Bangalore District Court
Office At The Residency vs S/O. Late Kempanna on 2 November, 2019
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 2nd DAY OF NOVEMBER, 2019
PRESENT
Sri. K. GURUPRASAD, B.A., LL.B (Spl.)
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.59692/2017
M/s. Valmark Realty Holdings Pvt. Ltd.,
A registered Company having its registered
COMPLAINANT office at The Residency, No.133/1, 10 th Floor,
Residency Road, Bengaluru - 560 025.
Reptd by its Director - Sri. Ratan Lath
Sri. K. Muniraju
ACCUSED S/o. Late Kempanna,
Aged about 52 years, R/at No.366, KMP
Arcade, R.T. Nagar Main Road, R.T. Nagar,
Bengaluru - 560 032.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is acquitted
(K. GURUPRASAD)
XIV ADDL. C.M.M., BENGALURU
2
JUDGMENT
The present complaint is filed under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The case of the complainant is that, the complainant is developer which has completed various projects of development of properties in and around Bengaluru. The accused who is owner of Sy. No.88/6 of Nagavara Village, Kasaba Hobli, Bengaluru North Taluk entered into an Agreement of Sale and Assignment dtd.11.12.2013 with the complainant in respect of Sy. No.76/1, 76/4 and 88/6 under which the complainant paid a sum of Rs.3 crores to the accused on 4.3.2013, 18.10.2013 and 11.12.2013 as advance amount. It is further claimed that it was mutually agreed under the said agreement that in case, the accused failed to comply with the terms of said agreement, the accused undertook to repay the said amount with interest @ 36% P.A. It is further claimed by the complainant that the accused failed to procure the said property in favour of complainant and expressed his inability to perform his part of contract and as such, the accused came forward to repay the said advance amount of Rs.3 crores with interest and even though the accused repaid the said amount of Rs.3 crores, the accused 3 took time for repayment of interest. Even though the interest amount under the said agreement comes to Rs.96,36,164/-, on mutual negotiations, the accused agreed to repay sum of Rs.80 lakhs as interest towards full and final settlement. Towards discharge of said liability, the accused issued cheque bearing No.098777 dtd.25.9.2017 drawn on Axis Bank Ltd., Sahakara Nagar branch, Bengaluru in favour of complainant for Rs.80 lakhs. When the complainant presented the said cheque for encashment to its banker i.e Corporation Bank, M.G. Road branch, Bengaluru, the said cheque was dishonoured for the reason "funds insufficient" vide endorsement dated 26.9.2017. Thereafter the complainant got issued legal notice dated 9.10.2017 to the accused calling upon the accused to pay the cheque amount. The said legal notice sent by RPAD to the accused was avoided by the accused and returned on 23.10.2017. In spite of issuance of said notice, accused did not pay the cheque amount. Hence the accused has committed the offence punishable under Sec.138 of N.I. Act. Hence this complaint.
3. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons to the accused. Accordingly, Criminal Case was registered against the accused for the offence punishable 4 U/s.138 of N.I. Act and summons was ordered to be issued to the accused.
4. In pursuance of court process issued by this court, the accused appeared through his counsel and got enlarged on bail. Thereafter plea was recorded. The accused pleade not guilty and claimed for trial.
5. In order to prove the case of the complainant, its Director examined himself as CW.1 and got marked Ex.P1 to P6 and closed his side of evidence. Thereafter statement of the accused U/s.313 of Cr.PC was recorded. The accused has denied the incriminating circumstances found in the evidence of complainant. Thereafter, accused himself examined as DW.1 but got marked no documents.
6. Heard both sides. Both counsels filed memo of calculation of interest amount. Perused the complaint, evidence on record, both memo of calculations and court records.
7. The following points for my consideration and determination;
1) Whether the present complaint filed on behalf of the complainant company by its Director - Sri.Ratan Lath is maintainable under law?
52) Whether the complainant proves that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act?
3) Whether the complainant further proves that he is entitled for the relief's as prayed in the complaint?
4) What Order?
8. The above points are answered as under;
Point No.1 to 3 : In negative, Point No.4 : As per the final order, for the following.......
REASONS
9. Point No.1: The accused has contended that even though the complainant company is a Company registered under the Companies Act, no resolution has been produced in this case to show that CW.1 has been Authorized by the complainant company to file this complaint and to give evidence in this case. It is further contended that in fact the complainant company has not given any authority to CW.1 to do so. Therefore, the accused argued that the present complaint is not maintainable under law.
