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2019 DIGILAW 1913 (KAR)

D. Bhagyalakshmi v. Chandrashekar C.

2019-08-30

K.N.PHANEENDRA

body2019
JUDGMENT : K. N. Phaneendra, J. Heard the learned counsel for appellant and respondent on merits of the case as the records have already been received at the admission stage. 2. The brief factual matrix of the case as could be seen from the records is that the complainant- Smt.D.Bhagyalaxmi being the proprietor of M/s. 'Central News Agency' has filed a complaint stating that the accused is the proprietor of a 'Bindushree News Agency' and the accused is the customer of the said proprietorship Concern. In the usual course of business, the accused used to collect money from the shops and remit the same to the complainant. In the year 2009, the accused has committed default in making payments to the complainant in respect of the magazines and periodicals supplied by her to the various shops through the accused. In this context, it is said that, in the month of June, 2009, the accused was due in a sum of Rs.4,00,000/-. In discharge of the said amount, the accused has issued a cheque bearing No.306639 dated 06.02.2010 for a sum of Rs.1,75,000/- and also issued another cheque bearing No.306620 dated 16.04.2010 for a sum of Rs.1,25,000/-. On presentation of those two cheques, same were returned with an endorsement as "funds insufficient" dated 09.02.2010 and 20.04.2010 respectively. After issuance of notice to the accused and after compliance of legal procedures, a complaint came to be filed against the accused before the trial Court. 3. The accused after appearance, contested the case. The complainant got examined herself as PW1 and got marked 11 documents as Exs.P.1 to 11, whereas, the accused got examined himself as DW1 and closed his case. The trial Court after appreciating the oral and documentary evidence on record has come to the conclusion that the complainant has not proved the case beyond all reasonable doubt and giving benefit of doubt, accused has been acquitted. 4. The main ground taken up by the trial Court for acquittal of the accused is that the complainant who was examined as PW1 had admitted at page-9 of her evidence, that she has maintained accounts pertaining to supplying of monthly and weekly magazines to the accused and despite maintaining accounts, she has not produced Account Statement and also she has not produced Account Register Extract maintained by her in order to show the transaction between her and accused. Therefore, giving benefit of doubt, the accused was acquitted. 5. Learned counsel for the appellant/complainant strenuously contends before this Court that issuance of the cheques by the accused has not been disputed and the existence of the liability is also not disputed during the course of cross examination of PW1 as well as in the evidence of DW1, the accused has actually taken up the contention that he has paid the entire amount to the complainant, and that despite payment of entire amount, the cheques were not returned to the accused inspite of repeated requests and demands. But the accused has not discharged his burden by proving how and in what manner the said amount was repaid by him to the complainant. Therefore, it is the reverse burden cast upon the accused to prove the defence taken up by him, as he has not proved the same. Therefore, the trial Court ought to have convicted the accused instead of acquitting the accused by giving benefit of doubt that the complainant has not produced certain documents before the Court. 6. Per contra, the learned counsel for respondent/accused submitted before the Court that after issuance of the cheque, he has paid an amount of Rs.40,000/-, immediately by depositing the amount to the account of the complainant, but the complainant herself has suppressed this fact and has not produced the account extract pertaining to her account to show that the said amount has not been paid by the accused. It is also submitted by the learned counsel that as on 2010 i.e., after issuance of the cheque, he was due in a sum of Rs.2,80,228/-, but the accused has taken up the contention that he has repaid the entire amount. Inspite of having the entire documents like Account Extract and Register, the same have not been produced by the complainant to establish that the said amount has not been paid by the accused to the complainant. Therefore, the trial court has rightly come to the conclusion that there is a doubt with regard to the transaction between the complainant and the accused. As such, the acquittal judgment passed by the trial Court is just and correct and it does not call for any interference at the hands of this Court. 7. Therefore, the trial court has rightly come to the conclusion that there is a doubt with regard to the transaction between the complainant and the accused. As such, the acquittal judgment passed by the trial Court is just and correct and it does not call for any interference at the hands of this Court. 7. Before adverting to the factual matrix of this case, the legal aspects are that, under Section 139 of Negotiable Instrument Act ('NI Act', for short) the initial presumption has to be raised in favour of the complainant that the cheuqe issued by the accused, if it is admitted by the accused, issuance of the cheque, the legal presumption not only raised to the extent with regard to the contents, date and writing of two cheques under Section 118 of the NI Act but also under Section 139 of NI Act, the legal recoverable debt and liability at the hands of the accused has also presumed to be in existence. Once the issuance of the cheuqe is admitted and the business transaction between the accused and complainant is also admitted and as on 2010, after issuance of cheques, the liability is also admitted by the accused during the course of his evidence and also during the course of cross examination. In such an eventuality, the presumption raised under section 139 of NI Act is fortify in favour of the complainant and it virtually creates a reverse burden on the accused to establish that after issuance of the cheques, the due amount has already been discharged from the accused in the manner known to law. In this background, the trial Court has not even appreciated the evidence on record so far as the accused is concerned, it only concentrated on the evidence of PW1, without reference given to the evidence of the accused, the trial Court has come to the conclusion that the complainant's case is doubtful and acquitted the accused. 