Bangalore District Court
Having Regd vs Filed Written Arguments on 3 February, 2022
BEFORE THE COURT OF XXIV ADDITIONAL SMALL CAUSES JUDGE AND
THE MOTOR ACCIDENT CLAIMS TRIBUNAL & A.C.M.M. (SCCH26) AT
BENGALURU
DATED THIS THE 3rd DAY OF FEBRUARY 2022
PRESENT: SRI.R.MAHESHA. B.A.,L, LLB.,
XXIV ADDL. SCJ &
ACMM & MEMBER MACT
BENGALURU.
1. Sl. No. of the Case CC.No.5806 of 2019
2. The date of 15102019
2. commencement of
evidence
3. The date of closing 16102021
evidence
4. Name of the M/s Shankara Building Products Ltd.,
Complainant Having regd., office No.G2, Farah Winsford
No.133, Infantry road,
Bangalore560 001
Rep. by its Manager & PA holder
Mr.N.Srinivasa Murthy
S/o Mr.A.R.Narayana
Aged about 42 years
(By Sri.B.K.M.Advocate)
5. Name of the Accused M/S SVR Steel Suppliers
Plot No.283, BN Reddy nagar
IDA Cherlapally
Secunderabad508001
Rep. by its proprietor and authorized signatory
Mr.Laxman Kumar
Residing at
Mr.Laxman Kumar
R/at No.105398
Budhanagar, Tukaram gate
Secunderabad500026.
(By Sri.S.M.Advocate)
6. The offence U/s.138 of the Negotiable Instruments Act
complained of
7. Opinion of the judge Accused found not guilty
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:
That accused had purchased the materials as per his requirements and agreed to pay the delay charges at 24% p.a. in the event of fail to pay the amount as agreed. That the accused is due of Rs.52,28,666/ towards the supplies made and towards discharge of partial legal liability the accused issued the cheques bearing No.100717, 100718 dt.2072018 for Rs.10 lakhs each drawn on The Agrasen coop Urban Bank Ltd., MG road, Secundrabad in favour of the complainant. That the complainant presented the said cheques for encashment, but the said cheques dishonoured and returned with an endorsement Insufficient Fund. That the complainant issued legal notice dt.5 82019 to the accused through RPAD, but the accused did not repaid the due amount to the complainant. 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, N.Srinivasa Murthy -ManagerAccounts of the complainant company himself examined as PW1 and got marked 9 documents as ExP1 to 11.
5. Heard oral arguments from complainant counsel. The counsel for accused filed written arguments.
6. Upon perusal of the material placed on record, the following points arise for my consideration: POINTS
1. Whether the complainant proves that the accused had issued cheques in question in discharge of the legally recoverable debt as contended by him?
2. Whether complainant proves that the accused has committed the offence punishable under Sec.138 of NI Act?
3. Whether the complainant is entitled for the relief as prayed in the complaint?
4. What order?
7. My answer to the above points is as follows : Point No.1 to 3 :In the Negative Point No.4 : As per final order for the following : REASONS
8. POINT NO.1 to 3 : Since these points are interlinked and to avoid repetition they are taken together for common discussion. Before peeping the disputed facts it is appropriate to refer the undisputed facts, 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 the complainant company is a limited company and registered under the provisions of companies Act. The accused is a proprietor and authorized signatory doing business in the name and style of M/s S.V.R.Steel suppliers. The complainant company and accused proprietorship having business transactions since 2015 to 2018. The complainant company having many branches in all over India and complainant company having bank A/cs in many states/cities. The disputed cheque belongs to accused proprietorship and bear signature was belongs to proprietor i.e., accused Mr.Laxman Kumar. The said cheque got dishonoured for the reason of Insufficient Funds. The complainant company had issued legal notice, the legal notice addressed to accused proprietorship returned as Unclaimed on 20082019 and notice issued addressing the name of proprietor returned as Door locked on 1008 2019, 13082019, but accused has not replied at appropriate time.
9. With above admitted facts, now the facts in issue are analyzed, as already stated the accused has denied the entire case of the complainant company as to commission of the offence punishable under section 138 of NI Act. While recording their plea for the said offence and also accused has denied the incriminating circumstance found in the evidence of the complainant. At the time of recording of his statement under section 313 of Cr.P.C., The accused has mainly denied the claim of complainant company, on going through the crossexamination of PW1, it is clear that in addition to the total denial of the case of the complainant company, the accused has specifically contended that he well aware about complainant company officials and he doing transactions with them. The accused was running steel business in the name and style of M/s S.V.R.Steel suppliers and he has approached the complainant in the year 2015 to purchase the materials from with the complainant company and gave a proposal to the company that he has purchased steel material on the basis of credit and the same would be clear within a month. At that point of time, the complainant has demanded three blank signed cheques for the purpose of security. Theretofore the accused found hope faithfully on the complainant he signed on the alleged cheques and issued the same to the complainant company for the purpose of the security only. The accused was a good and regular customer and has purchased the materials as per his requirement. Since then, he has purchased more than a sum of Rs.3 crore until 2018. In the year of 2018, he closed his business M/s S.V.R.Steel suppliers, due to some personal problems and before he closed his business he made it clear all his balance to complainant company without any due. At that time, he requested with the complainant to return the alleged cheques to him, at that point of time, they said that they will return the same within few weeks because the said cheques is in the head office and there were some procedure to return the same. The alleged cheques are very old cheques and which were given to the complainant by accused only for security purpose. The allegations of complaint are totally false and baseless which is far with from truth. He was paid all the balance amount to the complainant in the year 2018 before he was closing his business. The present complaint filed against this accused only an intention to cheat and wrongful gain from accused. Therefore, on the above objections the accused seeking the present complaint is not maintainable and liable to be dismissed in limine.
10. It is needless to say that the proceeding under section 138 of NI Act is an exception to the general principle that the accused is presumed to be innocent until the guilty is proved beyond all reasonable doubt. In the proceedings initiated under section 138 of NI Act, proof beyond all reasonable doubt is subjected to presumption envisaged under section 139 of NI Act. Once the requirement of Sec.138 of NI Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged under Sec.139 of NI Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of NI Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa V/s Mohan reported in AIR 2010 SC (1898) by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishnajanardhana Bhat V/s Dattareya G. Hegde reported in AIR 2008 SC (1325) it was held that "existence of legally recoverable debt or liability is a matter of presumption under section 139 of NI Act". The Hon'ble Apex Court disapproved the principle laid down in Krishnajanardhana Bhat case that "initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshmi Naryana V/s 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 the Hon'ble Apex Court in Crl. Appeal No.803/2018 Krishna Rao V/s Shankare Gowda reported in 2018(7) SCJ 300 reiterated the above principle further as provided under Sec.118 it is to be presumed that the cheque in question was issued for consideration on the date found therein.
11. In the light of the rival contention of the parties at the outset it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of NI Act as contended. In order to prove the case of the complainant, One Srinivasa MurthyManagerAccounts and PA holder represented by complainant company has examined as PW1 and he reiterated the complaint averments in his examinationinchief by way of affidavit and got documents marked as ExP1 to 11. On the other hand, The accused did not opt to lead any evidence. In addition to that the complainant has produced ExP1-board of resolution dt.1962017, ExP2power of attorney dt.117 2017, ExP3 Cheque dt.20072019 for a sum of Rs.10 lakhs, ExP4bank endorsement dt.282019, ExP5cheque dt.2072019 for sum of Rs.10 lakhs. ExP6bank endorsement dt.282019, ExP7legal notice dt.582019, ExP8 postal receipt, ExP9 and 10 unopened, unserved RPAD covers, ExP11 statement maintained by complainant company pertaining to accused proprietorship.
12. In the light of rival contention of the parties, at the outset it is to be determined as to whether the complainant had complied with all the requirements of Section 138 of NI Act as contended. In order to prove the case, the complainant company Manager Accounts and PA holder reiterated the complaint averments in his sworn statement by way of affidavit which itself is treated as examination in chief in view of the decision of Hon'ble Apex court reported in 2014(A) SCC 590 Indian Bank Association and others Vs Union of India and others (WP civil No.18/2013). On perusal of these documents, it is clear that the complainant had presented the cheques for encashment within its validity, got issued statutory notice in time and presented the complaint within the prescribed period. So it is clear that, the complainant company complied statutory requirements of presenting cheques, issuing notice and presenting complaint well in time.
13. On conjoint reading of the entire oral and documentary evidence, they remains no doubt that the complainant company had complied with all the requirements of the Sec.138 of NI Act. This being the fact, as discussed earlier in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available under section 138 of NI Act is required to be drawn on some presume that the accused had issued the cheques as per Ex.P3 and 5 towards discharge of legally recoverable debt. It is also presumed that the cheques were issued for consideration on the date as mentioned therein.
14. It is well settled principle of law through catena of decisions that though the statutory presumptions available under Sec.118 and 139 of NI Act are mandatory in nature, they are the rebuttal one. It is needless to say that when the complainant proves the requirement of Sec.138 of NI 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 on the shoulder of the complainant. It is also settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also set in rest 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 Acts elicited in the crossexamination 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 decisions of the Hon'ble Apex Court reported in 2006(3) SCC (CRL) 30 Tamilnadu Marcantile Bank Limited V/s M/s Subbaiah Gas Agency and others. ILR 2009 (2) 1633 Kumar Exports V/s Sharma Carpets, AIR 2008 SCC 1325 Krishnajanardhana V/s Dattareya G. Hegde, 2013 SCR (SAR) CRI 373 Vijay V/s Lakshman & another and AIR 2010 SC 1898 Rangappa V/s Mohan and Crl. Appeal No.230 & 231/2019 Bir Singh V/s Mukesh Kumar. Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
15. The counsel for accused conducted detailed cross examination of PW1, during course of cross examination, PW1 was deposed that the accused well known to complainant company since 2015, he done business transaction with complainant company approximate sum of Rs.3 crore till 2018. The complainant company registered under companies Act and complainant company adopted byelaws while registering company. The complainant company lodged several complaints against defaulters in various courts. The complainant company maintained accounts extracts and they carried audit in every year. He did not produced before this court relevant company ledger accounts and company audited reports. He denied the suggestion of accused, they took security cheques from their customers before commencing business with complainant company. Further PW1 contending during course of cross examination that they maintained relevant ledgers in their company, the accused due towards complainant company and it reflects in their ledger account statement. Further he contended that before sending statutory notice to accused, they sent notice from complainant company to accused and he denied the suggestions of accused. The alleged cheques in question are very old and there is no signature of accused on documents produced by complainant and he contended the accused signature found on cheques and he undertake before this court he would produce statement of account and how much due accused had towards complainant company and income tax details of complainant company and how much amount paid by accused in the next date of hearing before this court. Further PW1 admitted during course of cross examination they normally supplied materials to their customers through transport, he clearly admitted there is no acknowledgment from accused for receiving materials from complainant company. Further he undertake before this court while denying the suggestion of accused regarding there is no receipt from complainant company for supplying materials to accused and he undertake for production of the said receipts and he denied other formal suggestions putforth by accused.
16. In view of the defence taken by the accused as against the claim of the complainant company, now the evidence available on behalf of the accused is analyzed, in support of defence of accused in addition to the cross examination of complainant side, Admittedly ExP3 and 5 cheques dt207 2019, cheques were presented for encashment on 282019, legal notice issued on 582019. On perusal of ExP11, it is forthcoming that the accused having due of Rs.52,28,666/ as on 12082016. The legal notice sent by complainant company returned with postal shara as Unclaimed on 2008 2019. The accused did not replied the notice issued by complainant at appropriate time. During course of trial, the accused mainly contended before this court that the alleged cheques in question were issued to the possession of complainant company in the year 2015 for security purpose, he done business with complainant company from 2015 to till 2018. He cleared entire outstanding due amount towards complainant company and he closed his business in the year 2018. The complainant company misused his blank signed cheques and created statement and filed false case against this case for the purpose of illegal gain. Admittedly accused did not placed any materials to substantiate his defence before this court. It is settled principle of law it is not mandatory to accused to adduce evidence or produce documents, he can make use of complainant documents, the accused conducted detailed cross examination of PW1. During course of cross examination, he questioned about receipts/invoices and accused mainly denied he did not received any materials from complainant company as alleged in the complaint and there is no documentary proof for receiving materials from complainant company. Admittedly the complainant did not produced receipt/invoices for show before this court, they supplied materials worth of Rs.20 lakhs in this case. The complainant company mainly relied ExP11 i.e., statement of a/c which is maintained by complainant company. During course of cross examination, accused suggested ExP11 can be chance of creating in their computer in the office of complainant company. Even this suggestion denied by PW1 he did not produced auditing statement, IT return document, daily ledger a/c maintained by complainant company and other related documents of complainant company as undertook by PW1 before this court. As per the averments of complaint, the accused has purchased the materials as per the requirements. The accused agreed to pay the delay charges at 24% p.a. in the event of fail to pay the amount as agreed. The accused has due and owe a sum of Rs.52,28,666/ for the supplies made and towards discharge of partial legal liability has issued cheques. To substantiate this fact, there is no materials from complainant company. The accused himself admitted during trial, he had business transaction with complainant company since 2015 till 2018 and he done total turnover of purchase materials a sum of Rs.3 crore and he is good customer and he doing business on credit basis. It is burden on complainant to prove his complaint averments with documentary proof. Section 101 of Indian Evidence Act clearly stated who ever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. An obligation to prove the case setup by the party who comes first to court i.e., whatsoever comes to court for a remedy has to prove his case. In otherwords " he who asserts must prove" the standard of proof in civil cases is preponderance of probability, while in the criminal cases the standard of proof is beyond the reasonable doubts. If no evidence at all is adduced by either side, the person on whom the burden of proof lies would fail. One who asserts a particular fact is in existence, then he has to prove the said fact unless and until the law says that the burden lies unanymore else. In the instant case, the complainant company by using negotiable instrument and claiming huge amount of Rs.20 lakhs from accused on the basis of ExP11. ExP11 is a computerized account statement which is maintained by complainant company, there would be chance of addition and deletion, figures, it is exclusively control by the complainant company. ExP11, nothing has been produced by complainant company to corroborate the claim of complainant. There is no documentary proof from complainant company they supplied this much of materials on so and so dates and accused received the said materials which had been supplied by complainant company on credit basis and the complainant company raised invoices for which and company paid necessary taxes to government and materials supplied through transport vehicles etc., details were not placed by complainant company before this court. During course of cross examination, the accused posed material question to PW1 he admitted the complainant company maintained necessary ledger accounts and company regularly paying income tax and other related taxes to competent authority. Further more there is a documents with complainant to show materials supplied to accused like receipts or invoices and other related documents. The PW1 undertook before this court he would produce all documents for kind perusal of this court, but he did not do so. Section 114 of Indian Evidence Act conferred this court for non production of documents courts have discretionary power to draw adverse inference against the failing party. This fact upheld by Hon'ble Supreme Court of India in case reported in State represented by Inspector of Police, Vishakapattanam Vs Surya Sankaram karri 2006 AIR SCW 4576 and in case between Ramdas Vs State of Maharastra 1976(3) SCC wherein Apex court reiterates the proposition of law that " in the event of nonproduction of document, adverse inference may be drawn against the failing party". Further wherein Apex court in case Inspector of police Vishakapattanam Vs Surya Sankaram karri specifically held that " that a document being in possession of public functionary, who is under a statutory obligation to produce the same before court of law, fails and/or neglect to produce the same an adverse inference may be drawn against him. The law gives exclusive discretion to the court to presume the existence of any fact which things likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vice versa the facts of the particular case. The discretion conferred by Section 114 of Indian Evidence Act is an inference of a certain fact drawn from other proved facts".
17. On careful analize entire evidence and document, it is clear that the complainant has not produced any document to show or substantiate the very complaint averments as on the date of issuance of cheques or prior to issuance of cheques, the complainant company and accused having business transactions and complainant company had been supplied materials of Rs.20 lakhs for such, complainant company raised invoices and the said amount was due from accused and complainant company charged over due interest on delay payment. Absolutely there is no materials. The complainant utterly failed in proving outstanding due from accused towards complainant company with documentary proof. Admittedly the signed blank disputed cheques took from accused for security purpose in the year 2015 at the time/before commencing business transaction with complainant company. During course of cross examination, PW1 clearly admitted before this court that ನವ ಗಗಹಕರರರದಗ ವವವಹರ ಮಡಬಬಕದರ ಕರಪನಯಯ ಅಕರಟಟ ಗಳನಯ ನ ನವರಹಣ ಮಡಬಬಕಯ ಎರದರ ಸರ . ಪಗತ ವಷರರರರಮಮ ಕರಪನಯಲ ಆಡಟ ಮಡಸಯತತಬವ. ಅಕರಟಟ ಪಸತಕವನಯ ಟ ಲ ಎರದರ ಸರ . ನಮ ನ ಈ ನವಯಲಯರರ ರರಟಟಲ ಮ ಕರಪನಯ ಜರತ ಆರರಬಪ ವವವಹರ ಮಡರಯವ ಪತರ ವವರಗಳನಯ ನ ಈ ನವಯಲಯರರ ರರಡಲಯ ತರರದರ ಇಲಲ. ನವ ಯವದಬ ಮಬಟಬರಯಲಟ ಗಳನಯ ನ ಗಗಹಕರಗ ಕಳಯಹರರಡಯವದಯ transport ಮಯಖರತರ ಎರದರ ಸರ. ಯವ ವವಕತಗಳಯ ನ receive ಮಡರರರಡದರ ಎರದಯ ತರಬರಸಯವ ದಖಲಗಳನಯ ಮಟರಯಲಟ ಗಳನಯ ನ ಇಲಯವರಗರ ನವಯಲಯರರ ಹಜರಯಪಡಸಲಲ ಎರದರ ಸರ . ಸಕ ಹಜರಯಪಡಸಯತತಬನರದಯ ಹಬಳಯತತರ . ಆರರಬಪಗ ಸರಬರದಸದ ಬಲಯ ಲ ಗಳಯ ನಮಮ ಬಳ ಇಲಲ ಎರದರ ಸರಯಲಲ. ನಮಮ ಕರಪನ ಪ ಗತವಷರ ಆದಯ ತರಗ ಪವತ ಮಡಯತತದ.
ಪಗತವಷರ ಆದಯ ತರಗ ಪವತ ಮಡಯವಗ ಯಯರರಗ ಎಷಯ ಟ ಬಕ ಕರಪನಗ ಬರಬಬಕಯ ಎರದಯ ತರಬರಸಬಬಕಯ ಎರದರ ಸಕ ಇರಬಹಯದಯ ಎರದಯ ಹಬಳಯತತರ. ಆದಯ ನ ನವಯಲಯರರ ರರಟಟಲಲ ಎರದರ ಸರ . ಅಗತವ ಇದದರ ತರಗಗ ಸರಬರದಸದ ದಖಲಗಳನಯ ರರಡಯತತಬನ ಎರದಯ ಹಬಳಯತತರ. ನನಯ ಮಬಲ ಹಬಳರಯವ ದಖಲತಗಳನಯ ನ ನವಯಲಯರರ ರರಡಲಯ ತರರದರ ಇಲಲ. ನನಯ ನವಯಲಯರರ ರರಡಯತತಬನ ಎರದಯ ಹಬಳಯತತರಯವ ದಖಲತಗಳಯ ನಮಮ ಬಳ ಇಲಲ ಎರದರ ಸರಯಲಲ.
18. So the complainant himself admitted before this court he would produce relevant documents to substantiate his complaint averments to prove his claim against accused. He did not produced any documents as admitted by PW1 during course of cross examination. So from this conduct of PW1, it can presume that he had no documents with his possession to show the accused having get materials on credit basis and accused due of Rs.52,28,666/ for partial discharge of above outstanding due he issued the cheques in question in favour of complainant company. Being complainant company registered company under companies Act, they maintained relevant ledger extracts, individual customers running a/cs, each and every materials supplied to its customers, they raised proper invoices or receipts, they regularly paying relevant taxes to competent authorities and other relevant details documents are not produced by complainant company. So non production of above said relevant documents, this court came to conclusion that the version of complainant was doubtful and failed to establish the averments of complainant as pleaded or putup by the complainant. It is primary burden on complainant to prove or establish fact with oral and documentary evidence, the accused is liable for Rs.20 lakhs and to discharge the same, cheques in question was issued. The complainant company has to establish the guilt of accused beyond reasonable doubt. Absolutely the complainant company failed to establish the accused is liable to pay Rs.20 lakhs as mentioned in ExP3 and
5. The complainant company has utterly failed to establish ingredients of Section 138 of NI Act and also failed to prove the guilt of accused beyond reasonable doubt. The accused is through oral and documentary evidence successful in rebutting presumption U/s 139 of NI Act which favour of the complainant company. Considering all these aspects of this case and on perusal of evidence, lead on behalf of complainant, it does not depicts that accused is liable to pay Rs.20 lakhs to the complainant. The documents produced by the complainant does not disclose there existence of legally enforceable debt, which is prerequisite condition for prosecuting a case U/s 138 of NI Act. Presumption U/s 139 and 118 A of NI Act cannot be extended to presume that there exist legally enforceable debt. More, so presumption they themselves are not evidence. Hence viewing from any angle, complainant company has failed to establish existence of legally recoverable debt. It is also trite that mere issuance of cheque without corresponding legally recoverable debt is not an offence. In the instant case also complainant company has not established the existence of legally recoverable debt. Under these circumstances, the imperative conclusion is that the accused has not committed an offence punishable U/s 138 of NI Act. This will entails in acquittal of the accused.
19. Therefore, on going through the entire evidence and records, it clearly appear that the complainant company has suppressed the real fact and come up with some facts to suit his claim on the basis of Ex.P.3 and 5. On the basis of evidence in cross examination of the complainant as PW1, the accused in the case on hand as successfully rebutted the presumption raised in favour of the complainant u/s 138 of NI Act. Even if the cheques in question i.e. Ex.P.3 and 5 were returned uncashed there is absolutely no case against the accused for the offence punishable u/s 138 of NI Act. If the totality of the evidence on record is considered, doubt arises regarding the case of the complainant. Hence, the complainant has failed to prove beyond reasonable doubt that the accused has committed any offence punishable u/s 138 of NI act. The case of the complainant creates serious doubts in the mind of court. The light of existing evidence, this court is of the considered view that the defence of the accused cannot be totally ruled out. Therefore, the case of complainant is totally surrounded with heavy cloud and creates serious doubt. As discussed in detail, when the evidence placed before this court leads to disbelieve the case of the complainant, then the presumption stands rebutted. Thus, considering all these aspects, this court is of the considered view that the complainant company has failed to prove points No.1 to 3 in his favour as contended. It is needless to say that when the complainant failed to prove point no.1 to 3 the complainant cannot be granted with any relief as sought for in this case. Hence, point No.1 to 3 are required to be answered in Negative and answered accordingly.
20. Point No.4: For the reasons discussed in connection with in point No.1 to 3 this court proceed to pass following : : O R D E R : By Acting U/s 255(1) of Cr.P.C the accused is hereby acquitted for the offence punishable U/s 138 of NI 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 3rd February 2022) (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW1: N.Srinivasa Murthy DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P1: Board resolution
Ex.P2 : Certified copy of power of attorney
ExP3, 5 : Cheques
Ex.P3(a) & 5(a) : Signatures
ExP6 : Bank endorsement
ExP7 : Legal notice
ExP8 : Postal receipts
ExP9 & 10 : Two Unserved postal return covers
ExP11 : Ledger account
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.
Dt 14122021
Judgment pronounced in the Open Court vide separate order:
ORDER BEFORE THE COURT OF XXIV ADDITIONAL SMALL CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS TRIBUNAL & A.C.M.M. (SCCH26) AT BENGALURU DATED THIS THE 3rd DAY OF FEBRUARY 2022 PRESENT: SRI.R.MAHESHA. B.A.,L, LLB., XXIV ADDL. SCJ & ACMM & MEMBER MACT BENGALURU.
1. Sl. No. of the Case CC.No.5807 of 2019
2. The date of 15102019
2. commencement of evidence
3. The date of closing 16102021 evidence
4. Name of the M/s Shankara Building Products Ltd., Complainant Having regd., office No.G2, Farah Winsford No.133, Infantry road, Bangalore560 001 Rep. by its Manager & PA holder Mr.N.Srinivasa Murthy S/o Mr.A.R.Narayana Aged about 42 years (By Sri.B.K.M.Advocate)
5. Name of the Accused M/S SVR Steel Suppliers Plot No.283, BN Reddy nagar IDA Cherlapally Secunderabad508001 Rep. by its proprietor and authorized signatory Mr.Laxman Kumar Residing at 25 C.C.No.5806 of 2019 SCCH-26 Mr.Laxman Kumar R/at No.105398 Budhanagar, Tukaram gate Secunderabad500026.
