Bangalore District Court
Sri Raju Metur S/O Govindarajulu Metur vs M/S Archsource Designs Llp on 28 December, 2021
IN THE COURT OF THE XIII ADDL.CITY CIVIL & SESSIONS JUDGE
Mayohall unit: Bengaluru. (CCH:22)
PRESENT: - Smt. Suvarna K. Mirji, B.Com., LL.B.[Spl]
XIII Addl. City Civil and Sessions Judge,
Bengaluru.
Dated this the 28th day of December 2021
CRIMINAL APPEAL No.25230/2018
Appellant :- 1. Sri Raju Metur S/o Govindarajulu Metur,
Aged about 52 years, Residing at No.201,
2nd Floor, Krishna Kuteera,
1st Main, Sudharashana Layout,
Gottigere, Rarajeshwarinagar,
Bangalore-560 078.
(Rep by Sri. Sri K.S. Sreekantha, Advocate)
V/s
Respondent : 1. M/s Archsource Designs LLP.,
Having its registered office at
No.015, Salarpuria Cambridge Residency,
1st Cross, Cambridge Layout,
Ulsoor,
Bengaluru-560 008,
Represented by its Partner
Mr. Burjor Kothawalla.
(Rep by Sri H.S. Sachidananda, Advocate)
2
Judgment Crl. A. No.25230/2018
:JUDGMENT:
The appellant/accused filed this appeal U/s 374 of Cr.PC praying to set aside the Judgment of conviction and sentence passed by the LVII ACMM, Mayohall Unit, Bengaluru in CC.No.50748/2017 on 03/11/2018 for an offence punishable U/S 138 of Negotiable Instrument Act.
2. The appellant is accused and respondent is complainant before court below. The rank of both parties are referred as referred before the court below.
3. The brief facts of prosecution case is as under:-
The partner of complainant company submits that complainant is LLP registered under the provisions of the Limited Liability Partnership Act and carrying on its business at the address mentioned above which is also its registered office. The 3 Judgment Crl. A. No.25230/2018 complainant vide its resolution dated 22/11/2016 has duly authorized its Partner Burjor Kothawalla to represent it before this Court in the above case. The complainant had engaged the services of the accused as an Accountant for preparing the books of accounts as well as handling TDS and Service Tax computation as well as payment of TDS and Service Tax to the concerned Tax Department to be paid on behalf of the Complainant for which the Complainant used to transfer the required taxation amounts to the account of the accused for online payment by the accused to the required tax departments. The complainant had accordingly on various occasions transferred in all sum of Rs.3,75,945/- to the Bank account of the accused bearing No.00000020061646181, State Bank of India, Bannerghatta Road Branch, Bengaluru towards the payment of TDS on salaries of the complainant's employees and service tax. The above said amounts were transferred vide NEFT/RTGS to the 4 Judgment Crl. A. No.25230/2018 account of the accused. Instead of paying the TDS and Service Tax to the concerned Authorities, the accused utilized the sums transferred to his account for his own personal use. The complainant came to know of this fact when the service tax returns and the TDS returns were verified.
4. The partner of complainant company further submits that when this fact of non payment of the dues to the Authorities was brought to the notice the accused, he admitted to not having remitted the TDS and Service Tax to the respective Departments and having instead utilized the for his personal use. At that time the accused also issued a letter dated 01/10/2016 admitting to the misuse of the money and assured the Complainant that he would repay the sums along with interest and penalties which amounted to Rs.4,13,540/- on or before 06/10/2016. That owing to the misuse of the funds by the accused the complainant was forced to 5 Judgment Crl. A. No.25230/2018 pay the sums due to the departments along with interest and penalty which was levied by the respective departments on account of the delayed payments, which totally came to Rs.4,13,540/-. Thus the accused became liable to pay the complainant the above said sum of Rs.4,13,540/-. That when they contacted the accused on 06/10/2016 he initially evaded them and finally on 13/10/2016 issued two cheques bearing No.533578 and 533583, both dated 13/10/2016 drawn on State Bank of India, Bannerghatta Road Branch, Bangalore for a sum of Rs.2,81,875/- and Rs.1,31,665/- respectively in all totaling to Rs.4,13,540/- towards the sums due and payable to the complainant.
5. The partner of complainant company further submits that at the time of issuance of the above said cheque the complainant was assured that the amounts covered by the cheques would be cleared for payment on presentation to their bankers. The 6 Judgment Crl. A. No.25230/2018 complainant believed in the representations of the accused and accepted the said cheques. That when the complainant presented the said cheques for encashment through its Bankers M/s Kotak Mihindra Bank, at Indiranagar Branch, Bangalore was shocked to receive an endorsement dated 07/11/2016 stating 'Insufficient Funds'. On 24/11/2016 the complainant got issued a legal notice to the accused at the addresses shown in the cause title above, by registered post acknowledgement due, thereby calling upon the accused repay the amounts covered by the cheques. The said notice sent to the address was returned with the postal endorsement 'Address Left'. The accused has deliberately avoided payment of the cheque amounts to the complainant. The accused has thus failed and neglected to pay the amounts due to the complainant within the period contemplated under the provisions of the Negotiable Instruments Act.
7
Judgment Crl. A. No.25230/2018
6. The partner of complainant company further submits that the cause of action for this complaint arose when the cheques were issued by the accused, when they were presented by the complainant to its Bankers, when the cheques were returned unpaid, when the complainant had notice of the dishonor of the cheque on 07/11/2016, when the legal notice was got issued to the accused on 24/11/2016 when the postal cover was returned on 30/11/2016 with the aforesaid postal shara and when the accused failed to make payment within the statutory period of 15 days thereafter within the jurisdiction of this Court. That in these circumstances without any alternative remedy he has filed above complaint against the accused punishable under section 138 of the Negotiable Instrument Act-1882. That the dishonor of the cheque is an offence punishable U/s 138 of NI Act and the accused has issued the said cheque without maintaining 8 Judgment Crl. A. No.25230/2018 his account properly in order to satisfy the cheque issued by him Thus the accused has committed an offence punishable U/s 138 of the Negotiable Instrument Act. The complainant prays to take cognizance against the accused for offence punishable U/S 138 of Negotiable Instruments Act and punish the accused for the said offence in accordance with law.
7. The Magistrate Court recorded the sworn statement of complainant and thereafter taken cognizance against the accused for the offence punishable U/s 138 of Negotiable Instrument Act and issued summons to the accused. The accused appeared before the court and released on bail. The Magistrate Court recorded plea of accused and the accused denied the same as claimed to be tried. The complainant examined as PW.1 and marked the documents ExP1 to ExP9. Thereafter the Magistrate Court recorded the statement of accused U/s 313 of Cr.PC the 9 Judgment Crl. A. No.25230/2018 incriminating the evidence came against the accused he denied the same. Thereafter on hearing the arguments of the both sides the Magistrate Court pronounced the judgment on 03/11/2018 convicting the accused for an offence punishable U/s 138 of N.I Act and sentenced the accused to pay Rs.5,000/-, in default to pay fine amount the accused shall under go S.I for three months and in terms of Sec.357(1) of Cr.P.C the compensation is awarded to the complainant by directing the accused to pay Rs.5,63,414/-, in default to pay compensation amount, the accused shall under go S.I for one year. Aggrieved by the said conviction Judgment of trial court the accused/ appellant preferred present appeal on following the grounds.
