Bangalore District Court
M/S Sree Gokulam Chits & Finance vs Sri.K.Srinath on 5 October, 2015
THE COURT OF THE V ADDL. SMALL CAUSES
JUDGE & 24th ADDL. CHIEF METROPOLITAN
MAGISTRATE
Court of Small Causes, Mayo Hall Unit, Bangalore
(SCCH-20)
Dated this the 05th day of October, 2015
Present: Smt.K.BHAGYA,
B.Com., LL.B.
V Addl. Small Causes Judge & XXIV
A.C.M.M., Bangalore.
C.C.No.31823/2006
Judgment U/s 355 of Cr.P.C
Complainant : M/s Sree Gokulam Chits & Finance
Co. (P) Ltd.,
No.2894, 12th Main Road,
HAL 2nd Stage, Indira Nagar,
Bangalore - 560 008.
Represented by its Accounts Asst.
& Authorization Holder: Sri.Rajesh
Kumar.S, S/o K.P.Sridharan Nair,
Aged about 32 years.
(By Pleader Sri.H.M.Raveesh)
V/s
(SCH-20) 2 CC 31823/06
Accused : Sri.K.Srinath,
Manager,
M/s Indoors,
# 616, Ring Road,
BSK 3rd Stage,
Bangalore-560 085.
(By Pleader Sri.P.R.Muralidhar)
The offence complained
of or proved : U/s 138 of Negotiable
Instruments Act.
Plea of accused &
his examination : Pleaded not guilty
Final order : Acting U/sec 255 (1) of
Cr.P.C. accused is acquitted
Date of such order : 05-10-2015
* * * * *
J U D G M E N T
The complainant by name M/s Sree Gokulam Chits & Finance Co., (P) Ltd., has filed this complaint against the accused by name Mr.K.Srinath, for the (SCH-20) 3 CC 31823/06 offence punishable U/Sec 138 of N.I. Act as amended by Act of 65/88 r/w Sec.200 of Cr.P.C.
02. It is the case of the complainant that:-
The complainant is doing chit fund business.
One K.R.Nagendra Prasad and the accused joined chit group bearing No.G3H-15 in the name of M/s Indoors, runned by complainant for a sum of Rs.5,00,000-00, ticket No.25 was allotted to them.
After bidding the chit, both of them committed default in paying the chit amount. Hence complainant requested them for repayment of the chit amount due. The accused came to complainant's office and after verification of the accounts, on 28-01-2006 he had issued cheque bearing No.004748 dt:28-01-2006 drawn on HDFC Bank Ltd., CMH Road, Indiranagar 1st Stage, Bangalore-
38, for a sum of Rs.1,96,065-00 and assured that cheque will be honoured on its presentation. When the complainant presented the said cheque for encashment on 06-07-2006 through its banker i.e., UTI Bank Ltd., Cox Town, Bangalore-5 and the same was bounced with an endorsement as "Account (SCH-20) 4 CC 31823/06 Closed" on 07-07-2006. Then the complainant got issued a legal notice on 21-07-2006 to the accused by RPAD as well as UCP. The accused received the legal notice sent by UCP, but managed to return back the RPAD notice with postal shara as "Not Claimed" on 30-07-2006. Even after receipt of notice, the accused failed to pay the cheque amount. So, the complainant is before this Court with this complaint.
03. After registration of complaint, summons has been issued to the accused. After the issuance of summons, the accused has appeared before the Court through his counsel and enlarged on bail. Thereafterwards, this Court has recorded the plea of the accused. As the accused pleaded not guilty and claimed to be tried, the case was posted for complainant's evidence.
