Bangalore District Court
Company And Accused Accepted To Design vs Pleaded Not Guilty And Claims To Be Tried on 20 February, 2020
1 CC.No.29924 /2019
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITON MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:- Sri. ABDUL RAHIM HUSSAIN SHAIKH
B.Sc, B.Ed, LLB(Spl)
XXVIII A.C.M.M
Bengaluru City.
Dated this the 20th day of February, 2020
CC.No.29924/2019
JUDGMENT
1. Sl.No. of the case : C.C.No.29924/2019
2. The date of commence of evidence: 19.12.2019
3. The date of Institution : 16.11.2019
4. Name of the Complainant : MYN Travels Private Limited Having its Registered office at No.G.205, West Minister Building, No.13, Cunnigham road, Bangalore-560052 Rep by its Director, Yuvaraj Channagirisrinivasan, S/o late Srinivasan Aged 49 years.
5. Name of the Accused : 1. WEBAXYR IT CONSULTING (OPC) Private Limited 2 CC.No.29924 /2019 A company registered under Companies Act, 2013 Having its registered office at No.42/1, 4th A cross, Kanaka Nagar, R.T Nagar, Bangalore-560 032.
Also having office at No.527, 1st floor, 4th cross, CMR road, 2nd block, HRBR Layout, Kalyan Nagar, Bengaluru-560 043 Rep by its Directors.
2. BHARANIDHARAN MOHANRAJ Director, R/at No.42/1, 4th A cross, Kanaka Nagar, RT Nagar, Bangalore-560 032.
3.THYAGARAJAN JAGANATHAN Director, R/at No.3/204, Kottapuliyanur Guruparahalli, Kurubarahalli, Dharmapuri- 635302.
6. The offence complained of or proved : U/s.138 of N.I. Act
7. Plea of the accused on his examination : Pleaded not guilty 8. Final Order : Accused No.2 and 3 are convicted
9. Date of such order : 20.02.2020 3 CC.No.29924 /2019 JUDGMENT
1. This case has been registered against the accused on the basis of the complaint filed by the complainant u/s 200 of Cr.P.C. for the offence punishable u/s 138 and 142 of Negotiable Instrument Act.
2. The gist of the complainant's case is that:
The accused claims that the accused is a software development company, specialized in IT services involved in delivering cloud, web-based software, application, infrastructure, compliance, network and surety solutions. The accused company and its directors accused No.2 and 3 approached the complainant for rendering its service for designing a website for complainant company and accused accepted to design the website as per complainant company's requirement and the accused entered into an agreement with complainant company on 16.08.2018. Accepting the 4 CC.No.29924 /2019 proposal, complainant paid Rs.2,32,000/- but accused failed to design the website of complainant company and when accused expressed their incapability to design the website for complainant company, the complainant called upon the accused to return the money paid by complainant company to the accused. Accused agreed to cancel the agreement and transferred a sum of Rs.30,000/- towards part payment in the month of April, 2019 and after frequent follows ups accused given a cheque bearing No.000038 dated:29.07.2019 for a sum of Rs.2,00,000/- drawn on DBS Bank, Ulsoor road branch, Bangalore toward the payment of the amount due to the complainant. When the complainant presented the said cheque for encashment through his banker HDFC Bank, Richmond road branch, Bengaluru was returned dishonoured with endorsement for the reasons 'Payment stopped by the Drawer' on 30.07.2019. Accordingly, the complainant got issued a legal notice on 07.08.2019 5 CC.No.29924 /2019 calling upon the accused to pay the amount covered under the cheque within 15 days from the date of receipt of this legal notice. It is contended that in spite of service of notice to the accused through RPAD, accused failed to pay the cheque amount. Accordingly, the complainant has filed the compliant against the accused for the offence punishable u/s 138 of N.I. Act on 16.11.2019.
3. In pursuance of the summons, the accused has appeared through Counsel and got enlarged on bail by executing necessary documents. The copy of the complaint was furnished to the accused, as required under law. As there was sufficient material, plea was recorded against the accused on 11.02.2020 and explained to the accused in his vernacular, for which the accused pleaded not guilty and claims to be tried.
