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Bangalore District Court

M/S.Rajesh Exports Ltd vs M/S.Chinna Jewellers on 19 July, 2018

     IN THE COURT OF THE XXV ADDL. CHIEF
   METROPOLITAN MAGISTRATE, AT BANGALORE

           Dated this the 19th day of July, 2018.
    Present: Smt Shirin Javeed Ansari -BA.LL.B(Hon's)LL.M
                XXV Addl. Chief Metropolitan Magistrate
                Bangalore.

                   C.C.No.18981/2012

Complainant:              M/s.Rajesh Exports Ltd
                          Company Incorporated under the
                          Companies Act
                          and having its office at No.4,
                          Bhatavia Chambers
                          Kumara Krupa Road, Kumara Park
                          East
                          Bangalore 1.
                          Represented by its Authorized
                          representative
                          B.G.Mallikarjun
                          (By Sri Sampath Kumar K-Advocate )

                              - Vs -

Accused:                   1. M/s.Chinna Jewellers
                          Proprietory Concern,
                          Door No.10-1-58D
                          9, Shyam Complex, Maruthi
                          Veethika,
                          Udup 576 101, Represented by its
                          Proprietor
                          Mr.Andar Devi Prasad Shetty.

                          2.Mr.Andar Devi Prasad Shetty
                          S/o.M.Sundar Shetty
                          aged 46 years,
                          Proprietor , M/s.Chinna Jewellers
                          No.140/4/A, 2B, Alevoor,
                          Near Corporation Bank,
                          Udupi 576 133.

                          (By Sri Rathnakar - Advocate )
                                2      C.C.No.18981/2012

Offence complained of:     U/s. 138 of Negotiable Instruments
                           Act.

Plea of accused:           Pleaded not guilty.
Final Order:                Accused No.1 and 2 are Acquitted.
Date of order:              19.7.2018.




         JUDGMENT UNDER SEC.355 OF CR.PC



        This is a complaint filed by the complainant

  u/s.200Cr.P.C.against the accused person for the

  offence punishable u/s.138 Negotiable Instrument Act

  . (Herein after called as the N.I.Act for reference).



        2. The brief facts of the case of the complainant

  are as under:

        The complainant company is incorporated under

  the Companies Act 1956 having its registered office at

  Bangalore . Complainant company is represented by

  its authorized officer Mr.Mayan K Mallik,         who was

  subsequently substituted by Sri         Mallikarjun B.G. .

  The   complainant     submits    that   complainant     is

  engaged in manufacture and sale of gold           and gold

  jewellery items through out the county. The head office

  of the complainant company is located at Bangalore.
                              3       C.C.No.18981/2012

        3. It is further submitted that the accused       are

located in Udupi and accused No.1 is an exclusive

dealer of gold and gold jewellery items manufactured

and supplied      to the accused by the complainant for

the purpose of sale by the accused       on commission

basis.

         The complainant     further submits that the

accused approached        the complainant      for gold and

gold jewellery for sale to be conducted by the accused

in Udupi . The complainant and the accused agreed

and ultimately the said          decision was reduced in

writing in the form of agreement on 19.12.2007.

        4. The complainant further submits that in

pursuance of the said agreement, the complainant

had been supplying gold jewllery and gold coins to

the accused. After series of transaction, the accused

was holding 1393 pieces of 22 carat gold jewellery

weighing 12692.700 gms, and 14 pieces of 24 carrat

coins    weighing   452    gms    and   cash    balance    of

Rs.36,17,792/- as on 26.5.2010 all belonging to the

complainant .

        5.   The complainant further submits that after

several persuasions, the accused returned part of the
                             4       C.C.No.18981/2012

gold and gold jewellery of 1134 pieces of 22 carat gold

weighing 10228.700 gms and 2 pieces of 22 carat gold

weigh 1 gm each. Thus , the accused was still due of

jewellery items of 22 carat of gold jewellery weighing

2464 gms and 24 carat gold jewellery weighing 450

gms . Apart from this , the accused was also due of

Rs.36,17,792/-     as the value of the gold sold and the

proceeds of which       has not been remitted to the

complainant . The value of the gold due and the cash

balance from the accused under this account as on

10.11.2010 was Rs.95,30,386/- .

     6.   The complainant       further submits that the

accused was due for the wholesale department of

2812.3 gms of 22 carat gold valued at Rs.56,83,658/-

as on 10.11.2010       .   The complainant      has also

submitted that both the account put together the

accused became due of Rs.1,52,14,044/-               In this

regard,   the     complainant       had    written    letter

dt.4.11.2010 requesting         the accused to clear the

entire balance.    The complainant        further submits

that towards discharge of the aforesaid debt, the

accused no.1 M/s.Chinna Jewellers through accused

no.2 as proprietor of accused no.1 issued cheque
                           5     C.C.No.18981/2012

bearing   No.198132   dt.17.11.2010   for   a   sum    of

Rs.1,50,00,000/- drawn on Canara Bank, Court Road,

Udupi on an assurance that the said cheque will be

honored in discharge of the debt/liability of the

complainant company. On receipt of the cheque, the

complainant issued letter dt.15.11.2010.

     7. The complainant further submits that as per

the promise of the accused the cheque bearing No.

198132 dt.7.11.2010 for sum of RS.1,50,00,000/-

drawn     on Canara Bank, Udupi was presented for

realization on 21.11.2010 through the complainant's

banker Canara Bank Overseas Branch, Bangalore.

