Bangalore District Court
1. Techsoft Technologies vs Vishwanath. S on 16 January, 2021
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE; BANGALORE CITY
PRESENT
SRI. SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 16th day of January, 2021
CRL.A.No.1063/2019
PETITIONER/S : 1. TECHSOFT TECHNOLOGIES
INDIA PVT., LTD.,
No.59, Manirathna Complex,
11th Cross, S.P. Extension,
Malleshwaram,
Bengaluru - 560 003.
Rep. by its Business Head,
Mr. Gopinath. R.D.
[Accused No.1]
2. MR. GOPINATH. R.D.
s/o Dayalan,
Aged about 41 years,
Business Head,
Techsoft Technologies India Pvt. Ltd.,
No.59, Manirathna Complex,
11th Cross, S.P. Extension,
Malleshwaram,
Bengaluru - 560 003.
[Accused No.2]
(By Sri. DPP., Advocate)
V/s.
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Crl.A.No.1063/2019
RESPONDENT/S: VISHWANATH. S,
s/o late Sripathirao,
Aged about 41 years,
R/at No.3, Shivalaya, 2nd Cross,
7th Main, Saraswathipuram,
Gelayarabalaga,
Bengaluru - 560 076.
(By Sri. SV., Advocate)
JUDGMENT
This appeal is filed by the appellant under Section 374(3) of Cr.P.C., seeking to set aside the Judgment of conviction and sentence passed by the XVI Additional Chief Metropolitan Magistrate, Bengaluru, in C.C. No.9672/2017 dated 04.04.2019.
2. The appellant is the accused and the respondent is the complainant before the trial Court, for the sake of convenience parties are referred by their ranks before the trial Court.
3. The brief facts of the case are as follows: The complainant's case is that the accused is the Managing Director of Software Company named Techsoft Technologies India Pvt. Ltd. The complainant is qualified and experienced software professional, having expertise in the field of Database Technologies. In the month of March, 2016 the accused approached the complainant with an offer to join the team of Techsoft Technologies as a 'Technical Architect' in order to lead the team in the development of its products with particular focus on 'Call Billing Software' used for monitoring and curtailing the Telecom expenses 3 Crl.A.No.1063/2019 in multi telephone environment. The accused informed the complainant that the role needed a person with 15 years experience in the IT Industry mainly in the Database Technologies and that the responsibilities included the complete designing and development of the products which inter alia included a) designing the Front End Frame work, b) designing of database scheme mainly MS SQL server, MYSQL, c) writing embedded SQLs and stored procedures for accessing the data, d) interacting with existing clients and addressing the concerns with existing software of Techsoft Technologies, e) populating master repository table containing complete set of worldwide STD/ISD/ mobile operates telephone codes and f) designing and development of various reports required for customers on regular basis.
4. It is his further case that after discussion and deliberation the complainant accepted the offer of the accused to work for Techsoft Technologies. Accordingly, the complainant's employment was confirmed in terms of the appointment letter dated 02.03.2016 whereby he was appointed with effect from the date of joining i.e., 07.03.2016 for a monthly gross remuneration (after employer's deductions) of Rs.1,27,942/ payable every month on the first working day, and the complainant joined Techsoft Technologies on 07.03.2016 as a Technical Architect and was handling the project assigned to him i.e., designing and development of database, stored procedure as well as visiting clients and engaging the team in delegating the day to day 4 Crl.A.No.1063/2019 development activities towards the product. However, despite the diligent work put in by him from 07.03.2016 onwards the accused failed to pay the salary to him for two months i.e., March 2016 and April 2016, citing some or the other reason.
5. It is further stated that on 01.05.2016 negotiations were carried out between him and the accused with regard to the nonpayment of the salary to the employees of the company for the months of March and April 2016. At the time of these negotiations the accused assured him that the salary arrears would be cleared for the months of March 2016 and April 2016 immediately. Further, in order to reassure the complainant of his future salary for the coming months, the accused issued a post dated cheque bearing No.000229 dated 18.05.2016 for a sum of Rs.1,25,000/ drawn on HDFC Bank Ltd., Sadashivanagara Branch, Bengaluru in his favour, in lieu of the payment of salary for the month of May 2016. Thereafter, on 26.05.2016 another round of negotiations were held between the accused and the complainant and other employees of the company in the presence of two other directors and well wishers of the company, when further assurance to make payment of overdue salary was given by the accused following which an amount of Rs.2,21,704/ was remitted to the complainant's account on 01.06.2016 in lieu of salary for the months of March 2016 and April 2016.
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6. It is further stated that the complainant continued to work for Techsoft Technologies throughout the months of May & June 2016 the accused requested him not to deposit the cheque which was given in lieu of payment for salary for May 2016 in view of certain financial difficulties he was allegedly facing and communicated that the outstanding salary would be paid forthwith but, no payment was made by the accused towards salary of May 2016 and further he worked for the month of June 2016 and still did not receive any payment of salary. After patiently waiting and negotiating for many days the complainant being aggrieved by non payment of salary by the accused tendered his resignation on 07.07.2016 and thereby resigned from his job as Technical Architect at Techsoft Technologies and notified the accused that he would stop working from 15.07.2016.
