Bangalore District Court
Rep. By Authorised Person vs Office At No.26 on 22 August, 2022
0 C.C.NO.6987 OF 2021
SCCH-26
1 C.C.NO.6987 OF 2021
SCCH-26
BEFORE THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT
CLAIMS TRIBUNAL & A.C.M.M. (SCCH26) AT
BENGALURU
DATED THIS THE 22nd DAY OF AUGUST 2022
PRESENT: SRI.ARUN SADASHIV GUDIGENAVAR.
B.A., LLB.,(Hon's) LL.M.
XXIV ADDL. SCJ & ACMM & MEMBER MACT
BENGALURU.
1. Sl. No. of the Case CC.No.6987 OF 2021
2. The date of 26072021
commencement of
evidence
3. The date of closing 02082022
evidence
4. Name of the Radiant Power Solutions
Complainant Rep. By authorised person
Mr.Syed Shabber Ahmed
S/o R.Syed Mahmoud
No.151/1, Landmark Tower
Whelllers Road,
Below Airtel Office
Frazer Town,
Bangalore.
(By Sri.N.A.K.Advocate.)
5. Name of the 1. Maruti Battery Works
Accused Office at No.26, H.M.R.Building
Annaiah Reddy Layout
Rammurthy Nagar Main Road
Dodda Banaswadi,
2 C.C.NO.6987 OF 2021
SCCH-26
Bangalore560 043
2. Rep by Mr.Waseem
Proprietor
Office at No.26, H.M.R.Building,
Annaiah Reddy Layout,
Rammurthy Nagar main road
Dodda Banaswadi,
Bangalore560 043.
(By Sri.S.N.R.Advocate)
6. The offence U/s.138 of the
complained of Negotiable
Instruments Act
7. Opinion of the Accused found not guilty
judge
JUDGMENT
The complainant has filed this complaint Under Section 200 of Cr.P.C against the accused alleging that the accused has committed an offence punishable Under Sec.138 of the Negotiable Instruments Act, 1881. (In short N.I.Act). 3 C.C.NO.6987 OF 2021
SCCH-26
2. The brief facts of the complainant's case are as under: It is the case of the complainant that he is engaged in wholesale business of supplying batteries. The accused is known to him as he used to purchase batteries from him from past two years. The accused has purchased the batteries from him on credit basis. But the accused has failed to make the payment for having purchased batteries. As on 3132020 the accused is due by sum of Rs.56,150/. After repeated request, the accused has issued cheque bearing No.302718 dt.682020 for Rs.56,150/ drawn on SBI, Doddabanasavadi branch, Bangalore towards discharge of his liability. Further it is the case of the complainant that he has presented the said cheque at his banker, but the same has been returned to him on 1082020 with endorsement 4 C.C.NO.6987 OF 2021 SCCH-26 "Insufficient Fund" and Drawers signature differ. Threafter, he has issued legal notice to the accused on 592020 and the same has been served on him on 792020. In spite of it the accused has not repaid the cheque amount and also not replied to the notice. Hence, this complaint.
3. After filing of this complaint, the cognizance of the offence has been taken and the complaint has been registered as P.C.R. Thereafter, the sworn statement of the complainant has been recorded and also got marked 9 documents as ExP1 to P9. Thereafter, the case has been registered in Crl.Reg.No.III and summons has been issued to the accused. In response of summons, accused has appeared before this court through his counsel and obtained bail. The plea has been recorded, read over and explained to the accused. He has pleaded not 5 C.C.NO.6987 OF 2021 SCCH-26 guilty and claims to be tried. Hence, the case has been posted for complainant evidence. The complainant has adopted sworn statement and Ex P1 to 9 as his evidence. Thereafter, statement of accused u/s 313 Cr.P.C. has been recorded. He has denied the incriminating circumstances appearing in the evidence of complainant against him. He has chosen to lead defence evidence. The accused has examined himself as DW1 and got marked one document as Ex.D.1.
4. Heard the arguments from both sides. Perused the entire records.
5. The following points arise for my consideration: POINTS
1. Whether the complainant proves that the accused has issued cheque in question in discharge of the legally recoverable debt or any other liability as contended by him?
2. Whether complainant proves that the accused has committed the offence punishable under Sec.138 of NI Act?
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3. Whether the complainant is entitled for the relief as prayed in the complaint?
4. What order?
6. My answer to the above points is as follows : Point No.1 to 3 : In the Negative Point No.4 : As per final order for the following : REASONS
7. POINT NO.1 to 3 : These three points are taken together for common discussion in order to avoid facts and evidences.
8. It is the case of the complainant that he is engaged in wholesale business of supplying batteries. The accused is known to him as he used to purchase batteries from him from past two years. The accused has purchased the batteries from him on credit basis. But the accused has failed to make the payment for having purchased 7 C.C.NO.6987 OF 2021 SCCH-26 batteries. As on 3132020 the accused is due by sum of Rs.56,150/. After repeated request, the accused has issued cheque bearing No.302718 dt.682020 for Rs.56,150/ drawn on SBI, Doddabanasavadi branch, Bangalore towards discharge of his liability. Further it is the case of the complainant that he has presented the said cheque at his banker, but the same has been returned to him on 1082020 with endorsement "Insufficient Fund" and Drawers signature differ. Thereafter, he has issued legal notice to the accused on 592020 and the same has been served on him on 792020. In spite of it the accused has not repaid the cheque amount and also not replied to the notice.
9. As already stated supra, the complainant in order to prove his case has examined himself as PW1 and got marked 9 documents as ExP1 to P9. 8 C.C.NO.6987 OF 2021
SCCH-26 ExP1 is the authorisation letter. As per this letter the complainant is duly authorised to prosecute the case against the accused on behalf of complainant company. ExP2 is the cheque dt.682020 and Ex P3 is the bank endorsement dt.1082020. As per these two documents the complainant has presented the cheque for encashment at his banker but the same has been returned to him with endorsement "Drawers signature differs". ExP4 is the legal notice dt. 592020, ExP5 and 6 are postal fee paid receipts and ExP7 and 8 are article tracking details issued by the Post Master GradeI, Arabic college post office, Bangalore. As per these documents it is clear that the complainant has issued legal notice to the accused and it has been duly served on him on 792020. The complainant has presented this complaint on 28102020. It is relevant to note that there is a delay of five days in 9 C.C.NO.6987 OF 2021 SCCH-26 presenting the complaint, but in view of the directions of Hon'ble Supreme Court of India during covid19 pandemic, the limitation was extended time to time. Hence, the complaint is taken as filed within time. ExP9 is the ledger extract pertaining to the accused maintained by the complainant. As per this document, the accused was due by sum of Rs.56,150/ as on 632020.
10. The documents produced by PW1 clearly shows that he has complied with the mandatory provisions of sec.138 of NI Act. Hence, it gives raise to presumption u/s 118 and 139 of NI Act in favour of complainant that he received the cheque in question from the accused in discharge of legally enforceable debt or other liability.
11. It is relevant to note that the presumption available u/s 118 of NI Act and u/s 139 of NI Act are rebuttable in nature. The accused has chosen to 10 C.C.NO.6987 OF 2021 SCCH-26 rebut the presumption by way of cross examination of PW1 and also adducing his defence evidence.
12. The learned counsel for the accused has cross examined PW1 at length. PW1 in his cross examination has deposed that there was a transaction between him and the accused worth of Rs.2,50,000/. Further he has deposed that the accused used to make regular payment only after strict followup for recovery of the sale amount. He has denied the suggestion that one Sayyed and Basha used to collect the sale amount from the accused. He has denied the suggestion that at the beginning of first transaction he use to collect blank signed cheques from his customers as a security purpose. He has also denied that he filed this false case against the accused by misusing the cheque given as a security purpose.
13. PW1 in his crossexamination has 11 C.C.NO.6987 OF 2021 SCCH-26 admitted the suggestion that he did not directly make transaction with the accused. Further he has admitted the suggestion that during precovid19 period the accused stopped making transaction with him in the month of November 2019. He has also deposed that he use to make transaction only through cheque and online payments. Further he has deposed that ExP9 the ledger extract has been prepared in his office. He has also deposed that some times the delivery agents used to collect cheques from the customers, when they go to deliver the items. He has also deposed that he use to issue the cash receipt for having received the same.
