Bangalore District Court
Sri B. Ramu vs Sri P. Vijayakumar on 4 January, 2017
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 4th day of January, 2017
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No.9158/2014
Complainant: Sri B. Ramu
S/o. Late Varadappa Naidu,
Aged Major,
R/at No.25, Avani Sringeri Layout,
6th Cross, BTM VI Stage,
Bannerghatta Road,
Bengaluru - 68.
Accused: Sri P. Vijayakumar,
S/o. K. Padmarajaiah,
Aged major,
R/at No.691, 4th Main,
ISRO Layout,
Bengaluru - 560 0 078.
Also at:
No.275, 17th 'F' main,
EWS Layout,
KHB Layout,
5th Block, Koramangala,
Bengaluru.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found not guilty
Date of order: 4th January 2017
JUDGMENT
The complainant has filed this complaint u/s. 200 of Cr.P.C. against the accused for the offences punishable u/s. 138 of NI Act. 2 CC No.9158/2014
2. The brief fact of the complaint is that;
The Complainant stated that he is a Civil Contractor by profession and the accused being the owner of the property bearing Site No.275, 17th 'F' Main, EWS Layout, KHB Colony, 5th Block, Koramangala contacted this Complainant for construction of the building in the said property consists of ground, first, second and third and fourth floor with stair case and also to build a room at the top of the building and according to the agreement, the construction was started on 25.1.2012 and it was completed within 8 months. As per the contract, the accused had paid a sum of Rs.42,00,000/- from time to time during the construction and after handing over the building, the accused had issued his two cheques towards the balance amount for Rs.5,32,417/- under two cheques bearing No.000053 dtd.24.4.2013 for Rs.3,00,000/- and a cheque bearing No.000054 dtd.24.5.2013 for Rs.2,32,417/- both drawn at Karur Vysya Bank Ltd., ISRO Layout branch, Bengaluru and instructed the Complainant to present the cheques for encashment and it will be honoured on its presentation.
3. The Complainant further stated that he waited the accused to present the cheques before his banker till 10.6.2013 and subsequently he presented both the cheques before his banker, Syndicate Bank, Bannerghatta road branch, Bengaluru for encashment and both the said Cheques returned dishonoured with an 3 CC No.9158/2014 endorsement "insufficient funds " on 11.6.2013 and the same was informed to the accused.
4. The Complainant further stated that as the accused has failed to make payment of the Cheques amount, the Complainant got issued the Legal Notice on 21.6.2013 through RPAD, calling upon the Accused to pay the Cheque amount within 15 days from the date of receipt of Legal Notice to both the working and residential addresses of the accused. The notice sent to the residential address was duly served on the accused on 22.6.2013 however, the another notice was returned with a shara "not claimed". The accused after receipt of Legal Notice, has neither chosen to make payment of the cheques amount nor he has sent his reply by denying the transaction. The Accused knowing fully well that he has no sufficient funds in his bank account, had issued his bogus Cheques with an intention to cheat the Complainant and thereby accused has committed an offence punishable under Section 138 of N.I. Act.
5. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused. The accused appeared through his counsel and he was enlarged on bail. 4 CC No.9158/2014 Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
6. The Complainant got himself examined as PW1 and he got produced 8 documents marked as Ex.P.1 to Ex.P.8 and closed his side of evidence.
7. After closure of the complainant side evidence, accused Statement u/Sec.313 of Cr.P.C. recorded and read over to the accused. The accused denied the incriminating evidence in toto and he intended to lead his evidence. He got examined himself as DW1 and he got produced 4 documents marked as Ex.D1 to Ex.D4. The accused has also got examined a witness from his side as DW2 and closed his side of evidence.
8. I have heard the arguments appearing for both the parties. I have perused the entire records. The learned Counsel for the accused has also filed his written arguments .
9. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
10. My findings to the above point are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
5 CC No.9158/2014
REASONS:
11. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the complainant stepped into the witness-box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
12. PW1 deposed that he is a Civil Contractor by profession and the accused being the owner of the property bearing Site No.275, situated at Koramangala contacted him for construction of the building in the said property consists of ground, first, second and third and fourth floor with stair case and also to build a room at the top of the building and according to the agreement, the construction was started on 25.1.2012 and it was completed within 8 months and as per the contract, the accused had paid a sum of Rs.42,00,000/- from time to time during the construction and after handing over the building, the accused had issued his two cheques towards the balance amount for Rs.5,32,417/- under two cheques bearing No.000053 dtd.24.4.2013 for Rs.3,00,000/- and a cheque bearing No.000054 dtd.24.5.2013 for Rs.2,32,417/- both drawn at Karur Vysya Bank Ltd., ISRO Layout branch, Bengaluru and instructed him to present the cheques for encashment and it will be honoured on its presentation. 6 CC No.9158/2014
13. He deposed that he waited the accused to present the cheques before his banker till 10.6.2013 and subsequently he presented both the cheques before his banker for encashment and both the said Cheques returned dishonoured with an endorsement "insufficient funds " on 11.6.2013 and the same was informed to the accused.
14. He further deposed that as the accused has failed to make payment of the Cheques amount, he got issued the Legal Notice on 21.6.2013 through RPAD, calling upon the Accused to pay the Cheque amount to both the working and residential addresses of the accused and the notice sent to the residential address was duly served on the accused on 22.6.2013 however, the another notice was returned with a shara "not claimed". He deposed that the accused after receipt of Legal Notice, has neither chosen to make payment of the cheques amount nor he has sent his reply by denying the transaction. He deposed that the Accused knowing fully well that he has no sufficient funds in his bank account, had issued his bogus Cheques with an intention to cheat him and thereby accused has committed an offence.
15. PW1 in order to prove his case got produced two original cheques issued by this accused marked as Ex.P1 and Ex.P2. He deposed that the signature found on Ex.P1 and Ex.P2 is that of this accused and he got identified the signature found on the cheques 7 CC No.9158/2014 marked as Ex.P1(a) and Ex.P2(a). He got produced the bank endorsement marked as Ex.P3. He got produced copy of the Legal Notice along with two RPAD receipts marked as Ex.P4, Ex.P4(a) and Ex.P4(b) respectively. He got produced the Postal Acknowledgement Due Card for having served the notice to the accused marked as Ex.P.5. He got produced the unserved postal cover marked as Ex.P.6. He got produced the photograph of his building marked subject to objection with a condition to produce negative marked as Ex.P7. He got produced the revised calculation of his building construction and the said document is marked during the cross-examination of DW1 through confrontation as Ex.P8.
16. Even though the accused admitted the execution of the contract of constructional agreement in-between them with respect to the construction of the building, however, the accused has denied the very fact that he is liable to pay the cheques amount to the Complainant and denied the very fact that he issued his Ex.P1 and Ex.P2 Cheques towards discharge of the liability and the same were bounced on its presentation for encashment. The learned Counsel for the accused subjected PW1 for cross-examination and he extensively cross-examined PW1.
8 CC No.9158/2014
17. PW1 in his cross-examination categorically admitted that he had given quotation for construction of 4 floors of the building including the ground floor construction amounting to Rs.42,00,000/- and even admitted that he constructed 1 to 4 floors on the building without touching the construction of ground floor of the building. He admitted the suggestion that he had already received a sum of Rs.42,00,000/- from this accused towards the construction of the 4 floors of the building.
18. He further admitted that he has not produced his bank account statement before this court to prove the receipt of the amount and even admitted that at the time of issuance of Ex.P1 and Ex.P2 cheques, he had been clearly instructed him not to present the cheques without his consent. He admitted the suggestion that he without the instruction of the accused, presented both the cheques before his banker. He admitted the suggestion that after construction of 4 floors of the building, he demanded extra payment of Rs.5,32,417/- for the construction of the ground floor of the building and as per his demand, the accused had issued his Ex.P1 and Ex.P2 cheques and he further admitted the suggestion that immediately after receipt of Ex.P1 and Ex.P2 from this Complainant, he had executed him receipts. The accused has taken up the defence that after receipt of the additional payment of the construction cost of the ground floor of the property 9 CC No.9158/2014 under Ex.P1 and Ex.P2 cheques, the Complainant has not constructed the ground floor of the building and he completed only 25% of the construction work and subsequently, he left the spot, without completing the construction work and for this reason, he with the help of another contractor, completed his ground floor construction work by spending additional payment of Rs.5,00,000/-.
19. The accused during the cross-examination of PW1 put his defence to PW1 by suggesting him that he without completion of the entire construction of the ground floor of the building, left the spot. Even though the PW1 in his cross-examination denied the said suggestion, however, PW1 has categorically admitted that he has not completed the entire construction work of the ground floor of the building as per the terms of the contract. PW1 stated that he is not aware whether this accused with the help of another contractor, completed the ground floor construction work of the building. PW1 further stated that he is not aware whether this accused had given an application before his banker to make stop payment of his cheques if, the same are presented for encashment on the ground that he has not completed the ground floor construction of the building as per the terms of the contract.
10 CC No.9158/2014
20. As I have discussed supra, even though much has been stated by PW1 in his evidence that he is liable to recover a sum of Rs.5,32,417/- from this accused towards the additional expenses of the ground floor construction of the building. However, even according to PW1, he himself has not completed the entire construction work of the ground floor of the building and it is not his case that he himself after completion of the construction of the entire building including the ground floor, handed over the fully constructed building to the accused. Though PW1 in his cross-examination denied the suggestion that he without complying the terms of the contract and even without constructing the entire construction of the ground floor of the building, presented the cheques of this accused before his banker for encashment without the consent of the accused. On the contrary, as I have discussed supra, PW1 in his cross-examination categorically admitted that he has not completely constructed the construction of the ground floor of the building. Though PW1 has stated that this accused has not paid him the entire construction cost of the ground floor of the building, he did not construct the construction of the ground floor of the building. However, PW1 in his cross-examination admitted that after receipt of Ex.P1 and Ex.P2 cheques, had executed receipts in favour of this accused by clearly admitting and acknowledging that he only after completing the building construction 11 CC No.9158/2014 work of the ground floor of the building, he will present the cheques for encashment before his banker. Even according to PW1, he without completing the entire construction of ground floor of the building, presented Ex.P1 and Ex.P2 cheques before his banker for encashment by violating the terms of the contract and receipts executed by him in favour of this accused.
21. PW1 stated that he has no documents with him to prove that he himself has completed the entire construction of the ground floor of the building and likewise, he has not produced any documents before this court to prove that he himself on his own cost, purchased the materials to construct the ground floor of the building and he constructed the entire construction of the ground floor of the building.
22. Moreover, PW1 has not chosen to produce the statement of accounts maintained by him towards the expenditure incurred by him for the construction of the building. Admittedly, the PW1 has not chosen to produce any piece of document before this court to convince the court how much amount he has received from this accused towards the cost of the construction under Agreement and how much amount he has spent for purchase of building materials and labour and actually how much amount is yet to be recovered from this accused towards the cost of the construction of the building. The 12 CC No.9158/2014 entire complaint averments as well as the testimony of PW1 is silent with respect to the amount received by him from this accused towards the construction of the ground floor of the building and the amount spent by him for the construction of the ground floor of the building. In such situation, without any material proof before this court, it is not possible to believe the testimony of PW1 that the accused is still due of Rs.5,32,417/- towards the construction cost of the ground floor of the building and the accused towards the payment of the said bill amount, had issued his Ex.P1 and Ex.P2 cheques.
23. The accused has taken up the specific defence that he was no due to the Complainant towards the construction of the ground floor of the building and he has already paid the construction cost of his building constructed by this Complainant for 4 floors of his building. He has taken up the further defence that this Complainant has not constructed the ground floor of the building as per the terms of the contract, he is not liable to pay the construction cost of the ground floor of the building and even he is not liable to pay Ex.P1 and Ex.P2 cheques amount to this Complainant.
