Bangalore District Court
M.Venkatesh vs Virupaksha on 20 July, 2016
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 20th day of July - 2016
PRESENT: SRI. S.G.SALAGARE, B.Sc., LL.B.,(Spl)
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.21555/2013
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : M.Venkatesh,
Proprietor of SLV Enterprises,
No.5/2, Annaiah Road,
Basappa Reddy Compound,
Yelachenahalli, Kanakapura Road,
Bengaluru-78.
(Rep. by Sri.N.Udayakumar,
Advocate)
V/S
Accused : Virupaksha,
Proprietor of
New SLV Green Garden Family
Bar and Restaurant,
No.19/2, Near Irani Apartments,
Avini Shruneri Nagar,
Nayanapalli, DLR Road,
Hulimavu,
Bengaluru-76.
And also at:
Virupaksha,
Proprietor,
R.B.P. Green Garden Family
Bar and Restaurant,
14th Main, Madeen Nagar,
Mahadeshwara Layout,
N.S.Palya, BTM II Stage,
Bengaluru-76.
(Rep. by Sri.U.J.Hariprasad, Adv.)
Judgment 2 C.C.21555/2013
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 20.07.2016.
(S.G.SALAGARE)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
This complaint is filed by the complainant against the accused for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as under:
The complainant is dealing in M.S.Tubes, Cold Rolled Sections under the name and style as SLV Enterprises at Yelachenahalli, Kanakapura Road. On 13.12.2012, accused had approached the complainant for supply of M.S.Tubes in 126 Nos. On the request of accused, complainant had supplied M.S.Tubes vide invoice No.1750 dated:13.12.2012 total worth of Rs.2,01,621/- to the accused. After supplying the M.S.Tubes, the accused has issued a cheque bearing No.051241, dated:28.03.2013 for Judgment 3 C.C.21555/2013 Rs.2,01,000/- drawn on HDFC Bank, BTM Layout, Bengaluru in favour of complainant and assured that the said cheque will be honoured on its presentation.
It is further case of complainant that, on 26.06.2013 the complainant has presented the said cheque through his banker viz., Bank of India, J.P.Nagar Branch, Bengaluru for collection. On 27.06.2013, the said cheque was returned unpaid for the reasons "Funds Insufficient". The said fact was informed by the complainant to the accused, and the accused has requested him again to present the said cheque on 29.07.2013 for encashment. As per the assurance of accused, complainant again presented the said on 29.07.2013 for encashment, and the same was again returned unpaid for the reasons "Drawers Signature Differs" on 30.07.2013. On 01.08.2013, the complainant brought this fact to the knowledge of accused by issuing demand notice through RPAD as well as Professions courier to accused and the said demand notice sent through RPAD and Professional courier were duly served upon accused on
03.08.2013 and 05.08.2013. After receipt of notice the accused has neither paid the cheque amount nor replied Judgment 4 C.C.21555/2013 the notice. Hence, the complainant has filed the complaint against the accused for the offence punishable under Section 138 of Negotiable Instruments Act and prayed to punish the accused with maximum sentence and to award compensation to the complainant.
3. My predecessor after perusing records, took cognizance of offence, and recorded sworn statement, ordered to register Criminal Case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The accused after service of summons put his appearance through his counsel and has been enlarged on bail. Thereafter, the court has recorded the plea of accused and the accused has pleaded not guilty of the offence and claims to be tried. Hence, the case was posted for trial.
4. The complainant in order to prove his case, got examined himself as PW-1 and got marked twelve documents at Exs.P1 to P12 and closed his side. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under Section 313 of Cr.P.C., the accused denied Judgment 5 C.C.21555/2013 all the incriminating evidence available against him, and at that time the accused submitted he has no defence evidence.
5. I have heard the arguments of both the sides and perused the materials placed on record. The accused counsel has filed his detailed written argument.
6. The following points would arise for my consideration:
1) Whether the complainant proves beyond all reasonable doubt that, he had supplied M.S.Tubes total worth of Rs.2,01,621/- to accused, in this regard the accused has issued Ex.P1-cheque bearing No.051241, dated:28.03.2013 for Rs.2,01,000/- drawn on HDFC Bank, BTM Layout, Bengaluru in favour of complainant for discharge of the said amount, and on its presentation, cheque came to be dishonoured for the reason 'Funds Insufficient' & 'Drawers Signature Differs' and even after service of notice, the accused has failed to repay the amount and thereby accused is guilty of the offence punishable under Section 138 of N.I.Act?
2) What Order?
7. My findings on the above points are as under:
Point No.1 : In the Negative Judgment 6 C.C.21555/2013 Point No.2 : As per final order, for the following:
REASONS
8. POINT NO.1: It is alleged that, the complainant had supplied M.S.Tubes total worth of Rs.2,01,621/- to the accused, in this regard the accused had issued a cheque bearing No.051241, dated:28.03.2013 for Rs.2,01,000/- drawn on HDFC Bank, BTM Layout, Bengaluru in favour of complainant. When the said cheque was presented for encashment, same was dishonoured at two times for the reasons 'Insufficient Funds' and 'Drawers Signature Differs'. Even after issuance of demand notice, accused has not made any arrangement for return of cheque amount. The accused has denied the accusation made against him.
