Bangalore District Court
Rep By Its Director vs Rep By Its Proprietor Awaiz on 7 July, 2022
KABC020130742018
BEFORE THE COURT OF XXIV ADDITIONAL SMALL CAUSES
JUDGE AND THE MOTOR ACCIDENT CLAIMS TRIBUNAL &
A.C.M.M. (SCCH-26) AT BENGALURU
DATED THIS THE 7th DAY OF JULY 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.2533 of 2018
2. The date of 27-09-2021
commencement
of evidence
3. The date of 15-02-2022
closing evidence
4. Name of the Cauvery Electricals Pvt., Ltd.,
Complainant Rep by its director
Shri.Anil Kumar K
No.37, hospital road,
Bengaluru-560053.
(By Sri.M.R.S..-Advocate)
5. Name of the Design Crypt
Accused Rep by its proprietor Awaiz
Office at No.6/1-1, 1st floor
2nd E main, KHB main road
Sultanpalya, RT nagar,
Bengaluru-560032.
(By Sri.A.R.-Advocate)
6. The offence U/s.138 of the Negotiable
complained of Instruments Act
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7. Opinion of the Accused found guilty
judge
JUDGMENT
The complainant has filed this complaint Under Section 200 of Cr.P.C against accused alleging that the accused has committed the offence punishable Under Sec.138 of the Negotiable Instruments Act, 1881. (In short for N.I.Act)
2. The brief facts of the complainant's case are as under:
It is the case of the complainant that the accused has approached him and purchased electrical items from 14-07-2017 to 04-12-2017 for retail sale worth of Rs.42,87,396=78. The accused has paid sum of Rs.7,96,277=75 and agreed to pay the remaining balance amount within 30 days. Further it is the case of the complainant that when he has requested the accused to pay the remaining balance amount, the accused has issued cheque bearing No.195500 dated 15-09-2017 for sum of Rs.5,72,807/- drawn on Union Bank of India, R.T.Nagar 2 CC NO.2533/2018 SCCH-26 branch, Bengaluru-560 032 towards partial discharge of the due. But upon presentation of the said cheque it has been returned to the complainant with endorsement Funds Insufficient on 21-09-2017. The same has been communicated to the accused. However, the accused once again has given cheque bearing No.195522 dated-31-10-2017 for sum of Rs.4 lakhs drawn on Union Bank of India, R.T nagar, Bangalore towards partial discharge of dues. But upon presentation of the said cheque it has been returned to the complainant with endorsement Funds Insufficient on 01-11-2017. The return of the cheque has been communicated to the accused and he has requested the complainant not to take any legal action against him.
3. Further it is the case of the complainant that again in the first week of April 2018 the accused has issued cheque bearing No.195536 dt.12-4-2018 for sum of Rs.10 lakhs in favour of complainant towards partial discharge of the balance amount. Upon presentation of the said cheque, the same has been returned with endorsement "Payment stopped by drawer". Thereafter, legal notice has been 3 CC NO.2533/2018 SCCH-26 issued on the accused through registered post. In spite of it, the accused has not given any reply to the notice or not paid the balance amount. Hence, this complaint.
4. After filing of this complaint, case has been registered as P.C.R. and sworn statement of the complainant has been recorded. Thereafter, the cognizance of offence punishable u/s 138 of NI Act has been taken and criminal case has been registered in Crl.Reg.No.III and issued summons to the accused. In response to summons, the accused has appeared before this court through his counsel and obtained bail. The plea has been recorded and read over to the accused. He has pleaded not guilty and claims to be tried. Hence, the trial has been conducted.
5. The complainant in order to prove the guilt of the accused, its director Anil Kumar K S/o Kanthilal has examined himself as PW-1 & got marked 56 documents as Ex-P1 to 56. On the other hand, the accused has examined himself as DW-1 and not got marked any documents.
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6. Heard arguments from both side. Perused the entire documents placed on record.
7. The following points arise for my consideration:-
POINTS
1. Whether the complainant proves that the accused had issued cheque in question bearing No.195536 dt.12-04-2018 drawn on Union Bank of India, RT nagar branch, Bangalore for Rs.10,00,000/- in discharge of the legally enforcearble debt or other liability as contended by him?
