Bangalore District Court
M/S. Basudeo Enterprise Pvt. Ltd vs M/S Samsaa Rubber And Polymers on 6 January, 2020
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU
Dated this the 6th day of January, 2020.
Present : Sri.MANJUNATHA. K.P, B.A.,LL.B
C/c XXV Addl. C.M.M., Bengaluru.
C.C.No.13657/2013
Complainant M/s. Basudeo Enterprise Pvt. Ltd.
Company registered under the
Companies Act, 1956,
Having its principal place of
business at No.35,
D.V.Colony, Minister Road,
Secunderabad-500 003.
Andhra Pradesh Represented by its
Authorised Signatory.
And also at
Registered office at 37/12-1,
Arachana Complex,
4th Cross, Lalbagh Road,
Bengaluru-560 027.
Represented by its
Authorized Signatory,
Manoj Jain S/o Gajaraj Jain.
V/s
Accused 1. M/s Samsaa Rubber and Polymers
Pvt. Ltd.
Having its principal place of
business at No.36/C,
Phase 1, Road No.9, S.V.Co-operative
Industrial Estate, IDA.Jeedimetla,
Hyderabad,
Andhra Pradesh.
2 C.C.No.13657/2013
2. Mr.Anil Kumar Singh
S/o Mr.Shyam Nandan Singh,
Managing Director,
M/s Samsaa Rubber and Polymers
Pvt. Ltd.
H.No.41-143/1, Pipeline Road,
Sanjaypuri Nagar, Jagatgitigutta,
Ranga Reddy, Andhra Pradesh.
Offence complained of U/s138 of Negotiable Instrument Act
Plea of accused Pleads not guilty.
Final Order Accused is Convicted
Date of Judgment 06.01.2020
JUDGM ENT
The Complainant has presented the complaint U/s
200 Cr.P.C. against the accused for the alleged offence
punishable U/s 138 Negotiable Instrument Act.
This Court has received con-current charges from
the Hon'ble High Court. Hence, heard the matter on both
the sides. There is a direction from the Hon'ble High
Court in Cr.R.P.No.7023/2013 to dispose the matter
within a period of six months and further admittedly as
per the orders of Hon'ble High Court in
Cr.P.No.7023/2013, the case against Accused Nos.3 to 6
has been quashed. Hence, this case against Accused
Nos.1 and 2 only pending.
3 C.C.No.13657/2013
2. The brief facts of the case of the complainant's
case is that :
The Complainant is a Company registered under
the Companies Act, and accused is acquainted with the
complainant and known to the complainant from several
years. On the basis of acquaintance the accused The
present case arise out of the complaint filed by the
complainant U/s 138 of N.I.Act. Since several years the
accused is regular customer with this Complainant
Company and Complainant is a dealer in plastic raw
materials like LLDPE, HDPE, PP and PVC Resin etc, and
complainant also supplied the materials to the accused
from time to time. Accordingly, accused have agreed to
effect payment as against to the supply of facts of
Invoices and Complainant has also further stated that
out of the total outstanding amount billed. Accused have
been made payments of invoices and have cleared
substantial amount that accused having dues of
Rs.78,89,015/-. Hence, on demand made by the
Complainant Company accused have issued a cheque
bearing No.042511 dated : 10.12.2012 for
4 C.C.No.13657/2013
Rs.78,88,915/- drawn on State Bank of Hyderabad,
Shapurnagar, aforesaid amount and on request of the
accused Complainant Company has presented the
cheque with a shara "Funds Insufficient" on
11.12.2012. Thereafter, the Complainant issued legal
notice on 05.01.2013. Inspite of service of notice the
accused has not repaid the amount. Hence, the
complainant is constrained to file this complaint.
3. After receipt of complaint, this Court has taken
cognizance of the alleged offence and Sworn Statement
of the complainant was recorded and process was issued
to the accused. After service of the summons the
accused appeared before this Court and he was
enlarged on bail and all papers were supplied to him.
The substance of Plea was recorded and read over and
explained in Kannada language to the accused, to which
he pleads not guilty and claims to be tried. Hence,
posted the case for complainant evidence.
5 C.C.No.13657/2013
4. In order to prove the Complainant case,
Complainant was examined as PW-1 and got marked
the documents at Ex.P.1 to Ex.P.26. Thereafter, the
statement of the accused U/s 313 of Cr.P.C is recorded,
read over and explained in Kannada Language to which
accused has denied the entire language to which
accused has denied the entire incriminating evidence
which appears against him. Per-contra, accused No.2
examined as DW-1 and he has not exhibited any
documents.
