Bangalore District Court
M/S. Kleanwell Hygiene Pro vs M/S. Massive Hygiene Care Products on 28 September, 2021
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BA L, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED IS THE 28TH DAY OF SEPTEMBER, 2021.
C.C.No.51461/2013
COMPLAINANT : M/S. Kleanwell Hygiene Pro.
No.B19, KSSIDC Industrial Area,
Doddaballapura, Bangalore562103,
represented by it's Proprietrix Smt.
Yamuna Ramesh residing at, No.2372,
16th main HAL IInd stage,
Indira Nagar, Bangalore560008.
.Vs.
ACCUSED 1. M/s. Massive Hygiene Care Products
(a Partnership firm)
No.2. 3rd Cross, Satyanarayana
Temple Street, Gupta layout, Halasur,
Bangalore560008,
and also at
No.9, 4th cross, guptha Layout,
Halasur, Bangalore560008,
represented by its partners
1. Sri. Mahesh Gandhi,
2.Sri. Mukesh Rawath
2
C.C.No.51461/2013
2. Sri. Mahesh Gandhi
Partner
M/s. Massive Hygiene Care Products
No.9, 4th Cross, Guptha Layout,
Halasur, Bangalore560008,
3. Sri. Mukesh Rawat
Partner
M/s. Massive Hygiene Care Products
No.B84, KSSIDC industrial Area,
Doddaballapura, Bangalore5622103.
JUDGMENT
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2. The factual matrix of the case are as follows: Complainant claims to have engaged in manufacturing of cleaning chemicals, tissue papers etc., and also importing cleaning accessories, dispenses and reckoned as one stop cleaning solution providers for all house keeping materials and property maintenance services, the accused No.1 being partnership firm was carrying business of dealing with cleaning chemicals 3 C.C.No.51461/2013 tissue papers etc., accused No.2 and 3 were it's partners, had approached it through second accused to supply of tissue papers, cleaning accessories and dispensers as and when required, accordingly, accused had placed orders for supply of above materials, based on it the complainant has supplied materials to the accused from time to time, and accused has maintained an open, current and running account in respect of supply of materials, hence, as on the date the account of the accused shows balance of Rs.10,19,094.50 ps.
3. Further, averred that, the accused in partial discharge of liability towards the value of materials sold by the complainant had issued a cheque bearing No.640256 dated 11.07.2012 drawn on Yes Bank Ltd. Hal 3rd Stage branch, for sum of Rs.1,73,070/ in favour of complainant firm containing the signature of second accused, believing the same complainant presented it through his banker Panjab national Bank, Indira Nagar on 06.08.2012, but, it was returned unpaid due to "payment stop by the drawer", accordingly, the complainant alleged that, the 2nd and 3rd accused were being managing the affairs of the 1st accused liable for the default, as such, 4 C.C.No.51461/2013 same was brought to the notice to them, but, it's efforts were went on vain, accordingly, it was constrained to issue legal notice to the accused demanding to pay the cheque amount and an interest at the rate of 24% p.a for unlawfully with holding the payment of cheque amount on 06.09.2012, same was served on the accused on 09.09.2012, but, did not comply his demand, accordingly alleges the accused have committed an o/p/u/s 138 of N.I Act.
4. The court took cognizance for an offense punishable under Sec.138 of N.I. Act, based on the complaint, sworn statement and documents filed by the complainant and ordered to be registered a criminal case against the accused No. 1 to 3 for an offense punishable under Sec.138 of N.I. Act.
5. In pursuance of summons, the accused appeared through their counsel, accused No.2 and 3 were enlarged on bail. Plea has been recorded, accused pleaded not guilty and claimed to be tried.
5C.C.No.51461/2013
6. To prove the case, the complainant got examined it's proprietrix as PW.1 and relied upon Ex.P1 to P16, on closure of complainant side evidence, the accused was examined U/Sec.313 (1) (b) of Cr.P.C., they denied the incriminating materials on record and contended that, they have paid entire amount, the complainant has tampered the date of cheque and filed this false case, further to prove their case accused No.3 examined himself as DW1 and confronted Ex.D1 from PW1.
7. Heard, both the sides, the learned counsel for the complainant also filed his written argument, perused the materials on record, the following points arise for my determination.
1. Whether the complaint proves beyond all reasonable doubt that, accused have committed an o/p/u/s 138 of Negotiable Instruments Act?"
2. What Order?
8. My findings to the above points are follows;
Point No1: In the Negative.
Point No.2: As per final order for forgoing;
6C.C.No.51461/2013 REASONS
9. The complainant claims to have engaged in manufacturing, cleaning chemicals, tissue papers and providers of all house keeping materials and property maintenance services, during it's business 2nd accused by representing A.1 had placed purchase orders of tissue papers, cleaning accessories and dispensers as and when required, accordingly, complainant has supplied the same from time to time, on this background of business transactions between it, complainant has maintained an open, current and running account with it for supply of said materials, accordingly, as on the date the balance of the accused shows in account sum of Rs.10,19,094/ towards partial discharge of the same accused allegedly issued cheque bearing No.640256 dated 11.01.2012 drawn on Yes Bank, Indira Nagar for sum of Rs.1,73,070/ in its favour, same was presented on 06.08.2012, but, it was returned unpaid for the reason of "payment stopped by drawer", based on it, the complainant caused legal notice, same was served on 09.09.2012, but, accused have not complied it.
7C.C.No.51461/2013
10. The complainant in order to prove it's case, examined it's proprietrix Yamuna Ramesh as PW1, she reiterated the complaint averments and placed reliance on Ex.P1 to 16, accused have subjected the PW1 for cross examination, wherein, they suggested that, they had balance of Rs.9,00,000/, they issued Ex.P1 cheque in favour of the complainant for sum of Rs.1,73,070/, but, there was mistake in date i.e., the date was wrongly mentioned as 11.01.2011 instead of 11.01.2012, therefore, as per their instruction husband of the PW1 had struck off the date 11.01.2011 and written the date as 11.01.2012, they put their signature near the place where the correction has made, however, subsequently in the month of march 2012 they have cleared the entire balance of Rs.9,00,000/, even then the complainant without their knowledge had changed or tampered the date in Ex.P1 from 11.01.2012 to 11.07.2012 and deposited for encashment illegally for wrongfully gain, accordingly, wife of A2 has lodged a criminal complaint against the complainant and husband of the complainant, on these grounds, they contended that, the liability was not in existence as on 11.07.2012 and cheque has been missued by altering the date from 11.01.2012 to 8 C.C.No.51461/2013 11.07.2012, accordingly, they contended that they are innocents.
11. So, considering rival contentions it is clear that, there were transactions in between the complainant and accused, Ex.P1 cheque pertains to A1 and Ex.P1(a) & (b) are signatures of A2 and 3 admittedly they were authorized signatories of A1 partnership firm, Ex.P1 cheque was issued in favour of complainant and there is no dispute about compliance of Sec.138 (a) to (c), as such, in view of admissions of accused that, Ex.P1 cheuqe pertains to A1 and signature found their on are belongs to A2 and 3, so, it can be safely held that, the complainant has proved the Ex.P1 cheque, signatures Ex.P1(a) and (b) are of the accused, so, once it is proved the mandatory presumption U/S 139 and 118(a) of N.I act has to be drawn in favour of complainant that, the Ex.P1 cheque was issued towards discharge of legally enforceable debt, until contrary is proved, at this stage, it is relevant to note the decision of Hon'ble Apex Court between Rangappa v/s Mohan;
9C.C.No.51461/2013 "Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I.Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
12. Therefore, the onus is on the accused to prove their defence that, as on the date of 11.07.2012 the claimed liability was not in existence and date in Ex.P1 cheque has been allegedly altered or tampered by the complainant from 11.01.2012 to 11.07.2012 without their knowledge and misused for illegal gain, so, onus is on the accused to rebut the presumption, it is well settled law that, the standard of proof for rebuttal of presumption is preponderance of probabilities, but not beyond reasonable doubt, further, the defence must be probable and capable to accept under law by the court, at this 10 C.C.No.51461/2013 stage, it is worth to note the decision of in Sumethi Vij Vs. M/s. Paramount Tech. Fab. Industries, held that, " To disprove the presumption, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt didn't exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they didn't exist".
13. Considering the above dictum with the materials on record, the accused has vehemently relied upon the Ex.D1 confronted to the PW1 and argued that as per Ex.D1 subsequent to dishonor of Ex.P1 cheque on 17.01.2012, 01.02.2012 i.e., during the month of march 2012 the accused have paid entire dues i.e., Rs.9,00,000/ as per Ex.D1 same was acknowledged by the PW1, therefore, there was no liability as on the date of presentation of cheque on 06.08.2012, that too by altering or tampering 11 C.C.No.51461/2013 the date in cheque from 11.01.2012 to 11.07.2012 i.e., after laps of validity period of the cheque.
14. On the other hand, the counsel for the complainant argued that, the Ex.P1 cheque was returned twice for stop payment instruction given by the drawer, therefore, the accused should prove the sufficient amount in their account as on the date of issuance of cheque, further, A2 had corrected the date from 11.01.2012 to 11.07.2012 and A2 also told the complainant that, since the signatures of A2 and A3 already put near the place where corrections made, accordingly, further, signatures not necessary, therefore, there is no material alteration as claimed by the accused, since the Ex.P13 to 16 clearly discloses as on the date of presentation of cheque the outstanding of the accused was Rs.10,19,094/, therefore, Ex.D3 was received towards partial liability, but not as claimed by the accused.
15. Considering the rival claim, I have carefully perused the materials on record, Ex.D1 is confronted to PW1, so, it is not in dispute that, Ex.D1 issued by the complainant 12 C.C.No.51461/2013 herein wherein it is clearly mentioned that, 2 cheques i.e., cheque bearing No.916033 dated 25.02.2012 for sum of Rs.5,00,000/ another cheque bearing No.916035 dated 03.03.2012 for sum of Rs.4,00,000/ were received by the complainant on 01.03.2012, as per the complainant the above payment of Rs.9,00,000/ were received towards partial outstanding amount, but, in Ex.D1 clearly mentioned that, the above cheques were received towards "pending payments" therefore, as claimed by the complainant admittedly there is no reference about outstanding of Rs.10,19,094/ in Ex.D1 or it was received only towards partial liability, to overcome this defence the complainant subsequent to confrontation of Ex.D1 has marked the ledger account of A1 maintained by the complainant, income tax audit reports for the year 201415, 201516, 201617, to prove the balance or outstanding as on 11.07.2012. According to complainant, as per Ex.13 there is clear reference about the dues after deducting Rs.9,00,000/ received through cheque on 01.03.2012 the outstanding of the accused was Rs.10.19.094/, same is reflected in the audit reports about receivable amount from 20142017 reports. On the other hand, the learned counsel for the accused argued 13 C.C.No.51461/2013 that, the Ex.P13 to 16 are not admissible documents, as Ex.P13 is a printout not supported with certificate U/S. 65(b) of Evidence Act and it is created, the invoice number referred in Ex.P3 are not produced to show that, the balance of the accused, therefore, he argued the Ex.P13 is concocted document not admissible piece of evidence, Ex.P14 to 16 are tax audit report issued by charted account, but does not bearing seal and signature of authorised person of income tax department, therefore, without examining the author of Ex.P14 to 16 the documents cannot be considered, accordingly, the complainant has failed to establish the outstandings of the accused as on 11.07.2012 as claimed by the complainant.
16. On considering the rival submissions, I have carefully perused the Ex.P13 to 16, Ex.P13 is copy of ledger account printout from computer, and Ex.P13 admittedly does not bears signatures of the persons who has taken out the printouts of the said document, further, the PW1 admitted that, it is printout of an electronic document does not supported by an affidavit U/S 65(b) of Evidence Act, according to PW1 the Ex.P13 is a ledger account maintained by it, wherein, cheques issued by the 14 C.C.No.51461/2013 accused for Rs.9,00,000/ were credited and balance of Rs.1019,081/is reflected as on 16.03.2012, the documents to prove the existence of legally enforcible debt as per the complainant, however, it is well settled law that, mere marking of a document does not ipso facto proof of it's contents, that too admittedly Ex.P13 is a printout taken out from computer maintained by the complainant, but, it is not a public document, therefore, when the accused specifically challenged document as created one the complainant ought to have produced certificate as required U/S 65(b) of Indian Evidence Act, as this Ex.P13 document is printout copy taken out from the computer, at this stage, it is relevant to note the decision of Hon'ble Apex Court in Arjun Pandith Rao Kotkar Vs. Kailash Kushanrao Gorantal and others, wherein the lordship held that, " The printout or information taken out on a paper stored recorded or copied in optical or magnetic media produced by a computer shall be deemed to a document and shall be admissible in any proceedings supported by certificate U/S 65 B(4) of Evidence Act".
15C.C.No.51461/2013
17. But, herein this case though Ex.P13 produced despite the accused questioned the PW1 about certificate U/S.65B of Evidence Act, the complainant has not produce the certificate with regard to information i.e., computer printout taken from where, who was handling it etc., so, in absence of certificate the Ex.P13 cannot be considered as the complainant has not fulfiled the requirement as per Se.65B(4) Evidence Act, accordingly, as rightly argued by the counsel for the accused without producing the tax invoices to show that, subsequent to payment made through cheque on 01.03.2012 the accused continued to place the purchase orders and complaint has supplied the materials to the accused, accordingly, Ex.P13 cannot be acceptable.
18. Ex.P14 to 16 tax audit report are concern the PW1 clearly admits Ex.P14 to 16 does not bears the signatures or seal of authorized person of income tax department, therefore on careful perusal of Ex.P14 to 16 which clearly reveals that, P14 to 16 tax audit report for the year 2015 to 17, though there is reference about balance of A1 in all the 3 documents, but, it is prepared by a charted accountant and these documents are not a public 16 C.C.No.51461/2013 documents i.e., the tax audit report submitted to the income tax department and obtained the same from income tax department after accepting the returns of complainant, therefore, the examination person who prepared it or author of the document is necessary along with tax invoices raised by the complainant in favour of the accused, that apart as rightly argued the complainant has not produced the balance sheet pertaining to the year 2012 of complainant submitted with ITR to show the tax invoices about balance of the A1, but not produced the same, therefore, in absence of the relevant documents, the Ex.P14 to 16 cannot be acceptable for proof of balance of the accused as on 06.08.2012, accordingly, Ex.P13 to 16 are not admissible documents for proof of balance as these documents are not public documents and also not proved the contents in accordance with law.
19. So far as, alleged material alteration in date of cheque is concern, the PW1 in her cross examination clearly admits on 17.01.2012, on 01.02.2012 i.e., twice she presented the Ex.P1 cheque for encashment, admittedly both the times the cheque was returned for the reasons "stop payment" the accused specifically asked the 17 C.C.No.51461/2013 PW1, who changed the date 11.01.2012 to 11.07.2012 PW1 said that A2 has changed the date from 11.01.2012 to 11.07.2012, but, admittedly, not obtained A2 signature near the place where correction made, however, the PW1 explained that, A2 told her that, signature is not required, as the signatures of A2 and A3 was already there near the place of correction, but, admittedly, she has not received any written consent from the accused to change the date from 11.01.2012 to 11.07.2012, however, it is clear that, initially in the place of 11.07.2012 the date was mentioned as 11.01.2011 and it was struck off, however, at that relevant point of time i.e., change of the date as 11.01.2012, admittedly accused have affixed their signatures near the place where the correction had taken place, however, the accused specifically alleged that, the date 11.01.2012 has been changed by the complainant husband subsequent to payment made on 12.03.2012 to gain wrongfully by altering it intentionally to validate the cheque from 11.01.2012 to 11.07.2012, however, admittedly Ex.P1 cheque was not dishonored, because of alteration in date, but, it is dishonored for stop payment as rightly argued by the counsel for the complainant once 18 C.C.No.51461/2013 the cheque was returned for stop payment the accused must prove sufficient balance in their account then for other reasons they have issued stop payment instruction, at this stage, it is worth to note decision of Hon'ble Apex Court in M/s M.M.T.C Ltd., and another V/S Medchil Chemicals and Pharma Pvt. Ltd., held that, "Even though the cheque dishonored by reason of stop payment instruction an offence under section 138 could still be made out. It is held that, the presumption U/S 139 is attracted in such a case also the authority shows that, even in the cheque is dishonored by reason of stop payment instruction by virtue Sec.139 the court as to presume that, the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Offcourse this is a rebuttable presumption. The accused can thus show that the stop payment instruction were not issued because of insufficiency or paucity of funds if the accused shows that in his account there 19 C.C.No.51461/2013 was sufficient funds to clear the amount of cheque at the time of presentation the cheque for encashment at the drawer bank and that stop payment notice had been issued because of other valid causes including that there was no existing that or liability had been issued because of other valid cause including that there was no existing debt or liability at the time of presentation of cheque for encashment, then an o/p/u/s 138 would not be made out".
20. However, the above settled principle of law would benefits for valid instruments, but not void instruments, as such, admittedly the Ex.P1 cheque was presented twice for collection i.e., on 17.01.2012 and on 01.02.2012 both the times the cheque was returned as stop payment by the drawer, since then admittedly Ex.P1 cheque was in custody of complainant only, according to complaint subsequent to payment of Rs.9,00,000/ made by the accused, A2 had changed the month from 11.01.2012 to 11.07.2012 and also told her that, signatures of the accused for alteration in date was not necessary as the 20 C.C.No.51461/2013 signatures of the A2 and A3 were already there near the place of correction, but, same has been denied by the accused, so, as admitted by the complainant there is alteration in date from 11.01.2012 to 11.07.2012, according to her the month number 01 from 07 changed by A2, but not struck off the date 11.01.2012 and thereafter the date 11.07.2012 written, so, the date altered at the first time was remained there, but, month number has been changed from 01 to 07, by that time admittedly the complainant had presented the Ex.P1 cheque twice for encashment that too at the first instance of correction or alter in date, the complainant had obtained signatures of A2 and 3, but, at the second instance of admitted alteration in date complainant did not bother to take the signatures of the accused to prove the alleged correction made by the A2, for that the PW1 offered an explanation that, A2 told her that already their signatures on the cheque near the place of correction made therefore, it is not necessary, same cannot be acceptable, since the complainant admittedly obtained the signatures of both the partners near the correction place at first instance, which is clearly stands proved that, she had knowledge that, the signatures of drawers of the 21 C.C.No.51461/2013 cheque was necessary where ever the alteration taken place in the cheque, despite of it, complainant has not chosen to obtain the signatures of accused, even admittedly not obtained any written consent from the accused, despite she had custody of the cheque since 11.01.2012, therefore, as admitted by the complainant the defence of the accused stands proved that, there is an alteration in date, it is true that, as per Ex.P2 the cheque was returned not for alternation in date, but, it is for stop payment, and as per Ex.P2 the presumption for reason of dishonor has to be presumed as per Sec.146 of N.I Act, however, the presumption is rebuttable one, therefore, as admitted by the PW1 there is an alteration in date the said fact of alteration in date, admittedly, the complainant has not stated either in legal notice or in her complaint, even the PW1 despite marking Ex.P11 the reply notice issued by A2, the PW1 pleaded her ignorance, even though the A2 right from his reply notice has alleged the alteration in date even though after payment of Rs.9,00,000/ on 01.03.2012, the complainant has presented the cheque 3rd time by altering the month from 01 to 07 to validate the cheque and to gain illegally, therefore, the complainant failed to establish the consent 22 C.C.No.51461/2013 of the accused for alteration in date or A2 had altered the date for that absolutely there is no material brought on record by the complainant, despite the accused denied the alteration and made allegation against the complainant, in C.C. No.20832/2016 on the file of Hon'ble 4th ACMM, at this stage the crucial point require to be considered that, "Whether, the alteration in date on the cheque Ex.P1 is a material alteration or not".
21. It is relevant to note decision of Hon'ble High Court of Karnataka in Mysore state road transport corporation Vs. Somashankar N.R, AIR 1982 KAR 226 wherein, their lordships has simplified what alterations are material alteration and what are not, "Every unsubstantial alteration is not material alteration it is only such alteration as would adversely effect interest of the other side fact which can be called material and material alteration invalidates the instruments.
23C.C.No.51461/2013
22. Further, it is relevant to note Sec.87 of N.I Act same is extracted here below' " Effect of materials alteration any material alteration of a negotiable instrument renders the same void as against any one he/she is a party thereto at the time of making such alteration and does not consent thereto, unless, it was made in order to carry out the common intention of the original parties',
23. So, considering above dictum and provision with fact and circumstances of the case as admitted by the complainant there is an alteration in date, the cheque Ex.P1 admittedly with the possession of complainant right from 11.01.2012, further, it is admitted fact that, on 17.01.2012 and on 01.02.2012 the cheque was presented twice and it was dishonored by that time the cheque date admittedly was 11.01.2012, according to the complainant towards discharge of partial liability the accused have issued cheque dated 11.07.2012, but not stated when it was issued, however, during the course of cross examination PW1 stated that, the A2 and 3 came to her 24 C.C.No.51461/2013 office in the month of july 2012 and requested her to present the Ex.P1 cheque, but, the very fact of custody of the cheque by the complainant since 11.01.2012 and it's dishonor at two times not at all stated, even admittedly complaint has not issued rejoinder for reply notice issued by the A2, wherein, the A2 has specifically alleged the alteration in date to get validates the cheque, even there is no whisper about reply notice in complaint, so, absolutely there is no material produced by the complainant to show that, the accused have consented or A2 himself had changed the alteration in date, therefore, the complainant failed to establish A2 had altered the date in cheque, further, it is significant to note that, the accused specifically contended soon after payment of Rs.9,00,000/ accused partnership firm was dishonored as there was dispute in between partners and the E.P1 cheque was stale cheque, accordingly, they have not demanded to return the cheque, so, as held supra the Ex.P1 cheque was admittedly presented twice by the complainant for encashment i.e., on 11.01.2012, thereafter, on 01.02.2012 , during that point of time the validity of the cheque was 6 months, so, it is not in dispute since 11.01.2012 the custody of Ex.P1 cheque 25 C.C.No.51461/2013 was with the PW1, according to her in the month of july A2 altered the date from 11.01.2012 to 11.07.2012, however, the accused specifically alleged to revalidated the cheque the complainant altered the date from 11.01.2012 to 11.07.2012 without their consent to gain illegally, admittedly, complaint had not obtained signature of A2 near the alteration in date during the month of july 2012, even admittedly, she has not taken the written consent from the accused for such an alteration, in absence of that, as rightly contended by the accused alteration in date is adversely affect the interest of the accused in absence of proof that, as on the month of july 2012, the accused had outstanding of Rs.10,19,094/, as the PW1 has admitted as on 12.03.2012, she received Rs.9,00,000/ from the accused by endorsing that, Rs.9,00,000/ amount was received towards pending payment, so, right from 01.03.2012 till month of july 2012 i.e., as on the date of alteration of cheque i.e., on 11.07.2012 complaint has to prove, how much amount the accused had due and towards which tax invoices the amount of Rs.9,00,000/ was adjusted and for which tax invoices the accused has due as on 11.07.2012, but, same has not been proved by the 26 C.C.No.51461/2013 complainant, as such, the accused probalised the alteration in date is material, because, from 11.01.2012 Ex.P1 cheque was with custody of PW1, admittedly, on 12.03.2012 accused have paid Rs.9,00,000/ to the complainant, even on that day soon after the payment of Rs.9,00,000/ the custody of cheque was with the complainant, soon after the payment of admitted Rs.9,00,000/ whether accused had further had transaction with the complainant, if so every sales must be proved with tax invoices, but, same is not produced and it is further admitted that there was no alteration of month number i.e., 11.07.2012 was not there at the time of second time presentation on 01.02.2012, so, without obtaining the signatures of the accused near the correction of date or written consent the alteration in date adversely affects the interest of the accused, therefore, without the consent of the accused alteration in date invalidates the cheque as void instrument as per