Bangalore District Court
M/S. Itw Consulting Private Ltd vs M/S.Oneindig Technologies Pvt on 16 January, 2023
KABC0C0169012017
IN THE COURT OF XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM34)
PRESENT: Smt.PARVEEN A BANKAPUR,B.Com.LLB.
XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 16th day of January, 2023.
C.C.No.55487/2017
COMPLAINANT : M/s. ITW Consulting Private Ltd.
A company incorporated under
Companies Act, 1956 having its
Office at No.16/1, 1st Floor,
AVS Compound, 80 Feet Road,
4th Block, Kormanagala,
Bengaluru - 34.
Rep.by its General Manger Finance
Mr. Kumar Manoj S
Agedabout 35 years
(By Mr.Laxmikantha K.B. -
Advocate)
V/s
ACCUSED : 1. M/s.ONEINDIG Technologies Pvt
Ltd.,
903904, IRIS Tower Omaxe Green
Valley, Sector41 42, Faridabad,
Haryana 121 003.
2:Manoj Agrawal
Director
OEINDIG Technologies Pvt.Ltd.,
903904
IRIS Tower Omaxe Green Valley
Sector4142 Faridabad
Haryana - 121 003.
3. Jitendra Dharmapal Tiwari
Director,
OEINDIG Technologies Pvt.Ltd.,
2 C.C.No.55487/2017
903904
IRIS Tower Omaxe Green Valley
Sector4142 Faridabad
Haryan121 003.
(By Mr.A.M. Vijay - Advocate)
1 Date of Commencement 01.03.2017
of offence
2 Date of report of offence 15.06.2017
3 Presence of accused
3a. Before the Court 13.08.2018
3b. Released on bail 13.08.2018
4 Name of the Complainant M/s. ITW Consulting Private Ltd.
5 Date of recording of 15.06.2017
evidence
6 Date of closure of evidence 10.10.2022
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused are found guilty.
JUDGEMENT
The Private Complaint is filed under Section 200 of Cr.P.C against the accused persons alleging that they have committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that, it is authorized to represent the company. They are one of the India's leading Sports Management Companies and a consulting firm, engaged in sports consulting, sports marketing, sponsorship and event 3 C.C.No.55487/2017 management as part of its business activities. It carries on acquisition, buying selling, procuring, sponsoring commissioning, production, advertising and marketing of sports programs, entertainments events and concerts. The Accused No.1 is a company engaged in the business of LED Light represented by 2nd and 3rd Accused Directors and are responsible for the day to day business of the 1 st Accused.
It is further submitted that the 1st Accused company has entered into an agreement dtd.20.2.2017 duly signed by the 3 rd Accused with them along with RN Sports Club Pvt. Ltd. For the Onground Advertising and sponsorship rights for the West Indies V/s. England ODI Cricket Series 2017 held on 3.3.2017, 5.3.2017 at Sir Vivian Richards Stadium North Sound, Antigua and 9.3.2017 at Kensington Oval, Bridgetown, Barbados as per the schedule I of the agreement. The advertising and promotion rights of the event are more particularly described in the schedule II of the said agreement as duly conducted, the detail of the schedule II are as follows;
SCHEDULE II WEST INDIES V/S.ENGLAND CRICKET SERIES 2017 TITLE SPONSOR XYZ CUP NAMING RIGHTS PWD BY ABC FOR E.G. ONEINDIG CUP IN ALL COMMUNICATIONS 4 C.C.No.55487/2017 Entitlements One mat behind each wicket (both sides) shared with the other sponsors Stumps branding (exclusive) 8 perimeter boards :3 Behind each wicket and 1 on each side side of the mid wicket Logo on backdrops shared: Presentation, Mid pitch discussions and press Contest and activation rights Tickets to matches Ball boy Tshirts need to be provided by the brand 100 Nos x 3 days Trophy unveiling and press conference event cost: at actuals RIGHTS To design the cup logo in consultation with ITW and WICB (West Indies Cricket Board) To design the winner trophy for the series To give the man of the match awards To have company representative in the presentation ceremony To give the man of the series winner award To give the series cup to the winning captain along with WICB representative To product display To Brand ball boy and Ground Crew Tshirt 5 C.C.No.55487/2017 To distribute cheer material (in stadia) To unveil the series trophy with the two team captains in West Indies and Press Conference.
It is further submitted that in consideration to the above advertising and promotion rights of the events the Accused company has issued 2 Cheques bearing No.297068 dtd.1.3.2017 for Rs.42,50,000/ and another Cheque bearing No.297069 dtd.1.3.2017 for Rs.42,50,000/ both drawn on IndusInd Bank, Sec. 21 Faridabad branch duly signed by the Accused No.2.
