Bangalore District Court
Pvt vs No.68 on 31 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 31st 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.1712 of 2017
2. The date of 18-02-2020
commencement of
evidence
3. The date of closing 24-03-2021
evidence
4. Name of the M/s Sree Gokulam Chit and Finance co.,
Complainant Pvt., Ltd., having its registered office at
Chennai and having its branch office at
R.T.Nagar branch, No.24, 1st Floor,
80 feet road, HMT layout,
RT nagar, Bangalore-32,
Rept., by its Legal Clerk of the company
and GPA holder V.Naveen Kumar,
Aged about 25 years
(Advocate-Sri.B.N.R )
5. Name of the Mohamed Jani Sait,
Accused No.68, 5th main, Bhuvaneshwari nagar,
Opposite Gokul public school,
RT nagar, Bangalore-560 032.
(Advocate-Sri.H.R.)
6. The offence U/s.138 of The Negotiable Instruments Act
complained of
7. Opinion of the Accused found not guilty
judge
2 C.C.No.1712 OF 2017
SCCH-26
JUDGMENT
The complainant company filed this complaint through its GPA holder 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 complainant is a registered company under the company`s Act 1956 and its running a business of chit fund. That one Shahnaz Begum is a member of a chit with the complainant and subscriber of the chit bearing No.G2G/343 Ticket No.14, in his name with complainant and the accused is the surety/guarantor to the above said Shahnaz Begum. That the above said Shahnaz Begum became successful bidder of the above said chit and received the prize amount from the complainant company, the accused stood as a guarantee to the above said Shahnaz Begum. That at the time 3 C.C.No.1712 OF 2017 SCCH-26 of receiving the chit prize amount and the above said Shahnaz Begum became chronic defaulter to pay the monthly installments to the complainant company. That inspite of many repeated demands and request by complainant to the above said Shahnaz Begum and to the accused, both accused and above said Shahnaz Begum failed to pay the monthly installments (chit amount) to the complainant, at last in the month of October 2016, hereafter the accused came to their office and after verification of the account and the accused issued a cheque to the complainant company for a sum of Rs.1,22,000/- dt.14-10-2016 bearing cheque .7131141 of Indian Overseas Bank, RT nagar, Bangalore-560032 in favour of the complainant company. That the complainant company presented the said cheque to the bank, but the said cheque returned the complainant company unpaid with bank endorsement Funds Insufficient dt.21-10-2016. That the complainant company issued a legal notice dt.17-11-2016 to the accused through RPAD and ordinary post, but the accused has not paid the above said cheque amount to the 4 C.C.No.1712 OF 2017 SCCH-26 complainant company nor she has given any reply. Therefore complainant filed this complaint.
3. At first instance, the present complaint filed before the 27th ACMM, Bangalore on 13-1-2017 which was registered as PCR No.655/2017, thereafter sworn statement of the complainant by way of affidavit was received on 2-1-2017, the case was registered and summons was ordered to be issued, pursuant to which present CC number assigned. On 13-6- 2019, accused appeared through his counsel and got enlarged him on bail. As per notification No.ADM 1/19/2017 dated 20-11-2017 of CMM, Bengaluru, this case is transferred to 24th ASCJ & 22nd ACMM (SCCH-26), Bengaluru.
4. In order to establish his case, V.Naveen Kumar/GPA holder of complainant company himself examined as PW-1 and got marked 11 documents as Ex-P1 to 11.
5. Heard oral arguments from both counsel.
6. The learned complainant counsel placed and relied below Apex court decisions:-
1. AIR 2009 Supreme Court page 422
2. AIR 2015 Supreme Court page 2240 5 C.C.No.1712 OF 2017 SCCH-26
3. AIR 2002 Supreme Court page 985
4. AIR 2001 Supreme Court page 676
5. (2007) 6 Supreme court cases page 555
6. 2012(4) AIR KAR.R page 119
7. 2007(2) KLJ page 19
8. 2001(4) KLJ page 122
9. ILR 2006 KAR page 1730
7. On perusal of entire material available on file and also on hearing the arguments with the rulings relied, the points that would arise for consideration are:-
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?
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?6 C.C.No.1712 OF 2017
SCCH-26
8. My answer to the above points is as follows :-
Point No.1 to 3 :Negative Point No.4 : As per final order for the following :-
REASONS
9. 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 registered under the companies Act 1956. One Shahnaz Begum is member of chit with the complainant company and subscriber of chit bearing No.G2G/343 Ticket No.14 in her name in the complainant company. The accused is surety/guarantor to the above Shahnaz Begum. The Shahnaz Begum become successful bidder of above said chit and received the prized amount from complainant company. after receiving the chit prize amount, the said Shahnaz Begum 7 C.C.No.1712 OF 2017 SCCH-26 became chronic defaulter to pay monthly installments to the complainant company. the complainant company did not took any legal action against the said Shahnaz Begum. The alleged cheque belongs to accused and bears signature is also belongs to accused. the said cheque dishonoured for insufficient of funds. The legal notice issued by complainant company duly served on accused.
