Bangalore District Court
E.S.I Croporation vs Shri. Janardhan on 26 December, 2024
C.C.NO.2328/2023
0
KABC030035132023
Presented on : 21-01-2023
Registered on : 24-01-2023
Decided on : 26-12-2024
Duration : 1 years, 11 months, 5 days
IN THE COURT OF THE XXVIII ADDL.CHIEF JUDICIAL
MAGISTRATE, BENGALURU CITY
Present:
Soubhagya.B.Bhusher,
B.A.,LL.B.,LL.M
XXVIII A.C.J.M, Bangalore City.
DATED; THIS THE 26th DAY OF DECEMBER-2024
C.C.NO.2328/2023
Complainant: E.S.I Corporation,
No.10, Binnyfields, Binnypet,
Bangalore-560023.
R/by its Ramesh.M
Social Security Officer,
E.S.I.Corporation,
Bangalore-560023.
As per the order dated: 20.03.2024
Complainant company
R/by its Social Security Officer,
Sri.Ningappa.Y.Morab.
(By Smt.Suma.L.N,.Adv.,)
V/s
Accused: Shri.Janardhan, Principal Employer,
M/s.Childrens Education Society,
(Max Mullar Public School),
No.158, 8th Main, BEML Nagar,
Basaveshwaranagar,
C.C.NO.2328/2023
1
Bengaluru-560079.
R/at No.3/91, 12th Main, 2nd Block
Rajajinagar, Bengaluru-560010.
(By M.T.Nanaiah Associates Adv.,)
:JUDGMENT:
This case arises out of the private complaint filed
by the complainant against the accused under section
200 of Cr.P.C., for an offence punishable under section
138 of Negotiable Instrument Act.
2. The case of the complainant’s in brief is as
under:
It is the case of the complainant is that the
accused is a principal employer of M/s. Children’s
Education Society, which is an establishment, covered
under the provisions of Employees State Insurance Act
under ESIC code No.53-00-029455-000-1303 (Central
Act, XXXIV of 1948). The accused failed to pay the
arrears of contribution, payable by him under section
40 of E.S.I Act, and its regulations made there under, in
all totaling to Rs.13,49,874/- for the period from 03/18
to 05/2019. The accused has issued the cheque
No.300083 dated: 10.10.2022 for Rs.4,00,000/- drawn
on Axis Bank Ltd., Basaveshwara Nagar branch,
Bangalore towards part payment of his liabilities. The
complainant has presented the said cheque on
31.10.2022 for encashment through its banker the
State Bank of India, New Tharagupet Branch. But the
C.C.NO.2328/2023
2
said cheque was dishonor on 24.11.2022 as “Account
Blocked Situation covered in 2125”. Thereafter the
complainant got issued notices to the accused on
02.12.2022 through its counsel calling upon him to pay
the cheque amount. The said notice was duly served to
the accused on 07.12.2022. Inspite of service of the
legal notice, the accused neither reply the notice nor
paid the cheque amount to the complainant. As such,
the accused have committed an offence punishable
under section 138 of N.I.Act. Hence, the present
complaint came to be filed before this court on
20.01.2023.
3. After the complaint was filed, the cognizance of
the offence cited therein was taken. The complaint is
filed by public servant acting in discharge of his official
duties filing of sworn statement is dispensed with.
Since there were sufficient materials to proceed against
the accused, an order was passed on 20.01.2023 to
register the case in Register No.III and it was registered
as a criminal case.
4. Thereafter, summons was issued to the
accused and he has appeared before the court through
Advocate and secured bail. He was furnished its
necessary papers as complied under section 208 of
Cr.P.C. Thereafter, the plea of the accused was
recorded by the court. He has pleaded not guilty and
make a defence.
C.C.NO.2328/2023
3
5. The complainant in support of its case, have
examined its Social Security Officer as PW.1 and got
marked 07(a) documents at Ex.P.1 to 7(a) and closed
its side. The learned counsel for the accused has
submitted no cross of PW.1. Hence, the cross
examination of PW.1 is taken as nil.
