Bangalore District Court
Payal Kishore Kumar vs Ideal Distributor on 28 March, 2018
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this 28th day of March , 2018.
Present: Smt Shirin Javeed Ansari, BA LL.B(Hon's)LL.M
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No.28683/2014
Complainant: Payal Kishore Kumar,
W/o.Kishore Sureshlal
S/o.Sureshlal Hiralal
aged 38 years
No.17, Subramanya Swamy Temple
Street
V.V.Puram
Bangalore. 4
Represented by SPA Holder
Kishore Sureshlal
S/o.Sureshlal Hiralal
aged 38 years
(By Sri Vijay Kumar - Advocate )
- Vs -
Accused: 1. Ideal Distributor
No.35A, 1st floor,
BDA Complex
HSR layout
Bangalore 560 034.
Represented by its partner.
2.Mudasir Ahmed,
Partner
Ideal Distributor
No. 35A BDA Complex
HSR layout, Bangalore 34.
2 C.C.No.28683/2014 .
R/at.No.70, 17th C main, 11th cross
4th Sector, HSR Layout,
Bangalore 560 102.
( By B.Jayalakshmi - Advocate )
Offence complained of: U/s. 138 of Negotiable Instruments
Act.
Plea of accused: Pleaded not guilty.
Final Order: Accused No.1 and 2 are Convicted.
Date of order: 28.03.2018.
JUDGMENT UNDER SEC.355 OF CR.PC
The complainant filed this complaint under
Sec.200 Cr.P.C. against the accused for the offence
punishable under Sec.138 Negotiable Instruments Act
(For short N.I.Act).
2. The case of the prosecution is as under :
The accused No.1 is the partnership firm
and the accused no.2 is representing accused no.1
firm. The complainant further submits that accused
no.2 representing accused no.1 and being well known
to the complainant approached the complainant in
the month of August 2013 and sought for hand loan
of Rs.4,50,000/- from the complainant for short term
3 C.C.No.28683/2014 .
basis for urgent business purpose. The complainant
accordingly paid a sum of Rs.4,50,000/- by way of
cash to accused No.1 and No.2 The complainant
submits that the accused no.1 and 2 accordingly
executed on demand promissory note and
consideration receipts dt.6.9.2013 for Rs.4,50,000/-
in favour of the complainant and acknowledged to
have received the aforesaid sum from the complainant
and undertook to repay the same with interest. at 1%
p.m.
3. The complainant submits that on repeated
demand and request made by the complainant to the
accused no.2, to repay the aforesaid borrowed
amount, the accused no.2 representing accused no.1
issued the cheques bearing Nos. 814675 dt.6.1.2014
for Rs.1,50,000/-, 814676 dt,6.2.2014, for
Rs.1,50,000/- and 814677 dt.6.3.2014 for
Rs.1,50,000/ all the cheques drawn on Punjab
National bank, BDA complex HSR layout, Bangalore
in favour of the complainant towards balance of
principal amount due by accused no.1 and 2. The
4 C.C.No.28683/2014 .
complainant presented the said cheques through,
Textile Co-operative bank ltd., J.M.road, Bangalore on
7.3.2014. The afore said cheques returned dishonored
with remarks "payment stopped by the drawer" as per
respective memo dt.10.3.2014. This suffices to say
that the assurance and representations made by
accused no.1 and 2 at the time of issuance said
cheque and thereafter is false and dishonest to their
knowledge and deliberately made with view to deceive
the complainant.
4. The complainant further submits that accused
no.1 and 2 have executed on demand promissory
notes and consideration receipts and the accused
no.2 representing the accused no.1 has signed and
issued aforesaid cheques in favour of the complainant
towards discharge of legally enforceable debt and have
failed to honor the cheques upon presentation. Thus,
by their action accused no. 1 and 2 committed an
offence punishable u/s.138 Negotiable Instrument Act
and accused no. 1 and 2 are liable to be prosecuted
for the offence as stated above.
5 C.C.No.28683/2014 .
5. Therefore, the complainant issued legal notice
to the accused dt.15.3.2014 and they have been duly
served on 17.3.2014. Despite, of that, the accused
no.1 and 2 have not bothered either to reply to the
said notice or pay the cheque amount even after expiry
of 15 days from the date of issuance of notice.
Therefore, the complainant is entitled for
compensation towards face value of afore-said cheque
with interest at 18% pa and other legal and incidental
charges as provided under Sec.357 Cr.P.C . Hence,
this complaint.
6. In pursuance of the process issued, the
accused appeared before the court on 16.2.2015 and
is on bail.
7. Copy of the prosecution papers are furnished
to the accused as required under law.
8. Plea under Sec.138 N.I.Act is framed, read
over and explained to the accused in vernacular. The
accused pleaded not guilty and claimed the trial.
9. PW1-got examined and got marked the
documents at Ex.P.1 to Ex.P.21 for the complainant .
6 C.C.No.28683/2014 .
10. The incriminating circumstances found in
the case of prosecution against the accused is read
over and explained to the accused in vernacular. The
accused denied the same. Accused examined himself
as DW 1
11. Heard arguments and perused the
material on record.
12. On the basis of the contents of the
complaint the following points arise for my
consideration. :
1. Whether the complainant proves
beyond reasonable doubt that
the accused is/are guilty of
alleged offence?
2. What order ?
13. My findings to the above points
are as follows"
Point No.1 :In the Affirmative.
Point.No.2 :As per final order for
the following:
REASONS
14.Point No.1: The complainant has filed the
complaint alleging that the accused has committed
7 C.C.No.28683/2014 .
an offence punishable u/s.138 Negotiable Instrument
Act. It is the case of complainant that the
complainant is a businessmen dealing in the
business of silk. The accused no.2 being the partner
of accused no.1 is known to the complainant since
many years. The accused no.2 approached the
complainant for want of hand loan of Rs.4,50,000/-
to overcome his business difficulties on short term
basis. Accordingly, the complainant gave hand loan of
Rs.4,50,000/- to the accused no.2. Further the
accused no.2 also executed on demand promissory
notes . Further the accused no.2 failed to repay the
said loan amount. Hence, the complainant started
making repeated demand and personally approached
the accused no.2 for which accused no.2 issued
cheques bearing Nos. 814675 dt.6.1.2014 for
Rs.1,50,000/-, 814676 dt,6.2.2014, for Rs.1,50,000/-
and 814677 dt.6.3.2014 for rs.1,50,000/ drawn on
Punjab National Bank, BDA Complex , HSR Layout,
Bangalore. The said cheques were presented by the
complainant through his banker. But, the same
8 C.C.No.28683/2014 .
dishonored with remarks "payment stopped by the
drawer". Despite repeated demands and requests
made by the complainant, the accused neither paid
the cheque amount nor headed to the request of the
complainant. Hence, the complainant got issued legal
notice dt.15.3.2014 to the accused no.1 and 2 which
are duly served upon the accused no.1 and 2 on
17.3.2014. Despite service of legal notice, the accused
neither paid the cheque amount nor replied to the said
notice. Hence, the complainant has filed the present
complaint .
14. On the other hand, it is the defense of the
accused person that the accused No.2 knows the
complainant personally since he had seen him once in
his shop. The accused is not aware of Rishab
Enterprises and he is also further not aware of
representatives of M/s. Maharashtra Silk Center, i.e.
Sureshlal Hiralal .
