Bangalore District Court
M/S.Pallmas Arts vs M/S.Magnum Enterprises on 15 October, 2015
IN THE COURT OF THE XXV ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE
Dated this the 15th day of October , 2015.
Present: Sri. Shashikant B.Bhavikatti, B.Sc.L.L.B.,(Spl)
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No.43995/2010
Complainant: M/s.Pallmas Arts,
No.114, Pantharapalya,
Nayandanahalli,
Mysore Road,
Bangalore 39.
Rep.by its proprietor- Sri.Ashoek K.Taneja
(By Sri.Vishnumurthy -Adv.)
- Vs -
Accused:
1.M/s.Magnum Enterprises,
Export House,
Recognized by Govt.Of India,
No.11, Camac Street,
Kolkata - 700 017.
Rep.by its Partner-Sri.Aditya Banthia
2.Sri.Aditya Banthia,
Partner,
M/s.Magnum Enterprises,
Export House,
Recognized by Govt.Of India,
No.11, Camac Street,
Kolkata - 700 017.
(By Sri Harsha R.Londhe -Advocate)
2 C.C.No.43995/2010
Offence complained of: U/s. 138 of Negotiable Instruments Act.
Plea of accused: Pleaded not guilty.
Final Order: Accused are Acquitted .
Date of order: .10.2015.
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 under Sec.138 Negotiable
Instruments Act (For short N.I.Act).
2. The case of the prosecution is as under :
The complainant is manufacturer and exporter of ready made
garments and the accused No.1 is one of the customers of the
complainant and accused No.2 is the partner of accused No.1. The
accused had given the work order to the complainant for about 11,088
pieces of ladies top to stitch the same and deliver the same to them and
that the accused have fixed a price of Rs.65/- per piece amounting to
Rs.7,20,720/- . Further, as per the work order, the accused paid a sum of
Rs.3,20,000/- as advance and promised to pay the balance amount of
Rs.4,00,000/- after finishing the work. The complainant had stitched the
above said 11,088 pieces of ladies top and delivered the same to the
3 C.C.No.43995/2010
accused. In pursuance of the above transaction, the accused issued a
cheque bearing No.489750 dt.16.10.2009 for a sum of Rs.2,50,000/-
drawn on Canara Bank, Brabourne Road, Kolkata towards part paym`ent
requesting the complainant that they will pay the remaining balance
amount of Rs.1,50,000/- within 15 days. On presentation of the said
cheque for collection through Tamil Nadu Mercantile Bank Ltd, Bangalore
city, the same returned dishonoured for the reason "Payment Stopped by
the drawer " vide endorsement dt.05.02.2010. Hence, complainant got
issued a legal notice dt.03.03.2010. Inspite of service of notice, the
accused failed to make payment of the cheque amount. Hence, this
complaint.
3. In pursuance of the process issued, the accused appeared
before the court and he is on bail.
4. Copy of the prosecution papers are furnished to the accused as
required under law.
5. Plea under Sec.138 N.I.Act is framed , read over and explained
to the accused in vernacular. The accused pleaded not guilty and
claimed the trial.
4 C.C.No.43995/2010
6. On behalf of the complainant, its Proprietor namely Ashoek
K.Taneja got examined as PW 1 and got marked the documents at Ex.P.1
to Ex.P.16
7. The incriminating circumstances found in the case of prosecution
against the accused is read over and explained to the accused in
vernacular. The accused denied the same. On behalf of the accused,
the accused No.2 himself examined as DW1 and got marked the
documents at Ex.D.1 & Ex.D.2 .
Heard arguments and perused the materials on record..
8. The learned counsel for the complainant relies upon the
following catena of rulings.
1. 2005 Crl.L.J.269
2. 2006 Crl.L.J.4330.
3. 2004 Crl.L.J.529.
4. 2011(3) KCCR 1825.
The learned counsel for the accused relied upon the following catena of
rulings in support of his arguments.
1. 2005 Crl.L.J. 269.
2. 2006 Crl.L.J.4330.
3. 2004 Crl.L.J.529.
4. 2011 (3) KCCR 1825.
5 C.C.No.43995/2010
The principles relied upon by both the parties are made applicable to
the facts and circumstances of the case wherever they are found
applicable.
Whether the complainant proves that the
accused issued the cheque in favour of
the complainant and the same was
dishonored and even after sending
demand notice accused failed to pay the
cheque amount and thereby guilty of the
offence punishable under Section 138 of
N.I.Act?
is the point for determination.
REASONS
9. The date of cheque is 16.10.2009. The date of presentation and
return of the cheuqe is 05.02.2010. The reason for return is "Payment
stopped by the drawer". The date of notice is 03.03.2010, the date of
receipt of notice is 09.03.2010. The date of reply by the accused is
23.03.2010. The date of complaint is 22.04.2010.
10. According to the complainant the accused towards part
payment of due amount (Rs.4,00,000/-) out of the total amount of
Rs.7,20,720/- of which he had paid Rs.3,20,000/- as advance as per the
work order dt.05.09.2009, 05.10.2009 and 12.12.2009, issued the alleged
cheque for Rs.2,50,000/- further promising to repay the remaining
6 C.C.No.43995/2010
amount of Rs.1,50,000/- within 15 days to the complainant . The
complainant presented the same for encashment to the account of the
accused on 05.02.2010. It came to be dishonored due to "Stop Payment"
instruction by the accused. Thus, according to the complainant the
alleged amount being part of legally enforceable payment for which the
accused issued the alleged cheque is legally enforceable debt and
thereby, it is the case of the complainant that the accused committed the
alleged offence.
11. PW 1 in his evidence states that the accused placed work
order through invoice dt.05.09.2009 for supply of ladies blouse cut pieces
for a sum of Rs.21,18,880/-. Further, the accused placed another work
order/invoice dt.05.10.2009 for a sum of Rs.6,78,716/- . Further, the
accused placed work order/invoice dt.12.12.2009 for a sum totally
amounting to Rs.7,20,720/-. The complainant supplied all the goods to
the accused through one Harish Shetty. Out of Rs.16,18,316/-, the
accused paid Rs.12,17,858/- as per three invoices and there remained
Rs.4,00,458/- which is the due amount payable by the accused for supply
of the goods. Further, the accused as per the invoice dt.12.12.2009
having given the work order of stitching ladies top amounting to
Rs.7,20,720/- (out of which the accused paid Rs.3,20,000/- )as advance
7 C.C.No.43995/2010
promised to pay balance of Rs.4,00,000/- after completing the work .
Accordingly, the complainant stitched ladies top in order to deliver to the
accused company. The accused No.2 in pursuance of the said transaction
being the authorized partner of accused No.1 issued the alleged cheque
for Rs.2,50,000/- and it came to be dishonored due to "Stop Payment"
instruction by the accused. Thus PW 1 deposes that, the accused inspite
of receipt of legal notice issued by the complainant failed to repay the
cheque amount. However, reply given by the accused is untenable.
Thus, PW 1 deposes that the accused committed the alleged offence.
12. It is the defence of the accused that on 08.10.2009 and
22.10.2009 (date of cheque) the accused is not at all liable to pay any
amount to the complainant as the accused had paid excess amount of
Rs.53,404/- against the same. Thus, it is the defence of the accused
that the complainant had excess amount with it belonging to the accused
as on the date of cheque. It is further defence of the accused that the
cheque amount is paid to the complainant by way of RTGS on
22.10.2009 and that a request for RTGS payments is made by the
complainant . Thus, it is the defence of the accused that there are
grounds for him to stop payment of the cheque. The amount paid by the
accused through RTGS is duly credited to the bank account of the
8 C.C.No.43995/2010
complainant which was done at special request of the complainant . The
reason shown for the same by the complainant is urgent need for the
said amount since the cheque No.489750 deposited and issued by the
accused would take its own time. Inspite of request made by the accused,
the complainant did not return the said cheque and so also some fabrics
and finished goods lying with it. On the other hand the complainant itself
is liable to pay Rs.1,57,397.73 to the accused in respect of debit note
issued by the accused as and when the occasion for the said debit arose .
