Bangalore District Court
M/S. Kretive Index Interior vs Mrs. D.R. Nalina on 27 January, 2017
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 27th DAY OF JANUARY, 2017
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO. 56719/2014
COMPLAINANT M/s. Kretive Index Interior
Designs Private Limited
Having its Office at No.61, Osborne Road,
Behind Lakside Hospital, Off Ulsoor, Bengaluru -
560 042
Rep. by its Director - Mr. Winkle Mathias
ACCUSED Mrs. D.R. Nalina
Proprietrix
M/s. Maven's
No.8, 80 feet road, 3rd Floor, Koramangala, 7th
Block, Above Wood Land, Show Room,
Bengaluru - 560 034
and also R/at No.262, 10th Cross, 1st Stage, 2nd
Phase, Manjunatha Nagar, Bengaluru - 560 010
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.56719/2014
JUDGMENT
The complainant has approached this court with complaint under Sec.200 Cr.P.C. against the accused for the offence punishable under Section 138 R/w. Sec. 142 of the Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant is that, the complainant is a private limited company carrying interior designs work since many years. The accused had entrusted the contract to carry out interior works to be done at M/s.Mavens's Koramangala Lunge Bar as per the work order dated 9.4.2014 on the complainant company. As per the work order, the complainant was expected to carry out work of worth Rs.1,41,94,209.05/-. In addition to that the complainant had agreed to carry out some additional works worth of Rs.11,35,150/- and the complainant had also offered discount of Rs.3,40,000/-. Though the complainant had carried out all the works entrusted to it as per the work order, the accused had paid only Rs.1,00,00,000/- to the complainant out of which a sum of Rs.61 lakhs was paid by means of cheque and fund transfer and Rs.39 lakhs by cash on different dates and still accused is liable to pay a sum of Rs.41,94,209.05 towards work order placed.
3 C.C. No.56719/20143. It is further case of the complainant that after repeated requests and reminders, the accused issued a cheque bearing No.601462 dated 11.7.2014 for Rs.20 lakhs drawn on Corporation Bank, M.G. Road branch, Bengaluru towards part payment of the balance amount payable to the complainant. After issuance of the said cheque, the accused requested the complainant not to present the same immediately and at the request of the accused the complainant presented the said cheque on 9.10.2014 through its banker - M/s.HDFC Bank, but the said cheque was returned with an endorsement "funds insufficient" vide endorsement dated 9.10.2014. Immediately the complainant tried to contact the accused on several occasions and thereafter the complainant got issued legal notice to the accused on 6.11.2014 calling upon the accused to pay the amount of cheque within 15 days from the receipt of the said notice and accused having received the said notice got issued reply notice dated 18.11.2014 taking false and baseless contention and thereby committed the offence punishable U/s.138 of N.I. Act. Hence the complainant is constrained to file the present complaint and accordingly prayed for punishment to the accused in accordance with law.
4. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn 4 C.C. No.56719/2014 statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons to the accused and accordingly Criminal Case was registered for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued to the accused.
5. In pursuance of the summons issued by this court, the accused has put up her appearance through her counsel and enlarged on bail. Thereafter plea was recorded. The accused denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the Director of the complainant company is examined as PW.1 and got marked as many as eight documents as per Ex.P1 to P8 and closed its evidence. After the closure of the complainant's side evidence, statement of the accused U/s.313 of Cr.PC was recorded. The accused has denied the evidence of the complainant and accused herself examined as DW.1 and got marked one document as per Ex.D1 and closed her evidence and thereby evidence of parties concluded.
7. Heard the arguments of the learned counsel for the respective parties.
5 C.C. No.56719/20148. On perusal of the entire material available on file and also on hearing the arguments, the points that would arise for consideration are:-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt as contended?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is entitled for the relief as prayed in the complaint?
4) What Order?
9. The above points are answered as under;
Point Nos.1 to 3 : Negative,
Point No.4 : As per the final order,
for the following.......
