Bangalore District Court
M/S. Mirza International Pvt. Ltd vs M/S. Leather Mart E Commerce on 3 March, 2023
KABC0C0250152018
IN THE COURT OF XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM-34)
PRESENT: Smt.PARVEEN A BANKAPUR, B.Com.LLB.
XXXIV ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 3rd day of March, 2023.
C.C.No.57596/2018
COMPLAINANT : M/s. Mirza International Pvt. Ltd.,
No.14/6, Civil Lines,
Kanpur,
Uttar Pradesh
And also Branch Office
at No.75, Sy No. 24/3,
Kyalasanahalli Village,
Opp to S.S.SR., Group Of
Institution,
K.R. Puram Hobli,
Bengaluru East Taluk,
Bengaluru - 560 077.
Rep by its Sales Head
Regional Sales Manger,
Mr. Syed Khaleel Ur Rehman
(By Mr.H.N. Ramesh - Advocates)
V/s
ACCUSED : M/s. Leather Mart E Commerce
Solutions Pvt. Ltd.,
Office at Novel Business Park,
No.57, 13th Cross, Gajendra Nagar,
Anepalya,
Bengalutu -30.
Rep by Its Proprietor,
Mr.Anslem Prathap
And also at:
2 C.C.No.57596/2018
(a) CH Maheshwarinagar,
1st Main Road, Mahadevapura,
White Field Road, Bengaluru.
(b) No.13, 3rd Cross, Errappa Garden
Austin Town,
Bengaluru -47.
(c) No.8, Diana House Buchappa
Garden, Ejipura, Near Chavara
Church, Bengaluru - 47.
2:Mr.Azam Pasha
Marketing Head,
Sales and Purchase,
Office at Novel Business Park
No. 57, 13th Cross,
Gajendra Nagar, Anepalya
Bengaluru - 560 030.
(By Mr. J.T. Gireesha - Advocate)
1 Date of Commencement 23.06.2018
of offence
2 Date of report of offence 28.07.2018
3 Presence of accused
3a. Before the Court 05.11.2018
3b. Released on bail 05.11.2018
4 Name of the Complainant M/s. Mirza International Pvt. Ltd.
5 Date of recording of 01.08.2018
evidence
6 Date of closure of evidence 22.09.2022
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused are found guilty.
JUDGEMENT
The Private Complaint is filed by the complainant under Section 200 of Cr.P.C against the accused persons alleging that 3 C.C.No.57596/2018 they have committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complaint are as follows:
The complainant submits that, it is the owner of the Trader name, Trade mark, Service Mark and Logo with the name and style "Bond Street & Red Tape', for the sale of Footwear of the Complainant company. The Complainant company is registered under the Companies Act. The Accused approached the complainant for distribution of Footwear item manufactured by the complainant company under the name and style 'Bond Street (above MRP 1000) & Red Tape Footwear in the region of Bengaluru vicinity. Accordingly, the accused have entered into agreement of distribution with the complainant company on 15.11.2017 with the payment of Rs.10 lakhs as interest free security deposit.
It is further submitted in the complaint that, as per the said agreement the accused company sales and purchasing marketing head Mr.Azam Pasha has contacted the complainant company along with their business colleague Mr. Jafar Ahamed and placed order for purchasing the 4 C.C.No.57596/2018 Footwear. Accordingly, the complainant company has supplied the footwear items to the accused under the invoice dtd.17.11.2017 to 16.4.2018 for total value of Rs.38,59,276/-
and the same has been received and acknowledged by the accused. Out of the said amount, the accused paid Rs.1 lakh and also return some of the footwear items under the sale return for an amount of Rs.2,05,795/-. The outstanding balance of Rs.35,48,285/- is due from the accused as on 16.4.2018. Inspite of several oral requests the accused have not made said payment.
It is further submitted that, the complainant has got issued the legal notice dtd.5.6.2018 calling upon the accused to pay the said amount. After receipt of the legal notice dtd.5.62018 the accused approached the complainant and issued a cheque bearing No.568247 dtd.23.6.2018 drawn on Axis Bank Ltd., Koramangala branch, Bengaluru for Rs.25,48,285/- and the same was presented by the complainant through its banker. But the same was returned with an endorsement 'stop payment'. Thereafter, the Complainant got issued demand notice through RPAD on 13.07.2018 through his counsel. But the same was returned 5 C.C.No.57596/2018 unserved with a shara :"address left" and the notice sent to the address C.H. Maheshwarinagar, 1st Main Road, Mahadevapura, Whitefield Road, Bengaluru was returned with a shara 'insufficient address'. But the notice sent through Professional Courier was duly served on the accused. Inspite of receipt of legal notice, the accused have neither paid the Cheque amount nor replied to the notice. Accordingly, the Complainant has filed present complaint against the Accused persons for the offence punishable u/Sc.138 of N.I Act. Hence, this complaint.
