Bangalore District Court
Company Sold And Supplied Threads On ... vs No.2 And 3 Neither Replied Nor Paid The ... on 23 September, 2021
1 CC.19848/2018 (J)
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE CITY.
Dated this the 23rd Day of September2021
Present: Lokesh Dhanapal Havale. B.A.L.L.B.,
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.19848/2018
2.Name of the Complainant: THREADS (INDIA) LTD.,
No.14/5, Ganesha Block,
Next to Sri.Subramanya Temple,
Nandini Layout,
BENGALURU560 096.
REGD OFFICE:
THREADS (INDIA) LTD.,
D3/A, PANKI INDUSTRIAL
ESTATE,
KANPUR 208 011.
State: Uttar Pradesh,
Represented by its Directdor
GOPAL CHANDRA LOHIA
Authorized Letter of Authority
Holder as per Company Board
Meeting Resolution
SUKHRAJ BHANDARI,
S/o.Late Dhanaji,
Aged about 62 years,
No.64/01, Model House Street,
Basavanagudi,
BENGALURU560 004.
2 CC.19848/2018 (J)
3.Name of the accused: 01. ANJANA THREADS
Dealers in:
Threads & Garment Materials
Door No.2 (A7),
Omkar Bhavan,
Sabapathi Well Street,
BELLARY 583 101.
State: Karnataka
Represented by its
Proprietress
MORI DEVI,
W/o.THANARAM CHOWDHARY
Mobile: 089048 46216/
94496 02491.
Pan Card No.AFKPT7292Q
Vat No.29270626865.
02. MORI DEVI,
W/o.THANARAM CHOWDHARY
Proprietress of
ANJANA THREADS
Dealers in:
Threads & Garment Materials
Door No.2 (A7),
Omkar Bhavan,
Sabapathi Well Street,
BELLARY 583 101.
State: Karnataka.
RESIDING AT:
MORI DEVI,
W/o.THANARAM CHOWDHARY,
Ward No.05,
Door No.01, Gowlarahatti,
BELLARY - 583 101.
State: Karnataka.
3 CC.19848/2018 (J)
As per order dated 21.11.19
Accused No.2 is hereby
Dropped.
03. THANARAM CHOWDHARY,
S/o.Ketharamji Chowdhary
( Date of Birth: 26/06/1967)
Aged about 51 years,
Authorized Signatory for
ANJANA THREADS
Dealers in:
Threads & Garment Materials
Door No.2 (A7),
Omkar Bhavan,
Sabapathi Well Street,
BELLARY 583 101.
State: Karnataka
RESIDING AT
THANARAM CHOWDHARY,
S/o.Ketharamji Chowdhary,
Ward No.05,
Door No.01, Gowlarahatti,
BELLARY - 583 101.
State: Karnataka.
D.L No.KA34 20020001432
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2) Cr.P.C., accused is
Convicted.
7.Date of final Order 23.09.2021.
***
4 CC.19848/2018 (J)
This complaint is filed U/Sec.200 of Cr.P.C. against the accused
for the offence punishable U/Sec.138 of the Negotiable Instruments
Act, 1881.
2. The facts of the complaint in brief are as under:
The complainant is a company carrying on business of threads
and represented by authorized person appointed as per the Company
Board Meeting Resolution. Accused No.1 is the proprietorship
concerned carrying on threads business and accused No.2 is the
Proprietress. The accused No.3 is the authorized signatory. The
complainant company sold and supplied threads on various dates under
different commercial credit tax invoices to accused No.1 and the due
balance is Rs.3,32,000/. Accused No.3 issued cheque in favour of the
complainant as authorized signatory for accused No.1 for making
payment of the due amount of Rs.3,32,000/. The cheque bearing No.
000005 dated 02052018 for Rs.3,32,000/ drawn on Lakshmi Vilas
Bank, Bellary Branch, No.139, Kallamma Street, Opposite: Sona
Complex, Bellary - 583 101. When it was presented for encashment, it
returned with an endorsement "Account Closed" on 05.05.2018. He
issued the legal notice to the accused on 22.05.2018 through RPAD and
it was returned on 26.05.2018 with shara 'Left'. After the said date the
accused No.2 and 3 neither replied nor paid the loan amount within 15
days. Hence prayed to punish the accused and compensate the
complainant.
3. After the institution of the complaint, cognizance has been
taken and the case has been registered as PCR No.9542/2018. The
sworn statement of the complainant has been recorded and on the basis
5 CC.19848/2018 (J)
of sworn statement and other materials on hand the criminal case has
been registered against the accused No.2 and 3 and summons was
issued to them. In response to the service of summons the accused No.2
and 3 appeared through their learned counsel and got enlarged on bail.
The prosecution papers supplied to the accused and the substance of
accusation for the offence punishable U/s.138 of Negotiable
Instruments Act was read over to the accused No.2 and 3. They
pleaded not guilty and claimed to be tried.
4. During trial the complainant examined as PW1 and got
marked Ex.P.1 to P.12. The statement of the accused U/s. 313 of
Cr.P.C. could not be recorded as the accused remained absent and they
were not secured. The accused did not lead defence evidence. The
complainant filed memo and in view of the memo the proceedings
against accused No.2 was dropped.
5. I have heard the arguments and perused the entire
materials. The following points would arise for my consideration.
1. Whether the complainant proves that the
Accused No.3 issued the cheque bearing No.
000005 dated 02052018 for Rs.3,32,000/
drawn on Lakshmi Vilas Bank, Bellary
Branch, No.139, Kallamma Street, Opposite:
Sona Complex, Bellary - 583 101 in his
favour towards the discharge of legally
enforceable debt/liability in part and on its
presentation for encashment, it was
6 CC.19848/2018 (J)
dishonored with an endorsement of "Account
Closed" in the account maintained by the
accused and the accused has not paid the
amount even after 15 days from the date of
service of notice on him and thereby accused
committed an offence punishable U/Sec.138
of N.I. Act, 1881 ?
2. Whether the accused rebuts the
presumption U/s.139 of N.I.Act?
3. What order?
6. My answers to the above points are as under.
Point No.1 : In the Affirmative
Point No.2 : In the Negative
Point No.3 : As per final order for the following;
REASONS
7. Point No.1 & 2: The points are taken together for discussion
to avoid repetition of facts and evidence. At this juncture, it is necessary
to go through the provisions of N.I.Act before proceeding further. The
provisions under Section 118(a) and 139 of the Act., 1881 are
extracted and they reads thus;
7 CC.19848/2018 (J)
"118. Presumptions as to negotiable
instruments. - Until the contrary is proved,
the following presumptions shall be made:
(a) of consideration - that every
negotiable instrument was made or drawn
for consideration, and that every such
instrument, when it has been accepted,
indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or
transferred for consideration.
(b) as to date: that every Negotiable
Instrument bearing date was made or drawn
on such date;
"139. Presumption in favour of holder.
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, of any debt or other
liability."
8. On plain perusal of the provisions under Section 118(a) and
139 of the N.I.Act., as extracted herein above, it can be seen that
initially the presumptions constituted under these two provisions
favour the complainant. However, it is open to an accused to raise a
defence to rebut the statutory presumptions. An accused can raise a
defence, wherein the existence of legally enforceable debt or liability
can be contested.
8 CC.19848/2018 (J)
9. It is also well established that an accused for discharging the
burden of proof placed upon him under a statute need not examine
himself. He may discharge his burden on the basis of the materials
already brought on record. An accused has constitutional rights to
maintain silence. Standard of proof on part of the accused and that of
the prosecution in a Criminal case is different. The prosecution must
prove the guilt of an accused beyond all reasonable doubts, the
standard of proof so as to prove a defence on the part of an accused is
"Preponderance of probabilities".
10. Under the light of above extracted provisions of the Act, I
have perused the oral and documentary evidence on record. In order to
prove his case the complainant examined himself as PW.1 and got
marked Ex.P.1 to P.12. Ex.P.1 is the Board Resolution of the
complainant Company in favour of its Accountant. On perusal of
Ex.P.1, it is clear that the complainant Company appointed its
Accountant to proceed with the case on its behalf. Ex.P.2 is the cheque
cheque bearing No. 000005 dated 02052018 for Rs.3,32,000/ drawn
on Lakshmi Vilas Bank, Bellary Branch, No.139, Kallamma Street,
Opposite: Sona Complex, Bellary - 583 101. Ex.P.2(a) is the signature
of the accused No.3 on the cheque. Ex.P.3 is the Bank endorsements
dated 05.05.2018, which was issued with a Shara "Account Closed".
Ex.P.4 is the office copy of the statutory notice dated 22.05.2018.
Ex.P.5 to 8 are the Postal receipts for having been sent the statutory
notice to the accused through speed post. Ex.P.9 to and P12 are the
Postal envelopes returned unserved with shara 'Left'.
9 CC.19848/2018 (J)
11. I have perused the exhibits on which the complainant has
placed his reliance. On perusal of the exhibits, it is clear that the
cheque at Ex.P.2 bearing No. 000005 dated 02052018 for
Rs.3,32,000/ drawn on Lakshmi Vilas Bank, Bellary Branch, No.139,
Kallamma Street, Opposite: Sona Complex, Bellary - 583 101. was
presented through the Bank within its validity for encashment and the
Bank issued endorsement as per Ex.P.3 on 05.05.2018 with a shara
"Account Closed". The complainant issued statutory notice dated
23.05.2018 as per Ex.P.4 within time from the date of receipt of Bank
Memo. The notice was issued to the correct last known address of the
accused No.2 and 3 and it was returned with shara 'Left' on
26.05.2018. The complaint has been filed on 11.07.2018, which is
within limitation. It is pertinent to note that accused No.1 is the
Proprietorship concern and accused No.2 is the Proprietress. The
transaction was between complainant and accused No.1 and 2.