24. The accused has taken further defence that he with the help of some other Engineer Contractor, completed the construction of the ground floor of the building by paying additional cost of Rs.5,00,000/-. 13 CC No.9158/2014
25. The said defence was put to PW1 during his cross- examination, however, even though the PW1 in his cross-examination denied the entire suggestions put to him, however, he has not chosen to deny a suggestion that this accused with the help of some other Engineer Contractor, completed the construction of the ground floor of the building by paying additional cost. He further denied the suggestion that he presented the cheques for encashment even though there was no instruction from this accused to present the cheques for encashment.
26. Though the PW1 denied the suggestion that the accused is not liable to pay the cheques amount. However, admittedly, the PW1 has not chosen to produce convincing evidence before this court that he after completion of the entire building construction of this accused, handed over the building to this accused and he raised the final bill and towards the payment of the final bill as per the statement of accounts, the accused had issued his Ex.P1 and Ex.P2 cheques for Rs.5,32,417/-.
27. As I have discussed supra, the accused has not only denied the issuance of cheques towards the discharge of legally dischargeable liability but he denied the very fact that as on date of Ex.P1 and Ex.P2 cheques, there existing a legally recoverable debt of other liability on 14 CC No.9158/2014 this accused and this accused by admitting his liability in order to pay the cost of the construction bill amount, had issued his Ex.P1 and Ex.P2 cheques after completion of the ground floor construction of the building. The Complainant in order to prove his burden lies on him, has not chosen to produce any piece of evidence before this court to believe his testimony and to accept his case.
28. Admittedly, the Complainant in this proceedings has not produced the copy of the final bill raised by him towards the cost of the construction and even he has not produced any documents before this court that he demanded this accused to pay a sum of Rs.5,32,417/- towards the remaining construction cost of the ground floor of the building.
29. Likewise, the PW1 has not obtained any documents from this accused after he completed the construction work to convince the court that he successfully completed entire construction work of the building including the ground floor construction of the building and he after handed over the building to the accused, raised final bill and after the accused accepted the entire building, had issued his Ex.P1 and Ex.P2 cheques towards the payment of the remaining construction cost of the ground floor building. The Complainant has not even obtained any document from this accused by admitting his liability to 15 CC No.9158/2014 pay the cheques amount of Rs.5,32,417/-. These facts create a very serious doubt in the mind of court about the conduct and case of the PW1 to raise the remaining construction cost of Rs.5,32,417/- from this accused and also issuance of Ex.P1 and Ex.P2 cheques by this accused towards the payment of his liability.
30. As I have discussed supra, the PW1 has not chosen to produce any piece of document before this court to prove that he has spent an additional amount of Rs.5,32,417/- for the construction of the ground floor of the building apart from the amount received by him from this accused under the construction agreement and he is entitled to recover the said amount from this accused and towards payment of the said bill amount, the accused has issued his Ex.P1 and Ex.P2 cheques.
31. As I have discussed supra, PW1 except adducing the oral evidence that he is entitled to recover the cheques amount amounting to Rs.5,32,417/- from this accused and this accused in order to pay the final bill amount, had issued his Ex.P1 and Ex.P2 cheques for a sum of Rs.5,32,417/-, has utterly failed to prove his case by adducing cogent and convincing evidence before this court. In such situation, the case of the Complainant that the accused by admitting his liability to pay the final bill amount, had issued his Ex.P1 and Ex.P2 cheques towards 16 CC No.9158/2014 payment of the ground floor construction work of the building, cannot be believable and acceptable.
32. Even though the accused has admitted the fact that the Ex.P1 and Ex.P2 cheques were belonged to his bank account and also admitted his signature found on Ex.P1 and Ex.P2 marked as Ex.P.1(a) and Ex.P2(a). However, he has categorically denied the fact that he in order to pay the final bill amount towards construction cost of his ground floor of the building, had issued his Ex.P1 and Ex.P2 cheques in favour of this Complainant and the same was bounced for the reason "insufficient funds".
33. As I have discussed supra, the accused has denied the very existence of liability as on date of Ex.P1 and Ex.P2 cheques. In such situation, the burden is heavily on this Complainant to prove the transaction and to prove that as on date of Ex.P1 and Ex.P2 cheques, there existing a legally dischargeable debt or other liability on this accused and this accused by admitting his liability and to pay the final bill amount of ground floor building construction work, had issued his Ex.P1 and Ex.P2 cheques. The Complainant in order to prove this fact, except adducing the oral evidence, which has been categorically denied by this accused, nothing has been placed before this court to 17 CC No.9158/2014 believe his testimony that as on date of Ex.P1 and Ex.P2 cheques, there exiting a legally dischargeable liability on this accused.
