Bangalore District Court
(In All Five Cases) M/S. Alufit (India) ... vs (In All Five Cases) Mr. Puneeth Seth on 11 November, 2015
IN THE COURT OF XXI ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
DATED THIS THE 11th DAY OF NOVEMBER, 2015
PRESENT: Smt. B.SHARADHA, B.Sc., LL.B
XXI ADDL. C.M.M., BANGALORE
C.C.No.272, 273, 274, 275 & 276/2011
COMPLAINANT:
(In all five cases) M/s. ALUFIT (INDIA) PRIVATE
LIMITED, Having its Office at
No.111, Brigade Court, 4th Floor,
5th Block, Koramangala,
Bangalore-560 095.
Represented by its Vice President
- Finance & Authorized
Representative/Special Power of
Attorney Holder Sri. M. Narendra
Kumar.
V/s.
ACCUSED:
(In all five cases) Mr. PUNEETH SETH, Proprietor,
M/s. Samanvary Global Inc. WZ-
106/25-5-26, Rajoury Garden
Extension, Titar Pur, New Delhi.
-: C O M M O N J U D G M E N T :-
All these five complaints are filed under Section 200
Cr.P.C. for the offence punishable Under Section 138 of N.I.
Act.
2. The brief facts of the case of the complainant in all
the five cases is that the accused is the proprietary concern
and it was purchasing aluminum extrusions through the
invoices from them and in this regard invoices have been
2 C.C. No. 272, 273, 274, 275 &
276/2011
raised in the name of the accused establishment and they
have been accepted by the accused. On receiving the goods,
the accused used to make partial payments towards the
invoices and thereafter the accused became defaulter in
making payment towards invoices. As per the terms of the
invoices and the practice, the accused is required to make
payment towards the invoices within 30 days from the date of
receiving the goods and the accused is liable to pay interest
for delayed payments. The complainant claims that the
accused was due of Rs.55,24,903/- apart from interest.
Towards the said dues, the accused has made payment to the
tune of Rs.24,00,000/- through various cheques leaving the
balance of Rs.31,24,903/- apart from interest of
Rs.3,53,270/-. Hence, the complainant claims that the
accused is due of Rs.34,78,173/-. The accused towards the
payment of said dues, issued various cheques for discharging
his liability and one among them is the cheque bearing
No.269355 dated 09.04.2010 drawn on State Bank of Indore,
Rajouri Garden Branch, Delhi for Rs.10,00,000/- referred in
C.C.272/2011,
(2) cheque bearing No.269344 dated 25.04.2010 drawn
on State Bank of Indore, Rajouri Garden Branch, Delhi for
Rs.10,00,000/- referred in C.C.273/2011,
(3) cheque bearing No.248053 dated 02.03.2010 drawn
on Punjab & Sind Bank, Pashchim Enclave, Peera Garhi,
Delhi for Rs.3,53,270/- referred in C.C.274/2011,
(4) cheque bearing No.245776 dated 18.02.2010 drawn
on Punjab & Sind Bank, Pashchim Enclave, Peera Garhi,
Delhi for Rs.5,00,000/- referred in C.C.275/2011 &
C.C. No. 272, 273, 274, 275 &
3 276/2011
(5) cheque bearing No.245777 dated 21.02.2010 drawn
on Punjab & Sind Bank, Pashchim Enclave, Peera Garhi,
Delhi for Rs.5,00,000/- referred in C.C.276/2011. At the
request of the accused through their E-mail dated 18.04.2010
and 08.05.2010, the said cheques were presented for
encashment and they came to be dishonoured on their
presentation for encashment. Hence, legal notice was issued
to the accused calling upon him to pay the cheques amount
within the stipulated period. Inspite of service of notice, the
accused neither paid the cheques amount nor replied. Hence,
claims that the accused has committed an offence punishable
U/s.138 of NI Act.
3. After recording the sworn statement of the
complainant and by perusing the documents and hearing the
arguments, case was registered against the accused for an
offence punishable U/s.138 of NI Act and summons was
issued to the accused. The summons issued to the accused
has been duly served in all the five cases. The accused in all
the five cases appeared before the court through his counsel
on the next date of hearing and filed bail application U/s.436
of Cr.P.C. The accused was enlarged on bail and plea was
recorded separately in all the five cases. The accused pleaded
not guilty and claimed to be tried, when the substance of the
accusation was read over and explained to the accused.
Hence, posted the case for complainant evidence.
4. The complainant got examined himself as PW-1 and
got marked Ex.P-1 to Ex.P-11 separately in all the five cases
and closed his side of evidence.
4 C.C. No. 272, 273, 274, 275 &
276/2011
5. The statement of the accused was recorded U/s.313
Cr.P.C. in all the four cases. The accused in all the four cases
in his 313 statement denied the incriminating evidence
appearing against him and submitted that he has defence
evidence.
6. The accused got examined himself as DW-1 and got
marked Ex.D-1 in all the five cases separately. The accused
and also got examined Sri. Beer Prakash Ja, Branch
Manager, SBI, Vishal Branch, New Delhi as DW-2 and got
marked Ex.D-2 to Ex.D-6 in C.C.272/2011, 273/2011, Sri.
