Bangalore District Court
Aged About 42 Years vs S/O. Krishnaiyengar on 20 September, 2017
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 20th DAY OF SEPTEMBER, 2017
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.58209/2016
Sri. Santosh Kumar M.R
S/o Rajeshekar
COMPLAINANT Aged about 42 years, R/at No.94, 2nd Main, 5th
Cross, Sarvabhouma Nagar, Chikkalasandra,
Uttarahalli, Bengaluru - 560 061.
1) M/s. Enolar Photovoltaic's & Renewables
Private Ltd.,
Reptd by its Managing Director - Mr. Ramesh
No.45/29-1, Gubbanna Indl. Estate, 6th Block, Rajaji
Nagar, Bengaluru - 560 010.
2) Sri. Ramesh - Managing Director
ACCUSED S/o. Krishnaiyengar
M/s. Enolar Photovoltaic's & Renewables Private Ltd.,
R/at No.1567/2, 7th Cross, Govindaraj Nagar,
Bengaluru - 560 079.
3) Smt. Umadevi - Director
W/o. Thirunavvukkarasu
M/s. Enolar Photovoltaic's & Renewables Private Ltd.,
R/at No.8-A, Amritha Purna Apartments, 16th Cross,
11th Main Road, Malleshwaram, Bengaluru - 55.
2
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused are acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
JUDGMENT
The complainant has filed this complaint this complaint under Sec.200 Cr.PC against the accused persons for the offence punishable under Section 138 r/w 142 of the Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant is that, the complainant is the Managing Director of M/s.Splar Machinery Pvt. Ltd., and accused No.2 is the Managing Director and accused No.3 is the Director of accused No.1 - M/s.Enolar Photovoltaic's and Renewables Pvt. Ltd. The complainant and the accused had entered into an agreement dated 18.8.2015 and as per the said agreement, the complainant had paid a sum of Rs.30,33,000/- to the accused. The said agreement was dissolved on 11.4.2016 by both parties by entering Dissolution Agreement dated 11.4.2016 and as per 3 the agreement the accused persons had to return Rs.30,33,000/- to the complainant. As per the agreement, the accused persons had issued cheque bearing No.844974 dated 10.8.2016 for Rs.14 lakhs drawn on Canara Bank, Mahalakshmi Layout in favour of the complainant. It is further case of the complainant that as per the promise, assurance and instruction of the accused persons, the complainant had presented the said cheque for encashment on 25.10.2016 through ICICI Bank Ltd., M.G. Road branch, but the said cheque was returned dishonoured with a shara "funds insufficient" on the same day. After the dishonour of the cheque, the complainant has approached the accused and intimated the fact of dishonour of the cheque and asked for payment of the amount, but the accused had been avoiding the complainant. Without having any other alternative, the complainant got issued legal notice dated 5.11.2016 to the accused persons by RPAD demanding the payment of the cheque amount and the said notice was served on the accused No.2 on 7.11.2016 and on 8.11.2016 on accused Nos.1 & 3. In spite of the service of notice, the accused persons did not comply with the legal demand made therein and not opted to issue any reply to the said notice and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Accordingly on these grounds the complainant prayed for conviction of the 4 accused persons as per law in the interest of justice and equity.
3. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons to the accused persons and accordingly Criminal Case was registered against the accused persons for the offence punishable U/s.138 of N.I. Act and summons was issued to them.
4. In pursuance of the summons issued by this court, the accused have put up their appearance through their counsel and enlarged on bail. Thereafter plea was recorded. The accused have denied the substance of accusation and claimed for trial.
5. In order to prove the case of the complainant, the complainant himself is examined as PW.1 and got marked as many as 12 documents as per Ex.P1 to P12 and also examined one witness as PW.2 and through PW.2 got marked three documents as per Ex.P13 to P15 and closed his evidence. After closure of the complainant's evidence, statement of the accused U/s.313 of Cr.PC was recorded. The accused have denied the evidence of the complainant, which is found against them as to commission of the offence 5 alleged. Accused No.2 himself examined as DW.1 and got marked three documents as per Ex.D1 to D3 and thereby evidence of the parties concluded.
