Bangalore District Court
M/S. Safalakar Build Tech Llp vs M/S. Trishul Concretes on 9 February, 2021
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Crl.Apeal No.527/2019
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU
Dated this the 9th day of February, 2021
-: P R E S E N T :-
Sri. RAJESHWARA
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.527/2019
BETWEEN:-
APPELLANTS 1. M/s. Safalakar Build Tech LLP
A Limited liability partnership
(ACCUSED - IN
concern by its Designated Partner
TRIAL COURT) :
Sri. Anand S.
2. Sri.Kirti Mehtha,
S/o.Late Kanti Lal Mehta,
Aged about 64 years,
No.36, Railway Parallel Road,
Nehru Nagar,
Kumara Park West,
Bengaluru-560 020.
3. Sri. Anand S.
S/o.Late Samba Murthy,
Aged about 36 years,
Designated Partner,
M/s.Safalakar Build Tech LLP
No.55, 1st Floor, 1st Main Road,
Nehru Nagar,
Bengaluru-560 020.
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Crl.Apeal No.527/2019
(By Sri. G.S.Venkata Subbar Rao,
Adv.)
/Vs/
RESPONDENT/ : M/s. Trishul Concretes
Products Ltd.,
(COMPLAINANT - Registered office at No.53,
IN TRIAL Dr.Ranga Road,
COURT) : Mylapore,
Chennai-600 004.
Regional Marketing Office at
G4 & G5 Mid Ford House,
No.1, Mid Ford Gardens,
M.G.Road,
Bengaluru-560 001.
Rep. By its Accountant,
Power of Attorney Holder
Sri. B.Sankar,
S/o. KBS Mani,
Aged about 40 years.
(By Sri. S. Shiva Prasad,
Advocate)
JUDGMENT
Appellants have filed this appeal U/s.374(3) of Cr.P.C., being aggrieved by the judgment of conviction and order of sentence passed in C.C.No.28657/2017 dated 10.1.2019 on the file of XXV-Addl.Chief Metropolitan 3 Crl.Apeal No.527/2019 Magistrate, Bengaluru (hereinafter referred as impugned judgment and order).
2. Parties to this appeal shall be referred as per their ranking before the trial court for the purpose of convenience and for better appreciation of their contentions.
3. In the memorandum of appeal, appellants have submitted that, trial court erred in not considering the fact that, there was no transaction between appellants and respondent. There is no legally dischargeble debt or liability under the bounced cheque. Trial court has not taken into consideration of the bank endorsement that "payment stopped by drawer". Trial court has erred in not considering the reply given to the legal notice issued by the complainant. Trial court has not taken into consideration the fact that complainant had not produced any documents in support of his claim. No 4 Crl.Apeal No.527/2019 sufficient opportunity was given to the appellants to establish their defence. Admissions elicited in the cross- examination of the complainant was not properly appreciated. For the said reasons, appellants have prayed to set aside the Impugned judgment of conviction and order of sentence.
4. Along with memorandum of appeal, appellants produced certified copy of impugned judgment of conviction and order of sentence passed by the trial court.
5. Heard arguments.
6. T.C.R. were called for reference in this appeal. 7 . Now, following are points arising for determination:
1. Whether in the light of evidence and material brought before the court, trial court is justified in 5 Crl.Apeal No.527/2019 convicting accused/appellants for the offence punishable U/s.138 of N.I.Act and sentencing accused for the said offence?
2. Whether interference of this court is necessitated?
3. What Order?
8. It is answered for the aforesaid points as under:-
Point No.1: In the Affirmative Point No.2: In the Negative Point No.3: As per final order below, for the following:-
REASONS
9. POINTS NO.1 & 2:- These points are taken together to avoid repeated discussions.
10. Brief facts of the complaint is as follows; 6
Crl.Apeal No.527/2019 Complainant carries on business of manufacturing and sale of ready mix concrete under the name "Coromandel Concrete Mix" brand. Accused No.1 is a limited liability partnership firm (LLP) carrying on the business as builder, promoter, developer and also contractor for construction of buildings for their clients in Bengaluru. Accused No.2 is the Chairman as well as partner and accused No.3 is partner in the accused No.1, firm. Accused purchased Coromandel brand ready mix concrete for their project site at Unishire Spacio at Arekere village from the complainant company on credit under running account from time to time. As on 31.7.2017, accused were due for a sum of Rs.20,33,300/- (twenty lakhs thirty three thousand and three hundred) to the complainant company. After repeated demands and requests made by the complainant, accused issued two cheques bearing No. 001015 dated 25.7.2017 for 7 Crl.Apeal No.527/2019 Rs.10,17,150/-(ten laksh seventeen thousand one hundred and fifty) and another cheque bearing No.001016 dated 25.8.2017 for Rs.10,16,150/- ( ten lakhs sixteen thousand one hundred fifty) in favour of the complainant. Complainant presented the said cheques which were dishonoured by the banker of the accused for the reason "payment stopped by drawer". After issuance of legal notice, instead of repaying bounced cheques amount, accused had given evasive reply to the said legal notice. Hence, complainant filed the complaint against the accused/appellants U/s.200 of Cr.P.C. for the offence punishable U/s.138 of N.I.Act.
11. Perused entire order sheets, complaint filed U/s.200 of Cr.P.C., for offence punishable U/s.138 of N.I.Act, examination in chief affidavit of complainant, plea of accusation, ingredients of exhibited documents Ex.P.1 to Ex.P.17. There is no procedural defect of any nature 8 Crl.Apeal No.527/2019 while conducting trial relating to private complaint registered for the offence punishable U/s.138 of N.I.Act.
12. So far as appreciation of evidence is concerned, Pw.1 has reiterated ingredients of the complaint in his affidavit. Ex.P.1/ complaint made it clear that for non-payment of bounced cheque amount, complainant has filed private complaint before the jurisdictional magistrate. Ex.P.2 is Board Meeting Extract. Ex.P.3 is certified copy of P.A. Ex.P.4 and Ex.P.5/cheques, Ex.P.6 and Ex.P.7/ Cheque Return Memos made it clear that, cheques issued by the accused to the complainant came to be dishonoured by the banker of the accused. Ex.P.8/copy of legal notice, Ex.P.9 to Ex.P.11/postal receipts, Ex.P.12 to Ex.P.14/ postal acknowledgments made it clear that, complainant issued legal notice to the accused calling upon them to pay the bounced cheques amount. Ex.P.15 is letter, Ex.P.6/ reply notice made it clear 9 Crl.Apeal No.527/2019 that, accused had given reply to the legal notice issued by the complainant. Ex.P.17/ certified copy of the statement of account made it clear that, there is transaction between complainant company and accused. With the help of sworn statement and contents of Ex.P.1 to Ex.P.17, complainant successfully discharged his initial burden of proof casts U/s.138 of N.I.Act. Thereafter, burden shifts on the accused as per presumptions coming into play U/s.118 and 139 of N.I.Act in the form of reverse onus on the accused to rebut presumptions.
13. Accused appeared before the court and enlarged on bail. There is no specific plea of defence filed by the accused. To rebut presumptions available on behalf of the complainant, accused neither cross-examined Pw.1 nor examined themselves as defence witnesses. No witnesses are examined on behalf of the accused. As 10 Crl.Apeal No.527/2019 there is no plea of defence filed by the accused, no specific defence is set up by the accused side.
14. It is not in dispute that, bounced cheques belong to the bank account of the accused. It is also not in dispute that signature appeared on the bounced cheques are the signatures of the accused No.2. Further it is also not in dispute that the said cheques were dishonoured by the banker as per bank memo.
15. Perused impugned judgment passed by the trial court convicting the accused/ appellants for offence punishable U/s.138 of N.I.Act. Trial court had taken into consideration entire materials available on record particularly evidence adduced by the complainant and contents of exhibited documents. Trial court rightly arrived for the conclusion that complainant proved case against accused/ appellants for offence punishable 11 Crl.Apeal No.527/2019 U/s.138 of N.I.Act. In the absence of any admissions in the cross-examination of the complainant, in the absence of any defence evidence, it is difficult to accept the contention raised by the appellants in the appeal that, they are not liable to make payment under bounced cheques.
16. Trial court by relying upon the law laid by Hon'ble Supreme Court of India in the judgment reported in AIR 2014 SC 2528 Indian Bank Association V/s. Union of India, Crl.P.No. No.8943/2010 M/s. Transgare Pvt.Ltd., V/s.Dr.R.Parvathreddy, in Rajesh Agarwala Case and Rangappa V/s. Mohan case, proceeded to pass impugned judgment.
17. Accused have not even produced any documents to show that, accused lodged any complaint 12 Crl.Apeal No.527/2019 against the complainant for misuse of cheques and for filing false complaint against them.
18. In the absence of any such documentary proof, it is difficult to hold that, accused are not liable to make payment under bounced cheques. Hence, accused are not eligible to get 'benefit of doubt'.
19. Compared reasons assigned by the trial court in the impugned judgment of conviction and order of sentence as discussed above with the allegations made in the memorandum of appeal as discussed above.
20. There are no grounds made out in the memorandum of appeal to interfere into the Impugned judgment of conviction and order of sentence.
21. So far as quantum of punishment is concerned, fine of Rs.20,83,000/- (Twenty lakhs eighty three 13 Crl.Apeal No.527/2019 thousand) was imposed for dishonour of two cheques for Rs.10,17,150/-(ten lakhs seventeen thousand one hundred and fifty) and Rs.10,16,150/-(ten lakhs sixteen thousand one hundred and fifty). In default of payment of fine, accused shall undergo S.I.for one year. Order of sentence is reasonable. There is no merit in the appeal. Order under appeal is sustainable in law. Hence, interference of this court is not necessary. Accordingly, point No.1 is answered in the affirmative and point No.2 is in the Negative.
22. POINT NO.3:- In view of findings on the above points No.1 and 2, this criminal appeal is devoid of merits and the same is liable to be dismissed by confirming impugned judgment of conviction and order of sentence. Hence, following order is made:
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Crl.Apeal No.527/2019 ORDER Invoking provisions of Section 386 of Cr.P.C., this Criminal Appeal filed U/s.374(3) is dismissed.
Consequently, impugned judgment of conviction and order of sentence dated 10.1.2019 passed in C.C.No.28657/2017 on the file of XXV- Addl.Chief Metropolitan Magistrate Court, Bengaluru is hereby confirmed.
Appellants/accused are hereby directed to appear before the Trial Court to deposit the fine amount or to serve the sentence.
Office is hereby directed to send back T.C.R. along with certified copy of this Judgment, forthwith.
(Dictated to the Judgment Writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 9th day of February, 2021.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.15
Crl.Apeal No.527/2019 9.2.2021 Judgment pronounced in the open court Vide separate judgment ORDER Invoking provisions of Section 386 of Cr.P.C., this Criminal Appeal filed U/s.374(3) is dismissed.
Consequently, impugned judgment of conviction and order of sentence dated 10.1.2019 passed in C.C.No.28657/2017 on the file of XXV- Addl.Chief Metropolitan Magistrate Court, Bengaluru is hereby confirmed.
Appellants/accused are hereby directed to appear before the Trial Court to deposit the fine amount or to serve the sentence.
Office is hereby directed to send back T.C.R. along with certified copy of this Judgment, forthwith.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.