Bangalore District Court
Smt. Yashoda @ Yashodamma vs M/S.Sri Manjunatha Electricals on 4 August, 2016
IN THE COURT OF THE XIX ADDL.CHIEF
METROPOLITAN MAGISTRATE AT BANGALORE CITY
Dated this the 4th day August, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No.23236/2014
Complainant: Smt. Yashoda @ Yashodamma,
D/o.late Kaverapa,
W/o.daniel,
Aged about 45 years,
R/at.No.431, 1st floor , 8th Cross,
1st Main, Lakshmanrao Nagar,
Viveknagar Post, Koramangala,
Bangalore.
Accused: M/s.Sri Manjunatha Electricals,
No.159, Srinivagilu,
Near Kavera780mma Temple,
Vivek Nagar Post,
Bangalore-560 047.
Rep by its proprietor
Sri.M.Chandrappa.
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found not guilty
Date of order: 4th August 2016
*****
2 CC No. 23236/2014
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of NI Act.
2. The brief facts of the complainant is as hereunder that;
The Complainant stated tha,t the accused is a proprietary concern doing business of electricals. The complainant had filed a civil suit in O.S.No.864/2012 before the Hon'ble Principal Senior Civil Judge at Anekal against her sisters and legal heirs of her deceased brother and sister of the accused by name Smt.Parvathama for partition and separate possession in respect of her ancestral property, wherein the Hon'ble Court granted exparte temporary injunction restraining the said Parvathamma from alienating the property bearing Sy.No.18, measuring 3 Acres 27 Guntas including 3 Guntas of Karab situated at Huskur Village of Anekal Taluk in favor any third parties. During the pendency of the said suit the accused approached this complainant by informing that the defendant No.9 of the said suit is his sister and persuated the complainant 3 CC No. 23236/2014 for settlement and in condition he has agree to pay a sum of Rs.5,00,000/- if in case the suit is withdrawn. The Complainant the believing the version of the accused and having confidence that the accused will pay the amount of Rs.5,00,000/- got withdrawn the suit on 08.05.2013 by filing a memo before the court and on the very same day the accused doing a proprietor of his firm issued an account payee post dated cheque bearing No. 040779 dtd.16.05.2013 for a sum of Rs.5,00,000/- drawn on Syndicate Bank, Vasanth Nagar branch, Bengaluru in her favour by stating that sufficient funds will be kept in the bank on the date of presentation of the cheque. The accused had obtained signatures of this complainant on some blank documents for acknowledgment purpose with a request to present the said for encashment on its due date and it will be honoured on its presentation.
It is further submitted by the complainant that when she demanded the accused to pay the cheque amount, he failed to make payment of the cheque amount and therefore she finally presented the said cheque for encashment before his banker State Bank of Mysore, Austin Town branch, Bengaluru on 4 CC No. 23236/2014 08.07.2013 , but the cheque returned dishonoured for the reason " Funds Insufficient" on 09.07.2013 and the same was informed to this complainant on 10.07.2013 and in turn she intimated the same to the accused.
It is further submitted that as the accused has failed to make payment of the cheque amount, the Complainant on 26.07.2013 got issued the legal notice through RPAD , calling upon the proprietor of the accused to pay the cheque amount within 15 days from the date of receipt of notice and the said notice was duly served on the wife of this accused on 29.07.2013. The accused even inspite of receipt of legal notice has neither chosen to make payment of the cheque amount nor he has replied to the notice. The accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus cheque and thereby accused has committed an offence punishable under Section 138 of N.I. Act.
3. After recording of sworn statement of the complainant the private complaint lodged by the complainant was registered as a criminal case, summons was issued as 5 CC No. 23236/2014 against the accused. The accused appeared through his counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
4. The complainant got examined herself as PW1 and she got produced 5 documents marked as Ex.P.1 to Ex.P.5 and closed her side of evidence.
5. After closure of the complainant side evidence accused Statement u/s 313 of Cr.P.C. was recorded and read over to the accused in his language. The accused denied the entire incriminating evidence in toto and he has not led his evidence before this court. However, Ex.D1 to Ex.D.4 documents were marked through confrontation to PW.1 in her cross examination.