It is further submits in the complaint that the Complainant presented both the cheques through his banker Development Bank of Singapore Bank Ltd., (DBS), Ulsoor, Bengaluru branch for realization. But the said cheques was returned unpaid for the reason "payment stopped by drawer" with an endorsement dtd.3.5.2017. Thereafter the Complainant got issued demand notice through RPAD on 9.5.2017 through his counsel to all the Accused persons. The notice served on the Accused No.1 on 18.5.2017 and the Complainant has not received the other acknowledgements. After receipt of the notice, the Accused sent a detailed reply 6 C.C.No.55487/2017 dtd.25.5.2017 stating that the Cheque was misused by the Complainant and no amount was due from them. Hence, the Complainant has filed present complaint against the Accused persons for the offence punishable u/Sec.138 of N.I. Act.
3. After issuance of summons, accused appeared before the court and enlarged themselves on bail. Plea was recorded, read over and explained to the accused persons, who pleads not guilty and claims to be tried. Hence, the case is posted for complainant's evidence.
4. The General Manger of the Complainant company got examined himself as PW1 and got marked documents Ex.P.1 to Ex.P.37 and closed his side.
5. Accused were examined U/S 313 of Cr.P.C. Incriminating evidence appearing in the complainant's evidence was read over and explained to the accused persons who denies the same. The 3rd Accused examined himself as DW1 and got marked documents Ex.D.1 to Ex.D.21 and closed his side.
6. Heard both counsels at length in great detail. 7 C.C.No.55487/2017 The learned Counsel for complainant has placed the following citations;
1. Criminal Appeal No.87/2020 in the case of Padum Kumar V/s State of Uttar Pradesh.
2. (2009) 1 SCC 69 in the case of Sri Krishna Agencies V/s. State of A.P. and Another
3. Criminal petition No.1591/2006 dtd.13.11.2009 in the case of Shivani Healthcare and K.N. Murali Krishna Babu
4. Criminal Appeal No.1860/2011 dtd.8.12.2021 in the case of K.S. Ranganatha V/s. Vittal Shetty
7. Upon hearing the arguments and on perusal of the materials placed on record, the following points arise for my consideration.
1)Whether complainant proves beyond all reasonable doubts that accused in discharge of legally recoverable debt has issued 2 Cheques bearing No.297068 dtd.1.3.2017 for Rs.42,50,000/ and another Cheque bearing No.297069 dtd.1.3.2017 for Rs.42,50,000/ both drawn on IndusInd Bank, Sec. 21 Faridabad branch in favour of the complainant which came to be dishonoured with an endorsement "payment stopped by drawer" on 3.5.2017 and in spite of service of notice accused have not paid the Cheques amount and thereby committed an offence under Section 138 of N.I.Act?
2) What Order?
8. My findings on the above points is:
Point No.1: In the Affirmative 8 C.C.No.55487/2017 Point No.2: As per final order for the following:
REASONS Point No.1:
9. Existence of legally recoverable debt is a sine qua non for prosecuting the case under Section 138 of Negotiable Instruments Act. For convenient purpose the essential ingredients to constitute offence under section 138 of N.I.Act is summarized as below:
(i) That there must be a legally enforceable debt.
(ii) That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes the legally enforceable debt.
(iii)That the cheque so issued had been returned due to "insufficient funds".
