Bangalore District Court
Sri.Balaji Complex vs No.2372 on 5 January, 2022
BEFORE THE COURT OF XXIV ADDITIONAL SMALL
CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS
TRIBUNAL & A.C.M.M. (SCCH-26) AT BENGALURU
DATED THIS THE 5th DAY OF JANUARY 2022
PRESENT: SRI.R.MAHESHA. B.A.,L, LLB.,
XXIV ADDL. SCJ &
ACMM & MEMBER - MACT
BENGALURU.
1. Sl. No. of the Case CC.No.11638 of 2014
2. The date of 18-12-2015
commencement of
evidence
3. The date of closing 23-09-2021
evidence
4. Name of the M/s G.Das & Company Pvt. ltd., G-3,
Complainant Sri.Balaji complex, No.125, Sulthanpet,
Bangalore-560 053
By its authorised signatory Harsh
Balchandani Manager-Marketing
(Advocate-Sri.K.R.Anantha Murthy)
5. Name of the 1. M/s Kleanwell Hygiene pro
Accused No.2372, 16th main,
HAL 2nd stage, Indiranagar,
Bangalore-560 008
By its propreitrix,
Mrs.Yamnarani Ramesh S.
2. Mrs.Yamnarani Ramesh S.
Propreitrix,
M/s Kleanwell Hygiene pro, No.1038,
12th A main, HAL 2nd stage,
Indiranagar,
Bangalore-560 008
2 C.C.No.11638/2014
Also at B.19, KSSIDC Industrial area,
Doddaballapura-561203.
6. The offence U/s.138 of The Negotiable Instruments Act
complained of
7. Opinion of the Accused found guilty
judge
JUDGMENT
The complainant filed this complaint Under Section 200 of Cr.P.C against the accused alleging that the accused has committed the offence punishable Under Sec.138 of the Negotiable Instruments Act, 1881. (In short for N.I.Act)
2. The brief facts of the complainant case is as under:
The complainant is a firm and carrying business of supplying of paper. The accused have purchased paper from the complainant regularly and making periodical payments in installments. The accused No.2 is the Proprietrix of the accused No.1 who is looking after the day to day business activities and issued the cheque to cover the outstanding dues. As on 31-07-2013 the balance outstanding was 3 C.C.No.11638/2014 Rs.3,97,201/- along with interest. The accused has also agreed to repay the over due interest at the rate of 26% to 30% p.a. The accused has issued a cheque bearing No.892947 dated 28-11-2013 for Rs.3,97,201/- drawn on Punjab National Bank, Commercial street branch, Cantonment, Bangalore. The complainant presented the cheque to the bank for encashment, but which was returned with an endorsement "Exceeds arrangement" on 30-11-2013. It was brought to the notice of the accused through legal notice dated 3-12-2013 calling upon the accused to make a payment for amount due, but neither the accused has replied the notice nor made payment of the amount due. Hence this complaint.
3. After filing of this complaint, case was registered as P.C.R. and sworn statement of the complainant was recorded. Thereafter cognizance was taken and registered in Crl.Reg.No.III and summons issued to the accused. In response of summons, accused appeared through their counsel and got enlarged them on bail. The plea was recorded, read over and explained to the accused they pleaded 4 C.C.No.11638/2014 not guilty and claims to be tried. Hence the case is posted for complainant evidence.
4. In order to establish its case, complainant himself examined as PW-1 and got marked 9 documents as Ex-P1 to 9 and closed his side.
5. Accused No.2 herself examined as DW-1 and got marked 6 documents as Ex-D1 to 6 and closed his side. 6. Heard oral arguments from both side. Learned complainant counsel placed some materials in support of his arguments.
1. Rule 34 of KVAT rules 2005 regarding filing of audited annual return in VAT form 240 (which requires audit of goods )
2. Rule 38 of Karnataka VAT rules 2005 regarding filing of monthly returns in VAT form 100 (which requires statement regarding input credit claimed)
3. sec.31 of Karnataka VAT Act 2003 registered audit of accounts by auditor.
4. Section 53 (2)/B of Karnataka VAT act 2003 registered. Issuance of E-sugam form
5. Form VAT 100 5 C.C.No.11638/2014
6. Form VAT 240
7. RBI notification dt.18-3-2013
8. Punjab National Bank policy for collection of cheques dt.1-4-2021.
6. Further learned complainant counsel placed reliance on Apex court decision and unreported judgment of our High Court of Karnataka.
1. Civil Appeal No.20825/20826/17 Arjun Pandith Rao Khotkar Vs Kailash Kushan Rao Gorantyal and others
2. Criminal revision petition 651/2019 between M/s Klean Hygine pro Vs Vishwa Kutumba private Ltd., disposed dt.25-11-2019
7. On perusal of entire material available on record and also on hearing the arguments with the rulings relied the points that would arise for consideration are:
POINTS
1. Whether the complainant proves that the accused had issued cheques in question in 6 C.C.No.11638/2014 discharge of the legally recoverable debt as contended by him?
2. Whether complainant proves that the accused has committed the offence punishable under Sec.138 of NI Act?
3. Whether the complainant is entitled for the relief as prayed in the complaint?
4. What order?
8. My answer to the above points is as follows :-
Point No.1 to 3 : In the Affirmative Point No.4 : As per final order for the following:-
REASONS
9. POINT NO.1 to 3 :- Since these points are interlinked and to avoid repetition they are taken together for common discussion. Before peeping the disputed facts it is appropriate to refer the undisputed facts, which can be gathered from the material placed before this court. On going through the rival contention of the parties, oral and documentary evidence, this complaint presented before 15 ACMM, Bangalore on 29-08-2014. In view of the notification 7 C.C.No.11638/2014 No.ADM I 6/14 dt.30-5-2014 of CMM, Bangalore this case transferred to 42nd ACMM, Bangalore. Further in view of the notification No.ADM I/19/2017 dt.20-11-2017 of CMM, Bangalore this case is transferred to 24th ASCJ and 22nd ACMM (SCCH-26) Bangalore. This court vide judgment dt.23-3-2018 accused was convicted. The aggrieved accused preferred appeal before Hon'ble District and Session court in criminal appeal No.704/2018. On contest the appeal preferred by accused allowed vide judgment dt.12-03-2021 and first appellate court remanded this court for fresh disposal in accordance with law by giving opportunity to both the parties to adduce their further evidence and made observation in the appeal. So as per judgment dt.12-03-2021 the trial court judgment set-aside. The complainant company is a private limited company registered under company Act. The first accused is a partnership firm, the 2nd accused Managing partner of first accused. The cheque in question belongs to accused partnership firm and accused No.2 signed on disputed cheque in the capacity of partner. The accused No.2 having business transaction with complainant company 8 C.C.No.11638/2014 since 2009 to 2019. The cheque in question presented for encashment its got dishonoured for the reason of Exceeds arrangement. The complainant company caused legal notice on the both accused by registered post and by courier which came to be served on the accused. The accused have not sent any reply and did not made any payment within 15 days from the date of receipt of the legal notice.
