Bangalore District Court
M/S. Gokaldas Warehousing vs Mr. Rajagopal B.M on 24 January, 2023
1 C.C. NO.2793/2020
KABC030101492020
Presented on : 10-02-2020
Registered on : 10-02-2020
Decided on : 24-01-2023
Duration : 2 years, 11
months, 14 days
IN THE COURT OF XXVII ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
Present: Sri. H. Satish B.A.L. LL.B., LL.M.,
XXVII A.C.M.M Bengaluru.
Dated: This the 24 th day of January 2023.
C.C. NO.2793/2020
Complainant M/s. Gokaldas Warehousing
Corporation,
having office at II Floor,
Gokaldas Chambers,
No.222, 5th Main Road,
Sadashivnagar, Bellary Road,
Bengaluru -560080.
Duly represented by its Group
General Manager,
Sri. Sushilkumar.S.Kalro.
Aged about 59 years,
S/o.Mr.Shamdas Kalro.
(By Sri. Sandeep Lahiri., Advocate)
V/s.
2 C.C. NO.2793/2020
Accused Mr. Rajagopal B.M,
Aged : Major,
S/o. Mr.Munivenkatappa,
Ms.Bottle and Glass Restobar,
No.276, 2nd Floor,
Defence Colony,
100 Feet Road,
Indiranagar,
Bengaluru -560038.
(By Sri. D. Manjunath
Advocate.,)
Offence U/s.138 of Negotiable
Instruments Act
Plea of the accused Claims to be tried
Final Order ACQUITTED
Judgment Date 24/01/2023
****
JUDGMENT
The complainant firm has filed complaint U/Sec.200 of Code of Criminal Procedure against the Accused for the offence punishable U/Sec.138 of Negotiable Instrument Act.
3 C.C. NO.2793/2020
2. The facts germane for disposal of the instant complaint can be summarized as per following:-
It is the case of the complainant firm that, it is a registered partnership firm engaged in the business of warehousing and stated that, the accused towards part liability issued a cheque bearing No.009476 dated:
16/08/2019 for a sum of Rs.10,00,000/- drawn on M/s.ICICI Bank Ltd., Indira Nagar Branch, Bengaluru in favour of the complainant firm and sought time to repay the balance amount of Rs.35,00,000/- within a short span of time and assured the complainant firm that the said cheque would be honoured on its presentation.
3. It is stated that, based on the instructions of the accused, the complainant firm presented the said cheque for encashment on 21/10/2019 through its Banker ie., M/s.Kotak Mahindra Bank, Sadashiva 4 C.C. NO.2793/2020 Nagar Branch, Bengaluru and the same got dishonoured with an endorsement dated: 22/10/2019 stating "Funds Insufficient" . Thereafter, the complainant firm got issued legal notice dated:
19/11/2019 to the accused through RPAD calling upon him to pay the cheque amount within 15 days from the date of receipt of the notice and the said notice was served upon the accused on 22/11/2019.
After receipt of notice, the accused has not repaid the amount covered under the aforesaid cheque. Hence, this complaint.
4. The sworn statement of the Group General Manager/ Authorized Representative of the complainant firm by name Mr.Sushilkumar.S.Kalro was recorded. As the complainant firm had complied the mandatory requirements of Section 138 of Negotiable Instrument Act, the Court issued summons 5 C.C. NO.2793/2020 to the Accused. After service of summons, Accused entered appearance and was enlarged on bail.
5. The plea of the Accused was recorded and the substance of the accusation was read over to the accused in the language known to him and the same was explained, to which, the accused pleaded not guilty and submitted he has defence to make.
6 . In order to prove the case, the Group General Manager/ Authorized Representative of the complainant firm by name Mr.Sushilkumar.S.Kalro got himself examined as PW.1 and got marked Ex.P.1 to Ex.P.13 documents.
7. The statement of accused under section 313 Code of Criminal Procedure was recorded and the accused denied the incriminating evidence appearing 6 C.C. NO.2793/2020 against him. The accused got himself examined as DW.1 and got marked Ex.D.1 to D.14 documents. The accused also got examined one witness by name Manjunath.M as DW.2.
8. Heard arguments on both sides. I have perused the materials on record.
9. The following points arise for my determination:
(I) Whether the complainant firm proves that towards discharge of liability due and payable, the accused issued cheque bearing No.009476 dated:
16/08/2019 for a sum of Rs.10,00,000/- drawn on ICICI Bank, Indira Nagar Branch, Bangalore?
(ii) Whether the complainant firm proves that accused has committed an offence punishable U/sec.138 of Negotiable Instrument Act?
(iii) What order?7 C.C. NO.2793/2020
10. My answer to the above points is as per following:-
Point No.1& 2 : In the Negative Point No.3 : As per the final order, for the following :-
R EAS O N S
11. Point Nos.1 and 2 : In order to prove the case, the Group General Manager/Authorized representative of the complainant firm by name Mr. Sushil Kumar.S.Kalro got himself examined as PW.1 and the affidavit filed by him in lieu of sworn statement was treated as examination in chief as per the dictum laid down in the ruling of the Hon'ble Apex Court of India, reported in (2014) 5 SCC 590 (Indian Bank Association & Ors V/s. Union of India & Ors). PW1 got marked Ex.P-1 to Ex-P13 documents.
12. The complainant firm has exhibited the following Ex.P-1 to Ex.P-13 documents. Ex.P-1 is the 8 C.C. NO.2793/2020 Board resolution dt:23/12/2019, Ex.P-2 is the Statement of Accounts, Ex.P.3 is the cheque dated 16/08/2019, Ex.P-3(a) is the signature of the Accused, Ex.P.4 is the Bank endorsement dt:22/10/2019, Ex.P-5 is the Office copy of Legal notice dated 19/11/2019, Ex.P-5(a) and 5(b) are the postal receipts, Ex.P-6 and P-7 are the Postal acknowledgments, Ex.P-8 is the certified copy of the Deed of Partnership dated 12/04/2011, Ex.P-9 is the certified copy of the Deed of Retirement, dt:01/11/2011, Ex.P.10 is the certified copy of the Acknowledgement of Registration of Firms, Ex.P.11 and P.12 are the two Postal track Consignments, Ex.P.13 is the certificate U/s. 65B (4) of Indian Evidence Act.
13. The learned counsel for the complainant firm vehemently argued that the Accused/DW.1 has 9 C.C. NO.2793/2020 admitted that Ex.P-3 cheque belongs to him and that signature appearing thereon belongs to him and argued the Accused has taken a plea that Ex.P.5 notice was not served upon him and argued the complainant firm has produced Ex.P5(a) &(b) Postal receipts to establish that Ex.P5 notice was sent through Registered post and the complainant firm has also produced Ex.P6 & 7 postal acknowledgements to establish that Ex.P5 notice was served upon the accused and argued no positive evidence is placed on record by the accused to establish that he was not working in the address shown in the complaint or that he was not resident of the said address and argued the accused has categorically admitted receipt of Rs.45,00,000/- and argued the accused has taken a stand that he acted as a mediator between his brother and the complainant firm to resolve the dispute in connection with encroachment of lands and he has 10 C.C. NO.2793/2020 also produced Ex.D1 document and also he has examined his brother as DW2 and argued the accused himself has admitted that he is not a party to the Ex.D1 document and the testimony of DW2 and the documents produced by DW2 is of no consequence to establish that accused is not liable to pay any amount to the complainant firm and argued the accused himself has admitted receipt of Rs.45,00,000/- from the complainant firm and argued by examining PW1 and by producing all relevant document and also by eliciting material answers from DW1 & DW2, the complainant firm has ably proved its case and the accused has failed to rebut the presumption as contemplated U/sec. 139 of the Negotiable Instruments Act and sought to convict the accused.
14. Per Contra the learned counsel for the Accused stoutly argued that the complainant firm has 11 C.C. NO.2793/2020 not narrated in the Ex.P5 notice and in the complaint about the exact transaction that took place between the complainant firm and accused and argued the purpose of lending sum of Rs.45,00,000/- by the complainant firm to the accused is not narrated in the Ex.P5 notice and complaint by the complainant firm and argued the same is admitted by PW1 also and argued PW1 in his cross examination for the 1 st time has deposed that the complainant firm paid sum of Rs.45,00,000/- to the accused for procuring lands and argued the accused admits receipt of Rs.45,00,000/-
from the complainant firm and argued the accused acted as a mediator to resolve dispute between his brother and the complainant firm in respect encroachments of lands and to establish the same, the accused has examined his brother as DW2 and he has produced Ex.D1, D3 to 12 documents and argued Ex.P5 notice was not served upon the accused and 12 C.C. NO.2793/2020 that the accused at no point of time was working in the address shown in the complaint or residing in the said address and argued no positive evidence is placed on record by the complainant firm to establish that the accused was residing or working in the address shown in the complaint and the Managing Partner of the complainant firm is not having proper authority to issue Ex.P5 notice or to initiate action against the accused as per Ex.P8 and also aruged there is no proper authority issued by the complainant firm to PW1, to depose on behalf of the complainant firm and argued the accused has raised a probable defence by eliciting materials answer from PW1 and also by examining himself and his brother and sought to acquit the accused. In support of his arguments the learned counsel for the accused relied on the following rulings:
13 C.C. NO.2793/2020
1. (2006) 6 SCC 39 decided between M.S. Narayana Menon @ Mani V/s State of Kerala and Another.
2. (2010) 11 SCC 441 decided between Rangappa V/s Sri. Mohan
3.(2009) 2 SCC 513 decided between Kumar Exports V/s Sharma Carpets
4. (2007) 6 SCC 555 decided between C.C. Alavi Haji V/s Palapetty Muhammed and Another
5. Crl.Appeal No. 270/2022 decided by the Hon'ble Apex Court on 22/02/2022 between M/s. TRL KROSAKI RE-
FRACTORIES LTD., V/s M/s. SMS Asia Pvt Ltd., and Another
15. I have gone through the rulings relied on by the accused and I have taken note of the principles laid down in the aforesaid rulings and I have also adopted the same while deciding the instant case. That apart, on considering the arguments addressed by the learned counsel for the complainant and accused, before adverting to the oral evidence let in by the complainant and accused and also without touching upon the defence set up by the accused, the documents produced by the complainant firm which are at Ex.P3 to P.7 prima-facie discloses that the 14 C.C. NO.2793/2020 complainant firm has discharged initial burden of proving issuance and presentation of Ex.P3 cheque, bouncing of cheque, issuance of notice and its service. At this juncture, I find it relevant to quote the ruling relied on by the accused reported in 2010(11) SCC 441, decided between Rangappa Vs. Sri. Mohan wherein the Hon'ble Apex Court held that:
" Presumption under section 139 of Negotiable Instrument Act, 1881 includes the presumption of the existence of legally enforceable debt or liability. That presumption is required to be honoured and if it is not so done, the entire basis of making these provision will be lost. Therefore, it has been held that, it is for the Accused to explain his case and defend it once the fact of cheque bouncing is prima-facie established. The brain is on him to disprove the allegations once a prima-facie case is made out by the complainant ".
16. In the aforesaid ruling the Hon'ble Apex court has held that, once the complainant 15 C.C. NO.2793/2020 establishes bouncing of cheque, then it is for the accused to disprove the allegations and also it is for him/her to rebut the presumption as contemplated under section 139 of Negotiable Instrument Act by placing acceptable evidence . In the ruling decided by the Hon'ble Apex Court in Crl.Appeal No. 1233 - 1235 of 2022 decided on 12/08/2022 between Rasiya V/s Abdul Nazar the Hon'ble Apex court:
at paragraph 7 held that as per Sec.139 of the Negotiable Instruments Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Sec.138 of the Negotiable Instruments Act for discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the complainant that the cheque was issued by the accused and the signature and the issuance of cheque is not disputed by the accused, in that case, the onus will shift on the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption U/sec. 139 of the Negotiable Instruments Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any 16 C.C. NO.2793/2020 debt or other liability which is in favour of the complainant/ Holder of cheque, in that case, it is for the accused to prove the contrary.
17. In the light of the principle laid down above, it is worth to note that, the accused/DW.1 in his examination in chief at paragraph 1 and 2 deposed that the owner of the complainant firm by name Rajendra Hinduja is known to him and his brother was having lands measuring 2 acres in sy.no.112 situated at Beemakkanahalli and deposed adjacent to the said lands, the lands in sy. no.117, 119 and 127 belonging to the complainant firm was situated and deposed in the lands bearing Sy.No. 112 belonging to his brother, there was a "Kalyana Mantapa" and his brother had encroached the lands belonging to the complainant firm and had constructed "Kalyana Mantapa" and in this regard there was a dispute between his brother and the complainant firm and to resolve the said 17 C.C. NO.2793/2020 dispute he had taken part as a "MEDIATOR" and deposed complainant firm had told him orally that, they would give him Rs.45,00,000/- and the complainant firm paid Rs.5,00,000/- through RTGS to his bank account in the year 2018 and paid Rs.40,00,000/- through cheque and deposed till he resolves the dispute, the complainant firm had taken Ex.P.3 signed cheque from him and also deposed that, he had written amount in words and figures in the said cheque and had signed at Ex.P.3 cheque.
18. During cross examination dated:
22/07/2022, at paragraph 3 DW.1 deposed ನಪ .3 ಚಕಕ ಕ ದ ಎಸದರ ಸರ. ನಪ.3 ರಲ ಇರಕವ ಸಹ ನನನದಕ. DW.1 ನನಗ ಸಸಬಸಧಸದಕ also deposed that he had issued Ex.P.3 cheque to the partner of the complainant firm by name Hinduja in the year 2018 and deposed he do not remember the date. At paragraph 4 DW.1 deposed ನಪ.3 ಚಕಕನಕ ನ 18 C.C. NO.2793/2020 ಪರರದಗ ನನಕ ಅವರಸದ 40 ಲಕ ಪಡದ ದನ ಕಕಟಟರಕತತತನ.
Therefore, before going into the stand taken by the accused, the said admission of DW.1 makes it clear that the accused/ DW.1 is admitting his signature at Ex.P.3 cheque and he has also admitted that Ex.P.3 cheque belongs to him and the accused has also admitted issuance of cheque infavour of the complainant firm. As such, this court will have to draw presumption as contemplated U/sec.139 of Negotiable Instruments Act that Ex.P.3 cheque was issued by the accused towards discharge of liability.
19. At this juncture, I find it appropriate to quote the ruling relied on by the accused reported in (2009) 2 SCC 513 decided between Kumar Exports V/s. Sharma Carpets, the Hon'ble Apex Court at paragraph 20 & 21 has explained the course to be adopted by the accused to disprove the case of the complainant and to rebut the presumption as envisaged U/sec. 139 of the Negotiable Instruments Act. At paragraph 20, it is held that, the accused in a trial U/sec. 138 of the Negotiable 19 C.C. NO.2793/2020 Instruments Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt exist. To rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonable doubt as his expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and there was no debt or liability to be discharged by him. However, the court need not insist in every case, that the accused should disprove the non- existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that, bare denial of the passing of the consideration and the existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration which, the court may either believe that the consideration and debt did not exist or there non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from 20 C.C. NO.2793/2020 adducing direct evidence to prove that the note in question was not supported by the consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances, so relied upon or compelling, the burden may like wise, shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Sec.114 of the Evidence Act, to rebut the presumption U/sec. 118 & 139 of the Negotiable Instruments Act.
At paragraph 21, the Hon'ble Apex Court held that the accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases from the case set out by the complainant, that is the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shift back to the complainant and, therefore, the presumption U/sec. 118 and 139 of the Negotiable Instruments Act will not again come to the complainant's rescue.
21 C.C. NO.2793/2020In this backdrop, now I enter in to the domain of defense set up by the accused to ascertain whether the accused has been able to rebut the presumption as contemplated U/sec.139 of the Negotiable Instruments Act, for which I find it appropriate to examine each and every aspect in detail. I. AUTHORITY OF PW.1
20. It is to be noted that, the accused has taken defence that, Managing partner of the complainant firm is not having authority to issue Ex.P.5 notice to the accused and that he was not having authority under Ex.P.8 to institute the instant complaint against the accused. During cross examination at paragraph 1, it is suggested by the accused to PW.1 that as per Ex.P.8 Rajendra J. Hinduja was not having authority to file instant complaint against the accused for which PW.1 deposed as per Ex.P.8 (Para 12) the said 22 C.C. NO.2793/2020 Rajendra J. Hinduja is having power to institute complaint against the accused. On careful perusal of Ex.P.8, at paragraph 12, it is mentioned that, the Rajendra J. Hinduja and the second party Veena R. Hinduja were primarily responsible for the day to day affairs of the firm and notably, the PW.1 has produced Ex.P.1 and the same is signed by three partners of the complainant firm. It is to be noted that, PW.1 is the General Manager of Gokuldas Group.
21. In the ruling relied on by the accused reported in (2022) AIR (SC) 1315 decided between M/s. TRL KROSAKI REFRACTORIES LTD., V/s M/s. SMS Asia Private Ltd., and another, the Hon'ble Apex Court at paragraph 17, held that "the position that would emerge is that when a company is the payee of the cheque based on which a complaint is filed U/sec. 138 of the Negotiable Instruments Act, the complainant 23 C.C. NO.2793/2020 necessarily should be the company which would be represented by an employee who is authorized. Prima-facie, in such a situation the indication in the complaint and the sworn statement (either orally or by a affidavit) to the effect that the complainant (Company) is represented by an authorized person who has knowledge, would be sufficient. The employment of the terms "specific assertion as to the knowledge of the Power of attorney holder" and such assertion about knowledge should be "said explicitly" as stated in A.C. Narayanan V/s State of Maharastra and Another (2014) 11 SCC 790 cannot be understood to mean that the assertion should be in any particular manner, much less only in the manner understood by the accused in the case. All that is necessary is to demonstrate before the learned Magistrate that the complaint filed is in the name of the "Payee" and if the person who is prosecuting the complaint is different from the payee, the authorization there for and that the contents of the complaint or within his knowledge. When the complainant / Payee his company, an authorized employee can represent the company. Such averment and prima-
facie averment is sufficient for the learned 24 C.C. NO.2793/2020 Magistrate to take cognizance and issue process. If at all, there is any serious dispute with regard to the person prosecuting the complaint not being authorized or if it is to be demonstrated that the person who filed the complaint has no knowledge of the transaction and, as such that person could not have instituted and prosecuted the complaint, it would be open for the accused to dispute the position and establish the same during the course of the trial".
