Bangalore District Court
Ms Maxtronic Impex Pvt Ltd. Rep By Suresh ... vs Ms Gee Pee Infotech Pvt Ltd on 22 November, 2024
1 CC No.9245/2016
KABC030229722016
IN THE COURT OF XXVII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU
Present: Sri. Maruthi.K B.A., LL.B.,
XXVII A.C.J.M Bengaluru.
Dated: This the 22nd day of November, 2024
C.C. NO.9245/2016
Complainant : M/s Maxtronic Impex Pvt.Ltd.,
1094, unit 36 & 37,
Mezzanine Floor,
SPA Plaza, OTC Road,
Bangalore-56002.
Represented by its Director,
Mr.Suresh Kumar Jain
(Rep by Sri. V.S., Adv.)
V/s.
Accused : 1. M/s GEE PEE INFOTECH
PVT.LTD.,
34/1Q, Ballygunge Circular Road,
Kolkata-700019
2. Bijay Kumar Agarwal,
Director,
M/s GEE PEE INFOTECH
PVT. LTD.,
34/1Q, Ballygunge
Circular Road,
Kolkata-700019.
3. Kalpana Agarwal, (Quashed)
Director,
M/s GEE PEE INFOTECH PVT.
LTD., 34/1Q, Ballygunge circular
Road, Kolkata-700019.
2 CC No.9245/2016
4.Anu Singh, (Withdrawn)
Secretary,
M/s GEE PEE INFOTECH
PVT.LTD.,
34/1Q, Ballygunge Circular Road,
Kolkata-700019.
(Reptd by Sri.B.R.,Adv.,)
(Case against accused No.4 was
withdrawn by the counsel for the
complainant and case against accused
No.3 was quashed by the Supreme Court
of India in Crl.Pet.No.330/2023)
Offence : U/s.138 of Negotiable
Instruments Act.
Plea of the accused : Pleaded not guilty
Final Order : Acquitted
Judgment Date : 22.11.2024
*****
JUDGMENT
The complainant company has filed complaint U/Sec.200 of Code of Criminal Procedure against the Accused for the offence punishable U/Sec.138 of Negotiable Instrument Act.
2. The facts of the case in brief are as follows:-
It is the case of the complainant that, complainant company is the duly appointed Consignment Agent as accused No.1 company M/s Gee Pee Infotech Private Limited to manage and operate the sale of Mobile 3 CC No.9245/2016 Handsets and Allied telecommunications Equipments in the brand name GEE PEE in the state of Karnataka. Further accused No.2 to 4 have been in charge and responsible to the accused company for the conduct of the business of accused company and actively involved in the day to day affairs of the accused company. In that capacity they have been jointly and severally dealing with the complainant company for and on behalf of the accused company. It is submitted that the accused company is due for a sum of Rs.18,64,576/- to the complainant company during the business transactions. The accused No.2 to 4 on behalf of the accused company have issued a cheque bearing No.131745 dated 31.03.2013 for a sum of Rs.10,00,000/- drawn on ICICI Bank, Ballygunge Branch in favour of the complainant company towards partial discharge of the above said dues which is legally enforceable debt/dues. Further complainant presented the said cheque through its banker The Federal Bank Limited, Dr.Rajkumar Road Branch for realization on 31.05.2013 but the said cheque was returned for the reason "Funds Insufficient" on 4 CC No.9245/2016 01.06.2013. Hence complainant got issued legal notice dated: 22.06.2013 to the accused calling upon accused to repay the amount covered under the aforesaid cheque within 15 days from the date of receipt of notice. The notice was served to all the accused on 27.06.2013 and got issued an untenable reply notice dated 15.07.2013 making baseless allegations with an ulterior motive.
However, the accused have not paid the amount covered by the said cheque to the complainant company. Hence, this complaint.