8. Of course, the complainant has stated at page No.9 that she has maintained accounts with regard to the supply of monthly and weekly magazines to the accused and also accused has not paid the amount. 8. Of course, the complainant has stated at page No.9 that she has maintained accounts with regard to the supply of monthly and weekly magazines to the accused and also accused has not paid the amount. But so far as this transaction is concerned, even without reference to any Register and with reference to selling of magazines and paying the amount to the complainant is the specific case and the contention is that he was due in a sum of Rs.2,80,228/- after issuance of the cheques also, and thereafter, he has exactly paid the said entire amount. In this context, though the trial Court has not made efforts to look into the evidence of the accused, it is just and necessary for this Court to look into the explanation given by the accused in his evidence and in the cross examination wherein he has categorically admitted by producing two documents under S1 and S2. Under S1, he has admitted that, there is no material to show that he has paid any amount to the complainant. He has admitted that as on 03.02.2010, he was due in a sum of Rs.2,80,228.76/- to the complainant and further admitted that, as per S1, he has paid the entire amount to the complainant as on that particular date that was on 03.02.2010 to the extent of Rs.2,80,228.76/- but he has admitted that there is no mention in S1 with regard to the payment of amount to the complainant. 9. Therefore, the facts remains that the accused has admitted the liability of Rs.2,80,228.76/- as on 03.02.2010 but he takes up the contention in defence that he has paid the said amount to the complainant but no material has been placed to prove the same. He has further admitted that he has paid Rs.2,80,228.76/- by way of cheque to the complainant but there is no mention of cheque number and at what date cheque has been issued to that extent, the account extract of the accused has not been produced before the Court. He has admitted that he has produced document-S2 and he further admitted that according to S2, the due was Rs.3,77,020/-. He stated that an amount of Rs.1,75,000/- was the previous transaction amount, document-S3 is also produced and he has admitted that he was due in a sum of Rs.1,75,000/-, totally he admitted that as on 22.02.2010, Rs.2,30,065/-was due by him to the complainant. He stated that an amount of Rs.1,75,000/- was the previous transaction amount, document-S3 is also produced and he has admitted that he was due in a sum of Rs.1,75,000/-, totally he admitted that as on 22.02.2010, Rs.2,30,065/-was due by him to the complainant. 10. As such, looking to the aforesaid circumstances, of course, the complainant has not produced any documents with regard to supply of monthly and weekly magazines and periodicals to the accused. But as I have already stated that, the presumptions raised in favour of the complainant, has to be rebutted by the accused by showing that the said documents which were in the custody of the complainant ought to have been produced before the Court. If those documents were not available to the accused and those documents were available with any third party, in such an eventuality, the accused should have issued notice to the complainant to produce those documents. Otherwise, the accused would have led the secondary evidence before the Court by calling upon the third party, i.e., Bank Manager to prove that the accused had deposited the amount of Rs.40,000/- or said to have paid the amount of Rs.2,80,228/- by way of cheque to prove the said transaction that the entire amount which was due to the complainant has been paid by the accused. Therefore, under the above said circumstances, though the complainant has not produced any documents, that itself is not sufficient to say that the accused has rebutted the presumption raised in favour of the complainant in view of the admission of the transactions and the liability. Under the above said circumstances, in my opinion the trial Court has not appreciated the legal points on the basis of the factual aspects on records and wrongly recorded the judgment of acquittal in favour of accused. Therefore, the judgment of the trial Court deserves to be set aside and the appeal deserves to be allowed and accused is liable to be convicted. Hence, the following: ORDER Acting under Section 255 of Cr.P.C., the accused is convicted for the offence punishable under Section 138 of N.I. Act. The accused is sentenced to pay a fine of Rs.4,35,000/-. Out of the same, an amount of Rs.4,25,000/- is ordered to be paid as compensation to the complainant. Remaining fine amount of Rs.10,000/- has to be deposited towards expenses to the State. The accused is sentenced to pay a fine of Rs.4,35,000/-. Out of the same, an amount of Rs.4,25,000/- is ordered to be paid as compensation to the complainant. Remaining fine amount of Rs.10,000/- has to be deposited towards expenses to the State. In default to undergo simple imprisonment for one year. Accordingly, appeal is disposed of.