10. In ILR 2014 Kar 2168 (CREF Finance Ltd., Vs Sree Shanthi Homes Pvt. Ltd.), it is held that the Board of Directors 6 of the Company collectively entitled to excise the powers and to do the acts on behalf of Company. Sec.291 of the Companies Act confers the authority to the Board of Directors collectively. Therefore, if a complaint is to be filed, it is necessary for the Board of Directors to authorize any person who file a complaint or depose to the facts in a case and such an authority could be granted by the Board of Directors only under a resolution.
11. In (2013) 3 SCC on-line Kar 10450 (Canara Workshops Ltd., Vs Mantesh), {after referring to various decisions of Hon'ble Supreme Court and High Courts}, it is held that Sec.142 of N.I. Act lays down that no court shall take cognizance of any offence punishable U/s.138 except upon a complaint, in writing to the made by the payee or, as the case may be, the holder in due course of the cheque. If the payee is a corporate body or a Company incorporated under the Companies Act, 1956 in terms of Sec.291 of the Companies Act, 1956, it is the Board of Directors who are entitled to excise all powers as the Company is authorized to excise and do. Thus, a Company, though a legal entity, can act only through its Board of Directors. It is further held that under Sec.291 of the Companies Act, except where express provision is made, that the powers of a company in respect of a particular matter, are to be exercised by the Company in a general meeting, the individual Directors have such power only 7 as are vested in them by the Memorandum and Articles of Association. The question of authority to institute a suit or other proceedings on behalf of a Company is true not a technical matter as it often affects the policy and finances of the Company and unless the power to institute a proceeding is specifically conferred on a particular Director, he would have no authority to institute a suit or other proceeding on behalf of the company and such power can be conferred by the Board of Directors only by passing a resolution in that regard.
12. The principles of law laid down in the above said decisions aptly applicable to the present case on hand. It is clear from the complaint cause title and cross-examination of CW.1 that the complainant company is registered Company. It is further clear from cross-examination of CW.1 that the said complainant company has two Directors including CW.1 and that CW.1 is Managing Director of the complainant company. CW.1 has further admitted during cross-examination that no resolution has been passed authorizing CW.1 to file the present complaint. No doubt, CW.1 has deposed that the other Director has orally authorized him to file this complaint. However this fact is not pleaded in the complaint. Even the other Director of the complainant company is not examined to prove this fact of oral authorization. Hence statement of CW.1 that he has got oral authorization to file this complaint cannot be accepted. It is pertinent to note that the accused has denied that the 8 complainant company has authorized CW.1 to file this complaint and to give evidence in this case. Even suggestion has been put by counsel for accused during cross-examination of CW.1 in this regard. Thus even though the accused has seriously disputed competence of CW.1 to file this complaint, the complainant company failed to produce copy of resolution or Memorandum and Articles of Association of complainant company to show that CW.1 is competent and authorized to file this complaint on behalf of complainant company. In fact, it is not pleaded in the complaint that CW.1 is authorized by the complainant company or competent under Memorandum and Articles of Association to file this present complaint. It is pertinent to note that CW.1 has been recalled on the application of complainant company on 4.9.2019 but the complainant company has not produced Memorandum and Articles of Association of the complainant company nor subsequently passed any resolution authorizing and ratifying the act of CW.1 filing this present complaint. Therefore even though the accused has seriously disputed competence and authority of CW.1 to file this complaint, the complainant company has failed to produce necessary documents, though it had several opportunities to do so. In absence of any resolution passed by the Board of Directors of complainant company or any proof of authorization under Memorandum and Articles of Association of the complainant company, to file the present complaint, it cannot be said that the present 9 complaint is maintainable under law, though CW.1 claims himself to be Managing Director. Therefore, I am of view that the present complaint is not maintainable under law. Accordingly, I answer Point No.1 in Negative.
13. Point Nos. 2 and 3: Since theses two points are inter linked and to avoid repetitions they are taken together for discussion.
