Bangalore District Court
R/At No.197 vs M/S. Sharon Systems on 11 April, 2018
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 11th DAY OF April, 2018
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NOs.60703/2017, C.C. NO.60702/2017
& C.C. NO.60701/2017
Sri. P. Bharat Kumar
S/o. P.K.S Rao
COMPLAINANT R/at No.197, Club Avenue Road, LRDE Layout,
Karthik Nagar, Bengaluru - 560 037.
1. M/s. Sharon Systems
Proprietor - Sri. Joshua Martyn
No.60/4, 11th Avenue, Ashok Nagar, Chennai - 083.
2. Sri. Joshua Martyn - Proprietor
ACCUSED M/s. Sharon Systems
S/o. Samuel Martyn, Flat No.AF3, Vinoth Viruksha
Apartments, Near Thai Moogambigai College, Ganga
Amman Street, Nolambur Chennai - 600 107
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
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COMMON JUDGMENT IN C.C. NO.60703/2017, C.C.
NO.60702/2017 & C.C. NO.60701/2017
The complainant has approached this court with the
complaints 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 in nutshell is that the
accused is known to the complainant being his former tenant
and in order to discharge his liability, the accused had issued
two cheques bearing No.125714 and No.125717 dated
25.11.2016 for Rs.1,17,600/- and for Rs.7,852/- respectively
and issued another cheque bearing No.125718 dated
16.11.2017 for Rs.6,500/- drawn on M/s.Andhra Bank,
Neelangarai branch, Chennai. The complainant had presented
the said cheques for encashment within validity period through
his banker M/s.HDFC Bank, Richmond Road, Bengaluru as per
the request of the accused. But the cheque for Rs.1,17,600/-
was returned unpaid on 17.1.2017 and other two cheques were
returned unpaid on 11.01.2017 for the reason "funds
insufficient". Thereafter the complainant got issued separate
legal notices dtd.31.01.2017 in respect of each cheque by
registered post to the two addresses of the accused calling upon
him to make payment of the cheque amount. The notice sent to
the second address of the accused was served on the accused
on 01.02.2017 and notice sent to the first address of the
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accused was returned to the complainant. After service of notice
the accused replied to the notice through his letter and did not
opt to comply with the legal demand made in the notice and
thereby willfully committed the offence punishable U/s.138 of
N.I. Act. Under these attending circumstances, the complainant
is constrained to file the present complaints and accordingly
prayed for conviction of the accused and for grant of
compensation in his favour in the interest of justice and equity.
3. After filing of the complaints, 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 Cases
were registered against the accused for the offence punishable
U/s.138 of N.I. Act and summons was ordered to be issued to
the accused.
4. 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 in
all the cases.
5. In order to prove the case of the complainant, the
complainant himself examined as CW.1 in all three cases and
got marked as many as 8 documents as per Ex.P1 to P8 in C.C.
No.60703/2017 and got marked 7 documents as per Ex.P1 to P7
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in C.C No.60702/2017 and C.C No.60701/2017 and closed his
evidence. After closure of the complainant's evidence, statement
of the accused U/s.313 of Cr.PC was recorded in each case. The
accused has denied the evidence of the complainant, which is
found against him and has not opted to place any evidence on
his behalf. However the accused has got marked xerox copy of
the rent agreement dated 01.10.2015 entered into between
himself and the complainant as per Ex.D1 during cross-
examination of the complainant and thereby evidence of the
parties concluded.
6. When the case was posted for defence evidence, the
learned counsel for the complainant filed memo stating that C.C
No.60702/2017 and No.60701/2017 may be taken along with
C.C No.60703/2017 as in all the three cases parties and their
contention are common and common judgment could be passed.
The learned counsel for the accused also consented for the
same. Considering the said memo and submission made
C.C.No.60702/2017 and C.C. No.60701/2017 are ordered to be
taken along with C.C No.60703/2017 for passing common
judgment as prayed and accordingly taken together for
consideration.
7. Heard the arguments of the learned counsels for the
respective parties. The learned counsel for accused has relied
upon the following citations also;
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a) ILR 2008 KAR 4629 - (Shiva Murthy Vs Amruthraj)
b) 2010 (1) AIR Kar R. 304 - (Venkatesh Bhat .A Vs Rohidas
Shenoy)
c) 2012 (1) DCR 16 - Navneetdas Narayandas Barshikar Vs
Bacchubhai Mulji Tanna - Proprietor of B.M.T Industries &
others)
d) 2012 (4) KCCR 3593 - (T.T. Naveen Kumar Vs
B.Somegowda)
8. On perusal of the entire material available on file, 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 three cheques in
question in discharge of the legally
recoverable debt as contended by him?