6. I have heard the arguments of both the Learned Counsels and perused the records.
7. The only point arise for my consideration is: 6 CC No. 23236/2014
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
8. My findings to the above point are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
REASONS:
9. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got examined as PW1-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
10. PW1 deposed that she had filed a civil suit in O.S.No.864/2012 before the Hon'ble Principal Senior Civil Judge at Anekal against her sisters and legal heirs of her deceased brother and sister of this accused by name Parvathama for partition and separate possession in respect of her ancestral property , wherein the Hon'ble Court granted exparte temporary injunction by restraining the said Parvathamma from alienating the property bearing Sy.No.18, 7 CC No. 23236/2014 measuring 3 Acres 27 Guntas including 3 Guntas of Karab situated at Huskur Village of Anekal Taluk in favor any third parties. She deposed that during the pendency of the said suit the accused approached her and persuated her to settle the case on behalf of her sister Parvathamma and under the terms of settlement he agreed to pay a sum of Rs.5,00,000/- if in case the suit is withdrawn. She deposed that she withdrawn the said suit having confidence on the accused that he will pay the amount of Rs.5,00,000/- on 08.05.2013 by filing a memo before the court and on the very same day the accused being the proprietor of his firm issued an account payee post dated cheque bearing No. 040779 dtd.16.05.2013 for a sum of Rs.5,00,000/- drawn on Syndicate Bank, Vasanth Nagar branch, Bengaluru in her favour. She deposed that, the accused had obtained her signatures on some blank documents for acknowledgment purpose with a request to present the said for encashment on its due date and it will be honoured on its presentation.
8 CC No. 23236/2014
11. She further deposed that, she demanded the accused to pay the cheque amount, as he failed to make payment of the cheque amount she finally presented the said cheque for encashment before her banker on 08.07.2013 , but the cheque returned dishonoured for the reason "Funds Insufficient" on 09.07.2013 and the same was informed to her on 10.07.2013 and in turn she intimated the same to the accused.
12. She further deposed that as the accused has failed to make payment of the cheque amount on 26.07.2013, she got issued the legal notice through RPAD, calling upon the proprietor of the accused to pay the cheque amount and the said notice was duly served on the wife of this accused on 29.07.2013. She deposed that, the accused even inspite of receipt of legal notice has neither chosen to make payment of the cheque amount nor he has replied to the notice. She deposed that, the accused knowing fully well that he has no sufficient funds in his bank account, had issued a bogus cheque and thereby accused has committed an offence. 9 CC No. 23236/2014
13. PW-1 in order to prove her case, got produced the original cheque issued by the accused marked as Ex.P-1. She deposed that the signature found on Ex.P-1 cheque is that of this accused and she got identified the signature of this accused marked as Ex.P-1(a). She got produced two bank endorsements marked as Ex.P-2 & Ex.P.3. She got produced the copy of the legal notice along with postal receipt marked as Ex.P.4 & Ex.P.4(a) respectively. She got produced postal acknowledgement card for having served notice marked as Ex.P-5.
14. The accused denied the entire case of the complainant and also denied the very fact that he had entered into compromise with this complained in a suit filed in O.S. No.864/2012 on behalf of his sister and under the said proceedings he by acknowledging the liability of his sister had issued his Ex.P.1 cheque for Rs.5,00,000/- in favour of this complainant and he is liable to pay the cheque amount to the complainant and his cheque was bounced. The learned Counsel for the accused subjected the PW-1 for cross-examination and he extensively cross-examined the PW.1.
