Bangalore District Court
No.11/2A 1St A Main vs Akshya International No.19 on 7 April, 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 7TH DAY OF APRIL 2021
PRESENT: SRI.R.MAHESHA. B.A.,L, LLB.,
XXIV ADDL. SCJ &
ACMM & MEMBER - MACT
BENGALURU.
1. Sl. No. of the Case CC.No.4897 of 2015
2. The date of 06-06-2017
commencement of
evidence
3. The date of closing 06-02-2021
evidence
4. Name of the Shivasharan
Complainant No.11/2A 1st A main,
3rd B cross,
Nanjappa layout,
Vidyaranyapuram,
Bangalore.
(By Sri.H.R.D.-Advocate)
5. Name of the B.R.Arunkumar,
Accused Akshya International No.19,
8th main road,
Central Excise layout,
Vijayanagar,
Bangalore-040.
(By Sri.J.D.K.-Advocate)
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.4897 OF 2015
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JUDGMENT
The complainant filed this complaint Under Section 200 of Cr.P.C against the accused alleging that the accused has committed the offence punishable Under Sec.138 of the Negotiable Instruments Act, 1881. (In short for N.I.Act)
2. The brief facts of the complainant case is as under:
The accused had approached the complainant during the month of March 2012 and requested to do the investment for his office business in and around Bangalore and other places of the accused and the complainant agreed for the invest the amount which was done as per the mutual understanding and also one agreement accused were due to complainant for Rs.3,00,000/- .That inspite of several months the accused did not repay the said amount due by him and after several demands and request from the complainant the accused issued one cheque of Rs.3,00,000/- bearing No.103464 drawn on State Bank of India, Vijayanagar, Bangalore. The complainant presented the said cheque to the bank, but the said cheque was dishonoured and 3 C.C.No.4897 OF 2015 SCCH-26 this fact brought to the accused notice through phone call, the accused requested the complainant to give back that cheque and promised to issue fresh cheque and arrange for money accordingly the complainant return that cheque and requested accused to issue fresh cheque but accused did not issued fresh cheque but changed the date to 30-09-2014 instead of 25-2- 2014 and put signature on the same cheque and requested to put the bank on first week December 2014. The complainant presented the said cheque to the bank, but the said cheque returned on 8-12-2014 with the endorsement "Insufficient Funds". The complainant issued a legal notice on 02-01-2015 calling upon the accused to make an arrangement repay the amount covered in the cheque, but neither the accused has replied the notice nor made payment of the amount due. Hence filed this complaint.
3. Initially the preset case presented before 42nd ACMM, Bengaluru on 13-02-2015. After filing of this complaint, case was registered as P.C.R. and sworn statement of the complainant was recorded. Thereafter cognizance was taken and registered in Crl.Reg.No.III and summons issued to the 4 C.C.No.4897 OF 2015 SCCH-26 accused. In response of summons, accused appeared through his counsel and got enlarged on bail. The plea was recorded, read over and explained to accused, he pleaded not guilty and claims to be tried. Hence the case is posted for complainant evidence. Thereafterwards as per notification No.ADM 1/19/2017 dated 20-11-2017 of CMM, Bengaluru, this case transferred to 24th Addl.Small Cause Judge and 22nd ACMM, Small Cause court hall 26 (SCCH-26) Bengaluru.
4. In order to establish his case, complainant himself examined as PW-1 and got marked 4 documents as Ex-P1 to 4 and closed her side.