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 complaints?
4) What Order?
9. The above points are answered as under;
Point Nos.1 to 3 : In Negative,
Point No.4 : As per the final order,
for the following.......
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REASONS
10. Point Nos. 1 to 3: Since point Nos.1 to 3 are inter
linked and to avoid repetition they are taken together for
discussion. Before taking up the disputed facts, it is appropriate
to refer the undisputed facts at this stage itself, which can be
gathered from the material placed before this court. On going
through the rival contention of the parties, oral and
documentary evidence, it is clear that both complainant and
accused are acquainted with each other and the accused was
the tenant under the complainant with regard to the house of
the complainant situated at Pillyarkoil street, Phadi. It is also
admitted fact that the complainant and the accused entered into
rent agreement dtd. 1.10.2015 and in that regard the accused
has produced the Xerox copy of the rent agreement as per
Ex.D1 in respect of which there is no dispute. It is not in
dispute that the monthly rent payable by the accused was
Rs.14,000/- and the accused had deposited an interest free
advance of Rs.75,000/- with the complainant as security
deposit. It is clear that the accused had vacated the rented
premises in the month of November 2016 and the complainant
had not returned the security deposit received by him from the
accused. Further it is admitted fact that three cheques in
question were belonged to the accused and the same were
dishonoured for the reason "funds insufficient" when they were
presented for encashment by the complainant. It is not in
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dispute that after dishonour of the cheque, the complainant got
issued legal notice to the accused in each case and the same
was served on the accused for which the accused himself issued
common reply letter to 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
circumstances found in the evidence of the complainant at the
time of recording his statement U/s.313 of Cr.PC. At the time of
either recording plea or statement U/s.313 of Cr.PC, the accused
has not put up any positive case on his behalf. However on
going through the cross-examination of CW.1, it is found to be
the defence of the accused that inspite of payment of entire rent
arrears, the complainant did not return the cheques and filed
false complaints in order to grab the money 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
8
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 cheques were 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 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 cheques in question were
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
9
contended. In order to prove the case of the complainant in this
regard, the complainant being CW.1 reiterated the complaint
averments in his sworn statement which itself is treated as
examination-in-chief of the complainant in view of the decision
of the Hon'ble Apex court in Indian Bank Association and others
Vs Union of India and others - [W.P. (civil) No.18/2013]. In
addition to that the complainant has produced cheque
dtd.25.11.2016 for Rs.1,17,600/-, another cheque dated
25.11.2016 for Rs.7,852/-, one cheque dtd.16.11.2016 for
Rs.6,500/-, bank endorsements dtd.17.1.2017, 11.1.2017 (two
in number), office copy of the legal notice dtd.31.01.2017, two
potal receipts dated 31.01.2017, speed post acknowledgement,
returned speed post envelop and reply letter given by the
accused as per Ex.P1 to P7 in each case and also produced
undertaking letter issued by the accused as per Ex.P8 in
C.C.No.60703/2017. It is admitted fact that Ex.P1-cheque in all
three cases belonged to the accused and the same are signed by
him. Along with Ex.P1-cheques, the contents of Ex.P2-bank
endorsement dtd.17.01.2017 in C.C.No.60703/2017 and bank
endorsements dated 11.01.2017 in other two cases are
analyzed, it is clear that the complainant had presented the
cheques in question for encashment through his banker - HDFC
Bank and the same were dishonoured for the reason "funds
insufficient" by memo dated 17.01.2017 and 11.01.2017 as
found in bank endorsements. The contents of Ex.P3 to P7 in
each case are analyzed, it is clear that after dishonour of the
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cheque as found in Ex.P2, the complainant got issued legal
notice dtd.31.01.2017 in each case to the accused by registered
speed post and sent the notice to the two addressed of the
accused as shown in the cause title of the complaint. It is clear
that the said notice sent to the 2nd address of the accused was
served on the accused and notice sent to the 1st address was
returned to the sender by the postal authority for the reason
"left" by endorsement dated 4.2.2017. The contents of Ex.P7
clearly denote that the notice was served on the accused in each
case and he had sent common letter to the complainant. The
complainant has presented the present complaints on
04.03.2017 i.e after lapse of 15 days from the date of service of
notice on the accused and within 30 days thereafter. Hence on
perusal of these aspects, it is clear that prima facie the
complainant had presented the cheques in question within its
validity and got issued statutory notice within statutory time and
filed the present case within the prescribed period. Therefore on
going through these documents their remains no doubt that the
complainant had complied with all the technical requirements of
Sec.138 of N.I. Act in filing the present complaints.
