Bangalore District Court
Sri.Bindu Industries vs S.P.M. India Ltd Unit Ii on 30 December, 2021
1 C.C.No.11076/19 J
THE COURT OF THE XVI ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU CITY
Dated: This the 30th day of December, 2021
Present: SRI.S.B.HANDRAL, B.Sc., L.L.B(SPL).,
XVI Addl.C.M.M., Bengaluru City.
JUDGMENT U/S 355 OF Cr.P.C.,
Case No. : C.C.No.11076/2019
Complainant : Sri.Bindu Industries,
having its office No.42/4,
1st Main Road, Opp : Petrol Bunk,
Subramanyapura Road,
Muneshwara Nagar,
B.S.K. II Stage,
Bangalore 560 061.
Rep.by its proprietor,
Sri.M.Rajendra,
S/o. Muniswamy Naidu,
Age 53 years.
(Rep. by Sri.H.G.Lakshmana Gowda,
Adv.,)
Vs
Accused : 1. S.P.M. India Ltd Unit II,
Sy.No.168/1, Machohalli,
Magadi Main Road,
Next to Vani International School,
Dasanapura Hobli,
Bangalore 560 091.
Rep by its Director,
Sri.G.D.Venkatesh
2. Sri.G.D.Venkatesh,
S/o. G.V.Damodara Naidu,
2 C.C.No.11076/19 J
Aged about 55 years,
Residing at No.179, 1st Cross,
1st Block, Banashankari 3rd Stage,
3rd Phase,
Bangalore 560 085.
(Rep. by Sri N.Anand, Adv.,)
Case instituted : 25.04.2019
Offence complained : U/s 138 of N.I Act
of
Plea of Accused : Pleaded not guilty
Final Order : Accused No.1 and 2 are
convicted
Date of order : 30.12.2021
JUDGMENT
The Complainant has filed this complaint against the Accused No.1 and 2 for the offence punishable u/Sec.138 of the Negotiable Instruments Act.
2. Briefly stated the case of the Complainant is that, complainant is the Manufacturer in all kinds of precision Machined items, all kinds of components in Metal, Plastic, Rubber, Press Tools, Injection Moulds, Turrent Punches, SPM'S etc, in the name and style of Bindu Industries and complainant further contends that, during the course of his business the accused have approached him and placed an order to manufacturer of various kinds of precision machines 3 C.C.No.11076/19 J items, all kinds of components in metal, plastic, rubber, press tools, injection moulds, turrent punches, SPM'S etc, accordingly the complainant has been supplying the precision machined items, all kinds of components in metal, plastic , rubber, press tools, injection moulds, turrent punches, SPM'S etc to the factory of accused since several years.
3. The complainant further contends that, from August 2014 to December 2014 he supplied the precision machines items, all kinds of components in metal, plastic, rubber, press tools, injection moulds, turrent punches, SPM'S etc, precision machined items, all kinds of components in manufacturer of various kinds of precision machines metal, plastic , rubber, press tools, injection moulds, turrent punches, SPM'S etc,to the accused through various tax invoices/bills ie., Sl. Invoice Invoice Amount Purchase Order Order Date Delivery No No Date No. Challan no.
