Bangalore District Court
R/At No.E38 vs Bagani Hotel on 3 September, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 3rd DAY OF SEPTEMBER, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.53989/2017
Sri. B.S. Rajesh
S/o. L.K. Shivakumar Swamy
COMPLAINANT R/at No.E381, Raghavendra Nagar, 2nd
Cross, Hennur Main Road, Kalyan Nagar,
Bengaluru - 560 043.
Sri. Ramesh K.P
S/o. Puttaiah
Aged about 38 years, R/at 14/1 & 15/1,
Maruthi Industrial Estate, Phase - 2,
Annaporni Juice Centre, Hoodi Village, Near
ACCUSED Bagani Hotel, Whitefield Road, Bengaluru -
560 048
Also at : Nethra Tech, Old No.181, New Plot
No.40, EPIP Industrial Area, Annaporni Juice
Centre, Sy. No.28, Kundalahalli Vilalge,
Bengaluru - 560 066.
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.53989/2017
JUDGMENT
The complainant has approached this court with the complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w Sec.142 of Negotiable Instruments Act, 1881. (herein after referred as N.I. Act)
2. The case of the complainant is that, the complainant and accused are friends since 2008 and the accused had come up with an idea of joint venture business in the name of Annaporni Juice Centre at Hoodi, Mahadevapura in the year 2012. The complainant and accused had started juice center with an intention to supply the same to "GOOD RICH" Company which is now changed and called as "UTC AERO SPACE SYSTEM". Further the complainant had invested a sum of Rs.3,50,000/- for setting up the said juice center by purchasing two dosa tawas, two steel counters, three grinders, three juice mixtures, two electric stoves and other kitchen items and the accused had also invested Rs.1 lakh for aluminum partition to set up the shop. The complainant was managing the Annapurni juice Center counters. Since the accused was having good contact with GOOD RICH Company administrator, the agreement was executed between the accused and GOOD RICH company and payment of bills was credited to the 3 C.C. No.53989/2017 account of Annapurni juice Center. Thereafter the accused used to calculate the share of the complainant in the business and used to pay the share of the complainant by cheque or in cash. The complainant and accused conducted the business for a period of three years together i.e till July 2015. In the month of July 2015, joint venture business came to be closed as the complainant went out of the joint venture business. The accused was not making payment on time and used to utilize the share of the complainant. When the complainant insisted for full and final settlement, the accused had issued cheque bearing No.033671 dtd.17.10.2016 for a sum of Rs.4,26,500/- drawn on Bank of Maharashtra towards share of the complainant. Further all kitchen equipment purchased by the complainant remained with the accused and the accused had promised to make payment for kitchen equipment also within shorts span of time.
3. It is further case of the complainant that the complainant had presented the cheque issued by the accused for encashment through his banker -HDFC Bank Ltd., Richmond Road branch, Bengaluru. But the said cheque was returned dishonoured for the reason "funds insufficient" vide bank endorsement dated 18.10.2016. Thereafter the complainant brought this fact to the notice of the accused, but the accused gave evasive reply and he had 4 C.C. No.53989/2017 been postponing the payment. Under these attending circumstances, the complainant got issued legal notice dated 05.11.2016 to the accused by RPAD to the two addresses of the accused. The notice so sent was served on the first address of the accused and notice sent to the second address was not returned and to that effect the complainant had given complaint to the postal department. It is further contended that in spite of the service of notice, the accused had neither complied with the lawful demand made therein nor issued any reply and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Accordingly on these grounds, the complainant has prayed for punishment to the accused and for grant of compensation in his favour to meet the ends of justice.
4. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn 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 and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued.
5. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The 5 C.C. No.53989/2017 accused has denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the complainant himself examined as CW.1 and got marked as many as six documents as per Ex.P1 to P6 and closed his evidence. After closure of the complainant's side evidence, statement of the accused as provided U/s.313 of Cr.PC was recorded. The accused had denied the incriminating circumstances found in the evidence of the complainant and examined himself as DW.1 and got marked 13 documents as per Ex.D1 to D13 and closed his evidence and thereby evidence of the parties concluded.
7. Heard the arguments of the learned counsel for the complainant. The learned counsel for the accused has filed his written argument. The learned coinsel for accused has rlied upon the following citations;
i) LAWS (KAR) 2010 152 - (B. Girish Vs S. Ramaiah)
ii) LAWS (KAR) 2013 172 - (Nandi Agro Fertilizers Vs D. Satish S/o. D. Jayanna)
8. On perusal of the entire material available on file and also on hearing the arguments, the points that would arise for consideration are:-
6 C.C. No.53989/20171) Whether the complainant proves that the accused had issued cheque in question in discharge of the legally recoverable debt/liability 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 : In 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. Before peeping into the disputed facts, it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court at this stage itself. On going through the rival contention of the parties, oral and documentary evidence, it is clear that the complainant and accused are known to each other since 7 C.C. No.53989/2017 2008 and the complainant and accused together worked in Annaporni Juice Centre for certain years. It is not in dispute that accused was running Annaporni Juice Centre as its Proprietor and also that he entered into Service Agreement with Good Rich Company as found in Ex.D11 and also entered into Master Terms Agreements as found in Ex.D12. It is also not in dispute that the Vat Registration Certificate and Trade License Certificate of Annaporni Juice Centre were in the name of the accused and in that regard the accused has produced Vat Registration Certificate and Trade License Certificate as per Ex.D9 and D10 and in that regard there is no dispute. Further the accused has also produced Registration Certificate standing in his name, issued by Food Safety and Standards Authority of India in respect of Annaporni Juice Centre as per Ex.D8 and that is also not in dispute. It is admitted by the accused that the cheque in question belonged to him and the same was signed by him by filling up the amount. It is also clear that the complainant presented the cheque in question for encashment through his banker and the same was dishonoured for the reason "funds insufficient" on 18.10.2016 and thereafter the complainant got issued legal notice to the accused in that regard. Further it is also clear that the accused had taken hand loan of Rs.2 lakhs in the year 2014 from uncle of the complainant by name Krishnappa through complainant 8 C.C. No.53989/2017 himself. The complainant has admitted the receiving of Rs.4,26,500/- from the accused through cheque on 09.09.2015 and in that regard the accused has produced bank statement as per Ex.D13 in respect of which there is no dispute.
11. With the above admitted facts, now the facts in dispute are analyzed, 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 his plea for the said offence and also denied the incriminating circumstances found in the evidence of the complainant at the time of recording his statement U/s.313 of Cr.PC. On going through the cross-examination of CW.1, statement U/s.313 of Cr.PC and evidence of the accused, it is clear that the accused has specifically denied the investment of Rs.3,50,000/- by the complainant in Annaporni Juice Centre, claim of the complainant for Rs.4,26,500/- and also issuance of cheque for Rs.4,26,500/- towards payment of the share of the complainant in toto as put up by the complainant. The accused has also denied the service of notice on him.
12. In addition to the total denial of the case of the complainant, it is found to be a specific defence of the accused that the accused started food unit at Brigade Tech 9 C.C. No.53989/2017 Park in the year 2014 and at that time he was in need of money and as such he took Rs.2 lakhs from the uncle of the complainant by name Krishnappa through complainant for interest. He had paid interest for a period of one year. Since he had sustained loss in the said business, he could not repay Rs.2 lakhs and further interest thereon. When the things stood thus at the end of May 2015, the complainant, brother-in-law of the complainant, Krishnappa and two other persons came near to the house of the accused and asked for repayment of the amount. Since the accused was not having amount at that time he sought for time till July 2015. Since he could not repay the said amount in the month of July 2015 also, again the complainant, his brother Gururaj and his brother-in-law Raju came near the office of the accused and they themselves calculated the due amount and demanded cheque for Rs.4,26,500/-. As per their demand, the accused had issued cheque in question for Rs.4,26,500/- without filling the date and name. Thereafter 15 - 20 days, they again sought for one more cheque for the same amount as the cheque given earlier was invalid. Accordingly the accused had issued another cheque for Rs.4,26,500/- without filling the date and name. The complainant had presented the said cheque for encashment and got the amount on 09.09.2015 itself. The complainant had not returned the earlier cheque issued to him and the 10 C.C. No.53989/2017 accused also had not sought for returning of the said cheque in good faith and trust. Now by misusing the said cheque, the complainant has filed this complaint though there was no any due in his favour and accordingly prayed for his acquittal to meet the ends of justice.
