Bangalore District Court
Sri.P.V. Suresh vs Sri.Ranjan Changappa.V.S on 18 September, 2018
1 C.C.No.30592/14 J
IN THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This 18th day of September, 2018
Present:- Smt. Saraswathi.K.N, B.A.L.,LL.M.,
XVI Addl.CMM., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.30592/2014
Complainant : Sri.P.V. Suresh,
S/o. P. Venkatadri Naidu,
No.1566,A/3,
Vallabham Aaprtment,
16th Main road,
Annanagar West,
Chennai - 40.
(Rep. by Sri.R. Rajashekar &
Associates., Advs.,)
- Vs -
Accused : Sri.Ranjan Changappa.V.S,
Aged Major,
No.190/9, 1st Floor,
Krishna Layout,
Begur Road,
Hulimavu,
Bannerghatta Road,
Bengaluru - 560 076.
Also Office at :
M/s.Indus Integrated Facility
Services,
No.176/D, Ground Floor,
Late Hanumappa Road,
BTS Layout, Arakere Village,
Bannerghatta Road,
Bengaluru - 560 076.
(Rep. by Sri.Arun Bangera and
Sri.Nagarajappa A.S, Advs.,)
2 C.C.No.30592/14 J
Case instituted : 13.10.2014
Offence complained of : U/s 138 of the N.I. Act
Plea of Accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of order : 18.9.2018
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. The brief case of the Complainant is that, during the Accused and he is well known to each other since considerable time. During the month of October 2012, the Accused had approached him and requested for a financial assistance of Rs.8,88,000/= for the purpose of meet his urgent domestic and business problems, promising to repay the same within one year, along with nominal interest/bank interest. Believing his version, he mobilized his funds and lent the same to the Accused by way of cash.
3. The Complainant has submitted that, after the lapse of the stipulated period of one year, when he approached the Accused for the repayment of the said loan amount, he pleaded his financial difficulties and kept on postponing the repayment of the said loan and ultimately 3 C.C.No.30592/14 J upon his repeated demands, he has issued the following cheques towards the part payments:-
a) Cheque No.696135 dated:- 13.8.2014 for Rs.1,00,000/=;
b) Cheque No.693136 dated:- 13.8.2014 for Rs.1,00,000/=;
c) Cheque No.693137 dated:- 13.8.2014 for Rs.1,00,000/=;
d) Cheque No.693138 dated:- 13.8.2014 for Rs.1,00,000/=.
all drawn on the Vijaya Bank, Sarakki Branch, Bengaluru, in his favour, with an instruction to encash the same towards the part repayment of the said loan.
4. The Complainant has submitted that, as per the instructions of the Accused, when he presented the said cheques for encashment through his banker, the said cheques came to be returned dishonoured as "Account closed" vide Bank Endorsement dated 16.8.2014. Thereafter, he got issued a legal notice to the Accused on 1.9.2014, calling upon him to pay the cheques amount to him within 15 days from the date of the receipt of the said legal notice and the said legal notices which were sent to the Accused to his both the addresses were duly served upon him on 4.9.2014. Inspite of it, the Accused has 4 C.C.No.30592/14 J neither replied nor has he repaid the cheques amount to him. Hence the present complaint.
5. The Complainant submits that, the dishonour of the cheques by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that he be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
6. The Complainant has led his pre-summoning evidence and he has filed his affidavit-in-lieu of his sworn- statement, in which, he has reiterated the complaint averments.
7. Prima-facie case has been made out against the Accused and he has been summoned vide the order of the same date.
8. The Accused has appeared before the court and he has been enlarged on bail and the substance of the accusation has been read over to him, to which, he has pleaded not guilty and has claimed the trial.
9. In his post-summoning evidence the Complainant is examined as P.W.1 and he has filed his affidavit-in-lieu 5 C.C.No.30592/14 J of his chief examination, in which, he has reiterated the complaint averments.
