Bangalore District Court
M/S.Vishnu Business Solutions vs M/S.Devendra Infocom on 28 April, 2016
IN THE COURT OF THE XXV ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE
Dated this the 28th day of April, 2016.
Present: Sri. Shashikant B.Bhavikatti B.Sc. L.L.B.,(Spl).
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No.16024/2014
Complainant: M/s.Vishnu Business Solutions.
(A PARTNERSHIP FIRM)
Having its Office at
Brigade MM Complex
K,.R.Road, Yediyur,
Bangalore.
Rep.by its Partner
Mr.S.S.Santhosh Kumar.
(By Sri.S.Manju - Advocate )
- Vs -
Accused: M/s.Devendra Infocom
(A Proprietary concern)
Rep.by its Proprietor,
Mr.Santhosh Jain
Having its office at
Gandhibazar main road,
Basavanagudi,
Bangalore.
(By Sri.S.Nagaraja - Advocate )
Offence complained of: U/s. 138 of Negotiable Instruments Act.
Plea of accused: Pleaded not guilty.
Final Order: Accused is Acquitted.
Date of order: 28-04-2016.
2 C.C.No. 16024/2014
JUDGMENT UNDER SEC.355 OF CR.PC
The complainant filed this complaint under Sec.200 of Cr.P.C.,
against the accused for the offence punishable under Sec.138 of
Negotiable Instruments Act.(For short N I Act)
2. The case of prosecution is as under :
The complainant knew accused for over considerable period of time
having established business relationship in the field of Mobile telephones
and allied activities. The complainant are renowned suppliers of mobile
telephones and distributors of Sansui mobiles and the accused offered to
collaborate with the complainant and also assured to purchase mobile
phones as a distributor. The entire business between the complainant
and the accused was on credit basis wherein the accused used to
purchase mobile phone from the complainant on bulk basis under credit
note which was paid at the end of 21 days from the date of invoice.
During course of business transaction, the accused fell in due for a sum
of Rs.1,36,072/- and towards discharge of said liability, the accused
issued a cheque bearing No.348175 dt.16.08.2013 for Rs.1,36,072/-
drawn on M/s.Syndicate Bank, DVG Road, Bangalore. On presentation
of said cheque for encashment, the same returned unpaid for the reason
3 C.C.No. 16024/2014
"Funds Insufficient" vide endorsement dt.19.08.2013. Hence, the
complainant got issued a legal notice dated 30.08.2013 which was duly
served on the accused. Inspite of service of notice, the accused failed to
make payment of cheque amount. Hence, the complaint.
3. In pursuance of the process issued, the accused appeared
before the court and he is on bail.
4. Copy of the prosecution papers are furnished to the accused as
required under law.
5. Plea under Sec.138 N.I.Act is framed , read over and explained
to the accused in vernacular. The accused pleaded not guilty and
claimed the trial.
6. One of the Partners of complainant is examined as P.W.1
and got marked the documents at Ex.P.1 to Ex.P.8
7. The incriminating circumstances found in the case of prosecution
against the accused is read over and explained to the accused in
vernacular. The accused denied the same. The accused is examined as
DW1 and got marked documents at Ex.D.1 to Ex.D.3 .
8. Heard arguments and perused the material on record.
4 C.C.No. 16024/2014
Whether the complainant proves that the
accused issued cheque in favour of the
complainant and the same was
dishonored and even after sending
demand notice accused failed to pay the
cheque amount and thereby guilty of the
offence punishable under Section 138 of
N.I.Act?
is the point for determination.
REASONS
9. The date of cheque is 16.08.2013. The date of presentation of
cheque is 19.08.2013. The date of return of cheque for "Insufficient Funds"
is 20.08.2013. The date of Statutory notice is 30.08.2013. The date of
reply is18.09.2013. The date of complaint is 05.11.2013.
10. It is defence of accused that alleged cheque was given as
blank security cheque wrongfully used by the complainant; complainant
made breach of promise to take back unsold mobile units and to arrange
for repair or replacement of the mobile units against DOA certificate which
are liability of complainant while taking over M/s.Anu Distributors which is
earlier super distributor of accused; complainant obtained present blank
signed cheque as a security from the accused after handing over old
cheque which was lying with M/s.Anu Distributors; by making breach of
promise the complainant failed to take back said items and adjust the
account of accused; inspite of latter's E-mail intimation , the cheque is
5 C.C.No. 16024/2014
presented behind the back of accused without consent; the complainant
was bound to take back the goods which are against DOA Certificate and
warranty/ normal trade practice; the accused is not liable to pay any
amount much less the cheque amount to the complainant .
