Bangalore District Court
Uma Shankar vs Mr.Asgar Ali on 6 September, 2019
IN THE COURT OF THE XVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
PRESENT: MANJUNATHA.K.P, B.A.L, LL.B.
XVIII ADDL.C.M.M., BENGALURU
DATED : THIS THE 6th DAY OF SEPTEMBER 2019
C.C.NO: 636/2018
COMPLAINANT:- Uma Shankar
Aged about 40 years,
S/o Late Panduranga
R/at No.348, 17th Cross,
Ananda Nagar,
Kanshiramnagar,
Vidyaranyapura Post,
Bangalore-560 097.
(Repted by Shri.BR., Advocate)
V/s.
ACCUSED:- Mr.Asgar Ali
No.92, BTM 1st Stage,
V.P.Road, Madiwala,
Opp. Sandya Tent,
Bangalore-560 068.
(Repted by Sri.TMR, Advocate)
JUDGMENT
The complainant has presented the complaint under Section 200 of Cr.P.C against the accused for the alleged offence punishable under Section 138 of N.I. Act.
2) The brief facts of the complainant's case is that:- 2 C.C.NO:636/2018
In the month of February 2017, the complainant had purchased a car bearing No. KA-05-MN-0783 from accused for sale consideration of Rs.7,15,000/- and same had return back to the accused within twenty days for the technical reasons and the same day the accused was return the amount i.,e Rs.6 lakhs only and the accused has promised that he shall return the balance amount of Rs.1,15,000/-to the complainant within 4 months with interest. After several request and demand made byth e complainant to the accused towards repayment of due amount he has issued two cheques bearing No. 102983 for Rs.1,00,000/- dated 9/8/2017 and No. 102984 for Rs.15,000/- dated 10/8/2017 drawn on Axis Bank, BTM Layout, Bangalore. As per the accused instructions the complainant has presented the cheques for encashment, they were dishonored with an endorsement "payment stopped by drawer " on 10/8/2017 & 11/8/2017 and again presented the said cheque they also return same reasons on 4/10/2017. Thereafter the complainant issued legal notice on 19/10/2017 calling upon the accused to make payment of the dishonoured cheque amount and the said notice was duly served on the accused. In spite of service of notice, the accused has not complied the same. Hence, complainant is constrained to file this private complaint for the said relief.3 C.C.NO:636/2018
3) After receipt of complaint, this court has taken cognizance of the alleged offence and sworn statement of complainant was recorded and process was issued to the accused. He was appeared through his counsel and enlarged on bail and all papers were supplied to him. The substance of plea was recorded and read over and explained in Kannada language to the accused, to which he pleads not guilty and claims to be tried. Hence, posted the case for complainant evidence.
4) In order to prove the complainant case, complainant was examined as P.W.1 and he exhibited Ex.P.1 to Ex.P.13 documents and closed his side. Thereafter, the statement of accused under Section 313 of Cr.P.C is recorded, read over and explained in Kannada language to which accused has denied the entire incriminating evidence which appears against him. Per contra, accused examined as D.W.1 and he exhibited Ex.D.1 to 7 documents and thereafter posted the case for arguments.
5) Heard the arguments on both sides and perused the entire papers.
6) Now, the following points that arises for my consideration are:-
1) Whether the complainant has made out all the ingredients of Section 138 of N.I. Act to prove the guilt of the accused person?4 C.C.NO:636/2018
2) What order?
7) My answer to the above points are as follows:-
POINT NO.1 : In the Negative.
POINT NO.2 : As per final order, for the following:-
REASONS
8) POINT NO.1:- As the brief facts of the complainant's case as already stated above, hence I need not repeat the same facts once again to avoid the repetition of the same facts.
9) To bring home guilt against the accused, the complainant/prosecution must prove the following ingredients of Section 138 of N.I. Act.
i) That there is a legally enforceable debt.
ii) That the cheque was drawn from account of Bank for discharge in whole or in part of any debt or other liability which presuppose a legally enforceable debt;
iii) Cheque so issued had been returned due to insufficiency of funds.
10) To prove the aforesaid ingredients of Section 138 of N.I. Act, the complainant filed his chief affidavit and was examined as P.W.1. In his chief examination affidavit he reiterated the entire averments of the complaint. In support of his case he has exhibited Ex.P.1 to Ex.P.13 documents. Ex.P.1 5 C.C.NO:636/2018 & 2 are the cheques, Ex.P.3 to 6 are the Bank endorsements, Ex.P.7 legal notice, Ex.P.8 Postal receipt, Ex.P.9 RPAD return cover, Ex.P.10 another legal notice, Ex.P.11 postal acknowledgment, Ex.P.12 reply notice, Ex.P.13 bank pass book.
11) On careful perusal of the entire oral and documentary evidence, the admitted facts are that there is no dispute that Ex.P.1 & 2 cheques are belongs to the accused and they were dishonoured as per Ex.P.3 to 6 endorsements and notice has been served as per Ex.P.7& 11 documents . Further, there is no dispute that about issuance of reply notice as per Ex.P.12 document. Further, there is no dispute that about the ownership of accused pertaining to the car bearing No. KA-05-MN-0783 it was purchased by the complainant with the accused for Rs.7,15,000/- and further there is no dispute that about return of said car by the complainant and repayment of Rs.6 lakhs by the accused to the complainant. The prime dispute in the present case is that due of Rs.1,15,000/- by the accused and issuance of cheque by the accused to discharge the said debts.
To prove the said fact complainant examined as P.W.1 and he exhibited Ex.P.1 to13 documents. On the other hand, accused examined D.W.1 in his evidence he stated before the court that Ex.P.1 & 2 cheques are not belongs to his account and he has 6 C.C.NO:636/2018 not issued the cheques in favour of the complainant and notice has been duly served on him and reply also issued by the accused and he also exhibited Ex.D1 to 7 documents.
12) During the course of arguments complainant counsel Sri. BR vehemently argued that complainant has proved his case by way of oral and documentary evidence and on admissions in the mouth of D.W.1 and D.W.1 has categorically admitted that he has issued Ex.P.1 & 2 cheques to the complainant and in reply notice also admitted about the purchase of car by the complainant for Rs.7,15,000/- and return of Rs.6 lakhs by the accused and due of Rs.1,15,000/- and prays to convict the accused. Per contra, Sri. TMR counsel for accused resisted the said arguments and argued that absolutely complaint is not maintainable under section 138 of NI Act because as suggested by the complainant counsel to the accused, Ex.P.1 & 2 cheques are belongs to accused wife as such no offence has to be attracts against the accused under section 138 of NI Act and prays to acquittal of the accused. Before going to the merits of the case it is just and necessary to reproduce the admissions of the P.W.1 and D.W.1 for the sake of convenience .
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So, on perusal of the admissions of P.W.1 clearly indicates to the court that i.e, he admitted that there is no agreement between the complainant and accused for purchase of car is concerned and further there is no agreement for dues between the complainant and accused etc., D.W.1 also admitted the aforesaid points that he has not handed over the documents at the time of selling of car to the complainant and he also admitted that Ex.P.12 reply notice has been issued by him through his 9 C.C.NO:636/2018 advocate Manjunath and he also admitted that fixation of car price for Rs.7,15,000/- as per Ex.P.12 document and he also admitted that about the retain of Rs.1,15,000/- for damage expenses and he also explained about retain of Rs.1,15,000/- and he also admitted that there is no agreement at the time of return of car by the complainant and he also admitted that there is no agreement for the retain of Rs.1,15,000/- for damages and further he also admitted that he produced Ex.D5 to 7 documents by collecting him and also admitted that one Asba Khan is his wife and he also admitted that Ex.D6 belongs to his wife and complainant counsel has categorically admitted that in page-7 of cross-examination of D.W.1 dated 28.5.2019 in para No.3 that - ¤¦1 ªÀÄvÀÄÛ 2 ZÉPÀÄÌUÀ¼ÀÄ £À£Àß ºÉAqÀwAiÀÄ PÀA¥À¤UÉ ¸ÀA§AzÀs¥ÀlÖªÀÅ JAzÀgÉ ¸Àj So the said suggestions to the D.W.1, by the complainant counsel clearly indicates to the court that Ex.P.1 & 2 cheques are belongs to the accused wife by name Asba Khan. In entire case proceedings accused has categorically denied that cheques are not belongs to him, even though complainant has not taken any endevaours to initiated any proceedings against the accused wife Asba Khan and further on perusal of the Ex.P.1 & 2 cheques the said documents issued by the Proprietor/Authorised signatory by name Asba Khan and 10 C.C.NO:636/2018 further on perusal of the Ex.D6 it is certificate issued by the Government of India, the said document reads of follows ;
Government of India Form GST REG-06 (See Rule10(1)) Registration certificate Registration Number : 29BFEPA5956BIZN 1 Legal name ASBA KAHN 2 Trade Name, if any RAIN DROP WATER PROOFING SOLUTIONS 3 Constitution of Business Proprietorship 4 Address of Principal place of Business No.92, V P Road, BTM 1st STAGE, MADIWALA ,Karnataka 560 008 5 Date of Liability 01/07/2017 6 Period of Validity From 01/07/2017 To NA 7 Type of Registration Regular 8 Particulars of Approving Authority Signature Name Designation Jurisdictional office
9.Date of issue of Certificate Note: The registration certificate is required to be prominently displayed at all places of business in the state So, the contents of Ex.D.6 indicates to the court that one Asba Khan is the proprietor of the Rain Drop Water Proofing Solutions . So, on careful comparison of entries in Ex.P.1 & 2 cheques and Ex.D.6 clearly indicates to the court that cheques are belongs to the accused wife Asba Khan but the said cheques have been issued by the accused to the complainant to towards repayment i.e, car consideration amount. Of course, on perusal of the admissions of D.W.1 and Ex.P.12 reply notice clearly indicates to 11 C.C.NO:636/2018 the court that about held of car transactions between the complainant and accused for Rs.7,15,000/- after some days on finding defects in the car complainant has returned the said car to the complainant and repaid Rs.6 lakhs by the accused to the complainant and due of Rs.1,15,000/- hence accused has issued cheque i.,e Ex.P.1 & 2. But the now, the dispute is that cheques are not belongs to the accused because the suggestion of the complainant counsel to D.W.1 as stated above and on perusal of the entries in Ex.P.1 & 2 and Ex.D6 corroborates with each other that Asba Khan is the proprietor of Rain Drop Water Proofing Solutions and cheques also belongs to her. Even though accused has issued cheques to complainant but accused has not liable for the offence punishable under section 138 of NI Act, because he is not the proprietor as per Ex.D6 document and he has not signed on Ex.P.1 & 2 cheques but the complainant is at liberty to take any actions against the and under section 420 IPC or other penal provisions nor recovery the amount as per procedure established under law. Of course complainant has proved his case in all preponderance of probabilities i.e, cheques are issued for debts between the complainant and accused i.e., for consideration car i.,e complainant has purchased the said car for Rs.7,15,000/- and after finding defects in the said car complainant has return the said car to the accused and 12 C.C.NO:636/2018 thereafter accused has repaid Rs.6 lakhs to the accused, for remaining amount accused has issued cheques of his wife. The evidence of P.W.1 and Ex.P1 to 13 documents corroborates with each other that about having of dues between the complainant and accused and service of notice on accused and issuance of reply notice by the accused in reply notice accused has categorically admitted in page-2 and para No. 2 about the purchase of car bearing No. KA-05-MN-0783 for Rs. 7,15,000/- and return the said car due to some defects etc, but the complainant has filed the case against the accused instead of filing case against the accused wife Asab Khan. As such any amount of oral evidence placed by the P.W.1, including his documents Ex.P1 to 13 and arguments of the complainant counsel have not helpful to the complainant case, and accused is entitled for benefit of doubt as he is not found guilty. On the other hand, accused has categorically proved that Ex.P1 & 2 cheques are not belongs to him they belongs to his wife Asba Khan as such accused is entitled for benefit of doubt as he is not found guilty. Further, the admissions of D.W.1 and Ex.D1 to 7 documents indicates to the court that about held of car transactions between the complainant and accused i.e, car No. KA-05-MN-0783 for Rs.7,15,000/- and after purchase of said car and on finding defects the said car was returned to the 13 C.C.NO:636/2018 accused has and accused repaid the amount of Rs.6 lakhs and he is due of Rs1,15,000/-. So, for the said dues instead of issuance of his cheques he has issued cheques of his wife. The said acts of the accused are not coming under the purview of under section 138 of NI Act proceedings, Hence, accused is entitled for an acquittal and I answer this Point No.1 in the Negative.
14). POINT NO.2:- In view of my discussions as stated supra and my findings on Point No.1., I proceed to pass the following.
ORDER Acting under Section 255 (1) of Cr.P.C, accused is hereby acquitted of the offence punishable under Section 138 of Negotiable Instruments Act 1881.
The bail bond executed by the accused and surety bond executed stands cancelled.
(Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 6th day of September 2019).
(MANJUNATHA.K.P) XVIII A.C.M.M., BENGALURU.
14 C.C.NO:636/2018ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Uma Shankar
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1&2 : Two Cheques.
Ex.P.1(a) & 2(a) : Signatures of the accused.
Ex.P.3 to 6 : Bank endorsement. Ex.P.7 : Office copy of demand notice. Ex.P.8 : Postal receipt. Ex.P.9 : Return Postal cover Ex.P.10 : Legal notice Ex.P.11 : Postal acknowledgment Ex.P.12 : Reply notice Ex.P.13 : Pass book
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Asar Ali
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D1 : Reply notice
Ex.D.2 : Postal receipt
Ex.D.3 : Acknowledgment
Ex.D.4 : Legal notice
Ex.D.5 : Statement
Ex.D.6 : Registration Certificate
Ex.D.7 : Certificate
XVIII A.C.M.M., BENGALURU.
15 C.C.NO:636/2018