04. The advocate for accused has relied upon the following decisions:-
01. ILR 2010 KAR 3529 (Sri.Haridas Naik and others Vs Hanchinamane Gadriyappa and others) (SCH-20) 5 CC 31823/06
02. 2008 (1) KCCR 354 (KAR) (Sri.K.Venkataramaiah and others Vs Sri.Katterao)
03. 2004 CRI.L.J. 4874 (Supreme Court) (Adalat Prasad Vs Rooplal Jindal and others)
04. 2011(1) DCR 645 (M/s Sree Gokulam Chit & Finance Company Vs Gurudas)
05. 2015 AIR SCW 1125 (A.C.Narayanan Vs State of Maharashtra and another)
06. 2012(3) AIR KAR R 109 (SC) (Aneeta Hada Vs M/s Godfather Travels & Tours Pvt. Ltd.,)
07. III (2005) BC 391 (SC) (Monaben Ketanbhai Shah and another Vs State of Gujarat and others)
08. 2014 AIR SCW 2158 (John K.Abraham Vs Simon C.Abraham and another)
09. 2015(2) AIR 483 (M/s Shriram Transport Finance Co. Ltd., Vs Smt.Akhilabanu)
10. 2014 AIR SCW 1877 (Mannalal Chamaria and another Vs State of West Bengal and another)
11. 2013(2) AKR 725 (M/s Shriram Chits (K) Private Ltd., Vs Additional Registrar of Co-operative Societies & others)
12. 2003(1) DCR 146 (C.Antony Vs K.G.Raghavan Nair)
13. IV (2007) BC 586 (SC) (K.Prakashan Vs P.K.Surenderan) (SCH-20) 6 CC 31823/06
14. 2007 (1) Crimes 340 (B.Raman and others Vs Shasun Chemicals and Drugs Ltd., Chennai)
15. 2005(3) KCCR 1576 (Deviprasad Rai Vs A.M.Ganesh Rai)
16. 2009(3) KAR.L.J. 253 (Govind Ram Chanani Vs Latha and another)
17. ILR 2013 KAR 4435 (Abdul Basheer and another Vs The State of Karnataka, rep., by its Chief Secretary and others)
18. 1(2008) BC 244 (SC) (K.Srikanth Singh Vs North East Securities Ltd., and another)
19. AIR 2006 SC 3366 (M.S.Narayana Menon alias Mani Vs State of Kerala and another)
20. 2013(1) AKR 317 (B.L.Boolani Vs Vasanth Kumar Bangera)
21. 2003 AIR KANT. HCR 2873 (K.R.Indira Vs Dr.G.Adinarayana)
22. 2007(3) AIR KAR R 403 (Raghu Lakshminarayanan Vs M/s Fine Tubes)
23. II (2007) BC 210 (SC) (Sabitha Ramamurthy and another Vs R.B.S.Channabasavaradhya)
24. III (2009) BC 659 (SC) (Thomas Vs Jaleel)
25. 2008 AIR SCW 738 (Krishna Janardhan Bhat Vs Dattatraya G. Hegde)
26. IV (2009) BC 147 (H.R.Nagarathna Vs Jayashree Prasad) (SCH-20) 7 CC 31823/06
27. IV (2009) BC 341 (Jagannath Natha Tamahane Vs Sai Construction and another)
28. IV (2007) BC 14 (Chacko Vs Kurian)
29. IV (2009) BC 332 (Jasoti Kishanchand Nathani Vs State of Maharashtra and another)
30. 1999 (2) KAR.L.J. 490 (N.T.Vijayakumar and others Vs The Allahabad Bank, Nehru Road Branch, Shimoga)
31. 2004(1) DCR 657 (MAD) (Sulochana and others Vs M.Kulasekaran)
32. ILR 2010 KAR 3480 (M.T.Siddashetty and another Vs P.H.Gowda and another)
33. IV (2007) BC 659 (SC) (John K.John Vs Tom Varghese and another)
34. IV (2008) BC 657 (Om Shakthi S/C & S/T and Minority Credit Co-operative Society Limited Vs M.Venkatesh)
35. (1) 2008 BC 92 (Ranjitha Balasubramanian and another Vs Shanthi Group and others)
36. 2011(2) KLJ 523 (C.Akbar Basha Vs Smt.Shakunthala Gupta and others)
37. 2010(4) KCCR 2765 (M.T.Siddashetty and another Vs P.H.Gowda and another)
38. AIR 1967 SC 1058 (Chandradhar Goswami and others Vs Gauhati Bank Ltd.,)
05. In order to prove the case of the complainant, the Legal Clerk and GPA holder of the complainant (SCH-20) 8 CC 31823/06 company got examined as P.W.1 and 12 (Ex.P.12 got marked through D.W.1) documents got marked on its behalf. He has been fully cross-examined by the advocate for the accused. Then this Court has recorded the accused statement U/sec 313 of Cr.PC. As the accused submitted that, he would adduce his defence evidence, then the case was posted for defence evidence. Then the accused himself got examined as D.W.1, but he has not produced any documents. He was thoroughly cross-examined by the advocate for the complainant. Then the case was posted for arguments.