Vinod Kumar Pande, Branch Manager, Punjab & Sind Bank,
Peer Garhi Branch, New Delhi as DW-2 and got marked Ex.D-
2 in C.C.274/2011, 275/2011 & 276/2011 and closed his
side of evidence.
7. Heard the arguments of both the learned advocate for
the complainant and the accused and the case was posted for
judgment.
8. The counsel for the complainant relied upon the
following decisions:-
AIR 2014 SC 3057, (2010)11 SCC 441, 1994(4) SCC 253
& AIR 2005 SC 3820.
9. After going through the evidence, documents and the
records, the points that arise for my consideration are:-
i) In C.C.272/2011
1) Whether complainant proves that the and
accused has issued postdated cheque
bearing No.269355 dated 09.04.2010 for a
sum of Rs.10,00,000/- drawn on State Bank
of Indore, Rajori Garden Branch, Delhi to
discharge his liability?
C.C. No. 272, 273, 274, 275 &
5 276/2011
2) Whether the complainant proves that the
accused has committed an offence
punishable U/Sec.138 of N.I. Act?
3) What order?
ii) In C.C.No.273/2011
1) Whether complainant proves that the
accused has issued a cheque bearing
No.269344 dated 25.04.2010 for sum of
Rs.10,10,000/- drawn on State Bank of
Indore, Rajori Garden Branch, Delhi to
discharge his liability?
2) Whether the complainant proves that the
accused has committed an offence
punishable U/Sec.138 of N.I. Act?
3) What order?
iii) In C.C.No.274/2011
1) Whether complainant proves that the
accused has issued a cheque bearing
No.248053 dated 02.03.2010 for a sum of
Rs.3,53,270/- drawn on Punjab & Sind
Bank, Paschim Enclave, Peera Garhi Branch,
Delhi to discharge his liability?
2) Whether the complainant proves that the
accused has committed an offence
punishable U/Sec.138 of N.I. Act?
3) What order?
iv) In C.C.No.275/2011
1) Whether complainant proves that the
accused has issued a cheque bearing No.
245776 dated 18.02.2010 for a sum of
Rs.5,00,000/- drawn on Punjab & Sind
Bank, Paschim Enclave, Peera Garhi Branch,
Delhi to discharge his liability?
2) Whether the complainant proves that the
accused has committed an offence
punishable U/Sec.138 of N.I. Act?
3) What order?
6 C.C. No. 272, 273, 274, 275 &
276/2011
iv) In C.C.No.276/2011
1) Whether complainant proves that the
accused has issued a cheque bearing No.
245777 dated 21.02.2010 for a sum of
Rs.5,00,000/- drawn on Punjab & Sind
Bank, Paschim Enclave, Peera Garhi Branch,
Delhi to discharge his liability?
2) Whether the complainant proves that the
accused has committed an offence
punishable U/Sec.138 of N.I. Act?
3) What order?
10. On going through the records, documentary
evidence and by hearing the arguments of both sides I
proceed to answer the above points as follows:
Point No 1 : In the Negative
(In all five cases)
Point No.2 : In the Negative
(In all five cases)
Point No.3 : As per the final order,
(In all five cases)for the following:
REASONS
POINT NO.1 (COMMON IN ALL THE FIVE CASES):
11. All these points are taken up together to avoid
unnecessary repetitions and for the sake of convenience.
12. The complainant claims that the accused is the
proprietary concern and it was purchasing aluminum
extrusions through the invoices from them and in this regard
invoices have been raised in the name of the accused
establishment and they have been accepted by the accused.
On receiving the goods, the accused used to make partial
payments towards the invoices and thereafter the accused
C.C. No. 272, 273, 274, 275 &
7 276/2011
became defaulter in making payment towards invoices. As
per the terms of the invoices and the practice, the accused is
required to make payment towards the invoices within 30
days from the date of receiving the goods and the accused is
liable to pay interest for delayed payments. The complainant
claims that the accused was due of Rs.55,24,903/- apart
from interest. Towards the said dues, the accused has made
payment to the tune of Rs.24,00,000/- through various
cheques leaving the balance of Rs.31,24,903/- apart from
interest of Rs.3,53,270/-. Hence, the complainant claims that
the accused is due of Rs.34,78,173/-. The accused towards
the payment of said dues, issued various cheques for
discharging his liability and one among them is the cheque
bearing No.269355 dated 09.04.2010 drawn on State Bank of
Indore, Rajouri Garden Branch, Delhi for Rs.10,00,000/-
referred in C.C.272/2011,
(2) Cheque bearing No.269344 dated 25.04.2010 drawn
on State Bank of Indore, Rajouri Garden Branch, Delhi for
Rs.10,00,000/- referred in C.C.273/2011,
(3) Cheque bearing No.248053 dated 02.03.2010 drawn
on Punjab & Sind Bank, Pashchim Enclave, Peera Garhi,
Delhi for Rs.3,53,270/- referred in C.C.274/2011,
(4) Cheque bearing No.245776 dated 18.02.2010 drawn
on Punjab & Sind Bank, Pashchim Enclave, Peera Garhi,
Delhi for Rs.5,00,000/- referred in C.C.275/2011 &
(5) Cheque bearing No.245777 dated 21.02.2010 drawn
on Punjab & Sind Bank, Pashchim Enclave, Peera Garhi,
Delhi for Rs.5,00,000/- referred in C.C.276/2011. At the
request of the accused through their E-mail dated 18.04.2010
8 C.C. No. 272, 273, 274, 275 &
276/2011
and 08.05.2010, the said cheques were presented for
encashment and they came to be dishonoured on their
presentation for encashment. Hence, legal notice was issued
to the accused calling upon him to pay the cheques amount
within the stipulated period. Inspite of service of notice, the
accused neither paid the cheques amount nor replied.
