Bangalore District Court
Via Incorporation Company vs Having Office At No.14 on 5 October, 2019
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 05th day of October, 2019.
Crl. Appeal. No.25200/2018
Appellants/ 1. Via Incorporation Company,
Accused Having office at No.14, 21st Cross,
persons: Whitefield, Main Road, M Junction,
Behind Total Mall,
Outer Ring Road,
Bangalore560037.
Rep by its Proprietor,
Sri. T. Gunshekar. R.
2. Sri. T. Gunshekar,
Proprietor of Via Incorporation
Company, R/at No.14,
21st Cross, Whitefield,
Main Road, M Junction,
Behind Total Mall,
Outer Ring Road,
Bangalore560037.
[By Sri. R.P. ManjunathAdv]
V/s
q
Respondent/ 1. M/s Matrix Technologies Inc.
Complainant: New No.2, (Old No.9/A),
12th Main, 14th Cross,
Lakkasandra, Bangalore560030,
2 Crl.Appeal.No.25200/2018
By its Proprietor,
Sri. K. Narayan Rao,
S/o C.S. Santhoji Rao,
Aged about 39 years,
By his S.P.A Holder
Shri. P. Guruswamy,
(By Sri. T. Swaroop Adv.)
JUDGMENT
This Appeal is preferred by the Appellant U/Sec. 374(3) of Cr.P.C., being aggrieved by the Judgment and Order of conviction passed by the LVIII Addl. CMM, Bengaluru, in CC. No.54011/2015, dtd.06.10.2018, convicting the Appellant/Accused for the offence punishable U/Sec. 138 of NI Act, thereby sentencing him to pay fine of Rs.2,30,000/. Out of which, Rs.2,25,000/ shall be paid as compensation to the Complainant U/sec. 357(1) of Cr.P.C. and Rs.5,000/ shall be paid to the State Exchequer, as fine. In default, to undergo Simple Imprisonment for a period of three months.
2. The Brief facts leading to the filing of the present appeal are:
The present Respondent filed a Complaint U/Sec. 200 of Cr.P.C., against the present Appellants, alleging that, the Appellant No.2 being the proprietor of 3 Crl.Appeal.No.25200/2018 Appellant No.1, approached the Respondent to supply UPS systems. On demand of the same, the Respondent supplied the goods to the Appellants.
Inorder to repay the amount for supply of such goods, the Appellant No.2 has issued two postdated cheques, which have been returned unencashed. The Appellant No.2 inorder to repay the said amount has entered into a memorandum of undertaking dtd.13.07.2014 and under the said memorandum of undertaking, he has issued cheques infavour of the Respondent.
Among the said cheques, the Appellant No.2 has issued cheque bearing No.052324 dtd.27.03.2015, for Rs.1,50,000/ drawn infavour of Axis Bank Ltd., Marathhalli Branch, Bengaluru. On presentation of the said cheque by the Respondent, for its encashment through its Banker Karnataka Bank, Wilson Garden Branch, Bengaluru, the said cheque has returned with an endorsement "Funds Insufficient" on 28.01.2015. The Respondent intimated the same to the Appellant No.2, but he has evaded the payment of the amount covered under the said cheque on one or the other pretext. Hence, the Respondent has issued legal notice dtd.25.02.2015 to both the Appellants by RPAD as well by courier. On completion of the stipulated period, the Respondent was constrained to file the Complaint 4 Crl.Appeal.No.25200/2018 U/Sec.200 of Cr.P.C. alleging that the Appellants have committed the offence punishable U/Sec. 138 of N.I.Act.
3. On being satisfied, the Trial Court has issued summons U/Sec.204 of Cr.P.C. to the Accused persons on 25.06.2015. The Accused persons appeared before the Trial Court on 03.01.2017 and they were enlarged on bail. Plea/substance of accusation was recorded by the Trial Court on 03.01.2017, wherein the Accused did not plead guilty and claims to be tried.
4. The Complainant inorder to prove his case got examined its General Power of Attorney Holder as PW.1 and got marked 18documents as Ex.P.1 to Ex.P.18. P.W.1 was crossexamined on behalf of the Accused on 27.07.2017, 03.08.2017 and 06.08.2017.
5. On closure of Complainant evidence, on the basis of incriminating substance, the Trial Court has recorded statement of the Accused U/Sec.313 Cr.P.C., on 21.04.2017. The Accused got himself examined as DW.1 and has got marked 9-documents as Ex.D.1 to ExD.9. DW.1 was cross examined on behalf of the Complainant on 06.01.2018 and 11.04.2018.