8. The appellant/accused submits that the findings given, conclusion arrived, decision taken by the Courts below to the facts of the case, material on record and on the contrary to the 10 Judgment Crl. A. No.25230/2018 law, equity, justice and same are liable to be dismissed in limine. That on 07/08/2018 PW.1 was cross examined fully and after cross examination of PW.1, the matter posted on 19/08/2018 for 313 Statement. On 19/08/2018, the accused was present and 313 Statements were recorded by court below. But the accused could not understand the next posting on 12/09/2018 and hence he informed to his counsel the above case was posted for 313 Statement on 12/09/2018. The accused was present on 12/09/2018 and he noted only the next date of hearing on 30/10/2018 and informed his counsel for 313 statement. Hence the accused assume that his evidence stage not been posted and also he keep all the records to prove his defence. That on 30/10/2018 the accused prays time to lead evidence, but the court below rejected the prayer of the accused and posted for Judgment on 03/11/2018. On that event also the accused wrongly noted the date of adjournment as 13/11/2018 instead of 11 Judgment Crl. A. No.25230/2018 03/11/2018. Hence the accused came to know that the result of the complaint only in the evening of 13/11/2018. Hence court below not given opportunity to accused to lead evidence and produce documents to prove his defence in the false complaint filed by the complainant. In the cross examination of PW.1 the appellant taken particular contention that the cheque amount mentioned in ExP1 & 2 is filled up by forcibly before the Police Station and the said amount is imaginary one, in support of the said amount, the Complainant/Respondent has not produced any single document to show the existing liability against the appellant. It is clearly reveals that the respondent/complainant failed to establish the existing liability or any outstanding amount from the accused to the complainant. That the whole transaction or alleged the outstanding stated in the complaint is fully based on the statement of accounts. In his cross examination of PW.1 he undertake to produce the statement of accounts, showing the 12 Judgment Crl. A. No.25230/2018 existing liability by the appellant. But, the respondent failed to produce any single document showing the existing liability as shown in ExP1 & P2. Hence the respondent utterly failed to prove the existing liability and the appellant and for proving the ExP1 & 2 cheque was issued, discharging the debt in favour of the complainant. That it is the case of accused that alleged ExP1 & 2 cheque was forcibly collected by the Chartered Accountant of the complainant, before the Jayanagara Police Station and the said cheque was transferred to the complainant and complainant filed the complaint before the Trial Court alleging the offence 138 of the Negotiable Instrument Act, but the trial court utterly failed to give an opportunity to the accused either to lead the evidence of the accused and to his supporting witness.
9. The appellant further submits that the complainant transferred the amount to the accused account which is bearing 13 Judgment Crl. A. No.25230/2018 No.000020061616181, drawn on State Bank of India, Bannerghatta Road, Bengaluru. But, the complainant has not produced the statement of accounts or his pass book for proving the transfer of the amount as alleged in the complaint. On that ground alone, the Judgment/Order, dated 03/11/2018 is liable to be set aside. As per ExP9 the outstanding amount sum of Rs.2,56,250/-, but the said amount has not been tallied with the Ex.P1 and P2. The said ground raised in the cross examination of PW1, but the trial court failed to appreciate the evidence and defence of the accused while passing an order/Judgement on 03/11/2018. The trial court wrongly come to conclusion that only the accused admitted the signature alleged in the ExP1 & P2 and also the trial court failed to take any contention raised in the cross examination by the accused to the Complainant. Hence trial court without verifying the proper records and documents, the trial Judge wrongly came to conclusion by convicting the 14 Judgment Crl. A. No.25230/2018 appellant/accused in the above complaint. The trial court has totally erred in allowing the complaint and convict the accused/appellant that trial court to appreciate document/evidence and oral evidence and also there is no proper facts. The trial court failed to appreciate the law as to presumption U/s 138 of the Negotiable Instrument Act. For the reasons that the presumption is only with respect of the facts that Cheques are issued for discharged of debt or other liability. But the presumption is not available to the fact that there is an existence of legally enforceable debt. Therefore the initial burden heavily reasons on the complainant to prove that there was an existence of legally enforceable debt. In the absence of this the accused is entitled for acquittal. Also the Complainant has failed to prove the transaction entered into between both of them. The trial judge failed to give full particulars to the respondent examined the documents and facts and circumstances of the case. That the Judgment of the 15 Judgment Crl. A. No.25230/2018 lower court is not proper which has committed lot of irregularities respondent has not proved his case beyond all reasonable doubt. The repondent has not specifically stated in his notice/Plaint that on what date exact cheque in dispute was given to the respondent and appellant is not liable to pay any amount mentioned in the alleged Cheques to the Respondent to prove legally enforceable debt. The court below committed grave error in not appreciated the evidence on record property and also intimation through the Appellant dues without evidence before the trial Judge. The appellant is totally innocent of alleged offence and respondent has not complied the necessary ingredients of Sec.138 of Negotiable Instrument Act though the Appellant has adduced sufficient evidence and during the cross examination of PW.1 has initiated sufficient materials which are helpful to appellants. In view of the above the impugned order is liable to be set aside. The appeal is not allowed irreparable loss 16 Judgment Crl. A. No.25230/2018 and hardship would be caused to appellant, on the other hand no harm or hardship would be caused to respondent if the Appeal is allowed. The court below has passed the order without considering the evidence. The court below failed to note that ingredients of Section 138 of Negotiable Instrument Act is not covered. The court below the ought to have consider all these facts and ought to have acquitted the Petitioner herein. The order was passed by the LVII Addl. Chief Metropolitan Magistrate Court on 03/11/2018 and hence, the above appeal is in time. The Appellant prays to set aside the order passed in CC No.50748/2017 dated 03/11/2018 by the in the LVII Addl Chief Metropolitan Magistrate, Bangalore and allow this appeal and acquit the appellant.
17
Judgment Crl. A. No.25230/2018
10. The Lower Court Records secured. That in spite of sufficient opportunity given, the appellant counsel not argued. The respondent counsel argued. Perused the records.
11. The Points arise for my consideration are as under.
1. Whether interference of this court in the judgment passed by trial court on 03/11/2018 in C.C.No.50748/2017 in convicting the appellant/ accused for an offence U/s 138 of Negotiable Instrument Act is needed?
2. What order?
12. My findings on the above points are as under:
Point No.1: In Negative Point No.2: See final order for following:18
Judgment Crl. A. No.25230/2018
:REASONS:
13. Point No.1:-
The sworn statement of partner of plaintiff company Burjor Kothawalla S/o Roy Kothawalla recorded before the Magistrate court he filed his affidavit as sworn statement and latter same is treated as in lieu of examination in chief as PW.1 and he deposed the evidence that, he is one of the Partner of the complainant firm and he is duly authorised by the firm to represent it in the present proceedings. The complainant is an LLP registered under the provisions of the Limited Liability Partnership Act and carrying on its business at the address mentioned above which is also its registered office. The complainant vide its resolution dated 22/11/2016 has duly authorized him to represent it before this Court in the above case. That the complainant had engaged the services of the accused as an Accountant for preparing the books 19 Judgment Crl. A. No.25230/2018 of accounts as well as handling TDS Service Tax computations as well as payments of TDS and Service Tax to the concerned Tax Departments to be paid on behalf of the complainant for owhich the complainant used to transfer the required taxation amounts to the account of the accused for online payment by the Accused to the required tax departments. The complainant had accordingly on various occasions transferred in all sum of Rs.3,75,945/- to the Bank account of accused bearing No.00000020061646181, State Bank of India, Bannerghatta Road Branch, Bangalore towards the payment of TDS on salaries of the Complainant's employees and Service Tax. The above said amounts were transferred vide NEFT/RTGS to the account of the Accused. Instead of paying the TDS and Service Tax to the concerned Authorities, the accused utilized the sums transferred to his account for his own personal use. The Complainant came to know of this fact when the Service Tax returns and the TDS returns were verified. 20
Judgment Crl. A. No.25230/2018
14. The PW.1 further deposed the evidence that when this fact of non payment of the dues to the Authorities was brought to the notice of the Accused, he admitted to not having remitted the TDS and Service Tax to the respective Departments and having instead utilized the money for his personal use. At that time the Accused also issued a letter dated 01/10/2016 admitting to the misuse of the money and assured the Complainant that he would repay the sums along with interest and penalties which amounted to Rs.4,13,540/- or or before 06/10/2016. That owing to the misuse of the funds by the Accused, the Complainant was forced to pay the sums due to the departments along with interest and penalty which was levied by the respective departments on account of the delayed payments, which totally came to Rs.4,13,540/-. Thus the accused became liable to pay the complainant the above said sum of Rs.4,13,540/-. That when they contacted the Accused on 06/10/2016 he initially evaded meeting 21 Judgment Crl. A. No.25230/2018 the complainant and finally on 13/10/2016 issued two cheques bearing No.533578 and 533583 both dated 13/10/2016 drawn on State Bank of India, Bannerghatta Road Branch, Bangalore for a sum of Rs.2,81,875/- and Rs.1,31,665/- respectively in all totaling to Rs.4,13,540/- towards the sums due and payable to the Complainant.
15. The PW.1 further deposed evidence that at the time of issuance of the above said cheques the complainant was assured that the amounts covered by the cheques would be cleared for payment on presentation to its Bankers. They believed in the representations of the Accused and accepted the said cheques.
That when the complainant presented the said cheques for encashment through its Bankers, M/s Kotak Mahindra Bank, at Indirnagar Branch, Bengaluru, they were shocked to receive an endorsement dated 07/11/2016 stating 'Insufficient Funds'. That 22 Judgment Crl. A. No.25230/2018 on 24/11/2016 legal notice was issued to the accused at the address shown in the cause title above, by registered post acknowledgement due, thereby calling upon the Accused to repay the amounts covered by the cheque. The said notice sent to the address was returned with the postal endorsement 'Address Left'. Till date the accused has neither replied to the notice nor made any effort to make any payment. The PW.1 prays to punish the accused in accordance with law. In support of oral evidence the PW.1 marked the documents ExP1 to ExP9.
16. The ExP1 is cheque bearing No.533578 of State Bank of India, Bannerghatta Road Branch, Bengaluru dated 13/10/2016 amounting to Rs.2,81,875/- said to have been executed by the accused in favour of the complainant company and ExP1(a) is marked as signature of the accused. The ExP2 is memo of Kotak Mahindra Bank regarding 23 Judgment Crl. A. No.25230/2018 dishonor of the cheque No.533578 for insufficient funds in the account of the accused. The ExP3 is the cheque bearing No.533583 of State Bank of India, Bannerghatta Road Branch, Bengaluru dated 13/10/2016 amounting to Rs.1,31,665/- said to have been executed by the accused in favour of the complainant company and ExP3(a) is marked as signature of the accused. The ExP4 is return memo of Kotak Mahindra Bank, Bengaluru regarding dishonor of the cheque bearing No.533583 for insufficient funds in the account of the accused. The ExP5 is legal notice issued by the complainant to the accused on 24/11/2016 intimating about dishonor of the cheque bearing No.533578 and 533583, Ex.P6 is postal receipt, ExP7 is unserved postal cover and ExP7(a) is another one unserved postal cover. The ExP8 is Board Resolution by complainant company authorising the complainant for filing 24 Judgment Crl. A. No.25230/2018 the complaint and deposing the evidence. The ExP9 is letter by accused to the complainant on 01/10/2016.
17. As per the complainant the complainant company engaged the service of accused as accountant for preparing the books of account as well as handling TDS and Service Tax Computation as well as payment of TDS and Service Tax to the concerned Tax Department to be paid on behalf of the complainant relating to the complainant and employees for which the complainant used to transfer required taxation amount to the account of the accused for online payment by the accused to the required Tax Department. On various occasions the complainant transferred amount of Rs.3,75,945/- to the bank account of the accused bearing No.0000020061646181 drawn on State Bank of India, 25 Judgment Crl. A. No.25230/2018 Bannerghatta Road Branch, Bengaluru towards payment of TDS on salaries of the complainant and employees and service tax and said amount was transferred through NEFT/RTGS to the account of the accused, but accused instead making payment of the TDS and Service Tax to the concerned authorities utilized the said amount for his personal use. Hence the accused is liable to pay Rs.4,13,540/- to the complainant and on enquiry by the complainant to the accused initially he evaded and finally issued two cheques bearing No.533578 and 533583 dated 13/10/2016 drawn on SBI, Bannerghatta Branch, Bengaluru for Rs.2,81,875/- and Rs.1,31,665/-. The complainant presented the said cheques through his Banker M/s Kotak Mahindra Bank, Indiranagar Branch, Bengaluru, but said cheques were dishonored as insufficient funds in the account of the accused on 26 Judgment Crl. A. No.25230/2018 07/11/2016 and inspite of issuance of legal notice accused not paid the amount.
