Bangalore District Court
Office At # 175 vs S/O Rangaswamy on 1 March, 2021
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 1st DAY OF MARCH 2021
PRESENT: SRI.R.MAHESHA. B.A.,L, LLB.,
XXIV ADDL. SCJ &
ACMM & MEMBER - MACT
BENGALURU.
1. Sl. No. of the Case CC.No.5911 of 2018
2. The date of 12-12-2018
commencement of
evidence
3. The date of closing 12-12-2018
evidence
4. Name of the M/s Nisarga Merchants Finance,
Complainant Office at # 175, 1st main road,
1st block, KRS Gowda Extension,
HMT Layout,
Nagasandra post,
Bangalore-560073.
Represented by its SPA holder
Mr.Nagaraju.
(By Sri.Harish Kumar. E-Advocate)
5. Name of the Chandrashekar
Accused S/o Rangaswamy,
Mathru Shree Electronics,
Building owner Rajamma,
Opp to Roopa theatre,
Nelamangala-562123.
(By Sri.R.N.S-Advocate)
6. The offence U/s.138 of the Negotiable Instruments Act
complained of
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7. Opinion of the Accused found not guilty
judge
JUDGMENT
The complainant filed this complaint Under Section 200 of Cr.P.C against the 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 case is as under:
The complainant is a Firm and it is carried Finance Business and lend the money to public at large. The accused had borrowed loan some of Rs.2,96,300/- from the complainant and agreed to repay the loan amount on installment basis. The accused has not paid the installments regularly as agreed by him and he is in due payment of Rs.2,97,000/-. That the accused issued a cheque bearing No.089888 dated 24-09-2018 drawn on Syndicate Bank, B.H road, Nelamangala, towards the discharge of the said loan due amount. That the complainant presented the said cheque to the Bank for encashment but which was returned with an endorsement as "Funds Insufficient" 3 C.C.No.5911 OF 2018
SCCH-26 on 11.10.2018. It was brought to the notice of the accused through legal notice dated 12-10-2018 calling upon the accused to make a payment for the amount due, but neither the accused has replied the notice nor made payment of the amount due. Hence filed this complaint.
3. After filing of this complaint, case was registered as P.C.R. and sworn statement of the complainant was recorded. Thereafter cognizance was taken and registered in Crl.Reg.No.III and summons issued to the accused. In response of summons, accused appeared through his counsel and got enlarged him on bail. The plea was recorded, read over and explained to the accused he pleaded not guilty and claims to be tried. Hence the case is posted for complainant evidence.
4. In order to establish his case, SPA holder and Manager of the complainant company himself examined as PW-1 and got marked 4 documents as Ex-P1 to 4 and closed his side.
5. The case was posted for cross-examination of PW-1, but neither the accused nor his counsel turned-up. Hence the cross examination of PW-1 taken as Nil and statement U/s 313 Cr.P.C., was dispensed with.
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6. Upon perusal of the material placed on record, the following points arise for my consideration :-
POINTS
1. Whether the complainant has made-out the case that the accused has issued a cheque bearing No.089888 dated 24-09-2018 for Rs.2,97,000/-
drawn on Syndicate Bank, BH road, Nelamangala, to discharge the legally enforceable debt or liability due to the complainant and on presentation of cheque it was returned without encashment with an endorsement as "Funds Insufficient'' and accused failed to make any payment within the stipulated period and thereby accused had committed an offence punishable under section 138 of N.I Act?
2. What order?
7. My answer to the above points is as follows :-
Point No.1 : In the Negative Point No.2 : As per final order for the following :-5 C.C.No.5911 OF 2018
SCCH-26 REASONS
8. POINT NO.1 :- The provision of Section 101 of the Indian Evidence Act provide that the burden of proof rests on the party who substantially asserts it and not on the party who denies it, in fact burden of proof means that a party has to prove an allegation before he is entitle to a judgment in her favour. Further law U/s 103 of Indian Evidence Act amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the fact in issue.
9. The burden lies on the complainant to prove the complainant complied with mandatory requirements of Section 138 of NI Act.
The three ingredients of offence U/s 138 NI Act are as under.