10. In support of his case, P.W.1 has relied upon the documentary evidence as per Ex.P.1 to P.16, which is as follows:-
Ex.P1 to P4 are the Original Cheques dated:-
13.8.2014, in which the signatures identified by P.W.1 as those of the Accused as per Ex.P1(a) to P4(a) respectively, the 4 Bank Memos as per Ex.P5 to P8 respectively, the office copy of the Legal Notice as per Ex.P9, the two Postal Receipts as per Ex.P10 and P11 respectively, the Postal Acknowledgement as per Ex.P12, the certified copies of two Bank Passbooks as per Ex.P13 and P14 respectively and the certified copies of the I.T.Returns of the Complainant for the Assessment Years 2012-13 and 2013-14 as per Ex.P15 and P16 respectively.
11. P.W.1 has been cross-examined by the learned Defence Counsel.
12. The statement of the Accused as required under Sec. 313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence found against him and has chosen to lead his rebuttal evidence.
6 C.C.No.30592/14 J13. The Accused has examined him as D.W.1 by having filed his affidavit, which has been accepted by this court, as per the direction of our Hon'ble High in Afzal Pasha V/s. Mohamed Ameer Jan, reported in LAWS (KAR) 2016 (8) 131, in which, the acceptance of the affidavit of the Accused is permitted by our Hon'ble High Court in accordance with the direction of the Hon'ble Apex Court in the case of the Indian Bank Association Vs., Union of India, reported in (2014) 4 SCC 590.
14. The gist of the defence of the Accused in his affidavit is as follows:-
i) That the Complainant has filed this false case against him and he has is a totally stranger to him;
ii) That, he is one of the partners of the firm M/s.Indus Integrated facility Services and that one Mr.Uthaiah and he are the partners of the said firm;
iii) That Mr.Uthaiah was administering the business of the firm, while he is only the sleeping partner and that he is residing at Madikerei and as such, he is not fully participating in the business of the firm;7 C.C.No.30592/14 J
iv) That his partner Mr.Uthaiah had taken his signed blank cheques in certain cheque books from him for the firm's business, since he is not in Bengaluru and as such, for his business purpose, he had put his signatures in the cheque books, for making payments to the firm's business purpose and not for any personal business;
v) That one Ramanappa was their Accounts officer and that he was managing the firm and the brother of the Complainant Sri. Chandrashekar was also working in their firm and the said Ramanappa has misused the company accounts and hence, they suspended him from their firm;
vi) That Ramanappa and the brother of the Complainant have colluded with each other and stolen the signed blank cheques from their office and handed over the same to the Complainant and got filed this false case against him so as to make illegal gain;
vii) That, he is not a friend of the Complainant and he, has no relationship with him;8 C.C.No.30592/14 J
viii) That, it is only after the NBW that was issued against you and the police visited his house, he came to know that, the Complainant has misused his cheques and filed this false case against him by creating the story of the alleged loan transaction;
ix) That, he has not borrowed any loan amount from the Complainant and that except the signature on the subject cheque, he has not filled up any of its' contents and that, he is residing in Madikeri, which is native place and as such, he has not received the legal notice from the Complainant;
15. In support of his evidence, DW.1 has produced the following documents:-
i) The notarised copy of the Deed of
Admission of Partnership Firm dated:
5.4.2014 as per Ex.D.1;
ii) The certified copy of the complaint dated:
20.9.2014 as per Ex.D.2.
Accordingly, he has prayed for his acquittal.
16. DW.1 has been has been cross-examined by the learned counsel for the Complainant.
9 C.C.No.30592/14 J17. I have heard the arguments of the learned counsel representing the Complainant as well as the Accused and perused the materials on record.
18. The learned Defence Counsel has relied upon the following decisions:-
i) In Sri.Shivappa Reddy Vs., C.K.Jagannath, reported in ILR 2010 KAR 4242;
ii) In Sri.G.V.Satish Reddy Vs., M/s.Shiva Distilleries Ltd., Rep. by it's Vice-President reported in ILR 2010 KAR 4249;
iii) In Sri.H.Manjunath Vs., Sri.A.M.Basavaraju, reported in ILR 2014 KAR 6572;
iv) In John.K. Abraham Vs., Simon C.Abraham and another, reported in (2014) 2 SCC 236;
v) In Sri.A.Viswanatha Pai Vs., Sri.Vivekananda S.Bhat, reported in ILR 2009 KAR 172;
vi) In Sri.K.Subramani Vs., K.Damodara Naidu, reported in (2015) 1 SCC 99;
vii) In Tummala Venkateshwar Rao Vs., State of Andhra Pradesh, reported in (2014) 2 SCC 240;
viii) In K.Subramani Vs., K.Damodara Naidu, reported in (2015) AIR SCW 64 SC.
