Bangalore District Court
Smt. V. Ammani vs Proprietor Of on 3 January, 2022
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 3rd day of January, 2022.
Crl. Appeal. No.25174/2020
Appellant/ Smt. V. Ammani,
Accused:- Proprietor of
M/s. Shiva Vishnu Agency,
No.53/1, K.K. Thalai,
Parthasarthi Nagar,
Siyabadam 3rd Street Manali,
Chennai - 600051.
[By Sri. Karigowda -Adv]
V/s
Respondent/ M/s. Britannia Industries Limited,
Complainant: A Company incorporated under
the Companies Act, 1913,
Registered Office at No.5/1-A,
Hungerford Street,
Kolkata - 700 017.
Having Executive Office at
Prestige Shantiniketan,
The Business Precinct,
Tower C, 16th and 17th Floors,
Whitefield Main Road,
2 Crl.Appeal.No.25174/2020
Mahadevapura Post,
Bengaluru - 560 048.
(By Kapil Dixit & Co., -Adv.)
JUDGMENT
This Appeal is preferred by the Appellant/ Accused U/Sec. 374(3) of Cr.P.C, being aggrieved by the Judgment of conviction passed by the XIV Addl. CMM, Mayohall Unit, Bangalore in CC.No.52757 of 2019, dtd. 12.10.2020, convicting the Appellant for the offence punishable U/Sec. 138 of NI Act, thereby sentencing to pay fine of Rs.14,80,000/-. Indefault to undergo Simple Imprisonment for a period of 12 months. Further directed to pay an amount of Rs.14,75,000/-, out of the fine amount to the Complainant, as compensation U/Sec 357(1) of CrPC,.
2. The Brief facts leading to filing of the present appeal are:
The present Respondent filed a Complaint U/Sec. 200 of Cr.P.C. against the present Appellant, alleging that, the Appellant is a Proprietary firm and its authorized whole-seller, under the agreement 3 Crl.Appeal.No.25174/2020 entered into inbetween them. Infurtherance, it has purchased the products stipulated in the agreement from it, by placing purchase orders. It has supplied the products and have raised the invoices against such supply. In all the Appellant was liable to pay an amount of Rs.33,58,317.07/-. Inorder to clear the said liability, the Appellant has issued five Cheques viz., a) Cheque bearing No.000112 dtd.09.01.2019 for Rs.14,17,294.30, b) Cheque bearing No.000113 dtd.09.01.2019 for Rs.3,51,335.65/-, c) Cheque bearing No.000114 dtd.09.01.2019 for Rs.7,96,235.34, d) Cheque bearing No.000116 dtd.13.01.2019 for Rs.2,77,945.04/- and e) Cheque bearing No.000117 dtd.14.01.2019 for Rs.5,15,506.74/- all drawn on City Union Bank, No.60, Parthasarthi Nagar, Siyabadam 3 rd Street, Chennai. On receipt of the said Cheques the same were presented for there encashment, through its banker HDFC Bank Ltd., Richmond Road, Bengaluru. But the said Cheques have returned unencashed with an endorsement 'Funds Insufficient' on 12.02.2019. Thereafter it got issued a statutory demand notice, through its counsel on 15.02.2019, calling upon the Respondent to pay an 4 Crl.Appeal.No.25174/2020 amount of Rs.33,58,317.07/-, the amount covered under the said five Cheques. The notice was delivered to the Respondent on 22.03.2019, but the same was returned with an endorsement 'Unclaimed' on 04.03.2019. One of the legal notice sent to Respondent was delivered and the same was replied by it on 01.03.2019, through its counsel contending that, it had sent few claims which were required to be adjusted towards the dues with that of the outstanding balance. The claim amounts raised by the Accused were then reconciled with its statement of the accounts and it was found that, the Respondent is still due to the tune of Rs.12,72,238/-.
On completion of the stipulated period required under the statute, the Respondent was constrained to file the present Complaint against the Appellant/Accused for the offence punishable U/Sec.138 of N.I.Act.
3. On being satisfied the Trial Court has issued summons U/Sec.204 of Cr.P.C., to the Respondent / Accused on 12.04.2019. The Appellant appeared before the Trial Court through her counsel on 11.09.2019 and she was enlarged on bail. Plea/ 5 Crl.Appeal.No.25174/2020 Substance of Accusation of the Appellant/ Accused was recorded by the Trial Court on 21.09.2019, wherein the Appellant has pleaded not guilty and claims to be tried.
4. The Complainant inorder to prove its case got examined its authorized representative as P.W.1 and got marked 34-documents as Ex.P.1 to Ex.P.34. PW1 was cross examined on behalf of the Respondent/ Accused on 03.12.2019 and 11.12.2019.