5. On perusal of the entire ordersheet, it reveals that the present accused was convicted by this court on 24-03-2018. The accused preferred appeal before LXV Addl.City Civil and Sessions Judge, Bangalore in Crl.Appeal No.831/2018. After hearing both side arguments, the said appeal was disposed by Hon'ble 65th Addl.City Civil and Sessions Judge, Bangalore on 26-6-2019. The judgment passed by this court dt.24-03-2018 is set-aside by the 65th Addl.City Civil and Sessions Judge, Bangalore city. Further appellate court ordered and remitted 5 C.C.No.4897 OF 2015 SCCH-26 back to this court restore the case in original CC number and proceed further trial from the stage of cross examination of PW-1 and further appellate court directed and ordered that both parties are hereby directed appear before the trial court on or before 12-07-2019 without waiting for fresh notice or summons from the trial court. Further appellate court directed to accused has to proceed with the cross examination of PW-1 without seeking adjournment on flimsy grounds. So judgment passed by this court on 24-03-2018 set-aside by the competent court of law. As per the direction of Appellate court, accused and his counsel present before trial court. The complainant and counsel remained absent. This court provided sufficient time to PW-1 to tender for cross examination, but PW-1 remained absent. Hence this court ordered as PW-1 was not tender for cross examination and further proceed with the case in accordance with law i.e., Accused statement U/s 313 recorded. Accused denied all incriminating circumstances appears against him and claims to be lead evidence. In order to disprove the case of the complainant accused himself orally examined as DW-1 and 6 C.C.No.4897 OF 2015 SCCH-26 produced Ex-D1. He subjected cross examination by complainant and closed his side.
6. Heard the argument by the learned counsel for complainant and accused. The learned both counsel have submitted written arguments.
7. Upon hearing the arguments and perusal of the material placed on record, the following points arise for my consideration :-
POINTS
1. Whether the complainant has made-out the case that the accused has issued a cheque bearing No.103464 for sum of Rs.3,00,000/- to discharge the legally enforceable debt or liability due to the complainant and on presentation of cheque it was returned without encashment with an endorsement as "Insufficient funds'' and accused failed to make any payment within the stipulated period and thereby accused had committed an offence punishable under section 138 of N.I Act?
2. What order?7 C.C.No.4897 OF 2015
SCCH-26
8. My answer to the above points is as follows :-
Point No.1 : In the Negative Point No.2 : As per final order for the following :-
REASONS
9. POINT NO.1 :- The provision of Section 101 of the Indian Evidence Act provide that the burden of proof rests on the party who substantially asserts it and not on the party who denies it, in fact burden of proof means that a party has to prove an allegation before he is entitle to a judgment in her favour. Further law U/s 103 of Indian Evidence Act amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the fact in issue.
10. The burden lies on the complainant to prove the complainant complied with mandatory requirements of Section 138 of NI Act.
The three ingredients of offence U/s 138 NI Act are as under.
1. That there is a legally enforceable debt 8 C.C.No.4897 OF 2015 SCCH-26
2. That cheque was drawn from the account of bank for discharge in whole or in part of any debt or any other liability which presuppose legally enforceable debt
3. That the cheque so issued had been returned due to insufficiency of funds.
11. The proviso appended to the said section provides for compliance with legal requirements before the complaint/petition can be acted upon by court of law.
Section 118A of N.I Act deals with special rule of evidence and stated that, every negotiable instrument act is deems to have been drawn for consideration. Section 139 of NI Act enables the court to presume, unless contrary is proved, that the holder of the cheque received the cheque of the nature referred in Section 138, in whole or in part, of any debt or other liability.
12. The presumption available U/s 118 and 139 of NI Act is rebuttal in nature, the accused can rebut the same by either entering into the witness box or effectively cross examine the complainant and his witness.
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13. PW-1 in her affidavit in lieu of examination-in-chief reiterated the facts of the complaint once again. Ex-P1 is the cheque bearing No.103464 dated 30-09-2014 for Rs.3,00,000/- drawn on State Bank of India, Vijayanagar, Bangalore, but the said cheque dishonoured as per Ex-P2 and thereafter legal notice issued as per Ex-P3. Thereafter within stipulated period the complainant filed this complaint. Hence the complainant complied all the ingredients of Section 138 of NI Act.
14. I have perused the evidence of the complainant, it discloses that complainant herself examined as PW-1 and produced some documents and marked as Ex-P1 to 4. On perusal of the entire ordersheet, it reveals that the present accused was convicted by this court on 24-03-2018. The accused preferred appeal before LXV Addl.City Civil and Sessions Judge, Bangalore in Crl.Appeal No.831/2018. After hearing both side arguments, the said appeal was disposed by Hon'ble 65th Addl.City Civil and Sessions Judge, Bangalore on 26-6-2019. The judgment passed by this court dt.24-03-2018 10 C.C.No.4897 OF 2015 SCCH-26 is set-aside by the 65th Addl.City Civil and Sessions Judge, Bangalore city. Further appellate court ordered and remitted back to this court restore the case in original CC number and proceed further trial from the stage of cross examination of PW-1 and further court appellate court directed and ordered that both parties are hereby directed appear before the trial court on or before 12-07-2019 without waiting for fresh notice or summons from the trial court. Further appellate court directed to accused has to proceed with the cross examination of PW-1 without seeking adjournment on flimsy grounds. So judgment passed by this court on 24-03-2018 set-aside by the competent court of law. As per the direction of Appellate court, accused and his counsel present before trial court. The complainant and counsel remained absent. Despite directions issued by the Appellate court and this court provided sufficient time to PW-1 did not turned-up for cross examination. The complainant counsel actively participated in proceedings. He filed recall application U/s 311 Cr.P.C. on 12-2-2021. Even though five years old case, this court considered the application filed by complainant and provided 11 C.C.No.4897 OF 2015 SCCH-26 opportunity to PW-1 for tendering for cross examination. Again this court provided more than 3 adjournments for keep the complainant for cross examination. But same was not utilized by the complainant, then this court again recorded as PW-1 not tendering for cross examination. But even after granting sufficient time, she did not appeared for tendering the cross examination. At this situation. It is profitable to refer and relied Hon'ble Apex court decision. In the case of Vidyadhara Vs Manik Rao and another reported in AIR 1999 Supreme court 1441, it is held that Section 114 of Indian Evidence Act- ...adverse inference-party to suit-not entering the witness box- give rise to inference adverse against him. "Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to cross examination by other party a presumption would arise that the case setup by him is not correct". In the instant case, complainant produced exhibits, but his case averments not supported by him as he did not tendering for cross examination. He avoided the witness box, so that he may not be cross examined, this itself enough to reject the claim of complainant. Section 3 of 12 C.C.No.4897 OF 2015 SCCH-26 Indian Evidence Act clearly defined "Evidence" means and includes -
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.
Further this issue was considered by Hon'ble High Court of Karnataka in case Sannarevannappa Bharamajappa Kalal Vs State of Karnataka ILR 1990 Kar 1205 Hon'ble Apex court observed that -
"complete evidence calls for cross examination not examination-in-chief alone. If witness does not submit to cross examination after examination-in-chief court precluded from acting on such incomplete evidence"
The statement of a witness to be called "Evidence" must be capable of being tested in cross examination, otherwise, it will certainly not be legal evidence. The complainant has to blame 13 C.C.No.4897 OF 2015 SCCH-26 itself for the predicament in which it has tendered by not tendering himself cross examination.
15. The common defence of the accused is that, they filed a case against him 7 cases filed in C.C.No.7136/2015, 7137/2015, 7138/2018, 7139/2015, 7140/2015, 13623/2015, 14969/2015 as well as before C.C.No.4902/2015, SCCH-26 court, 4 Cases 4905/2015, numbering 4907/2015 in and 4897/2015 were filed. In all the cases, he does not know the complainant and even he has not seen those complainants, without their being any financial transaction with those complainant, filed the false cases and those cases were filed at the instance of one B.K.Mahadeva in order to skip from his liability.
16. The accused has also contended that, the complainant in C.C.No.7136/2015 by name Malathi who is the wife of complainant herein and the complainant by name Suchitra Ganapathy in C.C.No.7139/2015 is the daughter of complainant herein, though only known to the accused herein along with complainant herein.
