Bangalore District Court
M/S Shirdi Sai Cement And vs Sri.N.Manju on 4 December, 2019
THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY.
Dated this the 4th day of December, 2019.
PRESENT: SRI MADHVESH DABER, B.COM.,L.L.B(SPL).,
XIX ADDL.C.M.M., BENGALURU.
Case No: C.C.No.21144/2018
Complainant: M/S SHIRDI SAI CEMENT AND
BUILDING MATERIALS,
Rept., by its Proprietor
Smt.PARVATHA
Aged about 53 years,
R/at No.83, 5th 'B' Main Road,
Opp. P.K.Kalyana Mantappa,
Classic Paradise Layout, Begur,
Bengaluru-560068.
(By Smt.L.Manjula., Advocate)
V/s
Accused: Sri.N.MANJU
Aged about 48 years,
R/at Site No.74-75,
Property No.982/74,
Khatha No.1888-1889,
Survey No.66,
Doctors Enclave Layout,
Chnadapura Attibele Hobli,
Anekal Taluk, Bengalore.
Offence complained of: U/s.138 of N.I.Act.
Plea of accused: Pleaded not guilty.
Opinion of the Judge Accused found not guilty. .
Date of order: 4th December, 2019.
2 CC No.21144/2018
JUDGEMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s.138 of N.I.Act.
2. The brief facts of the complaint are that; The Complainant contends that, the complainant is running a business in the name of M/s Shirdi Sai Cement and Building Materials. She is the proprietor of the said business. The accused being in requirement of Cement for his business purpose approached the complainant and purchased cement for an amount of Rs.3,30,000/-(Rupees Three Lakh and Thirty Thousand Only). Towards payment of the amount of cement the accused issued cheque No.090110 dated 25.12.2016 for an amount of Rs.3,30,000/-(Rupees Three Lakh and Thirty Thousand Only) drawn HDFC Bank, Chnadrapura Road, Anekal Branch, Anekal-562106 in favour of the complainant. But on presentation the said cheque came to be dishonored for the reason "ACCOUNT CLOSED". Thereafter, the complainant got issued a Legal Notice on 01.04.2017 through RPAD which was duly served upon the accused. But the accused instead of 3 CC No.21144/2018 complying the Demand notice, issued an untenable Reply Notice on 11.04.2017. Thereby, the accused has not complied the legal notice. Hence, accused has committed offence under Section 138 of Negotiable Instruments Act. Hence this complaint.
3. Soon after filing of the complaint, cognizance of the offence was taken. Matter was registered as P.C. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case. Summons was issued as against the accused. The Accused appeared through his Counsel and he was enlarged on bail. Substance of accusation was read over to the Accused. The Accused pleaded not guilty and claimed to be tried.
4. The complainant has been examined as PW-1 and documents Ex.P.1 to Ex.P.6 were got exhibited and closed her side.
5. After closure of the complainant side evidence, accused Statement u/Sec.313 of Cr.P.C. was recorded. The accused denied the incriminating evidence in toto. The 4 CC No.21144/2018 accused has been examined as DW-1 and documents Ex.D1 and Ex.D2 were got marked.
6. Heard Arguments by the learned counsel for accused. The complainant has not argued the matter even though sufficient opportunity was given. Hence arguments by complainant were taken as nil.
7. Now, the points that arise for my consideration are as under:
i) Whether the Complainant proves that the accused in discharge of legally enforceable debt, issued Cheque for Rs.3,30,000/-(Rupees Three Lakh Thirty Thousand Only) which on presentation came to be dishonoured and he has failed to honour the notice and not paid the amount and thereby, committed offence u/Sec.138 of N.I. Act ?
ii) What order ?
8. My findings to the above points for consideration are as under:
Point No.1: In the Negative. Point No.2: As per final order for the following:5 CC No.21144/2018
:: R E A S O N S ::
9. Point No.1:- In order to prove her case, the Complainant viz., Smt.PARVATHA entered into the witness- box and filed an affidavit in lieu of examination-in-chief and reiterated the complaint averments and got examined herself as PW-1 and documents Ex.P.1 to Ex.P.6 were got exhibited and closed her side. The accused has been examined as DW-1 and documents Ex.D1 and Ex.D2 were got exhibited. The complainant has not argued the matter even though sufficient opportunity was given. Hence arguments by complainant were taken as nil.
10. During arguments the learned Counsel for Complainant has not argued the matter even though sufficient opportunity was given. On the there hand the learned counsel for accused argued that there are so many infirmities in the evidence of the complainant which render her version doubtful. It is contended that the cheque which was issued as a security for the earlier transaction has been misused. The evidence given by accused is unchallenged. So the complainant has failed to prove the case to the satisfaction of the court. No 6 CC No.21144/2018 document is produced regarding the transaction taken place in between complainant and accused. Hence, the learned counsel for accused argued that the complainant has failed to prove her case to the satisfaction of the court. Whereas the accused has rebutted presumption under Section 138 of Negotiable Instruments Act. Hence, the learned counsel for accused prayed to acquit the accused.
11. It is trite principles of law that the presumption u/Sec.139 of N.I. Act is initially in favour of the Complainant that the cheque was issued for discharge of a legally recoverable debt or liability. However, the said presumption is rebuttable presumption. The Accused has to rebut the said presumption by taking a probable defence. The presumption can be rebutted even by eliciting facts from the cross-examination of PW1 or by leading defence evidence. For that Accused need not enter into the witness-box. Even the question of legally recoverable debt or liability can also be contested. Whether the presumption is rebutted or not? depends on facts and circumstances of each case. This principle is laid down by Hon'ble Supreme Court in AIR 2010 SC 1898 Rangappa v/s. V. Mohan. In the light of above principles of law now I have to see whether the 7 CC No.21144/2018 presumption is rebutted or not? and Complainant has proved his case or not?
