Bangalore District Court
M/S.Sri Sai Enterprises vs M/S Maruthi Electrical And Hardware on 26 September, 2018
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this the 26th 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.18066/2016
Complainant: M/s.Sri Sai Enterprises
Having its office at No.41, 1st main
road
11th cross, Maruthi Layout
Dasarahalli, Bangalore 24.
rep.by its partner and authorised
signatory
Mr.K.Mahendra.
(By Sri BK -Advocate )
-Vs-
Accused: M/s Maruthi Electrical and Hardware
No.36, near Shani mahatma Temple
Srinivasapura, Bellahalli Road
Yelahanka, Bangalore 64.
Represented by its proprietor &
authorised signatory
Mr.K.N.Ravi Kumar.
Also at
Mr.K.N.Ravi Kumar.
S/o.Mr.Narayanaswamy
R/at.Kakachokkandahalli village
Bhaktarahalli post
Jangamakote Hobli
Shidlaghatta Tq,
Chikkaballapura Dist.
( By Sri NS. Advocate )
2 C.C.No.18066/2016
Offence complained of: U/s.138 of Negotiable Instrument Act
Plea of accused: Pleads not guilty.
Final Order: Accused is Acquitted
Date of Judgment: 26.09.2018.
JUDGMENT UNDER SEC.355 OF CR.PC
This is a complaint filed by the complainant
u/s.200Cr.P.C.against the accused person for the
offence punishable u/s.138 Negotiable Instrument Act
(Herein after called as the N.I.Act for reference)
2. The brief facts of the case of the complainant
are as under:
The complainant is a Partnership firm engaged
in the trading business of hardware, cement ,plywood
and other allied products. The complainant firm is
authorized by K.Mahendra , the partner of the firm to
represent and conduct the case on behalf of the
complainant .
3 C.C.No.18066/2016
It is further submitted that, the accused is
partnership concern and doing the retail trading
business and placed orders with the complainant
requesting to supply the materials to the accused and
the accused issued the cheque bearing No. 858926
dt.10.3.2016 for Rs.2,00,000/- drawn Corporation
Bank, Yelahanka, Bangalore with a promise to honor
the cheque on its presentation. As per the request of
the accused , the complainant presented the said
cheque at IDBI Bank , Yelahanka, Bangalore . To the
utter shock and surprise, the said cheque returned
with endorsement "payment stopped by the drawer".
vide memo dt.31.5.2016.
3. It is further submitted that, this fact has
been informed to the accused and the complainant
issued legal notice dt. 11.6.2016 to the accused
through RPAD calling upon the accused to make the
payment of the cheque amount within 15 days from
the date of receipt of the notice. The notice, is duly
served on the accused on 13.6.2016 and 22.6.2016,
respectively.
4 C.C.No.18066/2016
4. The complainant further submits that the
accused even after receipt of the legal notice , the
accused has not paid the amount covered under the
cheque. However, issued untenable reply
dt.27.6.2016. The accused issued the cheque towards
the discharge of legal liability and stopped the
payment. The accused issued the cheque with
malafide intention to cheat the complainant .
Therefore, the accused has committed an offence
punishable u/s.138 Negotiable Instrument Act
Hence, the complainant prays to convict the accused
u/s.138 Negotiable Instrument Act and to award
compensation in favour of the complainant . Hence,
this complaint.
5. The complainant has lead his pre
summoning evidence and has filed his affidavit in
lieu of Sworn Statement. Prima-facie a case has been
made out against the accused and he has been
summoned vide order of this court.
6. The accused appeared before this court on
10.10.2017 and he has been enlarged on bail . The
5 C.C.No.18066/2016
substance of accusation has been read over to him to
which, he pleads not guilty and claims to be tried.
7. In his post summoning evidence the
complainant has examined himself as PW 1 and filed
his affidavit, wherein, he has reiterated the averments
made in the complaint and got marked the documents
at Ex.P.1 to Ex.P.14.
8. The statement of accused u/s.313 Cr.P.C
has been recorded. The accused denied the
incriminating circumstances found against him. The
accused is examined as DW 1 and got marked the
documents at Ex.D.1 to Ex.D4. The complainant
have not cross examined DW1.
9. Heard the Advocate for the accused . The
Advocate of complainant did not submit their
arguments.
