral evidence coupled with documentary evidence, in the considered opinion of this court, the complainant has miserably failed to place the material to show that the notice/ Ex.P5 served on the accused as required under law.
24. As pointed out, a reading proviso (c) of Sec.138 is manifestly clear that the criminal liability can be fastened on the accused person only if he has not complied with in paying the amount within 15 days from the date of receipt of the 13 C C No.6812/2014 notice. Otherwise such criminal liability cannot be put on his shoulders. Therefore, the main cause of action in putting the wheel of criminal prosecution in motion arises only from the date of receipt of the notice by the drawer or from the date of his knowledge of the notice or from the date of his refusal to receive the notice. In the instant case, the material placed on record, by the complainant is insufficient to establish the cause of action arise for filing the complaint. The citations relied on by the learned counsel for the accused are aptly applicable to the facts of the case. Hence, in the considered opinion of this court, unless and until a notice in writing is received by the accused/drawer of such cheque, the offence would not constitute. On appreciation of the oral and documentary evidence, the complainant has miserably failed to establish that the notice/Ex.P5 served on the accused. Therefore, I do not find any substance in the arguments advanced by the learned counsel for the complainant. Hence, it cannot be accepted. The complainant has failed to prove the mandatory requirement of Sec.138 of N.I. Act. Though complainant proves that accused towards discharge of legally recoverable debt issued cheques No. 816854 and 816855 both dated 22.11.2012 for Rs.92,769/- and Rs.92,771/- respectively drawn on Andhara Bank, 91 Cooke town Branch, Bangalore in favour of complainant, on presentation for encashment it was returned as "Insufficient Funds", but fails to prove the service of notice on the accused as required under section 138(b) of N I Act. It is needless to say that the complaint filed by the complainant fails technically for non-compliance of mandatory requirement of Sec.138 of N.I. Act. Accordingly, I answer the above point No.1 in the negative.
25. No.2 In view of my finding on point No.1, I proceed to pass the Point No.2:-
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C C No.6812/2014 following:
ORDER Acting u/s 255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable u/s 138 of N.I. Act.
The bail bond and surety bond executed by the accused and surety respectively shall stand cancelled. (Dictated to Stenographer, transcribed and computerized by her, taken print out corrected, signed by me and then pronounced in the open court this the 1st day of October 2015) (A.V.Patil) XLII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE Witnesses examined for the Complainant :
PW1 : Vasanth Kumar .P
Witnesses examined
examined for the accused:
DW1 : Muniyappa
Documents exhibited by the Complainant:
Ex.P1 & Ex.P2 : Two Cheques
Ex.P1(a) & Ex.P2(a) : Signatures of accused
Ex.P3 & Ex.P4 : Bank memo's
Ex.P5 : Office copy of legal notice
Ex.P5(a) & Ex.P5(b) : The postal receipts
Ex.P6 & Ex.P7 : Returned postal covers
Ex.P6(a)&Ex.P7(a) : Notice copy available in the postal covers
Ex.P8 & 9 : Letter written by the accused to the complainant
Ex.P8(a) & 9(a) : The signature of accused
Ex.P10 : Extract of minutes issues by our board of Directors
Ex.P11 : The letter of authorization
Ex.P12 : Copy of the hospital bill
Ex.P13 : Complaint
Documents exhibited by the Accused:-
Accused:
Ex.D1 : Election ID Card
Ex.D2 : Ration Card
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C C No.6812/2014
XLII Addl. Chief Metropolitan
Magistrate, Bengaluru.
16
C C No.6812/2014
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 N.I. Act. The bail bond and surety bond executed by the accused and surety respectively shall stand cancelled.
XLII A.C.C.M, Bangaluru.