Bangalore District Court
Sri. Irfan Khan vs Sri. E.C.Ekambaram on 4 December, 2021
1
C.C.No.23859/17 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 4th day of December 2021
Present: Sri.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.23859/17
Complainant : Sri. Irfan Khan,
S/o. Kaleem Khan,
Aged about 29 years,
Residing at No.34, 2nd Cross,
Eshwari Bills, Kaggalipura,
Bangalore 82.
Rep.by Sri.T.V.Tajpeer Sab,. Adv.,)
Vs
Accused : Sri. E.C.Ekambaram,
S/o. Chinnayya,
Aged about 58 years,
Residing at No.105, 9th Cross,
S.R. Naidu Layout,
Devachikkenahalli,
Hongasandra,
Bangalore 560 068.
(Rep. by Sri. G.Manohar., Adv.,)
Case instituted : 29.8.2017
Offence complained : U/s 138 of N.I Act
of
2
C.C.No.23859/17 J
Plea of Accused : Pleaded not guilty
Final Order : Accused is Acquitted
Date of order : 4.12.2021
JUDGMENT
The Complainant has filed this complaint against the Accused for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, he is carrying on transportation business and as per the demands, was supplying River Sand and other construction material as per their order to his customers and also common persons, accused being a constructor and developer engaged his construction work under the banner of Prabhavathi Builders and having close contact with each other since past several years and accused personally requested him to supply River Sand for his construction project, carrying on at Konappana Agrahara. as per the orders placed by the accused, he had supplied 35 loads of River Sand for his construction plant. The complainant further contends that, after supply of 35 loads of river sand, the accused totally entitled to pay the balance amount of Rs.7,50,000/=to him, 3 C.C.No.23859/17 J accordingly the accused has issued eight cheques individually towards the admitted debt liability i.e., the cheques bearing Nos:232710, 232711, 232718, 232719, 232720, 221050, 210051 of Rs.1 Lakh each for a total sum of Rs.7 Lakhs and one cheque bearing No.221052 for Rs.50,000/=, all the cheques were drawn on Bank of India, Small Scale Industrial Branch, Bengaluru in his favour, and as per the instructions of the accused, he presented the six cheques ie 1) cheque bearing No.232711 for Rs.1 Lakh dated: 20.5.2017; 2) cheque bearing No.232719 for Rs.1 Lakh dated: 5.5.2017; 3) cheque bearing No.232720 for Rs.1 Lakh dated: 10.5.2017;
4) cheque bearing No.221050 for rs.1 Lakh dated:
15.5.2017; 5) cheque bearing No.221051 for rs.1 Lakh dated: 25.5.2017; 6) cheque bearing No.221052 for Rs.1 Lakh dated: 30.5.2017, for encashment through his banker, but all the cheques were returned dishonoured as "Payment Stopped by the drawer" vide bank endorsement dated:20.7.2017, thereafter he had personally approached the accused to clear the amount and instead of clearing the payments, accused filed false complaint against him before the Kaggalahalli Police Station Bengaluru, 4 C.C.No.23859/17 J with a malafide intension to harass him and to escape from his liability, thereafter he got issued a legal notice to the accused on 24.7.2017 calling upon him to pay the cheques amount to him within 15 days from the date of the receipt of the said legal notice the same has been served on the accused on 2.8.2017, after receipt of the notice, the accused has replied to the notice inspite of that, the accused has failed to comply with the demand made in the notice.
Hence the complainant has filed this present complainant against the Accused for the offence punishable U/s.138 of Negotiable Instruments Act.
3. Before issuing process against the accused, the Complainant has filed his affidavitinlieu of his sworn statement, in which, he has reiterated the averments of the complaint. In support of his sworn statement, P.W.1 has relied upon the documentary evidence as per Ex.C.1 to Ex.C.12 i.e, original Cheques dt:05.05.2017, 10.05.2017, 15.05.2017, 20.05.2017, 25.05.2017 and 30.05.2017 as per Ex.C.1 to C.6 respectively, the signatures on the said cheques identified by P.W.1 are those of the accused as per Ex.C.1(a) to C.6(a), the Bank Memos as per Ex.C.7 & C8, the office copy of the Legal Notice as 5 C.C.No.23859/17 J per Ex.C.9, postal receipt as per Ex.C.10, Postal acknowledgement as per Ex.C.11, Reply notice as per Ex.C.12. Subsequently during the course of evidence the complainant has produced Receipts/Material received note as per Ex.C.13 to C.41 respectively, Letters issued by Fullerton India Bank dt:
18.12.2012 as per Ex.C.42 and C.43, Photos as per Ex.C.44 to C.50 respectively, C.D. as per Ex.C.51, Receipt as per Ex.C.52.
4. Primafacie case has been made out against the accused and summons was issued against the accused in turn he has appeared before the court and got enlarged on bail and the substance of the accusation has been read over to him, to which he pleaded not guilty and claims to be tried.
