Bangalore District Court
Indira Nagar vs Proprietor - Aeropix on 1 January, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 1st DAY OF JANUARY, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.55891/2017
CPF (INDIA) PRIVATE LIMITED
No.841/1, Binnamangala 1st Stage, 100 feet Road,
COMPLAINANT Indira Nagar, Bengaluru - 560 038
Reptd by Sri. Jayanth Kumar
Mr. MADHU SHANKAR
ACCUSED Proprietor - AEROPIX
No.54, 7th 'B' Main Road, 4th Block, Jayanagar,
Bengaluru - 560 011.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused are acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
2 C.C. No.55891/2017
JUDGMENT
The complainant company has approached this court through its Power of Attorney with complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w 142 of Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant is that, the complainant company is a registered company engaged in the business of Thai Style non-vegetarian foods. The accused is the proprietor of AEROPIX a proprietorship concern engaged in the business of batteries. The complainant company had placed an order for supply of phantom-3 advance pack (phantom-4+2 batteries) on 2.11.2016 through proforma invoice dated 8.11.2016 and the accused had agreed to deliver the same on or before 30.12.16. At the request of the accused, the complainant had paid full invoice amount of Rs.1,37,400/- on 17.11.2016 in advance through NEFT to the account of the accused. The accused had also agreed to refund the entire advance amount of Rs.1,37,400/- along with interest @ 18% per annum in case of failure to deliver the items on or before 30.12.2016. The accused failed to deliver the invoiced item within schedule day and even after granting additional time and as such the complainant 3 C.C. No.55891/2017 company cancelled the said order and demanded for refund of the advance amount.
3. it is further case of the complainant that after regular reminders and follow up, the accused had issued cheque dated 20.2.2017 bearing No.842968 drawn on State Bank of India, Jayanagar branch, Bengaluru for Rs.1,37,400/- towards refund of the invoice amount. The complainant company presented the said cheque on its due date through HDFC Bank, Richmond Town for realization. But the said cheque was dishonoured on 21.2.2017 on account of insufficient fund. The said fact was intimated to the accused for which the accused expressing his regrets transferred Rs.50,000/- to the account of the complainant company on 23.2.2017 through NEFT requesting to adjust the said amount against interest and other charges and requested the complainant to represent the cheque in question after one week. As per the instruction of the accused, the complainant company represented the cheque on 3.4.2017 for encashment but once again the said cheque was returned dishonoured for the reason "insufficient fund"
on 4.4.2017. Without having any other alternative, the complainant got issued legal notice dated 2.8.2017 through PRAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice. Though the said notice was served on the accused on 4 C.C. No.55891/2017 3.5.2017, the accused neither bothered to comply with the demand made therein nor issued any reply to the said notice and thereby willfully committed the offence punishable U/s.138 of N.I. Act. Accordingly the complainant has prayed for conviction of the accused and for grant of compensation in its favour to meet the ends of justice.
4. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons to the accused and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was issued to him.
5. In pursuance of the summons issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. Thereafter plea was recorded. The accused has denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the Power of Attorney holder of the complainant company is examined as CW.1 and got marked as many as 8 documents as per Ex.P1 to P8 and closed the evidence. After closure of the complainant's evidence, statement of the accused 5 C.C. No.55891/2017 U/s.313 of Cr.PC was recorded. The accused has denied the evidence of the complainant, which is found against him. The accused himself is examined as DW.1 and thereby evidence of the parties concluded.
7. Heard the arguments of the learned counsels for the respective parties.
8. On perusal of the entire material available on file and also on hearing the arguments of the learned counsels, the points that would arise for consideration are :-
1) Whether the complainant proves that the accused had issued cheque in question in discharge of legally recoverable debt as contended?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instrument Act?
3) Whether the complainant is
entitled for the relief's as prayed
in the complaint?
4) What Order?
9. The above points are answered as under;
Point Nos.1 to 3 : Negative,
Point No.4 : As per the final order,
for the following.......