     8. The complainant further submits that          the

said cheque returned unrealized with endorsement

"Funds Insufficient" on 22.11.2010 which attracts the

provisions of Sec.138 of Negotiable Instrument Act.

The act done by the accused is to defraud the

complainant company of the legitimate amount.

     9. The complainant further submits that the

cheque in question had been issued by the accused for

the discharge of the liability. The accused had

impressed upon the complainant        that the cheque

would be honored on presentation. The complainant
                                6       C.C.No.18981/2012

submits that the cheque had been returned for the

reason "Funds Insufficient",           The accused have

consequently      failed   and     neglected     to    pay   the

outstanding amount which was due and payable .

     10. The complainant further submits that the

complainant       company had issued demand notice

dt.23.11.2010 to the accused No.1 and 2 for payment

of the outstanding due amount covered under the

cheque. The said notice is issued through RPAD and

under COP dt.25.11.2010. The complainant                     also

submits that the RPAD sent to the accused no.1 did

not return and as such the complainant had written

a letter to the postal authorities to give the status of

the RPAD.     To the said letter, the postal authorities

have given reply that the same has been served on the

accused. The demand notice, addressed to accused

No.1 and 2 were served on 3.12.2010 . Despite, of this

the accused has issued vague reply dt.14.12.2010 to

the demand notice issued by the complainant .

     11. The complainant further submits that the

accused     had     business       transaction        with   the

complainant.      The   accused     no.2   is   Proprietor     of

accused no.1 M/s. Chinna Jewellers and the accused
                            7        C.C.No.18981/2012

No.2 is responsible personally and incharge of day to

day business conduct of the accused No.1 . Accused

No.2 is the signatory of the cheque.      Hence, accused

No.1and 2 are jointly responsible for the affairs of the

propreitory concern and the consequences of the

dishonor of the cheque.        They are also liable to be

prosecuted u/s.141 of the Negotiable Instrument Act.

     12.    The complainant     further submits that all

the ingredients of SEc.138 and 141 of Negotiable

Instrument Act are attracted in the instant case. The

cause of action of the dishonor of the said cheque and

the offence committed thereby      when the cheque was

issued on 17.11.2010 and when the cheque was

returned unpaid on 22.11.2010, when the demand

notice pursuance of     dishonor of the cheque was

issued on 22.11.2010, and the demand notice served

on accused no.1 and 2 on 3.12.2010 and the time for

payment expired     consequently.      Hence, prayed to

allow the complaint.

      13.     The   complainant     has   lead   his   pre

summoning evidence on 23.8.2012 .and has filed his

affidavit in lieu of Sworn Statement.      Prima-facie a
                                   8         C.C.No.18981/2012

case has been made out against the accused and he

has been summoned vide order of this court.

        14. The accused appeared before this court on

6.10.2016. and he has been enlarged on bail . The

substance of       accusation has been read over to him to

which, he plead not guilty and claims to be tried.

        15.    In his post summoning evidence the

complainant has examined himself as PW 1 and filed

his affidavit, wherein, he has reiterated the averments

made in the complaint.

        16.   In support of       the case, the complainant

has produced        the documents           marked at Ex.P.1 to

Ex.P.9 Ex.P.1 is Certificate of Incorporation. Ex.P.2 is

the Board Resolution.             Ex..P.3 is the      cheque in

question      bearing    No.198132           dt.17.11.2010   for

Rs.1,50,00,000/- Ex.P.4 is the cheque return memo

dt.22.11.2010. Ex.P.5 is the legal notice. Ex.P.6 is the

postal acknowledgement . Ex.P.7 is the letter issued

by the postal authorities dt.7.1.2011. Ex.P.8 is the

reply    notice.    Ex.P.9   is       the     board   resolution

dt.14.8.2012.
                                  9         C.C.No.18981/2012

       17.    The statement of accused u/s.313 Cr.P.C

has   been     recorded.        The    accused      denied   the

incriminating circumstances found against him                and

lead his defence evidence and got marked Ex.D.1 to

Ex.D12       wherein    Ex.D.1       and    Ex.D2   are      the

agreements dt. 19.12.2007 . Ex.D.3 are Ex.D4 are the

mortgage deeds dt.5.1.2008. Ex.D.5&D.6 are                   the

letters dt.26.5.2010 issued by the complainant to the

accused company requesting the accused company to

hand over all the goods belonging to the complainant

to authorized representatives Sri Bheemaiah. Ex.D.7

is the       Certified copy of the receipt discharging

equitable mortgage by deposit of title deeds. Ex.D.8 is

the   Certified   copy     of   the    order   sheet    in   PCR

NO.23707/2010 . Ex.D.9           is the receipt of discharging

equitable mortgage by depositing               of title deeds.

Ex.D.10 is the letter issued by the accused company to

the complainant company, stating hading over of the

goods to Bheemaiah weight of the goods approximately

10228.70 gms           and also regarding termination of

franchise agreement on 26th May 2010 .Ex.D11 is the

reply notice issued by the accused person.             Ex.D12 is

the Certified copy of the order dt.5.2.2018.
                              10      C.C.No.18981/2012

      18.      Both the sides have canvassed there

respective arguments before this court.

      19. Upon hearing arguments, the following

points arise for my consideration:

         1.   Whether      the    complainant
              proves that the accused    has
              committed        an     offence
              punishable u/s. 138 Negotiable
              Instrument       Act ?

