Bangalore District Court
M/S Sharoff Steel Traders vs M/S L V Industries on 19 July, 2024
C.C.NO.4642/2019
0
KABC030139562019
Presented on : 23-02-2019
Registered on : 23-02-2019
Decided on : 19-07-2024
Duration : 5 years, 4 months, 24 days
IN THE COURT OF THE XXVIII ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
BA.,LLB.,LL.M
XXVIII A.C.J.M, Bengaluru City.
DATED; THIS THE 19th DAY OF JULY-2024
C.C.NO.4642/2019
Complainant: M/s.Sharoff Steel Traders,
No.67/B, N.T.Y Layout, Mysore Road,
Bangalore-560026.
R/by one of its Partner
Sri.Anil Kumar Agarwal S/o Sri.Kishan
Agarwal, Age: 44 years,
R/by his G.P.A Holder
Sri.Somashekar S/o Channabyrappa,
Age: 48 years.
As per the order dated: 01.08.2022
The complainant company
R/by its Authorized representative
Mr.Ramakrishna.M S/o Munivenkatappa,
Age: 43 years.
(By Sri.C.R.Pavan Kumar & Anr.,Advs.,)
V/s
Accused: 1. M/s L.V.Industries,
C.C.NO.4642/2019
1
No.73 & 74, Sri.Gandada Kaval,
Behind Konaga Garments,
Bangalore-560091.
2. Mrs.Mala Kumari
Age: Major, Proprietor, L.V.Industries,
No.73 & 74, Sri.Gandada Kaval,
Behind Konaga Garments,
Bangalore-560091.
(By Sri.K.S.Chandrakanth Gowda.,Adv.,)
:JUDGMENT:
This case arises out of the private complaint filed under section 200 of Cr.P.C., for an offence punishable under section 138 of N.I.Act.
2. The case of the complainant's in brief is as under:
It is the case of the complainant is that the complainant is a partnership concern carrying on the business of supply of Steel bars, H.R. Sheets, Plates, Sections and other iron and steel related products. The accused is running a proprietary business in the name and style of L.V.Industries and the accused is very well in contact with the complainant in the business transactions. In pursuance of the business transaction between the complainant and the accused, the accused have placed order to the complainant in need of supply of H.R. coil, H.R.coil 7208, Cut coil, Plate, Cheq. CTL, Sheet. It is further stated that the accused have purchased the said materials and on 45 days credit was given to the accused for repayment. The C.C.NO.4642/2019 2 complainant were supplied the said materials to the accused through lorry services and the same was acknowledged by the accused by affixing the company's seal and signature in satisfaction materials received. It is further stated that the accused after procuring the above said materials, the complainant believing the accused authenticity in business and in good faith provided and facilitated the materials to the accused place as mentioned in the invoice. Further the accused have not cleared the outstanding balance amount of the materials purchased from the complainant where the total outstanding balance of consolidating all the invoices are Rs.63,73,437/- after giving deductions to the payments made by the accused.
3. It is further stated that the complainant reminded the accused several times regarding the outstanding payment which are due from 26.12.2017 for materials purchased by the accused but everything went in vain. However, after several reminders and request from the complainant in order to console the complainant, the accused issued the post dated cheque No.725062 for Rs.9,77,560/-, cheque No.725063 for Rs.8,26,700/-, cheque No.725064 for Rs.7,02,920/-, cheque No.725087 for Rs.20,00,000/-, and cheque No.725088 for Rs.20,00,000/- all the C.C.NO.4642/2019 3 cheques date: 06.09.2018 and all the cheques were drawn on Corporation Bank, Peenya Industrial Estate Branch, Bangalore. The complainant had presented the said cheques for encashment through its banker i.e., the Kotak Mahindra Bank Limited, N.T.Pet branch, Bangalore. But the said cheques were dishonored on 10.09.2018 with an endorsements "Funds Insufficient". Thereafter on 05.10.2018 the complainant got issued a legal notice to the accused through its counsel by RPAD calling upon her to pay the cheques amount within 15 days from the date of service of the notice. The said notice was duly served to the accused on 08.10.2018. After service of the notice, the accused neither reply to the notice nor paid the cheques amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court on 29.10.2018.
4. After the complaint was filed, the cognizance of the offence cited therein was taken and it was registered as PCR No.16731/2018. Sworn statement of the Liaison Officer/GPA holder of the complainant company was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 22.02.2019 to register the case in Register No.III.
C.C.NO.4642/2019 4
5. Thereafter, summons was issued to the accused and the accused No.2 has appeared before the court through counsel and secured bail. She was furnished its necessary papers as complied under section 208 of Cr.P.C,. Thereafter, the plea of the accused was recorded by the court. She has pleaded not guilty and claimed to be tried.
6. During the pendency of the case, the learned counsel for the complainant has filed an application for the substitution of the representative of the company contending that the complainant originally represented by its GPA holder Sri.Somashekar, due to change of circumstances they would like to substitute one of its Authorized representative Sri.Ramakrishna.M during the course of trial. Accordingly on 01.08.2022 the said application was allowed and another authorized representative Sri.Ramakrishna.M represented the complainant. The complainant's have examined this authorized representative as PW.1 and got marked 31 documents at Ex.P.1 to 31 and closed its side.
7. After closer of the evidence of the complainant, the statement under section 313 of Cr.P.C., was recorded. She has denied the incriminating evidence appearing against her. She has submitted no defence evidence. Hence, the defence evidence taken as nil. During the cross examination of PW.1 4 documents C.C.NO.4642/2019 5 were marked at Ex.D.1 to 4.
8. I have heard the arguments on both the sides and perused the written arguments filed by the leaned counsels for the complainant and the accused and also perused the material placed on record.
9. The learned counsel for the accused has relied upon the citations reported in A.I.R 1984 SC 5 and (2008) 2 SCC 321.
10. Upon hearing the arguments and on perusal of the material placed on record, the following points 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 No.2 had issued the cheques-
Ex.P.2 to 6, towards the discharge of the legally enforceable debt/liability.?
3.Whether the complainant further proves that cheques-Ex.P.2 to 6 were dishonored for the reason "Funds Insufficient" in the account of the accused No.1 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?