10. With above admitted facts, now the facts in issue are analyzed, as already stated the accused has denied the entire case of the complainant company as to commission of the offence punishable under section 138 of NI Act. While recording their plea for the said offence and also accused have denied the incriminating circumstance found in the evidence of the complainant. At the time of recording of her statement under section 313 of Cr.P.C., The accused have mainly denied the claim of complainant company, on going through the cross-examination of PW1, it is clear that in addition to the total denial of the case of the complainant company, the accused No.2 specifically contended that she had sale transaction with the complainant company on credit basis, at 9 C.C.No.11638/2014 that point of time, the complainant has taken cheque in question as security which is blank, but signed by accused No.2. After payment, the complainant ought to have return the security cheque to accused No.2 but they failed to do so when she demanded to return the disputed cheque they told to her that they have kept somewhere in the office and returned immediately it is traced, she thought that the officials of complainant will return and handover cheque in question to her immediately traced. She did not placed any order on 10-8-2013 as per Ex-P6, 7, 21 and 22. Ex-P6, 7, 21 and 22 does not bear the seal and signature of the first accused nor the signature of accused No.2. Ex-P6, 7, 21 and 22 does not filed any placing the notice i.e., Ex-P4. She has been not received any notice regarding dishonour of the cheque from the complainant and address of accused No.2 and accused No.1 mentioned in the notice, envelop cover and also in the cause title of the complainant is not the correct address of both accused. So as such no notice of dishonour of cheque has been served to accused No.2. There is no cause of action arose to file this complaint against both accused. The 10 C.C.No.11638/2014 complainant has made use of her security cheque which were given to the complainant as security. Filled the contents of the cheque to it's the said cheques fanciful and imaginary figures, on presented to its bank and got bounced. There is no exist of legally recoverable debt or liability from accused. The cheque in question belongs to Punjab National Bank, Commercial street branch. The accused No.2 in the year 2011 she transferred the said bank account from Punjab National Bank, commercial street branch to Pubjab National Bank, Indiranagara branch. The complainant presented disputed cheque in the year 2013 in Punjab National Bank in commercial street branch. As per their ledger a/c statement, there is no balance as on 8-8-2013. She doing business with complainant since 2010 she normally use to called company manager one Soni and she placed orders for raw materials and she immediately pay amount through NEFT and online and some times she paying through by way of cash, then only the complainant supplied raw materials to accused. She never use to pay amount by way of cheque at any point of time. She did not received any materials from complainant company, 11 C.C.No.11638/2014 there is no acknowledgment from accused for receiving materials from complainant company. There is no agreement between accused No.1 and 2 with complainant company regarding payment of interest. The complainant company raised invoices on 10-8-2013 without supplying any materials. They misused her signed cheque for illegal gain. Therefore, on the above objections the accused seeking the present complaint is not maintainable and liable to be dismissed in limine.
11. It is needless to say that the proceeding "under section 138 of NI Act is an exception to the general principle that the accused is presumed to be innocent until the guilty is proved beyond all reasonable doubt". In the proceedings initiated under section 138 of NI Act, proof beyond all reasonable doubt is subjected to presumption envisaged under section 139 of NI Act. Once the requirement of Sec.138 of NI Act is fulfilled, then it has to be presumed that the cheque was issued for discharge of the legally recoverable debt or liability. The presumption envisaged under Sec.139 of NI Act is mandatory in nature and it has to be raised in all the 12 C.C.No.11638/2014 cases on fulfillment of the requirements of Sec.138 of NI Act. In the ruling rendered by Hon'ble Apex Court in the case of Rangappa V/s Mohan reported in AIR 2010 SC (1898) by relying on several rulings rendered by the Hon'ble Apex Court including the case of Krishnajanardhana Bhat V/s Dattareya G. Hegde reported in AIR 2008 SC (1325) it was held that "existence of legally recoverable debt or liability is a matter of presumption under section 139 of NI Act". The Hon'ble Apex Court disapproved the principle laid down in Krishnajanardhana Bhat case that "initial burden of proving existence of the liability lies upon the complainant". In the case of Sri.B.H.Lakshmi Naryana V/s Smt. Girijamma reported in 2010(4) KCCR 2637 it is held that "the presumption that the cheque was issued for legally recoverable debt is to be presumed". Further the Hon'ble Apex Court in Crl. Appeal No.803/2018 Krishna Rao V/s Shankare Gowda reported in 2018(7) SCJ 300 reiterated the above principle further as provided under Sec.118 it is to be presumed that the cheque in question was issued for consideration on the date found therein.
13 C.C.No.11638/2014
12. In the light of the rival contention of the parties at the outset it is to be determined as to whether the complainant had complied with all the requirements of Sec.138 of NI Act as contended. In order to prove the case of the complainant, One Harsha Balachandani S/o Late.S.K.Balachandani of complainant company was examined as PW-1 and he reiterated the complaint averments in his examination-in-chief by way of affidavit and got documents marked as Ex-P1 to 9. In view of the judgment passed by first appellate court this case restored in original CC No one Smt.Preetham Pramod Vastak as PW-2 and she got produced Ex-P10 to 22. On the other hand, the accused No.2 herself examined as DW-1 and got marked Ex-D1 to D7 & 9 (in CC No.11639/2014) and further accused No.2 in support of her case she called one bank Manager by name Kiran Kumar S/o Nagamuni Assistant Manager, Punjab National Bank, Indiranagara examined as DW-2 and he produced Ex-D8 (in CC No.11639/2014). In addition to that the complainant has produced Ex-P1-board resolution dt.20-12-2013 and complainant company resolved 14 C.C.No.11638/2014 and authorized one Mr.Harish Balachandini marketing, Bangalore to initiate proceedings against accused No.1 and 2 for dishonour of cheques issued by both accused to the complainant company. Ex-P2 cheque bearing No.892947 dt.28-11-2013 which is issued by accused No.2 by representing accused No.1 for a sum of Rs.3,97,201/-. Ex-P3 bank endorsement dt.30-11-2013 by Axis bank Ltd., Bangalore, the cheque in question i.e., Ex-P2 returned for the reasons of Exceeds arrangement. Ex-P4 legal notice dt.13-12- 2013 issued by complainant company to accused 3 addresses. Ex-P4 (a) to (d) postal receipts dt.13-12-2013. Ex-P4(e) to 4
(h) courier receipts both have returned as duly served on accused No.1 and 2. Ex-P4(i) to (k) and Ex-P4(l) to (m)-postal return covers. Ex-P5-ledger a/c statement. Ex-P6 and Ex-P7 - two invoice. Ex-P9 Email conversation dt.3-10-2013 by one Ramesh with complainant company, GM marketing. Ex-P10 certificate of incorporation and memorandum of association and article of association. Ex-P11 Email conversation dt.31-3- 2015. Ex-P12-Email conversation dt.21-2-2014. Ex-P13- 65(b) certificate. Ex-P14-notarised copy of power of attorney. 15 C.C.No.11638/2014 Ex-P15-notarised copy of the board of resolution dt.4-9-2021. Ex-P16-sale register extract for July 2013. Ex-P17-details of VAT paid for July 2013. Ex-P18-VAT returns for July 2013 in form 100. Ex-P19-stock register for the period 1-4-2013 to 31- 3-2014. Ex-P21 and 22- original invoices two in numbers.
