Bangalore District Court
Sri. Kondaiah vs M/S. Saravana Build Well Pvt on 13 February, 2020
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU
:: PRESENT ::
SRI. NAGARAJEGOWDA.D., B.Com, L.L.B.,
C/C. XII A.C.M.M., Bengaluru
C.C.NO.4504/2016
Dated: This the 13th Day of FEBRUARY-2020
COMPLAINANT/S: Sri. Kondaiah,
Proprietor,
M/s. Bhargavi Constructions,
No.15, Opp. KNS College,
Thirumanahalli,
Jakkur Post,
Yelahanka,
Bengaluru - 560 063.
ACCUSED: M/s. Saravana Build Well Pvt
Ltd.,
No:11, 8th Main,
Brindavan Nagar,
S.B.M. Colony, Gokula,
Bengaluru - 560 054.
Represented by its Managing
Director Sri. K. Nagaraj.
Offence Under Section 138 of Negotiable
Instruments Act
Plea of the accused Pleaded not guilty
Final Order Acquitted
**
JUDGMENT 2 CC.No:4504/2016
:: JUDGMENT ::
The complainant filed this private complaint under Section 200 of Cr.P.C alleging that, the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant case reads as follows:
The complainant had filed a suit in OS.No:6557/2015 on the file of City Civil Judge at Bengaluru against the accused and others for the relief of permanent injunction not to alienate the flats constructed by the complainant and also permanent injunction not to interfere or dispossess complainant from the suit schedule property. The accused is the 11th Defendant in the said suit who is the labour contractor having labours under him for the construction of residential buildings / apartments and the accused was the builder in respect of the schedule property shown in the schedule hereunder. The Defendant No.1 to 10 are the absolute owners in respect of the suit schedule property and the accused is the builder -
JUDGMENT 3 CC.No:4504/2016 11th Defendant and developer running in the name and style of "Saravana Buildwell Pvt Ltd". The Defendant No.1 to 10 and the accused being the 11th Defendant had entered into a Joint Development Agreement dated 30/06/2007 to construct the multistoried residential building called as "Saravana Esplande (VSPL)". The Defendant No.1 to 10 have acquired the suit schedule property under valid documents of title. The Defendant No.1 to 10 being the absolute owners in respect of the suit schedule properties have entered into a Joint Development Agreement on 30/06/2007 with this accused. The Defendant No.11 being the builder and developer. The accused - Defendant No.11 had engaged the plaintiff i.e., the complainant to do civil work in the suit schedule property. To that effect the accused - Defendant No.11 has given work order dated 14/02/2013 to the plaintiff i.e., the complainant to do civil work and other allied works as shown in the "Saravana Esplande Work Order" dated 14/02/2013. As per the recitals of the work order, the plaintiff i.e., the complainant started the work immediately after the receipt of work order / placement of work order to JUDGMENT 4 CC.No:4504/2016 the plaintiff ie., the complainant. The work order discloses the details of works to be completed by the complainant and the payment status and other terms and conditions mentioned in the work order. The complainant submitted to do work with his workers and completed the following works in the suit schedule properties such as :-
Slab work, Block work, Plastering, Door frames, window fittings etc.
(a) Basement : 30,558 sq. ft. 80% work completed
(b) Ground floor : 21,390 sq. ft. 80% work completed
(c) First Floor: 21,390 sq. ft. 80% work completed
(d) Second Floor: 21,390 sq. ft. 65% work completed
(e) Third Floor : 21,390 sq. ft. 65% work completed
(f) Fourth Floor : 21,390 sq. ft. 55% work completed The proposed construction of the residential building and the recitals of the Joint Development Agreement clearly establishes that accused - builder shall complete upto sixth floor. Based on the Joint Development Agreement oral instructions was given to the complainant to complete the work as per the work order till all the floors are JUDGMENT 5 CC.No:4504/2016 completed and the said fact has not been elicited in the work order dated 14/02/2013. The complainant and the accused directed the complainant to start work immediately after placement of the work order. As per the instructions of the accused, the complainant is doing the work in the suit schedule properties. The complainant is a composition tax payer and having composition tax registration certificate (VLO-155) - Form VAT 8 (See Rule 137(2) dated 15/01/2013 issued by the Asst.
