Bangalore District Court
B Mohan Kumar vs Shree Ji Agro Food Products Industries on 22 July, 2024
SCCH-2 1 C.C.No.3662/2020
KABC020177002020
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL
CAUSES AND ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY (SCCH2).
C.C.NO.3662/2020
Present : Sri. H.P. Mohan Kumar, B.Sc.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACMM, Bengaluru.
Dated: On this the 22nd day of July, 2024.
Complainant : B. Mohan Kumar,
S/o K.V. Balakrishnan,
Aged about 51 years,
Proprietor of
M/s Zeus India Enterprises,
No.17, 4th Cross,
Lakeshore Garden,
Thindlu, Vidyaranyapura Post,
Bangalore560 097.
(By Sri. R.R., Advocate)
- Vs -
Accused 1. Shree Ji Agro Food Products Industries,
Regd. Office. 512,
SCCH-2 2 C.C.No.3662/2020
Ahata Raj Kishor Jain,
Kalka, Haryana133 302.
Represented by Managing Partner,
And also at:
Works at No. KK15, HSIIDC,
Kalka,
Haryana133302.
2. Mr. Sudhir Guptha,
Managing Partner of
Shree Ji Agro Food Products Industries,
Regd. Office. 512,
Ahata Raj Kishor Jain,
Aged about 55 years,
Kalka, Haryana133 302.
(By Sri. G.R., Advocate)
:: J U D G M E N T ::
The complainant has filed the present complaint U/Sec.200 of Cr.P.C., alleging that the accused has committed the offence punishable U/Sec.138 of Negotiable Instruments Act (herein after referred as N.I.Act).
2. The case of the complainant in brief is as follows: The complainant is the proprietorship trading firm and it is operated the business for supply of all types of processed fruit pulp and concentrates packed in cans and drums to various SCCH-2 3 C.C.No.3662/2020 fruit drink manufacturers and wholesalers in India. The accused No.1 is the partnership firm and accused No.2 is the Managing Partner of accused No.1. As per the purchase order placed by the accused, the complainant has supplied Totapuri Mango Pulp (Natural) and Alphonso Mango Pulp (Natural) etc., from 2018 to the accused firm on credit basis. The accused have assured to pay the amount within thirty to fortyfive days from the date of each purchase and the accused No.2 also agreed to pay interest at appropriate rate on the delayed payment after the due date of each purchase. The complainant had supplied the aforesaid materials as per three invoices i.e., invoice No.74, dated:11.01.2019, invoice No.82, dated:20.02.2019 and invoice No.101, dated:04.05.2019. The accused No.2 on behalf of accused No.1 has acknowledged the delivery of materials as per aforesaid invoices. The complainant has sent several email correspondence and messages to the accused to pay the due amount with interest for the delayed payment. The accused has failed to pay balance amount of Rs.11,57,908/ within the stipulated period. The complainant has calculated the interest on delayed payment as per the agreed rate of interest. On several requests made by the complainant, accused No.2 has issued two cheques bearing No.099353 dated:22.09.2019 for Rs.6,00,000/ and cheque bearing No.099354, dated:02.10.2019 for Rs.5,57,908/ in total SCCH-2 4 C.C.No.3662/2020 Rs.11,57,908/, both the cheques drawn on Corporation Bank, Kalka Branch, Panchakula in favour of the complainant.