15. It is further contended by the accused that
the complaint filed against him are prima-facie not
maintainable either in the eyes of law or on the basis
9 C.C.No.28683/2014 .
of facts. The complainant has represented before this
court that he is the karta, but, he has failed to
establish that he is the karta of the family. The
accused has not taken any money from the
complainant by way of cash. Any transaction above
Rs.20,000/- has to be made in compliance to Income
Tax Act. The complainant is falsely accusing the
accused of taking a consolidated amount of
Rs.27,00,000/- from all the cases within period of 1
month. The complainant in all the cases never had the
capacity to pay consolidated sum of Rs.27,00,000/-
within one month
16. It is further defence of the accused that the
complainant has not mentioned either in his
complaint or in his sworn statement as well as
affidavit evidence as to when and how the subject
matter money was handed over to the accused. The
accused has further stated that the complainant is
known to the accused since the husband of the
complainant himself was interested in the mattress
business of the accused and wanted to understand the
10 C.C.No.28683/2014 .
business of the accused. Accordingly the husband of
the complainant i.e Kishore Sureshlal frequently used
to visit the office of the accused situated at BDA
complex HSR layout, Bangalore.
17. The accused further states that the accused
is in the habit of signing the blank cheques and letter
heads in order to facilitate smooth functioning of his
business. The accused used to leave the signed
cheques and letter heads in his office. The accused
frequently travels in order to purchase raw materials
for manufacture of mattress and he did not want the
business to get hampered during his travel. Therefore,
the cheques and letter heads and other documents
were readily made available at his office. The subject
matter of 3 cheques bearing Nos.814675 , 814676 ,
814677 were few among the undated blank cheques
which the accused signed and reserved them for
business purpose.
18. It is further stated by the accused that he
was traveling extensively in year 2013 and early 2014.
Upon his return, the accused noticed that few of
11 C.C.No.28683/2014 .
important papers, pro-notes, and vital documents kept
in file were missing. The accused was able to trace
cheque numbers and immediately communicated with
bank to stop payment. The subject matter cheques are
part of said missing cheques for which the accused
instructed his banker to stop payment. The seal found
on Promissory notes are fabricated .
19. It is further submitted by the accused that
he has not issued any cheque to the complainant
towards the discharge of any legally enforceable debt
or liability. The complainant has not lent any money
to the accused personally or M/s. Ideal Distributors.
The accused was never in need of such huge sum as
loan. The accused had never at any point of time taken
any sum as loan or debt from the complainant. There
is no existing legal liability between the complainant
and the accused . The accused never approached the
complainant seeking any financial help. The
complainant could not have such huge sum in cash
in possession and at their disposal. The complainant
has taken undue advantage of the misplaced cheques
12 C.C.No.28683/2014 .
by presenting the same for encashment. The
complaint is made with malafide intention and to
wreck vengeance against the accused for the reason
best known to the complainant. The complainant
fabricated the documents to support his case. The
complainant failed to establish the real/ sufficient
reason for not entering the witness box and thereby
contesting the case through special power of attorney
holder. Therefore, the accused prays to dismiss the
complaint.
20. During the course of arguments, learned
counsel or the complainant vehemently argued before
the court that the complainant has produced the
documents marked at Ex.P.1 to Ex.P.21 which clearly
support the case of the complainant. The complainant
produced the cash book and ledger extract to
discharge the burden. The ledger is maintained by the
complainant in due course of business, and the same
has to be considered by this court. During the
arguments, the learned counsel for the complainant
13 C.C.No.28683/2014 .
again referred the documents produced by the
complainant .
21. In order to prove his case, the complainant
is examined as PW 1. The complainant has reiterated
the complaint averments in the sworn statement
affidavit and in his chief-examination. The
complainant further relied on the documents at Ex.P.1
to Ex.P.21. Ex.P.1 is the Power of Attorney. Ex.P.2
On demand promissory note and consideration
receipt. Ex.P.2(a) (b) are the signature of accused.
Ex.P.3 to P.5 are the cheque in question . Exp3(a) to
P5(a) are the signatures of accused. Ex.P.6 to P8 are
the bank memos. Ex.P.9 is the office copy of the
legal notice. Ex.P10 to P.12 are the postal receipts.
Ex.P.13 to Ex.P.15 are the postal acknowledgement.
