Bangalore District Court
Sri. Syed Zabiulla vs Smt. R.P. Umadevi on 2 March, 2015
IN THE COURT OF THE XIX ADDL.CHIEF
METROPOLITAN MAGISTRATE AT BANGALORE CITY
Dated this the 2nd day March 2015
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: CC No. 3148/2012
Complainant: Sri. Syed Zabiulla
S/o. Syed Shafiulla,
Aged about 26 years,
R/at No.235/2, Shikari Palya,
Hulimangala Post,
Anekal Taluk - 562 006.
Accused: Smt. R.P. Umadevi
Aged about 45 years
Proprietrix,
M/s. S.S. Enterprises,
No.597/A, 3rd Floor,
Srikantappa Complex,
Above Annapurna Bakery,
Vidhyapeeta Road,
Kote Kengeri,
Bangalore -560 060.
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused not found guilty
Date of order: 2nd March 2015
JUDGMENT
The complainant has filed this complaint U/s.200 of Cr.P.C. against the accused for the offence punishable U/s. 138 of N.I. Act. 2 C.C.No.3148/2012
2. The brief facts of the complaint is as hereunder:
The complainant stated that on 12/7/2010 the Accused being proprietrix of her proprietary concern S.S. Enterprises had collected a sum of Rs.3,50,000/- from this Complainant under the receipt No.1679, dtd.6/6/2010 and 2008, dtd. 12/7/2010 for Rs.1,50,000/- and Rs.2,00,000/- respectively and she had given him 18 seats I.D. to each of them and out of one of the labour contracting work in internet job at Rs.24,000/- per seat per month for a period of 11 months from 12/7/2010. The Accused has undertaken that she will refund the entire amount of Rs.3,50,000/- within 25 days after completion of the 11 months period. The Complainant promptly executed his work but the Accused has failed to make payment of the remuneration payable by her for the work done by his Complainant.
3. He further stated that when he demanded for payment of remuneration the Accused after dodging the matter had finally issued a cheque bearing No. 138473, dt. 17/5/2011 for a sum of Rs.3,13,838/- drawn on IDBI Bank, Gandhinagar branch, Bangalore in favour of this Complainant with a request to present the said cheque for encashment. The Complainant by believing the words of 3 C.C.No.3148/2012 the Accused presented the said cheque before his banker Indian Bank, Electronic City branch, Bangalore for realization but he said cheque returned dishonoured with an endorsement "funds insufficient' and the same was informed to this Accused.
4. He further stated that as the Accused has failed to make payment of the cheque amount, the Complainant got issued the Legal Notice on 1.10.2011 by intimating dishonour of the cheque and also demanding for payment of the cheque amount through RPAD and UCP. The notice issued under RPAD returned unserved with a postal shara "Addressee left" on 13/10/2011 but however, the notice issued under UCP was duly served on this Accused. The Accused even inspite of receipt of Legal Notice neither chosen to make payment of the cheque amount nor she has replied the notice by denying the transaction. The Accused knowing fully well that she has no sufficient funds in her bank account had issued a bogus cheque and thereby, the Accused has committed an offence punishable u/Sec.138 of N.I. Act.
5. After recording sworn statement of the complainant the private complaint lodged by the complainant was registered as a criminal case, summons was issued as against the accused. The 4 C.C.No.3148/2012 accused appeared through her counsel and she was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
6. The complainant himself got examined as PW1 and He got produced 8 documents marked as Ex.P1 and Ex.P8 and closed his side of evidence.
7. After closure of the complainant side evidence, the accused statement u/Sec. 313 Cr.P.C. recorded and read over to the accused. Accused denied the entire incriminating evidence in toto and she intended to lead her evidence. She accused got herself examined as DW1 and she got produced two documents marked as Ex.D1 and Ex.D2 and closed her side of evidence.
8. I have heard the arguments on both sides and I have also perused the entire records.
9. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of NI Act beyond all reasonable doubts?
