Karnataka High Court
M/S. National Agricultural Co-Op. vs M/S Disha Impex (Pvt.) Ltd. on 6 January, 2021
Author: H.P.Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL No.1072/2013
BETWEEN:
M/s. NATIONAL AGRICULTURAL CO-OP.
MARKETING FEDERATION OF INDIA (NAFED),
BRANCH OFFICE,
NO.8, CUNNINGHAM ROAD,
BENGALURU-560 052,
REP. BY ITS BENGALURU BRANCH MANAGER. ... APPELLANT
(BY SRI GIRIDHAR H., ADVOCATE)
AND:
1. M/s. DISHA IMPEX (PVT.) LTD.,
HAVING ITS REGD. OFFICE AT Z-17,
BASEMENT HAUSKHAS,
NEW DELHI-110 016,
REP. BY SRI NIRANJAN JAYANTHILAL.
2. SRI NIRANJAN JAYANTHILAL,
DIRECTOR,
M/s. DISHA IMPEX (PVT) LTD.,
HAVING ITS REGD. OFFICE AT Z-17,
BASEMENT HAUSKHAS,
NEW DELHI-110 016. ... RESPONDENTS
(BY SRI TRIDEEP PAIS, ADVOCATE FOR
SRI B.S. RADHANANDAN, ADVOCATE FOR R-1 AND R-2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 27.08.2013
PASSED BY THE XV A.C.M.M., BENGALURU IN C.C.NO.17750/2008
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ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I.ACT.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 23.12.2020, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment of acquittal dated 27.08.2013 passed in C.C.No.17750/2008, on the file of the XV Additional Chief Metropolitan Magistrate, Bengaluru.
2. The parties are referred to as per their original rankings before the Trial Court as complainant and accused in order to avoid the confusion and for the convenience of the Court.
3. The factual matrix of the case is that the complainant is a Central Government undertaking and had entered into a Memorandum of Understanding ('MOU' for short) on 10.03.2004 with accused No.2 to finance accused No.1 Company for procurement of Iron Ore to the tune of Rs.11.86 Crores and the complainant would fund 80% of the estimated cost subject to actual and accused No.2 would pay the remaining 20% simultaneously proportionate to the draw down. 3
4. In connection with this transaction pertaining to the MOU dated 10.03.2004, the accused had issued a cheque for Rs.2.5 Crores dated 17.05.2007. When the said cheque was presented, it was dishonoured with an endorsement "funds insufficient". Hence legal notice was issued on 26.11.2007. Inspite of service of notice, the accused did not comply the demand and hence the complainant was forced to file complaint against the accused.
5. The complainant in order to substantiate the case examined one witness Sri R. Sundararajan as P.W.1 and Sri R. Kannan as P.W.2 and got marked the documents at Exs.P.1 to
10. The accused though not led any defense evidence, the Court got marked the documents at Exs.C.1 to 3. The Trial Court recorded the statement of the accused under Section 313 of Cr.P.C. and the accused did not choose to lead any evidence. The Trial Court after considering both oral and documentary evidence placed on record, acquitted the accused and hence the present appeal is filed before this Court.
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6. The main contention of the complainant in this appeal is that the Trial Judge failed to consider the evidence of PWs.1 and 2 and also the principles laid down in the judgments referred in the grounds of appeal and also failed to take note of accused Nos.1 and 2 have not entered into the witness box to rebut the evidence of the complainant. The Trial Judge has erred in relying on complaints preferred by the complainant in the arbitration petition and criminal proceedings initiated at Delhi and failed to take note of those matters, which arose with regard to other transactions that had taken place between the complainant and accused Nos.1 and 2. The Trial Judge should have considered only the complaint with regard to the return of cheque. The Trial Judge also has committed an error in holding that the complainant itself was due money to accused No.1 based on a cheque issued in favour of accused No.1 by the complainant-Company. The said cheque was issued to the accused with regard to the other transactions in terms of the MOU dated 10.03.2004. The Trial Judge failed to take note of the fact that P.W.1 was transferred as a result P.W.2 gave the evidence and his evidence is not appreciated in a proper perspective.
