Bangalore District Court
Rishab Enterprises vs Ideal Distributor on 28 March, 2018
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this 28th day of March , 2018.
Present: Smt Shirin Javeed Ansari, BA LL.B(Hon's)LL.M
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No.31281/2014
Complainant: Rishab Enterprises,
Represented by Karta
Kishore Sureshlal
aged 40 years
S/o.Sureshlal Hiralal
No.13, 1st cross, RRMR Extension,
Shanthinagar, Bangalore 27.
(By Sri Vijay Kumar - Advocate )
- Vs -
Accused: 1. Ideal Distributor
No.30 BDA Complex
HSR layout
Bangalore 560 102.
Represented by its partner.
2.Syed Imtiyaz Ahmed
Partner /Authorized signatory
Ideal Distributor
No. 30 BDA Complex
HSR layout
Bangalore 560 102.
R/at.No.70, 17th C main, 11th cross
4th Sector, HSR Layout,
Bangalore 102.
( By B.Jayalakshmi - Advocate )
2 C.C.No. 31281/2014 .
Offence complained of: U/s. 138 of Negotiable Instruments
Act.
Plea of accused: Pleaded not guilty.
Final Order: Accused is Convicted.
Date of order: 28-03-2018
JUDGMENT UNDER SEC.355 OF CR.PC
The complainant filed this complaint under
Sec.200 Cr.P.C. against the accused for the offence
punishable under Sec.138 Negotiable Instruments Act
(For short N.I.Act).
2. The case of the prosecution is as under :
The accused No.1 is the partnership firm
and the accused no.2 is representing accused no.1
firm. The complainant further submits that accused
no.2 representing accused no.1 and being well known
to the complainant approached the complainant in
the month of August 2013 and sought for hand loan
of Rs.7,00,000/- from the complainant for short term
basis for urgent business purpose. The complainant
accordingly paid a sum of Rs.7,00,000/- by way of
cash to accused No.1 and No.2 The complainant
3 C.C.No. 31281/2014 .
submits that the accused no.1 and 2 accordingly
executed on demand promissory note and
consideration receipts dt.6.9.2013 for Rs.7,00,000/-
favour of the complainant and acknowledged to have
received the aforesaid sum from the complainant and
undertook to repay the same with interest. @ 1%
p.m.
3. The complainant submits that on repeated
demand and request made by the complainant to the
accused no.2, to repay the aforesaid borrowed
amount, the accused no.2 representing accused no.1
issued a cheque bearing No. 837672 dt.10.03.2014 for
a sum of Rs.7,00,000/- drawn on Punjab National
bank, BDA complex HSR layout, Bangalore in favour
of the complainant towards balance of principal
amount due by accused no.1 and 2. The complainant
presented the said cheque through, Union Bank of
India, Avenue Road Branch, Bangalore on 10.3.2014.
The afore said cheque returned dishonored with
remarks "payment stopped by the drawer" as per
respective memo dt.11.3.2014. This suffices to say
4 C.C.No. 31281/2014 .
that the assurance and representations made by
accused no.1 and 2 at the time of issuance of said
cheque and thereafter was false and dishonest to their
knowledge and deliberately made with view to deceive
the complainant.
4. The complainant further submits that accused
no.1 and 2 have executed on demand promissory
notes and consideration receipt and the accused no.2
representing the accused no.1 has signed and issued
aforesaid cheques in favour of the complainant
towards discharge of legally enforceable debt and have
failed to honor the cheques on presentation. Thus, by
their action accused no. 1 and 2 committed an offence
punishable u/s.138 Negotiable Instrument Act and
accused no. 1 and 2 are liable to be prosecuted for
the offence as stated above.
5. Therefore, the complainant issued legal notice
to the accused dt.15.3.2014 and they have been duly
served on 17.3.2014. Despite, of that , the accused
no.1 and 2 have not bothered either to reply to the
said notice or to pay the cheque amount even after
5 C.C.No. 31281/2014 .
expiry of 15 days from the date of issuance of notice.
Therefore, the complainant is entitled for
compensation towards face value of afore said cheque
with interest at 18% pa and other legal and incidental
charges as provided under Sec.357 Cr.P.C . Hence,
this complaint.
6. In pursuance of the process issued, the
accused appeared before the court on 30.1.2015 and
is on bail.
7. Copy of the prosecution papers are furnished
to the accused as required under law.
8. Plea under Sec.138 N.I.Act is framed, read
over and explained to the accused in vernacular. The
accused pleaded not guilty and claimed the trial.
9. PW1-got examined and got marked the
documents at Ex.P.1 to Ex.P.9 for the complainant .
10. The incriminating circumstances found in
the case of prosecution against the accused is read
over and explained to the accused in vernacular. No
oral or documentary evidence lead on behalf of the
accused.
6 C.C.No. 31281/2014 .
Heard arguments and perused the material
on record.
11. On the basis of the contents of the
complaint the following points arise for my
consideration. :
1. Whether the complainant proves
beyond reasonable doubt that
the accused is/are guilty of
alleged offence?
2. What order ?
12. My findings to the above points
are as follows"
Point No.1 :In the Affirmative.
Point.No.2 :As per final order for
the following:
REASONS
13.Point No.1: The complainant has filed the
complaint alleging that the accused has committed
an offence punishable u/s.138 Negotiable Instrument
Act. It is the case of complainant that the
complainant is a businessmen dealing in the
business of silk. The accused no.2 being the partner
of accused no.1 is known to the complainant since
7 C.C.No. 31281/2014 .
many years. The accused no.2 approached the
complainant for want of hand loan of Rs.7,00,000/-
to overcome his business difficulties on short term
basis. Accordingly, the complainant gave hand loan of
Rs.700000/- to the accused no.2 Further the accused
no.2 also executed on demand promissory notes .
Further the accused no.2 failed to repay the said loan
amount, hence, the complainant started making
repeated demand and personally approached the
accused no.2 for which accused no.2 issued a
cheques bearing No. 837672 dt.10.03.2014 for a sum
of Rs.7,00,000/- drawn on Punjab National bank,
BDA complex HSR layout, Bangalore, The said cheque
was presented by the complainant through his
banker. But, the same dishonored with remarks
"payment stopped by the drawer" . Despite repeated
demands and requests made by the complainant , the
accused neither paid the cheque amount nor headed
to the request of the complainant . Hence, the
complainant got issued legal notice dt.15.3.2014 to the
accused no.1 and 2 which are duly served upon the
8 C.C.No. 31281/2014 .
accused no.1 and 2 on 17.3.2014. Despite service of
legal notice, the accused neither paid the cheque
amount nor replied to the said notice . Hence , the
complainant has filed the present complaint .
14. On the other hand, it is argued by the
defence counsel that the accused No.2 knows the
complainant personally since he had seen him once in
his shop. The accused is not aware of Rishab
Enterprises and he is also further not aware of
representatives of M/s. Maharashtra Silk Center, i.e.
Sureshlal Hiralal .
15. The learned counsel for the accused argued
that the complaint filed against him are prima-facie
not maintainable either in the eyes of law or on the
basis of facts. The complainant has represented
before this court that he is the karta , but, he has
failed to establish that he is the karta of family. The
accused has not taken any money from the
complainant by way of cash. Any transaction above
Rs.20,000/- has to be made in compliance to Income
Tax Act. The complainant is falsely accusing the
9 C.C.No. 31281/2014 .
accused of taking a consolidated amount of
Rs.27,00,000/- from all the cases within period of 1
month. The complainant in all the cases never had
the capacity to pay consolidated sum of
Rs.27,00,000/- within one month
16. The learned counsel for the accused argued
that the complainant has not mentioned either in his
complaint or in his sworn statement as well as
affidavit evidence as to when and how the subject
matter money was handed over to the accused. The
accused has further stated that the complainant is
known to the accused since the complainant himself
was interested in the mattress business of the accused
and wanted to understand the business of the
accused. Accordingly, the complainant i.e Kishore
Sureshlal used to frequently visit the office of the
accused situated at BDA complex HSR layout,
Bangalore.
17 The learned counsel for the accused argued
that the accused is in the habit of signing the blank
cheques and letter heads in order to facilitate smooth
10 C.C.No. 31281/2014 .
functioning of his business. The accused used to leave
the signed cheques and letter heads in his office. The
accused frequently travels in order to purchase raw
materials for manufacture of mattress and he did
not want the business to get hampered during his
travel. Therefore, the cheques and letter heads and
other documents were readily made available at his
office. The subject matter of cheque bearing No.
837672 is one among the undated blank cheques
which the accused signed and reserved them for
business purpose.
18. It is further argued by the learned counsel
for the accused that the accused was traveling
extensively in year 2013 and early 2014. Upon his
return, the accused noticed that few of important
papers, pro-notes, and vital documents kept in file
were missing. The accused was able to trace cheque
numbers and immediately communicated with bank to
stop payment . The subject matter cheques are part of
said missing cheques for which the accused instructed
11 C.C.No. 31281/2014 .
his banker to stop payment. The seal found on
Promissory notes are fabricated .
19. The learned counsel for the accused argued
that he has not issued any cheque to the complainant
towards the discharge of any legally enforceable debt
or liability. The complainant has not lent any money
to the accused personally or M/s. Ideal Distributors.
The accused was never in need of such huge sum as
loan . The accused had never at ant point of time
taken any sum as loan or debt from the complainant .
There is no existing legal liability between the
complainant and the accused . The accused never
approached the complainant seeking any financial
help. The complainant could not have such huge sum
in cash in possession and at their disposal. The
complainant has taken undue advantage of the stolen
cheques by presenting the same for encashment. The
complaint is made with malafide intention and to
wreck vengeance against the accused for the reason
best known to the complainant. The complainant
fabricated the documents to support his case. The
12 C.C.No. 31281/2014 .
complainant failed to establish the real/ sufficient
reason for not entering the witness box and thereby
contesting the case through special power of attorney
holder. Therefore, the accused prays to dismiss the
complaint.
20. During the course of arguments, learned
counsel or the complainant vehemently argued before
the court that the complainant has produced the
documents marked at Ex.P.1 to Ex.P.9 which clearly
support the case of the complainant. The complainant
produced the cash book and ledger extract to
discharge the burden. The ledger is maintained by
the complainant in due course of business, and the
same has to be considered by this court. During the
arguments, the learned counsel for the complainant
again referred the documents produced by the
complainant .
21. In order to prove his case, the complainant
is examined as PW 1. The complainant has reiterated
the complaint averments in the sworn statement
affidavit which was also treated as his chief-
13 C.C.No. 31281/2014 .
examination . The complainant further relied on the
documents at Ex.P.1 to Ex.P.9 ,Ex.P.1 is the On
demand promissory notes and consideration receipts.
The signatures of the accused are at Ex.P.1 (a) (b)
Ex.P.2 is the cheque in question . Ex.P.2(a) is the
signature of accused. Ex.P.3 is the bank memo.
Ex.P.4 is the office copy of the legal notice. Ex.P4(a) (c)
are the postal receipts. Ex.P.4(d) to (f) are the postal
acknowledgement. Ex.P.5 and P.6 are the Ledger
Extracts. Ex.P.7 is the Ledger Book. Ex.P.8 is the
cash book. The translation of cash book is marked at
Ex.P.9 (b). Ex.P.9 is the Income Tax return along with
the certificate u/s.65(b) of Evidence Act.
22. On the other hand, learned counsel for the
accused vehemently argued before the court that the
documents produced by the complainant are not at
all in accordance with the pleadings of the
complainant himself. The complainant has not
discharged his burden . The documents produced by
the complainant especially Ex.P.5 and P 6 , the
Ledger Extracts maintained by the complainant
14 C.C.No. 31281/2014 .
himself during the course of business, the cash book
and the ledger folio does not match with each other.
23. It is further argued by learned counsel for
the accused that only 1 % of the interest is alleged to
have been charged in the promissory note,. But
interest of 1 % has neither been mentioned in Ex.P5
and P.6 nor reflected in the cash book of the
complainant. The circumstances are highly improbable
that the complainant had money to lend .
24. It is also argued by the learned counsel for
the accused that the Income Tax return form
produced by the complainant is marked subject to
objections before the court. Nowhere it is reflected
that the accused has taken Rs.7,00,000/- from the
complainant as hand loan. It can only be found if the
balance sheet of the complainant is produced. The
complainant has vehemently stated in his cross
examination that one Mr Mahesh Chandra Accountant
of the complainant looks after all the account
matters, but, said Mahesh Chandra has not been
examined by the complainant .
15 C.C.No. 31281/2014 .
25. Though the complainant states in his
evidence that his wife and father witnessed the
transaction, but, neither the wife of the complainant
nor his father have been examined before court.
26. Absolutely the complainant has not
mentioned as to when the accused issued the alleged
cheques to the complainant. The complainant neither
explained this aspect of the matter in his notice,
complaint , nor in the evidence . Admittedly, the
complainant had no any transaction with the accused
person before August 2014. The complainant had no
idea about the yearly turn over of the accused person .
He does not know the financial status and the
condition of the person to whom he is lending the
money. The arguments canvassed by the learned
counsel for the complainant in this regard cannot be
accepted.
27. It is further argued by the learned counsel
for the accused that over and above in 1 month the
complainant has lent amount of Rs.27,00,000/- to
the accused on various dates in the month of
16 C.C.No. 31281/2014 .
September. But, the complainant and her husband
have not at all shown the source income to prove
financial capacity to lend Rs.27,00,000/- in one
particular month out of their income. The
complainant has not at all produced any documents
to that effect. Though Income Tax return is produced,
but they are marked subject to objections. The
cheques and the pro-note belonging to the accused
person have been stolen from the custody of his office .
Therefore, the accused has given stop payment
instructions to his banker. The accused has reacted
as early as possible to this situation. It is further
argued by the learned counsel for the accused that
the complainant has violated the provisions of Income
Tax Act also. Therefore, considering this aspect of
the matter the learned counsel for the accused
submitted that there are material discrepancies in the
evidence of the complainant. The case of the
complainant is full of material suspicion. Hence,
prayed for acquittal of the accused.
17 C.C.No. 31281/2014 .
28. Of course, there is no dispute that the
complainant and the accused are acquainted with
each other because of their respective business. The
accused does not dispute the fact that the cheque in
question relate to the account held by him with
Punjab National Bank. The accused also does not
dispute the signature found on the cheque and the
promissory note.
29. On perusal of the material available on
record it is found that the accused neither lead his
defence evidence nor produced any documents before
the court in order to prove his defence. The accused
has not produced the letter issued by him to the bank
authority to stop the payment. It is suggested to PW
1 in the cross examination that the alleged signature
of the accused on the on demand promissory notes
produced in this case have been forged by the
complainant and that they are not the signature of
the accused. . But, to prove this aspect of the matter
the accused has not produced any documents.
Absolutely no effort has been done on the part of the
18 C.C.No. 31281/2014 .
accused to prove his defence. Even if it is presumed
for a moment that the signature found on Ex.P.1 on
demand promissory note are not that of accused
person , even then, the accused has not made any
efforts before the court to satisfy and to clarify the
court as to which are the real signature of the accused
person. Except this suggestion absolutely there is no
further suggestion made by the accused to the
complainant in the cross examination . No doubt the
accused has taken defence. But it appears that the
accused has taken up defence only for the name sake.
There is no effort on the part of the accused to prove
the said defence.
30. The accused has not come forward to lead
the evidence either of himself or any of his employees
or staff to prove his defence. The non production of
the letter issued to the bank authorities further
creates doubt on the very defence of the accused. It
appears that the accused has taken up the present
defence only for the purpose of avoiding the liability.
19 C.C.No. 31281/2014 .
Except the self serving statement of the accused,
there is nothing on record to prove his defence
31. The accused has challenged the financial
capacity of the complainant and the counsel for the
accused vehemently argued before the court that the
complainant within the span of 1 month cannot pay
such huge amount of money to the accused. To
disprove this aspect of the matter the complainant
has produced Ex.P.9 - the income tax return of the
year 2014 -15 wherein the total income of the
complainant is reflected as Rs.36,54,793 /- . This
aspect of the matter clearly shows that the
complainant is an income tax payee who had duly
filed the returns before the appropriate authority and
had sufficient income to lend money to the accused
person.