13. On perusal of oral evidence of PW-1, it forthcoming that the accused No.2 suggested that the lorry number not mentioned in Ex-P6, 7. Further accused No.2 disputed about the cheque in question issued for security purpose, but complainant company has been misused the said cheque and further she contended during cross examination of PW-1 that she did not received any materials as averred in the complaint, she cleared entire due amount and there is a Nil statement from complainant company even though she did not received any materials later they raised invoices and maintained any ledger statement, the accused No.2 having outstanding due on imaginary figures. Further accused No.2 admitted during course of cross examination that her company situated at Doddaballapura Industrial area and she has not obtained any document regarding shown the cheque issued for security 16 C.C.No.11638/2014 purpose. Further she admitted that the complainant company paid the tax to the government and complainant informed about the balance kept pending in the account of the accused.
14. After this case restored in view of the judgment passed by first appellate court in case Cr.Appeal No.704/2018 vide judgment dated 12-3-2021 on the file of additional city civil and session Judge CCH-68. Hon'ble first appellate court while remanding this matter made some observation in para 13 to 17, the main observation of first appellate court that the complainant company has failed to prove the supply of materials as set-out in invoices. The items described in invoices Ex-P7 are supplied to the accused. Therefore the huge and bulk quantity of tissue papers were allegedly supplied under four invoices which were marked in Ex-P6 and 7 to the accused by the complainant concern, but the wagon or truck in which the materials were transmitted and whether any toll receipts and tax paid receipts and sales tax documents is raised in respect of the transaction is not forthcoming in the testimony of the complainant. 17 C.C.No.11638/2014
15. Further the first appellate court observed that truck number is not mentioned in the invoice in page 5 of the cross examination. Even the supply of such article to the accused and the person, who was authorised to take delivery of such materials under invoice is also not acknowledged the receipt of the materials. Therefore there is difficulty to hold that there is supply of materials on credit basis and for which the cheque in question had been issued in favour of complainant company.
16. Further the observation of the first appellate court that the cheque issued from the same cheque book and series cheque numbers were encashed and transacted in the year 2010. In Ex-P5 the complainant company transactions clearly shows that the amounts were paid regularly during the course of business. The cheque in question has been issued to the last suspected transaction to the supply of materials and the supply was made on credit basis or not? Further it is observation of the first appellate court that on 3-6-2013 and 8-8-2013, the ledger a/c of the complainant concern itself shows that there is "Nil balance" and the accused concern is 18 C.C.No.11638/2014 not due of any amount. Therefore how the transaction riped on 10-8-2013 within a day or two for the supply of these materials without being authenticated evidence of lorry receipts and tax paid receipts and delivery note is leading to suspicion. Further first appellate court made observation in its judgment that the supply was made in the month of August 2013, but the cheque was allegedly issued on 28-11-2013 which is belated and subsequent date. The invoices is dated 10-8-2013 and the credit facility is usually given for one month i.e., upto 8-9-2013 and the rate of interest for default is mentioned as 26% p.a. and from 9-9-2013 it is at 30%. the interest fixed on any invoices is exorbitant, it is not permissible in the common course of business. Further more first appellate court made observation in its judgment that PW-1 denied the payment of Rs.2 lakh made by the accused through RTGS on 13-6-2013 that has not been shown in Ex- P5 ledger extract of the complainant concern. But it is evidenced in Ex-D3 produced by the accused. Therefore considering all above factors needs to be re- appreciated on cogent, consistent, corelative and confirmative of evidence. 19 C.C.No.11638/2014 Hence this case has been remanded before trial court for fresh disposal in accordance with law.
17. This case has been restored before trial court for fresh consideration with liberty given to both parties to adduce further evidence. The complainant company substituted one Pritam Pramod Vaitak and examined as PW-2 she produced Ex-P10 to 22. Ex-P10 certificate of incorporation and memorandum of association and article of association. Ex- P11 Email conversation dt.31-3-2015. Ex-P12-Email conversation dt.21-2-2014. Ex-P13-65(b) certificate. Ex-P14- notarised copy of power of attorney. Ex-P15-notarised copy of the board of resolution dt.4-9-2021. Ex-P16-sale register extract for July 2013. Ex-P17-details of VAT paid for July 2013. Ex-P18-VAT returns for July 2013 in form 100. Ex-P19- stock register for the period 1-4-2013 to 31-3-2014. Ex-P21 and 22- original invoices two in numbers. This PW-2 lengthy cross examined by accused during course of cross examination PW-2 admitted that she was a law graduate and she practiced as a advocate, she was employed in complainant company since two years and she has been associated with 20 C.C.No.11638/2014 complainant company she know about this case through documents, she had no personal knowledge about this case. During the course of cross examination, PW-2 admitted that cheque in question drawn on commercial street branch, Punjab National Bank. Further she admitted that cheque bearing No.836741 sum of Rs.90,000/- issued in favour of G.Das company on October 2010. Similarly on 26-10-2010 another cheque bearing No.836751 for a sum of Rs.60,000/- paid by the accused and on 27-10-2010 the accused paid through cheque bearing No.836757 a sum of Rs.1,80,000/- to G.Das company. The cheque in question belongs to the year 2010 and it is non CTC cheque. Further PW-2 admitted that on 8-8-2013 the outstanding due from the accused was Nil. Further PW-2 deposed during cross examination that Ex-P6,7, 21 and 22 invoices produced by the complainant are genuine and supply was made on 10-8-2013 and payment was also due on the same day. 69Bundles were supplied to the accused. There is a acknowledgment in Ex-P6,7, 21 and 22 for receiving materials from accused. The materials directly supplied from Amlaid paper mills manufacturers in Madhya 21 C.C.No.11638/2014 pradesh. Further PW-2 admitted that as per Ex-P6,7, 21 and 22 which is printed on backside, the materials transport from Bangalore to Doddaballapura and the materials freight on road from Bangalore and delivered to godown Doddaballapura. Further PW-2 admitted during course of cross examination that the materials mentioned in Ex-P21 to 25 (in CC No.11639/2014) had been directly supplied by oriental paper mills to Kleanwell Hygene pro and Ex-P21 to 24 are consignee copies. This copies goes to consignee Kleanwell Hygine product. Further PW-2 admitted that in invoices lorry number was not mentioned. Further she admitted during