2. What order?
10. My findings to the above point are as under:
5 C.C.No.3148/2012
Point No. 1 In the Negative Point No. 2 As per final order for the following REASONS
11. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the Complainant stepped into the witness box and got examined as PW1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
12. PW1 deposed that on 12/7/2010 the Accused being the proprietrix of proprietary concern S.S. Enterprises had collected a sum ofrs.3,50,000/- from him under two different receipts and she had given him 18 seats I.D. to each of them and out of one of the labour contracting work in internet job at Rs.24,000/- per seat per month for the period of 11 months from 12/7/2010 by undertaking that she will pay the outstanding amount within 25 days after completion of the work. He deposed that he promptly completed his work and this Accused has failed to pay the remuneration payable to him for the work done by him and he demanded the payment of the remuneration the Accused after went on dodging the payment at finally issued a cheque bearing No. 138473, dtd. 6 C.C.No.3148/2012 17/5/2011 for a sum of Rs.3,13,838/- drawn on IDBI Bank Gandhinagar branch, Bangalore with a request to present the said cheque for encashment.
13. He further deposed that he presented the said cheque before his banker for endorsement. But the said cheque returned dishonoured with a endorsement "funds insufficient" on 5/9/2011 and the same was informed to this Accused. He further deposed that as the Accused has failed to make payment of the cheque amount, he got issued the Legal Notice on 1/10/2011 calling upon the Accused to make payment of the cheque amount and also by intimating the dishonor of the cheque through RPAD and UCP. He deposed that the notice issued under RPAD was returned unserved with a postal shara "Addressee left" but however, the notice issued under UCP was duly served on this Accused. He deposed that the Accused even inspite of receipt of Legal Notice, neither chosen to make payment of the cheque amount, nor she has replied the notice by denying the transaction. He deposed that the Accused knowing fully well that she has no sufficient funds in her bank account, had issued a bogus cheque only with an intention to cheat him and thereby, she had committed an offence.
7 C.C.No.3148/2012
14. PW1 in order to prove his case got produced the cheque marked as Ex.P1. He deposed that the signature found on Ex.P1 is that of this accused. He got identified the signature of this accused marked as Ex.P1(a). He got produced the bank endorsement marked as Ex.P2. He got produced copy of the legal notice along with RPAD receipt marked Ex.P3 and Ex.P4 respectively. He got produced the unserved postal cover marked as Ex.P.5 and the notice kept in the said cover is marked as Ex.P.5(a). He got produced two receipts issued by this Accused in his favour marked as Ex.P.6 and Ex.P.7. He got identified the complaint marked as Ex.P.8.
15. The accused has denied the entire case of the Complainant and denied the very fact that she is proprietrix of the S.S. Enterprises and she had given the internet job to this Complainant at the rate of Rs.24,000/- per seat per month for a period of 11 months on 12/7/2010 and accordingly, this Complainant had invested a sum of Rs.3,50,000/- in her Company and she admitting her liability to pay the remuneration payable to this Complainant, had issued her Ex.P.1 cheque and the same was bounced. The Accused has denied the testimony of PW1 and her learned Counsel subjected PW1 for encashment.
8 C.C.No.3148/2012
16. PW1 in his cross-examination stated that the S.S. Enterprises was previously existing at Kengeri and subsequently, in the year 2011 it was transferred to Kumbalgod and but he is not aware of the address of the Company at Kumbalgod. He has stated that for the first time he contacted the company for the internet job work in the month of December 2009 and after negotiations with this Accused after about one month, he started his internet job work. He has stated that there was no written agreement in between him with this Accused towards the internet job work. PW1 stated that in the month of January 2010, he had invested a sum of Rs.1,00,000/- in the Accused Company and again in the month of June 2010, he invested 1,50,000/- and subsequently he invested Rs.2,00,000/- in the company of this Accused but he is not remembered when exactly he invested the amount.
17. He further stated that to purchase one single I.D. he had invested a sum of Rs.24,000/- and likewise he had purchased 18 I.Ds. from this Accused. PW1 stated that he has no documents with him to prove that he has done internet job work to the company of this Accused and even he has no documents with him to prove that he had purchased 18 I.D.s from this Accused each amounting to Rs.24,000/-. Though PW1 has stated that he has maintained a ledger 9 C.C.No.3148/2012 with respect to the work done by him but the said ledger was given to this Accused for her signature but subsequently, she has failed to return the said document in his favour. This fact was categorically denied by the Accused.