3. Sworn statement of Sri.Suresh Kumar Jain, Director of M/s Maxtronic Impex Pvt.Ltd., recorded as PW-1 and got marked documents as Ex.P.1 to 19 and ordered summons to the accused. Thereafter, complainant along with advancement application filed application u/s 305 of Cr.P.C., xerox copy of order dated 31.01.2020 passed in CP(IP)355/KB/2018 by the NCLT Kolkata Bench, Kolkata seeking impediment of the official liquidator of the accused No.1 company as a representative of the accused No.1 company. Hence issued notice on the application filed u/s 305 of 5 CC No.9245/2016 Cr.P.C.,to proposed representative of the accused No.1 company mentioned in the said application. Later advocate for the accused No.2 filed applications u/s 203 of Cr.P.C., 227 of Cr.P.C., and 91 of Cr.P.C., the said applications filed u/s 203 & 227 of Cr.P.C., was rejected and the application filed u/s 91 Cr.P.C., by the accused No.2 was allowed and the application filed by the complainant u/s 78 Cr.P.C., was allowed. Sri.KCV advocate for the accused filed memo with CC of order dated 24.03.2021 passed by the Hon'ble High Court of Karnataka, B'lore in Crl.Pet.No.2828/2020 which was filed by accused No.2 to quash the proceedings. Perused the same by my Predecessor Officer and the Hon'ble High court of Karnataka, Bangalore dismissed the Crl.Pet.No.2828/2020 on cost of Rs.5,000/- filed by the accused No.2. Hence NBW was issued against accused No.2 and 4 and notice to proposed representative of accused No.1. Later the accused No.2 appeared through his advocate and he enlarged on bail. Further counsel for accused No.1 to 3 filed application u/s 239 of Cr.P.C., on behalf of accused No.2 and another application u/s 6 CC No.9245/2016 317 (1a) r/w 205 of Cr.P.C., seeking permanent exemption for accused No.2 and the said application filed by the accused u/s 239 of Cr.P.C., was rejected and the application filed u/s 205 seeking permanent exemption was kept in abeyance till payment of cost by the accused. Plea of the accused No.2 was recorded. Substance of accusation was read over to the accused No.2 and he pleaded the case of the complainant as false. Accused No.2 filed memo along with receipt for having paid cost of Rs.3,000/- to the DLSA and prays to consider the application filed u/s 205 of Cr.P.C.. Hence the said application was allowed. Complainant counsel filed application u/s 257 of Cr.P.C., seeking withdrawal of the complaint only against accused No.4. Perused the application. Consequently, complainant was permitted to withdraw the case only against accused No.4. This court has received letter from Hon'ble Apex Court along with the certified copy of the order passed by the Hon'ble Apex Court in Crl.A.No.330/20223. Perused the said order and the Hon'ble Apex Court has quashed the proceedings as against accused No.3.
7 CC No.9245/2016
4. In view of the decision of the Hon'ble Apex Court of India, in the case Indian Bank Association & Ors V/s. Union of India & Ors, reported in (2014) 5 SCC 590 , the sworn statement of the complainant is treated as chief examination of the complainant. The counsel for the accused cross examined PW-1 in fully. Further counsel for the complainant filed application u/s 311 Cr.P.C., to recall PW-1 for further chief. Accordingly, the application was allowed. The accused was granted permanent exemption from appearing during trial. As such the examination of accused u/s 313 of Cr.P.C., was dispensed. Accused himself examined as DW-1 and got marked Ex.D.1 to 14 documents to prove his probable defence and DW-1 was subjected for cross examination by the advocate for the complainant.
