Bangalore District Court
M/S Dollar Industries Limited vs Sri.Badre Baburao on 16 April, 2022
BEFORE THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT
CLAIMS TRIBUNAL & A.C.M.M.
(SCCH26) AT BENGALURU
DATED THIS THE 16th APRIL 2022
PRESENT:SRI.R.MAHESHA B.A.L LLB,
XXIV ADDL. SCJ & ACMM
& MEMBER MACT
BENGALURU.
1. Sl. No. of the Case CC.No.3907 OF 2019
2. The date of
commencement of 11072019
evidence
3. The date of closing 08032022
evidence
4. Name of the
Complainant M/s Dollar Industries Limited
3rd floor, 1/11, 1/13, Purvi plaza,
Next to Super Talkies
Bashyam road, Cottonpet,
Bengaluru560 053
Represented by its Manager and
authorised to sign
Sri.Kuldeep Kothari
(Sri.B.V.M..Advocate)
5. Name of the
Accused Sri.Badre baburao
Prop: Sri.Manjunath Garments
Hari Shiva Nilaya
H.No.9287/1
Near Ram Mandir,
Shashbazar
Gulbarga585 101.
(By Sri.H.M.M.Advocate)
7. The offence
complained of U/s.138 of the Negotiable
Instruments Act
8. Opinion of the judge Accused found not guilty
JUDGMENT
The complainant filed this complaint Under Section 200 of Cr.P.C against the accused alleging that the accused has committed the offence punishable Under Sec.138 of the Negotiable Instruments Act, 1881. (In short for N.I.Act).
2. The brief facts of the complainant case is as under:
The complainant is a manufacturer of hosiery goods and supplies. The accused had purchased the hosiery goods from the complainant and accused is a regular customer of the complainant. That the accused purchased the hosiery goods from the complainant, the accused is balance to the complainant a sum of Rs.11,00,703/, the accused issued a post dated four cheques in favour of the complainant to the above said amount.
(1)cheque bearing No.000483 Rs.79,700/dt.712019 (2) cheque bearing No.000482 Rs.74,791/dt.2812019 (3) cheque bearing No.000481 Rs.46,268/ dt.2112019 (4)cheque bearing No.000484 Rs.1,27,027/dt.1412019. That the complainant presented the said cheques to the bank for encashment, but the said cheques dishonoured with remarks Funds Insufficient as per endorsement dt.122019. That the complainant had caused a legal notice dated 132019 to the accused for dishonour of the said cheque. The accused has failed to comply with the notice and failed to make the payment to the complainant. Hence filed this complaint.
3. After perusal of the material available on record and on primafacie material grounds, this Court took cognizance and thereafter sworn statement was recorded and summons was issued to Accused. After service of summons, the accused appeared through his counsel.
4. One Kuldeep KothariManager of the complainant company himself examined as PW.1 and got marked Ex.P.1 to Ex.P15 documents. The accused himself got examined as DW1 and got marked ExD1 to 7.
5. Heard arguments of both side and perused the materials.
6. Upon perusal of the material placed on record, the following points arise for my consideration: POINTS
1. Whether the complainant proves that the accused had issued cheques in question in discharge of the legally recoverable debt as contended by him?
