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So, on perusal of the admissions of P.W.1 clearly indicates to the court that i.e, he admitted that there is no agreement between the complainant and accused for purchase of car is concerned and further there is no agreement for dues between the complainant and accused etc., D.W.1 also admitted the aforesaid points that he has not handed over the documents at the time of selling of car to the complainant and he also admitted that Ex.P.12 reply notice has been issued by him through his advocate Manjunath and he also admitted that fixation of car price for Rs.7,15,000/- as per Ex.P.12 document and he also admitted that about the retain of Rs.1,15,000/- for damage expenses and he also explained about retain of Rs.1,15,000/- and he also admitted that there is no agreement at the time of return of car by the complainant and he also admitted that there is no agreement for the retain of Rs.1,15,000/- for damages and further he also admitted that he produced Ex.D5 to 7 documents by collecting him and also admitted that one Asba Khan is his wife and he also admitted that Ex.D6 belongs to his wife and complainant counsel has categorically admitted that in page-7 of cross-examination of D.W.1 dated 28.5.2019 in para No.3 that - ¤¦1 ªÀÄvÀÄÛ 2 ZÉPÀÄÌUÀ¼ÀÄ £À£Àß ºÉAqÀwAiÀÄ PÀA¥À¤UÉ ¸ÀA§AzÀs¥ÀlÖªÀÅ JAzÀgÉ ¸Àj So the said suggestions to the D.W.1, by the complainant counsel clearly indicates to the court that Ex.P.1 & 2 cheques are belongs to the accused wife by name Asba Khan. In entire case proceedings accused has categorically denied that cheques are not belongs to him, even though complainant has not taken any endevaours to initiated any proceedings against the accused wife Asba Khan and further on perusal of the Ex.P.1 & 2 cheques the said documents issued by the Proprietor/Authorised signatory by name Asba Khan and further on perusal of the Ex.D6 it is certificate issued by the Government of India, the said document reads of follows ;
Government of India Form GST REG-06 (See Rule10(1)) Registration certificate Registration Number : 29BFEPA5956BIZN 1 Legal name ASBA KAHN 2 Trade Name, if any RAIN DROP WATER PROOFING SOLUTIONS 3 Constitution of Business Proprietorship 4 Address of Principal place of Business No.92, V P Road, BTM 1st STAGE, MADIWALA ,Karnataka 560 008 5 Date of Liability 01/07/2017 6 Period of Validity From 01/07/2017 To NA 7 Type of Registration Regular 8 Particulars of Approving Authority Signature Name Designation Jurisdictional office
9.Date of issue of Certificate Note: The registration certificate is required to be prominently displayed at all places of business in the state So, the contents of Ex.D.6 indicates to the court that one Asba Khan is the proprietor of the Rain Drop Water Proofing Solutions . So, on careful comparison of entries in Ex.P.1 & 2 cheques and Ex.D.6 clearly indicates to the court that cheques are belongs to the accused wife Asba Khan but the said cheques have been issued by the accused to the complainant to towards repayment i.e, car consideration amount. Of course, on perusal of the admissions of D.W.1 and Ex.P.12 reply notice clearly indicates to the court that about held of car transactions between the complainant and accused for Rs.7,15,000/- after some days on finding defects in the car complainant has returned the said car to the complainant and repaid Rs.6 lakhs by the accused to the complainant and due of Rs.1,15,000/- hence accused has issued cheque i.,e Ex.P.1 & 2. But the now, the dispute is that cheques are not belongs to the accused because the suggestion of the complainant counsel to D.W.1 as stated above and on perusal of the entries in Ex.P.1 & 2 and Ex.D6 corroborates with each other that Asba Khan is the proprietor of Rain Drop Water Proofing Solutions and cheques also belongs to her. Even though accused has issued cheques to complainant but accused has not liable for the offence punishable under section 138 of NI Act, because he is not the proprietor as per Ex.D6 document and he has not signed on Ex.P.1 & 2 cheques but the complainant is at liberty to take any actions against the and under section 420 IPC or other penal provisions nor recovery the amount as per procedure established under law. Of course complainant has proved his case in all preponderance of probabilities i.e, cheques are issued for debts between the complainant and accused i.e., for consideration car i.,e complainant has purchased the said car for Rs.7,15,000/- and after finding defects in the said car complainant has return the said car to the accused and thereafter accused has repaid Rs.6 lakhs to the accused, for remaining amount accused has issued cheques of his wife. The evidence of P.W.1 and Ex.P1 to 13 documents corroborates with each other that about having of dues between the complainant and accused and service of notice on accused and issuance of reply notice by the accused in reply notice accused has categorically admitted in page-2 and para No. 2 about the purchase of car bearing No. KA-05-MN-0783 for Rs. 7,15,000/- and return the said car due to some defects etc, but the complainant has filed the case against the accused instead of filing case against the accused wife Asab Khan. As such any amount of oral evidence placed by the P.W.1, including his documents Ex.P1 to 13 and arguments of the complainant counsel have not helpful to the complainant case, and accused is entitled for benefit of doubt as he is not found guilty. On the other hand, accused has categorically proved that Ex.P1 & 2 cheques are not belongs to him they belongs to his wife Asba Khan as such accused is entitled for benefit of doubt as he is not found guilty. Further, the admissions of D.W.1 and Ex.D1 to 7 documents indicates to the court that about held of car transactions between the complainant and accused i.e, car No. KA-05-MN-0783 for Rs.7,15,000/- and after purchase of said car and on finding defects the said car was returned to the accused has and accused repaid the amount of Rs.6 lakhs and he is due of Rs1,15,000/-. So, for the said dues instead of issuance of his cheques he has issued cheques of his wife. The said acts of the accused are not coming under the purview of under section 138 of NI Act proceedings, Hence, accused is entitled for an acquittal and I answer this Point No.1 in the Negative.