Bangalore District Court
Mr. Arijit Sarkar vs M/S. Sovereign Developers & on 5 March, 2020
IN THE COURT OF XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM34)
PRESENT: Sri KAMALAKSHA D, B.A., LLB.
XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 5th day of March, 2020.
C.C.No.54390/2017
COMPLAINANT : Mr. Arijit Sarkar,
Aged about 29 years,
S/o. Sri Biswajit Sarkar,
Flat 305, Sangeeta Topaz,
186/3, ITPL Main Road Cross,
Hoodi, Behind Kamat Yatrinivas,
Bengaluru 560 048.
(By Mr.Stanley Sam Advocate)
V/s
ACCUSED : 1.M/s. Sovereign Developers &
Infrastructure Ltd.,
Rep. By its Managing Director,
Mr. Prakash Kumar Singh
Having its Regd. Office at No.16,
II Floor, S.D. Complex,
NEW BEL Road,
Jaladarshini Layout,
Bengaluru - 560 054.
2. Mr. Prakash Kumar Singh,
Managing Director,
M/s. Sovereign Developers &
Infrastructure Ltd.,
No.16, II Floor, S.D. Complex,
New BEL Road,
Jaladarshini layout,
Bengaluru - 560 054.
3. Mr. Deepakk Kumar
Executive Director,
M/s. Sovereign Developers &
Infrastructure Ltd.,
2 C.C.No.54390/2017
No.16, II Floor, S.D. Complex,
New BEL Road, Jaladarshini layout,
Bengaluru - 560 054.
(Complaint against A3 dismissed
as per order dtd.30.5.2017)
(By Sri Thimmappa Naik Advocate)
1 Date of Commencement 05.03.2019
of offence
2 Date of report of offence 30.04.2019
3 Presence of accused
3a. Before the Court 26.07.2019
3b. Released on bail 26.07.2019
4 Name of the Complainant Mr. Manjunatha Rice Traders
5 Date of recording of 30.05.2017
evidence
6 Date of closure of evidence 15.02.2020
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused are found guilty.
JUDGEMENT
The Private Complaint is filed under Section 200 of Cr.P.C against the accused alleging that they have committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that on the basis of advertisement given in the media by the Accused company about availability of residential apartment in the name of "Sovereign Sonaa", the Complainant approached with a desire 3 C.C.No.54390/2017 to purchase an apartment. In furtherance of said transaction, the Complainant had paid booking amount of Rs.1,00,000/ on 1.6.2013 through cheque dtd.1.6.2013 bearing No.000001 drawn on HDFC Bank. Thereafter also Accused demanded to pay about 50% of consideration amount towards the said apartment. Therefore, the Complainant paid amount of Rs.3,200/ on 19.6.2013 in cash through receipt No.16686, another amount of Rs.350/ in cash through receipt No.16687, another amount of Rs.2,50,000/ through cheque bearing No.374997 drawn on UCO Bank bearing receipt No.16688, Rs.1,30,375/ through cheque bearing No.199280 drawn on Axis Bank, bearing Receipt No.16689, another amount of Rs.5,00,000/ on 11.11.2013 through cheque bearing No.158027 and final amount of Rs.4,06,196/ on 18.1.2014 through cheque bearing No.976945 drawn on HDFC Bank.
Therefore, the Complainant has paid amount of Rs.13,90,121/ in total towards the purchase of said apartment. The Accused being the owner of the said land, has executed an agreement of sale dtd.19.6.2013 in favour of the Complainant in respect of the apartment No.3 of 'A' Block. The construction work was begun in the month of January 2014. However, on enquiry it has come to the knowledge of the Complainant is that the Accused has not completed the work of apartment. 4 C.C.No.54390/2017
3. It is further submitted that on enquiry the Accused intimated to the Complainant that due to some technical reasons means nonsupply of the materials and equipments, he could not furtherize the construction work and he would start or resume the construction work in the first week of December 2014. Thereafter the Complainant visited the project office of the Accused in the month of December 2014. But, the Accused has not started the construction work. But again the Accused assured that he would start the construction work in the second week of April 2015. The Complainant again and again visited to see the progress of the construction work. However, the Accused with one or other pretext prolonged the work of construction.
