Bangalore District Court
M/S Trade Master Import And Export ... vs M/S. Raj Enterprises on 4 April, 2025
KABC0C0095722022
IN THE COURT OF XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE,
MAYO HALL UNIT, BENGALURU (ACJM-34)
PRESENT: Smt.PARVEEN A BANKAPUR,B.Com.LLB.
XXXIV ADDL. CHIEF JUDICIAL MAGISTRATE,
Dated : This the 4th day of April, 2025.
C.C.No.51713/2021
COMPLAINANT :
M/s.Trade Master Import & Export
Pvt. Ltd.,
Office at No. 87, 13th Cross,
Vidyapeeta Road, Kengeri,
Bengaluru - 560 060.
Rep by its Managing Director,
Mr. Ashok Kumar Shetty
S/o. Late Narasimha Shetty
Aged about 61 years
(By Mr.Harish Kumar - Advocate)
V/s
ACCUSED :
M/s. Raj Enterprises
Business Place at No. 414,
Krishnagiri Nilaya, Janata Layout,
Opp Anjaneya Temple,
Gidadakonnenahalli,
Muddyanapalya Main Road,
Bengaluru - 560 091.
Rep by its Proprietor
Mrs. Jayashree Ravi
Aged about 45 years
W/o. M.S. Ravi
Residential address:
R/at No.454, 1st Floor, 9th Block,
Vishveshwarya Layout,
Mallathahalli, Ullal,
Bengaluru - 560 056.
\
(By Mr.Prabhu Gowda V B-Advocate)
1 Date of Commencement 27.10.2020
of offence
2 Date of report of offence 23.12.2020
3
C.C.No.51713/2021
3 Presence of accused
3a. Before the Court 08.12.2022
3b. Released on bail 08.12.2022
4 Name of the Complainant M/s.Trade Master Import & Export Pvt.
Ltd.
5 Date of recording of 09.03.2021
evidence
6 Date of closure of evidence 14.10.2024
7 Offences alleged U/s 138 of the Negotiable Instruments
Act
8 Opinion of the Judge Accused is found guilty
JUDGEMENT
The Private Complaint is filed by the Complainant under Section 200 of Cr.P.C. against the accused alleging that she has committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that the Complainant being the manufacturer and dealers of "Nails". The Accused being one of the private business enterprises/company, Smt. Jayashree Ravi being the proprietor of Raj Enterprises i.e., accused. She introduced one Mr. Syed Sulaimon to the Complainant, who is the wholesale dealers of water proofing materials having its office under the name and style of M/s.S.S Enterprises at plot No.50, LNR Housing Colony, Nagaram Village, Keesara Mandal, RR 4 C.C.No.51713/2021 District, Hyderabad, Telangana. The Accused along with said Mr.Syed Sulaimon approached the Complainant to supply of water proofing materials to the Complainant company and accordingly rate of materials of Rs.5000/- was fixed per square meter per roll and the Complainant agreed to purchase 150 numbers of roll for which proforma invoice was issued on behalf of M/s.SS Enterprises and raised the bill amount of Rs.7.5 lakhs and accordingly, as per the invoice raised the Complainant paid the said bill amount of Rs.7.5 lakhs through bank transfer to M/s.S S Enterprises office at Hyderabad, Telangana, accordingly, Proforma Invoice was issued. The Accused person being the signatory to the Proforma Invoice.
It is further submitted that as per Proforma Invoice agreed to supply 150 numbers of roll of water proofing materials dtd.9.11.20218 but, as agreed in terms of invoice not been supplied the said materials for which the Complainant demanded the Accused to supply of materials or else to return of amount paid by the Complainant as per the invoice, but the Accused postponing the same with the assurance that as early as possible materials will be supplied in communication with Mr.Syed Sulaimon but, the Complainant waited months together but, 5 C.C.No.51713/2021 Accused nor said Mr. Syed Sulaimon were not responding nor refund the amount and on 16.1.2019 the Accused addressed a letter to the Complainant requesting for extension of time for refund of amount of Rs.7.5 lakhs along additional service charges of Rs.50,000/- and the Complainant accepted the request and extended the time but, Accused failed to keep up her promise and again Accused pulling the dates for refund of amount.