In the light of the principle laid down above, it is required to be noted that, In the complaint and in the affidavit it is stated that, PW.1 is personally aware of the transactions took place between the complainant firm and the accused. The complainant firm has produced Ex.P.1 Board resolution and even in the said document it is stated that, said Sushil Kumar S. Kalro is personally aware of the transaction that took place between complainant firm and Accused. Therefore it cannot be said that, the PW.1 is not having proper authority to depose on behalf of the 25 C.C. NO.2793/2020 complainant firm or that the Managing Partner of the complainant firm by name Sri. Rajendra J Induja has no authority to issue Ex.P5 notice and to authorize PW1 to appear and depose on behalf of the complainant firm.
II. SERVICE OF NOTICE:
22. The accused has taken a defence that, notice issued by the complainant firm was not served upon him. The accused in his examination in chief at paragraph 4, deposed that, he is not working in the BOTTLE AND GLASS RESTO BAR and he was not residing in the said address at any point of time and deposed Ex.P.5 notice was not served upon him and the signature found a t Ex.P.6 document does not belong to him. It is to be noted that, in order to establish issuance and service of Ex.P.5 legal notice intimating the accused about dishonour of Ex.P.3 26 C.C. NO.2793/2020 cheque and also calling upon him to repay the amount covered under the Ex.P.3 cheque, the complainant firm has produced Ex.P.5 legal notice, Ex.P.5(a) and (b) postal receipts, Ex.P.6 and P.7 postal acknowledgements and has also produced Ex.P.11 and P.12 postal track consignment. It is to be noted that, the complainant firm has issued Ex.P.5 notice to two addresses and notably in the two addresses except mentioning BOTTLE AND GLASS RESTO BAR the other details of the address is one and the same.
23. That apart the accused has produced Ex.D.2 Aadhar Card to establish that he is residing in the address mentioned in the said document and not in the address shown by the complainant firm in the Ex.P.5 notice. At Ex.D.2 the address of the accused is shown as Venkataswamy layout, Shanimahatma 27 C.C. NO.2793/2020 temple, Devasandra, Bangalore North, Bangalore.
During cross examination, at para 7 DW.1 deposed ನಪ3 ಚಕಕಗ ಸಸಬಸಧಪಟಟ ಬಬಸಕಗ ನನಕ ನಡ 2 ರಲರಕವ ವಳಸವನಕ ನ ಮತ ತ ಕಕಟಟರಕತತತನ.. DW.1 has denied that he has given the very same address mentioned in the complaint to his bank. At paragraph 8 DW.1 disclosed his mobile number and deposed that he do not know the GST Number suggested by the complainant counsel to whom it belongs to and also deposed he do not know to whom RR.Ventures belongs to and denied that he and Manojgowda are partners of RR Ventures and also denied that he was running business in the name of BOTTLE AND GLASS RESTO BAR under the said RR ventures in the address shown in the complaint and also denied that necessary permission has been obtained from the competent authority and denied that the environment department had initiated action 28 C.C. NO.2793/2020 against the accused and that, the accused had given his own mobile number for the same.
24. At paragraph 10 DW.1 admitted that he is having FACE BOOK ACCOUNT and denied that he has registered his membership in the name of BOTTLE AND GLASS RESTO BAR and also denied Ex.P.5 notice was served upon him. It is to be noted that, except making suggestion to the DW.1 the complainant firm has not produced any documents to show that, accused and Manoj gowda are the partners of RR ventures and the accused was running business in the name of BOTTLE AND GLASS RESTO BAR under RR Ventures in the address shown in the complaint and that, the accused had obtained necessary permission from the competent authority and that the environment company had initiated action against the accused and also that the accused 29 C.C. NO.2793/2020 had registered and became member of Face Book by giving the name of BOTTLE AND GLASS RESTO BAR and the same remains only as suggestions. That apart, though the complainant has suggested to DW.1 that, the accused has given the address shown in the complaint to his bank pertaining to Ex.P.3 cheque, the complainant firm ought to have summon and examine the bank authorities of Ex.P.3 to establish that the accused had given the very same address mentioned in the complaint for opening the bank account.
25. Be that as it may, during cross examination, at paragraph 2 PW.1 admitted that the two addresses of the accused is shown in Ex.P.5 and admitted both addresses are one and the same. PW.1 deposed that the accused has not given any documents to show that, the address mentioned in the Ex.P.5 notice belongs to accused. PW.1 deposed that, accused orally 30 C.C. NO.2793/2020 told him that the address mentioned in the Ex.P.5 notice belongs to him and he has personally visited the office and got confirmed that the same belongs to the accused. That apart, PW.1 admitted that, he has no documents to show that, accused is the owner of BOTTLE AND GLASS RESTO BAR. At paragaraph 3 PW.1 admitted that the signature found in Ex.P.3 cheque and Ex.P.6 cheque are different.
