Bangalore District Court
Limited vs Having Its Reg on 20 July, 2021
BEFORE THE COURT OF XXIV ADDITIONAL SMALL CAUSES
JUDGE AND THE MOTOR ACCIDENT CLAIMS TRIBUNAL &
A.C.M.M. (SCCH-26) AT BENGALURU
DATED THIS THE 20th DAY OF JULY 2021
PRESENT: SRI.R.MAHESHA. B.A.,L, LLB.,
XXIV ADDL. SCJ &
ACMM & MEMBER - MACT
BENGALURU.
1. Sl. No. of the Case CC.No.5512 of 2018
2. The date of 29-11-2018
commencement of
evidence
3. The date of closing 23-03-2021
evidence
4. Name of the 1. M/s S.V.Concrete Products Private
Complainant Limited, Sy.No.72 and 78/1,
Koppa village, Hulimangala post,
Jigani hobli, Anekal Taluk,
Bengaluru district.
2. Nagaraja V. S/o Venkatappa,
Managing Director of M/s
S.V.Concrete Products Private
Limited, Koppa(village), Jigani (Hobli),
Hulimangala (post), Anekal (Tq),
Bengaluru-562106.
3. Mr.Manjunath C S/o Chandrappa M,
Rept. By its authorized person of M/s
S.V.Concrete products private
Limited, Aged about 27, residing at
No.21, 1st cross, KSRTC colony,
Anekal, Bengaluru-562106.
(By Sri.N.A.-Advocate)
5. Name of the 1. M/s Sri.Krishna Shelters Pvt., Ltd.,
2 C.C.No.5512 OF 2018
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Accused having its reg., office at No.59,
Sri.Krishna Sudha building, West
Anjaneya temple street,
Opp.Basavanagudi main road,
Gandhi Bazar, Bengaluru-560 004.
2. Sri.Raghavendra, Rept., by its
Managing Director of M/s Sri.Krishna
Shelters Pvt., Ltd., office at No.59, West
Anjaneya temple street,
Opp.Basavanagudi main road,
Gandhi Bazar, Bengaluru-560 004.
(By Sri.G.S.-Advocate)
6. The offence U/s.138 of the Negotiable Instruments Act
complained of
7. Opinion of the Accused not found guilty
judge
JUDGMENT
The complainant filed this complaint Under Section 200 of Cr.P.C against the accused alleging that the accused has committed the offence punishable Under Sec.138 of the Negotiable Instruments Act, 1881. (In short for N.I.Act)
2. The brief facts of the complainant case is as under:
The accused had placed orders for supply of ready mix concrete of M25 and other grades concretes to complainant company and accordingly, the ready mix concrete was supplied 3 C.C.No.5512 OF 2018 SCCH-26 to various sites of the accused company as and when it required by them and raised the bill for a sum of Rs.37,00,550/- and that on account of supply of ready mix concrete the accused company became liable to pay the aforesaid sum of Rs.37,00,550/- to the complainant and accordingly, the accused issued a cheque for a sum of Rs.37,00,550/- bearing cheque No.000376 drawn on Bank of Baroda, Bengaluru dt.5-7-2017. That the said cheque was presented to the bank by the complainant company, but the said cheque was returned back with the memo Insufficient funds. Later complainant approached the accused with regard to the dishonour of cheque and the accused requested the complainant company to present the same for second time and as per their request, the complainant company presented the said cheque for second time on 21-7-2017, but the said cheque was returned with a memo Account Blocked. That the complainant company issued legal notice to the accused. That the accused failed to make the payment of Rs.37,00,550/- within 15 days of the receipt of the notice. Hence, filed this complaint. 4 C.C.No.5512 OF 2018
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3. Initially the present case presented before XXI ACMM, Bengaluru on 11-10-2017. After filing of this complaint, case was registered as P.C.R. and sworn statement of the complainant was recorded. Thereafter cognizance was taken and registered in Crl.Reg.No.III and summons issued to the accused. Thereafterwards learned counsel for complainant filed memo stating that in view the notification dated 20-11-2017 of CMM, Bengaluru, the matters pertaining to company be placed before 24th Addl.Small Cause Judge and 22nd ACMM, Small Cause court hall 26 (SCCH-26) Bengaluru. Hence in view of the jurisdiction point, this case placed before SCCH-26 from XXI ACMM on 29-09-2018. Again this court ordered as PCR NO.4761/2018. After recording sworn statement of complainant, thereafter cognizance was taken and registered in Crl.Reg.No.III and summons issued to the accused. In response of summons, accused appeared through his counsel and got enlarged on bail. The plea was recorded, read over and explained to accused, he pleaded not guilty and claims to be tried. Hence the case is posted for complainant evidence.