13. Relying on the oral and documentary evidence, the learned counsels for respective parties vehemently argued as to the contention of the parties. 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 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 11 C.C. No.53989/2017 "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 recently the Hon'ble Apex court in Crl. A. No.803/2018 - (Krishna Rao Vs Shankare Gowda) reiterated the above principle. Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheques in question were issued for consideration on the date found therein.
14. In the light of the rival contention of the parties, at the out set it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. In order to prove the case of the complainant, the complainant being CW.1 reiterated the complaint averments in his sworn statement by way of affidavit which itself is treated as examination-in-chief in view of the decision of the Hon'ble Apex Court reported in (2014) 5 SCC 590 - Indian Bank Association and others Vs Union of India and others - [W.P. (civil) No.18/2013]. In addition to that, the complainant has produced cheque dtd.17.10.2016, 12 C.C. No.53989/2017 bank endorsement dated 18.10.2016, office copy of legal notice dated 05.11.2016, two postal receipts for having sent the notice by registered post to the two addresses of the accused and one postal acknowledgement for having service of the notice on the accused by RPAD as per Ex.P1 to P6 respectively to substantiate his contention.
15. As already stated it is admitted fact that Ex.P1 - cheque belonged to the accused and signed by him and the same was dishonoured for the reason "funds insufficient" as found in Ex.P2. The bank endorsement reveals that the complainant had presented Ex.P1 -cheque for encashment through HDFC Bank and the same was dishonoured for the reason "funds insufficient" on 18.10.2016 as put up by the complainant. The contents of Ex.P3 to P5 i.e office copy of the legal notice, postal receipts and postal acknowledgement are analyzed, it is clear that after dishonour of the cheque as found in Ex.P2, the complainant got issued legal notice on 05.11.2016 by registered post to the two addresses of the accused and notice sent to the first address is stated to be served on the accused on 07.11.2016 as found in Ex.P6. The complainant has not produced any document to show the service of notice on the accused on the second address. The learned counsel for the complainant relied on Ex.P6 as to service of notice on the accused. The complainant has filed the complaint on 22.12.2016. Therefore on going through 13 C.C. No.53989/2017 these documents as argued by the learned counsel for the complainant, it is clear that the complainant had presented the cheque within its validity and got issued statutory notice after dishonour of the cheque within statutory time and presented the complaint after lapse of 15 days from the date of service of notice on the accused and within 30 days thereafter as required under law. Therefore these documents are analyzed, they prima facie disclose as to compliance of requirements of Sec.138 of N.I. Act in filing the present complaint. Added to that, the complainant in his evidence specifically stated as to compliance of requirements of Sec.138 of N.I. Act in filing the present complaint.
