Bangalore District Court
Mr. K.T. Anand vs M/S. Sahara Systems on 1 December, 2018
THE COURT OF LVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL UNIT, BENGALURU. (ACMM-58)
PRESENT: Sri KAMALAKSHA.D, B.A., LLB.
LVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE,
Dated : This the 1st day of December, 2018.
C.C.No.50603/2015
COMPLAINANT : Mr. K.T. Anand
S/o. Late Thimmaiah,
Aged about 43 years,
R/at No.68, Site No.33, 5th
Cross, Doddanna Industrial
Estate Main Road,Hegganahalli,
Bengaluru - 560 091.
(By Sri Shreenevasa- Advocate)
V/s
ACCUSED : M/s. Sahara Systems
Technologies
No.C-57, NGF Industrial Area,
Mahadevapura,
Bengaluru - 560 048.
Rep. by its Proprietrix,
Smt. Vijaya,
W/o. S.M. Prakash
(By Sri D.Prabhakar, Advocate)
1 Date of Commencement 27.11.2014
of offence
2 Date of report of offence 24.06.2014
3 Presence of accused
3a. Before the Court 23.06.2017
3b. Released on bail 23.06.2017
4 Name of the Complainant Mr. K.T. Anand
5 Date of recording of 19.07.2017
evidence
6 Date of closure of 29.10.2018
evidence
7 Offences alleged U/s 138 of the Negotiable
Instruments Act.
8 Opinion of Judge Accused is found guilty.
2 CC.No.50603/2015
JUDGEMENT
The Private Complaint is filed under Section 200 of Cr.P.C against the accused alleging that she has committed the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant are as follows :
The complainant submits that he is carrying business under the name and style M/s.3D Toolings & Designers in the address given in the cause title of the complaint. The Complainant being the customer of the Accused, approached the Accused for supply of used Makino EDM wire cut U32K 2003 model and based upon the request, the Accused raised invoice and agreed to supply the said machine for total sum of Rs.16,00,000/- with a condition that the Complainant shall pay Rs.3,00,000/- as advance for the said supply. As per the condition, upon the pro-form invoice dtd.5.4.2010 issued by the Accused, the Complainant paid sum of Rs.3,00,000/- to the Accused towards advance price by issuing Cheque bearing No.328194 dtd.10.4.2010 drawn on SBI, Mahadevapupura, Bengaluru in the name of Sahara Systems Technologies and that Cheque was duly encashed by the Accused.3 CC.No.50603/2015
3. It is further submitted by the Complainant that the Accused received sum of Rs.3,00,000/- as advance money towards part sale price of the said machinery. Then the Accused never shown any interest in the matter of supply of said machinery. After many requests, the Accused expressed her difficulty to supply the materials as agreed. The Complainant requested to refund the advance amount. For that, the Accused issued two Cheques for sum of Rs.1,50,000/- each and both are drawn on SBM, Kayce Industrial Estate, Whitefield Road, Hoody, Bengaluru. The Accused requested to present the said Cheques in the second week of February 2011 so that the Accused would arrange sufficient funds in her bank account to honour the said two Cheques. On presentation of the said two Cheques came to dishonoured to the reason "funds insufficient". Thereafter, the Complainant caused Legal Notice and thereafter filed a complaint against the Accused before the learned 13th ACMM, Bengaluru in C.C.No.21852/2011 and then the same was transferred 27th ACMM. After issuance of non-bearable warrant the Accused proposed for compromise the matter through her husband by name Sri S.M. Prakash and accordingly, her husband Sri S.M. Prakash issued two Manager's Cheques for Rs.1,00,000/- dtd.4.3.2014 and another Cheque bearing 4 CC.No.50603/2015 No.7.3.2014 both drawn on HDFC bank, Mahadevaprua, Bengaluru.
4. The Complainant further submits that two Manager's Cheques are encashed by him and further he presented post- dated Cheque for sum of Rs.1,00,000/- Cheque bearing No.000050 dtd. 20.6.2014 issued by Accused drawn on HDFC Bank, KSSIDC Industrial Area branch, Mahadevapura, Bengaluru. The same was returned with an endorsement for "funds insufficient". The fact of return of Cheque was brought to the notice of the Complainant dtd.16.09.2014 by HDFC Bank.
