Bangalore District Court
Narayana Swamy vs M/S. National Service Trust on 2 April, 2018
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 2nd day of April - 2018
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.20380/2010
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Narayana Swamy,
Aged about 49 years,
Proprietor of M/s. Professional
Software Consultant,
No.312/A, 1st Main, 40th Cross,
8th Block, Jayanagar,
Bengaluru-82.
Rep. by General Manager,
M.Seshagiri Rao,
S/o.M.Narayana Murthy,
Aged about 56 years,
And also General Power of
Attorney Holder.
(Rep. by Sri.B.S.Guruswamy,
Advocate)
V/S
Accused : 1. M/s. National Service Trust,
No.13, Outhouse, 3rd Main Road,
Vyalikaval, Bengaluru.
Rep. by its Chairman
A.V.Rajagopal Rao.
2. A.V.Rajagopal Rao,
S/o.Subbaiah.V.V,
Aged years,
Judgment 2 C.C.20380/2010
Chairman of
M/s. National Service Trust,
No.13, outhouse, 3rd Main Road,
Vyalikaval, Bengaluru.
(Rep.by Sri.C.M.Subramanya,
Advocate)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused Nos.1 and 2 are
Acquitted.
DATE OF ORDER : 02.04.2018.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant being a proprietor of M/s. Professional Software Consultants, through its General Manager presented the instant complaint on 03.12.2009 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act against the accused No.2 being the Chairman of accused No.1 Trust, for dishonour of cheque of Rs.11 lakhs.
2. The factual matrix of the complainant case is: Judgment 3 C.C.20380/2010
The complainant having the company in the name and style as Professional Software Consultants in the cause title address and carrying out the service of Data Process, Software Development, Training Work, Project Management and IT Related Services. The said company running successfully with good name since 20 years and it is a proprietorship concerned and one Sri.Narayana Swamy the original complainant has given authorization letter to the General Manager, who is presented the instant complaint and he has entire in-charge of the office administration of the complainant company. The authorization letter is produced in this case.
The complainant has further contended that, the accused No.2 after visiting the complainant's office, and after looking the complainant infrastructure and skill set, he posed himself to the complainant in the capacity of accused No.1 that, he is deputed to externally aided project of the NGO's Division by the Director General (EAP) Panchasheela Bhavan, National Services Trust, New Delhi and make the complainant to believe the offer regarding the central government project which is funded by the Central Government and World Bank. The copy of the said letter Judgment 4 C.C.20380/2010 dated:05.07.2007 deputing the accused No.2 also produced in this case.
The complainant has further contended that, the complainant submitted the profile to the accused and he has sent the said profile to Delhi office and confirmed that, the complainant's Nodal Agency for executing project and the complainant has to execute the project train, preparation of Training Manual, Funding advance for NGO's as per the guidelines of the accused.
The complainant has further contended that, the above said project will be executed through NGO's which was identified by the accused and the said accused has singed the contract with the complainant on 23.08.2007 for executing data collection of 500 samples ANC, TB and FSW, cases and said contract was for one year, where the said project for a period of 6 months. The said copy of the agreement was also furnished along with the complaint.
The complainant has further contended that, the accused after looking into the company development and sill, he has given in the project offer with the complainant company for the period of 15.09.2007 to June, 2008 for the budget of project of Rs.75 lakhs Judgment 5 C.C.20380/2010 and the accused requested the company to appoint Nodal Agency for implementing the H.M.Project under the terms and conditions of letter dated:09.01.2008.
The complainant has further contended that, the accused has sent the letter to the complainant bank addressing the Senior Branch Manager, Dena Bank, Jayanagar 5th Block, Bengaluru-41 and he stated in the letter that, to know whether the Dena Bank will make the payment through banking system to the project. The copy of the letter dated:10.01.2008 is also produced along with the complaint.
The complainant has further contended that, the accused has given letter to the complainant on 14.03.2008 mentioning the acknowledgment receipt of EMD amount of Rs.13 lakhs bearing FD No.1016749 registered at Dena Bank, Jayanagar on 14.03.2008 vide account No.93066011346. The copy of the State Co- coordinator, H.M. Project letter dated:14.03.2008 which was signed by the accused also enclosed with the FD receipt.
The complainant has further contended that, 15 NGO's was identified by the accused and complainant was released purchase Judgment 6 C.C.20380/2010 order by releasing the amount and further paid advance the advance money of Rs.70,000/- was released for each NGO and later Rs.15,000/- was released after submission of data and finally on 21.09.2008 for Rs.15,000/- and after accepting with the report totally the complainant has paid Rs.1,00,000/- to the NGO for completion assigned project.
