Bangalore District Court
M/S. Gurudev Constructions vs Sri.Addanki Rajanikanth on 19 May, 2018
IN THE COURT OF THE XVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated: This the 19th Day of May, 2018
Present: Smt. Saraswathi.K.N, B.A.L., LL.M.,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C. No.28752/2015
Complainant : M/s. Gurudev Constructions,
No.7, 2nd A Cross,
Hanumagirinagar,
Chikkallasandra Main Road,
Subramanyapura Post,
Bengaluru - 560 061.
R/by it's Proprietor,
Sri.N.Purushothama,
Aged about 47 years,
Son of Narasimhaiah,
Business.
(Rep.by K.S.Sreekantha., Adv.,)
- Vs -
Accused : Sri.Addanki Rajanikanth,
S/o.Sri.Addanki Indrasena
Naidu,
Aged about 37 years,
Permanent Address of Irala
(Mandal),
Mallarapalli,
Chittoor District.
Also at:-
No.34, V.K.Residency,
Shivarama Karanth Road,
Chikkallasandra,
Subramanyapura Post,
Bengaluru - 560 061.
2 C.C.No.28752/2015 J
(Rep.by Sri.Satheesha, Adv.,)
Case instituted : 27.11.2015
Offence : U/s 138 of N.I. Act
complained of
Plea of Accused : Pleaded not guilty
Final Order : Accused is Acquitted
Date of order : 19.5.2018
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, the Accused and he are known to each other from 1st week of May 2015 through one Noogala Yoganandam. The Accused is running import and export business at No.30, 2nd Floor, 7th B Main, Jayanagar 4th Block, Bengaluru along with Sri.Noogala Yoganandam. The said Sri. Noogala Yoganandam had assured him for marketing the residential flat and he has received a sum of Rs.3 Lakhs on 9/4/2015 by way of cash and thereafter the said Noogala Yoganandam utterly failed to keep up his promise and hence he suo-moto agreed to take as partner of his real estate business. On that aspect, for settling the amount to outgoing partner Sri.Ramesh Naidu, Mr. Noogala Yoganandam has received a sum of Rs.3,66,000/= as follows:-
i) Rs. 1,66,000/= on 5/5/2015;3 C.C.No.28752/2015 J
ii) Rs.2,00,000/= on 17/5/2015 through cheques of M/s.
Lakshmi Vilas Bank.
3. The Complainant has further submitted that, without having any option, he continued to run his business under the name of "Gurudev Constructions" at the above mentioned address of the Accused. From the date of inception, he has been meeting all the office expenses viz., payment of rent, Receptionist Salary, Telephone, Water and Electricity charges etc., and at the convenience of the Accused only, he renovated the office by investing a further sum of Rs.1 Lakh.
4. The Complainant has further submitted that, the Accused had further forced him to invest to purchase the electrical, sanitary and furniture items for a sum of Rs.5 Lakhs on 22/5/2015, Rs.5 Lakhs on 22/5/2015 and Rs.2.5 Lakhs on 4/6/2015, Rs.4 Lakhs on 5/6/2015 and finally a sum of Rs.1.5 Lakhs and in total a sum of Rs.37 Lakhs.
5. The Complainant has further submitted that, he and the Accused jointly visited China for flats related furniture, sanitary and electricity lighting, wall paper items etc., but till date, he has not received any item from the Accused side. Thereafter without having any reason, the Accused has refused to receive the phone calls from him and totally neglected him and failed to honour his commitments.
6. The Complainant has further submitted that, on several his requests and reminders, the Accused issued a cheque bearing 4 C.C.No.28752/2015 J No.000002 dated 1/10/2015 for Rs.12,50,000/= drawn on the Lakshmi Vilas Bank, Banashankari Branch, Bengaluru, with an instruction to present the same and assuring that the same would be honored on it's presentation.
7. The Complainant has further submitted that, as per the instructions of the Accused, when he presented the said cheque for encashment, the same came to be returned with an endorsement "Insufficient Funds" vide Bank Endorsement dated 5/10/2015. Thereafter though he tried to contact the Accused, he could not do so.