5. The Complainant further submitted that he caused Legal Notice through his counsel on 15.10.2014 by RPAD to the Accused. In the Legal Notice the date of notice was mentioned as 15.10.2011 instead of 15.10.2014. Due to the typographical error, the date was wrongly mentioned as 15.10.2011. Hence, another notice was issued through RPAD on 16.10.2014 for rectification of Legal Notice which was sent on 15.10.2014. The Legal Notice dtd.15.10.2014 was served upon the address of the Accused on 16.10.2014 and the rectification notice was served on 17.10.2014. Inspite of service of series notices, the Accused had not come forward to fulfill 5 CC.No.50603/2015 the demand of the Accused. Therefore, the contention of the Complainant that the accused deliberately issued the Cheque in favour of the Complainant knowingly the fact of insufficient funds in her account. Therefore, the Complainant prays to convict the Accused and grant compensation.
6. The cognizance for offence was taken of my learned predecessor. The criminal case came to be registered against the accused. The summons was issued to the accused. The accused in obedience of the summons appeared before the Court and enlarged on bail.
7. The substance of the accusation was framed, read over and explained to the accused in the language known to her by the learned predecessor of this Court. The accused pleaded not guilty and claimed to try the case. Hence, the case was posted for complainant's evidence.
8. The Complainant got examined himself as PW-1 and got marked 8 documents as Ex.P.1 to Ex.P.8. Ex.P.9 document was marked through confrontation during the cross- examination of DW1. The Accused got examined herself as DW1. Ex.D.1 document w as marked through confrontation in the cross-examination of PW1.
6 CC.No.50603/2015
9. The statement as required under Section 313 of Cr.P.C. was recorded. The accused denied all the incriminating evidence appeared against her.
10. I heard the Arguments of both side. In addition to the oral evidence, the learned counsel for the Complainant has filed the notes of arguments.
11. Now the following points that arise for the consideration of this Court are :
1. "Whether the Complainant proves the cheque issued by the accused person dishonoured with an endorsement as "funds insufficient"
and inspite of service of legal notice and demand the accused person failed to pay the cheque amount within stipulated period as such she has committed an offence punishable under Section 138 of Negotiable Instruments Act?"
2. What order ?
12. My answer to the above points are as follows :
POINT No.1 : In the affirmative POINT No.2 : As per final order for the following;
REASONS
13. POINT No.1 - The PW1 in the cross-examination deposes that he is a private employee. The 2nd paragraph of the cross-examination of the PW1 shows that the parties of this 7 CC.No.50603/2015 case negotiated and established transaction to purchase a machinery worth of Rs.16,00,000/-. According to the that negotiation, the Accused bound to supply the said machine. As advance amount, the Complainant paid sum of Rs.3,00,000/-. The above said answers have come from the mouth of PW1 for the suggestion question asked by the Accused. Therefore the said answers concrete the transaction. But only suggestion of the Accused is that the Complainant himself failed to mobilize the machine amount. Hence, the Accused did not supply the machine. But the said suggestion is denied.
14. The evidence shows that the transaction took place on 5.4.2010. After cancellation of the transaction, the Accused issued two Cheques for sum of Rs.3,00,000/-. In addition to said two Cheques, the Accused also has given Pay Order for sum of Rs.1,00,000/-. But the parties have compromised the matter for sum of Rs.25,000/-. The Accused paid the said amount of Rs.25,000/- to the account of the Complainant through Cheque. The said answers have come from the mouth of the DW1 during the cross-examination. However, the Complainant says that the transaction of Rs.25,000/- is other than the transaction of this case. The evidence shows that the Accused paid amounts from 15.12.2015 to 30.12.2015. The 8 CC.No.50603/2015 said document marked as Ex.D.1. According to the PW1, the transaction of amount of Rs.25,000/- is unconnected or unconcerned to the present case. Hence, said facts have not been reflected. But the defence of the Accused is that the said amount of Rs.25,000/- was paid in that transaction after compromise. The final suggestion of the Accused is that the Complainant misused her blank Cheques. But the suggestions are also denied.
