Bangalore District Court
M/S. Anchorage Shipping vs Persons: A1. M/S Zakini Biotech ... on 8 October, 2021
IN THE COURT OF XXXVIII ADDL.CHIEF METROPPOLITAN
MAGISTRATE, BENGALULRU
Present : Sri. P. Shivaraj,
B.Com. LL.B.
XXXVIII A.C.M.M Bengaluru
Dated this the 08th day of October2021
C.C.NO: 5158/2015
COMPLAINANT: M/s. Anchorage Shipping,
A Registered partnership firm having its
Registeredoffice atElamkulam,Kadavanthara PO,
Kochi682020,
Rep.by Manager/Authorised person,
Joe Joseph S/o K.V Joseph,
(By.Sri.M.K Lokesha Advocate)
//VS//
[
ACCUSED PERSONS: A1. M/s Zakini Biotech Pvt.Ltd.,
19, 1st floor, Ranoji Rao Road,
Basavanagudi, Bengaluru560004.,
Rep.by its Director,Mr. Harish S.N
A2. Mr. Harish.S.N
Director of M/s Zakini Biotech Pvt.Ltd.,
19, 1st Floor, Ranoji Rao Road,
Basavanagudi, Benglauru560004.
A3. Mrs. Savitha Harish,
Director of M/s Zakini Biotech Pvt.Ltd.,
19, 1st Floor, Ranoji Rao Road,
Basavanagudi, Benglauru560004
[By Sri. Sreevatsa and others Advocates]
Offence alleged: U/s/ 138 of N.I Act of 1881
Plea of the accused: Pleaded not guilty
Final Order: Accused no.2 &3 are Acquitted
Date of Judgment: 08102021
(P. SHIVARAJ)
XXXVIII A.C.M.M.
Bengaluru.
2 C.C.No.51582015
JUDGEMENT
The complainant is a partner ship firm, originally represented by its authorised person Mr. Ashly Antony, who filed the private complainant U/s 200 of Cr.P.C. alleging that, accused persons have committed the offence punishable under section 138 of Negotiable Instrument Act, 1881 ( For short N.I.Act,1881)
2.Brief facts alleged by the Complainant is set out below:
The Complainant is a register partnership firm, [herein after referred as complainant] accused no.1, is a Pvt. Ltd., company, A2 & 3 are the directors of A1, company [herein after referred as accused] and they are conducting the business for their company and they are responsible for the day to day affairs of the company.
Complainant alleged that, complainant firm is doing the business of Fright forwarding and customs clearness. Accused persons approached the complainant for handling their various air, shipments of their material to different destinations. Accused no.2 & 3 discussed with the authorised person of the complainant firm regarding various consignments and accordingly complainant had done various shipments for the accused persons. Further, as a part payment, towards the amount due on shipment with interest, administration,cheque return,and incidental charges, accused persons have issued cheque bearing 3 C.C.No.51582015 no.162106 dated 10.04.2013 for Rs.6,00,000/ which was drawn on State Bank of Mysuru.
3. As per the instructions of the accused, complainant presented the aforesaid cheque for encashment through its banker. The aforesaid cheque was returned dishonoured/unpaid, with an endorsement "Funds Insufficient" in the account of accused, to that effect complainant has received the cheque return memo from its banker on 29.04.2013. Complainant informed the aforesaid fact to the accused and he has issued legal notice to the accused on 16.05.2013 with a request and demand to repay the cheque amount. As per postal Shara the said notice was duly served to the accused on 20.05.2013. Accused has not chosen to give the reply nor he has paid the cheque amount. Complainant alleged that accused has intentionally not maintained the sufficient amount in his account to honor the cheque. In as much, accused has committed the offence punishable under section 138 of N.I.Act. On the aforesaid allegations, the complainant has approached this court and prays this court to punish the accused and to award the compensation.
