Bangalore District Court
M/S. Rx Vision vs ) M/S. Divyajyothi Distributor on 19 July, 2021
1 C.C. No.29894/2019 Judgt.
IN THE COURT OF THE XXI ACMM, BENGALURU
Dated: This the 19th day of July, 2021.
Present:
Smt. Reshma H.K., B.A.,LL.B.,
XXI ACMM, Bengaluru
C.C.No.29894/2019
Complainant : M/S. RX VISION,
R/at:No.4, 2nd floor,
4th main road, New Thargupete,
Bangalore - 02.
Rep by its Proprietor,
Mr.Suresh Kumar Kanunga,
Now represented by
Authorised letter of GPA holder:-
Sachin Kanunaga,
S/o Suresh Kanunga,
Aged about 28 years.
(By Sri.G.A.S., adv.)
V/s
Accused : 1) M/S. DivyaJyothi Distributor,
Sri.Yellamma Devi Complex,
LLR Road, Shivamogga - 577201.
Represented by Propritor
& Authorized Signatory,
Mr.Rudraprasad.
2) MR.RUDRAPRASAD,
S/o Not known,
Age. Major,
Authorized signatory
and Propritor,
2 C.C. No.29894/2019 Judgt.
M/S.DIVYAJYOTHI DISTRIBUTOR,
Sri.Yellamma Devi Complex,
LLR Road, Shivamogga - 577201.
(By Sri.T.R.M., Adv.)
JUDGMENT
This is the complaint filed by the complainant under section 200 of Cr.P.C. against the accused for the offence punishable under section 138 of Negotiable Instruments Act and to take cognizance of the offence to punish the accused in accordance with law.
2. The factual matrix of the complaint is that, the complainant and accused are known to each other. As per the case of the complainant he has supplied pharmaceutical products to accused firm i.e., M/S DivyaJyothi Distributors at Shivamogga and the accused purchased pharmaceutical products from the complainant on credit basis and as on date:30.06.2017 and thereby accused is liable to pay the amount of Rs.11,10,349/- to the complainant up to June-2017. Further, submits that, towards dischargeable debt of above said debt the accused issued 22 cheques in favour of complainant. Out of which, as per the instructions of the accused complainant presented the three cheques i.e., Cheque bearing No.025509 dated:25-07-2019, 3 C.C. No.29894/2019 Judgt. Cheque bearing No.025489 dated:25-08-2019 and Cheque bearing No.025490 dated:25-09-2019 drawn at Corporation Bank, Shivamogga each cheque for an amount of Rs.50,000/- for encashment through his banker i.e., Corporation Bank, City Branch, Bengaluru, but to the shock and surprise of the complainant said cheques returned as 'Funds Insufficient' as per the bank memo. Thereafter, the complainant approached the accused and inform about the dishonor of the said cheques. Further, the complainant issued legal notice to the accused through R.P.A.D dated 04.10.2019 calling upon him to pay the amount covered under the cheques within the stipulated period and the same was served on accused. Inspite of service of notice, accused failed to repay the said cheques amount. Hence, the complainant filed the present complaint against the accused for the offence punishable under section 138 of Negotiable Instrument Act.
3. This court after perusing records, cognizance of the offence was taken and there on sworn statement of the complainant was also recorded. The criminal case has been registered against the accused for the offence punishable under section 138 of N.I. Act. 4 C.C. No.29894/2019 Judgt.
4. Upon service of summons, accused appeared through his counsel and enlarged on bail. Thereafter, the court has recorded the plea of the accused and the accused not pleaded guilty of the offence and claims to be tried. Hence, the case was posted for trial.
5. The complainant in order to prove its case, the Authorized GPA holder of the complainant company examined as PW-1 and got marked 11 documents i.e., Ex.P-1 to Ex.P-11. Three Original Cheques marked as Ex.P.1 to Ex.P.3, Signatures of accused marked as Ex.P.1(a) to Ex.P.3(a), Return Memos marked as Ex.P.4 to Ex.P.6, Legal Notice marked as Ex.P.7, Track Consignment marked as Ex.P.8 & Ex.P.9, GST Registration Certificate marked as Ex.P.10 and General Power of Attorney marked as Ex.P.11.
6. After completion of the evidence of complainant, the substance of the evidence has been read over and explained to the accused under section 313 of Cr.P.C. the accused denied the incriminating evidence available against him and choose to lead evidence and examined as DW.1 and marked Ex.D.1 and Ex.D.2.