06. Heard the arguments of both side. The written arguments filed by the counsel for accused is taken into consideration. Now the case is for pronouncement of Judgment.
07. Now the points that arise for my consideration are as follows:
1. Whether the complainant proved that, the accused has committed an offence punishable under section 138 of N.I. Act?(SCH-20) 9 CC 31823/06
2. What Order?
08. My answers to above points are as follows:
Point No.1 : In the negative
Point No.2 : As per the final order
for the following:
REASONS
09. Point No.1:- As already observed above, the complainant by name M/s Sree Gokulam Chits & Finance Co. (P) Ltd., has filed this complaint against the accused by name Sri.K.Srinath, the Manager of M/s Indoors, for the offence punishable U/Sec 138 of N.I. Act.
10. Here, it is the case of the complainant that, one K.R.Nagendra Prasad and this accused joined chit group bearing No.G3H-15 in the name of M/s Indoors, for a sum of Rs.5,00,000-00. After bidding the chit amount, the said K.R.Nagendra Prasad and accused committed default in payment. Hence, atlast, the accused towards the payment of the amount due to the complainant company, issued (SCH-20) 10 CC 31823/06 the present cheque in question for a sum of Rs.1,96,065-00 drawn on HDFC Bank Ltd., CMH Road, Indiranagar 1st Stage, Bangalore and when it was presented for encashment through the complainant's banker, it was dishonoured with an endorsement as "Account Closed" on 07-07-2006. Thereafterwards, the complainant got issued a legal notice, calling upon the accused to pay the cheque amount, but he has not paid the cheque amount nor replied to the notice issued by the complainant. Hence, this complainant is before this Court with this complaint.
11. Here, the complainant is M/s Sree Gokulam Chits & Finance Co. (P) Ltd., represented by its Accounts Assistant and Authorization holder Sri.Rajesh Kumar.S. This complaint was filed before this Court on 23-08-2006 by the said representative Sri.Rajesh Kumar.S. This Court has recorded the sworn statement of the said Rajesh Kumar.S. only.
12. During the proceedings of the present case, a substitution application was also filed by the (SCH-20) 11 CC 31823/06 advocate for the complainant, which was allowed by this Court. Thereafterwards, the proceedings of the present case was conducted by one Siddaraju S/o Nagaraj, who is the Legal Clerk and General Power of Attorney holder of the complainant. He has been got examined as P.W.1 before this Court. He has filed his affidavit in lieu of his chief examination, in which he has reiterated all the averments made in the complaint itself. Further, he has also produced as many as 12 documents. Among them, Ex.P.1 is the notarized copy of General Power of Attorney executed by the Managing Director of the complainant company by name A.M.Gopalan in favour of this P.W.1-Siddaraju. Ex.P.2 is the original Cheque alleged to be issued by the accused and the signature identified by the complainant as that of the accused is got marked as Ex.P.2(a). Ex.P.3 is the Bank endorsement given by the HDFC Bank as, "Account Closed", Ex.P.4 is the Office copy of the Legal notice issued by the advocate of the complainant to the accused dt:21-07-2006 calling upon him to pay the cheque amount. Ex.P.5 is the (SCH-20) 12 CC 31823/06 UCP receipt, Ex.P.6 is the RPAD receipt, Ex.P.7 is the registered postal cover through which the notice has been sent to the accused which was returned as, "Not claimed", Ex.P.7(a) is the notice within the cover Ex.P.7. Ex.P.8 is the Application form for registration, Ex.P.8(a) is the Signature of K.R.Nagendra Prasad identified by P.W.1, Ex.P.9 is the Surety & Security Proposal Form No.1 of the complainant's company, Ex.P.9(a) is the Signature of the accused identified by the P.W.1, Ex.P.10 is the copy of the Ledger account extract from 19-07-2002 to 19-07-2004 maintained by complainant company alleged to be of the accused, Ex.P.11 is the computerized copy of the Ledger account extract from 19-07-2002 to 19-07-2004 maintained by complainant company of the accused and Ex.P.12 is the signature of the accused on his Vakalath. These are all the documents on which the complainant has relied upon.
