Bangalore District Court
M/S Printech Digital Imaging Pvt.Ltd vs Sri.M/S R.K.Enterprises on 22 October, 2021
KABC010203222019
IN THE COURT OF THE LVI ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH 57)
:Present :
Smt.K.G.Chintha, B.Sc., LL.B.,
LVI Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 22nd Day of October, 2021.
Crl. Appeal No.1420/2019.
APPELLANT 1. M/s Printech Digital Imaging Pvt.Ltd.
No.270/2,
Near Bhanu Nursing Home,
Bommanahalli,
Bengaluru 560068
Rep. by its Authorized signatory
Sri.Bhagvat Prasad Bharatula.
2. Sri. Bhagvat Prasad Bharatula,
S/o Bharatula Laxminarayana
Sharma,
Managing Director,
M/s Printech Digital Imaging Pvt.Ltd.
R/at No.516, 15th Cross
16th main, BDA Complex,
4th Sector, HSR Layout,
Bengaluru 560102.
(By Sri.B.V., Advocate)
2 Crl.A.No.1420/2019
Vs.
RESPONDENT : Sri.M/s R.K.Enterprises
A Proprietorship Firm,
having its office at
No.48, 1st cross, Pipeline Road,
RPC Layout, Vijayanagar,
Bengaluru 560040.
Rep. by its proprietor,
Rakesh Patel.
(By Sri.P.T.H.. Advocate )
:JUDGMENT:
This appeal is directing against the judgment in C.C.No.444/2019 dated 01.06.2019 passed by the XXIII Addl. Chief Metropolitan Magistrate, Bengaluru against the appellant who is the accused who is convicted for the offence punishable under Sec. 138 of N.I.Act and sentenced to pay a fine of Rs.18,42,644/.
2. Appellant is the accused and the respondent is complainant before the trial court and for the sake of 3 Crl.A.No.1420/2019 convenience parties will be referred to as per their ranking before the trial court.
3. It is the case of the complainant that, complainant is the proprietorship firm engaging in supply of branded products like flex, signage, tapes, textiles etc. Accused No.1 is a private limited company engaged in printing flexes, banners etc. Accused No.2 is the managing partner and authorized signatory of accused No.1. Complainant and accused have business transaction for several years. During the course of business transaction the complainant raised certain bills with respect to the goods delivered to the accused against the orders amounting to Rs.18,37,644/. Towards discharge of the said amount the accused has issued 3 cheques bearing No.168886 dated 13.08.2018 for Rs.1,62,664/. Cheque bearing No.168887 dated 13.08.2018 for Rs.1,87,000/ and another cheque bearing No.874385 dated 18.08.2018 for Rs.14,87,980/, 4 Crl.A.No.1420/2019 in all Rs.18,37,644/, all drawn on State Bank of India, Koramangala 5th Block branch, Bengaluru in favour of complainant. On presentation of the cheques, cheque for Rs.1,62,664/ and Rs.1,87,000/ returned as "Exceeds arrangement" and cheque for Rs.14,87,980/ returned as "Payment stopped by drawer". Complainant got issued legal notice dated 06.09.2018 calling upon the accused to pay the cheque amount. The notice was duly served on the accused. In spite of receipt of legal notice the accused neither complied with the demands made by the complainant nor replied to the notice. Therefore the accused has committed the offence under Sec.138 of N.I.Act.
4. Before the trial court the accused pleaded not guilty and claimed to be tried. Complainant is examined as P.W.1 and got marked Ex.P.1 to Ex.P.35. Accused has not adduced any evidence nor marked any documents on 5 Crl.A.No.1420/2019 his behalf. Statement of accused under section 313 Cr.P.C. was taken as nil.
5. The trial court framed the following points for consideration:
1. Whether the complainant proves beyond reasonable doubt that, the amount made mentioned in Ex.P.1 to P3 cheques for sum of Rs.18,37,644/ is the legally existing debt payable by the accused to the complainant?
2. Whether the complainant proves the guilt of the accused Nos.1 and 2 for the offence punishable under Sec. 138 of N.I.Act ?
3. What order?
6. The trial court answered points No.1 and 2 in the affirmative and convicted the accused sentencing him to pay fine of Rs.18,42,644/ out of which Rs.18,37,644/ is ordered to be paid to the complainant as compensation and Rs.5,000/ to the state as fine. In default to undergo simple imprisonment of two years. 6 Crl.A.No.1420/2019
7. Being aggrieved by the judgment and conviction the accused has preferred this appeal on the following grounds:
The complainant filed an application under Sec.143(A) of NI Act seeking interim compensation and the said application came to be allowed directing the accused to pay interim compensation of Rs.3,67,528/ within 30 days. Accused were in process of trying to comply with the order for payment of interim compensation. In the meanwhile, the complainant led further evidence of P.W.1 and got marked Ex.P.1 to P.35 on 23.05.2019. Accused sought time for cross examining P.W.1. The said prayer was rejected by the trial court on the ground that the interim compensation was not yet paid. Therefore, accused could not be permitted to cross examine P.W.1 and matter was adjourned on 30.05.2019 for hearing the arguments on main. The accused filed application under Sec.311 of Cr.P.C. that they have to be 7 Crl.A.No.1420/2019 given an opportunity to cross examine P.W.1 and put up their defence. The said application came to be rejected as interim compensation was not paid. Therefore impugned judgment is bad in law. The very reading of the relevant provisions it is abundantly clear that it is not provided anywhere that if the accused fails to pay the interim compensation, he should be prevented from setting up a defence. Trial court failed to appreciate that preventing the accused to cross examine P.W.1 is denial of an opportunity, being tried without fair trial and convicted. This is against the very essence of criminal jurisprudence. The N.I.Act clearly provided for a mechanism or methodology for which interim compensation came be recovered. When a clear methodology is provided by the statute, the trial court is estopped from creating its own methodology and in the process, deny an opportunity to the accused to prove their innocence. The trial court erred in concluding that 8 Crl.A.No.1420/2019 the accused has failed to lead any rebuttal evidence and hence complainant has proved his case. The trial court completely missed the fact that when the court itself refused to permit the accused to either cross examine or lead their evidence, the question of rebuttal evidence does not arise at all.
8. The accused have a good case on merit for the reasons that the material supplied by the complainant was inferior quality and print taken on them could not be put on the advertising boards and the same was returned. The cheques in question were given as security and not towards payment of any goods as per the industry practice. The issue of defective material is well known to the complainant. Complainant with an intent to make unlawful gain has presented these cheques with intent to cause loss to the accused. If the accused has been given an opportunity to examine the complainant and to set up their defence by way of evidence, they 9 Crl.A.No.1420/2019 would have been able to prove their innocence. Further there was a delay in filing the complaint. The complainant has not filed any application seeking for condoning the delay. Cognizance of the offences has been taken without condoning the delay. Therefore, the judgment of the trial court is erroneous and judgment is liable to be set aside.
9. Heard the arguments of both side.
10. The following points arise for my consideration;
1. Whether the accused proves that he was not given sufficient opportunity to cross examine PW.1 and put up his defence by adducing evidence?
2. Whether the accused proves that there is a delay in filing the complaint?
3. Whether the judgment of the trial Court needs interference by this Court?
4. What order?
11. My answer to the above points are as follows: 10 Crl.A.No.1420/2019
Point No1 and 3 : In the Affirmative
Point No.2 : In the Negative
Point No.4 : As per the final order,
for the following:
:REASONS:
12. Point No.2: The complainant who is examined as P.W.1 has produced the cheques issued by the accused as per Ex.P.1 to 3, cheque return memo as per Ex.P.4 to P.6 dated 20.08.2018. Cheques have been presented within the time. The demand notice has been issued on 06.09.2018 within 30 days from the date of return of cheques i.e. on 20.08.2018. The notice has been sent through registered post on 06.09.2018. The seal on the postal acknowledgement Ex.P.10 and 11 discloses that the notice issued to accused No.1 is served on 26.09.2018 and notice issued to accused No.2 the managing Director of accused No.1 is served on 03.10.2018. The complaint is filed on 25.10.2018. Therefore the complaint is filed within 30 days from the 11 Crl.A.No.1420/2019 date of receipt of the notice by accused No.1, giving 15 days time to make payment of the cheque amount and complaint is filed in time. Accused has not assigned any reason as to how there is a delay in filing the complaint. The complainant has complied with all the requirements of Sec.138 of N.I.Act as regards the presentation of cheques. Demand notice issued to the accused and presentation of the cheques by the complaint are well within the time. Further this point is also considered by the trial court by separate order which has not been challenged by the accused. Hence this point is answered in the Negative.