Commissioner of Commercial Taxes LVO-150 (Addl), Bengaluru - 560 020. The complainant is having Form- 4(See Rule 4(4) - Certificate of Enrolment issued under Karnataka Tax on Profession, Trades, Callings and Employments Act, 1976 issued by the Asst. Commissioner of Commercial Taxes. The complainant started his work with his workers roughly about 700 to 800 workers and completed the construction work including earth work excavation and other works in the suit schedule properties. The complainant and his men/workers have worked and completed the works as per the work order efficiently, honestly and efficaciously to the utmost satisfaction of the JUDGMENT 6 CC.No:4504/2016 accused and the Defendant No.1 to 10 who have visited the work spot when the works are going on and all the Defendants have appreciated the work done by the complainant and his workmen. The works in the suit schedule property was not yet completed and when the facts and circumstances beings thus, the accused in collusion with the other Defendants have advised the complainant to stop the work and also advised to withdraw his labourers from the suit schedule property and the accused and other Defendants in collusion with each other trying to alienate the flats constructed in the suit schedule property in favour of third persons without completion of all pending works by suppressing the material facts and try to interfere and try to stop the work forcibly on 12/07/2015 with the help of goonda elements and without withdrawing the work order placed by the complainant to complete the construction work allotted to the complainant in the work order. The act of the accused and other Defendants are imminent in nature and if the accused and other Defendants were to successful in their futile and unlawful efforts, the complainant will be put to untold JUDGMENT 7 CC.No:4504/2016 hardship, irreparable loss and injustice which cannot be compensated in terms of any means and if the Defendants were successful in their futile and unlawful efforts, it will lead multiplicity of proceedings. In the said OS filed against the accused and other Defendants for the relief of permanent injunction not to alienate the flats constructed by the complainants and also permanent injunction not to interfere or dispossess the complainant from the suit schedule property, the Court ordered on behalf of complainant as "The plaintiff has to settle the matter with the Defendant No.11 as per work order and as per law before passing any order. The main prayer of the suit and prayer made in IA No.1 and 2 are the same, hence the petitioner has not made out ground to issue exparte T.I. against Defendants. The Defendant No.11 has directed to settle the dispute as per work order till next date of hearing and directed not to stop the construction work forcibly with the help of the gunda elements.
JUDGMENT 8 CC.No:4504/2016 Issued emergent notice of I.A.No.1 and 2 and suit summons to Defendant's returnable by 15/09/2015".
Subsequent to the orders, the suit summons were served on the accused and the accused appeared before the court by filing vakalath on behalf of the accused and also filed written statement on their side in this case. Subsequently after filing the vakalath of the accused, the accused came near the work spot with his henchmen and made galata near the suit schedule property and hence the complainant has given police complaint to the Yeshwanthpur police and the police have registered FIR in Crime No:400/2015 for the offence punishable under Section 506, 341, 504 r/w 34 of IPC. There afterwards, the accused has obtained bail from the XXIV A.C.M.M, Bengaluru. There afterwards, the accused has contacted the complainant along with well wishers and friends of complainant and at the time of intervention of well wishers and friends have advised the complainant and the accused on hearing of the words of well wishers and friends of complainant and the accused, the complainant as per their advise and as per accused JUDGMENT 9 CC.No:4504/2016 assurance entered into MOU on 14/10/2015 and the complainant had agreed to settle for a sum of Rs.35,00,000/- to be paid by the accused as per the recitals of the MOU. The said amount covered with Rs.30,00,000/- in respect of the above said suit and Rs.5,00,000/- towards commission in respect of Sy.No.2/2 of Sampigehalli Village measuring 1 acre 32 guntas and in this regard the accused has given 07 cheques to the complainant vide cheque bearing No:066238, 066239, 066240, 066241, 066242, 066243 and 066244 for a sum of Rs.4,90,000/- each drawn on Bank of Maharashtra, Bengaluru after deduction of TDS amount of Rs.70,000/- which will be deposited to the complainant account and to the said MOU complainant advocate and accused advocate i.e., Ashok Reddy have sgined as witnesses and the accused assured complainant that the said cheque will be honoured on its presentation to the Bank before the witnesses attested to the MOU. Based on the MOU, the complainant presented the said cheques through his Banker HDFC Bank, Yelahanka Branch, Bengaluru. But five cheques have been honored by the accused by keeping JUDGMENT 10 CC.No:4504/2016 sufficient amount in his bank account and the same was drawn by the complainant and remaining two cheques bearing No:066243 dated 26/12/2015 and No:066244 dated 31/12/2015 drawn on Maharashtra Bank, Malleswaram Branch, Bengaluru were returned unpaid with the shara as "Stop payment" and the said shara was given by HDFC Bank, Richmond Road Branch, Bengaluru. The complainant contacted the accused and also his advocate and requested and demanded to return the cheque amount of Rs.4,90,000/- each, but the accused failed to return the said amount and hence the complainant got issued legal notice to the accused on 13/01/2016 by RPAD. In spite of service of legal notice, the accused has neither replied the legal notice nor complied with the terms of notice and thus the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act and punish the accused in accordance with law by awarding compensation under Section 357 of Cr.P.C in the interest of justice and equity.
3. After recording the sworn statement of the complainant JUDGMENT 11 CC.No:4504/2016 with documentary evidence, this court has registered the case against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. Summons issued to the accused. The accused appeared through his counsel and enlarged on bail. There afterwards, plea of accusation read over and explained to the accused in the language known by him and he pleaded not guilty and claims to be tried.
4. In support of the case of the complainant, the complainant filed affidavit by way of chief-examination as PW-1 and got marked Ex.P.1 to Ex.P.17 and this PW-1 has been fully cross-examined by the accused counsel and at that time got marked Ex.D.1 and Ex.D.2 and thus PW-1 has been cross-examined by the accused counsel and thus the complainant closed his side evidence.
5. There afterwards, the accused person examined under Section 313 of Cr.P.C statement, in which he totally denied the entire case of the complainant and submits that his JUDGMENT 12 CC.No:4504/2016 side no defence evidence. Hence, the defence evidence of the accused is taken as nil.
6. I have heard the arguments of the complainant and the accused counsel on merits.
7. On the basis of the aforesaid facts and circumstances, the following points arises for my considerations:
POINTS
1. Whether the complainant proves beyond all reasonable doubts that towards Joint Development Agreement taken between the complainant and the accused and also as per OS.No:6557/2015, the accused issued 7 cheques, out of it, two cheques bearing No:
066243 dated 26/12/2015 and No:066244 dated 31/12/2015 and also another 5 cheques totally amounting to Rs.4,90,000/- each after deduction of TDS amount of Rs.70,000/-. The two cheques stated above are presented by the complainant for collection through his Banker HDFC Bank, Richmond Road Branch, Bengaluru. But the said cheques are dishonoured due to "Payment stopped by the drawer". After issuance of legal notice to the JUDGMENT 13 CC.No:4504/2016 accused on 13/01/2016 by RPAD, the same is duly served to the accused, but the accused did not comply the notice, but issued a untenable reply and thus the accused has committed an offence punishable under Section 138 of Negotiable Instruments Act?
2. What order?
8. My answer to the above points are as under:
Point No.1: In the Negative,
Points No.2: As per the final order,
for the following.
REASONS
9. POINT No.1: In support of the case of the complainant, the complainant filed affidavit by way of chief-examination as PW-1 in which he has stated that he is the Proprietor of Bhargavi Constructions and in his chief-examination he reiterated the complaint contention and got marked Ex.P.1 to Ex.P.17. Ex.P.1 and Ex.P.2 are the cheques amounting to Rs.4,90,000/- each and identified the signature of the accused as Ex.P.1(a) and Ex.P.2(a). Ex.P.1 and Ex.P.2 cheques are returned unpaid with the Banker's JUDGMENT 14 CC.No:4504/2016 endorsement as per Ex.P.3 and Ex.P.4 as "Payment stopped by the drawer". Ex.P.5 is the copy of legal notice. The notice has been sent to the accused as per Ex.P.6 is the postal receipt. The said notice is duly served to the accused as per Ex.P.7 Postal acknowledgement. Ex.P.8 is the certified copy of order sheet in OS.No:6557/2015 in which the complainant herein filed a permanent injunction suit against the accused No.1 to 11 Defendants and the 11th Defendant is the accused in this case. On 14/10/2015 it is mentioned that the plaintiff present, Defendant absent. Plaintiff and Defendant counsel filed memo submits that permitted to the plaintiff to withdraw the suit. In view of the memo, the same is allowed and permitted to withdraw the suit and hence the suit of the complainant is dismissed as withdrawn, along with the memo of withdrawal. Ex.P.9 is the certified copy of the plaint in the said suit and also written statement filed by 11th Defendant who is the accused in this case by denying the entire case of the complainant. Ex.P.10 is the written statement filed by the accused who is the Defendant No.11 in that case. Ex.P.11 is the certified copy of FIR JUDGMENT 15 CC.No:4504/2016 No:400/2015 on the file of XXIV A.C.M.M., Bengaluru on 05/08/2015, in which the complainant herein filed the complaint against the accused and his friend regarding assault given to this complainant under Section 341, 34 and 504 of IPC. Ex.P.12 is the certified copy of order sheet in the said case. Ex.P.13 is the work order dated 14/02/2013, in which it is addressed to this accused regarding rate is basically for labour part only. All materials will be supplied to us, by mentioning details of the work entrusted to this accused and in the terms and condition, the above price is inclusive of labour, Service Tax, Labour Insurance, Labour PF, Transport to site if any. Quality certified by our site Engineer-in-charge / Architech / Consultants. Quantity: RA Bill will submit after completion of the stages of work and bill amount will be passed after the certified by our site engineer along with your representative etc. Ex.P.14 is the Form VAT-8 i.e., Composition Tax Registration certificate stands in the name of the complainant who is the Proprietor of Bhargavi Constructions. Ex.P.15 is the Joint Development Agreement dated 30/06/2007 taken between Sri JUDGMENT 16 CC.No:4504/2016 Mahamuni Trust, Religious and Charitable Trust is the first party and R. Thulasiram of Bengaluru and others are the second party and this Joint Development Agreement is not taken with the complainant but the accused Saravaa Build Well Pvt Ltd who is the third party who are the developers and promoters. Ex.P.16 is the colour photos of the building constructed by the accused. Ex.P.17 is Project "Saravana" with exclusive marketing rights of landlord share brochure. On the basis of these oral and documentary evidence, in order to show the accused had issued an untenable reply, for that the complainant has not produced any reply notice of accused and also he has not stated the schedule of the property as stated in the complaint.
10. In this case, the accused appeared and contest this case by denying the entire case of the complainant. In support of his denial, the accused counsel cross-examining PW-1, in which he stated that he knows the accused for the last 5 years and he did not know reading and writing and Ex.P.13 is the agreement which was prepared by the JUDGMENT 17 CC.No:4504/2016 accused and he put his signature without reading the said contents and he admitted on 18th June 2014. This complainant had issued the legal notice through his advocate as per Ex.D.1. Though the accused through his counsel replied to the notice as per Ex.D.2 on 3rd July 2014, but he admitted that this accused submitted the complaint before Yeshwanthpur police and the police have called him and both of them compromised the case, but he denied that the accused had paid some of the amount in the Police station and he had agreed to take back the complaint lodged against the accused and Ex.D.1 legal notice has been given as per the instructions of the complainant to his counsel. Accordingly his counsel prepared the said Ex.D.1 legal notice and further he admitted that he filed a suit in OS.No:6557/2015 before Civil Court and he denied that upon 7 cheques, 5 cheques were honoured, but Ex.P.1 and Ex.P.2 cheques are dishonoured and as per Ex.D.1 legal notice there is no transaction taken between the complainant and the accused and Ex.P.1 and Ex.P.2 cheques are issued along with 7 cheques issued to this complainant and the JUDGMENT 18 CC.No:4504/2016 complainant has honoured the 5 cheques issued by him and the accused paid Rs.2,00,000/- inclusive of interest and in spite of the amount received from the accused, he filed a false case against the accused as per Ex.P.3 and Ex.P.4 are the Bankers endorsement are returned with the shara as "Payment stopped". Ex.P.5 legal notice issued to this accused is not served upon him, but he has stated that in the complaint the legal notice is duly served to the accused and the accused issued a untenable reply, for that the complainant has not produced any reply notice to support his contention. As such, at the first instance the complainant has not approached this court in a proper manner and the alleged transaction taken between the complainant and the accused is purely civil in nature. Instead of the complainant approaching the civil court for redressal, has filed this complaint against this accused. Though the accused has not stepped into the witness box, but at the time of cross-examination of PW-1 got marked Ex.D.1 is the legal notice issued on 18th June 2014 by this complainant, in which this accused received a sum of Rs.1,26,00,934/- towards construction of residential JUDGMENT 19 CC.No:4504/2016 apartment and at the last Para of the notice herein it is stated as "I hereby call upon you