Bangalore District Court
M/S.Peregrine Phosphate (P) Ltd vs Mr.Parashuram Anandagouda Goudar on 8 February, 2023
C.C.NO.13250/2019
0
KABC030423782019
Presented on : 15-06-2019
Registered on : 15-06-2019
Decided on : 08-02-2023
Duration : 3 years, 7 months, 23 days
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
BA.,LLB.,LL.M
XXVIII A.C.M.M, Bengaluru City.
DATED: THIS THE 08 th DAY OF FEBRUARY-2023
C.C.NO.13250/2019
Complainant: M/s.Peregrine Phosphate (P) Ltd.,
Rep by its Director, Mr.Madhu Kumar Varma,
Age 49 years, S/o Sri.Vijay Varma Raj.B.M,
No.312, B Wing, 3rd Floor, Mittal Tower, No.6,
M.G.Road, Bangalore-560001.
Rep by its Manager, Mr.Pavan.G.Patil,
S/o Sir. Ganeshrao Patil, Age: 31 years.
(By Sri.Vijaya Kumar.M.,Advocate.,)
V/s
Accused: Mr.Parashuram Anandagouda Goudar
S/o Sri Anandagounda, Age: Major,,
Proprietor of Hrushikesh Krushi Udyog,
Mudnal Building 1947, A/2b, M.G.Road,
Opp: Kannada School, Tq: Muddebihal,
District-Bijapur-586212.
R/at:- Thangadagi Road, Sangameshwar
Nagar, Muddebihal Post and Taluk, District
Bijapur-586212.
(By Sri.C.B.Abdul Sab & Associates.,)
C.C.NO.13250/2019
1
:JUDGMENT:
This case arises out of the private complaint filed by the complainant against the accused under section 200 of Cr.P.C., for an offence punishable under section 138 of Negotiable Instruments Act.
2. The case of the complainant's in brief is as under:
It is submitted by the complainant is that the accused is the Proprietor of Hrushikesh Krushi Udyog and is actively engaged in conducting the business and is in charge and is responsible for the day to day affairs of Hrushikesh Krushi Udyog. It is further stated that the accused is a customer of the complainant since 2015 and has been purchasing the Chemical Fertilizers on credit from the complainant from time to time, and is having a running account with the complainant, wherein the accused makes part payments to the complainant against the purchases made in respect of various invoices. The complainant agreed to sell the Chemical Fertilizers to the the accused on credit, as the accused agreed to the terms and conditions mentioned in the respective invoices and the accused also agreed to the C.C.NO.13250/2019 2 terms and conditions stipulated in the dealership agreement. It is further submitted that in respect of transactions the accused had with the complainant in the material of purchase of Chemical Fertilizers on credit from time to time under various invoices from 01.04.2015 to 31.03.2016, on 01.04.2016 to 31.03.2017, on 01.04.2017 to 31.03.2018, on 01.04.2018 to 28.11.2018 the accused is now due in a sum of Rs.10,85,315/- to the complainant towards the balance of Principal and interest amount, after deducting the payments made by the accused to the complainant from time to time. The aforesaid Chemical Fertilizers under various Invoices were sent by the complainant to the accused through Road Transport from time to time. It is further stated that the accused is due to the amount of the mentioned invoices and interest debit note as under:-
KA 28 009-Hrishikesh Krishi Udyog, Muddebihal -Sri Dwarakamayee Agro Agencies, Kampli Sl.No. Ref. Date Vehicle No. E-Sugam Pending No. 1 3170 16/Jan/2017 MH20W 5291 138475.50 Dr 2 3207 30/Jan/2017 MH20W5291 351315.00 Dr 3 3226 04-Feb-2017 KA28B5025 68000.00 Dr C.C.NO.13250/2019 3 4 0154 27/Jun-2017 GA 05 T 6407 4405.00 Dr 5 0155 27/Jun-2017 GA 05 T 6407 27756135407 310000.00 Dr 6 8 31/Jul/2018 Debit Note 213119.00 Dr Total 1085314.50 Dr
3. It is further stated that on 02.02.2018, A board meeting was held amount the Directors of the complainant wherein a company Board Resolution has been passed by the Directors wherein all the Directors of the complainant company have passed a company board resolution for their Manager by name Mr.Pavan.G.Patil to file and prosecute the case and do such other acts as stated in the company board resolution and that the manager by name Mr.Pavan.G.Patil and has personal knowledge of all the transactions. The complainant company have also given a letter of Authorization on 09.04.2018 for their Manager by name Mr.Pavan.G.Patil to file and prosecute the case.
4. It is further stated that on the repeated demands and personal approaches made by the complainant to the accused to repay the aforesaid amount, the accused had issued a cheque bearing C.C.NO.13250/2019 4 No.514084 dated: 17.11.2018 for a sum of Rs.10,85,315/- drawn on Syndicate Bank Muddebihal, Bijapur-586212 in favour of the complainant towards the balance of the principal amount due by the accused. The complainant presented the said cheque to the bank for encashment through the Axis Bank Ltd., Shanthinagar branch, Bangalore-560027 on 17.11.2018. The aforesaid cheque was returned with remarks 'Funds Insufficient' in the account of the accused as per memo of dishonour dated: 20.11.2018 which was received by the Axis Bank Ltd., Shanthinagar, Bangalore-560027 and also to the complainant on 27.11.2018. Thereafter, the complainant got issued a legal notice on 18.12.2018 as contemplated under Section 138 of the Negotiable Instruments Act to the accused through registered post acknowledgment due stating about the fact of dishonor of said cheque and calling upon the accused to make the payment thereon within 15 days from the date of receipt of the said notice. The said notice was duly served to the accused on 22.12.2018 and the accused C.C.NO.13250/2019 5 have acknowledged the receipt of the said notice. After receipt of the legal notice the accused neither reply the notice nor paid the cheque amount to the complainant. As such, the accused has committed an offence punishable under section 138 of N.I.Act. The complainant is entitled for compensation towards the face value of the aforesaid cheque with interest thereon @18% p.a and legal charges as provided under the provisions of section 357 of the code of criminal procedure Hence, the present complaint came to be filed before this court on 04.02.2019.
5. After the complaint was filed, the cognizance of the offence cited therein was taken and it was registered as P.C.R.No.4950/2019. Sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 14.06.2019 to register the case in Reg.No.III.
6. Thereafter, summons was issued to the accused and he appeared before the court through advocate and secured bail. He was furnished its C.C.NO.13250/2019 6 necessary papers as complied under section 208 of Cr.P.C. Thereafter, the plea of the accused was recorded by the court. He has pleaded not guilty and claimed to be tried.
7. The complainant in support of its case have examined its Manager as PW.1 and got marked total 14 documents at Ex.P.1 to 14 and closed its side. The learned counsel for the accused has submitted no cross examination of PW.1. Hence, cross of P.W.1 taken as nil.
8. After closer of the evidence of the complainant, the statement of the accused under section 313 of Cr.P.C, was recorded. He has denied the incriminating evidence appearing against him. In his defense the learned counsel for the accused has submitted no defence evidence. Hence defence evidence taken as nil.
9. Heard the arguments on both the sides and perused the material placed on record.
10. Upon hearing the arguments and on perusal of the material placed on record, the following points C.C.NO.13250/2019 7 arise for my consideration:
1.Whether the complainant proves the existence of legally enforceable debt/ liability.?
2. Whether the complainant further proves that the accused had issued a cheque-Ex.P.8, towards the discharge of the said legally enforceable debt/ liability.?
[
3.Whether the complainant further proves that Ex.P.8 was dishonored for "Funds Insufficient" in the account of the accused and thereafter the accused had failed to repay the same within the statutory period, inspite of receipt of legal notice.?
4.Whether the accused have thus committed an offence punishable under section 138 of N.I.Act.?
5. What order or sentence?
11. My answers to the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: As per final order, for the following:
C.C.NO.13250/2019 8 REASONS
12.POINT NO.1 TO 4: These points are inter- related to each other and finding given on any one point will bearing on the others. Hence, in order to avoid repetition of facts and evidence, I have taken these points altogether for common discussion. The case of the complainant is that he was acquainted with the accused. Further the accused is the Proprietor of Hrushikesh Krushi Udyog and is actively engaged in conducting the business and is in charge and is responsible for the day to day affairs of Hrushikesh Krushi Udyog. Further the accused is a customer of the complainant since 2015 and has been purchasing the Chemical Fertilizers on credit from the complainant from time to time, and is having a running account with the complainant, wherein the accused makes part payments to the complainant against the purchases made in respect of various invoices. The complainant agreed to sell the Chemical Fertilizers to the the accused on credit, as the accused agreed to the terms and conditions mentioned in the respective invoices and the accused also agreed to the terms and C.C.NO.13250/2019 9 conditions stipulated in the dealership agreement. In respect of transactions the accused had with the complainant in the material of purchase of Chemical Fertilizers on credit from time to time under various invoices from 01.04.2015 to 31.03.2016, on 01.04.2016 to 31.03.2017, on 01.04.2017 to 31.03.2018, on 01.04.2018 to 28.11.2018 the accused is now due in a sum of Rs.10,85,315/- to the complainant towards the balance of Principal and interest amount, after deducting the payments made by the accused to the complainant from time to time. The aforesaid Chemical Fertilizers under various Invoices were sent by the complainant to the accused through Road Transport from time to time. The accused is due to the amount of the mentioned invoices and interest debit note as stated in para No.9 of the complaint.