34. Admittedly, the burden is on the PW1 to prove that as on date of Ex.P1 and Ex.P2 cheques, there existing a legally recoverable debt or other liability on this accused and this accused by admitting his liability and in order to discharge his liability, issued his Ex.P1 and Ex.P2 cheques and the same were bounced on its presentation for encashment. In order to prove this fact, there is no evidence from the side of this Complainant. In such situation, without any evidence before this court, it is not possible to believe the testimony of PW1 that as on date of Ex.P.1 and Ex.P2 cheques, there existing a legally dischargeable liability on this Accused and he by admitting his liability in order to discharge his liability, had issued Ex.P.1 and Ex.P2 cheques and the same were bounced on its presentation for encashment. Admittedly, the Complainant except adducing the oral evidence, which has been categorically denied by this Accused, has utterly failed to clear all the doubts aroused in the mind of court by adducing cogent and convincing evidence before this court.
35. However, the Accused in order to prove his defence and also to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act, got examined as DW1. He deposed that the Complainant 18 CC No.9158/2014 agreed to put-up construction work of his building and under the building construction agreement, he had agreed to construct 4 floors of the building along with ground floor for a sum of Rs.42,00,000/- and under the agreement, the Complainant had constructed only 4 floors of the building by leaving ground floor construction work for the construction cost of Rs.42,00,000/-. He deposed that the Complainant demanded further construction cost of Rs.7,00,000/- to construct the ground floor of the building and after negotiations, he agreed to pay additional amount of Rs.5,32,417/- for the construction of the ground floor of the building and accordingly, before the Complainant started his construction work, he had issued him Ex.P1 and Ex.P2 cheques for the entire cost of construction of ground floor of the building for a sum of Rs.5,32,417/- with a strict instruction that he shall not present the cheques for encashment unless he completes the entire ground floor construction work.
36. He deposed that the Complainant after receipt of the cheques, also issued two receipts by agreeing to present the cheques for encashment only after completion of entire ground floor construction work with his consent and he got produced the said receipts executed by this Complainant marked as Ex.D1 and Ex.D2. He further deposed that inspite of receipt of entire construction cost of the ground floor of the building, the Complainant did not construct 19 CC No.9158/2014 the ground floor inspite of his repeated request and demand and as his ground floor construction was stilled, he with the help of the another contractor, completed the construction work by spending additional huge amount.
37. He deposed that he with an apprehension that the Complainant will present his cheques even inspite of completing the ground floor construction work before the banker for encashment, he filed an application before his banker to make stop payment of the cheques and he got produced the said application marked as Ex.D.3 along with endorsement issued by his banker marked as Ex.D.4. He deposed that the Complainant without his knowledge and consent and even without intimating him, presented his cheques before his banker for encashment. He further deposed that he has not received any notice from this Complainant prior to filing of this complaint and as such, he has no knowledge of the notice. He further deposed that the signature found on Ex.P5 document is not that of him and no notice is served on him. He deposed that he is not liable to pay any kind of amount to this Complainant much less the cheques amount. Hence, prays to dismiss the complaint.
38. No doubt, the learned Counsel for the Complainant subjected DW1 for cross-examination by denying his testimony, 20 CC No.9158/2014 however DW1 in his cross-examination denied the entire suggestions put to him and denied that he is liable to pay the cheques amount amounting to Rs.5,32,417/-to this Complainant. Though DW1 admitted the photograph confronted to him and admitted that the said photograph is belong to his building and admitted that in the photograph the ground floor construction was also completed. As the DW1 has admitted the said photograph, the said photograph is marked subject to production of the negative as Ex.P7. Admittedly, the Complainant has not produced the negative of the said photograph. Moreover, the said photograph does not prove that the ground floor construction of the building was construction by this Complainant and he after completing the entire ground floor construction work, handed over the building and subsequently, taken the photograph.
