Bangalore District Court
Embassy Services Private Limited vs Newbridge Business Centre Private ... on 5 April, 2025
KABC020316122021
IN THE COURT OF THE XXII ADDL. JUDGE, COURT OF
SMALL CAUSES AND ADDL. CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY (SCCH-24).
Presided Over by SMT.ROOPASHRI, B.Com., LL.B.,
XXII ADDL., SCJ & ACJM,
MEMBER - MACT,
BENGALURU.
Dated: On this 5th day of April 2025
CC NO.10932/2021
1. Sl.No. of the Case : C.C.No.10932 of 2021
2. The date of : 17-06-2021
commission of the
offence
3. Name of the : Embassy Services Private Limited
Complainant Having their office at No.150,
Infantry road,
Embassy point,
1st floor, Bengaluru -560 001.
Represented by its Authorized
Signatory
Mr. B S Mohan
(By Sri S Mahesh, Advocate)
4. Name of the 1. M/s Newbridge Business
Accused Centre Private Limited
A Company incorporated under
the Provisions of the Companies
Act, 1956
SCCH-24 2 C.C.10932/2021
Represented by its Managing
Director
Mr. Rakesh R
Office at 777D,
100 feet road,
HAL II stage, Indiranagar,
Bangalore -560 038.
2. Mr. Rakesh R
Managing Director
M/s Newbridge Business Centre
Private Limited
Mantri Altius,
9th floor, Cubbon road,
Shivaji Nagar,
Bangalore -560001.
And both are also at :
11th floor, 'NI' Block,
Manyata Embassy Business Park,
Outer ring road,
Bangalore -560045.
(By Sri K S Harish. Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused found not guilty
8. Date of such order for : 05-04-2025
the following
SCCH-24 3 C.C.10932/2021
JUDGMENT
This complaint is filed under Sec. 200 of Cr. P. C. for the offence punishable under Section 138 of the Negotiable Instruments Act.
2. It is the case of the complainant that: The complainant are undertaking maintenance service of Commercial and residential Properties at Bangalore, whereby they collect maintenance charges towards maintaining the properties from the respective owners or by the occupant of the properties.
3. The complainant are maintaining maintenance commercial premises by name "Manyata Embassy Business Park" at Bangalore wherein the accused is in occupation of a commercial unit situated in the 11th floor, Unit at Block NI of Manyata Embassy Business park, measuring 35,509 sq. feet with super built up area along with 47 car parking space (hereinafter referred to as the Demised Premises) having taken the same on lease from its owner Mr. Anil Kumar Kaya. The accused were to pay an amount of Rs.5,63,986/- towards the monthly maintenance of the demised premises to the complainant.
SCCH-24 4 C.C.10932/20214. The accused no.2 claiming to be the Managing Director of the 1st accused had promised that he would be diligent and regular in paying the monthly maintenance charges without fail as per the terms of the lease agreement.
5. The accused took the Demised premises on rent. He was a chronic defaulter and was not paying monthly maintenance charges diligently and in time. After paying the initial maintenance amount, the accused defaulted in payments. As on 31-10-2020 they were in arrears of Rs.64,97,365/- to the complainant. After much insistence and when the complainant informed the accused that they will take action as per law for nonpayment of maintenance charges, the accused issued cheque towards part payment bearing No.407725 dated 05-04-2021 for Rs.40,00,000/- and cheque bearing No.407725 dated 05-04-2021 for Rs.11,28,496/- drawn on Vijaya Bank, Indiranagar Branch, Bengaluru in favour of Embassy Services Pvt Ltd., When the complainant presented the said cheques for collection through their banker I.e., Kotak Mahindra Bank, Bengaluru, same was returned with an endorsement 'FUNDS INSUFFICIENT' dated 05-04-2021 and 15-04- 2021. Thereafter, the complainant got issued legal notice SCCH-24 5 C.C.10932/2021 to the accused on 04-05-2021 through RPAD and same was returned with shara "Office locked due to COVID"
and Left address". The accused no.2 has represented that he is responsible for the conduct of the business of the 1st accused and he is managing the day to day affairs of the company and also the signatory of the cheques in question. Hence, he is jointly and severally liable to pay the aforesaid cheque amount and also the other dues to the complainant. Accordingly, the accused has committed an offence punishable under Sec.138 of N.I Act, hence, the complaint.
6. After recording the sworn statement of the complainant and also verifying the documents, cognizance was taken against the accused for the offence punishable under Sec. 138 of N.I. Act. The accused no.2 on receiving the summons appeared before this Court through his counsel and was enlarged on bail and his plea was recorded. The accused no.2 pleaded not guilty and claimed to be tried. Hence, the case was posted for evidence of the complainant.