It is further submitted by the Complainant that when he repeatedly demanded for return of the said amount, the Accused in the month of March 2020 to discharge the said liability, has issued a Cheque bearing No.479783 dtd.27.10.2020 for Rs.8,00,000/- drawn on Vijaya Bank, Vishweshwaraiah Layout branch, Bengaluru and requested the Complainant to present the same on 27.10.2020.
It is further submitted by the Complainant that he presented the said cheque through his banker i.e., Deutsche Bank, M.G. Road branch, Bengaluru for encashment on 28.10.2020, but, the said Cheque was dishonoured for "funds insufficient" on 28.10.2020. Thereafter, the complainant has got issued demand notice on 3.11.2020 by RPAD to both the business place as well as residential address of the Accused, 6 C.C.No.51713/2021 calling upon the Accused to pay the Cheque amount within 15 days from the date of receipt of notice. The notice sent to the business address was served on the Accused on 7.11.2020 and the notice sent to the residential address was duly served on the Accused on 7.11.2020. Despite receipt of notice, the Accused has neither paid the Cheque amount nor replied the notice.
Hence, the Complainant has filed present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
3. Based on the complaint, the sworn statement affidavit, and documents etc., took cognizance of an offence punishable Under Section 138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against the accused for the offence punishable Under Section 138 of N.I. Act.
4. After issuance of summons, accused appeared before the court and enlarged herself 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.
5. The Complainant himself examined as PW.1 and got marked documents Ex.P.1 to Ex.P.10.
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C.C.No.51713/2021
6. 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. After taking sufficient time and opportunity the Accused failed to lead defence evidence. Hence, the defence evidence taken as nil. However, the Ex.D1 and 2 documents came to be marked through confrontation during the cross-examination of PW1.
7. Heard the learned counsel for Complainant at length in great detail. Since the Accused and learned counsel for Accused remained absent, hence their defence arguments taken as nil. When the case posted for judgement at that time, both the counsels filed their respective written arguments.
The learned Counsel for Complainant has placed the following citations;
1. 2034 (3) KAR LR 35
2. AIR Online 2020 SC 889
3. AIR 2019 SCC 1876
4. Judgment in Cri. No.6036/2018
5. Judgment in Cri.R.P. 238/2019 8 C.C.No.51713/2021
8. 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 have issued a Cheque No.479783 dtd.27.10.2020 for Rs.8,00,000/- drawn on Vijaya Bank, Vishweshwaraiah Layout branch, Bengaluru in favour of the complainant which came to be dishonoured with an endorsement "funds insufficient" and inspite of receipt of notice accused has not paid the Cheque amount and thereby committed an offence under Section 138 of N.I.Act?
2) What Order?
9. My findings on the above points is:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS Point No.1:-
10. 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 N.I.Act is summarized as below:
9
C.C.No.51713/2021
(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 "funds insufficient".
11. It is core contention of the Complainant that, the Complainant being the manufacturer and dealers of "Nails". The Accused being one of the private business enterprises/company, Smt.Jayashree Ravi being the proprietor of Raj Enterprises i.e., accused. She introduced one Mr. Syed Sulaimon to the Complainant, who is the wholesale dealers of water proofing materials having its office under the name and style of M/s.S.S Enterprises. The Accused along with said Mr.Syed Sulaimon approached the Complainant to supply of water proofing materials to the Complainant company and accordingly rate of materials of Rs.5000/- was fixed per square meter per roll and the Complainant agreed to purchase 150 numbers of roll for which proforma invoice was issued on behalf of M/s.SS Enterprises and raised the bill amount of Rs.7.5 lakhs and accordingly, as per the invoice raised, the Complainant paid the said bill amount of Rs.7.5 lakhs through bank transfer to M/ 10 C.C.No.51713/2021 s.SS Enterprises. Proforma Invoice was issued by the Accused being the signatory to the Proforma Invoice.
