Bangalore District Court
Nagaraj Narendra Kumar vs M/S Cartel Infosystems Private Limited on 24 September, 2024
KABC010154652023
IN THE COURT OF THE LVI ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH 57)
:Present :
Sri. Jai Shankar, B.Sc., LL.M.,
LVI Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 24th Day of September, 2024.
Crl. Appeal No.767/2023
APPELLANT Nagaraj Narendra Kumar
Proprietor of M/s Technics Info
Systems
No.1107, 18th B Main,
5th block, Rajajinagar
Bengaluru 560 010
(By Sri.A.R.N., Advocate)
Vs.
RESPONDENT : M/s Cartel Info systems Private
Limited
having its registered office at
No.48, 1st Floor, 3rd Cross
SBM Colony, Banashankari 1st Stage,
Bengaluru
2 Crl.A.No.767/2023
Rep by its Assistant Manager
(Finance)
and the authorized representative
Mr.Sanjeevaraya H.N.
( By Sri.A.B.P. Advocate )
:JUDGMENT:
This appeal is preferred by the appellant/accused under Section 374(3) of Cr.P.C praying to set aside the judgment and order dated 26.05.2023 passed by the XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No.3132/2021 and to acquit the appellant.
2. The appellant is the accused and the respondent is the complainant before the trial court. The rank of the parties in this appeal hereinafter referred to the same rank as assigned to them by the trial court for the sake of convenience.
3. The brief facts which led to the filing of this appeal are as hereunder: 3 Crl.A.No.767/2023 That the complainant is engaged in the business of providing cost effective solutions in the field of software, hardware, networking and other information technology solutions and services. The accused is the proprietor of M/s Technic Info Systems and he engaged in computer maintenance, systems and peripherals, supply of network maintenance and implementation, email services and all other information technology related services. The accused had approached the complainant for purchase of 120 laptops of the make Dell Latitude 3400 with certain specifications and he purchased the same under 5 purchase orders of which the total value is a sum of Rs.67,16,230/. The complainant also raised tax invoices with regard to the said transaction. In respect of tax invoice No.CISPL/2961/1920 dated 05.11.2019 there was short of payment of Rs.3,27,740/. The total amount due in respect of the other 4 invoices was a sum of Rs.55,26,630/. Towards the discharge of 4 Crl.A.No.767/2023 the said liability, the accused issued a cheque bearing No.007731 dated 11.05.2020 for a sum of Rs.55,35,970/ drawn on Syndicate bank, Malleshwaram 18th Cross Branch, Bengaluru in favour of complainant by adding his own a sum of Rs.9,340/ extra in view of delay in payment. When the said cheque was presented, it was dishonoured for the reason "Funds Insufficient". Then, legal notice dated 21.08.2020 issued to the accused and it was served on 24.08.2020. The accused neither replied to the notice nor paid the cheque amount. Hence, the complaint under Sec.138 of N.I.Act was filed alleging that the accused has committed the offence punishable under Sec.138 of N.I.Act.
4. The learned Magistrate after taking cognizance, secured the presence of the accused and recorded the plea. Accused pleaded not guilty. Thereafter, the trial was held. The Assistant Manager of complainant company got examined as P.W.1 and got marked 8 documents as 5 Crl.A.No.767/2023 Ex.P.1 to 8. Thereafter, the learned Magistrate recorded the statement of accused as is contemplated under Sec.313 of Cr.P.C and he has denied all the incriminating evidence. Then, the accused has examined himself as D.W.1 and has got marked 1 document as Ex.D.1. Thereafter, the trial court after hearing the arguments and after considering the oral and documentary evidence placed on record, passed the judgment dated 26.05.2023 convicting the accused for the offence punishable under Sec.138 of N.I. Act. The trial court has sentenced the accused to pay fine of Rs.55,40,970/. It is further ordered that out of the fine amount a sum of Rs.55,35,970/ shall be paid as compensation to the complainant under section 357(1)(b) of Cr.P.C.
5. Being aggrieved by the said order of conviction passed by the Trial Court, the accused has preferred this appeal. The grounds of appeal urged in the appeal memorandum are as follows: 6 Crl.A.No.767/2023 That the learned Magistrate has committed grave error in law in taking cognizance of the offence and as such the conviction is bad in law. The judgment of sentence passed by the trial court is against law and all probabilities of the case. The trial court misdirected by the respondent came to the wrong conclusion that the accused has committed the offence punishable under Sec.138 of N.I.Act. The trial court had not given sufficient opportunity to the accused to establish his defense and the judgment passed by the trial court is one sided. The defense taken by the accused is no way considered by the trial court. There are number of discrepancies and contract statements made by the complainant before the trial court. Without giving any proper reasons the conviction order has been passed. The complainant has failed to prove that there is legally enforceable debt for which the accused is liable and as such question of convicting the accused does not arise. The learned 7 Crl.A.No.767/2023 Magistrate has come to the wrong conclusion that the cheque was issued in discharge of the liability. The order of the trial court is illegal, arbitrary and without the authority of law. The learned Magistrate has erred in law in accepting and acting upon the evidence of P.W.1 which is being inadmissible. The learned Magistrate failed to observe that the date and figures mentioned in the cheque are of different ink and the said cheque was a blank cheque. The issuance of cheque by the accused is doubtful. There is non compliance of provision of Sec.263SS of Income Tax act and the trial court has not considered the same. On all these grounds, the accused/appellant has prayed to set aside the judgment and sentence passed by the trial court in C.C.No.3132/2021.
6. After filing of this appeal, notice was issued to the respondent and he has appeared through his counsel. Later, the trial court records have been secured 8 Crl.A.No.767/2023 and after that the matter was posted for arguments. I have heard the arguments of both sides and perused the entire materials on record. Now the points that arise for my consideration are as follows:
1. Whether the trial Court has committed an error by holding that the complainant/respondent has proved the guilt of the accused for the offence punishable under section 138 of N.I.Act?
2. Whether the judgment of the trial Court suffers from any illegality or irregularity and as such calls for interference by this Court in this Appeal?
3. What order?
7. Having regard to the arguments heard and the materials on record, I answer above points as hereunder:
Point No.1 : In the Negative
Point No.2 : In the Negative
9 Crl.A.No.767/2023
Point No.3 : As per the final order,
for the following:
REASONS
8. POINTS No.1 & 2: Since these points are interconnected to each other, they are taken together for discussion in order to avoid repetition. The case of the complainant company that the accused had purchased 120 laptops of the make Dell Latitude 3400 for a total value of Rs.67,16,230/ under 5 invoices. In respect of tax invoice No.CISPL/2961/1920 dated 05.11.2019 there was short of payment of Rs.3,27,740/. The total amount due in respect of the other 4 invoices was a sum of Rs.55,26,630/. Towards the discharge of the said liability, the accused issued a cheque for a sum of Rs.55,35,970/ and it was dishonoured for the reason "Funds Insufficient". In spite of issuance of legal notice the accused failed to repay the amount and as he has 10 Crl.A.No.767/2023 committed the offence punishable under Sec.138 of N.I.Act.
9. The Manager of the complainant company has examined himself as P.W.1 and he has reiterated the above facts in his affidavit. He has given the evidence on the strength of the resulution passed by the board as per Ex.P.1. To prove the alleged transaction, he has got marked the invoices as Ex.P.2. He was also got marked original cheque as Ex.P.3 and endorsement of the bank as Ex.P.4. Ex.P.5 is the copy of legal notice, Ex.P.6 is the postal acknowledgment and Ex.P.7 is the postal track report.
10. The accused has taken a defense that the cheque in question was a stale cheque misused by the complainant. The ink of the signature and contents are different and hand writings are also different and a false case has been filed against him. The accused has examined himself as D.W.1 and he has reiterated the 11 Crl.A.No.767/2023 above facts in his examination in chief. He has also got marked ledger account as Ex.D.1. During the cross examination of P.W.1 the accused has taken a contention that the blank cheque given as security has been misused.
11. As such, the case of the complainant company is that the accused had purchased laptops worth of Rs.67,16,230/ and towards the amount due to them he has issued Ex.P.1 cheque. On the other hand, the accused has taken a defense that blank cheque given as security has been misused and a false case is filed against him. The accused has not denied the cheque or the signature. It is well settled principle that once the cheque and the signature is admitted by the accused presumption has to be drawn under Sec. 118 and 139 of N.I.Act that the cheque has been issued towards the discharge of a legally enforceable liability. It is for the 12 Crl.A.No.767/2023 accused to rebut the said presumptions by leading cogent and convincing evidence.
12. In this case, the complainant company has got marked the invoices with regard to the transaction made by the accused with them as Ex.P.2. The accused has not denied the transaction during the cross examination of P.W.1. Even in his examination in chief the accused has not denied the transaction. Ex.P.3 cheque has been drawn for a sum of Rs.55,35,970/. In his examination in chief the accused has stated that he has repaid the entire amount of Rs.55,25,970/ to the complainant. He has also got marked the ledger account of his firm as Ex.D.1. But, the ledger account of his firm does not prove the payment made by him. He has to prove the receipt issued by the complainant or any other documents regarding payment made through cheque, RTGS or cash etc. But, he has not produced any such documents to prove that the entire amount due to the complainant has been paid. 13 Crl.A.No.767/2023 He has taken a defense that the cheque issued as a security for the transaction has been misused. Though, he has stated that when he demanded the complainant to return his cheque after final payment they had told him that it is misplaced and it will be returned soon. If really Ex.P.3 was not returned in spite of his demand, he should have issued notice to the complainant requesting them to return the cheque or he would have lodged complaint to the police. He would have also obtained an acknowledgment regarding non return of the said cheque or regarding missing of the cheque. He would have also issued stop payment instruction to the bank. But, he has not taken any action. This fact creates a serious doubt with regard to the defense taken by the accused.
13. In this case, P.W.1 has clearly stated that Ex.P.3 cheque was issued with respect to the amount due towards the purchase of laptops. He has also got marked the invoices as Ex.P.2. The evidence of P.W.1` is 14 Crl.A.No.767/2023 well supported by the documentary evidence. There is nothing on record to disbelieve the evidence of P.W.1. The accused has failed to rebut the presumptions available in favour of complainant under Sec.118 and 139 of N.I.Act. The more degree of probability is in favour of the complainant. The trial Court has properly scrutinized the oral and documentary evidence on record and has rightly come to the conclusion that the complainant has proved the allegations made in the complaint. The trial court has also properly appreciated the evidence on record and has rightly convicted the accused for the offence punishable under Section 138 of N.I. Act. Even after reappreciation of the entire evidence on record, I do not find any illegality or irregularity committed by the trial court in convicting the appellant / accused. The sentence passed by the trial court is also just and proper. Therefore, the appeal is 15 Crl.A.No.767/2023 devoid of merits and is liable to be dismissed. Hence, points No.1 and 2 are answered in the Negative.
14. Point No.3: In view of my findings on point Nos.1 & 2 above, I proceed to pass the following:
ORDER The appeal preferred by the appellant/accused under Section 374(3) Cr.P.C. is hereby dismissed.
Judgment dated 26.05.2023 passed by the learned XXVIII ACMM in C.C.No.3132/202 is hereby confirmed.
Send back the records to the Trial
Court along with a copy of this
Judgment.
(Dictated to the Stenographer transcribed by her, then corrected and pronounced by me in the open Court on this the 24 th of September, 2024) (Jai Shankar) LVI Addl.City Civil & Sessions Judge, Bengaluru.16 Crl.A.No.767/2023 17 Crl.A.No.767/2023
Judgment pronounced in open Court (Vide separate order) ORDER The appeal preferred by the appellant/accused under Section 374(3) Cr.P.C. is hereby dismissed.
Judgment dated 26.05.2023 passed by the learned XXVIII ACMM in C.C.No.3132/202 is hereby confirmed.
Send back the records to the Trial Court along with a copy of this Judgment.
LVI Addl.City Civil & Sessions Judge, Bengaluru.