Bangalore District Court
Smt.Arti Mehta vs M/S Powertronix Systems Pvt Ltd on 6 September, 2016
IN THE COURT OF THE XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY
Dated this the 6th day of September 2016
PRESENT: B. DILEEP KUMAR B.Com., LL.B.,
XX ADDL. C.M.M. Bangalore.
C.C.No.34043/2010
Complainant : Smt.Arti Mehta,
Aged about 36 years,
W/o Rashmikanth,
Proprietrix of M/s Simandhar Lamination,
No.906/608,
Doddanna Indl.Estate Main Road,
21st Corner, Near Peenya 2nd Stage,
Bangalore - 560 091.
(Represented by Sri.Narayanamurthy- Advocate)
Vs.
Accused : 1. M/s Powertronix Systems Pvt Ltd.,
Represented by its Managing Director,
2. Sri. Ramesh,
Director, M/s Powertronix Systems Pvt Ltd.,
3. Sri.Dilip,
Director, M/s Powertronix Systems Pvt Ltd.,
(All are carrying on business at No.13/29,
3rd Cross, Marappanapalya Industrial Suburb,
Yeswanthpur, Bangalore - 560 022).
(Represented by Sri.U.J.Hari Prasad & Associates -
Advocate)
2 C.C.34043/2010
Offence complied of : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused No.1 to 3 Convicted
Date of Order : 06-09-2016
JUDGMENT
The complainant has filed this complaint U/S. 200 of Cr.P.C., against the accused alleging that the accused has committed the offence punishable U/S.138 of Negotiable Instruments Act ( in short for "N.I. Act").
2. The gist of the complaint is as follows;
Complainant is carrying a business in the name as mentioned in the cause title. Accused No.1 is Private Limited company and accused No.2 and 3 are the directors and signatories of the cheques. Accused have purchased materials from complainant through invoices;
1. Invoice bearing No.045 dated 09.06.2009 Rs. 27,447/-
3 C.C.34043/2010
2. Invoice bearing No.047 dated 11.06.2009 Rs.1,16,948/-
3. Invoice bearing No.048 dated 11.06.2009 Rs. 43,131/-
4. Invoice bearing No.049 dated 13.06.2009 Rs. 53,891/-
Towards repayment of the said debt accused issued four cheques amounting to a sum of Rs.3,31,393/- through the cheques;
1. Cheque bearing No.702538 dated 28.07.2009 for Rs. 27,447/-,
2.Cheque bearing No.702539 dated 28.07.2009 for Rs. 1,55,647/-,
3. Cheque bearing No.702548 dated 28.07.2009 for Rs. 53,019/-,
4. Cheque bearing No.358009 dated 31.12.2009 for Rs. 95,280/-, Out of which cheques bearing No.702538, 702539 and 702548 are drawn on Vijaya Bank, Rajajinagar, Bangalore and the cheque bearing No.358009 drawn on Corporation Bank, Basaveswaranagar Branch, Bangalore. Complainant presented the cheques bearing No.702538, 702539 and 702548 for encashment through her banker i.e., Karur Vysya Bank Ltd., Rajajinagar Branch, Bangalore. The said cheques returned with endorsement "Payment Stopped By Drawer"
on 29.01.2010 and the cheque bearing No.358009 returned with endorsement "Funds Insufficient" on 09.02.2010. Thereafter, 4 C.C.34043/2010 complainant got issued legal notice to the accused on 13.02.2010 and the said notice served on the accused. Accused issued reply to the said notice. Hence, complainant filed this complaint.
3. After filing this complaint, case was registered as P.C.R. and sworn statement of the complainant was recorded. After taking cognizance case was registered in Crl.Reg.No.III and summons was issued to accused. Accused appeared through counsel and released on bail. Plea was framed, accused pleaded not guilty and claims for trail and then case posted for complainant evidence.
4. In order to prove the case, complainant' s Special Power of Attorney examined as PW.1 and marked in total twenty one documents as Ex.P.1 to Ex.P.21 and closed her side. The statement of accused under section 313 is framed, read over and explained to the accused. The defence of the accused is of total denial. Further, accused not chooses to lead evidence.
5. In this case, the evidence on record shows that summons trial procedure was adopted and not summary trial. As per the judgment passed by their lordships in Cr.R.P. No.1585/2009 on 12.03.2013 of 5 C.C.34043/2010 Hon'ble High court of Karnataka, conducting Denova trial does not arises.
