Bangalore District Court
Ravi Kumar vs Naresh Gowda on 29 May, 2023
KABC030966422021
Presented on : 29-12-2021
Registered on : 29-12-2021
Decided on : 29-05-2023
Duration : 1 year, 5 months, 0 days
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 29th day of May - 2023
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.37252/2021
Complainant : Ravi Kumar,
Mo.28, Kelogote,
I Main, I Cross,
Nagadevanahalli,
Kengeri Satellite Town,
Bengaluru-56.
(Rep. by Sri.S.G.Shivabasava, Adv.)
V/S
Accused : Naresh Gowda,
No.288, 3rd Cross, 2nd Main,
Near Shaneshwar Temple,
Manjunath Nagara,
Bengaluru-73.
(Rep.by Sri.Siddaraju.S, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
Judgment 2 C.C.No.37252/2021
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Acquitted.
DATE OF ORDER : 29.05.2023.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque amount of Rs.40 lakhs.
2. The brief facts of the complaint are as under:
The complainant has submitted that he is a Civil Contractor. The accused had taken materials from him by giving cheque for the said amount and the said cheque was failed to honour. The accused had availed materials from him for construction and he was due total outstanding of Rs.40 lakhs to him along with further interest as on 14.09.2021. He demanded the accused for repayment of the said outstanding amount, but accused has failed and neglected to repay the credit facility from the date of availing the materials.
Judgment 3 C.C.No.37252/2021 The complainant has further contended that finally when he demanded the accused for repayment of the outstanding dues, at that time, towards discharge of his liability, the accused has issued a cheque bearing No.000729 dated 10.08.2021 for sum of Rs.40 lakhs drawn on ICICI Bank, Hesarughatta Cross Branch, Bengaluru in his favour and assured that the said cheque would be honoured on its presentation.
The complainant has further contended that he presented the said cheque for encashment through his banker on
03.09.2021, the same came to be dishonoured with an endorsement dated 03.09.2021 stating "Funds Insufficient". Immediately, he approached the accused and intimated about dishonour of cheque and demanded for repayment of the cheque amount, but the accused has dragon the same on one or other pretext and failed to repay the cheque amount. Hence, he got issued legal notice to the accused through his counsel on 14.09.2021 by way of R.P.A.D and the same was duly served upon accused on 06.10.2021. Despite, the accused neither paid the cheque amount nor replied to the legal notice. Thus, the accused committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
Judgment 4 C.C.No.37252/2021
3. After receipt of the private complaint, this court took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to accused, wherein, he denied the same and claimed to have the defence.
5. To prove the case of the complainant, he chosen to examine himself as PW.1 and got marked Exs.P1 to P6. The PW.1 was subjected for cross-examination by the advocate for the accused.
6. Thereafter, incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same. In this case, the accused has submitted that he has no defence evidence and also he has not produced any documents.
7. Both side counsels have submitted their detailed written arguments, apart from adduced oral arguments.
Judgment 5 C.C.No.37252/2021
8. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
1) Whether the complainant proves beyond all reasonable doubt that towards discharge of legally recoverable debt or liability, the accused has issued Ex.P1 - cheque in his favour and the same came to be dishonoured for the reasons 'Funds Insufficient' and even after service of notice, the accused has failed to repay the cheque amount and thereby accused has committed an offence punishable under Section 138 of N.I.Act?
2) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Negative Point No.2 : As per final order, for the following:
REASONS
10. POINT No.1: The complainant has filed this complaint for an offence punishable under Section 138 of Negotiable Instruments Act against the accused and prayed to punish the accused for an offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 6 C.C.No.37252/2021
11. In support of his case, the complainant filed his affidavit and himself examined as PW.1, wherein, he has reiterated the averments made in the complaint. In support of his contention, he relied upon the documents at Exs.P1 to P6. Among them, cheque bearing No.000729 for sum of Rs.40,00,000/- dated 10.08.2021, drawn on ICICI Bank, Hasargatta Cross Branch, Tumkur Road, Bengaluru is marked as Ex.P1. The signature of accused is marked as Ex.P1(a). Ex.P2 is the Bank Endorsement issued by HDFC Bank Ltd., the contents of Ex.P2 disclose that the cheque bearing No.000729 drawn for Rs.40,00,000/- was dishonoured for the reasons "Funds Insufficient". Ex.P3 is the Legal Notice dated 14.09.2021, the recitals of Ex.P3 disclose that the complainant has issued this notice to the accused through his counsel. By issuing this notice, complainant called upon the accused to repay the cheque amount of Rs.40,00,000/- within 15 days from the date of receipt of notice. Ex.P4 is the Postal receipt. Ex.P5 is the unserved R.P.A.D cover and Ex.P6 is the Track consignment. The PW.1 was subjected to the cross-examination by the advocate for the accused.