cross examination that as per Ex-P21 to 24 lorry has been dispatched from Madhya Pradesh on 31-7-2013 and directly delivered to the accused. Further she admitted that Ex-P6,7, 21 and 22 (in CC No.11638/2014) is figures mentioned in Ex-P6,7, 21 and 22 do not tally with Ex-P21 to 24. Further PW-2 denied the suggestion of accused Ex-P10 to 26 manipulated to improve the case after remand by first appellate court. Further PW-2 admitted that complainant company branch was closed from 2016-2017 stock register 22 C.C.No.11638/2014 extract are got print from Bangalore computers. The complainant company Chennai branch they provided soft copy to Bangalore, same was get printed here i.e., in Bangalore. Further Pw-2 admitted that in her 65(b) certificate she had not stated about the soft copy was provided from Chennai branch and get downloaded from Bangalore. Further PW-2 during course of cross examination that as per Ex-P21 to 24 total value of goods supplied is Rs.7,29,687/- and as per Ex-P16 to 19, goods were dispatched from Madhya Pradesh on 31-07- 2013. Further she admitted in Ex-P16 to 19 (In CC No.11639/2014) two lorry numbers mentioned. Further she admitted before court during course of cross examination that in Ex-P16 to 24 to whom goods were delivered and when it was delivered was not mentioned or forthcoming. As per Ex- P5 (in CC No.11638/2014) total due of accused No.2 Rs.3,97,201/- and there is no separate invoice for Rs.3,97,201/- from the record. She did not aware about in case of inter state transportation CST is applicable. Further she admitted that in Ex-P6,7, 21 and 22 ( 4 invoices ) there is no reference the Ex-P6,7, 21 and 22 belongs to inter state 23 C.C.No.11638/2014 transaction or materials supplied directly from Madhya Pradesh to Doddaballapur. Further she deposed that in Ex- P6,7, 21 and 22 goods supplied directly by the complainant to accused by charging VAT at 5.5% on 10-08-2013. Further she admitted in Ex-D3 on 13-6-2013 money transfer to G.Das company from Klean well Hygine pro. Further PW-2 admitted during cross examination that in Ex-P16 to 19 date mentioned as 31-7-2013 and in Ex-P6,7, 21 and 22 invoice date mentioned as 10-08-2013 and complainant company has not produced invoices dt.31-07-2013 and other suggestions made by accused are clearly and categorically denied.
18. On the other hand, after remanded by First Appellate court the accused No.2 give her oral evidence before this court as DW-1. She stated in her evidence that the first accused is a firm, the 2nd accused is a partner she doing business transaction with complainant since 2010. When she commencing business transaction with complainant they took signed cheque for security purpose for future business transaction. The said cheque belongs to Punjab National Bank, commercial street branch. She transferred her bank a/c 24 C.C.No.11638/2014 in the year 2011 from commercial street branch to Indiranagar branch, PNB bank. The cheque in question presented in the year 2013 by the complainant company before PNB, commercial street branch. The ledger a/c maintained by the complainant as on date 8-8-2013 the accused No.2 balance was Nil. She normally ordered raw materials over phone through complainant company manager one Sony and after purchase she immediately made payment to purchase materials through NEFT and online and sometimes she use to made payment by way of cash. Then complainant company transported materials to accused No.2. She never purchased any materials by giving cheque at any point of time. She stops purchase materials from complainant company, then compliannt company misused her security cheque and filed false case against accused No.1 and 2. The complainant company did not send any materials to accused and there is no acknowledgment by the accused for receiving materials from complainant company. There is no separate agreement between accused and complainant company for paying interest, she did not received any notice from complainant 25 C.C.No.11638/2014 company. The complainant company suo moto raised invoices on 10-8-2013. She did'nt received any materials as per invoice dt.10-8-2013. They used her signed cheque for the above invoice dt.10-8-2013. They misused her signed cheque and she produced one document i.e., certificate issued by PNB dt.2-9-2021 and which is marked as Ex-D7 (in CC No.11639/2014). She subjected cross examination . During course of cross examination she admitted that her complete name Smt.Yamuna Ramesh and her husband name Ramesh and she was the partner of M/s Klean Well polymers and proprietrix of M/s Klean well Hygne pro and both registered address No.2372, 6th HAL 2nd stage, Indiranagar, Bangalore- 560008 her husband was another partner to M/s Klean well polymers and he came as a partner from the year 2011-2012, her husband doing daily business transaction of firm M/s Klean well hygine pro started on 13-7-2009. M/s Klean Well polymers started on 1-4-2011. M/s Klean well Hygine pro doing tissue paper manufacturing business. M/s Klean well polymers doing business of manufacturing of plastic bags. For manufacturing plastic bags, paper is required, both 26 C.C.No.11638/2014 proprietorship and partnership firm manufacturing unit located in Doddaballapur in shed No.B17 and B19. She get necessary permission from competent authority and VAT permission, she regularly paying PAN, TIN excise VAT to competent authorities. M/s Klean Well hygine pro and M/s Klean well polymers both factories were closed in the year 2020. DW-1 admitted during course of cross examination that she having business transaction with complainant company since 2009-2010 and she placed orders when she required materials and complainant company supplied materials to her firm and proprietorship. There is no separate agreement between accused No.2 and complainant regarding making payment for materials supplied by the complainant company. She contended during course of cross examination that she had document to show she always use to pay money to complainant company and then they supplied materials to her. She had phone message and whatsapp message documents in her phone. Further DW-1 admitted during course of cross examination that the complainant company had been supplied raw materials to accused and they 27 C.C.No.11638/2014 maintained running a/c for such materials supplied to accused. She clearly admitted she did not gave any reply notice to notice issued by complainant u/s 138(b). The cheque in question bearing signature of authorized signatory she did not gave any authorization to sign on cheques. Further she admitted that she did not get any acknowledgment from complainant company for having security cheques in their possession. Further she deposed during cross examination that in Ex-D2 (in CC No.11639/2014) dt.13-6-2013 she transferred amount of Rs.2 lakh to complainant company she had RTGS request letter with her custody and she undertake for production of the same before this court. Further she contended during cross examination that as on date of 13-6- 2013 there is no outstanding balance by M/s Klean Hygine pro and Kleanwell polymers towards complainant company and DW-1 denied the suggestion of complainant that after payment of Rs.2 lakhs M/s Kleanwell polymers having outstanding due of Rs.3,72,216/-. Further