Bangalore District Court
M/S. Shah Polymers vs Mr.Vijayalakshmi Plastic on 3 January, 2019
IN THE COURT OF LVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM-58)
PRESENT: Sri.KAMALAKSHA.D, B.A., LLB.
LVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 3rd day of January, 2019.
C.C.No.50003/2017
COMPLAINANT : M/s. Shah Polymers
A Registered partnership firm,
Having its registered office at
NO.114/C & 114/C1, 5th Main,
1st Cross, Yeshwanthpur
Suburb,
(Opp CMTI Service Road)
Tumkur Road, Bengaluru - 22.
Rep. by it's Accounts Officer,
Sri Rame Gowda
(By Sri K.A Ariga, Advocate)
V/s
ACCUSED : 1. Mr.Vijayalakshmi Plastic
No.S1/1, T.I.E. Phase -II,
Balanagar,
Hyderabad -500 037.
Rep by its Partner.
2 . Authorized Signatory
Vijayalakshmi Plastic,
181, 1st Main, 5th Cross,
Prakash Nagar,
Bengaluru - 560 021.
(By M/s. P Nehru & Associates,
Advocate)
1 Date of Commencement 31.03.2016
of offence
2 Date of report of 09.06.2016
offence
3 Presence of accused
3a. Before the Court 17.05.2017
3b. Released on bail 17.05.2017
2 CC.No.50003/2017
4 Name of the Complainant M/s. Shah Polymers
5 Date of recording of 08.04.2015
evidence
6 Date of closure of 09.08.2018
evidence
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused is found
guilty.
JUDGEMENT
The private complaint is filed under Section 200 of Cr.P.C against the accused alleging that the Accused have committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant are as follows :
The complaint shows that parties of the case are residents of Bengaluru. The Complainant is a partnership firm having manufacture of plastic raw materials in the name and style of Shah Polymers. The Accused is the partnership firm. The 2nd Accused is the Human Agency who represents the Accused company as Proprietor. The Accused had approached the Complainant for supply of plastic raw materials and raised invoice for Rs.31,69,650/-. The 2nd Accused being the authorized signatory, had issued a Cheque bearing No. 203541 for sum of Rs.17,58,884/- dtd.31.3.2016 drawn on State Bank 3 CC.No.50003/2017 of Hyderabad, Rajajinagr, Bengaluru. The Complainant presented the Cheque through his banker Development Bank of Singapura (DBS), Bengaluru branch. But the bank issued endorsement for "funds insufficient" on 16.4.2016. After that the Complainant had issued Legal Notice 11.5.2016 by calling upon the Accused to pay the amount. Inspite of service of notice, the 2nd Accused did not comply the demand. Therefore, the contention of the complainant that the accused knowingly issued the said cheque without making or arranging sufficient amount in his account. Therefore, he prays to convict the accused person and pass an order to give compensation.
3. The cognizance for offence was taken of my learned predecessor. The criminal case came to be registered against the accused. The summons was issued to the accused. The accused in obedience of the summons appeared before the Court and enlarged on bail.
4. The substance of the accusation was framed, read over and explained to the accused in the language known to him by the learned predecessor of this Court. The accused pleaded not guilty and claimed to try the case. Hence, the case was posted for complainant's evidence.
4 CC.No.50003/2017
5. The Accounts Officer of the Complainant got examined himself as PW-1 and got marked 10 documents as Ex.P-1 to Ex.P-10. On the other hand the accused examined himself as D.W.1 and no documents were marked from his end.
6. The statement as required under Section 313 of Cr.P.C. was recorded. The accused denied all the incriminating evidence appeared against him.
7. I heard the Arguments of both side.
8. Now the following points that arise for the consideration of this Court are :
1. "Whether the Complainant proves the cheque issued by the accused person dishonoured with an endorsement as "funds insufficient"
and inspite of service of legal notice and demand the accused person failed to pay the cheque amount within stipulated period as such he has committed an offence punishable under section 138 of Negotiable Instruments Act?"
2. What order ?
9. My answer to the above points are as follows :
POINT No.1 : In the Affirmative POINT No.2 : As per final order for the following;
REASONS 5 CC.No.50003/2017
10. POINT No.1 - The PW1 says that the Ex.P6 was issued by one Deepak Shah, the Managing Director of Complainant company. The Accused raised demand on 15.7.2015 to purchase of plastic items from the Complainant company. It is suggested to the PW1 that the Ex.P.1 is Excise Invoice, but not Sales Invoice. But the PW1 has denied it. The PW1 says that his company supplied materials to the Accused in the month of July 2015. It is suggested to the PW1 that the Complainant company facilitated the Accused to pay amount within 60 days from the date of transaction. But the said suggestion is denied. The disputed Cheque has been issued for payment of amount of Rs.7,00,000/- and add and other amount was paid by the Accused. The Ex.P.1 shows that the materials mentioned in that document were supplied to one company called Shivashakthi Industries, Hyderabad. But the PW1 says that those materials were supplied to that place through Accused. But the PW1 rectified by stating that the said materials were supplied only to Accused, but not to anybody. The suggestion of the Accused is that Shivashakthi Industry has paid amount of Rs.5,57,863/- on 25.11.2015. But the PW1 says that to confirm it, he need to verify the documents. The suggestion of the Accused is that the Cheque in dispute was issued as security. The evidence of the PW1 further shows that 6 CC.No.50003/2017 so-called receipt has to purchase of the property or materials has not been produced till end of evidence. Admittedly, the contents of disputed Cheque seems differently. The suggestion of the Accused is that the Accused paid by and large amount and he dues to pay only Rs.5,06,808/- only. But it is denied.
11. Coming to the documentary evidence, Ex.P.1 is the Invoice. The said document shows that the Accused company had purchased materials for worth of Rs.31,69,650/-. Ex.P.2 is the disputed Cheque for sum of Rs.17,58,884/- dtd.31.3.2016. Ex.P.3 is the xerox copy of the Cheque. Ex.P.4 is the demand notice dtd.11.5.2016. Ex.P.5 is the postal acknowledgment. Ex.P.6 is the authorization letter. Ex.P.7 is the partnership deed. Ex.P.8 is the consignment stock agreement. Ex.P.9 is the letter corresponded by the Accused company by acknowledging the balance amount to be paid to the Complainant company. The Ex.P.10 is the similar document as that of the earlier document of Ex.P.9.
12. The 2nd Accused examined himself as DW1. But after winding up of his evidence, he passed away. However, he had deposed in chief-examination that the Complainant company filed false case against him. His contention is that the 7 CC.No.50003/2017 disputed Cheque has been issued only for security purpose, but not any other purpose. The Complainant misused the said Cheque for unlawful gain.
13. The trustworthy of the DW1 is questioned in the cross-examination. The evidence of the DW1 shows that his company involved in the business transaction. Admittedly the Cheque in dispute is the Cheque of the Accused company. Then only suggestion questions are asked. But all the suggestion questions are denied. The Accused had not produced any document in his evidence. Therefore nothing is available that the disputed Cheque has been issued for security purpose. Therefore, the presumption is to be drawn against the Accused company presuming that the said company participated in business transaction with Complainant and in that event only the said Cheque was issued. The case against the Accused might be abated if his evidence is not completed. But death of Accused is reported after conclusion of evidence. Therefore, no adverse effect will be caused if conviction is passed against the Accused. Therefore, the Point No.1 is answered in the Affirmative.
8 CC.No.50003/2017
14. POINT No.2 : In view of discussion held in Point No.1, I proceed to pass the following :
ORDER Acting under Section 255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act by sentencing to pay fine of Rs.20,58,884/- (Rupees Twenty Lakhs Fifty-eight Thousand Eight Hundred and Eighty-four only). Since the death of Accused is reported and no other directors of the Accused company are available, the Complainant cannot collect the compensation amount. Hence, the matter is hereby closed.
(Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 3rd day of January, 2019) (KAMALAKSHA.D), LVIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri Rame Gowda
2. Documents marked on behalf of complainant:
Ex.P-1 Excise Invoice Ex.P-2 Cheque Ex.P-3 Xerox copy of Cheque Ex.P-4 Office copy of Legal Notice Ex.P-5 Postal acknowledgment Ex.P-6 Authorization letter Ex.P-7 Xerox copy of Partnership deed Ex.P-7 Postal reply, Ex.P-8 Consignment stockist agreement Ex.P.9 & Ex.P.10 Two Letters
3. Witnesses examined on behalf of Accused :
D.W.1 Sri Nityanandam
4. Documents marked on behalf of Accused : NIL (KAMALAKSHA.D), LVIII ACMM, BENGALURU.