Bangalore District Court
M/S.Shivram Traders vs Kumaran Printers & Binders on 20 February, 2020
IN THE COURT OF THE XXIII ADDL.CHIEF METROPOLITON
MAGISTRATE, NRUPATHUNGA ROAD, BENGALURU CITY
Dated this the 20th day of February - 2020
PRESENT: SRI. SHRIDHARA.M, B.A., LL.M.,
XXIII Addl.C.M.M., Bengaluru City.
C.C.NO.14831/2018
JUDGMENT UNDER SECTION 355 OF Cr.P.C.
Complainant : M/s.Shivram Traders,
A Proprietary concern,
Rep. by its Proprietor,
Narayanaswamy,
No.59, S.M.Lane, Cottonpet Cross,
Bengaluru-53.
(Rep. by Sri.Manjunath, Adv.)
V/S
Accused : 1. Kumaran Printers & Binders,
No.44, K.Kamaraja Road,
Bengaluru-42.
Proprietor K.Shiva Kumar.
2. K.Shivakumar,
S/o.Kannappan,
Proprietor of
Kumaran Printers & Binders,
R/at. No.6, V Main, HRBR Layout,
Kalyan Nagar,
Bengaluru-38.
(Rep.by Sri.Roshan Babu.V.G, Adv.)
OFFENCE COMPLAINED OF : U/Sec. 138 of Negotiable
Instruments Act.
PLEAD OF THE ACCUSED : Not guilty.
Judgment 2 C.C.No.14831/2018
FINAL ORDER : Accused Nos.1 and 2 are
Convicted .
DATE OF ORDER : 20.02.2020.
(SHRIDHARA.M)
XXIII Addl.CMM., Bengaluru.
JUDGMENT
The proprietor of M/s. Shivram Traders company concern has instituted the instant complaint against the accused Nos.1 and 2 on 23.03.2018 under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act, for dishonour of cheques of Rs.8,04,226/-.
2. The facts raised in the complaint is as follows in brief:
The complainant is in the business of supplying of papers which is used for printing purpose and he has got reputed name in the area of his business.
The complainant has further contended that, approximately in the year 2008, the accused approached the complainant for purchasing paper, which is used for printing purpose and he requested the complainant to supply on credit basis. The accused also assured the complainant for making prompt payments for the credit purchase and requested the complainant to maintain a Judgment 3 C.C.No.14831/2018 running account in that regard. The complainant being in the business for many years as agreed to supply the papers as per order placed by the accused on credit basis and he maintained the running account of his firm.
The complainant has further alleged that, for some years, the accused have been prompt in making payment of the papers received by them. But from some months, they have delayed the payment. The complainant has further submitted that, accused has confirmed that, there is a total balance of Rs.11,96,674/- as on 23.10.2017, the confirmation of the accounts by the accused is produced along with complaint. There was an outstanding loan for sum of Rs.9,46,674/- as on 02.01.2018. The ledger account/balance sheet of the accused company is produced herewith.
The complainant has further alleged that, even after many requests from the complainant to make the payment, accused did not make the payment. Thereafter, when the complainant pressurized the accused to make the payment, immediately or else he will stop the business with him and the accused have issued post dated cheques on 05.01.2018, drawn on UCO Bank, Indira Nagar Branch, Bengaluru dated:23.01.2018 bearing Judgment 4 C.C.No.14831/2018 Nos.964362 for sum of Rs.5,77,131/- and informed the complainant to present it for encashment on the given date. For the remaining payment, the accused gave another cheque bearing No.962750 for sum of Rs.2,27,095/- dated:23.01.2018, handed over on 10.01.2018 and informed the complainant to present it on the date of cheque, by that time, he would arranged found in his account. Even, then, the accused was outstanding balance of Rs.1,42,448/-.
The complainant has averred that, at the advice of the accused, he presented the cheques for encashment on 30.01.2018 through his banker viz., Karnataka Bank Ltd., Subashnagar Branch, Bengaluru. But he got shock and surprise to see the endorsement dated:31.01.2018, received by the complainant on 02.02.2018 stating "Funds Insufficient". The accused deliberately without maintaining sufficient funds in his account got issued questioned cheques, hence, he is liable to pay the cheques amount. Thereafter, on 17.02.2018, the accused got issued legal notice, demanding the accused to pay the amount covered under the cheques within 15 days, the said notice was received in the office of accused. Despite that, either he not paid the amount covered under the cheques or replied the notice.
Judgment 5 C.C.No.14831/2018 Thereby, he committed the offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
3. After receipt of the private complaint, this court took the cognizance and got registered the PCR and recorded the sworn statement. Since made out prima-facie grounds to proceed against the accused for the alleged offence, got issued process.
4. In response to the summons, the accused No.2 appeared through his counsel and obtained the bail. As required, complaint copy was supplied to the accused. Thereafter, accusation was read over and explained to accused Nos.1 and 2, wherein, they denied the same and claimed to have the defence.
5. To prove the case of the complainant, he himself choosen to examined as PW.1 and got marked Exs.P1 to P12. The PW.1 was subjected for cross-examination by the advocate for the accused. In the cross-examination of DW.1, complainant counsel got confronted eight documents and same are marked as Exs.D13 to D21.
6. Thereafter, incriminating evidence made against the accused Nos.1 and 2 were recorded under Section 313 of Cr.P.C, wherein the accused No.2 himself, on behalf of accused No.1 denied the same and the answer given by him was recorded. In Judgment 6 C.C.No.14831/2018 support of the defence, the accused No.2 himself, on behalf of accused No.1, was examined as DW.1, and not produced any documents in support of his defence and also subjected for cross- examination by the advocate for the complainant.
7. I have heard the arguments of complainant counsel. The accused counsel not addressed his side arguments.
8. On going through the rival contentions, based on the substantial evidence available on record, the following points have been arising for determination:
1) Whether the complainant proves beyond the reasonable doubt that, the amount made mentioned in Exs.P1 and P2 cheques for sum of Rs.8,04,226/- is the legally existing debt payable by the accused Nos.1 and 2 to the complainant?
2) Whether the complainant proves the guilt of the accused Nos.1 and 2 for the offence punishable under Section 138 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 7 C.C.No.14831/2018
REASONS
10. POINT NOs.1 and 2: Since both the points are connected with each other, they have taken together for common discussion in order to avoid repetition of facts.
The PW.1 to prove his case choosen to examined himself and filed affidavit by reiterating the complaint averments in toto, and produced the documents at Exs.P1 to P21, they are:
a) Exs.P1 and P2 are the cheques bearing Nos.964362 and 962750 issued by the accused Nos.1 and 2 for sum of Rs.5,77,131/- and 2,27,095/- respectively dated:23.12.2018, drawn on Uco Bank, Indira Nagar Branch, Bengaluru.
b) Exs.P1(a) and P2(a) are the alleged signatures of accused No.2.
c) Exs.P3 and P4 are the Bank Memos
dated:02.02.2018.
d) Ex.P5 is the Legal Notice dated:17.02.2018.
e) Exs.P6 and P7 are the Postal receipts.
f) Exs.P8 & P9 are the Postal Acknowledgment Cards.
g) Ex.P10 is the copy of confirmation of accounts pertaining to the complainant concern for the period from 01.04.2017 to 14.10.2017.
h) Ex.P11 is the ledger account extract pertaining to the complainant concern for the period from 01.04.2016 to 12.03.2018.
i) Ex.P12 is the private complaint.
j) Ex.P12(a) is the signature of complainant.
Judgment 8 C.C.No.14831/2018
k) Exs.P13 to P15 are the Invoice statement for the period from April, May & June, 2017 pertaining to the complainant concern.
l) Exs.P13(a) to P15(b) are some entries at Exs.P13 to P15.
m) Exs.P16 to P20 are the tax invoices pertaining to the complainant concern.
n) Ex.P16(a) to P20(a) are the signatures of accused No.2.
o) Ex.P21 is the account statement pertaining to the complainant concern and
p) Ex.P21(a) and P21(b) are some entries at Ex.P21.
The PW.1 was subjected to the cross-examination by the advocate for the accused. In support of his case the complainant through his counsel has produced the citation and relied upon same, it is;
a) AIR 2019 SC 4003
11. In order to prove the defence of the accused Nos.1 and 2, On behalf of accused No.1, the accused No.2 himself choosen examined as DW.1, but not produced any document. The DW.1 was subjected to the cross-examination by the advocate for the complainant.
12. While appreciate the materials on records and evidence, this court has gone through the decisions stated supra apart from the other decisions.
Judgment 9 C.C.No.14831/2018
13. After cross-examination of PW.1, the incriminating evidence made against the accused No.2 and his concern were read over and explained to them as required under Section 313 of Cr.P.C., wherein, the accused No.2 himself denied the same. In order to prove his probable defence, the accused No.2 was set out his probable defence by way of cross-examining the PW.1 in the witness box, wherein, the accused No.2 has taken altogether different stands stating, no notice is served on handed over him and he is not liable to pay any money to the complainant and on seeing the questioned cheques at Exs.P1 and P2, the signatures found therein is not of him and he not issued those cheques to the complainant, hence, he is not liable to pay the money covered under those cheques. When the accused No.2 personally appeared before this court and gave statement personally and on behalf of accused No.1 concern, as such, he choosen to entered into the witness box and took altogether different defence by way of filing affidavit on oath. The accused No.2 examined as DW.1, choosen to filed affidavit evidence. Wherein, in brief he contended that:
The accused No.2 is running business of printing in the name and style of accused No.1 by name Kumaran Printers and Binders for the past 30 years. Earlier, the complainant used to Judgment 10 C.C.No.14831/2018 supply paper materials to the accused for his printing press for the past 10 years. As per the oral understanding between complainant and accused, whenever he supplied the goods to the accused, at that time, the complainant received a blank cheque as security for the goods supplied. Later, the accused used to pay cash in respect of supplied goods and receive back the blank cheque from the complainant.