6. Heard the Learned Counsel for complainant. Learned Counsel for accused filed written argument.
7. Now the points that arise for my consideration are as follows;
POINTS
1. Whether the complainant has made out that accused issued four cheques for a sum of Rs.3,31,393/- to discharge the legally enforceable debt due to the complainant and on presentation, all the cheques were dishonoured reported with an endorsements as "Payment Stopped By Drawer" & "Funds Insufficient " and you do not make payment of the amount of the same within the time stipulated after issuance of statutory notice and thereby you have committed an offence punishable under section. 138 of N.I. Act.?
2. What Order?
Now my answer to the above points is as follows;
1. Point No.1: In the affirmative
2. Point No.2: As per final order for the following;6 C.C.34043/2010
REASONS
8. POINT No.1: Complainant filed this complaint against the accused alleging that accused has committed offence punishable under section 138 of Negotiable Instrument Act. Complainant contended that, complainant is carrying a business in the name as mentioned in the cause title. Accused No.1 is Private Limited company and accused No.2 and 3 are the directors and signatories of the cheques. Accused have purchased materials from complainant through invoices. Towards repayment of the said debt accused issued four cheques amounting to a sum of Rs.3,31,393/- through the cheques. The said cheques returned with endorsement "Payment Stopped By Drawer" and "Funds Insufficient". Thereafter, complainant got issued legal notice to the accused and the said notice served on the accused. Accused issued reply to the said notice. Hence, complainant filed this complaint.
9. Accused cross examined PW.1 at length, but not led evidence. Special Power of Attorney is created for the purpose of this case. Ex.P.16 to 19 invoices is not having the seal and signature of accused's firm. There is no procedure or condition with respect of repayment of amount. The cheques are issued for the purpose of 7 C.C.34043/2010 security and it was misutilized by complainant. Hence, prays to dismiss the complaint.
10. The Learned Counsel for the complainant submits that, complainant proved the case both by the oral and documentary evidence brought on record. Complainant clearly establishes the ingredients of section of 138 of Negotiable Instrument Act. The oral and documentary evidence placed by complainant is fully corroborated with each other, it shows the guilt of accused. Hence, prays to convict the accused.
11. Per contra, Learned Counsel for the accused submits that accused rebutted the presumption lies in favour of complainant. Apart from that accused clearly establishes the defence taken by him. The oral and documentary evidence of complainant is not corroborated and the same is consisting of number of variations, which shows that the case of complainant is false. Therefore, complainant failed to establish the case. Hence, prays to acquit the accused.
12. As pointed out that accused has taken several defence in his support. It is burden on the accused to rebut the presumption. If 8 C.C.34043/2010 accused succeeds in rebutting the evidence and presumption lies in favour of complainant, accused will entitle for acquittal. At the same time if accused failed to rebut the presumption, then the benefit of presumption goes in favour of complainant and accused is liable for conviction.
13. The complainant in order to prove her case examined Special Power of Attorney and produced, cheques, endorsements, legal notice, postal receipts, Postal acknowledgement, letter, authorization letter and complaint. The said documents marked as exhibits as mentioned in the annexure.
14. Complainant in order to prove her case examined Special Power of Attorney as PW.1 and reiterated the averments of complaint. Complainant contended that, complainant is carrying a business in the name as mentioned in the cause title. Accused No.1 is Private Limited company and accused No.2 and 3 are the directors and signatories of the cheques. Accused have purchased materials from complainant through invoices. Towards repayment of the said debt accused issued four cheques amounting to a sum of Rs.3,31,393/- in favour of the complainant. Complainant in support of her oral evidence produced the cheques issued by accused. The said cheques 9 C.C.34043/2010 is marked as Ex.P.1 to 4 and Ex.P.1(a) to 4(a) are the signatures of accused. During the cross examination of PW.1, accused No. 2 & 3 suggested that Ex.P.1, 3, 5 & 7 cheques belongs to their company and Ex.P.1(a) , 3(a), 5(a) & 7(a) are their signatures. They have taken defence, but it is their burden to prove the same. At this stage, complainant prima-facie established that the accused No.2 and 3 issued four cheques in favour of the complainant.
15. Complainant further deposed that, she presented the cheques for encashment through her bank and same returned with endorsements "Payment Stopped By Drawer" & "Insufficient Funds". Thereafter, she intimated the same to accused, but accused not paid the amount. Hence, complainant issued legal notice to the accused through his counsel. The said notice served on accused. Accused replied to the said notice. In support of her oral evidence, complainant produced copy of the endorsements issued by bank which marked as Ex.P.2, 4, 6 & 8. In the said endorsement the reason for dishonor shown as "Payment Stopped By Drawer" & "Insufficient Funds". Complainant produced copy of the legal notice which marked as Ex.P.9. In the said notice complainant requested the accused to pay the amount within 15 days otherwise she is going to lodge complaint. Complainant produced postal acknowledgements 10 C.C.34043/2010 which marked as Ex.P.10 to 12. Wherefore, the oral evidence of complainant is fully corroborated with the documentary evidence.