18. The Accused denied the very fact hat this Complainant was working to her company and he had done the internet job work to her company after purchasing 18 I.D.s from her company each amounting to Rs.24,000/-. The Accused even denied the fact that she has taken the ledger maintained by this Complainant for her signature and subsequently, she failed to return the same to this Complainant. PW1 in his cross-examination except adducing the oral evidence that from the month of January 2010 for a period of 11 months, he has done the internet job to the Accused and he had purchased 18 I.D.s from this Accused and for each I.D. he had invested Rs.24,000/-, has not chosen to prove the same by adducing the documentary evidence before this court.
19. The Complainant except adducing the oral evidence that he had already received a sum of Rs.50,000/- from this Accused towards the outstanding amount and for the remaining balance amount, the Accused by admitting her liability to pay the 10 C.C.No.3148/2012 remuneration, had issued Ex.P.1 cheque, has not chosen to prove the same by adducing the documentary evidence before this court.
20. As I have discussed supra, the Accused has categorically denied the fact that this Complainant was working for her company and he has done internet job work to this company after purchasing 18 I.D.s from her company. In such situation, the initial burden is on this PW1 to prove that he has done internet job work to this Accused for a period of 11 months and he had purchased 18 I.Ds from this Accused and for each I.D., he had invested a sum of Rs.24,000/-. The PW1 in order to prove his initial burden except adducing the oral evidence, which has been categorically denied by this Accused, nothing has been placed before this court to prove his case. Though PW1 in his cross-examination stated that he had with him document to prove that he had invested a total sum of Rs.4,50,000/- to the Accused company with respect to purchase of I.D.s., but has not chosen to prove the same by adducing the documentary evidence before this court.
21. The Accused has taken up the defence that in the month of April 2011 there was a huge galata in her office as some of the publics of the locality by alleging that there are some 11 C.C.No.3148/2012 misappropriation in the company by her employees, forcefully trespassed into the company and they destroyed all the furnitures along with they have destroyed the ledgers and other documents kept in the company and even they have taken away the valuable documents kept by this Accused at her company for the day-to-day transaction and during that time, they have illegally taken away her cheque book and subsequently, this Complainant by misusing one of her cheque book, created and concocted the same for Rs.3,13,838/- and filed this false complaint. Though the Accused during the cross-examination of PW1 put her defence to PW1 by suggesting that there was a huge galata by the publics of locality in the month of April 2011 at the office of this Accused and they illegally trespassed into the office of the Accused and destroyed all the furniture of the office and also destroyed the valuable documents and ledger books kept by her at her company.
22. On the contrary, though PW1 admitted that he came to know about the said galata but he denied the suggestion that in the said galata the entire office furniture, valuable documents, ledger books, cheque books were destroyed by the publics of the locality. PW1 even admitted the suggestion that the notice issued by her as 12 C.C.No.3148/2012 per Ex.P.3 was not personally serve on this Accused. He admitted that as on 1/10/2011 the Accused was already shifted her company to Kumbalgod address and he has not sent the notice to the Kumbalgod address of this Accused. Though PW1 admitted the suggestion that the notice issued by him as per Ex.P.3 was not served on this Accused but however he has stated that he is not aware whether on 1/10/2011, this Accused with respect to criminal case, was arrested by the police and she was sent to judicial custody for a period of 8 months.
23. He denied the suggestion that he himself for his convenience, written all the contents of Ex.P.1 cheque and presented the same for encashment without the knowledge and consent of this Accused. He denied the suggestion that Ex.P6 and Ex.P7 receipts were not issued by this Accused and even she has not issued any receipts in his favour for having received the amount. He denied the suggestion that the Accused is not liable to pay the cheque amount as there was no contractual obligations on this Accused to pay the cheque amount and has no internet job work was done to this Accused. Thought he Accused has admitted fact that Ex.P.1 is belong to her bank account and even she admitted that Ex.P.1 (a) signature is that of her.
