Bangalore District Court
Is A Registered Partnership Firm And Is ... vs Are The Partners In-Charge Of Day To Day ... on 6 March, 2017
IN THE COURT OF THE XLII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 6th day of March, 2017
PRESENT: A. V. Patil., B.Com, LLB (Spl)
XLII A.C.M.M.,
Bengaluru City.
C C No.25802/2014
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
1. Sl.No. of the case : CC.No.25802/2014
2. The date of commence of evidence: 07.06.2016
3. The date of Institution : 22.07.2013
4. Name of the Complainant : M/s Roopa Sarees
Registered partnership Firm,
Having its registered
office at No.35
-36/2010, 2nd floor, ADC Complex,
J.M road, Bangalore - 560002
Represented by its Partner
Mr. Shashikumar G.P
Aged about 38 years.
5. Name of the Accused : 1. Arpitha Deepam,
Having its office at, 193-197
Chickpet Main road,
Bengaluru.
Rep by its Partner
Mr. K.S. Chethan.
2. Mr. K.S Chethan
Aged about 42 years
2 C.C.No.25802/2014
Partner,
M/s Arpitha Deepam
Having its office at, 193-197,
Chickpet Main road,
Bengaluru.
3. Ms. K.C. Kavitha,
Aged about 36 years,
M/s Arpitha Deepam
Having its office at, 193-197,
Chickpet Main road,
Bengaluru.
6. The offence complained
of or proved : U/s.138 of N.I. Act
7. Plea of the accused on
his examination : Pleaded not guilty
8. Final Order : Accused are acquitted
9. Date of such order : 06.03.2017.
JUDGMENT
1. This case has been registered against the accused on the basis of the complaint filed by the complainant u/s 200 of Cr.P.C. for the offence punishable u/s 138 and 142 of Negotiable Instrument Act.
2. The gist of the complainant's case is that:
Complainant is a registered Partnership Firm and is engaged in the business of wholesale of silk saree and designer saree and 3 C.C.No.25802/2014 other dress materials. It is the case of complainant that 1st accused is the registered Partnership Firm engaged in the business of retail sale of silk saree, fashion saree, dress materials etc., and 2nd and 3rd accused are the partners in-charge of day to day affairs of 1st accused Firm. Accused approached the complainant for purchase of Silk Sarees and as per the request of the accused the complainant supplied the goods under six different invoices for total amount of Rs.4,16,900/-. The accused have accepted the delivery of the goods and also acknowledge the receipt of the invoices raised by the complainant. Accused have failed to pay the entire invoice amount as per the terms and on demand made by the complainant accused had paid an amount of Rs.2,81,300/- on various dates and issued four cheques bearing No007893, 007894, 007895 & 007896 dated 10.05.2013, 15.05.2013, 20.05.2013 & 25.05.2013 for on amount of Rs.34,000/- 34,000/-, 34,000/- & Rs.33,600/- respectively drawn on ING Vysya Bank, Chickpet Branch, Bangalore towards the balance payment of aforesaid invoices. The complainant presented the said cheques for encashment on 27.05.2013 through its banker i.e. Karur Vysya Bank, Avenue Road Branch, Bangalore. However all the cheques were dishonoured for the reasons 'funds insufficient' with a memo dated 29.05.2013.
There after on 06.06.2013 the complainant got issued legal notice 4 C.C.No.25802/2014 to the accused through RPAD calling upon the accused to pay the dues within 15 days from the date of the receipt of the notice. It was duly served upon the accused on 10.06.2013. Despite service of notice accused did not come forward to clear the cheques amount as demanded in the notice. Even not issued any reply. According to the complainant, the accused has committed an offence punishable u/s 138 of N.I. Act. Accordingly the complainant filed the complaint on 22.07.2013.
3. In pursuance of the summons, the accused have appeared through Counsel and got enlarged on bail by executing necessary documents. The copy of the complaint was furnished to the accused, as required under law. As there is sufficient material, plea was recorded against the accused on 16.05.2016 and explained to the accused in their vernacular, for which the accused pleaded not guilty and claim to be tried.
