Bangalore District Court
M/S. V.R. Agencies vs Mr. Saithan Singh Rathore on 7 September, 2022
IN THE COURT OF XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM34)
PRESENT: Sri PARVEEN A BANKAPUR, B.Com., LLB.
XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 7th day of September, 2022.
C.C.No.50503/2019
COMPLAINANT : M/s. V.R. Agencies,
Rep. by its Proprietor,
Smt. Renuka P.K
W/o. T. Vijay Kumar
Aged 58 years,
Situated at No.122,
Sri Vasavi Temple
Bazaar Street, Halasuru,
Bengaluru - 560 008.
Rep. by its Spa Holder,
T. Vijaya Kumar
S/o. Late T. Gopal Krishna Murthy,
Aged about 63 years,
Address: No.122, Sri Vasavi Temple,
Bazaar Street, Halasuru,
Bengaluru 560 008.
(By M/s.H.M. AssociatesAdvocate)
V/s
ACCUSED : Mr. Saithan Singh Rathore,
S/o. Galapath Singh,
Aged 60 years,
Proprietor,
M/s. Praveen Agencies,
Situated at No.23, Safiur Rahaman
Malik, Firoza Begum Building,
Chowlgalli, Cubbonpet,
Bengaluru 560 002.
(By Mr. Kumarpal Munoyath -
advocates)
1 Date of Commencement 27.09.2018
2 C.C.No.50503/2019
of offence
2 Date of report of offence 07.01.2019
3 Presence of accused
3a. Before the Court 21.12.2019
3b. Released on bail 21.12.2019
4 Name of the Complainant Mr. T. Vijaya Kumar
5 Date of recording of 22.06.2019
evidence
6 Date of closure of 07.04.2022
evidence
7 Offences alleged U/s 138 of the Negotiable Instruments
Act.
8 Opinion of Judge Accused is found guilty.
JUDGEMENT
This is the complaint filed Under Section 200 of Cr.P.C for the offence punishable U/s 138 of Negotiable Instrument Act. Brief version of complainant's case is as under :
2. It is stated by the complainant that the Complainant is a Proprietor in concern and dealing in the business of supply of Duro Cell batteries. Accused has purchased two different batteries i.e., 12 AA DU - ALK and 12 AAA DU ALK from the Complainant worth of Rs.3,59,423/ for which, the Complainant has raised invoice bearing No.VRA/706/201819 dtd.21.9.2018. Towards the purchase of batteries the Accused has issued a Cheque bearing No. 000269 dtd.27.9.2018 drawn on ICICI Bank, OTC Road branch, Bengaluru in favour of Complainant towards the discharge of purchased amount. On the request and instruction of the Accused the Complainant 3 C.C.No.50503/2019 has presented the said Cheque with his banker Syndicate Bank on 29.9.2018, the same is dishonoured with endorsement that "funds insufficient" on 1.10.2018. The Complainant intimated to the Accused through phone for which the Accused requested the Complainant to represent the same once again on 14.11.2018. As per the instruction Complainant once again re presented the said Cheque before his banker on 14.11.2018, the same was again dishonoured with endorsement that "payment stopped by drawer" on 15.11.2018. Thereafter, the Complainant has issued legal notice on 8.11.2018, calling upon the Accused to make payment of said Cheque within 15 days.
The Accused was not received the legal notice and same is returned with shara "refused" on 10.12.2018. Accordingly, the Complainant has filed present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act. Hence, this complaint.
3. After issuance of summons, accused appeared before the court and enlarged himself on bail. Plea was recorded, read over and explained to the accused, who pleads not guilty and claims to be tried. Hence, the case is posted for complainant's evidence.
4 C.C.No.50503/2019
4. The Complainant himself examined as PW1 and got marked documents Ex.P1 to Ex.P.10 and closed his side.
5. Accused was examined U/S 313 of Cr.P.C. Incriminating evidence appearing in the complainant's evidence was read over and explained to the accused who denies the same. The Accused did not choose to lead defence evidence.
6. Heard both counsels at length in great detail.
7. Upon hearing the arguments and on perusal of the materials placed on record, the following points arise for my consideration.
