Bangalore District Court
Sri David Roy Kohngjee vs M/S. Dreamz Infra India Pvt. Ltd on 3 May, 2017
IN THE COURT OF THE XIX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY.
Dated this the 3rd day of May, 2017
PRESENT: SMT. ISHRATH JAHAN ARA, B.A.L., L.L.B.,
XIX ADDL.C.M.M., BENGALURU.
Case No: CC No.34244/2014
Complainant: Sri David Roy Kohngjee
S/o. K. Lyngdoh,
Aged about 45 years
R/at Slowlyian Marwroh,
P/T Quarters, Central Norgrim Hills,
Shillong -793 003.
And also R/at
No.233, 2nd Floor, Koramangala 7th
Block, Bengaluru -95.
Represented by his PA Holder,
Sri Mewanbanjop Mawroh,
S/o. David Roy Khongjee
Accused: 1. M/s. Dreamz Infra India Pvt. Ltd.,
Having its Office at No.577/B, 2nd
Floor, Outer Ring Road,
Teachers Colony, Koramangala,
Near Silk Board,
Bengaluru -560 034.
2. Smt. Disha Choudary,
Managing Director,
M/s. Dreamz Infra India Pvt. Ltd.,
Having its office at No.577/B,
2nd Floor, Outer Ring Road,
Teachers Colony, Koramangala,
Near Silk Board,
Bengaluru -560 034.
Offence complained of: U/s.138 of N.I. Act
2 CC No.34244/2014
Plea of accused: Pleaded not guilty
Opinion of the Judge Accused found guilty
Date of order: 3rd May 2017
JUDGEMENT
The P.A. Holder of the complainant has filed this complaint u/s. 200 of Cr.P.C. against the accused for the offences punishable u/s. 138 of N.I. Act.
2. The brief fact of the complaint is that;
The Complainant stated that the accused No.1 is a Private Ltd Company registered under the Companies Act in the name and style of M/s. Dreams Infra-India Pvt. Ltd., represented by its Managing Director - accused No.2 carrying on business of construction of residential apartments. The Complainant approached the accused with an intention to purchase a flat constructed by the accused Ejipura Village of Begur Hobli, Bengaluru South Taluk under the name of "Dreamz Sankirtan" for the total sale consideration amount of Rs.39,00,000/-. The accused have entered into a Memorandum of Understanding with this Complainant on 31.10.2013 and they agreed to allot a flat constructed by them at Jakkasandra village of Begur Hobli, Bengaluru in the name of "Dreamz Samrajya" instead of "Dreamz Sankirtan. The Complainant has agreed to purchase the flat in the said building for the sale consideration amount of Rs.39,00,000/- 3 CC No.34244/2014 and accordingly, the Complainant had advanced the advance sale consideration amount of Rs.19,25,000/-. On 26.5.2013 a sum of Rs.5,00,000/- was paid to the accused and on 8.6.2013 a sum of Rs.14,25,000/- was paid to the accused through online transfer and agreed that he will repay the remaining sale consideration amount at the time of registration as per the terms of M.O.U.
3. It is further stated by the Complainant that subsequently, the said project was failed to take off as assured by the accused and thus the accused give clear indications that their inability to meet the terms of M.O.U and as this Complainant had lost all his hopes and interest in the said project, approached the accused. As the accused has failed to meet the requirements, the M.O.U entered by them was cancelled and the accused are ready to return the sale consideration amount. The accused have issued 7 set of cheques for total amount of Rs.20,66,760/- including interest amount bearing Cheque No.274047 dtd.16.7.2014 for a sum of Rs.3,00,000/-, Cheque bearing No..274048 dtd.17.7.2014 for a sum of Rs.3,00,000/-, Cheque bearing No. 274049 dtd.18.7.2014 for a sum of Rs.3,00,000/-, Cheque bearing No.274050 dtd.19.7.2014 for a sum of Rs.3,00,000/-, Cheque bearing No. 274151 dtd.20.7.2014 for a sum of Rs.3,00,000/-, Cheque bearing No. 274152 dtd.21.7.2014 for a sum of Rs.3,00,000/- and a cheque bearing No.274153 dtd.26.7.2014 for a sum of Rs.2,66,760/- all are drawn at 4 CC No.34244/2014 Axis Bank Ltd., Koramangala branch, Bengaluru in favour of this Complainant with a request to present the cheques for encashment and it will be honoured on its presentation.
