Bangalore District Court
A Company Incorporated Under vs A Company Incorporated Under The on 7 July, 2022
CC NO.993/2021
SCCH-26
KABC020040282021
BEFORE THE COURT OF XXIV ADDITIONAL SMALL CAUSES
JUDGE AND THE MOTOR ACCIDENT CLAIMS TRIBUNAL &
A.C.M.M. (SCCH-26) AT BENGALURU
DATED THIS THE 7th DAY OF JULY 2022
PRESENT:SRI.ARUN SADASHIV GUDIGENAVAR.
B.A., LLB.,(Hon's) LL.M.
XXIV ADDL. SCJ &
ACMM & MEMBER - MACT
BENGALURU.
1. Sl. No. of the Case CC.No.993 of 2021
2. The date of 30-01-2021
commencement
of evidence
3. The date of 23-03-2022
closing evidence
4. Name of the Dhruva Imaging Pvt., Ltd.,
Complainant A company incorporated under
the provisions of the companies Act, 1956
having its registered office at :
# 5, I floor, MSH layout I stage
Anandanagar,
Bangalore-560024
Represented by its
CFO/authorised representative
Mr.Narayanswamy Dorairaj
(By Sri.S.S.N..-Advocate)
1 CC NO.993 OF 2021
SCCH-26
5. Name of the 1. Supurva hospitals Pvt., Ltd.,
Accused A company incorporated under the
provisions of the companies Act, 2013
having its registered office at
No.21/3
Vasanthpura road
Konankunte
Bengaluru-560 062
Represented by its Director,
Mr.Gowrishankar Yogeeshankar
2. Mr.Gowrishankar Yogeeshankar
Director, Supurva hospitals Pvt., Ltd.,
A company incorporated under
the provisions of the companies Act 2013
having its registered office at
No.21/3,
Vasanthpura road
Konankunte
Bengaluru-560 062.
(By Sri.S.R.S.-Advocate)
6. The offence U/s.138 of the Negotiable
complained of Instruments Act
7. Opinion of the Accused found guilty
judge
2 CC NO.993 OF 2021
SCCH-26
JUDGMENT
The complainant has filed this complaint Under Section 200 of Cr.P.C against the accused alleging that the accused has committed an offence punishable Under Sec.138 of the Negotiable Instruments Act, 1881. (In short N.I.Act).
2. The brief facts of the complainant's case are as under:-
It is the case of the complainant that he is the authorized distributor for M/s AGFA Health Care Pvt.
Ltd. and engaged in the business of supplying of medical equipment to various hospitals. Accused No.1 is a Supurva Hospitals Pvt. Ltd. and accused No.2 is a director of the said hospital. On 20-02- 3 CC NO.993 OF 2021 SCCH-26 2018 the accused have placed order for purchasing of AGFA CR-12X digitizer with all accessories worth of Rs.5,60,000/-. By considering the order placed by the accused he has delivered the requisite equipment to them and in this regard he has raised invoice dated 21-02-2018 for sum of Rs.6,27,000/-
including applicable taxes. The same has been accepted and acknowledged by the accused.
3. Further it is the case of the complainant that at the time of purchase order, the accused no.1 has issued cheque bearing No.096424 for sum of Rs.3,50,000/- towards advance payment with instructions not to present the same for encashment till the accused No.2 would make the advance payment through bank transfer and further instructed to use the said cheque towards 4 CC NO.993 OF 2021 SCCH-26 balance payment. Further it is the case of the complainant that the accused No.1 has paid total advance amount of Rs.3,50,000/- on two different dates i.e., on 12-03-2018 Rs.2,00,000/- by way of RTGS vide UTR No.VIJBR52018031200071563 and on 12-03-2018 sum of Rs.1,50,000/- by way of NEFT vide UTR No.VIJBH18071082638.
4. Further it is the case of the complainant that since 12-03-2018 the accused have not repaid the balance amount of Rs.2,77,200/-. As such he has repeatedly requested the accused to pay the balance amount. Because of this reason the accused have instructed him to utilize the cheque given to him towards advance payment for satisfying the balance amount. The said cheque 5 CC NO.993 OF 2021 SCCH-26 has been presented on 21-10-2020. But the same has been returned to him on 22-10-2020 with endorsement "Funds Insufficient". Thereafter, he has got issued demand notice to the accused on 29-10-2020 through RPAD. The notice has not been served on the accused and it has been returned with endorsement dated 31-10-2020 as "Addressee left resent to the sender". Hence, this complaint.
5. After filing of this complaint, the cognizance of the offence has been taken and the complaint has been registered as P.C.R. Thereafter, the sworn statement of the complainant has been recorded and also got marked 17 documents as Ex-P1 to P17. Thereafter, the case has been registered in Crl.Reg.No.III and summons has been 6 CC NO.993 OF 2021 SCCH-26 issued to the accused. In response of summons, accused No.2 has appeared before this court through his counsel and obtained bail. The accused No.1 is a Supurva hospitals pvt., Ltd., The plea has been recorded, read over and explained to the accused No.2. He has pleaded not guilty and claims to be tried. Hence, the case has been posted for complainant evidence. The complainant has adopted sworn statement and Ex-P1 to 17 as his evidence. Thereafter, statement of accused u/s 313 Cr.P.C. has been recorded. He has denied the incriminating circumstances appearing in the evidence of complainant against him. He has not chosen to lead defence evidence.
6. Heard the arguments from both sides. 7 CC NO.993 OF 2021
SCCH-26 Perused the entire records.
7. The following points arise for my consideration:-
POINTS
1. Whether the complainant proves that the accused has issued cheque in question in discharge of the legally recoverable debt or any other liability as contended by him?
2. Whether complainant proves that the accused has committed the offence punishable under Sec.138 of NI Act?
3. Whether the complainant is entitled for the relief as prayed in the complaint?
4. What order?
8. My answer to the above points is as follows :-
Point No.1 to 3 :In the Affirmative 8 CC NO.993 OF 2021 SCCH-26 Point No.4 : As per final order for the following :-
REASONS
9. POINT NO.1 to 3 :-These three points are taken together for common discussion in order to avoid facts and evidences.
10. It is the case of the complainant that on 20-02-2018 the accused have placed order of purchase of one set of AGFA CR-12X digitizer with all accessories worth of Rs.5,60,000/-. In this regard he has raised invoice dt.21-3-2018 for sum of Rs.6,27,200/- and delivered the said equipment to the accused. The accused No.1 has issued cheque bearing NO.096424 for sum of Rs.3,50,000/- towards advance payment with 9 CC NO.993 OF 2021 SCCH-26 instructions to him not to present the same for encashment till the accused No.2 would make the advance payment through bank transfer and further instructed him to use the said cheque towards balance payment at later stage.
11. Further it is the case of the complainant that the accused No.1 has paid total advance amount of Rs.3,50,000/- on two different dates i.e., on 12-03-2018 Rs.2,00,000/- by way of RTGS vide UTR No.VIJBR52018031200071563 and on 12-03- 2018 sum of Rs.1,50,000/- by way of NEFT vide UTR No.VIJBH18071082638. But the accused have not paid the balance amount of Rs.2,77,200/- since 12-03-2018. The accused are due by sum of Rs.3,50,000/- including the late payment fee of 10 CC NO.993 OF 2021 SCCH-26 Rs.72,800/-. Therefore, he has repeatedly requested the accused to pay the balance amount. Because of this reason the accused No.2 has instructed him to present the cheque issued in his favour towards advance payment for clearing the balance amount. As per the instruction of accused No.2 he has presented the said cheque on 21-10- 2020 for encashment. But the cheque has been returned to him on 22-2-2020 with endorsement "Funds Insufficient". Therefore, he has got issued demand notice to the accused on 29-10-2020 through RPAD. The notice has not been served on the accused and it has been returned to him with endorsement dt.31-10-2020 as addressee left.
12. As already stated supra, the complainant 11 CC NO.993 OF 2021 SCCH-26 in order to prove his case has examined himself as PW-1 and got marked 17 documents as Ex-P1 to P17. Ex-P1 is the original copy of board resolution which shows that the complainant is a authorized person to file the present complaint on behalf of the company. Ex-P2 and P3 are original purchase order and copy of invoice. These two documents disclose that the accused has purchased AGFA-CR system worth of Rs.6,27,200/- from the complainant. Ex-P5 is cheque dated 30-09-2020 and Ex-P6 is the bank endorsement dated 22-10- 2020. These two documents reveal that the complainant has presented the cheque for encashment at Canara bank, but the same has been returned to him with endorsement "Insufficient Fund". Ex-P4 is the statement of 12 CC NO.993 OF 2021 SCCH-26 account of the complainant company, Ex-P7 is the legal notice, Ex-P8 and 9 are postal fee paid receipts, Ex-P10 and 11 are unopened cover. Ex- P12 is a mail communication letter, Ex-P13 is the affidavit u/s 65B of Indian Evidence Act, Ex-P14 is the fee paid receipt to MCA, Ex-P15 is the memorandum of association of complainant company, Ex-P16 is the articles of association of complainant company and Ex-P17 is the audit report of the complainant company.
13. The documents produced by the PW-1 clearly shows that he has complied with the mandatory requirements as envisaged u/s 138 of NI Act. Therefore, the complainant has discharged his initial burden by producing the documentary 13 CC NO.993 OF 2021 SCCH-26 evidence. Therefore, it gives raise to statutory presumption u/s 118 r/w section 139 of NI Act in favour of the complainant. Section 118 of NI Act reads as under:-
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.
14. Further Section 139 of NI Act provides for presumption in favour of holder. It reads as under:-
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part or any debt or other liability.
15. On combined reading of the above provisions, it raises a presumption in favour of 14 CC NO.993 OF 2021 SCCH-26 holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability. It is relevant to note that the law itself provides that such presumptions are rebuttable in nature. In order to rebut the presumption, the learned counsel for the accused has cross-examined PW-1. PW-1 in his cross- examination has admitted that-
ನಪ 2 ಪ ಪಕರ ವವದತ ಚಕಕ
ಕ undated and blank
cheque ಎಎದರ ಸರ. ಮಮರಕವರ ಲಕ ಹಣ ಈ
ವವದತ ಚಕಕಗ ಸಎಬಎಧಸದಎತ ಆರ ಟ ಜ ಎಸ
ಮಕಖಎತರ ಆರಮರಪ ಕಡಯಎದ ಬಎದದ ಎಎದರ ಸರ.
ಆರಮರಪ ವರಕದದ ಸವಲ ವವಜವ ಹಣ ವಸಮಲತಗಗ
ದಖಲಸಲಲ. ಹಣ ಬಎದರಕವ ಚಕಕನಕ
ನ ವಪಸ
ಕಮಟಟದರ ಎಎದರ ಸಕಯಕ ಅವರಕ ಕರಳಲಲ ಎಎದಕ ಹರಳಕತತರ.
16. Further PW-1 in his cross-examination has 15 CC NO.993 OF 2021 SCCH-26 deposed that -
ನನಗ ಆರಮರಪಯ ಇಮರಲಐ.ಡ ಗಮತತದ ಎಎದರ ಸರ.
ವವದತ ಚಕಕನಕ
ನ ಬವಎಕಗ ಹಜರಕಪಡಸಕವ ಪವರದಲ
ಆರಮರಪಗ ಲಖತವಗ ತಳಸಲಲ. ಸಕ ಮಕಕವಗ
ಪರನನಲ ತಳಸದನ ಎಎದಕ ಹರಳಕತತರ. ವವದತ
ಚಕಕನಕ
ನ ಬಎಕಗ ಹಜರಕಪಡಸಕವ ಪವರದಲ ನನಕ
ಹರಳಕತತರಕವಎತ ಮಖಕವಗ ತಳಸಲಲ ಎಎದರ ಸರಯಲಲ. ಆರಮರಪ ನನಗ ಯವದರ ಹಣ ಕಮಡಬರಕಗಲಲ ಎಎದರ ಸರಯಲಲ. ಆರಮರಪಯ ಚಕಕನಕ ನ ದಕಬರಳಕ ಮಡಕಮಎಡದನ ಎಎದರ ಸರಯಲಲ.
