Bangalore District Court
Proprietor vs Has Committed An Offence on 2 January, 2016
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE.
Present: Smt.C.G Vishalakshi, B.A., L.L.B.,
XIII A.C.M.M Bangalore.
C.C. NO.9219/2011
Dated: This the 2nd day of January 2015
Name of the Sri.Rashmikant Mehta,
complainant Proprietor,
M/s.Samkit Impex,
No.12, 22nd Cross,
Doddanna Industrial Estate,
Near Peenya 2nd stage,
Bangalore-560 058.
Name of the accused Sri.B.N.Sharma,
Prop: M/s.Sree Iyyappa Cores,
No.107/IB, 2nd Cross,
2nd Block, Peenya,
Bangalore-560 058.
Offence U/s.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Acquitted
****************
JUDGEMENT
This complaint is filed against the accused U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I Act.
.
2. The gist of the complaint is as follows; 2 C.C.No.9219/2011 The complainant is carrying his business under the name of style M/s.Samptek Impex, at Bangalore in the address as shown in the cause-title and accused is his customer and he is the proprietor of M/s.Sree Iyyappa Cores. The accused used to purchase the materials from the complainant on credit basis. Accordingly, the accused had issued cheques bg.No.723239 dt.19.05.2010 for Rs.57,909/-, cheque bg.No.723240 dt.19.05.2010 dt.57,909/- & cheque bg.No.723241 dt.19.05.2010 Rs.57,910/- drawn on Shamrao Vithal Co-operative Bank Ltd., Peenya Branch, Bangalore towards discharge of the debt in part which was due infavour of the complainant concern. On presentation of those cheques through the complainant Banker Karur Vysya Bank, Rajajinagar Branch, Bangalore, those cheques were returned dishonored with endorsement "Payment stopped by the drawer" as per the endorsement dt.12.10.2010. Despite of service of demand notice issued by the complainant against the accused on account of dishonour of cheque, as there was no response from the accused, the complainant has filed this complaint, on the allegations 3 C.C.No.9219/2011 of commission of the offence punishable U/s.138 of N.I Act and prays to deal the accused in accordance with law.
3. On presentation of the complaint, this court has taken cognizance of the offence, Sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. Copies of the complaint papers supplied to him. Substance of accusation was readover and explained to the accused. Accused did not pleaded guilty and claims to be tried. Hence, the matter was posted for evidence of the complainant.
4. In order to prove the case of the complainant, he got examined himself as PW.1 & got marked documents as Ex.P.1 to P.13 and closed his side evidence. After completion of the complainant evidence, the accused was examined under U/s.313 of Cr.P.C. and his statement was recorded. The accused denied all the incriminating 4 C.C.No.9219/2011 evidence appeared against her and chosen to lead his defence evidence. To substantiate his defence and to falsify the claim of the complainant, the accused has examined himself as DW1 got marked document Ex.D.1. & D.2.
5. Heard arguments.
6. Upon reading the entire materials on record and on hearing the arguments the following points that arise for my consideration:
(i) Whether the complainant proves
beyond all shadow of doubt that, the
accused has committed an offence
punishable U/s.138 N.I Act ?
What order?
7. My answer to the above points are as follows:-
Point No.1: In the Negative Point No.2: As per the final order, for the following.
REASONS
8. Point No.i : As the accused did not pleaded guilty the complainant has chosen to examine 5 C.C.No.9219/2011 himself as PW1 and got marked documents as Ex.P.1 to P.12.
9. As per the decision reported in ILR 2008 Kar. Pg. 4629 between Shivamurthy Vs.Amruthraj, and in another decision rendered by the Hon'ble Apex court in AIR 2008 SC 1325 between Krishna Janardharn Bhat Vs. Dattareya G. Hegde, in order to attract Sec.138 of N.I Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
10. Keeping in view the ingredients of Sec.138 of N.I Act I proceed to discuss the documents of this case.
(a) Ex.P.1 to P.3 are cheques i.e, bg.No.723239 dt.19.05.2010 for Rs.57,909/-, cheque bg.No.723241 dt.19.05.2010 for Rs.57910/- & cheque bg.No.723240 6 C.C.No.9219/2011 dt.19.05.2010 for Rs.57,909/- all the 3 drawn on The Shamrao Vithal Co-op. Bank Ltd., Peenya Industrial Estate Branch, Bangalore. According to complainant Ex.P.1(a) to P.3(a) are the signatures of the accused. On perusal of the original complaint, which is marked as Ex.P.13, it is clear that it buttress the stand taken by the complainant herein.