19. I have considered the submissions and perused the record carefully.
10 C.C.No.30592/14 J20. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Sec.138.
The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
21. Apart from this, Sec.139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
.
"It shall be presumed, unless the contrary is proved, that:-11 C.C.No.30592/14 J
The holder of a cheque received the cheque, of the nature referred to in Sec.138, for the discharge, in whole or in part, of any debt or other liability".
22. Also, Sec.118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) That every Negotiable Instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
23. Thus, the Act clearly lays down presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
24. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
25. It is a well settled position of law that the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of 12 C.C.No.30592/14 J consideration apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
26. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
27. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable 13 C.C.No.30592/14 J presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
28. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
29. Admittedly, there is no dispute with regard to the fact that the cheques in dispute relate to the account in the name of the firm "M/s. Indus Integrated Facility Services"
hereinafter referred to as the "Firm" and that they bear the signatures of the Accused. However, there is a serious dispute on the part of the Accused with regard to the existence of the alleged loan transaction between the Complainant and him and that he has issued the subject cheques in favour of the Complainant towards the discharge of his legally payable debt as claimed by the Complainant in the present case.
30. It is also pertinent to note that, there is a serious dispute on the part of the Accused with regard to the question of the very maintainability of the complaint on the technical ground that, though the cheques in dispute relate to the account of the firm, there is neither a legal 14 C.C.No.30592/14 J notice caused to the said firm nor has the said firm been arrayed as an Accused in the present case.
31. Therefore before proceeding with the matter on merits, it is necessary to consider the position of law with regard to the maintainability of the complaint in the light of the specific defence raised by the Accused in this regard.
32. It is a settled position of law that, a Partnership Firm is a juristic person and a legal entity and as such, it has the capacity to sue and the liability to be sued. Therefore in any proceeding, which is intended to be initiated against a partnership firm, it is mandatory that, the firm should be impleaded as Accused, as distinct from its Managing partner and the authorized signatory, having been arrayed as the Accused in the said case.
33. In this regard, it is pertinent to note that, the Complainant in the present case has described the Accused in his individual capacity, though his office address is shown in the name of the office of the firm. Therefore, there is no description of the Accused as a Managing Partner and the Authorized Signatory of the firm in the cause title of the complaint by the Complainant.
34. It is also pertinent to note that, even in the complaint averments as well as in the legal notice at 15 C.C.No.30592/14 J Ex.P.7, there is no pleading with regard to the role of the Accused in the firm and it is not pleaded by the Complainant that, the Accused has allegedly transacted with him in his capacity as the Managing Partner of the aforesaid firm.
35. Therefore when the complaint averments and the averment in the legal notice are carefully perused by this court, it goes to show that, the Complainant's claim is as though, he has transacted with the Accused in his individual capacity. In such circumstance, it appears that, there was no necessity for the Complainant to array the firm as an Accused, distinctly from that of the present Accused.
36. However, the main defence of the Accused in the present case is that, as the cheques in dispute admittedly belong to the accounts of the firm, it was incumbent on the part of the Complainant, to have arrayed the firm also as an Accused, distinctly from him in the present case.
37. In this regard, it is an undisputed fact that, the cheques in dispute relate to the account of the firm vide Account No.130406211000032.
38. In this regard, it could be seen that, even during the cross-examination of the Complainant, the main line of his cross-examination is in this regard.
16 C.C.No.30592/14 J39. It is pertinent to note that, for the first time in his cross-examination the Complainant has come up with a claim that, on 4.10.2011, he has lent Rs.4.5 Lakhs to the Accused by way of cheque drawn on the SBI and the same was issued in favour of the firm and not in the name of the Accused.
40. According to the Complainant, though it is a company, admittedly it is not a company, but a firm. However, the Complainant has deposed that, the said company was owned by the Accused.