The accused No.2 also contended that, from August, 2017, he discontinued the business from the complainant, as he did no supply the goods good quality materials, as per his request; hence, he stopped all the transactions with the complainant. The complainant made several requests to continue the business, but accused did not accept, as he not specified with the quality of the materials supplied by the complainant. The last transaction held between accused and complainant was on 01.08.2017, when he received the goods from the complainant, he gave a blank cheque. Thereafter, the accused paid the sum of Rs.1,48,982/- to the complainant towards the supplied goods by him and demanded back the cheques given by him to the complainant. By that time, complainant informed the accused that, he kept those cheques in his office and will give it on the next day. Further, on the next day, when accused was demanded the complainant for Judgment 11 C.C.No.14831/2018 return those cheques, the complainant gave reason that, it was kept in somewhere else in his office, after search would return. Every time, when accused was requested for return those cheques, the complainant gave one or other reasons and postponed to return of cheques. Since the complainant knew the accused since 10 years believing his words and kept quite. The accused stopped transaction with the complainant, he started to purchase goods from another vendor. Whenever, complainant continuously demanded the accused to continue the business, whenever he met to oftenly with the accused, at that point of time, complainant never informed about the initiating the criminal proceedings against accused. Hence, he did not taken any legal action against the complainant.
The accused has further contended that, the complainant has alleged that, they supplied materials worth of Rs.11,96,674/- and same is due as on 01.08.2017 as per Ex.P10, by producing another document at Ex.P11. The complainant has contended that, as on 2018, accused was due of Rs.9,46,674/-. The accused has no due payable to the complainant as he never supplied the goods to him, worth more than Rs.5 lakhs. The goods supplied as mentioned in Exs.P10, no point of time was requirement of accused for such huge amount goods. The Judgment 12 C.C.No.14831/2018 requirements of the accused was very small and whenever, he was in need of goods from the complainant, used to place indenture of purchase and clear it as soon as goods are supplied to him in his office. His last transaction with the complainant was on 01.08.2017, hence, he cleared the amount of Rs.1,48,632/-.
The accused has further contended that, the complainant has not produced any document, as to the materials supplied to him, how much it was valued, where and when he supplied the materials with the signature on the bill. The accused also contended that, after receipt of the legal notice issued by the complainant on 17.02.2018, he got shock and surprise and enquired with the complainant regarding the same, then he informed the accused that, he do not continue the business with the complainant, he will initiate the proceedings against the accused on the cheque. As accused has health issues at that point of time, he could not lodge the complaint against the complainant for the illegal acts. Taking advantage of the same, complainant has filed the false case. The complainant got misused the security cheques and filed the false case and created Exs.P10 and P11 and filed the false case. Hence, he is not liable to pay the money and prayed for his acquittal. The DW.1 was Judgment 13 C.C.No.14831/2018 submitted for cross-examination from the advocate for his acquittal.
14. On going through the rival contentions of the parties, the fact that, complainant brought the present case based on Exs.P1 and P2 cheques pertaining to the accused alleging that, amount covered therein are the existence of legally recoverable debt, which is payable by the accused No.2 issued by him being a proprietor of accused No.1 concern, in respect of purchase of papers from the complainant as covered under Exs.P10 and P11. Therefore, it is the initial statutory presumption has to be drawn on the complainant that, since, he possessed the questioned cheques of the accused with the admitted signatures, it has to be presume that, for due discharge of existence of legally recoverable debt, the accused got issued the same unless and until contrary prove. It is significant fact to note that, it is the initial burden on the complainant to prove his probable defence, which attacks the claim of complainant. Therefore, it is the accused has to demonstrate that, the amount covered under the cheques are not legally recoverable debt, payable by him to he complainant, emerged out of the admitted transaction of papers supply by the complainant to the accused, as emerged in the present complaint.
