Bangalore District Court
M/S Ninth Avenue Industries vs Persons: M/S Odm Media Service India on 14 September, 2018
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this the 14th day of September , 2018.
Present: Smt Shirin Javeed Ansari, BA LL.B(Hon's)LL.M
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No. 21902/2012
Complainant: M/s NINTH AVENUE INDUSTRIES
PRIVATE LTD
No.33, Hospital Road,
Bangalore-560 053.
Rep by its GPA holder Mr.Karigowda
( By Sri.M.Purushotham - Advocate )
- Vs -
Accused persons: M/s ODM MEDIA SERVICE INDIA
PRIVATE LTD
NO.705, BARTON CENTRE,
M.G.Road, Bangalore
Represented by its Authorised
Signatories.
1.Mr.Pawan Somappa,
2.Mr.Arun Kumar
( By Sri.Vipin Kumar Jain-Advocate )
Offence complained of: U/s. 138 of Negotiable Instruments
Act.
Plea of accused persons: Pleaded not guilty.
Final Order: Accused are Acquitted.
Date of judgment: 14.09.2018.
JUDGMENT UNDER SEC.355 OF CR.PC
The complainant filed this complaint under Sec.200
Cr.P.C. against the accused for the offence punishable
2 C.C.No.21902/2012
under Sec.138 Negotiable Instruments Act ( (herein after
called the act for reference)
2. The case of the prosecution is as under :
The complainant submits that the complainant is
carrying business Flex and Vynl Goods in the address
mentioned in the cause title and thus supplying the same
to its various customers on cash and credit basis. It is
further submitted by the complainant that the accused is
also one of the customers of the complainant who
approached for supply of Flex and Vynl goods and
purchased the goods from the complainant on credit basis
under various invoices. Towards the said purchase the
accused is still due Rs.4,00,612/- towards the balance
principle amount. The accused was required to pay the
credit amount within 30 days from the date of invoices,
failing which he is liable to pay interest at the rate of 24%
per annum as per Trade, usages and customs of the
business and also as agreed upon by the accused with the
complainant for delayed payments.
3. It is further submitted by the complainant that in
order to discharge the liabilities towards the balance
amount and towards the above said principal and interest
amount finally the accused issued a cheque bearing
3 C.C.No.21902/2012
No.001227 dated 31/5/2012 for Rs.50,000/- drawn on
City Union Bank Ltd., Viajaynagar Branch, Bangalore.
4. The complainant further submitted that on the
date of issuing the cheque the accused represented to the
complainant that there is sufficient funds in his bank
account and his banker will honour the same if the
complainant present the same for its encashment. The
complainant believing the representations made by the
accused presented the said cheque with its banker for
encashment. The complainant further submits that to the
shock and surprise the cheque was returned from the
Bank with an endorsement "Funds Insufficient" on
1/6/2012. Immediately, after the dishonour of the cheque
the same was intimated to the accused. But the accused
did not make any payment towards the return cheque
amount. Hence, legal notice has been issued to the
accused on 21/6/2012 calling upon the accused to make
the payments in respect of the above dishonoured cheque
amount within 15 days from the date of receipt of the legal
notice. The said legal notice was sent to the accused
through the Registered Post Acknowledgment Due. The
accused has received the legal notice sent through RPAD
on 23/6/2012. The accused person who has received the
4 C.C.No.21902/2012
legal notice has not replied to the said notice and failed to
make payment towards the cheque amount. Hence, the
accused has committed the offence punishable under
section 138 of Negotiable Instrument Act and liable to be
convicted. Hence, the complainant prays for conviction of
the accused and award compensation in favour of the
complainant under section 357 of Cr.P.C r/w section 117
of Negotiable Instrument Act.
5. In pursuance of the process issued, the accused
person appeared before the court on and is on bail.
6. Copy of the prosecution papers are furnished to
the accused person as required under law.
7. Plea under Sec.138 N.I.Act is framed , read over
and explained to the accused person in vernacular. The
accused person pleaded not guilty and claimed the trial.
8. PW1- got examined and got marked the
documents at Ex.P.1 to Ex.P.60 for the complainant .
9 . The incriminating circumstances found in the
case of prosecution against the accused is read over and
explained to them in vernacular. The accused persons
denied the same. No oral or documentary evidence placed
on behalf of the accused .
