Bangalore District Court
Branch Office At No.103 vs D/O. V. Nagaraja on 1 April, 2019
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 1st DAY OF APRIL, 2019
PRESENT
Sri. Shridhar Gopalakrishna Bhat, LL.B
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.58549/2018
M/s. Mafatlal Industries Limited
A company incorporated under the
Provisions of Companies Act 1956, Having
its Registered Office at No.301 - 302,
Heritage Horizon, 3rd Floor, Opp : C.G. Road,
Navarangapura, Ahemedabad - 380009
COMPLAINANT Branch Office at No.103, 1st Floor, Prestige
Tower, Residency Road, Bengaluru -560025
Repted by its Deputy General Manager -
Mr.Rajkant Shetty
S/o Mr. Prathap Shetty
Aged about 44 years.
1) M/s. Goldrush Clothings,
A Registered Partnership Firm No.V52, 7th
Main Road, Peenya 2nd Stage, Bengaluru -
560058.
2) Smt. Veena .N
ACCUSED D/o. V. Nagaraja
Partner of M/s. Goldrush Clothing's,
Also at No.139/2, 6th Cross, Ganapathi
Nagar, Rajgopalnagar Main Road, Laggere,
Bengaluru - 560 058
Also at No.41, 5th Cross, Ganapathi Nagar,
Rajgopalnagar Main Road, Laggere,
Bengaluru - 560 058
2 C.C. No.58549/2018
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE Pleaded not guilty
ACCUSED
FINAL ORDER
Accused are acquitted
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU
JUDGMENT
The complainant Company has approached this court through its Deputy General Manager with this complaint under Sec.200 Cr.PC against the accused for the offence punishable under Section 138 r/w 141 of the Negotiable Instruments Act. (herein after referred as N.I. Act)
2. The case of the complainant is that, the Complainant Company is a registered company under the Companies Act having its registered Office at Navarangapura, Ahemadabad and its Branch Office at Bengaluru. The complainant company is engaged in the business of manufacturing, selling and dealings in various textiles, Denim products including Yarns, Fabrics, Garments and related goods and having its own reputation being century old business house of the country. It is further contended that accused no.1 is the registered partnership 3 C.C. No.58549/2018 firm engaged in manufacturing and trading business of Denim and textile goods and making of garments and other products. Accused no.2 being the partner and authorized signatory of accused no.1 looking after the day today affairs of the firm. The accused had placed purchase order to the complainant for different types of clothes worth of Rs.22,65,507/-. The accused had agreed to make the payment of the invoice amount to the complainant within 30 days from the date of receipt of the invoices. As per the instruction and purchase order of the accused, the complainant company had sent the goods and the same were received by the accused persons without any defects. The complainant company had issued invoices for the same which were also accepted by the accused without any dispute. As per the ledger account of the complainant company, the accused no.1 was in due of Rs.22,65,507/- apart from other due amounts towards over due interest, cost and other charges. The accused have failed to pay the invoice amount in stipulated time.
3. It is further case of the complainant company that after repeated reminders and personal approach by the complainant, accused no.2 being the authorized signatory of accused no.1 had issued cheque bearing No.924544 dated 24.08.2018 for Rs.2,50,000/- drawn on Canara Bank, SME Peenya branch, Bengaluru towards part payment of the due amount in favour of the complainant. As per the instruction 4 C.C. No.58549/2018 of the accused, the complainant presented the said cheque for encashment through its banker - Axis Bank Ltd., Richmond Road, Bengaluru on 24.08.2018, but the said cheque was returned dishonoured for the reason "funds insufficient" as per memo dated 27.08.2018. Thereafter the complainant got issued legal notice dtd.06.09.2018 to the accused by RPAD intimating the dishonour of cheque and calling upon them to pay the cheque amount within 15 days from the receipt of the said notice. The notice so sent was returned as "not claimed" on 18.09.2018. In spite of the service of notice, the accused did not comply with the demand made in the said notice and thereby intentionally committed the offence punishable U/s.138 of N.I. Act. Under these attending circumstances, the complainant company is constrained to file the present complaint and accordingly prayed for conviction of the accused in accordance with law in the interest of justice and equity.
4. After filing of this complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the representative of the complainant company was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons to the accused and accordingly Criminal Case was registered against the accused for the offence punishable U/s.138 of N.I. Act and summons was ordered to be issued to the accused.
5 C.C. No.58549/20185. In pursuance of the summons issued by this court, the accused no.2 has put up her appearance through her counsel and enlarged on bail. The accused no.2 represented accused no.1 also. Thereafter plea was recorded. The accused have denied the substance of accusation and claimed for trial.