10. Upon hearing arguments, the following
points arise for my consideration:
1. Whether the complainant
proves that the accused has
committed an offence
punishable u/s. 138 Negotiable
Instrument Act ?
6 C.C.No.18066/2016
2. What order.
11. My answers to the above points are as
under:
Point No.1 : In the Negative.
Point No2 : As per final order for the
Following,
REASONS
12. Point NO.1: The complainant is a
Partnership firm engaged in the trading business of
hardware, cement ,plywood and other allied products.
The complainant firm is authorized by K.Mahendra ,
the partner of the firm to represent and conduct the
case on behalf of the complainant .
It is further submitted that, the accused is
partnership concern and doing the retail trading
business and placed orders with the complainant
requesting to supply the materials to the accused and
the accused issued the cheque bearing No. 858926
dt.10.3.2016 for Rs.2,00,000/- drawn Corporation
Bank, Yelahanka, Bangalore with a promise to honor
7 C.C.No.18066/2016
the cheque on its presentation. As per the request of
the accused , the complainant presented the said
cheque at IDBI Bank , Yelahanka, Bangalore . To the
utter shock and surprise, the said cheque returned
with endorsement "payment stopped by the drawer".
vide memo dt.31.5.2016.
13. It is further submitted that, this fact has
been informed to the accused and the complainant
issued legal notice dt. 11.6.2016 to the accused
through RPAD calling upon the accused to make the
payment of the cheque amount within 15 days from
the date of receipt of the notice. The notice, is duly
served on the accused on 13.6.2016 and 22.6.2016,
respectively.
14. The complainant further submits that the
accused even after receipt of the legal notice , the
accused has not paid the amount covered under the
cheque. However, issued untenable reply
dt.27.6.2016. The accused issued the cheque towards
the discharge of legal liability and stopped the
payment. The accused issued the cheque with
8 C.C.No.18066/2016
malafide intention to cheat the complainant .
Therefore, the accused has committed an offence
punishable u/s.138 Negotiable Instrument Act
Hence, the complainant prays to convict the accused
u/s.138 Negotiable Instrument Act and to award
compensation in favour of the complainant .
15. In support of the case, the complainant
has produced the documents marked at Ex.P.1 to
Ex.P.14. Ex.P.1 is the General Power of Attorney.
Ex.P.2 is the cheque in question. Ex.P.3 is the cheque
return memo. Ex.P.4 is the notice, dt.11.6.16. Ex.P.5
and Ex.P6 are the postal receipts. Ex.P.7 and ExP8
are postal acknowledgements. Ex.P.9 is the reply
notice. Ex.P.10 is the tax invoice. Ex.P.11 is the
ledger account extract. Ex.P.12 is the VAT Registration
Certificate. ExP.13 is the CST commodity certificate.
Ex.P.14 is the form No.4.
16. It is the defence of the accused that he is
running a paint, electrical , and plumbing shop
under the name and style M/s.Maruthi Electricals at
Yelahanka hobli, Srinivasapura. There is no
9 C.C.No.18066/2016
transaction entered into between the complainant and
the accused. The accused has not purchased any kind
of decolam sheets as stated by the complainant in
his complaint. The complainant tough stated that the
accused used said sheets for his personal use he has
denied the same and stated that he has never
purchased the said decolam sheets for his personal
use.
17. It is further the defence of the accused that
he started the business in the year 2007 . His
brother- in-law one Venu is also partner in the said
business. He got his furnitures prepared in the year
2007 itself for that he has not used any decolam
sheets.
18. The seal used by the complainant in the
invoices does not belong to the business of the
accused. He never uses such seal. To show this
aspect before the court, he has produced the bills
and invoices of other companies with whom the
accused had transaction marked at Ex.D.2 . Hence,
submitted that the seal used by the accused is
10 C.C.No.18066/2016
entirely different than what the complainant has
shown in his invoices.
19. It Is further defence of the accused that the
cheque in question is issued to one Mr Nagesh who is
none other than the relative of the present
complainant . The accused was the subscriber of
chit from Mr.Nagesh and while dealing so, the
accused had issued 5 cheques for the purpose of
security to Mr.Nagesh. When once the accused did
not pay the chit amount, said Mr.Nagesh had called
up the accused and threatened him that if he does
not pay the chit amount he would present the cheques
for encashment. Therefore, the accused immediately
rushed to the bank and issued "stop payment
instruction to his banker". Subsequently the accused
received the demand notice from the complainant
and for which he has duly replied. The complainant
and Mr.Nagesh colluding with each other, also
presented the remaining 4 cheques belonging to the
accused person through his another brother-in-law
Sri Rajanna. The accused had no any transaction or
11 C.C.No.18066/2016
dealing either with the complainant or Mr. Rajanna.