13. Here, the accused has appeared before the Court. He has denied the whole transaction itself. It is the defence of the accused that, this (SCH-20) 13 CC 31823/06 complaint is not all maintainable before this Court. The authorized person has not been got examined before this Court on behalf of the complainant. Hence, the complaint has to be dismissed. It is also the defence of the accused that, he had not at all issued any cheque in favour of the complainant company. The signature found on Ex.P.2 is not that of him. He is in no way connected with "M/s Indoors". He never bidded any amount from the chit of the complainant company. It is also his defence that, he had no account in HDFC Bank of Indiranagar 1st Stage. Thus, the accused prayed to dismiss the complaint filed by the complainant.
14. Here, the main argument of the learned counsel for the accused is that, this complaint is not at all maintainable before this Court, because an authorized person has not been got examined before the Court, but a Legal Clerk of the complainant company got examined as P.W.1. That is impermissible in law. Moreover, this Court cannot rely upon the notarized copy of the General Power of Attorney which has been got marked as Ex.P.1 (SCH-20) 14 CC 31823/06 before this Court. In this regard he has relied upon the decision reported in AIR 2014 SC 630, (A.C.Narayanan Vs State of Maharashtra and another), in which it is held as under:-
"(B) N.I. Act (26 of 1881), S.138
- Dishonour of cheque - Complaint -
Allegedly filed by employee of company claiming to be General Power of Attorney of complainant company - Complaint was not signed either by Managing Director or Director of Company - Subsequently ' R ' Deputy General Manager of Company gave evidence on behalf of company though he does not know anything - Nothing on record to suggest that he was authorized by Managing Director or any Director -
Acquittal of accused, held in facts, was proper".
In the same way, he has relied upon the another decision reported in 2015 AIR SCW 1125 (A.C.Narayanan Vs State of Maharashtra and another), in which it is held as under:-
"(A) N.I. Act (26 of 1881), S.138
- Dishonour of cheque - Complaint -
Allegedly filed by power of attorney holder - Except mentioning in cause (SCH-20) 15 CC 31823/06 title no mention of, or reference to Power of Attorney in body of said complaint - Nor was it exhibited as part of said complaint - In list of evidence there is just mere mention of "Power of Attorney" without date or any other particulars - No whisper in verification statement about filing of complaint as Power of Attorney holder - Order issuing process by Magistrate did not mention perusal of power of attorney - In facts taking cognizance by Magistrate, held not proper - Further putting onus on accused rather than complainant was also not proper".
15. By relying upon the above decisions, the learned counsel for the accused vehemently argued that, this complaint has to be dismissed in view of the above cited decisions. Here, the complaint was lodged by one Rajesh Kumar.S only. At that time, he has produced the true copy of extract from the Minutes of the proceedings of the Board of Directors Meeting held on 04-02-2006. It is signed by the Executive Director of the said company. It is mentioned in this document that, the said Rajesh (SCH-20) 16 CC 31823/06 Kumar.S. has been authorized to institute, commence, prosecute, carry on or defend any suit or legal proceeding etc.,. Later at the time of evidence, one Mr.Siddaraju who is the Legal Clerk of the complainant company got examined as P.W.1. He has produced the notarized copy of the General Power of Attorney executed by the Managing Director Mr.A.M.Gopalan. Ofcourse, it is signed by the Managing Director. But it reveal that, this person can appear for and represent the concern in all Courts, Civil, Criminal including before Magistrate Courts for prosecuting U/Sec 138 of N.I. Act. Thus, the earlier document i.e., the extract from the Minutes of the proceedings of the Board of Directors Meeting as well as this General Power of Attorney are signed by the Executive Director and also Managing Director respectively. They had authorized these persons to prosecute all the cases of the complainant company comes U/Sec 138 of N.I. Act. In view of the above cited decisions, the General Power of Attorney is signed (SCH-20) 17 CC 31823/06 by the Managing Director of the complainant company.
