Bangalore District Court
M/S.Brisk Tech Engineers vs M/S.Rohan Industries on 18 August, 2022
KABC030357392018
Presented on : 18-05-2018
Registered on : 18-05-2018
Decided on : 18-08-2022
Duration : 4 years, 3 months, 0 days
IN THE COURT OF XX ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BENGALURU CITY
PRESENT: BHOLA PANDIT,
B.Com.,LL.M.,
XX ADDL. C.M.M.
Bengaluru.
Dated this the 18th day of August 2022
C.C.No.12711/2018
Complainant : M/s.Brisk Tech Engineers,
Represented by its proprietor,
Anand Kumar,
S/o Venkataramana,
Age 48 years,
Having its Office at No.3,
14th Cross,
2nd Main, Andrahalli Main Road,
Heggenahalli,
Viswaneedam Post,
Bengaluru- 560 091.
2 C.C.12711/2018
{ By Sri.C.Vasudevan - Advocate }
Vs.
Accused : M/s.Rohan Industries,
Represented by its proprietor,
Sri.Monnappa Patil,
Age 40 years,
R/at.No.120/1A, Shinoli MIDC,
Tal Chandgad, Kolhapur Dt,
Maharashtra State- 416 507
{ By Sri.S.R.Shinde - Advocate }
Offence complained : U/S. 138 of N.I. Act.,
Plea of accused : Pleaded not guilty
Final Order : Accused is Convicted
Date of Order : 18-08-2022
JUDGMENT
3 C.C.12711/2018 The present complaint is filed under section 2(d) read with section 200 of code of criminal procedure against the accused seeking to punish him for the offence punishable under section 138 of the Negotiable Instruments Act ( in short referred as "N.I. Act").
02. The factual matrix of the complaint is summarized as under;
It is averred in the complaint that, the complainant is the manufacturing and selling various kinds of Capital Equipments under the name and style as M/s.Brisk Tech Engineers and during the course of business, the complainant has supplied a CNC Turning Center ( Spectra XL ) under invoice No.17 and Delivery Challan No.17 dated 28.06.2017 for Rs.15,50,043/-. The accused was using the above said machine for his production purpose from the date using the above said machine for his production purpose from the date of delivery and was postponing the 4 C.C.12711/2018 payment of the consideration amount for one or the other pretext. After six months of purchase of the machine and having used the same, the accused has paid the advance amount of Rs.2,50,000/- and the balance by way of cheques bearing No.652171 dated 26.12.2017 and the cheque bearing No.652170 dated 27.12.2017 for Rs.6,50,000/- each and both the cheques were drawn on Corporation Bank, Thilakavadi Branch, Belgam and towards the payment of said invoice and cheque bearing No.391346 dated 20.01.2018 for Rs.1,89,000/- drawn on State bank of India, Jayanagar Branch, Belgaum - 591109 as the difference in Sales Tax since, the accused could not produce C-Form in time, totaling to Rs.14,89,000/-. It is further case of the complainant that, he has presented the aforesaid three cheques to his banker for encashment, as per banker's memos, the first two cheques bearing No.652171 and 652170 have returned unpaid due to "Payment Stopped" and another cheque bearing 5 C.C.12711/2018 No.391346 returned due to "Funds Insufficient" as per banker's memos dated 06.03.2018. On 13.03.218, demand notice was issued to the accused by RPAD. The demand notice issued by RPAD has been duly served on accused on 20.03.2018. Inspite of service of legal notice, the accused neither has paid the cheques amount nor has given any reply. On these grounds, it is sought to convict the accused for the offence punishable under section 138 of NI Act and grant compensation as per section 357 of Code of Criminal Procedure.
03. On presentation of complaint, this court has verified the averments of complaint along with records and thereby had taken cognizance for the offence punishable under section 138 of NI Act. Thereby, as per the verdict of the Hon'ble Apex court reported in AIR 2014 SC 1983 in the case of Indian Bank Association and others V/s Union of India and others, the sworn statement of the 6 C.C.12711/2018 complainant has been recorded as PW.1 and got exhibited twelve documents at Ex.P.01 to 12. Having been made out the prima-facie case, the complaint has been registered in Register No. III and issued process against the accused.