5. In view of the principles of law laid down and as per the directions of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the accused, as he intended to set out his defence, and the case was posted for cross examination of complainant.6
C.C.No.23859/17 J
6. Thereafter, the statement of the accused as required under Sec.313 of the Cr.P.C. has been recorded. He has denied the incriminating evidence appearing against him and has chosen to lead his rebuttal evidence, subsequently the accused himself examined as DW1 and has produced certified copy of the receipt dt: 7.12.2018 as per Ex.D.1, certified copy of the acknowledgement of registration of firm as per Ex.D.2, certified copy of the Form No.1 as per Ex.D.3, certified copy of memorandum of acknowledging receipt of documents as per Ex.D.4, certified copy of Form No.5 as per Ex.D.5, certified copy of the memorandum of acknowledging receipt of documents as per Ex.D.6, Form no.5 as per Ex.D.7, certified copy of acknowledgement issued by Deputy Registrar Companies Karnataka Bangalore as per Ex.D.8, certified copy of acknowledgement of stamp duty payment for certified true copies as per Ex.D.9, certified copy of the Form1 certificate of incorporation as per Ex.D.10, certified copy of the endorsement issued by Deputy register of Companies, Karnataka Bangalore as per Ex.D.11, certified copy of the acknowledgement of stamp duty 7 C.C.No.23859/17 J for payment for certified copies as per Ex.D.12, true copy of the Form No.32 as per Ex.D.13, Notarized copy of the pan card as per Ex.D.14, Computer down loaded copy of the Form 26 AS as per Ex.D.15 to D.17 and certificate filed U/s.65(B) of Indian evidence Act as per Ex.D.18, certified copy of the Judgment passed in CC.No.20324/17 as per Ex.D.19.
7. Heard the arguments by learned counsel for the complainant and accused and perused the written arguments submitted by the learned counsels for the accused and complainant and materials on record and the decisions relied upon by the learned counsel for the accused ie., 1) (2009) SCC 513 2) (2013) SCC 327, 3) 2001 (1) KCCR 2012 4) Judgment of Hon'ble High Court of Karnataka passed in Crl.P. No.1387/2011
8. On the basis of complaint, evidence of complainant and documents and having heard the arguments of both learned counsels for the complainant and the accused, the following points that are arise for consideration are: 8 C.C.No.23859/17 J
1. Whether the complainant proves that the accused has issued six cheques ie
1) cheque bearing No.232711 for Rs.1 Lakh dated: 20.5.2017;
2) cheque bearing No.232719 for Rs.1 Lakh dated: 5.5.2017;
3) cheque bearing No.232720 for Rs.1 Lakh dated: 10.5.2017;
4) cheque bearing No.221050 for Rs.1 Lakh dated: 15.5.2017;
5) cheque bearing No.221051 for Rs.1 Lakh dated: 25.5.2017;
6) cheque bearing No.221052 for Rs.1 Lakh dated: 30.5.2017 all the cheques were drawn on Bank of India, Bangalore SSI Branch, Banglaore to discharge legally recoverable debt to the complainant and when the complainant has presented the above said cheques for encashment through his banker but the said cheques have been dishonoured for the reasons "Payment Stopped by Drawer" on 20.7.2017 and the complainant issued legal notice to the accused on 24.07.2017 and inspite of it the accused has not paid the cheques amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
9C.C.No.23859/17 J
2. What Order?
9. The above points are answered as under:
Point No.1: In the Negative Point No.2: As per final order for the following:
REASONS
10. Point No.1: Before appreciation of the facts and oral and documentary evidence of the present case, it is relevant to mention that under criminal jurisprudence prosecution is required to establish guilt of the Accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 136 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be deemed to have been committed an offence. The offence U/s.138 of N.I. Act presupposes three conditions for prosecution of an offence which are as under:
10C.C.No.23859/17 J
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
11. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e., U/s.118 a presumption shall be raised regarding 'consideration' 'date' 11 C.C.No.23859/17 J 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
12. In the present case the complainant got examined as PW.1 by filing his affidavit evidence wherein he has reiterated the entire averments of the complaint and in his evidence testified that, he is carrying on transportation business and as per the demands, was supplying River Sand and other construction material as per their order to his customers and also common persons, accused being a constructor and developer engaged his construction work under the banner of Prabhavathi Builders and having close contact with each other since past 12 C.C.No.23859/17 J several years and accused personally requested him to supply River Sand for his construction project, carrying on at Konappana Agrahara. as per the orders placed by the accused, he had supplied 35 loads of River Sand for his construction plant. The complainant/PW.1 further testified that, after supply of 35 loads of river sand, the accused totally entitled to pay the balance amount of Rs.7,50,000/=to him, accordingly the accused has issued eight cheques individually towards the admitted debt liability i.e., the cheques bearing Nos:232710, 232711, 232718, 232719, 232720, 221050, 210051 of Rs.1 Lakh each for a total sum of Rs.7 Lakhs and one cheque bearing No.221052 for Rs.50,000/=, all the cheques were drawn on Bank of India, Small Scale Industrial Branch, Bengaluru in his favour, and as per the instructions of the accused, he presented the six cheques ie 1) cheque bearing No.232711 for Rs.1 Lakh dated: 20.5.2017; 2) cheque bearing No.232719 for Rs.1 Lakh dated: 5.5.2017; 3) cheque bearing No.232720 for Rs.1 Lakh dated: 10.5.2017;
4) cheque bearing No.221050 for rs.1 Lakh dated:
15.5.2017; 5) cheque bearing No.221051 for rs.1 Lakh dated: 25.5.2017; 6) cheque bearing No.221052 13 C.C.No.23859/17 J for Rs.1 Lakh dated: 30.5.2017, for encashment through his banker, but all the cheques were returned dishonoured as "Payment Stopped by the drawer" vide bank endorsement dated:20.7.2017, thereafter he had personally approached the accused to clear the amount and instead of clearing the payments, accused filed false complaint against him before the Kaggalahalli Police Station Bengaluru, with a malafide intension to harass him and to escape from his liability, thereafter he got issued a legal notice to the accused on 24.7.2017 calling upon him to pay the cheques amount to him within 15 days from the date of the receipt of the said legal notice the same has been served on the accused on 2.8.2017, after receipt of the notice, the accused has replied to the notice inspite of that, the accused has failed to comply with the demand made in the notice.