6. In order to prove the case of the complainant, the representative of the complainant company is examined as CW.1 and got marked as many as 18 documents as per Ex.P1 to P18 and closed his evidence. After closure of the complainant's side evidence, statement of the accused as provided U/s.313 of Cr.PC was recorded. The accused had denied the incriminating circumstances found in the evidence of CW.1. The accused has not opted to place any evidence on her behalf and thereby evidence of the parties concluded.
7. Heard the arguments of the learned counsels for respective parties.
8. On perusal of the entire material available on file and also on hearing the arguments of the learned counsels, the points that would arise for consideration are:-
6 C.C. No.58549/20181) Whether the complainant proves that the accused No.2 being the Partner and authorized signatory of accused No.1 firm has committed the offence punishable under Section 138 of Negotiable Instrument Act as contended?
2) Whether the complainant is entitled
for the relief as prayed in the
complaint?
3) What Order?
9. The above points are answered as under;
Point Nos.1 & 2 : In negative,
Point No.3 : As per the final order,
for the following.......
REASONS
10. Point Nos. 1 and 2 : Since these two points
are inter linked and to avoid repetition they are taken together for discussion. Before peeping into the disputed facts, it is appropriate to refer the undisputed facts at this stage itself, which can be gathered from the material placed before this court. On going through the rival contention of the parties, oral and documentary evidence, it is clear that there is no dispute that the complainant company is the company engaged in the business of manufacturing, selling and dealing in various textiles and Denim products. Further 7 C.C. No.58549/2018 accused no.1 is the firm and accused no.2 is its partner-
cum-authorized signatory and it is engaged in manufacturing and trading business of Denim and Textile goods and making of garments and other products as put up by the complainant. Further it is admitted fact that there was a transaction between the complainant company and accused no.1 firm. Further it is not in dispute that cheque in question belonged to the accused no.1 firm and the same was signed and issued by accused no.2 being its authorized signatory. Further it is clear that the complainant company presented the cheque in question for encashment and the same was dishonoured for the reason "funds insufficient"
and thereafter the complainant got issued legal notice to the accused in that regard and the notice so sent was returned as "not claimed" as put up by the complainant company. It is also admitted fact that the accused was having knowledge of the dishonour of the cheque and after bouncing of the cheque in question before issuance of notice, the accused had paid Rs.2,50,000/- to the complainant company on 01.09.2018 itself. The accused has not disputed the compliance of technical requirements of Sec.138 of N.I. Act in filing the complaint. In this regard Ex.P1 to P13 i.e cheque, bank endorsement, legal notice, five postal receipts for having sent legal notice to the accused, five returned RPAD envelops containing the notice and the date of filing of the complaint are analyzed, they clearly reveal the 8 C.C. No.58549/2018 compliance of requirements of Sec.138 of N.I. Act in filing the complaint.
11. With the above admitted facts, now the facts in issue are analyzed, as already stated the accused no.2 has denied the entire case of the complainant as to commission of the offence punishable U/s.138 of N.I. Act while recording her plea for the said offence and also denied the incriminating circumstances found in the evidence of CW.1 at the time of recording her statement U/s.313 of Cr.PC. On going through the statement of the accused and cross- examination of CW.1, it is found to be the specific defence of the accused that immediately after the bouncing of cheque, the accused had paid the cheque amount to the complainant company. The accused has also denied the due amount of Rs.22,65,507/- as claimed by the complainant company contending that there was only due amount of Rs.2,50,000/- and for payment of said entire due amount, the accused had issued cheque in question and the said amount was being paid after the bouncing of cheque before issuance of notice. Though the accused has paid entire due amount and though there was no any due, the complainant company has filed false complaint. The accused has also denied status of the complainant company as registered company and authority of CW.1 to file and prosecute the present complaint on behalf of the complainant company and also his knowledge 9 C.C. No.58549/2018 as to facts of this case and accordingly prayed for acquittal in the interest of justice and equity.
12. Relying on the oral and documentary evidence, the learned counsels for respective parties vehemently argued as to the contention of the parties. At the outset, it is to be noted that though during cross-examination of CW.1, the accused has disputed as to status of the complainant company as registered company and authority of CW.1 to file and prosecute the complaint on behalf of the complainant company, the same was not much pressed during the course of argument. In this case, admittedly it is not the specific defence of the accused that the complainant company is not intended to file and prosecute the present case against the accused. In this regard, this court is being guided by the ruling of our Hon'ble High Court reported in ILR 2006 KAR 1929, in which it was held that "the question of authorization to such persons to file the complaint arises only if the accused takes up a specific plea that company did not intend to prosecute him for the offence or that there is some material before the court to indicate that the complainant company has no intention to prosecute the accused". Therefore this court did not find much substance in the contention of the accused in this regard. Further suggestion put to the mouth of CW.1 on behalf of the accused reveals that the accused admits that the complainant is the company and she had transaction with the complainant company.10 C.C. No.58549/2018
13. The only prime specific defence of the accused is found to be that the cheque in question was issued for payment of entire due amount in favour of the complainant and the accused had paid entire cheque amount after bouncing of the cheque and before issuance of the notice itself and thereby the accused has not committed any offence as alleged. Further the accused has specifically denied the due amount of Rs.22,65,507/- as put up by the complainant. In this regard it is pertinent to note that admittedly the cheque in question was issued by the accused no.2 being the authorized signatory and partner of the accused no.1 firm towards discharge of legally recoverable debt. Even since the accused No.2 has admitted the cheque in question and its issuance in favour of the complainant company as provided U/s.139 of N.I. Act, it attracts statutory presumption that the cheque in question was issued in favour of the complainant company towards payment of the due amount. As provided U/s.118 of the N.I. Act it is also to be presumed that the cheque in question was issued on the date and for the amount mentioned therein. As already stated in that regard there is no dispute.
14. Now the contention of the accused as to plea of discharge is analyzed, it is clear from the cross-examination of CW.1 that after bouncing of the Ex.P1-cheque and before issuance of notice, the accused has paid Rs.2,50,000/- in 11 C.C. No.58549/2018 favour of the complainant company. It is the specific evidence of CW.1 during his cross-examination that "F ¥ÀæPÀgÀtzÀ°è£À ZÉPï ¨Ë£ïì DzÀ £ÀAvÀgÀ ¢£ÁAPÀ 1.9.2018 gÀAzÀÄ CgÉÆæ ¥Á®ÄUÁjPÁ ¸ÀA¸ÉÞ¬ÄAzÀ ¦ügÁå¢zÁgÀ PÀA¥À¤UÉ JgÀqÀƪÀgÉ ®PÀë gÀÆ¥Á¬Ä ¥ÁªÀwAiÀiÁVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj." This version of CW.1 reveals that the accused has paid Rs.2,50,000/- to the complainant company on 01.09.2018. Now the accused claims that the said amount was towards payment of the cheque amount and it was issued towards payment of entire due amount in favour of the complainant company. In this regard, as argued by the learned counsel for the accused, the contents of legal notice, complaint averments and also examination-in-chief of CW.1 are analyzed, nowhere the complainant has stated as to payment of this amount by the accused in favour of the complainant company. Only during cross-examination, CW.1 admits the payment of Rs.2,50,000/- on 01.09.2018 by the accused. It is pertinent to note that Ex.P1-cheque was found to be bounced on 27.08.2018 as found in Ex.P2- bank endorsement for the reason "funds insufficient". As found in Ex.P3 the complainant got issued legal notice dtd.06.09.2018 on 07.09.2018 as found in Ex.P4 to P8- postal receipts. Therefore it is clear that after bouncing of Ex.P1 before issuance of legal notice Ex.P3, the accused had paid Rs.2,50,000/- on 01.09.2018 itself. Now with this aspect, the contents of the legal notice and complaint 12 C.C. No.58549/2018 averments are analyzed, nowhere the complainant has stated as to payment made by the accused. When admittedly amount was being paid after bouncing of the cheque and before issuance of legal notice, the complainant ought to have revealed the payment made by the accused. But it is found that the complainant has suppressed the said fact in the notice, in the complaint as well as in his affidavit evidence.