(b) Ex.P.4 to P.6 are the cheques return memos, which shows that the above said cheques was returned unpaid dt.12.10.2010 because of the reason that, 'Payment Stopped by the Drawer.' (c )It must be noted as per Clause (b) proviso to Sec.138 of N.I Act, the complainant was required to make a demand for payment of the said amount within 30 days from the date of receipt of cheque as un-paid.
(d) Ex.P.7 is copy of the legal notice dt.10.11.2010, which shows that the complainant made demand in writing calling upon the accused to make repayment of 7 C.C.No.9219/2011 the said cheque amount by issuing notice against him which is within 30 days.
(e) Ex.P.8 is the postal receipt & Ex.P.9 & 10 are the UCP Receipts, reflects that the legal notice was served on accused on 13.11.2010. As per Clause ( C) proviso to Sec.138 of N.I Act, the accused is entitle 15 days time to make payment of money covered under cheque. Further, as per Sec.142 (b) of N.I Act, complaint has to be filed within 30 days from the date of which the cause of action aroses. Therefore, the complainant had filed this complaint well within time on 24.12.2010.
Thus, the complainant has fulfilled all the ingredients which were required for the completion of the offence punishable U/s.138 of N.I Act.
11. Keeping these documents in view, let us proceed to discuss that, whether the cheque in question belongs to the accused and whether the signature found on disputed cheque is that of the accused. 8 C.C.No.9219/2011
12. On looking the materials on record which shows that, there is no dispute so as to the fact that Ex.P.1 to P.3 cheques are belongs to the accused Bank account and signatures Ex.P.1(a) to P.3(a) are belongs to the accused, as it the specific defence of the accused that, he had requested the complainant for supply of materials during the year 2007. On that time, the accused had issued 5 cheques worst of Rs.57,909/- each with their cheque bg.No.723237 to 723241. Out of 5 cheques, the complainant had presented cheuqe bg.No.723237 on 22.11.2007 and it was got encashed. Further, honouring the said cheque bg.No.723237 worht of Rs.57,909/- the complainant did not supplied the materials in favour of the accused. Hence, the accused had demanded the complainant for return of the 4 cheques but inspite of the same the complainant did not returned those cheques. Hence, the accused had given stop payment instructions to the Bank authorities requesting them not to honour the above said 4 cheques. Inspite of the same, the complainant by making use of those cheques, which was given in favour of the 9 C.C.No.9219/2011 complainant by the accused during the year 2007, has filed this false complaint against him. Thus, there is no dispute so as to the fact that Ex.P.1 to P.3 cheques are belongs to the bank account of the accused and Ex.P.1
(a) to Ex.P.3(a) are the signatures of the accused.
13. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR 1981 Pg. 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of N.I Act (Cheque in question) is admitted as well as proved.
14. In view of the decision reported in 2010 SC 1898 between Rangappa Vs. Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption U/s.139 of N.I Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e, the disputed cheque has been drawn for valid consideration 10 C.C.No.9219/2011 and it is towards legally recoverable debt and it is drawn for valuable consideration.
15. It is the specific case of the complainant that he is reputed customer of the complainant and was purchasing the materials from the complainant on credit basis. Towards the repayment of he debt in part the accused had issued 3 cheques i.e., bg.No.723239 to 723240 & 732341 dt.19.05.2010 for worth of Rs.57,909/- each and all the cheques were drawn on Sham Rao Vithal Co-operative Bank, Peenya Industrial Estate Branch, Bangalore. Those cheques on their presentation through the complainant Banker Karur Vysya Bank, Rajajiangar Branch, Bangalore bounced back unpaid for the reason "payment stopped by the drawer" with endorsement dt.12.10.2010. Despite service of notice by the complainant against the accused, on account of dishonour of the cheques as there was no response from the accused, the complainant has maintained this complaint.
