Bangalore District Court
M/S. Srimatha Mahila Sahakari vs Mr.B.S.Manjunath on 26 March, 2021
1 CC 22054 of 2016
IN THE COURT OF THE XXVI ADDL.CHIEF
METROPOLITON MAGISTRATE, BANGALORE CITY
Dated this the 26th day of March 2021
:PRESENT:
SMT.ROOPA K., BAL, LLB.
XXVI Addl.C.M.M., Bangalore City.
JUDGMENT U/S 355 OF Cr.P.C
Case No. : C.C No.22054/2016
Complainant : M/s. Srimatha Mahila Sahakari
Bank Niyamitha,
No.403/803, VIII Main Road,
X Cross, Shasthrynagar,
BSK II Stage,
Bangalore - 560 070.
Represented by its
Manager,
Smt.Premakala
(By S.S.Srinivasa Rao- Adv.)
Vs.
Accused : Mr.B.S.Manjunath,
Proprietor,
M/s.NRS Travels,
Residing at No.322, III Stage,
4th Block, 8th Main,
Basaweswaranagar,
Bangalore - 560 079.
(By Narji A. Sadananda - 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 : 26.03.2021.
2 CC 22054 of 2016
JUDGMENT
This complaint is filed by the Complainant against the Accused for the offense punishable u/s 138 of Negotiable Instruments Act.
2. The brief facts of Complainant case is that, complainant is Co-operative bank registered under Karnataka Co-operative Societies Act. The accused is the member of Complainant society and one Smt.Dakshayini T S has applied for loan of Rs.30 lakhs from Complainant for the purpose purchase of vehicle bearing No.KA-01-C-8867 Hi-tech bus for passengers of Ashok Leyland vide application dated 05.10.2011. the Complainant society sanctioned and disbursed Rs.30 lakhs on 08.10.2011. The accused has stood as a guarantor to the said loan transaction. The accused and Dakshayini T S . have executed loan documents. After availing the loan they have not repaid the loan amount as per the terms of said loan. Therefore the Complainant has issued notice and reminders to the borrower. In-spite of issue of several notice and reminders, they have not paid the 3 CC 22054 of 2016 amount. Therefore the Complainant filed a dispute before Joint Registrar of Co-operative Societies, Bangalore for recovery of loan dues vide dispute No.UBF/690/2015-16.
3. Further, in the said proceedings the accused has appeared and undertaken to repay the loan and issued cheque bearing No.083230 dated 30.07.2016 drawn on M/s. Tumkur Grain Merchants Co-operative Bank Ltd. Basaveshwaranagar Branch, Bangalore for Rs.29,21,120/- towards discharge of liability. On presentation of the same for encashment the cheque was returned with an endorsement as "Funds insufficient" with bankers memo dated 04.08.2016. After receiving the endorsement, the Complainant society issued legal notice on 06.08.2016 through RPAD, the same was served to the accused. In-spite of service of notice he has not paid any amount. Hence the complaint.
4. After filing this complaint, this court took cognizance of the offence and registered the criminal case against the accused on basis of sworn statement affidavit and documents produced along with it. Thereafter the summons was issued 4 CC 22054 of 2016 to accused, in response to summons, he appeared before the court through his counsel and he was enlarged on bail. Thereafter plea was recorded and accused pleaded not guilty and claimed to be tried.
5. The Complainant society represented by its - Manager by name Smt. Premakala has been examined as PW1 and she has produced 18 documents as per Ex-P1 to 18. After closure of Complainant evidence, the statement of accused under section 313 of Cr.P.C. was recorded and explained incriminating evidence appeared against him. The accused denied the incriminating evidence. The accused has not adduced any defence evidence, during the cross-examination of PW1 got confronted one document as per Ex.D1.
6. I have heard the arguments of both sides.
7. After hearing the arguments and on perusal of entire evidence available on record the following points arise for consideration.
5 CC 22054 of 2016
1) Whether the Complainant society proves that, the accused to discharge of legally recoverable debt or other liability issued the alleged cheque bearing No.083230 dated 30.07.2016 drawn on M/s. Tumkur Grain Merchants Co-operative Bank Ltd.
Basaveshwaranagar Branch, Bangalore for Rs.29,21,120/-?