7. Heard arguments and perused the materials placed before me. The following points would arise for consideration. 5 C.C. No.29894/2019 Judgt.
1. Whether the complainant proves that the accused issued three cheques bearing No.025509 dated:25.07.2019, Cheque bearing No.025489 dated:25-08-2019 and Cheque bearing No.025490 dated:25-09- 2019 for the legally enforceable debt of Rs.50,000/- each, total Rs.1,50,000/- in favour of complainant and they were presented within the validity period and same are returned unpaid on account of "Funds Insufficient" and thereby caused the dishonor of cheques and inspite of legal notice, the accused fail to make payment and thereby committed an offence punishable under section 138 of Negotiable Instrument Act?
2. What Order?
8. My findings on the above points are as under:-
Point No.1: In the "Affirmative"
Point No.2: As per the final orders for the following:
REASONS
9. Point No.1:
On over all perusal of the oral and documentary evidence adduced by both the parties, it reveals that there is no dispute with regard to issuance of cheques and the signature of the 6 C.C. No.29894/2019 Judgt. accused on the cheques. Further the complainant averred that accused has issued Ex.P.1 to Ex.P.3 Cheques for the payment of medical products supplied by him. On the other hand the version of the accused is that, he has issued the Ex.P1 to Ex.P.3 cheques infavour of the complainant only for security purpose and not for the payment of the amount mentioned in the cheques. Under the circumstances it is worth to mention that once the cheques relates to the account of the accused and he accepts and admits the signature on the said cheques, then initial presumption as contemplated under section 139 of the N.I.Act has to be raised by the court infavour of the complainant.
10. Further, in a decision the Hon'ble Apex court, reported in AIR 2010 SC 1898 in a case of Rangappa V/s Mohan the Hon'ble Apex Court held that:-
"Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant. Therefore, in view of above said deposition, a presumption under section 139 of Negotiable Instruments Act can be drawn 7 C.C. No.29894/2019 Judgt. in favour of complainant that the said cheque was issued for a valid consideration. Now it is for the accused to rebut the said presumption. It is a settled law that though the onus on the accused to rebut the presumption is that of preponderance of probabilities but still the accused is required to adduce cogent evidence to rebut the presumption. Mere assertions and explanations of fact in the Court will not amount to rebuttal of presumption. In order to rebut the presumption under section 139 of N.I. Act, the accused by cogent evidence, has to prove the circumstance under which cheque was issued.
As per the above decision of the Hon'ble Apex Court, when accused admitted the issuance of cheque and its signature on the said cheque, then the burden shifted to the accused under which circumstances the cheque has been issued to the complainant.
11. Further, to rebut the presumption available to the complainant, the accused stepped into the witness box and got examined himself as DW.1. In the said evidence accused specifically contended that he has issued 22 cheques to the 8 C.C. No.29894/2019 Judgt. complainant for security purpose during the period of 2015 to 2017. Further, contended that he has closed his shop in the year 2017 and hence thereafter he has not received any material from the complainant and also by that time there was no due to the complainant. Thereby accused contended that there was no legally recoverable debt as stated by the complainant.
12. A perusal of materials on record, it shows that as per the contention of the accused he has closed his "DivyaJyothi Distributors" business in the year 2017 itself and thereafter there were no transaction with the complainant. However, during the course of cross examination, DW.1/accused himself admitted that he has repaid the amount of Rs.50,349/- to the complainant on 25.12.2018. This statement of the accused creates doubt in the mind of court regarding earlier statement of the accused that he was not having any transaction with the complainant after 2017 as both are contradictory to each other.
13. Further, accused denied the very service of statutory notice by stating that he was not residing at Shivmogga since 2018, as he was working at 'Man Care Health Care' at Delhi as a Karnataka Area Sales Manager. Further, contended that he came to know 9 C.C. No.29894/2019 Judgt. about the filing of the present complaint only after receiving summons by the police. In support of his contention accused produced Ex.D.1 and Ex.D.2. Ex.D.1 is the Appointment letter dated:16.08.2018. However, on careful perusal of Ex.P.7 to Ex.P.9, it reveals that the statutory notice dated:04.10.2019 issued to the accused for the address "M/S.DivyaJyothi Distributors, Sri.Yellammadevi complex, LLR Road, Shivamogga - 577201 Rep:- by its proprietor Mr.Rudrappa H.B., M/s.DivyaJothi Distributors, Sri.Yellammadevi Complex, LLR Road, Shivamogga- 577201". Furthermore, in the cross examination DW.1/ accused pleaded his ignorance towards the postal acknowledgement, which is having seal of 'Divyajyothi Distributors'. It is worth to note that, when there is a prima-facie evidence available before the court regarding due service of statutory notice i.e., Ex.P.7 to Ex.P.9, then it is the burden of the accused that he has to prove his contention that he was not served with the legal notice as he closed his shop. But, accused failed to produce any evidence before the court that he was closed his 'Divyajyothi Distributors'in the year 2018 itself.