16. Here, this complainant has filed this complaint against one Mr.K.Srinath, Manager of M/s Indoors. In the complaint it is averred as, "one K.R.Nagendra Prasad and the accused joined chit group bearing No.G3H-15 in the name of M/s Indoors, runned by complainant for a sum of Rs.5,00,000-00, ticket No.25 was allotted to them. After bidding the chit, said K.R.Nagendra Prasad and the accused committed default in paying the chit amount in respect of the above said chit group. Hence, the complainant requested them for repayment of the chit amount due. The accused came to complainant's office and after verification of the accounts, on 28-01-2006, issued cheque towards the aforesaid chit group". This much is averred in the complaint. Here, as already observed above, it is the definite defence of the accused that, he is in no way concern with "M/s Indoors". He has not at all issued any cheque and the signature found on Ex.P.2 (SCH-20) 18 CC 31823/06 is not that of him. This is the defence of the accused. In this regard this Court has gone through all the documents and also the complaint. In the cause title of this complaint, the designation of this accused is mentioned as "Manager, M/s Indoors". The complainant also produced Application form for registration, which is marked at Ex.P.8. It reveal the name of the applicant as "Indoors". This document do not reveal the details of the Partner/Director. It is signed by one authorized signatory for Indoors. This document do not reveal the signature of this accused. The complainant also produced Surety and Security Proposal Form No.1, which is marked at Ex.P.9. This document reveal the Prized Bidder name as "M/s Indoors, K.R.Nagendra Prasad, Partner (Managing)......". In the column of Surety I, it reveal the particulars as "K.Srinath, Manager......". At the end, this is signed by the authorized signatory for Indoors and also signed by surety by name K.Srinath. On the 2nd page of this document the particular of surety No.2 is mentioned as "Lakshmi Nagendra". Otherthan (SCH-20) 19 CC 31823/06 this name, there is no other particular regarding this surety No.2. This page No.2 is not even signed by the surety No.2 also. Only the name has been mentioned.
17. Here, it is very important to note that, this complaint is filed against the K.Srinath, Manager, M/s Indoors. But the document produced by the complainant itself i.e., Surety Proposal Form reveal the prized bidder name as K.R.Nagendra Prasad, Partner (Managing), surety No.1 as K.Srinath, Manager. But in the complaint there is no mentioning regarding the company "M/s Indoors". It is just mentioned that, one K.R.Nagendra Prasad and accused joined the chit group. There is no mentioning of the designation of the said K.R.Nagendra Prasad in this said Indoors eventhough some particulars are mentioned in Ex.P.9 i.e., the Surety Proposal Form No.1. Here, this Court has gone through Ex.P.2 i.e., the original Cheque alleged to be issued by the accused. When this Court has gone through the contents of this Ex.P.2 i.e., the original Cheque, i.e., K.Srinath signed (SCH-20) 20 CC 31823/06 as a authorized signatory, for Indoors. It is also signed by another authorized signatory. The said signature is similar to the signature found on Ex.P.8 i.e., Application form for registration. Though, this cheque is signed by two persons, only this K.Srinath has been made as accused in this complaint. Here, in this complaint it is not at all mentioned whether M/s Indoors is a private company or a public company or a partnership firm. If at all it was a private or public company, all the Directors would have been made as a parties i.e., accused in the present complaint. If at all it was a partnership firm, all the Partners would have been made as accused in this complaint. Without mentioning the status of M/s Indoors, this accused K.Srinath has been arrayed as accused, as a Manager of M/s Indoors. In this regard the learned counsel for the accused has relied upon the decision reported in 2012(3) AIR KAR R 109 (Aneeta Hada Vs M/s Godfather Travels & Tours Pvt. Ltd.,), in which it is held as under:-
"(C) N.I. Act (26 of 1881), Ss.141, 138 - Dishonour of (SCH-20) 21 CC 31823/06 cheque - Offence by company -
Directors/other officer of company cannot be prosecuted alone -
Arraigning company as accused is condition precedent for their prosecution".