13. In support of the case of the complainant, its
representative Sri. Hara Kumar got examined himself as PW-1
in all the five cases and got marked Ex.P-1 to Ex.P-10 in all
the cases. Among them Ex.P-1 is the board resolution and
Ex.P-2 is the power of attorney. The contents of Ex.P-1 &
Ex.P-2 remain undisputed and contents of said documents
shows that the PW-1 has been authorized by the complainant
company to give evidence on behalf of the company. By
relying upon Ex.P-1 & Ex.P-2, I proceed to hold that the PW-1
is authorized to give evidence on behalf of the complainant
company.
14. The complainant relied upon Ex.P-3 cheque and
Ex.P-4 endorsement issued by the banking authority by
assigning the reasons for dishonour of cheque in all the five
cases. The content of Ex.P-3 & Ex.P-4 remains undisputed.
The complainant by placing Ex.P-3 & Ex.P-4 proved that the
cheques relied upon by the complainant have been
dishonoured by the banking authorities.
15. The complainant claims that the accused was
having business transaction with them and the accused used
to make part payments. For discharging their dues towards
the complainant company, the accused issued the cheques in
Ex.P-3 in all the five cases and they came to be dishonoured
C.C. No. 272, 273, 274, 275 &
9 276/2011
on their presentation for encashment. The complainant
lodged the complaint alleging that the accused is the
proprietor of M/s. Samanvay Global Inc. The accused has
not disputed the business transaction of M/s. Samanvay
Global Inc with the complainant. The accused claims that he
was working as client manager in M/s. Samanvay Global Inc
and he left the job about 2 ½ years back. If the evidence of
the DW-1 is appreciated in totality, it shows that M/s.
Samanvay Global Inc had business transaction with the
complainant and the accused was representing M/s.
Samanvay Global Inc during the business transaction.
16. The accused disputed his proprietorship over M/s.
Samanvay Global Inc claiming that he was working as client
manager in M/s. Samanvay Global Inc and he was taking
care of purchase orders on behalf of the M/s. Samanvay
Global Inc. The accused further claims that he left the job in
M/s. Samanvay Global Inc. The suggestion made to the
accused in his cross-examination dated 05.08.2014 is as
under:
" ........It is true to suggest that when I
was working as client Manager and in-
charge of purchases, I used to place
purchase orders .........."
17. The said suggestion in the form of admission leads
to conclusion that the accused being the client manager of
M/s. Samanvay Global Inc used to place purchase orders
before the complainant company. It also leads to the
conclusion that the M/s. Samanvay Global Inc was having
business transaction with the complainant company. Even
10 C.C. No. 272, 273, 274, 275 &
276/2011
though the accused has disputed his proprietorship over M/s.
Samanvay Global Inc, the complainant has not produced any
documents to prove that the accused is the proprietor of M/s.
Samanvay Global Inc. By relying upon the suggestion in the
form of admission referred above and also by relying upon
Ex.D-1, I proceed to hold that the accused was not the
proprietor of M/s. Samanvay Global Inc.
18. The accused also disputed the cheques in all the
cases, claiming that the cheques Ex.P-3 in all five cases does
not belongs to him and they do not bear his signature. The
accused also examined Sri. Beer Prakash Ja, Branch
Manager, SBI, Vishal Branch, New Delhi as DW-2 in support
of his defence in C.C.272/2011 & 273/2011. The Ex.D-2 to
Ex.D-6 are the documents produced by the DW-2 in
C.C.272/2011 & 273/2011. The DW-2 in C.C.272/2011 &
273/2011 claims that the SBI Branch of Vishal Enclave, New
Delhi is the same branch as State Bank of Indore, Rajouri
Garden Branch and also claims that the Ex.P-3 in
C.C.272/2011 & 273/2011 are the cheques belongs to the
bank code No.30306 and it is their bank branch. The DW-2
admits that the Ex.P-3 and Ex.D-2 belongs to the different
bank account, but they are related to the same account.
19. The accused disputed the evidence of DW-2 stating
that the cheque in C.C.272/2011 & 273/2011 belongs to the
account No.53004751744 and Ex.D-2 is the document
relating to the account No.01050055093 and they are
different documents. Ex.D-6 is the certificate relied upon by
the DW-2 to show that the account No.53004751744 of M/s.
Samanvay Global Inc maintained at SBI, Vishal Enclave
Branch has been closed from 24.08.2010. The learned
C.C. No. 272, 273, 274, 275 &
11 276/2011
advocate for the accused during the course of arguments
claims that the State Bank of Indore was merged with the
State Bank of India and for the same reason, the DW-2 came
to be in possession of the documents at Ex.D-2 to Ex.D-5.