5 C.C.No.21902/2012
10. Heard arguments and perused the material on
record.
11. On the basis of the contents of the complaint
the following points arise for my consideration. :
1. Whether the complainant proves
beyond reasonable doubt that
the accused is/are guilty of alleged
offence?
2. What order ?
12. My findings to the above points
are as follows"
Point No.1 :In the Negative.
Point.No.2 :As per final order for
the following:
REASONS
13.Point No.1 The complainant submits that the
complainant is carrying business Flex and Vynl Goods in
the address mentioned in the cause title and thus
supplying the same to its various customers on cash and
credit basis. It is further submitted by the complainant
that the accused is also one of the customers of the
complainant who approached for supply of Flex and Vynl
goods and purchased the goods from the complainant on
credit basis under various invoices. Towards the said
6 C.C.No.21902/2012
purchase the accused is still due Rs.4,00,612/- towards
the balance principle amount. The accused was required
to pay the credit amount within 30 days from the date of
invoices, failing which he is liable to pay interest at the rate
of 24% per annum as per Trade, usages and customs of
the business and also as agreed upon by the accused with
the complainant for delayed payments.
14. It is further submitted by the complainant that in
order to discharge the liabilities towards the balance
amount and towards the above said principal and interest
amount finally the accused issued a cheque bearing
No.001227 dated 31/5/2012 for Rs.50,000/- drawn on
City Union Bank Ltd., Viajaynagar Branch, Bangalore.
15. The complainant further submitted that on the
date of issuing the cheque the accused represented to the
complainant that there is sufficient funds in his bank
account and his banker will honour the same if the
complainant present the same for its encashment. The
complainant believing the representations made by the
accused presented the said cheque with its banker for
encashment. The complainant further submits that to the
shock and surprise the cheque was returned from the
Bank with an endorsement "Funds Insufficient" on
7 C.C.No.21902/2012
1/6/2012. Immediately, after the dishonour of the cheque
the same was intimated to the accused. But the accused
did not make any payment towards the return cheque
amount. Hence, legal notice has been issued to the
accused on 21/6/2012 calling upon the accused to make
the payments in respect of the above dishonoured cheque
amount within 15 days from the date of receipt of the legal
notice. The said legal notice was sent to the accused
through the Registered Post Acknowledgment Due. The
accused has received the legal notice sent through RPAD
on 23/6/2012. The accused person who has received the
legal notice has not replied to the said notice and failed to
make payment towards the cheque amount. Hence, the
accused has committed the offence punishable under
section 138 of Negotiable Instrument Act and liable to be
convicted.
16. The complainant in order prove his case has
produced Ex.P.1 to 60 . Ex.P.1 is the Certified copy of the
General Power of Attorney, Ex.P.2 is the cheque in question
dt.31.5.2012.bearing No.001227 for Rs.50000/- Ex.P3 is
the cheque return memo dated 1.6..2012. Ex.P.4 is the
legal notice. Ex.P.5 is the postal acknowledgement. Ex.P6
is the ledger account extract. Ex.P.7 to Ex.P.26 are the tax
8 C.C.No.21902/2012
invoices. Ex.P.27 to Ex.P.47 are the delivery challans.
Ex.P.48 to Ex.P.60 are the tax invoices.
17. On careful perusal of the entire oral evidence of
Pw 1 it is found that in all Pw 1 has produced 60
documents before this court. Ex.P.7 to Ex.P.60 are the
tax invoices and delivery challans respectively. On perusal
of the entire tax invoices and delivery challans, it is found
that nothing is clear as to who signed the said delivery
challans and the tax invoices on behalf of the accused
company. Though PW 1 states in his cross examination
that the employee of the accused company signed on behalf
of the accused company, but, there is no endorsement to
that effect in the said tax invoices or the delivery challans
as stated supra. Mere stating that an employee of the
accused company has signed the delivery challans on
behalf of the accused is not sufficient. The complainant
has to prove this aspect of the matter . Though PW 1
states that a person by name Pankaj who is an employee
of the complainant company, had been to deliver the
goods to the accused company, but, Pw 1 himself admits
in his cross examination that before filing his examination
in chief affidavit , Pw 1 has not enquired said Pankaj
regarding the above said matter. Neither said Pankaj was
9 C.C.No.21902/2012
enquired with nor he has been examined before this court
by the complainant . Under these circumstances, it is
crystal clear that the evidence of Pw 1 is only a hear say
evidence and Pw 1 does not have any personal information
regarding the facts of the case.
