Bangalore District Court
Aged About 54 Years vs Kamal Sagar Road on 2 March, 2020
1
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 2nd DAY OF MARCH, 2020
PRESENT
Sri. K. GURUPRASAD, B.A., LL.B (Spl.)
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.57864/2018
Smt. Nurjehan Wahid - Proprietriex
W/o. Mr. Abdul Wahid,
COMPLAINANT Aged about 54 years,
M/s.KKRISS KROSS, No.3, Langford Road,
Bengaluru - 560 025.
(Reptd by her husband - Mr. Abdul Wahid)
M/s. Veeyem Interiors (I) Pvt. Ltd.,
Office No.1, Pawar House, Opp : RBI Quarters,
ACCUSED Kamal Sagar Road, Bhandup/Nahur (E), Mumbai -
400 042.
(Reptd by its Director - Mr. Vijay Menon)
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(K. GURUPRASAD)
XIV ADDL. C.M.M., BENGALURU
2
JUDGMENT
The present complaint is filed under Sec.200 Cr.PC for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The case of the complainant is that, the complainant is a reputed dealer of sanitary and building fittings and materials and the accused had purchased sanitary fittings under various invoices totally worth Rs.10,49,305/- from the complainant. It is further claimed that the accused had paid a sum of Rs.4,99,265/- in favour of the complainant and towards balance outstanding liability, the accused had issued three cheques bearing No.018185 dtd.20.6.2018 for Rs.2 lakhs, No.018186 dtd.25.6.2018 for Rs.2 lakhs and No.018187 dtd.30.06.2018 for Rs.1,36,493/- drawn on NKGSB Bank, L.B.S Road, Mumbai in favour of the complainant. When the complainant presented the said cheques for encashment through her banker i.e Syndicate Bank, Langford Town Branch, Bengaluru, said cheques came to be dishonoured on 21.6.2018, 27.6.2018 and 3.7.2018 for the reasons "payment stopped by the drawer". When the complainant got issued legal notice to the accused on 18.7.2018 to the accused by registered post. The accused has not paid the cheques amount in spite of issuance of said notice and as such the accused is guilty of the offence 3 punishable under Section 138 of N.I. Act. Hence this complaint.
3. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons. Accordingly, criminal case was registered against the accused and summons was ordered to be issued.
4. In pursuance of court process issued by this court, the accused appeared through his counsel and got enlarged on bail. Thereafter plea was recorded. The accused pleaded not guilty and claimed for trial.
5. In order to prove the case, GPA Holder of the complainant has examined himself as CW.1 (PW.1) and got marked Ex.P1 to P17 and closed complainant side of evidence. Thereafter, statement of the accused U/s.313 of Cr.PC was recorded. The accused denied incriminating materials in the evidence of complainant against him. Then, the accused examined himself as DW.1 and got marked Ex.D1 to D13 and closed his side of defence evidence.
6. Heard both sides. Perused the complaint, evidence on record and court records.
47. The following points arise for my consideration and determination;
1) Whether the complainant proves that the accused has issued three cheques in question in discharge of legally enforceable debt or liability as contended by her?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act?
3) Whether the complainant is entitled for the relief's as prayed in the complaint?
4) What Order?
8. The above points are answered as under;
Point No.1 to 3 : In affirmative, Point No.4 : As per the final order, for the following.......
REASONS
9. Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion.
510. As regard to limitation to file this complaint, it is clear from Ex.P1 to P9 that when the complainant presented the cheques in question to her banker within three months from the dates of said cheques, said cheques came to be dishonored and that when the complainant got issued statutory notice U/s. 138 of N.I. Act (within 30 days from the date of dishonour of said cheques) calling upon the accused to pay the cheques amount within 15 days from the date of said notice, said notice is served by registered post on the accused. No doubt, the accused has disputed service of notice on him but Ex.D2 to D4 purchase orders and revised purchase order and Ex.D5 to D9 invoices show that the address of the accused shown in said purchase orders and invoices is same as shown in Ex.P7-statutory notice. Hence, it can be concluded that Ex.P7 is sent by registered post at correct address and statutory presumption arises U/s.27 of General Clauses Act in this regard. However the accused has utterly failed to rebut said statutory presumption and to disprove service of notice on him. Therefore the present complaint filed after expiry of 15 days from the date of service of said notice and within 30 days thereafter is well within time.
11. As regard to legally enforceable debt or liability, in 2010 (11) SCC 441 - (Rangappa Vs Sri. Mohan), it is held that;
6" The presumption mandated by Sec.139 of the Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebutable 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, herein, there can be no doubt that there is an initial presumption which favours the complainant"..............."when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the presumption can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
12. If the facts and circumstances of this case are considered in light of above said principle of law, it is clear that it is not disputed by the accused during trial that Ex.P1 to P3-cheques are drawn on bank account of accused. Hence statutory presumption arises U/s.139 of N.I. Act in favour of the complainant that Ex.P1 to P3-cheques were issued in discharge of debt or liability. The burden of rebutting the said presumption by probable defence is on the accused.
713. It is the case of the complainant that the complainant has supplied goods to the accused totally worth of Rs.10,49,305/- under Ex.P12 to P16 invoices and that accused has made part payment of Rs.4,99,265/-, but failed to pay balance amount of Rs.5,50,040/- within reasonable time of seven days and as such the complainant has raised debit notes towards interest and bank charges on the said balance outstanding to the tune of Rs.1,67,079/-. It is further case of the complainant that towards discharge of said liability, the accused issued Ex.P1 to P3-cheques, which came to be dishonored. On the other hand, it is the defence of the accused that even though accused has placed purchase orders and revised purchase order as per Ex.D2 to D4, the complainant has only partly suppled goods as per Ex.D5 to D9 worth of Rs.10,35,000/-. It is further defence of the accused that the complainant company has not supplied materials promptly and in time, but supplied defective materials worth of Rs.11,200/- which is debited from the account of the complainant company. It is therefore defence of the accused that for that reason, the accused issued direction to his banker to stop payment of cheques. It is further defence of the accused that since the accused company has already paid payments for the materials which have already been supplied by the complainant to the accused, the accused is not liable to pay any amount to the complainant.
814. On careful perusal of evidence on record, it is clear that entire defence of the accused does not appear to be probable. It is because, even though the accused has contended that the complainant has not supplied materials promptly and in time and that the complainant had supplied defective materials worth Rs.11,200/-, the accused has not produced clear and cogent documentary evidence in proof of said contentions. Therefore said defence of the accused cannot be accepted.
15. At the same time even though the complainant has contended that the complainant has raised debit notes towards interest and bank charges on balance outstanding to the extent of Rs.1,65,079/-, there is nothing in Ex.P12 to P16 invoices to show that the complainant is entitled to charge interest @ 18% on the delayed payments. The complainant has also not produced any other documentary evidence in proof of legal right of complainant to charge such interest on delayed payments. In absence of such documentary evidence, the complainant is not entitled to charge any interest on the invoice amount on the ground of delayed payments by the accused.
16. CW.1 has admitted on page 5 of cross-examination that on 9.2.2018 the accused has paid to the complainant Rs.2,99,265/- through RTGs and that on 18.6.2018 the accused has paid to the complainant Rs.2 lakhs through RTGs. CW.1 has further admitted that the accused has paid 9 to the complainant Rs.5,36,479/- thorugh RTGs and that in all the accused has paid Rs.10,35,744/-. Similarly, DW.1 has admitted on page 4 of his cross-examination that the accused has paid Rs.2,99,265/- on 9.2.2018, that the accused paid Rs.2 lakhs on 18.6.2018 and that the accused has paid Rs.5,36,479/- on 17.10.2018. Above said oral statements of CW.1 and DW.1 are also supported by documentary evidence of Ex.D11 to D13-bank statements pertaining to bank accounts of accused in NKGSB Co- Operative Bank and YES Bank. In view of above said oral and documentary evidence on record that it can be concluded that the accused has in all paid Rs.10,35,744/- out of Rs.10,49,305/-. In other words, the accused has paid cheque amounts under Ex.P1 to P3-cheques.
17. The next question will be what is legal consequence of payments of Rs.10,35,744/- including cheques amount under Ex.P1 to P3-cheques. In other words, the question to be decided in this case is whether the complaint fails and deserves to be dismissed or whether the complainant is entitled to some more amount even after payments of Rs.10,35,744/- including cheque amounts. It is pertinent to note that the accused has paid Rs.2,99,265/- on 9.2.2018 while the accused has paid Rs.2 lakhs on 18.6.2018 I.e before issuance of Ex.P1 to P3-cheques. However the accused has paid Rs.5,36,479/- on 17.10.2018. The complainant got issued Ex.P7-notice by registered post on 10 19.7.2018 while Ex.P7 notice was received by the accused by registered post on 23.7.2018 as can be seen from Ex.P8- postal acknowledgement. Therefore cause of action to file this complaint arises for the complainant after expiry of 15 days from the date of service of said notice i.e from 8.8.2018 onwards. The present complaint is filed on 6.9.2018. This court by its order dtd.6.9.2018 ordered to issue summons to the accused. Therefore it is clear that the accused has paid Rs.5,36,479/- after expiry of 15 days from the date of receipt of Ex.P7-notice and after filing of this complaint.
18. In (2001) 1 SCC 631 (Rajneesh Aggarwal Vs Amit J. Bhalla), it is held that once the offence U/s. 138 of N.I. Act is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of sentence, it may have some effect on the Courts trying the offence. This decision is relied upon by the Hon'ble Supreme Court in its subsequent decision in 2018 (1) SCC 560 - (Meters and Instruments Private Limited and another Vs Kanchan Mehta) wherein it is held that offence U/s. 138 of N.I. Act is primarily in nature of civil wrong and proceedings primarily compensatory in nature.......court has jurisdiction under S.357(3) Cr.PC to award suitable compensation with default sentence under S.64 IPC with further powers of recovery under S.431 Cr.PC - Court may close proceedings if accused deposits amount as assessed by it having regard to cheque amount, 11 interest/costs, etc., within stipulated period - compounding at initial stage and even at later stage acceptable.
19. The principles of law laid down in the above said decisions are applicable to the present case on hand. No doubt, the accused has made payment of Rs.5,36,479/- towards cheque amounts in this case. However said payment is made by the accused not before expiry of 15 days from the date of service of Ex.P7-notice, but after filing of this complaint. Therefore, such subsequent payments will not absolve the accused of liability of criminal offence, though in the matter of awarding sentence and compensation, said fact can be taken into consideration. Once the period of 15 days from the date of service of statutory notice is over, the offence U/s. 138 of N.I. Act is complete and any subsequent payments will not exonerate the accused from such offence U/s. 138 of N.I. Act. No doubt, the accused can appear before the court and deposit the amount as assessed by the court having regard to cheque amount, interest and costs etc. In such case, court can close the proceedings even without consent of the complainant. In the present case on hand, the accused has made such payment out of the court, after filing of this complaint. Moreover, the accused has not sought this court to assess the amount to be paid to the complainant, having regard to cheque amount, interest and costs etc., nor has the accused offered to deposit such amount as assessed by this court, 12 requesting the court to close the proceedings in this case after such deposit. Therefore, when the accused has not offered to pay the amount as assessed by this court having regard to cheque amount, costs and interest etc., nor requested the court to close the proceedings in this case, the accused cannot be absolved of criminal liability in this case only because the accused has made some payment to the complainant out of court and without assessment of amount by this court. Therefore, even though the accused has made some payment towards cheques amount, the accused is still liable for the offence U/s. 138 of N.I. Act. Therefore, the defence of the accused that the complainant has filed this false case misusing Ex.P1 to P3-cheques even after payment of amount to the complainant cannot be accepted.
20. Counsel for the accused has contended that the complainant herself has not entered the witness box, but CW.1 who claims to be General Power of Attorney Holder of the complainant has entered into the witness box and no reason has been assigned for the complainant not entering the witness box and as such the present complaint is not maintainable. However, this arguments of the counsel for the accused cannot be accepted because it is settled principle of law that General Power of Attorney Holder of the complainant can file complaint and depose on behalf of the complainant in cases for the offence U/s. 138 of N.I. Act, if he has personal knowledge regarding the facts of the case. In 13 the present case on hand, CW.1 is none other than husband of the complainant and General Power of Attorney Holder. The complainant has produced Ex.P10- General Power of Attorney in support of this contention. Moreover, CW.1 has deposed during cross-examination that since he is looking after business of proprietary concern on behalf of complainant who is his wife, he is appearing in this case as General Power of Attorney of his wife and there is no other reason for the non-apperance of his wife. No suggestion has been put to CW.1 during cross-examination that CW.1 has no personal knowledge regarding facts of this case. Hence, it can be concluded that CW.1 who is authorized under Ex.P10- General Power of Attorney by the complainant to file this complaint and to give evidence on behalf of the complainant has legal authority to do so and has personal knowledge regarding facts of this case. Therefore, the contention of the accused to the contrary cannot be accepted.
21. In view of my above discussion, I am of considered opinion that the accused has utterly failed to prove or probabalize his defence and thereby to rebut statutory presumption in favour of the complainant. It clearly appears from the evidence on record that defence of the accused is only an afterthought without any basis. Unless and until the accused rebuts the statutory presumption with convincing and cogent evidence, burden cannot be shifted on the complainant. As discussed above, the complainant has 14 placed sufficient materials on record to establish her contention as put by her. The evidence on record is sufficient to accept the case of the complainant that accused had issued cheque in question towards discharge of legally enforceable debt or liability and the complainant has proved all the requirements of Sec.138 of N.I. Act, so as to constitute the offence against the accused. Therefore, Point Nos.1 & 2 are in affirmative and answered accordingly.
22. Point No.3: As discussed in connection with Point Nos.1 & 2, the complainant has proved her case as to commission of the offence punishable U/s.138 of N.I. Act by the accused. The punishment prescribed for the said offence is imprisonment for a period which may extend to two years or with fine. It is clear from evidence on record that the accused has already paid Rs.10,35,744/- to the complainant. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation and above said payment already made by the accused to the complainant and the rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R.Vijayan Vs Baby), etc., this court is of the considered view that it is just and desirable to impose fine of Rs.1,02,000/- and out of the said amount a sum of Rs.2,000/- has to be remitted to the State and the remaining amount of Rs.1,00,000/- is to be given to 15 the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 is answered in Affirmative.
23. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following......
ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instruments Act. The accused shall pay a fine of Rs.1,02,000/- for the offence punishable U/s.138 of N.I. Act. In default of payment of fine amount, the accused shall under go simple imprisonment for a period of two months.
By exercising the power conferred U/s.357(1) of Cr.PC., out of total fine amount of Rs.1,02,000/-, a sum of Rs.1,00,000/- is ordered to be paid to the complainant as compensation and Rs.2,000/- is ordered to be remitted to the State.
The bail bond of the accused stands cancelled. The cash security deposited by the accused is ordered to be continued till expiry of the appeal period.
Supply the free copy of this judgment to the accused forth with.
(Dictated to the stenographer, transcript thereof, computerized and print out taken by him is verified, corrected and then pronounced by me in open court on this the 2nd Day of March, 2020) (K. GURUPRASAD) XIV A.C.M.M., Bengaluru 16 ANNEXURE Witnesses examined for the complainant:
CW.1 : Mr. Abdul Wahid
Witnesses examined for the defence:
DW.1 : Sri. Vijay Kumar Menon
Documents marked for the complainant:
Ex.P1 to P3 : Cheques
Ex.P4 to P6 : Bank endorsements
Ex.P7 : Legal Notice
Ex.P8 : Postal acknowledgement
Ex.P9 : Postal receipt
Ex.P10 : General Power of Attorney
Ex.P11 : Registration Certificate
Ex.P12 to P16 : Invoices
Ex.P17 : Statement
Documents marked for the defence:
Ex.D1 : Invoice
Ex.D2 & D3 : Purchase Orders
Ex.D4 : Revised Purchase Order
Ex.D5 to D9 : Invoices
Ex.D10 : Ledger
Ex.D11 to D13 : Bank statements
(K. GURUPRASAD)
XIV A.C.M.M., BENGALURU