2) Whether the Complainant society proves that, on presentation of said cheque, same was returned unpaid as "Funds insufficient" and despite of giving legal notice, he failed to pay the cheque amount, thereby he committed an offence punishable under section 138 of NI Act ?
3) What order?
8. My findings on the above points are as under:
Point No.1: In the Negative, Point No.2: In the Negative, Point No.3: As per the final order for the following:
6 CC 22054 of 2016 REASONS POINT NO.1 and 2 :
Both points 1 and 2 are taken up together for common discussion to avoid repetition.
9. The Complainant society represented by its manager by name Smt.Premakala who has been examined as PW1 by way of an affidavit which is replica of complaint averments. In support of her chief evidence she has also produced 18 documents as per Ex.P1 to P18. According to the Complainant the accused being a guarantor has issued the alleged cheque herein towards discharge of his liability towards the loan borrowed by one Smt.Dakshayini T.S. Further on presentation of said cheque, the same was returned unpaid as "Funds insufficient" on 04.08.2016 as per Ex.P3. Thereafter Complainant society issued the demand notice to the address of accused and same was served,
10. Per contra, it appears from the cross examination of PW1 that the accused has contended that, PW1 has no valid authorization to file and to depose in this case; further he has 7 CC 22054 of 2016 not issued the alleged cheque for discharge of liability as contended by the Complainant. The blank cheques which were given as security for another loan transaction, were misused and filed the false case. Therefore he contends that, he is not liable to pay the amount under the cheque. On such other ground he prays to dismiss the same.
11. Before discussion of evidence and documents on record, it is necessary to mention that, what is the legal position of law u/s 138 of NI Act. Because it is true that, once the issuance of cheque is admitted by the accused/drawer, the presumption under sec.139 of the NI Act comes into play.
12. As per the said sec.139 NI Act, it shall be presumed that the issuance of cheque was for the discharge, in whole or in part, of debt or other liability. The effect of the presumption has been explained in the judgments of the Hon'ble Supreme Court in Rangappa v/s Mohan reported in (2010) 11 SCC
441. It has been held time and again that the said presumption is a rebuttable one and its only effect is to shift the initial burden of proof on the accused.
8 CC 22054 of 2016
13. It is also well settled that in order to rebut the presumption and shift back the burden of proof on the complainant, the accused is only required to raise a probable defence and he cannot be expected to discharge an unduly high standard of proof i.e. standard of proof for rebutting the presumption raised under sec,139 NI Act is "preponderance of probabilities". It is also well settled that the accused can rebut the said presumption either directly or by bringing on record preponderance of probabilities by reference to the circumstances upon which he relies. The accused, for this purpose, is also entitled under law to rely upon all the evidence led in the case including that of the complainant as well.
14. It is also held that sec.139 NI Act is an example of reverse onus clause and the accused cannot be expected to disprove the existence of legally recoverable debt or liability by direct evidence. In fact, it is also conceivable that in some cases, the accused may not need to adduce evidence of his own. However, at the same time it is also to be remembered that bare denial of the existence of legally enforceable debt or other liability cannot be said to be sufficient to rebut the presumption 9 CC 22054 of 2016 and something which is probable has to be brought on record to shift the onus back to the complainant.
15. In the back ground of rival contention of both the parties, let me see whether the complainant is succeed in proving its case or the accused is succeed in probablise his defense to rebut the presumption available in favour of complainant under section 139 of NI Act.
16. Firstly. the learned advocate for accused has cross- examined PW1 at length. It was suggested to PW1 that, she has no valid authorization to file the case and to depose on behalf of the Complainant and same was created. It was suggested as follows:
" ಸಸ ಇಚಸ ಹಹಳಕಯ ಜಜತಗ ಅಧಕರ ಪತ ತವನನ ನ ಹಜರನಪಡಸದನ . ಸದರ ಅಧಕರ ಪತ ತವ ದಜರನ ದಖಲಸನವ ಸಸದರರದಲ ಇದದದದರ ಅದನನ ನ ದಜರನ ಜಜತಗ ಹಜರನ ಪಡಸನತತದ ಎಸದರ ಸಕ ಆ ಸಮಯಕಕ ಅಧಕರ ಪತ ತ ಇರಲಲಲ ಎಸದನ ನನಡಯನತತರ ನಸತರ ಸಸಇಚಸ ಹಹಳಕಯ ಸಮಯದಲ ಅಧಕರ ಪತ ತವನನ ನ ಪಡದನಕಜಸಡನ ನನಯಲಯಕಕ ಹಜರನಪಡಸದನ ಎಸದರ ಸರ. ಸದರ ಅಧಕರ ಪತ ತವನನ ನ ದನಸಕ 05.09.2016 ಎಸದನ ಹಸದನ ದನಸಕವನನ ನ ನಮಜದಸ ಪಡದನಕಜಸಡದನ ಎಸದರ ಸರ" .