Ex.P.16 and P.17 are the Ledger Extracts. Ex.P.18 is
the complaint. Ex.P.19 is the Ledger Book. Ex.P.20 is
the cash book. The translation is marked at Ex.P.20
(b). Ex.P.21 is the Income Tax return along with the
certificate u/s.65(b) of Evidence Act.
14 C.C.No.28683/2014 .
22. On the other hand, learned counsel for the
accused vehemently argued before the court that the
documents produced by the complainant are not at
all in accordance with the pleadings of the
complainant himself. The complainant has not
discharge his burden . The documents produced by
the complainant especially Ex.P.16 and P 17, the
Ledger Extracts maintained by the complainant
himself during the course of business, the cash book
and the ledger folio does not match with each other.
23. It is further argued by learned counsel for
the accused that only 1 % of the interest is alleged to
have been charged in the promissory note,. But
interest of 1 % has neither been mentioned in Ex.P16
and P.17 nor reflected in the cash book of the
complainant. The circumstances are highly improbable
that the complainant had money to lend .
24. It is also argued by the learned counsel for
the accused that the Income Tax return form
produced by the complainant is marked subject to
objections before the court. Nowhere it is reflected
15 C.C.No.28683/2014 .
that the accused has taken Rs.4,50,000/- from the
complainant as hand loan. It can only be found if the
balance sheet of the complainant is produced. The
complainant has vehemently stated in his cross-
examination that one Mr Mahesh Chandra Accountant
of the complainant looks after all the account
matters, but, said Mahesh Chandra has not been
examined by the complainant . .
25. Though the complainant states in his
evidence that his wife and father witnessed the
transaction, but, neither the wife of the complainant
nor his father have been examined before court.
26. Absolutely the complainant has not
mentioned as to when the accused issued the alleged
cheques to the complainant. The complainant neither
explained this aspect of the matter in his notice,
complaint , nor in the evidence . Admittedly, the
complainant had no any transaction with the accused
person before August 2014. The complainant had no
idea about the yearly turn over of the accused person .
He does not know the financial status and the
16 C.C.No.28683/2014 .
condition of the person to whom he is lending the
money. The arguments canvassed by the learned
counsel for the complainant in this regard cannot be
accepted.
27. It is further argued by the learned counsel
for the accused that over and above in 1 month the
complainant has lent amount of Rs.27,00,000/- to
the accused on various dates in the month of
September. But, the complainant and her husband
have not at all shown the source income to prove
financial their capacity to lend Rs.27,00,000/- in one
particular month out of their income. The
complainant has not at all produced any documents
to that effect. Though Income Tax return is produced,
but they are marked subject to objections. The
cheques and the pro-note belonging to the accused
person have been misplaced from the custody of his
office . Therefore, the accused has given stop payment
instructions to his banker. The accused has reacted
as early as possible to this situation. It is further
argued by the learned counsel for the accused that the
17 C.C.No.28683/2014 .
complainant has violated the provisions of Income Tax
Act also. Therefore, considering this aspect of the
matter the learned counsel for the accused submitted
that there are material discrepancies in the evidence
of the complainant. The case of the complainant is full
of material suspicion. Hence, prayed for acquittal of
the accused.
28. Of course, there is no dispute that the
complainant and the accused are acquainted with
each other because of their respective business. The
accused does not dispute the fact that the cheques in
question relate to the account held by him with Punjab
National Bank. The accused also does not dispute the
signature found on the cheques and the promissory
notes.
29. The accused in his cross examination clearly
admits that the signature marked at Ex.P.2(a) (b) and
3(a) are his signatures. Ex.P.2 is the promissory note
and Ex.P.3 is the cheque in question . It is further
admitted by the accused the he had purchased sarees
in the year 2013 from the complainant's husband and
18 C.C.No.28683/2014 .
he knows the complainant's husband since 4 years.
This aspect of the matter clearly sows that the parties
are well acquainted with each other.
30. It is further suggested to DW1, the accused
that the present transaction has not been entered in
his Income Tax returns for which the accused has
clearly denied. But to show this aspect of the matter
the accused has not produced any of the Income Tax
returns. It is the strong and stout defence of the
accused that the cheques and some other important
letter heads signed by him which were kept in his
office have been misplaced and the cheque in question
is part of the said cheques. It is also stated by the
accused the he was frequently traveling in order to
purchase the raw materials for manufacture of
mattresses and he did not want the business to get
hampered during the travel. Therefore, the cheques
and the letter heads and other documents were
readily available at his office. The subject matter of the
cheques i.e 814675, 814676 and 814677 are among
the blank cheques which the accused signed and
19 C.C.No.28683/2014 .
reserved for business purpose. Since he was traveling
extensively in 2013 and early 2014, upon his return
the accused noticed that few of his important paper,
promissory notes, and cheques and vital documents
kept in the file were missing. The accused was able to
trace the cheque numbers and immediately
communicated with his banker to stop payment . The
subject matter cheque is part of the said missing
cheques for which the accused had instructed his
banker to stop payment.
31. On perusal of the material available on
record it is found that the accused has not produced
the letter issued by him to the bank authority to stop
the payment. Even if it is presumed for moment that
since the accused was traveling extensively in the
year 2013 and early 2014 to various countries for
purpose of his business, any ordinary prudent man to
make any payment in the business, a person may
keep a cheque signed and ready. But it is quite
difficult to believe that a person keeps the promissory
note signed and ready in his office to make the same
20 C.C.No.28683/2014 .
available for the business. To prove this aspect of the
matter the accused has not produced any cogent and
convincing material evidence before this court. The
accused has not come forward to lead the evidence
of any of his employee or staff to prove that the
cheque in question was misplaced. The non
production of the letter issued to the bank authorities
further creates doubt on the very defence of the
accused. It appears that the accused has taken up the
present defence only for the purpose of avoiding the
liability. Except the self serving statement of the
accused, there is nothing on record to prove his
defence
32. The accused has challenged the financial
capacity of the complainant and the counsel for the
accused vehemently argued before the court that the
complainant within the span of 1 month cannot pay
such huge amount of money to the accused. To
disprove this aspect of the matter the complainant
has produced Ex.P.21 - the income tax return of the
year 2014 -15 wherein the total income of the
21 C.C.No.28683/2014 .
complainant is reflected as Rs.47,10,093/- . This
aspect of the matter clearly shows that the
complainant is an income tax payee who had duly
filed the returns before the appropriate authority and
had sufficient income to lend money to the accused
person.
33. The accused has further contended that the
legal notice has not been served upon him. During
the cross examination, the accused / DW1 has clearly
admitted that the address shown in Ex.P.15 is his
residential address and he is the partner of accused
no.1 . It further admitted by DW 1 that seal on Ex.P.13
and P.14 the postal acknowledgement looks similar to
the seal of accused no.1 and 2. The entire purpose of
issuing notice is to give opportunity to the drawer to
pay the cheque amount within 15 days of service of
notice and thereby free himself from the penal
consequence of Sec.138. It is to be borne in mind that
the requirement of giving notice is clear departure
from Rule of Criminal Law where there is no
stipulation of giving of notice before filing a complaint.