4. In order to prove the case, the Partner of the complainant Firm G.P Shashikumar examined as PW1 and got marked Ex.P1 to 12 and closed the side. Then the statement u/s 313 Cr.P.C came to be recorded on 27.06.2016, wherein the incriminating evidence appearing against the accused was read over and explained. Accused have denied the incriminating evidence read over to them. Accused No.2 examined himself as DW1 and Officer of the Kotak 5 C.C.No.25802/2014 Mahindra Bank, Chickpet Branch, Bengaluru examined as DW2 and got marked Ex.D1 & 2.
5. The learned counsel for the complainant argued that accused No.2 and 3 being the partners of accused No.1 firm approached the complainant and purchased Silk Sarees under 3 different invoices. Towards payment of the said purchase the accused have issued the cheques in question. On presentation the said cheque was dishonored for the reasons insufficient funds. Therefore, the complainant got issued legal notice to all the accused. Even after receipt of the legal notice accused fails to issue any reply and not paid the cheque amount. The specific defence taken by the accused is that the cheque in question was given to one Venkatesh Babu and the same has been misused by the complainant and filed the false complaint. To substantiate the said contention accused has not filed any complaint either against the Venkatesh Babu or against the complainant for the alleged misutilization of the cheque. Further accused has not issued any reply. If really the complainant misused the cheque, certainly the accused could have initiated the legal action against the complainant and Venkatesh Babu and also could have issued reply by narrating the true facts. In the instant case, absolutely no steps have been taken by the accused in that regard. The defence taken by the complainant is not supported by any 6 C.C.No.25802/2014 evidence. Therefore, according to him the complainant placed sufficient material and proved that accused has committed on offence as alleged in the complaint. Hence, prayed to convict the accused. In support of his contention he placed reliance on following citations:
1. Criminal Appeal No.3606/2009 (Kar H C) (Padmavathi Finance Registered v/s Md.Yasuf Ali)
2. Criminal Revision Application No.17/2014 (Bombay H C)(Reshmi Consructions v/s Laxman Vithal Chunekar)
6. Per contra, the learned Counsel for the accused argued that the complainant is the partnership firm which consist four partners. The person who filed the complaint and give evidence has not produced anything to show that he is the partner of the complainant partnership firm, authorization letter at produced at Ex.P1 is singed by one of the partner Ravishankar. Hence, according to him the complaint filed by the complainant Mr. Shashikumar is bad in law. Even otherwise also the complainant has produced six invoices at Ex.P2. None of the invoices bears the signature of the accused for having received the goods. Except the invoice nothing has been produced by the complainant to prove the transaction alleged in the complaint. Accused has not received any goods from the complainant as alleged. The complainant has not produced the books of account. Since the invoice does not bear the signature of 7 C.C.No.25802/2014 accused for having received the goods the allegations made by the complainant is without any evidence. Material brought on record by the accused is sufficient to disprove the case of the complainant. Hence, prayed to acquit the accused. In support of his contention he placed reliance on a judgment reported in
1. W.P.No.5551/2010 & 5552-54/2010 (Kar H C) (Mr. Michael J Brito & Anr v/s John Emanuel Lawerence Brito)
2. 2009 CRI.L.3777 (Sanjay Mishra v/s Ms. Kanishka Kapoor @ Nikki and Anr).
7. Perused material placed on record.
8. On the basis of the above facts, the following points arise for my consideration:
1) Whether Mr.Shashikumar G P who filed the complaint proves that he is the partner of Complainant Firm and being the partner of the said Firm filed the complaint and deposes in this case?
