Bangalore District Court
M/S Micro Stream Global Services Pvt. ... vs M/S Ddnk Media Private Limited And ... on 26 December, 2024
C.C.NO.21033/2023
1
KABC030375562023
Presented on : 22-08-2023
Registered on : 22-08-2023
Decided on : 26-12-2024
Duration : 1 years, 4 months, 4 days
IN THE COURT OF THE XXVIII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
B.A.,LLB.,LL.M
XXVIII A.C.M.M., Bengaluru City.
DATED; THIS THE 26th DAY OF DECEMBER-2024
C.C.NO.21033/2023
Complainant: M/s.Micro Stream Global Services Pvt.,Ltd.,
R/by its Chief Executive Officer,
Mr.P.Kailasam, No.223, G.R.Arcade,
3rd Floor, Sampige Road, Malleshwaram,
Bangalore-560003.
Ph: 9945885555.
Email:[email protected].
(By Sri.A.Rajesh & Sri.D.Govardhan.,Advs.,)
V/S
Accused: 1. M/s. DDNK Media Private Limited,
No.250, Karthik Palace, OTC Road,
Cotton Pete Main Road, Bengaluru-560053.
2. Dr.P.K.Govind, Managing Director,
M/s. DDNK Media Private Limited,
No.250, Karthik Palace, OTC Road,
Cotton Pete Main Road, Bengaluru-560053.
And also at: No.5, N.M.Lane, Cottonpet,
Bengaluru - 560053.
Ph.No.9742622982.
C.C.NO.21033/2023
2
3. Mrs.Nagaratna Govind, Director,
M/s. DDNK Media Private Limited,
No.250, Karthik Palace, OTC Road,
Cotton Pete Main Road, Bengaluru-560053.
And also at: No.450, OTC Road, Cottonpet
Main Road, Bengaluru - 560053.
(By Sri.Suresh Charangol & Anr.,Advs.,)
:JUDGMENT:
This case arises out of the private complaint filed by the complainant against the accused under section 200 of Cr.P.C., for an offence punishable under section 138 of Negotiable Instruments Act.
2. The case of the complainant's in brief is as under:
It is the case of the complainant is that the complainant company is a engaged in the business of content aggregation development and marketing including films, serials etc., in the name and style of "Kalki". Further the accused No.1 claims to be a broadcaster and carrying on their business in the name of NKR TV. It is further stated that the accused had entered into an agreement dated: 3rd July 2023 with the complainant company for content transfer of his programs, movies etc. as per annexure, annexed to the agreement. As per the terms of agreement the accused had agreed to pay a sum of Rs.50 lakhs towards non- refundable deposit for usage of the contents in the C.C.NO.21033/2023 3 accused's channel. As per the terms of agreement 50% of the payment was agreed to be made while signing the agreement and the balance amount was agreed to be paid on or before 10th July 2023. Further as per the terms of the agreement, the complainant's company handed over all the contents in tapes, discs and other formats which were duly received by the accused. It is further stated the after several follow ups the accused had issued the cheque No.000012 dated: 11.07.2023 for Rs.23,00,000/- drawn on IDFC First Bank, K.G.Road Branch, Bangalore in favour the complainant. The complainant had presented the said cheque for realization through its banker M/s. ICICI Bank, Kumara Park Branch, Bangalore. But the said cheque was dishonored with an endorsement dated:
12.07.2023 as "Payment Stopped by Drawer" and the complainant received the bank memo on 13.07.2023.
Thereafter, on 18.07.2023 the complainant got issued a demand notice to the accused its counsel calling upon them to make payment of the cheque within 15 days from the date of receipt of the said notice. Inspite of receipt of the legal notice, the accused neither reply to the notice nor paid the cheque amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court on 16.08.2023.
C.C.NO.21033/2023 4
3. After the complaint was filed, the cognizance of the offence cited therein was taken. Sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 21.08.2023 to register the case in Register No.III and it was registered as a criminal case.
4. Thereafter, summonses were issued to the accused and they have appeared before the court through their counsel and secured bail. They were furnished its necessary papers as complied under section 208 of Cr.P.C. Thereafter, the plea of the accused was recorded by the court. They have pleaded not guilty and claimed to be tried.
5. The complainant in support of its case, have examined its Chief Executive Officer as P.W.1 and got marked 18(a) documents at Ex.P.1 to 18(a) and closed its side.
6. After closer of the evidence of the complainant, the statement of the accused under section 313 of Cr.P.C., was recorded. They have denied the incriminating evidence appearing against them. In their defence, the accused No.2 and 3 were examined as DW.1 and 2 and got marked 03 documents at Ex.D.1 to
03.
7. I have heard the arguments on both the sides and perused the written arguments filed by the leaned C.C.NO.21033/2023 5 counsels for the complainant and the accused and also perused the material placed on record.
8. Upon hearing the arguments and on perusal of the material placed on record, the following points arise for my consideration:
1.Whether the complainant proves the existence of legally enforceable debt/liability.?
2. Whether the complainant further proves that the accused had issued the cheque-
Ex.P.1, towards the discharge of the said legally enforceable debt/liability.?
3.Whether the complainant further proves that the cheque-Ex.P.1 was dishonored for the reasons "Payment Stopped by Drawer" and thereafter the accused had failed to repay the same within the statutory period, inspite of receipt of legal notice.?
4.Whether the accused have thus committed an offence punishable under section 138 of N.I.Act.?
5. What order?
9. My answers to the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: As per final order, for the following:
:REASONS:
10. POINT NO.1 AND 2: These two points are inter-related to each other and finding given on any one C.C.NO.21033/2023 6 point will bearing on the another. Hence, in order to avoid repetition of facts and evidence, I have taken these points together for common discussion. It is the case of the complainant is that, he was acquainted with the accused. Further the complainant is a engaged in the business of content aggregation development and marketing including films, serials etc, in the name and style of "Kalki". Further the accused No.1 claims to be a broadcaster and carrying on their business in the name of NKR TV. The accused had entered into an agreement with the complainant for content transfer of his programs, movies etc. as per annexure. As per the terms of agreement the accused had agreed to pay a sum of Rs.50 lakhs towards non-refundable deposit for usage of the contents in the accused's channel. As per the terms of agreement 50% of the payment was agreed to be made while signing the agreement and the balance amount was agreed to be paid on or before 10th July 2023. As per the terms of the agreement, the complainant's company handed over all the contents in tapes, discs and other formats which were duly received by the accused. Aafter several follow ups the accused had issued the cheque in question in favour the complainant. The complainant had presented the said cheque for realization through its banker. But the said cheque was dishonored as "Payment Stopped by Drawer". Thereafter, the complainant got issued a demand notice to the accused through its counsel C.C.NO.21033/2023 7 calling upon them to make payment of the cheque. Inspite of receipt of the legal notice, the accused neither reply to the notice nor paid the cheque amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court.
11. At this juncture, it is necessary to go through the provisions of N.I.Act before proceeding further. The provisions under section 118(a) and 139 of the Act, 1881 are extracted and they reads thus;
"118. Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:-
(a). of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
(b). as to date: that every Negotiable Instrument bearing date was made or drawn on such date;
"139.Presumption in favour of holder:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section C.C.NO.21033/2023 8 138 for the discharge, in whole or in part, of any debt or other liability."
12. On plain perusal of the provisions under section 118(a) and 139 of the N.I.Act., as extracted herein above, it can be seen that initially the presumptions constituted under these two provisions favour the complainant. However, it is open to an accused to raise a defence to rebut the statutory presumptions. An accused can raise a defence, wherein the existence of legally enforceable debt or liability can be contested.