1 324 13.8.2014 43,521.00 SCP/SPM-2/14- 1.8.2014 325 15/0904 2 351 7.10.2014 40,556.00 SCP/SPM-2/14- 22.9.2014 352 15/1230 3 362 3.11.2014 23,593.00 SCP/SPM-2/14- 20.10.2014 363 15/1319 4 363 3.11.2014 19,013.00 SCP/SPM-2/14- 20.10.2014 364 15/1318 4 C.C.No.11076/19 J 5 367 17.11.2014 3,950.00 SCP/SPM-2/14- 10.11.2014 368 15/1388 6 366 17.11.2014 18,228.00 SCP/SPM-2/14- 10.11.2014 367 15/1389 7 376 18.12.2014 2,337.00 SCP/SPM-2/14- 18.12.2014 377 15/1484 Total Invoice Amount Rs.1,51,198.00/-
in all total for sum of Rs.1,51,198/ and in order to discharge of said liability the accused has issued a cheque bearing No.000035 dt:10.03.2019 drawn on HDFC Bank, Kathriguppe Main Road, 3 rd Phase, 3rd State, 4th Block, Banashankari, Bangalore 85 for a sum of Rs.1,50,000/, as per the instructions of the accused, he has presented the said cheque for encashment through his banker ie., Canara Bank, Uttarahalli Branch, Bangalore but the said cheque was returned on 18.3.2019 with a shara "Funds Insufficient" , complainant immediately contacted the accused and informed him about the return of the said cheque and demanded for payment but the accused instead of making the payment started giving evasive replies. The complainant further contends that, thereafter he got issued a legal notice dt:22.3.2019 through RPAD calling upon him to pay the cheques amount within 15 days from the date of receipt of the notice, and the said notice was returned unserved as 5 C.C.No.11076/19 J "Unclaimed returned to sender" on 25.03.2019 but inspite of issuance of legal notice, the accused failed to settle/pay the cheques amount or replied to the legal notice. Hence the present case is filed by the complainant against the accused praying that the Accused be summoned, tried and punished in accordance with Sec.138 of the Negotiable Instruments Act.
4. Before issuing process against the accused, the proprietor of Complainant is examined as PW.1 and has filed his affidavitinlieu of sworn statement, in which, he has reiterated the averments of the complaint. In support of his oral evidence, P.W.1 has produced and relied upon the following documentary evidence as per Ex.P1 to P.33, ie.,Original Cheque dt:
10.03.2019 as per Ex.P1, the signature on the said cheque identified by C.W.1 is that of the Accused as per Ex.P.1(a), the Bank Memo as per Ex.P.2, the office copy of the Legal Notice as per Ex.P.3, the Postal Receipts as per Ex.P.4 & 5, the returned Legal Notices as per Ex.P.6 and P.7, the Postal Envelopes as per Ex.P.8 & 9, the Postal Receipts as per Ex.P.10 & 11, 7 Tax Invoices as per Ex.P.12 to P.18 respectively, 7 Purchase Orders as per Ex.P.19 to P.25 respectively, 6 C.C.No.11076/19 J 7 Delivery Challans as per Ex.P.26 to P.32 respectively, complaint as per Ex.P.33, signature of the complainant as per Ex.P.33(a).
5. Primafacie case has been made out against the accused No.1 and 2 and summons was issued against the accused No.1 and 2 in turn the accused no.2 has appeared before the court and got enlarged on bail and thereafter substance of accusation read over and explained to the accused no.2, the accused no.2 denied the accusation and claim to be tried.
6. As per the direction of the Hon'ble Apex Court in the decision of the Indian Bank Association Vs., Union of India, reported in 2014 (5) SCC 590, after recording the plea of the Accused no.2, as he intended to set out his defence, the case came to be posted for the Crossexamination of complainant.
7. It is relevant here to mention that, when the case was posted for crossexamination of PW.1, during that time, the complainant and the accused No.1 and 2 by representing by their respective counsels have filed Joint Memo before the court on 29.12.2021 by admitting the issuance of the cheque by the accused 7 C.C.No.11076/19 J and liability of the accused, and accused has agreed to pay Rs.75,000/ out of the cheque amount towards full and final settlement and complainant also agreed to receive the said amount. Accordingly on 29.12.2021 the accused has paid Rs.75,000/ to the complainant by way of cash before the court as full and final settlement and the complainant has also received the said amount and both complainant and accused prayed to pass the judgment by taking into consideration of the terms of the joint memo.
8. Heard and perused the evidence and documents and Joint memo submitted by the complainant and the accused, the following points that are arise for consideration:
1. Whether the complainant proves that the accused has issued cheque bearing No.000035 dt: 10.3.2019 for a sum of Rs.1,50,000/ drawn on HDFC Bank, Kathriguppe Main road, Banashankari, Bengaluru to discharge legally recoverable debt to the complainant and when the complainant has presented cheques for encashment through his banker but the said cheque was returned dishonoured for the reason "Funds Insufficient" on 18.03.2019.
The complainant issued legal notice to 8 C.C.No.11076/19 J the accused on 22.3.2019 and inspite of it the accused has not paid the cheques amount within prescribed period there by the accused has committed an offence U/s.138 of the Negotiable instruments Act?
2. What Order?
9. The above points are answered as under:
Point No.1: In the Affirmative Point No.2: As per final order for the following:
REASONS
10. Point No.1: Before appreciation of the facts and oral and documentary evidence in the present case, it is relevant to mention that, under criminal jurisprudence prosecution is required to establish guilt of the accused beyond all reasonable doubts however, a proceedings U/s.138 of N.I.Act is quasi criminal in nature. In these proceedings proof beyond all reasonable doubt is subject to presumptions as envisaged U/s.118, 139 and 146 of N.I.Act. An essential ingredient of Sec. 138 of N.I.Act is that, whether a person issues cheque to be encashed and the cheque so issued is towards payment of debt or liability and if it is returned as unpaid for want of funds, then the person issuing such cheque shall be 9 C.C.No.11076/19 J deemed to have been committed an offence. The offence U/s.138 of N.I. Act presupposes three conditions for prosecution of an offence which are as under:
1. Cheque shall be presented for payment within specified time i.e., from the date of issue or before expiry of its validity.
2. The holder shall issue a notice demanding payment in writing to the drawer within one month from the date of receipt of information of the bounced cheque and
3. The drawer inspite of demand notice fails to make payment within 15 days from the date of receipt of such notice.
If the above said three conditions are satisfied by holder in due course gets cause action to launch prosecution against the drawer of the bounced cheque and as per Sec.142(b) of the N.I. Act, the complaint has to be filed within one month from the date on which cause of action arise to file complaint.
11. It is also one of the essential ingredients of Sec. 138 of N.I.Act that, a cheque in question must have been issued towards legally recoverable debt or 10 C.C.No.11076/19 J liability. Sec. 118 and 139 of N.I.Act envisages certain presumptions i.e.,U/s.118 a presumption shall be raised regarding 'consideration' 'date' 'transfer' 'endorsement' and holder in course of Negotiable Instrument. Even U/Sec.139 of the Act are rebuttable presumptions shall be raised that, the cheque in question was issued regarding discharge of a legally recoverable or enforceable debt and these presumptions are mandatory presumptions that are required to be raised in cases of negotiable instrument, but the said presumptions are not conclusive and or rebuttable one, this proportion of law has been laid down by the Hon'ble Apex Court of India and Hon'ble High Court of Karnataka in catena of decisions.
12. In the present case, the complainant himself examined as PW.1 by filing his affidavit evidence in lieu of oral evidence, wherein he has reiterated the complaint averments i.e. about issuance of cheque by the accused, presentation of cheque, dishonour of cheque for the reason of Funds Insufficient. It is further testified by the complainant that, after receipt of memo of the bank, he has issued a legal notice on 22.3.2019 through his advocate to the accused by registered post and the notice sent to the accused has 11 C.C.No.11076/19 J been returned with a postal shara "Unclaimed returned to sender" on 25.03.2019, even after issuing of notice the accused has not made any payment to him. On careful perusal of the documents produced by the complainant i.e., Ex.P.1 to P.33, it is established that, the complainant has complied the procedural requirements as contemplated U/s.138 of the Negotiable Instrument Act.
13. It is also relevant here to mention that, when the case was posted for crossexamination of PW.1, the accused and the complainant have filed joint memo on 29.12.2021 stating that, the accused has admitted the issuance of cheque in question in favour of the complainant and also admitted his liability to discharge the legally recoverable debt as claimed by the complainant in his complaint. The complainant and accused have also stated that, they have amicably entered into compromise in this case by the advise of well wishers and the complainant and accused voluntarily submitted the said joint memo stating that, the accused agreed to pay sum of Rs.75,000/ out of the cheque amount and complainant also agreed to receive the said amount towards full and final settlement and it is duly signed by them and their 12 C.C.No.11076/19 J respective counsels. On an enquiry, the complainant and accused submitted before the court that they are aware of the terms and conditions of the joint memo and accepted the same with free and voluntarily.
