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2022 DIGILAW 272 (KAR)

K. Srinivas Reddy v. Yashwanth Enterprises

2022-02-25

RAJENDRA BADAMIKAR

body2022
JUDGMENT Rajendra Badamikar, J. - Though this appeal is listed for admission, with the consent of the learned counsels appearing for the parties on both sides, the same is taken up for final disposal. 2. The appellant/complainant has filed this appeal under Section 378(4) of Criminal Procedure Code, 1973 ('Cr.P.C.' for short), challenging the judgment of acquittal dated 06.08.2018 passed by the Court of LVIII additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru, in CC No.50978/2014, whereby the learned Magistrate has acquitted the accused for the offence punishable under Section 138 of the N.I. act ( 'N.I. act' for short). 3. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court. 4. The brief factual matrix leading to this case are as under:- The complainant is a proprietary firm carrying on business of Civil Contract in the name and style as 'Chandra Kiran Enterprises'. accused No.1 is also a proprietary concern. The accused No.2 in the month of October 2011 approached the complainant and sought for carrying out the work of trenching and ducting at National Highway between Hubli and Belgaum as sub-contract, by assuring the complainant to make necessary payment in respect of execution of the work, after completion of work. It is the further case of the complainant that, it has promptly completed the said work and thereafter submitted Invoice for Rs.8,23,000/- towards the work of trenching and ducting. after receipt of Invoice, the accused has issued a cheque bearing No.467630 dated 10.04.2013 for Rs.3,00,000/- towards part-payment and sought for some further time to pay the balance amount of Rs.5,23,000/-. The complainant has presented the said cheque through his banker on 06.05.2013, but the said cheque was returned with an endorsement 'Funds Insufficient' on 15.05.2013. Even the complainant has personally met the accused and requested him to make the balance payment. But, the accused did not respond and as such, the complainant has got issued a demand legal notice on 07.06.2013. The said notice was duly served on accused on 08.06.2014. But, the accused neither replied the said notice nor paid the cheque amount. Therefore, it is alleged that, accused has committed offence under Section 138 NI act. as such, the complainant has lodged a complaint in this regard. 5. The said notice was duly served on accused on 08.06.2014. But, the accused neither replied the said notice nor paid the cheque amount. Therefore, it is alleged that, accused has committed offence under Section 138 NI act. as such, the complainant has lodged a complaint in this regard. 5. The learned Magistrate has taken cognizance of the alleged offence and after recording sworn statement of the complainant, found that there is material evidence to proceed against the accused and hence the process came to be issued against the accused. The accused appeared before the Court in pursuance of summons and was enlarged on bail. 6. The substance of accusation under Section 138 of the NI act was read-over and explained to the accused. The accused pleaded not guilty and claimed to be tried. The complainant was examined himself as PW.1 and he has also got examined one witness on his behalf as PW.2-Sri.Syed Ismail and he has also placed reliance on Ten documents, marked as Exs.P1 to P10. Exs. D1 and D2 were got marked during cross-examination of PW.1 by way of confrontation. 7. after conclusion of evidence of prosecution, the statement of accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of prosecution. The case of accused is of total denial and he has also got examined himself as DW.1 to substantiate his defences and further, he got marked three more documents as Exs. D3 to D5. 8. after hearing arguments and after perusing the material evidence placed on record, the learned Magistrate has found that the complainant has failed to establish that the cheque (Ex.P2) was issued towards legally enforceable debt and further observed that ingredients of Section 138 of the NI act are not established and as such, he acquitted the accused for the offence under Section 138 of the NI act. Being aggrieved by this judgment of acquittal, the complainant has filed this appeal. 9. Heard the arguments advanced by the learned counsels appearing for appellant and respondent, and also perused the material records of the trial Court. 