5 Crl.Appeal.No.25200/20186. On hearing the Complainant and the Accused, the Trial Court recorded the Order of conviction against the Accused on 06.10.2018. Hence, the Accused persons are before this Court, being aggrieved by the said Judgment of conviction.
7. On filing the appeal, initially the sentence was suspended for a period of three months by this Court on 03.11.2018, with a condition that the Appellants shall deposit 20% of the cheque amount and fine amount before the Trial Court within four weeks. LCR was secured on 23.01.2019. Heard the Learned Counsels for the Appellants and the Respondent respectively, on the appeal. The Learned Counsel for the Appellants has also filed his written arguments on 02.07.2019. I have carefully gone through the written arguments submitted on behalf of the Appellants. Since there was certain clarification, even the Appellants were heard on clarification, on 30.09.2019. The Learned Counsel for Appellants has relied upon six decisions i.e., 1) Kumar Exports V/s Sharma Carpets, reported in (2009) 2 SCC 513; 2) M/s.
SathavahanIspat Ltd V/s Umesh Sharma, reported in ILR 2006 Kar, 3579; 3) SudhaBeevi V/s State of Kerala, reported in 2004 Cri.LJ 3418; 4) M/s. Q Soft System & Solutions V/s H.N. Giridhar, reported in ILR 2008 Kar 643; 5) Krishna Janardhan Bhat V/s.
6 Crl.Appeal.No.25200/2018Dattatraya G Hegde, reported in (2008) 4 SCC 54 and
6) P. Suresh Kumar V. R. Shankar reported in (2007) 4 SCC 752.
8. The Appellants have preferred this appeal on the following grounds:
Grounds of Appeal:
a) The Trial Court has miserably failed to appreciate the oral and documentary evidence on record, in a proper and perspective manner;
b) The Trial Court has failed to consider the main contention taken up from the side of the Accused persons is that, Complainant company has not supplied goods as mentioned in Ex.P1 and Ex.P2 and has delivered only the part quantity of the goods, as ordered;
c) The Accused persons have filed detailed arguments by discussing the transaction taken place inbetween the Complainant and the Accused Company, step by step, which is not all considered;
ca) The Trial Court ought to have considered that the cheque in question has been obtained by the Complainant in the police station forcibly having filled by the Accused No.2;
d) The Trial Court ought to have considered that, the Accused No.2 has filed a complaint before the police authorities;
e) The Trial Court ought to have considered that the transaction inbetween the Accused Company and Respondent company is a commercial in nature 7 Crl.Appeal.No.25200/2018 thereby leading to a Civil remedy, for which complaint under N.I. Act ought not to have been entertained;
f) The Trial Court has failed to observe that the Complainant has discharged his initial burden to avail the benefit of presumption and the Accused persons have failed to prove their defence;
g) The Trial Court ought to have appreciated that the Appellants have successfully rebutted the presumption envisaged U/Sec. 139 of N.I. Act. Hence, prayed to allow the said Appeal.
9. Following points arise for my consideration;
1. Point No.1: Whether the Appellants/Accused persons show that the Order of Conviction and Sentence recorded by the Trial Court in C.C.No.54011/2015, dtd.06.10.2018, deserves to be setaside, and thereby call for the interference of this Court?
2. What Order?
10. My finding on the above points are as under:
Point No.1 : In the Negative;
Point No 2 : As per final order for the following :
REASONS 8 Crl.Appeal.No.25200/2018
11. Point No.1: The rank of the parties will be referred as they were before the Trial Court.
The Complainant has filed a complaint U/Sec. 200 of Cr.P.C. alleging that the Accused No.2 being the proprietor of Accused No.1, has committed an offence punishable U/Sec. 138 of N.I.Act, as he has issued cheque bearing No.052324 dtd.27.03.2015Ex.P.6, for an amount of Rs.1,50,000/, in its favour. On presentation of the said cheque for its encashment, the same has returned with an endorsement "Funds Insufficient" as per Ex.P7. On receipt of Ex.P7, it has issued the legal Notice dtd.25.02.2015 to the Accused persons as per Ex.P8, by RPAD, as per Ex.P.9 and by courier service as per Ex.P10 to Ex.P13. The postal envelops through which Ex.P8notice was issued to the Accused persons have returned as per Ex.P14 to Ex.P17. The Complainant has produced Ex.P5Spl. General Power of Attorney wherein the Complainant company has authorized PW.1 to represent the company, in this case. So also the Complainant has produced tax invoices at Ex.P1 and Ex.P2 and complaint lodged with the HAL Police at Ex.P3 and memorandum of understanding as per Ex.P4. On the basis of the said documents and the preliminary evidence led by the Complainant, the Trial Court has 9 Crl.Appeal.No.25200/2018 issued summons to the Accused U/Sec.204 of Cr.P.C., on 25.06.2015. I do not find any error in the said order of the Trial Court.
