Bangalore District Court
M/S.E Infrastructure & vs Sri Srinivasa T on 28 September, 2018
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this the 28th day of September , 2018
Present: Smt Shirin Javeed Ansari -BA LL.B(Hon's)LL.M
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No.17090 /2015
Complainant: M/s.E Infrastructure &
Entertainment (India) Pvt Ltd,
Director
Sri C B Narayanaswamy
S/o.Muniswamappa
aged 50 years
No.36, SM Arcade
Jakkur Main Road
Amruthahalli, Bangalore 92.
(By Sri. P.V.K)
- Vs -
Accused: Sri Srinivasa T
aged 36 years
Proprietor
M/s.Sri Hari Cable Network
R/at.Mallimakalipura
Begur Post
Hosakote Taluk
Bangalore Rural.
(By Sri MVNR Advocate )
Offence complained of: U/s.138 of Negotiable Instruments
Act.
Plea of accused: Pleaded not guilty.
Final Order: Accused is Acquitted.
Date of Judgment: 28.9.2018.
2 C.C.No.17090/2015
JUDGMENT UNDER SEC.355 OF CR.PC
The complainant filed this complaint under
Sec.200 Cr.P.C. against the accused for the offence
punishable under Sec.138 Negotiable Instruments Act
(Herein after called as N.I.Act).
2. The case of the prosecution is as under :
The complainant are the MSO ( Multi System
Operator ) providing TV Signals to local cable operators
and the accused is the local cable operator in the name
and style M/s.Sri Hari Cable network .
It is further submitted that, the accused placed
purchase order for set top boxes. As per the said order,
the complainant supplied 470 set top boxes which
amounted to Rs.7,05,000/-. For having supplied 470
set top boxes, the accused has issued a cheque bearing
No.956113 dt.24.2.2015 drawn on State Bank of India ,
Hoskote Branch, in favour of the complainant. It is
submitted that the accused had issued the said cheque
in discharge of legal liability and the accused had
assured the complainant that the said cheque will be
honored on presentation .
3 C.C.No.17090/2015
3. It is further submitted that, the said cheque
was presented by the complainant on 19.5.2015 for
realization through, its banker i.e Corporation Bank,
Sahakarnagar branch, Bangalore . But, the said cheque
returned dishonored with shara "Funds Insufficient",
dt.20.5.2015 . Hence, the complainant issued legal
notice, dt.27.5.2015 through, RPAD . The notice, sent to
the accused has not been returned. Hence, the
complainant lodged a complaint on 18.6.2015 to the
post office and the concerned post office has not replied.
Hence, notice was duly served.
4. The accused inspite of service of notice has not
paid cheque amount . The accused has not even replied
to the same. Hence, the complainant have complied
with the provisions of Sec.138 of Negotiable Instrument
Act.
5. It is further submitted that, the accused has
issued the cheque in question to the complainant
towards discharge of the amount knowing fully well
that the cheque would not be honored , hence,
committed an offence punishable u/s.138 Negotiable
Instrument Act . Hence, this complaint.
4 C.C.No.17090/2015
6. The complainant has lead his pre summoning
evidence and has filed his affidavit in lieu of Sworn
Statement. Prima-facie a case has been made out
against the accused and he has been summoned vide
order of this court.
7. The accused appeared before this court on
19.3.2016 and he has been enlarged on bail. The
substance of accusation has been read over to him to
which, he pleaded not guilty and claims to be tried.
8. In his post summoning evidence the
complainant has examined PW 1 and filed his affidavit,
wherein, he has reiterated the averments made in the
complaint and got marked Ex.P.1 to ExP.7.
9. The statement of accused u/s.313 Cr.P.C has
been recorded. The accused denied the incriminating
circumstances found against him. The accused got
examined as DW 1 .
10. Heard the arguments canvassed by the learned
counsels for the complainant and the accused.
11. Upon hearing arguments, the following points
arise for my consideration:
1. Whether the complainant proves
that the accused has committed
5 C.C.No.17090/2015
an offence punishable u/s. 138
Negotiable Instrument Act ?
