Bangalore District Court
M/S. Merino Industries Ltd vs Persons: 1. M/S Rich Wood on 16 November, 2021
IN THE COURT OF XXXVIII ADDL.CHIEF METROPPOLITAN
MAGISTRATE, BENGALULRU
Present : Sri. P. Shivaraj,
B.Com. LL.B.
XXXVIII A.C.M.M Bengaluru
Dated this the 16th day of Novemnber2021
C.C.NO: 9581/2016
COMPLAINANT: M/s. Merino Industries Ltd.,
No. 325,SLV Saw Mills Compound,
Opp. Shell Petrol Bunk, Mysuru Road,
Bengaluru560039.
Rep.by its Zonal Manager(Finance)
Mr. Umesh Taparia.
(By.Sri.N.V.Muralidhar Advocate)
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ACCUSED PERSONS: 1. M/s Rich Wood,
No. 70/1F, Kaikondar Halli,
Sarjapur Road, Near Wipro Corporate Office,
Carmelaram Post, Bengaluru560035.
Rep.by its Partner Mr. Muhammad Salih.
2. Mr. Muhammed Salih, Partner,
M/s Rich wood,
No. 70/1F, Kaikondar Halli,
Sarjapur Road, Near Wipro Corporate Office,
Carmelaram Post, Bengaluru560035.
[By Sri.K.Kiran Kumar Advocate]
Offence alleged: U/s/ 138 of N.I Act of 1881
Plea of the accused: Pleaded not guilty
Final Order: Accused no. 02 is convicted
Date of Judgment: 16112021
(P. SHIVARAJ)
XXXVIII A.C.M.M.
Bengaluru.
2 C.C.No.9581/2016
JUDGEMENT
The complainant company is a public limited company, registered under the companies Act of 1956. The authorized person of the complainant company Mr. Umesh Taparia Zonal Manager (Finance) filed the private complaint against the A2 alleging that, A2 has committed the offence punishable under section 138 of Negotiable Instrument Act, 1881( For short N.I.Act,1881).
2. Complainant case is as follows:
Complainant company is a public limited company and it is dealing with the business of manufacturing of Laminate and Plywood sheets. A2 is the partner of A1 firm and they are the regular customer of the complainant company. Complainant company has supplied and delivered the materials as per order placed by the A2 and they have accepted the same. As per the running account of the A2 maintained by the complainant company, A2 was due to pay of Rs.18,33,44920/ to the complainant company. A2 has confirmed the aforesaid liability through Email dt:
31.12.2015.
03. In order to discharge a part/portion of aforesaid liability A2 has issued cheque bearing no.929117 dt:05.02.2016 for Rs.6,29,297/ in favour of complainant company, which was drawn on Canara Bank, Doddakannahally Branch, Bengaluru. On presentation of the aforesaid cheque for realization by the complainant company 3 C.C.No.9581/2016 through its banker, it was returned dishonoured, with an endorsement "Funds Insufficient" in the account of A2 to that effect complainant company has received the cheque return memo from its banker on 06.02.2016. Complainant company informed the aforesaid fact to the accused persons and it has issued legal notice to them on 22.02.2016 with a request and demand to repay the cheque amount and the said notice was served to A2 on 26.02.2016. A2 has failed to repay the cheque amount. Complainant company alleged that, A2 has intentionally not maintained the sufficient amount in his bank account to honour the cheque. Inasmuch, A2 has committed the offence punishable under section 138 of N.I.Act, and complainant company prays this court to punish the A2 and to award the compensation.
04. Originally the private complaint was filed before Hon'ble XXVACMM court Bengaluru. The learned presiding officer of that court, took the cognizance for the offence punishable U/s 138 of N.I.Act and recorded the sworn statement of the authorized person of the complainant company. On finding Primafacie case, process was issued to the A2.