12. The main contention of the complainant is that he is a Civil Contractor, for construction, the accused had availed materials from him and he was due total outstanding amount of Rs.40 lakhs Judgment 7 C.C.No.37252/2021 along with further interest, towards payment of the due outstanding amount, the accused has issued a cheque bearing No.000729 dated 10.08.2021 for a sum of Rs.40 lakhs, drawn on ICICI Bank, Hesarughatta Cross Branch, Bengaluru in his favour, when he presented the said cheque for encashment, the same came to be dishonoured for the reasons "Funds Insufficient" and after issuance of demand notice, the accused has not paid the cheque amount to him. The said contention of complainant was strongly denied by the accused by way of cross-examining PW.1.
13. During the course of cross-examination of PW.1, the accused has taken his contention that the complainant has taken the alleged Ex.P1-cheque from him forcibly in the police station, he has not availed any construction materials from the complainant and not issued the Ex.P1-cheque to the complainant for discharge of legally enforceable debt. Further, in the 313 of Cr.P.C statement, the accused has stated that there is no transaction between himself and complainant and professionally he does not know the complainant.
14. On perusal of the instant complaint in paragraph Nos.2 & 3, it is stated as under:
Judgment 8 C.C.No.37252/2021 "The accused had taken materials from him by giving cheque for the said amount mentioned as above and have failed to honour the same.
The complainant submits that certain amounts are due and liable to the complainant from the accused........ had availed materials for construction, now the total outstanding of Rs.40 lakhs along with further interest is due as on 14.09.2021."
15. In the cross-examination, the PW.1 has deposed that:
"ನನ ದದರನಲ ಆರದರಪಗ ಮಟರರಯಲಗಳನನ
ನ ಸರಬರಜನ
ಮಡರನತತರನನದನ ಹರಳಲಲ."
16. Further the PW.1, in his cross-examination, has deposed that:
"ದದರನಲರನವ ವಷಯಗಳನನ
ನ ಓದರನವದಲಲ. ದದರನಲರನವ
ವಷಯಗಳನನ
ನ ಓದ ತಳದನಕದನಡನ ಸಹ ಮಡಲನ ನನಗರನನ ತದನದರ
ಇರಲಲಲ ಎನದರ ಸಕಯನ ನನಗ ಸಕಷನ
ಷ ಸಮಯ ಇಲಲದದರನದ
ಓದಲಲವನದನ ನನಡಯನತತರ. ನನನ ಲರಗಲ ನದರಟಸನನ
ನ
ನದರಡಲಲ..........ಆರದರಪಗ ನರರವಗ ರದರ 40 ಲಕ ಹಣ ವರರವಣ ಮಡರನತತರನನದನ ತದರರಸಲನ ದಖಲಗಳನನ ನ ಸಲಸಲಲ. ಸಕ ಮನನದನವರದನ, ಆರದರಪಯನ ಹರಳದ ಅಕನಟಗ ಹಣವನನ ನ ವರರವಣ ಮಡರನತತರನನದನ ನನಡಯನತತರ ಯವ ಅಕನಟಗ ನನನ ಹಣವನನ ನ ವರರವಣ ಮಡರನತತರನನದನ ಅದರ ವವರಗಳನನ ನ ನನನ ದದರನಲ ಹರಳಲಲ."
17. On carefully reading of the complaint, it appears that the complainant has stated that the accused has availed materials from him for construction and the accused was due total Judgment 9 C.C.No.37252/2021 outstanding amount of Rs.40 lakhs along with further interest as on 14.09.2021. It is not the case of complainant that he had transferred an amount of Rs.40 lakhs to the account of accused. But it is the case of complainant that he supplied construction materials to the accused and the accused was due total outstanding amount of Rs.40 lakhs to him. The complainant at one stretch in his cross-examination deposed that he did not state in his complaint that he supplied materials to the accused, in another stretch he deposed that he did not read the facts of complaint. In another stretch once again he deposed that as per instructions of accused, he transferred an amount of Rs.40 lakhs. The above own versions of complainant given in the cross- examination are contradictory to the averments of complaint.