13. In support of his oral evidence, P.W.1 has relied upon the documentary evidence as per Ex.C.1 to Ex.C.52 i.e, original Cheques dt:05.05.2017, 10.05.2017, 15.05.2017, 20.05.2017, 25.05.2017 and 30.05.2017 as per Ex.C.1 to C.6 respectively, the signatures on the said cheques identified by P.W.1 14 C.C.No.23859/17 J are those of the accused as per Ex.C.1(a) to C.6(a), the Bank Memos as per Ex.C.7 & C8, the office copy of the Legal Notice as per Ex.C.9, postal receipt as per Ex.C.10, Postal acknowledgement as per Ex.C.11, Reply notice as per Ex.C.12, Receipts/Material received note as per Ex.C.13 to C.41 respectively, Letters issued by Fullerton India Bank dt:
18.12.2012 as per Ex.C.42 and C.43, Photos as per Ex.C.44 to C.50 respectively, C.D. as per Ex.C.51, Receipt as per Ex.C.52.
14. In the present case, there is no dispute between the complainant and Accused with regard to their acquaintance. It is also not disputed by the accused that, the cheques in question ie Ex.C.1 to C.6 belongs to his account and signatures found at Ex.C.1(a) to C.6(a) are those of his signatures. The accused has also not disputed that, the cheques in question were presented to the encashment within their validity period and the said cheques have been returned as dishonoured for the reason of "Payment Stopped by Drawer" as per the returned memos issued by the concerned bank i.e Ex.C.7 and C.8, hence as a matter on record it is proved by the 15 C.C.No.23859/17 J complainant that, the cheques in question were dishonoured for the reason of payment stopped by Drawer, it is also not in dispute by the accused that, the legal notice caused by the complainant was within 30 days from the date of receipt of bank memo. The accused has also reply to the notice issued by the complainant as per Ex.C.12, hence the legal notice caused by the complainant was duly served on the accused and the complainant has complied all the mandatory requirements as required U/s.138(a) to (c) of N.I.Act.
15. The accused in his defence has denied supply of river sand to him by contending that, there is no transaction between him and the complainant as stated by him in his complaint and evidence and he have not done any construction activity in Konappana Agrahara as stated by the complainant.
It is also the defence of the accused that, the complainant and his father Mr.Khaleem Khan along with goonda elements came to his house and threated him for life and took the cheques in question from him and filed this false complaint against him to make wrongful gain from him. Hence, 16 C.C.No.23859/17 J in this back ground now the oral and documentary evidence produced by the complainant and accused has to be examined.
16. It is the specific claim of the complainant that, he is carrying transportation business and as per the demadns he used to supply river sand and other construction material as per the order to his customers and common persons and the accused being a constructor and developer engaged his construction work under the banner of Prabhavathi Builders. It is also the claim of the complainant that, he had supplied 35 loads of river sand as per the request of the accused for the construction project carrying at Konappana Agrahara and the accused has to pay total balance amount of Rs.7,50,000/ and towards payment of the said amount has issued 8 cheques individually by admitting the debt and liability ie the cheques in question Ex.C.1 to C.6 in his favour and the accused issued the said cheques in his house and same has been recorded in the C.D. On the other hand the accused denied that, there is no transaction between him and the complainant as stated by him in the complaint and evidence and 17 C.C.No.23859/17 J M/s. Prabhavathi Builders is a registered partnership and he nowhere concerned to the said firm. The complainant in order to substantiate his claim has produced original receipts issued by Prabhavathi builders and developers Pvt. Ltd., which are at Ex.C.13 to C.41. The accused during the course of cross examination has disputed the said receipts. The perusal of Ex.C.13 to C.41 it appears that, there is a supply of sand by the complainant in favour of the M/s. Prabhavathi Builders and Developers, hence it goes to show that, the complainant has supplied sand to the M/s. Prabhavathi Builders and Developers Pvt. Ltd, but not in the name of accused.
17. The accused in support of his oral evidence has produced the certified copy of the documents ie., certified copy of the receipt dt:
7.12.2018 as per Ex.D.1, certified copy of the acknowledgement of registration of firm as per Ex.D.2, certified copy of the Form No.1 as per Ex.D.3, certified copy of memorandum of acknowledging receipt of documents as per Ex.D.4, certified copy of form No.5 as per Ex.D.5, certified copy of the memorandum of acknowledging receipt of documents 18 C.C.No.23859/17 J as per Ex.D.6, Form no.5 as per Ex.D.7, certified copy of acknowledgement issued by Deputy Registrar Companies Karnataka Bangalore as per Ex.D.8, certified copy of acknowledgement of stamp duty payment for certified copies as per Ex.D.9, certified copy of the Form1 certificate of incorporation as per Ex.D.10, certified copy of the endorsement issued by Deputy register of Companies, Karnataka Bangalore as per Ex.D.11, certified copy of the acknowledgement of stamp duty for payment for certified copies as per Ex.D.12, certified copy of the form No.32 as per Ex.D.13. On careful perusal of the Ex.D.1 to D.13 it appears that, M/s.Prabhavathi Builders is a registered partnership firm registered under the Indian Partnership Act 1932 under register No.2802/200607 and originally Sri.B.E.Praveen Kumar and Smt. Vidhya were the partners of the said firm and subsequently due to death of Smt. Vidhya, Master Pavan Kumar and Kum. Deepika were became partners of the said firm and thereafter one Mr. Narendra Reddy also became partner of the said firm. It is also seen from Ex.D.1 to D.13 accused is not either partner or developer in M/s.Prabhavathi Builders. It is also relevant here to 19 C.C.No.23859/17 J mention that, the complainant in his cross examination has admitted that, the son of the accused by name Praveen Kumar is the owner of M/s.Prabhavathi Builders and he do not know the other partners of the said company and he is saying on the accused is the owner of M/s.Prabhavathi Builders on the basis of his son ie., Praveen Kumar is the owner of the M/s.Prabhavathi Builders and the said firm standing in the name of wife of accused and has not denied the suggestion made to him that, accused is not owner of the M/s.Prabhavathi Builders. It is further admitted by the complainant that, except Mr.Praveen Kumar who is one of the partner of M/s.Prabhavathi Builders, he do not know who are the rest of the partners of the said company. Hence on combined reading of documentary evidence of the accused ie Ex.D.1 to D.13 and admissions of the complainant makes it clear that, earlier one Mr. Praveen Kumar and his wife Smt. Vidya were the partners of M/s.Prabhavathi Builders and after death of Smt. Vidya Mr. praveen Kumar and Kum. Deepika became the partners of said firm and subsequently Mr. M. Narendra Reddy became the partner of the 20 C.C.No.23859/17 J M/s.Prabhavathi Builders and the accused is not either partner or owner of the M/s.Prabhavathi Builders. Therefore though the complainant has not produced documents to show that, accused being constructor and developer engaged his construction work under the banner of M/s.Prabhavathi Builders but the accused has produced the documentary evidence to show that, he is not either partner or owner or developer of M/s.Prabhavathi Builders.
18. It is also the specific claim of the complainant that, the accused requested him to supply River sand for his constructions project carrying at Konappana Agrahara, accordingly as per the orders placed by him he has supplied 35 loads of River sand for construction of plant of the accused for that, accused is liable to pay balance amount of Rs.7,50,000/ and has issued the cheques in question individually by admitting the debt and liability. As it is already held in the above that, the complainant has miserably failed to prove that, accused either partner or owner or developer and carrying his construction work under the banner fo M/s.Prabhavathi Builders. It is relevant here to 21 C.C.No.23859/17 J mention that, the complainant during the course of his cross examination has categorically admitted that, he have no document in support of his claim that, the accused was placing order with him seeking the supply of River sand, hence it goes to show that, absolutely there are no documentary proof to show that, accused was placing orders with the complainant for supply of sand. The perusal of the receipts ie Material Received Note produced by the complainant ie Ex.C.13 to C.41 it appears that, there is mentioning of "paramount B" in handwriting on the top of the receipts ie Ex.C.13 to C.16 and there is mentioning of "comfort" in hanwritingon the top of the receipts ie Ex.C.17 to C.24 and there is mentioning of "Ridge" in the handwriting on the top of the receipts ie., Ex.C.25 to C.32 and there is mentioning of "Spring Field" in handwriting on the top of the receipts ie Ex.C.33 to C.37 and there is mentioning of "Bliss" in handwriting on the top of the receipts ie Ex.C.38 to C.41. The complainant has not stated the place of supply of sand as per Ex.C.13 to C.41 but whereas in his cross examination he has categorically admitted that, the name mentioned in Ex.C.13 to 16 ie "Paramount B" and "Comfort" in 22 C.C.No.23859/17 J handwriting on the top of Ex.C.17 to C.24 are name of the sites carrying construction work and "Ridge" mentioned in Ex.C.25 to C.32 is the name of the site carrying work at Kodichikkenahalli and "Sping Field " mentioned in C.33 to C.37, is the name of the construction site at Beguru Devarachikkanahalli and " Bliss" mentioned in Ex.C.38 to C.41 is name of the site situated at Beguru Devarachikkanahalli, hence the above admissions of the complainant makes it clear that, the receipts which are produced by the complainant are pertains to the supply of sand in respect of the construction work carrying at Kodichikkanahalli and surrounding place of Beguru Devarachikkanahalli but none of the receipts are discloses that, the sand in question was supplied to the construction work carrying at Konappana Agrahra as claimed by the complainant in his complaint and evidence. It is also admitted by the complainant that, there is no mentioning of amount for supply of sand in Ex.C.13 to C.41 and there were no signatures found in Ex.C.13 to C.41 in the place of storeincharge and site incharge and there were no seal and signatures of the company ie., M/s Prabahavati Builders and Developers Pvt. Ltd., 23 C.C.No.23859/17 J therefore in view of the said admission makes it clear that, though the complainant has produced Ex.C.13 to C.41 but there were no mentioning of amounts for supply of sand in question and there were no signatures and seal pertains to the M/s. Prabhavathi Builders and even there is no reference for placing of orders either by the accused or orders placed by the accused on behalf of M/s. Prabavathi Builders as claimed by the complainant, in such circumstances there is serious doubt creates with regard to placing of orders either by the accused or by the accused on behalf of the M/s. Prabhavathi Builders and as per the request of the accused the complainant issued the bills ie Ex.C.13 to C.41 and accused is balance due of Rs.7,50,000/ towards supply of sand by the complainant. It is also admitted by the complainant that, he do not know the site owner of the construction work carrying at Konappana Agrahara and do not know as to there is an agreement ie JDA between the site owner and M/s. Prabhavathi Builders and also admitted that, he do not know as to whether the construction work is carrying either at Konappana Agrahara or in any other places at Bengaluru by the accused and also admitted that, 24 C.C.No.23859/17 J accused is working as Supervisor on painting work. Hence the above admissions of the complainant makes it clear that, the complainant himself admitted that, he does not know whether the accused carrying constructions work at Konappanaagrahara site or in any other places at Bangalore and also admitted that, accused is working as Supervisor in respect of painting work in such circumstances a serious doubt creates with regard to claim made by the complainant that, accused personally requested him for supply of sand for his construction project carrying at Konappana Agrahara.