2. Whether complainant proves that the accused has committed the offence punishable under Sec.138 of NI Act?
3. Whether the complainant is entitled for the relief as prayed in the complaint?
4. What order?
7. My answer to the above points is as follows : Point No.1 to 3 :In the Negative Point No.4 : As per final order for the following : REASONS
8. POINT NO.1 to 3 : Since these points are interlinked and to avoid repetition they are taken together for common discussion. Before peeping the disputed facts it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the complainant company is a private limited company, its represented before this court one Kuldeep Kothari Manager and authorised signatory, it is a manufacture of Hosiery goods. The accused had Manjunatha garments at Harishiva Nilaya, Gulbarga. The accused is proprietor of Sri.Manjunatha garments. The accused is one of the customer of complainant company. The accused had purchased the Hosiery goods from the complainant in the year 2017. The accused had applied RKG dealership from complainant company in the year 2019. The complainant company produced invoices of the year 2017. The cheque in question alleged by the complainant same have been issued in the year 2019 for the payment of outstanding due which is pertaining to 2017. The cheques in question and bear signature belongs to accused, the accused contended the cheque in question and other 7 signed cheques had been issued to complainant for the purpose of getting RKG products distributors from the complainant in the year 2019. There is no acknowledgment for receiving goods from complainant by the accused. The complainant alleged in the complaint they have supplied hosiery goods worth of Rs.11 lakhs. The present case filed against accused for recovery of cheques amount a total sum of Rs.3,27,796/, actual invoice price Rs.3,58,778/. The cheque in questions filled by PW1 and presented for collection of payment through his banker and same have been returned as unpaid with shara Funds Insufficient. He issued legal notice and calling accused to pay cheques amount within 15 days from receipt of the statutory notice The said notice duly served on the accused. He did not opt to reply to statutory notice. Therefore this complaint filed against accused by the complainant company.
9. With above admitted facts, now the facts in issue are analyzed, as already stated the accused has denied the entire case of the complainant company as to commission of the offence punishable under section 138 of NI Act. While recording their plea for the said offence and also accused has denied the incriminating circumstance found in the evidence of the complainant. At the time of recording of his statement under section 313 of Cr.P.C., The accused mainly denied the claim of complainant company, on going through the crossexamination of PW1, it is clear that in addition to the total denial of the case of the complainant company, the accused has specifically contended that the accused had been doing cloth business since 26 years. The accused had transaction with complainant company from 2007 to 2017. He did not done business with complainant after 2017. The accused used to ordered materials over phone they sending materials to his shop, after 90 days receiving materials from complainant company he made payment to the received materials. The accused had handed over 11 signed blank cheques to the PW1 in the year 2019 for the purpose of getting RKG products distributorship. PW1 did not gave RKG products distributorship to accused. The accused personally met PW1 in his office and discussed about status of distributorship, the accused had paid Rs.90,000/ to PW1 by way of cash. The accused had enquired about presentation of his signed cheques for collection of amount in turn PW1 stated due to mistake of fact they presented and assured to give distributorship to accused. There is a record in CCTV footage for receiving Rs.90,000/ cash from accused by PW1. The accused had no due towards complainant company and PW1. The PW1 is liable to payback Rs.90,000/ which is received from accused by way of cash, the accused has not been received any notice from complainant company. Therefore, on the above objections the accused seeking the present complaint is not maintainable and liable to be dismissed in limine.
10. It is needless to say that the proceeding under section 138 of NI Act is an exception to the general principle that the accused is presumed to be innocent until the guilty is proved beyond all reasonable doubt. In the proceedings initiated under section 138 of NI Act, proof beyond all reasonable doubt is subjected to presumption envisaged under section 139 of NI Act. Once the requirement of Sec.138 of NI Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged under Sec.139 of NI Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of NI Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa V/s Mohan reported in AIR 2010 SC (1898) by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishnajanardhana Bhat V/s Dattareya G. Hegde reported in AIR 2008 SC (1325) it was held that "existence of legally recoverable debt or liability is a matter of presumption under section 139 of NI Act". The Hon'ble Apex Court disapproved the principle laid down in Krishnajanardhana Bhat case that "initial burden of proving existence of the liability lies upon the complainant". In the case of Sri B.H. Lakshmi Naryana V/s Smt. Girijamma reported in 2010(4) KCCR 2637 it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further the Hon'ble Apex Court in Crl. Appeal No.803/2018 Krishna Rao V/s Shankare Gowda reported in 2018(7) SCJ 300 reiterated the above principle further as provided under Sec.118 it is to be presumed that the cheque in question was issued for consideration on the date found therein.