As per the instructions of the accused No.2, the complainant has presented the aforesaid cheque No.099353 on 17.10.2019 and cheque No.099354 on 11.10.2019 through his banker Bank of India, Sahakarnagar Branch, Bengaluru for encashment. The said cheques were returned unpaid on 18.10.2019 and 14.10.2019 respectively with an endorsement stating as "funds insufficient". The complainant demanded for payment of amount, for which the accused No.2 has agreed to pay the amount within fifteen days, but failed to do so. Thereafter, the complainant has issued a legal notices through RPAD on 07.11.2019 to the business place of the accused and the said notices were returned with postal share "left the address returned to sender" and unserved RPAD covers return on 18.11.2019. The notices send through email and whatsApp were duly received by the accused on 17.11.2019. In response to the messages send by the complainant, the accused No.2 has send message on 18.11.2019 stating that, "you have filed a case against us so we will discuss it in court" and on 09.12.2019, he had send message that, "please wait we are trying our best effort but till today we could not get any funds. Still trying to arrange". Despite due service of notice, accused have not paid SCCH-2 5 C.C.No.3662/2020 the amount covered under the cheques. Hence, cause of action arose to file the complaint.
3. The cognizance was taken for the offence punishable U/Sec.138 of N.I.Act. After filing of the complaint, the sworn statement of the complainant was recorded and it primafacie found that the accused committed the offence punishable U/Sec.138 of N.I.Act. Hence, criminal case was registered and the summons was issued to the accused.
4. In response to the summons, the accused No.2 appeared through his counsel and thereafter plea was recorded. The accused No.2 denied the accusation leveled against him, claimed to be tried and stated that he has defence to make. Further the statement of the accused No.2 as contemplated U/Sec.313 of Cr.P.C., was recorded. The accused No.2 denied the incriminating evidence appeared against him in the evidence of complainant and submitted that he has defence evidence.
5. The Hon'ble Apex Court of India in Indian Bank Association and Others vs Union Bank of India and Another reported in AIR 2014 SC 2528, held that "Sworn Statement of the complainant has to be treated as examination in chief". In instant case, the proprietor of the complainant got examined himself as PW1 and produced as many as 34 documents which SCCH-2 6 C.C.No.3662/2020 have marked as Ex.P.1 to Ex.P.28, Ex.P.5(a), Ex.P.5(b), Ex.P.5(c), Ex.P.6(a), Ex.P.7(a) and Ex.P.8(a). Thereafter, he was subject to the process of crossexamination from the side of accused. Accused has not adduced evidence.
6. Heard arguments of complainant side. Inspite of sufficient opportunity, the counsel for the accused has not addressed his arguments. Perused the materials available on record.
7. Now the points that arise for consideration of this Court are as hereunder:
1. Whether the complainant has proved that the accused has committed the offence punishable U/Sec.138 of N.I.Act?
2. What Order?
8. The findings of this Court to the abovereferred points are as follows:
Point No.1: In the Affirmative.
Point No.2: As per final order,
for the following:
REASONS
9. POINT No.1: In order to prove the case of the complainant, the proprietor of the complainant examined himself as P.W.1 by SCCH-2 7 C.C.No.3662/2020 filing affidavit in support of his oral examinationinchief. In the affidavit P.W.1 has reiterated the complaint averments in verbatim. Hence, this Court need not to recapitulate the same once again at this juncture. In support of his oral testimony, P.W.1 has marked documents at Ex.P.1 to Ex.P.28 and Ex.P.5(a), Ex.P.5(b), Ex.P.5(c), Ex.P.6(a), Ex.P.7(a) and Ex.P.8(a).
P.W.1 was subject to the process of crossexamination from the side of accused. The accused has not adduced evidence.
10. Now itself it is appropriate to see the documents marked as Ex.P. series.
Ex.PSeries.