6. After closer of the evidence of the complainant,
the statement under section 313 of Cr.P.C, was
recorded. He has denied the incriminating evidence
appearing against him. He has submitted no defence
evidence. Hence, the defence evidence taken as nil.
7. Heard the arguments on both the sides and
perused the material placed on record.
9. Upon hearing the argument and on perusal of
the material placed on record, the following points arise
for my consideration:
1.Whether the complainant proves the
existence of legally enforceable debt/liability.?
2. Whether the complainant further proves that
the accused had issued the cheque-Ex.P.1
towards the discharge of the said legally
enforceable debt/liability.?
3. Whether the complainant further proves that
the cheque-Ex.P.1 was dishonored for the
reasons Account Blocked Situation covered in
2125″ and thereafter the accused had failed to
repay the same within the statutory period,
inspite of receipt of legal notice.?
4. Whether the accused have thus committed
C.C.NO.2328/2023
4
an offence punishable under section 138 of
N.I.Act.?
5. What order?
10. My answers to the above points are as under:
Point No.1: In the Affirmative
Point No.2: In the Affirmative
Point No.3: In the Affirmative
Point No.4: In the Affirmative
Point No.5: As per final order, for the following:
:REASONS:
11. POINT NO.1 TO 4: These points are inter-
related to each other and finding given on any one
point will bearing on the other. Hence, in order to avoid
repetition of facts and evidence, I have taken these
points together for common discussion. The case of the
complainant is that he was acquainted with the
accused. Further the accused is a principal employer of
M/s Children’s Education Society, which is an
establishment, covered under the provisions of
Employees State Insurance Act. The accused failed to
pay the arrears of contribution, damages due and
interest payable by him under section 40 of the E.S.I
Act, and its regulations made there under, in all totaling
to Rs.13,49,874/- for the period from 03/18 to 05/2019.
The accused has issued the cheque in question
towards part payment of his liabilities. The complainant
has presented the said cheque for encashment through
its banker. But the said cheque was dishonored as
C.C.NO.2328/2023
5
“Account Blocked Situation covered in 2125”.
Thereafter the complainant got issued notices to the
accused through its counsel calling upon him to pay the
cheque amount. Inspite of issuance of the legal notices,
the accused neither reply the notice nor paid the
cheque amount. As such, the accused have committed
an offence punishable under section 138 of N.I.Act.
Hence, the present complaint came to be filed before
this court.
12. In support of the case, the complainant’s have
examined its Social Security Officer as P.W.1 and 07(a)
documents were marked at Ex.P.1 to 7(a). In the chief
examination P.W.1 has repeated the contents taken by
the complainant in the complaint. Ex.P.1 is the cheque
in question issued by the accused in favour of the
complainant dated: 10.10.2022 for Rs.4,00,000/-.
Ex.P.1(a) is the signature of the accused. Ex.P.2 is the
bank memo dated: 01.11.2022 informing the dishonor
of the cheque as “Account Blocked Situation covered in
2125”. Ex.P.3 is the Proforma for processing
prosecution action. Ex.P.4 is the office copies of legal
notices dated: 30.11.2022. Ex.P.5 and 6 are the postal
acknowledgments. Ex.P.7 is the Complaint. Ex.P.7(a) is
the Amended complaint.
13. In order to attract the offence punishable
under section 138 of N.I.Act, the complainant is firstly
required to prove the existence of legally enforceable
C.C.NO.2328/2023
6
debt/liability, for which the cheque came to be issued.
The learned counsel for the complainant has submitted
that from the evidence placed on record, the fact that
the accused is a principal employer of M/s. Children’s
Education Society, which is an establishment, covered
under the provisions of Employees State Insurance Act
under ESIC code No.53-00-029455-000-1303 (Central
Act, XXXIV of 1948). The accused failed to pay the
arrears of contribution, payable by him under section
40 of E.S.I Act, and its regulations made there under, in
all totaling to Rs.13,49,874/- for the period from 03/18
to 05/2019. Further submitted that towards part
payment of his liabilities the accused had issued the
cheque in question in favour of the complainant. She
further submitted that the accused has not denied
Ex.P.1 being his cheque drawn on his account. When
the signature is not disputed, the presumption under
section 139 N.I.Act is to be drawn in favour of the
complainant. The accused has failed to elicit anything
in the cross examination of P.W.1 to disbelieve the case
of the complainant. The defence have failed to rebut
the presumption under section 139 N.I.Act. She further
submitted that the accused has failed to produce any
believable evidence why he has given the said cheque
to the complainant and why he has not returned back
the said cheque is not clear. She further submitted that
under section 139 of N.I.Act, there is a presumption
that the cheque have been issued for discharge of
C.C.NO.2328/2023
7
legally enforceable debt/liability. In the present case,
the accused has not disputed Ex.P.1 being his cheque
drawn on his account. The said presumption is
available to the complainant. Moreover, under section
118 of N.I.Act, there is a presumption that the
Negotiable Instruments is drawn on the date, for the
amount and in favour of the person as shown in it. It is
for the accused to rebut the said presumption. But in
the case on hand no such evidence forthcoming.
Hence, the complainant have proved its case beyond
reasonable doubt.
14. In order to prove the guilt of the accused for
an offence punishable under section 138 of Negotiable
Instruments Act, 1881, the complainant is required to
prove the following ingredients beyond reasonable
doubt:
i. The accused had issued the cheque in favour
of the complainant.
ii. The said cheque has been issued in
discharge of a legally recoverable debt or
liability and is for consideration.
iii. The said cheque has been dishonored on
presentation.
iv. The accused has failed to make payment of
cheque amount within statutory period of
service of legal notice served to him by the
complainant.
15. In order to prove the case of the complainant,
the Social Security Officer of the complainant company
is examined himself as PW.1 in the form of affidavit and
C.C.NO.2328/2023
8
reiterated almost all the contents of the complaint and
got marked 07(a) documents at Ex.P.1 to 07(a). In the
chief examination PW.1 it is specifically deposed that in
order to part repayment of debt/due the accused had
issued the cheque in question in favour of the
complainant. Further deposed that when the
complainant was presented the said cheque for
encashment through their banker, same was
dishonored for the reasons funds insufficient.
Thereafter, the complainant have issued a legal notice
to the accused. The said notice was duly served to the
accused. Inspite of service of the notices, the accused
neither reply the notice nor paid the cheque amount.
Hence, the complainant have filed present complaint
before this court. The evidence given by P.W.1/the
complainant remained unchallenged.
16. During the course of proceedings, both the
counsels and parties have filed a joint memo. The
contents of the joint memo are as follows;
“1. The complainant has a filed above
complaint against the accused, for the offence
punishable under section 138 of Negotiable
Instruments Act, for the cheque amount of
Rs.4,00,000/-.
2. The accused has issued a cheque
No.300083 dated: 10.10.2022 drawn on Axis
Bank Ltd., Basaveshwara Nagar Branch,
C.C.NO.2328/2023
9
Bengaluru in favour of the complainant, in
respect of the liabilities of the complaint of M/s.
Children Education Society (Max Muller Public
School).
3. During the pendeny of the above matter,
at the intervention of the well-wishers the
complainant and the accused have settled the
matter amicably as per the terms and mentioned
herein below.
4. The accused has agreed to pay a sum
of Rs.4,05,000/- to the complainant, as full and
final settlement.
5. The matter is settled after discussions
between the complaint and the accused for a
sum of Rs.4,05,000/- in 4 installments, the
accused has agreed to pay by way 4 demand
drafts in favour of the complainant, as per the
details mentioned herein below:
Sl.No. Dated Drawn on / Bank Amount
1 13.12.2024 Yes Bank Rs.1,00,000/-
2 06.01.2025 Yes Bank Rs.1,00,000/-
3 05.02.2025 Yes Bank Rs.1,00,000/-
4 28.02.2025 Yes Bank Rs.1,00,000/-
5 13.12.2024 Cash Rs.5,000/-
All the four demand drafts are drawn on
YES Bank, Basaveshwara Nagar Branch,
Bengaluru.
6. That the above said amount is the full
and final settlement between the complainant
C.C.NO.2328/2023
10
and the accused. There is no any claim between
the parties with respect to the above
cheque/case, against each other.
7. In the event of default of payment within
the stipulated period, the complainant is at a
liberty to take appropriate legal action against
the accused to prosecute the case in respect of
the balance amount.
8. Both the complainant and the accused
on their own will and volition and without any
coercion or undue influence have resolved their
disputes amicably. Hence, prays to pass the
judgment as per joint memo.
17. By filing the above said joint memo the
accused has admitted the legally enforceable
debt/liability as stated by the complainant in the
complaint. Considering the joint memo and submission
of the learned counsel for the complainant as well as
the learned counsel for the accused, this court deem it
proper to grant time to the accused for repayment of
the amount to the complainant. Thus, material available
on record clearly discloses that the complainant have
complied all the ingredients under section 138 of
Negotiable Instruments Act. In view of forgoing
discussions, this court is of the opinion that the
complainant’s have established that the accused have
committed an offence punishable under section 138 of
C.C.NO.2328/2023
11
Negotiable Instruments Act. The joint memo filed by the
complainant and the accused is sufficient. Accordingly,
I answer point No.1 to 4 in the “Affirmative”.
18. POINT NO.5: In view of the reasons stated
and discussed on point No.1 to 4, I proceed to pass the
following:
:ORDER:
Acting under section 255(2) of Cr.P.C.
the accused is convicted for an offence
punishable under section 138 of N.I.Act.
The bail bond of the accused is
hereby stands cancelled.
The accused is sentence to pay fine
of Rs.3,00,000/- (Rupees three lakhs only)
to the complainant and the said fine
amount shall be paid to the complainant as
compensation as per Section 357(1)(b) of
Cr.P.C,.
Terms and conditions of the joint
memo becomes part and parcel of this
order.
In default of payment of the fine
amount as agreed upon, the accused shall
under simple imprisonment for 03 months.
(Dictated to the stenographer directly on
computer typed by her, corrected by me and
then judgment pronounced in the open court
on 26th day of December 2024)
C.C.NO.2328/2023
12(Soubhagya.B.Bhusher)
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.
ANNEXURE
List of witness examined on behalf of the complainant:
PW.1 : Sri.Ningappa Y.Morab.
List of documents marked on behalf of the complainant:
Ex.P.1 : Cheque. Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Proforma for Processing prosecution action. Ex.P.4 : Office copy of legal notice. Ex.P.5 & 6 : Postal acknowledgments. Ex.P.7 : Complaint. Ex.P.7(a) : Amended complaint.
List of witnesses examined on behalf of the accused:
-Nil-
List of documents marked on behalf of the accused:
-Nil-
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.
C.C.NO.2328/2023
13
26.12.2024 (Judgment pronounced in the Open
Court Vide Separate Sheet):ORDER:
Acting under section 255(2) of
Cr.P.C. the accused is convicted for an
offence punishable under section 138
of N.I.Act.
The bail bond of the accused is
hereby stands cancelled.
The accused is sentence to pay
fine of Rs.3,00,000/- (Rupees three
lakhs only) to the complainant and the
said fine amount shall be paid to the
complainant as compensation as per
Section 357(1)(b) of Cr.P.C,.
Terms and conditions of the joint
memo becomes part and parcel of this
order.
In default of payment of the fine
amount as agreed upon, the accused
shall under simple imprisonment for 03
months.
XXVIII Addl. Chief Judicial
Magistrate, Bengaluru City.