2) Whether the complainant proves that the accused towards discharge legal recoverable debt issued 4 cheques bearing Nos.(1) 007893 for Rs.34,000/-
dated 10.05.2013, (2) 007894 for Rs.34,000/- dated 15.05.2013, (3) 007895 for Rs.34,000/- dated 20.05.2013, (4) 007896 for Rs.33,600/- dated 25.05.2013 drawn on ING Vysya Bank, Chickpet Branch, Bangalore in favour of complainant, on presentation for encashment it was returned as 'Funds Insufficient' and in spite of receipt of legal notice, the accused failed to pay the cheque amount 8 C.C.No.25802/2014 within the statutory period and thereby the accused has committed an offence punishable u/s 138 of N.I. Act?
3) What order?
9. My findings on the above points are as under :
Point No.1 and 2: In the Negative
Point No.3: As per final order, for the following:
REASONS
10. In order to prove the case, Mr.Shashikumar G P claiming to be the Partner of the complainant firm filed affidavit in lieu of examination-in-chief and has reiterated the allegations made in the complaint and oath. He also got marked documents Ex.P1 to P12.
Ex.P1 is the Authorization letter, Ex.P2 is the six carbon copies of invoices, Ex.P3 to 6 are cheques, Ex.P3(a) to Ex.6(a) are the signatures of accused, Ex.P7 to 10 are the bank memo's, Ex.P11 is the office copy of the legal notice, Ex.P11(a) to (c) are three postal receipts, Ex.P11(d) to (f) are three postal acknowledgements, Ex.P12 is the Complaint. In the cross-examination the accused have put up the specific defence that they are not due to pay any amount to the complainant and not issued any cheques in favour of the complainant. The account maintained by the accused in ICICI Bank was closed in the year 2012 and no legal notice served upon them.
11. In order to substantiate their contention accused 9 C.C.No.25802/2014 No.2/Chethan K S examined himself as DW1 and has that they never purchased the Sarees from the complainant and never issued any cheque in favour of the complainant. One Venkatesh Babu, the saree broker collected the disputed cheque from the accused with an assurance to supply the sarees. Venkatesh Babu fails to supply the sarees and subsequently he was absconded. No legal notice received from the complainant. Only after receipt of the warrant he came to know about the filing of this complaint. No offence committed as alleged by the complainant.
12. Accused also examined witness i.e, and Officer of Kotak Mahindra Bank, Chickpet Branch as DW2 and got marked Ex.D1 and
2. Ex.D1 is the is account opening form, Ex.D1(a) & (b) are signature of the accused No.2 and 3, Ex.D2 is the Customer information form.
13. This is all the oral and documentary evidence placed on by the complainant and accused in support of their respective contentions.
14. I have gone through the judgments relied on by the learned Counsel for complainant and accused in support of their respective contentions and kept in mind the views taken in the said decisions while appreciating the evidence on record and coming to the final conclusion. I respectfully agree with the views taken in the said decisions. Now let me consider the points in detail: 10 C.C.No.25802/2014
15. Point No.1:-
No.1 Complaint is filed by Mr.Shashikumar G P claiming to be the Partner of the complainant firm, and on the basis of the Ex.P1/letter of authorization. The said authorization is given by partner of the complainant Firm. It is the definite case of the accused that Mr.Shashikumar G P is not partner of complainant firm and the letter of authorization given in favour of the Mr.Shashikumar G P is not in accordance with the law and he has no proper authorization either to file complaint to depose in this case.
16. In both the decisions relied on by the learned Counsel for complainant by taking into consideration the various provisions of Indian Partnership Act has held that the partners of the firm has enforceable right under the law on behalf of the firm unless bared u/s 19(2) of Partnership Act or against the By laws of the Partnership Deed.