10. 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 denial of the case of the complainant company, the accused has specifically contended that the complainant company colluding with Shahnaz Begum filed this false case against 8 C.C.No.1712 OF 2017 SCCH-26 accused. The accused has no any liability towards complainant company. The disputed cheque ever issued in favour of complainant company by the accused. The complainant official and Shahnaz Begum colluding with each other and misused blank cheque of accused. The complainant company having possibility to recover balance chit installments amount from Shahnaz Begum, but they intentionally did not took any legal action against Shahnaz Begum, complainant company official and Shahnaz Begum colluding each other and harassing this accused filed false complaint against this accused. The compliannt company did not produce chit enrolment application of Shahnaz Begum and chit register on the date of bidding who were chit members present, how much of amount Shahnaz Begum paid towards complainant company, how much amount due from Shahnaz Begum, they intentionally did not produced those relevant documents. Therefore, on the above objections the accused seeking the present complaint is not maintainable and liable to be dismissed in limine.
9 C.C.No.1712 OF 2017
SCCH-26
11. 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 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 10 C.C.No.1712 OF 2017 SCCH-26 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.
12. 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 Raja H.M.-Branch GPA holder and legal clerk of complainant company 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 11. On the 11 C.C.No.1712 OF 2017 SCCH-26 other hand, accused stated while recording 313 statement he has defence evidence, but later he did not opt to lead defence evidence. Hence defence evidence taken as Nil. Both side evidence closed. In addition to that the complainant has produced Ex-P1-certificate of incorporation of complainant company, the said company registered vide No.6995/1975 in registrar of company, Tamilnadu State. Ex-P2 minutes of board meeting of complainant company directors on 9-7-2015 and they resolved and appoint one Mr.Naveen Kumar-Legal clerk of the company authorized to filing criminal/civil cases or initiating of any legal proceeding or defending any suit or legal proceeding in any court in the state of Bangalore on behalf of complainant company. Ex.P-3:Certified copy of GPA, the Managing director of complainant company appointed one Mr.Naveen Kumar-legal clerk in complainant company to do act, deeds, take legal action against defaulted customer and other persons who owe to the above said company and recover money from them on behalf of complainant company. Ex.P-4:
Cheque bearing No.713141 dt.14-10-2016 for sum of Rs.1,22,000/- addressed in favour of complainant company, it 12 C.C.No.1712 OF 2017 SCCH-26 is duly signed by A/c holder, Ex.P-4(a): Signature, Ex.P-5:
CTS return memo dt.21-10-2016, Ex-P4 returned for the reason of Funds Insufficient, Ex.P-6: Postal receipt dt.17-11- 2016, RPAD letter sent to one Mohammed Janisait from one B.N.Ravishankar, Ex.P-7: Legal notice dt.17-11-2016 issued to accused from complainant company, Ex.P-8: Unserved postal cover, it disclose that on 19-11-2016 intimation was delivered to addressee, Ex.P-9 : Form No.1-Surety and proposal form dt.1-2-2015. On perusal it reveals that one Shanaz Begum prize bidder of chit group No.G2G343/14 ticket No.11, bid amount is Rs.57,000/- auction dt.1-2-2015, she offered one surety Mohammed Janisait, chit value is Rs.3,00,000/- there is no mention of due amount. Ex.P-10: Payment description regular prized voucher dt.24-02-2015, the particulars contained ticket No.G2G343/TNR 14 total chit value Rs.3,00,000/- bid amount Rs.57,000/- net payable Rs.2,43,000/-, amount collected upto as on date of 24-2-2015 Rs.1,49,500/- and dividend given Rs.26,850/-, total Rs.1,76,350/- paid by Shahanaz Begum Rs.2,43,000/- received by Shahanaz Begum, surety name mentioned as 13 C.C.No.1712 OF 2017 SCCH-26 Buden Sab No.23, 1st cross, Guddahalli, RT nagar, the surety is son of Shahanaz Begum and Ex.P-11: Legal extract maintained by complainant company which relates to A/c bearing No. 389336/227010200006491 from 1-4-2014 to till 1-10-2019.