Even though the accused has disputed the cheques and his
signature by examining DW-2 and by placing Ex.D-1 to
Ex.D-6, the complainant has not opted to examine the
witness No.3 referred in his compliant Ex.P-8 in
C.C.272/2011 & 273/2011. The complainant merely denied
the evidence of DW-2 and disputed the documents marked as
Ex.D-1 to Ex.D-6. But the complainant has also not offered
any satisfactory explanation as to why he has failed to
examine the said witness before the court, if the State Bank
of Indore is in existence.
20. When the complainant has failed to examine the
witness No.3 referred in the compliant Ex.P-8 in
C.C.272/2011 & 273/2011, the contention of the
complainant that the Ex.P-3 cheque is not related to the
documents at Ex.D-2 to Ex.D-6 cannot be accepted. It is the
settled position of law that the mere bald denial of the
evidence of the DW-2 does not become defence unless it is
proved. Even though the accused has disputed the cheque
Ex.P-3 and his signature in all the five cases, the complainant
has not taken any steps nor placed materialistic evidence
before the court to prove that the cheque Ex.P-3 belongs to
the accused and it bears his signature. Even for a while if it
is presumed that the Ex.D-2 to Ex.D-6 does not belongs to
the bank account of the cheque Ex.P-3, U/s.118 & 139 of N.I.
Act, presumption that exists in favour of cheque is only a
rebuttable presumption.
12 C.C. No. 272, 273, 274, 275 &
276/2011
21. The DW-2 in C.C.272/2011 & 273/2011 clearly and
specifically stated that the Ex.P-3 cheque and Ex.D-2 account
opening form belongs to the same account. As per Ex.D-2
account opening form of State Bank of Indore, the said
account belongs to Smt. Ekta Seth. The DW-2 also produced
Ex.D-3 as the application submitted by the account holder
Smt. Ekta Seth regarding change of her signature along with
Ex.D-4 & Ex.D-5. The Ex.D-3 to Ex.D-5 shows that the
account holder Smt. Ekta Seth furnished information to the
banking authorities regarding the change of her signature.
The accused by examining the DW-2 in C.C.272/2011 &
273/2011 and by placing Ex.D-1 to Ex.D-6 rebutted the
presumption that exists in favour of the cheques Ex.P-3 in
C.C.272/2011 & 273/2011. When the accused has rebutted
the presumption that exists in favour of the cheques Ex.P-3
in C.C.272/2011 & 273/2011, the complainant shall prove
his case against the accused beyond all reasonable doubts.
22. The accused also got marked Ex.D-1 to prove that
he is not the proprietor of M/s. Samanvay Global Inc. In the
Ex.D-1 it is clearly certified by the Chief Manager of Punjab &
Sind Bank that Smt. Ekta Seth is the sole proprietor of M/s.
Samanvay Global Inc and she is holding the account
No.34105 and she is the only authorized person to operate
the bank account. The contents of Ex.D-1 show that the
accused is not the proprietor of M/s. Samanvay Global Inc.
The suggestion in form of admission referred above during the
cross-examination of the DW-1 dated 05.08.2014 also leads
to the conclusion that the accused is not the proprietor of
M/s. Samanvay Global Inc.
C.C. No. 272, 273, 274, 275 &
13 276/2011
23. Thus the evidence of the DW-2 in C.C.272/2011 &
273/2011 clearly leads to conclusion that the accused is not
holding the account in the name of M/s. Samanvay Global
Inc and he is not the proprietor of M/s. Samanvay Global Inc.
When the accused is not the proprietor of M/s. Samanvay
Global Inc, the question of accused holding cheques in the
name of M/s. Samanvay Global Inc does not survive for
consideration.
24. The accused also disputed his signature in the
cheques Ex.P-3 in all the five cases. During the cross-
examination of complainant, the accused has taken up the
specific defence that he has not issued the cheque Ex.P-3 by
affixing his signature in all the five cases as a proprietor of
M/s. Samanvay Global Inc. As per the documents placed
before the court by the DW-2 marked as Ex.D-2 to Ex.D-6,
Smt. Ekta Seth is holding the bank account of the cheque
Ex.P-3 and if the signature in the Ex.P-3 is observed with
bare eyes, it resembles the signature in Ex.D-2 to Ex.D-6. In
otherwords, prima faciely the signature on the cheque Ex.P-3
finds similarity with the signatures in Ex.D-2 to Ex.D-6.
Even though the accused has disputed his signature in the
cheque Ex.P-3, the complainant has not taken any steps to
prove that the cheque Ex.P-3 bears the signature of the
accused and the said cheque belongs to the accused. In the
absence of any materialistic expert evidence to hold whether
the cheque Ex.P-3 bears the signature of the accused or not,
court has to compare the signature on the cheque with the
signatures available on the record to hold whether the
signature on the cheque Ex.P-3 belongs to the accused or not.
