Bangalore District Court
For The Offence Punishable U/S.138 Of vs Approached For The Purpose Of Batteries ... on 23 February, 2017
1 CC.NO. 23788/2015
IN THE COURT OF THE XV ADDL CHIEF
METROPOLITAN MAGISTRATE: BANGALORE CITY.
Dated this the 23rd day of February 2017
Present: Sri.V.S.Pandit,B.A.,LL B.,
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.23788/2015
2.Name of the Complainant: Mr.Dharuman,
S/o.Late.Mahadevan,
Aged about 39 years,
Proprietor of M/s.Manjushree
Battery, office at No.71,
2nd Stage, Ashwathnagar Bus
Stand, Sanjaya Nagar Main
Road, Bangalore-560 094.
3.Name of the accused: Mr.Gangaraju,
S/o.Not Known,
Aged by Major,
Residing at No.43,
First Floor, 2nd Cross,
Sonnappa Layout,
Near Rainbow International
School, Keregudadahalli,
Chikkabanawara Post,
Bangalore-560 090.
4.The offence complained of U/s.138 of Negotiable
Instruments Act.
:
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(1) Cr.P.C.,
accused is Acquitted.
2 CC.NO. 23788/2015
7.Date of final Order 23rd day of February 2017.
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1. The accused has been prosecuted by the
complainant for the offence punishable U/s.138 of
Negotiable Instrument Act - 1881 (hereinafter referred as
NI Act for brevity)
2. Case of the complainant in brief are as under -
a. It is the case of the Complainant that he is the
Proprietor of M/s.Manjushree Battery running business in
office No.71, II Stage, Ashwathnagar Bus Stand,
Sanjayanagar Main Road, Bengaluru having TIN
No.29480747133 complainant running the business in the
address stated above. The said Firm is registered under
the trading activities and also authorized dealers of Exide
Batteries supplying different types of Batteries and
accessories to the customers.
b. It is further case of the complainant that
accused approached for the purpose of Batteries and other
components on credit basis. Accordingly under invoice
No.7165 dated 01.05.2015 invoice amount of Rs.69,944/-,
3 CC.NO. 23788/2015
invoice No 7166 dated 01.05.2015 for invoice No.30,649
and invoice No.7167 dated 01.05.2015 invoice amount
3,725/- worth batteries were purchased by the accused.
While purchasing batteries and other accessories accused
issued two post dated cheques from his personal bank
account for the first two invoices and further promised to
pay a sum of Rs.3,725/- by way of cash.
c. It is further case of the complainant that both
the cheques were presented through Syndicate Bank,
Sanjayanagar Branch, Bengaluru on 02.05.2015. On
04.05.2015 both the cheques have been returned unpaid
for the reason "Funds Insufficient". Thereafter accused
was informed about the dishonouring of the cheques. At
the instance of the accused, once again cheques were
presented for encashment. Again on 02.07.2015 cheques
were returned unpaid for the reason "Funds Insufficient".
d. Demand Notice was issued on 09.07.2015.
However, notice was returned with an endorsement
"Unclaimed". Therefore, the complainant constrained to
file the present complaint.
4 CC.NO. 23788/2015
3. After taking cognizance, this court issued
summons to the accused. In response to the summons,
accused appeared and was enlarged on bail. Plea for the
offence was read over and explained to the accused.
Accused pleaded not guilty and pleads his innocence.
4. To sustain the charge leveled against the accused,
the complainant examined himself as PW.1 and got
marked the documents at Ex.P.1 to P.12 on behalf of the
complainant.
5. After conclusion of the evidence of the
complainant, statement of the accused u/s.313 Cr.P.C.,
was recorded. Accused denied the evidence and
documents as false. Accused did not lead any defence
evidence on his behalf. Additional written statement is
filed.
6. Heard both sides.
7. The points that arise for my consideration are as
under:-
1) Whether the complainant has proved
that cheque was issued by the accused
5 CC.NO. 23788/2015
for discharge of legally enforceable debt,
the same was returned unpaid for the
reason "Funds Insufficient" notice was
not complied. Hence accused committed
an offence under Sec.138 of N.I. Act ? ?
2) What Order ?
8. My findings on the above points are as follows:
Point No.1 : In the Negative,
Point No.2 : As per final Order, for the
following;
REASONS
9. Point No.1 - It is the case of the complainant
that under invoices No.7165 and Invoice No.7166 both
the dated 01.05.2015 batteries and other accessories
worth Rs.1,00,587/- were supplied to the accused. To
discharge the liability on 04.05.2015 and 02.05.2015
cheques were issued for repayment of the amount. On
presentation, both the cheques have been dishonoured for
the reason "Funds Insufficient". Despite service of notice,
accused did not bother to make the payment. Therefore,
the complainant is constrained to file the complaint.