      2.      What order.
     20.      My answers to the above points are as

under:

              Point No.1 : In the Negative.

              Point No2 : As per final order for the

                          Following,

                         REASONS

     21 Point No1.: The case of the complainant        is

that the complainant company is incorporated under

the Companies Act 1956 having its registered office at

Bangalore .

     The complainant company is incorporated under

the Companies Act 1956 having its registered office at

Bangalore . Complainant company is represented by

its authorized officer Mr.Mayan K Mallik,        who was

subsequently substituted by Sri        Mallikarjun B.G. .
                                11       C.C.No.18981/2012

The     complainant    submits       that   complainant       is

engaged in manufacture and sale of gold               and gold

jewellery items through out the county. The head office

of the complainant company is located at Bangalore.

        22.   It is further submitted that the accused

are located in Udupi and accused No.1 is an exclusive

dealer of gold and gold jewellery items manufactured

and supplied     to the accused by the complainant for

the purpose of sale by the accused           on commission

basis.

        23. The complainant further submits that the

accused approached          the complainant        for gold and

gold jewellery for sale to be conducted by the accused

in Udupi . The complainant and the accused agreed

and ultimately the said             decision was reduced in

writing in the form of agreement on 19.12.2007.

        24. The complainant further submits that in

pursuance of the said agreement, the complainant

had been supplying gold jewllery and gold coins to

the accused. After series of transaction, the accused

was holding 1393 pieces of 22 carat gold jewellery

weighing 12692.700 gms, and 14 pieces of 24 carrat

coins    weighing     452    gms     and    cash    balance   of
                           12      C.C.No.18981/2012

Rs.36,17,792/- as on 26.5.2010 all belonging to the

complainant .

     25. The complainant further submits that after

several persuasions, the accused returned part of the

gold and gold jewellery of 1134 pieces of 22 carat gold

weighing 10228.700 gms and 2 pieces of 22 carat gold

weigh 1 gm each. Thus , the accused was still due of

jewellery items of 22 carat of gold jewellery weighing

2464 gms and 24 carat gold jewellery weighing 450

gms . Apart from this , the accused was also due of

Rs.36,17,792/-    as the value of the gold sold and the

proceeds of which      has not been remitted to the

complainant . The value of the gold due and the cash

balance from the accused under this account as on

10.11.2010 was Rs.95,30,386/- .

     26. The complainant further submits that the

accused was due for the wholesale department of

2812.3 gms of 22 carat gold valued at Rs.56,83,658/-

as on 10.11.2010      .   The complainant     has also

submitted that both the account put together the

accused became due of Rs.1,52,14,044/-            In this

regard,   the    complainant      had   written    letter
                             13       C.C.No.18981/2012

dt.4.11.2010 requesting          the accused to clear the

entire balance.

     27.     The complainant        further submits that

towards discharge of the aforesaid debt, the accused

no.1 M/s.Chinna Jewellers through accused no.2 as

proprietor of accused no.1 issued cheque bearing

No.198132         dt.17.11.2010     for    a   sum     of

Rs.1,50,00,000/- drawn on Canara Bank, Court Road,

Udupi on an assurance that the said cheque will be

honored in discharge of the debt/liability of the

complainant company. On receipt of the cheque, the

complainant issued letter dt.15.11.2010.

     28.    The complainant       further submits that as

per the promise of the accused the cheque bearing No.

198132 dt.7.11.2010 for sum of RS.1,50,00,000/-

drawn      on Canara Bank, Udupi was presented for

realization on 21.11.2010 through the complainant's

banker Canara Bank Overseas Branch, Bangalore.

     29. The complainant further submits that         the

said cheque returned unrealized with endorsement

"Funds Insufficient" on 22.11.2010 which attracts the

provisions of Sec.138 of Negotiable Instrument Act.
                            14       C.C.No.18981/2012

The act done by the accused is to defraud the

complainant company of the legitimate amount.

     30. The complainant further submits that the

cheque in question had been issued by the accused for

the discharge of the liability. The accused had

impressed upon the complainant         that the cheque

would be honored on presentation. The complainant

submits that the cheque had been returned for the

reason "Funds Insufficient",        The accused have

consequently    failed   and    neglected   to   pay   the

outstanding amount which was due and payable .

     31. The complainant further submits that the

complainant     company had issued demand notice

dt.23.11.2010 to the accused No.1 and 2 for payment

of the outstanding due amount covered under the

cheque. The said notice is issued through RPAD and

under COP dt.25.11.2010. The complainant               also

submits that the RPAD sent to the accused no.1 did

not return and as such the complainant had written

a letter to the postal authorities to give the status of

the RPAD.     To the said letter, the postal authorities

have given reply that the same has been served on the

accused. The demand notice, addressed to accused
                                 15        C.C.No.18981/2012

No.1 and 2 were served on 3.12.2010 . Despite, of this

the accused has issued vague reply dt.14.12.2010 to

the demand notice issued by the complainant .

     32. The complainant further submits that the

accused       had     business        transaction        with    the

complainant.        The   accused      no.2   is    Proprietor    of

accused no.1 M/s. Chinna Jewellers and the accused

No.2 is responsible personally and incharge of day to

day business conduct of the accused No.1 . Accused

No.2 is the signatory of the cheque.               Hence, accused

No.1and 2 are jointly responsible for the affairs of the

propreitory concern and the consequences of the

dishonor of the cheque.              They are also liable to be

prosecuted u/s.141 of the Negotiable Instrument Act.

 The complainant           further submits that all the

ingredients    of     SEc.138    and      141       of   Negotiable

Instrument Act are attracted in the instant case. The

cause of action of the dishonor of the said cheque and

the offence committed thereby            when the cheque was

issued on 17.11.2010 and when the cheque was

returned unpaid on 22.11.2010, when the demand

notice pursuance of          dishonor of the cheque was

issued on 22.11.2010, and the demand notice served
                             16      C.C.No.18981/2012

on accused no.1 and 2 on 3.12.2010 and the time for

payment expired consequently

      33. On the other hand, it is the defence of the

accused person that the complaint filed by the

complainant is not maintainable either in the eyes of

law or on the basis of facts. The complainant       by

holding the cheque with them         had come up with

present   complaint in order to enrich themselves in

unlawful way though the said cheque in question is

not issued by the accused towards clearance of

liability. Therefore, the complaint lacks bonafideness

and it is liable to be dismissed.

      34. The accused further        submits that the

cheque in question is not issued by him towards

clearance of liability     and the complainant     has

misused    the cheque and approached this court in

order to gain wrongful amount.       The accused is not

aware of presentation of the alleged cheque for

encashment on 21.11.2010 and return of the same on

22.11.2010 with endorsement "Funds Insufficient".

The accused has not committed an offence punishable

u/s.138 Negotiable Instrument Act
                             17       C.C.No.18981/2012

        35. It is further submitted by the accused that

the complainant company is engaged in the business

of     gold   jewellery   and    other   allied   products.

M/s.Chinna Jewellers is also engaged in the business

of sale of gold jewellery.         After negotiation and

discussion between the complainant and the accused

a franchise agreement, dt.19.12.2007         came    to be

entered between the parties and according to the said

franchise agreement, the accused         shall have to sell

the products and services of the complainant           and

others as enshrined in the agreement of franchise.

According to the said agreement, the accused are

doing business with all due diligence.

        36. It is submitted that at the time of entering

into     franchise agreement on 19.12.2007 towards

security to run the business the accused paid sum of

Rs.15,00,000/-towards the deposit to the complainant

which carried interest at 18% p.a. a Mortgage deed in

respect of 2 properties bearing No.150-4A 2B situated

at Alevoor village Udupi measuring 9 cents and 6 cents

respectively with built area of about 3200 sq ft and

another mortgage deed in respect of property bearing

No.10-1- 58D8 and 10-1-58D9 measuring 450 sq ft
                                18     C.C.No.18981/2012

and 700 sq ft on the ground floor of commercial

complex        for the goods supplied by the complainant.

That both the deeds have been registered as document

no.UDP-1-105379 /2007-08 book No.1 stored in CD

no.UDPD 50 and document No.UDP 1-1-5380-2007-

08 book No.1 stored in UDPD 50 in the office of the

Sub Registrar Udupi. At that juncture the cheque in

question was handed over to the complainant by the

accused which is well within the knowledge of the

complainant .

     37.       As per the terms of the agreement, the

complainant        used to provide the stocks and the

accused were running the business as per the item to

item dictum of the complainant and the stocks so

supplied were meant for sale and it was dispatched on

consignment sale basis and it was the          complainant

who controlled the price of day, designs of the jwelerry,

no of pieces to be supplied to the outlet and types of

products and the accused had no role           in the trade

except    to    sell   the   stock   so   supplied   by   the

complainant. It is further submitted that subsequent

to the sale, the accused used to remit the value thereof

and it was centralized billing.       The accused worked
                                19         C.C.No.18981/2012

upto the satisfaction of the complainant              as per the

terms and conditions of the agreement, dt.19.12.2007.

       38. It is further submitted by the accused that

during     the      course           of      business         some

misunderstanding crept between the complainant and

the    accused regarding non supply of the requisite

design, type of products, latest stock, which resulted

in ending up of the franchise business. It is submitted

that    when     the accused informed the complainant

about     the    termination    of     the    agreement,        the

complainant        with     malafide      intention     on    false,

frivolous and fictitious grounds , a private complaint

came to be lodged against the accused on the file of

Hon'ble VIII ACMM for the alleged offence punishable

u/s.420     of IPC. Subsequently , the said PCR is

referred to High Grounds police station u/s.156(3) of

the    Cr.P.C.     and    an    application     filed    by     the

complainant u/s.93(1) of Cr.P.C and it was ordered to

seize the goods in case if the Police Inspector feels

necessity of seizure of the goods for the purpose of

investigation. After filing the said complaint, the

complainant      sent his      authorized representative to

the place of business of the accused along with
                                 20     C.C.No.18981/2012

gundas and under said order of the court, the

complainant        succeeded in taking away all the

jewellery. At that point of time the accused insisted

for cancellation of mortgage deed and accordingly, the

complainant        representative      acting      upon   the

complainant's       instructions executed the discharge

receipt on 22.6.2010.

      39.     It    is   submitted    that   the   authorized

representatives acted upon the written instructions of

the complainant          and   the letter addressed to the

accused dt.26.5.2010. Accordingly , all the jewellery

and the cash have been returned and handed over to

the   representative      of   the   complainant    company,

Sri.Bheemaiah .