Prima faciely, if the signature on the Ex.P-3 is compared with
the Ex.D-2 to Ex.D-6 it leads to the inference that the
14 C.C. No. 272, 273, 274, 275 &
276/2011
signature on the cheque Ex.P-3 is the signature of the
account holder of the cheque and the signature on the cheque
Ex.P-3 resembles the signature on the account opening form.
As per Ex.D-2 to Ex.D-6, Smt. Ekta Seth is the account
holder and the signature on the cheques Ex.P-3 is the
signature of the account holder of Ex.D-2 to Ex.D-6. These
facts leads to the conclusion that the cheque Ex.P-3 does not
bear the signature of the accused. Further, the accused also
got marked Ex.D-1 to show that he is not the proprietor of
M/s. Samanvay Global Inc and Smt. Ekta Seth is the
proprietor of M/s. Samanvay Global Inc. The complainant
has not placed any documents to prove that the accused is
the proprietor of M/s. Samanvay Global Inc.
25. The PW-1 also in his cross-examination clearly
admits that he has got no documents to show that the
accused was the proprietor of M/s. Samanvay Global Inc and
also admits that he do not know the signature of the accused.
The PW-1 in his cross-examination further admits that even
after receiving the return memo from the banking authorities
about the disputed cheques, they have not personally verified
as to who issued the cheques Ex.P-3 on behalf of M/s.
Samanvay Global Inc by putting signature. The evidence of
DW-2, the contents of Ex.D-1 to Ex.D-6 and the facts elicited
during the cross-examination of the PW-1, if appreciated in
totality along with the suggestion made during cross-
examination of DW-1 in the form of admission, leads to the
conclusion that the complainant has failed to prove that the
cheque Ex.P-3 in C.C.272/2011 & 273/2011 belongs to the
accused and he issued the said cheques in favour of the
complainant by affixing his signature as the proprietor of the
M/s. Samanvay Global Inc.
C.C. No. 272, 273, 274, 275 &
15 276/2011
26. As per the complaint averments and the affidavit
evidence of the PW-1 in all the five cases, the complainant on
receiving the cheque Ex.P-3 in all the five cases, presented
the said cheques for encashment through their banker and it
came to be dishonoured through the Ex.P-4 & Ex.P-5 in all
the five cases. The complainant on receiving the return memo
report as per Ex.P-4 & Ex.P-5, issued the legal notice as per
Ex.P-6 in all the five cases calling upon the accused to pay
the cheque amount and it was served on the addressee
through the registered post marked as Ex.P-7 in all the five
cases either on 18th or 19th of August 2010, as per the seal
affixed by the postal authority. The complainant has not
stated anything either in the complaint or in his affidavit
evidence regarding the date of service of demand notice
Ex.P-6 and the complainant also not placed any substantial
evidence to prove the date of service of demand notice, to
compute the period of limitation for filing these five
complaints. Hence, by relying upon the date i.e., visible in
the seal affixed by the postal authority on the postal
acknowledgment card marked as Ex.P-7, I proceed to hold
that the accused has been duly served with the demand
notice on 18th or 19th of August 2010, in all the five cases and
it is the date to be taken into consideration as the date of
service of notice or intimation, for the purpose of calculating
the period of limitation. As per the complaints Ex.P-8 in all
the five cases, those complaints are filed on 04.10.2010. By
considering the date of service of intimation regarding the
dishonour of cheque as mentioned in Ex.P-7 and by
considering the date of filing of the complaints available on
the complaint Ex.P-8, I proceed to hold that all the five
16 C.C. No. 272, 273, 274, 275 &
276/2011
complaints filed by the complainant is barred by limitation
and it is not in time.
27. As said in previous paragraphs the accused
disputed the cheques and his signatures in all the five cases,
claiming that the cheques Ex.P-3 in all five cases does not
belongs to him and they do not bear his signature. The
accused also examined Sri. Vinod Kumar Pande, Branch
Manager, Punjab & Sind Bank, Peera Garhi, New Delhi as
DW-2 in support of his defence in C.C.274/2011, 275/2011
& 276/2011. The Ex.D-2 is the document produced by the
DW-2 in C.C.274/2011, 275/2011 & 276/2011. The DW-2
in C.C.274/2011, 275/2011 & 276/2011 by producing the
account opening form of the account No.34105, Punjab &
Sind Bank stated that the account was under operation in the
said account number till 18.06.2011 and subsequently it is
changed as 04131600034105. The DW-2 says that as per
their bank records, Smt. Ekta Seth is the authorized
signatory of the account No.04131600034105 as the
proprietor of M/s. Samanvay Global Inc and the said account
was closed on 15.07.2014 as per their records and it is not in
operation. The DW-2 in C.C.274/2011, 275/2011 &
276/2011 clearly and specifically denied the suggestion that
the accused was operating the account. As per the contents
of Ex.P-3 cheque, the said instrument belongs to the account
bearing No.34105 of Punjab & Sind Bank. Ex.D-2 is the
account opening form of the account No.34105. The
complainant claims that the DW-2 has not produced any
documents to show that the account No.34105 was changed
as 04131600034105. Ex.D-1 is the document produced by
the accused to show that Smt. Ekta Seth is the proprietor of
M/s. Samanvay Global Inc and it is the document issued by
C.C. No. 272, 273, 274, 275 &
17 276/2011
the Punjab & Sind Bank. The contents of Ex.P-3, Ex.D-1 &
Ex.D-2 shows that all those documents are related to the
account No.34105 of Punjab & Sind Bank. Ex.P-4 is the
endorsement issued in respect of the Ex.P-3. Further, the
complainant relied upon Ex.D-4 endorsement issued by the
banking authorities with reference to the Ex.P-3. When the
contents of Ex.P-3, Ex.P-4 & Ex.D-2 regarding the account
number remain undisputed, I find no reason to disbelieve the
evidence of DW-2 and Ex.D-2, which shows the account
number of M/s. Samanvay Global Inc as 34105. Hence, by
relying upon Ex.P-3, Ex.D-1 & Ex.D-2, I proceed to hold that
the accused by placing those documents and by examining
the DW-2 in C.C.274/2011, 275/2011 & 276/2011 proved
that the cheque Ex.P-3 does not belongs to him and he is not
the proprietor of M/s. Samanvay Global Inc. Even for a while
if it presumed that the documents produced by the DW-2 as
Ex.D-2 cannot be taken into consideration as the DW-2 has
failed to place documents to show that the account No.34105
was changed as 04131600034105, by relying upon those
documents it can be clearly held that the accused has
rebutted the presumption that exists in favour of the Ex.P-3
cheque and now it is the burden cast upon the complainant
to prove his case against the accused.