41. Likewise, it is elicited from the Complainant that, he does not know, as to, who was the authorized signatory of the company in the year 2011 and he has also deposed that the cheques in dispute relate to the account of the firm "M/s.Indus Integrated Facility Services" and that as per the cheques and the alleged transaction, he had the financial transaction only with the said firm. However, he has pleaded ignorance to the suggestion that, he has not made the said company as a party in this case and that he has not pleaded in the complaint, as to, who was the authorized signatory of the said company.
17 C.C.No.30592/14 J42. But it is interesting to note that, though the Complainant claims to have transacted with the Accused, he has pleaded total ignorance about the family back ground of the Accused, as well as the present address of the latter in Bengaluru as well as the native place address of the latter.
43. According to the Complainant, as his brother was working in the firm of the Accused, he came in contact with the Accused. That means according to the Complainant, it is only because of the fact that, his brother was working in the firm that, he has allegedly transacted with the firm of the Accused and not with the Accused in his individual capacity.
44. It is also interesting to note that, the Complainant has also admitted that, he has not issued the legal notice to the firm and in such circumstance, without touching the merits of the case, it can be clearly inferred that, though the cheques in dispute prima-facie disclose that they are drawn on the accounts, which were in the name of the firm "M/s.Indus Integrated Facility Services", the Complainant either knowingly or unknowingly has failed either to cause the legal notice to the said firm or arrayed the said firm as an Accused in the present case. The omission on the part of the Complainant in this regard is fatal to his case, since 18 C.C.No.30592/14 J the same is an incurable defect which renders the complaint not maintainable.
45. No doubt, when the Accused has led his rebuttal evidence in his affidavit, he has admitted that, he had signed on the cheques relating to the accounts of his firm for the purpose of the business transactions of his firm. To this extent his defence that, the Complainant has not verified, as to, who was the authorized signatory of the firm does not hold any water.
46. Likewise the Accused has clearly admitted that, he has signed on the cheques relating to the accounts of his firm and as such, to this extent, his defence that, the Complainant does not know anything about the firm of the Accused cannot be an acceptable defence, as argued by the learned Defence Counsel.
47. However, it is pertinent to note that, when as per his own admission, the Complainant has failed to implead the firm as an Accused in the present case, which admittedly has an independent legal existence, apart from the Accused, who was the Managing Partner of the said firm, then, as rightly argued by the learned Defence Counsel, the complaint is liable to file on this technical ground itself. Therefore the defence of the Accused with 19 C.C.No.30592/14 J regard to the maintainability of the complaint on this technical ground is an acceptable one. Moreover, it is not a curable defect and as such, at this stage, this court cannot permit the Complainant to implead firm as an Accused in the present case. Therefore on this technical ground, the complaint is liable to fail and hence the main argument of the learned Defence Counsel in this regard needs to be acceptable by this court.
48. Even otherwise, when the case of the Complainant is considered by this court on, it could be seen that, there are serious contradictions between the pleading and proof, which are rightly elicited by the learned Defence Counsel during the cross-examination of the Complainant.
49. Admittedly, as per the complaint averments, a sum of Rs.8,88,000/= is alleged to have been lent by the Complainant to the Accused by way of cash. However, as rightly argued by the learned Defence Counsel, though there is only pleading to the fact that, the Accused had approached the Complainant during the month of October 2012, seeking a financial assistance of Rs.8,88,000/=, there is no specific pleading, as to, when the said amount was allegedly advanced by the Complainant to the Accused.
20 C.C.No.30592/14 J50. Moreover, there is also a contradiction in the case of the Complainant wherein as per the complaint averments, after having mobilized the funds, the Complainant is alleged to have lent a loan of Rs.8,88,000/= to the Accused by way of cash. However, the Complainant has contradicted in this regard in his cross- examination by coming up with a contrary claim that, he has lent Rs.4.5 Lakhs to the Accused by way of cheque on 4.10.2011 drawn on the SBI in favour of the firm of the Accused and another sum of Rs.1.8 Lakhs on 17.10.2012 through cheque and the balance amount by way of cash.
51. Interestingly, this fact has been introduced for the first time by the Complainant only in his cross- examination. Though initially the Complainant had not produced any document/s to prove the same, subsequently he has produced his Bank Passbooks as per Ex.P.13 and P.14 and he has relied upon the relevant entries dated: 4.10.2011 and 17.10.2012 and claims that, the respective amounts shown in the said entries were paid by him to the firm of the Accused through cheques.