14. PW1 in his crossexamination has further deposed that one Muzeer Ahmed is the owner of the company but he looks after entire business of the company. He has denied the suggestion that 12 C.C.NO.6987 OF 2021 SCCH-26 the accused had paid the entire sale amount by way of cash to the delivery boys of his company. He has also denied the suggestion that ExP1 and 9 are created documents. Further he has denied the suggestion that he misused the cheque given by the accused for security purpose and filed this case.
15. PW1 in his further cross examination has admitted that he had already encashed the five cheques given by the accused after issuance of cheque in question ExP2 in his favour. But he has denied the suggestion that he misused the cheque in question given by the accused for security purpose at the beginning of first transaction. He has further denied the suggestion that he filed this false case against the accused as he stopped purchasing batteries from him. He has also denied the suggestion that he did not issue notice to accused as per ExP4.
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16. From the entire cross examination of PW 1 it shows that the accused has taken up a defence that he issued the blank cheque in favour of complainant as a security purpose at the time of making first transaction with him. Further he has taken up a defence that the accused by misusing the cheque given for security purpose filed this false case against him. He has also taken up a defence that he already repaid the entire amount in favour of complainant company. Further he has taken up a defence that the complainant has created documents i.e., ExP1 and P9. He has also takenup defence that the signature found in ExP2 cheque in question is not his signature.
17. At the time of recording statement of accused u/s 313 of Cr.P.C. he has denied the incriminating circumstances appearing in the evidence of complainant against him. He has 14 C.C.NO.6987 OF 2021 SCCH-26 stated that he had given blank cheque in favour of complainant for reference and for security purpose at the time of making first transaction. He has chosen to lead defence evidence. Accordingly he has examined himself as DW1 and got marked one document as ExD1. He has deposed that he issued blank cheque bearing No.302718 in favour of complainant and thereafter, he issued six cheques in favour of the complainant and the said six cheques were encashed on different dates by the complainant company. Further he has deposed that in the November 2019 he had made last transaction with the complainant and at that time he issued cheque in favour of complainant company. He has also deposed that the complainant company got encashed the last cheque in the month of March 2020 issued by him. Further he has deposed that the first blank cheque 15 C.C.NO.6987 OF 2021 SCCH-26 given by him was misused by the complainant and got dishonoured the same and thereafter filed this false case against him.
18. Further DW1 has deposed that he requested the complainant several times to return his cheque but the complainant did not return the same. He has also deposed that in the year 2019 he stopped making business with complainant as the batteries of the complainant company were not in demand. He has also deposed that he already repaid the entire sale amount in favour of complainant company through the delivery boys. Further he has deposed that he did not see the owner of the complainant company personally. He has also deposed that in the November 2019 he was due by sum of Rs.20,000/ as such he paid the same through cheque bearing No.302753 and the same was encashed by the complainant company 16 C.C.NO.6987 OF 2021 SCCH-26 in the month of March 2020. In support of his evidence he has produced statement of account as per ExD1
19. The learned counsel for the complainant has cross examined DW1 at length. In his cross examination he has deposed that from past 18 years he has been running his shop in the name Maruthi Battery works. Further he has deposed that from the year 2017 to 2019 he obtained the service of complainant company. He has also deposed that after obtaining the products from the complainant company he issued six cheques. He has admitted that he did not maintain any ledger account with respect to transaction entered between him and the complainant company. He has admitted that every time the complainant company used to issue invoice bills in his favour. Further he has deposed that he used to pay the bill 17 C.C.NO.6987 OF 2021 SCCH-26 amount to the worker of the complainant company by name Pasha. He has also deposed that he repaid sum of Rs.89,000/ to the complainant company by way of cash. Further he has deposed that he issued post dated cheques in favour of complainant company. He has further deposed that he issued blank cheque in favour of complainant company only for the purpose of reference at the time of making first transaction in the year 2017 and issued rest of the cheques in the year 2018. He has admitted that in the year 2019 he stopped making business with the complainant company. Further he has deposed that in the year 2019 he was due by Rs.20,000/ as such he repaid the same by way of cheque.
20. On perusal of ExD1 bank statement of the accused it shows that on 1772019 the complainant company got encashed the cheque 18 C.C.NO.6987 OF 2021 SCCH-26 bearing No.302720 issued by the accused. Similarly, on 3172019 the complainant company got encashed the cheque bearing No.302723 issued by the accused. Again on 3172019 and 2982019 the complainant company got encashed the cheque bearing Nos.302723 and 302725 issued by the accused. Again on 11112019, 22112019 and 06032020 the complainant company got en cashed cheques bearing No.302729, 302731 and 302753 is issued by the accused. It is relevant to note that ExP2 cheque in question dt.682020 is bearing cheque number " 302718 ". Therefore, by looking at serial numbers of the cheques it makes one thing clear that after issuance of cheque as per ExP2, the accused had issued six cheques in favour of complainant and the same were en cashed by the complainant company as stated supra. It is relevant to note that PW1 in his cross 19 C.C.NO.6987 OF 2021 SCCH-26 examination has categorically admitted that the complainant company had encashed six cheques issued by the accused subsequent to the issuance of cheque in question i.e., ExP2. Therefore, the question does arises that how could it be possible for the accused to issue cheque in question as per ExP2 dt.682020 in favour of the complainant company after having issued six cheques bearing serial numbers which come after the serial number of the cheque in question?. Therefore, the very said fact clearly creates reasonable and serious doubt regarding issuance of cheque in question as per ExP2 by the accused in favour of complainant company for payment of the due amount as alleged by the complainant. Inturn the very said fact supports the defence takenup by the accused that he issued blank cheque in favour of complainant company for reference and security 20 C.C.NO.6987 OF 2021 SCCH-26 purpose at the time of making first transaction with it in the year 2017. It is relevant to note that the complainant has not uttered single word regarding encashment of six cheques issued by the accused subsequent to the issuance of cheque in question ExP2 in his complaint for the reasons best known to him.
21. It is relevant to note that the complainant company has not produced the complete ledger extract. ExP9 the ledger extract shows the transaction between the complainant company and the accused from 142019 to 3132020. But it does not disclose the transaction that took place prior to 2019. Therefore, the ledger extract produced by the complainant company is incomplete. Therefore, the complainant company except the incomplete ledger extract as per ExP9, has not produced any documents to show that as 21 C.C.NO.6987 OF 2021 SCCH-26 on the date of filing this complaint the accused was due by sum of Rs.56,150/.
22. Further it is relevant to note that the cheque in question has been returned to the complainant with endorsement " signature differs " as it could be seen from ExP3. On the other hand, it is the specific defence of the accused that he handed over blank cheque in favour of complainant company as a security purpose at the time of making first transaction with it. Further he has clearly denied the signature found in ExP2 cheque. Therefore, the burden is on the complainant company to prove that the signature found in ExP2 is the signature of accused. But the complainant company has not taken any pain in proving the signature for the reasons best known to it. Therefore, on entire appreciation of evidence placed on record, I am of the opinion that the 22 C.C.NO.6987 OF 2021 SCCH-26 accused has successfully rebutted the presumption available to the complainant under the law. Further he has successfully proved his defence that the cheque in question ExP2 issued not for payment of any due amount, but as a security purpose at the time of making first transaction with the complainant company. On the other hand, the complainant has utterly failed to prove beyond reasonable doubt that the accused issued cheque in question in discharge of legally recoverable debt or any other liability. Further he has failed to prove that the accused has committed the offence punishable u/s 138 of N.I Act. Accordingly, I answer point No.1 to 3 in the Negative.
23. Point No.4: For the aforesaid reason, I proceed pass the the following: 23 C.C.NO.6987 OF 2021 SCCH-26 : O R D E R : By 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 of the accused stands canceled.
(Dictated to the stenographer, directly over computer, typed by her, corrected by me and then pronounced in the open Court on this day 22 nd August 2022) (ARUN SADASHIV GUDIGENAVAR) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW1: Syed Shabber Ahmed DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT: Ex.P1 : Authorisation letter Ex.P2 : Cheque, Signature as ExP2(a) Ex.P3 : Bank endorsement Ex.P4 Legal notice Ex.P5 and 6 2 Postal Receipts
Ex.P7 & 8 Postal track report (2 in Nos) separately marked Ex.P9 Ledger account statement 24 C.C.NO.6987 OF 2021 SCCH-26 WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
DW1 : Naveen DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
Ex.D1 : Statement of account (ARUN SADASHIV GUDIGENAVAR) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.25 C.C.NO.6987 OF 2021
SCCH-26 26 C.C.NO.6987 OF 2021 SCCH-26