9. To prove his case, the complainant got examined himself as PW.1 by filing his affidavit in lieu of his examination in chief evidence. In the affidavit, PW.1 has reiterated the averments made in the complaint and in support of his contention; PW.1 has got marked twelve documents. Among them cheque bearing No.051241, dated:28.03.2013 drawn for Rs.2,01,000/- is marked as Judgment 7 C.C.21555/2013 Ex.P1. The said cheque is drawn on HDFC Bank, BTM Layout, Bengaluru in favour of complainant. The signature of accused is marked as Ex.P1(a). Exs.P2 and P3 are the Bank Endorsements issued by the Bank of India, the contents of Exs.P2 and P3 disclose that, the cheque bearing No.051241, dated:28.03.2013 drawn for Rs.2,01,000/- is dishonoured for the reasons 'Funds Insufficient' and 'Drawers Signature Differs'. Ex.P4 is the Demand Notice dated:01.08.2013, the recitals of Ex.P4 disclose that, the complainant has issued this notice to two address of accused through his counsel. By issuing this notice complainant called upon the accused to repay the cheque amount of Rs.2,01,000/- within 15 days from the date of receipt of notice. Exs.P5 and P6 are the Postal Receipts, Exs.P7 and P8 are the Professional Courier Receipts, Ex.P9 is the Postal Acknowledgement Card, Ex.P10 is the Unserved postal cover and Exs.P11 and P12 are the Courier Delivery Reports.
10. In the cross-examination accused has denied the transaction with complainant. Accused has contended that, he has not issued Ex.P1 cheque in favour of Judgment 8 C.C.21555/2013 complainant, and he has not issued cheque for discharge of any legal liability. Offence alleged against accused is punishable under Section 138 of Negotiable Instruments Act. To prove the alleged offence against the accused, complainant has to prove that accused has issued the cheque for discharge of his legal liability. Cheque should be drawn by accused on account maintained by him, for payment of money to the complainant in respect of the supply of M.S.Tubes to the accused. Further complainant has to prove that he complied provisions of Section 138 of Negotiable Instruments Act. In the cross-examination PW.1 stated that, he has not enquired both the address mentioned in the cause title of complaint to know to whom the address belongs, and who is the owner of said New SLV Green Garden Family Bar and Restaurant and RBP Green Garden Family Bar and Restaurant. When it is suggested that accused is not the owner of both the restaurants, complainant stated that he do not know. PW.1 admitted that, Ex.P1 cheque belongs to bank account of New Gouwtham Bar and Restaurant. When it is suggested to PW.1 that, complainant has not made the owner of New Gouwtham Bar and Restaurant as party to this case and no Judgment 9 C.C.21555/2013 notice is issued to the said owner, for that PW.1 stated that, he has issued notice to the accused at Hulimavu address. From this answer, it reveals that complainant has not made the owner of the New Gouwtham Bar and Restaurant as party to this case and the complainant do not know who is the owner of New Gouwtham Bar and Restaurant. PW.1 admitted that, Exs.P7 to P11 does not bear the signatures of accused and when it is suggested that, notice is not served on accused, for that PW.1 stated that, this matter is known to his counsel. PW.1 denied the suggestions of accused counsel that complainant has not supplied any material, accused has not obtained any loan from complainant and accused is not liable to pay any amount to complainant as per law. Thus from the cross- examination of PW.1, it clearly disclose that accused had denied the transactions with complainant.
11. Ex.P1 is the cheque issued in favour of SLV Enterprises. PW.1 has stated that Ex.P1 cheque is issued by accused. PW.1 has stated that, Ex.P1(a) is signature of accused. Accused has not disputed the signature marked at Ex.P1(a) during the cross-examination of PW.1, but it is Judgment 10 C.C.21555/2013 suggested that accused has not issued the cheque in favour of complainant and he is not liable to pay any amount to complainant. It is stated that, complainant has supplied M.S.Tubes to the accused and he has clearly stated the address of accused as No.19/2, Near Irani Apartment, Hulimavu, Bengaluru, and it is stated that having received the goods accused has signed the invoice. For the payment of goods supplied, accused has issued Ex.P1 cheque. In the cause title address of accused is shown as - Virupaksha, Proprietor, New SLV Green Garden Family Bar and Restaurant, and RBP Green Garden Family Bar and Restaurant. But the cheque marked at Ex.P1 disclose that, cheque is belongs to account of New Gouwtham Bar and Restaurant. Complainant has not made the owner of New Gouwtham Bar and Restaurant as a party to the case. It is also not stated that accused is the owner of New Gouwtham Bar and Restaurant. It is not the case of complainant that, he has supplied the M.S.Tubes to the New Gouwtham Bar and Restaurant. Therefore, the cheque is not issued by the accused who is shown as proprietor of New SLV Green Garden Family Bar and Restaurant and RBP Green Garden Family Bar and Restaurant. Even if the Judgment 11 C.C.21555/2013 accused has not disputed the signature in the cross- examination of PW.1, the signatures made on vakalath, plea and 313 statement of accused are not tallying with the signature marked at Ex.P1(a). Therefore, there is no sufficient material to show that, accused has issued the cheque in favour of complainant.
