Bangalore District Court
Sri. Nataraj vs Firm Address on 13 April, 2023
KABC0C0101782019
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
-: PRESENT :-
M.Vijay, BAL, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED THIS THE 13TH DAY OF APRIL, 2023.
C.C.NO.52879/2019
COMPLAINANT : Sri. Nataraj
S/o Mr. M. Panneer Selvam
Aged about 42 years,
Proprietor of Sree Vinayaka
Enterprises, Having office at
No.57/131, 4th cross, 8th main
road, Horamavu main road,
Ramamurthy Nagar,
Bangalore-560016.
Vs.
ACCUSED : Firm Address:
1. M/s Praveen Agencies
No.15, Anjaneya Temple Street,
Ground Floor, Cubbenpet,
Bangalore-560002.
Represented by its proprietor
Sri. Saithan Singh.
2
C.C.No.52879/2019
Home Address:
2. Sri. Saithan Singh
S/o Mr. Galapath Sing
Aged about 40 years,
Residence of No.23, Sufiur
Rahaman Malik, Firiza Begum
Building, Chowlgali, Cubbenpet,
Bangalore-560002.
J U D G M E N T
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of Negotiable Instrument Act.
2. The factual matrix of the case are as follows:-
The complainant claims to be an authorized distributor of Universal Corporation Ltd., and also doing Wholesale business of Duracell, Everyday batteries as well as Disano Olive Oil in the name and style of Vinayaka Enterprises, during course of his business, the accused a proprietorship firm represented by its proprietor A2 being his regular customer had purchased Duracell batteries on 18.09.2019 vide 3 C.C.No.52879/2019 invoice No.U01419 for an amount of Rs.1,12,323/-, out of that, a sum of Rs.75,000/- had been transferred to his account through NEFT and had a due of Rs.37,323/-, likewise, again the accused purchased Everyday and Duracell batteries from him under invoice No bearing No.U01661 dated 12.10.2018 for sum of Rs.56,549/- in totally, the accused had an outstanding of Rs.93,872/-, for clearance of the same, the accused allegedly issued 2 cheques bearing No.000292 dated 28.10.2018 for sum of Rs.37,323/- and 000291 dated 30.10.2018 for sum of Rs.56,549/- in his favour, with an assurance that, both the cheques would be honored on its presentation.
3. Accordingly, as per the assurance and instruction of the accused, the complainant claims to have presented both the cheques through his banker on 09.11.2018, but, both the cheques got bounced for "funds insufficient", immediately, he approached the accused, but, the accused requested him to present, both the cheques for encashment, accordingly, on 4 C.C.No.52879/2019 02.01.2019 the complainant once again presented both the cheques for encashment, but, both the cheques came to be dishonored for "payment stopped by the drawer" on 03.01.2019, accordingly, he constrained issue demand notice on 10.01.2019, calling upon the accused to pay cheques amount, but, the accused refused to receive the notice, however, it is nothing but deems to have been served, inspite of it service, the accused failed to pay the cheques amount issued towards clearance of invoices amount for having purchase of batteries from him, accordingly, alleged that, accused have committed an o/p/u/s 138 of N.I Act, accordingly, prays to convict the accused in accordance with law.
4. Based on the complaint, the sworn statement affidavit, the documents etc., the court took cognizance of an offense punishable under Sec.138 of N.I. Act by following the guidelines of Apex Court issued in Indian Bank Association case and ordered to 5 C.C.No.52879/2019 be registered a criminal case against the accused for the o/p/u/s. 138 of N.I. Act.
5. In pursuance of summons, the accused appeared through his counsel, he was enlarged on court bail, further, substance of plea was recorded, the accused pleaded not guilty and claims to be tried, further, the complainant in order to prove his case got examined himself as P.W.1 and placed reliance on Ex.P1 to P16. Upon closure of complainant side evidence, the court examined the accused U/s 313 of Cr.P.C, the accused denied the incriminating materials on record, and got examined himself as DW1, and placed reliance on Ex.D1 to D7.
6. Heard both the sides, perused the materials on record, the following points arise for my determination.
6C.C.No.52879/2019
1. Whether the complaint proves beyond all reasonable doubt that, accused have committed an o/p/u/s 138 of Negotiable Instruments Act?"
2. What Order?
7. My findings to the above points are follows;
Point No1: In the Affirmative.
Point No.2: As per final order for forgoing;
R E A S O N S
8. POINT No:1: The accused have denied the issuance of 2 cheques bearing No.000292 dated 28.10.2018 for sum of Rs.37,323/- and 000291 dated 30.10.2018 for sum of Rs.56,549/- infavour of complainant towards clearance of invoices bearing No.U01419 dated 18.09.2018 and U01661 dated 12.10.2018, however, the A2 admitted that, A1 is his proprietorship firm, 7 C.C.No.52879/2019 and he is the proprietor of A1, further, the cheques in question i.e., Ex.P1 and 2 are belongs to his account as well as signatures found thereon is of him, and also not disputed Compliance of Sec.138(a) to (c) of N.I Act, but, the accused denied the existence of alleged liability for sum of Rs.93,872/- as well as supply of batteries to him under invoices referred supra, so, burden on the complainant to prove the supply of batteries and issued o0f Ex.P1 & 2 by the A2 in his favour towards clearance of invoices amount.
9. The complainant in order to prove the supply of materials to the accused, placed reliance on Ex.P13 and 14 as well as statement of account and claimed that, he supplied batteries of various company to accused as per Ex.P13 and 14 for total sum of Rs,1,68,872/- out of that, the accused partially paid sum of Rs.75,000/- to him on 27.09.2018 by way of NEFT and for remaining balance of Rs.93,872/- Ex.P1 and 2 cheques have been issued, but, the cheques 8 C.C.No.52879/2019 initially got bounced for "insufficient funds", and then for "payment stopped by the drawer".
10. Inter alia, the accused denied the very supply of materials and issuance of cheques infavour of the complainant and contended that, complainant had collected the cheques in question from Ransodh Ram i.e., his assistant/worker in his absence and his signed blank cheques have been misused, but, same is denied by the PW1 and the accused not at all denied payment of Rs.75,000/- to complainant on 27.09.2018 through NEFT.
11. Further, the A2 improved his defence in his examination chief that, he kept 4 signed blank cheques at his shop, his caretaker/worker by colluding with many of his suppliers including the complainant herein has misused his cheques without supply of materials, therefore, he lodged private complaint Ex.D1 against his worker, as the holder's of his cheques have filed cheque bounce cases in Ex.D2 to 9 C.C.No.52879/2019 7, accordingly, he is liable to pay the claimed amount, as there was no supply of materials.
12. The learned counsel for the accused argued that, PW1 admitted, he does not have transaction with A2, complainant and assistant of A2 have been colluded each other, accordingly, the accused does not have any liability, on the contrary, the counsel for the complainant argued that, the Hon'ble 34th ACMM has convicted the accused as per Ex.P16, wherein, A2 has taken similar defence in order to escape from the liability, further, the private complaint Ex.D1 filed by the accused subsequent to filing the complaint, in order to avoid payment, accordingly, prays to convict the accused.
13. So, considering the rival contentions, I have carefully scrutinized the materials on record, it clearly reflects that, A2 admitted Ex.P1 and 2 belongs to him, however, he claims to had kept signed blank cheques of him at his shop, that has been issued by 10 C.C.No.52879/2019 his worker/assistant Ransodh Ram and given to the complaint, by colluding each other for their illegal gain in his absentia, but, as held supra, if at all, there was no business dealing with the complainant or there was no supply of materials then, why A2 had transferred Rs.75,000/- to the complainant, that too through NEFT on 27.09.2018, further, there is no explanation from A2, what for he paid said amount.
14. Further, significantly, A2 admits cheques in question and signature found thereon belongs to him, but contended that, same was collected illegally by the complainant from his assistant, however, in the cross examination, this complainant elicited that, A2 had kept his signed cheques at his shop for issuance of the same, to his supplier and he used to pay the amount to his suppliers by way of cheques, further, he admitted that, the complainant is one of his supplier and other his suppliers also filed Ex.D2 to 7 cases against him, however, he contended that, his assistant had issued the cheques to all of his suppliers 11 C.C.No.52879/2019 without his knowledge and without taking delivery of the goods, accordingly, he lodged Ex.D1 private complaint against his assistant, but, A2 firstly failed to prove one Ransodh Ram was his assistant and custody of his cheques with the said Ransodh Ram.
15. Secondly, Ex.D1 private complaint filed subsequent to filing of this case, by alleging that, his assistant has fraudulently issued his cheques by colluding with the complainant, but, Ex.P3 and 4 bank returned memo's discloses that, initially cheques were dishonored for "funds insufficient" and then "payment stopped by the drawer".