18. On the contrary the accused counsel cross-examined PW.1 and in the cross-examination the accused denied that amount of Rs.3,75,945/- as mentioned in para-6 of the complaint has been transferred to the account of the accused on various dates. But in the entire cross-examination it is not denied that complainant was engaged the accused for the services of preparing books of account and handling TDS and Service Tax computation and payment of TDS and Service Tax of the complainant and employees. Further in the cross examination the accused counsel suggested to the PW.1 and PW.1 deposed the evidence that "It is false to suggest that in order to harass the accused I have obtained the ExP1 & 2 cheques 27 Judgment Crl. A. No.25230/2018 forcibly and filed the false case against the accused." Hence the suggestion of accused counsel discloses that the cheques ExP1 & 2 belongs to the accused, but the contention is that the complainant has taken the said cheques from the accused forcibly. But for what purpose the said cheques were taken forcibly from accused is not suggested. Further the burden is on the accused to prove that there is no such amount of Rs.3,75,945/- as alleged by the complainant was transferred in his bank account. But the accused not examined before the trial court and also not produced any documents and his bank account statement to disprove the contention of the complainant regarding transfer of Rs.3,75,945/- to the account of the accused as alleged by the complainant. Further if at all the complainant taken the cheques ExP1 & ExP3 from the accused forcibly, then the accused ought to have 28 Judgment Crl. A. No.25230/2018 take legal action against the complainant company, but no such action was taken by the accused. Further the ExP1(a) and ExP3(a) signatures are marked as the said signatures are of accused on the cheques. The accused has not denied his signatures on ExP1 & ExP3. Hence the defence of the accused is not proper to accept.
19. That in the cross examination of PW.1 the accused counsel suggested that notice was not served on the accused. The ExP5 is notice issued by the complainant to the accused at his address No.201, 2nd Floor, Krishna Kuteera, 1st Main, Sudharshana Layout, Gattigere, Rajarajeshwari Nagar, Bengaluru and ExP7 is the postal cover of the notice and the same address is mentioned on the postal cover, but notice returned unserved as addressee left. That in the complaint 29 Judgment Crl. A. No.25230/2018 filed by the complainant before the trial court similar address as mentioned in the notice is mentioned in the complaint and the trial court issued summons to the accused on the same address and the said summons was duly served on the accused which is noted in the trial court records dated 07/12/2017 and the accused appeared before the Court on 02/01/2018 and released on bail. Hence the say of the accused that he is not resident of the address mentioned in the complaint is not proper to accept. Hence accused has knowledge of the issuance of the notice to him before filing of the complaint by the complainant against him. Further the Magistrate Court in its Judgment relied upon the decision reported in (2017)5 SCC 737 that if the notice sent to the accused that has been returned with endorsement stating addressee left deemed to be valid service unless the contrary 30 Judgment Crl. A. No.25230/2018 is proved. The accused has not produced any specific document to show his address where he was residing as on the date when the complainant issued notice to him on 24/11/2016 as per ExP5. Hence the say of the accused that issuance of notice is not within his knowledge is not proper to accept. As discussed above the accused failed to prove by way of producing his bank account to prove that there is no transfer of amount as alleged by the complainant in his account regarding payment of service tax, TDS of the employees of the complainant firm. Under the circumstances the complainant proved by way of oral and documentary evidence that for payment of amount relating Service Tax, TDS of employees utilized by the accused which is transferred to his account by the complainant for making payment of amount to the concerned Tax Department relating 31 Judgment Crl. A. No.25230/2018 to the TDS and Service Tax of the employee, but same was utilized by the accused for his personal use and for discharge of said amount he issued cheque ExP1 & ExP3 and same were returned unserved as insufficient funds in the account of the accused. Even afterwards the accused has not made payment of the said amount. Hence trial court in its judgment properly appreciated all these facts and properly came to the conclusion in convicting the accused. Therefore interference of this court in the judgment passed by trial court is not needed. Therefore I answer point No.1 in Negative.
20. Point No.2:
In view of above discussion I proceed to pass following 32 Judgment Crl. A. No.25230/2018 :ORDER:
The appeal filed U/s 374 CR.P.C by the appellant/accused is dismissed.
The judgment passed in CC.No.50748/2017 on 03/11/2018 by the LVII Additional Chief Metropolitan Magistrate Bangalore is hereby confirmed.
The order of suspension of sentence passed by this court U/s 389 of CR.P.C stands cancelled.
Send back lower court records along with certified copy of Judgment of this appeal.
(Dictated to the Stenographer, typed by him. Then corrected directly in computer, then taken printout, then corrected, signed and pronounced by me in the open Court on this the 28th day of December 2021).
(Smt.Suvarna K. Mirji) XIII Addl. City Civil and Sessions Judge, Mayohall Unit: Bengaluru.