Bangalore District Court
Shirdi Sai Communications vs Nandi Adventiser on 2 September, 2024
1
C.C.No.17523/2020
KABC030613882020
Presented on : 07-12-2020
Registered on : 07-12-2020
Decided on : 02-09-2024
Duration : 3 years, 8 months, 26 days
IN THE COURT OF THE XXII ADDL.CHIEF JUDICIAL
MAGISTRATE, BENGALURU
PRESENT : SRI.JAI SHANKAR.J,
B.A.L., LL.B
XXII ADDL.C.J.M., BENGALURU.
DATED: THIS THE 2ND DAY OF SEPTEMBER 2024
JUDGMENT UNDER SECTION 355 OF CODE OF
CRIMINAL PROCEDURE
C.C.NO. : 17523/2020
COMPLAINANT : M/s. Shirdi Sai Communications,
No.3, M.N. Complex, 2nd Floor,
3rd Shop, Nagarbhavi Circle,
Jnanabharathi Main Road,
(Near S K Hospital),
Bangalore - 560 072.
Rept by its partner
Sri. K.R.Viswanath,
2
C.C.No.17523/2020
S/o. K.N. Rajanna,
Aged about 45 years.
(By Sri. Sudhakar.H ., Adv.,)
V/S.
ACCUSED : 1. M/s. Nandi Advertiser,
No.16/16, Second Floor,
4th Main Road, Tata Silk Farm,
Basavanagudi, K.R. Road,
Bengaluru - 560 070.
Rept by its Proprietor
Sri.Thippesh
2. Sri. Thippesh,
S/o. Lat Kariyanna,
S/o. Chandramma,
Aged about 27 years,
Prop. M/s. Nandi Advertiser,
R/at Rangasamudra Village,
Rangasamudra Post,
Pavagada Taluk,
Tumkur District - 561 202.
(By Sri. Mahesh Kiran Shetty., Adv.,)
Offence complained : U/s.138 of N.I.Act
of
Plea of the Accused : Pleaded not guilty
Final Order : Accused is convicted
Date of order : 02.09.2024
3
C.C.No.17523/2020
JUDGMENT
This is a private complaint filed by the complainant rept by is partner Sri. K.R. Viswanath against the accused no.1 firm rept by its proprietor Sri. Thippesh for the offence punishable under Section 138 of Negotiable Instruments Act.
2. The brief facts of the complainant's case is as under:
The complainant is a partnership firm rept, by its partner Sri. K.R. Vishwanath and it is a Media solutions for advertising in daily news papers and monthly magazines. The accused no.2 being known to the complainant from past 5 years, he had entrusted work to the complainant by giving ads in daily news papers. But last one year, the accused no. 2 has not paid the pending bills amount ie., Rs.15 Lakhs to the complainant. After repeated demands, the accused no.2 has issued cheque bearing No.337962 dt:18.03.2020 for Rs.12,93,319/- drawn on Corporation 4 C.C.No.17523/2020 Bank/ Union Bank of India, N.R.Colony branch, Bangalore, assuring that, on presentation it would be honored. When the complainant presented the cheque for encashment through its banker ie, Karnataka Bank, Teachers Layout Branch, Bangalore, the same came to be dishonored with shara as Funds Insufficient. Immediately, the complainant got issued the legal notice dt:22.06.2020 through RPAD demanding the repayment of the cheque amount which was served on the accused no.1 & 2 on 29.06.2020 & 04.07.2020, but has not chosen to comply the demand, which has given cause of action to file the present complaint.
3. After filing of the complaint, this court has taken cognizance of the offence punishable U/s.138 of N.I.Act. Sworn statement of the complainant was recorded. Being satisfied that, there are prima-facie materials to proceed against accused, summons was issued. After appearance of the accused no.2 as a proprietor of the accused no.1 firm, 5 C.C.No.17523/2020 he was enlarged on bail and plea was recorded. The accused no.2 has not pleaded guilty, but submitted that, he would go for the trial. Statement as required U/s.313 of Cr.P.C was also recorded and read over the contents to the accused, but he denied the incriminating evidence appeared against him and submitted that, he has the evidence, but he has not chosen to adduce his side evidence or chosen to cross examine the PW.1.
4. From the basis of the pleadings, the following points that arise for my consideration are as follows:-
1. Whether the complainant's firm prove that, the accused no.2 as a proprietor of accused no.1 cheque bearing no. 337962 dt:18.03.2020 for Rs.12,93,319/- drawn on Corporation Bank/Union Bank of India, N.R.Colony branch, Bangalore, towards discharge of his liability which was returned unpaid on presentation for the reason "Funds Insufficient" despite of knowledge of the notice, he has not paid the said cheque amount and thereby, committed an offence punishable U/s.138 of N.I.Act?
2. What order?6
C.C.No.17523/2020
5. The sworn statement and the documents marked at Ex.P.1 to P.8 of the complainant is being treated as the complainant evidence as per the decision rendered by the Hon'ble Apex Court in Indian Bank Association Vs. Union of India and Ors., reported in 2010 (5) SCC 590. As said above, though, sufficient opportunity was granted to the accused to cross examine the PW.1 and also to adduce evidence, but he has not utilized it. Therefore, the cross examination of PW.1 and defence evidence is taken as Nil.
6. Heard the argument of complainant side. The accused has not chosen to canvass his side argument. Perused the materials available on record.
7. My answer to the aforesaid points are as under:-
Point No.1 :- In the Affirmative Point No.2 :-As per the final order, for the following:-
REASONS
8. Point No.1:- The PW.1 has filed this complaint alleging that, the accused no.2 as a proprietor of the 7 C.C.No.17523/2020 accused no.1 firm has committed an offence punishable U/s.138 of N.I.Act. He pleads and asserts that, the accused no. 2 as a proprietor of the accused no.1 firm in discharge of his legal liability has issued the cheque bearing No.337962, dt:18.03.2020 for Rs.12,93,319/- drawn on Corporation Bank/Union Bank of India, N.R.Colony branch, Bangalore, assuring that, on presentation it would be honored. On such assurance, when he presented the said cheque, it returned unpaid with an endorsement as Funds Insufficient. Thereby, he got issued the legal notice dt:22.06.2020, which was served on the accused no. 2 as a proprietor of the accused no.1 firm, but he failed to comply the notice, which has given a cause of action to file the complaint.
9. In this scenario, if the documents placed by the complainant is scrutinized, the PW.1 in order to examine the compliance of statutory requirements as envisaged U/s.138 of NI Act, he got produced the Ex.P.1 cheque 8 C.C.No.17523/2020 dt:18.03.2020. The said cheque is returned with an endorsement as Funds Insufficient as per Ex.P.2, the return advise dt:03.06.2020, the Ex.P.3 is the office copy of the legal notice dt:22.06.2020, Ex.P4 & 5 are the postal receipts and Ex.P.6 & 7 are the postal acknowledgments dt:
29.06.2020. The present complaint is filed on 04.08.2020.
A careful scrutiny of the documents relied by the complainant goes to show that, a statutory requirement of Sec.138 of NI Act is being complied with and this complaint is filed well in time. The PW.1 has discharged his initial burden by examining him and by producing the documents as referred above. Thus, complainant is entitled to rely on the statutory presumptions enshrined U/s.118 R/w. Sec. 138 of N.I.Act.
Sec. 118 of the Act reads as thus, that every Negotiable Instrument was made or drawn for consideration and that, every such instrument when it has been accepted, endorsed, 9 C.C.No.17523/2020 negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
Further Sec.139 of Negotiable Instrument Act provides for presumption infavour of PA holder. It reads like this, it shall be presumed, unless the contrary is proved, that, the holder of a cheque received the cheque, of the nature referred to in Sec. 138, for the discharge, in whole or in part, or any debt or any other liability.
