Bangalore District Court
M/S Rajdhani Extrusions vs M/S Tellus Telecom on 24 June, 2021
IN THE COURT OF II ADDL.JUDGE & ACMM, COURT
OF SMALL CAUSES, BENGALURU
(SCCH.13)
DATED THE 24th DAY OF JUNE 2021
PRESENT
SMT. DIVYASHREE.C.M., B.A.L, LL.M,
II Addl. Judge & ACMM,
Court of Small Causes,
Bengaluru
C.C.No.47522 OF 2010
Complainant : M/s Rajdhani Extrusions,
duly registered partnership
firm having its Office at
No.52/1, Lalbagh Road
Cross, Sudhamanagara,
Bengaluru560 027.
Reptd. by its partner
Sri.Ashok Bafna, 42 years,
S/o Dhingarmal Bafna,
R/a No.37, 3rd Cross,
3rd Block, Tyagarajanagara,
Bengaluru560 028.
(By Sri.D.C.Prakash
Advocate)
Accused : 1. M/s Tellus Telecom
Pvt.Ltd.
No.129, Hanumanthanagara,
Manchanayakanahalli,
BengaluruMysuru Main
Road, near Bidadi,
Ramanagara District
Bengaluru562 109
SCCH.13 2 CC.47522/2010
Reptd. By its Managing
Director Sri.Shashank Rao,
S/o Chintamani Krishnamurthy,
(By Sri.Mariswamy, Adv.)
2. Sri.Shahank Rao C.K.
Director,
M/s Tellus Telecom Pvt.Ltd.
Krishnayee # 96/97,
3rd Cross, Silver Oak Street,
24th Main Road, J.P.Nagara,
7th Phase, Bengaluru560 078.
(Abated)
3. Sri.Mohan Rao.C.K.
Director,
M/s Tellus Telecom Pvt.Ltd.
#807, 12th Main, 1st Stage,
Vijayanagara,
Mysuru570 017.
(By Sri.S.V.Subramanya,
Advocate)
4. Sri.Srinivas Rao Jadow,
Director,
M/s Tellus Telecom Pvt.Ltd.
#9/72, Chamarajapete,
1st Cross, Vittala Nagara,
Bengaluru560 018.
(By Sri.Vasanth Madhav
Advocate)
5. Sri. Badarinath Donthi
Srinivas, Director,
M/s Tellus Telecom Pvt.Ltd.
#792, 5th Main,
Raghavendra Block,
SCCH.13 3 CC.47522/2010
Srinagara,
Bengaluru560 050.
(By Sri.Vasanth Madhav
Advocate)
6. Srinivas Prasad Narayana,
Director,
M/s Tellus Telecom Pvt.Ltd.
#760, 5th Stage, BEML,
Rajarajeshwari Nagara,
Bengaluru560 098.
(By Sri.C.Mudduraj, Adv.)
7. Sri.Kanhiyalal Jangid,
Director,
M/s Tellus Telecom Pvt.Ltd.
# 18/19, 5th Cross, 1st Main,
Jnanajyothi Nagara,
Ullalu Road, Ring Road,
Behind SVK Mantap,
Bengaluru560 056.
(By Sri.Vasanth Madhav
Advocate)
The offence : U/S.138 of The Negotiable
complained of or Instruments Act
proved
Plea of the : Pleaded not guilty
Accused
Final order : Accused No.1, 4 6, & 7 are
convicted and accused No.3
is acquitted. Case against
accused No.2 is abated and
against accused No.5 is
SCCH.13 4 CC.47522/2010
dismissed.
Date of such order : 24.06.2021
JUDGMENT
This complaint under Section 200 of Cr.P.C. is filed alleging offence under Sec.138 of the Negotiable Instruments Act, 1881.
2. The complainant is a registered as partnership firm represented by its partner and the accused No.1 is a Private Limited Company represented by its Managing Director and accused No.2 to 7 are directors of the accused No.1 Company.