Statement of the Accused U/Sec. 313 of Cr.P.C., was recorded by the Trial Court on 20.02.2020. Appellant/Accused did not lead her Defence Evidence.
On hearing both the sides, the Trial Court has passed the Judgment, convicting the Appellant/ Accused for the offence punishable U/Sec. 138 of N.I. Act on 12.10.2020. Hence, the Appellant is before this Court, being aggrieved by the said Judgment of conviction.
6 Crl.Appeal.No.25174/20205. The Appellant has preferred this appeal alongwith an application at IA No.2/2020 U/Sec.5 of Limitation Act, praying to condone the delay of 9 days, in preferring this appeal. On preferring the appeal by the Appellant/Accused, this Court has suspended the sentence under appeal, for a period of three months, initially on 07.12.2020. Notice of the Appeal memo and I.A.Nos.1/2020 and 2/2020 was issued to the Respondent and TCR were called-for. Respondent set-in its appearance on 02.03.2021. TCR were secured on 01.02.2021.
6. Heard the Arguments of the Learned Counsels for the Appellant/Accused and the Respondent/ Complaint on 01.12.2021.
7. The Appellant has preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has gravelly erred in convicting the Appellant for the offence punishable U/Sec. 138 of N.I. Act, which is manifestly erroneous and opposed to the facts and circumstances of the case;7 Crl.Appeal.No.25174/2020
b) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record, in a proper and perspective manner;
c) The Trial Court has failed to consider that, the Respondent has failed to prove that, it has delivered the goods worth Rs.33,58,317.07/-, as claimed;
d) The Trial Court has failed to consider that the Cheques-ExP20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28 were given by the Accused to the Complainant at the time of entering into the distribution agreement, and not towards repayment of any amount under the invoices Ex.P4, Ex.P6, Ex.P8, Ex.P10, Ex.P11, Ex.P13 and Ex.P15, as contended by the Complainant;
e) The Trial Court has failed to consider that, the Accused has returned the goods to the Complainant and the Complainant has failed to reconcile the statement of accounts inbetween them;
f) The Trial Court has failed to consider that, on adjustment of the returned goods towards the outstanding liability, the Accused will not be liable for repayment of any dues;
g) The Trial Court has failed to consider that, the Complainant has filed a common Complaint withregard to five Cheques, which is in violation Sec.219 of Cr.PC, which says that, morethan three cause of action cannot be taken up under one Complaint; and
h) The Trial Court ought to have acquitted the Accused for the offence punishable U/Sec.138 of NI 8 Crl.Appeal.No.25174/2020 Act, considering the defence of the Accused, as a probable defence for issuance of the Cheques-ExP20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28.
Hence, prayed to allow the said appeal and setaside the Judgment of Conviction passed by the Trial Court.
8. Following points arise for my consideration;
1. Whether the Appellants show sufficient cause to condone the delay of 9 days, in preferring this appeal?
2. Whether the Respondent/ Complainant is entitle for the benefit of presumption available U/Sec. 139 of N.I. Act?
3. Whether the Appellant/ Accused proves on the basis of preponderance of probabilities that, she had issued the Cheques-ExP20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28, as post dated Cheques under the distribution agreement i.e., much prior to raising of invoices, under Ex.P4, Ex.P6, Ex.P8, Ex.P10, Ex.P11, Ex.P13 and Ex.P15 ?
4. Whether the Appellant/ Accused proves on the basis of preponderance of probabilities that, she had returned the goods to the 9 Crl.Appeal.No.25174/2020 Complainant for which the Complainant has failed to reconcile the statement of accounts inbetween them?
5. Whether the Appellant/ Accused shows that, filing of the present Complaint is in violation of provision of Sec.219 of Cr.PC, as the Complaint is filed by the Complainant, inrespect of five Cheques?
6. Whether the Trial Court is right in holding that, the Appellant/Accused has failed to rebut the presumption available U/Sec. 139 of N.I. Act?
7. Whether the Appellant/ Accused shows that the Order of Conviction and Sentence recorded by the Trial Court in CC.No.52757 of 2019, dtd.12.10.2020, deserves to be setaside, and thereby call for the interference of this Court?
8. What Order?
9. My finding on the above points are as under:
Point No.1 : Does not arise at all; Point No.2 : In the Affirmative;
Point No.3 : In the Negative;
Point No.4 : In the Negative;10 Crl.Appeal.No.25174/2020
Point No.5 : In the Negative;
Point No.6 : In the Affirmative;
Point No.7 : In the Negative;
Point No.8 : As per final order for
the following :
REASONS
10. The rank of parties will be referred to, as they were before the Trial Court.
11. Point No.1:
I.A.No.1/2020 is filed by the Appellant U/Sec.5 of Limitation Act, praying to condone the delay of 9- days, in preferring this appeal. For the reasons sworn to by Appellant in the affidavit annexed to the said application.