19. The complainant has produced photographs and receipt which are at Ex.C.44 to C.52 but in his cross examination has admitted that, as per his version the apartments/buildings appearing in Ex.C.44 to C.50 have been constructed by the Prabhavathi Builders and also admitted that, Ex.C.13 to C.41 ie receipts are not related to the construction work carried in Ex.C.44 to C.50 and also admitted that, he has no document to show that, M/s.Prabhavathi Builders and Developers Pvt. Ltd., have placed order to him for supply of materials 25 C.C.No.23859/17 J shown in Ex.C.13 to C.41 and as on to day M/s.Prabhavathi Builders and Sevelopers Pvt. Ltd., company has not made any payment in respect of the transaction shown in Ex.C.13 to C.41 and as per his version M/s.Prabhavathi Builders and Developers Pvt. Ltd., Company had taken construction work at Konappana Agrahara under the banner of Prabhavathi comforts. Hence, the above admissions of the complainant makes it clear that, though he has produced photographs pertaining to the M/s.Prabhavathi Builders and Developer Pvt.Ltd., and apartments and buildings stating that, the said M/s. Prabhavathi Builders and developers have taken construction work of buildings, but the complainant himself admitted that, the construction work carried by the M/s.Prabhavathi Builders and developers Pvt. Ltd., shown in Ex.P.44 to C.50 photographs is not related to the receipts ie., Ex.C.13 to C.41 produced by him, therefore the Ex.C.44 to C.50 are not helpful for the complainant to prove his claim as he himself admitted that, they are not related to Ex.C.13 to C.41 ie., for supply of sand. Even in addition to that, the complainant admitted that, he has no document to show that, the 26 C.C.No.23859/17 J M/s. Prabhavathi Builders and developers Pvt. Ltd., Company has placed order for supply of sand as per Ex.C.13 to C.41 and no payment has been made in that regard, therefore though the complainant claims that, the accused has requested for supply of sand for the constructor of project, carrying at Konappana Agrahara under the banner of Prabhavathi Builders but he himself admitted that, he has no document to show that, the Prabhavathi Builders and Developers Pvt. Ltd. Company has placed order for supply of sand to him, on this count also the complainant has miserably failed to prove that, Prabhavathi Builders and Developers Pvt. Ltd., company has placed order for supply of sand and inturn he has supplied the same to the Prabhavathi Builders and has issued the receipts as per Ex.C.13 to C.41 to the accused. In this regard, it is relevant here to refer the decision of Hon'ble Apex Court of India reported in (2013) 1 SCC 327 in the case of Reverend Mother Marykutty Vs Reni.C.Kottaram and another., wherein it is held that "There was no reliable evidence adduced by respondent/ complainant to prove that, Rs.25 Lakhs were due to him warranting execution of cheque 27 C.C.No.23859/17 J Ex.P.1 Appellant/accused discharged initial burden on her proving that there was no existence of any consideration due whether said presumption U/s.118 stood rebutted had to be inferred based on preponderance of probabilities, not only from materials on record but also from relevant circumstances". Hence in the present case also the complainant has not produced any documents or receipt to prove that, accused is due balance amount of RS. 7,50,000/ and and has not stated how much amount was to be paid by the accused towards supply of River sand and how much amount has already been received by the accused either in the legal notice, complaint or evidence and even has not produced single piece of document to that effect, therefore the complainant has miserably failed to prove that, accused is due of balance of Rs.7,50,000/ towards supply of sand as claimed by him.
20. Therefore from careful perusal of the oral and documentary evidence produced by the accused and admissions of the complainant makes it clear 28 C.C.No.23859/17 J that, the complainant has miserably failed to prove that, the accused being constructor and developer engaged his construction work under the banner of M/s. Prabhavathi Builders and accused has requested him to supply River sand for his construction project carrying at Konappana Agrahara accordingly he has supplied 35 loads of sand to the accused and accused is balance due of Rs.7,50,000/ towards supply of sand as claimed by the complainant.
