Bangalore District Court
M/S.Rajesh Exports Ltd vs Mr.V.A.Hamjad Ali on 18 July, 2018
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this the 18th 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. 20681/2015
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: Mr.V.A.Hamjad Ali
S/o.late Sri V.K.Ammu
aged 46 years
R/at.No.412, 5th cross
HRBR II Block,Kalyan Nagar
Bangalore 43.
(By Sri Rathnakar - Advocate )
Offence complained of: U/s. 138 of Negotiable Instruments
Act.
Plea of accused: Pleaded not guilty.
Final Order: Accused is Acquitted.
Date of order: 18.7.2018.
2 C.C.No. 20681/2015
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.B.G.Mallikarjun. The
complainant submits that M/s.Ambit Estate and
Properties are due to he complainant company for a
sum of Rs.3,30,00,000/- . The accused undertook to
repay the debt/liability of M/s.Ambit Estate and
Properties due to the complainant and accordingly
had provided a declaration and issued a cheque
bearing No.097320 dt.25.6.2015 for Rs.3,30,00,000/-
in favour of the complainant company drawn on
Federal Bank, Residency Road, Bangalore.
3 C.C.No. 20681/2015
3. The complainant further submits that as per
the promise and assurance given by the accused
person the cheque mentioned above was presented for
encashment through the banker of the complainant
and upon presentation, the said cheque returned
with endorsement "Funds Insufficient" on 30.6.2015.
The complainant further submits that the cheque in
question has been issued by the accused in
discharge of the liability . The accused had impressed
upon the complainant that the cheque on being
presented would be honored. But, has failed to keep
up his promise.
4. The complainant further submits that
consequently, the complainant had issued legal notice
dt.4.7.2015 to the accused for the payment of
outstanding due amount and the demand notice was
delivered on the accused on 6.7.2015 . But he has
replied with untenable defence. The complainant
further submits that all the ingredients of Sec.138 of
the Negotiable Instrument Act are attracted in the
4 C.C.No. 20681/2015
present case. The cause of action arose for dishonor of
the present cheque and the offence committed
u/s.138 Negotiable Instrument Act for which the
accused is liable to be convicted and the complainant
is entitled for compensation. Hence, prayed to allow
the complaint.
5. The complainant has lead his pre
summoning evidence on 17.8.2015 .and has filed his
affidavit in lieu of Sworn Statement. Prima-facie a
case has been made out against the accused and he
has been summoned vide order of this court.
6. The accused appeared before this court on
30.4.2016. 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.
7. 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.
8. In support of the case, the complainant has
produced the documents marked at Ex.P.1 to Ex.P.7
Ex.P.1 is Certificate of Incorporation .Ex.P.2 is the
Board Resolution. Ex.P.3 is the Declaration. Ex.P.4 is
5 C.C.No. 20681/2015
the cheque in question bearing No.097320 dt.25.6.15
of Federal bank for Rs.3,30,00,000/- Ex.P.5 is the
cheque return memo. Ex.P.6 is the legal notice .
Ex.P.6 (a) is the postal receipt. P.6(b) is the postal
acknowledgement. Ex.P.7 is the reply notice. Ex.P7(a)
is the envelope.
9. 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.D14 wherein Ex.D.1 is the Certified copy of the
complaint filed u/s.200 Cr.P.C in CC No.20680/15 by
the complainant against M/s.Ambit Estate and
Properties, the present accused Sri V.A.Hamjad Ali
and Smt Sapna Hamjad. Ex.D.2 is the Certified copy
of the Examination-in-chief affidavit filed in
CC.No.20680/15. Ex.D.3 is the Certified copy of the
agreement. Ex.D.4 is the Certified copy of notice
dt.4.7.15. ExD.5 is the Certified copy of the
declaration. Ex.D.6 is the Certified copy of the cheque
bearing No. 144779. Ex.D.7 to Ex.D.12 are the E-mail
communication. Ex.D.13 & Ex.D.14 are certified
copies of the Registered Mortgage Deed.
6 C.C.No. 20681/2015
10. Both the sides have canvassed there
respective arguments before this court.
11. 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.