she admitted that on 17-6-2013 Rs.3,52,216/- paid by accused and having total balance of Rs.20,000/-. Further she admitted that on 18-6- 28 C.C.No.11638/2014 2013 she again paid Rs.20,000/- and her balance was Nil. Further she contended during course of cross examination that on 13-6-2013 Rs.2 lakh transferred to complainant company through RTGS from Kleanwell hygine pro. But this fact was not intimated in written form to complainant. Further she contended that she made payment after invoice raised by the complainant company i.e., on 18-6-2013 from her M/s Kleanwell polymers a/c. She having facility of net banking to her bank a/c and she gave her mobile number to bank . Further she admitted if any payment credited to her a/c or any amount debited from her a/c she could receive messages from her bank, but she did not received any message from bank regarding dishonour of cheque in question. Further she admitted that when she get bank statement, there was mention of dishonour of this cheque in her bank statement. After got information about dishonour of instant cheque in question she spoke with complainant in the month of October and November 2013. Further admitted during course of cross examination that she got international standard certificate for her company for manufacturing 29 C.C.No.11638/2014 accounting and administration for production of tissue papers and further she admitted she was the customer for Infosys for a period of 4 to 5 years. Further she stated during course of cross examination that they maintained relevant registers for input and output transport of materials at the spot of security outpost. She had problem to produce the said registers due to company closed. Further she admitted during cross examination that they ought to pay VAT returns and excise returns every completion of 3 months to her companies. Further she denied about the complainant paid VAT tax on Ex-P6,7, 21 and 22 and contended she did not received any goods from complainant as per Ex-P6,7, 21 and 22. Further she contended that Ex-D4 she made tax payment through online, she did not have original return document. Ex-D4 (in CC NO.11639/2014) pertaining to VAT taxes to her company, there is no way concern to complainant company. Ex-D5 (in CC No.11639/2014) relates to accused No.2 and tax department and she undertakes for production of entire documents pertaining to Ex-D5 before this court. Further she admitted that in CC 11639/14 Ex-D1 no where relates to 30 C.C.No.11638/2014 complainant. But she contended she informed orally to the complainant about Ex-D1. Further she denied the suggestion of complainant she had been always received material through trucks. But she herself deposed materials supplied complainant through trucks. Further she admitted that the company name mentioned in Ex-D5 i.e., Orient paper mills amlai was not direct seller to accused No.2. Further she denied the suggestion of complainant that do you had paper pertaining to orient paper mills amlai in your office or house, but she deposed verify and submit later. Further she contended that she did not received materials from complainant company, therefore she did not verify E-sugam portal. Further she admitted there can be chance to see E- sugam portal the details uploaded by anybody and she contended she did not check E-sugam portal details in the year 2013, materials were supplied by other suppliers. Further she also denied E-mail conversation between complainant company and accused No.2 husband as per Ex-P9. She admitted in the year 2013 her husband working as marketing head. Further she deposed that she having net banking facility 31 C.C.No.11638/2014 to both factories i.e., M/s Kleanwell hygine pro and M/s Kleanwell polymers and she only authorized signatory for net banking. Further she admitted Ex-D8 (in CC No.11639/2014) issued by bank on the request of accused No.2. Further she admitted that she did not informed to complainant company in writing for transfer her company account but she contended she informed orally. Further DW-1 admitted that there is a practice when she received goods from complainant company, its contain acknowledgment. If there is any discrepancy or damage in goods immediately sent back photocopy of the discrepancy or damage to complainant company. further she clearly admitted she did not took hire vehicles for transportation of finished goods. Further she expressed inability to produce expense register pertaining to her factory from June 2013 to August 2013 and document pertaining to Ex-D4 (in CC No.11639/2014) input breakup claim and denied the suggestion of complainant. Ex-D6 i.e., revised return created for the purpose of this case and other suggestions putforth by complainant are clearly and categorically denied.
32 C.C.No.11638/2014
19. On conjoint reading of the entire oral and documentary evidence, they remains no doubt that the complainant company had complied with all the requirements of the Sec.138 of NI Act. This being the fact, as discussed earlier in the light of the dictum of the Hon'ble Apex Court, it goes without saying that the presumption available under section 138 of NI Act is required to be drawn on some presume that the accused had issued the cheque as per Ex.P2 towards discharge of legally recoverable debt. It is also presumed that the cheque was issued for consideration on the date as mentioned therein.
20. It is well settled principle of law through catena of decisions that though the statutory presumptions available under Sec.118 and 139 of NI Act are mandatory in nature, they are the rebuttal one. It is needless to say that when the complainant proves the requirement of Sec.138 of NI Act the onus of proof shifts and lies on the shoulder of the accused to rebut the presumptions available in favour of the complainant. It is the accused who has to rebut the presumptions with all preponderance of probability with clear, cogent and convincing 33 C.C.No.11638/2014 evidence though, not beyond all reasonable doubt. The accused has to make out probable defence by producing convincing acceptable evidence and thereafter only burden shifts on the shoulder of the complainant. It is also settled law that to rebut the presumption, the accused can also rely upon presumptions available under the Evidence Act. It is also set in rest that in order to rebut the presumption it is not imperative on the part of the accused to step into the witness box and he may discharge his burden on the basis of the Acts elicited in the cross-examination of the complainant. It is also equally true that, if the accused places such evidence so as to disbelieve the case of the complainant, then the presumptions stand rebutted. This view is also supported with the decisions of the Hon'ble Apex Court reported in 2006(3) SCC (CRL) 30 Tamilnadu Marcantile Bank Limited V/s M/s Subbaiah Gas Agency and others. ILR 2009 (2) 1633 Kumar Exports V/s Sharma Carpets, AIR 2008 SCC 1325 Krishnajanardhana V/s Dattareya G. Hegde, 2013 SCR (SAR) CRI 373 Vijay V/s Lakshman & another and AIR 2010 SC 1898 Rangappa V/s Mohan and Crl. Appeal 34 C.C.No.11638/2014 No.230 & 231/2019 Bir Singh V/s Mukesh Kumar. Now the question that would arise is whether the accused has rebutted the statutory presumptions available in favour of the complainant.