8. The Complainant has further submitted that, thereafter he got issued a legal notice to the Accused by RPAD and through Courier calling upon him to pay the amount of Rs.12,50,000/= within 15 days from the date of the receipt of the said legal notices. The notice sent by RPAD was duly served upon the Accused. But inspite of it, he has neither replied to the said legal notice nor has he complied with the demand made therein.
9. Thus it is alleged by the Complainant that, the dishonor of the cheque by the Accused has been malafide, intentional and deliberate. Feeling aggrieved by the conduct of the Accused, he has filed the present complaint praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
10. The Complainant has led his pre-summoning evidence on 9.12.2015. Prima-facie case has been made out against the 5 C.C.No.28752/2015 J Accused and he has been summoned vide the order of the same date.
11. The Accused has appeared before the court on 18.1.2016. He has been enlarged on bail. The substance of the accusation has been read over to him, to which he has pleaded not guilty and has claimed the trial.
12. In his post-summoning evidence, the Complainant has examined himself as PW1 and has filed his affidavit, wherein he has reiterated the averments made in the complaint.
P.W.1 has also produced and relied upon the following documentary evidence:-
Ex.P1 is the disputed cheque, in which, the signature is identified by P.W.1 as that of the Accused as per Ex.P1(a), the Bank memo as per Ex.P2, the office copy of the Legal Notice as per Ex.P3, the Postal Receipt as per Ex.P4, the Courier Receipt as per Ex.P5, the Postal Acknowledgement as per Ex.P6, the un- served Legal Notice as per Ex.P7, the Postal Envelope as per Ex.P8, the two Postal Receipts as per Ex.P9 and P10 respectively, the Postal Acknowledgement as per Ex.P11, the Reply Notice as per Ex.P12, the Certified copy of the FIR as per Ex.P13, the certified copy of the complaint dated 29.8.2015 as per Ex.P14, the certified copy of the FIR as per Ex.P15 and the certified copy of the complaint dated 22.12.2015 as per Ex.P16.
13. Ex.N1, being the Photocopy of a Settlement Agreement dated 1.9.2015 is marked through P.W.1.
6 C.C.No.28752/2015 J14. The statement of the Accused under Sec.313 of the Cr.P.C., has been recorded. He has denied the incriminating evidence found against him and has chosen to lead his defence evidence.
15. The Accused has led his rebuttal evidence by examining evidence on oath as D.W.1 and the gist of his defence is that, he come in contact with the Complainant during the month of May- 2005 through one Yoganandam and the Complainant and the said Yoganandam had an office in the Jayanagar 4th Block. He was looking for an office space in and around the same area and during then he was informed by Yoganandam that, one of their partners had left their office and therefore they were also looking for a partner. Accordingly Yoganandam took him to their office in Jayanagar 4th Block. The said office consisted of two partitions and there during his discussion with the Complainant and with Yoganandam, he informed to them the nature of his export business and by then, he had visited China once.
16. Further according to the Accused, he was securing the furniture, construction related materials to the needy customers and as he wanted to register a firm, he required the office space. Then upon discussion, the value of the office space including the two partitions was calculated at Rs.15 Lakhs. Accordingly, it was decided that each partner had to contribute Rs.5 Lakhs each towards their respective share of the cost of the office space and likewise he was called upon to pay Rs.5 lakhs towards his share of the contribution to the office space, so that the office expenses 7 C.C.No.28752/2015 J could also be shared equally among all three of them. At that time, he was not aware as to what the dispute among the Complainant, Yoganandam and their earlier partner Ramesh Naidu was? Hence he agreed to pay to Rs.5 lakhs and he paid the said amount of Rs.5 lakhs to the Complainant in the house of the former by cash in the presence of his parents and his wife and also Yoganandam.
17. Thereafter, during the month of May 2015, he occupied the portion of the office space that was given to him and as there was no agreement between the owner of the said office space and him, the Complainant and Yoganandam executed an agreement in his favour during the month of May 2015. On the basis of the said agreement, he registered his firm in the name of ARK Holdings. All these process was done by the Auditor of the Complainant by name Anupama.