11. My answers to the above points are as under:
Point No.1: In the Affirmative C.C.NO.4642/2019 6 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:
:REASONS:
12. POINT NO.1 AND 2: These points are inter- related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts and evidence, I have taken both points together for common discussion. The case of the complainant is that the complainant was acquainted with the accused. The accused have purchased HR coils from the complainant in different dates invoices and in different quantity on credit basis. The total outstanding balance of consolidating all the invoices are of Rs.63,73,437/- after giving deductions to the payments made by the accused. The complainant reminded the accused several times regarding outstanding payment which are due from 26.12.2017 for materials purchased by the accused, but the accused failed to repay the same. However, after several reminders and request from the complainant in order to console the complainant the accused had issued the post dated cheques in question in favour of the complainant as part payment of the outstanding amount with interest. As per the request of the accused the complainant had presented the said C.C.NO.4642/2019 7 cheques for encashment through its banker. But the said cheques were dishonor as funds insufficient. Thereafter, the complainant got issued a legal notice to the accused for repayment of the cheques amount within 15 days from the date of service of the notice. The said notice was duly served to the accused. Inspite of service of the notice the accused neither reply to the notice nor paid the cheques amount. As such, the accused have committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court.
13. At this juncture, it is necessary to go through the provisions of N.I.Act before proceeding further. The provisions under section 118(a) and 139 of the Act., 1881 are extracted and they reads thus;
"118. Presumptions as to negotiable instruments:- Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration-that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
(b) as to date:- that every Negotiable C.C.NO.4642/2019 8 Instrument bearing date was made or drawn on such date;
"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."
14. On plain perusal of the provisions under section 118(a) and 139 of the N.I.Act., as extracted hereinabove, it can be seen that initially the presumptions constituted under these two provisions favour the complainant. However, it is open to an accused to raise a defence to rebut the statutory presumptions. An accused can raise a defence, wherein the existence of legally enforceable debt or liability can be contested.
15. It is also well established that an accused for discharging the burden of proof placed upon her under a statute need not examine herself. She may discharge her burden on the basis of the materials already brought on record. An accused has constitutional rights to maintain silence. Standard of proof on part of the accused and that of the prosecution in a Criminal case C.C.NO.4642/2019 9 is different. The prosecution must prove the guilt of an accused beyond all reasonable doubts, the standard of proof so as to prove a defence on the part of an accused is "Preponderance of probabilities".
16. Under the light of above extracted provisions of the Act, I have perused the oral and documentary evidence on record. In support of the case, the complainant have examined its Authorized signatory as P.W.1 and 31 documents were marked at Ex.P.1 to 31. In the chief examination P.W.1 has repeated the contents taken by the complainant in the complaint. Ex.P.1 is the GPA. Ex.P.2 is the certified copy of the minutes extract. Ex.P.2 to 6 are the cheques issued by the accused in favour of the complainant dated:
06.09.2018 for total sum of Rs.65,07,180/-. Ex.P2(a) to 6(a) are the signatures of the accused No.2. Ex.P.7 to 11 are the bank memos dated: 10.09.2018 informing the dishonor of the cheques as "Funds Insufficient" in the account of the accused No.1. Ex.P.12 is the office copy of legal notice dated: 05.10.2018. Ex.P.13 is the postal receipt. Ex.P.14 is the postal acknowledgment. Ex.P.15 is the registration certificate of firm. Ex.P.16 to 25 are the 10 tax invoices. Ex.P.26 is the ledger account. Ex.P.27 is the certificate under section 65(b) of Indian Evidence Act. Ex.P.28 is the Death certificate of Somashekar. Ex.P.29 is the Complaint. Ex.P.30 is C.C.NO.4642/2019 10 the Amended complaint. Ex.P.31 is the certified copy of the payment guarantee letter.
17. I have perused the exhibits on which the complainant have placed their reliance. On perusal of the exhibits, it is clear that cheques in question were presented for encashment within its validity. The bank endorsements with a shara "Fund Insufficient". The complainant issued a legal notice within one month from the date of receipt of memos. The notice was duly served on the accused. The complaint was filed on 29.10.2018, which is within limitation. The transaction with the complainant is admitted. The issuance of the cheques and the signatures on the cheques at Ex.P.2 to 6 is admitted. Therefore, the documents on record clearly show that the complainant have complied the ingredients of section 138(a) to (c) of the N.I.Act. Therefore, the presumptions under section 118 and 139 of the N.I.Act arise in favour of the complainant. The presumptions are rebuttable and the burden is on the accused to rebut the presumptions. The presumption is that the cheques were issued for legally enforceable debt/liability. However, actual existence debt/liability can be contested. The accused can rebut the presumptions by raising probable defences and proving it relying on the evidence of the complainant or by leading her direct evidence.
C.C.NO.4642/2019 11
18. The case was seriously contested by the accused and the service of notice was disputed. The notice was duly served on the accused as per Ex.P.14. The counsel for the accused cross-examined PW.1 in respect of non service of notice. But PW.1 denied the same. Further contended that the notice sent to the accused not served'; that the accused has no knowledge of the notice as it was not served on her; that the accused did not give reply to the notice as the notice was not served on her; that she did not produce any documents to show that the accused was not doing business at the said address, the notice was not served on her and that the accused did not issue reply notice as she was not doing the business at the said address. The counsel for the accused argued that no legal presumption can be raised as the notice was sent to the wrong address and the accused was not doing business at the said address. Hence, when the notice at Ex.P.12, wherein the name of accused is appearing, was confronted.
19. On perusal of Ex.P.12, it is clear that the name of the accused is appearing in the notice. The same notice was sent to the accused. The accused not given reply. There is no evidence on record to show that the accused was doing business at some other address other than the address mentioned in the notice at Ex.P.12. On the other hand, it is clear from the cross-
C.C.NO.4642/2019 12 examination of PW.1 that the accused was doing business at the said address during the year 2017. The above discussion clearly shows that the address mentioned in the notice is the correct address of the accused. As the notice was given to the accused and the same notice was sent to her through RPAD, an inference can be drawn that the notice was served on the accused. Further the address mentioned in the notice being the correct address of the accused, the presumption as per Section 27 of General Clauses Act can be drawn. It states that the notice sent through post shall be deemed to be served, if it is properly addressed to a person to whom it is sent. Therefore, even though the notice sent to the accused through RPAD duly served.