11 C.C.No.9219/2011
16. The accused though not disputed the business transaction with the complainant and about purchasing of the materials from the complainant etc., but according to the complainant the accused was paying the amount through cheques and accordingly, the accused had issued cheques i.e., disputed cheques during the year 2010 for the materials supplied to him during the year 2007. But it is denied by the accused with specific defence that, the had requested the complainant for supply of materials during the year 2007 and on that time, the accused had issued 5 cheques worth of Rs.59,909/- etc., with cheque bg.No.723239 to 723241 for supply of materials. Out of those cheques the complainant has presented cheque bg.No.723239 worth of Rs.57,909/- and it was honured. There after, the complainant did not supplie the materials in favour of the accused. Hence he had demanded for return of those 4 cheques. Inspite of the same, the accused did not returned those cheques. On the other hand, by misusing those cheques has filed this false complaint against him. 12 C.C.No.9219/2011
17. Thus, the accused has denied the very claim of the complainant that Ex.P.1 to P.3 were issued by the accused during the year 2010 in relation to the materials allegedly supplied to him during the year 2007 as false. Thereby, he denied the say of the complainant about issuance of disputed cheques towards the discharge of any liability.
18. To substantiate the defence the accused mainly relied on the cross-examination of PW1. During the cross-examination, though PW1 denied about suggestions of the accused that alleged disputed cheques were issued in favour of the complainant during the year 2007 and about the mis use of those cheques as false.
19. But to substantiate the fact that the alleged cheques were given by the accused during the year 2010 for the material supplied in favour of the accused during the year 2007, no material evidence has been placed before this court. That means to say that, he has not placed any documents before this court. Though at one stretch the complainant made an attempt to say that the 13 C.C.No.9219/2011 cheque bg.No.723237 for Rs.57,909/- was in respect to Ex.P.12 bill etc., But Ex.P.12 bill is not tallying with the alleged cheque bg.No.723237 as the said cheque was for Rs.57,909/- and the bill i.e., Ex.P.12 bill is to the tune of Rs.2,89,546/-. Thus, the Ex.P.12 bill is not corresponding to the alleged cheque bg.No.723237 as stated by the complainant.
20. Further, though at one stretch, the complainant made an attempt to say that he had supplied the materiasl in favourof the accsued by referring Ex.P.12 etc., but for having supplied the materials under Ex.P.12 bill infavour of the accused, no seal or signature is found on the said Ex.P.12 for having receipt of the said materials. Further, the accused clearly deposed in his evidence that, no mateirals was supplied in his favour as per Ex.P.12 bill, stating that if at all he had received the said materials, then, definitely he would have affixed his signature on Ex.P.12 bill. But Ex.P.12 bill does not depicts with respect to the signature of the accused for having received of the materials under Ex.P.12 bill. Thus, the say of the complainant that they 14 C.C.No.9219/2011 have supplied materials in favour of the accused during 2007 is not acceptable one.
21. Thus the complainant has not placed any material evidence to show that the disputed cheques were issued by the accused during the year 2010 for the supply of materials in favour of the accused during the year 2007. On the other hand, the accused relied on Ex.D.1 stop payment instructions letter under which he had given stop payment instructions to the banking authority i.,e to the Manager, Shamrao Vithal Co- operative Bank, Peenya Industrial Estate Branch, Bangalore requesting them for stopping the payment of the cheque bg.No.723238, 723239, 723240 & 723241 respetively all the cheques were for Rs.57,909/- the said stop payment instructions was given by the accused to the bank on 11.02.2007.
22. Further, it nis elicited during the cross- examination of PW1 that the alleged Ex.P.1 to P.3 cheques are all for Rs.57,909/- etc., & all the cheques are serial wise numbered cheques. It is also admitted by 15 C.C.No.9219/2011 the complainant that, he had obtained 4 cheques from the accused and those cheques were serial wise numbered cheques. This evidence correspondence to Ex.D.1 stop payment instructions letter. Wherein the alleged cheque which are shown in the said document are serial wise numbered cheques commencing from 723238 to 723241 including the Ex.P.1 to P.3 cheques i.,e the cheque bg.No.723237 to 723240 for a sum of Rs.57,909/- each. On careful reading of the Ex.D.1 stop payment letter, it shows that the accused has given stop payment instructions to the banking authority to stop payment in respect to Ex.P.1 to P.3 cheques also. Thus the say of complainant that accused had issued Ex.P.1 to P.3 cheques during the year 2010 creates doubt. Because when the accused had given stop payment instructions in respect to Ex.P.1 to P.3 cheques along with other 2 cheques during the year 2007 itself, then how it could be possible for the accused to give those cheques during the year 2010 only, as the disputed cheques were also covered under the Ex.D.1 stop payment instructions letter. Because, it is alleged by the complainant that, the disputed cheques were issued by 16 C.C.No.9219/2011 the accused in his favour during the year 2010 for the materials supplied to him during the year 2007 then, how it could be possible for the accused to give stop payment instructions to the disputed cheques during the year 2007 itself and how the accused could anticipate that he has going to give those cheques i.,e serial wise numbered cheques i.,e Ex.P.1 to P.3 along with other two cheques only, in favour of the complainant during the year 2010. Thus the say of the complainant that, the disputed cheques i.e., Ex.P.1 to P.3 cheques were given by the accused towards discharge of the part liability during the year 2010, creates doubt not acceptable one.