13. It is also well established that an accused for discharging the burden of proof placed upon them under a statute need not examine themselves. They may discharge their burden on the basis of the materials already brought on record. An accused have constitutional rights to maintain silence. Standard of proof on part of the accused and that of the prosecution in a criminal case is different. The prosecution must prove the guilt of an accused beyond all reasonable doubts, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities".
14. Under the light of above extracted provisions of the Act, I have perused the oral and documentary evidence placed on record. In support of the case, the complainant's have examined its Chief Executive C.C.NO.21033/2023 9 Officer as P.W.1 and 18(a) documents were marked at Ex.P.1 to 18(a). In the chief examination P.W.1 has repeated the contents taken by the complainant in the complaint. Ex.P.1 is the cheque issued by the accused in favour of the complainant company dated:
11.07.2023 for Rs.23,00,000/-. Ex.P.1(a) and 1(b) are the signatures of the accused No.2 and 3. Ex.P.3 is the bank memo dated: 12.07.2023 informing the dishonor of the cheque as "Payment Stopped by Drawer". Ex.P.3 is the office copy of legal notice dated: 18.07.2023.
Ex.P.4 are the postal receipts. Ex.P.5 is the postal acknowledgment. Ex.P.6 to 9 are the returned postal covers. Ex.P.6(a) to 9(a) are the returned legal notices. Ex.P.10 is the complaint. Ex.P.11 is the certified copy of the board resolution. Ex.P.12 is the print out copy of Agreement held between the accused and the complainant. Ex.P.13 is the Printout copy of the e-mail correspondence between the complainant and the accused. Ex.P.14 is the Photo. Ex.P.15 is the certificate under section 65(b) of Indian Evidence Act. Ex.P.16 is the Addendum agreement dated: 16.06.2018. Ex.P.17 is the Board resolution. Ex.P.18 is the Ministry of Corporate affairs. Ex.P.18(a) is the Certificate under section 65(b) of Indian Evidence Act.
15. I have perused the exhibits on which the complainant have placed their reliance. On perusal of the exhibits, it is clear that cheque in question was C.C.NO.21033/2023 10 presented for encashment within its validity. The bank endorsement with a shara "Payment Stopped by Drawer". The complainant issued a legal notice within one month from the date of receipt of memo. The one notice was served and other notices were returned as "absent" on 21.07.2023 and 22.07.2023 respectively. The complaint was filed on 16.08.2023, which is within limitation. The transaction with the complainant is not seriously disputed. The signatures on the cheque- Ex.P.1 is admitted. Therefore, the documents on record clearly show that the complainant have complied the ingredients of section 138(a) to (c) of the N.I.Act. Therefore, the presumptions under section 118 and 139 of the N.I.Act arise in favour of the complainant. The presumptions are rebuttable and the burden is on the accused to rebut the presumptions. The presumption is that the cheque was issued for legally enforceable debt/liability. However, actual existence debt/liability can be contested. The accused can rebut the presumptions by raising probable defences and proving it relying on the evidence of the complainant or by leading their direct evidence.
16. The case was seriously contested by the accused and the service of notices was disputed. The notices were returned as "absent" on 21.07.2023 and 22.07.2023 as per Ex.P.6 to 9. The counsel for the accused cross-examined PW.1 in respect of non C.C.NO.21033/2023 11 service of notice. But PW.1 denied the same. Further contended that the notice sent to the accused not served'; that the accused have no knowledge of the notices as its were not served on them; that the accused did not give reply notice as the notices were not served on them; that they did not produce any documents to show that the accused were not residing and not doing business at the said addresses, the notices were not served on them and that the accused did not issue reply notice as they were not residing and doing business at the said addresses. The counsel for the accused argued that no legal presumption can be raised as the notice was sent to the wrong address. On the other hand, the counsel for the complainant cross examined DW.1 and 2 in length in respect of addresses of the accused, service of notice. They admitted that the addresses. They further admitted that they have not given the reply notice. When the notice at Ex.P.3, wherein the names of the accused is appearing, was confronted.
17. On perusal of Ex.P.3, it is clear that the names of the accused and two addresses are appearing in the notices. The same notices were sent to the accused through separate RPAD. The accused not given reply. There is no evidence on record to show that the accused were residing and doing business at some other address other than the addresses mentioned in C.C.NO.21033/2023 12 the notice at Ex.P.3. The above discussion clearly shows that the addresses mentioned in the notice is the correct addresses of the accused. As the notice was given to the accused and the same notices were sent to them through separate RPAD, an inference can be drawn that the notices were served on the accused. Further the address mentioned in the notice being the correct address of the accused, the presumption as per Section 27 of General Clauses Act can be drawn. It states that the notice sent through post shall be deemed to be served, if it is properly addressed to a person to whom it is sent. Therefore, even though the notice sent to the accused through separate RPAD and returned with a postal shara 'absent, it is to be considered as deemed service of notice. Even otherwise as per the judgment of the Hon'ble Supreme Court of India has held in C.C Alavi Haji V/s Palapetty Muhammed and another, reported in 2007 AIR SCW 3578, wherein it has been held para No.17 as under;
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is C.C.NO.21033/2023 13 liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under section 138, by ignoring statutory presumption to the contrary under section 27 of the G.C.Act and section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the 'giving of notice' in the context of Clause (b) of the proviso was the same as the 'receipt of notice' a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
18. In a nutshell it can be said that the statutory notice is an opportunity given to the accused to make payment and avoid the consequences of 138 of N.I.Act. In the case on hand, the summonses issued to the accused and thereafter they appeared before the court and contested the case by taking all probable defences. Therefore they cannot take the shelter of statutory requirement of service of notice to avoid the consequences of section 138 of N.I.Act. The complaint was filed on 16.08.2023, which is within limitation. The accused admitted the signatures in the cheque. It is their defence that one Ramesh Babu stole 03 signed blank cheques while issuing cheques to some persons. Therefore, the documents on record clearly show that the complainant have complied the ingredients of C.C.NO.21033/2023 14 section 138(a) to (c) of the N.I.Act. Therefore, the presumptions under 118 and 139 of the N.I.Act arise in favour of the complainant. The presumptions are rebuttable and the burden is on the accused to rebut the presumptions. Once the issuance of cheque and signature are proved, the presumption arises in respect of the fact that the cheque was issued for legally enforceable debt/liability. The accused can rebut the presumption by raising probable defence and proving it relying on the evidence of the complainant or by leading their direct evidence.