The complainant has further contended that, to execute the said project work, the complainant has availed loan of Rs.27 lakhs from Dena Bank, out of that, Rs.3 lakhs FD was given as security. This was the first project of the accused succeeded with the complainant. The success intention behind the completion of the work by the accused is to create confidence with the complainant after completion of the accused wants to produce for the another 2nd project with the complainant company and also to continue the business in the same complainant company.
The complainant has further contended that, the accused has been entrusting the another 20 NGO's and for that agreement was signed with them for village development project and asked them to conduct a survey of three backward villages in their district and this project the accused have made payment through the complainant. Judgment 7 C.C.20380/2010 Some NGO's have submitted the report and as executed as per the accused instructions, later the accused told that the project is on hold and signed the agreement for birth and death data collection.
The complainant has further contended that, the accused have added another 25 NGO's name and contact number and address is attached. For this, complainant again availed the bank loan of new agreement signed with the accused on 16.10.2008 NGO's at this stage totally 58 NGO's are currently enrolled for executing the project loan of Rs.27 lakhs was availed during the December, 2008, the same was disbursed to the NGO's as advance amount and the copy of the newly agreement signed by the complainant and accused dated:16.10.2008 along with bank loan sanction was also furnished along with complaint.
The complainant has further contended that, the accused has told all the NGO's to pay Rs.1 lakh in cash as deposit amount to the accused for which the accused gives Rs.2,50,000/- for every quarter for five years, without brought into the notice of the complainant and the said amount was also paid by the NGO's to accused. That was shown that, the accused intention is cheating by misusing the complainant company name. With the bad intention of the accused Judgment 8 C.C.20380/2010 with resulted in creating bad name against the complainant company name in the minds of NGO's.
The complainant has further contended that, the accused after collecting the amount from all the NGO's by misusing the complainant company name and the accused try to escape from the issues by playing smart with the company and all NGO's without making any payment, at the time complainant company came to know that, the accused is putting a strong blame on the complainant in the NGO's repayment salary and immediately, the company made call to the accused and advised the said accused to make payment through the company to all NGO's.
The complainant has further alleged that, he advised the accused and the, he agreed to repay the said amount to the complainant for which, the accused has issued the cheque bearing No.934776, dated:25.08.2009 for a sum of Rs.11 lakhs in favour of the complainant account bearing No.093057011003 drawn on Canara Bank, Uttarahalli Branch, Bengaluru. The said cheque also being produced in the present case.
Judgment 9 C.C.20380/2010
The complainant has further contended that, due to the pressure from the bank for loan repayment for which the accused issued the cheque in the name of Dena Bank with the loan account number and accordingly, the complainant had presented the said cheque through his banker viz., Dena Bank, Jayanagar Branch, Bengaluru, then the same came to be dishonoured with an endorsement "Funds Insufficient" on 05.10.2009. Thereafter, the complainant got issued the legal notice to the accused on 15.10.2009 through his counsel by R.P.A.D and UCP. The legal notice sent through R.P.A.D was returned stating the accused "Absent, intimation delivered on 19.10.2009, and on the same day UCP was served on the accused. Inspite of receipt of the legal notice, the accused neither replied nor paid the amount covered under the cheque, thereby, the accused committed for the offence punishable under Section 138 of Negotiable Instruments Act. Hence, the present complaint.
3. On receipt of private complaint, the then presiding officer took the cognizance and registered as PCR and got recorded the sworn statement. After found the prima facie case against the accused, got registered criminal case in register No.III. Judgment 10 C.C.20380/2010
4. Earlier to the process, the accused not appeared and warrant was issued. Later, during the pendency of the case under the NBW the accused has not secured, but since the accused was in Judicial Custody in connection to other criminal case No.1563/2012, the body warrant was issued against the accused and secured before this court. Thereafter, the accused moved the bail application and got obtained the bail by furnishing the surety. The prosecution copies were furnished to the advocate for accused and thereafter, plea was recorded. Wherein the accused denied the very allegations made in the complaint and claimed to have defence.
5. In this case, the authorized person of the complainant company was choosen to examined as PW.1 and got marked documents at Exs.P1 to P15. The accused counsel cross-examined the PW.1 in detail.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same and the answer was given by them is recorded. In this case to prove the defence of the accused, the accused No.2 himself choosen to examined as DW.1 and no documents got marked, but by way of confrontation to the PW.1 one document got Judgment 11 C.C.20380/2010 marked at Ex.D1. The DW.1 was also subjected for cross- examination.
7. Heard the arguments from both side.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves that, he complied all the mandatory provisions to maintain the present case?
2) Whether the complainant proves beyond the reasonable doubt that, the amount covered under the cheque is legally enforceable debt payable to the complainant?
3) Whether the complainant proves the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act?
4) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : In the Negative Point No.4 : As per final order, for the following:Judgment 12 C.C.20380/2010
REASONS
10. POINT NOs.1 to 3: Since these three points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 is the authorized person/GPA holder of the complainant company, filed the affidavit by reiterating the complaint averments in toto. In support of his contention, he choosen to produce the documents at Exs.P1 to P15, which are:
a) Ex.P1 is the GPA executed by the complainant in favour of PW.1.
b) Ex.P2 is the authorization letter issued by the complainant company to the PW.1.
c) Ex.P3 is the cheque bearing No.934776 issued by the accused No.2 on behalf of the accused No.1 trust for sum of Rs.11 lakhs, dated:25.08.2009 in the name of Dena Bank with loan account No.093057011003.
d) Ex.P3(a) is the signature of accused No.2.
e) Ex.P4 is the Bank Memo dated:05.10.2009 stating funds insufficient.
f) Ex.P5 is the letter issued by the Dena Bank dated:14.08.2014 stating the loan account made mentioned in the cheque is pertaining to the complainant concerned.
g) Ex.P6 is the Legal Notice dated:14.10.2009 issued by the complainant to the accused No.2 under the capacity of accused No.1 trust.
h) Ex.P7 is the unclaimed R.P.A.D cover.Judgment 13 C.C.20380/2010
i) Ex.P8 is the true copy of agreement entered into between complainant and accused concerned dated:16.10.2008.
j) Ex.P9 is the Profile of Professional Software Consultants.
k) Exs.P10 and P11 are the voluntary statements given by the accused on 06.10.2009 before the Jayanagar Police Station in connection to Cr.No.486/2009.
l) Ex.P12 is the charge sheet filed against the accused for the offence punishable under Section 406 and 420 of IPC.
m) Ex.P13 is the FIR in Cr.No.486/2009.
n) Ex.P14 is the complaint given by the complainant before the Inspector of Police, against the accused, and
o) Ex.P15 is the UCP receipt.
The PW.1 was subjected to the cross-examination by the advocate for the accused.
11. Thereafter, incriminating evidence made against the accused read over and explained to the accused, he denied the same and contended having defence. Accordingly, the accused has examined as DW.1.
12. During the course of chief-examination of DW.1 recorded orally, he deposed that, he does not know the complainant, but he knew the M/s. Professional Software Consultants. When he was working in health department of AIDS Disease Division, he worked Judgment 14 C.C.20380/2010 as Deputy Director in the year 2007, and at that time K.S.Radhakriahna was the Senior Manager in M/s. Professional Software Consultants Company. At that time, for data entry, their department called the tender, wherein, the said Radhakrishna came to know. The DW.1 was the honorary president of the accused No.1 trust, and 15 other trustees are there. To run the Trust business one room was given by the M/s. Professional Software Consultants and he has no personal role in the accused No.1 concerned and whatever the decisions taken in the trust, all the trustees have took the decisions and once in 2 or 3 months used to call the meeting.
13. The DW.1 has contended that, the accused No.1 trust, used to attend the company project and he was the president and Dr.H.N.S. Rao, was the vice president and Pemmareddy was the secretary. The resolution passed in the meeting were signed by all the trustees including the DW.1. He specifically contended that, if, any agreement took place on behalf of the said trust, he used to sign the same. Since, 2008 to 2010 the accused No.1 trust was running the office on rent of Rs.5,000/-, the building belonged to the M/s. Judgment 15 C.C.20380/2010 Professional Software Consultants. The electrical and water bills were paid by the DW.1 on behalf of the accused No.1 trust.
14. The DW.1 also contended that, on behalf of the accused No.1, he not gave any work to the complainant concerned and he not affixed any signature to the any contract. In his absence, the accused No.1 trust has not assigned any contract to the complainant concern. For payment of rent, electricity and water bill, the bills were given to Sheshagiri, General Manager of M/s. Professional Software Consultants company. There was no business that took place in between PW.1 and the accused. The wife of PW.1 was also running the trust by name "Akash Trust", wherein, the PW.1, Radhakrishna, Kala.P.G and DW.1 were the trustees and it was doing business like the accused No.1 concerned.
15. The DW.1 also contended that, on behalf of the accused No.1 trust, in the year 2008-09 he used to affixed his signature to the cheque alone, thereafter, from 2009 onwards the secretary is to singed the cheques. In the year 2007, the accused No.1 not gave any work to the complainant concerned and in the year 2008-09 no business took place between the complainant concerned and the accused No.1.
Judgment 16 C.C.20380/2010
16. The DW.1 has contended that, in the year 2009, the complainant concern todo some project, on the guarantee of DW.1/accused No.2 got the loan from Dena Bank, at that time, he signed the bank letterhead. The complainant concern called the DW.1 for give training to the M/s. Professional Software Consultants and the complainant concerned after finishing the project, the complainant concerned not paid the loan to the bank. At that point of time, the DW.1 got transferred to Kolar Zilla Panchayath as Joint Director, the bank authority called him to pay the loan and he in turn intimated to the PW.1. In the year 2009, in respect of payment of water bill and electricity bill, the DW.1 gave two cheques to the complainant concerned M/s. Professional Software Consultants, but they have misused one cheque gave as such and the signature found in Ex.P3 is not of him and since 35 years he has been residing in the address of Vaiyalikaval, Bengaluru to that effect he produced the Ex.D1.