10 CC No. 23236/2014
15. PW-1 in her cross-examination categorically admitted that, in a suit file in O.S. No.864/2012 this accused was not a party to the proceedings. She admitted the certified copy of the plaint confronted to her during her cross examination and admitted that the said document is the plaint filed by her before the Civil Court and the said document is marked as Ex.D.1. She further admitted that, this accused is the brother of Smt.Parvathamma who is the defendant No.9 of the said suit and rest of the other defendant are all her family members. She admitted the suggestion that, the suit filed by her was ended in a compromise between herself with defendant No.9. She denied the suggestion that in the said proceedings the defendant No.9 has to pay a sum of Rs.13,00,000/- towards the compromise. However, she has stated that, the defendant No.9 of the said case has agreed to pay a sum of Rs.5,00,000/-. She denied the suggestion that, she after the receipt of a sum of Rs.8,00,00/- from the defendant No.9 of the said suit got withdrawn the suit. However, she admitted the certified copy of the memo confronted to her and admitted that she by filing 11 CC No. 23236/2014 the said memo got withdrawn the suit and the said memo is marked as ExD.2 and the certified copy of the order sheet of the said suit is marked as Ex.D.3. She admitted the suggestion that prior to withdrawal of the suit on 20.04.2013 she had executed an agreement in favour of Smt.Parvathamma by admitting the contents of the document and by putting her signature on the said document. She admitted the said agreement confronted to her and admitted that she herself had executed the said document in favour of Smt.Parvathamma. As PW.1 had admitted the said agreement, the same is marked as Ex.D.4. However, she denied the suggestion that under the said agreement she had agreed to execute a consent register deed in favour of Smt. Parvathamma on her behalf and also on behalf of her other family members and at the time of registration of the said document, she agreed to receive the remaining compromise amount of Rs.5,00,000/-from the defendant No.9 of the said suit. Likewise she denied the suggestion that, under the said agreement she had received a duly signed blank cheque of this accused from his sister Smt. Parvathamma for the security of the remaining amount of 12 CC No. 23236/2014 Rs.5,00,000/-. She denined the suggestion that till this date she had not executed the said registered consent deed as agreed by her in Ex.D.4 document in favour of Smt. Parvathamma and as such she is not entitle to claim the remaining amount of Rs.5,00,000/- from Smt/Parvathamma. She admitted the suggestion that, she had already filed a Civil Miscellaneious case before the Anekal Court in C.Misc. No.11/2013 for restoration of the suit filed in O.S.No.864/2012 and the said suit is still pending adjudication before the said court.
16. Even accordingly to PW1, the suit filed by her in O.S.No. 864/2012, this accused is neither a party to the proceedings nor he entered into any agreement with her during the pendency of this suit. Likewise, is it not the case of PW1 that, this accused by admitting the liability of her sister Smt. Parvathamma, issued his cheque by entering into an agreement with her. Admittedly, as I have discussed supra, PW1 herself in her cross-examination categorically admitted that she has not produced the case papers relating to O.S.864/2012, to fix the liability of the accused towards the cheque amount. The Ex.D.1 13 CC No. 23236/2014 document does not discloses that, the complainant herein has also sought relief against this accused in the said proceedings. Admittedly in Ex.D.1 this accused is neither a party to the proceedings nor any relief was sought against him. In such situation, the testimony of the PW1 that this accused is liable for the Ex.P.1 cheque amount cannot be acceptable and it holds no merit. Even in Ex.D.2 the PW1 herein has not stated that, this accused has taken the liability of her sister Sm.t Parvathamma and on her behalf he entered into an agreement with this PW1 and she after the receipt of the cheque of this accused, got withdrawn the suit filed by her in O.S.864/2012. Though PW1 in her cross-examination stated that she without knowing the contents of Ex.D.1 documents put her signature to Ex.D.4 at the time of withdrawing the suit filed in O.S.No.864/2012. However, admittedly this court has no jurisdiction to adjudicate the issue relating to Ex.D.4 document nor this court has jurisdiction to direct the parties to prove the execution of Ex.D.4 document. Even according to PW1 she has already filed Civil Miss. Petition before the learned Sr.Civil Judge Anekal in C.Miss.No.11/2013 praying for restoration of 14 CC No. 23236/2014 the suit filed in O.S.864/2012 and the said proceedings is still pending for adjudication before the said court. In such situation, the case of the complainant that this accused on behalf of her sister Smt. Parvthamma, had persuaded her for settlement in O.S.864/2012 and he under the settlement issued his Ex.P.1 cheque and he is liable to pay the cheque amount cannot be acceptable and it holds no merit.