28. Even though the accused has disputed the cheques
and his signature, the complainant has not opted to examine
the witness No.3 referred in his compliant Ex.P-8 in
C.C.274/2011, 275/2011 & 276/2011. The complainant
also not offered any satisfactory explanation as to why he has
failed to examine the said witness before the court. It is the
settled position of law that the mere bald denial of the case of
the accused does not become proof unless it is proved. The
18 C.C. No. 272, 273, 274, 275 &
276/2011
accused by examining the DW-2 and by placing Ex.D-1 &
Ex.D-2 rebutted the presumption that exists in favour of
Ex.P-3 cheque. The complainant has failed to take any steps
or to place any evidence to show that the cheque Ex.P-3
belongs to the accused and the accused has affixed his
signature being the proprietor of M/s. Samanvay Global Inc.
The DW-2 in C.C.274/2011, 275/2011 & 276/2011 clearly
stated that Smt. Ekta Seth was operating the bank account
being the proprietor of M/s. Samanvay Global Inc. The DW-2
in C.C.274/2011, 275/2011 & 276/2011 also denied the
suggestion that the accused was operating the account for
which the Ex.P-3 cheque belongs to. The accused by
examining the DW-2 and by placing Ex.D-2 proved that the
cheque Ex.P-3 does not bear his signature.
29. When the complainant has failed to examine the
witness No.3 referred in the compliant Ex.P-8 in
C.C.274/2011, 275/2011 & 276/2011, the contention of the
complainant that the cheque Ex.P-3 is not related to the
documents at Ex.D-2 cannot be accepted. It is the settled
position of law that the mere bald denial of the evidence of the
DW-2 does not become proof unless it is proved. Even
though the accused has disputed the cheque Ex.P-3 and his
signature in all the five cases, the complainant has not taken
any steps nor placed materialistic evidence before the court to
prove that the cheque Ex.P-3 belongs to the accused and it
bears his signature.
30. The DW-2 in C.C.274/2011, 275/2011 & 276/2011
clearly and specifically stated that the Ex.P-3 cheque and
Ex.D-2 account opening form belongs to the same account.
As per Ex.D-2 account opening form of Punjab & Sind Bank,
C.C. No. 272, 273, 274, 275 &
19 276/2011
the said bank account belongs to Smt. Ekta Seth. The
Ex.D-2 shows that the account holder is M/s. Samanvay
Global Inc and Smt. Ekta Seth was operating the account of
M/s. Samanvay Global Inc being its proprietor. The accused
by examining the DW-2 in C.C.274/2011, 275/2011 &
276/2011 and by placing Ex.D-1 to Ex.D-2 rebutted the
presumption that exists in favour of the cheques Ex.P-3 in
C.C.274/2011, 275/2011 & 276/2011. When the accused
has rebutted the presumption that exists in favour of the
cheques Ex.P-3 in C.C.274/2011, 275/2011 & 276/2011, the
complainant shall prove his case against the accused beyond
all reasonable doubts.
31. The accused also got marked Ex.D-1 to prove that
he is not the proprietor of M/s. Samanvay Global Inc. In the
Ex.D-1 it is clearly certified by the Chief Manager of Punjab &
Sind Bank that Smt. Ekta Seth is the sole proprietor of M/s.
Samanvay Global Inc and she is holding the account
No.34105 and she is the only authorized person to operate
the bank account. The contents of Ex.D-1 show that the
accused is not the proprietor of M/s. Samanvay Global Inc.
The suggestion in form of admission referred in previous
paragraphs during the cross-examination of the DW-1 dated
05.08.2014 also leads to the conclusion that the accused is
not the proprietor of M/s. Samanvay Global Inc.
