Bangalore District Court
No.108 vs Under Section 138 R/W Section 142 Of N.I. ... on 13 January, 2016
In the court of the XXI Addl. Chief Metropolitan
Magistrate Bangalore City
DATED THIS THE 13th DAY OF JANUARY 2016
PRESENT: Sri. DHARMAGIRI RAMASWAMY
M.A., LL.M.
JUDGMENT
1. Sl. No. of the Case : C.C.No.28833/2007
2. The date of : 24.09.2007 commission of offence
3. Name of the : M/s IRIS Computers Ltd., Complainant No.108, Prestige Center Point Cunningham road Bangalore - 560 052, Represented by its Accounts Executive Sri.Bharamananda Reddy
4. Name of the Accused : 1. M/s. NETAGE SYSTEMS & SERVICES No.509, Veena Chambers Off.Clive Road, Masjid (East) Mumbai 400 009 R/by its Proprietor
2. Mr.Ashish Kumar Proprietor M/s. NETAGE SYSTEMS & SERVICES No.509, Veena Chambers Off.Clive Road, Masjid (East) Mumbai 400 009 ALSO AT Mr.Ashish Kumar 2 CC No.28833/2007 SCCH-25 Proprietor M/s. NETAGE SYSTEMS & SERVICES Satnani Building No.214 1st Floor, Room NO.6 RAK Road, Wadala (W) Mumbai 400 031
5. The offence : U/s.138 of Negotiable complained of or Instruments Act proved
6. Plea of the Accused : Pleaded not guilty
7. Final order : Accused is Convicted
8. Date of such order : 13.01.2016 JUDGMENT The Complainant has filed the complaint against the Accused under section 138 r/w section 142 of N.I. Act and section 200 of the Criminal Procedure Code.
2. The facts of the Complaint in brief are as follows:
The Complainant is a company established under companies Act. The Accused No.1 is a partnership firm represented by the Accused No.2 both are carrying computer printers business. The Accused No.2 approached the Complainant for the purchase of computer on behalf o the Accused No.1 worth of Rs.83,17,805/-. Accordingly the 3 CC No.28833/2007 SCCH-25 Complainant supplied the materials under invoice No.PUN TX1 703-063 dated 27.03.2007 for Rs.22,49,322/- and one more invoice No. MUM TX1 703-138 dated 30.03.2007 for Rs.60,68,483/- towards the discharge of the said liability in part. The Accused No.2 has issued a cheque bearing No.047229 for Rs.39,26,666/- drawn on Centurion Bank of Punjab Limited, Bandra Mumbai dated 18.05.2007. The Complainant presented the said cheque, the cheque was dishonored as PAYMENT STOPPED BY DRAWER on 10.08.2007. On 20.08.2007 the Complainant has issued a legal notice calling upon for alternative payment of the cheque amount. On 25.08.2007 and 09.09.2007 the Accused has replied to the said notice and denied the aberments made in the notice dated 28.08.2007. It is thus, the Accused has committed an offence punishable under section 138 of N.I.Act.
and prayed for legal action as well as compensation.
3. The cognizance taken and summons was ordered.
The Accused appeared through their counsel before this court and got bail, the Prosecution paper furnished to the Accused as per section 207 of Cr.P.C. The plea was recorded and read over, 4 CC No.28833/2007 SCCH-25 explained to the Accused. Accused pleaded not guilty and came to be trial.
4. In order to prove the case of the Complainant, he has examined its GPA as PW.1 and got marked 25 documents under Exs.P.1 to P.25 and closed their side. 313 statement of the Accused was duly recorded. The Accused denied the evidence of the Complainant and he himself examined as DW.1 and marked 20 documents under Exs.D.1 to D.20 and closed their side.
5. I have heard the arguments advanced by the learned counsel for the Complainant as well as the Accused.
6. The following points that arise for my consideration are as under:
1) Whether the prosecution/Complainant proves that, the Accused have committed for the offences punishable under section 138 of N.I.Act.?
2) To What order?
7. My findings on the above points are as follows:
Point No.1: In the Affirmative 5 CC No.28833/2007 SCCH-25 Point No.2: As per the final order for the following REASONS
8. Point No.1:
PW.1 stated in his examination-in-chief that, the Complainant is a company established under companies Act. The Accused No.1 is a partnership firm represented by the Accused No.2 both are carrying computer printers business. The Accused No.2 approached the Complainant for the purchase of computer on behalf o the Accused No.1 worth of Rs.83,17,805/-. Accordingly the Complainant supplied the materials under invoice No.PUN TX1 703-063 dated 27.03.2007 for Rs.22,49,322/- and one more invoice No. MUM TX1 703-138 dated 30.03.2007 for Rs.60,68,483/- towards the discharge of the said liability in part. The Accused No.2 has issued a cheque bearing No.047229 for Rs.39,26,666/-
drawn on Centurion Bank of Punjab Limited, Bandra Mumbai dated 18.05.2007. The Complainant presented the said cheque, the cheque was dishonored as PAYMENT STOPPED BY DRAWER on 10.08.2007. On 20.08.2007 the Complainant 6 CC No.28833/2007 SCCH-25 has issued a legal notice calling upon for alternative payment of the cheque amount. On 25.08.2007 and 09.09.2007 the Accused has replied to the said notice and denied the aberments made in the notice dated 28.08.2007. It is thus, the Accused has committed an offences punishable under section 138 of N.I.Act. and prayed for legal action as well as compensation.
