Bangalore District Court
M/S Vaps Technosoft Pvt vs M/S.Saptha Innovations Pvt. Ltd on 15 April, 2023
KABC030036052021
Presented on : 16-01-2021
Registered on : 16-01-2021
Decided on : 15-04-2023
Duration : 2 years, 2 months, 30 days
IN THE COURT OF XXXVIII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present : Sri. P. Shivaraj,
B.Com. LL.B.
XXXVIII A.C.M.M Bengaluru
Dated this the 15th day of April - 2023
C.C. NO : 998/2021
COMPLAINANT: M/s VAPS Technosoft Pvt., Ltd.,
No.58, Old No.20, 1st Main,
KHB Colony, 1st Stage,
Basaveshwaranagar,
Kamakshipalya,
Bengaluru - 560 079.
Rep. By its Manager,
Sri. Govindaiah.
(Rep. By. Sri. P. Shivakumar and another
Advocates)
// VS //
[
ACCUSED: M/s.Saptha Innovations Pvt. Ltd.
Rep. By its Managing Director
Sri.Chandrashekar.S
No.3/2, 6th Main, 19th Cross, Kashi
Mutt Road, Malleshwaram,
Bengaluru560 003
(Rep. By Sri. H.M.Madhusudhana, Advocate)
Offence : U/s/ 138 of N.I Act of 1881.
2 C.C.No.998/2021
Plea of accused : Pleaded not guilty
Final Order : Accused is acquitted
Date of judgment : 15/04/2023
Sd/-
(P. SHIVARAJ)
XXXVIII A.C.M.M.
Bengaluru.
: J U D G E M E N T :
The complainant is a private is a private limited
company, its authorised person Sri. Sri. Govindaiah has
filed the private complaint U/s 200 of Cr.P.C. against the
accused alleging that, accused has committed the
offence punishable under section 138 of Negotiable
Instrument Act, 1881( For short N.I.Act,1881).
2. Complainant case is as follows:
The accused Mr.Chandrashekar is the managing
Director of M/s.Saptagiri Innovations (P) Ltd.
That on 12/4/2019 complainant company has
placed the work order with the accused for the installation
of submersible pumps, control panels and its accessories.
Accused has agreed to provide the good service and
warranty for the water pumps, control panel and its
accessories. Complainant has paid 50 percent amount of
the said work order to the accused. Accused has installed
the water pumps but the said water pumps are not
working automatically and properly, inasmuch accused
3 C.C.No.998/2021
has agreed to return the 50 percent amount received from
the company company. In order to pay the same, accused
has issued the cheque bearing No.009060 dated
07/01/2020 for Rs.1,70,000/ in favour of complainant
company which is drawn on Canara Bank, Bengaluru
Branch.
3. As per the instructions of the accused,
complainant company presented the aforesaid cheque for
encashment through its banker. The aforesaid cheque
was returned dishonoured with an endorsement
"payment stopped by the drawer", to that effect,
complainant company received the cheque return memo
from its banker on 29/2/2020. Complainant company
informed the aforesaid fact to the accused and it has
issued legal notice through Courier to the accused on
27/03/2020, and the said notice was delivered on
27/05/2020. Further, accused failed to repay the cheque
amount. Complainant company alleged that, accused has
intentionally given the instruction of stop payment to his
banker with an intention to dishonour the cheque given
by him to the complainant company. Inasmuch, accused
has committed the offence punishable under section 138
of N.I. Act. On the aforesaid allegations, the complainant
company approached this court and prays this court to
punish the accused and to award the compensation.
4 C.C.No.998/2021
4. After registering the case, Cognizance taken of
the offence punishable U/s 138 of N.I.Act and recorded
the sworn statement of the Authorized Person of the
complainant company. On finding primafacie case,
process was issued to the accused.
5. After service of the summons to the accused,
accused has appeared before the this court through his
counsel, and he got released on bail. In compliance with
provision of section of 207 of Cr.P.C. papers of the
prosecution was supplied to the accused. The substance
of the accusation is readout to him, in the language
known to him, he pleaded not guilty and submitted that,
he is having no defence to make.