5. Heard the arguments on both sides, perused
the entire papers.
6. Now, the following points arise for my
consideration :
1. Whether the complainant has
made out all the ingredients of
Section 138 of N.I.Act to prove the
guilt of the accused person ?
2. What order ?
6 C.C.No.13657/2013
7. My answers to the above points are as under:
Point No.1 : In the Affirmative.
Point No.2 : As per final order for the
following :
REASONS
8. POINT No.1 : This present case arise out of the
complaint filed by the complainant U/s 138 of N.I.Act
and Complainant has pleaded that, since several years
the accused is regular customer with Complainant
Company and Complainant is a dealer in plastic raw
materials like LLDPE, HDPE, PP and PVC Resin etc, and
complainant also supplied the materials to the accused
from time to time. Accordingly, accused have agreed to
effect payment as against to the supply of facts of
Invoices and Complainant has also further stated that
out of the total outstanding amount billed. Accused have
been made payments of invoices and have cleared
substantial amount and accused have due of
Rs.78,89,015/-. Hence, on demand made by the
Complainant Company accused have issued a cheque
bearing No.042511 dated : 10.12.2012 for
7 C.C.No.13657/2013
Rs.78,88,915/- drawn on State Bank of Hyderabad,
Shapurnagar, aforesaid amount and on request of the
accused Complainant Company has presented the
cheque with a shara "Funds Insufficient" on
11.12.2012. Thereafter, the Complainant has issued
legal notice on 05.01.2013. Inspite of service of notice
the accused has not repaid the amount. Hence, the
complainant is constrained to file this complaint.
9. In order to prove the case of the Complainant
the complainant authorised person by name Sri.Lalit
Kumar Ramsisaria is examined as PW-1 and got marked
the documents at Ex.P.1 to Ex.P.26. On the otherhand
the accused No.2 is examined as DW-1 and he has
stated before the Court that he has transaction with
M/s. Perals Polymer company since several years. In the
said transactions he has issued Ex.P1 cheque in blank
for security purpose and Ex.P-5 to 12 Invoices are
created by the Complainant and there is no transactions
between the Complainant and himself and prays to
acquittal of the accused.
8 C.C.No.13657/2013
10. During the course of arguments complainant
counsel has argued that complainant has proved his
case by way of oral and documentary evidence and on
admissions in the mouth of DW-1 and the suggestions
made by the accused counsel to the PW-1 are
corroborated with the complainant case and prays to
convict the accused by relying following rulings. On the
other hand the accused counsel resisted the said
averments and argued that as per the admissions of PW-
1 he has no personal acquaintance with the case
proceedings. So evidence of PW-1 is not at all sufficient
to convict the accused because he has no personal
knowledge and Ex.P-5 to 12 Invoices are created by the
Complainant Company and there is no transactions
between Complainant Company and accused No.2 and
not proved and prays to acquittal of the accused by
relying following rulings.
1. LAWS (KAR) 2018 2 208 Branch Manager, Pca
and RD Bank Ltd., Belthangady V/s Suresh
Ganapathi Das.
9 C.C.No.13657/2013
2. (2008) 7 SCC 137 Sudhir Kumar Bhalla V/s
Jagdish Chand and Ors.
AIR 2019 Study Certificate 1983
Basalingappa V/s Mudibasappa.
11. On careful perusal of the entire oral and
documentary evidence and arguments addressed by both
the counsels, the admitted facts are that, there is no
dispute that Ex.P-1 is Board of Resolution passed by the
Complainant Company in favour of one Sri.Lalit Kumar
Ramsisaria to appear in the present case on behalf of the
complainant company and further there is no dispute
that Ex.P-2 Cheque belongs to Accused No.1 Company
and further there is no dispute that about having of
Certificate of incorporation and Memorandum of
Association pertaining to the Complainant company.
Further, there is no dispute about issuance of Ex.P-7
notice by the Complainant. After dishonour of cheque
against the accused persons. Further, there is no dispute
that about service of notice as per Ex.P-19 to 24
acknowledgments. Further, there is no dispute that
Ex.P-25 is Reply notice issued by the accused persons.
10 C.C.No.13657/2013
Further, there is no dispute under Ex.P-26 this case
proceedings are quashed against Accused Nos.3 to 6.
Further, in Ex.P-26. The Hon'ble High Court of
Karnataka directed this Court to dispose the matter
within a period of six months. The prime dispute in this
case is that the existenance of debts between
Complainant and Accused and issuance of cheque by the
accused Nos.1 and 2 to discharge the legally recoverable
debts.