5. Heard the arguments of the advocate for the complainant and the counsel for the accused. Perused the records.
6. The following points arise for my consideration:
1. Whether the complainant proves that the cheque bearing No.131745 for a sum of Rs.10,000,00/- dated: 31.03.2013 drawn on ICICI Bank, Ballygunde Branch issued by the accused has been dishonored on the ground of "Funds 8 CC No.9245/2016 Insufficient" and the accused even after receiving the intimation regarding the dishonor of cheque failed to pay the cheque amount within the stipulated period and thereby accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
7. My findings on the above points are as under Point No.1: In the Negative Point No.2: As per final order, for the following:
REASONS
8. Point No.1 : The case of the complainant is that the complainant company appointed consignment agent as accused No.1 company M/s Gee Pee Infotech Private Limited to operate the sale of mobile handsets and allied telecommunication equipments in the brand name GEE PEE. During the course of business transaction between complainant and accused company, the accused company is due for a sum of Rs.18,64,576/- and accused No.2 to 4 gave cheque bearing No.131745 for part payment of Rs.10,00,000/- dated 31.03.2013 drawn on ICICI Bank, Ballygunge but the said cheque was dishonored for the reason "funds insufficient. Therefore complainant sent legal notice calling upon to pay the 9 CC No.9245/2016 said due but complainant got reply with baseless allegations and not repaid the said amount. Hence complainant lodged the complaint.
9. In support of the case, Director of the complainant company has examined as PW.1 and got marked 19 documents at Ex.P.1 to 19. In chief examination of PW.1 has repeated the contents of complaint. Ex.P.1 is the Cheque and Ex.P(a) is the signature of accused. Ex.P2 is the Bank Endorsement. Ex.P.3 is the reply to the Legal Notice. Ex.P4 & 5 are E-mail communications Ex.P6 is the demand notice. Ex.P7 is the Certificate u/s 65(B) of Indian Evidence Act, Ex.P8 is the Minutes of Meeting of the Board of Directors. Ex.P9 is the Consignment Agreement. Ex.P10 to Ex.P12 are three Central Sales Tax form. Ex.P13 to 17 are the Email communications. Ex.P18 is the Ledger Account. Ex.P.19 is the Certificate u/s 65(B) Indian Evidence Act. The counsel for the complainant also relied upon the citation by filing memo.
1. 2021 scc Online sc 75
2. 2023 Live Law (sc) 195
10. The accused in order to prove his defence himself examined as DW-1 and got marked 14 10 CC No.9245/2016 documents. Ex.D.1 to 3 are copies of Email communication, Ex.D4 is the Notice of striking off and dissolution. Ex.D5 is the MOU. Ex.D6 is the Statement of accounts. Ex.P7 is the copy of email communication. Ex.D8 to 10 are the Email communication. Ex.D11 & 12 are the Certificate u/s 65(B) of Indian Evidence Act. Ex.D13 & 14 are the pendrives. In support his evidence counsel for the accused No.2 filed memo along with citations.
1. (2023 1 SCC 578 Dasharathbhai Trikambhai Patel Vs.Hitesh Mahendrabhai Patel and another.
2. (2009) 2 SCC 513 Kumar Exports Vs.Sharma Carpets.
3. AIR 1991 SC 1346 Mahanlal Shamji Soni Vs.Union of India and another.
11. The learned counsel for the complainant vehemently argued that complainant and accused executed the consignment agreement in which the complainant company deposited Rs.50,00,000/- towards the security deposit. The accused was due for Rs.35,64,576/- in which the accused had repaid Rs.17,00,000/- which is also admitted by the accused at the time of his chief examination and remaining balance of 11 CC No.9245/2016 Rs.18,64,576/- has to be paid by the accused, as such accused has given the cheque in issue towards partial payment of Rs.10,00,000/-. Further complainant also established the outstanding amount at Ex.P14 which was issued by accused himself. Further accused had replied to the demand notice at Ex.P3 and the complainant argued that he had furnished all the required documents to the accused as asked at Ex.D1 those documents are marked as Ex.P10 to 12 i.e., Form-F, Ex.P15 i.e.,NOC, Ex.P16 is the mail correspondences. Further accused was due for the aforesaid amount with the complainant and also admitted the cheque at Ex.P1 belongs to him and signature thereon belongs to him and also argued accused executed consignment agreement. Hence sought to convict the accused.
12. Per contra learned counsel for the accused argued that when complaint is filed no authorization was produced by the complainant. Case against the accused No.3 was quashed by Supreme Court of India and case against accused No.4 was withdrawn by the complainant. Moreover the complainant has not mentioned in the complaint about 12 CC No.9245/2016 the transaction took place between the complainant and accused. If the due amount is Rs.18,64,576/- why the partial payment was accepted by the accused. There was Memorandum of Understanding was executed between complainant and accused at Ex.D5 in which both the parties agreed to the terms and conditions. But the condition No.1 and 2 was not complied by the complainant company. Further the complainant company was closed and struck off from the Register of companies act on 17.07.2012 as per Ex.D4, as such the certificate of incorporation of the said company is cancelled but the complainant is conducting the case in his personal interest. In the present case the sworn statement of the complainant was not recorded but it was recorded in CC No.8457/2013 only. Therefore there is no evidence of complainant on record. It is the contention of the accused that post dated cheques have been issued by the accused and also the matter has been settled but not brought in the complaint. Further argued that accused already paid amount to discharge his burden and no legally recoverable 13 CC No.9245/2016 debt is existed as contended by the complainant. Hence, sought to acquit the accused.
13. At this point, I enter in to the domain of defense set up by the accused to ascertain whether he has been able to rebut the presumption as contemplated U/sec.139 of the Negotiable Instruments Act, for which I find it appropriate to examine each and every aspect in detail.
1. Authorization letter
14. It is the contention of the accused that the complainant is not the authorization person of the complainant company to depose evidence on its behalf. In order to substantiate his contention he has argued that the present case was filed on 16.08.2014 before this court. As on date of filing the complainant has not produced authorization letter alleged to have issued by the complainant company. The complainant has produced authorization letter in the year 2024 that to on 14.02.2024 as per Ex.P8. If at all the said authorization was issued by the company as on date of filing of complaint, the complainant could have produced the said authority before his sworn statement. Therefore the authorization letter produced and marked at Ex.P8 is created 14 CC No.9245/2016 subsequent to the filing of the complaint. Therefore the complainant is not authorized person to depose evidence on behalf of the company. With these aspects is concerned it is admitted fact that the complainant is one of the Director of the complainant company no doubt records speaks that as on filing the complaint, the complainant has not produced authorization letter which was marked at Ex.P8. But the same was produced on 14.02.2024 and got marked the said authorization letter at Ex.P8. On its perusal it discloses that Ex.P8 is the Certified Extract from the Minutes of the meeting of Board of Directors of M/s Maxtronic Impex Private Limited held on 27.07.2013 at its registered office wherein it is resolved that the Director of the company i.e., one Suresh Kumar Jain who representing the company was authorized and empowered to conduct proceedings on behalf of the company. With this aspect is concerned the Hon'ble Apex Court in the judgment reported in AIR 2002, between M/s M.M.T.C Ltd., & Anr Vs. M/s Medchl Chemicals & Pharma P.Ltd., wherein the Hon'ble Apex Court held that the person not authorized by the company files the complaint it is not totally illegal. It cannot be a sole ground to quash the 15 CC No.9245/2016 complaint at the threshold itself. This is a defect that can be cured by the complainant at any stage of the proceedings. At any later stage, the company can authorize such person and set-right the defect. When that being the proposition of law that merely because of non production of authorization letter at the time of filing complaint by itself does not means that the said authorization letter was created subsequent to filing of complaint. Further the complainant is one of the Director and the said complainant company comprised of two directors. When the company was represented by one of its director, he or director are Chief Officer of the said company was represented by Director itself the letter of authorization by another director may not be required as the company was not represented by employees of the complainant company or any third persons. Therefore in view of settled proposition of law production of authorization letter at the subsequent stage of trial is not the sole ground to quash the complaint as it was curable defect that was cured by the complainant. As such the arguments advanced by the counsel for the accused is not tenable in the eye of law.
16 CC No.9245/2016
2. Complainant company dissolved
15. It is another contention of accused that the complainant company was struck off on 17.07.2017. In order to substantiate the same he has relied upon Ex.D4 i.e., notice of striking and dissolution of company and contended that when the complainant company was dissolved/struck off the complainant is not capable to maintain the complaint. The present complaint was filed on the individual capacity by the complainant. In order to substantiate his contention he has read over Section 248(5) of the companies Act 2013 and argued that in view of sub section 5 of 248 of companies Act 2013 the entire 11,178/- companies as per annexure have been struck off by the Registrar of companies and the said companies are dissolved by the Registrar of Companies in the Karnataka. As against the argument counsel for complainant does submitted that the complainant company have dissolved on 17.07.2017. The present case is filed in the year 2013 that is on 16.08.2013 at that point of time the company was in existence. Further he also submitted that as per provision of section 248 & 250 of Companies Act 2013 there is no bar to the company to recover liability which are due to the 17 CC No.9245/2016 company. For that the counsel for complainant has read the provision of section 248 (6)(7) and section 250 of Companies Act 2013. Wherein it is stated that for the sake of convenience, I would like to extract sub section 6 & 7 of section 248 & 250 of the Companies Act as here under:-
(6) The Registrar, before passing an order under sub-section (5), shall satisfy himself that sufficient provision has been made for the realization of all amount due to the company and for the payment or discharge of its liabilities and obligations by the company within a reasonable time and, if necessary, obtain necessary undertakings from the managing Director, director or other persons in charge of the management of the company.:
Provided that notwithstanding the undertakings referred to in this sub-section, the assets of the company shall be made available for the payment or discharge of all its liabilities and obligations even after the date of the order removing the name of the company from the register of companies. (7) The liability, if any, of every director, manager or other officer who was exercising any power of management, and if every member of the company dissolved under subsection (5), shall continue and may be enforced as if the company had not been dissolved.
250. Effect of companies notified as dissolved:-
Where a company stands dissolved under section 248, it shall on and from the date mentioned in the notice under sub-section (5) of that section cease to operate as a company and Certificate of Incorporation issued to it shall be deed to have been cancelled from such 18 CC No.9245/2016 date except for the purpose of realizing the amount due to the company and for the payment or discharge of the liabilities or obligations of the company.
16. Reading of above said sections discloses that even though the company stands dissolved u/s 248(5) of said Act it shall be on and from the date mentioned in the notice, the company cease or operate and certificate of incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realizing the amount due to the company and for the payment or discharge of the liability or obligation of the company. On perusal of the records i.e., Ex.D4 dated 17.07.2017 it disclosed that on 17.07.2017, the complainant company and other 11,177 companies have been struck off from the registrar of companies and the said companies are dissolved. But present case in hand was filed on 16.08.2013, therefore it can be ascertained that since filing of complaint till 17.07.2017 the complainant company was in existence. Therefore though company was struck off as sub section 5 of 248 of Companies Act but under sub section (6) & (7) there is clause that the registrar before passing the order under (5) was satisfy himself that sufficient provision has been made for the realization of amount due to the 19 CC No.9245/2016 company and for the payment or discharge of its liability and obligations by the company within a reasonable time, if necessary obtain necessary undertakings from the Managing Director, Director or other persons in charge of management of the company and section 250 of the act deals with except for the purpose of realization of amount due to the company and for the payment or discharge of the liability itself or obligation of the company. Therefore in view of provision section 250 of Companies Act 2013 the company is entitle to realize the amount due to the company. Therefore striking out company from the Registrar of Company on 17.07.2017 will not a bar the complainant to realize the amount due to the company. Therefore the arguments advanced by the counsel for the accused not tenable in the eye of law.