13 C.C.No.3148/2012
24. However, she has taken up the specific defence that during the galata in the month of April 2011 by the publics of the locality, they have taken her duly signed blank cheque book and other valuable documents kept by her at her company and this Complainant misused her cheque for Rs.3,13,838/- and filed this false complaint, even though she was not liable to pay the cheque amount. In such situation, the burden is on this PW1 to prove that he had done the internet job work to this Accused and he purchased 18 I.Ds. from this Accused and towards each I.D., he had invested a sum of Rs.24,000/-. admittedly, PW1 in order to prove this fact, except adducing the oral evidence, which has been categorically denied by this Accused, nothing has been placed before this court to believe his testimony and to believe that the Ex.P.1 cheque was issued by this Accused towards the discharge of her liability to pay the remuneration to this Complainant.
25. Likewise, the PW1 except adducing the oral evidence that he had invested a sum of Rs.4,50,000/- to the company of this Accused towards the purchase of I.D. under the internet job work, has not chosen to prove the same by adducing he documentary evidence before this court. Admittedly, the initial burden is on this PW1 to prove that he had invested a sum of Rs.4,50,000/- at the 14 C.C.No.3148/2012 company of this Accused and he had purchased 18 I.Ds. from the company of this Accused. Admittedly, PW1 except adducing the oral evidence that in between period of January 2010 for about 11 months, he had done internet job work to this Accused, has not disclosed the exact date of work done by him and the exact amount invested by him on each of the work done by him.
26. Admittedly, PW1 neither in his complaint averments nor in his affidavit filed in lieu of oral evidence nor in his notice has disclosed this fact by furnishing the details of date and amount invested by him. The entire case of the Complainant is silent with respect to the date of transaction and also about the date of investment of amount. In such situation, without any evidence before this court, it is not possible to believe the testimony of PW1 that as on date of Ex.P.1 cheque there existing a legally recoverable amount or other liability on this Accused and she by admitting her liability and in order to discharge her liability, had issued Ex.P.1 cheque and the same was bounced.
27. As I have discussed supra, the PW1 except adducing the oral evidence that he had invested a sum of Rs.4,50,000/- in the company of the Accused towards the internet job work, which has 15 C.C.No.3148/2012 been categorically denied by this Accused, nothing has been placed before this court to believe his testimony and to prove the transaction and also to prove that as on date of Ex.P.1 cheque, there existing a legally recoverable amount or other liability on this Accused. Moreover, even according to PW1, the notice issued by him as per Ex.P.3 was not personally served on this Accused and even according to PW1 the notice issued as per Ex.P.3 was returned unserved with a postal shara "addressee vacated the premises as such it was returned to the sender.
28. PW1 except adducing the oral evidence that he has also issued notice under UCP and the same was duly served upon this Accused, has not chosen to prove the same by adducing the documentary evidence before this court. Admittedly, the PW1 has not produced UCP receipt before this court to prove his testimony. The Accused taken up specific defence that she was in judicial custody in some other criminal case. In such situation, the case of the Complainant that the Accused even inspite of receipt of Legal Notice, neither chosen to make payment of the cheque amount nor she has sent her reply by denying the transaction, cannot be acceptable and it holds no merit. No notice was served on this 16 C.C.No.3148/2012 Accused as required u/Sec 138 of N.I. Even on this count, the case of the Complainant, is not maintainable and it holds no merit.
29. The PW1 except adducing the oral evidence that Ex.P.6 and Ex.P.7 documents issued by this Accused after he invested a sum of Rs.4,50,000/- has not chosen to prove the said documents by producing his bank extract and other documents before this court. Per contra, the Accused categorically denied the issuance of Ex.P.6 and Ex.P.7 documents and also denied the very fact that she after putting her signature on all these documents, issued the same in favour of PW1. In such situation, the burden is heavily on this PW1 to prove that he actually deposed the amount disclosed in Ex.P.6 and Ex.P.7 document and it is only after he invested the said amount the Accused, had issued Ex.P.6 and Ex.P.7 documents after putting her signature on the said document. PW1 in order to prove this fact, has not chosen to produce the documents by adducing cogent and convincing evidence before this court.