REASONS
10. Point Nos. 1 to 3: Since these points are inter linked and to avoid repetition they are taken together for discussion. At the very out set, it is to be noted that on going through the contention of the parties, oral and documentary evidence and on hearing the arguments, it is clear that there was a contract between the complainant 6 C.C. No.56719/2014 company and the accused in connection with interior designs work to be done at M/s.Mavens's Koramangala Lunge Bar as per the work order dated 9.4.2014. The said work order was Rs.1,41,94,209.05. It is not in dispute that Ex.P1- cheque belonged to the accused and same was issued by her for Rs.20 lakhs on 11.7.2014. It is also admitted fact that after dishonour of the cheque, the complainant got issued legal notice and same was served on the accused for which the accused got issued reply notice denying the claim of the complainant. It is also clear from the evidence of the accused that as on 11.7.2014 there was no Rs.20 lakhs in her account. It is noticed that the complainant is claiming due amount of Rs.41,94,209.05 from the accused as on the date of issuance of cheque and whereas the accused claims that there is no due of any amount in favour of the complainant as she had paid entire amount including the cheque amount. As already stated the accused has denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act, while recording her plea for the said offence and also denied the evidence of the complainant which is found against her at the time of recording statement U/s.313 of Cr.PC. At the time of recording 313 statement the accused has specifically stated that she is not liable to pay any amount to the complainant.
7 C.C. No.56719/201411. On going through the contents of the reply notice, cross-examination of PW.1 and evidence of the accused, it is clear that it is the specific defence of the accused that the complainant had not completed the work as per the work order and assured to complete the entire work on or before 11.7.2014 and demanded for Rs.20 lakhs and accordingly the accused issued post dated cheque for Rs.20 lakhs. But the complainant did not complete the work before 11.7.2014 and therefore the accused is intended to give stop payment instruction to her banker. Further in respect of the cheque in question she had paid Rs.10 lakhs through cheque in favour of the complainant on 12.7.2014 and another Rs.10 lakhs on 22.7.2014 through RTGS and in spite of receipt of the said cheque amount, the complainant had not returned the post dated cheque and got issued false notice and filed false complaint even though there was no any due.
12. With the above background, if we analyze the material on record, in order to prove the case of the complainant, the Director of the complainant company by name Winkle Mathias is examined as PW.1 reiterating the complainant averments in his examination-in-chief by way of affidavit and produced cheque dated 11.7.2014, bank endorsement dated 9.10.2014, copy of the legal notice dated 6.11.2014, postal receipt and courier receipt dated 6.11.2014 for having sent the notice, postal 8 C.C. No.56719/2014 acknowledgement dated 10.11.2014, reply notice dated 18.11.2014 and work order dated 9.4.2014 as per Ex.P1 to P8 respectively. The complainant has also got marked the signature of the accused found in Ex.P1-cheque as per Ex.P1(a) and in that regard there is no dispute.
13. Relying on oral and documentary evidence and admitted facts, the learned counsel for the complainant has vehemently argued in terms of the contents of the complaint and also brought to the notice of this court as to presumptions available in favour of the complainant as provided U/ss.118 and 139 of N.I. Act. It is meticulously argued by the learned counsel for the complainant that the contents of the reply notice is very vague and the accused has not produced any documents to show the entire payment made and the defence of the accused is not proved. It is also brought to the notice of this court as to non-issuance of stop payment or demanding back the original cheque from the complainant if at all the contention of the accused was true and accordingly prayed for conviction of the accused and for grant of compensation in favour of the complainant. Per contra, the learned counsel for the accused taking assistance of reply notice, oral and other documentary evidence placed before this court meticulously argued as to the defense taken by the accused. The learned counsel for the accused vehemently argued 9 C.C. No.56719/2014 contending that very complaint U/s.138 of N.I. Act itself is not maintainable as there was no due in favour of the complainant as on the date of filing of this complaint, as the accused had paid the cheque amount of Rs.20 lakhs as found in Ex.D1 and only issue to be determined is as to existence or non-existence of due in respect of cheque in question and there is no dispute as to any other aspect. In this regard the learned counsel has also taken notice of this court as to the evidence of PW.1 during his cross- examination and also the suggestion put to the mouth of DW.1 during her cross-examination. It is also argued that though the entire amount was paid, due to some differences the complainant without returning post dated cheque issued by the accused, by taking undue advantage of the same filed the present complaint and accordingly prayed for acquittal of the accused in the interest of justice and equity.
14. It is needless to say that the proceeding U/s.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The 10 C.C. No.56719/2014 presumption envisaged U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In the case of Sri. B.H. Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date as found therein.
15. In the light of the rival contention of the parties at the out set it is to be determined whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. In fact on going through the oral and documentary evidence, it is clear that there is no such 11 C.C. No.56719/2014 dispute between the parties as to compliance of requirements of Sec.138 of N.I. Act. Admittedly Ex.P1- cheque dated 11.7.2014 issued for Rs.20 lakhs belonged to the accused. Along with Ex.P1-cheque, the contents of Ex.P2 i.e bank endorsement are looked into, it is clear that the complainant presented Ex.P1-cheque for encashment on 9.10.2014 and the same was dishonoured for the reason "funds insufficient" by the drawee bank. The contents of Ex.P3 to P7 are looked into, it is clear that after dishonour of the cheque, the complainant got issued legal notice on 6.11.2014 i.e within 30 days from the dishonour of the cheque as required under law and sent the notice through registered post as well as courier and the same were served on the accused on 10.11.2014. The accused got issued reply notice dated 18.11.2014 denying the claim of the complainant. The complainant presented this complaint on 12.12.2014 i.e after lapse of 15 days from the date of service of notice on the accused and within 30 days thereafter. Thus from the contents of these documents their remains no doubt that the complainant had complied with all the requirements/ingredients of Sec.138 of N.I. Act. As already stated there is no dispute as to the compliance of these technical requirements by the complainant.
16. In addition to the above aspects, as already stated the representative of the complainant in his evidence by way 12 C.C. No.56719/2014 of affidavit specifically stated as to compliance of requirements of Sec.138 of N.I. Act. Therefore their remains no doubt that the complainant had complied with all the requirements of Sec.138 of N.I. Act. This being the fact, as discussed earlier, in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available U/s.139 of N.I. Act is required to be drawn and shall presume that the accused had issued the cheque as per Ex.P1 towards discharge of legally recoverable debt. It is also to be noted that as provided U/s.118 of N.I. Act, it is to be presumed that cheque had been issued for consideration on the date as mentioned therein.
17. It is needless to say that, though the statutory presumptions available U/ss.118 and 139 of N.I. Act are mandatory in nature, they are rebuttable one. When the complainant proves the requirements of Sec.138 of N.I. Act, the onus of proof shifts and lies on the shoulder of the accused to rebut the presumption available in favour of the complainant. It is the accused who has to rebut the presumption with all preponderance of probability with clear, cogent and convincing evidence. Now the question that would arise is whether the accused has rebutted the presumption available in favour of the complainant.
13 C.C. No.56719/201418. In the light of the above aspects and specific defense taken, now the evidence placed before this court on behalf of the accused is looked into, the accused being DW.1 in her evidence deposed as to defense taken by her denying the claim of the complainant. In addition to her oral evidence, the accused has produced bank statement as per Ex.D1 in support of her contention. On going through the evidence placed before this court, it is clear that there is no dispute as to the contents of Ex.D1. Even the complainant clearly admitted the payment made in favour of the complainant by the accused as found in Ex.D1. It is clear from the evidence of the parties that the accused had entrusted the contract relating to interior work to be done at M/s.Mavens's Koramangala Lunge Bar as per the work order dated 9.4.2014. The said work order is produced as per Ex.P8 and in respect of which there is no dispute. It is also clear from the evidence that except the work order as per Ex.P8, there is no any other contract between the complainant and accused.