12. 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
13 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 . Complainant company is represented by
its authorized officer Mr.B.G.Mallikarjun. The
complainant submits that M/s.Ambit Estate and
Properties are due to he complainant company for a
7 C.C.No. 20681/2015
sum of Rs.3,30,00,000/- . The accused undertook to
repay the debt/liability of M/s.Ambit Estate and
Properties due to the complainant and accordingly
had provided a declaration and issued a cheque
bearing No.097320 dt.25.6.2015 for Rs.3,30,00,000/-
in favour of the complainant company drawn on
Federal Bank, Residency Road, Bangalore.
14. The complainant further submits that as
per the promise and assurance given by the accused
person the cheque mentioned above was presented for
encashment through the banker of the complainant
and upon presentation, the said cheque returned
with endorsement "Funds Insufficient" on 30.6.2015.
The complainant further submits that the cheque in
question has been issued by the accused in
discharge of the liability . The accused had impressed
upon the complainant that the cheque on being
presented would be honored. But, has failed to keep
up his promise.
15. The complainant further submits that
consequently, the complainant had issued legal notice
dt.4.7.2015 to the accused for the payment of
outstanding due amount and the demand notice was
8 C.C.No. 20681/2015
delivered on the accused on 6.7.2015 . But he has
replied with untenable defence. The complainant
further submits that all the ingredients of Sec.138 of
the Negotiable Instrument Act are attracted in the
present case. The cause of action arose for dishonor of
the present cheque and the offence committed
u/s.138 Negotiable Instrument Act for which the
accused is liable to be convicted and the complainant
is entitled for compensation.
16. On the other hand, it is the defence of the
accused that a false case is filed against himself and
his wife Sapna Hamjad. The complainant have filed
another case against the accused and his wife in
connection of dishonor of the cheque bearing
No.144779 dt.19.6.2015 for Rs.3,30,00,000/- drawn
by himself and his wife Sapna Hamjad who are
accused no.2 and 3 in the said case. Said cheque is
drawn on the account of M/s.Ambit Estate and
Properties drawn on Fedaral bank and the same is
registered as CC.NO.20680/15.
17. It is further stated by the accused that the 2
cases namely CC NO.20680/15 and the present case
are in relation to one and the same transaction,
9 C.C.No. 20681/2015
namely a franchise agreement dt.14.10.2011 entered
into between the complainant M/S. Rajesh Export
Ltd referred to as the company engaged in the
business of jewellery and other products and
M/s.Ambit Estate and Properties a partnership firm
represented by its partners V.A.Hamjad Ali and Sapna
Hamjad as parties under which Rajesh Export Ltd,
which is the owner of trade by name Shubh Jewellers
has agreed to appoint M/s.Ambit Estate and
Properties as franchise for sale of gold ornaments
supplied by M/S. Rajesh Export Ltd., to M/s.Ambit
Estate and Properties on the terms and conditions
stated therein. That on very date of execution of the
agreement, 3 declaration were signed by the parties
and delivered to the complainant M/s.Rajesh Export
namely : (1) 1st declaration is of M/s.Ambit Estate and
Properties by its 2 partners Sri V.A.Hamjad Ali and
Sapna Hamjad dt.14.10.2011 declaring confirming
and accepting that M/s.Ambit Estate and Properties
issued 13 kgs of gold jewellery of 22 carat purity from
M/s.Rajesh Export ltd., which is valued for
Rs.3,30,00,000/- and they have issued post dated
cheque favouring Rajesh Export Ltd., bearing
10 C.C.No. 20681/2015
No.144779 on Federal bank for Rs.3,30,00,000/-on
account maintained by M/s.Ambit Estate and
Properties duly signed by its partners Sri V.A Hamjad
Ali and Sapna Hamjad and further declaring that the
said cheque issued against the discharge of the
liability /debt towards the complainant. Further
declaring that in the event of non realization of the
said cheque, the complainant would be at liberty to
initiate legal proceedings against the accused company
and its partners.