23. Further, as per Ex.D.2 Bank account extract of the accused pertaining to his business concern. Sumkit Impax, Bangalore, depicts about charging of Rs.72/- for honouring the request of the accused for stop payment inrespect to the cheque bg.No.723238 to 723241 on 11.12.2007. It also reflects the fact of honouring of the cheque No.723237 for a sum of Rs.57,909/- on 22.11.2007, and it is also reflects about i.e., the entry pertaining for honouring of the request of 17 C.C.No.9219/2011 the accused for stop payment inrespect to the cheque No.723238 to 723241 by charging Rs.72/-.
24. This evidence correspondence to the Ex.D.1 stop payment instructions letter which contains Ex.P.1 to P.3 cheques disputed cheques number also. This clearly corresponds to the defence of the accused that, the alleged disputed cheques along with other two cheques were given by him infavour of the complainant during the year 2007 only. If the alleged disputed cheques were given infavour of the complainant during the year 2010 towards discharge of the part liability etc., as per the say of the complainant, then how it could be possible to find those entries in Ex.D.2 bank statement of the accused business concern, in respect to the stop payment instructions of cheques bg.No.723238 to 723241 during the year 2007 & it is highly impossible to mention those cheques numbers which was allegedly given in the year 2010 only. This creates doubt to accept the say of the complainant that, the accused had given Ex.P.1 to P.3 cheques towards discharge of the part liability during the 18 C.C.No.9219/2011 year 2010 for the materials supplied to the accused in the year 2007.
25. This circumstances is sufficient to rebut/dispel the burden which arose in favour of the complainant U/s.138 of N.I Act. Hence, the onus is shifted on the shoulder of the complainant to prove the fact that Ex.P.1 to P.3 given by the accused in favour of the complainant during the year 2010 towards discharge of the part liability for the materials supplied to the accused during the year 2007. But as aforesaid discussion, the complainant did not produce any cogent or documentary evidence in that regard. On the other hand, he failed to prove his case beyond shadow of doubt. Hence, I answered Point No.1 in the Negative.
26. Point No.iv : In view of my discussions on Point No.1 in the Negative I proceed to pass the following.....
19 C.C.No.9219/2011
ORDER Acting U/s.255(1) Cr.PC, the accused is acquitted for the offence punishable U/s.138 of N.I.Act.
The bail bond and the surety bond of the accused stands cancelled.
(Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 2nd day of January, 2015) (C.G.Vishalakshi) XIII A.C.M.M., Bangalore.
ANNEXURE Witnesses examined on behalf of the complainant:
PW1 : Rashmikat Mehta Documents marked on behalf of the complainant:
Ex.P.1 to 3 : Cheques
Ex.P.4 to 6 : Bank Endorsements
Ex.P.7 : Copy of the Legal Notice
Ex.P.8 : RPAD receipt
Ex.P.9 : UCP Receipt
Ex.P.10 : Complaint lodged to the postal
Authority about non receipt of post
Ex.P.11 : Reply given by the postal
Ex.P.12 : report as article delivered
Ex.P.13 : Complaint
20 C.C.No.9219/2011
Witnesses examined on behalf of the accused:
DW1 : B.N.Sharma Documents marked on behalf of the accused:
Ex.D.1 : Letter to bank for stop payment Ex.D.2 : Bank statement XIII A.C.M.M Bangalore.21 C.C.No.9219/2011
(Order typed vide separate Sheet) ORDER Acting U/s.255(1) Cr.PC, the accused is acquitted for the offence punishable U/s.138 of N.I.Act.
The bail bond and the surety bond of the accused stands cancelled.
(C.G.Vishalakshi) XIII A.C.M.M., Bangalore.