10. It is the core contention of the complainant that, the Complainant company one of the India's leading Sports Management Companies and consulting firm engaged in sports consulting, sports marketing, sponsorship and event management as a part of its business activities. Accused No.1 company is engaged in the business of LED Light represented by 2nd and 3rd Accused, Directors who are responsible for the 9 C.C.No.55487/2017 day to day business of 1 st Accused company. It is further submitted that Accused No.1 company has entered into an agreement dtd.20.2.2017 duly signed by the 3 rd Accused along with R.N. Sports Club Pvt. Ltd. for the OnGround Advertising and sponsorship rights of West Indies V/s. English ODI Cricket Series 2017 held on 3.3.2017, 5.3.2017 at Sir Vivian Richards Stadium North Sound, Antigua and 9.3.2017 at Kensington Oval, Bridgetown, Barbados as per the schedule I of the agreement. The advertising and promotion rights of the event mentioned in Schedule II as per the complaint. It is further submitted that, in consideration to above advertisements and promotion rights events, the Accused company has issued 2 Cheques for Rs.42,50,000/ vide Cheque bearing No.297068 and 297069 dtd 1.3.2017 signed by the Accused No.2 and Accused No.2 and 3 have requested the Complainant not to present the Cheques on various dates and further on two occasions, they have assured that Cheques on being presented to the bank for clearance, will not be return for whatsoever reason and finally, by email dtd.2.5.2017 both Accused promised to maintain the balance in their bank account. It is further submitted that assurance of the Accused, 10 C.C.No.55487/2017 the Complainant presented the both the Cheques for encashment on 2.5.2017 which are dishonoured with endorse "payment stopped by drawer" and accordingly, the Complainant has issued demand notice to the Accused which duly served upon the Accused. After service of notice, the Accused replied through their counsel. It is further submitted that the Accused persons with an intention to cheat and deceive them, forced them to believe that they would make the payment due to them by honouring the Cheques and such deception was continued till the deposit of Cheques by them in their account and Cheques were issued with an intention to defraud the Complainant. Therefore, the Complainant has filed present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
11. In order to bring home the guilt of the accused, the authorized representative of the Complainant company has examined himself as PW1 and reiterated the contents of complaint in his examinationinchief. He has also placed the board resolution for authorizing him to represent the case at Ex.P1, Ex.P2 is agreement dtd.20.2.2017, Ex.P3 and 4 are 11 C.C.No.55487/2017 original Cheques bearing No.297068 and 297069 dtd.1.3.2017, Ex.P3(a) and 4(a) the signature of the Accused, Ex.P5 and 6 are bank challans, Ex.P7 and 8 are bank endorsements, Ex.P9 is the office copy of legal notice issued by the Complainant to Accused on 9.5.2017, Ex.P10 to 12 are postal receipts, Ex.P13 is postal acknowledgment, Ex.14 and 15 are applications to the postal department, Ex.P16 is the reply of postal department, Ex.P16(a) is return postal cover, Ex.P17 is the email communication, Ex.P18 is the Certificate u/Sec.65(B) of Indian evidence Act, Ex.P19 is profile records dtd.28.2.2017, Ex.P20 to 25 are 7 facebook records, Ex.P26 is DVD with regard to West Indies V/s. England ODI Cricket Series 2017, Ex.P27 to 30 are photographs, Ex.P31 is email communication dtd.21.2.2017, Ex.P32 is proforma invoice dtd.22.2.2017, Ex.P33 is email communication dtd.24.2.2017, Ex.P34 is the email communication dtd.25.2.2017, Ex.P35 is Cheque issued confirmation, Ex.P36 is whatsapp chat printouts and Ex.P37 is Certificate u/Sec.35(B) of Indian Evidence Act.
12. The documents produced by the complainant of course established that complainant meets out the procedural 12 C.C.No.55487/2017 requirements of Section 138 of Negotiable Instrument Act, but it is to be considered whether all these documents establish the offence committed by the accused.
13. The Negotiable Instruments Act raises two presumptions. One contained in Section 118 and the other in Sec. 139 thereof. For the sake of convenience Sec 118(1) of the N.I. Act is extracted here below:
118. Presumptions as to negotiable Instruments Until the contrary is proved, the following presumptions shall be made ;
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
1. To (g) . . . . . . . . . . . .
Provided that where the instrument has been obtained from its lawful owner, or from an person in lawful custody thereof, by means of an offence of fraud, or has been obtained from the maker or acceptor thereof by means of an offence of fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him".
13 C.C.No.55487/2017
14. Further Section 139 of the Negotiable Instruments Act reads as under:
"139, Presumption in favour of holder. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability."
Scope and ambit and function of the presumption U/s 118(a) and Sec 139 of NI Act came to be considered by the Hon'ble Apex Court of Indian in Krishna Janardhan Bhat Vs Dattatraya G.Hegde (2008 AIAR (Criminal 151) The Supreme Court has laid down the law in the following phraseology.
"D Negotiable Instruments Act 1881, Secs 139, 138--Presumption undersame arises in regard to second aspect of the matter provided under Sec 138-- Existence of legally enforceable debt is not a matter of presumption under Sec 139 It merely raises presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability - Merely an application of presumption contemplated under Section 139 of N.I.Act should not lead to injustice or mistaken conviction."
15. Further, said decision was followed by Hon'ble High Court of Karnataka in Kempanarasimhaiah Vs P.Rangaraju 14 C.C.No.55487/2017 & Others (2008 (5) KCCR 3371). Relevant paragraph of the said judgment reads as under: "12. As to the provisions of Sections 138 of N.I.Act, the following principles emerge from the above observations of Hon'ble Supreme Court at para Nos 21, 23, 25, 26 and 34 of its Judgment in the above said case of Krishna Janardhan Bhat Vs Dattatraya G.Hegde, AIR 2008 SC 1325.
