Bangalore District Court
Srivasta Enterprises Pvt. Ltd vs Sri. Kishore Kumar. A on 22 November, 2018
C.C.NO.22760/2017
IN THE COURT OF THE XXII ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
Present: Smt. HEMA PASTAPUR,
B.A., LL.B.,
XXII Addl. Chief Metropolitan Magistrate,
Bengaluru.
Dated this the 22nd day of November 2018
C.C.No.22760/2017
Judgment under section 355 of Code of Criminal
Procedure
Complainant : Srivasta Enterprises Pvt. Ltd.,
H. O. at No.44/54, 30th cross,
Tilak Nagar, Jayanagar Extesion,
Bengaluru - 41.
Branch at:- Sagr Hospitals Campus,
Kumaraswamy Layout,
Bengaluru - 560 078,
Represented by Authorized Signatory,
Sri Vijaya Kumar, Aged about 34 years,
s/o M. Krishnappa.
(By Shri K. R. Ashok Kumar, Advocate)
Vs
Accused : Sri. Kishore Kumar. A,
s/o Ramachandra,
Proprietor, Kitchen Logic,
No.10/1, Pipe line,
1
C.C.NO.22760/2017
Ragahavendra Layout,
Yeshwanthapur,
Bengaluru - 560 022,
R/a No.20, 1st 'A' main road,
Muthyhalanagar,
Bengaluru - 560 054.
(By Shri Munirathnaiah. M, Advocate)
JUDGMENT
That, the complainant Enterprises has filed the private complaint under section 200 of Code of Criminal Procedure, for taking action against the accused for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the brief facts of the present case are as under:-
1. That, the complainant Enterprises on 24.08.2016 had placed the order to the accused for the supply of work top refrigerator with sink and GN pan, work top refrigerator counter with bend glass and GN Pan, MS Dunnage rack, SS Dunnage rack - 1 and SS Dunnage rack and on 09.09.2016 had placed the order for the supply of milk vessel double jacketed and IPD food service trolly insulated, electrical 2 C.C.NO.22760/2017 operated. That, the complainant Enterprises for the supply of said materials had paid the accused an advance amount of Rs.2,00,000/- through cheques bearing No.000872 dated:-
12.09.2016 for Rs.1,00,000/- and No.000873 for Rs.1,00,000/- drawn on Oriental Bank of Commerce, B/o OPEC - Service branch, Bengaluru, Plot No. C- 4, KHB colony, Bengaluru. That, the accused for receiving the said advance amount had acknowledged the vouchers bearing No.162 and 163 dated:-12.09.2016 and also confirmed the said orders under vide confirmation letter dated:-15.05.2017. That, the accused after receiving the said advance amount and acknowledging the vouchers and issuing the confirmation letter failed to supply the aforesaid materials to the complainant Enterprises and on persistent demands made by the Enterprises he issued in favour of the said Enterprises the two cheques bearing No.592063 dated:-05.06.2017 for Rs.1,00,000/- and 592064 dated:-05.06.2017 for Rs.1,00,000/- drawn on State Bank of India, Dollar colony, New BEL road, Rajamahal Vilas II stage, Bengaluru. That, the complainant Enterprises had presented the said cheques for 3 C.C.NO.22760/2017 encashment in Oriental Bank of Commerce, KHB colony, Bengaluru and on 11.07.2017 and 27.07.2017 the same were returned with the sharas as "Account closed" and ''Refer to drawer". That, the complainant Enterprises for aforesaid acts of the accused on 02.08.2017 had issued legal notice to him and on 08.08.2017 the said notice was returned with the shara as ''No such Firm or Person''. That, for all aforesaid reasons the complainant Enterprises has constrained to knock the doors of justice.
2. That, on complaint being lodged by the complainant Enterprises this Court registered the case in concerned register and took the cognizance for the offence punishable under section 138 of the Negotiable Instruments Act and thereafter, recorded the sworn statement of the authorized signatory of the complainant Enterprises and after satisfying with the materials placed on record registered the case against the accused in Register No. III and issued summons to him. That, the accused in pursuance of said summons appeared before this Court through his learned counsel and he was enlarged on bail. That, the substance of accusation of 4 C.C.NO.22760/2017 the accused has recorded and read over him in language known to him and he has not pleaded guilty and claimed to tried. That, after completion of the complainant side evidence the statement of the accused as contemplated under section 313 of the Code of Criminal Procedure, has recorded and read over him and he denied all incriminating evidence appearing against him.
3. That, I have heard the arguments and perused the materials placed on record. That, the accused has filed the written arguments and I have gone through the same. That, the following points arise for My consideration and determination:-
1. Whether the complainant Enterprises has proved that, the accused to discharge his legally enforceable debt had issued in its favour the Cheques bearing No.592063 dated:-
05.06.2017 for Rs.1,00,000/- and 592064 dated:-05.06.2017 for Rs.1,00,000/- drawn on State Bank of India, Dollar colony, New BEL road, Rajamahal Vilas II stage, Bengaluru?
2. Whether the complainant Enterprises has further proved that, the said cheques were dishonoured as "Account closed" 5
C.C.NO.22760/2017 and ''Refer to Drawer" and thereby the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act?
3. Whether the complainant has complied with the provisions of section 138(b) of Negotiable Instruments Act?
4. What order?
4. That, the complainant Enterprises to substantiate its aforesaid contentions has got examined its authorized signatory Shri Vijaya Kumar s/o M. Krishnappa as PW1 and got marked the documents at EXs.P1 to 13(a) and closed its side.
That, the accused to substantiate his contentions has orally deposed himself as DW1 and got marked the documents at EXs.D1 to 3 and closed his side.
5. That, My answer to the aforesaid points are as under:-
Point No.1 :- In the AFFIRMATIVE Point No.2 :- In the AFFIRMATIVE Point No.3 :- In the AFFIRMATIVE Point No.4:- As per the final order for the following:- 6
C.C.NO.22760/2017 REASONS
6. Point No.1:- It is specific contention of the complainant Enterprises that on 24.08.2016 it had placed the order to the accused for the supply of work top refrigerator with sink and GN pan, work top refrigerator counter with bend glass and GN Pan, MS Dunnage rack, SS Dunnage rack - 1 and SS Dunnage rack and on 09.09.2016 had placed the order for the supply of milk vessel double jacketed and IPD food service trolly insulated, electrical operated. That, the complainant Enterprises has further contended that for the supply of said materials the Enterprises had paid the accused an advance amount of Rs.2,00,000/- through cheques bearing No.000872 dated:-12.09.2016 for Rs.1,00,000/- and No.000873 for Rs.1,00,000/- drawn on Oriental Bank of Commerce, B/o OPEC - Service branch, Bengaluru, Plot No. C- 4, KHB colony, Bengaluru and the accused for receiving the said advance amount had acknowledged the vouchers bearing No.162 and 163 dated:-
12.09.2016 and also confirmed the said orders under vide confirmation letter dated:-15.05.2017. That, the said 7 C.C.NO.22760/2017 Enterprises has further contended that the accused after receiving the said advance amount and acknowledging the vouchers and issuing the confirmation letter failed to supply the aforesaid materials to the Enterprises and on persistent demands made by the Enterprises he issued in favour of the Enterprises the two cheques bearing No.592063 dated:-
05.06.2017 for Rs.1,00,000/- EX.P2 and 592064 dated:- 05.06.2017 for Rs.1,00,000/- EX.P4 drawn on State Bank of India, Dollar colony, New BEL road, Rajamahal Vilas II stage, Bengaluru.
7. It is pertinent to note here that, the complainant Enterprises has placed its reliance on following decisions:-
1. Syndicate Bank -vs- R. Veeranna and others, reported in AIR 2003 SC 2122 wherein it has held that the Limitation Act, 1963 - Section 18 -
Acknowledgement of debt - Limitation - Unqualified acknowledgement of liability by a party not only saves the period of limitation but also gives a cause of action to plaintiff to base its claim. 8
C.C.NO.22760/2017
2. M/s. Meters and Instruments Private Limited and anr. -vs- Kanchan Mehta, reported in AIR 2017 Supreme Court 4594 wherein it has held that offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under section 139 but the standard of such proof is ''preponderance of probabilities''.
3. Kishan Rao -vs- Shankargouda, reported in AIR 2018 Supreme Court 3173 wherein it has held that section 139 of the Act is of course in the nature of a rebuttal presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant.
4. T. P. Murugan (Dead) Thr. Lrs. -vs- Bojan and Posa Nadhi Rep. Thr. POA Holder, T. P. Murgan -vs- Bojan, reported in AIR 2018 Supreme Court 3601 wherein it has held that the accused admits his signature on cheques and pronote, presumption under S.139 would 9 C.C.NO.22760/2017 operate against him. That, the complainant proves the existence of legally recoverable debt and issuance of cheques towards discharge of such debt, conviction is proper.
5. Nithyanand Mahadev Bhat -vs- Manoj Vinayak Pandit, reported in 2018 (3) AKR 110 wherein it has held that in absence of any material to show that the accused at the time of availing the loan left the cheque in question with the complainant has no legs to stand.
8. It is pertinent to note here that, the accused in his examination - in - chief and in cross - examination of the PW1 has taken a specific defenses that as he failed to supply the materials to Srivasta Enterprises they have obtained from him the EXs.P2 and 4 as a security and later on, though, he returned the amount to them but, they have failed to return his said cheques.
9. It is pertinent to note here that, the in the instant case the accused though, in his examination-in-chief and in his 10 C.C.NO.22760/2017 cross-examination has admitted he has not supplied the materials to the complainant Enterprises but, in cross - examination of the PW1 has taken a defense that he had not received any orders from the said Enterprises. It is pertinent to note here that, the PW1 to substantiate that the Enterprises had placed the orders to accused has got marked the Purchase orders dated:-24.08.2016 and 09.09.2016 at EXs.P9 and 10. It is pertinent to note here that, the PW1 has further got marked the Vouchers bearing No.162 and 163 dated:-12.09.2016 at EXs.P11 and 12. It is pertinent to note here that, the accused in cross - examination has admitted that he has signed on EXs.P9 to
12. It is significant to note here that, the accused has also admitted his signature on EX.P13 - the Confirmation letter.
It is pertinent to note here that, in present case the accused has taken a defenses that the complainant Enterprises had obtained from him the EXs.P2 and 4 as a security and though, he paid the amount to the said Enterprises but, the said Enterprises failed to return him the EXs.P2 and 4. It is pertinent to note here that, the accused 11 C.C.NO.22760/2017 has not produced before the Court any document to substantiate that he had retuned the amount to the said Enterprises. It is significant to note here that, a mere plausible explanation is not sufficient for rebuttal evidence, but, the proof of explanation is necessary. It is pertinent to note here that, in absence of any proof of explanation the contention of the accused that he had returned the said amount to the complainant Enterprises cannot be believed and accepted.
It is pertinent to note here that, the accused has not produced before the Court any document to show that he had issued in favour of the complainant Enterprises the EXs.P2 and 4 as a security. It is pertinent to note here that, in absence of any proof of explanation the contention of the accused that he had issued the EX.P2 and 4 in favour of the said Enterprises as a security cannot be believed and accepted.
10. It is pertinent to note here that, at this juncture I have gone through explanation appended to the section 138 12 C.C.NO.22760/2017 of the Negotiable Instruments Act and which contemplates as under:-
Explanation:- For the purpose of this section, ''debt or other liability'' means a legally enforceable debt or other liability.
It is significant to note here that, the explanation appended to the section 138 of the Negotiable Instruments Act, leaves no manner of doubt that to attract an offence under section 138 of the Negotiable Instruments Act, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is a sine qua non for bringing an offence under section 138 of the Negotiable Instruments Act. It is pertinent to note here that, in present case from entire evidence of the accused it clearly appears that he had issued the EXs.P2 and 4 in favour of the complainant Enterprises to discharge his legally enforceable debt.
It is significant to note here that, the accused has not disputed about the issuance and execution of EXs.P2 and 13 C.C.NO.22760/2017 4 in favour of the said Enterprises and also not disputed his signatures on the same. It is pertinent to note here that, as the signature in the cheque is admitted by the accused, then the presumption envisaged under Section 118 of the Negotiable Instruments Act, can legally be inferred that the cheque was made over to the drawer for consideration on the date which the cheque bears. It is to be noted here that, Section 139 of the Negotiable Instruments Act, enjoins on the Court to presume that the holder of the cheque is received it for discharge of some debt or liability. It is pertinent to note here that, in present case the presumptions envisaged under Sections 118 and 139 of the Negotiable Instruments Act, arises in favour of the complainant Enterprises. It is pertinent to note here that, the complainant Enterprises has convincingly proved that the accused to discharge his legally enforceable debt had issued in its favour the EXs.P2 and 4. In view of the same, point No.1 is answered in the AFFIRMATIVE.
11. Point No.2:- It is specific contention of the complainant Enterprises that, it had presented the EXs.P2 and 4 for 14 C.C.NO.22760/2017 encashment in Oriental Bank of Commerce, KHB colony, Benagluru and on 11.07.2017 and 27.07.2017 the same were returned with the sharas as ''Account closed'' and ''Refer to drawer''.
It is pertinent to note here that, the PW1 to substantiate the aforesaid contentions has got marked the Cheque return memo's issued by the said Bank at EXs.P3 and 5. It is significant to note here that, from perusal of EX.P3 it clearly appears that the EX.P2 was dishonoured as ''Account closed'' and from perusal of EX.P5 it clearly appears that the EX.P4 was dishonoured as ''Refer to drawer''.
12. It is to be noted here that, at this juncture I have gone through the provisions of the section 146 Negotiable Instruments Act and which contemplates as under:-
Bank's slip prima facie evidence of certain facts:-
The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact 15 C.C.NO.22760/2017 of dishonor or such cheque, unless and until such fact is disproved.
It is pertinent to note here that, in the instant case the accused has failed to rebut the presumptions envisaged in section 146 of the Negotiable Instruments Act. It is to be noted here that, in view of My above findings and without much discussion I hold that, the complainant Enterprises has convincingly proved that the accused has committed the offence punishable under section 138 of Negotiable Instruments Act. In view of the same, Point No.2 is answered in the AFFIRMATIVE.
13. Point No.3:- It is pertinent to note here that, the accused has taken a specific defense that he had not received the Legal notice issued by the complainant Enterprises. It is pertinent to note here that, the accused in examination - in - chief has specifically contended that he is residing in the address at No.41, 2 nd main road, Muthyalanagar, MES road, Bengaluru - 54. It is pertinent to note here that, the accused to substantiate that he is residing in said address has got marked his original Aadhaar 16 C.C.NO.22760/2017 card at EX.D1, Receipt issued by Mohan Gas service at EX.D2 and Rental agreement dated:-10.12.2014 at EX.D3.
14. It is pertinent to note here that, the accused has placed his reliance on following decision:-
Sivasakthi Agencies -vs- Ajit Constructions, decided in Crl. A. No.645/2015 dated:-19.10.2016 wherein it has held that appellant admits that that the accused had vacated from address found in postal endorsement and the appellant fails to find out the proper address of the accused, then it can be held that the appellant has not fulfilled the requisite ingredients of Section 138 (b) and (c) of Act and no cause of action arises for filing the complaint.
15. It is pertinent to note here that, the complainant Enterprises has specifically contended that on 02.08.2017 it had issued legal notice to the accused and on 08.08.2017 the said notice was returned with the shara as ''No such Firm or Person''.
It is pertinent to note here that, the PW1 to substantiate the aforesaid contentions has got marked the 17 C.C.NO.22760/2017 Legal notice issued to the accused at EX.P6, two Postal receipts at EX.P6(a), Postal acknowledgement at EX.P6(b) and two RPAD's at EXs.P7 and 8.
16. It is pertinent to note here that, the complainant Enterprises has placed its reliance on following decision:-
N. Parmeswaran Unni -vs- G. Kannan and another, reported in (2017) 5 Supreme Court cases wherein it has held that it is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Evidence Act, 1872, that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected.
17. It is pertinent to note here that, the Complainant Enterprises in EX.P7 has mentioned the address of the accused as Proprietor, Kitchen Logic, No.10/1, Pipe line, Ragahavendra Layout, Yeshwanthapur, Bengaluru - 560 022, rep. by its Proprietor Kishore Kumar. A. s/o Ramachandra and in EX.P8 has mentioned address of the 18 C.C.NO.22760/2017 accused as R/at No.20, 1st 'A' main road, Muthyhalanagar, Bengaluru - 560 054.
It is pertinent to note here that, the accused in his cross -examination in page No.3 has specifically deposed in the month of December 2016 he closed his office pertaining to Kitchen logic. It is pertinent to note here that, the accused has not produced before the Court any document substantiate that in the month of December 2016 he closed his said office. It is pertinent to note here that, from the said conduct of the accused an adverse inference can be drawn that he has falsely deposed that in the month of December 2016 he closed his said office. It is significant to note here that, the accused in his cross - examination in page No.3 and 4 has admitted his address mentioned in EX.P7. It is pertinent to note here that, the said admission of the accused clearly reveals that the complainant had dispatched the EX.P7 to the correct address. It is significant to note here that, in view of My above findings and without much discussion I hold that, the complainant Enterprises has complied with the provisions of section 138 (b) of the 19 C.C.NO.22760/2017 Negotiable Instruments Act. In view of the same, point No.3 is answered in the AFFIRMATIVE.
18. Point No.4:- That, as discussed on points No.1 to 3, I proceed to pass the following:-
ORDER That, acting under section 255(2) of Code of Criminal Procedure, the accused is convicted for the offence punishable under section 138 of the Negotiable Instruments Act.
That, the accused shall deposit a fine amount of Rs.2,00,000/- and if he fails to deposit the said fine amount, he shall undergo a simple imprisonment two months.
That, out of total fine amount of Rs.2,00,000/-, Rs.1,98,000/- shall be paid to the complainant as a compensation as provided under section 357(1) of Code of Criminal Procedure and Rs.2,000/- shall be remitted to the State Exchequer.
20
C.C.NO.22760/2017 That, the office is to furnish free copy of this Judgment to the accused forthwith.
(Typed and corrected by me and pronounced in open Court on this the 22 nd day of November 2018) (Hema Pastapur) XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
[[[[ [[ [ [ [ [ ANNEXURE
List of witnesses examined on behalf of the complainant [ PW1 : K. Vijay Kumar s/o M. Krishnappa.
List of documents marked on behalf of the complainant EX.P1 : Authorisation letter;
EXs.P2 and 4 : Original Cheques;
EXs.P2(a) and 4(a) : Signatures of the accused;
EXs.P3 and 5 : Cheque return memo's;
EX.P6 : Legal notice
[ EX.P6(a) : Two Postal receipts and
EX.P6(b) : Postal acknowledgment;
EXs.P7 and 8 : Two RPAD's;
EXs.P9 and 10 : Purchase orders;
EXs.P11 and 12 : Vouchers;
EX.P13 : Copy of Confirmation letter and
EX.P13(a) : Signature of the accused.
21
C.C.NO.22760/2017
List of witnesses examined on behalf of the accused DW1 : Kishore Kumar. A. s/o Ramachandra.
List of documents marked on behalf of the accused EX.D1 : Original Aadhaar card of the accused;
EX.D2 : Receipt issued by Mohan
Gas service and
EX.D3 : Rental agreement.
XXII Addl. Chief Metropolitan Magistrate, Bengaluru.
22 C.C.NO.22760/2017 23