Ex.P.1 and Ex.P.2 are the cheques in question. Ex.P.1(a) and Ex.P.2(a) are the signatures of accused No.2. Ex.P.3 and Ex.P.4 are the endorsements. Ex.P.5 is the office copy of the legal notice dated:07.11.2019. Ex.P.5(a), Ex.P.5(b) and Ex.P.5(c) are the RPAD receipts. Ex.P.6, Ex.P.7, Ex.P.8 are the unserved postal covers. Ex.P.6(a), Ex.P.7(a) and Ex.P.8(a) are the returned legal notices. Ex.P.9 is the G.S.T. Registration Certificate. Ex.P.10, Ex.P.11 and Ex.P.12 are the 3 purchase orders. Ex.P.13, Ex.P.14 and Ex.P.15 are the 3 Invoices. Ex.P.16 is the Leger Account Statement, Ex.P.17 to Ex.P.20 are the 4 email printouts. Ex.P.21 to Ex.P.23 are the 3 WhatsApp Message printouts. Ex.P.24 is the Certificate under Sec.65B of Indian SCCH-2 8 C.C.No.3662/2020 Evidence Act. Ex.P.25 to Ex.P.27 are the 3 Goods and Service Tax Invoices. Ex.P.28 is the certificate under Sec.65B of Indian Evidence Act.
11. Before going to discuss the main aspect, it is worth to reproduce the provisions of Sec.138 and 139 of N.I.Act, the same as hereunder:
138. Dishonour of cheque for insufficiency, etc., of funds in the account: Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be SCCH-2 9 C.C.No.3662/2020 punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of Six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (The period of 6 months has been reduced to 3 months, vide R.B.I. notification No.RBI/201112/251,DBOD.AML BC No.47/14.01.001/201112, dated:4th November 2011 (w.e.f.
01.04.2012))
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and SCCH-2 10 C.C.No.3662/2020
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purposes of the section, "debt or other liability" means a legally enforceable debt or other liability.
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.
12. At this juncture it is worth to refer the decision of the Hon'ble Apex Court reported in AIR 2010 S.C. 1898, between Rangappa V/s Mohan wherein their lordships have observed at para 26 as hereunder:
"No doubt that there is a initial presumption which favours the complainant".SCCH-2 11 C.C.No.3662/2020
13. It is germane to note that the proceedings U/Sec.138 of N.I.Act is an exception to the general principle that the accused is presumed to be innocent until the charge leveled against him is proved beyond reasonable doubt. In the proceedings initiated U/Sec.138 of the N.I.Act proof of beyond reasonable doubt is subject to the presumption envisaged under Sec.139 of the N.I.Act. Once the requirement of Sec.138 of the N.I.Act is fulfilled, then it has to be presumed that the cheque was issued in discharge of legally recoverable debt or liability. The presumption envisaged under Sec.139 of N.I.Act is mandatory presumption and it has to be raised in every cheque bounce cases.
14. Now, time has come to see whether the complainant has established the ingredients of Sec.138 of Negotiable Instruments Act or not?. In the instant case, during the course of cross examination of P.W.1, learned counsel for the accused has suggested that, there is no signatures of accused No.2 in Ex.P.1 and Ex.P.2. It is relevant to note that, Ex.P.1 and Ex.P.2 were presented for encashment within the stipulated period. As per Ex.P.3 and Ex.P.4, the Bank has issued the endorsement stating that, "funds insufficient". In other words bank has not issued endorsement with reasons as drawer signature differs. Therefore, it is crystal clear that, signatures found in Ex.P.1 and Ex.P.2 are pertaining to the accused No.2. Apart from that, there is no SCCH-2 12 C.C.No.3662/2020 serious dispute with regard to cheques are not pertaining to 1st accused. As per Ex.P.5, the complainant has issued the legal notice on 07.11.2019. The said legal notice was posted on 07.11.2019 itself. As per Ex.P.3 and Ex.P.4, it appears to this court that, the complainant has presented the cheques for encashment within the stipulated period. Likewise, the complainant has issued the legal notice within 30 days from the date of endorsement.
15. Now the question before this Court is whether the complainant has issued the legal notice in accordance with law or not?. The notice issued by the complainant returned with shara as "addressee left". Though P.W.1 was crossexamined at length, there is no suggestion regarding the addresses mentioned in Ex.P.5 are not pertaining to the accused persons. Therefore, it can be inferred that, the service of notice amounts to deemed service. It is settled position of law that, the initial presumption which favours the complainant. As per Sec. 118 of Negotiable Instruments Act, it is crystal clear that, it shall be presumed that every Negotiable Instrument was made or drawn for consideration. Likewise, as per sec.139 of Negotiable Instruments Act, it is crystal clear that, unless the contrary is proved, it shall be presumed that, the holder of the cheque received the cheque of the nature referred in Sec.138 of N.I. Act for the discharge, in SCCH-2 13 C.C.No.3662/2020 whole or in part, of any debt or other liability. Therefore, with the help of Ex.P1 to Ex.P.5, 5(a) to 5(c), Ex.P.6 to Ex.P.8 and Ex.P.6(a) to Ex.P.8(a), and also with the help of presumptions envisaged U/Sec.118 and 139 of N.I. Act,, the complainant has fulfilled the ingredients of Sec.138 of Negotiable Instruments Act.
16. Now, it is worth to refer the decision of the Hon'ble Apex Court between Hiten P Dalal V/s Brathindranath Manarji reported in 2001(6) SCC 16, wherein the Hon'ble Apex Court observed that, "Under Sec.138 of Negotiable Instruments Act, the complainant is not required to establish either the legality or enforceability of the debt or liability since he can avail the benefit of presumption U/Sec.118 and Sec.139 of N.I. Act in his favour". Further, it is also settled position of law that, the presumption available U/Sec. 138 of N.I Act is a rebuttable presumption. Further, to rebut the said presumption the accused need not to enter into the witness box. However, the accused can establish his probable defence by creating a doubt about the existence of legally enforceable debt or liability.
17. Further, it is also settled position of law that, the standard of proof of rebutting the presumption is that of preponderance of probabilities. At this juncture, again it is worth to refer the SCCH-2 14 C.C.No.3662/2020 decision of the Hon'ble Apex Court in Rangappa Vs. Sri. Mohan has observed that, "the standard of proof to rebut the presumption is that one of preponderance of probabilities". It is also settled position of law that, if the accused succeeded in rebutting the presumption then the burden shifts back to the complainant. It is also settled position of law that, "it is immaterial that, the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque otherwise valid, within the provisions of Sec.138 would be attracted".
18. With these backdrop, it is appropriate to analyze the case on hand. According to the complainant, the accused purchased Totapuri Mango Pulp and Alphonso Mango Pulp. In this regard, the complainant has produced the purchase order as well as invoices. Towards the discharge of the said liability, Ex.P.1 and Ex.P.2 have been issued. When the same were presented for encashment, same got bounced.
19. Now, the next and important aspect is whether the accused has rebutted the presumption or not?. On careful perusal of crossexamination of P.W.1, it can be inferred that, the accused has taken a contention that, the complainant has not SCCH-2 15 C.C.No.3662/2020 supplied the materials and one Sri. Hari Om Goyal and complainant conspired with each other, forged the signatures and misused the cheques. In order to substantiate these contentions, the accused has not taken any action against the Hari Om Goyal. Apart from that, the accused has not explained how the cheques in question got into the possession of complainant. Apart from that, as per Ex.P.10 to Ex.P.15, it appears to this Court that, the complainant has supplied Totapuri Mango Pulp and Alphonso Mango Pulp as per the purchase order issued by the accused. It is not the case of the accused that, the 2nd accused is not the partner of accused No.1. Therefore, it is crystal clear that the complainant has supplied the materials as per the purchase order of the accused.
20. At the cost of repetition, the initial presumption favours the complainant. However, the said presumption is rebuttable. If the accused rebutted the presumption then burden shifts back to the complainant. However, in the instant case, the accused has not put forth plausible defence to rebutt the presumption and what are all the defence taken by the accused is amounting to vague defence. Based on the said vague defence the accused cannot rebutt the presumption. At this juncture, it is worth to rely on the decision of Hon'ble Apex Court reported in 2018(8) SCC 165 between Kishan Rao V/s Shankar Gouda, Wherein the SCCH-2 16 C.C.No.3662/2020 Hon'ble Apex Court held that, "Mere denial regarding existence of debt shall not serve any purpose".