14. As regard to limitation to file this complaint, Ex.P1 is cheque dtd.25.9.2017 drawn on Axis Bank, Sahakara Nagar Branch, Bengaluru in favour of the complainant. Ex.P2 is cheque return memo dtd.26.9.2017 issued by Corporation Bank, M.G. Road Branch, Bengaluru. Ex.P3 is office copy of legal notice dtd.9.10.2017 got issued by the complainant to the accused calling upon the accused to pay the cheque amount. Ex.P4 is postal window receipt dtd.9.10.2017 issued by the postal department for having sent Ex.P3-notice by registered post. Ex.P5 is postal cover in which Ex.P3-notice was sent to the accused by registered post, but which was returned with shara dtd.20.10.2017 as "not claimed hence returned to sender". Thus it is clear from Ex.P1 to P5 that when the complainant presented Ex.P1-cheque to its banker I.e Corporation Bank, M.G. Road, it was returned dishonoured with shara "funds insufficient" and that when the complainant got issued legal notice to the accsued by registered post, it was returned unserved with shara "not claimed".
1015. The accused has contended that Ex.P3-notice was not served on him and that he had the office in KMP Arcade, R.T. Nagar till 2016 and he left the said office in the year 2016 and that he is residing in Sahakara Nagar since 2006. Therefore, it is contended that since no statutory notice Under Sec.138 of N.I. Act was served on the accused, there is no cause of action to file this complaint.
16. However above said contention of the accused cannot be accepted because DW.1 has admitted during cross- examination that some of the letters send by post to the above said office address reaches his hands because he has put board regarding his new office address at the premises of said old office. In view of Section 27 of General Clauses Act, when a notice is sent by registered post at correct address, such notice is presumed to be served upon the addressee. The burden of rebutting such presumption is on the person who denies service of such notice. In the present case on hand, the accused has not produced any documentary evidence to show that he has changed his office address or that the address shown in Ex.P3 or Ex.P5 is incorrect. As DW.1 has himself admitted, since he has put board of change of his office in the premises of old office, notices/letters sent at the address of old office reaches his hands. It is pertinent to note that in Ex.P5- postal cover, postal authorities have not made postal shara as "left given address". On the other hand, there is postal endorsement that the accused has not claimed the notice. In 11 view of these facts and circumstances of the case, it can be concluded that the accused has failed to rebut statutory presumption under Sec.27 of General Clauses Act and that Ex.P3-notice is served on the accused.
17. Hence it is clear that when the complainant presented Ex.P1-cheque within three months from the date of such cheque, it was returned dishonoured with shara "funds insufficient" and that when the complainant got issued Ex.P3- notice by registered post within 30 days from the date of such bank endorsement, it was returned with postal shara as "not claimed". Hence the present complaint filed on 14.11.2017 after expiry of 15 days from the date of such postal endorsement and within 30 days thereafter, is in time.
18. As regard to legally enforceable debt or liability, in 2010 (11) SCC 441 - (Rangappa Vs Sri. Mohan), it is held that;
" The presumption mandated by Sec.139 of the Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebutable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the complainant"..............."when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about 12 the existence of a legally enforceable debt or liability, the presumption can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
19. If the facts and circumstances of this case are considered in light of above said principle of law, it is clear that DW.1 has admitted during cross-examination that Ex.P1- cheque belongs to him and that it bears his signature. Hence statutory presumption arises U/s.139 of N.I. Act in favour of the complainant that Ex.P1-cheque is issued in discharge of legally enforceable debt or liability. The burden of rebutting the said statutory presumption by probable defence is on the accused.
20. Apart from above said statutory presumption, the complainant summoned through court, Income Tax Department to produce copy of Agreement of Sale and Assignment dtd.11.12.2013 and got marked the same in his evidence as Ex.P6. It is clear from Ex.P6-agreement that the complainant company and accused entered into said agreement for development of Sy. Nos.76/1, 76/4 and 88/6 of Nagavara Village, Kasaba Hobli, Bengaluru North Tq. It further discloses that the complainant company paid to the accused advance amount of Rs.3 crores I.e Rs.1 crore each on 4.3.2013 and 18.10.2013 and Rs.50 lakhs each on 11.12.2013. It is further clear that it is mutually agreed that the said advance amount of Rs.3 crores shall carry interest @ 36% P.A till the time, it is 13 repaid or it is adjusted. Ex.P6-agreement further discloses that in case of termination of agreement or in case the accused not furnished the documents as sought by the complainant, accused shall repay all money advanced to him to the complainant company along with interest within 15 days from the date of termination of the agreement.