2. What order.
12. My answers to the above points are as under:
Point No.1 : In the Negative.
Point No2 :As per final order for the
Following:
REASONS
13.Point No.1 : The complainant are the MSO (
Multi System Operator ) providing TV Signals to local
cable operators and the accused is the local cable
operator in the name and style M/s.Sri Hari Cable
network .
It is further submitted that, the accused placed
purchase order for set top boxes. As per the said order,
the complainant supplied 470 set top boxes which
amounted to Rs.7,05,000/-. For having supplied 470
set top boxes, the accused has issued a cheque bearing
No.956113 dt.24.2.2015 drawn on State Bank of India ,
Hoskote Branch, in favour of the complainant. It is
submitted that the accused had issued the said cheque
in discharge of legal liability and the accused had
6 C.C.No.17090/2015
assured the complainant that the said cheque will be
honored on presentation .
14. It is further submitted that, the said cheque
was presented by the complainant on 19.5.2015 for
realization through, its banker i.e Corporation Bank,
Sahakarnagar branch, Bangalore . But, the said cheque
returned dishonored with shara "Funds Insufficient",
dt.20.5.2015 . Hence, the complainant issued legal
notice, dt.27.5.2015 through, RPAD . The notice, sent to
the accused has not been returned. Hence, the
complainant lodged a complaint on 18.6.2015 to the
post office and the concerned post office has not replied.
Hence, notice was duly served.
15. The accused inspite of service of notice has
not paid cheque amount . The accused has not even
replied to the same. Hence, the complainant have
complied with the provisions of Sec.138 of Negotiable
Instrument Act.
16. It is further submitted that, the accused has
issued the cheque in question to the complainant
towards discharge of the amount knowing fully well
that the cheque would not be honored , hence,
7 C.C.No.17090/2015
committed an offence punishable u/s.138 Negotiable
Instrument Act .
18. It is the defence of the accused that he
knows the complainant company as she was doing cable
operating business with the complainant by hiring the
telecasting of channels. He has paid upto date charges
to the complainant and he is not due of any amount
towards the supply of the set top boxes alleged by the
complainant. He has not purchased any set top boxes
from the complainant as alleged in the complaint. The
company has not supplied anything to the accused. He
used to pay the subscription amount to the complainant
by way of cheques as well as cash. Sometimes, the
accused used to give blank signed cheques leaving the
amount column due to variation of subscription charges
from month to month. In view of change of business
with the complainant , having vengeance towards the
accused the complainant misused one of the cheques
and filed this complaint through one of the Directors of
the complainant company. The complaint itself is
defective one. The person who filed the complaint as well
as deposed is not having any proper authority given by
the company to him in the manner known to law. The
8 C.C.No.17090/2015
accused has not issued the cheque in question towards
any legally recoverable debt. The complainant taking
advantage of the blank signed cheques issued by the
accused while he was paying the subscription charges
as stated above has misused the same and filed false
case.
19. The accused further contended that he is not
served with the notice as alleged to have been issued by
the complainant. Hence, on all these, grounds the
accused prays to dismiss the complaint.
20. In support of his case PW 1 and got marked
Ex.P.1 to Ex.P.7. Ex.P.1 is the Memorandum and
Articles of Association, Ex.P.2 is the authority letter.
Ex.P.3 is the cheque in question bearing No 956113
dt.24.2.2015 for Rs.7,05,000/- . Ex.P.3(a) is the
signature of the accused . Ex.P.4 is the cheque return
memo dt.20.5.2015. Ex.P.5 is the legal notice dt.
27.5.2015 . Ex.P5(a) is the postal receipt. Ex.P5(b) is
the complaint lodged before the post master
Srirampuram, Bangalore for non receipt of RPAD
acknowledgement. Ex.P5(c) is the reply. Ex.P5(d) is the
postal cover. Ex.P.6 is the copy of the STB transfer note.