13. Further it is pertinent to scrutinize the oral and documentary evidence adduced by complainant it depicts admittedly disputed cheque belongs to accused and bear signature is also accused, statutory notice returned as Unserved as door locked, but on 19-11-2016, intimation delivered to addressee, then on 26-11-2016, Ex-P8 was returned as not claimed, hence returned to sendor. The accused mainly attacked PW-1, the complainant company colluding with Shahnaz Begum filed this false case against accused. The accused has no any liability towards complainant company. The disputed cheque ever issued in favour of complainant company by the accused. The complainant official and Shahnaz Begum colluding with each other and misused blank cheque of accused. The complainant 14 C.C.No.1712 OF 2017 SCCH-26 company having possibility to recover balance chit installments amount from Shahnaz Begum, but they intentionally did not took any legal action against Shahnaz Begum, complainant company official and Shahnaz Begum colluding each other and harassing this accused filed false complaint against this accused. The compliannt company did not produce chit enrolment application of Shahnaz Begum and chit register on the date of bidding who were chit members present, how much of amount Shahnaz Begum paid towards complainant company, how much amount due from Shahnaz Begum, they intentionally did not produced those relevant documents. It is pertinent to note cross examination dt.17-3- 2021 that in page 5 in 8th line-
¢£ÁAPÀ 1-2-2015 gÀ°è aÃnAiÀÄ£ÀÄß ©qï ªÀiÁrzÀgÀÄ. ©qï ªÉÆvÀÛªÀ£ÀÄß ©qïzÁgÀjUÉ ¤ÃqÀĪÀ ¸ÀAzÀ¨ÀsðzÀ°è CªÀgÀ «¼ÀÁ¸À UÀÄgÀÄw£À ¥ÀÅgÁªÉUÉ ¸ÀA§A¢ü¹zÀ zÁR¯É, ¥ÉêÉÄAmï ¯ÉqÀÑgïUÉ ¸À» ¥ÀqÉzÀÄPÉÆArzÉÝÃªÉ ªÀÄvÀÄÛ eÁ«ÄãÀÄzÁgÀgÀ£ÀÄß ¥ÀqÉzÀÄPÉÆArzÉÝêÉ. eÁ«ÄãÀÄzÁgÀgÀÄ amï PÀgÁgÀÄ ¥ÀvÀæPÉÌ ¸À» ªÀiÁrzÁÝgÉ D PÀgÁgÀÄ ¥ÀvÀæªÀ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ PÉÆnÖ®è PÀgÁgÀÄ ¥ÀvÀæªÀ£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ PÉÆqÀ®Ä vÉÆAzÀgÉ E®è. 15 C.C.No.1712 OF 2017
SCCH-26 Further in 17th line-
±ÀºÀ£Áeï ¨ÉÃUÀªÀiï gÀªÀgÀ «gÀÄzÀÝ AiÀiÁªÀÅzÉà PÁ£ÀÆ£ÀÄ PÀæªÀÄ PÉÊUÉÆAr®è. Further in page 6 of cross examination in last line PW-1 clearly admitted that-
DgÉÆæ CPÉÆÖçgï 2017 gÀ°è £ÀªÀÄä ¸ÀA¸ÉÞUÉ §A¢zÀÝgÀÄ. DgÉÆæ ZÉPï ¤ÃrgÀĪÀ §UÉÎ °TvÀ zÁR¯É ªÀiÁrPÉÆAr®è.
Further PW-1 clearly and got admitted in page 7 cross examination dated 24-3-2021 at line 6 that-
±ÀºÀ£Á ¨ÉÃUÀA gÀªÀgÀ ªÉÄÃ¯É «ªÁ¢vÀ ZÉPÀÄÌ CªÀiÁ£ÀåªÁzÀ £ÀAvÀgÀ AiÀiÁªÀÅzÉà PÁ£ÀÆ£ÀÄ PÀæªÀÄ PÉÊUÉÆAr®è JAzÀgÉ ¸Àj. ±ÀºÀ£Á ¨ÉÃUÀA FUÀ®Æ fêÀAvÀ EgÀĪÀÅzÀjAzÀ CªÀjAzÀ ºÀt ªÀ¸ÀÆ° ªÀiÁqÀ§ºÀÄzÁzÀ ¸ÁzÀsåvÉ EgÀĪÀÅzÀjAzÀ F ¥ÀæPÀgÀtzÀ DgÉÆæ £ÀªÀÄä PÀA¥À¤UÉ ºÀt PÉÆqÀĪÀ ¨ÁzÀåvÉ ºÉÆA¢®è JAzÀgÉ ¸ÀjAiÀÄ®è.