(i) Section 139 of the Act merely raises a presumption that the cheque was issued towards discharge in whole or in part in any debt or other liability, which presupposed legally enforceable debt. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability." ( para 21)
(ii) The question as to whether the presumption stood rebutted or not, must be determined keeping in view the other evidences on record. Where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. (para 26)
(iii) An accused, for discharging the burden of proof placed upon him under a statute, need not examine himself. He may discharge his burden on the basis of the materials already brought on records (para 23)
(iv) Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Further more where as prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an 15 C.C.No.55487/2017 accused is " preponderance of probabilities'" ( para 23 & 25)
(v) Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies ( para 25)
(vi) Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be deliberately balanced (para 34)
16. Factual matrix of the case is required to be tested on the anvil of principles emerging from the abovereferred decisions.
17. It is case of the Complainant that Ex.P3 and 4 Cheques are issued on the basis of agreement dtd.20.2.2017. The Accused company ONEINDIG has entered into an agreement dtd.20.2.2017 duly signed by its director Accused No.3 with Complainant along with R.N. Sports Club Pvt. Ltd. for the OnGround Advertising and Sponsorship Rights for the West Indies V/s. England ODI Cricket Series 2017 held on 3.3.2017, 5.3.2017 at Sir Vivian, Richards Stadium North Sound, Antigua and 9.3.2017 at Kensington Oval, Bridgetown, Barbados. The Accused has categorically denied said agreement which is marked at Ex.P2. It is denied by the Accused that the 16 C.C.No.55487/2017 Accused No.3 Director of the Accused No.1 has signed on the agreement. It is specifically denied that signature of Accused No.3 on Ex.P2 is forged one.
18. Another defence taken by the Accused that the Accused has issued alleged Cheque to one Mr.Vijay Bharate who misused the said Cheque and hand over to Complainant and Complainant has misused the said Cheque. The both Cheques are issued by the Accused company to Mr. Vijaya Bharate when he had visited Delhi Office and assured of ticketing rights for one year to their company, but BCCI was insisting for two signed Cheques for Rs.42.5 lakhs each. Then Accused No.3 had issued 2 Cheques as security.
19. Another defence of the Accused is that, email I.D. mentioned in Ex.P17 is not belongs to the Accused. The said e mail I.D. is forged by using the mobile number of Accused No.3.
20. To prove the presumption, the authorized representative of the Complainant company examined as PW1 and he categorically stated about the execution of agreement dtd.20.2.2017 which duly signed by the Accused No.3 as a 17 C.C.No.55487/2017 Director along with R.N. Sports Club Pvt. Ltd. with respect of cricket match between West Indies V/s. England.
21. It is not disputed that, Accused company is a manufactures of LED bulbs and the Accused company is the advertisement consultancy firm. It is also not disputed that, Complainant company wanted to advertise its products during the cricket matches in the year 2017, during West Indies V/s. England ODI series there was on field advertisement of the Complainant products.
22. The Complainant sought to recover of amounts due under two Cheques Ex.P3 and 4 from the Accused alleging that there was a breach on the part of the tripartite agreement dtd. 20.2.2017. The Accused strongly disputed its Director's signature thereon and also contended that it was forged and the email I.D. [email protected] was never used by its Director Jitendra Tiwari to communicate with the Complainant. However, based on the facebook post on Complainant's Directors page with regard to ONEIDIG Cock dtd.28.2.2017, 3.10.2017, 8.8.2017, whatsapp chart of Mr.Jitendra Tiwari, one of the Directors of the Complainant 18 C.C.No.55487/2017 using mobile number with Mr.Raja Chakravarthi about payment dues.
23. Ex.P16 reply notice of the Accused wherein it is mentioned that, Mr.Vijay Kumar Bharate who has represented himself to be an agent BCCI and taken a blank Cheque from Accused from his corporate office at Delhi on 1.3.2017 which were issued by Accused to Vijay Kumar Bharate as a security to BCCI and not for any other purpose. It is further submitted by the accused that, the Accused has already made complete payment R.N. Sports Pvt. Ltd represented by its Director Mr. Vijay Kumar Bharate. The alleged two Cheques are not handover to the Complainant and there was no dealing whatsoever of Accused with the Complainant. It is further stated that, the Complainant has blackmailing and playing fraud to the Accused.