14. Further, in the chief examination DW.1 / accused contended that he closed "Divyajyothi Distributors" in the year 2017 itself 10 C.C. No.29894/2019 Judgt. and thereafter complainant has not supplied any materials to his shop. Further, contended that he has cleared all the dues to the complainant in the year 2017 itself. Further, stated that he is working at Delhi at "Man Care Health Care" as a Karnataka Area Sales Manager in the year 2018 and hence he was not residing in the address mentioned in the statutory notice. Therefore, contended that he was not served with any notice as stated in the complaint and he got information through police at the time of serving the summons in the present case.
15. As per the above evidence of DW.1, the accused closed his business in the year 2017 and thereafter there was no transaction with the complainant. However, during the course of cross examination DW.1 clearly admitted that he has returned Rs.50,349/- to the complainant on 25.12.2018. This admission of the accused contradicted with his earlier statement that there were no transactions with the complainant after closing his shop in the year 2017. Hence, this court is of the opinion that a mere statement by the accused is not sufficient to relay on the oral statement of the accused and accused has to prove is version by providing cogent and reliable evidence. However accused failed 11 C.C. No.29894/2019 Judgt. to provide any peace of material to show that he cleared all the dues to the complainant before 2018 and also failed to provide any evidence to show that he has closed his shop in the year 2017. Further, in the cross examination DW.1 stated that he wrote a letter to the Drugs Controller regarding closing of his shop, but he has not produced the copy of that letter before the court. Hence, this court is of the opinion that the above stated contention of the accused holds no water.
16. Further, in a decision passed by the Hon'ble Supreme Court of India in the case of T. Vasanthakumar -Vs- Vijayakumari reported in 2015(4) KCCR 2881 (SC), wherein which it is held that -
"Sections 138 and 139-Acquittal-if justified-Accused not disputing issuane of cheque and his signature on it, Plea that it was issued long back as security and that loan amount was repaid-Not supported by any evidence- Fact that date was printed, would not lend any evidence to case of accused-Acquittal not proper."
17. Further, the decision passed by the Hon'ble Supreme Court of India in the case of T.P. Murugan through Lrs. & Anr. -Vs- 12 C.C. No.29894/2019 Judgt. Bojan reported in 2018 SAR (Criminal) 923 wherein which it is held that -
" Secs. 139, 138- Dishonour of cheques- Legally enforceable debt or liability - Presumption- Under Section 139 of the N.I. Act, once a cheque has been signed and issued in favour of the holder, there is statutory presumption that it is issued in discharge of a legally enforceable debt or liability. This presumption is a rebuttable one, if the issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security for a loan
- In the present case, the respondent has failed to produce any credible evidence to rebut the statutory presumption-The appellants have proved their case by overwhelming evidence to establish that the two cheques were issued towards the discharge of an existing liability and legally enforceable debt- the respondent having admitted that the cheques and Pronote were signed by him, the presumption under S. 139 would operate-
the respondent failed to rebut the presumption by adducing any cogent or credible evidence- hence, his defence is 13 C.C. No.29894/2019 Judgt. rejected - In view of the facts and circumstances, the impugned order passed in Criminal Revision Petition is hereby set aside, and the order of conviction and fine passed by the Trial Court is restored."
18. Further, in a decision reported in 2014 (3) DCR 558 in a case of "Sripad V/s Ramdas M Shet" the Hon'ble court held that;
" Mere a distorted version or mere taking up the plea or the defence that he is not liable to pay any amount or he discharge the amount are not sufficient to put back the burden on to the complainant to prove his case beyond reasonable doubt"
The ratio laid down in all these decisions are aptly applicable to the present case. In the case on hand, though the accused contended that there is no legally recoverable debt as he had issued Ext.P.1 to Ex.P.3/ Cheques as a security, but failed to prove his case by adducing cogent and reliable evidence. A mere saying is not sufficient to rebut the statutory presumption available to the complainant.
14 C.C. No.29894/2019 Judgt.
19. Furthermore, the very contention of the accused is that the complainant has misused the cheques which were issued by the accused for security purpose and filed the present complaint. However, in the cross examination, DW.1 / accused deposed that he has not taken any action against the complainant for using the cheques which was given for security. Therefore, I am of the opinion that if at all accused had not issued present cheques to the complainant for discharging of his legally enforceable debt then definitely accused would have initiated legal proceedings like lodging police complaint or issuing legal notice against the complainant, even he could have immediately given instructions to his banker for stop payment regarding the present cheques in question. Because no prudent man will keep quite, when his cheques are misused by somebody else. However, in the present case Ex.P.1 to Ex.P.3 Cheques returned for the reason "Funds insufficient". Hence, this court is of the view that the defence raised by the accused is not probable and acceptable.
20. More so, the complainant succeeded in drawing above stated statutory presumption in his favour. Furthermore, on basis of the material evidence placed before the court, it clearly 15 C.C. No.29894/2019 Judgt. establishes that the accused had issued Ex.P.1 to Ex.P.3 cheques for an amount of Rs.1,50,000/- as a part payment to the complainant and the said cheque presented on the said day it was returned without honoring the same on account of "Funds insufficient" maintained in the account of the accused. Further on perusing the EX-P.8 and Ex.P.9 the Track Consignment receipts and EX-P.7 the legal notice all these discloses that, inspite of the intimation of the dishonour of cheque accused did not comply the demand made in the legal notice. All these facts clearly establishes that, accused committed an offence under section 138 of N.I. Act. Therefore, I answered this point in the "Affirmative".
21. Point NO.2:- Having held the complainant has proved point No.1, the next aspect that arises for my consideration is regarding sentence to be imposed on the accused for having committed an offense punishable under section 138 of Negotiable Instrument Act. It could be seen from the materials that the complainant presented the cheques for encashment and the same were returned unpaid. Further, accused fails to repay the said amount about nearly 02 years and made the complainant to suffer for want of funds in his hands. So I am of 16 C.C. No.29894/2019 Judgt. the opinion that it is required to direct the accused to pay the compensation to the complainant and in that event only it will meet the ends of justice. Hence, for the foregoing reasons and finding to point No.1, I proceed to pass the following:
ORDER By invoking the power conferred under section 255(2) of Cr.P.C., the accused is convicted and sentenced to pay a fine of Rs.1,68,000/- for the offence punishable U/S.138 of N.I. Act and in default to pay the fine amount the accused shall undergo simple Imprisonment for one year.
Further, accused is directed to deposit the fine amount of Rs.5,000/- to the State out of fine amount.
Further, Acting under section 357(1)
(b) of Cr.P.C. the entire fine amount of Rs.1,63,000/- on recovery shall be paid to the complainant as compensation.
Bail bond and surety bond of the accused shall stand cancelled.
Supply a free copy of this judgment to the accused.
17 C.C. No.29894/2019 Judgt.
Issue conviction warrant.
(Dictated to the Stenographer directly on computer, typed by her, corrected by me, signed then pronounced in the open court on this the 19 th day of July, 2021.) (SMT.RESHMA H.K.) XXI ACMM, Bengaluru ANNEXURE
1. List of witnesses examined on behalf of the complainant:
PW-1 : Sachin Kanunga
2. List of witnesses examined on behalf of the accused:
DW-1 : Rudra Prasad.H.B
3. List of documents marked on behalf the
complainant:
Ex.P.1 to 3 : Three Original Cheques
Ex.P.1(a) to Ex.P.3(a) : Signatures of accused
Ex.P.4 to Ex.P.6 : Return memos
Ex.P.7 : Legal Notice
Ex.P.8 & Ex.P.9 : Track Consignment
Ex.P.10 : GST Registration Certificate
Ex.P.11 : General Power of Attorney
4. List of documents marked on behalf of the accused:
Ex.D.1 : Appointment Letter 18 C.C. No.29894/2019 Judgt. Ex.D.1(a) : Certificate U/s 65B of the I.E.Act Ex.D.2 : Bank Statement of the Accused (SMT.RESHMA H.K.) XXI ACMM, Bengaluru