Bangalore District Court
53/54 vs No.5 By Sri. B.M. Kushalappa on 19 January, 2023
SCCH-2 1 C.C.No.4849/2018
KABC020262812018
IN THE COURT OF THE VI ADDL. JUDGE, COURT OF SMALL
CAUSES AND ADDL. CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY (SCCH-2).
C.C. NO.4849/2018
Present: Smt. Shainey K.M., BAL.,LL.B.,
6th Addl. Judge, Court of Small
Causes and ACMM, Bengaluru.
Dated: On this the 19th day of January, 2023.
JUDGMENT U/S 355 OF CR.P.C. 1973.
1. Sl.No. of the Case : C.C. No:4849 of 2018.
2. The date of : 27.10.2018.
commission of the
offence
3. Name of the : Florance Flora Farm (Proprietary)
Complainant
53/54, Thippur post,
Suttahalli Village,
Sasalu Hobli, Doddaballapur Taluk,
Bangalore Rural District,
Karnataka-561 204.
SCCH-2 2 C.C.No.4849/2018
Rep. By Authorized representative/
senior manager,
Finance & accounts & power of
attorney holder,
Mr. A.A. Johnson,
S/o A.L. Antony,
Aged about 57 years.
(By Sri. D.P. Prasanna, Advocate)
4. Name of the Accused 1 OOTY FLORA,
a regd. Partnership firm,
#P-64, Church Road,
Bedford, Coonoor-643 101,
The Nilgiris,
Tamilnadu State,
Rep. By its Managing partner,
Mr. Jesuraja Bakthan Daniel.
2 Mr. Vijay Lourdaraj,
C/o Jagadeshwari &
Mr. Suresh Raj,
Flat #2127/2003, First Floor,
9th Main, D-Block,
Sahakaranagar,
Bangalore-560 092.
SCCH-2 3 C.C.No.4849/2018
And also at:
S/o Joseph Palraj,
Door No.107,
Thiruvarangam Compound,
D.B. Alwarpet, Coonoor,
The Nilgiris,Tamilnadu State.
3 Mr. Jesuraja Bakthan Daniel,
S/o Mr. Dhansingh Raj,
Residing at Door No.47/87D,
Asir Compound, Head Post
Office, Coonoor-643 101, The
Nilgiris, Tamilnadu.
4 Mr. J. James,
S/o Mr. A. JosephJaganathan,
Residing at #100, Stanley Park
Road, Ottupatrai, Coonoor-643
101, The Nilgiris,
Tamilnadu State,
5 Mr. Benjamin Paul Daniel,
S/o Late. Deniel,
Residing at No.187,
Brooklands,
Coonoor-643 101,
The Nilgiris, Tamilnadu.
SCCH-2 4 C.C.No.4849/2018
(Accused No.1 to 4 by Sri. K.R.Lakshmana Rao,
Advocate,
Accused No.5 by Sri. B.M. Kushalappa,
Advocate)
5. The offence complained : Under Section 138 of the
of or proves Negotiable Instrument Act.
6. Plea of the accused and : Pleaded not guilty.
his examination
7. Final Order : Accused is convicted.
8. Date of such order for : 19.01.2023
the following
:: JUDGMENT ::
This is a private complaint against the accused filed under Sec. 200 of Cr. P. C., for the offence punishable under Section 138 of the Negotiable Instruments Act.
02. Complainant-Florance Flora Farm is a sole proprietary concern and it is duly represented by it's authorized representative-Senior Manager namely Sri. A.A. Johnson. The complainant is doing the Floriculture activities in it's farm at Sy.No.53/54, at Thippuru Post, Suttahalli Village, Doddaballapura Taluk.
SCCH-2 5 C.C.No.4849/20182.1. Accused No.1 is a registered Partnership Firm and accused No.2 to 5 are it's partners having their office at No.P-64, Church Road, Bedford, Coonoor, Nilgiris District, Tamilnadu State and it is also into Floricultural activities like purchasing plants and selling of flowers. The accused had a running account with the complainant. The complainant has delivered the plants and bulbs to the accused from its farm at Bengaluru on credit basis. Out of the purchase of plants, the accused have made from the complainant, there is a huge balance amount of Rs.90,26,220/- covering under 9 invoices. Towards payment of aforesaid amount and pending credit, the partners of accused firm have issued total 9 post dated cheques as follows:
Sl.No Cheque Date Amount.
No.
1. 0003596 29.11.2017 Rs.15,02,121/-
2. 0003580 29.11.2017 Rs. 4,50,000/-
3. 003582 03.01.2018 Rs. 4,48,000/-
4. 003584 03.01.2018 Rs. 3,60,000/-
5. 003592 25.01.2018 Rs.23,15,600/-
SCCH-2 6 C.C.No.4849/2018
6. 003593 08.02.2018 Rs. 2,70,000/-
7. 003594 14.03.2018 Rs. 2,70,000/-
8. 003597 14.03.2018 Rs.28,66,800/-
9. 003598 06.30.2018 Rs. 4,95,000/-
2.2. It is contended that, complainant has issued
statutory notice to the accused in respect of aforesaid cheques referred in the table and initiated the proceedings in pursuance of the statutory notice. After issuance of notice and initiation of the proceedings, the accused have issued two fresh cheques in lieu of cheques referred at Sl.No.3 to 9 mentioned in above table by adding some lump sum interest on the amount in due and details of fresh cheques issued by the accused are as hereunder:
Sl.No Cheque No. Date Amount.
1. 712343, ICICI Bank, 22.08.2018 Rs.50,00,000/-
Coonoor Branch.
2. 712344, ICICI Bank, 28.08.2018 Rs.30,00,000/-
Coonoor Branch.
SCCH-2 7 C.C.No.4849/2018
2.3. It is contended that, as accused No.1 is a registered firm the accused No.2 to 5 have been in-charge of, and responsible for the day to day affairs of the firm. Aforesaid accused persons being the partners of accused-firm are all jointly and severally liable to pay the amount covered under the cheques. Each cheque issued by the accused in respect of the part payment of due amount would cause a distinct offence and separate cause of action and therefore, separate notices are issued for each cheque. The cheque bearing No. 712344 dated: 28.08.2018 issued by the accused in favour of the complainant for a sum of Rs.30,00,000/- drawn on ICICI Bank, Coonoor Branch was returned with shara dated: 29.08.2018 as "Funds Insufficient".
2.4. That on 20.09.2018, the complainant issued a legal notice to accused through his counsel and same was duly served on the accused No.1, 2, 3 and 5 as per postal acknowledgments. Notice in respect of accused No.4 was returned as no such addressee. Despite the due service SCCH-2 8 C.C.No.4849/2018 of statutory notice, accused No.1 to 4 have not replied the notice. Accused No.5 has instead complying the notice, he has sent a untenable and false reply. Hence, this complaint.
03. On filing of the private complaint, the Court has taken cognizance of the above offence and proceeded with the case as there was a ground to proceed against the accused.
04. The accused no 1 to 5 have put appearance before the court through their counsel, filed separate bail applications, and offered cash surety for appearance before the court and enlarged on bail.
05. The plea of accused persons was recorded, read over and explained to the accused, for which, they have not pleaded guilty and claimed to be tried.
06. In support of complainant's case, Senior Manager and GPA of complainant was examined as Pw:1. Exhibits were marked as Ex-P:1 to 36 and closed the evidence. SCCH-2 9 C.C.No.4849/2018 Learned counsel for accused has cross examined P.w.1. Ex.P.37 is marked during cross-examination of D.W.1.
07. Statement U/Sec. 313 of Cr.P.C., was recorded and read over, explained to accused and they have denied the contents of statement as false. Accused No.1 to 4 have not adduced oral or documentary evidence. Accused No.5 has examined himself as D.W.1. Ex.D:1 to 15 were marked in defence evidence.
08. Heard the arguments of complainant and accused. Counsel for complainant has filed written arguments by way of reply and memo with list of decisions. Counsel for accused No.1 to 4 and accused No.5 has filed separate lists with decisions. Perused the material placed on record, now, following points arises of the consideration for the disposal of the case.
POINTS
1. Whether Complainant proves beyond all reasonable doubt that Accused have committed an offence punishable under Section 138 of Negotiable Instruments Act? SCCH-2 10 C.C.No.4849/2018
2. Whether accused have rebutted the presumption as contemplated u/sec 139 of N.I Act?
3. What order?
09. My answers to the above points are as follows:
Point no:1 : In the Affirmative.
Point no:2 : In the Negative.
Point no.3 : As per final order for the
following:
:REASONS:
10. Point No.1 & 2:- This is a private complaint filed
against the accused for the offence punishable under Sec. 138 read with section 142 of N.I Act. On perusal of the oral and documentary evidence placed by the complainant, it reveals that the present complaint is filed well within time in accordance with the provisions of Negotiable Instruments Act. Moreover, there is no dispute with regard to taking cognizance of the offence punishable under Section 138 of N I Act.
SCCH-2 11 C.C.No.4849/2018
11. At the outset, an essential ingredient of Section 138 of N.I Act is that, the cheque in question must have been issued towards legal liability. Under Section 118 of the Act, a presumption shall be raised regarding consideration, date, transfer, endorsement and regarding holder in the case of Negotiable Instruments. Even under Section 139 of the Act, a rebuttable presumption shall be raised that, the cheque in question was issued regarding discharge of legally enforceable debt. These presumptions are mandatory provisions that are required to be raised in case of negotiable instruments.
12. The issuance of cheque and signatures of partners of the accused firm is not in dispute at all. It is the case of the complainant that, accused No.1 is a Partnership Firm (Hereinafter called Partnership Firm) and accused No.2 to 5 being it's partners have purchased the different verities of decorative, exotic and imported plants from the Complainant-Farm (hereinafter called Farm), on credit basis, on several dates, amounting to huge sums and SCCH-2 12 C.C.No.4849/2018 they have issued several cheques to Farm towards payment of due amount. It is admitted fact that, complainant-Farm has instituted several criminal cases against the very same accused persons for the offence punishable U/Sec.138 of N.I. Act in C.C. No.832/2018, C.C. No.833/2018, C.C. No.4848/2018 and C.C. No.4849/2018 (Present Case) in this Court.
13. To establish it's case, GPA Holder and Senior Manager of the complainant has filed the affidavit in lieu of examination-in-chief and examined himself as Pw:1 and he has reiterated the averments made in the complaint. He has produced the disputed cheque, memo issued by the bank, office copy of legal notice, postal receipts, postal acknowledgments, reply Notice given by the accused and notarized copy of GPA executed by the complainant at Ex.P.1 to 11, respectively.
14. To prove the alleged transaction and supply of different plants to the Partnership Firm, P.W.1 has produced Invoices (9 in numbers) and Ledger Entry SCCH-2 13 C.C.No.4849/2018 Extract (3 in numbers) along with certificate under Sec.65B of Evidence Act at Ex.P:12 to 23, respectively.
15. Perusal of Ex.P.12 to 20-the Invoices dated:11.10.2016, 20.10.2016, 24.10.2016, 26.10.2016, 14.11.2016, 24.11.2016, 22.12.2016, 10.01.2017 and 19.01.2017 clearly reveals that, the complainant-Farm has supplied plants of Navona, Pavia, Blackout, Crystal Blank, Sorbonne, Ravenna, Justina, Zantrijus and other decorative plants, on aforesaid dates to the accused- Partnership Firm. The quantity of each decorative plant supplied to the partnership firm and its price have been clearly mentioned therein Ex.P:12 to 20.
16. Perusal of Ex.P:23- the Ledger Account Extract clearly discloses that, the due amount payable by the accused for the period from 01.04.2016 to 31.03.2017 was Rs. 2,56,32,200/- in respect of the Exotic and ornamental plants supplied by the complainant. Ex.P:22 is the Ledger Account Extract maintained by the complainant in respect of transaction with the accused SCCH-2 14 C.C.No.4849/2018 for the period from 01.04.2017 to 31.03.2018 and perusal of same reveals that, the due amount payable by the accused to the complainant was Rs.1,97,70,852/-. Ex.P:21 is the Bill-wise details in respect of aforesaid decorative plants allegedly supplied to the accused from 01.04.2018 to 23.08.2018 and perusal of same reveals that, the amount due from the accused to the complainant was Rs. 90,26,220/-. The supply of decorative plants to the accused persons as mentioned in Ex.P:12 to 23 are not seriously disputed by the accused persons. Moreover, accused No.5 being one of the Ex- partner has clearly admitted the supply of the plants by the complainant to the accused Firm.
17. The existence of complainant farm is not in dispute. To prove it's existence, complainant has produced Registration Certificate of Establishment issued by Department of Labour at Ex.P:24 and perusal of same reveals that, the complainant was permitted to do Tissue Culturing for Floriculture in the name and style "Florance SCCH-2 15 C.C.No.4849/2018 Flora Farm", from 19.12.2017 to 31.12.2021. Government of India, Ministry of Commerce and Industry/Department of Commerce has issued a letter by accepting application of complainant for allotting Importer-Exporter Code Number (0708010253) as per Ex.P:25. The complainant has also produced the Certificate of Importer-Exporter Code along with Ex.P:25. All these documents are sufficient enough to believe that complainant Farm is doing a legal business.
18. The complainant is an income tax assessee and he has produced I.T. Returns along with statement of total income for the assessment year 2017-2018 and 2018- 2019 at Ex.P:26 and 27, respectively. To show the nature of its business and turnover made by the complainant Farm, in particular assessment year, it has produced I.T. Returns along with balance sheet.
19. Ex.P:28 to 33 are the Luggage Slips issued by Annannya Travels Cargo and perusal of the same reveals that, plants have been supplied and transported by the SCCH-2 16 C.C.No.4849/2018 complainant Farm to the accused firm and plants have been delivered to Accused No.1, at Ooty on several dates. Contents of Ex.P:28 to 33 are not seriously disputed by the accused No.1 to 5. Moreover, in aforesaid luggage slips, the name of the receiver is clearly shown as Daniel-Dani-Dainival-Dainivel i.e., one of the accused herein. Accused no: 3 is Jesuraja Bakthan Daniel and accused no: 5 is Benjamin Paul Daniel.
20. It is an admitted fact that Accused No.5 is the former partner of the accused Firm and he has clearly admitted in cross-examination that, complainant has used to transport the ornamental plants to the accused by road. Thus, it is clear that, accused have received all the consignments sent by the complainant Farm under Ex.P:28 to 33.
21. Deputy Director (E) for Ministry of Agriculture and Formers Welfare, Chennai has issued Import Release order and PEQ Intimation Dated:01.11.2019 to Complainant Farm as per Ex.P:34 and details of request SCCH-2 17 C.C.No.4849/2018 of complainant and fee receipt are clearly mentioned in aforesaid document. Ex.P:35 is the duplicate copy of Bill of Entry for Home Consumption and perusal of same reveals that, complainant has got imported different varieties of plants like Flower Bulbs, Live Plants and Lilium Asiatics from Netherland vide receipt No.0361990 to 0361999, 0362000, 9632513, 9632514, and 4619031 to 4619035. All these documents are sufficient enough to believe that complainant Farm was carrying on legal business and it did not violate any law or rules.
22. The accused firm was registered on 13.03.2019 in the name and style "Ooty Flora" and it is evident from perusal of Ex.D:5-the Register of Firms. Accused Firm was came into existence on 13.03.2019 as per Ex.D:5.
23. Accused No.2 and 3 are the original partners of accused firm. After some time, accused No.4 and 5 have joined accused firm as additional partners. However, no partnership deed has been produced by both parties to show the exact date of entry of additional partners to SCCH-2 18 C.C.No.4849/2018 accused Firm. Thereafter, on 20.11.2017, accused No.5 has tendered resignation to the accused firm and other partners, through post, as per Ex.D:1 stating that, he cannot share the huge loss made by the negligence of partners. Thus, it is clear before the Court that, accused No.5 has been the partner of the accused firm only till 20.11.2017. Ex.D:12 is the certified copy of Rent Agreement between Accused No.5 and Roy Verghese in respect of Flat No.C-5, situated at Thevara, Cochin for the period from 01.02.2018 to 31.12.2018 and he has tendered resignation to the accused firm.
24. It is the specific contention of the 5 th accused that he is not liable to pay the amount covered under the cheque. To substantiate his contention, 5 th accused- Benjamin Paul Deniel has examined himself as D.W.1 and in his cross-examination he has clearly admitted that, complainant has supplied the exotic and ornamental plants to the accused firm. D.W.1 has clearly deposed in cross-examination that, accused firm used to get supply SCCH-2 19 C.C.No.4849/2018 of plants from the complainant Farm and Firm used to pay the amount through cheque. Therefore, much discussion is not required to say contents of Ex.P.12 to 23 are true and genuine.
25. The admission given by Dw:1 has remained unchallenged by rest of the accused persons. Moreover, accused No.1 to 4 have not at all cross-examined D.W.1 in order to establish that, evidence of this witness is incorrect or false. One of the Partners of the accused firm has requested the complainant via e-mail for supply of plants and Senior Manager of the complainant also has replied to the same via e-mail and it is evident from perusal of Ex.P:36. The complainant has shared Pro-forma Invoice, variety of plants, bulbs, number of crates including the Images of the same to accused via e-mail.
26. E-mails were sent to and replied by P.W.1, who is the GPA Holder as well as Senior Manager of the complainant. Therefore, it is clear before the Court that, complainant- SCCH-2 20 C.C.No.4849/2018 Farm has supplied the aforesaid plants on aforesaid dates to the accused firm.
27. There are number of exchange of communication via Email between the partners of accused Firm and Pw:1- Senior Manager of the Complainant and said fact itself is sufficient to hold that Pw:1 has personal knowledge of the business transaction between the parties to the case.
28. It is an admitted fact that Accused no:5 is the former Partner of accused Firm. Admittedly, name of accused has not been reflecting on ExP:36-Email conversation, but it is significant to note that said Email were sent by this accused who was the then Partner of the accused Firm. So, accused Firm cannot escape from its liability merely by saying Firm's name is not mentioned in Email ID in ExP:36.
29. The cheque in question is marked as ExP:1. The issuance of cheque is not in dispute at all. It is the specific contention of the accused firm that cheque in SCCH-2 21 C.C.No.4849/2018 question issued to complainant for the purpose of the security during the course of the business.
30. It is not the defence of the accused that cheque was stolen by or obtained under duress by the complainant herein. Genuineness of signatures of partners of accused firm on the cheque is not in dispute at all. Moreover, nothing has been suggested to Pw:1 that complainant has misused the cheque belonging to the accused persons.
31. It is the specific contention of Accused no:1 to 4 that, cheque in question was issued to the complainant for the purpose of security about 4-5 years ago. Therefore, the burden is heavily lies upon the accused no:1 to 4 to establish that, they issued the cheque in question only for the purpose of security, and not towards payment of amount in due. However, to substantiate, their contention aforesaid accused no:1 to 4 have not adduced oral or documentary evidence in this case. Moreover, Accused no:1 to 4 have not at all entered the SCCH-2 22 C.C.No.4849/2018 witness box to establish that they have issued the cheque in question for the purpose of the security.
32. The cheque in question issued by the partners of the accused was dishonoured as per ExP:2-memo issued by the bank and therefore, the complainant has issued a statutory notice to the accused firm and its partners. ExP:3 is the office copy of statutory notice. The notice was duly served on accused as per ExP:4 to 7-the postal acknowledgments. ExP:8 and 9 are the returned postal cover in respect of statutory notice. Accused no:5 has replied the statutory notice as per ExP:10.
33. It is significant to note that, accused no:2 to 4 being the partners of the accused firm have not even replied the statutory notice issued by the complainant after dishonour of the cheque. Except, accused no:5, none of other partners of the accused firm have replied the notice nor denied their liability to pay the amount covered under the cheque in question. This is a fatal to defence of accused no: 1 to 4.
SCCH-2 23 C.C.No.4849/2018
34. A question arise for consideration regarding competency of Pw:1 to prosecute the case as well as depose evidence on behalf of the complainant. Pw:1 has been the Senior Manager of the complainant and it is not in dispute. The complainant has closed his Floriculture business long ago and the Farm is not in existence at present and it is not in dispute.
35. As stated above, as per E-MAIL communication took place between the parties to the case, Pw:1-the Senior Manager of the complainant was contacted by the partners of the accused Firm for the supply of plants and bulbs as per the information available in ExP:36. Since 20.10.2016, only he has been managing the affairs of the complainant Farm and has been constantly in contact with the accused and furnished all details to accused Firm about the items/plants prior to delivery of plants. Thereafter, the proprietor of the complainant Farm has executed a GPA to Pw:1, on 2.2.2018 as per ExP:11. It is significant to note that since 2016 Till 3.9.2019, Pw:1, the SCCH-2 24 C.C.No.4849/2018 GPA holder of the complainant has furnished all description of the plants, price and quantity and all other details of the plants including the Images of the plants to the accused through emails as per Ex-P:36. Moreover, statutory notice was also issued by the GPA holder of the complainant after dishonour of the cheque.
36. All these facts are sufficient enough to come to a conclusion that Pw:1 the power of attorney of the complainant is aware of all the transaction between the parties to the case. Therefore, Pw:1 is a competent person to give evidence and prosecute the case on behalf of the complainant. Therefore, the decision relied on by the accused no:1 to 4 reported in 2014 CRI L 576 (supreme court), Crl. Petition no: 8257, 8235,8262, 8277 and 8279 of 2019 of hon'ble high court of Karnataka, are not helpful to accused no:1 to 4.
37. Regarding Time barred transaction: Learned counsel for accused no:1 to 4 argued that cheque issued towards time barred transaction is an illegal transaction and SCCH-2 25 C.C.No.4849/2018 therefore, the present complaint is not maintainable. In support of his argument he has relied on decision of hon'ble high court of Karnataka reported in Crl. Petition no: 1387-2011.
38. It is significant to note that during the cross examination of Pw:1 nothing has been suggested to this witness that cheque in question was issued towards time barred transaction and it is an illegal transaction.
39. What is the exact date of period of limitation starts from and when it's come to an ends, all these points are very relevant facts for consideration to decide if a transaction is a time barred or not, however, such important facts have not been elicited in the cross examination of Pw:1. Therefore, aforesaid decision relied upon by accused no:1 to 4 is not helpful to their case.
40. Regarding Part payment: Learned counsel for the accused no: 1 to 4 argued that, the present complaint is not maintainable, because, Sec. 56 of NI Act not been complied with by the complainant. It is argued that when SCCH-2 26 C.C.No.4849/2018 a part or whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in sec 56 of the Act. However, to substantiate their contention accused no:1 to 4 have not placed positive evidence before the court.
41. Firstly, aforesaid accused persons have not adduced oral evidence before the court. Secondly, aforesaid accused persons have not placed any material before the court to show alleged part-payment made by them to the complainant.
42. If part-payment is made, then what is the quantum of amount paid to the complainant and date of payment?, What was the balance amount in due payable to the complainant? All these information have not been furnished by the accused. Finally, even no such suggestion has been made to Pw:1 in the cross examination. Therefore, the decision relied upon by the accused person reported in Crl. Appeal no: 1497-2022 of hon'ble Supreme Court of India and Parameshwari SCCH-2 27 C.C.No.4849/2018 Textiles (P) VS Rajam & Co. are not helpful to defence of accused.
43. Liability of accused No.2 to 4: Ex.D:7 and 9 are the Aadhaar cards of accused no:3 and 5. Ex.D:8 is attested copy of Aadhaar Card of Krishna Shanthi. R, the present Partner of the accused Firm. It is not in dispute that accused no:2 to 4 are the partners of the accused firm and therefore, they are responsible for the day-to-day affairs of the accused firm.
44. Liability of Accused No.5:- It is an admitted fact that, accused No.5 along with accused No.2 to 4 has been one of the Partner of Accused No.1-firm. Ex.D.1 is the resignation letter tendered by accused on 20.11.2017. He sent the resignation letter to other partners of the firm through RPAD and to substantiate his contention he has produced the postal receipts of resignation letter at Ex.D:2.
45. Lawrence Mary and K.T Daniel, the partners of the accused Firm have received Resignation letter of the SCCH-2 28 C.C.No.4849/2018 accused no:5 as per Ex.D:3-the postal acknowledgments. Thereafter, the accused no:5 herein has joined 'Global Tea Brokers private limited' on 10.1.2018, as a Senior Vice President with effect from 15.01.2018 and it is evident from perusal of Ex.D:4-the appointment/confirmation letter.
46. Partnership Settlement Agreement has been entered into between the present partners of accused firm and accused no:5 herein as per Ex.D:6, wherein it has been clearly mentioned that accused no:5 has relieved from the partnership with effect from 31.12.2017. It was agreed between the partners that the residential property given as a collateral security would be returned to accused no:5 without any encumbrance or claim, whatsoever, as per Ex.D:6. It is also agreed by the parties that accused no:5 would be relieved of any responsibilities and any litigation financial or otherwise immediate effect and it is evident perusal of contents of Ex.D:6.
SCCH-2 29 C.C.No.4849/2018
47. As per Ex.P:36, the accused firm and complainant have had positive business transactions with each other from 2016 till September, 2019 and therefore, the accused no:5 is not liable to pay the amount covered under cheque, since he tendered resignation to and left the accused firm in the month of November, 2017.
48. In Alka Khandu Avhad Vs Amar Syamprasad Mishra & Anr. (Crl. Appel no: 258-021) hon'ble Apex court of India (at para :7) has held that even in a case of joint liability, in case of individual persons, a person other than a person who has drawn the cheque on an account maintained by him cannot be prosecuted for the offence under section 138 of NI Act.
49. Learned counsel for Accused no:5 argued that, this accused was not responsible for day-to-day affairs of the partnership firm and he had not signed few of the cheque in question and so, he is not liable to be prosecuted for offence punishable u/sec 138 of N.I Act and he has relied on the decision of the Hon'ble High Court of Karnataka in SCCH-2 30 C.C.No.4849/2018 Crl.P.No:101561/2020, Crl.P.No:9492/2021, Crl.P. No. 100639/2022 and Hon'ble Supreme Court of India Crl.P. No:813/2013 (S.C.), Crl.P. No:767/2022 (S.C.).
50. The accused no:5 has tendered his resignation to the partnership firm in November, 2017 and cheque in question was issued to complainant after sometime. The cheque in question was dishonoured after tendering his resignation to the accused firm. The statutory notice of dishonour of cheque was also issued by the complainant after the resignation of accused no:5.
51. To discharge his burden, accused no:5 has given evidence as Dw:1 and produced several documents to show that, he has tendered resignation voluntarily to the accused firm in November, 2017 and it was accepted by the accused firm's partners. The partners of the accused firm have also executed a settlement deed to the accused no:5 in the year 2021, as per ExD:6 and 10. This accused also sent a letter to Branch Manager, ICICI Bank, Coonooor on 24.3.2018 as per Ex.D.11 and given SCCH-2 31 C.C.No.4849/2018 information to the bank about his resignation to the accused firm as partner. Therefore, the accused no:5 cannot be prosecuted for the offence p/u/sec 138 of N.I Act.
52. Validity of Cheque:- Counsel for accused no:1 to 4 argued that cheque is post-dated which was presented beyond the period of 3 months from the date the cheque bear will be out of the purview of sec 138 of NI Act. It is argued that prosecution being misconceived and it is an abuse of the criminal court.
53. Careful perusal of cross examination of Pw:1 reveals that cheque in question was issued probably in the year 2017. The date mentioned in the Ex.P:1-cheque is 28.08.2018. It is not the case of the accused that, date, amount, name mentioned on the cheque are not of handwriting of partners of the accused. Nothing has been elicited from the mouth of Pw:1 that complainant or some other person on behalf of the complainant has filled up aforesaid details including the date on cheque. SCCH-2 32 C.C.No.4849/2018
54. Nothing has been suggested to Pw:1 that the date column was kept blank while issuing it and thereafter, the complainant has written the date on the cheques. So, this court has come to a conclusion that, partners of the accused firm or some other person has written all the details on the cheque on behalf of the Firm. For aforesaid reasons, the decision relied upon by the accused no:1 to 4 reported in Crl.P no: 102509-2022 of hon'ble high court of Karnataka, Dharwad bench is not helpful to the case of accused.
55. Counsel for the accused no: 1 to 4 submitted that Sec. 23(1)(b) of Karnataka Goods and Services Tax Act. & Clause 8 and 9 of Plant Quarantine (Regulation of Import into India) Order 2003 have been violated by the complainant while importing the plants to India and therefore, the present case is not maintainable. Aforesaid Act and rules have no role to play at all in the present matter. It is a case under sec 138 of NI Act and SCCH-2 33 C.C.No.4849/2018 this provision is based on a special statute being NI Act which deals with negotiable instruments.
56. Violation of aforesaid Rules referred by the accused itself is not a ground to acquit the accused persons. If anyone has violated provisions of aforesaid Act and rules, the concerned authority would take penal action against such person. The person has allegedly violated provision of aforesaid Act or Rule is not a ground to curtail his right of taking the shelter of court and law to enforce his remedy for violation of provision of NI Act.
57. At this stage, it is clear that the complainant is the holder of cheque and a presumption under sec 139 of NI Act is in his favor. The cheque when presented by him to bank was dishonoured and cheque bears the signature of partners of the accused Firm.
58. The moment the cheque was dishonoured, it invited elements of offence u/sec 138 of NI Act and said offence is completed when after demand notice the accused did not make payment of the dishonoured cheque. In a SCCH-2 34 C.C.No.4849/2018 criminal proceeding under sec 138 of NI Act, these are not relevant at all. My reasons are supported with the decision of honble high court of Calcutta, reported in a case between Samarendra Nath Das and Supriyo Maitra, on 16 December, 2005 (2006 (3) CHN 518).
59. It is significant to note that, no notice has been issued to complainant asking for return of the cheque. The accused herein have not taken any legal action against the complainant herein even after alleged payment or part payment of amount in due.
60. In this case, the issuance of cheque is not in dispute. The signature of the accused found in cheque is also not in dispute. Therefore, the burden is heavily lies on the accused to establish that, it is not liable to pay the amount covered under cheque.
61. Admittedly, Counsel for the accused no:1 to 4 has cross-examined P.W.1 in detail, however, nothing worthwhile is elicited from the mouth of P.W.1 to establish the defence of the accused. Much discussion is not SCCH-2 35 C.C.No.4849/2018 required in this case to hold that, accused no:1 to 4 are guilty of the offence punishable under Sce.138 of N.I. Act, because, issuance of cheque in favour of complainant has been admitted by the accused. Therefore, it is clear before the court that, aforesaid accused have committed the offence under Sec.138 of N.I. Act.
62. Positive evidence adduced by Pw:1 inspires the confidence of the Court. The oral evidence of complainant is supported with documentary evidence. There is no rebuttal evidence to disbelieve the evidence of Pw:1. Hence, the evidence of the complainant has to be believed. The accused persons being the partners of the accused firm have issued above cheque to complainant, and they failed to rebut the presumption, which is in favour of complainant.
63. As appreciated and discussed supra, the complainant has proved by placing convincing evidence to show that accused is due of payment of cheque amount. In view of sec. 139 of NI Act, it has to be presumed that a cheque is SCCH-2 36 C.C.No.4849/2018 issued in discharge of any debt or other liability. Coming back to the facts in the present case, this court is of the view that the accused did not raise a probable defence.
64. In the light of the discussion herein above, I am of the considered opinion that the complainant has proved that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act. Accordingly, I answer point No.1 in the affirmative and point No.2 in the negative.
65. POINT No.3:- The Negotiable Instruments Act is a special enactment, and the provisions of the Act prevail over the general provisions contained in Code of Criminal Procedure. Therefore, keeping the relevant provisions of the Act in mind the sentence is to be passed. In the light of the reasons on the point No.1, I proceed to pass the following;
ORDER Acting under Sec. 255 (2) of Cr.PC, the accused are found guilty of the o/p/u/s 138 read with section 142 of NI Act.
SCCH-2 37 C.C.No.4849/2018
Accused no:1 is a registered Firm.
Accused no:2 to 4 being the partners of Firm are sentenced to pay fine of Rs.30,05,000/-
(Rs. Thirty lakhs and five thousand) out of
which Rs.30,00,000/- shall be paid as
compensation to the complainant under Sec. 357 of CR.PC and Rs.5,000/- shall be payable to the State.
In the event of default in payment within a period of 3 months, the accused no: 2 to 4 shall be convicted to simple imprisonment for a period of 3 months.
Accused no:5 is acquitted for the o/p/u/sec 138 of NI Act.
The bail bond of accused persons and that of surety stands cancelled.
Supply a free copy of this Judgment to the accused no: 1 to 4.
(Dictated to the stenographer on official desktop, typed by her, corrected, signed, then pronounced by me in open court on this the 19th January, 2023).
(Shainey. K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.
SCCH-2 38 C.C.No.4849/2018:ANNEXTURE:
LIST OF WITNESSES EXAMINED BY THE COMPLAINANT:
P.W.1 : Sri. A.A. Johnson.
LIST OF DOCUMENTS MARKED ON BEHALF OF COMPLAINANT:
Ex.P.1 : Original Cheque dated:28.08.2018.
Ex.P.1(a) : Signatures of accused. Ex.P.2 : Cheque return memo dt:29.08.2018. Ex.P.3 : Copy of legal notice dt:20.09.2018. Ex.P.3(a to : 6 Postal receipts. f)
Ex.P.4 to 7 : 4 Postal Acknowledgments. Ex.P.8 : Returned Postal Cover sent to accused No.2.
Ex.P.8(a) : Returned legal notice.
Ex.P.9 : Returned Postal Cover sent to accused
No.4.
Ex.P.9(a) : Returned legal notice.
Ex.P.10 : Reply issued by the 5th Accused
dt:09.10.2018
Ex.P.11 : Notarized copy of General Power of
Attorney issued by the Complainant to A.A. Johnson.
Ex.P.12 to : 9 Invoices for the supply of description of 20 plants by the complainant to accused. SCCH-2 39 C.C.No.4849/2018
Ex.P.21 to : 3 Ledger Account Extracts of complainant. 23 Ex.P.24 : Certified copy of Registration Certificate of Establishment issued by the Department of Labour to complainant's farm.
Ex.P.25 : Certified copy of Import and Export Code Registration Certificate of complainant's company.
Ex.P.26 : Income Tax Returns of complainant for the year 2017-2018 with Audit Report.
Ex.P.27 : Income Tax Returns of complainant for the year 2018-2019 with Audit Report.
Ex.P.28 to : 6 Certified copy of consignment-Plant 33 Transport Bills of complainant's farm. Ex.P.34 : Certified copy of Letter and Release Order issued by the Regional Plant Quarantine Station to complainant company.
Ex.P.35 : Certified copy of Customs Duty Paid Bill for Home of Customs.
Ex.P.36 : 3 Certified copy of e-mail messages, Tax Invoice, Invoice Cum Waybills.
Ex.P.37 : ICICI Bank Document for the year 2015 of accused firm.
Ex.P.37(a) : Signature of accused No.2 Ex.P.37(b) : Signature of accused No.3. SCCH-2 40 C.C.No.4849/2018 LIST OF WITNESSES EXAMINED BY THE ACCUSED D.W.1 : Sri. Benjamin Paul Daniel.
LIST OF DOCUMENTS MARKED ON BEHALF OF ACCUSED:
Ex.D.1 : Certified copy of Resignation letter dt:20.01.2017 of accused No.5 to accused No.1.
Ex.D.2 : Certified copies of 3 Postal Receipts.
Ex.D.3 : Certified copies of 2 Postal
Acknowledgments.
Ex.D.4 : Certified copy of appointment letter of
accused No.5 dt:10.01.2018.
Ex.D.5 : Certified copy of Register of Firms.
Ex.D.6 : Certified copy of Partnership Settlement
Agreement.
Ex.D.7 : Certified copy of Aadhaar Card of Jesuraja.
Ex.D.8 : Certified copy of Aadhaar Card of Krishna
Shanthi.
Ex.D.9 : Certified copy of Aadhaar Card of Benjamin
Deniel.
Ex.D.10 : Certified copy of Renewed Agreement dt:24.09.2021.
Ex.D.11 : Certified copy of letter issued by the ICICI Bank, Coonoor to accused No.5. SCCH-2 41 C.C.No.4849/2018 Ex.D.12 : Certified copy of Rental Agreement dt:01.02.2018.
Ex.D.13 to : Certified copies of 3 Postal Covers. 15 (Shainey K.M.) VI Addl. Judge and ACMM., Court of Small Causes, Bengaluru.