30. However, the Accused in order to prove her defence and also to rebut the presumption available tot his Complainant u/Sec.139 of N.I. Act, got herself examined as DW1. She categorically deposed that she was running company under the 17 C.C.No.3148/2012 name S.S. Enterprises Company in between the year 2002-2011. She deposed that, before his company for taking data entry request there was a written lease contract in between investors and her company. She deposed that there was no such written lease contract in between this Complainant and her company. She deposed that all the transaction relating to her company were through written agreement as her company was a duly registered company. She deposed that previously her company was situated at Kengeri in between 2002-2011 and subsequently in the year 2010, they have also opened one more branch at Kumbalgod Industrial area.
31. She deposed that during the year 2011, there was a huge galata in her company as some of the localites and publics have illegally trespassed into her company and they destroyed all the furnitures kept in the company and they have also destroyed the ledgers, register books and other valuable documents including cheque book and account books and subsequently, they have also lodged a criminal case against them and it was registered against her and her company people. She deposed that with respect to the said criminal case, police arrested her and she was sent to judicial custody for about 8 months and she was in judicial custody. She 18 C.C.No.3148/2012 deposed that she has not received the notice issued by this Complainant as during that time she was in judicial custody and only after she released from the judicial custody, she came to know about the fact that during the galata, the cheque books were thefted from her office and as such she could not able to file a separate complaint against this Complainant for missing her cheque.
32. She deposed that she always used to keep her duly signed blank cheque and blank receipts in her office for their day- to-day business work and this Complainant, by misusing duly signed blank cheque and receipts, created the same as Ex.P.1, Ex.P.6 and Ex.P.7 and filed this false complaint even though she was not liable to pay the cheque amount. She deposed that she could not able to lodge a complaint against the general public of the locality, who made galata against her company as during that time she was at Shimoga and moreover, the police have refused to receive her complaint and to take action.
33. She deposed that her office staff informed her about the galata through telephonic message and subsequently, she rushed to her company. She deposed that as there was a life threat from the localites of the area, she closed down her business at Kengeri. She 19 C.C.No.3148/2012 deposed that she has not issued Ex.P.1 cheque towards discharge of her liability in favour of this PW1 and even she was not liable to pay the cheque amount to this Complainant much less amount disclosed in Ex.P.1. She deposed that neither she nor her company had ever made business transaction with this Complainant. She got produced the certified copy of the order sheet of criminal case No.58/2011 to prove that she was in judicial custody for a period of 8 months marked as Ex.D1. She got produced the Registration Certificate of her company along with Form No.18, No.32 and Form No.1 with Memorandum of Association and Certificate of Incorporation marked as Ex.D2. She deposed that the Complainant only with an intention to make wrongful gain for himself and to cause loss to her, filed this false complaint even though she is not liable to pay any amount to him. DW1 prays to dismiss the complaint.
34. The learned Counsel for the Complainant subjected DW1 for cross-examination by denying her testimony. On the contrary, the DW1 in her cross-examination denied the entire suggestions put to her and denied the fact that she herself after putting her signature on Ex.P.1 by admitting her liability to pay the remuneration amount to PW1 amounting to Rs.3,13,538/-, issued Ex.P.1 cheque in favour 20 C.C.No.3148/2012 of PW1. DW1 in her cross-examination denied the suggestion that she is proprietrix of the company and she is the sole proptrietrix of the company. She has categorically deposed that her company is a registered company and she is one of the directors to the company and along with her, there was one more Director to the company and three Managers were there.
35. She stated that she cannot identify and depose from how many companies she had purchased data entry to her company. She has stated that as there was a written contract in between her company with the assistance, who are entering data entry, as per contract, she was paying remuneration amount for the work done by them. She has stated that when the galata took place in her company, she was not present on the spot and as such she was not remembered when exactly galata was took place and for what time. She has stated that some of the localites have demand to pay hafta and as she refused to give money to them, they made galata against her company and lodged a complaint against her and her four members of the staff, for which she case was registered and she was arrested and sent to judicial custody. Even though DW1 admitted the signature found on Ex.P.1 marked as Ex.P.1(a) is that of her. On 21 C.C.No.3148/2012 the contrary, she has categorically denied the suggestion that she herself after writing all the contents of Ex.P.1 cheque, issued the same in favour of this PW1 towards the payment of the remuneration amount.