04. In response to the summons, the accused put his appearance before the court through his counsel and filed bail application under section 436 of Code of Criminal Procedure, the accused has been enlarged on bail. The substance of accusation has been recorded and read over to the accused, he pleaded not guilty and intends to put forth his defense. On filing application by the complainant under section 145(1) of NI Act, sworn statement of the complainant has been treated as examination in chief. Similarly, on filing application under section 145(2) of NI Act, the accused has been permitted to cross examine PW.1. On completion of the trial of the complainant's side, the statement of accused under section 313 of Code of Criminal 7 C.C.12711/2018 Procedure has been recorded and read over to the accused, the incriminating material found in the trial of the case of the complainant. The accused has denied the same in toto and gave explanation stating that, notice received and reply notice issued. The accused also wants to lead his defense evidence. In order to disprove the case of the complainant, the accused did not enter into the witness box and submitted that, he has no defense evidence. Further, accused has got marked in all six documents at Ex.D.1 to 6 by confronting to PW.1 during his cross examination.
05. Learned counsel for the complainant has filed written argument. Perused the materials available on record. No arguments addressed On behalf of the accused.
06. The following points that arise for my consideration are as under;
POINTS 8 C.C.12711/2018
1. Does the complainant proves beyond reasonable doubts that, the accused has issued the cheques bearing No.652171 dated 26.12.2017 and the cheque bearing No.652170 dated 27.12.2017 for Rs.6,50,000/- each and both the cheques were drawn on Corporation Bank, Thilakavadi Branch, Belgam andcheque bearing No.391346 dated 20.01.2018 for Rs.1,89,000/-
towards the discharge of his lawful liability of the complainant and when the said cheque was presented for encashment, it was returned unpaid due to "Payment Stopped" & "Funds Insufficient" in the account of the drawer as per banker's memo and inspite of issuance of demand notice , the accused has failed to pay the cheque amount, thereby has committed the offence punishable under section 138 of NI Act?
2. What Order or sentence ?
07. My findings to the above points is as follows;
1. Point No.1: In the affirmative
2. Point No.2: As per final order for the following;
REASONS 9 C.C.12711/2018
08. POINT No.1: It is the specific case of the complainant that, the accused has issued the disputed cheques in favour of the complainant and when the said cheques were presented for encashment, it returned unpaid due to "Payment Stopped" & "Funds Insufficient"
in the account of the drawer and inspite of receipt of demand notice, the accused has failed to make the payment of the cheques amount.
09. To substantiate and establish this fact before the court beyond reasonable doubts as per the verdict of the Hon'ble Apex court in the case of Indian Bank Association and others V/s Union of India and others , the sworn statement of the complainant has been treated as affidavit evidence. In his affidavit evidence, PW.1 has replicated the averments of the complainant. To corroborate the evidence of PW.1, the complainant has placed on record in all twelve documents. Ex.P.1 to 3 are the disputed cheques dated 10 C.C.12711/2018 26.12.2017, 27.12.2017 & 20.01.2018, Ex.P.1 (a) to 3(a) are the signatures of accused, Ex.P.4 to 6 are the banker's memo dated 06.03.2018, which shows the reasons for the return of the cheque at Ex.P.1 to 3 for unpaid is as "Payment Stopped" & "Funds Insufficient" , Ex.P.7 is the legal notice dated 13.03.2018 demanding for payment of cheques amount by replicating the averments of complaint and which was duly served to the accused on 20.03.2018. Ex.P.8 is the the postal receipt about sending legal notice at Ex.P.7, Ex.P.9 is the postal acknowledgement about receipt of the demand notice, Ex.P.10 is the reply notice issued by the accused, Ex.P.11 is the invoice and Ex.P.12 is the delivery challan. PW.1 has been substantially cross examined by the counsel of accused.
10. Today i.e., on 18.08.2022, the Learned counsel for the complainant has filed written argument. In the written argument it contended that, he has replicated the 11 C.C.12711/2018 averments of the complaint. Further contended that, the complainant proved that, there is a legally recoverable debt due from the accused. On the other hand, the accused has not produced any documents to prove that, there is no legally recoverable debt due to the complainant. Further, when the accused has been admitting the issuance of cheques and his signatures there on, the legal presumption should be drawn in favour of the complainant, that the cheque at Ex.P.1 to 3 cheques have been issued towards the discharge of legal debt or liability . He further stated in his written argument that, the oral evidence of accused is not sufficient to rebut the statutory presumptions under sections 118(a) & 139 of NI Act. Therefore, He sought to convict the accused.
Per contra, accused side oral argument taken as not advanced giving liberty to file written argument. 12 C.C.12711/2018
11. To disprove the case of the complainant and also to rebut the mandatory presumptions which could be drawn under section 139 of NI Act in favour of the complainant and also to establish his probable defense and to prove the same by leading evidence to the touch stone of preponderance of probabilities, the accused did not choose to enter into the witness box and to lead his oral substantive evidence. Instead, the accused has got marked in all six documents at Ex.D.1 to 6 by confronting to PW.1 during his cross examination. In the land mark judgment of the Hon'ble Apex Court reported in AIR 2019 SC 1983 , in the case of Basalingappa Vs. Mudibasappa in para No.19, the top court of the country held that;
"Applying the rule of the word 'proved' under section 3 of Evidence Act, it became evident that in a trial under section 138, a prosecution will have to be made out every negotiable instrument was made or drawn for consideration and that it was extended for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the 13 C.C.12711/2018 complainant discharges burden to prove that instrument was executed by the accused, the rules of presumptions under section 118 & 139 help him to shift the burden on the accused.
The presumptions will live, exists & survive & shall and only when the contrary is proved by the accused, that is the cheque was not issued for consideration and in discharge of any debt or liability. A presumption itself is not evidence, but only makes a prima-facie case for a party to whose benefits it exists.
The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insists in every case the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated, but bare denial of the passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is possible has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration & debt did not exists or their non- existence was 14 C.C.12711/2018 so probable, that a prudent man would under the circumstances of the case act upon the plea that they did not exists."
In the light of the precedent of the above judgment, now it is well settled law that, in order to prove the case of the complainant and also to rebut the statutory presumption under section 118(a) & 139 of NI Act, which fallen in favour of the complainant, it is not mandatory on the accused to enter into the witness box and to depose in support of of his defense. The accused can very well rely upon the oral substantive evidence of complainant which has been culled out during the course of cross examination and in addition to the evidence elicited from the mouth of PW.1. The accused can rely upon or he can produce the documentary evidence.
12. In the instant case on hand, by looking to the entire cross examination of PW.1 and by considering the reply notice given to the demand notice produced at Ex.P. 10. It 15 C.C.12711/2018 is the specific defense of the accused is that, the accused is not disputing his purchase of one CNS Turning Machine- Spectra XL from the complainant in the month of June 2017. He is also not disputing his making payment of advance amount of Rs.2,50,000/- to the complainant on 21.06.2017 through RTGS. The main contention and defense of the accused is that, after installation of the purchased CNS Turning Machine- Spectra XL in his industry, he has found problems of hydroelectric presser automatic increases and decreases, so also problem of more vibration during running of the said machine, accordingly he has sent a mail about mentioning the problems and asking for the solution of the said problem within the warranty period and after receiving the said mail, one meeting was held between the complainant and the accused on 20.12.2017 at Shinoli Budruk, Tal Chandgad and in the said meeting, the complainant has agreed that, FANUC CNC Controller of the machine is having problem 16 C.C.12711/2018 and also promised to sort out the same and believing the said promise of the complainant, he has issued the disputed cheques for the said amount. It is his further defense that, till 2nd January 2018, the complainant has not sort out the aforesaid problem, therefore the accused has given intimation to his banker for stop payment of cheques bearing Nos.652170 & 652171. It