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4. In order to establish its case, authorized person of the complainant company himself examined as PW-1 and got marked 1 to 59 and closed his side.
5. The Managing Director of defendant got examined himself as DW-1 and got marked Ex-D1 and 1(a).
6. Heard oral arguments from both counsel.
7. The learned complainant counsel has produced the judgment copy:-
1. Copy of the Crl.App.838/2011 SCC.27 of General laws Act The learned counsel for the accused has produced the reported judgment of the Hon'ble Supreme Court of India in :
III (2009) BC 659 (SC)
8. Upon perusal of the material placed on record, the following points arise for my consideration:-
POINTS
1. Whether the complainant proves that the accused had issued cheques in question in discharge of the legally recoverable debt as contended by him?6 C.C.No.5512 OF 2018
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2. Whether complainant proves that the accused has committed the offence punishable under Sec.138 of NI Act?
3. Whether the complainant is entitled for the relief as prayed in the complaint?
4. What order?
9. My answer to the above points is as follows :-
Point No.1 to 3 : In the Negative Point No.4 : As per final order for the following :-
REASONS
10. POINT NO.1 to 3 :- Since these points are interlinked and to avoid repetition they are taken together for common discussion. Before peeping the disputed facts it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the complainant company and accused company are the companies incorporated as under provision of law. The accused and complainant company having business transaction. The 7 C.C.No.5512 OF 2018 SCCH-26 disputed cheque is belongs to accused company, it bears signature is also accused. The disputed cheque on presentation for encashment through his banker and same came to be returned unpaid with a banker's shara "Insufficient of Funds" and later upon the request of accused re-presented the said cheque for encashment, the same came to be returned with a memo "Account Blocked". The complainant caused legal notice through their advocate demanding for the payment, there is no document from complainant side to show legal notice had been served on accused.
11. With above admitted facts, now the facts in issue are analyzed, as already stated the accused has denied the entire case of the complainant company as to commission of the offence punishable under section 138 of NI Act. While recording their plea for the said offence and also accused has denied the incriminating circumstance found in the evidence of the complainant. At the time of recording of his statement under section 313 of Cr.P.C., The accused mainly denied the claim of complainant company, on going through the cross- examination of PW1, it is clear that in addition to the total 8 C.C.No.5512 OF 2018 SCCH-26 denial of the case of the complainant company, the accused has specifically contended that the transactions as between the complainant and accused are true and correct, but the complainant had supplied sub standard material, which were not on par with requirements of the accused/purchase orders. Earlier transactions what so ever, there were no dues. It was on 05-02-2015, he had placed an order vide a purchase order dt.05-02-2015 as per Ex-D1 wherein a post dated cheque was issued by the accused to the complainant, to accommodate him in terms of his business as the said purchase order also was not maintained and materials were not supplied properly. The accused company had to conclude the work on their own/ with better arrangements. When accused demanded for the return of the cheque, the complainant firm pleaded their innocence with a say that the same is lost and would provide when it was found. Instead of doing so, the instant case has been filed as against the accused company. The complainant, has silent about Ex-D1 terms and conditions. Legal notice was never served on the accused as contemplated under law. The complainant has got cheque and filled particulars on 9 C.C.No.5512 OF 2018 SCCH-26 cheque and setup the instant case with frivolous allegations on existence of the liability/issuance of cheque and thereafter commission of an offence by the accused. This claims of complainant is utterly false. The complainant is played fraud on the accused to get illegal benefit. Therefore, on the above objections the accused seeking the present complaint is not maintainable and liable to be dismissed in limine.