6. In order to prove the guilt of the accused, the
authorized person of the complainant company adopted
the evidence adduced by him at presummoning stage as
his examinationinchief and he has relied on 6
documents as per Ex.P.1 to Ex.P.6 and he is fully cross
examined.
7. Accused statement is recorded as per Sec.313 of
Cr.P.C.. He denied the same and submit that, he is
having evidence to lead. Accused examined himself as
DW.1 and examined another witness by name Charan as
DW.2 and got marked 19 documents which are at Ex.D.1
to D.19. DW.1 and DW.2 are fully cross examined.
5 C.C.No.998/2021
8. Both the sides are permitted to file their written
arguments on merits. Counsel appearing for the accused
has filed the written arguments. Complainant has not
chosen to file the written arguments. Hence, their
arguments on merits is taken as not
canvassed/addressed.
I have verified the written arguments filed by the
accused along with the materials available on record.
9. The following points that arise for my
determination.
:P O I N T S:
1. Whether the complainant company
proves that, the accused has committed
the offence punishable U/s 138 of the
N.I Act, as alleged in the Complaint?
2. What Order?
10. After carefully going through the materials
available on record and taking into consideration of facts
and circumstances of the case, my finding to the above
points are as follows:
Point No.1: In the Negative,
Point No.2: As per final order, for the following:
REASONS
11. Point No.1: PW.1 being the authorized person
of the complainant company, he reiterated the complaint
6 C.C.No.998/2021
averments in his sworn statement which is treated as his
examinationinchief affidavit.
12. Ex.P1 is the authorization letter. The recitals
reveals that PW.1 is the authorised person to represent
the complainant company and to depose on its behalf.
The said document is not disputed nor denied by the
accused.
The complainant has relied on the original cheque
as per Ex.P2, cheque return Memo as per Ex.P3,
complainant has issued the mandatory legal notice to the
accused as per Ex.P4 within 30 days from the date of
receipt of cheque return memo as per Ex.P.3. The said
notice is served to the accused as per Ex.P.5 and P.6. The
aforesaid documents establishes that complainant has
complied all the ingredients of Section 138 of N.I.Act.
13. Accused has admitted the issuance of cheque
and his signature thereon, inasmuch the initial statutory
presumption attached to the cheque has to be raised in
favour of complainant company as per Section 118 and
139 of N.I.Act.
14. In order to rebut the initial statutory
presumption attached to the cheque, accused cross
examined the PW.1. In the cross examination, PW.1
admitted that he has not tendered the quotation of the
accused nor he has tendered the work order placed by
his company. He admitted that the cost of the work order
7 C.C.No.998/2021
is for Rs.3,40,000/ and he admitted that he do not know
the exact date on which the complainant company has
paid 50 percent amount of the work order to the accused.
He admitted that he has not paid the remaining 50
percent amount of the work order, as the accused has
not completed the work as per the work order. He
deposed that the defects in the pumps are not informed
to the accused in writing. He admitted that installed
submersible pumps, panel board and accessories are
within complainant company possession. He admitted
that notice is not given to the accused intimating that
installed water pumps are not working properly. He
admitted the work order placed by his company as per
Ex.D.1. He clearly admitted that there is no written
conditions, contemplated under Ex.D.1 to return the 50
percent of the amount of the work order which is paid to
the accused. PW.1 has denied the suggestion in respect
of the email communications made by Sri.Keshava
Murthy with the accused when it is suggested him.
