Bangalore District Court
M/S Aic Enterprises vs Persons : 1. Chromogene Biotech Pvt. Ltd on 28 October, 2022
KABC030939942021
Presented on : 17-12-2021
Registered on : 17-12-2021
Decided on : 28-10-2022
Duration : 0 years, 10 months, 11 days
IN THE COURT OF XXXVIII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
Present : Sri. P. Shivaraj,
B.Com. LL.B.
XXXVIII A.C.M.M Bengaluru
Dated this the 28th day of October - 2022
C.C.NO:36362/2021
COMPLAINANT: : M/s AIC Enterprises
V 79A V79B,
I A Main Road, 2nd Stage Peenya
Indl Estate, Bengaluru560 058
represented by its Accountant
Sri.S.Shashidara Babu
(Rep. By. Sri.G.H.Hanumaraju,
Advocate)
Vs/
Accused persons : 1. Chromogene Biotech Pvt. Ltd.
I Floor, next to SBI,
Beside SUN Super Market
Thindlu, Vidyaranyapura
Bengaluru560 097
Having Head office at:
No.16/1501,
Nemilreddy Street
Kummaripalem, Piduguralla,
Guntur, Andra Pradesh522 413
2 C.C.No.36362/2021
2. Sri. Shiva Kumar Medam
Director
Chromogene Biotech Pvt. Ltd.
No.1, I Main Road, A Sector
Yelahanka New Town,
Bengaluru560 062.
(A1 and A2 Rep. By Sri.
T.R.Manjunathachar, Advocate)
Offence : U/Sec.138 of N.I. Act of 1881.
Plea of accused : Pleaded not guilty
Final Order : Accused no.2 is convicted
Date of Judgment : 28/10/2022
(P. SHIVARAJ)
XXXVIII A.C.M.M.
Bengaluru.
: J U D G E M E N T :
The Complainant company is a private limited
company, its authorized person Sri. S.Shashidhara Babu
has filed the private complaint U/s 200 of Cr.P.C. against
the accused persons alleging that, they have committed
the offence punishable under section 138 of Negotiable
Instrument Act, 1881. (For short N.I.Act,1881).
2. Complainant case is as follows:
The complainant company is the supplier of
pharmaceutical and laboratory goods.
Accused no.1 is a Private Limited company and
accused No.2 is the Director of A.1 company and he is
3 C.C.No.36362/2021
responsible for the day today business affairs of A.1
company. Complainant company supplied and delivered
200 box of Centrifuge Tubes and PP Steril Bulk worth
Rs.7,08,000/ to the accused persons under the Invoice
No.3150. Accused no.2 has failed to pay the aforesaid
inovice amount. In order to pay the aforesaid invoice
amount, accused No.2 has issued the cheque bearing
No.000496 dated 15/08/2021 for Rs.7,08,000/ in
favour of complainant company which is drawn on
Lakshmi Vilas Bank, Piduguralla Branch, Andhra
Pradesh.
3. As per the instructions of the accused,
complainant company presented the aforesaid cheque for
encashment through its banker. The aforesaid cheque
was returned dishonoured with an endorsement "Funds
Insufficient", in the bank account of accused no.2 to
that effect, complainant company received the cheque
return memo from its banker on 23/08/2021.
Complainant company informed the aforesaid fact to the
accused persons and it has issued legal notice by way of
RPAD to them on 16/09/2021, and the said notice was
served to the accused persons on 20/9/2021. Further,
accused no.2 failed to repay the cheque amount.
Complainant company alleged that, accused no.2 has
intentionally not maintained the sufficient amount in his
bank account to honour the cheque. Inasmuch, accused
4 C.C.No.36362/2021
persosn have committed the offence punishable under
section 138 of N.I. Act. On the aforesaid allegations, the
complainant company approached this court and prays
this court to punish the accused no.2 and to award the
compensation.
4. After registering the case, Cognizance taken of
the offence punishable U/s 138 of N.I.Act and recorded
the sworn statement of the authorized person of the
complainant company. On finding primafacie case,
process was issued to the accused.
5. After service of the summons to the accused
persons, accused No.2 has appeared before the this court
through his counsel, and he got released on bail. In
compliance with provision of section of 207 of Cr.P.C.
papers of the prosecution was supplied to the accused.