3. Sworn statement not recorded in the present case
17. It is the another contention of the accused that in the present case no sworn statement of the complainant has been recorded. Sworn statement of the complainant has recorded in CC No.8457/2013. Therefore there is no evidence of complainant on record. As such the evidence deposed by PW-1 may not be considered in the eye of law. For that the 20 CC No.9245/2016 counsel for the complainant does submitted firstly the case was filed before XIII ACJM, Bangalore. Later it was directed to the complainant to be filed the complaint in proper jurisdictional court. Hence the case was filed before XIX ACMM, Bengaluru and it was numbered as CC No.8457/2014. Later this court treated the sworn statement of the complainant which was given in CC No.8457/2014 as there is no change in the complaint and its avernments. Record discloses that the case has been returned from XIII ACJM to XIX ACJM, court to file the same before jurisdictional court. In XIX ACJM court the sworn statement of complainant was recorded and thereafter registered in CC No.8457/2014. Later on as per order dated 16.08.2014, by the XIX ACJM, court again complaint has been returned to be filed before proper jurisdictional court. Thereafter the present complaint has been presented in this court. When the complainant has filed sworn statement by way of affidavit in the previous court and his statement was recorded in that court and thereafter it was returned for presentation before proper jurisdictional court. Accordingly, the complaint has been presented before this court. In the meanwhile the 21 CC No.9245/2016 proceedings of the previous case has been transferred to this court on the basis of previous Sworn statement criminal complaint has been registered in this court against the accused vide CC No.9245/2016. Therefore, the proceedings held before previous court was continued in this case. Based on the sworn statement previous court and this court has took cognizance of the offence and registered criminal case against the accused. The factum of taking cognizance of offence by this court and previous court was not at all challenged by the accused at the relevant point of time. Therefore, when the accused not chosen to raise objection regarding taking cognizance of the offence at the relevant point of time, then at the later stage of the proceedings or at the belated stage of the proceedings he cannot take the contention that the order of taking cognizance by this court is not in accordance with law. Therefore, the sworn statement affidavit filed at the first instance and later on same was considered as evidence affidavit of PW-1 and the same was adopted in this case and the accused fully and completely cross examined PW-1 on this aspect. Then it cannot be said that the sworn statement affidavit of complaint is not filed in 22 CC No.9245/2016 present case. Therefore, the arguments advanced by the counsel for accused not tenable in the eye of law.
Legal recovery debt
18. It is the contention of the complainant with regard to transaction between complainant and accused company the accused company is due for sum of Rs.18,64,576/- to the complainant company. In order to outcome said due the accused No.2 to 4 on behalf of accused company issued cheque in question on 31.03.2013 for the sum of Rs.10,00,000/- drawn on ICICI bank, Ballegunde branch, culcutta towards partial discharge of outstanding dues the same is legally enforceable debt. As against this argument counsel for the accused does submitted that since 31.03.2012, the accused issued post dated cheque dated 13.03.2013. On 21.03.2012, 16.02.2013, 10.04.2013 and 16.10.2013 the accused has paid Rs.10,00,051/-, 2,00,015/-, Rs.2,00,000/- & Rs.3,00,000/- respectively. In total the accused has repaid Rs.17,00,000/- to the complainant. The same is admitted by the complainant during cross examination. But the said fact has not been stated in the complaint when the accused has paid the 23 CC No.9245/2016 amount as stated above, it shall be the duty of the complainant to mention the same on the cheque in question. But in the present case the complainant has not endorsed the same. In support of his argument he has relied upon the citation reported in ( 2023) 1 SCC 578 in the case of Dasharatha Bai Trikambhai patel Vs. Hitesh Mahendra Bai patel and another. On going through the complaint averments and notice issued by the complainant marked at Ex.P6, the outstanding due payable to the complainant company by the accused in respect of business transaction is for Rs.18,64,576/- only. In order to substantiate the same the complainant has relied upon Ex.P18 i.e., Ledger Account issued by accused company at Ex.P18. On its perusal it discloses that opening balance is Rs.36,19, 