18. It is further contended by the accused that
the declaration to the similar effect by individual
Sri.V.A.Hamjad Ali and late Sri V K Ammu to the effect
of declaring, confirming and accepting receipt of 30 kg
of gold jewellery of 22 carat purity from the
complainant which is valued at Rs.3,30,00,000/-
from the account of Sri V.A.Hamjad Ali favouring the
complainant. Further undertaking to honor the said
cheque on presentation and on its non realization,
the complainant would be at liberty to initiate legal
proceedings against the declarant by issuance of
demand notice etc.
11 C.C.No. 20681/2015
19. Similarly, yet another declaration of similar
terms was executed by SMT.Sapna Hamjad and a
cheque of Rs.3,30,00,000/- which is undated was also
obtained. IN all the complainant has obtained 3
undated cheques which are mentioned as post dated
cheques in the agreement as well as in the declaration.
The cheque bearing No.144779 drawn on the account
of M/s.Ambit Estate and Properties signed by its
authorized signatory namely V.A.Hamjad Ali and
Sapna Hamjad for Rs.3,30,00,000/- the said cheque
is undated one.
20 . The cheque bearing No.097320 drawn on
the account of Hamjad Ali on Federal Bank for
Rs.3,30,00,000/- and a cheque bearing No.97219
drawn from the account of SMT.Sapna Hamjad on
Federal Bank for Rs.3,30,00,000/- apart from
execution of the agreement and the above mentioned 3
declaration, and issuance of 3 cheques of the same
value from the account of M/s.Ambit Estate and
Properties one from the personal account of
Sri.V.A.Hamjad Ali and Smt Sapna Hamjad the
complainant obtained 2 mortgage deeds .
12 C.C.No. 20681/2015
21. Mortgage Deed dt. 14.10.2011 (date of the
agreement ) executed by the accused in favour of the
complainant. The Mortgage property bearing No.5C-
412 HRBR in block no.2 Bangalore site measuring
12.20 mts east to west and 12 + 14.30/2 mts north to
south. In all measuring 150.43 sq mts or 1727 sq ft
along with building standing there on which is owned
by Sri.V.A.Hamjad ALi the present accused and the
said mortgage is also singed by M/s.Ambit Estate
and Properties and its partners V.A.Hamjad Ali and
Smt Sapna Hamjad as consenting witnesses . The
said document is registered as number 6222/11-12
for Rs.80,00,000/- in the office of the sub registrar
Banasvadi , Bangalore.
22. The mortgage deed dt.14.11.2011 executed
by M/s.Ambit Estate and Properties firm represented
by its partners V.A.Hamjad Ali AND Sapna Hamjad ,
in favour of the complainant. Mortgaging commercial
property bearing Municipal no.4AC-403 2nd block
HRBR layout Bangalore measuring East West 12.20
mts North South measuring 18.20 to 18.90/2 mts in
all 226.31 sq mts or 2400 sq ft along with the building
constructed thereon for Rs.2,50,00,000/- which is
13 C.C.No. 20681/2015
attested by Ms.Kajal Hamjad and Riya Hamjad both
represented by their Natural Guardian Sri
VA.Hamjad Ali as consenting witnessess and the said
document is registered under Reg.No.6219/11 -12 in
the office of the Subscriber-Registrar, Banaswadi,
Bangalore. After execution of the said document, the
complainant in the name of Shubh Jewellers delivered
13 kgs of gold jewellery which were preserved in the
show room made in the commercial property bearing
No.403 4th A cross, HRBR 2nd block, Kalyannagar,
Bangalore and the proceeds of the sale paid to the
complainant by remittance to bank account and
periodical inspection done by the auditors of the
complainant and that the quantity of the jewellery
equivalent to the jewellery sold being substituted from
time to time so as to keep good stock of 13 kgs of gold
jewel at all point of time. There were periodical
communications orally and through Emails between
the parties.