17. In the light of arguments now the question is whether Mr.Shashikumar G P proves that he is the partner of complainant Firm and he has authorization to file the complaint and to depose in this case as required under law. To ascertain the same we have to go through the oral as well as documentary evidence placed on record by the complainant. Before taking into consideration Ex.P1/letter of authorization it is necessary to go through the evidence given by PW1 in his cross examination recorded at page 11 C.C.No.25802/2014 No.2 of his evidence in this regard. For the sake of convenience the same is extracted and reproduced here:
"¦gÁå¢ ¸ÀA¸ÉÜUÉ £À£ÀߣÀÄß ¸ÉÃj £Á®ÄÌ d£À ¥Á®ÄzÁgÀ¢gÀÄvÁÛgÉ. ¸ÀzÀj ¸ÀA¸ÉÜ £ÉÆAzÀtôAiÀiÁVgÀÄvÀÛzÉ. D §UÉÎ zÁR¯É ºÁdj¹®è. ¤¦- 1 zÁR¯ÉUÉ ¥Á®ÄzÁgÀgÁzÀ £À£Àß ¸ÀºÉÆÃzÀgÀ gÀ«±ÀAPÀgïgÀªÀgÀÄ ¸À» ªÀiÁrgÀÄvÁÛgÉ. ¥Á®ÄzÁjPÉ ¥ÀvÀæzÀ°ègÀĪÀ J¯Áè ¥Á®ÄzÁgÀgÀÄ ¤¦-1 zÁR¯ÉUÉ ¸À» ªÀiÁr®è. J®è ¥Á®ÄzÁgÀgÀÄ M¦àUÉ PÉÆlÖ §UÉÎ °TvÀ zÁR¯É EgÀĪÀÅ¢®è. £Á£ÀÄ ¦gÁå¢ ¸ÀA¸ÉÜAiÀÄ ¥Á®ÄzÁgÀ£Éà C®è ªÀÄvÀÄÛ F zÀÆgÀ£ÀÄß zÁR°¸À®Ä £À£ÀUÉ ¸ÀÆPÀÛªÁzÀ C¢üPÁgÀ E®è JAzÀgÉ ¸ÀjAiÀÄ®è"
It is evident from the above evidence that the complainant Firm is registered Partnership Firm which consists of four partners and has not produced any document in this regard. Ex.P1 has not been signed by all the partners and he has no document to show that all the partners have given authorization to him. He denied that he is not the partner and he has no authority to file the complaint has been denied.
18. In trial accused has seriously disputed that PW1 is the partner of the complainant Firm. Sec.106 of the Indian Evidence Act states that 'when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.' In the instant case PW1 claims that he is the partner of the complainant firm, therefore entire burden is on him to prove that he is the partner of the complainant Firm. Though it has come in the evidence of PW1 that the complainant Firm is registered Partnership Firm, fails to produce relevant 12 C.C.No.25802/2014 documents to show that he is partner of complainant firm. To discharge that burden no iota of evidence is placed on record. If the registered documents of complaint Firm produced by PW1, then it would be easy to find out as to whether the PW1 is the partner of the complainant Firm. Non production of relevant documents is fatal to the case of complainant. In the absence of any documents only self interested testimony of PW1 it self is not sufficient to hold that he is the partner of the complainant firm. The said contention remains intact without any proof. In the citations relied on by the learned Counsel for complainant it has held that as per the provisions of Partnership Act the partner of the Partnership Firm has authorization under law to represent the Firm. In the case on hand, PW1 fails to prove that he is the partner of the complainant Firm and therefore the views taken by Hon'ble High Court of Karnataka and Hon'ble High Court of Bombay are not applicable to the present fact of the case. On appreciation of evidence on record in the considered opinion of this Court PW1 fails to prove that he is partner of the complainant Firm.
19. In the light of my above finding that PW1 fails to prove that he is partner of the complainant Firm. Now the next question arises for consideration is whether PW1 has proper authorization either to file the complaint or to conduct the case.