39. Even according to the Complainant the DW1 himself taken the photograph of his building on 24.4.2013 and given it to the Complainant. Though the said suggestion was categorically denied by DW1 however, admittedly, the Complainant except putting some suggestions to DW1 that he is liable to pay a sum of Rs.5,32,417/- to the Complainant and he issued his Ex.P1 and Ex.P2 cheques only after completion of the ground floor construction work, which has been categorically denied by DW1, nothing has been elicited from his 21 CC No.9158/2014 mouth to believe the case of the Complainant and to hold that the accused is liable to pay cheques amount to the Complainant.
40. DW1 categorically denied the suggestion that he himself for his convenience, created and concocted Ex.D1 and Ex.D2 documents for the purpose of this case and obtained the signatures of this Complainant without explaining the contents of the documents. Though the Complainant during the cross-examination of DW1 suggested that the Ex.D1 and Ex.D2 documents are created documents and by playing fraud on the Complainant, obtained his signatures on the said documents. However, the Complainant himself in his cross- examination has categorically admitted the execution of Ex.D1 and Ex.D2 documents in favour of accused after receipt of Ex.P1 and Ex.P2 cheques. In such situation, mere a suggestion to DW1 that the Ex.D1 and Ex.D2 are created documents and with a dishonest intention, he had obtained the signature of the Complainant on the documents that itself will not disprove the contents of Ex.D1 and Ex.D2 documents and it will not prove that these two documents created and concocted documents.
41. Moreover, as I have discussed supra, PW1 in his cross- examination admitted that he has not completed the ground floor construction work of the building even after receipt of Ex.P1 and Ex.P2 22 CC No.9158/2014 as this accused had not paid him additional amount. In such situation, the case of the Complainant that he is entitled for the cheques amount, cannot be acceptable and it holds no merit.
42. The Complainant except putting some suggestion to DW1 that he had issued his Ex.P1 and Ex.P2 cheques in favour of this Complainant to pay the final bill amount of the ground floor construction work of the building, which has been categorically denied by DW1, nothing has been elicited from his mouth to disbelieve his testimony and to discard his documentary evidence marked as Ex.D.1 to Ex.D4 documents.
43. Moreover, the Complainant after this accused led his evidence before this court by producing Ex.D1 to Ex.D4 documents, has failed to lead his rebuttal evidence before this court even though the burden shift on this Complainant to prove the existence of debt or other liability as on date of Ex.P1 and Ex.P2 cheques on this accused.
44. Moreover, the accused in order to prove that he with the help of another contractor, got completed his ground floor construction work, got examined one Sri K.N. Ramachandra Murthy as DW2 and even this witness has deposed that he in the month of July 2013, completed the ground floor construction of this accused building on his request and he has done the tiles work, flooring work and 23 CC No.9158/2014 plastering work of the walls along with sanitary features installation and also installed two rolling shutters and after completing the ground floor construction work, received construction cost of Rs.4,00,000/- with additional rolling shutter cost of Rs.1,00,000/- from this accused. Even though the Complainant denied the testimony of DW2 and subjected him for cross-examination, however nothing has been elicited from the mouth of DW2 to disbelieve his testimony and to prove that the entire ground floor construction work was done by this Complainant and only after completion of the ground floor construction work of the building, he presented Ex.P1 and Ex.P2 cheques for encashment.
45. As I have discussed supra, the Complainant during the cross-examination of DW1, except putting suggestions to him that he had issued Ex.P1 and Ex.P2 cheques towards payment of the final bill amount of the ground floor construction of Rs.5,32,417/-, which has been categorically denied by DW1, nothing has been elicited from his mouth to disbelieve his testimony and or to discard his evidence. As I have discussed supra, the initial burden is always on this Complainant to prove the existence of debt or liability as on date of Ex.P1 and Ex.P2 cheques on this accused and to prove that the accused by admitting his liability in order to discharge his liability, had issued his Ex.P1 and Ex.P2 cheques.