24. On perusal of the evidence of PW1, in the cross examination he admits that he has not personally meet the Accused company Director. He further stated in his cross examination that, through RN Sports Agency, the Accused are came to their company. In the evidence also he stated that the 19 C.C.No.55487/2017 agreement dtd.20.2.2017 was executed with respect of advertisement in England V/s. West Indies ODI Cricket Series. It is stated in the crossexamination that, on Ex.P2 after signing in Delhi, the agreement was brought to Bengaluru and on behalf of all Accused, Accused No.3 was signed on the agreement. It is further stated that the Accused No.3 was signed on Ex.P2 in the presence of R.N. Sports and at the time of signing by the Accused No.3 no representative of the Complainant were presence. The said deposition of the PW1 is as under;
"ನಪ 2 ರ ಕರರರಗಗ ಮದಲಲ ದಗಹಲಯಲಲ ಸಹ ಮರಡ ನನತರ ಬಗನಗಳಳರಗಗ ತರಲರಗತಲತ. ಎಲರಲ ಆಪರದತರ ಪರವರಗ ಮಳರನಗನ ಆಪರದತರಲ ಕರರರಗಗ ಸಹ ಮರಡದದರಲ. ನ ಪ 2 ಕರರರಗಗ ಆರರ ಎನರ ಸಗಳಸನರರರರ ಸಮಕಕಮ ಆಪರದತರಲ ಸಹ ಮರಡದದರಲ. ನ ಪ 2 ಕಗಕ ಆಪರದತರಲ ಸಹ ಮರಡಲವರಗ ನಮಮ ಕನಪನಯ ಯರವವದಗನ ಪಪತನಧ ಹರಜರರಲಲಲ. ಆಪರದತರಲ ನ ಪ 2 ಕಗಕ ಸಹ ಮರಡಲಲ ವಳನಬ ಮರಡಲತತತದದ ಕರರಣ ಸರಕಕದರರರ ಸಹ ಪಡಗಯಲಲ ಸಮಯ ಸಕಕರಲವವದಲಲ. ನ ಪ 2 ರ ಕರರರಲ ಪತಪವನಲನ ನದರಷಷ ಛರಪರ ಕರಗದದಲಲ ತಯರರಲ ಮರಡ ಆಪರದತರಲ ನಮಮ ಸಮಕಕಮ ಸಹ ಮರಡಲವನತಗ ಹಗನಳರಲವವದಲಲ.
ನಪ 2 ನಲನ ಆರರಎನರಸಗಳಸನರರರರ ರರಜರಚಕಪವತರಯವರ ಮಳಲಕ ಖಲದಲದ ಪಡಗದಲಕಗಳನಡದಗದವವ. ರರಜರ ಚಕಪವತರಯನಲನ ಸರಕಕದರರರರಗ ಮರಡಲಲ ನನನನದ ಯರವವದಗನ ಅಭಭನತರವಲಲ. ನ ಪ 2 ನಮಮ ಸರಸಧನನಕಗಕ ಬನದ ನನತರ ನರವವ ಆಪರದತರ ಜಗಳತಗ ಖಲದಲದ ಮರತನರಡರಲತಗತನವಗ."20 C.C.No.55487/2017
25. The learned Counsel for accused vehemently argued that, Ex.P17 email I.D. i.e., [email protected] which is created by Vijay Kumar Bharate using mobile number and not from the email I.D. of the Director Mr.Jitendra Tiwari. Further, it is argued that, an invitation letter sent to the Complainant Director Mr. Jitendra Tiwari vide email dtd..27.2.2017 is addressed to the email I.D. [email protected] and not to [email protected]., by this email it was the intermediatory who made arrangements for the Complainant Directors travel to Antigua and Barbodos and there is a absolutely no reference to any Ex.P2 agreement in this letter. It is further argued that infact by email dtd.3.6.2017 from email I.D. [email protected], the Complainant to Raja Chakravarthi of the Accused company has made it clear that he was seeing the agreement for the first time and never signed the same and both the seal and signature are forged, neither he and his company have nothing to do with the concocted and fraudulent agreement. It is further argued that, R.N. Sports Director Mr. Vijay Bharate who is the creator of said email I.D. and Accused No.3 has not signed on the agreement and not party to the agreement. The learned 21 C.C.No.55487/2017 Counsel for accused draw the attention of the court to Ex.P19 certified copy of Lab Report wherein it is opinion of the Expert that, the person who wrote the standard signatures marked as S1 to S20 did not write the questioned signatures marked as Q1 to Q15. Further the learned Counsel for accused draw the attention of the court to Ex.D18, the award of Arbitration in AC No.170/2018. In the Ex.P18, the learned Counsel for accused relied para 111 to 115 wherein the Hon'ble Arbitrator concluded that;
"Respondent No.1 has proved that the Director of Accused No.1 Monoj Agarwal had issued the above referred two Cheques as security to respondent No.2 to the presented before BCCI for one year ticketing rights and not for any dues if any, of cliamant company and further held that;
Though Ex.P8 and 9 the Cheques bear the name of the claimant company they were not at all intended to be issued to the name of claimant company and respondent No.2 has deliberately got written the name of claimant in both Cheques despite the acknowledgement as per Ex.P9 given by him to respondent No.1 and therefore, the dishonour of said Cheques is of no consequences for respondent No.1.22 C.C.No.55487/2017
26. Further, the learned Counsel for accused vehemently argued that, Vijay Bharate has created the eail I.D. as mentioned in Ex.P17 as above stated. In this regard Mr. Jitendra Tiwari has filed complaint before Commissioner of Police, Rajkot City, Rajkot as per Ex.P16 against Mr. Vijay Bharate. But, it is pertaining to note that no action on the complaint and no FIR and Charge sheet were filed on such complaint.