Inspite of receipt of those debit notes, the complainant failed to make the
said payment to the accused with malafide intention. Apart from this, the
complainant had charged excess amount of Rs.10/-per piece in respect
of bulk pertaining to 11088 pieces. On negotiations, the complainant
became liable to pay Rs.3,67,188/- to the accused for the cost of fabrics
and other charges and even debit note of the same is also issued by the
accused and duly received by the complainant. Even the debit note
pertaining to the excess amount charged by the complainant is also
received by the complainant without any objections. In February 2010,
the accused requested for the balance quantity of the goods and so also
the due amount payable by the complainant by issuing a ledger account
to the complainant , but, the complainant failed to pay the same. On the
other hand, the complainant having held the stocks belonging to the
9 C.C.No.43995/2010
accused illegally to cause wrongful loss to the accused, suppressing
material fact, has come up with this criminal case by fabricating the
documents.
13. Thus, according to the accused there are debit notes
dt.17.11.2009, 29.12.2009 and 15.01.2010 issued towards the liability of
the complainant to pay the contended amount pertaining to the said
debit notes. Thus, according to the accused the complainant is liable to
pay Rs.1,57,397.73 towards the debit notes, so also towards the goods
which are not returned back inspite of request for it.
14. DW1 namely the 2nd accused in his evidence deposes that the
accused used to get prepared, the goods from the complainant out of the
raw materials, supplied by the former to the later. The complainant used
to prepare those goods and supply the same along with the bills to the
accused. The accused used to pay the bills supplied by the complainant
in respect of those goods.
15. DW1 further deposes that, the accused paid the cheque
amount on line at the request of the complainant on 22.10.2009 and
stopped payment of the alleged cheque. He further deposes that the
complainant wanted immediate encashment and therefore requested the
10 C.C.No.43995/2010
accused to make payment through on line. Agreeing to the same the
accused made the said payment and asked the complainant to return the
alleged cheque. However, later on the accused came to know that the
complainant had issued the notice of dishonor of the said cheque without
returning it to the accused. He deposes that the accused is not liable to
pay the amount to the complainant. On the other hand, there is liability on
the complainant itself to pay the due amount of the accused.
16. PW 1 in the cross examination states that the complainant is
an income tax assessee and that the liability of the accused is shown in
the income tax returns furnished for the relevant period. According to
PW1, the last transaction between the complainant and the accused is
during October, 2009. There is no hurdle for the complainant to
produce the income tax returns. However, in further cross examination
he denies that the accused paid the cheque amount by way of RTGS
after issuance of legal notice. However, he admits that he received
RTGS on 22.10.2009. PW1 in further cross examination explains that
Ex.P.11 is Job Work Invoice dt.05.09.2009, Ex.P.10 and Ex.P.13 are
similar Job Work Invoices dt.05.10.2010 and 12.12.2009 According to
him, the cheque came to be issued by the accused in the mean time i.e
cheque dt.16.10.2009 namely Ex.P.1. However, the cheque is issued
11 C.C.No.43995/2010
after raising those invoices. PW1 admits that he raised the invoice
dt.12.12.2009 after issuing of the cheque after two months. Though
PW1 denies that he requested the accused to make the payment of the
cheque amount by way of RTGS, he voluntarily says that he had received
RTGS dt.22.10.2009 . He further denies that he misused the cheque even
though he had received the cheque amount through RTGS. However,
he explains that all payments have been made by the accused through
RTGS except the present cheque. It is brought on record in further cross
examination of PW 1 that the transaction in question pertains to a running
account standing in the name of the accused. However, he denies that the
accused is not liable to pay any amount after adjustment of all the
accounts. Thus, PW 1 sticks up to the stand that the accused is liable to
pay the cheque amount and denies that defective goods belonging to the
accused are still lying with him. He further denies that the products
supplied by the complainant to the accused were defective and that the
accused had issued debit bill to the tune of Rs.1,57,000/- towards liability
of the complainant.
17. DW1 in cross examination explains that the complainant used
to convert the raw materials of the accused into finished goods and return
them back to the accused. He admits that there was custom between
12 C.C.No.43995/2010
both of them for making payment after completed goods are returned
back to the accused. Further, it is his say that it was a continuous
process between both of them.
