(Prayer: This Criminal Appeal is filed u/s. 378(4) Cr.P.C., praying to set aside the judgment and order dated 16.11.2016 passed by the XXII A.C.M.M., Bangalore in C.C. No.3286/2016-acquitting the respondent/accused for the offence P/U/S.138 of N.I. Act.)1. The complainant in a Cheque bounce case is in appeal against the judgment of acquittal rendered by the XXII Addl. Chief Metropolitan Magistrate, Bangalore City in C.C. No.3286/2016 dated 16.11.2016.2. The outline facts of the case are as follows:The complainant was doing business in trading flowers under the name and style ‘Flora Venture’. Accused No.2 was the Managing Director of accused No.1 company –M/s. Acqua Packers & Movers Pvt. Ltd., According to the complainant, accused No.2 purchased flowers from the complainant and towards payment of the amount due by him, he issued two Cheques of YES Bank Kasturba Road Branch, bearing Cheque No.274558 dated 01.09.2015 for Rs.3,46,960/- and another Cheque bearing No.274556 dated 01.09.2015 for Rs.5,31,150/-. Further, the accused issued one more Cheque bearing No.234036 dated 27.11.2015 for Rs.4,10,693/-. The said Cheques when presented for encashment were returned as “payment stopped”. The complainant issued a statutory notice. In reply, the accused having put forth untenable reply, the complainant present a complaint under Section 200 of Cr.P.C. read with Section 138 of Negotiable Instruments Act (for short ‘N.I. Act’) seeking prosecution of the respondent/accuse for the above offence.3. The respondent/accused having denied the charge, the complainant examined himself as PW1 and produced in evidence as many as 167 documents marked at Exs.P1 to P167. The Cheques in questions were marked as Exs.P1 to P3; copy of the legal notice as Ex.P7 and the reply issued by the respondent/accused at Ex.P13; various delivery challan/invoices were marked as Exs.P16 to P.166.4. In rebuttal, accused No.2 examined himself as DW1 and relied on Exs.D1 to D11. Exs.D1, D2 and D3 are the copies of Gmail exchanged between the parties; Exs.D4 to D6 are the Debit vouchers; Ex.P8 is the Police Complaint dated 13.07.2016; Ex.D9 is the bunch of 21 Bills; Ex.D10 is the letter written by the accused to the Banker to stop payment in respect of Cheque bearing No.234086 and Ex.D11 is the Statement of Account.5. Considering the oral and documentary evidence produced by the parties, by the impugned judgment, the learned Magistrate dismissed the complaint and consequently acquitted the accused of the alleged offence punishable under Section 138 of N.I. Act. The learned Magistrate was of the opinion that the signature found on Exs.P1 to P3 were in different style and different hand writing and that accused had sufficient funds in his Bank account on the date of dishonour and the Cheques in question were not dishonored due to insufficient fund, but due to payment stopped by the accused and therefore the accused is not liable to answer the charge under Section 138 of N.I. Act.6. The learned counsel appearing for the appellant/complainant has assailed the findings recorded by the learned Magistrate by referring to the statement of accounts – Ex.D11 relied upon by the accused. The learned counsel at the outset pointed out that the said statement on the fact of it discloses that the accused had no funds to his credit either on the date of issuance of the Cheques or subsequent thereto. It is only on the date of the dishonor of the said cheques, a sum of Rs.30,11,619/- was credited to the account of accused No.1 through RTGS. Under the circumstances, the findings of the learned Magistrate is contrary to the material on record. It is submission of the learned counsel that even otherwise the said plea was immaterial for resolution of the controversies. Accused did not dispute the issuance of the Cheques. The documents relied on by the respondent viz., the Gmail exchanged between the parties establishes the case of the complainant that the respondent had issued the cheques in respect of the supplies made to him. In the police complaint lodged on 13.07.2016 at Ex.D8, the accused referred to only one cheque i.e., Ex.P3 and did not dispute issuance of two other cheques. In this complaint he alleged that he requested the complainant to collect new cheques by returning the old two cheques viz., bearing No.274556 and cheque bearing No.274558 after taking into account the NEFT of part dues of Rs.40,000/-. Whereas, contrary to this, in his evidence before the Court, accused took up a plea that the cheques issued by him were given as security, which itself makes it evident that the accused has taken up false plea at every stage of the proceedings to wriggle to the consequences of dishonour of the cheques. Under the said circumstances, the impugned judgment rendered by the learned magistrate and the reasoning assigned in the impugned judgment being contrary to the material on record are liable to be set aside.7. Repelling the above submissions, the learned counsel appearing for respondent/accused would submit that the transaction between the complainant and the accused relate to the period from April 2015 to 25.07.2015. Since the complainant restored to unethical practices and supplied