Bangalore District Court
Shree Kalikamba Souharda vs K V Basavaiah on 7 February, 2017
1 CC No. 624 of 2016
IN THE COURT OF THE XXVI ADDL.CHIEF
METROPOLITON MAGISTRATE, BANGALORE CITY
Dated this the 7th day of February 2017
: PRESENT:
SMT.SHEILA B.M. M.Com. LL.M.
XXVI Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C
Case No. : C.C No.624/2016
Complainant : Shree Kalikamba Souharda
Sahakari Niyamitha,
Having Office at No.45/48,
1st floor, 1st Main Road,
(Mathikere Road),
Gokula, Yeshwanthpura,
Bangalore- 54,
Branch Office
Yelahanka New Town,
Represented by its Manager,
Sri. Mohan Achar
(By Sri.BSJ - Adv.)
Accused : K V Basavaiah
s/o. Venkataiah, Major,
No.601/1, 5th Cross,
15th Main, Shankarnag
Bus stop, Kamalanagar,
2 CC No. 624 of 2016
Bangalore - 79
Working at
Head Master,
Basaweshwara High School,
Mahalakshmipuram,
Bangalore - 86
(By Sri.KL - Adv.)
Offence complained of : U/s 138 of N.I.Act.
Plea of the accused : Pleaded not guilty.
Final Order : Accused is acquitted
Date of Order : 07.02.2017
**************
3 CC No. 624 of 2016
The complainant has filed this complaint against the
Accused for the offence punishable u/s 138 of Negotiable
Instruments Act.
2. The Complainant has stated that the accused is the
member of the Complainant sahakari and had availed
personal loan and became defaulter. And on repeated
requests for refund of the amount accused had issued
cheque dated 30.10.2015 for Rs.57,285/-. When the said
cheque was presented it was returned dishonoured as
"Funds insufficient" on 31.10.2015. Legal notice was
issued on 27.11.2015. Legal notice which has been sent
through RPAD to both addresses has been returned with
shara "not claimed". The accused has failed to repay the
sum mentioned in the cheque. Hence the complaint.
3. On presentation of the complaint, cognizance and
statement of the Complainant was recorded and case was
ordered to register against the accused for the offence
4 CC No. 624 of 2016
punishable u/s 138 of Negotiable Instruments Act. Notice
was sent to the accused.
4. The accused appeared before the court through
his counsel and was enlarged on bail. Copies of the papers
were furnished to him as required u/s 207 of Cr.P.C. The
summons and the substance of the accusation for the
offence punishable u/s 138 of Negotiable Instruments Act
was read over and explained to the accused. The accused
pleaded not guilty and claimed trial.
5. The Complainant has examined its Manager as
PW1 and got marked Ex-P1 to P11. After closing the
Complainant side, the statement of the accused u/s 313 of
Cr.P.C. was recorded and the accused has denied the
incriminating evidence against him. The accused has not
chosen to lead his defense evidence.
6. Heard arguments.
5 CC No. 624 of 2016
7. The points that arise for consideration are as
under:
1) Whether the complainant proves that the
cheque bearing No.160168 dated:
30.10.2015 for a sum of Rs.57285/-
drawn on State Bank of Patiala,
Bangalore-79 returned unpaid for the
reason that the funds insufficient in the
account of the Accused? If so whether the
Complainant proves that the Legal notice
has been served on the accused?
2) Whether the accused proves that, cheque
bearing No. 160168 dated : 30.10.2015
was not issued in discharge of any legally
recoverable debt in favour of the
Complainant ?
3 ) Whether the complaint is maintainable ?
4) What order ?
8. My findings on the above points are as under:
Point No.1 : In the affirmative,
Point No.2 : In the affirmative ,
Point No.3 : In the affirmative
Point No.4: As per the final order for the
following:
6 CC No. 624 of 2016
REASONS
POINT NO.1:
9. It is undisputed fact that Ex-P2 cheque pertain to
the account of the accused and when the said cheque was
presented it has been dishonoured as "Funds insufficient"
in the account of the accused.
10. The Complainant has stated that subsequent to
the return of the cheque, legal notice was issued on
27.11.2015 as per Ex-P4. Ex-P5 is the RPAD receipt. Ex-
P6 is the RPAD acknowledgement. The Complainant has
stated that one of the RPAD cover has been returned as
"un-served". During cross-examination PW1 has denied
the suggestion that accused has not signed Ex-P6 and
however he says that witness has put short signature. He
admits that there is difference in signature Ex-P2(a) and
Ex-P6. Ex-P6 acknowledgement pertaining to the notice
sent to the residential address of the accused. The accused
7 CC No. 624 of 2016
has not entered the witness box and he has not denied that
the signature in Ex-P6 is not his short signature. Ex-P7 is
a notice sent to the official address of the accused. The
notice has been returned as 'not claimed' . The counsel for
the accused has relied upon the decision reported in 2004
(3) Crimes 505 wherein it has been held that,
"Return of the postal cover as
"intimated-unclaimed" by itself would
not amount to constructive notice when
it is not averred in complaint that
accused was evading service".