18. D.W.1 has further deposed that, thereafter the Complainant got opened one account in the individual name of the former and one account in the name of his firm ARK Holdings in Lakshmi Vilas Bank, Banashankari Branch. Then the Complainant and Yoganandam intended to visit China along with himj for the purpose of survey. As the Complainant knew that, at that time, he did not have sufficient funds with him, he booked the tickets as well as the amount for the purpose of their travel to China both for himself and to Yoganandam. Accordingly, all of three of them visited China for about 8-9 days, where they stayed in the house of his brother and came back. Though they 8 C.C.No.28752/2015 J visited about 3 factories there, they had not made any purchases of any of the materials.
19. It is the further defence of the Accused that, after they returned to India, again a dispute arose between the Complainant and Yoganandam and at that time, Yoganandam told him that he had not received his share from out of Rs.5 lakhs that the former had paid to the Complainant. By then the Complainant had registered a firm in the name of all three of them by name PYR Groups with the knowledge of all of them. Once again, he visited China and came back and thereafter he noticed that, their office here was locked and the entry for him and Yoganandam was denied by the Complainant. The reason assigned by the Complainant for doing so was that both he and Yoganandam had to pay him the extra amount, for which Yoganandam and he approached Jayanagar 4th Block police. There the Complainant got registered a complaint against him and Yoganandam. Accordingly they were summoned to the Police Station, where even the Complainant along with his known persons was present and they decided to settle the matter outside and accordingly they went to a place i.e., Shankar Tours and Travels in Hanumanthnagar. It was on 01.09.2015. There upon discussion, it was decided that, any one among three of them should retain the office space, but none of them was ready to retain it. There it was decided by the persons who were present that he should retain the office by paying Rs.13 lakhs to the Complainant towards the expenses incurred for their China trip and the other office expenses. Accordingly the document at Ex.N-
9 C.C.No.28752/2015 J1 was got executed in the presence of Shankar, Guruprasad, Shanmugam, Sharavanan and Chandru. The Complainant did not sign on the said document on the ground that, it was executed by him (D.W.1) and Yoganandam in his favour and the original of Ex.N-1 was retained by the Complainant. It was done in the presence of the Complainant along with 20-30 other persons.
20. Further according to the Accused, at that time, a cheque for Rs.12.5 lakhs was got issued by him to the Complainant and it was recited in Ex.N-1 that, he had to pay the remaining amount of Rs.50,000/- to the Complainant by way of cash. For the clearance of the said cheque of Rs.12.5 lakhs and the payment of Rs.50,000/- by cash, he was given one month's time from 01.09.2015. As on 01.09.2015 he was not given the office keys and during the period of the said one month, though he sought for the office keys, he was not provided with the same. In the meanwhile, both the Complainant and Yoganandam were claiming that, the office space belonged to each of them. In view of the same, he was under the impression that, he would not be able to get the possession of the office space, due to which, he could not honor the cheque of Rs.12.5 Lakhs which was issued by him to the Complainant.
21. In the month of December 2015, the Complainant lodged a complaint against Yoganandam claiming that the office space belonged to him. It was recited in Ex.N-1 that, as on the date of his honoring the cheque for Rs.12.5 Lakhs, he would be 10 C.C.No.28752/2015 J handed over the cheque of Rs.5 Lakhs and the other cheque for Rs.30,000/- and another cheque of Rs.20 lakhs which were in the office premises. But as agreed in Ex.N-1, the aforesaid cheques were not at all given to him by the Complainant. Thereafter he was issued with a legal notice for which he has suitably replied. Accordingly he has prayed for his acquittal.
22. D.W.1 has been cross-examined extensively by the learned counsel for the Complainant.
23. In support of the defence of the Accused, two witnesses to the alleged settlement between the parties on 01/09/2015 as per Ex.N1 are examined as D.W.2 and D.W.3 and both of them have deposed before the court that, on 01/09/2015, there was a settlement between the Complainant and the Accused in the office of D.W.2 and as per the said settlement, the Accused had agreed to pay Rs.13,00,000/= to the Complainant and take possession of the office space. It was further decided that, as the Accused had pleaded his inability to arrange the amount of Rs.13,00,000/= immediately, it was decided that, he had to pay Rs.50,000/= by way of cash and the balance amount of Rs.12,50,000/= by way of cheque and it was also decided to record the settlement in the aforesaid terms on a paper for record purpose and the said letter was written by some one on the side of the Complainant.