36. She denied the suggestion that she herself after receipt of the amount disclosed in Ex.P.6 and Ex.P.7, issued the same in favour of this PW1. Even though she admitted her signature on the said documents but she has categorically denied the execution of Ex.P.6 and Ex.P.7 documents and the Complainant has invested huge sum in her company and he has purchased I.Ds. from her company. She denied the suggestion that even though she was liable to pay the cheque amount, she only with an intention to ran way from her liability , is deposing false before this court. Though DW1 except adducing the oral evidence that there was a huge galata in her company by the local people of the area and they destroyed all the furnitures, valuable books pertaining to accounts and registers of the company, cheque books and receipt books, has not chosen to prove the same by adducing the documentary evidence before this court.
22 C.C.No.3148/2012
37. On the contrary, admittedly, the burden is on this PW1 to prove that this Accused after admitting her liability to pay the remuneration amount to this PW1, had issued Ex.P.1 cheque in his favour. As I have discussed supra, the Complainant in order to prove this fact has not chosen to produce any piece of evidence before this court nor he has proved that he had invested the amount before the Accused company as per Ex.P.6 and Ex.P.7.
38. As I have discussed supra, the Complainant during the cross-examination of DW1, except putting some suggestions to her that she has issued Ex.P.1 cheque after this Complainant was completed his data entry work after purchasing I.Ds. and she towards the payment of the remuneration amount, had issued Ex.P.1 cheque, which has been categorically denied by DW1, nothing has been elicited from her mouth to disbelieve her testimony and to discard her evidence.
39. As I have discussed supra, the initial burden is always on this Complainant to prove the existence of debt other liability as on date of Ex.P.1 cheque on this Accused and this Accused by admitting her liability, had issued Ex.P.1 cheque. As I have discussed supra, the Complainant in order to prove this fact, 23 C.C.No.3148/2012 except adducing the oral evidence that he had invested a huge amount of Rs.4,50,000/- in the company of this Accused to purchase I.D. for the data entry work and towards the payment of the remuneration amount, the Accused had issued Ex.P.1 cheque, has not chosen to prove the same to the satisfaction of the court.
40. As I have discussed supra, the Complainant without producing the document before this court that he had done the data entry work to this Accused, after purchasing I.Ds. from her company and invested huge amount of Rs.4,50,000/- in the company of this Accused, has filed this case by claiming the cheque amount from the Accused, which is not believable and acceptable. Moreover, the PW1 has failed to convince this court that he had the financial capacity to invest huge amount of Rs.4,50,000/- before this Accused at her company. The Complainant except adducing the oral evidence that he had invested huge amount at the company of this Accused, has not chosen to prove the same by adducing the documentary evidence before this court. The Complainant even did not chosen to claim interest on the invested amount even though according to the PW1 the transaction took place between him with this Accused is a commercial transaction.
24 C.C.No.3148/2012
41. Admittedly, the Complainant has not demanded any interest on the invested amount. Even this fact creates a doubt in the mind of the court about the case of the Complainant and also about the conduct of the Complainant. The Complainant has not chosen to clear all the doubts arosed in the mind o the court by adducing the cogent and convincing evidence before this court. It is well settled principle of law that presumption u/Sec.139 of N.I. Act is available to this Complainant only with respect to issuance of cheque towards the repayment of debt or to her liability on this Accused. However, the burden is on this Complainant to prove the existence of debt or other liability on this Accused as on the date of Ex.P.1 cheque to the satisfaction of the court.
42. Here in this case, the Complainant except adducing the oral evidence that he had invested a huge amount of Rs.4,50,000/- in the company of this Accused and towards the payment of the remuneration amount, the Accused has issued Ex.P.1 cheque, has not chosen to prove the same to the satisfaction of the court. The Complainant has utterly failed prove the existence of legally recoverable amount or other liability on this Accused as on date of Ex.P.1 cheque and also to prove that the Ex.P.1 cheque was issued 25 C.C.No.3148/2012 towards the discharge of her liability to pay the remuneration amount.
43. As I have discussed supra, the Complainant has utterly failed to discharge his initial burden to the satisfaction of the court by adducing convincing evidence before this court. The Complainant has failed to prove that this Accused is liable to pay the cheque amount disclosed in Ex.P.1. In such situation, the very complaint filed by the Complainant against this Accused for the offence punishable u/Sec.138 of N.I. is not maintainable and it holds no merit.