18. But in the present complaint, the company has not been made as accused. In the same way the learned counsel for the accused also relied upon the another decision reported in III (2005) BC 391 (SC) (Monaben Ketanbhai Shah and another Vs State of Gujarat and others), in which it is held as under:-
"Dishonour of cheque: Offence by Company: Absence of averments in complaint against appellants except stating in title they are partners of firm: Filing of partnership deed later on is of no consequence for determining point in issue: Criminal liability fastened on those who at time of commission of offence, was incharge of and responsible to firm for conduct of business of firm:
These may be sleeping partners, ladies and others who may not know anything about business of firm:
Primary responsibility is on (SCH-20) 22 CC 31823/06 complainant to make necessary averments in complaint to make accused vicariously liable: Impugned Judgment of High Court set aside and order of Magistrate discharging appellants restored - N.I. Act, 1881 - Ss.138, 141".
In the present complaint also it is not mentioned whether M/s Indoors was a partnership firm. The partners of the said company have not been made as parties and also in the complaint it is not at all averred who is responsible for the conduct of the business of the firm at the time of commission of the offence. In the same way, the learned counsel for the accused has relied upon another decision reported in 2014 AIR SCW 1877 (Mannalal Chamaria and another Vs State of West Bengal and another), in which it is held as under:-
"N.I. Act (26 of 1881), Ss.138, 141 - Dishonour of cheque -
Offence by company - No specific allegations against appellants in a complaint that they were incharge of and responsible for conduct of business of company at relevant time - Complaint quashed".(SCH-20) 23 CC 31823/06
In view of the above cited decisions, as there is no mentioning of Directors or Partners or the responsible persons of the company, this complaint has to be dismissed.
19. Further, as already observed above, the employee i.e., the Legal Clerk of the complainant company got examined as P.W.1. He has been thoroughly cross-examined by the advocate for accused. In the cross-examination he has deposed in page No.12 as, "¸Àzj À ¥Á®ÄzÁgÀ ¸ÀA¸ÉÝAiÀÄÄ ¦AiÀiÁ𢠸ÀA¸ÉÝAiÀÄ°è ¸ÀzÀ¸ÀåvÀé PÉÆÃj Cfð ¸À°è¸ÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ PÉ®¸Àz° À è E¢ÝgÀ°®è. ¸ÀzÀj ¥Á®ÄzÁgÀ ¸ÀA¸ÉÝ gÀÆ.3,75,000-00 ºÀtzÀ ZÉPï£ÀÄß £ÀªÀÄä ¸ÀA¸ÉÝAiÀÄÄ PÀ¼ÀÄ»¹PÉÆqÀĪÀ PÁ®PÉÌ £Á£ÀÄ ¦AiÀiÁ𢠸ÀA¸ÉÝAiÀÄ°è PÉ®¸ÀzÀ°è E¢ÝgÀ°®è. ¸ÀzÀj ¥Á®ÄzÁgÀ ¸ÀA¸ÉÝAiÀÄ ¥ÀgÀªÁV PÉ.Cgï.£ÁUÉÃAzÀæ¥Àæ¸Ázï EªÀgÀÄ ¸ÀzÀj aÃnAiÀÄ£ÀÄß ©qï ªÀiÁqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ¦AiÀiÁ𢠸ÀA¸ÉÝAiÀÄ°è PÉ®¸ÀzÀ°è E¢ÝgÀ°®è. PÉ.²æãÁxï EªÀgÀÄ ¤¦-2gÀ ZÉPÀÌ£ÀÄß £ÀªÀÄä ¸ÀA¸ÉÝUÉ PÉÆnÖzÀÝgÉAzÀÄ ºÉüÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ¦AiÀiÁ𢠸ÀA¸ÉÝAiÀÄ°è PÉ®¸ÀzÀ°è E¢ÝgÀ°®è. ¤¦-2gÀ ZÉPÀÌ£ÀÄß £ÀUÀ¢ÃPÀj¸À®Ä ¨ÁåAQUÉ ¸À°¸è ÀĪÀ ¸ÀAzÀ¨ÀsðzÀ°è £Á£ÀÄ ¦AiÀiÁ𢠸ÀA¸ÉÝAiÀÄ°è PÉ®¸ÀzÀ°è E¢ÝgÀ°®è. ¸ÀzÀj ZÉPÀÄÌ CªÀiÁ£ÀåUÉÆAqÀÄ ¨ÁåAQ£À µÀgÁ §AzÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ¦AiÀiÁ𢠸ÀA¸ÉÝAiÀÄ°è (SCH-20) 24 CC 31823/06 PÉ®¸Àz° À è E¢ÝgÀ°®è. DgÉÆævÀ¤UÉ CªÀiÁ£ÀåUÉÆAqÀAvÀºÀ ¤¦-2gÀ ZÉQÌUÉ ¸ÀA§AzÀ¥ÀlÖAvÉ £ÉÆÃnøÀ£ÀÄß PÀ¼ÀÄ»¹PÉÆqÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ¦AiÀiÁ𢠸ÀA¸ÉÝAiÀÄ°è PÉ®¸ÀzÀ°è E¢ÝgÀ°®è". In this regard, the learned counsel for the accused has relied upon the decision reported in 2014 AIR SCW 2158, (John K.Abraham Vs Simon C.Abraham and another),in which it is held as under:-
"N.I. Act (26 of 1881), Ss.138, 118, 139 - Dishonour of cheque - Complainant alleging that accused borrowed a sum of Rs.1,50,000-00 from him and issued a cheque for said sum which was dishonoured - For drawing presumption Under S.118 r.w. S. 139 burden is heavily upon complainant - Complainant not sure as to who wrote cheque nor aware as to when and where existing transaction took place for which cheque was issued by accused
- Defects in evidence of complainant as noted by trial court brushed aside by High Court without assigning any valid reason - Conviction of accused therefore, not proper".(SCH-20) 25 CC 31823/06
Thus, this P.W.1 was not at all working in the complainant company when the Nagendra Prasad bid the chit amount and when the alleged cheque was issued by K.Srinath. Further, in the cross- examination at page No.18, this P.W.1 also deposed as, "¤¦-10gÀ zÁS¯ÉAiÀÄ°è DgÉÆæ ²æãÁxï ºÀt ¥ÁªÀw¹zÀ §UÉÎ £ÀªÀÄÆzÀÄ EzÉAiÉÄà CAzÀgÉ ¸ÁQëAiÀÄÄ £ÁªÀÅ ºÀtªÀ£ÀÄß DgÉÆæ PÉ.²æãÁxïUÉ ¥ÁªÀw¹®è, §zÀ°UÉ £ÁªÀÅ PÉ.Cgï.£ÁUÉÃAzÀæ¥Àæ¸ÁzïÀgÀªÀjUÉ ¥ÁªÀw¹gÀÄvÉÛÃªÉ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ". Though, he has deposed like above, the said Nagendra Prasad has not been made as accused in this complaint. Further, the learned counsel for the accused also relied upon the decision reported in 2013(2) KAR 725 (M/s Shriram Chits (K) Private Ltd., Vs Additional Registrar of Co- operative Societies & others), in which it is held as under:-
"Chit Funds Act (40 of 1982), Ss.4, 64 - Evidence Act (1 of 1872), S.114 - Conduct of chit fund business - Non-compliance of mandatory provisions of Act - Effect - For running chit, petitioner company did not obtain previous (SCH-20) 26 CC 31823/06 sanction of State Govt. nor was their chit registered in State in accordance with provisions of Act - Provisions of S.114 of Evidence Act would not apply - Court cannot and should not presume existence of facts connected with unauthorized chit fund - Contract being void cannot be enforced in law -
Consequently petitioner-company cannot seek any relief by filing dispute U/Sec 64 of Act".