16. Be the things as it may, as already stated the accused has specifically disputed service of notice on him and thereby compliance of requirements of Sec.138 of N.I. Act by the complainant contending that though the complainant was having knowledge of the correct address of the accused, sent the notice to the address where the notice will not be served on the accused and the signature found in Ex.P6 is also not that of the accused. In this regard if the evidence on record is analyzed, as argued by the learned counsel for the complainant, the accused has admitted that he was running Annaporni Juice Centre at Netra Teck Park, Kundanahalli Village and at Maruthi Industrial Estate, Hoodi Village and the notice was sent to the said addresses. But in this regard it is 14 C.C. No.53989/2017 pertinent to note that as argued by the learned counsel for the accused, on going through the cross-examination of the complainant himself, it is clear that the complainant was very well aware of the official address of the accused and even the accused had given I.D card containing the address of the accused. During the course of cross-examination, the accused has specifically stated that "DgÉÆæAiÀÄ PÀbÉÃjAiÀÄ «¼Á¸ÀªÁzÀ £ÀA.44, ºÀÆr UÁqïð£ï, ¯ÉÃmï ºÉZï.JA.gÁªÀÄAiÀÄågÉrØ ¯ÉÃMËmï, wUÀ¼ÀgÀ¥Á¼Àå ªÉÄãï gÉÆÃqÀÄ, ªÀĺÀzÉêÀ¥ÀÅgÀ CAZÉ, ¨ÉAUÀ¼ÀÆgÀÄ £À£ÀUÉ w½¢gÀÄvÀÛzÉ JAzÀgÉ ¸ÁQë ºÉüÀÄvÁÛgÉ ¸ÀA¥ÀÇtð ¸ÀjAiÀiÁzÀ «¼Á¸À £À£ÀUÉ UÉÆwÛgÀ°®è JAzÀÄ. £À£ÀUÉ DgÉÆæAiÀÄ AiÀÄÄn¹ KgÉÆøÉàøï PÀA¥À¤AiÀÄ «¼Á¸À ªÀiÁvÀæ ¸ÀjAiÀiÁV w½¢zÀÄÝzÀjAzÀ C°èUÉ ªÀiÁvÀæ £ÉÆÃn¸À£ÀÄß PÀ¼ÀÄ»¹zÉÝ. DgÉÆæAiÀÄÄ £À£ÀUÉ C£ÀߥÀÇuÉðñÀéj dÆå¸ï ¸ÉAlgï£À°è PÉ®¸À ªÀiÁqÀ®Ä £ÀA.44, ºÀÆr UÁqïð£ï, ¯ÉÃmï ºÉZï.JA.gÁªÀÄAiÀÄågÉrØ ¯ÉÃMËmï, wUÀ¼ÀgÀ¥Á¼Àå ªÉÄãï gÉÆÃqÀÄ, ªÀĺÀzÉêÀ¥ÀÅgÀ CAZÉ, ¨ÉAUÀ¼ÀÆgÀÄ «¼Á¸À EgÀĪÀ L.r. PÁqïð£ÀÄß PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸Àj." This version of the the complainant himself makes it very clear that the complainant was well aware of the official address of the accused. It is not understood why the complainant had not sent the notice to the said admitted known address of the accused. Further it is also noticed that the postal acknowledgment produced as per Ex.P6 reveals 15 C.C. No.53989/2017 that the registered notice was received by the Good Rich Airospace Service Ltd., and not by the accused. Admittedly the accused was not the employee of the said company. Just because, there was an agreement between Good Rich Airospace Service Ltd., and the accused and the accused was running Juice center in the premises of the said company, it does not mean that the notice was actually served on the accused himself. As already stated it is crystal clear that the accused having knowledge of the correct official address of the accused, had not opted to send the notice to the said address. Further the complainant has not produced any document before this court to show that notice sent to the second address was served on the accused. Therefore it is clear that the complainant, having knowledge of the correct address of the accused had not opted to send the notice to the said address, but the sent the notice to the different addresses.
17. Along with the above aspects, it is also noticed that this court was pleased to send summons to the accused on the same address as shown by the complainant, by RPAD and the summons sent to the 1st address was returned with a postal endorsement "no such person in the address" and summons sent to the 2nd address was returned as "left". Even NBW issued against the accused on the said address were returned unexecuted. Thereafter the complainant has 16 C.C. No.53989/2017 given separate address of the accused on 28.03.2018 and thereafter only the accused has voluntarily appeared before the court. This aspect also support the version of the accused and probabalize his defence in this regard. Therefore one cannot totally over rule the defence of the accused in this regard. Under these attending circumstances, this court is of the considered view that it cannot be held that the notice was sent to the correct address of the accused and thereby the complainant complied with the statutory requirement as contended.