18. It is brought on record in his further cross examination that
Ex.D1 indicates both the amounts pertaining to Ex.P.11 and Ex.P.12 and
so also the amount pertaining to Ex.P.13 . DW 1 refers the word
shown as "payment" in Ex.D.1 to be the word used to show that the
accused had made payment of the amount, through the bank account.
He admits that payment is shown to be made only through Canara Bank
account. It is further the evidence of DW1 that the word shown as "Debit
Note" in Ex.D.1 shows the balance payment to be made by the
complainant in favour of the accused. He denies that the accused is
liable to pay Rs.3,67,188/- to the complainant as per the Debit Note. He
further denies that the accused is liable to pay Rs.4,00,458/- towards
balance to the complainant . He further denies that the total amount
shown against the Debit Note in Ex.D.1 is the amount payable by the
accused as balance to the complainant . However, he stated that the
Debit column in Ex.D.1 includes the payment made by the accused to the
complainant as well as the balance amount payable by the complainant
to the accused. Similarly according to him, the Credit column in Ex.D.1
13 C.C.No.43995/2010
refers to the invoice amount paid to the accused. DW1 in further cross
examination admits Ex.P.11 to Ex.P.13 to be the invoice pertaining to the
work entrusted by the accused to the complainant. According to him as
per Ex.D.1, he has paid Rs.12,00,000/- to the complainant . He asserts
that he is not liable to pay any amount to the complainant and denies that
he is liable to pay Rs.4,18,316/- to the complainant . He further denies that
he had agreed to pay Rs.4,00,000/- to the complainant during the
discussion held between them. He further denies that the cheque issued
by him for the alleged amount is towards part payment of the same. He
further denies that he had told the complainant to pay the balance amount
excluding the cheque amount through RTGS. It is his say that the Debit
Note in Ex.D.1 also includes the amount pertaining to the defective goods
payable by the complainant. He states that, Ex.D.1 is issued by his
Auditor on 21.02.2015. He states that he intimated the complainant orally
about the defective materials though not through the written notice. He
volunteers that the Debit Note also includes the raw material amount lying
with the complainant, so also the amount payable by the complainant for
not supplying the goods in time. He further denies that RTGS payment
of Rs.2,50,000/- made by him is the previous balance payable by him to
the complainant and that it is not pertaining to the cheque amount. He
14 C.C.No.43995/2010
further denies that he had purposely stopped the payment after issuing the
alleged cheque.
19. Learned counsel for the complainant submits that the
accused towards balance amount of Rs.4,00,000/- out of the work order
pertaining to the bulk of 11088 pieces of ladies top issued the disputed
cheque for Rs.2,50,000/- promising further to pay the remaining balance
amount within 15 days. When the cheque is presented for encashment, it
is dishonored for the reason "payment stopped" as instructed by the
accused. The accused issued the said cheque towards part of legally
enforceable debt/liability which came to be dishonored at the instruction of
the accused himself, and, therefore, the accused having failed to make
payment inspite of its notice within the mandatory time, committed the
alleged offence. Thus, learned counsel for the complainant submits that
the case against the accused is proved beyond reasonable doubt.
20. On the other hand, learned counsel for the accused submits
that there is excess amount as per the account extract produced by the
accused paid by the accused to the complainant by 08.10.2009. He
submits that from the ledger account maintained by the accused, it is on
record that the accused paid totally a sum of Rs.9,50,000/- through
Canara Bank on different dates commencing from 07.09.2010 till
15 C.C.No.43995/2010
08.10.2009 which is an admitted fact. Thus, Rs.53,404/- is excess
amount paid by the accused towards the invoices namely Ex.P.11 and
Ex.P.12. Thus, the accused is not at all liable or was in due to the
complainant as on 08.10.2009, or 22.10.2009. Admittedly, the date of
cheque is 22.10.2009. Thus, the complainant had excess amount lying
with him belonging to the accused as on the date of the cheque. The
work order as per the complaint averments amounted to Rs.7,20,720/-
and out of it admittedly, the accused had paid Rs.3,20,000/- . These are
the admitted facts. In addition to that, as contended by the complainant
the cheque in question had also been issued by the accused to the
complainant. He further submits that Rs.2,50,000/- namely the cheque
amount as per Ex.P.1 has been paid by the accused by way of RTGS on
22.10.2009 at the request of the complainant himself. Since the cheque
amount is paid, the accused was justified to stop payment of the disputed
cheque which was promised to be returned to him by the complainant .