20. In a nutshell it can be said that the statutory notice is an opportunity given to the accused to make payment and avoid the consequences of 138 of N.I.Act. In the case on hand, the summons was duly served on accused and she appeared through her counsel. The accused also admitted the service of summons. She appeared before the court and contested the case by taking all probable defences. Therefore she cannot take the shelter of statutory requirement of service of notice to avoid the consequences of section 138 of N.I.Act. The complaint was filed on 29.10.2018, which C.C.NO.4642/2019 13 is within limitation. The accused admitted the issuance of cheques in favour of the complainant and signatures in the cheques. It is her defence that the cheques were issued to the complainant for the purpose of security. Therefore, the documents on record clearly show that the complainant have complied the ingredients of section 138(a) to (c) of the N.I.Act. Therefore, the presumptions under 118 and 139 of the N.I.Act arise in favour of the complainant. The presumptions are rebuttable and the burden is on the accused to rebut the presumptions. Once the issuance of cheques and signatures are proved, the presumption arises in respect of the fact that the cheques were issued for legally enforceable debt/liability. The accused can rebut the presumption by raising probable defence and proving it relying on the evidence of the complainant or by leading her direct evidence.
21. In order to prove the defence, the accused have not lead any oral as well as documentary evidence on their behalf. Hence, the defence evidence taken as nil. But during the cross examination of PW.1 4 documents were marked at Ex.D.1 to 4. Ex.D.1 is the certified copy of Judgment in O.S.No.659/2021. Ex.D.1(a) is the certified copy of Decree in O.S.No.659/2021. Ex.D.2 is the certified copy of the order sheet. Ex.D.3 is the certified copy of the Plaint.
C.C.NO.4642/2019 14 Ex.D.4 is the certified copy of Examination-in-chief affidavit.
22. But, the accused No.2 has taken the defence that she had issued the cheques for the purpose of security before supplying the materials. She had already paid entire amount to the complainant. Further contended that the complainant not supplied the materials as stated in the complaint. Hence, the accused stopped business with the complainant. As such, there is no due as claimed by the complainant. Further contended that the complainant have misused the said security cheques and filed this false complaint against the accused. Further contended that she has never admitted regarding repayment of the amounts as contended by the complainant in the complaint. The accused in her defence has not disputed Ex.P.2 to 6 being her cheques and drawn on the account of the accused No.1. She also does not dispute her signatures appearing on the said cheques.
23. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of legally enforceable debt/liability, for which the cheques came to be issued. The learned counsel for the complainant has argued that from the evidence placed on record, the fact that the accused purchased the materials from the C.C.NO.4642/2019 15 complainant on credit basis. The complainant has supplied the H.R.coil in different invoices and in different dates for total outstanding balance of Rs.63,73,437/- after giving deductions to the payment made by the accused. It is further argued that the complainant reminded the accused several times regarding repayment of outstanding payment which are due from 26.12.2017. But the accused failed to repay the same. He further argued that the accused in order to part payment of debt/liability and interest had issued the cheques in question in favour of the complainant. As per the request of the accused the complainant presented the said cheques for encashment through their banker. But the said cheques were dishonored for the reasons funds insufficient. Further argued that the accused have not denied Ex.P.2 to 6 being her cheques drawn on the account of the accused No.1. When the signatures is not disputed, the presumption under section 139 N.I.Act is to be drawn in favour of the complainant. The accused have failed to elicit anything in the cross examination of P.W.1 to disbelieve the case of the complainant. The defence have failed to rebut the presumption under section 139 N.I.Act.
24. The counsel for the complainant further argued that the accused have failed to produce any believable evidence that she had issued the cheques in C.C.NO.4642/2019 16 favour of the complainant for the purpose of security before supplying the materials and also the defence why she has not returned back the same is not clear. He further argued that under section 139 of N.I.Act, there is a presumption that the cheques have been issued for discharge of legally enforceable debt/liability. In the present case, the accused have not disputed Ex.P.2 to 6 being her cheque drawn on the account of the accused No.1. The said presumption is available to the complainant. Moreover, under section 118 of N.I.Act, there is a presumption that the Negotiable Instruments is drawn on the date, for the amount and in favour of the person as shown in it. It is for the accused to rebut the said presumption. But in the case on hand no such evidence forthcoming. It was also argued by him that as per the defence by the accused that she had given blank cheques to the complainant for the purpose of security. As such, very defence of the accused is not believable. The learned counsel for the complainant further argued that the accused have not produced any oral as well as documentary evidence to prove her defence. Upon careful perusal of the entire evidence of records both oral as well as documentary evidence the complainant have proved their case. It was further argued that the accused seriously disputed that the complainant collected the blank cheques for the security and the complainant company have C.C.NO.4642/2019 17 misused same. However, the accused have miserable failed to prove the said fact. Further the materials available on record clearly established that the accused admitted the issuance of the cheques to the complainant. The initial burden is the complainant to prove that the cheques was issued in favour of the complainant towards payment of amount, then onus shifts upon the accused to prove her defence and it is for the accused to rebut the legal presumption enumerated under section 138 of Negotiable Instruments Act. As per presumption the cheque was issued for discharge of legal liability and it is for the accused to rebut the said presumption by adducing the cogent and convincing evidence. It was further argued that under the facts and circumstances the complainant have proved that in order to repayment of the amount the accused had issued the cheques in question in favour of the complainant.
25. The learned counsel for the complainant has filed detail written arguments. In his written arguments he has reiterated facts of the case. It is submits that it is very clear that the accused had issued the cheques knowing fully well that they had to honor the cheques issued by them but has not arranged sufficient funds in their account just to mislead the complainant. This act of the accused/s renders themselves liable to be C.C.NO.4642/2019 18 prosecuted under the provisions of section.138 of N.I.Act, 1881, as amended upto date. In this regard the complainant filed the above complaint in this court under section 138 of N.I.Act R/w Sec.200 Cr.P.C. The complainant in support of his complaint has got marked the exhibits from Ex.P.1 to 31 and the advocate for the accused cross examined the complainant in length. At the time of cross examination there was a specific question raised by the accused advocate to the complainant stating that original complainant has not given powers to file the above complaint, however, in the GPA produced as Ex.P.1 has clearly disclosed that the GPA holder can prosecute the case which clearly come to the picture that prosecution of case is possible only when the case is filed by the GPA holder on behalf of the original complainant/principal. Further submits that at the time of cross examination the advocate for the accused, have raised variable question regarding the delivery of the goods/materials by the complainant to the accused, however, the complainant has delivered the goods as mentioned in the invoice sent to the accused and also mentioned the GST number prevailing to such invoices and the accused has availed the input benefit from the GST mentioned in the invoices sent to the accused. The complainant has also clearly mentioned in the numbers of E-way bill which will be generated only when the original invoice is C.C.NO.4642/2019 19 uploaded to the GST portal. However, the accused is denying that the complainant has not mentioned the E- way bill in the invoices sent to the accused. The accused after verifying the exact E-way bill and other contents of the invoice have affixed their seal and signature on the invoices. The accused without any liability would not have issued the alleged cheques to the complainant.