18. On analyzing the contention of the complainant, it is clear that the complainant claims that the accused had come up with an idea of joint venture business in the name of Annaporni Juice Centre at Hoodi, Mahadevapura Post in the year 2012 and the complainant and accused had started juice center with an intention to supply it to Good Rich Company which is now called as "UTC AERO SPACE SYSTEM". This version of the complainant reveals that the complainant and accused started joint venture business in the year 2012. But the evidence of the complainant himself in this regard is analyzed, it goes against the above version of the complainant himself. During cross-examination the complainant has stated that " £Á£ÀÄ ªÉÆzÀ®Ä gÁªÀiï Qà ºÀ˸ï£À°è ©¯ï PÀ¯ÉPÀÖgï DV PÉ®¸À ªÀiÁqÀÄwÛzÉÝ. DgÉÆæAiÀÄÄ 17 C.C. No.53989/2017 2012 QÌAvÀ ªÉÆzÀ¯Éà C£ÀߥÀÇuÉðñÀéj dÆå¸ï ¸ÉAlgï£ÀÄß ¥ÁægÀA©ü¹zÀÄÝ 2012 gÀ°è £Á£ÀÄ CªÀgÉÆA¢UÉ ¸ÉÃjPÉÆArzÉÝ. DgÉÆæAÄÉÄà C£ÀߥÀÇuÉðñÀéj dÆå¸ï ¸ÉAlgï£À ªÀiÁ°ÃPÀgÁVzÀÝgÀÄ.
£Á£ÀÄ DgÉÆæAiÉÆA¢UÉ ©¹£É¸ï ¥Álð£Àgï DV ¸ÉÃjPÉÆAqÉ." The above version of the complainant himself reveals that the accused being the owner of Annaporni Juice Centre started the same prior to 2012 itself and thereafter the complainant joined with the accused in the year 2012 as business partner. Therefore this version of the accused totally falsifies the contention of the complainant as to starting of the joint venture business as put up by him.
19. At this juncture, it is also pertinent to note that the complainant claims that he joined with the accused as a business partner in the year 2012 and he had invested a sum of Rs.3,50,000/- for setting up the said juice center by purchasing two dosa tavas, two steel counters, three grinders, three juice mixtures, two electric stoves and other kitchen items. But it is interesting to note that absolutely there is no any piece of document to show that the complainant was joined with the accused as a business partner and there is no any documents to show that the complainant had invested any amount as contended by him. On the other hand the accused has specifically contended that the complainant had never come to him as business 18 C.C. No.53989/2017 partner, but he joined the Annaporni Juice Centre as an employee i.e as a supervisor at the instance of his uncle - Krishnappa. In this regard the accused has produced many number of the document as per Ex.D1 to D6 to substantiate his contention. It is pertinent to note that the accused has not opted to dispute Ex.D1 to D6. If the contents of Ex.D1 to D6 are analyzed meticulously, it is clear that the complainant had joined Annaporni Juice Centre as an employee only and not as business partner as contended by the complainant. It is also to be noted that the complainant has specifically contended that the accused used to pay the share of the complainant by issuing cheques one after other and also by way of cash. But absolutely no piece of document is produced by the complainant to show the payment of his share as contended by him. On the other hand the documents produced by the accused reveals that the complainant was paid with monthly salary only. At this juncture, it is also pertinent to note that during the course of cross-examination, the complainant has specifically denied the suggestion put to him denying his position as business partner in Annaporni juice center. But during cross- examination he has specifically stated that "¸ÀzÀj C£ÀߥÀÇuÉðñÀéj dÆå¸ï ¸ÉAlgï£À°è ¥Álð£Àgï DV vÉUÉzÀÄPÉƼÀî®Ä CªÀPÁ±À E®è¢zÀiÝzÀjAzÀ £À£ÀߣÀÄß PÉ®¸ÀUÁgÀ£À£ÁßV PÁtô¹gÀ§ºÀÄzÀÄ JAzÀÄ." This version of the complainant 19 C.C. No.53989/2017 himself reveals that there was no chance to take the complainant as business partner to the accused in Annaporni Juice Centre and thereby the status of the complainant was shown as an employee. It is needless to say that when there was no chance for joining the complainant as business partner to his own knowledge, then the contention of the complainant that he joined with the accused as a business partner in Annaporni Juice Centre and he invested the amount cannot be accepted to any extent of imagination. It appears that the complainant has come up with false contention by suppressing the real fact for the reason best known to him.
