Bangalore District Court
Factory And Had Placed An Order For ... vs To Pay The Cheque Amount Within 15 Days ... on 6 March, 2020
1 CC.No.10011/2019
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITON MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:- Sri. ABDUL RAHIM HUSSAIN SHAIKH
B.Sc, B.Ed, LLB(Spl)
XXVIII A.C.M.M
Bengaluru City.
Dated this the 06th day of March, 2020
CC.No.10011/2019
JUDGMENT
1. Sl.No. of the case : C.C.No.10011/2019
2. The date of commence of evidence: 30.03.2019
3. The date of Institution : 29.12.2018
4. Name of the Complainant : Mr. K.K Colour, Accurates Limited R/at No.86/D, "Anuradha Industrial Estate, Y.V Annaiah road, Yelachennahalli, Kanakapura Road, Bangalore-560 078.
Rep by its Managing Director Mr. Idris Khan.
5. Name of the Accused : Mr. ESS Multi food Pvt Ltd 2 CC.No.10011/2019 R/at No.11/1, Yelachenna Halli, K.P Road, Bangalore Rep by its Managing Director Mrs. Rahamath Unnisa.
6. The offence complained of or proved : U/s.138 of N.I. Act
7. Plea of the accused on his examination : Pleaded not guilty
8. Final Order : Accused is convicted
9. Date of such order : 06.03.2020 JUDGMENT
1. This case has been registered against the accused on the basis of the complaint filed by the complainant u/s 200 of Cr.P.C for the offence punishable u/s 138 r/w 142 of N.I. Act.
2. The gist of the complainant's case is that :
The complainant submits that the accused approached the complainant to print Plastic covers from complainant factory and had placed an order for printed covers 480gram milk bread covers. In this context on 3 CC.No.10011/2019 29th September 2018 invoice cum delivery challan with materials were dispatched and the same was acknowledged by accused. Complainant delivered goods worth of Rs.1,74,263/- inclusive of GST to accused. On receipt of the order accused have issued post dated cheque bearing No.803307 dated:15.10.2018 for Rs.1,74,263/- drawn on Syndicate Bank ATPAR branch, Bangalore in favour of the complainant which on presentation with their banker State Bank of India, JP Nagar, VI Phase branch, Bangalore for clearance, the same was dishonoured for the reasons 'Payment stopped by drawer' as per the banker memo dated 17.11.2018. Accordingly on 24.11.2018 complainant got issued a legal notice to the accused by RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice and the notice was served to the accused on 30.11.2018 and inspite of the service of the said notice accused failed to pay the cheque 4 CC.No.10011/2019 amount nor replied. Accordingly, the complainant filed the complaint against the accused for having committed an offence punishable u/s 138 of N.I. Act on 29.12.2018.
3. In pursuance of the summons, the accused has appeared through Counsel and got enlarged on bail by executing necessary documents. The copy of the complaint was furnished to the accused, as required under law. As there was sufficient material, plea was recorded against the accused on 21.01.2020 and explained to the accused in his vernacular, for which the accused pleaded not guilty and claims to be tried.
4. In order to prove the case, the Managing Director of the complainant company Sri. Idris Khan S/o sri. Junus Khan., examined as PW1 and got marked Ex.P1 to P7 and closed the side. Accused neither examined nor got marked any documents on his behalf.
5. When the matter posted for cross of PW1, accused 5 CC.No.10011/2019 and complainant jointly submitted memo stating that accused has agreed pay total sum of Rs.3,50,000/- as full and final settlement towards this case and other connected two cases i.e., CCNo.10012/2019 and CCNo.10013/2019 and towards the payment of the said amount in this case accused agreed to pay Rs.1,50,000/- by way of DD/RTG's on 24.04.2020.
Further it is agreed between the parties that in case the accused fails to pay any of the above installment then this court may be issue NBW and FLW to the accused as provided under law.
Further accused agreed that if the accused fails to comply the terms of this compromise apart from passing the appropriate order by this court in this case stated supra, the complainant also reserves the liberty to file civil suit for recovery of the above mentioned amount with interest as per law against the accused.
6. Both the accused and the complainant along with 6 CC.No.10011/2019 their counsels prayed to pass the judgment to that effect on the joint memo. In the instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
7. Heard the arguments and perused the material placed on record.
8. On the basis of the above facts, the following points arise for my consideration:
1. Whether the complainant proves that the accused towards discharge of legal recoverable debt issued cheque bearing No.803307, dt:15.10.2018 for Rs.1,74,263/- drawn on Syndicate Bank, Doddakallsandra branch, Bengaluru, in favour of the complainant, on presentation for encashment it was returned as 'Payment stopped by drawer' and inspite of receipt of legal notice, the accused failed to pay the cheque amount 7 CC.No.10011/2019 within the statutory period and thereby the accused has committed an offence punishable u/s 138 of N.I. Act?
2. What order?
9. My findings on the above points are as under :
Point No.1: In the Affirmative Point No.2: As per final order, for the following:
REASONS
10. Point No.1:- In order to prove the case, Mr. Indris Khan, Managing Director of the complainant Company examined as PW1 filed affidavit in lieu of examination-in- chief and has reiterated the allegations made in the complaint and oath and got marked documents Ex.P1 to Ex.P7. Ex.P1 minutes of meeting, Ex.P2 is the resolution, Ex.P3 is the tax invoice, Ex.P4 is the Cheque, Ex.P4(a) is the signature of accused, Ex.P4(b) & 4(c) are the Returned Bank Memo's, Ex.P5 is the Copy of Legal Notice, Ex.P5(a) & 5(b) are the Postal Receipts, Ex.P6 is the track consignment, Ex.P7 is the complaint. In the 8 CC.No.10011/2019 instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
11. As noted supra when the matter posted for cross- examination of PW1, complainant and accused jointly submitted Memo stating that accused has agreed pay total sum of Rs.3,50,000/- as full and final settlement towards this case and other connected two cases i.e., CCNo.10012/2019 and CCNo.10013/2019 and towards the payment of the said amount in this case accused agreed to pay Rs.1,50,000/- by way of DD/RTG's on 24.04.2020.
12. It is the definite case of the complainant that complainant submits that the accused approached the complainant to print Plastic covers from complainant factory and had placed an order for printed covers 480gram milk bread covers. In this context on 29th 9 CC.No.10011/2019 September 2018 invoice cum delivery challan with materials were dispatched and the same was acknowledged by accused. Complainant delivered goods worth of Rs.1,74,263/- inclusive of GST to accused. On receipt of the order accused have issued post dated cheque bearing No.803307 dated:15.10.2018 for Rs.1,74,263/- drawn on Syndicate Bank ATPAR branch, Bangalore in favour of the complainant which on presentation with their banker State Bank of India, JP Nagar, VI Phase branch, Bangalore for clearance, the same was dishonoured for the reasons 'Payment stopped by drawer' as per the banker memo dated 17.11.2018. Accordingly on 24.11.2018 complainant got issued a legal notice to the accused by RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of the said notice and the notice was served to the accused on 30.11.2018 and inspite of the service of the said notice accused failed to pay the cheque 10 CC.No.10011/2019 amount nor replied. Accordingly, the complainant filed the complaint against the accused for having committed an offence punishable u/s 138 of N.I. Act on 29.12.2018. In the instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
13. In this case the complainant PW1 had deposed that accused had issued cheque Ex.P4 with his signature Ex.P4(a) in discharge of his legally enforceable debt. It is pertinent to note that PW1 is not cross examined by the accused counsel disputing the signature Ex.P.4(a) in the disputed cheque nor the accused had lead any evidence to disprove the fact that the said signature Ex.P4(a) does not belong to him. In view of the same, the signature of the accused Ex.P4(a) in the disputed cheque Ex.P4 remains undisputed and unchallenged. It can be presume that the accused had admitted his signatures 11 CC.No.10011/2019 on the disputed cheque.
