Bangalore District Court
M/S. Abc Enterprises vs M/S. Jmj Agro Exports on 30 November, 2021
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 30th day of November - 2021
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.7364/2019
Complainant : M/s. ABC Enterprises,
No.416, Ananya, 3rd Main,
60" Road, Near State Bank of India,
RR Layout, Nagadevanahalli,
Bengaluru-56.
Proprietor,
Chandrakala, W/o. Pandu,
Rep. by its Power Attorney Holder
Pandu.
(Rep. by Sri.M.K.Lokesha, Adv.)
V/S
Accused : M/s. JMJ Agro Exports,
Rep. by its Authorized Signatory
Celestine.A, S/o.Anthony,
Aged about 43 years,
No.35, 1st Floor, 1st Cross,
Immedihalli Road,
Near Government School,
Opp. Vinayaka Layout,
White Field, Bengaluru-66.
(Rep.by Sri.Umakanthappa.K.H, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused is Convicted.
DATE OF ORDER : 30.11.2021.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
Judgment 2 C.C.No.7364/2019
JUDGMENT
The complainant has presented the instant complaint against the accused on 05.02.2019 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act for dishonour of cheque amount of Rs.11,97,629/-.
2. The brief facts of the complaint are as under:
The complainant is a proprietor concern represented by her SPA Holder by name Pandu, who is the husband of complainant.
The complainant was trading of Gherkins and Onion, accused was one of her customer from last 2 years and getting supply as per orders and instructions of accused on credit basis and raises invoices for the supply.
The SPA Holder of complainant has further contended that the complainant has supplied Gherkins as per the purchase order dated 21.05.2018 and raise the invoices i.e., invoice No.ABC/001/2016-17, dated 15.07.2016 for sum of Rs.11,18,173/-, Invoice No.ABC/002/2016-17, dated 08.08.2016 for sum of Rs.9,74,572/-, Invoice No.ABC/003/2016-17, dated 31.12.2016 for sum of Rs.35,584/- and Invoice No.ABC/004/2016-
17, dated 30.01.2017 for sum of Rs.69,300/-. As per running Judgment 3 C.C.No.7364/2019 account, as on 31.03.2017, the accused was due an amount of Rs.11,97,629/- to the complainant concern. Further towards payment of due amount, the accused has issued a cheque bearing No.000112 dated 14.12.2018 drawn for Rs.11,97,629/- drawn on HDFC Bank, B.B.Road, Chikkaballapura.
The SPA Holder of complainant has further contended that when she has presented the said cheque for encashment through her banker viz., State Bank of India, Nagadevanahalli Branch, Bengaluru, the same came to be dishonoured with an endorsement dated 15.12.2018 stating "Funds Insufficient". Thereafter, she caused legal notice to the accused through her counsel on 22.12.2018, calling upon him to repay the cheque amount within 15 days from the date of receipt of the legal notice. The legal notice sent to the office address of accused came to be returned with a shara 'No Such Person" and the legal notice sent to the residential address of accused was duly served upon him on 02.01.2019. Despite, the accused has neither paid the cheque amount nor replied the notice. Thus, the accused committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
Judgment 4 C.C.No.7364/2019
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to accused, wherein, he denied the same and claimed to have the defence and he choosen to file application required under Section 145(2) of Negotiable Instruments Act to cross-examine the PW.1 and to lead his defence evidence.
5. To prove the case of the complainant, she choosen to examine her SPA Holder by name Pandu as PW.1 and through him got marked Exs.P1 to P15. Despite given sufficient opportunities to cross-examine the PW.1, the accused did not choosen to do so. The incriminating evidence made against the accused was recorded under Section 313 of Cr.P.C, wherein the accused denied the same. Despite given sufficient opportunities Judgment 5 C.C.No.7364/2019 to lead his defence evidence, the accused did not enter into witness box.
6. I have heard the arguments.
7. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
1) Whether the SPA Holder of complainant proves beyond all reasonable doubt that the accused got issued Ex.P1-cheque bearing No.000112 to the complainant towards discharge of legally recoverable debt or liability and the said cheque was dishonoured, thereby the accused has committed an offence punishable under Section 138 of Negotiable Instrument Act?
2) What Order?
8. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : As per final order, for the following:
REASONS
9. POINT No.1: The complainant has filed this complaint for an offence punishable under Section 138 of Negotiable Instruments Act against the accused and prayed to punish the accused for an offence punishable under Section 138 of Negotiable Instruments Act.
Judgment 6 C.C.No.7364/2019
10. To attract Section 138 of Negotiable Instruments Act, complainant should prove that; (1) the accused has issued a cheque for discharge of legally recoverable debt. (2) The same was presented through his banker. (3) It was dishonoured on presentation. (4) The notice in terms of provisions was served on the accused and (5) Despite service of notice neither any payment was made nor other obligations, if any were complied within 15 days from the date of receipt of notice.
