Bangalore District Court
M/S Lucky Military And General Stores vs M/S Brigade Security Solutions (India) ... on 15 June, 2024
KABC0C0047932021
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
-: PRESENT :-
Sri P.S. Santhosh Kumar, M.Com., LL.M.,
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 15TH DAY OF JUNE 2024
C.C.NO.51463/2021
COMPLAINANT : M/s Lucky Military and
general Stores,
No.3, main road,
Near Balaji Theater,
Vannarpete, Vivekanagar
Post, Bengaluru-47.
Represented by its Proprietor,
Mr. Tajender Singh,
S/o Amrik Singh.
Vs.
ACCUSED : M/s Brigade Security
Solutions (India) Pvt. Ltd.,
Represented by its Director,
Mr. Surendra Pujari,
Indian, Adult,
Father name not known,
No.55, A-2,
Malaprabha Block, National
Games, Village,
Koramangala, Bengaluru-47.
2
C.C.NO.51463/2021
J U D G M E N T
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of the Negotiable Instruments Act.
2. The factual matrix of the case are as follows:-
The accused had purchased the goods worth Rs.8,50,080/- under two different bills from the complainant on 22.12.2020. The accused had issued cheque bearing No.170455 dated 23.12.2020 and 170456 dated 23.12.2020 for sum of Rs.3,00,000/- each towards part payment of the said amount and the said cheques were drawn on Bharath Co-operative Bank Ltd., K.H. Road branch, Bangalore. He has further stated that on his request to pay the said amount as accused had promised to repay, the accused told the complainant to present the aforesaid cheques for encashment. Accordingly, the complainant presented those cheques for encashment through his 3 C.C.NO.51463/2021 banker Canara bank, Vivek Nagar branch, Bangalore, and the said cheques came to be dishonored with an endorsement "Funds Insufficient" vide bank memo dated 24.12.2020. The dishonor of the said cheques were brought to the notice of the accused and the complainant requested the accused to immediately arrange for payment of the said amount by issuing notice through his counsel on 05.01.2021 and the said notice was served on the accused on 07.01.2021. The accused did not pay the cheque amount even after receipt of said notice and the accused sent an untenable reply on 02.02.2021. Hence, the accused has committed the offence punishable U/s.138 of Negotiable Instruments Act.
3. Based on the complaint, the sworn statement affidavit, the documents etc., the court took cognizance of an offence punishable under Sec.138 of the Negotiable Instruments Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to register a criminal 4 C.C.NO.51463/2021 case against the accused for the offence punishable U/s.138 of Negotiable Instruments Act.
4. In pursuance of summons, the accused appeared through his counsel, he was enlarged on court bail, further, substance of plea was recorded, the accused pleaded not guilty and he claimed to be tried. In order to prove his case, the complainant was examined as PW1 and got marked Ex.P1 to P15 and closed his side. Upon closure of complainant's side evidence, the court examined the accused U/s 313 of Cr.P.C, the accused denied the incriminating materials appearing against him and the accused has got examined himself as DW1 and got marked Ex.D1 to 9 and closed his side.
5. Heard both the sides. I have gone thorough the citations relied upon by the counsel for the accused reported in 2008 (2) Crimes (HC58), between Manjula G. Vs. Manjula B.T. of Hon'ble High Court of Karnataka and also a decision of the Hon'ble Kerala 5 C.C.NO.51463/2021 High Court in Crl.Rev.P.No.664/2014 dated 10.01.2018 between Susamma Raju Vs. K.M.Wilson and Another. Perused the materials available on record.
6. The following points would arise for my consideration:-
1. Whether the complainant proves beyond all reasonable doubts that the accused has committed an o/p/u/s 138 of the Negotiable Instruments Act?