In this regard, this P.W.1 has deposed in his cross- examination at page No.18 as, "UÉÆÃPÀÄ®A amï ¸ÀA¸ÉÝ ZÉ£ÉÊ£À°è £ÉÆÃAzÀtôAiÀiÁzÀ ¸ÀA¸ÉÝ CAzÀgÉ ¸Àj. ¸ÀzÀj ¸ÀA¸ÉÝ PÀ£ÁðlPÀzÀ°è £ÉÆÃAzÀtô DzÀ §UÉÎ zÁR¯ÉAiÀÄ£ÀÄß ºÁdgÀÄ¥Àr¹®è". Thus, the complainant has not at all produced any documentary evidence regarding its registration and it can conduct the chit business. The above decision reveal that, in the absence of any such documents, this Court should not presume the existence of facts connected with the chit fund business.
20. Further, as per Ex.P.9 i.e., the Surety Proposal Form, this K.Srinath mentioned as surety No.1. In (SCH-20) 27 CC 31823/06 this regard, the learned counsel for the accused has relied upon another decision reported in 2013(1) KCCR 414 (Sri Vinod Vs The Secretary, Jai Bhavani Mahila Co-operative Credit Society Ltd., Hindawadi, Belgaum), in which it is held as under:-
"N.I. Act, 1881, S.138 - Legally enforceable debt - Petitioner was a surety for the loan and had given a blank cheque to the Co-operative society - Award had been passed against petitioner - Held, the petitioner in this case cannot be proceeded against in the criminal side, since he is not the original borrower nor any liability exists against him as on the date of presentation of the cheque. The proceedings against him are misconceived and it is an abuse of process of law. Proceedings in so far as petitioner was concerned quashed".
In view of the above cited decision, definitely this complaint or proceedings against this accused not at all maintainable.
21. Here, the defence of the accused is that, he has not been served with any notice. But as already (SCH-20) 28 CC 31823/06 observed above, in the complaint, it is not mentioned whether it is a private company or a partnership firm. All the Directors or all the Partners or the responsible person for the day to day conduct of the business at the time of commission of the offence have not been made as accused. So, issuance of notice to this accused only is not at all sufficient.
22. Under the above said facts and circumstances, definitely this complaint itself is not at all maintainable before this Court. Thus, the complainant has failed to prove that, the accused has committed an offence punishable U/sec 138 of N.I. Act. Hence, I answered point No.1 in the negative.
23. Point No.2:- In view of my findings on Point No.1, I proceed to pass the following:
O R D E R The complaint filed by the complainant is hereby dismissed.(SCH-20) 29 CC 31823/06
The accused is acquitted U/Sec 255(1) of Cr.P.C for the offence punishable U/Sec 138 of N.I. Act.
The bail bonds of accused is hereby stands cancelled.
(Dictated to the Stenographer, transcribed by him, corrected by me and then pronounced in open court on this day of 05th October, 2015) (K.BHAGYA) V ASCJ & XXIV ACMM, Court of Small Causes, Mayo Hall Unit, Bangalore.
Annexures Witnesses examined for Complainant:
P.W.1 Siddaraju Documents marked for Complainant:
Ex.P.1 Copy of General Power of Attorney Ex.P.2 original Cheque (SCH-20) 30 CC 31823/06 Ex.P.2(a) Signature of the accused Ex.P.3 Bank endorsement Ex.P.4 Office copy of the Legal notice Ex.P.5 UCP receipt Ex.P.6 RPAD receipt Ex.P.7 Returned RPAD cover Ex.P.7(a) Legal notice of Ex.P.7 Ex.P.8 Application form for registration Ex.P.8(a) Signature of K.R.Nagendra Prasad Ex.P.9 Surety & Security Proposal Form No.1 Ex.P.9(a) Signature of the accused Ex.P.10 copy of the Ledger account extract from 19-07-2002 to 19-07-2004 Ex.P.11 Computerized copy of the Ledger account extract from 19-07-2002 to 19-07-2004 Ex.P.12 signature of the accused on the Vakalath Witnesses examined for defence:
D.W.1 K.Srinath
Documents marked for defence:
-Nil-
(K.BHAGYA)
V ASCJ & XXIV ACMM,
Court of Small Causes,
Mayo Hall Unit, Bangalore.