16. So, firstly, to believe the defence of the accused that, his assistant has fraudulently issued cheques in question to the complainant, the accused must prove sufficient balance in his account as on the date 11.09.2018 as he claims to had been to his native place Rajasthan to look after his mother, in his abasentia, his assistant had given cheques in question, 12 C.C.No.52879/2019 but, the accused failed to produce his statement of account, to show how much his bank balance as on 11.09.2018 and what for he issued stop payment instruction, even after, knowing the dishonor of the cheques in question for the first time with the remarks funds insufficient, which are crucial materials.
17. Further, it is significant to note that, initially the cheques were dishonored for "funds insufficient", then, secondly, cheques were got dishonored for "payment stopped by the drawer", therefore, as held supra, to believe the defence of the accused that, there was no transaction with the complainant and he did not have liability to the complainant as on 11.09.2018, the complainant must prove sufficient balance in his account, as it is well settled law that, whenever, the cheques dishonored for "payment stopped by the drawer" and accused taken a contention because of non existence of liability, the stop payment instruction has been issued, at this stage, it is worth to note, the decision of Hon'ble 13 C.C.No.52879/2019 Apex Court between M/s MMTC Ltd., and another V/S Medchil Chemicals and Pharma Pvt. Ltd., held that, "even though the cheque dishonored by reason of stop payment instruction an offence under section 138 could still be made out. It is held that, the presumption U/S 139 is attracted in such a case also the authority shows that, even in the cheque is dishonored by reason of stop payment instruction by virtue Sec.139 the court as to presume that, the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Off- course this is a rebuttable presumption. The accused can thus show that the stop payment instruction were not issued because of insufficiency or paucity of funds if the accused shows that in his account there was sufficient funds to clear the amount of cheque at the time of presentation the cheque for encashment at the drawer bank and that stop payment notice had been issued because of other valid causes including that there was no existing that or liability had been issued because of other valid cause including that there was no existing debt or liability at the time of presentation of cheque for 14 C.C.No.52879/2019 encashment, then an o/p/u/s 138 would not be made out".
18. But, the accused not produced the statement of account, even Ex.P3 and 4 bank returned memo's clearly discloses that, there was no sufficient balance in the account of the accused, as such, his defence cannot be acceptable.
19. That apart, there is no explanation from the side of the accused about partial payment of invoices amount of Rs.75,000/- on 27.09.2018, if at all he does not have due of invoice amount, then, why, he paid sum of Rs.75,000/- to the complainant by way of NEFT not explained, therefore, the conduct of the accused clearly discloses that, similar defence had been taken in Ex.P16, but, the Hon'ble 34th ACMM has convicted the accused and admittedly, the accused only produced Ex.D2 to 7 the copies of private complaint filed by other suppliers, clearly discloses that, defence of the accused is an after thought, 15 C.C.No.52879/2019 therefore, the accused failed to disprove the existence of claimed liability, as the accused does not denied the partial payment of Rs.75,000/- to the complainant on 27.09.2019 by way of NEFT, as such, nothing has brought on record, to disprove the claimed liability, hence, failed to establish the defence that, it does not have any liability to the complainant, as such, as per the statement of account produced by the complainant, the accused had purchased Batteries for total sum of Rs.1,68,872/- under 2 invoices bearing No.U01419 dated 18.09.2018 for sum of Rs.1,01,323/- and another bearing N.U01661 dated 12.10.2018 fro sum of Rs.56,549/-, out of that, the accused partially paid sum of Rs.75,000/- by NEFT to the complainant, and remaining amount of Rs.93,872/- was the outstanding as on the dates of cheque, accordingly, the complainant undoubtedly proved the liability of the accused.
20. That apart, the accused admitted Ex.P1 and 2 as well as signature belongs to him, it further strengthen 16 C.C.No.52879/2019 the claim of the complainant about existence of claimed liability, as the presumption U/S 118(a) r/w 139 of N.I Act is available to complainant, once, he admitted the cheques and signature found on the cheques are belongs to him, therefore, apart from the partial payment of Rs.75,000/- as well as invoices, the existence of liability has been undoubtedly proved by the complainant, by the aid of statutory presumption, however, the presumption envisaged U/S 139 r/w 118(a) of N.I Act is rebuttable in nature, therefore, the onus is on the accused to rebut the same, but, the accused except producing copy of the private complainant filed against his worker, nothings has brought on record to prove the alleged nexus between the complainant and his Ex.Assistant.
