Bangalore District Court
M/S.Kamal Electronics (India) vs M/S.Eltech Power Controls on 4 February, 2023
C.C.NO.11571/2022
0
KABC030299692022
Presented on : 13-04-2022
Registered on : 13-04-2022
Decided on : 04-02-2023
Duration : 0 years, 9 months, 21 days
IN THE COURT OF THE XXVIII ADDL. CHIEF
METROPOLITAN MAGISTRATE NRUPATHUNGA ROAD,
BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
BA.,LLB.,LL.M
XXVIII A.C.M.M, Bengaluru City.
DATED: THIS THE 04 th DAY OF FEBRUARY-2023
C.C.NO.11571/2022
Complainant: M/s.Kamal Electronics (India),
Rep by its Managing Director,
Mr.M.Rakesh Kumar S/o Manickchand,
Office situated at No.14, Lakshmi Building,
1st Floor, J.C.Road, above Bank of Baroda,
Bangalore-560002.
(By Sri.Kamalji & Rudresha.S.L.,
Advocates.,)
V/s
Accused: 1. M/s.Eltech Power Controls,
No.86, Bhairaveshwara Industrial Estates,
Hegganahalli Peenya II Stage,
Bangalore-560091.
2. Arvind Kulkarni
Prop: M/s.Eltech Power Controls,
No.86, Bhairaveshwara Industrial Estates,
Hegganahalli Peenya II Stage,
Bangalore-560091.
C.C.NO.11571/2022
1
And also at No.15/16, 2nd Cross,
Sai Baba Layout, Andrahalli Main Road,
Near Anupama School, Peenya II Stage,
Bangalore-560091.
(By Sri.N.Santhosh Kumar,Adv.,)
:JUDGMENT:
This case arises out of the private complaint filed by the complainant against the accused under section 200 of Cr.P.C., for an offence punishable under section 138 of Negotiable Instruments Act.
2. The case of the complainant's in brief is as under:
It is submitted by the complainant is that the complainant is a dealer of electronic tests and measuring equipment's and other allied materials. The accused No.2 is responsible and liable for the day to day affairs of the accused No.1 firm. The accused No.2 is authorized signatory of the accused No.1. The accused No.2 is the proprietor and authorized signatory of the accused No.1. The accused used to purchase digital testing and measuring materials from the complainant and the accused have a running account with the complainant since from 01.04.2017 to till date.
C.C.NO.11571/2022 2 It is further stated that as per the ledger account in books of complainant, on 07.12.2019 the accused have to pay outstanding balance due amount of Rs.1,44,058/- to the complainant. The complainant approached the accused several time for making the payment, but the accused above herein have still not paid any amount. The accused are avoiding to pay on some pretext and other grounds. It is further stated that as per business usage and custom the accused have not paid the invoice amount within 30 days from date of invoice but accused used to pay as per their whims and fancies because of running account. Further to discharge the said amount, the accused had issued cheques and have been continuously dishonoring the same. It is further stated that as per the business usage and custom the accused are liable to pay interest at rare of 24% p.a on the outstanding due amount. As such accused are liable to pay an amount of Rs.1,44,058/- as per the memo of calculation.
3. It is further stated that the accused finally to discharge the aforesaid outstanding amount had issued C.C.NO.11571/2022 3 the cheque bearing No.290148 dated: 10.12.2020 of Rs.1,00,000/- (Rupees One Lakh only) and cheque bearing No.290419 dated: 15.12.2020 of Rs.44,058/- (Rupees Forty Four Thousand and Fifty Eight only), both drawn on Corporation Bank, Peenya Branch, Bangalore-560058 in favour of the complainant. Further the accused have assured the complainant that the above cheques will be honored on due date of its presentation. On the assurance of the accused and as per the request of the accused the complainant presented the above said cheques for encashment through its banker viz., Bank of Maharashtra, Chamrajpet Branch, Bangalore-560058. The said cheques were returned on 06.02.2021 with an endorsement "Funds Insufficient" in account of the accused. On the same day the bank issued an intimation memo to the complainant. Thereafter, the complainant issued a legal notice on 01.03.2022 as contemplated under Section 138 of the Negotiable Instruments Act to the accused stating about the fact of dishonor of said cheques and calling upon the accused C.C.NO.11571/2022 4 to make good the payment thereon within 15 days from the date of receipt of the said notice. The said notice was duly served to the accused and the accused have acknowledged the receipt of the said notice. After receipt of the legal notice the accused accused neither reply the notice nor paid the cheques amount to the complainant. As such, the accused has committed an offence punishable under section 138 of N.I.Act. Hence, the present complaint came to be filed before this court on 12.04.2021.
4. After the complaint was filed, the cognizance of the offence cited therein was taken and it was registered as P.C.R.No.16513/2021. Sworn statement of the complainant was recorded. Since there were sufficient materials to proceed against the accused, an order was passed on 13.04.2022 to register the case in Reg.No.III.
5. Thereafter, summons was issued to the accused and he appeared before the court through advocate and secured bail. He was furnished its necessary papers as complied under section 208 of C.C.NO.11571/2022 5 Cr.P.C. Thereafter, the plea of the accused was recorded by the court. He has pleaded not guilty and claimed to be tried.
6. The complainant in support of its case have examined its Managing Partner as PW.1 and got marked total 14 documents at Ex.P.1 to 14 and closed its side. The learned counsel for the accused has not cross examine the P.W.1. Hence, case is posted for statement under section 313 of Cr.P.C.
7. After closer of the evidence of the complainant, the statement of the accused under section 313 of Cr.P.C, was recorded. He has denied the incriminating evidence appearing against him. In his defense the accused has failed to lead any oral or documentary evidence.
8. Heard the arguments on both the sides and perused the material placed on record.
9. Upon hearing the arguments and on perusal of the material placed on record, the following points arise for my consideration:
C.C.NO.11571/2022 6
1.Whether the complainant proves the existence of legally enforceable debt/ liability.?
2. Whether the complainant further proves that the accused had issued the cheques-Ex.P.1 & 2, towards the discharge of the said legally enforceable debt/ liability.?
3.Whether the complainant further proves that, Ex.P.1 and 2 were dishonored for "Funds Insufficient" in the account of the accused and thereafter the accused had failed to repay the same within the statutory period, inspite of receipt of legal notice.?
4.Whether the accused have thus committed an offence punishable under section 138 of N.I.Act.?
5. What order or sentence?
10. My answers to the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: In the Affirmative Point No.4: In the Affirmative Point No.5: As per final order, for the following:
C.C.NO.11571/2022 7 REASONS
11.POINT NO.1 TO 4: These points are inter- related to each other and finding given on any one point will bearing on the others. Hence, in order to avoid repetition of facts and evidence, I have taken these points altogether for common discussion. The case of the complainant is that he was acquainted with the accused. Further the complainant is a dealer of electronic tests and measuring equipment's and other allied materials. The accused No.2 is responsible and liable for the day to day affairs of the accused No.1 firm. The accused No.2 is authorized signatory of the accused No.1. The accused used to purchase digital testing and measuring materials from the complainant and the accused have a running account with the complainant since from 01.04.2017 to till date. Further as per the ledger account in books of complainant, on 07.12.2019 the accused have to pay outstanding balance due amount of Rs.1,44,058/- to the complainant. The complainant approached the accused several time for making the payment, but the accused C.C.NO.11571/2022 8 above herein have still not paid any amount. The accused are avoiding to pay on some pretext and other grounds. Further as per business usage and custom the accused have not paid the invoice amount within 30 days from date of invoice but accused used to pay as per their whims and fancies because of running account. Further to discharge the said amount, the accused had issued cheques and have been continuously dishonoring the same. Further as per the business usage and custom the accused are liable to pay interest at rare of 24% p.a on the outstanding due amount. As such accused are liable to pay an amount of Rs.1,44,058/- and as per the memo of calculation.
12. Further the accused finally to discharge the aforesaid outstanding amount had issued the cheque bearing No.290148 dated: 10.12.2020 of Rs.1,00,000/- and cheque bearing No.290419 dated: 15.12.2020 of Rs.44,058/-, both drawn on Corporation Bank, Peenya Branch, Bangalore-560058 in favour of the complainant. Further the accused have assured the complainant that the above cheques will be honored on C.C.NO.11571/2022 9 due date of its presentation. On the assurance of the accused and as per the request of the accused the complainant presented the above said cheques for encashment through its banker viz., Bank of Maharashtra, Chamrajpet Branch, Bangalore-560058. But said cheques were returned on 06.02.2021 with an endorsement "Funds Insufficient" in account of the accused. On the same day the bank issued an intimation memo to the complainant. Thereafter, the complainant issued a legal notice on 01.03.2022 as contemplated under Section 138 of the Negotiable Instruments Act to the accused stating about the fact of dishonor of said cheques and calling upon the accused to make good the payment thereon within 15 days from the date of receipt of the said notice. The said notice was duly served to the accused and the accused have acknowledged the receipt of the said notice. After receipt of the legal notice the accused accused neither reply the notice nor paid the cheques amount to the complainant. Hence, the present complaint came to be filed before this court.
C.C.NO.11571/2022 10
13. In support of the case, the complainant's have examined its Managing Partner as P.W.1 and 14 documents were marked at Ex.P.1 to 14. In the chief examination P.W.1 has repeated the contents taken by the complainant in the complaint. Ex.P.1 & 2 are the cheques issued by the accused in favour of the complainant on 10.12.2020 for a sum of Rs.1,00,000/- and on 15.12.2020 for a sum of Rs.44,058/- respectively. Ex.P.1(a) & 2(a) are the signatures of the accused No.2. Ex.P.3 & 4 are the bank memos informing of the dishonor of the cheques. Ex.P.5 is the office copy of legal notice. Ex.P.6 is the four postal receipts. Ex.P.7 to 10 are the Returned postal covers. Ex.P.7(a) to Ex.P.10(a) are the Returned legal notices. Ex.P.11 is the Account ledger. Ex.P.12 is the four Tax Invoices. Ex.P.13 is the Authorization. Ex.P.14 is the complaint. The learned counsel for the accused did not cross examined PW1.
14. Further, in order to prove the guilt of the accused for an offence punishable under section 138 of Negotiable Instrument Act, 1881, the complainant is C.C.NO.11571/2022 11 required to prove the following ingredients beyond reasonable doubt:
i. The accused had issued a cheques in favour of complainant.
ii. The said cheques have been issued in discharge of a legally recoverable debt or liability and is for consideration. iii. The said cheques have been dishonored on presentation.
iv. The accused have failed to make payment of cheques amount within statutory period of service of legal notice served to them by complainant.
15. In order to prove the case of the complainant, the Managing Partner of the complainant is examined himself as PW.1 in the form of affidavit and reiterated almost all the contents of complaint and got marked the 14 documents at Ex.P.1 to 14.
16. During the course of proceedings, both the counsels and parties have filed a joint memo/consent memo. The contents of the joint memo/consent memo are as follows:
"1. The accused admit that the accused has to pay an outstanding amount (along with interest) of Rs.1,44,058/-(Rupees one lakh forty four thousand and fifty eight only) to the complainant herein towards the supply of digital testing and C.C.NO.11571/2022 12 measuring materials (digital measuring meters). The accused had issued the cheques bearing No.290419 dated: 15.12.2020 of Rs.44,058/- (rupees Forty four thousand and fifty eight only) and cheque bearing No.290418 dated:
10.12.2020 of Rs.1,00,000/- both drawn on Corporation Bank, Peenya Branch, Bangalore-
560058 in favour of the complainant to discharge aforesaid outstanding amount. Further, the accused was not able to honor the cheque due to personal reasons.
2. The accused has paid Rs.20,000/- as part of the outstanding amount on 21.11.2022 through DD bearing No.787559 dated: 21.11.2022 drawn on Union Bank of India, Peenya Branch, Bangalore in favour of the complainant. Further the accused agreed to pay balance amount of Rs.1,24,058/- (Rupees one lakh twenty four thousand and fifty eight only).
3. The accused admit that the complainant had issued the demand legal notice to the accused and the said legal notice was duly served to the accused herein. The accused agreed to pay the amount of Rs.1,15,000/- (Rupees One Lakh Fifteen Thousand only) to the complaint as a full and final settlement in four installments stated below.
4. The complainant and the accused admit that, in addition that, the accused has agreed to pay C.C.NO.11571/2022 13 amount of Rs.1,15,000/- (Rupees one lakhs fifteen thousand only) to the complainant as full and final settlement of the aforesaid amount. Further, the accused shall pay the aforesaid amount of Rs.1,15,000/- (Rupees one lakhs fifteen thousand only) in 4 monthly installments as mentioned below:
Sl.No. Date Amount
1 25.02.2023 Rs.35,000/-
2 12.03.2023 Rs.35,000/-
3 25.03.2023 Rs.25,000/-
4 12.04.2023 Rs.20,000/-
The accused has to pay total Rs.1,15,000/- amount to the complainant
5. If the accused fails to pay the aforesaid installment amounts, then this court may issue NBW and FLW against the accused. The accused agrees to pay the aforesaid installment amounts without fail to the complainant failing which this court and the complainant may take necessary action.
Therefore, the complainant and the accused prays this court may please to take on record the terms of joint memo and pass judgment regarding the same.
17. By filing the above said joint memo/consent memo the accused have admitted the legally C.C.NO.11571/2022 14 enforceable debt/liability as stated by the complainant in the complaint.
18. Considering the joint memo/consent memo and submission of learned counsel for the complainant as well as learned counsel for the accused, this court deem it proper to grant time to the accused for repayment of the amount to the complainant. Thus, material available on record clearly discloses that the complainant have complied all the ingredients of Negotiable Instrument Act. In view of forgoing discussions, this court is of the opinion that the complainant have established that the accused have committed an offence punishable under section 138 of Negotiable Instrument Act. The joint memo/consent memo filed by the complainant and the accused is sufficient. Accordingly, I answer point No.1 to 4 in the "Affirmative".
19. POINT NO.5 : In view of the reasons stated and discussed on point No.1 to 4, I proceed to pass the following:
C.C.NO.11571/2022 15 ORDER Acting under section 255(2) of Criminal Procedure Code, the accused are hereby convicted for an offence punishable under section 138 of Negotiable Instrument Act and is sentence to pay a fine of Rs.1,15,000/- (Rupees one lakh fifteen thousand) only.
The bail bond and personal bond of the accused hereby stands cancelled.
When the said amount is deposited by the accused same shall be paid to the complainant as compensation.
Terms and conditions of the joint memo/consent memo becomes part and parcel of this order.
In default of payment of the fine amount as agreed upon, the accused shall under simple imprisonment for 6 months.
(Dictated to the stenographer directly on computer typed by her, corrected by me and then judgment pronounced in the open court on 04 th day of February 2023) Digitally signed by SOUBHAGYA B SOUBHAGYA BHUSHER B BHUSHER Date:
2023.02.06 10:37:52 +0530 (Soubhagya.B.Bhusher) XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.
C.C.NO.11571/2022 16 ANNEXURE List of witness examined on behalf of the complainant:
PW.1 : Sri.Rakesh Kumar List of documents marked on behalf of the complainant:
Ex.P.1 & 2 : Cheques Ex.P.1(a) & 2(a) : Signatures of the accused.
Ex.P.3 & 4 : Bank endorsements. Ex.P.5 : Office copy of the legal notice. Ex.P.6 : 4 Postal receipts Ex.P.7 to 10 : Returned postal covers.
Ex.P.7(a) to10(a) : Returned legal notices.
Ex.P.11 : Account ledger. Ex.P.12 : 4 Tax invoices. Ex.P.13 : Authorization. Ex.P.14 : Complaint.
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
-Nil-Digitally signed by SOUBHAGYA
SOUBHAGYA B BHUSHER
B BHUSHER Date:
2023.02.06
10:38:02 +0530
XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru. C.C.NO.11571/2022 17 04.02.2023 (Judgment pronounced in the Open Court Vide Separate Sheet) :ORDER:
Acting under section 255(2) of Criminal Procedure Code, the accused are hereby convicted for an offence punishable under section 138 of Negotiable Instrument Act and is sentence to pay a fine of Rs.1,15,000/- (Rupees one lakh fifteen thousand) only.
The bail bond and personal bond of the accused hereby stands cancelled.
When the said amount is deposited by the accused same shall be paid to the complainant as compensation.
C.C.NO.11571/2022 18 Terms and conditions of the joint memo/consent memo becomes part and parcel of this order.
In default of payment of the fine amount as agreed upon, the accused shall under simple imprisonment for 6 months.
XXVIII Addl. Chief Metropolitan Magistrate, Bengaluru.