Bangalore District Court
W/O Dr. Sujan Ganapathy vs Having Office At No.88 on 14 December, 2022
SCCH-2 1 C.C.10811/2021
KABC020312782021
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF
SMALL CAUSES AND ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU (SCCH-2)
C.C.NO.10811/2021
Present: Smt. Shainey K.M., BAL.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACMM, Bengaluru.
Dated: On this 14th day of December, 2022.
JUDGMENT U/S 355 OF CR.P.C. 1973.
1. Sl.No. of the Case : C.C.No.10811 of 2021
2. The date of : 17.09.2021
commission of the
offence
3. Name of the : Dr. Shruthi S.D.,
Complainant
W/o Dr. Sujan Ganapathy,
Proprietress,
BioEdge Solutions,
1st Floor, No.M-400, 8th Cross,
SCCH-2 2 C.C.10811/2021
1st Stage, Peenya Industrial Area,
Bengaluru-560 058.
(By Sri.Prakash Balntagi, Advocate)
4. Name of the : M/s Chromgene Biotech Pvt. Ltd.,
Accused
Having office at No.880, 1st Floor,
Rajiv Gandhi Nagar,
2nd Phase, NTI Layout,
Kodigehalli, Railway Parallel
Road, Bengaluru-560 097.
Rep. by authorized signatory
Sivakumar Medam,
Managing Director.
Also at No.08-01, Ground Floor,
Near ABC Grammar School,
Macheria Road, Piduguralla,
Guntur District,
Andhra Pradesh-522 413.
(By Sri. T.R. Manjunathachar, Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
SCCH-2 3 C.C.10811/2021
7. Final Order : Accused is convicted
8. Date of such order for : 14.12.2022.
the following
:: JUDGMENT ::
This is a complaint against the accused under Sec. 200 of Cr. P. C. for the offence punishable under Section 138 of the Negotiable Instruments Act.
02. Brief facts of complainant's case is as follows:
2.1. It is contended that during period of 2017, the complainant herein was in search of a job and at that time, the accused herein was got introduced to the complainant. It is contended that the accused herein was working as an In-charge in NCBI sequencing facility company, but later he has tendered resignation to aforesaid job. The complainant herein has contacted the accused to get aforesaid job which was resigned by the accused, then, the accused has informed her that soon he is going to start a new company and he need a SCCH-2 4 C.C.10811/2021 scientist in said proposed company. The accused has assured the complainant that he would get her job in said company. Accordingly, that on 19.3.2017, the complainant herein was appointed as Scientist R&D in Chromgene Biotech Pvt. Ltd., on the basis of monthly salary of Rs 30,000/-. It is contended that accused has assured the complainant to take her in the Board of Director's list and give 5% of share in the company.
Accused has insisted the complainant to invest a sum of Rs. 5 lakhs in the company, and believing the words of the accused, she has transferred a sum of Rs. 4 lakhs to the current account of Chromogene in the month of June 2017 and Rs 1 lakh was deducted form the salary of the complainant.
2.2. It is stated that, on 1.1.2018, the complainant was promoted to the post of Director R&D on a monthly salary of Rs 35,000/-. In the month of September 2018, the salary of the complainant was increased to the SCCH-2 5 C.C.10811/2021 extent of Rs. 50,000/- until date of her retirement. Out of total salary of Rs. 13,60,000/-, the complainant has received Rs.7,05,000/- only and accused is liable to pay balance salary of Rs.6,55,000/- to her. It is contended that accused has failed to join the complainant in the list of Board of Director of the company as assured by him earlier, in spite of repeated request of the complainant.
2.3. It is contended that accused has failed to pay the monthly salary of the complainant regularly and therefore, the complainant had decided to resign the job. Accordingly on 5.12.2019, the complainant has submitted resignation to her job and accused has agreed to relieve the complainant from the job on 30.01.2020. The accused has agreed to pay the arrears of salary of Rs 6,55,000/- and investment of Rs. 5 lakhs along with interest at the rate of 1.5% till January 2020 in total Rs.7,32,500/- and loan and personal money of SCCH-2 6 C.C.10811/2021 the complainant in total Rs.3,44,700/- as agreed by the accused is in total Rs.17,32,200/-. The accused has agreed to pay aforesaid amount and accordingly, parties to the case have entered into an agreement. 2.4. In terms of agreement, on the very same day, the accused has issued a post dated cheque bearing No.000121 dtd:30.06.2021, for Rs.17,32,200/- drawn on Lakshmi Vilas Bank, Piduguralla Branch, Andhra Pradesh in favor of the complainant towards discharge of legal liabilities.
2.5. The complainant has presented the above cheque to bank on 27.07.2021 through her banker, SBI, Thindlu Branch. On presentation of above cheque, same was dishonoured and returned with an endorsement dated:
30/07/2021 stating that "Funds insufficient". Thereafter, the complainant has issued legal notice on 18.08.2021 through RPAD, as contemplated under Section 138 (b) of the Negotiable Instruments Act, 1881 (hereinafter SCCH-2 7 C.C.10811/2021 referred to as "the NI Act"), to the accused to make payment of the cheque amount, and the notice has been duly served on accused on 19.08.2021 and legal notice sent to the second address of the accused has been returned with an endorsement stating "refused". Despite due service of statutory the accused has not paid the amount covered under the cheque nor replied the notice. Hence, this private complaint.
03. Cognizance of the offence was taken on presentation of the private complaint and ordered to register the criminal case, as there were prima facie materials to proceed against the Accused.
04. On being served the summons, the accused appeared through her counsel and she was released on bail. Plea of the accused was recorded by explaining the substances of accusation. Accused has not pleaded guilty and claims to be tried. The Accused filed SCCH-2 8 C.C.10811/2021 application under Section 145 (2) of N I Act, seeking permission to cross-examine Complainant and to proceed in accordance with Law. Accordingly, the application is allowed and the Accused was permitted to cross-examine the Complainant/PW-1.
05. In support of her case, the complainant was examined himself as PW-1 in Pre-summons stage and documents were marked at Ex.P:1 to Ex.P:11. The accused has not cross examined Pw-1 in spite of sufficient opportunities. The accused and counsel for the accused have remained absent. Hence, cross- examination of PW-1 was taken nil.
06. Thereafter, this court has given an opportunity to accused to cross examine Pw:1 and allowed the application filed by him u/sec 311 Cr.P.C. However, he did not utilize the opportunity given by the court to cross examine Pw:1 and therefore, again the cross examination of Pw:1 was taken as nil.
SCCH-2 9 C.C.10811/2021
07. The accused was examined under Section 313 of Cr.P.C., by explaining the incriminating circumstances appearing in the evidence of the Complainant. The accused has denied the prosecution version in toto. Defence evidence also taken as nil and posted the case for judgment.
08. Heard arguments of learned counsel for complainant. Argument of accused is taken as nil. Following points that arise for my consideration;
POINTS
1. Whether complainant proves beyond all reasonable doubt that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
2. What order?
09. My findings to the above points are:
Point No.1 : In the Affirmative.SCCH-2 10 C.C.10811/2021
Point No.2 : As per the final order for the following;
REASONS
10. POINT NO.1: In proof of the complainant's contention, complainant herein was examined as Pw:1, in Pre-summons stage has deposed in consonance with the averments of the complaint.
11. In affidavit, Pw:1 has reiterated the averments of the complaint. In support of her oral evidence, the complainant has produced the agreement dated 30.08.2019 executed by the accused herein which is marked at ExP:7. The accused has agreed to pay the complainant the share capital and pending salary and loan, to the extent of Rs.17,32,200/- and it is evident from perusal of ExP.7. The contents of ExP.7 is not in dispute at all. The signature of accused appearing in ExP:7 is not in dispute at all. Sivakumar Medam is the Managing Director and Authorized Signatory of M/s SCCH-2 11 C.C.10811/2021 Chromogene Biotech Pvt. Ltd., and he has executed the said agreement on behalf of the company as per ExP:7.
12. Perusal of ExP:8-the appointment letter- Employment clearly reveals that the complainant was appointed as a Scientist R & D in the accused company with effect from 19.3.2017 and she was entrusted to manage the Microbiology and Molecular Biology lab operations. The quantum of salary of the complainant is shown as Rs.30,000/- per month in Ex.P.8. Thus, it is clear before the court that, the complainant has joined the company of the accused as scientist-R & D on 19.03.2017.
13. Perusal of Ex.P.9-the Revised Appointment letter/Employment dated:01.01.2018 clearly reveals that, subsequently after joining the Company of the Accused, she was appointed as the Director R & D with effect from 01.01.2018 with salary of Rs.35,000/-. The contents of Ex.P.8 and 9 are not in dispute at all. SCCH-2 12 C.C.10811/2021
14. The complainant has produced appraisal letter dated:01.09.2018 at Ex.P.10 and perusal of same discloses that, her salary was increased by the accused company to the extent of Rs.50,000/- with effect from September-2018.
15. The complainant has deposed that, she has submitted resignation to her post in the accused Company and to substantiate her contention, she has produced Ex.P.11, the letter dated:30.01.2020. The accused company has accepted the resignation letter tendered by the complainant and relieved from the incharge of the post on 30.01.2020.
16. Perusal of Ex.P.7 to 11 clearly discloses that, the complainant was working with the accused company and she had tendered her resignation to the post in the year 2020. Perusal of Ex.P.7 clearly discloses that, she had invested share to the extent of Rs.5,00,000/- in the accused company and accused has not paid her arrears SCCH-2 13 C.C.10811/2021 of salary. The authorized signatory of the accused company has executed Ex.P.7, agreeing to pay Rs.17,32,200/- and issued cheque in question towards discharge of liability, which is marked as Ex.P.1.
17. The cheque in question was presented by the complainant through her banker, which was returned with a memo dated:30.07.2021 stating 'funds insufficient' as per Ex.P:3. Hence, she got issued legal notice to accused through RPAD, which is produced at Ex.P.4. The postal receipts are marked at Ex.P.4(a,b). Ex.P.5 is the postal acknowledgment and perusal of same reveals that, statutory notice is duly served on accused. The notice sent to another address of the accused was returned unserved as refused as per Ex.P.6.
18. On perusal of the oral and documentary evidence placed by the complainant, it reveals that the complaint is filed well within time, in accordance with the SCCH-2 14 C.C.10811/2021 provisions of Negotiable Instruments Act. Moreover, there is no dispute with regard to taking cognizance of the offence punishable under Section 138 of N I Act.
19. The defence of the accused is that, he has not issued the cheque in question to the complainant. The accused has denied the entire story of the complainant while recording the plea and statement under Sec.313 of Cr.P.C. In the present nature of cases, the court has to determine whether version of complainant is true or the theory put-forth by the accused is true?
20. At the outset, an essential ingredient of Section 138 of N.I Act is that the cheque in question must have been issued towards legally enforceable debt. Under Section 118 of the Act, a presumption shall be raised regarding consideration, date, transfer, endorsement and regarding holder in the case of negotiable instruments. Even under Section 139 of the Act, a rebuttable presumption shall be raised that, the cheque SCCH-2 15 C.C.10811/2021 in question was issued regarding discharge of legally enforceable liability. These presumptions are mandatory provisions that are required to be raised in case of Negotiable Instruments.
21. Keeping in mind the position of law, let me deviate to appreciate the evidence of Pw-1. Firstly, in this case Pw:1 has not been cross examined by the accused. Hence, cross examination of Pw:1 was taken as nil. Despite sufficient time, the accused did not even cross examine Pw:1. The positive evidence adduced by Pw:1 has remained unchallenged and controverted.
22. To establish her case, the complainant has produced the documents executed by the accused as per Ex.P.7 to 10. The contents of these documents are not in dispute. The genuineness of signature of the accused appearing in these documents are not in dispute. Accused is a private company and Shivakumar SCCH-2 16 C.C.10811/2021 Madam is the Managing Director and authorized signatory of the company.
23. Added to this accused has even not adduced defence evidence to rebut the evidence of complainant. As per the guidelines laid down in AIR 2014 SC 2528 in case of Indian Bank Association Vs- Union of India, the case is posted for judgment.
24. The complainant has stated supra to substantiate the claim, has produced Cheque in question at Ex.P.1, which is said to have been issued by the accused in discharge of debt. There is no rebuttal evidence to disbelieve the evidence of Pw:1. Hence, plea of the complainant has to be believed.
25. Secondly, genuineness of signature of accused found in Ex.P.1 is not in dispute at all. The accused has failed to cross-examine the witness and it indicates that the accused has failed to rebut the presumption, which is in favour of complainant. As appreciated and SCCH-2 17 C.C.10811/2021 discussed supra, the complainant has proved by placing convincing evidence to show that, accused is due of payment of cheque amount.
26. In this connection it is not out of place to refer a decision reported in 2006 Crl. L. J. 3760 in case of Smt. Umaswamy Vs- K. N. Ramaiah; wherein the Hon'ble High Court of Karnataka has observed at para 4 of its judgment that;
"The cheque whether issued for payment of debt or as a security makes no distinction in law. The cheque is a negotiable instrument, it may be that sometimes the cheque is issued with a request on the part of the drawer to defer the presentation of the cheque for some time to enable the drawer to make payment by cash and take back the cheque or allow time to arrange funds for encashment of cheque. When the amount is not paid as per oral understanding the payee is well justified to present the cheque for encashment. The cheque even if it is issued as a security for payment, it is negotiable instrument and SCCH-2 18 C.C.10811/2021 encashable security at the hands of payee. Therefore, merely because the drawer contends that it is issued as security is not a ground to exonerate the penal liability u/s. 138 of the N. I. Act."
27. As observed in the above citation, it has to be presumed that, the cheque in question was issued by the accused to discharge the legally recoverable debt or liability. The accused can place rebuttal evidence so as to show that the cheque was not issued for consideration. As appreciated supra, accused has failed to put acceptable and satisfactory evidence to probabilise the defence. Therefore, there is no question of saying that the cheque was not issued for liability.
28. The service of notice on accused is not in dispute. Moreover, it is not the case of the accused that, statutory notice was not duly served on him or his address as mentioned in the notice is wrong. The accused has not replied the notice and it is fatal to SCCH-2 19 C.C.10811/2021 defence setup by him. It is not the case of the accused that, cheque was misplaced somewhere else. It is not the plea of the accused that, cheque was obtained under duress or undue influence or cheque was stolen by the complainant.
29. Despite availing sufficient opportunity, neither the accused nor her counsel appeared before the court to cross-examine P.W.1 to disbelieve the credibility of the witness. Considering all these facts, this court has closed the cross-examination and defence evidence of accused. Learned counsel for the accused even not submitted argument. In the light of the discussion herein above, I am of the considered opinion that the complainant has proved that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answer point No.1 in the affirmative.
SCCH-2 20 C.C.10811/2021
30. POINT No.2:- The Negotiable Instruments Act is a special Enactment, the provisions of the Act prevail over the general provisions contained in Code of Criminal Procedure. Therefore, keeping the relevant provisions of the Act in mind the sentence is to be passed. In the light of the reasons on the point No.1, I proceed to pass the following;
:: ORDER ::
The accused is convicted under Section 255 (2) of Cr.P.C., for the offence punishable under Section 138 of the Negotiable Instruments Act, and he is sentenced to pay a fine of Rs.17,37,200/- (Rupees Seventeen Lakhs, Thirty Seven thousand and Two Hundred only). In default to pay fine the accused shall undergo simple imprisonment for a period of three months.
Further, acting under Section 357(1)(a) of Cr.P.C., out of fine amount of Rs.17,37,200/- a sum of Rs.5,000/- (Rupees SCCH-2 21 C.C.10811/2021 five thousand only), shall be defrayed as prosecution expenses to the state.
Further, acting under Section 357(1)(b) of Cr.P.C., a sum of Rs.17,32,200/- (Rupees Seventeen Lakhs Thirty Two Thousand and Two Hundred only), amount on recovery of fine shall be paid as compensation to the complainant.
Bail bond of the accused and that of surety shall stand canceled.
Supply a free copy of this Judgment to the accused.
(Dictated to the stenographer through desktop, corrected by me and then pronounced in open court on this the 14th day of December, 2022).
(Smt. Shainey. K.M.) VI Addl. Small Causes Judge & ACMM, Bengaluru.
:ANNEXTURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT:
P.W.1 : Dr. Shruthi S.D. SCCH-2 22 C.C.10811/2021 LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Original Cheque dt:30.06.2021.
Ex.P.1(a) : Signatures of accused. Ex.P.2 : Pay in slip. Ex.P.3 : Cheque Return memo dt:30.07.2021. Ex.P.4 : Copy of legal notice dt:18.08.2021. Ex.P.4(a,b) : 2 Postal Receipts. Ex.P.5 : Postal Acknowledgment. Ex.P.6 : Returned Postal Cover. Ex.P.6(a) : Returned legal notice. Ex.P.7 : Agreement dt:30.08.2019. Ex.P.8 : Appointment letter-Employment. Ex.P.9 : Revised Appointment letter-Employment. Ex.P.10 : Appraisal letter. Ex.P.11 : Resignation accepting letter.
LIST OF WITNESSES EXAMINED BY THE ACCUSED:
- Nil -
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
- Nil -
(Smt. Shainey. K.M.) VI Addl. Small Causes Judge & ACMM, Bengaluru.