32. Thus the evidence of the DW-2 in C.C.274/2011,
275/2011 & 276/2011 clearly leads to conclusion that the
accused is not holding the account in the name of M/s.
Samanvay Global Inc and he is not the proprietor of M/s.
Samanvay Global Inc. When the accused is not the proprietor
of M/s. Samanvay Global Inc, the question of accused holding
20 C.C. No. 272, 273, 274, 275 &
276/2011
cheques in the name of M/s. Samanvay Global Inc does not
survive for consideration.
33. The accused also disputed his signature in cheque
Ex.P-3 in all the five cases. During the cross-examination of
complainant, the accused has taken up the specific defence
that he has not issued the cheque Ex.P-3 by affixing his
signature in all the five cases as a proprietor of M/s.
Samanvay Global Inc. As per the documents placed before
the court by the DW-2 as per Ex.D-2, Smt. Ekta Seth is
holding the bank account of the cheque Ex.P-3 and if the
signature in the cheque Ex.P-3 is observed with bare eyes, it
resembles the signature in Ex.D-2. In otherwords, prima
faciely the signature on the cheque Ex.P-3 finds similarity
with the signatures in Ex.D-2. Even though the accused has
disputed his signature in the cheque Ex.P-3, the complainant
has not taken any steps to prove that the cheque Ex.P-3
bears the signature of the accused and the said cheque
belongs to the accused. In the absence of any materialistic
expert evidence to hold whether the cheque Ex.P-3 bears the
signature of the accused or not, court has to compare the
signature on the cheque with the signatures available on the
record to hold whether the signature on the cheque Ex.P-3
belongs to the accused or not. Prima faciely, if the signature
on the Ex.P-3 is compared with the Ex.D-2, it leads to the
inference that the signature on the cheque Ex.P-3 is not the
signature of the accused and signature on the cheque Ex.P-3
resembles the signature of the account holder Smt. Ekta Seth
on the account opening form.
34. The PW-1 also in his cross-examination clearly
admits that he has got no documents to show that the
C.C. No. 272, 273, 274, 275 &
21 276/2011
accused was the proprietor of M/s. Samanvay Global Inc and
also admits that he do not know the signature of the accused.
The PW-1 in his cross-examination further admits that, even
after receiving the return memo from the banking authorities
about the disputed cheques, they have not personally verified
as to who issued the cheques on behalf of M/s. Samanvay
Global Inc by putting signature. The evidence of DW-2, the
contents of Ex.D-1 & Ex.D-2 and the facts elicited during the
cross-examination of the PW-1, if appreciated in totality along
with the suggestion made during cross-examination of DW-1
in the form of admission leads to the conclusion that the
complainant has failed to prove that the cheque Ex.P-3 in
C.C.274/2011, 275/2011 & 276/2011 belongs to the
accused and he issued the said cheques in favour of the
complainant by affixing his signature as the proprietor of the
M/s. Samanvay Global Inc.
35. As per the complaint averments and the affidavit
evidence of the PW-1 in all the five cases, the complainant on
receiving the cheque Ex.P-3 in all the five cases, presented
the said cheques for encashment through their banker and it
came to be dishonoured through the Ex.P-4 & Ex.P-5 in all
the five cases. The complainant on receiving the return memo
report as per Ex.P-4 & Ex.P-5, issued the legal notice as per
Ex.P-6 in all the five cases calling upon the accused to pay
the cheque amount and it was served on the addressee
through the registered post marked as Ex.P-7 in all the five
cases either on 18th or 19th of August 2010, as per the seal
affixed by the postal authority. The complainant has not
stated anything either in the complaint or in his affidavit
evidence regarding the date of service of demand notice
Ex.P-6 and the complainant also not placed any substantial
22 C.C. No. 272, 273, 274, 275 &
276/2011
evidence to prove the date of service of demand notice, to
compute the period of limitation for filing these five
complaints. Hence, by relying upon the date i.e., visible in
the seal affixed by the postal authority on the postal
acknowledgment card marked as Ex.P-7, I proceed to hold
that the accused has been duly served with the demand
notice on 18th or 19th of August 2010 in all the five cases and
it is the date to be taken into consideration as the date of
service of notice or intimation, for the purpose of calculating
the period of limitation. As per the complaint Ex.P-8 in all
the five cases, those complaints are filed on 04.10.2010. By
considering the date of service of intimation regarding the
dishonour of cheque as mentioned in Ex.P-7 and by
considering the date of filing of the complaints available on
the complaint Ex.P-8, I proceed to hold that all the five
complaints filed by the complainant is barred by limitation
and it is not in time. From all these discussion, I proceed to
hold that the complainant has failed to prove his case against
the accused. Accordingly, I proceed to answer point No.1 in
all the five cases in the Negative.
POINT NO.2:
36. For the reasons discussed while answering point
No.1 and in view of my findings on point No.1 in all the five
cases, proceed to answer Point No.2 in the Negative in all the
five cases.
POINT NO.3:
37. To this point, I made the following:
ORDER
The accused in C.C.272/2011, C.C.273/2011, C.C.274/2011, C.C.275/2011 & C.C. No. 272, 273, 274, 275 & 23 276/2011 C.C.276/2011 is acquitted U/Sec.255(1) of Cr.P.C for the offence punishable U/Sec 138 of N.I. Act.