2. What Order?
7. My findings on the above points are as follows;
Point No1: In the Negative, Point No.2: As per final order, for the following, R E A S O N S
8. POINT No.1: I have gone through the materials available on record. It is relevant to mention here that during the course of arguments the learned 6 C.C.NO.51463/2021 counsel for the complainant has reiterated the allegations made in his complaint and he has further argued that the oral evidence of PW1 coupled with the documentary evidence at Ex.P1 to 15 produced by the complainant clearly establishes the case of the complainant and that the accused has failed to rebut the presumptions available in favour of the complainant by adducing cogent oral and documentary evidence and hence, the accused is liable to be convicted. On the other hand, the counsel for the accused has argued that the complainant never supplied the goods as stated in his complaint and he has specifically contended that the cheque in question along with one more cheque was given to the complainant towards security in respect of the hand loan of Rs.6,00,000/- borrowed by the accused and even the accused has repaid Rs.3,00,000/- with interest @ 2% p.m., out of the said hand loan to the complainant. He has argued that the accused was unable to pay the interest nearly for a period of 10 months due to Covid-19 and subsequent lock 7 C.C.NO.51463/2021 down. The complainant had not returned the above said cheques to the accused even after clearing part of the hand loan and demanded higher amount of interest on the remaining loan and in order to overcome the above said transaction, he had raised bills bearing Nos.880, 881 dated 22.12.2020 for an amount of Rs.8,50,080/- and alleged cheque in question was not at all issued for the discharge of any business liability and instead, it was given towards security for the purpose of above said hand loan. He has further argued that the complainant has misused the above said cheques given in blank at the time of borrowing the hand loan from the complainant in order to make unlawful gain. Accordingly, prayed for acquittal of the accused.
9. The complainant, who has been examined as PW1, has reiterated the facts stated in his complaint in his chief examination also and in addition to his oral evidence, he has produced as many as 15 documents which are marked as Ex.P1 to 15.
8C.C.NO.51463/2021
10. Ex.P1 and 2 are said to be the cheques in question dated 23.12.2020 for Rs.3,00,000/- each given by the accused towards part payment of the bills raised as per Ex.P7 and 8. Ex.P3 and 4 are the bank endorsements dated 24.12.2020 which goes to show that the cheques in question came to be dishonored for the reason "Funds Insufficient" on 24.12.2020. Ex.P5 is the copy of statutory notice said to have been issued by the complainant in favour the accused demanding payment of the amount mentioned in the cheques in question. Ex.P6 is the postal receipt for having sent legal notice to the accused as per Ex.P5. Ex.P12 is said to be the reply notice dated 02.02.2021 said to have been issued by the accused in response to statutory notice at Ex.P5. It is relevant to mention here that issuance of the cheque in question in favour of the complainant and the signatures appearing on it has not been denied by the accused. Further DW1 has categorically admitted during his cross-examination as the signatures at Ex.P1(a) and Ex.P2(a) are belongs to him. No doubt, the accused 9 C.C.NO.51463/2021 has taken a defence that the cheques in question were not issued towards any business transaction and that they were issued towards security for the hand loan of Rs.6,00,000/- borrowed by him from the complainant, which has to be established by the accused. Such being the case, once the accused accepts and admits the issuance of the cheque in question in favour of the complainant, the initial presumption as contemplated U/S 139 of the N.I Act has to be raised by the court in favour of the complainant, however, the accused is entitled to rebut the said presumptions as held in the case of Sri Rangappa Vs. Sri Mohan by the Hon'ble Supreme Court reported in AIR 2010 SC 1898.