17. The learned counsel for the accused by relying upon the above admission of PW-1 would vehemently argue that the complainant has already received the cheque amount by way of RTGS from the accused. As such there exist no legally enforciable liability. Further he would argue that by way of cross-examination of PW-1 he has rebut the presumption raised in favour of accused 16 CC NO.993 OF 2021 SCCH-26 u/s 118 and 139 of N.I Act. On the other hand the learned counsel for the complainant would argue that though PW-1 has admitted that he received sum of Rs.3,50,000/- from the accused through RTGS, but the said payment was received as an advance amount at the time of purchase of equipment and not for balance amount. Further he would argue that, Ex-P2 cheque was issued for the payment of balance amount but not for an advance amount, as such the admission given by PW-1 with respect to receipt of Rs.3,50,000/-as an advance amount from the accused by way of RTGS. He would also argue that at para No.5 and 6 of the complaint he clearly mentioned the receipt of advance amount from the accused by way of RTGS and also mentioned for what purpose the accused 17 CC NO.993 OF 2021 SCCH-26 has issued cheque in his favour. Therefore, the said admission given by PW-1 is only with respect to advance amount and not with respect to balance amount i.e., actual cheque amount.
18. It is true that PW-1 has admitted that he received sum of Rs.3,50,000/- as mentioned in the cheque by way of RTGS from the accused. Therefore, such admission has to be considered carefully based on the facts and circumstances of the case. Therefore, at this juncture, it is relevant to refer and reproduce para No.5 and 6 of the complaint.
Para 5- It is submitted that at the time of purchase order, the accused No.1 had issued to the complainant an undated cheque bearing No.096424 for a sum of Rs.3,50,000/- (Rupees three lakh fifty thousand only) towards advance 18 CC NO.993 OF 2021 SCCH-26 payment and had further instructed the complainant not to present the same for encashment at that point in time as the accused No.2 would make he advance payment through bank transfer and instructed complainant to use the aforesaid cheque towards balance payment and present the same for encashment upon the instructions from accused No.2.
Para 6- It is submitted that the accused No.1 has paid an advance amount of Rs.3,50,000/- (Rupees three lakh fifty thousand only) for the afore mentioned medical equipment in the following manner: (1) on 12-03-2018 a sum of Rs.2,00,000/- (Rupees two lakh only) by way of RTGS vide UTR No.VIJBR52018031200071563 and (2) on 12-03-2018 a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only) by way of NEFT vide UTR No.VIJBH18071082638 thereby subscribing to the transaction and acknowledging that the transaction was a concluded contract. A copy of the bank statement depicting the afore mentioned payments is appended hereto as Annexure D. 19 CC NO.993 OF 2021 SCCH-26
19. At para No.5 of the complaint, the complainant has clearly stated that the accused No.1 issued cheque bearing No.096424 for sum of Rs.3,50,000/- towards advance amount with instruction not to present the same for encashment till the accused No.2 would make advance payment through bank transfer. Further it is clearly stated by the complainant that the accused No.1 instructed him to present the cheque for encashment towards balance payment.
20. Further at para No.6 the complainant has clearly stated that accused No.1 paid an advance amount of Rs.3,50,000/-, for the purchase of medical equipments, through RTGS and NEFT i.e., sum of Rs.2,00,000/- through RTGS vide UTR 20 CC NO.993 OF 2021 SCCH-26 No.VIJBR52018031200071563 on 12-03-2018 and sum of Rs.1,50,000/- through NEFT vide UTR No.VIJBH18071082638.
21. It is relevant to note that the cheque amount is Rs.3,50,000/- issued towards balance payment and the advance amount paid by the accused by way of RTGS and NEFT is Rs.3,50,000/-. Further it is relevant to note that PW-1 has given admission in respect of sum of Rs.3,50,000/- paid by accused as an advance amount through RTGS and NEFT in his favour. But not in respect of balance amount of Rs.3,50,000/- as mentioned in Ex-P5 cheque. The complainant has not disputed in his complaint or in his legal notice about the receipt of advance amount of Rs.3,50,000/- from 21 CC NO.993 OF 2021 SCCH-26 the accused by way of RTGS. Therefore, the admission given by PW-1 is with respect to receipt of advance amount of Rs.3,50,000/- by way of RTGS and NEFT from the accused but not for the balance amount of Rs.3,50,000/- as mentioned in Ex-P5 cheque. Had PW-1 given admission with respect to receipt of balance amount of Rs.3,50,000/- as mentioned in Ex-P5, then the matter would have been different. Therefore in my opinion the admission given by PW-1 is only with respect to receipt of sum of Rs.3,50,000/- by way of RTGS from the accused as stated in para No.6 of the complaint. Therefore, the arguments of learned counsel for the accused are not acceptable one. It is relevant to note that the accused has denied entire case of the complainant while recording his 22 CC NO.993 OF 2021 SCCH-26 statement u/s 313 of Cr.P.C. but he has not chosen to lead any defence evidence on his behalf. Therefore, it is clear that the accused has chosen to rebut the presumption only by way of cross- examination of PW-1. Further it is relevant to note that the accused has not produced any document to show that he has paid the cheque amount of Rs.3,50,000/- in favour of the complainant as mentioned in Ex-P5. Therefore, in my opinion the accused has failed to rebut the presumption drawn in favour of the complainant u/s 118 r/w 139 of NI Act. Therefore in my opinion the complainant has successfully proved that the accused has issued cheque in question in his favour for discharge of his liability i.e., the payment of balance amount of Rs.3,50,000/- for having purchased the medical 23 CC NO.993 OF 2021 SCCH-26 equipment from him. Further the complainant has proved that the accused has committed an offence punishable u/s 138 of NI Act. Hence, the complainant is entitled for relief as prayed in the complaint. Accordingly, I answer point No.1 to 3 in the Affirmative.
22. Point No.4: For the aforesaid reason, I proceed pass the the following:-
-: O R D E R :-
By Acting U/s 255(2) of Cr.P.C the accused is hereby convicted for the offence punishable U/s 138 of NI Act.
The accused is hereby sentenced to pay fine of Rs.3,55,000/- (Rupees Three lakhs fifty five thousand only). In default, the accused shall undergo simple imprisonment for period of six months.
24 CC NO.993 OF 2021
SCCH-26 Acting U/s 357(3) of Cr.P.C. out of the total fine amount payable by the accused, a sum of Rs.3,50,000/- shall be paid to the complainant as compensation and remaining amount of Rs.5,000/- shall be defrayed as state expense.
It is further made it clear that if the accused opt to undergo imprisonment, it does not absolve him from liability of paying compensation to the complainant.
Office is hereby directed to supply free certified copy of this judgment to the accused forthwith.
(Dictated to the stenographer, directly over computer, typed by her, corrected by me and then pronounced in the open Court on this day 7th July 2022) (ARUN SADASHIV GUDIGENAVAR) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW-1: Narayanswamy Dorairaj
25 CC NO.993 OF 2021
SCCH-26
DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P1: Original copy of the board resolution Ex.P2: Original purchase order Ex.P3 : Original office copy of invoice Ex-P4 : Statement of accounts Ex-P4 (a) : Transaction dt.22-10-2020 Ex-P5 : Cheque Ex-P5(a) : Signature Ex-P6 : Bank endorsement Ex.P7 : Legal notice dt.29-10-2020 Ex.P8 & 9 : 2 postal receipts Ex.P10 & 11 : 2 unserved and unopened postal cover Ex.P12 : E-mail conversation dt.06-11-2020 Ex.P13 : 65B affidavit Ex.P14 : Receipt from MCA for having paid fee for applying for the MCA website Ex.P15 : Copy of MOA of complainant company as downloaded from the MCA website Ex.P16 : Copy of AOA of complainant company as downloaded from 26 CC NO.993 OF 2021 SCCH-26 MCA website Ex.P17 : Original certificate from CA with list of sundry debtors of the complainant company Ex.P17(a) : Entry as Supoorva Multispeciality hospital Rs.2,77,200/-
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
NIL DOCUMENTS MARKED ON BEHALF OF THE ACCUSED: NIL (ARUN SADASHIV GUDIGENAVAR) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.27 CC NO.993 OF 2021
SCCH-26