11. In the light of the rival contention of the parties at the outset it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of NI Act as contended. In order to prove the case of the complainant company Manager and authorised signatory one Kuldeep Kothari examined as PW1 and he reiterated the complaint averments in his examinationinchief by way of affidavit and got documents marked as ExP1 to 15. On the other hand, accused himself examined as DW1 and he produced ExD1 to 7. In addition to that the complainant has produced ExP1original cheque dt.14 12019 issued by the accused in favour of complainant company for a sum of Rs.1,27,027/. ExP2 bank endorsement dt.122019, the cheque in question i.e., ExP1 returned for the reasons of Funds Insufficient. ExP3original cheque dt.2112019 issued by the accused in favour of complainant company for a sum of Rs.46,268/. ExP4 bank endorsement dt.122019, the cheque in question i.e., ExP3 returned for the reasons of Funds Insufficient. ExP5original cheque dt.2812019 issued by the accused in favour of complainant company for a sum of Rs.74,791/. ExP6 bank endorsement dt.122019, the cheque in question i.e., ExP5 returned for the reasons of Funds Insufficient. ExP7original cheque dt.712019 issued by the accused in favour of complainant company for a sum of Rs.79,700/. ExP8 bank endorsement dt.122019, the cheque in question i.e., ExP7 returned for the reasons of Funds Insufficient. ExP9board of directors resolutions dt.1222019. The complainant company resolved and appoint one Kuldeep Kothari for representing complainant company before court of law against this accused. ExP10 legal notice dt.132019 issued on behalf of Kuldeep Kothari to accused. ExP11 postal acknowledgment. ExP12 invoice dated 552017 materials worth of Rs.79,700/ (including tax) supplied to Sri.Manjunatha garments, Gulbarga. ExP13 invoice dated 952017 materials worth of Rs.74,795/ (including tax) supplied to Sri.Manjunatha garments, Gulbarga. ExP14 invoice dated 1052017 materials worth of Rs.1,27,027/ (including tax) supplied to Sri.Manjunatha garments, Gulbarga. ExP15 invoice dated 196 2017 materials worth of Rs.46,268/ (including tax) supplied to Sri.Manjunatha garments, Gulbarga.
12. In the light of rival contention of the parties, at the outset it is to be determined as to whether the complainant had complied with all the requirements of Section 138 of NI Act as contended. In order to prove the case, PW1 examined in his examination chief reiterated the complaint averments and PW1 at precognizance stage, reiterated complainant averments in his sworn statement by way of affidavit which itself is treated as examination in chief in view of the decision of Hon'ble Apex court reported in 2014(A) SCC 590 Indian Bank Association and others Vs Union of India and others (WP civil No.18/2013). On perusal of these documents, it is clear that the complainant had presented the cheque for encashment within its validity, got issued statutory notice in time and presented the complaint within the prescribed period. So it is clear that, the complainant company complied statutory requirements of presenting cheque, issuing notice and presenting complaint well in time.
13. On conjoint reading of the entire oral and documentary evidence, they remains no doubt that the complainant company had complied with all the requirements of the Sec.138 of NI Act. This being the fact, as discussed earlier in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available under section 138 of NI Act is required to be drawn on some presume that the accused had issued the cheques as per Ex.P1 to 8 towards discharge of legally recoverable debt. It is also presumed that the cheque was issued for consideration on the date as mentioned therein.
14. It is well settled principle of law through catena of decisions that though the statutory presumptions available under Sec.118 and 139 of NI Act are mandatory in nature, they are the rebuttal one. It is needless to say that when the complainant proves the requirement of Sec.138 of NI Act the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the presumptions with all preponderance of probability with clear, cogent and convincing evidence though, not beyond all reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts on the shoulder of the complainant. It is also settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also set in rest that in order to rebut the presumption it is not imperative on the part of the accused to step into the witness box and he may discharge his burden on the basis of the Acts elicited in the crossexamination of the complainant. It is also equally true that, if the accused places such evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decisions of the Hon'ble Apex Court reported in 2006(3) SCC (CRL) 30 Tamilnadu Marcantile Bank Limited V/s M/s Subbaiah Gas Agency and others. ILR 2009 (2) 1633 Kumar Exports V/s Sharma Carpets, AIR 2008 SCC 1325 Krishnajanardhana V/s Dattareya G. Hegde, 2013 SCR (SAR) CRI 373 Vijay V/s Lakshman & another and AIR 2010 SC 1898 Rangappa V/s Mohan and Crl. Appeal No.230 & 231/2019 Bir Singh V/s Mukesh Kumar. Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