23. It is further defence that when that being
the state of affairs abruptly without prior intimation
,the complainant has filled up the date in the cheque
bearing No.144779 drawn from the account of
14 C.C.No. 20681/2015
M/s.Ambit Estate and Properties on 19.6.2015 and
presented the same for encashment which was
returned dishnored for the reason "Funds
Insufficient", and thereon the complainant got
issued notice dt.4.7.2015 to M/s.Ambit Estate and
Properties, Mr.Hamjaj Ali , the partner of M/s.Ambit
Estate and Properties and to Smt Sapna Hamjad
another partner of the said company stating therein
that the addressee issued the cheque bearing
No.144779 dt.19.6.15 for Rs.3,30,00,000/- drawn on
Federal bank towards discharge of debt/liability and
the said cheque was signed by Sri V.A Hamjad Ali and
Smt.Sapna Hamjad, who are the authorized
signatories of M/s.Ambit Estate and Properties,
accused No.1. The said cheque when presented for
encashment returned with endorsement "Funds
Insufficient", vide memo dt.23.6.15. By issuing legal
notice, the complainant has called upon the accused
to pay the cheque amount within 15 days from the
date of receipt of the notice.
24. It is further defence of the accused that
similarly, they have presented the cheque bearing No.
97320 for Rs.3,30,00,000/- drawn from the personal
15 C.C.No. 20681/2015
account of Hamjad Ali which also returned with
reason "Funds Insufficient", vide memo dt. 30.6.2015.
Accordingly legal notice is issued dt.4.7.15 to the
present accused no.2 V.A.Hamjad Ali.
25. Both the demand notices replied by the
accused commonly on 10.7.15 , wherein it is
specifically stated by the accused that the cheque in
question in respect of the demand notices were
issued in the blank without putting the dates therein
as a guaranty under the documents issued and the
drawers of the cheques were not due the amount
covered by the cheques as 13 kgs of gold jewellery
which were supplied were intact and it is only on the
sale of said quantum of gold jewellery and not
remitting the sale proceeds, the complainant would be
entitled to present the cheques after due intimation
and the complainant has misused the cheques
entrusted in the trust as security by putting the dates
therein and presented them for encashment.
26. Thereupon the complainant has filed 2
complaints one in respect of cheque bearing
No..144779 against M/s.Ambit Estate and Properties,
and its partner and another case is filed in respect of
16 C.C.No. 20681/2015
the cheque bearing No. 97320 against Sri V.A.Hamjad
Ali.
27. It is further stated by the accused that, they
approached the complainant for financial, assistance
against the security of the commercial property
bearing NO.403 4th A cross, HRBR 2nd , Kalyan
Nagar, Bangalore which is built on site measuring
2400 sq ft and commercial built up area of 5000 sq ft
owned by M/s.Ambit Estate and Properties
partnership firm of which the accused and his wife
Smt. Sapna Hamjad and his 2 minor daughters are
the partners. The complainant instead of lending
financial assistance prevailed upon the accused to
take franchise of Shubh Jewellery owned by the
complainant company against adequate security and
succeeded in making the accused agree to the
proposal on the representation that the accused will
fetch substantial profit. The accused was asked to
mortgage the commercial property as well as
residential property towards security and also issue
undated guaranty cheques not of the firm but the
individual namely the accused and his wife under 3
separate declaration and both of accused and his wife
17 C.C.No. 20681/2015
entering into franchise agreement on behalf of
M/s.Ambit Estate and Properties the accused was also
asked to make a show room in the commercial
property for display and sale of gold jewellery of the
specification given by the complainant company. The
accused invested substantial amount for showroom as
per the specification of the complainant for exhibition
of gold ornaments and for its sale.
28. On 14.10.2011, the complainant obtained 2
mortgage deeds done in respect of the commercial
property of the consideration of Rs.2,50,00,000/-.
Apart from obtaining mortgage deeds, the accused
and his wife were made to sign the franchise
agreement and 3 declarations, one of them jointly
executed by the accused and his wife on behalf of
M/s.Ambit Estate and Properties .One of the Mortgage
deed is in the name of the accused in individual
capacity and another in the name of his wife under
which they have acknowledged having received gold
jewellery weighing 13 kgs of 22 carat of the value of
Rs.3,30,00,000/- and to ensure payment towards
security 3 cheques were issued . One of them drawn
from the account of M/s.Ambit Estate and Properties
18 C.C.No. 20681/2015
bearing No.144779 drawn on Federal Bank
Residency Road. Bangalore for Rs.3,30,00,000/- and
another cheque bearing No.97320 drawn from the
account of the accused drawn on Federal Bank
Bangalore for Rs.3,30,00,000/- which is also undated
and cheque bearing No.97219 drawn from the account
of wife of the accused Smt.Sapna Hamjad, drawn on
Federal Bank , Bangalore for Rs.3,30,000,000/- all
drawn in favour of the complainant were issued.