26. It is to be noted that, during the course of arguments the learned counsel for the complainant brought to the notice of this court that the summons issued by the court was served upon the accused to the address shown in the complaint. It is to be noted that, on perusal of order sheet, dt:28/9/2021, the office of this court has made an endorsement that summons to accused is served personally and on the 31 C.C. NO.2793/2020 very same day advocate Sri.D.M. has filed vakalath for the accused. On perusal of the summons which finds place in the case records goes to show that, the police have made a shara stating that the summons has been served to the address of the accused shown in the case personally. At the back side of the summons signature is forthcoming and notably nothing has been deposed by accused in his examination in chief that, summons issued by the court was not served upon him. It is to be noted that, the accused has not examined the police authorities to establish that the summons was not served on him in the said address. Be that as it may though the accused claims that, he was not at all residing in the address shown in the complaint or that he was not working in the BOTTLE AND GLASS RESTO BAR, the accused has not examined any of the persons either connected to BOTTLE AND GLASS RESTO BAR or the persons 32 C.C. NO.2793/2020 residing in the said address to establish that either he was working in the said BAR or that he was not at all residing in the address shown in the complaint and Ex.P.5 notice and he has also not examined the postal authorities to establish that Ex.P5 notice was not served upon him as per Ex.P6 & 7 postal acknowledgements.
27. At this juncture, I find it relevant to quote the ruling decided between C.C. Alavi Haji V/s Palapetty Muhammed and another decided on 18/05/2007 in Appeal (Crl)767/2007 the Hon'ble Apex Court at para 14 has held that:
Sec.27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when a stating that the notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice Unserved, it is deemed to have been served or that the addressee is deemed have knowledge of the 33 C.C. NO.2793/2020 notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.
In the light of the principle laid down above, Ex.P.5 notice was served to the address mentioned at Ex.P.5 legal notice as per Ex.P6 & P7 Postal acknowledgements and as the accused has not placed any other credible evidence other than Ex.D.2, it cannot be said that Ex.P.5 notice was not served upon the accused and that he had no knowledge about the same and as the complainant firm has issued Ex.P5 notice to the address mentioned at Ex.P5 notice through RPAD, unless the accused has placed credible evidence that the address mentioned in the Ex.P5 notice does not belongs to him or that it is a wrong address, this court will have to draw presumption that Ex.P5 notice was served upon the accused.
(III) TRANSACTION:34 C.C. NO.2793/2020
28. It is to be noted that, as per complaint averments, it is the case of the complainant firm that, the accused had issued subject Ex.P.3 cheque towards discharge of liability. In the Ex.P5 notice issued by the complainant firm to the accused at paragraph 1 it is stated that, admitting the liability of Rs.45,00,000/- payable by the accused to the complainant firm and in discharge of part liability, the accused has issued Ex.P3 cheque for a sum of Rs.10,00,000/-. In the affidavit filed by PW.1 in lieu of sworn statement/examination-in-chief at paragraph 2, it is stated that, the accused had issued Ex.P.3 cheque towards partial liability and it is also mentioned that, accused sought time to repay the balance amount of Rs.35,00,000/- and notably, either in the Ex.P.5 notice, complaint or in the affidavit filed by PW.1 in lieu of sworn statement in lieu of examination in chief, the nature of transaction that 35 C.C. NO.2793/2020 took place between the complainant firm and the accused is not narrated and also it is not mentioned whether the complainant firm had paid the said amount to the accused either by way of cash or through cheque.
29. Be that as it may, as discussed the accused in his examination in chief has deposed that, he took part as a mediator with respect to the dispute between the complainant firm and his brother in connection with encroachments of lands and in the said transaction, the complainant firm told him orally that the complainant firm would pay Rs.45,00,000/- and deposed in the year 2018 the complainant firm paid him Rs.5,00,000/- through RTGS through his bank account and paid sum of Rs.40,00,000/- to the accused through cheque. It is worth to note that, as discussed in the Ex.P.5 legal notice the complainant 36 C.C. NO.2793/2020 firm has mentioned that the accused has admitted the liability of Rs.45,00,000/- to the complainant firm and the same corroborates with each other and the accused has admitted that he had received Rs.45,00,000/- from the complainant firm. That apart, the complainant firm has produced Ex.P2 Bank account statement to establish that it had paid sum of Rs.5,00,000/- to the accused on 07/12/2018 through RTGS and an amount of Rs.40,00,000/- on 13/12/2018. Therefore, the payment of Rs.45,00,000/- paid by the complainant firm to the accused stands established.
30. The accused /DW.1 in his examination in chief at paragraph 3, has also deposed that he resolved the dispute between his brother and the complainant firm and also deposed the 'Kalyana Mantapa" which was constructed by his brother and 37 C.C. NO.2793/2020 father by encroaching the lands belonging to the complainant firm was demolished and thereafter, the complainant firm constructed warehouse in the said property and has let out the same to PEPPER FRY company. DW.1 also deposed an agreement dt:
24/4/2019 was entered between his brother and the complainant firm in respect of the said dispute and he has produced the same and the same is marked as Ex.D1. DW.1 also deposed after resolving the dispute he had asked the complainant firm to return the cheque belonging to him and the complainant firm did not return the same and also deposed the complainant firm has not issued any notice to him seeking return of Rs.45,00,000/-.
31. During cross examination, at paragraph 1 DW.1 deposed that complainant is known to him since 2015 and deposed at Beemakkanahalli lands 38 C.C. NO.2793/2020 belonging to him and his brother is situated and deposed opposite to the said lands, the land belonging to the complainant firm is situated and because of which complainant is known to him. DW.1 also deposed 2015 ರಲ ಪರರರರದರವರಕ ನನನ ಸಹರದಸದ ಭತಮಕಕನ ಹಳಳರಲ ಜಮತನಕ ಖರತದಸರಕತತರ ಎಸದರ ಸರ. ಪರರರರದ ಸಸಸಸರ ಮಬನತಜಸಗರಪಟನರರ ಆದ ಹಸದಕಜರವರಕ ನನಗ ಪರಚರ ಇರಕತತರ. The said testimony of DW.1 and the suggestions put forth by the complainant to DW.1 makes it clear that, complainant firm and accused are known to each other and though the complainant firm suggested DW.1 that, he had helped the complainant firm for purchasing lands, the said aspect has not been stated either in the Ex.P.5 legal notice or in the complaint and it is not the case of the complainant firm that the complainant firm had paid sum of Rs.45,00,000/- to the accused towards the said transaction.