15. DW.1 being the accused in his examinationin
chief, he contended that one Sri.Keshava Murthy, the
staff of the complainant company has obtained the
quotation and revised quotation from him through e
mail. He further contended that at the request of the
complainant company he handed over the cheque in
question and his bank details to the complainant
8 C.C.No.998/2021
company through Sri.Keshavamurthy. He admitted that
he has received Rs.1,70,000/ from the complainant
company on 20/4/2019 and another sum of
Rs.1,36,000/ from the complainant company. He
contended that on 4/5/2019 he has completed the
installation of submersible pumps as per the work order
and he requested the complainant company to pay the
balance work order amount, but the complainant
company has not paid the same, inasmuch the accused
has given stop payment instruction to his banker in
respect of the cheque in question as a precautionary
measure which was issued as security.
16. Further he contended that his team of
technicians has done all the requirements and done the
needful in respect of the functioning of the installed
pumps, up to the satisfaction of the complainant
company and he has given training to the faculty team of
the complainant company for which complainant
company has issued the certificate. He contended that he
has given reply notice, to the notice giving by the
complainant company on 8/5/2020 and it was served to
the complainant company on 13/5/2020. The said fact
is not whispered by the complainant with an intention to
avoid the payment due amount to him. He specifically
contended that he has not committed any breach of
terms and conditions of the work order. In spite of that,
9 C.C.No.998/2021
complainant company has come up with this false case
by misusing the cheque which is given by him for
security purpose. He further contended that as a
precautionary measure he has given stop payment
instruction to his banker and he is not intending to
dishonour the same and he is having sufficient balance
in his bank account.
17. In his cross examination, he clearly deposed
that he has delivered and installed the submersible pump
sets to the complainant company as per the work order.
He deposed that he has issued the cheque in question for
security purpose. He denied the suggestion that Ex.P.2
was issued for the repayment of 50 percent of amount
received from the complainant company. He deposed that
his team of technicians visited the spot and they have
attended the needs of the complainant company. He
deposed that complainant company has sent email
stating that they have received the cheque in question for
security purpose and he deposed that he has issued the
warranty cards for the installed pumps sets and it is
confirmed by Sri.Keshava Murthy in email. He deposed
that complainant company is due to pay Rs.40,000/to
him in respect of the work order.
18. DW.2 Mr.Charan who is working as Sales
Engineer in accused company, in his examinationin
chief he clearly contended that in respect of the work
10 C.C.No.998/2021
order dated 12/4/2019 placed by the complainant
company, he has handed over the cheque in question to
one Sri.Keshava Murthy for security purpose and he has
issued acknowledgement for the same. Further he
contended that he has several email conversation with
the complainant company in respect of the work order.
In his cross examination he clearly deposed that
Ex.P.2 is given for the purpose of security and it was not
given to refund the 50 percent of amount of work order.
He deposed that Ex.P.2 is handed over to Sri.Keshava
Murthy and the said fact is communicated in email as
per Ex.D.13.
19. On careful perusal and evaluation of oral and
documentary evidence placed on record, it is true that
work order as per Ex.D1 is not in dispute and payment
received by the accused i.e., Rs.1,70,000/ and
1,36,000/ is not in dispute. Further, installation of
submersible pumps sets, control boards and its
accessories as per the work order is not disputed. Added
to it, PW.1 has clearly admitted that their company is in
possession of the installed submersible pumps till this
date. Further, the reply notice given by the accused as
per Ex.D.17 and its postal receipt and acknowledgement
as per Ex.D.18 and 19 are not disputed nor denied by the
complainant.
11 C.C.No.998/2021
It is true that complainant company has not
tendered the quotation, revised quotation and the work
order placed before the accused company. Complainant
has not tendered nor whispered the reply notice given by
the accused as per Ex.D.17 and email communications
between them as per Ex.D.2 to 13 and the Invoice raised
by the accused company in the name of complainant
company in respect of the work order as per Ex.D.14.
20.The recitals of Ex.D.13 (email) reveals that
accused has issued the cheque in question as a security
purpose only. The said fact corroborates with the oral
testimony of DW.1 and 2. Nothing is elicited from their
mouth to disprove the contents of Ex.D.13, and to
disprove the invoice as per Ex.D.14 and email
communications between them as per Ex.D.2 to 12.
Furthermore, Ex.D.17 is the reply notice given by the
accused to the complainant company. The contents of the
reply notice corroborates with the oral testimony of Dw.1
and 2 and email communications as per Ex.D.2 to 13.
The aforesaid documents remains unimpeached and un
rebutted and the aforesaid documents fortifies the
probable contention of the accused.
In the cross examination of DW.1 he clearly deposed
that his team of technicians have done all the needful
work for the functioning of the pumps sets and he has
given training to the faculty team of the complainant
12 C.C.No.998/2021
company in respect of the said work order. The aforesaid
contention of the accused corroborates with email
communications and his oral testimony. Nothing is
elicited from the mouth of DW.1and 2 to improbabilise
the same inasmuch the probable contention of the
accused based on the documentary evidence cannot be
brushed aside and it cannot be isolated or ignored.
21. DW.2 in his cross examination has categorically
deposed that cheque in question as per Ex.P.2 is handed
over by him to the complainant company through
Sri.Keshava Murthy for the purpose of security and not
for the purpose of repayment of 50 percent of amount of
work order. The aforesaid specific contention
corroborates with email communications as per Ex.D.13
and same is whispered in the reply notice which is at
Ex.D.17. The aforesaid facts are also deposed by DW.1 in
his cross examination. Complainant has not disputed nor
disproved the probable contention of the accused based
on the documents. Furthermore, Ex.D.15 is the ledger
account of the complainant company maintained by the
accused during the course of its business. The entry
therein corroborates with the contention and oral
testimony of DW.1 and 2. Added to it Ex.D.16 is the
accused company bank account statement, the entry
therein reveals that accused is having sufficient bank
balance. The said fact corroborates with the contention
13 C.C.No.998/2021
of the accused that he has given the instruction of stop
payment to his banker as a precautionary measure and
not with an intention to dishonour the cheque given as
security purpose.
22. Considering the evidence placed on record, this
court has arrived at a firm conclusion based on evidence
that, accused has successfully rebutted the presumption
attached to the cheque by placing probable evidence and
by eliciting material facts from the mouth of PW.1 and he
has probabilise the fact that he has issued the cheque in
question for the security purpose only. Added to it
accused has demonstrated the conduct and approach of
the complainant company which has suppressed the
reply notice given by accused as per Ex.D.17 and not
tendering the copy of Invoice, quotation, revised
quotation and work order. Accused has also established
the fact that the complainant company has not paid the
entire work order amount to him. Complainant has not
taken any lawful action against the accused in respect of
alleged defective installation of submersible pump sets
and the allege defective service in respect of the same. It
shows that accused has complied the work order and it
falsifies the complainant allegation in respect of the
aforesaid fact.
23. Accused has established and probabilised his
defence by tendering probable evidence and by eliciting
14 C.C.No.998/2021
the material facts from the mouth of PW.1 as discussed
above and he has established the fact that he has issued
the cheque in question as a security at the request of the
complainant that to in respect of the work order and not
for the repayment of the amount as alleged by the
complainant.
24. In Sripathy Singh (since dead) through his son
Gaurav Singh /vs/ State of Jharkand and another,
Crl.Appeal No.1269/1270/2021 DD28/10/2021
wherein the Hon'ble Supreme Court of India has
extensively dealt with the concept of cheque issued for
the security purpose for a transaction, wherein the
Hon'ble Supreme Court of India has categorically held
that, if the cheque in question is issued as a security for
a transaction, the payee is precluded from presenting the
cheque for its encashment till the expiry of the
agreement period related to the transaction i.e.,
repayment period. Payee is entitled to present the cheque
for encashment only after the expiration of agreed period
of repayment and not otherwise. In the present case
undoubtedly cheque in question is secured for the
purpose of security for the work order as per Ex.D1 and
the accused has completed the same. Complainant
instead of returning the same, it has come up with this
case.