11. Once the presumption U/S 139 and 118 of the Negotiable Instruments Act is raised, it is for the accused to rebut the said presumption by adducing cogent evidence in support of his defence. It is relevant to mention here that the accused has seriously disputed the issuance of the cheques in 10 C.C.NO.51463/2021 question in favour of the complainant towards supply of any goods as stated by the complainant. In that background, I have carefully gone thorough the materials available on record. It is relevant to mention here that the complainant is claiming that he had sold the goods worth Rs.8,50,080/- to the accused on 22.12.2020 and in that respect the cheques in question were said to have been issued by the accused. It is relevant to mention here that the complainant has produced the invoices relating to the above said transaction which are marked at Ex.P7 and
8. No doubt, said Ex.P7 and 8 which are the carbon copies of the invoices goes to show that the goods mentioned in the said invoices were shown to have been sold in favour of the accused firm. But, it is relevant to mention here that the accused has seriously disputed those documents that it does not bear the signature of the customer and seal of the accused firm and the said fact has also been suggested by the accused to the PW1 during his cross- examination, but PW1 has answered to the said 11 C.C.NO.51463/2021 suggestion that signatures of the accused were obtained on delivery note and immediately thereafter the accused has also put a suggestion that the delivery notes produced by the complainant at Ex.P9 and 10 also do not bear signatures of the accused and it has been categorically denied by the complainant. In view of the denial of the complainant I have gone through the said documents at Ex.P9 and 10. Upon going through Ex.P9 and 10, though the said documents provides for space for the signature of the receiver of the goods in the left side below corner of the said documents, nothing could be seen there and further nobody has put the signature in the space provided for signature of receiver of the goods. Further if at all there was signature of the receiver of the goods or the accused on that document, the complainant could have identified and got it marked before the court to categorically establish delivery of said goods to the accused. It is relevant to mention here that the accused also issued his reply notice as per Ex.P12 denying the sale of any such goods to him 12 C.C.NO.51463/2021 by the complainant. Further it is relevant to mention here that the accused has taken a defence that the invoices are dated 22.12.2020 and they are dispatched to him through speed post on the very same day and it was delivered on the next day i.e., on 23.12.2020 around 14.22.27 p.m. as per the postal track consignment and the cheques in question were not issued on 23.10.2020 and the complainant has misused the above said cheques in order to suit his case which he had given as security towards the loan of Rs.6,00,000/- borrowed by him. No doubt, the accused though taken such a contention he did not produce any document to show that it was exactly delivered at the above stated time. However, the complainant himself has admitted during his cross- examination that he had sent the copies of Ex.P 7 and 8 tax invoices to the accused by post and that tax invoices might have been delivered to the accused through post on 23.12.2020. Further PW1 has categorically stated that the accused had issued the cheques to the complainant on 22.12.2020 morning by 13 C.C.NO.51463/2021 putting his signature on delivery note. But, it is relevant to mention here that to its contrary the complainant has stated in his complaint at Paragraph No.2 that the accused purchased on 22.12.2020 the goods and in Paragraph No.4 the complainant has stated that on his request to return the said amount as accused had promised to repay the accused and told him to present the aforesaid cheques. But, the complaint does not depict when such request was made by him to the accused and when the accused told him to present the cheques in question. The said fact is relevant since PW1 himself has admitted that the invoices sent by him might have been delivered to the accused on 23.12.2020 only. Further it is relevant to mention here that PW1 has stated in his cross- examination that he presented the cheques in question on 22.12.2020, but the cheques in question are dated 23.12.2020. It cannot be ascertained as to how the complainant presented the said cheques before its due date, is not forthcoming from the materials available on record. Further it is relevant to mention here that 14 C.C.NO.51463/2021 Ex.P7 and 8 itself provides for time to make payment within one month after delivery of the bills and such being the case, why the complainant demanded the return of money from the accused within 23.12.2020 when the invoices said to have been delivered on the very same day itself is not forthcoming from the materials available on record. When the Ex.P7 to 10 itself do not bear the signatures of the accused or the receiver of the goods, the other documents i.e., GST certificate, GST receipt and GST returns also would not help the case of the complainant. Further it is relevant to mention here that the complainant has categorically stated during his cross-examination that he did not produce books accounts pertaining to the said transactions before this court. When the accused is disputing the invoices and delivery notes and other documents produced by the complainant in relation to the sale of said goods, certainly the complainant would have produced the books of accounts, but he did not do so for the best reason known to him. In the above circumstances, merely because the accused 15 C.C.NO.51463/2021 did not produce any documentary evidence either in relation to the hand loan of Rs.6,00,000/- borrowed from him or for having purchased dress materials for security personnel worth Rs.1,98,202/-, it cannot be said that the complainant has established his case beyond all reasonable doubts. Further the accused cannot be insisted to lead negative evidence and it is for the complainant to prove that the alleged the cheques in question were issued towards a legally enforceable debt as on the date of issuance of cheques. Further it is well established principles of the law that the accused even need not enter into witness box to disprove the case of the complainant and he can utilize the materials produced by the complainant to rebut the presumptions available in favour of the complainant. In the circumstances, I would like to rely upon the decision of the Hon'ble Supreme Court between Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, wherein it is held that in paragraph Nos. 18 to 20, as follows:-
16C.C.NO.51463/2021 "18. Applying the definition of the word "proved"
in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
17C.C.NO.51463/2021
20. ........................The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant.