12. On appearance of the Accused persons, plea/substance of accusation of Accused No.2 for himself and as proprietor of Accused No.1, was recorded on 03.01.2017. I have gone through the contents of the plea recorded by the Trial Court. I do not find any fault, in the plea/substance of accusation recorded by the Trial Court.
13. On careful perusal of the evidence led by the Complainant as well as the Accused persons, it is the case of the Complainant that, inorder to clear off the dues, formed on account of receipt of UPS systems, the Accused No.2 being the proprietor of Accused No.1, has issued a cheque as per Ex.P6, which is bounced as per the endorsement Ex.P7. For which the Complainant has issued legal notice as per Ex.P8 to the Accused persons. The said notice were sent by RPAD as per Ex.P9 as well as by courier service as per ExP10 to Ex.P13. Notice issued to the Accused persons has been returned as per Ex.P14 to Ex.P17.
10 Crl.Appeal.No.25200/201814. The Complainant has produced Ex.P1 and Ex.P2 tax invoices as well as Ex.P4 memorandum of understanding entered inbetween Complainant company and the Accused No.1 company, through Accused No.2. Further as per the crossexamination of DW.1, page No.4, Para No.1 Line Nos.1 to 3, which reads as under;
" ... ¤.¦.-6gÀ ZÉPï£ÀÄß ¸ÁQëUÉ vÉÆÃj¸À¯ÁVzÀÄÝ CzÀgÀ°ègÀĪÀ MPÀÌuÉ ¸ÀºÀ £À£Àß PÉʧgÀºÀzÀÄÝ è JAzÀÄ M¦àPÉÆArgÀÄvÁÛgÉ. ¤¦-2 ©¯ï£À PÉʧgÀºÀUÀ¼ÀÄ ¸ÀºÀ £À£ÀßzÉÝ DVgÀÄvÀÛzÉ......"
As per this piece of evidence, Accused No.2 admits his signature as well as writings on Ex.P6 cheque.
15. Thus, as per the documentary evidence produced by the Complainant as per Ex.P1 to Ex.P17 and on conjoint reading of above oral evidence with that of the documentary evidence, it can be said that the Complainant has initially proved that, the Accused No.2, being proprietor of Accused No.1 company, has issued Ex.P6cheque towards the payment of dues formed on account of supply of UPS systems by the Complainant company to the Accused No.1 company.
16. On viewing the amount of oral evidence with Ex.P.1 to P.17, which will suffices that the Complainant is entitle to have benefit of presumption 11 Crl.Appeal.No.25200/2018 available U/Sec.138, 139 of N.I.Act. As per the trite principle of law dealing with the presumption U/Sec.138 & 139 of N.I.Act and as per the dictum laid down by the Hon'ble Apex Court in the case of K. Subramani V/s K. Damodara Naidu, reported in 2014 (12) SCALE 677, as well as in the case reported in (2010) 11 SCC 441, wherein it is held that, "presumption U/Sec.139 of N.I.Act accrues to the benefit of the Complainant, unless the Accused rebut that presumption".
Now it is for the Accused to rebut the said presumption available to the Complainant U/Sec.139 of N.I.Act.
17. As per the crossexamination of PW.1 conducted on behalf of the Accused persons and on the basis of the defence evidence led by the Accused persons, the Accused persons have taken up the following defences;
(a) That the officials/staff of the Complainant company has taken 14cheques forcibly from the custody of the Accused No.2 and with the help of the police authorities, they have got written Ex.P4memorandum of undertaking and got signed the signatures on the said cheques. This can be seen as per suggestions made to PW.1 on behalf of the Accused persons, as per crossexamination of PW.1, page No.3, Para No.4, Line 12 Crl.Appeal.No.25200/2018 Nos.5 and 6 as well as crossexamination of PW.1 page No.6, Para No.11, Line Nos.3 to 6 and cross examination of PW.1, page No.7, line Nos.3 to 5 and also as per the examination of DW.1 page No.2, Line Nos.9 to 15, which reads as under;
"... ¸ÀgÀPÀÄUÀ¼À£ÀÄß ¸ÀgÀ§gÁdÄ ªÀiÁrzÀgÉ £ÁªÀÅUÀ¼ÀÄ 14 ZÉPïUÀ¼À£ÀÄß DgÉÆæ¬ÄAzÀ ¥ÀqÉ¢zÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è...."