2. Whether complainant proves that the accused has committed the offence punishable under Sec.138 of NI Act?
3. Whether the complainant is entitled for the relief as prayed in the complaint?
4. What order?
8. My answer to the above points is as follows :-
Point No.1 to 3 : In the Affirmative Point No.4 : As per final order for the following :-
REASONS
9. POINT NO.1 to 3 :- These three points are taken together for common discussion in order to avoid facts and evidences.
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10. It is the case of the complainant that the accused has approached him and purchased electrical items from 14-07-2017 to 04-12-2017 for retail sale worth of Rs.42,87,396=78. The accused has paid sum of Rs.7,96,277=75 and agreed to pay the remaining balance amount within 30 days. Further it is the case of the complainant that when he has requested the accused to pay the remaining balance amount, the accused has issued cheque bearing No.195500 dated 15-09-2017 for sum of Rs.5,72,807/- drawn on Union Bank of India, R.T Nagar branch, Bengaluru-560 032 towards partial discharge of the due. But upon presentation of the said cheque it has been returned to the complainant with endorsement Funds Insufficient on 21-09-2017. The same has been communicated to the accused. However, the accused once again has given cheque bearing No.195522 dated 31-10-2017 for sum of Rs.4 lakhs drawn on Union Bank of India, R.T nagar, Bangalore towards partial discharge of dues. But upon presentation of the said cheque it 6 CC NO.2533/2018 SCCH-26 has been returned to the complainant with endorsement Funds Insufficient on 01-11-2017. The return of the cheque has been communicated to the accused and he has requested the complainant not to take any legal action against him. Again in the first week of April 2018 the accused has issued cheque bearing No.195536 dt.12-4-2018 for sum of Rs.10 lakhs in favour of complainant towards partial discharge of the balance amount. Upon presentation of the said cheque, the same has been returned with endorsement "Payment stopped by drawer". Thereafter, legal notice has been issued on the accused through registered post. In spite of it the accused has not given any reply to the notice or not paid the balance amount.
11. As already stated supra, the director of the complainant company has examined himself as PW-1 and got marked 56 documents as Ex-P1 to P56. He has filed affidavit in lieu of his examination-in-chief reiterating the entire averments of the complaint. Ex- P56 is the copy of authorisation letter it discloses that 7 CC NO.2533/2018 SCCH-26 the director Sri.Anil Kumar K. is the authorised person to file case on behalf of complainant's company. Ex-P6 are 108 tax invoices. These documents disclose that the accused has purchased electrical items from the complainant on various dates between 14-07-2017 to 04-12-2017. Ex-P7 is the ledger account pertaining to transactions made between the complainant company and the accused. As per this document, it is clear that from 1-4-2017 till 4-12-2017 the transaction of Rs.42,87,396/- was taken place between parties. Ex-P8 and 9 are cheques dated 15-09-2017 and 31-10-2017 bearing No.195500 and 195522 respectively for sum of Rs.5,72,807/- and Rs.4,00,000/- respectively drawn on Union Bank of India, RT nagar branch, Bangalore. Ex- P30 and 31 are bank endorsements. These four documents supports the averments made in para No.5 and 6 of the complaint.
12. Ex-P1 is the cheque in question bearing No.195536 dated 12-04-2018 drawn on Union Bank of 8 CC NO.2533/2018 SCCH-26 India, RT nagar branch, Bangalore for sum of Rs.10 lakhs. Ex-P2 is the endorsement dated 20-04-2018 of the bank. Ex-P3 is the legal notice dated 05-05-2018. Ex-P4 is the copy of the notice returned to the complainant with endorsement "Addressee left". These four documents disclose that the complainant presented the cheque for encashment of Rs.10 lakhs, but the same was returned to him with endorsement "Payment stopped by the drawer" and thereafter he got issued legal notice to the accused which was returned to him with endorsement "Addressee left".
13. The documents produced by the PW-1 clearly shows that he has complied with the mandatory requirements as envisaged u/s 138 of NI Act. Therefore, the complainant has discharged his initial burden by producing the documentary evidence. Therefore, it gives raise to statutory presumption u/s 118 r/w section 139 of NI Act in favour of the complainant. Section 118 of NI Act reads as under:-
That every Negotiable Instrument was made or drawn for consideration and that 9 CC NO.2533/2018 SCCH-26 every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
14. Further Section 139 of NI Act provides for presumption in favour of holder. It reads as under:-
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part or any debt or other liability.
15. On combined reading of the above provisions, it raises a presumption in favour of holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability. It is relevant to note that the law itself provides that such presumptions are rebuttable in nature. In order to rebut the presumption, the accused has chosen to cross-examine PW-1 and also adduce his defence evidence. The learned counsel for the accused has cross examined PW-1 at length. PW-
1 in his cross-examination has deposed that he produced tax invoices and cheques to show that the accused had entered into transaction with him. Further 10 CC NO.2533/2018 SCCH-26 he has deposed that he did not produce any documents to show that his company is still in existence. He has also deposed that the accused issued cheques for the repayment of bills for having purchased wires, lighting and switches from him. Further he has voluntarily deposed that he is in possession of nearly 28 to 30 cheques belongs to accused. He has further deposed that the accused issued the cheque by mentioning the date in it. He has denied the suggestion that the accused did not give the cheque for repayment of the bills. He has admitted that one Kumar is working under him. But he has denied the suggestion that the said Kumar used to work for accused in the market on commission basis and used to get materials for him.
Further he has denied the suggestion that in this regard there was difference of opinion between said Kumar and the accused. He has also denied the suggestion that the said Kumar handed over the blank cheques of the accused in his favour.
16. Further PW-1 in his cross-examination has 11 CC NO.2533/2018 SCCH-26 admitted that the accused shop is situated at No.699, 7th main, CBI main road, Ganganagar, RT nagar, Bangalore-32. He has deposed that he visited the office of the accused situated at address shown in the cause title of the complaint. Further he has deposed that he informed the accused regarding the dishonour of cheque. Further he has deposed that he got issued legal notice on the accused and also produced the copy of the same before this court. PW-1 has denied the suggestion that the accused after coming to know about misusing of cheque by him and Kumar, he immediately informed the bank to stop payment. Further he has deposed that the accused was residing in the very same address but refused to take the notice. He has denied the suggestion that he created Ex-P5 for the purpose of this case. Further he has denied the suggestion that it is not mandatory to fillup the dispatch number, place of destination, delivery date and mode of dispatch in the tax invoices. He has admitted that the accused did not put his signature in the tax invoices. 12 CC NO.2533/2018
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17. Further PW-1 in his cross-examination has denied the suggestion of the learned counsel for the accused that as per Ex-P7 no transaction was taken place between him and the accused. He has deposed that accused handed over cheques as per Ex-P12 to 29 for payment of bills. He has denied the suggestion that he did not send any materials to the accused as such the accused did not put his signature on the tax invoices. Further he has denied the suggestion that he created Ex-P3 for the purpose of this case. He has denied the suggestion that he received Ex-P8 to 29 from Kumar but voluntarily stated that he received three cheques from one Raju. Further he has denied the rest of the bare suggestions put to him by the learned counsel for the accused.
18. From the entire cross-examination of PW-1 it is clear that the accused has taken-up a defence that he did not issue cheque for repayment of bill. Further he has taken-up defence that difference of opinion developed between him and one Kumar and the said 13 CC NO.2533/2018 SCCH-26 Kumar took his cheques and handed over to the complainant. Further it is the defence of the accused that he did not receive any notice from the complainant. It is the another defence of the accused that he did not put his signature on the cheque in question. Further it is the defence of the accused that the complainant has created certain documents for the purpose of this case. Further he has taken-up a defence that the complainant in collusion with one Kumar misused the cheque and filed present case against him.
19. Ex-P5 is the computerized master data pertaining to the company of the complainant. As per this document, it is clear that the company of the complainant is still in existence. Therefore, the question raised by the learned counsel for the accused regarding non-existence of company holds no water. As already stated supra, the accused has chosen to rebut the presumption in two ways. Firstly, he has chosen to cross examine PW-1 and secondly, he has adduced his 14 CC NO.2533/2018 SCCH-26 defence evidence. He has examined himself as DW-1. In his examination-in-chief, he has deposed that he is under no liability to pay any amount in favour of complainant company. He has also deposed that he did not give his cheques in favour of the complainant. Further he has deposed that his workers did not put signature on his behalf on the invoices generated by the complainant company.
20. Further DW-1 has deposed that there is no relationship between him and the invoices produced by the complainant company. Further he has deposed that he came to know about the present case only after receiving summons from this court. DW-1 has also deposed that he used to purchase electric items from one Kumar on commission basis and in relation to commission amount there were difference of opinions between him and the said Kumar. Further he has deposed that when he was not in his office, the said Kumar came there and took his signed blank cheques from his office. He has also deposed that he had paid 15 CC NO.2533/2018 SCCH-26 sum of Rs.8 lakhs to the complainant for withdrawing the present complaint. Further he has deposed that he did not take any action against the said Kumar as the present case is still pending.
21. The learned counsel for the complainant has cross examined DW-1 at length. I have perused the entire cross-examination of DW-1 carefully. In his cross- examination he has admitted that his E-mail address is [email protected]. Further he has admitted the E-mail copy which has been marked at Ex-P35. He has also admitted that the address shown in the cause title of the complaint and the address shown in Ex-P35 are one and the same. Further he has admitted the communication that took place between him and the complainant through whatsapp. The copy of communication through whatsapp have been marked as Ex-P36 to 55. Further he has admitted that one Anil has sent the messages or communication to his whatsapp mobile number. Further he has admitted that the cheque in question belongs to him and the signature 16 CC NO.2533/2018 SCCH-26 found in it is his signature. Further he has denied the suggestion that he voluntarily handed over those cheques in favour of complainant. Further he has deposed that since there was no balance to be paid to the complainant, he requested the bank and instructed to stop payment. Further he has admitted that as per Ex-P35 the E-mail has been sent to the company of the complainant from his company.
22. Further DW-1 has deposed that he did not have any problem to take action against the said Kumar. Further he has deposed that he is unable to say how much amount he had paid in favour of complainant company as per Ex-P7. Further he has admitted the seal and signature found in Ex-P6. He has denied that as per Ex-P50 he got message of dishonour of cheque from the complainant through whatsapp. Further he has admitted that he had paid sum of Rs.18 lakhs by way of transfer to the bank a/c of complainant's company. Further he has deposed that he did not have any problem to take action against the complainant 17 CC NO.2533/2018 SCCH-26 company for threatening him or demanding to pay sum of Rs.8 lakhs for withdrawing the case. Further he has admitted that in the year 2018 he had knowledge regarding the dishonour of cheque. But he has deposed that he is under no liability to pay any amount in favour of complainant company.
23. The learned counsel for the complainant would vehemently argue that the complainant has complied with the mandatory provisions of Section 138 of NI Act by producing cogent documents. As such it gives raise to statutory presumption u/s 118 and 139 of NI Act in favour of the complainant that he received the cheque from the accused for discharge of legally enforceable debt or other liability. Further he would argue that the accused has taken totally inconsistant defence and during recording of statement u/s 313 Cr.P.C. the accused has denied the case of the complainant. Therefore mere denial is not a defence. Further he would argue that the accused has not produced any evidence to show that his cheques have been misused 18 CC NO.2533/2018 SCCH-26 by the complainant company. In support of his arguments he has relied upon the decisions reported in (2019) AIR SCC 1876, (2019) (2)KAR.L.R.717 (SC), (2021)(1)KLR 378 (SC) and 2020 Volume II KLR
358. I have gone through the decisions submitted by the learned counsel for the complainant. In these four cases the main principle laid down by the Hon'ble Supreme Court of India is that once the cheque is proved to be issued it carries statutory presumption of consideration and the complainant received it in discharge of a debt or liability.
24. On the other hand, the learned counsel for the accused has submitted his written arguments contending that the accused has not issued Ex-P1 cheque towards payment of any electrical items and the demand notice as per Ex-P3 has not been received by the accused. Further he would argue that the complainant company did not send any electrical items to the accused as per Ex-P6 invoices and the complainant by collecting his cheques from one 19 CC NO.2533/2018 SCCH-26 Mr.Kumar and Mr.Raju filed this false complaint against the accused. He would further argue that the important portion of tax invoices were left blank and even the accused did not put his signature on those invoices. Further he would argue that the complainant demanded sum of rs.8 lakhs to withdraw the present case. As such the accused paid sum of Rs.8 lakhs in favour of complainant company. But in spite of it the complainant by suppressing the real fact filed this false case against the accused. The learned counsel for the accused in support of his argument has relied upon the decision of Hon'ble High Court of Karnataka and Hon'ble High Court of Kerala reported in ILR 2014 KAR 6572 and LAWS (KER) 2011-6-328.
25. Though the accused has taken initial defence that he did not issue cheque in question in favour of complainant and he did not put his signature on it but in his cross-examination he has categorically admitted that the cheque in question belongs to him and the signature found on it is his signature. Further the 20 CC NO.2533/2018 SCCH-26 evidence of accused shows that though he has initially denied the transaction entered between him and complainant company but in his cross-examination he has admitted about the said transaction during the communication took place between him and complainant company through whatsapp as per Ex.P.36 to 55. I have gone through Ex.P.36 to 55. It makes one thing clear that the accused used to purchase materials from the complainant and he has promised to make payments of bills in favour of the complainant company. Further these communication makes it clear that, more particularly Ex.P.46, the accused has requested the complainant company not to present the cheque and hold it for some time till he would make arrangement for payment of bills.
26. I have perused Ex.P.35 the E-mail copy sent from accused to complainant company. The accused has admitted the said document in his cross- examination. As per this document it is clear that the accused sought some more time to complainant 21 CC NO.2533/2018 SCCH-26 company to clear all the payments. Therefore, the defence of the accused that he had no where connection with invoices i.e. Ex.P.6 holds no water. Further the evidence of accused makes it clear that he was residing in the address shown in the Ex.P.35. The very same address is mentioned in the cause title of the complaint. I have perused the demand notice marked as Ex.P.3. The complainant company has sent the said demand notice to the very same address of the accused which is mentioned in Ex.P.35. Therefore, the contention of the accused that he did not receive any notice from the complainant company holds no water. It is relevant to note that the accused has taken another specific defence that one Kumar had took his signed blank cheques from his office and handed over the same to the complainant company. But the accused has not explained what prevented him to take suitable action against the said Kumar for committing theft of his signed blank cheques from his office. It is relevant to note that, no man of ordinary prudence would keep quiet when some one commits theft of his signed blank 22 CC NO.2533/2018 SCCH-26 cheques, without lodging complaint to the jurisdictional police station. Absolutely, the accused has not furnished any reasons for not taking action against said Kumar. Therefore, the said defence taken up by the accused is without any basis as such the same is not acceptable.
27. Further it is relevant to note that at one hand the accused says that the complainant has created certain documents for the purpose of this case but on the other hand he admits the said documents in his cross examination. Therefore, the accused has taken totally inconsistent defences. Therefore, in my opinion the evidence adduced by the accused and defences taken by him are not helpful to probable his case so as to rebut the presumptions raised in favour of the complainant company. Therefore, I am of the considered opinion that the accused has utterly failed to rebut the presumption. Therefore, further in my opinion the complainant has proved that the accused had issued cheque bearing No.195536 dated 23 CC NO.2533/2018 SCCH-26 12-04-2018 drawn on Union Bank of India, R.T Nagar branch, Bengaluru for a sum of Rs.10,00,000/- in discharge of legally enforceable liability. Therefore, the complainant has proved 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 affirmative.