13. Points No.1 and 3: As could be seen from the order sheet of the trial court the accused has appeared before the trial court in response to the summons served on him on 04.02.2019 and he was enlarged on bail. On the same day the accusation is read over and explained to the accused and they claimed to 12 Crl.A.No.1420/2019 have the defence. Trial court has treated the present case as summons trial case. The learned counsel for accused has filed application under Sec.145(2) of N.I.Act seeking permission to put forth his defence and the said application is allowed. Sworn statement of complainant was treated as his evidence and matter was posted for cross examination of P.W.1. The complainant also filed application under Se.143(A) of N.I.Act seeking interim compensation which was allowed as per order dated 28.02.2019. Accused was given time for payment of interim compensation of Rs.3,67,528/ till 21.03.2019. On 21.03.2019 the complainant filed application under Sec.311 of Cr.P.C. and the said application was allowed as per order dated 04.05.2019 and P.W.1 was further examinedinchief on 23.05.2019. Though the accused has sought time for cross examination of PW.1, his prayed was rejected as interim compensation was not deposited by the accused. On the same day 313 13 Crl.A.No.1420/2019 statement of accused under Sec.313 of Cr.P.C. is taken as nil, as per the decision reported in 2014 AIR SLW 3412. The defence evidence was also taken as nil and matter was posted for arguments. Thereafter that accused filed application under Sec.311 of Cr.P.C. to recall P.W.1 for cross examination as per order dated 30.05.2019 and the trial court proceeded to post the case for judgment on 01.06.2019. The order sheet of the trial court clearly goes to show that though the accused has filed application under Sec145(2) of N.I.Act he has been denied an opportunity to cross examine the complainant and also to set up his defence and to lead defence evidence. The trial court in a hurried manner as proceeded to dispose of the matter without giving an opportunity to the accused to cross examine the complainant or to adduce defence evidence. The only reason state by the trial court is interim compensation 14 Crl.A.No.1420/2019 was not paid by the accused as directed by the trial court.
14. Sec.143 (A) of N.I.Act states that, the Court trying an offence under Section 138 of N.I.Act may order the drawer of the cheque to pay interim compensation not exceeding 20% which shall be paid within 60 days from the date of the order, which may be extended for another 30 days.
15. Further Sec.143(5) of N.I.Act states that, "the interim compensation payable under this section may be recovered as if it were a fine under section 421 of the Code of Criminal Procedure, 1973 (2 of 1974)" .
16. When the very provision states that interim compensation may be recovered as if it is were a fine under Sec.421 of Cr.P.C., the trial court ought not have rejected the prayer of accused to cross examine PW.1 on the ground of nonpayment of interim compensation 15 Crl.A.No.1420/2019 specially when he has filed application under Sec.145(2) of N.I.Act and also application under Sec.311 of Cr.P.C. to recall P.W.1 for cross examination. Under such circumstances the court is of the view that the accused has been denied an opportunity to contest the case and accused has set up the defence of inferior quality of material supplied by complainant and return of the said material to the complainant.
17. A perusal of the judgment of the trial court discloses that though the accused has filed application under Sec.145(2), they have not given sufficient opportunity to cross examine P.W.1 and to lead their defence evidence. The accused has pleaded not guilty of the offences. The order sheet speaks that no opportunity was given to the accused to cross examine and to lead the defence evidence and to put forth the evidence of accused. No doubt the trial has referred to the decision of the Hon'ble Apex Court in Writ Petition (Civil) 16 Crl.A.No.1420/2019 No.18/2013 (Indian Bank Association and others V/s Union Bank of India and others). It is pertinent to note that the accused has filed application under Sec.145(2) of N.I.Act seeking permission to cross examine P.W.1 at the first instance itself when the plea was recorded.
18. Trial court judgment is based on the chief examination of P.W.1 and documents produced by him and accused was not given sufficient opportunity to contest the matter. With due respect to the judgment of the Apex Court, the court is of the view that the accused shall be given an opportunity to contest the matter and matter shall be remitted to trial court for fresh disposal in accordance with law. Accordingly the points No.1 and 3 are answered in the Affirmative.
19. Point No.4: In view of my findings on point Nos.1 to 3 above, I proceed to pass the following: 17 Crl.A.No.1420/2019
ORDER The appeal preferred by the appellant/accused under Section 374(3) Cr.P.C. is hereby allowed.
The matter is remitted back to the trial court for fresh disposal of the case in accordance with law.
The trial court shall give sufficient opportunity to accused to cross examine P.W.1 the complainant and also to adduce defence evidence.
The accused shall cooperate for conclusion of the trial within 3 months from the date of receipt of this order by the trial court.
Send back the records to the trial court along with a copy of this Judgment.
(Dictated to the Stenographer, transcribed by her, then corrected and pronounced by me in the open Court on this the 22nd day of October, 2021) (K.G.Chintha) LVI Addl.City Civil & Sessions Judge, Bengaluru.18 Crl.A.No.1420/2019
22.10.2021 A -B.V. R - P.T.H. Judgment pronounced in open Court (Vide separate order) ORDER The appeal preferred by the appellant/accused under Section 19 Crl.A.No.1420/2019 374(3) Cr.P.C. is hereby allowed.
The matter is remitted back to the trial court for fresh disposal of the case in accordance with law.
The trial court shall give sufficient opportunity to accused to cross examine P.W.1 the complainant and also to adduce defence evidence.
The accused shall cooperate for conclusion of the trial within 3 months from the date of receipt of this order by the trial court.
Send back the records to the trial court along with a copy of this Judgment.
LVI Addl.City Civil & Sessions Judge, Bengaluru.