52. However, it is rightly elicited from the Complainant that, there is no mention of either the name of the Accused or the account number in the relevant 21 C.C.No.30592/14 J entries in Ex.P.13 and P.14 and that, there is no mention in the said Bank Passbooks, about his having allegedly paid the said amounts to the Accused.
53. It is further elicited from him that, though he has produced his I.T. Returns as per Ex.P.15 and P16, which are the I.T. Returns of the Assessment year 2012-13 and his I.T. Returns for the Assessment year 2013-14 respectively, he has admitted the suggestion that, as per Ex.P.15, the cash on hand with him on 2012-13 was only Rs.18,102/= and during the year 2013-14, it was only Rs.31,292/= as per Ex.P16.
54. Interestingly, the Complainant has admitted the suggestion that, he has no documentary proof in support of his claim that, as on the date of the alleged loan transaction, he had the funds to the tune of Rs.8,88,000/= with him and that, he has not produced any document in this regard.
55. Moreover, it is elicited from the Complainant for the first time in his cross-examination that, he has lent the loan of Rs.8,88,000/= to the Accused by availing loan from the others. However, this also is an improvement in the case of the Complainant for the first time in his cross-
22 C.C.No.30592/14 Jexamination without the same having been supported by pleading.
56. It could be seen that, even for a moment, if it is assumed by this court that, the claim of the Complainant that he could arrange the funds by borrowing the amounts from others is believed by this court to be true, then the question that arises next is as to what was the necessity for the Complainant to borrow loans from others and thereafter lend the same to the Accused, from whom admittedly, he has not pleaded having demanded any interest or having collected any security document/s for the purpose of the security of the said loan.
57. Moreover, as per own pleading of the Complainant, at the time of borrowing the alleged loan, the Accused had promised to repay the same after one year. In such circumstance, the no prudent man would borrow loan from the others by paying interest and lend interest free loans to others, that too when the repayment period of such loan is more than one year. Therefore this claim on the part of the Complainant cannot be believed by this court at any stretch of imagination.
58. It is further relevant to note that, it is elicited from the Complainant that, there is a difference in the 23 C.C.No.30592/14 J handwriting between the contents and the signature and the cheque in dispute and that he does not know, the date of the alleged issuance of the cheque by the Accused to him.
59. However, when the Complainant has miserably failed to establish his source of funds and there are serious contradictions between his pleading and proof, a serious doubt arises with regard to the very existence of the alleged loan transaction as claimed by him in the present case.
60. Now coming to the defence version of the Accused. He has filed his affidavit, in which, interestingly he has admitted that, he is one of the partners of the firm "M/s. Indus Integrated Facility Services" along with one Mr.Uthaiah. However, he has claimed that Mr.Uthaiah was administering the business of the firm, while he was only a sleeping partner, being residing at Madikeri and as such, he was not fully participating in the business of the firm. However, he has claimed that, his partner Mr. Uthaiah had taken his signed blank cheques from certain cheque books for the business of their firm, since he was not in Bengaluru and for the purpose of the payment towards the business of his firm and not for any personal business.
61. Therefore he has alleged that, there was one Ramanappa, who was their Accounts Officer, who was 24 C.C.No.30592/14 J managing the firm and that the brother of the Complainant Mr. Chandrashekar who was also working in their firm. According to the Accused, the said Ramanappa and the brother of the Complainant Chandrashekar have colluded with each other and stolen the signed cheques from their office and handed over the same to the Complainant and got filed this false case against him through the latter.
62. With this defence, the Accused has clearly admitted that, he used to sign the cheques of the firm for the purpose of making payments towards the firm's businesses and that, his cheques were stolen by the brother of the Complainant and Ramanappa.