Ex.P.7 is the Certified copy of the ledger account extract.
9 C.C.No.17090/2015
21. In order to substantiate his defence , the
accused has not produced any documents .
22. During the arguments, learned counsel for
the complainant has vehemently argued before the
court that the complainant company is the MSO Multi
System Operator )proving TV signals to the local cable
operators. The accused being subscriber, had
purchased set top boxes from the complainant . That
towards payment of set top boxes, the accused issued
the cheque in question which was bounced for the
reason "Funds Insufficient", Hence, the complainant
has issued legal notice to the accused which is duly
served on the accused on 28.5.15. But, the accused has
not replied to the said notice. The accused admits
issuance of cheque, but contends that he issued the
blank signed cheque to the complainant . Though
accused had opportunity to reply to the notice, but, he
has not done so. Hence, the accused has deliberately
issued the cheque and failed to arrange for honoring of
the same. Therefore, the act of the accused amounts to
an offence punishable u/s.138 Negotiable Instrument
Act . Hence, the learned counsel for the complainant
10 C.C.No.17090/2015
prayed to convict the accused person and to award
compensation to the complainant .
23. Further, Learned counsel for the accused
vehemently argued before the court that PW 1
claims to be Director of the complainant company. But,
in the verification column , it is mentioned that
Managing Director , has signed the same. In the affidavit
filed in lieu of examination-in-chief, it is stated that PW1
is the Managing Director . But in cross examination, it
is stated that one Mr. Somashekara is the Managing
Director. Hence, PW 1 has filed false affidavit before
the court .
24. It is further submitted by learned counsel for
the accused that the complainant has produced Ex.P.2,
the authorisation letter given by the Managing
Director. The date mentioned in the said letter is
26.5.2015 . The complaint is being lodged on 9.7.2015.
On the date of filing of the complainant PW 1 was not
the Managing Director . As per Sec. 291 of the
Companies Act, any one of the Directors should be
empowered to file the case. During this arguments,
learned counsel for the accused referred the decision
reported in 2015 (2) KCCR 1476 wherein it is held :
11 C.C.No.17090/2015
138 and 142 of Negotiable Instrument
Act, - conviction - challenge to the
complaint on behalf of the company -
Prosecuted by person not duly
authorised to do so. though it was
shown that person who has prosecuted
complainant was said to have been
acting under a power of attorney
executed by chairman of board of
director, he was not authorised to
represent the company in manner
known to law, Therefore, proceedings
stood vitiated.
25. The learned counsel for the accused has
argued before the court that what the complainant is
claiming is not a legally recoverable debt the
complainant has failed to do it. The complainant has
taken up specific stand that he has supplied the
materials worth Rs.7,05,000/- , hence, towards the
discharge of the said liability, the accused issued the
cheque in question . But no purchase order is being
placed in this case. Admittedly, the complainant
company is registered company. Contrary to that the
complainant have taken up contention in the present
case. The case set up by the complainant in the cross
examination is that the accused has purchased the set
top boxes worth Rs.14,10,000/- and the accused has
paid part amount. But, the case set up by the
12 C.C.No.17090/2015
complainant in his complaint is something different .
What is stated during the cross examination has not
been pleaded by the complainant in his complaint. The
complainant has produced Ex.P.6, wherein the number
of set top boxes is 510 and the amount is Rs.7,53,000/-.
Therefore, the document appears to have been created in
order to suit the claim made in the complaint.
Admittedly Ex.P.6 is not the invoice and it is not issued
for commercial transaction. When Ex.P.6 is not relating
to the commercial transaction, then the complainant
cannot rely on the document to claim the legally
enforceable debt . Therefore, when there is no legally
recoverable debt, there cannot be sale transaction. The
complainant has absolutely failed to produce the audit
report in connection to said transaction.