15. On perusal of oral testimony of PW1, he sworn in the chief affidavit that he was Manager and authorised signatory of complainant company. The accused is the customer of complainant company. The complainant is manufacturer of Hosiery goods and suppliers. The accused purchased the Hosiery goods from the complainant. The accused is a regular customer of the complainant. The accused is balance to the complainant a sum of Rs.11,00,703/. The accused issued cheques in question for partial payment of outstanding due. On presentation got dishonoured, even issued written notice, they not complied and not paid. He has been subjected cross examination at length by the accused. It is elicited during course of cross examination that PW1 had been working in complainant company as a Manager since 15 years back, the present accused seen by PW1 in the year 2009, the present accused came to his contact for appointing distributor in Gulbarga locality. The accused had uninterrupted transactions with complainant from 2019 to 2015. It is clearly elicited during course of cross examination that the complainant company supplied materials in the year 2017. As per ExP10 they supplied materials worth of Rs.11,00,703/. Further it is clearly and categorically admitted through PW1 that he did not produced before this court to show the complainant company had supplied materials worth of Rs.11,00,703/ for accused. ExP10 issued for demanding accused for making payment of Rs.3,27,000/. The cheques in question pertaining to the year 2019. Further PW1 contended during course of cross examination that the accused had issued cheques in question for materials supplied by them as receipts to the materials received by the accused. Further it is elicited during course of cross examination that the complainant company introduced another new product by name RKG products in the year 2009. PW1 clearly and categorically denied the suggestion of accused that the accused had paid Rs.25 lakhs to PW1 for issuing distributorship for the product of RKG products which is introduced by complainant company, The PW1 got 12 signed cheques of accused for security purpose. The PW1 still had 8 signed cheques of accused. Further it is clearly and categorically admitted by PW1 that the writings on disputed cheques belongs to PW1 and in ExP10, complaint and sworn statement they not stated on which date, month and year the complainant supplied goods to accused. ExP12 to 15 are pertaining to year of 2017. ExP12 to 15 total value was Rs.3,58,778/. It is further admitted by PW1 that now this case filed and claimed by the complainant on the basis of ExP12 to 15. Further it is clearly and categorically admitted by PW1 that ExP1, 3, 5, 7 were issued and handed over to PW1 possession in the year 2017. Further it is admitted by PW1 that he had not issued demand notice for disputed cheque amount in the year 2017. Further PW1 denied the suggestion of accused that the accused had cleared entire outstanding due towards complainant in the year 2017. Further it is elicited during course of cross examination that there is no matching of amount of cheque amount and ExP12 to 15. The accused during course of cross examination success in confront 7 documents through PW1 as ExD1 to 7. The PW1 clearly and categorically denied other formal suggestions putforth by accused.
16. In order to prove his defence the accused himself orally examined before this court as DW1, he reiterated again in his chief his defence, the accused mainly deposed before this court that the accused had been doing cloth business since 26 years. The accused had transaction with complainant company from 2007 to 2017. He did not done business with complainant after 2017. The accused used to ordered materials over phone they sending materials to his shop, after 90 days receiving materials from complainant company he made payment to the received materials. The accused had handed over 11 signed blank cheques to the PW1 in the year 2019 for the purpose of getting RKG products distributorship. PW1 did not gave RKG products distributorship to accused. The accused personally met PW1 in his office and discussed about status of distributorship, the accused had paid Rs.90,000/ to PW1 by way of cash. The accused had enquired about presentation of his signed cheques for collection of amount in turn PW1 stated due to mistake of fact they presented and assured to give distributorship to accused. There is a record in CCTV footage for receiving Rs.90,000/ cash from accused by PW1. The accused had no due towards complainant company and PW1. The PW1 is liable to payback Rs.90,000/ which is received from accused by way of cash, the accused has not been received any notice from complainant company. He has been subjected cross examination by complainant. During course of cross examination, accused admitted that as per exP12 and 13, he use to purchase materials from complainant. As per ExD1, payment should be made through account payee cheque or DD only and he denied the suggestion of complainant. The accused had received materials worth of Rs.11 lakhs from complainant. Further he denied notice has been issued by the complainant company duly served on accused. He expressed ignorance about ExP10 and 11 and it is clearly admitted through the mouth of PW1 that he did not made any enquiry regarding ExP10 and 11 in the postal office. Further it is admitted and contended by DW1 that ExP12 to 15 and ExD1 to 12 are materials purchased invoice from accused by the complainant company and accused specifically deposed during course of cross examination that he cleared entire invoice amount in the year 2017. Further it is elicited from the mouth of DW1 that the accused falsely stated he had paid Rs.90,000/ to PW1 by way of cash in his office and same had been recorded in CCTV. There is no CCTV facility in the office of PW1. Further DW1 denied the suggestion of complainant that the accused had received materials worth of Rs.7,85,759/ through Ketaki Sangameshwara on 14102017 and accused had gave acknowledgment for receiving the same. Further it is elicited during course of cross examination that after dishonour of cheque, he did not took any legal action against complainant. Further DW1 denied other suggestions of complainant like the accused still had due of Rs.11 lakhs towards complainant. In order to cheat complainant company, the accused deposed false evidence before this court. Further accused falsely deposed before this court the complainant company got 11 signed cheques of accused for assuring giving distributorship of RKG products.