      40. It is further submitted that,         in good faith

and to have cordial        relationship, the accused      has

handed over all the goods which were in the custody

and settled the amount payable by the accused to the

complainant reserving his right to claim the amount

due from the complainant . At that point of time the

complainant        assured that the cheque in question

which remained with the Complainant                 would be

returned to the accused soon after the goods received
                            21     C.C.No.18981/2012

and also     further assured to return all the other

documents.     But, subsequently,     the complainant

failed to return the cheque to the accused for the

reason that the said cheque has been misplaced and

could not be traced . The accused believed the version

of the complainant    in this regard and in good faith

reposed the confidence with the complainant .        The

accused kept quite      hoping that the complainant

would return the said cheque in question to the

accused.     But, the complainant        as per their

assurance did not return the cheque in question nor

did they settle the     outstanding    amount to the

accused. In this regard the accused caused legal

notice dt.3.6.2010    calling upon the complainant      to

pay sum of Rs.1,14,45,619/- to the accused and also

to comply with the demands made therein . The said

legal notice is duly acknowledge by the complainant .

     41. It is further submitted that the accused has

also filed caveat petition before the Hon'ble City Civil

Judge, Bangalore in Caveat Petition No.2715/2010 on

18.6.2010    apprehending that the complainant     may

approach the Civil Court of law     with an application

u/s.9 of Arbitration and Conciliation Act for interim
                                22       C.C.No.18981/2012

relief.     The accused has been agitating against the

complainant of the misdeeds and having lost the

reputation       in the society,       fighting legally , the

complainant       by misusing the cheque in question had

initiated the malicious proceeding against the accused.

The       questions    of   issuance    of   cheque   bearing

No.198132 dt.17.11.2010 for Rs.1,50,00,000/-               of

Canara bank does not arise at all . The complainant

has misused the cheque obtained at the time of

entering into the franchise agreement dt.19.12.2007

and under the declaration dt.3.1.2008.                Without

returning the same and by inventing the story ,the

complainant       has filed the present case against the

accused.

          42. It is further submitted that the question of

issuing the cheque for discharge of debt/liability does

not arise for consideration because as per the letter

dt.22.6.2010,         the representative of the complainant

Sri K. V. Bheemaiah has discharged the mortgage deed

and also issued the receipt for having received the gold

weighing 10228.70 gms . When entire settlement and

dispute, misunderstanding crept in have been settled,

the questions of accused issuing             the cheque    in
                            23       C.C.No.18981/2012

question dt.17.10.2010     does not arise at all.   The

complainant       without returning       the cheque in

question has misused the same.

     43.   It is further submitted that,       once the

criminal case instituted by the complainant          on

frivolous grounds in PCR 23707/10           wherein the

jurisdictional police filed B report on 16.8.2010 after

investigation, the    complainant    by    inventing the

story and misusing the cheque in question, filed the

present complaint without returning the cheque.

Therefore, the complainant is not fair in his approach

to this court.       Hence, on all these grounds the

accused prayed to dismiss the complaint .

     44.    During the     course of arguments, the

learned counsel      for the complainant vehemently

argued before the court that the matter is admitted by

the accused that the complainant is manufacturer of

gold and gold jewellery.   The franchise agreement, is

not yet    terminated. Unless it is terminated, non

performance of the agreement is violation of the terms

of the said agreement. The performance           of the

agreement is recurring.    The liability of the accused

continues when the accused did not          perform the
                             24     C.C.No.18981/2012

agreement.     The complainant     asked to return the

items as per Ex.D.5 which pertains to handing over of

the goods. Ex.D.5 and Ex.D6 are undisputed by the

accused.

     45. The    learned counsel        for the complainant

argues that as per the averments of the accused he

has paid Rs.15,00,000/- in second part of Ex.D6 this

fact is admitted.    The said Rs.15,00,000/- amount is

deposited    under   the   franchise    agreement.    The

accused     cannot claim it.     He cannot take it into

consideration that     the security deposit paid to the

complainant     has to be returned to him.       That can

be paid back to the complainant company if the

company does not suffer any loss. When mortgage

deed is executed, the liability of the accused extends.

The liability to return the market value of the gold is

upon the accused for which the accused has issued

the cheque in question . Therefore, there existed a

legally recoverable debt       for which the accused is

liable to pay to the complainant . Hence, on all these

grounds learned counsel for the complainant prayed

to convict the accused person for having committed an
                              25      C.C.No.18981/2012

offence punishable u/s.138 Negotiable Instrument Act

and to award compensation to the complainant .

     46. On the other hand, learned counsel for the

accused vehemently argued before the court, that       as

per the allegations made by the complainant , Ex.P.3

the cheque was issued         on 17.11.2010.     But the

agreement entered into by the complainant        and the

accused   persons     are    dated    19.12.2007.    The

complainant have obtained 2 declarations from the

accused person. In fact there are 3 declarations under

which the complainant         have obtained 3 different

cheques from the accused. At that point of time, the

accused had given blank signed cheque to the

complainant in the year 2008 itself. But one among

the said cheques came to be filled in the year 2011.

     47. Learned counsel          for the accused further

vehemently argued that PW 1 has no knowledge about

the transaction. When an application u/s.91 Cr.P.C.

was filed by the accused seeking direction against the

complainant to produce the declarations entered into

between the complainant       and the accused person ,

and though this court allowed the said application,

but the complainant         did    not produce it.   The
                           26      C.C.No.18981/2012

complainant has withheld the documents       which are

necessary for adjudication of the matter. Hence

adverse inference has to be drawn against the

complainant .

