Bangalore District Court
M/S.Zodiac Clothing Company Ltd vs M/S.Pragati Garments on 11 July, 2018
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this the 11th day of July , 2018.
Present: Smt Shirin Javeed Ansari -BA.LL.B(Hon's)LL.M
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No.28281/2016
Complainant: M/s.Zodiac Clothing Company ltd
A company incorporated under the
provisions of
The Companies Act, having its
registered office at Nyloc House
254, D-2, Dr.Annie Besant Road
Worli , Mumbai 400 30.
Branch office at
No.218, Antonite Building
1 floor, HRBR layout
Kalyana nagar, 3rd block
Kammanahalli
Bengaluru 43.
Representatives. by its General
power of Attorney Holder,
Shri N.Manjunath
aged 39 years
S/o.Nanjundappa
R/at.Bengaluru.
(By Sri OC -Advocate )
- Vs -
Accused: 1. M/s.Pragati Garments
City Tower , G.T.Road
Burdwan.
2 C.C.No. 28281/2016
2.Mr.A.Rahaman
M/s.Pragati Garments
City Tower , G.T.Road
Burdwan.
(BY Sri S.R.J- Advocate )
Offence complained of: U/s.138 of Negotiable Instrument Act
Plea of accused: Pleads not guilty.
Final Order: Accused No.1 and 2 are convicted.
Date of order: 11.7.2018
JUDGMENT UNDER SEC.355 OF CR.PC
This is a complaint filed by the complainant
u/s.200Cr.P.C.against the accused person for the
offence punishable u/s.138 Negotiable Instrument Act
(Herein after called as the N.I.Act for reference)
2. The brief facts of the case of the complainant
are as under:
The complainant is a company registered under
the Companies Act having its registered office at Nyloc
house , Door No.254 D-2 Dr.Annie Besant road, Worli
Mumbai and its branch office at Bangalore. The
complainant is represented by its General Power of
3 C.C.No. 28281/2016
Attorney holder N.Manjunath. The company is
carrying business of manufacturing and selling
readymade garments. The company distributes the
same from its central distribution center, Bangalore.
The accused having his business under the name and
style M/s.Pragati garments purchased readymade
garments and other materials on credit basis from
the complainant company. The credit transaction
between the complainant company and the accused
are in the nature of running account and towards
aforesaid credit transaction and towards the liability
/debt, the accused owes to the complainant company,
the accused issued the cheque bearing No.443479
DT.04.10.2016 for Rs.1,28,998/- drawn on Punjab
National Bank, GT Road, Burdwan, (WB), in favour of
the complainant company.
3. It is further submitted that the said cheque
was presented for encashment through banker of the
complainant i.e HDFC, bank, Richmond Road,
Bangalore. But to the utter shock and surprise of the
complainant the above cheque returned dishonored
4 C.C.No. 28281/2016
for the reason "Funds Insufficient" vide memo
dt.5.10.2016. The same was received by the
complainant company on 14.10.2016 . The
complainant further submits that they issued a notice
to the accused on 1.11.2016 through RPAD and the
same was received by the accused on 7.11.2016. The
accused inspite of receipt of the notice has neither
come forward to make payment nor replied to the
notice. The complainant company filed the present
complaint submitting that the accused has issued the
said cheque deliberately without there being sufficient
funds and knowing the consequence with pre-
intention not to pay and cheated the complainant.
Therefore, the accused has committed an offence
punishable u/s. 138 Negotiable Instrument Act. Hence
this complaint.
4. The complainant has lead his pre summoning
evidence and has filed his affidavit in lieu of Sworn
Statement. Prima-facie a case has been made out
against the accused and he has been summoned vide
order of this court.
5 C.C.No. 28281/2016
5. The accused appeared before this court on
22.2.2017 and he has been enlarged on bail . The
substance of accusation has been read over to him to
which, he pleads not guilty and claims to be tried.
6. In his post summoning evidence the
complainant has examined himself as PW 1 and filed
his affidavit, wherein, he has reiterated the averments
made in the complaint and got marked the documents
at Ex.P.1 to Ex.P6.
7. IN view of the continuous absence of the
accused person before this court, the recording of the
statement of the accused u/s.313 Cr.P.C is hereby
dispensed with. The accused has not lead his defence
evidence also.
8. Heard the Advocate for the complainant.
Counsel for the accused did not even submit their
arguments .
9. Upon hearing arguments, the following points
arise for my consideration:
1. Whether the complainant
proves that the accused has
committed an offence
6 C.C.No. 28281/2016
punishable u/s. 138 Negotiable
Instrument Act ?
10. What order.
11. My answers to the above points are as
under:
Point No.1 : In the Affirmative.
Point No2 : As per final order for the
Following,
REASONS
12.Point NO.1: The complainant is a company
registered under the Companies Act having its
registered office at Nyloc house , Door No.254 D-2
Dr.Annie Besant road, Worli Mumbai and its branch
office at Bangalore. The complainant is represented
by its General Power of Attorney holder N.Manjunath.
The company is carrying business of manufacturing
and selling readymade garments. The company
distributes the same from its central distribution
center, Bangalore. The accused having his business
under the name and style M/s.Pragati garments
purchased readymade garments and other materials
7 C.C.No. 28281/2016
on credit basis from the complainant company. The
credit transaction between the complainant company
and the accused are in the nature of running account
and towards aforesaid credit transaction and towards
the liability /debt, the accused owes to the
complainant company, the accused issued the cheque
bearing No.443479 DT.04.10.2016 for Rs.1,28,998/-
drawn on Punjab National Bank, GT Road, Burdwan,
(WB), in favour of the complainant company.
13. It is further submitted that the said cheque
was presented for encashment through banker of the
complainant i.e HDFC, bank, Richmond Road,
Bangalore. But to the utter shock and surprise of the
complainant the above cheque returned dishonored
for the reason "Funds Insufficient" vide memo
dt.5.10.2016. The same was received by the
complainant company on 14.10.2016 . The
complainant further submits that they issued a notice
to the accused on 1.11.2016 through RPAD and the
same was received by the accused on 7.11.2016. The
accused inspite of receipt of the notice has neither
8 C.C.No. 28281/2016
come forward to make payment nor replied to the
notice. The complainant company filed the present
complaint submitting that the accused has issued the
said cheque deliberately without there being sufficient
funds and knowing the consequence with pre-
intention not to pay and cheated the complainant.
Therefore, the accused has committed an offence
punishable u/s. 138 Negotiable Instrument Act
14. In support of the case, the complainant has
produced the documents marked at Ex.P.1 to Ex.P.6.
Ex.P.1 is Certified copy of the power of attorney.
Ex.P.2 is the cheque dt.4.10.2016 bearing NO.443479
drawn on Punjab National Bank for Rs.1,28,998/- .
Ex.P.3 is the cheque return memo. Ex.P4 is the
demand notice. Ex.P.5 is the postal receipt. Ex.P.6 is
the postal track consignment.
15. Inspite of sufficient opportunities and
hearing dates, the accused did not appear before the
court and did not even cross examine PW 1 . As such
the oral and documentary evidence put forth by the
complainant remained unchallenged.
9 C.C.No. 28281/2016
16. On careful perusal of the complaint as well
as examination in chief averments the balance of the
accused pertaining to the period 13.10.2016 is
Rs.1,28,998/- . Further, though the accused
appeared before the court in pursuance of the
summons, but, has failed to cross examine PW 1.
Absolutely there is no defence or reasons put forth by
the accused in this regard. If at all the accused had
not issued the cheque in question towards discharge
of liability as mentioned above, the accused would
have definitely appeared and cross examined PW 1.
But, the accused has absolutely not taken any such
trouble. This aspect of the matter clearly supports
the case of the complainant. The accused has not
challenged the present document issued by him.
17. The contents of the complaint and the
examination-in-chief affidavit clearly establish the
ingredients of Sec.138 Negotiable Instrument Act. The
complainant in order to prove his case relied on the
oral evidence. Beside, the evidence is supported by
the documents produced by him. There is no
10 C.C.No. 28281/2016
ambiguity in the oral and documentary evidence
brought on record. On careful examination of all the
documents of the complainant, it is clear that the
complaint is filed well within time. The bank
endorsement, bearing the shara "Funds Insufficient"
attracts Sec.138 Negotiable Instrument Act.
18. The next point for consideration is whether
the presumption could be drawn in favour of the
complainant. Section 139 of the Act provides that
unless contrary is proved, it shall be presumed that
the holder of the cheque received the same for
discharge of any debt or liability. The word "shall"
indicate that it is mandatory on the part of the
court to draw the presumption in favour of the holder
of the cheque in due course unless rebutted. At the
cost of repetition it is worth to note that the accused
has not taken any steps to rebut the said
presumption.
