Bangalore District Court
And Its Executive Office At Prestige ... vs No.5 on 13 October, 2021
1
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 13th DAY OF OCTOBER, 2021
PRESENT
Sri. K. GURUPRASAD, B.A., LL.B (Spl.)
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.53669/2019
M/s. Britannia Industries Limited,
A Company incorporated under the Companies
Act, 1913,
Having its Registered Office at No.5/1-A,
Hungerford Street, Kolkata - 700 017.
COMPLAINANT
And its Executive Office at Prestige Shantiniketan,
The Business Precinct, Tower C, 16th and 17th
Floors, Whitefield Main Road, Mahadevapura Post,
Bengaluru - 560 048.
Reptd by its Power of Attorney Holder- Mr.Sriram
Shekhar Velury (As per Order dtd.6.3.2020)
Mr. A. Yasotharan - Proprietor
M/s. Parvathy Agencies
ACCUSED No.5, Muthu Street, Gingee - 604 202
Also at ;
M/s. Parvathy Agencies
R/o No.85, Tindivanam Road, Gingee, Tamil Nadu -
604 202.
OFFENCE U/s.138 of Negotiable Instruments Act
PLEA OF THE
ACCUSED Pleaded not guilty
FINAL ORDER Accused is convicted
(K. GURUPRASAD)
XIV ADDL. C.M.M., BENGALURU
2
JUDGMENT
The present complaint is filed under Sec.200 Cr.PC for the offence punishable under Sec.138 of Negotiable Instruments Act.
2. It is the case of the complainant that, the accused is Proprietor of M/s.Parvathy Agencies at Gingee, Tamil Nadu State and is appointed as Authorized Wholesaler of products of complainant under Distribution Agreement dtd.03.09.2011 between complainant and accused. In pursuance of said agreement, the complainant supplied products totally worth Rs.13,87,543.69 under invoices dtd.25.02.2019 and 27.02.2019. Towards said liability, the accused issued two cheques bearing No.637671 dtd.25.02.2019 for Rs.3,99,508.33 and No.637672 dtd.27.02.2019 for Rs.9,88,035.36, both drawn on State Bank of India, Siruthozhil Branch, Vellore, Tamil Nadu in favour of the complainant. When the complainant presented the said cheques to its banker i.e., HDFC Bank, Richmond Road, Bengaluru, said cheques came to be dishonoured on 27.02.2019 and 01.03.2019 respectively for the reason "funds insufficient". When the complainant got issued legal notice dtd.22.03.2019 to the accused calling upon the accused to pay the cheques amount, the said notice was delivered at one address on 26.03.2019 and such notice sent at another address was returned with postal shara "not delivered as addressee moved".
3The accused who has failed to pay the cheques amount in spite of issuance of the notice is guilty of the offence punishable under Section 138 of N.I. Act. Hence this complaint.
3. After filing of the complaint, cognizance was taken for the offence punishable U/s.138 of N.I. Act. Sworn statement of the complainant was recorded. This court was satisfied as to prima facie case made out by the complainant for issuance of the summons 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.
4. In pursuance of the court process issued by this court, the accused has put up his appearance through his counsel and enlarged on bail. The accused has denied the substance of accusation and claimed for trial. The plea was recorded accordingly.
5. In order to prove the case of the complainant, the Power of Attorney Holder of the complainant has examined himself as PW.1 (CW.1) and got marked Ex.P1 to P15. Thereafter, statement of the accused U/s.313 of Cr.PC was recorded. The accused has not led any documentary or oral evidence, though sufficient opportunity has been given to him.
6. Heard both counsels. Perused the complaint, evidence on record and court records.
47. The following points arise for my consideration and determination;
1) Whether the complainant proves that the accused has issued cheques in question in discharge of legally enforceable debt or liability as contended by it?
2) Whether the complainant further proves that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act?
3) Whether the complainant is entitled for the relief's as prayed in the complaint?
4) What Order?
8. The above points are answered as under;
Point No.1 to 3 : In affirmative, Point No.4 : As per the final order, for the following.......
REASONS
9. Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion.
10. As regard to limitation to file this complaint, it is clear from Ex.P7 to P14 that when the complainant presented the cheques in question to its banker within three months from the 5 dates of said cheques, said cheques came to be dishonoured and that when the complainant got issued statutory notice U/s.138 of N.I. Act to the accused by registered post (within 30 days from the date of intimation of dishonour of said cheques) calling upon the accused to pay the cheques amount within 15 days from the date of service of said notice, the said notice sent by registered post, returned with postal shara "left without intimation".
11. No doubt, the accused has disputed the correctness of addresses to which the statutory notice was sent by registered post. However nothing has been elicited during cross- examination of PW.1 to show that the addresses to which statutory notice was sent are incorrect. Even accused has not entered witness box nor adduced any documentary evidence to show that the addresses shown in the statutory notice are incorrect. Hence, it can be concluded that statutory notice was sent by registered post to the correct addresses of the accused. There is presumption under Sec.27 of General Clauses Act that any notice sent by registered post at correct address is presumed to have been served on the addressee. The burden of rebutting said presumption is on the person who denies service of such notice. But in the present case on hand, the accused has not adduced any evidence to rebut said presumption. Therefore, it can be concluded that the statustory notice is duly served on the accused. Hence, the present complaint which is 6 filed after expiry of 15 days from the date of postal shara and within one month thereafter is in time.