12. To prove the said fact Complainant authorized
person by name Sri.Lalit Kumar Ramsisaria examined as
PW-1 and got marked Ex.P-1 to 26 documents. Of course
as argued by the accused counsel PW-1 has admitted the
following points in his cross-examination.
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11 C.C.No.13657/2013
¸ÀA¥ÀÇtð ªÀåªÀºÁgÀ ºÉÊzÀgÁ¨Ázï ±ÁSÉAiÀÄ°è £ÀqÉ¢gÀÄvÀÛzÉ JAzÀgÉ ¸Àj.
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"D¥Á¢vÀ ¸ÀA¸ÉÞAiÀĪÀgÀÄ £ÁªÀÅ ¤ÃrzÀ £ÉÆÃn¸ïUÉ GvÀÛgÀ ¤ÃrzÀ §UÉÎ
£À£ÀUÉ ªÀiÁ»w E®è, D¥Á¢vÀ ¸ÀA¸ÉÞAiÀĪÀgÀÄ ¤ÃrzÀ GvÀÛgÀzÀ°è ¤¦.2
«ªÁ¢vÀ ZÉPÀÌ£ÀÄß £ÀªÀÄä ¸ÀA¸ÉÞUÉ ¤Ãr®è JAzÀÄ UÉÆwÛzÀÝgÀÆ FUÀ DgÉÆævÀgÀÄ
¤ÃrzÁÝgÉ JAzÀÄ ¸ÀļÀÄî ¸ÁQë ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è.''
" F ¥ÀæPÀgÀtzÀ J¯Áè ªÀåªÀºÁgÀUÀ¼ÀÄ ºÉÊzÀgÁ¨Ázï£À°è £ÀqÉ¢gÀÄvÀÛªÉ
JAzÀgÉ ¸Àj. £ÀªÀÄä ¸ÀA¸ÉÞAiÀÄ ªÀÄÄRå PÀbÉÃj ºÉÊzÀgÁ¨Ázï£À°ègÀÄvÀÛzÉ JAzÀgÉ
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ªÀiÁqÀÄvÁgÉ JAzÀgÉ ¸Àj £ÀªÀÄä ªÀÄÄRå PÀbÉÃj ºÉÊzÀgÁ¨Ázï£À°è £ÀªÀÄä
¸ÀA¸ÉÝAiÀÄ ¨ÁåAPï DPËAmï EzÉ JAzÀgÉ ¸Àj.''
13. Further, on perusal of the aforesaid
admissions of PW-1, it is crystal clear that, Ex.P-5 to
14 invoices confers about supply of the materials to the
accused company and he has also admitted that the
entire transactions held in Hyderabad Office and he is
has no personal knowledge over the Hyderabad office
12 C.C.No.13657/2013
transactions. But the said admissions nor supports the
accused case. Of course accused has relied upon the
following rulings rendered by the Hon'ble Apex Court in
Crl.Appeal No.73/2007 between A.C.Narayanan V/s
State of Maharashtra and Another. In said ruling
their lordships held that, if the Complainant as well as
Power of Attorney holder has no personal knowledge
over the case transactions than the accused is entitled
for benefit of doubt etc., in the proceedings filed under
N.I.Act, but admittedly the facts and circumstances
involved in the rulings of the accused are pertaining to
the Power of Attorney. But the present case is filed by
one of the authorised person on behalf of the Company
and the Company Directors have passed resolution to
prosecute this case by the PW-1. To substantiate the
said facts, PW-1 has marked Ex.P-1 Board of Resolution
and further, the facts and circumstances involved in the
said ruling are entirely different from the present set of
facts. As such it is not helpful to the case of the accused.
On the other hand the accused also admitted the
following points in his cross examination that ;
13 C.C.No.13657/2013
" I am not aware of the transaction made with the
Complainant. It is not true to say that, I am deposing
falsely even though I am aware of the complainant
company and also the transaction made with the
Complainant and also making payment to the
complainant company. It is true to say that the Ex.P-2
cheque is belonging to me and my company. I have
not issued any notice to Pearl Polymers for return of
the disputed cheque. I have not filed any complaint
before any Court of law or before police for misusing
cheque i.e., Ex.P.2 against complainant firm and
Pearl Polymers. It is not true to say that, I have issued
the cheque to the complainant firm. Hence I have not
taken any action against the complainant firm and pearl
polymers".