18. Admittedly the invoices produced by the
complainant are the computer generated copies. As
stated by PW 1 himself one Mr.Veerendar Singh the then
Accountant used to maintain and feed the data in the
computers. But, no such person has been examined by
the complainant before this court. As admitted by PW 1
himself all the invoices got marked by them are not
annexed with due certificate as required under the law
pertaining to the computer generated copies.
19. Admittedly the complainant has not produced
the dispatch challan delivery bearing DC3 shown by them
in the tax invoice and the delivery challans. As admitted
by PW 1 himself in his cross examination dt.19.5.2016
they have not produced DC Number of the invoices
produced before this court. Some of the tax invoices are
not at all signed by anyone. Absolutely some of the invoices
does not bear the signature of either the accused or any
other person on behalf of the accused. It is the bounden
10 C.C.No.21902/2012
duty of the complainant to produce the appropriate
documents before the court in compliance with the
necessary provisions of law by filing necessary certificate .
But , no such effort has been made by the complainant
in this case. The invoices produced by the complainant
does not find any nexus with the delivery challans
produced by the complainant . Admittedly, the invoices
are the computer generated copies which lack
certification by the complainant as per law. Therefore,
under these circumstances, the said copies of the tax
invoices and the delivery challans in absence of any
certification cannot be given evidential value. The
complainant has failed to prove his case beyond
reasonable doubt and also failed to make out the nexus
between the invoices and the delivery challans. No any
person or the employee of the complainant company, who
had the first hand information about the alleged delivery
of the goods to the accused company has been examined
by the complainant. Nowhere in the complaint it is stated
by the complainant that Pw 1 has got personal knowledge
about the transaction. In the absence of such pleadings,
it is difficult to rely upon the evidence lead by Pw 1.
11 C.C.No.21902/2012
20. No doubt, the complainant has produced the
account statement. But, the same also cannot be relied
upon in absence of any certification as required under law.
When the accused himself has denied the receipt of goods,
it becomes the bounden duty of the complainant to prove
the supply of the goods first. Mere producing the
documents without proving the said documents is not
sufficient. The complainant has utterly failed to show that
he has supplied the goods to the accused person . The
complainant has also failed to prove his case beyond
reasonable doubt. Therefore, no presumption can be made
available in favour of the complainant . Therefore, under
these circumstances of the case, it cannot be said that
the cheque was issued by the accused towards the
discharge of any debt or liability . The case of the
complainant is surrounded by suspicion. The complainant
has not made any efforts to remove those suspicion from
the mind of the court. Accordingly, I answer point NO.1
in the Negative.
21. Point No.2: In view of the reasons stated and
discussed above, the complainant has miserably failed to
prove the guilt of the accused for the offence punishable
under Sec.138 Negotiable Instruments Act .
12 C.C.No.21902/2012
Hence, I proceed to pass the following :
ORDER
Exercising the powers conferred upon this court u/s.255(1) Cr.P.C., the accused are hereby Acquitted of the offence punishable under Sec.138 Negotiable Instrument Act. The bail bond of the accused and that of the sureties if any stand cancelled.
(Dictated to the Stenographer directly on the computer, typed by her , corrected and signed then pronounced by me in the open court on this the 14th day of September , 2018).
(SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Mr.Karigowda
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : General Power of Attorney Ex.P.2 : Cheque Ex.P.3 : Bank memo Ex.P.4 : Legal notice Ex.P.5 : Postal Acknowledgment Ex.P.6 : Ledger Account Ex.P.7 : Tax Invoice Ex.P.8 to 26 : Tax inovices 13 C.C.No.21902/2012 Ex.P.27 to 46 : Delivery Challans. Ex.P.47 to 56 : Tax Invoices. Ex.P.57 &58 : Delivery Challans. Ex.P.59 : Purchase order Ex.P60 : Delivery Challan.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:- -
-Nil-
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED
-Nil-
( SHIRIN JAVEED ANSARI ) XXV A.C.M.M.,BANGALORE.
14 C.C.No.21902/2012 15 C.C.No.21902/2012