21. With the evidence of PW-1 and 2, the contents of documents are analyzed, it is forthcoming that, the complainant and accused having business transactions on credit basis. The complainant company supplied materials to accused. The accused No.2 makes payment within credit periods. The complainant and accused having good business transactions till 2012. Afterwards accused had outstanding due a sum of Rs.3,97,201/- for different invoices. The complainant company regularly having conversation with accused No.2 and her husband by name Ramesh. The accused No.2. and her husband have sought further time for clearance of outstanding due. The complainant produced Ex- P5 to show the accused having outstanding due of Rs.3,97,201/- in year 2013 and complainant produced two invoices for supplying materials to accused. The husband of accused No.2 having E-mail conversation with complainant 35 C.C.No.11638/2014 company in 20-09-2013 and 3-10-2013 and sought further time for clearing entire due payment and sought further time. So as per Ex-P6,7,21 and 22, the complainant supplied materials to accused on credit basis. Further it is pertinent to note after institution of this case against accused February 21, 2014 the husband of accused No.2 requested complainant company some more time for clear entire amount. The complainant company also made request to clear outstanding due which is pending since July 2013. The complainant company produced Ex-P16 to 19 (in CC NO.11639/2014) which were lorry receipts pertaining to the goods supplied dt.31-7-2013, the said lorry receipts contains full particulars of consignee and consignor, description of goods and goods dispatched from which place to and transported to which place and actual weight of goods and actual charges imposed for transportation. Ex-P21 to 24 are tax return form, this is also contains all particulars pertaining to invoices, consignor, consignee, date of invoices and tax imposed by the competent government. The said materials as mentioned in Ex-P21 to 24 (in CC No.11639/2014) directly supplied from Orient paper 36 C.C.No.11638/2014 mills amlai, Madhya Pradesh, Bhupal to ultimate consignee, Kleanwell hygine pro, No.B, 19, KSSIDC, Industrial estate, Yellapura, Kasaba hobli, Doddaballapura. Ex-P21 to 24 contain full description of goods and specification of size in centimeters, tin numbers of consignor and consignee, tax paid by complainant on 31-7-2013. The main defence of the accused Ex-P10 to 22 and Ex-P10 to 26 (in CC No.11639/2014) created for this case after remanding matter for fresh consideration. Except bear suggestion to substantiate their defence accused have not produced any materials. This document belongs to undisputed point of time, the complainant company maintained relevant documents for supplying materials to accused they maintained stock register as per Ex-P25 (in CC No.11639/2014) and they maintained running account as per Ex-P5, 6,7, 21 and 22 and they raised invoices and they produced lorry receipts and E-sugam for, the particulars mentioned in complainant document tally with account statement and materials supplied to accused No.1 and 2. The accused No.2 produced Ex-D2 (in CC No.11639/2014) entire account statement from 30-11-2010 37 C.C.No.11638/2014 to 2-4-2013 On 13-6-2013, the accused made payment through RTGS for Rs.2 lakhs in favour of complainant company. The said amount accepted by complainant during trial. Even though credit given for Rs.2 lakhs to Kleanwell hygine pro the accused still have due towards complainant company. The accused No.2 did not produced form VAT 100, she produced Ex-D4(in CC No.11639/2014) it is a revised return filed on 13-11-2013. There is no proper explanation from accused No.2 and she expressed inability produce original VAT return pertaining to her company, she getting tax discount from competent authority, but she intentionally did not produced original VAT return statement. (A VAT return is a tax form, you file to show how much VAT you are due to pay HMRC. Your VAT return should contain your total sales and purchases for the period. The amount of VAT you owe and the amount you can reclaim and what your VAT refund is. VAT should file a VAT form at the end of each accounting period, which is every three months. As such it can file four VAT returns each year. Its need to include the relevant start and end dates on each VAT 38 C.C.No.11638/2014 return. In online a/c it will be able to tell when your VAT returns are due and when the payment must clear HMRCs a/c. There is a government guidelines to do VAT return. There are different rates of VAT including standard 20%, reduced 5% and 0 rate 0%, it cannot always reclaim VAT on purchases and there are severe penalties for errors including penalties of 15% for undeclared errors. There is a provision in cash accounting scheme you will pay the VAT collected on payments received from customers instead of the account of VAT you have invoiced for. You are eligible for cash accounting scheme if your VAT turnover is less than 1.35 per year and another provision is payment through online. It is a easiest way to file to submit paper work, VAT return online, but its need VAT number and government gateway a/c. This is a digital record, it cannot be chance to fabricate after couples of year). The accused No.2 mainly her reliance on Ex-D7(in CC No.11639/2014) and she examined bank official as DW-2, the said bank account transferred from Bangalore cantonment to Indiranagar on 14-10-2010. During course of cross 39 C.C.No.11638/2014 examination, DW-2 deposed before court that he working as a Assistant Manager, he joined bank service in the year 2015 as a clerk, now he promoted as Assistant Manager, he completed professional examination and departmental examination and he stated before court that the head office of PNB situated in New Delhi and its branches located all over India in Bangalore East circle having 45 branches. Further he admitted cheque presented before bank for encashment it scanned and sent to central clearance. The wordings printed on cheques i.e., payable at any branch mean that cheque amount may payable at any branch of Punjab National Bank. The a/c of cheque in question was cash credit a/c, its issued for purchase of goods the Punjab national bank working as per the directions issued by RBI, he did'nt knew fully about CTS and non-CTS cheques. The cheque in question was non CTS cheque, now they not issued non CTS cheques from banks and he denied the suggestion of till today non CTS cheques honoured from the banks and further he contended he can produce document before this court for not honouring non CTS cheques from banks. Further he stated before this court 40 C.C.No.11638/2014 that his bank did not made any official communication with its customers for return of non CTS cheques. He did not aware about circulars, orders issued by his own bank for not to honour non CTS cheques. Further he deposed that he did not verify file pertaining to accused bank a/c file.
22. The purpose of called and examined DW-2 by the accused that to strengthening the Ex-D8 (in CC No.11639/2014). Admittedly DW-2 was not author of document, but anyhow he was authorized by concerned bank manager to depose evidence before this court. It is admitted fact the accused No.2 transferred her bank a/c without informing complainant in the year 2010 in written form, but she contended she informed orally to complainant company. The issuance of cheque without having sufficient balance is an offence, it is duty bounded on a/c holder before issuing cheques they could have full knowledge about consequence of issuance of cheque. The accused No.2 having business transaction with complainant company since 2009 to 2012 and she had outstanding due of lakhs together to complainant company. The complainant company made request and 41 C.C.No.11638/2014 demanded several times for clearing outstanding due for continuation of business with complainant company. The accused No.2 and her husband requested several time for extension of time for clear outstanding due and commence further business with complainant company. The accused No.2 fully aware of this facts, she intentionally issued cheque in question which is took from bank in the year 2010. It is duty of accused No.2 when she get transfer a/c from one branch to another branch she shall return entire cheques took from the bank. But she did not do so. She contending in this case that she get transfer her firm a/c from cantonment branch to Indiranagar branch and she took cheque in the year 2010 and alleged transaction pertains 2013. Therefore there is no chance of handover cheques in the year 2013, the complainant company misused her security cheque which is in the possession of complainant company. There is no bar for issuance of cheque which is earlier took from the bank. If she really return cheques to bank and immediately she intimated in written form to complainant company that scenario is different. Therefore from this court opinion, the contention 42 C.C.No.11638/2014 raised by accused No.2 regarding she get transferred her firm bank a/c