To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist..............."
Upon going through the above decision of the Hon'ble Supreme Court, it is crystal clear that the ratio laid down therein is aptly applicable to the present case in hand. Considering the facts and circumstances of the case, I am of the opinion that the ratio laid down in the decisions relied upon by the accused mentioned 18 C.C.NO.51463/2021 above are not aptly applicable to the present facts and circumstances of the case. As such, I am of the opinion that the complainant has failed to prove his case beyond all reasonable doubts and on the other hand, the accused has successfully rebutted the presumptions available in favour of the complainant by raising a probable defence that the alleged cheques in question were issued by him in respect of a loan transaction of Rs.6,00,000/- held between him and the complainant during the month of August 2018. With these observations, my findings on Point No.1 is in the Negative.
12. Point No.2: In view of my findings on Point No.1, I proceed to pass following;
O R D E R
Acting u/s. 255(1) of Cr.P.C., the
accused is hereby acquitted of the offence punishable u/s.138 of Negotiable Instrument Act,1881.
19
C.C.NO.51463/2021
The bail bond and cash security
executed by the accused is hereby stands continued till the appeal period is over.
(Typed to my dictation by the Stenographer, directly over Computer, corrected, signed and then pronounced by me in the open court, on this the 15th day of June 2024) Digitally signed by SANTHOSH KUMAR SANTHOSH PS KUMAR P S Date: 2024.06.24 16:53:14 +0530 (P.S. SANTHOSH KUMAR) XXXIII ACMM, BENGALURU.
A N N E X U R E
1.Witnesses examined on behalf of Complainant:
P.W.1 : Mr. Tajender Singh
2.Documents marked on behalf of complainant:
Ex.P.1 & 2 : Original cheques
Ex.P.1(a) & 2(a) : Signatures of the accused
Ex.P.3 & 4 : 2 Bank return memos
Ex.P.5 : Office copy of the legal notice
Ex.P.6 : Postal receipt
Ex.P.7 & 8 : 2 Tax invoices
Ex.P.9 & 10 : 2 Delivery notes
Ex.P.11 : GST Certificate
Ex.P.12 : Reply Notice
Ex.P.13 : Postal receipt
Ex.P.14 : GST receipt
20
C.C.NO.51463/2021
Ex.P.15 : GST Returns
3.Witnesses examined on behalf of accused:
D.W.1 : Sri. Surendra Poojari
4.Documents marked on behalf of Accused:
Ex.D.1 & 2 : Invoices Ex.D.3 : Postal cover Ex.D.4 : Office copy of the legal notice Ex.D.5 : Postal receipt Ex.D.6 : Postal Acknowledgment Ex.D.7 : Statement of account from 01.05.2017 to 31.03.2018 Ex.D.8 : Cheque leafs book front page Ex.D.9 : Statement of account from 01.04.2018 to 31.03.2021 Digitally signed by SANTHOSH SANTHOSH KUMAR P S KUMAR P S Date: 2024.06.24 16:53:04 +0530 (P.S. SANTHOSH KUMAR) XXXIII ACMM, BENGALURU.