Bangalore District Court
Mas Technologies vs Acruti Design Services on 13 August, 2021
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 13th day of August - 2021
PRESENT: SRI. N.K.SALAMANTAPI, B.A., LL.B.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.2002/2019
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : Mas Technologies,
A Proprietorship concern
Rep. by it Proprietor,
Manohar Hegde,
S/o.Thimmappa,
Aged about 33 years,
Having office at #370,
1st Floor, 10th Main,
1st B Cross, Sampige Layout,
Bengaluru-79.
(Rep. by Sri.Hegde Prakash.R, Adv.)
V/S
Accused : 1. Acruti Design Services,
Stated to be a partnership firm,
Having its office at #164,
Chokkasandra Main, Peenya,
Bengaluru-57.
Rep. by its partner,
Jagadeesh Paranjothi.
2. Jagadeesh Paranjothi,
Partner of Acruti Design Services,
R/o. Mahadeswara Nilaya,
No.533, between 15th & 16th Cross,
Sampige Road, Malleswaram,
Bengaluru-03.
Judgment 2 C.C.No.2002/2019
Also at:
Flat No.201, B Block,
Kasturidhama Apartments,
9th Cross, Malleswaram West,
Bengaluru-03.
(Rep.by Smt.Asha S.Anand, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
FINAL ORDER : Accused Nos.1 and 2 are
Convicted.
DATE OF ORDER : 13.08.2021.
(N.K.SALAMANTAPI)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The complainant has presented the instant complaint against the accused Nos.1 and 2 on 30.11.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheque of Rs.15 lakhs.
2. The brief facts of the complainant case is as follows:
The accused No.2 being the authorized signatory of accused No.1, which is stated to be a duly incorporated partnership firm issued a cheque bearing No.771012 dated Judgment 3 C.C.No.2002/2019 18.07.2018 for sum of Rs.15,00,000/- drawn on Canara Bank, Seshadripuram, Bengaluru, in favour of complainant towards part payment of amount payable to the complainant in respect of the works entrusted with him during the course of business.
The complainant has further contended that on presentation of the said cheque for encashment through his banker viz., State Bank of India, Prashanthnagar Branch, Bengaluru, the same came to be dishonoured, indicating the reason as per endorsement "Funds Insufficient" on 29.09.2018. Thereafter, he got issued a legal notice through his counsel on 22.10.2018 to the accused persons by way of R.P.A.D., calling upon them to remit the entire amount of dishonoured cheque. The legal notice sent to the accused No.2 through R.P.A.D upon his first address has been duly served on 24.10.2018. As per the extract of postal track, the said notice sent through R.P.A.D to accused No.2 has been returned with an endorsement as "Refused" on 23.10.2018. Accordingly, the legal notices have been duly served to both accused. After service of legal notices, no payment is made by the accused. Thus, they committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
Judgment 4 C.C.No.2002/2019
3. After receipt of the private complaint, my predecessor in office took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused Nos.1 and 2 for the alleged offence, got issued process.
4. In response to the summons, the accused No.2 himself as well as on behalf of accused No.1 appeared through his counsel and obtained bail. As required, complaint copy was supplied to the accused No.2. Thereafter, accusation was read over and explained to accused, wherein, they denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examine as PW.1 and got marked Exs.P1 to P16. The PW.1 was subjected for cross-examination by the advocate for the accused. In the cross-examination of PW.1, accused counsel got confronted two documents and same are marked as Exs.D1 and D2.
6. Thereafter, incriminating evidence made against the accused Nos.1 and 2 was recorded under Section 313 of Cr.P.C, wherein the accused No.2 himself as well as on behalf of accused No.1 denied the same. In support of the defence, the accused Judgment 5 C.C.No.2002/2019 No.2 himself as well as on behalf of accused No.1 was examined as DW.1, and got marked documents at Exs.D3 to D7. The DW.1 was subjected for cross-examination by the advocate for the complainant.