The said decision is not applicable in view of the
decision of the Hon'ble SC reported in 2002 Crl.LJ 1188
SC. In the said decision the Hon'ble SC has held.
"Once the sender establishes the fact
that notice was dispatched by the post
with correct address written thereon it
should be deemed to have been served
on the sendee unless he establishes
that it was really not served and that
he was not responsible for such non
service........ Since the case relates to
138 of Act it was primarily for the
petitioner to rebut the presumption
8 CC No. 624 of 2016
regarding service of notice sent to her
by respondent No.1"
The said decision applies to the case on hand. It is
not the case of the accused that notice has not been sent to
his correct address. Nor there is evidence to show that the
Complainant had colluded with postal authorities. The
accused has failed to rebut the presumption hence notice
can be deemed to have been served.
11. The Hon'ble SC in Appeal Crl. 767 / 2007,
indiankanoon.org/doc/272690 at para 17 has held
It is also to be borne in mind that the
requirement of giving of notice is clear
departure from the rule of Criminal Law,
where there is no stipulation of giving of a
notice before filling a complaint. Any
drawer who claims that he did not receive
the notice sent by post, can, within 15
days of receipt of summons from the court
in respect of the complaint under section
138 of the Act, make payment of the
cheque amount and submit to the court
that he had made payment within 15
days of receipt of summons (by receiving
a copy of complaint with the summons)
and therefore, the complaint is liable to be
rejected. A person who does not pay
9 CC No. 624 of 2016
within 15 days of receipt of the summons
from the court along with the copy of the
complaint under section 138 of the act,
cannot obviously contend that there was
no proper service of notice as required
under section 138, by ignoring statutory
presumption to the contrary under section
27 of the GC Act and section 114 of the
evidence act. In our view, any other
interpretation of the proviso would defeat
the very object of the legislature. As
observed in Bhaskarana case (supra), if
the giving of notice in the context of Clause
(b) of the proviso was the same as the
receipt of notice a trickster cheque drawer
would get the premium to avoid receiving
the notice by adopting different strategies
and escape from legal consequences of
section 138 of the act.
The said decision applies to the case on hand. The
accused after receiving summons from the court has not
paid the cheque amount within 15 days and therefore in
view of the above decision he cannot contend that there has
been no proper service of notice. In view of the above
discussion point no. 1 is answered in affirmative.
10 CC No. 624 of 2016
POINT NO.2
12. Once the cheque relates to the accused and his
signature on the said cheque is proved an initial
presumption as contemplated u/s. 138 of Negotiable
Instruments Act has to be raised by the court in favour of
the Complainant. Sec. 139 of the Negotiable Instrument
Act contemplates that it shall be presumed unless contrary
is proved that the holder of the cheque received the cheque
of the nature referred to in the Sec.138 for the discharge of
the whole or in part any debt or liability. The presumption
referred to u/s 138 of Negotiable Instruments Act is
mandatory presumption and in general presumption. But
the accused is entitled to rebut the said presumption.
What is required to be established by the accused in order
to rebut the presumption is different from each case under
given circumstances. But the fact remains that mere
plausible explanation is not expected from the accused and
it must be more than plausible explanation by way of
11 CC No. 624 of 2016
rebuttal evidence. In other words the defence raised by
way of rebuttal evidence must be probable and capable of
being accepted by the court.
13. The counsel for the accused has argued that the
loan agents assuring the accused that loan will be granted
had taken signature of the accused on blank paper and at
that time they also had taken three cheques from the
accused towards security ; that one of the security cheque
have been misused ; that the Complainant has filed this
false case against the accused. The accused has been able
to elicit from PW1 that signature on the photos in the
membership form will be taken. PW1 has admitted that in
Ex-P9 membership form the signature of the accused has
not been taken. PW1 has stated that the accused has
filled up the contents of Ex-P9. He however admits that
there is difference in the handwriting and other contents of
the Ex-P9. It is not the case of the accused that the
particulars furnished are false. Likewise, PW1 has
12 CC No. 624 of 2016
admitted that the ink in the signature and other contents of
Ex-P10 SB Account opening form differs. PW1 has stated
that the application has been filled by the accused and it is
in the handwriting of the accused. Anybody can fill the
forms. Merely because the form has not been filled by
different person it cannot be said that the accused has not
given the form. The accused is the Head Master. He
would not have simply signed the documents and kept
quite if there was any fraudulent acts committed by the
Complainant.
14. The accused has not stepped into the witness box
nor has produced any documents to show that blank
cheques have been issued to the Complainant. He has also
not corroborated his contention by examining any witness
in this regard. The accused has thus failed to prove that
the Ex-P2 cheque was given as security to the loan agents.
13 CC No. 624 of 2016
15. Moreover the accused has not taken any action
against the loan agents for not returning the loan papers
and three cheques which according to him has been taken.
It appears that probably to escape from the liability the
accused has build up a false story that loan agents has
taken his blank signature.