However, without returning the cheque the complainant misused it .He
further submits that in view of the unsettled running account maintained
between both the parties, the accused is not liable to pay any due to the
complainant in view of the admitted facts. He submits that advance
payment of Rs.3,20,000/- and RTGS payment dt.22.10.2009 of
Rs.2,50,000/- are the admitted facts. The case of the complainant which
16 C.C.No.43995/2010
is based upon Ex.P.13 if compared with the amount paid by the accused
exceeds Rs.9,00,000/- as against Ex.P.13 which is figured at
Rs.7,20,720/-. The disputed amount namely the cheque amount so also
the disputed balance amount if are added to the admitted amount, the
total comes to Rs.9,70,000/- which exceeds the amount shown in
Ex.P.13. From the Ledger Extract produced by the accused, it is evident
that the accused paid Rs.3,00,000/-, Rs.2,00,000/-, Rs.1,00,000/-,
Rs.3,00,000/- and Rs.50,000/- through Canara Bank respectively on
07.09.2009, 12.09.2009, 15.09.2009, 06.10.2009 and 08.10.2009. Thus,
there is excess amount of Rs.53,404/- paid by the accused against
Ex.P.11 and Ex.P.12. Thus, as on 08.10.2009, the accused was not at all
due to the complainant, so also on 22.10.2009 namely the date of cheque.
He submits that the cheque amount is again paid by the accused through
RTGS on 22.10.2009, as requested by the complainant himself. The
unsettled running account in the sense pertains to various goods, raw
materials , rejected goods, defective goods etc lying with the complainant
during the course of business and value of the same are to be accounted
for. That is what the demand notice is suitably replied by the accused. He
further submits that there is about 2 months gap in Ex.P.1 and Ex.P.13.
He further submits that Ex.P.13 is the invoice dt.12.12.2009 which is
subsequent to the date of cheque - Ex.P.1. That itself shows that the
17 C.C.No.43995/2010
story made by the complainant is a cooked up story. There is no nexus
between the cheque, demand notice when viewed from any angle. On the
other hand the cheque amount is already paid through RTGS and the
alleged invoice is much later to the cheque in question. Further, the
transaction is commercial in nature which requires the books of account
maintained during the course of business, without which there cannot be
any conclusion about the presumption by virtue of Ex.P.1. With malafide
intention, the alleged cheque was presented two times in a gap of 4
months and the reason shown for both occasion is one and the same.
The transaction is civil in nature and therefore, the complaint is liable to be
dismissed.
21. The case of the complainant is totally based upon the invoice
Ex.P.11 to Ex.P.13. Though the complainant is an income tax assessee,
no documents pertaining to the relevant period are produced . According
to PW 1 the last transaction that took place between both the parties was
during October, 2009. Neither the Sales Tax Returns nor the Income
Tax Returns relevant for Ex.P.11 to Ex.P.13 are produced by the
complainant . At the same time PW 1 in cross examination admits RTGS
payment dt 22.10.2009 made to him by the accused. In cross examination
of DW1 on the other hand, the complainant makes suggestion that RTGS
18 C.C.No.43995/2010
payment of Rs.2,50,000/- made by the accused is previous balance
payable by the accused. Thus, having admitted RTGS payment, there is
onus upon the complainant to show that admitted RTGS payment
dt.22.10.2009 is not pertaining to the present transaction. Admittedly as
brought on record the nature of transaction between both the parties is
through running account. DW1 denies that said amount is previous
balance payable by him. On the other hand it is the explanation of DW1
that he had paid that amount after issuing the cheque as the complainant
had requested him to pay through RTGS due to some urgency. Thus,
there is onus upon the complainant to explain the payment made by the
accused on 22.10.2009. It is his case, the cheque is dt.16.10.2009.