19. As already stated it is the specific contention of the accused that she had paid entire cheque amount and there was no any due in favour of the complainant as she had paid entire amount to the complainant. It is admitted fact that the payment was made both in cash as well as through instrument (cheque and RTGS) as and when work 14 C.C. No.56719/2014 was completed. In this case as argued by the learned counsel for the complainant, the accused has not produced any receipts for having paid the entire due amount as claimed by her. However on going through the complaint averments itself, it is clear that as on the date of issuance of cheque i.e as on 11.7.2014 the accused had paid in all one crore rupees towards work entrusted to the complainant company and towards part payment of balance amount of Rs.41,94,209.05, the accused had issued Ex.P1-cheque for Rs.20 lakhs. As per the complaint averments, it is not the case of the complainant that as on the date of issuance of cheque more than Rs.41,94,209.05 was due from the accused. With these aspects, now in the light of the contention of the accused, the contents of Ex.D1 are looked into, it is clear that admittedly the accused had paid a sum of Rs.10 lakhs on 12.7.2014 through cheque, Rs.10 lakhs on 22.7.2014, Rs.17 lakhs on 31.7.2014, Rs.8 lakhs on 4.8.2014 and Rs.6,00,056/- on 7.8.2014 and in all Rs.51,00,056/- in favour of the complainant. In the light of the complaint averments, the contents of Ex.D1 are analyzed it is clear that as on 7.8.2014 itself there was no due from the accused in favour of the complainant. In fact it appears that the accused had paid more than what was due as put up by the complainant himself. Admittedly Ex.P1- cheque dated 11.7.2014 which was issued towards part 15 C.C. No.56719/2014 payment of balance due of Rs.41,94,209.05 and admittedly after 11.7.2014 till 7.8.2014 the accused had made payment more than Rs.51 lakhs. This being the fact this court found much merit in the argument of the learned counsel for the accused that as on the date of presenting the cheque and as on the date of filing of this complaint there was no due from the accused in favour of the complainant.
20. In addition to the above aspects, it is also noticed from the evidence placed before this court that during the course of cross-examination, the complainant specifically stated that DgÉÆæ ZÉPÀÌ£ÀÄß PÉÆqÀĪÀÅ¢®è JAzÀÄ ºÉýzÁUÀ £Á£ÀÄ GzÉÆÃåVUÀ½UÉ ºÀt ¥ÁªÀw¸À¨ÉÃPÁVzÉ JAzÀÄ ºÉý AiÀiÁªÀ PÉ®¸À DVzÉ CµÀÄÖ ªÉÆvÀÛzÀ ZÉPÀÌ£ÀÄß PÉÆr JAzÀÄ DgÉÆæAiÀÄ£ÀÄß PÉýzÉ JAzÀgÉ ¸Àj. DgÉÆæ ºÀvÀÄÛ ®PÀë gÀÆ¥Á¬ÄUÉ ¢B12-7-2014 JAzÀÄ £ÀªÀÄÆ¢¹zÀ ZÉPÀÌ£ÀÄß £À£U À É ¤ÃrzÀgÀÄ JAzÀgÉ ¸Àj. ¢B22-7-2014 PÉÌ PÉ®¸À ¥ÀÇgÉå¹zÀ £ÀAvÀgÀ G½zÀ ºÀvÀÄÛ ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß DgÉÆæAiÀÄ SÁvɬÄAzÀ £ÀªÀÄä SÁvÉUÉ DgïnfJ¸ï ªÀÄÆ®PÀ ¥ÁªÀw¹zÁÝgÉ J£ÀÄߪÀÅzÀÄ ¸Àj. DgÉÆæ E¥Àvà ÀÄÛ ®PÀë gÀÆ¥Á¬ÄAiÀÄ£ÀÄß JgÀqÀÄ ºÀAvÀU¼ À ° À è ¥ÁªÀw¹zÁÝgÉ J£ÀÄߪÀÅzÀÄ ¸Àj. This version of the complainant reveals that towards Rs.20 lakhs the accused had made payment on 12.7.2014 and on 22.7.2014. As already stated this is found in Ex.D1 and in that regard there is no dispute. As argued by the learned counsel for the accused, the suggestion put to the mouth of 16 C.C. No.56719/2014 DW.1 during the course of cross-examination is analyzed, the very suggestion put to the mouth of DW.1 clearly support the version of the accused. The learned counsel for the complainant during the course of cross-examination of DW.1 suggested that ¢£ÁAPÀ 11-7-2014 gÀAzÀÄ ¤r-1 gÀ £À£Àß SÁvÉAiÀÄ°è E¥ÀàvÀÄÛ ®PÀë gÀÆ¥Á¬Ä EgÀ°®è JAzÀgÉ ¸Àj. £À£Àß SÁvÉAiÀÄ°è ¢£ÁAPÀ 11-7-2014 gÀAzÀÄ E¥Àvà ÀÄÛ ®PÀë gÀÆ¥Á¬Ä E®è¢zÀÄÝzÀjAzÀ ¦ügÁå¢zÁgÀjUÉ ¢£ÁAPÀ 12-7-2014 gÀ ºÀvÀÄÛ ®PÀë gÀÆ¥Á¬ÄAiÀÄ ZÉPÀÌ£ÀÄß PÉÆnÖzÉÝ JAzÀgÉ ¸Àj. This suggestion makes it very clear that the cheque issued on 12.7.2014 for Rs.10 lakhs was towards part payment of Rs.20 lakhs stated in Ex.P1-cheque. Admittedly the said amount was received by the complainant on 12.7.2014 and also Rs.10 lakhs on 22.7.2014. This being the fact it is very difficult to accept the contention of the complainant that there was any due in favour of the complainant from the accused as on the date of presentation of the cheque for encashment.