12. It is needless to say that the proceeding under section 138 of NI Act is an exception to the general principle that the accused is presumed to be innocent until the guilty is proved beyond all reasonable doubt. In the proceedings initiated under section 138 of NI Act, proof beyond all reasonable doubt is subjected to presumption envisaged under section 139 of NI Act. Once the requirement of Sec.138 of NI Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged under Sec.139 of NI Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of NI Act. In the ruling rendered by Hon'ble Apex Court in the case of 10 C.C.No.5512 OF 2018 SCCH-26 Rangappa V/s Mohan reported in AIR 2010 SC (1898) by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishnajanardhana Bhat V/s Dattareya G. Hegde reported in AIR 2008 SC (1325) it was held that "existence of legally recoverable debt or liability is a matter of presumption under section 139 of NI Act". The Hon'ble Apex Court disapproved the principle laid down in Krishnajanardhana Bhat case that "initial burden of proving existence of the liability lies upon the complainant". In the case of Sri B.H. Lakshmi Naryana V/s Smt. Girijamma reported in 2010(4) KCCR 2637 it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further the Hon'ble Apex Court in Crl. Appeal No.803/2018 Krishna Rao V/s Shankare Gowda reported in 2018(7) SCJ 300 reiterated the above principle further as provided under Sec.118 it is to be presumed that the cheque in question was issued for consideration on the date found therein.
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13. In the light of the rival contention of the parties at the outset it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of NI Act as contended. In order to prove the case of the complainant, One Sri.Manjunath C.-authorized person has examined as PW-1 and he reiterated the complaint averments in his examination- in-chief by way of affidavit and got documents marked as Ex- P1 to 59. On the other hand, accused company MD one Raghavedra K.A. examined as DW-1 and got marked Ex-D1 and D1(a). In addition to that the complainant has produced Ex-P1-Cheque, Ex-P1(a)-Signature, Ex-P2- Bank memo, Ex-P3- legal notice, Ex-P4 -Postal receipt, Ex-P5-Complaint to post master, Ex-P6-Board resolution, Ex-P7-Bank challan, Ex-P8 to 13-Purchase order, Ex-P14-Confirmation of balance, Ex-P15 to 17-Ledger statement, Ex-P18 to 58-Tax invoices and Ex-P59- 65(B) application.
14. In the light of rival contention of the parties, at the outset it is to be determined as to whether the complainant had complied with all the requirements of Section 138 of NI Act as 12 C.C.No.5512 OF 2018 SCCH-26 contended. In order to prove the case, the complainant company authorized person reiterated the complaint averments in his sworn statement by way of affidavit which itself is treated as examination in chief in view of the decision of Hon'ble Apex court reported in 2014(A) SCC 590 Indian Bank Association and others Vs Union of India and others (WP civil NO.18/2013. In addition to that, the complainant has produced cheque dated 5-7-2017, bank endorsement dt.4-9-2017, office copy of the legal notice dt.12-09-2017, letter dated to the post master dt.4-10-2017, purchase orders in Ex-P8 to 13 and Ex-P18 to 58 and balance confirmation letter dt.12-4-2016, ledger A/c statement Ex-P15 to
17. as already stated it is admitted fact that Ex-P1 cheque belongs to the accused company and same is signed by Managing Director of accused company. Ex-P2 bank endorsement reveals that Ex-P1 cheque was presented for encashment by the complainant company through his banker Bank of Baroda, Gandhinagar service branch, Bangalore which was dishonoured on 4-9-2017 for the reason " A/C blocked situation covered in 2125". Further on perusal of Ex-P3 and 4, after dishonour of cheque as found in ex-P2, the complainant got 13 C.C.No.5512 OF 2018 SCCH-26 issued legal notice dt.12-09-2017, to the accused by RPAD and same was Unserved on accused. The complainant gave complaint on 4-10-2017 to Post master, CMM court, Bangalore regarding non receipt of acknowledgment due and RPAD letter reference No.RLADARK 932576068IN dt.12-09-2017. The said letter duly received by the Sub post master, CMM court complex, Bangalore-01 on 6-10-2017. But complainant did not produced any explanation given by sub post master, CMM court complex, Bangalore. The complainant presented complaint on 21-01-2017 before XXI ACMM, Bangalore. On perusal of these documents, it is clear that the complainant had presented the cheque for encashment within its validity, got issued statutory notice in time and presented the complaint within the prescribed period, but there is no document from complainant side regarding showing statutory notice served on accused as per law. So it is clear that, the complainant complied statutory requirements of presenting cheque, issuing notice and presenting complaint well in time, but he did not complied Section 138(b) of NI Act. 14 C.C.No.5512 OF 2018