26. It is further submits that at the time of cross examination the advocate for the accused, have raised specific question regarding the interest 24% p.a. for the default payment, Ex.P.16 to 25 clearly disclosed the terms and conditions for the default of payment which clearly disclosed that 24% P.A will be charged by the complainant on the outstanding amount. The accused have affixed their seal and signature and have not contested at any time regarding the penal interest, now the accused is raising an issue that 24% P.A. interest is not accepted by the accused, which does not hold any water on the accused allegations. The counsel for the accused at the time of cross examination, have raised specific question regarding the generations of invoices from Ex.P.16 to 25 wherein the computer operator (Ms.Mamatha) has generated the invoice, but these invoices have been stored before the complainant and the computer operator just takes printout of such C.C.NO.4642/2019 20 invoices only on the instructions of the complainant. Ex.P.16 to 25 are not manipulated invoices and Ex.P.31 clearly shows the admission/Guarantee letter of liability issued by the accused on the outstanding amount. Further the counsel for the accused during the cross examination, have raised specific question regarding filing of income tax returns and balance sheet, however the complainant has not shown the above outstanding amount as bad debts in his balance sheet and I.T. returns, when the above complaint is still pending the complainant cannot come to any conclusion in terms of his assets and liabilities, hence he has not disclosed the balance sheet and I.T. returns. If the transaction in question was not reflected in the accounts and income- tax returns, that would at best hold the assessee or lender liable for action under the income tax law, the complainant succeeds in showing the lending of amount, the existence of legally enforceable debt cannot be denied.
27. Further submits that further during the cross examination the accused counsel, have raised question regarding disclosing of decree obtained by the complainant in COM O.S No.659/2021 and also have got marked as exhibits in D series by confronting to the complainant. These documents are totally irrelevant to the above complainant, however it adds as admission C.C.NO.4642/2019 21 to the liability of the accused. The accused has not taken any steps to challenge the above mentioned Decree and defend the liability which is existing. This clearly shows that the accused just to dodge the proceedings have got marked/confronted the exhibits in D series. The accused was then examined under section 313 of Cr.P.C., wherein all the incriminating evidence were put to the accused and she denied of having any liability towards the complainant. However, the accused failed to file the evidence affidavit to sustain her defence denying the issuance of cheques, service of notice by the complainant to the accused, and denying the liability over the cheques. In his written argument he has relied upon the citations in Crl.A.No. Of /2022 (@ SLP (Crl) No.(s). 5241 of 2016) Jain.P.Jose V/s. Santosh and Anr. (D.D 10.11.2022), in Crl.A.No.508/2019 DD 15.03.2019 between Rohitbhai Jivanlal Patel V/s State of Gujarat and Anr., Crl.A.No.2000/2022 between R.Promod V/s Gangadharaiah, D.D 09.11.2023. Further submits that the present complaint is filed on the basis commercial transaction and hence the complainant is entitled for double the cheques amount as compensation since the complaint is concerned to the year 2019, and the liability of the accused is pertaining from the year 2017. Hence, he prays to allow the complaint and to pay double the cheques amount.
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28. The learned counsel for the accused has argued that there was no legally enforceable debt/liability to the complainant from the accused for which the cheques were issued. Further argued that the accused had issued the blank cheques to the complainant for the purpose of security before supplying the materials and its were misused by the complainant. Further argued that the accused have already repaid the entire amount to the complainant. The complainant instead of returning the cheques they have misused the same. In order to attract the offence punishable under section 138 of N.I.Act, the complainant is firstly required to prove the existence of a legally enforceable debt/liability, for which the cheques came to be issued. It is further argued that the complainant is only in order give trouble to the accused and with an intention to make illegal money from the accused filed false case. This is not permissible under the law. Further argued that the cheques were collected from the accused as security measure and same were misused by the complainant. On looking it Ex.P.2 to 6 the signatures of the accused is admitted. Whereas, the writing part of the cheques amount in words and in figure are different hand writings. Therefore, the entire cheques were filled up by the complainant as there whims. The complainant created all the documents and filed this false case against the accused. Further C.C.NO.4642/2019 23 argued that there is no transaction from the accused with the complainant. When there is no due from the accused, then question of issuance of the cheques does not arise at all. Therefore, from the evidence placed on record, very due amount from the accused is not clearly made out whereas the accused is succeeded in rebutting the presumption available under section 139 of N.I.Act, regarding existence of legally enforceable debt. The learned counsel for the accused further argued that the complainant have misconceived his purported rights in filing the above complaint on the alleged issuance of cheques by the accused in favour of the complainant. Hence, an offence under section 138 of N.I.Act is not attracted. There is no balance or any mismanagement from the accused. The complainant have filed false case against the accused. Hence, the complainant have not made out any case against the accused for the alleged payment of dues as claimed in its complaint.
29. The learned counsel for the accused has filed written arguments. In his written argument reiterated the brief facts of the case. It is further submits that Sri.Somashekar first GPA holder died during the Corona period, prior to his cross examination. Thereafter another GPA holder by name Sri. Ramakrishna is substituted in place of him. He himself C.C.NO.4642/2019 24 also examined as PW.1 and produced Ex.P.1 to 31. Defacto complainant/Sri.Somashekara had no locus standi to file above said complaint. In his written argument he has reiterated the section 142 of N.I.Act. It is further submits that as per section 7 of the N.I.Act, M/s. Sharoff Steel Traders is the payee in this case. So it can institute complaint under section 142 of the N.I.Act. Since it is claiming to be partnership firm, it can authorize any one to institute/file and prosecute above case. In this case PW.1/Sri.Somashekar had produced GPA, as Ex.P.8 and substituted complainant i.e., Sri.Ramakrishna also produced another GPA as Ex.P.1 on 22.05.2023. But in none of these documents there is no averment showing Sri.Somashekar, GPA holder had authorization to file institute complaint in the above case. Close scrutiny of these documents indicate that Mr.Anilkumar Agarwal who was claiming to be partner of M/s. Sharoff Steel Traders had not at all given any authorization to Sri.Somashekar to file complaint in the above case. As such above complaint is not maintainable as it is not in conformity with section 142[(1)] a of the N.I.Act, R/w section 4(2) of the Cr.P.C. Even 'partnership deed' of M/s. Sharoff Steel Traders is not produced in the above case to show Mr.Anilkumar Agarwal, was a partner and he was having power to authorize Sri.Somashekar/1st G.P.A Holder.
C.C.NO.4642/2019 25
30. Further submits that defective/invalid demand notice. In his written argument he has reiterated the section 138 of N.I.Act. In this case demand notice is marked as Ex.P.12. Demand notice indicate that liability amount of the accused as Rs.63,73,437/- consolidated amount in 5 cheques issued by the accused as Rs.65,07,180/- (para-11). It is also shown as part of outstanding amount (Para 11) and interest accrued on outstanding amount of Rs.63,73,437/- from 26.12.2017 at the rate of 24% P.A, as Rs.75,20,568/- (Para 12). In the entire demand notice or in the operative portion of demand notice there is no demand for 'payment of cheques amount'. Instead there is a specific demand for payment of outstanding amount with accrued interest amounting to Rs.75,20,568/-. Therefore, it is kind of notice not required to be given under section 138(b) of the N.I.Act. Hence, demand notice is not valid notice in the eyes of law. As such offence under section 138 of N.I.Act is not made by the complainant.
31. It is further submits that Ex.P.31, is in admissible in evidence. Ex.P.31 is the 'payment guarantee letter' dated: 31.03.2018 produced by PW.1 on 19.03.2024 before this court to show that the accused had admitted her liability of Rs.63,73,437/- towards the complainant firm and in that connection she had issued a cheque bearing No.611208 with a C.C.NO.4642/2019 26 condition that she would honor it within 31.05.2018 for total outstanding amount. Interestingly, the cheque No.611208 drawn on which bank, on which date and for how much amount are not disclosed in Ex.P.31. During the cross examination on 18.04.2024, PW.1 stated that cheque No.611208 was not presented to the bank because the accused replaced that the cheque with 5 disputed cheques of this case, saying that she could not pay all amount in one cheque. But all 5 disputed cheques bear same date i.e., 06.09.2018. This is new version of PW.1 regarding date of issuance of disputed cheques without any support either from in Ex.P.31 or in the complaint. Apart from this the very existence of this document/Ex.P.31 is not disclosed in the demand notice, complaint and sworn statement. Infact it was produced at the fag end of the case on 19.03.2024 when above case was stood for arguments by recalling PW.1. What prevented the PW.1 to disclose about the existence of this document at the earliest point of time is not properly explained by him during his cross examination on 18.04.2024.
32. It is further submits that Ex.P.31, which is produced before this court is a certified copy of a document obtained from the record of Com O.S.No.659/2021, which was decreed ex-parte by the Commercial Court, at Bengaluru, on 06.08.2021, C.C.NO.4642/2019 27 wherein parties were same. In his written argument he has reiterated the section 33 of the Evidence Act. Further submits that Ex.P.31 is produced in this case, which is prior judicial proceedings in nature, when compared with judicial proceedings of Com O.S.No.659/2021, Commercial Court. Ex.P.31 is marked contrary to the spirit of section 33 of the Evidence Act. Further Ex.P.31 is not a evidence of dead person to be relevant under section 33 of the Evidence Act, because in both judicial proceedings PW.1/Ramakrishna is the sole witness. What was the urgency of producing original of Ex.P.31 before the Commercial court, Bengaluru which was decreed exparte, is not explained. Apart from it, it was time barred suit, because cheque dated: 06.09.2018, that suit was instituted on 15.10.2021, beyond three years of limitation period. The complainant could have produced that (original of Ex.P.31) in this case itself. Ex.P.31 (certified copy obtained from commercial court) is produced before this court to give it colour of public document. In his written argument he has reiterated the section 139 of N.I.Act.
33. Further submits that even otherwise that presumption under section 139 of the N.I.Act is rebutted when there are inconsistent evidence between Ex.P.12 (notice), Ex.P.22, 24 and 25 with respect to C.C.NO.4642/2019 28 dates of supply of materials to the accused. Further submits that when the above complaint is not maintainable under section 142 [(1) (a)] of the N.I.Act and as well as offence under section 138 is not made out, in view of non-compliance of section 138(b) of the N.I.Act, section 118 of the N.I.Act which lays down a special rule of evidence applicable to negotiable instruments is not applicable. GST act came into force on 01.07.2017. Prior to it Karnataka Value added tax was being collected to the goods supplied by the complainant. Ex.P.16 (invoice dated: 29.06.2017) raised prior to GST Act containing E-way bill instead of E-sugam. GST Act came into force on 01.07.2017. Prior to it Karnataka value added tax was being collected to the goods supplied by the complainant. Ex.P.16 is generated prior to coming into force of G.S.T Act. That is why value added tax was collected through that invoice. During that regime the generation of E- Sugam bill was mandatory before transportation of Goods. But surprisingly E-way bill No.22676383294 is mentioned in Ex.P.16, instead of E-sugam bill number. The creates doubt about that invoice. After coming into force of the GST Act. The complainant has to generate E-way bill before transporting materials valuing more than Rs.50,000/- which is mandatory. In this case the complainant has not mentioned E-way bill numbers in Ex.P.19 to 25 in a specific column provided in that C.C.NO.4642/2019 29 invoices. It shows that materials were not supplied to the accused as per that invoices. Not a single E-way bill is produced by the complainant to prove transportation of the goods to the accused firm. So existence of liability amount of Rs.63,73,437/- is not proved by the complainant. Further submits that the complainant has not produced income return or GST return or Auditor report to prove true transaction with the accused. The complainant has not proved his case beyond reasonable doubt. When the presumption Under section 118 and 139 of the N.I.Act is not available, the complainant has to prove his case beyond reasonable doubt.
34. It is further submits that in Ex.P.12 (Notice) date of supply of materials is shown as on 24.08.2017, but in Ex.P.22 (Invoice) it is shown as on 26.08.2017. In Ex.P.12 (Notice) date of supply of materials is shown as on 24.08.2017, but in Ex.P.24 (Invoice) it is shown as on 13.09.2017. In Ex.P.12 (notice) date of supply of materials is shown as on 24.08.2017, but in Ex.P.25 (Invoice) it is shown as on 15.09.2017. Hence, the complainant not proved the supply of materials to the accused beyond reasonable doubt. Even if Ex.P.31 dated: 31.03.2018 is admitted as true for the sake of arguments liability admitted there in by the accused for the amount of Rs.63,73,437/-. The inference is that C.C.NO.4642/2019 30 interest on liability amount is waived, then why the accused issued the cheques for the amount of Rs.65,07,180/- is not proved by the complainant. As per the case of the complainant 45 days credit was given on each invoice with a condition that 24% per annual interest will carry from the due date of each invoice. Then why the complainant calculated the interest from 26.12.2017 (as per Para-12 of Ex.P.12) is not proved. It all probabilise the case of the accused that the complainant has misused the cheques given by the accused as security and materials were not supplied by the complainant as per his case. The above case filed by the complainant is for the claim of outstanding amount but not for the cheques amount. Hence, the above case is not maintainable. Hence, he prays to dismissing the case and acquit the accused.
35. In the case on hand the complainant and the accused having some transaction has not been seriously disputed by the accused. Further the accused No.2 not seriously disputed she had issued the cheques in favour of the complainant. It is not disputed that the complainant is a partnership firm and the accused No.1 is a proprietary concern and the accused No.2 is a proprietor and businesswoman and she had issued the cheques-Ex.P.2 to 6. Whereas, the accused No.2 has contended that she had given the signed C.C.NO.4642/2019 31 chaques to the complainant for the purpose of security. When she had given the cheques, which were blank. The accused No.2 has specifically denied having debt/liability issued post dated cheques-Ex.P.2 to 6 dated: 06.09.2018 towards the discharge of any debt/liability. She contends that the blank cheques given by her to the complainant for the purpose of security as was misused by the complainant and the false complaint was filed.
36. In order to attract the offence of the section 138 of N.I.Act, the main ingredients of the existence of the legally enforceable debt/liability, for which the cheques drawn on the account of the accused were given for discharge of the same, are to be proved. The complainant in order to prove its case, have examined its GPA holder as PW.1 and 31 documents were marked at Ex.P.1 to 31. In chief examinations, he has repeated the averments made by the complainant in the complaint. In the present case, the accused has not disputed Ex.P.2 to 6 being her cheque drawn on the account of the accused No.1. The said presumption is available to the complainant.
37. Under section 139 of N.I.Act, there is a presumption regarding the existence of legally enforceable debt/liability. Such presumption is rebuttable presumption and it is opinion to the accused C.C.NO.4642/2019 32 to raise defence discharging the existence of a legally enforceable debt/liability. In the case on hand also the accused have disputed the existence of legally enforceable debt and liability, for which cheques-Ex.P.2 to 6 were issued.
38. Since, the presumption under section 139 of N.I.Act is a rebuttable presumption the accused is firstly required to produce some probable evidence to rebut the same. Though in the criminal cases, the standard of the proof required for the accused is not so strict as required for the complainant to prove the case, further the accused have to produce some probable evidence, which creates doubt about the existence of legally enforceable debt/liability. In the present case, as per the defence taken by the accused that she had given the chaques to the complainant at the time of starting business with the complainant towards security. Except, the said defence, she has not produced any materials to prove such defence. If the accused had given the chaques to the complainant towards security, what prevented the accused to file the complaint immediately after the alleged illegal act made by the complainant. Further what prevented the accused to file the complaint against the complainant for misusing of the said cheques. On which date the accused came to knew about the alleged illegal act of the complainant, C.C.NO.4642/2019 33 she did not whisper about on what date she came to know the alleged cheques illegally misused by the complainant. Admittedly the accused is having knowledge of the financial transaction, why she has given blank cheques to the complainant without anticipating the consequence is not explained by her. So also, she has not stated anything as to what steps the accused took to receive back the blank cheques. Moreover, immediately after the alleged blank cheques misused by the complainant and she has not lodge any complaint before concerned police station. No steps have been taken to receive back the blank cheques, after she came to know about the same. Further the accused has taken the defence that the original complainant has not given powers to file the above complaint, however, in the GPA produced as Ex.P.1 has clearly disclosed that the GPA holder can prosecute the case which clearly come to the picture that prosecution of case is possible only when the case is filed by the GPA holder on behalf of the original complainant/principal. Hence, the defence taken by the accused is not sustainable.
39. Once issuance of the cheques and signatures are admitted, the statutory presumptions would arise under sections 118 and 139 of the N.I.Act that cheques were issued by the drawer for legally payable debt/liability and for valid consideration. The Hon'ble C.C.NO.4642/2019 34 Supreme Court has held in Rangappa V/s Mohan, reported in 2010 AIR SCW 296, the presumption that the cheque was drawn in discharge of legally recoverable debt is a presumption of law that ought to be raised in every case, though, it is a rebuttable presumption. Of course, the presumption under section 139 and 118 of the N.I.Act., are rebuttal presumption. Further it is also held that mere plausible explanation by the drawer is not sufficient and proof of that explanation is necessary. The principle of law laid-down in the above decision is applicable to the facts of this case. In the instant case, since the complainant is in possession of the cheques-Ex.P.2 to 6 the court has to draw the initial presumption that he is the payee of that cheques. Once the initial burden is discharged by the complainant, the onus shifts on the accused to rebut the complainant's case.
40. Further the accused No.2 has taken defence that she had given the blank chaques to the complainant towards security. Hence, an offence punishable under section 138 of N.I.Act., is not attracted. In this regard once issuance of the cheques and signatures are admitted, the statutory presumptions would arise under sections 138 of N.I.Act, that cheques were issued by the drawer for legally payable debt/liability and for valid consideration.
C.C.NO.4642/2019 35 In the case of Sripati Singh (Since deceased) through his son Gaurav Singh V/s State of Jarkhand and another, reported in 2021 SCC Online SC 1002, the Hon'ble Supreme court categorically held that; once the cheque is issued as security for the loan and if the loan is not paid back then if the cheque is dishonored which attract 138 of N.I.Act. The principle of law laid-down in the above decision is applicable to the facts of this case. Therefore, the contention of the accused cannot be acceptable that the cheques were given only for security purpose, but without producing any documents, then the accused have to pay the cheques amount when it is presented for encashment which is legally recoverable debt.
41. In the case of K.S.Ranganatha V/s Vittal Shetty, reported in 2021 SCC Online SC 1191, the Hon'ble Supreme Court held that once the cheque is admitted to be that of the accused, the presumption envisaged in section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability. It is further held that the position of law makes it crystal clear that when a cheque is drawn out and is relied upon by drawee, it C.C.NO.4642/2019 36 will raise a presumption that it is drawn towards a consideration which is a legally recoverable amount; such presumption of course, is rebuttable by proving to the contrary. The onus is on the accused to raise a probable defence and the standard of proof for rebutting the presumption is on preponderance of probabilities.
42. In the case of Kalamani Tax and another V/s P.Balasubramanian, reported in (2021) 5 SCC 283, the Hon'ble Supreme Court has observed that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under section 139 of the Negotiable instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
43. Applying the above said principles to the present case and before considering the point whether the accused succeeded to rebut the presumptions and to establish her defence to the extent of probabilities, it is just and necessary to accumulate undisputed facts in this case.
44. It is not in dispute that bounced cheques belongs to the bank account of the accused No.1. It is also not in dispute that signatures appearing on the C.C.NO.4642/2019 37 bounced cheques is the signatures of the accused No.2. It is also not in dispute that the cheques presented by the complainant came to be dishonored by the banker of the accused No.1 for the reasons stated in the dishonor memos. To consider whether the accused succeeded to rebut the presumption and established the defence to the extent of probabilities, the accused have not produced any documents in this regard.
45. In the defence there is no ill-will between the complainant and the accused. Hence, misuse of cheques and filing false case is not possible. The accused admittedly having knowledge of business. It is implies, she is conversant with financial transaction. If the complainant misused the said cheques and had not return the same, inspite of collecting cheques leaves from her, as a prudent man, the accused should have inquired with the complainant and demanded to return that cheques. No ordinary prudent man would keep quite in such circumstances, without taking any steps. The conduct of the accused is very unusual, because she did not take any legal action against the complainant, even after filing of the complaint based on Ex.P.2 to 6. Further she could have issued notice to her banker to stop payment or legal notice to the complainant or she could have given complaint to the C.C.NO.4642/2019 38 police station immediately. No such steps were taken by the accused. She simply makes a bald allegation of misuse of blank cheques against the complainant. It appears, just to escape from her legal liability, she has taken such contentions without any valid basis.
46. Moreover, the complainant have got issued a legal notice to the accused by registered through its counsel calling upon the accused to make repayment to the complainant. Before a person is held to be guilty of an offence punishable under section 138 of N.I.Act, the complainant have to prove the compliance of the requirement under section 138 of N.I.Act. It is not in dispute that Ex.P.2 to 6 is the cheques drawn on account of the accused No.1. In view of the above discussions, it is also held to be proved that its were drawn for discharge of legally enforceable debt/liability. From the evidence of P.W.1 and also cheques return memos-Ex.P.7 to 11 it is established that the cheques were dishonor for the reasons "Insufficient Funds''. A legal notice being issued as per Ex.P.12 within one month from the date of dishonor of the cheques is also not in dispute. In the case on hand the accused have not seriously disputed regarding notice send by the complainant on her address. But her contention was that the said notice was not served on her. However, the accused had never asserted that the address C.C.NO.4642/2019 39 mentioned in the document is not her address. The presumption under section 114 of the Evidence Act and section 27 of the General Clauses Act is that the notice was deemed to have been served. In the context of section 138 of the Act, makes it clear that if once the sender dispatches the notice by post with correct address written the notice is deemed to have been served by the sender. But, the accused failed to reply the notice, immediately after she received the demand notice. Thereby, she could have asserted her defence at an earliest available opportunity. In the case on hand the notice is sent to the accused at her address. When the accused have not seriously disputed, the notice sent to the correct address is sufficient compliance under section 138 of N.I.Act. Therefore, there is sufficient proof of due service of the legal notice.
47. It is not the contention of the accused that thereafter she has repaid the cheques amount within stipulated time of 15 days on receiving the notice. Therefore, in the case on hand on perusal of the evidence placed on record, all the essential ingredients under section 138 N.I.Act., have been complied with. As the accused have not paid the cheques amount within stipulated period, as such the accused have committed an offence punishable under section 138 of Negotiable Instruments Act. The present complaint is C.C.NO.4642/2019 40 filed before this court within one month after the accused failed to repay the cheques amount. Even the accused did not whisper anything about the defence while her plea was recorded under section 251 of Cr.P.C. In view of judgment of the Hon'ble Supreme Court in Indian Bank Association V/s Union of India and others, (2010(5) SCC 590), it is clear that while recording the plea under section 251 of Cr.P.C., it becomes the duty of the accused to state whether she has any defence to make or she pleads guilty. Thus, unlike under section 240 of Cr.P.C., the accused has no option under section 251 of Cr.P.C., just to deny the allegations made against her. If she is not willing to plead guilty, she must explain what are the defences she wants to take. As such it has to be considered, whatever defence raised by the accused during the trial are all after thought, just to get ride of statutory burden cast on her.
48. In addition to this in the case of T.P.Murugan (Dead) through legal representatives V/s Bojan, reported in 2018 (8) SCC 469, the Hon'ble Apex Court held that once the cheque has been signed and issued in favour of the holder of the cheque, there is statutory presumption that the cheque is issued in respect of legally enforceable debt or liability: rebuttal of such presumption must be by adducing credible evidence.
C.C.NO.4642/2019 41 Mere raising a doubt without cogent evidence with respect to the circumstances, presumption under section 139 of N.I.Act cannot be discharged. The principle of law laid down in the above decisions are applicable to the facts of this case. Except some bald contentions, the accused have not been able to make out a probable case on her behalf.
49. The accused contended that except signatures other writings on the cheques-Ex.P.2 to 6 is not in her handwriting, which were filled up by the complainant and it amounts to material alterations, so, the complaint is liable to be dismissed. When the accused admits her signatures, she cannot take up a defence that other contents of cheques were filled up by the complainant and it amounts to material alteration. In this respect, ruling reported in 2019 SCC On-line (SC) 138), between Bir Singh V/s Mukesh Kumar, the Hon'ble Apex Court held as under:
"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. 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 cheque is otherwise valid, the penal provision of C.C.NO.4642/2019 42 Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still the on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
40. Even a blank cheque leaf, voluntarily signed and handed over by the accused which is towards some payment. Would attract presumption Under section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
50. The principles emerging from the above referred decision make it clear that it is not mandatory and no law prescribes that the contents of the cheque should be written by the signatory to the cheque. A cheque can be written by anybody and if the account holder of the cheque signs it, the presumption under section 139 of N.I.Act arises. The principle of law laid- down in above decision is aptly applicable to the facts of this case. In view of section 20 of N.I.Act, the cheque being an inchoate instrument, if the drawer signs and delivers to the drawee, thereby he gives authority to the drawee thereof to make or complete the instrument.