14. Added to the above referred documentary evidence,
the complainant in his evidence by way of affidavit specifically
stated as to compliance of requirements of Sec.138 of N.I. Act.
On going through the evidence available on file, it is noticed that
virtually the accused has not disputed as to compliance of
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statutory requirements of Sec.138 of N.I. Act in filing the
present complaints. Therefore on conjoint reading of entire oral
and documentary evidence their remains no doubt that the
complainant had complied with all the requirements of Sec.138
of N.I. Act in presenting the present complaint. This being the
fact, as argued by the learned counsel for the complainant, in
the light of the dictum of the Hon'ble Apex Court, it goes without
saying that the statutory presumption available U/s.139 of N.I.
Act is required to be drawn and shall presume that the cheques
in question were issued towards discharge of legally recoverable
debt. It is also to be presumed that cheques were issued for
consideration on the date as mentioned therein.
15. As argued by the learned counsel for the accused it is
well settled principle of law through catena of decisions that,
though the statutory presumptions available U/ss.118 and 139
of N.I. Act are mandatory in nature, they are rebuttable one. It
is needless to say that when the complainant proves the
requirements of Sec.138 of N.I. Act, the onus of proof shifts and
lies on the shoulder of the accused to rebut the presumptions
available in favour of the complainant. It is the accused who has
to rebut the presumptions with all preponderance of probability
with clear, cogent and convincing evidence though not beyond
all reasonable doubt. The accused has to make out probable
defence by producing convincing acceptable evidence and
thereafter only burden shifts shoulder of the complainant. It is
12
also well settled law that to rebut the presumption, the accused
can also rely upon presumptions available under the Evidence
Act. It is also well settled principle that in order to rebut the
presumption it is not imperative on the part of the accused to
step into the witness box and he may discharge his burden on
the basis of the material already brought on record and on the
basis of the facts elicited in the cross-examination of the
complainant. It is also equally true that, if the accused places
such evidence so as to disbelieve the case of the complainant,
then the presumptions stand rebutted. This view is also
supported with the decision of the Hon'ble Apex court reported
in (2006) 3 SCC (Crl.) 30 - (Tamilnad Mercantile Bank
Ltd., Vs M/s.Subaiah Gas Agency and others), ILR 2009
(2) 1633 - (Kumar Exports Vs Sharma Carpets), AIR
2008 (SC) 1325 (Krishna Janardhan Bhat Vs. Dattathraya
G. Hegde), 2013 SAR (CRI) 373 - (Vijay Vs Laxman and
another) and AIR 2010 (SC) 1898 - (Rangappa Vs.
Mohan). Now the question that would arise is whether the
accused has rebutted the statutory presumptions available in
favour of the complainant.
16. In view of the defence taken by the accused as
against the claim of the complainant, now the evidence available
on file is analyzed, in support of the defence of the accused,
except cross-examination of CW.1 and Ex.D1 there is no any
other material before this court. So far as the Ex.D1 is
13
concerned, there is no dispute and the same is admitted by both
parties. Relying on the material placed before this court, the
first limb of the argument of the learned counsel for the accused
is that, the case of the complainant is vague, there is no clarity
in the case of the complainant as to his claim etc., and the
complainant has not furnished necessary material particulars so
as to accept the claim of the complainant. In this regard the
material placed before this court is analyzed, either in the legal
notice or in the complaint nowhere the complainant has stated
as to what was the due amount, in respect of which the
complainant is claiming due from the accused, in respect of
which amount the accused had issued cheques in question,
when and where they were issued. Therefore it is clear that the
complaints filed by the complainant is found to be very vague
without any particulars except stating that in order to discharge
the liability, the accused had issued cheques in question in his
favour. Apart from that even if the evidence affidavit of the
complainant is analyzed, the complainant went onestep ahead
and only stated as to issuance of cheques by the accused. He
has given up the word "in order to discharge of liability" as
stated in the complaint in his examination-in-chief affidavit.
17. In this regard the learned counsel for the complainant
would contend that since the accused has admitted the issuance
of cheque and also compliance of requirement of Sec.138 of N.I.
Act, there is no need of giving any more particulars in view of
14
the statutory presumptions available in favour of the
complainant. No doubt as argued by the learned counsel for the
complainant, the complainant had complied with all the
requirements of Sec.138 of N.I. Act in presenting of this
complaint and it is also admitted that the cheques in question
belonged to the accused and thereby their arises presumption as
to existence of legally recoverable debt in respect of the
cheques in question. But it is pertinent to note that the there is
no presumption as to extent of due amount and in respect of
which the amount is due. Under these attending circumstances,
the complainant is required to give better particulars so as to
appreciate the claim of the complainant. It is needless to say
that the complainant must disclose as to which due he is
claiming from the accused, what is the due amount, whether the
cheques in question were issued in respect of discharge of entire
due amount or part thereof. Just because there is presumption
as to existence of legally recoverable debt, the provision will not
exonerate the complainant from giving particulars of the due
amount and in respect of which transaction it relates to.
Therefore considering the averments made in the notice,
complaint as well as in the affidavit of the complainant, this
court found much substance in the argument of the learned
counsel for the accused. It is found that the complaint is so
vague and material particulars are locking in it. The
complainant has not disclosed material particulars either in his
notice or in the complaint. As argued by the learned counsel for
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the complainant, though the complainant has not stated certain
particulars as to due amount, during the course of cross-
examination, the complainant has stated as to due amount and
cheques relate to which transaction/due. But on going through
the evidence of the complainant in its entirety, once again this
court does not find clarity as to due amount and due is in
respect of which item. Therefore on going through the entire
material available on file, this court is of the considered view
that the argument of the learned counsel for the accused is
required to be accepted in this regard.
18. The second limb of the argument of the learned
counsel as well as the specific defence of the accused is that,
there is no any due from the accused in favour of the
complainant and the complainant has filed the present complaint
only to grab the money. In this regard the learned counsel for
the accused has also brought to the notice of this court as to
non-production of the rent agreement by the complainant. In
the light of the contention of the parties, on going through the
evidence on record it appears that the complainant claims due
of Rs.1,17,600/- in respect of the cheque in question in
C.C.No.60703/2017 with regard to arrears of rent from 1st April
2016 to 12th November 2016 at Rs.1,03,600/- and painting
charge of Rs.14,000/- . In this regard the complainant has
produced undertaking letter issued by the accused as per Ex.P8.
But as already stated the complainant has not given these
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particulars either in the notice or in the complaint. In the light
of the said claim now the evidence of the complainant is
analyzed, it is clear that the accused had deposited a sum of
Rs.75,000/- as security deposit and the said amount is with the
complainant only. As per the terms of rent agreement i.e Ex.D1
it is found that the complainant being the land lord entitled to
adjust the security deposit towards due amount from the tenant
i.e from the accused. In this regard evidence is analyzed, the
complainant specifically stated that "he did not return the security
deposit of Rs.75,000/- to the accused at the time of vacating the house"
and also deposed that "the actual due amount from the accused, after
deducting the security amount is Rs.42,600/-. Actual rent due from the
accused as on the date of vacating the house after deducting the security
deposit was only Rs.42,600/-". This evidence of the complainant
reveals that he is claiming rent due of Rs.1,17,600/- from the
complainant and after deducting the security deposit the rent
due was only Rs.42,600/-. Nowhere the complainant has
claimed the painting charges from the accused as found in
Ex.P8. Even in this regard the evidence of the complainant
himself disclose that the house was in good condition at the
time of vacating the house by the accused.
19. It is also noticed from the evidence of the complainant
that he is claiming Rs.33,000/- towards maintenance charges in
addition to the rent due of Rs.42,600/- and thereby due amount
of Rs.75,600/-. But it is pertinent to note that nowhere the
complainant has claimed Rs.33,000/- towards maintenance
17
charges from the accused except in his cross-examination. So
far as the said claim of the complainant is analyzed, his
evidence itself disclose that the maintenance charges to be paid
to the association which maintenance the building and not to the
complainant. However the complainant has stated that since
the accused did not pay the maintenance charges to the
association, he himself paid the said amount to the association
on behalf of the accused. But this version is not supported with
any documentary evidence. If at all maintenance amount was
due as put up by the complainant, it should have find the place
in Ex.P8 itself. The complainant has not produced any document
to show that he had paid maintenance charges to the
association as put up by him. In this regard rent agreement is
analyzed, it clearly denotes that it is the accused who has to pay
the quarterly maintenance charges to the flat association at the
specified due date. Nowhere Ex.D1 authorize the complainant to
clear the said due amount. If at all the maintenance charges
was due in favour of flat association, it is the flat association
which has to take appropriate steps against the accused and the
complainant cannot claim the amount in that regard. Therefore
the claim of the complainant with regard to Rs.33,000/- as put
up by him is found to be baseless.
20. Along with the above aspects, it is also to be noted
that admittedly the accused had sent reply letter to the notice of
the complainant as per Ex.P7. Now Ex.P7 is analyzed, it
18
disclose that total amount found in three cheques i.e
Rs.1,31,952/- includes rental advance of Rs.70,000/- and also
includes an amount equal to one months rent taken unilaterally
for repairs and maintenance. The complainant has not stated
anything in this regard. As already stated the complainant had
received Rs.75,000/- as security deposit. Further the contents
of Ex.P8 reveal that the accused had given post dated cheque
dated 25.11.2016 along with Ex.P8. In Ex.P8 it is stated that
the owner should pay back the security deposit of Rs.75,000/-.
Therefore one thing is certain that Ex.P1-cheque for
Rs.1,17,600/- was given along with Ex.P8 and as per the terms
of Ex.P8, the complainant has to return security deposit.
Admittedly the complainant had not returned security deposit
and after deducting the security deposit, the accused was in due
of Rs.42,600/- only towards rent amount. Therefore it is clear
that as on the date of presentation of Ex.P1-cheque for
Rs.1,17,600/-, there was no such due from the accused in
favour of the complainant. Therefore Ex.P1-cheque for
Rs.1,17,600/- cannot be regarded as the same was issued in
favour of the complainant towards discharge of that amount. In
view of this aspect and in the light of the provisions of Sec.138
of N.I. Act, the cheque for Rs.1,17,600/- cannot be regarded as
the same was issued for the discharge of existing debt or
liability or part of debt or liability as put up by the complainant.
The provisions of Sec.138 of N.I. Act makes it very clear that
the cheque issued must be in respect of discharge of whole or
19
part of any debt or other liability. But if the cheque amount
itself is more than whole debt/liability, then the provisions of
Sec.138 of N.I. Act cannot be invoked and it cannot be said that
the said cheque has been issued in discharge of any debt or
liability. In this regard this court is also being guided by the
Division Bench ruling of the Hon'ble High Court of Kerala
reported in 2009 (2) DCR 40 - (Joseph Sartho Vs Gopinathan
Nair) wherein Hon'ble High Court of Kerala held that where the
amount of cheque is larger than the amount of debt or liability
in that situation the dishonour of the cheque would not be an
offence. In the present case in hand it is noticed that
admittedly the due amount claimed by the complainant is lesser
than the cheque amount. Therefore it cannot be held that the
accused has committed the offence punishable U/s.138 of N.I.
Act with regard to Ex.P1-cheque for Rs.1,17,600/- involved in
C.C. No.60703/2017.
21. Apart from the above aspect, it is also noticed that
even after filing of the complaints, admittedly the accused had
paid Rs.22,500/- in three installments to the complainant.
However the said payments are found to be the subsequent
payments and that payments will not effect the case of the
complainant if the actual due was Rs.1,17,600/- in favour of the
complainant as on the date of presentation of cheque.
Therefore considering these aspects, this court is of the
considered view that the offence punishable U/s.138 of N.I. Act
20
cannot be attracted in respect of cheque for Rs.1,17,600/- as
contended by the complainant.
22. In C.C.No.60702/2017 the complainant has claimed
due amount of Rs.7,852/- and so also Rs.6,500/- in
C.C.No.60701/2017 from the accused. But it is pertinent to
note that as already discussed nowhere the complainant has
stated the purpose of for which the said cheques were issued
and when issued. Only during cross-examination, the
complainant has stated that the cheque for Rs.7,852/- i.e Ex.P1
in C.C. No.60702/2017 was issued towards electricity charge
dues and cheque for Rs.6,500/- i.e Ex.P1 in C.C.No.60702/2017
was issued towards payment of transport charges which was
paid by the complainant to the lorry owner for transporting the
house hold articles of the accused. But to support the said
claim, the complainant has not produced any piece of document.