14. Even PW-1 denied the suggestion of accused regarding still complainant company has right to recover balance installment chit amount from complainant suppressing the same, the complainant company had filed case against this accused. Admittedly as per say of the complainant one Shahanaz Begum is a member of a chit bearing No.G2G/343 and she was the subscriber of ticket 16 C.C.No.1712 OF 2017 SCCH-26 No.14, on 1-2-2015, auction conducted by complainant company, one Shahanaz Begum was the highest bidder she received prized amount from complainant company by furnishing one Buden Sab, No.23, 1st cross, Guddahalli, RT nagar and received Rs.2,43,000/-. After that, Shahanaz Begum defaulted in paying balance future monthly installments (chit amount) but the complainant company did not took any action against original chit member/prized subscriber i.e, Shahanaz Begum. There is no any material from the side of complainant to show that the present accused stood as surety for the outstanding amount which is payable by Shahanaz Begum towards complainant company. PW-1 himself admitted during cross examination, they did not maintained any document regarding they received cheque from accused for discharge of balance outstanding chit installment amount which is payable by Shahanaz Begum, the present accused stood as a surety and he agreed to pay the balance chit amount on behalf of Shahanaz Begum. So in the absence of materials and cogent evidence, there is no 17 C.C.No.1712 OF 2017 SCCH-26 existence of legally recoverable debt as on the date of issuance of cheque.
15. The complainant has filed this complaint U/s 200 Cr.P.C. it is well settled legal principle that complaint is not a substantial piece of evidence, but it can be used for corroboration as well as contradiction. It is the basic document which sets the criminal into motion. Of course lodging of complaint by any person may not loom large, as concept of locustandi is foreign to criminal law. But when informant makes specific serious allegation against the accused, it is expected that, complainant must speak in consonance with his version in complaint. Of course, merely giving explanation or some improvements in evidence before the court may not assume significance, but when complainant has given complete go by to complaint that creates serious doubts in the case of complainant.
16. It is also important to note that complainant is also making allegations which tends to charge the accused with criminal liability. Section 138 of NI Act being penal and consequences being sentence of imprisonment, stricter proof is 18 C.C.No.1712 OF 2017 SCCH-26 required. It is worthful to refer decision and ratio laid down in P.Sathyanarayana Vs C.H.Jayatheertha 2009(2) KCCR 1273 reads thus: Negotiable Instrument Act 1881 Section 138: Appreciation of evidence: standard of proof: strict proof from the complainant needed.
17. In such circumstances, the complainant being guilty of suppression of these fact would not be entitle to penal action against the accused. moreover, Section 138 being penal and consequence being sentence of imprisonment, stricter proof is required. In the instant case, this court noticed that no such proof of allegation in the complaint. The complainant states that, the present accused stood as a surety for original subscriber of chit group No.G2G/343 ticket No.14 i.e., Shahanaz Begum inspite of repeated demand and request by complainant to original subscriber of chit and accused, both have failed to pay monthly installments (chit amount) to the complainant. In the month of October 2016, the accused himself came to complainant office and issued disputed cheque for sum of Rs.1,22,000/- in favour of the complainant company. On believing the words of accused, on presentation 19 C.C.No.1712 OF 2017 SCCH-26 of payment through his banker, the disputed cheque got dishonoured. For such they issued demand notice, they did not paid etc., .... To substantiate above disputed facts, there is no materials from the side of complainant, the accused stood as surety and he issued disputed cheque for the purpose of outstanding amount of Rs.1,22,000/- which is payable by original chit subscriber. On behalf of original chit subscriber, accused agreed to pay outstanding chit amount, absolutely there is no material. The outstanding future subscription installment amount belongs to Shahanaz Begum. Herein the complainant has not made party to this case. Hence present debt is not recoverable debt.
18. 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.1,22,000/- to the complainant company. The documents produced by the complainant do not 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 20 C.C.No.1712 OF 2017 SCCH-26 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.
19. 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.4. 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.4 was returned uncashed there is 21 C.C.No.1712 OF 2017 SCCH-26 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 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 22 C.C.No.1712 OF 2017 SCCH-26 required to be answered in Negative and answered accordingly.
20. 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 31st July 2021) (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF THE
COMPLAINANT:
PW-1: V.Naveen Kumar
DOCUMENTS MARKED ON BEHALF OF THE
COMPLAINANT:
Ex.P-1: Certified copy of certificate of
incorporation
Ex.P-2: Certified copy of board resolution
Ex.P-3: Certified copy of GPA
23 C.C.No.1712 OF 2017
SCCH-26
Ex.P-4: Cheque
Ex.P-4(a): Signature
Ex.P-5: Bank endorsement
Ex.P-6: Postal receipt
Ex.P-7: Legal notice
Ex.P-8: Unserved postal cover
Ex.P-9 : Surety form
Ex.P-10: Payment voucher of subscriber
Ex.P-11: Legal extract
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED: NIL DOCUMENTS MARKED ON BEHALF OF THE ACCUSED: NIL (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.