28. Point No.4: It is relevant to note that as per the order dated 18-8-2021, passed by this court, the accused has deposited 10% of total cheque amount i.e., Rs.1,00,000/- on 08-04-2022. The said amount has been ordered to be released in favour of complainant as an interim compensation on 23-06-2022. Therefore, it is clear that the accused has already deposited sum of Rs.1,00,000/- before this court. Therefore, the accused has to be convicted for remaining amount. Hence, for the aforesaid reasons, I proceed pass the the following:-
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-: O R D E R :-
By Acting U/s 255(2) of Cr.P.C the accused is hereby convicted for the offence punishable U/s 138 of NI Act.
The accused is hereby sentenced to pay fine of Rs.10,05,000/- (Rupees Ten Lakhs only). In default, the accused shall undergo simple imprisonment for period of six months.
The accused has already deposited sum of Rs.1,00,000/- on 8-4-2022 before this court. Therefore, the accused is sentenced to pay remaining fine amount of Rs.9,05,000/-. The said amount of Rs.1,00,000/- has already been ordered to be released in favour of complainant on 23-06-2022.
Acting U/s 357(3) of Cr.P.C. out of the total fine amount payable by the accused, a sum of Rs.9,00,000/- (Rupees Nine lakhs only) shall be paid to the complainant as compensation and remaining amount of Rs.5,000/- (Rupees Five thousand only) shall be defrayed as state expense.
It is further made it clear that if the accused opt to undergo imprisonment, it does not absolve him from liability of paying compensation to the complainant.25 CC NO.2533/2018
SCCH-26 Office is hereby directed to supply free certified copy of this judgment to the accused forthwith. (Dictated to the stenographer, directly over computer, typed by her, corrected by me and then pronounced in the open Court on this day 7 th July 2022) (ARUN SADASHIV GUDIGENAVAR) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW-1: Anil Kumar K. DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT: Ex.P-1: Cheque Ex.P-1(a) : Signature Ex.P-2 : Bank endorsement Ex-P3 : Legal notice Ex-P4 : Postal return cover Ex-P5 : Company master data Ex-P6 : Invoices (108 in Nos) Ex-P7 : Ledger account statement Ex.P8 to 29 Original 22 cheques Ex.P8(a) to 30(a) : Signatures Ex.P30 to 31: 2 bank endorsements Ex.P32 : Postal receipt Ex.P33 : Email conversation Ex.P34 : Certificate u/s 65B of IE Act Ex.P35 : Email conversation Ex.P36 to Ex-P55 Whatsapp messages Ex.P56 : Original copy of authorisation letter 26 CC NO.2533/2018 SCCH-26
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
DW-1 : Awaiz Ahmed Khan DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
NIL (ARUN SADASHIV GUDIGENAVAR) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.27 CC NO.2533/2018
SCCH-26 Dt- 7-7-2022 Judgment pronounced in the Open Court vide separate order:
ORDER By Acting U/s 255(2) of Cr.P.C the accused is hereby convicted for the offence punishable U/s 138 of NI Act.
The accused is hereby sentenced to pay fine of Rs.10,05,000/- (Rupees Ten Lakhs only). In default, the accused shall undergo simple imprisonment for period of six months.
The accused has already deposited sum of Rs.1,00,000/- on 8-4-2022 before this court. Therefore, the accused is sentenced to pay remaining fine amount of Rs.9,05,000/-. The said amount of Rs.1,00,000/- has already been ordered to be released in favour of complainant on 23-06-2022.
Acting U/s 357(3) of Cr.P.C. out of the total fine amount payable by the accused, a sum of Rs.9,00,000/- (Rupees Nine lakhs only) shall be paid to the complainant as compensation and remaining amount of Rs.5,000/- (Rupees Five thousand only) shall be defrayed as state expense.
It is further made it clear that if the accused opt to undergo imprisonment, it does not absolve him from liability of paying compensation to the complainant.
Office is hereby directed to supply free certified copy of this judgment to the accused forthwith.28 CC NO.2533/2018
SCCH-26 (ARUN SADASHIV GUDIGENAVAR) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.29 CC NO.2533/2018
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