05. After service of the summons to A2, he appeared before XXVACMM court through his counsel, and he got released on bail, papers of the prosecution were supplied to A2. The substance of the accusation is readout to him, in 4 C.C.No.9581/2016 the language known to him, he pledged not guilty and submit that he is having defense to make before the XXV ACMM Court.
06. In order to prove the guilty of the accused persons, authorized person Mr.Umesh Taparia Zonal Manager (Finance) of the complainant company adopted his evidence addused at persummoning stage as his examinationinchief and he got marked 07 documents which are at Ex.P1 to 07 marked.
Later as per special notification no. ADM/1/5/2020 dt.26.05.2020, case is transferred to this court. A2 has not turned up before this court to record his statement U/s 313 Cr.P.C. There is no material on record to believe that A2 is prevented from appearing before this court. He has not chosen to lead his evidence, Hence it is taken as Nil.
07. As per order sheet note, case was posted for cross of PW1 on 06.11.2019. In spite of sufficient opportunity extended to the accused persons, they have not chosen appear before this court and they have not chosen to cross examine the PW1. Order sheet note reveals that, accused persons have not appeared before the Mediation Center, Bengaluru. Finally, cross of PW1 is taken as nil on 09.09.2021.
08. As per the order sheet note counsel appearing for the accused persons filed his retirement memo on 5 C.C.No.9581/2016 06.10.2019 and also on 23.09.2021 along with the postal receipt, for having sent the retirement notice to the accused persons and it was served on the accused persons on 24.09.2021 and counsel for the accused persons (on record) is permitted to retire from the case. Court notice is also send to the accused persons, but they have not chosen to appear before this court, they have failed to engage the counsel of their chose to proceed with the case. It establishes that, they are not interested to proceed with the case.
09. Both the sides are permitted to file their written arguments on merits. The Learned counsel appearing for the complainant company, filed the written arguments on merits. I have verified the same, along with the materials available on record.
10. The following points that arise for my determination: :P O I N T S:
1. Whether the complainant company proves beyond reasonable doubt that, the accused persons have committed the offence punishable U/s 138 of the N.I Act, as alleged in the Complaint?
2. What Order?
11. After carefully going through the materials available on record and taking into consideration of facts and circumstances of the case, my finding to the above points are as follows:
6 C.C.No.9581/2016Point No.1: In the affirmative Point No.2: As per the final order.
REASONS
12. PW1 being the Zonal Manager (Finance) and authorized person of the complainant company, he reiterated the complainant averments in his sworn statement affidavit, which is treated as his examinationinchief.
13. Complainant has relied on Ex.P3 original cheque, Ex.P4 cheque return memo, Ex.P5 office copy of the notice issued to the accused persons, Ex.P6 and 7 are the postal acknowledgment. The aforesaid documents reveals that, complainant company has complied all the ingredients of section 138 of N.I.Act and it has filed the complaint within the stipulated period.
14. Accused no.02 has not denied the issuance of cheque to the complainant company as per the Ex.P3 and he has not denied his signature on the same which is at Ex.P3(a). Inasmuch, the initial statutory presumption attached to the cheque as per Sec.118(a) and 139 of NI Act has to be raised in favour of the complainant company.
15. In order to rebut the initial statutory presumption attached to the cheque, even after availing sufficient opportunity from the court, A2 has not chosen to appear before this court and he has not chosen to cross examine the PW1. The oral and documentary evidence relied on by the 7 C.C.No.9581/2016 complainant company and the initial statutory presumption attached to the cheque remains unrebuttered, and un impeached. Such being the case, there is no material on record to disbelieve the version of the complainant company. By considering the conduct and approach of A2 who remain abstain before this court, it clearly establishes that, he has accepted his guilty as alleged by complainant company. Added to it, the counsel appearing for the complainant submitted in his written argument that after filing of the complaint accused no. 02 has paid Rs.3,50,000/ towards the entire claim amount of Rs.18,29,279/(under 03 cases) and he prays this court to adjust/deduct the payment made by the accused in the cheque amount related to this case.
16. It is also true that, while disposing the IA u/s 239 Cr.P.C the learned presiding officer of the XXVACMM court, had observed the aforesaid fact in the order dated:
07.12.2018. The aforesaid fact categorically establishes that, accused no.02 has acknowledge the existence of debt and his liability towards complainant company. After adjusting/deducting the payment of Rs. 3,50,000/ made by the A2 and as admitted by the complainant, A2 is liable to pay Rs.2,79,297/ to the complainant company. Further more A2 has failed to place the convincing evidence, situations, nor he has elicited any material facts from the mouth of PW1 to improbabilise the existence of alleged debt.
Considering and looking into the same I,am of the firm 8 C.C.No.9581/2016 opinion that, initial statutory presumption attached to the cheque cannot be said to have been rebutted by the A2. Hence with the aforesaid discussion based on the materials available on record and by considering the facts, conduct of A2 and by considering the attending circumstance of the case, I am answering this point in the affirmative.
17. Point No.2: In view of the reasons and discussion made above, I proceed to pass the following:
ORDER Exercising the power conferred U/sec 255(2) of Cr.p.c. accused no. 02 is convicted for the offence punishable U/s.138 of the Negotiable Installment Act,1881.
Accused no. 02 is sentenced to pay a fine amount of Rs.2,84,297/ (after adjusting/deducting the payment of Rs.3,50,000/ made by A2) to the complainant company, in default he has to under go simple imprisonment for a period of one year.
Out of the said fine amount, an amount of Rs.2,79,297/ is ordered to be paid to the complainant company as compensation. The remaining amount of Rs.5,000/ shall be confiscated to the state towards litigation expenses.
The bail bond and surety bond of accused no.02 shall continue for next 6 months as per Sec.437A of Cr.P.C.9 C.C.No.9581/2016
Office is directed to supply the free copy of this judgment to the A2 forthwith. (Dictated to the stenographer and transcribed and computerized by her, corrected by me and then pronounced by me in the open court on 16th day of November 2021) (P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.
ANNEXURES:
1) List of Witnesses Examined on behalf of Complainant:
PW.1 : Umesh Taparia
2) List of exhibits marked on behalf of Complainant:
Ex.P.1 : C/of Complaint.
Ex.P.2 : Authorization letter.
Ex.P.3 : Original Cheque.
Ex.P.4 : Cheque return memo.
Ex.P.5 : Office copy of legal notice.
Ex.P.6 &7 : Postal acknowledgment.
3) List of exhibits marked on behalf of the Accused persons: NIL
4) List of Documents Marked on behalf of the Accused persons: NIL (P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.10 C.C.No.9581/2016
Complainant and accused no.02 absent. There is no material on record to show that, accused is prevented from appearing before this court.
Considering the intention of Sec.353(6)(7) and 465 of Cr.P.C the judgment and order of the sentence is pronounced in the absence of the accused no.02 (Judgment pronounced in Open Court vide a separate Order) ORDER Exercising the power conferred U/sec 255(2) of Cr.p.c. accused no. 02 is convicted for the offence punishable U/s.138 of the Negotiable Installment Act,1881.
Accused no. 02 is sentenced to pay a fine amount of Rs.2,84,297/(after adjusting/deducting the payment of Rs.3,50,000/ made by A2) to the complainant company, in default he has to under go simple imprisonment for a period of one year.
Out of the said fine amount, an amount of Rs.2,79,297/ is ordered to be paid to the complainant company as compensation. The remaining amount of Rs.5,000/ shall be confiscated to the state towards litigation expenses.
The bail bond and surety bond of accused no.02 shall continue for next 6 months as per Sec.437A of Cr.P.C.
Office is directed to supply the free copy of this judgment to the A2 forthwith.
(P. SHIVARAJ) XXXVIII A.C.M.M. Bengaluru.
11 C.C.No.9581/2016