Sri B M Basavaraj vs Srinivas S Datta on 16 March, 2012

[Cites 3, Cited by 5]

Karnataka High Court

Sri B M Basavaraj vs Srinivas S Datta on 16 March, 2012

Bench: Jawad Rahim

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16"' DAY OF MARCH 

BEFORE

THE HON'BLE MR.JUSTIC_E»..JA_WAD"   

CRIMINAL APPEAL     

BETWEEN

SRI B M BASAVARAJ 
MANAGING PARTNER OF _ 

M/S NEURAL SYSTEMS

NO. 1017, 167" MAIN V 5

1" STAGE, 1" STAGE  

B.T.M. LAYOUT,      *

BANGALORE _--fF_36Q¥529 .1    V' ...APPELLANT

(BY SR1.  I-f:VHUNASIEKATT'I'MAT:H,VADV.)

AN
SRINIVAS S-DATTA"   v 
M/S. SPIN"TECHvNOL._OGI'ES 
NO.63/_3, 2"'"~FLOO.R,;-- 4". MAIN
ST" CROSS, CHAMARAJPEET

 '  . . . . . ..

 'AI[SO. IR/VAT 
'~1OTH }A'-I M--AII\.',RQ'AD

27T""CROSS"Yi'~33'° BLOCK
JAYANAGAR 

; BANGALORE  RESPONDENT

* (BY MS.NEETHA, ADV. FOR M/S.MAHESH & CO.) CRL.A FILED U/S.378(4) CR.P.C BY THE ADVOCATE FOR .1, __THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ACQUITTAL ORDER DT.l1.7.2007 ﬁg;

PASSED BY THE XIII ADDL. C.M.M, B'LORE AND CONVICT THE RESPONDENT FOR THE OFFENCE P/U/S.l38 OF N.I. ACT..g'."--,g THIS CRL.A COMING ON FOR HEARING THI's.c_'OA'§kfTi}iE,.' COURT DELIVERED THE FOLLOWING:

JUDGMENJASWI Acquittal of the respondent/accgulsed isg--i:egs'tione'd"byVF the complainant in an action"'us.n:der Sec't.i.onraZ:.3-78"(v{i)"of the Cr.P.C.

2. Heard vlearned'» cIouVn's.e»l._.Sri;GV;F*.;"l?lunasikattimath for the appel§ia'ntEa.nd~. l&.ls:i\lVeet_.ha;.learned counsel for the respond_ent/'aclcusevdggI " the records in su ppler_nentatio~'n -t.hje'reto,:" ' _ ' I "The .c'ont'e_xtu'al facts to which the learned 'TV.N.-'c0d:.h"Seg-\\_/@r1'«i,DOthV"§iVd'E$'Vhave adverted to and also manifest from th'e,_'caseg_Vp'apers reveals:

The "appellant B.M.Basavaraj initiated prosecution J'ag.a_inst"'respondent Srinivas S Datta on allegation that he Managing Partner of M/s.Neural Systems, a partnership firm which had business dealings with respondent--Srinivas.S.Datta and his company Spin 0"?

Technologies. During the course of business transaction, the appellant who is in business supplying desi.g_nﬂ'a.nd development services in the field of electiroriics-~..__ffo_r_"_ development of units, entered into contr'a--ctf.w'ith=_th.e 3' respondent. Under the contract,:=.,_Vthe-refspon.dlent,/a'c:cusad' requested the complainant' for providing:'V"V'di.esl_gn development of AVL Units w'i'th{Vba.s'e unit. The request was accepted' the issued "quotation on 13.03.2003 agreeing.._to'_supply,th'e,..'de--?5j-gV'n development in considerati':o'n:,:'~sof agmoiunxt in a sum of Rs.1,25,000[f.-iﬁ_44_"';»':Vh document dated agreement, he would pay the amount in terms of the agreAemae'nt:0a'r'i'd' wlhenisdemanded issued the impugned and Rs.75,000/--. The cheques on bank encashment were dishonoured for insu.fficienc_y,i'.~'of funds necessitating issuance of statutory 3""'~.__V"*»nA,otice"which was not complied by the respondent/accused.

