Bangalore District Court
No.47 vs Also At : Mr. Vasudev Ingle on 13 October, 2020
1
IN THE COURT OF XIV ADDL. CHIEF METROPOLITAN
MAGISTRATE, MAYO HALL, BENGALURU
DATED THIS THE 13th DAY OF OCTOBER, 2020
PRESENT
Sri. K. GURUPRASAD, B.A., LL.B (Spl.)
XIV ADDL. C.M.M., BENGALURU
CASE NO C.C. NO.56498/2018
M/S. KURLON LIMITED
No.302, 3rd Floor North Block, Manipal Center,
COMPLAINANT No.47, Dickenson Road, Bengaluru - 560 042.
Reptd by Authorized Signatory & Secretarial Officer
- Mr. S. Krishna Prasad
Mr. Vasudev Ingle - Proprietor
M/S. DILIP LEATHER STORES,
New Shukrawari Road, Near Kashibai Temple,
Nagpur - 440 002.
ACCUSED
Also at : Mr. Vasudev Ingle
Unth Khana Road, Near Raymond Showroom,
Nagpur.
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 Section 138 of Negotiable Instruments Act.
2. Originally the present complaint was filed before this court on 14.3.2014. Thereafter, in view of judgment of Hon'ble Supreme Court in Dashrath Rupsing Rathod Vs. State of Maharashtra and another (2014 (3) KCCR 2313 (SC), this court by its order dtd.12.12.2014 returned the complaint to present the same before proper court within 30 days from the date of return. Accordingly, the complaint was presented before Additional Chief Judicial Magistrate, Nagpur on 31.1.2015 who alloted this complaint to Judicial Magistrate First Class, Court No.30, which is Special Court for cases U/s.138 of N.I. Act , Nagpur for enquiry or trial in accordance with law. Thereafter the said Special Court took cognizance and recorded the sworn statement and issued process. Thereafter, when the accused appeared before said Special Court, further examination-in-chief and cross- examination of PW.1 was recorded. Thereafter, in view of Negotiable Instruments (Amendment) Act 2016, this complaint came to be transferred to this court.
3. It is the case of the complainant that, it has branches All over India and engaged in the business of Manufacture and supply of Mattresses, Foam products, 3 Furniture and other products. The accused who is one of the customers of the complainant company purchased products on credit basis. As on 25.12.2013, there was an outstanding amount Rs.67,79,247/- from the accused to the complainant. Towards said liability, the accused had issued cheque bearing No.125682 dtd.26.12.2013 for Rs.67,79,247/- drawn on State Bank of India, Mahal branch, Nagpur in favour of the complainant. When the complainant presented the said cheque for encashment to its banker i.e State Bank of India, IFB Branch, Bengaluru, said cheque came to be dishonoured on 25.1.2014 for the reason "funds insufficient". When the complainant got issued legal notice to the accused on 4.2.2014 to the accused by registered post calling upon the accused to pay the cheque amount, said notice was duly served on the accused on 10.2.2014. However the accused who has failed to pay the cheque amount in spite of receipt of said notice, got issued untenable reply notice on 24.2.2012. Hence, the accused is guilty of the offence punishable under Section 138 of N.I. Act. Hence this complaint.
4. After receiving court records from Special Court, Nagpur, this court registered the case as criminal case and issued summons to the accused. In pursuance summons issued by this court, the accused appeared through his counsel and got enlarged on bail. The Hon'ble Special Court, Nagpur has already recorded evidence of PW.1 and got 4 marked Exh.1 to Exh.60 before transfer of this complaint to this court. Thereafter representative of the complainant company was substituted by the order of this court dtd.24.7.2019 on the application of complainant. The said new representative of the complainant company was examined as PW.2 and got marked Ex.P61 to P63 and closed complainant side of evidence. Thereafter, statement of the accused U/s.313 of Cr.PC was recorded. The accused denied incriminating materials in the evidence of PWs.1 and 2 and submitted that he has defence evidence. Thereafter the accused examined himself as DW.1 and got marked Ex.D1 and D2 and closed his side of defence evidence.