63. It is pertinent to note that, though the Accused has produced the true copy of the complaint dated:
20.9.2014 alleged to have lodged by him against Ramanappa before the Commissioner of Police, Bengaluru as per Ex.D2, but admittedly the said complaint is only in respect of the alleged missing of the cheques, which are mentioned in the said complaint. Admittedly there is no reference to the cheques in dispute in the said complaint, with regard to which the Accused has pleaded ignorance in his cross-examination when specifically questioned in this regard.25 C.C.No.30592/14 J
64. Further, it could be seen that, even the said complaint said to have been initiated by the Accused against the Mr.Ramanappa is only subsequent to the dishonour of the cheques in dispute. This is clearly elicited from the Accused in his cross-examination and as such, the defence of the Accused in this regard cannot be considered to be a probable one, in the light of the complaint at Ex.D.2, which in no way is concerned either to the Complainant or to the cheques in dispute.
65. Moreover, when the document at Ex.D.1, being the attested copy of the Deed of Admission of Partnership Firm is considered by this court, it goes to show that, there is a recital in the said document, with regard to the existence of the firm since 2011, as the Accused as one of the partners and it is only under the said document that, the other partner by name Mr.Uthaiah has been made as a partner to the already existing firm.
66. Therefore, it is clear that, the firm "Indus Integrated Facility Services" has come into existence with effect from 1.4.2011 as per the own admitted document of the Accused at Ex.D.1. Therefore the defence of the Accused that, he was only a sleeping partner and it was Mr. Uthaiah, who was administering business of the firm, 26 C.C.No.30592/14 J cannot be considered to be a valid defence acceptable to this court.
67. It is interesting to note that, though the Accused has alleged the theft of his signed cheques from his office, during his chief-examination itself, he has contradicted by claiming that, he also used to issue his signed cheques to his other partner Mr. Uthaiah.
68. Therefore if the defence of the Accused that, he was not the authorized signatory of the firm was a probable one, then there was no necessity for him to issue his signed blank cheques to Mr. Uthaiah or keep such signed blank cheques in his office for the purpose of making payments towards the business of his firm. This clearly gives rise to a serious doubtful circumstance, in the defence of the Accused in view of his own contradictions in this regard.
69. Moreover, it is also interesting to note that, though the Accused has alleged in his affidavit that, Mr. Uthaiah had taken signed blank cheques from him, he has admitted that, he has not filed any complaint against either Mr. Uthaiah or the brother of the Complainant Chandrashekar. Therefore it is clear that, though the Accused has alleged that his signed blank cheques have 27 C.C.No.30592/14 J been misused by the Complainant by colluding with his brother, the non-taking of steps by him against the brother of the Complainant also goes to show that, he has made an attempt to come out with a defence to escape from his liability by hook or crook.
70. Moreover, it is elicited from the Accused in his cross-examination that, he has not produced any document to show that, Mr.Ramanappa was an Accountant in their firm, as alleged by him in the complaint at Ex.D.2. Therefore the conduct of the Accused clearly goes to show that, only with an intention to escape from his liability, he has come up with a false defence.
71. Moreover, there is no explanation offered by the Accused with regard to the account in the name of the firm with the account No.130406211000032 having been closed and he has explained, as to under what circumstances, the said account has been closed and he has not whispered a word, as to, if the said account has been closed by the firm voluntarily or at the instance of the bank?.
72. In such circumstance, when there is no evidence led by the Accused to show, as to, when and why, the said account came to be closed his entire defence version suffers from serious doubt.
28 C.C.No.30592/14 J73. Moreover, it could be seen that, though the Accused alleges that, the Complainant is a stranger to him, when he himself claims that, the brother of the Complainant Sri.Chandrashekar was also working in their firm and that one Mr. Ramanappa and the brother of the Complainant Chandrashekar have colluded with each other and committed the theft of the cheques etc., it leads to an inference that, he is well acquainted with the Complainant.
74. Moreover, when the Accused alleges that, the Complainant and Ramanappa have colluded with each other, he could plead so, only if he knew the Complainant. Therefore the defence of the Accused that he is not at all acquainted with the Complainant as claimed by him is not a probable one and there are serious contradictions in his defence version.
75. Likewise, it could also be seen that, it is also suggested to the Complainant that, his brother was also working in the firm of the Accused and that his brother was closely acquainted with the said Ramanappa. Though the Complainant has pleaded ignorance to the suggestion, this suggestion put to the Complainant also indicates that, the Accused has the knowledge that, the brother of the 29 C.C.No.30592/14 J Complainant was closely acquainted with the said Ramanappa. This could be possible only when the Complainant was acquainted to the Accused.