9. In support of their oral evidence, they have filed 25 documents under Exs.P.1 to P.25. Ex.P.1 is the Complaint, Ex.P.1(a) is the signature, Exs.P.2 & P.3 is the copy of invoices, Ex.P.4 is the cheque, Ex.P.4(a) is the signature of the Accused, Exs.P.5 & 6 is the Bank endorsements, Ex.P.7 is the Copy of legal notice, Exs.P.8 to P.10 is the Postal receipts, Ex.P.11 is the UCP, Ex.P.12 is the returned postal letter, Exs.P.13 & P.14 is the returned postal cover, Exs.P.13(a) & P.14(a) is the Envelopes, Ex.P.15 is the copy of GPA, Ex.P.16 is the board resolution, Ex.P.17 is the reply, Ex.P.18 is the account statement, Ex.P.19 is the statement of accounts, Ex.P.19(a) to P.19 (d) is the relevant entries, Ex.P.20 is the invoice Letter dt.30.03.07, Ex.P.21 is the Invoice, Ex.P.22 is 7 CC No.28833/2007 SCCH-25 the Invoice, Ex.P.23 is the Tax invoice, Ex.P.24 is the Delivery note challan, Ex.P.24(a) is the seal and signature of Venus Cargo Movers, Ex.P.25 is the delivery note challan, Ex.P.25(a) is the Signature
10. Whereas, the Accused himself examined as DW.1.
DW.1 stated in his examination-in-chief that, it is true that, the Accused has purchased the computer material form the Complainant on credit basis. It is true that, he had purchased the material under 2 invoices worth of Rs.83,00,000/-. He has paid a part payment before the presentation of the cheque to the Complainant through DD and cheque worth of Rs.51,00,000/-. As per the directions of the Complainant company, material transferred worth of Rs.17,37,736/- gave to Micro Clinic. As on the date of the presentation of the cheque the Accused is liable to pay an amount of Rs.6,40,000/-.
11. Further stated that, after presentation of the cheque, the Accused has returned the material worth of Rs.1,27,400/-.
Further stated that, at the time of credit purchase he had given 2 blank cheque to the Complainant, he got acknowledgment for those cheque. As per Ex.D.1 on 04.04.2007 the Accused has 8 CC No.28833/2007 SCCH-25 paid an amount of Rs.4,50,000/- cheque bearing No.47226.
Again he has paid an amount of Rs.17,00,000/- to the Complainant through Savanth. Again he has made one more payment of Rs.3,49,322/- through DD as per Ex.D.3. On 07.05.2007 again Rs.2,00,000/- paid to the Complainant through DD under Ex.D.1. On 23.05.2007 two cheques worth of Rs.2,00,000/- and Rs.1,00,000/- paid to the Complainant through Rajesh Merukote as per Ex.D.4. On 25.05.2007 one more DD of Rs.1,00,000/- paid to the Complainant as per Ex.D.1. On the same day Rs.1,00,000/- cheque paid to the Complainant as per Ex.P.19. On 24.05.2007 the amount of Rs3,00,000/-will be received by the Complainant. On 25.05.2007 there was a payment made through cheque bearing 47062 it was under Ex.D.1. On 31.05.2007 one more payment of Rs.2,50,000/- paid through cheque bearing No.47070 under Ex.D.5. On 04.06.2007 the said cheque was realized. On 16.06.2007 the Complainant paid Pay order of Rs.5,50,000/- it reflects under Ex.D1(g). On 19.07.2007 the Complainant has made payment of Rs.7,00,000/- through cheque bearing 9 CC No.28833/2007 SCCH-25 No.47100 under Ex.D.6. On 05.07.2007 RS.1,500/- paid to the Complainant through cheque bearing No.47225.
12. Further stated that, on 19.10.2007 he returned the certain goods to the Complainant under Ex.D.10(a). Further stated that, as per Ex.D.12 he gave two blank cheques to the Accused. Thereby Rajesh Merukote received the said cheque and gave acknowledgment. As per Ex.D.15 the Micro Clinic System received material on the Accused as per directions of the Complainant. Thereby Micro Clinic System paid an amount of Rs.17,37,736/-. In turn on their transactions in between the Accused and the Complainant. There is no liability to pay any credit amount towards the Complainant and prayed for acquittal.
In support of their oral evidence, the Accused has filed 20 documents under Exs.D.1 to D.20 and closed their side.
13. I have heard the arguments advanced by the learned counsel for the Accused and the Complainant. The learned counsel for the Complainant filed written arguments as under:
1. The learned counsel for the Complaint submitted that, the Accused made credit 10 CC No.28833/2007 SCCH-25 purchases of computers worth Rs.83,17,805/- vide Tax invoice No.PUN TX1703-063 dated 27.03.2007 for Rs.22,49,322/- and Tax Invoice No.MUM TXI 703-138 dated 30.03.207 for Rs.60,68,493/- and towards the discharge of said liability in part the Accuseed No.2 issued cheque bearing No.047229 dated 18.05.2007 for Rs.39,26,666/- drawn on Centurion Bank of Punjab Limited, Bandra (West) Mumbai in favour of the Complainant.
2. The Complainant counsel presented the cheque with their banker Citibank Litd., Bangalore the cheque was returned/dishonore as "Payment stopped by the Drawer" and was returned by the banker on 10.08.2007. The Complainant sent a registered notice dated 20.08.2007 to the Accused bringing to their notice about the dishonor of said cheque on account of the reason "Payment stopped by the Drawer" and requested the Accused to make the payment of the said cheque amount within15 days from the date of receipt of the said notice. The notice was duly served on the Accused on 25.08.2007 the Accused has sent an untenable reply dated 06.09.2007 without 11 CC No.28833/2007 SCCH-25 making the payment of the cheque amount.
The Accused wanted to take advantage of the fact that there are two invoice of same amount and same number of laptops and the payment made against the invoice which is not shown in legal notice, complaint and affidavit evidence wants to link the said payment to the invoice for the same amount.
3. The Complainant counsel has filed affidavit evidence of the power of attorney holder of the Complainant company - PW.1 and got marked Exs.P.1 to P.25. The PW.1 was thoroughly cross examined by the Accused but nothing is illustrated from him.
4. Further the Complainant counsel submits that, the Accused has examined himself as DW.1 and got marked Exs.D.1 to D.20 and was cross examined by the Complainant.
5. The complaint counsel submits that, the Accused admits the placing of order for supply of materials under Exs.P.2 to P.3 and receipt of the materials under it.
12 CC No.28833/2007SCCH-25
6. The Complainant counsel submits that, the Ex.P.23 Tax Invoice MUMTX1703-137 dated 30.03.2007 for Rs.22,49,322/- was not included in the notice, complaint and in affidavit evidence as the payment was already received by the Complainant under Ex.D.2 for Rs.17,00,000/-, Ex.D.3 for Rs.3,49,322/- and Ex.D.4 for Rs.2,00,000/- which is also shown in Ex.P.19> The above payment Accused has also stated in his reply notice Ex.P.7.