1. That there is a legally enforceable debt
2. That cheque was drawn from the account of bank for discharge in whole or in part of any debt or any other liability which presuppose legally enforceable debt
3. That the cheque so issued had been returned due to insufficiency of funds.
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10. The proviso appended to the said section provides for compliance with legal requirements before the complaint/petition can be acted upon by court of law.
Section 118A of N.I Act deals with special rule of evidence and stated that, every negotiable instrument act is deems to have been drawn for consideration. Section 139 of NI Act enables the court to presume, unless contrary is proved, that the holder of the cheque received the cheque of the nature referred in Section 138, in whole or in part, of any debt or other liability.
11. The presumption available U/s 118 and 139 of NI Act is rebuttal in nature, the accused can rebut the same by either entering into the witness box or effectively cross examine the complainant and his witness.
12. PW-1 in his affidavit in lieu of examination-in-chief reiterated the facts of the complaint once again. Ex-P1 is the cheque bearing No.089888 dated 24-09-2018 for Rs.2,97,000/- drawn on Syndicate Bank, BH road, Nelamangala, but the said cheque dishonoured as per Ex-P2 and thereafter legal notice issued as per Ex-P3. Thereafter within stipulated period the complainant filed this complaint. Hence the complainant complied all the ingredients of Section 138 of NI Act. 7 C.C.No.5911 OF 2018
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13. I have perused the evidence of the complainant, it discloses that complainant company SPA holder examined as PW-1 and produced some documents and marked as Ex-P1 to
4. But even after granting sufficient time, he did not appeared for tendering the cross examination. At this situation. It is profitable to refer and relied Hon'ble Apex court decision. In the case of Vidyadhara Vs Manik Rao and another reported in AIR 1999 Supreme court 1441, it is held that Section 114 of Indian Evidence Act-...adverse inference- party to suit-not entering the witness box-give rise to inference adverse against him. "Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to cross examination by other party a presumption would arise that the case setup by him is not correct". In the instant case, complainant produced exhibits, but his case averments not supported by him as he did not tendering for cross examination. He avoided the witness box, so that he may not be cross examined, this itself enough to 8 C.C.No.5911 OF 2018 SCCH-26 reject the claim of complainant. Section 3 of Indian Evidence Act clearly defined "Evidence" means and includes -
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.
Further this issue was considered by Hon'ble High Court of Karnataka in case Sannarevannappa Bharamajappa Kalal Vs State of Karnataka ILR 1990 Kar 1205 Hon'ble Apex court observed that -
"complete evidence calls for cross examination not examination-in-chief alone. If witness does not submit to cross examination after examination-in-chief court precluded from acting on such incomplete evidence"
The statement of a witness to be called "Evidence" must be capable of being tested in cross examination, otherwise, it will certainly not be legal evidence. The complainant has to blame 9 C.C.No.5911 OF 2018 SCCH-26 itself for the predicament in which it has tendered by not tendering himself cross examination.
14. The present proceedings is quasi criminal, but ultimate effect is penal in nature, when a person liable to be sentenced for imprisonment upto two years complainant cannot be given any concession except to prove the sum and substance of plea beyond reasonable doubt. To prove the charge beyond reasonable doubt/evidence must be clincher and dear establishing all the ingredients constituting offence U/s 138 of NI Act. When complainant evidence did not establish the transaction, nor it establish that the cheque was issued in respect of existing debt or legal liability, mere issuance of it and its dishonour does not constitute offence. Hence my answer to point No.1 in the Negative.
15. Point No.2: In the light of the findings given on point No.1 and in the facts and circumstances of the case, I proceed to pass the following ;-
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SCCH-26 ORDER By Acting U/s 255(1) of Cr.P.C the accused is hereby acquitted for the offence punishable U/s 138 of N.I Act.
The bail bond of the accused stands canceled. (Dictated to the stenographer, through online computer, thereof is corrected and then pronounced by me in the open Court on this the 1st March 2021) (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW-1: Nagaraju DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P-1: Cheque Ex.P-1 (a): Signature of the accused Ex.P-2: Bank memo Ex.P-3: Legal Notice Ex.P-4: Track consignment
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
NIL DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
NIL (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.