29. It is further contended by the accused that,
against execution of the aforesaid documents, 13 kgs
gold jewellery of 22 carat supplied to the accused and
the said show room opened in their commercial
building and started sale of gold ornaments supplied
by the complainant . The accused has maintained the
books of account of the transaction and the gold stock
register for being periodically inspected and certified
by the company auditors under the franchise
agreement. As per the terms of the franchise
agreement, the accused was paying sale proceeds to
the complainant company by depositing in its bank
account. The short fall of the stock on account of sale
was being filled up to make good the stock of 13 kgs
19 C.C.No. 20681/2015
at all the time. The publicity was to be done by the
complainant company. Abruptly, the complainant
stopped the publicity and there was income tax and
DRI raids in the office of the complainant at Kochi,
followed by Bangalore and the complainant
instructed the accused not to deposit the sale proceeds
of the jewellery to its account. The complainant has
several franchise in Bangalore similar to the franchise
given to the accused from September, 2014. The
auditors stopped visiting the shops and the accused
requested the complainant to cancel the franchise
agreement and take back the stock of gold jewel and
to settle account. There were several email
communications on this aspect.
30. Abruptly without any prior intimation, the
complainant has filled the dates on two cheques one
of the cheque issued on account of M/s.Ambit Estate
and Properties and another cheque issued from the
personal account of the accused presented one after
the other for encashment and after dishonor of the
said cheques, issued notices to the accused . The
accused has sent common reply to both the demand
notices. After sending the reply the accused called
20 C.C.No. 20681/2015
upon the complainant to confirm the outstanding
payable by the accused through his email
communication. The complainant has sent a reply
through email dt.3.8.2015 stating therein that as on
31.7.2015, the balance outstanding is of
Rs.38,15,027/-and the accused was called upon to
clear the said outstanding. The accused issued 4
cheques from the account of M/s.Ambit Estate and
Properties in favour of the complainant each for
Rs.5,00,000/- . The complainant have encashed 2 of
those cheques on 15.10.15 and on 21.10.15 . The
bank account of M/s.Ambit Estate and Properties
evidences such payment. Thereafter, the complainant
did not present the remaining cheques in response to
the accused request message. The complainant has
sent Email dt.10.8.16 stating therein the balance
outstanding as on 9.8.16 is Rs.28,15,027/- .
31. Neither the firm M/s.Ambit Estate and
Properties nor the accused and his wife are due to
the complainant to the extent of the amount covered
under the cheque. The complainant is still the holder
the cheque bearing no.97219 drawn from the
account of the wife of the accused Sapna Hamjad for
21 C.C.No. 20681/2015
amount of Rs.3,30,00,000/- out of 3 cheques the
complainant have misused the 2 cheques belonging
to the accused and his firm. It is only upon his
selling the entire stock of 30 kgs of gold jewel and not
crediting the sale proceeds to the account of the
complainant company, the complainant company
would be entitled to present any one of the 2 cheques
by putting the date , after due intimation and not
more than one cheque even in that contingency .
Even according to the statement of the complainant ,
as on 31.7.2015, the due amount is Rs.38,15,027/-
Thus , there is no justification on the part of the
complainant to have filled the dates and the cheque
and presented the same one after the other for
encashment and issuing demand notice. Thus, on all
these, grounds the accused prays to dismiss the
complaint. with cost.
32. In this back ground this court has carefully
gone through, the oral and the documentary evidence
produce by the complainant and the accused in
support of their case. The complainant has examined
one Mr.Mallikarjun B. G. the representative of the
complainant company as PW 1. Upon careful
22 C.C.No. 20681/2015
perusal of the cross examination of PW 1, it is found
that pw1 has admitted in his cross examination
pertaining to pendency of CC no.20680/15 before this
court. He has also admitted that wife of the accused
Sapna Hamjad being the co accused in the said case.