26. During the course of arguments, learned
counsel for the accused referred the decision reported
in 2009 Crl L.J. 3777 in between Sanjay Mishra
V/s. Ms Kanishka Kapoor @ Nikki and anr wherein it
is held that :
"Presumption as to legally enforceable
debt - Rebuttal of - Amount advanced by
the complainant to the accused was
large amount not repayable within few
months. Failure by the complainant to
13 C.C.No.17090/2015
disclose the amount in his income tax
returns or books of accounts - Sufficient
to rebut the presumption u/s.139" .
27. Further learned counsel for the accused
argued that PW 1 has clearly admitted in his cross
examination that audit report has not been produced
by them. PW1 has further admitted that they audit the
account based on the invoices. But at the same time,
PW 1 also admits that no invoices are given to the
accused person .
28. The learned counsel for the accused further
argued that during the cross examination it is clearly
stated by the complainant / PW 1 that the cheque, is
dt.24.2.2015 and the date of payment is 20.5.2015
almost after 3 months. The ledger account extract has
been produced by the complainant and the same is not
issued by appropriate authority.
29. At the time of arguing the same the learned
counsel for accused referred to the decision reported in
AIR 2017 SC 540 Between Common Causes ( A Reg.
Society )and others v/s.Union of India & Ors, wherein
it is held that :
"Evidence act - Sec.34 - Entries in
books of account - Admissibility -
14 C.C.No.17090/2015
Entries in loose papers/ sheets-Not
admissible.
30. The learned counsel further argued that there
is difference of ink in the cheque in question the
complainant has failed to provide explanation to that
effect. The complainant has failed to furnish any
documents pertaining to the transaction. Therefore, the
case of the complainant is not believable one.
31. The learned counsel for the accused also
referred the decision reported in 2017(4) AKR 451 in
between Vijaylaxmi v/s. Mohammed Pash wherein it is
held that :
"Negotiable Instrument Act, (26 of
1881) Sec. 138 dishonor of cheques, the
cheque allegedly issued by the accused
for payment of money towards purchase
of cement. Non production of bill of
material supplied - Entry in respect of
supply of goods in ledger found
suspicious - Ledger book not audited by
qualified auditor - Alleged transaction
not proved - Acquittal proper".
32. The learned counsel further referred the
decision reported in 2010 (3) KCCR 1950 in between
Amzad Pasha V/s.H.N.Lakshmana wherein it is held
that:
"Negotiable Instrument Act 1881 -
Sec,138 code of Criminal procedure
1973 - 200 - Mysore General Clauses
15 C.C.No.17090/2015
Act 1899 - Sec. 27 demand for
payment of dishonor of cheque -
Notice, sent by RPAD not served
posting was not properly addressed -
Cannot be deemed service of notice.
Not complied with the provisions of
Sec.138of Negotiable Instrument Act".
The learned counsel further argued that the
decisions referred to above are very much applicable to
the case on hand . Hence relying on all these decisions,
learned counsel for the accused prayed to dismiss the
complaint.
33. Before embarking upon other aspects of the
matter I would like to go through, the oral evidence lead
by both the sides.
34. PW1 Mr.C.B.Narayana Swamy S/o.
Muniswamappa is examined as Pw 1. This witness has
produced the Articles of Association of the complainant
company, wherein he has also been arrayed as one of
the Directors Further he has also produced the
authorisation letter authorising to prosecute the present
case executed by another Director of the company Sri
Somashekara . These documents have been marked
before the court without any objections by the accused
and their counsel. PW 1 is subjected to cross
16 C.C.No.17090/2015
examination wherein PW 1 has admitted that he knows
the accused for 4 years.
35. During the course of cross examination Pw 1
has clearly admitted that Hari cable networks is situated
in Mallimakanapura village. But on perusal of the
notice, issued by the complainant against the accused
person it is found that the complainant has addressed
the notice, to Mallimakalipura village. For this aspect of
the matter , the complainant has no any explanation
from his side. It is only deposed that what ever address
furnished by the accused person for the said address
they have issued the legal notice. The complainant PW 1
has failed to state the date of the issuance of notice to
the accused person . He is not even aware the said notice
is duly served on the accused or not.