27. Mr. Jitendra Tiwari was examined as DW1. In the crossexamination he stated that they have filed police complaint against Vijay Bharate in Rajkot and Ex.D16 is the copy of complaint. He denied that, Ex.P16 complaint was closed. He admits that Vijay Bharate was not arrested by the police on basis of Ex.D16, but he stated that the enquiry is going on. He unable to say that on the basis of Ex.P16 FIR is registered or not.
28. In the examination in chief DW1 stated that he was attend the prize distribution function at West Indies. For going to West Indies Vijay Bharate was bear the expenses. For the purpose of Visa there is a email communication between 23 C.C.No.55487/2017 Complainant and himself. In the examination in chief he further stated that, on the two Cheques Accused No.2 was signed and issued by Accused No.2 on 1.3.2017. both Cheques are issued for ticket booking for the BCCI and said Cheques are issued for the purpose of security. In this regard they have received acknowledgement from Vijay Bharate. At the time of issuance of Cheque, The said Cheques are not issued to the Complainant company. But they are issued for ticket booking rights to the BCCI. They heard in first week of May 2017 that, both Cheques are with Complainant. The said examination chief of the DW1 is as under;
"ಈ ಪಪಕರಣದ ಎರಡಳ ಚಗಕಲಕಗಳಗಗ 2 ನಗನ ಆಪರದತರಲ ಸಹ ಮರಡರಲತರತರಗ ಮತಲತ ಎರಡಳ ಚಗಕಲಕಗಳನಲನ ಅವರಗನ ದದ 1.3.2017 ರನದಲ ಕಗಳಟಷದದರಲ. ಆ ಚಗಕಲಕಗಳನಲನ ಐ ಪ ಎಲರಟಕಗಟನಗರಹಕಲಕಗಳನಲನ ಬ ಸ ಸ ಐ ಯನದ ಪಡಗದಲಕಗಳಳಳಲಲ ಕಗಳಟಷದದರಲ ಮತಲತ ಆ ಚಗಕಲಕಗಳಲ ಭದಪತಗಗಗ ಕಗಳಟಷ ಚಗಕಲಕಗಳರಗದದವವ. ಆ ಕಲರತನತಗ ವಜಯ ಭರರರಗಯನದ ನರವವ ಸಸನಕಕತಯನಲನ ಪಡಗದಲಕಗಳನಡದಗದವವ. ಪಪಸಲತತ ಚಗಕಲಕಗಳಲಲಯಳ ಸಹ ನರವವ ಕಗಳಟಷ ಸಮಯದಲಲ ಪರವತ ಜರಗವವ ಖರಲ ಇದದವವ. ಒನರಇನಡಗಗಳ ಕನಪನಯಲ ನಮಮ ಪರವರಗ ಪರವತಗಗಳನಸಕರ ಫಯರರದ ಕನಪನಗಗ ಚಕಲಕ ಕಗಳಟಷರಲವವದಲಲ ಆದರಗ ಅದಲ ಟಕಗಟನಗರ ಹಕಲಕಗಳನಲನ ಬ ಸ ಸ ಐ ಯನದ ಪಡಗಯಲಲ ಕಗಳಟಷ ಭದಪತಯ ಚಗಕಲಕಗಳರಗದದವವ. 2017 ರ ಮನ ಮದಲ ವರರದಲಲ ಆ ಎರಡಳ ಚಗಕಲಕ ಫಯರರದಯಲಲ ಇರಲವ ಬಗಗಗ ತಳಯತಲ."24 C.C.No.55487/2017
29. In the examination in chief he denied that [email protected] email is not is not his email I.D. He further stated that Vijay Bharate was created the said email I.D. 30 In the crossexamination DW1 stated that their company having transaction with Vijay Bharate. In the cross examination he denied that, they have issued Ex.P3 and 4 Cheques to Vijay Bharate to give the said Cheques to the Complainant. He also denied that on the basis of Ex.P17 they have issued Ex.P3 and 4 Cheques and further he stated that Ex.P17 is created one. In the crossexamination he stated that they have paid Rs.1,20,00,000/ to Vijay Bharate, but they have not produced any statements. Further, in the cross examination he denied that the seal on Ex.P2 is not their company seal. The witness voluntarily stated that the seal is forged one. In the crossexamination further he stated that on Ex.P2 they have not lodged any complaint before the police, but they have filed complaint against Vijay Bharate. DW1 admits that on Ex.P3(a) and 4(a) signatures are Accused No.2's signatures.
25 C.C.No.55487/2017
31. The learned Counsel for Accused draw the attention of the court to Ex.P20 which is letter of Accused company wherein Ex.P3 and 4 Cheques are Issued as a security for agreement with BCCI for one year Cricketing tickets selling rights contract and same needs to be bankered only after written confirmation from the drawee. The letter was signed by Director of ONEINDIG Technologies i.e., Accused company. In the crossexamination DW1 admits that Ex.D1 is in their letterhead. He further stated that one of the partner Mr.Manoj Agarwal was written the letter Ex.D20. He further stated that in Ex.D20 Mr.Vijay Bharate was signed over the words Cheque received. He denied the suggestion that, taking sign on blank letterhead thereafter Ex.D20 letter was written. He further denied that colluding with Mr.Vijay Bharate, Ex.D20 was created.
32. Further, Ex.D19 is the Expert Opinion with regard to signature comparison, disputed signature in Ex.P2 agreement dtd.20.2.2017. It is opinion of the Expert that, the person who wrote the standard signatures marked as S1 to S20 did not write the questioned signature marked as A1 to 15. The said 26 C.C.No.55487/2017 document was sent to the scientific investigation from the order of Hon'ble Arbitrator. In this regard the learned Counsel for complainant has relied on judgment of Hon'ble Supreme Court of India in Crime No.87/2020 in the case of Padum Kumar V/s State of Uttar Pradesh. Hon'ble Supreme Court of India wherein Hon'ble Supreme Court observing the decision of Hon'ble Apex Court in S. Gopal Reddy V/s. State of A.P. (1996) 4 SCC 596, wherein the Supreme Court has held under;
"28 Thus, the evidence of PW3 is not definite and cannot be said to be of a clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering 'conclusive' proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal V/s. State of Punjab (1977) 2 SCC 210, while dealing with the evidence of a handwriting expert this Court opined;
".........We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be 27 C.C.No.55487/2017 received with great caution and perhaps none so with more caution then the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this court in Rama Chandra V/s. State of UP, AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis of conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed in Ishwari Prasad Misra V/s. Mohd. Isa AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee V/s. Subodh Kumar Banerjee AIR 1964 SC 529 where it was pointed out by this Court that, expert's evidence as to handwriting being opinion evidence can rarely, if ever take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin V/s. State of M.P. AIR 1967 SC 1326 28 C.C.No.55487/2017 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial."
33. In the present case, Ex.D19 is a Expert opinion which is not corroborated with any other evidence. Therefore, Ex.D19 is not conclusive proof for Ex.P2 is created one.
34. Further, learned Counsel for complainant relied judgment of Hon'ble Supreme Court of India in Cri.Appeal No. 1860 of 2011, in the Case of K.S. Ranganatha V/s. Vittal Shetty, wherein the Hon'ble Apex Court observing and relying the decision of K. Bhaskaran V/s. Sankaran Vaidhyan Balan and Another (1999) 7 SCC 510 wherein it is held as under;
"As the signature in the Cheque is admitted to be that of the Accused, the presumption envisaged in Sec.118 of the Act can legally be inferred that the Cheque was made or drawn for consideration on the date which the Cheque bears Sec.139 of the Act 29 C.C.No.55487/2017 enjoins on the court to presume that the holder of the Cheque received it for the discharge of any debt or liability. The burden was on the Accused to rebut the aforesaid presumption. The Trial Court was not persuaded to rely on the interested testimony of DW1 to rebut the presumption. The said finding was upheld by the High Court. It is not now open to the Accused to contend differently on that aspect."
Further it is held that;
"The position of law as noted above makes it crystal clear that when a Cheque is drawn out and is relied upon by the drawee, it will raise a presumption that it is drawn towards consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the Accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities."
35. Therefore, considering the fact and circumstances of the case and oral and documentary evidence place by both parties, Complainant has discharged his initial onus laid on him. When he has discharged his initial onus, it raises presumption U/s118(a) and 139 of Negotiable Instrument Act. 30 C.C.No.55487/2017 Accused has failed to rebut the presumption either by cross examination of PW1 or by his evidence. Since Accused has admitted his signature on the Cheque and said Cheque was dishonoured. Hence, he is committed offence punishable u/Sec.138 of N.I. Act.
36. As discussed above, the Complainant has proved his case as to commission of offence punishable u/Sec.138 of N.I. Act by the Accused. Considering the facts and circumstances of the case, nature of the case, year of transaction, nature of instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation and rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R. Vijayan V/s. Baby), etc., this court is of the considered view that it is just and reasonable to impose a fine of Rs.1,10,50,000/ and out of said amount, a sum of Rs.5,000/ has to be remitted to the State and the remaining amount of Rs.1,10,45,000/ is to be given to the Complainant as compensation as provided u/Sec.357 (1) of Cr.P.C. and accordingly, the Point No.1 is answered in the Affirmative.
31 C.C.No.55487/2017
37. POINT No.2 : In view of discussion held in Point No.1, I proceed to pass the following :
ORDER Acting U/S 255(2) of Cr.P.C., the accused are convicted for the offence punishable Under Section 138 of Negotiable Instrument Act. Accused are sentenced to pay fine of Rs.1,10,50,000/ (Rupees One Crore Ten Lakhs and Fifty Thousand only) in default to undergo simple imprisonment for 1 year. Further, it is made clear that out of fine amount, Rs.1,10,45,000/ (Rupees One Crore Ten Lakhs and Fortyfive Thousand only) is to be paid to the complainant as compensation and Rs.5,000/ is ordered to be remitted to the State.
Bail bond stands cancelled.
Supply the free copy of this judgement to the Accused forthwith.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 16th January, 2023) (PARVEEN A BANKAPUR) XXXIV ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. Kumar Manoj S. 32 C.C.No.55487/2017
2. Documents marked on behalf of complainant:
Ex.P.1 Board Resolution Ex.P.2 Agreement Ex.P.3 & 4 Cheques
Ex.P.3(a) & 4(a) signature of the Accused Ex.P.5 & 6 Bank challans Ex.P.7 & 8 Bank endorsements Ex.P.9 Office copy of Legal Notice Ex.P.10 t0 12 Postal receipts Ex.P.13 Postal acknowledgement Ex.P.14 & 15 Applications to the postal Ex.P.16 Reply given by the postal authority Ex.P.16(a) Return postal cover Ex.P.17 email communication Ex.P.18 Certificate u/Sec.65(B) of Indian evidence Act Ex.P.19 Profile records dtd.28.2.2017 Ex.P.20 to 25 7 facebook records DVD Ex.P.26 DVD Ex.P.27 to 30 Photographs Ex.P.31 e mail communication dtd.21.2.2017 Ex.P.32 Proforma invoice dtd.22.2.2017 Ex.P.33 e mail communication dtd.24.2.2017 Ex.P.34 email communication dtd.25.2.2017 Ex.P.35 Cheque issued confirmation Ex.P.36 Whatsapp chat printouts Ex.P.37 Certificate u/Sec.35(B) of Indian Evidence Act.
3. Witnesses examined on behalf of Accused :
D.W.1 Mr. Jitendra Dharampal Tiwari
4. Documents marked on behalf of Accused:
Ex.D.1 email correspondence Ex.D.2 Certificate u/Sec.65(B) of Indian Evidence Act Ex.D.3 to 9 email correspondences Ex.D.10 Complainant filed before Arbitration Centre Ex.D.11 Certified copy of deposition Ex.D.12 Certified copy of complaint filed in Delhi Court Ex.D.13 Certified copy of complaint given before Rajkot Police Commissioner 33 C.C.No.55487/2017
Ex.D.14 & 15 Certified copy of PAN Card and Passport Ex.D.16 Complaint given to the police Ex.D.17 Certified copy of Cheque bearing No.06242 Ex.D.18 Arbitration Award Ex.D.19 Certified copy of Expert's opinion Ex.D.20 Acknowledgement Ex.D.21 Certified copy of Com. A.P. No.61/2021 (PARVEEN A BANKAPUR) XXXIV ACMM, BENGALURU.