7. Further the Complainant counsel submits that the Accused has admitted in his cross- examination that, the M/s. Venus Cargo Movers are his transporter. " I has authorized Venus Cargo Movers to collect the material from the Complainant the document sown now bears my signature and marked as Ex.P.20 and it is mentioned about 65 desktop, Ex.P.21 materials required for 60 desktops it contains the seal and signature of the Accused, Ex.P.22 is the letter dated 18.04.2007 for 110 desktop it bears the signature of the Accused". The Accused denied that, he has instructed the Complainant to deliver the material of 110 desktop to Venus Cargo according to my letter 13 CC No.28833/2007 SCCH-25 the complaint company have dispatch the materials to Venus Cargo and obtain the endorsement on it. I have accepted Ex.P.3 and I am not aware that, the materials mentioned in Ex.P.2 have been received by Venus Cargo Movers from the Complainant company. In Ex.P.2 it contains the seal of Venus Cargo Movers that they have acknowledged the material which I am unaware.
8. The Complainant counsel submits that, the Accused has admitted in his cross- examination that, the cheques given by him to the Complainant company are all are not honored but dishonored.
9. Further the Complainant counsel submits that, the Accused has admitted in his cross- examination that, he has issued two cheques as mentioned in Ex.D.12 and denied that the cheques were issued by theAccused towards the payment of Ex.P.2 and Ex.P.23 which are of same amount. The Accused admits that, there is mentioned in the invoice the paymnt within 30 days. The Accused admits that he maintains stock book and has transacted four times and I can produced all the documents 14 CC No.28833/2007 SCCH-25 before court. The Accused admits that, he has returned the stock after 5 months. The Accused admits that, he has not made payment by cash to the Complainant company. The Accused admits that, he has maintained the books of account relating to business transaction and he is IT assess and has not produced ledger book pertain to the Complainant company and also maintains stock book inward and outward books and admits that, he has not produced before the court but says he can produced the same. The Accused say that, he has transacted four times and can produce the same. The Accused say that, he has transacted four times and can produce all the documents before court. On instruction of the Complainant the stock were returned and admits that, he has not produced any documents in this regard. The Accused admits that, in the invoice it is mentioned that the payment in 30 days from the date of delivery and has not made the payment within 30 days time and also admits that, he has issued post dated cheque for Ex.P.2 has been dishonored.
15 CC No.28833/2007SCCH-25
10. The Complainant counsel submits that, the Accused has in his cross-examination says that, there were four transaction with the Complainant and have documents to show that, for placing of order with the Complainant. "I was placing order through email or over phone I have not produced any documents for placing of an order but I can produce the same".
11. The Complainant counsel submits that, the Accused has admitted that, in Ex.D.7 to D.11, has not mentioned the reason for return of the materials to the Complainant company. When a question was put to the Accused why the stock was returned to the Complainant he answered on the instruction of the Complainant company but I have not produced any documents before the court.
12. The Complainant counsel submits that, the materials supplied by the Accused to one of his customer M/s.Micro Clinic is nothing to do with the Complainant company but the Accused deposed that, he supplied on the instructions of the Complainant but fails to produce any document in this regard.
16 CC No.28833/2007SCCH-25
13. The Complainant counsel submits that, the Accused has admitted that, he has not produced any document to show that, he has sufficient funds in my account further admits that, he has not reconciled the statement of Complainant Company with his account which goes to show that, if the Accused produces the same it will go against him and not produced the same.
14. The Complainant counsel submits that, the Exs.D.2 to D.6 are the copies of DD which is taken into account as same is shown in Ex.P.19, Ex.D.7 to 11 are the debit note for return of materials. Ex.D.8 is the letter address to Venus Cargo for return of materials to Complainant company. Ex.D.9 is the letter address to Venus Cargo for return of materials to the Complainant company with an endorsement of the Complainant company for having received the materials on the same letter and Ex.D.10 pertain to return of materials under Ex.D.9.
15. The Complainant counsel submits that, the Accused admits the transaction Ex.P.2 and 17 CC No.28833/2007 SCCH-25 Ex.P.3 and disputes the receipt of materials under and placing of order under Ex.P.23 the Tax-Invoice MUMTX1703-137 dated 30.03.2007 for Rs.22,49,322/- for 65 desktop. The Ex.D.12 is the letter issued by the Accused to the Complainant along two cheques for Rs.22,49,322/- each, cheque No.047222 dated 28.04.2007 for Rs.22,49,322/- for 65 desktop and cheque No.047227 dated 02.05.2007 for Rs.22,49,322/- for 65 desktop which goes to sow that, the cheque bearing No.047227 dated 02.05.2007 for Rs.22,49,322/- for 65 desktop was issued towards Ex.P.23 Tax-Invoice MUMTX1703-137 dated 30.03.2007 for Rs.22,49,322/- as 30 days time allowed to make payment ends on 29.04.2007 hence cheque dated 02.05.2005 and cheque No.047222 dated 28.04.2007 for Rs.22,49,322/- for 65 desktop was issued towards Ex.P.2 Tax Invoice PUNTX1703-063 dated 27.03.2007 as 30 days time allowed to make payment ends on 26.04.2007 hence cheque dated 28.04.2007 was issued and no cheque was issued in respect of Tax invoice 18 CC No.28833/2007 SCCH-25 No.MUMTXI 703-138 dated 30.03.2007- Ex.P.3 for 110 desktops.
16. The Complainant counsel submits that, the payment and mateials returned by the Accused is taken into account in Ex.P.18 and Ex.P.19. Ex.P.18. A suggestion was put to PW.1 to know was the balance amount payable by the Accused he say Rs.78,72,403/- on the date of issue of cheque. The total liability after filing of complaint is Rs.28,15,515/- as shown in Ex.P.19 the Accused has not made any payment after filing of the Complainant but has returned the materials.
