Bangalore District Court
Mr. K.Pradeep Kumar vs Mr.Dhananjaya on 27 April, 2022
IN THE COURT OF XXXIII ADDL. CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT,
BENGALURU
: PRESENT :
M.Vijay, BAL, LLB.
XXXIII ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU.
DATED IS THE 27TH DAY OF APRIL, 2022.
C.C.No.50112/2019
COMPLAINANT : Mr. K.Pradeep Kumar
Aged about 50 years,
Son of N.Krishna Murthy,
R/at No.37, 5th Cross, 1st Block,
Akshaynagar, Ramamurthy Nagar,
Bangalore560016.
.Vs.
ACCUSED : Mr.Dhananjaya,
Aged about 44 years,
Son of Late. D.Shamanna,
R/at Bhairaveshwara Nilaya,
No.253, 1st Main, B.Narayanapura,
Bangalore560016.
JUDGMENT
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 Negotiable Instrument Act.
2C.C.No.50112/2019 The factual matrix of the case are as follow
2. The complainant averred that, the accused and wife of the accused were the partners of a firm M/s N.K.Industries engaged in manufacturing of concrete Blocks, tiles, pipes, fabrication of steel windows, doors etc., known to him as a family friend, accordingly, the accused gave a proposal to him and his brother to join as a incoming partners in his partnership firm, accordingly, the complainant and his brother have joined as a incoming partners under deed of reconstitution of partnership dated 01.02.2016 having a profit share of 10% each as per the deed.
3. However, subsequent to the deed of reconstitution of partnership dated 01.02.2016 he and his brother expressed inability to continue as a partners in the said firm due to personal reasons, accordingly he requested the 1st accused to release them from partnership from 26.09.2016, same was agreed by the accused and firm was reconstituted on 26.09.2016 and thereafter the accused and wife of the accused came forward to settle the outstanding profits of share to an extent of Rs.5,00,000/, and the accused issued the cheque 3 C.C.No.50112/2019 pertains to his personal account bearing No.616807 dated 25.02.2017 drawn on ICICI bank, Koramangala Branch, Bangalore, in his favour by endorsing the same in separate receipt dated 25.02.2017.
4. Believing the accused, the complainant presented the cheque through his banker Central Bank of India, Ramamurthynagar Branch, Bangalore for encash, but it was returned unpaid for "Funds Insufficient" vide memo dated 28.02.2017, same was brought to the notice of accused, but the accused avoiding to pay the amount without any reason, accordingly, he was constrained to issue legal notice, demanding the accused to pay the cheque amount through RPAD on 22.03.2017, same was served on the accused on 01.04.2016 despite of its service, the accused neither paid the cheque amount nor replied to his notice, accordingly, the complainant alleged that, the accused failed to pay the cheque amount despite of issued the cheque towards discharge of legally enforceable liability. Hence prayed to convict the accused.
5. The delay was condoned by this court as per the order dated 20.07.2018, later on, the court took 4 C.C.No.50112/2019 cognizance for an o/p/u/s.138 of N.I. Act, by considering the complaint, sworn statement and documents etc., and also ordered to be registered a criminal case against the accused for an o/p/u/s.138 of N.I. Act.
6. In pursuance of summons, the accused appeared through his advocate, he was enlarged on court bail. Substance of plea was recorded, he pleaded not guilty and claims to be tried. The complainant in order to prove its case got examined himself as P.W.1 and placed reliance on Ex.P1 to P.5. Upon closure of complainant side evidence, the accused was examined u/s 313 of Cr.P.C., he denied the incriminating materials on record, however, the accused not choosen to lead his defence evidence.
7. Heard both the sides and also the parties have filed their separate written arguments, the accused placed reliance on decisions reported in 2008 Crl.L.J.452, Criminal Revision Ptn.No.438/17.
8. Perused the materials on record, the following points arise for my determination.
1. Whether the complaint proves beyond all reasonable doubt that, accused have 5 C.C.No.50112/2019 committed an o/p/u/s 138 of Negotiable Instruments Act?"
2. What Order?
9. My findings to the above points are follows;
Point No1: In the Affirmative Point No.2: As per final order for forgoing;
REASONS
10. POINT No.1: The accused denied the issuance of cheque in question as well as compliance of section 138B of NI.Act., ie., service of legal notice and specifically contended that, he had kept the cheque in question to issue it to one Pradeep Kumar, but same has been illegally obtained by the complainant and misused the payee name also happens to be the name of the complainant accordingly, he denied the existence of legally enforceable debt. However, the accused does not dispute the complainant is known to him and he was his expartner and he is one of the partners of M/s N.K.Industries situated at plot No.12E, KIADB Industrial Area, Pilligumpa, Chintamani Road, Hoskote, but he specifically denied as held supra, the existence of legally enforceable debt and service of demand notice. Therefore, it is 6 C.C.No.50112/2019 burden on the complainant to prove the existence of legally enforceable liability and compliance of Section 138B of NI.Act.
11. Firstly, with regard to service of demand notice is concern, it is significant to note that, the complainant had filed this complaint belatedly with an application to condone the delay of 70days. In pursuance of the application, the court was pleased to issue notice to the accused, as per the order sheet on 01.09.2017, the accused appeared through his advocate and also cross examined the complainant on delay application. Later on, upon enquiry the court was pleased to condone delay of 70days and case has been order to be registered against the accused for the o/p/u/s.138 of NI.Act. The accused denied the service of demand notice Ex.P.3 to prove the same, the complainant placed reliance on Ex.P.3 legal notice, Ex.P.4 postal receipt, Ex.P.5 track consignment. The accused vehemently argued in his written argument that, out of two receipts ie., Ex.P.4 one was sent to the address of HAL 2nd stage, another was sent to Hosakote. However, in legal notice the address of the accused has been shown as door No.6, 1st Cross, Lingaiah Palya, 7 C.C.No.50112/2019 Halsooru, Bangalore, which are different address and whereas in cause title another address ie., door No.253, Bhairaveshwara Nilaya, 1st Cross, 1st Main, B.Narayanapura, has been shown which are altogether different and also the name of the father has been wrongly mentioned in the legal notice as Krishnamurthy instead of Shamanna, as such the complainant has given wrong name of the accused father and also Ex.P.5 the postal track consignment is concocted document cannot be believable. In support of his argument, the accused relied upon the two decisions ie., 2008 Crl.L.J.452, Crl.R.P.No.438/2017.
12. On the other hand, the learned counsel for the complainant argued that, though there is different address, but it is not the case of the accused that, the address shown in cause title, legal notice in the postal receipt are incorrect or improper address of the accused. As such, as per Ex.P.5 the item send to the Hosakote has been delivered therefore the complainant has complied section 138B of NI.Act.
13. Considering the rival arguments with the materials on record, it clearly reflects that, though the complainant 8 C.C.No.50112/2019 has shown different address ie., in cause title he has shown residential address, in the legal notice he has shown another residential address and in the postal receipt, he has sent the legal notice to Hosakote address. The accused vehemently cross examined the P.W.1 and suggested in Ex.P.2, P.4 and cause title, the complainant has shown all together different addresses of the accused. However, the very accused has suggested to the P.W.1 that, " it may be true that, we have send the notice to the Hosakote address of the accused, so, as per Ex.P.4 though in the legal notice on the cause title, the complainant has shown different addresses of the accused, the legal notice was sent in undisputed point of time on 27.03.2017, so, what is required u/s 138B of NI.Act., that, the demand notice shall be addressed to the known proper address of the accused, it is not the case of the accused that, the address shown in Ex.P.4 ie., Hosakote address is incorrect or improper address of the accused, even the accused in entire cross examination of P.W.1 nowhere he has denied or disputed the address mentioned by the complainant in 2nd para of complaint ie., partnership firm ie., M/s N.K.Industries not situated at Hosakote, the said address 9 C.C.No.50112/2019 of the partnership firm belongs to the accused not been disputed by the accused.
14. Therefore, though the complainant in cause title as well as in legal notice specified the residential address of the accused, but he also sent the legal notice to the address of the business wherein the accused admittedly has been carrying out his business in the name and style of M/s N.K.Industries at Industrial Area, Pilligunte, Hosakote. So, as per Ex.P.5 the postal track consignment clearly discloses that, the item sent with a reference No.RK372377877IN was delivered on 01.04.2017, the accused though contended that, Ex.P.5 is a concocted document, but, he has not raised his objection at the time of marking of Ex.P.5 even though he was very much present at the time of sworn statement as the accused admittedly appeared before this court much prior to recording of sworn statement and he has cross examined the P.W.1 on the aspect of delay. Therefore, what is required u/s 138B of NI.Act., is the accused must issue demand notice in writing to the last know address of the accused admittedly as suggested by the accused, the complainant has sent legal notice to the Hosakote address 10 C.C.No.50112/2019 of the accused, the said Hosakote address is not incorrect or improper, when such being the case, even though the complainant sent legal notices to two different address of the accused, the notice sent to the business address of the accused ie., Hosakote the legal notice was delivered as per Ex.P.5 which is deemed to have been served unless and until contrary is proved, as per section 27 of General Clauses Act., the accused himself admitted the Hosakote address ie., business area which, the complainant has specifically mentioned the business address of the accused in para No.4 of complaint as well as in his examination chief that has been not disputed by the accused. Further, the address shown in legal notice as well as in cause title admittedly not disputed that, these addresses are not of the accused, even the said address of the accused has mentioned in the deed of reconstitution of partnership dated 01.02.2016, though which is not marked by the complainant, but it is on record, admittedly, the accused not disputed that, the complainant and his brother had joined as a incoming partners in M/s N.K.Industries.
15. So, accordingly the accused failed to brought out the contrary materials that, legal notice issued to the 11 C.C.No.50112/2019 Hosakote address is improper or incorrect, in absence of that, the decisions relied by the accused ie., 2008 Crl.L.J.452, Crl.R.P.No.438/2017 are not helpful to the defence of the accused as in both the cases, the notices was not properly served to the accused, but whereas in this case, the complainant has addressed legal notice to the office of the accused wherein he has carrying out his business, hence the complainant has complied section 138B of NI.Act.
16. Further, so far as the existence of legally enforceable liability is concern, the accused during the course of cross examination of P.W.1 has suggested that, Ex.P.1 cheque pertains to his account and signature found thereon is of him. However, it was kept in the office to issue the same to one Pradeep Kumar that has been illegally obtained by the complainant and misused. So, very suggestion of the accused clearly stands proved the case of the complainant that, the Ex.P.1 cheque and P.1(a) signature found on the cheque is of the accused. Therefore, it is mandatory upon the court to draw presumption in favour of the complainant that, the accused had issued Ex.P.1 cheque towards discharge of legally enforceable liability unless 12 C.C.No.50112/2019 and until contrary is proved, at this stage it is worth to note that, the decisions of Hon'ble Apex Court i.e., Rangappa V/s Mohan has held that;
"Once the cheque relates to the account of the accused and he accept and admit the signature on the said cheque, then initial presumption as contemplated under Sec.139 of N.I. Act has to be raised by the court in favour of the complainant. The presumption referred to in Sec.139 of N.I. Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption."
17. Accordingly, the presumption drawn in favour of the complainant that, hence the onus is on the accused to rebut the presumption that, the cheque has been illegally obtained by the complainant, when it was kept to issue one Pradeep Kumar but not to the complainant Pradeep Kumar, for that during the course of cross examination, the accused suggested that, he had a office at Kasthurinagar till 26.02.2017 he kept Ex.P.1 cheque in the office to issue in favour of one Pradeep Kumar but not 13 C.C.No.50112/2019 in favour of the complainant that has been allegedly obtained by the complainant without any authority and illegally that has been alleging misused by the P.W.1, but same is denied by the complainant and to prove the alleged obtaining of Ex.P.1 cheque by the complainant nothing has brought on record by the accused that, the Ex.P.1 cheque was not issued in favour of the complainant and it is illegally obtained by the complainant in his office. Besides that, the accused has not taken any legal action against the complainant for alleged obtaining the cheque Ex.P.1 illegally from the office of the accused. Therefore, the contention of the accused that, the complainant had illegally obtained the Ex.P.1 cheque from his office cannot be acceptable.
18. Further, the accused asked the P.W.1 what for the cheque has been issued by the accused, for that, the complainant specifically stated, he got retired from partnership, accordingly, the accused liable to pay him Rs.5,00,000/, towards the profit share, for that, the Ex.P.1 has been allegedly issued by the accused in his favour. The learned counsel for the accused in his written argument specifically argued that, the complainant has 14 C.C.No.50112/2019 failed to produce the deed of reconstituted partnership as specified in the complaint as well as affidavit and also receipt dated 25.02.2017, it is true that, the complainant failed to mark the deed of reconstituted of partnership dated 26.09.2016 and also receipt dated 25.02.2017 receipt or endorsement issued by the accused in favour of the complainant. However, non production of two documents is not fatal to the case of the complainant, because it is not the case of the accused that, the complainant was not a incoming partner on 26.09.2016, the complainant not got retired from the partnership. So, in absence of denial, non production of both the documents is not fatal to the case of the complainant.
19. That apart, though the complainant not marked the deed of reconstitution of partnership, but it is on record, it clearly discloses on 26.09.2016, the complainant and his brother came out from the partnership by entering to deed of reconstitution of partnership, the accused does not denied that the complainant had got retire from the partnership firm on 26.09.2016. Therefore, in absence of denial of capital investment made by the complainant ie., as specified from the complainant as well as affidavit in a 15 C.C.No.50112/2019 deed of reconstitution of partnership dated 01.02.2016, though it is not marked by the complainant, but it is on record clearly discloses that, the complainant had entered into a partnership deed as incoming partner entitle for 10% profit share. The accused never denied the entitlement of 10% share profit and also claimed amount by the complainant after got retire from the partnership. So, in absence of specific denial that, he is not liable to pay the said amount, the case of the complainant has to be accepted until contrary is proved as Ex.P.1 cheque is a negotiable instrument having presumptory value u/s 118 A of NI.Act., that, the cheque issued towards discharge of legally enforceable debt or liability or for consideration. So, onus is on the accused to prove that, the complainant is not entitle for any amount as a profit share, but the accused not at all denied the entitlement of profit share by the complainant as well as that, at the time entering deed of reconstitution and partnership deed, the accused have settled all the amount which the complainant had invested in the partnership firm and all his liability and for that, the accused not at all brought out on record that he has settled the entire invested amount by the complainant in partnership. In absence of that, the 16 C.C.No.50112/2019 accused failed to brought out materials to show that, the liability claimed by the complainant was not in existence.
20. Hence, considering the entire materials on record, admittedly the complainant was incoming partners in M/s N.K.Industries run by the accused and the wife of the accused as per the deed of reconstitution of partnership and then the accused does not dispute that, the complainant and brother of the complainant had got retired from partnership as per the deed of reconstitution of dated 26.09.2016 and specifically, the complainant claimed that, the Ex.P.1 cheque issued towards settlement of investment made in partnership firm the Ex.P.1 cheque issued for sum of Rs.5,00,000/, as held supra, the accused does not disputed cheque and signature found on the cheque belongs to him, but he contended it is illegally obtained by the complainant from his office. However, the alleged obtaining of cheque Ex.P.1 by the complainant has to be proved by the accused, but to prove the same nothing has brought on record, even he has not taken any legal action against the complainant for obtaining the cheque illegally. Therefore, in absence of cogent evidence to that effect, the defence of the accused that an after 17 C.C.No.50112/2019 thought, therefore, the accused failed to prove his defence that, the liability claimed by the complainant was not in existence and cheque has not been issued in favour of the complainant and it was issued to one Pradeep Kumar and it was kept in his office to issue another Pradeep Kumar, therefore, the accused failed to probablise his defence, accordingly, not brought out any materials to rebut the presumption drawn in favour of the complainant. Hence, the complainant has proved that, the accused had issued Ex.P.1 cheque towards discharge of legally enforceable liability ie., profit share amount invested by the complainant in partnership run by the accused.
21. So far as, notice issued to wife of the accused is concern, since the wife of the accused is not drawer of the cheque and the complainant has specifically stated, the cheque Ex.P.1 pertaining to personal account of the accused, therefore, non arraying of A2 ie., wife of the accused is not fatal to the case of the complainant. Accordingly, the complainant has proved the ingredients of section 138 of NI.Act., and also compliance of section 138A to C., as such, the accused is found guilty of o/p/u/s 138 of N.I.Act.
18C.C.No.50112/2019
22. So, far as sentence and compensation is concern, it is well settled law an o/p/u/s 138 of N.I.Act., is primarily compensatory in nature, Punitive is secondary. As per the deed of reconstitution of partnership dated 26.09.2016, the complainant admittedly got retire from the partnership run by the accused and the cheque was issued towards settlement of amount in partnership. Therefore, considering the nature of transaction, duration of pendency, I am of the opinion that, if the accused is sentenced to pay fine of Rs.5,55,000/, that would meet the ends of justice, accordingly, the accused is hereby sentenced to pay a fine of Rs.5,55,000/, out of that the complainant is entitled for sum of Rs.5,50,000/, as a compensation as per Sec.357(1) of Cr.P.C. remaining amount of Rs.5,000/, is to be appropriated to the state, in case of default the accused shall under go simple imprisonment for a period of 6 months. Accordingly, I answered the above point in "Affirmative".
23. Point No.2: In view of above finding to Point No.1, I proceed to pass following;
ORDER Acting under section 255(2) of Criminal Procedure Code, the accused convicted for an 19 C.C.No.50112/2019 offence punishable U/s 138 of Negotiable Instrument Act.
The accused sentenced to pay a fine of Rs.5,55,000/ (Rupees Five Lakh Fifty Five Thousand only) in default, the accused shall undergo simple imprisonment for a period of six months. Out of the fine amount received, Rs.5,000/ is to be appropriated to the state and by way of compensation as per the provision u/Sec.357(1) of Cr.P.C., the complainant is entitled for Rs.5,50,000/.
The bail bond and surety bond of the accused shall stand cancelled.
Office is directed to furnish a free copy of the judgement to the accused u/s 363(1) of Cr.P.C.
(Dictated to the Stenographer transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 27th day of April, 2022) (M.Vijay), XXXIII ACMM, BENGALURU.
ANNEXURE
1. Witnesses examined on behalf of Complainant:
P.W.1 : Sri. Pradeep Kumar
20
C.C.No.50112/2019
2. Documents marked on behalf of complainant:
Ex.P.1 : Original cheque Ex.P.1(a) : Signature of the accused Ex.P.2 : Bank return memo Ex.P.3 : Office copy of the legal notice Ex.P.4 : Four postal receipts Ex.P.5 : Postal track
3. Witnesses examined on behalf of Accused:
NIL
4. Documents marked on behalf of Accused:
NIL (M.Vijay), XXXIII ACMM, BENGALURU.