21. Further, it is significant to note that, the accused has filed complaint against his worker, but not against the complainant herein to show that, the complainant and his worker/assistant were colluded each other, in absence of that, it is crystal clear that, the accused 17 C.C.No.52879/2019 has filed Ex.D1 private complaint subsequent to filing of this complaint and admittedly there was no sufficient balance in his account on 11.09.2018, since, it is relevant, because, the accused contended that, he was at Rajasthan, at that time to look after his mother, therefore, the arguments of learned counsel for the complainant that, the accused in order to avoid payment has intentionally issued "stop payment instruction" and filed false complaint, subsequent to filing of this case cannot be ruled out, accordingly, the accused failed to disprove the existence of claimed liability and he does not have drawn the cheques in question infavour of the complainant for balance invoices amount.
22. Hence, the accused failed to brought out probable materials to rebut the presumption drawn infavour of the complainant as well as what for he paid Rs.75,000/- to the complainant by way of NEFT on 27.09.2018, if at all he did not have transaction and outstanding invoice amount Rs.1,68,872/-, 18 C.C.No.52879/2019 accordingly, the complainant has undoubtedly proved the partial payment of Rs.75,000/- by NEFT towards total invoice's amount of Rs.1,68,8472/- and issuance of Ex.P1 and 2 cheques by the accused in his favour for outstanding amount of Rs.93,872/- without maintaining sufficient balance and failed to pay the cheques amount within stipulated time, even after demand made through legal notice, as such, the accused are hereby found guilty of an o/p/u/s 138 of N.I Act, accordingly, the A1 and 2 hereby convicted for an o/p/u/s 138 of N.I Act.
23. So, far as sentence and compensation is concern, an o/p/u/s.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, it clearly reveals that, the claimed transaction is commercial transaction, the cheques issued towards clearance of invoices amount, therefore, considering the nature of transaction, duration of pendency, litigation expenses, 19 C.C.No.52879/2019 I am of the opinion that, if sentence of fine of Rs.1,25,000/- is imposed that would meet the ends of justice, accordingly, the A1 and 2 are hereby sentenced to pay a fine of Rs.1,25,000/-, out of that, the complainant is entitled for sum of Rs.1,20,000/-, 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 A2 shall under go simple imprisonment for a period of 6 months. Accordingly, I answered the above point in "Affirmative".
24. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
O R D E R Acting under section 255(2) of Criminal Procedure Code, the accused is convicted for an offence punishable U/s 138 of Negotiable Instrument Act.
20C.C.No.52879/2019 The A1 and 2 are hereby sentenced to pay a fine of Rs.1,25,000/-, (Rupees one lakh twenty five thousand only) in default, the A2 Saithan Sing shall undergo simple imprisonment for a period of six months.
Out of the fine amount received, Rs.5,000/-, is to be appropriated to the State and by way of compensation as per the provision u/Sec.357(1) of Cr.P.C., the complainant is entitled for Rs.,1,20,000/-.
The bail bond and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgment to the accused.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 13th day of April, 2023) (M.Vijay), XXXIII ACMM, BENGALURU.
21C.C.No.52879/2019 A N N E X U R E
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri. Nataraj
2. Documents marked on behalf of complainant:
Ex.P.1 & 2 : Original cheques Ex.P.1(a) & 2(a) : Signatures of the accused Ex.P.3 to 6 : Bank return memo's Ex.P.7 : Office copy of the legal notice Ex.P.8 : 4 Postal receipts Ex.P.9 to 12 : Returned postal covers Ex.P.9(a) to 12(a) : Returned postal covers opened in the
open court and notice therein marked Ex.P15 : Bank statement Ex.P16 & 17 : Bank statement
3. Witnesses examined on behalf of Accused:
DW1 : Saithan Sing
4. Documents marked on behalf of Accused:
Ex.D1 : C/c of order sheet, complaint copy, list of document in PCR 649/2020.
Ex.D2 : C/c of order sheet, copy of complaint along with affidavit, list of documents in PCR 12263/2020.22
C.C.No.52879/2019 Ex.D3 : C/c of order sheet, complaint copy in C.C. 566/2019.
Ex.D4 : C/c of order sheet, complaint copy in C.C. 567/2019.
Ex.D5 : C/c of order sheet, complaint copy in C.C.12956/2019 Ex.D6 : C/c of order sheet, complaint copy in C.C. 20403/2019.
Ex.D7 : C/c of order sheet, complaint copy, in C.C. 50503/2019.Digitally signed by M VIJAY
M VIJAY Date: 2023.04.13 17:04:41
+0530
(M.Vijay),
XXXIII ACMM, BENGALURU.