51. As per the version of the accused No.2 she has nowhere denied transaction. The accused No.2 C.C.NO.4642/2019 43 herself has admitted that the accused No.1 is the holder of alleged cheques. It is sufficient hold that the accused No.2 had issued the cheques and even after she has not repaid the cheques amount the getting of receipt of notice. However, in any manner as the complainant have complied all the terms of ingredients of the provisions of 138 N.I.Act. The accused is liable for dishonor of cheques. In case of dishonor of the cheques, once the execution of cheques is admitted by the accused, then it for her to first rebut presumption arising out of section 139 of N.I.Act. Accordingly, P.W.1 has established the case of the complainant. Therefore, the accused have failed to probables the defence taken by her that Ex.P.2 to 6 were the blank cheques given to the complainant for the purpose of security. Therefore, the accused have failed to rebut the presumption under section 139 of N.I.Act. In the said circumstances, the complainant is not at all required to produce any material as to the transaction between the complainant and the accused, since the initial presumption is still available, when there is no rebuttal evidence.
52. PW.1 in his evidence has specifically deposed that the accused had business with the complainant. The accused purchase the HR coil from the complainant. Further deposed that the accused is due of Rs.63,73,437/-. Further deposed that on several C.C.NO.4642/2019 44 occasions request the accused for repayment of the outstanding payment, the accused had issued post dated cheques in question for a consolidated amount of Rs.65,07,180/- in favour of the complainant. So also it is not in disputed that the complainant and the accused are known to each other, some point of period. But the accused have failed to rebut the presumption under section 139 of N.I.Act. Hence, non furnishing the details of transaction no consequences to disbelieve the case of the complainant. The accused have failed to probables their defence. With these reasons, I answer point No.1 and 2 in the Affirmative.
53. POINT NO.3 AND 4: These two points are inter-related to each other and finding given on any one point will bearing on the another. Hence, in order to avoid repetition of facts and evidence, I have taken these two points together for common discussion Before a person is held to have committed an offence punishable under section 138 of N.I.Act, the complainant have to prove all the requirements of section 138 of N.I.Act. Ex.P.2 to 6 being her cheque drawn on the account of the accused No.1 is not in dispute. The said cheques having been dishonored for the reasons "Funds Insufficient", when its were presented by the complainant before the Bank for encashment is also not seriously disputed by the C.C.NO.4642/2019 45 accused. The accused have not taken up any contention that thereafter she had paid the cheques amount within stipulated time of 15 days, after given of the notice. As such, in the present case on perusal of the documents, the essential requirements of section 138 of N.I.Act, have been complied with. In this case if the accused had issued the blank cheques in favour of the complainant for the purpose of security and why she has not produced any documents. After issuance of notice the accused neither reply to the notice nor paid the cheques amount. Hence, the present complaint came to be filed before the court on 29.10.2018.
54. While discussing the point No.1 and 2, this court has already observed that the complainant have proved that the cheques-Ex.P.2 to 6 were issued for discharge of legally enforceable liability/debt and in view of the mandatory requirements under section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. With these reasons, I answer point No.3 and 4 in the Affirmative.
55. POINT NO.5: The accused is held to have committed an offence punishable under section 138 of N.I.Act. The complainant have proved its case. The accused have failed to prove their rebuttal for the reasons mentioned above and in view of the mandatory C.C.NO.4642/2019 46 requirements of section 138 of N.I.Act, being complied with. The accused is found to have committed an offence punishable under section 138 of N.I.Act. Since, the said offence is an economic crime, the accused is not entitled for the beneficial provisions of probation of offenders Act. In view of the above discussions and the findings on point No.1 to 4, I proceed to pass the following;
:ORDER:
Acting under section 255(2) of Cr.P.C., the accused are convicted for an offence under section 138 of N.I.Act.
The bail bond of the accused hereby stands canceled.
The accused are sentence to pay fine of Rs.66,00,000,/- (Rupees sixty six lakhs only) to the complainant.
It is further ordered that out of the said fine amount an amount of Rs.65,90,000/- (Rupees sixty five lakhs ninety thousand only) shall be paid to the complainant as compensation as per Section 357(1)(b) of Cr.P.C., and remaining amount of Rs.10,000/- (Rupees ten thousand only) shall be remitted to the State.
In default of the payment of fine amount, the accused shall undergo simple C.C.NO.4642/2019 47 imprisonment of six months.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 19 th day of July 2024) Digitally signed by SOUBHAGYA SOUBHAGYA B BHUSHER B BHUSHER Date:
2024.07.23 10:04:19 +0530 (Soubhagya.B.Bhusher) XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE List of witness examined on behalf of the complainant:
PW.1 : Mr.Ramakrishna.M List of documents marked on behalf of the complainant:
Ex.P.1 : GPA. Ex.P.2 to 6 : Cheques.
Ex.P.2(a) to 6(a) : Signatures of the accused No.2.
Ex.P.7 to 11 : Bank endorsements. Ex.P.12 : Office copy of legal notice. Ex.P.13 : Postal receipt. Ex.P.14 : Postal acknowledgment. Ex.P.15 : Registration certificate of firm. Ex.P.16 to 25 : Invoices. Ex.P.26 : Ledger account. Ex.P.27 : Certificate U/s.65(b) of I.E.Act. Ex.P.28 : Death certificate of Somashekar. Ex.P.29 : Complaint. Ex.P.30 : Amended complaint. Ex.P.31 : Certified copy of guarantee letter.
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
C.C.NO.4642/2019
48
Ex.D.1 : Certified copy of Judgment.
Ex.D.1(a) : Certified copy of Decree. Ex.D.2 :Certified copy of the order sheet. Ex.D.3 : Certified copy of the Plaint. Ex.D.4 : Certified copy of Examination-in-chief affidavit.
Digitally signed by SOUBHAGYA SOUBHAGYA B BHUSHER B BHUSHER Date:
2024.07.23 10:04:30 +0530 XXVIII Addl. Chief Judicial Magistrate, Bengaluru City.
C.C.NO.4642/2019 49 19.07.2024 (Judgment pronounced in the Open Court Vide Separate Sheet) :ORDER:
Acting under section 255(2) of Cr.P.C., the accused are convicted for an offence under section 138 of N.I.Act.
The bail bond of the accused hereby stands canceled.
The accused are sentence to pay fine of Rs.66,00,000,/- (Rupees sixty six lakhs only) to the complainant.
It is further ordered that out of the said fine amount an amount of Rs.65,90,000/- (Rupees sixty five lakhs ninety thousand only) shall be paid to the complainant as compensation as per Section 357(1)(b) of Cr.P.C., and remaining amount of Rs.10,000/- (Rupees ten thousand only) shall be remitted to the State.
In default of the payment of fine
amount, the accused shall undergo
simple imprisonment of six months.
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.