39 C.C. NO.2793/2020
32. It is to be noted that, though the accused has admitted the receipt of Rs.45,00,000/- from the complainant firm, the complainant firm has not suggested to DW.1 that why accused/DW.1 received the said amount from the complainant firm or that why the complainant firm paid the said amount to the accused and towards which transaction. It is worth to note that, the accused has produced Ex.D.1 document ie., Deed of declaration executed by Mr. Manjunath and three others and the complainant firm. On scrutiny of the same it reveals that, the land measuring 13 guntas belonging to the complainant firm was encroached by Manjunath and it is mentioned that the first party has cleared the encroachment. It is to be noted that, during cross- examination, at paragraph 2, DW.1 admitted that he is not party to the Ex.D.1 agreement and admitted 40 C.C. NO.2793/2020 there is no reference in the Ex.D.1 document with respect to that he acted as a mediator and resolved dispute between his brother and the complainant firm. At paragraph 3 DW.1 admitted that under Ex.D.1 document, his brother and family members received sum of Rs.1,40,00,000/- from the complainant firm. The said suggestion by the complainant firm to the accused and Ex.D.1 document makes it clear that the complainant firm is admitting that there was a dispute between the brother of the accused by name Manjunath and the complainant firm and notably payment of Rs.1,40,00,000/- made by the complainant firm to the brother of accused and his family members is not forthcoming in the Ex.D.1 document.
33. It is required to be noted that, in order to establish that there was a dispute between his brother 41 C.C. NO.2793/2020 and the complainant firm in respect of lands owned by his brother Manjunath and the complainant firm, the accused has also examined his brother Manjunath.M. as DW.2 and he in his examination in chief deposed that his father had encroached the lands of complainant firm and had constructed "Kalyana Mantapa" and in that regard, there was a dispute between himself and the complainant firm and his brother acted as a mediator to resolve the dispute and also deposed that, there was talks between himself and the complainant firm to demolish the Kalyana Mantapa and it was agreed by the complainant firm to pay Rs.1,40,00,000/- to him and accordingly, the complainant firm paid the same and he demolished the Kalyana Mantapa and Ex.D.1 agreement was entered between himself and the complainant firm and also deposed that, the complainant firm had told his brother orally that they 42 C.C. NO.2793/2020 would pay Rs.45,00,000/- if he resolves the dispute and deposed in the year 2018 the complainant firm has paid the same. DW2 has produced Ex.D3 to 11 photographs.
34. During cross examination at paragraph 1, DW.2 admitted that the complainant firm has paid sum of Rs.1,40,00,000/- to him. At paragraph 2 DW.2 deposed that his brother/accused told him that if he resolves the dispute between himself and the complainant firm, the complainant firm has told that they would pay Rs.45,00,000/-. DW.1 voluntarily deposed that, he and his brother had been to the complainant firm and in connection with making payment, the complainant firm obtained his and his brother signature on the documents and deposed he do not know, on which document they have signed and also deposed prior to resolving the dispute 43 C.C. NO.2793/2020 he had signed in the document and deposed it is at that time his brother had given cheque and also deposed one Murugesha working in the complainant firm had signed in the said document.
35. It is to be noted that the said aspect has not been deposed by DW.1 and notably no suggestion is put-forth by the complainant firm to DW.2 denying the same. At paragraph 3 DW.2 admitted that accused has not signed at Ex.D.1 and also admitted there is no mention in the Ex.D.1 that his brother/accused would resolve the dispute between himself and the complainant firm. At paragraph 4 the complainant firm has suggested to DW.2 ಪರರದ ಮತಕತ ಆರಕತಪ ನಡಕವ ಅನತಕ ವಬವಹರಗಳಕ ಇತಕತ ಎಸದರ ಸಕ ತನಗ ಗಕತತಲಲ ಎಸದಕ ನಕಡದರಕತತರ. ಪರರರರದರವರಗ ಜಮತನಕ ಕಕಡಸಕವ ಸಸಬಸಧವಗ ಪರರದರವರಸದ ಆರಕತಪ 45 ಲಕ ಪಡದರಕತತರ ಎಸದರ ಸಕ ತನಗ ಗಕತತಲಲ ಎಸದಕ ನಕಡದರಕತತರ. It is to be 44 C.C. NO.2793/2020 noted that the complainant firm has not made the said suggestion to DW.1 and notably, nothing is forth coming either in the Ex.P.5 notice or in the complaint as to the transactions and its nature that took place between the accused and complainant firm and also about making payment of Rs.45,00,000/- to the accused for playing role in assisting the complainant firm for purchase of lands. It is to be noted that, DW2 has produced Ex.D.3 to D.11 photos and the complainant firm has posed certain questions to DW.2 with respect to the existence of Kalyana Mantapa and the same is of no consequence as the complainant firm has suggested to DW.2 that Ex.D.3 to D.11 photographs does not pertain to the instant transaction and notably, the said suggestion has been denied by DW.2. That apart, the said suggestion made by the complainant firm to the DW.2 makes it clear that, the complainant firm had paid 45 C.C. NO.2793/2020 Rs.45,00,000/- to the accused to procure lands for complainant firm.
36. During cross examination at paragraph 1 PW.1 admitted that the complainant firm has established WAREHOUSE at various places in Bangalore. At paragraph 3 PW.1 deposed ಆರಕತಪತನಕಸದಗ ಪರರರರದ ಸಸಸಸರಕ ರವದತ ವತರ ಹಸರ ವಬವಹರದ ಬಗಗ ಸಸಬಸಧ ಹಕಸದರಕವದಲಲ. ಸಕ ಮಕಸದಕವರದಕ ಆರಕತಪತನಕ ಪರರದ ಸಸಸಸಗ ವತರ ಹಸರ ಸಸಪಸಲಕ ಜಗವನಕ ನ ದ ಆ ಕರಣ ಆರಕತಪತನಗ ಖರತದಸಲಕ ವಬವಸಸ ಮಡಕತತತನ ಎಸದಕ ಹತಳದಕ ಪರರದ ಸಸಸಸ ಟ 45 ಲಕ ಹಣವನಕ ಒಟಕ ನ RTGS ಮಕಖಸತರ ಕಕಟಟರಕತತತವಸದಕ ಎಸದಕ ನಕಡದರಕತತರ. At paragraph 4 PW.1 admitted there is no mention in the Ex.P.2 document about the purpose of paying an amount of Rs.45 Lakhs to the accused. It must be noted that, it is for the first time PW.1 has voluntarily deposed that, the accused had told the complainant firm that he would 46 C.C. NO.2793/2020 make necessary arrangement to procure lands for the complainant firm to establish ware house and the complainant firm paid sum of Rs.45 Lakhs to the accused. The said aspect has not been stated either in the Ex.P.5 legal notice, complaint and also in the affidavit filed by PW.1 in lieu of examination in chief. At paragraph 5 PW.1 admitted that no agreement has been entered between the complainant firm and accused in respect of procurement of lands by the accused to the complainant firm for establishing WAREHOUSE.