If at all the electricity charges are being paid by the
complainant, the complainant could have produced the relevant
available document i.e electricity bill and receipt for having paid
the electricity charges. No such documents are produced before
this court to support the claim of the complainant. Similarly the
claim of the complainant for Rs.6,500/- as stated by him is also
not supported with any voucher issued by lorry owner or any
other document in that regard. As argued by the learned
counsel for the accused, on going through the evidence of the
complainant himself, these claims of the complainant are found
21
to be inconsistent with his own evidence. During the course of
cross-examination the complainant has claimed rent due of
Rs.42,600/- and Rs.33,000/- towards maintenance charges in
all due of Rs.75,600/- from the accused. Nowhere the
complainant has stated as to due of Rs.6,500/- towards
transportation charges and Rs.7,852/- towards electricity
charges from the accused. During cross-examination he has
specifically stated that "the accused is liable to pay a sum of
Rs.33,000/- towards maintenance charges and Rs.42,600/-
towards rent due and in all Rs.75,600/-. Except Rs.75,600/- the
accused is not liable to pay any other amount to me". This
version of the complainant himself makes it very clear that there
was no any other due except Rs.75,600/-. Therefore the claim
of the complainant with regard to electricity charges and
transport charges found to be suspicious and that cannot be
accepted.
23. As argued by the learned counsel for the complainant
in this case the accused has not step into the witness box in
support of his defence. But it is pertinent to note that just
because the accused has not stepped into the witness box that
alone cannot be a ground for accepting the case of the
complainant. As already discussed it is not imperative on the
part of the accused to step into the witness box in support of his
defence. The accused can prove or probabalize his defence by
22
cross-examining the complainant. Therefore the non-
examinaton of the accused cannot be made much in this case.
24. Thus for the reason discussed above, this court is of
the considered view that, though the complainant is entitled for
presumptions U/s.139 and 118 of N.I. Act, the same are
rebutted by the accused. Per contra, in the light of the available
evidence, it is clear that the complainant has not revealed the
material fact and his claim as to existence of due amount is also
found to be unacceptable one. The contention of the accused is
found to be more probable and convincing one in the light of the
evidence on record. In the decision reported in 2013 (1) DCR
326 - (Nandi Agro Fertilizers Vs D. Satish) our Hon'ble High
Court held that "If there are circumstances to prove the
probable defence, that itself is sufficient to dismiss the
complaint". This court is of the considered view that this
principle held in the said decision is applicable to the facts of the
present case also. At this stage, this court is also being guided
by the various rulings relied by the learned counsel for the
accused. However on going through the facts and
circumstances of the relied decision and facts and circumstances
of the case in hand along with evidence made available, there
remains no doubt that none of the said decisions could be made
applicable to the case in hand. Hence considering all these
aspects, this court is of the considered view that the
complainant has failed to prove the commission of the offence
23
punishable U/s.138 of N.I. Act as against the accused and so
also issuance of cheque in question towards discharge of debt as
put up by him. Therefore, Point Nos.1 and 2 are required to be
answered in Negative. It is needless to say that when the
complainant has failed to prove Point Nos.1 & 2 in his favour as
contended, it goes without saying that he is not entitled for any
relief as sought for in this cases. Therefore Point Nos.1 to 3 are
required to be answered in negative and answered accordingly.
25. 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 is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act in all the three cases.
The bail bond of accused stands cancelled. The cash security deposited by the accused is ordered to be refunded in his favour in accordance with law.
Keep the original judgment in C.C.60703/2017 and copy of the same in C.C.No.60701/2017 and C.C No.60702/2017.
(Dictated to the stenographer, typed by him, transcript corrected by me and pronounced in the open court on this the 11th Day of April, 2018) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 24 ANNEXURE IN C.C. NO.60703/2017 Witnesses examined for the complainant:
PW.1 : Sri. P. Bharath Kumar Witnesses examined for the defence:
NIL NIL Documents marked for the complainant:
Ex.P1 : Cheque Ex.P2 : Bank endorsement Ex.P3 : Legal Notice Ex.P4 : Two postal receipts Ex.P5 : Speed post acknowledgment Ex.P6 : Returned speed post cover Ex.P7 : Reply letter Ex.P8 : Undertaking letter
Documents marked for the defence:
Ex.D1 : Rent agreement (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 25 COMMON ANNEXURE IN C.C. NOS.60701/2017 AND C.C. NO.60702/2017 Witnesses examined for the complainant:
PW.1 : Sri. P. Bharath Kumar Witnesses examined for the defence:
NIL NIL Documents marked for the complainant:
Ex.P1 : Cheque Ex.P2 : Bank endorsement Ex.P3 : Legal Notice Ex.P4 : Two postal receipts Ex.P5 : Speed post acknowledgment Ex.P6 : Returned speed post cover Ex.P7 : Reply letter
Documents marked for the defence:
Ex.D1 : Xerox copy of rent agreement (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU