Bangalore District Court
M/S. Rishaub Traders vs M/S. Mahalakshmi Department on 6 December, 2018
1 C.C.NO.10864 OF 2017
IN THE COURT OF THE XII ADDL. CHIEF METROPOLITAN
MAGISTRATE, AT BENGALURU
Dated this the 6th Day of December 2018
Present: Sri. Rajkumar .S.Amminbhavi., B.Com., LLB (Spl)
XII Addl. Chief Metropolitan Magistrate,
Bengaluru.
C.C.No. 10864/2017
Complainant: M/s. Rishaub Traders
Represented by its Proprietor
Sri. Rajkumar Bohrah
S/o. Bhurmal Bohrah
Aged about 38 Years
R/at. No.14/54(B), 2nd Block,
6th Main Road, APMC Yard
Yeshwanthapura
Bengaluru-560 022.
(By V.G.Manjunath., Adv)
- Vs -
Accused: M/s. Mahalakshmi Department
Stores
Represented by its proprietor
Smt. P. Rekha
No.410, N.G.Halli Main Road
Rukmaninagar
Nagasandra Post
Bengaluru-560 073.
(By. Chandpash., Adv)
Offence complained of: U/s. 138 of the Negotiable
Instruments Act
Plea of the accused: Pleaded not guilty
Final Order: Accused is Convicted
Date of order: 06.12.2018.
2 C.C.NO.10864 OF 2017
******
JUDGMENT
This is a complaint under Sec.200 of Cr.PC against the accused for the offence punishable under Sec.138 of the Negotiable Instruments Act.
2. The facts of the complaint in brief are that, the accused is the customer of the complainant and complainant is running M/s. Rishaub Traders for General Merchants and Commission Agents for selling Sugar, Chakki Atta, Maida, Suji and other items and the complainant is the proprietor of the said traders and the accused had approached the complainant for purchase the items from the complainant and accused is also taking items by cash and carry and after some times the accused took the said items from the complainant on credit basis and the accused has purchased the times an amount of Rs.74,250/- on 15.09.2016 on credit basis and the accused has purchased the items from the complainant on the above said date on tax invoice No.5728, dated:15.09.2016 and on 26.09.2016 an amount of Rs.63,520/- was purchased by the accused on credit basis and the accused has purchased the items worth of Rs.27,900/- on 07.10.2016, total an amount of Rs.1,65,670/- on credit basis and with respect to part of 3 C.C.NO.10864 OF 2017 repayment of the said amount of Rs.1,00,000/- the accused has issued post dated cheque bearing No.263183, dated:04.01.2017 drawn on Karnataka Bank Limited, Hesaragatta Main Road Branch, Benglauru-560 073 in favour of the complainant and assured that, the said cheque would be honoured on its presentation and accordingly, as per the assurance made by the accused, the complainant has presented the said cheque for encashment through his banker i.e., Bank of Baroda, Tumkur Road Branch, Bengaluru, but it was dishonoured with an endorsement as "Funds Insufficient" on 06.01.2017 and thereafter, the complainant has informed the said fact to the accused and at that time, the accused has requested the complainant to re-present the said cheque once again and same would be honoured and as per the assurnace made by the accused, the complainant once again presented the said cheque for encahsment and it was returned with an same endorsement and same has been informed to the accused, but the accused did not responded the same. Hence, the complainant had got issued the legal notice on 27.02.2017 by way of RPAD and Speed Post calling upon her to repay the said due amount within 15 days from the date of receipt of this legal notice and it was duly served upon the accused. Despite of service of the legal notice, the accused neither paid the due amount nor replied the legal notice issued by the 4 C.C.NO.10864 OF 2017 complainant. Hence, the complainant had constrained to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act., which is well within time and based on the records available on record cognizance has been taken and registered it PCR.
3. After recording of the sworn statement of the complainant and complaint is registered in criminal case register and after issuance of summons to the accused, pursuant to the summons the accused had appeared before this Court through his counsel and enlarged on bail. The substance of accusation was recorded and read over to the accused in her vernacular. She pleaded not guilty. Hence, claims for trail.
4. In order to prove the case of the complainant, the complainant got himself examined as PW.1 & got 11 documents marked as Ex.P.1 to Ex.P.11 and PW-1 has been fully cross-examined and the statement of accused under Section 313 of Cr.P.C., was recorded and the accused has denied the incriminating statement against her and the accused herself examined as DW-1 and got marked two documents as per Ex.D1 and Ex.D2 and when the matter was posted for cross of DW-1 and subsequently, inspite of giving sufficient opportunity, the accused has failed to tender his cross-examination and accordingly, his 5 C.C.NO.10864 OF 2017 evidence discarded and the matter was posted for arguments.
5. Heard arguments.
6. The following points arise for my determination;
1. Whether the complainant proves that the accused had issued Cheque bearing No.263183, dated: 04.12.2017 for a sum of Rs.1,00,000/- drawn on Karnataka Bank Limited, Hesaragatta Main Road Branch, Bengaluru, for discharge of the amount and when the said cheque presented for encashment, it was dishonoured with an endorsement "Funds Insufficient" and after issuance of the legal notice she fails to repay the said amount and Thereby, the accused have committed offence punishable U/s. 138 N.I.Act?
2. What order ?
7. My answer to the above points are;
Point No.1 : In the Affirmative
Point No.2 : As per final order for the
following;
REASONS
8. POINT NO.1: On perusal of the evidence of PW-1 he has reiterated as per the averments made in the complaint 6 C.C.NO.10864 OF 2017 and he has got marked 8 documents namely, cheque which is marked as Ex.P1, the signature of the accused therein which is marked as Ex.P1(a), two bank endorsements which are marked as Ex.P2 and Ex.P3, the office of the legal notice which is marked as Ex.P4, two postal receipts which are marked as Ex.P5 and Ex.P6, two postal acknowledgment which are marked as Ex.P7 and Ex.P8, three copies of the bill which are marked as Ex.P9 to Ex.P11.
9. During the course of cross of PW-1 he has deposed that, he being the proprietor of M/s. Rishaub Traders for the last 13 yers, but to that effect, he has not produced any documents. He deposed that, he was and is doing wholesale business, but to that effect, he has not obtained any license from the competent authority. He deposed that, he was and is running the said Traders at RMC Yard, Yeshwanthpura after obtained necessary permission from the APMC Yard and he was and is renewal the permission from time to time. He deposed that, copy of the Vat certificate produced before this Court and the GST came into force from July 2017 and there is no ambiguity to produce the GST certificate. He deposed that, he has maintained register with respect to sale and purchase the articles and there is no ambiguity to produce register. He deposed that, the accused has purchased the said itemts 7 C.C.NO.10864 OF 2017 in the year 2016. He deposed that, copy of the original bills which are marked as Ex.P10 and Ex.P11 which are issued to the accused at the time of purchased the articles. It is true that, in Ex.P10 and Ex.P11 there is no specifically mentioned that, invoice number, terms and conditions. It is true that, in Ex.P10 and Ex.P11 there is no specifically mentioned that, invoice number. He deposed that, there is no ambiguity to produce the sale tax register. He deposed that, in his income tax returns, he has specifically mentioned that, balance amount which is payable by his customer. He denied the suggestion that, the accused has not at all purchased the article from and he has not at all due amount in question to him and he has not at all issued cheque in question for repayment of the part of the due amount and he has created Ex.P9 to Ex.P11 with an intention to get wrong full gain from the accused.
10. During the course of defence, the accused herself examined as DW-1 by way of oral evidence, wherein, she has specifically stated that, she being proprietor of M/s. Mahalakshmi Departmental Store since from 2009 and she she know the accused since from 2012. She has produced the ledger extract in the year 2011-13 and 2013-14 pertain to Mahalakshmi Departmental Stores and which are marked as Ex.D1 and Ex.D2. She deposed that, in the year 2013-14 issued cheque signed blank cheque for the 8 C.C.NO.10864 OF 2017 security purpose. She deposed that, contents written on the Ex.P1 are not her own hand writings. She deposed that, legal notice was not duly served upon her. She deposed that, she was not doing any business with the present complaint and she had issued cheque in question for the security purpose and same has been misused and filed false complaint with an intention to get wrong full gain.
11. When the matter was posted for cross of DW-1 and subsequently, inspite of giving sufficient the accused has failed to tender his cross-examination and accordingly, evidence of DW-1 is discarded and after heard the arguments and posted the matter for judgment.
12. On perusal of the averments made in the complaint and also documents produced by the complainant is that, it is an admitted fact that, even after issuance of the legal notice by the complainant to the accused prior to filing of the said complaint which was duly served and after receipt of the legal notice, the accused has not given reply notice. Therefore, prior to filing of the said complaint the complainant had complied all the necessary ingredients under Section 138 of N.I.Act. There is no dispute that, Ex.P1 cheque is belonging to her own bank account and the signature found on the Ex.P1(a) is her own signature.
9 C.C.NO.10864 OF 201713. It is case of the complainant is that, the complainant is running the proprietary concern by whole sale business and the accused is running the proprietary concern by retail business and accordingly, the accused has purchased the articles from the complainant on credit basis and with respect to payment of part of the due amount, the accused has issued cheque in question and assured that, the said cheque would be honoured on its presentation and after presentation of the said cheque, it was dishonoured and same has been informed to the accused, but the accused not responded the same and thereby, the complainant has got issued legal notice through his counsel and same has been duly served upon the accused and despite of service of the legal notice, the accused neither paid the borrowed loan amount nor replied the legal notice issued by the complainant. Hence, the complainant has filed the present complaint.
14. On the other hand, the accused has taken specific defence during the cross of PW-1 and during the course of defence evidence that, she was not at all purchased the articles from the complainant and she has not all issued cheques in question to the complainant for payment of part of due amount and further, she was issued cheque in question to the complainant for the security purpose and same has been misused and filed false complaint with an 10 C.C.NO.10864 OF 2017 intention to get wrong full gain, but to substantiate the same, she ought to have produce any documentary evidence and she ought to have stated that, for what purpose, she had issued cheque in question to the complainant except her oral testimony.
15. If really, she was not at all purchased the articles from the complainant and she has not all issued cheques in question to the complainant for payment of party of due amount and further, she was issued cheque in question to the complainant for the security purpose and same has been misused and filed false complaint with an intention to get wrong full gain, to substantiate the same, she ought to have gave stop payment instruction to her banker, she ought to have take any legal action against the complainant, she ought to have challenged the cognizance taken by this Court, she ought to have tender her cross- examination. Therefore, non-performing the aforesaid legal proceedings that itself, it is very much fatal to the alleged defence set-up by the accused during the course of PW-1 and during the course of her evidence.
16. There is no dispute that, Ex.P1 cheque is belonging to her own bank account cheque and signature found on the Ex.P1(a) is her own signature. Therefore, it can be presumed that, the accused has issued the Ex.P1 to the complainant knowing fully well without having sufficient 11 C.C.NO.10864 OF 2017 funds in her bank account with an intention to defeat the claim of the complainant. Further, no ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction. Further, the complainant has produced the Ex.P9 to Ex.P11 with respect to collateral purpose and to substantiate that, the accused has purchased the articles from him. Therefore, it can be presumed that, the accused has purchased the articles from the complainant and for payment of the part of the due amount, the accused had issued cheque in question.
17. The drawer of the cheque have to take abundant precaution prior to issuance of cheque in question. Therefore, in the instant case also. It can be presumed that, no any ordinary prudent man will issue signed blank cheque to any other persons without having monetary transaction between themselves. Further, the complainant has proved his case by adducing cogent and corroborative evidence as per the section 138 of N.I.Act., on the other hand, the accused has failed to rebut her defence by adducing cogent and corroborative evidence as per Section 139 of N.I.Act., Hence, the probability of the preponderance is higher on the side of the complainant, rather than the accused.