15. In this regard it is pertinent to note that during the course of argument, the learned counsel for the accused vehemently argued that the amount paid by the complainant on 01.09.2018 was towards payment of the amount in respect of earlier cheque issued by the accused and not with regard to the cheque in question. In this regard, when the defence evidence was closed, the counsel for the complainant filed a memo with one e-mail communication, xerox copy of the cheque bearing No.924543 issued by the accused, copy of the account statement relating to the transaction of the accused. But as already sated absolutely there is no averments in that regard either in the notice or in the complaint. Therefore as argued by the learned counsel for the accused, on going through the notice and complaint averments, it appears that there is suppression of real fact by the complainant. Further it is to be noted that the accused has come up with specific contention that there was 13 C.C. No.58549/2018 due of Rs.2,50,000/- only and not Rs.22,65,507/- as claimed by the complainant. Even during the course of cross-examination the specific suggestion put to the mouth of CW.1 in that regard. No doubt, CW.1 has denied the said suggestion. But it is pertinent to note that the complainant claims total due amount of Rs.22,65,507/- out of which, for payment of Rs.2,50,000/- the present cheque in question was issued. In the light of the specific contention of the accused, the complainant ought to have produced statement of account relating to the transaction of the accused to show the due amount. But for the reason best known to the complainant, the complainant has not opted to produce authorized account statement relating to the transaction of the accused. No doubt as argued by the learned counsel for the complainant, the complainant has produced four tax invoices as per Ex.P14 to P17. But the said documents do not reveal the due amount, as claimed by the complainant. In this case as already sated the counsel for the complainant has produced xerox copy of the account statement relating to the transaction of the accused firm. But the said document is not produced in evidence and even the said document is not authenticated. Therefore no importance could be given to the said document. In this regard as argued by the learned counsel for the accused, adverse inference has to be drawn against the complainant. In this case, the counsel for the complainant has also produced e-14 C.C. No.58549/2018
mail communication with xerox copy of the earlier cheque contending that the amount of Rs.2,50,000/- paid by the accused was relating to previous cheque bearing No.924543. Again this document is also not produced during evidence and there is no whisper in this regard either in the legal notice, complaint or in the evidence of CW.1. Therefore the complainant cannot take the assistance of the said documents. The matter would have been different, if the complainant reveals the said fact in the notice, in the complaint and thereafter produces this document as evidence during the course of evidence. Further it is interesting to note that if at all the amount paid was towards previous cheque, the total due amount as on the date of filing of this complaint should have been Rs.20,15,507/- and not Rs.22,65,507/- as claimed by the complainant. Under these attending circumstances, as argued by the learned counsel for the accused, one cannot over rule out that they are after thought documents in view of the specific admission given by CW.1 during his cross-examination. Hence considering all these aspects, this court is of the considered view that the complainant has suppressed the real fact and the defence taken up by the accused is found to be probable. It appears that after bouncing of the cheque in question, the accused has made payment of the cheque amount before issuance of the notice itself. Therefore in the light of the provisions of Sec.138 of N.I. Act, it cannot be 15 C.C. No.58549/2018 held that the accused has committed the offence punishable U/s.138 of N.I. Act as put up by the complainant. No doubt it is clear that the cheque in question was issued by accused no.2 towards discharge of legally recoverable debt, but since the accused had made payment of the cheque amount, the offence alleged against the accused cannot be accepted.
16. In the ruling of our Hon'ble High Court reported in 2013 (1) DCR 326 - (Nandini Agro Fertilizers Vs D. Satish) - it is held that - "If there are circumstances to prove the probable defence, that itself is sufficient to dismiss the complaint". In this case as argued by the learned counsel for the complainant, accused has not stepped into the witness box to prove her defence. But it is well settled law through catena of decisions that it is not imperative on the part of the accused to step into the witness box and accused can take assistance of the facts brought out during cross- examination of the complainant side witness in that regard. In this case also in the light of the defence of the accused evidence on file is analyzed, the non-examination of the accused cannot be made much. Thus considering all these aspects, this court is of the considered view that the complainant company has failed to prove Point No.1 as against the accused as to the commission of the offence as alleged and as such Point No.1 is required to be answered in negative. It is needless to say that when the complainant 16 C.C. No.58549/2018 company failed to prove point no.1 in its favour, it goes without saying that the complainant company cannot be granted with any relief as sought for in this case. Hence, point Nos.1 and 2 are required to be answered in negative and answered accordingly.
17. Point No.3: For the reasons discussed in connection with Point Nos.1 and 2 this court proceed to pass the following....
ORDER Acting under Section 255(1) of Cr.PC accused is hereby acquitted for the offence punishable under Section 138 of Negotiable Instrument Act.
The bail bond of accused stands cancelled. The cash security of Rs.2,500/- is deposited by the accused is ordered to be refunded in her favour through account payee cheque with proper identification in accordance with law, if refund voucher is furnished.
(Typed to my dictation by the stenographer, directly on computer, corrected, signed and then pronounced by me in the open court on this the 1st day of April, 2019) (SHRIDHAR GOPALAKRISHNA BHAT) XIV ADDL. C.M.M., BENGALURU 17 C.C. No.58549/2018 ANNEXURE Witnesses examined for the complainant:
CW.1 : Sri. Rajkant Shetty
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1 : Cheque
Ex.P2 : Bank endorsement
Ex.P3 : Legal Notice
Ex.P4 to P8 : Postal receipts
Ex.P9 to P13 : Returned postal covers
Ex.P14 to P17 : Tax invoices
Ex.P18 : Certified true copy of the Resolution passed
by the Board of Directors of the Company
Documents marked for the defence:
NIL
(SHRIDHAR GOPALAKRISHNA BHAT)
XIV ADDL. C.M.M., BENGALURU