PW 1 has also admitted the cheque amount in both
the cases i.e present case and CC no.20680/15 are
one and the same. The Certified copies of the
documents in Cc no.20680/15 is confronted to PW 1
which are marked at Ex.D.1 to Ex.D.14.
33. In the entire case of the complainant , the
most important and the relevant document is Ex.P.3
which is a Declaration issued by the accused V.A.
Hamjad Ali in favour of the complainant on and
behalf of M/s.Ambit Estate and Properties that the
accused has received 13 kgs of gold jewellery of 22
carat purity from the complainant company, and the
same is valued at Rs.3,30,00,000/- In the very same
declaration at Para No.6 the accused has confirmed
that in discharge of the debt/liability, the accused has
issued a post dated cheque favouring the complainant
company bearing No.97320 drawn on Federal Bank
for Rs.3,30,00,000/-on an account maintained by the
23 C.C.No. 20681/2015
accused with Federal Bank, Bangalore duly signed by
the accused and it is further declared that the said
cheque has been issued by the accused against the
discharge of the said liability /debt towards Rajesh
Export Ltd, and the aforesaid cheque has been issued
as a security. The cheque in question is nothing but
the cheque which has been issued by the accused
person in favour of the complainant company that is
bearing N.097320 drawn on federal bank for amount
of Rs.3,30,00,000/-. This cheque was issued by the
accused person by way of security .
34. Interestingly though it is stated that the
cheque has been issued and confirmed by the
accused person at para No.6 as post dated cheque,
but, the complainant has not mentioned as to what is
the post date of the said cheque. This aspect of the
matter clearly go to show that the cheque in question
was issued by the accused person by way of security
in the said transaction. It was not the cheque issued
by the accused person in discharge of the alleged debt
or liability.
35. On further perusal of the cross examination
of Pw1 it is found that commission amount was fixed
24 C.C.No. 20681/2015
for the sale of gold payable to the accused. The
accused were required to deposit the entire sale
consideration amount to the bank of complainant .
Admittedly, the transaction, is of the year 2011 and
the complainant have followed the same procedure as
stated in the transaction entered with the
complainant . As admitted by PW 1 himself there are
books of account, gold stock register pertaining to the
present transaction maintained by the accused person
and they are duly certified by the complainant
company auditors during their periodical inspection.
Those auditors have reported to the complainant
company about the same and if there was any defect
found in the sale transaction with regard to the sale
and stock it would have been definitely informed to
the complainant company in the concerned year. But,
till today, no such defect or lapse and procedure has
been notified or identified by the complainant
company auditors. This aspect of the matter makes
it clear that the accused was regular in paying the sale
proceeds to the complainant . Further the quantum of
gold sold was refilled every month to the required limit
of 30 kgs. If the accused person failed to deposit sale
25 C.C.No. 20681/2015
proceeds, the complainant company, would not have
refilled the quantum of gold sold out every month by
the accused person .
36. As agreed upon by the parties the
complainant had to make publicity for promotion of
the business of the accused person . But though PW 1
deposes before the court that they have made best
publicity of the business of the accused person but,
they have not produced any such document, or
material before the court to show that there was a due
publicity made by the complainant company with
regard to the business of the accused person . PW 1
has also admitted in cross examination that the
accused asked to cancel the franchise agreement .
But, PW 1 has failed to explain before the court as to
what was the reason for which the accused had asked
to cancel the franchise agreement. This point itself
probabalises the very defence of the accused person.
37. PW 1 has shown ignorance with regard to the
visit of the company auditors to the company
belonging to the accused person after September,
2014.
26 C.C.No. 20681/2015
38. As per the defence of the accused person he
has issued cheques of Rs.5,00,000/- each in the year
2015 in favour of the complainant towards the
payment. This aspect of the matter has been
admitted by Pw 1. Having admitted this aspect, PW 1
has shown his ignorance to the effect that the said 4
cheques have been encashed by the complainant.