15 C.C.No.998/2021
25. Considering and looking into the materials put
forth on record as discussed above, this court arrived at
a firm conclusion that, there is no material on record to
disbelieve or discredit the probable defense of the
accused and his oral testimony and documents relied on
by him and up on considering the same as discussed
above, it probabilise the contention/defense of the
accused and it is deserve to be accepted. Accused has
placed sufficient materials on record to convince this
court that, his case is probabilised when it compared to
the case of the complainant. The probabilities placed by
the accused has the capacity to preponder over the case
of the complainant, inasmuch the accused has
successfully rebutted the presumption against him and
he has successfully probabilised his defence and he has
created the doubt about the existence of debt in the mind
of the court, by bringing on record the probable evidence
and by eliciting the material facts from the mouth of PW1
and up on considering the same, this court is of the firm
conclusion that, presumption attached to the cheque in
question which is raised in favour of the complainant is
said to have been rebutted by the accused and he is able
to show the existence of alleged debt is improbable,
doubtful and illegal.
26. When the accused has established and
miprobabilised the existence of debt by putfrothing his
16 C.C.No.998/2021
probable defense and when he dislodge the initial
statuary presumption against him, then the said
presumption will not come to the rescue of the
complainant and it is incumbent on the complainant to
bring on record, independent and positive proof of
existence of debt, to prove his case beyond reasonable
doubt. Apperantly Complainant fails to comply the same
and it fortifies the probable defense/contention of the
accused and falsifies/crumbles the complainant
version/allegations. Apparently complainant failed to
prove his case beyond reasonable doubt.
27. Hence, the accused has been successfully able
to rebut the presumption against him, by bringing the
preponderance of probabilities. On the other hand
complainant has failed to discharge its burden of proof,
so far as the existence of legally enforceable debt is
concern and he could not prove his case beyond
reasonable doubt. Hence with the aforesaid discussion
based on the facts and attending circumstances of the
case and evidence put forth on record, I am answering
this point in the Negative.
28. Point No.2: In view of the reasons and discussion
made above, I proceed to pass the following:
ORDER
Exercising the power conferred u/S. 255(1) of Cr.p.c. accused is acquitted of the 17 C.C.No.998/2021 offence punishable U/s.138 of the Negotiable instrument Act,1881. The bail bond and surety bond of accused shall continue for next 6 months as per Sec.437A of Cr.P.C. (Dictated to the stenographer and transcribed and computerized by her, corrected by me on computer and then pronounced by me in the open court on 15th day of April 2023) Sd/ (P. SHIVARAJ) XXXVIII A.C.M.M, Bengaluru. :ANNEXURES:
1) List of Witnesses Examined on behalf of Complainant:
PW.1 : Sri. Govindaiah.
2) List of exhibits marked on behalf of Complainant:
Ex.P.1 : C/c. of authorization letter Ex.P.2 : Original Cheque.
Ex.P.3 : Cheque return memo. Ex.P.4 : Office copy of the Legal Notice. Ex.P.5,6 : Courier receipt and Tracker.
3) List of Witnesses Examined on behalf of the Accused: DW.1 : Chandrashekar DW.2 : Charan
4) List of exhibits marked on behalf of the Accused: Ex.D.1 : C/work order dt. 12/04/2019 Ex.D.2 to 13 : email copies Ex.D.14 : Invoice.
Ex.D.15 : Ledger account statement of complainant. Ex.D.16 : Canara Bank account Extract. Ex.D.17 : Reply notice given by accused. Ex.D.18,19 : Postal Receipt and acknowledgement.
S d/ (P. SHIVARAJ) XXXVIII A.C.M.M., Bengaluru.
18 C.C.No.998/2021(Judgment pronounced in Open Court vide separate order is enclosed) ORDER Exercising the power conferred u/S. 255(1) of Cr.p.c. accused is acquitted of the offence punishable U/s.138 of the Negotiable instrument Act,1881.
The bail bond and surety bond of accused shall continue for next 6 months as per Sec.437A of Cr.P.C.
(P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.
19 C.C.No.998/2021