17. On careful scrutinize, oral evidence of rival parties and documents, it depicts that the accused and complainant company having business transactions since 2007 to 2017. The cheque in questions issued in the year 2017 to the possession of complainant. The present case filed for claiming for recovery of disputed cheque amount alleged to be issued in the year 2019. The invoices produced by complainant belongs to year 2017. PW1 clearly admitted during course of cross examination that ರರ .11,00,703 ಗರಡಡಡ ಗಳನನ ನ ಆರರರಪಗ ಕಳನಹಸರನವ ಬಗಗ invoice ನ ಕರಟಟಲಲ ಎಎದರ ಸರ. ರರ 3,27,000 ಕಕ ಆರರರಪ ವವದತ ಚಕನ ಗಳನನ ಕ ಕರಟಟದರ ಎಎದನ ಈ ದರರನ ದಖಲನ ಮಡದವ. ಉಳದ ಮತತಕಕ ನಪ 10 ರಲ ಕರಳಲಲ ಎಎದರ ಸರ ನ ಕರಟಟಲಲ ಮತನತ ಅದಕಕ ಸಎಬಎಧಸದ ದಖಲಗಳನನ ಎಎದರ ಸರ . ನಪ 1 ರಎದ 7, 2019 ಕಕ ಸಎಬಎಧಸದ ಚಕನ ಕ ಮತನತ ದಖಲಗಳನ ಎಎದರ ಸರ .
17. Further it is elicited clear admission from mouth of PW1 that ನಪ 12 ರಎದ 15, 2015 ಕಕ ಸಎಬಎಧಸದ invoice ಗಳನ ಎಎದರ ಸರ . ನಪ 12 ರಎದ 15 ರ ಒಟನ ಟ ಮತತ ರರ.3,58,778 ಎಎದರ ಸರ . ವವದತ ಚಕಕನ ನ ನಪ 12 ರಎದ 15 ಮತನತ ಪತ ತ ದನಎಕ 14102017 ಮರಲ ಇರನವ ಮತತವನನ ದಖಲಗಳ ಮರಲ ನಮಗ ಹಣ ಬರಬರಕಎದನ claim ಮಡನತತದನ. ನಪ 1,3,5,7 ಚಕನ ಕ ಗಳನನ ನ ಆರರರಪ ನಮಮ ಸಸಧರನಕಕ 2017 ಕಕ ಕರಟಟದರ ಎಎದರ ಸರ . 2017 ರಲ ಚಕಕನ ಹಣ ವಪಸಕರಡಬರಕಎದನ ಲಖತ ನರರಟರಸಕರಟಟಲಲ . ನಪ 10 ರಲ ಆರರರಪಗ ಯವಗ materials ಗಳನನ ನ supply ಮಡದವ ಎಎದನ ಅದರಲ ನಮರದಸಲಲ ಎಎದರ ಸರ .