Sec.87 of N.I Act, as there is no consent obtained from the accused by the complainant for alteration in date or proved the alteration in date made by the A2, therefore, the alteration in date as contended by the accused has been proved by the accused and it is material alteration 27 C.C.No.51461/2013 for revalidating the cheque and gain illegally the instrument Ex.P1 becomes void instrument and all the presumption drawn in favour of the complainant based on the cheque has been faded away in view of material alteration, as such, the reverse onus is on the complainant to prove her case independently without the aid of presumption that, the alteration in cheque made by the A2 in the month of july and asked her to present towards discharge of legally enforcible debt, to discharge reverse onus as held supra she produced the Ex.P13 to 16, but, same are not admissible documents to believe the existence of legally enforceable debt and also failed to produce tax invoices to show the accused were outstanding amount of Rs.10,19,084/ as on 11.07.2012, therefore, the materials on record clearly probablise the defence of the accused that, there was no liability of the accused as on 11.07.2012 and Ex.P1 cheque is void instrument in view of material alteration in date, as such, the complainant has failed to establish as on the date of cheque i.e., 11.07.2012 the accused were liable to pay Rs.10,19,084/ to the complainant and cheque has been issued in the month of july 2012 by changing the date, in view of the failure to prove the argument addressed by 28 C.C.No.51461/2013 the complainant about discrepancies in defence i.e., A2 issued reply notice, but not stepped in to the witness box and its reply notice A2 assumed the alteration in date, so, A2 had knowledge that he changed the date in cheque, but, same is not acceptable as the complainant has suppressed very issuance of reply notice to the complainant alleging the alteration in date, the complainant must prove her case independently as the complainant has not disputed the alteration in date and cheque was in her custody since 11.01.2012, therefore, the such admitted alteration when adversely affect in interest of accused in view of Ex.D1 i.e., prior to the date of cheque the accused have admittedly paid 9 lakhs to the complainant by placing tax invoices and towards which invoices the amount received from accused i.e., 9 lakhs were adjusted for that absolutely there is no material on record to show that, as on 11.01.2012 accused had out standing Rs.10,19,081/ so, the complainant has failed to remove all these reasonable doubts surrounding to her case i.e., material alteration without taking signature of the A2 or written consent from the accused for alteration in date and not produced the admissible documents to prove the liability of the accused as on 11.07.2012 was 29 C.C.No.51461/2013 Rs.10,19,081/, therefore, the case of the complainant is fully surrounded with clouds of reasonable doubts, accordingly, she failed to prove the guilt of the accused i.e., beyond all reasonable doubt, therefore, I answered the above point in the Negative, accordingly, accused are deserved to be acquitted.
24. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(1) of Criminal Procedure Code, the accused No. 1 to 3 are acquitted for the offence punishable U/s 138 of Negotiable Instrument Act, The bail bonds and surety bond of the accused shall stand cancelled.
(Dictated to the Stenographer directly on computer, typed by her, corrected, signed and then pronounced by me in the open court, on this the 28th day of September, 2021) (M.Vijay), XXXIII ACMM, BENGALURU.
30C.C.No.51461/2013 ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : M/S. Kleanwell Hygiene Pro.
2. Documents marked on behalf of complainant:
Ex.P.1 :
Original Cheque
Ex.P. 1(a) & (b) :
Signature of the accused
Ex.P.2 :
Bank return memo
Ex.P.3 :
Office copy of the legal notice
Ex.P.4 :
3 Postal receipts
Ex.P.5 to 7 :
3 Postal Acknowledgments
Ex.P. 8 to 10 :
three courier receipts
Ex.P.11 :
Reply notice
Ex.P. 12 :
Notarized copy of VAT registration
certificate
Ex.P. 13 & 14, 16 & 17 : The ledger account extract relating to the A1 Company, tax audit report for the year 201314, 201415, 201617.
Ex.P14(a), 15(a) and : The entires relating to the accused 16(a) company
3. Witnesses examined on behalf of Accused:
D.W1 : Mukesh D. Ravath
31
C.C.No.51461/2013
4. Documents marked on behalf of Accused:
Ex.D.1 : Issued acknowledgment for having been received 2 cheque from accused (M.Vijay), XXXIII ACMM, BENGALURU.