6 CC.NO. 23788/2015
10. It is the case of the accused that he did not
purchase the batteries and other accessories as alleged.
Cheques impugned were not issued for discharge of
liability as contended. According to the accused
complainant is having a chit transaction with one
Narayanaswamy and it is in this context the cheques
issued by the accused for security purpose has been
misused and false complaint has been filed.
11. The learned counsel for the complainant at the
outset has submitted that signature and drawing of the
cheque from the account of the accused is not denied.
Therefore initial presumption has to be drawn that cheque
in question is issued for discharge of liability. Apart from
that it is contended that on perusal of the entire cross
examination directed to the complainant except
suggestions there is nothing on record to discard the
evidence. Therefore, the learned counsel for the
complainant has sought for conviction.
7 CC.NO. 23788/2015
12. As against these arguments the learned counsel
for the accused has invited the attention of the court
towards the cross examination directed to the complainant
and also taken through all records produced by the
complainant. According to him Ex.P.3 and P.5 invoices
dated 01.05.2015 does not disclose that batteries and
other accessories were in fact supplied to the accused.
There is no records to show that the complainant is
running the business in the name and style of Manjushree
Batteries as alleged. Admittedly accused did not endorse
Ex.P.3 and P.5 invoices for having received the batteries
and other accessories. Apart from that the complainant
has admitted in his cross examination that there is a
difference in the style of making signature compared to
that of the contents written in the cheque. It is not the
case of the complainant that at the authority of the
accused cheque has been filled up. There is no records to
show that as on the date of issuance of the cheques
Rs.1,00,587/- is due. Ex.P.11 sales register and Ex.P.12
Vat Form No.100 does not disclose that batteries and
8 CC.NO. 23788/2015
other accessories were in fact supplied to the accused.
Therefore for all these reasons learned counsel for the
accused sought for acquittal.
13. The signature and drawing of the cheque from
the account of the accused is not denied. Therefore initial
presumption has to be drawn that cheque in question is
issued for discharge of liability. However, said
presumption is rebuttal in nature and it is for the accused
to rebut the presumption by placing direct or
circumstantial evidence. The onus is that of
preponderance of probabilities. Accused need not put
forth his defence beyond all reasonable doubt.
14. On careful perusal of the cross examination
directed to the complainant wherein complainant has
admitted that in Ex.P.3 to P5 invoices there is no any
mention with regard to the name and address of the Firm
for which the materials have been supplied. Further it is
admitted that in case of transaction made in excess of
Rs.20,000/- filing of E-Sugama is mandatory. Further it
9 CC.NO. 23788/2015
is admitted that complainant did not file E-Sugam in
respect of invoice as per Ex.P.3 to P.5. In Ex.P.3 to P.5
complainant did not obtain the signature of the accused.
In Ex.P.3 to P.5 there is no any mention that cheques in
question were issued for the discharge of the debt incurred
for the supply of batteries and other accessories.
15. Complainant in further lines admitted he do
not know the phone number of the accused and does not
know the address of the accused. Apart from that it is
admitted, instead of issuing three invoices one invoice
could have been issued. Further it is admitted that
normally in invoices the persons who received the
batteries and accessories will endorse by signing that the
materials supplied are in good condition.
16. It is admitted that in Ex.P.11 i.e., sales register
from 01.05.2015 to 31.05.2015 cheque numbers have not
been mentioned in Ex.P.11 sales register. There is no
signature and seal of the concerned office. No records to
show that Ex.P.11 sales register as in fact sent to the
10 CC.NO. 23788/2015
department. In Ex.P.12 sales tax returns there is no
mention with regard to number of invoices which is stated
in Ex.P.3 to P.5. It is admitted by the complainant that
previously also he had a transaction with the accused. But
further submits that since the transaction was made by
way of cash., therefore there is no records.
17. It is also pointed out by the learned counsel for
the accused that complainant has stated in his cross
examination there is a difference in the style of writing
compared to the signature and other contents found in the
disputed cheques as per Ex.P.1 and P.2. Apart from that
complainant has admitted contents of Ex.P.1 and P.2 has
been written by the accused in the presence of the
complainant. It is admitted by the complainant that he
did not produce any records to show that he is the owner
of Manjushree Batteries and in Ex.P.11 and P.12 sales
register and VAT form the name of the complainant is not
found. There is no records to show that the accused is the
owner of Kamadhenu Enterprises.