20. It is the specific contention of the complainant that he had invested a sum of Rs.3,50,000/- for setting up the Annaporni Juice Centre and left out the business in the month of July 2015 and when the complainant insisted for full and final settlement, the accused had issued cheque for outstanding balance and kitchen equipment and materials purchased by him were remained with the accused for which the accused promised to make payment in short span of time. On the other hand the accused has denied the above contention of the complainant contending that he had taken hand loan of Rs.2 lakhs from the uncle of the complainant for interest through complainant and towards payment of the said amount with interest, for payment of nine months 20 C.C. No.53989/2017 salary of the complainant and for payment of Rs.4,780/- spent by the complainant for the ink pad and attendance book issued cheque for Rs.4,26,500/- as calculated by the complainant himself. It is admitted fact that the accused had taken Rs.2 lakhs from the uncle of the complainant. On going through the evidence on record, it is clear that the accused had issued cheque for Rs.4,26,500/- in favour of the complainant and the said cheque was honoured and the complainant had received a sum of Rs.4,26,500/- on 09.09.2017. This fact is also found from Ex.D13 - statement of the account of the accused. From the contents of Ex.D13, it is clear that the complainant had received Rs.4,26,500/- through cheque bearing No.33672 from the account of the accused. The complainant has also admitted the receipt of the said amount and in that regard there is no dispute.
21. With the above aspects, now the averments made in the in the legal notice or in the complaint or in the examination-in-chief of the complainant are analyzed, nowhere the complainant has stated as to receiving of Rs.4,26,500/- from the accused. It is pertinent to note that after admitting the receipt of Rs.4,26,500/- from the accused during cross-examination, the complainant has come up with a new story contending that the accused was liable to pay total amount of Rs.8,53,000/- and add and by 21 C.C. No.53989/2017 dividing the said amount the accused had issued two cheques for Rs.4,26,500/- each and out of which, one cheque was honoured and another cheque was not encashed. This is the total new theory put up by the complainant after giving fatal admission as to receiving of Rs.4,26,500/- from the accused. Nowhere the complainant claimed for due amount of Rs.8,53,000/- and add from the accused. The contents of the legal notice and complaint are analyzed, it is clear that the complainant claims that the accused had issued cheque for Rs.4,26,500/- towards payment of outstanding balance. Therefore, it is crystal clear that the complainant had received Rs.4,26,500/- from the accused and now he is trying to put up some contention contrary to his own contention so as to suit his claim.
22. With the above aspects, it is also noticed that the complainant nowhere stated as to when exactly the accused had issued cheque in question in his favour except stating that the accused had issued cheque bearing No.033671 dated 17.10.2016 for Rs.4,26,500/-. However during cross- examination he has stated that "£Á£ÀÄ 2015 gÀ dįÉå£À°è DgÉÆæAiÉÆA¢UÉ C£ÀߥÀÇuÉðñÀéj dÆå¸ï ¸ÉAlgï£À°è ªÀiÁqÀÄwÛzÀÝ PÉ®¸ÀªÀ£ÀÄß ©nÖzÉÝ. DgÉÆæAiÀÄÄ £À£ÀUÉ §gÀ¨ÉÃPÁVzÀÝ ºÀtªÀ£ÀÄß ¥ÁªÀw¸ÀiªÀ PÀÄjvÀÄ dįÉå 2015 gÀ°èAiÉÄà £À£ÀUÉ F ¥ÀæPÀgÀtzÀ°è ºÁdgÀÄ¥Àr¹zÀ ZÉPÀÌ£ÀÄß PÉÆnÖzÀÝgÀÄ. DgÉÆæAiÉÄà ZÉPÀÌ£ÀÄß §gÉzÀÄ 22 C.C. No.53989/2017 ¢£ÁAPÀ 17-10-2016 gÀ ¢£ÁAPÀªÀ£ÀÄß £ÀªÀÄÆ¢¹ £À£ÀUÉ ZÉPÀÌ£ÀÄß PÉÆnÖzÀÝgÀÄ. " This version of the complainant reveals that the accused had issued Ex.P1-cheque in the month of July 2015 itself. But the complainant nowhere stated as to issuance of post dated cheque as stated above in the legal notice, complaint or in the evidence except for the first time during cross-examination. At this stage, it is pertinent to note that cheque bearing No.33672 for Rs.4,26,500/- was already encashed by the complainant on 09.09.2015 itself. This being the fact, once again it is crystal clear that the complainant has come up with false contention. It is also to be noted that nowhere the complainant has come up with the case of issuance of two cheques by the accused in his favour towards payment of due amount. Admittedly the cheque involved in this case is bearing No.033671 for Rs.4,26,500/- and whereas the very next cheque bearing No.33672 for the same amount was encashed by the complainant himself. Further it is also noticed from the contents of Ex.P1-cheque that, the name of the complainant, date of the cheque are in one ink and other handwritings are in the different ink. Under these attending circumstances, the contention of the accused is found to be more probable and more convincing as against the claim of the complainant. In the light of existing evidence one cannot rule out the misuse of the cheque by the complainant in 23 C.C. No.53989/2017 filing the present complaint as put up by the accused. As already discussed in detail, the evidence on record makes it very clear that the complainant has suppressed the real fact to his own knowledge and come up with certain facts so as to suit his claim. It clearly appears that the complainant has not approached the court with clean hand and true facts. On meticulous analysation of the evidence on record, it is clear that the defence of the accused is more probable and one cannot rule out the defence of the accused as put up by him.