(By Sri.S.M.Advocate)
6. The offence U/s.138 of the Negotiable Instruments Act complained of
7. Opinion of the judge Accused found guilty 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:
That accused had purchased the materials as per his requirements and agreed to pay the delay charges at 24% p.a. in the event of fail to pay the amount as agreed. That the accused is due of Rs.52,28,666/ towards the supplies made and towards discharge of partial legal liability the accused issued the cheques bearing 26 C.C.No.5806 of 2019 SCCH-26 No.100714, 100715 dt.2072018 for Rs.10 lakhs each drawn on The Agrasen coop Urban Bank Ltd., MG road, Secunderabad in favour of the complainant. That the complainant presented the said cheques for encashment, but the said cheques dishonoured and returned with an endorsement Insufficient Fund. That the complainant issued legal notice dt.582019 to the accused through RPAD, but the accused did not repaid the due amount to the complainant. 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, N.Srinivasa Murthy -Manager Accounts of the complainant company himself examined as PW1 and got marked 11 documents as ExP1 to 11.
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5. Heard oral arguments from complainant counsel. The counsel for accused filed written arguments.
6. Upon perusal of the material placed on record, the following points arise for my consideration: POINTS
1. Whether the complainant proves that the accused had issued cheques in question in discharge of the legally recoverable debt as contended by him?
2. Whether complainant proves that the accused has committed the offence punishable under Sec.138 of NI Act?
3. Whether the complainant is entitled for the relief as prayed in the complaint?
4. What order?
7. My answer to the above points is as follows : Point No.1 to 3 :In the Negative Point No.4 : As per final order for the following : REASONS
8. POINT NO.1 to 3 : Since these points are interlinked and to avoid repetition they are taken together for common discussion. Before peeping the disputed facts it is appropriate to refer the 28 C.C.No.5806 of 2019 SCCH-26 undisputed facts, 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 the complainant company is a limited company and registered under the provisions of companies Act. The accused is a proprietor and authorized signatory doing business in the name and style of M/s S.V.R.Steel suppliers. The complainant company and accused proprietorship having business transactions since 2015 to 2018. The complainant company having many branches in all over India and complainant company having bank A/cs in many states/cities. The disputed cheque belongs to accused proprietorship and bear signature was belongs to proprietor i.e., accused Mr.Laxman Kumar. The said cheque got dishonoured for the reason of Insufficient Funds. The complainant company had issued legal notice, the legal notice addressed to accused proprietorship returned as Unclaimed on 20082019 and notice issued addressing the name of proprietor returned as Door locked on 10082019, 13082019, but accused has not replied at appropriate time.
9. With above admitted facts, now the facts in issue are 29 C.C.No.5806 of 2019 SCCH-26 analyzed, as already stated the accused has denied the entire case of the complainant company as to commission of the offence punishable under section 138 of NI Act. While recording their plea for the said offence and also accused has denied the incriminating circumstance found in the evidence of the complainant. At the time of recording of his statement under section 313 of Cr.P.C., The accused has mainly denied the claim of complainant company, on going through the crossexamination of PW1, it is clear that in addition to the total denial of the case of the complainant company, the accused has specifically contended that he well aware about complainant company officials and he doing transactions with them. The accused was running steel business in the name and style of M/s S.V.R.Steel suppliers and he has approached the complainant in the year 2015 to purchase the materials from with the complainant company and gave a proposal to the company that he has purchased steel material on the basis of credit and the same would be clear within a month. At that point of time, the complainant has demanded three blank signed cheques for the purpose of security. Theretofore the accused found hope faithfully on the complainant he signed on the alleged cheques 30 C.C.No.5806 of 2019 SCCH-26 and issued the same to the complainant company for the purpose of the security only. The accused was a good and regular customer and has purchased the materials as per his requirement. Since then, he has purchased more than a sum of Rs.3 crore until 2018. In the year of 2018, he closed his business M/s S.V.R.Steel suppliers, due to some personal problems and before he closed his business he made it clear all his balance to complainant company without any due. At that time, he requested with the complainant to return the alleged cheques to him, at that point of time, they said that they will return the same within few weeks because the said cheques is in the head office and there were some procedure to return the same. The alleged cheques are very old cheques and which were given to the complainant by accused only for security purpose. The allegations of complaint are totally false and baseless which is far with from truth. He was paid all the balance amount to the complainant in the year 2018 before he was closing his business. The present complaint filed against this accused only an intention to cheat and wrongful gain from accused. Therefore, on the above objections the accused seeking the present complaint is not maintainable and liable to be dismissed in limine. 31 C.C.No.5806 of 2019
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10. It is needless to say that the proceeding under section 138 of NI Act is an exception to the general principle that the accused is presumed to be innocent until the guilty is proved beyond all reasonable doubt. In the proceedings initiated under section 138 of NI Act, proof beyond all reasonable doubt is subjected to presumption envisaged under section 139 of NI Act. Once the requirement of Sec.138 of NI Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged under Sec.139 of NI Act is mandatory in nature and it has to be raised in all the cases on fulfillment of the requirements of Sec.138 of NI Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa V/s Mohan reported in AIR 2010 SC (1898) by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishnajanardhana Bhat V/s Dattareya G. Hegde reported in AIR 2008 SC (1325) it was held that "existence of legally recoverable debt or liability is a matter of presumption under section 139 of NI Act". The Hon'ble Apex Court disapproved the principle laid down in 32 C.C.No.5806 of 2019 SCCH-26 Krishnajanardhana Bhat case that "initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshmi Naryana V/s 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 the Hon'ble Apex Court in Crl. Appeal No.803/2018 Krishna Rao V/s Shankare Gowda reported in 2018(7) SCJ 300 reiterated the above principle further as provided under Sec.118 it is to be presumed that the cheque in question was issued for consideration on the date found therein.
11. In the light of the rival contention of the parties at the outset it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of NI Act as contended. In order to prove the case of the complainant, One Srinivasa MurthyManager Accounts and PA holder represented by complainant company has examined as PW1 and he reiterated the complaint averments in his examinationinchief by way of affidavit and got documents marked as ExP1 to 11. On the other hand, The accused did not opt to lead any evidence. In addition to that the complainant has produced ExP1- 33 C.C.No.5806 of 2019 SCCH-26 board of resolution dt.1962017, ExP2power of attorney dt.117 2017, ExP3 Cheque dt.20072019 for a sum of Rs.10 lakhs, ExP4 bank endorsement dt.282019, ExP5cheque dt.2072019 for sum of Rs.10 lakhs. ExP6bank endorsement dt.282019, ExP7legal notice dt.582019, ExP8 postal receipt, ExP9 and 10 unopened, unserved RPAD covers, ExP11statement maintained by complainant company pertaining to accused proprietorship.
12. In the light of rival contention of the parties, at the outset it is to be determined as to whether the complainant had complied with all the requirements of Section 138 of NI Act as contended. In order to prove the case, the complainant company Manager Accounts and PA holder reiterated the complaint averments in his sworn statement by way of affidavit which itself is treated as examination in chief in view of the decision of Hon'ble Apex court reported in 2014(A) SCC 590 Indian Bank Association and others Vs Union of India and others (WP civil No.18/2013). On perusal of these documents, it is clear that the complainant had presented the cheques for encashment within its validity, got issued statutory notice in time and presented the complaint within the prescribed period. So it is clear that, the 34 C.C.No.5806 of 2019 SCCH-26 complainant company complied statutory requirements of presenting cheques, issuing notice and presenting complaint well in time.
13. On conjoint reading of the entire oral and documentary evidence, they remains no doubt that the complainant company had complied with all the requirements of the Sec.138 of NI Act. This being the fact, as discussed earlier in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available under section 138 of NI Act is required to be drawn on some presume that the accused had issued the cheques as per Ex.P3 and 5 towards discharge of legally recoverable debt. It is also presumed that the cheques were issued for consideration on the date as mentioned therein.
14. It is well settled principle of law through catena of decisions that though the statutory presumptions available under Sec.118 and 139 of NI Act are mandatory in nature, they are the rebuttal one. It is needless to say that when the complainant proves the requirement of Sec.138 of NI Act the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the 35 C.C.No.5806 of 2019 SCCH-26 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 on the shoulder of the complainant. It is also settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also set in rest 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 Acts elicited in the crossexamination 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 decisions of the Hon'ble Apex Court reported in 2006(3) SCC (CRL) 30 Tamilnadu Marcantile Bank Limited V/s M/s Subbaiah Gas Agency and others. ILR 2009 (2) 1633 Kumar Exports V/s Sharma Carpets, AIR 2008 SCC 1325 Krishnajanardhana V/s Dattareya G. Hegde, 2013 SCR (SAR) CRI 373 Vijay V/s Lakshman & another and AIR 2010 SC 1898 Rangappa V/s 36 C.C.No.5806 of 2019 SCCH-26 Mohan and Crl. Appeal No.230 & 231/2019 Bir Singh V/s Mukesh Kumar. Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
15. The counsel for accused conducted detailed cross examination of PW1, during course of cross examination, PW1 was deposed that the accused well known to complainant company since 2015, he done business transaction with complainant company approximate sum of Rs.3 crore till 2018. The complainant company registered under companies Act and complainant company adopted byelaws while registering company. The complainant company lodged several complaints against defaulters in various courts. The complainant company maintained accounts extracts and they carried audit in every year. He did not produced before this court relevant company ledger accounts and company audited reports. He denied the suggestion of accused, they took security cheques from their customers before commencing business with complainant company. Further PW1 contending during course of cross examination that they maintained relevant ledgers in their company, the accused due 37 C.C.No.5806 of 2019 SCCH-26 towards complainant company and it reflects in their ledger account statement. Further he contended that before sending statutory notice to accused, they sent notice from complainant company to accused and he denied the suggestions of accused. The alleged cheques in question are very old and there is no signature of accused on documents produced by complainant and he contended the accused signature found on cheques and he undertake before this court he would produce statement of account and how much due accused had towards complainant company and income tax details of complainant company and how much amount paid by accused in the next date of hearing before this court. Further PW1 admitted during course of cross examination they normally supplied materials to their customers through transport, he clearly admitted there is no acknowledgment from accused for receiving materials from complainant company. Further he undertake before this court while denying the suggestion of accused regarding there is no receipt from complainant company for supplying materials to accused and he undertake for production of the said receipts and he denied other formal suggestions putforth by accused.
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16. In view of the defence taken by the accused as against the claim of the complainant company, now the evidence available on behalf of the accused is analyzed, in support of defence of accused in addition to the cross examination of complainant side, Admittedly Ex P3 and 5 cheques dt2072019, cheques were presented for encashment on 282019, legal notice issued on 582019. On perusal of ExP11, it is forthcoming that the accused having due of Rs.52,28,666/ as on 12082016. The legal notice sent by complainant company returned with postal shara as Unclaimed on 20082019. The accused did not replied the notice issued by complainant at appropriate time. During course of trial, the accused mainly contended before this court that the alleged cheques in question were issued to the possession of complainant company in the year 2015 for security purpose, he done business with complainant company from 2015 to till 2018. He cleared entire outstanding due amount towards complainant company and he closed his business in the year 2018. The complainant company misused his blank signed cheques and created statement and filed false case against this case for the purpose of illegal gain. Admittedly accused did not placed any 39 C.C.No.5806 of 2019 SCCH-26 materials to substantiate his defence before this court. It is settled principle of law it is not mandatory to accused to adduce evidence or produce documents, he can make use of complainant documents, the accused conducted detailed cross examination of PW1. During course of cross examination, he questioned about receipts/invoices and accused mainly denied he did not received any materials from complainant company as alleged in the complaint and there is no documentary proof for receiving materials from complainant company. Admittedly the complainant did not produced receipt/invoices for show before this court, they supplied materials worth of Rs.20 lakhs in this case. The complainant company mainly relied ExP11 i.e., statement of a/c which is maintained by complainant company. During course of cross examination, accused suggested ExP11 can be chance of creating in their computer in the office of complainant company. Even this suggestion denied by PW1 he did not produced auditing statement, IT return document, daily ledger a/c maintained by complainant company and other related documents of complainant company as undertook by PW1 before this court. As per the averments of complaint, the accused has 40 C.C.No.5806 of 2019 SCCH-26 purchased the materials as per the requirements. The accused agreed to pay the delay charges at 24% p.a. in the event of fail to pay the amount as agreed. The accused has due and owe a sum of Rs.52,28,666/ for the supplies made and towards discharge of partial legal liability has issued cheques. To substantiate this fact, there is no materials from complainant company. The accused himself admitted during trial, he had business transaction with complainant company since 2015 till 2018 and he done total turnover of purchase materials a sum of Rs.3 crore and he is good customer and he doing business on credit basis. It is burden on complainant to prove his complaint averments with documentary proof. Section 101 of Indian Evidence Act clearly stated who ever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. An obligation to prove the case setup by the party who comes first to court i.e., whatsoever comes to court for a remedy has to prove his case. In otherwords " he who asserts must prove" the standard of proof in civil cases is preponderance of 41 C.C.No.5806 of 2019 SCCH-26 probability, while in the criminal cases the standard of proof is beyond the reasonable doubts. If no evidence at all is adduced by either side, the person on whom the burden of proof lies would fail. One who asserts a particular fact is in existence, then he has to prove the said fact unless and until the law says that the burden lies unanymore else. In the instant case, the complainant company by using negotiable instrument and claiming huge amount of Rs.20 lakhs from accused on the basis of ExP11. ExP11 is a computerized account statement which is maintained by complainant company, there would be chance of addition and deletion, figures, it is exclusively control by the complainant company. ExP11, nothing has been produced by complainant company to corroborate the claim of complainant. There is no documentary proof from complainant company they supplied this much of materials on so and so dates and accused received the said materials which had been supplied by complainant company on credit basis and the complainant company raised invoices for which and company paid necessary taxes to government and materials supplied through transport vehicles etc., details were not placed by complainant company before this court. During course of cross 42 C.C.No.5806 of 2019 SCCH-26 examination, the accused posed material question to PW1 he admitted the complainant company maintained necessary ledger accounts and company regularly paying income tax and other related taxes to competent authority. Further more there is a documents with complainant to show materials supplied to accused like receipts or invoices and other related documents. The PW1 undertook before this court he would produce all documents for kind perusal of this court, but he did not do so. Section 114 of Indian Evidence Act conferred this court for nonproduction of documents courts have discretionary power to draw adverse inference against the failing party. This fact upheld by Hon'ble Supreme Court of India in case reported in State represented by Inspector of Police, Vishakapattanam Vs Surya Sankaram karri 2006 AIR SCW 4576 and in case between Ramdas Vs State of Maharastra 1976(3) SCC wherein Apex court reiterates the proposition of law that " in the event of nonproduction of document, adverse inference may be drawn against the failing party". Further wherein Apex court in case Inspector of police Vishakapattanam Vs Surya Sankaram karri specifically held that " that a document being in possession 43 C.C.No.5806 of 2019 SCCH-26 of public functionary, who is under a statutory obligation to produce the same before court of law, fails and/or neglect to produce the same an adverse inference may be drawn against him. The law gives exclusive discretion to the court to presume the existence of any fact which things likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vice versa the facts of the particular case. The discretion conferred by Section 114 of Indian Evidence Act is an inference of a certain fact drawn from other proved facts".
17. On careful analize entire evidence and document, it is clear that the complainant has not produced any document to show or substantiate the very complaint averments as on the date of issuance of cheques or prior to issuance of cheques, the complainant company and accused having business transactions and complainant company had been supplied materials of Rs.20 lakhs for such, complainant company raised invoices and the said amount was due from accused and complainant company charged over due interest on delay payment. Absolutely there is no materials. The complainant utterly 44 C.C.No.5806 of 2019 SCCH-26 failed in proving outstanding due from accused towards complainant company with documentary proof. Admittedly the signed blank disputed cheques took from accused for security purpose in the year 2015 at the time/before commencing business transaction with complainant company. During course of cross examination, PW1 clearly admitted before this court that ನವ ಗಗಹಕರರರದಗ ವವವಹರ ಮಡಬಬಕದರ ಕರಪನಯಯ ಅಕರಟಟಟಳನಯ ನ ನವರಹಣ ಮಡಬಬಕಯ ಎರದರ ಸರ . ಪಗತ ವಷರರರರಮಮ ಕರಪನಯಲ ಆಡಟ ನ ಈ ನವಯಲಯರರ ರರಟಟಟಲಲ ಎರದರ ಸರ .
ಮಡಸಯತತಬವ. ಅಕರಟಟ ಪಸತಕವನಯ
ನಮಮ ಕರಪನಯ ಜರತ ಆರರಬಪ ವವವಹರ ಮಡರಯವ ಪತರ ವವರಗಳನಯ
ನ
ಈ ನವಯಲಯರರ ರರಡಲಯ ತರರದರ ಇಲಲ. ನವ ಯವದಬ
ನ ಗಗಹಕರಗ ಕಳಯಹರರಡಯವದಯ transport ಮಯಖರತರ
ಮಬಟಬರಯಲಟ ಗಳನಯ
ಎರದರ ಸರ . ಯವ ವವಕತಗಳಯ ಮಟರಯಲಟ ಗಳನಯ
ನ receive
ಮಡರರರಡದರ ಎರದಯ ತರಬರಸಯವ ದಖಲಗಳನಯ
ನ ಇಲಯವರಗರ
45 C.C.No.5806 of 2019
SCCH-26
ನವಯಲಯರರ ಹಜರಯಪಡಸಲಲ ಎರದರ ಸರ . ಸಕ ಹಜರಯಪಡಸಯತತಬನರದಯ ಹಬಳಯತತರ . ಲ ಗಳಯ ನಮ ಆರರಬಪಗ ಸರಬರದಸದ ಬಲಯ ಮ ಬಳ ಇಲಲ ಎರದರ ಸರಯಲಲ. ನಮಮ ಕರಪನ ಪ ಗತಬ ವಷರ ಆದಯ ತರಗ ಪವತ ಮಡಯತತದ. ಪಗತಬ ವಷರ ಆದಯ ತರಗ ಪವತ ಮಡಯವಗ ಯಯರರಗ ಎಷಯ ಟ ಬಕ ಕರಪನಗ ಬರಬಬಕಯ ಎರದಯ ತರಬರಸಬಬಕಯ ಎರದರ ಸಕ ಇರಬಹಯದಯ ಎರದಯ ಹಬಳಯತತರ. ಆದಯ ತರಗಗ ಸರಬರದಸದ ದಖಲಗಳನಯ ನ ನವಯಲಯರರ ರರಟಟಲಲ ಎರದರ ಸರ . ಅಗತವ ಇದದರ ರರಡಯತತಬನ ಎರದಯ ಹಬಳಯತತರ. ನನಯ ನ ನವಯಲಯರರ ರರಡಲಯ ತರರದರ ಇಲಲ.
ಮಬಲ ಹಬಳರಯವ ದಖಲತಗಳನಯ ನನಯ ನವಯಲಯರರ ರರಡಯತತಬನ ಎರದಯ ಹಬಳಯತತರಯವ ದಖಲತಗಳಯ ನಮಮ ಬಳ ಇಲಲ ಎರದರ ಸರಯಲಲ.
18. So the complainant himself admitted before this court he would produce relevant documents to substantiate his complaint averments to prove his claim against accused. He did not produced any documents as admitted by PW1 during course of cross examination. 46 C.C.No.5806 of 2019
SCCH-26 So from this conduct of PW1, it can presume that he had no documents with his possession to show the accused having get materials on credit basis and accused due of Rs.52,28,666/ for partial discharge of above outstanding due he issued the cheques in question in favour of complainant company. Being complainant company registered company under companies Act, they maintained relevant ledger extracts, individual customers running a/cs, each and every materials supplied to its customers, they raised proper invoices or receipts, they regularly paying relevant taxes to competent authorities and other relevant details documents are not produced by complainant company. So non production of above said relevant documents, this court came to conclusion that the version of complainant was doubtful and failed to establish the averments of complainant as pleaded or putup by the complainant. It is primary burden on complainant to prove or establish fact with oral and documentary evidence, the accused is liable for Rs.20 lakhs and to discharge the same, cheques in question was issued. The complainant company has to establish the guilt of accused beyond reasonable doubt. Absolutely the complainant company failed to establish the 47 C.C.No.5806 of 2019 SCCH-26 accused is liable to pay Rs.20 lakhs as mentioned in ExP3 and 5. The complainant company has utterly failed to establish ingredients of Section 138 of NI Act and also failed to prove the guilt of accused beyond reasonable doubt. The accused is through oral and documentary evidence successful in rebutting presumption U/s 139 of NI Act which favour of the complainant company. Considering all these aspects of this case and on perusal of evidence, lead on behalf of complainant, it does not depicts that accused is liable to pay Rs.20 lakhs to the complainant. The documents produced by the complainant does not disclose there existence of legally enforceable debt, which is prerequisite condition for prosecuting a case U/s 138 of NI Act. Presumption U/s 139 and 118 A of NI Act cannot be extended to presume that there exist legally enforceable debt. More, so presumption they themselves are not evidence. Hence viewing from any angle, complainant company has failed to establish existence of legally recoverable debt. It is also trite that mere issuance of cheque without corresponding legally recoverable debt is not an offence. In the instant case also complainant company has not established the existence of legally recoverable debt. Under these circumstances, the 48 C.C.No.5806 of 2019 SCCH-26 imperative conclusion is that the accused has not committed an offence punishable U/s 138 of NI Act. This will entails in acquittal of the accused.
19. Therefore, on going through the entire evidence and records, it clearly appear that the complainant company has suppressed the real fact and come up with some facts to suit his claim on the basis of Ex.P.3 and 5. On the basis of evidence in cross examination of the complainant as PW1, the accused in the case on hand as successfully rebutted the presumption raised in favour of the complainant u/s 138 of NI Act. Even if the cheques in question i.e. Ex.P.3 and 5 were returned uncashed there is absolutely no case against the accused for the offence punishable u/s 138 of NI Act. If the totality of the evidence on record is considered, doubt arises regarding the case of the complainant. Hence, the complainant has failed to prove beyond reasonable doubt that the accused has committed any offence punishable u/s 138 of NI act. The case of the complainant creates serious doubts in the mind of court. The light of existing evidence, this court is of the considered view that the defence of the accused cannot be totally ruled out. Therefore, the case of 49 C.C.No.5806 of 2019 SCCH-26 complainant is totally surrounded with heavy cloud and creates serious doubt. As discussed in detail, when the evidence placed before this court leads to disbelieve the case of the complainant, then the presumption stands rebutted. Thus, considering all these aspects, this court is of the considered view that the complainant company has failed to prove points No.1 to 3 in his favour as contended. It is needless to say that when the complainant failed to prove point no.1 to 3 the complainant cannot be granted with any relief as sought for in this case. Hence, point No.1 to 3 are required to be answered in Negative and answered accordingly.
20. Point No.4: For the reasons discussed in connection with in point No.1 to 3 this court proceed to pass following : : O R D E R : By Acting U/s 255(1) of Cr.P.C the accused is hereby acquitted for the offence punishable U/s 138 of NI 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 3rd February 2022) 50 C.C.No.5806 of 2019 SCCH-26 (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF THE
COMPLAINANT:
PW1: N.Srinivasa Murthy
DOCUMENTS MARKED ON BEHALF OF THE
COMPLAINANT:
Ex.P1: Board resolution
Ex.P2 : Certified copy of power of attorney
ExP3, 5 : Cheques
Ex.P3(a) & 5(a) : Signatures
ExP6 : Bank endorsement
ExP7 : Legal notice
ExP8 : Postal receipts
ExP9 & 10 : Two Unserved postal return covers
ExP11 : Ledger account
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
NIL
DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
NIL
(R.MAHESHA)
XXIV ADDL. SMALL CAUSES JUDGE
51 C.C.No.5806 of 2019
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& A.C.M.M. BENGALURU.
52 C.C.No.5806 of 2019
SCCH-26
Dt 322022
Judgment pronounced in the Open Court vide separate order:
ORDER By Acting U/s 255(1) of Cr.P.C the accused is hereby acquitted for the offence punishable U/s 138 of NI Act.
The bail bond of the accused stands canceled.
(R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.53 C.C.No.5806 of 2019
SCCH-26 54 C.C.No.5806 of 2019 SCCH-26