24 CC No.9158/2014
46. As I have discussed supra, the Complainant in order to prove this fact, except adducing the oral evidence that he after completing the ground floor construction work, raised the final bill amounting to Rs.5,32,417/- and this accused towards payment of the said bill amount, had issued Ex.P1 and Ex.P2 cheques, has not chosen to prove the same to the satisfaction of the court.
47. As I have discussed supra, the accused by leading his oral and documentary evidence before this court, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act and successfully proved that the Complainant based on the created document, approached this court and filed this complaint.
48. The Complainant except adducing the oral evidence that he is entitled for the cheques amount from this accused after completing his ground floor building construction work, has not chosen to prove the same to the satisfaction of the court. It is well settled principle of law that the presumption u/Sec.139 of N.I. Act is available to this Complainant only with respect to issuance of cheques for repayment of debt or other liability by this Accused. However, the burden is on this Complainant to prove the existence of debt or other liability as on date of Ex.P.1 and Ex.P2 cheques to the satisfaction of the court and to prove that the accused by admitting his liability and in order to 25 CC No.9158/2014 discharge his liability, had issued his cheques and the same were bounced on its presentation for encashment.
49. Here in this case, the Complainant except adducing the oral evidence that he is entitled to recover a sum of Rs.5,32,417/- from this accused and this accused in order to discharge his liability, had issued Ex.P.1 and Ex.P2 cheques, has miserably failed to prove his case to the satisfaction of the court. The Complainant has utterly failed to prove the existence of legally recoverable debt or other liability on this Accused as on date of Ex.P.1 and Ex.P2 cheques and also to prove that the Ex.P.1 and Ex.P2 cheques issued towards the discharge of his liability.
50. The learned Counsel for the Complainant has vehemently argued before this court that the Accused has totally failed to prove his defence to the satisfaction of the court that this Complainant has misused the cheques collected prior to construction of the ground floor of the property and presented the cheques without his instruction and likewise, he utterly failed to prove that he with the help of DW2, got completed his ground floor building construction work by adducing documentary evidence before this court. He has argued that the accused only with an intention to ran away from his liability to pay the cheque amount, has taken up the false defence before this court that 26 CC No.9158/2014 his cheques were misused by this Complainant had given false evidence before this court and he with an intention to escape from his liability taken up the false defence that he got completed his ground floor building construction work with the help of DW2. He has argued that the entire burden is on this accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act and this accused has failed to rebut the presumption available to this Complainant.
51. He has further argued that the accused even inspite of receipt of Legal Notice, issued as per Ex.P4 prior to filing of this complaint, has neither chosen to make payment of the cheques amount nor he has sent his reply by denying the transaction. He argued that by drawing an adverse inference against the accused that he after receipt of Ex.P4 notice by admitting the contents of the notice, did not resist the claim of the Complainant and by considering all these facts, the accused has to be convicted in accordance with law. The arguments canvassed by the learned Counsel for the Complainant, is not convinced this court and it holds no merit. Merely because, the accused has not sent his reply to Ex.P4 notice it does not become automatic that the Complainant has proved his case beyond all reasonable doubts to the satisfaction of the court. The burden is on this Complainant to prove that as date of Ex.P1 and Ex.P2 cheques there 27 CC No.9158/2014 existing a legally dischargeable debt or other liability on this accused and he in order to discharge his liability, had issued his cheques. This fact was not proved by the Complainant to the satisfaction of the court.
52. Likewise, his further arguments that the Ex.P1 and Ex.P2 cheques were belonged to this accused and even the signature found on the cheques is that of this accused and this accused has also admitted issuance of duly filled up signed cheques in favour of this Complainant and now during the stage of trial, the accused only with an intention to ran away from his liability to pay the cheques amount, has taken up the false defence before this court and therefore, by drawing an adverse inference against this accused that the accused has not successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act, the accused has to be convicted for the offence u/Sec.138 of N.I Act and he has to be sentenced for imprisonment and also to impose fine, is also not convinced this court and it holds no merit.