7. The complainant got examined its Managing director as PW.1 and got marked documents as Ex.P1 to Ex.P12. Then, the case was posted for recording the statement of accused no.2 under Sec.313 Cr.P.C. In the SCCH-24 6 C.C.10932/2021 statement U/s 313 Cr.P.C., the accused no.2 has denied all the incriminating evidence appearing against him and claimed to be tried. The accused did not adduce defence evidence. Hence, the case was posted for arguments.
8. Heard the arguments of both side and perused the records.
9. The following points arise for my consideration:
1. Whether the complainant proves that accused has committed an offence punishable under Sec.138 of N.I. Act?
2. What order?
10. My findings on the above points are as under
Point No.1 : In the Negative Point No.2 : As per final order, for the following:
-: R E A S O N S :-
11. POINT NO.1:- It is the definite case of the complainant that, towards the discharge of the maintenance charges of Rs.64,97,365/- availed by the accused no.1 and 2, the accused no.2 has issued disputed cheque bearing No.407725 dated 05-04-2021 SCCH-24 7 C.C.10932/2021 for Rs.40, 00,000/- and bearing No.407726 dated 15-04- 2021 for Rs.11,28,496/- and when the cheques were presented, same was dishonoued for the reason "Funds Insufficient". Though the said fact was brought to the notice of the accused by issuing legal notice but accused have failed to repay the cheque amount.
12. In order to substantiate the contention, the complainant got examined its Managing Director as Pw1 and given evidence in consonance with the averments of the complaint. If the documents produced by the complainant are perused, ExP1 and 2 are the cheques which bear the signature of accused. The accused no.2 nowhere has disputed the cheques which relate to the account of the accused no1 so also his signature in the ExP1 and P2. It is deposed by Pw1 that cheques in question were issued by the accused towards the discharge of liability. The cheques in question were presented by the complainant through his banker which was returned with two memos as per ExP3 and Ex.P.4 stating 'funds insufficient'. Hence he got issued legal notice to the accused through RPAD, which is at Ex.P.5. The postal receipts are marked at Ex.P.6. The Undelivered postal envelopes are marked at Ex.P7 to P9. Tax invoices are at Ex.P10. The Certificate u/Sec.65 B of SCCH-24 8 C.C.10932/2021 Indian Evidence Act is marked as Ex.P.11. The Board authorization letter is marked as Ex.P12.
13. In view of the principles enunciated in the catena of decisions of Hon'ble High Court and Hon'ble Supreme Court, it is evident that when once issuance of cheque with signature of accused on the account maintained by him/her is admitted or proved then statutory presumption in terms of Sections 118 and 139 of N.I. Act will have to draw. Now, it is up to the accused to place rebuttal evidence to displace the statutory presumption available in favour of complainant in terms of Sections 118 and 139 of N.I. Act. The burden of placing rebuttal evidence to displace the statutory presumption is on the accused.
14. The accused have not led their evidence, but by cross examining the PW.1 they have disputed the service of legal notice so also the cheque in question issued by them towards the discharge of arrears of maintenance. It is contended by the accused that they have given the blank signed cheque as security to the owner of the said building by name Anil Kumar Kaya and the complainant has misused the said cheque and lodged false complaint. The accused have seriously disputed the SCCH-24 9 C.C.10932/2021 genuineness of Ex.P10 i.e. Tax invoices. The accused during the course of argument have referred the judgment rendered in Crl. Appeal No. 1497/2022 between Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Anr., and (2019) 5 SCC 418 between Basalingappa Vs. Mudi Basappa.
15. In the light of the contention taken by the complainant and the defence taken by the accused, if the cross examination of PW.1 is perused, as per the evidence of PW.1 the accused have taken the 11 th floor in Mantaya Embassy Business Park on lease for a period of 5 years. The complainant has pleaded ignorance as to the year from which year to which year the accused have taken the 11th floor on lease and he pleaded ignorance the monthly maintenance payable by the accused and the period for which the monthly maintenance is due by the accused. The complainant has not produced the service agreement entered between the complainant and the owner of said building by name Anil Kumar Kaya and has not produced the sale deed executed in favour of Anil Kumar Kaya in respect of the building and the lease agreement entered between the accused and Mr.Anil Kumar Kaya. Even though the complainant has not produced any of the aforesaid document and thereby has SCCH-24 10 C.C.10932/2021 not proved what is the maintenance charges pertaining to the 11th floor allegedly occupied by the accused, but the accused by posing suggestion to the PW.1 to the effect that "as long as accused were in the 11 th floor as lessee they have paid entire maintenance amount and there is no due of "Maintenance amount" have admitted that the complainant was rendering maintenance service even to the demised premises occupied by the accused.
16. The accused has bent upon disputed the quantum of arrears of maintenance claimed by the complainant and submitted that since from the date of lock down declared by the Government due to Covid -19 they have not run their business in the demised premises and they left the premises in the month of March -2020 only and the said fact was well within the knowledge of the complainant.
17. The PW.1 during his cross examination while pleading ignorance as to the monthly maintenance pertaining to the demised premises has deposed that they used to raise invoice in the name of accused once in a three months and that the accused were due of maintenance charges till the year 2020 and that they SCCH-24 11 C.C.10932/2021 used to give invoice personally to the accused and for issuing the invoice they used to collect acknowledgment and for the invoice amount they have maintained account in the computer system but have not produced the said statement before the court. It is further admitted by Pw1 that they have not produced any document to prove that the accused were due of Rs.64,97,365/-.
18. Though the PW.1 has deposed that once in three months they used to raise invoice in the name of accused and that for issuing invoice they will get an acknowledgment from the accused, but no acknowledgment allegedly given by the accused for having received the invoice has been produced before the court. It is relevant to state here that the complainant at the first instance has not produced the tax invoices. It is after closer of the cross examination of PW.1, by reopening the case they have produced the tax invoices as per Ex.P10 and certificate u/Sec. 65-B of the Evidence Act. As observed supra, the accused have seriously disputed the genuineness of Ex.P10. If Ex.P10 is perused, the tax invoice was raised for the month of November -2019, December -2019 and April -2020 to October -2020. It means, for every month tax invoice was allegedly raised in the name of accused. When PW.1 has SCCH-24 12 C.C.10932/2021 categorically deposed that they used to raise tax invoice once in three months, but the tax invoice produced by the complainant speaks otherwise. If really once in three months tax invoice was raised, for block period of three months the complainant ought to have produced the tax invoice towards the maintenance charges. But the ExP10 discloses that for every month tax invoice was raised in the name of the accused. Hence, the oral evidence given by the PW.1 does not corroborate with the documentary evidence placed by them. It is further relevant to state here that as observed supra, the tax invoices as per Ex.P10 are dated 02-10-2020, 04-11-2019, 01-04-2020, 02-05-2020, 01-07-2020, 01-08-2020, 02-09-2020 and 02-10-2020. It means tax invoices as per Ex.P10 was prepared on the aforesaid dates. But the digital signature of the representative of the complainant company is dated 21-09-2023. When invoices produced by the complainant are the e- tax Invoices, the authorized person will have to put his digital signature on the date on which tax invoice was raised. Even if any number of times the copy of the said tax invoice is obtained from the official web site but the date of the digital signature would be the same on which the invoice was raised. Hence, when the tax invoices as per Ex.P10 was raised from the month of November -2019, December -2019 and SCCH-24 13 C.C.10932/2021 from April -2020 to October -2020 the date of the digital signature in the said tax invoices would be on the aforesaid dates only. But as observed supra, in all the tax invoices the digital signature was put on 21-09-2023. It is vehemently argued by the learned counsel for complainant that the date 21-09-2023 is the date on which the print out of the tax invoice was taken. But if Ex.P10 is perused, nowhere it is mentioned that 21-09- 2023 is the date on which the print out of the tax invoice was taken but it is mentioned that Rajan Srinidhi had digitally signed the said tax invoice on 21-09-2023. Hence, on the said ground it creates doubt in the mind of the court about the genuineness of the Ex.P10. Further as per the case of complainant, he is rendering only maintenance services to the occupant of premises in Mantaya Embassy Business Park and it is nowhere the case of the complainant that even electricity charges and rent towards the premises comes under the maintenance charges and complainant is collecting electricity charges and rent under the head maintenance charges. If maintenance charges of Rs.5,63,983/- one mentioned in the Ex.P10 for the month of November and December - 2019 and April -2020 to October-2020 is calculated it comes around Rs.50,75,847/-. But the complainant has claimed arrears of maintenance for the said period to the SCCH-24 14 C.C.10932/2021 tune of Rs.64,97,365/-. If tax invoice is perused, for the aforesaid months the tax invoices even for the electricity charges is also raised.
19. The learned counsel for complainant has referred the e- mail communication allegedly made between the complainant and accused with respect to the arrears of maintenance. The print out of the said e- mail copies are the part and parcel of Ex.P10. It is vehemently submitted by the learned counsel for complainant that the accused have not cross examined the PW.1 on the said e- mail communication and by not cross examining the PW.1 on the said document, the accused have admitted the case of complainant and in turn the cheque amount due by the accused.