The main contention taken up by the Appellant that, due to COVID-19 pandemic she could not prefer the appeal, in time.
On careful perusal of the certified copy of the Judgment of the Trial Court filed by the Appellant alongwith the appeal memo, it is seen that, the judgment is passed by the Trial Court, in the absence of the Accused due to prevailing of COVID-19 situation on 12.10.2020; application for obtaining certified copy of the said Judgment was filed on 11 Crl.Appeal.No.25174/2020 20.10.2020; the Appellant has received the certified copy of the Judgment on 11.11.2020; and the present appeal is preferred by the Appellant on 01.12.2020.
The application for obtaining the certified copy of the Judgment is filed after 8 days of passing of the Judgment. Appellant has preferred this appeal after a period of 20 days from obtaining the certified copy of the Judgment. So the total time consumed by the Appellant in the preferring the appeal from the date of the Judgment will be 28 days (20 days + 8 days).
Infact, there is no any delay in preferring the appeal by the Appellant.
Having observed so, Point No.1 is answered as does not arise at all.
12. Point No.1:-
The Complainant has filed a Complaint U/Sec. 200 of Cr.P.C. alleging that, the Accused has the issued the Cheques-ExP20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28 towards the repayment of the invoice amount, under Ex.P3 to Ex.P19. The said cheques were presented for there encashment through its banker, but the same have been returned 12 Crl.Appeal.No.25174/2020 unencashed with an endorsement "Funds Insufficient", as per Ex.P21, Ex.P23, Ex.P25, Ex.P27 and Ex.P29. Thereafter it got issued a Legal Notice-
ExP30 through its counsel on 15.02.2019 to the Accused by RPAD, as per the postal receipts-Ex.P31 and Ex.P32. One of the said notice has returned with an endorsement 'Unclaimed' and another notice has been served upon the Accused. The Accused has replied the said notice, as per Reply Notice, as per ExP34.
13. On the basis of the documents produced by the Complainant and the preliminary evidence led by the Complainant, the Trial Court has issued summons to the Accused U/Sec.204 of Cr.P.C., on 12.04.2019. Perused the said orders, do not find any error in the said order of the Trial Court.
14. The Accused has appeared before the Trial Court on 11.09.2019 and she was enlarged on bail. Substance of Accusation/Plea was recorded, by the Trail Court on 21.09.2019. I have gone through the said Plea/Statement of Accusation recorded by 13 Crl.Appeal.No.25174/2020 the Trial Court. I do not find any error or irregularity in it.
15. Coming to the ocular evidence, on the point of issuance of the Cheques-ExP20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28, more specifically, cross- examination of PW.1, at Page No.12, Line Nos.9 to 12, which reads as under;
".... I do not known whether Ex.P20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28 were obtained by the Complaint company from the Accused at the time of execution of the distribution agreement. ....".
As per this evidence, suggestion is made to PW1 on behalf of the Accused that, the the Cheques Ex.P20, Ex.22, Ex.P24, Ex.P26 and Ex.P28 were obtained by the Complainant from the Accused at the time of execution of the Distribution Agreement. As per this suggestion the Accused admits that, the Cheques -Ex.P20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28 belonged to the Accused proprietary firm.
So also, the Accused has not denied the signatures on the said Cheques- Ex.P20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28.
14 Crl.Appeal.No.25174/202015.01. As per the above ocular evidence, more specifically, the admission given by way of suggestion, inrespect of the Cheques- Ex.P20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28, it can be said that, the Accused has admitted that the Cheques- Ex.P20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28 belongs to her.
16. Thus the Complainant has proved the initial burden casted upon it U/Sec.138 of N.I. Act, to show that, the Cheques-Ex.P20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28 belong to Accused and the signature on the said Cheques, is that of the Accused.
17. On viewing the amount of oral evidence with the documentary evidence i.e., Ex.P.1 to Ex.P.34, which will suffice the Complainant, to have benefit of presumption available U/Sec.138, 139 of N.I. Act.
17.01. As per the trite principle of law, dealing with the presumption U/Sec.138 & 139 of N.I.Act and as per the dictum laid down by the 15 Crl.Appeal.No.25174/2020 Hon'ble Apex Court in the case of K. Subramani V/s K. Damodara Naidu, reported in 2014 (12) SCALE 677, as well as in the case reported in (2010) 11 SCC 441, wherein it is held that, "Presumption U/Sec.139 of N.I.Act accrues to the benefit of the Complainant, unless the Accused rebut that presumption".
17.02. Now it is for the Accused to rebut the said presumption, available to the Complainant U/Sec.139 of N.I.Act.
Hence, I answer POINT NO.2 IN THE
AFFIRMATIVE.
18. POINT NO.3:
The first defence takenup by the Accused is that, the Complainant has obtained post dated Cheques from her, under the Distribution Agreement and the same has been misused by the Complainant. This stand of the Accused can be seen as per the cross-examination of PW.1, at Page No.12, Line Nos.9 to 12, which reads as under:-
".... I do not known whether Ex.P20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28 were obtained by the Complaint company from 16 Crl.Appeal.No.25174/2020 the Accused at the time of execution of the distribution agreement.....".
18.01. Further the Learned Counsel for the Appellant would contend that, the contents of the Cheques have filled by the officials of the Complainant after raising of invoices.
18.02. Coming to the ocular evidence, on this point, more specifically,
a) cross-examination of PW.1, at Page No.12, Line Nos.12 to 15, which reads as under:-
".... It is true to say that, the contents of Ex.P20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28- Cheques have been filled by the officials of the Complainant company after raising of invoices."
b) cross-examination of PW.1, at Page No.13, Para No.2, Line No.3 to Page No.14, Line No.1, which reads as under:-
".... The Complainant company has obtained blank signed Cheques as per Ex.P20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28 before raising of invoices as per Ex.P4 to Ex.P19 and after delivery of goods the officials of the Complainant company filled up the amount in the Cheque as per the invoice raised."17 Crl.Appeal.No.25174/2020
As per these portions of evidence, PW.1 admits that, Cheques- Ex.P20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28 were filled up by the officials of the Complaint company on raising of invoices.
18.03. The Accused admits that, she has issued a reply to the notice issued by the Complainant U/Sec.138 of NI Act, as per Ex.P34.
On careful perusal of Ex.P34, more specifically, at Page No.1, Para No.2, which reads as under:-
"Your notice dtd.15.02.2019 received on 22.12.2019 under Section 138(6) of the NI Act issued to my client M/s Shivavishnu Agency, represented by its Proprietor, at No.53/1 K. K Thazhai, Parthasarathy Nagar, Siybadam 3 rd Street, Manali, Chennai-600 051, is placed before me with instructions to send this reply.
It is true that M/s Siva Vishnu Agency is appointed as a authorized wholesale dealer of the products of M/s Britania Industries Limited. Accordingly the dealer placed purchase orders for supply of products of the company and the company raised invoices and for the invoices then and there the cheques were obtained by the company and it is found that some of the cheque amounts were not realized by the Britannia Company."
As per this the Accused admits that, her proprietary concern was appointed as the authorized 18 Crl.Appeal.No.25174/2020 wholesale dealer by the Complainant company. She has placed purchase orders for supply of the products and accordingly the company has raised invoices and for the invoices then and there the Cheques were obtained by the company and further it is found that, some of the Cheque amounts were not realized by the Complainant company. So as per this reply of the Accused, the Accused admits that, the Cheques were obtained for the invoices raised for supply of the products.
18.04. Inview of such reply given by the Accused, it is crystal clear that the Accused has admitted that, the Cheques were obtained by the company for the invoices raised for purchase of the goods from the said company. So under such circumstances, the defence taken up by the Accused that, the Cheques were issued post dated by her under the Distribution Agreement, cannot be believed.
Hence, I answer POINT NO.3 IN THE
NEGATIVE.
19 Crl.Appeal.No.25174/2020
19. POINT NO.4:-
The second defence taken up by the Accused that, she has returned the goods to the Complainant company and the Complainant has failed to make adjustments withregard to returned of goods, out of the outstanding amount. This type of defence can be seen, as per the
a) cross-examination of PW.1, at Page No.14, Line Nos.1 to 16, which reads as under:-
"I do not know whether one UKD transport was engaged by complainant company for transportation of goods to its distributors. I do not know whether vehicle bearing No. TN 18 AH 8915 driven by one Ramakrishna took the goods back from the accused firm to complainant company. I do not know whether vehicle bearing No. TN 22 CH 6782 driven by One Sathish took back goods from the accused firm to the complainant company. I do not know whether those 2 vehicles took back the goods described in Ex.P-4 to Ex.P-19 from accused firm to complainant company. I do not know whether the complainant company acknowledged return of such goods from the accused firm. I have personal knowledge regarding raising Ex.P-4 to Ex.P-19, but I have no personal knowledge regarding return of said goods 20 Crl.Appeal.No.25174/2020 under Ex.P-4 to Ex.P-19 from the accused firm."
