Bangalore District Court
Tarun Suryakanth Nagamarpalli vs M/S T3-Take Off Transit And Travel Llp on 20 April, 2024
KABC030319412023
Presented on : 19-07-2023
Registered on : 19-07-2023
Decided on : 20-04-2024
Duration : 0 year, 9 months, 1 day
IN THE COURT OF THE XVIII ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
PRESENT : MANJUNATHA.M.S. B.A., LL.B.
XVIII ADDL.C.M.M., Bengaluru.
Dated this the 20 th day of April-2024
C.C.No.18087 of 2023
Complainant : Tarun Suryakanth Nagamarpalli,
S/o.Suryakanth Nagamarpalli,
Aged about 19 years,
R/at No.322, Saraswathi Nivas,
1st Block, 3rd Main, 5th Cross,
Opp. BDA Complex, R.T.Nagar,
Bengaluru-32.
Rep. by SPA Holder
Renuka Suryakanth Nagamarpalli,
W/o.Suryakanth Nagamarpalli,
Aged 45 years,
R/at No.322, Saraswathi Nivas,
1st Block, 3rd Main, 5th Cross,
Opp. BDA Complex, R.T.Nagar,
Bengaluru-32.
(Rep. by Sri.N.M.N, Advocate)
V/s
Accused : 1. M/s.T3-Take Off Transit & Travel LLP
Having its registered office at:
A-H/1, West Gate, Near YMCA Club,
Survey No.835/1+3,
2 Judgment in C.C.No:18087/2023
S.G.Highway, Makaraba,
Ahmedabad, Gujarat-380 051.
Also at: 1A, Ground Floor,
West Gate Building,
A-Block, S.G.Highway,
Ahmedabad, Gujarat-380 051.
Rep. by its Partners/Directors,
1. Dhruv Vallabh Somaiya,
Email ID:[email protected] [email protected]
2. Rahil Yogeshbhai Pujara,
Email ID: [email protected].
[email protected]
[email protected].
3. Yogeshbhai Laxmidas Pujara,
Email ID: [email protected].
2. Dhruv Vallabh Somaiya,
Father name not known,
Major,
Partner/Director,
M/s.T3-Take Off Transit & Travel LLP
A-H/1, West Gate, Near YMCA Club,
Survey No.835/1+3,
S.G.Highway, Makaraba,
Ahmedabad, Gujarat-380 051.
Also at 8th F-810, Iscon Elegance,
Near Avadh-5, S.G.Highway,
Ahmedabad, Gujarat-380 051.
Email ID: [email protected],
[email protected];
dhruv.somaiya@t-3in.
(Rep.by Sri.V.G, Advocate)
3 Judgment in C.C.No:18087/2023
Offence complained : U/Sec.138 of Negotiable Instrument
Act.
Name of the complaint : Sri.Tarun Suryakanth
Nagamarpalli,
Date of commencement of 19.07.2023
evidence
Date of closing evidence 10.04.2024
Opinion of the Judge Accused Nos.1 and 2 found
guilty
(MANJUNATHA.M.S)
XVIII A.C.M.M., Bengaluru.
JUDGMENT
The SPA Holder of complainant has filed this complaint under Section 200 of Code of Criminal Procedure Read with Section 138 of the Negotiable Instruments Act ( in short referred as "N.I. Act") alleging that the accused Nos.1 and 2 have committed the offence punishable under section 138 of NI Act.