4. As per the order sheet note,Originally the private complaint was filed before the Hon'ble CJM court, at Ernakulam. The learned presiding officer of that court, took the cognizance for the offence punishable U/s 138 of N.I.Act and recorded the sworn statement of the authorised person 4 C.C.No.51582015 of the complainant. On finding primafacie case, process was issued to the accused persons. Later, on 19.02.2015 case was reregister before XLIIACMM,
5. After service of the summons to the accused persons, they have appeared before XLII ACMM, court through their counsel, and they got released on bail. In compliance with provision of section of 207 of Cr.P.C. papers of the prosecution were supplied to the accused persons. As per the order sheet note dt. 26.08.2015, the substance of the accusation was stated to the accused persons before the XLIIACMM,, where in they pledged not guilty and submit before that court that they are having defense to make.
As per order dt.20.11.2015 case was transferred form XLIIACMM, court to XXV ACMM court.
6. In order to prove the guilty of the accused persons, the new authorized person of the complainant firm Mr. Joe Joseph S/o K.V. Joseph filed his examinationinchief affidavit and got marked 34 documents which are at Ex.P1 to 34 before the XXVACMM court.
7. As per the order sheet note dt. 15.02.2018 accused persons statements was recorded as per U/Sec.313 of Cr.P.C. and they have denied the same and submit that are having are having evidence to lead.
8. Accused no.3 orally examined her self as DW1 and she produced and marked 10 documents which is at Ex.D1 5 C.C.No.51582015 to 10. The oral evidence on record reveals that the parties have adopted the summons trial instead of summary trial.
Later as per special notification no. ADM/1/5/2020 dt.26.05.2020, case is transferred to this newly established court,
9. Counsel appearing for the accused persons filed the written arguments, with the permission of the court, I have heard the arguments from the learned counsel appearing for the complainant and perused the written arguments, authorities and materials available on record.
Counsel for the complainant has relied on the following authorities:
a) M/s. Kalamani TexVP.Balasubramanian reported in 2001 AIR Karnataka HCR 2154.(M/s Devi tiresVNavab Jan).
b) M/s. Kalamani TexVP.Balasubramanian reported in 2011 ACD1521 (KAR) (Smt. Usha sureshV Shasidharan)
c) M/s. Kalamani TexVP.Balasubramanian reported in 2010 S.C.1898. (RangappaVMohan).
d) M/s. Kalamani TexVP.Balasubramanian reported in 2011 ACD 1412(KAR) (N.HasainarV M.Hasainar)
e) M/s. Kalamani TexVP.Balasubramanian reported in ICL 2021(2) SC529.6 C.C.No.51582015
10. The following points that arise for my determination: :P O I N T S:
1. Whether the complainant proves beyond reasonable doubt that, the accused persons have committed the offence punishable U/s 138 of the N.I Act, as alleged in the Complaint?
2. What Order?
11. After carefully going through the materials available on record and taking into consideration of facts and circumstances of the case, my finding to the above points are as follows:
Point No.1: In the Negative.
Point No.2:As per final order, for the following:
REASONS
12. Point No.1: PW1 being the new authorised person and manager of the complaint firm, he reiterated the complaint averments in his Examinationinchief affidavit.
13. Complainant relied on the following documents. Ex.P1 is the minutes of the complainant firm, EX.P8 is th GPA executed by the partners in favour of PW1. The recitals of the aforesaid documents reveals that PW1 is appointed and authorised by the firm to represent and conduct the case on be half of the firm. Ex.P2 is the cheque issued by the accused persons towards the discharge of their liability 7 C.C.No.51582015 towards the complainant. Ex.P3 is the cheque return memo, Ex.P4 legal notice sent to the accused persons, Ex.P4 (a to
c) are the 3 postal receipts and Ex.P4 [d to f] are the 3 postal acknowledgments. Ex.P5 is the ledger of account of the accused company maintain by the complainant. Ex.P7 is the certified copy of acknowledgment for registration of their firm,and Ex.P9 to 32 are the copy of invoices, Ex.P33 is the letter written by accused to the complainant. Ex.P34 is the certified copy of unregistered agreement dated 02.01.2011.
14. Evidently, accused persons have admitted the issuance of cheque as per the Ex.P2 to the complainant and his signature on it, inasmuch, the initial statutory presumption attached to the cheque is required to be raised in favour of the complainant, as per sec.118(a) and U/sec.139 of the NI Act.