13. On 02.02.2018, A board meeting was held amount the Directors of the complainant wherein a company Board Resolution has been passed by the Directors wherein all the Directors of the complainant company have passed a company board resolution for C.C.NO.13250/2019 10 their Manager by name Mr.Pavan.G.Patil to file and prosecute the case. On the repeated demands and personal approaches made by the complainant to the accused to repay the aforesaid amount, the accused had issued a cheque bearing No.514084 on 17.11.2018 for a sum of Rs.10,85,315/- drawn on Syndicate Bank Muddebihal, Bijapur-586212 in favour of the complainant towards the balance of the principal amount due by the accused. The complainant presented the said cheque to the bank for encashment through the Axis Bank Ltd., Shanthinagar branch, Bangalore-560027 on 17.11.2018. The aforesaid cheque was returned with remarks 'Funds Insufficient' in the account of the accused as per memo of dishonour on 20.11.2018 which was received by the Axis Bank Ltd., Shanthinagar, Bangalore-560027 and also to the complainant on 27.11.2018. Thereafter, the complainant got issued a legal notice on 18.12.2018 as contemplated under Section 138 of the Negotiable Instruments Act to the accused through registered post acknowledgment due stating about the fact of dishonor C.C.NO.13250/2019 11 of said cheque and calling upon the accused to make the payment thereon within 15 days from the date of receipt of the said notice. The said notice was duly served to the accused on 22.12.2018 and the accused have acknowledged the receipt of the said notice. After receipt of the legal notice the accused neither reply the notice nor paid the cheque amount to the complainant. As such, the accused has committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court on 04.02.2019.
14. In support of the case, the complainant's have examined its Manager as P.W.1 and 14 documents were marked at Ex.P.1 to 14. In the chief examination P.W.1 has repeated the contents taken by the complainant in the complaint. Ex.P.1 is the Resolution dated: 02.02.2018. Ex.P.2 is the Authorization letter on 09.04.2018. Ex.P.3 is the computerized copy of the ledger account for the period on 01.04.2014 to 31.03.2015. Ex.P.3(a) is the relevant certificate of Ex.P.3. Ex.P.4 is the computerized copy of the ledger C.C.NO.13250/2019 12 account for the period on 01.04.2015 to 31.03.2016. Ex.P.4(a) is the relevant certificate of Ex.P.4. Ex.P.5 is the computerized copy of the ledger account for the period on 01.04.2016 to 31.03.2017. Ex.P.5(a) is the relevant certificate of Ex.P.5. Ex.P.6 is the computerized copy of the ledger account for the period on 01.04.2017 to 31.03.2018. Ex.P.6(a) is the relevant certificate of Ex.P.6. Ex.P.7 is the computerized copy of the ledger account for the period 01.04.2018 to 20.11.2018. Ex.P.7(a) is the relevant certificate of Ex.P.7. Ex.P.8 is the cheque issued by the accused in favour of the complainant on 17.11.2018 for a sum of Rs.10,85,315/-. Ex.P.8(a) is the signature of the accused. Ex.P.9 is the bank memo informing of the dishonor of the cheque. Ex.P.10 is the office copy of legal notice. Ex.P.10(a) to 10(c) are the postal receipts. Ex.P.11 to 13 are the Postal Acknowledgments. Ex.P.14 is the Complaint. The learned counsel for the accused has submitted no cross examination of PW.1. Hence, cross examination of PW.1 taken as nil.
15. Further in order to prove the guilt of the C.C.NO.13250/2019 13 accused for an offence punishable under section 138 of Negotiable Instrument Act, 1881, the complainant is required to prove the following ingredients beyond reasonable doubt:
i. The accused had issued a cheque in favour of complainant.
ii. The said cheque has been issued in discharge of a legally recoverable debt or liability and is for consideration. iii. The said cheque has been dishonored on presentation.
iv. The accused have failed to make payment of cheque amount within statutory period of service of legal notice served to him by complainant.
16. In order to prove the case of the complainant, the Manager of the complainant company is examined himself as PW.1 in the form of affidavit and reiterated almost all the contents of complaint and got marked the 14 documents at Ex.P.1 to 14.
17. During the course of proceedings, both the counsels and parties have filed a joint memo. The contents of the joint memo are as follows:
"1. The complainant has filed the case against the accused under section 138 of Negotiable Instrument act and the said case is posted for cross examination of PW.1.
C.C.NO.13250/2019 14
2. The accused and the complainant have settled the above matter with the accused person in their intervention of the advise of the well wishers, out of the court.