12. It is the contention of complainant that, for the supply of M.S. Tubes accused has issued the cheque. It is specifically stated that, accused has signed the invoice, but complainant has not produced the said invoice, and therefore in the absence of material documents it cannot be held that, complainant has supplied the M.S.Tubes and in that aspect for payment of bill accused has issued the cheque Ex.P1.
13. Accused has suggested that, complainant is not the owner of SLV Enterprises and he has no authority to lodge the complaint. When the accused has seriously disputed the authority of complainant, complainant ought to have produced the documents to show that, he is the proprietor of SLV Enterprises and he is authorized person to register the complaint on behalf of SLV Enterprises. Absolutely, no Judgment 12 C.C.21555/2013 piece of document is produced by the complainant to show that he is the owner of SLV Enterprises and dealing in supply of M.S.Tubes. Further the verification of complaint discloses that, one C.M.Nagaraju has verified the complaint and it is stated that, C.M.Nagaraju is the complainant. But complaint is signed by the present complainant M.Venkatesh. When the complaint is verified by C.M.Nagaraju, then an inference has to be drawn that, C.M.Nagaraju has given instructions to prepare the complaint.
14. To punish the accused for the offence punishable under Section 138 of Negotiable Instruments Act, complainant has to comply the provisions of Section 138 of Negotiable Instruments Act. Complainant has to serve the demand notice on accused. Complainant got issued notice to accused through RPAD and Professional Courier Service. Exs.P7 and P8 are the receipts of Professional Courier Service, the address shown in the receipts are as Virupaksha, BLR and RBP Green Garden BLR. This much of address is not sufficient to hold that notice is duly served. Complainant has not produced any receipt to show Judgment 13 C.C.21555/2013 that Professional Courier service notice is duly served on accused. Of course complainant has produced Exs.P11 and P12 are the Courier Delivery Reports. The said reports disclose that, notice are served on Virupaksha but the complainant has not called upon the persons who served the notice through Professional Courier Service and examined them to prove Ex.P11 and P12. Mere production of Ex.P11 and P12 will not prove service of notice, because the said documents are Xerox copies and they does not bear the seal and signatures of professional courier service. The said documents are not authenticated documents and they cannot be relied on. Ex.P9 is the Postal Acknowledgement Card, but it does not bear the signature of accused. Therefore these documents will not help the complainant to prove that demand notice is served through RPAD and Professional Courier Service. Ex.P10 is the Unserved Postal Cover, which disclose that, no such person in this address returned to sender. Thus it is shown that, accused is not residing in the address mentioned on Ex.P10.
Judgment 14 C.C.21555/2013
15. By not producing the invoice complainant has failed to establish that he has supplied the M.S. Tubes to the accused. Further complainant has not produced any document to show that he is the authorized person to lodge the complaint on behalf of SLV Enterprises. Complainant has not proved that accused is the owner of New Gouwtham Bar and Restaurant and accused is the owner of the same. Complainant has not proved that demand notice is duly served on accused. Thus complainant has failed to establish that accused has issued Ex.P1 cheque for discharge of legally recoverable debt i.e., for the payment of M.S. Tubes supplied. Thus evidence adduced to the complainant is not sufficient to hold that accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, the complainant has failed to prove the alleged offence against the accused. In view of the above said reasons, I hold point No.1 in the Negative.
16. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
Judgment 15 C.C.21555/2013
ORDER Acting under Section 255(1) of Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and surety bond of accused stands cancelled.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 20th day of July - 2016) (S.G.SALAGARE) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : M.Venkatesh List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Exs.P2 & P3 : Bank endorsements Ex.P4 : Office copy of legal notice Exs.P5 & P6 : Postal Receipts Exs.P7 & P8 : Courier receipts Ex.P9 : Postal Acknowledgment Card Ex.P10 : Unserved postal cover Exs.P11 & P12 : Courier Delivered Acknowledgment
List of Witnesses examined on behalf of the defence:
- None -Judgment 16 C.C.21555/2013
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.Judgment 17 C.C.21555/2013
20.07.2016.
Comp -
Accd -
For Judgment Judgment pronounced in the open court vide separate order.
*****
ORDER
Acting under Section 255(1) of
Cr.P.C. the accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act.
The bail bond and surety bond of accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.