10 CC 22054 of 2016
17. Thus the learned advocate for accused has submitted in his argument that as on date of filing of complaint PW1 has no valid authorization to file the case and also submitted that, PW1 has clearly admitted that at the time of sworn statement she has obtained authorization letter by mentioning the earlier date.
18. In addition to that, after completion of evidence and after the arguments on accused side, the complainant has produced board resolution extract as per Ex.P17 and P18. On perusal of Ex.P17 which is dated 12.05.2015 and Ex.P18 is dated 27.01.2015 after the para no.(e) it was mentioned at 'resolved that Manager to represent bank to sign to give evidence, present or take back documents in legal proceedings.' Therefore PW1 has produced this document showing that in the board meeting dated 27.01.2015 it was resolved by the board that the CEO can authorize the Manager to represent the bank etc...
11 CC 22054 of 2016
19. In this regard the learned advocate for accused has cross examined PW1 and suggested that at Ex.P18 after para no(e), there was no paragraph number, the same was created to patch up the lacuna which was elicited in the cross- examination.
20. Further PW1 denied the suggestion that, the said matter mentioned as 'resolved' at Ex.P18 was not in the agenda of said meeting. Further admitted the suggestion that, she has not produced the document to show that the agenda matters mentioned at Ex.P17 and 18 were approved in the next meeting.
21. The accused strongly contended that, Ex.P1 is not a valid authorization and PW1 has no valid authority to depose in the case. It is true that from the cross-examination of PW1 dated 19.05.2018, she has clearly admitted that as on date of filing of case, she was not having authorization letter, at the time of sworn statement, she has obtained the same by mentioning the earlier date.
12 CC 22054 of 2016
22. In this regard the learned advocate for accused relied upon a decision of Hon'ble High Court of Karnataka reported in 2001(6) KLJ 193 in between Dr. Umagangadhar vs. Classic Coffee and Spices Pvt. Ltd., Chikkamagaluru wherein it was held that, there should be proper authorization by a company of a person to launch a prosecution on behalf of the company, from the time of filing of the complaint, in absence of the which the prosecute would not be validly launched and is to be quashed. And also held that, the prosecution launched on behalf of the company by a person not authorized on the date of filing of the complaint, cannot be regularized by subsequent authorization by the company, since the complaint was not maintainable on the date of its filing.
23. In another decision reported in ILR 2007 KAR 3155 in between Director Maruti Feeds and Farms Pvt. Ltd., vs. Basanna Pattekar wherein it was held by, Hon'ble High Court of Karantaka that, since the company is a juristic person, any person on behalf of the company has to be authorized by the company under the Articles of Association or by a separate 13 CC 22054 of 2016 resolution to depose on behalf of the company and the Judgment of acquittal was upheld.
24. The learned advocate for accused also relied upon the decision reported in LAWS(KAR) 2009 131 in between GOVINDA RAM CHANANI VS. LATHA wherein it was held that, cheque was issued to the partnership firm, the Complainant must necessarily be a payee or holder in due course or must be an authorized person to file complaint on behalf of the payee or holder in due course. A person who is handling the whole business affairs and management of the partnership firm cannot file the compliant in absence of authority.
25. Another decision reported in ILR 2007 KAR 5126 in between Omshakthi SC/ST and Minority Credit Co- operative Society Ltd. Vs. M.Venkatesh wherein it was held that, presentation of the complaint by the society through its President without authorization is bad in law.
26. Thus, the learned advocate for accused has vehemently submitted in his argument that, on the date of 14 CC 22054 of 2016 filing of the case, PW1 has no valid authorization, hence the same is not maintainable.
27. On the other hand, the learned advocate for Complainant has submitted that as per Ex.P18 the Manager of the Complainant society was duly authorized in the Board Resolution. As on date of filing of the case, she was having authority. Further submitted that, substantive rights should not be allowed to be defeated on technical grounds of procedural irregularity.
28. In this regard he relied upon the decision of Hon'ble Supreme Court reported in 1996 (6) SCC 660 in between United Bank of India vs. Naresh Kumar and others, wherein it was observed by Hon'ble Supreme Court that, a person may be expressly authorize to sign the pleadings on behalf of the company, for eg. the Board of Directors passing a resolution to that effect or by a Power of Attorney being executed in favour of any individual. In absence there off and in cases where pleadings have been signed by one of its officers the Corporation can ratify the said action of its officer in signing 15 CC 22054 of 2016 the pleadings. Such ratification can be expressed or implied. And also observed that, substantive rights should not be allowed to be defeated on technical grounds of procedural irregularity so as to ensure that no in-justice done to any party.
29. Therefore the learned advocate for Complainant has submitted in his arguments that, mere on irregularity the substantive right of Complainant society cannot be defeated, just because the PW1 has admitted in her cross-examination that, there was no authorization as on date of filing of the case.
30. I have gone through the above cited decisions, which were relied by the learned advocate for accused and learned advocate for Complainant as well. The benefit of the ratio held by the Hon'ble Supreme Court in 1996 (6) SCC 660 is not applicable to the case on hand for the simple reason that, the facts and circumstances of the case herein are totally different.
16 CC 22054 of 2016
31. Further the ratio laid down by the Hon'ble High Court of Karnataka in the above cited supra, on which the learned advocate for accused has relied, were amply applicable to the case on hand. Admittedly as on date of filing of the cae PW1 was not duly authorized by the CEO as per the Board Resolution.
32. Admittedly the authorization letter was obtained at the time of sworn statement by mentioning the earlier date. Therefore subsequently though the Complainant has produced the Board Resolution extract, but there was no specific resolution in favour of Manager of Complainant society to file the case on hand against the accused. Under such circumstances this court is of the considered opinion that, as on date of filing of the case PW1 / Manager of the Complainant Society was not having valid authorization.
33. Secondly, it was contended by the accused that, the alleged cheque was given to another loan transaction at Complainant society and the same was misused and filed the false case. According to the Complainant the alleged cheque 17 CC 22054 of 2016 was given by the accused after filing the dispute before Joint Registrar of Co-operative Societies. PW1 has also admitted in her cross-examination at page 7 that, the accused has given the alleged cheque after filing dispute before JRCS. She has also admitted that, they have not mentioned the same in Ex.P12 about the issuance of alleged cheque by the accused. She has also admitted that, there was no difficulty to them to mention about the issuance of alleged cheque by the accused in JRCS proceedings. Though she denied the suggestion that, the accused has not given the alleged cheque during pendency of JRCS proceeding, but admitted that she has not produced any document to show that the accused has given alleged cheque for discharge of his liability before JRCS proceedings.
34. It is pertinent to note that, admittedly the Complainant has not produced any other document for having receipt of the alleged cheque from the accused to discharge the liability as a guarantor. On perusal of Ex.P17 - Meeting of Board Directors of Complainant society held on 12.05.2015. At page No.2 last para - it was mentioned as "it was decided 18 CC 22054 of 2016 to file the suit against all 16 vehicle loan borrowers, also against Mr.Manjunth B.S. and Vasanth Kokila who have given cheque as guarantor to loan "
35. Thus, from this averment at Ex.P17 it shows that the alleged cheque was obtained much earlier either it may be at the time of sanction of loan or subsequently, but before the alleged date of board meeting. The Ex.P2 is dated 30.07.2016 and same was presented to the bank on 04.08.2016. if really the accused has issued the alleged cheque on 30.07.2016 during pendency of JRCS proceeding; certainly the same could have mentioned in the order sheet, but admittedly it was not mentioned.
36. If it is considered for a while, that as per Ex.P17 they have collected cheque from the accused and Smt.Vasanth Kokila much prior to the date of Ex.P17; they would have issue notice to the accused before presentation of the cheque to the bank calling upon the accused to maintain sufficient balance in his account to honour the cheque towards discharge of his liability as a guarantor. But there is no such notice was issued.