However the cheque was issued by accused No.3. The accused No.3 is
none other than the husband of accused No.2.
Section 138 of The Negotiable Instruments Act, 1881 reads
as under:
138 Dishonour of cheque for insufficiency, etc., of funds in the
account.
Where any cheque drawn by a person on an account maintained
by him with a banker for payment of any amount of money to another
person from out of that account for the discharge, in whole or in part,
of any debt or other liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit of that account
is insufficient to honour the cheque or that it exceeds the amount
10 CC.19848/2018 (J)
arranged to be paid from that account by an agreement made with that
bank, such person shall be deemed to have committed an offence and
shall, without prejudice to any other provisions of this Act, be punished
with imprisonment for a term which may be extended to two years, or
with fine which may extend to twice the amount of the cheque, or with
both.
It is clear from the provision itself that the terms any 'debt or
other liability' used in the provision also covers cheque issued for
another's liability. In the case on hand the cheque was issued by
accused No.3 for the liability of accused No.2, who is his wife.
Therefore, the documents on record clearly show that the complainant
has complied the ingredients of Section 138(a) to (c) of the N.I.Act.
Therefore the presumptions U/s.118 and 139 of the N.I.Act arise in
favour of the complainant. The presumptions are rebuttable and the
burden is on the accused to rebut the presumptions.
12. The plea of the accused was recorded on 18.10.2019 and
the case was posted for crossexamination of PW1. PW1 was not
crossexamined till 02.03.2020. On the said day the crossexamination
of PW1 taken as nil. The statement of the accused could not be
recorded as the accused did not appear before the court and they were
not secured. The case was posted for arguments on 23.03.2020. The
stage was for arguments till 09.09.2021. The order sheet shows the
conduct of the accused in delaying the proceedings. It appears that the
accused is not interested in challenging the evidence of the
complainant on record. Therefore the written arguments filed by
counsel for the complainant taken on record and the case was posted
for Judgment.
11 CC.19848/2018 (J)
13. The undisputed evidence of PW1 indicates that the
accused has issued cheque as per Ex.P.2 for a total sum of
Rs.3,32,000/ towards the discharge of legally enforceable debt in part.
On the basis of evidence on record the court has raised statutory
presumption U/s.118(a) and 139 of N.I.Act. in favour of the
complainant. No doubt that the statutory presumptions are rebuttable
but the accused failed to rebut the evidence on record even though
sufficient opportunities were given to him. For the reasons mentioned
herein above, it is crystallized that the accused has utterly failed to
prove that there was no existence of legally enforceable debt between
him and the complainant at the given point of time and he has not at
all issued the instant cheque towards the discharge of legally
enforceable debt. Accordingly the accused is found guilty for the
offence punishable U/s.138 of the N.I.Act. Hence, I proceed to answer
the point No.1 in Affirmative and Point No.2 in the Negative.
14. Point No.3 : In view of the reasons assigned in Point No.1
and 2, it is clear that the liability of the accused to pay the amount is
proved. The order sheet shows that the accused played all the tactics to
delay the payment. As per the provision U/s 138 of NI Act, the Court
has power to impose fine up to double the cheque amount. Therefore
considering the facts and circumstances of the case, and in view of the
reasons assigned on Point No.1 and 2, I proceed to pass the following:
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused No.3 is hereby convicted for the offence 12 CC.19848/2018 (J) punishable u/s.138 of NI Act, 1881 and sentenced to pay fine of Rs.3,50,000/ (Rupees Three Lakhs Fifty Thousand Only). On deposit of fine amount, the complainant is entitled for compensation of Rs.3,45,000/ (Rupees Three Lakhs Forty Five Thousand only). The remaining balance amount of Rs.5,000/ is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for three months.
The personal bond executed by the accused No.2 and 3 are hereby stands cancelled and cash surety of Rs.6,000/ furnished by the accused No.2 and 3 shall be refunded to them after expiry of appeal period.
Copy of the judgment shall be furnished to the accused at free of cost.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 23th day of September2021.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
13 CC.19848/2018 (J) ANNEXURE Witnesses examined for the Complainant: PW.1 Sukh Bhandari Documents marked for the Complainant: Ex.P.1 Board Resolution.
Ex.P.2 Cheque.
Ex.P.2a Signature of the accused.
Ex.P.3 Bank endorsement.
Ex.P.4 Legal Notice.
Ex.P.5 to P.8 Four Postal Receipts..
Ex.P.9 to P.12 Four Postal Envelopes...
Witnesses examined For Defence: Nil Documents marked for Defence: Nil (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.