3. Based on the complaint, the sworn statement affidavit, and documents etc., the court took cognizance of an offence punishable Under Section 138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to be registered a criminal case against the accused for the offence punishable Under Section 138 of N.I. Act.
4. After issuance of summons, accused appeared before the court and enlarged themselves on bail. Plea was recorded, read over and explained to the accused persons, who pleads not guilty and claims to be tried. Hence, the case is posted for complainant's evidence.
6 C.C.No.57596/2018
5. The Regional Sales Manager of Complainant company got examined himself as PW-1 and he got marked 40 documents as Ex.P.1 to Ex.P.40. He also got examined one more witness from his end as PW2 and he got marked one document as Ex.41 and closed his side.
6. The statement as required under Section 313 of Cr.P.C. was recorded. The accused denied all the incriminating evidence appeared against them. The Accused have not tendered their evidence.
7. I heard the arguments. In addition to the oral arguments, the learned counsel for accused No.2 has filed written arguments.
The learned counsel for complainant has placed the following citations;
1. ILR 2005 KAR 3167 in the case of M/s. Manon Ventures V/s. M/s. Birla 3M Ltd.
2. ILR 2006 KAR 4672 in the case of J.Ramaraj V/s. Iliyaz Khan
3. ILR 2007 KAR 311 in the case of Mr. Umraz Khan V/s. Mr. A. Jameel Ahmed and Another 7 C.C.No.57596/2018
4. ILR 2007 KAR 2189 in the case of Jayamma V/s. Lingamma
5. AIR 2019 SC 1876 in the case of Rohitbhai Jivanlal Patel V/s. State of Gujarat and Another
6. 2019 (1) Kar.L.R. 596 in the case of M/s. Ajmera Housing Corporation v/s. Ramachandra
7. 2019 (2) Kar.L.R. 717 (SC) in the case of Uttam Ram Vs. Devinder Singh Hudan and Another
8. 2018 (4) AIR 116 in the case of Nagaraj Damodarsa Bakale V/s. Smt. Leelavati M. Mamardi
9. AIR 2018 SC 3601 in the case of T.P. Murugan (Dead) Thr. Lrs. V/s. Bojan Posa The learned counsel for accused has placed the following citations;
1. (20175 (5) SCC 737 in the case of N. Parameswaran Unni V/s. G. Kannan and Another
2. (2009) 2 SCC 513 in the case of Kumar Exports V/s.Sharma Carpets
3. ILR 2007 KAR 2709 in the case of M. Senguttuvan V/s. Mahadevaswamy
4. 2003 Cri.L.J. 411 in the case of C. Antony V/s. K.G. Raghavan Nair
5. ILR 2004 KAR 2938 in the case of Shashi Prakash V/s. B. Krishna Murthy
6. ILR 2008 KAR 3635 in the case of K. Narayana Nayak V/s. Sri M. Shivarama Shetty 8 C.C.No.57596/2018
7. ILR 2014 KAR 6572 Sri H. Manjunath V/s. Sri A.M. Basavaraju
8. AIR 2006 SC 3366 in the case of M.S. Narayana Menon @ Mani V/s. State of Kerala and Another
9. ILR 2009 KAR 2331 in the case of B. Indramma v/s. Sri Eshwar
8. Upon hearing the arguments and on perusal of the materials placed on record, the following points arise for my consideration.
1) Whether complainant proves beyond all reasonable doubts that accused in discharge of legally recoverable debt has issued a Cheque bearing No.568247 dtd. 23.06.2018 for Rs.25,48,285/- in favour of the complainant which came to be dishonoured with an endorsement "payment stopped by drawer" on 26.06.2018 and in spite of service of notice accused have not paid the Cheque amount and thereby committed an offence under Section 138 of N.I.Act?
2) What Order?
9. My findings on the above points is:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS Point No.1:-
10. Existence of legally recoverable debt is a sine qua non for prosecuting the case under Section 138 of Negotiable 9 C.C.No.57596/2018 Instruments Act. For convenient purpose the essential ingredients to constitute offence under Section 138 of N.I. Act is summarized as below:
(i) That there must be a legally enforceable debt.
(ii) That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes the legally enforceable debt.
(iii) That the cheque so issued had been returned due to insufficiency of funds.
11. It is the specific case of the Complainant that, the Complainant company is registered under the Companies Act and the Complainant company is the absolute owner of the trade name, trade mark, service mark and logo with the name and style 'Bond Street and Red Tape' for the sale of footwear of the Complainant company. It is further submits that, the Accused has approached the Complainant company for distribution of footwear items manufactured by the Complainant company in Bengaluru vicinity. It is further submitted that, the Accused have entered into an agreement of distribution with the Complainant on 15.11.2017 with the payment of Rs.10 lakhs as interest free security deposit. It is further submits that, as per agreement, the Accused company Sales and Purchasing Marketing Head Mr. Hazeem Pasha has 10 C.C.No.57596/2018 contacted the Complainant company along with business colleague Mr.Jafer Ahmed and placed order for purchasing the footwear items. Accordingly, the Complainant has supplied the footwear items to the Accused under invoice dtd.17.11.2017 to 16.4.2018 and same has been received and acknowledged by the Accused. It is further submits that, the total value of the footwear supplied by the Complainant is Rs.38,59,276/-, out of out, the Accused has paid Rs.1,00,000/- and also returned the some of footwear items, the sale return for an amount of Rs.2,05,795/-. Therefore, the outstanding balance of Rs.35,48,285/- is due from the Accused as on 16.4.2018. It is further submitted that, on several demand and requests, the Accused has not paid due payment to the Complainant. Thereafter, the Complainant had issued notice dtd.5.6.2018, calling upon the Accused to pay the balance due. After receipt of the notice, the Accused approached the Complainant and issued Cheque bearing No.568247 dtd.23.6.2018 for Rs.25,48,285/- and same was dishonoured with reason 'Stop payment'. It is further submits that, the Complainant got issued legal notice to the Accused on 13.7.2018, calling upon the Accused for the payment of Cheque amount. The said notice was returned to the Complainant with shara 'addressee left' and another notice returned with shara 'insufficient 11 C.C.No.57596/2018 address'. It is further submits that, the legal notice sent through Professional Courier has been duly served upon the Accused. It is further submits that after receiving the legal notice, the Accused has not come forward to pay outstanding due. Therefore, the Complainant constrained to file the present case against the Accused for the offence punishable u/Sec.138 of N.I. Act.
12. The Regional Sales Manager of Complainant company has examined himself as PW1 and reiterated the contents of the complaint. He has produced original Cheque bearing No.568247 dtd.23.6.2018 for Rs.25,48,285/- at Ex.P1, bank endorsement at Ex.P2, agreement of distribution at Ex.P3, Tax Invoices dtd.17.11.2017 to 10.2.2018 total 20 invoices are marked at Ex.P4 to Ex.P23, copy of legal notice issued by the Complainant to the Accused through his counsel dtd.5.6.2018 at Ex.P24, copy of legal notice issued by the Complainant to the Accused through his counsel dtd.13.7.2018 at Ex.P25, 10 postal receipts are marked together at Ex.P26, 5 professional courier receipts are marked at Ex.P27 to 31, 5 unserved postal covers at Ex.P32 to 36, authorization letter at Ex.P37, Invoice 12 C.C.No.57596/2018 bill dtd.8.1.2018 at Ex.P38, e-way bill dtd.23.1.2018 at Ex.P39 and e-way bill dtd.6.2.2018 at Ex.P40.
13. The documents produced by the complainant of course established that complainant meets out the procedural requirements of Section 138 of Negotiable Instrument Act, but it is to be considered whether all these documents establish the offence committed by the accused.
14. The Negotiable Instruments Act raises two presumptions. One contained in Section 118 and the other in Sec. 139 thereof. For the sake of convenience Sec 118(1) of the N.I. Act is extracted here below:
118. Presumptions as to negotiable Instruments--
Until the contrary is proved, the following presumptions shall be made ;--
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
To (g) . . . . . . . . . . . .
13 C.C.No.57596/2018
Provided that where the instrument has been obtained from its lawful owner, or from an person in lawful custody thereof, by means of an offence of fraud, or has been obtained from the maker or acceptor thereof by means of an offence of fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him".
15. Further Section 139 of the Negotiable Instruments Act reads as under:
"139, Presumption in favour of holder. 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, of any debt or other liability."
Scope and ambit and function of the presumption U/s 118(a) and Sec 139 of NI Act came to be considered by the Hon'ble Apex Court of Indian in Krishna Janardhan Bhat Vs Dattatraya G.Hegde (2008 AIAR (Criminal 151) The Supreme Court has laid down the law in the following phraseology.
" D Negotiable Instruments Act 1881, Secs 139, 138--Presumption under-same arises in regard to second aspect of the matter provided under Sec 138-- Existence of legally enforceable debt is not a matter of presumption under Sec 139- It merely raises presumption in favour of a holder of the cheque that 14 C.C.No.57596/2018 the same has been issued for discharge of any debt or other liability - Merely an application of presumption contemplated under Section 139 of N.I.Act should not lead to injustice or mistaken conviction."
16. Further, said decision was followed by Hon'ble High Court of Karnataka in Kempanarasimhaiah Vs P.Rangaraju & Others (2008 (5) KCCR 3371). Relevant paragraph of the said judgment reads as under: -
"12. As to the provisions of Sections 138 of N.I.Act, the following principles emerge from the above observations of Hon'ble Supreme Court at para Nos 21, 23, 25, 26 and 34 of its Judgment in the above said case of Krishna Janardhan Bhat Vs Dattatraya G.Hegde, AIR 2008 SC 1325.
(i) Section 139 of the Act merely raises a presumption that the cheque was issued towards discharge in whole or in part in any debt or other liability, which presupposed legally enforceable debt. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability." ( para 21)
(ii) The question as to whether the presumption stood rebutted or not, must be determined keeping in view the other evidences on record. Where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their 15 C.C.No.57596/2018 legal requirements are required to be taken into consideration. (para 26)
(iii) An accused, for discharging the burden of proof placed upon him under a statute, need not examine himself.
He may discharge his burden on the basis of the materials already brought on records (para 23)
(iv) Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Further more where as prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is " preponderance of probabilities'" ( para 23 & 25)
(v) Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies ( para 25)
(vi) Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be deliberately balanced (para 34)
17. Thus from the observations extracted above, it is clear that presumption Under Section 139 of the N.I,.Act is only to the extent that the cheque was drawn for discharge in full or in part of any debt or other liability and the said presumption do not relate to the existence of legally enforceable debt or liability. Therefore, before drawing the presumption under section 139 of the N.I.Act, it is the duty of the Court to see whether or not the complainant has discharged his initial burden as to existence of 16 C.C.No.57596/2018 legally enforceable debt. No doubt, as per Section 118(a) of the Act, there is a rebuttable presumption that every negotiable instrument, is accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration."
18. Factual matrix of the case is required to be tested on the anvil of principles emerging from the above-referred decisions.
19. The defence taken by the Accused No.2 is that, there is no transaction between Accused No.2 and Complainant company and whatever transaction taken place between Accused No.1 and Complainant is noway concerned to the Accused No.2. The Cheque in question was noway related to the Accused No.2 and on 15.10.2015 the Accused No.2 was resigned to the company.
20. The defence taken by the Accused No.2 that, authorized representative is not competent person to depose on behalf of Complainant company. It is further defence that e-way bills and invoices are not tallied.
17 C.C.No.57596/2018
21. The Sales Head of the Complainant company has examined himself as PW1. In the evidence he reiterated the contents of the complaint and deposed that there is a agreement executed between Accused and Complainant on 15.11.2017, the Accused has received footwear items as supplied by the Complainant company under invoice dtd.17.11.2017 to 16.4.2018 and he only paid Rs.1,00,000/- and returned back the goods worth of Rs.2,05,795/-. The outstanding due of Rs.38,59,276/- is due as on 16.4.2018. In this regard the Complainant had issued legal notice to the Accused for repayment of loan amount, at that time, the Accused had issued Cheque bearing No.568247 dtd.23.6.2018 which was dishonoured with reason 'stop payment by the Accused'. It is further deposed that the Accused is liable to pay Cheque amount, accordingly, the Complainant had issued legal notice to the Accused on his official, residential address, both were returned with reason 'address left' and 'insufficient address. Thereafter, the Complainant had issued legal notice to the Accused, in which the legal notice issued through professional couriers were duly served upon the Accused. 18 C.C.No.57596/2018
22. PW1 placed Ex.P4 to 23, 38 to 40 are tax invoices along with e-way bills. On perusal of Ex.P4 to 23 and 38 to 40 which are discloses that, the Complainant company has been supplied footwear items as described in column No.2 of every invoice bill, which total worth of the footwear items as per the e-way bills and invoices, total Rs.38,59,276/-. It is admitted by the Complainant that, Accused has paid Rs.1,00,000/- and returned the goods worth of Rs.2,05,795/-. Therefore, the outstanding balance is Rs.35,48,285/- as on 16.4.2018, out of which, the Accused has issued Cheque bearing No.568247 at Ex.P1 for Rs.25,48,285/- as part payment.
23. The defence of the Accused is that, invoice bills and e-way bills are not tallied. On perusal of Ex.P4 invoice is Rs.1,51,741/- and e-way bill is Rs.1,51,740.92/-, Ex.P5 invoice bill is Rs.7,31,396/- and e-way bill Rs.7,31,395.86, Ex.P6 invoice bill is Rs.2,48,648/- and e-way bill is Rs.2,48,648.42/-, Ex.P7 invoice bill is Rs.14,405/-, Ex.P8 invoice bill is Rs.22,360/-, Ex.P9 invoice bill is Rs.2,93,165/-, e-way bill is Rs.3,19,556.76. Like this, the Complainant has produced invoices and e-way bills. In the cross-examination of PW1, the 19 C.C.No.57596/2018 learned Counsel for accused has not denied the e-way bills or invoices.
24. It is pertaining to note that, the Complainant supplied all goods to the YCK Logistics India Pvt. Ltd., as per the say of the Accused and they are shifted to on the address of the Novel business part, No.57, 13 th Cross, Gajendra Nagar, Anepalya, Bengaluru. In Ex.P3 agreement of distribution also the same address was mentioned for supplying of the goods. The deposition of the PW1 is as under; ಎಂದು "ಎಲ್ಲಾ ಸರಬರಾಜುಗಳನ್ನು YCH Logistic India Pvt. Ltd., ಎನ್ನು ವಲ್ಲಿಗೆ ಮಾಡಲಾಗಿದೆ. ಆಪಾದಿತರಿಗೆ ಮಾಡಿರುವುದಿಲ್ಲ ಎಂದರೆ ಆಪಾದಿತರು ಕೋರಿಕೆಯ ಮೇರೆಗೆ ಸರಬರಾಜು ಮಾಡಲಾಗಿದೆ ಎಂದು ಸಾಕ್ಷಿ ನುಡಿಯುತ್ತಾರೆ. YCH Logistic India Pvt. Ltd. ಗೆ ಸರಬರಾಜು ಮಾಡುವಂತೆ ಆಪಾದಿತರು ಕೋರಿಕೊಂಡಿದ್ದ ರು ಎನ್ನು ವ ಬಗ್ಗೆ ನ್ಯಾಯಾಲಯಕ್ಕೆ ದಾಖಲೆಯನ್ನು ಕೊಟ್ಟಿಲ್ಲ . ಇನ್ವಾಯಿಸ್ನ ಲ್ಲಿರುವ ಶಿಪ್ಡ್ ಎಂದರೆ ವಸ್ತು ಗಳನ್ನು ಕಳುಹಿಸಿಕೊಡುವುದು ಎಂದು ಅರ್ಥ. ಶಿಪ್ಡ್ ಎನ್ನು ವ ವಿಳಾಸದಲ್ಲಿ ನೋವೇಲ್ ಬಿಸಿನೆಸ್ ನಂ.57, 13 ನೇ ಕ್ರಾಸ್, ಗಜೇಂದ್ರನಗರ, ಆನೆಪಾಳ್ಯ ,ಬೆಂಗಳೂರು ಎನ್ನು ವ ವಿಳಾಸವನ್ನು ಶಿಪ್ಡ್ ಎನ್ನು ವ ಎಲ್ಲಾ ಕಾಲಂನಲ್ಲಿ ಬರೆಯಲಾಗಿದೆ ಎಂದರೆ ಸರಿ."
"ನಿ ಪಿ 3 ರ ಕರಾರಿನಲ್ಲಿ ಈ ಕರಾರಿನಲ್ಲಿ ಈ ಮೇಲೆ ಹೇಳಿದ ವಿಳಾಸ ನಮೂದಾಗಿದೆ ಎಂದರೆ ಸರಿ. ಎಲ್ಲಾ ಸರಬರಾಜುಗಳನ್ನು YCH Logistic India Pvt. Ltd., ಗೆ ಸರಬರಾಜು ಮಾಡಿ ಅವರಿಂದ ದಾಖಲೆಗಳನ್ನು ನಮ್ಮ ಕಂಪನಿಗೆ ಅನುಕೂಲವಾಗುವಂತೆ ಪಡೆದುಕೊಂಡು ಆಪಾದಿತರಿಗೆ ಸಂಬಂಧವಿಲ್ಲ ದೇ ಇದ್ದ ರೂ ಹಾಜರು ಮಾಡಲಾಗಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ .20 C.C.No.57596/2018
ಖಾಸಗಿ ಫಿರ್ಯಾದಿಯಲ್ಲಿ ತಿಳಿಸಿರುವ ವಿಳಾಸಕ್ಕೆ ನೋಟೀಸ್ ಮಾಡುವಾಗ ಆಪಾದಿತರು ಅಲ್ಲಿ ವಾಸವಿರಲಿಲ್ಲ ಎಂದರೆ ಸರಿ. ನೋಟೀಸ್ ಕೊಡುವ ಮೊದಲಿನಿಂದಲೂ ಆಪಾದಿತರು ನಂ.307, ಮೈತ್ರಿ ಮೆಡಿಸಿನ್, ಸೋಮಸಮುದ್ರಪಾಳ್ಯ ಹೆಚ್ ಎಸ್ ಆರ್ ಲೇಔಟ್ ಬಡಾವಣೆ, ಬೆಂಗಳೂರು - 102 ವಿಳಾಸದಲ್ಲಿ ವಾಸವಾಗಿದ್ದ ರು ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ ."