36. It is further clearly admitted by PW 1 that
their accountant has given details to their counsel to
lodge the complaint. This aspect of the matter shows
that the complainant has no any information regarding
the case. Having admitted this aspect of the matter the
complainant has not even taken any trouble to examine
the said accountant in this case. It is also admitted that
said accountant is not authorised to give any details
17 C.C.No.17090/2015
pertaining to this case to the counsel. PW 1 has clearly
admitted before the court that the postal
acknowledgement for having served the notice to the
accused is with their counsel. But, no such
acknowledgement is produced before this court.
37. It is further submitted by PW 1 before the
court that it is his belief that the accused has not
claimed the said notice. But, absolutely no grounds or
basis are provided by the complainant to depose so
before this court.
38. PW1 himself has clearly admitted in cross
examination that they raise invoices for the transaction
dealt by them pertaining to the cable TV and internet
broad bands. If at all they deal in any set top boxes with
the operators they do not raise any invoice but the same
would be mentioned in the delivery challans . But
absolutely no such documents are produced before this
court. Absolutely there are no documents before the
court on the side of the complainant to show that they
have supplied the set top boxes to the accused person .
The complainant / PW 1 has shown his ignorance even
in this regard. Though PW 1 has clearly admitted that
the accounts are duly audited every year but failed to
18 C.C.No.17090/2015
produce any returns or auditing report for the year
2015-16 mentioning the transaction with the accused
person . Absolutely no documents are produced by the
complainant to show that they have supplied set top
boxes to the accused person . PW 1 has even failed to
depose about the number of set top boxes , the date of
supply of the same to the accused person . Therefore,
looking to all these aspects, and the various admissions
made by the complainant in cross examination, it goes
to show that the complainant has failed to give the
transaction details before the court. The complainant
has no knowledge of the facts in the present case. The
complainant have failed to produce the material
documents before the court in order to prove the supply
of alleged set top boxes to the accused person .
39. Another defence , raised by the accused
person is that the cheque in question bears different
inks in the writing. The name of the complainant
company, i.e Infrastructure and Entertainment India
Pvt Ltd, is written in one ink and the amount in
figures and in numbers, the date of the cheque has been
written in another ink. This aspect of the matter has
been admitted by PW 1 and further has voluntarily
19 C.C.No.17090/2015
admitted that said details have been written by their
company collector. Most interestingly, Pw 1 has clearly
admitted in cross examination that Ex.P.6 produced by
him in this case is not the invoice. Therefore, this
document cannot be taken into consideration against
the accused person On perusal of Ex.P.6 it is found
that it is SBT transfer note of the complainant company
wherein the name of Srinivasa is mentioned. But, the
SBT transfer note cannot be the sole document to record
the conviction against the accused person . No doubt
the complainant has produced the ledger extract at
Ex.P.7. But that has not been issued by the certified
Auditor. Absolutely the document is not supported by
any certification. Therefore, in absence of such
certification by the qualified Auditor, no weightage can
be given to this document. If at all the complainant have
audited the accounts the alleged transactions should
have been entered into their returns. But the
complainant has failed to produce any such returns
before the court. Non production of the returns and
other material documents itself is sufficient to
disbelieve the case of the complainant
20 C.C.No.17090/2015
40. No doubt the complainant has produced,
Ex.P.3, the cheque in question. But, the accused has
not denied the issuance of cheque in question to the
complainant. It is clearly stated by the accused that
cheque in question was issued only for the purpose of
security towards the subscription amount which the
complainant used to fill subsequently for encashment of
the subscription amount. But, the cheque in question
has been misused by the complainant . Therefore,
under these circumstances, when the accused has
denied the issuance of the cheque to an amount of
Rs.7,05,000- in favour of the complainant , he has
sufficiently raised doubt in the minds of the court .
Further in view of non production of the invoice and
other material documents before this court , the
complainant has failed to prove the transactions
entered into between the complainant and the accused
to the tune of Rs.7,05,000/-.