21. It is also the specific claim of the complainant that, the accused by admitting the debt and liability of Rs.7,50,000/ ie balance amount towards supply of sand has issued the cheques in question ie Ex.C.1 to C.6. The accused though he has denied the issuance of cheques in question towards discharge of the liability in question by contending that, complainant and his father Mr. Khaleem Khan along with Goonda elements during the month of February 2017 had came to his house and threated him for life stating that, his son Praveen Kumar owed them money and forcibly got his signature on 8 cheques including the cheques in question and took the same from him and he was forced to right 29 C.C.No.23859/17 J the amount on cheques and was directed not to write his name on 5 cheques and the complainant took the cheques from his custody for that, he had given a complaint before the Mico Layout police. It is true that, the accused ie DW.1 in his cross examination has categorically admitted that, the cheques in question belongs to his account and signatures found at Ex.C.1(a) to C.6(a) are those of his signatures and also admitted that, the cheques in dispute have been collected from his house and CC TV facility is provided to his house and no hindrance for him to produce the CC TV footages in respect of the incident ie., complainant and his father and along with 7 to 8 people came to his house and forcibly taken away the cheques form him but he stated that, he has produced the said CCTV footages before the police station and has also stated that, he has to check and produce the copies of the CCTV footages . It is also relevant here to mention that, the accused in his reply ie Ex.C.12 has admitted that, he is ready to produce CCTV footages. It is also relevant here to mention that, the accused during the course of his cross examination confronted Laptop to him and shown recorded video and suggested that, there is 30 C.C.No.23859/17 J appearance of the accused and he is writing the cheques and issuance of the cheques by him but though the accused has admitted and identified that, he is signing the cheques in the said video but he has stated that, same has been created and forcibly taken 8 cheques from him. It is also relevant here to mention that, the accused in his evidence has clearly admitted that, the complainant has recorded over his mobile phone about his writing on the cheques , hence on combined reading of the claim made by the complainant and admissions of the accused makes it clear that, the accused has issued the cheques in question and same has been recorded by the complainant which is admitted by the accused in his cross examination but the accused has denied the issuance of cheque towards discharge of the liability in question. It is also important here to mention that, the accused in his evidence though he has stated that, he had given a complaint to Mico layout police with regard to alleged forcibly taken his 8 cheques by the complainant and his father along with goonda elements and instead of taking action against the said persons the police have colluded with the complainant and his father have not taken 31 C.C.No.23859/17 J against them, but in order to prove the said allegations the accused has not produced copy of the complaint lodged by him against the complaint and his father as alleged by him, therefore the defence of the accused that, the complainant and his father along with goonda elements had come to his house and threatened him for life by stating that, his son Praveen kumar owed them money and by forcibly taken his signed 8 cheques cannot be acceptable one. It is also admitted by the accused that, his residential house coming under the jurisdiction of Bommanahalli jurisdiction, but he has not filed complaint before the said police station and filed the complaint before the Mico layout police, hence it goes to show that, if really the alleged incident as stated by the accused was happened certainly the accused would have lodged the complaint before the Bommanahalli police station instead of lodging before the Mico Layout police , on this count also the defence of the accused cannot be acceptable one. Therefore the accused has failed to prove that, the cheques in question ie Ex.C.1 to C.6 have been obtained by the complainant and his father along with goonda elements forcibly from him.
32C.C.No.23859/17 J
22. However, it is settled law that, once the issuance of cheques in favour of the holder in due course is admitted by the drawer, presumption can be drawn about the existence of legally recoverable debt under Sec.139 of NI Act, terms in favour of holder in due course. "The Hon'ble Apex Court of India in Rangappa Vs. Mohan's Case reported in 2010(11) SCC 441 held that, issuance of cheque would create a presumption with respect to legally enforceable debt in faovur of the payee of the cheque, however the said presumption is rebuttable." In the present case though the accused has admitted the issuance of cheques and also signatures thereon belongs to him but has denied the transaction in question and issuance of the cheques to the complainant towards discharge of the debt in question, hence though initial presumption drawn in favour of the complainant, but the said presumption is rebuttal, in such circumstances it has be examined as to whether the accused has rebutted the presumption successfully or not. It is also settled law that, the accused in a proceedings U/s.138 of N.I.Act has two options i.e. the accused 33 C.C.No.23859/17 J can either show that, consideration and debt did not exists or that, under particular circumstances of the case the non existence of consideration and debt is so probable that, a prudent man ought to suppose that, no consideration and debt existed and in order to rebut the statutory presumption accused is not expected to prove his defence beyond reasonable doubt as expected of the complainant in Criminal trial and the accused may adduce direct evidence to prove that the cheque in question was not supported by consideration and there was no debt or liability to be discharged by him and the court need not insist in every case that, the accused should disprove the non existence of consideration that, by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. In this regard it is relevant here to refer the decision of Hon'ble Apex court of India reported in LAWS (SC) 20198 82 in the case of Shri.Dhaneshwari Traders Vs. Sanjay Jain and in another case reported in ( 2020) 12 SCC 500 wherein the Hon'ble Apex court held that " It is well settled that, rebuttal can be made with reference to the evidence of 34 C.C.No.23859/17 J the prosecution as well as of defence" and in another decision reported in (2010) 11 SCC 441 in thecase of Rangappa Vs. Sri. Mohan wherein the Hon'ble Apex Court held that "Ordinarily in cheque bounce cases, what the courts have consdiered is whether the ingredients of the offence enumerated in Sec.138 of Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Sec.139 of the Act, and also held that "it is settled position that, when an accused has to rebut the presumption U/s.139, the standard of proof for doing so is that of preponderance of probabilities". Hence, in view of the principles of law laid down by the Hon'ble Apex Court of India in the above referred decision in order to rebut the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt and the accused may adduce direct evidence to prove his defence or the rebuttal can be make with reference to the evidence of the prosecution and standard of proof for rebuttal of the presumption is that of preponderance of probabilities i.e. something which 35 C.C.No.23859/17 J is probable has to be brought on record by the accused.
23. In the present case as it is already held in the above that, the complainant has miserably failed to prove that, the accused being a constructor and developer and engaged his construction work under the banner of M/s.Prabhavathi Builders and as per request of the accused he has supplied river sand to the accused and in turn the accused is due of Rs.7,50,000/ to him and issued the cheques in question. It is also important here to mention that, according to the complainant the accused has issued the cheques in question individually by admitting the debt and liability ie towards the balance amount of Rs.7,50,000/ but whereas in his cross examination the complainant has categorically admitted that, he himself had written his name on Ex.C.1 to C.3 and C.5 and C.6 hence the very admission of the complainant itself goes to show that the complainant had collected blank signed cheques ie Ex.C.1 to C.3 and C.5 and C.6 from the accused and subsequently got filled his name , if really the accused had issued the Ex.C.1 to C.3 and C.5 and C.6 in favour of the 36 C.C.No.23859/17 J complainant definitely he would have stated that, his name has been written by the accused on Ex.C.1 to C.3 and C.5 and C.6 and issued in his favour, therefore though the accused has admitted his signatures on the cheques but the admission of the complainant corroborates his defence that, the complainant had collected his cheques without mentioning his name, therefore a serious doubt created with regard to issuance of cheques ie Ex.C.1 to C.3 and C.5 and C.6 towards discharge of the liability in question as it is not the case of the complainant that, the accused has issued Ex.C.1 to C.3, C.5 and C6 without mentioning his name and subsequently with the consent of the accused he got filled his name and presented the above said cheques for encashment as claimed by the complainant in his complaint and evidence.