7. It is further stated that in view of the foregoing it is clear that the accused is liable to pay him salary for the months of May and June 2016 and 15 days of July 2016 in all an amount of Rs.2,24,366/. Even after July 2016, the accused repeatedly assured him by email, SMS and telephonic conversations that all dues of outstanding salary would be settled at the earliest. However, no such action was taken by the accused. It is further stated that the cheque was issued by the accused towards discharge of their liability as an employee to pay the salary of his employee - complainant with a specific assurance that the said cheque would be honoured upon presentation. Believing the words of the 6 Crl.A.No.1063/2019 accused, the complainant represented the said cheque for encashment in Karnataka Bank Ltd., and the same was returned with an endorsement 'payment stopped by drawer' on 18.08.2016. Hence, the complainant having left with no option got issued legal notice to the accused on 16.09.2016 through RPAD calling upon the accused to pay the cheque amount within 15 days from the date of receipt of notice and the said notice was duly served on the accused, but he has not repaid the cheque amount or replied the said notice. Hence, the complainant filed the complaint before the trial court.
8. The trial court took cognizance of offence and ordered for issuance of summons to accused. The accused appeared through her counsel and defended the case. The trial court recorded the plea of accusation. The accused pleaded not guilty of the accusation levelled against her and claimed to be tried. Hence, the case was posted for trial.
9. To prove the case, the complainant examined himself as PW1 and got marked the documents as Exs.P1 to 9 and one more witness examined as PW2 and Ex.P10 to 16 are marked. After completion of the evidence, the trial court examined the accused as required under Section 313 of Cr.P.C. The accused denied the incriminating evidence and he was examined as DW1 and not marked any document. After hearing both the side, the trial court passed the judgment, convicting the accused and sentenced her to pay a fine of Rs.1,50,000/.
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10. Being aggrieved by the judgment passed by the trial court, the appellant herein has filed the present appeal challenging the impugned judgment on various grounds.
11. After presentation of the appeal, in response to the notice issued to him, the complainant appeared through his counsel. The trial court records were secured. After receipt of the TCR, the appeal was posted for arguments.
12. I have heard the argument of both the side. I have gone through the trial court records, the impugned judgment of conviction and the grounds urged in the appeal memo, and both appellant and respondent have submitted their written argument. Now the points that arise for my consideration.
1. Whether the impugned judgment of conviction is illegal and erroneous?
2. Whether the appellant has made out any grounds to interfere with the impugned judgment of conviction and sentence?
3. What Order?
13. My findings on the above points are. Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per the final order for the following 8 Crl.A.No.1063/2019 REASONS
14. Points No.1 & 2: Since these two points are interconnected with each other, for the sake of convenience, I have taken these points together for discussion and answer.
15. I have carefully gone through the contents of the appeal memo, the trial court records and the impugned judgment.
16. It is the case of the complainant that he was worked under the accused company as 'Technical Architect' and accused issued the cheuqe in question for payment of salary and on presentation the said cheque came to be dishonored. It is his further case that after complying mandatory procedure provided under Setion 138 of the Negotiable Instrument Act, he has fild the complaint before the trial Court.
17. In order to prove that the cheque in question was issued towards discharge of legally recoverable debt or liability, the complainant was examined himself as PW1 and got marked the documents at Ex.P1 to 9. Ex.P1 is the cheque, Ex.P1(a) is the signature of the accused, Ex.P2 is the bank memo, Ex.P3 is the office copy of the legal notice, Ex.P4 is the postal acknowledgement, Ex.P5 is the statement of accounts, Ex.P6 is the appointment letter dated 02.03.2016 and Ex.P7 is the emails dated 12.07.2016, 26.10.2016 and 13.07.2016 and one more witness examined as PW2 and Ex.P10 to 16 are marked. Ex.P10 9 Crl.A.No.1063/2019 is t he certified copy of the cheque bearing No.000228 dated 18.05.2016 issued to PW2 by the accused marked as Ex.P1 in CC No.56102/2016, Ex.P11 is the certified copy of the cheque return memo dated 16.08.2016 issued to PW2 with respect to the cheque bearing No.000228 marked as Ex.P2 in C.C.No.56102/2016, Ex.P12 is the certified copy of the complaint dated 21.09.2016 filed by PW2 in PCR No.54715/2016 before the court of 14 th ACMM, May Hall, Bengaluru, Ex.P13 & 14 are the certified copies of the sworn statement affidavit and the crossexamination of PW2 as PW1 in CC No.56102/2016, Ex.P15 is the joint memo dated 03.07.2017 filed in CC No.56102/2016 and Ex.P16 is the certified copy of the order sheet in CC No.56102/2016.
18. On careful perusal of the oral and documentary evidence on record and keeping in view Section 139 of Negotiable Instrument Act r/w Section 118 Negotiable Instrument Act, I hold that the trial court has rightly hold that there is a presumption in favor of the complainant that the cheque was issued towards discharge of legally enforceable liability the complainant has discharged his initial burden. Hence, the presumption goes in favor of the complainant.