3. The brief facts of the complainant's case is that the complainant is a registered partnership firm engaged in sale of Ferrous and nonferrous metals required for industrial use and the accused company was in the manufacturing activities and was regularly obtaining the materials from the complainant's firm. The accused company was enjoying credit facilities with the complainant and they were in the habit of making deferred payments with respect to SCCH.13 5 CC.47522/2010 the materials purchased by the complainant. The complainant company had raised various invoices as and when the materials supplied to the accused company and the same were acknowledged by the accused company. The complainant approached the accused and brought to its notice when the outstanding payment to extent of Rs.53,05,931/. Adverting to the liability of the company accused company by holding member meeting unanimously resolved to clear the amount and on 02032010 wrote a letter admitting entire liability and agreed to make payments in the form of 12 post dated cheques and accordingly 12 cheques were issued. When the complainant presented 4 cheques through its banker CITI Bank, Jayanagar branch, Bengaluru on 07062010, the cheques were dishonored and returned with banker's endorsement as "Funds Insufficient" on 09 062021. Again as per the clear understanding and personal assurance of the director of the accused company, complainant presented other 6 cheques through the same banker of the complainant and to its shock SCCH.13 6 CC.47522/2010 and surprise all the cheques were dishonored and returned with the banker's note "Drawer's signature incomplete/in legible"
on 26062010. The present complaint is with respect to the 3 cheques bearing No.371494 dated 07062010 for the amount of Rs.5,35,572/, and cheque No.371495 for the amount of Rs.3,848349/, and cheque bearing No.371496 for Rs.5,00,814/ both dated 21 062010. All the three cheques are drawn on Bank of India, Cantonment branch.
4. After the dishonour of the cheques complainant issued legal notice dated 2906 2010 to accused No.1 to 7 through registered post with acknowledgment due and certificate of posting seeking upon the accused to pay complainant amount due from the accused informing the dishonour of the cheques issued by it. Even though the notice was duly served on the accused No.1,2,4 and 5 on 30062010 and the notice issued to the accused No.3, 6 and 7 were returned with an endorsement "Not Claimed, No such person and left" respectively. The accused showing SCCH.13 7 CC.47522/2010 contemptuous in difference towards notice sent to them and non payment has been made. As the accused did not make any arrangements with banker to repay the amount and because the dishonour of the cheques issued to the complainant shows its intention to evade the payment of the amount due to the complainant from the accused. The intentional failure of the accused made the complainant to file this complaint alleging offence under Sec. 138 of NI Act. The complainant has requested to punish the accused No.1 to 7 in accordance with law for the offence committed and to award double the amount covered by the cheques in favour of the complainant.
5. After filing of the complainant cognizance was taken by this court and sworn statement of the complainant is recorded. Again after taking cognizance against the accused for the offence punishable under Sec.138 of NI Act criminal case is registered and summons were issued to the accused.
SCCH.13 8 CC.47522/20106. After issuance of summons, accused No.3 to 7 have appeared before the court and obtained bail. The accused No.2 was reported to be dead. Subsistence of accusation were read over and explained to accused No.3 to
7. All of them have pleaded not guilty and submitted that they have defence to make. Hence the matter was posted for trial. The partner of complainant firm is examined as PW1 and the complainant has produced documents as per Ex.P1 to Ex.P73.
7. All the incriminating evidence were read over to the accused No.3 to 7 and the accused have denied the same and submitted that they have defence evidence on their behalf. C.K. Mohan Rao, accused No.3 was examined as DW1 and documents as per Ex.D1 to Ex.D15 are produced. After completion of the trial this court heard the arguments of the complainant and the accused. Both have submitted their arguments oral as well as in writing and furnished some citations in respect of their arguments.
SCCH.13 9 CC.47522/20108. On perusal of entire material evidence and documents available on record and by considering the arguments, the following points would arise for determination :
1. Has the complainant proves that Ex.P.1, 2 & 3 cheques were issued by the accused towards discharge of legally liable debt and on their presentation were dishonoured for the reason 'insufficient funds' and the accused failed to pay the cheque amount within the stipulated period and thereby committed the offence punishable under Section 138 of Negotiable Instrument Act?
2. What order?
9. On the basis of materials available on record and by considering oral and documentary evidence, my finding on the above points are as under:
Point No.1: Partly in the affirmative Point No.2: As per final order for the following:
REASONS
10. Point No.1 : It is the case of the complainant that it is a partnership concern SCCH.13 10 CC.47522/2010 engaged in sale of Ferrus and NonFerrus metals required for industrial use. It is also registered under the Karnataka Value Added Tax Act 2003 before the Assistant Commissioner of Commercial Tax, Bengaluru. The accused company is a registered company represented by its Managing Director, accused No.2 and the other accused are the Directors of the company who were responsible for conducting day today operations of the company and also involved in taking decisions of the company business.
11. It is stated that the accused company was in the manufacturing activities and was regularly obtaining materials from complainant form. The accused company was enjoying credit facilities with the complainant and was in the habit of making deferred payments in respect of supplies made to them. When the complainant approached the accused and brought to its notice with the outstanding payment which was due to the complainant was of Rs.48,55,929/, the accused held board SCCH.13 11 CC.47522/2010 meeting and a letter admitting the entire liability was written to the complainant on 02032010. The accused had agreed to make payments in the form of 12 number of postdated cheques and had issued the cheques. All the cheques issued in favour of the complainant came to be dishonored and in the present complaint, complainant has sought for punishing the accused in respect of 3 cheques issued in its favour.
12. The first cheque is for Rs.4,35,572/ dated 07062010 bearing No.371494 of the Bank of India, second cheque is for Rs.3,84,834/ dated 21062010 bearing No.371495 and the third cheque for Rs.5,00,814/ dated 21062010 bearing No.371496. All the three cheques were of Bank of India, wherein the accused company had its account. When these cheques were presented through complainant's bank, all the three cheques came to be dishonoured for the reasons insufficient funds on 0906 2010. Complainant has produced 3 cheques as per Ex.P1 to Ex.P3 and the bank endorsements SCCH.13 12 CC.47522/2010 are produced at Ex.P4 to Ex.P9. The complainant issued a demand notice to the accused as per Ex.P10 on 29062010 through registered post as well as certificate of posting. The demand notice to the accused No.1, 2, 4 and 5 were duly served whereas the notice issued to the accused No.3 was returned as 'not claimed' the notice sent to accused No.6 returned as 'there are no such person' and the notice issued to accused No.7 was returned as 'left'. The postal acknowledgments are produced at Ex.P16 to Ex.P19 and the unserved postal covers are produced at Ex.P20 & Ex.P21. The accused No.3 wrote reply to the demand notice on 09 032011 which is marked in connected CC.47524/2010 at Ex.P29 stating that he is not the Director of the accused company from 01102009. But the other accused did not replied to the said demand notice and the accused company did not make any arrangements to repay the amount due to the complainant.
SCCH.13 13 CC.47522/201013. In order to show the liability of the accused company, complainant has produced letters written by the accused company at Ex.P25 and Ex.P27, P.31 & P.33. In order to show its business complainant has produced VAT Registration Certificate and commodities list as per Ex.P28 & 29 and Ex.P32.
14. The letter written by the accused company in its letter head dated 10072010, 10072010 and 02032010 indicates that there was a business transactions between the complainant firm and the accused company and the accused company was due to the complainant firm and it is clearly admitted in this letters. With regard to the business transactions between complainant and the accused, the accused have no serious dispute. PW1 is crossexamined in length by the accused.
15. The first and foremost defence of the accused is that the complaint is not maintainable as partnership firm did not authorize the PW1 to present the complaint SCCH.13 14 CC.47522/2010 and to depose on behalf of the firm. When the accused raised the said defence, the complainant has produced a deed as per Ex.P37 which is shown as reconstitution of partnership deed. It has submitted by the complainant that being the partner of the complainant firm he has every authority to present the complaint and depose as partner of the complainant firm.
16. Another defence of the accused is that the accused No.2 who is the Managing Director of the company is the sole responsible and since he is dead this complaint is not maintainable.
17. Further as it is the claimed by the complainant that the accused No.5 is also responsible for the day today business of the company and complaint against accused No.5 is dismissed by this court; when the complaint is dismissed against one of the accused, the other accused cannot be held guilty for the alleged offences. It is also contended that as on the date of transaction, the accused No.4 and 6 were not SCCH.13 15 CC.47522/2010 the directors of the accused company and hence they are not liable. It has further contended that the legal notice issued to the accused was returned as left and no such person and therefore the accused was not at all participating in the business of the accused company and hence the complaint against that accused is not maintainable. The balance sheet produced by the complainant is of created one and the complaint is filed falsely against these accused for the wrongful gain.
18. The accused No.3 has lead evidence as DW.1 and has filed separate written argument contending that he had resigned from the director of the accused company on 01102009. The cheques in question are of 2010 and hence as on the date of issuance of cheques, this accused was not at all the Director of the company and hence he cannot be held liable. This accused was acquitted in the criminal case filed by the complainant in Hon'ble 13 ACMM court as per Ex.P73 & Ex.D6, 7 and 8. On the same SCCH.13 16 CC.47522/2010 grounds, the accused No.3 has sought for acquittal in the present case also.