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7. The learned counsel appearing for the appellant would submit that there was a MOU between the parties to procure the minerals and export the same. In terms of the MOU dated 10.03.2004, it was agreed to pay 80% by the complainant and remaining 20% by the accused. As per Clause No.19 of the MOU, that in case of breach of any terms and conditions of this agreement by the accused, the complainant shall be at liberty to terminate the agreement forthwith and deal with or dispose of the goods lying in its custody and realize the money for the same and that in the process if the complainant suffers any loss of their investment or returns thereon, the same shall be payable by the accused.
8. The learned counsel also brought to the notice of this Court Clause No.2 of the MOU with regard to expected cost of the proposed procurement of Iron Ore in Crores detailed in the MOU to the tune of Rs.14.82 Crores. The learned counsel also brought to the notice of this Court Clause No.9 of the MOU with regard to the ready stock disbursement of the funds will be at site and before actual disbursement the accused shall submit invoice in favour of the complainant, certificate of SGS in respect of quality and quantity of material, physical inspection of 6 material, insurance cover, security arrangement of material and lease of yard duly transferred in the name of the complainant.
9. The learned counsel for the complainant would also submit that the procurement of Iron Ore was not exported and the stock was missing. The learned counsel would submit that in order to substantiate the case of the complainant, the complainant examined P.Ws.1 and 2. The evidence of P.W.1 would substantiate the case of the complainant. The Trial Judge has committed an error in shifting the burden on the complainant. Inspite several documents are produced and the accused has admitted the cheque, the Trial Judge ought to have drawn the presumption under Section 139 of the Negotiable Instruments Act ('N.I. Act' for short). The reasoning given by the Trial Court with regard to the existence of the liability is erroneous. The defense taken by the accused is that the cheques were given as security and not for any liability. In order to substantiate the said contention, the accused failed to step into the witness box and not led any evidence. The learned counsel would submit that in terms of the MOU, there was no terms or conditions to furnish the cheque as security and what made to issue the cheque as security, nothing is placed on record. More 7 than 10 cheques are issued and notices were also issued against the accused and the accused did not give any reply.
10. The defense relies upon the documents Exs.C.1 and 2 i.e., the complaint filed at Delhi and the same is in respect of different transactions. The accused also relied upon Ex.C.3, the account extract. The Trial Judge after considering both oral and documentary evidence placed on record has not held that the preponderance of probabilities has been made out by the accused and instead of relied upon Ex.C.3 erroneously. The actual documents which have been placed before the Trial Court supports the case of the complainant. In spite the complainant proved the case beyond reasonable doubt, the Trial Judge committed an error. The judgments which the accused relies upon are prior to amendment to Section 138 of the N.I. Act and even though the accused has not prevailed the case and in the MOU there is no any averment with regard to furnishing of the security, the Trial Judge has committed an error in coming to the conclusion that the defense of the accused is probable.
11. The other contention of the learned counsel is that the Trial Court has observed that the very presentation of the 8 cheques are premature and contend that the Trial Judge has committed an error that unless the accounts are finalized, the complainant ought not to have presented the cheques. In spite of service of notice, the accused has not given any reply and also no payment has been made subsequent to the receipt of notice also. When such being the case, the Trial Judge ought to have drawn the presumption mandated under Section 139 of the N.I. Act.