5. Heard both sides. Both parties have filed written arguments. Perused the complaint, evidence on record, written arguments and court records.
6. The following points arise for my consideration and determination;
1) Whether the complainant proves that the accused has issued cheque 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?
5
3) Whether the complainant is entitled
for the relief's as prayed in the
complaint?
4) What Order?
7. 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
8. Point Nos. 1 and 2: Since these two points are inter linked and to avoid repetition they are taken together for discussion.
9. As regard to limitation to file this complaint, it is clear from Exh.36 to 44 that when the complainant presented the cheque in question to its banker within three months from the date of said cheque, said cheque came to be dishonored and that when the complainant got issued statutory notice U/s. 138 of N.I. Act (within 30 days from the date of intimation of dishonour of said cheque) calling upon the accused to pay the cheque amount within 15 days from the date of receipt of said notice, said notice came to be served on the accused and got replied by him. Therefore the present complaint which is filed after expiry of 15 days 6 from the date of service of said notice and within 30 days thereafter is well within time.
10. 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".
11. 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 that cheque in question is drawn on his bank account and that it bears his signature. Therefore, statutory presumption arises U/s.139 of N.I. Act 7 in favour of the complainant that the cheque in question is issued in discharge of debt or liability. The burden of rebutting the said presumption by probable defence is on the accused.
12. It is the case of the complainant that the complainant has supplied goods to the accused under 177 invoices as per Exh.32 on 30.3.2013 and 31.3.2013 and that there is outstanding balance of Rs.67,79,247/- from the accused to the complainant and towards said liability, the accused issued cheque at Exh.36, which came to be dishonored. On the other hand, it is defence of the accused that he has not issued the cheque in question towards repayment of any outstanding balance to the complainant. It is specific defence of the accused that he had given one blank signed cheque (Exh.36) by way of security in 2006 at the time of entering into Exh.57-dealership agreement with the complainant. It is further defence of the accused that there is no outstanding balance of Rs.67,79,247/- from the accused to the complainant and that the complainant has not supplied the goods as stated in Exh.32 invoice. It is further defence of the accused that the accused has cleared all outstanding amount in January 2011 and the complainant had issued no due certificate. It is further defence of the accused that the complainant company supplied less goods than the goods shown in invoices and as such there is short supply of the goods. It is further defence of the accused 8 that PW.1 has lodged police complaint as per Ex.D1 against employees of complainant company who had committed misappropriation by issuing hand bills to the customers and by selling goods to different people. It is further defence of the accused that the complainant has collected more money from the accused for the past transaction than what was actually due from the accused on account of short supply of goods under past invoices and as such the complainant company itself is liable to pay more than Rs.85 lakhs to the accused. It is further defence of the accused that there was arbitration proceedings initiated by complainant company against accused before the Hon'ble Justice Gilani (retired), regarding transaction between complainant, accused and the Hon'ble Arbitrator in his award as per Ex.D2 disallowed the claim of complainant against the accused. It is further defence of the accused that the complainant has misused the blank signed cheque which had been given by him by way of security in 2006 and filed this false complaint, though the accused is not liable to pay the cheque amount.