substandard flowers, accused was constrained to issue mandate to the Bank to stop payment of the first two Cheques, viz., Exs.P1 and P2. In this regard, an intimation was given to the complainant as back as on 30.08.2015 as per Ex.D3-Gmail, receipt of which has not been disputed by the complainant. In the said Gmail, the respondent/accused has mentioned the circumstances which promoted him to issue instruction to stop payment of two cheques and under the said circumstances, the complainant was not entitled to present the cheques in question.8. In support of this submission, the learned counsel for the respondent accused has referred to the decision of the Hon’ble Supreme Court of India in the case of ELECTRONICS TRADE & TECHNOLOGY DEVELOPMENT CORPRN. LTD. SECUNDERABAD v. INDIAN TECHNOLOGIES & ENGINEERS (ELECTRONICS) (P) LTD AND ANOTHER, (1996) 2 Supreme Court Cases 739, wherein it is held that “after the cheque is issued to the payee or to the holder in due course and before it is presented for encashment, notice is issued to him not to present the same for encashment and yet the payee or holder in due course presents the cheque to the Bank for payment and when it is returned on instructions, Section 138 does not get attracted.” Further referring to the relevant portion of the evidence of the complainant, learned counsel emphasized that the complainant has failed to establish that the amount of the respective cheques was due and payable by the respondent/accused as on the date of the issuance of the said cheques. In the said circumstance, the learned magistrate has rightly dismissed the complaint and therefore, there is no reason to interfere with the impugned judgment.9. Countering this submission, learned counsel for the appellant/complainant pointed out that the decision in ELECTRONICS TRADE & TECHNOLOGY DEVELOPMENT CORPRN. LTD. SECUNDERABAD v. INDIAN TECHNOLOGIES & ENGINEERS (ELECTRONICS) (P) LTD AND ANOTHER, (1996) 2 SCC 739, has been overruled and the three Judge Bench of the Hon’ble Supreme Court in M/s. Modi Cements Ltd., Vs. Kumar Nandi – AIR 1998 SC 1057 have laid down the law that the aforesaid proposition would run contrary to the purpose and object of Sections 138 and 139 of the Act and thus sought to allow the appeal and convict the respondent/accused.10. I have bestowed my thoughtful consideration to the submissions made at the Bar and have carefully scrutinized the material on record.11. The question that arises for consideration is:“In the facts and circumstances of the case whether the learned Magistrate was justified in dismissing the complaint and acquitting the respondent/accused under Section 138 of N.I. Act.12. The case of the complainant as already narrated above is that in respect of purchase of flowers accused issued the cheques in question, which were dishonoured on account the mandate given by the accused for stop payment. Accused has not disputed the fact that the cheques were signed by the authorized signatory of accused No.1—Company. In Ex.P13-the reply notice issued by the respondent/accused to the legal notice by the complainant at Ex.P7, accused No.2 has admitted the issuance of these cheques, but took up a plea that, in respect of the transaction between the complainant and the accused, the accused has made a payment of Rs.40,000/- through NEFT and requested the complainant to collect new cheques by returning the old two cheques bearing Nos.274556 and 274558. This statement pre-supposes that two Cheques Exs.P1 and P2 were issued by accused No.2. In the said reply, there is no whisper about the third cheque. i.e. Ex.P3. But in the complaint lodged by him before the police, a copy of which is produced by the respondent himself at Ex.D8, he has alleged that since the year 2007, he has been procuring fresh flower and foliages from the complainant and it was a common business practice, that in respect of the orders placed by him, he used to give Cheque/s and later pay the complainant through NEFT or cash and he would take back the cheques. This statement is an unequivocal admission of the practice followed by the parties in their business dealing and the mode in which the payment was made to the complainant. In the said circumstance, retention of three cheques by the complainant leads to the inevitable conclusion that the amount shown in those cheques was still due to the complainant. In other word, there was a legally enforceable debt as on the date of issuance of the cheques Exs.P1 to P3.13. Be that as it may, contrary to the stand taken up in his reply notice as well as in the complaint lodged by him at Ex.D8 dated 13.07.2016, during the course of trial, the accused set up a totally new defence alleging that the cheques in question were issued by him as security for the transaction carried on between him and the complainant. Even this defence is not substantiated by him with any cogent evidence. In appreciating this plea, it is relevant to note that accused No.2 who was examined before the Court as DW-1 asserted that in respect of the transaction carried out between him and the complainant, necessary debit vouchers were available. But no such debit vouchers were produced before the Court