24. The learned counsel for the accused during the course of argument has also specifically argued that, the complainant in this case has claimed that, he has supplied the River sand to the accused for construction of project carrying at Konappana agrahara and in order to pay the balance amount of 37 C.C.No.23859/17 J Rs.7,50,000/ the accused has issued the cheques in question, but the complainant has not produced any documents to show that, he had taken permission or license from the government for supply of Rivers sand, therefore the claim made by the complainant itself is illegal and the alleged debt in question is not enforceable debt against the accused. Therefore as a matter of fact there is no existence of any legally recoverable debt on this count only the claim made by the complainant is to be rejected in limine and complaint has to be dismissed as there is no existence of legally recoverable debt or liability against the accused. In this regard the learned counsel for the accused relied upon the decision of Hon'ble High Court of Katakana decided in Crl.P.No.1387/2011 dt; 6.7.2018 in the case of R. Parimala Bai Vs. Bhaskara Narasimhaiah", On careful pleading of principles of law laid down by the Hon'ble High Court of Karnataka in the said decision it is held that: " the complainant has paid money for the purpose of securing job for his son, even without examining whether the accused has got any authority to provide job to his son or not and 38 C.C.No.23859/17 J what is the procedure that is required to be followed by the HAL factory for the purpose of selecting any candidate for the purpose of providing any job, therefore without examining anything, the complainant himself has entered into void contract with the accused and paid money as against public policy for illegal purpose., therefore under the provisions of Sec.23 of Indian Contract Act it is crystal clear that, if on the basis of void contact and particularly if the consideration is illegal and consideration is for immoral or illegal purpose or which is against the public policy then the whole transactions become void, the consideration paid in such contract becomes an illegal consideration and when it is said it is illegal or unlawful consideration it cannot be at any stretch of imagination called legally recoverable debt". Now. In the present case, the claim made by the complainant is required to be consider as to whether the cheques in question have been issued for legally recoverable debt or whether 39 C.C.No.23859/17 J there exist a legally recoverable debt or liability as against the accused. In this regard, it is relevant here to refer the admissions of the complainant ie., the complainant in his cross examination has admitted that, he was supplying the River sand to the accused from Kollegal and Talakadu and he do not possess the license to do the sand business but he volunteers that, there would not be any such license and the Government issued permit by fixing a price for a particular load. It is also admitted that, according to him there is nexus between the government and himself in order to carry out the sand business and he have not maintained the books of accounts in respect of his sand business . The accused has also admitted that, " ನನನ ನನನ ಮರಳನ ವವಪ ರದ ಸಸಬಸಧ ಯವದದ ತರಗ ಪವತಸನತತಲಲ . ಸರರರದ ಪರವನಗ ಇಲಲ ದ ಮರಳನ ವವಪ ರ ಮಡನವದನ ರನನನನ ಬಹರ ನ ವದನ ನಜ. ನನನ ರನನನನ ಬದದ ವಗ ಮರಳನ ವವಪ ರ ಎನನ ಮಡನತತದ ಎನನ ನ ವದನನ ನ ಸಬದತನ ಪಡಸನವ ಸಸಬಸಧ ಯವದದ ದಖಲ ಹಜರನ ಪಡಸಲಲ ಎನನ ನ ವದನ ನಜ." Hence, the above admissions of the complainant makes it clear that, though he is carrying the business of supply of River Sand but in order to carryout the said business he has not obtained any license or permit from the 40 C.C.No.23859/17 J government and the complainant himself admitted that without obtaining the licence or permit from the government carrying business in supply of River sand is illegal and he has not produced any documents to show that, he is legally doing supply of River sand business and and also admitted that, he is not paying any taxes to the Government with regard to his sand business, therefore carrying of sand business by the complainant as claimed in his complaint and evidence appears to be he is doing business without obtaining valid permission or license from the Government and is also having knowledge that, supply of sand or carrying sand business without obtaining license fro the Government is illegal business, in such circumstances it can be held that, the complainant himself admitted that, he is doing sand business without obtaining any valid license from the Government that too without paying taxes to the Government amounts to an illegal act as admitted by the complainant himself. If such being the fact then the claim made by the complainant in this complaint and in the evidence of the complainant that, the accused has issued the cheques in question 41 C.C.No.23859/17 J towards supply of River sand is amounts to claiming of illegal profit or gain from the accused, therefore the act in supply of river sand without obtaining valid license or permit from the Government itself is against the public policy and when the claim made by the complainant is against the public policy then the whole transportation become void and illegal claim or for unlawful consideration and same cannot be at any stretch of imagination called as a legally recoverable debt as held by the Hon'ble High court of Karnataka in the above referred decision, therefore the claim made by the complainant in his complaint and evidence it can be outrightly said that it is an illegal transaction and illegal consideration in such circumstances there is bar for the complainant to receive the amount and there is no existence of legally recoverable debt or liability as against the accused and illegal consideration is relied upon by the complainant himself then the presumption U/s.139 of N.I.Act cannot be raised in favour of the complainant and Sec.138 of N.I.Act mandates there should be an existence legally recoverable debt ie., the claim made by the complainant should be in respect of existence of legally recoverable debt.