4. The accused on being summoned, denied the 3' liability placing the complainant to strict proof of the ﬁvgqy allegation that he had become entitled to receive the amount covered underithe cheques. The specificvd:efen.ce of the accused is there was no agreement vide.E${}'l52';g--..:It*is_T' .

only an offer made by the complainant to'p'r'evi'dge""certain " it services in anticipation of which=..:he_-~iaA§jreed 'p'a:;,,,._'t"rie*é amount. Since the complain-a__nt hadlnot i:o'i*.~j;p.l.i,ed iwitdh obligation as offered in the lE'>'<.lV5:2:v;he:}was not liable to pay any were given in anticipation of compliaynce "t"errrisi._"incorporated in Ex.P2 and eixiisvtlijihigi'liability. Thus the cheques were ' "

" the complainant tendered evidence Pl./\/ll' .an'd"p.lKaced reliance on 19 documents whi_lei.,th_e accus'ed..._.l.ead no evidence. The learned trial Judge -.a4nal'ysi"ng the evidence found the defence was p'ro'pe'r the accusation for charge under Section 13s"or and recorded the acquittal. Assailing it, the V' '..ﬁ.com'p.glainant is in appeal. H6. The learned counsel did endeavor his best to seek reversal of the finding of the Trial Court on the @{92/ it contention that the Trial Court has not understood the case of the appellant. He would submit Ex.P2 dated is a clinture to establish the liability of the would submit that the accused has not disp'utved~..l_=:$<~;:P2and "~ was thus bound to honour the deymagnidlgl refe4rs':to__ the' cheques impugned in this-i___cases,"'which"'v'A'h;aye dishonoured as establishing regard, he would submit that disputed the signature on these chyequeis in terms of Ex.P2 and' the accused is established doubts. He seeks relying on the following decisions; "

Vthe'"'cas_e_vof M/s.Ganesh Enterprises Vs. ".'V'D';iR>'.'v.'S"'.a'r.a|a reported in ILR 2007 KAR 801. IQ . VV.In-"."ft--hei=hcase of B.E.Chandrashekar & otrs. Vs. Z of Kar by Peenya Police reported in ILR 9:007 KAR 809.

In the case of K.Bhaskaran V. Sankaran Vaidhyan Balan reported in 1999 Cr|.L.J 4606. In the case of G.Poovaiah V Secretary, Saiva Bhanu Kshatriya College, Aruppukkotta'i._V' reported in 1999 Crl.L.J. 4612. I I In the case of K.N.Beena V. 3 reported in 2001 Crl.L.J. 4%45g.:."n§1. I In the case of M/s.Indsearn_:'Service~; Bimal Kumar Kerjiwalllyrepnorted Ciril. 4746. _ ._ . , In the case of U.P. repor-:j_c"e'cijr} '_2ol'35 L'.:_'J "--1¥alV'«'\{."'$tate of up. (FB) N V364.

. P Dalal V. Bratindranath

- gBarie:jeeV.repr5rte'rﬁi in 2001 AIR scw 3861. contra, the learned counsel for the H'res-ponvdent/Vaclcused has supported the impugned jud"grnent'4"and the reasons assigned therefore by the xieiarneyd trial Judge.

8. At the outset, we need to notice complainants 'charge against the respondent germinates for Ex.P2. The W complainant ciaims the amount on the basis of its quotation submitted to the accused which is incorVpoy_rat_ed under Ex.P2. The terms in Ex.P2 are:

"Following are the details :0f'""tl7~e ti7'~£1~e received from Mr.Srinivas S "'tovvar.ds. and Development of AVL?Uniisy»with b.ase_:S'tatio'n' 'Unit. Payment: ' ' ' >

1. Rs.25,000--'=,_0O'.V-atbh"V._Vth:e release of

2. time of Board Level

5. " 'at the time of Road Trials.