" ... ¥Éǰøï oÁuÉAiÀÄ°è DgÉÆæ¬ÄAzÀ §®ªÀAvÀªÁV ¤.¦.-4 §gÉzÀÄPÉÆArzÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ¤.¦.-4 gÉÆA¢UÉ ®UÀwÛ¹gÀĪÀAvÀºÀzÀ gÀÄ,ÄgÁPïì ZÉPÀÄÌUÀ¼À C¸À®Ä ªÀÄÆ® ZÉPÀÄÌUÀ¼À£ÀÄß ªÀÄÄA¢£À ¢£ÁAPÀzÀAzÀÄ EzÀÝ°è ºÁdgÀÄ¥Àr¸ÀÄvÉÛãÉ."
" .... ¥Éǰøï oÁuÉAiÀÄ°è ¤.¦-4 §®ªÀAvÀªÁV §gɬĹ PÉÆAqÀÄ 11 ZÉPÀÄÌUÀ¼À ªÉÄÃ¯É §®ªÀAvÀªÁV DgÉÆæAiÀÄ ¸À» ¥ÀqÉzÀÄPÉÆArzÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è......."
"......On 25.06.2014 the Complainant along with 4 to 5 people came to my office and threatened me hence I have lodged the complaint against the Complainant and the police have given the Acknowledgment. After 3 to 4 days of filing of complaint to the police, the Complainant along with police came to my office and forcibly taken cheque book containing 14 leaves on 30.06.2014......''
(b) The second defence taken up by the Accused persons is that, as per Ex.P4memorandum of undertaking 11post dated cheques were taken by the Complainant company, forcibly, inspite of making entire payments. This can be seen as per the cross examination of PW.1, at Page No.4, para No.8, which reads as under;13 Crl.Appeal.No.25200/2018
" £ÀªÀÄä PÀbÉÃjAiÀÄ°è ¢ªÁPÀgï PÉ®¸À ªÀiÁqÀÄwÛzÀÝgÀÄ. FUÀ CªÀgÀÄ PÉ®¸À ©nÖzÁÝgÉ. ¤.¦.-4gÀ ¥ÀæPÁgÀ 11 ¥ÉÇøïÖ qÉÃmÉqï ZÉPÀÄÌUÀ¼À£ÀÄß DgÉÆæ¬ÄAzÀ ¥ÀqÉ¢zÉÝêÉ. DgÉÆæAiÀÄÄ £ÀªÀÄUÉ J¯Áè ºÀt ¥ÁªÀw ªÀiÁrzÀÝgÀÄ ¸ÀºÀ ¥Éǰøï oÁuÉAiÀÄ°è MvÁÛAiÀÄ¥ÀǪÀðPÀªÁV ¥ÉÇøïÖ qÉÃmÉqï ZÉPÀÄÌUÀ¼À£ÀÄß DgÉÆæ¬ÄAzÀ ¥ÀqÉzÀÄPÉÆAqÀÄ zÀÄgÀÄ¥ÀAiÉÆÃUÀ¥Àr¹PÉÆArzÉÝÃªÉ JAzÀgÉ ¸ÀjAiÀÄ®è. gÀÆ.6,06,625-00 UÀ¼À ZÉPï £ÀAB350229 ZÉPÀÄÌUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¸À®Ä vÉÆAzÀgÉ E®è. "
(c) The third defence taken up by the Accused persons is withregard to nonservice of notice Ex.P8.
18. Now let us examine the said defences raised by the Accused persons. The Accused persons have to prove the said defences taken up by them, on the basis of preponderance of probabilities.
19. First of all, the Accused persons have to prove that the staff members of the Complainant company have taken up either 14cheques or 11post dated cheques from the custody of the Accused No.2 and with the help of the police authorities have got executed Ex.P4 and got written and signed the cheques, more specifically Ex.P6cheque.