19.01. Percontra, firstly, the Complainant contends that, it has not taken back the goods supplied to the Accused under Ex.P4 to Ex.P19, which can be seen as per the cross-examination of PW.1, at Page No.15, Line Nos.7 to 11, which reads as under:-
".... It is false to say that all the goods under Ex.P-4 to Ex.P-19 were taken back by the complainant company from the accused and as such the accused is not liable to pay Rs. 12,72,238/- to the complainant company."
Secondly, the Complainant contends that, initially it had issued notice U/Sec.138 of NI Act, as per Ex.P30 calling upon the Accused to pay an amount of Rs.33,58,317.07/-, but on receipt of the reply notice-ExP34, the accounts of the Accused have been reconciled and the present Complaint is restricted towards payment of the balance amount of Rs.12,72,238/-.
21 Crl.Appeal.No.25174/202019.02. As per the contents of the reply notice-Ex.P34, the Accused has contended at Page No.2, Para No.2, as under:-
"If those claims as made by my clinets are adjusted towards the liability of my client there should be very less amount due. In such circumstances it is just and necessary for my client to verify the statement of accounts of the adjustments entitled by my client. On behalf of my client I here by request to you to send the statement of accounts about the entitlements of claims made by my client. Even after adjustments of the aforesaid claims towards the dues to M/s Britannia Industries then my client undertakes to settle the dues if any found."
As per this contentions of the Accused in the reply notice, wherein she has contended that, on adjustment of the dues mentioned by the Accused in the said reply, towards the liability, there should be very less amount due. So here the Accused admits that, there will be a liability on her on adjusting the dues. And further the Accused has undertaken to settle the dues, if she finds any liability on her.
22 Crl.Appeal.No.25174/202019.03. Coming to the ocular evidence, on this point, more specifically.
a) Cross-examination of PW.1, at Page No.12, Line Nos.17 to Page No.13, Line No.5, which reads as under;-
In Ex.P-30 notice the complainant claimed a sum of Rs. 33,58,317/- towards due amount. In complaint, complainant has claimed Rs. 12,72,238/- as due amount. The witness volunteers to state that when the accused received the notice, he replied that certain claims and returned stocks have not been adjusted towards due amount and as such,the complainant company adjusted such claims and returned stocks and claimed only 12,72,238/-. Such adjustments made by complainant company have been informed through E-mail by the concerned officials of the complainant company to the accused firm."
As per this evidence, PW.1 contends that, under Ex.P30-Notice the Complainant had claimed a sum of Rs.33,58,317/- towards due amount, but in the Complaint it has claimed Rs.12,72,238/-, as due amount, on adjusting the claims made by the Accused under the reply notice-Ex.P34 and the said 23 Crl.Appeal.No.25174/2020 adjustments have been informed to the Accused through e-mail.
b) Cross-examination of PW.1, at Page No.14, Line No.18 to Page No.15, Line No.1, which reads as under;-
The witness volunteers to state that complainant company had issued notice for total cheque amount of Rs.
33,58,317.07/- but after reconciliation, the complainant company has restricted its claim to Rs. 12,72,238/-. The amount is reconciled by finance team of the complainant company, on the basis of Ex.P-34 reply notice and same was communicated to accused through E-mail."
As per this evidence, PW.1 contends that, the accounts of the Accused is reconciled by the finance team of the Complainant company, on the basis of notice-Ex.P34 and the same has been communicated through e-mail.
19.04. Firstly, when the Accused contends that, she has returned the goods to the Complainant company, received by her under Ex.P4 to Ex.P19 and which is denied by PW.1, then it is for the Accused to prove the said fact.
24 Crl.Appeal.No.25174/2020Further when the Accused specifically contends that, the said goods have been returned through the specific person, through the specific vehicle and also that, the Complainant company has confirmed the receipts of the said goods, then it was for the Accused to prove the said fact of return of goods by her to the Complainant company by producing some cogent evidence, in the form of documentary evidence as well as in the form of ocular evidence. Even the Accused has not led her ocular evidence, inorder to prove the said fact of the return of goods by her to the Complainant company.
19.05. Secondly, when the Accused has made certain claims under the reply notice-Ex.P34 and admitted the liability, which claim has been considered by the Complainant company and on reconciliation of the account, the Complainant company has reduce the liability of the Accused from Rs.33,58,317/- to Rs.12,72,238/-, which as per the Accused is incorrect. Then it was for the Accused to produce certain materials on record to shows that, the Complainant company has failed to consider of any of her claims, projected by her under notice-
25 Crl.Appeal.No.25174/2020Ex.P34, which is required to be adjusted towards the liability. But neither the Accused has placed any materials on record nor has led any evidence, in rebuttal to the evidence laid by the Complainant to arrive at a conclusion of fixing the liability of the Accused to the tune of Rs.12,72,238/-.