21. Further CW.1 Ratan B. Lath has entered the witness box and deposed that accused has entered into Ex.P6- Agreement of Sale and Assignment on 11.12.2013 with complainant company and received advance amount of Rs.3 crores. CW.1 has further deposed that it is agreed under the said agreement that the accused undertook to repay the said advance amount with interest @ 36% P.A. CW.1 has further deposed that since the accused has failed to perform his part of contract under Ex.P6-agreement, he repaid said advance amount of Rs.3 crores and after mutual negotiations, he agreed to pay a sum of Rs.80 lakhs towards interest amount though the accused was liable to pay a sum of Rs.96,36,164/- towards interest amount. CW.1 has deposed that towards said liability, the accused issued Ex.P1-cheque, which came to be dishonoured. During cross-examination, CW.1 has admitted that said interest amount @ 36% P.A on the advance amount of Rs.3 crores should be paid from the date of Ex.P6-agreement. CW.1 has further deposed that the accused repaid Rs.2 crores on 3.7.2014 while the accused repaid balance amount of Rs.1 crore on 31.7.2014. When it is suggested to CW.1 that if 14 interest @ 36% P.A is calculated on amount of Rs.3 crores from 11.12.2013 to 31.7.2014, it does not come to Rs.80 lakhs, CW.1 replied that after mutual negotiations between the accused and complainant company, interest amount was reduced to Rs.80 lakhs. CW.1 has denied suggestion that the accused has never agreed to pay interest amount of Rs.96,36,164/- or Rs.80 lakhs to the complainant company and that the complainant company has misused the blank cheque given by the accused for some other transaction.
22. On the other hand, the accused has entered the witness box and examined himself as DW.1 and deposed that he had entered into an agreement of sale on 11.12.2013 with complainant company in respect of Sy. No.88/1 of Nagavara Village and received advance amount of Rs.3 crores from the complainant company. DW.1 has further deposed that since the said sale transaction was not complete and as complainant insisted to return the advance amount, he returned advance amount of Rs.3 crores to the complainant. DW.1 has deposed that there was no condition in the agreement to pay interest @ 36% P.A advance amount. DW.1 has further deposed that he has never agreed to pay any interest on advance amount nor it was settled after negotiations to pay Rs.80 lakhs to the complainant. DW.1 has further deposed that he had issued Ex.P1-cheque in respect of some other transaction for purchase of land. DW.1 has deposed that he has not received any notice from the complainant. During cross-examination, DW.1 15 has deposed that he received Rs.1 crore out of Rs.3 crores on 4.3.2013, that he received further amount of Rs.1 crore on 18.10.2013 and that he received remaining amount of Rs.1 crore through cheques on 11.12.2013. DW.1 has further deposed that he repaid amount of Rs.2 crores on 3.7.2014 while he repaid Rs.1 crore on 31.7.2014. DW.1 has further deposed that the transaction in respect of which Ex.P1-cheque was issued for purchase of land near Devanahalli but he cannot tell survey number and the village within limits of which the said property situated. DW.1 has deposed that he has not taken any receipt from the complainant nor entered into any agreement of sale and Memorandum of Understanding with complainant in respect of said another transaction. DW.1 has deposed that he has not issued notice to complainant calling upon the complainant to complete the transaction in respect of land near Devanahalli. DW.1 has deposed that Ex.P1-cheque was given in blank to the complainant. DW.1 has deposed that he has not issued any notice to the complainant calling upon complainant to return Ex.P1-cheque nor has he given stop payment instruction to his banker, regarding said cheque. DW.1 has denied the suggestion that he has issued Ex.P1- cheque for payment of interest amount under the Agreement of Sale.