12. The learned counsel for the complainant in support of his contentions, he relies upon the judgment of the Apex Court in the case of ROHITBHAI JIVANLAL PATEL v. STATE OF GUJARAT AND ANOTHER reported in AIR 2019 SC 1876. Referring paragraph No.17 of the judgment, the learned counsel would submit that once presumption of existence of legally enforceable debt drawn in favour of the complainant, onus is shifted on the accused. Unless onus is discharged by the accused that preponderance of probabilities are tilting in his favour, doubt on case of complainant cannot be raised for want of evidence regarding source of funds for advancing loan to the accused. The learned counsel referring paragraph No.18 would 9 submit that failure of the accused to show reasonable probability of existence of no transaction has been made out. The accused not denied his signatures on cheques but attempting to suggest availability of his signatures and contending that the cheques are taken as security, cannot be accepted unless the accused makes out the preponderance of probabilities in his favour.
13. The learned counsel for the complainant also relied upon the judgment of the Apex Court in the case of BIR SINGH v. MUKESH KUMAR reported in (2019) 4 SCC 197. The learned counsel referring this judgment would submit that Section 139 of the N.I. Act raises presumption of law that cheque duly drawn was in discharge of debt or liability. However, the said presumption is rebuttable and the onus lies on drawer to rebut it by adducing cogent evidence to the contrary. The learned counsel referring this judgment would submit that the accused did not step into the witness box and not rebutted the presumption by adducing any cogent evidence.
14. The learned counsel also relied upon the judgment of the Apex Court in the case of UTTAM RAM v. DEVINDER SINGH HUDAN AND ANOTHER reported in (2019) 10 SCC 10
287. The learned counsel referring this judgment would submit that in this judgment, the Apex Court held that matters to be established by the accused and bare denial of the passing of the consideration and existence of a debt, is not enough to rebut the presumption. To rebut the statutory presumptions, accused is not expected to prove his defense beyond reasonable doubt as is expected of the complainant in a criminal trial. Rather, something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. The learned counsel referring this judgment would submit that the accused did not choose to enter into the witness box and adduce any evidence and also not brought out any case shifting the burden of proof on the complainant.
15. The learned counsel for the complainant also relied upon the judgment of the Apex Court in the case of M/S. SHREE DANESHWARI TRADERS v. SANJAY JAIN AND ANOTHER passed in Criminal Appeal Nos.61-62/2011 and brought to the notice of this Court paragraph Nos.18 and 19 of the judgment, wherein the Apex Court has held that the courts below erred in not raising the statutory presumption under Section 139 of the N.I. Act that the complainant received the 11 cheques to discharge the debt or other liability in whole or in part. It is further observed that it is for the accused to adduce evidence to prove that the cheques were not supported by consideration and that there was no debt or liability to be discharged by him. The oral and the documentary evidence adduced by the complainant are sufficient to prove that it was a legally enforceable debt and the cheques were issued to discharge the legally enforceable debt. With the evidence adduced by the complainant, the courts below ought to have raised the presumption under Section 139 of the Act. The evidence adduced by the accused is not sufficient to rebut the presumption raised under Section 139 of the Act. The learned counsel referring this judgment would submit that the Trial Judge has committed an error in not drawing the presumption and also failed to take note of the fact that the material placed by the accused is not sufficient to rebut the presumption. In spite of the accused has not placed the material to prove his case with preponderance of probabilities, the Trial Judge has committed an error.
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16. Per contra, the learned counsel appearing for the accused would submit that there is no dispute with regard to procurement of Iron Ore in terms of the MOU. It was agreed that the complainant has to fund 80% and the accused has to fund 20%. It is also agreed that after exporting the Iron Ore, the complainant has to deduct 80% interest cost of transportation, demurrages and if it exceeds, the accused to get the benefit of 20%. The learned counsel appearing for the accused brought to the notice of the Court the averments made in paragraph No.2 of the complaint and the complainant has not produced any documents except legal notice, but while adducing the additional evidence referred the document MOU. The learned counsel would submit that the audited account statement was not produced. The accused relied upon documents Exs.C.1 to 3. The complainant sold the goods. The complainant relies upon the evidence of P.W.1 claiming the transaction is for Rs.11,50,57,488/- and in this regard also not produced the statement of accounts. But in MOU, it is mentioned that the transaction is to the tune of Rs.14 Crores. When the statement of account has not been produced and the accounts are not 13 finalized, the question of issuing the subject matter of cheques does not arise.