19. In order to prove the offence under Sec. 138 of NI Act, the complainant must prove the basic requirements of Sec.138 of NI Act. The Complainant must prove the legally recoverable debt and the execution of cheque in order to repay the said loan. The complainant must prove that the cheques were issued on behalf of the accused No.1 company and the other accused are liable to pay the dues. The Ashok Bafna who is the partner of the complainant firm is examined as PW1. He has produced several documents in order to prove his claim. There are several complaints filed against the accused with regard to several cheques and in the present case the cheques involved are three in numbers. The first cheque is dated 7.06.2010 drawn on bank of India Cantonment branch Bangalore for Rs.4,35,572/. The second cheque is dated 21.06.2010 for Rs.3,84,834/ and the third Cheque is dated 21.06.2010 for Rs.5,00,814/. All the three cheques bears SCCH.13 17 CC.47522/2010 the signatures of accused no.4. Bank endorsement are produced as per exhibit P.4 to P.9 and the demand notice issued to the accused is produced at Ex.P.10. Postal receipts, postal acknowledgements and few unserved covers are also produced as per exhibit P 11 to 21.
20. These documents clearly show that these three cheques were presented on 9.06.2010, and on 23.06.2010. The first cheque came to be dishonoured on 9.06.2010, and other two cheques came to be dishonoured on 23.06.2010. The demand notice has been issued by the complainant on 29.06.2010 which is in time according to the Negotiable Instrument Act.
21. As discussed above, the first defence of the accused is that the complaint is not maintainable as the partnership firm did not authorize PW.1 to present the complaint and to depose on behalf of the firm. The complainant has argued that the complaint is presented by one of the partners and as per the Partnership Act the SCCH.13 18 CC.47522/2010 partner has authority to file complaint and the complaint is maintainable. In support of its contention, the complainant has produced judgment of Bombay High Court in Criminal Revision Application 17/2014 dated 02.04.2014 in the case of Reshmia Constructions Vs. Lakshman Vittal Chunnikafr. In the said judgment, Hon'ble High Court referring the case of Geekay Exim (India) Ltd. & others of Apex Court, has held that when the law expressly recognized the right of the partner of a juristic person or a legal entity to represent its cases like corporate body being the firm etc., no special and express authorization is required for initiating any legal proceedings like one the one criminal complaint. In the present case, PW.1 himself is the partner of the complainant and hence, he need not have any power of attorney to file complaint or to depose on behalf of the complainant. On the other hand, the accused have not produced any authorities or any supporting provision of law to hold the complaint not maintainable SCCH.13 19 CC.47522/2010 which is filed by the partner of the firm. The complainant has produced partnership deed at Ex.P.34 it is the Reconstitution of Partnership deed. Though the original partnership deed is not produced, there is no dispute that PW.1 is the partner of the firm. Accused has argued that Ex.P.34 is subsequent to the date of complaint and hence, PW.1 has no authority to depose on behalf of the firm. As discussed above, being the partner, complainant has every authority to present and to depose in the complaint in the capacity of a partner of the complainant firm. Hence, I found no irregularity or illegality in filing the present complaint. Hence, this defence of the accused is not proved.
22. Another defence of the accused is that, the accused No.2 who was Managing Director of the accused company is dead. As he was sole responsible for the transaction of the firm, since he is dead, the complainant cannot claim other directors of the accused company. Though accused No.2 SCCH.13 20 CC.47522/2010 was the Managing Director, other accused being the directors of the firm are responsible for the day to day activities and are held responsible for the accused on behalf of the company. Hence, this defence of the accused does not hold water and is not accepted. As accused No.2 is dead, the case against accused No.2 stands abated.
23. The case against accused No.5 was dismissed by this court on 27.03.17. Hence, no liability can be held on accused No.5
24. The contention of the accused No.3 is that, he had resigned on 01.10.2009 which is much earlier to the date of issuance of cheque in favour of the complainant. Hence, as on the date of issuance of cheque, he was not at all the Director of the company and hence, he cannot be held liable. It is also contended that he has been acquitted in the other criminal cases initiated by the complainant. Accused No.3 is examined as DW.1 and he has produced 15 documents in support of his contention. Ex.D.7, D.9 & D.11 are the the judgments in other criminal SCCH.13 21 CC.47522/2010 cases filed against accused alleging same offence. In these cases, several other cheques of the accused company were presented by the complainant in the said case and accused No.3 has been acquitted by holding that he was not the Director of the company as on the date of execution of cheques. Ex.D.7, D.9, D.11 are the judgments in criminal proceedings wherein the accused No.3 has been acquitted in the same manner. Accused No.3 has produced Form No.32 at Ex.D.1 which shows that he has resigned to the company and to his Directorship which was accepted with effect from 01.10.2019. Even the accused has replied to the demand notice stating that he was not the director of the accused company as on the date of issuance of cheques. These are produced at Ex.D.1 to D.4 during cross examination of PW.1. All these documents clearly indicates that accused No.3 was not the director of the company from 01.10.2009 whereas the date of execution of the cheques in this case are 07.06.2010, 21.06.2010 & SCCH.13 22 CC.47522/2010 21.06.2010. Hence, accused No.3 cannot be held liable for the alleged offence.
25. The remaining contesting parties are the accused No.1 company and the directors remained are accused No.4, 6 & 7.
26. Another contention of accused No.4 & 7 was that they were not the directors of the accused No.1 company as on the date of taking cognizance of alleged offence. The cause of action for the offence under Sec.138 NI Act commences from the date of issuance of cheques and continues on the date of presentation of cheques, the date of dishonour of cheques and the date of issuance of cheque and also non compliance of demand notice within stipulated period. The cause of action does not arose from the date of taking cognizance of the offence and as on the date of issuance of cheques i.e., 07.06.2010, 21.06.2010 & 21.06.2010, they were directors of the accused No.1 company. Accused No.4 has also admitted the liability and undisputedly he had signed Ex.P.1 to P.3 cheques being an authorized signatory. He SCCH.13 23 CC.47522/2010 had also admitted the outstanding balance by writing a letter to the complainant firm which is produced at Ex.P.27, 31 & 33 on behalf of accused No.1 company. This document is not at all disputed by the accused. Hence, the accused No.4 & 7 can not get the benefit of the resignation as they were existing directors of the accused No.1 company as on the date of issuance of cheque and also as on the date of dishonour of cheques. Hence, this defence of the accused is also not proved by them. Accused No.4, 6 & 7 have argued that there is no averments in the complaint that they are involved in the business and they are held liable in the alleged offence but in the complaint, it is very much clearly stated that accused No.2 is the Managing Director and accused No.3 to 7 are the Directors of these accused are solely responsible for conducting day to day activities of the company and they are also involved in taking the decisions effecting the company business. As there is a specific averment, SCCH.13 24 CC.47522/2010 the arguments of the accused cannot be accepted.
27. In the letter produced by the complainant at Ex.P.27, 31 & 33 it is clearly mentioned that they are due of Rs.48,55,929/ to the complainant firm and it was also mentioned that cheques issued by them may be presented as requested in the letter. The cheque numbers mentioned in the letter are 371491 to 371500 drawn on Bank of India, Cantonment Branch, Bengaluru. The same number cheques are involved in the present case at Ex.P.4 to P.6. This letter of the accused dated: 03.02.2010 clearly indicates the legally recoverable debt and the issuance of cheques by the accused. All the evidence and materials clearly indicates that the accused company was due more than the cheque amount and there is admission with regard to issuance of cheque and outstanding dues. These documents are the proof which the accused failed to dispute. All these documents satisfis all the ingredients of offence punishable under SCCH.13 25 CC.47522/2010 Sec.138 NI Act. As accused No.4, 6 & 7 have failed to prove their contentions and have failed to prove their defence, I hold that the complainant firm has produced sufficient material to prove the offence alleged. For supplying materials to the accused company, the complainant company have raised invoices produced in the evidence and all the invoices bears the seal and signature of accused No.1 company for receiving the materials supplied to them. The evidence of PW.1 clearly shows that the materials were supplied and the accused were due amount to the complainant company. PW.1 has deposed that materials were supplied on credit basis and the evidence of PW.1 could not be falsified by the accused and there is no suggestion with regard to denial of purchase of the materials by the accused.
28. By all the materials it is proved that the accused company was due of Rs.48,55,929/ and towards payment of this due, cheques bearing No.371491 to 371500 drawn on Bank of India, Contonment Branch, SCCH.13 26 CC.47522/2010 Bengaluru were issued. All these cheques are subject matter of the present complaint. When there is legally recoverable debt and the issuance of cheque was with regard to repayment of said amount is proved, the dishonour of these cheques will certainly constitute offence punishable under Sec.138 NI Act. There are no materials to show that the accused has repaid the entire amount on receiving the demand notice by the complainant. Hence, offence under Sec.138 NI Act against the accused No.1 company is proved.
29. All these cheques are dishonoured for the reason insufficient funds and hence the ingredients of the offence under section 138 NI Act are fulfilled. Even though the accused have stated that the notices are not served on them, as they were issued to their residential addresses, the exhibits RPAD and COP clearly show that the notices were duly served on the accused number 1 to 7. The postal acknowledgements which are marked in evidence clearly show that the notice was SCCH.13 27 CC.47522/2010 issued and were duly served. The COP produced indicates that the notices were duly served on the accused No. 6 & 7 even after their resignation, to their residential addresses. Even after service of these notices any of the accused except accused No.3 did not reply to the notice. Whatever the defences taken by the accused are only during the crossexamination of PW1. Other accused have not lead any evidence. Further the accused have failed to prove the defences taken by them.
30. Unlike other criminal proceedings, proceedings under Sec.138 NI Act is an exception to the general principle that the accused is presumed to be innocent until the guilt is proved beyond all reasonable doubt. In the proceedings initiated under Sec.138 of NI Act, to prove beyond reasonable doubt is subject to presumption envisaged under Sec.138 NI Act. Once the requirement under Sec.138 NI Act is fulfilled, it has to be presumed that the cheque was issued for discharge of legally recoverable debt or SCCH.13 28 CC.47522/2010 liability. The presumption under Sec.139 NI Act is mandatory in nature and it has to be raised on all the cases of fulfillment of requirement of Sec.138 NI Act. In the ruling rendered by Hon'ble Apex Court, in the case of Rangappa Vs. Mohan reported in AIR 2010 (SC) 1898 by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishna Janardhan Bhat Vs. Dattathraya G. Hegde reported in AIR 2008 (SC) 1325, it was held that "Existence of legally recoverable debt or liability is a matter of presumption Under Section139 of N.I. Act". The Hon'ble Apex Court disapproved the principle laid down in Krishna Janardhan Bhat's case that "Initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshminarayana Vs. Smt.Girijamma reported in 2010 (4) KCCR 2637, it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further as provided under Section118 of N.I. Act, it is to be presumed SCCH.13 29 CC.47522/2010 that the cheques in question were issued for consideration on the date as found therein.
31. The counsel for the complainant vehemently argued that as the complainant has succeeded in proving his case and discharged his burden of existence of legally recoverable debt and commission of offence under Sec.138 and under Sec 141 NI Act, and requested the court to punish the accused as per law. The complainant has relied on the judgement of honourable Supreme Court reported in 2017 (5) SCC 737 in the case of Rameshwaran Unni Vs. G Kannan and another. In this judgment the Supreme Court has held that it is clear from the section 27 of the general clauses act 1897 and section 114 of Indian evidence act 1972 that once notice is sent by registered post by correctly addressing to the drawer of the cheque, the service of notice is deemed to have been effected. Then requirements under proviso be of section 138 stands complied, if notice is sent in the SCCH.13 30 CC.47522/2010 prescribed manner. However The drawer is at liberty to repeat this presumption.
32. The accused No.4, 6 & 7 did not contend that the demand notice is not duly served but it is contended that it was not served as they were not the directors of the accuse number one company. As already discussed earlier the certificate of posting produced by the complainant clearly indicate that the notices are duly served on these accused. Hence the judgment in support of the complainant aptly apply to this case and the accused have failed to rebut this presumption.
33. Another judgment which is relied by the complainant is of Hon'ble Supreme Court reported in 2009 space 10 SCC48. It is of the case in the KK Ahuja VS. Vora and another where in the court has explained the position under Sec.141 of NI Act. The apex court summerised the position under section 141 Stating that in case of a director or an officer of the company who signed the cheques on behalf of the company, there is SCCH.13 31 CC.47522/2010 no need to make a specific averment that he was in charge of and was responsible to the company for the conduct of the business of the company or make any specific allegation about consent convenience or negligence. The very fact that the dishonored cheque was signed by him on behalf of the company would give rise to responsibility under subsection (2) of section 141. It is further held that in case of director, secretary or manager as defined in section 224 of the companies act or a person referred to in clause E and F of section 5 of companies act and Averment in the complaint that he was in charge of and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under section 141 of the act. No further Averment would be necessary in the complaint though some particulars will be desirable. They can also be made liable under section 141(2) by making necessary arrangements relating to consent and convenience or negligence, in the complaint, to bring the manner matter under that subsection.
SCCH.13 32 CC.47522/201034. Thus, it is clear that the liability of accused number 4, 6 and 7 cannot be denied merely because they are the directors and not the managing directors.
35. As already discussed above, the complainant has proved its case as to commission of offence punishable under Sec.138 and under Sec. 141 NI Act by the accused No.4, 6 and 7 being Directors of the accused No.1 firm, have also committed the above offence. Hence, the accused1, 4, 6 & 7 are found guilty of offence punishable under Sec.138 & Sec.141 of NI Act. With all these observations the Point No.1 is answered in the Affirmative.
36. Point No.2: for the reasons discussed on Point No.1, I proceed to pass the following :
ORDER Exercising power under Sec.255 (2) of Cr.P.C., the accused No.1 is held guilty and convicted for the offence punishable under Section 138 & Sec.141 of Negotiable Instrument Act and the accused No.4, 6 and 7 being directors of accused No.1 are SCCH.13 33 CC.47522/2010 also held guilty and convicted for the offence punishable under Sec.138 & Sec.141 NI Act.
Accused No.3 is acquitted of the offence punishable under Sec.138 of NI Act.
Accused are sentenced to pay fine of Rs.13,30,000/ for the offence punishable under Sec.138 & Sec.141 NI Act. In default of payment of fine, accused shall undergo simple imprisonment for a period of six months.
By exercising power under Sec.357(1) Cr.P.C. out of total fine amount of Rs.13,30,000/, a sum of Rs.13,20,000/ is ordered to be paid to the complainant as compensation and Rs.10,000/ is ordered to be remitted to the State.
The bail bond of the accused No.4, 6 & 7 stands cancelled.
Supply free copy of this judgment to the accused.
(Dictated to the stenographer, transcript thereof corrected, signed and then pronounced by me in the Open Court on this the 24th day of June 2021.) (DIVYASHREE.C.M.) II Addl. Judge & ACMM Court of Small Causes, Bengaluru SCCH.13 34 CC.47522/2010 A N N E X U R E WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW.1: Ashok Bafna DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P.1 to 3 : Dishonoured cheques Ex.P.1(a)to 3(a) : Signatures Ex.P.4 to P.9 Bank endorsement Ex.P.10 Copy of Legal notice Ex.P.11 Postal receipts Ex.P.12 to P.15 COP Receipts Ex.P.16 to P.19 Postal acknowledgment Ex.P.20 & P.21 Unserved postal covers Ex.P.22 Form No.7 Ex.P.23 CST Certificate Ex.P.24 Account statement Ex.P.25 Confirmation letter from accused Ex.P.26 Account statement Ex.P.27 Confirmation letter from accused Ex.P.28 Original complaint Ex.P.28 CC of Form VAT.7 (overlap in marking) Ex.P.29 CC of Form VAT.7 Annexure Ex.P.30 to P.32 CC of 3 Confirmation letters from accused with ledger extract Ex.P.33 CC of Confirmation letter SCCH.13 35 CC.47522/2010 from accused Ex.P.34 CC of Partnership reconstruction deed Ex.P.35 to 68 CC of 34 Tax invoice with package slip Ex.P.69 CC of Audit Report for 2009 10 Ex.P.70 CC of Audit Report for 2010 11 Ex.P.71 & 72 Audit reports Ex.P.73 CC of judgment in CC.253/2011 WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
DW.1 C.K.Mohan Rao DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
Ex.D.1 CC of Form 32
Ex.D.2 Acknowledgement
Ex.D.3 Letter
Ex.D.4 Postal receipt
Ex.D.5 CC of Form 32
Ex.D.6 CC of ordersheet in
CC.251/2011
Ex.D.7 CC of judgment in CC.251/2011
Ex.D.8 CC of ordersheet in
CC.252/2011
Ex.D.9 CC of judgment in CC.252/2011
Ex.D.10 CC of ordersheet in
CC.253/2011
Ex.D.11 CC of judgment in CC.253/2011
SCCH.13 36 CC.47522/2010
Ex.D.12 CC of Order in Criminal
petition No.3371/2008
Ex.D.13 to D15 CC of complainant evidence in CC.47524/2010 (DIVYASHREE.C.M.) II Addl. Judge & ACMM Court of Small Causes, Bengaluru.