20. It is the case of the Accused persons that he had lodged a complaint against the officials/staff members of the Complainant company, as per Ex.D.3 with the HAL police station. The Accused persons have produced the acknowledgement issued by the HAL P.S. 14 Crl.Appeal.No.25200/2018 at Ex.D.3. Though the Accused persons have produced the acknowledgement, but they have not produced the copy of the complaint lodged before the HAL P.S. for which ExD.3 acknowledgement has been issued by the said police authorities. On careful perusal of Ex.D.3 more specifically column No.4 which is meant for the summary/gist of the Complaint, which speaks that a Complaint was lodged by the Complainant Gunashekhar T.the present Accused No.2 contending that, Narayan and Divakar have supplied UPS Matrix Technology system to him and he has sold the said systems on retail basis, now the said persons are after him and torturing him to recover the amount for supply of UPS systems. Further he has contended that, he was required to repay the said amount, but he has not repaid, both the said persons are to be called for and are to be given necessary instructions warning to them. Ex.D3 never contends that the Complainant company has not supplied the goods/UPS systems, as ordered/demanded by the Accused No.1 company, as contended by them.
21. Further the Accused persons contend that, the officials have unauthorizedly taken away the cheques, in one breadth it is contended that 14 cheques have been taken away and in another breadth 11cheques have been taken away, in accordance with 15 Crl.Appeal.No.25200/2018 Ex.P4memorandum of understanding. Any how, it is for the Accused persons to prove the said event, as contended, in the form of defence. The Accused persons have not produced any documents or have not led any oral evidence inorder to show that either the Complainant company or its staff members have taken away either 14cheques or 11cheques from the custody of the Accused No.2.
If such an event would have taken place, then the Accused persons, would have filed or lodged a Complaint against the Complainant company or its staff members, as filed as per Ex.D.3, but no such Complaint or document is coming forth to prove the said event, on the part of the Accused persons.
22. Further the Accused persons contend that, the Complainant company has forcibly got executed Ex.P4memorandum of undertaking from the Accused No.2 and have got written and got signed 11cheques, including Ex.P6cheque. This type of defence can be seen as per the examination in chief of DW.1, Page No.2, Line Nos. 19 to 25, which reads as under:
"...... There were no Memorandum of Understanding between me and the Complainant but on 13.07.2014 that is on 16 Crl.Appeal.No.25200/2018 Sunday the Complainant and police came to my house and asked me to come to the police station and in the police station they have forced me to write cheques they have got written 5 to 6 cheques for Rs.50,000/ each and I do not remember the amount of other cheques.....'' As per the ocular evidence more specifically cross examination of DW.1 at Page No.2, Para No.3, Line Nos.6, which reads as under:
" .....¤.¦.-4gÀ°ègÀĪÀ ¸À»UÀ¼ÀÄ £À£Àß ¸À»UÀ¼ÁVgÀÄvÀÛªÉ.... "
As per this piece of evidence, it can be said that, the Accused No.2 admits his signature on Ex.P.4 memorandum of undertaking.
Further as per the crossexamination of DW.1, at Page No.6, Para No.4, line Nos. 8 & 9, which reads as under:
" .....¤.¦.-4gÀ°ègÀĪÀ PÀA¥À¤¬ÄAzÀ ¸ÀgÀ§gÁdÄ J¯Áè ªÀ¸ÀÄÛUÀ¼À£ÀÄß ªÀÄvÀÄÛ EvÀgÉà «ªÀgÀUÀ¼À£ÀÄß £ÀªÀÄÆ¢¸À¯ÁVzÉ JAzÀgÉ ¸Àj. "
As per this piece of evidence, Accused No.2 admits that he has received the goods/UPS systems as written in Ex.P4.
Now let us see as to when this Ex.P4 memorandum of undertaking is written. As per the
crossexamination of DW.1, Page No.6, Para No.5, which reads as under;
17 Crl.Appeal.No.25200/2018" JA.M.AiÀÄÄ £ÀÄß 13.07.2014 gÀAzÀÄ DVzÀÄÝ 30.06.2014PÉÌ D «ªÀgÀUÀ¼À£ÀÄß ElÄÖPÉÆAqÀÄ ¥ÀvÀæ §gÉAiÀÄ®Ä ¸ÁzÀså«®è JAzÀgÉ ¢B 29.06.2014 JA.M.AiÀÄÄ ªÀiÁrPÉÆArgÀĪÀÅzÁV ¸ÁQë £ÀÄrAiÀÄÄvÁÛgÉ. ¤r-4 zÁR¯ÉAiÀÄ£ÀÄß ¸ÀļÁîV ¸Àȶ׹PÉÆAqÀÄ £ÁåAiÀiÁ®AiÀÄPÉÌ ¸À°è¹ CzÀPÉÌ ¥ÀÇgÀPÀªÁV ¸ÀļÀÄî ¸ÁPÀë å £ÀÄrAiÀÄÄwÛzÀÝ£ÉAzÀgÉ ¸ÀjAiÀÄ®è. "
As per this piece of evidence, it is seen that memorandum of undertakingEx.P4 is dtd.13.07.2014. As per Accused No.2 said memorandum of undertaking is written on 29.06.2014. Here the Accused No.2 has not produced any document to fortify his contention that, the said memorandum of undertaking is written on 29.06.2014. So even presuming for the worst, memorandum of undertaking is written on 29.06.2014, then the Accused persons have to prove that on that date Accused No.2 was taken to the police station and memorandum of undertaking was written in the police station. The documents produced by the Accused Ex.D.1 to Ex.D.8 will not speak about this event. If the Accused persons prove that memorandum of undertakingEx.P4, was got executed and written by Accused No.2, in the police station, even on the basis of preponderance of probabilities, the presumption available to the Complainant U/Sec. 138 and 139 of N.I. Act stands rebutted. But the Accused persons have failed to prove the said event.
18 Crl.Appeal.No.25200/201823. Further the second defence taken up by the Accused persons is that, the Complainant company has taken 11cheques forcibly with the aid of the police on the basis of memorandum of undertaking, inspite of the Accused No.2 repaying the entire amount.
As per the evidence of DW.1 more specifically examination in chief of DW.1 line Nos. 25 to 28, which reads as under;
"....... On 26.06.2014 the Complainant along with 4 to 5 people came to my office and threatened me hence I have lodged the complaint against the Complainant and the police have given the Acknowledgment. After 3 to 4 days of filing of complaint to the police, the Complainant along with police came to my office and forcibly taken cheque book containing 14 leaves on 30.06.2014.......'' As per this piece of evidence, Accused No.2 admits that he has to pay the amount for having received the UPS systems, to the extent of 125units and not to the extent of 250units. This version of the Accused persons is totally in contradiction with the second defence taken by them, contending that entire amount is paid to the Complainant company. So the defence taken up by the Accused persons is not in conformity with either the oral evidence or the 19 Crl.Appeal.No.25200/2018 documentary evidence led by them, but the same is in contradiction with their own versions.
24. The third defence taken up by the Accused persons is that, service of noticeEx.P8, is not proper.
The Complainant has produced the postal returned envelops at Ex.P14 to Ex.P17. More specifically as per Ex.P15, it is seen that there is an endorsement made by the postal authorities that "Party out of stationin depositthree days".
As per the oral evidence of the Accused No.2 more specifically the crossexamination of DW.1 at Page No.7, Para No.7, line Nos.1 and 2, which reads as under;
" ¤.¦.-15gÀ »A¢gÀÄV¹zÀ CAZÉ ®PÉÆÃmÉAiÀÄ°è «ªÀj¹zÀ «¼Á¸ÀªÀÅ £À£Àß «¼Á¸ÀªÁVgÀÄvÀÛzÉ...."
As per this piece of evidence, it can be seen that the Accused No.2 admits the address shown on Ex.P15, as the correct address. So as per Sec. 27 of the General Clauses Act, there is a presumption for issuance and service of noticeEx.P8, which is rightly considered by the Trial Court in its Judgment at Page Nos.14 and 15, Para No.20.
25. On viewing the oral and documentary evidence, it can be said that the Accused persons have 20 Crl.Appeal.No.25200/2018 failed to prove that, the Complainant company or its staff members have taken away the cheques (either 14 or 11 cheques) from the custody of the Accused No.2 and they with the help of the police authorities, have got executed the memorandum of undertakingEx.P4 and got written and signed the said cheques, more specifically Ex.P6 cheque in question, forcibly. Thus, it is hard to believe the said defences putforth by the Accused persons. The said defences have not inspired the confidence of this Court as well as the Court below. Hence, the same is discarded.
26. The Learned Counsel for the Appellant would contend that the Complainant company has to prove that, the Accused persons had to pay the balance amount, as contended by them, by proving the supply of the UPS systems, as contended by them. Rightly, this question would have arisen firstly, if the Accused persons had denied the execution and the contents of Ex.P4 memorandum of undertaking and secondly, when the Accused persons would have proved the event putforth by them with regard to execution of Ex.P4 and the cheques, more specifically the cheque in questionEx.P6, forcibly, with the aid of the police. Since the same has not been shown by the Accused persons even on the basis of preponderance of 21 Crl.Appeal.No.25200/2018 probabilities, that contention of the Learned Counsel for the Accused persons will hold no water.