16. PW1 has stated that the accused on repeated
request for refund of the amount had issued cheque dated
13.10.2015 for a sum of Rs.57,285/- towards his loan
account. PW1 has denied the suggestion that accused is
not liable to any debt. The Complainant in support of the
contentions has produced account statement as per Ex-
P11. As per the statement the balance amount due is
Rs.41,982/- and there is dues of about Rs.9,280/-. The
Complainant has not stated as to how they arrived at a
figure Rs.57,285/- and in this regard there is no
calculation statement. The Complainant has produced
statement as per Ex-P11 by merely certifying the statement
14 CC No. 624 of 2016
and the said certificate is not in accordance with the Sec.
65B of the Evidence Act.
17. In (2014) 10 SCC 473 the Hon'ble SC in Anvar
P V vs P K Shabeer and others has held
"In the above case copy of the statement
pertaining to electronic record in evidence
not being the original electronic record was
produced it was held such statement has to
be accompanied by a certificate as specified
in sec. 65B 4 - essential ingredients of
such certificate enumerated. Hence the
certificate accompanied electronic record
VCD, pendrive, etc. which contains the
statement which sought to be given as
secondary evidence when the same is
produced in evidence. I --in absence of such
certificate secondary evidence of electronic
record cannot admitted in evidence."
The said decisions applies to the case on hand. In the
present case the account statement Ex-P11 is not
accompanied with certificate as provided u/s 65B (4) of
Indian Evidence Act as such secondary evidence of the
account statement which is a computer statement cannot
be looked into. The Complainant has not produced loan
15 CC No. 624 of 2016
agreement or any other documents pertaining to the loan to
substantiate his case that there existed legally recoverable
debt. The Complainant has failed to prove with cogent and
convincing evidence that as on the date of cheque the
accused was liable to pay Rs.57,285/-.
18. The case put forward by the accused that the
cheque was not given for the discharge of the debt appears
to be probable and convincing. The presumption u/s 118
and 139 of act would stand rebutted. The Complainant
has not placed any other acceptable evidence. In view of
the above discussion point no.2 is answered in the
affirmative.
POINT NO.3
19. The Accused advocate had contended that the
there is no proper authorization given by the Complainant
to Manager and so the complaint is not maintainable. In
16 CC No. 624 of 2016
support his contention he has relied upon the following
decision reported in
ILR 2014 page 2168 our Hon'ble High Court has
held "The complaint instituted by the appellant in the Trial
Court is not maintainable for the sole reason that X who
has signed the complaint has no authority in law to
represent the company as there is no resolution by the
company authorizing 'X' to file the complaint.
2000 DCR 219 Laxmi vs. M/s Shanmug Priya
Textiles Pvt.Ltd. the Hon'ble Madras High court has held,
"A delegate cannot re-delegate his
power complaint is not maintainable
when POA is given by Managing
Director in individual capacity and not
by the company ".
ILR 2007 Kar. 3155 the Complainant had not
produced the resolution our Hon'ble High court has held,
17 CC No. 624 of 2016
"Since company is a juristic person, any
person on behalf of the company has to
be authorized by the company and
articles of association or by separate
resolution to depose on behalf of the
company and upheld the dismissal of
the complaint is sound and proper".
20. The principles laid down in the above decisions
are taken note. In this case it has been specifically
mentioned in the authorization letter that it has been
resolved in the Board of Directors meeting to authorize Sri.
Mohanachar to sign various pleadings, petitions,
statements, memos, vakalath nama and other connected
documents in respect of all civil and criminal cases and
also to adduce evidence in all such matters before the
courts or any forum on behalf of Complainant. The counsel
for accused submitted that there is no authorization to file
complaint and so the complaint is not maintainable. On
reading of the authorization letter it is clear that the
Manager has been given authorization to sign the vakalath
18 CC No. 624 of 2016
and pleadings in criminal and civil cases which means it
also authorizes to file complaint in the broad sense. Hence
the argument of the accused with regard to the validity of
the authorization is not sustainable. For the above reasons
point for consideration is answered affirmative.
POINT No.4
21. In view of the affirmative findings on point 2 the
Complainant is not entitled for the relief sought for. In the
result I proceed to pass the following:
ORDER
Acting u/s 255(1) of Cr.P.C., the accused is acquitted for the offence u/s 138 of NI Act.
Bail bond shall be in force for the period of 6 months as provided u/s 437A Cr.P.C.
(Dictated to the Stenographer directly on computer (online dictation) and, corrected and then pronounced by me in the open court on this the 7th day of February 2017) (SHEILA B.M.) XXVI ACMM, Bangalore City 19 CC No. 624 of 2016 ANNEXURE Witnesses examined for the Complainant:
PW.1 Mohan Achar Witness examined for the accused:
NIL List of Documents marked for the Complainant:
Ex. P1 Authorization. Ex. P2 Cheque.
Ex. P2(a) Signature of the accused on the cheque.
Ex. P3 Endorsement. Ex. P4 Notice. Ex. P5 RPAD receipt two in Number. Ex. P6 RPAD acknowledgement. Ex. P7 Returned RPAD cover (opened in open court)
Ex. P7(a) Notice inside the cover.
Ex. P8 Complaint. Ex. P9 Membership application. Ex. P10 Application for opening of SB account. Ex. P11 Account statement.
List of Documents marked for the accused:
NIL XXVI ACMM, Bangalore