The document , further goes to show that after
deducting Rs10,00,000/- issued by the accused
person under the said cheques mentioned above, the
complainant have issued Ex.D.12 confirming the
same to the accused person . If at all the accused had
not deposited the sale proceeds, the company auditors
would have definitely reported to the complainant
showing the shortage of mandatory limit of 13 kgs gold
to the company .
39. On further careful perusal of the documents
produced by the complainant it is crystal clear that
the accused in his reply notice marked at Ex.P7 has
called upon the complainant to verify the gold stock
by sending their representative. PW 1 has admitted
this aspect of the matter. But stated that after one
week of the reply they sent their representative to
27 C.C.No. 20681/2015
verity the same. But, the accused themselves got
postponed on the grounds of ill health of family
member. But no documents or any piece of evidence is
produced by the complainant in this regard. PW 1
admits that they have not asked the accused in writing
for not allowing the said verification.
40. It is the say of the complainant that the
total liable amount including this case and the
connected case payable by the accused is
Rs.3,30,00,000/-. But, the complainant nowhere
mentions about the receipt of Rs10,00,000/- from the
accused person by way of further cheques as per
Ex.D.12. This aspect of the matter clearly go to show
that under declaration- Ex.D.1, accused issued post
dated cheque in favour of the complainant by way of
security for having entered into transaction, and the
complainant has misused the said cheque issued
towards the security. By leading defence evidence
and producing the documents marked at Ex.D.1 to
Ex.D12, the accused has probabalized his defence .
The accused by producing Ex.D.12, which is an
email correspondence made by the complainant
company confirming that the cash balance of the
28 C.C.No. 20681/2015
accused as on 9.8.2016 is Rs.28,15,027/-, has
raised a reasonable doubt in the mind of the court
and has also rebutted the case of the complainant .
The complainant have not raised any objections at the
time of marking this document. Now, the reverse
burden is casted upon the complainant to take out
the said doubt from the mind of the court . But the
complainant have not made any efforts to remove the
said doubt from the mind of the court. Admittedly,
for the single transaction alleged to have been entered
by the complainant and the accused the complainant
have filed 2 different cases against the cheques
belonging to the accused and his wife for the same
amount. The accused person has produced Ex.D1
Certified copy of the complaint filed in CC
no.20680/15 marked at Ex.D.1 and Certified copy of
the deposition i.e the examination-in-chief affidavit
filed by the complainant marked at Ex.D.2 along with
cross examination, further clearly support the defence
of the accused person. The complainant have
absolutely not raised any objections at the time of
marking the document. Admittedly they are the
certified court documents which are necessarily to be
29 C.C.No. 20681/2015
taken into consideration in arriving at just conclusion
in the matter.
41. Since a reasonable doubt has been created
by the accused in this regard, it becomes a burden
on the part of the complainant to discharge it by
producing cogent and convincing material before this
court that there existed legally enforceable debt to the
extent of the amount mentioned in the cheque as on
the date of issuance of the cheque.
42. Further , the complainant in the present
case has nowhere stated that blank cheque has been
issued and thereafter they have filled the cheque for
Rs.3,30,00,000/- Therefore, it is very much incumbent
upon the complainant to show that as on the date of
issuance of the cheque the amount of
Rs.3,30,00,000/- was not known to the parties and
with an intention to fill up the said cheque, the
accused has given the blank cheque so as to enable
the complainant to fill up the said cheque in future
for the exact liability of the accused. But, such
elucidation of facts are not available in the present
case, Therefore, the court has to rely upon the
evidence adduced by the accused person. It is the case
30 C.C.No. 20681/2015
of the accused as stated supra that he has already
paid Rs.10,00,000/- by way of cheque to the
complainant and is regularly depositing the sale
proceeding amount to the complainant . For this
aspect of the matter, the auditors of the complainant
company are doing regular and periodical inspection
and reporting the same to the complainant company .
It is also the say of the accused that at the time of
executing the declaration , Ex.P.3, the complainant
has obtained a post dated cheque i.e the present
cheque in question for an amount of Rs,3,30,00,000/-
in their favour for the purpose of security. The
dispute which has to be exactly clarified before the
court is whether the accused person has regularly
depositing the sale proceeds of the gold and has paid
amount of Rs.10,00,000/- by way of further cheques.