13. On careful perusal of evidence on record, it is clear that defence of the accused is not probable nor does it inspire confidence of this court. It is because, it is specific case of the complainant that he has supplied goods to the accused under 177 invoices dtd.30.3.2013 and 31.3.2013. Even though the accused has dispured supply of goods in March 2013, it is clear from Exh.44 reply notice 9 dtd.24.2.2014 got issued by the accused to the complainant that the accused has admitted in the said reply notice that last transaction took place in March 2013. It is also further clear from Exh.44 reply notice that there is no allegation in the said reply notice that there was short supply of goods in March 2013. Therefore it is clear that the accused has admitted in his reply notice regarding supply of goods under invoices in March 2013. Further the complainant has produced copies of said 177 invoices as per Exh.32 in support of his claim. The complainant has also produced Exh.45 certificate of correctness in respect of tax invoices, in compliance with Sec.65-B of Evidence Act. No doubt, Exh.32 invoices do not bear seal and signature of recipient. However, it is clear from evidence of PW.1 and PW.2 that Exh.32 invoices are the print out copies taken from computer system of complainant company and as such there cannot be any seal and signature of accused on those invoices. It is further clear from oral evidence of PW.1 and documentary evidence of Ex.P62 that due to heavy rainfall in June and July 2013, water entered into warehouse of complainant situated at Wadi, Nagpur and the goods and documents in the warehouse were destroyed and as such the original invoices with seal and signature of accused cannot be produced. It is further clear that complainant has putforth insurance claim in this regard before New India Assurance Company as per Ex.P62. Nothing has been 10 elicited to disbelieve this case of complainant regarding loss of original invoices. It is further clear from oral evidence of PW.2 and documentary evidence of Ex.P61 tax invoice copies that xerox copies of acknowledged invoices which were kept in Head Office of the complainant company at Bengaluru have been produced in this case as per Ex.P61. It is clear from Ex.P61 that there is seal and signature for having received goods under 177 invoices on behalf of the accused. No doubt Ex.P61 are the xerox copies and not original invoices. However, since the complainant company has laid foundation for the secondary evidence to produce Ex.P61 invoice copies on the ground that original invoices have been destroyed in floods in June and July 2013 in warehouse of Wadi, Nagpur, objections of accused to admit Ex.P61 invoice copies has to be overruled. In view of sufficient ground for taking secondary evidence, there is no reason to discard Ex.P61 invoice copies by way of secondary evidence. It is also pertinent to note that from discussion made by the Hon'ble Arbitrator in para 27 and on page 31 of his award, it is clear that the accused has admitted receipt of goods mentioned in 119 invoices which were raised on 30th and 31st March 2013. This admission of accused in Arbitration proceedings also support the case of the complainant.
14. Moreover the complainant has produced Exh.47 which are copies of working sheet, VAT Payment Challan, 11 VAT Return Form as well as acknowledgement of return for the financial year 2012 - 2013. Exh.49 is certificate of correctness of Exh.47, in compliance with Sec.65-B of Evidence Act. It is clear from Exh.47 that the complainant has paid VAT applicable to sales effected by complainant to all its customers and dealers including the accused in March 2013. If the complainant company had not supplied goods under 177 invoices in March 2013, the complainant company would not have incurred unnecessary tax liability by showing the sales effected by it to the accused in Exh.47 documents. It is pertinent to note that U/s.2 (33) of M.V.A.T Act, turn over of the sales includes not only the amounts received, but also the amounts receivable by the dealer. In other words, even if the accused has not paid amount due under Exh.32 invoices, the complainant is still required to pay VAT on the value of invoices raised by it. Therefore, the fact that sales effected to the accused in March 2013 are shown in Exh.47 supports and corroborates the claim of the complainant that supply of goods under Exh.32 is genuine transaction. On the other hand, accused has not produced copies of VAT returns filed by accused for the transactions of March 2013. DW.1 has admitted during cross-examination that whenever complainant supplied goods to the accused, it used to collect VAT from the accused and thereafter the accused availed input tax credit on the goods supplied to accused. DW.1 has further admitted that he used to file VAT 12 returns to the Competent Authority to every year and he has no difficulty to produce copies of VAT returns filed by him. If the accused had received goods on 30.3.2013 and 31.3.2013 under 177 invoices, then the same would have definitely been reflected in VAT returns filed by the accused to the Competent Authority for the relevant period. The non-production of copies of VAT returns filed by the accused raises serious doubt regarding the defence of the accused that he has not received any goods under 177 invoices in March 2013. In view of my above discussion, I am of considered view that the complainant has proved that it has supplied goods to the accused under 177 invoices on 30.3.2013 and 31.3.2013.
15. Even though the accused has contended that the complainant used to supply less goods than what is shown in the invoices and as such he has paid extra amount to the complainant company in spite of such short supply, the said defence also is not reliable. It is because, there is material contradictions regarding the period during which alleged short supply of goods took place. The accused has alleged in Exh.44 reply notice that there is short supply only in the months of June and July 2012 and February 2013. It is pertinent to note that there is no allegation of short supply of goods in March 2013. However, the accused has alleged in Exh.52 legal notice dtd.5.4.2016 that there was short supply of goods for the period from April 2012 to March 13 2013. It is further clear from Exh.52 that the accused has gone to the extent of denying supply of goods by the complainant in March 2013, though the accused has admitted supply of goods on March 2013 in his previous reply notice at Exh.44. Further the accused has deposed on page 4 of cross-examination that every month he used to get short supply in goods supplied by the complainant. In view of above said contradictions regarding period during which there was short supply of goods, it is not safe to rely upon the defence evidence regarding short supply of goods. Furthermore, even though DW.1 has admitted during cross- examination that he would verify the quantity of goods received from the complainant against the quantity shown in the invoices, the accused has raised defence of short supply of goods received in March 2013, only in the year 2016 as per Exh.52 notice. Moreover, even though DW.1 has deposed that he has no difficulty to produce VAT returns filed for the relevant period of March 2013, the accused has not produced the said VAT returns copies to show what quantity of goods has been actually received by the accused from the complainant company. If the complainant company had supplied less goods than what is shown in the invoices, the said short supply would have definitely been reflected in VAT returns of the accused for the relevant period. In view of Sec.48 of M.V.A.T Act and Rule 52 of M.V.A.T., Rules, if the accused had produced VAT returns, it would have became 14 clear whether or not, the accused has claimed input tax credit on the value of invoices raised by the complainant or only on the actual value of goods short supplied by him. Even though DW.1 has admitted that he has no difficulty to produce VAT returns, the accused has not produced said best evidence with him. Therefore, an adverse inference can be drawn against the accused that if said VAT returns were produced in this case, the same would go against him. It is also pertinent to note that the complainant has produced Exh.55 account rectification statement which shows that the complainant has deducted the amount towards the goods which the accused claims to have received less than what is shown in invoices. Even after reconciliation of account statement by the complainant company, the accused has continued to put up claim of short supply without any sufficient cause. In other words, the complainant company has already worked out the outstanding amount after reconciliation of the account statement after considering the deficit supply. In view of these facts and circumstances of the case, it can be concluded that the accused has failed to prove short supply of goods as alleged by him.
16. The accused has heavily relied upon Exh.60-F.I.R and Ex.D1-English translation thereof. It is clear from said F.I.R registered in Wadi Police Station of Nagpur under F.I.R No.257/2014 that PW.1 has lodged police complaint against some of the employees of the complainant company 15 alleging misappropriation of goods at Nagpur branch by not delivering large scale of goods to regular customers of complainant company and by selling the goods on their own by issuing hand bills to the customers. The accused has contended that since said employees of the complainant company in Nagpur branch have misappropriated the goods of the complainant company, the accused has also received short supply of goods from the complainant company. However the accused has not produced any documentary evidence nor explained as to what was result of investigation on the basis of said F.I.R and whether there was any conviction by the court on the basis of said F.I.R. Furthermore, DW.1 has not at all whispered in his evidence that the goods misappropriated by said employees of complainant company in Nagpur branch also include the goods in respect of which the complainant has raised invoices to the accused. Unless and until the accused proves that the filing of said F.I.R has direct connection with alleged short supply of goods to the accused, the accused cannot take vague defence on the basis of said F.I.R. Therefore, Exh.60 and Ex.D1 are by themselves not helpful to prove the defence of the accused.