17. The DW.1 was also subjected for cross-examination in detail. During the course of cross-examination, he denied the suggestion made by complainant in the line of complaint averments. Judgment 17 C.C.20380/2010
18. On going through the rival contentions of the parties, the fact that, the complainant concern M/s. Professional Software Consultants is doing the data processing and other works as contended by it, in the complaint is not in dispute. The fact that, the accused No.2 earlier was the Deputy Director of Health Department working in its division in the year 2007 is not in dispute. The fact that, while he was working so participated in the establishment of trust in the name of accused No.1 and remained as the Honorary President is not in dispute. The fact that, the accused No.2 was entrusted to sign the agreement on behalf of accused No.1 is not in dispute. The fact that, the accused No.2 was subsequently transferred to the Kolar Zilla Panchayath is also not in dispute.
19. The fact that, the Ex.P3 cheque belongs to the accused No.1 and the signature found therein is of the accused No.2 is not in dispute. The fact that, though, he admitted the cheque and signature of him, he denied the contents and seal of the accused No.1 in the Ex.P3-cheque.
20. The fact that, the complainant has lodged the case against the accused, wherein, the Cr.No.486/2009 by registering FIR against the accused No.2 in Jaynagar Police Station is not in dispute. In Judgment 18 C.C.20380/2010 continuation of the said proceedings after completion of the investigation, the said police have submitted the charge sheet for the offence punishable under Section 406 and 420 of IPC against the accused, thereafter C.C.No.27068/2010 has registered and prosecuted against the accused No.2 is also not in dispute.
21. On going through the defence of the accused, they have contended that, the complainant has no locus standy to file the present case and is not aware of the transaction of the complainant company and no resolution is passed in favour of the PW.1, to prosecute the matter. Contrary, the complainant has taken the contention that, he has authorization of the original complainant by name C.Narayanaswamy, to that effect, he gave Ex.P2 authorization letter, apart from issued the GPA to prosecute the matter. The accused have contended that, the PW.1 has no personal knowledge, therefore, he is not a competent person to depose the transaction of the complainant company with the accused.
22. On meticulous reading of the legal notice, complaint coupled with Exs.P1 and P2, it discloses that, the PW.1 is the General Manager of the complainant company and he authorized to do the business of the complainant company and also permitted to Judgment 19 C.C.20380/2010 prosecute the matter. Therefore, in a proprietorship concern, like complainant concern, the accused cannot expect more documents, but it is him to take cautions before entered into any alleged transaction with the complainant. Now, it is not a stage to dispute the competency of the PW.1.
23. Accused also contended that, the complainant abruptly mentioned the accused No.2 is Chairman of the accused No.1 Trust, other trustees are not arrayed as parties to the present case. Therefore, case is not maintainable. It is relevant to focus on the evidence of DW.1. In the course of chief-examination of DW.1, he has deposed that:
"¸ÀPÁðj ¥ÁæeÉPïÖUÀ¼À£ÀÄß £ÁåµÀ£À¯ï ¸À«ð¸ï læ¸ïÖ ªÀiÁrPÉÆqÀÄwÛvÀÄÛ. £ÁåµÀ£À¯ï ¸À«ð¸ï læ¸ïÖ£À CzÀsåPÀë £Á£Éà DVzÉÝ. G¥ÁzÀsåPÀë£ÁV qÁ. ºÉZï.J£ï.J¸ï. gÁªï ªÀÄvÀÄÛ PÁAiÀÄðzÀ²ðAiÀiÁV ¥ÉªÀÄägÉrØ EzÀÝgÀÄ. læ¸ïÖ ¸À¨sÉAiÀÄ°è AiÀiÁªÀÅzÁzÀgÀÆ oÀgÁªÀÅUÀ¼À£ÀÄß ¥Á¸ï ªÀiÁrzÀgÉ CzÀPÉÌ £Á£ÀÄ ªÀÄvÀÄÛ ¸À¨sÉAiÀÄ°è ºÁdjzÀÝ J®è ¸ÀzÀ¸ÀågÀÄ ¸À» ºÁPÀÄwÛzÉݪÀÅ. læ¸ïÖ ªÀw¬ÄAzÀ AiÀiÁªÀÅzÁzÀgÀÆ CVæªÉÄAmï DVzÀÝgÉ, CVæªÉÄAmïUÉ £Á£ÉƧâ£Éà ¸À» ªÀiÁqÀÄwÛzÉÝ."Judgment 20 C.C.20380/2010
24. The above evidence of DW.1, it made clear that, through the accused No.1 trust, the company project has been doing and the accused No.2 was the Chairman of the said trust. He also deposed that, the said trust has vice president, secretary and all the trustees used to sign the resolution, but he only authorized to sign the agreement entered on behalf of accused No.1 trust. From which, it made clear that, the accused No.2 is the chairman and he empower to entered into agreement on behalf of accused No.1 trust is not in dispute. Apart from that, the DW.1 deposed that:
"£ÁåµÀ£À¯ï ¸À«ðøÀ¸ï læ¸ïÖ ªÀw¬ÄAzÀ 2008-09£Éà ¸Á°£À°è ZÉQÌUÉ £Á£ÉƧâ£Éà ¸À» ºÁPÀÄwÛzÉÝ. 2009gÀ £ÀAvÀgÀ PÁAiÀÄðzÀ²ðAiÀĪÀgÀÄ ¸À» ºÁPÀÄwÛzÀÝgÀÄ."