32. Though the accused in the cross examination
of PW 1 has put forth before the court that the
complainant has forged the signature of the accused
on the on demand promissory note marked at Ex.P1,
but, he has not produced any documents to that
20 C.C.No. 31281/2014 .
effect. After taking the defence, the accused at least
should have made an attempt before this court to
produce any documents to show that how the
signature of the accused on promissory note differ
from that of the real signature of the accused. But in
absence of any such effort by the accused person , it
is highly impossible to believe the defence of the
accused person.
33. The plea of the accused is recorded in this
case and at the time of recording plea, the accused has
not put-forth any of the defence before the court.
Even after recording statement of the accused
u/s.313 Cr.P.C., the accused has clearly stated before
the court that he has no defence evidence to be made.
No doubt it is well settled principle of law that the
accused need not produce any documents and go to
prove the negative evidence . The accused can disprove
the case of the complainant either by taking specific
defence or by atleast relying upon the document
produced by the complainant himself. But on careful
perusal of the cross examination of PW 1, it appears
21 C.C.No. 31281/2014 .
that the accused though has taken up defence of the
cheques and the letter heads and other important
document being misplaced in his office, but,
absolutely there is no proof with regard to the same. It
appears that the defence is taken up only for the sake
of name in order to avoid the liability, Therefore, the
arguments canvassed by the learned counsel for the
accused in this regard does not hold water . The
complainant by producing Ex.P.1 to P.9 has
successfully proved his case beyond reasonable
doubt. But, the accused has failed to rebut the
presumption available in favour of the complainant .
Therefore, in view of this I answer Point No.1 in the
Affirmative.
34. Point No.2: In view of the reasons stated
and discussed above, the complainant has proved the
guilt of the accused for the offence punishable under
Sec.138 Negotiable Instruments Act .
Hence, I proceed to pass the following :
22 C.C.No. 31281/2014 .
ORDER
Acting u/s.255(2) Cr.P.C accused No.1 and 2 are convicted for the offence punishable under Sec.138 Negotiable Instruments Act and accused No.2 is sentenced to pay fine of Rs.7,60,000/-.(Rs.Seven Lakhs Sixty Thousand Only) In default, he shall under go SI for a period of one year .
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.7,50,000/-.(Rs.Seven Lakhs Fifty Thousand Only) towards compensation amount.
Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.10,000/- (Rupees Ten Thousand Only) is confiscated to the State .
Furnish free copy of judgment and order to convicted-accused.
(Dictated to the Stenographer directly on the computer, typed by her , corrected and signed then pronounced by me in the open court on this the 28th day of March , 2018).
(SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.
23 C.C.No. 31281/2014 .ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Kishore Sureshlal .
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : On demand promissory note.
Ex.P1(a)(b) : Signature of the accused.
Ex.P.2 : Cheque. . Ex.P2(a) : Signature of the accused. Ex.P.3 : Bank memo. Ex.P.4 : Office copy of legal notice. Ex.P.4(a) : Postal receipts. Ex.P.4(b) : Postal acknowledgement. Ex.P.5 & 6 : Ledger Extracts. Ex.P.7 : Ledger Book. Ex.P.8 : Cash Book. Ex.P9(b) : Translation of cash book. Ex.P.9 : IT Return.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:- -
Nil
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
Nil .
( SHIRIN JAVEED ANSARI ) XXV A.C.M.M.,BANGALORE. 24 C.C.No. 31281/2014 . 28.3.2018 For judgment:
ORDER (Judgment pronounced in open court vide separate sheets) Acting u/s.255(2) Cr.P.C accused No.1 and 2 are convicted for the offence punishable under Sec.138 Negotiable Instruments Act and accused No.2 is sentenced to pay fine of Rs.7,60,000/- .(Rs.Seven Lakhs Sixty Thousand Only) In default, he shall under go SI for a period of one year .
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.7,50,000/-.(Rs.Seven Lakhs Fifty Thousand Only) towards compensation amount.
Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.10,000/- (Rupees Ten Thousand Only) is confiscated to the State .
Furnish free copy of judgment and order to convicted-accused.
XXV ACMM, Bangalore.
25 C.C.No. 31281/2014 .