18. Further it is pertinent to mention the case of the complainant and answers elicited during course of cross examination. The case of the complainant that the complainant manufacturer and supplier of hosiery goods. The accused customer of complainant and he had due a sum of Rs.7,00,703/. The accused issued four post dated cheques in favour of complainant to the above said amount. The total value of the disputed cheques Rs.3,27,786/. But as per para 3 of complaint, complainant stated the accused issued cheques in question for the payment of Rs.11,00,703/. Further it is elicited during course of cross examination that the hand written on ExP1, 3, 5 and 7 are handwritings of PW1. It is clearly admitted in page 7 at 14 and 15 line that ಕ ಗಳ ಮರಲ ಬರದರನವ ಕಕ ಬರಹ ನನನದನ ಎಎದರ ಸರ . ನಪ ವವದತ ಚಕನ 10, ಪಯರದನ ಮತನತ ಪಪಮಣರಕಕತ ಹರಳಕಯಲ ಯವ ದನಎಕ , ತಎಗಳನ, ನ supply ಮಡದವ ಎಎದನ ಬರದಲಲ ವರರ ದಎದನ ಆರರರಪಗ ಗರಡಡ ಗಳನನ ಎಎದರ ಸರ .
19. So as per above admissions, the alleged cheque in questions issued by the accused to the possession of complainant in the year 2017 as blank. The complainant filled particulars in the year 2019 and used previous invoices of the year 2017 and issued ExP10 for recovery of four invoices amount for a sum of Rs.3,27,786/, this is totally contrary to the claim of para 3 of complaint. The specific defence of the accused regarding notice issued by complainant has been not served on accused. On perusal of ExP11, it is served on accused. But complainant never suggested to DW1 during course of cross examination, the notice issued by complainant duly received by accused or some other person. Nothing has been elicited regarding signature appears on ExP11. So it is settled principle of law through catena of judgments of Apex courts, if once notice issued through RPAD by mentioning correct known address of accused, it would be presumed that deemed service on accused as per section 27 of General Clause Act. So admittedly accused did not replied to the statutory notice issued by complainant. Moreover the case of the accused, he was not residing in the address mentioned in ExP10,
11. the accused himself before this court the same address which is mentioned in ExP10 and 11 in his chief examination. So this defence of accused would not sustainable. Hence this court rejected the defence of accused, notice issued by the complainant has not been served on accused.
20. On perusal of entire documents, it apparently disclose that the complainant complied basic necessary ingredients of Section 138 of NI Act. So in the absence of any materials from the side of accused, it can conclude that the complainant company and accused having business transactions with many years. The accused purchased material worth about Rs.3,58,778/ from complainant company in the year 2017. Accused had issued disputed cheque in favour of complainant company in the year 2017 for the purpose of security to obtain distributorship for the product of RKG products which is launched by complainant. Though DW1 admitted during course of cross examination at page 3 at 5th line he issued cheque in question for discharge of outstanding due it appears like stray admission. The accused specifically denied entire case of complainant and took specific defence during course of cross examination of PW1, the alleged cheques in question and other 8 cheques were with the custody of complainant. PW1 also clearly admitted the cheques in question handed over to complainant in the year 2017 in blank. So it is burden on complainant to prove before this court with relevant ledger extract and GST return statements and proper invoices to show the accused and complainant had business transactions of a sum of Rs.11,00703/, out of that to discharge partial liability he issued cheques in question for a sum of Rs.3,27,786/. He produced ExP12 to 15, the total value fo invoices Rs.3,58,778/. But ExP10 issued for recovery of Rs.3,27,786/. So there is a much inconsistence in cheque amount and invoice amount which is claimed by complainant. For discharge of outstanding due amount the said cheques on presentation got dishonoured, even though he received legal notice and knowledge about legal notice, he did not replied and he do not take any legal action against complainant company for misusing his signed blank cheques. Admittedly there is no bank statement from complainant company for receiving Rs.90,000/ from accused for the purpose of grant distributorship for the RKG products. ExP1,3.5 and 7 are negotiable instrument its had own presumptive value, there is no other document to prove there is a due of mentioned cheques amount. The accused does not dispute the fact that the cheques in question belongs to accused and bear signature on disputed cheques. The admission of accused is sufficient to prove the execution of the cheques by the accused. But accused success in bring the fact during course of cross examiantion, he issued cheques in question in the year 2017 in blank, the same have been filledup by complainant. Accused produced ExD1 to 7, he received materials in the year 2017 and cleared entire outstanding due towards complainant. The complainant had due towards accused a sum of rs.90,000/ which is paid by accused by way of cash. To substantiate this fact, the accused has not produced any believable evidence before this court. The accused mainly contended he issued his signed blank cheques to the possession of complainant company for the purpose of security, it is worthful to refer and relied recent decision of Hon'ble Apex court and in this case, Apex court clearly discussed and held that what is the effect of issuance of security cheques and its consequence.