11 CC.NO. 23788/2015
18. If the above accused admission is taken into
consideration in the light of the documents produced by
the complainant in the opinion of this Court, the
complainant has failed to impress upon the Court that
cheques impugned as per Ex.P.1 and P2 have been issued
for discharge of liability. Based on Ex.P.3 to P.5 it cannot
be held that batteries and other accessories have been in
fact supplied to the accused. On careful scrutiny of
Ex.P.3 to P5 the alleged invoices there is no any mention
with regard to the name of the accused and Firm. Further
there is no any endorsement made by the accused in
Ex.P.3 to P.5 for having received the goods. Further it is
relevant to observe and as rightly pointed out by the
learned counsel for the accused, that invoices at Ex.P.3 to
P.5 bears identical date i.e. 01.05.2015. If the goods were
supplied there was no difficult for the accused to issue one
single invoice instead of three invoices. Apart from that if
the cheques were issued for discharge of the liability for
having received the goods as per Ex.P.3 to P.5, since the
invoices contain only one date i.e., 01.05.2015, accused
12 CC.NO. 23788/2015
could have issued one cheque instead of issuing two
cheques for having allegedly received the goods on the
same day.
19. Apart from that when the complainant asserts
that goods worth more than Rs.1 lakh was supplied to the
accused, under such circumstances, it is reasonable to
expect from the complainant to come out with all
particulars with regard to the background of the accused.
There is no records to show that accused is the owner of
Kamadhenu Enterprises. Further complainant admits in
his cross examination that he does not know the phone
number of the accused and address proof. Further it is
admitted that in Ex.P.3 to P.5 invoice there is no any
mention with regard to the name of the accused as well as
the address of the Firm.
20. It is further relevant to observe that
complainant has admitted in his cross examination that in
case of transaction in excess of 20,000/- the same shall be
entered in E-Sugam or M.Sugam, therefore when the
13 CC.NO. 23788/2015
complainant did not enter the transaction, as rightly
pointed out by the learned counsel for the accused
invoices at Ex.P.3 to P5 is to be held that the same is not
genuine. Since in Ex.P.3 to P.5 there is no mention with
regard to receipt of the goods by the accused.
21. As rightly pointed out by the learned counsel for
the accused in Ex.P.11 sales register there is no records
with regard to the seal and signature of the department
and no records to show that Ex.P.11 was in fact sent to
the department. In Ex.P.12 VAT Form also there is no any
invoice number as per Ex.P.3 to P.5.
22. It is further significant to observe that
complainant admits in his cross examination that there is
a difference in the mode of writing compared to the
signature in the disputed cheques. It is further relevant to
observe that complainant admits in his cross examination
that contents have been written by the accused in his
presence. If according to the complainant contents were
written in his presence and signature is also made in his
14 CC.NO. 23788/2015
presence, under such circumstances, there cannot be any
difference in the mode of making signature as well as
contents.
23. The Hon'ble Supreme Court in the case of
John K.Abraham - Appellant Vs. Simon C. Abraham
2014 (2) SCC 236 it is held with regard to the ignorance
on the part of the complainant with regard to proper
execution of the cheque and writing contents as one of the
ground to rebut the presumption. In this case also the
complainant has failed to explain under what
circumstances two cheques have been issued by the
accused for one single transaction instead of one cheque.
Further failed to explain why there is a difference in the
mode of writing contents as well as signature when
according to the complainant both have been done in his
presence.
24. Therefore overall examination of the material
placed on record by the complainant, it is not a fit case
wherein presumption is required to be drawn. No doubt,
15 CC.NO. 23788/2015
accused did not conclusively prove that cheques in
question were issued for the chit transaction, but even
then prima-facie if the material placed on record by the
complainant is examined the issuance of the cheques for
discharge of the liability is not proved. Therefore, I answer
the above point No.1 in the Negative.
25. Point No.2 : In the result, I proceed to pass the
following:-
ORDER
Acting Under Sec.255(1) Cr.P.C., the accused is Acquitted for the offence punishable u/s.138 NI Act.
Bail bond and surety bond of the accused shall stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 23rd day of February 2017.) (V.S.PANDIT), XV Addl. CMM., Bangalore.
16 CC.NO. 23788/2015ANNEXURE Witnesses examined for the Complainant:-
PW.1 Dharuman Documents marked for the Complainant:-
Ex.P.1 & P.2 Two Original cheques Ex.P.1a & P2a Signatures the accused, Ex.P.3 to P.5 Three Invoice receipts, Ex.P.6 Bank endorsement, Ex.P.7 Copy of the Legal notice, Ex.P.8 & 9 Postal & Courier Receipts, Ex.P.10 Postal Envelope, Ex.P.10(a) Notice, Ex.P.11 Sales Register, Ex.P.12 Sales Tax Returns.
Witnesses examined For Defence:-
Nil.
Documents marked for Defence:-
Nil.
XV Addl.CMM., Bangalore.17 CC.NO. 23788/2015
23.02.2017 (Judgment pronounced vide separate sheet) ORDER Acting Under Sec.255(1) Cr.P.C., the accused is Acquitted for the offence punishable u/s.138 of the N.I.Act.
Bail bond and surety bond of the accused shall stands cancelled.
(V.S.PANDIT), XV ACMM., Bangalore.
18 CC.NO. 23788/2015