Bangalore District Court
M/S.Trishul Concrete Products Ltd vs M/S.Safalaaakar Buildtech Llp on 10 January, 2019
IN THE COURT OF THE XXV ADDL. CHIEF
METROPOLITAN MAGISTRATE, AT BANGALORE
Dated this the 10th day of January, 2019
Present: Smt Shirin Javeed Ansari, BA LL.B(Hon's)LL.M
XXV Addl. Chief Metropolitan Magistrate,
Bangalore.
C.C.No.28657/2017
Complainant: M/s.Trishul Concrete Products ltd,
Regd.Office at 53, Dr.Ranga Road
Mylapore
Chennai 600 004.
Regional Marketing Office t
G-4 & G-5, Midford House
No.1, Midford Gardens
MGRoad, Bangalore 1.
Represented by its
Accountant and Power of Attorney
Holder
Mr.B.Shankar, Aged 39 years,
S/o.Mr.K.B.S.Mani.
(By Sri S.S.P - Advocate )
- Vs -
Accused: 1.M/s.Safalaaakar Buildtech LLP
No.36, Munirathnam complex,
Railway Parallel Road
Nehru Nagar, Kumarapark (West)
Bangalore 20.
Represented by its Chairman
Mr.Keerthi Mehta.
2.Mr.Keerthi Mehta.
Chairman,
M/s.Safalaaakar Buildtech LLP
No.36, Munirathnam complex,
2 C.C.No.28657/2017
Railway Parallel Road
Nehru Nagar, Kumarapark (West)
Bangalore 20.
3.Anand S
Partner,
M/s.Safalaaakar Buildtech LLP
No.36, Munirathnam complex,
Railway Parallel Road
Nehru Nagar, Kumarapark (West)
Bangalore 20.
(By Sri GSVSR - Advocate )
Offence complained of: U/s. 138 of Negotiable Instruments
Act.
Plea of accused: Pleaded not guilty.
Final Order: Accused are convicted.
Date of judgment : 10.01.2019
JUDGMENT UNDER SEC.355 OF CR.PC
The complainant filed this complaint under
Sec.200 Cr.P.C. against the accused for the offence
punishable under Sec.138 Negotiable Instruments Act
(For short N.I.Act).
2. The case of the prosecution is as under :
The complainant carries on business of
manufacturing and sale of ready mix concrete under
the name "COROMANDEL CONCRETE MIX" brand.
3 C.C.No.28657/2017
The complainant manufactures the ready mix
concrete at its factory situated at Sy.No.140,
Goolimangala Village, Sarjapur Hobli, Anekal Tq,
Hosur Road, Bangalore and Sy.No.17/5, Kumbalgodu
village, Kengeri hobli, Bangalore 74 for sale of its
customers
3. It is further submitted that, 1st accused is a
Limited Liability Partnership Firm (LLP) carrying on
the business as Builder , Promoter and Developer
and also as Contractor for construction of buildings
for their clients in Bangalore. 2nd accused is the
Chairman as well as the Partner and the 3rd accused is
the Partner of accused No1 and are jointly and
severally liable for the conduct of the day to day
business of the 1st accused.
4. It is further submitted that, the accused
purchased Coromandel Brand ready mix concrete for
their project site at Unishire Spacio at Arekere Village,
Bannerghatta Road, Bangalore and also at
Lakshmivilas Project , No.30/1, V.S.Raju Road,
Kumara Park , Seshadripuram, Bangalore in the name
4 C.C.No.28657/2017
of 1st accused on credit under running account
from time to time.
5. It is further submitted that, there is an
outstanding of Rs.20,33,300/- as on the 31.7.2017
pending for payment in the account of the accused
after adjusting all the credit.