from cantonment branch to Indiranagar branch and evidence adduced by DW-2 was no where helpful case of accused. Further it is important to note the facts raised by DW-2 during course of cross examination whether non CTS cheques were honoured by the bank or not till today. The learned counsel for complainant placed RBI notification dt.18- 03-2013 and Punjab National Bank policy for collection of cheque dt.01-04-2013, in that notification RBI instructed no fresh post dated cheque (PDC)/equated monthly installment (EMI) cheques (either in old format or new CTS 2010 format) shall be accepted by lending banks in locations where the facility of ECS/RECS (debit) is available. Lending bank shall make all efforts to convert existing PDCs in such locations into ECS/RECS (debit) by obtaining fresh mandates from the borrowers. The above instructions are issued u/s 18 of the payment and settlement systems Act (Act 51 of 2007). So above notification there is provision to honour non CTS cheques. The DW-2 deposed before this court against to recent RBI circular and Punjab National Bank policy for 43 C.C.No.11638/2014 collection of cheques and instrument circular No.6/20 dt.30-03-2021. Hence the contention of the accused that they issued cheque in the year 2010 and complainant company presented cheque in question before commercial street branch. The accused No.2 got transferred her a/c with effect from 14-10-2010. The cheque in question presented in the year 2013. So it is clear the complainant company misused signed cheque of accused No.2. This defence was unsustainable, therefore rejected as meritless. Further it is important to mention about excise tax document, the complainant mainly relied excise tax document. Hence it is worthful to discuss much. (In general an excise tax is a tax is imposed on the sale of specific goods or services or on certain uses. Federal excise tax is usually imposed on the sale of things like fuel, airline tickets, heavy trucks and highway tractors, indore tanning, tires, tobacco and other goods services. Business that are subject to excise tax generally must. File a form 720, quarterly federal excise tax return to report the tax to the IRS Excise taxes are imposed on a vide variety of goods services and activities. 44 C.C.No.11638/2014 The tax may be imposed at the time of No.(1) import (2) sale by the manufacturer (3) sale by the retailer (4) use by the manufacturer or consumer. Many excise taxes go into trust funds for projects related to the taxed product or service, such as highway and airport improvements. Excise taxes are independent of income taxes. Often, the retailer manufacturer or importer must pay the excise tax to the IRS and file the form 720. They may pass the cost of the excise tax and to the buyer. Some excise taxes are collected by a 3rd party, the 3rd party then sent the tax to the IRS and files to the form 720. The IRS does accept paper excise tax returns. However electronic filing is strongly encouraged, when possible to make this process easier for tax payers. The contact information for all approved E-file transmitters of excise forms is listed on IRS.gov. businesses can submit forms online 24 hours a day. When businesses E-file, they get confirmation that the IRS received their form. Also, E-filing reduces processing time and errors. To electronically file, business ax payers will have to pay the providers fee for online 45 C.C.No.11638/2014 submission. In the instant case, the manufacturer of paper directly sent materials to consignee i.e., Kleanwell Hygine pro, No.B19, Doddaballapur. As per Ex-P21 to 24 there is question of paying CST does not arise. Because the manufacturer or buyer or 3rd party can file excise tax to IRS. In the instant case, the tax collected by the competent authority. Therefore question for paying CST does not arise.
23. The main defence of the accused No.2 that she gave her blank signed cheques to the complainant company and she started doing business with other company. Therefore they misused her blank signed cheques in the year 2013 and filed false case against her. In this background, it is worthful to discuss Section 20 of NI Act. Section 20 of NI Act it reads as under:-
Section 20:- " Inchoate stamped instruments- Where one person signs and delivers to another person a paper stamped in accordance with law relating to negotiable instruments then in force in (India), and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder 46 C.C.No.11638/2014 thereof to make or complete, as the case may be upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to paid there under''.
24. The accused contended that they have issued blank cheque. What is the effect of issuing a blank cheque is to be considered at this stage. Where the cheque is signed leaving blank all other particulars and handed over to the payee authorizing her to fillup the blanks as agreed upon, it is valid in law. Therefore, when such a cheque is dishonoured, section 138 applies. ILR 2001 KAR 4127 in the case of S.R.Muralidhar Vs G.Y.Ashok. In this regard section 20 of the Act is very clear. Here the stand of the accused is not maintainable. 47 C.C.No.11638/2014
25. In the present case, since the cheque as well as the signature has been accepted by the accused No.2 the presumption u/s 139 would operate. Thus the burden was on the accused No.2 to disprove the cheque or the existence of any legally recoverable debt or liability. However it may be noted that the cheque was dishonoured because Exceeds arrangement, this implies that the accused No.2 had knowledge of the cheque being presented to the bank. The accused No.2 took defence in this case that the accused having account in Punjab National Bank and she got transferred the said account in the year 2010. When a/c transferred from Punjab National Bank, commercial street branch to Indiranagar branch, the question of issuing alleged cheque in the year 2013 does not arise. Her a/c was got transferred with effect from 14-10-2010. Therefore she trying to project her case as the complainant company misused her security cheque. Admittedly she did not returned cheques obtained from Punjab National Bank, commercial street branch and transferring a/c from commercial street branch to Indiranagar branch was not informed to complainant in 48 C.C.No.11638/2014 written form. Thus the story broughtout by accused is unworthy of credit. Apart from being unsupported by any evidence. Once factum of bank a/c and signature on disputed cheque admitted it is mandatory to the part of court to presume in favour of complainant, but such presumption shall be rebutted. The complainant discharged his burden by placing Ex-P1 to 26 ((in CC No.11639/2014) and Ex-P1 to 22 (in present case) and he success in proving his complaint averments with oral and documentary evidence. Now onus shifted on accused to prove she did not received any materials from complainant company as alleged in the complaint and she cleared entire outstanding due amount towards complainant company. But accused failed to rebut the same by cogent and believable evidence. The accused No.2. mainly took contention is that the complainant has misused the blank signed cheque issued by the accused No.2 But accused No.2 has not lodged any complaint with regard to that nor given any reply to the notice issued by the complainant. These defences are not accepted by this court. Hence in the instant case the accused has failed to rebut presumption 49 C.C.No.11638/2014 available to complainant under section 118 A and 139 of NI Act. Hence the inevitable conclusion is that accused has committed an offence u/s 138 of NI Act.
26. Further it is worthful to refer and relied Hon'ble Apex court decision on the point of cheque issued for security purpose and dishonoured its attracted Section 138 of NI Act. In recent decision Hon'ble Supreme Court of India Sripathi Singh Vs State of Jarkhand 2021 SCC 1002. - clearly held that " a cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstances "Security" in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. A cheque issued as a security, it is given, deposited or pledged to make certain the fulfillment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified time framed and issues a cheque as security to secure such repayment if the loan amount is not repaid in 50 C.C.No.11638/2014 any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitle to present the same. On such presentation, if the same is dishonoured, the consequences contemplated u/s 138 and the other provisions of NI Act would flow".
27. The cheque is an instrument comes under the N.I Act holder in due course of the cheque, has got good title over the cheque. Therefore on the basis of evidence of PW1 and 2 and documentary evidence it clearly establish that the accused No.2 issued the disputed cheque to the complainant company for legally dischargeable debt. The complainant company has complied all essential ingredients of Sec.138 of NI Act. When complainant company complied all essential ingredients of Sec.138, as per Sec.139 of NI Act the cheque is issued for legally recoverable debt.