17. Even though the accused has admitted his Ex.P1 cheque, he has categorically denied the fact that he in order to settle the suit filed in O.S.NO.864/2012 on behalf of his sister Smt. Parvathamma, had issued his Ex.P1 for Rs.5,00,000/-. In such situation, the burden is heavily on this PW1 to prove the fact that, this accused is liable to pay the cheque amount even though he was not a party to the said proceedings and even he has not executed any document in her favour by admitting his liability to pay the amount settled by his sister Smt. Parvathamma, with this complainant. In order to prove this fact, the PW1 except adducing the oral evidence that, this accused is liable for the cheque amount, has not chosen to 15 CC No. 23236/2014 prove the same by adducing documentary evidence before this court.
18. Admittedly, there was no any direct financial transaction in between this complainant and the accused and even there was no any legally dischargeable debt or liability on this accused towards the complainant as on date of Ex.P.1 cheque. In such situation, the burden is heavily on this PW1 to prove that, even though there was no legally dischargeable debt or other liability on him to pay the cheque amount but still he is liable to pay the cheque amount to her and he by admitting his liability has issued his Ex.P.1 cheque in her favour. In such situation, without any evidence before this court, it is not possible to believe the testimony of PW1 that as on date of Ex.P1 cheque, there existing a legally recoverable debt or other liability on this accused and he by admitting his liability & in order to discharge his liability, had issued his Ex.P1 cheque.
19. Admittedly, the PW1 has not chosen to produce any piece of document before this court to prove that this accused is 16 CC No. 23236/2014 liable for the settlement of O.S.864/2012 and he in order to discharge his liability had issued his Ex.P.1 cheque. In such situation the very complaint filed by the complainant against this accused for the offence punishable U/s.138 of NI Act is not maintainable and it holds no merit.
20. No doubt the accused in order to prove her defence has not chosen to led her evidence before this court. On the contrary, admittedly, the initial burden is always on this Complainant to prove the existence of legally recoverable debt or other liability as on date of Ex.P1 on this accused and to prove that the accused in order to discharge his liability , had issued her Ex.P1 cheque and the same was bounced. Merely because the accused has not chosen to led any evidence from his side before this court to prove defence, it does not become automatic that the Complainant has proved her case beyond all reasonable doubts to the satisfaction of the court. As I have discussed supra, the Ex.D.1 to D.4 documents falsify the testimony of PW1 and it will rebut the presumption available to this complainant U/s.139 of N.I Act.
17 CC No. 23236/2014
21. Even though the accused has not led his evidence from his side to prove his defence, however the entire burden is on this Complainant to prove her case and to prove that the accused is liable to pay the cheque amount as on date of Ex.P1 cheque. The initial burden is always on this Complainant to prove her case on the strength of her own evidence. Unless the Complainant discharge her burden, the burden will not shift on this accused to rebut the presumption available to this Complainant u/Sec.139 of N.I. Act. Moreover, it is well settled principle of law the accused need not prove his defence beyond all reasonable doubts to the satisfaction of the court. The accused can very well discharge his burden by preponderance of probabilities even by cross-examining PW1 by eliciting the truth from her mouth. Here in this case, the accused by cross- examining PW1, has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act.
22. It is well settled principle of law that the presumption u/Sec.139 of N.I. Act is available to this Complainant only with respect to issuance of cheque for repayment of debt or other liability by this Accused. However, the burden is on this 18 CC No. 23236/2014 Complainant to prove the existence of debt or other liability as on date of Ex.P.1 cheque to the satisfaction of the court.
23. Here in this case, the Complainant except adducing the oral evidence that she is entitled to recover the cheque amount from the hands of this accused as on date of filing of the complaint and this accused in order to discharge his liability to settle the amount of O.S.864/2012, had issued his Ex.P1 cheque for Rs.5,00,000/- and the same was bounced on its presentation and even after receipt of Legal Notice, the accused has failed to make payment of the cheque amount, has utterly failed to prove that as on date of issuance of cheque, the accused was liable to pay the cheque amount.