21. Further Hon'ble Apex court in a recent decision Hon'ble Supreme Court of India Sripathi Singh Vs State of Jarkhand 2021 SCC 1002 clearly held that " a cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstances "Security" in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. A cheque issued as a security, it is given, deposited or pledged to make certain the fulfillment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified time framed and issues a cheque as security to secure such repayment if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitle to present the same. On such presentation, if the same is dishonoured, the consequences contemplated u/s 138 and the other provisions of NI Act would flow".
22. Further it is relevant to state that as per complaint averments, the complainant never stated when they supplied materials worth of Rs.11,00,703/ to accused. The complainant stated the cheques in question issued on 712019, 2812019, 2112019, 1412019, but it is clearly admitted during course of cross examination, the above cheques received by the accused in the year 2017 in blank. Later the said cheques filledup by PW1 and presented to the bank for collection of payment, the said cheques dishonoured on 122019. Further in complaint para 3 the complainant stated that the complainant is a manufacturer and supplier of hosiery goods the accused purchased the hosiery goods from complainant, the accused is balance to the complainant a sum of Rs.11,00,703/ and cheques in question issued for discharge of Rs.3,27,786/. To substantiate this fact, the complainant company placed reliance on ExP1 to 11 and other related documents. This court on meticulous perused Ex P12 to 15 in the background of the averments made in complaint, it is forthcoming that admittedly ExP12 to 15 raised on 552017, 952017, 1052017, 1962017. The accused also produced full detail invoices which is pertaining to ExP12 to 15 as ExD1 to 7. Either parties are not produced any document to show the said invoice amount cleared by accused. It is primary burden on complainant to prove before this court that accused had made transaction with complainant from this period to this period and he had made payment for invoices this much amount and accused had due of this much amount by producing running account ledger account statement. In the instant case, the accused stated he cleared entire transaction amount till 2017, the complainant did not produced running account details, ledger account and GST payment statement, lorry receipt etc., So in the absence of this material evidence, the version of complainant could not be believe. To the contrary, the accused success in elicited through the mouth of PW1, he issued cheques in question in the year 2017 as blank cheque, same was filled by PW1, there is no material from complainant to show for receiving materials by the accused from complainant. The case of the complainant specifically stated that the alleged cheque issued in the year 2019. They never pleaded in their complaint regarding entire transactions made by accused from the year 2017 to 2019. The complaint contained half facts, it is not a detailed complaint. So on the basis of this complaint, it could not possible to hold the alleged cheque issued for discharge of outstanding due amount. As already discussed above, there is a much inconsistence in invoice amount, cheque amount and there is no averment in the complaint regarding issuance of cheques in question to the possession of complainant. There is no averment in the complaint when accused ordered for purchase materials and when complainant had been supplied the materials to the accused and in what mode materials supplied to the accused. Further it is forthcoming from ExD1 to 7 the payment should made through cheque or DD, but either parties were not produced payment details of transactions made between them. The PW1 clearly admitted during course of cross examination that ExP1 to 7 pertaining to the year of 2019 and related invoices pertaining to the year of 2019 and PW1 clearly admitted there is no acknowledgment from accused for receiving materials from complainant and he did not produced invoices pertaining to the year 2019. ExP12 to 15 pertaining to the year of 2017. So from the admission by the mouth of PW1 suffice that the complainant company having signed accused cheques in their possession in the year 2017. This case filed in the year 2019 on the previous invoices which were raised by the complainant in the year 2017. There is no signature of accused or his agent for having taken delivery of materials under the invoice ExP12 to 15. In the absence of any material to show that the materials specified under the invoice at ExP12 to 15 not delivered to accused there is no liability on the part of accused pay any amount under the said ExP12 to 15. It is pertinent to extract relevant provision of Section 33 of sale of goods Act, same has been extracted below: Section 33 DELIVERY Delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorised to hold them on his behalf.