The substance of the accusation is readout to him, in the
language known to him, he pleaded not guilty and
submitted that, he is having defence to make.
6. In order to prove the guilt of the accused persosn,
the Authorized Person of the complainant company
adopted the evidence adduced by him at presummoning
stage as his examinationinchief and he got marked 12
documents which are at Ex.P1 to 12 and PW.1 is fully
crossexamined.
7. Accused statement is recorded as per Section 313
of Cr.P.C. and he denied the same and submit that, he is
5 C.C.No.36362/2021
having evidence to lead. Accused has not chosen to lead
the evidence and there is no material on record to show
that accused is prevented from appearing before this
court to lead his evidence. Accordingly, defece evidence
is taken as Nil.
8. I have heard the arguments from the counsel
appearing for the accused. Learned counsel appearing for
the complainant has filed the written arguments on
merits, I have perused the same along with the materials
available on record.
9. The following points that arise for my
determination.
:P O I N T S:
1. Whether the complainant company
proves that, the accused persons have
committed the offence punishable U/s
138 of the N.I Act, as alleged in the
Complaint?
2. What Order?
10. After carefully going through the materials
available on record and taking into consideration of facts
and circumstances of the case, my finding to the above
points are as follows:
Point No.1: In the Affirmative,
Point No.2: As per final order, for the following:
6 C.C.No.36362/2021
REASONS
11. Point No.1: PW,1 being the authorized person
of the complainant company, he reiterated the complaint
averments in his sworn statement affidavit which is
treated as his examinationinchief affidavit.
12. Ex.P2 is the authorization letter, it reveals that
PW.1 is the authorized person of the complainant
company and the said document is not disputed by the
accused.
13. Accused No.2 has not disputed nor denied the
issuance of cheque to the complainant company as per
Ex.P3 and his signature thereon, Complainant company
has established the fact that the cheque in question is
signed and issued by the accused No.2 to discharge his
liability towards the complainant company. Accordingly
the initial statutory presumption attached to the cheque
as per Sec.118 and 139 of NI Act has to be raised in
favour of the complainant company.
14. In order to rebut the initial statutory
presumption attached to the cheque, accused cross
examined the PW.1. In the cross examination, PW.1
clearly deposed that they have supplied the materials to
the accused persons earlier and they were paying the
amount. It is elicited from the mouth of PW.1 that on
15/7/2021 complainant company has supplied and
delivered the materials as stated in the Invoice which is
7 C.C.No.36362/2021
at Ex.P.12. PW.1 deposed that they have not secured the
cheque for security purpose and Sales Department have
secured the cheque in question from the accused in
respect of the pending invoice amount. PW.1 categorically
denied the suggestion that accused has repaid the entire
invoice amount to the complainant company and he
further denied the suggestion that complainant company
has created the invoice which is at Ex.P.12.
15. On careful perusal of the evidence put forth on
record it is evident that accused persons have not denied
the transaction transacted with complainant company as
per Ex.P.12 and they have not denied the purchase order
placed by them as per Ex.P.11. Accused No.2 simply
suggested to PW.1 that accused No.2 has paid the entire
invoice amount without tendering and suggesting the
details of the repayment. The oral testimony of PW.1
corroborates with complaint averments and purchase
order as per Ex.P.11 placed by the accused persons and
Invoice Ex.P.12 raised in the name of accused persons
and the said documents remain unimpeached and
unrebutted. If the version of the complainant is false,
accused could have suggested the details of payment of
the inovice amount to PW1 and he could have tendered
the documents for the same but he has failed to comply
the same. Nothing is elicited form the mouth of PW1 to
disprove his testimony and the documents relied by him.
8 C.C.No.36362/2021
Accused No.2 could have effortlessly established before
the court that he is having sufficient amount in his
account as on the date of the cheque but he has failed
comply the same. No doubt the defence of creation of
document has to be specifically pleaded and proved
before the court with cogent positive evidence.
Apparently, accused has not placed the convincing
material to probabilise his aforesaid contention.
16. The accused has not chosen to improbabilise
the entire version of complainant nor he has attempted to
place the cogent materials on record to show that the
presumed fact does not exists and the debt as alleged by
the complainant does not exists. The documents relied
by the complainant corroborates with complaint
averments. The oral and documentary evidence relied by
the complainant remain unimpeached and unrebutted.
17. Considering the bare unsubstantiated
suggestion made to PW1 and in view of undisputed
Ex.P.11 to 12, court can safely infer and hold that
accused has accepted his guilt and his liability towards
the complainant company. There is no material on record
to disbelieve the version of complainant. Added to it, no
prudent man will issue the cheque to third person with
out any cause. Considering and looking into the
materials available on record, this court has come to the
firm conclusion that the initial presumption attached to
9 C.C.No.36362/2021
the cheque cannot be said to have been rebutted by the
accused nor he has created the doubt in the mind of
court, in respect of existence of debt by placing the
convincing, cogent, probable evidence. Further more
looking into the oral and documentary evidence on record
it is evident that, accused has not placed probable
evidence to dislodge the presumption which is raised in
favour of complainant company. Inasmuch the initial
statuary presumption attached to the cheque in question
cannot be said to have been rebutted by the accused.
Hence with the aforesaid discussion based on the
materials available on record and by considering the
facts, and attending circumstance of the case, I am
answering this point in the Affirmative.
18. POINT NO.2: For the foregoing reason and
discussion, on point No.1, I proceed to pass the following:
ORDER
Exercising the power conferred U/sec 255(2) of Cr.p.c. accused no.2 is convicted for the offence punishable U/s.138 of the Negotiable Instrument Act,1881. Accused no.2 is sentenced to pay fine amount of Rs.7,52,480/ to the complainant company with in two months from the date of this order, in default accused no.2 has to undergo simple imprisonment for a period of one year.
10 C.C.No.36362/2021Out of the said fine amount, an amount of Rs.7,50,480/ is ordered to be paid to the complainant company as compensation. The remaining amount of Rs.2,000/ shall be confiscated to the State towards litigation expenses.
The bail bond and surety bond of accused no.2 shall continue for next 6 months as per Sec.437A of Cr.P.C.
Office is directed to supply the free copy of this judgment to the accused no.2 forthwith.
(Dictated to the stenographer and transcribed and computerized by her, corrected by me and then pronounced by me in the open court on 28th day of October 2022) Sd/ (P. SHIVARAJ) XXXVIII A.C.M.M, Bengaluru.
ANNEXURES
1) List of Witnesses Examined on be half of Complainant:
PW.1 : Sri.S.Shashidhara Babu.
2) List of exhibits marked on be half of Complainant:
Ex.P.1 : Registration Certificate. Ex.P.2 : Authorization letter.
Ex.P.3 : Original cheque.
Ex.P.4 : Cheque return memo.
Ex.P.5 : Office copy of legal notice.
Ex.P.6 : 3 Postal Receipts.
Ex.P.7, 8 : 2 Unserved RPAD covers
Ex.P.9 : Letter written to Postal Dept. by complainant
Ex.P.10 : Track Consignment of Postal Dept.
11 C.C.No.36362/2021
Ex.P.11 : Purchase Order.
Ex.P.12 : Invoice.
3) List of witnessses examined and exhibits marked on behalf of the Accused: Nil (P. SHIVARAJ) XXXVIII A.C.M.M., Bengaluru.12 C.C.No.36362/2021
Judgment pronounced in Open Court vide separate order ORDER Exercising the power conferred U/sec 255(2) of Cr.p.c. accused no.2 is convicted for the offence punishable U/s.138 of the Negotiable Instrument Act,1881.
Accused no.2 is sentenced to pay fine amount of Rs.7,52,480/ to the complainant company with in two months from the date of this order, in default accused no.2 has to under go simple imprisonment for a period of one year.
Out of the said fine amount, an amount of Rs.7,50,480/ is ordered to be paid to the complainant company as compensation. The remaining amount of Rs.2,000/ shall be confiscated to the State towards litigation expenses.
The bail bond and surety bond of accused no.2 shall continue for next 6 months as per Sec.437A of Cr.P.C.
Office is directed to supply the free copy of this judgment to the accused no.2 forthwith.
(P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.