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15. Further the main defence of the accused is that the legal notice has been not served on the accused as contemplated U/s 138(b) of NI Act. Admittedly Ex-P3 -legal notice sent through RPAD, but acknowledgment card not yet received. The complainant gave complaint to the concerned post master on 4- 10-2017, but concerned post master did not gave any intimation regarding whether reference subject RPAD number as per Ex- P5 had been served or not. The case of the accused that he did not received any legal notice before institution of this complaint. He aware about the case only after receipt of summons by the court. The learned complainant counsel asking question to DW-1 about registered address of accused company during cross examination, he clearly admitted that accused company is private limited company and it registered under companies Act, the accused company having company in their registered address i.e., West Anjaneya temple street, Basavanagudi, Bangalore. On perusal of Ex-P3 and 4, it reveals that before posting letter the complainant company stated in Ex-P3 address of the accused company that M/s Sri.Krishna Shelters Pvt., Ltd., Sri.Krishna Sudha having its registered office at West Anjaneya 15 C.C.No.5512 OF 2018 SCCH-26 temple street, opposite Basavanagudi main road, Gandhi Bazar, Bangalore-04 represented by its Managing Director Sri.Raghavendra. DW-1, in his affidavit he stated that his residential address. He is silent about his company registered address. DW-1 in his cross examination clearly stated that his company building renovation was carried during on 12-09-2017 his company regular work had carried in another address i.e., No.760, 1st main, Banashankari 3rd stage, Bangalore. Further he stated that his company officials i.e., company administrator informed to post officials regarding they temporarily shifting company work in another address as stated by DW-1. further he stated during cross examination that he and on behalf of him company officials have received some postal letters in the registered address of company. further DW-1 admitted that he personally received RPAD letters in registered address of the company, but he denied about received Ex-P3 on 12-09-2017. It is not the case of the accused that notice was sent to the wrong or incorrect address. This being the fact, when the notice was notice was sent to the correct address of the accused, it is duty of the accused to receive registered post. Further it is also 16 C.C.No.5512 OF 2018 SCCH-26 noticed that summons sent by this court to the same address of the accused was also found to be served on the accused on the same address. Mere denial of service of notice is not sufficient to disbelieve the service of notice on the accused. since the registered notice was sent to registered address of accused company, but accused intentionally did not received the same.
16. As per Section 138(b) of NI Act, the complainant company sent a legal notice through RPAD to last known address of accused. In the instant case, the complainant sent a legal notice as agreed address of the accused as per Ex-P3. The said legal notice duly posted through RPAD for such proof, Ex-P4 postal receipt produced. Due to post office technical reasons, complainant did not received acknowledgement card. The complainant gave complaint to postal authority well within time. But the postal officials did not gave any endorsement The argument of the accused is that, it is burden on complainant to prove that the complainant has complied pre-requisits of elements of Section 138 of NI Act and as per Section 27 of General Clause Act and Section 114 of Indian Evidence Act. 17 C.C.No.5512 OF 2018
SCCH-26 According to Section 27 of General Clause Act, meaning of service by post where any (Central Act or regulation made after the commencement of this Act authorizes or require any document to be served by post, whether the expression served or either of the expression give or send or any other expression is used, then unless a different intention appear, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, unless the contrary is proved to have been effected at the time at which letter would be delivered in the ordinary course of post. In the backdrop, perused the entire cross examination of DW-1, he stated his residential address as No.445, 30, 3rd cross, Jayanagara 4th block, Bangalore and company registered address shown as per Ex-P3. DW-1 intentionally stated in his cross examination that on 12-07-2017, his regular registered address of company they had renovation of building due to this he did not received disputed article, but accused did not placed any document to show or believe his words on 12-07-2017 his company was under renovation they temporarily shifted to another address, but DW-1 himself admitted during cross 18 C.C.No.5512 OF 2018 SCCH-26 examination that he and his company officials received letters in the registered address of company the accused himself personally received some RPAD letters. So the very admission of the accused is sufficient the complainant knew the address of the accused company and still it is working in the same address mentioned in the cause title of the complaint. In view of the principle laid down by Hon'ble Supreme Court of India in case of CC Alavihaji Vs Palapetty Mohammad and others in this case, 3 judges bench clarified that " mandatory notice is sent by registered post by correctly addressing drawer of the cheque, mandatory requirement of issue of notice is complied with ". So as per section 27 of General Clause Act, giving notice last known address of the accused is sufficient to comply the mandatory provision of Section 138 (b) of NI Act. So arguments advanced by the accused counsel and the contention took by the accused regarding non service of legal notice is bad for filing this complaint is not sustainable. The accused himself admitted during cross examination, he having company in address mentioned in the cause title. The accused is working as Managing Director of M/s Sri.Krishna Shelters Pvt., Ltd.,. So 19 C.C.No.5512 OF 2018 SCCH-26 reversal burden lies on accused to prove that the firm was not in the address mentioned in the cause title of the complaint. To the contrary, the accused himself admitted his company was located in the same address. Therefore the accused himself explained for what reason the postal authorities have sent back the letter issued by the complainant on 12-07-2017 not by complainant. So in view of the above discussion, this court came to conclusion that Ex-P3 served on accused, but he did not reply and he took false contention by placing false materials.