4. The Complainant further stated that on the assurance of the Accused, he presented all the said Cheques before his banker, State Bank of India, Shillong on 21.7.2014 but the said cheques returned dishonoured with an endorsement "Insufficient Funds" and the same was informed to the accused. The accused once again requested the Complainant to re-present the cheques for encashment and assured that they will arrange funds in their bank account. By believing the words of the accused, the Complainant presented all the said cheques before his banker Standard Chartered Bank, Koramangala branch, Bengaluru for encashment but the said cheques once again returned dishonoured for the reason "funds insufficient" on 25.9.2014 and the same was intimated to this Accused.
5. The Complainant further stated that as the accused has failed to make payment of the Cheques amount, the Complainant got issued the Legal Notice on 16.10.2014 through RPAD, calling upon both the accused No.1 and 2 to pay the Cheques amount within 15 days from the date of receipt of Legal Notice and the same was duly served on the accused on 21.10.2014. The accused even inspite of receipt of 5 CC No.34244/2014 Legal Notice, the Accused have neither chosen to make payment of the cheques amount nor they have sent their reply by denying the transaction. The Accused knowing fully well that they have no sufficient funds in their bank account, had issued their bogus Cheques and thereby accused have committed an offence punishable under Section 138 of N.I. Act.
6. After recording of sworn statement of the complainant, the Private Complaint lodged by the complainant was registered as a Criminal Case, summons was issued as against the accused No.1 and
2. The accused No.2 appeared before this court through her counsel on her behalf and also on behalf of accused No.1 company and she was enlarged on bail. Plea of accusation was read over to the accused. The accused pleaded not guilty and claims to be tried.
7. Even though the Complainant through his Power of Attorney got filed the complaint before this court. However, during the stage of trial, the Complainant cancelled the Power of Attorney executed by him and he got himself prosecuted his case and got examined as PW1 and he got produced 19 documents marked as Ex.P.1 to Ex.P.19 and closed his side of evidence.
8. After closure of complainant side evidence, accused statement u/s.313 of Cr.P.C. was dispensed as the accused were 6 CC No.34244/2014 remained absconded and moreover, it is a summary trial converted to Summons Case. The accused have not led any evidence from their side.
9. I have heard the arguments appearing for both the parties. I have perused the entire records.
10. The only point arise for my consideration is:
1. Whether the Complainant has proved the guilt of the accused u/s 138 of N.I. Act beyond all reasonable doubts?
2. What order?
11. My findings to the above point are as under:
Point No.1 : In the Affirmative
Point No.2 : As per final order
for the following:
REASONS:
12. Point No.1: The entire burden is on the complainant to prove his case and also to prove the above point. In order to prove the same, the complainant stepped into the witness box, got examined as PW-1 and he filed his affidavit in lieu of the oral evidence by reiterating the complaint averments.
13. PW1 deposed that the accused No.1 is a Private Ltd. Company represented by its Managing Director - accused No.2 carrying on business of construction of residential apartments and he with an intention to purchase a flat constructed by the accused at Ejipura Village of Begur Hobli, Bengaluru South Taluk under the 7 CC No.34244/2014 name of "Dreamz Sankirtan" for the total sale consideration amount of Rs.39,00,000/, approached the accused and entered into an Memorandum of Understanding on 31.10.2013 and under the agreement the accused have agreed to allot a flat constructed by them at Jakkasandra village of Begur Hobli, Bengaluru in the name of "Dreamz Samrajya" instead of "Dreams Sankirtan". He deposed that he has agreed to purchase the flat in the said building for the sale consideration amount of Rs.39,00,000/- and accordingly, he advanced advance sale consideration amount of Rs.19,25,000/-. He deposed that on 26.5.2013 a sum of Rs.5,00,000/- was paid to the accused and on 8.6.2013 a sum of Rs.14,25,000/- was paid to the accused through online transfer and agreed that he will repay the remaining sale consideration amount at the time of registration as per the terms of M.O.U.
14. He deposed that subsequently, the said project was failed to take off as assured by the accused and thus the accused give clear indications that their inability to meet the terms of M.O.U. and they failed to meet the requirements and therefore, the M.O.U entered by them was cancelled and the accused are ready to return the sale consideration amount and accordingly, the accused have issued 7 set of cheques for total amount of Rs.20,66,760/- including interest amount bearing Cheque No.274047 dtd.16.7.2014 for a sum of 8 CC No.34244/2014 Rs.3,00,000/-, Cheque bearing No.274048 dtd.17.7.2014 for a sum of Rs.3,00,000/-, Cheque bearing No. 274049 dtd.18.7.2014 for a sum of Rs.3,00,000/-, Cheque bearing No.274050 dtd.19.7.2014 for a sum of Rs.3,00,000/-, Cheque bearing No. 274151 dtd.20.7.2014 for a sum of Rs.3,00,000/-, Cheque bearing No. 274152 dtd.21.7.2014 for a sum of Rs.3,00,000/- and a cheque bearing No.274153 dtd.26.7.2014 for a sum of Rs.2,66,760/- all are drawn at Axis Bank Ltd., Koramangala branch, Bengaluru in his favour with a request to present the cheques for encashment and it will be honoured on its presentation.
15. PW1 further deposed that on assurance of the Accused, he presented all the said Cheques before his banker at Shilong on 21.7.2014 but the said cheques returned dishonoured with an endorsement "insufficient Funds" and the same was informed to the accused. He deposed that the accused once again requested him to re- present the cheques for encashment and assured that they will arrange funds in their bank account and he by believing the words of the accused, presented all the said cheques before his banker at Bengaluru for encashment but the said cheques once again returned dishonoured for the reason "funds insufficient" on 25.9.2014 and the same was intimated to this Accused.
16. PW1 further deposed that as the accused have failed to make payment of the Cheques amount, he got issued the Legal Notice 9 CC No.34244/2014 on 16.10.2014 through RPAD, calling upon both the accused No.1 and 2 to pay the Cheques amount and the same was duly served on the accused on 21.10.2014. He deposed that the accused even inspite of receipt of Legal Notice, the Accused have neither chosen to make payment of the cheques amount nor they have sent their reply by denying the transaction. He deposed that the Accused knowing fully well that they have no sufficient funds in their bank account, had issued their bogus Cheques and thereby accused have committed an offence.
17. PW1 in order to prove his case, got produced seven original cheques issued by these accused marked as Ex.P1 to Ex.P7 respectively. He deposed that the signature found on Ex.P1 to Ex.P7 is that of the accused No.2 and he got identified the signature found on the cheques marked as Ex.P1(a) to Ex.P7(a). He got produced seven bank endorsements marked as Ex.P8 to Ex.P14 respectively. He got produced copy of the legal notice along with two RPAD receipts marked as Ex.P15, Ex.P15(a) and Ex.P15(b) respectively. He got produced two Postal Acknowledgement Due Cards for having served the notice to both the accused marked as Ex.P.16 and Ex.P17 respectively. He deposed that previously he was given a Power of Attorney in favour of his son Mewanbanjop Mawroh and subsequently he cancelled the Power of Attorney by sending a notice 10 CC No.34244/2014 to his son and he got produced the said notice marked as Ex.P.18 and a postal receipt issued with respect to issuance of notice is marked as Ex.P.18(a). He got produced his bank statement issued by State Bank of India to prove that he transferred the sum of Rs.5,00,000/- on 7.6.2013 and a sum of Rs.14,25,000/- on 8.6.2013 to these accused marked as Ex.P.19.
18. Even though the Accused has appeared before this court through her Counsel, but she did not chosen to contest the proceedings by cross examining PW1 even in spite of sufficient opportunities. The accused has utterly failed to cross examine the PW1 by denying his testimony. As such, by an order dtd.14.3.2017, the cross examination of PW1 was taken as "nil" and proceeded the matter further. Even on subsequent dates the accused neither came forward to cross examine PW1 nor they have challenged the evidence of PW1. As such, the entire case of the complainant along with his oral and documentary evidence remained unchallenged in toto.
19. There is nothing on record to disbelieve testimony of PW1 or to discard the evidence of PW1. On the contrary, PW1 has categorically deposed that the accused towards the return of the advance sale consideration amount along with interest thereon, had issued Ex.P1 to Ex.P7 cheques and all the cheques were bounced on its presentation for encashment for the reason "insufficient funds". This 11 CC No.34244/2014 fact remained unchallenged from the accused. Likewise, the evidence of PW1 that even inspite of receipt of legal notice, issued as per Ex.P.15, as disclosed in Ex.P.16 to Ex.P17, the accused have neither chosen to make payment of the cheques amount nor they have sent their reply by denying the transaction. Even this fact remained unchallenged from the accused. As I have discussed supra, there is no defence from the side of accused.
20. The Accused have neither denied the issuance of Ex.P.1 to Ex.P7 Cheques in favour of this complainant nor they have denied the signature of accused No.2 found on Ex.P.1 to Ex.P7 marked as Ex.P.1(a) to Ex.P7(a). The Accused even did not chosen to deny a fact that the Ex.P.1 to Ex.P7 Cheques were bounced on its presentation for encashment for the reason "Insufficient funds". Admittedly, the Accused did not chosen to deny the documents marked as Ex.P.1 to Ex.P.19. The Accused even did not chosen to deny a fact that immediately after their Cheques were bounced, the PW1 got issued Ex.P15 notice, calling upon them to pay the Cheques amount and also by intimating dishonor of Cheques and the same was served upon them. On the contrary, PW1 has categorically deposed that immediately after the receipt of Ex.P8 to Ex.P14 Bank endorsements, he got issued Ex.P15 notice, calling upon the Accused to pay the Cheques amount and the same was served upon the Accused. PW1 has deposed that the Accused even after receipt of Legal Notice, have 12 CC No.34244/2014 not chosen to make payment of the cheques amount. He deposed that the Accused with an intention to cheat him, had issued his Ex.P.1 to Ex.P7 bogus Cheques even though there was no sufficient funds in their bank account. Even these facts were not denied by the Accused. Ex.P.15 to Ex.P17 documents clearly prove that the notice u/s. 138 (b) of N.I. Act was served upon the Accused and even inspite of receipt of Legal Notice, the Accused have failed to make payment of the Cheques amount.
21. Admittedly, the entire burden is on this Accused to rebut the case of the Complainant and also to rebut the presumption available to this Complainant u/s. 139 of N.I. Act. The Accused in order to prove their defence and to rebut the presumption available u/s.139 of N.I. Act, have not chosen produce any piece of documents before this Court. There is no evidence from the side of the Accused to believe their defence. The Accused have utterly failed to rebut the presumption available u/s. 139 of N.I. Act. The accused have not put forth any defence before this court. The Accused have utterly failed to rebut the presumption available to this Complainant u/s.118 and also u/s. 139 of N.I. Act which reads as:
22. As per the provisions of Sec.118, which reads thus:
a. Of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, 13 CC No.34244/2014 indorsed, negotiated or transferred for consideration;
b. As to date - that every negotiable instrument bearing a date was made or drawn on such date;
c. As to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
d. As to time of transfer - that every transfer of a negotiable instrument was made before its maturity;
e. As to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
f. As to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped; g. That holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
23. Likewise, the accused also failed to rebut the presumption available to this Complainant u/s.139 of N.I. Act which reads:
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
24. The learned Counsel for the Complainant has vehemently argued that the Accused were builders and they are constructing the residential apartments and they have given wide publicity regarding their constructions and this Complainant who is a willing buyer of a flat, interested to buy a flat at the at the apartment constructed by this accused at "Dreams Samrajya" for the sale consideration amount of 14 CC No.34244/2014 Rs.39,00,000/- and accordingly, the Complainant had advanced a advance sale consideration amount of Rs.19,25,000/- through his bank transfer to the accused under a M.O.U. executed on 31.10.2013. He has argued that subsequently the accused failed to start their project and they failed to sell the flat to this Complainant as per the terms of M.O.U. and subsequently they in order to return the advance sale consideration amount along with interest thereon, had issued seven cheques totally amounting to Rs.20,66,760/- in favour of this Complainant. He argued that the Complainant before filing of this complaint, had followed all the mandatory provision of Section 138 of N.I. Act and these Accused even inspite of receipt of Legal Notice, have neither chosen to make payment of the cheques amount nor they have sent their reply by denying the transaction. He argued that the entire case of the Complainant along with his oral and documentary evidence, remained un-challenged from the accused and therefore, the accused have to be convicted in accordance with law. The arguments canvassed by the learned Counsel for the Complainant, is fully convinced this court.
25. The Accused even inspite of receipt of the Legal Notice, have not chosen to make payment of the cheques amount. The Complainant by adducing oral and documentary evidence before this Court, has proved guilt of the Accused beyond all reasonable doubts. There is no whatsoever doubt in the mind of the court about the case 15 CC No.34244/2014 of the complainant. The oral and documentary evidence adduced before this Court by the Complainant, is fully corroborating with each other and convinced this court about his case. The Complainant by adducing oral and documentary evidence before this court bring home the guilt of the Accused beyond all reasonable doubts to the satisfaction of the court. There is no whatsoever doubts in the mind of the court about the case of the Complainant. Therefore, by taking into consideration of the facts and circumstances and evidence available on record, I answered the point No.1 in the affirmative.
26. Point No.2. In view of my findings on the above point and the reasons stated therein, I proceed to pass the following:
ORDER Acting u/Sec. 255 (2) of Cr.P.C., the accused No.1 and 2 are hereby convicted for the offence punishable u/Sec. 138 of N.I. Act.
The accused No. 1 and 2 are jointly and severally sentenced to pay a fine of Rs.21,05,000/-(Rupees Twenty-one Lakhs and five Thousand only). In any default to pay fine amount, the accused No.2 shall undergo simple imprisonment for 6 months.
Out of fine amount recovered under Section 357 of Cr.P.C., a sum of Rs.21,00,000/- (Rupees Twenty-one Lakhs only) shall be paid to the complainant which includes the 16 CC No.34244/2014 cheques amount and also costs of the proceedings. Remaining fine amount of Rs.5,000/- shall be forfeited to the State.
The bail bond and surety bond of the accused stands cancelled.
(Dictated to the Stenographer, transcript thereof is computerized and print out taken by her is verified and then pronounced by me in the Open Court on this the 3rd day of May, 2017) 1 (ISHRATH JAHAN ARA) XIX ADDL.C.M.M., Bengaluru.
ANNEXURE:
Witnesses examined on behalf of the Complainant:
PW.1 Mr. David Roy Khongjee Witnesses examined on behalf of the Accused: Nil
Documents marked on behalf of the Complainant:
Ex.P.1 to Ex.P7 Cheques
Ex.P.1(a) to Ex.P7(a) Signature of the Accused
Ex.P.8 to Ex.P14 Bank endorsements
Ex.P.15 Copy of Legal Notice
Ex.P.15(a)& Ex.P15(b) Postal Receipts
Ex.P.16 & Ex.P17 Postal Acknowledgement Due Cards
Ex.P.18 Notice sent to the son of the Complainant
Ex.P.18(a) Postal receipt
Ex.P.19 Bank statement
Documents marked on behalf of the Accused:
Nil
XIX ACMM, B'lore.