7. Both side counsels have addressed their arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points would arise for determination:
1) Whether the complainant proves beyond the reasonable doubt that the accused Nos.1 and 2 got issued Ex.P1-cheque bearing No.771012 to the complainant towards discharge of legal recoverable debt or liability and the said cheque was dishonoured?
2) Whether the complainant proves beyond the reasonable doubt that after dishonour of cheque served notice to the accused Nos.1 and 2 in compliance of Section 138(b) of Negotiable Instruments Act?
3) What Order?
9. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : As per final order, for the following:
Judgment 6 C.C.No.2002/2019
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have been taken together for common discussion in order to avoid repetition of facts.
In order to prove his case, the complainant filed his affidavit in lieu of his chief examination and himself examined as PW.1, wherein, he has reiterated the averments made in the complaint. In support of his contention, he relied upon the documents at Exs.P1 to P16. Among them, cheque bearing No.771012 issued by the accused Nos.1 and 2 for sum of Rs.15,00,000/- dated 18.07.2018, drawn on Canara Bank, Seshadripuram, Bengaluru is marked as Ex.P1. The signature of accused No.2 is marked as Ex.P1(a). Ex.P2 is the Bank Endorsement issued by Canara Bank, the contents of Ex.P1 discloses that the cheque bearing Nos.771012 drawn for Rs.15,00,000/- was dishonoured for the reasons "Funds Insufficient". Ex.P3 is the Legal Notice dated 22.10.2018, the recitals of Ex.P3 discloses that the complainant has issued this notice to the accused Nos.1 and 2 through his counsel. By issuing this notice, complainant called upon the accused Nos.1 and 2 to repay the cheque amount of Rs.15,00,000/- within 15 days from the date of receipt of notice. Exs.P4 to P6 are the Postal receipts. Exs.P7 and P8 are the Judgment 7 C.C.No.2002/2019 unserved R.P.A.D., covers and Exs.P7(a) and P8(a) are the legal notices at Exs.P7 and P8. Ex.P9 is the Track Consignment, it discloses that the item has been delivered on 24.10.2018. Ex.P10 is the copy of GST Registration Certificate dated 20.09.2017 pertaining to the complainant concern. Ex.P11 is the GSTIN details of Proprietor pertaining to the complainant concern. Exs.P12 and P13 are the copies of computer print e-mail messages. Exs.P14 to P16 are the copies of details of balance amount lists. The PW.1 was subjected to the cross-examination by the advocate for the accused.
11. After detailed lengthy cross-examination done by the advocate for accused to the PW.1, the complainant got closed his side. Thereafter, whatever the incriminating evidence made against the accused was read over and explained to him as required under Section 313 of Cr.P.C., wherein, he denied the same and gave his statement that:
ದ , ಸಲದ ಮನಲ ಕಲಸ "ಪರರದಗ ನವ ಉಪ-ಗಗತತಗ ನನಡದಗ ಮಡಲಗ ಭದದತಗಗ ಖಲ ಸಹ ಮಡದ 3 ಚಕಗ ಕ ಗಳನಗ ದ , ನ ನನಡದಗ ಲ ಹಣ, ಆತ ಕಲಸ ಮಡದ 6 - 7 ತತಗಳ ಪರರದಗ ಕಕಡಬನಕದ ಎಲ ಒಳಗ ಸತಪಣರ ಪವತಸದನ. ನಮಮಬಬರ ನಡಗವ ಸತಬತಧ ಚನನಗದದ ಕರಣ, ನನಗ ಚಕಗ ಕ ಗಳನಗ ನ ಮರಳಸಬಹಗದತದಗ ಸಗಮಮ ನದ, ಆದರ ಸಗಳಗ ಳ ಪದಕರಣ ದಖಲಸದರ. ಚಕನ ಮತತ ನನಡಲಗ ಭಧಧನಲಲ."
Judgment 8 C.C.No.2002/2019
12. The above statement stated by the accused was denied by the complainant. In order to prove the above contention, the accused has not produced any agreement or other supportive documents to believe his version that he has entrusted sub-
contract work to the complainant on credit basis and for security of the said work he gave 3 signed blank cheques to the complainant.
13. The further defence of the accused is that he has entrusted to the work worth of Rs.30 lakhs to the complainant concern, in order to security of payment of work entrusted by the accused, he has issued 3 blank signed cheques to the complainant. But he has paid the entire amount to the complainant and he requested the complainant to return the blank cheques, but the complainant stated that the cheques given by the accused have been misplaced, if tracing the same in future he would return the same, no balance amount is remained to pay to the complainant. In support of his defence, he relied upon the documents at Exs.D1 to D7. Among them, Ex.D1 is the copy of purchase order dated 06.06.2016 issued by complainant's concern to the accused No.1. Ex.D2 is the copy of proforma invoice dated 01.05.2018 issued by complainant concern to the accused No.1 company. Exs.D3 and D4 are the copies of computer print e-mail messages. Exs.D5 to D7 are the Statement of accounts pertaining to the accused Judgment 9 C.C.No.2002/2019 issued by Canara Bank and Yes Bank. Exs.D5(a) to D5(e), Ex.D6(a) to 6D(d) and Ex.D7(a) are some portion of entries of Exs.D5 to D7. The DW.1 was subjected to the cross-examination by the advocate for the complainant.
14. Further in order to prove the above said contention, the accused has produced his bank statement of accounts as per Exs.D5 to D7. The Exs.D5 to D7 disclose that from 10.06.2016 to 05.05.2018 through RTGS/NEFT the accused got transferred in all Rs.38,83,000/- to the account of complainant concern. The accused has not stated that the said amount got transferred to the work done by the complainant concern in the year 2016 pertaining to the N.D.Fusion Mall or work done by complainant in the year 2018 pertaining to the Marriott Hotel. In the entire cross- examination of PW.1 it was not suggested to PW.1 that on which transaction the accused has transferred the above mentioned amount to the complainant concern. In this regard, the accused has not produced clinching evidence on record before this court to believe his version.
15. The complainant has denied that the accused has paid the amount regarding transaction of this case. The documents produced by the accused which got marked at Exs.D1 to D7 did Judgment 10 C.C.No.2002/2019 not disclose that the amount which was transferred by the accused to the account of complainant concern belongs to the alleged cheque amount which got marked at Ex.P1. In the absence of sufficient materials in respect of payment of Rs.15,00,000/- which mentioned in the cheque at Ex.P1, it is difficult to believe the version of accused that he has paid the amount of Rs.15,00,000/- to the complainant for part payment of work entrusted by him as stated in the complaint.
16. On carefully perusal of the Exs.P1 to P16, it appears that the accused has issued a cheque bearing No.771012 for discharge of legally enforceable debt and the same has been presented for encashment before the complainant's bank viz., State Bank of India, Prashant Nagar Branch, Bengaluru, but the same was returned unpaid with an endorsement as "Funds Insufficient". Thereafter, the complainant got issued legal notice to the accused by demanding the payment of the said cheque amount in writing within 15 days from the date of receipt of said notice. Thus the complainant has complied the provisions of Section 138 of Negotiable Instruments Act.
Section 139 of Negotiable Instruments Act provides that:
Judgment 11 C.C.No.2002/2019 "It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability".
17. The learned counsel for accused cross-examined the PW.1 in length, but nothing is elicited from the mouth of PW.1 to disbelieve the case of complainant. Therefore, the presumption arises in favour of complainant under Section 139 of Negotiable Instruments Act, that accused Nos.1 and 2 have issued the cheque in favour of complainant for discharge of legally enforceable debt.