12. As regard to legally enforceable debt or liability, in 2010 (11) SCC 441 - (Rangappa Vs Sri. Mohan), it is held that;
" The presumption mandated by Sec.139 of the Act includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebutable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, herein, there can be no doubt that there is an initial presumption which favours the complainant"..............."when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the presumption can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
13. If the facts and circumstances of this case are considered in light of above said principle of law, it is clear that the accused has not disputed during trial that the cheques in question are drawn on his bank account and that they bear signatures of the accused. Therefore, statutory presumption arises U/s.139 of N.I. Act in favour of the complainant that cheques in question are issued in discharge of debt or liability.
7The burden of rebutting the said presumption by probable defence is on the accused.
14. It is the case of the complainant that the complainant company supplied its products to the accused (who is its authorized wholesaler), as per Ex.P3 to P6 tax invoices and that towards said liability, the accused has issued the cheques in question which came to be dishonoured. On the contrary, it is the defence of the accused that the goods specified under Ex.P3 to P6 invoices have never been delivered to the accused and that though accused is not liable to pay any amount to the complainant, complainant has misused Ex.P7 and P8 cheques which had been given by the accused at the time of entering into Ex.P2- Distribution Agreement.
15. On careful perusal of evidence on record, it is clear that the defence of the accused is not probable nor does it inspire confidence of this court. It is because, even though accused has seriously disputed delivery of goods under Ex.P3 to P6 invoices, it is clear from back page of Ex.P3 to P6 invoices that there is seal and signature on behalf of the accused proprietary concern on the back side of said invoices. No doubt, accused has disputed that said seal and signature is that of accused proprietary concern. However accused has not entered witness box to deny on oath said seal and signature. Mere making suggestion to PW.1 during cross-examination by counsel for the accused that those seal and signatures are not of 8 accused is not sufficient because said suggestion is denied by PW.1.
16. Furthermore, though PW.1 has been cross-examined at length, nothing has been elicited which damages veracity of evidence of PW.1 regarding delivery of goods under Ex.P3 to P6 invoices. Even the defence of the accused that Ex.P7 and P8 cheques had been given by the accused by way of security at the time of entering into Ex.P2- Distribution Agreement is also not supported by any evidence on record. In other words, accused has not entered the witness box nor adduced any documentary evidence to show that those cheques have been given by way of security at the time of entering into Ex.P2- Distribution Agreement. On the contrary, it is clear from the contents of Ex.P2- Distribution Agreement that there is no averment in the said agreement that any cheques have been taken by way of security from the accused. Hence, it can be concluded that defence of the accused that complainant has misused Ex.P7 and P8 cheques which had been given by way of security at the time of entering into Ex.P2- Distribution Agreement cannot be accepted in absence of any evidence on record.
17. In view of my above discussion, I am of considered opinion that the accused has utterly failed to rebut statutory presumption in favour of the complainant. In fact the accused has not at all put forth any probable defence. Unless and until the accused rebuts the statutory presumption with convincing 9 and cogent evidence, burden cannot be shifted on the complainant. As discussed above, the complainant has placed sufficient materials on record to establish its contention as put by the complainant. The evidence on record is sufficient to accept the case of the complainant that accused has issued cheques in question towards discharge of legally enforceable debt or liability and the complainant has proved all the requirements of Sec.138 of N.I. Act, so as to constitute the offence against the accused. Therefore, Point Nos.1 & 2 are in affirmative and answered accordingly.
18. Point No.3: As discussed in connection with Point Nos.1 & 2, the complainant has proved its case as to commission of the offence punishable U/s.138 of N.I. Act by the accused. The punishment prescribed for the said offence is imprisonment for a period which may extend to two years or with fine. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, provisions of Sec.117 of N.I. Act, cost of litigation and the rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R.Vijayan Vs Baby) and this court is of the considered view that it is just and desirable to impose fine of Rs.15,50,000/- and out of the said amount a sum of Rs.10,000/- has to be remitted to the State and the remaining amount of Rs.15,40,000/- is to be given to the complainant as 10 compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 is answered in Affirmative.
19. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following......
ORDER Acting under Section 255(2) of Cr.PC accused is hereby convicted for the offence punishable under Section 138 of Negotiable Instruments Act. The accused shall pay a fine of Rs.15,50,000/- for the offence punishable U/s.138 of N.I. Act. In default of payment of fine amount, the accused shall under go simple imprisonment for a period of ten months.
By exercising the power conferred U/s.357(1) of Cr.PC., out of total fine amount of Rs.15,50,000/-, a sum of Rs.15,40,000/- is ordered to be paid to the complainant as compensation and Rs.10,000/- is ordered to be remitted to the State.
The bail bond of the accused stands cancelled. The cash security deposited by the accused is ordered to be continued till expiry of the appeal period.
Supply the free copy of this judgment to the accused forth with.
(Dictated to the stenographer, transcript thereof, computerized and print out taken by him is verified, corrected and then pronounced by me in open court on this the 13th Day of October, 2021) (K. GURUPRASAD) XIV A.C.M.M., Bengaluru 11 ANNEXURE Witnesses examined for the complainant:
CW.1 : Mr. Mohd Mohsin Beg
Witnesses examined for the defence:
NIL
Documents marked for the complainant:
Ex.P1 : Copy of Special Power of Attorney
Ex.P2 : Distributor Agreement
Ex.P3 to 6 : Tax Invoices along with delivery receipts
Ex.P7 & 8 : Two Cheques
Ex.P9 & 10 : Bank endorsements
Ex.P11 : Legal notice
Ex.P12 & 13 : Two postal receipts
Ex.P14 : Returned postal cover
Ex.P15 : Copy of Special power of attorney
Documents marked for the defence:
NIL
(K. GURUPRASAD)
XIV A.C.M.M., BENGALURU