17. Therefore on conjoint reading of the entire oral and documentary evidence, there remains no doubt that the complainant had complied with all the requirements of Section 138 of NI Act. This being the fact, as discussed earlier, in the light of dictum of Hon'ble Apex court, it goes without saying that the presumption available U/s 139 of NI Act is required to be drawn and shall presume that the accused had issued the cheque as per Ex-P1 towards discharge of legally recoverable debt. It is also to be presumed that cheque was issued for consideration on the date as mentioned therein. 20 C.C.No.5512 OF 2018
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18. It is well settled principle of law through catena of decisions that though the statutory presumptions available U/s 118 and 139 of NI Act are mandatory in nature, they are rebuttable one. It is needless to say that, when the complainant proves the requirements of Section 138 of NI Act, the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the presumptions with all preponderance of probability with clear, cogent and convincing evidence though not beyond all reasonable doubt. The accused has to make out probable defence by producing, convincing acceptable evidence and thereafter only burden shifts on the shoulder of the complainant. It is also well settled law that to rebut the presumption, the accused can also rely upon presumptions available under the evidence Act. It is also set in rest that in order to rebut the presumption, it is not imperative on the part of the accused to step into the witness box and he may discharge his burden on the basis of material already brought on record and on the basis of the fact elicited in cross examination of the complainant. It is also equally true that, if the 21 C.C.No.5512 OF 2018 SCCH-26 accused places such evidence, so as to disbelieve the case of the complainant, then, the presumptions stand rebutted. This view is also supported with the decisions of Hon'ble Apex court reported in 2006(3) SCC (Crl) 30-Tamilnad Merchantile Bank Ltd., Vs M/s Subbaiah Gas Agency and others ILR 2009(2) 1633-Kumar Exports Vs Sharma Carpets. AIR 2008 SC 1325-Krishna Janardhan Vs Dattatreya G.Hegde 2013 SAR (CRI) 373 Vijay Vs Lakshman and others and AIR 2010 SC 1898-Rangappa Vs Mohan-AIR 2008 SC 278 John K.John Vs Tom Verghees and another. 2009 KCCR(1) 283=2009 AIR KAR (1) 565 in the case of Sridhar Narayana Hegde Vs Karnataka Bank Ltd., DON Ayengia Vs State of Assam reported in 2016(3) SCC 1. Uttam Ram Vs Devinder Singh Hudan reported in 2019(10) SCC 287. Karnataka High Court in the case of National Agricultural Marketing Federation of India Ld., Vs Disha Impex Pvt., Ltd., and another reported in 2021 SCC online KAR 25.
19. Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
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20. In view of the defence taken by the accused as against the claim of the complainant, now the evidence available on behalf of the accused is analyzed, in support of defence of accused in addition to the cross examination of complainant side, the accused himself examined as DW-1 and got marked Ex- D1 and D1(a). as per Ex-D1, purchase order entered between complainant company and accused the said purchase order date commenced from 5-2-2015. The complainant is very silent about Ex-D1. The accused questioned about Ex-D1 to PW-1 he stated that accused did not make any agreement with complainant. Further PW-1 admitted during cross examination that the complainant company supplied concrete to the accused project i.e., HAL project after receiving purchase order from accused, concrete had supplied to complainant. On careful perusal of Ex-D1, it is forthcoming that the accused placed the purchase order for concrete for their project BARC project, Vidyaranyapura, Bangalore as per site requirement approximately 804 M3 to 805M3. The said purchase order entered on 5-2-2015 with terms and conditions. As per terms and conditions No.1, a security cheque issued vide 23 C.C.No.5512 OF 2018 SCCH-26 cheque No.000376 dt.Nil Bank of Baroda, Jayanagar 3rd block branch, Bangalore for Rs.37,00550/- has been issued for the purpose of securing payments only. Further in terms No.3, the above said material should be delivered to BARC project site, Vidyaranyapura site, Bangalore. Further in terms and conditions (5) if the quality of materials is not as per standard/materials if not supplied on or before 4-3-2015, this purchase order deemed to be cancelled. Further terms and conditions Class (6) if the materials are not supplied on or before 4-3-2015 you should return the security cheque to the companies head office at Bangalore. This agreement entered between complainant and accused on 5-2-2015, the complainant company authorized person had put his signature and accepted terms and conditions of Ex-D1.
21. Now the evidence available on record with regard to the transaction as stated by the complainant is analyzed, as argued by learned counsel for complainant, PW-1 stated regarding transactions between complainant and accused company and 24 C.C.No.5512 OF 2018 SCCH-26 issuance of cheque by the accused as per Ex-P1 in complainant favour towards discharge of due amount of Rs.37,00,550/-.
22. The evidence of PW-1 and contents of legal notice and Ex-P8 to 13, Ex-P18 to 58 analyzed, it is forthcoming that as per the say of complainant, the accused company had placed orders for supply of ready-mix concretes of M25 and other grades concrete to complainant company and accordingly the ready mix concrete was supplied to various sites of accused company as and when required by them and raised the bill for Rs.37,00,550/-. So the accused company liable to pay the aforesaid sum of amount for discharge of said amount, they issued disputed cheque. Being cross examination by accused, PW-1 stated that he clearly denied the suggestion put by accused regarding accused did not entered any agreement with complainant and PW-1 admitted the complainant supplied concrete to HAL project which is carried by accused. It is found in Ex-P8 to 13 the complainant company has supplied concrete grade M20 and M25 to HAL project on 17-2-2015 and 2-3-2015, 28-3-2015, 10-1-2016. On perusal of Ex-P18 to 58, it reveals 25 C.C.No.5512 OF 2018 SCCH-26 that the complainant company supplied concrete to site address, HAL/FMD/C302/1314 construction of GSLV MK IIII, Aerospace division, HAL (BC),Bangalore. On 9-7-2015, 10-7- 2015, 17-7-2015, 30-7-2015, 31-7-2015, 1-8-2015, 6-8-2015, 7- 8-2015, 11-8-2015, 12-8-2015, 17-8-2015, 20-08-2015, 21-08- 2015, 25-08-2015, 26-08-2015, 27-8-2015, 28-08-2015, 29-8- 2015, 3-9-2015, 5-9-2015, 8-9-2015, 12-09-2015, 14-09-2015, 12-10-2015, 14-10-2015, 15-10-2015, 26-10-2015, 29-10-2015, 18-11-2015, 19-11-2015, 20-11-2015, 23-11-215, 24-11-2015, 15-12-2015, 11-01-2016, 27-1-2016, 4-2-2016, 5-2-2016, 10-2- 2016, 13-02-2016, 15-2-2016. These invoices contain invoice numbers, date, customer tin, purchase order number, mode of dispatch, vehicle no. E-sugam number, quality in cumeters, rate per cumeters, amount date and time of issue of invoice, address of the accused company, site address, total invoice amount receivers name, seal and signature. So as per above invoices, the complainant supplied concrete mix to accused company, other site