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17. The accused has further alleged that, the complainant has run Big Gains Holding Company jointly with one Ripon K Malhotra, which is partnership venture. The complainant has assured the accused that, if invested money in their company, it will give double within a year and make believe the accused, the accused on believing the words of one B.K.Mahadeva in between April, 2012 to November, 2012 had invested sum of Rs.40 lakhs in the said concern. Out of which, Rs.14 lakhs were deposited in the account of B.K.Mahadeva herein and his wife Malathi and Rs.12,40,000/- were deposited in the account of Suchithra Ganapathi. The complainant and his family members were gave profit of Rs.20 lakhs to the accused herein.
18. The accused has also further contended that, the B.K.Mahadeva having one partner by name Ripon K Malhotra was arrested by the CCB Police under the allegation that, he defrauded the people and he was interrogated and on 29.06.2013 the said Ripon K Malhotra got suicide. After his death, the accused was enquired with B.K.Mahadeva herein 15 C.C.No.4897 OF 2015 SCCH-26 about his investment, then the complainant took sometime for repayment. But in the 2nd week of July, 2013 at about 11.00 a.m. some of the persons were came to the accused along with B.K.Mahadeva, have took him and got ill-treated him in unknown place and kept him lock in a room till evening.
19. Thereafter, at the evening, they have brought the accused to his office and taken the cheque book of the accused and threatened the accused to fill the cheque as instructed by B.K.Mahadeva and accordingly, they have took 13 cheques in the name of different persons. In some of the cheques, they have deleted the date and threatened him to mention the date on the cheques and got obtained his signatures and also threatened, if disclosed those incident to others met with the life threat to the accused. If anything happens to his life, the B.K.Mahadev is liable. The DW.1 was subjected for cross-examination. During cross examination, by the complainant counsel, he clearly admits that he did not gave complaint against B.K.Mahadeva till today and he contended that he having life threat from Mahadeva. Therefore he would not gave complaint to police against 16 C.C.No.4897 OF 2015 SCCH-26 B.K.Mahadeva. Further he admits that he had a company in the name of Akshaya international company and he has been working as Proprietor of said company. The said firm still working under the same address mentioned in the cause title of the complaint. Further he stated that upon the instruction of B.K.Mahadeva he wrote names of B.K.Mahadva, Anil Thilak, Mogadaum, Ravikanth, Suchitra Ganapathi, Shivasharana, Annapoorna, Malathi, Lathadevi. Further learned counsel for complainant suggested the complainant preferred appeal against acquittal order passed in CMM court, Bengalore. To substantiate his suggestion he did not produced copy of the appeal. The other suggestions made by the complainant counsel clearly denied by the accused.
20. The main argument of the accused counsel is that, as per the complaint averments, the accused is business man and owning one Proprietor of Akshaya International office at Vijayanagara, Bangalore and the complainant is known to the accused for over five years now. The accused had approached the complainant during the month of March 2012 requested to 17 C.C.No.4897 OF 2015 SCCH-26 do the investment for his office business in and around Bangalore and other places of the accused. The complainant agreed for the investment, the amount which was done as per the mutual understanding and also one agreement, accused due to complainant of Rs.3,00,000/-. Further in the complaint averred that inspite of several months, accused did not repay the said amount and he issued one cheque and asked the complainant to deposit the cheque, upon assurance of the accused, the said cheque was presented, it got dishonoured for the reason of Insufficient Funds. Then complainant got issued legal notice inspite duly served on him, he did not repay the loan amount. To prove this facts, the complainant while recording the sworn statement, she produced Ex-P1 to 4. Ex-P1 is the cheque admittedly which is belongs to accused and signature also belongs to accused. The disputed cheque on presentation got dishonoured, same was intimated and demanding for payment of loan amount of Rs.3,00,000/- from the complainant, as per demand notice, the said demand notice returned as No such firm in the address. So as per the materials placed by the complainant, 18 C.C.No.4897 OF 2015 SCCH-26 demand notice was not served on the accused. another document Ex-P4 one agreement entered into by the complainant and accused. On going the recitals of Ex-P4, the accused/second party received a sum of Rs.3,00,000/- from first party/complainant on 24-2-2012 for investment of business purpose and accused had given one cheque bearing No.346634 dt.5-5-2013 from the accused for a sum of Rs.3,00,000/-. In that agreement, there is a arbitration clause also include in case of any dispute arise, both parties would settle before arbitrator. The present complaint filed before 42nd ACMM on 13-2-2015. Except this documents, complainant has not produced any other documents. Moreover despite directions issued by the appellate court and this court provided sufficient time, PW-1 did not tender for cross examination. Hence the evidence of complaisant not concluded. There is no obligation on this court to refer documents produced by the complainant. It is settled principal of law that once cheque and signature admitted as per Section 118 and 139 of NI Act, court shall draw the presumption in favour of the complainant. The said 19 C.C.No.4897 OF 2015 SCCH-26 presumption is rebuttal in nature. But in case in hand, the complainant despite provide sufficient time, she did not tender for cross-examination, as already discussed supra no evidence from complainant side. The accused produced Ex.D.1, it did not contain any particulars of payment made by accused and signature of the complainant finance officials. Ex.D.1 is a certified copy of the CC No.4894/2015 which was filed by one Smt.Lathadevi against this accused i.e., Arun Kumar for the offence committed by the accused U/s 138 of NI Act she claimed in this complaint accused had issued cheque bearing No.103465 for Rs.12,00,000/- during the month of March 2012. The complaint allegations of CC No.4894/2015 and complaint allegations of present complaint are totally similar and replica. The said complaint which was filed by Lathadevi was dismissed by this court for default on 15-11-2018. As per the evidence of accused, many cases filed against this accused from different complaints. According to accused, he knows B.K.Mahadeva and her wife Smt.Malathi and Suchitra Ganapathi, he did not know other complainants. But other complaints filed against accused on the same line of pleading 20 C.C.No.4897 OF 2015 SCCH-26 on different cheques. So it is confirmed that B.K.Mahadev and other is partner get signed cheques of accused, later it was misused by the B.K.Mahadeva and others as stated by the accused on oath before this court. Admittedly accused did not took any legal action against B.K.Mahadeva. The reasons stated by the accused is not satisfactory, because if accused gave complaint against B.K.Mahadeva law will take care of his life and his family. But he did not give any complaint against B.K.Mahadeva. He alleged before this court only. But the burden is on complainant to prove the accused had issued his signed cheque for discharge of debt or other liability and same was bounced. Inspite of repeated demand, he did not repay the loan amount. Therefore they filed complaint against accused. To prove this facts, complainant did not available for cross examination before this court. Since 6-6-2017, the complainant did not turned-up before this court for cross examination. The conduct of the complainant is doubtful. Such extent accused proved before this court, the case of the complainant is doubtful and creates the doubt in the mind of the court. Such benefit of doubt shall extended to accused. 21 C.C.No.4897 OF 2015
SCCH-26 This court opinion that some extent accused rebutted presumption drawn in favour of the complainant.
21. The present proceedings is quasi criminal, but ultimate effect is penal in nature, when a person liable to be sentenced for imprisonment upto two years complainant cannot be given any concession except to prove the sum and substance of plea beyond reasonable doubt. To prove the charge beyond reasonable doubt/evidence must be clincher and clear establishing all the ingredients constituting offence U/s 138 of NI Act. When complainant evidence did not establish the transaction, nor it establish that the cheque was issued in respect of existing debt or legal liability, mere issuance of it and its dishonour does not constitute offence. Hence my answer to point No.1 in the Negative.
22. Point No.2: In the light of the findings given on point No.1 and in the facts and circumstances of the case, I proceed to pass the following ;-
22 C.C.No.4897 OF 2015
SCCH-26 ORDER By Acting U/s 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 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 7th April 2021) (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW-1: Shivasharan DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P-1: Cheque Ex.P-1 (a): Signature of the accused Ex.P-2: Bank memo Ex.P-3: Legal Notice Ex.P-3(a): Postal receipt Ex.P-3(b): Returned postal cover Ex.P-3(bb) : Postal cover Ex.P-4: Complaint
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
DW-1 : B.R.Arun kumar DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
Ex.D1 : Copy of ordersheet in CC No.4894/2015 and bank statement copy (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.