13 C.C.No.25802/2014
20. In order to show his authorization, PW1 has placed entire reliance on the Ex.P1/authorization letter. On perusal of the same noticed that on 05.05.2015 it is executed by G.P Ravi Shankar partner of the Roopa Sarees. Admittedly no documents produced by PW1 about the complainant Partnership Firm. In the absence of documentary evidence, it is difficult find out who all the partners of the complainant Firm are and whether G.P Ravi Shankar is the partner of the Roopa Sarees. Even otherwise also it has come in the evidence of PW1 that there are four partners in the complaint Partnership Firm. No particulars furnisher about those four partners. In the absence of any admissible evidence it is difficult to come to the conclusion that G P Ravishankar is one of the partner of complaint M/s Roopa Sarees. Therefore, in the opinion of this Court the authorization alleged to have given by G P Ravishankar in the absence of any other documents cannot be said is valid document which gives any authorization to PW1 to represent the complainant Firm. If ExP1/letter of authorization is excluded absolutely there is nothing on record to establish that Mr. Shashikumar G P has any authorization either to file the complaint or to conduct the case. On appreciation of evidence placed on record, PW1 utterly fails to produce any documentary evidence to show that he has proper authorization either to file complaint or to conduct the case. For the foregoing reasons in the considered opinion of this 14 C.C.No.25802/2014 Court Mr. Shashikumar G P miserably fails to prove that he is the partner of Complainant Firm and being the partner of the said Firm filed the complaint and deposes in this case as required under law. Hence, I answer this point in the Negative.
21. Point No.2 No.2::- In fact in view of my finding on Point No.1 this point does not survive for consideration. Since the full pledged trial is completed I feel it just and proper to record my finding on this point also.
22. First of all the learned counsel for accused argued that the disputed cheques have been signed by only accused No.2 and not accused No.3. As per the partnership deed both accused No.2 and 3 have to singe the cheques. In the present case as Accused No.3 has not signed the disputed cheques and therefore said cheques are not valid cheques and therefore accused have not committed any offences.
23. To substantiate this contention accused have examined the Officer of Kotak Mahindra Bank Mr.Sunil as DW2 who produced the account opening form and customer information form at Ex.D1 and 2. Since both accused noted signed the disputed cheques, the offences punishable Under Sec.138 not at all attracted.
24. Perused the records and noticed that nothing has been produjced by the accused to show that both the accused No.2 and 3 have to sign the cheques issued by the accused No.1/Firm. It is the definite case of 15 C.C.No.25802/2014 the complainant that as accused No.2 and 3 are in charge of date to day affairs of the 1st accused issued the disputed cheques. Accused have not disputed the said allegation of the complainant. In the cross examination DW2 categorically admitted that the disputed cheques returned for the reasons 'funds insufficient' and not for the reasons signature of accused No.3 is required. In the light of the evidence on record the arguments of learned Counsel for accused does not hold good and therefore cannot be accepted.
25. It is definite case of the complainant that he delivered the sarees as per the request of the accused through six invoices narrated in para No.6 of the complaint total to the tune of Rs.4,16,900/-. Accused accepted the delivery of goods and acknowledged the receipt of the invoices raised by the complainant. The accused had paid an amount of Rs.2,81,300/- on various dates and issued disputed four cheques for on amount of Rs.34,000/- 34,000/-, 34,000/- & Rs.33,600/- for the balance amount.
26. The defence of the accused is total denial. Accordingly to the accused, they have not received any goods from the complainant and have not issued disputed cheques in favour of complainant for discharge of the dues as alleged by the complainant.
27. The accused No.2 and 3 have not disputed the fact that Ex.P3 to 6/cheques pertains to accused No-1 firm and it is signed by 16 C.C.No.25802/2014 accused No.2. By virtue of Sec.118 and 139 of the N I Act and in view of the ratio lay down in catena of decisions the complainant discharged his initial burden. Hence, the presumption is in favour of the holder of the cheque i.e., the complainant. In view of the same, the burden is lies on the accused to lead the rebuttal evidence to disprove the fact that they have not issued Ex.P3 to 6/cheques to the complainant for discharge of debt or liability. Now whether the said presumption is rebutted by the accused is to be seen. To substantiate his contention accused No.2 examined himself as DW1 and has denied the allegations made in the complaint.