6. It is further submitted that, after repeated
request and demand by the complainant and over
phone, the 2nd and 3rd accused approached the
complainant and confirmed the balance due of
Rs.37,64,050/- on 31.3.2017 and subsequently
made two payments of Rs.10,05,750/- on 11.5.2017
and Rs.7,25,000/- on 29.4.2017 respectively and the
complainant had issued a credit note for Rs.10,000/-
on 31.8.2017 . Hence, the accused was liable to pay
balance of Rs.20,33,300/- as on 31.7.2017. The
accused issued two cheques drawn on ICICI bank
ltd,Kumaraparak Branch, Bangalore bearing
No.001015 DT.25.7.2017 for Rs.10,17,150/- and
another cheque bearing No.001016 dt.25.8.2017 for
Rs.10,16,150/- totally for a sum of Rs.20,33,300/- in
5 C.C.No.28657/2017
favour of the complainant towards the discharge of
the liability.
7. It is further submitted that, the cheques
signed and issued by the 2nd accused in discharge of
their liability was deposited by the complainant with
their bankers i.e M/s.Bank of Baroda, Singena
Agrahara Branch, Bangalore after giving due
intimation to the accused in writing for
clearance/realization. But, the said cheques were
dishonored for the reason "payment stopped by the
drawer". vide memo dt.1.9.2017 and returned to the
complainant 's banker vide debit advice dt.2.9.2017 .
After receipt of the intimation from their banker, the
complainant issued legal notice, dt.5.9.2017 to the
accused by RPAD demanding the accused to pay the
value of the cheques with interest at 21% p.a from the
date of receipt of the notice . The notice sent by the
complainant through RPAD is served on the accused
on 8.9.2017 and the complainant received the postal
acknowledgement signed by the accused on
11.9.2017. The accused sent reply, but, did not pay
any amount.
6 C.C.No.28657/2017
8. It is further submitted that, inspite of receipt
of said notice, the accused have not paid the cheque
amount. Hence, committed an offence punishable
u/s.138 Negotiable Instrument Act . Hence, this
complaint.
9. The accused appeared before the court
through their counsel and are enlarged on bail .
10. Further the copies of the papers were
furnished to the accused as contemplated u/s.207
Cr.P.C. The sum and substances of the accusation for
the offence punishable u/s.138 Negotiable Instrument
Act was read over and explained to the accused . The
accused pleaded not guilty and claimed to be tried.
11. After recording the plea, PW 1 is examined
and got marked the documents at Ex.P.1 to Ex.P.17 .
12. IN view of the continuous absence of the
accused person before this court, the recording of the
statement of the accused u/s.313 Cr.P.C is hereby
dispensed with. The accused have not lead defence
evidence also.
7 C.C.No.28657/2017
13. Heard the counsel for the complainant.
Counsel for the accused did not submit their
arguments.
14. Upon hearing arguments, the following
points arise for my consideration:
1. Whether the complainant
proves that the accused has
committed an offence
punishable u/s. 138 Negotiable
Instrument Act ?
2. What order.
15. My answers to the above points are as
under:
Point No.1 : In the Affirmative.
Point No2 : As per final order for the
Following,
REASONS
16.Point NO.1 : The complainant carries on
business of manufacturing and sale of ready mix
concrete under the name "COROMANDEL CONCRETE
MIX" brand. The complainant manufactures the
ready mix concrete at its factory situated at Sy.No.140,
Goolimangala Village, Sarjapur Hobli, Anekal Tq,
8 C.C.No.28657/2017
Hosur Road, Bangalore and Sy.No.17/5, Kumbalgodu
village, Kengeri hobli, Bangalore 74 for sale of its
customers
17. It is further submitted that, 1st accused is
a Limited Liability Partnership Firm (LLP) carrying on
the business as Builder , Promoter and Developer
and also as Contractor for construction of buildings
for their clients in Bangalore. 2nd accused is the
Chairman as well as the Partner and the 3rd accused is
the Partner of accused No1 and are jointly and
severally liable for the conduct of the day to day
business of the 1st accused.