11. PW 1 deposes that he is one of the partners of the complainant
firm, namely, partnership firm authorized by other partners to proceed
with this case. Ex.P.8 is alleged Deed of Partnership which shows that
there are five partners of the complainant including PW 1. In cross
examination, it is version of PW 1 that the austhority given by other
partners is oral authority and there is no written authority by other
partners. The accused in cross examination of PW1 denies that other
partners had even given oral authority in favour of PW1. At the same
time PW 1 states that he knows the facts and circumstances of the case,
so also that he is competent to give evidence. PW 1 further denies in
cross examination that neither he had any authority to issue statutory
notice nor to file this case and proceed with the same. It is oral
statement of PW 1 that other partners have authorized him to proceed
with this case. In view of denial by the accused, there is onus upon PW 1
to show that there was oral authority given by other partners to proceed
with the case. At the same time Ex.P.8 shows that the share of all the
6 C.C.No. 16024/2014
partners is equal, which is admitted by PW 1 in cross examination. This
is one of the circumstances to be considered at later stage.
12. PW 1 deposes that there is credit transaction between the
complainant and the accused under which the accused used to purchase
mobile phones. The accused kept paying amount in installments against
issuance of proper acknowledgements by the complainant. It is further
evidence of PW 1 that in continuation of business transaction, the
accused fell due to said sum shown in the cheque which is the amount
outstanding after adjustment of earlier payment made by the accused.
On the other hand, DW 1 deposes that one Anu Distributors used to
conduct transaction with the accused prior to the complainant , in 2010.
Subsequently, Sansui company appointed the complainant as main
dealer of mobiles and the accused came to know about the complainant
through Anu Distributors. Sansui company intimated the accused of
complainant being its main distributors and thereafter, the accused
started business with the complainant in 2012. During the transaction ,
the complainant used to exchange damaged mobiles which went on well
initially. 4 - 5 months. Thereafter, the complainant refused to exchange
damaged mobiles and thereafter after 2 month, the complainant
informed the accused that they had stopped dealership pertaining to
7 C.C.No. 16024/2014
Sansui Company. When asked to exchange the damaged mobiles some
of which were outcome of the transaction with Anu Distributors, the
complainant refused to exchange the damaged mobiles and asked the
accused to make payment. It is evidence of DW 1 that the cheque
involved in this case is the one handed over by the accused to Anu
Distributors during commencement of transaction with them.
13. As regards taking over of complainant of dealership of
Sansui company from one Anu Distributors, nothing is extracted from the
mouth of PW 1in support of said defence. On the other hand DW1 in
cross examination explains that transaction with M/s.Anu Distributor
started in 2011 though there is no separate agreement for it. According
to DW 1 around Rs.45,00,000/- turn over used to take place every month
between himself and M/s.Anu Distributors. DW1 sticks up to his stand
that the transaction with Sansui company was through Anu Distributors
and there was no direct transaction with Sansui company. According to
him one Arun- Sales Executive used to transact with him on behalf of Anu
Distributors. In 2013, Sansui removed Anu Distributors and replaced them
with the complainant . At the same time he admits the contents of reply
notice - Ex.P.6 that the complainant took over M/s. Anu Distributors with
all assets and liabilities , so also warranties before continuing transaction
8 C.C.No. 16024/2014
with the accused as distributors; the complainant while so taking over
got replaced old cheque of the accused that was lying with Anu
Distributors with a new fresh and blank singed cheque as security. He
also admits Ex.P.1 which is the ledger extract issued by accused. If
Ex.P.1 which is admitted by DW1 in cross examination is carefully seen, it
shows the closing balance with Credit Note as on 13.08.2013 to be
Rs.1,36,072/- which equals the amount shown in the cheque. Similarly
PW 1 in cross examination admits Ex.D1 to D.3 to be the documents
issued by the complainant . At the same time PW 1 denies the suggestion
that Ex.P.1 is created by the complainant himself falsely. It is pertinent to
note that Ex.P.1 is admitted by DW1 to have been issued by the accused
himself . In the circumstances contents of Ex.P.1 are to be more
important to show closing balance as against Ex.D.1 to Ex.D3. It is
pertinent to note that in proceedings of this nature, this court cannot sit
upon calculating statement of account bit by bit , but, the court has to see
whether a true fact asserted by the party is in existence with cogent and
convincing evidence. In this case DW1 himself admits Ex.P.1 which
shows the cheque amount to be the closing balance. At the same time, in
reply issued by the accused, it is defence of accused that the present
cheque is one which is obtained by the complainant in the form of blank,
signed cheque as security in exchange to an old cheque which came to
9 C.C.No. 16024/2014
custody of complainant from Anu Distributors who had obtained the old
cheque from the accused during their earlier transaction. On the other
hand, DW1 is not able to extract any thing from the mouth of PW 1 in
support of his defence. He himself explains that earlier cheque to Anu
Distributors is given in the year 2011 while his business with the