6. Heard the arguments of the learned counsel for the respective parties.
7. On perusal of the entire material available in the file and also on hearing the arguments of the learned counsels, the points that would arise for consideration are :-
1) Whether the complainant proves that the accused had issued the cheque in question in discharge of the legally recoverable debt as contended by him?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is entitled for the relief as prayed in the complaint?
4) What Order?
8. The above points are answered as under;
Point Nos.1 to 3 : Negative,
Point No.4 : As per the final order,
for the following.......
6
REASONS
9. Point Nos. 1 to 3: Since these points are inter linked and to avoid repetition they are taken together for discussion. Before looking into the disputed facts between the parties, it is appropriate to refer the undisputed facts at this stage itself, which can be gathered from the material placed before this court on behalf of the parties. On going through the contention of the parties, oral and documentary evidence, it is clear that the complainant and accused are known to each other and the complainant is the Managing Director of M/s.Splar Machinery Pvt. Ltd., and accused No.2 is the Managing Director and accused No.3 is the Director of M/s.Enolar Photovoltaic's & Renewables Pvt. Ltd., and in that regard there is no dispute. Further it is also clear that one Rajesh Hebbar was the Managing Director of M/s.Splar Machinery Pvt. Ltd., prior to the complainant becoming Managing Director of the said company. It is also not in dispute that M/s.Splar Machinery Pvt. Ltd., is the Sales Service Agents in India for the China companies by name Boxim and Humalazer. Further it is admitted fact that the accused No.2 imported the machineries from China in the year 2011 for which installation and service facility was provided by M/s.Splar Machinery Pvt. Ltd. It is also undisputed fact that cheque in question belonged to the 7 accused No.1 company and the same was issued by accused No.2 and the said cheque was bounced on its presentation for the reason "funds insufficient" and thereafter the complainant got issued legal notice to the accused persons which was served on them for which the accused persons have not issued any reply. It is also clear that the complainant herein has filed one more cheque bounce case against the accused persons on behalf of the M/s.Splar Machinery Pvt. Ltd.
10. With the above admitted facts, now the cross- examination of the complainant's side witness and also the evidence of the accused No.2 are analyzed, it is clear that the accused have denied the case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act, the existence of any legally recoverable debt in favour of the complainant and issuance of cheque in question towards discharge of debt in favour of the complainant as put up by the complainant in toto. It is the specific defence of the accused that in the month of April 2016 accused No.2 on behalf of accused No.1, placed the purchase order with the M/s.Splar Machinery Pvt. Ltd., for purchasing Solar Laminating and Cell cutting machine worth of which was about Rs.35 lakhs. In that connection accused No.2 had paid in all Rs.18 lakhs as an advance amount to the M/s.Splar Machinery Pvt. Ltd., as demanded and at that time 8 accused No.2 had also issued two blank cheques of accused No.1 company signed by him in favour of the M/s.Splar Machinery Pvt. Ltd., as the value of the machineries which were to be imported from China could not be valued. Further the complainant agreed to provide the said machineries within four months. But M/s.Splar Machinery Pvt. Ltd., could not supply the machineries as agreed and the complainant on behalf of the M/s.Splar Machinery Pvt. Ltd., sought for another three months. Since the said machineries were not supplied till September, the accused No.2 had issued letter of cancellation of purchase order and in spite of the cancellation of the purchase order, without returning the blank signed cheques, the complainant by misusing one of the said cheques filed the present false case though there was no any due in his favour. It is also further case of the accused that the another blank cheque was also misused by filling the same in the name of M/s.Splar Machinery Pvt. Ltd., in filing another complaint though M/s.Splar Machinery Pvt. Ltd., which itself has to refund advance amount paid by the accused and accordingly prayed for dismissal of the complaint in the interest of justice and equity.
11. Relying on the oral and documentary evidence the learned counsel for the respective parties vehemently argued as to the contention of the respective parties. It is 9 needless to say that the proceeding U/s.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. 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 U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshminarayana Vs Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally 10 recoverable debt is to be presumed". Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date as found therein.