25. From the said testimony of the DW.1, it also made clear that, during the tenure of 2008-09 on behalf of the accused No.1 trust, he alone choosen to sign as chairman is not in dispute. Therefore, the complainant cannot say that, the other persons are necessary parties to the present proceedings as they empower entered into agreement and signed the cheque or date of alleged issuance of cheque. Therefore, the non-inclusion of other members not required to the parties to the present complaint.
Judgment 21 C.C.20380/2010
26. Apart from the above, the accused has denied the very entered into the agreement earlier dated:23.08.2007 and it was successfully concluded by the complainant. The accused has denied the very transaction put forth by the complainant. But, the complainant through out the case has contended that, earlier contract entered into between accused No.1 and complainant was successfully completed and no due is pending in respect of the said transaction. The complainant though contended as such, in view of the accused has strongly harping on the very conclusion of transaction contract dated:23.08.2007, not choosen to produce any documents.
27. Apart from that, the complainant has put forth the present case with the certain set up facts stating that, in pursuance of the subsequent agreement entered into between the complainant and accused dated:16.10.2008, the accused has misused the name and fame of the complainant concerned and collected the money from the NGO's of Rs.1 lakh each and as per the terms of the said agreement produced at Ex.P8, for the payment of the said completion of the work, the accused got issued the cheque at Ex.P3 in favour of the complainant.
Judgment 22 C.C.20380/2010
28. No doubt, the complainant choosen to produce the agreement at Ex.P8 dated:16.10.2008. The said agreement having so many terms and conditions. In order to show that, the complainant have attended the project assigned under the said agreement, the complainant is expected to produce the necessary documents. Since, the complainant has contended that, the cheque amount is payable to the complainant for attending the project work in pursuance of Ex.P8. It is pertinent to note that, the accused has specifically denied the said agreement at Ex.P8. Therefore, it is the complainant has to demonstrate, what extent of work he did in pursuance of Ex.P8, and what was the expenses born by the complainant with particulars have to be produced. Since he solely relied upon the Ex.P8 and attended the work in pursuance of Ex.P8, therefore, the accused No.2 on behalf of accused No.1 for the payment of due for attending the project got issued the Ex.P3 cheque. In view of denial made by the accused, to show that, in terms of the agreement at Ex.P8, the complainant has attended the work or did the project to what an extent and as per the said agreement, how much work the complainant has performed and what was the bill to the already attended work payable by the accused has to be demonstrated by producing necessary documents. Judgment 23 C.C.20380/2010 In that regard, it is just and proper to appreciate the evidence of PW.1. During the course of cross-examination of PW.1, he admitted that, in the year 2007 there was no transaction held between the complainant company and accused No.1 trust, but he deposed the agreement was entered into between them in the year 2008. Therefore, the further questions and explanation given by the PW.1 at the time of cross-examination is re-produced for better understanding the dispute. The PW.1 during the course of cross- examination has deposed as follows:
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29. The accused came up with specific defence that, on what purpose the accused has to pay the amount of Rs.11 lakhs covered under the cheque, to the same, the PW.1 has deposed that, for the project of Birth and Death as well as Marriage, the accused has to pay the money and to that effect the agreement at Ex.P8 was entered into. The PW.1 also deposes that, the accused No.1 trust gave the said project to the complainant company, he not secured any documents and to attending the said project, how much expenses will be caused, to that effect no bill or invoice or estimate or work order was submitted. Even, the PW.1 has admitted that, Judgment 26 C.C.20380/2010 the accused has not submitted any work order to attending the said project. Then, how the PW.1 contending that, he attended the work as per the Ex.P8 and either completed or partly completed is not explained. Apart from that, the PW.1 has admitted that, office of the trust of accused No.1 was situated in the premises of the complainant and the accused by way of suggestion also clearly admitted that, the Ex.P8 contract was entered into between the complainant and accused No.1 and 2. Except the said agreement, no other agreement was entered into as admitted by the PW.1. The PW.1 also specifically admitted that, the said Ex.P8 agreement was entered into between accused No.1 and Radhakrishna. The PW.1 contended that, the said Radhakrishna is none other than his worker. But, the said Radhakrishna is not made as a party to the present case or the PW.1 is not a signatory to the said agreement. The PW.1 further deposed that, there was no mentioning of payment of advance money in the Ex.P8, but the said document does not discloses the payment of advance money except other terms and conditions to fulfill the project. The PW.1 also admitted that, the project covered under the Ex.P8 was finished by the complainant concern within one year, but the accused has been postponing the payment of advance money for one or other reasons. Judgment 27 C.C.20380/2010 The PW.1 specifically deposed that, to show that, the project as per Ex.P8 attended by the complainant, he has documents and not produced before this court. But, contended that, the project was completed. He not specified, when he completed, if so, why the complainant has not choosen to produce any documents despite, the accused has harping on very claim of the complainant is not explained.