17. The learned counsel for the accused in support of his contentions mainly relied upon the judgment of the Apex Court in the case of M.S. NARAYANA MENON v. STATE OF KERALA AND OTHERS reported in MANU/SC/2881/2006 and brought to the notice of this Court paragraph Nos.17, 19, 20, 21 and 23 of the judgment. For rebutting the presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. The learned counsel would submit that the standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies. It is not in dispute that transactions comprising purchases and sales of shares by investors are a matter of confidence. Both parties would have to rely upon one another. For the said purpose, the courts of law may also take judicial notice of the practice prevailing in such business. For proving the said transactions, books of accounts maintained by respondent No.2 were found to be not reflecting the correct state 14 of affairs. It was for the complainant only to discharge initial onus of proof. He was not necessarily required to disprove the prosecution case. The learned counsel referring this judgment would submit that the accused had made out a ground for preponderance of probabilities and the complainant has not placed any statement of account with regard to business transactions. Hence, this judgment is aptly applicable to the case on hand.
18. The learned counsel for the accused relied upon the judgment of Delhi High Court in the case of PINE PRODUCT INDUSTRIES AND OTHERS v. R.P. GUPTA AND SONS AND OTHERS reported in MANU/DE/9749/2006. Relying upon paragraph No.6 of the judgment, the learned counsel would contend that no details whatsoever have been indicated as to what the liabilities were, what were the amounts for which the said cheque was issued for part payments, on which dates the amounts were taken by the petitioner nor were the exact amounts taken by the petitioner mentioned. The complaint was completely vague and bereft of any details.
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19. The learned counsel referring paragraph No.12 of the judgment would contend that if the petitioner is yet able to show from the evidence on record that the presumption is rebutted then the complainant must be able to establish from the evidence on record itself that a case under Section 138 is clearly made out. If the complaint is vague and bereft of any details regarding discharge, liability of repayment of the amounts, there cannot be any conviction in the criminal proceedings. The complaint is also silent with regard to what was the rate of interest, what was the extent of goods which were supplied and adjusted against the payment. When all these details are conspicuously absent, the accused cannot be convicted.
20. The learned counsel also relied upon the judgment of the Apex Court in the case of NATIONAL SMALL INDUSTRIES CORPORATION LTD. v. STATE (NCT OF DELHI) AND OTHERS reported in MANU/SC/4845/2008 and brought to the notice of this Court paragraph Nos.12 and 13 with regard to relying upon the evidence of the employees of the Government Company working in Public Limited Companies. 16
21. The learned counsel also relied upon the judgment of the Apex Court in the case of BASANT SINGH v. JANKI SINGH AND OTHERS reported in MANU/SC/0284/1966 and brought to the notice of this Court paragraph Nos.4 to 6, wherein the Apex Court made an observation that they are unable to accept the line of reasoning with regard to correctness of the statement that she had surrendered her estate and was entitled to maintenance only. All the statements in the plaint are, therefore, admissible as evidence. However, the Court is not bound to accept all the statements as correct. The Court may accept some of the statements and reject the rest. The High Court also observed that an admission in a pleading can be used only for the purpose of suit in which the pleading was filed and also distinction between and admission made by a party in a pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true. The learned counsel referring this judgment would submit that Sections 17 to 21 of the Evidence Act comes to the rescue of the accused in view of 17 the admission given by P.W.1 in the cross-examination and also the answers elicited from the mouth of the witnesses of the Company in Delhi proceedings.