14. So, on perusal of the admissions of DW-1, it is
crystal clear that he will verify about the transactions
with the Complainant for a period of 01.04.2011 to
31.12.2011 and he has also admitted that the signature
on Ex.P-2 Cheque and he also admitted that the cheque
belongs to his Company and he also admitted that he
has not issued any notice to Pearl Polymers Company for
return of disputed cheque and he has also admitted that
he has not made any Complaint to Police for misusing
14 C.C.No.13657/2013
of the cheque by Pearl Polymer Company and he also
admitted that about the filing of the present case by the
Complainant. So the said admissions of DW-1
corroborates with the Complainant case that about the
having of transaction between the Complainant
Company and accused Nos.1 and 2. Because to the PW-1
the accused counsel suggested the following points that
" C¥Á¢vÀ ¸ÀA¸ÉÝAiÉÆA¢UÉ £ÀqÉzÀ ¸ÀA¥ÀÇtð ªÀåªÀºÁgÀ ºÉÊzÀgÁ¨Ázï
±ÁSÉAiÀÄ°è £ÀqÉ¢gÀÄvÀÛzÉ JAzÀgÉ ¸Àj. £Á£ÀÄ ªÉÊAiÀÄQÛPÀªÁV F ªÀåªÀºÁgÀzÀ°è
¨sÁVAiÀiÁV®è JAzÀgÉ ¸Àj. ºÉÊzÀgÁ¨Ázï£À°è £ÀqÉzÀ ªÀåªÀºÁgÀzÀ §UÉÎ £À£ÀUÉ
ªÉÊAiÀÄQÛPÀ ªÀiÁ»w E®è JAzÀgÉ ¸Àj''
15. So the said suggestion to the PW-1 by the
accused counsel corroborates with the Complainant case
that definitely they have transactions between the
Complainant and Accused Nos.1 and 2. Hence, the
Complainant Company has supplied the several
materials as pleaded in the complaint and chief-
examination of PW-1. Accordingly, to discharge the
debts, accused Nos.1 and 2 have issued Ex.P-2 cheque
15 C.C.No.13657/2013
but surprisingly the said cheque was came to be
dishonoured as per Ex.P-3 documents and Notice also
issued as per Ex.P-17 documents and it was duly served
on the accused as Ex.P-19 to 24 documents. Further, on
perusal of the significant documents of Complainant i.e.,
Ex.P-4 to 13 they are list of outstanding bills and
Invoices clearly indicates to the Court about supplying of
materials by the Complainant Company to the accused
Nos.1 and 2 and having dues of Rs.78,89,015/-.
Further, on perusal of Ex.P-15 Articles of Association
and Memorandum of Association and Ex.P-15
Registration Certificate, the complainant company has
its own bye-laws and same was registered under
company law. Further, admittedly, the Complainant
company has issued notice to the accused as per Ex.P-
17. So the materials placed by the Complainant
Company as per Ex.P-1 to 25, documents have
corroborates with each other about, passing of Board
Resolution by the Complainant company in favour of
PW-1 to prosecute the case for the recovery of debts
from accused Nos.1 and 2 and issuance of Ex.P-2
16 C.C.No.13657/2013
cheque, by the accused Nos.1 and 2 for return of
amount ie.., for the supply of the materials by the
Complainant company. But the said cheque was came
to be dishonoured and thereafter notice has been issued,
even though accused have not complied. Hence, the
complainant has constrained to file the present
complaint.
16. Of-course contrary to the Complainant case
accused No.2 examined DW-2 and in his evidence, he
has stated before the Court that he issued Ex.P-2 cheque
for security purpose in the transactions held between
himself and Pearl Polymers Company etc.To substantiate
his case, he has not examined any authorized persons
who belonging to the said Pearl Polymer company etc., If
at all he has issued Ex.P-2 cheque in a blank nature for
security purpose. So, in the absence of said evidence
pertaining to the Polymer Company any amount of
evidence placed by the DW-1 and arguments addressed
by the accused counsel have no merits, because accused
have not proved before the Court that about issuance of
17 C.C.No.13657/2013
debt in favour of Pearl Polymer Company. On the other
hand the Complainant as well as PW-1 has categorically
proved before the Court that Ex.P-2 cheque is belongs to
the accused Nos.1 and 2 and as per the invoices the
complainant company has supplied the materials and to
the said materials the accused Nos.1 and 2 are having
due of Rs.78,88,915/- To discharge the said debts
accused Nos.1 and 2 have issued cheque but it was
dishonoured and notice was duly served, even though
accused have not complied. Hence, the complainant is
entitled for the relief's as sought for in the complaint.
17. The complainant counsel has relied upon the
following rulings in which their Lordship held that ;
1. (2010) 11 SCC 441 : Rangappa V/s Sri.Mohan.
2. DELHI HIGH COURT : Vijender Singh V/s M/s
Eicher Motors Limited and another.
Crl.M.C.No.1454/2011.
3. (2002) 6 SCC 426 : ICDS Ltd., V/s Beena Shabeer
and another.
4. Karnataka High Court Crl.R.P.No.54/2011
V.V.Chari V/s M/s Meenakshi Developers Dated
21.08.2018.
18 C.C.No.13657/2013
5. High Court of Madhya Pradesh CRR 5263/2018
Sri.Ragini Guptha V/s Piyush Dutt Sharma dated
07.032.2019
6. 2019 (1) KAR.L.R.689 (SC) : Bir Singh V/s
Mukesh Kumar
7. Supreme Court of India in Criminal Appeal
No.636/2019 in the case of Basalingappa V/s
Mudibasappa dated : 09.04.2019.
8. Supreme Court of India in Criminal Appeal No.61-
62/2011 in the case of M/s Shree Daneshwari
Traders - V/s Sanjay Jain and another dated :
21.08.2019.
a) Once issuance of cheque is admitted by the
accused then the presumption U/s 139 of N.I.Act for
existence of a legally enforceable debt or liability is in
favour of Complainant.
b) If cheque is issued for guarantee purpose then
also Sec.138 of N.I.Act is attracts.
c) Mere taking defence by the accused about the
issuance of blank cheque in favour of the some other
person are not sufficient to disbelieve the complainant
case etc.
18. So, as per the rulings of the Complainant
company once issuance of cheque is admitted by the
19 C.C.No.13657/2013
accused then the presumption U/s 138 and 139 are
applicable to the complainant case etc., Accordingly, I
am of the opinion that Complainant has categorically,
cogently and corroboratively proved his case by way of
oral and documentary evidence. As well as on
admissions in the mouth of DW-1 as per the ingredients
of Sec.138 of N.I.Act. Of course PW-1 has admitted the
aforesaid points that he is not aware about the
transactions those are held at Hyderabad Office etc., are
not sufficient to disbelieve the complainant case,
because accused has not proved before the Court that
the transactions between Pearl Polymer company and
himself and issuance of Ex.P-2 cheque in favour of the
said company as well as pleaded in his evidence. So, In
the absence of the proof of the said fact, I am of the
opinion that the accused has miserably failed to
disprove the complainant case in a proper manner as
specified U/s 139 of N.I.Act. Hence, I am of the
considered opinion that accused is liable to be convicted
for the offence punishable U/s 138 of Negotiable
20 C.C.No.13657/2013
Instrument Act as he is found guilty and answer this
Point No.1 in the Affirmative.
19. Point No.2 : In view of the above
discussions as stated supra and my findings on Point
No.1, I proceed to pass the following :
ORDER
Acting U/s 255(2) of the Code of Criminal Procedure, the Accused Nos.1 and 2 are jointly severally convicted for the offence punishable under section 138 of the Negotiable Instruments Act.
Accused Nos.1 and 2 are sentenced to pay fine amount of Rs.1,25,20,000/- (Rupees One Crore Twenty Five Lakhs and Twenty Thousand only) within one month from this date and if they fails to deposit the said fine amount, then they shall undergo a simple imprisonment for a period of 2 (Two) years.
Out of total fine amount of Rs.1,25,20,000/-, Rs.1,25,00,000/- shall be paid to the complainant as a 21 C.C.No.13657/2013 compensation as provided under section 357(1) of Code of Criminal Procedure and Rs.20,000/- shall be remitted to the State Exchequer.
(Dictated to the Stenographer, transcript computerized by him, revised, corrected and then pronounced by me in the open court on this the 6th day of January, 2020).
(MANJUNATHA.K.P ) C/c XXV A.C.M.M., BENGALURU.
ANNEXURE LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Manoj Jain.
LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT :
Ex.P.1 Board Resolution Ex.P.2 Cheque Ex.P.3 Cheque return memo, Ex.P.4 List of outstanding bills Ex.P.5 to 15 Invoices, Ex.P.16 Memorandum & Articles of Association Ex.P.17 Registration Certificate, Ex.P.18 Notice, Ex.P.19 Postal receipts, Ex.P.20 to 25 Postal Acknowledgment, Ex.P.26 Crl.P.No.7023/2013.
LIST OF WITNESSES EXAMINED FOR THE ACCUSED :
D.W.1 : Anil Kumar Singh.
LIST OF DOCUMENTS MARKED FOR THE ACCUSED : Nil.
C/c XXV A.C.M.M., BENGALURU.
22 C.C.No.13657/2013