is his further defense that, on 07.01.2018, another meeting was held between himself and the complainant at the aforesaid place and in the said meeting, the complainant had agreed to take back the CNC Machine as its problem of the irrecoverable and accordingly the accused has agreed to take back the said machine and would return cheques bearing No.652171 and 652170 to the accused and on the same day the accused has removed FANUC CNC Controller (which is like hart of machine) from that machine and taken by the complainant. Therefore, the question of payment does not arise at all. It is his further defense that, the complainant himself is liable 17 C.C.12711/2018 to return his advance amount of Rs.2,50,000/- together with interest at the rate of 9% p.a., from 21.06.2017 to till its realization. Two mail copies marked at Ex.D.1 & 2 subject to condition as per section 65-B of Evidence Act. Although, both the parties have not advanced their oral argument in respect of reliability of these documents at Ex.D.1 & 2 as a secondary evidence as per section 63 of Evidence Act and even the complainant in his affidavit evidence has not denied about sending these two mails under Ex.D.1 & 2, even then I am of the considered opinion that, it is necessary to give findings about reliability of these two documents as a secondary evidence. These two documents at Ex.D.1 & 2 have been marked subject to provisions of section 65-B of Evidence Act. For the benefit of discussion and for better understanding, the said provision has been reproduced as under;
Section 65B in The Indian Evidence Act, 1872 1[65B. Admissibility of electronic records.-- 18 C.C.12711/2018
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:--
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into 19 C.C.12711/2018 the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause
(a) of sub-section (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, 20 C.C.12711/2018 all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-
section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
21 C.C.12711/2018(5) For the purposes of this section,--
(a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.--For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.] 22 C.C.12711/2018 Since the introduction of Information Technology of 2000 and now a days a trend has become among, general public or commonly relying the electronic records as a proof of facts. Therefore, the Evidence Act came to be amended accordingly, section 65-A and section 65-B of the provisions has been inserted and as per section 65-B of the Evidence Act, any information contained in a Electronic record, which is printed on a paper stored, recorded or copied in optical or magnetic media produced by the computer shall be deemed to be also a document, if the conditions mentioned in the sections are satisfied. The Electronic records may be CD, VCD, WHAT'S APP CHATS OR MAILS SENT AND any persons intends to give a statement in evidence under the proceedings of any case by virtue of this sections a certificate under section 65-B (4) of evidence Act be produced. The two judges bench of Hon'ble Apex Court in the case of Shafi Mohammed Vs. State of Himachal Pradesh, it is held that;
23 C.C.12711/2018
" Section 65A & 65 B:-
Section 65A & 65B are procedured provisions. Even when the evidence submitted is genuine & important for the case, the question of whether the court would accept the evidence or not would depend on the facts and circumstances of the cases. Further held that, section 65A & 65B cannot be considered the complete law regarding admissibility of the electronic record. Further held that, if the evidence is relevant the complete admissibility of the electronic evidence cannot be precluded.
Thus, the procedure mentioned under section 65B(4) cannot be made mandatory to be adhered to in every case."
13. However, the Hon'ble Apex Court in the case of Arjun Panditrao Khotkar Vs. Kailas Khunsan Rao Gorantyal & Ors reported in 2020 (3) SCC 216, wherein it is held that;
" In order to rely upon any electronic records as a secondary evidence , the production of certificate under section 65-B (4) of Evidence Act is necessary. Further clarified that, if the original electronic record itself is produced then, the production of certificate under section 65-B(4) of Evidence Act, is not necessary and thereby has 24 C.C.12711/2018 ordered the judgment of the two judges of the bench of the Hon'ble Apex Court in the case of Shafi Mohammed Vs. State of Himachal Pradesh is not correct by relying the 3 Judges Bench Judgment in the case of Anvar P.V. Vs. P.K.Basheer reported in 2014(1)) SCC 473".
In the light of the verdict of the Hon'ble Apex Court in the case of Arjun Pandit Rao case, now it is well settled rule that, the electronic records produced before the court without producing certificate under section 65-B (4) of Evidence Act shall not be reliable as a secondary evidence under section 63 of Evidence Act. Therefore, in the case on hand, though Ex.D.1 & 2 the mail copies are not supported by certificate under section 65-B of Evidence Act, got marked subject to objection. But, they cannot be reliable in evidence as a secondary evidence even though, these two documents are not disputed by the complainant.