4. In order to prove the case, the Director of the complainant company Sri. Yuvaraj Channagirisrinivasan 6 CC.No.29924 /2019 S/o Late Srinivasan., examined as PW1 and got marked Ex.P1 to P15 and closed the side. Accused neither examined nor got marked any documents on his behalf.
5. When the matter posted for cross of PW1, accused and complainant jointly submitted memo stating that accused has agreed pay a sum of Rs.2,00,000/- as full and final settlement and towards the payment of the said amount accused agreed to pay in 4 monthly installments as under:-
1. 15.04.2020 Rs.50,000/-
2. 10.05.2020 Rs.50,000/-
3. 10.06.2020 Rs.50,000/-
4. 10.07.2020 Rs.50,000/-
6. Both the accused and the complainant along with their counsels prayed to pass the judgment to that effect on the joint memo. In the instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant. 7 CC.No.29924 /2019
7. Heard the arguments and perused the material placed on record.
8. On the basis of the above facts, the following points arise for my consideration:
1. Whether the complainant proves that the accused towards discharge of legal recoverable debt issued cheque bearing No.000038 dt:29.07.2019 for Rs.2,00,000/- drawn on DBS Bank Ltd, Bengaluru, in favour of the complainant, on presentation for encashment it was returned as 'Payment stopped by Drawer' and inspite of receipt of legal notice, the accused failed to pay the cheque amount within the statutory period and thereby the accused has committed an offence punishable u/s 138 of N.I. Act?
2. What order?
9. My findings on the above points are as under :
Point No.1: In the Affirmative 8 CC.No.29924 /2019 Point No.2: As per final order, for the following:
REASONS
10. Point No.1:- In order to prove the case, Mr.Yuvaraj Channagirisrinivasan S/o Late Srinivasan, Director of the complainant Company examined as PW1 filed affidavit in lieu of examination-in-chief and has reiterated the allegations made in the complaint and oath and got marked documents Ex.P1 to Ex.P15. Ex.P1 is the incorporation certificate, Ex.P1(a) is the certificate u/s 65(b) of Indian Evidence Act, Ex.P2 is the board resolution, Ex.P3 is the agreement, Ex.P4 to 6 are the statements, Ex.P7 is the Cheque, Ex.P7(a) is the Signature of accused, Ex.P8 is the Returned Bank Memo, Ex.P9 is the Copy of Legal Notice, Ex.P9(a) & 8(b) are the Postal Receipts, Ex.P10 & 11 are the legal notice found in the returned postal cover, Ex.P10(a) & 10(b) are the covers, Ex.P12 is the track consignment, Ex.P13 is the 9 CC.No.29924 /2019 speed post Acknowledgement, Ex.P14 is the printed copy of the details (company Master Data) of the accused, Ex.P15 is the compliant. In the instant case PW1 was not cross examined nor any cogent evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
11. As noted supra when the matter posted for cross- examination of PW1, complainant and accused jointly submitted Memo stating that accused has agreed pay a sum of Rs.2,00,000/- as full and final settlement and towards the payment of the said amount accused agreed to pay in 4 monthly installments as under:-
1. 15.04.2020 Rs.50,000/-
2. 10.05.2020 Rs.50,000/-
3. 10.06.2020 Rs.50,000/-
4. 10.07.2020 Rs.50,000/-
12. It is the definite case of the complainant that accused is a software development company, specialized 10 CC.No.29924 /2019 in IT services involved in delivering cloud, web-based software, application, infrastructure, compliance, network and surety solutions. The accused company and its directors accused No.2 and 3 approached the complainant for rendering its service for designing a website for complainant company and accused accepted to design the website as per complainant company's requirement and the accused entered into an agreement with complainant company on 16.08.2018. Accepting the proposal, complainant paid Rs.2,32,000/- but accused failed to design the website of complainant company and when accused expressed their incapability to design the website for complainant company, the complainant called upon the accused to return the money paid by complainant company to the accused. Accused agreed to cancel the agreement and transferred a sum of Rs.30,000/- towards part payment in the month of April, 2019 and after frequent follows ups 11 CC.No.29924 /2019 accused given a cheque bearing No.000038 dated:29.07.2019 for a sum of Rs.2,00,000/- drawn on DBS Bank, Ulsoor road branch, Bangalore toward the payment of the amount due to the complainant. When the complainant presented the said cheque for encashment through his banker HDFC Bank, Richmond road branch, Bengaluru was returned dishonoured with endorsement for the reasons 'Payment stopped by the Drawer' on 30.07.2019. Accordingly, the complainant got issued a legal notice on 07.08.2019 calling upon the accused to pay the amount covered under the cheque within 15 days from the date of receipt of this legal notice. It is contended that in spite of service of notice to the accused through RPAD, accused failed to pay the cheque amount. Accordingly, the complainant has filed the compliant against the accused for the offence punishable u/s 138 of N.I. Act on 16.11.2019. In the instant case PW1 was not cross examined nor any cogent 12 CC.No.29924 /2019 evidence and relevant documents had been produced by the accused to disprove the case of the complainant.
