Bangalore District Court
Sri.A.Prasad Babu vs M/S.R.K.Construction Company on 8 August, 2018
IN THE COURT OF LVII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT :-
PADMA PRASAD, BA (Law), LLB.
LVII ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 8TH DAY OF AUGUST, 2018.
C.C.No.50672/2016
COMPLAINANT : Sri.A.Prasad Babu
S/o. Sri.Muniswamy Naidu,
Aged about 45 years,
Proprietor, Sathvika Consortium,
Flat No.37,
Sathvika Dreams Apartments,
No.11, 2nd Main Road,
Amarjyothi Layout,
Sanjaynagar,
Bangalore - 560 094.
.Vs.
ACCUSED : 1. M/s.R.K.Construction Company
H.No.37,
Adarsh Colony
Sindhanur - 584 128.
Represented by its Partners
2. Sri.M.Ramkoteshwara Rao,
Aged about 41 years,
W/o. M. Ramakoteshwara Rao
3. Sri.M.Vimala
Aged about 41 years,
W/o.M.Ramakoteshwara Rao
2 C.C.No.50672/2016
4. M.Veerat
S/o. M. Ramakoteshwara Rao
Aged about 26 years,
All at No.37,
Adarsh Colony,
Sindhanur.
****
JUDGMENT
The complainant filed this complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. This case initially filed before this court in PCR No.50730/2013 and that has been numbered as C.C.No.51417/2013 on the file of 14th ACMM Court. Thereafter in view of the decision in a case of; Dasharath Roopsingh Rathod, this case has been again filed on the file of JMFC, at Sindhanoor. In view of the subsequent amendment to the N.I.Act, the case has been again transferred to this court for disposal.
3. The complaint case in nutshell is that the accused No.1 secured a civil contract work from the Karnataka Slum Clearance Board for construction of 86 houses and to provide infrastructure work to Ashraya Badavane Slum, Shikaripura Town under IHSDP Scheme of 'JNURM'. As the accused did not had required men and machinery for executing the said work, approached the complainant to do the said work and they have entered into an agreement with complainant on 24.02.2010. As per agreement, the complainant has been 3 C.C.No.50672/2016 directed to deposit Rs.3,85,000/- as EMD (Earnest Money Deposit) to accused No.1. The accused agreed to refund the said amount without interest after completion of the work. Accordingly, this complainant has paid the said money through cheque bearing No.525638 dtd:24.02.2010. The complainant also claimed that the accused has issued a separate receipt dtd:24.02.2010 for having been received the said amount. The accused also claimed that as per the agreement the accused required to submit the bills to the Government at the different stages of work and after the receipt of the same the accused used to pay the amount after deducting 3% out of the same as profit. The complainant claims that he has completed the work on 24.11.2011 and the final bill was also passed by the Government on 10.08.2012. After the completion of the work when the complainant approached the accused for the refund of Rs.3,85,000/- the accused has issued the cheque bearing No.602890 dtd:30.01.2013 for a sum of Rs.3,85,000/-.
When the complainant presented the said cheque for encashment, that has been dishonoured as per bank memo dtd:03.04.2013 stating "Exceeds Arrangement". Thereafter the complainant caused a legal notice to the accused on 23.04.2013 that has been duly served on the accused. The accused inspite of the service of the notice, failed to comply with the notice. Hence, filed this complaint.
4. After filing the complaint, sworn statement of the complainant has been recorded and on perusing the materials on record i.e., 4 C.C.No.50672/2016 cheque, bank endorsement, legal notice and documents for having been caused the notice to the accused, the court has been taken the cognizance of offence and issued summons to the accused.
5. In response to the summons, the accused appeared through his counsel and he was on court bail. Plea has been recorded; accused pleaded not guilty and claimed to be tried.
6. To prove the case, the complainant got examined himself as P.W.1 and got marked documents at Ex.P.1 to P.8. Inspite of sufficient opportunity the accused neither led his defense nor got marked any documents on his behalf.