address. As per Ex-D1, as agreed by them they supplied concrete as per the site requirement to BARC project site, Vidyaranyapura site, Bangalore. If the materials are not 26 C.C.No.5512 OF 2018 SCCH-26 supplied on or before 4-3-2015, the complainant should return the security cheque to the companies head office at Bangalore. Further in Ex-D1 clearly mentioned a security cheque issued vide cheque No.000376 date-Nil, Bank of Baroda, 3rd block branch, Bangalore for Rs.37,00,550/-. Has been issued for the purpose of security payments only. In the backdrop on perusal of Ex-P1, it seen that Ex-P1, it is issued in favour of complainant company for a sum of Rs.37,00550/- on 5-7-2017, cheque No.000376. It is duly signed by M.D of accused company. the security cheque number mentioned in Ex-D1 and Ex-P1 particulars are one and the same. As per the say of accused, the disputed blank cheque issued in favour of complainant on 5-2-2015 for the purpose of Rs.37,00,550/- for securing payment purpose of aforesaid amount. The receipt of the complainant company official is available on record as per Ex-D1(a). This document speaks with regard to an order placed by the accused company to the complainant for supply of ready mix concrete to a BARC site, Vidyaranyapura, Bangalore. As per the terms 6, therein the complainant was to return the said cheque if the materials are not supplied on or before 4-3-2015. 27 C.C.No.5512 OF 2018
SCCH-26 It is crystal clear that Ex-P1 was issued as a security for transaction pertaining to supply of materials at BARC site, Vidyaranyapura, Bangalore. The value of the said purchase order was the amount specified in the cheque as per the terms said therein. of the same. As per Ex-P18 to 58, the same having been supplied to a different site as per the address shown therein.
23. The accused took specific contention in his evidence and cross examination of PW-1 that, Ex-P14 was created document and bearing signature was not belongs to his company. To prove the above said facts, burden lies on complainant that the complainant company supplied concrete materials as per the requirement of accused company and as per purchase order issued by accused. In turn, they supplied concrete materials they got A/cs confirmation from accused company. The accused clearly disputed Ex-P14. In order to prove Ex-P14 contents, complainant did not chose, examine signatory of Ex-P14. Even DW-1 during his cross examination stated that he would furnish document pertaining to who are all staff working in the accused company (details of staff or particulars of 28 C.C.No.5512 OF 2018 SCCH-26 staff) in the year 2016, but he did not do so. If complainant company proves the contents of Ex-P14 by calling signatory of Ex-P14 as on the date of which issued then burden shifted on accused to show before court that the author of Ex-P14 was not belongs to his company. In the instant case, complainant failed to prove Ex-P14 contents and who was the signatory of document, when it is done on behalf of accused company, who has authorized to sign Ex-P14. So in the facts and circumstances, it is impossible to believe Ex-P14 signed by accused company official on behalf of accused. hence this court did not believe version of complainant and Ex-P14. To the contrary accused produced Ex-D1, he shows that the disputed blank signed cheque issued on 5-2-2015 for the purpose of securing payment only. Even though accused deposed before court on oath about Ex-D1, the complainant did not asked any question about Ex-D1, even did not suggested Ex-D1 is created by accused company. On perusal of entire cross examination, complainant is silent about Ex-D1. As per Ex-D1, the amount being specified on 2-5-2015. Ex-P14 created on 12-04-2016 and Ex-P1 filled the date as 05-07-2017. From the complaint 29 C.C.No.5512 OF 2018 SCCH-26 averments, one thing is clear that complainant claims amount mentioned in Ex-D1 on 05-02-2015. The complainant instead of returning the cheque, has been used and filed this case against accused. The accused had given Ex-P1 on 05-02-2015 as per terms and conditions of Ex-D1. The complainant produced Ex- P18 to 58 which were pertaining to other transactions. The accused disputed Ex-P15 to 17, they are manipulated which is their own creation and not on audited statement. To prove the contents of Ex-P15 to 17 complainant did not examine auditor of complainant company and he did not produced GST return statement of complainant company. In the absence of such material evidence, it is impossible to believe Ex-P15 to 17 contents are in order.