37. PW.1 in cross examination at paragraph 8 specifically admitted ನಪ5 ಮತಕತ ದಕರನಲ ರವ ಕರಣಕಕಗ ಆರಕತಪತನಗ 45 ಲಕ ಹಣ ಕಕಡಲಯತಕ ಎಸಬ ಬಗಗ ನಮಕದಕ ಇಲಲ ಎಸದರ ಸರ . PW.1 denied that, the complainant firm had paid Rs.45 Lakhs to the accused for resolving the dispute between the brother of the accused and 47 C.C. NO.2793/2020 complainant firm and when it is suggested that, the brother of the accused had encroached 1 acre land in the lands belonging to complainant and to vacate the same the complainant firm had paid Rs.1 crore, PW.1 deposed that he will have to verify records. At paragraph 9 PW.1 denied that, for vacating 1 acre of encroached land by the brother of the accused and till demolishing the Kalyana Mantap it was agreed that the accused will have to give Ex.P.3 cheque to complainant firm for a sum of Rs.10 Lakhs and also denied that after vacating the same, and also after demolishing the Kalyana Mantapa the complainant firm has not returned the cheque.
38. Be that as it may, DW.1 in his cross examination dt: 22/7/2022 at paragraph 1 deposed 2015 ರಲ ಪರರದರವರಕ ನನನ ಸಹರದಸದ ಬತಮಕಕನ ಹಳಳರಲ ಜಮತನಕ ಖರತದಸರಕತತರ ಎಸದರ ಸರ. The said suggestion 48 C.C. NO.2793/2020 made by the complainant firm to the accused/DW.1 and the answer elicited by the complainant firm from DW1 makes it clear that, accused had helped the complainant firm for procuring lands in Bheemakkanahlli in the year 2015 and notably, the said aspect has not been stated by the complainant firm either in the Ex.P.5 legal notice, complaint or in the affidavit filed by PW.1 in lieu of examination in chief. It is worth to note that, the complainant firm has suggested to DW.2 at paragraph 4 that there were several transactions between the complainant and accused and notably nothing has been narrated in the Ex.P.5 notice, complaint or in the affidavit filed by PW.1 in lieu of examination in chief about the transactions that has taken place between the complainant firm and accused.
49 C.C. NO.2793/2020
39. Be that as it may, though the accused/DW.1 has taken defence that, he acted as a mediator to resolve the dispute between his brother and the complainant firm and in connection with the same, he received sum of Rs.45,00,000/- from the complainant firm, as admitted by DW1 / accused, he is not a party to the Ex.D.1 document or he has not signed as a witness and also there is no recital in the Ex.D.1 document about he acted as a mediator to resolve the dispute between his brother and complainant firm. That apart, DW.1 has also admitted that he has not given any other cheque other than Ex.P.3 cheque and that there was no agreement between himself and the complainant firm in respect of resolving dispute between his brother and complainant firm and he has admitted that on the date of receiving Rs.45,00,000/- he has not executed any other documents for security. DW.1 deposed that 50 C.C. NO.2793/2020 there are documents to show that there was Kalyana Mantapa in the lands belonging to his brother and that the same was demolished in the month of March- April 2019 and he has specifically admitted that, ನಪ 3 ಚಕಕನಕ ನ ನನಕ ಪರರದಗ ಆ ಕಲ ಬ ಣ ಮಸಟಪವನಕ ನ ಒಡದಕ ಹಕಕವ ಬಗಗ ಮತಕತ ನನನ ಅಣಣ ಮತಕತ ಪರರದ ನಡಕವ ವವದ ಬಗಹರಸದ ಬಗಗ ದಖಲಗಳಕ ಇಲಲ.
40. It is required to be noted that, on careful scrutiny of averments made in the Ex.P.5 notice and complaint, it depicts that, there is no averment made by the complainant firm or that it is not the case of the complainant firm that, it had engaged the service of the accused to procure lands for establishing warehouse and in that regard, the complainant firm had paid sum of Rs.45 Lakhs and that, the accused failed to do the same and because of which when they requested the accused to repay the amount and in 51 C.C. NO.2793/2020 discharge of the said liability the accused issued the subject cheque. As discussed in the Ex.P.5 notice, complaint and in the affidavit filed in lieu of Examination in chief it is only stated that, the accused admitted and acknowledged his partial liability and issued the subject cheque and as discussed the purpose of making the said payment to the accused is not forthcoming in the Ex.P.5 notice, complaint and in the affidavit filed in lieu of examination in chief.