7. On closure of complainant side evidence, the accused statement has been recorded under Sec.313(1)(b) of Cr.P.C., by placing the incriminating evidence appeared against the accused that are denied by the accused.
8. On the basis of above, the point for consideration is that;
"Whether the complainant has proved that the accused has committed the offence punishable under Sec.138 of Negotiable Instruments Act?"
9. Heard the arguments and perused the materials on record. On that basis my finding on the above point is in the "Negative" for the following;
5 C.C.No.50672/2016REASONS
10. The complaint case in nutshell is that the accused No.1 secured a civil contract work from the Karnataka Slum Clearance Board for construction of 86 houses and to provide infrastructure work to Ashraya Badavane Slum, Shikaripura Town under IHSDP Scheme of 'JNURM'. As the accused did not had required men and machinery for executing the said work, approached the complainant to do the said work and they have entered into an agreement with complainant on 24.02.2010. As per agreement, the complainant has been directed to deposit Rs.3,85,000/- as EMD (Earnest Money Deposit) to accused No.1. The accused agreed to refund the said amount without interest after completion of the work. Accordingly, this complainant has paid the said money through cheque bearing No.525638 dtd:24.02.2010. The complainant also claimed that the accused has issued a separate receipt dtd:24.02.2010 for having been received the said amount. The accused also claimed that as per the agreement the accused required to submit the bills to the Government at the different stages of work and after the receipt of the same the accused used to pay the amount after deducting 3% out of the same as profit. The complainant claims that he has completed the work on 24.11.2011 and the final bill was also passed by the Government on 10.08.2012. After the completion of the work when the complainant approached the accused for the refund of Rs.3,85,000/- the accused has issued the cheque bearing No.602890 dtd:30.01.2013 for a sum of Rs.3,85,000/-.
6 C.C.No.50672/2016When the complainant presented the said cheque for encashment, that has been dishonoured as per bank memo dtd:03.04.2013 stating "Exceeds Arrangement". Thereafter the complainant caused a legal notice to the accused on 23.04.2013 that has been duly served on the accused. The accused inspite of the service of the notice, failed to comply with the notice. Hence, filed this complaint.
11. The complainant in support of his case got examined himself as P.W.1 by filing evidence affidavit wherein he stated in consonance with the complaint case and also got marked documents at Ex.P.1 to 8 in support of his case. Ex.P.1 is the cheque, Ex.P.2 is the Bank Return Memo, Ex.P.3 is the O/c of the legal notice, Ex.P.4 to 8 are the postal receipts and postal acknowledgments for having been sent and served the notice to the accused. The accused though denied or disputed the transaction claimed that he has issued the cheque as a security to the complainant and not disputed the signature in the cheque. Therefore, the issuance of the cheque and signature in the Ex.P.1 cheque is an admitted fact. The said cheque has been presented for encashment within its validity, legal notice has been issued in time and the complaint is also in time. Hence, the initial presumption under Sec.139 of N.I.Act has to be drawn in favour of the complainant that the cheque has been issued towards the discharge of legally enforceable debt.
7 C.C.No.50672/201612. When the complainant made out a case to draw a presumption under Sec.139 of N.I.Act, the burden shifts on the accused to prove the contrary to the complaint case as well as make out a rebuttal evidence so that the case of the complainant can be disbelieved.
13. The accused during the cross-examination of complainant has taken several defenses that has to be considered one by one. One of the defenses taken by the accused is that there is a delay in representing the case before this court after withdrawing the same from Sindhanoor Court. It is true that this case has been filed on the file of JMFC, Sindhanoor as on 30.04.2015. Subsequently in view of the amendment to Negotiable Instruments Act, the said complaint has been returned to the complainant as per order dtd:13.01.2016 to present before this court. It is claimed by the accused that the complaint has not been filed in time before this court but the said contention cannot be accepted as the complainant presented this complaint before this court as on 22.01.2016 as per the order sheet maintained by this court.
14. The other claim of the accused that there was a delay in filing the complaint itself. It is relevant to note that this case has been initially filed before the 24th ACMM Court. As per Web status of the case, this complaint has been filed on 24.05.2013 as per the registration number of the case bearing No.50730/2013. the claim of the accused is that this complaint has been filed on 03.08.2013. The said fact is not true as the case has been filed on 24.05.2013 and 8 C.C.No.50672/2016 thereafter the complaint has been posted for hearing on 03.08.2013. Admittedly the legal notice has been issued on 23.04.2013 and the said notices have been served in the month of April 2013 itself and from the date of service of notice, the complainant has to wait for 15 days and thereafter within 30 days the complainant has to file the complaint before the court. The present complaint is filed within 30 days from the date of notice hence, the claim of the accused that there is a delay in filing the complaint cannot be accepted and the complaint is filed in time and also re-presented the case after return of complaint by the Sindhanoor court within time. Hence, the claim of the accused that the complaint is barred by limitation as well as the complaint filed after the lapse of 30 days from the date of receiving the complaint at Sindhanoor court cannot be accepted and this complaint is well within the time.
15. The definite case of the complainant is that accused No.1 is a building contractor and secured a civil contract work from the Karnataka Slum Clearance Board for construction of 86 houses and to provide infrastructure work to Ashraya Badavane Slum Shikaripura Town under IHSDP Scheme of JNURM. The claim of the complainant is that the accused was unable to complete the work without the men and machinery hence, he approached the complainant to carryout work on behalf of the accused, accordingly the complainant claimed that he is the sub-contractor under the complainant. The accused also claimed that there was an agreement between the complainant and the accused regarding the work entrusted by the 9 C.C.No.50672/2016 accused to the complainant. The accused claimed that as per agreement the complainant deposited Rs.3,85,000/- as a EMD i.e., Earnest Money Deposit as on 24.02.2010. The accused also claims that it is agreed between the parties that after completion of the work and settlement of bills, the accused has to repay the said EMD to the complainant. The accused claimed that he has completed the work entrusted to him as such the accused persons are liable to return amount stated in the agreement. The accused also claims that in order to discharge the said amount the accused has issued the said cheque.
16. The accused disputed every aspect in the case claiming that the complainant has not produced the original agreement and also not explained what is the exact due by the accused to the complainant. It is also claimed by the accused that the complainant has not filed the completion report and other document to show that the work entrusted to accused No.1 has been carried out by him. If the manner of cross-examination is accepted, the accused totally denied and disputed any transaction between him and the accused as well as execution of documents. Even that is accepted, then why the accused has issued the cheque to the complainant for a security has to be explained by the accused himself. If at all there is no transaction whatsoever between the complainant and the accused there is no necessity for the accused to pay the money to the complainant. In this context it is useful to refer certain suggestion put to the complainant by the accused during the cross-examination 10 C.C.No.50672/2016 of the complainant. In page 4, 9th line onwards it is suggested to the complainant that;
"It is false to suggest that the accused No.2 has not issued the cheque towards the discharge of debt but the said cheque has been issued as a security".
17. Similarly, in the cross-examination at page No.6, 9th line onwards it is suggested to the complainant that;
"It is false to suggest that I have misused the earlier cheque issued by the accused to me as a security by filling up the same".
18. The aforesaid 2 suggestions put to the complainant clearly establishes that there is some transaction between the complainant and the accused. It is also admitted by the accused that in the earlier transaction he has issued the cheque. What is the said earlier transaction is also not explained by the accused and also the accused not made out any case to show that why he has issued the cheque in favour of the complainant or what is the necessity for the accused to issue a cheque as a security. If any person issues a cheque for security, it means there is some transaction between the parties that creates a liability to one person to the other and to assure the payment or guarantee for the payment of such liability or discharge of such liability the cheque has been issued as a security. When the accused failed to make out any case regarding the issuance of the cheque or possession of his cheque by the complainant and when the 11 C.C.No.50672/2016 accused fails to give explanation regarding transaction between the accused and complainant that compelled the accused to issue cheque as a security certainly probablise the case of the complainant.
19. It is the definite case of the complainant that he is the sub- contractor under the complainant. The complainant also claims that there is an agreement between the accused and complainant regarding the work. It is suggested to the complainant during his cross-examination that he has not produced any material to substantiate that there is a contract between the complainant and accused but the material placed before the court sufficiently discloses that the copy of the agreement has been produced by the complainant along with complaint. Of course that has not been marked by the complainant and the complainant has not produced the original agreement entered between him and the accused. It is well settled principle of law that the offence under Sec.138 of N.I.Act is a summary proceedings and in a summary proceedings the photostat copy of the document certainly can be looked into unless and until disputed by the accused as per the principle laid down by the Hon'ble Supreme Court in a case reported in; 2014 AIR SCW 3462 (Indian Bank Association .Vs. Union of India). In this case the accused admitted the issuance of the cheque but why he has issued the cheque is without any explanation. Under such circumstances certainly the case of the complainant has to be accepted that there is a sub-contract between the complainant and the accused and there was an agreement. It is relevant to note that though the accused 12 C.C.No.50672/2016 claimed that the complainant has not produced any original agreement not specifically disputed that there is no agreement between the complainant and the accused regarding the work contract.
20. As already stated above, the accused not disputed the issuance of the cheque. The defense of the accused is that the cheque has been issued as a security, for what transaction the accused has issued the cheque as a security is without any explanation. It is also relevant to note that the accused during the cross-examination at page No.6, 14th line onwards made out a case that reads as;
"It is true that the accused paid Rs.50,000/- to me to my account through RTGS. It is false to suggest that this accused on 28.03.2013 and 29.03.2013 has paid Rs.1,50,000/- and Rs.50,000/- respectively to Kumar who is my relative as per my instructions."
21. If the said suggestion is accepted, the accused claimed the payment or payment of Rs.2,50,000/- to the accused. If there is no transaction whatsoever between the complainant and the accused, there is no necessity for the accused to claim that he has paid the aforesaid amount as claimed by him. It is also relevant to note that the accused has also not made out any case to show that why has paid the aforesaid amount either to complainant or Kumar. It is the specific case of the complainant that when he entered into a contract agreement with the accused, the complainant has paid Rs.3,85,000/-
13 C.C.No.50672/2016to the complainant. Accordingly the complainant claims that after the completion of work entrusted to him by the accused, the accused issued this cheque towards the discharge of said earnest money deposit. As the accused has not given any explanation regarding for what security the accused issued the cheque, it has to be accepted that the accused has issued the cheque towards the repayment of said earnest money deposit by the complainant as claimed in the complaint.
22. It is argued by the defense counsel that the complainant has not produced the final settlement bill or he has not placed any material on record to show that the accused has completed the project or final bill has been cleared. It is relevant to note that the complainant claimed that he is a sub-contractor under accused No.1. Even the said fact has not specifically disputed by the accused. If at all this accused is not at all the main contractor obtained the contract work from the Karnataka Slum Clearance Board for construction of 86 houses, certainly he would have disputed the said fact. As such it has to be inferred that accused No.1 has obtained the aforesaid civil contract work. As such final bill will be paid to the accused and accused will be in possession of the said bills and not the complainant. As such it is for the complainant to prove that he has not received the final bill.
23. In this case the accused disputed the payment of money as claimed in the complaint. The complainant claimed that he has paid 14 C.C.No.50672/2016 the money to the accused through cheque and also claimed that there is a receipt for having been paid the money to the accused. When the accused disputed the receipt of money, the complainant has to prove the payment. The complainant of course produced the photostat copy of the receipt but not produced the original receipt. When the document has been disputed by the accused, the complainant ought to have produced the original document for having been paid the money particularly when he claims that there is a document to show the payment. The complainant would have easily proved the payment by producing his bank statement.
24. The complainant seriously disputed the capacity of the complainant to file this case. The accused claimed that as per Ex.P.1, the cheque has been issued to Sathvika Consortium but the said Sathvika Consortium is not the complainant in this case. The accused also disputed that the complainant has not produced any material on record to show that the complainant is the proprietor of said Sathvika Consortium. In this context the counsel for the accused relied on a decision reported in; 2011 Cri.L.J. 1912 in a case of Milind Shripad Chandurkar .Vs. Kalim M. Khan and another. In the said judgment Hon'ble Supreme Court held that;
"Negotiable Instruments Act (26 of 1881), Ss.138, 142, 7, 8- dishonor of cheque - complaint - locus-standi to file- cheque issued to firm dishonoured- complaint filed by the complainant claiming himself to be sole proprietor of firm-15 C.C.No.50672/2016
No evidence however produced to show that he was sole proprietor of firm - Complainant does not satisfy, criteria of being "payee" of cheque - complaint at his instance not maintainable".
25. In the aforesaid judgment the Hon'ble Apex Court at para No.18, discussed about Sec.7 and 8 of N.I.Act, in para No.19 the Hon'ble Apex Court also discussed about Sec.142 of N.I.Act and held that payee or holder of the cheque to be a complainant. In this case the cheque is issued to Sathvika Consortium as such said Sathvika Consortium is the payee and the complaint must be Sathvika Consortium. It is true that the Sathvika Consortium is a juristic person and it should be represented by natural person that is to say proprietor. The complainant claims that he is the proprietor of the Sathvika Consortium but he has not produced any document to show that he is the proprietor of Sathvika Consortium. It is relevant to note that during the cross-examination in the 1st sentence the accused asked the question to the complainant that he has not produced any document to show that he is the proprietor of Sathvika Consortium. As such the accused disputed the proprietorship of complainant over the Sathvika Consortium. When the accused disputed the proprietorship of complainant and when the cheque has been issued in the name of Sathvika Consortium the complainant ought to have produced document to show that he is the proprietor of Sathvika Consortium. In the aforesaid judgment at paragraph No.22 the Hon'ble Supreme Court specifically held that; The law 16 C.C.No.50672/2016 stands crystallized to the effect that a person can maintain complaint provided he is either a "payee" or "holder in due course" of the cheque. As already stated earlier, the Sathvika Consortium is the payee of the cheque. Hence, the complaint must be filed by Sathvika Consortium and there is no material to show that the complainant is the proprietor of said Sathvika Consortium hence, certainly this complaint is not maintainable in view of the principle laid down by the Hon'ble Supreme court in the aforesaid decision.
26. The complainant inspite of disputing the agreement, receipt not chosen to produce the said documents before the court. As such though the complainant proved that the accused has issued the cheque and also proved the payment of certain amount certainly this complaint is not maintainable in view of the principle laid down in the aforesaid case. In view of these facts, non examination of accused as a defense witness as well as non replying the notice will not make any difference as the complainant failed to prove his case. Accordingly, I answer the above point in "Negative". In the result, following;
ORDER Acting under Sec.255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable under Sec.138 of Negotiable Instrument Act.
17 C.C.No.50672/2016The bail bond stands cancelled.
(Dictated to the Stenographer, transcript thereof is corrected and then pronounced by me in the open court on this the 8th day of August, 2018) (PADMA PRASAD), LVII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri.A.Prasad Babu
2. Documents marked on behalf of complainant:
Ex.P.1 : Cheque
Ex.P.1(a) : Signature of the accused
Ex.P.2 Bank Return Memos
Ex.P.3 : O/c of the legal notice
Ex.P.4 : 4 Postal Receipts
Ex.P.5 to : 4 Postal Acknowledgments
Ex.P.8
3. Witnesses examined on behalf of Accused:
- Nil -
4. Documents marked on behalf of Accused:
- Nil -
(PADMA PRASAD)
LVII ACMM, BENGALURU.