17. The Complainant counsel submits that, the materials under Tax Invoice PUNTX1703- 063 dated 27.03.2007 for Rs.22,49,322/- was received under Ex.P.2 and 2(a) the invoice on which the endorsement is made by Venus Cargo Movers on 28.03.2007 and also received under Ex.P.25 the delivery challan. The materials under Tax Invoice No.MUMTXI 703- 138 dated 30.03.2007 Ex.P.3 was received by the Venus Cargo covered under Ex.P.21 and Ex.P.22 the letter dated 10.04.2007 and 18.04.2007 issued by the Accused to the 19 CC No.28833/2007 SCCH-25 Complainant company. The materials under Tax-Invoice MUMTX1703-137 dated 30.03.2007 for Rs.22,49,322/- Ex.P.23 was received/collected by Venus Cargo Movers on the same date for which endorsement is made on the Ex.P.24 the Delivery Challan which is also covered under Ex.P.20 letter dated 30.03.2007 issued by the Accused to the Complainant company which makes clear that all the materials are received by the Accused. The Accused admits that he has received the materials of Ex.P.2 and Ex.P.3 and denies that the items were not delivered as shown in Ex.P.18 invoice dated 30.03.2007 and the Complainant has created invoice to claim higher amount/wrongful gain which is not correct. A suggestion was put to the Accused when was the first and last payment made by him to the Complainant company he says that I cannot say.
18. The complaint counsel submits that, as on 18.05.2007 the date of issue of cheque the Accused was liable to pay Rs.78,72,402/- to the Complainant the details of statement 20 CC No.28833/2007 SCCH-25 shown below and also mentioned in the Ex.P.18.
Debit Opening balance Rs.83,17,805.00 Service chargers MUM Rs. 2,598.00 Payment of Invoice Rs.22,49,322.00 Cheque dishonor charges Rs. 1,500.00 Payment of Invoice Rs.22,49,322.00 Service charges PUN Rs. 2,000.00 TOTAL Rs.1,28,22,547.00 Credit Bank receipt Rs. 1,500.00 Bank receipt Rs.4,50,000.00 (Ex.D.1(a)) Bank receipt Rs.22,49,322.00 Bank receipt Rs.20,49,322.00 Bank receipt Rs. 2,00,000.00 TOTAL Rs.49,50,144.00 Debit balance Rs.1,28,22,547.00 Less Credit Balance Rs. 49,50,144.00 Balance payable as on 18.05.2007 Rs. 78,72,403.00 As on date of issue of cheque
19. The Complainant counsel submits after filing of complaint as on 31.03.2008 the total outstanding was Rs.28,15,515/- the Accused 21 CC No.28833/2007 SCCH-25 was liable to pay to the Complainant as mentioned in the Ex.P.19.
20. The Complainant submits that, the Accused has produced the letter addressed to traders union Ex.D.20 the Accused mentions that, there was problems arisen in the whole deal and since the order was cancelled which goes to show that, the Accused was not in a position to pay the amount to the Complainant and started returning the materials without making payment of the materials received by him and making a false claim that he has not received materials under Ex.P.23.
21. The Complainant counsel submits that, the Accused has not produced his statement of account, books of account, ledger pertaining to the Complainant company which he says I can produced but not produced before the court to prove that, he is not liable to pay the amount as mentioned in the cheque. The Accused has not produced all documents as the real truth will come out. The Accused is the individual he should produce his IT returns in his support of his claim and failed produced the same. The Accused in his cross-examination he says that, 22 CC No.28833/2007 SCCH-25 he has documents to show that, he has not liable to pay placing of order and instruction given by the Complainant to return the stock but no document is produced by the Accused. The Accused admits that, he has not reconciled the same which also goes to show that, the Accused is aware that, he is liable to pay the said amount to the Complainant.
22. The Complainant counsel submits that, the Accused has not produce his bank statement to show that, he has sufficient balance in his account on the date presentation of cheque. The Accused has not produced the letter issued to the bank to prove why stop payment instruction was given to bank. The Accused in his reply notice or in his examination-in-chief has not stated the reason why letter is issued to the bank for stop payment of cheque and what is the date on which instructions is given to the bank for stop payment of cheque Ex.P.4 and reasons given to bank.
23. The Complainant counsel submits that, the Ex.D.1 is the Xerox copy of the bank statement which is not true copy or attested 23 CC No.28833/2007 SCCH-25 copy which is signed by person whose designation and department is not mentioned, the Accused has not assigned the reason why he has not produced the original bank statement apart for that it does not contain the certificate which is mandatory under banker books of evidence act hence court cannot look into.
24. The Complainant counsel submits the Accused has issued the cheque towards the discharge of the liability under Ex.P.2 and Ex.P.3 the presumption has to be drawn in favour of the Complainant as Complainant has proved the case beyond reason doubt that the Accused has committed an offence punishable N.I.Act. and prayed for conviction.
In support of his arguments the learned counsel for the Complainant relied decisions as under:
1. ILR 2013 Karnataka 4493
2. AIR 2010 SC 1898
3. ILR 2006(2) Karnataka 3105
4. ILR 2006(2) Karnataka 1730
5. AIR 2006 NOC 1311 Karnataka
6. AIR 2006 NOC 1420 Karnataka.24 CC No.28833/2007
SCCH-25 And prayed for conviction under section 138 of N.I.Act.
14. Whereas the learned counsel for the Accused filed written statement wherein stated that:
1. The accused counsel submits that the case of the complainant filed under section 142(a) of N.I. Act R/w 200 of Criminal Procedure Code is not maintainable as on the date of presenting of the cheque in question as well as on the date of filing of the complaint, the accused is not in due of an amount mentioned in the questioned cheque and as such the amount claimed under the disputed cheque is not legally enforceable debt.
Accused has also proved that the said cheque in question is a security cheque which has been misused by the complainant by contravening the condition president as mention in Ex.D.12.
2. The accused counsel submits that, it is the case of the complainant that, they have supplied computer Desktops to the accused through two invoice which is at Ex.P.2 ;and 25 CC No.28833/2007 SCCH-25 Petitioner-3 and value of both invoices is Rs.83,17,805/- further it is badly stated in the complaint that towards the part payment of above mentioned amount the Ex.P-4 cheque came to be issued by the accused and which got dishonored, as a mandatory requirement issued notice under proviso (b) of Section 138 of the Negotiable Instruments Act, the accused after receipt of the same has duly replied through a reply notice dated 6.09.2007 which is at Ex.P.17 by denying the claims of the complaint by giving a clear cut description of the payment made and in the said reply notice it has been clearly mentioned that as on the date of presentation of the cheque as per Ex.P.4, the accused was liable to pay an amount of Rs.6,40,019/- to the complainant, not as that of the amount which has been claimed in their mandatory notice which is at Ex.P.7.