19. In order to prove their defence, the accused examined themselves as DW.1 and 2. In his chief examination D.W.1 has deposed the defence taken by them. Further deposed that first he don't know who the complainant company. The complainant company was introduced to him by Ramesh Babu. The Ramesh Babu came to him and said that he will bring Kailasam and two others with him. Ramesh Babu told him that Kailasam has the contents and take them and help him. Then Kailasam used to force him that the contents they have are HD quality and take them. Then he agreed and told them to take them. Further deposed that the next day he brought it in a box and handed over it to him and took a photo of it. Kailasam was accompanied by Ramesh Babu and two others. Further deposed that Ramesh Babu had been coming and going to him C.C.NO.21033/2023 15 about 20 days and he had seen where he kept the cheques. Further deposed that on the day he came to give the contents, Kailasam asked him to give the cheque, but he said that he will check the contents with the technician as he will not give the cheque now. It takes about 10 days to verify the contents. Further deposed that the technician said that contents are not good and they will not have any copyrights. Then he called the Kailasam and asked about the copyrights, then he said they would give it, but did not give any documents about it. Further deposed that Ramesh Babu has taken his three cheques, but he has not given any cheques to the complainant company, himself and the accused No.3 signed the cheques and the Ramesh Babu taken 03 cheques, when he went to give the cheques to someone else, when he checked the cheques he found that Ramesh Babu had taken the cheques. Further deposed that he has not signed Ex.P.12 and signature on Ex.P.12 is not his signature. Further deposed that the notice sent by the complainant company has not been served on them, so they have not given any reply to the said notice. The complainant company misused their cheque and filed this false case. He marked 03 documents at Ex.D.1 to
3. Ex.D.1 is the Kalki annexure content analysis report. Ex.D.2 is the Movie list. Ex.D.3 are the certified copy of the complaint in CC.No.11697/2017 and all exhibits. Therefore, he prays to dismiss the case and acquit C.C.NO.21033/2023 16 them.
20. D.W.2 in her chief examination has deposed the defence taken by them. Further deposed that she has nothing to do with the transaction of this case. Further she has not signed any agreement. She has nothing to do with the cheque presented in this case. She has not given any cheque to the complainant company. The notice sent by the complainant company has not been served to them, so they have not given any reply to the said notice. The complainant company has misused their cheque and filed a false case against them. Therefore, she prays to dismiss the case and acquit them.
21. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of legally enforceable debt/liability, for which the cheque came to be issued. The learned counsel for the complainant has argued that from the evidence placed on record, the fact that the complainant is engaged in the business of content aggregation development and marketing including films, serials etc, in the name and style of "Kalki". Further argued that the accused No.1 claims to be a broadcaster and carrying on their business in the name and style of NKR TV. It is argued that the accused had entered into an agreement with the complainant company as per Ex.P.12 for content transfer of his C.C.NO.21033/2023 17 programs, movies etc., as per annexure to the agreement. Further as per the terms of the agreement the accused had agreed to pay a sum of Rs.50 lakhs towards non-refundable deposit for usage of the contents in the accused's channel and as per the terms of the agreement 50% of the payment was agreed to be made while signing the agreement and the balance amount was agreed to be paid on or before 10.07.2023. Further argued that as per the terms of the agreement, the complainant's company handed over all the contents in tapes, discs and other formats more than Rs.15,00,00,000/- to the accused, which were duly received by the accused. It is further argued that after receipt of contents the accused failed to pay the said amount. Further argued that after the repeated request made by the complainant the accused had issued the cheque-Ex.P.1 in favour of the complainant. Further argued that the accused have not denied Ex.P.1 being their cheque drawn on the account of the accused No.1 and signatures appearing on the said cheque. When the signatures is not disputed, the presumption under section 139 N.I.Act is to be drawn in favour of the complainant. The accused have failed to elicit anything in the cross examination of P.W.1 to disbelieve the said evidence. The defence have failed to rebut the presumption under section 139 N.I.Act.
22. He further argued that the accused have failed C.C.NO.21033/2023 18 to produce any believable evidence that one Ramesh Babu stole 03 signed blank cheques and misused the one of the cheque in collusion with the complainant and why the accused have not returned back the same is not clear. He further argued that the accused failed to produced any documentary evidence regarding prove their defence. Further argued that to prove section 139 of N.I.Act, there is a presumption that the cheque has been issued for discharge of legally enforceable debt/liability. In the present case, the accused have not disputed Ex.P.1 being their cheque drawn on the account of the accused No.1. The said presumption is available to the complainant. He has further argued that the accused had failed to prove the very fact that one Ramesh Babu stole 03 signed blank cheques and misused the alleged cheque in collusion with the complainant. Moreover, under section 118 of N.I.Act, there is a presumption that the Negotiable Instruments is drawn on the date, for the amount and in favour of the person as shown in it. It is for the accused to rebut the said presumption. But, in the case on hand no such evidence forthcoming. It was also argued by him that as per the defence by the accused that one Ramesh Babu stole three signed blank cheques and misused the one of the cheque. As such, very defence of the accused is not believable. He further argued that the accused have not produced any documentary evidence to prove their defence. Upon careful perusal of the C.C.NO.21033/2023 19 entire evidence of records both the oral as well as documentary evidence the complainant have proved their case. It was further argued that the accused seriously disputed that the complainant have misused the alleged cheque in collusion with Ramesh Babu and filed false case against them. However, the accused have miserable failed to prove the said fact.
23. The learned counsel for the complainant has filed written argument. In his written argument reiterate the facts of the complaint. Further submits that the chief executive officer of the complainant company had entered the witness box as PW.1 and has filed its documents as Ex.P.1 to 18. The counsel for the accused had cross examined him and nothing could be elicited from the mouth of PW.1 in order to rebut the presumption which is available under section 139 of N.I.Act. In order to drag on the matter, the accused have come up with false and frivolous documents which were marked as Ex.D.1 to 3 which are not related to the subject case and hence, it is crystal clear and it is beyond all reasonable doubt, the complainant has proved its case. Further submits that the cross examination of PW.1 at page No.4 at 7th Lane, that the contents were handed over to the accused company on 03.07.2023" i.e., on the date of entering to the agreement and further the defence counsel has taken a stand that "the photograph at Ex.P.14 was taken by one C.C.NO.21033/2023 20 Ramesh Babu and that there is no signature of accused No.3/DW.2 and the signature of the accused No.2 varies in the subject cheque and at Ex.P.12 Agreement dated: 03.07.2023. Further went on to question with regard to the descriptions and details of the contents given to them, and pose further question to PW.1 with regard to the Annexures and its details annexed to the agreement at Ex.P.12, But the defence have disputed the execution of Ex.P.12. This means that the defence have admitted the execution of the agreement at Ex.P.12 between the parties herein. The complainant has kept it words, but the accused have failed to adhere to the terms of the agreement dated:
03.07.2023.
24. It is further submits that at page No.6 of the cross examination of PW.1, the counsel has posed the questions of admissions of the accused to PW.1 that as per Ex.P.12. "the accused have not paid 50% of the amount agreed and the remaining balance amount has also not been paid before 10.07.2023 and also the accused have not adhere to the terms and conditions of the agreement dated: 03.07.2023 and hence, the agreement will be cancelled." These questions were posed to PW.1 only in order to escape from the truth as well from paying the liability owed towards the content transfer made by the complainant to the accused, which they are legally liable to pay. Nowhere in the C.C.NO.21033/2023 21 entire agreement it is recited that the contents will be of "H.D Quality". Now, in order to avoid from payment of agreed consideration which is non-refundable, the accused have taking untenable defences. This shows the attitude of the accused. Such acts has to be deprecated at the threshold itself at the hand of this court. "No prudent person will going to hand over the original contents to a third party without any payment of consideration and without an agreement to that effect".
Further submits that it can be seen cross examination of PW.1 that after due verification of all the contents and its copyrights and respective contents purchases made from whom, what are the actual costs, how the transactions were took place between the complainant and its contents providers. This shows that after through enquiry and verification, the accused company have entered Ex.P.12 agreement and after due verification of its originality of the contents, the accused company have issued the subject cheque to the complainant. The accused have not taken the untenable defence that one Mr.Ramesh Babu has theft the subject cheque and handed over to the complainant and further one step ahead took the defence that no any agreement have been entered into between the complainant and the accused, the defence was that "as per the terms of Ex.P.12, the subject cheque was issued and subsequent to its dishonor, the instant case came to be filed" an in further cross examination went C.C.NO.21033/2023 22 to the extent of denying the existence of the complainant company itself, inspite of producing all the relevant document by way of further examination in chief of PW.1.
25. It is further submits that the accused inspite of service of legal notice have not bothered to give reply or police complaint with respect to the lost cheque, when DW.1 is very well educated, having educational qualification of B.E., M.I.E., and LL.B., and Ph.D, having aged more than 78 years of ripe age. In the examination in chief DW.1 who is the chairman of the accused company admits at 9th line that (Kannada translated) "next day in one box PW.1 bought the contents and that box was handed over to him and a photograph-Ex.P.14 was also taken to that effect. In the cross examination of DW.1 admits the address mentioned in Ex.P.5 postal acknowledgment is correct, which was duly served on 22.07.2023. In the second page of cross examination DW.1 shows his ignorance as to who gave instructions or letter to his banker with regard to "stop payment" and also admits, only after receipt of summons from this court, DW.1 came to know about the "Stop Payment". Then nothing prevented the accused to pay his liability. Owed to the complainant with respect to receiving of original contents as per Ex.P.12 or nothing prevented the accused for returning of the said original contents to C.C.NO.21033/2023 23 complainant and ask for return of subject cheque. In the same page DW.1 admits subject cheque of belongs to their company and signature on it were of his (DW.1) and the accused No.3. Further in continuation admits Ex.P.14 photographs that he and his daughter Rekha @ Varalakshmi and another person i.e., PW.1 were present and the said photograph-Ex.P.14 was with respect to receiving the original contents from the complainant company-PW.1 by them and the said photographs was taken on 03.07.2023 i.e., the date on which Ex.P.12 came to be executed, but, cleverly denies the execution of Ex.P.12. D.W.1 further admits his cross examination that after coming to know about the fact of alleged misuse of subject cheque, DW.1 has not taken only legal action and he has no hurdle in taking legal action against the complainant complainant company.
26. It is further submits that DW.1 in his cross examination dated: 21.10.2024 he admits that "he does not have any information about the lodging of F.I.R, which pending adjudication before the 31 st Additional Chief Judicial Magistrate at Bengaluru against one Ramesh Babu and others and also admits that no cheque numbers or details of the cheques were not mentioned and also admits that in his examination in chief also he has not averred to that effect and also further admits that he has not given complaint with C.C.NO.21033/2023 24 regard to lost of cheques". Further admits that he has no impediment to return back of original contents saying that quality is of not good and to send at least an email to the complainant company to the effect". The accused have examined DW.2-Smt.Nagarathna, who is the wife of DW.1 as well as the full time director of the accused company. DW.2 has taken all false plea and untenable defence in her examination in chief. But in her cross examination DW.2 admits that "she is the joint signatory to the subject cheque and admits her signature and address mentioned in the cause title of the complaint. DW.2 went to the extent of who has filed the instant complaint and she also admits that she does not know for what reasons, the subject cheque came to be dishonored and she has not given any instructions to the bank for stop payment and finally she plead her ignorance as to how the subject cheque came in possession of the complainant. Further submits that the document produced as Ex.D.1 and its annexure is concocted document created in the office of the accused in order to support their defence that the contents given to them under Ex.P.12, were of low quality and which document has not been signed by any authorized technician or laboratory and signatory to the said document was not been examined and Ex.D.2 is the list of contents given to the accused as per Ex.P.12 and after verification of the contents given to the accused, have created the list in their office and C.C.NO.21033/2023 25 nothing has been mentioned with regard to quality of the contents. This itself shows, that the accused have duly verified and enquired the contents given to them under Ex.P.12 as per Ex.P.14 photographs. But inspite of the receiving of the original contents, the accused have not bothered to pay the amount as per the terms of Ex.P.12 agreement.
27. It is further submits that only in order to drag on the matter, the accused have kept quite for all these days, and not even bothered to appear regularly before this court nor they have produced any documents in support of their case in order to substantiate their cook up case. The accused are trying to drag on the matter as long as possible in order to escape from immediate payment of the amount and they may further drag on the matter inspite of if there being an conviction order against them and try to see that the amount may be paid at later stages of the proceedings without any sort of interest or penal interest and are trying to misuse of the due process of law and the courts and not even bothering to return the original contents which they were holding over to the complainant company. Further grievance of the complainant is that the complainant could not able to sale/transfer the contents to other third parties, as the accused company has retained the original hard disk with them due to which the complainant company is suffering huge loss in its C.C.NO.21033/2023 26 business. Inspite of repeated request and e-mails the accused themselves have admitted for having issued the subject cheque to the complainant. Further the complainant has admitted the execution of Ex.P.12 and Ex.P.1 subject cheque "content sharing MOU" in its email attachment sent to the complainant. In the cross examination of DW.1 has denied the name of their company auditor, which was clearly reflected the extract printout take from the official website of Ministry of Company affairs, Government of India. These documents would go to show the conduct of the accused in the instant case and how, they have trapped the complainant in order to grab the original contents of the complainant company. The accused company not at all entitled to any sort of mercy while imposing the penal clauses as per section 138 of N.I.Act. Hence, he prays to convict the accused and the double amount of the subject cheque.
28. The learned counsel for the accused has argued that there was no any legally enforceable debt/liability to the complainant from the accused for which the cheque was issued. Further argued that the accused is not liable or due to pay any amount, much less the amount claimed by the complainant in the complaint. It is further argued that the accused has not issued the alleged cheque in favour of the complainant to discharge any liability as alleged by the complainant.
C.C.NO.21033/2023 27 The complainant is not entitled for any of the reliefs, much less the reliefs sought in the complaint. The learned counsel for the accused it is further argued that the case of the complainant is not maintainable either in law or on facts. It is further argued that the complainant has falsely stated in the complaint that the accused had entered an agreement as per Ex.P.12 with the complainant company for contents transfer of his programs, movies etc. Further as per the terms of the agreement the accused has agreed to pay sum of Rs.50,00,000/- towards non refundable deposit for use of the contents in the accused's channel. The complainant has falsely stated in the complaint that after handed over all the contents in tapes, discs and other format by the complainant and the accused were duly received the same and thereafter the accused have failed to pay the said amount to the complainant. It is further argued that the complainant has created a false story only for the purpose of this complaint and to harass the accused. It is further argued that the accused have not issued the alleged cheque in favour of the complainant with an assurance that the said cheque would be honored on it presentation. It is further argued that the accused not issued any cheque for payment of any due amount in favour of the complainant. Further argued that one Ramesh Babu stole 03 signed blank cheques. The complainant have misused the alleged cheque in collusion with Ramesh C.C.NO.21033/2023 28 Babu and presented the same through its banker and filed false case against the accused only to harass the accused and to extract money from the accused.
29. The learned counsel for the accused has filed written argument. In his written argument reiterate the facts of the complaint. Further submits that the accused appeared before this court, through his counsel and taken defence by denying the averments made in the complaint in respect of the said cheque-Ex.P.1 was issued by this accused for discharge of legal liability to the complainant. Further it was also contended by the accused that there was no any existence of legally enforceable debt or liability with the complainant. In fact this accused never executed any kind of agreement with the complainant as well as nor issued any cheque in favour of the complainant and not signed either in the agreement or notice acknowledgment and same was not duly served, hence the question of alleged cheque not issued to the complainant company, as such legal enforceable debt or liability does not arise at all. The said content transfer agreement dated: 03.07.2024 was produced by the complainant same was marked as Ex.P.12. The complainant has produced the xerox copy of Ex.P.12 the original agreement was purposefully withhold by the complainant for his convenience. The xerox copy of the agreement was marked, hence, it is subject to proof and relevancy, in the absence of C.C.NO.21033/2023 29 original agreement, this court may not take any adjudication in the matter. The complainant has failed to say that where is the original agreement. Hence, mere production of the xerox copy will not be considered to mark as exhibits without supporting valid reason under the provision of section 65 of the Indian Evidence Act. On this ground alone the complaint is liable to be dismissed. Further submits that the said contents transfer agreement was also not registered before the registrar nor before the notary and without having witnesses. That itself give suspicious with regard to the existence of the agreement and sufficient to say that it is fabricated document. Hence, that document cannot be considered for any kind of legally enforceable debt/liability. Further submits that Ex.P.1 i.e., cheque was not issued by these accused to discharge legal liability with the complainant. The main contention by the complainant is that Ex.P.1-cheque was issued towards discharge of legal liability. But in fact this accused specifically denied the same saying that there was no any legal debt or loan liability with the complainant.
30. It is further submits that the defence of the accused is that one Ramesh Babu introduced by the complainant and seeks to help him by obtaining contents which were HD qualities. Hence, agreeing the same asked to come along with contents. On next day C.C.NO.21033/2023 30 they (i.e., Complainant, Ramesh Babu and two others) come with one box and given that box to the accused and obtain photo will receiving the box. Hence, thereafter Ramesh Babu coming to the accused office frequently approximately for the past 20 days, as such he know where the accused kept the cheque. After that the complainant demanded cheque. The accused refused to give cheque, due to verify the contents by their technician and also demanded for title of copy right to the said contents. In response the complainant says he will bring title in future. The accused asked same should be issued by the Central Board of Film certificate by the Government of India. But the complainant not yet produced the same. But they turned up to provide title to the copy rights to the contents. Recently while issuing the cheque to the some other person, then only the accused realized that Ramesh Babu stole 3 signed blank cheque while issuing cheque to someone persons. Hence, this accused has specifically denied there was no any debt or any loan received from the complainant. Further submits that to verify the contents of episodes fiction and nonfiction, it is required minimum 13 days if continuously 24 hours for a day without rest for serial because it has more than one thousand serials and to verify movie it required minimum 75 to 80 days if continuously 24 hours for a day without rest. When such being the case it is not possible to verify the C.C.NO.21033/2023 31 contents within a couple of days as deposed by the complainant is not possible. The complainant further submits that he himself director, producer of those movies and serials. But the complainant not shown any kind of title with regard to the copyrights as the complainant is the owner of those films and serials. This itself is sufficient the complainant deposing false, as a prudent man not produce 1000 of movies within in couple of years. The complainant even not known any actor, director, producer name. If he himself owner of those contents, he very well known all those aspects. Hence, the accused produced those documents and same as marked as Ex.D.2 which clearly reflects that these movies are introduced in year 1941, 1953, 1979 etc., thus he is not owner of the complainant's movies. On this count also the present complaint is liable to be dismissed as the complaint deposes false with regard to ownership of the contents. The accused also produced Ex.D.1, which is contents analysis report. This itself sufficient that logo has been reflected in all movies i.e., reality programs carry in Kalki Logo. Missing episodes are more than 1000 programs and movies are not in good quality and they are very poor quality, all are old program.
31. It is further submits that the complainant visited him at the accused office and asked him to issue cheque but the same was rejected by the C.C.NO.21033/2023 32 accused as title/owner of the copyrights were not given by the complainant. Hence, the cheque taken by the complainant representatives i.e., Ramesh Babu i.e., Ex.P.1 without filing/mentioning the date and other particulars in the cheque. Therefore, the cheque belongs to the accused was taken possession by the complainant on illegal method with a malfide intention and preplanned. Therefore, there was no any payment/consideration was received by the accused made on the alleged cheque amount. From this circumstances the accused has placed his rebuttal evidence to rebut the presumption that there was no any legally enforceable debt. Further to corroborate the same, the complainant has relied upon agreement which was marked Ex.P.12 is the contents transfer agreement which was mentioned in the agreement. But the existence of the agreement was denied by the accused. Hence, the complainant has to prove the same with beyond reasonable doubts with supporting documents. On the other hand if the said agreement is in existence, then there is an obligation upon the complainant, as per the content transfer agreement, the complainant has to approaches the remedy and dispute to be resolved before the sole arbitrator. As per the clause 15 and 16 of the said contents transfer i.e., Ex.P.12 and under the hear of Arbitration and Consultation Clause 15 to 18. In his written argument he reiterated the Arbitration and Consultation clause 15 C.C.NO.21033/2023 33 to 18 in detail. Further submits that from the above para it is very much clear that all disputes arising out of the said alleged agreement parties have clearly admitted their dispute will be solved only on arbitration. Moreover the complainant based on Ex.P.12 same was admitted by the complainant and cheque was collected by the complainant from third party i.e., Ramesh Babu on the basis of this content transfer agreement. Therefore, admittedly, the dispute arises between parties in this present complaint on the basis of content transfer agreement i.e., Ex.P.12. Therefore, under clause 15 to 17 of the content transfer agreement the present complaint is not maintainable against this accused. The complainant has to approach proper forum for the recover of the amount.
32. It is further submits that according to the complainant in his evidence while cross examination of the complainant, the complainant has specifically states that, there was an arbitration clause. But, the complainant has failed to approach appropriate forum. Therefore, there was no any arbitration conducted as alleged in their evidence. When such is the contention by the complainant, then question of dispute does not arise at all. As such question of issuing cheque also does not arise at all. Further submits that regarding service of statutory legal notice is concerned, this accused has not at all received notice personally, on C.C.NO.21033/2023 34 verification does not bears the signature of the accused, except address and the complainant has failed to depose before this court or in the complaint when the statutory notice was duly served i.e., date of service has not been stated. Therefore, when statutory notice was not personally served, the complaint is not at all maintainable under 138 of N.I.Act. On this count alone the complainant is not liable to be dismissed. In this regard the he relied upon the citations Karmali V/s.Marino Anothony Rodrigus and another, 2010 (1) DCR 142 (Bom), K.R.Indira V/s. Dr.G.Adinarayana 2003 (7) Supreme 741, 2003 SCC (Cri) 2002; 2003 (4) CCR 204 (SC), AIR 2003 SC 4689; 2004 Cri.L.J 5 (SC), M.D.Thoman V/s P.S.Jalel (2010) 3 MLJ (Cri) 556 (SC); 2009 (14) SCC 298, K.N.Kandaswamy Gounder V/s. Dhamodharam.
33. It is further submits that the complainant in the further cross examination stated that liability is based through content transfer agreement. Therefore, when such clear admission is there regarding not lending the loan to the accused it does not attract any existence of legally enforceable debt and say of the complainant that repayment of the same the accused has issued a cheque is absolutely false story. Therefore, it does not attract under the provisions of section 138 of N.I.Act. Further as per the agreement 50% should be paid while signing the agreement and remaining after execution of C.C.NO.21033/2023 35 agreement i.e., on or before 10.07.2023. But as per the complainant deposition the accused not paid any kind of amount before the execution of agreement. Hence, question of issuing of the cheque does not arise at all. But the alleged cheque amount mentioned is Rs.23,00,000/- that to specifically complainant says that to discharge the amount the cheque was issued. Therefore, there is no any amount of transaction and there is an ambiguity as well as evidence adduced by the complainant. Further submits that the accused person specifically denied, any amount paid as per the agreement at the time of signing agreement i.e., Ex.P.12. In this regard the complainant specifically says in the cross examination that the complainant has not paid any amount before signing the agreement. When such being the case even if the complainant is proved i.e., Ex.P.12 when it is not acted upon the parties is concerned the said agreement is not having any sanctity in the eye of law and same is not enforceable against the accused. On this ground alone the complaint is liable to be dismissed.
34. Further submits that the main defence taken by the accused that, statutory notice has not been received by the accused i.e., Ex.P.3. Further entire case is based on Ex.P.12. Ex.P.12 is nothing but is an agreement between parties and clear recitals in the agreement as a lessee and agreement is commenced C.C.NO.21033/2023 36 from 03.07.2023. But in the said agreement shown that effective date for the purpose of this agreement means 1st January 2019. That itself is ambiguity and in this regard the complainant just says it is typical error. Not say anything more than that. There is no relationship between the complainant and the accused prior to July 2023. Hence, the said document i.e., Ex.P.12 viz., contents transfer agreement is bogus, sham and created false document. It is further submits that the email correspondence were made by the complainant to the auditor not to the accused. On the other hand auditor had given the said alleged content transfer agreement not issued by the accused i.e., the accused No.1 to 3. It has been specifically admitted by the complainant during the course of the cross examination. Even the copy of the email correspondence file by the complainant and agreement those were marked as Ex.P.12 and 13 which does not reflect any liability upon the accused person. The accused main contention is that auditor is not belong to the accused company. The contention of the complaint is that content transfer agreement entered and executed on 03.07.2023, but email correspondence for the approval is on 06.07.2023. Hence, this itself sufficient that the said agreement is a sham agreement. Hence, there was no any sentence shown that accused persons has got liability to pay the alleged amount. Hence, email correspondence cannot be considered by C.C.NO.21033/2023 37 this court to prove the case of the complainant.
35. Further submits that the complainant intentionally communicate through email to the dishonor of cheque with third person and not communicate with the accused persons. This itself sufficient malafide intention, fraud and cheating of the complainant. Further take the defence that Ex.P.12 Arbitration clause, if the any dispute arising between parties before approaching any arbitration proceedings is must under the Arbitration and Conciliation Act. It is also states that the complainant states that there is a dispute then only to approach Arbitrator and there is no dispute. But on the other hand says based on that agreement the accused issued alleged cheque for contents. This itself is clumsy. Further submits that while cross examination of PW.1 ask for the document with regard to the address proof of the company. To that effect the complainant deposed that he is having rental agreement to that effect and same was produced in future days. But later the complainant marked the document as an Ex.P.16. This itself creates doubt with regard to existence of the company. Since there is no rental agreement produced by the complainant. Further submits that only an imaginary, flimsy ground stating that the accused has copied the contents and make a lost to the tune of Rs.15,00,00,000/-. Without supporting any document the complainant submits bald C.C.NO.21033/2023 38 allegation as well as while cross examination of the accused by the complainant counsel suggested that the accused made huge loss and the accused have to compensate the same. This itself sufficient that the complainant making statement without having valid and cogent documents. On this ground also the present complaint liable to be dismissed.
36. Further submits that in the legal notice, complaint, sworn statement he states that he is the chief executive officer of the complainant company, while in the other hand while cross examination the complainant says that he is the director of the company as per the Ministry of corporate affairs. On the other hand the complainant says that he and his wife is the owner of the complainant company. When such being the case, he cannot do double act in the same company. While cross examination the complainant not ready to produce the registration certificate of company. On the one angle he says there are four directors in the complainant company. In the broad resolution there is no signature of 4 directors. The resolution issued by the complainant is not proper as per the company act, rules and norms. This itself sufficient that the resolution is a created/sham document for the convenient of the complainant to present complaint. Further the accused not broadcast any kind of serial/movies/crime alert which contended in the content transfer agreement i.e., C.C.NO.21033/2023 39 Ex.P.12. If the accused telecasted it was available in the Ministry of Information and Broadcasting and the complainant failed to prove the same.
37. It is further submits that if the accused telecasted those contents without having copyright title, then aggrieved person take suitable action against the accused person as well as sue-moto action will be taken by the Ministry of Information and Broadcasting. Further one who seeks equity must do equity. That means the complainant has not approach this court with clean hands. Hence, he is not entitle for any relief from this court. Further submits that in support of email correspondence the complainant filed certificate under section 65B of Indian Evidence Act. But those correspondence not showing the communication between the complainant and the accused. Hence, the said certificate not helpful the complainant to prove his case. Hence, it only created document for their convenient before this court. Hence, he prays to dismiss the complaint.
38. In the case on hand the complainant and the accused having some transactions has not been seriously disputed by the accused. Further the accused have not seriously disputed the cheque in question is belongs to the account of the accused No.1 and signatures of accused No.2 and 3. It is not disputed that the complainant is a Private Limited company and C.C.NO.21033/2023 40 the accused No.1 is also private limited company and the accused No.2 and 3 are the directors of the accused No.1 and businessmen. Whereas, the accused have contended that one Ramesh Babu stole 03 signed blank cheques and the complainant have misused the one of the cheque in collusion with the said Ramesh Babu. Further contended that they have not entered into an agreement-Ex.P.12 with the complainant company for contents transfer. When the accused have not entered into an agreement with the complainant, then question of issuance of the cheque does not arise at all. The accused have specifically denied having debt/liability issued the cheque-Ex.P.1 towards the discharge of any debt/liability. They contends that the blank cheque was misused by the complainant in collusion with the Ramesh Babu and the false complaint was filed.
39. In order to attract the offence of the section 138 of N.I.Act, the main ingredients of the existence of the legally enforceable debt/liability, for which the cheque drawn on the account of the accused was given for discharge of the same, are to be proved. The complainant in order to prove its case, have examined its Chief Executive Officer as PW.1 and 18(a) documents were marked at Ex.P.1 to 18(a). In chief examination P.W.1 has repeated the averments made by the complainant in the complaint. In the present C.C.NO.21033/2023 41 case, the accused have not disputed Ex.P.1 being their cheque drawn on the account of the accused No.1. The said presumption is available to the complainant.
40. As per the section 139 of N.I.Act, there is a presumption regarding the existence of legally enforceable debt/liability. Such presumption is a rebuttable presumption and it is opinion to the accused to raise defence discharging the existence of a legally enforceable debt/liability. In the case on hand also the accused have disputed the existence of legally enforceable debt/liability, for which cheque-Ex.P.1 was issued. In order to prove their defence, the accused have failed to produce any documentary evidence before this court except Ex.D.1 to 3. PW.1 during his cross-examination has specifically denied the suggestions made to him that the cheque was stole by the Ramesh Babu and the same was misused by the complainant in collusion with the said Ramesh Babu. Further denied that there is no due from the accused and the accused had not entered into an agreement with the complainant.
41. Since, the presumption under section 139 of N.I.Act is a rebuttable presumption the accused is firstly required to produce some probable evidence to rebut the same. Though in the criminal cases, the standard of the proof required for the accused is not so strict as required for the complainant to prove the case. Further C.C.NO.21033/2023 42 the accused have to produce some probable evidence, which creates doubt about the existence of legally enforceable debt/liability. In the present case, as per the defence taken by the accused is that the Ramesh Babu stole 03 signed blank cheques and the complainant misused the alleged cheque in collusion with the Ramesh Babu. Further the accused had not entered into an agreement with the complainant. Further they have contended that they have not given any "stop payment" letter to the bank. Except, the said defence, the accused have not produced any materials to prove such defence. If they had not given the cheque to the complainant, if the Ramesh Babu stole 03 blank signed cheques and the complainant have misused the alleged cheque in collusion with the Ramesh Babu, what prevented the accused to file the complaint immediately after the alleged illegal act made by the complainant. Further what prevented the accused to file the complaint against the complainant and Ramesh Babu for misusing of the said cheque. Further on which date the accused came to knew about the alleged illegal act of the complainant, they did not whisper about on what date they came to know the alleged cheque illegally misused by the complainant in collusion with the Ramesh Babu. Admittedly the accused are businessmen and having knowledge of the financial transaction, why they have kept the signed blank cheques without anticipating the consequence is C.C.NO.21033/2023 43 not explained by them. Further why they have received the contents from the complainant and why they have not returned those contents to the complainant. So also, they have not stated anything as to what steps they took to receive back the cheques. Moreover, immediately after the alleged cheque misused by the complainant in collusion with the Ramesh Babu they have not lodge complaint before concerned police station. No steps have been taken to receive back the cheques, after they came to know about the same.
42. Once issuance of the cheque and signatures are admitted, the statutory presumptions would arise under sections 118 and 139 of the N.I.Act that the cheque was issued by the drawer for legally payable debt or liability and for valid consideration. The Hon'ble Supreme Court has held in Rangappa V/s Mohan, reported in 2010 AIR SCW 296, the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case, though, it is a rebuttable presumption. Of course, the presumption under section 139 and 118 of the N.I.Act are rebuttal presumption. Further it is also held that mere plausible explanation by the drawer is not sufficient and proof of that explanation is necessary. The principle of law laid-down in the above decision is applicable to the facts of this case. In the instant case, since the complainant is in C.C.NO.21033/2023 44 possession of the cheque the court has to draw the initial presumption that he is the payee of that cheque. Once the initial burden is discharged by the complainant, the onus shifts on the accused to rebut the complainant's case.
43. In the case of K.S.Ranganatha V/s Vittal Shetty, reported in 2021 SCC Online SC 1191, the Hon'ble Supreme Court held that once the cheque is admitted to be that of the accused, the presumption envisaged in section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability. It is further held that the position of law makes it crystal clear that when a cheque is drawn out and is relied upon by drawee, it will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.
44. In the case of Kalamani Tex and another V/s P.Balasubramanian, reported in (2021) 5 SCC 283, the Hon'ble Supreme Court has observed that even a blank C.C.NO.21033/2023 45 cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under section 139 of the Negotiable instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
45. In the case of Electronics Trade & Technology Corporation Ltd., V/s Indian Technology & Engineers (Electricals) (P) Ltd., & Anr, reported in 1996(2) SCC 739, it is observed that instructions for stoppage of payments also attracts Section 138 of N.I.Act.
46. Applying the above said principles to the present case and before considering the point whether the accused succeeded to rebut the presumptions and to establish their defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case.
47. It is not in dispute that bounced cheque belongs to the bank account of the accused No.1. It is also not in dispute that signatures appearing on the bounced cheque is the signatures of the accused No.2 and 3. It is also not in dispute that the cheque presented by the complainant came to be dishonored by the banker of the accused No.1 for the reason stated in the dishonor memo. To consider whether the accused succeeded to rebut the presumption and C.C.NO.21033/2023 46 established the defence to the extent of probabilities, the accused have not produced any documents in this regard.
48. In the defence there is no ill-will between the complainant and the accused. Hence, misuse of cheque and filing a false case is not possible. The accused admittedly having knowledge of business. It is implies, they are conversant with financial transaction. If the complainant misused the said cheque in collusion with the Ramesh Babu and had not return the same, inspite of collecting cheque leaves from him, as a prudent man, the accused should have inquired with the complainant and demanded to return that cheque. No ordinary prudent man would keep quite in such circumstances, without taking any steps. The conduct of the accused is very unusual, because they did not take any legal action against the complainant, even after filing of the complaint based on Ex.P.1. Further the accused had issued a notice to their banker to stop payment, but the accused have not issued a legal notice to the complainant regarding issuance of stop payments to the bank or they could have given complaint to the police station immediately. No such steps were taken by the accused. They simply makes a bald allegation of misuse of the cheque against the complainant and Ramesh Babu. It appears, just to escape from their legal liability, they have taken such C.C.NO.21033/2023 47 contentions without any valid basis. Further they have taken the defence that the complainant have not given H.D quality contents to the accused. But the accused have not returned the said contents to the complainant. Further the accused have not issued any legal notice or email correspondence with the complainant regarding the same. Without taking any steps against the complainant the accused escape from their legal liability, they have given stop payment letter to the bank.
49. Moreover, the complainant have got issued a legal notice to the accused by registered through its counsel calling upon them to make repayment to the complainant. Before a person is held to be guilty of an offence punishable under section 138 of N.I.Act, the complainant have to prove the compliance of the requirement under section 138 of N.I.Act. It is not in dispute that Ex.P.1 being their cheque drawn on account of the accused No.1. In view of the above discussions, it is also held to be proved that it was drawn for discharge of legally enforceable debt/liability. From the evidence of P.W.1 and also cheque return memo-Ex.P.2 it is established that the cheque was dishonored for the reasons "Payment stopped by drawer''. A legal notice being issued as per Ex.P.3 within one month from the date of dishonor of the cheque is also not in dispute. In the case on hand the C.C.NO.21033/2023 48 accused have not seriously disputed regarding notice send by the complainant on their address. But the accused have not given any reply to the said notice. Thereby, they could have asserted their defence at an earliest available opportunity. In the case on hand the notice is sent to the accused at their address. When the accused have not seriously disputed the address, the notice sent to the correct address is sufficient compliance under section 138 of N.I.Act. Therefore, there is sufficient proof of due service of the legal notice.
50. It is not the contention of the accused that thereafter they have paid the cheque amount within stipulated time of 15 days on receiving the notice. Therefore, in the case on hand on perusal of the evidence placed on record, all the essential ingredients under section 138 N.I.Act, have been complied with. As the accused have not paid the cheque amount within stipulated period, as such the accused have committed an offence punishable under section 138 of Negotiable Instruments Act. The present complaint is filed within the period of one month after the accused failed to repay the cheque amount. Even the accused did not whisper anything about the defence while their plea was recorded under section 251 of Cr.P.C. In the judgment of Hon'ble Supreme Court in Indian Bank Association V/s Union of India and others, (2010 (5) C.C.NO.21033/2023 49 SCC 590), it is clear that while recording the plea under section 251 of Cr.P.C., it becomes the duty of the accused to state whether he has any defence to make or he pleads guilty. Thus, unlike under section 240 of Cr.P.C., the accused has no option under section 251 of Cr.P.C., just to deny the allegations made against him. If he is not willing to plead guilty, he must explain what are the defences he want to take. As such, it has to be considered, whatever defence raised by the accused during the trial are all after thought, just to get ride of statutory burden cast on him.
51. In addition to this in the case of T.P.Murugan (Dead) through legal representatives V/s Bojan, reported in 2018 (8) SCC 469, the Hon'ble Apex Court held that once the cheque has been signed and issued in favour of the holder of the cheque, there is statutory presumption that the cheque is issued in respect of legally enforceable debt or liability: rebuttal of such presumption must be by adducing credible evidence. Mere raising a doubt without cogent evidence with respect to the circumstances, presumption under section 139 of N.I.Act cannot be discharged. The principle of law laid-down in the above decisions are applicable to the facts of this case. Except some bald contentions, the accused have not been able to make out a probable case on their behalf.