12. In the light of the rival contention of the parties at the out set it is to be determined whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. It is admitted fact that Ex.P3-cheque belonged to the accused No.1 company and the same was signed by accused No.2. The contents of Ex.P4-bank endorsement dated 25.10.2016 are analyzed, it is clear that the complainant presented Ex.P3-cheque for encashment through ICICI Bank Ltd., and the same was dishonoured on 25.10.2016 for the reason "funds insufficient". The contents of Ex.P5 to P12 i.e legal notice dtd.5.11.2016, four postal receipts dtd.5.11.2016 and three postal acknowledgements are analyzed, they reveal that the complainant got issued legal notice to the accused Nos.1 to 3 by registered post on 5.11.2016 and the same was served on the accused Nos.2 & 3 on 7.11.2016 and on accused No.1 on 8.11.2016. The present complaint was filed on 9.12.2016 i.e after lapse of 15 days from the date of service of notice on the accused persons and within 30 days thereafter. On perusal of these aspects, it is clear that a prima facie the complainant had presented the cheque in question in time and got issued 11 statutory notice within statutory time and filed the present case within the prescribed period. Admittedly the accused had not issued any reply to the said notice and demand made in the notice was also not complied with. Therefore on going through these documents their remains no doubt that the complainant has complied with all the technical requirements of Sec.138 of N.I. Act so as to the constitute the offence against the accused persons.
13. Added to the above referred documentary evidence, the complainant in his evidence by way of affidavit specifically stated as to compliance of requirements of Sec.138 of N.I. Act. On going through the evidence available on file, it is noticed that virtually the accused have not disputed as to compliance of statutory requirements of Sec.138 of N.I. Act in filing the present complaint. Therefore on conjoint reading of entire oral and documentary evidence, their remains no doubt that the complainant had complied with all the requirements of Sec.138 of N.I. Act. This being the fact, as argued by the learned counsel for the complainant, in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available U/s.139 of N.I. Act is required to be drawn and shall presume that the cheque in question was issued towards discharge of legally recoverable debt. It is also to be 12 presumed that cheque was issued for consideration on the date as mentioned therein.
14. As argued by the learned counsel for the accused it is well settled principle of law through catena of decisions that, though the statutory presumptions available U/ss.118 and 139 of N.I. Act are mandatory in nature, they are rebuttable one. It is needless to say that when the complainant proves the requirements of Sec.138 of N.I. 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 shoulder of the complainant. It is also well settled law that to rebut the presumptions, the accused can also rely upon presumptions under the Evidence Act. 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 decision of the Hon'ble Apex court reported in (2006) 3 SCC (Crl.) 30, ILR 2009 (2) 1633 - (Kumar Exports Vs Sharma Carpets) and 2013 SAR (CRI) 373 - (Vijay Vs Laxman and another). Now the 13 question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
15. In view of the specific defence taken by the accused as against the claim of the complainant, now the evidence available on behalf of the accused is analyzed, in support of the defence of the accused persons, accused No.2 stepped into the witness box and deposed as to the defence taken. In addition to that he has also produced and got marked two purchase orders dated 18.4.2016 as per Ex.D1 and D2 and one cancellation of purchase order letter dated 30.9.2016 as per Ex.D3 in support of the defence. Now in the light of the defence taken by the accused as to issuance of blank cheque and misuse of the same as put up by the accused, on going through the evidence on record, as argued by the learned counsel for the complainant, the said defence of the accused is found to be without any basis, convincing and acceptable evidence. Though in support of the defence of the accused persons, they have produced three documents as aforesaid, none of the said document disclose that it was received either by the complainant or by M/s.Splar Machinery Pvt. Ltd., as put up by the accused. Absolutely there is no acceptable evidence to show that the accused had placed purchase order with M/s.Splar Machinery 14 Pvt. Ltd., for purchase of machineries as found in Ex.D1 and D2.
16. Further in Ex.D3 also there is nothing to show that the said cancellation letter was received by the complainant or by M/s.Splar Machinery Pvt. Ltd., as put up by the accused. Therefore on the basis of Ex.D1 to D3 it cannot be held that in the month of April 2016 the accused No.2 had placed purchase order for purchase of Solar Laminating and Cell cutting machine as put up by him. Further it is also to be noted that the accused has stated as payment of the advance amount but in that regard also absolutely there is no any convincing and acceptable evidence. If at all the advance amount was paid as put up by the accused, definitely he could have produced available documents in that regard and could have stated as to in what mode he had paid the said amount. The case of the accused in that regard is not at all clear and acceptable one. No doubt as argued by the learned counsel for the accused, DW.1 in his evidence stated as to how the cheque in question came to the custody of the complainant. But in this regard as argued by the learned counsel for the complainant, it is noticed that absolutely there is no any convincing and acceptable evidence to show that the accused No.2 had issued blank cheques in favour of M/s.Splar Machinery Pvt. Ltd., in connection with purchase order as put up by him. On the 15 other hand, even if the contents of Ex.D3 are analyzed, nowhere the accused had stated in the said letter as to issuance of two blank signed cheques and he had not sought for returning of the said cheques, though he had demanded for returning of the advance amount of Rs.18 lakhs as found in the said cancellation letter. If at all the blank cheques were given for purchase of the machineries as put up by the accused, definitely the accused No.2 being a prudent person sought for returning of the blank cheques also. Further it is also to be noted that admittedly in spite of the service of notice on the accused persons, they have not opted to issue any reply to the notice of the complainant. If at all the contention of the accused is true and genuine, definitely they would have issued proper reply to the notice got issued by the complainant that to the legal notice and could have taken appropriate legal action in that regard.
17. Along with the above aspects, on going through the evidence, it is noticed that admittedly M/s.Splar Machinery Pvt. Ltd., being the agent for two china companies, it only deals with installation and service of machineries provided by the said china companies. In this regard, the evidence of DW.1 is looked into, though DW.1 in his evidence stated as to purchase of machineries in the year 2011 through M/s.Splar Machinery Pvt. Ltd., his cross- examination clearly indicates that the accused No.1 16 company having import license imported the machineries by itself in the year 2011 and M/s.Splar Machinery Pvt. Ltd., only provided installation and service facility to the accused No.1 company. Therefore it is also clear that in the year 2011 also, the accused had purchased the machineries from the china company by their own and not purchased the said machinery through M/s.Splar Machinery Pvt. Ltd., as stated by the accused. As discussed supra, absolutely no convincing and acceptable evidence is produced to show that the accused persons have placed purchase order with M/s.Splar Machinery Pvt. Ltd., and no documents are produced to show that the M/s.Splar Machinery Pvt. Ltd., deals with purchase of machineries from the China companies apart from the installation and service. Even in this regard Ex.P13 i.e Memorandum of Understanding entered into between Jhuhai Baixin Machinery Co., Ltd., and M/s.Splar Machinery Pvt. Ltd., also does not disclose as to purchase of machineries by the M/s.Splar Machinery Pvt. Ltd., except provision for providing installation and service facility by the said company. Therefore viewed from any angles, the contention of the accused persons that accused No.2 had issued two blank cheques in favour of M/s.Splar Machinery Pvt. Ltd., so as to purchase the machineries as put up by them is found to be totally unbelievable and 17 unacceptable and thereby the first limb of the defence of the accused is liable to be rejected.
18. So far as second limb of the defence of the accused is analyzed, as already stated the accused have totally denied the claim of the complainant and so also the agreement and dissolution agreement entered into as put up by the complainant contending that the said agreements are created. On going through the complaint averments, it is clear that the claim of the complainant is based on agreement dtd.18.8.2015 and the dissolution agreement dtd.11.4.2016. But in this regard, it is pertinent to note that though the complainant has produced original agreement dtd.18.8.2015, he has not produced the original dissolution agreement dtd.11.4.2016. The complainant has just produced the Xerox copy along with his sworn statement marking the said Xerox copy as Ex.P2 without producing the original. However at subsequent stage, the complainant had made an effort by filing application U/s.91(2) of Cr.PC seeking direction against the accused to produce the dissolution agreement dtd.11.4.2016, but the accused have denied the very existence and possession of the said document with them. Therefore as argued by the learned counsel for the accused, the complainant has failed to produce the original Ex.P2 before this court though his claim is based on the said document. On going through the said 18 document, it is clear that the stamp paper was purchased by the complainant himself for preparing the said dissolution agreement and since the said document creates right in favour of the complainant as alleged, definitely the complainant must be the holder of the said original dissolution agreement if it was executed. Even the contents of the said document also do not disclose as to with whom the original of the said agreement is. Even the complainant either in notice or in the complaint or in the evidence nowhere stated as to where the original of the said dissolution agreement is. Even evidence of the complainant in this regard during the cross-examination is looked into, it is clear that even he is not aware as to where is the original of the said dissolution agreement is. In the absence of the original of dissolution agreement, on the basis of Xerox copy of the said dissolution agreement, the case of the complainant cannot be accepted.
19. So far as the contents of Ex.P1-agreement dtd.18.8.2015 is analyzed, as argued by the learned counsel for the accused, it is noticed that even for the said document also the stamp paper is found to be purchased by the complainant himself and page Nos.1 & 2 of the said document do not contain the signature of the parties except in page No.3. Further it is noticed that the alleged Ex.P1- agreement is found to be entered into between M/s.Enolar 19 Photovoltaic's & Renewables Pvt. Ltd., represented by accused Nos.2 & 3 and M/s.Splar Machinery Pvt. Ltd., represented by its Managing Director - the complainant herein. But in Ex.P1 even in page No.3 there is no seal of both companies. Further it is also noticed that in Ex.P1 there is description as to the mode of payment made to accused No.1 company by the M/s.Splar Machinery Pvt. Ltd. But to support the payment mode as stated in the agreement, there is no convincing and acceptable evidence. Even in the said agreement in the mode of payment column there is reference as to attachment of Annnexure - I, but no Annexure -I is found along with Ex.P1. Even no bills are produced by the complainant in support of the said document as stated in the said agreement itself. As argued by the learned counsel for the complainant to prove the amount paid to the accused No.1 company, the complainant has produced statement of account relating to his account as per Ex.P14. But on going through Ex.P14, it is clear that there is reference as to transfer of funds in favour of M/s.Enolar Photovoltaic's & Renewables Pvt. Ltd., to the tune of Rs.23 lakhs on different dates as found therein from the account of the complainant. But the contents of Ex.P1 and P14 are analyzed meticulously, once again they are not tallying with each other. In Ex.P1 it is clearly stated that the second party i.e M/s.Splar Machinery Pvt. Ltd., had paid 20 Rs.30,33,000/- to the first party i.e M/s.Enolar Photovoltaic's & Renewables Pvt. Ltd., in between 3.3.2015 and 1.4.2015, but the contents of Ex.P4 reveals that on 25.2.2015 itself Rs.8 lakhs was transferred to M/s.Enolar Photovoltaic's & Renewables Pvt. Ltd., from the account of the complainant. Therefore their arises serious suspicion/doubt as to the very contents of the agreement itself. Further if the contents of Ex.P1 are meticulously analyzed, as already stated there is no signature of the parties on page Nos.1 & 2 and there is signature of the parties without seal of the company in page No.3 of the said agreement. But on going through the contents of page Nos.1 to 3 of the said agreement their arises doubt as to whether page No.3 of Ex.P1 was the part & parcel of the said agreement itself or not.
20. As argued by the learned counsel for the complainant in support of Ex.P1, the complainant also examined one of the witnesses to the said agreement by name Thandaveshwara as PW.2 and in his examination-in- chief he has stated as to agreement dtd.18.8.2015 and dissolution agreement dated 11.4.2016 and payment of the amount of Rs.30,33,000/- as put up by the complainant. However on going through the entire evidence, it is clear that he is working under the complainant and found to be interested witness with the complainant. Even in his cross- examination is looked into, it appears that he is not aware 21 as to due execution of Ex.P1 itself. On going through his entire evidence, as argued by the learned counsel for the accused, the said witness is found to be interested witness in favour of the complainant and his evidence is not at all inspiring the confidence of the court so as to accept his evidence and much waitage cannot be given to his evidence at all.
21. At this juncture, it is also noticed that in the Xerox copy of the dissolution agreement dtd.11.4.2016 produced by the complainant there is reference as to investment agreement made on 3.3.2015 between the first accused represented by accused Nos.2 & 3 and the complainant and the said agreement is found to be dissolved under Ex.P2. But nowhere the complainant stated as to investment agreement dtd.3.3.2015. Therefore it is crystal clear that there is total suppression of the material facts by the complainant. No doubt as argued by the learned counsel for the complainant there is reference in Ex.P2 document as to agreement dtd.18.8.2015 i.e, Ex.P1. But as already stated Ex.P1 is found to be entered into between A-1 company represented by accused Nos.2 & 3 and M/s.Splar Machinery Pvt. Ltd., represented by the complainant being Managing Director. Therefore even if to some extent if Ex.P1 is accepted, as argued by the learned counsel for the accused, the very complaint filed by the complainant in his individual 22 capacity based on Ex.P1 is found to be not maintainable. If at all the claim of the complainant is based on Ex.P1, the complaint should have been filed on behalf of the M/s.Splar Machinery Pvt. Ltd., and not in the individual capacity of the complainant. Ex.P1 in any angle does not create any personal right in favour of the complainant. At this juncture, it is also noticed from the evidence of the complainant himself that he has filed one cheque bounce case basing on Ex.P1 and P2-agreements on behalf of the M/s.Splar Machinery Pvt. Ltd. Therefore it is crystal clear that the present complaint on the basis of Ex.P1 in the individual capacity of the complainant itself is not maintainable. It is also to be noted that as stated by the complainant himself they are two Directors to M/s.Splar Machinery Pvt. Ltd., and one Rajesh Hebbar was the Managing Director of the said company and the complainant became Managing Director of M/s.Splar Machinery Pvt. Ltd., only in the month of April 2017. This being the fact it is not understood how the complainant in Ex.P1 claimed his status as Managing Director of M/s.Splar Machinery Pvt. Ltd., as on the date of alleged Ex.P1. Therefore it is clear that there is total inconsistency and uncertainty in the case of the complainant. On going through the entire evidence, it is clear that on the basis of Ex.P1 & P2 the claim of the complainant cannot be accepted and even the very legality 23 of the said agreements is also found to be bubble on the water.
22. Therefore as discussed above, viewed from any angles on the basis of Ex.P1 and P2 it cannot be said that there is exist any legally recoverable debt in favour of the complainant as contended. As discussed earlier, though in this case the accused has failed to prove his defence and thereby to rebut the presumptions, the claim of the complainant himself found to be unacceptable one. It is clear that even the complainant has suppressed the real facts for the reason best known to him. The case of the complainant itself is found to be inconsistent and creates serious doubt as to his claim. This being the fact, the benefit of doubt goes to the accused. Hence under available evidence on file, the claim of the complainant as to existence of any debt or liability in his favour as put up by him cannot be accepted. It cannot be held that the complainant has proved the existence of legally recoverable debt as against the accused as put up by him and even complaint itself is found to be not maintainable. Under these attending circumstances, it cannot be held that the complainant has made out the offence punishable U/s.138 of N.I. Act as against the accused persons as contended. Therefore it goes without saying that the complainant is not entitled for the relief 24 sought for in this case. The complainant has failed to prove the Point Nos.1 to 3 in his favour and hence they are required to be answered in negative and answered accordingly.
23. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following....
ORDER Acting under Section 255(1) of Cr.PC accused persons are hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bond of accused persons stands cancelled. The cash security deposited by the accused persons are ordered to be refunded in their favour in accordance with law.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 20th Day of September, 2017) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 25 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. Santosh Kumar M.R
PW.2 : Sri. Thandaveshwara
Witnesses examined for the defence:
DW.1 : Sri. Ramesh
Documents marked for the complainant:
Ex.P1 : Agreement dtd.18.8.2015
Ex.P2 : Dissolution Agreement dtd.11.4.2016
Ex.P3 : Cheque
Ex.P4 : Bank endorsement
Ex.P5 : Legal Notice
Ex.P6 to 9 : Postal receipts
Ex.P10 to 12 : Postal acknowledgements
Ex.P13 : M.O.U
Ex.P14 : Statement of Account
Ex.P15 : Detailed Statement
Documents marked for the defence:
Ex.D1 & D2 : Purchase Orders
Ex.D3 : Cancellation of purchase order
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU