Bangalore District Court
M/S. Jain Structural Roofing vs M/S Entec Engineering Corp on 3 September, 2024
KABC0C0042582021
IN THE COURT OF XXXIII ADDL. CHIEF JUDICIAL
MAGISTRATE, MAYO HALL UNIT, BENGALURU
-: PRESENT:-
Sri P.S. Santhosh Kumar, M.Com., LL.M.,
XXXIII ADDL.CHIEF JUDICIAL MAGISTRATE,
BENGALURU.
DATED THIS THE 3RD DAY OF SEPTEMBER 2024
C.C.NO.51288/2021
COMPLAINANT : M/s. Jain Structural Roofing,
No.21, N.R. Road,
Bengaluru-560002,
Represented by its
proprietor/Authorized signatory,
Sri. Dilip Kumar K.
Vs.
ACCUSED : M/s Entec Engineering Corp,
No.876, 14th Cross,
Mahalakshmi Layout,
Bangalore-560066.
Represented by its Partner,
Mr. Manjesh Kumar Belli.
J U D G M E N T
The complainant has filed this private complaint U/s.200 of Cr.P.C., against the accused for the offence punishable U/s 138 of the Negotiable Instruments Act.
2C.C.NO.51288/2020
2. The factual matrix of the case are as follows:-
The accused had purchased (1) FRP Sheet GI Type (EIE Layer) in 170 no's at the rate of 963/pre sheet, (2) FRP Trapezodial Type (EIE Layer) 33 in no's at the rate of 2349,73/pre sheet along with applicable GST at the rate of 18% under the invoice bearing No.00461, e-way bill No.010255626989 on 03.10.2020 and the said materials supplied to accused at Hoodi Construction circle and after supply of the said materials to the accused, the accused issued a cheque bearing No.113099 dated 05.10.2020 for Rs.1,14,676/- drawn on Union Bank of India, Chandra Layout, Bangalore. Later, one of the partners of the accused Further it is relevant to mention here that informed the complainant to present it on 16.10.2020 through e-mail and thereafter again the accused requested not to present the cheque agreeing to clear the balance by the end of the day through an email dated 16.12.2020 and the accused had sent one more e-mail on 29.10.2020 stating the balance payment will be as 3 C.C.NO.51288/2020 soon as possible due to festival season they are not available this week. Thereafter, on 18.11.2020 the accused instructed the complainant to present the said cheque for encashment and accordingly, the complainant presented the said cheque for encashment through its banker Canara Bank, Frazer Town branch, Bangalore, on 18.11.2020. But, it came to be dishonored for the reason "Funds Insufficient" vide memo dated 19.11.2020. Hence, the complainant got issued legal notice to the accused on 09.12.2020 demanding the payment of cheque amount. Inspite of service of said notice, the accused did not pay the cheque amount. Hence, complainant has filed this complaint against the accused for the offence punishable U/s 138 of Negotiable Instruments Act.
3. Based on the complaint, the sworn statement affidavit, the documents etc., the court took cognizance of an offence punishable under Sec.138 of the Negotiable Instruments Act by following the guidelines of Apex Court issued in Indian Bank 4 C.C.NO.51288/2020 Association case and ordered to register a criminal case against the accused for the offence punishable U/s.138 of Negotiable Instruments Act.
4. In pursuance of summons, the accused appeared through his counsel, he was enlarged on court bail, further, substance of plea was recorded, the accused pleaded not guilty and claimed to be tried. The complainant in order to prove his case, got examined himself as P.W1 and got marked Ex.P1 to P7. Upon closure of complainant's side evidence, the court examined the accused U/s 313 of Cr.P.C, the accused has denied the incriminating materials appearing against him and has not lead any defence evidence.
5. Heard the counsel for the complainant. Inspite of sufficient opportunity the counsel for the accused did not address his arguments. Perused the materials available on record.
6. The following points would arise for my consideration:-
5C.C.NO.51288/2020
1. Whether the complainant proves beyond all reasonable doubts that the accused has committed an o/p/u/s 138 of the Negotiable Instruments Act?
2. What Order?
7. My findings on the above points are as follows;
Point No1: In the Affirmative, Point No.2: As per final order, for the following, R E A S O N S
8. POINT No.1: I have gone through the materials available on record. The learned counsel for the complainant has argued reiterating complaint allegations during his arguments. The counsel for the complainant has argued that the accused had purchased the materials worth Rs.2,84,676/- under invoice No.00461 and towards part payment of the 6 C.C.NO.51288/2020 said amount, he had issued the cheque in question in favour of the complainant and it came to be dishonored for the reason "funds insufficient" and inspite of intimating the said fact through legal notice dated 09.12.2020, he did not pay the cheque amount and hence, the accused is liable to be convicted for the offence punishable U/Sec.138 of Negotiable Instruments Act. On the other hand, the counsel for the accused did not address his arguments.
9. The complainant, who has been examined as PW1, has reiterated the allegations made in the complaint in his chief examination also and in addition to it, she has produced 7 documents which are marked as Ex.P1 to 7.
10. Ex.P1 is the GST registration certificate of the complainant firm. Ex.P2 is the invoice bearing No.00461 dated 03.10.2020 which goes to show that the accused firm had bought the materials mentioned therein from the complainant to the tune of 7 C.C.NO.51288/2020 Rs.2,84,676/-. Ex.P3 is the cheque in question dated 05.10.2020 drawn on Union Bank of India, Chandra Layout branch, Bengaluru, for Rs.1,14,676/-. Ex.P4 is the endorsement dated 19.11.2020 said to have been issued by the complainant's banker which go to show that the cheque in question was dishonored for the reason "funds insufficient". Ex.P5 is the copy of the legal notice said to have been sent by the complainant to the accused intimating the fact of dishonor of the cheque to the accused and demanding payment of cheque amount. Ex.P6 is the postal receipt and Ex.P7 is the postal acknowledgment which goes to show that the statutory notice sent to the accused was served on the accused.
11. It is relevant to mention here that the accused though appeared before this court, did not cross examine PW1 inspite of sufficient opportunity given to him. Further during examination of the accused U/Sec.313 of Cr.P.C., though he has stated that the complainant has claimed wrong amount than it was 8 C.C.NO.51288/2020 agreed and that it was closed in a different manner, he did not adduce any cogent oral and documentary evidence in support of it. Further, in this case the accused has not issued even a reply notice to the legal notice sent by the complainant. Thereby the accused has not disputed the service of legal notice as per Ex.P5 on the accused as well as issuance of Ex.P3 in favour of complainant and his signature on it. Such being the case, once the accused accepts and admits the signature on the cheque, the initial presumption as contemplated U/S 139 of the N.I Act has to be raised by the court in favour of the complainant, however, the accused is entitled to rebut the said presumption as held in the case of Sri Rangappa Vs. Sri Mohan by the Hon'ble Supreme Court reported in AIR 2010 SC 1898.
12. Upon going through the oral and documentary evidence adduced by the parties it is relevant to mention here that at the first instance the accused has not denied the issuance of cheque at Ex.P3 and his 9 C.C.NO.51288/2020 signature appearing on it. There is nothing on record which goes to show the specific defence of the accused against the allegations made in the complaint. Though he has stated that the complainant has claimed wrong amount than it was agreed and that it was closed in a different manner during his examination u/Sec.313 of Cr.P.C., there is nothing on record which would support his defence. Further the accused has not cross examined the PW1 and has not lead any defence evidence. As such, considering the oral and documentary evidence adduced by the complainant and other materials available on record, I am of the opinion that the complainant has successfully established his case beyond all reasonable doubts and the accused has failed to rebut the presumptions available in favour of the complainant. In the facts and circumstances of the case, I am of the opinion that the complainant has successfully established his case beyond all reasonable doubts and hence the accused is to be held guilty for the 10 C.C.NO.51288/2020 commission of the offence punishable under Sec.138 of Negotiable Instruments Act.
13. It is relevant to mention here that the accused having issued cheque at Ex.P3 in favour of the complainant, the accused has failed to pay the cheque amount and hence, the complainant is to be suitably compensated for the delay caused by the accused in its repayment. Further the punishment prescribed for the offence U/s.138 of Negotiable Instruments Act is imprisonment for a period which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. Considering the facts and circumstances of this case, nature, year of the transaction, nature of the instrument involved, cost of litigation and the rate of interest proposed by Hon'ble Supreme Court in 2012 (1) SCC 260 (R.Vijayan Vs Baby), I am of the opinion that it is just and desirable to impose fine of Rs.1,65,000/- and out of the said amount, it seems to be proper to award a sum of Rs.1,60,000/- as compensation to the 11 C.C.NO.51288/2020 complainant as provided U/s.357(1) of Cr.P.C and the remaining sum of Rs.5,000/- shall go to the State towards expenses. With these observations, my findings on Point No.1 is in the Affirmative.
14. Point No.2: In view of my findings on Point No.1, I proceed to pass following;
O R D E R Acting u/s. 255(2) of Cr.P.C., the accused is hereby convicted for the offence punishable u/s.138 of Negotiable Instrument Act,1881.
The accused is hereby sentenced to pay a fine of Rs.1,65,000/-. In default, the accused shall undergo simple imprisonment for 6 months.
Out of the fine amount, Rs.5,000/-
shall be paid to the State towards
expenses and remaining amount of
12
C.C.NO.51288/2020
Rs.1,60,000/- to the complainant as
compensation as per the provisions of u/Sec.357(1) of Cr.P.C..
Further, it is made clear that in view of proviso to Sec.421(1) of Cr.P.C, the accused would not be absolved from his liability to pay compensation amount of Rs.1,60,000/- awarded u/s. 357 of Cr.P.C. even if he undergoes the default sentence.
The bail bond and cash surety of the accused shall stand hereby continued till the appeal period is over.
Office is directed to furnish free copy of this judgment to the accused forthwith.
(Typed to my dictation by the Stenographer, directly over Computer, corrected, signed and then pronounced by me in the open court, on this the 3rd day of September 2024) SANTHOSH Digitally signed by SANTHOSH KUMAR P S KUMAR P S Date: 2024.09.05 12:33:23 +0530 (P.S. SANTHOSH KUMAR) XXXIII ACJM, BENGALURU.
13C.C.NO.51288/2020 A N N E X U R E
1.Witnesses examined on behalf of Complainant:
P.W.1 : Sri. Dilip Kumar K.
2.Documents marked on behalf of complainant:
Ex.P.1 : GST registration certificate Ex.P.2 : Tax invoice Ex.P.3 : Original cheque Ex.P.3(a) : Signature of the accused Ex.P.4 : Bank return memo Ex.P.5 : Office copy of the legal notice Ex.P.6 : Postal receipt Ex.P.7 : Postal acknowledgment
3.Witnesses examined on behalf of accused:
NIL
4.Documents marked on behalf of Accused:
NIL Digitally signed by SANTHOSH SANTHOSH KUMAR P S KUMAR P S Date: 2024.09.05 12:33:12 +0530 (P.S. SANTHOSH KUMAR) XXXIII ACJM, BENGALURU.