Further the Learned Counsel for the Appellants would contend that the issue involved is of a Civil nature, for which proceedings U/Sec. 138 of N.I. Act cannot be availed by the Complainant. On the basis of the defence taken up by the Accused persons and the contentions raised by the Complainant company, definitely the Complainant company can exercise the remedy available U/Sec. 138 of N.I. Act for the dishonour of the chequeEx.P6. If at all, the Accused persons are disputing the supply of UPS systems to them by the Complainant company, they can work out their remedy elsewhere.
27. The Learned Counsel for the Appellants have placed his reliance on the decisions:
a) Kumar Exports V/s Sharma Carpets, reported in (2009) 2 SCC 513. In this case, the Accused has produced the evidencedeclaration furnished by the Complainant to the Sales Tax Department, declaring that no sale has taken place, as suggested in the sales invoicetransaction inbetween the Accused and the Complainant, therein. Under such circumstances, the Hon'ble High Court was pleased to hold that, production of such declaration made by the 22 Crl.Appeal.No.25200/2018 Complainant to the Sales Tax Department is the evidence which will displace/rebut the presumption available to the Complainant U/Sec. 139 of N.I. Act, consequently, which leads to proof of existence of that or liability on the part of the Accused thereby offence U/Sec. 138 of N.I. Act has remained unproved. Such evidence is not produced by the Accused in this present case to rebut the presumption available to the Complainant U/Sec. 139 of N.I. Act.
b) M/s. SathavahanIspat Ltd V/s Umesh Sharma, reported in ILR 2006 Kar, 3579. In this case cheque was issued inrespect of uncertain future liabilities, for which prosecution U/Sec. 138 of N.I. Act is not attracted. In the present case, it is not at all the defence of the Accused persons that the cheque in questionEx.P6, is issued by Accused No.2 towards uncertain future liability.
c) SudhaBeevi V/s State of Kerala, reported in 2004 Cri.LJ 3418, wherein it is held that post dated cheques cannot be presented for encashment after seizure of the vehicleComplainant repossessing the vehicle, in a dispute inbetween the Complainant and the Accused. Presentation of such post dated cheques is held improper. Owner has to take recourse to other legal remedies for recovery of balance amount.
23 Crl.Appeal.No.25200/2018d) M/s. Q Soft System & Solutions V/s H.N. Giridhar, reported in ILR 2008 Kar 643, held that, breach of contract, cheque issued by way of damages, will not attract criminal proceedings for dishonour of cheque, but it is purely a matter of Civil transaction, which the Civil Court has to adjudicate. In the present case, it is not the defence of the Accused persons that cheque Ex.P6 is issued towards the damages for breach of contract.
e) Krishna Janardhan Bhat V/s. Dattatraya G Hegde, reported in (2008) 4 SCC 54, wherein it is held that, Sec.139 merely raises a presumption infavour of holder of cheque that the said cheque has been issued for discharge of any debt or other liability, existence of legally recoverable debt will not come within the purview of such presumption. In order to rebut the presumption, it is not necessary for the Accused to step into the witness box, but even the Accused can rebut the said presumption by bringing the material on record, in the crossexamination of the Complainant. Accused has a right of silence.
f) P. Suresh Kumar Vs. Shankar reported in (2007) 4 SCC 752. (Though relied, but the said citation is not supplied). In this case, out of a 24 Crl.Appeal.No.25200/2018 compromise terms, there was a term to handover a cheque for Rs.7,00,000/ as security deposit and the said cheque was presented prior to the determination of actual liability payable upon finalization of the accounts by the auditor. In this case, Ex.P6cheque is not given by the Accused persons to the Complainant company, as a security deposit.
28. Considering the inconsistent contentions raised by the Accused persons during the course of crossexamination of PW.1 and in the defence evidence, it can be said that, the said stands taken up by the Accused persons have remained unproved even on the basis of preponderance of probabilities, inorder to rebut the presumption available to the Complainant U/Sec 139 of NI Act. So, in the absence of material evidence, the different and distinct stands taken up by the Accused persons, cannot be accepted at all.