to pay to my client a sum of Rs.22,41,146=00 (Rupees Twenty Two Lakhs Forty One Thousand One Hundred and Forty Six Only) within one week from the date of receipt of this notice in order to complete the said construction of the residential apartment to you within the stipulated time, otherwise my client will not be held liable for the consequences arising therefrom". Against the said notice, the accused issued a reply notice through his advocate on 3rd July 2014 as per Ex.D.2 by denying the entire case of the complainant and at the end of his reply notice, he has contended that "without prejudice to their right to upgrade at your client's cost the work carried out by him, to terminate the contract with him, engage any other contractor and claim damages from him, call upon him to refrain from making false and uncalled for demands and to resume the work forthwith, failing which they will pursue the breach of the contract that your client has committed as willful and designed to cause wrongful loss and make unlawful gain for himself and institute appropriate proceedings to protect as well as JUDGMENT 20 CC.No:4504/2016 enforce their rights at the cost, risk and liability for the consequences arising therefrom on the part of your client"
etc. In view of the contents stated in the Ex.D.2 and as per Ex.D.1 legal notice, the accused has not taken any action against the complainant for recovery of any amount. As such, the complainant has not approached this court in a proper manner. Though the accused did not lead his side defence evidence, it is the duty of the complainant to prove his case beyond all reasonable doubts. As such, whatever the arguments addressed by the complainant counsel will not substantiate their contention, but the arguments addressed by the accused counsel will substantiate the defence taken by them. Accordingly the complainant had failed to prove the alleged guilt of the accused beyond all reasonable doubts. Hence, the accused is entitled for acquittal. Accordingly, I answered Point No.1 in the Negative.
11. POINT NO.2: From the forgoing reasons, I proceed to pass the following:
JUDGMENT 21 CC.No:4504/2016
ORDER
Acting under Section 255(1) Cr.P.C the accused is acquitted from the alleged offence punishable under Section 138 of Negotiable Instruments Act.
The accused is set at liberty and his bail bond and surety bond if any will be continued for a period of 6 (six) months in compliance under Section 437(a) Cr.P.C.
(Dictated to the stenographer, corrected and then pronounced by me in the open court on this the 13th day of February 2020).
(NAGARAJEGOWDA.D) C/C. XII Addl. C.M.M., Bengaluru.
ANNEXURE Witness examined on behalf of the complainant:
PW-1 : Sri. Kondaiah Documents marked on behalf of the complainant:
Ex.P.1 and Ex.P.2 : Two cheques
Ex.P.1(a) and Ex.P.2(a) : Signature of the accused
JUDGMENT 22 CC.No:4504/2016
Ex.P.3 and Ex.P.4 : Bank endorsements.
Ex.P.5 : Legal notice.
Ex.P.6 : Postal receipt.
Ex.P.7 : Postal acknowledgement.
Ex.P.8 : Certified copy of order
sheet in
OS.No:6557/2015.
Ex.P.9 : Certified copy of the
plaint in the said suit
and also written
statement filed by 11th
Defendant who is the
accused in this case.
Ex.P.10 : Copy of written
statement filed by the
accused in that case.
Ex.P.11 : Certified copy of FIR in
Crime No:400/2015.
Ex.P.12 : Certified copy of order
sheet in the said case.
Ex.P.13 : Work order dated
14/02/2013.
Ex.P.14 : Form VAT-8
Ex.P.15 : Joint Development
Agreement dated
30/06/2017.
Ex.P.16 : Colour photos of the
building constructed by
the accused.
JUDGMENT 23 CC.No:4504/2016
Ex.P.17 : Project "Saravana" with
exclusive marketing
rights of landlord share
brochure.
Witness examined on behalf of the accused:
- None -
Documents marked on behalf of the accused:
Ex.D.1 : Legal notice dated 18th June
2014.
Ex.D.2 : Reply notice dated 3rd July
2014.
(NAGARAJEGOWDA.D)
C/C. XII Addl. C.M.M., Bengaluru.
JUDGMENT 24 CC.No:4504/2016
13/02/2020
Complainant - RS
Accused - SVB
Judgment
(Judgment pronounced in the open court vide separate order) ORDER Acting under Section 255(1) Cr.P.C the accused is acquitted from the alleged offence punishable under Section 138 of Negotiable Instruments Act.
The accused is set at liberty and his bail bond and surety bond if any will be continued for a period of 6 (six) months in compliance under Section 437(a) Cr.P.C.
(NAGARAJEGOWDA.D) C/C. XII Addl. C.M.M., Bengaluru.
JUDGMENT 25 CC.No:4504/2016