11. In order to prove the case of complainant, the SPA Holder of complainant filed his affidavit evidence and himself examined as PW.1, wherein, he has reiterated the averments made in the complaint. In support of his contention, he relied upon the documents at Exs.P1 to P15. Among them, the Special Power of Attorney dated 18.12.2018 executed by complainant in favour of her husband in order to prosecute the above matter is marked as Ex.P1. Ex.P2 is the cheque bearing No.000112 issued by the accused for sum of Rs.11,97,629/- dated 14.12.2018, drawn on HDFC Bank, Sri Bhavani Arcade, 1st Floor, Besides Shanthi Sagar Hotel, B.B.Road, Chikkaballapura. The signature of accused is marked as Ex.P2(a). Ex.P3 is the Bank Endorsement issued by State Bank of India, the contents of Ex.P3 disclose that the cheque bearing No.000112 drawn for Rs.11,97,629/- was Judgment 7 C.C.No.7364/2019 dishonoured for the reasons "Funds Insufficient". Ex.P4 is the Legal Notice dated 22.12.2018, the recitals of Ex.P4 disclose that the complainant has issued this notice to the accused through her counsel. By issuing this notice, complainant called upon the accused to repay the cheque amount of Rs.11,97,629/- within 15 days from the date of receipt of notice. Exs.P5 and P6 are the Postal receipts. Ex.P7 is the unserved R.P.A.D cover. Ex.P7(a) is the legal notice at Ex.P7. Ex.P8 is the Track Consignment. Ex.P9 is the purchase order letter dated 21.05.2016 issued by accused concern to the complainant concern. Exs.P10 to P13 are the Invoices pertaining to complainant concern issued to the accused concern and Exs.P14 and P15 are the ledger account extracts pertaining to accused concern for the period from 01.04.2016 to 16.03.2017.
Section 118 (a) of Negotiable Instruments Act provides that:
"Until the contrary is proved, the following presumptions shall be made: (a) of consideration; that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration."
Judgment 8 C.C.No.7364/2019 Section 139 of Negotiable Instruments Act provides that:
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
12. In order to rebut the presumption available under Sections 118(a) and 139 of Negotiable Instruments Act, the accused, during the recording of plea as well as 313 of Cr.P.C statement, he denied the very allegations made against him and filed application under Section 145(2) of Negotiable Instruments Act seeking permission to put forth his defence and cross-examine the PW.1. This court has permitted to the accused to cross examine the PW.1 and to lead his defence evidence, but he did not do so. Hence, his side defence evidence was taken as nil.
13. It is pertinent to note that except bald denial while recording plea as well as 313 of Cr.P.C statement, the accused has not taken any specific defence, therefore, it is statutory presumption raised in favour of the complainant that the Ex.P1 cheque was issued by the accused for the payment of legally recoverable debt only. On going through the materials available on record, which relied by the PW.1, it prima-facie made out that after complying Judgment 9 C.C.No.7364/2019 the mandatory requirement under Section 138 of Negotiable Instrument Act, the complainant has presented the case against the accused.
14. In the case on hand, the PW.1 by producing documentary evidence as well as oral evidence has proved the case of complainant beyond all reasonable doubt. The accused has not taken any probable defence to rebut the case of the complainant, thereby, the accused has failed to disprove the very case of the complainant. Mere taking bald defence is not enough to suspect the genuineness of claim of the complainant. Therefore, there is no material on record to disbelieve the claim of the complainant.
15. On overall appraisal of the materials available on record, it is the consider opinion of this court that the accused has failed to discharge initial burden to rebut the statutory presumption as well as the facts and circumstances placed by the complainant in the present case. Thereby, the complainant/PW.1 has proved the guilt of the accused that the accused is liable to pay the amount covered under the Ex.P1-cheque. Therefore, keeping in the mind of the object of introduction of Negotiable Instruments Act, it appears this court that it is a fit case to convict the accused.
Judgment 10 C.C.No.7364/2019
16. Therefore, from the perusal of oral and documentary evidence placed on record it reveals that complainant has made out her case and accused has failed to rebut the presumptions arisen in favour of complainant. Thus complainant/PW.1 has proved that accused has committed an offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt. Hence, in view of the above said reasons, I hold point No.1 in the Affirmative.
17. Point No.2: In view of my findings on point No.1, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.12,20,000/-.
Out of the said fine amount, sum of Rs.12,15,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 01 (One) Year.
Judgment 11 C.C.No.7364/2019 The bail bond and cash security/surety bond of the accused stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused in free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 30th day of November - 2021) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Pandu List of Exhibits marked on behalf of Complainant:
Ex.P1 : Special Power of Attorney Ex.P2 : Original Cheque Ex.P2(a) : Signature of accused Ex.P3 : Bank endorsement Ex.P4 : Office copy of legal notice Exs.P5 & P6 : Postal receipts Ex.P7 : Unserved R.P.A.D cover Ex.P7(a) : Legal notice at Ex.P7 Ex.P8 : Track consignment Ex.P9 : Purchase order letter Exs.P10 to P13 : Invoices Exs.P14 & P15 : Ledger account extracts
List of Witnesses examined on behalf of the defence:
- None -
Judgment 12 C.C.No.7364/2019 List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 13 C.C.No.7364/2019 30.11.2021. Comp - Accd - For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Cr.P.C. the accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.12,20,000/-.
Out of the said fine amount, sum of Rs.12,15,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.5,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused shall under go simple imprisonment for 01 (One) Year.
The bail bond and cash security/surety bond of the accused stands cancelled.
Judgment 14 C.C.No.7364/2019 The office is hereby directed to supply the copy of this Judgment to the accused in free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 15 C.C.No.7364/2019 Later, the convictee's counsel filed application Under Section 389(3) of Cr.P.C seeking for suspend the sentence for the reasons stated in the application.
Heard.
In the present case, the judgment was pronounced and convicted the accused. In view of the same, the convictee's counsel has prayed that to suspend the sentence by appeal period. For the reasons stated in the application, for the limited period of prefer appeal only, the application filed by the accused counsel under Section 389(3) of Cr.P.C. is hereby partly allowed and sentence is suspended till appeal period only.
The convictee is hereby directed to execute bond for fine amount of Rs.12,20,000/-.
XXIII ACMM, Bengaluru.