15. The bottom lines of the cross-examination appeared in the 4th paragraphs show that except present transaction, the Complainant and Accused are not involved in any other transaction. Therefore, it seems that except this transaction, no other transaction is in existence between the parties. The evidence of the PW1 is little bit inconsistent. Because in early part of his cross-examination he has deposed that except this transaction he participated in another transaction with the Accused. In that event only, sum of Rs.25,000/- was credited to his account. But in the conclusion portion of his cross- examination admitted that except this transaction, he has no other transaction with the Accused. It for the Complainant to clarify under what circumstance and under which transaction, 9 CC.No.50603/2015 a sum of Rs.25,000/- was credited. But the cross-examination of the PW1 does not clarify it.
16. Coming to the documentary evidence, the Ex.P.1 is the disputed Cheque for sum of Rs.1,00,000/-. The said Ex.P.1 Cheque shows that it has been issued in the name of Complainant for sum of Rs.1,00,000/-. The signatory of the said Cheque, is the authorized person to issue that Cheque. The Ex.P.2 is the endorsement which indicates that on presentation of the said Cheque was dishonoured for "funds insufficient". Ex.P.3 is the Demand Notice issued u/Sec.138
(b) of N.I. Act. No similarity is found in the signature found in the Ex.P.4 and Ex.P.1. Ex.P.5 is the rectified legal notice dtd.16.10.2014. The said notice was issued to rectify the mistake appeared in the earlier notice. The date of the demand notice was mentioned as 13.10.2011 instead of 15.10.2014. The said mistake may be accepted as true due to oversight. Ex.P.8 is the acknowledgment. Ex.P.6 and Ex.P.7 are the Postal receipts. Ex.P.9 is the M.O.U. The said documents are enough to prove that the Accused participated in material supply transaction with the Complainant and the Cheque of the Accused has gone to the custody of the Complainant. 10 CC.No.50603/2015
17. To rebut the evidence, the Accused got examined herself as DW1. The evidence of PW1 shows that she got married with one Prakash in the year of 2006. Prior to the marriage, the husband of the Accused was employee in Sahara Enclosure. At that time, the Accused was a teacher working at Chickballapura. Thereafter, the husband of the Accused had quit that job and reconstructed another firm namely Sahara Technologies and he told to the DW1 to be become Proprietor of that company. The husband of the Accused started that company in the pretext of deduction of tax, availability of stipend, easy interest etc. Therefore, the husband of the Accused commenced Sahara Technologies in her name and she became its Proprietor. But, the husband of the Accused did not allow to participate in the said business. Therefore, her husband did not exchange any information of that company and he did not allow her to participate in any function etc. The entire transaction was used in the name of Accused. Therefore, her husband told to give many Cheques for the transaction. Therefore, the Accused had signed 10 -12 blank Cheques and handed over to her husband. She further deposes that she does not know the actual nature of transaction between Complainant and Sahara Technologies. After giving birth to her kid, she resigned earlier post. Thereafter rejoined for lecturing 11 CC.No.50603/2015 post in the year 2009 at K.R. Puram. Therefore, she alleges against her husband stating that he misused the Cheques of Sahara Company in the name of the Accused and issued in favour of Complainant deliberately to cause inconvenience to her.
18. In the chief-examination the DW1 further says that her husband and Complainant were entered into an agreement to purchase machinery. But, the parties did not comply the conditions of the agreement. Hence, the agreement is extinguished automatically. Therefore the contention of the Accused is that since the agreement was not completed, she or her husband are not liable to pay any amount to the Complainant. But the DW1 deposes in the evidence that she advised her husband to compromise the matter. Therefore she pledged her ornaments for consolidation amount and she was ready to pay amount. Thereafter, she paid a sum of Rs.25,000/-. The final defence of the Accused is that though she or her husband are not liable to pay the amount only to avoid legal proceedings or prosecution she consolidated the amount and compromised it.
19. The evidence of DW1 completely shows that her husband and Complainant were participated in the transaction 12 CC.No.50603/2015 and the husband of the DW1 established one company namely Sahara Technologies. The said company was commenced in the name of Accused. But thereafter due to matrimonial dispute, the Accused and her husband segregated each other and whereabouts of her husband is not known to DW1 according to her. Therefore, she expressed her helplessness to examine her husband as witness. However, the DW1 has not produced any believable document for winding up of Sahara Company or to believe that her husband living separately from many years. The DW1 admits that the Ex.P.9 - M.O.U. was executed in between Complainant and her husband. The 3rd paragraph of the cross-examination of DW1 shows that one C.C.No.21854/2011 was filed against the Accused in the year of 2011. But the DW1 says that the fact of that case was concealed to her knowledge. But however, the DW1 deposed inconsistent evidence stating that in view of compromise, she issued one banker Cheque for sum of Rs.2,00,000/-. Suppose, no transaction was taken place between the parties why should the Accused issued Cheque and compromise the matter. The Ex.P.9 was marked through conformation. Therefore the execution of M.O.U. is proved. She produced one document. It is marked as Ex.D.1 i.e., statement of account from 1.12.2015 to 13.12.2015. The said document is enough to prove that the 13 CC.No.50603/2015 Accused company had business relationship with the Complainant.
20. Therefore, even though the DW1 deposed evidence, it is not free from contradiction. The presumption u/Sec.139 is a statutory presumption that cannot be rebutted only on the basis of mere explanation. The DW1 says that whereabouts of her husband is not known to her. This type of defence is not called as cogent evidence. The defence of the Accused is that her husband misused the signed Cheque and handed over to the Complainant. It is very difficult to presume that when the relationship between husband and Accused is strained, she could not put her signature in blank Cheque and handed over to her husband. Therefore these types of defence are totally not fit to believe as true.
21. The nature of the offence u/Sec.138 of N.I. Act is based on documents. Ex.P.1 instrument has gone to the possession of Complainant. The Accused has not taken any legal action against her husband even after misuse of her Cheque. Though the Accused is a Lecturer in a college, but she is not a permanent employee. The evidence shows that she is a guest-lecturer. Therefore, the service rules and regulations are not applicable to the Accused. She utterly failed to rebut the 14 CC.No.50603/2015 presumption. Therefore, the Point No.1 is answered in the Affirmative.
22. POINT No.2 : In view of discussion held in Point No.1, I proceed to pass the following :
ORDER Acting under Section 255 (2) of Cr.P.C. the accused is hereby convicted for the offence punishable under section 138 of Negotiable Instrument Act by sentencing to pay fine of Rs.1,55,000/- (Rupees One Lakh and Fifty-five Thousand only). Out of which, Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) shall be paid as compensation to the Complainant in term of Sec.357 (1) of Cr.P.C and Rs.5,000/- (Rs. Five Thousand only) shall be paid to the State Ex-Chequer as fine. In default of payment of fine accused shall suffer simple imprisonment for a tenure of 3 months.
The bail bonds executed by the accused stands continued.
Office is directed to comply the Sec.363 (1) of Cr.P.C.
(Dictated to the Stenographer, transcript computerized by her, revised corrected and then pronounced by me in the open Court on this the 1st day of December, 2018) (KAMALAKSHA.D), LVIII ACMM, BENGALURU 15 CC.No.50603/2015 ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 Mr.K.T. Anand
2. Documents marked on behalf of complainant:
Ex.P.1 Cheque Ex.P.1(a) Signature of the Accused Ex.P.2 Bank endorsement Ex.P.3 Office copy of Legal Notice Ex.P.4 Postal acknowledgment Ex.P.5 Rectification notice Ex.P.6 & Ex.P.7 Postal receipts Ex.P.8 Postal acknowledgment Ex.P.9 Memorandum of Understanding
3. Witnesses examined on behalf of Accused :
D.W.1 Mrs. Vijaya B.
4. Documents marked on behalf of Accused :
Ex.D.1 Statement of accounts
(KAMALAKSHA.D),
LVIII ACMM, BENGALURU