The cheque in question of the present case and the
other cheques were issued by the accused to
Mr.Nagesh for the purpose of security in the chit
business .
20. The accused further admits that he had
received cash of Rs,5,00,000/- towards the chit bid
amount and at the same time issued 5 cheques for
purpose of security. Except the signatures on the said
cheques nothing was written on them when the
accused issued them to Mr.Nagesh. After filing of the
present case the accused called up to Mr.Nagesh, but,
said Mr.Nagesh did not respond to the accused at all.
21. The accused further submits that he has not
purchased any decolam sheets from the complainant
and at the time of starting the business he had paid
Rs.10,000/- and got his furnitures for his shop. The
accused has produced the photo copies along with the
CD of his shop to show that he has not used any
decolam sheets either to manufacture his furnitures or
for the purpose of sale. Hence, on all these, grounds
12 C.C.No.18066/2016
the accused prayed to dismiss the complaint filed by
the complainant .
22. After examination of the accused as DW1,
the complainant and their counsel remained absent
before the court and failed to examine DW1. The
contents of the examination in chief affidavit of DW1
and the documents produced by him have remained
unchallenged and unvibrated.
23. During the course of arguments, the
complainant even failed to argue the matter .
24. Learned Counsel for the accused
vehemently argued before this court that the accused
has replied to the notice given by the complainant
.with the same contentions as he has deposed before
this court as DW1. But, no rejoinder was issued by the
complainant in this regard.
25. The learned counsel argued that there is no
transaction entered into between the complainant and
the accused . The accused has not purchased any
kind of decolam sheets from the complainant .
Though PW 1 states that they have transaction with
13 C.C.No.18066/2016
the accused person, no documents are produced to
that effect. Hence, an adverse inference has to be
drawn against the complainant .
26. The learned counsel for the accused also
argued that the documents produced by the
complainant are concocted and created. If at all the
complainant has supplied decolam sheets to the
accused , they should have produced the delivery
challan to that effect. But no such documents are
produced by the complainant. Therefore, the other
documents are nothing but created documents. The
accused is innocent . There are no transaction
entered into between the complainant and the
accused . Hence on all these grounds the learned
counsel for the accused prayed to dismiss the
complaint against the accused person .
27. On careful perusal of the material on
record it is found that the PW 1 is Power of Attorney
Holder wherein the power of attorney is executed by
Smt.Priyanka, W/o. Mahendra K. It shows that
Smt.Priyanka , the original complainant is the wife
14 C.C.No.18066/2016
of PW 1. The cheque in question is alleged to have
been issued in the name of Sri Sai Enterprises for
Rs.2,00,000/-. To this effect the complainant has
produced the carbon copy of the tax invoice /credit
bill marked at Ex.P.10 and a copy of ledger account
extract. On meticulous perusal of Ex.P.10, the tax
invoice, it is found that a round seal is used in the
name of Maruthi Electricals and Hardware , Bangalore
64. The said invoice is dt.2.4.16 for an amount of
Rs.1,75,000/-. Ex.P.11 is the copy of the ledger
account. Except these 2 documents, the complainant
has not produced any other documents relating to the
alleged transaction. The accused has very well
disputed the round seal which appears on Ex.P.10 and
in rebuttal of the same he has produced the invoices of
his shop under which he has dealt with other persons
marked at Ex.D.2 which clearly go to show that the
accused does not use such round seal at all. This
aspect of the matter has not at all been questioned or
cross examined by PW1. The complainant has not at
all objected these documents. In fact they have not
15 C.C.No.18066/2016
cross examined DW1 in this regard at all. Therefore,
the invoice produced by the complainant as per
Ex.P.10 comes under the cloud which the complainant
has to explain. But the complainant has utterly failed
to explain anything in this regard.
28. Coming to Ex.P.11, which is copy of the
ledger account extract, which is only sealed by Sri Sai
Enterprises , Bangalore i.e the complainant company.