18. The above contradictory versions, itself creates doubt regarding genuineness of transaction held in between complainant and accused. On relying these type of contradictory statements given by the complainant in the cross-examination, it is difficult to come to conclusion that complainant has supplied materials and accused was due total outstanding amount of Rs.40,00,000/- along with further interest to him and towards discharge of his liability, the accused has issued the Ex.P1-
cheque. If really, the complainant has supplied construction Judgment 10 C.C.No.37252/2021
materials to the accused, definitely he would have taken the same contention in his cross-examination and he would have produced materials supply bills or acknowledgments before this court, but till the fag end of the case, he did not chosen to do so.
19. Further, in the cross-examination, the PW.1 has deposed that:
"ನನನ ಬಲಜ ಟಟರಡರರನ ಮಲರಕರದ ವಶಶ ರವರ ಬಬನಕ ಖತಗ ಹಣ ವರರವಣ ಮಡರನತತರನನದರ ಸರ............. ಜಲಹಳಳ ಪರಲರ ಠಣಯಲ ದಖಲದ ಪಟಕರಣದಲ ವಶಶ ರವರನ ಆರದರಪ ಇರನವದಲಲ ಎನದರ ಸರ. ನನಗಲರ ಅಥವ ನಮಮ ಸನಸಸಯಗಲರ ನರರವಗ ನ ಆರದರಪಯ ಖತಗ ವರರವಣ ಮಡಲಲ ಎನದರ ಸರಯಲಲ."
ಹಣವನನ
20. On going through the said testimony of PW.1, it appears that the complainant has transferred an amount of Rs.40 lakhs to the account of Vishwa, who is the proprietor of Balaji Traders and not to the account of accused herein. If really, the accused has given instruction to the complainant for transfer of amount to the account Vishwa and as per instructions of accused, if the complainant has transferred an amount of Rs.40 lakhs to the account of Vishwa, who is the proprietor of Balaji Traders, what prevented him to adduce the evidence of said Vishwa, who is the material witness before the court, but the complainant did not try to adduce the evidence of said Vishwa before the court. If at all, as per instructions of accused, he transferred an amount of Rs.40 Judgment 11 C.C.No.37252/2021 lakhs to the account of Vishwa through his account, what prevented him to produce his bank statement or bank passbook before the court, but in this regard also he did not chose to produce cogent and convincing materials before the court.
21. During the course of arguments, the complainant's counsel has filed his detail written arguments along with some police papers. On perusal of the said police papers, it appears that the complainant herein has filed a case against the accused herein, Ramesh and others. The facts and circumstances of that police papers and the facts and circumstances in the present case on hand are totally different. Therefore, on relying such police papers, it is difficult to come to conclusion that the accused has issued the questioned cheque to the complainant for discharge of legally enforceable debt. As discussed above, the complainant has utterly failed to prove that the accused has issued Ex.P1- cheque for discharge of legally recoverable debt of Rs.40,00,000/-.
22. The learned counsel for accused has vehemently argued that no transactions were taken place between both the parties. The complainant has taken different contentions in his legal notice, complaint, affidavit evidence and in his cross-examination.
Judgment 12 C.C.No.37252/2021 Mere issuance of cheque and admission of the signature on the cheque is not a proof of receiving of amount from the complainant. Hence, he prayed to dismiss the complaint.
23. On carefully perusal of the entire materials available on record produced by the complainant, no documents speak that the accused availed construction materials from the complainant and the accused was due an amount of Rs.40,00,000/- to him. As discussed above, the complainant has utterly failed to prove that the accused has issued Ex.P1-cheque for discharge of legally recoverable debt of Rs.40,00,000/-. When the complainant has failed to prove his claim as the amount involved in the cheque at Ex.P1 is the existence of legally recoverable debt, it is the reverse burden on the complainant to prove his case beyond all reasonable doubt.
At this juncture, it is well worthy to cite the decision reported in 2008 AIR SCC 7702 (P. Venugopal V/s.Madan P. Sarathi), wherein, it was pleased to held by the Hon'ble Division Bench of the Hon'ble Apex Court that:
"The presumption raised does not extent to the expenditure that cheque was issued for the discharge of any debt or liability. Which is required to be proved by the complainant. However, it is essentially a question of fact".
Judgment 13 C.C.No.37252/2021 In another decision reported in AIR 2008 SC 278 between John K John V/s. Tom Verghees, wherein the Hon'ble Apex court was pleased to observed that:
"The presumption under Section 139 could be raised in respect of some consideration and burden is on the complainant to show that he had paid amount shown in the cheque. Whenever there is huge amount shown in the cheque, though the initial burden is on the accused, it is equally necessary to know how the complainant advanced such a huge amount".
24. From the point of above dictums also, it was the reverse burden casted upon the complainant to establish the very case beyond the reasonable doubt in order to convict the accused. In that regard, as discussed earlier, the complainant has utterly failed to demonstrate that he had supplied construction materials to the accused.
25. Further the accused has taken contention that the legal notice sent by complainant was not served to him. The complainant has stated that the demand notice sent by him to the correct address of accused and the same was duly served upon accused. In support of his contention, the complainant has produced Ex.P6Track Consignment issued by postal authority.
Judgment 14 C.C.No.37252/2021 On carefully perusal of the Ex.P6, it appears that the Event Details of Consignment Number RK462280757IN item delivery confirmed on 06.10.2021.
26. On carefully perusal of admitted address and the address mentioned in the cause title of complaint and legal notice - Ex.P3, it appears that these addresses are one and the same. In order to disprove the service of demand notice, the accused did not try to adduce the evidence of concerned post master, who got issued Ex.P6. It appears that the complainant has sent the demand notice to the correct address of accused and the same got served on him. Therefore, the accused cannot say that the legal notice was not served on him and he does not aware about the notice sent by the complainant.
At this juncture, it is relevant to cite the decision reported in 2006 (4) KCCR 2375 in the case of Mr.Umraz Khan and others V/s. Mr.A.Jameel Ahmed and another. Wherein, Hon'ble High Court of Karnataka was pleased to held that:
"Once there is proof of posting of notice to correct address, it is deemed to have been served, the judgment of acquittal is bad in law".
27. On going through the said dictum, it is also made clear that if the notice was sent with correct address of the accused, it is Judgment 15 C.C.No.37252/2021 suffice to draw the inference that the notice was duly served on the accused. If the accused failed to accept the notice and failed to claim the notice sent to him under register post, there is deemed service of notice upon him. In the present case on hand, it appears that the address mentioned in the cause title of complaint and legal notice are one and the same. From which, it made clear that the legal notice as required under Section 138(b) of Negotiable Instruments Act was served upon accused and complainant has complied the Section 138(b) of Negotiable Instruments Act.
28. In this case on hand, the complaint failed to prove the alleged transaction, it can be gathered the probability that the accused is not liable to pay Ex.P1 cheque amount of Rs.40,00,000/- and it is not legally recoverable debt. On perusal of the oral and documentary evidence placed on record, it is crystal clear that accused has made out a probable defence which clearly rebut the presumptions raised in favour of complainant. Accused has proved that Ex.P1 cheque was not issued in favour of complainant for discharge of legally recoverable debt of Rs.40,00,000/-. The accused has taken his defence at the earliest point of time, while recording of accusation and statement Judgment 16 C.C.No.37252/2021 under Section 313 of Cr.P.C. by way of denial. The evidence placed on record clearly probablized that complainant has failed to prove that accused issued the cheque for discharge of liability of Rs.40,00,000/-. Therefore, as discussed above, the complainant has utterly failed to prove the guilt of the accused for the offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt. Accordingly, I answered the Point No.1 in the Negative.
29. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
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 cash security/surety bond of the accused stands cancelled. (Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 29 th day of May - 2023) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 17 C.C.No.37252/2021
ANNEXURE
List of Witnesses examined on behalf of Complainant:
PW-1 : Ravikumar List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Ex.P1(a) : Signature of accused Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Ex.P4 : Postal receipt Ex.P5 : Unserved R.P.A.D cover Ex.P6 : Track consignment
List of Witnesses examined on behalf of the defence:
- None -
List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 18 C.C.No.37252/2021 29.05.2023. 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 cash security/surety bond of the accused stands cancelled.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.