51 C.C.No.11638/2014
28. On careful examination of all the documents of complainant, it is very clear that the complainant company filed this complaint well within time and complied all the ingredients of Section 138 of N.I. Act 1881. The presumption Under Section 139 of the NI Act is a presumption of law, it is not a presumption of fact. This presumption has to be raised by the court in all the cases once the factum of dishonor is established. The onus of proof to rebut this presumption lies on the accused. The standard of such rebuttable evidence depends on the facts and circumstances of each case. Such evidence must be sufficient to prove the case. Therefore a mere explanation is not sufficient to rebut this presumption of law. It is profitable to refer and relied Hon'ble Apex court recent decision passed in Criminal Appeal No.123/2021 arising out of special leave petition (criminal) 1876/2018 between M/s Kalamani Tex and another Vs P.Balasubramanian disposal date on 10-02-2021 (three judges bench). In this case, Apex court held that, "once signature on cheque admitted by the accused, court ought to have presume 52 C.C.No.11638/2014 that, cheque was issued as consideration for a legally enforceable debt."
29. It is pertinent to refer and relied Hon'ble Apex court recent decision passed in Criminal Appeal No.292/21 between Sumethi Vij Vs. M/s Paramount Tech FAB Industries (Division Bench) disposed dated 9.3.2021 In this case Apex Court held that under Section 139 of the Act, a presumption is raised that holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced by the accused which on preponderance of probability (not beyond reasonable doubt as in the case of criminal offence. Must then be proved.
30. Further Apex court clarified that there is a mandate of presumption of consideration in terms of the provision of the Act under Section 118 and 139 of Negotiable Instrument Act. The onus shifts to the accused on proof of issuance of cheque to rebut the 53 C.C.No.11638/2014 presumption that the cheque was issued not for discharge of any debt or liability in terms of section 138 of the NI Act.
31. As per N.I. Act, the presumption is in favour of holder of cheque. Here, the holder of cheque is complainant and presumption is in favour of complainant. It is burden on the accused to rebut the above presumption. As per Section 118 of N.I Act, presumption has to be raised by the court in all the cases once the factum of dishonour is established, but it is rebuttal presumption. The onus of proof to rebut this presumption lies on the accused. The standard of such rebuttal evidence depends on the facts and circumstances of each case. Such evidence must be sufficient, cogent and should prove beyond any reasonable doubt. The accused has not taken and proved defence to rebut the presumption of law available in favour of the complainant envisaged U/s 118 r/w section 139 of NI Act. Accordingly the case of the complainant is acceptable as the complainant has proved that accused has intentionally without having sufficient money in his account 54 C.C.No.11638/2014 and issued disputed cheque. Therefore, a mere explanation is not enough to repel this presumption of law.
32. Therefore in my considered view, the complainant company has established his case by way of documentary as well as oral evidence. Being accused liable to pay outstanding due amount of Rs.3,97,201/- to the complainant company. Hence my answer to point No.1 to 3 in the Affirmative.
33. Point No.4: Since this court has already held that the cheque in question was issued towards discharge of legally enforceable debt and the accused has committed an offence U/s 138 of NI Act. It is worth to note that the offence is of the nature of civil wrong. This court has power to impose both sentence of imprisonment and fine on the accused. This court is of the opinion that it is appropriate to impose the sentence of fine only on the accused, instead of sentencing him to undergo imprisonment. Hon'ble supreme court of India in a decision reported in 2015(17) SCC 368 in a case of 55 C.C.No.11638/2014 H.K.Pukhraj Vs D.Parsmal observed that having regard to the length of trial and date of issuance of cheque it is necessary to award reasonable interest on the cheque amount along with cost of litigation. The present complaint filed in the year 2014, there is a agreed terms in invoices by both parties agreed to pay due interest at the rate of 26% and 30% p.a. " Section 79 of the NI Act specified rate of interest is expressly made payable on a promissory note or bill of exchange, interest shall be calculated at the rate specified on the amount of the principle money, due thereon, from the date of instrument, until tender or realization of such amount, or until such date after the institution of a suit to recover such amount as the court directs". By considering this case, length of trial and nature of business, this court came to conclusion, it is just and proper to extend twice the amount of the cheque in favour of complainant company, it would meets ends of justice. In the result, I proceed to pass the following:-
56 C.C.No.11638/2014
-: O R D E R :-
By Acting U/s 255(2) of Cr.P.C the accused is hereby convicted for the offence punishable U/s 138 of NI Act.
The accused is hereby sentenced to pay fine of Rs.8,04,402/- (Rupees eight lakhs four thousand four hundred and two only) and acting U/s 357(3) of Cr.P.C. out of the total fine amount payable by the accused a sum of Rs.7,94,402/- shall be payable to the complainant as compensation and remaining amount of Rs.10,000/- shall be defrayed as state expense.
In default of payment of fine the accused shall under go simple imprisonment for a period of 6 months.
It is further made it clear that if the accused opt to undergo imprisonment, it does not absolve him from liability of paying compensation to the complainant.
Office is hereby directed to supply free certified copy of this judgment to the accused forthwith.
(Dictated to the stenographer, through online computer, thereof is corrected and then pronounced by me in the open Court on this the 5th January 2022) (R.MAHESHA) XXIV ADDL. SMALL CAUSES JUDGE & A.C.M.M. BENGALURU.57 C.C.No.11638/2014
ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
PW-1: Harsh Balchandani PW-2 : Pritam Pramod Vastak
DOCUMENTS MARKED ON BEHALF OF THE COMPLAINANT:
Ex.P-1: Certified copy of resolution
Ex.P-2: Cheque
Ex.P-2(a): Signature of the accused
Ex.P-3: Bank memo
Ex.P-4: Notice
Ex.P-4(a) to (c): 3 Postal receipt
Ex.P-4(d) and (e): Postal acknowledgments
Ex.P-4(i)(j): 2 Postal cover
Ex.P-5: Ledger extract
Ex.P-6: Statement of account
Ex.P-7: 4 invoices
Ex.P-8: Complaint
Ex.P-9: Email record
Ex-P10 Certificate of incorporation and
memorandum of association and article
of association.
Ex-P11 Email conversation dt.31-3-2015.
Ex-P12- Email conversation dt.21-2-2014.
Ex-P13- 65(b) certificate.
58 C.C.No.11638/2014
Ex-P14- Notarised copy of power of attorney.
Ex-P15- Notarised copy of the board of resolution
dt.4-9-2021.
Ex-P16 - Sales register extract
Ex-P17- Deails of VAT paid for July 2013
Ex-P18- VAT returns
Ex-P19 Stock register for the period
of 1-4-2013 to 31-3-2014.
Ex-P20- 65(b) certificate.
Ex-P21 and 22 Original invoice No.527 and 52B (2)
WITNESSES EXAMINED ON BEHALF OF THE ACCUSED:
DW-1 Mrs.Yamunaramesh
DOCUMENTS MARKED ON BEHALF OF THE ACCUSED:
NIL
(R.MAHESHA)
XXIV ADDL. SMALL CAUSES JUDGE
& A.C.M.M. BENGALURU.