29. Hence, presumption available to the Complainant company U/Sec.139 of N.I. Act stands unrebutted. I have gone through the Judgment of the Trial Court, rightly the Trial Court has concluded that the Accused persons have failed, to rebut the presumption available to the Complainant U/Sec.139 of N.I.Act.
25 Crl.Appeal.No.25200/201830. Sec. 139 of N.I.Act lays down a presumption that, the holder of a cheque has received a cheque for the discharge of a debt or liability, legally recoverable, unless contrary is proved. Under such circumstances, there is no any hurdle to derive the presumption available to the holder of the cheque U/Sec.118 as well as 139 of N.I.Act. I find force to my above opinion as per the decision of Hon'ble Apex Court in the case of Hiten Pidalal V.s Bratindranath Banergi reported in 2001 Crl.L.J. 4647 (Supreme Court) as well as in the case of M.S.Narayan Menon @ Mani V/s State of Kerala and Another reported in 2006 SAR.Crl.616 and in the case of Krishna Janardhan Bhat V/s Dattatreya G. Hegde reported in (2008)2 SCC Crl.
166. Rightly, the Trial Court has considered all these aspect and there is no any fault on the part of the Trial Court. I do not find any force in the submission of the learned counsel for the Appellants.
31. I have carefully gone through the reasoning given by the Trial Court, while awarding compensation to the Complainant U/Sec.357 of Cr.P.C. The Trial Court has rightly consider the guiding principles laid down by the Hon'ble Apex Court, in the case of Harisingh V/s Sukhbir Singh reported in (1988) 4 SCC 551, as well as in the case of Suginthi Suresh 26 Crl.Appeal.No.25200/2018 Kumar V/s Jagadishan reported in 2002 Crl.L.J. 1003 (Supreme Court).
32. I have carefully gone through the decisions relied by the Learned Counsel for the Appellants/Accused persons both before the Trial Court as well as in the Appeal.
Further the Hon'ble High Court has held in General Auto Sales Vs Vijayalakshmi, reported in 2005(1) KLT 478 in Paragraph No 8 thereof, that "even if a blank signed cheque has been given towards liability or even as security, then the liability subsists and quantified, if the cheque is filled up and presented to the Bank, the person who had drawn the cheque, cannot avoid the criminal liability under Section 138 of NI Act".
Further the Hon'ble Apex Court has held in Rangappa Vs Sri Mohan, reported in (2010) 11 SCC 441, that "once issuance of cheque and signature thereon are admitted, presumption of a legally enforceable debt infavour of the holder of the cheque arises. It is for the Accused to rebut the said presumption, though Accused need not adduce his own evidence and can rely upon the material submitted by 27 Crl.Appeal.No.25200/2018 the Complainant. However, mere statement of the Accused may not be sufficient to rebut the said presumption".
33. In this case there was really presumption available infavour of the Complainant in terms of Section 138 & 139 of Negotiable Instruments Act, against the accused persons and the accused persons have not discharged their burden to rebut that presumption.
34. The Court below has considered all the aspects, the grounds taken up by the Accused persons as defence. Even I do not find any fault with the Order of the Trial Court in awarding compensation to the Complainant. When no fault is committed by the Trial Court, interference by this Court does not arise at all. Thus I am declined to interfere with the findings recorded by the Trial Court.
35. Necessarily the prosecution succeeds. The conviction is therefore confirmed, as the accused persons are found guilty of the offence punishable under Section 138 of Negotiable Instruments Act.
Hence, for the above reasons I answer point No.1 in the Negative.
28 Crl.Appeal.No.25200/201836. Point No.2: For the aforesaid reasons, I proceed to pass the following:
ORDER Acting U/Sec.386 of Cr.P.C., the Appeal preferred by the Appellants/Accused persons is hereby Dismissed.
In the consequences, the order passed by the Learned LVIIIth Addl. CMM, Bengaluru in CC No.54011 of 2015, dated 06.10.2018, recording conviction of the Accused persons, is hereby confirmed.
The Court below shall execute its order, as per law.
No order as to costs.
In case, if the Accused has deposited the amount, as directed U/Sec. 148 of N.I. Act, the same may be dealt with, as per Law U/Sec. 143 of the said Act.
Remit the LCR to the Court below, on obtaining necessary acknowledgement, alongwith the copy of this Judgment.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after 29 Crl.Appeal.No.25200/2018 correction, signed and pronounced by me, in the open court on this the 05th day of October, 2019) [AbdulRahiman. A. Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)