23. I have meticulously gone through the complaint and evidence on record. Even though the accused has denied that there is recital in Ex.P6-agreement to pay interest @ 36% P.A 16 on the advance amount, Ex.P6-agreement clearly shows that the accused has agreed to pay interest @ 36% P.A on the advance amount till the said amount is fully paid or till the amount is adjusted. Now the question is what is actual amount of interest on the said advance amount of Rs.3 crores. The complainant has filed memo of calculation on 3.10.2019 while accused has filed memo of calculation on 10.10.2019. It is not disputed by both parties that accused received Rs.1 crore out of Rs.3 crores on 4.3.2013, that accused received further amount of Rs.1 crore on 18.10.2013 and that the accused received balance amount of Rs.1 crore out of Rs.3 crores on 11.12.2013. It is also not disputed by both parties that the accused repaid Rs.2 crores out of Rs.3 crores on 3.7.2014 while the accused paid balance amount of Rs.1 crore on 3.7.2014. It is also not disputed by both parties that end dates for calculation of such interest on the advance amount is 3.7.2014 and 31.7.2014 as the case may be. However the complainant claims that start dates for calculation of interest are 4.3.2013 {on which a sum of Rs.1 crore was paid to the accused}, 18.10.2013 {on which further a sum of Rs.1 crore was paid to the accused by complainant} and 11.12.2013 {on which balance amount of Rs.1 crore was paid to the accused by the complainant}. If the interest amount is calculated from complainant's points of view, the interest on Rs.1 crore for the period from 4.3.2013 to 3.7.2014 comes to Rs.47,90,000/-, interest on further amount of Rs.1 crore for the period from 17 18.10.2013 to 3.7.2014 comes to Rs.25,50,000/- and interest on balance amount of Rs.1 crore for the period from 11.12.2013 to 31.7.2014 comes to Rs.23 lakhs. As per complainant, in all the accused is liable to pay interest amount of Rs.96,40,000/-. On the other hand, the accused contends that start date for calculation of rate of interest is 11.12.2013 I.e date of execution of Ex.P6-agreement of sale. As per the accused, interest on Rs.2 crores for the period from 11.12.2013 to 3.7.2014 comes to Rs.40,40,000/- while interest on Rs.1 crore for the period from 11.12.2013 to 31.7.2014 comes to Rs.23 lakhs. As per the accused, in all the accused is liable to pay interest amount of only Rs.63,40,000/-.
24. Therefore, moot question to be decided in this case is, which is start date/dates for calculation of interest on advance amount of Rs.3 crores. In other words, question in this case is whether interest shall be calculated from the date of Ex.P6-agreement of sale or from the respective dates on which complainant had made payments of advance amounts to the accused. It is pertinent to note that Ex.P6-agreement of sale does not expressly and specifically disclose and state from which date interest shall be calculated on the advance amount. It is settled principle of law that when the recitals of any contract is not express, the intention of the parties regarding the terms of the contract can be gathered from the surrounding circumstances. In the present case on hand CW.1 has categorically admitted on page 3 of his cross-examination 18 that interest @ 36% P.A should be paid under the agreement of sale from the date of said agreement of sale. Therefore, when CW.1 has clearly admitted that interest @ 36% P.A shall be calculated on advance amount from the date of Ex.P6- agreement of sale, it can be concluded that both parties to Ex.P6-agreement of sale intended that the interest on advance amount shall be calculated from date of Ex.P6-agreement of sale I.e 11.12.2013 and not from the dates on which complainant paid advance amounts to the accused I.e from 4.3.2013 or 18.10.2013. In view of above said admission of CW.1, it can be concluded that interest amount on advance of Rs.3 crores shall be calculated from 11.10.2013 and as such the calculation of interest as shown in memo of calculations filed by the accused appears to be correct and proper. Further more, the complainant has claimed further interest @ 24% P.A on amount of Rs.96 lakhs for the period from 1.8.2014 to 30.8.2017. However there is nothing in Ex.P6-agreement or evidence on record in this case to show that it was agreed between the parties to Ex.P6-agreement that accused shall pay further interest @ 24% P.A. Therefore such claim of the complainant to pay @ 24% P.A on the sum of Rs.96 lakhs cannot be accepted. Therefore the calculation of interest shown in memo of calculation filed by the complainant is incorrect and cannot be accepted.
