Bangalore District Court
Sri. Jenukal Designs vs Turquoise And Gold Apparels on 30 November, 2021
IN THE COURT OF XXXVIII ADDL.CHIEF METROPPOLITAN
MAGISTRATE, BENGALULRU
Present : Sri. P. Shivaraj,
B.Com. LL.B.
XXXVIII A.C.M.M Bengaluru
Dated this the 30th day of November2021
C.C.NO:6842/2019
COMPLAINANT: : Sri. Jenukal Designs,
Registered Partnership,
Rep. By. Its Partner,
Sri. Sridhar J. C.,
Having Office at : No.48/2,
SKS Compound,
Masjid Compound, Kudlu Gate,
7th Main, Hosur Road,
Bangalore - 560 068.
(Rep. By. Sri. N. Krishna
Murthy Advocate)
Vs/
Accused : 1.Turquoise and Gold Apparels
Pvt., Ltd.,
Having its office at : No.24,
KSSIDC Industrial Estate,
Yelahanka, Bangalore - 560 064.
2. Dimple Varma,
Managing Director,
Turquoise and Gold
Apparels Pvt., Ltd.,
R/at The Gallop Avalahalli
Estate, Yelankha,
Bangalore North Taluk,
Bangalore - 560 064.
And also at IVRY Compound,
Ramgondanahalli,
Singanayakanahalli Post,
Near Nagarjuna School,
Yelahanka, Bangalore - 560 064.
(Rep. By ATV Legal Advocate)
2 C.C.No.6842/2019
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 : 30.11.2021.
(P. SHIVARAJ)
XXXVIII A.C.M.M.
Bengaluru.
: J U D G E M E N T :
The Complainant is a register partnership firm, one of
it's Partner Mr. Sridhar J.C., filed the private complaint U/s
200 of Cr.P.C. against the accused alleging that, accused has
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 firm is doing the business of
computer embroidering under the name of Sri Jenukal
Designs. Accuses no.1 is the company and Accused no.2 is
the managing director of accused no.1 company and they are
dealing with the textail and garments business. Complainant
firm supplied and delivered various materials under various
invoices of worth Rs.4,31,000/ (including tax) to the accused
as per his/it's purchase order. Accused failed to pay the
aforesaid invoice amount. Accordingly in order to repay the
aforesaid loan amount, accused has issued the following
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cheques, in favour of the complainant firm, which are drawn
on Bank of India, Bangaluru branch.
Date Cheque no. Amount
20.11.2018 207641 2,31,000/-
05.12.2018 207642 2,00,000/-
3. As per the instructions of the accused, complainant
firm presented the aforesaid cheques for encashment through
its banker. The aforesaid cheques was returned
dishonoured/unpaid, with an endorsement "Funds
Insufficient" to that effect complainant firm received the
cheques return memo's from its banker on 19 th,28th January .
Complainant firm informed the aforesaid fact to the accused
and issued legal notice to the accused with a request and
demand to repay the cheques amount with in fifteen days.
The said notice was duly served to the accused. Accused has
not chosen to give reply nor he paid the cheques amount.
Complainant firm alleged that, accused has intentionally not
maintained the sufficient amount in his account to honor the
cheques. In as much, accused has committed the offence
punishable under section 138 of N.I.Act. On the aforesaid
allegations, the complainant firm approached this court and
prays this court to punish the accused and to award the
compensation.
4. Originally the private complaint was filed before
Hon'ble XVACMM court Bengaluru. The learned presiding
officer of that court, took the cognizance for the offence
4 C.C.No.6842/2019
punishable U/s 138 of N.I.Act and recorded the sworn
statement of the authorised person of the complainant firm.
On finding primfacie case, process was issued to the
accused persons.
5. After service of the summons to the accused
persons, A2 has appeared before the aforesaid 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 were supplied to the accused
before the aforesaid court. In order to prove the guilty of
the accused, the Partner of the complainant firm adopted
the evidence adduced at persummoning stage as his
(adopted) examinationinchief and he relied on 18
documents which are at Ex.P1 to 18.