21. As already discussed admittedly cheque was issued on 11.7.2014 and the amount was being paid by the accused as and when work was completed. But though cheque was dated 11.7.2014 the complainant had presented the same for encashment only on 9.10.2014 i.e nearly after three months from the date of issuance of cheque. This aspect probabalize the contention of the accused that the 17 C.C. No.56719/2014 complainant having received the cheque in advance, received the payment thereafter and did not return the cheque in question and utilized the same for filing the present complaint against the accused. No doubt as argued by the learned counsel for the complainant in this case the cheque was admittedly dishonoured for the reason "funds insufficient" and not for the reason payment stopped by the accused. It is also true that the accused has not produced any documents to show that she has demanded back the cheque issued in favour of the complainant as per Ex.P1 and not produced any receipt for having paid the balance amount and any documents for issuance of stop payment to her banker. But on the basis of these aspect, the defense of the accused cannot be over ruled or disbelieved. As already stated admittedly as on the date of issuance of Ex.P1- cheque, the due amount was only Rs.41,94,209.05 out of Rs.1,41,94,209.05 and since this fact is admitted there is no need of any proof as to payment of the said amount of Rs.1 crore in favour of the complainant. So far as the remaining amount is concerned, Ex.D1 clearly disclose subsequent to payment made. Therefore just because the accused has not demanded back the cheque and just because not issued stop payment intimation to her banker being a prudent person that cannot be a ground for suspecting the defense of the accused.
18 C.C. No.56719/201422. Therefore considering all these aspects, this court found much substance in the defense taken by the accused. On meticulous consideration of entire oral and documentary evidence, it is clear that as on the date of presentation of Ex.P1-cheque by the complainant, there was no due from the accused and accused had paid the cheque amount as put up by her. It also appears that the due claimed by the complainant in his complaint is also not tenable and acceptable one. Therefore it is crystal clear that the accused has specifically rebutted the presumption available in favour of the complainant as to due of any legally recoverable debt in favour of the complainant. Therefore though the complainant had complied with all the requirements of Sec.138 of N.I. Act, it cannot be held that the complainant has proved existence of legally recoverable debt as on the date of presentation of cheque as contended. It appears that the cheque issued in advance is being utilized by the complainant for filing the present complaint though actual payment was made. The evidence placed before this court clearly probabalize the defense taken by the accused and same is more cogent and convincing as against the claim of the complainant. Therefore it cannot be held that the complainant has proved the existence of legally recoverable debt in his favour from the accused and it cannot be held that the accused had committed the offence punishable 19 C.C. No.56719/2014 U/s.138 of N.I. Act as put up by the complainant. Since the complainant has failed to prove the existence of legally recoverable debt in respect of cheque in question as put up by him and since the complainant has failed to prove the commission of the offence by the accused U/s.138 of N.I. Act as put up by him, it goes without saying that the complainant is not entitled for any relief as sought for in this case. Therefore Point Nos.1 to 3 are required to be answered in negative and answered accordingly.
23. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following....
ORDER Acting under Section 255(1) of Cr.PC accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bond of the accused and her surety stands cancelled.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 27th Day of January, 2017) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 20 C.C. No.56719/2014 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. Winkle Mathias
Witnesses examined for the defence:
DW.1 : Smt. Nalina D.R
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P1(a) : Signature of the accused
Ex.P2 : Bank endorsement
Ex.P3 : Legal Notice
Ex.P4 : Postal receipt
Ex.P5 : Courier receipt
Ex.P6 : Postal acknowledgement
Ex.P7 : Reply notice
Ex.P8 : Work order
Documents marked for the defence:
Ex.D1 : Account Statement
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU