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2016 DIGILAW 731 (KAR)

VIJAYLAXMI v. MOHAMMED PASHA

2016-10-03

S.N.SATYANARAYANA

body2016
JUDGMENT : S.N. Satyanarayana, J. The complainant in C.C. No. 1840/2009 on the file of learned JMFC-IV has come up in this appeal impugning the judgment dated 30th November, 2015 wherein the private complaint filed under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, is dismissed. 2. The brief facts leading to this appeal are as under: The appellant who is complainant in the Court below is said to be proprietor of Brundavan Enterprises which is dealer in cements. The complaint was initiated by I, husband of the complainant Sri R. Narayan Rao as her power of attorney holder. In the proceedings before the learned Magistrate, he has set the pleadings, he has also adduced evidence. The sum and substance of the complaint in C.C. No. 1840/2009 is that the respondent has purchased cement from complainant on various occasions, in that he was due to complainant in a sum of Rs. 71,356/-. He has not paid the money due to the complainant. Towards clearance of said due he issued a cheque for Rs. C 60,597/- hearing No. 848995 dated 26 12.2008 drawn on State Bank of Mysore, Raichur branch. The said cheque when presented for payment returned with an endorsement 'funds insufficient'. Thereafter statutory notice was issued calling upon him to repay the amount due under the cheque. Since he failed to comply the said demand, complaint was filed against the respondent for offence punishable d under Section 138 of Negotiable Instruments Act. 3. In the said proceedings the defence of the respondent is to the effect that he was regularly purchasing cement from the complainant on credit basis. As and when goods were received he was in the habit of tendering blank cheques as security and continue to pay the value of the goods purchased over a period of time. In the instant case also according to respondent he has paid all the money that was due towards purchase of the cement. However the complainant has foisted a false complaint utilising the blank cheque furnished at the time of receiving the goods. 4. In the criminal complaint on behalf of the complainant the power of attorney holder R. Narayan Rao adduced evidence as PW 1. He produced and marked in all 11 documents, out of that Ex.P-1 is the power of attorney, Exs. 4. In the criminal complaint on behalf of the complainant the power of attorney holder R. Narayan Rao adduced evidence as PW 1. He produced and marked in all 11 documents, out of that Ex.P-1 is the power of attorney, Exs. P-2 to P-8 are documents relating to deposit of cheque and its dishonour. Exs.P-9 to Ex.P-11 are the books said to have maintained by the complainant firm with reference to credit transaction of its customers. The relevant entries with reference to transactions with respondent relating dishonoured cheque is said to be at Ex.P-9(a), Ex.P-10(a) Ex.P.-(c) and Ex.P-11(c). The Respondent effectively cross-examined PW 1. However neither oral nor documentary evidence was produced in support of his defence. An attempt was made to demolish the prosecution witness. In fact the respondent attempted to demonstrate that the entries contained in Ex.P-9 ledger books, are erroneous, they are falsely inserted in the said book, that the said entries do not supped the claim of the complainant to seek recovery of amount under the cheque which was deposited with complainant in blank. 5. The Court below on appreciation of pleadings, oral and documentary evidence available on record proceeded to dismiss the complaint holding that the complainant has failed to demonstrate the alleged transaction between the complainant and the accused resulting in there being a due of Rs. 71,356/- and cheque at Ex.P-2 towards discharge of alleged due. The complainant being aggrieved by the judgment dated 30th November, 2015 has come up in this appeal. 6. Heard the learned Counsel for the appellant and contesting respondent. Perused the lower Court records and also the grounds urged in this appeal. On going through the same it is seen that though the complainant has stated that the accused was due in a sum of Rs. 71,356/- towards outstanding balance for supply of cements. The bills under which the cement was supplied is not produced and marked in the Court below. The entry as seen at Ex.P-10(a) is the ledger book for the year 2006-07 would indicate that at the relevant time of that entry, running bill of the complainant firm is of the series of 310,319,337 whereas the bill which is inserted in between two entries in that is with reference to supply of cement of the value of Rs. 25,500/- under bill No. 435. 25,500/- under bill No. 435. Though the complainant relied upon said entry to substantiate his claim copy of said bill is not produced and marked. The place where it is inserted in said ledger does not indicate that the said entry in Ex. P-10 is genuine. The complainant is registered dealer of cement, she is expected to maintain her books of accounts, the same should have been audited for filing of returns before the Sales tax and Income tax authorities. Though books which are produced and marked at Exs.P-9, 10 and 11 are for the period 2006-07 does not indicate that they were audited by the qualified auditor. 7. It is further seen that in Ex.P-11 there are two entries which is with reference to debiting Rs. 15,345/- towards alleged arrears of interest and as well as an entity of Rs. 8,000/- indicating cash is paid to the accused/respondent, herein by cash. Assuming for a moment such transactions have taken place, the complainant ought to have furnished the voucher for having paid Rs. 8,000/-. Though there is a debit entry for having applied interest for the period from 1.2.2007 to 31.3.2008 towards amount said to be due, the complainant has not shown the principal amount due on which interest is calculated and applied. In the absence of any of these essential details, based on which the complainant is seeking to demonstrate the cheque was given not being on record, the Court below has rightly rejected die evidence of complainant so far as it pertains to Exs.P-9, 10 and 11 and has rightly rejected to accept these three books as books which are maintained by the complainant in its day-to-day business transactions with reference to credit sale made in favour of various persons whose names are referred in the Register. 8. In that view of the matter the reason given by the Court below in rejecting the complaint filed by the appellant appears to be just and proper. Therefore, in the absence of acceptable material to substantiate the alleged transaction resulting in dishonour of cheque, not being properly established, the question of admitting this appeal against the judgment dated 30.11.2015 passed in C.C. No. 1840/2009 on the 8 file of JMFC-IV Court, Raichur does not arise for consideration. Accordingly this appeal is dismissed.