20. In the light of the aforesaid argument canvassed by the learned counsel for complainant, if the e-mail communication allegedly made between the complainant and accused is perused, it is true that there is reference about the amount due by the accused and there is reference even about the time sought by the accused to pay the said amount. But nowhere is it stated as to how much of the amount the accused is due to the complainant. If the e-mail communication dated 10-10- SCCH-24 15 C.C.10932/2021 2020 is perused, wherein there is reference about rental arrears but not towards the arrears of maintenance charges. Hence, it cannot be made out from the Ex.P10 and e-mail communication as to whether the accused was due of rent or whether he is due of maintenance charges and whether maintenance charges includes electricity charges and rent etc., Hence, it can be said that Ex.P10 is not a reliable document and based on the said document it cannot be said accused is due of Rs.64,97,365/- towards arrears of maintenance. At the cost of repetition, as per the case of complainant the accused was due of arrears of maintenance from the month of November and December -2019 and April to October -2020. The court can take judicial notice that due to Covid -19 I phase, lock down was declared from March -2020 and it continued for a long time. The PW.1 has admitted that the demised premises are a commercial complex and during lock down period no one was running business in the said building. When the notice issued to the accused to the address of the demised premises was returned as "Left the address" and when PW.1 himself has admitted that during the lock down period no one was running business in the said building, but if the tax invoice produced by the complainant for the said lock down period is perused, SCCH-24 16 C.C.10932/2021 very same amount was charged towards maintenance which they used to charge earlier to the lock down. When entire building including the demised premises was closed and no work was running in the said building and there was no electricity consumption during the said period, under such circumstances minimum electricity charges would have been charged. But as observed supra, the maintenance charges which include electricity charges during the Covid period was similar to the maintenance charges charged at the earlier period. The complainant has not furnished proper account to prove that the accused was due of maintenance charges of Rs.64,97,365/-. When accused has disputed the issuance of disputed cheque towards the alleged arrears of maintenance and disputed the maintenance charges one calculated by the complainant, under such circumstances, the complainant ought to have produced reliable document to prove that for the above said months the accused was due of maintenance charges to the tune of Rs.64,97,365/-. When PW.1 has deposed that they have maintained account, under such circumstances the PW.1 ought to have produced the said statement of account before the court and had the complainant produced the said statement it would have thrown light on the case of complainant.
SCCH-24 17 C.C.10932/202121. So far as service of legal notice is concerned, it is also doubtful for the reason that as admitted by PW.1, during the lock down entire business transaction in Mantaya Embassy Business Park was closed including the demised premises. As observed supra, the lock down was declared on 23rd March -2020 and it continued for a long time. The notice as per Ex.P5 was issued on 29-04- 2021 and the said notice was returned un-served with shara "Left the Address". When accused has left the demised premises in the month of March -2020 itself and the said fact must have been within the knowledge of the complainant because as admitted by PW.1 whenever the tenant vacated the premises they will inform the same to the maintenance service provider so that they will not charge any maintenance for the subsequent period. Hence, when accused stated to have left the premises in the month of March -2020 itself, it is after informing the maintenance service provider only they have vacated the premises, under such circumstances the complainant having the personal e-mail address of the accused, whatsapp number and mobile number of the accused could have send the legal notice to the accused by collecting their address as on the date of issuance of notice and could have send the legal notice to the said address or could have send the notice through mail and SCCH-24 18 C.C.10932/2021 whatsapp. Hence, the service of notice to the accused is also doubtful. Hence, though the accused has not disputed the signature in the Ex.P1 and ExP2 so but the defence taken by him to the effect that he has issued the disputed cheque as security to the owner of the said building and complainant has misused the said cheque cannot be ruled out. The complainant has miserably failed to prove the legally recoverable debt and the issuance of cheque towards the discharge of alleged debt. Consequently, point No.1 is answered in the negative.
22. POINT No.2 :- In the light of the reasons on the point No.1 and 2, I proceed to pass the following;
ORDER Acting under Sec. 255 (1) of Cr.PC, the accused are not found guilty of the o/p/u/s 138 read with section 142 of NI Act.
The bail and surety bond of the accused no.2 and surety shall stand cancelled.
(Dictated to the stenographer directly on the computer, corrected and then pronounced by me in open court, on this the 5th day of April 2025.) (ROOPASHRI) XXII Addl. SCJ & ACJM Bengaluru.
SCCH-24 19 C.C.10932/2021:ANNEXTURE:
LIST OF WITNESSES EXAMINED ON BEHALF THE COMPLAINANT P.W.1 : B S Mohan LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 & 2 : Cheques given by accused
Ex.P.1(a) & 2(a) : Signatures of the accused
Ex.P.3 & 4 : Bank endorsements
Ex.P.5 : Copy of legal notice
Ex.P.6 : Postal Receipts ( 3 in nos)
Ex.P.7 to 9 : Undelivered postal envelopes
Ex.P.10 : Tax Invoices
Ex.P.11 Certificate u/Sec. 65 B Evidence
Act
Ex.P12 Board authorization letter
LIST OF WITNESSES EXAMINED BY THE ACCUSED
-NIL-
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
-NIL_ XXII Addl. SCJ & ACJM Bengaluru.