41. No doubt u/s.139 of Negotiable Instrument
Act, the presumption is required to be drawn that the
holder of the cheque has received the same for discharge
of any debt or other liability. As held by the Honble
Supreme Court in Krishna Janardhan Bhat v/s.
21 C.C.No.17090/2015
Dattatreya Hegde reported in 2008 AIR SCW 738
(AIR 2008 SC 1325) the presumption u/s.139 of
Negotiable Instrument Act, would not extend as to the
existence of debt or other liability. Of course as per
clause (a) , of Sec.118 of Negotiable Instrument Act, it
has to be presumed that every Negotiable Instrument
was made or drawn for consideration and that every
such instrument when it has been accepted , endorsed,
negotiated or transferred for consideration and as per
clause (b) it shall be presumed that every Negotiable
Instrument bearing a date was made or drawn on such
date. Both these presumptions are rebuttal
presumptions as held by Hon'ble Supreme Court in
aforesaid decision . The questions as to whether these
presumptions have been rebutted or not have to be
considered by looking to the material on record and it is
not necessary for the accused to prove his defence
beyond reasonable doubt, nor he is required to step
into the witness box to prove his defence .
42. In the case on hand, it is the specific defence
of the accused that though there was transaction,
entered into between the complainant and the accused
pertaining to the payment of subscription amount, the
22 C.C.No.17090/2015
accused used to give the cheques to the complainant for
the purpose of subscription amount. Depending upon
the days in the month the complainant used to get the
cheques filled. At any point of time the cheque was not
issued for discharge of debt and liability as stated in
the complaint. No documentary evidence are produced
by the complainant to show that he has the stock of
those many set top boxes.
43. In the absence of any evidence placed by the
complainant , it is highly difficult to believe that he had
supplied the set top boxes of such an amount as
mentioned in the complaint. In addition to this except
the cheque in question there is no documentary evidence
to show that the complainant had supplied the set top
boxes to the accused. Absence of such documentary
evidence would create great amount of doubt about the
geniuses of the transaction. All these circumstances ,
are sufficient to hold that the defence of the accused is
highly probable and that the accused has rebutted the
presumption u/s.139 of Negotiable Instrument Act.
Therefore, under these circumstances, the court is of the
opinion that the case of the complainant is surrounded
by suspicion and the defence of the accused has raised
23 C.C.No.17090/2015
doubt on the very case of the complainant . Further the
complainant has absolutely failed to explain the said
doubt raised in the mind of the court. Therefore, the
benefit of such doubt must go to the accused. Hence, I
answer Point No.1 in the Negative.
44. Point No.2: In view of the reasons stated and
discussed above, the complainant has miserably failed
to prove the guilt of the accused punishable u/s.138
Negotiable Instrument Act. Hence, I proceed to pass the
following :
ORDER
Exercising the powers conferred upon this court u/s.255(1) Cr.P.C., the accused is hereby Acquitted of the offence punishable under Sec.138 Negotiable Instrument Act. The bail bond of the accused person and that of the surety if any stand cancelled.
(Dictated to the Stenographer directly on the computer, typed by her , corrected and signed then pronounced by me in the open court on this the 28th day of September, 2018).
( SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.
24 C.C.No.17090/2015ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
PW1 : C.B.Narayanaswamy.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P1 : Memorandum and Articles Of Association, Ex.P2 : Authority letter Ex.P3 : Cheque.
Ex.P3(a) : Signature of the accused. Ex.P4 : Cheque return memo.
Ex.P5 : Legal notice.
Ex.P5(a) : Postal Receipt.
Ex.P.5(b) : Complaint.
Ex.P.5(c) : Reply.
Ex.P5(d) : Postal Cover
Ex.P6 : Copy of STB Transfer note.
Ex.P7 : CC of ledger account extract.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
DW1 : T.Srinivasa.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
Nil.
( SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.25 C.C.No.17090/2015