24. On careful analyze entire evidence and documents, it is clear that the complainant has not produced any document to show or substantiate complaint averments as on the date of issuance of cheque or prior to issuance of cheque, the complainant company and accused having business transaction was not established. The complainant produced and placed reliance on Ex-P1 and 59. On the other hand, 30 C.C.No.5512 OF 2018 SCCH-26 accused produced Ex-D1. On careful examination of Ex-D1, it depicts that Ex-P1 was singed blank cheque issued for the purpose of securing payments in favour of complainant company on 05-02-2015. This was used by complainant company by mentioning date as 05-07-2017 and presented for encashment in their bank and got dishonoured. It is burden on the complainant to establish fact with oral and documentary evidence. The accused is liable for Rs.37,00,550/- and to discharge the same, cheque in question was issued. The complainant company has to establish the guilt of the accused beyond reasonable doubt. The complainant company failed to establish the accused is liable to pay Rs.37,00,550/- as mentioned in Ex-P1. The complainant company has failed to establish ingredients of Section 138 of NI Act and also failed to prove the guilt of the accused beyond reasonable doubt. The accused is through oral and documentary evidence successful in rebutting the presumption U/s 139 of NI Act which favour of the complainant company.
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25. Considering all these aspects of this case and on perusal of evidence, lead on behalf of complainant, it does not depicts that accused is liable to pay Rs.37,00,550/- to the complainant. The documents produced by the complainant donot disclose by existence of legally enforceable debt, which is prerequisite condition for prosecuting a case U/s 138 of NI Act. Presumption U/s 139 and 118 A of NI Act cannot be extended to presume that there exist legally enforceable debt. More, so presumption they themselves are not evidence. hence viewing from any angle, complainant has failed to establish existence of legally recoverable debt. It is also trite that mere issuance of cheque without corresponding legally recoverable debt is not an offence. In the instant case also complainant company has not established the existence of legally recoverable debt. Under these circumstances, the imperative conclusion is that the accused has not committed an offence punishable U/s 138 of NI Act. This will entails in acquittal of the accused.
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26. Therefore, on going through the entire evidence and records, it clearly appear that the complainant has suppressed the real fact and come up with some facts to suit his claim on the basis of Ex.P.1. On the basis of evidence in Cross examination of the complainant as PW1, the accused in the case on hand as successfully rebutted the presumption raised in favour of the complainant u/s 138 of NI act. Even if the cheque in question i.e. Ex.P.1 was returned uncashed there is absolutely no case against the accused for the offence punishable u/s 138 of NI Act. If the totality of the evidence on record is considered, doubt arises regarding the case of the complainant. Hence, the complainant has failed to prove beyond reasonable doubt that the accused has committed any offence punishable u/s 138 of NI act. The case of the complainant creates serious doubts in the mind of court. The light of existing evidence, this court is of the considered view that the defence of the accused cannot be totally ruled out.. Therefore, the case of complainant is totally surrounded with heavy cloud and creates serious doubt. As discussed in detail, when the evidence placed before this court leads to disbelieve 33 C.C.No.5512 OF 2018 SCCH-26 the case of the complainant, then the presumption stands rebutted. Thus, considering all these aspects, this court is of the considered view that the complainant company has failed to prove points No.1 to 3 in his favour as contended. It is needless to say that when the complainant failed to prove point no.1 to 3 the complainant cannot be granted with any relief as sought for in this case. Hence, point No.1 to 3 are required to be answered in Negative and answered accordingly.
27. Point No.4: For the reasons discussed in connection with in point no.1 to 3 this court proceed to pass following :-
-: O R D E R :-
By Acting U/s 255(1) of Cr.P.C the accused is hereby acquitted for the offence punishable U/s 138 of NI Act.
The bail bond of the accused stands canceled. (Dictated to the stenographer, through online computer, thereof is corrected and then pronounced by me in the open Court on this the 20th July 2021) (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.34 C.C.No.5512 OF 2018
SCCH-26 ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW-1: Manjunath C DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex-P1- Cheque, Ex-P1(a)- Signature, Ex-P2- Bank memo, Ex-P3- Legal notice, Ex-P4 - Postal receipt, Ex-P5- Complaint to post master, Ex-P6- Board resolution, Ex-P7- Bank challan, Ex-P8 to 13- Purchase order, Ex-P14- Confirmation of balance, Ex-P15 to 17- Ledger statement, Ex-P18 to 58- Tax invoices Ex-P59- 65(B) application.
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
DW-1 : Raghavendra K.A.
DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
Ex.D1 : Purchase order
Ex.D1(a) : Signature
(R.MAHESHA)
XXIV ADDL. SMALL CAUSES JUDGE
& A.C.M.M. BENGALURU.