19. That apart, Sec.118 of Negotiable Instrument
Act lays down special rules of evidence applicable to
Negotiable Instruments. The presumption is one of
11 C.C.No. 28281/2016
Law and there under a court shall presume that the
instrument was endorsed for consideration.
20. According to the complainant they have
provided the ready made garments to the accused
person and accused person towards discharge of
said liability issued the cheque in question. The
complainant has also produced the cheque marked at
Ex.P.2. The complainant has further produced the
bank endorsement marked at Ex.P.3 which clearly go
to reveal that the cheque was dishonored for the
reason "Funds Insufficient". The complainant has
also produced the copy of legal notice marked at
Ex.P.4 and the postal receipt at Ex.P.5 . The returned
postal track consignment is marked is marked at
Ex.P.6 .As the evidence of the complainant remained
unchallenged, the documents produced by the
complainant also remained unchallenged.
21. In this case plea of the accused is recorded
as per Sec..251 Cr.P.C, wherein the accused pleaded
not guilty. As per Sec.251 of Cr.P.C. the accused has
to state about his defence. Here, except pleading not
12 C.C.No. 28281/2016
guilty, and stating that he has got defence evidence
to be lead, but, neither the accused nor his counsel
have come forward to lead any defence evidence. As
per the decision reported in AIR 2014 SC 2528
Indian Bank Association v/s. Union of India)
Crl.P.NO.8943/2010 M/s.Transgare Pvt.Ltd,
v/s.Dr.R.Parvathreddy and in Rajesh Agarwals
Case, wherein it is held that the accused cannot
simply say "I am innocent or I plead not guilty".
The presumption of law laid down in the afore said
decision is squarely applicable to the facts and
circumstances of this case. As such it cannot be taken
that the accused has rebutted the presumption of law
by mere pleading not guilty.
22. In this context , it is necessary to refer the
decision of the larger bench of the Hon'ble Apex Court
held in Rangappa v/s. Mohan reported in
AIR 2010 SC 1889 that :
"in the light of these extract, we are
in agreement, with the respondent -
claimant that presumption mandated
by Sec.139 of the Act does not indeed
13 C.C.No. 28281/2016
include the existence of legally
enforceable debt or liability "
23. From the discussion made supra it is clear
that the accused has neither taken probable defence
nor taken steps to prove the same. The contention of
the repayment of the amount covered under the
cheque is also not proved through cogent and
acceptable evidence. To put it other way, the accused
has not rebutted the presumption of Law available in
favour of the complainant as envisaged under
sec.139 and 118 of Negotiable Instrument Act.
Accordingly, the case of the complainant is believable
one. Despite of giving sufficient opportunity the
accused has not bothered to lead defence evidence.
The accused has not rebutted the case of the
complainant. Hence, this Point No.1 is answered in the
Affirmative.
24. 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 :
14 C.C.No. 28281/2016
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 sentenced to pay fine of Rs.1,53,998/-(One Lakh Fifty Three Thousand Nine Hundred & Ninety Eight only) In default, shall under go SI for a period of 6 months.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.1,48,998/-(One Lakh Forty Eight Thousand Nine Hundred & Ninety Eight only) towards compensation amount.
Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.5,000/- (Rupees Five 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 11th day of July , 2018).
(SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.
15 C.C.No. 28281/2016ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : N.Manjunath
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : CC of the P.A Ex.P.2 : Cheque . Ex.P.2(a) : Signature of the accused . Ex.P.3 : Cheque return memo. Ex.P.4 : office copy of the legal notice. Ex.P.5 : Postal receipt. Ex.P.6 : Track consignment
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.16 C.C.No. 28281/2016
11.7.2018.
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 sentenced to pay fine of Rs.1,53,998/-(One Lakh Fifty Three Thousand Nine Hundred & Ninety Eight only) In default, shall under go SI for a period of 6 months.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.1,48,998/-(One Lakh Forty Eight Thousand Nine Hundred & Ninety Eight only) towards compensation amount.
Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.5,000/- (Rupees Five Thousand Only) is confiscated to the State .
Furnish free copy of judgment and order to convicted-accused.
XXV A.C.M.M.,B'lore.
17 C.C.No. 28281/2016 18 C.C.No. 28281/2016 19 C.C.No. 28281/2016