Further, the alleged invoice - Ex.P.13 is dt.12.12.2009 which is raised after
two months of the alleged cheque dt.16.10.2009. According to the
complainant the accused was in due of Rs.7,20,720/- in respect of bulk
quantity of 11088 pieces as per work order. The said invoice itself is
dt.12.12.2009. As per the documents produced by the complainant
himself, there are no averments made by the complainant in the
complaint about Ex.P.11 and Ex.P.12. Even nothing is stated by PW 1 in
the Sworn Statement about Ex.P.11 and Ex.P.12. However, in the
chief examination, it is the case set forth by the complainant through
PW1 that the due amount of Rs.4,00,458/- is arrived at including
19 C.C.No.43995/2010
Ex.P.11 to Ex.P.13 after deducting the amount of Rs.12,17,858/- paid by
the accused. Thus having kept quite in the complaint and the sworn
statement about Ex.P.11 and Ex.P.12, the complainant comes up with a
story that the amount payable by the accused includes the amount
pertaining to Ex.P.11 and Ex.P.12 apart from Ex.P.13. Even in the
demand notice this story which is deposed by PW 1 in the chief
examination regarding Ex.P.11 and Ex.P.12 is not narrated so as to make
the accused aware of the necessary information. It is the evidence of
PW 1 that the complainant supplied the goods to the accused through
one Harish Shetty. Out of the total amount of Rs.16,18,316/- according to
PW 1, the accused paid Rs.12,17,858/- as per three invoices and
balance amount is approximately Rs.4,00,000/-. Ex.P.11 pertains to
05.09.2009 while Ex.P.10 to 05.10.2009. The date of cheque is
16.10.2009. Thereafter, Ex.P.13 pertains to 12.12.2009. At one
instance, it is the case of the complainant that the amount shown in
Ex.P.13 pertains to bulk of 11088 pieces and at another instance, it is his
case that out of three invoices, the accused was liable to pay
approximately Rs.4,00,000/- and that the accused issued the alleged
cheque towards part payment of the same. The question arises here to
see what is the nexus between the alleged cheque which is dt.16.10.2009
and Ex.P.13, the invoice which is dt.12.12.2009. As regard Ex.P.11 and
20 C.C.No.43995/2010
Ex.P.12 , the complainant has not produced any thing on record except
those invoices as to how the figure of Rs.4,00,000/- to be due by the
accused came to be calculated. When admittedly there is running
account between both the parties and when the complainant impliedly
admits the same, then there should be account maintained for it in the
form of addition and deduction. Except the invoice, nothing is produced
by the complainant as to how approximately amount of Rs.4,00,000/-
became due to be payable by the accused. As on the date of cheque,
there is nothing on record to show that the cheque amount was the
alleged debt payable by the accused. This is because Ex.P.13 which is
the material document pertaining to the alleged bulk is subsequent to the
date of cheque i.e after a gap of about 2 months of the date of cheque.
The question is whether the complainant is able to establish that the
cheque amount became due as on 12.12.2009 assuming that the cheque
was issued for security purpose. Even for the same the complainant
simply relies on Ex.P.13, the invoice without production of any convincing
material as to how the cheque amount shown in prior dated cheque
became due to be payable by the accused on 12.12.2009. At the same
time PW 1 admits the RTGS payment dt.22.10.2009 and the evidence of
DW 1 that he had paid the said amount at the request of the complainant
becomes appreciable here in the circumstance. If that fact is
21 C.C.No.43995/2010
considered, Ex.P.13, the invoice becomes irrelevant in view of the
allegation made in the complaint. In cross examination of DW1 , the
complainant himself makes suggestion that Ex.D.1 indicates both
amount pertaining to Ex.P.11 and Ex.P.12 and so also Ex.P.13. As per
Ex.D.1, the payment is made only through Canara Bank account. As
regards DW1, the Debit Note in Ex.D.1 shows the balance payable by the
complainant to the accused. He denies that the accused himself is liable
to pay the amount shown at Debit Note as, balance to the complainant .
According to DW 1 he paid Rs.12,00,000/- to the complainant and he
denies that he is liable to pay the alleged amount. Another suggestion is
made in the cross examination of DW 1 that there was discussion held
between both the parties and as per the discussion, the accused had
agreed to pay Rs.4,00,000/- to the complainant . However, this
suggestion is denied by DW1. This suggestion is also devoid of the details
when those discussions were held and what was the terms and
conditions of the same. Again, this is a new story made by the
complainant during the cross examination of DW1. At the same time it is
the suggestion made by the complainant that RTGS payment allegedly
made is previous balance payable by the accused to the complainant.