13. In this case the complainant PW1 had deposed that accused had issued cheque Ex.P7 with his signature Ex.P7(a) in discharge of his legally enforceable debt. It is pertinent to note that PW1 is not cross examined by the accused counsel disputing the signature Ex.P.7(a) in the disputed cheque nor the accused had lead any evidence to disprove the fact that the said signature Ex.P7(a) does not belong to him. In view of the same, the signature of the accused Ex.P7(a) in the disputed cheques Ex.P7 remains undisputed and unchallenged. It can be presume that the accused had admitted his signatures on the disputed cheque.
14. At this juncture I would like discuss the ruling reported in AIR 2018 Hon'ble Supreme Court 3601 (T.P Murugan (Dead) Thr.Lrs.V Bojan AND Posa Nandhi 13 CC.No.29924 /2019 Rep.Thr, POA Holder, T.P Murugan v. Bojan) In this ruling at para-8 the Hon'ble Supreme Court has laid down the dictum of law that u/s 139 of the N.I Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability by referring to K.N.Beena v/s Muniyappan and Another, (2001) 8 SCC 458, para-6 and Rangappa v/s Shrimohan (2010) 11 SCC 411, para 26 . It is further held that the presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan.
In the present case the accused has failed to produce any credible evidence to rebut the statutory presumption in the light of discussion made above. The complainant has proved the case by overwhelming 14 CC.No.29924 /2019 evidence to establish that the cheque/Ex.P7 was issued by the accused towards discharge of an existing liability and legally enforceable debt.
15. In the instant case PW1 deposed that he had issued a legal notice Ex.P9 the accused requesting for payment of the outstanding balance through RPAD. On perusal of the document Ex.P9/legal notice, Ex.P9(a) & 9(b)postal receipts and Ex.P12 & 13 track consignment and speed post acknowledgment it is crystal clear that the notice was duly served to the accused and inspite of the said notice accused has not paid the amount nor replied to the notice due to which service of notice to the accused remained undisputed and unchallenged.
16. At this juncture in the light of principle laid down by the Hon'ble Apex Court of India in a decision reported in 2007 (3) Crimes 120 (SC) (C.C. Alavi Haji V/s Palapetty Muhammed & Anr), it is crystal clear that if 15 CC.No.29924 /2019 notice sent through RPAD by correctly addressing drawer of the cheque, mandatory requirement of issue of notice in terms of (b) of proviso to u/s 138 of N.I. Act stands complied with. The evidence on record clearly establishes that the complainant sent the notice to the accused to the correct address through RPAD and the said notice is duly served to the accused as per the speed post Acknowledgment Ex.P13. Hence, sending legal notice to the correct address of the accused is in compliance with u/s 138(b) of N.I. Act as the dictum of law laid down in the above case. In the instant case accused neither issued reply nor paid cheque amount even after receipt of summons for the best reasons known to him. As noted supra when the matter posted for cross of PW1, complainant & accused jointly submitted Joint Memo stating that accused has agreed to pay a sum of Rs.2,00,000/- as full and final settlement and towards the payment of the said amount accused 16 CC.No.29924 /2019 agreed to pay in 4 monthly installments as under:-
1. 15.04.2020 Rs.50,000/-
2. 10.05.2020 Rs.50,000/-
3. 10.06.2020 Rs.50,000/-
4. 10.07.2020 Rs.50,000/-
In view of submission by both complainant and accused that they have no objections for the Court to pass the judgment in accordance to the terms mentioned in the Joint Memo the case is disposed accordingly.