18. It is further submitted that, the accused
purchased Coromandel Brand ready mix concrete for
their project site at Unishire Spacio at Arekere Village,
Bannerghatta Road, Bangalore and also at
Lakshmivilas Project , No.30/1, V.S.Raju Road,
Kumara Park , Seshadripuram, Bangalore in the name
of 1st accused on credit under running account
from time to time.
19. It is further submitted that, there is an
outstanding of Rs.20,33,300/- as on the 31.7.2017
9 C.C.No.28657/2017
pending for payment in the account of the accused
after adjusting all the credit.
20. It is further submitted that, after repeated
request and demand by the complainant and over
phone, the 2nd and 3rd accused approached the
complainant and confirmed the balance due of
Rs.37,64,050/- on 31.3.2017 and subsequently
made two payments of Rs.10,05,750/- on 11.5.2017
and Rs.7,25,000/- on 29.4.2017 respectively and the
complainant had issued a credit note for Rs.10,000/-
on 31.8.2017 . Hence, the accused was liable to pay
balance of Rs.20,33,300/- as on 31.7.2017. The
accused issued two cheques drawn on ICICI bank
ltd,Kumaraparak Branch, Bangalore bearing
No.001015 DT.25.7.2017 for Rs.10,17,150/- and
another cheque bearing No.001016 dt.25.8.2017 for
Rs.10,16,150/- totally for a sum of Rs.20,33,300/- in
favour of the complainant towards the discharge of
the liability.
21. It is further submitted that, the cheques
signed and issued by the 2nd accused in discharge of
their liability was deposited by the complainant with
10 C.C.No.28657/2017
their bankers i.e M/s.Bank of Baroda, Singena
Agrahara Branch, Bangalore after giving due
intimation to the accused in writing for
clearance/realization. But, the said cheques were
dishonored for the reason "payment stopped by the
drawer". vide memo dt.1.9.2017 and returned to the
complainant 's banker vide debit advice dt.2.9.2017 .
After receipt of the intimation from their banker, the
complainant issued legal notice, dt.5.9.2017 to the
accused by RPAD demanding the accused to pay the
value of the cheques with interest at 21% p.a from the
date of receipt of the notice . The notice sent by the
complainant through RPAD is served on the accused
on 8.9.2017 and the complainant received the postal
acknowledgement signed by the accused on
11.9.2017. The accused sent reply, but, did not pay
any amount.
22. It is further submitted that, inspite of
receipt of said notice, the accused have not paid the
cheque amount. Hence, committed an offence
punishable u/s.138 Negotiable Instrument Act .
11 C.C.No.28657/2017
23. In support of the case, the complainant has
produced the documents marked at Ex.P.1 to Ex.P.17
Ex.P.1 is the complainant . Ex.P.1(a) is the signature
of the complainant . Ex.P.2 is the Board Meeting
Extract. Ex.P.3 is the Certified copy of the Power of
Attorney .Ex.P.4 is the cheque . Ex.P.4(a) is the
signature of the accused. Ex.P.5 is the cheque return
memo . Ex.P.6 is the cheque. Ex.P.6(a) is the
signature. Ex.P.7 cheque return memo Ex.P.8 is the
office copy of the legal notice, Ex.P.9 -P11 are the
postal receipts. Ex.P.12 to P.14 are the
acknowledgements. Ex.P.15 is the letter issued by
the complainant company, Ex.P.16 is the Reply
notice. Ex.P.17 is the Certified copy of the ledger
account extract.
24. Inspite of sufficient opportunities and
hearing dates, the accused did not appear before the
court and did not even cross examine Pw 1 . As such
the oral and documentary evidence put forth by the
complainant remained unchallenged.