Thus, the Accused has utterly failed to show that, she has returned the goods received by her under Ex.P4 to Ex.P19, to the Complainant; and the Complainant company has failed to consider the claims made by her under reply notice-Ex.P34, while reconciling her account.
Hence, I answer POINT NO.4 IN THE
NEGATIVE.
20. POINT NO.5:-
The Learned Counsel for the Appellant would contend that, the Complainant has filed a single Complaint inrespect of five Cheques, which is not maintainable as per the provisions Sec.219 of Cr.PC. And he would contend that, morethan three cause of actions cannot be taken under one Complaint.
26 Crl.Appeal.No.25174/202020.01. I have carefully gone through the Judgment passed by the Trial Court, wherein Trial Court in Para No.17 has observed that,
a) though there are five Cheques,but there is a single cause of action infavour of the Complainant, who has issued single statutory notice inrespect of the five Cheques; and
b) if the Complainant would have filed five different Complaints inrespect of five Cheques, it would have caused inconvenienced and hardship to the Accused herself. Filing of single Complaint on the basis of five Cheques, is beneficial to the Accused.
And has concluded that, filing of the single Complaint on the basis of five Cheques cannot be said to be not permissible under law.
20.02. As per Sec.219 of Cr.PC reads as under:-
"219. Three offences of same kind within year may be charged together.
When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.27 Crl.Appeal.No.25174/2020
2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860 ) or of any special or local law: Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860 ) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an offence of the same kind as an attempt to commit such offence, when such an attempt is an offence."
So, as per Sec.219 of Cr.PC a person accused of morethan one offence of the same kind committed within a space of 12 months from the first to the last offence, can be tried at one trial, for any number of them, not exceeding three. The offences shall be treated to be of same kind, when they are punishable with the same amount of punishment, under the provisions of Indian Penal Code or any special or local law.
20.03. Adverting to the facts of the instant case at hand, the Cheque Ex.P20 is dtd.09.01.2019, Ex.P22 is dated 10.01.2019, Ex.P24 is dated 28 Crl.Appeal.No.25174/2020 11.01.2019, Ex.P26 is dtd.13.01.2019 and Ex.P28 is dtd.14.01.2019. But all the said five Cheques were returned unencashed on 12.02.2019. The Complainant has issued legal notice to the Accused inrespect of nine Cheques, including Ex.P20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28, on 15.02.2019, as per Ex.P30, for which the Accused has issued reply as per Ex.P34.
20.04. As per the decision of the Hon'ble High Court of Bombay, in the case of Rajasthani Trading Company V/s Chemos International Ltd., reported in II(2001) DC 426, wherein it is observed in Para No.6, as under:-
"It is true that in the instant case petitioners had issued 27 cheques, 2 of which were dated 30.11.1996 while the remaining were dated 26.2.1997. Thus all the 27 cheques came to be issued to respondent No.1, within a span of less than 3 months. It is also true that dishonour in respect of each cheque would constitute separate offence. However, it is to be borne in mind that all the 27 cheques were presented to the bank on one and the same date and they were dishonoured by the bank. The intimation of dishonour of the cheques was given by the bank to respondent No.1 on one and the same date i.e. 10.3.1997. It may, further, be noted that a single notice dated 19.3.1997 in 29 Crl.Appeal.No.25174/2020 respect of the dishonour of all the 27 cheques was given to the petitioners. The offence under section 138 is deemed to have committed when the drawer of the cheques fails to make payment of the amount of money within 15 days of the receipt of the demand notice given under section 138(b) of the Negotiable Instruments Act. It is also material to note that all the 27 cheques issued by the petitioners were in connection with a single transaction entered with respondent No.1. Therefore, the provisions of section 220(1) of Cr.P.Code permits the respondent No.1 to file one complaint against the petitioners in respect of the said transaction and the petitioners can be tried together for the dishonour of 27 cheques which in fact forms the same transaction."
20.05. Further as per the decision of the Hon'ble High Court of Delhi, in the case of Sharma Contracts India Pvt. Ltd., V/s State and Anr, reported (2011) SCC Online Delhi 310, wherein it is observed in Para No.11, as under:-
"11. The purport of the above provision is that where a person is accused of more than one offence of the same kind committed within the space of twelve months he can be charged and tried at one trial for, any number of them not exceeding three. The stage for determining whether there should be more than one charge and therefore more than one trial has not yet been reached. That will be decided at the appropriate stage by the learned trial court as and when charges are 30 Crl.Appeal.No.25174/2020 framed. This issue should therefore be appropriately addressed to that Court. The mere reference in the complaint to 20 cheques as having been dishonoured cannot render the complaint bad in law or not maintainable. The order of the learned MM issuing summons also does not get invalidated on that score. The second submission of learned Senior counsel for the Petitioner is also rejected."