53. As I have discussed supra, admittedly, the Complainant except adducing the oral evidence that he has spent an additional of Rs.5,32,417/- to construct the ground floor of his building and he constructed the ground floor of the building and after finishing the 28 CC No.9158/2014 construction work, handed over the building of the accused and therefore, he is entitled for the cheques amount as per the construction agreement, has totally failed to prove this fact to the satisfaction of the court by adducing by adducing cogent and convincing evidence before this court. As I have discussed supra, the Complainant in order to prove his case except adducing the oral evidence, has totally failed to prove his case by adducing documentary evidence before this court to the satisfaction of the court. In such situation, the case of the Complainant cannot be acceptable and believable.
54. On the contrary, the learned Counsel for the Accused in his written arguments has stated that there is no burden on this Accused to prove his defence beyond all reasonable doubts and this accused can very well discharge his burden by preponderance of probabilities and even by cross-examining PW1 and this Accused by cross- examining PW1 and also by leading his evidence before this court by producing and marking Ex.D1 to Ex.D4 documents and also by examining DW2, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act, is fully convinced this court.
55. As I have discussed supra, the accused by producing and marking Ex.D1 and Ex.D2 documents, clearly proved that he issued his cheques much prior the Complainant started the ground floor 29 CC No.9158/2014 construction work of the building with a clear instruction not to present the cheques for encashment unless and until he finishes ground floor construction work and with his consent and knowledge. Inspite the Complainant had issued Ex.D1 and Ex.D2 documents, he did not complied the conditions and he without completing the construction of the ground floor of the building, presented the cheques without the consent of the accused.
56. The Complainant has failed to convince this court that the accused only with an intention to ran away from his liability to pay the cheques amount, has created Ex.D1 and Ex.D2 documents for the purpose of this case. In such situation, the written arguments filed by the learned Counsel for the accused, is fully convinced this court.
57. Likewise, his further arguments that the Complainant has totally failed to prove that the accused had issued his Ex.P1 and Ex.P2 cheques in order to pay the final bill amount of construction of his ground floor of the building and as on date of Ex.P1 and Ex.P2 cheques, there existing a legally dischargeable liability on this accused and he by admitting his liability, had issued his Ex.P1 and Ex.P2 cheques and the same were bounced on its presentation. The said arguments, is also fully convinced this court and therefore, it is accepted.
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58. Admittedly, there is no burden on this Accused to prove his defence beyond all reasonable doubts. The Accused can very well discharge his burden by preponderance of probabilities and he has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act.
59. As I have discussed supra, the Complainant has utterly failed to prove his case and to prove that this Accused has committed an offence punishable u/Sec.138 of N.I.Act. The oral and documentary evidence adduced before this court by the Complainant, is not sufficient and convincing to bring home the guilt of the Accused beyond all reasonable doubts. The entire burden is on this Complainant to bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. Unless the Complainant is discharge his initial burden, no burden will shift on this Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I Act. The Complainant has utterly failed to prove that the Accused has committed an offence punishable u/Sec.138 of N.I. Act and therefore he is liable for punishment. In such situation, the benefit of doubt goes in favour of this Accused. Hence, by taking into consideration of the facts and circumstances and evidence available on record, I answer Point No.1 in the Negative.
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60. Point No.2: In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (1) of Cr.P.C., the accused is hereby acquitted for the offence punishable u/Sec.138 of N.I. Act.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 4th day of January, 2017) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bengaluru. ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. B. Ramu
Witnesses examined on behalf of the Accused:
D.W.1 Mr. P. Vijayakumar
D.W.2 Mr. K.N. Ramachandramurthy
Documents marked on behalf of the Complainant:
Ex.P.1 & Ex.P2 Cheques
Ex.P.1(a) & Ex.P2(a) Signature of the Accused
Ex.P.3 Bank endorsement
Ex.P.4 Copy of Legal Notice
Ex.P.4(a) & Ex.P4(b) RPAD Receipts
Ex.P.5 Postal Acknowledgement Due Card
Ex.P.6 Unserved postal cover
Ex.P7 Photograph
Ex.P8 Revised calculation of the building construction
Documents marked on behalf of the Accused:
Ex.D1 & Ex.D2 Receipts
Ex.D3 Letter written to the bank
Ex.D4 Letter issued by the bank
XIX ACMM, B'lore.
32 CC No.9158/2014