Bangalore District Court
Human Interface Consulting vs M/S. Mphasis Limited on 15 July, 2015
IN THE COURT OF THE LIX ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY
Dated this the 15th day of July 2015
PRESENT
************
Sri Deshpande.G.S, B.com. LL.M
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY
Crl. Appeal No.1197/2014
APPELLANT: 1. Human Interface Consulting
India Pvt.Ltd.,
No.17/3, Ali Askar Road,
Bangalore - 560 042.
Rep.by its Managing Director,
Sri Bharath G.V.
2. Sri Bharath G.V.
S/o Veeresh Goddu Karegouda,
Aged about 41 years
Managing Director of
Human Interface Consulting India
Pvt.Ltd.,
No.17/3, Ali Askar Road,
Bangalore - 560 042.
-Vs-
RESPONDENT: M/s. Mphasis Limited
Bagmane Layrel, Tower A,
1st Floor
Bagmane Technology Park,
Byrasandra, C.V.Raman Nagar,
2 Crl.Appeal.No.1197/2014
Bangalore - 560 093.
Rep.by its Assistant Manager
(Legal) - Sri V.J. Anand,
Major.
JUDGMENT
The accused being aggrieved by the Order of conviction and sentence passed by the XXI Addl. Chief Metropolitan Magistrate, Bangalore dated 27.09.2014 in the Judgment in C.C.No.17852/2013 has filed this Appeal under Section 374 of Cr.P.C. on the various grounds mentioned in the Appeal Memo.
2. In this Appeal, the parties will be referred as complainant and accused as stated in the Trial Court, for the sake of convenience.
3. The complainant has filed the private complaint against the accused alleging that, they have committed the offence under Sec.138 of N.I.Act. The case of the complainant in brief is that, the complainant is a Company registered under the Companies Act, 1956 and doing the business of providing Information Technology Services. Accused No.1 is 3 Crl.Appeal.No.1197/2014 the Human Resources Service Provider and accused No.2 is its Managing Director. The accused have entered into an agreement with the complainant for providing Human Resources Services to the complainant Company. The complainant used to pay the commission to the accused for providing the said service. While making internal audit of the complainant Company during the year 2012, it is noticed that, the accused have submitted multiple Invoices for the same amount and have drawn excess amount of Rs.52,72,746/-. This fact was brought to the notice of the accused and they have agreed to refund the said amount. Towards discharge of the above said amount, the accused No.2 being the Managing Director of accused No.1 has issued cheque for Rs.2,00,000/- dtd.05.01.2013 to the complainant Company. The complainant has presented this cheque to the bank for encashment and same was dishonoured with endorsement that the accused were not having sufficient funds in their account on 09.01.2013. Thereafter, the complainant has issued legal notice to the accused to pay the cheque amount on 25.01.2013 by RPAD. Said notice is 4 Crl.Appeal.No.1197/2014 served on the accused. Even then, the accused have not paid the cheque amount to the complainant. Therefore, the accused have committed the offence under Sec.138 of N.I.Act.
4. After taking cognizance in the case, sworn statement of complainant was recorded. Thereafter, summons was issued to the accused. Accordingly, they have appeared in the case through their advocate and released on bail. Plea of the accused was recorded.
5. Before the trial court, on behalf of complainant one witness is examined as P.W.1 and documents produced by the complainant are marked as Ex.P.1 to P.8. On behalf of accused no witnesses examined and no documents marked.
6. After hearing the arguments of both the sides, the Learned Magistrate has convicted the accused for the offence punishable under Section 138 of N.I.Act and sentenced them to pay fine of Rs.2,00,000/- and in default to undergo simple imprisonment for the period of six months. It is further held that, the complainant is entitled for compensation of Rs.1,90,000/- out of the above said fine amount. 5 Crl.Appeal.No.1197/2014
7. Being aggrieved by this Judgment, the accused has filed this Appeal under Sec.374 of Cr.P.C.
8. After issuance of Notice, the complainant has appeared in the Appeal through its advocate. The records of the trial court are secured.
9. Heard the arguments of both the sides. They have filed their written arguments. The advocate for the appellant/accused submitted that, the accused are not liable to pay any amount to the complainant. The Arbitration Proceeding is pending between the parties in respect of the amount claiming by the complainant. Therefore, simultaneous proceedings cannot be initiated against the accused in respect of recovery of the above said amount. The complainant witness - P.W.1 in his cross-examination has clearly admitted that, there is no recoverable debt to be paid by the accused. This admission itself is sufficient to acquit the accused. The alleged cheque has been issued as a security. There is no liability on the part of the accused to pay the above said amount to the complainant. These 6 Crl.Appeal.No.1197/2014 aspects are not considered by the Learned Magistrate. The learned magistrate has not properly appreciated the evidence on record and has come to the wrong conclusion. From the evidence on record it is made out that, the accused has not committed the offence punishable under Section 138 of N.I.Act. Therefore, the accused are entitled for acquittal. Hence, it is prayed to allow the appeal and to set-aside the impugned judgment and to acquit the accused.
10. On the other hand, the advocate for the complainant submitted that, the accused have entered into an agreement providing, Human Resources Service to the complainant. The accused used to receive the money from the complainant by submitting Invoices. The accused have made multiple claims in respect of same amount. They have drawn excess amount of Rs.52,72,746/-. This fact was brought to the notice of the accused. The accused No.2 has agreed to repay the said amount in installments. Accordingly, the accused have issued cheque for Rs.2,00,000/- towards discharge of the above said amount and the same was dishonoured after presenting to the bank for encashment. 7 Crl.Appeal.No.1197/2014 Even after issuance of notice, the accused have not paid the cheque amount to the complainant. Even they have not replied the said notice. There is no document to show that, the said cheque was obtained from the accused by way of security. Therefore, contention of the accused that, the said cheque was issued by way of security cannot be believed. Simultaneously arbitration proceeding and proceeding under Sec.138of N.I.Act are maintainable. From the evidence on record it is made out that, the accused have committed the offence under Sec.138 of N.I.Act. The learned magistrate has properly appreciated the evidence on record and has come to the right conclusion. The learned magistrate has not committed any error in convicting the accused for the offence under Sec.138 of N.I.Act. Impugned Judgment is not illegal and as such it is not liable to be set-aside. Hence, the advocate for the complainant prayed to dismiss the appeal.
11. In view of the rival contentions, the following points that arise for my consideration in the Appeal are :-
1. Whether the complainant proves beyond all reasonable doubt that the accused 8 Crl.Appeal.No.1197/2014 have committed the offence punishable under Section 138 of N.I. Act ?
2. Whether the impugned Judgment is liable to be set-aside?
3. What Order?
12. My finding 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
13. POINT Nos.1 AND 2 :- The complainant has filed the private complaint before the Trial Court alleging that, the accused have committed the offence punishable under Section 138 of N.I. Act.
14. The case of the complainant in brief is that, the accused have entered into an agreement with the complainant Company for providing service of Human Resources. The complainant used to pay the commission to the accused as and when invoices are submitted. During the 9 Crl.Appeal.No.1197/2014 year 2012 while making internal audit of the complainant Company, it is noticed that, the accused have drawn excess amount of Rs.52,72,746/- by submitting dual invoices etc., The complainant Company has requested the accused to refund the said amount. At that time, the accused No.2 being the Managing Director of accused No.1, Company has issued cheque for Rs.2,00,000/- towards discharge of part payment of the above said amount. The complainant has presented the said cheque to the bank for encashment and the same was dishonoured with endorsement that, the accused have no sufficient funds in their account. Thereafter, the complainant has issued legal notice to the accused to pay the cheque amount by RPAD. The accused have received the said notice, but not paid the cheque amount to the complainant. Therefore, the complainant has filed the private complaint against the accused alleging that, they have committed the offence punishable under Sec.138 of N.I.Act.
15. Complainant witness - P.W.1 in his evidence has deposed the above said facts. The cheque issued by the accused is produced and marked as Ex.P.4. This cheque for 10 Crl.Appeal.No.1197/2014 Rs.2,00,000/- is issued by the accused in favour of complainant Company. As per Ex.P.5 bank endorsement, this cheque is dishonoured with endorsement that the accused are not having sufficient funds in their account. The complainant has issued legal notice to the accused to pay the cheque amount by RPAD as per Ex.P.6. Said notice is served on the accused.
16. The accused has taken the contention in the case that, the said cheque was issued to the complainant by way of security. There is no document to show that, the said cheque was issued to the complainant as a security. In the absence of document it is not possible to believe the version of the accused that, the said cheque was issued to the complainant as a security.
17. The contention of the accused is that, the Arbitration proceeding is pending between the complainant and the accused in respect of recovery of above said amount of Rs.52,72,746/- and therefore, the complaint filed against the accused in respect of offence under Sec.138 of N.I.Act is 11 Crl.Appeal.No.1197/2014 not maintainable. This contention also cannot be accepted. Since the accused have not paid the above said amount, the complainant has initiated Arbitration proceeding for recovery of money. Since the cheque issued by the accused is dishonoured, the complaint is filed against the accused in respect of offence under Sec.138 of N.I.Act. Cause of action for filing both the cases are different. Both proceedings can simultaneously initiated against the accused. There is no prohibition for the same. Hence, the contention taken by the accused in this regard cannot be accepted.
18. There is a presumption under Sec.118 and 139 of N.I.Act that, the said cheque was issued towards discharge of debt or liability. After issuance of notice, the accused has not replied the said notice. If really, the accused was not liable to pay said amount, he would have definitely replied the said notice. The accused has not adduced his evidence. He has not rebutted the case of the complainant. There are no reasons to disbelieve the evidence of P.W.1 and Ex.P.1 to P.8. 12 Crl.Appeal.No.1197/2014
19. From the evidence on record, it is made out that, the accused have issued the said cheque to the complainant towards discharge of part payment of the said amount and the said cheque was dishonoured and the accused have not paid the cheque amount to the complainant even in spite of receipt of notice and thereby, the accused have committed the offence under Sec.138 of N.I.Act. The learned magistrate has properly appreciated the evidence on record and has come to the right conclusion that, the accused have committed the offence under Sec.138 of N.I.Act and considering the cheque amount, fine amount of Rs.1,90,000/- is imposed. The impugned judgment is not illegal and as such, it is not liable to be set aside. There is no merit in this appeal. Hence, this appeal is liable to be dismissed. Therefore, points No.1 and 2 are answered accordingly.
20. POINT NO.3: - In view of the above discussions and my findings to the points No.1 and 2, I proceed to pass the following:
ORDER The appeal filed by the accused under Sec.374 of Cr.P.C. is dismissed.13 Crl.Appeal.No.1197/2014
The Order of conviction and sentence passed by XXI ACMM, Bangalore, in the Judgment in C.C. No.17852/2013 dated 27.09.2014 is hereby confirmed. Send the copy of the Judgment along with records to the Lower Court forthwith.
(Dictated to the Judgment-writer directly on the computer, typed by her, corrected and then pronounced by me in the open court on this the 15th day of July 2015).
(DESHPANDE.G.S.) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.14 Crl.Appeal.No.1197/2014
Judgment pronounced in the open Court [vide separate Judgment] with the following operative portion:
The appeal filed by the accused under Sec.374 of Cr.P.C. is dismissed.
The Order of conviction and sentence passed by XXI ACMM, Bangalore, in the Judgment in C.C. No.17852/2013 dated 27.09.2014 is hereby confirmed.
Send the copy of the Judgment along with records to the Lower Court forthwith.
(DESHPANDE.G.S.) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
15 Crl.Appeal.No.1197/2014