6 C.C. No.55891/2017
REASONS
10. Point Nos. 1 to 3: Since these point Nos.1 to 3 are inter linked and to avoid repetition they are taken together for discussion. Before peeping into the disputed facts, it is appropriate to refer the undisputed facts which can be gathered from the material placed before this court at this stage itself. On going through the rival contention of the parties, oral and documentary evidence, it is clear that there is no dispute that the complainant company is the registered company engaged in the business of Thai Style non-vegetarian foods and so also the accused AEROPIX concern is engaged in the business of batteries. It is also not in dispute that the complainant company had placed an order for supply of phantom-3 advance pack (phantom-4+2 batteries) on 2.11.2016 through proforma invoice dated 8.11.2016 and the AEROPIX concern had agreed to deliver the same on or before 30.12.2016. It is also admitted fact that the complainant company had paid full invoice amount of Rs.1,37,400/- on 17.11.2016 through NEFT to the account of the AEROPIX. Further, it is not in dispute the item ordered by the complainant company was not delivered by the AEROPIX within schedule time and the said AEROPIX concern had repaid a sum of Rs.50,000/- to the complainant company on 23.2.2017 through NEFT. The accused has admitted that he is working as Manager in the AEROPIX 7 C.C. No.55891/2017 concern. Further it is not in dispute that Ex.P2-cheque belonged to the AEROPIX which has maintained its account with SBI., Jayanagar 7th Block, Bengaluru. It is further clear that on presentation of the cheque in question for encashment, the same was dishonoured for the reason "funds insufficient" as put up by the complainant.
11. With the above admitted facts now the facts in dispute are analyzed, as already stated the accused has denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act while recording his plea for the said offence and also denied the incriminating evidence at the time of recording his statement U/s.313 of Cr.PC. On going through the cross-examination of PW.1 and also evidence of DW.1, it is clear that the accused has specifically denied his nexus with the cheque in question contending that he had not issued any cheque in favour of the complainant company for any purpose and the cheque in question is not connected to him and the signature found therein is not his signature. It is also a specific defence of the accused that AEROPIX is not proprietorship concern, but it is the partnership concern having one Smt.Omina .S and one Danushkumar as its partners and the complainant company has field the present complaint on some imagination even though there is no nexus between the 8 C.C. No.55891/2017 accused and the cheque in question and accordingly prayed for his acquittal to meet the ends of justice.
12. Relying on the oral and documentary evidence, the learned counsel for the respective parties vehemently argued as to the contention of the parties. It is needless to say that the proceeding U/s.138 of N.I. Act is an exception to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated U/s.138 of N.I. Act, proof beyond all reasonable doubt is subjected to presumption envisaged U/s.139 of N.I. Act. Once the requirement of section 138 of N.I. Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged U/s.139 of N.I. Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of the said Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption U/s.139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna 9 C.C. No.55891/2017 Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further as provided U/s.118 of N.I. Act, it is to be presumed that the cheque in question was issued for consideration on the date found therein.
13. In the light of the rival contention of the parties at the out set it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of N.I. Act as contended. In this regard, the power of attorney holder of the complainant company has filed his affidavit in lieu of his sworn statement reiterating the contents of the complaint averments which itself is treated as his examination-in-chief. In addition to that he has also produced Special Power of Attorney executed by the complainant company, proforma invoice dated 8.11.2016 issued on behalf of the AEROPIX, cheque dtd.20.2.2017, two bank endorsement dated 21.2.2017 and 4.4.2017, office copy of the legal notice, postal receipt for having sent notice by registered post and track consignment copy as per Ex.P1 to P8 respectively to substantiate the contention. As already stated it is pertinent to note that there is no dispute Ex.P1 to 10 C.C. No.55891/2017 P8 as such. In the light of the specific defence taken by the accused, the initial burden is on the complainant prove that cheue in question belonged to the accused and he had issued the said cheque in favour of the complainant towards discharge of his liability as contended. It is pertinent to note that the complainant company has shown the accused as proprietor of AEROPIX which is specifically denied by the accused contending that he is only Manager of the AEROPIX and the AEROPIX is not proprietorship concern, but it is partnership concern having two partners by name one Omana.S and one Danushkumar. It is also the evidence of the accused during his cross-examination that the cheque in question is signed by one of the partners of the AEROPIX by name Smt.Omana. Now in the light of the contention of the complainant, the evidence available on file is analyzed, absolutely there is no material to show that AEROPIX is the proprietorship concern and the accused is the proprietor of the said proprietorship concern. On the other hand, the evidence of the accused reveals that it is the partnership concern. In this case the accused has produced notarized copy of the VAT certificate and certificate of Import and Export Code relating to AEROPIX in support of his contention. But the said documents were not marked as they are only notarized copies and the accused has not explained as to its original. Though the learned counsel for the complainant opposed for marking of the said documents, 11 C.C. No.55891/2017 the cross-examination of DW.1 is looked into, the evidence of DW.1 in that regard is found to be unchallenged and unquestioned. Nowhere during the cross-examination of the accused, the complainant has questioned/denied the evidence of the accused as to his defence in this regard.
