Bangalore District Court
Filed Complaint Against The Accused vs Had Availed Complainant'S Services For ... on 29 September, 2016
IN THE COURT OF THE II ADDL. SMALL CAUSES
JUDGE & XVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
DATED THIS THE 29TH DAY OF SEPTEMBER 2016.
PRESENT :
SMT.PANCHAKSHARI M., M.Com.,LL.B.,
II Addl. Small Causes Judge &
XXVIII ACMM, Bengaluru.
CC NO.44331/2010
JUDGMENT U/S 355 OF THE Cr.P.C.1973
1. Sl. No. of the case : C.C. No.44331/2010
2. The date of commission of
the offence : 4.10.2010
3. Name of the Complainant : Absolute Built Concept Pvt.
Ltd., No.152/F, Bhavani Nivas,
4th Main Road, Bikasipura,
Near ISRO Layout,
Bengaluru-560 060.
Reptd.by its Director,
Sri.M.Srinivasa Kumar
(By Sri.Subhas (Patil), Advocate)
4. Name of the Accused : Sri.A.M.Sharathchandra
Director, DUO Infrastructure
Pvt.Ltd., No.28, Ulsoor Road,
Bengaluru-560 042.
(By Sri.C.Rajanna. Advocate)
SCCH.13 2 CC.44331/2010
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instruments
Act
6. Plea of the accused : Pleaded not guilty
his examination
7. Final order : Accused is convicted
8. Date of such order : 29.9.2016
for the following :
JUDGMENT
Complainant filed complaint against the accused under Sec.200 of Cr.P.C. read with Sec.138 & 142 of the Negotiable Instruments Act. It is the contention of the complainant that in the month of February 2009, the accused had availed complainant's services for providing PMC Services for storm water drain project at Madurai city in Tamil Nadu at Rs.120 lakh for packages 4, 5 & 6. The accused had confirmed the entrustment of said work through letter dated: 2.2.2009 followed by agreement. The total cost of the work is Rs.17,86,646/-. To discharge the said liability to the complainant, the accused issued to the complainant three cheques for Rs.5,00,000/- each bearing 2 SCCH.13 3 CC.44331/2010 Nos.770582 dtd: 22.1.2010; No.770583 dtd: 28.1.2010 & No.770584 dtd: 28.1.2010 drawn on Axis Bank Ltd., Bengaluru Main Branch, M.G.Road, Bengaluru. As per the advice of the accused, when the complainant had presented the said cheques for encashment to their bankers, they returned unpaid respectively on 17.7.2010, 22.7.2010 and 22.7.2010 with endorsement 'insufficient funds'. So, the complainant got issued legal notice dated 20.8.2010 demanding the accused to clear the dues within 15 days from the date of receipt of notice. Said notice was served on 23.8.2010. In spite of receipt of said notice, accused had failed and neglected to settle the amount due even after expiry of 15 days from the date of receipt of notice. Hence, this complaint by the complainant-bank for non-payment of disonoured cheque amount.
2. After taking cognizance of the offence, on being served the summons, the accused appeared through his counsel and released on bail. Plea of the accused under Sec.138 of N.I.Act was recorded. Accused pleaded not guilty and claims to be tried.
3 SCCH.13 4 CC.44331/2010
3. The complainant, to prove its case, got examined its Director as PW.1 and got marked Exs.P.1 to P.15 and closed his side. Statement of Accused under Section 313 of Cr.P.C. was recorded. The accused got examined as DW.1.
4. Heard both sides.
5. With these version of pleadings of both the parties, the following points arise for my consideration:
1. Whether the complainant proves that the accused has issued three cheques for Rs.5,00,000/- each bearing Nos.770582 dtd:
22.1.2010; No.770583 dtd: 28.1.2010 & No.770584 dtd: 28.1.2010 drawn on Axis Bank Ltd., Bengaluru Main Branch, M.G.Road, Bengaluru towards discharge of debt due by him to the complainant which came to be returned unpaid as 'insufficient funds' and failed to make payment in spite of receipt of demand notice and committed an offence punishable under Sec.138 of Negotiable Instrument Act?
2. What order?
6. My findings on the above points are as under:
Point No.1: In the affirmative. 4 SCCH.13 5 CC.44331/2010 Point No.2: As per final order for the following:
REASONS
7. Point No.1: The Complainant in the present case is a private limited company represented by its Director Sri.M.Srinivas Kumar and the accused is also a private limited company named as Duo Infrastructure Pvt.Ltd., represented by its Director Sri.A.M.Sharathchandra. It is the contention of the complainant that in the month of February 2009, accused has availed complainant's professional services for providing PMC Services for storm water drain project at Madurai in Tamil Nadu. The accused had confirmed the entrustment of the work to the complainant through letter dated:2.2.2009 by the accused followed by signing the agreement. The total cost of the work is Rs.17,86,646/-. Towards discharge of portion of the said liability, the accused had issued three cheques each for Rs.5,00,000/-, cheaque bearing No.770582 dtd: 22.1.2010; No.770583 dtd: 28.1.2010 & No.770584 dtd: 28.1.2010 drawn on 5 SCCH.13 6 CC.44331/2010 Axis Bank Ltd., Bengaluru Main Branch, M.G.Road, Bengaluru. As per the advice of the accused, when the complainant had presented the said cheques for encashment, they came to be returned unpaid with endorsement 'insufficient funds'. This was intimated to the accused by a notice dated:20.8.2010 through RPAD and UCP and the accused having received the legal notice, except giving false promises, neither sent any reply nor paid the cheque amount to the complainant.
8. The complainant in order to prove its contention, got examined its Director Sri.M.Srinivasa Kumar as PW.1 and in his affidavit filed for examination-in-chief, he has reiterated the contents of the complaint. Further, in support of his contention, he has produced documents which are marked as Ex.P.1 to P.15. Ex.P,1 is the authorization letter, Ex.P.2 is the ledger account extract of the accused, Ex.P.3 to P.5 are the cheques each for Rs.5,00,000/- drawn on Axis Bank Ltd., Ex.P.6 to P.11 are the bank endorsements, Ex.P.12 is the copy of demand notice, Ex.P.13 is the postal receipt, Ex.P.14 is 6 SCCH.13 7 CC.44331/2010 the UCP receipt, Ex.P.15 is the acknowledgement. As per Ex.P.13 to P.14, it is clearly made out that Ex.P.12 legal notice having duly served on the accused as per Ex.P.15 acknowledgement. So, as per the oral and documentary evidence which is placed on record on behalf of the complainant, it clearly makes out that the accused had issued three cheques which are marked as Ex.P.3 to P.5 having signed by the authorized signatory which has to be presumed under Sec.139 of NI Act, that the said cheques are issued towards discharge of debt. In spite of issuing the cheque towards discharge of debt, the accused has not kept sufficient funds in his account to honour the cheque as such, it came to be dishonoured with an endorsement as 'insufficient funds' as per the bank memo which are marked as Ex.P.6 to P.11. Thereafter, the complainant having issued legal notice calling upon the accused to make payment of the dishonoured cheque amount and that having served on the accused, he had not complied with the legal demands nor issued any reply notice to make out his contention.
7 SCCH.13 8 CC.44331/2010
9. The accused Sharathchandra had stepped into the witness box and got examined himself as DW.1 and in his evidence, he has stated that Duo Infrastructure Pvt.Ltd., is a private limited company and transaction had taken place between it and the company of the complainant. It is also stated by him that they had taken the sub-contract to their other company at Madurai. Their work was with regard to storm water drain project. With regard to work assignment, agreement had taken place between it and the company of the complainant, the complainant was to perform the work with the help of the contractors, thereafter, the complainant shall file the entire report with regard to the purchase of materials and also work done. It is also stated by DW.1 that in connection to the work done by the complainant company for Madurai Corporation, they have not received any bills. As such, Madurai Corporation had not paid them the money. Madurai Corporation was supposed to pay crores of rupees for the work. With regard to the disputed cheque, DW.1 has stated that those cheques are issued to the complainant company for purchase of materials. 8 SCCH.13 9 CC.44331/2010 Further, he has stated that the complainant has stated before it that they have purchased the materials and he has given the amount for purchasing the materials. Further, DW.1 has stated that all the three disputed cheques belong to their company. So, from this evidence of DW.1 it is very much clear that the disputed cheques which are marked as Ex.P.3 to P.5 belongs to the accused company and it is issued by the accused to the complainant. In the cross-examination adduced on behalf of complainant, suggestion has been put forward stating that the complainant had given the entire bills and the report with regard to the work done by them but said suggestion is denied by him. Further, DW.1 has denied that the disputed three cheques for total sum of Rs.15,00,000/- is issued towards part payment of the complainant. Further, it is also made out in the cross- examination of DW.1 that there are nearly 10 to 15 cases which are registered against him in connection to dishonour of cheque. He has also stated that he has not issued any notice to Mukhesh and Nagaraj calling upon them to return his cheques. Though he has stated that he 9 SCCH.13 10 CC.44331/2010 has sent mail to the complainant in connection to the request for return of cheque, the said mail copy had not been placed before the court. He has also denied that the accused company is due to the complainant for a sum of Rs.17,86,646/-.
10. From the cross-examination of DW.1, it is further made clear that the accused had issued the disputed cheque to the complainant and though accused had taken the contention that it is not towards any legal debt, it had not taken any steps calling upon the complainant or his men to return the cheque, though it is contended by the accused that the complainant had not complied with the work order of the accused. Now coming to the fact of service of legal notice, DW.1 in page. No.7 of his cross-examination, has clearly admitted that he has been served with the legal notice with regard to dishonour of cheque and he is also aware of the three cheques having got dishonoured. Further, it is also made out that in spite of service of legal notice, the accused had not issued any reply notice denying the legal demand of the complainant. Now, the accused having denied the 10 SCCH.13 11 CC.44331/2010 complainant's contention, that the cheque having issued towards discharge of legal debt, in spite of service of legal notice wherein it is intimated the cheques issued by the accused towards discharge of debt having returned unpaid for insufficient funds, it had not opted to deny the demand of the complainant nor disputed the contention of the complainant. This itself makes out that as accused is due towards payment he had remained quiet in spite of knowing the legal consequences of dishonour of cheque.
11. The counsel on behalf of the complainant had argued stating that cheques in question are issued towards the legal transaction and accused is due for the payment and as such, having issued the cheques, all the three cheques came to be dishonoured for 'insufficient funds' and in spite of service of legal notice, he had not complied the legal demand, as such, the accused is guilty of the offence. As DW.1 has clearly admitted in his cross- examination that the cheque belongs to the accused company and it had been signed and issued to the complainant and in spite of intimation of dishonour of 11 SCCH.13 12 CC.44331/2010 cheque, accused had failed to make payment of the dishonour cheque amount. On the other hand, the counsel on behalf of the accused had argued submitting that notice is not issued to Duo Infrastructure Pvt.Ltd., and the said company had not been made as party. Here in the present case, the accused Sharathchandra being Director of Duo Infrastructure Pvt.Ltd., who had signed the cheque as authorized signatory had been made as party and the accused had not raised any contention stating that the complaint is not maintainable and also that the company is also liable in connection to the cheque. The counsel on behalf of the accused had relied upon the below referred decisions :
1) ILR 2004 Kar. 421
2) 2005 (4) KCCR 2691
3) 2007(4) Crimes 244 (SC)
12. The above decisions are not applicable to the case on hand whereby, in the present case, DW.1 has stated that he had issued the cheque and it had been signed by him. But there is only denial with regard to the 12 SCCH.13 13 CC.44331/2010 fact that he or the company is liable to pay as per the cheque. It is his contention that as the complainant had not given the report of the work having done and also the list of materials purchased, they could not get the payment from Madurai Corporation. Ex.P.2 is the ledger account extract of the accused which makes out the transaction of the complainant with the accused.
13. The counsel on behalf of the complainant had relied on the below referred decisions:
1) AIR 2010 SC 1898
2) 2001 AIR SCW 3961
3) ILR 2008 KAR 3922
4) 2002 Cri.L.J. 4392
5) 2006(3) SCC (Cri.) 30
6) 2004 Cri.L.J.3177
7) 2001 Cri.L.J.4745 In the decision reported in AIR 2010 Supreme Court 1898 in the case of Rangappa vs. Mohan, it is clearly made out the existence of legally recoverable debt or liability is the matter of presumption under Sec.139 of NI Act. In the 13 SCCH.13 14 CC.44331/2010 very same decision it is held, the accused having failed to comply the statutory notice under Sec.138 of NI Act leads to inference that there was merit in complainant's version and it is held that the accused had failed to rebut the presumption by raising probable defence. Even in the present case, in spite of service of legal notice, the accused had not come forward to deny the transaction as urged in the legal notice. So, if at all, the accused is not due to the complainant company, then nothing prevented it to issue any reply notice by making out its contention that in what circumstance the cheque of the accused company had gone to the hands of the complainant.
14. The decision relied upon by the complainant reported in ILR 2008 Kar. 3922 in the case of Suresh Kallappa Makavi vs. Madan Bindurao Desai & another, is also very much applicable to the case on hand wherein it is held, service of notice within the stipulated period, presentation of the complaint within stipulated period and signature on the acknowledgement of service of notice 14 SCCH.13 15 CC.44331/2010 makes out due compliance of provision as contemplated under Sec.138 of NI Act.
15. The complainant having proved that the cheques which are marked as per Ex.P.3 to P.5 having issued by the accused and said cheques came to be issued towards discharge of debt and on presentation of the three cheques came to be dishonoured for 'insufficient funds', in spite of intimation of dishonour of cheque to the accused and the notice having duly served on the accused, he having failed to comply with the legal demand is found guilty of the offence. In the circumstance, I hold the above point in the affirmative.
16. Point No.2: In view of the finding on the point No.1, I proceed to pass following:
ORDER Acting under Sec.255(2) Cr.P.C., the accused is convicted for the offence under Sec.138 of Negotiable Instrument Act.
15 SCCH.13 16 CC.44331/2010
He is sentenced to pay a fine of Rs.15,25,000/- and out of the said fine amount, Rs.15,20,000/- shall be paid as compensation to the complainant as provided under Sec.375 of Cr.P.C., and balance amount shall be remitted to the Government as fine. In default, the accused is liable to undergo simple imprisonment for period of six months.
The bail stands cancelled.
(Dictated to the Stenographer, transcript thereof corrected, signed & pronounced in the open court on this the 29th day of September 2016.) (PANCHAKASHARI M.) II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru.
ANNEXURE LIST OF WITNESS EXAMINED ON BEHALF OF THE COMPLAINANT:
PW1 : M.Srinivasa Kumar LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Work order letter Ex.P.2 : Ledger account Ex.P.3 : Cheque bearing.No.77582 Ex.P.4 : Cheque bearing.No.77583 16 SCCH.13 17 CC.44331/2010 Ex.P.5 : Cheque bearing.No. 77584 Ex.P.3(a) to : Signature of accused 5(a) Ex.P.6 to : Bank endorsement P.11 Ex.P.12 : Copy of demand notice Ex.P.13 : Postal receipt Ex.P.14 : UCP receipt Ex.P.15 : Acknowledgement
LIST OF WITNESS EXAMINED ON BEHALF OF THE DEFENCE:
DW.1 : Sharathchandra LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE:
Nil (PANCHAKASHARI M.) II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru.17 SCCH.13 18 CC.44331/2010
ORDER Acting under Sec.255(2) Cr.P.C., the accused is convicted for the offence under Sec.138 of Negotiable Instrument Act.
He is sentenced to pay a fine of Rs.15,25,000/-
and out of the said fine amount, Rs.15,20,000/- shall be paid as compensation to the complainant as provided under Sec.375 of Cr.P.C., and balance amount shall be remitted to the Government as fine. In default, the accused is liable to undergo simple imprisonment for period of six months.
The bail stands cancelled.
(PANCHAKASHARI M.) II Addl. Small Causes Judge & XXVIII ACMM, Bengaluru.18