10. Learned counsel for the appellant would contend that the impugned judgment of acquittal passed by the trial Court is illegal and contrary to law. 9. Heard the arguments advanced by the learned counsels appearing for appellant and respondent, and also perused the material records of the trial Court. 10. Learned counsel for the appellant would contend that the impugned judgment of acquittal passed by the trial Court is illegal and contrary to law. He would also contend that the trial Court has failed to appreciate the oral evidence of PW.1 and PW.2 in proper perspective and has given unnecessary importance to the fact that, Ex.P1 (Invoice) does not contain VaT, CST ad TaN Service Register Numbers, which is not the relevant factor, and that the trial Court has failed to consider that, accused himself has admitted that, he was entrusted with the work of trenching and ducting from Belgaum to Kolhapur. He would also contend that the trial Court has failed to appreciate the oral and documentary evidence in a proper perspective. He would further contend that the trial Court has wrongly observed that the evidence of PW.1 and PW.2 is inconsistent and contrary. He would also contend that the trial Court has failed to notice the fact that the accused has not even bothered to reply the legal notice and an adverse inference is required to be drawn and as such the presumption under Section 139 of the N.I. act ought to have been drawn in his favour and therefore, he would contend that the judgment of acquittal suffers from perversity and illegality and calls for interference by this Court. as such, he would seek for allowing the appeal by setting aside the judgment of acquittal, and sought for convicting the accused/respondent herein. 11. Per contra, the learned counsel for respondent/accused would support the judgment of acquittal passed by the trial Court. He would also contend that the evidence is inconsistent and it is not supported by any documentary evidence regarding accused entrusting sub-contract to the complainant pertaining to work of trenching and ducting from Hubli to Belgaum. He would also contend that the records disclose that the work from Hubli to Belgaum was entrusted to a different firm as admitted by PW.1, which is evident from Ex.D1 and PW.1 does not know anything regarding execution of work, and the evidence of PW.2 is not trust-worthy. He would also contend that the records disclose that the work from Hubli to Belgaum was entrusted to a different firm as admitted by PW.1, which is evident from Ex.D1 and PW.1 does not know anything regarding execution of work, and the evidence of PW.2 is not trust-worthy. Hence, he would contend that the presumption in favour of the complainant is rebutted by placing material evidence and as such, he has sought for dismissal of the appeal. 12. Having heard arguments advanced by the learned counsels appearing on both sides and perusing the records, it is evident that, both complainant and accused are the Proprietary Firms. The complainant claims that, he is carrying on business of Civil Contract Work. It is the case of complainant that, accused No.1 was entrusted with the work of laying ducts from Hubli to Belgaum and accused No.2 given sub-contract to the complainant. However, it is important to note here that, there is absolutely no document or material evidence regarding sub-contract between accused and complainant. There is absolutely no pleading in the complaint regarding terms of the alleged sub-contract. 13. PW.1 was examined, who is the proprietor of the complainant-Firm and he reiterated the complaint allegations. He has placed reliance on Ex.P1 (Invoice) regarding execution of Work Order. But, admittedly the complainant-Firm is a proprietary concern. In that view of the matter, it should be a registered firm. But, on perusal of Invoice (Ex.P1) discloses that, it does not contain CST, TaN or any other registration numbers. Even Ex.P1 (Invoice) is not on the Letter Head of the complainant-Firm. apart from that, on perusal of Ex.P1 (Invoice), it is evident that, it is pertaining to submission of full and final bill for trenching and ducting work on Belgaum Back Bone and it does not refer the work between Belgaum and Hubli. In the cross-examination, PW.1 has stated that, he has done trenching work for about 8 to 9 Kms., but, he is unable to say from which place and till which place the trenching work was executed by the complainant. He pleads ignorance regarding exact work turned-out and simply states that everything is within the knowledge of his supervisor. apart from that, all along it is the claim that the complainant is a Civil Contractor. He pleads ignorance regarding exact work turned-out and simply states that everything is within the knowledge of his supervisor. apart from that, all along it is the claim that the complainant is a Civil Contractor. But, PW.1 in his cross-examination, on Page No.7, in Para-2 has admitted that, he has not obtained any licence of Civil Contract Work. When the complainant has not obtained licence for Civil Contract Work, question of he executing contract work pertaining to trenching work does not arise at all. Even the cross-examination of PW.1 disclose that, he does not know the nature of work. He admits that, in Ex.P1 (Invoice), the date of receipt was also wrongly mentioned and he further admits that, he has not made any attempts to obtain Work Order. He has also admitted Ex.D1 (Work Order) when it was confronted to him. But, on perusal of Ex.D1 (Work Order), it discloses that the work of trenching and ducting from Dharwad to Belgaum was entrusted to one M/s. Fastrack Teleservices situated at Bengaluru. When the work between Dharwad to to Belgaum was entrusted to M/s. Fastract Teleservices and not to the accused/firm, question of accused giving sub-contract in this area to the complainant does not arise at all. 14. In further cross-examination, PW.1 has admitted that, Ex.D2 is the Work Order issued to accused No.1 from Belgaum to Kolhapur. PW.1 does not know whether the licence was obtained from the concerned department for trenching etc. and his evidence disclose that, he do not know anything. Further according to complainant, still there is a due to the tune of Rs.5,23,000/- from accused, but, admits that he has not taken any steps in this regard. Even he pleads ignorance regarding from where he secured materials for executing the work. all along it is pleaded that, sub-contract work was entrusted between Hubli to Belgaum. But, Ex.D1 disclose that the said work between Hubli to Belgaum was not entrusted to accused No.1 and as per Ex.D2, accused No.1 was entrusted with the work from Belgaum to Kolhapur. On the contrary, Ex.P1 (Invoice) itself disclose that trenching and ducting work at Belgaum Back Bone was alleged to have been executed, but not between Hubli to Belgaum. apart from that, when the complainant is not a Civil Contractor, question of it undertaking sub-contract for trenching and ducting does not arise at all. 15. On the contrary, Ex.P1 (Invoice) itself disclose that trenching and ducting work at Belgaum Back Bone was alleged to have been executed, but not between Hubli to Belgaum. apart from that, when the complainant is not a Civil Contractor, question of it undertaking sub-contract for trenching and ducting does not arise at all. 15. The complainant has got examined PW.2-Syed Ismail, who claimed to have worked under the complainant as a Supervisor during the relevant period on a salary of Rs.12,000/- p.m.. But, his evidence disclose that the complainant was given sub-contract of trenching and ducting work between Belgaum and Sankeshwar. He claims that the Manager of accused No.2 has shown the spot, where the work has to be executed. He tried to give an explanation that the complainant has wrongly given evidence of execution between Hubli and Belgaum, as they are on the side of National Highway. But, the said explanation holds no water at all, as it is for the complainant/PW.1 to explain and not PW.2. The complainant all along has specifically asserted that sub-contract between Hubli and Belgaum was entrusted to him. But, PW.2 claims that it was between Belgaum to Sankeshwar. apart from that, Ex.P1 speaks a different story in this regard, as it is pertaining to execution of work at Belgaum Back Bone, but not either between Hubli and Belgaum or Belgaum and Sankeshwar. PW.2 in further cross-examination claimed that he has executed the work between Belgaum and Sankeshwar for 8 to 9 Kms. admittedly, the distance between Belgaum and Sakeshwar is around 50 Kms.. The complainant all along asserted that, all the factual details were within the knowledge of his Supervisor i.e., PW.2. But, PW.2 did not disclose as to where exactly he has executed the work and between which places. He specifically admitted that he has not executed any work between Hubli and Belgaum and if this admission is taken into consideration, then the entire story of the complainant stands falsified. Further, for trenching, certain Lay-out Maps are required to be prepared. But, PW.2 has not done anything. He admits that there are no records regarding payment of wages to labourers, who were engaged in trenching and ducting work. Further, if at all any is work executed, the same is required to be certified and that certification is also not forthcoming. For trenching adjoining Highway, the licence is required from the concerned authorities. He admits that there are no records regarding payment of wages to labourers, who were engaged in trenching and ducting work. Further, if at all any is work executed, the same is required to be certified and that certification is also not forthcoming. For trenching adjoining Highway, the licence is required from the concerned authorities. But, that was also not within the knowledge of PW.2 or PW.1. Hence, their contention regarding execution of sub-contract, holds no water. Even PWs. 1 & 2 do not know as to where exactly the work was executed, as their evidence is inconsistent. 16. as observed above, the alleged Invoice at Ex.P1, cannot be taken into consideration, as it speaks regarding the work executed at Belgaum Back Bone and even it is not in the Letter Head of the complainant-Firm and it also does not bear VaT, CST or any other service registration numbers. Ex.P10 is Income Tax Return, which does not speak regarding any transaction between the complainant and accused. DW.1 has specifically asserted that, his company did not entrust any work to the complainant-Company. It is the case of accused that, the cheque was misplaced by his staff and that has been misused by the complainant and other documents have been manipulated. Though initial presumption is in favour of the complainant in view of admission of signature of accused on the cheque, but the evidence and especially cross-examination of PWs. 1 & 2 clearly establish that they do not know as to where exactly they have executed work and no material pleadings are forthcoming. Hence, by cross-examining PWs. 1 & 2, the accused has rebutted the presumption available in favour of complainant. Even the complainant does not know as to where exactly the work was executed for 8 to 9 Kms., and that was also not pleaded in the complaint. The evidence of PWs. 1 & 2 is inconsistent and contrary to each other. The evidence of the complainant also disclose that no due is pending from the accused in respect of the work from Belgaum to Kolhapur. Even in Invoice-Ex.P1, the seal of the accused-Company is not found and whether the cheque was issued in the capacity of Proprietor or in individual capacity is also not forthcoming. No documents have been produced by the complainant to show that the cheque (Ex.P2) belongs to accused No.1-Firm. Even in Invoice-Ex.P1, the seal of the accused-Company is not found and whether the cheque was issued in the capacity of Proprietor or in individual capacity is also not forthcoming. No documents have been produced by the complainant to show that the cheque (Ex.P2) belongs to accused No.1-Firm. The accused denied his signature on Ex.P1 (Invoice). There is absolutely no agreement between the parties for entrustment of work by accused to complainant by way of sub-contract. Certain terms and conditions ought to been entered into between the parties to fix the rate, payment mode etc., but that is also not forthcoming. Except Ex.P1 (Invoice) and Ex.P2 (Cheque) and other disputed documents, no convincing material evidence is placed by the complainant to substantiate his contention regarding execution of work from Hubli to Belgaum. Though PW.2 has tried to improve his version that it ought to have been between Belgaum to Sankeshwar, but that is not clarified by the complainant. apart from that, as observed above, the allegations are regarding execution of work for 8 to 9 Kms., and between which points this work was executed is also not forthcoming. The transaction appears to be of civil nature and it was tried to be given a criminal colour. 17. The learned Magistrate has considered all these aspects and rightly came to a conclusion that the complainant has failed to establish the guilt of accused for offence under Section 138 of NI act. Hence, after appreciating the oral and documentary evidence in a proper perspective, he has rightly acquitted the accused. Hence, the judgment of acquittal passed by the trial Court does not suffer from any infirmity or illegality so as to call for any interference. Under such circumstances, the appeal is devoid of any merits and needs to be rejected. accordingly, I proceed to pass the following:- ORDER The appeal is dismissed. The judgment of acquittal dated 06.08.2018 passed by the trial Court viz., the Court of LVIII additional Chief Metropolitan Magistrate, Mayo Hall Unit, Bengaluru, in CC No.50978/2019 stands confirmed.