This is not at all the case of the complainant when seen through the
pleading made in the notice and the complaint.
22 C.C.No.43995/2010
22. On the other hand when viewed from the angle of the accused,
there is onus upon the complainant to show that Ex.D.1 and Ex.D.2
namely the ledger extracts are falsified. The complainant makes
suggestion that the accused is liable to pay the amount shown against
the debit note in Ex.D.1 which is denied by DW 1. As against this no
adverse material is placed by the complainant in support of the said
suggestion showing the liability of the accused in respect of the said
debit note shown in Ex.D.1. On the other hand it is the evidence of DW 1
that the said debit note pertains to the balance payable by the
complainant to the accused. This is one aspect. Ex.D.1 and Ex.D.2 as
argued by the counsel for the accused are to be looked into having
regard to the principles of preponderance as strict proof of the case of the
accused showing the circumstances is not required. It is sufficient if the
accused shows that the case of the complainant is false in view of the
circumstances established by the accused by principles of preponderance
by probability.
23. No doubt DW1 states that Ex.D.1 includes the debit column
which shows the payment made by the accused as well as the balance
payable by the complainant to the accused. Admittedly, Ex.D.1 and
23 C.C.No.43995/2010
Ex.D.2 refers to a running account between the parties. What is shown in
Ex.D.1 as payment made by the accused reflects in Ex.D.2 namely the
ledger extract pertaining to Canara Bank. Similarly, the credit column in
Ex.D.1 refers to the invoice amount payable by the accused. Ex.D.1
refers to the material dt.12.12.2009 against which an amount of
Rs.7,20,720/- is shown as credit. Prior to it there is debit note
dt.17.11.2009 as per Ex.D.1 which is the amount payable by the
complainant to the accused including which the amount shown on
12.12.2009 is shown as credit payable by the accused. Similarly, the
word shown as payment in Ex.D.1 refers to the payment made by the
accused. Even this also reflects in the ledger extract pertaining to
Canara Bank. Thus from Ex.D.1 on 22.10.2009, 8.10.2009 and
6.10.2009 there are payments made by the accused which are the
material dates according to the complainant . Thereafter on 17.11.2009
it appears that there existed a debit note which refers to the due of the
complainant payable to the accused. It is pertinent to note that the date
of cheque is in between these transactions i.e on 16.10.2009. Now, the
onus is upon the complainant to show that how approximately
Rs.4,00,000/- became due payable by the accused as on 16.10.2009.
As per the case established by the accused on 8.10.2009, excess amount
was lying with the complainant and again the cheque dt.16.10.2009 came
24 C.C.No.43995/2010
to be issued. If viewed from this angle, admitted fact that the accused
paid on 22.10.2009 by RTGS to the complainant becomes relevant to
consider. To show that it is previous balance payable by the accused, the
complainant has not produced anything on record. Since RTGS payment
which is subsequent to the date of cheque within a span of one week paid
to the complainant is an admitted fact by application of principle of
preponderance, it is necessary to hold that the accused had paid the
cheque amount through RTGS on 22.10.2009. Apart from this as per the
case of the accused an excess amount of Rs.53,404/- as against Ex.P.11
and Ex.P.12 was lying with the complainant. Then, there is serious onus
upon the complainant as to how the calculation is made that the accused
is liable to pay approximately Rs.4,00,000/- towards balance. The
question is whether the complainant is able to discharge this onus shifted
upon him.