complainant started in 2013. In May, 2013, DW1 intimated the
complainant for exchange of damaged goods. Though it is say of DW 1
that the value of damaged goods is about Rs.1,36,000/-, there is no
material placed by the accused for perusal. PW 1 in cross examination
volunteers that the complainant had repaired and returned damaged
mobiles to the accused which were issued by the complainant to the
accused. This fact is not denied by accused in cross examination of
PW1. Contrary to his defence, the accused makes suggestion in cross
examination of PW 1 that present cheque was issued as empty cheque
for security. There is no suggestion made by the accused to PW1 that
the present cheque was in exchange of old cheque which allegedly came
to custory of complainant from Anu Distributors. On the other hand,
DW1 in cross examination admits Ex.P.2, the cheque and ExP.2(a) the
signature that it belongs to himself. There is no material placed by the
accused to show that Anu Distributors is taken over by the complainant
and that the complainant continued same business with the accused. At
10 C.C.No. 16024/2014
the same time DW1 himself admits Ex.P.1 in cross examination. Even no
material is placed by the accused to show he had requested Anu
Distributors orally to return the old cheque given by him to Anu
Distributors. At the same time DW1 denies that Anu Distributors was
purposely brought in between to avoid his liability. From the material on
record it is clear that the accused admits issuance of alleged cheque, so
also his signature on the cheque. Ex.P.1 shows liability of accused as on
13.08.2013 . This document is earlier to alleged cheque. Moreover,
closing balance in Ex.P.1 equals the amount shown in the cheque. Since
the accused himself admits Ex.P.1 , it is nothing but liability as on the
date of cheque. To this extent, there is material to accept the case of
complainant since the accused failed to show probable defence that the
complainant had not honored DOA Claim and Credit Notes of accused.
14. Whatever be the circumstances herein established by
complainant against the accused, there is further burden upon the
complainant to show that PW 1 had authority to file this case, so also to
proceed with the cause of action. If evidence on record is carefully
scrutinized, though there are five partners of complainant firm as per
Ex.P.8, it is say of PW1 that he had oral authority given by them. In
other words , PW 1 himself admits that there is no written authority given
11 C.C.No. 16024/2014
by the other partners to proceed with the case. In cross examination of
PW 1, the accused denies that other partners had orally authorized PW1.
At the same time PW 1 states that he knows the facts and circumstances
of the case and that he is competent to give evidence He denies that
neither he had any authority to issue statutory notice nor to file this case
and proceed with. This burden which is upon the witness-PW 1 should
be discharged by adducing cogent and convincing material showing that
PW 1 had got authority to proceed with the case. It is pertinent to note
that all the partners have equal share as per Ex.P.8 and the same is
admitted by Pw1 himself in cross examination. In such circumstances ,
there must be authority for PW 1 to proceed with the case having given by
the complainant. Ultimately, said authority is collective authority to be
given by all the partners authorizing PW 1 as their representative.
However, neither there is written material to show such authority nor any
evidence adduced by PW1 to show that there was oral authority given to
him by the complainant with consent of all the partners. In such
circumstances, one has to hold that in absence of any material to show
such authority PW1 does not have any power to proceed with this case
including issuance of statutory notice to the accused. Thus the case
suffers from inherent defect on the face of it. PW 1 has not taken any
steps to cure the defect that is on record. In such circumstances, it has to
12 C.C.No. 16024/2014
be held that evidence adduced by PW 1 cannot be accepted for simple
reason that it is without authority of other partners. Ultimately, inspite of
failure of accused to put forth his defence, evidence of PW 1 cannot be
accepted . Ultimately, it is to be held that the accused is not guilty of
alleged offence. Accordingly , I answer point for determination in
'Negative"..
For the aforesaid reasons, I proceed to pass the following :
ORDER
Acting under Section 255 (1) of Cr.P.C, accused is hereby Acquitted of offence punishable under Section 138 of Negotiable Instruments Act 1881.
The bail bond stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected and signed and then pronounced by me in the open court on this the 28th day of April , 2016).
(Shashikant B.Bhavikatti) XXV A.C.M.M., BANGALORE.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : S.S.Santhosh Kumar.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Ledger Extract.
Ex.P.2 : Cheque.
Ex.P.3 : Bank Endorsements.
13 C.C.No. 16024/2014
Ex.P.4 : Office Copy of Legal Notice.
Ex.P.5 : Postal receipt.
Ex.P.6 : Reply.
Ex.P.7 : Acknowledgement of Registration of
Firm
Ex.P.8 : Copy of Deed of Partnership.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:- -
DW1 : Santhosh.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D1 : Debit Note. Ex.D2 : Credit Note. Ex.D.3 : Purchase Return Note.
(Shashikant B.Bhavikatti) XXV A.C.M.M., BANGALORE.14 C.C.No. 16024/2014
28.04.2016 For judgment:
ORDER (Judgment pronounced in open court vide separate sheets) Acting under Section 255 (1) of Cr.P.C, accused is hereby Acquitted of offence punishable under Section 138 of Negotiable Instruments Act 1881.
The bail bond stands cancelled.
XXV A.C.M.M., BANGALORE.