30. From the above testimony of PW.1, it is also clear that, as per the terms and conditions, the project has to be concluded between December, 2008 till December, 2009, and also further deposed that, he did the said project, but the accused have not given support to the said project and since the accused has not paid the money, the project was not continued. From the said admission of the PW.1, it made clear that, the project was not concluded. Though, the PW.1 has contended that, to show that, the project attended, he handed over the documents to the accused at the place he insisted, but he cannot remember, where he handed over. The PW.1 also admitted that, to show that, the said project handed over to the accused, the complainant has not taken any acknowledgment. Judgment 28 C.C.20380/2010
31. On going through the testimony of PW.1 above, it is made clear that, if the complainant has attended the work project as per Ex.P8 definitely, it is him to produce necessary documents to show that, he attended the same in terms of agreement. Being the said document is placed before this court definitely, it indicates, the complainant has spent his precious time, money and energy to attend the project, therefore, whatever the money the complainant spent is liable to be recovered. Though, in this case, the accused harping on the claim of the complainant from beginning, not choosen to produce the same. There is no materials is on record, except Ex.P8, it is none other than the initial agreement, to show that, the same has been to be into force and both the parties acted upon the same, terms and conditions, the complainant has not produced any document. Since, the accused has denied that, no such agreement was entered into and no work project attended by the complainant, has proof the said document are required to produce, but not produced before this court is a hindrance to the case of the complainant.
32. Apart from that, during the course of cross-examination of PW.1, the PW.1 has deposed that:
Judgment 29 C.C.20380/2010
"£ÀªÀÄä PÀA¥À¤AiÀÄ ªÀåªÀºÁgÀªÀ£ÀÄß dAiÀÄ£ÀUÀgÀzÀ zÉ£Á ¨ÁåAPï, 5£Éà ¨ÁèPï ±ÁSÉAiÀÄ°è ªÀiÁqÀÄvÉÛãÉ. £ÀªÀÄä PÀA¥À¤AiÀÄ£ÀÄß £ÀqɸÀ®Ä ¨ÁåAQ¤AzÀ ¸Á® ¥ÀqÉ¢gÀÄvÉÛãÉAzÀgÉ ¸Àj. ¸ÁQë ªÀÄÄAzÀĪÀjzÀÄ, F ¥ÁæeÉPïÖUÁV ¸Á® ¥ÀqÉ¢zÉÝ JAzÀÄ £ÀÄr¢gÀÄvÁÛgÉ. ¨ÁåAPï ¸Á®zÀ UÁågÉAnUÁV £Á£ÀÄ DgÉÆæAiÀÄ£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV UÁågÉAlgï JAzÀÄ ¸À» ªÀiÁr¹gÀÄvÉÛãÉAzÀÄ ¸ÀÆa¹zÀgÉ ¸ÁQë EzÀÄ ¸ÀPÁðj ¥ÁæeÉPïÖ DVzÀÝjAzÀ ¸ÀzÀj ¥ÁæeÉPïÖUÉ ¸ÀA§A¢üzÀAvÉ ¸ÀPÁðj C¢üPÁjAiÀÄ ¸À» ¨ÉÃPÉAzÀÄ PÉýzÀÝjAzÀ ¸À» ªÀiÁr¹gÀÄvÉÛãÉAzÀÄ £ÀÄr¢gÀÄvÁÛgÉ."