18. Ordinarily offence under Section 138 of N.I.Act 12 C.C.NO.10864 OF 2017 "mensrea" is not essential, under Section 138 of N.I.Act , is bring into operation rule of strict liability, whereas, "mensrea" is essential ingredients in criminal offences. Therefore, The complainant has proved her case against the accused, since offence under Section 138 of N.I.Act element of Mensrea has been excluded in general public interest to curb the instances of dishonouring of cheques and to lend the credibility to the commercial transaction. Therefore, in this case also the accused knowing fully he was due part of credit bill in question from the complainant and for discharge the part of the due amount in question she has issued the Ex.P1 to the complainant. Since the present complaint is summary trial and quasi- criminal in nature, it is like recovery proceedings and punishment is fine or in default of it simple imprisonment.
19. Looking to the conduct of the parties to the proceedings, both the parties have running independently their proprietary concern and there was commercial transaction took place between themselves and the accused has issued cheque in question on 04.01.2017 for part of due amount in the year 2016, already two years have elapsed and awarding interest at the rate of 9% per annum upon the principle an amount of Rs.1,00,000/-, an amount of Rs.18,000/- and awarding cost of litigation an amount of Rs.4,000/- since the trail faced by the 13 C.C.NO.10864 OF 2017 complainant is just and proper to meet the ends of justice.
20. Hence, in the light of the above observation, the complainant has successfully proved that, the accused has committed offence punishable under Section 138 of N.I. Act with these reasons, I am the opinion that, the complainant successfully established before the Court, the accused has issued Ex.P1 including interest and cost of litigation to the complainant for the legally recoverable debt including cost and interest. Therefore, I answer the point No.1 in the affirmative.
21. Point No.2 :- In view of my findings on Point No.1 in the affirmative, I proceed to pas the following...
ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.1,22,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Two Months.
Further, ordered that, out of the said fine amount of Rs.1,20,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining 14 C.C.NO.10864 OF 2017 an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified, corrected and then pronounced by me in the open Court on this the 6th day of December 2018).
(Rajkumar.S.Amminbhavi) XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
ANNEXURE List of witnesses examined on behalf of the complainant:
PW-1 Rajkumar Bohrah List of documents exhibited on behalf of the complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the accused Ex.P.2 & 3 Two bank endorsements Ex.P.4 Office Copy of the legal Notice Ex.P.5 & 6 Two postal receipts Ex.P.7 & 8 Two postal acknowledgments Ex.P.9 to 11 Three bills
List of witnesses examined on behalf of the accused :
DW.1 P. Rekha 15 C.C.NO.10864 OF 2017 List of documents exhibited on behalf of the accused :
Ex.D1 & 2 Two copies of the ledger extract XII Addl. Chief Metropolitan Magistrate, Bengaluru City.16 C.C.NO.10864 OF 2017
06.12.2018.
Complainant : VGM Accused : CP Judgment.
(Vide separate judgment pronounced in the open Court) ORDER Acting U/s 255(2) Cr.P.C., the accused is convicted for the offence punishable U/s. 138 of N.I. Act.
The accused shall pay a fine of Rs.1,22,000/-. In default of payment of said fine amount, the accused shall undergo simple imprisonment for Two Months.
Further, ordered that, out of the said fine amount of Rs.1,20,000/- shall be paid to the complainant as compensation, as provided U/s 357 of Cr.P.C., and remaining an amount of Rs.2,000/- shall be remitted to the state as fine.
The bail bond and surety bond of the accused stands canceled.
Free copy issued to the accused.
XII Addl. Chief Metropolitan Magistrate, Bengaluru City.
17 C.C.NO.10864 OF 2017 18 C.C.NO.10864 OF 2017Heard Inference 19 C.C.NO.10864 OF 2017