15. In the crossexamination of PW1, he deposed that, he has not tendered the partnership deed, partners have not executed the GPA to him and he has not signed to it. He admitted that he can't say, towards which pending bills, complainant secured the cheque form the accused and he cant not differentiate the interest,and other incidental charges. All the amount due from the accused are covered under eleven cheques secured by them. He denied the accused defense/ suggestion that, accused have paid the disputed cheque amount by RTGS on 13.012.2013. He admitted that the said payment is reflected only in the 8 C.C.No.51582015 accused persons bank account and further deposed that, he can answer the same after verifying their accounts. Further he denied the defense that,they have fabricated the GPA and the ledger account of the accused persons maintained by them. Further PW1, was cross examined at length, that is on the entry made in the ledger account of accused persons, maintained by PW1 and on the contents/terms and conditions of the unregistered agreement dt.02.01.2011
16. Accused no.2, in her oral examinationin chief, she fairly and clearly admitted the business transaction with the complainant and the issuance of disputed cheque along with other cheques bearing no.162106 to 162108 to the complainant. She deposed that, they use to pay the pending invoices amount to the complainant, by way of cheque and RTGS. Further she deposed that, in the year 2013 itself they have paid and cleared the amount of the aforesaid cheques, including the disputed cheque amount, by way of RTGS. She clarified that,the payment made towards the disputed cheque by way of RTGS is reflected in their bank account statement.
17. In the crossexamination, she repeatedly deposed that, they have already paid and cleared the disputed cheque amount to the complainant through RTGS. She denied the suggestion that, due to typographical error the cheque no.162108 is wrongly stated in Ex.D5 &10 instead of stating cheque no.162105. She admitted the dishonour of cheque and issuance of legal notice. She deposed that complainant 9 C.C.No.51582015 was receiving the payment by way of cash and RTGS. Many facts are suggested to her regarding the terms contained in the unregistered agreement.
18. On careful scrutiny of the entire oral evidence available on record, it is not in dispute that, PW1 is the manager of the complainant firm and he is the GPA holder, accused no.2 & 3 are the directors of A.1 company and they have participated in the affairs of their company. Further the service rendered by the complainant to accused persons and the transaction alleged by complainant is not dined. It is also admitted fact that both the parties were maintaining running account. In other words, complainant use to provide the service to accused persons and they were paying for the same by way of cheque and RTGS and the complainant claim is not based on specific pending invoices amount.
19. In the cross examination of PW1, he admit the defense/contention of the accused that, the payment of disputed cheque amount by way of RTGS is reflected in the accused bank account statement. The aforesaid fact corroborates with the bank entry effected to the accused bank account which is at Ex.D4, and it corroborates with the oral testimony of DW1. If the aforesaid fact is not true, complainant could have effortlessly tender his bank account statement to verify the corresponding entry in his bank account. Complainant has not tendered it, but he with hold it. Further in the letter dt.13.10.2012, sent by accused to 10 C.C.No.51582015 complainant, where, it includes the information regarding the disputed cheque no.162106 and it is intimated to the complainant that, PDC (pending due clearance) is issued in respect of the disputed cheque amount and other cheques as stated there in. Ex.D10 is the copy of letter dt.26.10.2012 sent by complainant, requesting the accused to make the payment by RTGS. Ex.D5 is the email copy dt.21.01.2013 sent by accused to complainant, intimating and confirming the clearance of payment of disputed cheque amount and other cheques amount stated therein. Ex.D4 is the bank account statement of the accused, wherein the transaction entry in between 05.01.2013 to 18.01.2013, shows that accused has made RTGS of Rs.6,00,000/ to the complainant firm.
20. On careful scrutiny of the sequence of the aforesaid undisputed documents, it is evident that, complainant was accepting the RTGS payment from accused persons. Further complainant him self insisted the accused to make the payment by way of RTGS. Accordingly accused cleared the payment of disputed cheque amount and other cheques amount, as stated in email, and intimated the clearance of the payment to the complainant as per Ex.D5 and the said payment are reflected in the bank account of accused person which is at Ex.D4. The aforesaid facts are occurred at an undisputed point of time, that is before presentation of the cheque on 10.04.2013. It establishes that 11 C.C.No.51582015 complainant has not returned the disputed cheque to accused persons even after receiving the payment from them.