Therefore, it is incumbent upon the complainant to
prove that as on the date of issuance of the cheque,
the outstanding liability of the accused was
Rs.3,30,00,000/- To prove the said fact, the
complainant has to produce the material before the
court . But, no other materials are available before the
court as to why amount of Rs.3,30,00,000/- came to
31 C.C.No. 20681/2015
be filled in the cheque in question despite, of payment
made by the accused person as admitted by PW 1 in
his cross examination. The documents produced by
the complainant themselves make it clear that the
cheque was obtained by the complainant at the time
of execution of Ex.P.3, the declaration wherein, the
cheque in question was mentioned as post dated
cheque for amount of Rs.3,30,00,000/-. If the
complainant failed to produce any material in this
regard to support his case, then , the particular
presumption of law comes to the favour of accused.
Therefore, looking to the above facts and
circumstances, of the case, a reasonable doubt has
been created by the accused with regard to filling up of
the said cheque for an amount of Rs.3,30,00,000/-.
Thus, the accused has created a reasonable doubt in
the mind of the court.
43. Therefore, in the light of the documents
produced by the accused person, specially, Ex.D.12,
which clearly go to show that the complainant
himself has confirmed the balance of the accused
person on 9.8.2016 to the extent Rs.28,15,027/- ,
has itself created a doubt about the existence of
32 C.C.No. 20681/2015
legally enforceable debt or other liability in favour of
the complainant to the extent of 3,30,00,000/- as on
the date of the cheque. The complainant has not
come forward to give any explanation with regard to
the cheque in question which is mentioned as post
dated cheque in the declaration form. No doubt the
accused has not disputed the issuance of the cheque
and the signature on the cheque. But , along with this
the accused has also raised reasonable doubt with
regard to the legally enforceable debt to the extent of
Rs,3,30,00,000/- in favour of the complainant against
the accused. Moreover, the complainant himself has
suggested to DW 1 in the cross examination that the
cheque in question was issued by him towards the
security of the 13 kgs gold obtained by way of
franchise agreement, for which DW1 has answered
that he had issued undated cheque in favour of the
complainant. Therefore, at this juncture it becomes
the burden of the complainant to prove that the
accused had not issued undated cheque, but, it was
the cheque duly dated towards the discharge of the
liability. But, no such material are forthcoming on
behalf of the complainant in this regard. Therefore,
33 C.C.No. 20681/2015
the reverse burden is shifted upon the complainant
to satisfy the court in this regard. But the
complainant has utterly failed to prove his case
beyond reasonable doubt. The case of the
complainant is full of material contradictions and
doubt. The complainant has absolutely failed to clear
those contradictions and doubts. The complainant
has not at all produced any cogent and convincing
material before this court in order to convict the
accused person . Accordingly I answer Point No.1 in
the Negative.
44.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 accused is hereby Acquitted of the offence punishable under Sec.138 Negotiable Instrument Act.
34 C.C.No. 20681/2015The 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 18th day of July , 2018).
( SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
PW1 : B.G.Mallikarjun.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Certificate of Incorporation. Ex.P.2 : Board Resolution.
Ex.P.3 : Declaration.
Ex.P.4 : Cheque.
Ex.P5 : Cheque return memo
Ex.P6 : Legal Notice.
Ex.P6(a) : Postal Receipt.
Ex.P6(b) : Postal acknowledgement.
Ex.P7 : Reply notice.
Ex.P7(a) : Envelope.
35 C.C.No. 20681/2015
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
DW1 : V.A.Hamjad Ali.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
Ex.D1 : CC of the complaint. Ex.D2 : CC of the examination-in-chief. Ex.D3 : CC of the agreement. Ex.D4 : CC of the notice. Ex.D5 : CC of the Declaration. Ex.D6 : CC of the cheque. Ex.D7-12 : E-mails.
Ex.D13&14: CC of the Registered Mortgage Deeds.
(SHIRIN JAVEED ANSARI) XXV A.C.M.M., BANGALORE.36 C.C.No. 20681/2015
18.7.2018 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 accused is 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.37 C.C.No. 20681/2015