3. The Accused counsel submitted that, even though the accused has given proper reply notice by disclosing actual fact, but the complainant without cross verifying reply notice with their accounts maintained at 26 CC No.28833/2007 SCCH-25 Bombay zonal office,t he complainant with an ulterior motive of extracting money which is not due from the accused, complainant has filed this complaint before this Hon'ble court.
4. The Accused counsel submitted that, the entire transactions between the accused and complainant has taken place at Bombay and no transaction between the accused and complainant's Bangalore Zonal office has taken place and accused transaction is no where related to Bangalore zonal office of the complainant and the cheque in question has been presented by the complainant at the Bangalore zonal office only with an intention to harass the accused.
5. The Accused counsel submitted that, during the cross-examination of PW1 at the initial stage itself it has been clearly elicited form the mouth of the PW.1 that" accused has not done any business with complainant's zonal office at Bangalore, further he had admitted that he was not aware of the actual debt of the accused on the date of presenting the cheque, further he has stated that he has not verified any documents to ascertain that is there any 27 CC No.28833/2007 SCCH-25 due from the accused for the amount mentioned in the cheque, further he answered that till the presentation of the cheque in question accused has not made any payment to the Bangalore zonal office, but accused has made all payments to the zonal office Bombay, further he answered that he is not having any personal knowledge about the transaction taken place between accused and complainant zonal office at Bombay". The aforementioned admissions clearly establishes that the person who has examined as PW1 is not aware of any of the transactions taken place between the accused and complainant zonal office at Bombay and he has not personally witnessed any of the transactions taken place between the complainant and accused zonal office at Bombay, which itself clearly establishes that the PW1 has lead his sworn statement, chief evidence without any personal information and the version of PW1 while deposing before this Hon'ble court clearly established that the PW1 is an incompetent witnesses as he has given evidence without information and said evidence of PW1 is not reliable as trust worthy.
28 CC No.28833/2007SCCH-25
6. The Accused counsel submitted that, before presenting the disputed cheque, accused has made payments to the complainant company to the tune of Rs.50,99,332/-, further accused has returned an material worth of Rs.8,39,228/- on 4.8.2007, further as per the direction of the complainant company through their representative Harshad Bhadra and Rajesh Mirkute the accused has transferred the computer Desktops to MICRO CLINIC who is also a customer of complainant company and the cost of the material is Rs.17,37,736/-, the MICRO CLINIC after receipt of the said materials form the accused, Micro Clinic has made a payment to the complainant company on behalf of the accused to the tune of Rs.17,37,736/- by way of two cheques which are reflected at Ex.P.19(a) for Rs.6,36,168/- and as per Ex.P.19(b) for Rs.11,01,568/-. But during the course of ce of PW1 he has denied the said fact of transfer of material to Micro Clinic and credit of the said amount of Rs.17,37,736/- from Micro Clinic to the complainant company has been suggested to the PW1, but the PW1 has denied the said transaction by saying that they have not 29 CC No.28833/2007 SCCH-25 directed accused to transfer afore mentioned materials to the Micro clinic and also denied the receipt of payment from Micro Clinic even though same has been find place in Ex.P.19(a) & (b). For the said reason accused has filed an application u/s.91 Cr.P.C. asking the details of two payments reflecting in the statement of ExP.19 with respect to entries reflecting at dated 11.7.2007 & 12-07-2007 regarding the receipt of two payments by way cheques credited in the account of accused maintained by the complainant at Ex.P.19. The complainant soon after filing of the said application has lead further chief evidence on 23.06.2014 by admitting the receipt of the Rs.17,37,736/- by way of two cheques as per Ex.P.19(a) and (b) and which itself establishes that PW1 has given evidence without knowing any facts as well as without application of mind.
7. The Accused counsel further submit that, on 4.8.2007 the accused has returned computer Desktops worth of Rs.8,39,228/- and on 19.10.207 Rs.1,27,400/- to the complainant through a debit note and the 30 CC No.28833/2007 SCCH-25 material received by the complainant company as per Ex.D-7 and D-10 and the said fact of returning the materials to the complainant company has been suggested to the PW1, but return of the material vide ExD7 has been disputed by PW1, but the said fact of return of materials has find place in Ex.P.19 at entry dated 31.12.2007 for an amount of Rs.7,92,054/- i.e., towards the debit note at Ex.D7 after deducting tax of Rs.52,074/-. Further Pw1 has denied the receipt of material through ExD-10 and 11, but the said fact of return of materials has find place in ExP-19 at entry dt.31.12.2007. The accused with intention to ascertain the details of the credit note entries find place in Ex.P.19 at the entry dt.31.12.2007 has filed application Under section 91 of CrPC, asking the complainant to produce the copies of the credit note to ascertain the dates on which the materials has been returned as complainant has shown materials return date as 31.12.2007 instead of 4.08.207 for ExD-7 & 19.10.2007 for ExD-10 & 11, soon after filing of the said application PW1 has been recalled for further chief examination on 23.6.2014 and PW1 has 31 CC No.28833/2007 SCCH-25 admitted the receipt of material through Ex.D- 7 as per the entry at ExP.19(c) and also admitted the receipt of materials mentioned at ExD-10 & 11 as per ExP19(d) and the said admission clearly establishes that on the one hand Pw1 disputes the return of the materials through ExD-7 & Ex.D-110, 11 and thereafter he himself has admitted the receipt of the materials as per Ex.P.19(c) & Ex.P.19(d) and which itself establishes that Pw1 has given evidence without knowing any facts as well as without application of mind.
8. The Accused counsel submitted that, even though accused has clearly stated in the reply notice that he has made payment to the complainant and also returned materials, and also mentioned that he is only due of Rs.6,40,019/- to the complainant company as on the date of presenting of the said cheque, but the complainant even after the receipt of the reply notice without disclosing any accounts of the accused in the complaint and also without mentioning actual balance of the accused in the complaint has filed the present complainant without producing any 32 CC No.28833/2007 SCCH-25 documents except invoices and which itself clearly establishes that complainant has approached this Hon'ble court with unclean hands with an ulterior motive to enriching their company by way of false accountings and false claims.
9. The Accused counsel submitted that, ExP-4 i.e., cheque in question is one of the security cheque given to the complainant company while placing the orders and the said cheque along with another cheque bearing No.047228 has been issued to the complainant company with a covering letter which is at ExD-12 and the said two cheques are the black cheques without mentioning the date and amount and only by mentioning payee name and the same is issued as security with a condition precedent as mentioned in ExD-12 at last Para that is " in case IRIS delivers more goods to our organization, in future transactions this cheque could be utilized for transactional payments between the two organizations with written confirmation from our office". The aforementioned words clearly indicates that complainant can use ExP-4 i.e., security 33 CC No.28833/2007 SCCH-25 cheque only after getting written confirmation from accused, but the complainant by violating the condition precedent as mentioned in ExD12 has misused the security cheque, with an ulterior motive of cheating the accused, even though the accused is not liable to pay the said amount. On looking into the ExD-13 which is a facsimile Xerox copy of the disputed cheque endorsed by complainant employees by name Rajesh Mirkute.
10. The Accused counsel submitted that, in Ex.D-12 it has been mentioned that "SINCE THE ABOVE DESKTOPS BEING DELIVERED TODAY ON 30TH DAY OF MARCH 2007 AT 9.00 P.M. ', but in the said sentence the word "BEING DELIVERED' has been used as the material was suppose to be delivered at the time mentioned, but as per afore said sentence in ExD-12 the materials were not delivered to the accused. If at all materials would have been delivered to the accused by the complainant, then the complainant would have produced the authorization letter issued to complainant company to deliver 65 & 65 desk tops to Venus Cargo Movers. As Ex.P-20 the 34 CC No.28833/2007 SCCH-25 complainant has produced only one authorization letter which has been issued to the complainant to deliver only 65 desktops to the Venus cargo movers i.e. materials supplied as per ExP-2, which itself clearly establishes that the complainant has not supplied another 65 desktops as per the false claim made under forged invoice produced at ExP-23.
11. The learned counsel for the Accused admitted that, complainant has supplied materials to the accused as per ExP-2 and P-3 for a total sum of Rs.83,17,805/- and the accused after receipt of the same has made several payments to the complainant company on various dates as under:
(a). On 4/4/2007 accused has made payment of Rs.4,50,000/- to the complainant as per ExD1(a).
(b). On 4/5/2007 accused has made payment of Rs.17,00,000/- by way of D.D. as per ExD2.
(c). On 4/5/2007 accused has made payment of Rs.3,49,322/- to the complainant as per ExD3.35 CC No.28833/2007
SCCH-25
(d). On 7/5/2007 accused has made payment of Rs.2,00,000/- to the complainant as per ExD1(c).
(e). On 23/5/2007 accused has made payment of Rs.2,00,000/- and Rs.1,00,000/- through two cheques total amount of Rs.3,00,000/- as per ExD4.
(f). On 26/5/2007 accused has made a payment of Rs.6,00,000/- by way of cheque and same has been encashed as per ExD1(c).
(g). On 31/5/2007 accused has made a payment to the complainant of Rs.2,50,000/- as per ExD5.
(h). On 16/6/2007 accused has made a payment of Rs.5,50,000/- way of pay order and same has been reflected as per ExD1(g).
(i). On 19/7/2007 accused has made payment to the complainant for a sum of Rs.7,00,000/- as per ExD6 and the said cheque got encashed as per entry at ExD1(h).
The Accused counsel submits that, the Accused has made a payment of
Rs.50,99,332/- to the complainant prior to presentation of the cheque at shown in Exs.P- 1,2,3,4.
Further submitted that,
a) As per ExD-7 debit note, material worth of Rs..8,39,228/- has been returned on 4/8.2007 36 CC No.28833/2007 SCCH-25 i.e. before presentation of the cheque i.e., ExP-
4.
b) As per ExD10 and 11 the accused has returned the materials worth of Rs.1,27,400/0 to the complainant after issuance of reply notice by the accused.
In total accused has returned materials to the complainant for worth of Rs.9,66,628/- as per ExD7,10 and 11.
Further the Accused counsel submitted that,
a) As per Ex.D.19 material worth of Rs.17,37,736/- has been transferred to Micro Clinic as per the directions of the complainant company and Micro clinic has made the payment for the said materials on behalf of accused to the complainant in two instalments for Rs.6,36,168/- and Rs.11,01,568/- and the receipts of the said payments by the complainant has been reflected at ExP19(a) and (b).
The accused counsel submits that, the amount mentioned the payment at PART-I to the tune of Rs.50,99,322/-, materials returned worth of 37 CC No.28833/2007 SCCH-25 Rs.9,66,628/- along with payment made by the micro clinic of Rs.17,37,736/- it will come to Rs.78,03,686/- i.e. the payment which has been made by the accused to the complaint company towards the materials supplied as per Exs.P-2 & P-3.
Total amount mentioned in Exs.P-2 & P.3 and is of Rs.83,17,805/-. Where as the Accused made payment of Rs.78,03,626/- then the balance will be Rs.5,14,119/- will be payable by the accused to the complainant.
12. The learned counsel for the Accused further submitted that in the reply notice the accused has contended that he is only due of Rs.6,40,019/- to the complainant. But after issuance reply notice, the accused has returned the materials as per ExP10 & 11 dated 19.10.2008 worth of Rs.1,27,400/- and if this amount is deducted from the amount mentioned in the reply notice i.e. Rs.6,40,019/- then the balance will come to Rs.5,12,619/- and tot hat the bank return charges of Rs.1500/- mentioned at ExP-19 in the debit column at 4th entry is added then the 38 CC No.28833/2007 SCCH-25 balance of the accused to the complainant company will come to Rs.5,14,119/-.
13. Further submitted that, accused has clearly established before this Hon'ble court with a cogent evidence that on the date of presentation of the disputed cheque at ExP-4, accused is only due of Rs.6,40,019/- to the complainant and not the amount of Rs.39,26,666/- as mentioned in the cheque.
14. The Accused counsel submitted that, as per the complainant the entire transaction is pertaining to only two invoices and towards the same the accused has made payment to the turn of Rs.5,14,119/- and the said fact has been established by the accused during the time of cross-examination of PW-1 and by that time PW-1 has ascertained that their claim has been disproved and with an intention to prove their claim, complainant has introduced one fake invoice as per ExP-23 even though complainant has not supplied any materials to the accused and the said document come to be produced after disclosing the defense of the accused and the said ExP-23 would have really in existence 39 CC No.28833/2007 SCCH-25 during the time of presenting the disputed cheque or while filing the complainant then it would have find place in the notice or in the complaint or in the chief evidence affidavit of PW1, but there is no recital of the same anywhere and which itself clearly establishes that the said document i.e.Ex.P.23 is created for the purpose of this case.
15. The Accused counsel submitted that, in the reply notice accused has given clear explanation regarding the payment made and also disclosed that he is due only to the tune of Rs.6,40,019/- on the date of presentation of the cheque. But the complainant even after receipt of the reply notice complainant has nowhere in the complaint has mentioned regarding the supply of materials through Ex.P.23 and if at all the complainant has supplied the materials as per ExP-23, then soon after receipt of the reply notice as per ExP-17, complainant would have given rejoinder notice or he would have mentioned regarding the said transaction in their complaint filed before this Hon'ble court and which itself clearly establishes that the said 40 CC No.28833/2007 SCCH-25 document produced at ExP-23 & 24 is a concocted documents created by the complainant for the purpose of this case and to suit their claim even after disclosure of the defense of the accused.
16. Further submitted that, as per ExP-2 & P- 3 complainant has supplied total 235 computers to the accused through Venus Cargo Movers as per the authorization letters which are at ExP-20, P-21 & Ex.P.22 (i.e. for 235 computers) and same has been admitted by PW-1 during the course of cross- examination which was recorded before this Hon'ble court on 17.11.2015 which itself clearly establishes that there is a order for 235 computers as per ExP-2 and P-3 and same has been supplied through ExP-20, P-21 & P-22. There is no document produced by the complainant to show that to whom the materials mentioned at ExP-23 i.e. disputed invoice has been delivered and which itself clearly establishes that complainant has created ExP-23 & 24 for the purpose of this case even though there is no materials has 41 CC No.28833/2007 SCCH-25 been supplied to the accused as per ExP- 23&P24.
17. The Accused counsel submitted that, on the date of presentation of the cheque i.e. ExP- 4 accused was due only a sum of Rs.6,40,019/- to the complainant and after issuance eof the reply notice accused has returned some computer Desktops to the complainant on 19.10.2007 as per ExD-10 & D-11 and after deducting the same the accused is liable to pay only an amount of Rs.5,14,119/- to the complainant.
18. Further submitted that, on the date of presentation of the chque for Rs.39,26,666/- i.e.ExP-4, the accused is due only a sum of Rs.6,40,019/- and as such the amount which has been mentioned in the cheque is not a legally enforceable debt and to that effect accused has given clear reply as per ExP17 and based on the afore mentioned facts the case of the complainant is not maintainable.
19. The Accused counsel submitted that, complainant has not examined any of the employees of their Bombay Zonal office who 42 CC No.28833/2007 SCCH-25 were looking after the affairs of the complainant and accused transactions taken place at Bombay (i.e. Harshad Bhadra & Rajesh Mirkute employees of the complainant company at Bombay office and who have signed on all the documents) and complainant has examined PW.1 who is not having any knowledge regarding the transactions taken place between the complainant Bombay zonal office and the accused and Pw-1 has admitted said fact during the course of cross- examination and the said admission of the witness clearly establishes that he is a incompetent witness and his evidence cannot be reliable without being the examination of the actual person who has witnessed the transaction or the office in charge of the Bombay Zonal office and prayed for dismiss of the complaint and prayed for acquittal. In support of their arguments decisions reported as under:
1. (2014) Supreme (SC) 278 (1-10)
2. (2013) Supreme (SC) 130 (11.22)
3. (2006) Supreme (SC) 561 (23-40)
4. (2010) Supreme (SC) 428 (41-53)
5. (2009) Supreme (Kar.) 682 (54-62) 43 CC No.28833/2007 SCCH-25
15. On perusal of the oral and documentary evidence of the Accused and the Complainant there was no dispute regarding the purchase of computer. The Accused admitted in his examination-in-chief that, he has purchased the computer worth of Rs.83,17,805/-. Whereas the Accused perused Exs.D.1 to D.6 and stated that, he has made certain payment to the Complainant in regard to the purchase of computer under various modes. Further admitted that, as on the date of the presentation of the cheque there was a credit balance of Rs.6,40,000/-. The mode of payment and return of goods made by the Accused are as under:
Mode of Under
Date Amount
payment Exhibit
04.04.2007 4,50,000/- D.D Ex.D.1(a)
04.05.2007 17,00,000/- D.D Ex.D.2
04.05.2007 3,49,322/- D.D Ex.D.3
07.05.2007 2,00,000/- Cheque Ex.D.1(c)
23.05.2007 3,00,000/- Cheque Ex.D.4
26.05.2007 6,00,000/- Cheque Ex.D.1(c)
31.05.2007 2,50,000/- Cheque Ex.D.5
16.06.2007 5,50,000/- Pay order Ex.D.1(g)
19.07.2007 7,00,000/- Cheque Ex.D.6
Total 50,93,322/- Exs.D.1 to
D.6
04.08.2007 8,39,228/- Material Ex.D.7
returned
44 CC No.28833/2007
SCCH-25
09.10.2007 1,27,400/- Material Exs.D.10 &
returned D.11
Total 9,66,628/- Exs.D.7,
D.10 & D.11
09.07.2007 6,36,168/- Amount Paid Ex.D.19
12.07.2007 11,01,568/- by Micro Clinic
Total 17,37,736/-
16. Ex.P.19 reveals that, as per directions of the Complainant the Accused returned material worth of Rs.17,37,736/- to Micro Clinic System. PW.1 who is the authorized person of the Complainant company admitted in his cross-examination that, ªÀÄÄRå «ZÁgÀuÉAiÀÄ ¥ÀæªÀÄt¥ÀvÀæzÀ £Á®Ì£É RArPÀÉAiÀÄ°è ºÉýgÀĪÀAvÉ 2 E£ïªÁAiÀiïì gÀÆ.83,17,805/- ¨É¯É ¨Á¼ÀĪÀ GvÀà£ÀßU¼ À À£ÀÄß ºÉÆgÀvÀÄ¥Àr¹ ¨ÉÃgÉ AiÀiÁªÀÅzÉà GvÀà£ÀßU¼ À À£ÀÄß ¦gÁ墬ÄAzÀ DgÉÆæ G¢æ gÀÄÁ¥ÀzÀ°è PÀæAiÀÄ ªÀiÁr®è E£ÀÄߪÀÅzÀÄ ¸Àj. Further admitted in his cross-examination stated that, ¤¦-4 ZÉPÀÌ£ÀÄß £ÀUÀzÀÄ ªÀiÁrPÉÄÁ¼Àî®Ä ¨ÁåAQUÉ PÉÆlÖ ¸ÀAzÀ¨ÀsðzÀ°è DgÉÆæAiÀÄÄ gÀÆ.41,00,000/- UÀ¼À£ÀÄß ¥ÁªÀw ªÀiÁrzÀÝgÉAzÀÄ w½¢vÀÄÛ. The Accused has purchased the material worth of Rs.83,17,805/- out of which paid an amount of Rs.41,00,000/- in a different mode of payment date. The material worth of Rs.17,00,000/- gave to the Micro Clinic. The Micro Clinic has pay in 2 installments. The Micro Clinic gave fax to the Accused in that regard to the payment made to the 45 CC No.28833/2007 SCCH-25 Complainant. Therefore the Complainant is utterly failed to prove that, as on dated of the presentation of cheques, there was a debt or liability existence worth of Rs.39,26,666/-.
17. Whereas the Accused admitted that, the purchase transactions worth of Rs.83,17,805/- and also proved apart payment and also admitted that, as on the date of the presentation of the cheque, there was a credit balance of Rs.6,40,000/- liable to pay the Complainant. In view of the section 58 of Indian Evidence Act no further proof regarding the balance of Rs.6,40,000/- as on the date of the presentation of the chqeue. Therefore the Accused is liable to pay an amount of Rs.6,40,000/- to the Complainant on the date of the presentation of the cheque. The Accused has not made payment of Rs.6,40,000/- after the receipt of notice under section 138 of N.I.Act.. It is thus the Accused has committed an offence punishable under section 138 of N.I.Act to the extend of discharge of liability for an amount of Rs.6,40,000/-.
Accordingly I have answered Point No.1 in the Affirmative.
18. Point No.2:
46 CC No.28833/2007SCCH-25 In view of my finding on the above said point, proving the provision and proportion of law stated as supra the Complainant proved the existence of debt of Rs.6,40,000/- wherein the Accused was admitted the said amount. As a result I proceed to pass the following:
ORDER Acting u/s. 255(2) of Cr.P.C. the Accused is hereby convicted for an offence punishable U/s.138 of Negotiable Instrument Act and order to pay fine of Rs.6,40,000/-. In default the Accused has to undergo Simple Imprisonment for 6 months.
Further acting U/s 357 of Cr.P.C. out of fine amount Rs.6,20,000/- order to pay to the Complainant as a compensation, remaining fine amount remit to the Government.
Further Office is directed to issue a copy of the judgment to the Accused with free of cost. 47 CC No.28833/2007
SCCH-25 (Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in open court on this the 13th day of January 2016) (DHARMAGIRI RAMASWAMY) XXI Addl.C.M.M & XXIII ASCJ, Bangalore.
........
ANNEXURE Witnesses examined on behalf of the Complainant:
PW.1 : Bharamananda Reddy Witnesses examined on behalf of the accused:
DW.1 : Manoharlal Jain Documents marked on behalf of the Complainant:
Ex.P.1 : Complaint
Ex.P.1(a) : Signature
Exs.P.2 & P.3 : Copy of invoices
Ex.P.4 : Cheque
Ex.P.4(a) : Signature of the Accused
Exs.P.5 & P.6 : Bank endorsements
Ex.P.7 : Copy of legal notice
Exs.P.8 to P.10 : Postal receipts
Ex.P.11 : UCP
Ex.P.12 : Returned postal letter
Exs.P.13 & P.14 : Returned postal cover
Exs.P.13(a)& P.14(a) : Envelopes
Ex.P.15 : Copy of GPA
Ex.P.16 : Board resolution
48 CC No.28833/2007
SCCH-25
Ex.P.17 : Reply
Ex.P.18 : Account statement
Ex.P.19 : Statement of accounts
Ex.P.19(a) to P.19 (d): Relevant entries Ex.P.20 : Invoice Letter dt.30.03.07 Ex.P.21 : Invoice Ex.P.22 : Invoice Ex.P.23 : Tax invoice Ex.P.24 : Delivery note challan Ex.P.24(a) : Seal and signature of Venus Cargo Movers Ex.P.25 : Delivery note challan Ex.P.25(a) : Signature Documents marked on behalf of the Accused:
Ex.D.1 : Copy of Statement of account Ex.D.1(a) to (i) : Cheque Nos.
Ex.D.2 : Copy of Demand draft
Ex.D.3 : Copy of Demand draft
Ex.D.4 : Copy of cheque
Ex.D.4(a) : Signature
Ex.D.5 & D.6 : Cheques
Exs.D.5 (a) & (b) : Signatures
Ex.D.7 : Debit note
Ex.D.7(a) : Signature
Exs.D.8 & D.9 : Venus Cargo Movers
Letter dt.g06.08.2007
Ex.D.10 : Debit note
49 CC No.28833/2007
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Ex.P.10(a) : Signature
Ex.D.11 : Delivery challan
Ex.D.12 : Letter dt.30.03.2007
Ex.D.12(a) : Signature
Ex.D.13 : Copy of blank cheque
Ex.D.13(a) : Signature
Exs.D.14 to D.19 : E Mail letters Ex.D.20 : Letter of Traders Association of Information technology dt.15.01.08 (DHARMAGIRI RAMASWAMY) XXI Addl.C.M.M & XXIII ASCJ, Bangalore.