33. From the above testimony of PW.1, he admitted that, the business of the complainant concerned was in Dena Bank, and he obtained loan from the said bank. It was a specific suggestion made to the PW.1, for the payment of bank loan guarantee, the signature of the accused No.2 was taken as a guarantor. The said fact not denied by the complainant, but contented that, since it is the government project, the government official signature was required, as such the signature of the accused No.2 was taken. The PW.1 not denied that, the signature of the accused No.2 was taken as a guarantor to the loan. No doubt, the bank name and account number displayed in the cheque is successfully belongs to the complainant company. From which, it is also clear that, the Judgment 30 C.C.20380/2010 accused No.2 seems to be the guarantor for the loan of the complainant. When, he is guarantor to the loan definitely, the amount payable by the accused as per Ex.P3 in view of his tenure, the complainant has to produce the necessary material documents to attend the work as per Ex.P8. Since, the said loan obtained by the complainant under the guarantee of accused No.2 definitely, in the event of not paid the said loan, the accused No.2 being a guarantor also liable for recovery. Therefore, the burden is also on the accused No.2 other than the Ex.P3 cheque. To show that, the said cheque work has been attended by the complainant, he not choosen to produce any documents. Thereby, it creates doubt in the mind of the court regarding the beginning and conclusion of the project as per Ex.P8. Unless produce certain materials to establish that, the complainant has acted upon in accordance with the terms and conditions of the Ex.P8 and expended the money amounting Rs.11 lakhs, then only the question to recover the same from the accused No.2 arise. In the absence of those documents, there is no substantial evidence to convict the accused for non-payment of the amount covered under the cheque.
Judgment 31 C.C.20380/2010
34. No doubt, the accused has denied the very case of the complainant, but contended that, for the payment of electricity and water charges pertaining to the office of the accused No.1 trust situated abutting to the complainant company, the said cheque has been misused by the complainant and filed the false case. Therefore, it is the complainant to produce the required necessary based documents, to substantiates the case attending the project, otherwise, the probable defence of the accused has to be accepted. That, the cheque was issued not for the payment of legally recoverable debt.
35. The accused has denied the service of legal notice stating that, no notice was served on him. In the cause title, it is the mention of address of trust. Admittedly, the accused No.2 was the Chairman of the accused No.1 trust, and he was acted under duly capacity of Deputy Director in Health Department, it is subject to necessary action initiate by the concern department. When, he admitted to act as the Chairman of the accused No.1 trust definitely, he estopped taking contention of the notice was not served on him. Since, the complainant itself has failed to demonstrate its case for attending project in pursuance of Ex.P8, the same because of Judgment 32 C.C.20380/2010 issuance of cheque at Ex.P3 not created any responsibility on the accused No.2. It is the complainant to demonstrate that, the amount due under the cheque is existing legally recoverable debt. When the complainant contending, the attending of work in the complaint and not finished work as deposed in the cross-examination, it is prima facie grounds to believe that, the said transaction is not proved by the complainant, therefore, the accused is entitled for the benefit of doubt. No doubt, filing criminal case against the accused No.2, the said conduct itself is not ground to accept the claim of the complainant. For the alleged offence committed against the accused No.2 necessary criminal action already initiated, therefore, it will decide in the said matter, the same conduct of the accused cannot be produce in deciding the case of the complainant under the said fact put forth by it.
36. On overall appreciation of the material facts available on record, it discloses that, despite the accused harping on the very claim of the complainant, he fails to demonstrate his very case. In the instant case, as appreciated above, it clearly manifested that, without any obligation from the side of the accused, as well as without narrating proper grounds, as to how, accused is liable to Judgment 33 C.C.20380/2010 pay amount covered under the cheque alleged to be issued by the accused is also not demonstrated by the complainant satisfactorily. On the contrary, it can presume that, the said cheque was possessed by the complainant from the unexplainable source, and falsely projected the case and failed to prove the same. Hence, there is no question of drawing presumption under Section 118(a) or 139 of the Negotiable Instruments Act, even though the signature in Ex.P3 is admitted by the accused. Just because, the cheque bares the signature of the accused, that, will not mandate the court to draw the presumption under Section 118 of Negotiable Instruments Act.
At this stage, this court relies upon the decision reported in ILR 2009 KAR 2331 (B.Indramma V/s. Sri.Eshwar). Wherein, the Hon'ble Court held that:
"Held, when the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that, the cheque in question bares his signature would not be sufficient proof of the fact that, he delivered the said cheque to the complainant and the latter received if from the former".Judgment 34 C.C.20380/2010
37. The principle of law laid down in the above decision is applicable to the facts of this case. Merely because, the accused No.2 admits that, cheque bares his signature, that, does not mean that, the accused issued cheque in discharge of a legally payable debt.
In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon Alian Mani V/s. State of Kerala and another). The Hon'ble Apex court held that:
"Once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution".