42C.C.No.23859/17 J Therefore for the above said reasons when the complainant himself admitted that, carrying of sand business without obtaining license fro the Government is an illegal act and he has not produced the documents show that, he is legally doing the supply of sand business in such circumstances it cannot be held that, there exists a legally recoverable debt or liability as against the accused. Therefore for the above said reasons even for sake of discussion if it is assumed that, the complainant has supplied River sand to the accused as per his request in such circumstances also the complainant is not entitled to claim the amount from the accused unless and until he proved that, he was doing the supply of sand business by obtaining valid permission or license from the government and by paying the taxes but the complainant has not produced any documentary evidence to show that he was doing sand business by obtaining valid permission from the government, hence the complaint filed by the complainant itself is not maintainable as there is no existence of legally enforceable or recoverable debt or liability as against the accused.
43C.C.No.23859/17 J
25. Therefore from careful perusal of the oral and documentary evidence of the complainant and accused makes it clear that, the accused has successfully rebutted the presumptions available to the complainant not only by the materials placed by the complainant but also by leading his evidence and proved that, complainant has failed to supply the alleged River sand to the accused and in turn the accused has issued the cheques in question towards discharged of the balance amount as claimed by him. No doubt, some discrepancies have been elicited by the complainant during the crossexamination of Accused but there are no proof regarding the same, however when the complainant himself has failed to establish his case beyond all reasonable doubt, he cannot be permitted to find fault in the defence of the Accused. Hence the standard of proof is expected from side of the complainant is proof beyond all reasonable doubt and in the present case complainant has failed to prove his case beyond all reasonable doubt on the contrary the Accused has successfully rebutted the presumption available infavour of the complainant U/s.118 and 139 of N.I. Act by taking reasonable and probable defence, 44 C.C.No.23859/17 J accordingly for the above said reasons this point is answered in the 'Negative'.
26. Point No.2: In the light of discussions made at above point and for the said reasons this point is answered in the negative and it is just and proper to pass the following : ORDER The complaint U/s.200 of Cr.P.C. filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C.
the accused is acquitted for the offence punishable U/sec.138 of N.I.Act.
Personal bond executed by the Accused stands cancelled.
Cash surety deposited by the Accused is hereby return to the Accused (If not lapsed) after appeal period is over on his proper identification and acknowledgment.
(Directly dictated to the stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 4th day of December 2021).
(SRI.S.B. HANDRAL), XVI ACMM, Bengaluru City.
45C.C.No.23859/17 J ANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri. Irfan Khan
2. List of documents exhibited on behalf of the Complainant: Ex.C.1 to C.6 : Original Cheques 05.05.2017, 10.05.2017, 15.05.2017, 20.05.2017, 25.05.2017 and 30.05.2017 Ex.C1(a)to C6(a): Signatures of the accused Ex.C.7 & C.8 : Bank Memos Ex.C.9 : Office copy of the Legal Notice Ex.C.10 : Postal Receipt Ex.C.11 : Postal acknowledgement Ex.C.12 : Reply Notice.
Ex.C.13 to 41 : Receipts/Material received note
Ex.C.42 & 43 : Letters issued by Fullerton
India Bank dt: 18.12.2012
Ex.C.44 to 50 : Photos
Ex.C.51 : C.D
Ex.C.52 : Receipt
3. List of witness/s examined on behalf of the Accused: DW.1 : Sri. Ekambaram B.C.
4. List of documents exhibited on behalf of the Accused: Ex.D.1 : certified copy of the receipt dt:
7.12.2018 46 C.C.No.23859/17 J Ex.D.2 ; certified copy of the acknowledgement of registration of firm Ex.D.3 : certified copy of the Form No.1 Ex.D.4 : certified copy of memorandum of acknowledging receipt of documents Ex.D.5 : certified copy of Form No.5 Ex.D.6 : certified copy of the memorandum of acknowledging receipt of documents Ex.D.7 : Form no.V Ex.D.8 : certified copy of acknowledgement issued by Deputy Registrar Companies Karnataka Bangalore Ex.D.9 : certified copy of acknowledgement of stamp duty payment for certified copies Ex.D.10 : Form1 certificate of incorporation Ex.D.11 : certified copy of the endorsement issued by Deputy register of Companies, Karnataka Bangalore Ex.D.12 : certified copy of the acknowledgement of stamp duty for payment for certified copies Ex.D.13 : certified copy of the Form No.32 Ex.D.14 : Notarized copy of the pan card Ex.D.15 to 17 ;Computer down loaded copy of the Form 26 AS Ex.D.18 : certificate filed U/s.65(B) of Indian evidence Act Ex.D.19 : certified copy of the Judgment passed in CC.No.20324/17 (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.47
C.C.No.23859/17 J 4.12.2021 case called, complainant absent and counsel for complainant absent accused and counsel for accused present. Judgment pronounced vide separate order, ORDER The complaint U/s.200 of Cr.P.C. filed by the complainant for the offence punishable U/sec.138 of N.I.Act is hereby dismissed. No costs.
Acting U/sec.255(1) of Cr.P.C. the accused is acquitted for the offence punishable U/sec.138 of N.I.Act. Personal bond executed by the Accused stands cancelled. Cash surety deposited by the Accused is hereby return to the Accused (If not lapsed) after appeal period is over on his proper identification and acknowledgment. XVI ACMM, B'luru.