     48.   Learned counsel     for the accused further

argued that Ex.D.5 is issued by the accused on

26.5.2010 as the transaction were closed. Ex.D.6 is

issued by the complainant         on 26.5.2010. The

accused has returned all the gold and gold jewellery to

the complainant and the complainant has endorsed

on it. Soon after this, release deed is executed by the

complainant .

     49. It is further argued by the accused counsel

that though the complainant states in his complaint

that they have lodged a complaint against the accused

person for the offence punishable    u/s.420 IPC, but

failed to prove the same.      The police have filed B

report   against    the   said   complaint    and   the

complainant has not challenged the said B report till

today. The case was closed on 9.12.2015 itself.

     50. It is further argued by the learned counsel

for the accused    that after lapse of 6     months of

franchise agreement, the complainant has presented
                                 27       C.C.No.18981/2012

the cheque in question . IN demand notice, no details

of the transaction         and the date of issuance of the

cheque       are mentioned.     The demand Notice is also

not in       the required format /not in accordance with

the provisions of Sec. 138 Negotiable Instrument Act.

Therefore,       the learned counsel        for the accused

prayed to acquit the accused person by dismissing the

complaint.

       51. IN reply to the arguments, canvassed by the

learned counsel for the accused , learned counsel for

the complainant argued that the mortgage agreement,

overseeds the franchise agreement. The accused             has

to first terminate the mortgage deed. He should

discharge his liability first. There are correspondence

made by the complainant seeking for return of gold .

The accused admits that he has returned part of the

gold only. Hence, the cheque is issued in response to

the settlement arrived at by the          parties . Therefore,

the liability of the accused is to pay the cheque

amount . Hence, the accused cannot escape from his

liability.      Thus,   the    learned   counsel     for   the

complainant        again    prayed to convict the accused

person .
                                28    C.C.No.18981/2012

      52.   In this back ground after consideration of

the arguments canvassed by both the sides an

important aspect which is required to be stated at the

outset is that     the accused had filed an application

u/s.91 of Cr.P.C         seeking direction against the

complainant       to produce    the declaration   executed

into between the complainant           and the accused

dt.3.1.2008 which was admitted by the complainant

during the course of cross examination. According to

the accused person, the said declaration is in the

possession of the complainant . The said document i.e

the declaration     was necessary for adjudication of the

matter on merits.     But, the complainant had opposed

said application, by way of objections stating the

accused has no matter of right to compel the

complainant to produce any document. The accused

has issued the cheque in question in discharge of his

liability   and     the said cheque is dishonored on

presentation. The complainant        has duly issued and

served the notice upon the accused         and despite of

service of notice the accused has not paid the cheque

amount. Hence. committed an offence punishable

u/s.138 Negotiable Instrument Act . But, on entire
                                29          C.C.No.18981/2012

perusal of the cross examination portion of PW 1, it is

found that PW1 in his cross examination dt.12.9.2017

admitted that there is declaration pertaining to this

case and they have failed to produce the said

declaration.    The said declaration has been executed

into between the complainant                 and the accused

person. Having admitted this factual matter of the

case, the complainant has failed to produce the same

before the court inspite of issuance of direction vide

order dt.5.2.2018.       On the           subsequent   dates of

hearing the complainant has filed memo stating that

all   the documents are         released in favour of the

accused at the initial level . They are searching the

same but       unable to find it.          This shows that the

complainant     have not complied the orders made by

this court. They have withheld the material documents

from producing the same before the court . Therefore,

as per Sec.114 of Evidence Act, adverse inference has

to be drawn against the complainant for withholding

of relevant evidence / document

      53.      Further   the        presumption    under   the

Negotiable     Instrument           Act     was   drawn     for

consideration. No doubt the court has to presume a
                                30        C.C.No.18981/2012

Negotiable Instrument to be for consideration unless

the existence of consideration is disproved i.e on

consideration of matter before it, the court either

believes that the consideration does not exist or

considers the non existence of consideration so

probable that       a prudent man ought under the

circumstances of the particular case to act upon the

supposition that the consideration does not exists.

      54.    The presumption u/s.118 and 139 is with

regard      to issuance of the       cheque/instrument for

consideration and in discharge of debt. The initial

burden is upon the accused to rebut the said

presumption by raising a probable defence.               If he

discharges the      said burden,         the onus thereafter

shifts on to the complainant             to prove his case.

Whether the initial burden has been discharged by the

accused is a questions of           fact. But, the burden of

proof on the accused is not heavy.              He need not

disprove the case of the prosecution in its entirety. He

can   discharge         the   burden      on   the   basis    of

preponderance      of    probabilities    through    direct   or

circumstantial evidence. For the said purpose the
                                 31       C.C.No.18981/2012

accused can rely upon the evidence adduced by the

complainant.

      55.    In the instant      case as per the complaint

averments, the complainant and the accused entered

into franchise agreement that towards the discharge

of the said liability,    the accused issued the cheque in

question and the said cheque got dishonored for the

reason      "Funds Insufficient"      in the account of the

accused.      The complainant        alleges that the cheque

was    issued    towards     the     amount    due     to   the

complainant      in relation to franchise agreement. The

accused defends his case on the grounds that he had

already returned all the gold and gold jewellery to the

complainant to its authorized person Sri Bheemaiah

and he has already handed over the sale proceeds to

the complainant.         At the time of entering into the

agreement, the accused had deposited Rs.15,00,000/-

security deposit amount         and he had no dues to be

paid to the complainant. At the time of entering into

the transaction,        there were declaration executed

between the parties and under the said declaration,

the complainant obtained some security cheques from

the accused       and    even    after   termination   of   the
                               32      C.C.No.18981/2012

transaction, the complainant         has misused the said

cheque obtained for the purpose of security.             Despite

of admitting the fact that the declaration was executed

between the parties, complainant have failed to

produce the same. This itself is sufficient to rebut the

presumption u/s.118 of Evidence Act.

      56. On careful perusal of cross examination of

PW 1, it is found that        it appears that PW 1 is not

aware of the date when the alleged cheque came to be

issued in favour of the complainant . It is undisputed

by the complainant that there are other documents

pertaining to the transaction between the complainant

and     the    accused     person.        During   the     cross

examination the accused counsel got marked Ex.D.1

to Ex.D7 by way of confrontation. ExD.1 and Ex.D2

are the        agreements dt.19.12.2007 entered             into

between       the   complainant       and    the     accused

proprietory concern.       Ex.D3 and Ex.D4 are mortgage

deeds     executed    in    favour   of    Mayank.K.M,       the

representative of the complainant company. Further

the counsel for the accused produced the declaration

pertaining to the present transaction.         But since the

said declaration are xerox , they are not                marked
                            33        C.C.No.18981/2012

before the court. But this document is admitted by

PW1 in his cross examination. The declaration is

dt.18.12.2007, wherein, at para no. 6 it is clearly

mentioned that in discharge of the debt /liability,

M/s.Chinna Jewellers, the accused concern have

confirmed , declared and accepted the           issuance of

post dated cheques in favour of the complainant

bearing No.198132 drawn on Canara Bank, Court

Road branch, Udupi for Rs.1,50,00,000/- duly signed

by Mr.Andar Devi Prasad Shetty the authorized

signatory of M/s.Chinna Jewellers.         This aspect of

the matter clearly go to show that       the accused has

issued a post dated cheque at the time of entering into

the transaction in favour of the complainant .          This

aspect of the matter is clearly admitted by PW 1 in his

cross   examination   stating    that    they    have   not

produced the said declaration before the court and

that they have no hurdle to produce the same.

Admittedly, the accused had issued post dated cheque

in favour of the complainant in discharge of the

liability of the transaction    between the complainant

and the accused. If this aspect of the mater is taken

into consideration, then       the questions arises as to
                           34      C.C.No.18981/2012

whether there was a legally enforceable debt    by the

accused person in favour of the complainant as on the

date mentioned in the cheque. Admittedly the said

declaration is of the year 2007 and the date mentioned

in the cheque is 17.11.2010.       This aspect of the

matter itself creates doubt on the very case of the

complainant .

     57.    Admittedly the complainant    had also got

executed a mortgage deed in his favour from the

accused person. It is clearly admitted by PW 1 in his

cross examination that the said    mortgage deed and

the franchise deed are closed.    After closure of said

mortgage deed and franchise deed ,there is no further

transaction between the complainant and the accused

person.

     58. The accused has further produced Ex.D.7,

the Certified copy of the receipt discharging       an

equitable mortgage by deposit of title deeds wherein at

page NO.2    it is clearly mentioned in the said deed

dt.22.6.2010 that the mortgager       Sri. Andar Devi

Prasad Shetty i.e the accused in the instant case has

desired to close the mortgage deed . Under the said

equitable mortgage deed by paying the entire amount
                             35        C.C.No.18981/2012

of the mortgage and get the title deeds of the schedule

property freed from the charge of the said equitable

mortgage    deed.    It is further mentioned that the

mortgager has paid and the          mortgagee received the

entire amount of the debt i.e 1,10,00,000/-             and

accordingly the mortgagee agreed to execute receipt

thereof in favour of the mortgager i.e the accused

person.    Said Ex.D.7 is a registered document

produced by the accused. The complainant has not

at all whispered about this document either in his

complaint or during the trial.         This aspect of the

matter shows that the complainant          has suppressed

the material facts before        this court.      When the

transaction,    between the complainant            and the

accused    persons has itself been closed, and the

complainant    has executed the receipt        discharging

equitable mortgage by deposit of title deeds in favour

of the accused, the questions of existence of liability of

Rs.1,50,00,000/- in favour of the complainant          does

not arise at all. It is necessary to repeat here that the

said   agreement,   ie   receipt    discharging   equitable

mortgage by deposit of title deed is dt.22.6.2010 and

the cheque in question is dt. 17.11.2010.         Therefore,
                             36       C.C.No.18981/2012

this aspect of the matter surrounds the case of the

complainant with suspicion. The complainant has not

at all tried to furnish explanation in this regard. But

PW 1 has clearly admitted the documents in his cross

examination, Further , Ex.D.5        further makes it clear

that the complainant themselves on 26.5.2010 asked

the accused concern to hand over the goods to their

authorized representative whose signature they have

attested in Ex.D.5.   Further Ex.D.6 clearly go to show

that the complainant themselves asked the accused

to   close down the franchise agreement. The contents

of Ex.D.6 clearly go to show that as per the mutual

agreement      between the complainant           and the

accused,      the complainant        have requested the

accused to hand over the         jewellery as mentioned in

Ex.D.6 and     it is also mentioned in Ex.D.6 that the

complainant     are holding deposit of Rs.15,00,000/-

belonging      to   the   accused     person   which   the

complainant have offered the accused to deduct out

of the cash payable to them. It is further mentioned

in Ex.D6 that on receipt of the            gold and cash

mentioned in Ex.D6, they have released the mortgage

of the property to the accused. It is also mentioned
                             37       C.C.No.18981/2012

that upon clearance of the gold items and the cash

mentioned in Ex.D.6, i.e

1. 14 piece weighing 452 gms of 24 carat gold coins.

2. 1393 pieces weighing 12692.7 gms of 22 carat gold

   jewellery. .

3. Cash of 36,17,792/-           , the complainant    has

      undertaken to sign any paper for release of the

      mortgage .

This aspect of the matter shows that        after clearing

the above mentioned gold and cash from the accused

person ,the complainant have undertaken to release

the mortgaged property.           Accordingly, they have

released the mortgaged property on 22.6.2010.        This

aspect of the matter further makes it clear that the

accused has cleared the above mentioned gold and

cash in favour of the complainant . Then only, they

have released the mortgaged property in favour of the

accused person.       All these aspects of the matter

clearly go to show that as on the date mentioned in the

cheque, there exists no legally enforceable debt or

other liability   in favour of the complainant from the

accused person .
                                  38    C.C.No.18981/2012

       59.   Though the complainant           have initiated a

criminal proceedings u/s.420 IPC against the accused

person ,but , on perusal of Ex.D.8 it is clear that after

due investigation the Investigation Officer has filed B

summary report before the court, and the Hon'ble

court accepted the said B summary report and closed

the matter.    If at all there was any liability or amount

to be paid by the accused person, the complainant

would have contested or challenged the said B

summary report filed by the Investigation Officer. But,

absolutely no such efforts are done by the complainant

in this regard.      The complainant          has suppressed

many     material    facts   before    this    court.       The

complainant         has   also    withheld    many      material

documents from being produced before this court.

Therefore,    this aspect of the matter gives opportunity

to the court to draw adverse inference against the

complainant .

       60. It appears that PW 1 the representatives of

the complainant company is not aware of any factual

matrix of the case. He has clearly stated in cross-

examination that he does not remember of the date of

statutory notice to the accused person as well as the
                              39        C.C.No.18981/2012

date of its service on the accused.           PW 1 has also

shown his ignorance by saying that he does not know

whether the accused replied the said notice. All these

aspects of the matter show that PW 1 has failed to

depose the factual matrix of the case before this court.

PW 1 does not even remember that to which bank the

cheque was presented. He does not also remember the

cheque number and the branch of the bank of the

accused.     Pw1 has absolutely failed to depose the

nature of all the documents that are produced by the

complainant in this case.

       61.     The complainant     has    utterly failed to

prove his case beyond        reasonable doubt.        On the

other hand, the accused        by producing cogent and

convincing material document before this court, has

been    successful    in   rebutting    the    case   of   the

complainant .        Therefore, under these facts and

circumstances of the case , the court is of the opinion

that the complainant has utterly failed to prove the

charges leveled against the accused person. Therefore,

the complaint is liable to be dismissed. On the other

hand,    the    accused     has   been        successful    in

probabalizing his defence before this court by way of
                                40      C.C.No.18981/2012

leading defence     evidence and producing         Ex.D.1 to

Ex.D9. Hence, in view of this, I answer Point No.1 in

the negative.

      62.Point      No.2: In view of the reasons stated

and discussed above, the complainant has miserably

failed to    prove the guilt of the accused       punishable

u/s.138 Negotiable Instrument Act.

      Hence, I proceed to pass the following :

                          ORDER

Exercising the powers conferred upon this court u/s.255(1) Cr.P.C., the accusedNo.1 and 2 are hereby Acquitted of the offence punishable under Sec.138 Negotiable Instrument Act.

The bail bond of the accused person and that of the surety if any stand cancelled.

(Dictated to the Stenographer directly on the computer, typed by her, corrected and signed then pronounced by me in the open court on this the 19th day of July , 2018).

( SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.

41 C.C.No.18981/2012

ANNEXURE

1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:

PW1 : B.G.Mallikarjun.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P1 : Certificate of Incorporation. Ex.P2 : Board Resolution.
     Ex.P3     : Cheque.
     Ex.P4     : Cheque return memo
     Ex.P5      : Legal Notice.
     Ex.P6     : Postal acknowledgement.
     Ex.P7     : letter.
     Ex.P8     : Reply notice.
     Ex.P9     : Board Resolution.

3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
DW1 : Andar Devi Prasad Shetty.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
Ex.D1&2 : Agreements. Ex.D3&4 : Mortgage Deeds Ex.D5&6 : Letters Ex.D7 : CC of receipt.
Ex.D8 : CC of the OS in PCR 23707/10.
     Ex.D9     :   CC of receipt.
     Ex.D10    :   Letter.
     Ex.D11    :   Reply Notice.
     Ex.D12    :   CC of the order dt.5.2.2018.




(SHIRIN JAVEED ANSARI) XXV A.C.M.M., BANGALORE.
42 C.C.No.18981/2012
19.7.2018.

For judgment:

ORDER (Judgment pronounced in open court vide separate sheets) Exercising the powers conferred upon this court u/s.255(1) Cr.P.C., the accusedNo.1 and 2 are hereby Acquitted of the offence punishable under Sec.138 Negotiable Instrument Act.
The bail bond of the accused person and that of the surety if any stand cancelled.
XXV A.C.M.M., BANGALORE.
43 C.C.No.18981/2012