4. The Complainant further states that finally, the Accused has issued two postdated cheques on 11.8.2016 for sum of Rs.10,00,000/and Rs.8,04,376/ cheque bearing No.243977 and 243978 drawn on Corporation Bank, Rajmahal Vilas Extn. 2nd Stage, dtd.25.9.2016 and 15.10.2016. The Accused intimated the Complainant that he has not got sufficient amount. Therefore, the Accused told with Complainant not to produce the cheques. Believing the words of the Accused, the Complainant did not present the cheque. However, on 5 C.C.No.54390/2017 18.10.2016 those cheques were presented for encashment. But both cheques were dishonoured for "funds insufficient" with memo dtd.19.10.2016. The Complainant approached the Accused and brought the intimation of bank for dishonour of cheque. 1St Accused is represented as Managing Director and 2nd Accused is the Executive Director. After dishonour of the cheques the Complainant has got issued demand notice to the Accused on 29.10.2016. The said notice was duly served on 5.11.2016. Inspite of service of notice, the Accused has not complied the demands of Complainant. The Complainant has submitted that the accused had issued the said cheques knowingly that without making sufficient funds in the account of the accused. Therefore, the Complainant has prayed to recover the amount as compensation and pass a sentence to the accused persons.
5. 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.
6. The substance of the accusation was framed, read over and explained to the accused in the language known to them by 6 C.C.No.54390/2017 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.
7. The Complainant got examined himself as PW1 and got marked 27 documents as Ex.P.1 to Ex.P.27. He also got examined 3 more witnesses from his end as PW2 to PW4.
8. After completion of crossexamination of the PW1, the Accused has not appeared before the court. In spite of issuance of continuous NBW to the Accused it was not executed. Therefore, the statement of the Accused reported u/Sec.313 of Cr.P.C. is dispensed with. Therefore, the Accused have not chosen to give their evidence.
9. I heard the arguments of Complainant side.
10. Now the following points that arise for the consideration of this Court are :
1. "Whether the Complainant proves the cheques issued by the accused persons dishonoured with an endorsement as "funds insufficient" and inspite of service of legal notice and demand the accused person failed to pay the cheques amount within stipulated period as such they have committed an offence punishable under Section 138 of Negotiable Instruments Act?"
2. What order ?7 C.C.No.54390/2017
11. 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
12. POINT No.1 - The evidence of the PW1 discloses that he decided to give complaint in Mahadevapura police station on 5.11.2015. Then he went to that station along with written complaint. But he has not given any police complaint. The copy of the complaint has not been produced. The evidence further indicates that nothing was prevented PW1 to despatch the complaint through postal facility. The Complainant produced the sale deed which shows that one Mr. Harish Kumar is the owner of the property. The PW1 says that the original sale deed of Ex.P6 is produced in the bank for loan purpose. The Complainant borrowed loan from HDFC Bank in the month of June, July 2013. At that time, he gave the original documents of the sale deed in the said bank. However, the Complainant has not made attempt to get the certified copy of the sale deed for the purpose of documentary evidence. Even after clearance of the loan, the Complainant did not obtain the original of Ex.P6. The signature appears in the Ex.P10 is not the signature of 2nd Accused as per the admission of the PW1. The contents of 8 C.C.No.54390/2017 Ex.P11 and Ex.P12 cheques are typed contents. The Ex.P11 and Ex.P12 cheques have 20 days of gaps between each other. The Complainant presented both cheques on same date i.e., 18.10.2016. Due to the instruction given by the Accused to produce the cheques after one month, the Complainant presented on that day. However, admittedly the Accused has not given written instruction to the Complainant to present the cheques. The disputed Ex.P11 and Ex.P12 cheques are given by 2nd Accused to the 1st Accused as per the admission of PW1. The 2nd Accused has not given the said cheques to the 1 st Accused on personal capacity. After dishonour of the cheque, the Complainant got issued demand notice to the Accused person.
13. The Complainant further says that 56 receipts are prepared for a sum of Rs.13,90,000/. The Accused denied that the Complainant has not produced receipts for having payment of the amount in 'apartment purchase transaction '. Admittedly, the Complainant has not taken any legal action against the Accused on the basis of Ex.P6 document. The evidence shows that the Complainant has remembered that he despatched demand notice on 17.7.2015. But it is not definite date 9 C.C.No.54390/2017 according to the PW1. The Complainant says that he obtained the disputed cheque on 11.8.2016. He has got covering letter for having receipt of cheque. But he has not produced it. Ex.P10 does not contain the signature of Accused. The 2 nd Accused is the signatory of the disputed cheque. The Complainant says that he has not issued demand notice to all the Accused. But he issued notice on 4.11.2016. Admittedly, the Complainant has not got any document or receipt to prove that on same date he issued the notice to the remaining Accused.
14. The Ex.P10 document is only one document to show that the Accused No.2 and 3 have issued the Cheques. However, the Ex.P10 does not contain the signatures of Accused No.2 and 3. Therefore, the suggestion of the Accused is that the Complainant has created the Ex.P10 according to his will and wish. However, the Accused person never denied the fact of issuance of Cheques. The PW1 further says that due to the intimation of the Accused about insufficient of funds in their account the Complainant did not present the Cheques in the month of September. The Ex.P16 document is an unregistered one. Ex.P15 document does not contain signature 10 C.C.No.54390/2017 of any person. The Complainant has not mentioned in the private complaint as well as notice that the 2 nd Accused intimated him not to present the Cheque on 5.9.2016. Another witness is examined for Complainant. He is a Bank Manager of Corporation Bank, Bengaluru branch. The PW2 says that the 1st Accused opened his account in Corporation Bank on 9.2.2013. The Account Extract of the Accused No.1 came to be marked through PW2. As on the date of presentation of Cheque, the account of the Accused was not balanced with sufficient amount to honour Cheque. Therefore, the evidence of PW2 proves that the account of the Accused was not balanced with sufficient amount.
15. PW3 and PW4 are also Bank Manager of HDFC Bank and Corporation Bank. PW3 says in her evidence that the disputed Cheques came to be presented for encashment on 18.10.2016. Next day the said Cheques were dishonoured for "funds insufficient". After dishonour of both Cheques, the HDFC Bank issued document regarding dishonour of the Cheques. The PW4 says that the Accused company opened account in his bank and he produced relevant documents which are came to be marked as Ex.P22 to Ex.P27. However, 11 C.C.No.54390/2017 the Accused has not chosen to challenge the oral evidence of PW2 to PW4. Examination means chief and crossexamination according to Sec.134 of Indian Evidence Act. Therefore, to fulfill the concept of evidence, there must be chief and cross examination. However, in the present case, the cross of the PW2 to PW4 was not recorded due to the failure of Accused, but not from the fault of witnesses.
16. The Complainant has produced 27 documents. Ex.P1 to Ex.P5 are receipts for payment of the amount by the Complainant to the Sovereign Developers, it is nothing but the name of the Accused company. The receipts indicate that the Complainant paid various amounts through Ex.P1 to Ex.P5 receipts towards the booking charge of the apartment. Therefore, the fact of payment of the amount with specific purpose is proved through Ex.P1 to Ex.P5. Ex.P5 is the agreement between parties pertaining to the apartment transaction. Ex.P7 is the email letter dtd.27.10.2015. There are 5 messages were forwarded through the Ex.P7 document regarding purchase of apartment. The Accused accepted the receive of the amount. Ex.P8 and Ex.P9 are the hard copy of Whatsapp message between parties on 14.10.2016. The said 12 C.C.No.54390/2017 text messages are also for purchase of apartment. Ex.P9 is the Certificate u/Sec.65(b) of Evidence Act. Ex.P10 is the letter given by the Accused company to the Complainant informing that the Accused company would maintain sufficient balance to honour the Cheque.
17. Therefore, the fact of issuance of two Cheques is proved. Ex.P11 and Ex.P12 are the disputed Cheques. These two Cheques contain the signature of 2 nd Accused. He being the Director of the Accused company, issued the disputed Cheques. Ex.P13 and Ex.P14 are the bank endorsements for dishonour of the Cheques. Ex.P15 is the demand notice. The Complainant has explained the reason for transaction and circumstances for issuance of disputed Cheques. Ex.P16 is the postal track. Ex.P17 is the account statement of Corporation Bank. In that bank the Accused have their account and the disputed Cheques are the Cheques of that bank. Ex.P18 is the Certificate issued by the HDFC Bank after dishonour of the Cheques. The later documents are ancillary documents to the case of the Complainant. Those documents indicate that the Accused have account in the Corporation Bank. After frequent requests the Accused have issued Cheques in the name of 13 C.C.No.54390/2017 Complainant to repay the booking amount of the apartment because they failed to comply the condition of transaction i.e., provide apartment. The name of the 3rd Accused is deleted on 30.5.2017.
18. Therefore, no case is pending against the Accused No.3. The 2nd Accused being the Director of the 1 st Accused, issued two disputed Cheques under capacity of 'authorized signatory'. Therefore, the 2nd Accused being the authorized person of the 1st Accused, issued Cheques in the name of Complainant for payment of the booking amount. The Accused have not tendered their evidence. Therefore, it may be said that the Accused have utterly failed to furnish rebuttal evidence.
19. To rebut the statutory presumption the Accused in a case of 138 of N.I. Act must provide credible, cogent and consistent evidence. But in the present case, the Accused have not made attempt to disprove the case of Complainant. Therefore, the case of the Complainant stands good against the Accused and it may be said that the Complainant has brought case against right person because, the Complainant made company of the Accused as 1 st person and Accused No.2 as 14 C.C.No.54390/2017 signatory to issue the Cheques on behalf of the Accused No.1. Therefore, the Complainant has complied the provisions of Sec.141 of N.I. Act. The Accused never denied the issuance of Cheques. But their contention is that the disputed Cheques are postdated Cheques, but they have not mentioned the purpose. Under such circumstances, the case is made out against the Accused through the evidence of the Complainant. Hence, this court has come to the conclusion that the Accused No.1 and 2 have issued the disputed Cheques for discharge of their liability means repayment of booking charge of the apartment. Hence, the Point No.1 is answered in the Affirmative.
20. 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 No.1 and 2 are hereby convicted for the offence punishable under section 138 of Negotiable Instrument Act by sentencing to pay fine of Rs.20,05,000/ (Rupees Twenty Lakhs and Five Thousand only). Out of which, Rs.20,00,000/ (Rupees Twenty Lakhs only) shall be paid as compensation to the Complainant in term of Sec.357 (1) of Cr.P.C and Rs.5,000/ (Rs. Five 15 C.C.No.54390/2017 Thousand only) shall be paid to the State Ex Chequer as fine. In default of payment of fine accused shall suffer simple imprisonment for a tenure of 3 months.
The bail bonds executed by the accused stands continued.
Office is directed to comply the Sec.363 (1) of Cr.P.C.
(Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 5th day of March, 2020) (KAMALAKSHA D), XXXIV ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. Arijit Sarkar P.W.2 Mr. Khasam P.W.3 Mr. Soumyadeep Gogai P.W.4 Mr. Amar Anand Koushik
2. Documents marked on behalf of complainant:
Ex.P.1 to Receipts Ex.P.5 Ex.P.6 Notarized copy of Agreement of sale Ex.P.7 Email correspondence Ex.P.8 & Hard copy of Whatsapp messages Ex.P.9 Ex.P.9(a) Affidavit of PW1 u/Sec.65 of Indian Evidence Amended Act Ex.P.10 Letter issued by the Accused company Ex.P.11 & Cheque Ex.P.12 Ex.P.11(a) & Signature of Accused Ex.P.12 (a) Ex.P.13 & Bank endorsements Ex.P.14 16 C.C.No.54390/2017 Ex.P.15 Office copy of legal notice Ex.P.16 Postal track Ex.P.17 Bank account statement Ex.P.18 Certificate u/S.2A of Bankers Books of Evidence Act Ex.P.19 Authorized letter Ex.P.20 Bank statement Ex.P.21 Xerox copy of Identity Card Ex.P.22 & Bank Account opening Forms Ex.P.23 Ex.P.24 Bank statement Ex.P.25 Certificate u/Sec.2A of Bankers Book Evidence Act Ex.P.26 Cheque book issued register Ex.P.27 Authorized letter issued by Corporation Bank,
3. Witnesses examined on behalf of Accused :NIL
4. Documents marked on behalf of Accused :NIL (KAMALAKSHA D), XXXIV ACMM, BENGALURU.