24. Since the complainant has not produced any documents as to
how the due amount payable by the accused is arrived at, Ex.D.1 at this
stage requires to be scrutinized in view of the arguments advanced by
the accused. From the Ledger Extract - Ex.D.1, it appears that the
accused paid Rs.9,50,000/- through Canara Bank commencing from
07.09.2009 to 08.10.2009 which is evident from Ex.D1. Thus on
08.10.2009, excess amount of Rs.50,000/- was lying with the
25 C.C.No.43995/2010
complainant. It is also an admitted fact that on 22.10.2009, the
complainant had received Rs.2,50,000/- through RTGS. Similarly
advance payment of Rs.3,20,000/- is also admitted. As against this there
is no material placed by the complainant to over come the payments
shown as made as per Ex.D.1. If it is the case of the complainant that the
accused is liable to pay the cheque amount as on the date of the cheque,
there is onus upon the complainant to establish the same as against
Ex.D.1 and Ex.D.2 that are produced on record. On the other hand, it is
the improved case of the complainant that RTGS payment dt.22.10.2009
is the previous balance, payable by the accused. Even for the same,
there is no material placed by the complainant, but, the complainant
simply relies upon the alleged cheque which is much prior to the alleged
invoice which according to the complainant is payable by the accused.
No nexus is shown between Ex.P.1 and Ex.P.13 and so also between
Ex.P.13 and Ex.D.1. The payments made by the accused are reflected in
Ex.D.2 which goes to show that the complainant has failed to show the
existence of legally enforceable debt as on the date of the alleged
cheque.
25. Admittedly as pleaded by the complainant apart from the
cheque amount, there is still balance of Rs.1,50,000/- payable by the
26 C.C.No.43995/2010
accused. Even it is also not established except the bare statement
made by PW 1 in his evidence. Therefore, the defence of the accused
that the cheque amount is paid by him through RTGS on 22.10.2009
becomes appreciable having regard to the circumstances of the case.
Thus, there is no material to accept the case of the complainant that the
cheque is issued towards partial payment of the due amount. There is
no material placed by the complainant to over come Ex.D.1. Further, the
date of cheque is much prior to the date of the invoice. Even the
complainant is also not able to establish that the cheque amount
became due on the date of invoice- Ex.P.13 and also not adduced any
cogent or convincing material. Admittedly, the complainant is a statutory
body bound to maintain the books of account and in view of the specific
case of the complainant , the inspection of books of account becomes
necessary in circumstances of the case. However, the complainant has
not produced any thing pertaining to it. Thus, the defence established by
the accused in the circumstances of the case will have to be accepted
against the case of the complainant which is devoid of any cogent
material. Thus, it cannot be said that the complainant is able to prove
the alleged guilt beyond reasonable doubt against the accused. Having
admitted the payment dt.22.10.2009, the complainant was not at all
expected to present the alleged cheque for encashment. By virtue of
27 C.C.No.43995/2010
payment dt.22.10.2009, the alleged liability if at all seized to exist and no
case is attracted under Sec.138 of N.I.Act as made out by the
complainant against the accused. Accordingly, I answer the point for
determination in the "Negative".
For the aforesaid reasons, I proceed to pass the following:-
ORDER
Acting under Section 255 (1) of Cr.P.C, accused are hereby acquitted of offence punishable under Section 138 of Negotiable Instruments Act 1881.
The bail bond stands cancelled.
(Dictated to the Stenographer transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 15th day of October, 2015).
(Shashikant B.Bhavikatti) XXV A.C.M.M., BANGALORE.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri.Ashoek K.Taneja.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P1 : Cheque.
Ex.P1(a) : Signature of the accused.
28 C.C.No.43995/2010
Ex.P2 &3 : Bank Endorsements.
Ex.P4 : Office copy of the legal notice.
Ex.P5&6 : Postal Receipts.
Ex.P7 : Under Certificate of Posting.
Ex.P8&9 : Postal acknowledgements.
Ex.P10 : Reply Notice.
Ex.P11-13 : Invoices.
Ex.P14 : Letter.
Ex.P15&16 : Work Orders.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
DW1 : Aditya Banthia.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
Ex.D1 : Ledger Extract.
Ex.D2 : Statement of Account.
(Shashikant B.Bhavikatti) XXV A.C.M.M., BANGALORE.29 C.C.No.43995/2010
DT.15.10.2015 For Judgment:
ORDER Acting under Section 255 (1) of Cr.P.C, accused are hereby acquitted of offence punishable under Section 138 of Negotiable Instruments Act 1881.
The bail bond stands cancelled.
XXV A.C.M.M., BANGALORE.