76. Therefore viewed from any angle, the defence of the Accused suffers from serious improbabilities and contradictions. However, considering the fact that, the Complainant has miserably failed to plead and prove his case and he has filed the present complaint in it's proper form as per law, any number of inconsistencies and contradictions in the evidence of the Accused cannot be an advantageous fact to the Complainant.
77. Now coming to the defence of the Accused that, there is no service of the legal notice on him is concerned, according to him, he is a permanent resident of Madikeri and as such there was no service of the legal notice on him.
78. In this regard, it is pertinent to note that, the Accused has not denied the correctness of his address shown in the complaint as well as in the legal notice, except during the stage of his chief evidence, wherein he has claimed that, it is only after the NBW that came to be issued by this court to him and when the police visited his 30 C.C.No.30592/14 J house that he came to know that, the Complainant has misused his cheques and filed this case against him.
79. However, it is pertinent to note that, though the Accused claims that, there is no service of the legal notice on him, it is not his defence that, his addresses shown in this case are wrong addresses or that there was no possibility for the service of the legal notice to him in the said address.
80. Moreover, when the Accused claims that, he came to know about the present case only through warrant that was issued against him by this court, admittedly, the said warrant had also been caused to his same address, which is shown in the cause title of the complaint as well as in the legal notice by the Complainant. This is sufficient to hold that, there is a deemed service of the legal notice on the Accused. Even otherwise, when the Complainant has produced the documentary evidence as per Ex.P.12, which is addressed to the first address shown in the legal notice at Ex.P.9, there is no denial of the fact that, the same has been duly served upon him. Therefore the technical defence on the part of the Accused to the effect that, there is no service of the legal notice on him is also not a tenable one.
31 C.C.No.30592/14 J81. Therefore, the appreciation of the evidence on record goes to show that, though the entire defence version as putforth by the Accused is an improbable one, the fact is that, on the technical ground of the Complainant not having arrayed the firm as an Accused in this case, the case of the Complainant is liable to fail. Moreover the Complainant has also miserably failed to establish his alleged loan transaction with the Accused and the alleged liability of the Accused under the subject cheque in his favor. Moreover the case of the Complainant also suffers from serious contradictions, omissions and improvements and as such both on technicality as well as on merits, his case is bound to fail. Accordingly, I proceed to pass the following:-
ORDER By exercising the power-
conferred u/Sec.255(1) of Cr.P.C. the Accused is hereby acquitted of the offence punishable u/Sec.138 of Negotiable Instruments Act.
His bail bond and surety bond stands discharged.
(Dictated to the Stenographer, print out taken by her, verified, corrected and then pronounced by me in the open Court on this the 18th day of September, 2018).
(SARASWATHI.K.N), XVI ACMM., Bengaluru City.
32 C.C.No.30592/14 JANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
PW.1 : Sri.P.V. Suresh;
2. List of documents exhibited on behalf of the
Complainant:-
Ex.P1 to P4 : Original Cheques;
Ex.P.1(a) to : Signatures of the Accused;
P4(a)
Ex.P5 to P8 : Bank Memos;
Ex.P9 : Office copy of the Legal Notice;
Ex.P10 & P11 : Postal Receipts;
Ex.P12 : Postal Acknowledgment;
Ex.P13 and : The certified copies of the Bank Pass
P14 Books;
Ex.P15 & P16 : The certified copies of the I.T. Returns
for the Assessment years 2012-13,
2013-14.
3. List of witness/s examined on behalf of the Accused:-
D.W.1 : Sri.U.S.Changappa;
4. List of documents exhibited on behalf of the Accused:-
Ex.D1 : The Notarised copy of the Deed of Admission of Partnership Firm dated:
5.4.2014;
Ex.D2 : The Certified copy of the complaint dated: 20.9.2014.
(SARASWATHI.K.N), XVI ACMM, Bengaluru City.
33 C.C.No.30592/14 J18.9.2018 Judgment pronounced in the open court vide separate order ORDER By exercising the power-
conferred u/Sec. 255(1) of Cr.P.C.
the Accused is hereby acquitted of the offence punishable u/s 138 of Negotiable Instruments Act.
His bail bond and surety bond stands discharged.
XVI ACMM, B'luru.