20.06. Further as per the decision of the Hon'ble High Court of Delhi, in the case of M/s Nova Vision Electronics Pvt. Ltd., and Anr V/s State and Anr., reported in 2011 Crl.L.J 868 (Delhi), wherein it is observed in Para No.8, as under:-
"8. A brief overview of the provisions of Sections 218 to 224 would show that the submissions of the learned counsel for the petitioners is completely untenable. The general rule is that the accused should be charged in respect of each distinct offence alleged to have been committed by him and he is entitled to a separate trial with respect to each of such charge in accordance with the provisions of Section 218 of the Cr.P.C. The exceptions culled out in Sections 219 and 220 apply to a situation as indicated above, where the same person is accused of more offences than one of the same kind committed within a time frame of 12 months taken from the first to the last of such offences. The limiting factor being that they cannot exceed 31 Crl.Appeal.No.25174/2020 three (3), and the Court cannot order a single trial in respect of more than three (3) such offences with which the accused is charged. As mentioned hereinabove, in the facts of the present case the same is clearly not applicable. The petitioners on their own showing are the accused in seven (7) cases. As regards the learned counsel‟s submission with respect to the applicability of Section 220 of the Cr.P.C., in my view, the same is again without merits. For Section 220 of the Cr.P.C. to apply, it is important that series of acts which comprise of several offences are connected in a manner that they form one continuous whole i.e., one single transaction. In the instant case, it is not disputed by the petitioners that thirteen (13) cheques of different dates were issued by the petitioners. The said cheques were presented by the respondent no.2 once again on different dates. The dates of dishonour of the said cheques are also different and as a matter of fact, not only the information with respect to dishonour was received on different dates but also the legal notices issued in respect of dishonour of each of the said cheques also carried different dates. Importantly, from the averments made in the petition, it is clear that the said cheques were issued by the petitioners to respondent no.2 with respect to separate purchase transactions. In my view, the provisions of Section 220 of the Cr.P.C. are not applicable to the facts and circumstances of the present case as each transaction was separate. The transactions were not interconnected as a continuous whole so as to form one single transaction. Each purchase transaction being separate 32 Crl.Appeal.No.25174/2020 there was no continuity of action and each act was complete by itself. See Nanak Chand & Ors. vs Emperor: AIR 1924 Lahore 734 at Page 737 (C2) & Page 738 (C1); Shapurji Sorabji & Anr. vs Emperor: AIR 1936 Bombay 154 at Page 157 (C1) and Page 158 (C1); Ramchandra Rango vs Emperor: AIR 1939 Bombay 129; also See Keshavlal vs Emperor:
AIR (31) 1944 Bombay 306 at 311; Rajendra B. Chaudhary vs State of Maharashtra & Anr.: AIR (2007) NOC 418."
20.07. So on applying the above preposition of law to the instant case at hand, it can be seen that, when dishonour of Cheques-Ex.P20, Ex.P22, Ex.P24, Ex.P26 and Ex.P28 is reported on 12.02.2019 and when notice U/Sec.138 of NI Act is issued on 15.02.2019, then the cause of action arose for the Complainant on the same day, though the Cheques are different, forming one and the same transaction, under such circumstances, the single Complaint filed by the Complainant inrespect of five Cheques, is maintainable.
Hence, I answer POINT NO.5 IN THE
NEGATIVE.
33 Crl.Appeal.No.25174/2020
21. POINT NO.6:-
Considering the inconsistent contentions raised by the Accused in the cross examination of PW1 and in the absence of any defence evidence from the side of the Accused, it can be said that, the stands takenup by the Accused, is not fortified with cogent evidence, on the basis of preponderance of probabilities, inorder to rebut the presumption available to the Complainant, U/Sec 139 of NI Act. So, in the absence of material evidence, the different and distinct stands, taken up by the Accused, cannot be accepted at all.
22. Thus, the presumption available to the Complainant U/Sec. 139 of N.I. Act, has remained unrebutted, from the side of the Appellant/Accused. Hence, presumption available to the Complainant U/Sec.139 of N.I.Act stands unrebutted. I have gone through the Judgment of the Trial Court, more specifically, Para Nos.18 to 20. Rightly the Trial Court has concluded that, the Accused has failed to rebut the presumption available to the Complainant U/Sec.139 of N.I.Act.
34 Crl.Appeal.No.25174/2020HENCE, I ANSWER POINT NO. 6 IN THE AFFIRMATIVE.
23. POINT NO 7:
Under these circumstances, there is no any hurdle to derive the presumption available to the holder of the cheques U/Sec.118 as well as U/Sec. 139 of N.I.Act. I find force to my above opinion as per the decision of Hon'ble Apex Court in the case of Hiten Pidalal V.s Bratindranath Banergi reported in 2001 Crl.L.J. 4647 (Supreme Court) as well as in the case of M.S.Narayan Menon @ Mani V/s State of Kerala and Another reported in 2006 SAR.Crl.616 and in the case of Krishna Janardhan Bhat V/s Dattatreya G. Hegde reported in (2008)2 SCC Crl. 166. Rightly, the Trial Court has considered all these aspect and there is no any fault on the part of the Trial Court. I do not find any force in the submission of the learned counsel for the Appellant.
24. Further the Statement of the Accused is recorded by the Trail Court U/Sec 313 of CrPC on 20.02.2020, it covers the entire incriminating 35 Crl.Appeal.No.25174/2020 substance, brought on record by way of evidence, against the Accused. The Trial Court has examined the Accused U/Sec. 313 of Cr.P.C. I have gone through the statement of the Accused recorded by the Trial Court U/Sec. 313 of Cr.P.C., and the reply given by the Accused, to the said questions, in the statement. I do not find any fault in the statement of the Accused, recorded by Trial Court U/Sec 313 of Cr.P.C.
25. I have carefully gone through the reasonings given by the Trial Court, while awarding compensation to the Complainant U/Sec.357 of Cr.P.C. I do not find any error or material irregularity in the said findings.
26. Further inorder to conclude, the Hon'ble High Court of Kerala has held in General Auto Sales Vs Vijayalakshmi, reported in 2005(1) KLT 478 in Paragraph No 8 thereof, that:
"Even if a blank signed cheque has been given towards liability or even as security, then the liability subsists and quantified, if the cheque is filled up and presented to the Bank, the person who had drawn the cheque, cannot avoid the 36 Crl.Appeal.No.25174/2020 criminal liability under Section 138 of NI Act".
26.01. Further the Hon'ble Apex Court has held in Rangappa Vs Sri Mohan, reported in (2010) 11 SCC 441, that;
"Once issuance of cheque and signature thereon are admitted, presumption of a legally enforceable debt infavour of the holder of the cheque arises. It is for the Accused to rebut the said presumption, though Accused need not adduce his own evidence and can rely upon the material submitted by the Complainant. However, mere statement of the Accused may not be sufficient to rebut the said presumption".
27. In this case, there was really presumption available infavour of the Complainant in terms of Section 138 & 139 of Negotiable Instruments Act, against the Accused and the Accused has not discharged his burden to rebut that presumption.
28. The Trial Court has considered all the aspects, the grounds taken up by the Accused, as defence. The Order of the Trial Court in awarding compensation to the Complainant, is also wel- reasoned.
37 Crl.Appeal.No.25174/202029. When no fault is committed by the Trial Court, in coming to the conclusion, convicting the Accused for the offence punishable U/Sec 138 of NI Act, interference to that effect, by this Court does not arise at all.
30. Thus, I am declined to interfere with the findings recorded by the Trial Court.
31. Necessarily the prosecution succeeds. The conviction is therefore confirmed, as the Accused is found guilty of the offence punishable under Section 138 of Negotiable Instruments Act. The Accused is hereby directed to pay the amount of compensation, as ordered by the Trial Court.
Hence, for the above reasons I am constrained to answer POINT NO. 7 IN THE NEGATIVE.
32. POINT NO. 8:
For having answered Point Nos.2 & 6 in the Affirmative; and Point Nos.3 to 5 and 7 in the Negative, I proceed to pass the following:38 Crl.Appeal.No.25174/2020
ORDER Inview of answering Point No.1, 'as does not arise at all', IA No.2/2020 filed by the Appellant U/Sec.5 of Limitation Act, is disposed off Accordingly.
Acting U/Sec.386 of Cr.P.C., the Appeal preferred by the Appellant/Accused is hereby Dismissed.
In the consequences, the order of conviction passed by the Learned XIV Addl. CMM, Bengaluru in C.C.No.52757 of 2019, dtd.12.10.2020, recording conviction of the Accused, is hereby confirmed.
The order of suspension passed by this Court U/Sec.389 of Cr.P.C. stands revoked.
The Trial Court shall execute its order, as per law.
No order as to costs.
In case, if the Appellant/Accused has deposited the amount, as directed U/Sec. 148 of N.I. Act, the same may be dealt with, as per Law U/Sec. 143 of the said Act.
Remit the TCR to the Trial Court, on obtaining necessary acknowledgment, from it, alongwith the copy of this Judgment. (Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me, in the open court on this the 3rd day of January, 2022.) [Abdul-Rahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)