14. At this juncture I would like discuss the ruling reported in AIR 2018 Hon'ble Supreme Court 3601 (T.P Murugan (Dead) Thr.Lrs.V Bojan AND Posa Nandhi Rep.Thr, POA Holder, T.P Murugan v. Bojan) In this ruling at para-8 the Hon'ble Supreme Court has laid down the dictum of law that u/s 139 of the N.I Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability by referring to K.N.Beena v/s Muniyappan and Another, (2001) 8 SCC 458, para-6 and Rangappa v/s Shrimohan (2010) 11 SCC 411, para 26 . It is further held that the presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan. 12 CC.No.10011/2019
In the present case the accused has failed to produce any credible evidence to rebut the statutory presumption in the light of discussion made above. The complainant has proved the case by overwhelming evidence to establish that the cheque/Ex.P4 was issued by the accused towards discharge of an existing liability and legally enforceable debt.
15. In the instant case PW1 deposed that he had issued a legal notice Ex.P5 the accused requesting for payment of the outstanding balance through RPAD. On perusal of the document Ex.P5/legal notice, Ex.P5(a) & 5(b) postal receipts and Ex.P6 is the track consignment it is crystal clear that the notice was duly served to the accused and inspite of the said notice accused has not paid the amount nor replied to the notice due to which service of notice to the accused remained undisputed and unchallenged.
13 CC.No.10011/2019
16. At this juncture in the light of principle laid down by the Hon'ble Apex Court of India in a decision reported in 2007 (3) Crimes 120 (SC) (C.C. Alavi Haji V/s Palapetty Muhammed & Anr), it is crystal clear that if notice sent through RPAD by correctly addressing drawer of the cheque, mandatory requirement of issue of notice in terms of (b) of proviso to u/s 138 of N.I. Act stands complied with. The evidence on record clearly establishes that the complainant sent the notice to the accused to the correct address through RPAD and the said notice is duly served to the accused. Hence, sending legal notice to the correct address of the accused is in compliance with u/s 138(b) of N.I. Act as the dictum of law laid down in the above case. In the instant case accused neither issued reply nor paid cheque amount even after receipt of summons for the best reasons known to him. As noted supra when the matter posted for cross of PW1, complainant & accused jointly 14 CC.No.10011/2019 submitted Joint Memo stating that accused has agreed to pay a sum of Rs.3,50,000/- as full and final settlement towards this case and other connected two cases i.e., CCNo.10012/2019 and CCNo.10013/2019 and towards the payment of the said amount in this case accused agreed to pay Rs.1,50,000/- by way of DD/RTG's on 24.04.2020. In view of submission by both complainant and accused that they have no objections for the Court to pass the judgment in accordance to the terms mentioned in the Joint Memo the case is disposed accordingly.
17. In view of the same it is clearly established that accused has admitting the transactions and issuing of the cheque in discharge of his liability. Hence, in the considered view of this court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act. Hence, I answer the above point No.1 in the Affirmative.
15 CC.No.10011/2019
18. Point No.2:- Having regard to the facts and circumstances, I proceed to pass the following:
ORDER The accused is found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 264 of Cr.P.C. the accused 2 is convicted and sentenced to pay fine of Rs.500/-, in default shall undergo simple imprisonment for 15 days.
Acting u/s 357(3) of Cr.P.C. as per the agreement between the parties in the joint memo accused agreed to pay Rs.1,50,000/- by way of DD/RTG's on 24.04.2020.
In default undergo simple imprisonment of two months.
The joint memo shall be the part and parcel of this order.
The bail bond executed by the accused shall stand cancelled.16 CC.No.10011/2019
Supply free copy of the judgment to the accused. (Dictated to Stenographer directly on the Computer, taken print out corrected, signed by me and then pronounced in the open court this the 06th day of March, 2020).
(ABDUL RAHIM HUSSAIN SHAIKH) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:-
PW1 : Sri. Indris Khan
LIST OF WITNESSES EXAMINED ON BEHALF OF THE
DEFENCE:-
Nil
LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:-
Ex.P1 : Minutes of meeting
Ex.P2 : Resolution
Ex.P3 : Tax Invoice
Ex.P4 : Cheque
Ex.P4(a) : Signature of the accused
Ex.P4(b)&(c) : Returned Bank Memo
Ex.P5 : Legal notice
Ex.P5(a)&(b): Postal Receipts
Ex.P6 : Track consignment
Ex.P7 : Complaint
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
DEFENCE:-
Nil
XXVIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
17 CC.No.10011/2019
Judgment pronounced in the open Court vide separate order.
ORDER XXVIII A.C.C.M, Bangaluru.