22. The learned counsel also relied upon the judgment of this Court in the case of SHREYAS AGRO SERVICES PVT. LTD. v. CHANDRAKUMAR S.B. reported in MANU/KA/8224/2006 and brought to the notice of this Court paragraph No.3, wherein it is held that the words "for discharge of any debt or other liability" in Section 138 of N.I. Act should be interpreted to mean current existing or past ascertained liabilities. Referring this judgment, the learned counsel would submit that in the case on hand, there is no material with regard to current existing or past ascertained liabilities and first of all there is no statement of accounts before this Court. Under the circumstances, it cannot be contended that the cheques are issued in respect of discharge of any debt or any liability.
23. The learned counsel relied upon the judgment of the Allahabad High Court in the case of AJODHYA PRASAD BHARGAVA v. BHAWANI SHANKER BHARGAVA AND OTHERS reported in MANU/UP/0001/1957 and brought to 18 the notice of this Court paragraph Nos.9, 18 and 83, wherein the Full Bench discussed with regard to the admissions under Section 21 of the Evidence Act. The party making the admission may give evidence to rebut this presumption, but unless and until that is satisfactorily done, the fact admitted must be taken to be established. The learned counsel referring paragraph No.83 of the judgment would submit that the admissions being substantive piece of evidence, there admissibility is not depending on the appearance or non-appearance of the party as witness.
24. The learned counsel relied on the judgment of the Apex Court in the case of BISHWANATH PRASAD AND OTHERS v. DWARKA PRASAD AND OTHERS reported in MANU/SC/0006/1973. Referring this judgment the learned counsel brought to the notice of this Court the observation made by the Apex Court with regard to Section 21 and 145 of the Evidence Act with regard to cardinal distinction between party who is author of prior statement and witness who is examined and sought to be discredited by use of his prior statement. Admission by party in former case is substantive evidence if fulfills requirements of Section 21.
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25. The learned counsel relied upon the judgment of Andhra Pradesh High Court in the case of SWASTIK COATERS PVT. LTD., v. DEEPAK BROTHERS AND OTHERS reported in MANU/AP/0124/1996 and brought to the notice of this Court paragraph No.3 of the judgment, wherein the High Court has made an observation that at any rate, the cheque was a post dated cheque and as on the date of issuing of the cheque there was no existing enforceable debt or liability and having regard to these circumstances no offence is constituted under Section 138 of the N.I. Act.
26. The learned counsel relied upon the judgment of the Apex Court in the case of THIRU JOHN AND OTHERS v.
RETURNING OFFICER AND OTHERS reported in MANU/SC/0211/1977 and brought to the notice of this Court paragraph Nos.14 to 16. Referring paragraph No.15 the learned counsel would submit that the Apex Court has made an observation that it is well settled that, a party's admission as defined in Sections 17 to 20 fulfilling the requirements of Section 21, Evidence Act, is substantive evidence. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to 20 the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to be established.
27. The learned counsel relied upon the judgment of the Apex Court in the case of UNION OF INDIA v. MOKSH BUILDERS AND FINANCIERS LTD. AND OTHERS reported in MANU/SC/0057/1976 and brought to the notice of this Court paragraph Nos.16 and 22 to 24 of the judgment. In paragraph No.16 it is held that the burden of proof is, however not static, any may shift during the course of the evidence. Thus while the burden initially rests on the party who would fail if no evidence is led at all after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side. It is therefore necessary to weigh the evidence in this case and to decide whether, even if it were assumed that there was no conclusive evidence to establish or rebut the allegation. The learned counsel would submit that an admission is substantive evidence of the fact admitted and that admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or 21 not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions.
28. The learned counsel for the accused relied upon the judgment of Kerala High Court in the case of JOSEPH SARTHO v. G. GOPINATHAN AND ANOTHER reported in MANU/KE/0342/2008 and brought to the notice of this Court paragraph Nos.13 and 16. The learned counsel referring this judgment would contend that it is one of the fundamental principles of law that penal law should not be vague. A law fails to meet the requirements of the due process clause if it so vague and standard less that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide. The observation made in the judgments that for the bouncing of a cheque, which did not represent the amount or part of the amount due to the appellant, the accused cannot be made liable.