21. The oral testimony of the DW1 corroborates with the aforesaid documents. If the correspondence made by the accused as per letter de.13.10.2012 and sequential facts as per Ex.D5,10,4 are false, complainant could have given the reply for the same and he could have disputed and denied the aforesaid documents. Further more there is not even a suggestion to DW1, in respect of the aforesaid facts and documents, nor they elicited any material thing to disprove the same, event though the complainant is having the prior knowledge of the aforesaid facts and documents.
22. In the cross examination of DW1, complainant has improved his version, by bare suggestion with out pleading to the effect that,due to typographical error, the cheque no.162108 is wrongly stated, as cheque no.162105 in Ex.D5 &10. The afore said fact is not pleaded nor stated in the notice and not whispered in the affidavit. No doubt the said fact is an after thought of the complainant and it is unsubstantiated and it weakened the version of the complainant. If at all if the accused had not paid the disputed cheque amount, complainant could have given reply to the Ex.D5 and insist for the payment from them, but he has not made such effort and it falsifies/crumbles the complainant version.
12 C.C.No.5158201523. There is no material on record to disbelieve the defense of the accused persons as per Ex.P5 &10 and up on considering the defense of the accused based on evidence,and material facts elicited from the mouth of PW1 as discussed above and it probabilise the contention/defense of the accused persons and it is deserve to be accepted. Accused persons have placed sufficient material to convince the court that their case is probabilised when it compare to the case of the complainant. The probabilities placed by the accused persons have the capacity to preponder over the case of the complainant, inasmuch accused persons have successfully rebut the presumption against them and they have successfully established the fact that they have paid the disputed cheque amount to the complainant and they have created the doubt about the existence of debt in the mind of the court, by bringing on record the probable evidence and by eliciting the material facts from the mouth of PW1 and up on considering the same, this court is of the opinion that, presumption is said to have been rebutted by the accused persons and they are able to show the existence of debt is improbable, doubtful and illegal.
24. When the the accused persons have established and improbabilised the existence of debt by putfrothing their probable defense and when they dislodge the initial statuary presumption against them, then the said presumption will not come to the rescue of the complainant and it is 13 C.C.No.51582015 incumbent on the complaint to bring on record, independent and positive proof of existence of debt. Complainant fails to comply the same and it fortifies the probable defense/contention of the accused persons and falsifies the complainant version. Apparently complainant failed to prove his case beyond reasonable doubt.
25. Coming to the written arguments submitted by the counsel appearing for accused, he contended that, complainant fabricated the GPA and PW1 has not signed it and he has not filed the complaint.
It is settled principle of law that, court can't insist a sloe person who filed the complaint has to complete the litigation. There is no bar to the complainant to proceed with the case, by appointing another authorised person to represent their case in the changed situations and circumstances. The documents that is Ex.P1&8 reveals that PW.1 was appointed and authorised by the partners of the complainant firm, to proceed with this proceedings, accordingly original complaint was amended and amended complaint was filed on 12.01.2015 and new authorised person has filed his Examinationinchief affidavit on 14.09.2015. Further the PW1, being the manager of the complainant firm, he was appointed and identified by the complainant firm and it's partners and the GPA is executed before the competent authority, No doubt it is the administrative decision/arrangement made by the complainant firm and 14 C.C.No.51582015 PW1 has diligently and bonafidely acted up on it and court has accepted it. The principal who executed GPA, can question the act of his attorney and not the others. Such being the case, aforesaid argument can't be accepted and the oral testimony of PW1 can't be ignored and brush aside. Further, accused persons, in perverse to their own defense, (GPA, Ledger account fabricated by complainant) they have suggested many facts to PW1 regarding the entries in ledger account which are at Ex.P5 & Ex.D2 and no evidentiary value can be attached to it.
