Bangalore District Court
M/S. Cg Parivar Global Vision vs Sri. Gajendra Bhan Singh on 14 September, 2018
C.C.NO.25038/2017
IN THE COURT OF THE XXII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present: Smt. HEMA PASTAPUR
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 14th day of September 2018
C.C.No.25038/2017
Judgment under section 355 of Code of Criminal Procedure
Complainant : M/s. CG Parivar Global Vision,
3rd floor, ND Elite,
No.871, 2nd stage, West of Chord road,
Basaveshwar Nagar,
Bengaluru - 560086.
Represented by its authorized signatory
Sri. Rudresh Navalgi, Major,
Aged about 35 years.
(By Shri H. B. V. Patil, Advocate)
V/s
Accused : Sri. Gajendra Bhan Singh,
Proprietor, Jaipur Gem and Jewels Paradise,
No.3, 1st floor, above Trust Medicals,
Near Shanthi Sagar Hotel, RT Nagar,
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C.C.NO.25038/2017
Main road, Bangalore,
Aged about 50 years.
(By Shri Chand Pasha, Advocate)
JUDGMENT
That, the complainant has filed the private complaint under section 200 of Code of Criminal Procedure, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the brief facts of the present case are as under:-
1. That, the complainant is a division in a channel namely 'Saral Jeevan' undertaking and providing entertainment and knowledge to the public in general and the accused is doing the business of trading of gems and other precious stones and provides the stones and gems to his customers according to their date of birth. That, the accused for advertisement of his business in said channel had approached the complainant and the complainant had agreed to telecast the said advertisement in it's channel for the entire month of April 2017 and the accused had agreed to pay Rs.9,000/- for per slot. That, the complainant as per the agreement had telecasted the 2 C.C.NO.25038/2017 said advertisement in said channel and the accused as per the agreement is liable to pay Rs.2,07,00/- to the complainant. That, the accused to discharge his liability had issued in favour the complainant the three cheques bearing No.058577 dated:-
28.04.2017 for a sum of Rs.69,000/-, No. 058578 dated:-07.05.2017 for a sum of Rs.69,000/- and No.058579 dated:-12.05.2017 for a sum of Rs.69,000/-. That, the complainant had presented the cheque No.058577 dated:-28.04.2017 for a sum of Rs.69,000/- for encashment in HDFC Bank, Basaveshwaranagar branch, Bengaluru and on 27.07.2017 said cheque was returned with the shara as 'Funds insufficient'. That, the complainant for the aforesaid acts of the accused on 16.08.2017 had issued the Legal notice to him and the same was duly served upon him on 18.08.2017. That, as the accused in spite of receiving the said notice failed to comply with the terms of the same the complainant has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant, this court registered the case in concerned register and took the cognizance for the offence punishable under section 138 of the Negotiable 3 C.C.NO.25038/2017 Instruments Act and thereafter, recorded the sworn statement of the said authorized signatory of the complainant and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to him. That, the accused in pursuance of said summons appeared before this Court through his Learned counsel and he was enlarged on bail. That, substance of accusation of the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to tried. That, after completion of complainant side evidence the statement of the accused as contemplated under section 313 of the Code of Criminal Procedure, has recorded and read over him in language known to him and he denied all incriminating evidence appearing against him.
3. That, I have heard the arguments and perused the materials placed on record. That, the complainant has submitted the written arguments and I have gone through the same. That, the following points arise for My consideration and determination:-
1. Whether the complainant has proved that, the accused to discharge his legally enforceable debt had issued in it's favour a 4 C.C.NO.25038/2017 Cheque bearing No.058577 dated:-28.04.2017 for a sum of Rs.69,000/- drawn on Axis Bank Ltd., R. T. Nagar branch, Bengaluru?
2. Whether the complainant has further proved that, the said cheque was dishonoured as 'Funds insufficient' and thereby the accused has committed the offence punishable under section 138 of the Negotiable Instruments Act?
3. What order?
4. That, the complainant to substantiate its aforesaid contentions has got examined it's authorized signatory Shri Rudresh Navalgi as PW1 and got marked the documents at EXs.P1 to 8 and closed its side.