17. In view of the same it is clearly established that accused has admitting the transactions and issuing of the cheque in discharge of his liability. Hence, in the considered view of this court, the complainant has proved that the accused has committed an offence punishable u/s 138 of N.I. Act. Hence, I answer the above point No.1 in the Affirmative.
18. Point No.2:- Having regard to the facts and circumstances, I proceed to pass the following: 17 CC.No.29924 /2019
ORDER The accused No.1 to 3 are found guilty for the offence punishable u/s 138 of N.I. Act. Acting u/s 264 of Cr.P.C. the accused No.2 and 3 are convicted and sentenced to pay fine of Rs.500/-, in default shall undergo simple imprisonment for 15 days.
Acting u/s 357(3) of Cr.P.C. as per the agreement between the parties in the joint memo the accused No.2 and 3 are directed to pay a sum of Rs.2,00,000/- in 4 monthly installments as under:-
1. 15.04.2020 Rs.50,000/-
2. 10.05.2020 Rs.50,000/-
3. 10.06.2020 Rs.50,000/-
4. 10.07.2020 Rs.50,000/-
In default undergo simple imprisonment of four months.
The joint memo shall be the part and parcel of this order.
The bail bond executed by the accused No.2 and 3 18 CC.No.29924 /2019 shall stand cancelled.
Supply free copy of the judgment to the accused No.2 and 3.
(Dictated to Stenographer directly on the Computer, taken print out corrected, signed by me and then pronounced in the open court this the 20th day of February, 2020).
(ABDUL RAHIM HUSSAIN SHAIKH) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:-
PW1 : Sri. Yuvaraj Chennagirisrinivasan LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:-
Nil LIST OF DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:-
Ex.P1 : Incorporation certificate
Ex.P1(a) : Certificate u/s 65(b)of Indian
Evidence Act
Ex.P2 : Board resolution
Ex.P3 : Agreement
Ex.P4to6 : Statements
Ex.P7 : Cheque
19 CC.No.29924 /2019
Ex.P7(a) : Signature of accused
Ex.P8 : Returned Bank Memo
Ex.P9 : Copy of Legal Notice
Ex.P9(a)(b) : Postal Receipts
Ex.P10&11 : Legal notice found in the
returned postal covers
Ex.P12 : Track consignment
Ex.P13 : Speed post Acknowledgement
Ex.P14 : Master Data of accused company
Ex.P15 : Complaint
LIST OF DOCUMENTS MARKED ON BEHALF OF THE
DEFENCE:-
Nil
XXVIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
20 CC.No.29924 /2019
Judgment pronounced in the open Court vide separate order.
ORDER The accused No.1 to 3 are found guilty for the offence punishable u/s 138 of N.I. Act.
Acting u/s 264 of Cr.P.C. the accused No.2 and 3 are convicted and sentenced to pay fine of Rs.500/-, in default shall undergo simple imprisonment for 15 days.
Acting u/s 357(3) of Cr.P.C. as per the agreement between the parties in the joint memo the accused No.2 and 3 are directed to pay a sum of Rs.2,00,000/- in 4 monthly installments as under:-
1. 15.04.2020 Rs.50,000/-
2. 10.05.2020 Rs.50,000/-
3. 10.06.2020 Rs.50,000/-
4. 10.07.2020 Rs.50,000/-
In default undergo simple imprisonment of two months.
The joint memo shall be the part and parcel of this order.
The bail bond executed by the accused 21 CC.No.29924 /2019 No.2 and 3 shall stand cancelled.
Supply free copy of the judgment to the accused No.2 and 3.
XXVIII A.C.C.M, Bangaluru.