24. They have further deposed that it was agreed that the Accused should pay a cash of Rs.50,000/= and his cheque for 11 C.C.No.28752/2015 J Rs.12,50,000/= should be cleared within one month from the said date and the Complainant had undertaken to hand over the possession of the office building to the Accused subject to the clearance of the payment to him by the latter and thereafter it was learnt by them that, even after the expiry of one month, the Accused had not cleared his payment.
25. Both these witnesses viz., D.W.2 and D.W.3 have corroborated the defence version, by claiming that, they are the witnesses to the settlement as per Ex.N1 and they have also deposed that, the settlement as per Ex.N1 was arrived at between the parties in their presence. Further they have also identified their signatures on the document at Ex.N1.
26. Thereafter both these witnesses have been cross- examined by the learned counsel for the Complainant.
27. The learned counsel for the Complainant has filed his written arguments, in which, he has prayed for the conviction of the Accused, on the ground that, the Complainant has fulfilled the ingredients of Sec.138 of the N.I. Act. There is no dispute on the part of the Accused that, the cheque in dispute belongs to him and that it bears his signature on it. In fact, even in his reply notice at Ex.P12, the Accused has admitted the issuance of the subject cheque in favour of the Complainant, but he has only denied that, he has issued the same in his favour towards the discharge of his debt or liability.
12 C.C.No.28752/2015 J28. It is also argued that, if really the Accused had given his cheque for some other purpose or for the purpose of security to the Complainant, as a prudent man, he would have opted to intimate his banker for the stop payment.
29. It is also argued that, the Accused has failed to prove contrary to the case of the Complainant and there is no rebuttal evidence led by the Accused so as to probabalize his defence version. It is also argued that, though admittedly there was a Complaint and counter complaint between the Complainant and the Accused, according to the Accused, both of them decided to settle the matter out side the police station and accordingly there was an alleged settlement was before one Sri.Shankar/D.W.2, but in the said agreement, there is no signature of the Complainant and he is also not a witness to it. Hence it is clear that the said agreement is a created only for the purpose of the present case.
30. It is also argued that, the Accused has admitted in his cross-examination with regard to the transaction and the business trip from Bengaluru to China for the purpose of the purchase of the building materials, but he has only denied having booked the items and the receipt of the advance amount from the Complainant only with an intention to avoid from his liability under the subject cheque.
31. It is also argued that, the Accused has not produced any documents to show that, he has invested on various 13 C.C.No.28752/2015 J occasions for office development, renovation and other works and also for the purpose of the purchase of the materials from Chennai and this clearly establishes the fact that, the cheque in dispute has been issued by him in favour of the Complainant towards the discharge of his liability. Hence, on these among other grounds, he has prayed for the conviction of the Accused.
32. In support of his arguments, the learned counsel for the Complainant has relied upon the following decisions:-
i) Shivamurthy Vs., Amruthraj and
ii) Krishna Janardhan Bhat Vs., Dattatreya G. Hegde, reported in AIR 2008 SC 1325.
33. On the contrary, the learned Defence Counsel has addressed his oral arguments, during the course of which, he has prayed for the acquittal of the Accused on the following grounds:-
i) The Complainant has failed to prove his case beyond reasonable doubt and the Accused has raised his defence first in point of time by causing the reply notice as per Ex.P12. There is no rejoinder to the said reply notice caused by the Complainant.
ii) The Complainant has failed to prove his claim that, he has paid Rs.37,00,000/= by way of cheques and cash to the Accused for the purpose of his business as claimed by him in his complaint and on the contrary, the Accused has probablized his defence that the documentary evidence at Ex.N1 which is corroborated with the evidence of D.W.2 and D.W.3, who are the independent witnesses.14 C.C.No.28752/2015 J
iii) The Complainant has failed to disprove the defence theory as put forth by the Accused and merely because the Accused has admitted his signature on the subject cheque, it does not lead to an inference that, he is liable under the subject cheque. Hence, he has prayed for the acquittal of the Accused.
34. I have considered the submissions and perused the record carefully.
35. Sec.138 of the Negotiable Instruments Act has been enacted to lend credibility to the financial transactions.
The main ingredients of the offence under Sec.138 of the Negotiable Instruments Act are:-
(i) Drawing up of a cheque by the Accused towards payment of an amount of money, for the discharge, in whole or in part, of any debt or any other liability;
(ii) Return of the cheque by the Bank as unpaid;
(iii) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of the notice under the proviso (b) to Section 138.
36. The Explanation appended to the Section provides that, the "debt or other liability" for the purpose of this Section means a legally enforceable debt or other liability.
37. Apart from this, Sec. 139 of the Negotiable Instruments Act lays down a presumption in favour of the holder of cheque in the following terms:-
15 C.C.No.28752/2015 J"It shall be presumed, unless the contrary is proved, that:-
The holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, of any debt or other liability".
38. Also, Sec. 118 of the Negotiable Instruments Act states, "Until the contrary is proved, the following presumptions shall be made:-
(a) 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."
39. Thus, the Act clearly lays down the presumptions in favour of the Complainant with regard to the issuance of the cheque by the Accused towards the discharge of his liability in favour of the Complainant.
40. Under the scheme of the Act, the onus is upon the Accused to rebut the presumptions in favour of the Complainant by raising a probable defence.
41. It is a well settled position of law that the defence of the Accused, if in the nature of a mere denial of the case of the Complainant will not be sufficient to hold it as a probable defence. The bare denial of the passing of consideration apparently does not appear to be any defence. Something which is probable must be brought on record for getting the benefit of shifting the onus of proof to the Complainant.
16 C.C.No.28752/2015 J42. It is also a well settled position of law that, once the cheque is proved to be relating to the Account of the Accused and he accepts and admits the signature on the said cheque, then the initial presumption as contemplated under Sec. 139 of the N.I.Act has to be raised by the courts in favour of the Complainant. The presumption referred to in Sec.139 of the N.I.Act is a mandatory presumption and not a general presumption, but the Accused is entitled to rebut the said presumption. What is required to be established by the Accused in order to rebut the presumption is different from each case under given circumstance. But the fact remains that a mere plausible explanation is not expected from the Accused and it must be more than a plausible explanation by way of rebuttal evidence. The defence raised by the Accused by way of rebuttal evidence must be probable and capable of being accepted by the court.
43. No doubt the initial mandatory statutory presumptions under Sec.118 and 139 of the N.I.Act are in favour of the Complainant. However they are rebuttable presumptions and the Accused is expected to rebut the presumptions by raising a probable defence.
44. Such being the legal position, it would be pertinent to refer to the defences raised by the Accused to rebut the presumptions in favour of the Complainant in this case.
17 C.C.No.28752/2015 J45. In the present case, admittedly there is no dispute with regard to the acquaintance between the parties and the fact that, the cheque in dispute belongs to the Accused and that and it bears his signature and that he has issued the same in favor of the Complainant. There is also no dispute with regard to the fact that the Accused and the Complainant along with one Noogala Yoganandam had occupied the office space on the basis of sharing basis in the month of May 2015. It is also not in dispute that the Accused was introduced to the Complainant by the said Noogala Yoganandam, who was the original tenant in the said office space.
46. Likewise there is also no dispute with regard to the fact that, the Complainant, the Accused and Noogala Yoganandam had visited China for their business purpose and that the entire expenses of the said trip was borne by the Complainant alone.
47. However, it is interesting to note that, according to the Complainant, he has paid Rs.37 Lakhs to the Accused by way of cheques and cash as he was forced to invest the amount to purchase the electrical, sanitary and furniture items from China and for this purpose he claims to have paid the amount to the Accused from 22.5.2015 to 5.6.2015. however it is seen that, though the Accused has seriously denied the receipt of any such amounts from the Complainant, except the amount of Rs.4 Lakhs which he claims that the Complainant had transferred to his account through RTGS for the purpose of exchange of currency, the Complainant has miserably failed to substantiate his claim of 18 C.C.No.28752/2015 J having made any such payment to the Accused, at least the ones which he claims to have made through cheques.
48. No doubt, the Complainant cannot be expected to produce any documentary proof in respect of his claim of having made payments to the Accused by way of cash, but there was no impediment for him to produce either his Bank passbook/s or statement of accounts to substantiate this claim. However for the reasons best known to him the Complainant has failed to do so and as such an adverse inference is liable to be drawn against him under Sec.114(g) of the Evidence Act.
49. It is further pertinent to note that, though the Complainant has alleged even in his complaint at Ex.P10 that the Accused and Noogala Yoganandam have collected an advance amount of Rs.37 Lakhs from him by assuring him of supplying the building materials from China and they have cheated him, interestingly there is no piece of documentary evidence led by him in this regard.
50. Moreover, if the claim of the Complainant in this regard was really true, then he ought to have possessed some documentary proof in this regard. However it is elicited in his cross-examination that the materials were proposed to be purchased by him, but the Accused has not actually supplied them to him and he has further claimed that, he was not given any quotation in respect of the materials that were proposed to be purchased by him and he has admitted that he has not 19 C.C.No.28752/2015 J produced any documents before the court to show the list of materials that were proposed to be purchased by him.
51. Now when the entire case of the Complainant is based upon his claim that, he has parted with a huge sum of Rs.37 Lakhs that too for the purpose of purchasing the materials from China, then he is bound to possess some documentary proof either in the form of a quotation or the list of materials that he had proposed to purchase, if his claim in this regard was really true. However the claim of the Complainant that, he does not possess any such documentary proof creates a serious doubt about his case.
52. Moreover, if the claim of the Complainant with regard to his alleged payments of the amounts by him to the Accused by way of cheques was really true, then the former could have proved the same by producing the relevant documentary evidence in this regard. But the non-production of the relevant documentary evidence in this regard also creates a serous doubt about the case of the Complainant.
53. Now coming to the defence of the Accused with regard to his transaction with the Complainant, no doubt he has not been able to prove his alleged payment of Rs.5 Lakhs to the Complainant by way of cash as claimed by him. however it is pertinent to note that, the entire defence of the Accused is based upon the documentary evidence at Ex.N1, which is the photocopy of an agreement of settlement alleged to have been entered into 20 C.C.No.28752/2015 J between him, the Complainant and Noogala Yoganandam in the shop of D.W.2 and in the presence of D.W3 and such other several persons on 1.9.2015.
54. The defence of the Accused is that, as per the said settlement arrived at among them on 1.9.2015, the Complainant had to hand over the office premises to him, subject to which he had to honor the subject cheque of the present case within one month from then and thereafter the Complainant had to return the subject cheque of C.C.No.28751/2015 for Rs.5 Lakhs, his another cheque for Rs.30,000/= and another cheque for Rs.20 Lakhs which were in the office premises.
55. However the defence of the Accused is that, as the Complainant failed to hand over the possession of the premises to him as was agreed under Ex.N1, he did not honor the subject cheque for Rs.12,50,000/= within the agreed time as per Ex.N1. But it is seen that, the Complainant has categorically denied the settlement as per Ex.N1 and he has claimed that the document at Ex.N1 is a created one. According to the Complainant, as Ex.N1 does not bear his signature, it is a created document by the Accused.
56. However it is pertinent to note that, the Accused has examined two witnesses to Ex.N1 as per D.W.2 and D.W.3, who have corroborated the defence of the Accused with regard to the settlement as per Ex.N1. No doubt these witnesses, according to the Complainant, are not known to him. But the evidence of 21 C.C.No.28752/2015 J these witnesses could be accepted by this court to the extent of coming to the conclusion that, there was a settlement among the parties as per Ex.N1 in the presence of D.W.2 and D.W.3.
57. It may not be out of place to mention here that, though the Complainant has seriously denied the alleged settlement as per Ex.N1, by examining the witnesses viz., D.W.2 and D.W.3, the Accused has been able to place some evidence before this court, which has the effect of creating some doubt in the case of the Complainant. In such circumstance, the onus of proving his case beyond reasonable doubt is upon the Complainant, which he has miserably failed to discharge in this case.