24. The learned Counsel for the Complainant has vehemently argued before this court that, this accused by persuading the matter, filed in O.S.864/2012 on behalf of his sister Smt. Parvathamma entered into compromise with this complainant and under the terms of settlement he himself has given his Ex.P.1 cheque in favour of this complainant and the same cheque was bounced on its presentation for encashment 19 CC No. 23236/2014 and even after receipt of legal notice the accused neither chosen to make payment of the cheque amount nor he has sent his reply, by denying the transaction and therefore, by drawing an adverse inference against the accused he has to be convicted in accordance with law, is not convinced this court and it holds no merit. As I have discussed supra, the accused is neither a party to the proceeding filed in O.S.No.864/2012 by this complainant nor he has entered into any agreement with this complainant to settle the matter in O.S.No.864/2012 on behalf of his sister Smt. Parvathamma. In such situation, holding this accused guilt for the offence punishable U/s.138 of N.I Act does not arise.
25. However, the learned Counsel for the accused has vehemently argued that there is no burden on this accused to prove his defence beyond all reasonable doubts. He has argued that the accused can very well discharge his burden by preponderance of probabilities and even by cross-examining PW1 by eliciting truth from his mouth. He has argued that the very complaint filed by this complainant against this accused is not maintainable, and this complainant only with an intention 20 CC No. 23236/2014 to harass this accused, has filed this false complaint by making false allegations against this accused. He has argued that, this accused is neither related to O.S.No.864/2012 nor he is party to the proceedings nor he has entered into any settlement with this complainant in the said case and even he has not issued the said cheque in favour of this Complainant towards discharge of his liability on behalf of his sister by admitting her liability. He has argued that the very complainant filed for the offence punishable U/s.138 of N.I Act against this accused is not maintainable. He further argued that, the complainant has not chosen to produce any piece of document before this court to prove the existence of debt or other liability on this accused as on date of Ex.P1 cheque. He argued that the PW1 has utterly failed to prove that this accused by admitting his liability to pay the settlement amount of his sister had issued his Ex.P.1 cheque for Rs.5,00,000/- in a proceedings filed in O.S.864/2012 & he entered into a compromise with this complainant on behalf of his sister and therefore, this accused is liable for the cheque amount, by adducing cogent and convincing evidence before this court. The arguments canvassed by the learned Counsel 21 CC No. 23236/2014 for the accused, is fully convinced this court and therefore, it is accepted.
26. As I have discussed supra, the Complainant except adducing the oral evidence that the accused is liable to pay the cheque amount, has totally failed to prove her case by adducing documentary evidence before this court to the satisfaction of the court. Merely because, the accused has not led his evidence before this court, it does not become automatic that the Complainant has proved her case beyond all reasonable doubts to the satisfaction of the court.
27. As I have discussed supra, the Complainant has utterly failed to prove his case and to prove that this Accused has committed an offence punishable u/Sec.138 of N.I. Act. The oral and documentary evidence adduced before this court by the Complainant is not sufficient and convincing to bring home the guilt of the Accused beyond all reasonable doubts. The entire burden is on this Complainant to bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. Unless the Complainant is discharge her initial burden, no burden will shift on this Accused to rebut the 22 CC No. 23236/2014 presumption available to this Complainant u/Sec.139 of N.I Act. The Complainant has utterly failed to prove that the Accused has committed an offence punishable u/Sec.138 of N.I. Act and therefore he is liable for punishment. In such situation, the benefit of doubt goes in favour of this Accused. Hence, by taking into consideration of the facts and circumstances and evidence available on record, I answer Point No.1 in the Negative.
28. Point No.2: In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable u/s.138 of N.I. Act.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 4th day of August, 2016) (ISHRATH JAHAN ARA) XIX A.C.M.M., BENGALURU.23 CC No. 23236/2014
ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Smt. Yashodha Witnesses examined on behalf of the Accused: NIL Documents marked on behalf of the Complainant:
Ex.P.1 Cheque
Ex.P.2 Bank Endorsement
Ex.P.3 Copy of Legal Notice
Ex.P.4 Postal Receipt
Ex.P.5 Postal acknowledgement
Documents marked on behalf of the Accused:
Ex.D1 Plaint copy of O.S.No.864/2012
Ex.D.2 Cc of the Memo of Dismissal
Ex.D.3 Cc. of the order sheet in O.s.No.864/2012
Ex.D.4 Agreement
XIX ACMM, B'lore.
24 CC No. 23236/2014