This document is not at all supported by any
certification. Though PW 1 has admitted in his cross
examination that he has been dealing with the
complainant since 2013 and 14 and he has dealt with
the accused 5 to 6 times but, the ledger account,
extract only pertaining to the transaction in question
has been produced by the complainant . If at all the
complainant had dealt with the accused person 4 to
5 times in the year 2013 -14, what restricted him to
produced those ledger account extract before the
court. The non production of said ledger account
extract on the part of the complainant to show that he
has been dealing with the accused itself is sufficient
16 C.C.No.18066/2016
to raise doubt on the very case of the complainant .
Moreover as stated supra, the present document,
Ex.P.11 is not supported by any documentation.
29. The complainant has absolutely not
appeared before the court after his evidence to
substantiate the case or discharge the reverse burden
casted upon him. The complainant has utterly failed
to explain with regard to the doubts raised on his case.
The non explanation of the complainant in this regard
is sufficient to draw adverse inference against him.
Moreover, the complainant has not produced any
satisfactory documents before this court. Mere
production of the cheque in question and saying that
the accused has signed the said cheque is not
sufficient. The complainant is required to prove that
the cheque is issued by the accused person in
discharge of his liability.
30. According to the complainant , at the time
of supplying the alleged laminated sheets to the
accused, he had brought the stock from 2 different
companies. But if at all he had brought the stock from
17 C.C.No.18066/2016
2 different companies, he should have produced the
bills or invoices to that effect. But no such
documents are produced by the complainant in this
regard. It is clearly admitted by PW 1 in his cross
examination that in order to supply those alleged 200
laminated sheets 407 vehicle is required. But he had
supplied the said sheets to the accused in 2 different
Tata Ace Vehicle. But, Ex.P.10 does not bear either
the name of the vehicle or the vehicle number. This
aspect of the matter again creates a doubt on the case
of the complainant .
31. Further, the complainant has stated in the
cross examination that the accused purchased alleged
200 laminated sheets for his personal use i.e for the
interiors of his house and shop. But, Ex.P.10, the
invoice is raised by the complainant in the name of
M/s.Maruthi Electricals and Hardware. If at all
accused purchased the laminated sheets for his
personal use , what was the necessity of raising the
Ex.P.10 in the name of the firm i.e M/s.Maruthi
Elecricals. This aspect of the matter also raises a
18 C.C.No.18066/2016
doubt on the very case of the complainant . Absolutely
no explanation is provided on the part of the
complainant in this regard. Therefore, the court is
of the opinion that the benefit of this should be
extended to the accused person. The complainant
has utterly failed to prove his case. In fact he has
utterly failed to prove before the court that there
existed any transaction between the complainant and
the accused as alleged in the complaint. The
complainant has also failed to explain the doubt
raised with regard to his case. Though the
complainant admitted he has got ledger account
extract entered into between the complainant and
the accused, but, he has failed to produce the same.
Non production of the same itself is sufficient to
disbelieve the case of the complainant . Therefore,
under all these circumstances, the court is of the
opinion that the benefit of doubt must be extended to
the accused person . Hence in view of this I answer ,
Point No.1 in the Negative.
19 C.C.No.18066/2016
32. 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.
Hence, I proceed to pass the following :
ORDER
Exercising the powers conferred upon this court u/s.255(1) Cr.P.C., the accused is hereby Acquitted of the offence punishable under Sec.138 Negotiable Instrument Act. The bail bond of the accused and that of the surety if any stands 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 26th 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 : K.Mahendra.
20 C.C.No.18066/20162) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : G.P.A. Ex.P2 : Cheque Ex.P3 : Cheque return memo Ex.P4 : Copy of the legal notice. Ex.P5 &6 : Postal receipts . Ex.P7&8 : Postal acknowledgements. Ex.P9 : Reply notice. Ex.P10 : Tax Invoice. Ex.P11 : Account Extract. Ex.P12 : VAT Registration Certificate. Ex.P13 : CST Certificate. Ex.P14 : Form No.4.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
DW1 : Mr.Ravi Kumar.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED Ex.D1 : CC of the complaint.
Ex.D2 : Invoices.
Ex.D3 : Photographs.
Ex.D4 : CD
( SHIRIN JAVEED ANSARI )
XXV A.C.M.M.,BANGALORE.
21 C.C.No.18066/2016 22 C.C.No.18066/2016 23 C.C.No.18066/2016