14. Before to appreciate the oral and documentary evidence relied by the complainant and accused , it is 25 C.C.12711/2018 necessary to know as to whether the present complaint is filed in consonance with the provisions of section 138 of NI Act or not?. The cheques bears dated 26.12.2017, 27.12.2017 & 20.01.2018, as per Ex.P.1 to 3 and as per Ex.P.4 to 6 the banker's memos of these cheques were presented for encashment on 05.03.2018 within the period of their validity. On perusal of the demand notice at Ex.P.7 dated 13.03.2018 discloses that, from the date of receipt of banker's endorsements within one month, the demand notice has been issued as per Ex.P.7, the said demand notice was duly served upon the accused and as per Ex.P.10 on 04.04.2018, the accused has given reply. The present complaint is filed on 30.04.2018. By considering these material records, it appears that, the present complaint filed in compliance of section 138 of NI Act.
26 C.C.12711/2018
15. As per sections 118(a) & 139 of NI Act are two important provisions and they provides for raising mandatory presumptions in favour of the complainant until the contrary is proved by the accused. Even in the catena of decisions i.e., in the case of Rangappa Vs. Mohan reported in 2010(11) SCC 441, in the case of Bir Singh Vs. Mukesh Kumar reported in 2019(4) SCC 197, in the case of APS Forex Services (P) Ltd., Vs.Shakthi International Fashion Linkers reported in 2020(12) SCC 724, in the case of Rajeshbai Muljibhai Patel Vs. State of Gujarat, reported in 2020(3) SCC 794, in the case of Triyambak S. Hegde Vs. Sripad reported in Live Law 2021 SC 492 and it is laid down that, " Once the issuance of cheque and the signature thereon is admitted by the accused, the court is required to raise presumption in favour of the complainant stating that, the accused has issued the cheque for some consideration towards discharge of his legal debt or liability of the complainant and that the complainant is the 27 C.C.12711/2018 due holder of the said cheque. The burden shifts on the accused to rebut the statutory presumptions under sections 118(a) & 139 of NI Act." Now, it is well established law that, the presumption mandated by section 139 of NI Act, thus indeed includes the existence of legally enforceable debt or liability and it is open for the accused to raise a probable defense wherein the existence of legally enforceable debt or liability can be contested and he shall prove before the court on preponderance of probabilities, only thereupon a statutory presumption raised in favour of the complainant stands rebutted.
16. Looking to the cross examination of PW.1, nowhere the issuance of cheques at Ex.P. 1 to 3 and signatures of accused on Ex.P.1 to 3 are not disputed. Further, in his reply notice in para No.4 at Ex.P.10, the accused has admitted his issuance of cheques at Ex.P.1 to 3 in favour of the complainant. Therefore, I am of the considered 28 C.C.12711/2018 opinion that, the accused has clearly admitted his issuance of cheques at Ex.P.1 to 3 and his signatures thereon. Therefore, as per the above relied verdicts of the Hon'ble Apex Court, the statutory presumptions under sections 118(a) & 139 of NI Act shall be drawn in favour of the complainant. Now, the burden shifts on the accused to rebut the said statutory presumption by raising a probable defense and to prove the same on preponderance of probabilities. In order to rebut the said statutory presumption under section 118(a) & 139 of NI Act, the accused did not enter into the witness box, but he has produced the documents at Ex.D.1 to 6 only on confrontation with PW.1. So for as, the documents at Ex.D.1 & 2 are concerned this court has already given findings above. That apart, the accused has also substantially cross examined PW.1. By seeing the case put forth by the complainant and also scrutinizing the reply notice given by the accused at Ex.P.10, the defense of the 29 C.C.12711/2018 accused before the court is that, on 28.06.2017, he has purchased CNC Turning Machine Spectra XL from the complainant and the said fact has been admitted by PW.1 during his cross examination. The main defense of the accused is that, after purchase of the said machine, when it was installed in the Industry of the accused and problem of hydroelectric presser automatic increases and decreases, so also problem of more vibration during running of the said machine and in this regard, the accused has sent mail to the complainant for which the complainant's staff has also visited the Industry of accused and did not rectify the said problem. It is further defense of the accused is that, a meeting was also held as per Ex.D.4 and in the said meeting, the complainant has agreed to take back defective machine from the accused, but not done so. Therefore, he is entitle for the repayment of advance amount of Rs.2,50,000/- as has been paid as per Ex.D.3 together with nominal interest. In order to prove this defense before the 30 C.C.12711/2018 court, though the accused did not enter into the witness box, but during the cross examination a suggestion has been made to PW.1 stating that, inspite of the mail sent by the accused on 03.01.2018, no response was found from the complainant's side, for the said suggestion PW.1 replied that, he sent his staff to the industry of accused to service the purchased machine, but the staff was not allowed to service the machine. During further cross examination of PW.1, he admitted about his receiving advance amount of Rs.2,50,000/- as per Ex.D.3 as a part payment of purchase of the said machine. Further, PW.1 has admitted that, on 07.01.2018, a meeting was held between himself and the accused and at that time, he agreed to return the disputed three cheques after getting back of the defective machine. But, since the accused did not take the purchased machine, the complainant has presented for encashment the cheques. For the sake of benefit of discussion, the relevant 31 C.C.12711/2018 portion of the cross examination of the PW.1, is reproduced as under;
......."ನನತರ ನನನ ಮತನತ ಆರರರಪ ಸನಸಸ ದ.07.01.2018 ರನದನ ಮರಟನಗ ನಡಸ ಯನತರತರಪಕರಣವನನ ನ ತಗದನಕರನಡನ ಆರರರಪಯ 3 ಚಕನ ಕ ಗಳನನ ನ ಹನದರನಗಸನತತ ರ ನನದನ ಒಪಪದ ಎನದರ ಸರ. ಸಕ ಮನನದನವರದನ, ಅಪ ಡರಷನ ಗಗ ಯನತರತರಪಕರಣವನನ ನ ಆರರರಪ ಸನಸಸ ನಮಮ ಸನಸಸಗ ಹನದರನಗಸಲಲ ಎನದನ ನನಡಯನತತರ. ದ.07.01.2018 ರ ಮರಟನಗನ ನಡವಳಗಳನನ ನ ಸಕ ಒಪಪರನವದರನದ ನಡ.4 ಎನದನ ಗನರನತಸಲಯತನ."......
By this cross examination of PW.1 coupled with the documents at Ex.D.4 it appears that, on 07.01.2018, a meeting was held between complainant and accused in the industry of accused and that time, a proceedings has been recorded under Ex.D.4 and in this proceedings, the accused being proprietor of Rohan Industries has agreed to sent back the purchased machine to the complainant for its up gradation within one week at their own risk of documentations. This Ex.D.4 note No.1 stipulates the condition No.1 is " If C FORM NOT RECEING FROM ROHAN INDUSTRIES BEFORE 20.01.2018, IT WOULD 32 C.C.12711/2018 DEPOSIT THE MENTIONED CHEQUE (CHEQUE BEARING NO. 391346 DATE 20.01.2018 WITH AN AMOUNT OF Rs.1,89,000/-) IN THE BANK, which is specifically for c form. In order to complying this condition. The accused himself produced the document at Ex.D.6, which is the form No.C and it was issued on 29.03.2019 much later of morethan one year as per its stipulated in Note No.1 of Ex.D.4. Therefore, this condition has been violated by the accused. Note No.4 of Ex.D.4 stipulates the last term and condition between the parties that, the complainant's company shall take the CNC system and will return back other two cheques bearing No.652171 and 652170. In order to fulfill and comply this condition, the accused not produced a single document before the court that, he has sent back the purchased machine to the complainant.
17. By considering the oral evidence of PW.1 and also documents produced at Ex.D.4 it can be held that, when 33 C.C.12711/2018 the accused himself not produced the returned machine to the complainant and also has failed to produce Form No.C within 20.01.2018 under such circumstances, it cannot be held that, the complainant has violated the terms and conditions stipulated under Ex.D.4. Further, the accused neither has adduced oral evidence nor has produced any copy of the agreement for the purchase of CNC Turning Center ( Spectra XL ) by stipulating the terms and conditions of the sale. In support of his defense that, because of the aforesaid alleged problem found in the CNC machine, the complainant is not entitle to encash the cheques produced at Ex.P.1 to 3. The accused has placed on record, the certified copy of order of the Hon'ble District Consumer Disputes Reddressal Forum, Kolhapur, which is marked at Ex.D.5, this order do not contemplates in detail what was the order passed.