23. Thus for the reason discussed above, this court is of the considered view that though the complainant is entitled for presumptions U/s.139 and 118 of N.I. Act, the same are found to be rebutted by the accused by placing convincing probable defence. As already discussed the complainant has totally failed to show that he was a partner of Annaporni Juice Centre along with the accused and also the investment made as put up by him. Further as discussed, it is found that the complainant has suppressed the real fact and not come up with clean hand and true facts and the case of the complainant is found to be totally surrounded with total suspicion. Under these attending circumstances, it is very difficult to accept the case of the complainant only on the basis of the presumptions. Further the compliance of statutory requirements of issuance of statutory notice by the complainant is also found to be not 24 C.C. No.53989/2017 properly complied. When the case of the complainant gets suspicion, the benefit of which goes to the accused. As already analyzed, the defence put up by the accused is found to be more probable and the defence of the accused cannot be totally brushed aside. In the relied ruling of our Hon'ble High Court reported in 2013 (1) DCR 326 - (Nandini Agro Fertilizers Vs D. Satish) it was held that "If there are circumstances to prove the probable defence, that itself is sufficient to dismiss the complaint". Further on going through the another relied ruling i.e LAWS (KAR) 2010 - 152 along with the facts of the present case, this court found that the said decision also comes to the aid of the accused under the peculiar circumstances in the present case in hand as to non-production of any documents by the complainant to support his contention. Hence considering all these aspects, this court is of the considered view that the case of the complainant is totally surrounded with suspicion and has not come to the court with clean hand. Therefore the complainant has failed to prove the commission of the offence punishable U/s.138 of N.I. Act as against the accused and so also issuance of cheque in question towards discharge of whole or any part of debt/liability as put up by him. Therefore, Point Nos.1 and 2 are required to be answered in negative. It is needless to say that when the complainant has failed to prove Point Nos.1 & 2 in his favour 25 C.C. No.53989/2017 as contended, it goes without saying that he 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.
24. Point No.4: For the reasons discussed in connection with Point Nos.1 & 2 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 accused stands cancelled. The cash security is deposited by the accused is ordered to be refunded in his favour in accordance with law.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 3rd day of September, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 26 C.C. No.53989/2017 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. B.S. Rajesh
Witnesses examined for the defence:
DW.1 : Sri. Ramesh K.P
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P2 : Bank endorsement
Ex.P3 : Legal Notice
Ex.P4 & P5 : Postal receipts
Ex.P6 : Postal acknowledgement
Documents marked for the defence:
Ex.D1 : Resume
Ex.D2 : Appointment Order
Ex.D3 : Temporary Identity Certificate
Ex.D4 : Pay slip
Ex.D5 : Payment of Gratuity Form
Ex.D6 : Form -T
Ex.D7 : PF register
Ex.D8 : Registration Certificate
Ex.D9 : Form VAT 7
Ex.D10 : Trade Licence Certificate
Ex.D11 : Service Agreement
Ex.D12 : Master Terms Agreement
Ex.D13 : Statement of account
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU