Bangalore District Court
M/S. Vishaka Marketing vs M/S. Rajendra Trading Company on 21 February, 2017
IN THE COURT OF XIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
:: PRESENT ::
SMT. C.G. VISHALAKSHI, B.A.L., L.L.B.,
XIII A.C.M.M. Bengaluru.
C.C. NO. 16249/2014
Dated: This the 21st day of February-2017
COMPLAINANT/S: M/s. Vishaka Marketing,
Represented by its Proprietor,
Sri. Narahari,
At No.92, Old Shivaji Theatre,
J.C. Road,
Bangalore-560002.
ACCUSED: M/s. Rajendra Trading Company,
Represented by its Proprietor/
Manager,
Sri. Jeetendra Mutha,
At No.1, Shop No.1 & 2,
Opp: Sri. C.R.N. Complex,
Patnoolpet A.S. Char Street Cross,
Bangalore.
OFFENCE Under Section.138 of Negotiable
Instruments Act.
Plea of the accused Pleaded not guilty
Final order Convicted
*****
JUDGEMENT 2 C.C.16249/2014
JUDGEMENT
This complaint is filed against the accused under Section.200 of Cr.P.C. for the offence punishable under Section.138 and 141 of Negotiable Instruments Act.
2. The gist of the complaint is as follows:
The complainant is stockist of the Hindustan Lever Products having his office as shown in the cause title and he used to sell to all the retailers the Hindustan Lever Ltd., products such as food items, soaps and cosmetics. It is further case of the complainant that the accused is one of his customer and he has purchased the materials on credit from the complainant under invoice dated: 17-02-2014 on credit basis. The total purchase under the said invoice is of Rs.83,395/-, out of the said amount the accused had issued post dated cheque bearing No.812711, dated: 07- 02-2014 for Rs.82,207/- drawn on The Grain Merchants Co-operative Bank Ltd., Gundopanth Street Branch, Bangalore-53, agreeing to pay the balance amount in due course of time and assured about honouring of the said cheque. When the complainant was making arrangement JUDGEMENT 3 C.C.16249/2014 to present the said cheque on given date, then the accused requested the complainant to present the said cheque on 07-03-2014. Hence, the complainant has presented the said cheque through his banker i.e., State Bank of Hyderabad, J.C. Road Branch, Bangalore, but the said cheque was dishonoured for the reason 'Funds Insufficient'. Immediately, the complainant contacted the accused and narrated the fact of dishonour of the cheque and demanded him to pay the cheque amount. But the accused has pleaded that he is excepting certain amount and the same was not received by him in time and hence stated that he would be received the said amount in the 3rd week of April-2014 and as such he requested the complainant to re-present the said cheque during 4th week of April-2014. As per the request of the accused, the complainant has re-presented the cheque on 28-04-2014 through his banker, but again the said cheque was dishonoured for the reason 'Funds Insufficient' vide memo dated: 30-04-2014. Immediately, the complainant once again contacted the accused and narrated the fact of dishonour of the cheque. But the accused has started JUDGEMENT 4 C.C.16249/2014 giving evasive answers and failed to pay the amount covered under the cheque. Hence, having no other go, the complainant got issued legal notice against the accused on 08-05-2014 calling upon the accused to pay the amount covered under the cheque. The notice was duly served on the accused on 12-05-2014. Inspite of the same without complying the demands of notice, the accused has sent untenable reply. The complainant has issued re-joinder to the said notice on 29-05-2014 and it was duly served on the accused on 30-05-2014. Hence having no other go, the complainant maintained this complaint against the accused alleging that the accused has committed an offence punishable under Section.138 of Negotiable Instruments Act and prays to deal the accused as per law.
3. On presentation of the complaint, this court has taken cognizance of the offence, Sworn statement of the complainant was recorded. On perusal of the documents and on hearing the complainant, process was issued against the accused. In pursuance of the process, the accused appeared before this court and enlarged on bail. JUDGEMENT 5 C.C.16249/2014 Copies of the complaint papers supplied to him. Substance of the accusation was readover and explained to the accused. Accused did not pleaded guilty and claims to be tried. Hence, the matter was posted for evidence of the complainant.
4. In order to prove the case of the complainant, the complainant got examined himself as PW.1 and got marked documents as Ex.P1 to P12 and closed his side evidence. After completion of the complainant's evidence, the accused was examined under Section.313 of Cr.P.C. and his statement was recorded. The accused denied all the incriminating evidence appeared against him and he has chosen to lead his defence evidence. To substantiate his defence and to falsify the claim of the complainant the accused examined himself as DW.1 and got marked documents at Ex.D1 to D7 on his behalf.
5. Heard arguments. To strengthen the case of the accused, the counsel for the accused has relied upon the following citations:
JUDGEMENT 6 C.C.16249/2014
AIR-2006 (NOC) 1168 (KANT.) = 2006(4) AIR KAR R 242 M/s. Shreyas Agro Services Pvt. Ltd., V/s.
Chandrakumar. S.B. ** AIR-2007 (NOC) 951 (KAR.) = 2007(2) AIR KAR R 326 Vishnudas G. Bhutada V/s. Vijaya Mahantesh ** ILR-2014 KAR - 6572 Sri. H. Manjunath V/s. Sri. A.M. Basavaraju ** AIR-2006 Supreme Court 3366 M.S. Narayana Menon @ Mani V/s. State of Kerala @ Anr.
** 2008 AIR SCW 738 Krishna Janardhan Bhat V/s. Dattatraya G. Hegde ** AIR - 2007 (DOC) 269 (DEL) = 2 (2007) BC 69 Exports India & Anr V/s. State & Anr.
** 2012(1) DCR 385 Santhi V/s. Mary Sherly ** 2008 (1) DCR 65 Er. S. Karuppusamy V/s. C. Sugumar ** 2008 (1) DCR 284 Vishnudas V/s. Vijaya Mahantesh ** 2009 (1) DCR 622 Sayeeda Iqbal Vakil V/s. Javed Abdul Latif Shaikh ** 2012 (2) DCR 504 Smt. Shobha V/s. Gajanan S/o Wasudeorao Joshi ** JUDGEMENT 7 C.C.16249/2014 2009 (2) DCR 759 Shree Daneshwari Traders V/s. Sanjay Jain & Anr.
** 2014 (1) DCR 27 M/s. Total Finaelf India Ltd., V/s. Rashmi Parnami ** 2011 (2) DCR 159 Jogindra R. Anand, Partner of Anand Trading Company V/s. Ganaram B. Rathod.
** 2012 (2) DCR 724 Niraj V/s. Ramesh Pratap Singh @ Raju Singh ** 2012 (1) DCR 737 Prahalad Rai Agrawal V/s. The State of Jharkhand & Anr.
**
6. Upon reading the entire materials on record and on hearing the arguments, the following points that arise for my consideration:
PIONTS
1. Whether the complainant proves beyond all shadow of doubt that, the accused has committed an offence punishable under Section.138 Negotiable Instruments Act?
2. What order?
7. My answers to the above points are as follows: JUDGEMENT 8 C.C.16249/2014
Point No.1: In the Affirmative
Point No.2: As per the final order, for the
following.
:: REASONS ::
8. POINT NO.1: As the accused did not pleaded
guilty, the complainant has chosen to examine himself as PW.1 and got marked documents as Ex.P1 to P12.
As per the decision reported in ILR 2008 KAR PAGE- 4629 between Shivamurthy V/s Amruthraj and in another decision rendered by the Hon'ble Apex court in AIR-2008 SC-1325 between Krishna Janardharn Bhat V/s Dattareya G. Hegde, in order to attract Sec.138 of N.I Act, the complainant has to satisfy 3 essential ingredients like, 1) there is legally enforceable debt, 2) that the cheque was drawn from the account of the Bank of the accused for discharge of whole or part of any debt or other liability which pre-supposes to be legally enforceable debt, 3) cheque so issued returned unpaid due to Insufficient of funds.
JUDGEMENT 9 C.C.16249/2014
9. Keeping in view the ingredients of Section.138 of Negotiable Instruments Act, I proceed to discuss the documents of this case.
(a) Ex.P1 is the Tax Invoice. Ex.P2 is the cheque bearing No.812711, dated: 07-03-2014 for Rs.82,207/-, drawn on The Grain Merchants Co-operative Bank Ltd., Gundopanth Street Branch, Bangalore-53. As per the say of the complainant Ex.P2(a) is the signature of the accused.
Ex.P12 is the complaint it buttresses the stand taken by the complainant.
(b) Ex.P3 & P4 are the Bank Endorsements issued by the Bank authorities, dated: 30-04-2014 and on 08-03-2014 for having dishonour of the cheque for the 'Funds insufficient'. On perusal of the original complaint i.e., Ex.P12 it is clear that it buttress the stand taken by the complainant herein.
(c) It must be noted as per Clause (b) proviso to Section.138 of Negotiable Instruments Act, the complainant was required to make a demand for payment JUDGEMENT 10 C.C.16249/2014 of the said amount within 30 days from the date of receipt of cheque as un-paid.
(d) Ex.P5 & P9 are copy of legal notices dated: 08-05- 2014 and 29-05-2014, which shows that the complainant made demand in writing calling upon the accused to make repayment of the said cheques amount by issuing notice against him which is within 30 days.
(e) Ex.P6 & P10 are the postal receipts and Ex.P7 & P11 are the postal acknowledgement cards, which shows that notice was sent against the accused under RPAD.
As per Clause (C) proviso to Section.138 of Negotiable Instruments Act, the accused is entitle 15 days time to make payment of money covered under cheque. Further, as per Sec.142 (b) of Negotiable Instruments Act, complaint has to be filed within 30 days from the date of which the cause of action aroses. Therefore, the complainant has filed this complaint well within time.
10. Thus, the complainant has fulfilled all the ingredients, which were required for the completion of the JUDGEMENT 11 C.C.16249/2014 offence punishable under Section.138 of Negotiable Instruments Act.
11. On reading the entire materials on record, it shows that, there is no dispute so as to the business transaction in between the complainant and accused and so also there is no dispute so as to the fact that Ex.P2 cheque is belongs to the bank account of the accused and Ex.P2(a) is his signature, as it is the defence of the accused that the complainant used to collect signed blank cheques from its customers as security at the time of placing orders. Accordingly, this disputed cheque was also collected by the complainant as security in connection to the said business transaction. The complainant did not supplied any materials to him as per Ex.P1 invoice on 17-02-2014 and he has not received any goods. Despite of the same, the complainant by making use of the signed blank cheque allegedly obtained by him as security purpose has filed this false complaint against him, though there exists no debt or liability.
JUDGEMENT 12 C.C.16249/2014
12. Thus, there is no dispute so as to the fact that Ex.P2 cheque is belongs to the bank account of the accused and Ex.P2(a) is his signature.
13. It is well settled that, admission furnishes best evidence as per the decision laid down in AIR-1981 PAGE- 2085.
Thus in my opinion, the admission given by the accused is sufficient to come to conclusion about the execution of Negotiable Instruments (Cheque in question) is admitted as well as proved.
14. In view of the decision reported in 2010 SC 1898 between Rangappa V/s Mohan, once the execution of Negotiable Instruments Act is either proved or admitted, then the court shall draw a presumption under Section.139 of Negotiable Instruments Act, in favour of the complainant to that effect that the said Negotiable Instrument i.e., the disputed cheque has been drawn for valid consideration and it is towards legally recoverable debt and it is drawn for valuable consideration. Thus, it is JUDGEMENT 13 C.C.16249/2014 the burden of the accused to rebut the presumption, which arose infavour of the complainant with necessary probable defence.
15. To prove his defence, the counsel for the accused cross-examined PW.1 and suggested the defence of obtaining signed blank cheque by the complainant as security from its customers at the time of supply of materials and about the misuse of the same without supplying the materials to the accused as per Ex.P1 invoice No. FAM13810 etc., but except bare suggestion and denial nothing has been elicited from the mouth of PW.1. On the other hand, much attempt made by the accused to elicit some evidence from the mouth of PW.1 that the complainant had not supplied the materials to the accused as stated under Ex.P1 invoice, as there is no seal and signature of the person to delivered the materials in Ex.P1 Invoice. But PW.1 clearly stated about the fact that there is signature of their salesmen for having supply the materials to the accused under Ex.P1 Invoice. Then except bare JUDGEMENT 14 C.C.16249/2014 suggestion and denial nothing has been elicited from the mouth of PW.1 in proving his defence.
16. Further at one stretch, the accused made an attempt to say that the Ex.P1 invoice is created one by contending that there is discrepancy with respect to the amount mentioned in Ex.P1 invoice and amount mentioned in Ex.P2 cheque by suggesting that as per Ex.P1 there is mentioning of amount towards purchase of the products worth of Rs.83,394/-, but the Ex.P2 cheque is for Rs.82,207/- only etc., but for this PW.1 clearly deposed his evidence inconsonance with his pleadings i.e., complaint stating that though the accused had purchased the materials worth of Rs.83,394.99 i.e., Rs.83,395/-, but he has given this cheque for Rs.82,207/- agreeing to repay the balance amount in due course of time. This evidence correspondence the Ex.P12 complaint of the complainant. Even otherwise mere the fact that Ex.P2 cheque is only for Rs.82,207/- against the amount of Rs.83,394.99 as per Ex.P1 invoice etc., it cannot be said that the entire the case of the complainant is false and doubtful. On the other JUDGEMENT 15 C.C.16249/2014 hand, the explanation offered by the complainant is proper and acceptable one as the accused being his regular customer since two years and might have accepted Ex.P2 cheque for Rs.82,207/- agreeing to receive the balance amount during the course of time. Hence, the defence taken by the accused in that regard is not convincing one.
17. Further at one stretch, it is the defence of the accused that the complainant had collected his signed blank cheque as security at the time of placing orders and contended that the complainant has not supplied the materials to the accused as agreed under Ex.P1 Invoice etc., and contended that the complainant not produced any document like books of account to prove the fact of supply of the products mentioned under Ex.P1 Invoice etc. But PW.1 has answered that Ex.P1 Invoice only the document maintained by them for supply of materials. The accused through made an attempt to say that Ex.P1 invoice is created document etc., but the accused has not proved the said defence of concoction and creation of the said document. Mere the fact that accused not produced books JUDGEMENT 16 C.C.16249/2014 of account, it cannot be a ground to suspect that there was supply of materials when there is clear evidence by the accused that they were issuing cheques towards payment of goods only after supply of the materials through their salesmen as the accused deposed in kannada as follows:
"¸Éïïì ªÉÄ£ï ªÀiÁ®ÄUÀ¼À£ÀÄß £ÀªÀÄUÉ PÉÆlÖ £ÀAvÀgÀ D ªÀiÁ°£À ¨Á§ÄÛ ºÀtªÀ£ÀÄß ZÉPï ªÀÄÄSÉãÀ PÉÆqÀÄwÛzÉÝêÉAzÀÄ, ¨ÀszÀævÉUÁV K£ÀÆ C®è."
When such being the case mere non-production of books of account cannot be a ground to suspect the entire case of the complainant and about the genuinity of Ex.P1 Invoice. Hence, the defence taken by the accused in that regard holds no water.
18. Further, if really the defence of the accused was true that the complainant had obtained their signed blank cheque as security assuring about supply of materials and thereafter the complainant not supplied any goods as stated under Ex.P1 Invoice etc., then what was the impediment for the accused to bring the said fact of non- supply of materials under Ex.P1 invoice to the knowledge JUDGEMENT 17 C.C.16249/2014 of the complainant insisting him to return his signed blank cheque and why he did not taken any action against the complainant for non-supply of materials or for non-return of his signed blank cheque allegedly given as security and what made him to remain silent without taking any legal action against the complainant. If really the defence of the accused was true, then certainly the accused would have written letter to the complainant and requested him to return his signed blank cheque by appraising the fact of non-supply of materials under Ex.P1 invoice. If the complainant not considered his request and not returned his signed blank cheque etc., then the accused would have caused legal notice against the complainant narrating the circumstance in which he had given the disputed cheque and would have demanded him to return his signed blank cheque allegedly obtained as security by narrating the fact of non-supply of the materials. In case, if the accused not complied with demands of notice, then what was the impediment for the accused to lodge police complaint against the complainant or to give necessary stop payment instruction to the Bank authorities by requesting them not JUDGEMENT 18 C.C.16249/2014 to honour the said cheque in case of its presentation by narrating the circumstance in which he had given this disputed cheque to the complainant as security. But no such overtact is forth coming on the conduct of the accused.
19. Unless the accused has proved that he has acted as normal prudent man he could not rebut the presumption which arose in favour of the complainant under Section.139 of Negotiable Instruments Act. Because no prudent man will remain silent without collecting his cheques allegedly given as security in connection to the transaction of supply of materials even after the fact that there was no supply of materials. Hence, the defence taken by the accused is not probable one in explaining the circumstance in which the disputed cheque went to the possession of the complainant.
20. Further, there is contradiction and inconsistency in the defence of the accused, because at one stretch, the accused taken the defence that the complainant was collecting signed blank cheque as security by its customers JUDGEMENT 19 C.C.16249/2014 at the time of placing orders by its customers and accordingly the complainant had collected the signed blank cheque from the accused also undertaking to supply the materials, but thereafter the complainant failed to supply the materials and hence contended that inspite of the same the complainant has misused his signed blank cheques etc. But on careful reading of the evidence of the accused, it shows that the evidence deposed by the accused during cross-examination went to the root of the defence. Because, the accused during his cross-examination clearly stated that the complainant never collected any cheques as security prior to supply of materials and on the other hand the complainant used to obtain the cheque only after supply of the materials. This evidence contradicts and falsified the defence taken by the accused in explaining the circumstance in which Ex.P2 cheque went to the hands of the complainant.
21. Apart from this on careful reading of further evidence of the accused, it shows that he has stated about issuance of the cheque infavour of the complainant towards JUDGEMENT 20 C.C.16249/2014 payment of the cost of the products supplied to him only after due supply of the materials. This clearly goes to show that Ex.P2 cheque was also issued by the accused infavour of the complainant only after due supply of the materials towards the payment of the amount of the cost of products supplied to the accused under Ex.P1 Invoice. This evidence probablised the case of the complainant that Ex.P2 cheque was given by the accused in their favour towards discharge of the liability i.e., amount payable infavour of the complainant with respect to the value of the materials supplied to them under Ex.P1 invoice. Otherwise, there was no occasion for the complainant to have such possession of the disputed cheque, which belongs to the accused.
22. No doubt the accused denies the fact of supply of the materials under Ex.P1 invoice. But, if really the materials not supplied to the accused, then it is for the accused to explain before this court why and for what purpose, he has given this disputed cheque that too signed cheque infavour of the complainant if no such materials were supplied to JUDGEMENT 21 C.C.16249/2014 them. Because, as per the evidence of the accused, they were issuing cheques only after due supply of the products towards payment of the cost of the said products. When such being the case, it is for the accused to explain why he had given this disputed cheque infavour of the complainant. But no such explanation offered by the accused. On the other hand, during the course of evidence of accused the accused himself has clearly deposed that they were not giving any signed blank cheque as security to the complainant for supply of the materials and on the other hand, they used to issue cheques to the value of the materials, which were supplied to them only after due supply. This clearly goes to show that Ex.P2 cheque was given by the accused infavour of the complainant towards discharge of the materials towards discharge of the amount payable to the complainant in connection to the materials supplied to them under Ex.P1 Invoice and inspite of the same, just to over come the situation, the accused has taken such false defence.
JUDGEMENT 22 C.C.16249/2014
23. Further with due respect I beg to submit that the decisions referred by the accused i.e., the decision reported in AIR-2006 (NOC) 1168 (KANT.) 2006(4) AIR KAR R 242, AIR-2007 (NOC) 951 (KAR.) 2007(2) AIR KAR R 326, ILR- 2014 KAR - 6572 AIR-2006 Supreme Court 3366, 2008 AIR SCW 738 AIR-2007 (DOC) 269 (DEL) = 2 (2007) BC 69 2012(1) DCR 385, 2008 (1) DCR 65, 2008 (1) DCR 284, 2009 (1) DCR 622, 2012 (2) DCR 504, 2009 (2) DCR 759, 2014 (1) DCR 27, 2011 (2) DCR 159, 2012 (2) DCR 724, 2012 (1) DCR 737, are not applicable to the fact and circumstance of the case on hand.
24. Hence, with all these reasons, this court is of the opinion that though accused made an attempt to falsify the case of the complainant by taking defence of non-supply of the materials under Ex.P1 Invoice and about taking defence of obtaining the disputed cheque as security purpose and its misuse etc., but he failed to prove the said defence with probable evidence. On the other hand, the complainant has proved the fact that he has supplied the materials to the accused as per Ex.P1 Invoice and towards JUDGEMENT 23 C.C.16249/2014 discharge of the said payment only, the accused had given this disputed cheque i.e., Ex.P2 cheque, agreeing to pay the balance amount in due course of time and the said cheque on its presentation was bounced back unpaid for the reason 'Funds Insufficient' and despite of service of demand notice, the accused not come forward to settle the cheque amount. Hence, the complainant has maintained this complaint in time. Hence, the complainant has proved all the essential ingredients of Section.138 of Negotiable Instruments Act to bring home the guilt of the accused. Hence, I answered Point No.1 in the Affirmative.
25. POINT NO.2: In view of my discussions on Point No.1 as above, I proceed to pass the following:
ORDER Acting under Section. 255(2) Cr.P.C., the accused is convicted for the offence punishable under Section.138 of Negotiable Instruments Act.JUDGEMENT 24 C.C.16249/2014
The accused shall pay a fine of Rs.1,40,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Six Months.
Out of the said amount, accused shall be paid Rs.1,35,000/- to the complainant as compensation, as provided under Section.357 of Cr.P.C. and Rs.5,000/- shall be remitted to the state as fine. (Dictated to the stenographer, transcribed by him, corrected and then pronounced in open court by me on this the 21st day of February-2017) (C.G. Vishalakshi) XIII A.C.M.M., Bengaluru.
ANNEXURE Witnesses examined on behalf of the complainant:
PW.1 : Narahari. S. Documents marked on behalf of the complainant:
Ex.P1 : Invoice
Ex.P2 : Cheque
Ex.P3&4 : Endorsements
Ex.P5 : Legal Notice
Ex.P6 : Postal Receipt
Ex.P7 : Postal acknowledgment
JUDGEMENT 25 C.C.16249/2014
Ex.P8 : Reply Notice
Ex.P9 : Re-joinder
Ex.P10 : Postal receipt
Ex.P11 : Postal acknowledgement
Ex.P12 : Complaint
Witnesses examined on behalf of the accused:
DW.1 : Jeetendra Mutha Documents marked on behalf of the accused:
Ex.D1to7 : Receipts
(C.G. Vishalakshi)
XIII A.C.M.M., Bengaluru.