19. The advocate for appellant has contended in the written argument that the cheque in question was issued to the complainant towards security and the complainant has misused the same. The complainant has come up with false case saying that he has no source of income. By relying on Ex.P5 he has 10 Crl.A.No.1063/2019 stated that his account has been credited Rs.1,00,000/ on 05.05.2016. It is his further contention that the complainant himself has resigned from the job and after taking the complete salary he has resigned from the job. Hence, the cheque in question is not issued towards his arrears of salary and in the registration letter dated 13.07.2016 show that there is no salary due to him. It is further contention of the advocate for appellant that the cheque bears date as 01.05.2016, 01.05.2016 was the Sunday and it was a labour day it was government holiday. When it is so he has falsely come up with the case that the cheque is issued on 01.05.2016. It is his further contention that the accused is a Managing Director to the company has not been made party to the proceedings. He has contended that the cheque in question was not issued towards discharge of any liability and the case of the complainant is false. With these contentions, he has sought for allowing the appeal.
20. Now the question is whether these defenses are probable defense and same are sufficient to rebut the presumption available to the complainant.
21. However, the contentions raised by the counsel for accused have to be appreciated taking into consideration the facts that are required to be proved for holding the drawer of dishonored of cheque guilty. The following facts required to be proved successfully to prosecute the drawer for an offence under Section 138 of the Act.
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Crl.A.No.1063/2019
a) That the cheque was drawn for
payment of money to another person for
discharge of debt of liability and the cheque was dishonored;
b) That the cheque was presented to the
bank within a prescribed period
c) That the payee made a demand for
the payment by giving notice in writing to the drawer within a stipulated period; and
d) That the drawer failed to make the payment within 15 days of the notice.
22. In the case in hand nowhere in the entire proceedings the accused has disputed the issuance of cheque, the cheque belongs to the company's account and signature on the cheque is also admitted. The chequeEx.P1 has been drawn in favour of the complainant and it bears the signature of the authorized person of the company.
23. The contention of the advocate for appellant that the cheque in question issued towards security is not acceptable. Because, it is admitted that the complainant was an employee in the accused company and it was issued towards security. This issuance of cheque towards security is not a probable defense. More over, there is no evidence to show that the cheque was issued to the employee in advance. Hence, this defense will not come to the aid of the complainant. Further, he has contended that the complainant himself has tendered resignation to his job.
12Crl.A.No.1063/2019 The complainant himself stated that he has resigned to his job and after resignation, towards his arrears of salary, the accused company has issued him a cheque. It is specific case of the complainant that the cheque in question is issued in his favour towards payment of arrears of salary and there is no rebuttal evidence with regard to this contention of the accused. More over, this ground has been urged in this appeal, this ground is also not available to the accused.
24. Another defense that has been taken by the accused is that the cheque - Ex.P1 bears the date 01.05.2016 which is a general holiday and it is not possible to mention the date on which the day was general holiday. That being a date which is general holiday and there is no bar, and these defenses are raised during the appeal stage and absolutely there is no evidence with regard to these contentions before the trial court. Only because, the cheque bears the date which was a general holiday it cannot be held that the cheque was not issued at all and it is clearly admitted that the cheque belongs to accused company and it appears the signature of the authorized person. All these defenses are constitute a probable defense and the same are not sufficient to rebut the presumption available to the complainant.
25. More so, the accused herein is not disputed the issuance of, and signature on the cheque. When it is so it has to be held that the complainant has proved his case. In this regard, it is necessary to refer the judgment passed by the Hon'ble Apex 13 Crl.A.No.1063/2019 Court in Rangappa Vs. Sri Mohan reported in AIR 2010 SC 1898 wherein the Hon'ble Apex court has held that 'the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. This is of course in the nature of a rebuttable 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, there can be no doubt that there is an initial presumption which favours the complainant.
Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof.
In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive 14 Crl.A.No.1063/2019 burden. Keeping this in view, it is a settled position that 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 defense which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defense and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
26. In the light of the above mentioned observation, I am of the opinion that when the accused has admitted signature at Ex.P1 the presumption under Sections 118 and 139 of the Negotiable Instrument Act, would goes in favour of the complainant the defense raised by the accused does not constitute a probable defense since there are no supportive evidence and other materials available on record to believe his version. Therefore, I am of the opinion that the trial court has rightly appreciated and evaluated the evidence of PW1 in proper perspective. As such there is no illegality or error committed by the trial court in this regard, and the impugned judgment passed by the trial court does not call for any interference by this court. Accordingly, I answer points No.1 and 2 in the 'Negative.'
27. Point No.3: In view of my findings on point No.1 to 3, I proceed to pass the following. 15 Crl.A.No.1063/2019 ORDER The appeal filed by appellant under Section 374(3) of Code of Criminal Procedure is hereby dismissed.
The impugned judgment of conviction and sentence passed by the XVI Additional Chief Metropolitan Magistrate Court, Bengaluru, in CC.No.9672/2017 dated 04.04.2019 is hereby confirmed.
Send a copy of this judgment to the trial Court along with TCR forthwith.
(Directly dictated to the stenographer on computer, typed by her, corrected and then pronounced by me in the Open Court on this 16th day of January, 2021) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.