Bangalore District Court
M/S. Karnataka Enterprises vs Sri. Srinivas on 17 January, 2018
IN THE COURT OF THE XII ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 17th day of January 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 18063/2015
Complainant: M/s. Karnataka Enterprises
B.T.Krishnappa Building
Survey No.17, Site No.18 & 19
Abbigere Main Road
Kammagondaahalli
Bengaluru-560 015.
Represented by its Proprietor
Smt. Usha
(By VHVK Law Partners. Adv)
- Vs -
Accused: Sri. Srinivas
Proprietor
Multi Core Packers
No.1156/57, K.G.Halli
7th Cross, Jalahalli West
Bengaluru-560 015.
(By D.N.Arun Kumar. Adv)
Offence U/s138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty.
Final order Accused is convicted
******
2 C.C. 18063/2015
JUDGMENT
1. The Complainant filed this Complaint against the accused U/s.200 of Cr.PC for the offence punishable U/s 138 of N.I.Act.
2. The brief facts of the case of the complainant are; that, the complainant is a proprietor concern represented by Smt. Usha and the complainant is inter alia engaged in the business of trading of Commercial plywood and other related activitiy and the accused is also a proprietary concern and the accused is having full control and is absolutely liable for its own conduct and affairs and hence, have been arrayed as accused in the case and is the signatory to the cheque in question and the accused has placed orders for procurement of certain goods with the complainant during its course of business and the complainant duly supplied the said products to the accused, the complainant raised three invoices for the said transaction namely invoice No.209, dated: 09.12.2014 for a sum of Rs.89,453/-, invoice No.212, dated: 12.12.2014 for a sum of Rs.28,034/- and an invoice No.238 dated: 06.01.2015 for an amount of Rs.72,097/- and the accused duly received the said products and the accused also acknowledged the receipt of the same and there is no dispute with respect to the quality, quantity or the rates of the products supplied by the complainant, the accused has received the invoices towards the cost of the said products sold and delivered and the accused has also accepted the amount due as payable to the complainant and the accused 3 C.C. 18063/2015 after accepting the receipt of the said goods has made a payment of Rs.50,000/- and has failed to pay the remaining outstanding an amount of Rs.1,39,584/- against the above mentioned purchases and even after repeatedly granting time on the request of the accused several times for making the payment, the accused has willfully neglected and failed to pay the amount towards the purchases and invoices raised by the complainant for an outstanding amount of Rs.1,39,584/- and after making repeated requests to the accused and at that time, the accused has issued a cheque bearing No.666433, dated: 10.03.2015 for a sum of Rs.1,00,131/- towards the part payment of the amount in favour of the complainant and assured that, the said cheque would be honoured on its presentation and thereafter, as per assurance given by the accused, the complainant had presented the said cheque for encashment through his banker i.e., Dena Bank, Peenya Branch, Bengaluru, but it was returned with an endorsement as "Payment stopped by drawer" on 10.06.2015. Then the complainant has informed the said fact to the accused, but the accused has not responded the same. Thereafter, the complainant without any other alternative and efficacious remedy had got issued the legal notice on 15.06.2015 through his counsel by way of RPAD calling upon him to repay the said borrowed loan amount within 15 days from the date of receipt of the said legal notice and it was duly served upon him and after receipt of the legal notice, the accused has gave evasive and untenable reply notice by denying the claim of the 4 C.C. 18063/2015 complainant and failed to repay the said amount. Hence, the complainant had constrained to file the complaint against the accused for the offence punishable under Section 138 of N.I.Act., which is well within time and perused the documents and taken cognizance and registered the case in PCR.
3. After recording of the sworn statement of the complainant and complaint registered in criminal case registered and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through his counsel and enlarged bail on him. The substance of accusation was recorded and read over the accused in his vernacular. He pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant, SPA holder of the complainant's proprietary concern got herself examined as PW.1 & got 13 documents marked as Ex.P.1 to Ex.P.13 and during the course of cross-examination of PW-1, the counsel for the accused has confronted the voucher and same has been admitted by the PW-1 and accordingly, marked as Ex.D1 and Ex.D2 and the statement of accused under Section 313 of Cr.P.C., was recorded and he denied the incriminating statement against him and the accused himself examined as DW-1 in support of his case and he had got marked two documents as per the Ex.D3 and Ex.D4 and after completion of the defence evidence the matter was posted for arguments.
5 C.C. 18063/20155. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued cheque bearing No.666433, dated:10.03.2015 for Rs.1,00,131/-, drawn on Karnataka Bank Limited, Gokula Branch, Bengaluru, for discharge of due amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Payment Stopped by drawer" and after issuance of the legal notice he fails to repay the said amount and Thereby, the accused have committed offence punishable U/s.
138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : Partly in the affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 she has reiterated as per the averments made in the complaint and she has got marked 13 documents namely, the power of attorney which is marked as Ex.P1, three invoices which are marked as Ex.P2 to Ex.P4, cheque which is marked as Ex.P5, 6 C.C. 18063/2015 the signature of the accused therein which is marked as Ex.P1(a), bank endorsement which is marked as Ex.P6, the office copy of the legal notice which is marked as Ex.P7, postal acknowledgment which is marked as Ex.P8, another cheque bearing No.760438 which is marked as Ex.P9, bank endorsement which is marked as Ex.P10, reply notice which is marked as Ex.P11, the copy of the ledger account which is marked as Ex.P12, the copy of the bill-wise details which is marked as Ex.P13.
9. During the course of PW-1 she has deposed that, she is working as Manager in the complainant's proprietary concern since 2014 and prior to that, the accused was not customer of their concern. It is true that, prior to case in hand, the accused has never defaulter to their proprietor concern with respect to the goods purchased by him and they raise supply materials to the accused concern by way of cash and credit basis, when they used to supply the materials on credit basis given 90 day time and to that effect, they have maintained books of account and they have maintained ledger extract with respect to the material supplied to the accused and to that effect, she has produced Ex.P12 and details of bill with respect to the material supplied to the accused concern as per the Ex.P13. It is true that, three invoices credit bills which were material supplied to the accused are worth of Rs.1,89,453/- at the time of supply of the said materials on credit basis and they used to receive the cheque from the customer for the security purpose and they used to return 7 C.C. 18063/2015 said cheques after making payment by the customer. It is true that, Ex.P5 and 9 cheques are given by the accused for the security purpose with respect to the material supplied by the complainant to the accused proprietary concern. It is true that, Ex.P5 and 9 cheque amount with respect to the three invoices as per the Ex.P2 to Ex.P4. It is true that, out of the said three invoice due an amount, the accused has paid an amount of Rs.28,034/- on 09.12.2014, an amount of Rs.72,097/-on 06.01.2015 paid by the accused and those two invoices an amount of Rs.1,00,131/-. She denied the suggestion that, even though the accused has intend to pay the balance amount within 45 days, but they have failed to receive the said amount. It is true that, they have received balance amount in the month of April 2015 from the accused. She denied the suggestion that, on 28.04.2015 the accused has paid an amount of Rs.1,30,000/- and Rs.20,000/-. She deposed that, she had issued voucher for a sum of Rs.1,30,000/- and Rs.20,000/- on 28.04.2015 and 23.05.2015, but again she was voluntary that, she was not issued voucher that amount. She denied the suggestion that, even though the accused has paid balance amount and he was only due an amount of Rs.59,453/- and out of that amount, the accused has paid sum of Rs.20,000/- on 23.05.2015 as per the Ex.D1 and she had issued receipt and her signature which is marked as Ex.D1(a) and balance amount of Rs.39,453/-, to that effect, she had put her signature and the said balance amount which is marked as Ex.D1(b) and for the security purpose cheque bearing 8 C.C. 18063/2015 No.760438 was received by her on 23.05.2015 and which is marked as Ex.P9 and on 28.04.2015 the accused has paid an amount of Rs.1,30,000/-, said fact has been denied by the PW-1, but voucher which is marked as Ex.D2 and her signature which is marked as Ex.P2(a). Further, she denied the suggestion that, the accused is only due an amount of Rs.39,453/- for that reasons, the accused has gave stop payment instruction to his banker on 03.03.2015 and accordingly, the banker issued endorsement Ex.P6. It is true that, Ex.P5 cheque on 10.03.2015 and Ex.P9 cheque on 08.02.2015. It is true that, as per the Ex.P7 legal notice, invoice dated: 12.12.2014 for an amount of Rs.89,453/- and to that effect, the accused has issued Ex.P9. It is true that, out of the cheque amount of Rs.89,453/-as per the Ex.P9 cheque an amount has been paid by the accused and thereby, only, she has not presented the said cheque for encashment, since to that effect, she had talk with the accused on telephone. It is true that, as per the three invoice of two voucher, apart from that, no due amount is payable by the accused to the complainant. She denied the suggestion that, as per the Ex.D1 and Ex.D1(b) the accused only due an amount of Rs.39,453/- and thereby, only he has given stop payment instruction to his banker, since the accused is ready to pay the balance amount of Rs.39,43/-, but they have failed to return the security cheques given by the accused as per the Ex.P5 and 9 and that fact, he has specifically narrated in his reply notice as per the Ex.P11. She denied other suggestion.
9 C.C. 18063/201510. During the course of defence evidence, the accused himself examined as DW-1 by way of filing chief-affidavit, wherein, he has specifically stated that, she was and is running proprietary concern and she used to purchase the materials i.e., Play-wood material and as per three invoice which are marked as Ex.P2 to Ex.P4 on 09.12.2014 for a sum of Rs.28,034/-, on 12.12.2014 for a sum of Rs.89,453/- and on 06.01.2015 for a sum of Rs.72,097/- purchased on credit basis and agreed that, he will pay the credit bill amount within a period of 90 to 120 days and accordingly, he has issued two post dated cheques bearing No.666433, dated:
10.03.2015 for a sum of Rs.1,00,131/-, another cheque bearing No.760438, dated: 18.02.2015 for a sum of Rs.89,435/- which are marked as Ex.P5 and Ex.P9, since those cheques have been issued for the security purpose.
Further, he has averred in the examination-chief that, he has already paid an amount and only due an amount of Rs.39,453/-, since he his already ready and willing to pay an amount of Rs.39,453/- towards cheque No.760438 i.e., Ex.P9, but they have failed to receive the said amount and failed to return two cheques which are issued for the security purpose and thereby, only he has gave stop payment instruction to his banker and to that effect, the bankers have issued letter with respect to the stop payment instruction which is marked as Ex.D4. Further, he has also produced his bank account passbook stating that, at the time of giving stop payment instruction to his banker, he was having 10 C.C. 18063/2015 sufficient balance in his bank account and for that, he has produced his bank account passbook which is marked as Ex.D3 and by perusal of the his bank account passbook i.e., Ex.D3, prior to giving stop payment instruction to his banker on 03.03.2015, he was having balance an amount of Rs.3,99,712.50/-, hence, he has submitted that, he is only liable to pay due an amount of Rs.39,453/-, since he as also produced the documents which are marked Ex.D1 and Ex.D2 which are voucher receipts issued by the complainant with respect to the received an amount of Rs.20,000/- and Rs.30,000/-. Therefore, he prays for dismissal of the present complaint, since he is only liable to pay an amount of Rs.39,453/-.
11. During the course of cross of DW-1 he has deposed that, he was having financial transaction with the complainant, prior to loan in question, he was transaction 10 to 20 time. It is true that, three invoice issued by the complainant as per Ex.P2 to 4, he has no objection, he has issued Ex.P5 & 9 cheques with respect to the due amount to the complainant. It is true that, he has not specifically stated in his reply notice what was due amount payable by him to the complainant. It is true that, he has not stated in his reply notice at para No.3 which of the materials are not having standard quality. It is true that, he has not specifically stated in his reply notice that, Ex.P1 with respect to the cheque amount paid by him as per the Ex.D1 and Ex.D2 and the complainant has received said amount as 11 C.C. 18063/2015 mentioned in Ex.D1 and Ex.D2. It is true that, as per Ex.D2 there is over writings with respect to amount figures i.e., before Rs.30,000/- "1" is inserted. He denied the suggestion that, to escape from his liability as per the Ex.P5 cheque in question, he has got crated the Ex.D1 and Ex.D2.
12. On perusal of the averments made in the complaint, evidence of the respective parties and coupled with the documents produced by the respective parties. There is no dispute that, both the complainant and accused are running their own independent proprietary concern as per the address mentioned in the cause title of the complaint and there is no dispute that, the complainant used to supply the plywood materials as order placed by the accused proprietary concern. There is no dispute that, Ex.P5 cheque is belonging to accused proprietary concern and the signature found on the Ex.P5(a) is his own signature. There is no dispute that, prior to filing of the present complaint, the complainant has complied all the necessary ingredients under Section 138 of N.I.Act., and the accused has gave reply notice as per the Ex.P11. There is no dispute that, Ex.P2 to Ex.P4 are invoice with respect to the plywood materials supplied by the complainant concern to the accused and for the repayment of the amount mentioned in the Ex.P2 to Ex.P4 the accused has issued cheques. There is no dispute that, the complainant used to supply the plywood materials on credit basis and also cash basis, prior to issuance of the Ex.P5 cheque, the accused has paid part of the amount to the complainant as 12 C.C. 18063/2015 per the invoice i.e., Ex.P2 to Ex.P4 and that fact has been admitted by the PW-1 during the course of her cross- examination i.e., the accused has paid an amount of Rs.20,000/- as per the Ex.D1 on 23.05.2015, but with respect to the Ex.D2 the complainant has deposed that, she was only received an amount of Rs.30,000/- and not an amount of Rs.1,30,000/-. Therefore, on perusal of the Ex.D2 it is reveals that, there is over writings in amount column, writing in numerous an amount of Rs.1,30,000/- on "1" is prefixed and it does not bear any initial of the complainant. Therefore, it is apparently on the face of the documents Ex.D2 it is clearly goes to show that, with respect to receipt of an amount of Rs.30,000/- only and not an amount of Rs.1,30,000/-, but as per the endorsement made by the complainant on Ex.D1 as per the cheque bearing No.760438 which is marked as Ex.P9 for that balance amount, out of that amount of Rs.89,453/-, the accused has paid an amount of Rs.20,000/- and that amount has been received by the complainant and for remaining balance an amount of Rs.39,453/-, out of the balance an amount as per the Ex.P9 is to be payable by the accused to the complainant as per the his defence and in his evidence and also during the course of cross of PW-1 and that endorsement made by the complainant and Ex.D1 is also admitted by the PW-1, during her cross and same is endorsement is marked as Ex.D1(b). Further, because of Ex.P5 cheques amount has been paid by the accused to the complainant, before presentation of the said cheque for encashment, the accused has gave stop 13 C.C. 18063/2015 payment instruction to his bank account, as per the letter issued by the banker as per the Ex.D4 which was given on 03.03.2015 pertain to the cheque in question and at the time of giving stop payment instruction to his banker, he was having sufficient balance in his bank account and substantiate to it, he has produced the bank account passbook as per the Ex.D3 and prior to giving stop payment instruction to his banker and the said passbook will showing the balance an amount of Rs.3,99,262/-, wherein cheque in question, Ex.P5 for a sum of Rs.1,00,131/- only. Therefore, the accused has given stop payment instruction is justifiable one. Though the accused has ready and willing to pay the balance an amount of Rs.39,453/- as per the document produced by the accused which is marked as Ex.D1, but till today, he has not paid the balance amount from the due date i.e., on 23.05.2015 and already two years have been elapsed and as per the transaction in question, though in the legal notice, specifically averred that, if the accused has failed to pay the credit bill amount within the stipulated period, he shall liable to pay interest on the due amount and that fact, has been admitted by the accused who is doing said business concern and rounded-up the said due an amount of Rs.40,000/- and awarding interest on the due an amount and cost of litigation an amount of Rs.21,000/- to be payable by the accused to the complainant. Further, the said complaint is summary trail, quasi-criminal in nature like, recovery proceedings. Hence, the accused is liable to pay total an amount of Rs.61,000/-.
14 C.C. 18063/201513. Ordinarily offence under Section 138 of N.I.Act "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved his case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case it can be presumed that, the accused has due an amount of Rs.40,000/- together with interest and cost of litigation of Rs.21,000/-.
14. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed an offence punishable under Section 138 of N.I.Act., with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P5 to the complainant for the part of the legally recoverably debt. Therefore, I answer the point No.1 partly in the affirmative.
15. Point No.2 :- In view of my findings on Point No.1 partly in the affirmative, I proceed to pas the following...
15 C.C. 18063/2015ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.61,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for fifteen days.
Out of the said fine amount, Rs.60,000/-
shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.1,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 17th day of January 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW.1 Usha 16 C.C. 18063/2015 List of documents exhibited on behalf of the complainant:
Ex.P.1 GPA Ex.P.2 to 4 Three invoices Ex.P.5 Cheque Ex.P.5(a) Signature of the accused Ex.P.6 Bank endorsement Ex.P.7 Office copy of the legal notice Ex.P.8 Postal acknowledgment Ex.P.9 Cheque bearing No.760438 Ex.P.10 Bank endorsement Ex.P.11 Reply notice Ex.P.12 The copy of the Ledger account Ex.P.13 The copy of the bill-wise details
List of witnesses examined on behalf of the accused :
DW.1 Srinivas [
List of documents exhibited on behalf of the accused :
Ex.D.1 & 2 Two vouchers Ex.D.3 Bank passbook Ex.D.4 Letter issued by the bank to the accused
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
17 C.C. 18063/201517.01.2018 Complainant : VHNK Accused :- DNA Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.61,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for fifteen days.
Out of the said fine amount of Rs.60,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.1,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands cancelled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
18 C.C. 18063/2015 19 C.C. 18063/2015Heard Inference