28. In the light of the arguments of complainant and accused now the question is whether the evidence placed on record by the accused is sufficient to rebut the presumption?. Before appreciating the evidence on record, it is necessary to note the ratio laid down by Hon'ble Apex Court of India ILR 2009 Kar 1633 (Kumar Exports V/s Sharma Carpets) In the said decision the Hon'ble Supreme Court by applying definition of the word "proved" in section 3 of the Evidence Act to the provisions of Section 118 and 139 of N.I. Act, in a trial u/s 138 of N I Act a presumption will have to be made that every negotiable instrument was drawn for consideration and that was executed for discharge of debt or liability. However, the presumption is rebuttable. Further, it has held that in trial, the 17 C.C.No.25802/2014 accused can show that consideration and debt did not exist. To rebut the statutory presumption, the accused is not expected to prove his defence beyond reasonable doubt as is expected by the complainant in criminal trial. The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration. Further, it has held that 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.
29. In another decision the Hon'ble Apex Court of India reported in AIR 2010 SC 1898 (Rangappa V/s Mohan) has held that "it is settled position that when an accused has to rebut the presumption u/s 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of 'legally enforeable debt or liability, the prosecution can fail."
30. In other words in trial, the accused can show that consideration and debt did not exist. To rebut the statutory presumption, the accused is not expected to prove his defence beyond reasonable doubt as is expected by the complainant in criminal trial. The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration. Court 18 C.C.No.25802/2014 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.
31. Keeping in mind the observations made by the Hon'ble Apex Court in the above referred decision let me ascertain as to whether the material placed on record by the accused is sufficient to rebut the presumption.
32. The defence of the accused is total denial. According to the accused, they have not received any goods from the complainant and have not issued any cheques for discharge of any debt in favour of complainant. In none of the invoices found the acknowledgement made by the accused for having received the goods. The complainant has not produced any account books to prove the transaction. In the evidence PW1 has admitted about the maintaining ledger account of the transaction made with the accused but the same has not been produced. In the light of the said submissions perused the material on record. The complainant produced three invoices and in none of the invoices we found acknowledgement from the accused for having received the goods. The said fact has been admitted by PW1 in the course of cross examination. As rightly pointed out by Advocate for accused even first two invoices 19 C.C.No.25802/2014 does not disclose the name of the accused. It is also worth to note that PW1 in the course of cross examination in categorical term admitted that the payment made by the accused has mentioned in the ledger and he has no difficulty to produce the same. Admittedly the complainant claims that the supply of goods as per invoices. To substantiate the same complainant neither produced any acknowledgement nor produced any account books which disclose the transactions alleged by the complainant. On appreciation of evidence on record except the self interested testimony of the complainant absolutely no iota of evidence produced by the complainant to show that he supplied the goods alleged in the complaint, accused paid Rs.2,81,300/- and on 10.05.2013 accused were due to pay legally enforceable debt to the tune of Rs.1,35,600/- to the complainant. The allegations made in the complaint are not supported by any positive evidence. Having regards to the facts and circumstances of this case, in considered opinion of this Court the allegations made in the complaint remain intact without any proof.
33. It is equally important to note that the complainant not produced the account books maintained in the course of business. It is the case of accused that cheque was not issued for discharge of debt, which arose in terms of transactions. Complainant fails to 20 C.C.No.25802/2014 produce any of the books of account. No explanation offered by the complainant for non production of account books. Non production of account books is sufficient to draw the adverse inference against the complainant. Defence of accused probablises that cheque was not issued by the accused for discharge of debt or liability. In the light of the evidence on record it cannot be held that the accused have issued the disputed cheques for discharge of debt or other liability and would not come within the purview of section 138 of the Act. In this regard a reference may be made of a decision of Hon'ble Apex Court reported in AIR 2006 SC 3366 (M. S. Narayana Menon Alias Mani v. State of Kerala And Another)
34. In the complaint it is specifically alleged that accused acknowledged for having received the goods, but complainant though possessing the acknowledgements fails to produce the same. Nothing has been prevented the complainant to produced said acknowledgements. Non production of acknowledgments alleged to have taken from the accused is also fatal to the case of complainant.