02. The sum and substance of the complaint, is as follows ;
The accused No.1 concern is represented by its Partners/Directors. The accused No.1 concern was doing a business as tour organizing of National and International level and have tie up 4 Judgment in C.C.No:18087/2023 with the Emirates Airlines, which is operating the International Flights. The accused No.2 is one of the Partner/Director of accused No.1 concern and he is responsible for day to day affairs of accused No.1 concern. The complainant and his family members have intended to visit the tourist places at London in the 1 st week of April 2020, hence they approached the accused No.2. The accused No.2 had booked the tickets with Emirates Airlines for complainant and his family members to travel from 01.04.2020 to 08.04.2020 via Bengaluru to Dubai and from Dubai to London Heathrow onward ticket on 07.04.2020 to 08.04.2020 from Glasgow to Dubai and from Dubai to Bengaluru in the names of complainant and his family members on 02.03.2020, SPA holder of the complainant had deposited sum of Rs.4,50,000/- towards ticket charges to the bank account of accused No.1 concern. Thereafter, due to Covid-19 Pandemic, the Government of India and Foreign Countries have imposed the lockdown and International flights operation was suspended. The Directorate General of Civil Aviation as per the Hon'ble Apex Court order in WP (C) D No.10966/2020 has directed to all Airlines and their agents to refund the ticket booking amount to the passengers whose flights were cancelled due to lockdown by 5 Judgment in C.C.No:18087/2023 issuing circular dated 07.10.2020. Based on the said direction, the complainant approached the accused No.2 and demanded for refund of the entire ticket booking amount, at that time, the accused No.2 had given evasive answers and not bothered to refund the amount of Rs.4,50,000/- to the complainant and his family members. When the accused No.2 has failed to refund the said amount, having no other option, complainant and his family member were got issued legal notices to the accused through their counsel on 07.10.2022 and 04.11.2022 by way of email ID as well as R.P.A.D, even after said notice the accused have failed refund the said amount. The complainant contacted the accused No.2 and informed that he will initiate legal action against them for violation of directions issued by Government of India vide Circular dated 07.10.2020 and non- compliance of directions issued by Hon'ble Supreme Court dated 01.10.2020. For that, the accused have taken some more time and finally, in the 2nd week of March 2023, towards discharge of their liability the accused have issued four post dated cheques bearing No.074710, 074711, 074712 all the cheques are dated 24.03.2023 and another cheque bearing No.074713 dated 17.03.2023 for sum of Rs.90,000/- each, in all Rs.3,60,000/- all the cheques are drawn on 6 Judgment in C.C.No:18087/2023 Axis Bank, Ahmedabad in favour of complainant, Hema Nagaraj.N, Durgesh Nagaraj.N and Rajeshwari Suryakanth Nagamarpalli, who are the family members of complainant and assured that the said cheques would be honoured on their presentation. Believing the words of accused No.2, the complainant presented the cheque bearing No.074712 dated 24.03.2023 for sum of Rs.90,000/- for encashment through his banker viz., HDFC Bank Ltd., R.T.Nagar Branch, Bengaluru, the same came to be dishonoured and returned with an endorsement dated 27.03.2023 stating "Funds Insufficient" . Immediately, he approached the accused and intimated about dishonour of cheque and demanded for repayment of the cheque amount, but the accused has neglected and failed to repay the cheque amount. Hence, the complainant got issued legal notice to the accused through his counsel on 25.04.2023 and 26.04.2023 by way of R.P.A.D as well as email ID's of accused calling upon them to repay the cheque amount within 15 days from the date of receipt of the legal notice. The legal notice sent through R.P.A.D came to be returned with a shara 'Refused' and the legal notice sent to the email ID of accused was duly served upon accused. Despite, the accused neither paid the cheque amount nor replied to the legal 7 Judgment in C.C.No:18087/2023 notice. Thus, the accused have committed an offence punishable under Section 138 of Negotiable Instruments Act. Hence, filed the present complaint.
03. After filing of complaint, this court has taken cognizance of the offence punishable under section 138 of Negotiable Instrument Act, sworn statement of SPA Holder of complainant was recorded. Being satisfied that there are prima-facie materials to proceed against accused, summons was issued. After appearance, the accused No.2 was enlarged on bail and his plea was recorded under Section 251 of Cr.P.C. The accused No.2 has not pleaded guilty and submitted that he has defense to make.
04. As per the direction of Hon'ble supreme court in "Indian Bank Association V/s Union of India and others reported in (2014) 5 SCC 590, the sworn statement of SPA Holder of complainant has treated as complainant evidence. To prove the case of complainant, the SPA Holder of complainant examined herself as PW1 and got marked documents at Exs.P1 to P23. The accused No.2 has not filed required application under Section 145(2) of Negotiable Instruments Act for cross-examination of PW.1, hence, the cross-
8 Judgment in C.C.No:18087/2023 examination of PW.1 from the side of accused was taken as Nil. The statement of accused as contemplated under Section 313 of Cr.P.C was recorded, the accused denied the incriminating materials appears in the complainant's evidence and submitted no defence evidence on his behalf.
05. Heard arguments of both sides and perused the materials on record.
06. The points that arise for my consideration are as follows;
1. Whether the complainant proves beyond all reasonable doubt that towards discharge of legally recoverable debt, the accused have issued a post dated Ex.P1- cheque bearing No.074712 dated 24.03.2023 for sum of Rs.90,000/- in favour of complainant and the same came to be dishonoured for the reasons 'Funds Insufficient' and even after service of notice, the accused have failed to repay the cheque amount and thereby the accused have committed an offence punishable under Section 138 of N.I.Act?