18. From the evidence placed on record, it is crystal clear that accused has entrusted work to complainant, the accused No.2 himself and on behalf of accused No.1 has issued the cheque Ex.P1 towards part payment of Rs.15,00,000/- payable to the complainant for discharge of their legal liability during the course of business. Mere taking defence that he has paid the alleged cheque amount to complainant is not sufficient to believe the version of accused without sufficient materials. Absolutely, accused Nos.1 and 2 have not produced convincing evidence on record to believe their version.
Judgment 12 C.C.No.2002/2019
19. In the present case, the accused Nos.1 and 2 have not disputed about the issuance of legal notice. Thus an inference can be drawn that accused was well aware of the contents of notice. Accused have not replied the notice and thereby accused have not utilized the opportunity available for them to disclose about their defence at the earliest. When the accused have not disclosed their defence at the earliest an inference has to be drawn that accused have taken false defence in the defence evidence.
20. Therefore, from the perusal of oral and documentary evidence placed on record it reveals that complainant has made out his case and accused Nos.1 and 2 have failed to rebut the presumptions arisen in favour of complainant. Thus complainant has proved that accused Nos.1 and 2 have committed an offence punishable under Section 138 of Negotiable Instruments Act beyond all reasonable doubt. Hence, in view of the above said reasons, I hold point Nos.1 and 2 in the Affirmative.
21. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Acting under Section 255(2) of Cr.P.C. the accused Nos.1 and 2 are convicted for the Judgment 13 C.C.No.2002/2019 offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.16,00,000/-.
Out of the said fine amount, sum of Rs.15,90,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused No.2 shall under go simple imprisonment for 01 (One) Year.
The bail bond and cash security/surety bond of the accused No.2 stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
(Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this the 13 th day of August - 2021) (N.K.SALAMANTAPI) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Manohar Hegde List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque Judgment 14 C.C.No.2002/2019 Ex.P1(a) : Signature of accused No.2 Ex.P2 : Bank endorsement Ex.P3 : Office copy of legal notice Exs.P4 to P6 : Postal receipts Exs.P7 & P8 : Unserved R.P.A.D., covers Exs.P7(a) & P8(a) : Legal notice at Exs.P7 & P8 Ex.P9 : Track consignment Ex.P10 : Copy of registration certificate Ex.P11 : GSTIN details of proprietor Exs.P12 to P16 : Copies of e-mail messages
List of Witnesses examined on behalf of the defence:
DW.1 : Jagadeesh Paranjothi List of Exhibits marked on behalf of defence:
Ex.D1 : Copy of purchase order
Ex.D2 : Copy of proforma Invoice
Exs.D3 & D4 : Copies of e-mail messages
Exs.D5 to D7 : Statement of accounts
XXIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
Judgment 15 C.C.No.2002/2019
13.08.2021.
Comp -
Accd -
For Judgment
Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Cr.P.C. the accused Nos.1 and 2 are convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay total fine of Rs.16,00,000/-.
Out of the said fine amount, sum of Rs.15,90,000/- shall be payable to the complainant as compensation as per Section 357 of Cr.P.C. Remaining amount of Rs.10,000/- shall be payable to the state as fine amount.
In default of payment of fine amount, the accused No.2 shall under go simple imprisonment for 01 (One) Year.
The bail bond and cash security/surety bond of the accused No.2 stands cancelled.
The office is hereby directed to supply the copy of this Judgment to the accused on free of cost.
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 16 C.C.No.2002/2019 Later, the convictee's counsel filed application Under Section 389(3) of Cr.P.C seeking for suspend the sentence for the reasons stated in the application.
Heard.
In the present case, the
judgment was pronounced and
convicted the accused. In view of the
same, the convictee counsel has
prayed that to suspend the sentence
by appeal period. For the reasons
stated in the application, for the
limited period of prefer appeal only, the application filed by the accused counsel under Section 389(3) of Cr.P.C. is hereby partly allowed and sentence is suspended till appeal period only.
The convictee is hereby directed to execute bond for fine amount of Rs.1,25,000/.
XXIII ACMM, Bengaluru.