. ., at the time of supply of units.

A .i3ﬁa/aiicéttt"Rs.50,o00=00 Plus the Taxes within 45 Days from the date of ~' of Units.

x hereby agree by the above payment terms."

A 9. It admits of no doubt that Ex.P2 is a letter V mexchanged between the parties and may be construed as an offer and acceptance. But what is material is to note contract if any emerging from the said trans_acti'o_4n'-..is contingent. The schedule of payment refers . to be performed by the Company (complainai*»vt-:):;"~. »N"o'.doubt:,4 " if if such acts are performed, it arn,oun_ts..to A'comp'lyi'ng»._w'ith the obligation under the said agreement andjlegitiymaltely, the complainant will be entitled"toienforcetheﬁcheiques. If the accused substantiates' stipulated therein are not c'omplie.d.,,:'h--is be accepted disentitling V' enforce the cheques.

This is hvasdone in this case. In his thief'-.,t___Tfia!uW(VZourt, the accused has canvassed! a specific defence that he issued ., t3hel4E'ch.eciues llimplugned in anticipation that the .--V.,...,cQrti..#lai..g1an:t..wou'ldVHfu|éfi| obligation which was cast on the Ex.P2. Complainant's evidence on record estayblishesiﬂie cheques impugned were signed and issued the accused and they were dishonoured for insufficiency if gV."V'ofvfuiids on presentation. But that would not be sufficient __t_c-i establish the charge for offence under Section 138 of V' N.I.Act, unless the complainant discharges the burden of proof that the said cheques were issued towards discharge in part or full a debt or legal liability. As could be see'-nylthe complainant felt content by feeble evidence.."t'hVaj§i:tithe". respondent/accused had issued the cheq_u'es--dw~vhi'Ch were it dishonoured and relied as presurnlptions gundaer-SVecti'o:n..__1"3V9 of the N.I.Act which permits.»i'eg__al presulrnptionit.ov.b_e"raised that the cheque has to be issued in relation to existing This presumption undoubtedly is Aavailabl.e...:in--..law' complainant discharging p.r'o:yi'ng':'e>tistence of debt or legal establish necessary him lead to issuance of chequeV'.A'Th'e be'st_co.ursé..i£ije"'complainant had to follow was to estabglish'u'th.aht' has fulfilled its obligation under Ex.P2,

-A.._thqéna0fillY raised the presumption available of N.I.Act. For the reasons not e'><Ap-lained*,nt'~i1e complainant did not lay any proof much plead that he had fulfilled obligation cast on him vide At the stage of appeal also, learned counsel only "reiterates that the complainant has no obligation to establish other ingredients in view of the presumption available under Section 139 of N.I.Act, and does not answer the relevant questions.

10. The decisions referred to by counsel for the appellant hav:e""r'eceived,my, serious:

consideration. The presumption decision is that when the con'1.p:la.i,nant. esgtaiblgifsjhesihiscase and discharges primayrf/.q,V the,..ibuurd:en""-of proof','~th'e burden undoubtedly shift on to'th_e it in view of the legal none of these judgments; is granted to the compla.inan_t:*,to:':'1iIesca~pe--::V'fro'm~~-"his obligation without dischargin'g" about the transaction resulting u'in__gissuVance._V"of:_"~~'l'cheques towards legal liability. Therefore, unon'e"*Cf.._t_he judgments are of assistance to the *c;om_pla.i,_n'arnt._since on facts, we see that the complainant Hh-as"-ifailed-7jtog'ci=establish the basis of charge against the g respor)d"e,ntV.x In this view, the Trial Court's judgment ':f..acqu,itting the accused cannot be faulted. I am satisfied, * the conclusion reached by the Trial Court is in the correct Otis perspective calling for no interference. Hence, the appeal is dismissed.

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Karnataka High Court