29. The learned counsel relied upon the judgment of the Apex Court in the case of RAHUL BUILDERS v. ARIHANT FERTILIZERS AND CHEMICAL AND ANOTHER reported in MANU/SC/4139/2007 and brought to the notice of this Court 22 paragraph No.8 of the judgment with regard to giving of the notice within a stipulated time and not giving any reply by the accused.
30. The learned counsel in support of his contentions relied upon several judgments before this Court and would submit that under Sections 17 to 21 of the Evidence Act, the admissions takes away the case of the complainant insofar as to gain tradings and admission given by Sri K.K. Mathur when he was subjected to cross-examination. The witness who has been examined before the Court Sri R. Sundararajan also admitted the defence of the accused.
31. Having heard the arguments of the respective learned counsel and also on perusal of the grounds urged in the appeals, the points that would arise for the consideration of this Court are:
(i) Whether the Trial Court has committed an error in acquitting the accused for the offence punishable under Section 138 of the N.I. Act?
(ii) What order?
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Point Nos.(i) and (ii):
32. Having heard the respective counsel on behalf of the complainant and the accused and also in keeping the grounds urged in the appeal, this Court has to re-appreciate the material available on record. The present appeal is filed against the order of acquittal. This Court has to re-appreciate the material on record and arrive for a conclusion whether the trial Judge has considered the material available on record or not. This Court also given anxious consideration to the principles laid down in the Judgments referred supra both by Complainant's Counsel and accused Counsel. In keeping the principles and also considering the material available on record, this Court has to examine whether the Trial Court Judgment is perverse and not based on the material available on record.
33. In keeping the grounds, this Court has to evaluate the evidence available on record. Admittedly, the complainant has examined two witnesses. Though, P.W.1 filed an affidavit and examined in chief and got marked the documents-Exs.P1 to P7, he was not tendered for cross-examination. Hence, his 24 evidence has been discarded and only the evidence of P.W.2 was remained. The accused have not led any evidence.
34. The evidence, which remains is the witness- R.Kannan, Assistant Manager (Accounts), in his evidence in the form of an affidavit, it is stated that the accused had raised one invoice for about 25000 MTs for shipment of the business transaction. When the complainant pressed for payment of complainant's dues, the accused have issued the cheque for a sum of Rs.2,50,00,000/-. Though, it was assured that the same would be paid, it was returned on the ground of 'Insufficient Funds'. Exchange of notice also narrated in the affidavit. The documents-Exs.P8 to P10 are marked through this witness i.e., Proforma Sale Invoice, Letter addressed to the Complainant and the Invoice sent to the accused, respectively. He was subjected to cross-examination. In the cross-examination, it is elicited that he is giving evidence on his personal knowledge and based on the documents. His evidence was that the transaction was taken place between 2004 and 2006. Prior to that he was working at Chennai and he was seeing the reports which he was getting from Bengaluru. Hence, he has the personal knowledge. He says 25 that he does not know about filing of three cases against this accused, but he admits that one K.K.Mathur working at Delhi. But not aware of filing of three cases at Delhi. However, he admits that Sundararajan, who had filed an affidavit earlier and examined as P.W.1 in this case and K.K.Mathur, both are still working in the complainant-Company. He admits that two invoices referred in paragraph No.2 of the complaint are not pressed and in his affidavit, there is an averment in respect of paragraph No.2 of the complaint, but not in the affidavit of Sundararajan. However, he admits that the contents of his affidavit are not tallying with the second paragraph of the complaint. He also admits that in the affidavit of Sundararajan, there was no reference of 25000 MTs. He admits that he has not produced any statement of accounts to show that accused- Company is due to the complainant-Company to the tune of Rs.2,50,00,000/-. He says invoice shows the same. He admits that Exs.P8 to P10 bears the dates prior to the disputed cheque. He admits that in the complaint in paragraph No.2, it is mentioned as 6000 MTs and in his affidavit, it is mentioned as 25000 MTs. He admits that Ex.P10 is the Proforma Sale Invoice. He admits that after sending Ex.P10 to the accused, he has not 26 produced the reference of the said invoice in this case. He admits that his advocate has prepared the chief-examination by way of affidavit. It is suggested that the complaints