38. In this case on hand also, on the lack of the complaint failed to prove the alleged transaction, it can gather the probability that, he is not liable to pay Ex.P3 cheque amount of Rs.11 lakhs and it is not legally recoverable debt. Just because, there is a presumption under Section 139 of Negotiable Instruments Act, that, will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque, who is not at all liable to pay the cheque amount. The accused has taken his defence at the earliest point of time, while record accusation and statement under Section 313 of Cr.P.C. by way of denial. The evidence placed on Judgment 35 C.C.20380/2010 record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.11 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act. When complainant has failed to prove the transaction alleged in the complaint, then the question of issuing the cheque for discharge of Rs.11 lakhs does not arise. The evidence placed on record clearly probablize that, complainant has failed to prove that, accused issued the cheque for discharge of liability of Rs.11 lakhs. Hence, complainant has failed to prove the guilt of accused for the offence punishable under Section 138 of Negotiable Instruments Act.
39. From the above elaborate discussions, it is very much clear that, the complainant has failed to adduce cogent and corroborative evidence to show that, accused has issued cheque Ex.P3 in discharge of his legally payable debt for valid consideration. Hence, rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act in favour of the accused.
40. Basically, insertion of the penal provision under Section 138 of the Negotiable Instruments Act, 1881, is to maintain a healthy Judgment 36 C.C.20380/2010 business transaction between the people based on faith, belief and understanding. That is why; the drawer of a cheque should not be allowed to abuse the accommodation given to him by a creditor. At the same time, the payee or holder of a cheque cannot be permitted to use that, penal provision under law as a weapon for unlawful gain or to harass the debtor. To initiate a penal action under Section 138 of Negotiable Instruments Act, against a drawer of cheque, there should not be any kind of lapse or lacuna on the part of the holder of a cheque. Because, the proceeding under Section 138 of Negotiable Instruments Act is not for recovery of money, but to punish a dishonest and incredible debtor, who intentionally tries to escape from his liability. That is why; it is the duty of the complainant in a given case under the Negotiable Instruments Act, 1881, to place a stable and firm case on his behalf before the court. When the case of the complainant itself is shaky, unstable, untrustworthy and doubtful one, then in the option of this court, presumption that, is available under law will come to his help. In the case on hand, the accused has taken several contentions before the court and made out grounds to show that, the case of the complainant is highly improbable.
Judgment 37 C.C.20380/2010
41. The sum and substances of principles laid down in the rulings referred above are that, once it is proved that, cheque pertaining to the account of the accused is dishonoured and the requirements envisaged under Section 138 of (a) to (c) of Negotiable Instruments Act is complied, then it has to be presumed that, cheque in question was issued in discharge of legally recoverable debt. The presumption envisaged under Section 138 of Negotiable Instruments Act is mandatory presumption and it has to be raised in every cheque bounce cases. Now, it is settled principles that, to rebut the presumption, accused has to set up a probable defence and he need not prove the defence beyond reasonable doubt.
42. Thus, on appreciation of evidence on record, I hold that, the complainant has failed to prove the case by rebutting the presumption envisaged under Section 138 of Negotiable Instruments Act. The complainant has failed to discharge the initial burden to prove his contention as alleged in the complaint. Hence, the complainant has not produced needed evidence to prove that, amount of Rs.11 lakhs legally recoverable debt. Therefore, since the complainant has failed to discharge the reverse burden, question Judgment 38 C.C.20380/2010 of appreciating other things and weakness of the accused is not a ground to accept the claim of the complainant in its entirety without the support of the substantial documentary evidence pertaining to the said transaction. The complainant fails to prove its case beyond all reasonable doubt. As discussed above the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answered the Point Nos.1 to 3 are Negative.
43. Point No.4: In view of my findings on point Nos.1 to 3, I proceed to pass the following:
ORDER Acting under Section 255(1) of Cr.P.C.
the accused No.1 and 2 are acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bonds and cash security/surety bonds of the accused Nos.1 and 2 stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 2nd day of April - 2018) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 39 C.C.20380/2010
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : M.Sheshagiri Rao List of Exhibits marked on behalf of Complainant:
Ex.P1 : General Power of Attorney Ex.P2 : Authorization letter Ex.P3 : Original Cheque Ex.P3(a) : Signature of accused No.2 Ex.P4 : Bank endorsement Ex.P5 : Letter dtd:14.08.2014 Ex.P6 : Office copy of legal notice Ex.P7 : Unserved postal cover Ex.P8 : Agreement Ex.P9 : Profile Exs.P10 & P11 : CC of statements in Cr.No.486/2009 Ex.P12 : CC of Charge sheet in C.C.No.27068/2010 Ex.P13 : CC of FIR in Cr.No.486/2009 Ex.P14 : CC of complaint dtd:06.10.2009 Ex.P15 : UCP
List of Witnesses examined on behalf of the defence:
DW.1 : A.V.Rajagopal Rao
List of Exhibits marked on behalf of defence:
Ex.D1 : Notarized copy of Voter ID
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 40 C.C.20380/2010
02.04.2018.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide
separate order.
*****
ORDER
Acting under Section 255(1) of Cr.P.C. the
accused Nos.1 and 2 are acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and cash security/surety bond of the accused Nos.1 and 2 stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.