25. On careful perusal of the material on record
specially the cheques in question and the demand
12 C.C.No.28657/2017
notice, they clearly go to reveal that the accused have
issued the cheques in question as per Ex.P.4 and
Ex.P.6 in favour of the complainant in discharge of
their liability . Despite of service of notice, the
accused though appeared before this court but have
not cross examined PW1 in order to rebut the
burden casted upon them. Absolutely , there is
nothing on the part of the accused person in order to
disprove the case of the complainant. The accused has
not challenged the present documents issued by
them.
26. The contents of the complaint and the
examination-in-chief affidavit clearly establish the
ingredients of Sec.138 Negotiable Instrument Act. The
complainant in order to prove his case relied on the
oral evidence. Beside, the evidence is supported by
the documents produced by him. There is no
ambiguity in the oral and documentary evidence
brought on record. On careful examination of all the
documents of the complainant, it is clear that the
complaint is filed well within time. The bank
endorsement bearing the shara " payment stopped by
13 C.C.No.28657/2017
the drawer" attracts Sec.138 Negotiable Instrument
Act.
27. The next point for consideration is whether
the presumption could be drawn in favour of the
complainant. Section 139 of the Act provides that
unless contrary is proved, it shall be presumed that
the holder of the cheque received the same for
discharge of any debt or liability. The word "shall"
indicate that it is mandatory on the part of the
court to draw the presumption in favour of the holder
of the cheque in due course unless rebutted. At the
cost of repetition it is worth to note that the accused
has not taken any steps to rebut the said
presumption.
28. That apart, Sec.118 of Negotiable Instrument
Act lays down special rules of evidence applicable to
Negotiable Instruments. The presumption is one of
Law and there under a court shall presume that the
instrument was endorsed for consideration.
29. According to the complainant the
complainant carries on business of manufacturing
and sale of ready mix concrete under the name
14 C.C.No.28657/2017
"COROMANDEL CONCRETE MIX" brand. and 1st
accused is a Limited Liability Partnership Firm (LLP)
carrying on the business as Builder , Promoter and
Developer and also as Contractor for construction of
buildings for their clients in Bangalore. 2nd accused
is the Chairman as well as the partner and the 3rd
accused is the Partner of accused No1 and are jointly
and severally liable for the conduct of the day to day
business of the 1st accused.
30. It is further case of the complainant that ,
the accused purchased Coromandel Brand ready mix
concrete for their project site at Unishire Spacio at
Arekere Village, Bannerghatta Road, Bangalore and
also at Lakshmivilas Project , No.30/1, V.S.Raju Road,
Kumara Park , Seshadripuram, Bangalore in the name
of 1st accused on credit under running account
from time to time.
31. It is further case of the complainant that,
towards outstanding balance of Rs.20,33,000/- as
on the 31.7.2017 the accused issued two cheques
drawn on ICICI bank ltd, Kumaraparak Branch,
Bangalore bearing No.001015 DT.25.7.2017 for
15 C.C.No.28657/2017
Rs.10,17,150/- and another cheque bearing
No.001016 dt.25.8.2017 for Rs.10,16,150/- totally
for a sum of Rs.20,33,300/- in favour of the
complainant towards the discharge of the liability.
32. The complainant has also produced the
cheques marked at Ex.P.4 and Ex.P6 . The
complainant has further produced the bank
endorsements marked at Ex.P.5 and Ex.P.7 which
clearly go to reveal that the cheques were dishonored
for the reason " payment stopped by the drawer". The
complainant has also produced the copy of legal notice
marked at Ex.P.8 and the postal receipts marked at
Ex.P9 to Ex.P.11 and the postal acknowledgements at
Ex.P.12 to Ex.P.14.. As the evidence of the
complainant remained unchallenged, the documents
produced by the complainant also remained
unchallenged.