16. On careful examination of all the documents of complainant it is very clear that complaint is filed well within time. He followed all the requirements of negotiable instrument act. The presumption under section 139 of the Act is a presumption of law; it is not a presumption of fact. This presumption has to be raised by the court in all the cases once the factum of dishonor is established. The onus of proof to rebut this presumption lies on the accused. The standard of such rebuttable evidence depends on the facts and circumstances of each case. Such evidence must be sufficient to prove the case. Therefore a mere explanation is not sufficient to rebut this presumption of law.
17. As per negotiable instrument act the presumption is in favour of holder of cheque. Here the holder of cheque is complainant and presumption is in favour of complainant. It is burden on the accused to rebut the above presumption. As per section 118 of Negotiable Instrument Act, presumption has to be raise by the Court in all the cases once the factum of dishonour is established, but it is rebuttal presumption. The onus of proof to rebut this presumption 11 C.C.34043/2010 lies on the accused. The standard of such rebuttal evidence depends on the facts and circumstances of each case. Such evidence must be sufficient, cogent and should prove beyond any reasonable doubt. Therefore, a mere explanation is not enough to repel this presumption of law. Therefore, it is to appreciate whether accused rebut the evidence or not?
18. Accused cross examined PW.1 at length, but not led evidence. Special Power of Attorney holder created Ex.P.16 to 19 invoices for the purpose of this case and it is not having seal and signature of accused's firm. There is no procedure or condition with respect of payment of amount. The cheques are issued for the purpose of security and it was misutilized by complainant. It is burden on the accused to establish the said aspect.
19. This court has carefully gone through the entire case papers. In this case accused not led evidence. Before filing of this complaint, complainant issued legal notice to the accused on 13.02.2010 as per Ex.P.9 and the said notice was served on the accused. Then accused also issued reply to the said notice. Here, both Ex.P.9 and Ex.P.13 are important for appreciation of this case. 12 C.C.34043/2010
20. In Ex.P.9 legal notice, complainant clearly stated that, accused issued four cheques for repayment of the amount. Out of 4 cheques, 3 cheques returned with endorsement "Payment Stopped By Drawer" as per endorsement dated 29.01.2010 and another cheque returned with endorsement "Funds Insufficient" dated 09.02.2010. Therefore, complainant called the accused to pay the cheques amount or Rs.3,31,393/- within 15 days, otherwise he is going to take action U/S.138 of Negotiable Instrument Act. Accused as per Ex.P.13 replied to the said notice. The said reply notice reads as follows;
Mr. Narayanamurthy, Advocate, No.26, "Prathana" 1st Main, Hanumaih Layout, Sanjaynagar, Bangalore - 560 094 Phone No:
Mobile:9844205133 Sub : Payment- Simandar Lamination, Regarding Ref. : Your reference: letter dated 13.02.2010.
Respected Sir, We refer to you above notice on the said subject.
Due to slow down in economy our funds has been stuck in market with all our MNC's clients. We have purchased Lamination from M/s Simandar Lamination and used in 13 C.C.34043/2010 manufacturing of Isolation Transformer. The entire sale what we made out of this lamination to our customer has been rejected because of poor working performance Transformer and also payment not received. We have the Lamination with us which we want to return to Simandar lamination.
we have already orally inform to them not to present the cheque as our CC limit was due for renewal still they presented we have cleared some cheque with difficulties and same unpaid and returned by bank then only we have issued the stop payment to bank and also inform.
At present we request you to give us time till July-2010 to clear all overdue outstanding. Or else take back the Lamination what is available with U/S We request you to bear with us till such time. We regret for the inconvenience caused to you in this regard.
We once again request your good self to give us time July 2010 and oblige.
Thanking you, As per the above reply, accused clearly admitted that they purchased materials from complainant and they are having the same with them. Accused contended that, they orally inform the complainant not to present the cheques. This aspect shows that, cheques were issued for the purpose of repayment of the amount.
Accused admitted about the liability which stated in Ex.P.9 legal 14 C.C.34043/2010 notice. Accused requested to grant some time for repayment.
Therefore, further more discussion in this case is not required.
Accused through his Ex.P.13 reply clearly admitted that, they have to pay amount mentioned in Ex.P.9 legal notice and issued the cheques in question. Therefore, accused failed to rebut the presumption which lies in favour of the complainant.
21. In this case plea of the accused was recorded as per section 251 of Cr.P.C. Accused pleaded not guilty. As per section 251 of Cr.P.C. accused have to state about their defence. Here, except pleading not guilty accused have not stated their defence at the time of recording plea. As per the decision reported in AIR 2014 SC 2528 (Indian Bank Association V/s Union of India), Crl. Petition No.8943/2010 M/s.Mess Transgare Pvt V/s Dr .R. Parvathareddy and in Rajesh Agarwals case, Wherein, it is held that; " Accused cannot simply say " I am innocent " or " I pleaded not guilty ".
Here, also accused not stated any defence. They simply pleaded not guilty. Inspite of that, this court has given an opportunity to the accused to prove the case, but accused failed to rebut the presumption.
15 C.C.34043/2010
22. In view of the above all aspect this court is of the firm opinion that, the complainant clearly proved her case both by oral and documentary evidence. Complainant fulfilled all the ingredients of section 138 of Negotiable Instrument Act. Once the said provision is complied, then the presumption U/S.139 of Negotiable Instrument Act supports her. It is rebuttal presumption, but the accused failed to rebut the same. They have taken defence in this case, but not proved the same. Their defence is consisting of contradiction. Therefore accused failed to establish their case. Hence complainant clearly proved point No.1. Wherefore, I answered point No.1 in the affirmative.
23. POINT NO.2: In view of the above observation this court proceed to pass the following;
ORDER Acting U/S 255(2) of Cr.P.C., accused No.1 to 3 are hereby convicted for the offence punishable U/S 138 of N.I. Act and accused No.1 to 3 are sentenced to pay a fine of Rs.4,60,000/- (Four Lakhs Sixty Thousand only). In default thereof accused No.2 & 3 shall suffer simple imprisonment for 3 (Three) months.
16 C.C.34043/2010
The fine if realized, Rs.4,50,000/- (Four Lakhs Fifty Thousand only). there from shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/- (Ten Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
The bail bond of the accused No. 2 & 3 stands cancelled after 6 months.
Office to supply the copy of this Judgment to the accused No. 2 & 3 immediately on free of cost.
{Dictated to the stenographer, transcribed and computerized by her, corrected and then signed by me and then pronounced in the open court on this 6th day of September 2016} (B.DILEEP KUMAR), XX ACMM, Bangalore.
ANNEXURE List of witnesses examined on behalf of the prosecution:
P.W.1 Smt.Arti Rashmikanth Mehta
By Special Power of Attorney
Sri.Rashmikanth Mehta
17 C.C.34043/2010
List of Exhibits marked on behalf of the prosecution:
Ex.P.1, 3, 5 & 7 Cheques Ex.P. 1(a), 3(a), 5(a) & 7(a) Signatures of the accused Ex.P. 2, 4, 6, & 8 Bank endorsements Ex.P. 9 Copy of the legal notice Ex.P. 10 to 12 Postal acknowledgements Ex.P. 13 Reply Ex.P.14 General Power of Attorney Ex.P.15 Complaint Ex.P.16 to 19 Invoices Ex.P.20 Special Power of Attorney Ex.P.21 Photo state of the Simandhar Lamination List of witnesses examined for the defence:
-Nil-
List of documents marked on behalf of defence:
-Nil-
XX A.C.M.M., Bangalore.18 C.C.34043/2010
06.09.2016 For judgment Judgment pronounced in open court, vide separate order;
ORDER Acting U/S 255(2) of Cr.P.C., accused No.1 to 3 are hereby convicted for the offence punishable U/S 138 of N.I. Act and accused No.1 to 3 are sentenced to pay a fine of Rs.4,60,000/- (Four Lakhs Sixty Thousand only). In default thereof accused No.2 & 3 shall suffer simple imprisonment for 3 (Three) months.
The fine if realized, Rs.4,50,000/- (Four Lakhs Fifty Thousand only). there from shall be paid to the complainant as a compensation, remaining fine amount of Rs.10,000/- (Ten Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
The bail bond of the accused No. 2 & 3 stands cancelled after 6 months.
Office to supply the copy of this Judgment to the accused No. 2 & 3 immediately on free of cost.
(B.DILEEP KUMAR), XX ACMM, Bangalore.
19 C.C.34043/2010