58. Moreover the defence of the Accused that though the Complainant was supposed to hand over the office space to him within a month from 1.9.2015 and that inspite of the issuance of the cheque for Rs.12,50,000/= by him to the Complainant, the latter did not do so and instead he had kept the office locked is corroborated with the own documentary proof led by the Complainant as per the averments in the complaint at Ex.P16. the careful reading of the averments of Ex.P16, being the certified copy of the complaint dated 22.12.2015 lodged by the Complainant against Noogala Yoganandam goes to show that as on 22.12.2015, the possession of the office premises continued to be with the Complainant and that there was dispute between the Complainant and the said Noogala Yoganandam. The averments in the said complaint also goes to show that the Complainant himself had kept the office premises locked since September 22 C.C.No.28752/2015 J 2015. In such circumstance, the defence of the Accused that for the same reason he did not honor the subject cheque of this case for Rs.12,50,000/= seems to be probable.
59. Moreover it could be seen that though the Accused has raised his defence at the earliest point of time by causing the reply notice as per Ex.P12 in respect of the subject cheque of this case, there is no rejoinder to the same by the Complainant.
60. Therefore the appreciation of the entire evidence on record clearly goes to show that, the Complainant has utterly failed to plead and prove as to how the Accused is liable to him under the subject cheque and he has also failed to prove the existence of the legally enforceable liability as against him by the Accused. On the contrary, the Accused has been successful enough to place some probable evidence before this court which is sufficient to create serious doubt in the mind of this court about the case of the Complainant.
61. Therefore, by appreciating the entire evidence available on record, I have no hesitation to hold that, the Complainant has utterly proved his case beyond reasonable doubt and on the contrary, the Accused has probabalized his defence and thereby he has successfully rebutted the presumptions available in favour of the Complainant under Sec.118 and 139 of the N.I.Act. Accordingly, I proceed to pass the following:-
23 C.C.No.28752/2015 JORDER By exercising the power-conferred u/s 255(1) of the Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act.
His bail bond and surety bond stands discharged. (Dictated to the Stenographer, transcribed by her, print out taken by her, verified, corrected and then pronounced by me in the open court on this the 19th day of May, 2018).
(SARASWATHI.K.N), XVI ACMM., Bengaluru City.
ANNEXURE
1. List of witness/s examined on behalf of the Complainant:-
P.W.1 : Sri.N.PURUSHOTHAMA;
2. List of documents exhibited on behalf of the Complainant:-
Ex.P1 : Original cheque; Ex.P1(a) : Signatures of the Accused; Ex.P2 : Bank memo; Ex.P3 : Office copy of the Legal Notice; Ex.P4 : Postal Receipt; Ex.P5 : Courier Receipt; Ex.P6 : Postal Acknowledgment; Ex.P7 : Returned Notice; Ex.P8 : Postal Envelope; Ex.P9 & 10 : Postal Receipts; Ex.P11 : Postal Acknowledgment; Ex.P12 : Reply Notice; Ex.P13 : C/c of FIR in Crime No. 284/2015; Ex.P14 : C/c of the Complaint dated 29.8.2015; Ex.P15 : C/c of FIR in Cr.No.390/2015; Ex.P16 : C/c of the Complaint dated 22.12.2015.
3. List of witness/s examined on behalf of the Accused:-
D.W.1 : Sri. Addanki Rajanikanth;
24 C.C.No.28752/2015 J
D.W.2 : Sri. Shankar;
D.W.3 : Sri.Guruprasad K V.
4. List of documents exhibited on behalf of the Accused:-
Ex.N1 : Photocopy of the Settlement Agreement (Marked through P.W.1) XVI ACMM, BENGALURU CITY.25 C.C.No.28752/2015 J
19.5.2018 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power-
conferred u/s 255(1) of the Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act.
His bail bond and surety bond stands discharged.
XVI ACMM, BENGALURU CITY.
26 C.C.No.28752/2015 JC.C.No.28751/2018 19.5.2018 Judgment pronounced in the open court vide separate order.
ORDER By exercising the power-
conferred u/s 255(1) of the Cr.P.C., the Accused is hereby acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act.
His bail bond and surety bond stands discharged.
XVI ACMM, BENGALURU CITY.