34 C.C.12711/2018
18. Section 45 of sale of goods at 1930 defines, who is called "unpaid seller", for the sake of discussion and for better understanding and for the benefit of discussion, section 45 of the said Act 1930, is reproduced as under;
" Section 45:- The seller of goods is deemed to be an "Unpaid Seller" within the meaning of this Act.
(a). When whole of the price has not been paid or tendered.
(b). When a bill of exchange or other negotiable instrument has been received as conditional payment & the condition on which it was received has not been fulfilled by reason of the dishonor of the instrument or other wise.
Section 55 of Act 1930 contemplates the provision for the seller of the goods to recover the price of the goods sold out from the buyer. For the sake of discussion and for better understanding and for the benefit of discussion, section 55 of the said Act 1930, is reproduced as under; 35 C.C.12711/2018
" Section 55:- Where under a contract of sale of the property in the goods has passed to the buyer & the buyer wrongly neglects or refused to pay for the goods, according to the term of the contract, the seller may sue him for the price of the goods."
In one of the judgment reported in AIR 2001 Delhi 357 in the case of M/S. KIG Systo Limited M/s.Fujistu ICIM Limited, by interpreting the relevant provision of the sale of Goods Act, it is held as under;
" When buyer asserts that goods are defective, it is not open to him to withhold the payment once the delivery is accepted."
In the instant case on hand, the accused has failed to raise probable defense in respect of the document produced at Ex.D.4 and also to prove the same on preponderance of probabilities by leading his oral evidence and thereby has failed to rebut the statutory presumption under section 118(a) & 139 of NI Act in favour of the complainant. Hence, I answered point No.1 in the affirmative.
36 C.C.12711/2018
19. POINT NO.2: In view of the reasons stated and discussed above, the complainant has proved the guilt of the accused punishable under section 138 of N.I. Act It is worth to note that, the offence is of the nature of civil wrong. Hence, it is proper to award sentence of fine, instead of awarding sentence of imprisonment. Accordingly, this court proceed to pass the following;
ORDER Acting under section 255 (2) of Criminal Procedure Code, accused is hereby convicted for the offence punishable under section 138 of Negotiable Instrument Act and sentenced to pay fine of Rs.16,95,000/-( Rupees Sixteen Lakhs Ninety Five Thousand only).
In default, he shall undergo simple imprisonment for 6 (Six) months.
37 C.C.12711/2018Acting under section 357(1) of code of criminal procedure, it is ordered that an amount of Rs,16,90,000/-
( Rupees Sixteen Lakhs Ninety Thousand only ), there from shall be paid to the complainant as a
compensation, remaining fine amount of Rs.5,000/- ( Rupees Five Thousand only ) is defrayed to the state for the expenses incurred in the prosecution.
The bail bond of accused and
surety stands canceled subject to
appeal period.
38 C.C.12711/2018
Supply free copy of judgment to the
accused.
{Dictated to the stenographer, transcribed and computerized by her, revised corrected and then pronounced in the open court on this 18th day of August 2022}.
(BHOLA PANDIT) XX ACMM, Bengaluru.
ANNEXURE List of witnesses examined on behalf of complainant:
P.W.1 M/s.Brisk Tech Engineers,
Represented by its proprietor,
Anand Kumar,
List of documents produced on behalf of complainant:
Ex.P.1 to 3 Cheques
Ex.P. 1(a) to 3(a) Signatures of the accused
Ex.P. 4 to 6 Bank endorsements
Ex.P. 7 Copy of the legal notice
39 C.C.12711/2018
Ex.P. 8 Postal receipt
Ex.P. 9 Postal acknowledgement
Ex.P.10 Reply notice
Ex.P.11 Invoice
Ex.P.12 Delivery Challan
List of witnesses examined on behalf of accused:
-NIL-
List of documents produced on behalf of accused:
Ex.D.1 & 2 e- Mails
Ex.D.3 Receipt voucher
Ex.D.4 Meeting letter
Ex.D.5 Order in CC.No.18/226
Ex.D.6 Form-C
XX A.C.M.M.,
Bengaluru.