The bail bond of the accused in C.C.272/2011, C.C.273/2011, C.C.274/2011, C.C.275/2011 & C.C.276/2011 stands cancelled.
Ordered to keep the original common judgment in C.C.272/2011 and the copies kept in C.C.273/2011, C.C.274/2011, C.C.275/2011 & C.C.276/2011. (Dictated to the stenographer directly on computer, typed by him, corrected and then pronounced by me in open court on this the 11th Day of November, 2015) (B.SHARADHA) XXI ADDL. C.M.M., BANGALORE.
ANNEXURE IN C.C.272/2011 WITNESSES EXAMINED FOR THE COMPLAINANT:
PW-1 : Hara Kumar DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P-1 : Board Resolution Ex.P-2 : Special Power of Attorney Ex.P-3 : Cheque Ex.P-4 : Memo Ex.P-5 : Bank Endorsement Ex.P-6 : Copy of Legal Notice Ex.P-7 : Postal Acknowledgment Ex.P-8 : Complaint Ex.P-9 to 11: Copies of E-Mail WITNESSES EXAMINED FOR THE DEFENCE:
DW-1 : Puneeth Seth
DW-2 : Beer Prakash Ja
24 C.C. No. 272, 273, 274, 275 &
276/2011
DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D-1 : Copy of Letter Ex.D-2 : Account Opening Form Ex.D-3 : Application for change of Signature Ex.D-4 : Voter I.D. Ex.D-5 : Form No.60 ANNEXURE IN C.C.273/2011 WITNESSES EXAMINED FOR THE COMPLAINANT:
PW-1 : Hara Kumar DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P-1 : Board Resolution
Ex.P-2 : Special Power of Attorney
Ex.P-3 : Cheque
Ex.P-4 : Memo
Ex.P-5 : Bank Endorsement
Ex.P-6 : Copy of Legal Notice
Ex.P-7 : Postal Acknowledgment
Ex.P-8 : Complaint
Ex.P-9 to 11: Copies of E-Mail
WITNESSES EXAMINED FOR THE DEFENCE:
DW-1 : Puneeth Seth
DW-2 : Beer Prakash Ja
DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D-1 : Copy of Letter
Ex.D-2 : Account Opening Form
Ex.D-3 : Application for change of Signature
Ex.D-4 : Undertaking Form
Ex.D-5 : Form No.60
Ex.D-6 : Letter issued by Bank
ANNEXURE IN C.C.274/2011 WITNESSES EXAMINED FOR THE COMPLAINANT:
PW-1 : Hara Kumar DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P-1 : Board Resolution
Ex.P-2 : Special Power of Attorney
Ex.P-3 : Cheque
C.C. No. 272, 273, 274, 275 & 25 276/2011 Ex.P-4 : Memo Ex.P-5 : Bank Endorsement Ex.P-6 : Copy of Legal Notice Ex.P-7 : Postal Acknowledgment Ex.P-8 : Complaint Ex.P-9 to 11: Copies of E-Mail WITNESSES EXAMINED FOR THE DEFENCE:
DW-1 : Puneeth Seth
DW-2 : Vinod Kumar Pande
DOCUMENTS MARKED FOR THE DEFENCE: Ex.D-1 : Copy of Letter Ex.D-2 : Account Opening Form ANNEXURE IN C.C.275/2011 WITNESSES EXAMINED FOR THE COMPLAINANT:
PW-1 : Hara Kumar DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P-1 : Board Resolution
Ex.P-2 : Special Power of Attorney
Ex.P-3 : Cheque
Ex.P-4 : Memo
Ex.P-5 : Bank Endorsement
Ex.P-6 : Copy of Legal Notice
Ex.P-7 : Postal Acknowledgment
Ex.P-8 : Complaint
Ex.P-9 to 11: Copies of E-Mail
WITNESSES EXAMINED FOR THE DEFENCE:
DW-1 : Puneeth Seth
DW-2 : Vinod Kumar Pande
DOCUMENTS MARKED FOR THE DEFENCE: Ex.D-1 : Copy of Letter Ex.D-2 : Account Opening Form ANNEXURE IN C.C.276/2011 WITNESSES EXAMINED FOR THE COMPLAINANT:
PW-1 : Hara Kumar
26 C.C. No. 272, 273, 274, 275 &
276/2011
DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P-1 : Board Resolution
Ex.P-2 : Special Power of Attorney
Ex.P-3 : Cheque
Ex.P-4 : Memo
Ex.P-5 : Bank Endorsement
Ex.P-6 : Copy of Legal Notice
Ex.P-7 : Postal Acknowledgment
Ex.P-8 : Complaint
Ex.P-9 to 11: Copies of E-Mail WITNESSES EXAMINED FOR THE DEFENCE:
DW-1 : Puneeth Seth
DW-2 : Vinod Kumar Pande
DOCUMENTS MARKED FOR THE DEFENCE: Ex.D-1 : Copy of Letter Ex.D-2 : Account Opening Form (B.SHARADHA) XXI ADDL. C.M.M., BANGALORE.