1) Whether complainant proves beyond all reasonable doubts that accused in discharge of legally recoverable debt has issued a Cheque bearing No.000269 dated 27.9.2018 for Rs.3,59,423/ drawn on ICICI Bank, OTC Road branch, Bengaluru in favour of the complainant which came to be dishonoured with an endorsement "FUNDS INSUFFICIENT" on 01.10.2018 and in spite of service of notice accused has not paid the Cheque amount and thereby committed an offence under section 138 of Negotiable Instrument Act?
2) What Order?
8. My findings on the above points is:
Point No.1: In the Affirmative 5 C.C.No.50503/2019 Point No.2: As per final order for the following:
REASONS Point No.1:
9. Existence of legally recoverable debt is a sine qua non for prosecuting the case under Section 138 of Negotiable Instruments Act. For convenient purpose the essential ingredients to constitute offence under section 138 of Negotiable Instrument Act is summarized as below:
(i) That there must be a legally enforceable debt.
(ii) That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes the legally enforceable debt.
(iii) That the cheque so issued had been returned due to insufficiency of funds.
10. It is the core contention of the complainant that the Complainant is a Proprietor concern and doing business of supply of Duro Cell batteries. The Accused has purchased two different batteries i.e.., 12 AA DU ALK and 12 AAA DU ALK worth of Rs.3,59,423/. For the payment of purchased batteries the Complainant has issued Cheque bearing No.000269 dtd.27.9.2018, which presented by the Complainant before his banker, same is dishonoured with endorsement 6 C.C.No.50503/2019 "funds insufficient". On the request of Accused, Complainant once again represented the Cheque before his banker and same has been returned with endorsement that "payment stopped by drawer". Accordingly, the Complainant has filed the present complaint.
11. The Complainant has examined its Spl. Power of Attorney Holder by name T. Vijaya Kumar, who is husband of Proprietor of Complainant. He deposed that he is Spl. Power of Attorney Holder and he know the entire facts. He further deposed that the Accused has purchased two different batteries as above stated and Complainant has raised invoice bearing No.VRA/706/201819 dtd.21.9.2018 along with email bill bearing No.101068499507 dtd.21.9.2018. The Complainant has produced said receipt at Ex.P2 in which, discloses that the Accused has purchased batteries 12 AA DU ALK, quantity about 792 nos. and per battery Rs.264.406 total wroth Rs.2,09,409.552, and another battery 12 AAA DU ALK quantity about 360 and per battery rate Rs.264.406 worth of Rs.95186.160 total bill is Rs.3,59,523/. Ex.P2 is the Tax Invoice. The Complainant has also produced copy of email bill at Ex.P3 which also discloses value of the goods is 7 C.C.No.50503/2019 Rs.3,59,423/. Further, the Complainant has produced Cheque issued by Accused at Ex.P5 in which the signature of the Accused is not denied by the Accused. Ex.P6 is the bank endorsement in which banker has endorsed that "funds insufficient" on 1.10.2018 and Ex.P7 is bank endorsement which is issued by the banker on representing the Cheque once again by the Complainant is endorsed that "payment stopped by drawer" on 15.11.2018. Ex.P8 is the copy of legal notice and Ex.P10 is the postal cover which returned with endorsed that "refused".
12. The Negotiable Instruments Act raises two presumptions. One contained in Section 118 and the other in Sec. 139 thereof. For the sake of convenience Sec 118(1) of the N.I. Act is extracted here below:
118. Presumptions as to negotiable Instruments ---
Until the contrary is proved, the following presumptions shall be made ;--
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.8 C.C.No.50503/2019
1. To (g) . . . . . . . . . . . .
Provided that where the instrument has been obtained from its lawful owner, or from an person in lawful custody thereof, by means of an offence of fraud, or has been obtained from the maker or acceptor thereof by means of an offence of fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him".
Further Section 139 of the Negotiable Instruments Act reads as under:
"139, Presumption in favour of holder. It shall be presumed , unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, of any debt or other liability."
Scope and ambit and function of the presumption U/s 118(a) and Sec 139 of NI Act came to be considered by the Hon'ble Apex Court of Indian in Krishna Janardhan Bhat Vs Dattatraya G.Hegde (2008 AIAR (Criminal 151) The Supreme Court has laid down the law in the following phraseology.
"D Negotiable Instruments Act 1881, Secs 139, 138-- Presumption undersame arises in regard to second aspect of 9 C.C.No.50503/2019 the matter provided under Sec 138--Existence of legally enforceable debt is not a matter of presumption under Sec 139 It merely raises presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability - Merely an application of presumption contemplated under Section 139 of N.I.Act should not lead to injustice or mistaken conviction."
Further, said decision was followed by Hon'ble High Court of Karnataka in Kempanarasimhaiah Vs P.Rangaraju & Others (2008 (5) KCCR 3371). Relevant paragraph of the said judgment reads as under: "12. As to the provisions of Sections 138 of N.I.Act, the following principles emerge from the above observations of Hon'ble Supreme Court at para Nos 21, 23, 25, 26 and 34 of its Judgment in the above said case of Krishna Janardhan Bhat Vs Dattatraya G.Hegde, AIR 2008 SC 1325.
(i) Section 139 of the Act merely raises a presumption that the cheque was issued towards discharge in whole or in part in any debt or other liability, which presupposed legally enforceable debt. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability." ( para 21) 10 C.C.No.50503/2019
(ii) The question as to whether the presumption stood rebutted or not, must be determined keeping in view the other evidences on record. Where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. ( para 26 )
(iii) An accused, for discharging the burden of proof placed upon him under a statute, need not examine himself. He may discharge his burden on the basis of the materials already brought on records ( para 23)
(iv) Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Further more where as prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is " preponderance of probabilities'" ( para 23 & 25)
(v) Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies (para 25)
(vi) Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be deliberately balanced (para 34)
13. Factual matrix of the case is required to be tested on the anvil of principles emerging from the abovereferred decisions.
14. The evidence of PW1 is tested by the Accused by way of his crossexamination. In the crossexamination the PW1 stated that he knows the Accused since from 3 months by way of business transaction. Further, he stated that there is no 11 C.C.No.50503/2019 written agreement with regard to business transaction. It is pertinent to note that the Complainant is seller of batteries and Accused is the customer, who purchased the batteries as above stated from the Complainant.
15. In the crossexamination PW1 stated that on 21.9.2018 the Accused has purchased the materials and on the same day Cheque has been issued by the Accused. He further stated that after confirming the bill, he issued the Cheque. On the suggestion made by the learned Counsel for Accused that the Accused did not know the Kannada and English language. Hence, he did not return the Cheque, the PW1 answered that he does not know who wrote the contents of the Cheque. The crossexamination of the PW1 is reads thus;
"ದದ 21.9.2018 ರರದದ ನನನದ ಆರರರರಪಗರ ಸರಕನದನ ಸರಬರನಜದ ಮನಡದರದ. ಅದರರ ದನ ಆರರರರಪಯದ ಚರಕಕ ಮರಲರ ದದ 27.9.2018 ಎರದದ ನಮರದಸ ನನಗರ ಚರಕಕನದನ ಕರರಟಟದದರದ. ಆರರರರಪಯದ ಚರಕಕನದನ ಭರರ ಮನಡಕರರಟಟದದರದ. ಸರಕನ ಬರಲರಯನದನ ಆರರರರಪಯದ ಕರರಳದದದ, ನನನದ ಹರರಳದನಗ ಅದನದನ ಚರಕಕನ ಮರಲರ ಬರರದದಕರರರಡದ ಬರದದ ನನಗರ ಚರಕಕನದನ ಕರರಟಟದದರದ. ಆರರರರಪಗರ ಕನನಡ ಮತದತ ಇರಗಗರಷಕಬನರದರರ ಇರದವವದರರದ ಚರಕಕನದನ ಅವರದ ಬರರಯಲಲಗ ಎರದರರ ಸನಕಕ ಅವರದ ಯನರ ಕಡರಯರದ ಬರರಸಕರರರಡದಬರದದದರರರರ ಗರರರತಲಗ, ಆದರರ, ಭರರ ಮನಡ ಚರಕಕನದನ ಕರರಟಟದದರದ ಎರದದ ನದಡಯದತನತರರ."12 C.C.No.50503/2019
16. Further, the Accused taken defence that the Accused has not issued questioned Cheque and Complainant has taken Cheque from the office of the Accused by his employee. Further taken defence that on the day of Cheque issued by the Accused, the Accused was not at Bengaluru. He was at Rajasthan one week earlier from the date of issuance of the Cheque. He further, taken defence that the Accused was before going to Rajasthan he has been signed on blank Cheque and kept in his office and Complainant took the said Cheque and misused the same.
17. Since the Accused has taken above said defence but, he has not placed any oral and documentary evidence to prove his contentions. On the other hand, the Complainant has placed documentary and oral evidence which are corroborated with each other.
18. The Accused has not denied his signature on the Cheque and also not denied purchasing of batteries from the Complainant. Hence, it is presumption that Accused has purchased the above said batteries from the Complainant and issued Ex.P5 for purchased amount to the Complainant, which is dishonoured.
13 C.C.No.50503/2019
19. The Complainant has stated supra, to substantiate the claim, has produced Cheque in question at Ex.P5 which is said to have been issued by the Accused in discharge of legal liability. There is no rebuttal evidence to disbelieve the evidence of PW1. Hence, plea of the Complainant has to be believed.
20. The signature of the Accused found in Ex.P5 is not seriously in dispute at all. The Accused has issued above Cheque to the Complainant, it indicates that the Accused has failed to rebut the presumption, which is in favour of Complainant.
21. As appreciated and discussed supra, the Complainant has proved by placing convincing evidence to show that Accused is due of payment of Cheque amount. To repay the liability the Accused had issued Ex.P5 Cheque. Therefore, it has to be presumed that the Cheque in question was issued by the Accused to discharge the legally recoverable debt or liability. The Accused can not place rebuttal evidence so as to show that the Cheque was not issued by him. As appreciated supra, the Accused has failed to put acceptable and satisfactory evidence to probabalise the defence. Therefore, 14 C.C.No.50503/2019 there is a no question of saying that the Cheque was not issued for liability.
22. In the light of discussion herein above, I am of the considered opinion that the Complainant has proved that the Accused has committed the offence punishable u/Sec.138 of N.I. Act.
23. As discussed above, the Complainant has proved her case as to commission of offence punishable u/Sec.138 of N.I. Act by the Accused. Considering the facts and circumstances of the case, nature of the case, year of transaction, nature of instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation and rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R. Vijayan V/s. Baby), etc., this court is of the considered view that it is just and reasonable to impose a fine of Rs.4,48,528/ and out of said amount, a sum of Rs.5,000/ has to be remitted to the State and the remaining amount of Rs.4,43,528/ is to be given to the Complainant as compensation as provided u/Sec.357 (1) of Cr.P.C. and accordingly, the Point No.1 is answered in the Affirmative. 15 C.C.No.50503/2019 Point No.2 :
24. For the discussion made above I proceed to pass following:
:ORDER:
Acting U/S 255(2) of Cr.P.C the accused is convicted for the offence punishable Under Section 138 of Negotiable Instrument Act. Accused is sentenced to pay fine of Rs.4,48,528/ (Rupees Four Lakhs Fortyeight Thousand Five Hundred and Twentyeight only) in default to undergo simple imprisonment for 6 months. Further, it is made clear that out of fine amount of Rs.4,43,528/ (Rupees Four Lakhs Fortythree Thousand Five Hundred and Twenty eight only) is to be paid to the complainant as compensation and Rs.5,000/ is ordered to be remitted to the State.
Bail bonds and surety bonds stand cancelled. Supply the free copy of this judgement to the Accused forthwith.
(Dictated to the stenographer, transcribed by her, corrected by me and then pronounced in the open court on this 7th September, 2022) (PARVEEN A BANKAPUR) XXXIV ACMM, BENGALURU.
16 C.C.No.50503/2019ANNEXURE
2. Witnesses examined on behalf of Complainant:
P.W.1 Mr. T. Vijaya Kumar
2. Documents marked on behalf of complainant:
Ex.P.1 Spl. Power of Attorney Ex.P.2 Invoice Ex.P.3 & eWay bills Ex.P.4 Ex.P.5 Cheque Ex.P.6 & Bank endorsements Ex.P.7 Ex.P.8 Office copy of Legal Notice Ex.P.9 Postal receipt Ex.P.10 Unserved postal cover
3. Witnesses examined on behalf of Accused : NIL
4. Documents marked on behalf of Accused: NIL (PARVEEN A BANKAPUR) XXXIV ACMM, BENGALURU.