Judgment 14 C.C.No.14831/2018
15. On going through the rival contentions of the parties, the fact that, Sri.Narayanaswamy - complainant herein is the proprietor of complainant concern M/s. Shivram Traders and doing the supply of papers for the purpose of printing is not in dispute. The fact that, the accused No.2 being the proprietor of accused No.1 concern by name Kumaran Printers and Binders is not in dispute. The accused No.2 used to purchase printing papers from the complainant is not in dispute. The fact that, the accused on oral request purchased the papers on credit basis by issuing cheque is not in dispute. The fact that, the papers supply transaction held between complainant and accused is not in dispute. The fact that, the questioned cheques at Exs.P1 and P2 with signatures therein belongs to the accused No.2 and cheques belongs to the accused No.1 is not in dispute.
16. The fact that, the legal notice issued by the complainant on 17.02.2018 is served on the accused is not in dispute. On going through the defence taken by the accused, it is right to appreciate herein itself that, the accused has put forth his defence by way of cross-examining the PW.1 on one line and when he himself appeared before the court, while record 313 of Cr.P.C. statement, when read over and explained, the incriminating evidence made against him, as well as accused No.1, the accused No.2 has Judgment 15 C.C.No.14831/2018 denied the incriminating evidence made against him and even denied the receipt of legal notice. That apart, he gave his statement that, on seeing questioned cheques at Exs.P1 and P2, he specifically stated that, he is not liable to pay the said money moreover, the signatures found therein is not of him and stated, those cheques were not given to the complainant, hence, he is not liable to pay any money to the complainant. If at all, the personal statement given by the accused, as he being the signatory of those cheques as proprietor of the accused No.1, on which strength, he gave those statement contrary to the suggestion made to the PW.1 is also created doubt, as to the bonafidness of the accused No.2 in defending the case. The very act of the accused No.2, gave those statement personally as well as on behalf of accused No.1 is to be deprecated.
17. That apart, the accused No.2 choosen to entered into witness box and altogether take separate defence against his own 313 of Cr.P.C. statement, wherein, he stated that, he clearly admitted that, he is running the business in the name of accused No.1 since 30 years and complainant since 10 years used to supply the paper materials on oral understanding. The statement of the accused, it made clear that, in respect of the supplying of papers by the complainant to the accused, there was no written Judgment 16 C.C.No.14831/2018 contract is entered into, as enforceable contract is made between them. Therefore, whatever the transaction put forth by the complainant and accused, admittedly, it was oral understanding as to supply of papers and payment made. The accused has stated that, whenever the complainant supplied the papers for security, he gave blank cheque and after clear the money by cash would taken back the said blank cheque from the complainant. If at all, he did so, on several occasions since 10 years, definitely, he could have produce necessary earlier cheques or any proof, as to the payment of cash, which acknowledged by the complainant. At least, any cash register maintained by the accused during the course of his business, but no such transaction is as such, produced by the accused. The production of those documents are very much required, as the complainant has projected the case that, the accused used to pay money on the maximum through cheques only. Even, in the cross of PW.1, he stated 99% the accused used to pay the payment through cheques only. Therefore, it is the accused has to establish, the said payment was made by cash and cleared earlier dues and taken back the cheques. At least to show that, the earlier cheques were given as security to the complainant and after clear the dues, taken back Judgment 17 C.C.No.14831/2018 the same, definitely, those cheques could have been produced, but the same also not been did.
18. The accused has also alleged that, since, August, 2017,he stopped business with complainant, as he is not supplied the papers of good quality. If at all not supplied good quality papers, whether, when it was supplied as such, what action initiated by him, by way of clear all the transaction could have closed the business, but to show that, the not good quality materials supplied by the complainant, no evidence is been placed by the accused. Even, to show that, as last on 01.08.2017 he received the goods from the complainant for the tune of Rs.1,48,982/-, he not produced any document, as to the particulars of goods, so purchased or payment, so made by him to the complainant. Therefore, because of not supplying the good quality of materials is stopped the business with the complainant, there is acceptable evidence placed by the complainant. The accused has contended that, after cleared sum of Rs.1,48,982/-, he asked the complainant to return those security cheques, but despite repeated requests made by him, not returned the same. If at all, it was the version of the accused No.2, the complainant withheld the blank cheques of the accused and pressurized him to continue the business, definitely, accused could have initiate necessary action to accept Judgment 18 C.C.No.14831/2018 in his affidavit evidence, he not stated anything either in the suggestion made to PW.1 or in the 313 of Cr.P.C. statement of the accused, nor could have raised those things give reply notice, but no such effort has been made by him. Therefore, it is clear that, there is no substance in the above defence of the accused. Hence, it is not safe to relied upon.