17. The accused has also heavily relied upon Ex.D2- award passed by the Hon'ble Arbitrator Justice M.N. Gilani, (retired), Nagpur regarding Arbitration proceedings between the complainant and accused. It is clear from Ex.D2 that the 16 complainant has claimed Rs.1,79,86,265/- in respect of non- payment of outstanding amount including value of 177 invoice bills. It is further clear from Ex.D2 that the Hon'ble Arbitrator has partly allowed the claim of the present complainant only to the extent of Rs.3,27,000/- after giving finding that the complainant has failed to prove the outstanding amount of Rs.1,79,86,265/- from the accused. The accused has relied upon this award to show that the Hon'ble Arbitrator has already decided the subject matter of this complaint in the Arbitration proceedings and as such the complainant cannot claim the cheque amount in this proceedings U/s. 138 of N.I. Act. In other words, the accused contends that the findings given by the Hon'ble Arbitrator in the said award is binding on this criminal court to decide legally enforceable debt or liability of the accused to the extent of cheque amount.
18. However in 2010 (8) SCC 775 - (Kishan Singh Vs Gurpal Singh and others), it is held that the findings of fact recorded by the Civil Court do not have any bearing so far as the criminal case is concerned and vice-versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the 17 same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Indian Evidence Act, 1872, dealing with the relevance of previous Judgments in subsequent cases may be taken into consideration.
19. In 2014 (6) SCC 677 - (Swiss Timing Ltd. Vs Commonwealth Games 2010 Organising Committee, it is held that findings of Arbitral Tribunal in its award are not binding in criminal proceedings arising out of same contract.
20. The principles of law laid down by the Hon'ble Supreme Court in the above said decisions are partly applicable to the present case on hand. No doubt, the Hon'ble Arbitrator in his award as per Ex.D2 disallowed the claim of complainant for Rs.1,79,86,265/- from the accused including the transaction under 177 invoices which is subject matter of complaint in this case. In Ex.D2 the Hon'ble Arbitrator has directed the accused to pay a sum of Rs.3,27,000/- only. However the finding of Hon'ble Arbitrator in the said award is not binding in criminal trial in this in the present criminal case. It is not the case of the accused that the present case falls under the Provisions of Sections 41 to 43 of Evidence Act in any way. Therefore mere finding of fact recorded by the Hon'ble Arbitrator in the Arbitration proceedings is not binding of this court which is criminal court dealing with offence U/s.138 of N.I. Act. Moreover the 18 burden of proof in the Arbitration proceedings was on the present complainant who was petitioner in the said case. On the contrary in the present case, which is filed offence U/s. 138 of N.I. Act, the complainant can rely upon the presumption U/s. 139 of N.I. Act and initial burden of disproving the existence of legally enforceable debt or liability is on the accused and not on the complainant. Therefore, the findings given by the Hon'ble Arbitrator in Ex.D2-award is not binding on this criminal court in this criminal trial and as such the said award is not helpful to the accused in proof of the defence.
21. In view of my above discussion, I am of considered view that the complainant has proved that it has supplied goods to the accused under 177 invoices on 30.3.2013 and 31.3.2013. On the other hand, the accused has utterly failed to prove that there was short supply of goods by the complainant to the accused. The complainant has also proved that there is outstanding amount of Rs.67,79,247/- from the accused to the complainant. Therefore, I am of view that there is legally enforceable debt or liability from the accused to the complainant to the extent of cheque amount.
22. No doubt, PW.1 has admitted during cross- examination that Exh.36-cheque was given by the accused to the complainant company as security cheque in the year 2006 and that there was no consent from the accused for 19 presenting said security cheque. The accused has contended that since the cheque in question (Exh.36) was given by the accused in blank by way of security in 2006 itself and not towards repayment of outstanding amount in 2013, the complainant could not have presented the said cheque without consent of the accused, because dispute pertaining to outstanding amount was not quantified. It is further contended that the complainant company had no right to fill-up the amount in cheque in question without adjudication or quantifying, particularly when there was no outstanding amount to the extent of cheque amount.
23. However in (2016) 10 SCC 458 - (Sampelly Satyanarayana Rao Vs Indian Renewable Energy Development Agency Ltd.,), it is held that post dated cheque is well- recognized mode of payment and Sec.138 of N.I. Act is attracted, if on date of issuance of cheque, there existed liability or debt or amount which had become legally recoverable. Issuance of cheque and admission of signature thereon would invoke presumption of legally enforceable debt in favour of holder. The accused needs to rebut such presumption. Crucial point is whether cheque represents discharge of existing enforceable debt or liability or whether it represents advance amount without there being existing liability.
24. In (2019) 4 SCC 197 - (Bir Singh Vs Mukesh Kumar), it is held that a meaningful reading of the 20 provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. The fact that the cheque might be post-dated does not absolve the drawer of a cheque of the penal consequences of U/s. 138 of N.I. Act. Further, it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption U/s.139, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence.
25. The principles of law laid down in the above said decisions are squarely applicable to the present case on hand. No doubt, it is clear from the evidence on record that Exh.36-cheque in question was handed over by the accused to the complainant by way of blank signed cheque in 2006 itself at the time of entering into Dealership Agreement. It 21 is also clear from the evidence on record that the said cheque was presented by the complainant in bank without prior intimation to accused or without consent of the accused. However the complainant company has sufficiently proved that there was an outstanding balance of Rs.67,79,247/- in the year 2013. Therefore, even if blank signed cheque was given by way of security in 2006 itself, the complainant is authorized U/s.20 of N.I. Act to fill-up the amount in the said cheque to the extent of outstanding amount and to present the said cheque even without consent of the accused. It is immaterial whether the said cheque has been filled up by accused himself or by some person other than the accused. It is not the case of the accused that said cheque was taken from him by the complainant company under any threat or coercion. It is also not the case of the accused that blank signed cheque had been stolen. Therefore even if blank signed cheque was given by the accused by way of security to the complainant company in 2006 itself, the complainant company is authorized under law to fill-up said blank signed cheque and present the same to the banker even without prior intimation or consent of the accused in 2013, because there is outstanding balance to the extent of cheque amount from the accused in the year 2013. When the accused has voluntarily handed over blank signed cheque by way of security, the presumption arises U/s. 139 of N.I. Act in 22 favour of the complainant regarding existence of legally enforceable debt or liability and the accused has utterly failed to rebut said presumption by probable defence. Therefore the contention of accused in this regard does not hold any water.
26. Counsel for the accused has relied upon decisions in 2006 CRI.L.J. 3140, 2008 ALL MR (Cri) 3462, 2010 ALL MR (Cri) 1098 and 2010 ALL MR (Cri) 1105. No doubt there is no dispute regarding the principles of law laid down in the above decisions. However since the accused has failed to prove his defence and in view of above said Supreme Court decisions, the decisions relied upon by the accused are not helpful to the accused.
27. In view of my above discussion, I am of considered opinion that the accused has utterly failed to prove or probabalize his defence and thereby to rebut statutory presumption in favour of the complainant. It clearly appears from the evidence on record that defence of the accused is only an afterthought without any basis. Unless and until the accused rebuts the statutory presumption with convincing 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 it. The evidence on record is sufficient to accept the case of the complainant that accused had issued cheque in question towards discharge of 23 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.
28. 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), etc., this court is of the considered view that it is just and desirable to impose fine of Rs.90,00,000/- 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.89,90,000/- is to be given to the complainant as compensation as provided U/s.357(1) of Cr.PC and accordingly Point No.3 is answered in Affirmative.
29. Point No.4: For the reasons discussed in connection with Point Nos.1 to 3 this court proceed to pass the following......
24ORDER 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.90,00,000/- 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 18 months.
By exercising the power conferred U/s.357(1) of Cr.PC., out of total fine amount of Rs.90,00,000/-, a sum of Rs.89,90,000/- is ordered to be paid to the complainant as compensation and Rs.10,000/- is ordered to be remitted to the State.
In view of limited functioning of courts under SOP on account of CORONAVIRUS lock down, the sentence is suspended (without application of accused) for a period of 30 days from this day and the bail bond of the accused is continued till expiry of said period of 30 days.
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, 2020) (K. GURUPRASAD) XIV A.C.M.M., Bengaluru 25 ANNEXURE Witnesses examined for the complainant:
PW.1 : Mr. Sital Guchait
PW.2 : Mr. Krishna Prasad
Witnesses examined for the defence:
DW.1 : Sri. Vasudeva Ingle
Documents marked for the complainant:
Exh.1 : Authorization letter
Exh.2 : Resolution letter
Exh.3 : Power of attorney
Exh.4 : Incorporation certificate
Exh.5 : Invoices
Exh.6 : Copy of insurance claim
Exh.7 : Letter dtd.18.10.2013
Exh.8 : Dispatch register copy
Exh.9 : Cheque for Rs.67,79,247/-
Exh.10 : Deposit slip
Exh.11 : Cheque return memo
Exh.12 : Statement of account
Exh.13 : Legal notice
Exh.14 : Postal receipt
Exh.15 : Postal acknowledgements
Exh.16 : Reply notice
Exh.17 : Affidavit dtd.15.10.2015
Exh.18 : List of documents
Exh.19 : List of documents
Exh.20 : Letter dtd.5.1.2015
Exh.21 : Application
Exh.22 : List of documents
Exh.23 : Application
Exh.24 : Application
Exh.25 : List of documents
Exh.26 : Notice to admit documents
Exh.27 : Application
Exh.28 : Authority letter dtd.5.1.2015
Exh.29 : Letter dtd.29.1.2014
Exh.30 : Power of attorney
Exh.31 : Copy of Certificate of Incorporation
Exh.32 : Tax invoice (177 in numbers)
26
Exh.33 : Copy of application form
Exh.34 : Letter dtd.18.10.2013
Exh.35 : Copy of extract of dispatched material
Exh.36 : Verified copy of cheque dtd.26.12.13
Exh.37 : Deposit slip
Exh.38 : Cheque return memo
Exh.39 : Copy of notice dtd.4.2.2014
Exh.40 & 41 : Two postal receipts
Exh.42 & 43 : Two postal acknowledgements
Exh.44 : Reply notice dtd.24.2.2014
Exh.45 : Certificate of correctness
Exh.46 : Copy of registration certificate
Exh.47 : VAT Return form
Exh.48 : Letter of Revocation dtd.9.4.2015
Exh.49 : Certificate of correctness dtd.5.11.2015
Exh.50 : Copy of legat notice dtd.9.3.2016
Exh.51 : Reply notice dtd.5.4.2016
Exh.52 : Legal notice dtd.5.4.2016
Exh.53 : Reply notice dtd.12.5.2016
Exh.54 : Summary of 177 invoices
Exh.55 : Letter dtd.20.11.2013
Exh.56 : Copy of order in Mis.Civil Appln. No.623/2016
Exh.57 : Copy of agreement
Exh.58 : Statement of account
Exh.59 : Letter dtd.5.12.2016
Exh.60 : F.I.R
Ex.P61 : Copies of tax invoices
Ex.P62 : G-mail dtd.20.1.2018
(with insurance voucher)
Ex.P63 : Certificate U/s.65-B of Evidence Act
Documents marked for the defence:
Ex.D1 : F.I.R Translation
Ex.D2 : Copy of Arbitration Award.
(K. GURUPRASAD)
XIV A.C.M.M., BENGALURU