6. Later when the case is set down for cross
examination of PW1 as per order of that court dt.05.03.2020
case papers returned to the complainant and the same is
represented before this court. Accused has not chosen to
cross examine the PW1 after obtaining sufficient opportunity
from this court accordingly cross of PW1 is taken as nil on
09.09.2021
7. Accused has not chosen to appear before this court
to record his statement U/s.313 of Cr.p.c. There is no
material on record to show that accused is prevented from
appearing before this court.
5 C.C.No.6842/2019
8. Both the parties are permitted to file their written
arguments on merits but they failed to comply the same. I
have perused the material available on record.
9. The following points that arise for my
determination:
:P O I N T S:
1. Whether the complainant firm proves
beyond reasonable doubt that, the
accused has 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:
REASONS
11. Point No.1: PW1 being the partner of the
complainant firm, he reiterated the complaint averments in
heis sworn statement affidavit, which is treated as his
examinationinchief.
12. Complainant firm has relied on Ex.P1,2 cheques,
Ex.P3 to 8 cheque return memo's, Ex.9 office copy legal
notice sent to the accused. Ex.P10 to 12 postal recipes,
Ex.P13 postal RPAD and Ex.P15 to 18 copy of invoices.
6 C.C.No.6842/2019
13. Accused has not denied nor disputed the issuance
of cheques to the complainant firm as per the Ex.P1and 2.
Inasmuch, the initial statutory presumption attached to the
cheques as per Sec.118(a) and 139 of NI Act has to be
raised in favour of the complainant firm.
14. In order to rebut the initial statuary presumption
attached to the cheques, accused has not chosen to cross
examine the PW1. The oral testimony and documents relied
on by the complainant firm and the initial statuary
presumption remained un rebutted and un impeached.
There is no material on record to show that accused is
prevented from appearing before this court. The accuse
abstain before this court shows that he has accepted his
guild and the transaction with the complainant firm. If the
version of the complaint firm is false, no doubt accused
could have fairly participated in the trial before this court.
The conduct and approach of the accused establishes that
he has accepted the entire case of the complainant firm in to
to. Inasmuch there is material on record to disbelieve the
case of the complainant firm.
15.Admittedly, accused has not placed any convincing
evidence nor made any effort to elicit any material facts from
the mouth of PW1 to improbablise the existence of debt as
alleged by the complainant firm. Considering and looking
into the same I,am of the firm opinion that, initial statutory
presumption attached to the cheques cannot be said to have
7 C.C.No.6842/2019
been rebutted by the accused. Hence by considering facts
attending, circumstance of the case and by considering the
conduct of accused and with the aforesaid discussion, I am
answering this point in the affirmative .
16. Point No.2: In view of the reasons and discussion
made above, 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 a fine amount of Rs.4,61,800/to the complainant firm, in default he has to under go simple imprisonment for one year.
Out of the said fine amount, an amount of Rs.4,56,800/ is ordered to be paid to the complainant firm as compensation. The remaining amount of Rs.5,000/ 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 persons forthwith.
(Dictated to the stenographer and transcribed and computerized by her, corrected by me and then pronounced by me in the open court on 30th day of November2021) (P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.
8 C.C.No.6842/2019ANNEXURES:
1) List of Witness Examined on be half of Complainant firm:
PW.1 : Sri. Sridhar J. C
2) List of exhibits marked on be half of Complainant firm:
Ex.P.1 & 2 : Original two Cheques. Ex.P.1(a) & 2(a) : Signatures of the accused. Ex.P.3 to 8 : Bank endorsements. Ex.P.9 : Copy of Legal notice. Ex.P.10 to 12 : Postal receipts. Ex.P.13 & 14 : Postal covers.
Ex.P.15 to 18 : Invoices.
3) List of exhibits marked on be half of the Accused: NIL
4) List of Documents Marked on be half of the Accused : NIL (P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.9 C.C.No.6842/2019
30.11.2021 (Judgment pronounced in Open Court vide a 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 a fine amount of Rs.4,61,800/to the complainant firm, in default he has to under go simple imprisonment for one year.
Out of the said fine amount, an amount of Rs.4,56,800/ is ordered to be paid to the complainant firm as compensation. The remaining amount of Rs.5,000/ 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 persons forthwith.
(P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.
10 C.C.No.6842/2019