19 CC 22054 of 2016
37. Under such circumstances, no one can expect that the cheque will be presented for such a huge amount of Rs.29,21,120/- to keep the balance in the account to honour the cheque. From the above finding it is clear that the Complainant failed to prove that the accused has issued the alleged cheque to discharge his liability as a guarantor to the alleged loan transaction.
38. Further it was suggested to PW1 that the alleged loan is standing in the name of Dakshayini T.S. with respect to one vehicle. PW1 has admitted the suggestion and the alleged one vehicle bearing No. KA-01-C-8867. PW1 has also admitted that, the said KA-01-C-8867 is in the name of accused and same was not hypothecated to Complainant.
39. Further the advocate for accused has confronted the 'B' register extract of vehicle bearing No. KA-01-C-8867 which was in the name of Manjuanth B S - the accused herein and the same was hypothecated to M/s. GE Capital TFS Ltd., hypothecation from date 01.03.2008 to 26.08.2015 20 CC 22054 of 2016
40. It is pertinent to note that, the alleged loan transaction is said to be on 08.10.2011, but at the time of alleged loan transaction, the said vehicle was already under hypothecated to another finance. PW1 has also admitted that before sanction of loan they have not verified the vehicle documents to get hypothecation. She has admitted that they have verified the valuation certificate of the vehicles. PW1 has also admitted that, they have not verified the vehicle documents before sanction of the loan.
41. Thus, from the admissions of the PW1, it is clear that they have not verified the vehicle documents before sanction of the loan which were the vehicles said to be hypoticated to the complainant.
42. Further on perusal of loan documents, Ex.P7 - application for availing vehicle / equipment loan, in the terms and conditions shows the condition No.5 that a member can stand surety for only one borrower apart from his borrowings. But the Complainant alleged that the accused has stood as a guarantor to ten loan transactions. Further the Complainant 21 CC 22054 of 2016 has produced hypothecation of tangible movable property form as per Ex.P15; but there was no movable properties are mentioned in the agreement; which are the vehicles hypothecated to the Complainant bank.
43. PW1 has also admitted in her cross-examination that, they have not obtained hypothecation of the vehicle. It is the bounden duty of the society while sanctioning any kind of loan to verify all the documents and to take security or guaranty for the loan transaction. So for the best known reasons of Complainant, though it was vehicle loan, but they have not obtained hypothecation of the vehicle and they have not verified all the documents of the vehicle.
44. Further the Complainant has produced Ex.P16 a letter said to be issued by Proprietor of NRS Travels - i.e. the accused herein. In the said letter it was mentioned as " we hereby wish to confirm that the loan availed by the Dakshayini T S on hire purchase of the vehicles of loan and we have ensure that we shall get debited from our NRS account every month as these vehicles have been attached to 22 CC 22054 of 2016 our company and also we ensure that we shall pay Rs.75,000/- every month for the loan" and it was also mentioned as "debit from our account and do the needful".
45. Even if it is the letter alleged to be given by the accused but in the present case on hand the Complainant has to establish that the accused being a guarantor has issued the alleged cheque to clear the entire loan on the alleged date under Ex.P2 - cheque.
46. On total reading of the evidence on record, it appears that the Complainant society has not followed any terms and conditions while sanctioning the loan. Apart from that in the loan application they have not mentioned particulars of the vehicles to be purchase ; the said portion of the application is blank. Likewise, they have not produced loan sanction order. Because the application indicates that it was for Rs.30 lakhs but no document is produced to show that when the application was placed before the sanction committee and what was the amount sanctioned by the committee.
23 CC 22054 of 2016
47. With all these irregularities the Complainant might have sanctioned the loan in favor of Dakshayini T.S., but to fix the criminal liability on the accused who being the guarantor, that too for the alleged offence punishable under Section 138 of NI Act, the Complainant failed to establish the issuance of alleged cheque by the accused by assuring to honour the alleged cheque for huge amount of Rs.29,21,120/- . As I already stated above, the blank cheque which was taken as security can be utilized for the liability towards the loan amount but which is subject to the outstanding loan due installments only.
48. In this regard I relied upon the decision reported in 2016 (10) SCC 458 in between Sampelly Sathaynarayana Rao vs. Indian Renewable Energy Development Agency Ltd., wherein the Hon'ble Apex Court held that, post dated cheque described as security towards repayment of installment of already disbursement loan amount, the proceeding u/s 138 of NI Act is maintainable in case of dishonour of such cheque. Further, observed that, once loan amount was disbursed and as per the agreement installments 24 CC 22054 of 2016 had fallen due on date of issuance of cheque, dishonour of such cheque would fall u/s 138 of NI Act and such issuance of cheque undoubtedly represents outstanding liability.
49. If it is accepted for a while that,the complainant has utilized the blank cheque, the complainant has to use the alleged cheque for outstanding liability of accused i.e. for recovery of due installments. But they have used the cheque for entire loan, without intimating the accused about presenting the cheque for entire loan. The complainant failed to produced any iota of documents to show that before recalling the entire loan, they have issued notice to accused and the accused was aware about the presentation of the cheque for recovery of entire loan. Under such circumstances, it is difficult to accept that the accused could have maintain sufficient balance in his account to honor the cheque.
50. Further if the cheque is taken by the complainant from the guarantor as security towards repayment of the loan amount, such cheque cannot be said to have been issued by the guarantor towards discharge of existing debt unless there 25 CC 22054 of 2016 is agreement between them to present the cheque for its encashment. In absence of such agreement, in order to enforce the liability of the accused to repay the entire loan amount, the complainant has to demand repayment of the loan from the borrower / guarantor by issuing him notice in writing or by making oral demand duly intimating the borrower that the loan amount towards repayment of loan of which the cheque was given by him to the complainant will be encashed by presenting it to the bank. If the borrower / guarantor does not repay the loan amount, despite such demand made by the complainant than the complainant is entitle to present such cheque for encashment.
51. In the present case as I already stated above, the evidence of complainant does not disclose that they have issued notice before presenting the cheque for encashment of entire loan. The accused would not have venture to issue the cheque, that too for huge amount of Rs.29,21,120/- without sufficient amount in his account, so as to welcome the criminal prosecution to attract penal provisions. There is no agreement between the accused and complainant to fill the 26 CC 22054 of 2016 blank cheque to file a criminal case for recovery of entire loan amount in lump-sum that too from the guarantor only.
52. Therefore on total reading of entire evidence, it appears that the defence put forward by the accused that cheque was not given for discharge of debt appears to be probable and convincing. The presumption under section 118 and 139 of NI Act stands rebutted. Under such circumstances the benefit of doubt should be given to the accused. Hence, I answer point No.1 and 2 in the Negative.
POINT No.3
53. In view of the findings on point No. 1 and 2 the accused needs to be acquitted for the alleged offence. Hence, I proceed to pass the following;
ORDER Acting u/s 255(1) of Cr.P.C., the accused is acquitted from the alleged offence punishable u/s 138 of N.I.Act.
27 CC 22054 of 2016
Accused is set at liberty and his bail
bond and surety bond shall stand
cancelled.
(Typed directly on computer to my dictation by the stenographer in the chamber , corrected and then pronounced by me in the open court on this the 26th day of March 2021) (ROOPA K.) XXVIth ACMM, Bangalore City.
ANNEXURE Witnesses examined for the Complainant:
PW.1 : Premakala Witness examined for the accused: DW.1 : Nil
List of Documents marked for the Complainant:
Ex. P1 Authorization.
Ex. P2 Original Cheque.
Ex. P2(a) Signature of the accused on the cheque.
Ex. P3 Endorsement.
Ex. P4 Notice.
Ex. P5 RPAD Receipt.
Ex. P6 RPAD Acknowledgment.
Ex. P7 Loan Application.
Ex. P8 On demand pro-note.
Ex. P9 Receipt.
Ex. P10 Complaint.
Ex. P11 Statement of account.
Ex. P12 & 13 Certified copy of the order sheet and petition in
dispute No.ADR/UBF/690/2015-16
28 CC 22054 of 2016
Ex. P14 Loan agreement
Ex. P15 Hypothecation agreement
Ex. P16 Letter written by NRS Travels
Ex. P17 & 18 Certified copy of Board resolution List of Documents marked for the accused:
Ex. D1 B-register Extract .
XXVI ACMM, Bangalore.