21. Again at the cost of risk the version of the accused failed to inspire the confidence of the Court. In the instant case the accused has not properly substantiated his defence with regard to the handing over of cheque to the complainant. In other words the passing of cheque to the complainant is not properly and convincingly established. Therefore, the defence taken by the accused is not believable. In other words, the accused has not raised plausible defence to rebutt the presumption. In the absence of cogent evidence to show that the cheque was not issued in discharge of a debt or other liability, the defence raised by the accused fails to inspire the confidence of this Court to believe his version or to meet the standard of 'Preponderance of Probabilities'. Hence, this Court has hold that the complainant with the assistance of presumption envisaged U/Sec.139 of N.I. Act and also on appreciation of oral and documentary evidence on record, the accused has issued the cheque in question in discharge of his liability, hence, the accused has committed the offence punishable U/Sec. 138 of Negotiable Instruments Act. Accordingly, this Court is answered Point No.1 in the Affirmative.
SCCH-2 17 C.C.No.3662/202022. POINT No.2: Accordingly, in view of the discussions referred to above, this Court proceeds to pass the following:
ORDER Acting U/Sec.255(2) Cr.P.C, the accused is convicted for the offence punishable U/Sec.138 of Negotiable Instruments Act, 1881.
The accused shall pay fine of Rs.11,62,908/ (Rupees Eleven Lakhs Sixty Two Thousand Nine Hundred and Eight Only) and in default to payment of fine, the accused No.2 shall undergo simple imprisonment for a period of 3 months.
By exercising the powers conferred U/Sec.357(1) of Cr.P.C, the fine amount of Rs.11,57,908/ (Rupees Eleven Lakhs Fifty Seven Thousand Nine Hundred and Eight Only) is ordered to be paid to the complainant as compensation and Rs.5,000/ (Rupees Five Thousand Only) is confiscated to the State.SCCH-2 18 C.C.No.3662/2020
Office is hereby directed to provide free copy of judgment to the accused forthwith.
Bail bond of the accused and that of surety shall stand cancelled.
(Dictated to Stenographer on laptop and typed by her, revised and corrected by me, and then pronounced in the open Court on this the 22nd July, 2024) (H.P. Mohan Kumar) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.
:ANNEXURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT:
P.W.1 : Sri. Mohan Kumar.
LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Original Cheque No.099353, dated:22.09.2019.
Ex.P.1(a) : Signature of accused No.2. Ex.P.2 : Original Cheque No.099354, dated:02.10.2019. Ex.P.2(a) : Signature of accused No.2. Ex.P.3 : Bank Endorsement dated:18.10.2019. Ex.P.4 : Bank Endorsement dated:14.10.2019. Ex.P.5 : Copy of legal notice dated:07.11.2019. SCCH-2 19 C.C.No.3662/2020 Ex.P.5(a) : 3 RPAD receipts. 5(b), 5(c) Ex.P.6 : 3 Returned Postal Covers. to 8 Ex.P.6(a), : 3 Unserved legal notices. 7(a), 8(a) Ex.P.9 : GST Registration Certificate. Ex.P.10 to : 3 Purchase orders. 12 Ex.P.13 to : 3 Invoices. 15 Ex.P.16 : Ledger Account Extract. Ex.P.17 to : 4 E-mail printouts. 20 Ex.P.21 & : 2 E-way Bills. 22 Ex.P.23 : WhatsApp Message Printouts. Ex.P.24 : Certificate U/Sec.65B of Indian Evidence Act. Ex.P.25 to : 3 Goods and Service Tax Invoice. 27 Ex.P.28 : Certificate U/Sec.65B of Indian Evidence Act.
LIST OF WITNESSES EXAMINED BY THE ACCUSED:
- None -
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
- Nil -
(H.P. Mohan Kumar) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.