14. Though the accused has denied the transaction in question and also issuance of the cheques in question in favour of the complainant towards discharge of the loan amount in question and service of notice upon him, but in the joint memo filed by the accused has clearly admitted the issuance of cheques in favour of the complainant and also liability to pay the loan amount in question in favour of the complainant. Therefore the complainant has proved that, he has lent loan amount in question to the accused and the accused inturn has issued the cheque in question ie Ex.P.1 towards discharge of the loan amount in question, and also proved that, cheque in question has been presented within its validity period and after receipt of the bank endorsement, the complainant got issued legal notice to the accused within 30 days from the date of receipt of bank memo and also the said notice sent through RPAD was deemed to be served on the accused. Hence, the complainant has complied all the mandatory 13 C.C.No.11076/19 J requirements as required U/s.138 (a) to (c) of N.I.Act and initial presumption can be drawn against the accused that, he has committed an offence punishable U/s.138 of N.I.Act.
15. It is also seen from the terms of the joint memo, both the complainant and accused have settled their dispute for a sum of Rs.75,000/ (Rupees Seventy Five Thousand), accordingly on 29.12.2021 the accused has paid Rs.75,000/ to the complainant by way of cash as full and final settlement and complainant has also received the said amount and both parties requested to pass the judgment as per the terms and conditions of the joint memo.
16. As the terms and conditions of the joint memo is accepted by the complainant and the accused, in the ends of justice it is just and proper to accept the same and permit the accused to pay the admitted amount or settled amount to the complainant as agreed between the complainant and accused in the joint memo. Under these circumstances, the above point is answered in the Affirmative.
14 C.C.No.11076/19 J17. Point No.2: In the light of discussions made in the above point and as per the terms of joint memo the accused is liable to pay amount to the complainant as agreed by him hence in the ends of justice it is just and proper to pass the following : ORDER The accused no.2 is sentenced to pay a fine of Rs.75,000/= (Rupees Seventy Five Thousand Only).
The said fine amount of Rs.75,000/ was paid by the accused No.1 and 2 to the complainant on 29.12.2021 by way of cash and same is received by the complainant.
The Joint Memo filed by the complainant and the accused No.1 and 2 shall form part and parcel of this order.
The Bail bond of the accused No.2 stands cancelled.
Office is directed to furnish free certified copy of this judgment to the Accused No.2 incompliance of Sec.363(1) of Cr.P.C. (Directly dictated to the Stenographer online, printout taken by her, verified, corrected and then pronounced by me in the open Court on this the 30th day of December 2021).
(SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
15 C.C.No.11076/19 JANNEXURE
1. List of witness/s examined on behalf of the Complainant: P.W.1 : Sri. M.Rajendra (Proprietor)
2. List of documents exhibited on behalf of the Complainant: Ex.P.1 : Original Cheque;
Ex.P.1(a) : Signature of the Accused;
Ex.P.2 : Bank Memo; Ex.P.3 : Office copy of the Legal Notice; Ex.P.4 & P.5 : Postal Receipts; Ex.P.6 & P.7 : Returned Legal Notices; Ex.P.8 & P.9 : Postal Covers; Ex.P.10 & P.11 : Postal Receipts; Ex.P.12 to P.18 : 7 Tax Invoices; Ex.P.19 to P.25 : 7 Purchase Orders; Ex.P.26 to P.32 : 7 Delivery Challans; Ex.P.33 : Complaint Ex.P.33(a) : signature of the complainant
3. List of witness/s examined on behalf of the Accused: Nil
4. List of documents exhibited on behalf of the Accused: Nil (SRI.S.B.HANDRAL), XVI ACMM, Bengaluru City.
16 C.C.No.11076/19 J30.2.2021