Bangalore District Court
Yeshwanth Kumar Bapu Rajaram vs Redefine Fitness on 17 March, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 17th day of March - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.15538/2015
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Yeshwanth Kumar Bapu Rajaram,
S/o.Rajam Bapu Narayana Rao,
Aged about 29 years,
R/at No.3, 1st Floor,
1st Main, 4-5 Cross,
Hosahalli, Vijayanagar,
Bengaluru-40.
(Rep. by Sri.Sharath S Gowda, Adv.)
V/S
Accused : 1. Redefine Fitness,
Partnership Firm,
Having its office at
No.96, 3rd and 4th Floor,
60 Feet Road, Opp. to Canara Bank,
Next to HP Petrol Station,
Chandra Layout, Vijayanagar,
Bengaluru-40.
Rep. by its Partners.
2. Keerthisagar Gnanashekar,
S/o.Gnanashekar Jaganathareddy
Aged about 27 years,
Partner of Redefine Fitness,
R/at. No.318/18, 1st 'F' Cross,
7th Main, Subbanna Garden,
Vijayanagar, Bengaluru-40.
3. Gnaneshwar Suresh,
S/o.Suresh,
Aged about 32 years,
Judgment 2 C.C.No.15538/2015
Partner of Redefine Fitness,
R/at. No.317/8, 1st 'F' Cross,
7th Main, Subbanna Garden,
Vijayanagar, Bengaluru-40.
(Rep.by Sri.B.K.Ramesh, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused Nos.1 to 3 are
Convicted.
DATE OF ORDER : 17.03.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused Nos.1 to 3 on 18.06.2015 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheques of Rs.50 lakhs.
2. The brief facts of the complainant case is as follows:
The complainant along with one Karthikeyan Dayalan started partnership firm by name 'Redefine Fitness' with the accused Nos.2 and 3 in the name of accused No.1 for the purpose of running the business of Gym.
Judgment 3 C.C.No.15538/2015
The complainant has averred that, after sometime,
complainant along with aforesaid Karthikeyan Dayalan,
expressing their intention to retire from the partnership firm of the accused No.1 with the accused Nos.2 and 3 and issued notice to the continuing partners accused No.2 and 3. Subsequently, with an intention to settle the dues of retiring partners, a settlement deed was entered into on 21.01.2015. Wherein, the complainant and aforesaid Karthikeyan Dayalan agreed to receive sum of Rs.90 lakhs, in lieu of their share, right, title and interest in partnership business including its assets and good will and share of the complainant was ascertained at Rs.50 lakhs.
The complainant has further alleged that, the accused Nos.2 and 3 have jointly issued cheques bearing Nos.000120 and 000121 for sum of Rs.25 lakhs each drawn on HDFC Bank Ltd., Magadi Chord Extension, Vijayanagar Club Road, Bengaluru-40, on their above and on behalf of partnership firm. Both the accused have assured to honour the said cheques on the date of their presentation. The reference of those cheques were also made in settlement deed dated:21.01.2015.
The complainant has further contended that, on 15.04.2015, when complainant has presented the said cheques for Judgment 4 C.C.No.15538/2015 encashment through his banker viz., ICICI Bank, as per endorsement dated:16.04.2015, the said cheques came to be dishonoured for the reasons "Payment Stopped by Drawer" and the said fact were intimated to the accused Nos.2 and 3, they have promised to pay the amount within a week, so far, accused persons have not paid the amount. Therefore, though, it was legally enforceable debt. Hence, without alternative, the complainant got issued legal notice dated:08.05.2015, calling upon accused Nos.2 and 3 to pay the amount covered under the cheques. The said notice was served on them on 12.05.2015, but not replied nor paid the amount covered under the cheques. Though, accused persons were issued cheque to settle the dues payable to the complainant by virtue of settlement deed dated:21.01.2015, they have not paid the amount. Thereby, the accused Nos.1 to 3 are committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, the complaint.
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused Nos.1 to 3 for the alleged offence, got issued process.
Judgment 5 C.C.No.15538/2015
4. In response to the summons, the accused Nos.1 to 3 appeared through their counsel and obtained the bail. As required, complaint copy was supplied to the accused Nos.1 to 3. Thereafter, accusation was read over and explained to them, wherein, they denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P10. The PW.1 was subjected for cross-examination by the advocate for the accused. In the cross-examination of PW.1, accused counsel got confronted four documents and same are marked as Exs.D1 to D4.
6. Thereafter, incriminating evidence made against the accused Nos.1 to 3 was recorded under Section 313 of Cr.P.C, wherein the accused Nos.1 to 3 denied the same and the answer given by there were recorded. In support of the defence, the accused No.2 personally himself as well as on behalf of accused No.3 was examined as DW.1 and also subjected for cross- examination by the advocate for the complainant.
7. Both side counsels have addressed their arguments.
Judgment 6 C.C.No.15538/2015
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the accused Nos.2 and 3 have issued Exs.P1 and P2 cheques of the accused No.1 being continuing partners for liable to pay sum of Rs.50 lakhs, in respect of share and interest of the complainant in the partnership business?
2) Whether the complainant proves beyond the reasonable doubt that, the amount covered under the Exs.P1 and P2 cheques are the existence of legally recoverable debt payable by the accused Nos.1 to 3 to the complainant?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Partly Affirmative Point No.3 : As per final order, for the following:
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
Judgment 7 C.C.No.15538/2015 The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P10, they are:
a) Exs.P1 and P2 are the cheques bearing Nos.000120 and 000121 issued by the accused Nos.1 to 3 for sum of Rs.25 lakhs each dated:21.01.2015, drawn on HDFC Bank, Magadi Chord Extension, Vijayanagar Club Road, Bengaluru.
b) Exs.P1(a) to P2(b) are the alleged signatures of accused Nos.2 and 3.
c) Exs.P3 and P4 are the Bank Memos
dated:16.04.2015.
d) Ex.P5 is the Legal Notice dated:08.05.2015.
e) Exs.P6 to P8 are the Postal Acknowledgment Cards.
f) Ex.P9 is the joint memo dated:11.11.2016 entered into complainant and accused person.
g) Ex.P9(a) is the signature of accused No.3 and
h) Ex.P10 is the certified copy of settlement of partnership deed entered into complainant and accused persons.
11. The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citation and relied upon same, it is;
a) 2012 1 SCC 260
12. In order to prove the defence of the accused Nos.1 to 3, the accused No.2 personally himself as well as on behalf of accused Judgment 8 C.C.No.15538/2015 No.3 was examined as DW.1 and got produced the documents at Exs.D1 to D4. They are:
a) Ex.D1 is the statement of account pertaining to accused No.1 concern for the period from 01.01.2013 to 28.01.2015 issued by HDFC Bank.
b) Ex.D2 is the ITR-V i.e., Indian Income Tax Return Verification Form pertaining to accused No.1 concern for the assessment year 2015-16 and
c) Exs.D3 and D4 are the details of payment on behalf of Redefine Fitness.
The DW.1 was subjected to the cross-examination by the advocate for the complainant.
13. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
14. Advocate for the accused Nos.1 to 3 have cross-examined the PW.1 in detail. Thereafter, whatever the incriminating evidence made against the accused Nos.1 to 3 were read over and explained to accused Nos.1 to 3 through accused No.2 and 3 as required under Section 313 of Cr.P.C., wherein the accused Nos.2 and 3 have denied the same and claimed to have the defence. The accused Nos.2 and 3 have specifically admitted the receipt of legal notice issued by the complainant as per Ex.P5.
Judgment 9 C.C.No.15538/2015
15. Thereafter, to prove the probable defence of the accused, accused No.2 choosen to entered into witness box personally on behalf of accused No.3 and filed affidavit evidence, the same is not opposed by the complainant, hence, the same is received on record on oath and examined the accused No.2 as DW.1. In brief the probable defence of the accused is that:
The accused No.2 is conversant with the facts of the case and he deposed personally as well as on behalf of accused No.3. The accused No.2 has contended that, in the present case as well as C.C.No.15540/2015, the accused No.1 is the company by name Redifine Fitness. The accused Nos.2 and 3 and in this case, the complainant by name Yashwanth Kumar Bapu Rajaram and in C.C.No.15540/2015, the complainant by name Mr.Karthikeyan Dayalan.
The accused No.2 has further contended that, the accused No.1 concern is a partnership firm, wherein, the accused Nos.2 and 3 and the present complainant were partners earlier. As alleged in the complaint and affidavit evidence, Karthikeyan Dayalan was not a partner. When the accused No.1 company was started, its inception, later, he had joined as partner. At present, the concern of accused No.1 is not in existence. The accused Judgment 10 C.C.No.15538/2015 Nos.2, 3 and complainant herein had started the business of accused No.1 company, later, Karthikeyan Dayalan had joined and the complainant in both the separate cases filed against the accused No.1 and they have asserted in their cross, they have not invested Rs.43 lakhs. By Yashwanth Kumar Bapu Rajaram complainant herein and approximately Rs.35 lakhs by Karthikeyan Dayalan has started and also they have not stated in their respective complaint stating that, they have invested in Rs.78 lakhs in the partnership firm of the accused No.1 Company. To substantiate their claim, they have not produced any supportive documents.
The accused No.2 has further contended that, since, the complainant has not invested Rs.43 lakhs and Karthikeyan Dayalan not invested Rs.35 lakhs, they have not produced any documents, as to show, the investment made by them of Rs.78 lakhs. The complainant and Karthikeyan Dayalan by filing separate cases have made claim of Rs.90 lakhs from the accused Nos.1 to 3, which is uncalled for, against to the public policy and which is based on the void/voidable contract. In the affidavit it also further contended that, since the complainant have not proved that, what was the exact amount, they have invested and their claim simply based on the alleged settlement deed at Judgment 11 C.C.No.15538/2015 Ex.P10, which was created surruptiously contrary to their investment with the company of the accused No.1. Hence, there is no legally enforceable debt and alleged agreement at Ex.P10 is void and contrary to the public policy. Since, for the complainants have not invested Rs.90 lakhs and even their assertion in the cross, they have invested Rs.78 lakhs and hence, their claim is Rs.90 lakhs from the accused Nos.1 to 3, which is not correct, illegal and based on the evidence and not entitled for the same.
The accused No.2 has further contended that, there is no legally enforceable debt. The complainant herein and complainant in C.C.No.15540/2015, have not proved the legally enforceable debt. Even they have not proved the total investment made by them of Rs.90 lakhs through Ex.P10. The Ex.P10 document which came into existence surruptiously and based on the void and voidable contract. The complainants on 21.01.2015 have taken the cheques for Rs.90 lakhs from the account of the 1st accused firm and on that day, in the account of accused No.1, there was no such outstanding balance of Rs.90 lakhs, hence, they have not proved that, which is not legally enforceable debt.
The accused No.2 has further contended that, Ex.P10 contained signature of accused Nos.2 and 3, but it is based not on Judgment 12 C.C.No.15538/2015 any that days financial position of the accused No.1 firm and as on that day, in the account of accused No.1, outstanding balance was Rs.1,32,753/- and there was no balance of Rs.90 lakhs. The complainants in both the cases knowingly well, the accused No.1 firm was running under the loss, surruptiously created Ex.P10 and have taken the cheques as if they have drawn for sum of Rs.90 lakhs in favour of the complainants. On 21.01.2015, on the alleged date of Ex.P10, 4 cheques bearing Nos.000120 to 000123 of HDFC Bank, and on that day, net balance was Rs.1,32,753/-. The complainants in both the cases have not produced any documents to show that, they have invested Rs.90 lakhs in the partnership business of accused No.1.
The accused No.2 in the affidavit further contended that, accused Nos.2 and 3 had invested Rs.50 lakhs and accused No.2 had invested Rs.60 lakhs respectively and they have taken the premises on the rent from Sri.B.C.Ramesh on monthly rent of Rs.2,50,000/- on June, 2014, and thereafter, spent Rs.40 lakhs for interior decoration and sum of Rs.15 lakhs for the establishment of A.C., and appointed a guide by name Mr.Saveen. Keeping this as a situation, the accused No.1 firm, from the beginning was running under the loss. That no point of time and accused No.1 firm was running in profit. That amount, all the 4 persons invested Judgment 13 C.C.No.15538/2015 was over for the establishment of accused No.1 company and there was no bank balance as on 21.01.2015.
The accused No.2 in the affidavit, it was further alleged that, complainants cleverly concocted Ex.P10 and took 4 cheques of the accused No.1 company. Since, there was no bank balance no benefit of accrued to them by entering in to agreement at Ex.P10, asking, accused Nos.2 and 3 to pay Rs.90 lakhs to the complainants as if have issued those cheques for discharge of debt is very unreasonable, void. In view of the aforesaid circumstances, they have virtually closed the business of the accused No.1 and soon after they have taken over.
The accused No.2 has further alleged that, with the aforesaid investment, the accused No.1 firm was running. It was not running in profit, even for a single day or month. For that reason only, the complainant has not produced any documents showing their investment of Rs.90 lakhs made in the business of accused No.1. Even they have not produced any document as to account statement and financial position of the accused No.1.
The accused No.2 has also further contended that, on 21.01.2015, the accused No.1 company was running under the loss, during the year 2014, the accused No.1 company was also Judgment 14 C.C.No.15538/2015 running under loss. Since, the firm was running under loss, the complainants have not produced Exs.D1 and D2 and it is only the accused have produced those documents to substantiate their claim. During the year 2015 i.e., 21.02.2015, the accused No.1 firm was running under loss.
The accused No.2 has also further alleged that, the partnership firm of accused No.1 as per Ex.P10, as on the date made mentioned therein, complainants in both the cases and accused Nos.2 and 3 were partners. All the partners, bare the loss and profit equally. As on 21.01.2015, the accused No.1 firm was running under the loss and amount invested was spent for establishment of company of accused No.1 and its maintenance etc. There was no outstanding balance of Rs.90 lakhs in the account of accused No.1 firm, both the complainants, knew the financial condition of the accused No.1 and knowingfully well that, they have created the Ex.P10 and drawn cheques of accused No.1 firm, as if, the accused Nos.2 and 3 drawn 4 cheques sum of Rs.90 lakhs to discharge legally enforceable debt. The accused have produced some documents to prove their contention, the complainants have not produced the same. The DW.1 was subjected for cross-examination from the advocate for complainant.
Judgment 15 C.C.No.15538/2015
16. On going through the rival contentions of the parties, the fact that, based on Exs.P1 and P2 cheques stood in the name of accused No.1 alleged to be issued by accused Nos.2 and 3 for discharge of partnership of the complainant herein, got issued those cheques for payment of their share, right, title and interest, including assets and good will and ascertain the share of the complainant at Rs.50 lakhs, issued the questioned cheques and when they were dishonoured, despite, gave legal notice, as the accused Nos.2 and 3 have not paid the amount covered under the cheques, filed the present case. Therefore, it made clear that, based on the Exs.P1 and P2 cheques, the complainant has moved the present complaint, hence, the initial statutory presumption stands in favour of complainant that, questioned cheques were issued by the accused Nos.2 and 3 on behalf of accused No.1 for discharge of existence of legally recoverable debt, unless and until contrary prove.
17. On going through the defence taken by the accused in his affidavit evidence of DW.1, led personally by the accused No.2 as well as on behalf accused No.3, they have admitted that, as on 21.01.2015, Karthikeyan Dayalan, accused Nos.2 and 3 are being the partners of the accused No.1 firm. The accused Nos.2 and 3 have contended that, as per their affidavit particulars, they Judgment 16 C.C.No.15538/2015 claimed to be invested in all sum of Rs.1,67,50,000/- in the business of accused No.1, which includes their shares as well as expenses incurred, building rent, interior decoration and installation of A.C., and payment of guide. More particularly, these accused persons have contended that, all the 4 persons invested over the establishment of the accused No.1 company. Though, accused Nos.2 and 3 have contended, they have invested the huge amount of Rs.1,67,50,000/- and also contended all the partners are equally responsible to bare the loss and profit, they have not stated, what was the investment made by the complainant herein and complainant in another C.C.No.15540/2015. Even not specified the particulars of the investment made by the accused Nos.2 and 3. These accused persons have specifically contended that, as on 21.01.2015 all the above said persons are in the firm and after opening the company in the name of accused No.1, even a single day or month, it was not run in profit.
18. In order to show that, as deposed by the complainant to show that, he was invested for sum of Rs.43 lakhs or to show that, Karthikeyan Dayalan was invested sum of Rs.35 lakhs, in all they have invested Rs.78 lakhs or to show, they are claiming of Rs.90 lakhs, which involves in both the cases, they have not produced Judgment 17 C.C.No.15538/2015 any documents. As on the date of alleged entered into document at Ex.P10 dated:21.01.2015, the bank balance of the concern of accused No.1 was Rs.1,32,753/- and there was no balance of Rs.90 lakhs as contended, hence, questioned cheques were not issued by them for discharge of legally enforceable debt, but the complainant herein and Karthikeyan Dayalan took cheques from the company of accused No.1, got created Ex.P10 and filed the false case. Even in the affidavit evidence of the accused No.2, he not stated anything about their liability payable to the complainant and Karthikeyan Dayalan at the time of their retired from the partnership firm letting the accused Nos.2 and 3 continue their said business. Even, there was no prayer made in the affidavit evidence of the accused, either to consider the prayer of complainant or to make any specific prayer, as to the claim against the complainant, nothing has whispered in the affidavit evidence.
19. On going through the rival contentions of the parties, it made clear that, the initial onus lies on the accused to prove their probable defence. In that regard, accused No.2 choosen to entered into witness box personally as well as on behalf of accused No.3. From the DW.1 no document is marked, but through the PW.1 few documents at Exs.D1 to 4 are marked. The Judgment 18 C.C.No.15538/2015 DW.1 was subjected for cross-examination from the advocate for the complainant.
20. During the course of cross of DW.1, who deposed personally as well as on behalf of accused No.3 by admitting that, the signature found in the cheques at Exs.P1 and P2 of him as well as accused No.3. The DW.1 has categorically admitted that, the accused Nos.2 and 3 are the partners of the concern of accused No.1. The DW.1 has categorically admitted that:
"¦AiÀiÁð¢ 1£Éà DgÉÆævÀ ¥Á®ÄzÁjPÉ ¸ÀA¸ÉܬÄAzÀ ºÉÆgÀºÉÆÃUÀ®Ä, ¸Él¯ïªÉÄAmï rÃqï£ÀÄß ªÀiÁrPÉÆArzÀÝgÀÄ JAzÀgÉ ¸Àj. CzÀgÀ°è vÀ¯Á gÀÆB25 ®PÀë ¤¦-1 ªÀÄvÀÄÛ 2gÀ ZÉPïUÀ¼À ªÀÄÄSÁAvÀgÀ ¦AiÀiÁð¢UÉ ºÀt ªÀÄgÀ½¸À®Ä PÁtô¹zÉ JAzÀgÉ ¸ÁQë, CzÀgÀ°è ZÉPï §UÉÎ £ÀªÀÄÆ¢¹zÉ, DzÀgÉ ªÉÆvÀÛ £ÀªÀÄÆ¢¹®èªÉAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¸ÁQëUÉ ¢£ÁAPÀB21.01.2015gÀ ¸Él¯ïªÉÄAmï rÃqï£À £ÉÆÃlgÉʸïØ ¥ÀæwAiÀÄ£ÀÄß vÉÆÃj¸À®Ä, ¸ÁQë CzÀgÀ°ègÀĪÀ ¸À» £À£ÀßzÀ®èªÉAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¸ÀzÀj ¸Él¯ïªÉÄAmï rÃqï£À ¥ÀæPÁgÀ 1£Éà DgÉÆæ ¸ÀA¸ÉÜAiÀÄ°è «ªÁzÀ GAmÁzÁUÀ CzÀ£ÀÄß ªÀÄzÀså¹ÜPÉzÁgÀgÀ ªÀÄÄSÁAvÀgÀ EvÀåxÀð¥Àr¹PÉƼÀî¨ÉÃPÀÄ JAzÀgÉ, CzÀ£ÀÄß ¸ÁQë £Á£ÀÄ N¢®èªÉAzÀÄ ºÉüÀÄvÁÛgÉ."
21. On going through the evidence of DW.1, he categorically deposed that, the complainant in order to retire from the Judgment 19 C.C.No.15538/2015 partnership business of accused No.1 concern, got entered into settlement deed is been admitted. The DW.1 has answered to the suggestion made by the advocate for complainant that, in the said settlement deed, it was mentioned about the issuance of cheques at Exs.P1 and P2 to the complainant for sum of Rs.25 lakhs each at the time of his retirement, he admitted mentioning of the same, but volunteers that, amount is not been mentioned. When the document, which is the certified copy of settlement deed dated:21.01.2015 was tendered to DW.1, on seeing the said document, the DW.1 has deposed that, signature therein is not of him. Even, DW.1 has deposed that, in the movement of any dispute arose between the partners pertaining to the company of accused No.1, it should be set right to the mediators, the DW.1 has deposed, he did not read the same. The present case is not in respect of the issue of partnership firm. But, it is with regard to the liability of the accused Nos.1 to 3 arose out of questioned cheques.
22. On going through the said testimony of DW.1, on the one breath, he admitted the execution of settlement deed in the event of complainant went out from the partnership business of the accused No.1 by letting accused Nos.2 and 3 continuing the same. But, when the certified copy of document was tendered to Judgment 20 C.C.No.15538/2015 him, he denied the signature. The said evidence of DW.1 disclosed the twisted stand of the accused, on the one stretch he admitted, by virtue of settlement deed, the complainant was let out from the partnership business and they have continued, but on the other, has denied the signature there on. From the said evidence of DW.1, it is crystal clear that, at the time of settlement deed entered into, let out the complainant herein and Karthikeyan Dayalan, being partners of the accused No.1. The document in the name and style of settlement deed was entered into is not in dispute. Even, the factum of got issued the questioned cheques to the complainant for sum of Rs.25 lakhs each is not been disproved by the DW.1, but he stated, the amount not mentioned in the settlement deed. However, the certified copy of the settlement deed, been produced by the complainant as per Ex.P10. If at all, the accused No.2 and 3 being continued as partners of the accused No.1 company. It also made clear that, their position in the business of the accused No.1 company, definitely, they are the better persons possessed the original of the said document, if Ex.P10 is the not the settlement deed entered into, which does not bare the signature of accused No.2 and 3 definitely, it is the bounden duty of the accused Nos.2 and 3, to produce the original document such as, settlement deed Judgment 21 C.C.No.15538/2015 entered into, while let out the complainants in both the cases, but no such contention or document is been produced by the accused. Therefore, Ex.P10 is the document, it has the evidentiary value and it should be consider as secondary evidence. Therefore, to discard the said document, the accused No.2 is not led any evidence.
23. During the further cross-examination of DW.1, it was suggested to him from the side of complainant that, the date mentioned in the cheques at Exs.P1 and P2 as well as the date mentioned in the settlement deed are one and the same, the DW.1 without denying the same, as deposed that, he kept those cheques with sign in the company of accused No.1, the complainant and Karthikeyan Dayalan have misused the same. Thereby, the accused has projected that, the complainant herein and Karthikeyan Dayalan got misused those cheques took from the concern of the accused No.1. It is significant fact to note that, the complainant herein and Karthikeyan Dayalan are the partners till their retirement as per Ex.P10 is not in dispute. The complainant has projected the case stating that, as per the settlement of partnership deed, the complainant and Karthikeyan Dayalan were retired in terms of conditions made mentioned therein, accordingly, to gave the share of them, the accused Judgment 22 C.C.No.15538/2015 Nos.2 and 3 gave questioned cheques and the same were mentioned in the Ex.P10. In the Ex.P10 the settlement of partnership deed, it made clear that, the complainant and Karthikeyan Dayalan are retired from their partnership by taking away their share amount determined, as made mentioned therein and by way of gave cheques at Exs.P1 and P2 for sum of Rs.25 lakhs each involved in the present case, the share amount of the complainant is determined at Rs.50 lakhs. When the complainant has projected the present case by stating, while they have retired from their partnership with the accused Nos.2 and 3, they have issued questioned cheques in respect of the amount payable to the complainant for the tune of Rs.50 lakhs.
24. The DW.1 has admitted the said document, but stated, he was not signed. In order to show that, he not signed the said document as discussed earlier, then who put the signature at Ex.P10 on behalf of accused Nos.2 and 3 and whereas, the original copy of the same and on which basis the accused Nos.2 and 3, claiming the complainant and Karthikeyan Dayalan are retired from the partnership firm by letting them to continue the business in the name of accused No.1, the original document is not been produced. Even the DW.1 has contended, the complainant got misused the questioned cheques from the office Judgment 23 C.C.No.15538/2015 of the accused No.1, in that regard, being responsible persons the accused Nos.2 and 3 admitted, not lodge any complaint or initiate any legal action. Therefore, it made clear that, being a responsible partners, the accused Nos.2 and 3 if at all, the complainant and Karthikeyan Dayalan got misused the cheques, definitely, could have initiate necessary action, in that regard, no effort is made. Even a single notice is not been issued brought into their notice as to misuse of those cheques.
25. The DW.1 in his cross-examination has clearly admitted the contents of notice at Ex.P5 as correct. The relevant portion runs thus:
"¤¦-5 ¦AiÀiÁ𢠤ÃrzÀ £ÉÆÃnøï£À°è §gÉzÀ «µÀAiÀÄ ¸Àj EzÉ JAzÀgÉ ¸Àj. CzÀPÉÌ £Á£ÀÄ GvÀÛj¹®è, ¸ÁQë D £ÉÆÃnÃ¸ï £À£ÀUÉ §A¢®èªÉAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ¤¦-6 gÀ £ÀªÀÄä «¼Á¸À ¸Àj EzÉ."
26. On going through the said testimony of DW.1, he clearly admitted the recitals made in the Ex.P5 legal notice issued by the complainant, demanding the accused Nos.2 and 3 for pay the amount covered under the cheques on account of their dishonoured are true and correct. Apart from that, in the Ex.P5 legal notice, the complainant has narrated about factum of complainant and Karthikeyan Dayalan are the partners and they Judgment 24 C.C.No.15538/2015 have retired by virtue of settlement deed dated:21.01.2015 and accused No.2 and 3 have agreed to settle their shares by way of gave Rs.50 lakhs to the complainant and accordingly, got issued questioned cheques for its payment, therefore, it is the existence of legally recoverable debt payable by accused Nos.2 and 3 to the complainant. Those factum is admitted by the DW.1, which contended in the legal notice at Ex.P5. Even, the DW.1 has deposed that, he not replied the said notice, but categorically admitted that, the address made mentioned in the notice at Exs.P6 to P8 are of him. Under such circumstances, how the accused No.2 has projected his defence stating, despite, the said notices are served to the address of accused Nos.1 to 3, they are claiming no notice is served. Even, he not deposed the notice is served on accused No.3. When address of accused Nos.1 to 3 are correct as found in Ex.P6 and postal acknowledgment at Exs.P6 to P8 are returned on due service to the address made mentioned therein of the accused Nos.1 to 3. If at all, the version of the accused were to be true, definitely, they could have issue reply notice by put forth their defence, but no such effort is made. Simply, denying the notice is not served on them, is not enough, why the said notices are not served, contrary to the report and documents at Exs.P6 to P8 placed by the complainant, as to due Judgment 25 C.C.No.15538/2015 service. Hence, the non-reply on the notices is also one of the strong circumstances made out by the complainant to disbelieve the probable defence of the accused and relied upon the oral as well as documentary evidence of the complainant.
27. During the course of cross of DW.1, he also clearly admitted his signature found in Ex.P9 joint memo filed. On going through the Ex.P9 joint memo has admitted by the accused, it discloses, the said joint memo was signed by the complainant and accused No.3. On meticulous perusal of the said evidence of DW.1, he admitted the signature of DW.1 and he does not discloses anything about its genuineness. On meticulous perusal of the Ex.P9 joint memo, it discloses, it is pertaining to the present case and the date of its preparation disclosed as 11.11.2016. Wherein, complainant and accused No.3 were the signatory and the advocate for the complainant only singed. The advocate for the accused and the signature of the accused No.2 is not been found therein. However, the DW.1 though being one of the partner of the accused No.1 concern, has not denied its contents. No doubt, though Ex.P9 joint memo is prepared, it has not been submitted to the court and reported the settlement and obtained any order thereon. Though, it was prepared on 11.11.2016 it was produced before the court on 03.12.2016 and got marked at Judgment 26 C.C.No.15538/2015 Ex.P9. When accused No.3 has not disputed its due execution, his evidence also stood on the foot of accused No.2. Therefore, whatever the contents made therein is also binding on the accused No.2 also. Hence, the DW.1 has not denied its execution and contents made mentioned therein.
28. On going through the Ex.P9 - Joint Memo, entered into between complainant and accused No.3 pertaining to the present case, it made clear that, accused No.3 got admitted the issuance of questioned cheque at Exs.P1 and P2 for sum of Rs.25 lakhs each to the complainant. It is require to re-produce the relevant portion of contents of Joint Memo that:
"The complainant and accused No.3 respectfully submit as under:
The complainant has filed the above private complaint under Section 138 of Negotiable Instruments Act, against the accused persons for the dishonouring of the cheques bearing No.000120 and 000121, both dated:21.01.2015 for Rs.25 lakhs each.
Accused No.2 and 3 are jointly and severally liable for the cheque amount of Rs.50 lakhs. However, today the accused No.3 admits his liability towards the cheque and Judgment 27 C.C.No.15538/2015 undertakes to pay Rs.25 lakhs, towards his liability of cheque amount.
Out of said Rs.25 lakhs, accused No.3 has already paid Rs.12 lakhs to the complainant and hereby undertakes to pay balance amount of Rs.13 lakhs within one month from today.
Accused No.3 do hereby also admits that, he is liable to pay an amount of Rs.20 lakhs to one Karthikeyan, who is complainant in C.C.No.15540/2015 which is pending before this Hon'ble Court, towards cheque bearing No.000122 and 000123 both dated:21.01.2015 for Rs.20 lakhs each and the said case is posted on 14.11.2016.
In so far as, the present case, the accused No.3 and the complainant have agreed to aforementioned terms in the joint memo and complainant acknowledges that, he has already received sum of Rs.12 lakhs and agrees that, on payment of further sum of Rs.13 lakhs, the same will be taken as full and final settlement of accused No.3 in respect of his liability of Rs.25 lakhs, in the present case bearing No.15538/2015. Therefore, this memo may be taken on record by this Hon'ble Court, in the interest of justice."
29. On meticulous perusal of Ex.P9, it made clear that, the accused No.3 has singed the said joint memo. Wherein, he clearly admitted the issuance of questioned cheques at Exs.P1 and P2 dated:21.01.2015 in favour of complainant for sum of Judgment 28 C.C.No.15538/2015 Rs.25 lakhs each. In the said joint memo, accused Nos.2 and 3 have undertaken jointly and severely liable for payment of cheque amount of Rs.50 lakhs to the complainant. It is significant fact to note that, as on the date of preparation of joint memo dated:11.11.2016, the accused No.2 admits its liability, towards the cheques amount and undertakes to pay Rs.25 lakhs towards his liability of cheque amount. Even, it also contended, the accused No.3 out of Rs.25 lakhs has already paid sum of Rs.12 lakhs to the complainant and undertakes to pay the balance of Rs.13 lakhs within one month from the date. The said recitals, which are none other than the terms and conditions made it clear that, the accused No.2 already paid sum of Rs.12 lakhs and same is admitted by the complainant. Which discloses, the accused No.3 is only liable to pay Rs.13 lakhs, out of Rs.25 lakhs cheque amount pertaining to one cheque.
30. The subsequent portion of joint memo discloses, accused No.3 also admitted his liability to pay an amount of Rs.20 lakhs to Karthikeyan Dayalan pertaining to cheques bearing No.000122 and 000123 for Rs.20 lakhs each payable to Karthikeyan Dayalan, complainant in C.C.No.15540/2015. The said settlement pertaining to the case between Karthikeyan Dayalan and accused Nos.1 to 3 is not subjected matter of the present case. However, Judgment 29 C.C.No.15538/2015 the joint memo discloses, complainant and accused No.3 undertakes to pay the amount in pursuance of joint memo and already paid sum of Rs.12 lakhs and agrees to pay balance sum of Rs.13 lakhs. As full and final settlement out of Rs.25 lakhs in respect of liability of accused No.3.
31. On meticulous perusal of joint memo produced at Ex.P9, accused No.3 along entered into the settlement with the complainant and paid sum of Rs.12 lakhs and portion of liability of Rs.25 lakhs covered under one cheque, remaining amount of Rs.13 lakhs is payable by him. Therefore, the word, accused No.3 him only is been mentioned repeatedly in the joint memo. From the point of Ex.P9 has admitted by the complainant and accused No.3, it made clear that, the accused No.3 already paid sum of Rs.12 lakhs to the complainant pertaining to one cheque for Rs.25 lakhs and balance amount of Rs.13 lakhs is payable by the accused No.3 is been admitted. It is significant fact to note that, after filing of the present case, complainant got received Rs.25 lakhs from the accused No.3 and on the portion of liability the accused No.3 shall pay Rs.13 lakhs, as existence of legally recoverable debt, as he undertaken.
Judgment 30 C.C.No.15538/2015
32. On going through the Ex.P9 joint memo, the accused No.2 being an responsible partner of the accused No.1, not being the signatory and his liability of payment of Rs.25 lakhs is not been stated. Though, DW.1 tendered for cross-examination, even on the foot of accused No.2 stated anything about it, hence, the fact remains as per the point of Ex.P9 that, Rs.25 lakhs is liability of the accused No.2 is payable by him to the complainant. Though, the said document at Ex.P9 is sighted to the DW.1, it does not disclose, anything about the same, therefore, the complainant has successfully proved from the evidence of DW.1 that, the accused No.3 is the liable to pay Rs.13 lakhs by virtue of Ex.P9, pertaining to the one cheque and pertaining to the another cheque at Ex.P2 for Rs.25 lakhs the accused No.2 has not paid any money and even to avoid his liability being a responsible partner of the accused No.1 along with accused No.3, by virtue of retirement of complainant and Karthikeyan Dayalan, no money is been paid. He prosecuted the matter through DW.1, therefore, to discard the liability of the accused No.2, there is no evidence from the side of DW.1. Hence, the evidence of complainant by way of cross- examining the DW.1, successfully proved the case of the complainant, as entered into settlement deed at Ex.P10 and by virtue of the same, complainant had possessed the questioned Judgment 31 C.C.No.15538/2015 cheques at Exs.P1 and P2. Despite, got issued legal notice as per Ex.P5 after dishonour of those cheques, the accused Nos.1 to 3 not issued any reply, but as per Ex.P9, the accused No.3 got paid sum of Rs.12 lakhs and undertakes to pay Rs.13 lakhs within one month from the date made mentioned therein, but not paid. Even, to show that, the accused No.2 has paid the amount of Rs.25 lakhs, as his liability covered under the cheque being a one of the responsible partner of the accused No.1, he not paid money nor produced any document to skip away from his liability. The accused utterly failed to rebut the statutory presumption as well as facts and circumstances made out by the complainant. However, the complainant also examined in the line of complaint averments and allegations coupled with documents at Ex.P1 to P10 projected his case.
33. The PW.1 was subjected for cross-examination. Wherein, he categorically deposed that:
"£À£Àß ¥Á®Ä 43 ®PÀëªÀ£ÀÄß ¸ÀzÀj ¸ÀA¸ÉÜAiÀÄ°è £Á£ÀÄ vÉÆqÀV¹zÉÝãÉ. PÁwðPÉÃAiÀÄ£ï ¸ÀĪÀiÁgÀÄ 35 ®PÀë §AqÀªÁ¼À vÉÆqÀV¹gÀÄvÁÛgÉ. 2 £Éà DgÉÆæ ¸ÀĪÀiÁgÀÄ 50 ®PÀëªÀ£ÀÄß §AqÀªÁ¼À vÉÆqÀV¹zÁÝgÉ JAzÀgÉ ¸Àj. YõÁÕ£ÉñÀégï gÀªÀgÀÄ 60 ®PÀë §AqÀªÁ¼À vÉÆqÀV¹zÁÝgÉAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÁQë QÃwð¸ÁUÀgï ªÀÄvÀÄÛ YõÁÕ£ÉñÀégï Judgment 32 C.C.No.15538/2015 gÀªÀgÀÄ MmÁÖgÉ 50 ®PÀë §AqÀªÁ¼ÀªÀ£ÀÄß ºÀÆrgÀ§ºÀÄzÀÄ JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. 2014 gÀ°è gÀªÉÄñï JA§ ªÀiÁ°ÃPÀjAzÀ 1 £Éà DgÉÆævÀ ¸ÀA¸ÉÜAiÀÄ£ÀÄß ªÀiÁ¹PÀ ¨ÁrUÉ 2 ªÀgÉ ®PÀëPÉÌ vÉUÉzÀÄPÉÆArzÉݪÀÅ. ªÉÄÃ-dÆ£ï 2014 gÀ°è ¨ÁrUÉUÉ vÉUÉzÀÄPÉÆArzÉݪÀÅ. 1 £Éà DgÉÆævÀ ¸ÀA¸ÉÜAiÀÄ£ÀÄß ¨ÁrUÉUÉ vÉUÉzÀÄPÉƼÀÄîªÁUÀ ¨ÁrUÉ eÁUÀ ªÀiÁvÀæ EzÀÄÝ EAnÃjAiÀÄgï PÉ®¸ÀªÀ£ÀÄß £ÁªÀÅ ªÀiÁrPÀÉÆArzÉݪÀÅ. 1 £Éà DgÉÆævÀgÀ ¸ÀA¸ÉÜ ¥ÀgÀªÁV 26 ®PÀëªÀ£ÀÄß ªÀÄÄAUÀqÀªÁV PÉÆnÖzÉݪÀÅ. EAnÃjAiÀÄgï qÉPÉÆÃgÉõÀ£ï¤AzÀ 40 ®PÀë RZÀÄð DVvÀÄÛ JAzÀgÉ ¸Àj. ¸ÁQë 2 £Éà DgÉÆæ QÃwð ¸ÁUÀgï D RZÀð£ÀÄß vÁ£Éà £ÉÆÃrPÉƼÀÄîªÀÅzÁV £ÀÄrAiÀÄÄvÁÛgÉ. PÉÃA¢æPÀÈvÀ ºÀªÁ¤AiÀÄAvÀæt ªÀåªÀ¸ÉÜAiÀÄ£ÀÄß ¸ÀĪÀiÁgÀÄ 13-15 ®PÀë vÉÆqÀV¹zÉݪÀÅ JAzÀgÉ ¸Àj. 1 £Éà DgÉÆævÀ ¸ÀA¸ÉÜAiÀÄ PÉ®¸À ¥ÀÇtðUÉƽ¸À®Ä ¸ÁPÀµÀÖÄ §AqÀªÁ¼À vÉÆqÀV¹zÉݪÀÅ JAzÀgÉ ¸Àj."
34. On going through the said testimony of PW.1, he clearly deposes in the company of the accused No.1, the complainant got invested Rs.43 lakhs as his share and another partner Karthikeyan Dayalan got invested Rs.35 lakhs. Even, he deposed, the accused No.2 got invested Rs.50 lakhs and accused No.3 got invested Rs.60 lakhs is denied by the PW.1 and he stated that, accused Nos.2 and 3 could have invested Rs.50 lakhs jointly. Therefore, the evidence of PW.1, it discloses, two fold, Judgment 33 C.C.No.15538/2015 one fold discloses, he is declaring his investment of Rs.43 lakhs and accused Nos.2 and 3 altogether invested Rs.50 lakhs and Karthikeyan Dayalan alleged to be invested Rs.35 lakhs. During the course of cross of PW.1, he also admitted that, the building taken on lease from one Sri.B.M.Ramesh on the monthly rent of Rs.2,50,000/- and also admitted the interior work was did. He deposed that, in the name of accused No.1 concern Rs.26 lakhs were paid as advance and admitted the cost of interior decoration was Rs.40 lakhs. PW.1 has deposed that, accused No.2 has undertaken to bare the said expenses. Even it was the suggestion made to the PW.1 that, to made it as centralized A.C., it was invested sum of Rs.13 lakhs to Rs.15 lakhs, the same is been admitted by the complaint . Even, it also discloses, for completion of work for doing business in the building, it was invested huge amount.
35. On meticulous perusal of the suggestion made to PW.1, from the accused side it was not suggested, the complainant was not invested Rs.43 lakhs as he deposed. Even it was not suggested to him that, for payment of rentals, other interior decorations nor converted it as centralized A.C., the complainant and Karthikeyan Dayalan not invested, but only the accused Nos.2 and 3 are invested, no suggestion were made. The said Judgment 34 C.C.No.15538/2015 piece of cross-examination discloses, the suggestion as to involvement of the complainant and Karthikeyan Dayalan being a partners made the business as comfortable in the name of accused No.1. Therefore, the contention of the complainant, as to his alleged investment is not been denied on the 1st day of cross- examination.
36. On the later day of cross-examination, from the side of accused, after thought put the question and asked the clarification. Wherein, asked about the document as to investment made by the complainant for the tune of Rs.43 lakhs by the complainant and for the tune of Rs.35 lakhs alleged to be made by the Karthikeyan Dayalan. The PW.1 has deposed, to show that, they have made investment as such, no document possessed by them. At least, to rebut the said contention to show that, contrary to the case of complainant, if at all, accused No.2 and 3 were made investment, complainant and Karthikeyan Dayalan are not made the investment, as deposed by the PW.1, accused also not produced any document to the investment made by them as alleged. Since, accused not produced any documents to show that, the alleged investment made by them are huge amount, therefore, they being the responsible partners run the business in the name of accused No.1 concern, by made use of Judgment 35 C.C.No.15538/2015 the other partners money, they are equally responsible to produce necessary documents.
37. In the case on hand, from the evidence of PW.1 coupled with the suggestion made by the advocate for the accused, it reveal that, even accused Nos.2 and 3 have no documents to show that, they have made the huge investment as their share in the business of accused No.1. Therefore, they have estoppels from asking the documents from the side of complainant also. The complainant is not stating that, together they have made the investment of Rs.90 lakhs as found in the condition No.8 of Ex.P10. The PW.1 has further clarifies in his cross-examination that, complainant and Karthikeyan Dayalan together had invested Rs.78 lakhs. The said evidence of PW.1 is not been denied. Therefore, the admitted investment made by the complainant and Karthikeyan Dayalan of Rs.43 lakhs and Rs.38 lakhs respectively is not been disproved by the accused Nos.1 to 3.
38. It is pertinent to note that, as per the say of PW.1, partnership business among to the complainant, accused Nos.2 and 3 in the name of accused No.1 were established in the month of February, 2014. The said testimony of PW.1 remains unchallenged, wherein, later, Karthikeyan Dayalan came to be Judgment 36 C.C.No.15538/2015 inserted as 4th partner. Therefore, from the said unchallenged evidence of PW.1, it made clear that, the partnership business of the complainant and accused, in the name of accused No.1 together with Karthikeyan Dayalan was run from February, 2014. If at all, the said partner vendor started during February, 2014, definitely, it should be did through partnership deed. None of the parties have contended, to that effect, partnership deed was entered into among thyself. Unless, the partnership deed reduced into writing, on which confidence each of the partners alleged to be got invested the huge amount to start business in the name of accused No.1. Whatever it may be, the duties and liabilities and profit and loss have to be made mentioned in the partnership deed. None of the parties have produced or give any explanation either into any such partnership deed are not is been explained nor produced any document. The fact remains that, complainant, accused Nos.2 and 3 and Karthikeyan Dayalan joined together as partnership deed business in the name of accused No.1 concern. From 2014 till the complainant and Karthikeyan Dayalan came to be retired from the said business as per Ex.P10, none of the parties have produced any documents.
39. The accused No.2 in his affidavit evidence has stated, he for the sake of business in the name of accused No.1 invested Judgment 37 C.C.No.15538/2015 Rs.1,67,50,000/-. It is not the case of accused No.2 that, he is only responsible person for made such investment and accused No.3 as well as complainant and Karthikeyan Dayalan are not having any responsibility to invest in the business of accused No.1. If at all, those persons except accused No.3 not invested, whether it was necessary to brought them as partners in the business of accused No.1 is also not been explained. Unless, the complainant, Karthikeyan Dayalan and accused No.3 were not invested equally along with accused No.2, whether, accused No.2 can retained those partners in the business of him is also not been explained. Without any valid reasons, the accused Nos.2 and 3 have contended that, complainant and Karthikeyan Dayalan have not made investment. If at all, without produce any document, the version of the DW.1 were to be true, as to alleged investment made by him, it is equally true to accept to say of PW.1, as to investment made by him of Rs.43 lakhs and Karthikeyan Dayalan had invested Rs.35 lakhs. Therefore, without any base, each of the partners have took their role in develop the business of accused No.1 by investing their own money. Only because on which of the parties have not furnished documents, as to the investment made by them, the total investment made in the name of accused No.1 and run the Judgment 38 C.C.No.15538/2015 business since February, 2014 till the complainant and Karthikeyan Dayalan retired from their partnership, let the accused No.2 and 3 to continued their business, it made clear that, the business was going by the responsibility of each of the partners.
40. In order to know the duties and responsibilities as well as liabilities in partnership concern business, none of the parties have produce the partnership deed with its terms and conditions to know their liabilities. Without producing the said terms and conditions they have claiming the investment made in the business of accused No.1. It is pertinent to note that, the PW.1 during his cross-examination has denied the suggestion made by the advocate for accused that, the business of accused No.1 not run profitably, even a single day or month, as contended by accused is been denied by him. The PW.1 has deposed that, when he was the partner along with the other accused persons, the said business not undergone the loss. In order to show that, the business of the accused No.1 from February, 2014 till 21.01.2015, the complainant came to be retired, sustained any loss, the accused has not produced any document. If at all, the said business even a day as alleged not run or gain any profit, definitely, no need to continue the said business, even after Judgment 39 C.C.No.15538/2015 retirement of complainant and Karthikeyan Dayalan. Since the business was run smoothly and profitably, they have permitted the complainant and Karthikeyan Dayalan to retire by way of entered into settlement deed as per Ex.P10 and continued by the accused Nos.2 and 3 only. Since, the accused No.2 and 3 are also permitted them to retire from the business, they have entered into Ex.P10 settlement of partition deed.
41. On meticulous perusal of Ex.P10, as discussed earlier the original is not been produced by the accused Nos.2 and 3. On going through the Ex.P10 it made clear that, the complainant and Karthikeyan Dayalan are retired from their partnership commencing from 21.01.2015. On meticulous perusal of the said recitals, it made clear that, the accused Nos.2 and 3 have the business in his name of accused No.1 and have entered into with settlement and undertakes to pay Rs.90 lakhs such as, Rs.50 lakhs to the complainant and Rs.40 lakhs to the another retired partner Karthikeyan Dayala, as their share in the partnership business including its assets and good will. Unless, they have assets the shares of complainant and Karthikeyan Dayalan, on which confidence they have collected their shares and got issued the cheques at Exs.P1 and P2 to the complainant and other cheques to Karthikeyan Dayalan. No doubt, during the course of Judgment 40 C.C.No.15538/2015 cross of PW.1, he deposed, he made investment of Rs.43 lakhs and he categorically deposed that, rest of the amount was paid by the accused Nos.2 and 3, as the share of him, in view of his retirement by adding Rs.12 lakhs.
42. The PW.1 in his cross-examination has deposed that:
"43 ®PÀë £À£Àß ±ÉÃgÀÄ JAzÀ§ÄzÁV vÉÆÃj¸À®Ä zÁR¯É ºÁdgÀÄ¥Àr¹®è. £À£Àß ªÀÄvÀÄÛ PÁwðPÉÃAiÀÄ£ï §AqÀªÁV 78 ®PÀë DVzÀÄÝ, DgÉÆæ¬ÄAzÀ £À£Àß ¥ÀæPÁgÀ 12 ®PÀëªÀ£ÀÄß ºÉZÁÑV ¸ÉÃj¹ ZÉPï£À ªÀÄÄSÁAvÀgÀ DgÉÆæ¬ÄAzÀ ZÉPÀÌ£ÀÄß ¥ÀqÉ¢zÉÝãÉ."
43. By saying so, the PW.1 has deposed that, to show that, Rs.43 lakhs was his share, no document is been produced. Even he stated that, complainant and Karthikeyan Dayalan together with investment Rs.78 lakhs and by adding Rs.12 lakhs pay the amount accused gave cheques to them. As per say of PW.1, Rs.12 lakhs amount is additional amount given by the accused Nos.2 and 3 at the time of they have retired. The Ex.P10 remains unchallenged and it made clear that, by virtue of the said settlement at the time of complainant and Karthikeyan Dayalan retired from the partnership business of accused No.1 letting accused Nos.2 and 3 to continue, got closed the very transaction with them. Therefore, the accused Nos.2 and 3 gave questioned Judgment 41 C.C.No.15538/2015 cheques at Exs.P1 and P2 to the complainant for sum of Rs.25 lakhs each. The signature found there in is not been disputed. The cheques belong to the accused No.1. When the movement of complainant got presented those cheques for encashment it got returned stating payment stopped by the drawer. Thereafter, complainant gave legal notice as per Ex.P5, the same came to be served on accused Nos.1 to 3. Despite that, if their contention were tobe true, definitely, could have been issue reply. But no such effort been made.
44. If at all, the complainant and Karthikeyan Dayalan took away the questioned cheques and cheques involved in C.C.No.15540/2015, definitely, the accused Nos.2 and 3 being a responsible partners could have lodge complaint or initiate necessary legal action, no such effort is been made by them. Even, which is their contention that, as on 21.01.2015, as per Ex.D1 they have not maintained more than Rs.1,32,500/-. If at all, there was sufficient funds maintained to honour the questioned cheques, in the event of the complainant got misused the same by encashing in the event of question of issue stop payment instruction would arise. As on the date of cheques, no such sufficient fund in the account of the accused Nos.1 to 3. Therefore, gave stop payment instruction itself created doubt, as Judgment 42 C.C.No.15538/2015 to the genuineness of claim put forth by the accused Nos.1 to 3. The Ex.D2 income tax returns pertaining to the period 2015-16. Wherein, mentioned the gross total income as, Rs.34,92,030/-. Even, to show that much income no document is been placed. The Ex.D3 discloses, the payment made in the name of accused No.1, to the various persons.
45. The Ex.D3 discloses, the business was run by accused Nos.1 to 3. Even, Ex.D4 clearly discloses, Rs.12 lakhs were paid to the complainant as mentioned in Ex.P9 - Joint Memo. Though accused have prosecuted the matter altogether, have utterly failed to disprove the case of the complainant. Unless, they found profit in the business after retirement of the complainant and Karthikeyan Dayalan, they decided to windup the partnership business with them by way of gave their shares. Accordingly, assessed the share of complainant Rs.50 lakhs along with the investment made by him and legally terminated their partnership as per Ex.P10 and got issued questioned cheques at Exs.P1 and P2 for payment of Rs.50 lakhs. Therefore, the said cheques were issued by the accused Nos.1 to 3 for the purpose of existence of legally recoverable debt and hard earned money of complainant were invested for start and running of business in the name of accused No.1 by joining together with other accused persons and Judgment 43 C.C.No.15538/2015 Karthikeyan Dayalan. Now because of the reason, the accused Nos.2 and 3, drop the complainant and Karthikeyan Dayalan from their partnership by ignoring their huge investment made for the development of business, cannot be accepted. When once all the partnership have invested money, each partners are hold responsible as per norms.
46. It is pertinent to note that, because of sustain loss the business in the name of accused No.1 is not winding up. It is significant fact to note that, the complainant and Karthikeyan Dayalan were returned from the business by letting the accused Nos.2 and 3 to continued the same. Therefore, both the accused No.2 and 3 are held responsible to pay the said money; hence, they have together issued the cheques of the accused No.1 for payment of existence of legally recoverable debt. Hence, each of the accused Nos.1 to 3 are guilty of the commission of offence, as they have not honoured the questioned cheques, despite, issuance of legal notice even prosecuted the matter altogether. Hence, by considering already payment made by the accused No.3 of Rs.12 lakhs as found in Ex.D4 as well as Ex.P9, the said amount has to be deducted out of the cheque amount of Rs.50 lakhs. Remaining amount of Rs.38 lakhs have to pay by the accused Nos.1 to 3. The accused No.1 is the concern, though it Judgment 44 C.C.No.15538/2015 committed the guilt along with accused Nos.2 and 3, it cannot be punished. But being a partner, the accused Nos.2 and 3 have to be convicted by imposing fine of Rs.38 lakhs. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court, it is fit case to convict the accused Nos.1 to 3 coupled with the amount of Rs.38 lakhs. The same offence has been continued till this day; therefore, the complainant has successfully established the guilt of the accused Nos.1 to 3, regarding commission of offence punishable under Section 138 of Negotiable Instruments Act. The complainant has complied the mandatory requirement and established his case successfully. Despite that, the accused Nos.1 to 3 have not set right the wrong committed by them as per Section 138 of Negotiable Instruments Act.
47. As discussed above by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence has proved that, the accused Nos.1 to 3 have committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, looking into the transaction, it is the considered opinion of this court that, the accused Nos.1 to 3 have taken bald, inconsistence defence without any base and failed to prove their improbable defence. Contrary, the PW.1 has established his case Judgment 45 C.C.No.15538/2015 beyond the reasonable doubt through oral as well as documentary evidence. Thereby, unnecessarily cause the complainant to approach this court of law, therefore, the accused Nos.2 and 3 are liable to be punished by way of imposing fine sentence. Therefore, the accused Nos.1 to 3 are to be convicted by imposing the amount of Rs.38,00,000/-. Out of the said fine amount, sum of Rs.37,90,000/- shall be payable to the complainant as compensation and remaining amount of Rs.10,000/- shall be payable to the state as fine amount. Accordingly, if the accused Nos.1 to 3 fails to pay the whole fine amount, the accused Nos.2 and 3 shall undergo simple imprisonment for 12 months each. Thereby, one more opportunity has provided to the accused Nos.1 to 3 to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has proved his case beyond reasonable doubt. In the result, the accused Nos.1 to 3 shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point No.1 is answered in the Affirmative and Point No.2 is answered in the partly Affirmative.
48. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
Judgment 46 C.C.No.15538/2015
ORDER
Accused Nos.1 to 3 found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C. the accused Nos.1 to 3 are convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.38,00,000/-, within the period of one month.
Out of the said fine amount, sum of Rs.37,90,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C.
Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
In default of pay the fine amount, the accused Nos.2 and 3 shall under go simple imprisonment for 12 (Twelve) Months each.
The bail bond and cash security/surety bond of the accused Nos.2 and 3 stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost. (Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 17th day of March - 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 47 C.C.No.15538/2015
ANNEXURE
List of Witnesses examined on behalf of Complainant:
PW-1 : Yeshwanth Kumar Bapu Rajan List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques Exs.P1(a) to P2(b) : Signatures of accused Nos.2 and 3 Exs.P3 & P4 : Bank endorsements Ex.P5 : Office copy of legal notice Exs.P6 to P8 : Postal Acknowledgment Cards Ex.P9 : Joint memo Ex.P9(a) : Signature of accused No.3 Ex.P10 : CC of settlement of partnership deed
List of Witnesses examined on behalf of the defence:
DW.1 : Keerthi Sagar Gnanashekar List of Exhibits marked on behalf of defence:
Ex.D1 : Statement of account
Ex.D2 : ITR-V
Exs.D3 & D4 : Details of payments
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 48 C.C.No.15538/2015
17.03.2020.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide
separate order.
*****
ORDER
Accused Nos.1 to 3 found guilty for the
offence punishable under Section 138 of
Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C.
the accused Nos.1 to 3 are convicted for the
offence punishable under Section 138 of
Negotiable Instruments Act and sentence to pay fine of Rs.38,00,000/-.
Out of the said fine amount, sum of Rs.37,90,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
Judgment 49 C.C.No.15538/2015
In default of pay the fine amount, the
accused Nos.2 and 3 shall under go simple
imprisonment for 12 (Twelve) Months each.
The bail bond and cash security/surety
bond of the accused Nos.2 and 3 stands
cancelled.
The office is hereby directed to supply
the copy of this Judgment to the accused on
free of cost.
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.