2. What Order?
07. On appreciation of materials available on record, my findings on the above points are as under:
Point No.1 : In the Affirmative 9 Judgment in C.C.No:18087/2023 Point No.2 : As per final order, for the following:
REASONS
08. POINT No.1: The Complainant has filed this complaint alleging that accused have committed offence under Section 138 of N.I. Act. He pleads and asserts that towards discharge of legally enforceable debt, the accused have issued a cheque in question for an amount of Rs.90,000/-, when the said cheque was presented for encashment before the complainant's banker, the same came to be dishonoured and returned with an endorsement ''Funds Insufficient". Hence, the complainant has issued legal notice within stipulated period, calling upon them to repay the amount covered under the disputed cheque. Inspite of service of said notice, the accused have not paid the cheque amount within 15 days, which gave raise cause of action to file this complaint. In order to prove his case, the SPA Holder of complainant examined herself as PW.1 and she relied upon the documents at Exs.P1 to P23.
09. In this scenario, let me scrutinize the documents relied by the SPA Holder of complainant in order to examine the compliance of statutory requirements envisaged under section 138 of Negotiable 10 Judgment in C.C.No:18087/2023 Instruments Act. Among them, cheque bearing No.074711 issued by the accused for sum of Rs.90,000/- dated 24.03.2023, drawn on Axis Bank Ltd. Ahmedbad is marked as Ex.P1. The signature of accused No.2 is marked as Ex.P1(a). Ex.P2 is the Bank Endorsement issued by HDFC Bank, the contents of Ex.P2 disclose that the cheque bearing No.074712 drawn for Rs.90,000/- was dishonoured for the reasons 'Funds Insufficient'. Ex.P3 is the Legal Notice dated 25.04.2023, the recitals of Ex.P3 disclose that the complainant has issued this notice to the accused through his counsel and by issuing said notice, complainant called upon the accused to repay the cheque amount of Rs.90,000/- within 15 days from the date of receipt of notice. Exs.P4 to P7 are the Postal receipts. Exs.P8 to P11 are the unserved R.P.A.D covers. Ex.P12 is the computer generated copy of intimation letter regarding sending of legal notice to the accused through gmail. Ex.P13 is the Special Power of Attorney dated 09.06.2023 executed by complainant in favour of Renuka Suryakanth Nagamarpalli. Ex.P14 is the computer generated copies of WhatsApp messages. Ex.P15 is the travel agency ticket booking reference letter issued by Emirates. Ex.P16 is the copy of circular dated 07.10.2020 issued by Government of India. Exs.P17 and P18 11 Judgment in C.C.No:18087/2023 are the computer generated copies of gmail messages. Ex.P19 is the computer generated copies of WhatsApp messages. Ex.P20 is the computer generated copy of gmail message. Ex.P21 is the notice dated 04.11.2022 issued by Smt.Renujka Suryakanth Nagamarpalli through her counsel to the accused. Ex.P22 is the computer generated copies of gmails messages and Ex.P23 is the certificate under Section 65B of Indian Evidence Act. This complaint came to be filed on 09.06.2023. A careful scrutiny of the documents relied by the complainant goes to show that, statutory requirements of Section 138 of Negotiable Instruments Act have been complied with and this complaint is filed within time. The SPA Holder of complainant has discharged her initial burden by examining herself as PW.1 and by producing aforesaid documentary evidence. Thus, complainant is entitled to rely on the statutory presumptions enshrined under Sections 118 read with section 139 of N.I. Act. Section 118 reads as here:- "That every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration". Further Sec 139 of the Negotiable Instruments Act provides for 12 Judgment in C.C.No:18087/2023 presumption in favour of a holder. It reads as here: - "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 other liability." Combined reading of above said sections raises a 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. No doubt, the said presumptions of law are rebuttable in nature, to rebut the said presumption the accused neither cross-examined PW.1 nor led any defence evidence. As such, there is no rebuttal evidence on behalf of accused to rebut the presumptions envisage under Sections 118 and 139 of NI Act.