14. Added to the above aspects, as argued by the learned counsel for the accused, on going through the evidence of the representative of the complainant, it is clear that even the complainant company itself is not aware as to who had issued the cheque in question, whether the accused is the proprietor of the AEROPIX and the said AEROPIX is the proprietorship concern or partnership concern. Further the evidence of the PW.1 during cross-examination reveals that even PW.1 is not aware as to how the complainant company got the cheque in question and when it was given. Further, it is also clear from the evidence of PW.1 that since the complainant company transacted with the accused himself, the complainant company imagined the accused himself as a proprietor of the AEROPIX and the cheque in question belonged to the accused himself. Further even during cross- examination he further pleaded ignorance as to whether the cheque in question belonged to the accused or not. Therefore on going through the evidence available on file, it is crystal clear that the complainant company has filed the present case on certain imagination against the accused 12 C.C. No.55891/2017 without any verification. On the other hand on going through the evidence on record, it is clear that the cheque in question is not that of the accused and he is not the proprietor of AEROPIX and AEROPIX is not proprietorship concern also. The evidence of the accused makes it very clear that the cheque in question belongs to the AEROPIX and the same is signed by the one of its partner by name Omana.S. Therefore their remains no doubt that there is no nexus between the accused and the cheque in question. This being the fact the very complaint against the accused is found to be not maintainable. The complainant has chosen to file the present complaint against wrong person with certain imagination.
15. As argued by the learned counsel for the complainant, no doubt after dishonour of the cheque, the complainant got issued legal notice to the accused showing him as proprietor of AEROPIX and the postal track consignment reveals the delivery of the notice on the addressee which was sent under Ex.P7 for which the accused had not issued any reply. But it is pertinent to note that the complainant has not produced either postal acknowledgement or returned RPAD envelop in this regard. Even the evidence of PW.1 is looked into, there is no clarity in that regard also. In one breath PW.1 says that notice was served on the accused and received back the postal 13 C.C. No.55891/2017 acknowledgement and on the another breath stated that the RPAD envelop returned as no person had received the same. Neither postal acknowledgement nor returned RPAD envelop is produced before this court. Be the things as it may, since the very cheque in question found to be not belonged to the accused, the service or non-service of notice and issuance of reply or non-issuance of reply to the said notice does not make much difference.
16. Therefore considering all these aspects, this court is of the considered view that the complainant has filed the present complaint against the wrong person and there is no evidence to show the nexus between the accused and the cheque in question. Therefore, it cannot be held that the accused had issued cheque in question in favour of the complainant towards discharge of any debt or liability and the complainant has made out the necessary ingredients of Sec.138 of N.I. Act as against the accused, so as to establish the offence against him. As discussed above, the defence of the accused is found to be more probable and acceptable one. Therefore there is no other go except holding that the complainant has failed to prove Point nos.1 & 2 in its favour and to prove the commission of the offence punishable U/s.138 of N.I. Act as against the accused as put up by it. This being the fact, the complainant cannot be granted with any relief as sought for in this complaint. Hence, point Nos.1 14 C.C. No.55891/2017 to 3 are required to be answered in negative and answered accordingly.
17. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following....
ORDER Acting under Section 255(1) of Cr.PC accused persons are hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bond of accused stands cancelled. The cash security deposited by the accused is to be refunded in his favour in accordance with law.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 1st Day of January, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 15 C.C. No.55891/2017 ANNEXURE Witnesses examined for the complainant:
PW.1 : Sri. Jayanth Kumar
Witnesses examined for the defence:
DW.1 : Sri. Madhu Shankar
Documents marked for the complainant:
Ex.P1 : Special Power of Attorney
Ex.P2 : Performa Invoice
Ex.P3 : Cheque
Ex.P4 & 5 : Bank endorsements
Ex.P6 : Legal Notice
Ex.P7 : Postal receipt
Ex.P8 : Postal delivery report
Documents marked for the defence:
NIL
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU