Bangalore District CourtAloukik Corporation vs S & S Ventures on 4 January, 2022IN THE COURT OF XXXVIII ADDL.CHIEF METROPPOLITAN\n            MAGISTRATE, BENGALULRU\n          Present : Sri. P. Shivaraj,\n                                 B.Com. LL.B.\n                    XXXVIII A.C.M.M Bengaluru\n     Dated this the 04th day of January ­ 2022\n                  C.C.NO:12198/2020\nCOMPLAINANT:              :    Aloukik Corporation\n                               Registered by SPA holder\n                               Sri. Ketan B. Maniar\n                               Having Office at : 1/1, 5th Main,\n                               Chamarajpet,\n                               Bengaluru­560018.\n                               (Rep. By. Sri. G.S Prasanna\n                               Kumar and others Advocates)\n                              Vs/­\nAccused                   :    1.S & S Ventures\n                               A partnership firm Having its\n                               Office at Plot: 15B/6, Part­2,\n                               Jigani Indl. Area, Jigani­560106,\n                               Anekal Tq, Bengaluru District\n                               Rep.by its Partner.\n                               2. Mallanna Patil ,\n                               Partner, S&S Ventures,\n                               Plot, 15B/6, Part­2,\n                               Jigani Indl.Area, Jigani­560106,\n                               Anekal Taluk,\n                               Bengaluru District.\n                               3. Sridhar Kallur,\n                               Partner, S&S Ventures,\n                               Plot, 15B/6, Part­2,\n                               Jigani Indl.Area, Jigani­560106,\n                               Anekal Taluk,\n                               Bengaluru District.\n\n                               (Rep.   By  Sri.      A1,2  &3\n                               Shridhara Murthy      and other\n                               Advocates)\n                                  2                   C.C.No.12198/2020\n\n\n\nOffence                    :   U/Sec.138of N.I. Act of 1881.\nPlea of accused            :   Pleaded not guilty.\nFinal Order                :   Accused No.2 and 3 are\n                               convicted.\nDate of Judgment           :   04.01.2022.\n\n\n\n                                          (P. SHIVARAJ)\n                                         XXXVIII A.C.M.M.\n                                            Bengaluru.\n\n                  ­: J U D G E M E N T :­\n\n        The Complainant is a proprietor ship concern, the SPA\nholder of the proprietrix has filed the private complaint U/s\n200 ofCr.P.C. against the accused persons alleging that, they\nhave committed the offence punishable undersection 138of\nNegotiable Instrument Act, 1881. (For short N.I.Act,1881)\n 2. Complainant case is as follows:­\n        The complainant is proprietor ship concern and it is\ndealing with the      business of manufacture of Armour\npolythene sheets. Accuses no.1 is the partnership firm, and\nAccused no.2 and 3 are the       partners of the accused no.1\nfirm. Complainant has supplied and delivered materials of\nworth     Rs.6,43,151.35/­ under     various   invoices   to    the\naccused persons as per their purchase order. Accused\npersons have failed to pay the aforesaid invoices amount.\nAccordingly in order to repay the aforesaid said amount,\naccused persons have issued the following cheques, in favour\n                                    3                      C.C.No.12198/2020\n\n\n\nof the complainant, which are drawn on State Bank of India,\nJigani Brach,Bengaluru.\n\n                  Date      Cheque no.       Amount\n             14.02.2020      951351          1,66,089/-\n             14.02.2020      951352          2,24,901/-\n             14.02.2020      951353          2,52,160/-\n     3. As per the instructions of the accused persons,\ncomplainant presented the aforesaid cheques for encashment\nthrough his banker. The aforesaid cheques was returned\ndishonoured/unpaid,         with       an    endorsement       "Funds\nInsufficient" to that effect, complainant received the cheques\nreturn memo's from his banker on 18.02.2020 Complainant\nfirm informed the aforesaid fact to the accused persons and\nhe has issued legal notice to the accused persons on\n11.03.2020 with a request and demand to repay the cheques\namount with in fifteen days. The said notice was duly served\non them on 12.03.2020. Accused persons have not chosen to\ngive reply nor they paid the cheques amount. Complainant\nalleged   that,   accused    persons        have   intentionally   not\nmaintained the sufficient amount in their bank account to\nhonor the cheques. In as much, accused persons have\ncommitted the offence        punishable undersection 138of\nN.I.Act. On the aforesaid allegations, the complainant firm\napproached this court and prays this court to punish the\naccused persons and to award the compensation on them.\n                               4                 C.C.No.12198/2020\n\n\n\n      4. After registering the case, cognizance taken of the\noffence punishable U/s 138 N.I.Act and sworn statement of\nthe SPA holder of the complainant is recorded. On finding\nprima­facie case process was issued to the accused persons.\n     5. After service of the summons to the accused\npersons, A­2 and 3 have appeared before this court through\ntheir counsel, and they got released on bail. Papers of the\nprosecution were supplied to them. The substance of the\naccusation is readout to them, in the language known to\nthem, they pleaded not guilty and submit that, they are\nhaving defence to make.\n     6. In order to prove the guilty of the accused persons,\nthe SPA holder of the complainant, examined herself as\nPW­1, produce and marked 21 documents which are at\nEx.P1 to 21 are got marked and Ex.P22 to 25 are marked by\nway of confrontation.\n     7.   Statement of A2 and 03 U/s 313 ofCr.P.C. is\nrecorded. They have denied the same and submit that, they\nwill lead the evidence. Accused No.02 examined himself as\nDW­1 produce and marked 01 document.\n     8. Both the parties are permitted to file their written\narguments on merits, counsel appearing for the complainant\nfiled the written arguments. I have heard the oral arguments\nfrom the counsel appearing fro accused persons. I have\nperused the written arguments along with material available\non record.\n                                     5                    C.C.No.12198/2020\n\n\n\n      Complainant counsel has relied on\na) Bir Singh Vs. Mukesh Kumar - (2019) 4 SCC 197\nb) K. N. Beena Vs. Munikyappa and Another - (2001) 8 SCC\n458\n      9.    The   following    points   that     arise     for   my\ndetermination:­\n                        ­:P O I N T S:­\n      1.     Whether the complainant proves beyond\n             reasonable doubt that, the accused\n             no.02 and 03 have committed the\n             offence punishable U/s 138 of theN.I\n             Act, as alleged in the Complaint?\n\n      2.     What Order?\n\n      10.      After carefully going through the materials\navailable on record and taking into consideration of facts\nand circumstances of the case, my finding to the above\npoints are as follows:\n      Point No.1: In the Affirmative.\n      Point No.2:As per final order, for the following:\n                         REASONS\n\n      11. Point No.1: PW1 being the SPA holder of the\ncomplainant, he reiterated the complaint averments in his\nsworn      statement   affidavit,   which   is   treated    as   his\nexamination­in­chief.\n      Ex.P.1 is the special power of attorney executed by the\nproprietrix of the (complainant) proprietary concern, in\nfavour of PW1. The recitals reveals that, PW1 is authorized\n                                6                 C.C.No.12198/2020\n\n\n\nto depose before this court on behalf of the complainant\nproprietor ship concern .\n     The accused has not disputed the issuance of cheques\nto the complainant and he has admitted his signatures on\nthe said cheques. In as much the initial statutory\npresumption attached to the cheques as perSec.118(a)and139of N.I. Act has to be raised in favour of the\ncomplainant.\n     12. Accused persons cross examined the PW1 to rebut\nthe statutory presumption attached to the cheques. In the\ncross­examination of PW1, he categorically deposed that, he\nis having personal knowledge of the transaction transacted\nwith the accused persons and is having personal knowledge\nof the case. He denied the suggestion that, notice as per\nEx.P.17 is not served to the accused persons. He admitted\nthat, he has not stated the address of the accused persons\nas stated by them selves in their partnership deed.\n     13 Accused no.2 contended that, they have not placed\nany purchase order with the complainant and complainant\nhas fabricated the payment vouchers and invoices. They\nfurther contended that, they have stopped their business\nwith complainant in the year 2018, since they are not\nsatisfied with their service. He further contended that, the\ncheques in question were issued to the complainant long\nback as a security for their earlier transaction. The\n                                 7                  C.C.No.12198/2020\n\n\n\ncomplainant has retained the said cheques and he has\ncome up with this false complaint.\n      14. In the cross­examination of DW1 he categorically\nadmitted his signature on the cheques in question which\nare at Ex.P­5, Ex.P­10 and Ex.P­15. He admitted that,\npayment voucher as per Ex.P­4, 9 and 14 are raised in the\nname of complainant. He admitted that, invoices/bills\nwhich are at Ex.P­2, Ex.P­3, Ex.P­7, Ex.P­8, Ex.P­12 and\nEx.P­13 are raised in the name of their firm name. He\ndeposed that, they have not received the items stated in the\ninvoices and he denied the inward seal affixed on the\ninvoices but he has not chosen to tender his/their firm's\ninward seal nor explained the valid reason. He admitted\nthat the earlier cheque given to complainant from (his firm)\nwas honored and encashed and further perverse to his\ndefence, he admitted that complainant was supplying good\nquality of materials to him. He contended that, he is not\nliability to pay any amount to the complainant.\n      15. On care full perusal of the oral and documentary\nevidence available on record it is evident that, the address\nof the accused persons as stated in the cause title of the\ncomplaint, corroborates with the address of the accused\npersons as stated in the payment vouchers and invoices. It\nis also true that, summons of the accused persons are\nissued to their addresses as stated in the cause title and it\nwas   served   on   them   on   the   aforesaid   address   on\n                                    8                     C.C.No.12198/2020\n\n\n\n10.11.2020.     The    aforesaid       facts   establishes       that,\ncomplainant    has    issued    the     statutory   notice    underSec.138(b)of the N.I. Act to the correct address of the\naccused persons. DW1 has admitted that he/they never\ncommunicated nor they have made any correspondence\nwith the complainant from their new address. It is not the\ndefence of the accused persons that the complainant has\ngiven their in correct address. Accused persons have given\ntheir firm address as stated in the complaint cause title to\nthe GST authorities and they have not disputed the same\nsuch being the case accused persons are estopped from\ndenying their address as given by the complainant in the\ncause title of the complaint.\n      16. It is also true and obvious that, it is impossible for\nthe complainant to know the address of the accused\npersons as stated by themselves in their partnership deed.\nIn   the   cross­examination    of     PW1,    accused     has    not\nsuggested their correct address nor they have denied\ncorrectness of the address as stated by the complainant in\nthe cause title of the complaint and also in the payment\nvoucher and invoices. Such being the case, the aforesaid\nmaterial facts establishes that, complainant has issued the\nmandatory notice to the correct address of the accused\npersons.\n      17. In the cross­examination of PW1, there is not even\na suggestion regarding the contention of fabrication of\n                                  9                    C.C.No.12198/2020\n\n\n\ninvoices and payment vouchers as contended by the\naccused     persons.   The   aforesaid   defence   has    to   be\nspecifically pleaded and proved by placing the probable\nevidence and the accused persons have failed to comply the\nsame. Further the nature and manner of creation of\ninvoices and vouchers is neither suggested to PW1 nor it is\nproved by placing probable evidence and it can not be\naccepted. Further more there is not even an iota of\nsuggestion to the PW1 regarding the contention that,\naccused persons have issued the cheques in question to the\ncomplainant as a security for their earlier transactions. If\nat all if the aforesaid contention is true, the accused\npersons could have effortlessly suggest the details to the\nsaid cheques to PW1 and they could have initiate the lawful\naction    against   the   complainant     to   take    back    or\nreceive/recover the cheques given to the complainant.\nAdmittedly, till this day as admitted by DW1, no effort is\nmade by the accused persons for the same. In as much the\naforesaid contention cannot be accepted as it is not\nprobable.\n         18. Furthermore in the cross­examination of PW1\nnothing is elicited to disbelieve or disprove the invoices and\npayment vouchers. On careful perusal of invoices and\npayment vouchers it is evident that, inward seal of accused\nNo.1 firm is affixed on the invoices and accused persons\nhave raised the payment voucher in favour/in the name of\n                                     10                        C.C.No.12198/2020\n\n\n\nthe complainant and the said fact is not disputed by them.\nFurthermore it can be seen from the entries in payment\nvouchers      that,        the     accused             persons          have\nmentioned/revealed the cheque number, through which\nthey are intending to make the payment of invoices amount\nto the complainant as stated in the payment voucher itself.\nNo doubt the details of payment vouchers corroborates with\ninvoices and the said documents are in conformity with the\namount     stated    in   the    cheques     in        question    and    it\ncorroborates with oral testimony of PW1 and complaint\naverments. The aforesaid facts fortifies the complainant\nversion and falsifies and crumbles the feeble contention of\nthe accused persons.\n     19. It is also true that, nothing is elicited from the\nmouth of PW1 to disbelieve the genuineness of the aforesaid\ndocuments. Considering the contention/defence of accused\npersons    and      the   oral   testimony        of    PW1       and    the\ndocumentary evidence available on record, I am of the\nopinion that the initial presumptions attached to the\ncheques in question cannot be said to have been rebutted\nby the accused persons. Added to it no probative value can\nbe attached to the unsubstantiated contention/defence of\nthe accused persons. There is no material on record to\naccept the unsubstantiated contention of the accused\npersons. No doubt accused persons have fail to show the\nreasonable possibility of non existence of alleged debt and\n                                         11                        C.C.No.12198/2020\n\n\n\nthe presumed facts. The materials put forth by the accused\npersons are not sufficient to revert back the burden on the\ncomplainant to prove its case beyond reasonable doubt.\n      Coming to the arguments, learned counsel appearing\nfor the accused argued that PW1 has no authority under\nSPA to depose before the court.\n      20.    PW1,   being    the        agent     of    the    complainant\nproprietary concern, he is appointed and identified by the\npropriterix and the SPA is executed before the competent\nauthority,     No    doubt         it        is   the         administrative\ndecision/arrangement made by the complainant and PW1\nhas diligently and bonafidely acted up on it and court has\naccepted it. The principal who executed SPA, can question\nthe act of his attorney and not the others. PW1 has pleaded\nand   repeatedly    deposed    that          he   is    having     personal\nknowledge about the transaction transacted with the\naccused persons and he knew the facts of the case, Such\nbeing the case, aforesaid argument can't be accepted and\nthe oral testimony of PW1 can't be ignored and brush aside\nin view of the principles laid down by the Supreme Court of\nIndia in A.C.N arayanan V/s State of Maharashtra.\n      21. Further Counsel argued that the validity period of\nthe cheque in question is already elapsed and he relied on\nthe notification of the RBI to that effect I..e, RBI/2011­\n12/251, dated 04.11.2011 and counsel further argued\nthat, complainant has filed this case by filling up the\n                                    12                   C.C.No.12198/2020\n\n\n\ncheques with wrong details. It is true that, the validity of the\ncheque has to be computed from the date of the cheque\n(Date mentioned on the cheque) and in view ofSec.20of the\nN.I. Act the aforesaid argument cannot be accepted and\nlearned counsel appearing for the complainant has relied on\nBir Singh Vs. Mukesh Kumar wherein Hon'ble Supreme\nCourt of India has categorically dealt with aforesaid fact and\nit is applicable to the present case.\n\n      22. Furthermore, counsel argued that, complainant\nhas misused the earlier cheques given as security for their\nearlier transaction. Apparently, accused persons have failed\nto   establish   the   aforesaid   defence   by   put     forthing\npreponderance of probabilities. Added to it in I.C.D.S.\nLimited Vs. Beena Shabeer, the Hon'ble Supreme Court of\nIndia has interpreted the phrase "Any cheque" inSec.138of the N.I. Act . In view of the principles laid down in the\naforesaid authority, the aforesaid arguments cannot be\naccepted.\n\n      23. Counsel further argued that, complainant has not\narrayed the proprietorship concern as a party to the\nproceedings. It is true that, proprietor and proprietorship\nconcern are one and the same and they stood on the same\nfooting as of a sole trader and sole trading concern. The\naforesaid fact is categorically discussed by the Hon'ble\nSupreme Court of India in M/s Shankar Finance and\n                                13                C.C.No.12198/2020\n\n\n\nState of Andra Pradesh and others and counsel appearing\nfro the complainant has argued in accordance with the\nprinciples laid down in the aforesaid case and it has to be\naccepted. Further considering the principles laid down in\nthe aforesaid authorities I do not find any force in the\narguments canvassed by the learned counsel appearing for\naccused persons on the aforesaid discussed facts. Hence\nwith the aforesaid discussion based on the materials\navailable on   record and by considering the facts, and\nattending circumstance of the case, I am answering this\npoint in the affirmative.\n\n     24. Point No.2: In view of the reasons and discussion\nmade above, I proceed to pass the following:­\n                         ORDERExercising the power conferred U/sec\n    255(2) of Cr.p.c. accused no.2 and 3 are\n    convicted for the offence punishable\n    U/s.138 of theNegotiable Instrument\n    Act,1881.Accused no.2 and 3 are together sentenced\n    to pay a fine amount of Rs.7,23,330/­to the\n    complainant proprietary concern in default\n    they have to under go simple imprisonment\n    independently for one year.Out of the said fine amount, an amount of\n    Rs.7,20,330/­ is ordered to be paid to the\n    complainant as compensation. The remaining\n    amount of Rs.3,000/­ shall be confiscated to\n    the state towards litigation expenses.14                                 C.C.No.12198/2020The bail bond and surety bond of accused\n        no.2 and 3 shall continue for next 6 months as\n        per Sec.437­A of Cr.P.C.Office is directed to supply the free copy\n        of     this judgment to the accused persons\n        forthwith.(Dictated to the stenographer and transcribed and computerized by her, corrected by me and then pronounced\nby me in the open court on 4th day of January 2022.)\n\n\n\n\n                                                                     (P. SHIVARAJ)\n                                                                    XXXVIII A.C.M.M.\n                                                                       Bengaluru.ANNEXURES:1) List of Witness Examined on be half of Complainant\nfirm:PW.1                                   :      Ketan B Maniar S/o B.C Maniar2) List of exhibits marked on be half of Complainant firm:Ex.P.1                                 :         Original Special Power of Attorney.\nEx.P.2 to 3                            :         02 Original Tax invoice.\nEx.P.4,9,14                            :         Payment Vouchers.\nEx.P.5&(a)                             :         Original cheque and signature.(Cheque bearing no. 951351 dt: 14.02.2020)\nEx.P.06,11,16                          :         Cheque return memo's.\nEx.P.07,8                              :         02 Invoices bills.Ex.P.10&(a)                            :         Original cheque and signature\n                                                 (Cheque bearing no. 951352 dt: 14.02.2020)\nEx.P.12,13                             :         02 Invoices Bills given by complainant.\nEx.P.15&(a)                            :         Original cheque and signature\n                                                 (Cheque bearing no. 951353 dt: 14.02.2020)\nEx.P.17                                :         Office copy of Legal notice sent to the\n                                                 accused.Ex.P.18                                :         06 Postal receipts.15                C.C.No.12198/2020Ex.P.19            :     6 Postal Track consignments.\nEx.P.20 &21        :     Form GST REG­06.Ex.P.22 to 25      :     Intimation of Change in Address.(Marked through confrontation.)3) List of exhibits marked on be half of the Accused No.02:­\n\nDW.1               :   Mallannapatil.4) List of Documents Marked on be half of the Accused no.02 :­\n\nEx.D.1             :   Partnership Deed.(P. SHIVARAJ)\n                                  XXXVIII A.C.M.M.\n                                      Bengaluru.