3. That the accused and the complainant have agreed to settle the amount of Rs.2,75,000/- (Rupees Two Lakhs Seventy Five Thousand only) out of the cheque amount of Rs.10,85,315/- (Rupees Ten lakhs Eighty Five Thousand three Hundred Fifteen only) following manner.
4) The accused today has paid a sum of Rs.1,00,000 by way of cash to the complainant and further the accused has agreed to pay a sum of Rs.75,000/- (Rupees Seventy Five Thousand only) on or before 31.03.2023 and a sum of Rs.1,00,00/- (Rupees one Lakh only) on or before 30.06.2023 to the complainant and the complainant has agreed to receive the same.
Therefore, the complainant and the accused prays this court may please to pass judgment in the event of default the payment of agreed amount .
18. By filing the above said joint memo the accused has admitted the legally enforceable debt/liability as stated by the complainant in the complaint.
C.C.NO.13250/2019 15
19. Considering the joint memo and submission of learned counsel for the complainant as well as learned counsel for the accused, this court deem it proper to grant time to the accused for repayment of the amount to the complainant. Thus, material available on record clearly discloses that the complainant have complied all the ingredients under section 138 of Negotiable Instrument Act. In view of forgoing discussions, this court is of the opinion that the complainant have established that the accused have committed an offence punishable under section 138 of Negotiable Instrument Act. The joint memo/consent memo filed by the complainant and the accused is sufficient. Accordingly, I answer point No.1 to 4 in the "Affirmative".
20. POINT NO.5 : In view of the reasons stated and discussed on point No.1 to 4, I proceed to pass the following:
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused is hereby convicted for an offence punishable C.C.NO.13250/2019 16 under section 138 of Negotiable Instrument Act and is sentence to pay a fine of Rs.1,75,000/- (Rupees one lakh Seventy Five thousand) only.
The bail bond and surety bond of the accused hereby stands cancelled.
When the said amount is deposited by the accused same shall be paid to the complainant as compensation.
Terms and conditions of the joint memo becomes part and parcel of this order.
In default of payment of the fine amount as agreed upon, the accused shall under simple imprisonment for 6 months.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 08 th day of February 2023) Digitally signed by SOUBHAGYA B SOUBHAGYA BHUSHER B BHUSHER Date:
2023.02.08 17:34:41 +0530 (Soubhagya.B.Bhusher) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE List of witness examined on behalf of the complainant:
PW.1 : Sri.Pavan.G.Patil List of documents marked on behalf of the complainant: Ex.P.1 : Resolution dated: 02.02.2018.
C.C.NO.13250/2019 17 Ex.P.2 : Authorization letter on 09.04.2018. Ex.P.3 : Computerized copy of the ledger account for the period 01.04.2014 to 31.03.2015. Ex.P.3(a) : Relevant Certificate of Ex.P.3. Ex.P.4 : Computerized copy of the ledger account for the period 01.04.2015 to 31.03.2016. Ex.P.4(a) : Relevant Certificate of Ex.P.4. Ex.P.5 : Computerized copy of the ledger account for the period 01.04.2016 to 31.03.2017. Ex.P.5(a) : Relevant Certificate of Ex.P.5. Ex.P.6 : Computerized copy of the ledger account for the period 01.04.2017 to 31.03.2018. Ex.P.6(a) : Relevant Certificate of Ex.P.6. Ex.P.7 : Computerized copy of the ledger account for the period 01.04.2018 to 20.11.2018. Ex.P.7(a) : Relevant Certificate of Ex.P.7.
Ex.P.8 : Cheque. Ex.P.8(a) : Signature of the accused. Ex.P.9 : Bank endorsement. Ex.P.10 : Office copy of the legal notice.
Ex.P.10(a)to10(c): Postal receipts. Ex.P.11 to 13 : Postal Acknowledgments.
Ex.P.14 : Complaint.
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
-Nil-Digitally signed by SOUBHAGYA
SOUBHAGYA B BHUSHER
B BHUSHER Date:
2023.02.08
17:34:49 +0530
XXVIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
C.C.NO.13250/2019
18
08.02.2023 (Judgment pronounced in the Open
Court Vide Separate Sheet)
:ORDER:
Acting under section 255(2) of
Criminal Procedure Code, the accused is hereby convicted for an offence punishable under section 138 of Negotiable Instrument Act and is sentence to pay a fine of Rs.1,75,000/- (Rupees one lakh Seventy Five thousand) only.
The bail bond and surety bond of the accused hereby stands cancelled.
When the said amount is deposited by the accused same shall be paid to the complainant as compensation.
Terms and conditions of the joint memo becomes part and parcel of this order.
C.C.NO.13250/2019 19 In default of payment of the fine amount as agreed upon, the accused shall under simple imprisonment for 6 months.
XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.