22 C.C.No.28683/2014 .
Any drawer who claims that he did not receive the
notice sent by post, can within 15 days of receipt of
summons from the court in respect of the complaint
u/s.138 of Negotiable Instrument Act ,make payment
of the cheque amount and submit to the court that he
had made payment with 15 days from receipt of
summons ( by receiving the copy of the complaint with
the summons) and therefore, the complaint is liable to
be rejected. A person who does not pay within 15 days
of receipt of the summons from the court along with
the copy of the complaint u/s.138 of the Act, cannot
obviously contend that there was no proper service of
notice as required u/s.138 Negotiable Instrument Act
by ignoring statutory provisions to the contrary
u/s.27 of the General Clause Act and Sec.114 of the
evidence Act. Therefore, since the accused has
appeared before the court upon the service of
summons, it was open for the accused to have made
the payment and to have absolved himself of criminal
liability if the only contention that is to be
addressed was , whether there was valid service of
23 C.C.No.28683/2014 .
notice. Hence, the question of validity of service of
notice will not assist the accused in his defence in this
case. The portion of the cross examination in this
regard clearly shows that the notice is duly served
upon the accused at his office as well as to his
residential address. Therefore, the arguments,
canvassed by the learned counsel for the accused does
not survive for consideration. Hence, in view of this the
court is of the opinion that the complainant has
successfully discharged his initial burden casted upon
him and successfully proved beyond reasonable
doubt that the accused issued the cheques in
question in discharge of debt and liability and the said
cheques , upon presentation came to be dishonored
for the reason "payment stopped by the drawer" for
which the complainant issued legal notice to the
accused and despite service of notice, the accused
neither replied to the notice , nor took any action
against the complainant and he has not made the
payment also.
24 C.C.No.28683/2014 .
34. Therefore, the accused though has taken a
defence that the cheques kept in is office have been
misplaced, but, has failed to prove this aspect of the
matter by producing satisfactory material evidence
before the court. Mere taking up defence is not
sufficient . The accused has to prove the same by
producing cogent and convincing material before this
court. The accused has failed to take up probable
defence in order to disprove the case of the
complainant . Hence, in view of this I answer Point
No.1 in the Affirmative.
35. Point No.2: In view of the reasons stated
and discussed above, the complainant has proved
the guilt of the accused for the offence punishable
under Sec.138 Negotiable Instruments Act .
Hence, I proceed to pass the following :
ORDER
Acting u/s.255(2) Cr.P.C accused No.1 and 2 are convicted for the offence punishable under Sec.138 Negotiable Instruments Act and accused No.2 is sentenced to pay fine of Rs.5,10,000/-.(Rs.Five Lakhs Ten 25 C.C.No.28683/2014 . Thousand Only) In default, he shall under go SI for a period of one year .
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.5,00,000/-.(Rs.Five Lakhs Only) towards compensation amount.
Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.10,000/- (Rupees Ten Thousand Only) is confiscated to the State .
Furnish free copy of judgment and order to convicted-accused.
(Dictated to the Stenographer directly on the computer, typed by her , corrected and signed then pronounced by me in the open court on this the 28th day of March , 2018).
(SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.
ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Kishore Sureshlal .
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Power of Attorney.
Ex.P.2 : D.P.Note
Ex.P.2(a)(b) : Signature of the accused.
Ex.P.3-5 : Cheques
26 C.C.No.28683/2014 .
Ex.P3(a)
to 5(a) : Signature of the accused.
Ex.P.6-8 : Bank memos.
Ex.P9 : Office copy of legal notice.
Ex.P.10-12 : Postal receipts.
Ex.P.13 to 15 : Postal acknowledgements.
Ex.P.16 &17 : Account Ledger Extracts.
Ex.P.18 : Complaint. Ex.P.19 : Ledger Book. Ex.P.20 : Cash Book. Ex.P.21 : IT Return.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:- -
DW1 : Muddasier Ahmed.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
Nil ( SHIRIN JAVEED ANSARI ) XXV A.C.M.M.,BANGALORE. 27 C.C.No.28683/2014 . For judgment:
ORDER (Judgment pronounced in open court vide separate sheets) Acting u/s.255(2) Cr.P.C accused No.1 and 2 are convicted for the offence punishable under Sec.138 Negotiable Instruments Act and accused No.2 is sentenced to pay fine of Rs.5,10,000/-.(Rs.Five Lakhs Ten Thousand Only) In default, he shall under go SI for a period of one year .
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.5,00,000/-.(Rs.Five Lakhs Only) towards compensation amount.
Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.10,000/- (Rupees Ten Thousand Only) is confiscated to the State .
Furnish free copy of judgment and order to convicted-accused.
XXV A.C.M.M.,BANGALORE