10. When the matter was set down for arguments, at that time, both the parties have filed a joint memo stating that the matter is settled between them for a sum of Rs.1,25,000/- towards full and final settlement of the case. The accused have agreed to pay sum of Rs.1,25,000/- in one lumpsum by way of Online transfer on or before 30.06.2024 and the complainant has agreed to withdraw the Consumer Complaint in No.105/2023 on the file of I Addl. District Consumer Disputes Redressal Commission, Bengaluru, if the 13 Judgment in C.C.No:18087/2023 accused failed to pay the agreed amount on or before 30.06.2024, he can continue the said consumer complaint. The accused by filing said joint memo have admitted that cheque in question was issued for discharge of their liability.
11. Considering the joint memo and submission of learned counsels for complainant and the accused, I deem it proper to grant time to the accused for payment of the fine amount to the complainant. Thus, materials available on record clearly disclose that the complainant has complied with all the ingredients of Section 139 of Negotiable Instrument Act.
12. In view of foregoing discussions, this court is of the opinion that, the complainant has established that the accused have committed an offence punishable under section 138 of Negotiable Instrument Act. The memo filed by the complainant and accused is sufficient to answer point No.1 in the affirmative. Accordingly, Point No.1 answered in the Affirmative.
13. POINT NO.2: In view of the reasons stated and discussed on point No.1, I proceed to pass the following;
14 Judgment in C.C.No:18087/2023 ORDER Acting under Section 255(2) of Criminal Procedure Code, accused Nos.1 and 2 are hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act and accused Nos.1 and 2 are sentenced to pay a fine of Rs.1,25,000/- (Rupees One Lakh and twenty five thousand only). The accused Nos.1 and 2 shall pay the said amount in one lumpsum on or before 30.06.2024. In default to pay aforesaid fine amount, the accused No.2 shall undergo simple imprisonment for 03 (Three) Months.
Acting under Section 357(1)(b) of code of criminal procedure, it is ordered that, the above said Rs.1,25,000/-(Rupees One Lakh and twenty five thousand only) therefrom shall be paid to the complainant as a compensation.
Office is directed to supply free copy of the judgment to the accused.
(Directly dictated to the Stenographer on computer, typed by him, corrected by me and then Judgment signed and pronounced in the open court on this the 20 th day of April - 2024).
(MANJUNATHA.M.S) XVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
15 Judgment in C.C.No:18087/2023 ANNEXURE List of Witnesses examined on behalf of Complainant:
PW-1 : Renuka Suryakanth Nagamarpalli List of Exhibits marked on behalf of Complainant:
Ex.P1 : Original Cheque
Ex.P1(a) : Signature of accused No.2
Ex.P2 : Bank endorsement
Ex.P3 : Office copy of legal notice
Exs.P4 to P7 : Postal receipts
Exs.P8 to P11 : Unserved R.P.A.D covers
Ex.P12 : Computer generated copy of gmail
message
Ex.P13 : Special Power of Attorney
Ex.P14 : Computer generated copies of Whatsapp
messages.
Ex.P15 : Travel agency ticket booking reference
Letter
Ex.P16 : Copy of circular dated 07.10.2020
Exs.P17 & P18 : Computer generated copy of gmail
messages
Ex.P19 : Computer generated copies of Whatsapp
messages.
Ex.P20 : Computer generated copy of gmail
message
Ex.P21 : Notice dated 04.11.202
Ex.P22 : Computer generated copy of gmail
message
Ex.P23 : Certificate u/S 65B of Indian Evidence
Act.
List of Witnesses examined on behalf of the defence:
- None -
16 Judgment in C.C.No:18087/2023 List of Exhibits marked on behalf of defence:
- Nil -
XVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
17 Judgment in C.C.No:18087/2023 20.04.2024.
Comp -
Accd -
For Judgment Judgment pronounced in the open court vide separate order.
***** ORDER Acting under Section 255(2) of Criminal Procedure Code, accused Nos.1 and 2 are hereby convicted for the offence punishable under Section 138 of Negotiable Instrument Act and accused Nos.1 and 2 are sentenced to pay a fine of Rs.1,25,000/- (Rupees One Lakh and twenty five thousand only). The accused Nos.1 and 2 shall pay the said amount in one lumpsum on or before 30.06.2024. In default to pay aforesaid fine amount, the accused No.2 shall undergo simple imprisonment for 03 (Three) Months.
Acting under Section 357(1)(b) of code of criminal procedure, it is ordered that, the above said Rs.1,25,000/-(Rupees One Lakh and twenty five thousand only) therefrom shall be paid to the complainant as a compensation.
Office is directed to supply free copy of the judgment to the accused.
XVIII Addl. Chief Metropolitan Magistrate, Bengaluru.