to come to the conclusion that the amount of the cheques was repaid by the accused and there was no subsisting liability as on the date of presentation of the cheques. On the other hand, the documents produced before the Court clearly indicate that as and when orders were placed by the accused, supplies were made by the complainant. In the face of these documents and the accused having failed to produce reliable documents in support of the payment towards the flower supplied to him as reflected in Exs.P16 to P166 it has to be held that the cheques in question were issued by the accused towards discharge of the outstanding due by him thereby establishing the ingredients of the offence under Section 1438 of N.I. Act.14. I have also considered the G-mails produced by the accused at Exs.D1 to D3. It is pertinent to note that though in this G-mail, accused called upon the complainant to return two old Cheques on account of payment of Rs.40,000/-, yet in his evidence before the trial Court, the accused has gone to the extent of stating that he did not know the complainant personally and since the complainant was over charging the goods and the supplies were not of standard quality, a mandate was given by him to the Bank to stop the payment of the cheques. In the same breath he contended that the cheques in question were issued as security for the transaction. Bur as already discussed above, accused has failed to substantiate any of these contentions with convincing and reliable evidence. On the other hand, the material on record dearly points out that the cheques in question were issued by the accused towards repayment of the amount due by him in respect of purchases made from the complainant. The said cheques having been dishonoured on account of the mandate given by the accused to stop payment, the accused is liable for the consequences arising out of the dishonour of the Cheques. The learned magistrate has failed to consider the case of the case of the complainant in proper perspective. Even though elaborate evidence was adduced by the complainant and the accused, except narrating the facts of the case learned Magistrate has not analyzed the evidence, instead, has rejected the complaint solely on the ground that the contents of the Cheques are in different style and in different hand writing. The very document produced by accused at Ex.D3 makes it clear that even the amount in the Cheque was written by the accused. This is evident from the e-mail sent by the accused as per Ex.D3, wherein it is stated thus:“However, we have made calls to your office to land line numbers, couple of times, from 30.10.15 to 15.11.15 to come and collect new cheques, against the account statement you submitted to us and also by handing over back the two cheques (one cheque no.274556 and second cheque no.274558) after taking into account the neft of part dues of rs.40,000/- (dt. 24.7.15).Down below it has been written‘It is also brought to our notice, by way of the screen shot attached, that once cheque of 02284600000583234086Rs.4,10,693.00 Issued from our DD account to your firm, was also presented by you for payment.This particular instrument was supposed to be returned back to us, as we had done nefts’ for the above on dates 11.6.15, 23.6.15, 25.6.15, 4.7.15 and 7.7.2015 totalling to rs.410693.00 !!!!!!!!!!!!!!!!!!!”15. From the reading of this mail, it is clear that the amount in the respective cheques were also filled by the respondent/accused. Though it was contended that cheque No.234086 amounting to Rs.4,10,693/- was repaid by the accused, no material has b
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een produced before the Court to show the repayment of the said amount as on the date mentioned in Ex.D3. It is not the case of either of the parties that the contents of the cheques were written in different style and different hand writing. On the other hand in the G-mail exchanged between the parties as well in the reply notice and police complaint referred above, the accused has unequivocally admitted the issuance of the cheques. He has not disputed his signature or hand writing in any one of the above cheques. Accused has failed to produce necessary evidence to rebut the presumption attached to the cheques. Under the said circumstances, the finding recorded by the magistrate court in the impugned judgment and the reasoning assigned by it for acquittal of the accused being opposed to the provisions of Sections 138 and 139 of the N.I. Act and contrary to the oral and documentary evidence produced by the parties, is liable to be set aside.16. Accordingly, the appeal is allowed. The impugned judgment and order dated 16.11.2016 passed by the XXII Addl. Chief Metropolitan Magistrate, Bangalore in C.C.No.3286/2016 is set aside. Accused Nos.1 and 2 are held guilty of the offence punishable under Section 138 of N.I. Act. Accused Nos. 1 and 2 are convicted for the said offence and are directed to pay compensation of Rs.13.00 lakhs. On payment or realization of said amount, a sum of Rs.12,50,000/- shall be paid to the complainant by way of compensation, falling which, the accused No.2 shall undergo simple imprisonment for a period of one year.