Bangalore District Court
Mr. Fatheraj Lunkar vs Mr. Mukesh D. Rawath on 1 March, 2016
THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 1st day of March, 2016
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M.BANGALORE.
Case No: C.C No.18838/2012
Complainant: Mr. Fatheraj Lunkar
S/o. Chuganmull Lunkar
Aged Major,
R/at New No.20, Old No.33,
Wali Vilas Road,
Vasavi Convention Hall,
Basavanagudi,
Opp. Metlife,
Bangalore -560 004.
Accused: Mr. Mukesh D. Rawath
Prop. Beena Office Solutions,
No.45, Xavier Layout,
2nd Cross, Austin Town,
Bangalore -560 047.
Offence complained of: U/s.138 of N.I. Act
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found not guilty
Date of order: 1st March 2016
JUDGMENT
The complainant has filed this complaint u/s. 200 of Cr.P.C. against the accused for the offences punishable u/s. 138 of NI Act.
2. The brief fact of the complainant is that;
2 C.C. 18838/2012The Complainant is into a business of Wholesale House keeping items, Hygiene Care Products, Import Export Licences and supplying housekeeping materials to industries and other establishments. The accused is also doing the same business and he was regularly purchasing the required materials from the Complainant and as such both the Complainant and accused are having business transactions. The accused out of acquaintance, approached the Complainant for the financial assistance of Rs.12,00,000/- for his business purpose stating that he had got big business order and required the said amount to purchase the materials and he would return the said amount within 6 months as soon as he received the payment from the said business. He further stated that the Complainant by considering the close relationship and friendship, had advanced a sum of Rs.12,00,000/- to this accused in the month of December and January by way of cash in installments. The accused agreed to repay the same within 6 months. Subsequently, after receipt of the loan amount, the accused has paid some amount by stating that the remaining balance amount would be paid within stipulated time.
3. He further stated that the accused approached the Complainant and stated that since he was unable to repay the remaining amount immediately, had issued 4 post-dated cheques bearing No.000025, dtd. 15.6.2010 for Rs.3,00,000/-, cheque bearing 3 C.C. 18838/2012 No.000026 dtd. 15.7.2010 for Rs.3,00,000/-, cheque bearing No.000027 dtd. 15.8.2010 for Rs.3,00,000/- and a cheque bearing No.000028 dtd. 15.7.2010 for Rs.2,68,254/- all were drawn at Kotak Mahindra Bank, Majestic Branch, Bangalore with a request to present the said cheques for encashment and it will be honoured on presentation. The Complainant submits the accused requested him not to present the cheque bearing No.000025 for encashment since he had still not arranged for the funds.
4. It is further submitted that, the Complainant presented the said cheque bearing No.000025 before his banker The Royal Bank of Scotland, Bangalore, for encashment but the said cheque returned dishonoured with an endorsement "Account closed" on 10.12.2010 and the same was informed to this Accused.
5. The Complainant further stated that the accused has failed to make payment of the Cheque amount, therefore the Complainant got issued the Legal Notice on 7.1.2011 through RPAD and also by Certificate of Posting, calling upon the Accused to pay the Cheque amount within 15 days from the date of receipt of Legal Notice and the said notice was duly served upon the accused on 8.1.2011. Even inspite of receipt of Legal Notice, the Accused has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the 4 C.C. 18838/2012 transaction. The accused knowing fully well that his account was already been closed, had issued a bogus cheque, only with an intention to cheat the Complainant and thereby, accused has committed an offence punishable under section 138 of N.I. Act.
6. After recording of 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 accused appeared through his Counsel and he was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claimed to be tried.
7. The Complainant got examined as PW1 and he got produced 4 documents marked as Ex.P.1 to Ex.P.4 and closed his side of evidence.
8. After closure of complainant side evidence, accused statement u/s.313 Cr.P.C. was dispensed as the accused was remained absconded and moreover, it is a summary trial converted to Summons Case. The accused has not led any evidence from his side.
9. I have heard the arguments and perused the documents.
10. 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?5 C.C. 18838/2012
11. My findings to the above point are as under:
Point No. 1 In the Negative
Point No. 2 As per final order
for the following
REASONS:
12. 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, Complainant stepped into the witness-box and got examined as PW1 and filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
13. He deposed that the accused is in a business of Wholesale House keeping and supplying housekeeping materials to industries and other establishments. He deposed that the accused is also doing the same business and he was regularly purchasing the required materials from him and as such he has a business transactions with the accused. . He deposed that the accused out of acquaintance, approached him for the financial assistance of Rs.12,00,000/- for his business purpose stating that he had got big business order and required the said amount to purchase the materials and he would return the said amount within 6 months as soon as he received the payment from the said business. He deposed that he by considering the close relationship and friendship, had advanced a sum of Rs.12,00,000/- to this accused in the month of 6 C.C. 18838/2012 December and January by way of cash in installments. He deposed that the accused agreed to repay the same within 6 months and subsequently, after receipt of the loan amount, the accused has paid some amount by stating that the remaining balance amount would be paid within stipulated time.
14. He further deposed that the accused approached him and stated that since he was unable to repay the remaining amount immediately, had issued 4 post-dated cheques bearing No.000025, dtd. 15.6.2010 for Rs.3,00,000/-, cheque bearing No.000026 dtd. 15.7.2010 for Rs.3,00,000/-, cheque bearing No.000027 dtd. 15.8.2010 for Rs.3,00,000/- and a cheque bearing No.000028 dtd. 15.7.2010 for Rs.2,68,254/- all were drawn at Kotak Mahindra Bank, Majestic Branch Bangalore with a request to present the said cheques for encashment and it will be honoured on presentation. He deposed that the accused requested him not to present the cheque bearing No.000025 for encashment since he had still not arranged for the funds.
15. He further deposed that, he presented the said cheque bearing No.000025 before his banker for encashment but, the said cheque returned dishonoured with an endorsement "Account closed"
on 10.12.2010 and the same was informed to this Accused.7 C.C. 18838/2012
16. He further deposed that that as the accused has failed to make payment of the Cheque amount, therefore he got issued the Legal Notice on 7.1.2011 through RPAD and also by Certificate of Posting, calling upon the Accused to pay the Cheque amount within 15 days from the date of receipt of Legal Notice and the said notice was duly served upon the accused on 8.1.2011. He deposed that even inspite of receipt of Legal Notice, the Accused has neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction. He deposed that the accused knowing fully well that his account was already been closed, had issued a bogus cheque, only with an intention to cheat him and thereby, accused has committed an offence.
17. PW1 in order to prove his case, got produced the Cheque issued by this Accused marked as Ex.P.1. He deposed that the signatures found on Ex.P.1 is that of this Accused, he got identified the signature of this Accused marked as Ex.P.1(a). He got produced two bank endorsements marked as Ex.P2 and Ex.P3. He got produced Copy of Legal Notice marked as Ex.P.4.
18. Even though the Accused has appeared before this court through his Counsel, but he did not chosen to contest the proceedings by cross examining PW1 even in spite of sufficient opportunities. The 8 C.C. 18838/2012 accused has utterly failed to the cross examining the PW1 by denying his testimony. As such by an order dtd.21.07.2014, the cross examination of PW1 was taken as "nil" and proceeded the matter further. Even on subsequent dates the accused neither came forward to cross examine PW1 nor he has challenged the evidence of PW1. As such the entire case of the complainant along with his oral and documentary evidence remained unchallenged in toto.
19. Even though the entire testimony of PW1 along with documentary evidence marked as Ex.P.1 to Ex.P4 remained unchallenged in toto from the accused, however, admittedly, the Complainant himself has not led his further examination in-chief. No doubt, PW1 has stated that he has no further examination-in-chief and therefore, the matter was posted to cross-examination. On the contrary, admittedly, the Complainant has not produced any documents before this court to prove that the notice issued by Ex.P4 was duly served upon this accused and even inspite of receipt of Legal Notice, the accused neither chosen to make payment of the cheque amount nor he has sent his reply by denying the transaction.
20. Moreover, PW1 in his notice issued as per Ex.P4 clearly stated that he presented the cheque bearing No.000028 dtd. 15.09.2010 for Rs.2,68,254/- drawn at Kotak Mahindra Bank, Majestic branch, 9 C.C. 18838/2012 Bangalore before his banker for encashment and the same cheque was bounced. However, in the complaint averments, the Complainant has stated that he presented the cheque bearing No. 000025 dtd. 15.6.2010 for Rs.3,00,000/- drawn at Kotak Mahindra Bank, Majestic branch, Bangalore before his banker for encashment and the said cheque was dishonoured. However, the PW1 got produced the cheque bearing No.000028 dtd. 15.09.2010 for Rs.2,68,254/- drawn at Kotak Mahindra Bank, Majestic branch, Bangalore before this court marked as Ex.P.1. In the examination-in-chief the PW1 has disclosed the cheque number as 220029 dtd. 15.9.2010 for Rs.3,00,000/- drawn at Kotaka Mahindra Bank, Majestic branch, Bangalore which is fully contrary to each other. The oral evidence is contrary to the documentary evidence adduced before the court. Merely because, the accused has not challenged the testimony of PW1 and the entire case of the Complainant remained unchallenged, it does not become automatic that the Complainant has proved the guilt of the accused beyond all reasonable doubts.
21. As I have discussed supra, no document has been produced to prove the service of notice to the accused. Even on this count, the complaint is not maintainable. It is well settled principle of law Sec.138(b) of N.I. Act, is a mandatory provision and before filing the complaint, the Complainant has to comply the provision by sending 10 C.C. 18838/2012 notice as required under law, calling upon the accused to make payment of the cheque amount within 15 days from the date of service of notice. Here in this case, except oral testimony of PW1 that the notice was duly served on the accused, he has not chosen to produce the documents before this court to corroborate this testimony.
22. No doubt, it is well settled principle of law that entire burden is on this Accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/s. 139 of N.I. Act and this accused in order to rebut the presumption available u/s.139 of N.I. Act, has not chosen produce any piece of documents before this Court. There is no evidence from the side of the Accused to believe his defense. However, as I have discussed supra, the oral and documentary evidence adduced before this court by PW1 himself, is contrary to each other, which creates a serious doubt in the mind of court about the case of the Complainant. The Complainant has not cleared all the doubts aroused in the mind of court by adducing cogent and convincing evidence before this court.
23. As I have discussed supra, the Complainant has utterly failed to prove his case and to prove that this Accused has committed an offence punishable u/Sec.138 of N.I. Act. The oral and documentary evidence adduced before this court by the Complainant is not sufficient 11 C.C. 18838/2012 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 is discharge his initial burden, no burden will shift on this Accused to rebut the presumption available to this Complainant u/Sec.139 of N.I Act.. The Complainant has utterly failed to prove that the Accused had committed an offence punishable u/Sec.138 of N.I. Act. and therefore he is liable for punishment. 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.
24. 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 her is verified and then pronounced by me in the Open Court on this the 1st day of March, 2016) (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bangalore.12 C.C. 18838/2012
ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. Fatheraj Lunkar
Witneses examined on behalf of the Accused:
Nil
Documents marked on behalf of the Complainant:
Ex.P.1 Cheque
Ex.P.1(a) Signature of the Accused
Ex.P.2 & Ex.P3 Bank endorsements
Ex.P.4 Copy of the Legal Notice
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore
13 C.C. 18838/2012