THIS CRL.A IS FILED U/S 378(4) OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED 22.08.2013 PASSED BY THE XV ACMM, BANGALORE IN CC NO.32086/2006 ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.

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THIS CRL.A, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA

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ORAL JUDGMENT

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The appellant being the complainant in

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CC.No.32086/2006 on the file of the learned XV Additional Chief Metropolitan Magistrate, Bengaluru, is impugning the judgment dated 22.08.2013 acquitting the respondents/accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short the NI Act).

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For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

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Brief facts of the case are that, the complainant

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filed the private complaint in PCR No.6932/2006 against accused Nos.1 to 5 alleging commission of the offence

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punishable under Section 138 of NI Act. It is contended that accused No.1 is a Private Limited Company. Accused No.2 is the Chairman and Managing Director, accused Nos.3 to 5 are the Directors and they are actively participating in the business of accused No.1.

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It is contended that the accused conducted business under the name and style as 'Bengaluru Consumer Expo-2005' for 25 days. They availed the services of the complainant for providing men and materials, exhibition space, for infrastructure and decoration. The accused agreed to pay Rs.25,00,000/- to the complainant and towards part payment, they have issued few cheques. Out of the same, cheque bearing No.597331 dated 04.05.2005 for Rs.5,00,000/- and cheque bearing No.597339 dated 21.05.2005 is for Rs.6,00,000/-. When both these cheques were presented for encashment, same were dishonored as there was insufficient funds. The complainant issued legal notice calling upon the accused to repay the cheques amount. Inspite of receipt of legal notice, they have not repaid the cheque amount. Accused No.4 sent reply denying liability towards the complainant and did not repay the amount, and thereby all the accused have

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committed offence punishable under Section 138 of NI Act. Accordingly, the complainant prayed the Trial Court to take cognizance of the offence and to initiate legal action.

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The accused appeared before the Trial Court and pleaded not guilty for the offence under Section 138 of NI Act. The complainant examined as PW1 and got marked Exs.P1 to 11 in support of his contention. The accused denied all the incriminating materials available on record and examined as DWs.1 to 4 and got marked Exs.D1 to 58 in support of their defence. The trial Court after taking into consideration all the materials on record came to the conclusion that the complainant is not successful in proving the guilt of the accused beyond reasonable doubt. Accordingly, the accused were acquitted. Being aggrieved by the same, the complainant is before this Court.

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Learned counsel for the appellant and respondents are absent. No representation. Inspite of giving sufficient opportunity, they have not addressed their arguments. Hence, their arguments is taken as nil. Perused the materials including Trial Court records.

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NC: 2024:KHC:48617 CRL.A No. 1057 of 2013

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On perusal of the materials available on record, the

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point that would arise for my consideration is:

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"Whether the impugned judgment of acquittal passed by the Trial Court suffers from perversity or illegality and calls for interference by this Court?"

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My answer to the above point is in the 'negative' and pass the following:

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REASONS

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It is the contention of the complainant that he had provided services to accused No.1, which is the Company represented by accused Nos.2 to 5, who are the Directors, and the accused were liable to pay Rs.25,00,000/-. Towards repayment of the same, accused had issued two cheques as per Exs.P1 and 2 for Rs.5,00,000/- and Rs.6,00,000/- each on 04.05.2005 and 21.05.2005. But both cheques were dishonored on presentation, as there was insufficient fund in the account of the accused. Inspite of service of notice, the accused have not repaid the cheque amount. Accused No.4 has issued a reply taking untenable contentions denying his liability. Accused Nos.2 and 5 have issued notice denying their liability

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to pay the amount and thereby, all the accused have committed the offence punishable under Section 138 of NI Act.

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The complainant examined himself as PW1. During cross examination, he categorically admitted that it is only accused No.4, who signed the cheques Exs.P1 and 2. He denied that one Zameer and Ramesh were his employees. The complainant admitted Exs.D1 to 4 exhibited on behalf of the accused. Under Ex.D1, the complainant had received Rs.13,10,000/-. Under Ex.D2 he received Rs.25,000/-, Ex.D3 is the agreement between complainant and accused No.4 for Rs.50,00,000/- and Ex.D4 is the agreement between the parties.

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The accused has examined DWs.1 to 4 denying their liability to pay the amount. It is the contention of the accused Nos.2 and 5 that they are not concerned with the accused No.1-Company and it was only accused No.4, who was dealing with the matter.

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According to accused No.4, even though he admits entering into agreement and engaging services of complainant, contends that the entire amount is already paid through Exs.D9

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to 59, which was paid to one Zameer and Ramesh. It is pertinent to note that Exs.D9 to 59 are similar vouchers of different dates for having paid specific amount and the recipient of the amount to Zameer and Ramesh who acknowledged the receipt for and on behalf of Hussain Brothers i.e., the complainant herein. It is pertinent to note that PW1 admitted Ex.D2 a similar voucher dated 07.05.2005 for having acknowledged the receipt of Rs.25,000/- for and on behalf of Hussain Brothers i.e., the complainant. Exs.D9 to 59 are similar vouchers, when compared Ex.D2 - which is an admitted document.

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The complainant contended that Zameer and Ramesh referred to in vouchers Exs.D9 to 59 were not his employees. During cross examination, PW1 categorically admits that he maintains the muster roll and he has no objections to produce the same before the Court. But no such document is produced in support of his defence, that the recipient of amount under Exs.D9 to 59 were not his employees and were not on muster roll. There is absolutely no reason for the complainant for no proceeding the said muster roll. The specific defence is taken by the accused by producing Exs.9 to 59 and contended

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that the amount is already paid under the vouchers. When the disputed vouchers are compared with Ex.D2 - an admitted voucher, I am of the opinion that the accused has taken probable defence of discharge.

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It is settled position of law that when accused No.4 admits his signature found on Exs.P1 and 2, the presumption under Section 139 of NI Act would arise and the complainant has discharged his initial burden. The burden shifts on the accused to rebut the presumption by probabalising his defence. From the discussions held above, it is clear that accused No.4 has probabalised his defence regarding discharge by producing documents and also examining himself before the Trial Court. Once the accused is successful in probabalising his defence and rebutting the legal presumption under Section 139 of NI Act, the burden again shifts on the complainant to prove existence of legally recoverable debt. In the present case, the complainant has not discharged the said burden and therefore, accused No.4 is entitled for acquittal.

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PW1 categorically admitted that he has no document to show that accused Nos.2 and 5 are the Directors

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of accused No.1-Company. He has not led evidence to show that liability of accused No.3 as well. Admittedly, it was only accused No.4 who signed the cheques Exs.P1 and 2 on behalf of accused No.1-Company. When he is successful in rebutting the presumption under Section 139 of NI Act, and when the complainant is not successful in proving existence of legally recoverable debt, I am of the opinion all the accused are entitled for acquittal.

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I have gone through the impugned judgment of acquittal passed by the Trial Court. It has taken into consideration the oral and documentary evidence in the light of the averments made in the complaint and arrived at a right conclusion. I do not find any reason to interfere with the same. Accordingly, I answer the above point in the negative and proceed to pass the following:

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ORDER

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The appeal is dismissed.

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Sd/- (M G UMA) JUDGE

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BH: List No.: 2 Sl No.: 58

Hussain Brothers v. M/S Rathan Condominium Pvt. Ltd.

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Hussain Brothers v. M/S Rathan Condominium Pvt. Ltd.

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