52. As per the version of the accused is that they C.C.NO.21033/2023 50 have nowhere denied transaction. The accused themselves have admitted that the accused No.1 the holder of alleged cheque. It is sufficient hold that the accused had issued the cheque-Ex.P.1 and even after they have not repaid the cheque amount the getting the receipt of notice. However, in any manner as the complainant have complied all the terms of ingredients of the provisions of 138 of N.I.Act. The accused is liable for dishonor of cheque. In case of dishonor of cheque, once the execution of cheque is admitted by the accused, then it for them to first rebut presumption arising out of section 139 of N.I.Act. Accordingly, PW.1 has established the case of the complainant, the accused had issued the cheque-Ex.P.1 in order to repay the legally recoverable amount. Therefore, the accused have failed to probables the defence taken by them. Further the accused have failed to rebut the presumption under section 139 of N.I.Act. In the said circumstances, the complainant is not at all required to produce any material as to the financial transaction between the complainant and the accused, since the initial presumption is still available, when there is no rebuttal evidence.
53. PW.1 in his evidence has specifically deposed that the complainant company is a engaged in the business of content aggregation development and marketing including films, serials etc, in the name and C.C.NO.21033/2023 51 style of "Kalki". Further deposed that the accused namely M/s. DDNK Media Private Limited claims to be a broadcaster and carrying on their business in the name and style of NKR TV. It is deposed stated that the accused had entered into an agreement dated: 3 rd July 2023 with the complainant company for content transfer of his programs, movies etc. as per annexure, annexed to the agreement. That as per the terms of the agreement the accused had agreed to pay a sum of Rs.50 lakhs towards non-refundable deposit for usage of the contents in the accused's channel. As per the terms of the agreement 50% of the payment was agreed to be made while signing the agreement and the balance amount was agreed to be paid on or before 10th July 2023. That as per the terms of the agreement, the complainant's company handed over all the contents in tapes, discs and other formats which were duly received by the accused. It is deposed that after several follow ups the accused had issued the cheque- Ex.P.1 in favour of the complainant. So also it is not in disputed that the complainant and the accused are known to each other, some point of period. The accused have failed to rebut the presumption under section 139 of N.I.Act, non furnishing of details of financial transaction no consequences to disbelieve the case of the complainant. The accused have failed to probables their defence. With these reasons, I answer point No.1 and 2 in the Affirmative.
C.C.NO.21033/2023 52
54. POINT NO.3 AND 4: In order to avoid repetition of facts, these points are taken together for common discussion. Before a person is held to have committed an offence punishable under section 138 of N.I.Act, the complainant have to prove all the requirements of section 138 of N.I.Act. Ex.P.1 being their cheque drawn on the account of the accused No.1 is not in dispute. The said cheque having been dishonored, when it was presented by the complainant before the bank for encashment is also not seriously disputed by the accused. The accused have not taken up any contention that thereafter they had paid the cheque amount within stipulated time of 15 days, after service of the notice. As such, in the present case from perusal of documents, the essential requirements of section 138 of N.I.Act, have been complied with. In this case if the accused have not issued the cheque in favour of the complainant, if the Ramesh Babu stole the cheques and why they have not produced any documents. After service of notice the accused have not given any reply and not paid the said cheque amount. Hence, the present complaint came to be filed before the court on 16.08.2023 within the period of one month from the date of cause of action. While discussing the point No.1 and 2, this court has already observed that the complainant have proved that the cheque-Ex.P.1 was issued for discharge of legally C.C.NO.21033/2023 53 enforceable liability/debt and in view of the mandatory requirements under section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. With these reasons, I answer point No.3 and 4 in the Affirmative.
55. POINT NO.5: The accused is held to have committed an offence punishable under section 138 of N.I.Act. The complainant's have proved its case. The accused have failed to prove their rebuttal for the reasons mentioned above and in view of the mandatory requirements of section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. Since, the said offence is an economic crime, the accused are not entitled for the beneficial provisions of probation of offenders Act. In view of the above discussions and the findings on point No.1 to 4, I proceed to pass the following;
:ORDER:
Acting under section 255(2) of Cr.P.C. the accused are convicted for an offence punishable under section 138 of N.I.Act.
The bail bonds executed by the accused hereby stands canceled.
The accused are sentence to pay fine of Rs.23,20,000/- (Rupees twenty three C.C.NO.21033/2023 54 lakhs twenty thousand only) to the complainant.
It is further ordered that out of the said fine amount an amount of Rs.23,10,000/- (Rupees twenty three lakhs ten thousand only) shall be paid to the complainant as compensation as per section 357(1)(b) of Cr.P.C., and remaining amount of Rs.10,000/- (Rupees ten thousand only) shall be remitted to the State.
In default of the payment of fine amount, the accused No.2 and 3 shall undergo simple imprisonment of six months each.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 26th day of December-2024) (Soubhagya.B.Bhusher) XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE List of witness examined on behalf of the complainant:
PW.1 : Sri.P.Kailasam.
List of documents marked on behalf of the complainant:
Ex.P.1 : Cheque.
Ex.P.1(a) & 2(a) : Signatures of the accused No.2 & 3.
Ex.P.2 : Bank endorsement.
Ex.P.3 : Office copy of legal notice.
Ex.P.4 : Postal receipt.
C.C.NO.21033/2023
55
Ex.P.5 : Postal Acknowledgment.
Ex.P.6 to 9 : Returned postal covers.
Ex.P.6(a) to 9(a) : Returned legal notices.
Ex.P.10 : Complaint. Ex.P.11 : Certified copy of the board resolution. Ex.P.12 : Printout copy of the agreement. Ex.P.13 : Printout copy of the e-mail conversation. Ex.P.14 : Photo. Ex.P.15 : Certificate U/s.65(b) of I.E.Act. Ex.P.16 : Addendum to agreement. Ex.P.17 : Board resolution. Ex.P.18 : Ministry of Corporate Affairs. Ex.P.18(a) : Certificate U/s.65(b) of I.E.Act.
List of witnesses examined on behalf of the accused:
D.W.1 : Dr.P.K.Govind. D.W.2 : Smt.Nagaratna Govind.
List of documents marked on behalf of the accused:
Ex.D.1 : Kalki annexure content analysis.
Ex.D.2 : Movie list.
Ex.D.3 : Certified copy of complaint in CC.No.11697/2017 &
all exhibits.
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.
C.C.NO.21033/2023
56
26.12.2024 (Judgment pronounced in the Open
Court Vide Separate Sheet)
:ORDER:
Acting under section 255(2) of Cr.P.C. the accused are convicted for an offence punishable under section 138 of N.I.Act.
The bail bonds executed by the accused hereby stands canceled.
The accused are sentence to pay fine of Rs.23,20,000/- (Rupees twenty three lakhs twenty thousand only) to the complainant.
It is further ordered that out of the said fine amount an amount of Rs.23,10,000/- (Rupees twenty three lakhs ten thousand only) shall be paid to the complainant as compensation as per section 357(1)(b) of Cr.P.C., and remaining amount of Rs.10,000/- (Rupees ten thousand only) shall be remitted to the State.
In default of the payment of fine amount, the accused No.2 and 3 shall undergo simple imprisonment of six months each.
XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.