Bangalore District Court
Jk Cement Works vs M/S.Vaibhav Traders on 20 June, 2018
IN THE COURT OF THE XXVII ADDL., CHIEF
METROPOLITAN MAGISTRATE, BANGALORE.
Present: Sri.N.Muniraja. B.A., L.L.B.,
Dated: This the 20th Day of June 2018.
C.C.No.27110/2016
Complainant JK Cement Works,
Muddapur
(A Unit of JK Cement Ltd.)
Having Regional Marketing
Office at No.407, 3rd Floor,
Prestige Atrium,
Central Street,
Civil Station,
Shivaji Nagar,
Bangalore-560 001.
Rep by its authorised Officer
Mr.Sanjay Naik,
S/o.Dattu,
Aged about 41 years.
(Reptd by Sri.CK,Adv)
Accused 1. M/s.Vaibhav Traders,
Office at No.25,
Rakeshwari Nagar,
Tent Road,
Laggeri,
Bangalore-560058.
Rep by its authorised
Signatory and Proprietor
Sri.G.Kumar,
2. Mr. G.Kumar,
R/at.No.124, 1st main,
8th Cross,
3rd Phase,
Manjunatha Nagar,
Bangalore-560 010.
(Reptd by Sri.HDS.,Adv)
Offence U/s.138 of Negotiable
Instruments Act.
2 C.C.No.27110/2016
Plea of the accused Pleaded not guilty
Final Order Convicted
Judgement Date 20.06.2018
*****
JUDGEMENT
The complainant company filed this complaint against the accused for the offence punishable U/s.138 of the Negotiable Instruments Act.
2. Brief facts of the complainant case are as follows:
The complainant company is incorporated under the companies act and engaged in producing and selling of Grey cement, white cement and wall patti. The accused No.2 is the proprietor and authorised signatory of the accused No.1 and he is looking after day to day business of the accused No.1. The complainant company used to supply Grey cement as per the demands and requests made by the accused and in turn, the accused used to remit the payment periodically. On reconciliation of account it was transpired that an amount of 3 C.C.No.27110/2016 Rs.5,03,283/-is lying as outstanding to be paid by the accused to the complainant company. In discharge of the said liability, the accused No.2 has issued cheque bg.No.661184 dated 4.10.2016 for Rs.5,03,283/- drawn on State Bank of Hyderabad, Basaveshwaranagar Branch, Bangalore in favour of the complainant. On presentation of the said cheques for realization by the complainant through corporation bank, CAPS Branch, Bangalore, the same were dishonoured on 6.10.2016 as funds insufficient. The complainant company contacted the accused and informed about the dishonour of the cheque and demanded to pay the due amount and the accused refused for the same. Thereafter, the complainant company issued legal notice to the accused on 25.10.2016 through speed post to the residential and office address of the accused. The notice issued to the office address of the accused No.1 served on 29.10.2016 and the notice issued to the residential address of the accused No.2 not 4 C.C.No.27110/2016 served. Even after service of notice to the accused No.1, the accused failed to pay the cheque amount. Hence this complaint.
3. The accused No.1 is the Proprietor ship concern and the accused No.2 is its proprietor. The accused appeared through their advocate and enlarged on bail. Substance of accusation read over to the accused and he pleads that he is not dues that much of amount.
4. On behalf of the complainant company its authorised signatory examined as PW1 and got marked 11 documents as per Ex.P.1 to P.11 and closed its side evidence. On closure of the complainant side evidence, statement of the accused recorded as required u/s 313 of Cr.P.C. The accused has denied the incriminating circumstances which appears against him in the complainant side evidence. The accused has not led any defence evidence nor got marked any documents. 5 C.C.No.27110/2016
5. Heard the learned counsel for the complainant. The learned counsel for the accused has filed written arguments and I perused the records.
6. The points that would arise for any consideration are as follows:
i) Whether the complainant proves that the accused issued Ex.P.1 cheque towards discharge of legally enforceable debt or liability and the said cheques dishonoured for want of sufficient funds in the account of the accused?
ii) Whether the complainant proves that after dishonour of the cheque served notice to the accused in compliance of sec.138(b) of the N.I. Act?
iii) What order?
7. My answer to the above points are as follows:
Point No.1 - Affirmative.
Point No.2 - Affirmative.
Point No.3 - As per final order for the following.
REASONS
8. Point No.1: It is the case of the complainant that, in respect of the Grey cement supplied to the 6 C.C.No.27110/2016 accused he was due of Rs.5,03,283/- and towards discharge of the said amount the accused has issued Ex.P.1 cheque and the said cheque dishonoured for want of sufficient funds in the account of the accused. PW1 is the authorised representative of the complainant company and in his chief examination affidavit has reiterated the contents of the complaint averments.
9. As borne out from the cross-examination of PW1, defence of the accused is that, the complainant company has not given any authorization to PW1 to give evidence in this case and the complainant has not produced any documents to show that as on 4.10.2016 the accused was due of Rs.5,03,283/-. The accused has not issued Ex.P.1 cheque towards discharge of balance amount of Rs.5,03,283/- and by using old cheque false case is filed against the accused. After dishonour of the cheque notice was not issued to the accused and postal 7 C.C.No.27110/2016 acknowledgement is not produced to show the service of notice to the accused.
10. In the entire cross-examination of Pw1 on behalf of the accused not disputes the fact that, Ex.P.1 cheque drawn from the account of the accused and his signature thereon. Issuance of Ex.P.1 cheque to the complainant is also not in much dispute. Since the signature of the accused on Ex.P.1 cheque and issuance of cheque in favour of the complainant is not in dispute presumption U/s.139 of the N.I Act raises infavour of the complainant that the accused issued the cheque to the complainant towards discharge of any debt or liability. The burden shifts on the accused to rebut the presumption available infavour of the complainant. With this background, let me appreciate the evidence on record whether the accused is able to rebut the presumption U/s.139 of N.I Act available in favour of the complainant.
8 C.C.No.27110/2016
11. In the cross-examination of PW1 on behalf of the accused contended that, the complainant company has not issued any authorization letter to PW1 to give evidence in this case. Of course, PW1 has specifically denied the suggestions made on behalf of the accused in this regard. On behalf of the complainant produced certified copy of Extract of Minutes of Meeting of the Board of Directors of the complainant company held on 24.11.2014 as per Ex.P.9. The said Ex.P.9 document goes to show that PW1 and two others have been authorised to represent the complainant company. Therefore, the contention of the accused that, the complainant company has not given any authorization to PW1 to give evidence in this case cannot be accepted.
12. In the entire cross-examination of PW1 on behalf of the accused not denied the purchase of Grey cement by the accused from the complainant company. On behalf of the complainant produced 9 C.C.No.27110/2016 Ex.P.10 statement of account and Ex.p.11 balance confirmation to show that the accused is due of Rs.5,02,382/-. Ex.P.10 statement of account clearly goes to show that the accused is due of Rs.5,02,382/- to the complainant company. As could be seen from Ex.P.11 that the accused has issued balance confirmation letter to the complainant company admitting liability of payment of Rs.5,02,382/-. On behalf of the accused not cross- examined the PW1 on Ex.P.10 & P.11 documents. Therefore, the there is no dispute about Ex.P.10 & Ex.P.11 Statement of Account and Balance confirmation letter. It is pertinent to note that the accused issued Ex.P.11 balance confirmation letter that too after issuance of Ex.P.4 notice by the complainant regarding dishonour of the cheque inquestion. As noticed above, on behalf of the accused not disputes the Ex.P.10 statement of account as well as Ex.P.11 balance confirmation letter. The said Ex.P.10 & P.11 documents clearly 10 C.C.No.27110/2016 goes to show that the accused is due of Rs.5,02,382/-.
13. The accused in the written arguments contended that, blank cheque was collected by the complainant company at the time of inception of oral agreement between the complainant and accused for supply of cement to the accused and the complainant filled up the cheque to suit their requirement. It is pertinent to note that, in the entire cross- examination of PW1 on behalf of the accused not put forth the specific defence that the complainant obtained blank cheque from the accused and there is no specific suggestion to the effect that the complainant filled the contents of Ex.P.1 cheque. Therefore, the above said arguments of the accused that, the complainant obtained blank cheque and filled its contents cannot be accepted.
14. The accused in the written arguments contended that, he is not due any amount to the 11 C.C.No.27110/2016 complainant and the accused has deposited Rs.2,00,000/- with the complainant as security deposit and the said amount not returned by the complainant to the accused. The accused has not placed any materials to show that he made security deposit of Rs.2 Lakhs with the complainant. However, PW1 in the cross-examination stated that the accused made security deposit of Rs.50,000/- with the complainant and the accused is entitled to get back the said security deposit amount.
15. As per Ex.P.10 & 11 statement of account and balance confirmation letter, the accused is due of Rs.5,02,382/- to the complainant. The accused neither in the cross-examination of PW1 nor at the time of recording of statement U/s.313 of Cr.P.C. has not explained how the Ex.P.1 cheque came to the possession of the complainant. Therefore, presumption can be drawn that, the accused has issued Ex.P.1 cheque to the complainant towards 12 C.C.No.27110/2016 discharge of the outstanding due amount. In the cross-examination of Pw1 on behalf of the accused nothing worth is elicited and the accused has not ;ed defence evidence to rebut the presumption U/s.139 of N.I Act. raises infavour of the complainant.
16. As per Ex.P.2 & 3 bank endorsements the cheque in question dishonoured for the reason funds insufficient in the account of the accused. In the cross-examination of PW1 the accused not put forth defence to that effect that there were sufficient funds in his account to meet out Ex.P.1 cheque amount when it was presented for encashment. No such defence is forth coming from the accused side. Moreover, as per Sec.146 of N.I Act there is presumption with respect to the bank endorsement.
17. The complainant by adducing oral evidence and Ex.P.10 & 11 documentary evidence proved that accused, the accused has issued the Ex.P.1 cheque to the complainant towards discharge of outstanding 13 C.C.No.27110/2016 due amount and the same was dishonoured due to insufficiency of funds in the account of the accused. In view of my above discussion I answer point No.1 in the Affirmative.
18. Point No.2: It is the case of the complainant that, after dishonour of the cheque issued notice to the accused on 25.10.2016 through speed post to the residential address and office address of the accused. The notice issued to the accused No.1 to the office address duly served on 29.10.2016 and notice of the accused No.2 issued to residential address unserved. In the cross-examination of PW1 on behalf of the accused contended that after dishonour of the cheque not sent notice to the accused through registered post and the complainant has not produced postal acknowledgement to show the service of notice to accused. The complainant to prove the factum of issuance of notice and service of the same to the accused No.1 produced Ex.P.4 office 14 C.C.No.27110/2016 copy of the notice dated 25.10.2016, Ex.P.4(a) to (d) postal receipts, Ex.P.5 & 6 postal track consignments. Ex.P.5 & 6 postal track consignment clearly goes to show the delivery notice of to accused No.1. As per Ex.P.7 & 8 postal covers the notice issued to the accused No.2 returned as Door locked and Not claimed. It is pertinent to note that it is not in dispute that the accused No. 2 is the proprietor of the accused No.1 service of notice to the accused No.1 as good as service to the accused No.2 because he is the proprietor of the accused No.1. Moreover, as per the dictum of the Hon'ble Supreme court of India, the notice issued to through registered post to the correct address of the sendee returned as not claimed or door locked, deemed to have been served to the sendee. Here is a case the accused in the cross-examination of PW1 not disputes the correctness of the accused No.2 mentioned on Ex.P7 and P.8. Therefore the notice issued to the accused No.2 deemed to have been served to the accused. 15 C.C.No.27110/2016 Therefore the contention of the accused that after dishonour of the cheque the complainant not sent notice to the accused through the registered post and the complainant has not produced the postal acknowledgments to show the service of notice to the accused, cannot be accepted. The materials placed by the complainant clearly goes to show that after dishonour of the cheque, the complainant issued notice to the accused and the said notice served on the accused. Therefore, the complainant has complied the mandatory requirement of Sec.138(b) of the N.I. Act. Hence I answer point No.2 in the affirmative.
19. Point No.3 :- In view of my findings on Points No.1 & 2 the complainant proved that the accused issued Ex.P.1 cheque towards discharge of outstanding due and the said cheque dishonoured for want of sufficient funds in the account of the accused and the complainant complied the mandatory requirement of Sec. 138(b) of N.I ACt by 16 C.C.No.27110/2016 issuing demand notice. Therefore, the accused is liable for punishment for the offence punishable U/s.138 of the N.I Act. In cheque bounce cases apart from punishment to the accused, compensation can also be awarded to the complainant with respect to the dishonoured cheques. Ex.P.1 cheque is dated 1.10.2016 and the amount covered there in is of Rs.5,02,382/-. The accused issued the cheque to the complainant in respect of commercial transaction. If the cheque honoured when it was presented for encashment, the complainant would have utilized the said amount for its business purpose and to substantial profit and would not have approached this court. Therefore, the act of the accused caused loss to the complainant dragged the complainant to the court. The complainant has spent more than one and half years for redressal. It is under these circumstances the complainant has to be suitably compensated in the matter. In the result, I proceed to pass the following.....
17 C.C.No.27110/2016
ORDER
The complaint filed by the
complainant company against the
accused is allowed.
Consequently, acting U/s.255(2) of Cr.P.C, the accused Convicted for the offence punishable U/s.138 of the N.I. Act and sentenced to pay fine of Rs.6,00,000/-. In default of payment of the said fine amount the accused No.2 shall undergo Simple Imprisonment for a period of 6 months.
Out of the above said fine amount ordered to pay Rs.5,90,000/- to the complainant as compensation and the remaining amount of Rs.10,000/- shall go to the state. The security amount of Rs.50,000/- deposited by the accused with the complainant is liable to be deducted from the compensation amount payable by the accused to the complainant.
(Dictated to the typist directly on the computer and after corrected by me pronounced in open court by me on this 20th day of June, 2018) (N.Muniraja) XXVII A.C.M.M., Bangalore.
18 C.C.No.27110/2016ANNEXURE Witnesses examined on behalf of the complainant:
PW1 : Sanjay Naik Documents marked on behalf of the complainant:
Ex.P.1 : Cheque Ex.P.1(a) : Signature of the accused. Ex.P.2 & 3 : Bank endorsements Ex.P.4 : Office copy of the legal notice
Ex.P.4(a) to 4(d): Postal receipts Ex.P.5 & 6 : Postal Track consignment Ex.P.7 & 8 : Returned postal cover Ex.P.7(a) & 8(a) : Notices in Ex.P.7 & 8 postal cover Ex.P.9 : Cc. of Extract of Minutes of ` Meeting Ex.P.10 : Statement of account Ex.P.11 : Balance Confirmation letter. Witnesses examined on behalf of the accused:
Nil Documents marked on behalf of the accused:
Nil XXVII A.C.M.M Bangalore.19 C.C.No.27110/2016
Dt:20.06.2018 Complnt:Sri.CK Adv., Accused: Sri.HDS Adv., For Judgement.
(Order typed vide separate sheet) ORDER The complaint filed by the complainant company against the accused is allowed.
Consequently, acting U/s.255(2) of Cr.P.C, the accused Convicted for the offence punishable U/s.138 of the N.I. Act and sentenced to pay fine of Rs.6,00,000/-. In default of payment of the said fine amount the accused No.2 shall undergo Simple Imprisonment for a period of 6 months.
Out of the above said fine amount ordered to pay Rs.5,90,000/- to the complainant as compensation and the remaining amount of Rs.10,000/- shall go to the state. The security amount of Rs.50,000/- deposited by the accused with the complainant is liable to be deducted from the compensation amount payable by the accused to the complainant.
(N.Muniraja) XXVII A.C.M.M., Bangalore 20 C.C.No.27110/2016