23. So as per above definition, it is clear delivery of the goods by the both parties as agreed and may treated as delivery or putting the goods in the possession of buyer or any authorised person by buyer to hold goods on behalf of buyer can be treated as goods delivered. In the instant case, there is no any acknowledgment by the accused on ExP12 to 15 for receiving said materials from complainant company and there is no authorisation from accused to receive materials under ExP12 to 15 on his behalf. The defence of the accused regarding ExP12 to 15 that he already paid entire invoice amount which is covered under ExP12 to 15. The complainant can produce relevant documents to show before this court the accused had still due of above said invoice amount, but he did not produce relevant materials before this court. Since accused is not due and liable to pay any amount to the complainant the demanding amount by complainant is not covered as legally recoverable debt. The standard of proof for rebutting the presumption u/s 139 of NI Act doing so is that of preponderance of probabilities. If the accused is able to raise a probable defence which creates doubt about the existence of the legally recoverable debt or liability the presumption can fail. To rebut the presumption, the accused can rely on the materials submitted by the complainant in order to raise such defence. It is conceivable that in some case the accused may not need to adduce evidence of his own. Further it is important to note in offence u/s 138 fo NI Act is not expected to prove his defence beyond reasonable doubt as is expected in criminal trial. In the circumstance above and considering the facts and evidence on record, it has to be considered that though there is a initial presumption u/s 139 in favour of complainant, preponderance of probabilities the accused has rebutted the presumption u/s 139. The complainant has utterly failed to establish or prove the accused has committed the offence punishable u/s 138 of NI Act. On the other hand the accused has rebutted the presumption u/s 139 of NI Act that the cheque i.e., ExP3 is not issued towards discharge of legally recoverable debt or liability. Therefore, on going through the entire evidence and records, it clearly appear that the complainant company has suppressed the real fact and come up with some facts to suit his claim on the basis of Ex.P.3. On the basis of evidence in cross examination of the complainant as PW1, the accused in the case on hand as successfully rebutted the presumption raised in favour of the complainant u/s 138 of NI Act. Even if the cheque in question i.e. Ex.P.3 was returned uncashed there is absolutely no case against the accused for the offence punishable u/s 138 of NI Act. If the totality of the evidence on record is considered, doubt arises regarding the case of the complainant. Hence, the complainant has failed to prove beyond reasonable doubt that the accused has committed any offence punishable u/s 138 of NI act. The case of the complainant creates serious doubts in the mind of court. The light of existing evidence, this court is of the considered view that the defence of the accused cannot be totally ruled out. Therefore, the case of complainant is totally surrounded with heavy cloud and creates serious doubt. As discussed in detail, when the evidence placed before this court leads to disbelieve the case of the complainant, then the presumption stands rebutted. Thus, considering all these aspects, this court is of the considered view that the complainant firm has failed to prove points No.1 to 3 in his favour as contended. It is needless to say that when the complainant failed to prove point no.1 to 3 the complainant cannot be granted with any relief as sought for in this case. Hence, point No.1 to 3 are required to be answered in Negative and answered accordingly.
24. Point No.4: For the reasons discussed in connection with in point no.1 to 3 this court proceed to pass following : : ORDER : By Acting U/s 255(1) of Cr.P.C the accused is hereby acquitted for the offence punishable U/s 138 of NI Act. The bail bond of the accused stands canceled.
(Dictated to the stenographer, through online computer, thereof is corrected and then pronounced by me in the open Court on this the 16th April 2022) (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW1 : Kuldeep Kothari LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT: Ex.P.1, 3, 5, 7 : Cheques ExP1(a) ExP3(a), ExP5(a) ExP7(a) : signatures Ex.P.2, 4, 6, 8 : Bank endorsements Ex.P.9 : Resolution Ex.P.10 : Legal notice Ex.P.11 : Postal acknowledgment Ex.P.12 to 15 : 4 invoices
LIST OF WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
DW1 : Badre Baburao LIST OF DOCUMENTS MARKED ON BEHALF OF THE ACCUSED: ExD1 to 7 : Tax invoices (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.