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Judgment
Huluvadi G. Ramesh, J.—This appeal is by the complainant assailing the order of XXXVI Addl. Sessions Judge, Bangalore, in Crl.A. No. 615/2008 dated 5.5.2009, in dismissing the complaint and acquitting the accused, while reversing the order passed by the XV Addl. CMM, Bangalore, in convicting the accused for the offence punishable u/s 138 of the Negotiable Instruments Act and directing him to pay an amount of Rs. 440,000/- as compensation, out of which, Rs. 2,000/- was directed to be paid to the state.
According to the complainant, accused being the proprietor of M/s. Roshan Enterprises is said to have purchased cement from the complainant company and towards payment of outstanding dues, issued three cheques, two cheques for Rs. 1,00,000/- each and another cheque for Rs. 1,82,000/- drawn on Canara Bank, Mysore main branch, which on presentation for encashment, came to be dishonoured as funds insufficient and exceeds arrangement. Ultimately, after issuance of legal notice, the complaint came to be filed. The trial Court, after enquiry, based on the cheques issued and also the admitted signatures, has convicted the accused against which, in the appeal preferred, the appellate Court has reversed the finding of the trial Court on the ground that, the trial Court has not taken into consideration the fact that the presumption available u/s 118 and 139 of the Negotiable Instruments Act has been rebutted by the accused. It has also further noted that, the learned Magistrate has taken into consideration the security deposit that was adjusted by the complainant-company as per the letter at Ex.D2. But in Ex.D3 the security deposit is shown as Rs. 5,30,000/, which fact has also been admitted by P.W.1.
Heard.
The lower appellate Court on opining that, there is an admission of the security deposit of Rs. 5,30,000/- and some adjustments have been made, has not verified as to what is the remaining balance to be paid and what is the material produced by both the parties. To examine as to whether the supply of goods and the cheques issued are in consonance with each other and, whether these cheques were issued in connection with the supply of cement against invoices and delivery note or towards a different transaction, the matter could be remitted for fresh consideration, since both the parties would have maintained the accounts in the regular course of business.
Accordingly, appeal is allowed and the impugned orders of both the Courts below are set aside. The matter is remitted to the trial Court for disposal of the same in accordance with law. It is for the Appellant to produce the invoices as well as the delivery note to put forth his claim for the amount due to him as per the cheques issued by the accused and the accused could also produce the materials available with him to show the actual amount due. All the contentions are left open to be urged.
Parties are directed to appear before the trial Court on 10.12.2010. Office to send back the records.