19. So far as, the allegations made in the affidavit para No.5 is concern, the accused has denied the transaction put forth by the complainant as per Exs.P10 and P11 for the tune of Rs.11,96,674/- and Rs.9,46,674/- on 01.08.2017 as well as in the year 2018 itself. Very particularly, the accused has alleged that, he is not purchased the materials from the complainant more than Rs.5 lakhs and whatever the materials he purchased, he got cleared. Therefore, it at all, his contention is so, definitely, it is him to rebut the documents at Exs.P10 and P11 and convince this court that, he only purchased the materials worth Rs.5 lakhs not more than that, but in that regard, he not produced any document. But in his cross-examination, apart from he admitted the transaction held between complainant and accused, when tendered the confirmation of account pertaining to the account maintained by the complainant in respect of the materials Judgment 19 C.C.No.14831/2018 supplied, the accused on seeing the document, admitted his signature therein, hence, it was marked as Ex.P10.
20. On careful perusal of the Ex.P10, the signature is also affixed by the accused dated:23.10.2017. Therefore, it made clear that, the said admitted document is prior to dispute arise between complainant and accused and why he affixed the signatures, if he not produced materials worth Rs.25,99,317/- as found therein through out. The said document also discloses the outstanding balance payable by the accused and the payment made by the accused also. However, the accused also in his cross-examination deposed that, he being an B.Com. graduate, do know the meaning of words general sales and banking receipt as well as payment. But suggestion made to the accused that, the accused not did any cash transaction with the complainant, but only did through cheques. The DW.1 volunteers that, he did 99% cash transaction and on few occasions, did cheque transaction. If at all, he alleged did cash transaction, at 99%, definitely, for each receipt of money and payment or else receipt of the materials supplied by the complainant as well as got cleared the dues, as he purchased the materials on credit basis, he require to maintain document, but no document is been furnished as such.
Judgment 20 C.C.No.14831/2018
21. In his cross-examination it was suggestion made to PW.1 that, as on the date of issue legal notice at Ex.P3 as found in Ex.P11, the accused was due of Rs.9,46,674/-, for payment of the said money, got issued the questioned cheques at Exs.P1 and P2 by the accused, but he denies the same. It is significant fact to note that, it was a suggestion made to the accused that, apart from he gave the questioned cheque for payment of such amount, still he was due of Rs.1,42,448/-. The same also denied by the accused. The accused has deposed that, whenever he paid money to the complainant, the complainant not issued the receipt as well as not returned the cheques obtained earlier. If at all, he did so, at least could have produce the receipts maintained by him or the account extract pertaining to his daily account as to the payment pass on by the accused to the complainant. But no such effort is been made. He also deposed that, the complainant not returned the cheques, as he said; whenever he purchased the materials used to issue cheques on every transaction and after making payment got taken back those cheques. Under such circumstances, it is the accused is best person to say that, in respect of which amount, he got issued those cheques and despite it cleared the money, why not taken back those cheques, nothing particulars has been furnished. Though the accused has Judgment 21 C.C.No.14831/2018 denied that, the alleged transaction, by contending that, only did transaction worth Rs.5 lakhs in his further cross-examination, he deposed that:
"¸ÁQëUÉ ¦gÁå¢ ¸ÀA¸ÉÜAiÀÄÄ DgÉÆæUÉ ¥ÀÇgÉʹzÀAvÀºÀ E£ïªÁAiÀiïì ¸ÉÖÃmïªÉÄAmïUÀ¼À£ÀÄß vÉÆÃj¸À¯ÁV ¢B09.05.2017 gÀAzÀÄ gÀÆ.7,748.58 ªÀåªÀºÁgÀ ªÀiÁrzÉÝãÀÉ ¸Àj JAzÀÄ ¸ÁQë £ÉÆÃr M¦àPÉÆAqÀ ªÉÄÃgÉUÉ E£ïªÁAiÀiïì UÀ¼À£ÀÄß ¤¦.13 jAzÀ 15 ªÀÄvÀÄÛ ¤¦.13 gÀ ««zÀs ªÀåªÀºÁgÀzÀ ¢£ÁAPÀzÀ «ªÀgÀ£ÀÄß ¤¦.13(J), 14(J) ªÀÄvÀÄÛ (©), 14(J)¬ÄAzÀ, ªÀÄvÀÄÛ ¤¦.15(J) ¤AzÀ 15(r)ªÀgÉUÉ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¸ÁQëUÉ ¦gÁå¢ ¸ÀA¸ÉÜAiÀÄ DgÉÆæAiÉÆA¢UÉ ªÀåªÀºÀj¹zÀÝ §UÉÎ mÁåPïì E£ïªÁAiÀiïì£ÀÄß vÉÆÃj¸À¯ÁV ¸ÁQë CªÀÅUÀ¼À°ègÀĪÀAvÀºÀ vÀ£Àß ¸À»UÀ¼À£ÀÄß UÀÄgÀÄw¹zÀ ªÉÄÃgÀUÉ, CªÀÅUÀ¼À£ÀÄß C£ÀÄPÀæªÀĪÁV ¤¦.16 jAzÀ 20, ¸À»UÀ¼À£ÀÄß 16(J) jAzÀ 20(J) JA§ÄzÁV UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¸ÁQë ¤¦.17(J) ¸À» vÀ£Àß PÉ®¸ÀUÁgÀ£ÀzÀÄÝ JA§ÄzÁV £ÀÄrAiÀÄÄvÁÛgÉ."
22. On meticulous perusal of the said testimony of DW.1, when the tax invoice statement in respect of the materials supplied to the accused tendered, he clearly admitted the entry suggested him that, on 09.05.2017, accused did transaction worth of Rs.7,748.58. The said entry has been admitted by him. That apart, he also admitted the invoice at Exs.P13 to P15 in respect of the materials purchased by him on the various dates. By affixing Judgment 22 C.C.No.14831/2018 the signature to the said invoice, the accused got received the materials. Even, he identified his worker signature at Ex.P17(a), apart from his admitted signature. Therefore, it made clear that, on calculation of the invoice produced by the complainant as per Exs.P15 to P20, in all the complainant has supplied the materials worth of Rs.16,96,709/-. Though, the said admitted document discloses, the accused purchased the materials worth of Rs.16,96,709/-, on which basis he projected the case stating only purchased the materials worth of Rs.5 lakhs, itself created doubt and the documentary evidence at Ex.P15 to P20, which destroyed the probable defence of the accused that, the defence taken by the accused is false against the true transaction.
23. In the evidence of DW.1, he stated, he only did monetary transaction 99% with complainant, but in his cross-examination he admitted that:
"1£Éà DgÉÆævÀ£À ¸ÀA¸ÉÜAiÀÄ ºÉ¸Àj£À°è £É¥sïÖ ªÀÄÄSÁAvÀgÀ gÀÆ.1,60,000/- ªÀÄvÀÄÛ gÀÆ.1,50,000/- ¢£ÁAPÀ 01.02.2017 gÀAzÀÄ ¥ÁªÀw¹zÀ §UÉÎ ¦AiÀiÁ𢠸ÀA¸ÉÜUÉ ¸ÀA§AzÀs¥ÀlÖAvÀºÀ CPËAmï ¸ÉÖÃmïªÉÄAmï£ÀÄß ¸ÁQëUÉ vÉÆÃj¸À¯ÁV CzÀ£ÀÄß ¸ÁQëAiÀÄÄ M¦àPÉÆAqÀ ªÉÄÃgÉUÉ ¤¦.21, ¸ÀzÀj ¢£ÁAPÀUÀ¼À «ªÀgÀªÀ£ÀÄß ¤¦.21J ªÀÄvÀÄÛ 21© JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ."
Judgment 23 C.C.No.14831/2018
24. As per say of DW.1, he clearly admitted, through NEFT in the name of accused No.1 concern, on two occasions he paid Rs.1,60,000/- as well as Rs.1,50,000/- to the complainant and the said statement tendered to the DW.1 got admitted, hence, the said entries were marked in the said document at Ex.P21. The said entries clearly disclose, the accused make payment through the cheques also. In order to show that, apart from the said cheque payment, he used to pay the money by way of cash, admittedly, not produced a single scrap of paper, if he did. Therefore, the very contention of the accused that, he did transaction not more than Rs.5 lakhs is ruled out. Moreover, the admitted document at Exs.P10 to P20, clearly manifest the due payable by the accused and the same also acknowledged by the signature of the accused No.2 in respect of item supplied to him. Therefore, those documents are vital document, which prove the case of the complainant and disprove his very contention.
25. In the affidavit evidence accused has contended, he used to place indenture of purchase and clear it as soon as goods are supplied to him in his office. In order to show that, he did indenture of purchase placed to the complainant as alleged at least he did once against the oral understanding made between the complainant and accused, not produced any single scrap of Judgment 24 C.C.No.14831/2018 paper. Though, he stated at last, on 01.08.2017 he did transaction with the complainant and got cleared by paying cash of Rs.1,48,632/-. What is the transaction he did so, other than the arrears of due made mentioned in the Exs.P10 to P20, is not been satisfactorily explained. If at all, any amount paid by the accused not found in the transaction placed by the complainant, definitely, he has liberty to convince the complainant as well as court to got set up. But it is not his contention that, despite, he cleared the money, complainant has brought the present case with false contention. Without producing any scrap of document, straightaway stating and questioning the document without any base, it cannot be accepted and the accused become an graduate though admittedly, did the transaction since, 10 years more than Rs.25 lakhs as found Ex.P10, he projected his defence, and utterly failed to prove the same, as the documentary evidence, as well as oral evidence of the PW.1, which destroyed the probable defence. Hence, it is the consider opinion of this court that, accused has utterly failed to prove his probable defence, as to avoid his liability.
26. During the course of cross of DW.1, it was clear cut suggestion made to the DW.1 that, while issue on at Ex.P3, as found in Ex.P11, the accused was due of Rs.9,46,674/-.
Judgment 25 C.C.No.14831/2018 Therefore, for making such payment, he got issued questioned cheques at Exs.P1 and P2. The same came to be denied by the accused and it was say of complainant that, despite, got issued those cheques, accused was still due sum of Rs.1,42,448/-. Therefore, it is clear that, though accused issued questioned cheques for payment of substantial outstanding due, not honoured the same. Despite, the notice of dishonour of those cheques were issued to the accused and served on the accused, he not paid the money. The contention of the accused that, if he not continued business with the complainant would initiate proceedings against accused is, there is no base, as he was already due of cheques amount and cheques at Exs.P1 and P2 were also given for making payment. Unless, the accused not paid the money, the complainant pressurizing the accused No.2 to continue the business, there is no substance in saying so, hence, totally the accused No.2 failed to prove the probable defence. The accused failed to discharge his initial burden, to avoid the liability covered under the questioned cheques. Therefore, created reverse burden on the complainant to prove the case does not arise. However, the complainant has projected the case by contending that, the accused was due of Rs.11,96,674/- as on 23.10.2017 and the said due payable by the accused is Judgment 26 C.C.No.14831/2018 acknowledged in confirmation of accounts at Ex.P10 by affixing his signature at Ex.P10(a).
27. That apart, the Ex.P11 ledger account extract maintained by the complainant, pertaining to he sale made to the accused clearly discloses, the accused was due of Rs.9,46,674/- as on 23.10.2017. The complainant has successfully in establishing that, by way of production of Exs.P10 to P20, the said documents are admitted by the accused by way of affixing signature, which clearly manifest that, the complainant did the transaction and maintained by obtaining signature of the accused and his men, while he supplied the materials. Therefore, the accused utterly failed to prove that, those documents produced by the complainant pertaining to the undisputed point of time is genuine. No single suggestion is made, as to those documents stating, those are created or unrelated to the transaction done by him.
28. The complainant has clearly contended that, for payment of sum of Rs.9,46,674/-, the accused got issued cheques at Exs.P1 and P2 of Rs.5,77,131/- and Rs.2,27,095/-. The signatures and cheques belongs to the accused is not in dispute. Even, he not taken any such contention that, the complainant got filled those cheques, on subsequent dates and presented them for Judgment 27 C.C.No.14831/2018 encashment. Due execution and issuance of cheques is not denied by the accused during he course of cross of PW.1. Such being the fact, immediately after receipt of bank endorsement at Exs.P3 and P4, the complainant gave notice at Ex.P5 to the accused, the same also admittedly received by the accused. Despite that, if at all, he is not liable to pay any money in respect of credit transaction held by him over the period of 10 years, definitely, he could have cause necessary reply or initiate necessary action against the complainant for misusing the cheques, but it is not his contention.
29. Any how, the documents produced by the complainant at Exs.P9 to P21, which clearly manifest that, the transaction held by the complainant and accused and liability of the accused with regard to the cheques amount at Exs.P1 and P2. The accused has utterly failed to prove any probable defence, which attack on the claim of complainant from the point of oral as well as documentary evidence led by the complainant. The accused is liable to pay the amount covered under the cheques, as he utterly failed to disprove the case of complainant. Even though, during the course of cross-examination of PW.1, several admissions made by accused, as to the payment made through RTGS and cheques. The PW.1 in his cross-examination has withstood his Judgment 28 C.C.No.14831/2018 contention in the line of complaint averments and allegations. Even, it was also suggested that, prior to 5 months earlier to filing the present complaint, the accused did transaction with the complainant is been admitted. Without denying the transaction put forth by the complainant, at once it was suggested to the PW.1 that, the accused not purchased the items worth of Rs.5,27,000/- and only gave 2 singed blank cheques as security and by misusing the same falsely filed the case by the complainant, is been denied by the PW.1. The PW.1 has denied the alleged creation of documents at Exs.P10 and P11. Though, PW.1 was subjected for cross-examination, nothing worthwhile elicited from the mount of him to disprove the case of complainant and prove the probable defence of the accused.
30. The PW.1 has successfully withstood his contention and proved his case beyond the reasonable doubt. Though, accused got issued questioned cheques for payment of amount covered under the Exs.P1 and P2, the accused No.2 not maintained sufficient funds in the account of accused No.1 concern, he being a proprietor. Despite issue legal notice by the complainant at Ex.P5, accused though received the said notice not cleared the said due and continued the commission of offence till the day. Therefore, the accused is liable to pay the amount covered under Judgment 29 C.C.No.14831/2018 the cheques at Exs.P1 and P2. Out of the cheques amount of Rs.8,04,226/-, which is to be recover as fine, then, the same for Rs.7,94,226/- has to be payable to the complainant as compensation and remaining amount of Rs.10,000/- payable to the state as fine amount. If the accused Nos.1 and 2 failed to pay the said amount, as default sentence, the accused No.2 shall undergo simple imprisonment for 12 months.
31. As discussed above by way of furnishing clear, convincing, corroborative, oral as well as documentary evidence has proved that, the accused Nos.1 and 2 have committed the offence punishable under Section 138 of Negotiable Instruments Act. Therefore, looking into the transaction, it is the considered opinion of this court that, the accused No.2 has taken bald, inconsistence defence without any base and failed to prove his improbable defence. Contrary, the PW.1 has established his case beyond the reasonable doubt through oral as well as documentary evidence. Thereby, unnecessarily cause the complainant to approach this court of law, therefore, the accused No.2 is liable to be punished by way of imposing fine sentence. Therefore, the accused Nos.1 and 2 are to be convicted by imposing the cheques amount as fine. If the accused Nos.1 and 2 failed to pay the said amount, as default sentence, the accused No.2 shall undergo simple Judgment 30 C.C.No.14831/2018 imprisonment for 12 months. Out of the said fine amount, sum of Rs.7,94,226/- shall be payable to the complainant as compensation to the complainant and remaining amount of Rs.10,000/- shall be payable to the state as fine amount. Accordingly, if the accused Nos.1 and 2 fails to pay the whole fine amount, the accused No.2 shall undergo simple imprisonment for 12 months. Thereby, one more opportunity has provided to the accused Nos.1 and 2 to comply the order. Otherwise, the very purpose of filing complaint will be defeated. As discussed above, the complainant has proved his case beyond reasonable doubt. In the result, the accused Nos.1 and 2 shall sentence to pay the fine amount as detailed in the order portion. Accordingly, Point Nos.1 and 2 are answered in the Affirmative.
32. Point No.3: In view of my findings on point Nos.1 and 2, I proceed to pass the following:
ORDER Accused Nos.1 and 2 found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C.
the accused Nos.1 and 2 is convicted for the
offence punishable under Section 138 of
Judgment 31 C.C.No.14831/2018
Negotiable Instruments Act and sentence to pay fine of Rs.8,04,226/-.
Out of the said fine amount, sum of Rs.7,94,226/- 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 pay the fine amount, the accused No.2 shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused 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 20th day of February
- 2020) (SHRIDHARA.M) XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Narayanaswamy Judgment 32 C.C.No.14831/2018
List of Exhibits marked on behalf of Complainant:
Exs.P1 & P2 : Original Cheques Exs.P1(a) & P2(a) : Signatures of accused No.2 Exs.P3 & P4 : Bank endorsements Ex.P5 : Office copy of legal notice Exs.P6 & P7 : Postal receipts Exs.P8 & P9 : Postal Acknowledgment cards Ex.P10 : Copy of Confirmation of accounts Ex.P10(a) : Signature of accused No.2 Ex.P11 : Ledger account extract Ex.P12 : Private complaint Ex.P12(a) : Signature of complainant Exs.P13 to P15 : Invoice Statements Exs.P13(a) to P15(b) : Some entries at Exs.P13 to P15. Exs.P16 to P20 : Tax invoices Exs.P16(a) to P20(a) : Signatures of accused No.2 Ex.P21 : Account statement Ex.P21(a) & P21(b) : Some entries at Ex.P21
List of Witnesses examined on behalf of the defence:
DW.1 : K.Shivakumar List of Exhibits marked on behalf of defence:
- Nil -
XXIII Addl. Chief Metropolitan Magistrate, Bengaluru.
Judgment 33 C.C.No.14831/2018 Judgment pronounced in the open court vide separate order.
***** ORDER Accused Nos.1 and 2 found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under Section 255(2) of Cr.P.C.
the accused Nos.1 and 2 is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and sentence to pay fine of Rs.8,04,226/-.
Out of the said fine amount, sum of Rs.7,94,226/- 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 pay the fine amount, the accused No.2 shall under go simple imprisonment for 12 (Twelve) Months.
The bail bond and cash security/surety bond of the accused 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.