26. Learned counsel appearing for the complainant argued that, admittedly DW1 has maintained complainant firm accounts and she fails to tender the same. The said argument cant be accepted, since the complainant claim is admittedly not based on specific pending invoices amount nor on the ledger account and it is not a civil suit for accounts. Further complainant admitted in the pleading it self that, as a part payment towards the amount due on shipment with interest,administration,cheque return charges, accused has issued the cheque in question. Such being the case complainant is precluded from having such an expectations. Evidently complainant has not specifically sought for interest,and other incidental charges, such being the case no evidential value can attached to some of the material facts elicited from DW1 in respect of the terms & conditions as contend in the unregistered agreement. Further 15 C.C.No.51582015 counsel has relied on the observation made in the judgments, which are Ex.D1& 7. With grate respect to the observations made & conclusion arrived therein by the Hon'ble court, though the said litigation was between the same parties herein, the conclusion arrived therein was based on different set of evidence and circumstance and the said observations cant be made applicable in this case as, relied on by the complainant and since the facts and circumstance, evidence of this case is are not similar.
27. Hence, the accused has been successfully able to rebut the presumption against him, by bringing forth the preponderance of probabilities. On the other hand complainant has fail to discharge his burden of proof, so far as the existence of legally enforceable debt is concern and he could not prove his case beyond reasonable doubt. Hence with the aforesaid discussion, I am answering this point in the Negative.
Point No.2: In view of the reasons and discussion made above, I proceed to pass the following:
ORDER Exercising the power conferred U/sec 255(1) of Cr.p.c. accused no.2 & 3 are acquitted of the offence punishable U/s.138 of the Negotiable Installment Act,1881.16 C.C.No.51582015
The bail bond and surety bond of accused persons shall continue for next 6 months as per Sec.437A of Cr.P.C.
(Dictated to the stenographer and transcribed and computerized by her, corrected by me and then pronounced by me in the open court on 08th day of October 2021) (P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.
ANNEXURES:
1) List of Witnesses Examined on behalf of Complainant:
PW.1 : Joe Joseph S/o K.V Joseph(Manager)
2) List of exhibits marked on behalf of Complainant:
Ex.P.1 : Copy of Minutes dated 21.12.2014 Ex.P.2 : Cheque no. 162106 dt 10.04.2013 for Rs. 6,00,000/ and signature.
Ex.P.3 : Cheque Return memo dt:29.04.2013.
Ex.P.4 : Legal Notice dt:16.05.2013.
Ex.P.4(atoc) : 3 Postal Receipts.
Ex.P.4(DtoF) : 3 Postal Acknowledgments.
Ex.P5 : Accused ledger Account maintain
by complainant (April.2012 to March 2015). Ex.P6 : Complaint filed U/s.200 of Cr.p.c. Ex.P7 : Copy of acknowledgment of registration of firm.17 C.C.No.51582015
Ex.P8 : GPA dated:11.06.2015.
Ex.P9 to 32 : C/Copy of the invoices.
Ex.P33 : C/C of Letter written by accused to complainant.
Ex.P34 : Certified copy of unregistered agreement
dt 02.01.2012.
3) List of exhibits marked on behalf of the Accused persons: DW.1 : Smt. Savitha Harish
4) List of Documents Marked on behalf of the Accused persons: Ex.D.1 :C/C of judgment in C.C no. 18429/2013 Ex.D.2 :Ledger Account Maintained Ex.D.3 :Accused ledger A/c maintained by complainant (April.2011 to April 2013).
Ex.D.4 :Accused bank A/c st.(01.12.2012 to 30.04.2013) Ex.D.5 :Email copy dt. 21.01.2013 with 65(B) certificate. Ex.D.6 :Accused bank A/c statement.(01.12.2012 to30.01.2013) Ex.D.7 :C/copy of judgment in C.C. no.18430/2013 Ex.D.8 :Ledger A/c of the accused maintained by complainant (April.2012 to March 2013).
Ex.D.9 :Accused Ledger a/c maintained (April2011toApril2013) Ex.D.10 :C/copy of the complainant letter dt.26.10.2012.
(P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.
18 C.C.No.51582015(Judgment pronounced in Open Court vide a separate Order) ORDER Exercising the power conferred U/sec 255(1) of Cr.p.c. accused no.2 & 3 are acquitted of the offence punishable U/s.138 of the Negotiable Installment Act,1881.
The bail bond and surety bond of accused persons shall continue for next 6 months as per Sec.437A of Cr.P.C.
(P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.
19 C.C.No.51582015