41. That apart, during cross examination of DW.1 at paragraph 5 the complainant firm has suggested to ದ ಅದರ DW.1 that ಪರರದಯಸದ ನನಕ 45 ಲಕ ಹಣ ಪಡದದಕ ಭಗಶಶ ಹಣದ ತತರಕವಳಗಗ ನಪ3 ಚಕಕನಕ ನ ಪರರದಗ ಆಗಸಟ 2019 ರಲ ಕಕಟಟರಕತತತನ ಎಸದರ ಸರರಲಲ. Though PW.1 in his cross examination at paragraph 3 deposed that, the complainant firm paid Rs.45 lakhs to the accused 52 C.C. NO.2793/2020 for the reason that the accused had told that he would procure lands for the complainant firm to establish warehouse and though DW.1 in his cross examination at paragraph 1 admitted that, he has helped the complainant firm in the year 2015 to purchase lands at Beemakkanahalli, and also though the complainant firm suggested DW.2 that there were many transactions between the complainant firm and the accused the same has not been suggested to DW.1 and also it is not specifically suggested by complainant firm to DW.1 that the accused /DW.1 received Rs.45 Lakhs from the complainant firm by saying that he would help in procuring of lands to the complainant firm for establishing warehouse. At this juncture, I find it relevant to quote the ruling reported in 2013 (2) Civil Court Cases 107 (SC) decided between Vijay V/s Lakshman and Another, the Hon'ble Apex Court held that:
53 C.C. NO.2793/2020
"cheque issued towards repayment of loan, if no document or other material brought on record to prove the loan transaction or the date of demand of loan or the date of giving loan is not stated in the complaint, if it is blissfully silent about these aspects, it makes to suspect the entire story of the complainant as false".
42. That part, in the ruling reported in 2014 (1) Civil Court cases 001 SC decided between John K Abraham V/s Simon C Abraham and another, the Hon'ble Apex Court held that:
"complainant not sure about the date of advancing loan and he is also not sure who wrote the contents of the cheque and he is not aware when exactly and where exactly the transaction took place, all these aspects are serious lacuna which strike at the root of the case of the complainant".
In the ruling decided between Yeshwanth Kumar V/s Shantha Kumar decided b y the Hon'ble High Court of Karnataka on 07/08/2019 in Crl.Appeal No. 939/2010, it is held that:
"if there is no clear terms of date of lending loan to the accused and in the absence of the same, the accused issued cheque towards discharge of the legally recoverable debt cannot be accepted".54 C.C. NO.2793/2020
In the light of the principle laid down above, though the accused is not a party to the Ex.D.1 document and also though there is no reference in the Ex.D.1 document that accused took part as a mediator to resolve the dispute between his brother and complainant firm, Ex.D.1 manifest that, there was a dispute between the complainant and brother of accused. That apart, as admitted by PW.1 for having lent sum of Rs.45 Lakhs to the accused except Ex.P.2 document there is no other documents and also as admitted by PW.1 there is no mention in the Ex.P.5 notice and in the complaint for what purpose the complainant firm had paid sum of Rs.45 Lakhs to the accused and there is no averment made in the Ex.P.5 notice and complaint and also no suggestion is made by the complainant firm to accused /DW1 about the purpose of giving amount of Rs.45 Lakhs and the stand taken by the accused that, he took 55 C.C. NO.2793/2020 part as a mediator in respect of the dispute between the brother of the accused and complainant firm which is also corroborated by Dw.2 makes it clear that, there was no either loan transaction or any other transaction between the complainant and accused with respect to the procurement of land and payment of Rs.45 Lakhs for the same and thereby the defence set up by the accused becomes more probable.
43. That apart, the material placed on record by the complainant and accused, it goes to show that the accused has raised a bonafied dispute with regard to the liability and therefore, the dishonour of cheque under such circumstances, does not attract prosecution U/sec. 138 of the Negotiable Instruments Act. Therefore, taking note of the entire materials placed on record by the accused it could be concluded that the accused has raised a probable defence that 56 C.C. NO.2793/2020 the subject cheque was not issued to the complainant firm towards discharge of legally enforceable debt and thereby the accused has rebutted the presumption as contemplated U/sec. 139 of the Negotiable Instruments Act by placing acceptable evidence. Accordingly, I answer Point No.1 & 2 in the Negative.
44. Point No.3 :- In view of my findings to the Points No.1 and 2, I proceed to pass the following:-
O RDE R In exercise of power conferred U/sec. 255(1) of Cr.PC, the accused is acquitted for the offence punishable U/s.138 of N.I. Act.
Bail bonds of accused shall be in force for a period of Six months.
(Dictated to the stenographer, directly on computer, corrected and then signed and pronounced in the open court by me on this the 24th day of January, 2023).
(H. Satish) XXVII A.C.M.M., Bengaluru.57 C.C. NO.2793/2020
ANNEXURE Witnesses examined on behalf of the complainant:
PW1 : Mr.SUSHILKUMAR.S KALRO
Documents marked on behalf of the
complainant
Ex.P.1 : Board resolution dt:
23/12/2019,
Ex.P.2 : Statement of Accounts,
Ex.P3 : Cheque dated 16/08/2019
Ex.P.3(a) : signature of the accused
Ex.P.4 : Bank endorsement
dt:22/10/2019,
Ex.P.5 : Office copy of Legal notice
dated 19/11/2019,
Ex.P-5(a) &5(b) : Postal receipts
Ex.P-6 and P-7 : Postal acknowledgements
Ex.P-8 : Certified copy of the
Partnership Deed dated
12/04/2011,
Ex.P-9 : Certified copy of the Deed of
Retirement dt: 01/11/2012,
Ex.P.10 : Certified copy of the
Acknowledgement of
Registration of Firms,
58 C.C. NO.2793/2020
Ex.P.11 & P.12 : Postal track Consignments,
Ex.P.13 : Certificate U/s. 65B (4) of
Indian Evidence Act.
Witnesses examined on behalf of the accused:
DW.1 : B.M.RAJGOPAL DW.2 : MANJUNATH.M
Documents marked on behalf of the accused:
Ex.D.1 : Certified copy of Deed of Declaration Ex.D.2 : Aadhar card Ex.D.3 to 11 : Photos Ex.D.12 : Pen drive Ex.D.13 : Certificate U/s. 65B of Evidence Act.
Ex.D.14` : Receipt dt: 12/7/2022
(H. Satish)
XXVII A.C.M.M., Bengaluru.
59 C.C. NO.2793/2020
24/01/2023
Comp: Sri. Adv.,
Accd: Sri. Adv.,
For Judgment.
(Order typed vide separate sheet)
O RD ER
In exercise of power conferred U/sec. 255(1) of Cr.PC, the accused is acquitted for the offence punishable U/s.138 of N.I. Act. Bail bonds of accused shall be in force for a period of Six months.
XXVII A.C.M.M., Bengaluru.