44. The learned Counsel for the Complainant has vehemently argued that the Accused has admitted her Ex.P.1 cheque and also admitted her signature found on Ex.P.1 cheque and even she admitted the Ex.P.6 and Ex.P.7 documents are relating to her company and even she admitted her signature on the said documents. He further arguments that the Accused except taking the defence that her cheque books and receipt books along with other valuable documents were destroyed and thefted from her office during the time of galata, has not chosen to prove the same to 26 C.C.No.3148/2012 the satisfaction of the court by adducing the documentary evidence before this court.
45. He argued that there is a presumption available to this Complainant u/Sec.139 of N.I. Act that the Accused in order to discharge her legally recoverable debt or other liability had issued Ex.P.1 cheque and the same was bounced. He has further argued that merely because the notice was not served on this Accused, it does not become automatic that the Accused is entitle for acquittal and even though cheques and other documents were pertaining to her and she issued the said documents in favour of this Complainant. The arguments canvassed by the learned Counsel for the Complainant, cannot be acceptable and it holds no merit.
46. The section 138 (b) of N.I. Act is a mandatory provision of law and unless the Complainant has served the notice to the Accused as required under law, the very complaint filed u/Sec.138 of N.I. Act, is not maintainable. Moreover, the initial burden is on this Complainant to prove that he had invested a huge sum of Rs.4,50,000/- in the company of this Accused towards the data entry and towards the data entry he purchased 18 I.D.s from the Accused and this Accused was liable to pay a sum of Rs.3,13,538/ in favour 27 C.C.No.3148/2012 of this Complainant. Unless the Complainant prove the existence of liability on this Accused as on date of Ex.P.1 cheque, it does not become automatic that the Accused by admitting her liability might have issued Ex.P.1 cheque towards the repayment of her liability. In such situation, the arguments canvassed by the learned Counsel for the Complainant, cannot be accepted and it holds no merit.
47. Likewise, his further arguments that the Accused only with an intention to ran away from her liability to pay the cheque amount has taken up the false defence before this court and therefore, the defence has to be discarded, is also not convinced this court.
48. As I have discussed supra, the Complainant except adducing the oral evidence that the had invested a huge amount of Rs.4,50,000/- in the company of this Accused and towards the discharge of liability, the Accused has issued Ex.P.1 cheque, has not chosen to prove the same by adducing the documentary evidence before this court. The burden is on this PW1 to prove his financial capacity to invest huge amount of Rs.4,50,000/- at the company of the Accused. Merely because, the PW1 deposed that he invested a huge amount at the company of this Accused and he had purchased 28 C.C.No.3148/2012 18 I.D.s it does not become automatic that the Complainant has proved his case to the satisfaction of the court. The arguments canvassed by the learned Counsel for the Complainant is not convinced this court and it holds no merit.
49. Per contra, the Learned Counsel for the Accused has vehemently arguments that the very complaint filed by the Complainant is not maintainable as the Complainant has not complied the mandatory provisions of Sec.138 of N.I. Act by serving the notice to this Accused before filing of this complaint. He has argued that the Accused by adducing the documentary evidence before this court proved that as on date of Ex.P.3 notice, the Accused was not resided in the said address and she was already closed down her business and even she was in a judicial custody with respect to some other criminal case. He argued that the notice was not served on this Accused as required under law, complaint is not maintainable and only on this ground itself the complaint can be dismissed. The arguments canvassed by the Learned Counsel for the Accused is fully convinced this court.
50. Likewise, the Complainant except adducing the oral evidence that he had the business transaction with this Accused and 29 C.C.No.3148/2012 he had invested a huge sum of Rs.4,50,000/- with this Accused by taking internet job work and he had already purchased 18 I.D.s from this Accused amounting to Rs.24,000/- per I.D. and In such situation, mere a oral testimony of PW1 is not sufficient and believable, is also convinced this court. He argued that the initial burden is on this Complainant to prove the existence of debt or other liability on this Accused as on date of Ex.P.1 cheque and unless he discharge is burden to the satisfaction of the court by adducing the documentary evidence before this court, the burden will not shift on this Accused to rebut the presumption available to this Complainant u/Sec.138 of N.I. Act is also fully convinced this court.
51. Here in this case, the Complainant except adducing the oral evidence that the Accused in order to discharge her liability and to pay the remuneration amount, had issued Ex.P.1 cheque for Rs.3,13,538/- has not chosen prove the same by adducing the documentary evidence before this court. In such situation, the arguments canvassed by the Learned Counsel for the Accused is fully convinced this court. The Learned Counsel for the Accused further argued that the Accused need not prove his defence beyond all reasonable doubts. He argued that the Accused can very well 30 C.C.No.3148/2012 discharge her burden by preponderance of probabilities and even by cross-examining PW1 by eliciting the truth from his mouth. He argued that the Accused successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act and by adducing his evidence before this court and even by cross- examining PW1. Even this arguments is also fully convinced this court.
52. Admittedly, there is no burden on this Accused to prove her defence beyond all reasonable doubts. The Accused can very well discharge her burden by preponderance of probabilities and she has successfully rebutted the presumption available to this Complainant u/Sec.139 of N.I. Act . The Learned Counsel for the Accused in support of his arguments has relied upon the judgement reported in 2012 (1) DCR 746 (Supreme Court of India) between Aneeta Hada Vs. M/s. Godfather Travels & Tours Pvt. Ltd wherein it is held that "An authorized signatory of a company becomes a drawer as he has been authorized to do so in respect of the account maintained by the company."
2012 (1) DCR 770 (Supreme Court of India) between Sangeetaben Mahendrabhai Patel Vs. State of Gujarat and another wherein it is held that;
31 C.C.No.3148/2012
"Test to ascertain whether the two offences are the same is not identity of allegations but the identify of the ingredients of the offence- Motive for committing offence cannot be termed as ingredient of offences to determine the issue of double jeopardy - Plea of autrefois acquit is not proves unless it is shown that judgment of acquittal in the previous charge necessarily involves an acquittal of latter charge."
The judgment relied by the Learned Counsel for the Accused is applicable to the present case on hand and also helpful to the defence of the Accused.
53. As I have discussed supra, the Complainant has utterly failed to prove his case and prove that this Accused has committed an offence punishable u/Sec. 138 of N.I. Act and therefore he is liable for sentence. The oral and documentary evidence adduced before this court by the Complainant is not sufficient and convincing to bring home the guilt of the Accused beyond all reasonable doubts. The entire burden is on this Complainant to bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. Unless the Complainant discharge his initial burden, no burden will shift on this Accused to rebut he presumption available to this Complainant u/Sec.139 of N.I. Act.. The Complainant has utterly failed to prove that the Accused has 32 C.C.No.3148/2012 committed an offence punishable u/Sec. 138 of N.I. Act and therefore, he is liable for sentence. In such situation, the benefit of doubt goes in favour of this Accused. Hence, by taking into consideration the facts and circumstances and evidence available on record, I answer Point No.1 in the Negative.
54. Point No.2: In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting U/s.255(1) of Cr.P.C. the accused is hereby acquitted for the offence punishable U/s.138 of NI Act.
The bail bond and surety bonds of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by him is verified and then pronounced by me in the Open Court on this the 2nd day of March, 2015) (ISHRATH JAHAN ARA) XIX ADDL.CMM Bangalore ANNEXURE:
Witnesses examined on behalf of the Complainant:
P.W.1 Sri. Syed Zabiulla
Witnesses examined on behalf of the Accused:
D.W.1 Smt. R.P. Umadevi
33 C.C.No.3148/2012
Documents marked on behalf of the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the accused
Ex.P.2 Bank endorsement
Ex.P.3 Copy of the legal notice
Ex.P.4 RPAD receipt
Ex.P.5 Unserved postal cover
Ex.P.5(a) Notice kept in the cover
Ex.P.6 & Ex.P.7 Two receipts issued by this Accused
Ex.P.8 Complaint
Documents marked on behalf of the Accused:
Ex.D1 Certified copy of the Order sheet of criminal case
No.58/11
Ex.D2 Copy of Registration Certificate
XIX ACMM, B'lore.