filed at Bengaluru and Delhi and Arbitration Petition were pending before Justice Sharada Agarwal are also connected to this transaction and the same was denied. He admits that invoices, which are referred in paragraph No.2 of the complaint, are not in existence. It is suggested that after Ex.P10, no transaction was taken place between the complainant and the accused and the same was denied. It is suggested that after dismissal of three complaints at Delhi and three complaints in Bengaluru, the affidavit filed by him is contrary to the affidavit filed by P.W.1- Sundararajan and the said suggestion was denied. It is suggested that in terms of MOU, the agreement was only for a sum of Rs.14.82 Crores and accused already paid more than Rs.20 Crores. But, he claims that he has not aware of the same. The documents-Exs.C1 to C3 are got marked as Court Documents and accused have not led any evidence.
35. Having perused both oral and documentary evidence, the evidence of P.W.1-Sundararajan was discarded. 27 But, in his affidavit, he claims that the accused had raised two invoices for about 6000 MTs for shipment of business transaction and complaint averments also described the same. The other witness is R.Kannan, who subsequently examined as P.W.2. In his affidavit, he says that complainant entered into a business transaction with accused Nos.1 and 2 and when pressed for payment, the accused issued the subject matter of the cheque. There is no averment with regard to 6000 MTs, but it is contrary to the earlier affidavit filed by Sundararajan. Though the evidence of P.W.1-Sundararajan was discarded since he was not tendered for prosecution. Exs.P1 to P7, which are with regard to authorization and subject matter of the cheque and the memo issued by the Bank, legal notice and postal acknowledgement are the documents marked on behalf of the complainant. It is important to note that based on the complaint, it is the case of the complainant that the accused had raised two invoices for supply of 6000 MTs for shipment of the business transaction and these two invoices are not in existence as admitted by P.W.1 in the cross-examination. However, the complainant relied upon the documents-Exs.P8 to P10. But in the cross-examination, it is categorically admitted that Exs.P8 to P10 bears the date prior to 28 the subject matter of the cheque and also there is contrary evidence as against the contents of the complaint and in the complaint, it is in respect of 6000 MTs. and in the affidavit it is mentioned as 25000 MTs. It is also categorically admitted that Ex.P10 is only a Proforma Sale Invoice. It is also important to note that though P.W.2-R.Kannan was examined and claims that he is having the personal knowledge and giving evidence based on the records. He denies the initiation of other three complaints before the Court. Even he had gone to the extent of denying the three complaints filed against these accused persons at Delhi, so also initiation of arbitration proceedings.
36. I have already pointed out that two invoices, which are referred in the complaint are not produced before this Court and subsequently relied upon the documents-Exs.P8 to P10 and without any pleading in the complaint, the documents-Exs.P8 to P10 are introduced during the course of examining this witness. It is also important to note that this witness is not having the personal knowledge. Only he claims that he was getting the report when he was working at Chennai and having the personal knowledge. He then denies the initiation of proceedings against the accused at Delhi as well as at Bengaluru, this witness cannot 29 be termed as having personal knowledge with regard to the transaction. It is also important to note that Ex.P10, which has been relied upon by the complainant is only a Proforma Sale Invoice and legal notice claim is in respect of two invoices for about 6000 MTs, but documents produced before this Court as Exs.P8 to P10 are contrary to the complaint averments as well as the legal notice. Hence, it is clear that Ex.P8 is in respect of 25000 MTs. of iron ore and claim is to the tune of Rs.2,50,00,000/-. The complainant has changed his version while leading the evidence through the witness P.W.2-Kannan. The complainant being the Central Government Undertaking ought to have produced the documents with regard to the transaction, which had taken place between the complainant and the accused. It is also important to note that in the cross- examination, P.W.2-Kannan was cross-examined suggesting that in terms of MOU, it is agreed to transact only to the tune of Rs.14.82 Crores. But the accused already made the payments more than Rs.20 Crores and witness says he is not aware of the same. Hence, it is clear that the witness - P.W.1 is not aware of the transaction taken place between the complainant and the accused. It is also important to note that Exs.C1 to C3 are got 30 marked as Court documents. The complainant does not deny the same.