That, the accused to substantiate his contentions has deposed himself as DW1 and got marked the document at EX.D1 and closed his side.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the NEGATIVE Point No.2 :- In the NEGATIVE Point No.3 :- As per the final order for the following:- 5
C.C.NO.25038/2017 REASONS
6. Point No.1:- It is specific contention of the complainant that, the accused is liable to pay to it's company a sum of Rs.2,07,000/- and the accused to discharge his legally enforceable debt had issued in it's favour three Cheques No.058577 dated:-28.04.2017 for a sum of Rs.69,000/- - EX.P2, No. 058578 dated:-07.05.2017 for a sum of Rs.69,000/- and No.058579 dated:-12.05.2017 for a sum of Rs.69,000/-.
7. It is pertinent to note here that, the accused in his examination- in-chief has specifically deposed that, for the telecast of his said programme in said channel he issued in favour of the complainant three cheques as a security and thereafter, the complainant for the telecast of his said programme had collected from him the entire amount and issued the receipts. That, the accused has further contended that the complainant in spite receiving the entire amount from him by misusing his said cheques filed the present false case against him. That, the accused in his evidence has got marked the print out of Release order at EX.D1.
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C.C.NO.25038/2017
8. It is pertinent to note here that, the Learned counsel for the accused has vehemently canvassed the arguments that the PW1 is having no personal knowledge of the present case and his evidence cannot be believed and accepted. That, the Learned counsel for the accused in support of his said contentions has mainly placed his reliance on following decisions:-
1. A. C. Narayan -vs- State of Maharashtra and another with G. Kamalakar -vs- Surana Securities Limited and another, reported in (2015) 12 Supreme Court Cases 203 wherein it has held that the power - of - attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.
2. Ram Prasad -vs- Hari Narain and Ors., AIR 1998 Raj 185 where in it has held that power of attorney holder of a party can appear only as a witness in his personal capacity and whatever he has knowledge about the case, he can states on oath but he cannot appear as a witness on behalf of the party in the capacity of that party.
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C.C.NO.25038/2017
3. S. Kesari Hanuman Goud -vs- Anjum Jehan and Ors., decided in Civil Appeal Nos. 2885 - 2887 OF 2005 dated:-
10.04.2013 wherein it has held that it is s settled legal proposition that the power of attorney holder cannot depose in place of the principal.
4. R. Arjunan -vs- Arunacahala Gounder, decided in C. R. P.(NPD) No.1995 of 2005 dated:-22.09.2006 wherein it has held that it is not permissible to permit the Power of Attorney to represent the principal to appear and let in evidence in respect of acts of personal knowledge.
5. Janki Vashdeo Bhojwani and Anr -vs- Indusind Bank Ltd., Ors, decided in Appeal (civil) 6790 of 2003 dated:- 06.12.2004 wherein it has held that power of attorney holder of a party can appear only as a witness in his personal capacity and whatever he has knowledge about the case, he can states on oath but he cannot appear as a witness on behalf of the party in the capacity of that party.
6. Shambhu Dutt Shastri -vs- State of Rajasthan and Ors., reported in 1986(2) WLN 713 wherein it has held that a 8 C.C.NO.25038/2017 general power of attorney holder can appear, plead and act on behalf of the party, but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witnees - box on behalf of himself. To appear in a witness box is altogether a different act.
9. It is pertinent to note here that, the Learned counsel for the complainant has vehemently canvassed the arguments that the head office has given the General Power of attorney to PW1 and PW1 has got the right depose before the Court.
10. It is pertinent to note here that, the burden heavily lies upon the complainant to substantiate that the accused to discharge his legally enforceable debt had issued in it's favour the EX.P2. It is significant to note here that, the PW1 his evidence has got marked the print outs of Telecast certificate cum invoices dated:-15.04.2017 and 30.04.2017 at EX.P6 and 7 to substantiate it had telecasted the programme Dharma Marga in Saral jeevan channel dated:-
03.04.2017 to 07.04.2017, 10.04.2017 to 14.04.2017, 17.04.2017 to 9 C.C.NO.25038/2017 21.04.2017 and 24.04.2017 to 28.04.2018. That, the PW1 has also got marked the print out of Release order at EX.P8.
It is pertinent to note here that, the accused in his examination
- in - chief, in substance of accusation recorded by this Court dated:-11.04.2018 has submitted that he paid the entire amount to the complainant and in his statement recorded by this Court under section 313 of Code of Criminal Procedure, has specifically contended that he paid the entire amount to the complainant in cash. It is significant to note here that, the accused in his cross - examination in page No.3 has specifically deposed that he paid the amount in cash to one of the worker of the complainant company Shri Prashanth. It is significant to note here that, the PW1 in his cross - examination in page No.5 at 3rd line has specifically admitted that the said Prashanth uses to collect the amount from the accused in cash. It is pertinent to note here that, the PW1 in his cross - examination in page No.5 at 5th line has further deposed he cannot say how much amount was collected by the said Prashanth and the same has been mentioned in the accounts book and they have issued the receipts for the making the payments. 10
C.C.NO.25038/2017 It is pertinent to note here that, the said evidence of the PW1 it quite sufficient to hold that the accused had paid the entire amount to complainant. It is significant to note here that, in other words, the said evidence of the PW1 has strengthened the defenses taken by the accused. It is pertinent to note that, the complainant has failed to prove the existence of recoverable debt and also failed to prove that the accused to discharge his legally enforceable debt had issued in its favour EX.P2.
It is pertinent to note here that, from entire evidence of PW1 it clearly appears he is not having the personal knowledge of the present case. It is pertinent to note here that, the PW1 in his cross - examination in page No.4 has specifically deposed that he do not remember from which month they have telecasted the said programme in TV channel and further deposed that he do not remember for how many days they have telecasted the said programme. It is pertinent to note here that, the PW1 in his cross - examination in page No.4 has further deposed that he cannot say when the accused had issued the said three cheques. It is further significant to note here that, the PW1 in his cross - examination in 11 C.C.NO.25038/2017 page No.5 has deposed that he do not remember when their company for last time had telecasted the said programme and further deposed that their company for the last time in the month of April 2016 had telecasted the said programme. It is significant to note here that, as stated above from entire evidence of the PW1 it clearly appears that he is not having the personal knowledge about the present case. It is pertinent to note that, as discussed above the complainant has failed to prove the existence of recoverable debt and also failed to prove that the accused to discharge his legally enforceable debt had issued in its favour EX.P1. It is pertinent to note here that, the accused has taken a probable and acceptable defenses and proved the same with cogent evidence. It is pertinent to note here that, in view of My above all findings and without much discussion I hold that, the complainant has failed to prove that the accused to discharge his legally enforceable had not issued in his favour the EX.P1. In view of the same, Point No.1 is answered in the NEGATIVE.
11. Point No.2 :- It is specific contention of the complainant that, it had presented the EX.P2 for encashment in HDFC Bank, 12 C.C.NO.25038/2017 Basaveshwaranagar branch, Bengaluru and on 27.07.2017 the same was returned with the shara as 'Funds insufficient' and for which on 16.08.2017 it had issued the Legal notice to him and the same was duly served upon him on 18.08.2017.
It is to be noted here that, the complainant to substantiate his aforesaid contentions in his evidence has got marked the Cheque return memo issued by the said Bank at EX.P3, Legal notice issued by him to the accused dated:-16.08.2017 at EX.P4, Postal receipt at EX.P4(a) and Track consignment at EX.P5.
It is pertinent to note here that, as discussed on point No.1, the complainant has failed to prove that the accused to discharge his legally enforceable debt had issued in his favour EX.P2 and if such being the case, the question of committing the offence by the accused under section 138 of the Negotiable Instruments Act, do not arise at all. It is to be noted here that, in view of My above findings and without much discussion I hold that, complainant has failed to prove that the accused has committed the offence punishable under section 138 of Negotiate Instruments Act. In view of the same, point No.2 is answered in the NEGATIVE.
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12. Point No.3:- That, as discussed on Points No.1 and 2, I proceed to pass the following:-
ORDER That, acting under section 255(1) of Code of Criminal Procedure, the accused is acquitted for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the accused shall comply with the provisions of section 437(A) of the Code of Criminal Procedure. (Typed and corrected by me and then pronounced by me in the open court on this the 14th day of September 2018) (Hema Pastapur) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List witnesses examined on behalf of the complainant PW1 : Rudresh Navalgi s/o Siddappa Navalgi. List of documents marked on behalf of the complainant EX.P1 : General Power of attorney;
EX,P2 : Original cheque;
EX.P1(a) : Signature of the accused;
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C.C.NO.25038/2017
EX.P3 : Cheque return memo's;
EX.P4 : Legal notice dated:-16.08.2017;
EX.P4(a) : Postal receipt;
EX.P5 : Track consignment;
EXs.P6 and 7 : Telecast certificate cum invoices and
EX.P8 : Release order.
List of witnesses examined on behalf of the accused DW1 : Gajendra BhanSingh.
List of documents marked on behalf of the accused EX.D1 : Release order.
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
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