12. The brief facts of the case of the complainant are that, the complainant is running a cement business and accused purchased cement worth Rs.3,30,000/- and towards the payment of the said amount accused issued the cheque for Rs.3,30,000/- which on presentation came to be dishonoured for the reason "Account Closed". Hence, after complying all the legal formalities the complainant has filed this complaint against the accused.
13. However the case of the accused is that, though he has admitted the transaction between complainant and accused, but the complainant was not issuing the bills stating that if the bill was issued same would be taxed. It is the case of the accused that even though the accused had purchased cement from the complainant for 8 to 9 times, but the complainant has not issued the bills. The accused had paid the amount several times in cash. But the complainant had not issued the bills. On the other hand she had obtained a blank cheque stating that it was required as a proof for supply of cement. So the accused has issued a blank signed cheque. The 8 CC No.21144/2018 accused was not due to the complainant any amount, with regard to purchase of the cement. But when he asked complainant to return the cheque, she told that it was kept somewhere and she would give it whenever it was traced out. Some time after the transaction of the present case was over the complainant evaded giving the cheque stating that there was some tax problem. Thereby the complainant has misused the cheque. So the accused was not due to complainant any amount. So he has suitably replied the notice. So the complainant has filed a false complaint against the accused. In this regard he has produced the office copy of legal notice at Ex.D1 and Postal receipt at Ex.D2.
14. It is pertinent to note that whatever the evidence given by the accused is not challenged by the complainant. There is no cross examination of accused by the complainant. Though the accused has led his evidence but complainant has failed to cross examine the accused. So the evidence given by accused remained unchallenged. Under such circumstances, I am of the opinion that when the evidence of accused is remained unchallenged, the accused has rebutted the presumption under Section 139 of Negotiable Instruments Act. 9 CC No.21144/2018
15. Added to this, if cross examination of complainant is perused it appears that, the complainant has not produced any document to show that she had supplied the cement worth Rs.3,30,000/-. She has not produced invoices with regard to supply of the cement to the accused. It is true that the transaction between complainant and accused is admitted. However the accused contended that the accused was not due to the complainant a sum of Rs.3,30,000/-. With regard to supply of cement worth Rs.3,30,000/- the complainant has not produced any documents. Moreover the complainant has not produced any document to show that she had supplied cement to the accused 4 to 5 times. That apart she has admitted that the accused has repaid the money on one occasion i.e., after supply of the cement for the first time. Under such circumstances in the light of non cross examination of accused, it appears that the presumption under Section 139 of Negotiable Instruments Act is rebutted. Moreover the contents of the cheque and signature are apparently in different ink and handwriting. So it probablises the case of the accused that the cheque issued for a security purpose may have been misused 10 CC No.21144/2018 by the complainant and her husband.
16. During the cross examination the complainant has admitted that the accused paid the amount on different occasions. She has clearly stated that she had made note supply of cement in a dairy, but she has failed to produce the dairy before the court. She has admitted that with regard to supply of the cement to the accused she has neither issued cheque nor any written chit. So it probabalises the case of the accused. Moreover there was no obstacle/impediment for the complainant to get the contents of the cheque written by accused. On the other hand she has stated that the accused issued the cheque stating that he would get back the cheque after making payment of the cement, which probabalised the case of the accused that the cheque may have been issued as a security for the transaction. So in the light of non production of documents regarding supply of the cement, non production of invoices and bills, I am of the opinion that the contention of the complainant cannot be believed. That apart the evidence given by accused has not been contradicted by cross examination of the accused.
11 CC No.21144/2018
17. So looking to all these circumstances, I am of the opinion that , the complainant has failed to prove her case to the satisfaction of the court. Hence, the accused is entitled for acquittal. Accordingly, I answer point No.1 in the Negative.
18. Point No.2:- In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec.255 (1) of Cr.P.C., the accused is hereby acquitted of the offence punishable u/Sec.138 of N.I. Act.
The bail bond and surety bonds of the accused stand cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by him is verified and then pronounced by me in the Open Court on this the 04th day of December, 2019) (MADHVESH DABER) XIX ADDL.C.M.M., Bengaluru.12 CC No.21144/2018
ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Smt.PARVATHA.
Witnesses examined on behalf of the Accused:
DW.1 Sri.N.MANJU.
Documents marked on behalf of the Complainant:
Ex.P.1 Cheque. Ex.P.1(a) Signature of the Accused. Ex.P.2 Bank Endorsement. Ex.P.3 Legal Notice. Ex.P.3(a) Postal receipt. Ex.P.4 Reply Notice. Ex.P.5 RPAD cover. Ex.P.6 Track Sheet of Postal Department.
Documents marked on behalf of the Accused:-
Ex.D.1 Reply Notice.
Ex.D.2 Postal Receipt.
(MADHVESH DABER)
XIX ADDL.C.M.M., Bengaluru.
13 CC No.21144/2018
04.12.2019
Judgment
(Judgment pronounced in the open court vide separate order) ORDER Acting u/Sec.255 (1) of Cr.P.C., the accused is hereby acquitted of the offence punishable u/Sec.138 of N.I. Act.
The bail bond and surety bonds of the accused stand cancelled.
(MADHVESH DABER) XIX ADDL.C.M.M., Bengaluru.14 CC No.21144/2018
Corrected