1925. Therefore, it is clear from above said discussion that accused is liable to pay a sum of Rs.63,40,000/- only towards interest amount on the advance amount of Rs.3 crores. However complainant claims that Ex.P1-cheque is issued for Rs.80 lakhs. On careful perusal of Ex.P1-cheque, it is clear that the signature of accused at Ex.P1(a) is in black ink while the other contents of the cheque are written in blue ink. Even handwritings appear to be different. If the accused had really written the contents of the cheque and signed on the Ex.P1- cheque, it is not clear why accused used different inks to put his signature on the cheque and to write other contents of the cheque. The complainant has failed to offer any explanation regarding use of different inks in Ex.P1-cheque. It is also highly improbable that when the accused is liable to pay only Rs.63,40,000/-, why the accused agreed to pay higher amount I.e Rs.80 lakhs and issued cheque for the higher amount of Rs.80 lakhs. In view of these facts and circumstances, the defence of the accused that he had given Ex.P1-cheque in blank to the complainant in respect of some other transaction appears to be probable. No doubt, the accused has not disclosed in detail, survey number of the land and the name of village and amount of sale consideration of said another transaction of purchase of land near Devanahalli. The accused has also not produced any documentary evidence in proof of his defence. However it is settled principle of law that accused need not prove his defence beyond reasonable doubt 20 to rebut statutory presumption U/s.139 of N.I. Act. If the defence appears to be probable, the same is sufficient to rebut the statutory presumption. In the present case on hand when the amount appearing in Ex.P1-cheque appears to be higher than what is accused actually liable to pay to the complainant and when different inks are used in Ex.P1-cheque to put signature at Ex.P1(a) and to write other contents of the cheque, the defence of the accused that he gave blank cheque for some other transaction appears to be probable. No doubt, Sec.20 of N.I. Act authorizes payee or holder in due course to fill up blank cheque. However he has to fill-up the amount not exceeding what is actually due from drawer of the cheque. In the present case on hand, different inks are used to put signature on Ex.P1-cheque and to write other contents thereof. It indicates that some person other than the accused has filled up Ex.P1-cheque. However, it is clear from the evidence on record that while accused is liable to pay only Rs.63,40,000/- towards interest amount, the cheque is filled-up showing Rs.80 lakhs as cheque amount. In other words, Ex.P1- cheque is filled up showing the cheque amount in excess of what is actually due from the accused at the time of issuance of Ex.P1-cheque.
26. Thus, it is clear that accused is not liable to pay cheque amount of Rs.80 lakhs, but he is liable to pay Rs.63,40,000/- to the complainant. In other words, Ex.P1- cheque is not issued in discharge of legally enforceable debt to 21 the extent shown in Ex.P1-cheque. When any debt or liability is less than the cheque amount shown in cheque in question, it cannot be said that the cheque is issued in discharge of legally enforceable debt or liability to the extent shown in cheque in question. When the cheque amount in Ex.P1-cheque is more than what is actually due from the accused, this court has no other way but to dismiss the complaint and to acquit the accused.
27. In view of my above discussion, I am of view that the accused has established his defence that the accused is not liable to pay to the extent of cheque amount and that Ex.P1- cheque is not issued in discharge of legally enforceable debt or liability to the extent of cheque amount. Thus initial burden of proof is discharged by the accused and the accused has successfully rebutted the statutory presumption under Sec.139 of N.I. Act. As a result, the burden of proof shifts on the complainant to prove his case. However the complainant has utterly failed to prove that accused is liable to pay to the extent of cheque amount I.e Rs.80 lakhs. On the other hand, it is clear from evidence on record that accused is liable only to pay Rs.63,40,000/- and not Rs.80,00,000/- or Rs.96,36,164/- as claimed by the complainant. Hence, the complainant has failed to prove the compliance of necessary ingredients to constitute the offence. The complainant has also failed to prove his case and as such the complainant is not entitled for 22 grant of any reliefs sought for in this case. Hence, I answer point nos.2 & 3 in negative.
28. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3, this court proceed to pass the following......
ORDER
Acting under Section 255(1) of Cr.PC
accused is hereby acquitted of the offence
punishable under Section 138 of Negotiable Instruments Act.
The bail bond of accused stands cancelled.
Cash security deposited by the accused is ordered to be refunded in his favour through account payee cheque with proper identification in accordance with law, if refund voucher is furnished.
(Dictated to the stenographer, transcript thereof, computerized and print out taken by him is verified, corrected and then pronounced by me in open court on this the 2nd Day of November, 2019) (K. GURUPRASAD) XIV A.C.M.M., Bengaluru 23 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. Rathan .B Lath
Witnesses examined for the defence:
DW.1 : Sri. K. Muniraju
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P1(a) : Signature of accused
Ex.P2 : Bank endorsement
Ex.P3 : Legal notice
Ex.P4 : Postal receipt
Ex.P5 : Returned postal cover
Ex.P6 : Agreement of Sale and Assignment
Documents marked for the defence:
NIL
(K. GURUPRASAD)
XIV A.C.M.M., BENGALURU