35. On appreciation of material placed on record by accused is sufficient to disprove the case of the complainant that the accused is legally due to pay Rs.1,35,600/- and for discharge of said dues accused No.2 and 3 have issued the disputed cheques in favour of 21 C.C.No.25802/2014 complainant. The complaint utterly fails to prove the existence of debt. When there was no existing debt the question of issuing the cheques in discharge of such debt does not arise. The evidence on record is sufficient to rebut the presumption and prove that the cheque in question was not received by the complainant for discharge of debt or liability. The accused is able to raise a probable defence which creates doubts about the existence of 'legally enforceable debt or liability'. Therefore, the burden shifts on the complainant to prove that accused issued the disputed the cheques for discharge of debt. To substantiate the claim made by the complainant absolutely no iota of evidence is produced. The ratio lay down in the citation relied on by learned Counsel for accused is squarely applicable to the facts of the present case. In the considered opinion of this Court the allegations made in the complainant against the accused remain in tact without sufficient proof. Looking from any angle the complainant fails to prove the case against the accused.
36. Basically, insertion of the panel provision under section 138 of Negotiable Instrument Act 1881, is to maintain the healthy business transaction between the people based on faith, belief and understanding. That is why, the drawer of a cheque should not be allowed to abuse the accommodation given to him by creditor. At 22 C.C.No.25802/2014 the same time, the payee or holder of a cheque cannot be permitted to use the penal provision under law as a weapon for unlawful gain or to harass the debtor. To initiate a penal action under section 138 of N.I. Act against a drawer of a chaque, there should not be any kind of lapse on lacuna on the part of the holder of the cheque. Because, the proceedings under section 138 of the Act is not for recovery of money but to punish a dishonest and incredible debtor, who intentionally tries to escape from his liability. That is why, it is the duty after complainant in a given case under the N.I. Act to place a stable and firm case on his behalf before the court. When the case of the complainant itself is shaky, unstable, untrustworthy and doubtful one, then in the opinion of this court, no presumption that is available under law will come to his help. Having regards to the material placed on record, the considered opinion of this Court looking from any angle the complainant miserably fails to establish its case u/s 138 of the N I Act as required under law. Hence, it cannot be accepted. Accordingly, I answer the point No.2 in the negative.
37. Point No.3:-
No.3 In view of my finding on point No.1 and 2, I proceed to pass the following:23 C.C.No.25802/2014
ORDER Acting u/s 264 of Cr.P.C. the accused are hereby acquitted for the offence punishable u/s 138 of N.I. Act.
The bail bonds executed by the accused No. 2 and 3 shall be in force for a period of six months as prescribed u/s 437 (a) of Cr.P.C.
(Dictated to Stenographer, transcribed and computerized by her, taken print out corrected, signed by me and then pronounced in the open court this the 6th day of March, 2017) (A. A. V. Patil) Patil XLII Addl. Chief Metropolitan Magistrate, Bangaluru.
ANNEXURE COMPLAINANT:-
LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT PW1 : Shashikumar. J.P LIST OF DOCUMENTS MARKED ON BEHALF OF THE THE COMPLAINANT:-
COMPLAINANT
Ex.P1 : Authorisation letter
Ex.P2 : Carbon copies of 6 Invoices
Ex.P3 to 6 : Cheques
Ex.P3(a) to 6(a): Signatures of accused
Ex.P7 to 10 : Bank memo's
Ex.P11 : Office copy of the legal notice
Ex.P11(a) to (c): Postal receipts
Ex.P11(d) to (f): Postal acknowledgments
Ex.P12 : Complaint
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:
DEFENCE:-24 C.C.No.25802/2014
DW1 : Chethan. K.S DW2 : Sunil
LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENCE:-
DEFENCE
Ex.D1 : Account opening form
Ex.D1(a) & (b): Signature of the accused No. 2 and 3 Ex.D2 : Customer information form (A. A. V. Patil) Patil XLII Addl. Chief Metropolitan Magistrate, Bengaluru.25 C.C.No.25802/2014
Judgment pronounced in the open court vide separate order.
ORDER XLII A.C.M.M, Bangaluru.