25. PW2 is the General Manger of YCH Logistic examined in the support of Complainant. He deposed that, he working as a Manager of YCH Logistic Pvt. Ltd., since from 10 years. He deposed that he has provide logistic service, YCH is a total logistics service provider and provides supply chain consultancy, transportation, freight forwarding, warehouse management, warehousing and other logistic related services. He further deposed that, their company was agreement with Accused No.1 company on 1.10.2017 and they have received goods supplied by the Complainant company on behalf of Accused company and kept in their warehouse. Thereafter, they supplied the said goods to the Accused company.
26. In the cross-examination also he stated that, Ex.P4 to 23 items were received by one Mr. K. Ramakrishna Karthika and his signature were seen on Ex.P4 to 23. In the cross- examination he stated that, they have provide ware house 21 C.C.No.57596/2018 space for keeping the goods of the Accused whichever received by them from the Complainant company. The said deposition of the PW2 is as under;
"ಆರೋಪಿಯು ಸರಕುಗಳನ್ನು ನಮ್ಮ ವೇರ್ ಹೌಸ್ನ ಲ್ಲಿ ಇಟ್ಟು ಕೊಳ್ಳ ಲು ಜಾಗ ಮಾತ್ರ ನಾವು ನೀಡುತ್ತಿದ್ದೆವು ಎಂದು ಹೇಳುತ್ತಾರೆ. ಫಿರ್ಯಾದಿ ಕಂಪನಿಯಿಂದ ಸ್ವೀಕರಿಸಿದ ಸರಕುಗಳನ್ನು ಆರೋಪಿ ಕಂಪನಿಗೆ ಅಥವಾ ಅವರ ಗ್ರಾಹಕರಿಗೆ ಕೊಟ್ಟಿರುತ್ತೇವೆಂದು ನಾನು ಈಗಾಗಲೇ ಹೇಳಿದ್ದು ಆ ಬಗ್ಗೆ ದಾಖಲೆಗಳನ್ನು ಹಾಜರುಪಡಿಸುತ್ತೀರಾ ಎಂದು ಕೇಳಿದ ಪ್ರಶ್ನೆಗೆ ಸಾಕ್ಷಿದಾರರು ಫಿರ್ಯಾದಿ ಕಂಪನಿಯಿಂದ ಸ್ವೀಕರಿಸಿದ ಸರಕುಗಳನ್ನು ಅವರ ನಿರ್ದೇಶನದ ಮೇರೆಗೆ ಯಾರಿಗೆ ಕೊಡಬೇಕೆಂದು ಹೇಳಿರುತ್ತಾರೊ ಅವರಿಗೆ ಕೊಟ್ಟಿರುತ್ತೇವೆ ಎಂದು ನುಡಿಯತ್ತಾರೆ ."
27. Therefore, from the evidence of PW1 and 2, it is clear that, the Complainant company has been issued footwear items as per Ex.P4 to 23 and 38 to 40 to the Accused company through PW2 - Logistic Service and also the Accused has not denied the invoices and not denied the receiving of footwear items from the Complainant company.
28. The another defence taken by the Accused is that, PW1 has not authorized person to represent the Complainant company. The PW1 has placed authorization letter at Ex.P37 in which, PW1 authorized to act on behalf of DGM of Complainant company. In this regard the learned Counsel for Complainant 22 C.C.No.57596/2018 has relied ILR 2005 KAR 3167 in the case of M/s. Menon Ventures V/s. M/s. Birla 3M Ltd., wherein it is held that;
"PW1 is an employee in the Complainant's company and he is authorized by his company to appear and give evidence on behalf of the company. Complaint filed by the authorized employee- maintainability of the complaint questioned - Held - It is seen that the complaint is signed by the Managing Director of the Complainant company. Therefore, non-signing of the complaint by PW1 is not fatal to the case of the Complainant. It is seen that the PW1 was the authorized officer shown in the cause-title and the Managing Director of the company has absolute power to prosecute and file a complaint. Of course, u/sec.291 of the Companies Act, there must be a resolution passed by the Board of Directors of the company authorizing the Managing Director of or any other competent officer to file a suit or prosecute in the competent court. Therefore, the contention of the learned Counsel revision petitioner does not hold good. The Managing Director under the Memorandum of Association and Articles of Association was authorized to file a complaint or suit. In the instant case, the complaint filed by the Managing Director through authorized officer PW1. Therefore, there is no illegality as such committed by the courts below by convicting the Accused."
29. In the present case also PW1 is a official of Complainant company, who working as Sales Head and through letter of authority he competent to act as a Complainant DGM.
30. Another defence taken by the Accused is that, legal notice issued by the Complainant was not served upon the 23 C.C.No.57596/2018 Accused. In the complaint and in his examination in chief the PW1 stated that, before issuing of Cheque, the Complainant company has issued legal notice to the Accused, demanding the due amount of Rs.35,48,285/- to the Complainant on 5.6.2018, calling upon the Accused to pay the outstanding due amount. The Complainant has placed office copy of that notice at Ex.P24, in which the address of the Accused shown as per the cause title of the complaint. After dishonour of the Cheque, the Complainant again issued notice to the Accused on the same address demanding payment of Cheque amount, which were returned 'address left' and 'insufficient address'. The Complainant was sent the legal notice as per Ex.P25 on the same address, but the notice was returned unserved. Further, Complainant issued copies of the notice through professional courier, which were duly served to the Accused. In this regard, the counsel for Complainant relied on decision ILR 2007 KAR 2189 in the case of Jayamma v/s. Lingamma wherein, it is held that;
"Negotiable Instrument Act Sec.138 - offence under - Complaint - Acquittal - Finding of the Trial court, that the complaint is not got marked and the Complainant has not proved service of notice of 24 C.C.No.57596/2018 dishonour on the respondent - Pleaded against - Held, complain forms part of the record and if need not be marked and non-marking of the complaint is not fatal to the Complainant's case - Further held, if the notice sent by the Registered Post is returned as unclaimed, the notice should be presumed to have been served if it is sent to the correct address of the party - On facts, held, all the ingredients of Sec.138 of N.I. Act are proved and the Complainant has proved his case - Judgement of acquittal is set aside - Accused is convicted.
31. Further, it is useful to refer decision of 2007 (2) DCR 321 SC in between CC Alavi Haji Vs.Palapetty Mohammed and another wherein Hon'ble Supreme Court held that;
Negotiable Instrument Act 1881 Sec.138 (b); conditions are stipulated in the proviso Sec.138 of Negotiable Instrument Act, extracted above. Under Clause (b) of the Proviso, the payee or the holder of the Cheque in due course is required to give a written notice to the drawer of the Cheque within a period of 30 days from the date of receipt of information from the bank regarding the return of the Cheque as unpaid. Under Clause(c), the drawer is given 15 days time from the date of receipt of the notice to make the payment and only if he fails to make the payment, a complaint may be filed against him. As noted above, 25 C.C.No.57596/2018 the object of the proviso is to avoid unnecessary hardship to an honest drawer. Therefore, the observance of stipulation in quoted Clause(b) and its aftermath in Clause(c) being a pre-condition for invoking Sec.138 of Negotiable Instrument Act, giving a notice to the drawer before filing complaint u/sec.138 of Negotiable Instrument Act is mandatory requirement.
Service of notice - presumption of - The Hon'ble Supreme Court held in para No.14 that; if returned unclaimed or not as refused no significant difference so far as presumption is concerned. Sec.27 gives raise to a presumption that service of notice has been effected when it is sent to the correct address by Registered Post. In view of the said presumption, when stating that a notice has been sent by Registered Post to the address of the drawer, it is unnecessary to further aver in the complaint that inspite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This court has already held that when a notice is sent by 26 C.C.No.57596/2018 Registered Post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee is not in station", due service has to be presumed. (vide Jadadish Singh Vs. Nathu Singh, AIR 1992 SC 1604, State of M.P. Vs. Hiralal and others (1996) 7 SCC 523 and P. Rajakumari Vs. P. Sub-Barama Naidu and another (2004) 8 SCC
774). It is, therefore, manifest that in view of the presumption available u/Sec.27 of the Act, it is not necessary to aver int eh complaint u/Sec.138 of Negotiable Instrument Act that service of notice was evaded by the Accused or that the Accused had a role to play, in the return of the notice unserved.
32. In the present case also the Complainant has sent notice to the Accused persons on correct address through Registered Post also. Moreover, the notice is sent through Professional Courier are duly served upon the Accused. Therefore, contention raised by the Accused not sustainable.
33. From the above discussion, it is proved that the cheque in question was issued by the accused to discharge the legally recoverable debt or liability. The accused did not place 27 C.C.No.57596/2018 satisfactory rebuttal evidence so as to not legal recoverable debt. The accused has failed to put acceptable and satisfactory evidence to probabilise the defence.
34. Therefore, complainant has discharged his initial onus laid on him. When he has discharged his initial onus, it raises presumption U/s 118(a) and 139 of Negotiable Instruments Act. Accused have failed to rebut the presumption in the cross-examination of PW-1 and 2 and by leading their evidence.
35. Further, it is also not disputed that cheque Ex.P.1 bears signatures of the authorized signatory of Accused No.1 company and it pertains to their Account maintained at Axis Bank Ltd., Koramangala branch, Bengaluru. The complainant has complied all the requirements of the Section 138 of Negotiable Instruments Act. On the other hand, the defence taken by the accused is not at all sufficient to rebut the presumption available in favour of the complainant under S.139 of the Negotiable Instruments Act. Therefore, considering the fact and circumstances of the case and oral and documentary evidence placed by both parties, Complainant has 28 C.C.No.57596/2018 discharged his initial onus laid on him. When he has discharged his initial onus, it raises presumption U/s118(a) and 139 of Negotiable Instrument Act. Accused have failed to rebut the presumption by cross-examination of PW-1 and 2 or by leading their evidence. Since Accused have admitted their signature of authorized signatory on the Cheque and said Cheque was dishonoured. Hence, they are committed offence punishable u/Sec.138 of N.I. Act.
36. So, far as sentence and compensation is concern, an offence punishable under section 138 of N.I. Act, is a civil wrong and compensatory in nature, punitive is secondary, considering, the above settled principal of law with facts and circumstances of the case, which clearly reveals that, the Accused has outstanding due of Rs.35,48,285/-, out of which, he has issued Cheque of Rs.25,48,285/- towards part of due amount, cheque in question issued by the accused to the complainant, therefore, it is issued for legally recoverable debt, therefore considering the nature of transaction, duration of pendency, litigation expenses, I am opinion that, if sentence of Fine of Rs.32,66,900/- (Rupees Thirty-two Lakhs Sixty-six 29 C.C.No.57596/2018 Thousand and Nine Hundred only) is imposed that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.32,66,900/- (Rupees Thirty-two Lakhs Sixty-six Thousand and Nine Hundred only) , out of that, the complainant is entitled for sum of Rs.32,61,900/- (Rupees Thirty-two Lakhs Sixty-one Thousand and Nine Hundred only) as a compensation as per Sec.357(1) of Cr.P.C., remaining amount of Rs.5,000/-, is to be appropriated to the state, in case of default the accused shall under go simple imprisonment for a period of 1 year. Accordingly, the Point No.1 is answered in Affirmative.
37 . Point No.2 : In view of discussion held in Point No.1 to 3, I proceed to pass the following :
ORDER Acting U/S 255(2) of Cr.P.C., the accused are convicted for the offence punishable Under Section 138 of Negotiable Instrument Act. Accused are sentenced to pay fine of Rs.32,66,900/- (Rupees Thirty-two Lakhs Sixty-
six Thousand and Nine Hundred only) in default to undergo simple imprisonment for 1 year. Further, it is made clear that out of fine amount, Rs.32,61,900/- (Rupees Thirty-two Lakhs Sixty- 30 C.C.No.57596/2018 one Thousand and Nine Hundred only) is to be paid to the complainant as compensation and Rs.5,000/- is ordered to be remitted to the State.
Bail bond stands cancelled.
Supply the free copy of this judgement to the Accused forthwith.
(Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 3rd day of March, 2023) PARVEEN A Digitally signed by PARVEEN A BANKAPUR BANKAPUR Date: 2023.03.03 17:49:19 +0530 (PARVEEN A BANKAPUR) XXXIV ACMM, Bengaluru.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr. Syed Khaleel Ur Rahman P.W.2 Mr. Jossy Sebastian
2. Documents marked on behalf of complainant:
Ex.P.1 Cheque Ex.P.2 Bank endorsement Ex.P.3 Agreement of Distribution Ex.P.4 to Tax invoices 23
Ex.P.24 & Office copies of Legal Notices dtd.5.6.2018 & 25 13.7.2018 Ex.P.26 Postal receipts Ex.P.27 to Courier receipts 31 Ex.P.32 to Unserved postal covers 36 Ex.P.37 Authorization letter Ex.P.38 Invoice Ex.P.39 & E-way bills 40 Ex.P.41 Notarized copy of Identity card of PW2
3. Witnesses examined on behalf of Accused:NIL 31 C.C.No.57596/2018
4. Documents marked on behalf of Accused :NIL Digitally signed by PARVEEN A PARVEEN A BANKAPUR BANKAPUR Date: 2023.03.03 17:49:37 +0530 (PARVEEN A BANKAPUR) XXXIV ACMM, Bengaluru.