33. In this case plea of the accused is recorded
as per Sec..251 Cr.P.C, wherein the accused pleaded
not guilty. As per Sec.251 of Cr.P.C. the accused have
to state about their defence. Here, except pleading
not guilty, and stating that they have defence
16 C.C.No.28657/2017
evidence to be lead, but, neither the accused nor the
counsel have come forward to lead any defence
evidence. As per the decision reported in AIR 2014
SC 2528 Indian Bank Association v/s. Union of
India) Crl.P.NO.8943/2010 M/s.Transgare Pvt.Ltd,
v/s.Dr.R.Parvathreddy and in Rajesh Agarwals
Case, wherein it is held that the accused cannot
simply say "I am innocent or I plead not guilty".
The presumption of law laid down in the afore said
decision is squarely applicable to the facts and
circumstances of this case. As such it cannot be taken
that the accused has rebutted the presumption of law
by mere pleading not guilty.
34. In this context , it is necessary to refer the
decision of the larger bench of the Hon'ble Apex Court
held in Rangappa v/s. Mohan reported in
AIR 2010 SC 1889 that :
"In the light of these extract, we are
in agreement, with the respondent -
claimant that presumption mandated
by Sec.139 of the Act does not indeed
include the existence of legally
enforceable debt or liability " .
17 C.C.No.28657/2017
35. From the discussion made supra it is clear
that the accused have neither taken probable defence
nor taken steps to prove the same. The contention of
the repayment of the amount covered under the
cheques is also not proved through cogent and
acceptable evidence. To put it other way, the accused
have not rebutted the presumption of Law available in
favour of the complainant as envisaged under sec.139
and 118 of Negotiable Instrument Act. Accordingly,
the case of the complainant is believable one. Despite
of giving sufficient opportunity, the accused have not
bothered to lead defence evidence. The accused have
not rebutted the case of the complainant. Hence, this
Point No.1 is answered in the Affirmative.
36. Point No.2: In view of the reasons stated
and discussed above, the complainant has proved the
guilt of the accused for the offence punishable under
Sec.138 Negotiable Instruments Act .
Hence, I proceed to pass the following :
18 C.C.No.28657/2017
ORDER
Acting u/s.255(2) Cr.P.C accused are convicted for the offence punishable under Sec.138 Negotiable Instruments Act and sentenced to pay fine of Rs.20,83,300/- (Rs Twenty Lakhs Eighty Three Thousand Three Hundred only ) In default, shall under go SI for a period of 1 year.
Acting under Section 357 (1) (b) of Cr.P.C, out of the fine amount the complainant is entitled for Rs.20,78,300/- (Rs.Twenty Lakhs Seventy Eight Thousand Three Hundred only ) Acting under Section 357 (1) (a) of Cr.P.C, the remaining fine amount of Rs.5,000/- (Rupees Five Thousand Only) is confiscated to the State .
Furnish free copy of judgment and order to convicted-accused.
(Dictated to the Stenographer directly on the computer, typed by her , corrected and signed then pronounced by me in the open court on this the 10th day of January , 2019)).
(SHIRIN JAVEED ANSARI ) XXV A.C.M.M., BANGALORE.
19 C.C.No.28657/2017ANNEXURE
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : B.Shankar.
LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P1 : Complaint.
Ex.P.1(a) : Signature of the
Complainant .
Ex.P2 : Board Meeting Extract.
Ex.P3 : CC of PA
Ex.P4 : Cheque.
Ex.P.49a) : Signature of the accused
Ex.P5 : Cheque return memo.
Ex.P6 : Cheque.
Ex.P6(a) : Signature of the accused
Ex.P7 : Cheque return memo.
Ex.P8 : Copy of legal notice
Ex.P9-11 : Postal receipts
Ex.P12-14 : Postal acknowledgement.
Ex.P15 : Letter
Ex.P16 : Reply notice.
Ex.P17 : CC of Statement of
account .
2) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:- -
-Nil-
3) LIST OF DOCUMENTS MARKED FOR THE ACCUSED:
-Nil-
( SHIRIN JAVEED ANSARI ) XXV A.C.M.M.,BANGALORE.20 C.C.No.28657/2017