37. In terms of Exs.C1 to C3, it is clear that when Sundararajan, who has been examined as P.W.1 has deposed regarding the transaction between the complainant and the accused. He categorically admits that the documents-Exs.C1 to C3, which are in respect of the account extract and that the accused had paid more than Rs.30 Crores to the complainant. The very same documents were marked as Ex.P6 in other complaints and the same has been suppressed by the complainant before this Court. Though the accused has not been examined before the Court, effectively rebutted the evidence of the complainant and the answers elicited from the mouth of P.W.1, it is clear that the contents of the complaint has not been set out in the affidavit filed by P.W.2. The affidavit filed by PWs.1 and 2 are contrary to each other having supplied the iron ore. One claims that it was 6000 MTs iron ore and subsequent witness-P.W.2 claims that, it was 25000 MTs iron ore.
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38. I have already pointed out that in the affidavit of P.W.2 averments are also contrary to the complaint averments. The same is as against the pleadings and also in the original complaint and affidavit of Sundararajan, it is claimed that the cheques are issued in respect of two invoices, but subsequently, P.W.2 claims that it was in respect of supply of 25000 MTs. iron ore. The complainant is not sure about whether it is for the supply of 6000 MTs. iron ore or towards supply of 25000 MTs. iron ore and also the invoices which have been pleaded in paragraph No.2 of the complaint have not been placed before the Court. It is also important to note that, P.W.2, who has been examined subsequently, is not aware of the transaction between the complainant and the accused in toto and he is not aware of any proceedings initiated by the accused in Delhi as well as in Bengaluru. It is also pertinent to note that the complainant being a Central Government Undertaking has not maintained any account with regard to the transaction and produced the same before the Court. There must be a proof with regard to ascertaining the liability of the accused. In the absence of said statement of account before the Court, the Court cannot come to the conclusion that the cheques are issued 32 towards the debt or liability. It is also important to note that P.W.2 categorically admits that Ex.P10 was only a Proforma Sale Invoice was raised. When such being the case, in the absence of relevant documents before the Court, the Court cannot come to a conclusion that the said cheques are issued in discharge of liability. No doubt, it is settled principle that once the cheque is admitted and not denied the signature; the Court has to draw the presumption.
39. I have already pointed out that the said presumption is also a rebuttable presumption. In the case on hand, the accused had rebutted the case of the complainant and even after rebutting the evidence of the complainant, even though, the burden shifts on him but further fails to prove the case of the complainant. The Complainant did not choose to place the material before the Court either the invoices or the statement of accounts. When such being the case, the accused are rebutted the case of the complainant.
40. Having perused both oral and documentary evidence available on record, I do not find any error committed by the Trial Court in appreciating both oral and documentary evidence 33 and rightly come to the conclusion that the complainant has failed to prove its case. This Court can only reverse the finding of the Trial Court if the findings of the Trial Court is perverse and the material evidence is not considered then to exercise its appellate jurisdiction to reverse the findings and I did not find any such error committed by the Trial Court in appreciating the case of the complainant. Hence, it is not a fit case to reverse the findings of the Trial Court.
41. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE MD/PYR/CP*