12. It is further submitted that as per Proforma Invoice agreed to supply 150 numbers of roll of water proofing materials dtd.9.11.20218 but, as agreed in terms of invoice not been supplied the said materials for which the Complainant demanded the Accused to supply of materials or else to return of amount paid by the Complainant as per the invoice, but the Accused postponing the same with the assurance that as early as possible materials will be supplied in communication with Mr.Syed Sulaimon but, the Complainant waited months together but, Accused nor said Mr. Syed Sulaimon were not responding nor refund the amount and on 16.1.2019 the Accused addressed a letter to the Complainant requesting for extension of time for refund of amount of Rs.7.5 lakhs along additional service charges of Rs.50,000/- and the Complainant accepted the request and extended the time but, Accused failed to keep up her promise and again Accused pulling the dates for refund of amount. It is further submitted by the Complainant that when he repeatedly demanded for return of the said amount, the Accused in the month of March 2020 to discharge the said liability, has issued a 11 C.C.No.51713/2021 Cheque bearing No.479783 dtd.27.10.2020 for Rs.8,00,000/- drawn on Vijaya Bank, Vishweshwaraiah Layout branch, Bengaluru and requested the Complainant to present the same on 27.10.2020, which was dishonoured for "funds insufficient"
on 28.10.2020 on its presentation. Thereafter, the complainant has got issued demand notice on 3.11.2020 by RPAD to both the business place as well as residential address of the Accused and both notices were duly served upon the Accused on 7.11.2020. Despite receipt of notice, the Accused has neither paid the Cheque amount nor replied the notice. Hence, the Complainant has filed present complaint against the Accused for the offence punishable u/Sec.138 of N.I. Act.
13. In order to bring home the guilt of the accused, the Complainant got examined himself as PW1 and reiterated the contents of Complaint and relied Ex.P1 is invoice, Ex.P2 is the letter issued by the Accused to the Complainant, Ex.P3 is the original Cheque No.479783 dtd.27.10.2020, Ex.P4 is the bank endorsement, Ex.P5 is the office copy of legal notice issued by the Complainant to the Accused 3.11.2020, Ex.P6 is the postal receipt, Ex.P7 is the postal acknowledgement, Ex.P8 copy of 12 C.C.No.51713/2021 complaint to the postal department, Ex.P9 is the postal receipt, and Ex.P10 is the postal track.
14. The documents produced by the complainant of course established that the complainant meets out the procedural requirements of Section 138 of Negotiable Instrument Act, but it is to be considered whether all these documents establish the offence committed by the accused.
15. On perusal of the oral and documentary evidence placed by the complainant, it reveals that the present complaint is filed well within time in accordance with the provisions of Negotiable Instruments Act. Moreover, there is no dispute with regard to taking cognizance of the offence punishable under Section 138 of N.I. Act.
16. 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 --- 13
C.C.No.51713/2021 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.
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." 14
C.C.No.51713/2021
17. 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 NIAR (Criminal 151) The Supreme Court has laid down the law in the following phraseology.
"D Negotiable Instruments Act 1881, Secs. 139, 138
--Presumption under-same arises in regard to second aspect of 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."
18. 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 15 C.C.No.51713/2021 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)
(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 16 C.C.No.51713/2021 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)
19. Thus from the observations extracted above, it is clear that presumption Under Section 139 of the N.I,.Act is only to the extent that the cheque was drawn for discharge in full or in part of any debt or other liability and the said presumption do not relate to the existence of legally enforceable debt or liability. Therefore, before drawing the presumption under section 139 of the N.I.Act, it is the duty of the Court to see whether or not the complainant has discharged his initial burden as to existence of legally enforceable debt. No doubt, as per Section 118(a) of the Act, there is a rebuttable presumption that every negotiable instrument, is accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration." 17
C.C.No.51713/2021
20. Factual matrix of the case is required to be tested on the anvil of principles emerging from the above-referred decisions.
21. The defence taken by the Accused is that, the Accused is noway concerned with the alleged transaction between the Complainant and M/s.S.S. Enterprises. It is further defence that the Complainant had transferred the amount to M/s. S.S. Enterprises. The Complainant taking undue advantage of the cheque of the Accused with the Complainant, has filed false complaint against the Accused for causing unlawful loss to the Accused.
22. To substantiate the claim, the Managing Director of the Complainant company examined as PW1. He deposed that, the Complainant company being the manufactures and deals of nails. The Accused being the private business concern and its represented by its proprietor and she well known to the Complainant and his business since from 5 years. It is further deposed that, the Accused is introduced one Mr. Syed Sulaimon to the Complainant, who is wholesale dealers of waterproofing materials and his office name is M/s. S.S. Enterprises. It is 18 C.C.No.51713/2021 further deposed that, the Accused along with the said Mr. Sulaimon approached the Complainant for supply of water proofing materials to the Complainant at the rate of materials was fixed for Rs.5000/- per square meter per roll and Complainant agreed to purchase 150 numbers of roll for which, proforma invoice was issued on behalf of M/s. S.S. Enterprises at Rs.7,50,000/-. It is further deposed that, as per the invoice the Complainant had paid Rs7,50,00/- through bank transfer to M/s. S.S. Enterprises as per Ex.P1. It is further deposed that, the said Ex.P1 was signed by the Accused for supply of 150 numbers of roll on 9.11.2018 and agreed to supply the materials. It is further deposed that, after payment, the Accused has not supplied the materials as agreed by her and postponing the same with an assurance that as early as possible the materials will be supplied in communication with Mr.Sulaimon. But, the Complainant waited months together but, the Accused nor Mr. Sulaimon were not responding and not refund the amount paid by the Complainant. It is further deposed that, on 16.1.2019 the Accused addressed a letter to Complainant and requesting extension of time for refunding of amount along with additional service charge of Rs.50,000/- as per Ex.P2. It is further deposed 19 C.C.No.51713/2021 that, the Complainant accepted the request and extended the time but, the Accused and Mr. Sulaimon were not returned the amount. It is further deposed that, after repeated requests finally the Accused has issued Ex.P3 cheque for Rs.8 lakhs. It is further deposed that, as per the instruction of the Accused, the cheque was presented for encashment on 28.10.2020. It is further deposed that, the said cheque was dishonoured with reason "funds insufficient" as per Ex.P4. It is further deposed that, thereafter the said fact was intimated to the Accused but, she avoiding to meet the Complainant and gave evasive answer. It is further deposed that, thereafter, the Complainant got issued legal notice to the Accused calling upon her to pay the cheque amount as per Ex.P5 in business address and residential address of the Accused. It is further deposed that, both notices were duly served upon the Accused as per Ex.P7 and Ex.P10. It is further deposed that, after receipt of notice neither the Accused paid cheque amount nor replied the notice.
23. Considering the oral and documentary evidence, prima facie presumed that Ex.P3 Cheque was issued by the Accused towards discharge of legally enforceable debt and liability. 20
C.C.No.51713/2021 To rebut the presumption the learned Counsel for accused cross examined the PW1 in full length. In the cross- examination Complainant stated that, Mr.Syed Sulaimon having his main office at Hyderabad and its branch at Bengaluru. It is further stated that the name of the company of Mr.Sulaimon is M/s.S.S.Enterprises. It is further stated that, M/s. S.S.Enterprises is the partner of present Accused. It is further stated that, as per the instruction of the Accused, he transferred amount to M/s. S.S.Enterprises. It is further stated that on 28.6.2018 he raised purchase order first time to the Accused and on the same, he transferred Rs.2 lakhs amount and first order was for Rs.10 lakhs. It is further stated that, the Accused met the Complainant in the month of June 2018. It is denied the suggestion of the learned counsel for Accused that, Mr. Sulaimon and Accused are came to the office of the Complainant. It is further stated that in the month of June 2018 he went to the office of Accused for verifying the materials. It is further stated that, on second time, when the Complainant gone to the office of Accused on 20.6.2018 the Accused and Mr.Sulaimon were in the office and at that time, the agreement executed between himself and Mr. Sulaimon. It is further stated 21 C.C.No.51713/2021 that the Accused is the witness to he said agreement. The said agreement was identified by the Complainant which marked at Ex.D1. In the cross-examination he stated that Rs.7,50,000/- was transferred by him to the account of M/s.S.S. Enterprises. He further stated that as per the instruction of the Accused, he transferred amount to the bank account of M/s. S.S.Enterprises. It is further stated that at the time of transfer of amount, Accused stated that her bank account was blocked, therefore, as per the instruction he transferred amount to M/s. S.S.Enterprises. It is denied by the Complainant that, Mr.Sulaimon and himself were went to the office of Accused and threatened her and forcibly took the cheque from the Accused and filed false complaint against her.
24. On considering the oral and documentary evidence placed by both parties, it is clear that, there is a transaction between Complainant, Accused and M/s. S.S. Enterprises. It is further clear that, the Ex.P3 cheque was issued by the Accused in favour of Complainant. Ex.P3 cheque was issued by the Accused as an authorized signatory of M/s. Raj Enterprises. Further it is not denied that, Ex.P2 letter was issued by the 22 C.C.No.51713/2021 Accused as a proprietor of M/s Raj Enterprises wherein she clearly mentioned that Mr.Syed Sulaiman has sent letter to the Complainant and in said letter he seek extension of time upto 28.1.2019 to settle the Rs.7.5 lakhs along with additional service charge of Rs.50,000/- and this will be last extension of time and in which the Accused stand guaranty. For these words she wrote letter to the Complainant. It is contention of the Complainant that, being a Proprietor of M/s. Raj Enterprises and M/s. S.S. Enterprises she agreed to supply of water proofing materials and Accused herself raised and proforma of invoice as per Ex.P1. Ex.P1is the proforma of Invoice raised by M/. S.S. Enterprises and it is signed by Proprietor of S.S.Enterprises i.e., Accused by name Mrs. Jayashree Ravi. Accused has signed the proforma of invoice of Rs.7.5 lakhs. It is further contention of the Complainant that as per the instruction of the Accused, he transferred Rs.7.5. lakhs amount to the account of S.S. Enterprises. In the cross-examination also PW1 stated that Accused is the partner of S.S. Enterprises and as per the instruction he transferred amount to S.S. Enterprises.
25. On the other hand, the learned counsel for Accused filed written argument by taking contention that, there is no 23 C.C.No.51713/2021 transaction took place between Complainant and Accused. It is further taken contention that, the transaction as stated in the complaint is took place between the Complainant and one Mr. Syed Sulaimon of S.S. Enterprises. Therefore with malafide intention the Complainant has filed the Complainant has filed complaint against the Accused. It is further taken contention that the amount transferred by the Accused is to S.S.Enterprises bank account. Further the material is to be supplied by S.S. Enterprises. Therefore, there is no any transaction between Complainant and Accused. Further it is contention that taking that undue advantage of the cheque of the Accused the Complainant has filed false complaint against the Accused for causing unlawful loss to the Accused. To prove this contention, the Accused not examined herself before the court and also not examined said Mr. Syed Sulaimon. Further Ex.P1 and 2 documents are clearly shows that invoice was raised by the Accused and it signed by the Accused. Further in Ex.P2 Accused agreed and guaranteed for the refund of Rs.7.5 lakhs amount which transferred by the Complainant. Therefore, it presumed that Ex.P3 cheque was issued by the Accused towards discharge of legally enforceable liability. The learned counsel for 24 C.C.No.51713/2021 Complainant relied on AIR Online 2020 SC 889 in the case of APS Forex Services Pvt. Ltd., V/s. Shakti International Fashions Linkers & Others wherein the Hon'ble Apex Court held that;
"Accused admitted issuance of cheque and his signature. Cheque in question issued for second time, after earlier cheques were dishonoured - Even some amount was due and payable - To rebut presumption Accused was required to lead evidence that full amount due and payable to Complainant has been paid - No such evidence led by Accused - Defence by Accused that cheques were given by way of security is not believable in absence of further evidence to rebut presumption - Courts erred is not properly appreciating and considering the presumption in favour of Complainant that there exists legally enforceable debt or liability - Acquittal set aside."
26. Further, the learned counsel for Complainant relied on judgment of Hon'ble High Court of Punjab and Hariyana in Crm-M-6036/2018 in the case of Suman Devi V/s. Chhatarpal wherein the Hon'ble High Court held that;
"Be that as it may, amendment for assignment of the proprietorship firm along side the present petitioner, who is the sole proprietor of the firm, cannot 25 C.C.No.51713/2021 be said by any stretch of imagination to cause any prejudice to her, in view of the exposition of law as settled in Raghulakshminarayana and M.M. Lal, wherein it was held that in the case of a proprietorship concern, only the proprietor can be held liable u/sec.138 of N.I.Act as the proprietorship concern and the proprietor are not one and the same. A sole proprietorship has no separate legal identity and in fact is a business in the name of the sole proprietor. Sec.141 of N.I Act does not cover within its ambit, the proprietary concern, is not being a juristic person so as to attract the concept of vicarious liability."
27. As above discussion, 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 place rebuttal evidence so as to show that the cheque was not issued for consideration. As appreciated supra, accused has failed to put acceptable and satisfactory evidence to probabilise the defence. Therefore, there is no question of saying that the cheque was not issued for liability. Therefore, complainant has discharged his initial onus laid on him. When he has discharged his initial onus, it raises presumption U/s 118(a) and 139 of 26 C.C.No.51713/2021 Negotiable Instruments Act. Accused has failed to rebut the presumption either in cross-examining PW-1 or in her evidence.
28. So, far as sentence and compensation is concern, an offence punishable under Section 138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principle of law with facts and circumstances of the case, therefore considering the nature of transaction, duration of pendency, litigation expenses and as per the order of Hon'ble Appellate Court, I am opinion that, if sentence of fine of Rs.10,06,400/- (Rupees Ten Lakhs Six Thousand and Four Hundred only) is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.10,06,400/- (Rupees Ten Lakhs Six Thousand and Four Hundred only), out of that, the complainant is entitled for sum Rs.10,01,400/- (Rupees Ten Lakhs One Thousand and Four Hundred only) as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/-, is to be appropriated to the state, in case of default the accused shall undergo simple imprisonment for a period of 6 months. Accordingly, the Point No.1 is answered in Affirmative.
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C.C.No.51713/2021
29. POINT No.2: In view of discussion held in Point No.1, I proceed to pass the 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.10,06,400/- (Rupees Ten Lakhs Six Thousand and Four Hundred only) in default to undergo simple imprisonment for 6 months. Further, it is made clear that out of fine amount, Rs.10,01,400/-
(Rupees Ten Lakhs One Thousand and Four Hundred only) is to be paid to the complainant as compensation as per the provision U/Sec.357(1) of Cr.P.C. and Rs.5,000/- is ordered to be remitted to the State.
Bail bond stands 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 4th April, 2025) (PARVEEN A BANKAPUR) XXXIV ACJM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. Ashok Kumar Shetty
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C.C.No.51713/2021
2. Documents marked on behalf of complainant:
Ex.P.1 Invoice Ex.P.2 Letter Ex.P.3 Cheque Ex.P.4 Bank endorsement Ex.P.5 Office copy of legal notice Ex.P.6 Postal receipt Ex.P.7 Postal acknowledgement Ex.P.8 Letter addressed to the post office Ex.P.9 Postal receipt Ex.P.10 Postal track
3. Witnesses examined on behalf of Accused: NIL
4. Documents marked on behalf of Accused:
Ex.D.1 Certified copy of Memorandum of Understanding Ex.D.2 Bank statement (PARVEEN A BANKAPUR) XXXIV ACJM, BENGALURU.