769/- but this court cannot find in any place outstanding due of Rs.18,64,576/- as stated by the complainant. At the time of evidence PW1 admitted the repayment of Rs.17,00,000/- by the accused on various dates. At the time of argument counsel for complainant relied upon the mail correspondence made by the complainant and accused. On the basis of Ex.P4 the 24 CC No.9245/2016 complainant has claiming that the balance is around Rs.18.5 lakh which is due from the accused but the said mail correspondence has been denied by the accused. When the accused denied the mail correspondence or its contents then it is the duty of complainant to prove the same by adducing reliable evidence. But the complainant has failed to do the same. Further the counsel for the complainant at the time of argument submitted that as per Ex.p.13 the mail has been sent from accused No.2 to the complainant stating that EMD amount of the credit balance of the complainant with the accused as 50,00,000/-. Out of that the accused have transferred the sum of Rs.45,00,000/- in the account of medilines after such transfer the EMD amount remains with the accused is only Rs.25,00,000/- but PW1 denied the said mail correspondence alleged to be made by the accused to the complainant as per Ex.P13. When the case of the complainant is that the accused is due of Rs.18,64,576/- and towards partial discharge of the said outstanding due the accused has issued the cheque in question and it is the case of the accused that since 31.03.2012 till 16.10.2013 the accused has paid an amount 25 CC No.9245/2016 of Rs.17,00,000/- on various dates. Out of Rs.18,64,576/- the accused has already paid Rs.17,00,000/- to the complainant. As such there is no legal recovery debt as alleged by the complainant. The evidence of complaint discloses that he has admitted the payment of Rs.17,00,000/- by the accused to the complainant when that being so there is no legal recovery enforceable debt as alleged by the complainant. Except the averments in the complaint i.e., the accused is due for the sum of Rs.18,64,576/-, the complainant has not stated anything about consignment agreement marked at Ex.P9. However at the time of oral argument counsel for the complainant submitted that initial deposit of the complainant to commence business with the accused is Rs.50,00,000/- out of that Rs.25,00,000/- has been transferred by the accused to medilines. After transfer of that amount, the total due is Rs.35,64,576/- payable by the accused to the complainant. Out of that the accused has repaid Rs.17,00,000/- to the complainant which was admitted by PW-1 and there is due of Rs.18,64,576/- by the accused. This aspect of oral argument has not been pleaded in the complaint. Without 26 CC No.9245/2016 there being any pleadings about initial deposit of Rs.50,00,000/- and transfer of Rs.25,00,000/- out of initial deposit by the accused in favour of one medilines and thereafter the outstanding due is Rs.35,64,576/- as alleged by the complainant cannot be belived. It is the only case of the complainant that the accused is due for Rs.18,64,576/-. As per the admission of Pw1 the accused has repaid Rs.17,00,066/- to the complainant at various dates. As such there is no outstanding due of Rs.18,64,576/- as alleged by the complainant. The ledger extract produced by the complainant itself not tallies with the account as narrated by the complainant. When it is the case of complainant that he has made initial deposit of Rs.50,00,000/- with the accused out of that Rs.25,00,000/- has been transferred to one medilines by the accused after that the outstanding due of Rs.35,64,576/- by the accused is to be specifically pleaded and proved by the accused in his evidence. Without there being any complete information in the complaint the oral arguments advanced by counsel for the complainant is not tenable in the eye of law. The 27 CC No.9245/2016 citation relied by the counsel for the complainant is not supported to the case on hand.
19. Mere production of the cheque is not sufficient to prove the ingredients of Sec.138 of N.I.Act. There must be a existing legally recoverable debt against the accused. The complainant has not discharged the initial burden which lies on him. The accused has successfully rebutted the presumption available under Sec.139 of N.I.Act. Therefore complainant has to establish its case beyond reasonable doubt. Hence failure of the complainant to prove due of the cheque amount on the part of the accused may itself probabalize the accused version and lead to conclusion that debt mentioned under the cheque is not legally recoverable. Hence, under these circumstances offence under Sec.138 of N.I. Act is not attracted. Therefore, accused has rebutted legal presumption existing u/s.139 of N.I. Act .
20. In this regard, it is necessary to refer the following decisions :
1. (2020) 15 SCC 348 ANSS Rajashekar V/s.Augustus Jeba Ananth Debt - Financial and Monetary Laws - N.I.Act ,1881, S138, 118, Presumption under Sec.139 - Rebuttable nature of presumption - 28 CC No.9245/2016
Standard of proof to rebut said presumption is preponderance of probabilities -Principles summarised - Held on a probable defence which creates doubt about existence of a legally enforceable debt or liability., prosecution can fail - In determining whether the presumption has been rebutted , the test of proportionality must guide the determination.
2. (2010) 11 SCC 441 Rangappa V/s Sri.Mohan 'N.I.Act, 1881 S.139 Presumption under -Scope of - Held, presumption mandated by S.139 includes a presumption that there exists a legally enforceable debt or liability -However, such presumption is rebuttable in nature - Criminal Trial - Proof Presumption - Generally'.
The principles of the above cases are amply applicable to the case on hand. In view of the principles laid down in the above cases and materials on record, the court comes to the conclusion that the complainant has utterly failed to prove the case beyond all reasonable doubt and has not placed sufficient oral and documentary evidence for convincing the court in order to convict the accused for the offences punishable under Sec.138 of N.I.Act. Hence, Point Nos.1 is answered in the Negative.
21. POINT NO.2 :- In view of my findings to the Points No.1 in the Negative, I proceed to pass the following:-
ORDER The complaint filed by the complainant company against the accused No.1 & 2 is dismissed.29 CC No.9245/2016
Consequently, acting U/s.255(1) of Cr.PC, the accused No.1 & 2 are hereby acquitted for the offence punishable U/s.138 of N.I. Act and bail bond and surety bonds are canceled and accused No.2 is set at liberty. (Dictated to the stenographer directly on computer, corrected and then pronounced in open court by me on this the 22nd day of November,2024) Digitally signed MARUTHI by MARUTHI K K Date: 2024.12.03 12:55:51 +0530 (Maruthi.K) XXVII A.C.J.M., Bengaluru.
ANNEXURE Witnesses examined on behalf of the complainant:
PW1 : Suresh Kumar Jain Documents marked on behalf of the complainant Ex.P1 : Cheque Ex.P1(a) : Signature of accused Ex.P2 : Return memo Ex.P3 : Reply to legal Notice Ex.P4 & 5 : E-mail communications Ex.P6 : Legal notice Ex.P7 : Certificate u/s 65(B) of Indian Evidence Act 1872 Ex.P8 : Authorization Letter Ex.P9 : Consignment agreement Ex.P10 to 12 : Central sales tax Ex.P13 : Email communication Ex.P14 : Email communication regarding Ledger Extract Ex.P15 to 17 : E mail communications Ex.P18 : Ledger Account Ex.P19 : Certificate u/s 65(B) of IE Act Witnesses examined on behalf of the accused:
DW-1 : Bijay Kumar Agarwal 30 CC No.9245/2016 Documents marked on behalf of the accused:
Ex.D1 to 3 : Email communications
Ex.D4 : Form No.STK-7
(Notice of strking of and dissolution)
Ex.D5 : Memorandum Of Understanding
Ex.D6 : Account Statement
Ex.P7 to 10 : Email communications
Ex.D11& 12 : Certificate u/s 65(B) of Indian
Evidence Act
Ex.D13 & 14 : Two Pendrives
Digitally signed by
MARUTHI MARUTHI K
K Date: 2024.12.03
12:55:47 +0530
XXVII A.C.J.M
Bengaluru.