10. A combined reading of the referred sections raises a presumption infavour of the holder of the cheque that, he has received the same for discharge in whole or in part of any debt or other liability. No doubt, the said presumptions of law are rebuttable in nature, the accused can take probable defense in the scale of preponderance of probabilities to rebut the presumption available to the complainant. It is need less to say that, the evidence of the PW.1 can be rebutted even by effectively cross-examining the PW.1, rather entering the witness box. 10
C.C.No.17523/2020
11. So here, it is relevant to note that, whether the accused no. 2 as a proprietor of the accused no.1 firm has really rebutted the presumption available under the law which requires due consideration. It is an undisputed fact that, the disputed cheque does belongs to the accused no. 2 as a proprietor of the accused no.1 firm and it is being dishonored with shara as "Funds Insufficient". Here it is relevant to note that, no prudent man or women would issue a cheque unless there is a liability under it. If this fact is taken into consideration, a presumption could be drawn that, unless and until there is legal liability under the disputed cheque, the accused no. 2 as a proprietor of the accused no.1 firm ought not have issued the disputed cheque. Here, it is also relevant to note that, though the accused no. 2 as a proprietor of the accused no.1 firm had represented through the counsel and had denied the complainant's case, but he has not chosen to disprove the complainant case by rebutting the presumption. It would 11 C.C.No.17523/2020 not be wrong to say that, the evidence of the PW.1 is neither being challenged by the accused no. 2 as a proprietor of the accused no.1 firm nor it is being destroyed by placing probable evidence. When the accused no. 2 as a proprietor of the accused no.1 firm has utterly failed to establish that, the disputed cheque was not issued towards any liability, certainly the case of the complainant has to be accepted and it has to be held that, the accused has issued the disputed cheque towards the discharge of the legally enforceable debt.
12. On the disputed cheque being dishonored as per Ex.P.2 for the reason of "Funds Insufficient", the PW.1 has got issued the demand notice as per Ex.P.3 through RPAD to the accused. As per Ex.P.6 & 7, it is being served. Here, it has to be noted that, the address referred in Ex.P.3 is a very same address referred in the cause title of the complaint and the accused no.2 as a proprietor of the accused no.1 firm is also appeared through his counsel on 12 C.C.No.17523/2020 the court process being served on the said address. Therefore, it has to be construed that, PW.1 has complained the mandatory provision of issuing the demand notice to the accused address. It is also relevant to note that, if really the accused No.2 had not issued the cheque to the complainant, certainly he could have replied the legal notice which also suffices the complainant case so far the issuance of cheque is concerned.
13. In the decision reported in (2021) 5 SCC 283 - Kalamani Tex and Another., Vs. P.Balasubramanian, (2010) 11 SCC 441- Rangappa Vs. Sri.Mohan., Wherein it is held that, when once the complainant establishes his case, than the reverse onus clauses become operative, also aptly applies to the case in hand. In the case in hand, the accused no. 2 as a proprietor of the accused no.1 firm do not dispute the cheque at Ex.P.1 belongs to him and also, do not dispute the dishonour of cheque at Ex.P.2. When the complainant has established the accused no.2 as a 13 C.C.No.17523/2020 proprietor of the accused no.1 firm having issued the cheque at Ex.P.1 towards the discharge of legal liability and their existed a legally enforceable debt, the onus to disprove it, shifts on the accused no.2 as a proprietor of the accused no.1 firm which is not been proved by placing positive evidence. In this background, having the accused no.2 not disputed the complainant case by placing positive evidence, I am of the considered view that, the cheque issued by the accused no.2 at Ex.P1 is for the legally enforceable debt and this fact is being established by the complainant by placing cogent and positive evidence which is not rebutted by the other side. When the provisions U/s.118 and 139 of N.I. Act is looked into, it raises the presumption in favour of the holder of the cheque that, he has received the same for discharge in whole or in part of any debt or other liability.
14. It is worth to note that, Sec.106 of Indian Evidence Act postulates that, the burden is on the accused to 14 C.C.No.17523/2020 establish the fact which is especially within its knowledge. This provision is exception to the general rule that, the burden of proof is always on the prosecution to establish its case beyond all reasonable doubt. In that view of matter, the burden is on the accused to prove that, the cheque in question was not issued for discharge of any liability. But, despite the accused no.2 has taken the defence that, the Ex.P.1 was not issued towards the legal liability, but the said fact and the version is not been established.
15. From the discussion made supra, it could be said that, the complainant has established his case by placing positive evidence. On the other hand, the accused no.2 failed to establish his defence by placing probable defence and also, failed to elicit the said fact from the mouth of the PW.1. To put it in other way, the accused no.2 though taken a probable defence, but it is not been established by placing the positive evidence. The presumption of law lies in favour of the complainant as envisaged U/s.118 R/w. Sec. 139 of 15 C.C.No.17523/2020 N.I.Act. In this back ground, the case of the complainant requires to be accepted. The evidence placed on record establishes that, the complainant has proved that, for discharge of the liability, the accused no. 2 as a proprietor of the accused no.1 firm has issued Ex.P.1 and it is being dishonored for want of Funds Insufficient. Therefore, Point No.1 is answered in the "Affirmative'.
16. Point No.2:- For the reasons discussed in the point No.1, the complainant has proved the guilt of the accused no.2 punishable U/s.138 of N.I.Act. The Hon'ble Apex Court also dealt in the decision reported in (2018) 1 SCC 560, M/s.Meters and Instrument Pvt. Ltd., Vs. Kanchana Mehta., wherein it is held that "the object of provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged, but is not debarred at the later stage subject to appropriate compensation has may be found acceptable to 16 C.C.No.17523/2020 the parties or the court". By considering the decision, it could be said that, the time when the transaction has taken place and the primary object of the provision being kept in mind, I am of the considered view that rather imposing punitive sentence, if sentence of fine is imposed with a direction to compensate the complainant for its monetary loss by awarding compensation U/s. 396 of BNSS 2023, it would meet the ends of justice. By considering these aspects, I am of the considered view that, it would be just and proper to impose fine of Rs.12,98,319/-. Out of the compensation of Rs.12,98,319/-, an amount of Rs.12,93,319/- shall be awarded to the complainant U/s.357 of Cr.P.C. Accordingly I proceed to pass the following :
ORDER Acting U/s.278(2) of BNSS -2023 (Old Correspondence No. 255(2) of Code of Criminal Procedure), the accused no.2 as a proprietor of the accused no.1 firm is convicted for the offence punishable under section 138 of the 17 C.C.No.17523/2020 Negotiable Instruments Act, the accused no. 2 as a proprietor of the accused no.1 firm is sentenced to pay fine of Rs.12,98,319/- (Rupees Twelve Lakhs and Ninety Eight Thousand Three Hundred and Nineteen only).
In default thereof, the accused no. 2 as a proprietor of the accused no.1 firm shall undergo simple imprisonment for the term of one year.
Acting U/s. 396 of BNSS - 2023 (Old Correspondence No. 357(1)(b) of Cr.P.C), it is ordered that, Rs.12,93,319/- (Rupees Twelve Lakhs and Ninety Three Thousand Three Hundred and Nineteen only) there from shall be paid to the complainant as compensation. The remaining fine amount of Rs.5,000/- (Rupees Five Thousand only) is defrayed to the state for the expenses incurred in the prosecution.
The office is to furnish the free copy of this Judgment to the accused forthwith. (Directly dictated to stenographer on computer, typed by her, revised by me and then pronounced by me in the open court on this the 2nd day of September 2024).
Digitally
signed by JAI
JAI SHANKAR J
SHANKAR Date:
J 2024.09.02
16:34:34
+0530
(JAI SHANKAR.J)
XXII Addl. Chief Judicial Magistrate, Bengaluru.18
C.C.No.17523/2020 ANNEXURE List of witnesses examined on behalf of complainant:-
PW.1 : Sri. K.R.Viswanath List of exhibits marked on behalf of complainant:-
Ex.P1 : Original cheque Ex.P1(a) : Signature of the accused Ex.P2 : Bank Memo Ex.P3 : Legal notice Ex.P4 & 5 : Postal receipts Ex.P6 & 7 : Postal acknowledgments Ex.P.8 : GST Certificate
List of witnesses examined on behalf of the accused:-
- Nil-
List of exhibits marked on behalf of the accused:-
- Nil- Digitally
signed by JAI
JAI SHANKAR J
SHANKAR Date:
J 2024.09.02
16:34:40
+0530
(JAI SHANKAR. J)
XXII Addl. Chief Judicial Magistrate, Bengaluru.