Bangalore District Court
U/S 200 Of Cr.P.C For The Offense vs On 28.04.2018 on 26 March, 2021
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:- Sri. PRUTHVIRAJ VERNEKAR
B.Com, LLB
XXVIII A.C.M.M
Bengaluru City.
Dated this the 26th day of March, 2021
CC.No.7617/2019
JUDGMENT
1. Sl.No. of the case : C.C.No.7617/2019
2. The date of commence of Evidence: 24.02.2020
3. The date of Institution : 25.05.2018
4. Name of the Complainant :ESI Corporation, No.10, Binnyfields, Binnypet, Bangalore-560 023.
T.R Shiva Kumar Social Security Officer, ESI Corporation, Bangalore-560 023.
v/s
5. Name of the Accused : 1. Ashwa Cars Pvt Ltd, No.196, 5th main, Chamarajpet, Bangalore-560018.
CC.No.7617/2019 2
2. Sri. Sachidananada Director, S/o Nagaraja, R/at No.208, III cross, Shivanna Garden, Shankarapuram, Basavanagudi Post, Bangalore-560 004.
6. The offence complained : U/s.138 of N.I. Act
7. Plea of the accused on his examination : Pleaded not guilty
8. Final Order : Accused's are Convicted
9. Date of such order : 26.03.2021 JUDGMENT
1. This case has been registered against the accused on the basis of the complaint filed by the complainant u/s 200 of Cr.P.C for the offense punishable u/s 138 r/w 142 of N.I. Act.
2. The gist of the complainant's case is that :
Complainant submits that, complainant is ESI Corporation and also a Public servant within the meaning of Section 21 of the Indian Penal Code, r/w CC.No.7617/2019 3 sec.93 of the ESI Act. The accused Sri. Sachidananda, Principal employer of M/s Ashwa Cars Pvt Ltd, which is an establishment covered under the provisions of Employees State Insurance Act, 1948 under ESIC Code No.53.00.018938-000-0708 and accused failed to pay the arrears of contribution, damages due and interest payable by him under Sec.40 of the ESI Act and its regulations made there under, is all totalling to Rs.73,229/- for the period from October 2012 to March 2013. The accused submits the cheque bearing No.562724 dt:20.02.2018 for Rs.20,000/- drawn on Karnataka Bank Ltd, Chamarajpet branch, Bangalore towards part payment of his liabilities in favour of the ESI corporation which was due, which on presentation of the said cheque for encashment through its bankers, State Bank of India, Chamarajpet branch, the said cheque was dishonoured and returned back with a memo 'Account blocked situation covered in 2125' on 19.04.2018. Thereafter the complainant CC.No.7617/2019 4 issued a legal notice on 26.04.2018 to the accused by RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice and the said notice has served to the accused on 28.04.2018, inspite of service of notice accused has not paid the cheque amount nor replied to the said notice. Accordingly, the complainant filed the complaint against the accused for having committed an offense punishable u/s 138 of N.I. Act on 25.05.2018.
3. The complainant has producing the following decisions:
1.AIR 2008(NOC) 2543(BOM) at page 761 (Vishnu Bhat v/s Narayan .R Bandekar & Ors)
2.AIR 2001 Supreme Court page 518, Rajneesh Aggarwal v/s Amit J Bhalla.
3.ESIC Revenue Manual Chapter XXI, Miscellaneous Item No.21,28.
4. In pursuance of the summons, the accused has CC.No.7617/2019 5 appeared through Counsel and got enlarged on bail by executing necessary documents. The copy of the complaint was furnished to the accused, as required under law. As there was sufficient material, plea was recorded against the accused on 02.12.2019 and explained to the accused in his vernacular, for which the accused pleaded not guilty and claims to be tried.
5. In order to prove the case, the Social Security Officer of the complainant Company Sri. T.R Shiva Kumar as PW1 and got marked Ex.P1 to 7. Then the statement u/s 313 Cr.P.C was recorded on 01.02.2021, wherein the incriminating evidence appeared against the accused was read over and explained which was denied by the accused. Accused has examined but during the course of cross examination of PW1 got marked one document as Ex.D1 and Ex.D1(a)
6. In the present case it is an admitted fact by the complainant that the accused has made payment of CC.No.7617/2019 6 cheque amount through DD No.002728 dt:23.07.2019 for Rs.20,000/-, Tumkur Veerashiva Co-op Bank Limited. Whereas at the time of argument the learned counsel for the complainant vehemently argued for issue direction to the accused pay an additional liquidated compounding fee as per the ESIC Revenue Manual. On the other hand, counsel for the accused remained absent, argument on behalf of accused taken as heard.
7. On the basis of the above facts, the following points arise for my consideration:
1.Whether the complainant proves that the accused is liable to pay additional liquidated compounding fee in the interest of justice?
2. What order?
8. 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:
CC.No.7617/2019 7 REASONS
9. Point No.1:- In order to prove the case of the complainant, the Social Security Officer of the complainant Company Sri. T.R Shiva Kumar filed affidavit by way of examination-in-chief and has reiterated all the allegations made in the complaint on oath. In the evidence PW1 has produced the documents which are marked Ex.P1 to P7. On perusal of the documents produced on behalf of the complainant Ex.P1 which is the c/c of letter, Ex.P2 is the cheque, Ex.P2(a) is the signature of the accused, Ex.P3 is the bank endorsement, Ex.P4 is the legal notice dated:26.04.2018, Ex.P5 is the acknowledgement, Ex.P6 is the track consignment, Ex.P7 is the amended complaint, Ex.P7(a) is the original complaint.
10. In the present case the complainant has filed u/s 138 of N.I Act on the basis of the dishonor of cheque.
CC.No.7617/2019 8 In order to prove the case of the complainant the Social Security Officer of complainant company examined as PW1 and also in order to substantiate case of the complainant got marked the document Ex.p1 to Ex.7. This being the specific case of the complainant on perusal of the cross examination of PW1 he has stated accused has paid cheque amount through DD and the said document is confronted by the accused which are letter written by the accused to the complainant company dt:23.07.2019 and also Copy of DD for Rs.20,000/- dt:23.07.2019 for Rs.20,000/- which are marked at Ex.D1 and Ex.D1(a). This present case is also filed by the complainant company against the accused for Rs.20,000/- cheque amount as per Ex.P2. In view of this, which clearly goes to show that accused has paid cheque amount of Rs.20,000/- through DD No.002728 dt:23.07.2019.
11. It is pertinent to note that at the time of argument the learned counsel for the complainant CC.No.7617/2019 9 submitted that the accused is liable to pay additional liquidated compounding fee of Rs.5,000/-. In this regard he has submitted zerox copy of decisions:
1.AIR 2008(NOC) 2543(BOM) at page 761 (Vishnu Bhat v/s Narayan .R Bandekar & Ors)
2.AIR 2001 Supreme Court page 518, Rajneesh Aggarwal v/s Amit J Bhalla.
3.ESIC Revenue Manual Chapter XXI, Miscellaneous Item No.21,28.
On perusal of the decisions which aptly applicable to the submission made by the counsel for the accused and apart from this on perusal of the ESIC Revenue Manual wherein it has been clearly stated :
"Withdrawal of cases under section 138 of N.I Act- delegation of Powers to Rds/JD I/c for withdrawal of cases (Hqrs.Instructions No.T-11/14/32/4/2002- Ins IV dated 6th March 2000.
To bring down the pendency of criminal CC.No.7617/2019 10 cases and reduce the administrative expenditure and loss of day value of the inspectors in prosecuting such cases, the Director General has delegated powers to RD's and JD I/c's to withdraw criminal cases filed against Employers. Only for the first offence provided they pay the total amount involved in the bounced cheques along with an additional liquidated compounding fee of Rs.5000 (w.e.f 22/11/2010) or the actual fee that we are required to pay to our advocate whichever is higher. The compounding fee will be flat rate as stated above with no additional expenses to be calculated for filing of case etc. After filing the case in the court, this facility should be made aware to the court through our advocate and also by a Regd Ad letter to CC.No.7617/2019 11 the accused employer so that there is full knowledge of this facility."
On perusal of the same also clearly goes to show that the complainant company is entitled additional liquidated fee of Rs.5,000/-. On the other hand, the accused has not produced any materials to show that complainant is not entitled to the Addl Liquidated Compounding Fee. In view of this I am of the opinion if the accused is directed to pay of Rs.5,000/- additional liquidated compounding fee it will meet the ends of justice. I answer the above point No.1 in the affirmative.
12. Point No.2:- From the material on record, it appears that the accused is aged about 52 years and doing business. Considering the age, avocation of accused and quantum of the cheque, if the accused are sent to jail, it would cause problem to the accused as well as to their family members. Having regard to the facts and circumstances, prevailing rate of interest CC.No.7617/2019 12 in the nationalized Bank and litigation expenses, I proceed to pass the following:
ORDER Acting u/s 255(2) of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.5,000/-, in default shall undergo simple imprisonment for one months.
The bail bond executed by the accused shall stand canceled.
Supply free copy of the judgment to the accused. (Dictated to Stenographer directly on the Computer, taken print out corrected, signed by me and then pronounced in the open court this the 26th day of March, 2021) (PRUTHVIRAJ VERNEKAR) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE Witnesses examined for the Complainant:-
PW1 : Sri. T. R Shiva Kumar
CC.No.7617/2019
13
Witnesses examined for the accused:-
Nil Documents exhibited by the Complainant:-
Ex.P1 : C/c of Letter Ex.P2 : Cheque Ex.P2(a) : Signature of the accused Ex.P3 : Bank memo Ex.P4 : Office copy of the legal notice Ex.P5 : Postal acknowledgement Ex.P6 : Track consignment Ex.P7 : Amended complaint Ex.P7(a) : Original compliant
Documents exhibited by the Accused:-
Ex.D1 : DD Ex.D(1) : Signature
XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
CC.No.7617/2019
14
Judgment pronounced in the
open Court vide separate order.
ORDER Acting u/s 255(2) of Cr.P.C. the accused is convicted and sentenced to pay fine of Rs.5,000/-, in default shall undergo CC.No.7617/2019 15 simple imprisonment for one month.
The bail bond executed by the accused shall stand canceled.
Supply free copy of the judgment to the accused.
XXVIII A.C.M.M, Bangaluru.